Deepak Singh Bisht vs State Of Uttarakhand on 25 August, 2025

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Uttarakhand High Court

Deepak Singh Bisht vs State Of Uttarakhand on 25 August, 2025

Hon'ble Ravindra Maithani, J. (Oral) Instant appeal is preferred against the judgment and order dated 21.05.2018/28.05.2018 passed by the Sessions Judge, Almora in Sessions Trial No. 19 of 2017, State v. Deepak Singh Bisht, by which the appellant has been convicted under Section 302, 201 IPC and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ("SC/ST Act") and sentenced as hereunder:-

                      (i)    Under      Section        302      IPC    -      rigorous

                             imprisonment        for    life    with     a     fine   of

Rs. 40,000/-. In default of payment of fine, to undergo additional imprisonment for a period of one year.

(ii) Under Section 201 IPC - rigorous imprisonment for a period of seven years with a fine of Rs. 5,000/-. In default of payment of fine, to undergo additional imprisonment for a period of six months.

(iii) Under Section 3(2)(v) of the SC/ST Act -

rigorous imprisonment for life with a fine of Rs. 5,000/-. In default of payment of fine, to undergo additional imprisonment for a period of one year.

2. Heard learned counsel for the parties and perused the record.

3. Briefly stated, the prosecution case is as follows. The deceased Pani Ram was a Village Development Officer in Village Gunaditya Pali, District Almora. On 20.04.2017, at about 06:00 in the morning, PW 2 Smt. Beena Devi, the wife of the deceased, received a telephone call that her husband is lying dead in the Verandah of the Horticulture Department Building in village Gunaditya Pali. She informed it to her nephew PW 1 Surendra Kumar. Thereafter, PW 1 Surendra Kumar along with PW 3 Kamal Kumar, PW 9 Pooran Ram and others, reached at Village Gunaditya Pali. He lodged a report. According to it, the dead body of the deceased was lying in the Verandah on the ground floor of the Horticulture Department building; there were multiple injuries on his body; blood was oozing out and it was apparent that some person has tried to wipe out the blood. According to the FIR, PW 1 Surendra Kumar was told by the persons present there that in the previous night, the deceased, the appellant and Khim Singh Kafaliya had meals together. There were bloods stains on the railing of stairs to the first floor. In the first floor room ("the room"), the cot was broken. There was blood around. Based on this report lodged by PW 1 Surendra Kumar, Case Crime No. 2 of 2017 was lodged at 3 Revenue Police Station Pali, District Almora under Sections 302, 201 IPC and Section 3(2) (v) of the SC/ST Act against the appellant.

4. The room at the first floor was sealed. Articles were taken into possession by the forensic expert. A site plan was prepared. The inquest of the dead body was prepared on the same day. The post-mortem of the body was conducted on 21.04.2017. According to the doctor, the cause of death was 'head injury, which was caused by a blunt object'. The following injuries were also noted on the person of the deceased:-

"(a) Fracture of scalp. There were fractures in temporal bone and occipital bone.

                  (b)       Bruises on left arm and right chest.
                  (c)       Abrasions on face.
                  (d)       Fracture in right ulna, right radius and right
                            mandible.
                  (e)       Incised would 2.5 x 2.5 cm. on right pinna.
                  (f)       Contusions almost on all the body, which is known
                            as post-mortem lividity.
                  (g)       All internal organs were normal except the brain.
                  (h)       Hematoma in temporal area measuring about 3 x 5

cm in frontal part of brain. 1 x 3 cm hematoma in right occipital area. There was blood in entire brain, which generally is not found."

5. Articles were sent for forensic examination. Forensic report was also received, which confirmed that on the blood stains, which were detected from the room, the DNA of the deceased was detected, except one polythene bag, which was collected from the room, which had DNA of some other human male source.

6. After investigation, the charge sheet was submitted against the appellant under Sections 302, 201 IPC and Section 3(2)(v) of the SC/ST Act.

7. On 31.03.2017, charges under Sections 302, 201 IPC and Section 3(2) (v) of the SC/ST Act were framed against the appellant, to which the appellant denied and claimed trial.

8. In order to prove its case, the prosecution examined as many as 17 witnesses, namely, PW 1 Surendra Kumar, PW 2 Smt. Beena Devi, PW 3 Kamal Kumar, PW 4 Khimanand Paliwal, PW 5 Anand Prasad, PW 6 Vinod Singh Birodiya, PW 7 Khim Singh Bisht, PW 8 Uma Pati Pandey, PW 9 Pooran Ram, PW 10 Diwan Singh, PW 11 Krishna Kumar, PW 12 Shyam Lal Verma, PW 13 Jagdish Prasad, PW 14 Arjun Singh, PW 15 Bahadur Singh Kumalta, PW 16 Dr. Pramod Kumar and PW 17 R.S. Toliya.

9. After the prosecution evidence was over, the appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 ("the Code"). According to him, the witnesses have given false evidence against him. In his defence, he examined Dr. B.B. Joshi as DW1 and Umed Singh as DW 2.

10. After hearing the parties, by the impugned judgment and order the appellant has been convicted under Sections 302, 201 IPC and Section 3(2) (v) of the SC/ST Act and sentenced as stated hereinbefore.

11. Learned counsel for the appellant submits that the prosecution has utterly failed to prove the case beyond reasonable doubt against the appellant; he has only been convicted on the ground that the room belongs to the appellant, where the blood of the deceased was detected. He submits that it has not been proved 5 that the room belongs to the appellant. It is argued that, in fact, merely on hearsay evidence and uncorroborated testimonies, the conviction is based, therefore, the impugned judgment and order deserves to be set aside. He refers to the statements of the witnesses in support of his contentions.

12. Learned State Counsel submits that a few things are admitted, namely, that the death was homicidal; the room was a residential room of the appellant where the blood of the deceased was detected on multiple articles. He also raised the following points in his submissions:-

(i) PW 2 Smt. Beena Devi has stated that the deceased was staying in the house of PW 5 Anand Prasad. She has also stated that the house and the office of the deceased was in the same building; PW 5 Anand Prasad has also stated that the deceased was his tenant, which was a separate building; the building of the Horticulture Department was also separate.

(ii) The appellant in his examination under Section 313 of the Code, in answer to Question No. 12, has stated that the deceased was staying in the house of PW 5 Anand Prasad.

(iii) In the building of Horticulture Department, there was one room for the office and one room was vacant; the appellant was the sole caretaker of the building.

(iv) The appellant was either residing in the room, where the blood of the deceased was detected or, 6 at least, it was within his specific knowledge as to who was residing in that room. Therefore, the burden to prove this fact is on the appellant under Section 106 of the Indian Evidence Act, 1872 ("the Evidence Act").

(v) During investigation, the appellant had never disputed that the room, from which various articles were taken into custody by the forensic expert PW 14 Arjun Singh, did not belong to the appellant. Referring to the statement of PW 5 Anand Prasad, he would submit that he is the first witness, who reached at the spot and saw the appellant moving upstairs with a jerrycan in his hand. He would submit that this fact indicates that that the appellant was moving to his residence, which was situated at the first floor of the building of the Horticulture Department so as to wipe out the fresh blood, which was present there.

13. Learned counsel for the informant also submits that the prosecution has been able to prove its case beyond reasonable doubt; the chain is complete. He also raised the following points in his submissions:-

(i) The presence of the appellant at the place of incident is not disputed; he himself has admitted that he made a telephone call to the Village 7 Pradhan; thereafter, many persons reached at the spot.

(ii) PW 2 Smt. Beena Devi, the wife of the deceased, has stated that the appellant used to abuse the deceased with caste coloured remarks, which is the motive to eliminate the deceased.

(iii) It is argued that the prosecution has been able to prove its case beyond reasonable doubt that the room belonged to the appellant and none other.

(iv) The injuries corroborate that the deceased was killed brutally. The mental condition of the appellant was also examined and he was found to be a fit person.

(v) It is argued that all the circumstances have been discussed in detail by the court below, which is a reasoned order; it does not warrant any interference.

14. One of the basic principles of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt. A person may have killed someone is not a case proved beyond reasonable doubt. It should be with certainty that the person must have killed or has killed or, in fact, killed another person.

15. In the case of circumstantial evidence, in fact, each circumstance should be so interconnected so as to exclude every possibility of innocence of the person so charged. 8

16. In the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984)4 SCC 116, the Hon'ble Supreme Court has laid down five golden principles, which are applicable in the case of circumstantial evidence. In para 153 of the judgment, the Hon'ble Supreme Court observed as follows:-

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be"

established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807:

SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

17. In fact, what is proof beyond reasonable doubt and what are those aspects, have been discussed in the case State of Karnataka v. J. Jayalalitha and others, (2017) 6 SCC 263. In para 9 222 to 224, the Hon'ble Supreme Court discussed the law on this point and observed as follows:-

"Burden of proof and benefits of doubt

222. That the burden of proof of a charge is on the prosecution subject to the defence of insanity and any other statutory exception has been authoritatively proclaimed in Woolmington v. Director of Public Prosecutions [Woolmington v. Director of Public Prosecutions, 1935 AC 462 (HL)] and testified by the following extract : (AC pp. 481-82) "... Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.

No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."

223. In Shivaji Sahabrao Bobade v. State of Maharashtra [Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033] , Hon'ble Krishna Iyer, J., in his inimitable expressional felicity cautioned against the dangers of exaggerated affinity to the rule of benefit of doubt as hereunder : (SCC p. 799, para 6) "6. ... The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author 10 (Glanville Williams in "Proof of Guilt") has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated "persons" and more severe punishment of those who are found guilty."

224. In Collector of Customs v. D. Bhoormall [Collector of Customs v. D. Bhoormall, (1974) 2 SCC 544 : 1974 SCC (Cri) 784] , this Court had observed (SCC p. 553, para 30) that in all human affairs, absolute certainty is a myth and the law does not require the prosecution to prove the impossible. It was highlighted that all that was required is the establishment of such a degree of probability that a prudent man may on this basis believe in the existence of the fact in issue. It was exposited that legal proof is thus not necessarily perfect proof and is nothing more than a prudent man's estimate as to the probability of the case."

18. During the course of arguments, reference has been made to some of the statements given by the appellant in reply to the questions under Section 313 of the Code. It may be noted that the answers given by an accused in reply to the questions under Section 313 of the Code is not a substantial piece of evidence. At the most, it may lend credence to the evidence, which has already been established and proved by the prosecution.

19. In the case of Mohan Singh v. Prem Singh and another, (2002) 10 SCC 236, this aspect has been adverted to by the Hon'ble Supreme Court and in para 27 and 30, the Hon'ble Supreme Court observed as follows:-

"27. The statement made in defence by the accused under Section 313 CrPC can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 of the Code of Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled that statement under Section 313 CrPC of the accused can either be relied in whole or in part. It may also be 11 possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. See Nishi Kant Jha v. State of Bihar [(1969) 1 SCC 347 : AIR 1969 SC 422] : (SCC pp. 357-58, para 23) ... ....... ...... ...... ...... ...... ..... ..... ...... ...... ...... ...... ...... ......................................................................................................

30. The statement of the accused under Section 313 CrPC is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant [(1969) 1 SCC 347 : AIR 1969 SC 422] by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 CrPC cannot be made the sole basis of his conviction."

20. Needless to say that every incriminating piece of evidence, which the prosecution proposes to use against an accused, has to be placed before the accused so as to give an opportunity to explain. On this aspect, in the case of Ashok Kumar v. State of Haryana, (2010) 12 SCC 350, the Hon'ble Supreme Court observed "Firstly, every material piece of evidence which the prosecution proposes to use against the accused should be put to him in clear terms and secondly, the accused should have a fair chance to give his explanation in relation to that evidence as well as his own versions with regard to alleged involvement in the crime. This dual purpose has to be achieved in the interest of the proper administration of criminal justice and in accordance with the provisions of CrPC. Furthermore, the statement under Section 313 CrPC can be used by the Court insofar as it corroborates the case of the prosecution. Of 12 course, conviction per se cannot be based upon the statement under Section 313 CrPC".

21. Before the arguments are appreciated, it would be apt to examine the evidence adduced by the prosecution.

22. PW 1 Surendra Kumar is the first informant. He is the nephew of PW 2 Smt. Beena Devi, who is the wife of the deceased. According to him, on 20.04.2017, at about 06:30 a.m., he was told by his aunt PW 2 Smt. Beena Devi that the dead body of the deceased was lying on the ground floor of the building of the Horticulture Department. Thereafter, he reached the place of incident. He saw the dead body, which was bleeding from head. There were multiple injuries on the dead body and it was revealing that some person had tried to wipe out the blood. In para 5 of the statement, he says that the villagers had then told it to him that in the previous night, deceased along with the appellant and one Khim Singh were in the room of the appellant and they all had meal together; thereafter, the dead body of the deceased was detected. He has proved the FIR, which was lodged by him, as Ex. A-1. According to him, the forensic team reached the spot; they had collected the material from the room and prepared a recovery memo, which is Ex. A-2. This witness has also proved the specimen seal, which are Ex. A-3 and A-4. He has also proved the articles, which were recovered from the room, which are Ex. 1 to Ex. 45. What is important is that there was a pressure cooker, Ex. 2, which was slightly flattened. This witness has proved it. This witness has also proved one carry bag with wrapper, Ex. 10, which according to him, had blood stain on it. It has a slight significant at a later 13 stage, because according to forensic science laboratory report, this carry bag had blood from another male human source and it had no blood of the deceased. The question arises as to whose blood was it?

23. PW 2 Smt. Beena Devi did receive the telephone call in the morning of 20.04.2017. She has stated about it. According to her, the deceased was staying in the house of PW 5 Anand Prasad and adjacent to him was the room of the appellant. What is important about this witness is that she has proved the pressure cooker, Ex. 2, which was found in the room and according to this witness, this pressure cooker was theirs.

24. PW 3 Kamal Kumar and PW 9 Pooran Ram are other witnesses, who accompanied PW 1 Surendra Kumar to the place of incident. They have given statement accordingly that the dead body of the deceased was found in the Verandah of the building of Horticulture Department; there was blood around and they were told that the room at the first floor, where the blood was detected, belongs to the appellant.

25. PW 4 Khimanand Paliwal is the husband of the Village Pradhan. He received the telephone call about the incident. According to him, the phone was from the appellant. He also reached the place of incident and from near the dead body, the appellant picked up a phone and called the wife of the deceased. He was a witness to the inquest. He has also stated about the site plan and other documents.

26. PW 5 Anand Prasad is the landlord of the deceased Pani Ram. He has stated that the deceased was his tenant. He was told about the incident. He also reached the place of incident and saw the dead body and the blood around. He did not support the prosecution case in full. He was declared hostile on certain aspects.

27. PW 6 Vinod Singh Birodiya has stated about the inquest report. PW 7 Khim Singh Bisht and PW 11 Krishna Kumar both have not supported the prosecution case. They were declared hostile.

28. PW 8 Uma Pati Pandey was posted as the Village Development Officer in Dholadevi. He also reached at the place of incident and has stated about the recovery, inquest and sealing of the dead body, etc. He has not stated anything about the incident as such as to who killed the deceased.

29. PW 10 Diwan Singh was posted as the Assistant Development Officer and was also the incharge of Horticulture Department Unit of Gunaditya Pali. According to him, the appellant was working in the Horticulture Department as a gardener on contractual basis; the Horticulture Department building at Gunaditya is double storey, etc.; on the ground floor is the godown and on the first floor, there are two rooms, out of which, one is for office and another is vacant; the appellant is the gardener of the building. He has proved the appointment letter of the appellant. According to him, he never saw the appellant staying in the first floor of the building of the Horticulture Department and he was not appointed as watchman of the building.

30. PW 12 Shyam Lal Verma was the superior officer of the deceased. He has proved certain documents with regard to caste, etc. of the deceased.

31. PW 13 Jagdish Prasad is the Revenue Sub Inspector, who received the FIR and recorded the chik FIR. According to him, he reached the place of incident. According to him, blood stained articles were taken into custody by the forensic team. He also proved the inquest, sealing of the body for post-mortem, sealing of articles, etc.

32. PW 14 Arjun Singh is the forensic team member. He also reached the place of incident. According to him, from the room, certain articles were taken into custody. The room was sealed.

33. PW 15 Bahadur Singh Kumalta is a Naib Tehsildar. He was given investigation of the matter. He arrested the appellant, conducted investigation for some time and thereafter investigation was transferred to PW 17 R.S. Toliya.

34. PW 16 Dr. Pramod Kumar is the person, who conducted the post-mortem of the deceased. According to him, the cause of death was 'head injury, which was caused by a blunt object'

35. PW 17 R.S. Toliya is the Investigating Officer. He conducted the investigation, took permission to prosecute the appellant and after investigation, submitted the charge sheet. 16

36. On behalf of the appellant, two witnesses have been examined. DW 1 Dr. B.B. Joshi has stated that he examined the appellant and found that his mental condition was perfectly right. DW 2 Umed Singh has stated that on 12/13.04.2017, he had gone to invite the deceased for a wedding. The deceased was staying in the room of the Horticulture Department. This is the entire evidence.

37. Some facts are not in dispute, which are as follows:-

(i) For the first time, it is the appellant, who informed the husband of the Village Pradhan about the fact that the dead body of the deceased is lying in the Verandah on the first floor of the Horticulture Department Building at Gunaditya Pali.

(ii) There was blood all around the dead body, which was leading through the staircase to the first floor.

(iii) Various articles were recovered from the room, which were taken into custody by PW 14 Arjun Singh for forensic examination.

(iv) Blood was found on all those articles, but on a carry bag, which was recovered from the room, the blood was of some another human male source. It has no blood of the deceased.

38. In view of the settled principle of law, the prosecution has to establish beyond reasonable doubt that it is the appellant 17 and the appellant alone, who has committed this incident. What is being argued on behalf of the prosecution is that the appellant was present on the spot early in the morning and he was staying on the room at the first floor of the building of the Horticulture Department. Various articles, which were recovered from the room had the blood of the deceased as established by the forensic science laboratory.

39. The question is whether the room belongs to the appellant. PW 10 Diwan Singh is the superior officer of the Horticulture Department. He has stated that the room was not allotted to the appellant (statement of PW 10 Diwan Singh, Para

10). According to him, the appellant was not appointed as a watchman either. According to this witness, on the first floor, one room was office and another room was vacant.

40. In so far as PW 1 Surendra Kumar, PW 3 Kamal Kumar and PW 9 Pooran Ram are concerned, they had no personal knowledge as to who was residing in the room. According to them, the villagers and other persons, who were present at the spot, told them that the room belongs to the appellant.

41. There is a very important factor in the instant case. According to the FIR, PW 1 Surendra Kumar was told by the persons present on the place of incident that in the previous night, the appellant, Khim Singh and the deceased all had their meals in the room. Who told it to PW 1 Surendra Kumar that in the previous night the deceased was with the appellant? This has not been even shown by the prosecution.

42. PW 1 Surendra Kumar has further, in para 33 of his statement, reiterated as to what is stated in the FIR. According to him, in the presence of Naib Tehsildar and Patwari, the villagers had told it to him that in the previous night the appellant, Khim Singh and the deceased had meals together in the room. Those villagers are not before the Court.

43. PW 2 Smt. Beena Devi is the wife of the deceased. She tells that her husband was staying in the house of one Anand Prasad. The house of Anand Prasad is at a distance, on the North- West of the Horticulture Department building at Gunaditya Pali. In para 2 of her statement, PW 2 Smt. Beena Devi states that Deepak Bisht was his neighbour. Does it mean that Deepak Bisht was also staying in the same building of Anand Prasad? But, even this is not the prosecution case.

44. On behalf of the prosecution, statement of PW 2 Smt. Beena Devi has been referred to infer that it reveals a motive to the appellant to kill the deceased. According to the prosecution, this witness has stated that at times, the appellant would abuse the deceased with caste coloured remarks. On the one hand, it is being suggested by the prosecution that in the previous night, the appellant, the deceased and Khim Singh had meals together, whereas, on the other hand, a weak kind of this motive is inferred to.

45. If the statements of PW 1 Surendra Kumar, PW 3 Kamal Kumar, PW 4 Khimanand Paliwal, PW 8 Uma Pati Pandey 19 and PW 9 Pooran Ram are read, according to these witnesses, they are not sure as to whose residential room was it, from where the blood stained articles were recovered (Because PW 1 Surendra Kumar has stated that he was told by the Naib Tehsildar that the room belong to the appellant; PW 3 Kamal Kumar also stated that he was told by the Patwari that the room belongs to the appellant. Similarly, PW 4 Khimanand Paliwal tells that he does not know as to whose room was it. PW 8 Uma Pati Pande tells that the Patwari had told it to him that the room belongs to the appellant. PW 9 Pooran Ram also did not have personal knowledge as to whose room was it.).

46. As stated, PW 2 Smt. Beena Devi has stated that her husband was staying in the house of Anand Prasad and "Bagal ke kamre me Deepak rahta tha" (Deepak was staying in the adjoining room). Does it mean that the appellant was not staying in the room?

47. PW 5 Anand Prasad is the person in whose house, according to the prosecution, the deceased was staying. In para 19 of his statement, he tells that the appellant used to travel from his home to the office. He would come in the morning and leave in the evening. He never saw the appellant staying in the room. As stated, PW 10 Diwan Singh, superior officer of the Horticulture Department has stated that he never saw the appellant staying in the room. This witness also says that the room had never been allotted to the appellant.

48. PW 13 Jagdish Prasad is the person, who has stated that in the room, the appellant was residing. PW 13 Jagdish Prasad is a Revenue Sub Inspector. But, how could this witness know that 20 the appellant was residing in the room? Similarly, PW 15 Bahadur Singh Kumalta has also stated that the appellant was staying in the room, but this fact was not told by this witness to the Investigating Officer, as told by PW 17 R.S. Toliya.

49. Whether a person resides in a room or not, apart from oral evidence, can be established through multiple other facts i.e. his belongings, finger prints, DNA matching, etc., to connect a person with the room. In the instant case, nothing has been brought on record by the prosecution which would connect the room to the accused. There are some oral evidences, like the statements of PW 13 Jagdish Prasad and PW 15 Bahadur Singh Kumalta. But, they had no basis as such. How could they say that the room belongs to the appellant? The room was situated at the first floor building of the Horticulture Department. There were multiple articles recovered from the room, which had blood stained and the blood belonged to the deceased. As stated, there was a carry bag, which had blood from different male human resource. Whose blood was it? It was not detected.

50. On behalf of the prosecution, it is also argued that if there is any defect in the investigation, that may not give any benefit to the accused. This is true that every defect may not lead to acquittal. But, then the prosecution has to independently prove its case beyond reasonable doubt. The conviction cannot be based on mere possibility. It has to be proved, as stated, beyond reasonable doubt.

51. Truly, it is a case of brutal killing. In fact, according to the prosecution, the pressure cooker by which the head of the 21 deceased was hit had flattened. The impact could be much heavier. The prosecution has not found a single piece of evidence that there was blood found on the cloths of the appellant.

52. What is being argued that the appellant was present at the spot. The presence of the appellant in the morning at the place of incident cannot be said to be abnormal. He was a gardener appointed, on contract basis, by the Horticulture Department. He has stated that because the water runs in the morning only, he had come early in the morning in order to fill the water. Even if this explanation is found to be false, this part of evidence per se may not be the sole basis of conviction of the appellant. There is no other link as such connecting the appellant to the offence.

53. PW 2 Smt. Beena Devi has also stated that her husband i.e. the deceased was staying with one 'Tiwari'. Who is that Tiwari? Why has he not been examined? PW 2 Smt. Beena Devi has also stated that the pressure cooker, which was recovered from the room, is their pressure cooker. The question is if the deceased was staying in the house of PW 5 Anand Prasad, how the pressure cooker reached in the room at a distance in the building of Horticulture Department. This has even not been clarified by the prosecution. And further, if the appellant was staying in the room, how the pressure cooker of the deceased was found from the room.

54. On behalf of the prosecution, it is argued that the appellant was working in the Horticulture Department Building at Gunaditya Pali. If he was not residing in the room, he must be 22 knowing as to who was the occupant of the room, therefore, burden is on him under Section 106 of the Evidence Act.

55. Section 106 of the Evidence Act with illustration reads as follows:-

"106. Burden of proving fact especially within knowledge. -- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."

56. The Horticulture Department Building at Gunaditya Pali is at a public place. Admittedly, on the first floor, there was office of the Horticulture Department in the building and adjacent to the room, one room was vacant, as told by PW 10 Diwan Singh. It was almost a public place. It cannot be said that the appellant only has especial knowledge as to how the room adjacent to the office room on the first floor of the Horticulture Department Building at Gunaditya Pali was used. This does not attract the provisions of Section 106 of the Evidence Act. Therefore, the arguments made on behalf of the prosecution on that aspect has less merit for acceptance.

57. In view of the foregoing discussions, we are of the considered view that the prosecution has not been able to prove that the room on the first floor of the Horticulture Department Building was the residential room of the appellant. 23

58. Having considered the entire material available on record, this Court is of the view that the prosecution has utterly failed to prove the charges levelled against the appellant and the appellant ought to have been acquitted of the charges levelled against him. Learned court below has committed an error in convicting and sentencing the appellant. Therefore, the appeal deserves to be allowed.

59. The appeal is allowed. The judgment and order dated 21.05.2018/28.05.2018 passed by the Sessions Judge, Almora in Sessions Trial No. 19 of 2017, State v. Deepak Singh Bisht, whereby the appellant has been convicted and sentenced for the charges under Sections 302, 201 IPC and Section 3(2)(v) of the SC/ST Act is set aside.

60. The appellant Deepak Singh Bisht is acquitted of the charges under Sections 302, 201 IPC and Section 3(2)(v) of the SC/ST Act.

61. The appellant is in jail. Let he be released forthwith, if not wanted in any other case, subject to his furnishing personal bond and to sureties each of the like amount to the satisfaction of the court concerned under Section 437A of the Code.

62. Let a copy of this judgment along with the trial court record be sent to the court concerned.

(Alok Mahra, J.)                            (Ravindra Maithani, J)
  25.08.2025                                     25.08.2025


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