Uttarakhand High Court
Amrik Singh vs State Of Uttarakhand on 26 July, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 151 of 2012
Kundan Singh & another ....Appellants
Versus
State of Uttarakhand ....Respondent
With Criminal Appeal No. 154 of 2012 Amrik Singh ....Appellant Versus State of Uttarakhand ....Respondent Mr. Lokendra Dobhal, Mr. Aditya Pratap Singh and Mr. S.K. Mandal, Advocates for the appellants. Mr. Nandan Arya, Dy.A.G. for the State.
Judgment Reserved- 23.06.2017 Date of Judgment - 26.07.2017 Coram: Hon'ble Rajiv Sharma, J Hon'ble Sharad Kumar Sharma, J Per: Hon'ble Rajiv Sharma, J Criminal Appeal No.151 of 2012 is instituted against the judgment and order dated 10.05.2012, rendered by learned Sessions Judge, Champawat in Sessions Trial No.03 of 2011, whereby the appellants- accused, were charged with and tried for the offences under Section 302 of IPC. Appellants- Kundan Singh and Amrik Singh have been convicted and sentenced to undergo rigorous imprisonment for life under Section 302 of IPC and to pay a fine of Rs.10,000/- (each) and in default of payment of fine to undergo simple imprisonment for a period of one year.
2. Accused-Amrik Singh had already filed an independent Criminal Appeal No.154 of 2012 against the judgment and order dated 10.05.2012, rendered by learned Sessions Judge, Champawat in Sessions Trial No.03 of 2011. This appeal is not maintainable in view of 2 earlier Criminal Appeal No.151 of 2012 filed by him with appellant-accused Kundan Singh bearing.
3. The case of the prosecution, in a nutshell, is that PW1 Santosh Singh lodged a report on 16.11.2010 to the effect that on 15.11.2010, his aunt was cooking food in her house. His uncle Laxman Singh was lying on the cot. His brother-in-law Kundan Singh along with one Amrik Singh, who was the driver in Roadways, came to their house. One day before also these persons have come to his house. They have brought fish and liquor. They told his aunt to prepare the meals. His aunt told them that they have already taken their meals. He and his mother went to the house of his aunt. Thereafter, at the instance of his brother-in-law, his aunt prepared the food for his brother-in-law. He and his mother came back to their house. His aunt after cooking the food came to their house. Kundan Singh was forcing her to stay back. In the morning, his aunt went to her house. The door was locked from inside. She called him. He pushed the door and saw that his uncle was lying dead with injuries on his head. Portion of thatched roof was uprooted. The accused made their escape from the hole. The FIR was registered. PW12 Dr. Vibhuti Bhushan conducted the postmortem examination. According to postmortem report, the deceased died to ante mortem head injuries leading to hemorrhage and further leading to coma. The matter was investigated and the challan was put up against the accused after completing all the codal formalities. The prosecution has examined as many as twelve witnesses in its support. The statements of the accused were recorded under Section 313 of Cr.P.C. They have denied the case of the prosecution. The appellants- accused were convicted and sentenced, as noticed hereinabove. Hence, the present appeals.
34. Learned Counsel for the appellants have vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt. Learned counsel on behalf of the State has supported the judgment and order dated 10.05.2012.
5. We have heard learned counsel for both the parties and perused the judgment and record carefully.
6. PW1 Santosh Singh has deposed that his aunt was crying. He went to her house. His uncle Laxman Singh was lying dead. He lodged the FIR. In his cross- examination, he has deposed that he knew Kundan Singh. He was his brother-in-law. He did not know the second accused. In his cross-examination, he has admitted that the difference between his house and his uncle's house is 30-40 meters and if somebody talks, it is audible in his house. He has not heard any noise from the house of the deceased on 15.11.2010. Neither his aunt nor her children have come to his house to sleep. Neither he nor his mother has gone to her aunt's house. Rather he said that he had gone to sleep at 8 o'clock. He has also deposed in his cross- examination that police has not recovered blood soaked earth or sample earth, wood or stone in his presence.
7. PW2 Meena has deposed that on 15.11.2010 at about 8.00 PM, Kundan Singh and Amrik Singh had come to her house. Kundan Singh was working as a Driver in Roadways. They have already taken their meals. She has collected the items placed outside her house. The accused asked her to cook food for them but she refused. However, her husband asked her to cook food for them. She cooked the food for them and told the accused to go to their in-laws house. Amrik offered her Rs.1,000/-. Kundan was forcing her to stay back. Thereafter, she went to her Jethani's house. She slept there. In the morning, she came to her 4 house. The door was locked from inside. She went to her Jethani's house and told that the door of her house was locked from inside. PW1 Santosh and her Jethani came to her house. PW1 Santosh pushed the door. The door opened. They saw that the thatched roof was uprooted. Her husband was lying dead. He has received injuries on his head. In her cross-examination, she has admitted that whatever happens in her house could be heard in the house of PW1 Santosh Kumar. She has admitted that there was no enmity between the accused and her family. Nobody has ever misbehaved with her.
8. PW3 Shyam Singh has deposed that on 14.11.2010 and 15.11.2010 the accused have come to the house of Laxman Singh. He had seen them at 8:00 PM in the house of the deceased. The noise was coming from the house of the deceased. He saw that it was Kundan Singh. He came to know about the incident on 16.11.2010. In his presence, the blood soaked slipper and blood soaked earth was recovered.
9. PW4 Krishna Singh Meher has deposed that he came to know about the incident at 8:00 AM in the morning. Police had not come. Police has come after his arrival. He was declared hostile and cross-examined by learned District Govt. Counsel. In his cross-examination by the learned District Govt. Counsel, he has denied that stone and stick were recovered in his presence.
10. PW5 S.I. Ashok Kumar has deposed that the accused were nabbed. The stick and baton were recovered in the presence of PW4 Krishna Singh Meher and PW7 Jagdish Thawal.
11. PW7 Jagdish Thawal was also declared hostile. He has denied that any recovery was effected in his presence.
512. PW11 Inspector Dinesh Chandra Tiwari has deposed that the accused was nabbed. Stone and sticks were recovered in the presence of PW4 Krishna Singh Meher and PW7 Jagdish Thawal.
13. PW2 Meenu has categorically deposed that she had gone to the house of PW1 Santosh Kumar. However, according to PW1 Santosh Kumar neither PW3 Meenu nor her children have visited his house. Rather he has deposed that he had gone to sleep at 8:00 PM.
14. PW2 Meenu in her cross-examination has admitted that there was no enmity between her family and the accused. The relations were normal. The motive attributed to the accused that Amrik has offered Rs.1,000/- and Kundan Singh has threatened her to stay back. This version is not believable. The husband of PW2 Meenu was present in the house. The house of PW1 Santosh Kumar was also within a short distance.
15. It has also come on record that the noise from the house of the PW2 Meenu was audible in the house of PW1 Santosh Kumar. This is intriguing to notice that why the accused have escaped by removing the thatched roof after locking the door from inside. They could easily escape by locking the door from the outside. The accused Kundan Singh, according to prosecution case, has hit the deceased with stone and accused Amrik has hit the deceased with baton/stick. A disclosure statement was made by the accused in the presence of PW4 Krishna Singh Meher and PW7 Jagdish Thawal, as per the prosecution case. However, PW4 Krishna Singh Meher and PW7 Jagdish Thawal have not supported the case of the prosecution. According to them, neither any stone nor any baton/stick was recovered in their presence. Similarly PW1 Santosh Kumar has also 6 deposed that no recovery of blood soaked soil, stone or baton was made in his presence.
16. It has come in the statement of PW2 Meenu that the accused Kundan Singh used to give lot of respect to her. In case, the accused Kundan Singh has threatened PW2 Meenu, she should have bought this fact to the knowledge of her Jethani but she has not done so. The entire case is based on circumstantial evidence.
17. Their Lordships of the Hon'ble Supreme Court in 1984 Vol 4 S.C.C. 116 in the case of Sharad Birdichand Sarda Vs. State of Maharashtra have laid down the following conditions, the prosecution must satisfy in a case based on circumstantial evidence.
"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 Maharashtra19 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."
718. Their Lordships of the Hon'ble Supreme Court in 2012 (10) SCC 464, in the case of "Munish Mubar Vs. State of Haryana", have held that in a case of circumstantial evidence, circumstances must be fully established and all facts so established, must be consistent with hypothesis regarding guilt of accused. It is further held that in the case of circumstantial evidence motive assumes great significance and importance. Their Lordships have held as under:-
"28. Undoubtedly, in a case of circumstantial evidence, all the circumstances must be fully established and all the facts so established, must be consistent with the hypothesis regarding the guilt of the accused. The circumstances so established should exclude every other possible hypothesis except the one sought to be proved. The circumstances must be conclusive in nature. The circumstantial evidence is a close companion of factual matrix, creating a fine network through which there can be no escape for the accused, primarily because the said facts, when taken as a whole, do not permit us to arrive at any other inference but one indicating the guilt of the accused."
19. Their Lordships of the Hon'ble Supreme Court in (2013) 4 Supreme Court Cases 122, in the case of "Subodh Nath and another Vs. State of Tripura", have held that motive becomes relevant as an additional circumstance in a case where prosecution seeks to prove the guilt by circumstantial evidence only. Their Lordships have held as under:-
"6. Mr Chauhan next pointed out some discrepancies in the evidence of PW 2 and PW 13. He pointed out that PW 2 had stated in his evidence that PW 13 had told him that Appellant 1 (Subodh) had restrained him and had threatened him if he disclosed it to anyone that he had dealt an axe-blow on the deceased. PW 13, on the other hand, has not said that Appellant 1 (Subodh) had restrained him and threatened him, but has only said that Appellant 2 (Paritosh) ran after him. He also pointed out the discrepancies in the evidence of PW 1 and PW 13. He submitted that while PW 1 has stated that PW 13 had accompanied him to search for the deceased, PW 13 had stated that he never accompanied PW 1 to search for the dead body of the deceased. He also pointed out some discrepancies in the evidence of PW 2 and PW 19, 8 the investigating officer. He finally submitted that in this case the weapons with which the deceased was alleged to have been killed by the appellants have not been recovered nor any motive of the appellants to kill the deceased proved. He argued that this is a clear case in which the appellants should have been acquitted of the charge under Section 302 read with Section 34 IPC.
16. Once we find that the eyewitness account of PW 13 is corroborated by material particulars and is reliable, we cannot discard his evidence only on the ground that there are some discrepancies in the evidence of PW 1, PW 2, PW 13 and PW 19. As has been held by this Court in State of Rajasthan v. Kalki6, in the deposition of witnesses there are always normal discrepancies due to normal errors of observation, loss of memory, mental disposition of the witnesses and the like. Unless, therefore, the discrepancies are "material discrepancies" so as to create a reasonable doubt about the credibility of the witnesses, the Court will not discard the evidence of the witnesses. The learned counsel for the appellants is right that the prosecution has not been able to establish the motive of Appellant 1 to kill the deceased but as there is direct evidence of the accused having committed the offence, motive becomes irrelevant. Motive becomes relevant as an additional circumstance in a case where the prosecution seeks to prove the guilt by circumstantial evidence only."
20. Their Lordships of the Hon'ble Supreme Court in (2013) 12 Supreme Court Cases 551, in the case of "Rishipal Vs. State of Uttarakhand", have held that while motive does not have a major role to play in cases based on eyewitness account of incident, it assumes importance in cases that rest entirely on circumstantial evidence. Their Lordships have held as under:-
"15. The second aspect to which we must straightaway refer is the absence of any motive for the appellant to commit the alleged murder of Abdul Mabood. It is not the case of the prosecution that there existed any enmity between Abdul Mabood and the appellant nor is there any evidence to prove any such enmity. All that was suggested by the learned counsel appearing for the State was that the appellant got rid of Abdul Mabood by killing him because he intended to take away the car which the complainant Dr Mohd. Alam had given to him. That argument has not impressed us. If the motive behind the alleged murder was to somehow take away the car, it was not necessary for the appellant to kill the deceased for the car could be taken away even without physically harming Abdul Mabood. It was not as though Abdul Mabood was driving the car and was 9 in control thereof so that without removing him from the scene it was difficult for the appellant to succeed in his design. The prosecution case on the contrary is that the appellant had induced the complainant to part with the car and a sum of Rs 15,000. The appellant has been rightly convicted for that fraudulent act which conviction we have affirmed. Such being the position, the car was already in the possession and control of the appellant and all that he was required to do was to drop Abdul Mabood at any place en route to take away the car which he had ample opportunity to do during all the time the two were together while visiting different places. Suffice it to say that the motive for the alleged murder is as weak as it sounds illogical to us. It is fairly well settled that while motive does not have a major role to play in cases based on eyewitness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. (See Sukhram v. State of Maharashtra, Sunil Clifford Daniel v. State of Punjab and Pannayar v. State of T.N.) Absence of strong motive in the present case, therefore, is something that cannot be lightly brushed aside."
21. Their Lordships of the Hon'ble Supreme Court in (2015) 12 Supreme Court Cases 644, in the case of "Vijay Shankar Vs. State of Haryana", have summarized the principles of circumstantial evidence as under:-
"8. There is no eyewitness to the occurrence and the entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence vide Sharad Birdhichand Sarda v. State of Maharashtra. The same view was reiterated in Bablu v. State of Rajasthan."
22. The prosecution must prove each and every link in the chain to prove the guilt of the accused. All the circumstances must point out exclusively towards the guilt of the accused. In the cases based on circumstantial evidence, motive is also important.
1023. The prosecution has failed to prove its case beyond reasonable doubt against the accused. Accordingly, the appeals are allowed. The judgment order dated 10.05.2012 is set aside. The appellants are acquitted under Section 302 of IPC. The appellants are already on bail. They need not surrender. Their bail bonds and sureties are discharged.
24. A copy of this judgment along with the LCR be sent to the court below for compliance forthwith.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) NISHANT