Uttarakhand High Court
Hidayat Ali vs State Of Uttarakhand on 18 May, 2022
Author: Ramesh Chandra Khulbe
Bench: Ramesh Chandra Khulbe
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
THE ACTING CHIEF JUSTICE SHRI SANJAYA KUMAR MISHRA
AND
JUSTICE SHRI RAMESH CHANDRA KHULBE
CRIMINAL APPEAL NO.17 OF 2017
Reserved on: 21.04.2022
Delivered on: 18.05.2022
Between:
Hidayat Ali ...... Appellant
Vs.
State of Uttarakhand ...... Respondent
Counsel for the appellant : Mr. Sajjad Ahmed,ld. counsel.
Counsel for respondent : Mr. J. S. Virk, ld. DAG.
Upon hearing the learned Counsel, the Court
made the following
Judgment: (Per Shri Justice Ramesh Chandra Khulbe)
This criminal appeal is preferred against the
judgment and order dated 03.12.2016 passed by the
Court of 2nd Additional Sessions Judge Roorkee, District
Haridwar in Sessions Trial No.44 of 2014, "State vs.
Hidayat Ali", whereby the appellant has been convicted
by the trial Court for the offence punishable under
Section 302 of IPC and sentenced him to undergo
rigorous imprisonment for life along with a fine of
Rs.5000/- and in default to pay the same, the accused
was directed to further undergo rigorous imprisonment
for three months.
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2. Briefly the facts in brief are that PW-1
Geetika Gupta gave a written report (Ex. Ka. 1) on
28.08.2013 at P.S Kotwali Roorkee with the averments
that his father Arun Kumar Gupta, who was staying in
the Campus of I. I. T. Roorkee had been killed by
slitting his throat in the night of 27.08.2013. She was
informed about the incident through her uncle.
3. On the basis of said report, the case was
registered on 28.08.2013 at 16:40 hours at P. S.
Kotwali Roorkee against unknown persons. The matter
was investigated and on completion of investigation a
charge-sheet (Ex. Ka. 12) was submitted on
27.12.2013 against the accused-appellant.
4. After complying with the provisions of
Section 207 Cr.P.C, the case was committed to the
Court of Sessions.
5. Learned Sessions Judge, Haridwar framed
the charge against the accused-appellant u/s 302 IPC
on 25.02.2014, to which the accused-appellant pleaded
not guilty and claimed to be tried.
6. The prosecution in order to prove its case
produced PW-1 Geetika Gupta (informant), PW-2
Altaaf, PW-3 Charu, PW-4Kusha Aggarwal, PW-5 I.O.
S. I. Ram Kumar Juyal, PW-6 Kuldeep Singh Negi,
PW-7 Dr. S. N. Singh (who conducted autopsy), PW-8
Arvind Kumar Aggarwal, PW-9 Virender Kumar Garg,
PW-10 I.O Inspector Jasveer Singh Pundir, PW-11 S. I.
Pradeep Tomar and PW-12 I.O Rajeev Rauthan, who
completed the investigation and submitted
charge-sheet.
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7. Thereafter, the statement of accused-
appellant was recorded u/s 313 Cr. P. C. The accused-
appellant pleaded false implication and also stated that
he is innocent, the deceased committed suicide and the
police have falsely implicated him at the instance of
some informant. In defence he produced DW-1 Mohd.
Aftaaf and DW-2 Suman.
8. After examination of entire evidence on
record, the trial Court came to the conclusion that the
prosecution has proved its case against the accused-
appellant to the hilt and accordingly it proceeded to
convict and sentence the accused-appellant as
discussed in paragraph no.1 of this judgment.
9. PW-1 Geetika Gupta has supported the
averments of the FIR and stated that on 27.08.2013
she got information through her uncle Shri B. K. Gupta
that her father had been killed by slitting his neck and
an effort to burn him was also made. When she made a
phone call to his father's mobile number, it was found
to be switched off. Her uncle further informed her that
the phone and wallet of her father were also missing.
With these averments she filed the FIR (Ex. Ka. 1).
10. PW-2 Altaaf, who is said to be a witness of
recovery, did not support the prosecution story and
was declared hostile.
11. PW-3 Charu is another daughter of deceased.
She has deposed that her father used to take the
appellant along whenever he would go out. She further
stated that she used to talk her father on daily basis.
On one day her father informed her that he has
stopped taking the appellant along with him, since the
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appellant would always demand money from her father
and he had an evil eye on the domestic articles. About
the occurrence of 22.08.2013, she was informed by her
father that appellant had forcibly entered the house on
which her father scolded the appellant as to why he
entered the room without ringing the bell. Then, the
appellant demanded money from her father to which
her father denied. The appellant then threatened her
father to see him in future. On receiving the
information about the death of her father she came to
Roorkee where the people of vicinity and the domestic
maid Suman informed her that they saw the appellant
downside the house on the day of occurrence.
12. PW-4 Kusha is another daughter of
deceased. She has also supported the fact that the
appellant was employed as a driver by her father and
she used to talk to her father one to two times a day.
In the month of November, 2012 when she came to
meet her father, he informed her that the appellant has
taken some money on a false pretext and her father
also directed Pappu (brother of appellant) not to send
appellant to him in future. In the month of December,
2012 her father came to meet her, then also he
informed her about the suspicion on the appellant of
stealing some diamond, US Dollars her father also
informed her about the occurrence of 22.08.2013 on
23rd and 25th August, 2013 that the appellant entered
the house without informing and demanded money
from him. When his father scolded him why he entered
the room without permission, the appellant threatened
that he would not leave him. On receiving the
information about the death of her father they had
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gone to Roorkee where the neighbours informed her
that the appellant was seen downside the house on the
date of occurrence and when the domestic maid Suman
asked the appellant the reason of his presence, he
replied that he came to meet her father.
13. PW-5 S. I. Ram Kumar Juyal, who is a formal
witness of the case, has proved about carrying out
investigation besides recovery of a knife on the
pointing out of the appellant.
14. PW-6 Kuldeep Singh Negi is the witness of
recovery of bloodstained bed-sheet and pillow cover
from the residence of deceased.
15. PW-7 Dr. S. N. Singh is the person who
conducted the post-mortem examination on the body
of the deceased. According to him, the following ante-
mortem injuries were found:-
a. Deep burn with 13 Cm in width trt from right
Limbo inguinal region to, same width over back
extending upto left iliac spine;
b. 3x1 cm muscle deep incised wound over left
side of chest, 8 cm below nipple.
c. 2X1X2 cm deep incised wound left lateral
supraclavicular area.
d. 3X2 cm incised wound muscle deep just
below left ear pinna.
e. 13X5 cm deep upto to trachea transecting
tracheal neuromuscular bundle trt over anterior
aspect of neck;
f. 5x1 cm incised wound over right cheek,
oblique and vertically directed.
g. 1x1 cm incised wound just below right ear
lobule.
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In the opinion of the Medical Officer, the cause of
death is Asphyxia and haemorrhage due to
ante-mortem throat injury.
16. PW-8 Arvind Kumar Agarwal and PW-9
Virender Kumar Garg are the formal witnesses, who
have proved their signatures on the inquest report.
17. PW-10 Inspector Jasbeer Singh Pundir is
another I.O of the case. He has proved the fact of
preparation of recovery memos of the weapon used in
the crime and the mobile phone of the deceased said to
be lifted by the appellant.
18. PW-11 S. I. Pradeed Tomar is also a formal
police witness of the case. He has proved regarding
preparation of some necessary documents prepared
after the recovery of dead body.
19. PW-12 S. I. Rajeev Rauthan is another I. O
of the case who has also proved the fact of carrying out
investigation and after culminating the same, he
submitted the charge-sheet (EX. Ka. 13).
20. Thereafter, the statement of accused was
recorded u/s 313 Cr. P.C in which he pleaded not guilty
and also took the plea of false implication. The
following two witnesses were examined on behalf of
appellant.
21. DW-1 Mohd. Altaaf has mainly proved the
fact that he did not give any mobile phone to the
appellant on 29.09.2013.
22. DW-2 Suman is the person who is said to be
the domestic help in the house of deceased. She has
stated that she did not see the appellant nearby the
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place of occurrence on 27.08.2013. According to her,
when she came inside the house, the deceased was
lying flat on the face and there was fire broke out on
his back. She brought the water and extinguished the
fire.
23. We have heard learned counsel for the
parties and carefully perused the entire evidence
available in the file of the Court.
24. It is argued by learned counsel for the
appellant that there is no eye-witness of the scene. The
Police Party did not record the disclosure statement of
the accused, accordingly, the recovery allegedly made
at the pointing out of the appellant regarding a knife
and two mobile phones is irrelevant.
25. Per Contra learned Deputy Advocate General
appearing for the State argued that there is sufficient
evidence on record to convict the appellant, and there
is no illegality in the impugned judgment.
26. As per the FIR, the occurrence took place on
27.08.2013. PW-1 Geetika received the information
about the incident from her uncle, and accordingly, she
submitted information with the police station on
28.08.2013. As per her statement, she did not see the
occurrence.
27. PW3 Charu and PW-4 Khusha, who are also
the daughters of the deceased, were abroad at the
time of incident, which shows that all the three
daughters PW-1 Geetika, PW3 Charu and PW4 Khusha
were not at the place of incident.
28. As per the statement of PW4 Kusha, Smt.
Suman was the cook of the deceased, who always used
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to come at the residence of the deceased for cooking
food and the appellant was seen by Suman who was
coming down from the room of the deceased on
27.08.2013, but she was not produced by the
prosecution rather she was examined as DW-2 and she
clearly stated that she did not see the appellant on
27.08.2013 at the house of the deceased.
29. It is the story of the prosecution that the
appellant confessed his guilt and on his pointing out a
knife (used in the crime) besides two mobiles phones
related to the deceased were recovered.
30. The recovery memo Ex. Ka 4 is on record. As
per the recovery memo, at the time of recovery, Altaaf
and Mehtab (public witnesses) were also present.
31. The prosecution produced Altaaf as PW-2,
but he did not support the recovery, while other
witness Mehtab was not produced by the Prosecution.
32. It is very relevant to note that it is the case
of prosecution that the appellant was arrested and he
disclosed before the police that he committed the crime
and he can got recovered the knife (used in the crime)
as also the mobile phones related to the deceased.
Thus, on appellant's pointing out, the above items
(knife and two mobiles) were recovered, but the I. O.
did not record his statement as envisaged u/s 26 of the
Evidence Act. Since there is no disclosure statement
was recorded u/s 26 of the Evidence Act, accordingly,
the recovery becomes doubtful as per Section 27 of the
Evidence Act. Although, the recovery can be looked in
the light of the conduct of the accused as per Section 8
of the Evidence Act if such conduct influences or is
8
influenced by any fact in issue or relevant fact, but,
there is no evidence to show that the blood stains
found on the knife, were related to the deceased or
that the mobile phones were also related to the
deceased.
33. As regard to the appeal against conviction is
concerned, the Hon'ble Apex Court in Padam Singh vs.
State of U. P. (2000) 1 SCC 621 while dealing with the
duty of the Appellate Court, has expressed that: -
"2.... It is the duty of an appellant court to
look into the evidence adduced in the case and
arrive at an independent conclusion as to whether
the said evidence can be relied upon or not and
even if it can be relied upon, then whether the
prosecution can be said to have been proved
beyond reasonable doubt on the said evidence.
The credibility of a witness has to be adjudged by
the appellate court in drawing inference from
proved and admitted facts. It must be
remembered that the appellate court, like the trial
court, has to be satisfied affirmatively that the
prosecution case is substantially true and the guilt
of the accused has been proved beyond all
reasonable doubt as the presumption of innocence
with which the accused starts, continues right
through until he is held guilty by the final Court of
Appeal and that presumption is neither
strengthened by an acquittal nor weakened by a
conviction in the trial court."
34. Similarly, in Rama v. State of Rajasthan,
reported in (2002) 4 SCC 571, the Hon'ble Apex Court
has also cast duty upon the appellate court in the
following terms:-
"4.........It is well settled that in a criminal
appeal, a duty is enjoined upon the appellate
court to reappraise the evidence itself and it
cannot proceed to dispose of the appeal upon
appraisal of evidence by the trial court alone
especially when the appeal has been already
admitted and placed for final hearing. Upholding
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such a procedure would amount to negation of
valuable right of appeal of an accused, which
cannot be permitted under law."
35. Furthermore, in Majjal vs. State of Haryana
(2013) 6 SCC 798, a three Judges' Bench of the
Hon'ble Apex Court has ruled thus: -
"7. It was necessary for the High Court to
consider whether the trial court's assessment of
the evidence and its opinion that the appellant
must be convicted deserve to be confirmed. This
exercise is necessary because the personal liberty
of an accused is curtailed because of the
conviction. The High Court must state its reasons
why it is accepting the evidence on record. The
High Court's concurrence with the trial court's
view would be acceptable only if it is supported by
reasons. In such appeals it is a court of first
appeal. Reasons cannot be cryptic. By this, we do
not mean that the High Court is expected to write
an unduly long treatise. The judgment may be
short but must reflect proper application of mind
to vital evidence and important submissions which
go to the root of the matter."
36. At this juncture, it is relevant to take note
of a judgment rendered by the Hon'ble Supreme Court
in the case of "Sharad Birdhichand Sarda vs State
of Maharashtra" reported in (1984) 4 SCC Page
116 , wherein the Apex Court has laid down five
golden principles of appreciation of evidence in a case
based only on circumstantial evidence. They are as
follows:-
a. "the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
The circumstances concerned "must" or "should"
and not "may be" established;
b. the facts so established should be consistent only
with the hypothesis of the guilt of the accused,
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that is to say, they should not be explainable on
any other hypothesis except that the accused is
guilty;
c. the circumstances should be of a conclusive
nature and tendency;
d. they should exclude every possible hypothesis
except the one to be proved; and
e. 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."
37. The most important aspect of circumstantial
evidence is that the circumstance from which the
conclusion of guilt is to be drawn, should be fully
established. The Supreme Court has further held that
the circumstance concerned 'must or should' and 'not'
'may be' established. In other words, the
prosecution, in a case based entirely on circumstantial
evidence, must establish the circumstance
conclusively.
38. In the case based upon circumstantial
evidence, if the chain of circumstances which is
required to be established by the prosecution is not
established, the accused cannot be convicted in such a
situation.
39. In so far as those two mobile phones related
to the deceased are concerned, those mobile phones
were not identified by any family member of the
deceased. Even those mobiles were not equipped with
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the SIM card nor their International Mobile Equipment
Identity (IMEI) was proved. There is no iota of
evidence on record to suggest that those two mobile
phones were related to the deceased.
40. Although, as per the FSL report, blood was
found on the knife but it has not been proved by the
prosecution by adducing any cogent or reliable
evidence that the blood found on the knife was related
to the deceased.
41. As per the statements of PW-3 Charu and
PW-4 Khusha, at an earlier point of time, the accused
entered the house of the deceased and demanded
money. When the deceased refused for the same,
appellant-accused extended a threat to seem him in
future, but those witnesses (PW3 and PW4) did not
disclose this fact to the informant PW-1 Geetika, who is
also another daughter of deceased. The servants, who
were very close to the deceased, did not say anything.
Even the elder brother of the deceased, who used to
live in the same vicinity, did not say anything about the
motive of the deceased nor did he inform PW-1 Geetika
about the aforesaid demand and the threat extended
by the appellant.
42. From the above discussion, the following
points are emerged:-
a. The appellant is not named in the FIR.
b. There is no motive alleged in the FIR against
the appellant.
c. There is no eye-witness of the scene.
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d. As per the prosecution story, the female cook
Suman saw the appellant on 27.08.2013 while
coming down from the house of the deceased,
but when she appeared as a defence witness,
she clearly resiled from the above facts.
e. No disclosure statement was recorded by the
I.O before the recovery of knife and mobiles.
f. No SIM cards were found in the mobiles related
to the deceased.
g. The mobile phones were not identified by any
of the family members of the deceased.
h. There is no evidence which may show that the
two mobiles were related to the deceased.
i. The recovery alleged to have been made at the
instance of the appellant is also doubtful in view
of Section 27 of the Evidence Act.
j. Even no mens rea could be attributed by the
prosecution against the appellant for
commission of alleged crime.
k. The prosecution could not lead any link
evidence to connect the appellant with the
alleged crime.
43. We have fully gone through the entire
evidence led by the prosecution before the trial Court
and have re-assessed the same. On doing so, we find
that the prosecution could not produce any clinching
evidence against the appellant. The trial Court
proceeded to hold the appellant guilty simply on the
basis of recovery of weapon of murder and mobile
phones, however, from the discussion made by us
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hereinabove, we find that the learned trial Judge has
fell into error while recording the finding of conviction.
44. The law is well settled that each and every
incriminating circumstance must be clearly established
by reliable and clinching evidence and the
circumstances so proved must form a chain of events
from which the only irresistible conclusion about the
guilt of the accused can be safely drawn and no other
hypothesis against the guilt is possible. In a case
depending largely upon circumstantial evidence, there
is always a danger that conjecture or suspicion may
take the place of legal proof. The Court, in mindful of
caution by the settled principles of law that in a given
case like this, where the prosecution rests on the
circumstantial evidence, the prosecution must place
and prove all the necessary circumstances, which
would constitute a complete chain without a snap and
pointing to the hypothesis that except the accused, no
one had committed the offence, which in the present
case, the prosecution has failed to prove.
45. Thus, from the above discussion, we have no
hesitation to hold that the prosecution has utterly failed
to prove its case against the appellant beyond
reasonable doubt. The circumstances pointed out by
the prosecution, too, do not complete the chain of
circumstances pointing out towards the guilt of the
appellant exclusively. In that view of the matter, we
are of the firm opinion that there is a reasonable doubt
in the case of the prosecution and it is not proper or
just to uphold the conviction of the appellant on the
basis of aforesaid evidence.
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46. In the result, the appeal is allowed. The
conviction of the appellant as recorded by the Trial
Court under Section 302 IPC is hereby set aside. The
sentence awarded to the appellant for that offence is
also set aside. The appellant is acquitted of the
offence. The appellant is in jail, accordingly, he be
released forthwith, if not required in any another case.
47. Let a copy of this judgment and order along
with the LCR be transmitted to the Court concerned
forthwith.
48. The Registrar Judicial is also directed to
send a copy of this judgment to the Jail Authority for
forthwith compliance.
_______________________
SANJAYA KUMAR MISHRA, A.C.J.
_ ______________
RAMESH CHANDRA KHULBE, J.
R.Dang 15