IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

THE HON’BLE THE CHIEF JUSTICE SR I RAGHVENDRA SINGH CHAUHAN

AND

THE HON’BLE SRI JUSTICE MANOJ KUMAR TIWARI

CRIMINAL APPEAL No.341 OF 2012

12

th

January, 2021

Between:

Devendra Singh Rawat.

…Appellant (In Jail)

and

State of Uttarakhand.

…Respondent

Counsel for the appellant : Mrs. Shruti Joshi

Counsel for the respondent : Mr. J.S. Virk, learned

Deputy Advocate

General.

The Court made the following:

JUDGMENT :

(per Hon’ble The Chief Justice Sri Raghvendra Singh Chauhan)

The appellant, Devendra Singh Rawat, has

challenged the legality of the judgment dated

26.11.2012, passed by the learned District and Sessions

Judge, Tehri Garhwal, in Sessions Trial No. 18 of 2011,

whereby the learned Trial Court has convicted the

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appellant for the offence under Section 302 IPC, and

sentenced him to life imprisonment, and has imposed a

fine of Rs. 5,000/-, and further directed him to undergo a

sentence of two years of rigorous imprisonment in default

thereof.

2. Briefly, the facts of the case are that on

24.11.2010, one Bijendra Singh Rawat, (P.W. 1)

submitted a written complaint at Chambha Police Station

wherein he stated that on 23.11.2010, there was a

marriage at the house of one Sri Hukum Singh Rawat

(P.W. 2). His brother, namely Uttam Singh, had attended

the said marriage. On the next day, i.e. on 24.11.2010,

the dead body of his brother, Uttam Singh, was

discovered in a field. Some unknown persons have killed

his brother. The complainant was not present in the said

marriage.

3. On the basis of th e said report, the police

chalked out a formal FIR, namely FIR No. 24 of 2010 (Ex.

Ka. 1) for the offence under Section 302 IPC. Upon

receiving the said report, the Police visited the site and

recovered the dead-body. Subsequently, during the

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course of investigation, on 27.11.2010, the accused was

arrested by the Police and was put up for trial.

4. In order to prove its case, the prosecution

examined nineteen witnesse s, and submitted thirty

documents. After going through the evidence, by

judgment dated 26.11.2012, the learned Trial Court

convicted the appellant for offence under Section 302

IPC. Hence, the present appeal before this Court by the

appellant.

5. Mrs. Shruti Joshi, th e learned counsel for the

appellant, has raised the following contentions before this

Court:-

Firstly, the entire case is based on

circumstantial evidence. However, the prosecution has

failed to establish the complete chain of circumstances,

which would unerringly point towards the guilt of the

accused. Therefore, the learned Trial Court has erred in

convicting the appellant.

Secondly, the learned Trial Court has relied on

five circumstances in order to convict the appellant : (i)

the presence of the appellant at the marriage of Hukum

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Singh Rawat’s son; (ii) the alleged recovery of the flap

(cap) of the pocket of the shirt worn by the accused from

the scene of the crime; (iii) the recovery of the shirt worn

by the accused at his inst ance; (iv) the forensic

examination report (Ex. Ka. 20) of the shirt establish that

the flap (cap) of the pocket of the shirt belongs to the

same shirt which was recovered from the appellant; and

(v) the recovery of a blood stained stone, which was

discovered at the instance of the appellant.

However, an in-depth analysis of the evidence would

reveal that even these pi eces of evidence are not

sufficient for convicting the appellant.

Thirdly, according to th e prosecution, the flap

(cap) of the pocket of the shirt was discovered near the

dead-body. However, the Panchnama (Ex. Ka. 2) drawn

at the time of the discovery of the dead-body, does not

indicate the recovery of any flap (cap) of the pocket of

the shirt from the scene of the crime. Even Guman Singh

Negi (P.W. 18), the Investigating Officer, clearly admits

that the recovery of the flap (cap) of the pocket of the

shirt is not indicated in the Panchnama (Ex. Ka. 2). If,

indeed, the flap (cap) of the pocket of the shirt were

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discovered at the scene of the crime, the Police would not

have failed in recording an important clue in the

Panchnama. After all, the flap (cap) of the pocket of the

shirt was a vital clue for linking the accused to the alleged

murder. Moreover, the recovery memo of the flap (cap)

of the pocket of the shirt does not indicate the presence

of any blood. Therefore, the possibility cannot be ruled

out that the alleged recovery of the flap (cap) of the

pocket of the shirt at the scene of the crime is a planted

evidence by the Police.

Fourthly, the mere presence of the accused and

the deceased at Hukum Singh Rawat’s son’s marriage

does not lead to a logical inference that it is the

appellant, who has killed the deceased.

Fifthly, the existence of motive is an important

link in a case based on circumstantial evidence. Despite

the fact that Bijendra Singh Rawat (P.W. 1.) and Girvir

Singh (P.W. 4.) claimed th at the accused and the

deceased Uttam Singh were seen at the marriage, both

they and the other witnesses such as Hukum Singh Rawat

(P.W. 2.), Dhanbir Singh Rawat (P.W. 3.), Pradeep (P.W.

5.) and Mangsiru (P.W. 6.) clearly state that “there was

6

no altercation, or any quarrel which had occurred

between the appellant and th e deceased”. Thus, the

prosecution has failed to establish any motive which

would have propelled the appellant to get rid of Uttam

Singh, the deceased. In the absence of any motive,

there is no rhyme or reason why the appellant would kill

the deceased. Hence, a majo r gap exists in the story

presented by the prosecution.

Lastly, even the recovery of a blood stained

stone at the instance of the appellant does not

necessarily connects the appellant to the alleged offence.

For, according to the FSL report, (Ex. Ka. 21), the stone

merely had human blood. But the FSL report (EX. Ka.

21) has failed to establish that the said human blood

belonged to the deceased. Therefore, the possibility that

human blood may belong to an y other person cannot be

ruled out. Since, there are gaping holes in the chain of

circumstances presented by the prosecution, the

prosecution has failed to establish its case against the

appellant. Hence, the conviction of the appellant should

be set-aside by this Court.

7

6. On the other hand, Mr. J.S. Virk, the learned

Deputy Advocate General for the State of Uttarakhand,

has raised the following counter-contentions :-

Firstly, according to Bijendra Singh Rawat

(P.W. 1.) and Dhanbir Singh Rawat (P.W. 3.), both the

accused Devendra Singh Rawat, and the deceased, Uttam

Singh, were present at the marriage of Hukum Singh’s

son.

Secondly, on the next day, the dead-body of

Uttam Singh was discovered. According to Bijendra

Singh Rawat (P.W. 1.), one Ratan Singh Rawat (P.W.

10.), the Gram Pradhan, had informed him that the dead-

body of his brother, Uttam Singh, was lying in a field.

Thirdly, Dr. Sanjay Kansal (P.W. 16.) had

performed the autopsy of Uttam Singh. He discovered as

many as ten injuries on his body. The cause of death

was “shock due to haemorrhage and head injuries”.

Thus, the death was a homicidal one.

Fourthly, according to Surendra Singh

Bhandari, S.I., (P.W. 19.), he had arrested the appellant

on 27.11.2010. Upon a statement made by the

8

appellant, a blood stained stone was recovered by

Surendra Singh Bhandari, S.I. (P.W. 19.). According to

the FSL report (Ex. Ka. 21), there was presence of human

blood on the said stone.

Fifthly, according to Guman Singh Negi, S.I.

(P.W. 18.), the Police had recovered a piece of cloth,

which was the flap (cap) of the pocket of the shirt (one

feet away from the dead-bod y), and a button was also

attached with it.

Sixthly, according to the FSL report (Ex. Ka.

28), the flap (cap) of the pocket of the shirt matched with

the shirt, which was recovered at the instance of the

appellant. Since the flap (cap) of the pocket of the shirt

was recovered from the scene of the crime, the presence

of the flap (cap) clearly proves that the appellant is the

offender who committed the murder of Uttam Singh.

Therefore, the prosecution has established a complete

chain of circumstances, which unerringly point towards

the guilt of the accused. Therefore, the learned Deputy

Advocate General has supported the impugned judgment.

9

7. Heard the learned counsel for the parties,

perused the impugned judg ment, and examined the

record submitted before the Court.

8. In the case of Anwar Ali and another v. The

State of Himachal Pradesh [(2020) 10 SCC 166] , the

Hon'ble Supreme Court has reiterated the principles with

regard to the assessment of evidence in a case based on

circumstantial evidence. The principles are as under:-

5.4 It is also required to be noted and it is not in

dispute that this is a case of circumstantial evidence. As

held by this Court in catena of decisions that in case of a

circumstantial evidence, 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

none else and the circumstantial evidence in order to

sustain conviction must be complete and incapable of

explanation of any other hypothesis than that of the guilt

of the accused and such evid ence should not only be

consistent with the guilt of the accused but should be

inconsistent with his innocence. In the case of Babu

(supra), it is observed and held in paragraphs 22 to 24 as

under:

“22. In Krishnan v. State (2008) 15 SCC 430, this

Court after considering a large number of its

earlier judgments observed as follows: (SCC p.

435, para 15)

“15. ... This Court in a series of decisions has

consistently held that when a case rests upon

circumstantial evidence, such evidence must

satisfy the following tests:

(i) the circumstances from which an inference of

guilt is sought to be drawn, must be cogently and

firmly established;

10

(ii) those circumstances should be of definite

tendency unerringly pointing towards guilt of the

accused;

(iii) 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 none else; and

(iv) the circumstantial evidence in order to sustain

conviction must be complete and incapable of

explanation of any other hypothesis than that of

the guilt of the accused and such evidence should

not only be consistent with the guilt of the accused

but should be inconsistent with his innocence. (See

Gambhir v. State of Maharashtra (1982) 2 SCC

351)”

23. In Sharad Birdhichan d Sarda v. State of

Maharashtra (1984) 4 SCC 116 while dealing with

circumstantial evidence, it has been held that the

onus was on the prosecution to prove that the

chain is complete and the infirmity or lacuna in

prosecution cannot be cured by false defence or

plea. The conditions precedent before conviction

could be based on circumstantial evidence, must

be fully established. They are: (SCC p. 185, para

153)

(i) 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;

(ii) 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;

(iii) the circumstances should be of a conclusive

nature and tendency;

(iv) they should exclude every possible hypothesis

except the one to be proved; and

(v) 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.

11

A similar view has been reiterated by this

Court in State of U.P. v. Satish (2005) 3 SCC 114

and Pawan v. State of Uttaranchal (2009) 15 SCC

259.

24. In Subramaniam v. State of T.N (2009) 14

SCC 415, while considering the case of dowry

death, this Court observed that the fact of living

together is a strong circumstance but that by alone

in absence of any evidence of violence on the

deceased cannot be held to be conclusive proof,

and there must be some evidence to arrive at a

conclusion that the husband and husband alone

was responsible therefor. The evidence produced

by the prosecution should not be of such a nature

that may make the conviction of the appellant

unsustainable. (See Ramesh Bhai v. State of

Rajasthan (2009) 12 SCC 603).”

(emphasis supplied)

5.5 Even in the case of G. Parshwanath (supra), this

Court has in paragraphs 23 and 24 observed as under:

“23. In cases where evidence is of a circumstantial

nature, the circumstances from which the

conclusion of guilt is to be drawn should, in the

first instance, be fully established. Each fact

sought to be relied upon must be proved

individually. However, in applying this principle a

distinction must be made between facts called

primary or basic on the one hand and inference of

facts to be drawn from them on the other. In

regard to proof of primary facts, the court has to

judge the evidence and decide whether that

evidence proves a particular fact and if that fact is

proved, the question whether that fact leads to an

inference of guilt of the accused person should be

considered. In dealing with this aspect of the

problem, the doctrine of benefit of doubt applies.

Although there should not be any missing links in

the case, yet it is not essential that each of the

links must appear on the surface of the evidence

adduced and some of these links may have to be

inferred from the proved facts. In drawing these

inferences, the court must have regard to the

common course of natural events and to human

conduct and their relations to the facts of the

particular case. The court thereafter has to

consider the effect of proved facts.

24. In deciding the sufficiency of the

circumstantial evidence for the purpose of

conviction, the court has to consider the total

12

cumulative effect of all the proved facts, each one

of which reinforces the conclusion of guilt and if

the combined effect of all these facts taken

together is conclusive in establishing the guilt of

the accused, the conviction would be justified even

though it may be that one or more of these facts

by itself or themselves is/are not decisive. The

facts established should be consistent only with

the hypothesis of the guilt of the accused and

should exclude every hypothesis except the one

sought to be proved. But this does not mean that

before the prosecution can succeed in a case

resting upon circumstantial evidence alone, it must

exclude each and every hypothesis suggested by

the accused, howsoever, extravagant and fanciful

it might be. 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 sh ow that in all human

probability the act must have been done by the

accused, where various links in chain are in

themselves complete, then the false plea or false

defence may be called into aid only to lend

assurance to the court.”

9. According to the afores aid principles, it is not

only the duty of the prosecution to produce cogent and

convincing evidence in the form of a complete chain of

circumstances, which would unerringly point towards the

guilt of the accused, but it is also the duty of the

prosecution to eliminate every possibility which may point

towards the innocence of th e accused. If there are

breaks in the chain, or gaping holes in the story of the

prosecution, ipso facto the benefit of doubt has to be

given to the accused. Moreover, the burden of proof,

which lies on the shoulders of the prosecution, has to be

discharged with the presen tation of both oral and

13

documentary evidence. The evidence should be cogent

and convincing to convince the Court that the accused is

the only person who could be the author of the crime,

and that there is no possibility that the crime could have

been committed by any other person.

10. Moreover, there is a vast distance between

“may be true” and “must be true” – a distance the

prosecution is required to cover. [Shivaji Sahebrao

Bobade v. State of Maharashtra (AIR 1973 SC 2622)].

It is also a settled principle of criminal jurisprudence that,

“while a man may lie, circumstances do not”.

11. These settled principles of law necessarily have

to be kept in mind while assessing the evidence produced

by the prosecution before the Trial Court.

12. Bijendra Singh Rawat (P.W. 1.), the brother of

the deceased, clearly states that there was no animosity

between the accused and the deceased. In fact, they

were known to each other, and both he and his brother,

Uttam Singh, used to ofte n visit the house of the

accused.

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13. Similarly, Dhanbir Sing h Rawat (P.W. 3.) claims

that the accused and the deceased were present at his

marriage, and no untoward incident occurred between the

accused and the deceased at his marriage.

14. Likewise, Pradeep (P .W. 5.) informs the Court

that he and his father Mangsiru (P.W. 6.) are musicians,

who had gone to play music at Hukum Singh’s son’s

wedding. At the wedding, both Uttam Singh, the

deceased, and Devendra Singh Rawat, the accused, were

present. He further claims that there was no quarrel

between the two. A perusal of the testimony, especially

the testimony of Bijendra Singh Rawat (P.W. 1.), clearly

proves that the prosecution has failed to establish any

motive for the appellant to kill the deceased. Needless to

say, motive is an important link in a case based on

circumstantial evidence. However, in the present case

motive is conspicuously missing.

15. Both the prosecutio n and the learned Trial

Court have relied on the recovery of the flap (cap) of the

pocket of the shirt worn by the accused. According to

Guman Singh Negi, S.I., (P.W . 18.), the Investigating

Officer, the said flap (cap) of the pocket of the shirt was

15

discovered one feet away from the dead-body. However,

the testimony of this witness is contradicted both by

documentary and oral evidence. For, according to the

Inquest Report (Ex. Ka. 2) and the Panchnama contained

with the Inquest Report nothing was recovered from the

scene of the crime. Moreov er, even according to the

testimony of Bijendra Singh Rawat (P.W. 1.), who was

available at the scene of the crime when the police

reached, nothing was recovered from the scene of the

crime, except Rs. 3650/- were recovered from the pocket

of the deceased. Both in his examination-in-chief and his

cross-examination, he clearly states that, “except for the

said amount of money, nothing was recovered from the

scene of the crime”. He further states that he is one of

the witnesses of the Panchnama (Ex. Ka. 2).

16. Girvir Singh (P.W. 4.) was examined by the

prosecution in order to prove the recovery of the alleged

flap (cap) of the pocket of the shirt worn by the accused.

Even this witness clearly states that the recovery memos

of flap (cap) of the shirt, and the alleged recovered blood

stained stone, were drawn up at the police station. He

further claims that both the flap (cap) of the pocket of

the shirt, and the alleged recovered blood stained stone,

16

were shown to them at the Police Station. Since this

witness has been declared as hostile, obviously this

witness does not support the case of the prosecution.

But interestingly both th ese witnesses, and the

complainant Bijendra Singh Rawat (P.W. 1.), claim that

no flap (cap) of the pocket of the shirt was recovered at

the scene of the crime, when the witnesses were present

at the place where the dead-body was recovered.

17. Of course, the prosec ution has also relied on

the recovery memo of the pocket of the shirt (Ex. Ka. 6).

According to the said memo, the flap (cap) of the pocket

of the shirt was recovered at the scene of the crime.

However, the said document is belied by the testimony of

the complainant Bijendra Singh Rawat (P.W. 1.) itself.

Moreover, according to the said recovery memo (Ex. Ka.

6) there are no blood stains on the flap (cap) of the

pocket of the shirt. The fact that there are no blood

stains existing on the flap (cap) of the pocket of the shirt

worn by the appellant is also supported by the FSL report

(Ex. Ka. 20). For, according to the FSL report, no blood

was found on the said flap (cap). Therefore, a holistic

appreciation of evidence clearly establishes :-

17

Firstly, that the flap (cap) of the pocket of the

shirt was not discovered at the scene of the crime, as

testified by the complainant Bijendra Singh Rawat (P.W.

1.) himself.

Secondly, according to Girvir Singh (P.W. 4.),

the said flap (cap) of the pocket of the shirt was shown at

the Police Station, and was not recovered at the scene of

the crime, as pleaded by the prosecution.

Thirdly, the possibility that the flap (cap) of the

pocket of the shirt is a planted evidence cannot be ruled

out.

18. The prosecution has also relied on the recovery

of a blood stained stone, which was recovered on the

basis of the statement of the appellant. However,

according to the FSL Report (Ex. Ka. 21), only “human

blood” was found on the said stone. It is not sufficient

that human blood is discovered on the alleged weapon for

committing the murder. In fact, it is the duty of the

prosecution to further establish that the blood so

discovered belongs only to the deceased, and not to the

accused. The mere presence of human blood is neither

here, nor there. Therefore, the recovery of the blood

18

stained stone, even at the instance of the accused, does

not necessarily connect the accused to the alleged

offence.

19. Since gaping holes exist in the prosecution

case, it has failed to link all the circumstances presented

by it to form a complete chain of circumstances, which

unerringly point towards the guilt of the appellant.

Therefore, this Court is of the opinion that the benefit of

doubt necessarily has to be given to the accused. Thus,

the conviction is unsustainable.

20. For the reasons stated above, the Criminal

Appeal is allowed. The conviction and sentence recorded

against the appellant, Sri Devendra Singh Rawat, S/o. Sri

Mangal Singh, for the offence punishable under Section

302 IPC in the judgment dated 26.11.2012, passed by

the learned District and Sessions Judge, Tehri Garhwal in

Sessions Trial No. 18 of 2011, are set aside. The fine

amount, if any, paid by the appellant shall be refunded to

him. Consequently, Sri Devendra Singh Rawat, S/o. Sri

Mangal Singh shall be set at liberty forthwith, if he is not

required in any other criminal case.

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21. As a sequel thereto, miscellaneous applications,

if any, stand disposed of as infructuous.

_____________________________

RAGHVENDRA SINGH CHAUHAN, C.J.

_____________________

MANOJ KUMAR TIWARI, J.

Dt: 12

th

January, 2021

Rahul