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Judgment reserved on: 24.06.2025

Judgment delivered on: 09.07.2025

HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No.19 of 2007

Dhani Ram and Another …..Appellants

Vs.

State of Uttarakhand …..Respondent

With

Criminal Appeal No.20 of 2007

Babloo …..Appellant

Vs.

State of Uttarakhand …..Respondent

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Presence:

Mr. Milind Raj, learned counsel for the appellants in

CRLA/19/2007.

Ms. Monika Pant, learned counsel for appellant in

CRLA/20/2007, appeared through video

conferencing.

Mr. S.S. Chauhan, learned D.A.G., Mr. Bhaskar

Chandra Joshi, learned A.G.A. with Mr. Vikas Uniyal,

learned Brief Holder for the State of Uttarakhand.

Hon’ble Pankaj Purohit, J. (Per)

Since both these criminal appeals are arising

out of same judgment and order and common question of

law and facts are involved, hence, they are taken up

together and are being decided by this common

judgment. For the sake of brevity, the facts of CRLA

No.19 of 2007 are taken into consideration.

2. These criminal appeals are preferred by the

appellants assailing the judgment and order dated

11.01.2007/ 12.01.2007 passed by learned Sessions

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Judge, District Tehri Garhwal, in Sessions Trial No.21 of

2005 State Vs. Dhani Ram @ Dugri and Ors., whereby, the

said Court has convicted the appellants for the offence

punishable under Section 304 IPC read with 34 IPC and

sentenced them seven years’ rigorous imprisonment each

with fine of Rs.3,000/- each, with default stipulation, six

months’ additional rigorous imprisonment each.

3. The prosecution story in brief is that one-Mr.

Bhagwati Prasad on 22.04.2005, came to Revenue P.S.

Navakot, Tehsil-Jakhnidhar, District Tehri Garhwal and

informed that the ex- village Pradhan had informed him

that a person’s dead body was lying at newly constructed

Navakot motor road band. On hearing this, the

concerned Patwari reached the alleged spot and prepared

the Inspection Report, Site Map and sent the dead body

for postmortem. Thereafter, on the same day at around

06:00 PM, one Mr. Sunil S/o Amar Dev, lodged a report

that his father’s dead body was found at Navakot road

band and he had suspicion that someone had killed his

father and thrown his body down the road. The chick FIR

was registered against unknown persons under Section

302 IPC on the same day.

4. On the basis of the above facts, the Naib

Tehsildar appointed Supervisor Kanungo as the

Investigating Officer, who after investigation, has filed the

charge-sheet against the appellants/accused persons,

who were last seen with the deceased, under Section 304

IPC, in the Court of learned Judicial Magistrate, who in

turn committed the case to learned Sessions Judge, Tehri

Garhwal, for trial.

5. Thereafter, on 17.10.2005, learned Sessions

Judge, Tehri Garhwal, framed charges under Section 304

IPC read with 34 IPC. The charges were read over and

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explained to the appellants/accused persons, who

pleaded not guilty and claimed to be tried.

6. Prosecution has examined as many as ten

witnesses i.e. PW-1 (Pankaj Raturi), PW-2 (Rajendra

Singh), PW-3 (Sunil Datt), PW-4 (Debendra D att), PW-5

(Smt. Harshpati), PW-6 (Ramesh Chandra), PW -7

(Manohar Lal), PW-8 (Dr. Anand Shukla), PW-9 (Patwari

Vishal Singh) and PW-10 (Revenue Inspector Gambhir

Singh) to substantiate and prove the charges against the

appellants.

7. Thereafter, the statements of appellants /

accused persons were recorded under Section 313 of the

Cr.P.C., in which, they stated that they were innocent

and had falsely been implicated and claimed to be tried.

Appellants/accused persons-Dhani Ram @ Dugri,

Jagdamba Prasad and Babloo accepted that the deceased

was in their truck on 21.04.2005, but, denied any sort of

enmity with the deceased and stated that he deboarded

their truck near the band and they have no knowledge

about what transpired thereafter. The learned Trial

Court, at the end of trial, has recorded the findings of the

appellants’ conviction. Hence, these Appeals.

8. During trial, PW -1 Pankaj Raturi deposed that

the deceased Amar Dev was his father and on the fateful

day, when he didn’t reach home, he went to search for

him towards Jakhni Dhar but he was not there, then he

went towards Kumhar Dhar and thereafter came to his

village when his father was not found at home, he went

to search for him again; on his way, he saw

accused/appellant Babloo, but due to fear, he didn’t ask

anything to him, he was roaming half naked; then he

went to Jakhni Dhar, next day, Rajendra Singh (PW-2)

told him that his father was accompanying with him and

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the appellants/accused persons in their truck No.5910

and he got down in Jakhni Dhar and the rest persons

were gone to Navakot . He further stated that on

22.04.2005 at about 08:00 am , Bhagwati Prasad

informed him that his father is lying dead near the band,

when he reached there; he found his father’s body in

naked condition. He also stated that the FIR was lodged

by his brother and denied false implication of accused

persons. In his cross-examination, he deposed that the

FIR was lodged by his brother and he did not see anyone

killing his father. He also stated in his cross- examination

that his father was not used to drink alcohol frequently,

he only used to drink at home.

9. PW-2 Rajendra Singh on oath deposed that he

was accompanying the deceased Amar Dev along with the

appellants/accused persons in the same truck , which

was driven by Dhani Ram -accused person. He further

deposed that he deboarded the truck at Navakot Motor

Marg Band at about 08:30 PM and all the other four

persons continued the journey , at that time the

deceased-Amar Dev was alive. He also informed that he

got to know about the death of the deceased on the next

day. On cross-examination, he accepted that the

appellants, deceased and he was drunk country made

liquor. He also accepted that the deceased was heavily

drunk. He accepted that he deboarded the truck near the

band but denied that the deceased deboarded the truck

in Navakot band along with him. He further stated that

he had no knowledge about the fact that what transpired

after he deboarded the truck.

10. PW-3 Sunil Datt in his examination-in-chief

deposed that on 21.04.2005, when his father did not

reach home on his usual time, he along with his brother

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Pankaj Raturi (PW-1) went to search for him, when they

saw a man running half naked, they did not asked him

anything due to fear. Thereafter, on 22.04.2005 at about

09:00 AM, they got to know from villagers that some

person was lying, when they reached there, their father’s

dead body was lying near the motor band in a half naked

condition he was wearing shirt but nothing on lower

body. He further deposed that when they reached there, a

crowd had already gathered over there. In his cross -

examination, he denied lodging of false report.

11. PW-4 Debendra Datt was a formal witness,

who recognized his signatures on the Panchnama as Ex-

Ka-2.

12. PW-5 Smt. Harshpati, who was the wife of

deceased Amar Dev reiterated the prosecution story and

supported the version of PW-1 and PW-3, she further

deposed that few days before her husband’s death, her

husband had informed her that he had a dispute with

the appellant-Dhani Ram @ Dugri about bringing the

clean sand. In her cross-examination, she stated that her

husband did not use to drink at home and she wasn’t

aware that whether he used to drink outside or not. She

also denied falsely implicating the appellants/accused

persons.

13. PW-6 Ramesh Chandra on oath deposed that

he has a photo studio near the alleged place of incidence.

He also deposed that he took photographs of the dead

body and surrounding area, after he was asked by

Patwari to do so. He proved material Exhibits 1 to 7.

14. PW-7 Manohar Lal was a formal witness and

verified his signature on the Panchnama .

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15. PW-8 Dr. Anand Shukla was the doctor, who

conducted the examination of dead body and on

examination, he found the following wounds o n the

person of deceased:

1. There was a peeled bruise mark on the right side of the

head of the deceased about 4cm X 3cm.

2. The entire face was swollen.

3. There was 3 Cm X 2.5 cm laceration mark below the

mouth and nose and nose of the deceased was swollen

and broken.

4. Bruise mark on waist measuring 10 Cm X 5 cm.

5. Abraded mark on left knee measuring 5 Cm X 6 cm.

6. There were many peeling bruised mark on the upper part

of right leg.

7. There was 2 Cm X 2.5 cm bruised mark on left elbow.

In the internal examination he found that on the

right side of skull, there was blood clot under the skin and the fracture was visible. This fracture was below the

Wound No.1 before the death of the deceased. There was

fracture on the nasal bones, brain was congested and

right side of the brain there was blood clot found. He

opined that the time of death was within 24 to 36 hours

and the death was caused due to head injury and also

stated that the deceased was intoxicated at the time of

death. In his cross-examination, he admitted that the

injuries and the death could be possible even due to

accidental fall but it is rare. He also admitted that if a

person fall due to intoxication, then also the said injuries

could be possible.

16. PW-9 Patwari Vishal Singh and PW -10

Revenue Inspector, were the revenue police authorities,

who investigated the case and supported the prosecution

story during trial. They proved charge -sheet, Site Plan.

17. Learned counsel for the appellants vehemently

argued that the entire case of prosecution is based on

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circumstantial evidence and the prosecution has

miserably failed to prove any link of chain and the

conviction recorded by the learned Trial Cour t is

untenable. He also submitted that there is no direct

evidence against the appellants and prosecution has

failed to bring any cogent and reliable evidence. He

further argued that the fact, that no blood marks were

found at nearby places and were only found at the place

where dead body was found, supports the theory that

death was caused due to accidental fall as a result of

high intoxication.

18. Learned counsel for the appellants submits

that investigation was not conduced in a proper manner

and in the absence of any evidence regarding prior

concert or meeting of minds, Section 34 IPC could not

have been attracted.

19. Per contra, learned State Counsel supported

the case of prosecution and submits that the learned

Trial Court, after careful examination of the evidences,

rightly came to the conclusion that the evidence of ‘last

seen together’ has been duly proved, which is sufficient

to convict the appellants.

20. Having heard the learned counsel for the

parties and on perusal of the Trial Court Record, this

Court is of the considered opinion that the accused

persons/appellants enjoys presumption of innocence and

the burden to prove the guilt of the accused persons/

appellants beyond reasonable doubt rests on the

prosecution. Here in the case in hand, even considering

the death to be homicidal and not accidental, there is

nothing more that the ‘last seen theory’ to implicate the

accused persons/appellants and it is a settled

proposition of law that ‘last seen theory’ is only a piece of

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circumstantial evidence and it can only be used as a

cementing material to establish the link of chain of

events, but cannot be sole basis of conviction , as

although it is a substantive piece of evidence, but doesn’t

have substantial evidentiary value. Hon’ble Apex Court in

Kanhaiya Lal Vs. State of Rajasthan (2014) 4 SCC

715 has held that evidence on ‘last seen together’ is a

weak piece of evidence and conviction only on the basis

of ‘last seen together’ without there being any other

corroborative evidence against the accus ed, is not

sufficient to convict the accused for an offence

under Section 302 IPC. The following passage from the

judgment in paras 12 and 15 can be profitably referred:

“12. The circumstance of last seen together does not by itself

and necessarily lead to the inference that it was the accused

who committed the crime. There must be something more

establishing connectivity between the accused and the crime.

Mere non-explanation on the part of the appellant, in our

considered opinion, by itself cannot lead to proof of guilt

against the appellant.

15. The theory of last seen—the appellant having gone with

the deceased in the manner noticed hereinbefore, is the

singular piece of circumstantial evidence available against

him. The conviction of the appellant cannot be maintained

merely on suspicion, however strong it may be, or on his

conduct. These facts assume further importance on account

of absence of proof of motive particularly when it is proved

that there was cordial relationship between the accused and

the deceased for a long time. The fact situation bears great

similarity to that in Madho Singh v. State of Rajasthan, (2010)

15 SCC 588.”

21. Similarly, the Hon’ble Apex Court in

Rambraksh @ Jalim vs. State of Chhatisgarh (2016)

12 SCC 251 has reiterated above legal position in the

following words in paras 12 and 13:

“12. It is trite law that a conviction cannot be recorded

against the accused merely on the ground that the

accused was last seen with the deceased. In other words,

a conviction cannot be based on the only circumstance of

last seen together. Normally, last seen theory comes into

play where the time gap, between the point of time when

the accused and the deceased were seen last alive and

when the deceased is found dead, is so small that

possibility of any person other than the accused being

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the perpetrator of the crime becomes impossible. To

record a conviction, the last seen together itself would

not be sufficient and the prosecution has to complete the

chain of circumstances to bring home the guilt of the

accused.

13. In a similar fact situation this Court in Krishnan v.

State of T.N. (2014) 12 SCC 279 held as follows: (SCC pp.

284-85, paras 21- 24)

“21. The conviction cannot be based only on

circumstance of last seen together with the

deceased. In Arjun Marik v. State of Bihar (1994)

Supp (2) SCC 372 this Court held as follows: (SCC p.

385, para 31)

‘31. Thus the evidence that the appellant had

gone to Sitaram in the evening of 19-7-1985 and

had stayed in the night at the house of deceased

Sitaram is very shaky and inconclusive. Even if

it is accepted that they were there it would at

best amount to be the evidence of the appellants

having been seen last together with the

deceased. But it is settled law that the only

circumstance of last seen will not complete the

chain of circumstances to record the finding

that it is consistent only with the hypothesis of

the guilt of the accused and, therefore, no

conviction on that basis alone can be founded.’

22. This Court in Bodhraj v. State of J&K, (2002) 8

SCC 45 held that: (SCC p. 63, para 31)

‘31. The last seen theory comes into play where

the time gap between the point of time when the

accused and the deceased were last seen alive

and when the deceased is found dead is so small

that possibility of any person other than the

accused being the author of the crime becomes

impossible.’

It will be hazardous to come to a conclusion of guilt in

cases where there is no other positive evidence to

conclude that the accused and the deceased were last

seen together.

23. There is unexplained delay of six days in lodging

the FIR. As per prosecution story the deceased

Manikandan was last seen on 4 -4-2004 at

Vadakkumelur Village during Panguni Uthiram

Festival at Mariyamman Temple. The body of the

deceased was taken from the borewell by the fire

service personnel after more than seven days. There is

no other positive material on record to show that the

deceased was last seen together with the accused and

in the intervening period of seven days there was

nobody in contact with the deceased.

24. In Jaswant Gir v. State of Punjab, (2005) 12 SCC

438, this Court held that in the absence of any other

links in the chain of circumstantial evidence, the

appellant cannot be convicted solely on the basis of

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“last seen together” even if version of the prosecution

witness in this regard is believed.”

22. On perusal of the Trial Court Records, it

transpires that the conviction is based on presumption

and surmised and also on ‘last seen theory’ without any

other corroborating evidence thereby, even not satisfying

the conditions necessary to implicate the accused

persons/appellants by relying on circumstantial

evidence, as it is well settled law that in a case based on

circumstantial evidence, the prosecution is obliged to

prove each circumstance, taken cumulatively to form a

chain so complete that there is no escape from the

conclusion that within all human probabilities, crime was

committed by the accused and none else. Further, the

facts so proved should unerringly point towards the guilt

of the accused. Hon’ble Apex Court in a celebrated

judgment in Sharad Birdhichand Sarda vs. State of

Maharashtra (1984) 4 SCC 116 has laid down the

golden rules in the cases basing circumstantial evidence

which is to be proved by the prosecution.

(i). That chain of evidence is complete;

(ii). Circumstances relied upon by prosecution should be

conclusive in nature;

(iii). Fact established should be consistent only with the

hypothesis of the guilt of accused;

(iv). Circumstances relied upon should only be consistent

with the guilt of the accused;

(v). Circumstances relied upon should exclude every

possible hypothesis except the one to be proved.

23. In this view of matter, it is safe to conclude

that the prosecution failed to prove its case beyond all

reasonable doubt against the appellants.

24. The upshot of the aforesaid discussions is that

these appeals deserve to be allowed. Accordingly, both

the appeals are allowed and the impugned judgment and

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order dated 11.01.2007/12.01.2007 passed by learned

Sessions Judge, District Tehri Garhwal, in Sessions Trial

No.21 of 2005 State Vs. Dhani Ram @ Dugri and Ors., is

hereby set-aside. The appellants are on bail. They need

not to surrender. Their bail-bonds are cancelled and

sureties are discharged.

25. Let the T.C.R. be immediately sent back to the

learned Trial Court for consignment.

(Pankaj Purohit, J.)

09. 07.2025

PN