IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

THE HON’BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN

AND

THE HON’BLE SRI JUSTICE ALOK KUMAR VERMA

22

nd

FEBRUARY , 2021

CRIMINAL APPEAL NO.199 of 2015

Between:

Sachin Rana. …Appellant

and

State of Uttarakhand. …Respondent

Counsel for the

appellant.

: Mr. M.S. Pal, learned Senior

Advocate assisted by Mr.

Sachin, learned counsel.

Counsel for the State

of Uttarakhand.

: Mr. J.S. Virk, learned Deputy

Advocate General assisted by

Mr. Rakesh Kumar Joshi,

learned Brief Holder for the

State.

The Court made the following:

JUDGMENT : (per Hon’ble Sri Justice Alok Kumar Verma )

The present appeal has been filed by the

appellant against the judgment dated

01.06.2015/03.06.2015, passed by the learned Sessions

Judge, Udham Singh Nagar, in Sessions Trial No.367 of

2

2013, “State vs. Sachin Rana”, by which, the appellant

has been convicted for the offence punishable under

Section 302 of the Indian Penal Code (for short, “IPC”)

and has been sentenced to undergo imprisonment for

life along with a fine of Rs. 50 ,000/- in default of

payment of fine, the defaulter convict is directed to

undergo further simple imprisonment for a period of two

years. The appellant has been further convicted and

sentenced to undergo rigorous imprisonment for a period

of five years along with a fine of Rs. 20,000/- in the

offence punishable under Section 201 IPC in default of

which, the convict is directed to undergo further simple

imprisonment for a period of one year. Both the

sentences are directed to run concurrently.

2. Briefly stated the prosecution story as it

emerges from re-appreciation of the evidence on record

is that on 24.08.2013 at 8: 34 hrs, on receipt of an

information from a mobile phone of Govind Rai (PW 10)

regarding death of Smt. Purnima, wife of Sachin Rana,

the present appellant, by hanging, Sub-Inspector Marry

Peeter (PW 6) along with constable Kanchan Chaudhary

reached the house of Virendra Manjhi (PW 5) and found

that the dead body of Smt. Purnima was lying on the

floor of a room. At that time, the appellant was tenant in

the house of Virendra Manjhi (PW 5). Sub-Inspector

Marry Peeter (PW 6) prepared an inquest report (Ext. Ka

3

2), took photographs (Ext. 3 to 6) and a sari (Ext. 1) of

the deceased and sent the dead body of the deceased to

the hospital for post-mortem examination.

3. The post-mortem examination of the dead

body of the deceased was conducted by Dr. Yatendra

Singh (PW 9) at 4:30 p.m. on 24.08.2013.

4. An FIR (Ext. Ka 12) was registered by Head

Constable Rajendra Prasad Tamta (PW 8) against the

present appellant on the same day i.e. 24.08.2013 at

20:40 p.m. for the offence under Sections 302, 201 and

498 A of IPC.

5. The said FIR was lodged by the informant

Sushant Rai (PW 1), brother of the deceased, through

his written information (Ext. Ka 1) that his sister, Smt.

Purnima was married with the appellant in the year

2003. After marriage, the appellant used to harass her

for demand of dowry. He used to beat her. He

(appellant) and his family members were requested not

to harass her, but, the appellant’s behavior became

more and more cruel towards his sister. The appellant

used to taunt her that she has four daughters , and used

to say that she did not have any son. Thus, he would

marry again and kill her (deceased). She was also

assaulted a week before her death. The informant’s

brother- in-law, Amal Mandal (PW 2), had requested the

4

appellant and his family members. On 23.0 8.2013 at

10:30 night, Purnima sent an information through Indra

Rai (PW 4), brother- in-law of Amal Mandal (PW 2), that

her husband was beating her a lot, and that he will kill

her. On 24.08.2013 at around 6:30 a.m., Amal Mandal

(PW 2) got a call that Purn ima had died, then he

(informant) was informed by Amal Mandal. After

receiving the information, he reached the spot along

with Amal Mandal (PW 2) and others. He saw that a

noose of the sari was wrapped around the neck of his

sister and that sari was tied to a skylight, whose height

would be 5 feet. Her sister was sitting by the door and

her mouth, face and back were injured.

6. The matter was investigated by Vikram

Rathore (PW 7). The appellant was arrested on

26.08.2013. The Investigating Officer prepared a site

plan of the place of occurrence (Ext. Ka 7). After

completion of the investigation, the charge-sheet (Ext.

Ka 10) was filed by Vikram Rathore (PW 7).

7. The case was committed to the Court of

Session.

8. The charges under Section 498 A, Section 302

and Section 201 of IPC were framed. The appellant

pleaded not guilty and claimed to be tried. The learned

5

trial court recorded the statements of ten prosecution

witnesses.

9. Statement of the appellant was recorded

under Section 313 of the Code of Criminal Procedure,

1973. He denied all the incriminating evidence against

him. The appellant has taken a plea of alibi. He pleaded

that he was away from the scene of the crime. He

pleaded that he went to Lalkuwan. When he reached

home in the morning, he came to know about the death

of the deceased. He further pleaded that he did not

know who had killed his wife. He also stated that he has

no enmity with the prosecution’s witnesses. The

appellant has suggested Virendra Manjhi (PW 5) in his

cross- examination that the deceased was upset and

stressed because she had four daughters but no son.

The appellant has suggested the prosecution witnesses

that the deceased had committed suicide.

10. The appellant has not adduced any defence

evidence.

11. The learned trial court appraised the evidence

adduced before it and held that the prosecution has

successfully proved its case against the appellant under

Section 302 and Section 201 of IPC.

6

12. Aggrieved by the judgment and order of

conviction and sentence awarded by the learned trial

court, the appellant appealed to this Court.

13. Mr. M.S. Pal, the learned Senior Advocate

appearing for the appellant, would submit that there was

no eye-witness of the alleged offence; the appellant was

not present at the scene of the crime; the prosecution

witnesses Amal Mandal (PW 2), Smt. Maheswari (PW 3),

Indrajeet Rai (PW 4) and Virendra Manjhi (PW 5) did not

support the prosecution story; they have been declared

hostile by the prosecution; there are certain

contradictions in the evidence of the prosecution

witnesses; the chain of the circumstances of the incident

is broken, and not so complete as to infer the

involvement of the appellant in the alleged offence; the

deceased had committed suicide; the case of the

prosecution is highly improbable; the marriage of the

appellant with the deceased was solemnized in the year,

2003 and since then neither the deceased, nor her

family members had lodged any complaint whatsoever

against the appellant; the prosecution has failed to

assign any motive for the alleged commission of offence

by the appellant.

14. As per contra, Mr. J.S. Virk, the learned

Deputy Advocate General for the State , argued in

7

support of the impugned judgment and submitted that

the prosecution has proved its case b eyond all

reasonable doubt.

15. We have carefully assessed the evidence,

adduced by the prosecution.

16. This case rests on circumstantial evidence.

For, no one had seen the assault by the appellant on the

deceased.

17. It is a well established law that in cases of the

circumstantial evidence, all circumstances relied upon by

the prosecution must be established by cogent and

reliable evidence and all the proved circumstances must

provide a complete chain. The chain of evidence should

be 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.

18. In Sharad Birdhi Chand Sarda vs. State of

Maharashtra, (1984) 4 SC C 116, the Hon’ble

Supreme Court held that when a case rests on

circumstantial evidence, such evidence must satisfy

these tests:-

8

(i) The circumstances from which the conclusion of

guilt is to be drawn, should be fully

established.

(ii) The facts so established should be consisted

only with the hypothesis of the guilt of the accused,

that it 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.

(v) There must be a chain of evidence to show

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

probabilities, the act must have been done by the

accused.

19. On the basis of the above well -settled

principles, we proceed to examine whether the appellant

can be held to be guilty.

20. PW 9 Dr. Yatendra Singh Brijwal conducted

the post-mortem of the dead body of the deceased on

24.08.2013. He proved the post-mortem report (Ext. Ka

9

14). He stated that at the time of the post -mortem

examination, he found the following anti-mortem injuries

on the body of the deceased:-

(1) A ligature mark of 4 cm. was found on the

front of the neck, the upper end of which was present

above the thyroid cartilage and the lower end was

present below the thyroid cartilage. Hyoid bone and

thyroid cartilage bone were fractured.

(ii) A contusion of 5x3 cm. was present over right

forehead just near right eye.

(iii) Multiple contusions (2 cm. x 2 cm., 2 cm. x 1

cm., 1 cm. x 1 cm., 1 cm. x 2 cm., 1.5 cm. x 2 cm.)

were present over right side of face.

21. According to Dr. Yatendra Singh Brijwal (PW

9), the cause of death of the deceased was asphyxia due

to anti-mortem strangulation. He also stated that the

death of the deceased was possible after 10:30 p.m. on

23.08.2013, if somebody would have pressed the neck

of the deceased. It may be pointed out, that there was

no dispute that the said injuries were present on the

body of the deceased, and the testimony of the doctor

on this account is not under challenge.

10

22. Dr. Yatendra Singh Brijwal (PW 9) has rejected

the appellant’s suggestion in his cross- examination that

the deceased had committed suicide by hanging.

According to the Dr. Yatendra Singh Brijwal (PW 9), such

injuries are not possible on suicide, as were found on the

body of the deceased.

23. Mr. M.S. Pal, the learned Senior Advocate

appearing for the appellant, argued that the prosecution

witnesses, namely, Amal Mandal (PW 2), Smt.

Maheswari (PW 3), Indrajeet Rai (PW 4) and Virendra

Manjhi (PW5) did not support the prosecution case and

they have been declared hostile by the prosecution,

therefore, the chain of circumstantial evidence had

failed. The said submission of the learned counsel for the

appellant is not acceptable. It is well settled that merely

because a witness is declared hostile, his/her evidence

cannot be rejected in toto. The testimony of such a

witness is to be assessed for whatever value it is. If any

part of the evidence of a hostile witness is found

truthful, the Court can rely on such part of his/her

evidence. In Rajendra vs. State of U.P., (2009) 13

SCC 48, the Hon’ble Supreme Court held that merely

because a witness, deviates from his statement, his

evidence cannot be held to be totally unreliable. In

Govindappa vs. State of Karnataka, (2010) 6 SCC

533, the Hon’ble Supreme Court has held that

11

deposition of a hostile witness can be relied upon at

least up to the extent he supported the case of the

prosecution.

24. This fact is not disputed that at the time of the

incident, the appellant was residing with the deceased.

25. The prosecution case is that the deceased was

married with the appellant in the year, 2003. The

appellant used to harass her for demand of dowry. He

used to beat her. He used to taunt the deceased that she

has four daughters, and used to say that she did not

have any son, so he would marry again and kill her. She

was assaulted a week before her death. On 23.08.2013

at 10:30 p.m., the deceased sent an information through

Indrajeet Rai (PW 4), brother-in-law of Amal Mandal (PW

2), that her husband was beating her a lot, and that he

will kill her. On 24.08.2013 at around 6:30 a.m., Amal

Mandal (PW 2) got a call that the deceased had died .

Then, he informed the informant, Sushant Rai (PW 1),

brother of the deceased. After receiving the information

of the death of the deceased, the informant Sushant Rai

(PW 1) along with Amal Mandal (PW 2) reached the spot.

The informant saw that a noose of the sari was wrapped

around the neck of the deceased and that sari was tied

to a skylight, whose height would be 5 feet. At that time,

12

the deceased was sit ting by the door and her mouth,

face and back were injured.

26. The informant Sushant Rai (PW 1), brother of

the deceased, deposed that the appellant used to harass

the deceased for demand of dowry. He used to beat her.

He used to taunt her that she has four daughters, and

used to say that she did not have any son. So he would

marry again and kill her. He stated that when the

appellant demanded money, he gave money to him

several times. He stated that the deceased was

assaulted a week before her death, then he along with

Amal Mandal (PW 2) went to the house of the deceased

and requested him not to harass his sister. He further

deposed that on 23.08.2013, his brother Indrajeet went

to the deceased’s house. The deceased told him (PW 4

Indrajeet) that her husband was beating her a lot and he

will kill her.

27. The examination-in-chief of the prosecution

witness Amal Mandal (P.W.2) was recorded on

10.07.2014. In his examination-in-chief, his supported

the prosecution case. After completion of the

examination-in-chief, an adjournment was moved on

behalf of the appellant. On the next day i.e. 28.07.2014,

he (Amal Mandal) became hostile. In his examination-in-

chief, he clearly stated that the deceased was harassed

13

by the appellant for demand of dowry. The appellan t

used to beat her. His brother- in-law, Sushant Rai (PW

1), gave money to the appellant several times. He

further stated in his examination-in-chief that the

deceased was assaulted a week before her death, then,

he along with Sushant Rai (PW 1) went to the house of

the deceased and had requested the appellant not to

harass her.

28. Smt. Maheswari (PW 3) is the wife of Amal

Mandal (PW 2). She did not support the prosecution

case. Though the prosecution witness, Indrajeet Rai (PW

4), did not support the prosecution case, but he clearly

stated in his examination-in-chief that he went to the

house of the deceased on 23.08.2013. Amal Mandal

(P.W.2) has stated in his examination-in-chief that his

brother- in-law, Indrajeet (PW 4), went to the house of

the deceased on 23.08.2013. At that time, his sister told

him (Indrajeet Rai) that her husband was beating her

and he will kill her.

29. According to the prosecution witness Virendra

Manjhi (P.W.5), the landlord of the appellant, he had

never seen any quarrel between the appellant and the

deceased. He stated that on 24.08.2013 at 6 a.m., the

appellant told him that the deceased had committed

suicide by hanging.

14

30. Sushant Rai (P.W.1) was consistent in his

testimony. His testimony is fully corroborated by the

hostile witness, Amal Mandal (PW 2). There is no such

circumstance on the record that why the statement of

the witness Sushant Rai (PW 1) should not be accepted.

The statement of this witness is found natural, reliable,

true and correct version of events.

31. The prosecution case is corroborated by the

evidence of Dr. Yatendra Singh Brijwal (PW 9). He has

clearly rejected the appellant’s suggestion that the

deceased had committed suicide by hanging. According

to him, such injuries are not possible in suicide, the type

of injuries were found on the body of the deceased.

Turning hostile by one set of witness by itself cannot be

permitted to destroy the other set of dependable

prosecution evidence which is otherwise sufficient

enough to hold the accused guilty for the offence alleged

against him. Hence, there is no reason to doubt the

evidence adduced by the prosecution, which conclusively

links the appellant with the offence.

32. The prosecution case is further corroborated

by the false plea of “ alibi”, which was taken by the

appellant.

15

33. According to the appellant, he was away from

the scene of the crime. He went to Lalkuwan. When he

reached home in the morning, he came to know about

the death of his wife. But, after availing sufficient

opportunity to adduce defence evidence, he did not

adduce any evidence in support of his plea of alibi.

According to him, he did not know who had committed

murder of his wife.

34. Plea of alibi is only a rule of evidence

recognized in Section 11 of the Indian Evidence Act,

1872 that facts which are inconsistent with the fact in

issue are relevant. The Latin word “alibi” means

“elsewhere”. The word “alibi” is used when an accused

takes recourse to a defence that when the occurrence

took place he was so far away from the place of

occurrence that it is extremely improbable that he would

have participated in the offence. Though, it is a basic

rule that in a criminal case, the burden is on the

prosecution to prove that the accused was present at the

scene and has participated in the crime. But, once the

prosecution succeeds in discharging its burden, the

burden shifts on the accused to show that he was

somewhere else other than the place of occurrence at

the time of the incident. Hence, it is incumbent on the

accused to prove the plea of alibi with absolute certainty

16

so as to exclude the possibility of his presence at the

place of occurrence.

35. In Dudh Nath Pandey vs. State of Uttar

Pradesh, (1981) 2 SCC 16 6, the Hon’ble Supreme

Court held that the plea of alibi postulates the physical

impossibility of the presence of the accused at the scene

of the offence by reason of his presence at another

place. The plea can, therefore, succeed only if it is

shown that the accused was so far away at the relevant

time that he could not b e present at the place wh ere the

crime was committed.

36. In State of Maharashtra vs. Narsingrao

Pimple, (1984) SCC (1) 446 , the Hon’ble Supreme

Court held that it is well settled that the plea of alibi

must be proved with absolute certainty so as to

completely exclude the possibility of the presence of the

person concerned at the place of occurrence.

37. In Dhananjoy Chatterjee vs. State of West

Bengal, (1994) 2 SCC 520 , the Hon’ble Supreme

Court has held that the plea of alibi must be proved by

cogent and satisfactory evidence completely excluding

the possibility of the presence of the accused at the

scene of occurrence at the relevant time.

17

38. In Binay Kumar Singh vs. State of Bihar,

AIR 1997 SC 322, the Hon’ble Supreme Court has held

that strict proof is required for establishing the plea of

alibi.

39. In Babudas vs. State of Madhya Pradesh,

2003 Cri.L.J. 2536 (SC), the Hon’ble Supreme Court

held that a false plea of alibi can be a link in the chain of

circumstances.

40. The appellant, after availing sufficient

opportunity to produce evidence regarding his plea of

alibi, but, he did not produce any evidence. In these

circumstances, the only reasonable inference that can be

drawn that evidence regarding the plea of alibi , which

could be and is not produced would, if produced, be

unfavourable to him.

41. The argument of Mr. M.S. Pal, the learned

Senior Advocate for the appellant, is that in absence of

motive on the part of the appellant to cause death,

benefit of reasonable doubt should be giv en to the

appellant.

42. In Bhimapa Chandappa Hosamani vs.

State of Karnataka, (2006) 11 SCC 323 , the Hon’ble

Supreme Court observed that it is well settled that in

order to bring home the guilt of an accused , it is not

18

necessary for the prosecution to prove the motive. The

existence of motive is only one of the circumstances to

be kept in mind while appreciating the evidence adduced

by the prosecution. If the evidence of the witnesses

appears to be truthful and convincing, failure to prove

the motive is not fatal to the case of the prosecution.

The law on this aspect is well-settled.

43. In G. Parashwanath vs. State of

Karnataka, 2011 (1) CCSC 157 (SC) , the Hon’ble

Supreme Court has held that in a case based on

circumstantial evidence where proved circu mstances

complete the chain of evidence, it cannot be said that in

absence of motive, the other proved circumstances are

of no consequence. The absence of motive, however,

puts the Court on its guard to scrutinize the

circumstances more carefully to ensure that suspicion

and conjecture do not take place of legal proof. There is

no absolute legal proposition of law that in the absence

of any motive an accused cannot be convicted under

Section 302 of IPC. Effect of absence of motive would

depend on the facts of each case.

44. Proof beyond reasonable doubt is a guideline,

not a fetish and guilty man cannot get away with crime

because truth suffers some infirmity when projected

through human processes. Any possibility of bias or

19

predetermined conclusion has to be excluded. A fact is

said to be proved when, after considering the matter,

the Court either believes it to exist or considers its

existence so probable that a prudent man ought under

the circumstances of a particular case, to act upon the

supposition that it exists.

45. In Mahendra Pratap Singh Vs. State of

Uttar Pradesh, (2009)11 SCC 334 , the Hon’ble

Supreme Court referred to the earlier judgment in Inder

Singh and another Vs. State (Delhi

Administration), (1978)4 SCC 161 , wherein it has

been held, “Credibility of testimony, oral and

circumstantial, depends considerably on a judicial

evaluation of the totality, not isolated scrutiny. While it

is necessary that proof beyond reasonable doubt should

be adduced in all criminal cases, it is not necessary that

it should be perfect.”

46. In State Represented by Inspector of

Police Vs. Saravanan and another, (2008)17 SCC

587, the Hon’ble Supreme Court held that it has been

said time and again by this Court that while appreciating

the evidence of a witness, minor discrepancies on trivial

matters without affecting the core of the prosecution

case, ought not to prompt the court to reject evidence in

its entirety. Further, on the general tenor of the

20

evidence given by the witness, the trial court upon

appreciation of evidence forms an opinion about the

credibility thereof, in the normal circumstances the

appellate court would not be justified to review it once

again without justifiable reasons. It is the totality of the

situation, which has to be taken note of. Difference in

some minor detail, which does not otherwise affect the

core of the prosecution case, even if present, that itself

would not prompt the court to reject the evidence on

minor variations and discrepancies.

47. It is, therefore, the duty of the court to

scrutinize the evidence carefully and, in terms of the

felicitous metaphor, separate the grain from the chaff.

But, it cannot obviously disbelieve the substratum of the

prosecution case or the material parts of the evidence

and reconstruct a story of its own out of the rest.

48. In Krishna Mochi Vs. State of Bihar,

(2002)6 SCC 81, the Hon’ble Supreme Court ruled that

the Court while appreciating the evidence should not

lose sight of these realities of life and cannot afford to

take an unrealistic approach by sitting in an ivory tower.

Some discrepancy is bound to be there in each and

every case which should not weigh with the court so long

it does not materially affect the prosecution case. In

case, discrepancies pointed out are in the re alm of

21

pebbles, the court should tread upon it, but if the same

are boulders, the court should not make an attempt to

jump over the same. These days when crime is looming

large and humanity is suffering and the society is so

much affected thereby, duties and responsibilities of the

courts have become much more. Now the maxim “let

hundred guilty persons be acquitted, but not a single

innocent be convicted” is, in practice, changing the world

over and courts have been compelled to accept that

society suffers by wrong convictions and it equa lly

suffers by wrong acquittals.

49. The chain of circumstances proved on the

record against the appellant is as under:-

(i) The dead body of the deceased was found in

the house, where the appellant was residing with

his wife (deceased) at the time of the incident.

(ii) The appellant used to beat her. He used to

taunt her that she has four daughters but no son.

(iii) The cause of the death of the deceased was

asphyxia due to strangulation.

(iv) Dr. Yatendra Singh Brijwal (PW 9) conducted

the post-mortem examination of the dead body of

the deceased and according to him, the death of

the deceased was possible after 10:30 p.m. on

22

23.08.2013, if someone would have pressed the

neck of the deceased.

(v) Dr. Yatendra Singh Brijwal (PW 9) has ruled out

any possibility that the death of the deceased could

have been due to suicide.

(vi) The appellant has taken a false plea of alibi.

50. The aforesaid chain of circumstances against

the appellant is of conclusive nature. There is a complete

chain of circumstances which show that in all human

probabilities, the offence has been committed by the

appellant. Therefore, having re-appreciated the entire

evidence on record, we concur with the learned trial

court. It is not a fit case where impugned judgment

requires any interference.

51. For the reasons, as discussed above, this

appeal is liable to be dismissed, and the same is

dismissed accordingly.

_______________________________

RAGHVENDRA SINGH CHAUHAN, C.J.

_________________

ALOK KUMAR VERMA, J.

Dt: 22

nd

February, 2021

Neha