Sianand vs State Of Uttarakhand
2021 Latest Caselaw 4743 UK

                                 Reserved Judgment
         IN THE HIGH COURT OF UTTARAKHAND
                     AT NAINITAL
    THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
                                AND
           THE HON'BLE SRI JUSTICE NARAYAN SINGH DHANIK

            Criminal Jail Appeal No.45 of 2018

Sianand                                                .....Appellant



                                Versus

State of Uttarakhand                               .....Respondent

With

Criminal Jail Appeal No.2 of 2019

Lukka @ Lokesh @ Luvkush .....Appellant

Versus

State of Uttarakhand .....Respondent

Ms. Manisha Bhandari, learned Amicus Curiae for the appellants. Mr. J.S. Virk, learned Deputy Advocate General along with Mr. R.K. Joshi, learned Brief Holder for the State of Uttarakhand.

Judgment Reserved on: 26.10.2021 Judgment Delivered on: 25.11.2021

JUDGMENT: (per Hon'ble Shri Justice Narayan Singh Dhanik)

These appeals are directed against the judgment and order dated 28/29.09.2018 rendered by the learned Sessions Judge,

Haridwar, in Sessions Trial No. 60/2013 convicting the accused appellants for the offences under Sections 323/34, 504, 506, 364, 302, 201 IPC. Each one of the appellants has been sentenced to undergo one year's imprisonment for the offence under section 323/34 IPC, 6 months' imprisonment for the offence under section 504 IPC, 6 months' imprisonment for the offence under section 506 IPC, 5 years' imprisonment and a fine of Rs. 15,000 each for the offence under section 364 IPC, imprisonment for life and to pay a fine of Rs. 25,000 each for the offence under section 302 IPC and two years' imprisonment and to pay a fine of Rs. 5000 each for the offence under section 302 IPC.

2. Being aggrieved by and dissatisfied with the judgment aforesaid, the appellant, Sianand (hereinafter referred to as 'A1') preferred Criminal Jail Appeal No. 45/2018 and, the convict appellant, Lukka alias Lokesh alias Luvkush (hereinafter referred to as 'A2') preferred the Criminal Jail Appeal Number 2/2019. Since both these appeals are directed against the same judgment and order, these appeals are being decided by this common judgment and order.

3. The factual background of the case is that, at 5:20 PM on 23.09.2012, Bati (PW3)

lodged a report stating that she along with her husband A1 was living in a rented house in village Sarai. Her husband was an alcoholic person and he used to assault her more often than not. In the intervening night of 19/20.09.2012 at about 1 AM, A2 came at her house and he gave some money to A1 and asked him to let his wife (complainant) sleep with him. A1 asked the complainant to sleep with A2, but the complainant refused to do so. Then A1 abused and assaulted her. The complainant was rescued by Mulki and Rani, who were neighbours of the complainant. Mulki told that he will complain about the duo to the landlord. Then A1 and A2 snatched Simran, a two years' old daughter of the complainant and A1, and left the house. When A1 returned after 2-3 hours, the complainant asked him about Simran. On this, A1 again assaulted the complainant and thereafter he fell asleep. Being frightened, the complainant did not tell about this to anyone. On the next day, A1 forcefully ousted the complainant from the house and sent her to her parental house in village Teliwala. Complainant did not lodge the report as she was ill. On 22.09.2012, she received information that the dead body of her daughter was lying in a field situated at some distance from her house. Then

she returned and identified her daughter. The complainant alleged that she was sure that A1 and A2 killed Simran (hereinafter referred to as 'deceased') in the intervening night of 19/20.09.2012 and hid her dead body in a sugarcane field.

4. Police investigated the matter and thereafter submitted the chargesheet against the accused applicants. Thereafter the accused appellants were convicted by the trial court as has been stated hereinabove.

5. The prosecution examined in all following 13 witnesses:

PW        Name
PW1       Smt. Rani (neighbour of complainant)
PW2       Akshay Kumar (witness of inquest

proceedings and recovery of the dead body) PW3 Smt. Bati (complainant) PW4 Harpal (landlord) PW5 Constable Suryapratap Singh (he along with PW9 made the recovery of dead body; this witness also took the dead body to the hospital for the postmortem examination) PW6 Mulkiraj (neighbour of the complainant) PW7 Dr. S.N. Khan (who conducted the postmortem of the dead body) PW8 Pradeep Kumar (brother of the complainant) PW9 S.I. Dharmendra Rathi (recovered the dead body and prepared the inquest report)

PW10 Dhanpal Singh (witness of inquest proceedings and recovery of the dead body) PW11 S.I. Dinesh Singh Panwar (made recovery of undergarment of the deceased) PW12 S.I. Karam Singh Chauhan (prepared the Chick FIR and made necessary entries in GD) PW13 ASI Ganesh Singh Kutiyal (Investigating Officer)

6. We have gone through the entire material on record with the assistance of learned Amicus curiae for the appellants as well as the learned Deputy Advocate General for the State and heard their rival contentions.

7. PW1 Smt. Rani has stated in her testimony that she was also a tenant in the same house in which the complainant and her husband were living. On the date of incident, the accused appellants came there and they quarrelled with Smt. Bati on some issue. Thereafter A1 handed over his two years' old daughter to A2 and then both left the place along with the child. On the third day thereafter, the dead body of the child was found; the complainant also identified the dead body of Simran. But in the cross- examination, this witness has stated that quarrel did not take place between the accused appellants and the complainant in her presence, nor did the accused appellants take along the

child in her presence. This witness has further stated that Mulik (PW6) was not present at the spot at the time of quarrel between the accused appellants and the complainant. This witness has further stated that A1 and A2 used to come together very often. Lastly, this witness has stated that on the date of incident, she was not present in the house and that she was in Gonda.

8. PW3 Smt. Bati in her examination-in- chief has stated the same story as has been narrated by her in the FIR.

9. PW4 Harpal has stated that he did not see the incident, nor did he see the accused persons at the spot. He learnt about the incident from PW3, when he came to her room at about 12:30 AM on the date of incident.

10. PW6 Mulkiraj in his examination-in- chief has stated that at about 11:12 PM in the intervening night of 19/20.09.2012, A1 and A2 came to the house and they had their meal. Thereafter A2 insisted to sleep in the house of A1. On this, this witness told A2 that if he will not go to his own house then he will inform the landlord. But A2 could not be persuaded. Thereafter this witness left to inform the landlord and after some time, he returned along with landlord and then

came to know from PW3 that A1 and A2 took along the deceased. After sometime, A1 came back to the house, but the deceased was not with him, nor did he tell anything about the deceased despite being asked. 3-4 days thereafter, the dead body of the child was found in the sugarcane field. In the cross-examination, this witness has stated that many people of the village had searched for the deceased. A1 and A2 were also searching.

11. PW7 is Dr. S.N. Khan who conducted the postmortem examination on the dead body of the deceased and prepared the postmortem report. According to him, the deceased died about 4-6 days prior to conducting the postmortem examination and she died as a result of shock and hemorrhage due to antemortem injuries.

12. Testimony of rest of the witnesses are formal in nature. Hence, we are not discussing the same.

13. Learned Amicus Curiae for the appellants argued that there are a lot of contradictions in the testimony of prosecution witnesses and there are also serious flaws in the investigation made by the police. Learned Amicus Curiae further contended that there is no

independent witness to prove that A1 and A2 left the spot along with the deceased at the alleged date and time of incident. Learned Amicus Curiae also argued that there is a huge delay in lodging the FIR which could be lodged only after the recovery of the dead body of the deceased and this fact also dents the prosecution story. Learned Amicus Curiae argued that in a case of circumstantial evidence, it is settled law that conviction cannot be made unless it is established on the basis of the chain of circumstantial evidence that there is no other probability other than the accused being the perpetrator of the alleged offence.

14. On the other hand, learned Deputy Advocate General for the State contended that chain of circumstantial evidence is complete. Accused persons were last seen taking along the deceased; thereafter, her dead body was found. A2 has also confessed to the crime and recovery was made on his pointing out. Learned Deputy Advocate General submitted that on the basis of the evidence on record, the only conclusive inference which can be drawn is that the accused persons are guilty of the offences; the trial court has rightly convicted and sentenced the accused appellants.

15. Having heard the rival submissions and on appreciation of the evidence, we are of the opinion that chain of circumstantial evidence is completely against A1. However, we are of the firm opinion that no clear case of conviction has been made out against A2. It has come in the evidence that on the date and time of incident a quarrel took place between the complainant and A1. A1 was last seen along with the deceased. He did not give any explanation as to how the deceased went missing. Even otherwise, the complainant, her husband A1 and deceased were staying together under the same roof. The burden was on the A1 to explain how the death has occurred and therefore, Section 106 of the Evidence Act will apply. The failure of the A1 to discharge the burden on him under Section 106 of the Evidence Act is very crucial as the case is based on circumstantial evidence. Hence, on the evidence on record, we are of the opinion that chain of circumstances was established by the prosecution against A1.

16. As regards the conviction of A2, the complainant has stated that A2 came to her house on the alleged date and time of incident and a quarrel took place on his insisting to sleep with the complainant and thereafter both A1 and A2 took along the child and left the spot and on

the third day, the dead body of the deceased was found. However, no one else did see A2. Even one assumes for the sake of argument for a moment that A2 went at the house of A1 at the relevant date and time, yet, it does not establish the complete guilt of A2. But at best or at the most, it is a part of a series of events. The guilt established from the circumstances must be proved beyond reasonable doubt and the circumstances should be conclusive in nature and tendency. In a criminal case, the prosecution has to prove the alleged Actus Reus, the act, and the Mens Rea, the guilty mind or the intention, which the prosecution has failed to prove qua A2 in the case in hand.

17. Further, PW13 the Investigating Officer of the case has stated in his deposition that he had interrogated A2 and recorded his statement and he had admitted the guilt, but the Investigating officer did not make any prayer for recording his confessional statement. It is also the case of the prosecution that recovery was made on the pointing out of A2, but PW3 has stated in her cross-examination that at the time of recovery, A2 was not present at the spot.

18. In Krishnan v. State (2008) 15 SCC 430, the Hon'ble Apex Court after considering a large

number of its earlier judgments observed as follows:

"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;

(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)"

19. In view of the above and for the reasons stated above, Criminal Jail Appeal No. 2 of 2019 succeeds and Criminal Jail Appeal No. 45 of 2018 fails. Consequently, conviction of appellant Lukka alias Lokesh alias Luvkush is quashed and sentence imposed on him is set aside. He is in jail. His bail bond is cancelled and sureties are discharged. Lukka alias Lokesh alias Luvkush shall be released forthwith, if not wanted in connection with any other case. Conviction and sentence imposed on the accused appellant Sianand is affirmed. He is in jail. He shall serve out the sentence as imposed by the trial court.

20. Let a copy of this judgment and order, along with LCR, be sent to the trial court to ensure its compliance.

_______ RAGHVENDRA SINGH CHAUHAN, C.J.

_____________ N.S. DHANIK, J.

RV