2005) vs Dhiman And Rajneesh"
2022 Latest Caselaw 3823 UK

 IN THE HIGH COURT OF UTTARAKHAND
            AT NAINITAL

      HON'BLE SRI JUSTICE SANJAYA KUMAR MISHRA
      HON'BLE SRI JUSTICE ALOK KUMAR VERMA

               29TH November, 2022
       Government Appeal No.31 of 2015

Between:

State of Uttarakhand                 .......... Appellant

and

Yogesh S/o Mahendra                   ......Respondent

Counsel for the Appellant/ : Mr. J.S. Virk, State. Deputy Advocate General.

Counsel for the Respondent : Mr. Piyush Garg, Amicus Curiae.

With Government Appeal No.32 of 2015

Between:

State of Uttarakhand .......... Appellant

and

1. Neeraj Dhiman S/o Dharampal

2. Rajneesh S/o Madan ......Respondents

Counsel for the Appellant/ : Mr. J.S. Virk, State. Deputy Advocate General.

Counsel for the Respondents : Mr. S.K. Shandilya, Advocate.

Upon hearing the learned counsel for the parties, this Court made the following judgment:

(Per: Sri Alok Kumar Verma, J.)

These two Appeals have arisen from a

common judgment dated 15.02.2014, passed by the

learned IVth Additional Sessions Judge, Haridwar in

Sessions Trial No.822 of 2013 (Old Number 92 of

2005), "State vs. Yogesh", and in Sessions Trial No.823

of 2013 (Old Number 149 of 2005), "State vs. Neeraj

Dhiman and Rajneesh", by which, the respondent

Yogesh has been acquitted from the offence under

Sections 394, 302 and Section 201 of the Indian Penal

Code, 1860 (in short, "IPC"), and, the respondents

Rajneesh and Neeraj have been acquitted from the

offence under Section 302 IPC read with Section 34

IPC, Section 201 IPC read with Section 34 IPC and

Section 394 IPC.

2. The Government Appeal No.31 of 2015 will

be treated as a leading case.

3. In short, the prosecution case is that Rishipal

Saini (PW1) informed the police Gangnahar, Roorkee

through his written information (Ext. Ka1) that his

driver Manish Kumar (deceased) had gone to Nanawta

(a place) with his friends Neeraj Dhiman, Sushil and

Rajneesh along with his (informant) car, bearing

Registration No.HR06-J1797, who has not returned. On

this information, a missing case was registered.

4. On 22.05.2004, police got an information that

a dead body was lying in the forest of Village Jhabiran.

The dead body was identified as that of Manish Kumar.

The inquest proceedings and the post-mortem

examination of the dead body of the deceased were

conducted on the same day.

5. On the said information (Ext. Ka1) of the

informant, a Case Crime No. 77 of 2004 under Sections

302, 201 and Section 394 IPC was registered on

28.05.2004 against the respondent - accused Neeraj

Dhiman, respondent - accused Rajneesh and against

Sushil.

6. During the investigation, statement of one

Swatantra Kumar was recorded by the Investigating

Officer. According to Swatantra Kumar, on 27.05.2004,

Sushil, Sandeep, Neeraj and Yogesh had come his

house and they confessed his guilt in presence of

Pappu, the brother of Swatantra Kumar. Sandeep died

during the investigation. After completion of the

investigation, charge-sheets were filed against the

respondents - accused persons Neeraj Dhiman,

Rajneesh and Yogesh.

7. Both the cases were committed to the Court

of Session.

8. Charges under Sections 302 IPC read with

Section 34 IPC, Section 201 IPC read with Section 34

IPC and Section 394 IPC were framed against the

respondents - accused persons, namely, Rajneesh and

Neeraj. Charges under Sections 394 IPC, 302 IPC and

Section 201 IPC were framed against the respondent -

accused Yogesh. The respondents - accused persons

pleaded not guilty and claimed to be tried.

9. The prosecution examined eleven witnesses.

10. Statements under Section 313 of the Code of

Criminal Procedure, 1973 were recorded. The

respondents - accused persons denied all the

incriminating evidence, produced by the prosecution.

11. The respondents - accused persons did not

adduce any evidence.

12. After hearing the arguments of the parties

and after appreciation of evidence, the learned Trial

Court has passed the impugned judgment. Hence, the

present Government Appeals before us.

13. Heard learned counsel for the parties.

14. Mr. J.S. Virk, learned Deputy Advocate

General, submitted that the respondents-accused

persons had confessed their guilt and the "Last Seen

Theory" is also proved. The evidence, adduced by the

prosecution, are trustworthy, which are enough to

establish the involvement of the respondents-accused

persons in the commission of the crime.

15. On the other hand, Mr. Piyush Garg,

Advocate and Mr. S.K. Shandilya, Advocate have

supported the impugned judgment.

16. The law is well settled that the order of

acquittal strengthen the presumption of the innocence

of the accused. Equally, it is the duty of the Court to

see that the guilty do not escape from the punishment.

Therefore, we have carefully assessed the evidence,

adduced by the prosecution.

17. PW-1 Rishipal is the informant of this case.

He stated that he had a car, bearing Registration

No.HR06-J1797. On 19.05.2004, his driver Manish

(deceased) had gone to Nanawta with his friends Neeraj

Kumar, Sushil Kumar, Rajneesh Kumar, Sandeep and

Yogesh. These people killed his driver and he had

identified the dead body of his driver. He stated in his

cross-examination that his driver had told him that he

was going with Neeraj, Sushil, Rajneesh, Sandeep and

Yogesh. According to this witness, Neeraj, Sushil,

Rajneesh, Sandeep and Yogesh did not come to him.

18. PW-2 Neetu, PW-3 Ashok, PW-6 Karamveer

Singh and PW-8 Ravindra Pal Sengar are witness of

inquest proceedings.

19. According to the prosecution, PW-4 Yogendra

Sharma had written the report (Ext. Ka.1) on the

instructions of Rishipal Saini (PW-1).

20. PW-5 Dr. Vipin Kumar Jain conducted the

post-mortem examination of the dead body of the

deceased at 4.30 p.m. on 22.05.2004. According to

him, the cause of death was ante-mortem firearm

injury.

21. According to the prosecution, PW-7 Satish

Kumar Gupta is the brother of Swatantra Kumar, in

front of whom Sushil, Sandeep, Neeraj and Yogesh had

confessed their guilt on 27.05.2004. But, PW-7 Satish

Kumar Gupta did not support the prosecution case. He

stated in his examination-in-chief that Swatantra

Kumar was his elder brother. He had died. He stated

that no one came to his house on 27.05.2004. On that

day, Swatantra Kumar did not have any conversation

with the accused persons, nor did he hear any person

confessing his guilt.

22. PW-9 Constable Sanjay Ram Goswami had

converted the missing report into the offence under

Sections 302, 201 and 394 IPC.

23. PW-10 Sub-Inspector Darban Singh Panwar

and PW-11 Sub-Inspector Yogendra Singh are

Investigating Officers. According to the witness Sub-

Inspector Yogendra Singh (PW-11), the looted vehicle

(Registration No.HR06-J1797) could not be recovered.

24. The present case rests on circumstantial

evidence. When a case rests on circumstantial

evidence, such evidence must satisfy these tests:

(i) The circumstances from which the

conclusion of guilt is to be drawn, should be

fully established.

(ii) The facts so established should be

consistent only with the hypothesis of the

guilt of the accused, that is to say, it should

not be explainable on any other hypothesis

except that the accused is guilty.

(iii) The circumstances should be of a

conclusive nature.

(iv) 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.

25. The principle of circumstantial evidence

has been reiterated by the Hon'ble Supreme Court in

a plethora of cases. In C. Chenga Reddy vs. State

of A.P., (1996) 10 SCC 19 3, the Hon'ble Supreme

Court observed, "In a case based on circumstantial

evidence, the settled law is that the circumstances

from which the conclusion of guilt is drawn should be

fully proved and such circumstances must be

conclusive in nature. Moreover, all the circumstances

should be complete and there should be no gap left

in the chain of evidence. Further, the proved

circumstances, must be consistent only with the

hypothesis of the guilt of the accused and totally

inconsistent with his innocence." The same principles

were reiterated by the Hon'ble Supreme Court in

Trimukh Maroti Kirkan vs. State of

Maharashtra, (2006) 10 SCC 681, Mohd. Arif

alias Ashfaq vs. State (N.C.T. of Delhi), (2011)

13 SCC 621, Sunil Clifford Daniel vs. State of

Punjab, (2012) 11 SCC 205 and a number of other

decisions.

26. The circumstances, which are pressed into

service to fasten the guilt on the respondents-accused

persons are, as follow: -

(i) the deceased was last seen with the

respondents-accused persons.

(ii) the respondents-accused persons

confessed their guilt before the witness

Satish Kumar Gupta (PW-7).

27. In Nizam and another vs. State of

Rajasthan, 2015 (4) CCSC 2247 (SC), the Hon'ble

Supreme Court held that it is well settled that it is not

prudent to base the conviction solely on "last seen

theory". The "last seen theory" should be applied taking

into consideration the case of the prosecution in its

entirety, and keeping in mind the circumstances that

precede and follow the point of being so last seen.

28. Mr. J.S. Virk, learned Deputy Advocate

General, argued that the deceased was last seen with

the respondents-accused persons and the informant

Rishipal Saini (PW-1) is the witness of the last seen.

Whereas, the informant Rishipal Saini (PW-1) has

stated in his cross-examination that his driver

(deceased) had told him that he was going with

Yogesh, Neeraj, Rajneesh (respondents-accused

persons), Sushil and Sandeep. He further stated in his

cross-examination that these persons did not come to

him. Therefore, it is quite clear from this statement that

the informant Rishipal Saini (PW-1) himself did not see

the deceased going with the respondents-accused

persons. In these circumstances, the prosecution's

story of "Last Seen Theory" is not acceptable.

29. According to the prosecution, the

respondents-accused persons confessed his guilt on

27.05.2004 before one Swatantra Kumar and in the

presence of the witness Satish Kumar Gupta (PW-7),

brother of Swatantra Kumar. Due to the death of

Swatantra Kumar, he could not be produced in

evidence, while, the prosecution witness Satish Kumar

Gupta (PW-7) did not support the prosecution case. He

stated in his examination-in-chief that on 27.05.2004,

Swatantra Kumar did not have any conversation with

the accused persons, nor did he hear any person

confessing his guilt.

30. Although, firearm injury was found on the

dead body of the deceased and the death of the

deceased was homicide, the prosecution has to prove

that the death of the deceased was caused by the

respondents and in all human probabilities, the act

must have been done by the respondents-accused

persons only. Even grave suspicion cannot take place of

proof. There is no positive evidence placed on record

against the respondents-accused persons by the

prosecution to prove its case against them.

31. On a detailed examination and scrutiny of the

evidence of the prosecution, this Court upholds the

view taken by the learned Trial Court. In our

considered view, the prosecution has failed to establish

the commission of the alleged offence by the

respondents-accused persons beyond all reasonable

doubt. They deserve benefit of doubt. We are,

therefore, in complete agreement with the view taken

by the learned Trial Court; we see no reason to

interfere with the judgment and order impugned

herein.

32. As a result, the instant both the appeals are

liable to be dismissed. The said appeals are dismissed

accordingly.

33. A copy of this judgment be placed in the connected appeal.

(Alok Kumar Verma, J.) (Sanjaya Kumar Mishra, J.) 29.11.2022

Pant/