Hemu Pant @ Hemu Kalu And Another ... vs State Of Uttarakhand
2022 Latest Caselaw 3267 UK

                                             1




                                                   Reserved on :- 12.07.2022
                                                   Delivered on :- 11.10.2022

         IN THE HIGH COURT OF UTTARAKHAND
                     AT NAINITAL


                 Criminal Appeal No. 336 of 2013


Hemu Pant @ Hemu Kalu and Another                             ..................Appellants

                                          -Versus-

State of Uttarakhand                                     ....................Respondent


Present: Mr. L.D. Joshi, learned counsel for the appellant no. 1.
         Mr. R.S. Sammal, learned counsel for the appellant no. 2.
         Mr. J. S. Virk, learned Deputy Advocate General for the State of Uttarakhand.




Coram:-
Sri Sanjaya Kumar Mishra, J.

Sri Alok Kumar Verma, J.

Upon hearing the learned counsel for the parties, the Court made the following order: (Per: Sri S.K. Mishra, J.)

1. The appellants - Hemu Pant @ Hemu Kalu and Manish

@ Kanchu Matiyani have taken exception to their

conviction by the learned District and Sessions Judge,

Nainital in Session Trial No. 30 of 2007, 31 of 2007 and

32 of 2007 as per judgment and order dated

19.08.2013 for the offence under Sections 364, 302

and 201 of the Indian Penal Code, 1860, (hereafter

referred to as "the Penal Code" for brevity), and also for

the offence under Section 4/25 of the Arms Act, 1959

(herein after referred to as "the Act" for brevity) and the

sentences awarded thereunder in a joint Trial in four

Sessions Case Nos. 30 of 2007, 31 of 2007, 32 of 2007

and 33 of 2007, which were disposed of by the same

judgment.

2. The present appellants along with Lokpal Mehra, Lalit

Mehra, Lakhan Singh and Atul Negi were tried for the

aforesaid offences. However, the co-accused were

acquitted by the learned Sessions Judge, Nainital.

3. Bereft of all unnecessary details, the case of the

prosecution comes on 12.12.2006, a First Information

Report 'Exhibit Ka-2' was presented by the

complainant- Krishna Kumar Singh Bhakuni (Cousin of

the deceased) before the S.H.O., Police Station

Haldwani in the District of Nainital, interalia, stating

that in the night of 11.12.2006, he along with

Tarunjeet Singh Bhakuni went to attend Reception in

Subhash Nagar at the house of one Tiwari Ji. At the

place of reception, it came to know that Lalit Mehra

being injured was admitted in 'Krishna Nursing Home,

Haldwani'. Therefore, the complainant and others went

to see him, where Lokpal Mehra, Hemu Pant, Atul Negi

and Kanchu Matiyani met them outside the 'Krishna

Nursing Home'. Hemu Pant abused Tarunjeet Singh

Bhakuni. A scuffle resulted. One Deepak Gangola

rescued him. Thereafter, the complainant and

Tarunjeet Singh Bhakuni came back to the Reception.

At about 10/10:30 PM, the appellants - Hemu Pant

and Kanchu Matiyani along with Lakhan Singh, Atul

Negi, Lokpal Mehra and Lalit Mehra came to the place

where, the reception was being held in a blue colour

car. They were armed with sharp edged weapons and

lathi - dande ¼ykBh&MaMs½ etc. and they started to beat

Tarunjeet Singh Bhakuni and forcibly took him away in

that car. The complainant further, thought that

deceased would eventually come back, so after having

his meal, he went to his house. In the next morning, he

came to know that deceased - Tarunjeet Singh Bhakuni

had not reached his house. The complainant searched

him along with his family members.

On the way, he came to know that dead body was

recovered from the place of Village - Prempur

Loshgyani. They all reached there and saw the dead

body of Tarun Bhakuni. He identified the dead body

before the police and prayed for necessary legal action

against the accused persons.

On the basis of F.I.R. Crime No. 159/2007 was

registered for the offences stated above against all the

accused persons including the present appellants and

investigation was taken up.

In course of investigation, the Investigating Officer

examined the complainant and other witnesses, and on

the basis of recovery of arms and the discovery

statement made by Manish Matiyani, Hemu Pant and

Lalit Mehra, three separate cases were registered as

Crime Case Nos. 6463 of 2006, 6557 of 2006 and 159

of 2007 respectively under Section 4/25 of the Arms

Act.

The dead body of the deceased was sent for post

mortem examination and after completion of

investigation, charge-sheet has been submitted against

all the accused persons. The defence took the plea of

simple denial and false accusation in this case.

4. In order to proof its case, the prosecution examined

15 witnesses and led into the evidence, several

documents and material objects. PW2 - Krishna

Kumar Singh Bhakuni is the informant in this case.

He happens to be the cousin of the deceased. PW1 -

Hemant Tiwari, PW3 - Deepak Gangola, PW4 -

Rajendra Singh Negi and PW7 - Anup Singh

Thathola (brother-in-law of the deceased) have not

supported the case of the prosecution and has

turned hostile to it. PW8 - Devendra Singh Bhakuni

and PW9 Rohit Bhakuni are witnesses to the

inquest, PW10 - Baljeet Singh Bhakuni (elder

brother of the deceased) is a witness to the recovery

of Khukhri and wallet and PW11 - Anand Singh is a

witness to the recovery of khookhri, PW5 - Dr. D.C.

Bhatt has conducted the post mortem examination

of the dead body of the deceased, PW6 - Aijaj Khan,

PW12 - S.I. Jagdish Singh Dhakriyal, PW13 - S.I.

K.R. Arya and PW14 - S.I. Arvind Kumar Nain are

police officers, who have taken part in the

investigation of the case like holding inquest and

being witness of the recovery etc. PW15 - H.B. Sain,

Senior Sub-Inspector has investigated into the case

and has submitted the charge-sheet against the

accused persons. The defence, on the other hand,

examined Dr. Harbhajan as DW1.

5. Admittedly, the case of the prosecution is based

entirely upon circumstantial evidence. However, the

defence has not challenged the identity of dead

body of the deceased and that it was put to post

mortem examination by PW5 - Dr. D.C. Bhatt.

6. It is apparent that he has conducted post mortem

of the dead body of the deceased and found that he

had sustained several injuries on his body like 9

incised injuries and several other injuries, which

reads as under:-

i. An incised would 4 cm x 0.2 cm x bone deep

lying obliquely on left side of forehead 3 cm.

above left eyebrow. Margins are clean cut.

ii. An incised would 1.5 cm. x 0.2 cm x bone deep

lying obliquely 1 cm above the injury no. 1.

Margins are clean cut.

iii. An incised wound 4.5 cm. x 0.2 cm x bone

deep on the middle of forehead lying

horizontally. Margins are clean cut.

iv. An incised wound 2.5 cm. x 0.2 cm x maxilla

deep on right side face lying 1.5 cm. below

right outer angle of eye. Margins are clean cut.

v. An incised wound 3 cm. x 0.2 cm x bone deep

on right side forehead lying obliquely 3 cm.

above the hair line on right side.

vi. An incised wound 3 cm. x 0.2 cm x bone deep

on the middle of head. Margins are clean cut

lying obliquely.

vii. An incised wound 6 cm. x 0.2 cm x bone deep

lying obliquely on left side head 4 cm. above

left ear at 1 o'clock position. Margins are clean

cut.

viii. Right Pinna cut size 3 cm.

ix. An incised wound 2.5 cm. x 0.2 cm x bone

deep 0.5 cm in front of left ear lobule. Margins

are clean cut.

x. An incised wound 2.5 cm. x 0.2 cm x bone

deep on the back of head lying obliquely 8 cm.

away from left ear at 3 o'clock position.

Margins are clean cut.

xi. An abraded contusion 8 cm. x 4 cm. on left

side abdomen lying 9.5 cm. above umbilicus at

1 o'clock position.

xii. An abrasion 4 cm x 2 cm on the back of right

hand.

xiii. Lower end of right tibia fractured.

xiv. An abrasion 7 cm x 2 cm in from of right leg.

xv. An abrasion 8 cm x 3 cm. in front of left leg.

7. He has given a very categorical finding that the

injury nos. i to x could be possibly by sharp weapon

like Khukhri but the death was caused particularly

because of injury nos. vi and vii as stated above.

8. Both the injuries have clear cut margins. The

doctor also found fracture on the right and left

parietal bone and left temporal bone. Thus, it is

clear that the death of the deceased was due to

bodily injuries inflected upon him by sharp edged

weapon and that death was caused because of the

injuries to the head, hence, the death of the

deceased was definitely homicidal.

9. In order to establish its case, the prosecution has

mainly relied upon the evidence of PW2, who is the

informant and also cousin of the deceased. It is

stated by this witness examined as PW2 that on the

date of occurrence, they had been to the Reception

party of one Tiwari Ji at Haldwani, where Lalit

Mehra met with an accident has been admitted to

'Krishna Nursing Home'. Thereafter, the informant -

PW2 and the deceased - Tarunjeet Singh Bhakuni

went to the said Nursing Home. In front of the

hospital on the thandi road, they saw Hemu Pant,

Lokpal Mehra, Kanchu Matiyani and Atul Negi.

There Hemu Pant started assaulting the deceased,

but witness Deepak Gangola came and separated

them. He also gave a slap to the appellant - Hemu

Pant and then also reprimand them.

The witness, further states that they returned to

the Reception of Tiwari. While, they were present

there, the accused persons - Lokpal Mehra, Hemu

Pant, Kanchu Matwani, and Atul Negi came in a

blue color Santro car bearing Registration No. UP

02D-6272 and started abusing the deceased -

Tarunjeet Bhakuni. They also took away the

deceased in that car, at that time, they were being

armed with lathi - dande (ykBh&MaM)s , chaku (pkdw),

Khurkhri ([kw[kjh) etc.

10. This witness was believed partly by the learned

Sessions Judge in the sense that the learned

Session Judge came to conclusion that he is

implicating the appellants - Hemu Pant and

Kanchu Matwani but for the reasons that are not

reflected in the judgment, he has not relied upon

the evidence of the witness to implicate the accused

- Lokpal Mehra and Atul Negi. Though, he has

specifically stated their names. Thus, it is clear that

the evidence of PW2 cannot be accepted to be a

wholly reliable witness.

11. Moreover, the last seen of the deceased was about

10:00 PM in the night of 11.12.2006, where the

dead body of the deceased was found on the next

day morning. So there is a considerable time gap

between the last seen of the appellants with the

deceased and recovered of the dead body. Though,

not in all cases, a gap of 7 to 8 hours will be

material but in this case, it appears to be material

as the witness himself has stated that he did not

think it inappropriate or that he felt apprehensive

because of the fact that they took away the

deceased in their car as there was good relationship

between them and they were acquainted with each

other. Moreover, it is further seen that the witness

stated that the appellants and deceased were good

friends.

12. The prosecution, in this case, has neither made any

attempt to prove motive on the part of the

appellants nor has any finding been given regarding

existence of motive. In a recently decided case of

"Nandu Singh vs. State of Madhya Pradesh

Manu/SC/0477/2022", the Hon'ble Supreme Court

has held that in a case that based entirely upon

circumstantial evidence complete absence of

motive, weighs in favour of the accused. In this

case, no motive has been suggested, much less,

proved.

13. In Anwar Ali v. State of Himachal Pradesh

MANU/SC/0723/2020 : (2020) 10 SCC 166, the

Hon'ble Supreme Court made the legal position

clear in following words:-

"Now so far as the submission on behalf of the

accused that in the present case, the

prosecution has failed to establish and prove

the motive and therefore the accused deserved

acquittal is concerned, it is true that the

absence of proving the motive cannot be a

ground to reject the prosecution case. It is also

true and as held by the Hon'ble Supreme Court

in Suresh Chandra Bahri v. State of Bihar

MANU/SC/0500/1994 : 1995 Supp (1) SCC 80,

that if motive is proved that would supply a link

in the chain of circumstantial evidence but the

absence thereof cannot be a ground to reject the

prosecution case. However, at the same time, as

observed by this Court in Babu Babu v. State of

Kerala MANU/SC/0580/2010 : (2010) 9 SCC

189, absence of motive in a case depending on

circumstantial evidence is a factor that weighs

in favour of the accused."

14. The only materials available against the two

appellants are recovery of two weapons of offence

and a wallet. It is borne out from the evidence of

PW10 that he accompanied the police team to the

place, where the Khukhri and wallet concealed by

Kanchu and on he is pointing out the Khukhri and

the wallet of the deceased were recovered. Though,

he has proved the wallet in the Court, where from

the photograph of the deceased as well as some

visiting cards were found. This witness has not

stated in categorically terms that the wallet belongs

to the deceased and that he was ordinarily carrying

the wallet with him, so, this Court is of the opinion

that a recovery of the wallet and absence of any

statement that such wallet belongs to the deceased

or that the deceased was always carrying the wallet

in the ordinary course, would not connect it with

the crime.

15. Two other materials like knife and Khukhri have

been recovered at the instance of appellants - Hemu

Pant and Kanchu Matiyani but these weapons of

offence were never sent for chemical examination to

find out, if the blood of the deceased could be

detected on the same, so, the recovery of two

weapons at the instance of both the appellants

would by itself would not prove its connection with

the crime.

16. Thus, this Court is of the opinion that in this case,

all the circumstances were not established

conclusively. It is the opinion of this Court that the

circumstances, which have been established in this

case, do not form a complete chain of events or

circumstances on erringly pointing out towards the

guilt of the appellants.

17. In other words, this Court is of the opinion that

there is a reasonable doubt regarding the complicity

of these two appellants in the commission of the

crime allegedly committed by them. Hence, this

Court is of the opinion that the appellants should

be given benefit of doubt, especially when the

learned Session Judge has not accepted the case of

the prosecution, as far as, Lalit Mehra and Atul

Negi are concerned, the conviction of these

appellants should be set-aside.

18. In that view of the matter, the appeal is allowed and

the judgment and order dated 19.08.02013 passed

by the learned Sessions Judge, Nainital in the

aforesaid case is hereby set-aside.

19. The appellant no. 2 - Manish @ Kanchu Matiyani is

on bail, he shall surrender before the learned

Sessions Judge in connection with this case. He be

set at liberty, if not wanted in any other case, after

execution of bond u/S 437A of the Code. The

appellant no. 1 - Hemu Pant @ Hemu Kalu is in

jail. He be set at liberty forthwith if not wanted in

any other case, after compliance of Section 437A of

the Code.

20. Trial Court Records be sent back.

(Alok Kumar Verma, J.) (Sanjaya Kumar Mishra, J.) 11.10.2022

A/-