Uttarakhand High Court
State Of Uttarakhand vs Naseem on 5 March, 2024
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE THE CHIEF JUSTICE MS RITU BAHRI
AND
HON'BLE JUSTICE SHRI ALOK KUMAR VERMA
5th MARCH, 2024
GOVERNMENT APPEAL NO. 101 OF 2013
State of Uttarakhand ...... Appellant
Vs.
Naseem ......Respondent
Counsel for the Appellant : Mr. Amit Bhatt,
Government Advocate
assisted by Mr. Pankaj
Joshi, Brief Holder.
Counsel for the Respondent : Mr. S.R.S. Gill, Amicus
Curiae.
Upon hearing the learned counsel for the parties, this
Court made the following judgment :
(Per : Shri Alok Kumar Verma, J.)
This Government Appeal is directed against the
judgment dated 28.05.2013, passed by learned IVth
Additional Sessions Judge, Haridwar in Sessions Trial No. 89
of 2011, "State vs. Naseem", whereby, the learned trial
court has acquitted the respondent-accused from the
offence punishable under Section 302 of the Indian Penal
Code, 1860 (in short, "IPC").
2. In brief, the prosecution's case is that Smt. Anita,
the daughter-in-law of the informant-Phool Singh (PW1),
had gone to collect grass at around 4 p.m. on 08.10.2010.
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At around 4:30 in the evening, the informant came to know
from the villagers that she was lying injured in Brajveer's
field across the road. He reached the spot. She was not
conscious. There were marks of sticks on her legs, ear and
waist. She died on the spot.
3. An FIR No. 433 of 2010 (Ext. Ka19) was lodged
with Police Station Manglaur on 08.10.2010 at 18:20 hrs
pursuant to a written information (Ext. Ka1) received from
the informant. The FIR was registered against unknown
person. Sub-Inspector Prem Prakash Shah (PW4) reached
the spot. The Inquest report (Ext. Ka2) was prepared by
him. Human hair was found in the hands of the deceased.
After preparing the inquest report, other formalities were
performed to send the dead body for post-mortem. The
post-mortem examination of the dead body was conducted
by Dr. Ajay Mohan Agrawal (PW6) on 09.10.2010.
Mahendra Singh Negi (PW5), the Investigating Officer,
prepared the site plan (Ext. Ka11). A sickle, a chunari, a
pair of slippers, a bindi, a button, a stick, beedi, matchstick,
a pant, a purse and a torn diary were recovered from the
spot. "Naseem" was written on one page of the said diary.
The prosecution witness Parvinder (PW3), who was present
at the time of the seizure of the said articles, told that the
said sickle belonged to him, whereas the said purse, pant,
slippers, beedi and matchbox belonged to his servant
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Naseem. There was blood on the recovered sickle and
chunari.
4. Respondent-accused was absconding and after
the process of Section 83 of the Code of Criminal Procedure,
1973 was issued, he was arrested by the police on
27.02.2011 in the presence of Parvinder (PW3). One button
of the shirt worn by the accused at the time of his arrest
was found broken. The said shirt was seized by the police.
5. The accused confessed to the police that he
wanted to have sex with the deceased. The deceased had
opposed him. He hit her with a stick. The deceased had a
sickle. So he hit her with a rod (Sariya). One rod (Sariya)
was recovered by the police at the instance of the accused
in the presence of Parvinder (PW3) and hair was taken from
the head of the accused. There was blood on the tip of the
recovered rod (Sariya). The recovered chunari (Ext. 4),
sickle (Ext. 5), button (Ext.6), shirt (Ext. 16), hair found in
the hand of the deceased, hair of the accused, plain and
blood stained soil, taken from the spot, were sent to the
Forensic Science Laboratory in sealed condition. After
conclusion of the investigation, Mahendra Singh Negi, the
Investigating Officer, filed charge-sheet (Ext. Ka 17).
6. The Trial Court framed charge against the
respondent-accused under Section 302 IPC to which he
pleaded not guilty and claimed to be tried.
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7. The prosecution at the trial examined eight
witnesses.
8. Statement under Section 313 of the Code of
Criminal Procedure, 1973 was recorded. Respondent-
accused has denied all the incriminating evidence, adduced
by the prosecution.
9. The respondent-accused examined himself in his
defence.
10. Heard Mr. Amit Bhatt, learned Government
Advocate for the appellant and Mr. S.R.S. Gill, learned
Amicus Curiae.
11. Mr. Amit Bhatt, learned Government Advocate,
argued that the respondent-accused had confessed his guilt
and recoveries are also proved. Therefore, the evidence,
adduced by the prosecution, are trustworthy, which are
enough to establish the involvement of the respondent in
the commission of the crime.
12. Mr. S.R.S. Gill, learned Amicus Curiae has supported
the impugned judgment.
13. 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
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have carefully assessed the evidence, adduced by the
prosecution.
14. PW1 Phool Singh is the informant of this case.
15. PW2 Narendra Kumar is the witness of inquest
proceedings.
16. PW3 Parvinder is the star witness of this case. The
name of the respondent-accused came to light after this
witness identified the allegedly recovered articles. According
to the prosecution Parvinder (PW3) was present at the time
of recovery of rod (Sariya).
17. The inquest report (Ext.Ka.2) was prepared by Sub-
Inspector Prem Prakash Sah (PW4).
18. PW5 Mahendra Singh Negi is the Investigating
Officer.
19. PW6 Dr. Ajay Mohan Agarwal conducted the post-
mortem examination of the dead body of the deceased.
20. The First Information Report was scribed by H.C.
Ramlal, PW7.
21. PW8 Constable Anita had taken the dead body for
post-mortem.
22. The present case rests on circumstantial
evidence. When a case rests on circumstantial evidence,
such evidence must satisfy these tests:
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(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.
23. 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
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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.
24. The circumstances, which are pressed into service to
fasten the guilt on the respondent-accused are, as follow:-
i) The respondent-accused had confessed his guilt
before Police Officer.
ii) The recovery of incriminating articles indicates
the involvement of the respondent-accused in the crime.
25. Section 25 of the Indian Evidence Act, 1872 is
broadly worded and it excludes from evidence a confession
made by the accused to a Police Officer under any
circumstances.
26. It is neither natural nor reliable that four months
and nineteen days after the incident, the accused wore the
same shirt to create evidence against himself.
27. According to the Forensic Science Laboratory's
report, the hair recovered from the hand of the deceased
and the hair of the accused did not match, nor was any
blood found on the rod (Sariya).
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28. Although, injuries were 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 respondent and in all human
probabilities, the act must have been done by the
respondent-accused only. Even grave suspicion cannot take
place of proof. There is no positive evidence placed on
record against the respondent-accused by the prosecution
to prove its case against him.
29. 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 respondent-accused beyond all
reasonable doubt. He deserves 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.
30. As a result, the instant appeal is liable to be
dismissed. The said appeal is dismissed accordingly.
________________
RITU BAHRI, C.J.
___________________
ALOK KUMAR VERMA, J.
Dated: 05.03.2024
JKJ/SB
