Uttarakhand High Court
State Of Uttarakhand vs Raju Das on 13 May, 2024
Author: Alok Kumar Verma
Bench: Ravindra Maithani, Alok Kumar Verma
RESERVED
HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE JUSTICE SHRI RAVINDRA MAITHANI
AND
HON'BLE JUSTICE SHRI ALOK KUMAR VERMA
13th May, 2024
CRIMINAL REFERENCE NO.01 OF 2018
State of Uttarakhand
Versus
Raju Das ...Respondent
Counsel for the State : Mr. J.S. Virk, Deputy
Advocate General
assisted by Mr. Pankaj
Joshi, AGA and Mr.
Rakesh Kumar Joshi,
Brief Holder.
Counsel for the Respondent : Mr. R.P. Nautiyal, Senior
Advocate assisted by Ms.
Garima Thapa, Advocate.
With
CRIMINAL JAIL APPEAL NO.18 OF 2018
Raju Das ...Appellant
Versus
State of Uttarakhand ...Respondent
Counsel for the Appellant : Mr. R.P. Nautiyal, Senior
Advocate assisted by Ms.
Garima Thapa, Advocate.
2
Counsel for the Respondent : Mr. J.S. Virk, Deputy
Advocate General
assisted by Mr. Pankaj
Joshi, AGA and Mr.
Rakesh Kumar Joshi,
Brief Holder.
With
CRIMINAL JAIL APPEAL NO.28 OF 2018
Kundan Das ...Appellant
Versus
State of Uttarakhand ...Respondent
Counsel for the Appellant : Mr. Mohd. Matlub,
Advocate.
Counsel for the Respondent : Mr. J.S. Virk, Deputy
Advocate General
assisted by Mr. Pankaj
Joshi, AGA and Mr.
Rakesh Kumar Joshi,
Brief Holder.
With
CRIMINAL JAIL APPEAL NO.29 OF 2018
Guddu ...Appellant
Versus
State of Uttarakhand ...Respondent
Counsel for the Appellant : Mr. Rajendra Singh Azad,
Advocate.
Counsel for the Respondent : Mr. J.S. Virk, Deputy
Advocate General
assisted by Mr. Pankaj
Joshi, AGA and Mr.
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Rakesh Kumar Joshi,
Brief Holder.
With
CRIMINAL JAIL APPEAL NO.30 OF 2018
Bablu ...Appellant
Versus
State of Uttarakhand ...Respondent
Counsel for the Appellant : Mr. Rajendra Singh Azad,
Advocate.
Counsel for the Respondent: Mr. J.S. Virk, Deputy
Advocate General
assisted by Mr. Pankaj
Joshi, AGA and Mr.
Rakesh Kumar Joshi,
Brief Holder.
Reserved on: 26.04.2024
Delivered on : 13.05.2024
Upon hearing the learned counsel for the parties,
this Court made the following judgment :
Judgment: (per Mr. Alok Kumar Verma, J.)
The Criminal Reference and these four
Appeals have arisen from a common judgment and
order dated 27.03.2018/30.03.2018, passed by learned
Additional Sessions Judge, Vikasnagar, District
Dehradun in Sessions Trial No.39 of 2015 "State of
Uttarakhand vs. Raju Das and three Others". All the
appellants - accused have been convicted for the
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offence punishable under Sections 302, 201, 392, 411
and Section 120B of the Indian Penal Code, 1860 (in
short, "IPC").
2. The Trial Court has awarded death sentence
to the appellant - accused Raju Das for the offence
under Section 302 IPC and referred the matter to this
Court for confirmation of the same in terms of the
provisions of Section 366 of the Code of Criminal
Procedure, 1973.
3. Appellants Kundan Das, Guddu and Bablu
have been sentenced to undergo imprisonment for life
and a fine of Rs.50,000/- each for the offence
punishable under Section 302 IPC and in default of
payment of fine to further undergo for two years each.
4. All the appellants have been sentenced to
suffer rigorous imprisonment for a period of seven years
each and a fine of Rs. 10,000/- each for the offence
under Section 201 IPC, and in default of payment of
fine, they have been directed to undergo further
imprisonment for a period of six months. They have
been sentenced to undergo rigorous imprisonment for a
period of ten years each and a fine of Rs. 25,000/- each
for the offence under Section 392 IPC and in default of
payment of fine to further undergo imprisonment for a
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period of one year each. They have been sentenced to
undergo rigorous imprisonment for a period of three
years each and a fine of Rs.5,000/- each for the offence
under Section 411 IPC and in default of payment of fine
to further undergo imprisonment for a period of one
month each. They have been further sentenced to
undergo imprisonment for life along with a fine of Rs.
25,000/- each for the offence under Section 120B IPC,
and in default of payment of fine, they have been
directed to undergo further imprisonment for a period of
one year.
5. The Criminal Reference will be treated as a
leading case.
6. The prosecution case briefly stated is that
Sub-Inspector Thakur Singh Rawat (PW4) was the
officer-in-charge at Purola Police Station. On
31.10.2014, on receiving an information about the dead
body of an unknown person in the bushes near the
road, he reached on the spot along with other police
personnel and conducted inquest proceedings. About
seven feet long nylon rope (Material Ext. 48) and about
four feet long white cotton cloth (Material Ext. 49) was
tied around the neck of the deceased. The said nylon
rope and white cotton cloth were seized by the police
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vide Memo (Ext. Ka.57). After preparing the inquest
report (Ext. Ka.21), other formalities were performed to
send the dead body for post-mortem examination.
7. The post-mortem examination of the dead
body of the unknown person, aged about 32 years, was
conducted by Dr. Bhagendra Singh Rawat (PW6) on
01.11.2014.
8. An FIR No. 15 of 2014 (Ext. Ka. 13) was
lodged at Police Station Purola, District Uttarkashi on
10.11.2014 at 20.15 hrs pursuant to a written
information (Ext. Ka. 1) received from Sub-Inspector
Ravi Prasad (PW1). The FIR was registered by
Constable Vikram Singh Tomar (PW2) against unknown
person under Section 302 IPC and Section 201 IPC.
9. The investigation was handed over to Sub-
Inspector Ravi Prasad (PW1).
10. Mriganka Das (PW9), resident of District
Nadia, West Bengal, gave a report dated 29.10.2014
(Ext. Ka. 25) to Police Station Saket, New Delhi stating
that his sister Moumita Das used to reside in Delhi. She
went to visit Dehradun with her friend Abhijit Pal. His
sister's mobile phone number 08826454369 is switched
off since 23.10.2014.
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11. Durga Das Rathore (PW8), who was the Sub-
Inspector posted at Saket Police Station, inquired into
the said missing report. Call details of Moumita Das's
mobile phone number 8826454369 and Abhijit Pal's
mobile phone number 7042711318 were obtained by
him. Moumita Das's mobile phone was continuously
switched off since 23.10.2014. An application (Ext. Ka.
26) was given by him to the Commissioner of Police,
New Delhi to get the International Mobile Equipment
Identity (in short, "IMEI") number of the mobile phone
of Moumita Das and Abhijit Pal. On receiving the call
detail report, it was revealed that several calls had been
made from Abhijit Pal's mobile phone to mobile phone
number 9917881103 on 23.10.2014. Therefore, an
application (Ext. Ka. 27) was given by him to the
Commissioner of Police, New Delhi to get the call detail
report of Raju's mobile phone number 9917881103.
12. Abhijit Pal's family members were contacted
by Sub-Inspector Durga Das Rathore (PW8) on
08.11.2014, who informed him that Abhijit Pal's father
had lodged a missing report of Abhijit Pal at Police
Station Dum Dum, Kolkata.
13. As per call detail report, Subscriber Identity
Module (in short, "SIM") number 8979480447 was
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found to be used in Moumita Das's mobile phone from
24.10.2014. On receiving the identification report of the
said number by Sub-Inspector Durga Das Rathore
(PW8), it was found that the said SIM number was in
the name of one Mohan Das son of Karam. On
contacting by Sub-Inspector Durga Das Rathore (PW8)
on the said SIM number, he came to know that the said
SIM number was being used by Raju Das (appellant).
14. Durga Das Rathore (PW8), Constable Gopal
(PW7) and Abhijit Pal's cousins Amitabh Das (PW10)
and Joyonta Pal (PW11) reached Police Station
Vikasnagar, District Dehradun on 09.11.2014 in search
of Raju Das. They reached Police Station Chakrata on
10.11.2014. They came to know that a few days ago an
unidentified dead body was found in Purola. They
reached Police Station Purola on 10.11.2014. After
seeing the inquest report and the photograph of the
deceased at Police Station Purola, Amitabh Das (PW10)
and Joyonta Pal (PW11) identified the photograph as
that of their cousin Abhijit Pal. Regarding the
identification of the deceased, an application (Ext.
Ka.34) was given by Joyonta Pal (PW11) to the Police
Station Purola.
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15. On 11.11.2014, Sub-Inspector Ravi Prasad
(PW1), officer-in-charge of Police Station Chakrata,
Mukesh Thaledi (PW5), Constable Gopal (PW7), Sub-
Inspector Durga Das Rathore (PW8), Amitabh Das
(PW10) and Joyonta Pal (PW11) went to Tiger Fall via
Lakhamandal in search of suspect Raju Das. They got
information from an informer that Raju Das was going
to Vikasnagar from Tungrauli village in his Bolero
bearing Registration Number UK07TA/7916. After
sometime, Raju Das was seen coming in his said
vehicle. He was apprehended at 11:30 a.m. He was
shown the photographs of Moumita Das and Abhijit Pal.
16. While confessing his guilt, Raju Das stated
that he had taken them in his vehicle to go to Tiger Fall
on 23.10.2014 at around 05:30 p.m. On the way, he
met Kundan, Guddu and Bablu, residents of his village,
at Chakrata Gate. They sat in the back seat of his
vehicle because he had to leave both of them at Tiger
Fall and go to his village. On the way, his village friends
started molesting the girl sitting on the middle seat. The
boy sitting in the vehicle protested them. They beat
him. Instead of taking the vehicle to Tiger Fall, he took
it towards Lakhamandal. On the way, his companions
tied a rope around the boy's neck from behind and
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killed him. Keeping the boy's body on the back seat, all
three of them came to the middle seat. He took his
vehicle beyond Lakhamandal. He, Guddu and Kundan
caught hold of the girl's hands and legs and Bablu raped
her. They feared that if the girl was left alive, they
would be trapped, so they strangled the girl to death
with a scarf. To dispose of the dead bodies, they
reached the Yamuna bridge at Varnigad at around 10-
11 p.m. It was very dark on the bridge. They took out
the girl's dead body from the vehicle and threw it in the
Yamuna river. Then they saw the light of a vehicle
coming from Navgaon. So, keeping the boy's body in
the vehicle, they went towards Navgaon. He stopped
the vehicle at a lonely place. They threw the body off
the road. Thereafter, they went to their village by
vehicle via Lakhamandal. He further told that Bablu,
Kundan and Guddu work in the village. They can be
found in the village.
17. During the search of Raju Das, a purse
(Material Ext. 11) was found in his pocket, which
contained Rs.200/- (Material Ext. 10), Voter ID card of
Mohan Das (Material Ext. 9) and a copy of the photo
identity card of the deceased Abhijit Pal (Material Ext.
8). Raju Das told that the purse belonged to Abhijit Pal.
11
The police party went towards his village Tungrauli with
Raju Das and his Bolero vehicle. Three persons were
seen coming on the road outside the village. Raju Das
indicated that the persons coming were Kundan, Bablu
and Guddu. They were apprehended. Bablu had covered
himself with a shawl (Material Ext. 4), seeing which
Amitabh Das told that it was the shawl of his deceased
brother. During the search of Kundan Das, a black
colored Nokia model 1616 mobile phone (Material Ext.
6) without SIM, whose IMEI number was 3534-
06043775891, was recovered from the pocket of his
pants. Nothing was recovered from Guddu during his
search. They were arrested at 14:00 hrs. The recovered
articles were sealed on the spot. Despite efforts,
member of the public could not be found to testify.
Recovery Fard (Ext. Ka.2) was prepared by Sub-
Inspector Ravi Prasad (PW1). The Fard was signed by
the witnesses present and the accused persons. A copy
of Fard was jointly given to the accused persons.
Constable Dharmendra drove Raju Das's Bolero vehicle
and took the vehicle to the police station.
18. On 11.11.2014 at 20:00 hrs., the police
seized the seat cover (Material Ext. 1) of the Bolero
Jeep and sealed it vide Memo (Ext. Ka. 8).
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19. On 11.11.2014, a site plan (Ext. Ka. 14) of
the place from where Abhijit's dead body was recovered
was prepared by Sub-Inspector Ravi Prasad (PW1).
20. On 13.11.2014, Sub-Inspector Thakur Singh
Rawat (PW4) along with other police personnel,
including female police personnel, reached the banks of
Yamuna river. A dead body of a woman was found
between two streams of Yamuna river. Apart from a
black shirt above her waist, there was no other clothing
on her body. The body was identified by Suranjana Rai
and Ram Kumar, relatives of the deceased present at
the spot. But, they told that they are only 50 percent
sure that the said dead body is that of Moumita Das.
Sub-Inspector Thakur Singh Rawat (PW4) conducted
inquest proceedings. After preparing the inquest report
(Ext. Ka. 15), other formalities were performed to send
the dead body for post-mortem examination.
21. Mriganka Das (PW9), brother of the
deceased, identified her after looking at the photograph
of her dead body on 15.11.2014.
22. The post-mortem examination of the dead
body of Moumita Das, aged about 28 years, was
conducted by Dr. Anand Singh Rana (PW13) with the
help of his colleague Dr. B.S. Rawat on 15.11.2014.
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23. Sub-Inspector Thakur Singh Rawat (PW4)
obtained police custody remand of all the accused from
the Chief Judicial Magistrate, Uttarkashi on 18.11.2014.
24. It was told by all the accused that they had
thrown away the bags of the deceased persons.
25. Sub-Inspector Thakur Singh Rawat (PW4),
Sub-Inspector Ravi Prasad (PW1) and other police
constables reached Kalsi- Chakrata motor road with all
the accused on 19.11.2014. Raju Das asked the police
to stop the vehicle and told that he had thrown the bags
down from there. Two bags were recovered at the
behest of Raju Das and Bablu. A battery charger, black
colored pants, a stall, a pencil, a pen, an air ticket from
Howrah to New Delhi, train ticket, one diary and other
articles (Material Ext. 15 to 24) were found in a bag
(Material Ext. 14). In the another bag (Material Ext.
13), a blue colored diary, a kurta, a pajama, a half T-
shirt, a copy of Moumita Das's voter card, ladies
undergarments, a copy of Abhijit's PAN card and other
articles (Material Ext. 25 to 46) were found. A site plan
of the recovery place (Ext. Ka. 18) and a Recovery
Memo (Ext. Ka. 19) were prepared by Sub-Inspector
Thakur Singh Rawat (PW4).
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26. The investigation of this case was handed
over to Sub-Inspector Thakur Singh Rawat (PW4) on
12.11.2014.
27. Since the incident place was in Dehradun, the
investigation of this case was transferred to Dehradun.
In compliance with the order of the Superintendent of
Police, Dehradun, the investigation of this case was
taken over by Digpal Singh Kohli, SSI of Police Station
Vikasnagar, Dehradun (PW15) on 29.11.2014.
28. The investigation of this case was transferred
to Sub-Inspector Pratibha (PW16). An application was
given by her to the Chief Judicial Magistrate to take the
sample of Bablu's blood. After the order of the Chief
Judicial Magistrate, the sample of Bablu's blood was
taken by the doctor. The seat cover of the vehicle and
blood sample were sent to the Forensic Science
Laboratory through the Constable Mukesh Chandra
Chamoli (PW17). The statements of the witnesses
recorded by the former investigators were perused by
Sub-Inspector Pratibha (PW16). The statements of the
witnesses were recorded by her and after concluding
the investigation, a charge-sheet (Ext. Ka. 55) was filed
by her against all the accused under Sections 302, 201,
392, 411, 376D, 120B and Section 34 IPC.
15
29. The trial court framed charges against the
appellants-accused under Sections 120B, 302, 201,
392, 411 and Section 376 read with Section 34 IPC. As
the appellants-accused pleaded innocence, trial was
held.
30. In order to establish the accusations,
prosecution examined 20 witnesses.
31. Statements under Section 313 of the Code of
Criminal Procedure, 1973 were recorded. Appellants-
accused denied all the incriminating evidence, produced
by the prosecution.
32. Five witnesses have been examined in
defence.
33. Munna Das (DW1) is the real brother of the
appellant Kundan. Roshan Lal (DW2) is the real brother
of the appellant Guddu. According to Jagat Ram (DW3)
and Amar Singh (DW4), they had gone to their
relatives' house in village Tungrauli and according to
Khema Das (DW5), he had gone to village Tungrauli to
buy potatoes. The appellants are residents of village
Tungrauli. As per the defence witnesses, at around 12-1
in the night of 11.11.2014, Kundan and Guddu were
taken away from their houses by the police. Munna Das
16
(DW1), Roshan Lal (DW2), Jagat Ram (DW3) and Amar
Singh (DW4) have stated that there is a dispute
regarding land and trees between Raju Das's family and
families of Guddu and Kundan.
34. The trial court after hearing counsel for the
respective parties and considering the material available
on record, by the impugned judgment while acquitting
the appellants-accused of the charge under Section 376
read with Section 34 IPC convicted them under Sections
120B, 302, 201, 392 and Section 411 IPC.
35. Mr. R.P. Nautiyal, learned Senior Advocate,
contended that Raju Das was not arrested at the place
from where he was said to be arrested, which is also
supported by the statement made by Sub-Inspector
Durga Das Rathore (PW8) in his cross-examination
where he stated that the arrest memo was not prepared
at the place where Raju Das was arrested. The
confessional statement is not admissible. The alleged
recovery is false. There was no independent witness at
the time of the alleged recovery. There are serious
contradictions in the statements of prosecution
witnesses, and, no reliable evidence regarding
conspiracy has been produced by the prosecution.
17
36. Mr. Mohd. Matlub, Advocate and Mr. Rajendra
Singh Azad, Advocate have supported the arguments of
Mr. R.P. Nautiyal, Senior Advocate.
37. On the other hand, Mr. J.S. Virk, learned
Deputy Advocate General, has supported the impugned
judgment. He contended that the chain of circumstances
proved on the record against the appellants is as under:-
(i) The appellant Raju Das confessed his guilt
before the prosecution witnesses Amitabh Das
(PW10) and Joyonta Pal (PW11).
(ii) Recovery of purse, Voter ID of Mohan Das, a
copy of the photo identity card, shawl of the
deceased Abhijit Pal, mobile phone of the
deceased Moumita Das and two bags.
(iii) Conspiracy of the appellants - accused in the
commission of offence.
38. The present case rests on circumstantial
evidence. No one had seen the assault by the
appellants on the deceased.
39. 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
18
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.
40. In Sharad Birdhi Chand Sarda vs. State of
Maharashtra, (1984) 4 SCC 116, the Hon'ble
Supreme Court held that 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 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.
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(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.
41. 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 193, the Hon'ble Supreme Court
observed, "In a case base 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
20
SCC 621, Sunil Clifford Daniel vs. State of Punjab,
(2012) 11 SCC 205 and a number of other decisions.
42. On the basis of the above well-settled
principles, we proceed to examine whether the
appellants can be held to be guilty.
43. The name of accused Raju Das had come to
light before he confessed. Therefore, Durga Das
Rathore (PW8), who was the Sub-Inspector posted at
Saket Police Station, had given an application (Ext. Ka.
27) to the Commissioner of Police, New Delhi to get the
call details of Raju Das's mobile phone. Section 25 of
the Indian Evidence Act is broadly worded and it
excludes from evidence a confession made by the
accused to a police officer under any circumstances.
The phrase "accused of any offence" means a person
against whom a formal accusation relating to the
commission of an offence has been levelled. A
confession made to a police officer is inadmissible not
only against the person making it but is also
inadmissible against the other accused and a confession
made by a person while he was in the custody of the
police is also inadmissible under Section 26 of the
Indian Evidence Act unless made in the immediate
presence of a Magistrate.
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44. The case of the prosecution is that Raju Das
was using mobile phone number 9917881103. As per
call detail report, SIM number 8979480447 was found
to be used in Moumita Das's mobile phone from
24.10.2014. On receiving the identification report of the
said number, it was found that the said SIM number
was in the name of one Mohan Das son of Karam. The
said SIM number was being used by Raju Das.
45. Hussain Mustafa Jaidi (PW18), the Nodal
Officer of Idea Cellular Limited, has stated that the
hand set of IMEI Number 355531042137690 was being
used on mobile phone number 9917881103 and before
that the hand set of IMEI Number 911358850163080
was being used. Vishal Mishra (PW19), the Nodal
Officer of Bharti Airtel Limited, has stated that the SIM
Number 8979480447 was allotted to Mohan Das son of
Karam. The prosecution witness Chandrashekhar
(PW20), the Nodal Officer of Bharti Airtel Limited, has
stated that Pre-Paid SIM Number 7042711318 was
allotted to Abhijit Pal.
46. The IMEI number is a unique number for
identifying a device. It identifies the mobile phone's
model, date of purchase etc. IMEI numbers help track
down the stolen mobile phone. The prosecution has not
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produced any reliable evidence in relation to the IMEI
number of Abhijit Pal's mobile phone nor has any
cogent evidence been produced that the IMEI Number
355531042137690 or IMEI Number 911358850163080
belonged to Moumita Das.
47. The case of the prosecution is that on
19.11.2014, at the instance of the appellants-accused,
two bags of the deceased were recovered, which were
taken into possession vide Memo (Ext. Ka. 19) and both
the bags were kept in a white cloth and sealed on the
spot. One of the recovered bags was shown to
Mriganka Das (PW9), the brother of the deceased, who
claimed that the bag and the items in it belonged to his
sister (deceased), but, he has stated in his cross-
examination that he was shown only the items. The
said items were neither sealed nor opened in his
presence. That is, the said articles were in open
condition at that time. This contradiction has not been
explained by the prosecution. As a result of the said
contradiction not being explained by the prosecution,
the case of the prosecution becomes doubtful that the
alleged articles were recovered at the instance of the
appellants-accused which were sealed on the spot.
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48. As per the prosecution, Raju Das was
apprehended. A purse was found in his pocket, which
contained a Voter ID card of Moumita Das (deceased)
and a copy of Identity Card of the deceased Abhijit Pal.
On the confession of Raju Das, the other three accused
were apprehended outside village Tungrauli. The shawl
that Bablu wore was said to be that of deceased Abhijit
Pal. A mobile phone Nokia model 1616 IMEI, without
SIM, Number 353406043775891 was recovered from
the possession of the accused Kundan Das. Fard (Ext.
Ka.2) was prepared on the spot after arresting the
accused. The Fard was signed on the spot by the
witnesses present and accused.
49. Constable Sohan Singh (PW3) has stated in
his cross-examination that after arresting all the
accused, they were taken to Chakrata, where the arrest
memo was prepared and he had signed it at Chakrata.
50. The case of the prosecution is that despite
efforts, member of the public could not be found to
testify at the time of recovery. Constable Gopal (PW7)
stated in his cross-examination that the police had
secured independent witnesses on the spot. Amitabh
Das (PW10) has stated in his cross-examination that no
one from the neighborhood was called to the spot.
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51. According to the prosecution, Fard was not
prepared at the place where Raju Das was
apprehended. After arresting all the accused, Fard was
prepared. In his cross-examination, Joyonta Pal (PW11)
has stated that Fard was prepared at the place where
Raju Das was apprehended. After arresting the
remaining accused, Fard was not prepared.
52. In invoking the provisions of Section 27 of
the Indian Evidence Act, the Court should be very
vigilant to ensure the credibility of the evidence. In the
present matter, the contradictory statements of the
prosecution's witnesses regarding the recoveries do not
inspire confidence.
53. According to the report of Forensic Science
Laboratory, no blood was found on the seat cover of
Bolero Jeep.
54. According to the prosecution, the appellants-
accused were arrested on 11.11.2014 and recoveries
were made on the same day, whereas it has been
deposed by Mukesh Thaledi (PW5) in his examination-
in-chief that appellants-accused were arrested on
10.11.2014 and recoveries were made on the same
day, which makes the entire case of prosecution
doubtful.
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55. In Bhagwan Singh and Others vs. State
of M.P., (2002) 4 SCC 85, the Hon'ble Supreme Court
observed that the golden thread which runs through the
web of administration of justice in criminal case is that
if two views are possible on the evidence adduced in
the case, one pointing to the guilt of the accused and
the other of his innocence, the view which is favorable
to the accused should be adopted.
56. It is also a basic rule of the criminal
jurisprudence that suspicion, however, strong cannot
take place of proof. In Sujit Biswas vs. State of
Assam, AIR 2013 SC 3817, the Hon'ble Supreme
Court held that suspicion, however grave it may be,
cannot take the place of proof, and there is a large
difference between something that "may be" proved,
and something that "will be proved". In a criminal trial,
suspicion no matter how strong, cannot and must not
be permitted to take place of proof. This is for the
reason that the mental distance between "may be" and
"must be" is quite large, and divides vague conjectures
from sure conclusions. In a criminal case, the Court has
a duty to ensure that mere conjectures or suspicion do
not take the place of legal proof. The large distance
between "may be true" and "must be true", must be
26
covered by way of clear, cogent and unimpeachable
evidence produced by the prosecution, before an
accused is condemned as a convict, and the basic and
golden rule must be applied.
57. The post-mortem of the dead body of Abhijit
Pal was conducted by Dr. Bhagendra Singh Rawat
(PW6) on 01.11.2014 and the post-mortem of the dead
body of Moumita Das was conducted by Dr. Anand
Singh Rana (PW13) on 15.11.2014 with the help of
Dr. B.S. Rawat. Although, injury marks were found and
Hyoid bone of the deceased Moumita Das was found
fractured and their death was ruled as homicidal, the
prosecution has to prove that the death of the deceased
was caused by the appellants and in all human
probabilities, the act must have been done by the
appellants only. Even grave suspicion cannot take place
of proof.
58. In light of above discussion, it is clear that
statements of the prosecution witnesses do not inspire
confidence to convict the appellants as creating serious
doubt.
59. Thus, taking into consideration the nature
and quality of over all evidence, oral and documentary,
on record, we find it difficult to uphold the conviction of
27
the appellants under Sections 302, 201, 392, 411 and
Section 120B IPC and in the facts and circumstances of
the case, they deserve to be acquitted of these
charges. All the appeals are allowed.
60. Accordingly, the judgment of conviction and
sentence passed against the appellants in Sessions Trial
No. 39 of 2015, "State of Uttarakhand vs. Raju Das and
three Others" is set aside. Appellants are acquitted of
the charges under Sections 302, 201, 392, 411 and
Section 120B IPC. Appellants be released from judicial
custody immediately, if not required for any other
offence.
61. The reference is answered accordingly.
62. Each of the appellants is directed to make
compliance of Section 437 A of the Code of Criminal
Procedure, 1973 within four weeks from today by
appearing before the concerned Trial Court and execute
a personal bond and furnish two reliable sureties in the
like amount to the satisfaction of the Trial Court.
63. A copy of this judgment be sent to the Trial
Court and concerned Superintendent of Jail.
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64. A copy of this judgment be placed in the
connected appeals.
____________________
RAVINDRA MAITHANI, J.
___________________
ALOK KUMAR VERMA, J.
Dt: 13.05.2024.
Shiksha/Pant
