Uttarakhand High Court
Mukesh Thapaliyal --Applicant/ vs State Of Uttarakhand on 2 August, 2025
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
THE HON'BLE CHIEF JUSTICE MR. G. NARENDAR
AND
THE HON'BLE JUSTICE MR. SUBHASH UPADHYAY
Bail Application (IA No.1 of 2025)
IN
Criminal Jail Appeal No.14 of 2018
2nd August, 2025
Mukesh Thapaliyal --Applicant/appellant
Versus
State of Uttarakhand --Respondent
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Presence:-
Mr. Amar Murti Shukla, learned Amicus Curiae for the
applicant/appellant
Mr. J. S. Virk, learned Deputy Advocate General along with Mr.
Rakesh Joshi, learned Brief Holder for the State.
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G. NARENDAR, C.J.
ORDER
Heard learned counsel for the
applicant/appellant and learned Deputy Advocate
General for the State.
2. This is a case as bizarre as it could get. The
Trial Court has placed reliance on the ruling of Hon'ble
Apex Court reported in AIR 1984 SC 1622 rendered in
the case of "Sharad Birdhichand Sarda vs. State of
Maharashtra" and the guidelines settled by the
Hon'ble Apex Court in the said case have also been
extracted. These guidelines are to be followed by the
court in a case of circumstantial evidence.
3. Admittedly, this is a case of circumstantial
evidence. The motive imputed to the accused is that he
had an affair with one Shobha and as a result of the
affair and intimacy, a child was born and the said child
was said to have been murdered and buried in the
jungle; that, the deceased came to know about this fact
and started spreading this information in the village;
that, angered by the same the accused is said to have
assaulted the deceased with an iron rod and set fire to
the house. In the complaint by the daughter-in-law, it
is also alleged that there have been theft of articles.
The material placed by the prosecution is a recovery
memo (Exhibit K-20) under which an iron rod is said to
have been recovered. Unfortunately, for the
prosecution, the Postmortem Report (Exhibit K-6) has
affirmed that the death is on account of burn injuries
and no injury, that can be attributed to an assault by an
iron rod, has been found on the body. That apart, the
witnesses examined are PW1 Smt. Kamana Devi, the
daughter-in-law, PW2 Smt. Lajjo Devi, who has
deposed that she witnessed the house on fire and has
stated nothing further, PW3 Constable Clerk Virendra
Tomar, PW4 Vivek Thapliyal, who is the son of
deceased, PW5 Ramesh Lal, PW6 Smt. Vandana
Godiyal, PW7 Mr. Brahmi Dutt, PW8 Mr. Durlabh Singh,
PW9 Dr. V. Bhardwaj, PW10 Inspector Kunwar Singh
Bisht and PW11 Inspector Darwan Singh Panwar.
4. It is pertinent to note that none of them are
eyewitnesses nor have they spoken the accused setting
fire to the house or about the alleged affair and birth
and murder of the new-born child of Shobha. More
particularly, it is pertinent to note that the said Shobha,
with whom the accused is said to have had an affair,
has not been examined, leaving this Court wondering
as whether the said "Shobha" is a person or a ghost.
4. The M.O.s and exhibits also do not point
towards the accused. The Hon'ble Apex Court in the
ruling, referred to above, has in para-22 has settled the
law in a case of circumstantial evidence for guilt to be
fully established, the following are the criteria which
required to be established by the prosecution and the
same are as follows:-
"(i) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established. The circumstances
concerned 'must' or 'should' and not 'may be'
established.
(ii) the facts so established should be
consistent only with the hypothesis of the guilt
of the accused, that 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; and
(v) there must be a chain of evidence so
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."
5. That apart, the trial court has strangely relied
upon an alleged dying declaration. Neither the dying
declaration nor the statement of the deceased is placed
on record. That apart, it is no more res integra, that
motive is required to be proved in a case of
circumstantial evidence.
6. It is even more perturbing to note that the
incident alleged against the accused is of 2009 and as
per the deposition of PW1 Smt. Kamana Devi and other
witnesses, the accused is said to have left the village
and returned in 2015. Despite the passage of long time,
the trial court has blindly accepted the version of the
witnesses without there being an iota of material to
establish the same. Neither the body of the alleged
baby, said to have been murdered & killed, has been
exhumed and found to be true nor has the alleged
mother been examined in the matter to demonstrate
the said fact. If the prosecution believed the version to
be true, then it is puzzling as to why a case of murder
was not registered. Mere rumors or mere suspicion
cannot take the place of proof. The Hon'ble Apex Court
in the case of "Ravishankar Tandon vs. State of
Chhattisgarh" reported in (2024) SCC Online SC
526 has held as under:-
"10. It is settled law that suspicion, however, strong it
may be, cannot take the place of proof beyond
reasonable doubt. An accused cannot be convicted on
the ground of suspicion, no matter how strong it is. An
accused is presumed to be innocent unless proved
guilty beyond a reasonable doubt."
7. In that view, prima facie we are of the
considered opinion that the applicant/appellant has
made out a prima facie case and the trial court, in our
prima facie opinion, though has relied upon the ruling
of the Hon'ble Apex Court, has failed to apply the
guidelines fairly to the facts of the case.
8. In that view of the matter, the bail application
(IA No.1 of 2025) is allowed. Accordingly, the sentence
imposed under the judgment and order dated
26.02.2018 in Sessions Trial No.06 of 2017 by the court
of Sessions Judge, Rudraprayag hereby stands
suspended. The appellant/applicant is directed to be
released on bail forthwith, if not required in any other
case, subject to appellant furnishing a bond for a sum
of ₹20,000/- and furnishing one surety for a like sum to
the satisfaction of the concerned Magistrate.
9. List for hearing in due course.
(G. NARENDAR, C.J.)
(SUBHASH UPADHYAY, J.)
Dated: 02.08.2025
R/SS
