Uttarakhand High Court

Am Ar Singh vs St At E Of Ut T Arakhand on 25 March, 2025

2025:UHC:2154-DB

Reserved on: 17.03.2025

Delivered on : 25 .03.2025

I N TH E H I GH COURT OF UTTARAKH AN D
AT N AI N I TAL
H ON 'BLE M R. M AN OJ KUM AR TI W ARI , J
H ON 'BLE M R. ASH I SH N AI TH AN I , J

CRI M I N AL APPEAL N o. 1 4 0 of 2 0 1 4

Am ar Singh ...Appellant
Versus
St at e of Ut t arakhand ...Respondent

Wit h

CRI M I N AL APPEAL N o. 1 4 1 of 2 0 1 4

Bhaj an Singh alias Bhaj ani ...Appellant
Versus
St at e of Ut t arakhand ...Respondent

Counsel for appellant : Mr. Navnish Negi, Advocat e.

Counsel for St at e : Mr. Am it Bhat t , G.A.

JUD GM EN T : ( pe r H ON 'BLE M R. ASH I SH N AI TH AN I , J. )
This criminal appeal arises from the judgment and
order dated 4th April 2014, passed by the learned Sessions Judge,
Haridwar, in Sessions Trial No. 213 of 2008. The appellants, Amar
Singh and Bhajan Singh, were convicted under Sections 302, read
with 34, and 201, read with 34, of the Indian Penal Code (IPC).
They were sentenced to life imprisonment under Section 302/34
IPC and to seven years of rigorous imprisonment under Section
201/34 IPC, along with fines.
2. The appellants have challenged the judgment on the
grounds of misappreciation of evidence, contradictions in the
prosecution's case, procedural lapses, and the prosecution's
failure to establish their guilt beyond a reasonable doubt.

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3. Heard Mr. Navnish Negi, learned counsel for the
appellant and Mr. Amit Bhatt, learned G.A. for the State of
Uttarakhand and perused the records.
4. The case pertains to the alleged murder of Govind
Singh, who was working as a bus conductor on UA-12-1482 at the
Karanpryag depot. His whereabouts had reportedly been
unknown since 26.12.2007. His brother Mohan Singh (informant)
lodged a missing report at P.S. Haridwar on 04.01.2008, stating
that despite extensive searches, Govind Singh could not be found.
5. On 08.01.2008, Mohan Singh, along with his relatives,
visited the Chandighat police outpost, where they were shown a
photograph of a deceased person who had been found near the
Chandighat cremation ground on 26.12.2007. The informant and
his relatives identified the body as that of Govind Singh, citing
distinct physical features, including a cut mark on the chin.
6. Following this identification, Mohan Singh submitted
a written complaint, in which it was alleged that Govind Singh was
last seen in the company of Amar Singh and Bhajan Singh on the
night of 26.12.2007 and that the two had been involved in a
scuffle with him before allegedly taking him towards the
Chandighat cremation ground in a three-wheeler.
7. A post-mortem examination was conducted on
31.12.2007, determining the cause of death to be asphyxia due to
drowning, with no external injuries observed. Furthermore,
despite statements suggesting that the deceased had been
drinking on the night of 26.12.2007, no traces of alcohol were
found in his stomach. Based on the findings of the investigation, a
charge sheet was filed against Amar Singh and Bhajan Singh under
Sections 302, 201, and 34 IPC, and the matter was committed to
trial before the Sessions Court, Haridwar.
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8. During the trial, witness testimonies indicated that on
the evening of 26.12.2007, Govind Singh, Amar Singh, and Bhajan
Singh were allegedly seen together at Rishikul bus ground, where
they were drinking alcohol inside the bus.
9. Witness Rajendra Singh (PW-4), a bus driver, stated
that he had seen the three individuals together before leaving to
watch a movie. However, upon returning later that night, he
found that the bus was no longer at its original location and that
neither the deceased nor the two appellants were present.
10. Statements were also recorded regarding an incident
on 28.12.2007, when PW-15 Gopal Ji alias Mota, a resident near
Chandighat cremation ground, claimed to have seen two
individuals bring a body to the cremation ground at around 10:30
PM. It was stated that these individuals misrepresented the body
as that of a five-year-old child, allegedly intending to immerse it in
the river. However, upon closer examination the following day, it
was observed that the body was of an adult male, following which
the authorities were informed, and a formal recovery process was
initiated.
11. After evaluating the evidence on record, the Sessions
Court, Haridwar, found that the circumstantial evidence
established an unbroken chain of events leading to the alleged
offence and held that the charges had been proved.
12. Consequently, Amar Singh and Bhajan Singh were
convicted under Sections 302/34 and 201/34 IPC and sentenced
to life imprisonment along with a fine of ₹5,000 each under
Section 302/34 IPC, with an additional one month of simple
imprisonment in case of default of acceptable payment.
13. Additionally, for the offence under Section 201/34
IPC, the appellants were sentenced to seven years of rigorous
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imprisonment along with a fine of ₹5,000 each, with an additional
one month of simple imprisonment in case of default of fine
payment. Both sentences were directed to run concurrently.
14. The appellants have challenged their conviction on
multiple grounds, contending that the trial court's findings are
erroneous, speculative, and based on circumstantial evidence that
fails to establish their guilt beyond reasonable doubt.
15. It is argued that the State's case rests entirely on
indirect evidence, with no direct witness to the alleged crime, and
that the trial court failed to assess the inconsistencies and
contradictions in the testimonies of key witnesses. The appellants
submit that the evidence on record does not form an unbroken
chain linking them to the alleged offence and that the conclusions
drawn by the trial court are based on conjectures rather than
concrete proof.
16. It is submitted that the missing report dated
04.01.2008, lodged by Mohan Singh(the informant), does not
name the appellants or express any suspicion against them. It was
only after the alleged identification of the body on 08.01.2008
that the informant filed a written complaint implicating the
appellants.
17. The appellants argue that this delay in naming them
raises doubts about the credibility of the allegations, as the first
informant had no direct knowledge of the incident.
18. Furthermore, it is contended that the entire case
against them was built retrospectively, which calls into question
the reliability of the accusations.
19. The appellants challenge the last-seen theory, arguing
that it is unsupported and unreliable. Witness PW-4 Rajendra
Singh, who allegedly saw the deceased with the appellants on
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26.12.2007, did not support the State's version in his cross-
examination. He did not confirm any quarrel between the
appellants and Govind Singh, nor did he claim to have seen any
forceful act against the deceased.
20. Additionally, PW-3 Manmohan Singh was declared
hostile, thereby further weakening the claim that the deceased
was last seen alive in the company of the appellants before his
death. It is argued that since there is no direct evidence of the
alleged assault or forced drowning, the trial court's reliance on
circumstantial evidence was misplaced.
21. The appellants further contend that the identification
of the deceased's body is questionable, as significant
contradictions exist between the informant's description and the
post-mortem report. The missing report mentions a cut mark on
the chin of Govind Singh, but PW-11 Dr. R.S. Chauhan, who
conducted the post-mortem, recorded no such injury.
22. The appellants argue that this discrepancy casts doubt
on whether the body recovered on 26.12.2007 was, in fact, that
of Govind Singh. Additionally, the identification was based solely
on a photograph, and no DNA or forensic confirmation was
conducted to verify the claim scientifically. The appellants submit
that the trial court ignored these inconsistencies and wrongly
assumed that the identification was conclusive.
23. The appellants also challenge the testimony of PW-15
Gopal Ji alias Mota, who claimed to have seen two individuals
bring a body to the Chandighat cremation ground on 28.12.2007.
It is argued that PW-15's testimony is unreliable, as he identified
the appellants in court only after six years, despite never
participating in a Test Identification Parade (TIP) during the
investigation.
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24. The appellants contend that a delayed in-court
identification is inherently weak, especially when the witness had
no prior acquaintance with the accused. Further, it is pointed out
that PW-15 initially stated that the body was described as that of
a five-year-old child but later claimed that it was an adult male,
which raises doubts about the credibility of his statement.
25. The appellants argue that the medical evidence does
not support the State's case. The post-mortem report recorded
drowning as the cause of death but did not establish whether the
deceased was forcibly drowned or had drowned accidentally.
26. Moreover, despite claims that the deceased had been
drinking alcohol with the appellants, no traces of alcohol were
found in his stomach, contradicting the narrative of events. The
appellants submit that the trial court wrongly inferred intentional
homicide without medical or forensic proof to support such a
finding.
27. The appellants have also highlighted serious
investigative lapses. They argue that the alleged three-wheeler
used in the incident has not been properly identified, as the
number provided in the case does not match any valid vehicle
registration. Additionally, no recovery was made of Govind
Singh's clothes or personal belongings, and certain key witnesses
were not examined, which, according to the appellants, raises
doubts about the fairness of the investigation.
28. Lastly, the appellants contend that all incriminating
circumstances were not put to them during their examination
under Section 313 Cr.P.C., thereby depriving them of a fair
opportunity to explain their position. They submit that the trial
court's findings are based on assumptions rather than direct

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evidence and that the benefit of the doubt should have been
extended to them.
29. Per contra, the respondent contends that the
conviction of the appellants is based on a complete chain of
circumstantial evidence duly established through credible witness
testimonies and documentary evidence.
30. It is argued that the trial court correctly appreciated
the sequence of events, which, when considered collectively,
leads to the inescapable conclusion that the appellants are guilty
of the alleged offences.
31. The appellants' claim that the case rests on conjecture
and surmise is unfounded, as the State successfully established
each link in the evidentiary chain, proving the appellants'
culpability beyond reasonable doubt.
32. The last-seen evidence, as presented through PW-4
Rajendra Singh, forms a crucial link in the State's case. PW-4
categorically stated that on 26.12.2007, he saw Govind Singh,
Amar Singh, and Bhajan Singh inside bus UA-12-1482 at Rishikul
bus ground, where they were allegedly drinking and involved in a
heated altercation.
33. While the appellants argue that PW-4 did not
explicitly confirm a physical assault, the fact remains that the
deceased was last seen alive in their company. The appellants
have failed to provide any explanation as to what transpired
thereafter.
34. The respondent submits that Section 106 of the
Evidence Act places the burden on the accused to explain the
circumstances leading to the deceased's disappearance and
subsequent death, which they have failed to do.

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35. Further, PW-15 Gopal Ji alias Mota, an independent
witness, provided critical evidence linking the appellants to the
disposal of the deceased's body. He stated that on 28.12.2007 at
approximately 10:30 PM, he saw three individuals bring a body to
the Chandighat cremation ground in a three-wheeler.
36. Two of these individuals were subsequently identified
in court as the appellants based on the electric light available at
the scene. The claim that PW-15's testimony is unreliable due to
the absence of a Test Identification Parade (TIP) is misleading, as
PW-15 consistently maintained his version and identified the
appellants in open court, which holds evidentiary value.
37. The respondent further argues that the appellants
have not demonstrated any enmity or motive for PW-15 to
implicate them, reinforcing the credibility of his testimony falsely.
38. The appellants' argument regarding the identification
of the deceased's body is also without merit. PW-1 Mohan Singh
and other relatives of the deceased identified the body based on
distinct physical features, which PW-6 Gopal Singh Bisht, PW-7
Surendra Singh, PW-8 Narayan Singh, and PW-9 Dayal Singh
sufficiently corroborated.
39. While the appellants rely on a discrepancy concerning
a cut mark on the chin, the respondent submits that such minor
inconsistencies do not affect the broader identification process,
mainly when multiple witnesses, including the deceased's family
members, confirm the identity of the body.
40. Moreover, the appellants have not provided any
plausible alternative explanation regarding the identity of the
deceased, thereby failing to rebut the State's evidence.
41. Regarding the medical evidence, the post-mortem
report categorically establishes asphyxia due to drowning as the
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cause of death. The appellants argue that the absence of external
injuries contradicts the theory of intentional homicide.
42. However, the respondent submits that drowning does
not necessarily require external injuries, and the lack of such
marks does not rule out homicidal drowning.
43. Additionally, while no alcohol was found in the
deceased's stomach, this does not negate the fact that he was last
seen drinking with the appellants, as per PW-4's testimony. The
appellant's reliance on the absence of forensic confirmation of
intoxication is an attempt to divert from the strong circumstantial
chain linking them to the offence.
44. The respondent further argues that the appellants'
claim that there is no evidence of transportation of the
deceased's body in a three-wheeler is misleading. While the exact
registration number of the vehicle may not have been
conclusively established, PW-15's testimony, coupled with the
recovery of the body exactly where he stated it had been left,
corroborates the State's version of events.
45. The argument that the number mentioned in the case
pertains to a scooter rather than a three-wheeler is an
inconsequential technicality, which does not weaken the overall
evidentiary framework.
46. It is also submitted that the investigation was
conducted fairly and correctly, and the alleged lapses pointed out
by the appellants do not undermine the core findings.
47. The claim that Govind Singh's clothes and personal
belongings were not recovered is immaterial, as the absence of
such articles does not negate the substantive evidence
establishing the sequence of events. Furthermore, the appellant's
contention regarding the non-examination of particular witnesses
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is without substance, as the State presented all material
witnesses necessary to prove the case, including those who saw
the deceased with the appellants and those who identified the
body.
48. Finally, the respondent submits that the appellants
were given full opportunity to present their defence under
Section 313 Cr.P.C., and the claim that certain incriminating
circumstances were not put to them is unfounded.
49. The appellants failed to provide any reasonable
explanation for their presence with the deceased on 26.12.2007,
nor did they account for the subsequent events leading to the
discovery of his body. The trial court correctly held that the State
had established an unbroken chain of circumstances proving the
appellants' guilt beyond reasonable doubt, justifying their
conviction under Sections 302/34 and 201/34 IPC.
50. Upon a meticulous examination of the prosecution's
case. This Court observes that It is a well-established principle of
law that courts must focus on the quality of evidence rather than
the quantity when determining the proof or disproof of a fact.
51. In the case at hand, the prosecution has relied
entirely on circumstantial evidence without conclusively
establishing a complete chain of events leading to the accused's
guilt beyond a reasonable doubt. Various inconsistencies in
witness testimonies, medical reports, and investigative lapses
further cast serious doubts on the veracity of the allegations
against the appellants.
52. The case is built solely on circumstantial evidence,
and as per records, it is based on an incomplete chain of events.
In cases relying solely on circumstantial evidence, the burden is
on the prosecution to establish an unbroken and conclusive chain
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of events that inevitably point to the guilt of the accused. As laid
down by the Supreme Court in Sharad Birdhichand Sarda v. State
of Maharashtra (AIR 1984 SC 1622), circumstantial evidence
must be strong enough to exclude every hypothesis other than
that of the guilt of the accused.
53. The present case, however, suffers from several gaps
in the evidentiary chain:
(a) Unreliable "Last Seen" Witnesses: The prosecution
relied on the testimonies of PW-3 Manmohan Singh
and PW-4 Rajendra Singh to establish that the
deceased was last seen with the accused. However,
these witnesses failed to support the prosecution's
version. PW-3 turned hostile, and PW-4 stated in his
cross-examination that he did not know of any
quarrel or intoxication involving the deceased and
the accused. Their testimonies thus lose credibility
and cannot be relied upon as conclusive proof of the
accused's involvement.
(b) Hearsay Evidence Cannot Replace Direct Proof: The
testimony of PW-1 Mohan Singh, the complainant, is
based on hearsay and not on direct observation. His
knowledge of the events leading to his brother's
death is entirely derived from what other witnesses
allegedly told him. However, hearsay evidence is
inadmissible as substantive proof, as reaffirmed by
the Supreme Court in the State of Haryana v.
Surender (AIR 2007 SC 2312). Without direct
evidence linking the accused to the crime, the
prosecution's case becomes weak, and

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(c) No Direct Proof of the Act of Drowning: The
prosecution has failed to produce any evidence--
either documentary or testimonials showing that the
appellants forcefully took the deceased to the
riverbank and drowned him. There is no forensic
evidence, CCTV footage, or independent eyewitness
testimony that can establish this crucial link.
54. The cumulative effect of these factors results in a
broken chain of circumstantial evidence that is insufficient to
hold the accused guilty.
55. The Hon'ble Supreme Court, in a series of decisions,
has consistently held that when a case rests upon circumstantial
evidence, such evidence must satisfy the following tests:
(i) the circumstances from which an inference of guilt is
sought to be drawn must be cogently and firmly
established;
(ii) those circumstances should be of definite tendency
unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a
chain so entirely that there is no escape from the
conclusion that within all human probability, the
crime was committed by the accused and none else;
and
(iv) The circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the
guilt of the accused, and such evidence should not
only be consistent with the guilt of the accused but
should be inconsistent with his innocence.

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56. There are serious procedural lapses regarding the
identification of the accused. In cases where the accused are
identified based on eyewitness accounts, the Test Identification
Parade (TIP) serves as a crucial procedural safeguard to prevent
mistaken identity. The absence of a TIP significantly weakens the
prosecution's case.
57. In Dana Yadav v. State of Bihar (2002) 7 SCC 295),
the Supreme Court held that in-court identification, without prior
identification through a TIP, must be treated with extreme
caution.
58. In the present case, PW-15 (Gopalji @ Mota) claimed
to have seen three persons carrying a body near the riverbank but
did not know them personally. He identified the accused for the
first time in court years after the alleged incident. Given the
human tendency to forget faces over time, such a delayed
identification carries little evidentiary value.
59. The police did not arrange for a TIP, where PW-15
could have identified the accused under neutral conditions.
Without such a procedure, his courtroom identification cannot be
treated as reliable proof.
60. The failure to follow essential procedural safeguards
further dilutes the prosecution's case and introduces reasonable
doubt regarding the identification of the accused.
61. The Identity of the Deceased itself is doubtful. A
fundamental flaw in the prosecution's case is the discrepancy
between the post-mortem report and the method used to
identify the deceased:
(a) Contradiction Between the Photograph and the
Post-Mortem Report: The prosecution relied on a
photograph to confirm that the body found in the
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river was that of Govind Singh. However, while the
picture allegedly shows injuries on the body, the
post-mortem report (Exhibit A-4) explicitly states
that there were no external injuries. This
inconsistency raises a serious question: Was the
body that underwent post-mortem the same body
that was identified in the photograph? And
(b) Possibility of Mistaken Identification: Since no DNA
test or scientific verification was conducted to
confirm the deceased's identity, it remains uncertain
whether the body recovered was indeed that of
Govind Singh. This discrepancy in the identity of the
deceased creates a substantial loophole in the
prosecution's case.
62. In Vadivelu Thevar vs The State of Madras (1957)
SCR 981 para 12-13], the Hon'ble Supreme Court observed that
when the witness is wholly reliable, the Court should not have any
difficulty in as much as conviction or acquittal could be based on
the testimony of such single witness. Equally, if the Court finds
that the witness is wholly unreliable, neither conviction nor
acquittal can be based on the testimony of such a witness. It is
only in the third category of witness that the Court has to be
circumspect and has to look for corroboration in material
particulars by reliable testimony, direct or circumstantial.
63. There are contradictions in the medical evidence that
make the prosecution's theory unconvincing. The post-mortem
report concluded that the cause of death was asphyxia due to
drowning. However, critical aspects of the report contradict the
prosecution's allegations:

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(1) Absence of External Injuries: The medical report
found no external injuries, undermining the claim
that the deceased was physically assaulted before
being drowned and
(2) No Evidence of Alcohol Consumption. The
prosecution argued that the deceased was
intoxicated before being murdered, but the post-
mortem examination found no traces of alcohol in
his body. This contradiction weakens the theory that
an altercation took place due to drunken behaviour.
64. There may be a possibility of Accidental Drowning.
The presence of sand particles in the trachea and larynx suggests
that the drowning may have been accidental rather than
homicidal. These medical contradictions cast serious doubt on
whether a murder occurred at all.
65. The prosecution has failed to present a consistent
timeline of events, which is crucial in cases relying on
circumstantial evidence.
66. There are Conflicting Testimonies regarding the Date
of the Incident. The prosecution claims that the murder took
place on 26th December 2007, but PW-15's testimony describes
an event on 28th December 2007. The body was discovered only
on 29th December 2007, further complicating the timeline.
67. There is an absence of clear Forensic Evidence. No
forensic analysis was conducted to determine how long the body
had been in the river, making it difficult to correlate the time of
death with the alleged incident.
68. The investigation, in this case, was marred by multiple
procedural failures, which further weakened the prosecution's
claims:
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(i) Non-Recovery of the Alleged Three-Wheeler: The
prosecution claimed that a three-wheeler was used
to transport the deceased before being drowned,
but this vehicle was never recovered or examined for
forensic evidence.
(ii) Failure to Record Statements of Crucial Witnesses:
The driver of the alleged three-wheeler, who could
have provided vital testimony, was never examined,
and
(iii) Lack of Scientific Evidence: No fingerprints,
blood samples, or other forensic materials linking the
accused to the crime were recovered.
69. In the present case, the chain of circumstantial
evidence is incomplete. The "last seen" theory, which is the
cornerstone of the prosecution's case, is not established beyond
reasonable doubt, as witnesses PW-3 and PW-4 failed to support
it.
70. Additionally, PW-1's testimony is hearsay, making it
inadmissible as substantive proof. Further, the identification of
the accused is highly questionable, as PW-15, the alleged
eyewitness, failed to identify the accused during the investigation.
No Test Identification Parade (TIP) was conducted, the medical
evidence directly contradicts the prosecution's theory, and the
failure to establish the time and place of death is another
significant flaw. The serious lapses in the investigation further
weaken the case.
71. In light of the above findings, this Court holds that the
prosecution has failed to establish the appellants' guilt beyond
reasonable doubt. The inconsistencies in witness testimonies,
contradictions in medical findings, unreliable identification, gaps
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in the timeline, and investigative failures all cumulatively render
the case too weak to sustain a conviction.
72. Accordingly, this Court sets aside the conviction and
sentence imposed by the learned Sessions Judge, Haridwar, vide
judgment dated 4th April 2014. The appellants, Amar Singh and
Bhajan Singh are acquitted of all charges under Sections 302/34
and 201/34 IPC. They shall be released forthwith unless required
in any other case.

M AN OJ KUM AR TI W ARI , J.

ASH I SH N AI TH AN I , J.

SB Digitally signed by SHIKSHA BINJOLA

SHIKSHA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c2 4b5aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND,

BINJOLA serialNumber=FD80A2D028949381C52796A54 2D7FF0A9BED00E67B5283D205F18FE29BDF5D D9, cn=SHIKSHA BINJOLA Date: 2025.03.25 13:06:45 +05'30'