Navisher And Others ... vs State Of Uttarakhand
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Uttarakhand High Court

Navisher And Others ... vs State Of Uttarakhand on 18 November, 2025

Author: Ravindra Maithani

Bench: Ravindra Maithani

     HIGH COURT OF UTTARAKHAND AT NAINITAL

                   Criminal Appeal No. 383 of 2018

Navisher and others                           ........Appellants/Applicants
                                     Vs.
State of Uttarakhand                                   ........... Respondent


Present : Ms. Prabha Naithani, Advocate for the appellants/applicants.
          Ms. Manisha Rana Singh, Deputy Advocate General for the State.



                              JUDGMENT

Coram :       Hon'ble Ravindra Maithani. J.
              Hon'ble Alok Mahra, J.


Hon'ble Ravindra Maithani, J. (Oral)

Instant appeal is preferred against the judgment and

order dated 27.10.2018, passed in Sessions Trial No. 72 of 2015,

State Vs. Navisher and others, by the court of Sessions Judge,

Rudrapur, District Udham Singh Nagar. By it, the appellants have

been convicted under Section 302 IPC read with Section 34 IPC and

sentenced for rigorous life imprisonment with a fine of Rs.20,000/-,

and in default of payment of fine, to undergo further imprisonment

for a period of six months.

2. Heard learned counsel for the parties and perused the

record.

3. According to the FIR, on 06.01.2015, PW1 Sabir Khan,

the informant was in his brother-in-law Ikram's house, who is

deceased in the instant case. At about 09:00 p.m. on the date of

incident, the deceased Ikram talked over telephone to some person

and then told to PW1 Sabir Khan that the appellant Navisher had

called him for some urgent work. Ikram did not return thereafter in

the night. Next day in the morning, at about 05:00 - 05:30, when

PW1 Sabir Khan, PW5 Shakhawat and others went to the house of

the appellant Navisher in search of Ikram, they saw appellants

Navisher, Vashiruddin and others assaulting the deceased Ikram in

their courtyard. Spotting the witnesses the appellants and others

left the scene of occurrence. The deceased Ikram was bleeding from

his head; there were multiple injuries in his body; he was taken to

hospital where he died subsequently on 08.01.2015. Based on the

FIR (Ex.A-1), Chik FIR (Ex.A-22) was recorded and a Case Crime

No.32 of 2015, under Section 302 IPC was lodged at Police Station,

Pulbhatta, District Udham Singh Nagar. The extract of G.D. is

Ex.A-23. The inquest of the deceased was conducted on

08.01.2015. There were multiple injuries found on the person of the

deceased. The inquest report is Ex.A-2. Thereafter the dead body of

Ikram was sent for postmortem; it was conducted on 08.01.2015.

Multiple injuries were found on the person of the deceased. They

are as follows:-

1. Lacerated wound size 4 x 1 cm x scalp deep present over the right frontal region of scalp, 3 cm right from middline, 6 cm above from the right eye, margin abraded.

2. Brownish abrasion 5 x 1.5 cm present over the right parietal region of scalp just behind the injury no.1.

3. Brownish abrasion ms. 1.5 x 1 cm, just lateral to the right eye brow.

4. Brownish abrasion 1 x 0.5 cm over the front of upper eye lf. nose.

5. Brownish abrasion 2 x 1 cm present over the neck, in the middle on lower side.

6. Brownish contusion present over the right arm including right shoulder region, in area of about 30 x 8 cm.

7. Brownish contused swelling 20 x 8 cm present over frontal aspect of right thigh.

8. Brownish abrasion 2 x 1 cm present over the lateral aspect middle of right leg.

9. Brownish contusion 3 x 4 cm present over the front of left side of chest 1 cm above the left nipple and Brownish contusion 3 x 2 cm present over front right side of chest 3 cm above the right nipple.

10. Dry blood stain present over both nostril.

11. Brownish abrasion 0.5 x 0.5 cm present over the index and right finger to middle portion.

4. According to the doctor, who conducted postmortem, the

cause of death is 'Cranio Cerebral damage, consequent upon blunt

force impact to head'. All the injuries were ante-mortem. According

to the prosecution, the blood stained with plain soil was also taken

into custody, of which, recovery memo Ex.A-8 was prepared and at

the instance of the appellants Navisher and Vashiruddin two lathies

were recovered from the house of the appellant Navisher, of which a

recovery memo Ex.A-16 was also prepared. The Investigating Officer

prepared site plan of the place of incident as Ex.A-9 as well as the

place from where the lathies and mobile phone were recovered as

Ex.A-18. The articles recovered were sent for Forensic Science

Laboratory for Examination. The Report is Ex.A-21. Blood was not

detected on any of the articles recovered by the police. After

investigation, charge-sheet Ex.A-20 was submitted against three

persons namely, appellants Navisher, Vashiruddin and Jamil

Ahmad. On 05.05.2015, the charge under Section 302/34 IPC were

framed against the appellants Navisher, Vashiruddin and Jamil

Ahmad.

5. In order to prove its case, prosecution examined as many

as 11 witnesses as PW1 Sabir Khan, PW2 Mumtaz, PW3 Smt.

Mehnaz, PW4 Km. Muskan, PW5 Shakhawat, PW6 SI G.R. Gola,

PW7 Dr. Lalit Mohan Dakholia, PW8 SI Rajendra Singh Dangi, PW9

SI Diwan Singh, PW10 SI Bhagat Singh Bisht and PW11 Constable

Jagdish Singh.

6. After the prosecution examination, the appellants were

examined under Section 313 of the Code of Criminal Procedure,

1973 ("the Code"). According to the appellants, they have been

falsely implicated. After hearing the parties, by the impugned

judgment and order, the appellants have been convicted and

sentenced, as stated hereinbefore. Aggrieved by it, the appellants

preferred the instant appeal.

7. During the pendency of the appeal, the State has filed an

affidavit on 12.09.2025, according to which, the appellant Jamil

Ahmad died in custody. The appeal against him is abated.

8. Learned counsel for the appellants submits that the

prosecution has not been able to prove its case beyond reasonable

doubt; there is no motive; the statements of alleged eye-witness is

not reliable; there is no recovery which is established by the

prosecution; the place of incident is not established; the statements

of the witnesses are contradictory. Learned counsel would refer to

the statement of PW1 Sabir Khan, where he has stated that he had

come all alone in the evening to meet his brother-in-law, the

deceased Ikram. But, in cross-examination, he tells that on the

date of incident, he had visited the deceased Ikram along with his

wife and daughter. Reference has also been made to the statement

of PW3 Smt. Mehnaz, wherein in page 2, first paragraph, she tells

that PW2 Sabir Khan had visited their house in the morning on 06-

01-15, all alone.

9. Learned State Counsel submits that the prosecution has

been able to prove its case beyond reasonable doubt; there is direct

evidence against PW1 Sabir Khan and PW5 Shakhawat, which is

supported by the statement of PW3 Smt. Mehnaz and PW4 Km.

Muskan. She submits that the ocular testimony is supported by the

medical evidence; PW10 Investigation Officer, SI Bhagat Singh

Bisht, who has recovered the weapons of offence and mobile at the

instance of the appellants Navisher and Vashiruddin has proved it.

He has also stated about the disclosure statement, based on which,

the recovery was made.

10. Before the arguments are appreciated, it would be apt to

examine the evidence adduced by the prosecution.

11. According to PW1 Sabir Khan, on 06.01.2015, in the

evening at 04:00, he visited the deceased Ikram, who happens to be

his brother-in-law. On the same date, at about 9:10 p.m., the

deceased Ikram received a phone and, thereafter he revealed it to

this witness that the appellant Navisher had called him for payment

and he proceeded to the house of the appellant Navisher. He did

not return till late night. On 07.01.2015, at about 04:00 in the

morning, when the deceased did not return, his daughter PW4 Km.

Muskan called Tatir Ahmad and PW 5 Shakhawat. Thereafter,

according to PW1 Sabir Khan, he along with PW5 Shakhawat and

Tatir Ahmad reached in the house of the appellant Navisher at

about 5 - 5:30 holding torch. As soon as they reached near the

house of the appellant Navisher, they saw that the appellants and

one Jamil Ahmad and others were assaulting the deceased with

lathies. Spotting this witness and others, the appellants and

others ran away from the place of incident. They could not be

caught. The deceased Ikram had serious injuries, he was taken

to hospital and finally he died on 08.01.2015. This witness PW1

Sabir Khan has also stated that he was the witness of the

inquest. According to him, he had dictated the first information

report to one Mumtaz Khan and signed it. According to PW1

Sabir Khan, on 09.01.2015, he visited the place of incident along

with the police when police took into custody the plain and blood

stained soil and prepared site plan, etc. This witness has also

stated that police on 15.01.2015 had also recovered two dandas

from the rooftop of the appellant Navisher. A recovery memo was

prepared, of which, he was also a witness. In the last sentence of

his examination-in-chief, PW1 Sabir Khan states that there was

no electricity in the house of the appellant Navisher.

12. PW2 Mumtaz is scriber of the FIR; he has stated about it.

13. PW3 Smt. Mehnaz is wife of the deceased Ikram. She has

also corroborated the statement of PW1 Sabir Khan in examination-

in-chief, though according to her, after receiving the phone call, the

deceased had told that Navisher had called him as some timber was

to be taken out. Thereafter, according to PW3, the deceased did not

return and in the morning PW1 Sabir Khan and others visited the

house of the appellant Navisher, where they saw the appellants and

others assaulting the deceased.

14. PW4 Km. Muskan is the daughter of PW3 Smt. Mehnaz

and the deceased. She has also stated that on 06.01.2015, when

the deceased had received a telephone call he left the home saying

that some accounting of timber is to be done with the appellant

Navisher. When the deceased did not return, in the morning she

went to call PW5 Shakhawat. She had also stated as to what PW1

Sabir Khan and PW5 Shakhawat had seen in the house of the

appellant Navisher in the morning of 07.01.2015.

15. PW5 Shakhawat is another witness, who has supported

the statement of PW1 Sabir Khan. According to him, he was called

by the daughter of the deceased in the morning of 07.01.2015.

Thereafter, they proceeded to the house of the appellant Navisher,

where in the torch light they saw that the appellants and others

were assaulting the deceased Ikram. These are the witness of facts.

16. PW6 SI G.R. Gola is the person, who has prepared

inquest of the deceased. He has proved the Inquest Report Ex.A-2

and other documents prepared by him at that time.

17. PW7 Dr. Lalit Mohan Dakholia is the person, who has

conducted postmortem on 08.01.2015. He has proved the

postmortem report Ex.A-7. The injuries found by him on the person

of the deceased have already been mentioned in a preceding

paragraph.

18. PW8 SI Rajendra Singh Dangi is the first Investigating

Officer. According to him, on 09.01.2015, he had taken the blood

stained and plain soil from the place of incident and prepared the

recovery memo Ex. A-8. He has also proved the site plan Ex. A-9.

19. PW9 SI Diwan Singh had accompanied the Investigating

Officer. He has stated about the proceedings, which he had joined.

He has not, as such proved any document.

20. PW10 SI Bhagat Singh Bisht has conducted investigation

of the case. He has arrested the appellants. According to him, the

appellants had confessed their guilt and at the instance of the

appellant Navisher and Vashiruddin recovered two dandas from the

rooftop of the appellant Navisher. He has proved the recovery memo

Ex.A-16. He has also proved the other articles and has stated that

those articles were sent for forensic examination. He also prepared

site plan Ex. A-18 of the place of incident. Finally, he submitted

charge-sheet.

21. A few facts are admitted. The deceased Ikram was a

Contractor. He was dealing in timber. The appellants Navisher and

Vashiruddin were the labourers. This has been admitted at Bar and

it has been so stated by the witnesses. According to the prosecution

on 06.01.2015, in the night at about 09:00, the deceased received a

phone call from the appellant Navisher. Why did the appellant

Navisher telephonically call the deceased? It may be noted that the

call record, as such has not been proved by the prosecution to

establish that any call was ever received by the deceased Ikram at

about 09:00 p.m. on 06.01.2015.

22. It is further the case of the prosecution that after

receiving the call, the deceased left for the house of Navisher giving

the reasons. According to PW1 Sabir Khan, at that time the

deceased had told him that the appellant Navisher called him for

paying money. The question is, why should a labourer pay money

to the Contractor at that hour of the day? What was the money due

to the appellant Navisher? PW3 Smt. Mehnaz, the wife of the

deceased tells that in order to take out some timbers, the appellant

Navisher had called the deceased. He did tell that the appellant

Navisher had called him for making payment. PW4 Km. Muskan is

a young girl of 13 years. According to her, the deceased had left his

home saying that some accounting is to be done with the appellant

Navisher. PW1 Sabir Khan, PW3 Smt. Mehnaz and PW4 Km.

Muskan, all have given different reasons for the deceased Ikram

leaving his house. They are not consistent, as to why the deceased

was called by the appellant Navisher. Moreover, a question

remains, as to why a labourer would call his Contractor at 09:00

p.m.? This is also important because according to PW5 Shakhawat,

the house of the appellant Navisher was at the distance of 50 steps

from the house of the deceased Ikram. Although according to PW3

Smt. Mehnaz, the house of the deceased Navisher was at a distance

of 500 Meters from the house of the deceased Ikram. They were

residing in the same village in the near vicinity.

23. The prosecution has produced three witnesses naming

them eye-witnesses. Their testimony falls for scrutiny. Whether

those statements would prove the prosecution case and how it has

to be appreciated?

24. In the case of K. Ponnuswamy Vs. State of T.N., (2001)6

SCC, 674, the Hon'ble Supreme Court interpreted the word, 'who'

and also interpreted the provisions of Section 114 of the Indian

Evidence Act, 1872 and para 27 observed as follows:-

"27. ...................................................................................... ...................................................................................................... There can be no dispute with the legal proposition. However, let us see what is meant by "proved". Section 3 of the Evidence Act defines "proved" as follows:

"3. 'Proved'.--A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

Further, Section 114 of the Evidence Act reads as follows:

"114. Court may presume existence of certain facts.--The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."

Thus the fact is said to be proved when after considering the matters before it, the court believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. In coming to its belief the court may presume existence of any fact which it thinks likely to have happened having regard to the natural course of event, human conduct and public and private business, in relation to the facts of each case."

25. According to the prosecution case, at about 09:00 in the

evening of 06.01.2015, the deceased Ikram left his house after

receiving a call from the appellant Navisher. As stated, the reasons

for calling the deceased Ikram is not consistent. As also, as to why

a labourer would call to his Contractor at that hour of the day?

Moreover, it is also an admitted fact that the house of the appellant

Navisher was in the same village in the near vicinity. If the

deceased did not return, why PW1 Sabir Khan, PW3 Smt. Mehnaz

did not visit the house of the appellant Navisher on the same night?

According to them, they waited till 04:00 in the morning, why? PW1

Sabir Khan as well as PW3 Smt. Mehnaz in their statements have

stated that in the night they did not search for the deceased.

26. According to PW1 Sabir Khan and PW3 Smt. Mehnaz,

when the deceased did not return till morning, PW4 Km. Muskan

was sent to the house of PW5 Shakhawat to call him and,

thereafter, they visited the house of the appellant Navisher in the

morning at about 05:00. Here also, the prosecution evidences is not

consistent. In page 2, last but second paragraph, PW3 Smt. Mehnaz

has stated, when she sent her daughter PW4 Km. Muskan to call

PW5 Shakhawat, it was already morning, it was not night. It was

the month of January. PW3 Smt. Mehnaz says, "mtkyk gks x;k Fkk". It

means, that PW4 Km. Muskan had gone to call PW5 Shakhawat

when it was not dark. If it was not dark, where is the question of

witnessing the incident with torch? It is not disputed that at 05:00

in the morning in the month of January, it was dark outside. It is

so stated by PW1 Sabir Khan in his cross-examination. This also

creates doubt in the testimony of the witnesses.

27. What was the source of light? According to the witnesses

PW1 Sabir Khan and PW5 Shakhawat, they had witnessed the

incident in the light of torch. Where is that torch? It is not

produced. The Investigating Officer has stated categorically that he

did not take the torch into custody. It is a very important piece of

evidence. In the house of the appellant Navisher, according to PW1

Sabir Khan himself, there was no electricity connection. The site

plan does not show any source of light. Although, as stated,

according to PW3 Smt. Mehnaz, she had sent PW4 Km. Muskan to

call PW5 Shakhawat when it was not dark outside. It was day light.

These are material contradictions. It doubts the prosecution case.

28. The prosecution has not been able to establish the source

of light when allegedly the incident was witnessed at about 05:00 in

the morning of 07.01.2015. If there was no light, how could the

witnesses identify the appellants and others? PW1 Sabir Khan has

stated that as soon as they saw the appellants and others, the

appellants and others ran away. According to PW1 Sabir Khan, no

conversation took place and they did not hear any conversation

between the appellants, whereas according to PW5 Shakhawat, as

soon as they reached at the place of incident, Jamil Ahmad was

exhorting that, "ekjks lkys dks] cM+k fglkc djus okyk vk;k gSA"

29. What is the truth? On a material point both these

witnesses PW1 Sabir Khan and PW5 Shakhawat are not consistent.

These omission/contradictions are not immaterial; they are on

material point, as to what had happened at the place of incident.

This is so under the situation of this case when the source of light

is not established, when the conduct of the witnesses in not

searching the deceased in the night is not inspiring confidence.

30. PW5 Shakhawat, in page no.3, para 3, also tells that

when they took the deceased to the hospital, his clothes were also

blood stained. Those blood stained clothes are not produced before

the court. According to the FIR and statements of the witnesses,

the deceased was taken in an Innova car, whereas in his statement

in page 3, third paragraph, PW5 Shakhawat tells that they took the

deceased in a Bolero car.

31. In fact, PW1 Sabir Khan is also a chance witness.

According to him, on 06.01.2015 he had been in the house of

Ikram. According to him, he reached in the evening of 06.01.2015

at about 04:00 p.m. and he was all alone, whereas in his statement

at page 4, second paragraph, he tells that he had visited the house

of the deceased Ikram along with his wife and daughter. PW3 Smt.

Mehnaz tells in page 2, first paragraph, second line that PW1 Sabir

Khan had reached her house on 06.01.2015 in the morning.

According to PW1 Sabir Khan, he had reached to the house of the

deceased Akram on 06.01.2015 at 04:00 p.m. in the evening. These

contradictions also gain importance under the facts and

circumstances of the case. They doubt the presence of PW1 Sabir

Khan at the place of incident.

32. The Forensic Science Laboratory Report does not support

the prosecution case. Blood was not detected either on the weapon

of offence or any other article. The place of incident, as such has

not been established.

33. The statements of PW1 Sabir Khan and PW5 Shakhawat

are not inspiring confidence. Their statements are not supported by

the Forensic Science Laboratory Report. PW1 Sabir Khan, PW3

Smt. Mehnaz and PW4 Km. Muskan are also reliable when they say

that in the midnight, on a telephone call of the appellant, Navisher,

the deceased Ikram had left his home. No call record has been

proved.

34. In view of the above, this Court is of the view that the

prosecution, in fact, has not been able to prove its case beyond

reasonable doubt. Accordingly, the appeal preferred by the

appellants Navisher and Vashiruddin deserve to be allowed.

35. The instant criminal appeal is allowed.

36. The appellants Navisher and Vashiruddin are acquitted of

the charges under Section 302 read with Section 34 IPC. They are

in custody. Let they be set free forthwith, if not warranted in any

other case. They shall furnish personal bond and two sureties each

of the like amount, by each one of them, to the satisfaction of the

court concerned under Section 437A of the Code within a period of

one month from today.

37. Let a copy of this judgment along with the trial court

record be sent to the court concerned.

                          (Alok Mahra, J.)                               (Ravindra Maithani, J.)
                                                            18.11.2025
Sanjay



SANJAY

DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH

2.5.4.20=e50e50b49596520698eff87e0a08bbd504686d f4d1afc60f54a287831dec46fe, postalCode=263001,

KANOJIA st=UTTARAKHAND, serialNumber=26EEB7122ED0DD23233A255DD8EC450 A84B515A087CAEFD1B3179A7DEAE40699, cn=SANJAY KANOJIA Date: 2025.11.20 18:53:09 +05'30'