HARISH CHANDRA KUKRETI ALIAS DHARMANAD vs STATE OF UTTARAKHAND

HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No.175 of 2014
Girish Chandra Kukreti ………Appellant


Versus

State of Uttarakhand ……Respondent
with

Criminal Appeal No.165 of 2014

Harish Chandra Kukreti @ Dharmanand ………Appellant

Versus

State of Uttarakhand ……Respondent

Mr. R.P. Nautiyal, learned Senior Advocate assisted by Mr. Pavan Kumar
Nath, Advocate for the appellant.
Mr. J.S. Virk, learned Additional Advocate General for the State.

Judgment reserved on 03.09.2026
Judgment delivered on 15.10.2026


Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Pankaj Purohit, J.

(Per: Hon'ble Pankaj Purohit, J.)


Both the appeals arise out of same judgement and
order dated 31.03.2014 passed by learned sessions judge
Pauri Garhwal in Sessions Trial No. 23 of 2012, State vs
Girish Chandra Kukreti and others therefore they are being
taken up and are being decided by a common order.


2. By the said judgment and order the appellants
have been convicted under Section 302 read with Section 34
of IPC and sentenced to undergo life imprisonment with fine
of Rs.30,000/- each and, in default of fine, they were
sentenced to undergo one year additional imprisonment. They
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have also been convicted under Sections 120-B read with
Section 34 IPC and sentenced to undergo seven years
rigorous imprisonment with fine of Rs.10,000/- each and, in
default of fine, they were sentenced to undergo six month
additional imprisonment. They have further been convicted
under Section 201 read with Section 34 IPC and sentenced to
undergo two years rigorous imprisonment with fine of
Rs.2,000/- each and, in default of fine, they were sentenced to
undergo one month additional imprisonment. All the
sentences were directed to run concurrently.

3. In brief, the prosecution case is that on
01.04.2012, a written report (Ex Ka-2) was filed by the
informant Govind Ram Kukreti(PW1) alleging that on
28.03.2012 at around 7:00 p.m. Girish Chandra Kukreti,
Mohan Dev and Nepali who works with Mohan Dev and
Harish Chandra Kukreti came to his house and took his son,
Umanand with them. His son did not return in the night and
on 29.03.2012 at around 12:30 p.m., he was informed by his
granddaughter Km. Aasha that her father was lying injured
near Do-Paani and blood was oozing out of his head. He
further alleged that he suspected that the above named
persons had murdered his son. Before filing Ex Ka-2, PW1
Govind Ram Kukreti submitted written report Ex Ka-1to
Patwari on 29.03.2012 on which an inquest was drawn and
the body of deceased Umanand was sent for postmortem.
Postmortem was conducted on 30.03.2012 at 1 PM at District
Hospital Kotdwar, District Pauri Garhwal.

4. On the basis of above facts, a Chik FIR was
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lodged in Revenue Police Station on 01.04.2012 at 11 a.m.
under Section 302 of IPC and after investigation, the charge-
sheet under Section 302 read with Section 34, 120-B read
with Section 34 and Section 201 read with Section 34 of IPC
was filed before the Judicial Magistrate.

5. Thereafter, learned Judicial Magistrate committed
the case to Sessions Court which framed charges under
Section 302 read with Section 34, 120-B read with Section 34
and Section 201 read with Section 34 of IPC. The charges
were read over and explained to the accused, who pleaded
not guilty and claimed to be tried.

6. To prove its case, the prosecution has examined
PW1 Govind Ram (the complainant), PW2 Pramila Devi,
PW3 Km. Aasha, PW4 Hafeez, PW5 Dr. Subhash Kumar,
PW6 Rajendra Prasad, PW7 Maheshanand, PW8 Govind
Prasad, PW9 Rajesh Mohan, PW10 Bharat Singh, PW11
Jagdish Prasad, PW12 Guljara Begum, PW13 I.O. Ramesh
Rawat, PW14 Smt. Anita Gunjiyal, Judicial Magistrate,
Kotdwar.

7. After prosecution evidence, the statement of
appellants was recorded under Section 313 Cr.P.C., in which,
they denied the evidence of prosecution and stated that they
were falsely implicated.

8. After hearing the public prosecutor as well as the
appellants accused persons, the trial court found the charges
proved against the appellants beyond all reasonable doubts
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and convicted and sentenced him, accordingly as stated
above.
9. We have heard learnd counsels for the parties and
perused the entire oral and documentary evidence available
on record.

10. To prove its case, the prosecution produced
Ganesh Prasad as PW1 in court who reiterated the facts of
prosecution story and supported it. He on oath deposed that
he was well acquainted with Mohan Dev, Harish Chandra
and Nepali. He further stated that deceased was his son and
they lived together. He told that on the alleged date of
incident, his son had purchased a cow and returned to the
home at around 6:30 p.m. After a while, Raju alias Rajendra
and Girish came there and forcibly administered alcohol to
the deceased. He further stated that the deceased thereafter
went with Rajendra and Girish. He also told that Harish
Chandra, Nepali and Mohan Dev were waiting for them
nearby. He further stated that his son did not return to the
home that night and next day, Guljara Begum who lived near
Jamun Khet told Km. Aasha (PW-3) that his father’s dead
body was lying near Do-Paani. As soon as he was informed
about the said incident by Km. Aasha, he reached the alleged
place of incident and informed Gram Pradhan, Shanti Devi
(DW-1) and Patwari (PW-13) about it. He further stated that
the deceased did not had enmity with any person, but he was
a witness in a criminal proceeding going on against Harish
Chandra.

11. PW2-Pramila Devi, who is the wife of the
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deceased on oath supported the prosecution story and also
reiterated the entire set of facts as deposed by PW1. She
further stated that the deceased’s body was covered only with
a shirt and it transpired that he was attacked with iron rod and
knife.

12. PW3-Km. Aasha, who is the daughter of the
deceased supported the versions of PW1 and PW2. She on
oath deposed that on 29.03.2012, when she was returning
from school, she was informed by Guljara Begum that her
father was lying unconscious near Do-Paani. She reached
home and informed about it to her grandfather and thereafter,
accompanied her grandfather to the alleged place of incident.

13. PW4-Hafeez on oath stated that he was an
agriculturalist and also run a poultry farm. He further stated
that he was acquainted with Rajendra Prasad, Harish Chandra
and Mohan Dev. He further stated that on 28.03.2012, all
these persons came to his shop and purchased chicken from
him. In his cross-examination, he stated that the deceased
lived in his village, but the deceased was not accompanying
the aforesaid persons when they came to his shop.

14. PW5- Dr. Subhash Kumar on oath deposed that on
30.03.2012, he was posted as a Medical Officer at the
Hospital in Kotdwar. He stated that the dead body of the
deceased was brought before him. He told that on
examination, blood clots were found in his brain and it
transpires that the death might have been caused because of
head injury. He opined that the death might have occurred 24
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hours before the dead body reached him. He further opined
that the head injury might have been caused by iron rod and
injury on the body might have been caused by a knife.

15. PW6- Rajendra Prasad in his Examination-in-
Chief deposed that he was well acquainted with Dharmanand
alias Harish, Girish, Nepali and Govind. He further stated
that on 28.03.2012, he went to Pokhal Market where he met
Harish and Girish. Thereafter, they purchased a liquor bottle
and boarded a truck. The truck was being driven by
Dharmanand alias Harish. When they reached Rokhad,
Nepali, Sunil, Bheem, Mohan were present there. They saw
Umanand was coming from another side who was
accompanied by Anju. He further deposed that the time was
around 6:30 p.m. He stated that Umanand told Girish that he
wants to drink liquor and they all accompanied Umanand to
his house where Umanand and Girish had drink and he,
Nepali, Bharat and Umanand went towards river. Thereafter,
he, Bharat and Nepali went to their home and when they
asked Girish to accompany them he stated that he had some
old dues and would come later. Thereafter, he, Mohan Dev,
Harish went to Hafeez’s house to buy chicken. Thereafter, he
and Harish went to Harish’s house where they ate chicken
and got drunk and on 29.03.2012 he got the information that
Umanand is dead. He was declared hostile by the
prosecution as he did not support his statements recorded
under Section 164 Cr.P.C.

16. PW7- Maheshanand is a formal witness and is a
witness of inquest-report Panchayat and also the recovery-
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memo. He on his Examination-in-Chief on oath deposed that
the deceased Umanand was a witness in a criminal case
against Harish. He also stated that Revenue Sub Inspector
recovered knife, blood stained clothes, iron rod from house of
Kailash Chandra who is the father of Harish and Girish. He
further stated that Harish was also threatening to kill him.

17. PW8- Govind Prasad is also a formal witness and
a Panch witness, he was declared hostile by the prosecution.

18. PW9- Rajesh Mohan in his examination-in-chief
deposed that Bharat Mohan was his brother and he was well
acquainted with Mohan Dev, Govind Thapa, Harish, Girish
and Rajendra Prasad. He stated that on the evening of
28.03.2012, we went towards the shop of Govind Ram. He
further stated that his brother Bharat Mohan went to a shop
where his goods came in the truck of Harish. When they
reached near the bridge, Girish, Rajendra and his brother
were sitting in the shop of Govind Ram Kukreti. He further
stated that Bharat, Rajendra, Girish lifted the pipes and the
door and went towards his house. Thereafter, Harish, Mohan
Dev, Rajendra Prasad, Nepali visited the house of Hafeez and
purchased chicken. Thereafter, a reexamination was done of
the aforesaid witness and the prosecution declared him
hostile.
19. PW10- Bharat Singh in his Examination-in-Chief
stated that back in 2009 when he was standing near the
bridge Harish beat him with a stick and thereafter, he lodged
an FIR in which Umanand was the witness. But in cross-
examination, he deposed that a compromise was entered into
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between them in the said case; he further could not tell as to
whether Umanand (deceased) appeared as a witness or not in
the said case.

20. PW11- Jagdish Prasad was also a Panch witness
and he was also declared hostile by the prosecution.

21. PW12- Guljara Begum in her Examination-in-
Chief stated that on 29.03.2012, she saw the deceased person
lying near Do-Paani and thereafter informed his daughter
Km. Aasha.

22. PW13- Ramesh Rawat was posted as Revenue
Sub Inspector at the alleged time of incident. In his
Examination-in-Chief, he deposed that he was the
Investigating Officer and on the complaint of Govind Ram
(PW-1) he went to the alleged place of incident and
conducted Panchnama of the deceased. He also prepared site
map, sent the body for postmortem and thereafter, filed an
FIR. He also prepared the arrest memo of the accused
person. He further deposed that he received information from
some local informant that the weapons of crime had been
hidden in the house of Kailash Chandra. When he reached
there he found one pant, T-shirt, Torn shirt, Towel, Knife,
Iron Rod. He deposed that all these items had blood stains
over them.
23. PW14- Anita Gunjiyal was posted as Judicial
Magistrate, Kotdwar and on 12.04.2012, she recorded the
statements of Rajendra Prasad (PW-6) under Section 164
Cr.P.C.
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24. After the prosecution evidence, DW1 Smt. Shanti
Devi was examined who on her Examination-in-Chief
deposed that she was Gram Pradhan of Chuna Mahera
Village since five years. She further stated that the deceased
was the resident of her village. She further deposed that on
29.03.2012, the father of the deceased informed her about the
incident. She further stated that Kailash Chandra’s house is
situated in the middle of village and if any, uproar or
commotion would have happened there, the entire village
would have heard it.

25. It is vehemently argued by learned counsel for the
appellant that learned court below committed grave
irregularity by convicting the accused appellants as the
prosecution failed to prove its case beyond all reasonable
doubts. He further stated that the prosecution story is highly
improbable and unbelievable as the prosecution failed to
prove any motive against the accused appellants. He very
strongly submitted that no one had seen the alleged incident
and the case is rested on circumstantial evidence; there is no
proximity in the last-seen theory and there are many missing
links in the prosecution case. He further stated that most of
the prosecution witness i.e. PW6, PW8, PW9 and PW10 have
not supported the prosecution story and turned hostile. He
doubted the recovery of blood-stained articles. It was also
his contention that retracted 164 Cr.P.C. statement cannot be
relied upon to convict the appellants.
26. Per contra, learned State Counsel supported the
case of prosecution and the impugned judgment contending
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that the evidence of prosecution witnesses remained
consistent and unshaken throughout the trial and no material
contradiction could be elicited even on lengthy cross
examination of the victim as well as other prosecution
witnesses.

27. Having heard the learned counsel for the parties
and on perusal of the record, this Court is of the considered
opinion that the entire case is based upon last seen theory
and circumstantial evidence and it is a settled proposition of
law that to sustain a conviction on the basis of circumstantial
evidence following conditions must be established:-
“(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 with the hypothesis of guilt and the
accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty;
(iii). The circumstances would 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.”
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28. My aforesaid view is based upon the golden
principles enumerated in the landmark case of Sharad
Birdhi Chand Sarda vs. State of Maharashtra, 1984 AIR
1622 . Here in the case in hand, it is very clear from the
perusal of the record that the conviction is based entirely
upon hearsay evidence and no prosecution witness has
himself seen the accused persons killing the deceased person
nor has any person seen the accused-appellants coming out
of the alleged place of incident. It is a settled principle of
law that last seen theory cannot be the sole basis of
conviction and it only forms a link in the chain of
circumstantial evidence. The death of the deceased was
allegedly occurred in night whereas the body was recovered
in afternoon. The gap is too high to rule out the interference
of third party. Moreover, the postmortem report conducted
on 30.03.2012 at 1:00 p.m. states that the death might have
occurred around 24 hours before postmortem examination
which further creates doubt about the prosecution story and
therefore, it would be dangerous to come to the conclusion
that the appellants-accused who were last seen with the
deceased were guilty of committing murder of Umanand.
The statement of PW6 were recorded u/s 164 Cr.P.C., but the
statements so recorded were not supported by the said
witness in his examination-in-chief. He was also later
declared hostile by the prosecution. It is a settled principle
of law that statements recorded under Section 164 Cr.P.C.
are not substantive piece of evidence and can only be used
for corroboration or contradiction of the witness during trial.
In that view of the matter, the statements recorded under
Section 164 Cr.P.C. are of no help to the prosecution.
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29. In case of circumstantial evidence, the court has
to examine the entire evidence in its entirety and ensures that
the only inference that can be drawn from the evidence is the
guilt of the accused. In the case at hand, there are many
apparent lapses in the investigation and there are also
missing links:-
(i) The FIR (Ex-ka-2) was filed by
PW-1 Govind Ram three days after the incident.
(ii) The Patwari did not mention
Rajendra Prasad i.e. Raju (PW-6) in the charge-
sheet as an accused in spite of the fact that he
was also last seen with the deceased.
(iii) The recovery memo also does not
inspire confidence of this Court as it is not
certain that how the Patwari came to know
about the place of recovery.
(iv) The FSL report does not give any
conclusivity as to the origin of blood and in
certain object the blood has become
disintegrated.
(v) PW4 Hafeez in his Examination-
in-Chief clearly stated that he did not see the
deceased with Harish Chandra and Rajendra
Prasad.
(vi) DW1 Smt. Shanti Devi in her
Examination-in-Chief stated that the house from
where the alleged recovery was made belonged
to her uncle Om Prakash and not Kailash
Chandra who is the father of appellants Girish
Chandra and Harish Chandra.
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(vii) Statements recorded under Section
164 Cr.P.C. were not supported by PW6 during
trial.
(viii) No motive proved against the
appellants to commit the murder of Umanand.


30. The last seen theory seems to have substantially
weighed with the trial court and therefore, it brushed aside
many loop holes in the prosecution case. None of the
circumstances relied upon by the prosecution and accepted
by the trial court can be said to be pointing only to the guilt
of the appellants-accused. If more than one inference can be
drawn, then the accused must get benefit of doubt. In this
view of the matter, it is safe to conclude that the prosecution
failed to prove its case beyond all reasonable doubt against
the appellants.

31. The upshot of the aforesaid discussions is that
both the appeal deserves to be allowed. Accordingly, both
the appeals stand allowed and the impugned judgment and
order dated 31.03.2014 passed by the learned Sessions
Judge, Pauri Garhwal, is hereby set-aside. They are acquitted
of charges under Sections 302 read with Section 34 IPC,
120B read with Section 34 IPC and 201 of IPC. Both the
appellants are on bail, they need not surrender bail bond
discharged.

32. Let Trial Court Record be immediately sent back
to the trial court for consignment.


( Pankaj Purohit, J .) ( Manoj Kumar Tiwari, J .)

Ravi

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