BHARAT SINGH vs STATE OF UTTARAKHAND AND ANOTHER

HIGH COURT OF UTTARAKHARD AT NAINITAL

Criminal Appeal No.340 of 2016
Bharat Singh ………Appellant


Versus

State of Uttarakhard & another ……Respondents


Presence:

Mr. T.A. Khan, learned Senior Advocate assisted by Ms. Jasmeen Wahid,
Advocate holding brief of Mr. Aditya Kumar Arya, Advocate for the
appellant.
Mr. V.S. Rawat, learned AGA for the State.

Judgment reserved on 10.09.2026
Judgment delivered on 16.10.2026


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

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



The appeal is preferred by the appellant against
the judgment and order dated 12.07.2016, passed by learned
Additional Sessions Judge, Ramnagar, District Nainital in
Session Trial No.68 of 2013, State vs. Bharat Singh whereby
the appellant has been convicted under Section 302 of IPC
and sentenced with an imprisonment for life and a fine of
Rs.10,000/- with default stipulation of six months additional
simple imprisonment.

2. In brief, the prosecution case is that on
15.02.2013, a written first information report was filed by the
informant Govind Singh alleging therein that in the evening
of 13.02.2013 his younger son Ajay Pal Singh went out with
Bharat Singh. When he did not return till 14.02.2013 he
went out to search for him. He also visited Bharat Singh’s
house but he was not there. He further alleged that today
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morning Bharat Singh came to his house and asked whether
Ajay Pal had not returned as of now. He also suggested that
they should search for him together, thereafter Bharat Singh
took him to the orc of Mr. Prem Chardra Bajaad and he
pointed towards the dead body of Ajay Pal. Before the
informant could asked any question to him he ran away.
Thereafter, the informant informed about the alleged incident
to his relatives and fellow villagers. His nephew Sanjay
Singh Patwal reached there and informed him that yesterday
Jeevan Singh in his shop told him that Bharat Singh had told
him that Ajay Pal had died. The informant further alleged that
he was quite sure that Bharat Singh had killed his son and
had thrown body in orchard.


3. On the basis of above facts, a chick FIR was
lodged by the informant (PW1) on 15:45 hrs. in Police
Station Ramnagar. The FIR was registered as FIR
No.36/2013. The investigation ensued after the registration
of the crime, the Investigation Officer drawn inquest report
of the deceased and sent the dead body of the deceased for
postmortem.

4. The Investigation Officer conducted the
investigation of the case and after doing necessary formalities
and arresting the appellant submitted a charge-sheet against
the appellant in the court.

5. Thereafter, learned Chief Judicial Magistrate after
compliance of Sections 207 and 208 IPC committed the case
to Sessions Court which framed charges under Section 302 of
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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 Singh (the complainant), PW2 Satyapal Singh,
PW3 Sanjay Singh Patwal, PW4 Jeevan Singh, PW5 Dr.
Rajesh Pandey, PW6 S.I. Pratap Singh Negi, PW7 Head
Constable Mohd. Aaqil, PW8 S.I. Ravindra Kumar.

7. After prosecution evidence, the statement of
appellant was recorded under Section 313 Cr.P.C., in which,
he denied the evidence of prosecution and stated that he has
been falsely implicated.

8. After hearing the public prosecutor as well as the
appellant accused, the trial court found the charges proved
against the appellant beyond all reasonable doubts and
convicted and sentenced him, accordingly as stated above.

9. We have heard learned counsels for the parties and
perused the entire oral and documentary evidence available
on record carefully.

10. During trial, PW1 reiterated the facts of
prosecution story and supported it. He on oath deposed that
he was acquainted with Bharat Singh and the deceased was
his son. He further stated that in the evening of 13.02.2013
his younger son Ajay Pal Singh went out with Bharat Singh.
When he did not return till 14.02.2013 he went out to search
for him. He also visited Bharat Singh’s house but he was not
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there. He further stated that on 15.02.2013 Bharat Singh
came to his house and asked whether Ajay Pal had not
returned as of now. He also suggested that they should
search for him together, thereafter Bharat Singh took him to
the orchard of Mr. Prem Chardra Bajaad and he pointed
towards the dead body of Ajay Pal. Before he could ask any
question to him, he ran away. Thereafter, the informant
informed about the alleged incident to his relatives and
fellow villagers. He further stated that the Pradhan of the
village telephonically informed the police about the said
incident. On his cross-examination, he stated that he did not
inform the police about the missing of his son on 13.02.2013
as his son had a habit of absconding from the house.

11. PW2 Satyapal Singh in his examination-in-chief
admitted that he wrote the FIR on the dictation of PW1. He
verified his signature in the FIR (Ex-ka-1).

12. PW3 Sanjay Singh Patwal in his examination-in-
chief stated that he was well acquainted with accused Bharat
Singh. On 14.02.2013, he was informed by Jeevan Singh
that Ajay Pal has died. Jeewan Singh also told him that this
was told to him by appellant Bharat Singh but he did not took
it seriously. He further stated that when the information of
recovery of dead body of the deceased reached him on
15.02.2013, he immediately went to the spot; he was
signatory of recovery of plain and blood stained soil. He
verified his signatures on the recovery memo (Ex-ka-3).

13. PW4- Jeevan Singh on oath stated that he was
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well acquainted with the deceased as well as the accused. He
further stated that on 14.02.2013 at around 10-11 a.m. Bharat
Singh told him that Ajay Pal had died after falling because of
excessive drunk. He informed about the said incident to
Sanjay Singh Patwal. In his cross examination, he stated that
he informed about the said conversation only to Sanjay Singh
Patwal and not to other family members of the deceased.

14. PW5-Dr. Rajesh Pandey on oath deposed that on
15.02.2013, he was posted as a Medical Officer at the
Hospital in Ramnagar. He stated that the dead body of the
deceased was brought before him at around 2:10 p.m. After
examination of the dead body, he opined that the death might
have occurred 24-48 hours before postmortem examination.
He further opined that on examination, it transpires that the
death might have been caused because of strangulation. On
his cross examination, he stated that the injuries might have
occurred because of a fall on a hard surface. He proved
postmortem report as Ex-ka-4.

15. PW6- SI Pratap Singh Negi in his examination-in-
chief deposed that he was informed by Diwan Singh Kataria
about the alleged incident telephonically on 15.02.2013.
After getting the information, he rushed towards the alleged
place of incident and saw that deceased’s father and other
villagers had already assembled over that place. He
thereafter sent the body for postmortem and prepared site
plan and collected sample of blood stained soil and plain soil,
blood stained green polythene, black slippers; prepared
memo and sealed it in plastic containers. He further deposed
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that he interrogated accused Bharat Singh on 16.02.2013 and
inquired about the clothes he was wearing at the time of
alleged incident. He thereafter stated that he recovered blood
stained clothes which were worn by the accused on the
alleged date of incident on his pointing out from the cowshed
close to the appellant’s residence.

16. PW7 Head Constable Mohd. Aquil is a formal
witness. He in his examination-in-chief deposed that he
wrote the chick FIR and identified his handwriting and
signature in the FIR, G.D. Ex-Ka-11 and Ex-ka-12.

17. PW8 S.I. Ravindra Kumar is the Investigating
Officer. He in his examination-in-chief deposed that he
prepared the arrest memo, disclosure statement and the
recovery memo. He thereafter submitted the charge-sheet to
the trial court. He in his cross examination admitted that in
spite of being the Investigating Officer he did not record the
statements of Diwan Singh Kataria. He further stated that he
arrested the accused person near Pirumdara Tiraha on
16.02.2013 at around 6:10 a.m.
18. The learned trial court after appreciation of the
evidence and material available on record convicted the
appellant as stated above. Now the appellant is before this
Court in appeal assailing the aforesaid conviction and
sentence.
19. Heard learned counsel for the parties and perused
the record.

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20. It is vehemently argued by learned counsel for the
appellant that learned court below committed grave
irregularity by convicting the accused appellant 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 appellant. He further
stated that the entire case of the prosecution is based upon
circumstantial evidence and the medical examination also
does not give any definite cause of death. He further argued
that the FIR was lodged after a delay of 2 days. He also
states that the only witnesses produced by the prosecution
were relative of the father of the deceased, therefore, their
testimony is highly doubtful. None of the prosecution
witnesses had seen the incident; doctor PW-5 deposed in
cross-examination that injuries found on the person of
deceased might come by fall on a hard surface.

21. Per contra, learned State Counsel supported the
case of prosecution and the impugned judgment contending
that the evidence of the victim and other prosecution
witnesses remained consistent and unshaken throughout the
trial and no material contradiction could be elicited even on
lengthy cross examination of prosecution witnesses.

22. Before appreciating the arguments of the learned
counsel for the appellant to bring the case of the prosecution
within the fold of Section 302 of IPC, the said provision is
required to be considered and thereafter on the basis of
evidence it can be inferred as to whether on the basis of facts
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and evidence on record the ingredients to bring it within the
fold of Section 300 of IPC are satisfied or not. Section 300
of IPC is herein quoted below:-
“ 300. Murder — Except in the cases hereinafter excepted,
culpable homicide is murder, if the act by which the death is
caused is done with the intention of causing death, or—
Secondly — If it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause the
death of the person to whom the harm is caused, or—
Thirdly — If it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to cause
death, or —
Fourthly — If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause
death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid.”
23. The bare reading of the aforementioned provision
clearly demonstrate that the prosecution has to prove the
causal link between the act of the accused and the death of
the deceased. To prove so the prosecution has to prove the
actus reus coupled with any of the four mens rea provided in
Section 300 of IPC. As the case is based upon
circumstantial evidence and no direct evidence, therefore,
the prosecution has to prove the act done by the appellant
which resulted in the death of the deceased by means of
circumstantial evidence.

24. As the- entire case is based upon last seen theory
and circumstantial evidence and it is a settled proposition of
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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 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 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.”

25. My aforesaid view is based upon the golden
principles enumerated in the landmark case of Sharad Birdhi
Chard Sarda vs. State of Maharashtra, 1984 AIR 1622. Here
in the case in hard, it is very clear from the perusal of the
record that the conviction is based entirely upon
circumstantial evidence and no prosecution witness has
himself seen the appellant killing the deceased nor has any
person seen the accused-appellant 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
deceased was last seen with the accused appellant on
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13.02.2013 in the evening whereas the dead body was
recovered on 15.02.2013 in the morning. The gap is too
high to rule out the interference of third party. Moreover,
the postmortem report states that the death occurred due to
asphyxia due to strangulation along with facial and chest
injuries. But the postmortem report does not show any
fracture of hyoid bone or laryngeal fractures. Moreover, the
Medical Officer PW-5 himself in his cross examination
opined that the injuries could have been caused because of
fall on a hard surface. Therefore, it would not be safe to
come to a conclusion that the appellant who was last seen
with the deceased on 13.02.2013 in the evening is guilty of
committing murder of Ajay Pal Singh.

26. In case of circumstantial evidence, the court has
to examine the whole evidence in its entirety and ensures
that the only inference that can be drawn from the evidence
is towards 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 was filed by the father of the
deceased after a gap of 2 days. No missing response
was lodged.
(ii) There is no motive assigned to the
appellant.
(iii) The conduct of the appellant himself
informing Jeevan Singh that Ajay Pal has died after
falling raises doubt over the prosecution story.
(iv) The expert medical opinion does not
give a definite cause of death.
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(v) There is no proximity in the last seen
theory and the recovery of dead body.
(vi) Source of human blood found on the
clothes of appellant could not be ascertained and
linked with appellant or deceased.


27. It seems that last seen theory 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 appellant. If more than one inference can be drawn,
then the appellant 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
appellant.

28. The upshot of the aforesaid discussions is that the
appeal deserves to be allowed. Accordingly, present appeal
is allowed and the impugned judgment and order dated
12.07.2016 passed by the learned Additional Sessions Judge,
Ramnagar, Nainital, is hereby set-aside. He is acquitted of
charges under Section 302 of IPC. Appellant is in jail. He
shall be released forthwith, if not required in any other case.

29. Let Trial Court Record be immediately sent back
to the trial court for compliance.



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


PN
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