Suresh Chandra Tiwari & Anr. v. State of Uttarakhand

From the Judgment and Order dated 24.05.2012 of the High Court of Uttarakhand at Nainital in CRA No. 82 of 2003 Appearances for Parties Ms. Nidhi, Syed Saifullah, Advs. for the Appellants. Ms. Anubha Dhulia, Ms. Suveni Bhagat, Advs. for the Respondent. Suresh Chandra Tiwari & Anr. v. State of Uttarakhand 1236 [2024] 11 S.C.R. Judgment / Order of the Supreme Court Judgment Manoj Misra, J.

This criminal appeal impugns the judgment and order of the High Court of Uttarakhand at Nainital1 dated 24.5.2012 passed in Criminal Appeal No. 82 of 2003, whereby the appeal of the appellants against the judgment and order of the Sessions Judge, Pithoragarh passed in Session Trial No. 36 of 1997 was partly allowed and the conviction of the appellants was altered from Section 302/34 of the Indian Penal Code, 18602 to Section 304 Part I of IPC, and the sentence, inter alia, was reduced from imprisonment for life to 7 years R.I.3 FACTUAL MATRIX

On 3.2.1997, at about 10 AM, PW-7, a cousin of the deceased, lodged a first information report4 (Exb. Ka-2) at PS5 Lohaghat, District Pithoragarh, inter alia, alleging that on 3.2.1997, at about 9.30 AM, he came to know that dead body of the deceased was lying in the verandah of Mohan Singh’s shop. Pursuant to the aforesaid report, the police proceeded to the spot, carried out inquest and prepared an inquest report (Exb. Ka-8). It also lifted blood-stained and plain earth/ floor from the spot and prepared a seizure memo (Exb. Ka-4) thereof. Belongings of the deceased lying near the spot were also seized and a seizure memo (Exb. Ka-5) was prepared. Besides that, a black polythene bag containing goat meat was also recovered from near the spot and another seizure memo (Exb. Ka 3) was prepared.

Autopsy of the cadaver was conducted by PW-1 on 3.2.1997 at about 2.45 PM. Autopsy report (Exb. Ka-1) indicated that the deceased died due to shock because of head injury. The estimated time of death, 1 2 3 4 5 The High Court IPC Rigorous Imprisonment FIR Police Station Digital Supreme Court Reports [2024] 11 S.C.R. 1237 as per autopsy report, was about a day before autopsy. Ante-mortem injuries noticed at the time of autopsy were: "1.

2. Incised wound on head on occipital region 4 x 1 cm, margins of wound clear cut and bleeding from the wound, direction of the wound was oblique. Incised wound 2-1/2 x 1 cm x bone deep in occipital area, 6 cm back of the right ear, direction of wound was slanting and clear-cut margins. Bleeding from wound.

3. Contusion on left region of the forehead, 1-1/2 cm x 1 cm, size of wound was unclear. Colour of the wound brown and was above 1 cm from left eyelashes.

Contusion with abrasion, from right shoulder to elbow, in about 15 x 3 cm area, colour of the wound was brown.

Contusion on the joints of both the wrists.

Contusion 4 cm x 1-1/2 cm at right knee, colour of the wound was brown.

Contusion 3 cm x 1 cm on the left knee, colour of the wound was brown.

Contusion 2 cm x 1 cm below 10 cm from the knee on left leg.

Abrasion on the right hip 3 cm x 2 cm.

Abrasion 4 cm x 1-1/2 cm on the left hip. Internal examination disclosed fracture of occipital bone”

4. On 6.2.1997, the police arrested the appellants on suspicion and, according to the police, at the pointing out of the appellants, the place where the deceased was allegedly assaulted was discovered. From that place, allegedly, some bloodstained stones and mud were lifted and a seizure memo (Exb. Ka-6) was prepared.

5. During investigation, inter alia, statements of witnesses who had seen the deceased in the company of the accused on 2.2.1997 during daytime and who had seen the two accused in the company Suresh Chandra Tiwari & Anr. v. State of Uttarakhand 1238 [2024] 11 S.C.R. of each other, late in the night of 2.2.1997, on the pathway, near the place from where the dead body of the deceased was recovered were recorded. Based on that, a charge sheet was submitted against the appellants.

6. After taking cognizance on the charge sheet, the case was committed to the Court of Session. The Sessions Court framed charges against the appellants for offences punishable under Sections 302 /201 read with Section 34 IPC. The accused appellants denied the charges and claimed for trial. PROSECUTION EVIDENCE

7. As the prosecution case rests on circumstantial evidence, to test the correctness of the findings, a scrutiny of the evidence would be apposite. We would, therefore, notice the prosecution evidence in some detail.

8. Prosecution had examined 10 witnesses: (a) PW-1 (the autopsy surgeon) proved the autopsy report. He accepted the possibility of: (a) head injuries being caused by a sharp-edged stone or a sharp-edged weapon; (b) death having occurred a day before i.e., on 2.2.1997 around 5.30 PM. (b) PW-2 – Hayat Singh – He had his shop about 30 yards away from Mohan Singh’s shop (i.e., from where the dead body was recovered on 3.2.1997). According to him, on 2.2.1997, at about 7 PM, while he was sitting at his shop, next to a fire-place to ward off cold winter night, he saw three persons coming from near Mohan Singh’s shop. Those three were Jagdish Punetha and the two accused. Later, that night, between 10 PM and 11 PM, while he was returning to his shop to fetch his purse, in torch light, he saw the two accused going together on the same path towards village Bhumlai. During cross-examination, PW-2 stated (a) that his statement was recorded by the investigating officer on 9.2.1997; (b) prior to that, he made no disclosure about it to any one; (c) that night, it was drizzling; (d) that from his shop, Mohan Singh’s shop is 30-35 yards away and in between his shop and Mohan Singh’s shop there are shrubs, therefore, it is difficult to notice Digital Supreme Court Reports [2024] 11 S.C.R. 1239 as to who is doing what there, from his shop; (e) that in 1995 he had a fight with accused Bhuwan (appellant no.2), which was compromised on payment of Rs.3000 by him.

(c) PW-3 – Mohan Singh (i.e., the shop-owner from whose shop’s verandah, dead body was recovered) stated that on 2.2.1997, at about 6 PM, the two accused had come to his shop at Tolan and had asked for milk. After having milk, they asked each other about the deceased. He heard them saying that the deceased has not been seen. Shortly thereafter, they left his shop with Jagdish Punetha, who was present at the shop from before. Thereafter, PW-3 left his shop. Next day, at about 8.30 AM, when PW-3 returned to his shop, he noticed the dead body of the deceased in the verandah of his shop. During cross-examination, PW-3 stated that on 2.2.1997 it was very cold and there was a slight drizzle. PW-3 stated that he left his shop at about 8 PM on 2.2.1997. (d) PW-4 – Shankar Dutt Upreti – He stated that on 2.2.1997, at about 4.30 PM, while he was coming to Lohaghat, he met accused appellants near Degree College, Gadhera.

Deceased was also with them. Then he clarified that the deceased was with Suresh Chandra Tiwari (i.e., appellant no.1) whereas Bhuwan (appellant no.2) was 50-60 paces behind them. During cross-examination, PW-4 admitted that after the death of the deceased, he had observed rituals as are to be observed when death occurs in the family. However, he denied belonging to the family of the deceased. (e) PW-5- Mahesh Upreti- He stated that the accused appellants are very close friends of each other. In 1996 panchayat elections, the deceased, who is PW-5’s cousin, supported PW- 5’s candidature whereas accused supported a rival candidate, who was nephew of Suresh Chandra (appellant no.1). During elections, Suresh Chandra had extended death-threats. Later, when PW-5 contested election for the office of Pradhan, Suresh Chandra supported a rival candidate. In the first meeting of Gram Panchayat, held on 19.1.1997, Suresh Chandra extended death threat to the deceased.

Suresh Chandra Tiwari & Anr. v. State of Uttarakhand 1240 [2024] 11 S.C.R. During cross-examination, he admitted that he made no report about extension of threats. However, he denied making false accusations because deceased was his cousin. (f) PW-6 – Jahangir- He stated that he is a meat vendor. On 2.2.1997, at about 3.30 PM, Suresh Chandra had purchased a kilogram of meat from his shop. During cross-examination, PW-6 stated that there are 2 or 3 other meat vendors at Lohaghat. (g) PW-7 – Harish Chandra Upreti- He stated that the deceased was his first cousin. On receipt of information about his death, he lodged the report (Exb. Ka-2). (h) PW-8 – Jeevan Chandra Upreti – He stated that on 3.2.1997 upon receiving information about deceased’s death, he went to the spot. That day itself, three seizure memos (Exb. Ka-3, 4 and 5) were prepared, which bear his signature. These memos related to: (i) seizure of a black polythene bag containing meat from open field near the spot; (ii) lifting of blood-stained floor and plain floor from the spot; and (iii) seizure of blood-stained clothes and a pair of Lakhani half-shoes of the deceased from open field near the spot.

He added that on 6.2.1997, at the pointing of the accused, in the presence of Investigating Officer, a blood-stained stone, a blood-stained Patti and plain earth was seized from Madhkhetla and a seizure memo (Exb. Ka-6) was prepared, which bears his signature. He also stated that on 9.2.1997 Hayat Singh handed over his torch to the investigating officer and a seizure memo (Exb. Ka-7) was prepared, which bears his signature. During cross examination, PW-8 stated that he did not accompany the police on those three dates but was present there. In respect of seizure made on 6.2.1997 he stated that he did not go with the police. Rather, he was present at the village. Police had reached between 11 and 12. Accused were arrested in the evening of 6.2.1997. He stated that Madhkhetla is about 2 km away from his village. He, however, denied the suggestion that all papers were prepared at one go, while sitting at the police station, and that nothing was recovered.

Digital Supreme Court Reports [2024] 11 S.C.R. 1241 (i) PW-9- Anand Lal- the first investigating officer - He stated that on 3.2.1997 he was posted as Sub-inspector at PS Lohaghat when the FIR was lodged. He conducted initial stages of investigation such as making GD entry of the report, conducting inquest, sending the dead body for autopsy and lifting of: (i) blood-stained floor/plain floor from the spot; and (ii) clothes, half-shoes of deceased and black polythene bag containing meat from Madhkhetla. He also stated that the seized articles were deposited at the Maalkhana. Thereafter, investigation was carried out by PW-10. He had produced material exhibits during trial. During cross-examination, PW-9 admitted that PW-8 is relative of the deceased. He also admitted that at the time of inquest, Hayat Singh (PW-2) and Mohan Singh (PW-3) were present. He then clarified that distance between Tolan and Madhketla is about 80 yards.

(j) PW-10 – Kundan Singh - the second investigating officer - He stated that he took over investigation of the case on 4.2.1997. On 5.2.1997 he conducted spot inspection of the place where deceased’s belongings such as clothes etc. were found and prepared site plan (Exb. Ka-16). On 5.2.1997 itself, he inspected place from where dead body was recovered and prepared site plan (Exb. Ka-17). On 6.2.1997 he arrested the accused appellants and interrogated them at the police station, of which GD entry no.27 (Exb. Ka-18) was prepared at 19:20 hrs. On the same day, based on disclosure made by the accused, blood-stained stone and plain stone as well as earth were seized, of which seizure memo is Exb. Ka-6. According to him, complicity of the accused in the crime had come to light before 6.2.1997. However, on 6.2.1997, he visited, separately, the house of the two accused and arrested them. On interrogation they accepted their guilt and showed him the place where the deceased was assaulted.

From there, he recovered blood-stained stone, etc. Thereafter, the accused appellants were lodged in the lock-up where their statements were recorded. On 9.2.1997, the statement of Hayat Singh was recorded, and his torch was recovered. Suresh Chandra Tiwari & Anr. v. State of Uttarakhand 1242 [2024] 11 S.C.R. Based on his statement, a site plan (Exb. Ka-20), showing the place from where Hayat Singh saw the accused appellants on 2.2.1997, was prepared. On 9.2.1997, site plan (Exb. Ka- 21) of the place from where stone etc. had been recovered was prepared. He stated that seized case property was sent for forensic examination vide letter (Exb. Ka-22), and on completion of investigation, charge sheet (Exb. Ka-23) was submitted against the accused on 18.3.1997. PW-10 also produced the stones which were recovered from the place pointed out by the accused. During cross-examination, he admitted that in the site plan prepared by him, he had not mentioned the distances. He also admitted that the accused were produced before the remand magistrate on 8.2.1997 and not on 7.2.1997. He, however, denied the suggestion that all investigative steps were bogus and completed while sitting at the police station. STATEMENT UNDER SECTION 313 Cr.PC

9. In his statement under Section 313 of the Code of Criminal Procedure, 1973,6 Suresh Chandra Tiwari (appellant no.1) either denied, or feigned ignorance of, the incriminating circumstances put to him. But admitted (a) that the body of the deceased was found in front of the shop of Mohan Singh; (b) that the autopsy report was prepared by PW-1; (c) that panchayat elections were held in the year 1996; and (d) that he was interrogated on 6.2.1997, though he disclosed nothing incriminating. Notably, the incriminating circumstance qua discovery of blood-stained stone, etc. at his instance on 6.2.1997, vide seizure memo Exb. Ka-6, was not put to him. At last, he stated that owing to enmity he has been falsely implicated.

10. Identical is the statement of Bhuwan Chandra Punetha (appellant no.2). Notably, the incriminating circumstance of recovery of blood- stained stone etc. on 6.2.1997, of which seizure memo Exb. Ka-6 was prepared, was not put to him. 6 CrPC Digital Supreme Court Reports [2024] 11 S.C.R. 1243 TRIAL COURT FINDINGS

Trial court found the following circumstances proved: (i) the deceased was last seen alive in the company of the accused on 2.2.1997 at about 4.30 PM; (ii) the accused, in the night of 2.2.1997, were seen on the pathway going towards Madhkhetla (where articles of the deceased were found) and were also noticed coming back from the same route on which shop of Mohan Singh falls; (iii) Suresh Chandra Tiwari had purchased a kilogram of meat on 2.2.1997 from PW-6, and there was recovery of a polythene bag, containing meat, from the place where other articles of the deceased were found; (iv) the accused were looking for Suresh Upreti (the deceased) in the evening of 2.2.1997, as was evident from their talks, while they were present at the shop of Mohan Singh (PW-3); (v) autopsy report and medical evidence confirmed a homicidal death of the deceased as also the fact that ante-mortem head injury could have been caused by a sharp-edged stone; (vi) blood-stained stone was found at the place pointed out by the accused appellants, and forensic report confirmed presence of human blood on it, therefore, the chain of circumstances stood complete, which pointed that sometime in the night of 2.2.1997 the accused appellants killed the deceased due to past enmity and kept his body in front of Mohan Singh’s shop. Consequently, the trial court convicted the accused-appellants for offences punishable under Sections 302/34 and 201/34 of IPC. HIGH COURT FINDINGS

Aggrieved by the judgment and order of the trial court, the appellants filed an appeal before the High Court. The High Court affirmed the findings of the trial court on strength of the circumstances narrated above and held that recovery of blood-stained stone(s) at the instance of the accused, of which seizure memo (Exb. Ka-6) was prepared, corroborated the prosecution case to dispel any doubt about their guilt. In addition, the High Court relied on the disclosure statement (Exb. Ka-18) which, according to the High Court, led to discovery of the place and consequential recovery. However, the High Court, upon finding that the accused had no previous criminal record and except injuries 1 and 2 none were dangerous to life and those two could be a result of a solitary blow, thought fit to alter the conviction from offence of murder, punishable under Section 302 of IPC, to Suresh Chandra Tiwari & Anr. v. State of Uttarakhand 1244 [2024] 11 S.C.R. offence of culpable homicide not amounting to murder, punishable under Section 304 Part I of IPC, and thereby reduced the sentence, accordingly.

Aggrieved by their conviction, the appellants are before us.

We have heard the learned counsel for the parties and have perused the record. SUBMISSIONS ON BEHALF OF THE APPELLANTS

On behalf of the appellants, it was submitted: (i) The circumstances relied upon were not proved beyond reasonable doubt. (ii) The last seen circumstance narrated by PW-2 is not conclusive as there is no proximity between the place where the deceased was last seen alive in the company of the accused and the place from where the body of the deceased was recovered. Further, the time gap between the time when the deceased was last seen alive with the accused and the time when dead body was recovered is so large that intervening circumstances cannot be ruled out. Moreover, the circumstance of walking side by side on a pathway by itself is not an incriminating circumstance. (iii) The incriminating circumstance of discovery /recovery at the instance of the accused has not been put to either of the two accused while recording their statements under Section 313 of CrPC, therefore the same cannot be relied upon.

Per contra, on behalf of the State, it was submitted that each of the incriminating circumstances were proved beyond doubt; the chain of circumstances stood complete; and it pointed towards the guilt of the appellants by ruling out all hypotheses consistent with their innocence. The matter is concluded by concurrent findings of fact, therefore, there is no merit in the appeal. ANALYSIS

We have considered the rival submissions and have perused the materials on record.

At the outset, we may put on record that if finding of guilt is returned without properly evaluating and testing the evidence by applying the requisite legal principles, it can always be corrected by this Court in exercise of its powers under Article 136 of the Constitution of India. LEGAL PRINCIPLES QUA CIRCUMSTANTIAL EVIDENCE

Before we proceed to test the correctness of the findings returned by the trial court as well as the High Court, we must bear in mind that Suresh Chandra Tiwari & Anr. v. State of Uttarakhand 1246 [2024] 11 S.C.R. the prosecution case rests on evidence circumstantial in nature. As to when on strength of such evidence an accused can be convicted, the legal principles, as propounded in a series of decisions7 of this Court, may be summarized thus: (i) (ii) (iii) the circumstances from which the conclusion of guilt is to be drawn should be fully established; the circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; the circumstances taken cumulatively should form a chain so far complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused; (iv) the circumstances should be consistent only with the hypothesis regarding the guilt of the accused; and (v) they must exclude every possible hypothesis except the one which is sought to be proved.

Adding on to the aforesaid legal principles, in Devi Lal vs. State of Rajasthan,8 a three-judge bench of this Court held that in a case based on circumstantial evidence where two views are possible, one pointing to the guilt and the other to his innocence, the accused is entitled to the benefit of one which is favorable to him.

Besides that, before recording conviction, the court must be satisfied that the accused ‘must be’ and not merely ‘may be’ guilty. In Shivaji Sahabrao Bobade vs. State of Maharashtra,9 this Court, elaborating upon the above principle, observed that the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions. Therefore, even if the prosecution evidence generates strong suspicion against the accused, it cannot be a substitute for proof. 7 8 9