Suresh Chand v. State of Uttarakhand

After hearing the parties, by the impugned judgment and order, the appellant has been convicted and sentenced, as stated hereinbefore. Aggrieved, the appellant has preferred the instant appeal.

6. Heard learned counsel for the parties and perused the record.

7. Learned amicus curiae for the appellant submits that the entire prosecution case is false; the only eyewitness as produced by the prosecution is PW 2 Devi Chand, but his evidence is not reliable at all. He submits that the initial report, which was given by PW 1 Ramichand at Police Chowki Mandlak at 08:15 a.m. has not been proved; it does not name the assailant. It is argued that, according to PW 2 Devi Chand, he had witnessed the incident of the appellant hitting the deceased at about 09:00 p.m. on 09.02.2014 and when he reached the spot subsequently, he found that the deceased was already dead; they remained there whole night. It is argued that in the meanwhile, according to PW 1 Ramichand, he also had reached at the spot. It is argued that had PW 2 Devi Chand witnessed the incident, he would have revealed it to the persons present near the dead body on the intervening night of 09/10.02.2014, but he did not reveal it to anyone; the initial report, which was allegedly given by PW 1 5 Ramichand at Police Chowki Mandlak at 08:15 a.m. on 10.02.2014 does not name the appellant. It is also argued that the entire case is an afterthought; it is fabricated in order to falsely implicate the appellant. He also submits that, in fact, the weapon of offence and other articles did not support the prosecution case; they were sent for forensic examination, but the forensic examination did not support the prosecution case.

8. Learned State Counsel submits that PW 2 Devi Chand is the eyewitness; he has supported the prosecution case. He also submits that the wood was also recovered at the instance of the appellant, though he admits that the forensic science report could not identify the blood on it. According to him, the forensic science report though detected blood on it, but it could not be concluded as to whose blood was it?

9. Before the arguments are appreciated, it is apt to examine as to what the prosecution witnesses have stated.

10. PW 1 Ramichand is the informant. According to him, on

09.02.2014, he had gone in an invitation; in the night, at about 02:00 a.m., Gopi Chand came and informed him that the deceased Manichand is lying in an injured condition at a distance of 15 meters from the house of PW 2 Devi Chand and he is bleeding. At this, according to this witness, he along with Gopi Chand and Bahadur Chand reached at the spot and saw that the deceased was bleeding from his head; he called the villagers and inquired as to how the 6 deceased sustained injuries, but nobody revealed it to him; thereafter, he and other villagers guarded the dead body whole night. According to this witness PW 1 Ramichand, the next morning, he along with Sundar Chand, Bahadur Chand and Heera Chand went to lodge a report at Police Chowki Mandlak. Importantly, according to this witness, at that time, when they reached at the shop of PW 3 Mohan Chand, there he met PW 2 Devi Chand, who revealed it to this witness that on

09.02.2014 at 09:00 p.m., he saw the deceased and the appellant fighting, when the appellant hit the deceased on his head with a wood; thereafter, according to PW 1 Ramichand, he lodged a report at Police Chowki Mandlak, which is Ex. A-1. He has also stated about the inquest and identified his signature on it. According to PW 1 Ramichand, the police also took into custody the blood stained soil and plain soil and also got the wood recovered at the instance of the appellant. He has proved the wood, Ex. 1 and other articles.

11. PW 2 Devi Chand S/o Chandi Chand, according to the prosecution, is an eyewitness of the case. According to him, on

09.02.2014, his son-in-law and the appellant had visited his house; they were in the process of having their dinner at about 9 – 9:30 p.m.; suddenly, the appellant’s mobile phone rang, he picked up the call and went outside the room; the appellant was talking at a distance of about 10-15 mts. from the house of this witness. According to this witness, suddenly the deceased Manichand also reached there and a scuffle ensued between them and in that process, according to PW 2 Devi Chand, the appellant hit the deceased Manichand with a wood and 7 thereafter both ran away; there was dark outside; nothing was visible. According to this witness, thereafter when he came inside the house and was having his meal, a 12-14 years old boy came and informed him that the deceased is lying on the road in a pool of blood; thereafter he along with other persons reached at the spot; they found that the deceased had died; he and other villagers guarded the dead body the whole night; next day, in the shop of PW 3 Mohan Chand, according to this witness, he met PW 1 Ramichand and revealed to him as to what had happened in that night; thereafter a report was given to Police Chowki Mandlak; an inquest report was prepared and the wood was also recovered. This witness has also stated about the arrest memo, recovery of wood at the instance of the appellant and recovery memo that was prepared by the police while taking into custody the blood stained soil and plain soil. This witness also proved those articles.

12. PW 3 is Mohan Chand, in whose shop, according to the prosecution, PW 2 Devi Chand had revealed as to what had happened on 09.02.2014 at 09:00 p.m. He has stated about it. According to him, in fact, this witness also reached at the place of incident in the night, where he found that the deceased had already died; the deceased had injuries on his head. This witness has also stated that next day morning, PW 1 Ramichand and others had gone to Police Chowki Mandlak to lodge a report and on return, they met PW 2 Devi Chand, who revealed as to how the incident occurred in his presence. 8

13. PW 4 Gopal Chand is also another witness, who has stated that on the date of incident, he was also told that the deceased was lying on a pathway in an injured condition. He also reached the place of incident, where they found that the deceased has died and he along with other villagers guarded the dead body the whole night. These are the witnesses of fact.

14. PW 5 Praveen Chand initially visited the place of incident and prepared the inquest report. He also forwarded the dead body for post-mortem. According to him, he also joined the Investigating Officer in preparation of the site plan, arresting of accused and recovery of the weapon of offence. He has also stated about other steps, that were taken by the Investigating Officer during investigation.

15. PW 6 Dr. K.R. Saun is the doctor, who conducted the post-mortem report of deceased. He has stated that he has prepared the post-mortem report Ex. A-10. According to this witness, the cause of death was “ante-mortem brain haemorrhage due to head injury.

16. PW 7 Head Constable Subhash Chand Pant is the GD writer. He has proved the chik FIR and general diary entries of the police station.

17. PW 8 Laxman Singh is another Investigating Officer. He has also conducted investigation, prepared site plan, Ex. A-19 and also took into custody the blood stained soil and plain soil, arrested the appellant, prepared the arrest memo, etc. 9

18. PW 9 Kamal Ram Arya is the final Investigating Officer. He has submitted the charge sheet in the case.

19. In order to bring home the guilt of an accused, the prosecution has to prove its case beyond reasonable doubt. What is ‘proved’, it has been discussed by the Hon’ble Supreme Court in the case of K. Ponnuswamy v. State of T.N. by Inspector of Police, Directorate of Vigilance and Anti-Corruption, South Range, Trichy, 2001 (6) SCC 674. In para 27 of it, the Hon’ble Supreme Court has observed as under:- “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 10 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.”

20. In the case of State of Karnataka Vs. J. Jayalalitha, (2017) 6 SCC 263, the Hon’ble Supreme Court has referred to the judgment case of Woolmington v. Director of Public Prosecutions 1, and in para 222 observed as follows:- “222. That the burden of proof of a charge is on the prosecution subject to the defence of insanity and any other statutory exception has been authoritatively proclaimed in Woolmington v. Director Public Prosecutions [Woolmington v. Director of Public Prosecutions, 1935 AC 462 (HL)] and testified by the following extract : (AC pp. 481-82) “… Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt 1 1935 AC 462 (HL) 11 of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”

21. Based on the probability or the suspicion, howsoever grave it may be, a finding of guilt may not be recorded. It has to be proved that it is the accused and the accused alone, who has committed the offence. It should be to the extent of ‘must be’ and not only ‘may be’.

22. This aspect has been discussed by the Hon’ble Supreme Court in the case of Sujit Biswas v. State of Assam, (2013) 12 SCC

406. In para 13, the Hon’ble Supreme Court observed as under:- “13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that “may be” proved, and something that “will be proved”. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between “may be” true and “must be” true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in 12 mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide Hanumant Govind Nargundkar v. State of M.P. [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1953 Cri LJ 129] , State v. Mahender Singh Dahiya [(2011) 3 SCC 109 : (2011) 1 SCC (Cri) 821 : AIR 2011 SC 1017] and Ramesh Harijan v. State of U.P. [(2012) 5 SCC 777 : (2012) 2 SCC (Cri) 905] )”

23. In the case of Ramakant Rai v. Madan Rai and others, (2003) 12 SCC 395, the Hon’ble Supreme Court observed that “A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to “proof” is an exercise particular to each case”.

24. In view of the settled legal position, the matter shall be examined.

25. At Police Chowki Mandlak, first time the information related to the incident was given by PW 1 Ramichand on 10.02.2014 at 08:15 a.m., which was recorded in general diary entry by report No. 11, extract of which is Ex. A-15, as proved by PW 7 Head Constable Subhash Chand Pant. It records that at that time PW 1 Ramichand had informed that his cousin Manichand is lying dead in village Balkura. The application as given at 08:15 a.m. on 10.02.2025 by PW 1 Ramichand has been quoted in detail, in the inquest report. 13

26. It is important to note that in the first report, that was given by PW 1 Ramichand at Police Chowki Mandlak on 10.02.2014 at 8:15 a.m., the name of the appellant has not been given. The question is as to whether PW 1 Ramichand was not aware of the name of the appellant till he lodged the first report at 08:15 a.m. on 10.02.2014? As stated, according to PW 1 Ramichand, he was in another village on

09.02.2014, when in the midnight at about 02:00 a.m. he was told about the injuries that were sustained by the deceased Manichand. Thereafter, he came to the village and found the deceased Manichand lying in injured condition on the ground and bleeding. According to PW 1 Ramichand, he inquired as to how the deceased Manichand sustained injuries, but no villagers did till him as to how the deceased sustained injuries.

27. Here, it is important to note that, according to the prosecution, PW 2 Devi Chand had witnessed the incident. The statement of PW 2 Devi Chand requires closer scrutiny. According to PW 2 Devi Chand, the appellant was about to take dinner at his house, when suddenly his mobile phone rang and he went outside of the house; at about 10-15 meters of his house, the deceased also came; thereafter, an altercation ensued between them and in that process, according to PW 2 Devi Chand, the appellant hit the deceased on his head and both of them ran away; thereafter, according to PW 2 Devi Chand, he returned to home and started having meal, but suddenly, he was told by a 12-14 years old boy that the deceased was lying in an injured condition on the pathway; then he reached the spot; there were 14 many persons present; they found that the deceased was dead; they guarded the deceased the whole night.

28. Now, the question that falls for consideration is that if PW 1 Ramichand was also with the dead body in the night and PW 2 Devi Chand was also guarding the dead body in the night, why PW 2 Devi Chand did not reveal it to PW 1 Ramichand as to who killed the deceased? And, if he had told it to PW 1 Ramichand, why PW 1 Ramichand did not name the appellant in the first report, which he gave at Police Chowki on 10.02.2014 at 08:15 a.m., as reported in the general diary report No. 11 of that day, which is Ex. 15? This makes the statement of PW 2 Devi Chand unreliable and casts a huge doubt on the prosecution case. The statement of PW 2 Devi Chand is not trustworthy.

29. There is another important aspect. According to the FIR, after initially lodging the report at 08:15 a.m. at Police Chowki Mandlak, when the PW 1 Ramichand was returning home, at the shop of PW 3 Mohan Chand, he met PW 2 Devi Chand. This further doubts the prosecution story. As stated, according to PW 2 Devi Chand, he was guarding the dead body the whole night. PW 1 Ramichand had also reached the spot in the night itself. Then, where is the question for PW1 Ramichand of meeting PW 2 Devi Chand, for the first time, at the shop of PW 3 Mohan Chand? Here, the statement of PW 1 Ramichand is not inspiring confidence. It creates a lot of doubt on the prosecution case. 15

30. According to the FIR, when PW 1 Ramichand returned after lodging the initial report at Police Chowki Mandlak at 08:15 a.m., he met PW 2 Devi Chand at the shop of PW 3 Mohan Chand, there PW 2 Devi Chand revealed him as to how the appellant hit the deceased Mani Chand in the night of 09.02.2014. This is what is stated in the FIR.

31. But, in the Court, PW 1 Ramichand states that after guarding the dead body the whole night, he along with Sunder Chand and Bahadur Chand went to lodge the report and while they were on the way, they met PW 2 Devi Chand in the shop of PW 3 Mohan Chand and there PW 2 Devi Chand revealed it to him as to how the appellant killed the deceased. Thereafter, they lodged the report, which this witness has proved as Ex. A-1. This statement is totally unreliable, because as per the prosecution case, PW 1 Ramichand had given two reports. First report was given by him at 08:15 a.m., which is recorded in general diary entry No. 11 at 08:15 a.m. and second report was given by him on 10.02.2014 at 06:15 p.m., which is the FIR in the instant case. If PW 1 Ramichand was told by PW 2 Devi Chand in the morning of 10.02.2014, while they were going to lodge the report, that it is the appellant, who killed the deceased, why at the first instance, the appellant was not named in the report that was given at 08:15 a.m. by PW 1 Ramichand? This doubts the entire prosecution case.

32. According to PW 2 Devi Chand, the appellant was in his house on 09.02.2014 and at about 09:00 p.m., they were about to 16 have their meals. Suddenly, the mobile phone of the appellant rang and he went outside the house at a distance of 10-15 meters, where suddenly the deceased also reached and an altercation and scuffle ensued between them and in that process, the appellant hit the deceased and they both ran away. Thereafter, according to PW 2 Devi Chand, he came back and started having his meal. This is what is stated in page 2 of the statement of PW 2 Devi Chand. But, at page 6, bottom line, he states that when the fight ensued between the appellant and the deceased and they ran away from that spot, he also ran up after that. What is the truth?

33. According to PW 2 Devi Chand, the appellant was his guest in the evening of 09.02.2014, who was about to have his meals, when his mobile phone rang and he went outside. Thereafter, according to PW 2 Devi Chand, the deceased also reached there and an altercation ensued between the deceased and appellant and in that process, the appellant hit the deceased. Can the host i.e. PW 2 Devi Chand still come back and have his meals quietly?

34. How did PW 2 Devi Chand see as to what was happening at a distance of 10-15 meters distance of his house? In page 2 of his statement, PW 2 Devi Chand states that it was dark outside, nothing was visible. Though, at one stage, at page 6 beginning lines, he tells that there was light, where the appellant and the deceased were having scuffle. The site plan is Ex. A-19. It is proved by PW 8 Laxman Singh. According to site plan, there is no source of light. In the night of 17 February, when there is no source of light, how PW 2 Devi Chand could see as to what is happening at a distance of 10-15 meters, when there is dark outside? This also doubts the prosecution case.

35. In view of the foregoing discussions, this Court is of the view that the prosecution has not been able to prove the case beyond reasonable doubt. The appellant deserves to be acquitted of the charge levelled against him. Accordingly, the impugned judgment and order passed by the court below convicting and sentencing the appellant deserves to be set aside and the appeal deserves to be allowed.

36. The appeal is allowed.

37. The impugned judgment and order dated 07.08.2015 is set aside. The appellant Suresh Chand is acquitted of the charge under Section 302 IPC.

38. The appellant Suresh Chand is in jail. Let he be set free forthwith, unless wanted in any other case.

39. The appellant shall furnish a personal bond and two reliable sureties, each of the like amount to the satisfaction of the court concerned under Section 437 A of the Code within a month from his release.

40. Let a copy of this judgment along with the trial court record be sent to the court concerned. (Alok Mahra, J.) 07.10.2025 Avneet/ (Ravindra Maithani, J)

07.10.2025