St at e of Ut t arakhand v. Wit h

trial before the Sessions Court, Haridwar. 2

8. During the trial, witness testimonies indicated that on the evening of 26.12.2007, Govind Singh, Amar Singh, and Bhajan Singh were allegedly seen together at Rishikul bus ground, where they were drinking alcohol inside the bus.

9. Witness Rajendra Singh (PW-4), a bus driver, stated that he had seen the three individuals together before leaving to watch a movie. However, upon returning later that night, he found that the bus was no longer at its original location and that neither the deceased nor the two appellants were present.

10. Statements were also recorded regarding an incident on 28.12.2007, when PW-15 Gopal Ji alias Mota, a resident near Chandighat cremation ground, claimed to have seen two individuals bring a body to the cremation ground at around 10:30 PM. It was stated that these individuals misrepresented the body as that of a five-year-old child, allegedly intending to immerse it in the river. However, upon closer examination the following day, it was observed that the body was of an adult male, following which the authorities were informed, and a formal recovery process was initiated.

11. After evaluating the evidence on record, the Sessions Court, Haridwar, the circumstantial evidence established an unbroken chain of events leading to the alleged offence and held that the charges had been proved.

12. Consequently, Amar Singh and Bhajan Singh were convicted under Sections 302/34 and 201/34 IPC and sentenced to life imprisonment along with a fine of ₹5,000 each under Section 302/34 IPC, with an additional one month of simple imprisonment in case of default of acceptable payment.

13. Additionally, for the offence under Section 201/34 IPC, the appellants were sentenced to seven years of rigorous 3 imprisonment along with a fine of ₹5,000 each, with an additional one month of simple imprisonment in case of default of fine payment. Both sentences were directed to run concurrently.

14. The appellants have challenged their conviction on multiple grounds, contending that the trial court’s findings are erroneous, speculative, and based on circumstantial evidence that fails to establish their guilt beyond reasonable doubt.

15. It is argued that the State’s case rests entirely on indirect evidence, with no direct witness to the alleged crime, and that the trial court failed to assess the inconsistencies and contradictions in the testimonies of key witnesses. The appellants submit that the evidence on record does not form an unbroken chain linking them to the alleged offence and that the conclusions drawn by the trial court are based on conjectures rather than concrete proof.

16. It is submitted that the missing report dated

04.01.2008, lodged by Mohan Singh(the informant), does not name the appellants or express any suspicion against them. It was only after the alleged identification of the body on 08.01.2008 that the informant filed a written complaint implicating the appellants.

17. The appellants argue that this delay in naming them raises doubts about the credibility of the allegations, as the first informant had no direct knowledge of the incident.

18. Furthermore, it is contended that the entire case against them was built retrospectively, which calls into question the reliability of the accusations.

19. The appellants challenge the last-seen theory, arguing that it is unsupported and unreliable. Witness PW-4 Rajendra Singh, who allegedly saw the deceased with the appellants on 4

26.12.2007, did not support the State’s version in his cross- examination. He did not confirm any quarrel between the appellants and Govind Singh, nor did he claim to have seen any forceful act against the deceased.

20. Additionally, PW-3 Manmohan Singh was declared hostile, thereby further weakening the claim that the deceased was last seen alive in the company of the appellants before his death. It is argued that since there is no direct evidence of the alleged assault or forced drowning, the trial court’s reliance on circumstantial evidence was misplaced.

21. The appellants further contend that the identification the deceased’s body is questionable, as significant contradictions exist between the informant’s description and the post-mortem report. The missing report mentions a cut mark on the chin of Govind Singh, but PW-11 Dr. R.S. Chauhan, who conducted the post-mortem, recorded no such injury.

22. The appellants argue that this discrepancy casts doubt on whether the body recovered on 26.12.2007 was, in fact, that of Govind Singh. Additionally, the identification was based solely on a photograph, and no DNA or forensic confirmation was conducted to verify the claim scientifically. The appellants submit that the trial court ignored these inconsistencies and wrongly assumed that the identification was conclusive.

23. The appellants also challenge the testimony of PW-15 Gopal Ji alias Mota, who claimed to have seen two individuals bring a body to the Chandighat cremation ground on 28.12.2007. It is argued that PW-15’s testimony is unreliable, as he identified the appellants in court only after six years, despite never participating in a Test Identification Parade (TIP) during the investigation. 5

24. The appellants contend that a delayed in-court identification is inherently weak, especially when the witness had no prior acquaintance with the accused. Further, it is pointed out that PW-15 initially stated that the body was described as that of a five-year-old child but later claimed that it was an adult male, which raises doubts about the credibility of his statement.

25. The appellants argue that the medical evidence does not support the State’s case. The post-mortem report recorded drowning as the cause of death but did not establish whether the deceased was forcibly drowned or had drowned accidentally.

26. Moreover, despite claims that the deceased had been drinking alcohol with the appellants, no traces of alcohol were found in his stomach, contradicting the narrative of events. The appellants submit that the trial court wrongly inferred intentional homicide without medical or forensic proof to support such a finding.

27. The appellants have also highlighted serious investigative lapses. They argue that the alleged three-wheeler used in the incident has not been properly identified, as the number provided in the case does not match any valid vehicle registration. Additionally, no recovery was made of Govind Singh’s clothes or personal belongings, and certain key witnesses were not examined, which, according to the appellants, raises doubts about the fairness of the investigation.

28. Lastly, the appellants contend that all incriminating circumstances were not put to them during their examination under Section 313 Cr.P.C., thereby depriving them of a fair opportunity to explain their position. They submit that the trial court’s findings are based on assumptions rather than direct 6 evidence and that the benefit of the doubt should have been extended to them.

29. Per contra, the respondent contends that the conviction of the appellants is based on a complete chain of circumstantial evidence duly established through credible witness testimonies and documentary evidence.

30. It is argued that the trial court correctly appreciated the sequence of events, which, when considered collectively, leads to the inescapable conclusion that the appellants are guilty of the alleged offences.

31. The appellants’ claim that the case rests on conjecture and surmise is unfounded, as the State successfully established in the evidentiary chain, proving the appellants’ culpability beyond reasonable doubt.

32. The last-seen evidence, as presented through PW-4 Rajendra Singh, forms a crucial link in the State’s case. PW-4 categorically stated that on 26.12.2007, he saw Govind Singh, Amar Singh, and Bhajan Singh inside bus UA-12-1482 at Rishikul bus ground, where they were allegedly drinking and involved in a heated altercation.

33. While the appellants argue that PW-4 did not explicitly confirm a physical assault, the fact remains that the deceased was last seen alive in their company. The appellants have failed to provide any explanation as to what transpired thereafter.

34. The respondent submits that Section 106 of the Evidence Act places the burden on the accused to explain the circumstances leading to the deceased’s disappearance and subsequent death, which they have failed to do. 7

35. Further, PW-15 Gopal Ji alias Mota, an independent witness, provided critical evidence linking the appellants to the disposal of the deceased’s body. He stated that on 28.12.2007 at approximately 10:30 PM, he saw three individuals bring a body to the Chandighat cremation ground in a three-wheeler.

36. Two of these individuals were subsequently identified in court as the appellants based on the electric light available at the scene. The claim that PW-15’s testimony is unreliable due to the absence of a Test Identification Parade (TIP) is misleading, as PW-15 consistently maintained his version and identified the appellants in open court, which holds evidentiary value.

37. The respondent further argues that the appellants have not demonstrated any enmity or motive for PW-15 to implicate them, reinforcing the credibility of his testimony falsely.

38. The appellants’ argument regarding the identification of the deceased’s body is also without merit. PW-1 Mohan Singh and other relatives of the deceased identified the body based on distinct physical features, which PW-6 Gopal Singh Bisht, PW-7 Surendra Singh, PW-8 Narayan Singh, and PW-9 Dayal Singh sufficiently corroborated.

39. While the appellants rely on a discrepancy concerning a cut mark on the chin, the respondent submits that such minor inconsistencies do not affect the broader identification process, mainly when multiple witnesses, including the deceased’s family members, confirm the identity of the body.

40. Moreover, the appellants have not provided any plausible alternative explanation regarding the identity of the deceased, thereby failing to rebut the State’s evidence.

41. Regarding the medical evidence, the post-mortem report categorically establishes asphyxia due to drowning as the 8 cause of death. The appellants argue that the absence of external injuries contradicts the theory of intentional homicide.

42. However, the respondent submits that drowning does not necessarily require external injuries, and the lack of such marks does not rule out homicidal drowning.

43. Additionally, while no alcohol was found in the deceased’s stomach, this does not negate the fact that he was last seen drinking with the appellants, as per PW-4’s testimony. The appellant’s reliance on the absence of forensic confirmation of intoxication is an attempt to divert from the strong circumstantial chain linking them to the offence.

44. The respondent further argues that the appellants’ claim that there is no evidence of transportation of the deceased’s body in a three-wheeler is misleading. While the exact registration number of the vehicle may not have been conclusively established, PW-15’s testimony, coupled with the recovery of the body exactly where he stated it had been left, corroborates the State’s version of events.

45. The argument that the number mentioned in the case pertains to a scooter rather than a three-wheeler is an inconsequential technicality, which does not weaken the overall evidentiary framework.

46. It is also submitted that the investigation was conducted fairly and correctly, and the alleged lapses pointed out by the appellants do not undermine the core findings.

47. The claim that Govind Singh’s clothes and personal belongings were not recovered is immaterial, as the absence of such articles does not negate the substantive evidence establishing the sequence of events. Furthermore, the appellant’s contention regarding the non-examination of particular witnesses 9 is without substance, as the State presented all material witnesses necessary to prove the case, including those who saw the deceased with the appellants and those who identified the body.

48. Finally, the respondent submits that the appellants were given full opportunity to present their defence under Section 313 Cr.P.C., and the claim that certain incriminating circumstances were not put to them is unfounded.

49. The appellants failed to provide any reasonable explanation for their presence with the deceased on 26.12.2007, nor did they account for the subsequent events leading to the discovery of his body. The trial court correctly held that the State had established an unbroken chain of circumstances proving the appellants’ guilt beyond reasonable doubt, justifying their conviction under Sections 302/34 and 201/34 IPC.

50. Upon a meticulous examination of the prosecution’s case. This Court observes that It is a well-established principle of law that courts must focus on the quality of evidence rather than the quantity when determining the proof or disproof of a fact.

51. In the case at hand, the prosecution has relied entirely on circumstantial evidence without conclusively establishing a complete chain of events leading to the accused's guilt beyond a reasonable doubt. Various inconsistencies in witness testimonies, medical reports, and investigative lapses further cast serious doubts on the veracity of the allegations against the appellants.

52. The case is built solely on circumstantial evidence, and as per records, it is based on an incomplete chain of events. In cases relying solely on circumstantial evidence, the burden is on the prosecution to establish an unbroken and conclusive chain 10 of events that inevitably point to the guilt of the accused. As laid down by the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622), circumstantial evidence must be strong enough to exclude every hypothesis other than that of the guilt of the accused.

53. The present case, however, suffers from several gaps in the evidentiary chain: (a) Unreliable "Last Seen" Witnesses: The prosecution relied on the testimonies of PW-3 Manmohan Singh and PW-4 Rajendra Singh to establish that the deceased was last seen with the accused. However, these witnesses failed to support the prosecution’s version. PW-3 turned hostile, and PW-4 stated in his cross-examination that he did not know of any quarrel or intoxication involving the deceased and the accused. Their testimonies thus lose credibility and cannot be relied upon as conclusive proof of the accused's involvement. (b) Hearsay Evidence Cannot Replace Direct Proof: The testimony of PW-1 Mohan Singh, the complainant, is based on hearsay and not on direct observation. His knowledge of the events leading to his brother’s death is entirely derived from what other witnesses allegedly told him. However, hearsay evidence is inadmissible as substantive proof, as reaffirmed by the Supreme Court in the State of Haryana v. Surender (AIR 2007 SC 2312). Without direct evidence linking the accused to the crime, the prosecution’s case becomes weak, and 11 (c) No Direct Proof of the Act of Drowning: The prosecution has failed to produce any evidence— either documentary or testimonials showing that the appellants forcefully took the deceased to the riverbank and drowned him. There is no forensic evidence, CCTV footage, or independent eyewitness testimony that can establish this crucial link.

54. The cumulative effect of these factors results in a broken chain of circumstantial evidence that is insufficient to hold the accused guilty.

55. The Hon’ble Supreme Court, in a series of decisions, has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so entirely that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else; (iv) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused, and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 12

56. There are serious procedural lapses regarding the identification of the accused. In cases where the accused are identified based on eyewitness accounts, the Test Identification Parade (TIP) serves as a crucial procedural safeguard to prevent mistaken identity. The absence of a TIP significantly weakens the prosecution’s case.

57. In Dana Yadav v. State of Bihar (2002) 7 SCC 295), the Supreme Court held that in-court identification, without prior identification through a TIP, must be treated with extreme caution.

58. In the present case, PW-15 (Gopalji @ Mota) claimed to have seen three persons carrying a body near the riverbank but did not know them personally. He identified the accused for the first time in court years after the alleged incident. Given the human tendency to forget faces over time, such a delayed identification carries little evidentiary value.

59. The police did not arrange for a TIP, where PW-15 could have identified the accused under neutral conditions. Without such a procedure, his courtroom identification cannot be treated as reliable proof.

60. The failure to follow essential procedural safeguards further dilutes the prosecution’s case and introduces reasonable doubt regarding the identification of the accused.

61. The Identity of the Deceased itself is doubtful. A fundamental flaw in the prosecution’s case is the discrepancy between the post-mortem report and the method used to identify the deceased: (a) Contradiction Between the Photograph and the Post-Mortem Report: The prosecution relied on a photograph to confirm that the body found in the 13 river was that of Govind Singh. However, while the picture allegedly shows injuries on the body, the post-mortem report (Exhibit A-4) explicitly states there were no external injuries. This inconsistency raises a serious question: Was the body that underwent post-mortem the same body that was identified in the photograph? And (b) Possibility of Mistaken Identification: Since no DNA test or scientific verification was conducted to confirm the deceased’s identity, it remains uncertain whether the body recovered was indeed that of Govind Singh. This discrepancy in the identity of the deceased creates a substantial loophole in the prosecution's case.

62. In Vadivelu Thevar vs The State of Madras (1957) SCR 981 para 12-13], the Hon’ble Supreme Court observed that when the witness is wholly reliable, the Court should not have any difficulty in as much as conviction or acquittal could be based on the testimony of such single witness. Equally, if the Court finds that the witness is wholly unreliable, neither conviction nor acquittal can be based on the testimony of such a witness. It is only in the third category of witness that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.

63. There are contradictions in the medical evidence that make the prosecution's theory unconvincing. The post-mortem report concluded that the cause of death was asphyxia due to drowning. However, critical aspects of the report contradict the prosecution’s allegations: 14 (1) Absence of External Injuries: The medical report found no external injuries, undermining the claim that the deceased was physically assaulted before being drowned and (2) No Evidence of Alcohol Consumption. The prosecution argued the deceased was intoxicated before being murdered, but the post- mortem examination found no traces of alcohol in his body. This contradiction weakens the theory that an altercation took place due to drunken behaviour.

64. There may be a possibility of Accidental Drowning. The presence of sand particles in the trachea and larynx suggests that the drowning may have been accidental rather than homicidal. These medical contradictions cast serious doubt on whether a murder occurred at all.

65. The prosecution has failed to present a consistent timeline of events, which is crucial in cases relying on circumstantial evidence.

66. There are Conflicting Testimonies regarding the Date of the Incident. The prosecution claims that the murder took place on 26th December 2007, but PW-15’s testimony describes an event on 28th December 2007. The body was discovered only on 29th December 2007, further complicating the timeline.

67. There is an absence of clear Forensic Evidence. No forensic analysis was conducted to determine how long the body had been in the river, making it difficult to correlate the time of death with the alleged incident.

68. The investigation, in this case, was marred by multiple procedural failures, which further weakened the prosecution’s claims: 15 (i) Non-Recovery of the Alleged Three-Wheeler: The prosecution claimed that a three-wheeler was used to transport the deceased before being drowned, but this vehicle was never recovered or examined for forensic evidence. (ii) Failure to Record Statements of Crucial Witnesses: The driver of the alleged three-wheeler, who could have provided vital testimony, was never examined, (iii) Lack of Scientific Evidence: No fingerprints, blood samples, or other forensic materials linking the accused to the crime were recovered.

69. In the present case, the chain of circumstantial evidence is incomplete. The "last seen" theory, which is the cornerstone of the prosecution’s case, is not established beyond reasonable doubt, as witnesses PW-3 and PW-4 failed to support it.

70. Additionally, PW-1's testimony is hearsay, making it inadmissible as substantive proof. Further, the identification of the accused is highly questionable, as PW-15, the alleged eyewitness, failed to identify the accused during the investigation. No Test Identification Parade (TIP) was conducted, the medical evidence directly contradicts the prosecution’s theory, and the failure to establish the time and place of death is another significant flaw. The serious lapses in the investigation further weaken the case.

71. In light of the above findings, this Court holds that the prosecution has failed to establish the appellants' guilt beyond reasonable doubt. The inconsistencies in witness testimonies, contradictions in medical findings, unreliable identification, gaps 16 in the timeline, and investigative failures all cumulatively render the case too weak to sustain a conviction.

72. Accordingly, this Court sets aside the conviction and sentence imposed by the learned Sessions Judge, Haridwar, vide judgment dated 4th April 2014. The appellants, Amar Singh and Bhajan Singh are acquitted of all charges under Sections 302/34 and 201/34 IPC. They shall be released forthwith unless required in any other case. M A N OJ K UM A R TI W A RI , J. A SH I SH N A I TH A N I , J. SB SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c2 4b5aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A54 2D7FF0A9BED00E67B5283D205F18FE29BDF5D D9, cn=SHIKSHA BINJOLA 17