Joginder Singh v. State of Uttarakhand

Next morning, his dead body was detected. FIR was lodged by the father of the deceased PW2 Gulam Navi. It was written by PW1 Bhuwan Chandra Pokhariya. Based on which, Case Crime No. 46 of 2011, under Section 302 IPC was lodged. The inquest of the deceased Irfan Ali was also prepared and his post mortem was also conducted on 01.12.2011. According to the post mortem report, the cause of death was shock and haemorrhage due to ante mortem injury, which was found on the neck.

3. According the prosecution case, the appellant alongwith the co-accused Ghanshyam was apprehended. They 3 revealed that on the date of incident, they had killed one of the goats of PW2 Gulam Navi and it was noticed by the deceased Irfan Ali, therefore, they also killed him by a sickle. The sickle by which the killing was done as well as the jeans, which has blood stains of the appellant Jogender, were kept by them, somewhere in the residence of the appellant, which were subsequently recovered. The statement of those two persons were also recorded by the Investigating Officer. Site plan of the place of incident was prepared. In fact, strangely, the post mortem and inquest of the goat were also conducted. After investigation, charge sheet under Sections 302, 429, 201 IPC was filed against the appellant and the co-accused Ghanshyam.

4. On 02.04.2012, charges under Section 302 read with 34 429 read with 34 and 201 IPC were framed against the appellant and the co-accused Ghanshyam, to which, they denied and claimed trial.

5. In order to prove its case, the prosecution examined ten witnesses, namely, PW1, Bhuwan Chandra Pokhariya, PW2, Gulam Navi, PW3 Mohd. Shafi, PW4 Laldeen, PW5 Noor Alam, PW6 Dr. R.S. Kunwar, PW7 Dushyant Sharma, PW8 SI Umed Singh Danu, PW9 Head Constable, Subhash Chandra and PW10 Sub Inspector, Naveen Chandra Joshi.

6. After prosecution evidence, the appellant and the co-accused were examined under Section 313 of the Code. According to them, the witnesses have falsely stated against them.

7. After hearing the parties, by the impugned judgment and order, the co-accused Ghanshyam has been acquitted of the charges 4 framed against him and the appellant has been convicted and sentenced, as stated hereinbefore. Aggrieved, the appellant preferred the instant appeal.

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

9. Learned counsel for the appellant submits that instant case is based on the circumstantial evidence, but there is no such evidence, which may even remotely connect the appellant to the offence. He submits that on identical statements, the co-accused Ghanshyam has been acquitted. He also submits that the chain of evidence is not remotely connected to indicate even that it may be the accused, who has committed the crime. Whereas, what is required, according to learned counsel for the appellant, is that the chain of evidence should indicate only one conclusion that it is the accused only, who has committed the offence, which it is argued that it is lacking in the instant case. He has referred to the statements of few witnesses.

10. On the other hand, learned State counsel submits that PW4 Laldeen has stated about the presence of the appellant in the forest and there is a recovery.

11. Learned State Counsel would submit that the prosecution has been able to prove its case beyond reasonable doubt. Therefore, there is no reason to make any interference with the conviction and sentence. 5

12. Before the arguments are appreciated, it would be apt to examine as to what the witnesses have stated. In fact, PW2 Gulam Navi is father of the deceased. He has stated that on 30.11.2011, his son had gone alongwith his goats to the forest. He was not traceable. A search was made. Out of 16 goats, only 15 goats were recovered. On that date, the deceased could not be recovered. On that date, he had seen the co-accused Ghanshyam in the forest. He was armed with axe and patal (a sharp edged weapon) and running out of forest. According to this witness, next day morning, the dead body of the deceased was recovered. An inquest was done. This witness has also stated that he has got the report lodged, which is Ex. A1. He has also proved the inquest report Ex. A2. According to this witness, a dead goat was also recovered, of which recovery memo was prepared and inquest was done.

13. PW 1 Bhuwan Chandra Pokhariya is the scribe of the FIR. According to him, he recorded the FIR, as stated to him by the PW2 Gulam Navi.

14. PW3 Mohd. Shafi, according to FIR, had seen the co-accused Ghanshyam in the forest, but he has not so stated in the court. According to him, on 30.11.2011, he had seen the deceased in the forest grazing the goats. Subsequently, he was not traceable. Next day morning, his dead body was recovered. He has stated about the inquest. According to this witness, on 02.12.2011, the dead goat was also recovered.

15. PW4 Laldeen is an important witness, who was also in the forest alongwith his goats, when the deceased was found missing. He 6 has stated that he had seen the appellant and the co-accused Ghanshyam in the forest on the date of incident. The appellant was armed with a patal.

16. PW5 Noor Alam has also stated that the deceased was found missing in the forest on 30.11.2011 and his dead body was recovered on 01.12.2011. This witness has also stated that, in fact, he had informed the police after recovery of the dead body.

17. PW6 Dr. R.S. Kunwar has conducted post mortem of the deceased Irfan Ali. According to him, the case of death is shock and haemorrhage due to ante mortem injuries.

18. PW7 Dr. Dushyant Sharma had conducted the post mortem of the goat. He has proved the report.

19. PW10 Sub Inspector, Naveen Chandra Joshi is the first Investigating Officer. He conducted the investigation. According to him, he took into custody the blood stained and plain soil from the place of incidence and prepared other documents. According to him, the appellant and the co-accused have confessed that they had killed the deceased with the sickle and they could recover the sickle and blood stained jeans. This witness has proved those articles and has stated about the inquest and other documents also.

20. PW8 Sub Inspector, Umed Singh Danu Investigating Officer, who has submitted charge sheet in the case. He has also proved the Forensic Science Laboratory report Ex. A8. 7

21. PW9 Head Constable, Subhash Chandra is the person, who has recorded chik FIR and made General Diary entry of the case.

22. It is a case based on the circumstantial evidence. The chain of circumstances should be so interconnected that it should lead to only one conclusion that it is the appellant and the appellant alone, who has committed the offence. The prosecution has to prove its case beyond reasonable doubt.

23. The principles of appreciation of evidence in the matters of circumstantial evidence has been laid down by the Hon’ble Supreme Court in the case of Sharad Birdichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116. In para 153 of the judgement, the Hon’ble Supreme Court observed as follows:- “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “Certainly, is a primary principle accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, 8 they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) 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.”

24. In the instant case, according to the FIR, on the date of incident, the appellant and co-accused Ghanshyam were spotted in the forest. This is one circumstance, which the prosecution is projecting against the appellant. In fact, PW2 Gulam Navi in his statement has stated that he did not see the appellant in the forest on the date of incident.

25. The second circumstance, which the prosecution is projecting against the appellant is that he confessed before the police that he killed the deceased and he had kept the sickle and blood stained jeans in his house. According to the prosecution, which were also recovered.

26. What is being projected against the appellant is the recovery under Section 27 of the Indian Evidence Act, 1872. But, admittedly, the Forensic Science Laboratory report does not connect those recovered articles with the offence. The report is Ex. A8. On the sickle and the jeans the blood was disintegrated. It also does not connect the appellant with the offence. 9

27. In fact, it is a case, in which, the prosecution has utterly failed to even remotely suggest that it is the appellant, who has committed the offence. Merely, the appellant was spotted in the forest, where the deceased was also alongwith his goats, may not draw an inference that it is the appellant, who has killed the deceased.

28. Having considered the entire material available on record, this Court is of the view that the prosecution has utterly failed to prove the charges levelled against the appellant and the appellant ought to have been acquitted of the charges levelled against him. Learned court below has committed an error in convicting and sentencing the appellant. Therefore, the appeal deserves to be allowed.

29. The appeal is allowed.

30. The judgment and order dated 19.11.2014/21.11.2014, passed in Sessions Trial No. 32 of 2012, State Vs. Jogender and another, by the court of 1st Additional District and Sessions Judge, Nainital, whereby the appellant has been convicted and sentenced for the charges under Sections 302, 429 and 201 IPC is set aside.

31. The appellant Jogender Singh is acquitted of the charges under Sections 302, 429 and 201 IPC.

32. Appellant is on bail. He needs not to surrender. His bail bonds are cancelled and sureties discharged. 10

33. The appellant shall furnish a personal bond and two sureties, each of the like amount to the satisfaction of the court concerned under Section 437 A of the Code.

34. Let a copy of this judgment along with the trial court record be sent to the court concerned. (Alok Mahra J.) (Ravindra Maithani, J.) 01.09.2025

01.09.2025 Jitendra