State of Uttarakhand v. Presence

Judgment

HON’BLE ASHISH NAITHANI, J . Heard learned counsel for the appellant on Delay Condonation Application.

2. As per office report, there is a delay of 47 days in preferring this Leave to Appeal as well as the Government Appeal. On being satisfied with the reasons so furnished in the affidavit, we allow the application and condone the delay in filing leave to appeal.

3. The present Government Appeal under Section 378(3) of the Code of Criminal Procedure, 1973, has been filed by the State of Uttarakhand seeking leave to appeal against the judgment and order dated 17.10.2020, passed by the learned Additional District and Sessions Judge, Tehri Garhwal, in Sessions Trial No. 08 of 2015, in which the respondents were acquitted of the charges under Sections 302/34 and 201/34 of the Indian Penal Code, 1860. 1

4. The prosecution case, in brief, is that the deceased, Sachin Lakhera, was last seen on 28.11.2014 in the company of the respondents at village Patudi. It was alleged that the respondents had a motive to eliminate the deceased due to his supposed illicit relationship with the sister of respondent no.1. A missing report was filed on 30.11.2014, and the dead body of the deceased was recovered on 10.01.2015.

5. The defense counsel stated that the prosecution has failed to establish the motive. Regarding the call details, which supposedly show a conversation between the sister of accused Dinesh Khanka and the deceased, no supporting evidence has been provided. The call in question is said to have been made by Shakuntala Devi, the sister of Dinesh Khanka, but no mobile phone was recovered from her. Additionally, no recovery was made under Section 27 of the Indian Evidence Act. The prosecution has not proven the motive for the murder or demonstrated any dispute between the accused and the deceased. The accused have no prior criminal records, and the phonography test results were negative. A crucial point in the case is that the accused were never named, and even when the actual culprits were identified during the investigation, they could not be apprehended. In light of these factors, the defense argues that the prosecution has failed to substantiate the charges against Dinesh Khanka and Makhan Singh, and they should be acquitted of the charges.

6. The prosecution examined 18 witnesses, including so- called last-seen witnesses and investigating officers. There was no direct eyewitness to the occurrence. The case against the accused rested entirely on circumstantial evidence—primarily, the last-seen theory, motive, and the recovery of the dead body.

7. The trial court found material contradictions and inconsistencies testimony of key prosecution witnesses, particularly concerning the circumstantial last-seen witnesses. The statements of PW-3, PW-4, and PW-6 differed materially on the time, location, and circumstances under which the deceased was allegedly seen with the accused.

8. PW-3 Sunil Kaintura has testified in his examination-in- chief that "Sachin Lakheda, Makhan Singh, Dinesh Khanka, and another unidentified man were sitting in their storeroom, eating and drinking. The witness stated that he knows Makhan Singh and Dinesh Khanka. He saw all four of them eating and drinking at around 11:00 p.m.”

9. This witness further stated that “after the food and drinks were finished, people continued dancing to DJ music until about 12:00 to 12:15 a.m. During the dance, he saw the deceased Sachin Lakheda, Makhan Singh, Dinesh Khanka, and the fourth person, along with other villagers, dancing to the DJ music.” He also stated that he was mentally disturbed, indicating that he was not in a sound state of mind, which indicates that he had something weighing on him, so he went to sleep,and thereafter, he had no recollection of what transpired.

10. PW-4 Vishni Devi is another last-seen prosecution witness; she was among the witnesses who, for the last time saw the deceased with the accused. This witness stated in her examination-in-chief, "On the night of the wedding, the feast continued until around 1:00 AM. At that time, while she was about to place the “dal” on the furnace, she saw Dinesh Khanka, Mohan Kothiyal, and Sachin walking past from behind. Sachin called out to her, saying, 'Aunty, don’t fall.' She responded, 'Son, I am going safely.' After that, they went on their way, and she returned inside after completing her task.”

11. It is pertinent to mention that they invited Dinesh Khanka and Mohan Kothiyal. They went with the marriage procession, returned with the marriage procession, and then went back to their home. This witness also stated that she saw Sachin at her home until 1:00 AM while the DJ was still on. She saw him dancing but did not know if he was drunk.

12. PW-4 also stated in paragraph 15 of her cross-examination that they had invited Dinesh Khanka and Mohan Kothiyal, who accompanied the wedding procession, returned with it, and thereafter returned to their home. However, this witness has given inconsistent statements in her examination-in-chief and cross-examination, making it unclear whether the deceased, Sachin Lakheda, was following the accused or was merely dancing to the DJ music at their residence until 1:00 AM.

13. The prosecution also examined PW-6 Rahul Singh, yet another last-seen witness who is supposed to have witnessed the deceased with the accused while he was still alive. Rahul Singh was the person who had arranged the DJ at Mangal Singh's house. In his examination-in-chief, this witness stated, "The witness stated that he saw the accused, who are present before the Court, along with the deceased, Sachin Lakheda, dancing between 11:30 PM and 12:00 midnight. He further deposed that after 12:00, he did not see the accused again but noticed Sachin still sitting in the house even after the accused had left. According to the witness, Sachin remained there for approximately half an hour after their departure.”

14. The three witnesses examined above have provided different statements regarding how long the deceased, Sachin Lakheda, danced at the DJ. PW-3 Sunil Kaintura stated that he saw the deceased and the accused dancing from 12:00 to 12:15 AM, whereas PW-4 Vishni Devi stated that she saw the deceased dancing until 1:00 AM. PW-6 Rahul Singh stated that he saw the deceased and the accused dancing from 11:30 to 12:00 AM. PW-3 Sunil Kaintura also mentioned that he went to sleep between 12:00 and 12:30 AM and did not know what happened after that. Therefore, this witness did not state that he saw the deceased with the accused for the last time, as he clearly testified that he went to sleep after that and did not know what happened afterwards.

15. PW-14 Jai Singh and PW-16 SI Neeraj Kumar have been examined in relation to the so-called “illegal relationship” between the deceased and the sister of the accused, Dinesh Khanka. PW-14 Jai Singh stated in his examination-in-chief that “The witness stated that it came to his knowledge that the deceased, Sachin Lakheda—who is present before the Court—used to communicate over the mobile phone with Reena Khanka, the sister of accused Dinesh Khanka. He further stated that at the relevant time, Reena Khanka was residing in Dehradun.

16. The court has considered the statements made by PW-16 SI Neeraj Kumar, the investigating officer in this case. In his examination- in-chief, the witness stated that Sachin Lakheda had contacted the SOG and the call details of mobile number xxxxxx6303 were checked. The call details of Reena Khanka's mobile number were then matched with the number xxxxxx2340, with the calls between the two marked in yellow on the call detail analysis (CDA).

17. It is pertinent to note that while the investigating officer mentioned that the deceased, Sachin Lakheda, was involved in multiple relationships with women, including Reena, the court recognises that no witness has directly stated that the deceased was having an illicit relationship with Dinesh Khanka’s sister, Reena. The officer himself clarified during cross-examination that this information was derived from his analysis of the call records, where multiple women, including Pushpa, Shakuntala, and Reena, were found to be in contact with Sachin Lakheda. However, the witness emphasised that he had not extracted call details from the women’s phones but only from Sachin Lakhera’s phone. Furthermore, it was noted that this finding does not constitute direct witness testimony but rather a conclusion based on the call data analysis.

18. PW-18 Ravindra Kumar has stated in his main examination that "Reena Khanka's son Vishal Singh Khanka, the mobile number of deceased Sachin Lakheda was XXXXXX6303 and the mobile number of Reena Khanka was XXXXXX3240 and XXXXXX1995 but the ID of

mobile no. XXXXXX1995 was in the name of Ms. Shakuntala, and the ID of the other mobile no. XXXXXX2340 was in the name of Ajit Singh."

19. This witness has also stated that according to the call details, Reena Khanka talked to the deceased 84 times at different times and a day prior to the incident on 27.11.2014, Reena Khanka talked to the deceased 4 times.

20. On 27/11/2014, deceased Sachin Lakhera came to the rented room of Reena Khanka in Dehradun, where she lived alone, and also returned with her after 2 hours.

21. Apart from this, PW-1 Vijay Raj Lakheda, who is the plaintiff in the case, has stated in his own cross-examination that till date, “I am not sure that the accused have kidnapped and murdered my brother." PW-2 Mrs. Anju Lakheda is the wife of the deceased, who could have been an important witness regarding the conduct and character of the deceased. This witness has not made any statement regarding the character of her husband. This witness has stated in cross- examination that "despite the charge sheet being received after the police investigation, we were not satisfied with the investigation as the real accused were not caught and in this regard a letter was also sent to the district administration and the minister etc. and it seemed that the real accused were saved."

22. The Court has also considered the illogical and baseless reasoning advanced by the prosecution in attributing a motive for the murder of the deceased, Sachin Lakheda. The prosecution's theory of motive is said to be the alleged illicit relationship between the deceased and the sister of the accused, Dinesh Khanka. It is stated that, during the investigation, it was found that the deceased and the said woman were involved in such a relationship and that they had exchanged 84 calls with each other. However, to base the case on such a perverse theory undermines the dignity of individuals and brings into focus matters that should not have been highlighted in the first place.

23. The prosecution has gone so far as to disclose the identity of the woman involved, which amounts—both directly and implicitly— to character assassination, not only of the deceased but also of the person with whom he was allegedly linked, by using the objectionable term “illicit.” This aspect further diminishes the respect and reputation of the deceased, his family members, and his close relations, particularly in a rural social environment.

24. The trial court further noted the absence of any forensic evidence linking the accused to the crime. There was no DNA analysis, fingerprint evidence, or blood sample connecting the accused to the crime scene or the dead body. The unexplained delay in lodging the FIR and the significant time gap between the disappearance of the deceased and the recovery of the body were also held to be factors creating doubt about the veracity of the prosecution case.

25. The carcass of the deceased was found 41 days after he went missing, in an obscure location far from the place where he was last seen alive and even further from the location where his vehicle, a Maxx bearing registration number UA-07-Y-0199, was found parked. It is indeed strange that the entire body of the deceased had decomposed into a carcass, and that too not in one piece, but disintegrated into various parts and pieces. This Court fails to understand how the 'viscera' was collected in such a state, and how the recovery of the deceased’s remaining belongings was contemplated or carried out.

26. On these grounds, this court is of the opinion that the trial court rightly concluded that the prosecution failed to establish a continuous and unbroken chain of circumstances leading to the sole conclusion of guilt. Consequently, the accused were acquitted, having been given the benefit of the doubt.

27. In an appeal against acquittal, it is settled law that the scope of interference is limited. The appellate court can reappreciate the evidence, but only when the findings of the trial court are perverse, unreasonable, or based on a misreading of evidence. In Chandrappa v. State of Karnataka, (2007) 4 SCC 415, the Hon’ble Supreme Court summarized that unless the view taken by the trial court is not possible at all, the appellate court should not interfere with an order of acquittal.

28. It is also well settled that once an accused is acquitted, a double presumption of innocence operates in his favour, he is initially presumed innocent until proven guilty and further reinforced by the acquittal. Interference is justified only when the acquittal is manifestly illegal, capricious, or wholly unsupported by evidence.

29. In the present case, the entire case rests on circumstantial evidence. The principles laid down in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 require that the circumstances relied upon by the prosecution be conclusive and form a complete chain that rules out every other hypothesis except the guilt of the accused.

30. The Supreme Court in Kehar Singh v. State (Delhi Administration), (1988) 3 SCC 609, held that circumstantial evidence must be so conclusive that it excludes every other reasonable hypothesis except the guilt of the accused. Any missing link in the chain of circumstances would render the case weak and entitle the accused to the benefit of the doubt.

31. Similarly, the Supreme Court inHanumant Govind Nargundkar v. State of Madhya Pradesh, (1952) SCR 1091, held that in cases based on circumstantial evidence, the prosecution must establish each fact beyond reasonable doubt and ensure that all circumstances are consistent only with the guilt of the accused. If any reasonable doubt arises or an alternative explanation exists, the accused is entitled to acquittal.

32. The so-called last-seen theory is not sufficient on its own to sustain conviction unless the time gap between the last sighting and the death is so narrow that the possibility of any third person’s involvement is ruled out. In Nizam v. State of Rajasthan, (2016) 1 SCC 550 the Hon’ble Supreme Court held that unless the last-seen theory is corroborated by strong circumstantial or forensic evidence, it cannot be the sole basis for conviction. The Hon’ble SC in Kanhaiya Lal v. State of Rajasthan (2014) AIR SCW 1828 held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime.

33. In the present case, the time gap between when the deceased was allegedly last seen with the accused and the discovery of the body is significant. Additionally, the prosecution has not produced any medical, forensic, or corroborative evidence to eliminate alternative hypotheses.

34. Considering the totality of the evidence and the law applicable, we are of the opinion that the findings recorded by the trial court are not perverse or illegal. On the contrary, they appear to be a plausible and reasonable view of the evidence. Government Appeal No.5 of 2021

35. We, therefore, find no compelling reason to grant leave to appeal in this case. The application for leave to appeal is accordingly rejected.

36. As a result, the Government Appeal stands dismissed at the threshold. Manoj Kumar Tiwari, J Dated:19.03.2025 NR/ (Ashish Naithani, J.)