State of Uttarakhand v. Mr. D.C.S. Rawat, Advocate for the

person has tried to wipe out the blood. According to the FIR, PW 1 Surendra Kumar was told by the persons present there that in the previous night, the deceased, the appellant and Khim Singh Kafaliya had meals together. There were bloods stains on the railing of stairs to the first floor. In the first floor room (“the room”), the cot was broken. There was blood around. Based on this report lodged by PW 1 Surendra Kumar, Case Crime No. 2 of 2017 was lodged at 3 Revenue Police Station Pali, District Almora under Sections 302, 201 IPC and Section 3(2) (v) of the SC/ST Act against the appellant.

4. The room at the first floor was sealed. Articles were taken into possession by the forensic expert. A site plan was prepared. The inquest of the dead body was prepared on the same day. The post-mortem of the body was conducted on 21.04.2017. According to the doctor, the cause of death was ‘head injury, which was caused by a blunt object’. The following injuries were also noted on the person of the deceased:- “(a) Fracture of scalp. There were fractures in temporal (b) (c) (d) (e) (f) (g) (h) bone and occipital bone. Bruises on left arm and right chest. Abrasions on face. Fracture in right ulna, right radius and right mandible. Incised would 2.5 x 2.5 cm. on right pinna. Contusions almost on all the body, which is known as post-mortem lividity. All internal organs were normal except the brain. Hematoma in temporal area measuring about 3 x 5 cm in frontal part of brain. 1 x 3 cm hematoma in right occipital area. There was blood in entire brain, which generally is not found.”

5. Articles were sent for forensic examination. Forensic report was also received, which confirmed that on the blood stains, which were detected from the room, the DNA of the deceased was detected, except one polythene bag, which was collected from the room, which had DNA of some other human male source.

6. After investigation, the charge sheet was submitted against the appellant under Sections 302, 201 IPC and Section 3(2)(v) of the SC/ST Act. 4

7. On 31.03.2017, charges under Sections 302, 201 IPC and Section 3(2) (v) of the SC/ST Act were framed against the appellant, to which the appellant denied and claimed trial.

8. In order to prove its case, the prosecution examined as many as 17 witnesses, namely, PW 1 Surendra Kumar, PW 2 Smt. Beena Devi, PW 3 Kamal Kumar, PW 4 Khimanand Paliwal, PW 5 Anand Prasad, PW 6 Vinod Singh Birodiya, PW 7 Khim Singh Bisht, PW 8 Uma Pati Pandey, PW 9 Pooran Ram, PW 10 Diwan Singh, PW 11 Krishna Kumar, PW 12 Shyam Lal Verma, PW 13 Jagdish Prasad, PW 14 Arjun Singh, PW 15 Bahadur Singh Kumalta, PW 16 Dr. Pramod Kumar and PW 17 R.S. Toliya.

9. After the prosecution evidence was over, the appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (“the Code”). According to him, the witnesses have given false evidence against him. In his defence, he examined Dr. B.B. Joshi as DW1 and Umed Singh as DW 2.

10. After hearing the parties, by the impugned judgment and order the appellant has been convicted under Sections 302, 201 IPC and Section 3(2) (v) of the SC/ST Act and sentenced as stated hereinbefore.

11. Learned counsel for the appellant submits that the prosecution has utterly failed to prove the case beyond reasonable doubt against the appellant; he has only been convicted on the ground that the room belongs to the appellant, where the blood of the deceased was detected. He submits that it has not been proved 5 that the room belongs to the appellant. It is argued that, in fact, merely on hearsay evidence and uncorroborated testimonies, the conviction is based, therefore, the impugned judgment and order deserves to be set aside. He refers to the statements of the witnesses in support of his contentions.

12. Learned State Counsel submits that a few things are admitted, namely, that the death was homicidal; the room was a residential room of the appellant where the blood of the deceased was detected on multiple articles. He also raised the following points in his submissions:- (i) PW 2 Smt. Beena Devi has stated that the deceased was staying in the house of PW 5 Anand Prasad. She has also stated that the house and the office of the deceased was in the same building; PW 5 Anand Prasad has also stated that the deceased was his tenant, which was a separate building; the building of the Horticulture Department was also separate. (ii) The appellant in his examination under Section 313 of the Code, in answer to Question No. 12, has stated that the deceased was staying in the house of PW 5 Anand Prasad. (iii) In the building of Horticulture Department, there was one room for the office and one room was vacant; the appellant was the sole caretaker of the building. (iv) The appellant was either residing in the room, where the blood of the deceased was detected or, 6 at least, it was within his specific knowledge as to who was residing in that room. Therefore, the burden to prove this fact is on the appellant under Section 106 of the Indian Evidence Act, 1872 (“the Evidence Act”). (v) During investigation, the appellant had never disputed that the room, from which various articles were taken into custody by the forensic expert PW 14 Arjun Singh, did not belong to the appellant. Referring to the statement of PW 5 Anand Prasad, he would submit that he is the first witness, who reached at the spot and saw the appellant moving upstairs with a jerrycan in his hand. He would submit that this fact indicates that that the appellant was moving to his residence, which was situated at the first floor of the building of the Horticulture Department so as to wipe out the fresh blood, which was present there.

13. Learned counsel for the informant also submits that the prosecution has been able to prove its case beyond reasonable doubt; the chain is complete. He also raised the following points in his submissions:- (i) The presence of the appellant at the place of incident is not disputed; he himself has admitted that he made a telephone call to the Village 7 Pradhan; thereafter, many persons reached at the spot. (ii) PW 2 Smt. Beena Devi, the wife of the deceased, has stated that the appellant used to abuse the deceased with caste coloured remarks, which is the motive to eliminate the deceased. (iii) It is argued that the prosecution has been able to prove its case beyond reasonable doubt that the room belonged to the appellant and none other. (iv) The injuries corroborate that the deceased was killed brutally. The mental condition of the appellant was also examined and he was found to be a fit person. (v) It is argued that all the circumstances have been discussed in detail by the court below, which is a reasoned order; it does not warrant any interference.

14. One of the basic principles of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt. A person may have killed someone is not a case proved beyond reasonable doubt. It should be with certainty that the person must have killed or has killed or, in fact, killed another person.

15. In the case of circumstantial evidence, in fact, each circumstance should be so interconnected so as to exclude every possibility of innocence of the person so charged. 8

16. In the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984)4 SCC 116, the Hon’ble Supreme Court has laid down five golden principles, which are applicable in the case of circumstantial evidence. In para 153 of the judgment, 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, it is a primary principle that the 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, 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.”

17. In fact, what is proof beyond reasonable doubt and what are those aspects, have been discussed in the case State of Karnataka v. J. Jayalalitha and others, (2017) 6 SCC 263. In para 9 222 to 224, the Hon’ble Supreme Court discussed the law on this point and observed as follows:- “Burden of proof and benefits of doubt

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 of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”

223. In Shivaji Sahabrao Bobade v. State Maharashtra [Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033] , Hon'ble Krishna Iyer, J., in his inimitable expressional felicity cautioned against the dangers of exaggerated affinity to the rule of benefit of doubt as hereunder : (SCC p. 799, para 6) “6. … The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author 10 (Glanville Williams in “Proof of Guilt”) has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated “persons” and more severe punishment of those who are found guilty.”

224. In Collector of Customs v. D. Bhoormall [Collector of Customs v. D. Bhoormall, (1974) 2 SCC 544 : 1974 SCC (Cri) 784] , this Court had observed (SCC p. 553, para 30) that in all human affairs, absolute certainty is a myth and the law does not require the prosecution to prove the impossible. It was highlighted that all that was required is the establishment of such a degree of probability that a prudent man may on this basis believe in the existence of the fact in issue. It was exposited that legal proof is thus not necessarily perfect proof and is nothing more than a prudent man's estimate as to the probability of the case.”

18. During the course of arguments, reference has been made to some of the statements given by the appellant in reply to the questions under Section 313 of the Code. It may be noted that the answers given by an accused in reply to the questions under Section 313 of the Code is not a substantial piece of evidence. At the most, it may lend credence to the evidence, which has already been established and proved by the prosecution.

19. In the case of Mohan Singh v. Prem Singh and another, (2002) 10 SCC 236, this aspect has been adverted to by the Hon’ble Supreme Court and in para 27 and 30, the Hon’ble Supreme Court observed as follows:- “27. The statement made in defence by the accused under Section 313 CrPC can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 of the Code of Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled that statement under Section 313 CrPC of the accused can either be relied in whole or in part. It may also be 11 possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. See Nishi Kant Jha v. State of