Research › Search › Judgment

Uttarakhand High Court · body

2022 DIGILAW 228 (UTT)

Vikas Kathait v. State of Uttarakhand

2022-07-26

ALOK KUMAR VERMA, SANJAYA KUMAR MISHRA

body2022
JUDGMENT : (Alok Kumar Verma, J.) 1. The present Criminal Appeal has been filed by the appellant against the judgment dated 31.10.2013, passed by the learned 1st Additional Sessions Judge, Rishikesh, District Dehradun in Sessions Trial No.178 of 2006, “State vs. Vikas Kathait”, by which, the appellant has been convicted and sentenced to undergo imprisonment for life along with a fine of Rs.60,000/- for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (in short, “IPC”), and, he has been further convicted and sentenced to undergo rigorous imprisonment for a period of five years along with a fine of Rs.5,000/- for the offence punishable under Section 201 read with Section 34 IPC. 2. Briefly stated the prosecution case as it emerges from re-appreciation of the evidence on record is that on 04.08.2006, one Shiv Prasad Singh (PW1) informed the Police Chowki I.D.P.L. through telephone no.2454100 that opposite to Gali No.5, nearby the railway track, a dead body of an unknown person is lying, which is in nude condition and headless. On the said information, Sub-Inspector Sheeshpal (PW17) along with Head Constable Dalbir Singh, Constable Vijay Kumar and Constable Praveen Kumar left for the spot. The higher officers were given information through telephone and RT set. The said information was entered in General Dairy No.11 at 9 o’clock and a Case No.98 of 2006 was registered against unknown person. Sub-Inspector Sheeshpal Singh inspected the spot. The inquest proceedings of headless body of the deceased was conducted on 04.08.2006 (inquest report Ext. Ka7). Manoj Uniyal (PW2) identified the dead body as his friend Deepak Badoni. The head of the deceased was found on 06.08.2006. The inquest proceeding of the head was conducted on 06.08.2006 (inquest report Ext. Ka22). The post-mortem examination of the headless dead body was conducted on 04.08.2006 and the post-mortem examination of the head of the deceased was conducted on 06.08.2006. 3. During the investigation, it came to knowledge that Vikas Kathait alias Vikki R/o Dhalwala is suspect, as an agreement had been entered into between Vikas Kathait and the deceased Deepak Badoni as regards transaction of money, in which Vikas Kathait had to pay Rs.75,000/- to the deceased. On the basis of suspicion, the appellant was searched and arrested on 06.08.2006. 4. The appellant confessed his guilt. On the basis of suspicion, the appellant was searched and arrested on 06.08.2006. 4. The appellant confessed his guilt. The confessional statement of the appellant led to the recovery of a pant, a shirt, a handkerchief, a belt, shoes of the deceased and a Kukri, a sharp edged weapon, used in the crime. The recovered articles were sent to the Forensic Science Laboratory. The appellant identified the head of the deceased. During the investigation, the name of one Kaushal Tyagi was also came into light as an accused. After completion of the investigation, the Investigating Officer filed the charge-sheet (Ext. Ka26) against the present appellant along with Kaushal Tyagi. 5. The case was committed to the Court of Session. 6. The charges under Section 302 read with Section 34 IPC and Section 201 read with Section 34 IPC were framed. The appellant pleaded not guilty and claimed to be tried. 7. The co-accused Kaushal Tyagi had absconded during the trial, so his file was separated. 8. The prosecution, in order to establish the charges, examined twenty witnesses. 9. Statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure, 1973. He denied all the incriminating evidence against him. 10. The appellant has not adduced any defence evidence. 11. The learned trial court heard the arguments, appreciated the evidence and passed the impugned judgment. 12. Aggrieved by the judgment and order of conviction and sentence, awarded by the learned trial court, the appellant appealed to this Court. 13. We heard the learned counsel for both the parties and have carefully assessed the evidence, adduced by the prosecution. 14. PW1 Shiv Prasad Singh stated that he had informed the police that a dead body of an unknown person in nude condition and headless was lying nearby the railway track. 15. PW2 Manoj Uniyal and PW3 Mukesh Panuli had identified the dead body. 16. PW4 Smt. Chandrakala is mother of the deceased and PW5 Smt. Anita is sister of the deceased. According to these two witnesses, the deceased had to take his Rs.50,000/- from the appellant, for which he had gone from his house on 03.08.2006 at 05:00 p.m. According to the witness Smt. Chandrakala (PW4), the deceased had received a phone call of the appellant at 05:00 p.m. and after that he went with the appellant. 17. According to these two witnesses, the deceased had to take his Rs.50,000/- from the appellant, for which he had gone from his house on 03.08.2006 at 05:00 p.m. According to the witness Smt. Chandrakala (PW4), the deceased had received a phone call of the appellant at 05:00 p.m. and after that he went with the appellant. 17. PW6 Arun Kumar Bansal and PW7 Sarvajeet Yadav are witness of inquest proceedings. 18. PW8 Pankaj Juglan stated that a pair of socks of the deceased was recovered. 19. PW9 Anupam Upadhyay stated that the appellant had taken Rs.75,000/- from the deceased. 20. According to the prosecution, PW10 Bhagwati Prasad and PW11 Surajmani Kanswal are witness of the recovery. These witnesses did not support the prosecution case. 21. PW12 S.S.I. Deewan Singh, PW15 Inspector Vijay Chand Gusain, PW16 S.S.I. R.S. Aswal and PW17 S.I. Sheeshpal Singh are the witnesses of the recovery. 22. PW13 Dr. Yatindra Singh conducted the postmortem examination of the head of the deceased on 06.08.2006. He proved the post-mortem report (Ext. Ka15). 23. PW14 Dr. Manu Jain conducted the post-mortem examination of the headless dead body of the deceased on 04.08.2006. The post-mortem report (Ext. Ka16) has been proved by this witness. According to this witness, the following anti-mortem injuries were found on the dead body:- Injury No.1 – Incised wound on the left hand, measurement was 3 X 2 cm, which was on the second bone of the hand. In addition to it, one incised wound 3 cm X 2 cm on the thumb of the left hand and both wounds were bone deep. Injury No. 2 – Scratch, right side of the chest 3 cm X 1 cm, five centimeter below nipple. Injury No. 3 – Incised wound on the neck of the upper part, on which the head was not available, whose roundness was 3 cm X 10 cm. The tissues of the neck were cut. The edges of this wound were clean-cut, which was cut in level. 24. According to the prosecution, the witness Prabhakar (PW18) saw the deceased with the appellant. But, this witness did not support the prosecution case. 25. PW19 Constable Uday Kumar stated that on 04.08.2006, he received an information of recovery of headless dead body. He recorded the said information in the General Dairy. 26. 24. According to the prosecution, the witness Prabhakar (PW18) saw the deceased with the appellant. But, this witness did not support the prosecution case. 25. PW19 Constable Uday Kumar stated that on 04.08.2006, he received an information of recovery of headless dead body. He recorded the said information in the General Dairy. 26. PW20 Constable Sunil Kumar Jugran proved the site plan of the place of the crime and the charge-sheet in the handwriting of Bhagat Singh Rawat, the Investigating Officer. 27. The present case rests on circumstantial evidence and when a case rests on circumstantial evidence, such evidence must satisfy these tests:- (i) The circumstances from which the conclusion of guilt is to be drawn, should be fully established. (ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, he should not be explainable on any other hypothesis except that the accused is guilty. (iii) The circumstances should be of a conclusive nature. (iv) There must be a chain of evidence to show 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 probabilities, the act must have been done by the accused. 28. The principle of circumstantial evidence has been reiterated by the Hon’ble Supreme Court in a plethora of cases. In C. Chenga Reddy vs. State of A.P., (1996) 10 SCC 193 , the Hon’ble Supreme Court observed, “In a case base on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances, must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.” The same principles were reiterated by the Hon’ble Supreme Court in Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 , Mohd. Arif alias Ashfaq vs. State (N.C.T. of Delhi), (2011) 13 SCC 621 , Sunil Clifford Daniel vs. State of Punjab, (2012) 11 SCC 205 and a number of other decisions. 29. Arif alias Ashfaq vs. State (N.C.T. of Delhi), (2011) 13 SCC 621 , Sunil Clifford Daniel vs. State of Punjab, (2012) 11 SCC 205 and a number of other decisions. 29. The circumstances, which are pressed into service to fasten the guilt on the appellant are, as follow:- (i) That the appellant had confessed his guilt. (ii) That a pant, a shirt, a handkerchief, a belt, shoes of the appellant and a Kukri, used in the crime, were recovered at the instance of the appellant. (iii) That the deceased had to take his Rs.50,000/- from the appellant for which he had gone from his house on 03.08.2006 at 05:00 p.m. after receiving a phone call from the appellant and this is the motive. 30. Section 25 of the Indian Evidence Act is broadly worded and it excludes from evidence a confession made by the accused to a police officer under any circumstances and a confession made by a person while he was in the custody of the police is also inadmissible under Section 26 of the Indian Evidence Act unless made in the immediate presence of a Magistrate. 31. According to the prosecution, a pant, a shirt, a handkerchief, a belt and shoes of the deceased and a Kukri, used in the crime, were recovered at the instance of the appellant. The case of the prosecution is that these articles were recovered in presence of the witness Bhagwati Prasad (PW10) and the witness Surajmani Kanswal (PW11), but, these witnesses did not support the prosecution case. 32. In invoking the provisions of Section 27 of the Indian Evidence Act, the Court should be very vigilant to ensure the credibility of the evidence. In the present matter, the public witnesses of the alleged recovery did not support the prosecution case, whereas, the statements of the witnesses of police regarding the said recoveries do not inspire confidence. In Satpal vs. State of Haryana, 2018 (2) CCSC 1104 (SC), the Hon’ble Supreme Court held that any recovery on the basis of confession, under Section 27 of the Indian Evidence Act, cannot form the basis for conviction. 33. According to the report of the Forensic Science Laboratory dated 21.11.2006 (Ext. Ka27), blood was found on the pant, shirt, belt, handkerchief and shoes, but, this fact alone would not lead to the conclusion that the appellant had committed the crime. 33. According to the report of the Forensic Science Laboratory dated 21.11.2006 (Ext. Ka27), blood was found on the pant, shirt, belt, handkerchief and shoes, but, this fact alone would not lead to the conclusion that the appellant had committed the crime. The prosecution has not produced any evidence that the said blood belonged to the deceased, whereas, according to the said report of the Forensic Science Laboratory, blood was not found on the Kukri. 34. Though, motive is an important element in commission of the offence, but conviction cannot be based on the motive alone. The existence of motive is only one of the circumstances to be kept in mind while appreciating the evidence adduced by the prosecution. In the present matter, the prosecution has failed to produce any cogent and reliable evidence that any phone call of the appellant was received by the deceased on 03.08.2006 at 5:00 p.m. 35. In Bhagwan Singh and Others vs. State of M.P., (2002) 4 SCC 85 , the Hon’ble Supreme Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other of his innocence, the view which is favorable to the accused should be adopted. 36. It is also a basic rule of the criminal jurisprudence that suspicion, however, strong cannot take place of proof. In Sujit Biswas vs. State of Assam, AIR 2013 SC 3817 , the Hon’ble Supreme Court held that 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. 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. 37. Although, injuries, including incised wounds, were found on the dead body of the deceased and the death of the deceased was homicide, the prosecution has to prove that the death of the deceased was caused by the appellant and in all human probabilities, the act must have been done by the appellant only. Even grave suspicion cannot take place of proof. There is no positive, cogent and any reliable evidence placed on record against the appellant by the prosecution to prove its case against him. 38. As a result, we accept the case of the appellant. Accordingly, the appeal is allowed. The impugned judgment of the conviction and the sentence dated 31.10.2013, passed by the learned 1st Additional Sessions Judge, Rishikesh, District Dehradun in Sessions Trial No.178 of 2006, “State vs. Vikas Kathait”, is set aside. The appellant is acquitted of the charge under Section 302 read with Section 34 IPC and Section 201 read with Section 34 IPC.