Har Singh vs State Of Uttarakhand

1. These three appeals arise out of the

judgment and order dated 1st December, 2004,

passed by the Uttaranchal High Court

dismissing the appeal filed by the

appellants herein (Criminal Appeal No. 2

851/01) against the judgment and order of

the Sessions Judge, Almora, in ST No.36 of

1987, convicting the appellants under

Sections 302/34, 201/34 and 394 Indian Penal

Code. One of the accused, Ratan Singh, died

during the trial which abated against him

and continued against the other accused

persons.

2. According to the prosecution, on 26th

February, 1987, the deceased Bhupal Singh @

Joga Singh of village Sain Bagaria, District

Almora, Uttaranchal, went to the Mela held

at village Dabra on the occasion of Shiv

Ratri along with his wife and two children.

He had taken an amount of Rs.3,000/- with

him for purchasing two bullocks and a goat.

While at the Mela, he met Gusain Singh and

remained at the Mela with his wife and

children till 4.30 p.m. when he sent them 3

back to their village after telling them

that he would return on the next day.

Thereafter, Bhupal Singh and Gusain Singh

came back to the Mela and found several

persons, including the accused Mohan Singh,

Har Singh, Ratan Singh and Lachham Singh,

gambling in front of the tea stall of one

Bhuwan Singh. Bhupal Singh also joined in

the gambling and won Rs.200/- from Mohan

Singh and Rs.600/- from Lachham Singh. When

it started to get dark, Bhupal Singh stopped

gambling as he had to go to Village Bhaisora

with Gusain Singh.

3. It was also the prosecution case that the

above-named accused persons followed Bhupal

Singh and asked him to continue the gambling

so that they could have a chance to recover

the money which they had lost. In the

alternative, they asked Bhupal Singh to 4

return the money which he had won in the

gambling in front of the tea stall of Bhuwan

Singh. Bhupal Singh refused to listen to

either of the two proposals. Thereafter,

accused Mohan Singh allegedly lifted Bhupal

Singh and threw him on the ground with

force. When Gusain Singh tried to intervene

in an attempt to save Bhupal Singh, he was

also threatened by the accused as a result

whereof he ran away from the place. He has,

however, come out in his evidence with the

statement that while fleeing the place he

had hidden in a nearby wheat field from

where he heard Bhupal Singh requesting the

accused not to kill him and subsequently

even the said sounds ceased. When Bhupal

Singh did not return to his house even after

the second day, his mother, Smt. Chana Devi

and Shri Soor Singh came to Gusain Singh's

house on the third day to enquire about him. 5

Gusain Singh is reported to have told them

about the entire incident and then all of

them went to the place of occurrence, known

as Khuti Aam, to search for the body of

Bhupal Singh, but the same could not be

found. Thereafter, a written complaint was

filed by Smt. Chana Devi at Bhatroajkhan

Police Station on 2nd March, 1987.

4. On the basis of the said complaint

investigations were commenced and Mohan

Singh was arrested after interrogation. At

Mohan Singh's instance Bhupal Singh's dead

body was recovered in the presence of

witnesses. The other accused were also

arrested and the body of the deceased was

sent for post-mortem, which was conducted by

Dr. S.N. Srivastava, Medical Officer, Civil

Hospital, Ranikhet, on 4th March, 1987.

During the post mortem examination the 6

following injuries were found on the body of

the deceased:

"1. Sharp cut wound on left side of face extending to lower jaw left. Mandible cut sharp, edge on bone seen, blood clots in an area 8 cm x 4 cm. Maggots were present.

2. Sharp cut would on right side of forehead extending through temple and just above right ear 6 cm x 4 cm. Blood clots present. Sharp edge of temple bone and parietal bone seen. Maggots were present.

3. Contusion and abrasion on the left side of chest, 4 cm below nipple, area 5 cm x 4 cm.

4. Contusion on the left side of chest 2 cm medial to injury no.3, area 4 x 2 cm.

5. Contusion and abrasion, just below right knee, area 4 cm x 3 cm.

6. Contusion on the left wrist ventral surface, area 3 cm x 2 cm."

5. After completion of the investigation a

charge-sheet was filed and the accused-

appellants were sent for trial. 7

6. Relying on the evidence of PW 1, Gusain

Singh, who was accompanying the deceased at

the time of the incident, the evidence of PW

5, Smt. Chana Devi, mother of the deceased,

who lodged the First Information Report, the

evidence of PW 2, Bhuwan Singh, before whose

shop the gambling was conducted, Soor Singh,

PW 6, who claimed to be present when

appellant-Mohan Singh stated that he could

point out the place from where the body of

the deceased could be recovered, and PW 9,

Kamrool Haq, who was present when the body

of the deceased was recovered, the trial

Court came to the conclusion that the

prosecution had been able to prove its case

against the appellant beyond all reasonable

doubt.

7. The High Court, on a reappraisal of the

evidence, confirmed the decision of the 8

trial Court and upheld the conviction of the

appellants herein.

8. On behalf of the appellants an attempt was

made to convince this Court that from the

materials on record there is nothing to

connect the appellants with the commission

of the offence. Even Gusain Singh (PW 1),

who was allegedly accompanying the deceased

and was produced as an eye-witness, had

clearly stated that he had not seen the

actual murder of the deceased but had only

heard the shrieks of the deceased requesting

the appellants not to kill him and that the

said shrieks finally ended. It was,

therefore, suggested that in the absence of

any evidence to connect the appellants with

the commission of the offence, both the

Trial Court and the High Court had erred in

convicting the appellants under Sections 302 9

and 201 read with Section 34 IPC and Section

394 IPC.

9. An attempt was also made to show that the

evidence of PW 6, who was allegedly present

both when Mohan Singh has stated before the

Investing Officer that he could locate the

body of the deceased and also when the body

was recovered, did not indicate that the

said body was recovered at the instance of

accused Mohan Singh. Learned counsel tried

to convince the Court that the accused had

only been taken to the place of occurrence

and that during the search which was

conducted, the body was recovered, but not

at the specific instance of Mohan Singh. In

other words, learned counsel tried to

establish that the recovery of the body was

not at the instance of Mohan Singh, but in

his presence.

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10.We are not convinced with the submissions

advanced on behalf of the appellants who

were convicted mainly on the basis of

circumstantial evidence and the evidence of

PWs 1, 2, 5, 6 and 9 in support thereof. It

has been well established that the deceased

and the accused were involved in gambling in

front of the tea stall of PW 2, Bhuwan

Singh, and that when the deceased and PW 1,

Gusain Singh, left the place where the

gambling was being conducted they were

followed by the accused persons. From the

evidence of PW 1, Gusain Singh, it is also

established that the accused persons

assaulted the deceased and when he tried to

intervene he was threatened and was made to

leave the place, though he heard the

deceased requesting the accused persons not

to kill him from the nearby wheat field. 11

11. The events upto the assault of the deceased

were found to have been established by both

the Courts below. In addition, the

circumstances also establish the fact that

the accused and the deceased were last seen

together by PW 1 and he was killed soon

thereafter. The post-mortem report clearly

indicates that the body had started

decomposing and that maggots were found on

the body. It has to be kept in mind that

while the date of occurrence is 26th

February, 1987, the First Information Report

was filed by PW 5, Smt. Chana Devi on 2nd

March, 1987, the body of the deceased was

recovered on 3rd March, 1987, and the post-

mortem was conducted on 4th March, 1987. In

other words, between Bhupal Singh's death

and the post-mortem conducted, almost a week

had elapsed which fact stands corroborated 12

from the state of the body at the time of

post-mortem examination.

12.The last and, in our view, the crucial

circumstantial evidence was recovery of the

body of the deceased. Although, an attempt

was made to raise doubts as to whether PW 6

and PW 9 had actually seen the accused Mohan

Singh pointing out the location from which

the dead body could be and was subsequently

recovered, since both the courts below have

accepted the said evidence and there were no

other intervening circumstances, there is no

reason for us to discard the same.

13.In that view of the matter, we find no

reason to interfere with the judgment of the

High Court and the Appeals are, therefore,

dismissed.

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...................................................J. (ALTAMAS KABIR)

...................................................J. (MARKANDEY KATJU)

New Delhi Dated:18.09.2008