Allowed

Saurabh Bhatia v. State of Uttarakhand

Uttarakhand HC3 Mar 2022CRLA/374/2013

Case brief

AI extract

What is this about?

This criminal appeal challenged a murder conviction based on circumstantial evidence. The High Court acquitted the appellant, ruling that the prosecution failed to conclusively establish his presence at the scene, noting conflicting location data, lack of forensic signature matching, and absence of injuries suggesting murder.

What did the court decide?

The judgment and order dated 21.08.2013 are set aside, and the appellant is acquitted of the offence punishable under Section 302 of the IPC.

Saurabh Bhatia Vs State of Uttarakhand — Murder and Culpable Homicide | Uttarakhand HC (2022)

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IN THE HIGH COURT OF UTTARAKHAND AT AINITAL

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THE ACTING CHIEF JUSTICE SHRI SANJAYA KUMAR MISHRA

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AND

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JUSTICE SHRI RAMESH CHANDRA KHULBE

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CRIMINAL APPEAL NO.374 OF 2013

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3 rd MARCH, 2022

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Between:

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Saurabh Bhatia …… Appellant

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State of Uttarakhand …… Respondent

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Counsel for the appellant	: Mr. Arvind Vashisht, learned senior counsel assisted by Mr. Ajay Joshi, learned counsel.
Counsel for the respondents	: Mr. J. S. Virk, learned Deputy Advocate General along with Mr. Rakesh Joshi, learned Brief Holder for the State.

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Upon hearing the learned Counsel, the Court made the following

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JUDGMENT: (per the Justice Shri Ramesh Chandra Khulbe)

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This criminal appeal has been preferred against the judgment and order dated 21.08.2013 passed by the District and Sessions Judge, District-Tehri Garhwal in S.T. No.21 of 2012, State of Uttarakhand Vs. Saurabh Bhatia, under Section 374(2) of the Code of Criminal Procedure, 1973 ( hereinafter to be referred as ‘the Cr.P.C.’ ), whereby the learned Sessions Judge convicted the appellant under Section 302 of the IPC and sentenced him to undergo life imprisonment with a fine of Rs.5 lakhs (Rupees Five Lakhs) and in default of payment of fine to undergo two years’ R.I.

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Prosecution story, in brief, is that PW 1 Sharad Prakash submitted a report (Ex.Ka-1) at Police Station Muni Ki Reti, Tehri Garhwal on 05.06.2012 stating therein that he is the proprietor of hotel Shiv Ganga Tapovan. On 02.06.2012 at about 2:15 p.m. one lady aged about 23 to 24 years and one male person aged about 26 years came to hotel. The male person produced driving licence disclosing his name and address as Saurabh Bhatia of J- K-18A, NIT, Faridabad, DL number 7735/F/06 and mobile number 9711830715. He also made the entry in the register. The Manager, Mr Ashish Bhadri provided room number 15 to them. They had taken the dinner at 8:30 p.m. at their room as served by room boy Sanjeev. On 03.06.2012, at about 11:30 a.m., Saurabh came at reception to check out the room. The Manager returned his identity card but he did not check out the room and told that he will stay for one more day. Thereafter, they don't know where and when Saurabh had gone.

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On 05.06.2012, Mr. Sompal, the servant of the hotel informed about 10:00 a.m. that faul smell was coming out from room number 15 which was closed from inside. Then he along with other servants went to room number 15 but the room was closed from inside. No response of knocking the door and intercom call was received from the room. Accordingly, on suspicion, the Manager informed the incident to Police Station Tapovan. When the police team reached at the spot, they opened the door of the room by breaking it and found that the lady, who was with Saurabh, was hanging from the ceiling fan. There was a pool of blood in the room. The appellant, Saurav Bhatia was not there. It appeared that Sourabh had committed the murder and thereafter hanged the body of the deceased.

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On the basis of the said information chick FIR (Ex.Ka-46) was lodged. Accordingly, entry was made in the G.D.(Ex.Ka-47). After opening the door, the police called the forensic field unit. Inquest report (Ex.A-23) was prepared by S.I. Hemant Khanduri. The Investigating Officer, R.K. Kanaujia started investigation. He prepared Memo (Ex.A-42) for recovery of cold drink, bed sheet (Ex.A-43), mobile phone (Ex.A-41), ladies purse, sandals and other material (Ex.A-40). He also prepared site plan. After completion of the investigation, charge sheet (Ex.Ka-45) was submitted.

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After compliance of section 207 of the Cr.P.C, the concerned Magistrate committed the case to the Court of Sessions for trial. Accordingly, the concerned Court took the cognizance. Thereafter, the concerned Court framed the charge against the appellant for the offence punishable under Section 302 of the IPC but he pleaded not guilty and claimed trial.

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To prove its case, the prosecution examined PW1 Sharad Kumar Bhardwaj, PW2 Ashish Bhadri, PW3 Sanjeev Singh Panwar, PW4 Dr. Sanjay Karnwal, PW5 Rajesh Kumar, PW6 Jagdeep Kala, PW7 Govind Singh, PW8 Dr. Ajay Kumar Gairola, PW9 Dr.Sandeep Kumar Sharma, PW10 S.I. Hemant Khanduri and PW11 S.S.I. R.K. Kanaujia.

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Dr. Rohit Upadhyay, who was in the panel of doctors, who performed the autopsy on the body of the deceased, was also summoned as CW1.

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After completion of the prosecution's evidence, statement of the accused was recorded under Section 313 of the Cr.P.C.,in which he denied all the evidences produced by the prosecution.

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In defense, he produced Vivek Singh as DW1,

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Lokesh Kumar as DW2 and Hussain M. Zaidi as DW3.

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After hearing learned counsel for the parties, the trial Court found that the prosecution has successfully proved the charge of offence punishable under Section 302 of the IPC against the appellant-Saurabh Bhatia. Accordingly, the appellant was convicted and sentenced as mentioned above in paragraph no.1 of this judgment.

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Aggrieved by the judgment and order dated 21.08.2013, this criminal appeal has been preferred by the appellant/convict-Saurabh Bhatia.

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Admittedly, the case is based entirely on the circumstantial evidence. The circumstances relied upon by the learned Sessions Judge holding that they have been established cogently and firmly are as follows:-

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a. On the fateful night, the deceased and the accused were the only occupants of the hotel where the dead body was recovered;

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b. The fact that the photographs of the deceased were found in the mobile phone of the appellant.

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The Hon’ble Supreme Court in the case of “ Sharad Birdhichand Sarda vs State of Maharashtra ” reported in 1984 (4) SCC Page 116 has laid down five golden principles of appreciation of evidence in a case based only on circumstantial evidence. They are as follows: -

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a. the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established;

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b. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that

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is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

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c. the circumstances should be of a conclusive nature and tendency;

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d. they should exclude every possible hypothesis except the one to be proved; and

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e. 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.

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The most important aspect of circumstantial evidence is that the circumstance from which the conclusion of guilt is to be drawn, should be fully established. The Supreme Court has further held that the circumstance concerned ‘must or should’ and ‘not’ may be established. In other words, the prosecution, in a case based entirely on circumstantial evidence, must establish the circumstance conclusively.

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Now, the first circumstance that has been taken to have been proved by the learned Sessions Judge in this case is that on the fateful night, the deceased and the appellant were the ‘only occupants’ of the hotel room where the dead body was recovered.

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To establish this important circumstance, it is appropriate to re-assess the evidence of the witnesses to the incident.

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PW1 Sharad Prakash Bhardwaj, who is the informant, submitted the information (Ex.Ka-1) to the police and repeated the same story, as alleged in the FIR. 18. PW2 Ashish Bhadri stated that he was posted as Manager in Shiv Ganga Hotel.On 02.06.2012, when

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they were taking their meal, two persons came by Auto Rickshaw at the hotel and he allotted them room number 15 and made endorsement in the register. On 05.06.2012, he came to know that foul smell is coming from room number 15. He made a call by intercom but no response was received. Thereafter, he informed to the owner of the hotel and also informed to the police. The police reached at the hotel and opened the door of room number 15 by breaking it and saw that the lady, who was with the appellant, on 02.06.2012 is hanging by ceiling fan.

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PW3 Sanjeev Singh Panwar stated that he was a room boy at Hotel Shiv Ganga, Tapovan. He remained there since April, 2012 to June, 2012. Two customers stayed at room number 15. Now, he cannot identify these persons.

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PW4 is Dr. Sanjay Karnwal, who stated that, as per the instructions of Medical Superintendent, he went to New Tehri Jail to get hair sample and took the sample accordingly.

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PW5 Rajesh Kumar, is the Clerk, Licensing Authority, Transport Department, Faridabad, who was inquired about the DL No.7735/F/2006 which was produced at the time of booking the room at hotel Shiv Ganga, stated that, as per the record, the license was issued in the name of Manoj Kumar.

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PW6 Jagdeep Kala, stated that he was the Reception Manager of M/s Siddharth Hotel, Dehradun since 2006. On 02.06.2012, at about 7:00 p.m. a room of the hotel was booked in the name of Saurabh Bhatia. Room number 307 was allotted to him. The entry in the register was made by Saurabh Bhatia, which is Ex.A-10.

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PW7 Govind Singh, who is the father of the deceased, stated that his daughter was enticed away by Saurabh Bhatia on 01.06.2012 at about 7:00 p.m. On that day, he was on duty while his son Deepak was there. He also made phone call to her but it was out of service. On 06.06.2012, a phone call was received from Police Station Muni Ki Reti and informing him that dead body of a girl had been received. After receiving the said information, he reached at Police Station Muni Ki Reti and identified the dead body of his daughter. Accordingly, dead body of the deceased was handed over to him. Thereafter, he submitted a report to the Police Station, which is Ex.Ka-15.

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PW8 Ajay Kumar Gairola, who conducted the post-mortem along with Dr. Rohit Upadhyay and J.P. Nautiyal, prepared a report Ex.Ka-18.

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PW9 is Dr. Sandeep Kumar Sharma, who is the Scientific Officer, stated that on 05.06.2012 after receiving the information, he along with his team reached at the spot Shiv Ganga Hotel, Rishikesh and took the photograph of the spot, finger prints from the cloths, Samsung mobile and telephone receiver.

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PW10 SI Hemant Khanduri stated that, on 05.06.2012 after receiving the information, he reached at the spot and opened the door of the room number 15 by pushing it and found that there was a pool of blood on the floor and a lady was hanged on the ceiling fan. The inquest report was prepared. Thereafter, the dead body was sent for post-mortem. The accused was arrested on the information of the informer. A Samsung mobile was recovered from the accused wherein three photographs related to the deceased were found. Accordingly, memo of recovery was prepared, which is Ex.Ka-34.

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PW11 S.I. R.K. Kanaujia, who is the Investigating Officer, recorded the statement of the witnesses and after completion of the investigation submitted the charge sheet.

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Heard learned counsel for the parties and perused the entire evidence on record.

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PW1 Sharad Prakash Bhardwaj, who is the informant, submitted the information with the Police Station on 05.06.2012. On the basis of the said information, Chick FIR was lodged at Police Station – Muni Ki Reti, Narendra Nagar on the very same day. As per the evidence, when the appellant along with the deceased reached at the hotel, he was not present there. The appellant did not submit any document regarding identity in his presence. When his Manager and other members of the staff informed him on 05.06.2012 then he reached at the hotel. Accordingly, room number 15 was opened by the police in his presence where the dead body of the deceased was found hanging from the ceiling fan.

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PW2 Ashish Bhadri was the Manager on 02.06.2012, when two persons (one male and one female) reached at the hotel for getting room. Accordingly, he allotted room number 15 and made an endorsement in the register after taking the driving license.

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During the trial, the prosecution produced a register (Ex.Ka-2) related to Hotel Shiv Ganga. As per the register, there is an entry at serial number 3426 on 02.06.2012 at 2:14 p.m. There is a signature in “Signature of the Guest” column. It is the story of the prosecution that the appellant-Saurabh Bhatia made an

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entry in the register and in the last column he put his signature but the prosecution has failed to prove the signature and entry in the impugned register. Even the I.O. did not send the said document to the forensic lab for ascertaining the signature and hand-writing. While in the statement recorded under Section 313 of the Cr.P.C., the appellant has clearly denied the entry. The prosecution has failed to prove that on 02.06.2012 the appellant went to Hotel Shiv Ganga for booking the room. 32. PW2 Ashish Bhadri, who was the Manager at the relevant time, did not identify the appellant. PW3 Sanjeev Singh Panwar, who was the Room Boy, had clearly stated that he cannot identify the accused.

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As per the statement of PW6 Jagdeep Kala, who was the Manager-cum-Receptionist at Hotel Siddharth, Dehradun, Saurabh Bhatia booked the room number 307 in his hotel on 02.06.2012 at about 7:00 p.m.

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As per the prosecution’s story, the appellant produced his driving license at the time of booking the room in Hotel Shiv Ganga, Rishikesh. The prosecution produced PW5 Rajesh Kumar to verify the DL but as per his statement, the Driving License was not related to the appellant but it was related to one Manoj Kumar.

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As per the statement of PW9 Dr. Sandeep Kumar Sharma, he took the finger prints from Samsung mobile, telephone receiver and the glasses but there is no report of forensic lab regarding the finger prints of the accused.

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It is the contention of the learned senior counsel for the appellant that at the relevant point of time the appellant was at Dehradun. To verify the

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presence of the appellant, statement of Lokesh Kumar as DW2 was recorded, who was summoned by the Court. He was summoned to submit the call detail of phone number 9999571313 from 31.05.2012 to 05.06.2012 and also call detail of mobile number 8447296613 from 31.05.2012 to 02.06.2012, which is Ex.B-4 and B-7. As per his statement, an SMS was received in mobile number 8447296613 from mobile number 9999571313 on 02.06.2012 at 21:54 hours. As per the document, location of the mobile number 9999571313 related to the appellant was found at Chakrata Road, RSM Plaza, Dehradun and as per the record, the location of mobile number 8447296613 was hotel Shikhar, Laxman Jhoola, Tehri Garhwal.

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On 05.06.2012, a mobile phone was recovered from room number 15 of hotel Shiv Ganga, Tapovan, Muni Ki Reti. As per the recovery memo (Ex.Ka-41) a message was found in the mobile phone related to the deceased. The message was sent by the deceased to the appellant in appellant’s mobile number 9999571313 in which she clearly stated that “you can send a message when you will come otherwise she will commit suicide”. As per the record, this message was sent by the deceased to the appellant at 9:59 p.m., which shows that on 02.06.2012, the appellant was not at hotel Shiv Ganga, Tapovan. She sent a message to the appellant that if the appellant will not come she will commit suicide.

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As per the statement of DW2 Lokesh Kumar, the location of the appellant was found in Dehradun on 02.06.2012, which shows that at the relevant time, the appellant was not at hotel Shiv Ganga, Muni Ki Reti.

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As per the statement of CW1, Dr. Rohit

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Upadhyay, the deceased was not found pregnant. There was no injury found on the body of the deceased. The deceased died due to asphyxia after hanging. There is no evidence that the appellant was present at the relevant time at hotel Shiv Ganga. There is no evidence on record that the deceased was murdered by the appellant and thereafter she was hanged to conceal the evidence.

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As regards to the photographs found on the cell phone of the appellant related to the deceased is concerned, the prosecution has failed to prove the photographs. Even such photographs were not put to identify before PW7 Govind Singh, who is the father of the deceased. In the post-mortem, no injuries either external or internal were found on the body of the deceased.

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The trial Court did not properly assessed the evidence and even overlooked the statement of DW2 Lokesh Kumar and recovery memo dated 05.06.2012 prepared at the spot, which is Ex.Ka-41. The trial Court convicted the appellant simply on the basis of the oral evidence while as per the documents, particularly, SMS sent by the deceased to the appellant on 02.06.2012 and location of the appellant shows that the appellant was not present at the relevant point of time at the spot. The post-mortem report also indicates that the deceased died due to asphyxia as a result of ante mortem hanging.

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From re-assessment of the entire evidence, the following points are emerging:-

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a) It is not proved that on 02.06.2012, the appellant came to hotel Shiv Ganga, Tapovan, Muni Ki Reti, Rishikesh for getting a room.

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b) The hand-writing and signature of the appellant were not proved by any handwriting expert.

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c) The Driving License, which was produced before PW2 Ashish Bhadri, Manager of the hotel Shiv Ganga was not related to the appellant because as per the statement of PW5 Rajesh Kumar, Clerk, Licensing Authority, Transport Department, Faridabad, the above DL was related to one Manoj Kumar. No DL was seized from the possession of the appellant.

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d) The prosecution has failed to ascertain the location of the appellant at the spot at the relevant point of time when the deceased committed suicide.

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e) As per the statement of DW2 Lokesh Kumar, the location and call detail related to the appellant’s mobile was found at Dehradun on 02.06.2012, which is about 43 kilometers away from Rishikesh.

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f) As per the recovery memo (Ex.41), the mobile phone collected from room number 15 at hotel Shiv Ganga, Rishikesh was related to the deceased. The police did not find any items there related to the appellant.

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g) No finger prints were found related to the appellant on any item collected from the room number 15 of the hotel.

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h) As per the recovery memo (Ex.A-41) there was an SMS sent by the deceased to the appellant that “you can send a 12

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message when you will come otherwise she will commit suicide”.

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i) No injury either external or internal was found on the body of the deceased except the ligature mark on the neck.

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j) As per the post-mortem and FSL report, there is no evidence that the deceased was hanged on electric fan by the appellant after committing the murder.

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k) As per the prosecution story, the room was booked by the appellant and the deceased was very much present with him but the star witnesses PW2 Ashish Bhadri, Manager of the hotel Shiv Ganga and PW3 Sanjeev Singh Panwar, the Room Boy, did not identify the appellant before the witness box.

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l) The photographs found in the mobile phone of the appellant were not proved even these were not put to identify before PW7 Govind Singh, who is the father of the deceased.

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The trial Court had convicted the appellant simply on the basis of the oral evidence but he overlooked the statement of the Doctors, statement of DW2 Lokesh Kumar who produced the call detail and location of the accused and the deceased and verified the location of the appellant at Dehradun, which is about 43 kilometers away from Rishikesh where the deceased committed suicide. He also overlooked the statement of the Court witness Dr. Rohit Upadhyay, who clearly stated that the cause of death is asphyxia as a result of ante

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mortem hanging. After re-assessing the entire evidence on record, we came to this conclusion that the prosecution has failed to prove the case beyond reasonable doubt against the appellant.

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In view of the above observation, the appeal is liable to be allowed. Accordingly, the appeal is allowed and the judgment and order dated 21.08.2013 is set aside. Consequently, the appellant - Saurabh Bhatia is hereby acquitted of the charge for the offence punishable under Section 302 of the IPC.

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His bail bonds are cancelled and sureties are discharged from their liabilities.

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A copy of this judgment and order along with the LCR be transmitted to the Court below for compliance.

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_______________________ SANJAYA KUMAR MISHRA, A.C.J.

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______________ RAMESH CHANDRA KHULBE, J.

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Dated: 3^rd MARCH, 2022 Sukhbant

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Saurabh Bhatia v. State of Uttarakhand

Case brief

What is this about?

What did the court decide?

Saurabh Bhatia v. State of Uttarakhand

Case brief

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