Allowed

Gopal Dutt v. State of Uttarakhand

Uttarakhand HC5 Jul 2022CRLA/61/2014

Case brief

AI extract

What is this about?

In an appeal against conviction for murder and concealing evidence, the High Court held that the prosecution failed to prove the appellant's guilt beyond reasonable doubt. The wide time gap between the last sighting of the appellant and deceased and the discovery of the body rendered the 'last seen theory' insufficient without corroborative material. The appeal was accordingly allowed, and the app

What did the court decide?

Impugned judgment and sentence set aside; appellant acquitted of charges; bail bonds cancelled; sureties discharged; trial records sent back.

Gopal Dutt Vs State of Uttarakhand — Murder and Culpable Homicide | Uttarakhand HC (2022)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Criminal Appeal No. 61 of 2014

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Gopal Dutt. .......…......Appellant.

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Through: Shri S. K. Shandilya, Amicus Curiae /learned counsel for the appellant.

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-Versus-

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State of Uttarakhand. ……...Respondent.

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Through: Shri J.S. Virk, learned Deputy Advocate General for the State.

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Date of Hearing and Judgment : 05.07.2022

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Coram: Shri Sanjaya Kumar Mishra, J. Shri Alok Kumar Verma, J.

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(Upon hearing of learned counsel for the parties, the Court has passed the following judgment): Per: Shri Sanjaya Kumar Mishra, J.

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1. In this appeal filed against conviction, appellant Gopal Dutt has assailed the judgment and order dated 28.09.2013 rendered by the learned Additional Sessions Judge / Special Judge, EC Act, Nainital, in Sessions Trial No. 02 of 2008, arising out of Case Crime No. 923 of 2007, Police Station – Ram Nagar, District Nainital whereby the trial Judge has convicted the appellant for the offences under Section 302, 201 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC” for brevity) and sentenced him to undergo imprisonment for life and to pay fine of Rs. 5000/and in default of payment of fine, to undergo further simple imprisonment of one year under Section 302 IPC and to undergo rigours imprisonment for three years and to pay fine of Rs.

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2,000/- and in default of payment of fine, to undergo further simple imprisonment of three months under Section 201 IPC.

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2. The case of the prosecution is that on 23.04.2007, appellant and Beeru i.e. deceased went to Nursery Gate No. 064 for doing menial work. After performing their duties, they were coming towards Lalitpur in their respective bicycle. At about 09.00 p.m., Shri Rakesh Singh, son of Shri Prem Singh Negi and Shri Man Singh Thapa, son of Shri Lal Singh Thapa, both residents of Lalitpur, saw appellant Gopal Dutt and deceased were sitting by the roadside. Thereafter, appellant Gopal Dutt brought the bicycle of deceased to his house (house of complainant) and went to his house. On 24.04.2007, Shri Sanjay Kumar, son of Shri Santosh Kumar, resident of Lalitpur, found the dead body of the deceased near the house of Negi under Cutguleri tree being concealed inside the bushes. He also found that the dead body of the deceased was completely naked and a belt was tied around his neck and that his testicles were in swollen condition. He informed this fact to the complainant, who happens to be an elder brother of the deceased, who lodged the FIR before SHO, Police Station Ram Nagar, District Nainital. On receipt of such an FIR, the SHO registered the case and took up the investigation. During the course of investigation, he examined complainant, scribe of the FIR, two witnesses, who had seen the appellant and deceased together near Cutguleri tree on the road side. He sent to body for the post-mortem examination. He collected the material evidence from the site as well as prepared some documents. He also arrested the accused.

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On completion of the investigation, he has submitted charge-sheet against the accused for the offences under Section 302, 201 IPC. The defence took a simple plea of denial and false

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implication in this case but the prosecution in order to prove its case, has examined seven witnesses in total. PW 2 Shri Nemlal is the complainant of the case; PW1 Shri Sanjay Singh is scribe of the FIR; PW3 Rakesh Negi and PW4 Man Singh Thapa, are the two witnesses, who speak about their seeing the appellant in the company of the deceased at about 09.00 p.m. on 23.04.2007 near Cutguleri tree by the side of the road leading to Lalitpur; PW6 Dr. Nilamber Bhatt, who has conducted the post mortem examination on the dead body of the deceased; PW5 Head Moharir Anand Lal, who has prepared the Chik FIR and made endorsement in the GD; and PW7 Inspector Shri Arvind Singh Dangwal, is the Investigating Officer. In addition to examination of witnesses, the prosecution has also produced several documents as exhibits.

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3. On the other hand, the learned defence counsel has neither examined any witness nor led any documentary evidence in order to prove its case.

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4. The learned trial Judge, taking into consideration the narrations of PW3 and PW4 and opinion of the doctor, who has conducted the post mortem examination regarding nature and time of the death of the deceased, came to the conclusion that the prosecution has proved its case beyond reasonable doubt by establishing all the circumstances relied upon it. He further came to the conclusion that false statement by the appellant in his examination under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code” for brevity) and lack of explanation, as to cause of death of the deceased by the appellant, lead to draw adverse inference against the appellant, as per Section 106 of the Indian Evidence Act, 1872 (hereinafter referred to as “the Evidence Act” for brevity). He

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further came to the conclusion that prosecution has proved its case beyond all reasonable doubts and pronounced the judgment of conviction and sentenced the appellant to undergo imprisonment for life and to pay fine of Rs. 5000/- and in default of payment of fine, to undergo further simple imprisonment of one year under Section 302 IPC and to undergo rigours imprisonment for three years and to pay fine of Rs. 2,000/- and in default of payment of fine, to undergo further simple imprisonment of three months under Section 201 IPC.

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5. Shri S.K. Shandilya, learned Amicus Curiae for the appellant, while assailing the findings recorded by the Additional Sessions Judge would submit that the last seen theory in this case has not been proved properly. The time gap between “the last seen of the appellant in the company of deceased” and “the discovery of the dead body of the deceased” is so large that no prudent man would conclude that crime is definitely committed by the appellant. He would also argue that the learned Additional Sessions Judge resorted to conjectures and surmises while delivering the judgment and came to an erroneous conclusion about proof of case beyond reasonable doubt.

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6. Learned counsel for the appellant, however, would not challenge the findings recorded by the learned Additional Sessions Judge, relying upon evidence of the doctor, that death of the deceased was caused due to injuries sustained by him and it was a homicidal death. However, he dwells upon the question of complicity of the appellant in the commission of the crime. He would very emphatically argue that the prosecution has not proved its case beyond all reasonable doubts.

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7. On the other hand, Shri J. S. Virk, learned Deputy Advocate General would submit that the learned trial Judge has adopted a

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correct approach and there is no perversity in appreciation of the evidence, therefore, the appeal should be dismissed.

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8. Since the appellant’s counsel has not challenged the medical evidence, therefore, it is not necessary to discuss it in detail. Post mortem examination report is exhibited as exhibit Ka7. It is clear that there is no ambiguity or error in the conclusion arrived at by doctor conducting the post mortem examination. He has also very categorically stated that post mortem conducted at 04.45 p.m. on 24.04.2007 and he fixed the time of death of the deceased between 11.00 p.m. and 12.00 midnight in the intervening night of 23.04.2007 and 24.04.2007.

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9. Now, coming to the question of complicity of appellant in the crime and evidence led in this case. In this regard, evidence of PW3 Rakesh Negi and PW4 Man Singh Thapa are of the utmost importance. PW3 Rakesh Negi has stated that he was acquainted with appellant Gopal Dutt as well as deceased Beeru; on 23.04.2007 at about 09.00, he along with PW4 Man Singh were returning to their respective house on their respective bicycle, on the way, they saw that on the road leading to Lalitpur near Cutguleri tree, the appellant and deceased had put their bicycle on stand and were sitting there. They were indulged in humourous exchange and tussling (galh etkd vkSj gkFkkikbZ). Seeing this, they (PW3 and PW4) thought that appellant and deceased were drunk, hence, they should not interfere and went to their respective houses. On the next date, they found the dead body of the deceased near Cutguleri tree and revealed before other villagers that they saw the deceased and the appellant on the night before. He has also stated that inquest report was prepared before him and he was also witness to it. In the cross examination, he has stated that he saw, the deceased and the

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appellant were in inebriated state and were joking with each other and he had seen nothing else. Evidence of PW4 Man Singh Thapa is almost same as PW3 Rakesh Negi.

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10. Admittedly, the appellant with the deceased was seen at about 09.00 p.m. on 23.04.2007 and dead body was discovered on the next day in the morning. Thus, there is a gap of about 10 hours between the last sighting of “the deceased and the appellant” and “the discovery of the dead body”.

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11. In the given facts of the case, the time gap between “the last seen of the appellant with the deceased” and “the discovery of the dead body” is not very slim and slender. The time gap, therefore, does not exclude the possibility that any other person had not committed the murder of the deceased. It is a settled principle of law that last seen theory came to play when the accused and the deceased were seen together and soon thereafter dead body of the deceased was found. What shall be the proper time gap to bring the principle of last seen theory in appreciation of the evidence is always a question to be determined on the facts of that particular case. No straightjacket formula can be prescribed for such a situation for appreciation of the evidence. It depends on the judicial conscience of the trial Judge or the Appellate Judge to decide whether in the given circumstances time gap is so small that there is no chance of any other person committing the murder of the deceased. In this case, the time gap is very wide. Moreover, the dead body of the deceased was found in a public and open space.

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12. Approaching the issue from another angle, it is seen that the doctor fixed the time of death between 11.00 p.m. to 12.00 mid night. Even if it is taken for the purpose of consideration of the case of the prosecution that the appellant was last seen with the

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deceased at 09.00 p.m. and death took place two hours thereafter, if earliest time considered being 11.00 p.m. and later outer limit time considered being 12.00 mid night, so in this connection, we are of the opinion that last seen theory will not be sufficient in this case to prove the case of the prosecution. There should be some other material to corroborate the guilt of the appellant.

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13. In the present case, statement of PW2 Nemlal was put forth for assigning the motive of murder. He has stated that there was some dispute between the appellant and deceased regarding payment of Rs. 200/- or transaction of Rs. 200 but no such averment has been made in the FIR or no specific plea has been taken by prosecution that there was motive for the appellant to commit murder of the deceased. No plea to the effect that there was a dispute between the appellant and the deceased regarding payment of Rs. 200/-, allegedly taken by the deceased from the appellant and he was not paying the same, has been taken.

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14. Another very important, aspect which has not been explained by the prosecution and the Investigating Officer has not applied his mind to it, is that it is not known whose the belt was that found tied around the neck of the deceased; whether it was belt of accused or that of deceased. No other weapon has been seized. Nobody has come forward to state that the belt belongs to the appellant.

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15. In that view of the matter, this Court is opinion that last seen theory and discovery of the dead body in this case are not incriminating circumstances against the appellant because the time gap between the last sight of the appellant with deceased and discovery of the dead body is so large and also opinion of the doctor, who has fixed the time of death between 11.00 p.m. to 12.00 midnight. If these aspects are not accepted, then wrong

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answer given by the appellant in examination under Section 313 of the Code or that he failed to explain as to how deceased died, thereby drawing adverse inference under Section 106 of the Evidence Act, will not be relevant for this particular case.

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16. We are of the opinion that the learned Addl. Sessions Judge has committed an error on record by holding that the prosecution has proved its case beyond reasonable doubt and therefore, the appellant is guilty of the offence under Section 302, 201 IPC. Considering the facts and circumstances of the case and discussion made above, we come to the conclusion that prosecution has failed to prove its case beyond reasonable doubt against the appellant. Since the charge of offence under Section 302 IPC is not proved. The charge of offence concealing of evidence punishable under Section 201 IPC shall also become infructuous.

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17. In that view of the matter, the appeal is allowed. Impugned judgment and order of conviction of the appellant under Section 302, 201 IPC and sentences awarded therefor, are hereby set aside. The appellant is acquitted of the charges under Section 302, 201 IPC. Record shows that the appellant is on bail granted by this Court. He be set at liberty by cancelling his bail bonds executed by him and sureties be discharged. Trial court records be sent back forthwith.

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(Alok Kumar Verma, J.) (Sanjaya Kumar Mishra, J.)

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SKS

Gopal Dutt v. State of Uttarakhand

Case brief

What is this about?

What did the court decide?

Gopal Dutt v. State of Uttarakhand

Case brief

What is this about?

What did the court decide?

What the court decided

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