Initially, this appeal was preferred by the three accused.
Appellant no.1-Hari Singh (accused no.1) is no more. The appeal
survives insofar as the appellant no.2-Gopal Singh (accused no.4)
and appellant no.3-Avtar Singh (accused no.5)are concerned. PW-1-
Soban Singh is the complainant, and the deceased, Gaje Singh, was
his brother-in-law. A total of five accused were charge-sheeted for
the offences punishable under Sections 302 and 323 read with
Section 34 of the Indian Penal Code (for short, ‘the IPC’). The
appellants were convicted by the Sessions Court and were sentenced
to undergo life imprisonment. The High Court brought down the
conviction to Section 304 Part II of the IPC by the impugned
judgment.
The case of the prosecution is that PW-1, the deceased and the
SignatureaccusedNot Verified were residents of the same village, and there was a prior
PW-1 was going to the latrine accompanied by the deceased, and when
they reached the stand post near the village, stones were thrown at
them by the accused, who had sticks and stones in their hands. All
of them assaulted PW-1 and the deceased Gaje Singh. One Raghuvir
Singh (PW-3) took PW-1 and the deceased to his house. PW-1 had lost
consciousness. On the next day, PW-3 and others tried to take the
deceased to the hospital, but he died on the way. The prosecution
evidence rests on two alleged eye-witnesses, namely, PW-1-Soban
Singh and PW-3-Raghuvir Singh. The learned counsel appearing for
the respondent-State has also relied upon the depositions of Court
Witnesses no.1 to 4.
With the assistance of the learned counsel appearing for the
parties, we have perused the evidence of PW-1. The first paragraph
of his examination-in-chief records that when his evidence was
recorded, the present appellants were not present in the court.
Though PW-1 deposed ascribing a role to all the accused persons in
the assault on the deceased and himself, PW-1 did not identify the
present appellants as the accused in the Court as they were not
brought to the Court. Therefore, from the evidence of PW-1, the
identity of the appellants (appellant nos.2 and 3) as accused was
not established. PW-3 is not an eyewitness, and he deposed that
after he heard shouts, he ran towards the side from where the
shouts were coming, and he saw the accused in the light of the
torch which he was carrying. He stated that he recognised the
accused in the light of the torch. Even his examination-in-chief
records that the present appellants were not present in the Court,
and therefore, even PW-3 has not identified the present appellants
as accused.
Four court witnesses were examined. We have perused their
evidence as well. The first Court Witness is Balwant Singh (CW-1),
who is not an eyewitness. All that he states is that in the morning
of the incident, at around 05:00 a.m., he heard loud voices of the
weeping of the villagers and saw marks of injuries on the head of
the deceased, and blood was oozing from the injuries. He further
stated what was told to him by PW-3 about the accused assaulting
the deceased. This part of the evidence is a piece of hearsay
evidence. CW-2-Pyuli Devi, who is the wife of PW-1, is also not an
eyewitness, and she again deposed based on what PW-1 told her about
the assault by the accused. So, this part of her evidence is also a
hearsay evidence. As far as CW-3-Fateh Singh is concerned, he did
not depose anything about the incident in his examination-in-chief.
However, on being questioned by the public prosecutor, he stated
that PW-3 brought the deceased to his house at 04-05:00 a.m., where
the deceased told him that five persons, namely, Hari Singh, Raje
Singh, Kalam Singh, son of Raje Singh and one other boy assaulted
him. Apart from the fact that even according to the witness, the
deceased did not specifically name the present appellants, we find
that his version regarding the deceased disclosing the names of the
accused is an omission, as is evident from the cross-examination
made by the defence counsel.
Therefore, this is a case where the identity of the present
appellants as accused was not established before the Court by any
of the witnesses. It is axiomatic that when the prosecution alleges
that a particular person has committed an offence, it is the duty
of the prosecution to establish the identity of the accused as the
person who has committed the offence by adducing evidence. In this
case, the evidence of both PW-1 and PW-3 was recorded in the
absence of the appellants. They had named the appellants. However,
they did not identify the appellants in court as the same persons
whom they had seen committing the offence. This is something which
is very fundamental which goes to the root of the matter and has
been ignored by the Sessions Court and the High Court.
The trial court initially convicted the accused for an offence
punishable under Sections 302 and 323 read with Section 34 of the
Indian Penal Code, 1860 (for short, “the IPC”). The High Court, by
the impugned judgment, brought down the conviction of the
appellants to 304 Part II of the IPC.
As it is a case of no evidence against the present appellants,
the impugned judgments, only as far as the present appellants are
concerned, are hereby quashed and set aside. They are acquitted of
the offences alleged against them.
The bail bonds of the appellants are cancelled.
The appeal is, accordingly, allowed.
Pending application(s), if any, shall stand disposed of.
Criminal Appeal No(s).1408/2014
GOPAL SINGH & ANR. Appellant(s)
VERSUS
STATE OF UTTARAKHAND Respondent(s)
Date : 06-02-2025 This appeal was called on for hearing today.
CORAM :
For Appellant(s) Ms. H. L. Chumber, Adv.
Ms. Roopa Paul, Adv.
Mr. Parveen Paul, Adv.
Mr. Satyendra Kumar, AOR
Mr. Roshan Singh Thakur, Adv.
Mr. Shivam Birt, Adv.
Mr. Vishal Rathee, Adv.
For Respondent(s) Mr. Akshat Kumar, AOR
Ms. Anubha Dhulia, Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeal is allowed in terms of the signed order.
Pending application(s), if any, shall stand disposed of.
(Signed order is placed on the file)