Uttarakhand High Court
Deepak Singh Bisht vs State Of Uttarakhand on 25 August, 2025
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 191 of 2018
Deepak Singh Bisht ........Appellant
Versus
State of Uttarakhand ........Respondent
Present:-
Mr. D.C.S. Rawat, Advocate for the appellant.
Mr. Pankaj Joshi, AGA for the State.
Mr. Nandan Arya, Advocate for the informant.
Coram: Hon'ble Ravindra Maithani, J.
Hon’ble Alok Mahra, J.
Hon’ble Ravindra Maithani, J. (Oral)
Instant appeal is preferred against the judgment and order
dated 21.05.2018/28.05.2018 passed by the Sessions Judge, Almora
in Sessions Trial No. 19 of 2017, State v. Deepak Singh Bisht, by
which the appellant has been convicted under Section 302, 201 IPC
and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (“SC/ST Act”) and sentenced as
hereunder:-
(i) Under Section 302 IPC - rigorous imprisonment for life with a fine of
Rs. 40,000/-. In default of payment of fine,
to undergo additional imprisonment for a
period of one year.
(ii) Under Section 201 IPC – rigorous
imprisonment for a period of seven years
with a fine of Rs. 5,000/-. In default of
payment of fine, to undergo additional
imprisonment for a period of six months.
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(iii) Under Section 3(2)(v) of the SC/ST Act –
rigorous imprisonment for life with a fine of
Rs. 5,000/-. In default of payment of fine, to
undergo additional imprisonment for a
period of one year.
2. Heard learned counsel for the parties and perused the
record.
3. Briefly stated, the prosecution case is as follows. The
deceased Pani Ram was a Village Development Officer in Village
Gunaditya Pali, District Almora. On 20.04.2017, at about 06:00 in
the morning, PW 2 Smt. Beena Devi, the wife of the deceased,
received a telephone call that her husband is lying dead in the
Verandah of the Horticulture Department Building in village
Gunaditya Pali. She informed it to her nephew PW 1 Surendra
Kumar. Thereafter, PW 1 Surendra Kumar along with PW 3 Kamal
Kumar, PW 9 Pooran Ram and others, reached at Village Gunaditya
Pali. He lodged a report. According to it, the dead body of the
deceased was lying in the Verandah on the ground floor of the
Horticulture Department building; there were multiple injuries on
his body; blood was oozing out and it was apparent that some
person has tried to wipe out the blood. According to the FIR, PW 1
Surendra Kumar was told by the persons present there that in the
previous night, the deceased, the appellant and Khim Singh
Kafaliya had meals together. There were bloods stains on the railing
of stairs to the first floor. In the first floor room (“the room”), the cot
was broken. There was blood around. Based on this report lodged
by PW 1 Surendra Kumar, Case Crime No. 2 of 2017 was lodged at
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Revenue Police Station Pali, District Almora under Sections 302,
201 IPC and Section 3(2) (v) of the SC/ST Act against the appellant.
4. The room at the first floor was sealed. Articles were
taken into possession by the forensic expert. A site plan was
prepared. The inquest of the dead body was prepared on the same
day. The post-mortem of the body was conducted on 21.04.2017.
According to the doctor, the cause of death was ‘head injury, which
was caused by a blunt object’. The following injuries were also
noted on the person of the deceased:-
“(a) Fracture of scalp. There were fractures in temporal
bone and occipital bone.
(b) Bruises on left arm and right chest.
(c) Abrasions on face.
(d) Fracture in right ulna, right radius and right
mandible.
(e) Incised would 2.5 x 2.5 cm. on right pinna.
(f) Contusions almost on all the body, which is known
as post-mortem lividity.
(g) All internal organs were normal except the brain.
(h) Hematoma in temporal area measuring about 3 x 5
cm in frontal part of brain. 1 x 3 cm hematoma in
right occipital area. There was blood in entire brain,
which generally is not found.”
5. Articles were sent for forensic examination. Forensic
report was also received, which confirmed that on the blood stains,
which were detected from the room, the DNA of the deceased was
detected, except one polythene bag, which was collected from the
room, which had DNA of some other human male source.
6. After investigation, the charge sheet was submitted
against the appellant under Sections 302, 201 IPC and Section
3(2)(v) of the SC/ST Act.
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7. On 31.03.2017, charges under Sections 302, 201 IPC
and Section 3(2) (v) of the SC/ST Act were framed against the
appellant, to which the appellant denied and claimed trial.
8. In order to prove its case, the prosecution examined as
many as 17 witnesses, namely, PW 1 Surendra Kumar, PW 2 Smt.
Beena Devi, PW 3 Kamal Kumar, PW 4 Khimanand Paliwal, PW 5
Anand Prasad, PW 6 Vinod Singh Birodiya, PW 7 Khim Singh Bisht,
PW 8 Uma Pati Pandey, PW 9 Pooran Ram, PW 10 Diwan Singh, PW
11 Krishna Kumar, PW 12 Shyam Lal Verma, PW 13 Jagdish
Prasad, PW 14 Arjun Singh, PW 15 Bahadur Singh Kumalta, PW 16
Dr. Pramod Kumar and PW 17 R.S. Toliya.
9. After the prosecution evidence was over, the appellant
was examined under Section 313 of the Code of Criminal
Procedure, 1973 (“the Code”). According to him, the witnesses have
given false evidence against him. In his defence, he examined Dr.
B.B. Joshi as DW1 and Umed Singh as DW 2.
10. After hearing the parties, by the impugned judgment
and order the appellant has been convicted under Sections 302,
201 IPC and Section 3(2) (v) of the SC/ST Act and sentenced as
stated hereinbefore.
11. Learned counsel for the appellant submits that the
prosecution has utterly failed to prove the case beyond reasonable
doubt against the appellant; he has only been convicted on the
ground that the room belongs to the appellant, where the blood of
the deceased was detected. He submits that it has not been proved
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that the room belongs to the appellant. It is argued that, in fact,
merely on hearsay evidence and uncorroborated testimonies, the
conviction is based, therefore, the impugned judgment and order
deserves to be set aside. He refers to the statements of the
witnesses in support of his contentions.
12. Learned State Counsel submits that a few things are
admitted, namely, that the death was homicidal; the room was a
residential room of the appellant where the blood of the deceased
was detected on multiple articles. He also raised the following
points in his submissions:-
(i) PW 2 Smt. Beena Devi has stated that the
deceased was staying in the house of PW 5
Anand Prasad. She has also stated that the
house and the office of the deceased was in the
same building; PW 5 Anand Prasad has also
stated that the deceased was his tenant, which
was a separate building; the building of the
Horticulture Department was also separate.
(ii) The appellant in his examination under Section
313 of the Code, in answer to Question No. 12,
has stated that the deceased was staying in the
house of PW 5 Anand Prasad.
(iii) In the building of Horticulture Department, there
was one room for the office and one room was
vacant; the appellant was the sole caretaker of
the building.
(iv) The appellant was either residing in the room,
where the blood of the deceased was detected or,
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at least, it was within his specific knowledge as
to who was residing in that room. Therefore, the
burden to prove this fact is on the appellant
under Section 106 of the Indian Evidence Act,
1872 (“the Evidence Act“).
(v) During investigation, the appellant had never
disputed that the room, from which various
articles were taken into custody by the forensic
expert PW 14 Arjun Singh, did not belong to the
appellant. Referring to the statement of PW 5
Anand Prasad, he would submit that he is the
first witness, who reached at the spot and saw
the appellant moving upstairs with a jerrycan in
his hand. He would submit that this fact
indicates that that the appellant was moving to
his residence, which was situated at the first
floor of the building of the Horticulture
Department so as to wipe out the fresh blood,
which was present there.
13. Learned counsel for the informant also submits that
the prosecution has been able to prove its case beyond reasonable
doubt; the chain is complete. He also raised the following points in
his submissions:-
(i) The presence of the appellant at the place of
incident is not disputed; he himself has admitted
that he made a telephone call to the Village
7Pradhan; thereafter, many persons reached at
the spot.
(ii) PW 2 Smt. Beena Devi, the wife of the deceased,
has stated that the appellant used to abuse the
deceased with caste coloured remarks, which is
the motive to eliminate the deceased.
(iii) It is argued that the prosecution has been able to
prove its case beyond reasonable doubt that the
room belonged to the appellant and none other.
(iv) The injuries corroborate that the deceased was
killed brutally. The mental condition of the
appellant was also examined and he was found
to be a fit person.
(v) It is argued that all the circumstances have been
discussed in detail by the court below, which is a
reasoned order; it does not warrant any
interference.
14. One of the basic principles of criminal jurisprudence is
that the prosecution has to prove its case beyond reasonable doubt.
A person may have killed someone is not a case proved beyond
reasonable doubt. It should be with certainty that the person must
have killed or has killed or, in fact, killed another person.
15. In the case of circumstantial evidence, in fact, each
circumstance should be so interconnected so as to exclude every
possibility of innocence of the person so charged.
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16. In the case of Sharad Birdhichand Sarda v. State of
Maharashtra, (1984)4 SCC 116, the Hon’ble Supreme Court has
laid down five golden principles, which are applicable in the case of
circumstantial evidence. In para 153 of the judgment, the Hon’ble
Supreme Court observed as follows:-
“153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may be”
established. There is not only a grammatical but a legal distinction
between “may be proved” and “must be or should be proved” as
was held by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl
LJ 1783] where the observations were made: [SCC para 19, p. 807:
SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the
accused must be and not merely may be guilty before a
court can convict and the mental distance between ‘may
be’ and ‘must be’ is long and divides vague conjectures
from sure conclusions.”
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except that the
accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) 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.”
17. In fact, what is proof beyond reasonable doubt and
what are those aspects, have been discussed in the case State of
Karnataka v. J. Jayalalitha and others, (2017) 6 SCC 263. In para
9
222 to 224, the Hon’ble Supreme Court discussed the law on this
point and observed as follows:-
“Burden of proof and benefits of doubt
222. That the burden of proof of a charge is on the
prosecution subject to the defence of insanity and any other
statutory exception has been authoritatively proclaimed
in Woolmington v. Director of Public Prosecutions
[Woolmington v. Director of Public Prosecutions, 1935 AC 462
(HL)] and testified by the following extract : (AC pp. 481-82)
“… Throughout the web of the English Criminal Law one
golden thread is always to be seen, that it is the duty of the
prosecution to prove the prisoner’s guilt subject to what I have
already said as to the defence of insanity and subject also to any
statutory exception. If, at the end of and on the whole of the case,
there is a reasonable doubt, created by the evidence given by
either the prosecution or the prisoner, as to whether the prisoner
killed the deceased with a malicious intention, the prosecution has
not made out the case and the prisoner is entitled to an acquittal.
No matter what the charge or where the trial, the principle that
the prosecution must prove the guilt of the prisoner is part of the
common law of England and no attempt to whittle it down can be
entertained.”
223. In Shivaji Sahabrao Bobade v. State of
Maharashtra [Shivaji Sahabrao Bobade v. State of Maharashtra,
(1973) 2 SCC 793 : 1973 SCC (Cri) 1033] , Hon’ble Krishna Iyer,
J., in his inimitable expressional felicity cautioned against the
dangers of exaggerated affinity to the rule of benefit of doubt as
hereunder : (SCC p. 799, para 6)
“6. … The dangers of exaggerated devotion to the rule of
benefit of doubt at the expense of social defence and to the
soothing sentiment that all acquittals are always good regardless
of justice to the victim and the community, demand especial
emphasis in the contemporary context of escalating crime and
escape. The judicial instrument has a public accountability. The
cherished principles or golden thread of proof beyond reasonable
doubt which runs through the web of our law should not be
stretched morbidly to embrace every hunch, hesitancy and degree
of doubt. The excessive solicitude reflected in the attitude that a
thousand guilty men may go but one innocent martyr shall not
suffer is a false dilemma. Only reasonable doubts belong to the
accused. Otherwise any practical system of justice will then break
down and lose credibility with the community. The evil of
acquitting a guilty person light-heartedly as a learned author
10
(Glanville Williams in “Proof of Guilt”) has sapiently observed, goes
much beyond the simple fact that just one guilty person has gone
unpunished. If unmerited acquittals become general, they tend to
lead to a cynical disregard of the law, and this in turn leads to a
public demand for harsher legal presumptions against indicated
“persons” and more severe punishment of those who are found
guilty.”
224. In Collector of Customs v. D. Bhoormall [Collector of
Customs v. D. Bhoormall, (1974) 2 SCC 544 : 1974 SCC (Cri) 784]
, this Court had observed (SCC p. 553, para 30) that in all human
affairs, absolute certainty is a myth and the law does not require
the prosecution to prove the impossible. It was highlighted that all
that was required is the establishment of such a degree of
probability that a prudent man may on this basis believe in the
existence of the fact in issue. It was exposited that legal proof is
thus not necessarily perfect proof and is nothing more than a
prudent man’s estimate as to the probability of the case.”
18. During the course of arguments, reference has been
made to some of the statements given by the appellant in reply to
the questions under Section 313 of the Code. It may be noted that
the answers given by an accused in reply to the questions under
Section 313 of the Code is not a substantial piece of evidence. At
the most, it may lend credence to the evidence, which has already
been established and proved by the prosecution.
19. In the case of Mohan Singh v. Prem Singh and another,
(2002) 10 SCC 236, this aspect has been adverted to by the Hon’ble
Supreme Court and in para 27 and 30, the Hon’ble Supreme Court
observed as follows:-
“27. The statement made in defence by the accused under
Section 313 CrPC can certainly be taken aid of to lend credence to
the evidence led by the prosecution, but only a part of such
statement under Section 313 of the Code of Criminal Procedure
cannot be made the sole basis of his conviction. The law on the
subject is almost settled that statement under Section 313 CrPC of
the accused can either be relied in whole or in part. It may also be
11possible to rely on the inculpatory part of his statement if the
exculpatory part is found to be false on the basis of the evidence
led by the prosecution. See Nishi Kant Jha v. State of
Bihar [(1969) 1 SCC 347 : AIR 1969 SC 422] : (SCC pp. 357-58,
para 23) … ……. …… …… …… …… ….. ….. …… …… …… …… ……
…………………………………………………………………………………………
30. The statement of the accused under Section 313 CrPC
is not a substantive piece of evidence. It can be used for
appreciating evidence led by the prosecution to accept or reject it.
It is, however, not a substitute for the evidence of the prosecution.
As held in the case of Nishi Kant [(1969) 1 SCC 347 : AIR 1969 SC
422] by this Court, if the exculpatory part of his statement is
found to be false and the evidence led by the prosecution is
reliable, the inculpatory part of his statement can be taken aid of
to lend assurance to the evidence of the prosecution. If the
prosecution evidence does not inspire confidence to sustain the
conviction of the accused, the inculpatory part of his statement
under Section 313 CrPC cannot be made the sole basis of his
conviction.”
20. Needless to say that every incriminating piece of
evidence, which the prosecution proposes to use against an
accused, has to be placed before the accused so as to give an
opportunity to explain. On this aspect, in the case of Ashok Kumar
v. State of Haryana, (2010) 12 SCC 350, the Hon’ble Supreme
Court observed “Firstly, every material piece of evidence which
the prosecution proposes to use against the accused should be
put to him in clear terms and secondly, the accused should
have a fair chance to give his explanation in relation to that
evidence as well as his own versions with regard to alleged
involvement in the crime. This dual purpose has to be achieved
in the interest of the proper administration of criminal justice
and in accordance with the provisions of CrPC. Furthermore,
the statement under Section 313 CrPC can be used by the
Court insofar as it corroborates the case of the prosecution. Of
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course, conviction per se cannot be based upon the statement
under Section 313 CrPC”.
21. Before the arguments are appreciated, it would be apt
to examine the evidence adduced by the prosecution.
22. PW 1 Surendra Kumar is the first informant. He is the
nephew of PW 2 Smt. Beena Devi, who is the wife of the deceased.
According to him, on 20.04.2017, at about 06:30 a.m., he was told
by his aunt PW 2 Smt. Beena Devi that the dead body of the
deceased was lying on the ground floor of the building of the
Horticulture Department. Thereafter, he reached the place of
incident. He saw the dead body, which was bleeding from head.
There were multiple injuries on the dead body and it was revealing
that some person had tried to wipe out the blood. In para 5 of the
statement, he says that the villagers had then told it to him that in
the previous night, deceased along with the appellant and one Khim
Singh were in the room of the appellant and they all had meal
together; thereafter, the dead body of the deceased was detected. He
has proved the FIR, which was lodged by him, as Ex. A-1.
According to him, the forensic team reached the spot; they had
collected the material from the room and prepared a recovery
memo, which is Ex. A-2. This witness has also proved the specimen
seal, which are Ex. A-3 and A-4. He has also proved the articles,
which were recovered from the room, which are Ex. 1 to Ex. 45.
What is important is that there was a pressure cooker, Ex. 2, which
was slightly flattened. This witness has proved it. This witness has
also proved one carry bag with wrapper, Ex. 10, which according to
him, had blood stain on it. It has a slight significant at a later
13
stage, because according to forensic science laboratory report, this
carry bag had blood from another male human source and it had
no blood of the deceased. The question arises as to whose blood
was it?
23. PW 2 Smt. Beena Devi did receive the telephone call in
the morning of 20.04.2017. She has stated about it. According to
her, the deceased was staying in the house of PW 5 Anand Prasad
and adjacent to him was the room of the appellant. What is
important about this witness is that she has proved the pressure
cooker, Ex. 2, which was found in the room and according to this
witness, this pressure cooker was theirs.
24. PW 3 Kamal Kumar and PW 9 Pooran Ram are other
witnesses, who accompanied PW 1 Surendra Kumar to the place of
incident. They have given statement accordingly that the dead body
of the deceased was found in the Verandah of the building of
Horticulture Department; there was blood around and they were
told that the room at the first floor, where the blood was detected,
belongs to the appellant.
25. PW 4 Khimanand Paliwal is the husband of the Village
Pradhan. He received the telephone call about the incident.
According to him, the phone was from the appellant. He also
reached the place of incident and from near the dead body, the
appellant picked up a phone and called the wife of the deceased. He
was a witness to the inquest. He has also stated about the site plan
and other documents.
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26. PW 5 Anand Prasad is the landlord of the deceased
Pani Ram. He has stated that the deceased was his tenant. He was
told about the incident. He also reached the place of incident and
saw the dead body and the blood around. He did not support the
prosecution case in full. He was declared hostile on certain aspects.
27. PW 6 Vinod Singh Birodiya has stated about the
inquest report. PW 7 Khim Singh Bisht and PW 11 Krishna Kumar
both have not supported the prosecution case. They were declared
hostile.
28. PW 8 Uma Pati Pandey was posted as the Village
Development Officer in Dholadevi. He also reached at the place of
incident and has stated about the recovery, inquest and sealing of
the dead body, etc. He has not stated anything about the incident
as such as to who killed the deceased.
29. PW 10 Diwan Singh was posted as the Assistant
Development Officer and was also the incharge of Horticulture
Department Unit of Gunaditya Pali. According to him, the appellant
was working in the Horticulture Department as a gardener on
contractual basis; the Horticulture Department building at
Gunaditya is double storey, etc.; on the ground floor is the godown
and on the first floor, there are two rooms, out of which, one is for
office and another is vacant; the appellant is the gardener of the
building. He has proved the appointment letter of the appellant.
According to him, he never saw the appellant staying in the first
floor of the building of the Horticulture Department and he was not
appointed as watchman of the building.
15
30. PW 12 Shyam Lal Verma was the superior officer of the
deceased. He has proved certain documents with regard to caste,
etc. of the deceased.
31. PW 13 Jagdish Prasad is the Revenue Sub Inspector,
who received the FIR and recorded the chik FIR. According to him,
he reached the place of incident. According to him, blood stained
articles were taken into custody by the forensic team. He also
proved the inquest, sealing of the body for post-mortem, sealing of
articles, etc.
32. PW 14 Arjun Singh is the forensic team member. He
also reached the place of incident. According to him, from the room,
certain articles were taken into custody. The room was sealed.
33. PW 15 Bahadur Singh Kumalta is a Naib Tehsildar. He
was given investigation of the matter. He arrested the appellant,
conducted investigation for some time and thereafter investigation
was transferred to PW 17 R.S. Toliya.
34. PW 16 Dr. Pramod Kumar is the person, who
conducted the post-mortem of the deceased. According to him, the
cause of death was ‘head injury, which was caused by a blunt
object’
35. PW 17 R.S. Toliya is the Investigating Officer. He
conducted the investigation, took permission to prosecute the
appellant and after investigation, submitted the charge sheet.
16
36. On behalf of the appellant, two witnesses have been
examined. DW 1 Dr. B.B. Joshi has stated that he examined the
appellant and found that his mental condition was perfectly right.
DW 2 Umed Singh has stated that on 12/13.04.2017, he had gone
to invite the deceased for a wedding. The deceased was staying in
the room of the Horticulture Department. This is the entire
evidence.
37. Some facts are not in dispute, which are as follows:-
(i) For the first time, it is the appellant, who
informed the husband of the Village Pradhan
about the fact that the dead body of the deceased
is lying in the Verandah on the first floor of the
Horticulture Department Building at Gunaditya
Pali.
(ii) There was blood all around the dead body, which
was leading through the staircase to the first
floor.
(iii) Various articles were recovered from the room,
which were taken into custody by PW 14 Arjun
Singh for forensic examination.
(iv) Blood was found on all those articles, but on a
carry bag, which was recovered from the room,
the blood was of some another human male
source. It has no blood of the deceased.
38. In view of the settled principle of law, the prosecution
has to establish beyond reasonable doubt that it is the appellant
17
and the appellant alone, who has committed this incident. What is
being argued on behalf of the prosecution is that the appellant was
present on the spot early in the morning and he was staying on the
room at the first floor of the building of the Horticulture
Department. Various articles, which were recovered from the room
had the blood of the deceased as established by the forensic science
laboratory.
39. The question is whether the room belongs to the
appellant. PW 10 Diwan Singh is the superior officer of the
Horticulture Department. He has stated that the room was not
allotted to the appellant (statement of PW 10 Diwan Singh, Para
10). According to him, the appellant was not appointed as a
watchman either. According to this witness, on the first floor, one
room was office and another room was vacant.
40. In so far as PW 1 Surendra Kumar, PW 3 Kamal Kumar
and PW 9 Pooran Ram are concerned, they had no personal
knowledge as to who was residing in the room. According to them,
the villagers and other persons, who were present at the spot, told
them that the room belongs to the appellant.
41. There is a very important factor in the instant case.
According to the FIR, PW 1 Surendra Kumar was told by the
persons present on the place of incident that in the previous night,
the appellant, Khim Singh and the deceased all had their meals in
the room. Who told it to PW 1 Surendra Kumar that in the previous
night the deceased was with the appellant? This has not been even
shown by the prosecution.
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42. PW 1 Surendra Kumar has further, in para 33 of his
statement, reiterated as to what is stated in the FIR. According to
him, in the presence of Naib Tehsildar and Patwari, the villagers
had told it to him that in the previous night the appellant, Khim
Singh and the deceased had meals together in the room. Those
villagers are not before the Court.
43. PW 2 Smt. Beena Devi is the wife of the deceased. She
tells that her husband was staying in the house of one Anand
Prasad. The house of Anand Prasad is at a distance, on the North-
West of the Horticulture Department building at Gunaditya Pali. In
para 2 of her statement, PW 2 Smt. Beena Devi states that Deepak
Bisht was his neighbour. Does it mean that Deepak Bisht was also
staying in the same building of Anand Prasad? But, even this is not
the prosecution case.
44. On behalf of the prosecution, statement of PW 2 Smt.
Beena Devi has been referred to infer that it reveals a motive to the
appellant to kill the deceased. According to the prosecution, this
witness has stated that at times, the appellant would abuse the
deceased with caste coloured remarks. On the one hand, it is being
suggested by the prosecution that in the previous night, the
appellant, the deceased and Khim Singh had meals together,
whereas, on the other hand, a weak kind of this motive is inferred
to.
45. If the statements of PW 1 Surendra Kumar, PW 3
Kamal Kumar, PW 4 Khimanand Paliwal, PW 8 Uma Pati Pandey
19
and PW 9 Pooran Ram are read, according to these witnesses, they
are not sure as to whose residential room was it, from where the
blood stained articles were recovered (Because PW 1 Surendra
Kumar has stated that he was told by the Naib Tehsildar that the
room belong to the appellant; PW 3 Kamal Kumar also stated that
he was told by the Patwari that the room belongs to the appellant.
Similarly, PW 4 Khimanand Paliwal tells that he does not know as
to whose room was it. PW 8 Uma Pati Pande tells that the Patwari
had told it to him that the room belongs to the appellant. PW 9
Pooran Ram also did not have personal knowledge as to whose
room was it.).
46. As stated, PW 2 Smt. Beena Devi has stated that her
husband was staying in the house of Anand Prasad and “Bagal ke
kamre me Deepak rahta tha” (Deepak was staying in the adjoining
room). Does it mean that the appellant was not staying in the
room?
47. PW 5 Anand Prasad is the person in whose house,
according to the prosecution, the deceased was staying. In para 19
of his statement, he tells that the appellant used to travel from his
home to the office. He would come in the morning and leave in the
evening. He never saw the appellant staying in the room. As stated,
PW 10 Diwan Singh, superior officer of the Horticulture Department
has stated that he never saw the appellant staying in the room.
This witness also says that the room had never been allotted to the
appellant.
48. PW 13 Jagdish Prasad is the person, who has stated
that in the room, the appellant was residing. PW 13 Jagdish Prasad
is a Revenue Sub Inspector. But, how could this witness know that
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the appellant was residing in the room? Similarly, PW 15 Bahadur
Singh Kumalta has also stated that the appellant was staying in the
room, but this fact was not told by this witness to the Investigating
Officer, as told by PW 17 R.S. Toliya.
49. Whether a person resides in a room or not, apart from
oral evidence, can be established through multiple other facts i.e.
his belongings, finger prints, DNA matching, etc., to connect a
person with the room. In the instant case, nothing has been
brought on record by the prosecution which would connect the
room to the accused. There are some oral evidences, like the
statements of PW 13 Jagdish Prasad and PW 15 Bahadur Singh
Kumalta. But, they had no basis as such. How could they say that
the room belongs to the appellant? The room was situated at the
first floor building of the Horticulture Department. There were
multiple articles recovered from the room, which had blood stained
and the blood belonged to the deceased. As stated, there was a
carry bag, which had blood from different male human resource.
Whose blood was it? It was not detected.
50. On behalf of the prosecution, it is also argued that if
there is any defect in the investigation, that may not give any
benefit to the accused. This is true that every defect may not lead to
acquittal. But, then the prosecution has to independently prove its
case beyond reasonable doubt. The conviction cannot be based on
mere possibility. It has to be proved, as stated, beyond reasonable
doubt.
51. Truly, it is a case of brutal killing. In fact, according to
the prosecution, the pressure cooker by which the head of the
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deceased was hit had flattened. The impact could be much heavier.
The prosecution has not found a single piece of evidence that there
was blood found on the cloths of the appellant.
52. What is being argued that the appellant was present at
the spot. The presence of the appellant in the morning at the place
of incident cannot be said to be abnormal. He was a gardener
appointed, on contract basis, by the Horticulture Department. He
has stated that because the water runs in the morning only, he had
come early in the morning in order to fill the water. Even if this
explanation is found to be false, this part of evidence per se may
not be the sole basis of conviction of the appellant. There is no
other link as such connecting the appellant to the offence.
53. PW 2 Smt. Beena Devi has also stated that her
husband i.e. the deceased was staying with one ‘Tiwari’. Who is
that Tiwari? Why has he not been examined? PW 2 Smt. Beena
Devi has also stated that the pressure cooker, which was recovered
from the room, is their pressure cooker. The question is if the
deceased was staying in the house of PW 5 Anand Prasad, how the
pressure cooker reached in the room at a distance in the building of
Horticulture Department. This has even not been clarified by the
prosecution. And further, if the appellant was staying in the room,
how the pressure cooker of the deceased was found from the room.
54. On behalf of the prosecution, it is argued that the
appellant was working in the Horticulture Department Building at
Gunaditya Pali. If he was not residing in the room, he must be
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knowing as to who was the occupant of the room, therefore, burden
is on him under Section 106 of the Evidence Act.
55. Section 106 of the Evidence Act with illustration reads
as follows:-
“106. Burden of proving fact especially within knowledge. — When any fact
is especially within the knowledge of any person, the burden of proving that fact
is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the
character and circumstances of the act suggest, the burden of proving that
intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of
proving that he had a ticket is on him.”
56. The Horticulture Department Building at Gunaditya
Pali is at a public place. Admittedly, on the first floor, there was
office of the Horticulture Department in the building and adjacent
to the room, one room was vacant, as told by PW 10 Diwan Singh.
It was almost a public place. It cannot be said that the appellant
only has especial knowledge as to how the room adjacent to the
office room on the first floor of the Horticulture Department
Building at Gunaditya Pali was used. This does not attract the
provisions of Section 106 of the Evidence Act. Therefore, the
arguments made on behalf of the prosecution on that aspect has
less merit for acceptance.
57. In view of the foregoing discussions, we are of the
considered view that the prosecution has not been able to prove
that the room on the first floor of the Horticulture Department
Building was the residential room of the appellant.
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58. Having considered the entire material available on
record, this Court is of the view that the prosecution has utterly
failed to prove the charges levelled against the appellant and the
appellant ought to have been acquitted of the charges levelled
against him. Learned court below has committed an error in
convicting and sentencing the appellant. Therefore, the appeal
deserves to be allowed.
59. The appeal is allowed. The judgment and order dated
21.05.2018/28.05.2018 passed by the Sessions Judge, Almora in
Sessions Trial No. 19 of 2017, State v. Deepak Singh Bisht,
whereby the appellant has been convicted and sentenced for the
charges under Sections 302, 201 IPC and Section 3(2)(v) of the
SC/ST Act is set aside.
60. The appellant Deepak Singh Bisht is acquitted of the
charges under Sections 302, 201 IPC and Section 3(2)(v) of the
SC/ST Act.
61. The appellant is in jail. Let he be released forthwith, if
not wanted in any other case, subject to his furnishing personal
bond and to sureties each of the like amount to the satisfaction of
the court concerned under Section 437A of the Code.
62. Let a copy of this judgment along with the trial court
record be sent to the court concerned.
(Alok Mahra, J.) (Ravindra Maithani, J) 25.08.2025 25.08.2025 Avneet/