Uttarakhand High Court
Dhani Ram And Another …..Appellants vs State Of Uttarakhand on 9 July, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
1
Judgment reserved on: 24.06.2025
Judgment delivered on: 09.07.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.19 of 2007
Dhani Ram and Another .....Appellants
Vs.
State of Uttarakhand .....Respondent
With
Criminal Appeal No.20 of 2007
Babloo .....Appellant
Vs.
State of Uttarakhand .....Respondent
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Presence:
Mr. Milind Raj, learned counsel for the appellants in
CRLA/19/2007.
Ms. Monika Pant, learned counsel for appellant in
CRLA/20/2007, appeared through video
conferencing.
Mr. S.S. Chauhan, learned D.A.G., Mr. Bhaskar
Chandra Joshi, learned A.G.A. with Mr. Vikas Uniyal,
learned Brief Holder for the State of Uttarakhand.
Hon’ble Pankaj Purohit, J. (Per)
Since both these criminal appeals are arising
out of same judgment and order and common question of
law and facts are involved, hence, they are taken up
together and are being decided by this common
judgment. For the sake of brevity, the facts of CRLA
No.19 of 2007 are taken into consideration.
2. These criminal appeals are preferred by the
appellants assailing the judgment and order dated
11.01.2007/ 12.01.2007 passed by learned Sessions
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Judge, District Tehri Garhwal, in Sessions Trial No.21 of
2005 State Vs. Dhani Ram @ Dugri and Ors., whereby, the
said Court has convicted the appellants for the offence
punishable under Section 304 IPC read with 34 IPC and
sentenced them seven years’ rigorous imprisonment each
with fine of Rs.3,000/- each, with default stipulation, six
months’ additional rigorous imprisonment each.
3. The prosecution story in brief is that one-Mr.
Bhagwati Prasad on 22.04.2005, came to Revenue P.S.
Navakot, Tehsil-Jakhnidhar, District Tehri Garhwal and
informed that the ex-village Pradhan had informed him
that a person’s dead body was lying at newly constructed
Navakot motor road band. On hearing this, the
concerned Patwari reached the alleged spot and prepared
the Inspection Report, Site Map and sent the dead body
for postmortem. Thereafter, on the same day at around
06:00 PM, one Mr. Sunil S/o Amar Dev, lodged a report
that his father’s dead body was found at Navakot road
band and he had suspicion that someone had killed his
father and thrown his body down the road. The chick FIR
was registered against unknown persons under Section
302 IPC on the same day.
4. On the basis of the above facts, the Naib
Tehsildar appointed Supervisor Kanungo as the
Investigating Officer, who after investigation, has filed the
charge-sheet against the appellants/accused persons,
who were last seen with the deceased, under Section 304
IPC, in the Court of learned Judicial Magistrate, who in
turn committed the case to learned Sessions Judge, Tehri
Garhwal, for trial.
5. Thereafter, on 17.10.2005, learned Sessions
Judge, Tehri Garhwal, framed charges under Section 304
IPC read with 34 IPC. The charges were read over and
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explained to the appellants/accused persons, who
pleaded not guilty and claimed to be tried.
6. Prosecution has examined as many as ten
witnesses i.e. PW-1 (Pankaj Raturi), PW-2 (Rajendra
Singh), PW-3 (Sunil Datt), PW-4 (Debendra Datt), PW-5
(Smt. Harshpati), PW-6 (Ramesh Chandra), PW-7
(Manohar Lal), PW-8 (Dr. Anand Shukla), PW-9 (Patwari
Vishal Singh) and PW-10 (Revenue Inspector Gambhir
Singh) to substantiate and prove the charges against the
appellants.
7. Thereafter, the statements of appellants/
accused persons were recorded under Section 313 of the
Cr.P.C., in which, they stated that they were innocent
and had falsely been implicated and claimed to be tried.
Appellants/accused persons-Dhani Ram @ Dugri,
Jagdamba Prasad and Babloo accepted that the deceased
was in their truck on 21.04.2005, but, denied any sort of
enmity with the deceased and stated that he deboarded
their truck near the band and they have no knowledge
about what transpired thereafter. The learned Trial
Court, at the end of trial, has recorded the findings of the
appellants’ conviction. Hence, these Appeals.
8. During trial, PW-1 Pankaj Raturi deposed that
the deceased Amar Dev was his father and on the fateful
day, when he didn’t reach home, he went to search for
him towards Jakhni Dhar but he was not there, then he
went towards Kumhar Dhar and thereafter came to his
village when his father was not found at home, he went
to search for him again; on his way, he saw
accused/appellant Babloo, but due to fear, he didn’t ask
anything to him, he was roaming half naked; then he
went to Jakhni Dhar, next day, Rajendra Singh (PW-2)
told him that his father was accompanying with him and
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the appellants/accused persons in their truck No.5910
and he got down in Jakhni Dhar and the rest persons
were gone to Navakot. He further stated that on
22.04.2005 at about 08:00 am, Bhagwati Prasad
informed him that his father is lying dead near the band,
when he reached there; he found his father’s body in
naked condition. He also stated that the FIR was lodged
by his brother and denied false implication of accused
persons. In his cross-examination, he deposed that the
FIR was lodged by his brother and he did not see anyone
killing his father. He also stated in his cross-examination
that his father was not used to drink alcohol frequently,
he only used to drink at home.
9. PW-2 Rajendra Singh on oath deposed that he
was accompanying the deceased Amar Dev along with the
appellants/accused persons in the same truck, which
was driven by Dhani Ram-accused person. He further
deposed that he deboarded the truck at Navakot Motor
Marg Band at about 08:30 PM and all the other four
persons continued the journey, at that time the
deceased-Amar Dev was alive. He also informed that he
got to know about the death of the deceased on the next
day. On cross-examination, he accepted that the
appellants, deceased and he was drunk country made
liquor. He also accepted that the deceased was heavily
drunk. He accepted that he deboarded the truck near the
band but denied that the deceased deboarded the truck
in Navakot band along with him. He further stated that
he had no knowledge about the fact that what transpired
after he deboarded the truck.
10. PW-3 Sunil Datt in his examination-in-chief
deposed that on 21.04.2005, when his father did not
reach home on his usual time, he along with his brother
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Pankaj Raturi (PW-1) went to search for him, when they
saw a man running half naked, they did not asked him
anything due to fear. Thereafter, on 22.04.2005 at about
09:00 AM, they got to know from villagers that some
person was lying, when they reached there, their father’s
dead body was lying near the motor band in a half naked
condition he was wearing shirt but nothing on lower
body. He further deposed that when they reached there, a
crowd had already gathered over there. In his cross-
examination, he denied lodging of false report.
11. PW-4 Debendra Datt was a formal witness,
who recognized his signatures on the Panchnama as Ex-
Ka-2.
12. PW-5 Smt. Harshpati, who was the wife of
deceased Amar Dev reiterated the prosecution story and
supported the version of PW-1 and PW-3, she further
deposed that few days before her husband’s death, her
husband had informed her that he had a dispute with
the appellant-Dhani Ram @ Dugri about bringing the
clean sand. In her cross-examination, she stated that her
husband did not use to drink at home and she wasn’t
aware that whether he used to drink outside or not. She
also denied falsely implicating the appellants/accused
persons.
13. PW-6 Ramesh Chandra on oath deposed that
he has a photo studio near the alleged place of incidence.
He also deposed that he took photographs of the dead
body and surrounding area, after he was asked by
Patwari to do so. He proved material Exhibits 1 to 7.
14. PW-7 Manohar Lal was a formal witness and
verified his signature on the Panchnama.
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15. PW-8 Dr. Anand Shukla was the doctor, who
conducted the examination of dead body and on
examination, he found the following wounds on the
person of deceased:
1. There was a peeled bruise mark on the right side of the
head of the deceased about 4cm X 3cm.
2. The entire face was swollen.
3. There was 3 Cm X 2.5 cm laceration mark below the
mouth and nose and nose of the deceased was swollen
and broken.
4. Bruise mark on waist measuring 10 Cm X 5 cm.
5. Abraded mark on left knee measuring 5 Cm X 6 cm.
6. There were many peeling bruised mark on the upper part
of right leg.
7. There was 2 Cm X 2.5 cm bruised mark on left elbow.
In the internal examination he found that on the
right side of skull, there was blood clot under the skin
and the fracture was visible. This fracture was below the
Wound No.1 before the death of the deceased. There was
fracture on the nasal bones, brain was congested and
right side of the brain there was blood clot found. He
opined that the time of death was within 24 to 36 hours
and the death was caused due to head injury and also
stated that the deceased was intoxicated at the time of
death. In his cross-examination, he admitted that the
injuries and the death could be possible even due to
accidental fall but it is rare. He also admitted that if a
person fall due to intoxication, then also the said injuries
could be possible.
16. PW-9 Patwari Vishal Singh and PW-10
Revenue Inspector, were the revenue police authorities,
who investigated the case and supported the prosecution
story during trial. They proved charge-sheet, Site Plan.
17. Learned counsel for the appellants vehemently
argued that the entire case of prosecution is based on
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circumstantial evidence and the prosecution has
miserably failed to prove any link of chain and the
conviction recorded by the learned Trial Court is
untenable. He also submitted that there is no direct
evidence against the appellants and prosecution has
failed to bring any cogent and reliable evidence. He
further argued that the fact, that no blood marks were
found at nearby places and were only found at the place
where dead body was found, supports the theory that
death was caused due to accidental fall as a result of
high intoxication.
18. Learned counsel for the appellants submits
that investigation was not conduced in a proper manner
and in the absence of any evidence regarding prior
concert or meeting of minds, Section 34 IPC could not
have been attracted.
19. Per contra, learned State Counsel supported
the case of prosecution and submits that the learned
Trial Court, after careful examination of the evidences,
rightly came to the conclusion that the evidence of ‘last
seen together’ has been duly proved, which is sufficient
to convict the appellants.
20. Having heard the learned counsel for the
parties and on perusal of the Trial Court Record, this
Court is of the considered opinion that the accused
persons/appellants enjoys presumption of innocence and
the burden to prove the guilt of the accused persons/
appellants beyond reasonable doubt rests on the
prosecution. Here in the case in hand, even considering
the death to be homicidal and not accidental, there is
nothing more that the ‘last seen theory’ to implicate the
accused persons/appellants and it is a settled
proposition of law that ‘last seen theory’ is only a piece of
8
circumstantial evidence and it can only be used as a
cementing material to establish the link of chain of
events, but cannot be sole basis of conviction, as
although it is a substantive piece of evidence, but doesn’t
have substantial evidentiary value. Hon’ble Apex Court in
Kanhaiya Lal Vs. State of Rajasthan (2014) 4 SCC
715 has held that evidence on ‘last seen together’ is a
weak piece of evidence and conviction only on the basis
of ‘last seen together’ without there being any other
corroborative evidence against the accused, is not
sufficient to convict the accused for an offence
under Section 302 IPC. The following passage from the
judgment in paras 12 and 15 can be profitably referred:
“12. The circumstance of last seen together does not by itself
and necessarily lead to the inference that it was the accused
who committed the crime. There must be something more
establishing connectivity between the accused and the crime.
Mere non-explanation on the part of the appellant, in our
considered opinion, by itself cannot lead to proof of guilt
against the appellant.
15. The theory of last seen–the appellant having gone with
the deceased in the manner noticed hereinbefore, is the
singular piece of circumstantial evidence available against
him. The conviction of the appellant cannot be maintained
merely on suspicion, however strong it may be, or on his
conduct. These facts assume further importance on account
of absence of proof of motive particularly when it is proved
that there was cordial relationship between the accused and
the deceased for a long time. The fact situation bears great
similarity to that in Madho Singh v. State of Rajasthan, (2010)
15 SCC 588.”
21. Similarly, the Hon’ble Apex Court in
Rambraksh @ Jalim vs. State of Chhatisgarh (2016)
12 SCC 251 has reiterated above legal position in the
following words in paras 12 and 13:
“12. It is trite law that a conviction cannot be recorded
against the accused merely on the ground that the
accused was last seen with the deceased. In other words,
a conviction cannot be based on the only circumstance of
last seen together. Normally, last seen theory comes into
play where the time gap, between the point of time when
the accused and the deceased were seen last alive and
when the deceased is found dead, is so small that
possibility of any person other than the accused being
9the perpetrator of the crime becomes impossible. To
record a conviction, the last seen together itself would
not be sufficient and the prosecution has to complete the
chain of circumstances to bring home the guilt of the
accused.
13. In a similar fact situation this Court in Krishnan v.
State of T.N. (2014) 12 SCC 279 held as follows: (SCC pp.
284-85, paras 21-24)
“21. The conviction cannot be based only on
circumstance of last seen together with the
deceased. In Arjun Marik v. State of Bihar (1994)
Supp (2) SCC 372 this Court held as follows: (SCC p.
385, para 31)
’31. Thus the evidence that the appellant had
gone to Sitaram in the evening of 19-7-1985 and
had stayed in the night at the house of deceased
Sitaram is very shaky and inconclusive. Even if
it is accepted that they were there it would at
best amount to be the evidence of the appellants
having been seen last together with the
deceased. But it is settled law that the only
circumstance of last seen will not complete the
chain of circumstances to record the finding
that it is consistent only with the hypothesis of
the guilt of the accused and, therefore, no
conviction on that basis alone can be founded.’
22. This Court in Bodhraj v. State of J&K, (2002) 8
SCC 45 held that: (SCC p. 63, para 31)
’31. The last seen theory comes into play where
the time gap between the point of time when the
accused and the deceased were last seen alive
and when the deceased is found dead is so small
that possibility of any person other than the
accused being the author of the crime becomes
impossible.’
It will be hazardous to come to a conclusion of guilt in
cases where there is no other positive evidence to
conclude that the accused and the deceased were last
seen together.
23. There is unexplained delay of six days in lodging
the FIR. As per prosecution story the deceased
Manikandan was last seen on 4-4-2004 at
Vadakkumelur Village during Panguni Uthiram
Festival at Mariyamman Temple. The body of the
deceased was taken from the borewell by the fire
service personnel after more than seven days. There is
no other positive material on record to show that the
deceased was last seen together with the accused and
in the intervening period of seven days there was
nobody in contact with the deceased.
24. In Jaswant Gir v. State of Punjab, (2005) 12 SCC
438, this Court held that in the absence of any other
links in the chain of circumstantial evidence, the
appellant cannot be convicted solely on the basis of
10“last seen together” even if version of the prosecution
witness in this regard is believed.”
22. On perusal of the Trial Court Records, it
transpires that the conviction is based on presumption
and surmised and also on ‘last seen theory’ without any
other corroborating evidence thereby, even not satisfying
the conditions necessary to implicate the accused
persons/appellants by relying on circumstantial
evidence, as it is well settled law that in a case based on
circumstantial evidence, the prosecution is obliged to
prove each circumstance, taken cumulatively to form a
chain so complete that there is no escape from the
conclusion that within all human probabilities, crime was
committed by the accused and none else. Further, the
facts so proved should unerringly point towards the guilt
of the accused. Hon’ble Apex Court in a celebrated
judgment in Sharad Birdhichand Sarda vs. State of
Maharashtra (1984) 4 SCC 116 has laid down the
golden rules in the cases basing circumstantial evidence
which is to be proved by the prosecution.
(i). That chain of evidence is complete;
(ii). Circumstances relied upon by prosecution should be
conclusive in nature;
(iii). Fact established should be consistent only with the
hypothesis of the guilt of accused;
(iv). Circumstances relied upon should only be consistent
with the guilt of the accused;
(v). Circumstances relied upon should exclude every
possible hypothesis except the one to be proved.
23. In this view of matter, it is safe to conclude
that the prosecution failed to prove its case beyond all
reasonable doubt against the appellants.
24. The upshot of the aforesaid discussions is that
these appeals deserve to be allowed. Accordingly, both
the appeals are allowed and the impugned judgment and
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order dated 11.01.2007/12.01.2007 passed by learned
Sessions Judge, District Tehri Garhwal, in Sessions Trial
No.21 of 2005 State Vs. Dhani Ram @ Dugri and Ors., is
hereby set-aside. The appellants are on bail. They need
not to surrender. Their bail-bonds are cancelled and
sureties are discharged.
25. Let the T.C.R. be immediately sent back to the
learned Trial Court for consignment.
(Pankaj Purohit, J.)
09.07.2025
PN
PREETI
Digitally signed by PREETI NEGI
DN: c=IN, o=HIGH COURT OF UTTARAKHAND,
ou=HIGH COURT OF UTTARAKHAND,
2.5.4.20=63c75a8c4765581180a58d7478fadbe3833
1bac55c78b5f9f0276c16432f6aab,
NEGI
postalCode=263001, st=UTTARAKHAND,
serialNumber=2BA53171893B3C3CB3CCCAE81FAE0
64498483A83D84BDB0F9229D5BF08D959AC,
cn=PREETI NEGI
Date: 2025.07.09 16:11:35 +05’30’