Mukesh Thapliyal vs State Of Uttarakhand

(Per: Hon'ble Pankaj Purohit, J.)

This appeal, preferred by the appellant (hereinafter referred as accused) from jail, is directed against the judgment and order dated 24.02.2018/26.02.2018 passed by learned Sessions Judge, Rudraprayag in Sessions Trial No.06 of 2017, State vs. Mukesh Thapliyal, whereby the accused Mukesh Thapliyal was convicted under Section 302 of IPC and sentenced to undergo rigorous imprisonment for life and a fine of Rs.10,000/- with default stipulation of a rigorous imprisonment for a period of one year, he was further convicted under Section 436 of IPC and sentenced to undergo rigorous imprisonment for five years and a fine of Rs.5,000/- with default stipulation of one year additional rigorous imprisonment, he was further convicted under Section 201 of IPC and was sentenced to undergo rigorous imprisonment for three years and a fine of Rs.5,000/- with default stipulation of 6 months rigorous imprisonment. All the sentences were directed to run concurrently.

The prosecution case in brief is that an FIR was lodged by PW1- Smt. Kamana Devi, whereby, it was alleged that some unknown persons had murdered Smt. Vimla Devi (her mother-in-law) last night by setting the house on fire. During investigation, the house was found scattered and the gas cylinder was found open. She in her FIR also suspected robbery. On the basis of the above report, the chick FIR was lodged in Crime No.34 of 2016 on August 27th of 2016 at around 13.30 hours. After investigation, PW 11 Inspector Darwan Singh Panwar submitted a charge-sheet No.5/17 against the accused person under Section 302, 394, 436 and 201 of IPC. Learned Magistrate took cognizance of the aforesaid offence and committed accused to session court for trial. The Session Court thereafter framed charges under Section 302, 394, 436 and 201 of IPC to which the accused pleaded not guilty and claimed to be tried.

To establish its case, the prosecution produced as many as eleven witnesses, namely, PW-1 Smt. Kamana Devi, PW-2 Smt. Lajjo Devi, PW-3 Constable Clerk Virendra Tomar, PW-4 Mr. Vivek Thapaliyal, PW-5 Mr. Ramesh Lal, PW-6 Smt. Vandana Godiyal, PW-7 Mr. Brahmi Dutt, PW-8 Mr. Durlabh Singh, PW-9 Dr. V. Bhardwaj, PW-10 Inspector Kunwar Singh Bist & PW-11 Inspector Darwan Singh Panwar. The defence didn't produce any witness.

The prosecution also submitted the following documents as documentary and material evidence:-

After prosecution evidence, the statements of accused were recorded under Section 313 Cr.P.C. in which he stated that he was innocent and was falsely implicated by the police.

During trial, PW1- Smt. Kamana Devi in her examination-in-chief stated that she was telephonically informed about the alleged incident at about 8:00 am on 27.08.2016 and she reached there at about 9:00 am. When she reached there, she saw that police was present at the home and some people were engaged in fighting with fire. She further states that bedding and clothes were found over the body of her mother-in-law and gas cylinder was connected to the regulator which was found open and the gas pipe was pointing towards her. She further stated that the house articles were scattered and the jewelleries were missing. She alleged that Mukesh Thapliyal must have killed her mother-in-law as he wanted to take revenge of the fact that Smt. Vandana i.e. the daughter of the deceased had brought disrepute to him by telling everyone that he was physically involved with Km. Shobha and also that Km. Shobha gave birth to illegitimate child of Mukesh Thapliyal.

PW2- Smt. Lajjo Devi in her examination-in-chief stated that she was the first person who saw smoke coming out of Vimla Devi’s house and she informed Sharananad who was the neighbour about the said incident. In her cross examination, she admitted that Vimla Devi’s house is at a secluded place and her house is around half a kilometer away from Vimla Devi’s house. She also stated that she did not know who set the house at fire and murdered Vimala Devi.

PW3- Constable Clerk Virendra Tomar is a formal witness who wrote the FIR, he proved chik FIR (Ex.Ka 2) GD of registration of FIR (Ex.Ka 3).

PW4- Vivek Thapliyal is the son of deceased. In his examination-in-chief, he stated that he lived in Rishikesh and was not present at the alleged place of incident on that fateful night. He also stated that the accused had the requisite mens rea to kill his mother as he thought that his sister Km. Vandana had brought disrepute to his family as she told everyone in the village about the accused illicit relation with Km. Shobha and also about their illegitimate child.

PW5- Ramesh Lal also supported the statements made by PW4 and PW1 regarding the fact that the accused was in an illicit relationship with Km. Shobha and he also stated that he was there outside the cave where the illegitimate child of the accused and Km. Shobha was born.

PW6- Smt. Vandana Godiyal is the daughter of the deceased. In her examination-in-chief, she stated that Km. Shobha was her friend and one day when they both were in the jungle, Km. Shobha herself told her about the fact that she was pregnant with the accused child. She further stated that the child of Shobha was born in a cave and the accused killed that child and absconded thereafter. He only returned in 2015 and upon his returned, her mother i.e. the deceased apprehended that the accused may harm the family.

PW7- Brahmi Dutt is a neighbour of the deceased. On his examination, he stated that after getting the information of the alleged incident, he rushed to the house of the deceased where he saw that the body of the deceased was lying in burnt condition and the gas pipe was towards her face.

PW8- Durlabh Singh is also a formal witness and he is witness of the scene of crime and also the inquest report. He stated that he reached the alleged place of incident after he was informed about the incident by Mr. Asha Ram Thapliyal. He identified his signature on the inquest report.

PW9 – Dr. V. Bhardwaj is a doctor and a member of postmortem team. He proved postmortem report (Ex.Ka 5). In his examination, he stated the fact that the dead body reached him in a burnt condition and in his opinion, after around 3-4 hours of death.

PW10- Inspector Kunwar Singh Bisht is first Investigation Officer. In his examination-in-chief, he stated that he reached at the place of occurrence at about 7.45 A.M. as soon as the police got information of fire in dwelling house of the deceased. He corroborated the Inquest Report (Exhibit Ka-4) prepared by him. He also stated that he collected the material evidence surrounding dead body such as a piece of Rajai (quilt), a broken lock & a broken swivel (Kunda). On 27-08-2016, he drew the site-plan (Exhibit Ka-10) of place of occurrence at the instance of PW-1 Smt. Kamana Devi. He sealed the dead body and sent it for post-mortem. He also stated that he arrested Mr. Mukesh Thapaliyal on 05-09-2016, and proved arrest memo & information memo (Exhibit Ka-15 & Ka-16).

PW11- Inspector Darwan Singh Panwar is the second Investigation Officer who in his examination-in-chief stated that he recovered an iron rod at the instance of the accused under section 27 of Indian Evidence Act. He also stated that he submitted a charge-sheet to the court after completion of the investigation.

It is vehemently argued by the learned amicus curiae for the accused that the learned trial court convicted the accused on the basis of circumstantial evidence that too without proving the chain of events. He also submitted that there are no eye-witnesses to the alleged incident and the conviction by the learned trial court is erroneous as he convicted the accused merely on the basis of suspicion that too only on the basis of the fact that in 2009, the accused threatened Smt. Vandana Godiyal as she has leaked the information of the accused illicit relationship with Km. Shobha and illegitimate child delivered by Km. Shobha to villagers. He argued that the deceased person had no role in leaking the alleged information, therefore, it is hard to fathom that he killed the deceased that too after around 7 years.

Per contra, the learned State Counsel supported the prosecution case.

Having heard the learned counsel for the parties and on perusal of the record, this Court is of the considered opinion that the entire case is based upon the circumstantial evidence and it is a settled proposition of law that to sustain a conviction on the basis of circumstantial evidence following conditions must be established:-

My aforesaid view is based upon the golden principles enumerated in the landmark case of Sharad Birdhi Chand Sarda vs. State of Maharashtra, 1984 AIR 1622. Here in the case in hand, it is very clear from the perusal of the record that the conviction is based entirely upon hearsay evidence and no prosecution witness has himself seen the accused putting the house on fire and killing the deceased person nor did any witness see the accused at alleged place of incident. It is very hard to believe that the accused would kill the deceased because he wanted to take revenge of a rumour circulated against him that too by the daughter of the deceased Km. Vandana (PW-6) that too after a gap of 7 years. The prosecution failed to establish its case beyond reasonable doubts and also was not able to satisfy the principles of conviction by circumstantial evidence laid down in the judgment of Hon’ble Apex Court in the case of Sharad Birdichand Sarda’s case (supra). Learned Trial Court also placed reliance upon the statement of the deceased person to PW-1 and PW-6 with aid of section 32(1) of the Evidence Act, 1872 treating it to be dying declaration. But this Court is afraid if those statements would fall under Section 32(1) of the Evidence Act, 1872. The timing of those statements are not there in the record of the case. The deceased was found dead by PW-1 and PW-6. Learned trial court also took into account the recovery statement made under Section 27 of the Indian Evidence Act, 1872 to convict the accused. But it is a settled principle of law that discovery made under Section 27 of the Indian Evidence Act, 1872 is only a corroborative piece of evidence and cannot form the sole basis of conviction. It is only a link in chain of circumstantial evidence. Moreover the recovery was made from an open space which was accessible to the public. No injury was found upon the body of the deceased. As per postmortem report, death was due to burn-injuries. Therefore, much reliance cannot be placed over it. My aforesaid view is supported by the principles laid down in the judgment of Hon’ble Supreme Court in the case of State (NCT of Delhi) vs. Navjot Sandhu alias Afsal Guru (2005) 11 SCC 600.

In this view of the matter, it is safe to conclude that the prosecution failed to prove its case beyond all reasonable doubt against the accused. Accused cannot be convicted only on the basis of suspicion howsoever strong.

The upshot of the aforesaid discussions is that the appeal deserves to be allowed. Accordingly, present appeal is allowed and the impugned judgment and order dated 24.02.2018 passed by the court of learned Session Judge, Rudraprayag, is hereby set-aside. The accused is acquitted of charges under Sections 302, 201 and 436 of IPC. The accused is on bail vide court’s order dated 02.08.2025, he need not surrender unless his presence is wanted in any other case.

Let Trial Court Record be immediately sent back to the trial court for consignment.