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                   (Non-Reportable)

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 859 OF 2007

Tara Singh ……..Appellant

Vs.

State thr. Home Secretary, Uttarakhand              ……..Respondent

WITH

CRIMINAL APPEAL NO. 1722 OF 2012

                                        J U D G M E N T

A.K.SIKRI,J.

1. The appellants  in  these  two separate  appeals  challenge  the

impugned judgment and order dated 16.5.2006 passed by the High

Court of Uttranchal whereby the High Court has been pleased to

confirm the conviction and sentence of the appellant to undergo life

imprisonment  u/s  302  IPC  and  further  sentence  of  four  years

rigorous imprisonment u/s 201 IPC.

2.   The appellants  were  charged  for  committing  murder  of  5

years old boy named Bharat Singh.  As per the prosecution version,

Bharat Singh was the grandson of Ram Singh.  Ram Singh was

grazing the cattle on 15.10.1982.  At about 1.30 p.m. on that day,

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he  instructed  his  grandson  Bharat  Singh  (the  deceased)  to  look

after the cattle as he was going to his house for lunch. The boy

obeyed the instructions of his grandfather and started grazing the

cattle.   After  some  time,  when  Ram Singh  came  back  from his

house, he found the boy missing. He called out his grandson by

name but without any response. On this, Ram Singh along with his

son  Pratap  Singh  (Uncle  of  missing  boy  and  the  complainant)

started their search for the boy. When the boy was not traced till

evening Pratap Singh (PW-4) even informed the Patwari (Revenue

Officer) about this.  He also joined the father and grandfather in

searching the missing boy. The search went on till late night but

with no results. However, when the search began next morning i.e.

on  16.10.1982,  at  about  11.00  a.m.  the  dead  body  of  the  boy

Bharat Singh was found lying in a cave. FIR No.A-5 was lodged with

the  Patwari  in  which Diwan Singh son of  Nathu Singh,  Ramesh

Singh s/o Diwan Singh and Diwan Singh s/o Mahendra Singh were

named on suspicion by the complainant.  The dead body was taken

into  custody  by  Patwari  (PW5)  who  prepared  the  inquest  report

(Ex.A6),  sketch  of  the  dead  body  (Ex.A-7)  and  the  sample  seal

(Ex.A-10).  At  about  3.10  P.M.  on  18.10.1982  the  autopsy  was

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conducted of the deceased Bharat Singh by Dr.C.B.Pal (PW2) in the

district Headquarters at Pithoragarh who prepared the post-mortem

report  (Ex.A1).  The  said  Medical  Officer  found  following  ante

mortem injuries on the body of the deceased:

a. Legature  marking  2.5  cm.  in  bredth  encircling  the  next transversely  and obliquely.  The  whole  of  the  legature  mark depressed encircling upto back of both ears, knot on the left side.

b. Lacerated wound on the back of head measuring 3.5 cm. x 1 cm. x bone deep.

c. Abrasion mark measuring 3.5. cm x 0.5 cm. obliquely on the left side of the forehead.

d. Contusion mark measuring 5 cm x 2 cm on the anterior part of left axial.

e. Multiple  contusion  and  abrasion  mark  present  all  over  the body.

f. Contusion mark 4 cm x (six) just below the chin.

3. The  Investigation  Officer  after  investigation,  submitted  the

charge-sheet (Ex.A-17) on 29.1.1983 against four accused persons

namely  Ramesh  Singh  s/o  Diwan  Singh  (S/o  Mahendra  Singh),

Diwan Singh s/o Mahendra Singh, Diwan Singh s/o Nathu Singh,

Tara  Singh  s/o  Diwan  Singh  s/o  Nathu  Singh.  The  name  of

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appellant Tara Singh figured in the charge sheet, though in the FIR

it was not mentioned.

4. On 27.9.1983, the ld. Sessions Judge Pithoragarh framed the

charges  against  the  accused Diwan Singh s/o  Nathu Singh and

accused  Diwan  Singh  s/o  Nathu  Singh  relating  to  offence

punishable  u/s  302  r/w  Section  34  of  the  IPC  and  he  further

framed charges against accused person Ram Singh and Tara Singh

(the appellant herein) under 3 heads i.e. u/s 302 of the IPC, u/s

364 of the IPC and u/s 201 of the IPC.  All the accused persons

pleaded not guilty and claimed to be tried.

5. After  the  trial,  the  learned  Sessions  Judge  pronounced  his

judgment  dated  16.11.1984  thereby  acquitting  Diwan  Singh  s/o

Nathu Singh and Diwan Singh s/o Mahendra Singh of the charge of

murder under Section 302 IPC. However, in so far as the appellants

are  concerned,  they  were  convicted  under  Section  302  IPC  for

committing the murder of Bharat Singh as well as under Section

201  IPC  for  concealing  the  dead  body  in  a  cave.  Both  were

sentenced to imprisonment for life under Section 302 IPC and 4

years  rigorous  imprisonment  under  Section  201  IPC.   Both  the

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convicted persons filed their  separate  appeals  in the  High Court

questioning the veracity of  the judgment of  the learned Sessions

Judge. State also filed appeal against that part of the said judgment

whereby other two accused persons were acquitted by the Sessions

Judge.  All these three appeals were heard together and decided by

the High Court vide judgment dated May 16, 2006.  All the three

appeals viz.  that of the State as well  as of the appellants herein

have  been dismissed.   In essence,  the judgment of  the Sessions

Judge stands affirmed in its entirety by the High Court.   

6. Still not satisfied, the appellants have approached this Court

claiming themselves to be innocent persons who are wrongly framed

and convicted in the said case.

7. At the time of hearing, nobody appeared for the appellant Ram

Singh.  Mr.  J.S.  Attri,  learned  senior  counsel  appearing  for  Tara

Singh submitted that on the basis of purported evidence appearing

on record there could not have been any conviction of the appellant,

particularly that of Tara Singh. His first submission was that Tara

Singh was not named in the FIR and was unnecessary roped in at a

later  stage.   His  first  submission  was  that  even  as  per  the

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complainant (PW4) who had lodged the FIR, the suspects were other

three persons and not  Tara Singh.  This argument hardly carries

any substance. Merely because the complainant did not suspect the

involvement of the appellant Tara Singh would not mean that he

could not be named in the charge sheet when during investigation it

came to light that he was also perpetrator of the crime. Rather in

such a situation not implicating him would have been the travesty

of justice.  It is a matter on record that there was no known eye

witness to the crime and because of this reason. Other three names

were also  mentioned  only  on suspicion.  During  the  investigation

when the statement of  Tara Dutt  (PW1)  and Diwan Singh (PW3)

were  recorded,  role  of  the  appellant  Tara  Singh  in  the  crime

surfaced. Therefore, non-mentioning of the name of Tara Singh in

the FIR would be of no significance.  

8. Another argument raised by Mr. Attri was that the testimony

of Tara Dutt (PW1) is not reliable. We may record at this stage that

PW1 is the witness to the ‘last seen’ incident.  As per his statement,

the accused persons live in Bhaati Gaon which is at a distance of

one mile from his village.  He further deposed that on 15th October,

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1982 while he was returning after grazing the cattle, he had seen

two  accused  named  Tara  Singh  and  Ramesh  Singh  (appellants

herein) who were holding Bharat Singh (the deceased).  They had

clasped his mouth and were taking him from the side Ganga Nath

Temple  to  downwards  direction.  Very  next  morning,  he  left  his

house for going to ‘Diety Shanigaad Dewta’ and he returned from

there on fifth or sixth day. In his cross-examination, he stated that

he had seen the child carrying from a distance of ¾ of a mile.  He

was 75 years of age. He admitted that his eye-sight was weak.  

9. Inviting out attention to this part of the cross-examination, it

was argued that an old man of 75 years with failing eye sight could

not have seen or recognized the appellants and deceased from such

a  far  away  distance.  We  are  not  convinced  with  this  argument

either.  Had it been an incident on planes, probably assertion of the

learned  senior  counsel  that  it  was  difficult  to  recognize  persons

from such a  distance  could  carry  some weight.  However  we  are

dealing with the incident which occurred in a hilly area and it is not

difficult to spot a person from higher height at that distance.  In the

hilly  terrain,  the  aerial  distance  is  much  below  than  the  land

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distance. We have gone through the entire testimony of the said

witness who seems to be the totally disinterested and independent

witness.

10.  Mr. Attri also made efforts to discredit the testimony of other

witness  namely   Daan  Singh  (PW3).  Mr.  Daan  Singh  has  made

statement  to  the  effect  that  his  house  is  about  ½ km from the

house  of  Diwan Singh  s/o  of  Mahendra  Singh.  On 15th October

1982 when he was coming from Bisonia Tok, which is in his village,

with bundle of chhilka on his head at about 1.30 or 2.00 p.m.,  he

saw Bharat Singh taking care of his goats near Ganganath temple.

Appellant Ramesh Singh came from downwards with appellant Tara

Singh behind him and both of them sat with Bharat Singh. After

few hours, he came to know Bharat Singh had disappeared as there

was talk in the village to this effect. He joined the village persons

who were searching for Bharat Singh. The next day, the Patwari

came to the village and they started searching for the boy. He told

village Pradhan as well as grandfather of Bharat Singh at that time

that he had seen the deceased Bharat Singh with appellants on the

previous day. The submission of Mr. Attri is that conduct of Daan

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Singh is very natural unnatural as he should have told about the

said  incident  on  the  same  day  when  he  found  Bharat  had

disappeared. However,  this fact by itself may not be sufficient to

discredit the testimony of Daan Singh (PW3) when examined along

with other circumstances. It has come on record that he is related

to the informant’s family as well as family of the accused persons.

Thus, he was equally known to both and had no axe to grind. After

going  through  his  entire  testimony  including  lengthy

cross-examination, we find that it has remained unshaken.  He is

witness to ‘last seen’. The High Court has rightly observed that his

statement appears to be natural and true.

11. No doubt, it is not a case of direct evidence as there is no eye

witness to the actual occurrence i.e. there is no witness who has

seen  the  accused  person  strangulating  Bharat  Singh(deceased).

However, at the same time having regard to the aforesaid discussion

and after reading the testimony of all other witnesses, we agree with

the conclusion of the courts below that there is a complete chain of

circumstances proving the charges against the appellants herein.

This chain of circumstances consists of following links:

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“i) The  accused  persons  were harbouring  enmity  against  the  family  of deceased.

ii) Immediately  three  days  before  the date  of  incident  from  the  side  of  accused persons threat was given to the family of  the deceased  that  their  family  lineage  would  be brought to an end.

iii) Three  days  after  the  threat  Bharat Singh(deceased), a young boy of five years, who was the only member of third generation in the family  of  Ram  Singh  (grandfather  of  the deceased) was found missing.

iv) Half  an  hour  before  he  was  found missing,  when  he  was  grazing  the  cattle  all alone, it was seen by Dan Singh (PW3), one of the prosecution witnesses, that the appellants Ramesh Singh and Tara  Singh  came to  near deceased and sat with him.

v) Thereafter  Tara  Datt(PW1)  saw appellants  Tara  Singh  and  Ramesh  Singh taking Bharat Singh with them by holding him physically and his mouth gagged.

vi) The boy (Bharat Singh) could not be traced out on 15.10.1982 even after in all the places  where  he  could  have  been found.  The next day i.e. on 16.10.1982, the dead body of the deceased, on search, was found in a cave.

vii) On postmortem of the dead body it was  found  that  the  boy  had  died  of strangulation.”

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12. The last argument of Mr. Attri was that investigation in this

case was conducted by a Patwari and not by a Police Officer and

therefore entire  investigation is  vitiated.  In the first  instance,  we

may point out that no such argument was raised before the trial

court and the High Court. In any case, the learned counsel for the

respondent  has  produced  a  copy  of  the  Notification

No.494/VIII/-/418-16 dated 7.3.1916 which was issued by the Lt.

Governor of the United Province in exercise of power conferred upon

him by Section 6 of the Scheduled Districts Act, 1874.  Vide this

Notification rules for appointing Police Officers and for regulating

the  procedure  and  for  prescribing  the  powers  and  duties  to  be

exercised  and  performed by  them in  the  District  of  Almora  and

Garwal and the Hill Pattis of Nainital, have been framed. Appendix

to  this  Notification  confers  various  powers  and  duties  which

Patwaris  are required to  perform as police officers.  It  specifically

confers upon them the powers to register the reports of crime and

conduct the investigation in relation thereto. Though lots of other

documents  are  filed  to  demonstrate  this  very  legal  position  viz.

Patwari  is  duly  authorized  to  conduct  such  investigation  in  the

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absence of a police officer, it is not necessary to dilate upon this

aspect any further.   

13. As a result, these appeals are held to be devoid of any merit

and are accordingly dismissed.

…………………………….J. (K.S.Radhakrishnan)

…………………………….J. (A.K.Sikri)

New Delhi, Dt. February 25, 2014

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