GOPAL SINGH & ANR.versusSTATE OF UTTARAKHAND

                 [2025] 2 S.C.R. 1174 : 2025 INSC 263

                            Gopal Singh & Anr.
                                     v.
                           State of Uttarakhand
                    (Criminal Appeal No. 1408 of 2014)
                              06 February 2025
               [Abhay S. Oka* and Ujjal Bhuyan, JJ.]


                           Issue for Consideration
       Trial court convicted the appellants under Sections 302 and 323
       read with Section 34 of the Indian Penal Code, 1860. High Court
       altered the conviction to Section 304 Part II, IPC. Whether the
       identity of the appellants as accused was established. Appellants,
       if entitled to acquittal.

                                  Headnotes†
       Evidence – Identity as accused not established – Trial court
       convicted the appellants u/ss.302, 323 r/w s.34, IPC – High
       Court altered the conviction to s.304 Part II, IPC – Interference
       with:
       Held: Identity of the present appellants as accused was not
       established before the Court by any of the witnesses – There
       was no evidence against the appellants – When the prosecution
       alleges that a particular person has committed an offence, it is its
       duty to establish the identity of the accused as the person who
       has committed the offence by adducing evidence – This is very
       fundamental going to the root of the matter however, was ignored
       by the Sessions Court and the High Court – Impugned judgments
       as regards the appellants are quashed and set aside – Appellants
       acquitted. [Para 5]

                                  List of Acts
       Penal Code, 1860.

                               List of Keywords
       Identity as accused not established; Court Witnesses; Hearsay
       Evidence.


* Author
[2025] 2 S.C.R.                                                       1175

               Gopal Singh & Anr. v. State of Uttarakhand


                           Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     1408 of 2014
     From the Judgment and Order dated 24.04.2012 of the High Court
     of Uttarakhand at Nainital in CRLA No. 187 of 2003

                        Appearances for Parties
     Advs. for the Appellants:
     H. L. Chumber, Ms. Roopa Paul, Parveen Paul, Satyendra Kumar,
     Roshan Singh Thakur, Shivam Birt, Vishal Rathee.
     Advs. for the Respondent:
     Akshat Kumar, Ms. Anubha Dhulia.

                Judgment / Order of the Supreme Court

                                Judgment

     Abhay S Oka, J.

1.   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.
2.   The case of the prosecution is that PW-1, the deceased and the
     accused were residents of the same village, and there was a prior
     enmity between them. On 21st November 1997, at around 10:30
     p.m., 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
1176                                                         [2025] 2 S.C.R.

                         Supreme Court Reports


     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.
3.   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.
4.   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
[2025] 2 S.C.R.                                                        1177

                  Gopal Singh & Anr. v. State of Uttarakhand


     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.
5.   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.
6.   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.
7.   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.
8.   The bail bonds of the appellants are cancelled.
9.   The appeal is, accordingly, allowed.
10. Pending application(s), if any, shall stand disposed of.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Divya Pandey