Uttarakhand High Court
State Of Uttarakhand vs Vineet @ Chinu Pandit And Others on 21 August, 2019
Equivalent citations: AIRONLINE 2019 UTR 392
Author: R. C. Khulbe
Bench: Sudhanshu Dhulia, R. C. Khulbe
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Government Appeal No. 24 of 2010
State of Uttarakhand ..... Appellant
Versus
Vineet @ Chinu Pandit and others ....Respondents
With
Government Appeal No. 25 of 2010
State of Uttarakhand ..... Appellant
Versus
Sunil Rathi ....Respondent
Mr. V.K. Jemini, learned Deputy Advocate General along with Ms Mamta
Joshi, learned Brief Holder for the State/appellant.
Ms. Charanjeet Kaur, Mr. M.K. Ray and Mr. Abhishek Verma, learned
counsels for the respondents.
Reserved on: May 23, 2019
Date of Pronouncement: August 210, 2019
Coram:- Hon'ble Sudhanshu Dhulia, J.
Hon'ble R. C. Khulbe, J.
Per: Hon'ble R.C. Khulbe, J.
Both the above-titled government appeals have been preferred by the State challenging the judgment and order dated 12.03.2010 passed by the Additional Sessions Judge/IVth F.T.C., Haridwar in Sessions Trial No. 133 of 2006, "State Vs. Vineet and Others" and Sessions Trial No. 226 of 2006, "State vs. Sunil Rathi"
whereby learned Sessions Judge had acquitted the accused Vineet @ Chinu Pandit, Rajiv Sharma @ Meenu Pandit, Sanjya Chandana and Sunil Rathi, under Sections 307, 506, 120-B IPC.
2. The factual matrix of the case is that on 03.11.2005, the informant Pradeep Kumar Sahdev had given information to the Inspector, Kotwali, Roorkee with 2 the allegations that on that day at about 7:30 PM, while he was sitting in his shop, accused-Vineet Sharma @ Cheenu Pandit along with his brother Rajeev Sharma @ Monu Pandit, Sanjay Chandana and other accused, entered in his shop, and in order to commit murder of the applicant, they fired upon the informant with their weapons due to which the informant and his nephew Raghav sustained injuries. At that time Amit, who is the brother of the informant, was also present in the shop. On hearing the noise of firearm, the neighbours also gathered there. On the hue and cry raised in the market, the accused ran away from the spot after threatening the informant of dire consequences.
3. On the basis of this information (Ex. Ka-1), the Chick FIR (Ex. Ka-4) was lodged at 20:5 PM at Kotwali Roorkee. After investigation, the charge-sheets were submitted against the accused Vineet @ Chinu Pandit, Rajiv Sharma @ Meenu Pandit, Sanjya Chandana and Sunil Rathi, under Sections 307, 506, 120-B IPC.
4. During investigation, a country-made pistol of 315 bore, two live cartridges and one empty cartridge, which belonged to accused Vineet Sharma @ Chinu Pandit were recovered. Apart from that, one magazine of of country-made pistol, in which eight live cartridges were intact along with khokha, was recovered, which were used by the accused-Sanjay Chandana. On the basis of these recoveries, FIR Nos. 322 of 2005 and 323 of 2005 were lodged under Section 25 Arms Act against Vineet @ Chinu Pandit and Sanjay Chandana. On the basis of these FIRs, separate charge-sheets under Section 25 of Arms Act were filed against Vineet @ Chinu Pandit and Sanjay Chandana.
35. The concerned Magistrate took cognizance on the charge-sheets and committed the case to the Court of Sessions for trial. The charges were, accordingly, framed by the Sessions Court which were read over and explained to the accused persons. They denied the charges and claimed trial.
6. Prosecution was afforded opportunity to adduce evidence so as to prove the charges levelled against the accused persons. Prosecution recorded the statements of 11 witnesses in support of its case. The statements of PW-1 Raghav (injured), PW-2 Pradeep Kumar informant, PW-3 Amit Sahdev, who is the brother of the informant Pradeep Kumar, PW-4 Dr. Ajay Agrawal (who examined Pradeep Sahdev and Raghav) prepared the medical report, PW-5 Gafoor Alam, PW-6 Sahzad Khan, PW-7 Sanjeev Kumar, PW-8 Vijay Kumar, PW-9 Pramod Dhyani, PW-10 Surya Bhushan Negi, S.I. (I.O. of the case who conducted the investigation and submitted the charge-sheet as (Ex.Ka-11 and Ex. Ka-12) against the accused persons) and PW-11 Indra Sen, S.I., who prepared site plan as Ex. Ka-13 and submitted the charge-sheet as (Ex.Ka-15 and Ex. Ka-16) against the accused persons, Chick FIR (Ex. Ka-18) was lodged as Case Crime No. 322 of 2005, were recorded.
7. PW-1 Raghav stated that on the eve of Diwali fest in the last year, he had gone to his shop to collect his jacket. When he entered his shop he felt some crackers being fired but he did not see any crackers being fired at the place of incident. In the meantime, he was hit with a firearm on his leg. He did not know as to who had fired the shot.
8. PW-2 informant Pradeep Kumar stated that on 03.11.2005 at about 7:30 PM, he was sitting in his shop.
4Then Vineet and Sanjay Chandana, Rajeev Sharma and one unknown accused came there and started firing with their pistol and in order to commit murder, they fired two shots. At that time, his brother Amit and nephew Raghav were also present there. His brother raised alarm on which public gathered there, and witnessed the said incident. Thereafter, the accused ran away from the spot after threatening them. The accused had left one country-made pistol and a magazine at the spot. Thereafter, he went to the police station and lodged the FIR which is Ex. Ka-1. Thereafter, the police personnel reached at the spot where one country-made pistol, and one magazine were recovered from the spot. The recovery memo was, accordingly, prepared.
9 PW-3 Amit Sahdev stated that on 02.11.2005 at about 7:30 -8:00PM, he along with his brother reached at his shop. The accused Sanjay Chandana, Chinu Pandit, Monu and one other person entered the shop. The accused Chinu and Sanjay Chandana fired on his brother by which his nephew Raghav sustained injuries while his brother managed to escape. He and his brother ran inside the shop to save them. When the firing started, the people had gathered there. On this, all the accused, after threatening of dire consequences, ran away from the spot. Thereafter, his brother lodged the FIR. After some time of incident, police came on the spot. The police recovered a country made pistol, two live cartridges and three empty cartridges as well as one magazine from the spot.
10. PW-4 Dr. Ajay Aggarwal is the medical officer who examined Pradeep Sahdev. The following injuries were found on his person.
"1. 17cm x 10 cm right side of chest 6 cm below left axial.5
2. Tattooing 9cm x 3cm area on back of right side of wrist.
Both the injuries were caused by firearm, the injury no. 1 was kept under observation and injury no. 2 was of simple in nature."
11. On the same day, injured Raghav, aged about 12 years, was also medically examined. The following injury was found on his person: -
"1. Lacerated wound 1.5 cm x 5 cm which depth could not be measured which was above left knee and blood was oozing out the injury might have been caused by firearm. The injury was kept under observation."
12. PW-5 Gafur Alam and PW6 Shehzaad Khan stated that on 04.11.2005, in his presence, police had not taken into possession any object with regard to any case nor any document was prepared in this regard.
13. PW-7 Constable Sanjeev Kumar stated that on 03.11.2005. Pradeep Kumar had given a written complaint, on the basis of which case crime No. 321 of 2005, u/s 307, 506 of IPC was registered.
14. PW-8 Constable Vijay Kumar stated that on 04.11.2005, he along with S.I. Surya Bhushan Negi and Head Constable Surendra Pal Singh had gone to the Government Hospital, Roorkee. They did not take any public witness with them. The public witnesses were present in the hospital where Surya Bhushan Singh has taken into custody the shirt of injured. The recovery memo was prepared on spot and he along with other public witnesses were also made the witnesses, and their signatures on the recovery memo were obtained.
15. PW-9 Constable Pramod Dhyani stated that on 09.12.2005, he was posted at P.S. Kotwali Roorkee. On that day, Surya Bhushan Singh Negi had sealed a bullet which was taken out from the leg of injured Raghav. The 6 bullet was sealed in a match box in his presence and a recovery memo was prepared. The bullet is Ex. 8. He also signed on the recovery memo.
16. PW-10 SI Surya Bhushan Negi is the Investigating Officer of the main case under Section 307 IPC. The investigation was entrusted to him on 04.11.2005. During investigation, he recorded the statements of witnesses, inspected the place of occurrence and prepared the site plan Ex.Ka-6. From the spot, he recovered one country- made pistol of 315 bore, two live cartridges, one empty cartridge, one magazine with 8 live cartridges and one empty cartridge of 9mm and the recovery memo Ex.Ka-7 was prepared. After culmination of investigation, he submitted the charge sheet Ex.Ka-12 against the accused.
17. PW-11 SI Indra Singh is the I.O. of the case under Section 25 Arms Act. During investigation, he recorded the statements of witnesses, inspected the place of occurrence and prepared the site plan Ex.Ka-13. He also obtained the permission to prosecute the accused from the concerned District Magistrate which is Ex.Ka.14. After completion of investigation, he submitted the charge sheet Ex.Ka-16 against the accused.
18. Thereafter, the statements of the accused were recorded under Section 313 Cr.P.C. No oral or documentary evidence was led in defence.
19. As far as the offences under Sections 307, 506 and 120-B IPC against the accused Sunil Rathi are concerned, it needs to be mentioned that the said accused is not named in the FIR. As per the FIR, the accused Vineet Sharma @ Cheenu Pandit, Rajiv Sharma @ Meenu Pandit, Sanjay Chandana and one person entered in the shop of informant Pradeep and fired a shot 7 on him. In that incident, Pradeep Sahdev and Raghav sustained the injuries. But from the evidence, it is clear that at the time of occurrence accused Sunil Rathi was in jail. The prosecution has failed to prove his presence at the spot. Apart from that, there is no evidence on record, which shows that he hatched any conspiracy in the matter. There is no clinching evidence against him; hence there is no scope to interfere with the findings of the lower court regarding accused-Sunil Rathi.
20. As regard the other accused, namely, Vineet Sharma @ Cheenu Pandit, Rajeev Sharma @ Monu Pandit and Sanjay Chandana are concerned.
21. As per the FIR, the occurrence took place on 03.11.2005 at about 7:30 p.m. at the shop of the informant-PW2 Pradeep Kumar. To prove its case the prosecution produced as many as eleven witnesses.
22. PW1 injured Raghav did not support the prosecution story and he clearly stated that he did not notice as to who caused the gunshot injury to him.
23. PW2 Pradeep Kumar, who is the informant and also an injured, clearly stated that at the spot, the shopkeepers of the locality had gathered. The accused namely Chandana and Chinu entered into the shop. But in the cross-examination, he clearly stated that he did not receive any bullet injury and he further stated that the accused did not commit any marpeet with him. He also stated that he did not know who fired the gunshot. According to him, in the FIR, he had mentioned the name if person who fired gunshot on him, but in the FIR it is not clear who fired gunshot on him.
24. PW3 Amit, who is brother of PW2 Pradeep Kumar and an eye-witness as per the FIR, stated that at the spot, one tamancha, two live cartridges and one khokha (empty cartridge) were recovered. He also stated 8 that there was a hole in the show-case caused by bullet. In this regard, PW2 Pradeep Kumar also stated that the accused fired gunshot due to which the glass of show- case was broken. However, neither that show-case was shown in the map nor PW2 Pradeep Kumar gave any such statement to Investigating Officer (PW10 S.I. Suryabhushan Negi).
25. PW3 Amit Kumar also stated that the accused- Chandana did not fire gunshot on Pradeep. He also stated that his brother Pradeep had run away immediately. He further stated that at the time of incident, people of locality also reached there. But neither PW3 Amit nor PW2 Pradeep had disclosed the names of the persons who were present at the spot.
26. The medical reports of PW1 Raghav and PW2 Pradeep were prepared by PW4 Dr. Ajay Aggarwal but PW2 Pradeep Kumar clearly stated that he did not receive any gunshot injury while PW1 Raghav clearly stated that he di not know who caused the gunshot injury to him.
27. From the evidence of PW1 Raghav, PW2 Pradeep and PW4 Dr. Ajay Aggarwal, it is clear that the oral testimony of these witnesses does not support the medical report as prepared by PW4 Dr. Ajay Aggarwal.
28. The prosecution produced PW5 Gafoor Alam, in whose presence tamancha, cartridges and empty cartridges were recovered but he clearly stated that no recovery memo was prepared in his presence.
29. PW6 Sahjad is the person before whom the clothes of injured were taken by police and accordingly recovery memo was prepared. But he clearly stated that no such articles were taken by police into custody in his presence.
30. PW7 Sanjeev Kumar is a formal witness, who lodged the chick FIR as per the information given by PW2 Pradeep.
931. PW8 Vijay Kumar is the witness of memo of clothes. PW9 Pramod Dhyani is also a formal witness in whose presence the recovery memo of bullets (which was recovered from the leg of PW1 Raghav) was prepared.
32. PW10 S.I. Surya Bhushan Negi, who is the I.O. of the case, has stated that on 04.11.2005 he reached the hospital where PW1 Raghav and PW2 Pradeep were hospitalized. PW2 Pradeep stated that on the next day after lodging the FIR, he came back to his shop. This witness did not disclose that on 04.11.2005 he was hospitalized.
33. The bullet which was recovered from the leg of PW1 Raghav and the empty cartridge and tamancha, which were recovered from the spot were not sent to FSL for testing, which casts doubt in the prosecution story. As per the evidence, the people of locality had gathered at the spot after which the accused ran away. But their names were neither mentioned in the FIR nor the prosecution produced them during trial. Though there are eye-witnesses of the occurrence who could be able to adduce evidence but the prosecution withheld their presence before the trial Court, which creates a doubt in prosecution story. Although the injury report is on record but PW2 Pradeep clearly stated that he did not receive any gunshot injury. As far as the injury received by PW1 Raghav is concerned, in this regard, he clearly stated that he does not know who caused the injury. The only eye-witness PW3 Amit produced by the prosecution, did not state whether the accused caused gunshot injury to PW1 Raghav.
34. In the present case all the star witnesses have denied the prosecution story.
35. It is well settled principle that a suspicion, however, grave it may be, cannot take place of proof i.e. 10 there is a long distance between "may be", and "must be"
which must be traversed by the prosecution to prove its case beyond reasonable doubt. As such prosecution failed to establish foundational fact of the case.
36. In the case of Rajiv Singh Vs State of Bihar and another (2015) 16 SCC 369 the Hon'ble Apex court has held that, if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted.
37. The Hon'ble Apex Court in the case of Vs Sejappa Vs State (2016) 12 SCC 150, has held that while dealing with an appeal against acquittal, the appellate court must bear in mind the following things:-
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;
(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."11
38. The trial Court came to the conclusion that there is no clinching evidence on record to convict the accused. After re-appreciation and re-evaluation of the evidence, we have also come to this conclusion that there no sufficient evidence is available on record to convict the accused persons. We also find that the lower Court passed the judgment as per correct appreciation of evidence. The appeal lacks merits and is liable to be dismissed. Accordingly, the appeal preferred by the Government is dismissed and the judgment and order dated 12.03.2010 passed by the Additional Sessions Judge, Haridwar in S.T. No.133 of 2006, State Vs. Vineet @ Chinu and others, S.T. No.226 of 2006, State Vs. Sunil Rathi, S.T. No.134 of 2006, State Vs. Sanjay Chandana and S.T. No.52 of 2007, State Vs. Vineet @ Chinu, is hereby affirmed.
39. Lower Court record be sent back.
(R.C. Khulbe, J.) (Sudhanshu Dhulia, J.) Balwant