Dr. Virendra Singh vs Central Bureau Of Investigation on 9 January, 2018

[Cites 7, Cited by 0]

Uttarakhand High Court

Dr. Virendra Singh vs Central Bureau Of Investigation on 9 January, 2018

Bench: V.K. Bist, U.C. Dhyani

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

            Criminal Appeal No. 5 of 2015

Dr. Virendra Singh.                        .........Appellant

                          Versus

Central Bureau of Investigation.          .......Respondent

Mr. S.P.S. Panwar, Senior Advocate; Mr. Prem Prakash Yadav,
Advocate; Mr. Rajendra Singh, Advocate and Mr. Ajay Veer
Pundir, Advocate for the appellant.
Mr. Sandeep Tandon, Advocate for the respondent.

                             &

            Criminal Appeal No. 6 of 2015

Master Rakam Singh.                        ..........Appellant

                          Versus

Central Bureau of Investigation.         ..........Respondent

Mr. Yogesh Lakhani, Senior Advocate, Mr. S.S. Lingwal,
Advocate, Mr. Virendra Singh Rawat, Advocate and Mr. Rajendra
Singh Advocate for the appellant.
Mr. Sandeep Tandon, Advocate for the respondent.


                     Dated: 09.01.2018


           Coram: Hon'ble V.K. Bist, J.

Hon'ble U.C. Dhyani, J.

Delivered by:

V.K. Bist, J.

These two appeals being connected, we are disposing of the same by this common judgment.

2. Criminal Appeal No. 5 of 2015 is filed by accused Virendra Singh (hereinafter referred to as the "second accused"); whereas, Criminal Appeal No. 6 of 2015 is filed by accused Rakam Singh (hereinafter 2 referred to as the "first accused") against the judgment and order dated 02.01.2015 passed by Third Additional District and Sessions Judge/ Special Judge (C.B.I.), Dehradun in Session Trial No. 164 of 1991, C.B.I. Vs. Master Rakam Singh & another under Section 147, 148, 149 read with Section 302 I.P.C.

3. The first accused has been convicted under Section 149, read with Section 302, of the Indian Penal Code and sentenced to imprisonment for life with fine of ` 5,000/- and, in default of fine, he was sentenced to undergo six months' additional simple imprisonment. The first accused was also convicted under Section 148 of the Indian Penal Code and sentenced to undergo two years' imprisonment. The period already undergone by the accused was ordered to be adjusted.

4. The second accused has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life with fine of ` 5,000/- and, in default of fine, he was sentenced to undergo six months' additional simple imprisonment. The second accused was also convicted under Section 148 of the Indian Penal Code and sentenced to undergo two years' imprisonment. The period already undergone by the accused was ordered to be adjusted.

5. The prosecution version, in brief, is as follows:

On 24.11.1989, general elections were held. The complainant in this case, namely, Sri Sahab Singh Saini, who was examined as PW1, is alleged to have got information at his office that, in Village Belri, booth capturing was being done. He reached Village Belri in 3 a blue-coloured gypsy, which was driven by Afzal S/o Aslam Khan, (since deceased). Along with him, Inamulhaq, Mohd. Azam, Sarfaraz and other workers were there. It is the further case of the prosecution that they persuaded the people on reaching the Village Belri. While returning from Belri, at about 06:30 hours at the pucca road, a vehicle bearing flag of a national party stopped them. The deceased stepped out of the vehicle and enquired as to what was the issue. Then, from that vehicle, the first accused and the second accused alighted. Three others also got out of that vehicle. The first accused, who was having a gun in his hand, and the three others, asked the second accused that "Saala has ruined all the work and let him be shot". On saying so, with the firearm held in his hand, the second accused opened fire at the deceased and he fell down. PW1 and others raised voice. At that time, Sri Akbar Khan (examined as PW 25), too, reached on the spot by his vehicle. It is alleged that the incident was witnessed in the light of the vehicles. The accused, along with three others, ran away in the vehicle. The injured was taken by PW1 and his companions to the Government Hospital, where the doctors declared him dead. PW1 gave the First Information statement and the report was lodged at 08:00 p.m. on 24.11.1989 at Police Station Kotwali Roorkee, under Sections 147, 148 and 302 of the Indian Penal Code.

6. Initially, the local police investigated the crime. Subsequently, the investigation was handed over to the CBCID on 06.12.1989. Still later, the investigation was handed over to the Central Bureau of Investigation (CBI) on 16.12.1989. CBI filed the 4 charge-sheet against these two accused under Sections 147, 148 & 149, read with Section 302, of the Indian Penal Code. Charges under Sections 147, 148 & 149, read with Section 302 I.P.C., were framed against the first accused; whereas charges under Sections 147, 148 & 302 I.P.C. were framed against the second accused.

7. PW1 to PW28 were examined on behalf of prosecution. The accused persons led defence evidence by examining DW1 to DW4. Besides that, documentary evidence was also filed by the prosecution. The trial court, after closure of the prosecution evidence, put questions under Section 313 of the Code of Criminal Procedure and elicited the response of the accused. The trial court, on the basis of the evidence, came to the conclusion that the prosecution has succeeded in proving the charges and convicted the accused, as we have already indicated earlier.

8. Learned counsel for the appellants submitted that the trial court has clearly erred in finding the accused guilty. It is submitted that the alleged direct witnesses, namely, Sahab Singh Saini P.W.1 & Salimullah P.W.2 are thoroughly unreliable and this is sought to be fortified with reference to material contradictions, which have clearly appeared on the record. They submitted that, in the first place, this is a case, where the prosecution case is afflicted with the vice of it being motivated and not a truthful version of what had transpired. PW1 was the candidate of the Janta Dal for the assembly seat from Roorkee against the father of the second accused, who 5 was a Congress candidate, namely, Sri Ram Singh Saini. It is submitted by the counsel for the appellants that P.W.1 was, in fact, motivated to tell a lie in securing the conviction of the accused only on account of political enmity. It is pointed out that PW1 has never succeeded in the elections. The investigation was extraneously influenced by various ministers, who were on friendly terms with the father of the deceased, namely, Sri Aslam Khan, who, in turn, was a politician and who, in fact, also became a minister in the State of U.P. The Janta Party was in power in the Centre also and, therefore, out of sheer political vendetta, false testimony was adduced to secure the conviction of the innocent. It is pointed out that, though the prosecution version is that a number of persons had accompanied PW1 on the fateful day and were witnesses to the alleged firing by the second accused, none of those persons has been examined as witness by the prosecution. It is pointed out that Salimullah was examined as PW2 and, as an alleged eye-witness, but he was strangely not even named in the FIR lodged at the instance of PW1. It is contended that PW2, who is alleged to have gathered a shawl, which was worn by the deceased and which contained four holes as a result of the firing, did not lodge any information with the police, as would have been natural. Instead, he surfaces with the shawl after 32 days and the shawl was produced only on the occasion of second questioning by the third investigating agency, namely, the CBI. It is, further, submitted that, according to the version in the FIR, the shot was alleged to have fired at the Haridwar-Roorkee road, which is a busy thoroughfare, and, to suit the prosecution version, the site of the incident was conveniently changed to several 6 feet away from said busy thoroughfare to the east on the road, which goes to Belri. Learned counsel for the appellants submitted that the fact that no efforts were made to trace out the ambassador car, in which the accused had allegedly come and gone, was also fatal to the prosecution case. The person, who drove the vehicle, was not even traced out. Equally without justification is the conduct of the Investigating Officer in not tracing out three persons, who had allegedly travelled in the ambassador car and who had accompanied two accused. It is further pointed out that, though PW 25, who is the Uncle of the deceased, had allegedly arrived at the scene immediately after the fateful incident and saw the accused along with others get away and he had admittedly arrived in his own vehicle, the strange conduct of PW 25 in not even touching the body of his injured nephew and in not taking the injured in his vehicle to the hospital raises serious doubts about the prosecution case. Equally unexplained is the conduct of PW 25 in not coming forward to give information to the police, which would have been the natural thing to do for a person, who is related as an Uncle. Seriously impugning, Ex. Ka.22, a communication to the doctor at the hospital under which the body was sent for post mortem by the police, it is pointed out that it is clear that neither PW1 nor any of the persons mentioned in the prosecution case had actually brought the deceased to the hospital. This is sought to be made out from conspicuous absence of the name of PW1 or of the others, who were witnesses to the fatal incident. It is also pointed out that clearly probablising this circumstance is the non- mentioning of the actual name of the deceased in the body of the document, as what is mentioned in the 7 body of the document is that the deceased is the son of Aslam Khan. If, actually, PW1 and those, who had accompanied the deceased and who had allegedly witnessed the incident, had brought him to the hospital, there is no reason why the actual name of the deceased, namely, Afzal Khan was not written. It is further pointed out that, in the inquest report in the columns relating to the FIR, the details are conspicuous by their absence. If the details of the FIR do not find place in the inquest report, it is an unmistakable sign signifying the fact that the FIR, which is alleged to have been lodged at 08:00 p.m. on 24.11.1989, was not actually lodged at that time and, on the contrary, it is a clear case of an ante-timed FIR.

9. Besides the circumstances mentioned above pressed before us to blemish the prosecution case as motivated and concocted, another circumstance, which is pressed before us, is the fact that the FIR, which was allegedly lodged on 24.11.1989 at 08:00 p.m., reached the Magistrate only four days thereafter, namely, on 28.11.1989. It is allegedly afflicted with fatal consequences, as no believable explanation is forthcoming as to how the delay occurred. In the absence of an acceptable explanation for the long delay, it is submitted that the Court must accept the case of the accused appellants that the FIR was ante- timed and the entire case is a fabricated version, which should not inspire the confidence of the Court.

10. It is submitted that the inquest is alleged to have taken place in the mortuary of the Government Hospital by PW-1; whereas, the body of the deceased was, in fact, kept at the emergency room of the 8 hospital, where the inquest took place. It is submitted that there are clearly irreconcilable contradictions as regards the point of time when the body was taken for post mortem.

11. It is further submitted that there is no evidence to connect the second accused with the 12 bore double-barrel gun, which was allegedly recovered from his father's house at about 03:00 a.m. on 25.11.1989. No recovery has been affected from the accused as such of the gun. Necessary precautions were not undertaken by the Investigating Officer in regard to the safe upkeep of the gun, which was seized. The gun was sent to the State Forensic Science Laboratory, Agra.

12. It is submitted that, actually, the death of the deceased was caused by some unknown persons. There emerged evidence about the involvement of certain others. Even though guns were seized from them and they were sent for ballistic report, the report relating to the guns seized from them has not been made available and kept away from the court's scrutiny. It is pointed out that PW 28, the Investigating Officer of the CBI, who had seized the guns from those persons and sent them for investigation, despite finding their involvement, has not given any reasoning for ruling out involvement of those persons and, instead, the innocent appellants have been proceeded against. After the letter dated 02.12.1989 was sent, there is a further letter dated 23.12.1989 addressed to the State Forensic Science Laboratory, Agra, seeking further information. Yet, 9 another letter dated 09.01.1990 was sent to F.S.L., Agra.

13. Thereafter, the Director gave his report. It is contended that the gun belonging to the father of the second accused, which is alleged to have been used by the second accused, is not shown to have been used or likely to have been used for firing the pellets, which were allegedly recovered from the body of the deceased during the post mortem. In this regard, it is pointed out that the pellets, which were recovered from the body of the deceased, are strangely not found to contain blood-stains, which is again very unlikely, and it shows that the evidence has been manufactured by the prosecution. It is significantly submitted that the report of the Laboratory at Agra clearly opines that the pellets, which were recovered, could have been fired from the 12 bore double-barrel gun, which was seized from one Sri Dhingra, whose hand was suspected in the murder of the deceased; whereas, such a finding is not there in regard to the gun belonging to the father of the second accused. The finding is that the pellets, which were recovered, could have been fired using the cartridge of size No. 2 or 3. A cartridge of size no. 2 would contain about 120 and odd pellets; whereas, a cartridge of size no. 3 would contain 140 pellets. According to the prosecution version, as spoken through the evidence of PW5, who is a ballistic expert, namely, Sri Ram Asre Pandey, since there was scorching and tattooing found on the body of the deceased, it shows that the firing would have taken place at a range of 3 feet; that is to say, the persons, who fired, would have fired from 3 feet away. This version is completely incompatible with the recovery of 10 only 13 pellets from the body of the deceased, particularly when the waddings were also recovered from the body. It means that, if the version is correct and as only 13 pellets have been found from the body of the deceased, the balance of the pellets, which would have been fired from the cartridge of either size no. 2 or size no. 3, should have been scattered all over the place at least. Prosecution has not recovered any such pellets from the site. The empty cartridge is also not received. This also falsifies the prosecution case, it is submitted.

14. Likewise, the entry wound is alleged to have been located at 6 cms. below the left nipple. There is no exit wound. The bullet is alleged to have caused fatal injury to the lungs, heart and pellets were also found in the liver. This means, the prosecution case must be treated to be that the bullet, which made its entry on the left side of the body, has travelled downwards towards the right, as the pellets have been recovered from the peritoneal cavity as also from the liver. This, it is submitted, is simply not possible when the firing is alleged to have taken place when the assailants and the deceased were in standing position. The absence of the exit wound is emphasized.

15. Alleged site, where the deceased fell and from where the blood-stained earth was recovered, is located about 2 ½ paces from the back of the Maruti Suzuki Van, which was driven by the deceased. That means, as one pace is roughly 2 ½ feet, the body of the deceased was found about 7 ½ feet away. As the prosecution version is that the deceased fell at the spot when he sustained the gunshot, the deceased must 11 have been standing at that very spot, namely, he was at a point, which was 7 ½ feet behind the Maruti Suzuki Van. The ambassador car, which came from the side of Haridwar-Roorkee road, is alleged to have come and virtually blocked the Maruti Suzuki Van. The distance between the front of the Maruti Suzuki Van and the front of the ambassador car is shown as 10 feet and when the shot was fired, as the prosecution version is that the accused and three others had come out of the car and on asking the name and his name being revealed, an exhortation was made that the deceased had spoiled all the work and, without anything more, shot was fired, this falsifies the case that the shot was fired from a distance of 3 feet as spoken to by PW5. In other words, going by the site plan prepared, it is submitted that the version as given by the prosecution is unbelievable.

16. The prosecution witness had allegedly seen the incident on the basis of the light shed by the Maruti Suzuki Van and the ambassador car. There is no evidence of any street light. The incident is alleged to have taken place on 24.11.1989 at about 06:30 p.m. The incident is alleged to have been seen on the basis of the headlight of the ambassador car and the parking light of the Maruti Suzuki Van, which was put on. Therefore, it is submitted that it is very unlikely that PW1 and PW2 could have seen the incident as they have narrated in their deposition. It is pointed out in this regard that none of the passersby, who would have been the natural witnesses, have been examined. This is suspicious and renders the prosecution version unreliable.

17. The entire case is built on the idea that the accused became antagonistic to the deceased on account of political reasons, namely, that there was booth capturing done and this was sought to be foiled by the deceased among others. In this regard, it is submitted that there is no motive established for the accused to have committed the crime. It is submitted that there is no reliable evidence of booth capturing at Belri. The assembly day of the election was 24.11.1989. Already the election had been over at Muzzafarnagar, in which the father of the deceased was a candidate. According to the prosecution version, PW2 (Salimullah) is alleged to have come over to Roorkee on 23.11.1989. PW25 also would say that, since apparently they belonged to the same party and they were on good terms, they had come over to help PW1, who was the candidate. PW1, PW25 and the deceased are alleged to have come on 23.11.1989; but, the learned counsel would submit that the evidence does not support this version. It is also submitted that there is no evidence to show, at any rate, the presence of the second accused at Belri or at Rehmatpur carrying out booth capturing. It is submitted that the evidence of the Returning Officer at Belri would show that there was no booth capturing at Belri. This cuts at the root of the prosecution's case and, if there is no booth capturing, the case of the prosecution would fall flat. In fact, it is submitted that the motive for committing the murder is not at all shown to exist. According to the prosecution version, on 23rd and 24th of November, 1989, the deceased and the accused are alleged to have come face to face in the context of the election and a confrontationist background generated animosity towards the deceased. If that be so, the 13 question is posed that, if they were face to face and knew each other, what was the occasion for the alleged question, which was asked of the deceased when he got out of the car on 24.11.1989 by the accused, as to who he was. It is allegedly on the deceased answering that he was Afzal Khan that the fatal exhortation was made leading to the fatal firing. It is submitted that this aspect is vital and has been ignored by the trial court.

18. The Investigating Officer, namely, PW28 is alleged to have done no worthwhile investigation. He has not interrogated anyone. He has not made efforts to trace out either the ambassador car in which the accused allegedly travelled, the driver or even the Van in which the deceased was alleged to have been transported to the hospital. In this regard, it is submitted that even the Maruti Suzuki Van was not taken into possession under a seizure memo. It is a vital piece of evidence and there is no evidence to show that it was taken into custody. It should have been produced and marked as case property. It is submitted that investigation and evaluation of the Maruti Suzuki Van, in which the deceased allegedly travelled, would have revealed vital inputs including as to whether the vehicle actually was in working condition, whether the lights were working etc., which were vital for proving the prosecution case. This has been given a go by. In this regard, it is important to notice the argument of the learned counsel for the appellants that, actually, PW2, whose name is shown as Salimullah, was none other than one Salim, who was the driver of the vehicle in which PW25 (Uncle of the deceased) allegedly arrived at the scene. This fact is sought to be established by inviting us to compare the signatures of Sri Salim in 14 the document, which he signed when he got the vehicle of PW25 released on executing a bond, with the signature of Salimullah. It is submitted that Salimullah is none other than Salim, a servant of PW25. The evidence of PW25 is read over to us in an effort to establish that his case that he accompanied the deceased on 23.11.1989 and on 24.11.1989 and was present at the fateful moment was belied by his deposition showing his ignorance of various aspects relating to the electioneering. This is besides of course asking us to draw the irresistible inference from his unexplainably strange conduct in not complaining to the police at the earliest opportunity and appearing at the scene when the CBI was vested with the investigation, i.e. a good 32 days after the incident. It is vehemently argued that his conduct in allegedly having washed the shawl twice and not surrendering the shawl to the Investigating Officers earlier renders his entire deposition as false.

19. Another argument is that the entire investigation and the prosecution was as a result of the political ill-will. The connection of PW1 and the father of the deceased with former central ministers, which is not in dispute, is also pressed before us to point out that the prosecution was not a fair one and, on the other hand, it was engineered towards securing conviction of absolutely innocent accused.

20. It is submitted that Nathu is alleged to be a person, who was present on the fateful day and who has tied Tehmud over the side of the injury of the deceased. He was questioned by the officer during the time of the inquest. He would have been the most 15 reliable witness. But, strangely, he was not examined as a witness for the prosecution. This shows that prosecution did not want to bring real fact before the Court.

21. It is further submitted that the court was also approached and reminders were sent to the Forensic Science Laboratory at Lucknow. The document was actually received. What is more, the document was suppressed in the sense it was not got marked. It is the duty of the prosecution to make available the entire relevant evidence and not to hide any such evidence from the scrutiny of the court. In this case, the trial court did not have the advantage of perusing the said document, which has resulted in a grave miscarriage of justice, as it is important to know the range of fire, the angle at which the shot was fired, particularly, in view of the strange behaviour of the bullet in going down the body and pellets being recovered from various parts of the body. It is submitted that it is quite possible on the evidence available that the fatal shot may have been fired by some unknown person and using a country-made gun.

22. Learned counsel for the appellant submitted that the possibility of the FIR being ante-timed and the complainant naming both the accused for political rivalry and extraneous reasons cannot be ruled out. It is the contention of the appellant that the Ambassador car, which was allegedly used by the accused then, its owner, driver and registration number had not been found. The owner of the Van, in which allegedly the deceased was transported to the hospital, the details about its driver, registration number, have not been 16 found and brought on record. The Gypsy, in which the deceased travelled, has not been seized in accordance with law, even though it had been given to Salim. The witnesses named in the FIR, namely, Mohd. Azam, Sarfaraz and Inamulhaq have not been examined as witnesses even though they are allegedly witnesses to the incident. Neither the double barrel gun, allegedly held by the first accused, has been recovered from him, nor discovered at his instance. The double-barrel gun, which was seized from one Ramesh Kumar Dhingra has no connection with the first accused. The identity or the use of the gun, which has been seized, has not been established by the oral evidence of PW1, PW2 and PW25. Equally, the medical evidence and the ballistic expert's evidence do not establish any connection. The place of occurrence, it is submitted, is uncertain and there is great variance in the evidence in this regard. As per the FIR, it would appear to have occurred at the main road; going by the evidence of PW1, he would say it is 2 to 4 paces from the main road. In the chief of PW2, however, he has stated that it is 10 to 15 paces from the main road. According to PW1, the distance from the main road to the tri-junction, which lies to the east of the main road (and from which one road goes to Belri and another goes to Dhadheri) is 100 paces; whereas, the distance from the tri-junction to Belri is stated by PW1 as 250 paces. In the site-plan, which has been prepared by the CBI, the shot was sustained at a distance of 45 feet from the main road. As per the site-plan prepared by the State police and also as per the cross-examination of Investigating Officer of CBI, the incident is located at 45 paces from the tri- junction. It is the appellant's case that PW25, who is the Uncle of the deceased and is alleged to have come 17 on the scene, has stated that the Jeep, in which he came, came inside 8 to 10 paces and the incident took place 40 to 50 paces from there. Reliance is placed on the evidence of PW2 to contend that the incident took place at a site, which was 100 paces plus 60 to 70 paces from Belri polling booth. In the cross of PW2, the place, where the police vehicle was shown, was at 100 paces from the polling booth. It is, therefore, contended that even the exact place of occurrence has not been located with any amount of reliability.

23. It is the further case of the appellant that PW2, who has produced the shawl allegedly worn by the deceased, comes forth with the statement, for the first time, only on 22.12.1989, which is after 28 days; but he does not speak about the shawl or the tehmud. PW2 is, apparently, a got-up witness introduced with the false case of shawl. It is contended that no blood was found on the shawl. It is pointed out that the case of the shawl being stuck in the window of the gypsy and having four holes on it was introduced for the first time by PW2 in court. Appellant points out that PW25 is found as a witness in the seizure memos not only of shawl, but also of tehmud on 26.12.1989, besides the seizure memo of the account of votes on 02.01.1990. These objects are, therefore, stated to be products of fabrication at the instance of PW25. It is pointed out that PW25, in court for the first time, spoke about the shawl lying there, which was in contradiction of what was spoken by PW2. PW2 has said that the shawl was stuck in the window of the gypsy. It is contended that four holes in the circumference of 12 inches (the distance between the first and the fourth hole being 24 cms.) on the shawl are not possible.

24. It is submitted that there is no independent evidence led to prove any enmity between the accused and Afzal. There is no evidence as to who the three unknown persons were. They are not found, nor are they shown as absconding. There is no evidence relating to physical appearance, colour, height, description of cloth in regard to them. PW1 and PW2 cannot be described as sterling witnesses. Their evidence is not corroborated in any manner from the other evidence or circumstances available on record. The names of the persons, who brought the body of the deceased to the hospital, are not recorded in the memo. Even the promptness in lodging of a FIR cannot be a guarantee of it being true, as FIR is not a substantive piece of evidence. Therefore, when the allegations in the FIR and the alleged role attributed to the accused are in complete contradiction, variance with the other evidence, the unreliable and uncorroborated testimony of PW1 cannot be the basis of conviction. Counsel appearing for the appellants vehemently argued that, in fact, the crime has committed by other persons. Three persons were arrested in this regard; but, prosecution remained silent about those persons. They submitted that the act of the prosecution in not bringing on record the outcome of the investigation qua the three persons including Hukum Singh and Vijendra Singh, who were apprehended, weapons recovered and sent to the FSL for investigation and the lie detector test done create serious and strong doubts about the real culprits being allowed to go scot-free. The non-examination of Nathu, a very important alleged eye-witness to the incident, as well as tying of Tehmud, besides being a witness to the inquest report, 19 is crucial in determining the falsity of the prosecution case. The Circle Officer was examined as PW27 though he was discharged earlier. There is no explanation regarding the signature of the Circle Officer with 27.12.1989 on the FIR. The presence of four holes in the circumference of 12 inches (the distance between the first and the fourth hole being 24 cms.) on the shawl is not possible going by the prosecution case. The fact that no bloodstained clothes of any witnesses, who are said to have lifted the body of Afzal, which was profusely bleeding, or the cloth of Nathu, who is said to have tied the Tehmud and whose clothes were said to have been stained with blood not being seized or recovered for scientific investigation falsify the prosecution case. This is, of course, besides no blood being found either on the shawl or tehmud.

25. On the basis of their arguments, the learned counsel for the appellants submitted that it is a case where prosecution failed to prove its case beyond reasonable doubt and appellants deserve to be acquitted.

26. Per contra, learned counsel for C.B.I. submitted that the FIR was immediately lodged about the murder of Afzal Khan. Hence, the contention of the defence regarding delay in lodging F.I.R. is wrong. During the trial, eye-witnesses, namely, PW-1 Sahib Singh Saini, PW-2 Salimullah, PW-25 Mohd. Akbar Khan and PW-3 Dr. Rajan Dang, who gave the information to the concerned police station, have stated the same thing which they stated under Section 161 Cr.P.C. and there is no discrepancy even as per the defence regarding this fact. He submitted that from 20 the bare perusal of the FIR/complaint it is clear that same is in hand writing of the PW - 1 Sahab Singh Saini wherein he has written his name in his own handwriting whereby it stands proved that the FIR was lodged by PW-I Sahab Singh Saini. The same has not been anywhere challenged by the defence during the trial. From reading of the statements of the prosecution witnesses namely, PW -1, Sahab Singh Saini and PW - 6 Vikram Singh, it is clear that the FIR is prompt and without any delay.

27. He submitted that the non-examination of witnesses, namely, Inamullah, Mohd. Aazam, Sarfarz and Nathu will not affect the merit of the prosecution case, as the case is proved by eye witnesses beyond reasonable doubts. The prosecution examined the witnesses as per the list of witnesses. To avoid the duplicacy of the witnesses and to save the time of the Court, only the relevant witnesses were examined. He submitted that defence could have examined the other witnesses as defence witnesses. He submitted that Salimullah was examined by the prosecution during the investigation. The date and time of examination depends on a number of factors and convenience of the Investigating Officer, therefore, his testimony should be relied. He submitted that there is no dispute about the shawl used by the victim during the time of the incident.

28. Learned counsel for the C.B.I. further submitted that there is no reason that Sallimullah has any intention to frame anybody. During the cross examination of Sallimullah defence was not able to establish any relevant fact which could be helpful to them. The expert opinion on the shawl has established 21 that there was gun powder presence in the shawl even after washing of the same. It is only conjecture of the defence that Sallimullah should have rushed to the police station after the incident and ask the police to record his statement. The question raised about the shawl has already been looked into by the Ld. Trial court and Sallimullah was already cross examined by the defence on different issues including this. He submitted that it is an admitted fact that the name of Natthu is mentioned on the inquest report at serial no. 5 of "naam panchaan". Further, is also stands proved from the statement of PW-1 that tehmad was tied by Natthu when Afzal got bullet injury to stop excessive blood oozing out from his wound. It clearly shows that Natthu was present at the place of incident and at the time of preparation of the inquest report.

29. It is further contended that as per the statements of PW - 1 , PW - 2 and PW - 25, it is clear that, all the persons who came in the Ambassador car were carrying weapons and there are clear cut statements of the PW - 1, PW - 2 and PW - 25, who are also the eye witnesses that as per the exhortation of the convict Rakam Singh, the another convict Virendra Singh fired from his gun at the victim Afzal Khan because of which he ultimately succumbed to the fatal injury. This shows that there was prior meeting of minds and all the accused persons had common intention to commit the crime. That there is a clear cut evidence on record that there was a political rivalry between the deceased and the convicted accused persons. He submitted that the height of an Ambassador car is more than the 12 bore double barrel gun and there is no division of front seat in an 22 Ambassador car. Thus, it is quite possible that three persons can easily fit in the front seat and out of which two persons can possibly hold double barrel gun.

30. Regarding direction of wound, learned counsel for C.B.I. submitted that points raised by the appellants were not found favour by the trial court and appellants cannot be given any benefit in appeals.

31. He submitted that the prosecution succeeded in proving the case beyond reasonable doubt and the appeals deserve to be dismissed.

32. We have considered the submission of learned counsel for the parties.

33. The first question, we have to answer is whether the FIR is ante-timed and whether there is delay in sending the FIR to the court.

34. The FIR is shown to have been lodged at 08:00 p.m. on 24.11.1989. If the FIR is lodged at 08:00 p.m., then it cannot be said to be delayed, as the body was brought to the hospital at about 07:20 p.m. and it is, thereafter, that PW1 is alleged to have lodged the FIR. But the argument is that the FIR was actually not lodged at 08:00 p.m. and, instead, it is lodged much later after PW1 and others had time to fabricate the false case against the accused. In this regard, the contention is that a perusal of the inquest report would reveal that it has been prepared without the FIR being before the officer. In this connection, it is pointed out that, actually, copy of the FIR was available with Sri B.M. Singh (PW8), the officer who prepared the inquest report, but there are discrepancies in the contents of the inquest report in the context of the contents of the 23 FIR. In regard to the FIR itself, it is stated that, in one copy of the FIR, which is marked, the signature of the first informant is not to be found. Furthermore, it is pointed out that, under the Column 'the day on which it was sent to the Police Station', it is written as 25.11.1989; whereas, the report was actually prepared on 24.11.1989, as can be seen from the date at the bottom of the page. If it was signed and prepared on 24.11.1989, how the date could be shown as 25.11.1989, which is a day after the day on which it is signed? Likewise, it is pointed out that, while two FIRs have been marked, in one copy of the FIR, under the column 'name and place of residence of the accused', the full address is given; whereas, in the other copy, which has been marked, they are conspicuous by their absence. Likewise, it is pointed out that, when it comes to the inquest report, at the top of the page, it is written as Case No. 323/89 under Sections 147/148/149/302 of IPC versus Dr. Virendra Singh & others; whereas, in the FIR, under the heading 'name of accused persons and address', the first name is shown as Master Rakam Singh and, thereafter, Dr. Virendra Singh's name comes. It is also pointed out that, among the enclosures, the chik of case, one page namely the copy of the report is included, which means that it was available. This is by way of rebutting prosecution case that the chek-report was with the original Investigating Officer of the State Police and was not available with PW8, who conducted the inquest. Likewise, pointing to the police form No. 379 (i.e. PW8 Ex. 4) Diagram of the dead body, therein also it is stated that, at the top of the form, the names of the accused as such are not written and only the case number and the sections are written.

Per contra, the case of counsel for the CBI, is that this is not a case that the FIR is ante-timed. It is pointed out that the second accused was arrested immediately after lodging of the FIR, i.e. in the mid night of 24/25.11.1989; the gun was seized from the father of the second accused; arrest of the second accused was notified to the Magistrate on the very next day namely on 25.11.1989; that apart, of course, the inquest took place immediately on 24.11.1989 itself within a few hours; and, on the next day morning at 08:00 a.m., the post mortem commenced.

We see considerable force in the contention of the prosecuting agency. The question as to whether the FIR is ante-timed is, undoubtedly, a vital question, as, if it was indeed not lodged at the time it is shown to have been lodged, it may indicate clearly that, after using the time available to create concocted and embellish a false story implicating innocent persons, a case was set up against the persons, who are not guilty, after due deliberations. Entry No. 19 was entered in the General Diary of Gangnahar Police Station. This was made at the Police Station, within whose jurisdiction the offence was committed. The Gangnahar Police Station is the Police Station within whose jurisdiction the Government Hospital lies and, that is why, the intimation was sent by the hospital to the said Police Station. But, thereafter, on the FIR statement being lodged at the Kotwali. Entry No. 33 was made in the General Diary and that has been proved by witness. Thereafter, on receipt of the intimation from Gangnahar Police Station, another entry is made in the General Diary of the Kotwali Police Station as Entry No. 47. It would appear that PW 9, the Station House Officer was not in the Police Station.

Therefore, the chik report was prepared and it was sent to him and his evidence would show that he went to the hospital, where the inquest was being held. It is, no doubt, true that, in the inquest, the time of completion of the inquest is shown as 11:55 p.m. on 24.11.1989; whereas, according to PW9, the inquest was over by about 10:50 p.m. In fact, the case of the prosecution is that the chik report was not with the officer, who prepared the inquest report, as it was forwarded to PW9 and the case of the prosecution is that, by the time PW9 reached the hospital, the inquest was over and that explains some of the discrepancies and omissions in the inquest report in relation to the FIR. But, no doubt, there is a case for the appellants that another copy of the chik report was available with Sri B.M. Singh, the officer who prepared the inquest report. The fact remains that there were entries in the General Diary, which are made by the police officers, apparently, simultaneously with the registration of the case. It lends considerable assurance to the prosecution case. It is also clear that the inquest did take place on 24.11.1989 itself, at any rate, before 12 O' clock in the night. This is proved by the evidence of Bhim Singh as also the inquest report. Still a little later, the arrest of the second accused took place. Most importantly, the memo regarding the arrest of the second accused was sent to the Magistrate Court on the very next day, namely, on 25.11.1989 and the time of receipt is also acknowledged showing receipt on 25.11.1989. Most of the things have happened within 12 hours of the date and time of the FIR, which was 24.11.1989 at 08:00 p.m. Only the memo regarding the arrest overshot the 12 hours' period by a few hours. In such circumstances, we are of the view that 26 it may not be possible to describe this as a case, where the FIR was ante-timed.

35. This is a case, where there appears direct evidence available in the form of PW1 and PW2. PW25, the uncle of the deceased, has also deposed witnessing the accused running away from the occurrence and getting seated in the car and speeding away.

36. We are fully conscious of the fact that ordinarily when witnesses are available, who depose that they have actually witnessed a criminal act and there are contradictions pointed out by the accused on the basis of the medical evidence or the expert evidence, unless the medical evidence or the expert evidence is incompatible with the ocular version, subject to the ocular version being found reliable, the version by way of direct evidence must prevail. But, the Court is required to examine the entire evidence in careful manner.

37. As far as prosecution is concerned, the counsel relied on the statement of PW1, PW2 and PW

25.

38. In this case, the contradictions, which are sought to be introduced, are as follows:

The shot was fired from a double barrel 12 bore gun. There is tattooing and blackening around the entrance wound. The doctor, who was examined as PW7, has clearly deposed that the shot was fired from a distance of about 3 feet. This means, it was a near range shot. Though the ballistic report, which was received from the Forensic Science Laboratory at Agra, pursuant to the demand made by the prosecution, has 27 not been led into evidence as such, it is stated that, from the copy which was received, it indicates that they have reckoned the distance as 54 cms.

39. Therefore, the cartridge, which was used, would have been either No. 2 or No. 3. If the cartridge was No. 2, there would be 120 pellets. If the cartridge was No. 3, it would have contained as many as 140 pellets. However, it is not in dispute that only 13 pellets have been recovered from the body of the deceased. The counsel for the appellants pose the question, as to what happened to all the other pellets. The pellets, having regard to the range, should have been recovered from the body, as it was fired from a very close range. If the pellets did not enter the body, they should have been recovered from the site of occurrence. Not a single pellet has been produced. The empty cartridge has not been recovered. In this connection, it is further pointed out that the deposition of PW1 and PW2, who are alleged to have witnessed the incident, is that the ambassador car, in which the accused came, blocked the vehicle in which the deceased was traveling. The evidence of PW1 and PW2 to the effect that the accused, along with three others, came out and, thereupon, the deceased got out of his car. An introduction was sought from Afzal as to who he was. He responded by saying that he was Afzal S/o Aslam Khan. Thereupon, an exhortation was made, which resulted in the second accused firing the fatal shot. It is pointed out that the blood was found at a point about 6 to 7 feet behind the gypsy. Since Afzal is alleged to have fallen at the place, where he sustained the gunshot injury, the version of the prosecution cannot be accepted for the reason that there is no 28 evidence of the accused moving from the place, where they got out of the ambassador car, and it is proved that the gunshot was fired at a very close range (be it 3 feet or 54 cms.). The prosecution has failed to prove its version and, therefore, this advances the case of the appellants that it was a case of a blind murder and the appellants, who are innocent, are being roped in without any basis. Thirdly, it is pointed out that the trajectory of the projectile within the body completely rules out the prosecution case that the accused fired the shot when both the accused and the deceased were standing. It is pointed out that the trajectory of the projectile within the body of the deceased showed that he sustained the injury at a point, which is 6 cms. below his left nipple and, from there, the pellets have been found in lungs, the liver. Therefore, it showed that it travelled from left to right and towards the back. It is submitted that this line of the travel of the projectile would be possible only if the deceased was sighted at a lower point in comparison to the assailants. This would have been possible only if the deceased was probably sitting in the vehicle and somebody, who was standing outside, delivered the fatal shot at Afzal. This is not the case of the prosecution. Therefore, the incident could not have happened as is alleged by the prosecution. Fourthly, it is submitted that there is no evidence connecting the gun with the accused. As far as the first accused is concerned, namely, Master Rakam Singh, no recovery has been effected from him. The gun was licensed in the name of Sri Dhingra and no connection has been established between Sri Dhingra and the first accused. No case is made out of the gun being handed over by Sri Dhingra to the first accused. There is no evidence, 29 which would, therefore, establish that the gun, which was recovered from Sri Dhingra, was the gun, which the prosecution alleged to be in the hands of the first accused. There is complete dearth of evidence, therefore, to establish any connection between the gun in the hands of the first accused Rakam Singh. This is, of course, apart from the fact that there is no case for the prosecution even that the gun was used by the first accused Rakam Singh and the only role attributed to him is that he had exhorted the second accused to fire. As far as the gun recovered from Sri Ram Singh Saini, father of the second accused, is concerned, it is submitted that no evidence is led to show that it was the same gun, which was actually used by the accused No. 2 to fire at the deceased. It is argued that in the absence of connection evidence, the prosecution version must be rejected. In this connection, it is submitted that the ballistic evidence would show that the pellets, which have been recovered from the body of Afzal, would have been fired from either the gun seized from Sahab Singh Saini or the gun seized from Sri Dhingra.

40. The contentions of the second accused are as follows:

In regard to the First Information Report, it is submitted that being the earliest information, entire matter must be reflected in the same. It is contended that PW2 (Salimullah) and Nathu have not been named as eye-witnesses. Although Inamulhaq, Mohd. Azam and Sarfaraz have been named in the First Information Report, these named witnesses have been withheld due to oblique motive. The First Information Report does not contain many details, including Afzal having came 30 to Roorkee in his Gypsy, about his visiting six polling stations, about his alighting from the Gypsy when it was intercepted by the ambassador car having Congress flag, asking of the introduction of the deceased, Rakam Singh getting annoyed and his uttering the words that the entire work is spoiled and that, at his exhortation, the fire was made. No test identification parade was made in regard to the accused. It was contended that there was frequent change of investigation due to mala fide reasons. Initially, the investigation was done by the State Police; thereafter, it was handed over to the State CB-CID; and, finally, to the CBI. It is contended that Sri V.P. Singh was sworn-in as the Prime Minister on 02.12.1989 and Sri Mulayam Singh Yadav was sworn-

in as the Chief Minister on 05.12.1989. Haridwar was a part of Uttar Pradesh State and Aslam Khan, father of the deceased, was inducted as a Cabinet Minister. Frequent change in the investigation was to victimize Sri Virendra Singh Saini. PW25 has admitted that three Ministers of the Central Government had close relationship with his brother Aslam Khan. PW28, the Investigating Officer of the CBI, has referred to Sri Hukum Singh and Vijendra Singh being arrested, their firearms being seized and sent for examination. The gun and pistol of one Sri Dhingra was also recovered and got examined. Without assigning any reason, they were allowed to go scot-free. No test identification parade regarding involvement of these suspects was held. There is violation of Article 21. 96 prosecution witnesses were cited in the charge-sheet, which was filed on 13.06.1990. A list of 43 documents and articles has been annexed.

41. It is contended that the time of incident is not established. In Police Form No. 13, commonly known as Challan Nash, the time of death is written as 07:20 p.m. The figure '2' has been changed from figure '4' by making overwriting. If the First Information Report had been in existence, where the time of occurrence was described to be 06:30 p.m., the time 07:20 would not have been written in the Challan Nash. It is contended that this shows that, up till the time when the inquest was completed, i.e. up to 11:55 p.m., the First Information Report was not in existence.

42. The ballot paper account, allegedly given by PW15 (the Returning Officer at Belri) to PW1 and the evidence of PW15, along with PW28 (the Investigating Officer), is relied on to bring about a contradiction in the time, as, in the First Information Report, the occurrence is said to have taken place at 06:30 p.m., whereas, in the ballot paper account, it is shown as 06:40 p.m. when PW1 received the ballot paper account at Belri Polling Station. PW2 was unable to give the time of occurrence. PW25, the Uncle of the deceased, would essentially say that it had become dark by that time and no specific time was enumerated. He has also said that he got information about the occurrence at 06:00 p.m. when he was in Roorkee. The distance from the alleged place of occurrence to Roorkee is 12 kms. There is omission in the statement under Section 161 of the Code of Criminal Procedure given to the CBI about the sound of discharge of fire at 06:30 p.m.; whereas, in the examination, he would say that he had heard the sound of discharge when he was taking turn for going towards Belri. In the statement of PW25, it is not 32 written that he had reached at the office of Janta Dal party near BHEL at 06:00 in the evening, but he had said that at about 06:15 in the evening, he reached there. This statement rendered impossible the arrival of PW25 at about 06:30, which is a distance of more than 12 kms., as spoken by PW1.

43. In regard to the place of occurrence, it is contended that it has been shifted six times one after the other. In the First Information Report, it is stated that the incident took place when they arrived at the metal road (Roorkee-Haridwar highway). In the plan prepared under paragraph 114 of the U.P. Police Regulations, it is stated that the Gypsy was found by the officer to have been parked at a distance of 45 steps in the east of Roorkee-Haridwar highway. About 3 steps in the east from the Gypsy, the body of the deceased was found. The Investigating Officer prepared the plan on the basis of what PW1 told him. The third place was spoken to by PW1, which is that the occurrence took place when he was about to reach the highway, i.e. about 2 to 4 paces before. Thereafter, he would appear to attempt to correct by re-fixing the place of occurrence by saying that he had correctly written in the First Information Report that, when he arrived at the main metal road, his gypsy was intercepted by the ambassador car and fire was made. Later PW1 shifts it again from the main highway to 55 paces to the lonely road going to the Belri Polling Station. Again, PW2 (Salimullah), in his cross- examination, has stated that, although he had stated to the Investigating Officer of the CBI about the place being 10 to 15 paces towards Belri from the highway, if it is not recorded, he cannot give reason for that. This 33 is pointed out as an omission amounting to a contradiction. PW22, the Radio Maintenance Officer of the District Control Room, Haridwar, has referred to an information received at 08:00 p.m. about the commission of the murder of the son of Aslam khan in village Rehmatpur. About the same, there was no re- examination by the prosecution.

44. Sahab Singh, PW 1 is star eye witness. In his testimony, he has stated that he knows the accused persons present in the Court. Out of them, one is Rakam Singh and another is, Virendra Singh. Accused Rakam Singh has been the Congress Party worker. He stated that he was also in Congress earlier. Thereafter, he had shifted in Janta Dal and now again, he is in Congress. Accused Virendra is from his community and his father was in politics. He is also in politics. Hence, he knew both the accused persons. In the year 1989, he contested the M.L.A. Election from the ticket of Janta Dal from Roorkee Constituency. His contestants were Sri Ram Singh Saini of Congress. The candidate of party of Mayawati was Haji Rao Musrtaq. In this election, votes were casted on 24.11.1989. Aslam Khan and he were in a common party and they were also personal relations with each other. For this reason, he knew Aslam Khan also. Aslam Khan had fought election of M.L.A. from Muzaffarabad area which comes in District Saharanpur. In the area, votes were casted on 22.11.1989. In the year 1989, votes were casted in two sessions. The first session was held on 22.11.89. He had gone to the area of Aslam Khan for helping, because both of them were contesting the election with same party ticket. After completing the session on 22.11.89, Aslam Khan had come to his area 34 on 23.11.89 along with his two sons, the brother as well as other workers for assisting him. The name of the eldest son of Aslam Khan is Afzal, younger son's name is Asad and brother's name is Akbar respectively. Aslam Khan and others had come to his area in his own car that was used on behalf of the party. All of them went individually to assess the condition of election by forming group on 24.11.89 at about quarter to eight. Afzal had left with his group in a separate vehicle. During his election period, the office of his party i.e. the Chief Election office was at BHEL Bus Stand, Roorkee. They departed from their office to election area on 24.11.89. He came back to this office after roaming in his election area at quarter to eight, on the very same day in the evening at about quarter past four. Afzal had also returned back there in the office after 5-7 minutes of his reaching. Afzal had come in blue colour Gypsy and along with him Salimullah, Natthu, Mohd. Azam, Inamul Haque etc. had come in the same Gypsy. At the time when Afzal came to the office, at the same time, information was received that the Booth Capturing was going on in Bileri village that time, it was not revealed that who was doing Booth Capturing. He stated that this much had been revealed that the people of Congress Party were doing the booth capturing but the names of persons doing booth capturing could not be revealed. This information was gathered at 4.30 of the evening. On getting information of booth capturing, in Afzal's Gypsy driven by Afzal himself, after hitting alongwith Salimullah, Nathu, Mohd. Azam, Sarfaraz and Inam-ulHaq @ Inam and others, started moving forward village Belri. Within about 15-20 minutes, they reached in village Belri. After reaching in village Belri, the information was 35 received that Rakam Singh and Dr. Virendra, accused present in the court, were doing the booth capturing. But prior to our reaching there, they had left that place but there was a heavy crowd assembled at the polling booth. They remained there for about 1-11/2 hour and saw that the crowd assembled on the spot was causing restriction in removing ballet boxes from there. They persuaded them and in the meanwhile, one Deputy S.P., Inspector of Police along with police force arrived on the spot and after persuading the crowd, ballot boxes were handed over to the police people. They and police people also had a conversation with the Presiding Officer and the police people asked the Presiding Officer to lodge the report of the occurrence after reaching at the Kotwali. He also had a conversation with the Presiding Officer and he had taken the details (data) of votes casted before lifting of ballot boxes. At about 6:30 in the evening, they remained in village Belri itself. While they being present in village Belri, several people of their party had reached in village Belri by their jeeps on receiving the information about the occurrence. On 24.11.1989 itself, at about 6:30 in the evening, they had moved for Roorkee sitting in the Gypsy of Afzal and in that Gypsy, along with him and Afzal, Inam-ulhaq @ Inam, Sarfaraz, Mohd. Ajam Nath Salimullah and others were also sitting. The gypsy was driven by Afzal himself. After coming out of village Belri, as soon as they were about to reach at Roorkee-Haridwar road, then 2-4 paces before, one white coloured Ambassador Car having tricolour flag, came from Haridwar side and it had come in front of our gypsy. In that tri-colour flag, election emblem of Congress party was printed. In that Ambassador car, two persons from the front seat and 36 three persons from the rear seat came out. From the front seat, both the accused persons present in the Court had come out but he does not know the persons deboarded from the rear seat. Accused persons present in the Court had double barrel gun in their hands and out of the persons came out from the backseat, two had hockey sticks and one had a baton. The driver of that Ambassador car remained seated in the car itself by keeping it started. Accused Dr. Virendra is the son of Ram Singh Saini, who was contested election against him from Congress party. Just after parking of Ambassador car in front of gypsy, Afzal came out from his gypsy stopping the same and just after Afzal stopped his gypsy and deboarded from the gypsy, and thereafter one persons out of the persons who had alighted from the rear seat, asked about the introduction of Afzal. And just on stating of Afzal that he was Afzal son of Aslam Khan and on getting his introduction, Master Rakam Singh (accused present in the Court) stated, that "this Saala has ruined all the work, let shoot him". Accused Rakam Singh had stated this fact "let shoot him" to accused Virendra Singh. Immediately, Virendra Singh opened fire by his double barrel gun upon Afzal and that bullet hit Afzal on left side of his chest and just after sustaining bullet, Afzal fallen down. They raised hue and cry just after this occurrence took place and the elder brother of Aslam Khan namely Akbar reached there from Roorkee side. Both the accused present in the Court and three other persons, when Akbar reached at the spot, ran way on their Ambassador car. At the time of this occurrence of shooting fire, the headlights of the vehicles were lightning and they had seen this occurrence in that light. Thereafter, he and other people sitting in Gypsy 37 took Afzal to Roorkee Hospital in another Maruti Van. At the time when they started lifting Afzal in the Van, one Police Inspector along with police force reached at the spot from the back. They informed about the incident to those police people and stated that the accused persons had run away towards Roorkee after shooting fire upon Afzal. On this information, those police people ran towards Roorkee on their vehicle. When they reached at Roorkee hospital, taking Afzal, then the doctor present in the hospital, declared Afzal dead. While taking Afzal to hospital, they left their Gypsy at the place of occurrence itself. After declaring Afzal as dead by the doctor, they reached at Kotwali Roorkee. He was sitting outside the Kotwali Roorkee and wrote the report of the incident and after writing the report, gave that written report in the Kotwali.

45. P.W.2 is a much emphasized witness. Let us examine what he has stated in the chief examination. He would state, inter alia, as follows:

He was a worker in the Janta Dal. He knew Aslam Khan and family, as they had purchased land in his village. Along with Mohd. Azam, Namamullah, Inamulhaq, Nathu, Sarfaraz and Afzal Khan, he went on 23.11.1989 to Roorkee in the blue coloured gypsy driven by Afzal Khan. On 24.11.1989, areas were divided to go for election area. They went in the gypsy. They reached Garh Mirpur, where Ataullah and his brother Muzammil had a meeting with Afzal. There were members of the Congress Party. They were not permitting the election agent of BSP. The accused also reached. He stated that Afzal asked these people that the election agent can be formed of any party and, on this, the second accused stated that he was son of Ram 38 Singh Saini. He said 'you might be Khan and may be of Dehradun, but here your advice will not be followed'. Afzal replied that the issue of justification would be decided in the same manner. Thereafter, they went to Mirpur. There also, accused reached chasing them. They had given their introduction in Mirpur with the polling officers. Thereafter, they reached Teliwala. There, polling was peaceful. After 10 to 15 minutes, accused persons too reached there. From Teliwala, they went to Aurangabad. From there, they went to village Aneki. There also, accused persons came behind them. Identity was given in the same manner to the polling officers. They returned thereafter to village Garh at 12:30. After staying for 2 to 4 minutes in the polling booth, they had food at the acquaintance of Afzal Khan. Via Teliwala, they reached Jassowala at about quarter to three on that day. Accused reached Jassowala also. There was some conversation between the accused and the deceased. PW2 says he does not know what the conversation was. They reached Roorkee at 04:30 in the evening at the election office. PW1 was present. Information was received about booth capturing at Belri. They had gone in blue gypsy. Reaching Belri, they saw heavy crowd at the polling booth. Meanwhile, the CO and Inspector too reached there. PW1, the deceased and the police had conversation with the polling officer. After conversation, ballot boxes were brought by CO. Thereafter, PW1, the deceased and others persuaded the general public. They proceeded towards Roorkee. They saw a police vehicle stuck in the way. Thereafter, when they proceeded a bit ahead, a white coloured ambassador car, on which Congress flag was there, stopped the way of the gypsy. Both the vehicles 39 remained started. The parking light of the gypsy and the headlight of the ambassador car were lighting. The accused and three others came out from the vehicle. He states that they had seen the accused for 2-3 times in the day in Village Belri and in Garh Mirpur also and they had given introduction and they knew them. On seeing the deceased, who boarded down from his gypsy, the persons having hockey sticks and baton asked the deceased as to who he was. On his introduction that he was son of Aslam Khan, the first accused asked the second accused that he only has ruined all the work and let shoot him. Thereupon, the fire was shot by the second accused. Meanwhile, PW25 also reached there by his vehicle.

46. In his cross-examination, however, we may notice the following statements:

There are 10 to 11 members in the family of Aslam Khan. He could not state the area of their house. He does not know, where the deceased was studying at the time of occurrence and in which class he was studying. He denies that he was doing work in the house of Aslam Khan. He was unable to state as to who was the Pradhan of Muzaffarabad area of Janta Dal at the time of occurrence. He is unable to state the name of any post holder of party of Janta Dal because it had been quite long. He is unable to state the name of present post holder of Janta Dal. He cannot state the name of the agent of Aslam Khan. He is unable to give any reason for the omission in the statement to the CBI that he had helped Aslam Khan in his capacity as worker. The omission in the statement about reaching on 23.11.1989 at Roorkee at about 10:45 in the morning and they had roamed in Roorkee and stay 40 at the Janta Dal on 23.11.1989 is brought out. He is unable to give the name of the Chief Election agent of Sahab Singh. There is omission brought out about his having set out on 24.11.1989 at about 07:45. He is unable to say how many kilometers is Ghar Mirpur from Roorkee. No doubt, he says Mirpur is towards North. He is unable to give the name of any worker when he went on 24.11.1989. He is unable to identify the appearance, height and colour of Ataullah and Muzammil. The omission about the statement that attributed to the second accused that the deceased may be Khan and may be from Dehradun, but here his dictum will not be followed, is brought out. He further says that he does not recollect the fact that from village Aneki, where they had come to village Ghar Mirpur and they stayed for 2 to 4 minutes at the polling booth and had food at the acquaintance of the deceased was disclosed to the CBI or not and, if it is not disclosed, he is unable to give the reason. The omission in the statement to the CBI about the accused also reaching Jassowala is brought out. Equally, the omission about the statement that they had returned to the election office at Roorkee is brought out. The omission about PW1 and the deceased having conversation with the polling officer is brought out. Equally, the persuasion of Afzal is established as an omission. The omission in not stating to the CBI that, after sustaining bullet, maruti van of his party had reached on the spot and they were keeping the deceased in the maruti van and, at the same time, the police vehicle, which they had left behind, arrived at the spot is brought out. The omission in his statement that, from the front seat, the accused came down and, from the back seat, three unknown persons came down is established. Equally, 41 the omission about persons having hockey sticks and baton enquiring from the deceased as to who he was, is brought out. He stated that, in the statement to the CBI, he had stated that, at the same time, he heard someone had enquired who was the deceased. He stated that such a statement had been made. He stated that he had not stated to the CBI that one out of the three persons having hockey sticks and baton had asked as to who was he. Even now, he is unable to say who had asked that question. The omission about the first accused asking the second accused that he had ruined all the work not being in the statement is established. The occurrence taking place 10 to 15 paces towards Belri is not mentioned in the statement to the CBI. The time of occurrence is given in the statement as 6; whereas, he stated that he had given the statement that it was at 06:30. He did not give the shawl at that time to the police, nor did he give it to the family members, but they were informed about it. The statement about their having tied tehmud on the injury of the deceased is not there in his statement to the police for which he has no reason. Plenty of blood had oozed out of the deceased on the spot, from the spot till the van and in between also and in the van too blood had fallen. Blood had not fallen in the middle. At the house of Afzal, police was there, but he did not disclose to the police that he saw the occurrence. He had gone to Police Station Kotwali to see the gypsy. He went alone. At that time also, he has not disclosed in the police station about his witnessing the murder. He denies having gone with Salim Ahmad S/o Sultan Ahmad and his brother at the Police Station Kotwali, Roorkee. He does not recollect having gone with the said Salim to take the gypsy. He denies that he had 42 taken the gypsy of the deceased for supurdgi along with Salim Ahmad and Nasim.

47. P.W.25 Mohd. Akbar Khan in his statement stated that he was living in Dehradun since his birth. They are two brothers. The name of his brother is Mohd. Aslam Khan and his brother is ten years' younger than him. He resides in Delhi and in the year 1989, he was residing at 75-A Rajpur Road. He stated that they were residing together. He had two sons and one daughter. The name of his elder son was Mohd. Afzal Khan, younger one was Mohd. Asad Khan. The age of Mohd. Afzal Khan in the year 1989 might have been 21 years. He stated that in the year 1989, his brother was in Janta Dal Party. The election of U.P. State Assembly was held in the year 1989. In the year 1989, his brother had contested the election of M.L.A. from Juzaffarabad-Saharanpur Constituency on the voter emblem of Janta Dal. From Roorkee, Sahab Singh Saini had stood on the ticket of Janta Dal. The date of election of his brother was 22.11.1989. He stated that he along with both sons of his brother, the wife of his brother and his son Mohd. Ali Khan participated in the election campaigning. Sri Sahab Singh Saini, who was the candidate of Janta Dal from Roorkee seat, had helped his brother a lot from outside. He stated that in the election of Sahab Singh Saini his brother Mohd. Aslam Khan, the son of his brother Afzal Khan and their various workers had done the work/ campaigning. In the campaigning of Sahab Singh, his brother and his son Afzal Khan had taken the interest in an extraordinary way. The date of election of Sahab Singh was 24.11.1989. On that day, along with Sahab Singh, Mohd. Afzal Khan had gone at 43 the polling booth. He and Mohd. Aslam Khan had gone. They went to Roorkee on 23.11.1989. The election office of Sahab Singh Saini was near B.H.E.L. Bus Stand, Roorkee and they had stayed at a distance of 200 yards from office. He stated that in the morning of 24.11.1989, at about 8 of the morning, Afzal Khan went along with Sahab Singh Saini for the purpose of campaigning. Afzal Khan Had blue colour Gypsy without roof with him. The number of Gypsy was DNH 2242. This Gypsy was registered in the name of company by whom we had borrowed the loan. On that day, Afzal was wearing white colour Kurta Pant cut white trouser, white socks, shoes of Reebok Company, one brown colour Jacket and one warm shawl. He submitted that if those clotes are shown to him, then he can identify the same. Thereafter, before the Court, one bundle in sealed condition was produced and seal was removed. On seeing the clotes taken out from the bundle VIZ. Jacket Ex. 17, white Kurta Ex. 18, pant- cut-Payjama Ex. 19, shoes Ex. 20, white socks Ex. 21 and red underwear Ex. 22, he stated that these are the same clothes, which Afzal Khan was wearing on that day. On seeing the Shawl Ex. 23, he stated that the same Shawl Afzal was wearing. All the aforesaid clothes are stained with blood. He stated that on 24.11.1989, in the area Pathanpura, which was near to his office, he was doing campaigning by roaming in the area. In that election, against Sahab Singh Saini, contestant Ram Singh Saini was contesting the election. He stated that near the bus stand going to BHEL, which was the office of Sahab Singh Saini, he reached there at about 6 of the evening. Just after reaching there, he came to know that in village Belri, Congress workers' were doing the booth capturing and 44 Sahab Singh Saini, Afzal Khan along with other people have gone to village Belri. He called the vehicle and along with his two companions Salim S/o Sultan and Mustakim Pradhan S/o Wahid Khan, he proceeded for village Belri. He was having Mahindra Jeep NO. DAE- 1371. He stated that as soon as they went on Roorkee- Haridwar road and going towards village Belri, they took 'U'' turn towards brick road, then the sound of fire was heard. He stated that it had become dark by then and the headlights of their vehicle were on. When they turned around, he saw that Gypsy of Afzal was standing and on the other side, a white colour Ambassador vehicle having Congress Flag was parked and driver was sitting in Ambassador and five persons, close to the Gypsy of Afzal, came very fast and sat in Ambassador Car. He stated that two were having guns in their hands and two were having hockey sticks and one was having a baton. Out of those five, he knew two persons from before; out of whom one's name was Virendra Singh, who is the son of Ram Singh Saini and the name of another was Master Rakam Singh. Both the accused were present in the Court. He identified them. They both had double barrel gun in their hands. They all sat in the vehicle and the said vehicle went towards Roorkee. He stated that he saw thereafter that the dead body of Afzal, smeared with blood, was lying there. Sahab Singh was near to him. Besides, Mulla Salim, Nathu, Mohd. Azam, Inamullaq, Sarfaraj and others were there. They stated that Virendra Singh had shot fire upon Afzal Khan and stated that he only has ruined all our work. On the exhortation of Master Rakam Singh, he shot the fire. One shawl was lying there which was of Afzal, which was lifted by someone. Nathu had tied his Tehmad on 45 the chest of Afzal in order to stop flowing of blood. Thereon seeing this, his health had become quite low and he was spinning and he had fallen. Sahab Singh Saini with the help of his companions took him towards Civil Hospital, Roorkee in a Van. He stated that he heard the sound of fire at about 6:30 of the evening. Then his vehicle was driven by Salim and sitting therein, they also went behind and reached at Civil Hospital, Roorkee where the doctors declared Afzal brought dead. He stated that he did not lodge the report of incident because Sahab Singh Saini stated that the incident has taken place before him and himself would lodge the report. He stated that post- mortem on the dead body of Afzal was conducted on the next day i.e. on 25.11.1989 and the dead body was handed over to them. He stated that police had made enquiry from him on 29.11.1989 and C.B.I. people was met him for the first time on 22.12.1989. Mr. Chatwal of CBI had a conversation with him verbally. He stated that he and Sahab Singh had shown the spot to Chatwal, Sir. Mr Chatwal had recorded his statement in PWD Guest House, Roorkee on 23.12.1989. He stated that on 26.12.1989, Mulla Salim had given the Shawl Ex. 23 in possession of CBI at 5 Teg Bahadur Road, Dehradun, the memo whereof was prepared and he also put his signature on that memo. On seeing the memo Ex Ka-4/1 stated that at point no. 1, his signature is there. Shawl was taken into possession and seal was prepared. On the same day, Tehmad Ex. 24 was handed over to CBI by Nathu.

48. PW1 Sahab Singh Saini is main eye witness. He stated that he had seen the incident. According to him, the deceased as well as the accused/appellants 46 came out of their respective vehicles. When deceased gave his introduction that he is Afzal and son of Aslam Khan, the first accused Master Rakam Singh stated this "this sala has ruined all the work, let him be shot". At his instigation, second accused Virendra Singh opened fire by his double barrel gun upon Afzal and that bullet hit the deceased on his chest and he fell down. Statement of this witness about the role of the accused/ appellants is specific. Similar is the statement of PW2, Salimullah. Another witness, Mohd. Akbar Khan, PW25 stated that when he reached at the place of occurrence, he saw Gypsy belonging to Afzal and Ambassador car in which driver was sitting. Five persons standing there. Two persons, namely, Rakam Singh and Virendra Singh, present appellants, were having gun in their hand. They sat in Ambassador car. Thereafter, the vehicle went towards Roorkee. This witness also stated that nearby Sahab Singh Saini, Mullah Salim, Nathu, Mohd. Azam, Inamullahaq, Sarfaraz and others were standing. They informed him that at the instigation of Master Rakam Singh, the second accused fired at the deceased. In normal course, statements of these witnesses are sufficient to hold the accused persons guilty for the offence they are charged. At first instance, their version appeared to us as reliable. Their evidence, being direct evidence, appeared to us as sufficient to hold the appellants as guilty. But, by carefully examining entire evidence, we notice the following:

(i) Salimullah was examined as PW2 and is eye witness. Surprisingly, he was not named in the F.I.R.

lodged at the instance of PW1. It is said that he had gathered a shawl, which was worn by the deceased and which contained four holes as a result of firing. He 47 surfaced with the shawl after 32 days and that shawl was produced only on the occasion of the second questioning by the third investigating agency, C.B.I. Shawl was washed also. It is quite natural that person, who is eye witness to the incident and who takes the shawl of the deceased with him, will immediately handover the same to the police. It is very difficult to believe that such a person will keep quiet for a period of 32 days and will keep with him bloodstained and bullet marked shawl and will handover the same to the Investigating Officer after washing the same. In our view, the testimony of PW 2 cannot be relied.

(ii) The case of the prosecution is that the accused-appellant no. 2 fired at the deceased after enquiring his identity. Naturally, shot was fired from front side. In medical report, it is the case of the appellants that deceased sustained injury at a point, which is six cms. below his left nipple, and from there, the pellets have been found in lungs and liver. Therefore, bullet travelled from left to right going down backwards. This can happen only when the person who fired at the deceased was at a higher point. Injuries going down are not found when someone is fired from the front. This also leaves scope of doubts.

(iii) Nathu, who is said to be present at the time when deceased was shot, has not been examined by the prosecution. Nathu is the person who had tied the tehmad on the wound of the deceased. Tehmad was produced by Nathu on 32nd day. He was, in fact, a very crucial witness. But he was not produced by the prosecution. Why he was not produced, no answer is found by us.

(iv) During hearing, it was argued that real culprit is someone else and appellants have been implicated due to political rivalry. It was also stated that three other persons were also apprehended by the C.B.I. Weapons were recovered and were sent to the F.S.L. for investigation. Case Diary was produced before us by the counsel for the C.B.I. Lie Detector Test was also conducted. We find that C.B.I. went further about the role of other persons. Their Polygraph Test was also conducted. All, except one, pointed out the role of one person in the crime. We could not find any reason for closing the investigation in respect of them at that level by the C.B.I.

(v) We also find other lapses on the part of investigation. There is nothing to show that any attempt was made to trace the drivers of the vehicles at the place of occurrence for taking their evidence.

49. By considering the entire material available on record, we are of the view that discrepancies as discussed above, are sufficient to reach the conclusion that prosecution failed to prove its case beyond reasonable doubt and the accused appellants are entitled for the benefit of doubt.

50. Consequently, both the appeals are allowed. Impugned judgment and order dated 02.01.2015 passed by Third Additional District and Sessions Judge/ Special Judge (C.B.I.), Dehradun in Session Trial No. 164 of 1991, C.B.I. Vs. Master Rakam Singh & another under Section 147, 148, 149 read with Section 302 I.P.C. is hereby set aside giving appellants benefit of doubt. Appellants are acquitted of the charges framed against them. They are on bail. They need not surrender. Their personal bonds are cancelled and sureties are discharged.

51. Let the lower Court record along with copy of this judgment be forwarded to the learned trial Court for necessary action.

        (U.C. Dhyani, J.)                 (V.K. Bist, J.)
                            09.01.2018

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