Smt. Mukesh Dagar vs State Of Chhattisgarh on 12 May, 2026

[Cites 29, Cited by 0]

Chattisgarh High Court

Smt. Mukesh Dagar vs State Of Chhattisgarh on 12 May, 2026

1 - Smt. Mukesh Dagar Wd/o Late Rajesh Dagar, Aged About 37 Years, R/o Maruti Enclave, Tatibandh, Raipur, Civil and Revenue District Raipur, Chhattisgarh. At Present R/o House No. 272, C/o Jai Singh Yadav, Ground Floor, Near Shubham Store, Naharpur, Sector- 7, Rohini, New Delhi- 110085., Delhi

---Appellant Versus 1 - State of Chhattisgarh S/o Through SHO Amanaka, Raipur, District- Raipur, Chhattisgarh., Chhattisgarh 2 - Tinu @ Satender Singh S/o Balbir Singh, Aged About 33 Years, R/o Flat No. 66, Suruchi Apartment, Sector- 10 Dwarika, New Delhi., District : New Delhi, Delhi 3 - Preetam S/o Shriram Kumar Aged About 36 Years, R/o Flat No. 52, Sector- 23, Pocket- 1 D, D. A. Flat No. Dwarika, New Delhi., District :

New Delhi, Delhi

--- Respondents (Cause-title taken from Case Information System) For Appellant : Mr. Ritesh Kumar and Mr. Piyush Patel, Advocates (in both the appeals) For Respondent/State : Mr. Shaleen Singh Baghel, Govt. Advocate. For Respondents No. 1, 2 and : Mr. Maneesh Sharma, Amicus Curiae 4 (in ACQA No. 34/2015) For Respondents No.2 and 3 : Mr. Maneesh Sharma, Advocate. (in ACQA No.92/2017) Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 12-05-2026

1. These two acquittal appeals arise out of the same incident and the same Sessions Trial, therefore, they are being heard and decided together.

2. The ACQA No. 34/2015 filed by the appellant Smt. Mukesh Dagar (complainant) against the impugned judgment of acquittal dated 05.03.2013 passed by learned IVth Additional Sessions Judge, Raipur in Sessions Case No.154/2011 whereby respondent/accused Jitendra @ Monu Luthra has been acquitted from the charge under Section 120-B, 302/34 of IPC and Section 25A and 27 of Arms Act and respondents/accused persons Ranvir Singh @ Lala, Kamal @ Kaushal Jatiya and Viraiyya Sheikhar have been acquitted from the charge under Section 120-B of IPC.

3. ACQA No. 92/2017 has been filed by the appellant, Smt. Mukesh Dagar (complainant) against the impugned judgment of acquittal dated 13.01.2016, passed by learned IVth Additional Sessions Judge, Raipur in Sessions Case No.154/2011, whereby the respondents/accused persons Tinu @ Satender Singh and Preetam have been acquitted from the charge under Section 120-

B of IPC.

4. Initially after investigation in the Crime No.61/2011 registered at Police Station Amanaka Raipur, charge sheet was filed on 11.07.2011, against three accused persons who were arrested namely, Ranvir Singh @ Lala, Jitendra @ Monu Luthra and Kamal @ Kaushal Jatiya and six other accused persons, namely, Tinu @ Satender, Preetam, Sheikhar, Rajesh @ Rahul @ Raju @ Mogali, Dhanna @ Dharmendra and Ajay @ Vijay who were absconding. The accused Viraiyya Sheikhar was arrested on 4 15.07.2011, and a supplementary charge sheet was filed against him on 22.09.2011. The accused Dhanna @ Dharmendra was also arrested on 26.08.2014, and another supplementary charge sheet has been filed against him before the learned trial Court. Subsequent to that, the two other accused persons, Tinu @ Satender and Preetam, have been arrested, and a supplementary charge sheet has been filed against them also. Their case was also committed to the learned Sessions Court for trial as per respective supplementary charge sheets filed against them, and they were put to trial accordingly. The initial four accused persons Ranvir Singh @ Lala, Jitendra @ Monu Luthra, Kamal @ Kaushal Jatiya and Viraiyya Sheikhar were acquitted by the learned trial Court vide its judgment dated 05.03.2013, the accused Dhanna @ Dharmendra Singh was acquitted by the learned trial Court vide its judgment dated 31.01.2015 and the accused persons Tinu @ Satender Singh and Preetam have been acquitted by the learned trial Court vide its judgment dated 13.01.2016. The complainant has filed the present two acquittal appeals against the judgment dated 05.03.2013 and 13.01.2016, respectively, and has not filed any acquittal appeal against the judgment dated 31.01.2015 by which the accused Dhanna @ Dharmendra has been acquitted.

5. The brief facts of the case of the prosecution are that on 24.01.2011 at about 08:30 a.m., the deceased Rajesh Dagar was murdered by a motorcycle rider by gunshot fire near Dumar talab, 5 Thakurdev mandir main road. After hearing the noise, the people of the vicinity gathered there, including the complainant Pranjal Tiwari (PW-1). They saw the deceased in an injured condition in the driver's seat of his car. At the same time, the police also came, and the deceased disclosed his name as Rajesh @ Raju Singh. He was being taken to the hospital where his dying declaration was recorded; however, he succumbed to his injuries later on. Pranjal Tiwari PW-1 lodged dehati nalisi Ex.-P/1 and thereafter, FIR Ex.-P/62 was registered against an unknown person for the offence under Section 307 of the IPC. The injured was taken to B.R. Ambedkar Hospital, Raipur, where he was being treated for his injuries. Gunshot injury over the chest and abdomen was found by the doctor, and his indoor patient summary sheet Ex.-P/39 was maintained. During the treatment, the dying declaration of the deceased Rajesh Dagar Ex.-P/85 was recorded by Additional Tahsildar, Raipur on 24.01.2011 at 10:25 a.m., but he died at 12:10 p.m on the same day. The merg intimation was given by the doctor of Ambedkar Hospital, Raipur, to the jurisdictional police station, where merg intimation Ex.-P/19 was recorded. Inquest of the dead body of the deceased Ex.-P/90 was prepared in the presence of the witnesses, and then the dead body was sent for its postmortem to Pt. J.N.M. Medical College, Raipur, where PW-16 Doctor Shiv Narayan Manjhi and Doctor R.K. Patel conducted postmortem of the dead body of the deceased, who gave their postmortem report Ex.-P/34. While 6 conducting the postmortem, the doctor has noticed the following injuries on the dead body:-

(1) Contused lacerated wound oval shaped on right side of back on lateral aspect, 16 cm. below from inferior angle of scapula, soft tissue inverted after entering skin and soft tissue then entered into thoresic cavity just below 9th rib, fracture of rib in two fregments and inverted and few pieces are found in thorasic cavity then entered into lower lob of right lung and lacerated inferior surface posterio anterialy through and through, all around red colour ecchymosis present, laceration also present on diafrom and right lob of liver posterior superior surface in course of wound, right lung collapsed contains about 1.5 liter blood then injury meet into injury no. 2 as exit wound, (2) C.L.W. (exit wound) present on the right side chest at the level of the 6th rib, right to mid plain anteriorly, in the area of tissue fibres are averted, and fracture of the 6 th rib into fragments and averted outside, (3) C.L.W. (entry wound) present on chest 2 cm. below to supra sternal notch mid plain in area then entered into muscles, b/n pectorelis major and minor, causing just below the clavicle ribs are intact, then goes medial to lateral and entered just below the shoulder joint and fracture of the shaft of the humerus all around, with ecchymosis present then meets injury no.4 as the exit wound, (4) C.L.W. as exit wound present on left shoulder posterolateral aspect, then meet to injury no.3, (5) C.L.W. (entry wound) present on the right loin region above the iliac crest, then entered b/n abdominal m/s coursing posteriorly and anteroposteriorly muscles are lacerated, and then meet at injury no.6 as the exit wound.

(6) C.L.W. (exit wound) present on the right hypocondrium, mid clevicular plain meets in injury no.5, (7) C.L.W. present on just below injury no.5 transverse with muscle deep, (8) C.L.W. (entry wound) present on the right elbow joint, then entered into the muscles and fracture of upper part of the ulna, then met in exit wound no.9.

(9) C.L.W. exit wound present on the anteroposterior aspect of the elbow joint, (10) C.L.W. entry wound present on the right elbow joint dorsal aspect, then entered into the muscles, and a fracture of the upper part of the radius ulna bone, then meet in the exit wound no.11. (11) C.L.W. exit wound present on the just below the elbow joint anterior aspect, which is the exit wound of wound no.10, (12) C.L.W. present on right elbow joint, dorsal lateral aspect, muscle deep transversely, (13) C.L.W. is present on the right wrist in the dorsal-lateral aspect.

The doctor has opined that the death was due to haemorrhage and shock as a result of firearm injury to the body, the death was homicidal in nature, and the duration of injuries was within 12 hours prior to death. A short postmortem report Ex.-P/35, was also given by the doctor.

6. Spot map Ex.-P/2 was prepared by the police. Three fired cartridges, three empty cartridges and one bullet have been seized from the spot vide seizure memo Ex.-P/3. One old Santro car bearing No. DL 08 CN 7562 was also seized from the spot vide seizure memo Ex.-P/4. Two bullets from the left front door of 8 the car and two bullets from the rear door of the car have been seized vide seizure memo Ex.-P/5. The blood stains were wiped out through the piece of cotton from the driving seat of the said Santro car vide seizure memo Ex.-P/6. One piece of regzine seat cover having blood stains and another piece of plain seat cover has been seized from the Santro car vide seizure memo Ex.-P/7. One pair of Hawai chappal and two mobile phones have also been seized from the car vide seizure memo Ex.-P/8. The clothes of the deceased have also been seized at Dr. B.R. Ambedkar Hospital, Raipur, vide seizure memo Ex.-P/9. One IDIS card of deceased Rajesh, the bill of the hotel has been seized from Gagan Palace hotel, Tatibandh Raipur vide seizure memo Ex.- P/14. One passbook of SBI, which was in the name of Ranvir Singh and a copy of the sale deed have been seized vide seizure memo Ex.-P/29. The household articles have been seized from the House No. B/20, Maruti/Harshit Nagar, Raipur vide seizure memo Ex.-P/30, which was given in supurdnama to Ranvir @ Lala through the document Ex.-P/31. One notebook maintained by a cyber café with respect to the railway reservation of the deceased Rajesh from Raipur to Delhi was also seized vide seizure memo Ex.-P/33. The police have also obtained the bed head ticket of the deceased, which is Ex.-P/39. The viscera of the deceased were seized vide seizure memo Ex.-P/40. The clothes of the deceased were also seized vide seizure memo Ex.-P/44. The rojnamcha dated 24.01.2011 of Police Station Amanaka, 9 Raipur, is Ex.-P/47C by which the police received the information about the incident, and their departure rojnamcha is Ex.-P/48C. The police made a requisition to the doctor of Ambedkar Hospital, Raipur, about the condition of the deceased as to whether he can give a statement or not and then the doctor made an endorsement at 10:15 a.m. on 24.01.2011 that the patient can give a statement at present, and the document is Ex.-P/49 and P/83.

7. The accused Kamal @ Kaushal Jatiya was arrested on 21.03.2011 and his memorandum statement Ex.-P/53 was recorded, the accused Jitendra Luthra @ Monu was also arrested on 21.03.2011, and his memorandum statement Ex.-P/54 was recorded. The supplementary memorandum statement of accused Jitendra Luthra @ Monu was recorded on 26.03.2011, which is Ex.-P/55. From the accused Jitendra @ Monu, one live cartridge, five mobile phones and one pistol have been seized vide seizure memo Ex.-P/56 and P/57. From the accused Kamal @ Kaushal, one key of the house of Harshit Nagar, Raipur, and a food junction card 11529 have been seized vide seizure memo Ex.-P/58. The statement of B. Sheikhar Ex.-P/61 was also recorded by the police in the presence of the witnesses.

8. During the investigation, one master CD from Rajdhani restaurant, CCTV footage of R.K. Mall and a feedback card have been seized vide seizure memo Ex.-P/86. The rojnamcha with respect to the arrest of the accused Viraiyya Sheikhar at Chennai 10 Airport are Ex.-P/97 and P/98. The sanction for prosecution of the accused persons under Sections 25 and 27 of the Arms Act given by the District Magistrate, Raipur, is Ex.-P/99. The CDR of the mobile phones seized in the case are Ex.-P/100. To P/101. The permission obtained from the Ministry of Civil Aviation, Govt. of India, is Ex.-P/103. The pieces of seat cover, cotton pieces, clothes of the accused Jitendra @ Monu were sent to FSL examination to State FSL Raipur, from where report Ex.-P/104 was received, and blood was found on all the articles except the plain seat cover and plain cotton. During the investigation, one full shirt, full pant, SIM cards, a food junction card and a photograph of deceased Rajesh have been seized from accused Jitendra @ Monu, one Pulser bike, three SIM cards, one Tata Sky card, one bill, one photo of deceased Rajesh and one liquor bottle and glass have been seized from accused Kamal @ Kaushal. On the basis of the memorandum statement of Viraiyya Sheikhar Ex.-P/17, one mobile phone has been seized from him vide seizure memo Ex.-P/18.

9. The accused persons were put to a Test Identification Parade, which was conducted by the Executive Magistrate on 24.03.2011 at Tahsil Office, Raipur, in which the accused Jitendra @ Monu and Kamal @ Kaushal Jatiya were identified by the witnesses, and TIP memo Ex.-P/21 was prepared. Statements of the witnesses under Section 161 of the Cr.P.C. have been recorded, and after completion of the usual investigation, charge 11 sheets/supplementary charge sheets have been filed against the accused persons respectively as per their arrest on different dates, as has been mentioned in the earlier part of this judgment.

10. The case was committed to the learned trial Court for its trial. The learned trial Court has framed charge against the accused Ranvit @ Lala for the offence under Section 120B of the IPC, against the accused Jitendra @ Monu for the offence under Section 120B, 302/34 of the IPC and 25A and 27 of Arms Act, against the accused Kamal @ Kaushal under Section 120B of IPC, Viraiyya Sheikhar under Section 120B of IPC, Dhanna @ Dharmendra Singh under Section 120B of IPC, Tinu @ Satender Singh under Section 120B of IPC and Preetam under Section 120B of IPC. All the accused persons denied the charge and claimed trial.

11. In order to prove the charge against the accused persons, the prosecution has examined as many as 46 witnesses. The statement of the accused persons under Section 313 of Cr.P.C. has also been recorded, in which they denied the circumstances that appeared against them, pleaded innocence and have submitted that they have been falsely implicated in the offence.

12. It is necessary to notice here that initially, when a charge sheet was filed against four accused persons, namely, Ranvir Singh @ Lala, Jitendra @ Monu Luthra, Kamal @ Kaushal Jatiya and Viraiyya Sheikhar, the prosecution had examined 46 witnesses. Thereafter, the judgment was passed by the learned trial Court, acquitting all the aforesaid four accused persons vide its 12 judgment dated 05.03.2013. On 21.08.2014, the accused Dhanna @ Dharmendra surrendered before the learned trial Court and then the charge against him was framed on 24.11.2014. The witnesses, who were earlier examined, were recalled for further examination/re-cross-examination by the accused Dhanna @ Dharmendra, and then the judgment was passed by the learned trial Court on 31.01.2015. Thereafter, when the other two co- accused persons, Tinu @ Satender and Preetam, were arrested, the case was again committed to the learned trial Court against those two other accused persons, Tinu @ Satender and Preetam, on 07.05.2015. The charge against these two accused persons was framed on 22.06.2015, and the learned trial Court proceeded with the trial of the case against them. On 25.06.2015, an application was filed by the accused Tinu @ Satender and Preetam through their counsel for admitting the documents which are already exhibited in the case during the earlier phase of trial and the evidence of the witnesses recorded thereunder. The accused persons were permitted to admit the documents as well as the evidence of witnesses, which are already on record vide order dated 26.06.2015.

13. On 29.06.2015, the prosecution submitted that it wants to re-

examine Smt. Mukesh Dagar, Nishant Dagar, Bhupendra Kumar and Ravinder Singh. At the same time, the accused persons have also filed an application for recross-examination of witness Pulak Bhattacharya and Doctor Narendra Narsingh. The applications 13 filed by the accused persons were allowed, and both these witnesses Doctor Narendra Narsingh and Pulak Bhattacharya, were recross-examined on 16.07.2015 and then the summons to the witnesses, Smt. Mukesh Dagar, Nishant Dagar and Bhupendra Kumar were issued vide order dated 17.07.2015. On 13.08.2015, despite service of summons upon the witness Ravinder Singh, he did not turn up for evidence and Smt. Mukesh Dagar represented through her counsel and made an application along with a copy of the order dated 04.08.2015 passed by the High Court in CRR No.627/2015, and then summons were issued to Smt. Mukesh Dagar, Nishant Dagar and a bailable warrant was issued to Ravinder Singh.

14. On 28.08.2015, the summons issued to Smt. Mukesh Dagar, Nishant Dagar and bailable warrant issued to Ravinder Singh were returned unserved with the endorsement of refuse to accept, and then a warrant of arrest was issued against the witnesses. The arrest warrant could not be served upon the witnesses for one reason or another, and the dates were adjourned. On 26.10.2015, the witnesses Smt. Mukesh Dagar and Nishant Dagar appeared before the Court and stated that she does not want to continue the hearing of her case before the same Presiding Officer, and she already sent her application through registered post to the Hon'ble Chief Justice of Chhattisgarh High Court. She also made an application before the learned trial Court for the same and prayed for transfer of the 14 case to any other court. Vide order dated 27.10.2015, the learned trial Court, for want of any order of transfer of the case to any other Court, continued the hearing of the case and again on 03.11.2015, it was observed by the learned trial Court that the witnesses Smt. Mukesh Dagar and Nishant Dagar had appeared before the trial Court and stated that they did not want to give evidence, and thus, these two witnesses were left without their re-cross-examination. He also issued an arrest warrant against two other witnesses, Ravinder and Bhupendra and issued a summons against Smt. Mukesh Dagar and Nishant Dagar. On 17.11.2015, Nishant Kumar Dagar appeared, and he was examined and cross-examined by the accused persons, and he made an application for the exemption from appearance of his mother, Smt. Mukesh Dagar submitted that due to the unavailability of railway reservations, she could not come. It has also been observed that since the prosecution has failed to serve the arrest warrant against the witness Bhupendra and Ravinder Singh, the issuance of further arrest warrants to them is not in the interest of justice and issued summons only to Smt. Mukesh Dagar. On 02.12.2015, a report was submitted by the police that the summons could not be served upon Smt. Mukesh Dagar, as she was not found at her given address and thereafter, observing the earlier sequence of events, the right to lead evidence of the prosecution was closed, and the case was fixed for the accused statement. Thereafter, after hearing the parties' judgment was 15 passed on 13.01.2016, and these two accused persons, Tinu @ Satender and Preetam, have also been acquitted of the offence.

15. Learned counsel appearing for the appellant/complainant submitted that there is sufficient evidence against the accused persons to convict them of the offence in question. The prosecution has proved its case beyond a reasonable doubt, and but for minor omission and contradiction, the evidence of the prosecution witnesses is reliable. There is evidence with respect to motive to commit murder as the deceased and the accused, Tinu @ Satender and Preetam, were close relatives and had a business dispute and a money transaction. In the dying declaration, the deceased has clearly stated that he was being killed by the accused, Tinu. The motive has been proved by the evidence of Smt. Mukesh Dagar PW-3, who is the wife of the deceased. She stated in her evidence that an amount of Rs. 2 lacs was outstanding in favour of her husband against the accused Preetam and Rs. 1 crore against the accused Satender. Her husband and both the accused persons were having a business rivalry, and the accused Preetam got a case registered through his wife against the deceased Rajesh at Dwarika Sector 3 Police Station, New Delhi, for the offence of outraging the modesty and threatening. The conspiracy and conduct of the accused persons clearly demonstrate that all the accused persons were involved in the commission of the offence, yet the learned trial Court acquitted the accused persons. The deceased 16 was immediately taken to the hospital, where his dying declaration Ex.-P/85 was recorded by the Addl. Tahsildar after obtaining the certificate of fitness. The doctor who treated the deceased has given a certificate in the documents Ex.-P/49 and P/83. He would also submit that the test identification parade of the accused persons has also been proved by the Tahsildar PW- 22, who conducted the TIP in accordance with law and the same is supported by other witnesses also. The learned trial Court has also erred in disbelieving the call details report to hold a conspiracy between the accused persons. The seizure of incriminating articles, a pistol, and cartridges has duly supported the prosecution that it was a preplanned murder by the accused persons in furtherance of their criminal conspiracy. Therefore, the impugned judgment of acquittal is liable to be set aside, and the accused persons may be convicted for the alleged offences.

16. On the other hand, learned counsel appearing for the State would submit that based on the evidence available on record, the learned trial Court has passed its judgment.

17. In ACQA No.34/2015, the respondent No.3 has died, and the offence against him is abated. The notices of the acquittal appeal to the respondents No.1 and 4 have been served upon them, but they have not made their appearance. The notice to the respondent No.2 has been served upon his father on 09.05.2026, and he too has not made his appearance, hence notice to them is deem sufficient. Shri Maneesha Sharma, learned counsel 17 appearing in ACQA No. 92/2017 for accused persons/respondent Nos. 2 and 3 is appointed as Amicus Curiae on behalf of accused persons/respondent Nos. 1, 2 and 4 respectively in ACQA No. 34/2015 and he has consented for the same, hence the Court proceed to decide the appeal after hearing the learned counsel for the State as well as learned counsel for the accused persons/respondents in both the acquittal appeals.

18. Learned counsel appearing for the respondent Nos. 1 Ranvir Singh, 2-Jitendra @ Monu Luthra, 4- Viraiyya Sheikhar (ACQA No. 34/2015) (as Amicus Curiae) and Tinu@ Satender and Preetam (ACQA No.92/2017) would submit that the judgment of acquittal passed by the learned trial Court is strictly in accordance with law and does not require any interference. There are material omissions and contradictions in the evidence of the prosecution witnesses and the witness Smt. Mukesh Dagar, the wife of the deceased, who is said to be the witness of motive and conspiracy against the present respondents have not produced herself for her re-examination/re-cross-examination despite having knowledge of the proceeding and appearing before the learned trial Court. In the absence of any cross-examination by the present respondents, the earlier cross-examination with respect to other accused persons cannot be considered against the present accused persons. Despite the opportunity and appearing before the learned trial Court when she has not produced herself for cross-examination, an adverse inference is 18 required to be drawn against her, which the learned trial Court has rightly done. The dying declaration allegedly made by the deceased is also full of suspicion with respect to his condition to give a statement and certification from the doctor for the same. He would also submit that in the dying declaration, the deceased raised suspicion that he was being killed by Tinu. However, it is only a suspicion, and in the absence of any cogent and clinching evidence about the conspiracy and acting upon the conspiracy, it cannot be said that the present respondents killed the deceased. The present respondents were not present at the sport, and to connect them with the offence in question, the prosecution is required to prove the link between the present respondents and the other accused persons through direct evidence or electronic evidence, which the prosecution has failed to do. Though there is a call details record, it has not been proved by the prosecution what their conversation was. He would also submit that the deceased was involved in the illegal activities of smuggling of rakta chandan and having criminal antecedents of various offences throughout the country, and there is every possibility of involvement of any other accused persons in the offence. The criminal history of the deceased has been admitted by the Investigating Officer. Thus, in the absence of any cogent, clinching and corroborative evidence regarding conspiracy and involvement of the accused persons in the offence in question, they cannot be convicted, and their plea of innocence has been 19 supported by the judgment of acquittal. Therefore, the acquittal appeal has no merits and the same is liable to be dismissed.

19. We have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection.

20. In the present case, initially, the trial was conducted against four accused persons, Ranvir @ Lala, Jitendra @ Monu Luthra, Kamal @ Kaushal Jatiya and Viraiyya Sheikhar and witnesses were examined and cross-examined by them. Subsequently, the co-accused Dhanna @ Dharmendra was arrested, and further trial was conducted against him, and he was also examined/cross-examined the witnesses. Again, when two other accused persons, Satender @ Tinu and Preetam, were arrested, the examination/re-examination and re-cross-examination of the witnesses were done, except the cross-examination of PW-3 Smt. Mukesh Dagar. To avoid any contradictions and repetition of the evidence with respect to the accused persons, we are examining the evidence collectively.

21. There is an allegation of conspiracy and the murder of deceased Rajesh Dagar by gunshot fire on account of a commercial dispute between the deceased and the accused Satender @ Tinu and Preetam, and they hired the other accused persons and ultimately executed their plan. The learned trial Court acquitted the accused persons, holding that the conspiracy had not been proved and the suspicion, however strong, cannot take the place of the proof. The dying declaration Ex.-P/85 has also been found 20 doubtful for the reason that PW-35 Doctor Manju Singh, who gave the first aid to the deceased, has stated in her evidence that the condition of the patient was very critical. Doctor Rajendra Agrawal PW-21, who also gave medical treatment to the deceased, has admitted in his cross-examination that the deceased was not in a position to talk about anything. He immediately referred him to the surgical department. The person who took him to the hospital, Pranjal Tiwari (PW-1), has also stated in his evidence that the deceased was in an unconscious condition and was not able to talk. When all these witnesses stated about the fact that the deceased was not in a condition to talk about anything, recording of his dying declaration by Pulak Bhattacharya, PW-42 cannot be free from any doubt. Except for saying one line that "eq>s NksVk HkkbZ us ejok;k gS" and "Vhuw us ejok;k gS", thereafter, he again went into unconsciousness, which is doubtful.

22. In the matter of Nagendra Sah Vs. State of Bihar, 2021 (10) SCC 725 in paragraphs 17 and 18 replying upon the golden principles enumerated in case Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 (4) SCC 116, the Supreme Court has held as under:

"17. As the entire case is based on circumstantial evidence, we may make a useful reference to a leading decision of this Court on the subject. In the case of Sharad Birdhichand Sarda v. State of Maharashtra2, in paragraph 153, this Court has laid down five golden principles (Panchsheel) which govern a case based only on circumstantial evidence. Paragraph 153 reads thus : - 21

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra [(1973) 2 SCC 793] where the following observations were made:

19.....Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." (emphasis added).

18. Paragraphs 158 to 160 of the said decision are also relevant which read thus :

"158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor-General relying on a decision of this Court in Deonandan Mishra v. State of Bihar, to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor-General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus:

9.......But in a case like this where the various links as started above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, . . . such absence of explanation or false explanation would itself be an additional link which completes the chain."

159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied :

(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance points to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation.

160. If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal case where this Court observed thus:

30........Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused." (emphasis added)"

23. PW-1 Pranjal Tiwari has stated in his evidence that on the date of the incident at about 9:00 a.m., he heard the noise in the vicinity and when he went to the spot, he saw a person in an injured condition in the Santro car, and he received a gunshot injury. In the instance of the police, he took the injured to hospital by driving the vehicle. The injured person was in an unconscious condition, and he had no conversation with him. He lodged the 23 report to the police in the hospital, which is Ex.-P/1. On some part of his evidence, he was declared hostile. He denied the seizure of empty cartridges, Santro car, fired bullet, blood stains, pieces of the seat cover of the car, Hawai chappal, mobile phones and all other seizures. In cross-examination, he stated that when he arrived on the spot, the police officers were already there and at their instance he signed the documents.

24. PW-2 Daulal Yadav is also a resident of the vicinity. When he heard the noise about the incident, he went on the spot and saw the injured in his car. Along with Pranjal Tiwari, PW-1, he took the injured to the hospital. He too has denied the various seizures made in his presence and has turned hostile.

25. PW-3 Smt. Mukesh Dagar is the wife of the deceased. She stated in her evidence that her husband was having a transport business and usually resided in Delhi. There was a dispute with respect to the outstanding amount of Rs. 2 lakhs against the accused Preetam and Rs. 01 crore against the accused Satender, and for that reason, they used a contract killer. On the date of the incident, at about 08:00 a.m., her husband had gone to the school to drop her son there, and while coming back, he was murdered by a gunshot. She did not know who had murdered her husband. She raised suspicion about Satender and Preetam. She too has been declared hostile, and in cross- examination by prosecution, she admitted giving her police statement Ex.-P/12. In cross-examination, she denied giving the 24 statement Ex.-P/12 to the police, and she also stated that she did not know the accused Viraiyya Sheikhar. She also denied that Viraiyya Sheikhar was a partner of her husband in sandalwood smuggling, and to avoid his liability to give the share of profit to her husband, Viraiyya Sheikhar killed her husband. In her evidence, except for the suspicion over the accused Satender and Preetam, nothing substantial could be extracted by the prosecution. Even though there is no sufficient basis for her suspicion, except for the self-serving statement of outstanding dues.

26. PW-4 Veersingh is the witness to the seizure memo Ex.-P/14, 15 and 16, memorandum statement Ex.-P/17, 18, but he turned hostile and did not support the prosecution's case.

27. PW-5 Mohammed Ismail Khan is the ASI, Police, who is the witness of seizure memo Ex.-P/20 by which the Station House Officer has seized one passport, one air ticket, ID card and two mobile phones from the accused Viraiyya Sheikhar on 13.07.2011 at Chennai airport.

28. PW-6 Devesh Shriwas is the witness to the test identification parade Ex.-P/21, but he denied the same. He too, has turned hostile and not supported the prosecution's case. He also denied the identification of the accused persons and stated that he signed the documents due to fear of the police.

29. PW-7 Ravinder is the business partner of the deceased Rajesh Dagar at Delhi. He stated that the deceased Rajesh Dagar was his cousin brother, and they started a business in 1997. Their business was spread across Manipur, Imphal and Himachal Pradesh mostly. In the year 2006, he started his transportation business at Raipur, and Rajesh also started his business. Rajesh has advanced a loan of Rs. 2 lakhs to his cousin, Preetam Singh, and on the request of Satender @ Tinu and Preetam, they joined the business of Rajesh. When the settlement of accounts was done, the amount of Rs. 96 lakhs came outstanding against Satender and Rs. 2 lakhs against Preetam. When Rajesh demanded his money from them, Preetam lodged a report through his wife at Dwarika Sector 3 police, New Delhi, for outraging her modesty. Satender also refused to give him the money, and then a dispute started between them. Thereafter, they prepared a plan to murder the deceased Rajesh and hatched a conspiracy in the office of Dhanna @ Dharmendra, and subsequently, they murdered Rajesh. At this stage, this witness has been declared hostile, and he resiles from his police statement Ex.-P/23. In cross-examination, he admitted that he was having a very good relationship with the deceased Rajesh. He did not know about Viraiyya Sheikhar. His evidence is contradictory with his 161 Cr.P.C. statement, and there is material omission and contradictions with the same, which makes his evidence unreliable.

30. PW-8 Nishant Dagar is the son of the deceased. He stated in his evidence that on the date of the incident, his father had gone to school to drop off his younger brother, and while returning from the school, on the way, someone had murdered him by gunshot. His father was having a dispute with Satender and Bhupendra with respect to the outstanding amount, and his dispute was also with Preetam. He too, has been declared hostile, and when he was cross-examined by the prosecution, he admitted giving his police statement Ex.-P/24 and P/25. In cross-examination, he stated that on the date of the incident itself, he made his police statement and thereafter, he had never made any statement to the police. Except for the transporting business of his father, he did not know about any other business. Since he was not present on the spot, he did not know anything about the incident. When he was further cross-examined on 17.11.2015, he stated that he was stating for the first time before the Court that the accused persons had deposited the amount in the bank. He has no documents about the business of his father and the accused persons, and there is no document about any outstanding amount against the accused persons. On the date of the incident, he was at Raipur, and the accused persons were at Delhi. He came to know that the accused persons had gone to the bank to deposit the amount from the CCTV footage of the bank. His father had disclosed the dispute with the accused persons. He did not know as to whether the expenses of shifting the dead 27 body of his father from Raipur to Delhi by aeroplane were borne by Tinu @ Satender. He did not know about the arrest of other accused persons in the offence. His father was also involved in the business of sandalwood. He admitted that an FIR was registered against his father for smuggling of sandalwood, and to avoid his arrest in the said FIR, he was absconding. He also admitted that in Delhi, there was litigation going on against his father, and he also went to jail. He did not know that the business partner of his father, namely, Ravindra, was also wanted by Raipur and Haryana police, but his father was wanted by the police. He also admitted that in Delhi, his father was having enmity with various persons and therefore, he came to Raipur. From the evidence of this witness, though nothing substantive has come against the accused persons about their involvement in the offence or any conspiracy, it has come that there are various FIRs against the deceased at Raipur and Delhi and having enmity with various persons, and he hid himself and was residing at Raipur.

31. PW-9 Lallu @ Baratu is the witness to the memorandum of Viraiyya Sheikhar Ex-P/17, seizure of his mobile phone Ex.-P/18 and seizure memo Ex.-P/26 and P/27, but he turned hostile and did not support the prosecution's case.

32. PW-10 Shribhagwan is the brother-in-law of the deceased. He stated in his evidence that the deceased was having transport business and due to a family dispute, he came to Raipur 10 years 28 back. Bhupendra and Satender were not happy with his flourishing business. In the year 2005, both these brothers threatened the deceased that they would kill him. Bhupendra and Satender raised a quarrel at Raipur with the deceased, and the criminal case is still pending. At Delhi, the cousin brother of the deceased Rajesh, namely, Preetam, lodged a false report at Delhi that the deceased Rajesh had outraged the modesty of his wife. After this incident, Rajesh came to Raipur and was ultimately murdered by hiring the killers. He also stated about the pressure upon the wife of the deceased by the sister of Rajesh, namely, Sudesh @ Guddi. At this stage, he has also been declared hostile, and he contradicted his police statement, Ex.- P/28. In cross-examination, he stated that after the incident, he came to Raipur on 23rd February. After 10 days of coming to Raipur, his police statement was recorded. He did not know as to whether his brother-in-law was engaged in the smuggling of sandalwood, nor whether any offence had been registered by the Raipur police. He admitted that the accused persons Viraiyya Sheikhar, Jitendra, Ranvir and Kamal were having no enmity with his brother-in-law. He did not know the accused Viraiyya Sheikhar. The sister of the deceased Rajesh informed him by telephone that the accused Satender and Bhupendra had gone to Raipur to kill the deceased and to save him if he can.

33. PW-11 Mohammed Jafar is the landlord of the house where the accused Ranvir was his tenant. He stated that he saw the 29 deceased Rajesh and accused Kamal together in the house, and he gave the mobile numbers of the accused Ranvir, Kamal and the deceased Rajesh. In the instance of the police, he made a call to the accused Ranvir, and then he informed him that he would come after 2-4 days. The bank account passbook of SBI, which is in the name of Ranvir and a copy of the sale deed were given to the police by him, and a seizure memo Ex.-P/29 was prepared. He also participated in the TIP and identified the accused Jitendra and Kamal. He stated that before participating in TIP, the crime branch police showed him the photographs of the accused persons and asked him to identify them. Since Kamal was his tenant and therefore, he identified him, and on the instance of Yamini madam, he identified the other accused persons and the TIP memo Ex.-P/21 was prepared. The cross- examination of this witness relates to the tenancy of the accused Kamal and Ranvir in his house to connect the accused persons with the conspiracy; however, his evidence is not sufficient to draw any inference that the accused persons conspired together to commit the murder of the deceased.

34. PW-16 Doctor Shiv Narayan Manjhi conducted the postmortem of the dead body of the deceased and proved the postmortem report Ex.-P/34 and short postmortem report Ex.-P/35 by which he opined that the deceased died due to gunshot injury. The homicidal death of the deceased by gunshot injury have also not been denied by the accused persons.

35. PW-18 Amarchand Bohra @ Kaka is the storekeeper at Singhaniya Buildcon colony, who is stated to be a middleman in the rental house of the witness, Mohammed Jafar; however, he turned hostile and did not support the prosecution's case.

36. PW-22 Smt. Yamini Pandey is the Tahsildar, Nazul Raipur, who conducted the test identification parade of the accused Jitendrar @ Monu Luthra and Kamal @ Kaushal. She stated in her evidence that the witnesses have duly identified these two accused persons, and TIP memo Ex.-P/21 was prepared. In cross-examination, she admitted that in the document Ex.-P/21, the physical appearance of the accused persons and the persons who mixed with them have not been mentioned. She mixed six people into two accused persons. She orally asked her employee to call the witnesses. There is no mention of any sequence of the persons in which they were standing at the time of TIP. When she reached in the office for TIP, the witnesses were already present, and they were called by the police.

37. PW-29 Kishore Soni is the Assistant Sub-Inspector of Police. On 24.01.2011, two-three person rushed to the police station by saying that an incident of gunshot fire had occurred, and the injured was fighting for his life, and the assailants fled away by motorcycle. He immediately rushed to the spot and found the injured in the car. He immediately sent the injured to the hospital and reported the incident to the senior officer. He recorded dehati nalisi in the hospital on the instance of Pranjal Tiwari. The 31 deceased disclosed his name as Rajesh. He obtained the physical condition of the deceased from the doctor and made a request for the recording of the dying declaration to the SDM, which is Ex.-P/15. Thereafter, Pulak Bhattacharya, Executive Magistrate, was deputed for recording the dying declaration of the deceased, which is Ex.-P/51. Nothing is found against the accused in the evidence of this witness.

38. PW-30 Dipanshu Dagar is the son of the deceased, to whom the deceased had gone to school to drop him off. He stated in his evidence that before the incident, two persons were made reiki and enquired about his father of his routine. He identified the accused Jitendra @ Monu, who enquired about his father. He also proved his signature over the TIP memo Ex.-P/21. In cross- examination, he stated that he had gone to the police station for TIP, where he was shown a video recording in which the accused persons were seen. He admitted that the persons whom he saw in the video recording have been identified by him in TIP.

39. PW-36 Rajendra Singh Kanwar is the Investigating Officer, who conducted part of the investigation. He stated that he arrested the accused persons Ranvir @ Lala, Jitendra @ Monu Luthra, Kamal @ Kaushal and recorded their memorandum statement Ex.-P/54, P/55 and P/56. From the accused Jitendra @ Monu, one pistol has been seized from shrubs near the railway station, Kosanala, Supela, Bhilai Nagar. From the house of the accused Kamal @ Kaushal at Delhi, one key of the rented house of the accused at 32 Raipur and a food junction card of RK Mall have been seized from him. He also proved the various seizures from the accused persons. In cross-examination, he stated that the police team had gone to Delhi and conducted the investigation there. He proved the procedural aspect of the investigation that he conducted on his own part.

40. PW-37 Hariom is the ASI, Police of the Special Team Crime Branch, Delhi. He is also the witness to the part of the investigation that he conducted on his own. He recorded the confessional statement of the accused Ranvir Singh @ Lala, which is Ex.-P/87 and P/88. In cross-examination, he admitted that the source of information about the involvement of the accused Ranvir @ Lala has not been mentioned in the said statement Ex.-P/87. He has not brought the charge sheet with him. At the time of recording the confessional statement, no independent witnesses were present. Immediately after the confessional statement of the accused, he was not produced before the Magistrate, but he was produced within 24 hours.

41. PW-38 Raju Nihalani is the SDO, Forest and the witness with respect to the recording of the statement of Viraiyya Sheikhar from whom the sandalwood was seized, and he recorded his statement, which is Ex.-P/61. In cross-examination, he admitted that in the statement there is no mention of any case number, date or year of its recording.

42. PW-40 Bhupendra Kumar is the younger brother of the deceased Rajesh Dagar. On 24.01.2011 at about 08:30 - 09:00 a.m., he received a mobile call and was informed about the incident. Thereafter, he came to Raipur by train, and they took the dead body of the deceased to Delhi by aeroplane. He informed the Raipur police about the illegal business of sandalwood of his brother Rajesh and criminal cases against him. The evidence of this witness reveals that the deceased Rajesh was engaged in the illegal business of smuggling sandalwood and had criminal antecedents at various places. In cross-examination, he also disclosed that Smt. Mukesh Dagar lodged a report against him also for the offence under Section 406 of the IPC. He did not know who killed his brother. He raised suspicion over Ravinder that he had committed the murder.

43. PW-41 Doctor Narendra Narsingh, who was the Assistant Professor at Mekahara hospital, Raipur, has stated that he gave his opinion that the deceased can give his statement at the moment, which is Ex.-P/83. In cross-examination, he admitted that at the time of recording the statement of the deceased, he was not present there. He has not given any certificate about the mental and physical fitness of the deceased to give any statement. In further cross-examination, he only stated that the injured person could give his statement. He admitted that the injured was able to speak only a few words, which was at the 34 time when the police asked about his condition, and his condition was gradually deteriorating.

44. PW-42 Pulak Bhattacharya is the Additional Tahsildar who recorded the dying declaration Ex.-P/85 in which the deceased stated that "eq>s NksVk HkkbZ us ejok;k gS " and "Vhuw us ejok;k gS". In cross- examination, he admitted that he had not asked the name of the injured. As and when he entered the room, the injured started speaking, and he started writing. At the time of recording his statement, the doctor and office staff were also present. In further cross-examination, he stated that in the trauma centre where the deceased was admitted, the deceased was being given artificial respiration through a mask. He himself has not given his introduction that he came there for the recording of his statement. He admitted that in the dying declaration Ex.-P/85, there is no signature of any doctor. When he asked the deceased how the incident occurred, but he kept silent, and immediately thereafter, he went unconscious. He further admitted that before recording the dying declaration, he had not obtained certification from the doctor about his mental and physical condition. He also admitted that he has not asked the doctor about the mental condition of the injured. The injured person disclosed the incident, and he had not disclosed it at the time he asked him.

45. PW-45 Ashok Kumar Sharma, who is the Station House Officer, Police Station Amanaka, stated about the investigation that he conducted in the case. In his cross-examination, he stated about 35 the criminal antecedents against the deceased Rajesh and the offence registered at Delhi, Haryana, Himachal Pradesh, Manipur, and West Bengal with respect to smuggling of red sandal wood (rakt-Chandan). He also admitted that the deceased was involved in various illegal activities and was wanted by various State police, and he hid himself from the police. He further admitted that there is no amount seized in the present case with respect to contract killing. There is no evidence on the record that Ranvir was well acquainted with Jitendra @ Kamal. He further stated that the call detail Ex.-P/100 and P/101 was obtained from the Crime Branch, and he could not tell as to from where they procured the said document.

46. From the aforesaid evidence, there is no clear or clinching evidence with respect to the business dispute between the deceased Rajesh and the accused Satender @ Tinu and Preetam. Except for the self-serving statement of the family member of the deceased, no other conclusive evidence was produced by the prosecution that the accused persons had any motive to commit the murder of the deceased or that they were having a business dispute with him. There is no eyewitness to the incident, and the case of the prosecution rests on circumstantial evidence. One of the circumstances under which the deceased made a dying declaration was also full of suspicion. The dying declaration Ex.-P/85 recorded by Pulak Bhattacharya PW-42 is appears to be suspicious for the reason that from the evidence of 36 Pranjal Tiwari PW-1, Doctor A.K. Sharma PW-20, Doctor Rajendra Agrawal PW-21, Doctor Manju Singh PW-35 and Doctor Narendra Narsingh PW-41 the physical and mental condition of the deceased was deteriorating and almost in unconscious condition whereas, PW-42 Pulak Bhattacharya who allegedly recorded his dying declaration stated that as and when he entered into room the injured started giving statement that Tinu has killed him. In such a condition of his treatment, as reflected from the evidence of the doctors, it cannot be said that the injured can give any statement as has been recorded by Pulak Bhattacharya, PW-42. Further, from the evidence of Pulak Bhattacharya, PW-42, the presence of a doctor is there at the time of recording his statement, whereas doctor Narendra Narsingh, PW-41, clearly denied his presence at the time of recording the statement of the deceased. Obtaining the mental fitness certificate from the doctor is also suspicious, as the doctor has opined that the patient can give a statement at the moment, which was given at 10:15 a.m. on 24.01.2011, and his condition was deteriorating. After 10 minutes of the said opinion, his statement is said to have been recorded, but in view of his condition, it cannot be said that the deceased gave his dying declaration to the witness PW-42. The recording of the dying declaration Ex.-P/85 is not proved by reliable evidence about his physical condition to give the statement.

47. So far as the Test Identification Parade is concerned, it is with respect to two accused persons, Jitendra @ Monu and Kamal @ Kaushal, but there is no evidence that they are also involved in a conspiracy to commit the murder of the deceased. There is no connecting evidence or complete chain of circumstances that the accused persons conspired to commit the murder of the deceased, and in the execution of their conspiracy, they did the same.

48. In the case of Digambar Vaishnav and another Vs. State of Chhattisgarh, (2019) 4 SCC 522, the Hon'ble Supreme Court has laid down the law that the burden to prove its case beyond reasonable doubt is upon the prosecution and where two views are possible arising based on the same evidence, the view which is favourable to the accused should be taken into consideration and the accused should be given benefit of doubt. In para 19, it has been held that:-

"19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence [See Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808].

49. The learned trial Court while appreciating the evidence produced by the prosecution found that there is no cogent and clinching evidence about conspiracy between the accused persons to 38 commit murder of the deceased Rajesh, absence of any sufficient evidence with regard to motive to commit murder and further, there is no evidence of involvement of the accused persons in the offence in question and further that the deceased was having numerous criminal antecedents and enmity with various persons, by giving benefit of doubt, acquitted the accused persons from the alleged offences. It is also to be noted here that when the two accused persons, Satender @ Tinu and Preetam, were arrested, and they were put to trial, the wife of the deceased PW- 3 has not produced herself for her re-examination/cross- examination by these two accused persons and since the witness PW-3 Smt. Mukesh Dagar remain absent for her cross- examination; her evidence, which has been recorded earlier with respect to other accused persons, cannot be considered against the accused persons Satender @ Tinu and Preetam.

50. The deposition of a witness recorded in the absence of an accused cannot ordinarily be read in evidence against such accused unless he had an opportunity to cross-examine the witness. The right of cross-examination being a valuable right of defence, evidence recorded against a co-accused cannot automatically be used against a subsequently arrested accused unless the requirements of Section 299 CrPC are strictly complied with. In the case of Jayendra Vishnu Thakur v. State of Maharashtra and Another, 2009 (7) SCC 104, the Hon'ble Supreme Court has held that:-

"18. The right of an accused to watch the prosecution witnesses deposing before a court of law indisputably is a valuable right. The Sixth Amendment of the United States Constitution explicitly provides therefor, which reads as under:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence."

24. A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination-in-chief, cross-examination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to cross- examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. If an exception is to be carved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication. There are statutes like the Extradition Act, 1962 which excludes taking of evidence vis-à-vis opinion. (See Sarabjit Rick Singh v. Union of India [(2008) 2 SCC 417 : (2008) 1 SCC (Cri) 449]).

51. There is another aspect of the matter which cannot be lost sight of. No charge-sheet was filed against the appellant. In the charge- sheet dated 27-8-1993, rightly or wrongly, he had been shown as absconding. In the absence of any charge-sheet no cognizance could have been taken against him in the sense that he could not have been directed to stand trial. It is not the contention of the respondents that the learned Magistrate despite the said charge-sheet dated 27-8-1993 had taken cognizance against him. Undoubtedly in the order dated 30-12-1993, while framing charges his name had been shown as an absconding accused. He was, therefore, not before the court. He could not have taken part in the trial. He was arrested formally only on 4-8-1993 and charges were framed against him only on 15-11-2003. 40

52. We have noticed hereinbefore the respective dates of death of the witnesses concerned. All the witnesses expired prior thereto. The question of his exercising his right to cross-examine the said witnesses would have arisen only after the said date and not prior thereto. It is, in our opinion, incorrect to contend that such a right could be exercised at any date prior thereto. Such a question could have arisen provided he was facing trial. In that view of the matter we are also of the opinion that it was not a case wherein sub-section (5) of Section 14 of the Act would have been attracted since the order of the TADA Court specifically invoked Section 299 of the Code.

57. Mr Naphade would submit that the appellant did not suffer any prejudice. We do not agree. Infringement of such a valuable right itself causes prejudice. In S.L. Kapoor v. Jagmohan [(1980) 4 SCC 379] this Court clearly held: (SCC p. 395, para 24) "24. .....In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non- observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced."

51. The law is well settled in the matter of appeal against acquittal.

The Hon'ble Supreme Court in the matter of Jafarudheen and Ors Vs. State of Kerala, (2022) 8 SCC 440, has considered the scope of interference in appeal against acquittal in judgment at Para 25 which reads as under;

"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C., the appellate court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court 41 has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that ensures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

52. Recently, applying the law governing the scope of interference in an appeal against acquittal, the Hon'ble Supreme Court in the case of State of Rajasthan Vs. Kistoora Ram, 2022 SCC OnLine SC 984, has held as follows:-

"8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all."

53. The Trial Court has elaborately discussed the evidence led by the prosecution and after analyzing the entire evidence led by the prosecution, acquitted the accused persons after giving them the benefit of doubt. Therefore, the argument of learned counsel for the appellant in both these appeals and the statements made by the prosecution witnesses in their court evidence makes the prosecution case suspicious and is not credible.

54. After considering the material available on record as well as the elaborate judgments passed by the Court below and being very 42 much conscious of the existing legal position as held in case of Jafarudheen (supra) and Kistoora Ram (supra) that in an appeal against acquittal, if two views are possible on the basis by the evidence laid by the prosecution and the trial court taking one view favoured the accused, reversion on the finding of acquittal by the appellate court taking the other possible view into consideration, is not permissible in law.

55. We are therefore of the considered opinion that the judgments impugned, acquitting the accused persons/respondents are just and proper and does not call for any interference. Accordingly both the acquittal appeals filed by the appellant against the acquittal of accused persons/respondents from the aforesaid offences are hereby dismissed.

                             Sd/-                                Sd/-

                (Ravindra Kumar Agrawal)                    (Ramesh Sinha)
                         Judge                               Chief Justice



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