Uttarakhand High Court
Yunus vs State Of Uttarakhand on 14 February, 2025
Author: Ravindra Maithani
Bench: Ravindra Maithani, Alok Kumar Verma
Reserved on: 03.01.2025
Delivered on: 14.02.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 367 of 2012
Yunus ..........Appellant
Vs.
State of Uttarakhand ........ Respondent
Present : Mr. Ajay Veer Pundir, Advocate for the appellant.
Mr. S.S. Chauhan, Deputy Advocate General for the State.
With
Criminal Appeal No. 371 of 2012
Bijendra ..........Appellant
Vs.
State of Uttarakhand ........ Respondent
Present : Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Hemant
Singh Mehra with Mr. K.G. Chhokar, Advocates for the appellant.
Mr. S.S. Chauhan, Deputy Advocate General for the State.
With
Criminal Appeal No. 147 of 2013
Nitin Rana ..........Appellant
Vs.
State of Uttarakhand and another .......... Respondents
Present : Mr. Ramji Srivastava, Advocate for the appellant.
Mr. S.S. Chauhan, Deputy Advocate General for the State.
Mr. S.R.S. Gill, Advocate for respondent no.2.
JUDGMENT
Hon'ble Ravindra Maithani, J.
Hon'ble Alok Kumar Verma, J.
Per: Hon'ble Ravindra Maithani, J.
1. Since all these appeals arise from a common judgment and order, they are being heard and decided together.
2. All these appeals have been preferred against the judgment and order dated 12.12.2012, passed in Sessions Trial No.169 of 2004, State vs. Yunus and Sessions Trial No.498 of 2004, 2 State vs. Brijendra and another, by the court of Fifth Additional Sessions Judge, Haridwar. By the impugned judgment and order, the appellants Yunus and Bijendra have been convicted under Section 302 read with Section 34 IPC and sentenced to life imprisonment with a fine of `5,000/- each. Appellant Bijendra has further been convicted under Sections 506(2) IPC and sentenced to one year rigorous imprisonment with a fine of `1,000/-. One of the accused in the case, Sanjay Pal has been acquitted.
3. Criminal Appeal No.367 of 2012 has been preferred by the appellant Yunus, Criminal Appeal No.371 of 2012 has been preferred by the appellant Bijendra against their conviction and sentence and Criminal Appeal No.147 of 2013 has been preferred by the first informant against the acquittal of respondent no.2, Sanjay Pal.
4. Shorn of unnecessary details the prosecution case briefly stated as per FIR is a follows:-
(i) On 04.03.2003, informant Nitin Rana (PW1) was standing just below his house at 10:30 in the night along with two of his uncles namely, Harendra Singh and Sudhir, who had visited them on that date from Bulandshahr. At that time, the deceased Rajpal Singh arrived in his Indica Car bearing Registration No.DL8C-F-6768. He stopped the car. As soon as he alighted from the car, the FIR states that a white colour Indica Car bearing Registration No.UA08 4700 followed him and appellant Yunus and two other unknown persons de-boarded from that car and 3 opened fire at Rajpal Singh, due to which, he fell on the ground. The appellant Yunus and his associates boarded the same car, in which, they had come and ran away towards Block. The informant with the help of Harendra Singh (PW10) and Sudhir took the deceased to the Pal Nursing Home, where police had also arrived. Since, the incident had legal implications, as per advise of the doctor, according to the FIR, the informant took the deceased to Civil Hospital Roorkee, where he was declared brought dead. The dead body was still in the mortuary in the civil hospital when the FIR was lodged. The FIR further records the motive, according to it, the deceased had got some construction carried out through the appellant Yunus. There was a dispute with regard to the accounts. The appellant Yunus had on multiple occasions, telephonically threatened the deceased to his life and on many occasions, the appellant Bijendra had also while taking side of the appellant Yunus, threatened the deceased.
(ii) According to the FIR, on 04.03.2003 in the evening, appellant Bijendra had threatened the deceased telephonically when he was in Kankhal, sitting with Onkar Singh, Arun Bhatnagar and Bhanwar Singh.
Based on this report, chik FIR (Ex. A-11) was recorded and a case under Sections 302, 120-B IPC was lodged against the appellants Yunus, Bijendra and two others. The extracts of General Diary Entry is Ex. A-8. The inquest of the deceased was conducted on 05.03.2003 (Ex. A-4) and the dead body was sent for 4 postmortem. Postmortem of the deceased was conducted on 05.03.2003 by PW6 Dr. K.C. Pant. The Investigating Officer ("IO") prepared a site plan of the incident (Ex. A-9) and on 05.03.2003 itself, took into possession a cartridge case of .315 Bore. He prepared a recovery memo (Ex. A-10). The clothes and other articles were sent for forensic examination. Forensic Science Laboratory, Agra, Uttar Pradesh ("FSL") reported that the cartridge case was fired from the .315 rifle, which was sent for examination. This report is Ex. A-14. There is another FSL Report (Ex. A-15) with regard to the clothes, etc. of the deceased.
(iii) In the instant case, by the order of the court, cartridge case and .315 rifle were further sent for examination to the Central Forensic Science Laboratory, Chandigarh. This report is Ex. A-18, which reveals that the cartridge case was not fired through .315 rifle, that was sent for examination. Its genuineness has been admitted by the defence.
5. It may be noted that just opposite to the place of incident, there was a police picket post. PW9 Sub-Inspector Udai Veer Singh Sirohi with Police Constables was on duty at the picket post at the time of incident. He also reached at the place of incident and immediately informed Police Control Room about the incident. The document of Police Control Room is Ex. A-3. It records at 10:33 PM that, "at Ramnagar Chauraha, the occupants of a Maruti car white colour No. UA08 4700 fired at some person". This is Ex. B-3. The Police Control 5 Room was again informed at 10:50 PM on the same date that the person, who was shot, has been killed and he was Rajpal Singh. This extract of Police Control Room record is Ex. B-4. They both have been proved by PW12 Nanke Singh Jainwar, who was Inspector CBCID at the relevant time and who conducted the final investigation and submitted charge-sheets.
6. After investigation, a separate charge-sheet has been submitted against the appellant Yunus, which is Ex. A-13 and the charge-sheet against the appellants Bijendra and Sandeep alias Sanjeev and Sanjay Pal is Ex. A-14.
7. On 14.06.2004, charge under Section 302 read with Section 34 and 506 IPC was framed against the appellant Yunus and on 09.08.2005, charge under Section 302 read with Section 34 and Section 506 IPC was framed against the appellant Bijendra and Sandeep alias Sanjeev and Sanjay Pal.
8. During trial of the case Sandeep alias Sanjeev had died, therefore proceedings have been abated against him.
9. In order to prove its case, the prosecution has examined 13 witnesses namely, PW1 Nitin Rana, PW2 Onkar Singh, PW3 Smt. Pushpa Devi, PW4 Jitendra Singh, PW5 Dr. Ajay Agarwal, PW6 Dr. K.C. Pant, PW7 Mahendra Singh Negi, PW8 Ajay Chauhan, PW9 SI Udai Veer Singh Sirohi, PW10 Harendra Singh, PW11 Constable Naresh Kumar, PW12 Nanthey Singh Jainwar and PW13 Constable Pradeep Maithani.
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10. The appellants were examined under Section 313 of the Code of Criminal Procedure, 1973 ("the Code"). According to them, they have been falsely implicated. All the documents were forged to implicate them. By the impugned judgment and order, the appellants Yunus and Bijendra have been convicted and sentenced, as stated hereinbefore; and Sanjay Pal has been acquitted. Aggrieved by their conviction, the appellants Yunus and Bijendra have preferred appeal against their conviction and sentence, whereas PW1 Nitin Rana, who is the informant, had preferred the appeal against the acquittal of Sanjay Pal.
11. Heard learned counsel for the parties and perused the record.
12. Learned Senior Counsel appearing for the appellant Bijendra would submit that it is an entirely false case; the eye- witnesses are not reliable; in fact, they had not seen any incident. He had raised the following points in his submission:-
(i) No role of firing has been assigned to the appellant Bijendra in the FIR.
(ii) In the FIR, initially the car number was recorded as UA08 7900, but subsequently, it was changed.
(iii) Had PW1 Nitin Rana, PW3 Smt. Pushpa Devi and PW10 Harendra Singh witnessed the incident and PW1 Nitin Rana and PW10 Harendra Singh taken the deceased in an injured condition to the hospital in the car, the clothes of PW1 Nitin Rana and PW10 Harendra Singh would have stained in blood and the car would have also witnessed blood spot. It is argued that neither in the clothes of the witnesses nor blood was detected from the car, in which, the deceased was allegedly taken to hospital.7
(iv) The facts and circumstances of the case, makes the presence of PW1 Nitin Rana, PW3 Smt. Pushpa Devi and PW10 Harendra Singh much doubtful at the place of alleged incident.
(v) The presence of PW3 Smt. Pushpa Devi is not recorded in the FIR. It is serious omission, which is material to the extent that it doubts the prosecution case.
(vi) According to the witnesses, PW3 Smt. Pushpa Devi and PW10 Harendra Singh, they knew all the assailants. If it is so, why the FIR has not been named against all the four persons and why their role has not been assigned in the FIR?
(vii) The statement of PW8 Ajay Chauhan is also doubtful.
According to him, he reached at Pal Nursing Home, whereas he admits that he left the police station after the report was lodged. It is argued that in the instant case, the FIR was lodged after the death of the deceased, when his dead body was kept in the mortuary in Civil Hospital Roorkee. In such situation, PW8 Ajay Chauhan had no occasion to visit Pal Nursing Home after lodging of the FIR.
(viii) According to PW5 Dr. Ajay Agarwal, the dead body of deceased was brought to the Civil Hospital Roorkee at 11:20 PM on 04.03.2003 by PW8 Ajay Chauhan.
(ix) Even PW9 Udai Veer Singh Sirohi also says that PW8 Ajay Chauhan had reached at the place of incident.
(x) Based on these assertions, it is argued that had the family members of the deceased been on the spot, they would have immediately taken the deceased to the hospital and in such situation, the police would have no opportunity to take the deceased to the hospital, as stated by PW5 Dr. Ajay Agarwal.
(xi) All the eye-witnesses namely, PW1 Nitin Rana, PW3 Smt. Pushpa Devi and PW10 Harendra Singh are chance witnesses. PW1 Nitin Rana was studying in Dehradun. PW3 Smt. Pushpa Devi is a divorced wife of the deceased, who was staying in her village and PW10 Harendra Singh was admittedly, staying in his village and had visited Roorkee on the date of incident.
(xii) The FIR itself is much doubtful. It writes a story without any substantiated facts; it speaks of a threat extended by the appellant Bijendra to the deceased on the evening of 04.03.2003 in the presence of Onkar Singh, Arun Bhatnagar 8 and Bhanwar Singh, but it is not clear even after trial, as to how this has been recorded in the FIR because PW2 Onkar Singh has not stated that he told it to PW1 Nitin Rana that any threat was extended telephonically to the deceased on that evening.
(xiii) It is argued that, in fact, the FIR is ante time. It was lodged after much deliberation so as to cook up a story.
(xiv) Some signed statements were given by the witnesses to the IO.
Those signed statements may still be treated as former statements. In support of his contention, learned Senior Counsel has placed reliance on the principle of law as laid down in the case of State of U.P. vs. M.K. Anthony, (1985)1 SCC 505 and State of Rajasthan vs. Teja Ram and others, (1999)3 SCC 507
(xv) In the case of M.K. Anthony (supra), Hon'ble Supreme Court inter alia held that merely a signed statement was given to the IO by the witness, his statement in the court, may not be discarded. The Hon'ble Supreme Court observed as follows:-
"........................If the Investigating Officer did obtain the signature of Nair an Intimate friend of the respondent speaking about the confession of the respondent, it may be that it may be a violation of Section 162 of the Code of Criminal Procedure but no attempt was made to verify this fact by referring to the case diary. The court is always entitled to look into the case diary. Assuming that Nair's admission that his signature was obtained on the statement recorded by the investigating officer on March 1, 1973, is correct, it does not render his evidence inadmissible. It merely puts the court on caution and may necessitate in-depth scrutiny of the evidence. But the evidence on this account cannot be rejected outright."
(xvi) Similar, proposition has been laid down in the case of Teja Ram (supra).
13. Learned counsel appearing for the appellant Yunus has adopted the arguments as advanced on behalf of the appellant Bijendra. In addition to it, it is argued that, in fact, appellant Yunus has raised certain construction for deceased Rajpal Singh and the 9 deceased had to pay `8 Lakhs to him. Therefore, in order to avoid payment to the appellant Yunus, he has been falsely implicated.
14. Learned counsel for the appellant, Nitin Rana, the informant, who is PW1, would submit that prosecution has been able to prove the case beyond reasonable doubt against the appellants Yunus, Bijendra and Sanjay Pal. It is argued that the presence of PW9 Udai Veer Singh Sirohi at the spot is not doubtful. He immediately informed the Police Control Room about the incident.
15. Learned counsel for the appellant Nitin Rana (PW1) submits that in the evening of 04.03.2003, appellant Bijendra had admittedly made a telephonic call to the deceased, as confirmed by the appellant Bijendra in his statement given under Section 313 of the Code. It is argued that it supports the prosecution case. He would submit that PW1 Nitin Rana, PW3 Smt. Pushpa Devi and PW10 Harendra Singh had witnessed the crime having been committed by the appellants Yunus, Bijendra and others. PW9 Udai Veer Singh Sirohi had reached at the spot and informed the Police Control Room immediately. PW8 Ajay Chauhan initially conducted the investigation. He had also reached at Pal Nursing Home from where he took the deceased to hospital, thereafter he returned to the police station where the report was lodged. Learned counsel would submit that there was a motive to kill the deceased; there is eye-witness account of it; medical evidence supports the prosecution case. Therefore, the appeals preferred by the appellants Yunus and Bijendra deserve to be dismissed while the appeal 10 preferred by the appellant Nitin Rana (PW1) deserves to be allowed and the respondent no.2, Sanjay Pal in that appeal is liable to be convicted of the charges framed against him.
16. Learned counsel for the respondent no.2 Sanjay Pal submits that the prosecution has utterly failed to prove the case against Sanjay Pal, therefore, he has rightly been acquitted and the appeal preferred by Nitin Rana is liable to be dismissed.
17. Learned State counsel would submit that no interference is warranted in the impugned judgment and order. He would submit that the conviction of appellants Yunus and Bijendra and acquittal of Sanjay Pal is in accordance with law based on the evidence that is available. Therefore, all the appeals deserve to be dismissed.
18. Before the arguments are appreciated it would be apt to examine as to what the witnesses have stated. According to the prosecution, there are three eye-witnesses. They are PW1 Nitin Rana, PW3 Smt. Pushpa Devi and PW10 Harendra Singh.
19. PW1 Nitin Rana is the informant. According to him, his father was raising a complex in Kankhal. He was present there on 04.03.2003 at 09:00 PM. He telephoned his wife at his residence. On that date the uncles of this witness namely PW10 Harendra Singh and Sudhir had also come. After receiving the phone call, according to this witness, his mother PW3 Smt. Pushpa Devi went downstairs and after a while his uncles PW10 Harendra Singh and Sudhir also went downstairs. When they did not return, this witness also followed them. He found that his mother was quite tensed. He inquired about it. She revealed that the deceased had telephoned her and has been asking about Bijendra, as to whether 11 he is waiting for him in his house? According to PW1 Nitin Rana, his mother has also told him at that time that Bijendra had threatened the deceased on that date. At about 10:30 PM, the deceased came in front of his house. It may be noted here that the house was on the first floor rear side and there was a gallery for proceeding to that house. It is explicit from the site plan, which is Ex. A-9.
20. PW1 Nitin Rana says that as soon as his father, the deceased arrived, the appellant Yunus and two other persons alighted from a vehicle bearing Registration No.UA08 4700. One of them had a rifle and two had country made pistols and they fired at deceased Rajpal Singh and ran away. One another person also opened fire. PW1 Nitin Rana has stated that the appellant Bijendra Singh did open fire with rifle and appellant Yunus fired through country made pistol. He has also stated that Sandeep alias Sanjeev and Sanjay Pal had also opened fire. The deceased was, thereafter, taken to Pal Nursing Home with the help of PW10 Harendra Singh and Sudhir. On the advise of doctors, he was taken to Civil Hospital, Roorkee, where he was declared brought dead. He gave FIR, Ex. A-1.
21. According to PW1 Nitin Rana, the deceased had some dispute with regard to accounts and in that matter the appellant Bijendra was taking side of the appellant Yunus. This witness categorically states that he knew about the appellant Yunus only at the time of incident, although he had heard the names of Bijendra and other persons. In answer to a question, he tells that after 2-3 12 days, he could identify the appellant Bijendra Singh and Sandeep alias Sanjeev and Sanjay Pal as was told to him by his mother.
22. PW3 Pushpa Devi presents a somewhat different version. She was the wife of the deceased. According to her, her husband was constructing a complex in Kankhal through the appellant Yunus. On 04.03.2003, PW10 Harendra Singh and another brother of deceased namely Sudhir had come to meet the deceased. At 09:00 PM, the deceased telephoned her and inquired about the appellant Bijendra and told that he is threatening him to life. Ten Minutes thereafter, according to this witness, appellant Bijendra also telephoned her and inquired about the deceased. PW3 Smt. Pushpa Devi says that she was little disturbed, therefore, she went downstairs. Her both brother-in-laws i.e. PW10 Harendra Singh and Sudhir came downstairs and asked, as to why she has come out of the house? Half an hour thereafter, the deceased along with one Bhanwar Singh came and told this witness that he is returning shortly after dropping Bhanwar Singh at his residence. In the meanwhile, PW1 Nitin Rana also reached there.
23. PW3 Smt. Pushpa Devi states that at 10:30 PM, as soon as the deceased returned and walked towards his house, she saw that four persons opened fire on the deceased. According to this witness, the appellant Bijendra had a rifle, the appellant Yunus had a country made pistol. Sandeep alias Sanjeev and Sanjay Pal also had country made pistol, from which, they fired. Due to this firing, the deceased fell on the ground. This witness saw the incident in the tube light. Thereafter, all the assailants ran away from the place of incident in two vehicles. The appellants Bijendra, 13 Yunus and Sanjeev left the place of incident in Indica Car bearing Registration No.UA08 4700, whereas Sanjay Pal left the place of incident in Maruti Gypsy bearing Registration No. DNC 4333.
24. It may be noted that according to the FIR, there was one vehicle and all the assailants were not named in the FIR, but PW3 Smt. Pushpa Devi later named the assailants, assigned them role and also tells that they left the place of incident in two vehicles.
25. PW10 Harendra Singh is brother of the deceased. He, in his examination-in-chief has corroborated the statement of PW3 Smt Pushpa Devi and had specifically given the registration numbers of both the vehicles i.e. Indica Car No.UA08 4700 and Maruti Gypsy DNC 4333.
26. PW2 Onkar Singh, who according to the FIR was present with the deceased when he received a threatening call from the appellant Bijendra. PW2 Onkar Singh has stated so. PW4 Jitendra Singh is a witness to the inquest.
27. PW5 Dr. Ajay Agarwal was posted at Civil Hospital, Roorkee on the date of incident. According to him, on that date at 11:20 PM, PW8 Ajay Chauhan, who was Station House Officer ("SHO"), Police Station Gangnahar, Roorkee brought the deceased Rajpal Singh to the hospital, who was already dead. This witness reported the incident to the Police Station Gangnahar. He proved the communication Ex. A-2. This is an information which simply records that the deceased was brought dead in the hospital on 14 04.03.2003 at 11:20 PM. The deceased was brought by Ajay Chauhan, SHO, Police Station Gangnahar, Roorkee.
28. PW6 Dr. K.C. Pant conducted the postmortem of the deceased on 05.03.2003. According to him, he found ante mortem injuries on the person of the deceased:-
1) Fire Arms Injury: In the size of 1.2 cm x 1.22 cm stomach deep, in 12 o'clock position. 15 cm below from the right Nipple and 20 cm above from the navel, which was bleeding. The margins were inverted, they were burnt, black, the internal parts of the stomach were damaged; metallic parts were also detected from the body.
2) Firearm wound entry wound: 1cm x 1.2 cm. Margin inverted burnt and black. The internal organs were damaged. Two metallic pieces were detected from the body.
29. According to the doctor, the cause of death is shock and hemorrhage and ante mortem firearm injuries. PW6 Dr. K.C. Pant has also detected two large pieces of metal. He gave all those pieces along with the clothes of the deceased to the police.
30. PW8 Ajay Chauhan is an important witness. He was posted as SHO, Police Station Gangnahar, Roorkee on 04.03.2003. According to him, after lodging of the FIR in the instant matter, he took up the investigation, prepared inquest and other documents. He proved inquest report Ex. A-4 and other documents related to it i.e. Ex. A-6 to Ex. A-8. He prepared site plan Ex. A-9 and took into custody cartridge case. He proved the Recovery Memo Ex. A-10. According to this witness on 21.03.2003, the investigation was transferred to the CBCID.
31. PW7 Mahendra Singh Negi is the IO, who states that he took up the investigation of the matter on 02.04.2003 after it was 15 transferred from CBCID. He has recorded the statements of certain witnesses. According to him, thereafter, he was transferred.
32. PW9 Udai Veer Singh Sirohi is a very important witness. He was posted at a Police Picket Post, which was just opposite to the place of incident. According to him, on the date of incident, he was on duty. At 10:30 PM, he heard some fire shots and noticed some commotion at a distance of 100 paces. When he reached at the place of incident, he saw Rajpal Singh in an injured condition and he also noticed a white Indica Car UA08 4700 moving fastly from there. He was told by the persons present at the spot that the assailants had ran away in the fleeing car. According to this witness, he had no vehicle, therefore, he could not chase the Indica Car, but he informed his seniors about the incident.
33. PW11 Constable Naresh Kumar has lodged the FIR in the instant case. He has proved the chik FIR Ex. A-11 and General Diary Entry extract Ex. A-12.
34. PW12 Nanthey Singh Jainwar states that on 28.04.2003, he was posted as Inspector, CBCID, Dehradun, when he received the investigation, he verified the statements of the witnesses recorded by the earlier IO. He also verified the site plan and submitted charge-sheet against the appellant Yunus, which is Ex. A-13. He also proved the charge-sheet submitted against the appellant Bijendra Singh and against Sandeep alias Sanjeev and Sanjay Pal, which is Ex. A-14.
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35. In the instant case, PW1 Nitin Rana has also stated that 2-3 days after the incident, when his mother told him the name of the other assailants, he could recognize them and he could further recognize them, when he was threatened, of which, he had given a report. PW13 Constable Pradeep Maithani has proved the NCR No.1 of 2005 lodged by PW1 Nitin Rana against the appellant Bijendra. He proved the chik FIR, extract of G.D. Entry and other documents.
36. On behalf of the defence, DW1 Yashpal Singh has been examined. He has stated that on 04.03.2003, at 09:30 PM, the appellant Bijendra along with his family had visited the house of Sansar Singh, where there was a marriage ceremony and he stayed there till 10:30 PM. He also tells that on 05.03.2003, in the morning also, Bijendra was present in marriage ceremony in the house of Sansar Singh.
37. It is a criminal trial. The burden is on the prosecution to prove its case beyond reasonable doubt. An innocent should not be convicted, but equally, the principle of criminal law is that a guilty person should not be let go. This should be the basic theme of appreciation of evidence. In the case at hand, the prosecution is not required to prove the case beyond absolute doubt. As stated, it should be proved beyond reasonable doubt.
38. In the case of Shivaji Sahabrao Bobade and another vs. Statement of Maharashtra, (1973)2 SCC 793, the Hon'ble Supreme Court has reflected on this aspect and observed as follows:- 17
6. Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community.
The evil of acquitting a guilty person light heartedly as a learned Author [ Glanville Williams in 'Proof of Guilt'.] has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted "persons" and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ...." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these lines long ago.
39. What is proved is defined under the statue. In the case of K. Ponnuswamy vs. State of T.N., (2001)6 SCC 674, the Hon'ble Supreme Court on this aspect observed as follows:- 18
"27. ........................There can be no dispute with the legal proposition. However, let us see what is meant by "proved".
Section 3 of the Evidence Act defines "proved" as follows:
"3. 'Proved'.--A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
Further, Section 114 of the Evidence Act reads as follows:
"114. Court may presume existence of certain facts.--The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
Thus the fact is said to be proved when after considering the matters before it, the court believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. In coming to its belief the court may presume existence of any fact which it thinks likely to have happened having regard to the natural course of event, human conduct and public and private business, in relation to the facts of each case."
40. Similarly, in the case of Iqbal Moosa Patel vs. State of Gujarat, (2011)2 SCC, 198, the Hon'ble Supreme Court discussed the concept of beyond reasonable doubt and in paras 23 and 24 observed as follows:-
"23. It is true that the prosecution is required to establish its case beyond a reasonable doubt, but that does not mean that the degree of proof must be beyond a shadow of doubt. The principle as to what degree of proof is required is stated by Lord Denning in his inimitable style in Miller v. Minister of Pensions [(1947) 2 All ER 372] : (All ER p. 373 H) "... That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence 'of course it is possible, but not in the least probable,' the case is proved beyond reasonable doubt...."19
"88. It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land."
24. Reference may also be made to the decision of this Court in Sucha Singh v. State of Punjab [(2003) 7 SCC 643 : 2003 SCC (Cri) 1697] where this Court has reiterated the principle in the following words: (SCC p. 653, para 20) "20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh [(1990) 1 SCC 445 :
1990 SCC (Cri) 151 : AIR 1990 SC 209] ). The prosecution is not required to meet any and every hypothesis put forward by the accused. ... A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish.""
41. What is 'proved', 'disproved', 'not proved' and where is the place of 'suspicion' and 'great suspicion' in these concepts. The incident 'could have' happened or 'has happened'. What is the distance between, "may be" and "must be". These concept have been elaborated by the Hon'ble Supreme Court in the case of Sujit Biswas vs. State of Assam, (2013)12 SCC 406. In para 13 of it, the Hon'ble Supreme Court observed as follows:-
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, 20 suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be"
true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide Hanumant Govind Nargundkar v. State of M.P. [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1953 Cri LJ 129] , State v. Mahender Singh Dahiya [(2011) 3 SCC 109 : (2011) 1 SCC (Cri) 821 : AIR 2011 SC 1017] and Ramesh Harijan v. State of U.P. [(2012) 5 SCC 777 : (2012) 2 SCC (Cri) 905] )"
42. The Court takes help of experts while comparing signatures, writing, etc. on the documents. At times the court may compare the words or figures on its own. Section 73 of the Indian Evidence Act, 1972 permits the court to do so. In the instant case, it has some significance. The court will read FIR on its textual aspect also. The court may make an opinion, as to how and under what circumstances, a document is written. It may not be termed as conjecture and surmises. The provisions of Sections, 45, 47 and 73 of the Indian Evidence Act, 1872 has been discussed by the Hon'ble Supreme Court in the case of Lalit Popli vs. Canara Bank and others, (2003)3 SCC 583, which reads as follows:-21
"13. It is to be noted that under Sections 45 and 47 of the Evidence Act, the court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the court by its own comparison of writings can form its opinion. Evidence of the identity of handwriting is dealt with in three sections of the Evidence Act. They are Sections 45, 47 and 73. Both under Sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the handwriting expert, the court can compare the admitted writing with the disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of the handwriting expert need not be invariably corroborated. It is for the court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when an expert's evidence is not there, the court has power to compare the writings and decide the matter. (See Murari Lal v. State of M.P. [(1980) 1 SCC 704 : 1980 SCC (Cri) 330] )"
43. In fact, learned Senior Counsel appearing for the appellant Bijendra has also argued that the report which was received at the Police Control Room could have been lodged as an FIR. The FIR basically is the information of commission of a cognizable offence given to a police officer. In the instant case, the report was not given to any police station instead at the Police Control Room the information has been received, which was also cryptic; it was not revealing much. Therefore, it cannot be said that the information which was received at the Police Control Room at 10:33 PM could have been lodged as an FIR by any police station.
44. The deceased was brought dead at Civil Hospital, Roorkee at 11:20 PM. The FIR was lodged at 11:50 PM., which means that 01:30 hours after the deceased was declared dead by 22 PW5 Dr. Ajay Agarwal at Civil Hospital, Roorkee, the FIR was lodged. The dead body was in the mortuary. PW1 Nitin Rana has not stated that he met either PW2 Onkar Singh, Arun Bhatnagar or Bhanwar Singh, who, according to the FIR, were allegedly sitting with the deceased when he received a threatening telephone call from the appellant Bijendra.
45. The Court is not making any endeavour beyond what is assigned to it. The Court is reading the FIR. PW2 Onkar Singh is one of those persons, who was allegedly sitting with the deceased in the late evening of 04.03.2003, when he allegedly received a threatening call. PW2 Onkar Singh has though stated about this call. But, how could he hear it. If a person is talking to some other person over telephone, how could some third person hear it? Particularly, how could he hear, as to what the person from the other side has communicated?
46. PW2 Onkar Singh has not stated that he immediately told it to PW1 Nitin Rana that on the date of incident, in the late evening, the deceased received a telephonic call. On the other hand, in para 3 of his statement PW2 Onkar Singh tells that on the date of incident, he came to know about it. But, on that date he did not reveal it to the police or any other person, instead he gave some written text to the police sometime thereafter. The question is, how in the FIR it is recorded that on 04.03.2003 in the evening the deceased was sitting with PW2 Onkar Singh, Arun Bhatnagar and Bhanwar Singh when he received a threatening call from the appellant Bijendra. There is no statement to that effect. 23
47. The FIR records that when the deceased was taken at Pal Nursing Home police had arrived there, which means, police had not arrived prior thereto. PW9 Udai Veer Singh Sirohi was at picket post across the road on the date of incident. He tells that soon after the incident, PW8 SHO Ajay Chauhan has also reached at the place of incident, although as stated, PW8 Ajay Chauhan has stated that he had reached at the Pal Nursing Home. There are great contradictions on the material points. These contradictions are great under the facts and circumstances of the case. It would be elaborated further.
48. PW1 Nitin Rana was a student in Dehradun. PW3 Smt. Pushpa Devi admits that she had divorced the deceased long back, but she tells that she had subsequently, settled the dispute with the deceased and they were staying together.
49. PW10 Harendra Singh was a chance witness. According to him, he had come to meet his brother on the date of incident. These are definitely chance witnesses. There is no rule of law that the statement of chance witnesses may not be trustworthy, but the rule of prudence requires that the statement of such chance witnesses should be scrutinized carefully.
50. How the incident happened? There are three versions namely:- (i) One in the FIR. (ii) What the PW1 Nitin Rana has stated and; (iii) What PW3 Smt. Pushpa Devi and PW10 Harendra Singh have stated.
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51. This Court is cautious of the fact that the FIR may not be encyclopedia so as to incorporate each detail of the incident. But, at the same time, meticulously written detailed FIR also raises suspicion. Moreover, in such circumstances, when a son has lost his father and dead body was in a mortuary.
52. According to the FIR, PW1 Nitin Rana along with PW10 Harendra Singh and others were standing in front of their house, downstairs, where at 10:30 PM the deceased arrived and he was killed. But, in the evidence, the reason of the presence of witnesses on the road at the time of incident has not been given. According to the prosecution witnesses, PW3 Pushpa Devi did receive a telephone call of the deceased, inquiring about the appellant Bijendra. Thereafter, Bijendra also called PW3 Smt. Pushpa Devi inquiring about the deceased Rajpal Singh. PW1 Nitin Rana, PW3 Smt. Pushpa Devi and PW10 Harendra Singh states that after hearing the telephone call PW3 Smt. Pushpa Devi became a little disturbed and tensed. Therefore, she came downstairs and waited for her husband on the road. She was followed by the PW10 Harendra Singh and Sudhir and subsequent thereto, PW1 Nitin Rana also joined them. There is a history of the presence of these three witnesses on the road at the time of incident. It is missing in the FIR.
53. What is most significant is that the presence of PW3 Smt. Pushpa Devi is not recorded in the FIR. It doubts the trustworthiness and credibility of the FIR and the statements of the witnesses. It is important because the whole cause for presence of PW1 Nitin Rana, PW3 Smt. Pushpa Devi and PW 10 Harendra 25 Singh at the place of incident, according to these witnesses was the telephonic call, which was allegedly received by PW3 Smt. Pushpa Devi.
54. The eye-witnesses have stated that the deceased arrived in front of his house and went to drop one Bhanwar Singh. Now, the question is, who is this Bhanwar Singh? Why he has not been examined? It further doubts the prosecution case for the simple reason that if the deceased was afraid and was inquiring about the appellant Bijendra, who had allegedly given him life threat, why did he go to drop Bhanwar Singh, when his entire family was on the road in front of his house? Why he did not ask some other person to drop Bhanwar Singh?
55. Moreover, PW3 Smt. Pushpa Devi has stated in para 32 of her statement that from Kankhal, from where the deceased was driving his car, first the residence of Bhanwar Singh falls and, thereafter, the residence of the deceased. If it is so, what was the occasion for deceased to take Bhanwar Singh to his house and then go back and drop him at his residence?
56. According to the FIR, as soon as the deceased alighted from the car in front of his house, the appellant Yunus alighted from the another Indica car along with two unknown persons and fired at him, due to which, he died. Was there one car? PW3 Smt. Pushpa Devi and PW10 Harendra Singh tell that there were four persons, who opened fire at the deceased and they ran away from the place of incident in two cars. One Indica Car bearing Registration No.UA08 4700 and another Gypsy DNC 4333. This contradiction in the statement of the witnesses and the contradiction on the one side 26 in the FIR and on the other side in the statement of PW3 Smt. Pushpa Devi and PW10 Harendra Singh is grossly material. It doubts the entire prosecution case.
57. In the court, witnesses have stated, as to who was holding what? According to PW1 Nitin Rana, PW3 Smt. Pushpa Devi and PW10 Harendra Singh, appellant Bijendra had a rifle, whereas the appellant Yunus had a country made pistol and Sandeep alias Sanjeev and Sanjay Pal were also holding the country made pistols, by which they opened fired. As such, it is not stated in the FIR. But, before that what is important to see is that the appellant Bijendra has not been assigned any role of firing in the FIR. What is also important to notice in the FIR is that Sandeep alias Sanjeev and Sanjay Pal have not been named, as such.
58. PW3 Smt. Pushpa Devi and PW10 Harendra Singh claim that they knew all the assailants. If PW3 Smt. Pushpa Devi and PW10 Harendra Singh were present with PW1 Nitin Rana at the place of incident, why all the assailants were not named in the FIR along with their specific role? It also doubts the credibility of the FIR as well as credibility of the entire case. In fact PW3 Smt. Pushpa Devi and PW10 Harendra Singh claim that they had given written statement also to the police which was recorded by one K.P. Singh. What was the occasion for that?
59. If PW3 Smt. Pushpa Devi and PW10 Harendra Singh were present at the place of incident, why they did not reveal the names of the assailants to PW9 Udai Veer Singh Sirohi when he reached at the spot?
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60. PW1 Nitin Rana admits that in FIR, he has stated that three persons opened fire. In page 18 at the bottom of his statement PW1 Nitin Rana tells that since he was much disturbed and panicked, therefore, he could not write four persons. This explanation is not genuine. Panic and disturbance do not make somebody to leave, a person who had opened fire; this explanation given by PW1 Nitin Rana is also belied by the statement of PW8 Ajay Chauhan, when in the page 7 of his statement in the bottom, he tells that PW1 Nitin Rana had told him that three persons fired and he had not told him that fourth person also opened fire.
61. In so far as the presence of PW3 Smt. Pushpa Devi is concerned, as stated, it is not recorded in the FIR. PW1 Nitin Rana at page 13 of his statement bottom paragraph claims that he had told it to the IO that his mother also had seen the incident, but PW8 Ajay Chauhan, the IO claims that PW1 Nitin Rana did not tell him that his mother was also present and had witnessed the incident. It further doubts the presence of witnesses at the spot.
62. PW1 Nitin Rana states that after his father was shot, blood spilled, which fell on the road (statement of PW1 is at page
08) and on his clothes also. According to him, after injuries he grabbed his father and took him in a car along with PW10 Harendra Singh. In his statement at page 09 opening paragraph, PW1 Nitin Rana tells that he had shown to police the place of incident on 05.03.2003 where the blood had spilled on the ground and the police had also taken the blood stained soil. He also tells in the same line that when he took the deceased in his car, blood also spilled on the seat of the car.
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63. Had there been blood on the clothes of PW1 Nitin Rana, PW10 Harendra Singh and the blood recovered from the car, in which, the deceased was allegedly taken to the hospital and the blood matches with the deceased, perhaps it would have given support to the story of the prosecution that PW1 Nitin Rana and PW10 Harendra Singh were present on the spot. But, it is not so.
64. PW8 Ajay Chauhan, who was the IO tells that PW1 Nitin Rana has not shown him the car, which had blood stained. He had also not shown him the place where the blood was spilled (PW8 Ajay Chauhan's statement is at page 06, last paragraph). On this aspect there are contradictions in the statements of PW1 Nitin Rana and PW8 Ajay Chauhan. Blood stained soil was not taken by the IO. Even blood was not detected from the car, in which, allegedly the deceased was taken to hospital. This evidence, which could have otherwise linked the presence of PW1 Nitin Rana and PW10 Harendra Singh at the spot, is also grossly missing. This is not only missing, but as stated, there are contradictions on this point between the statements of PW1 Nitin Rana and PW8 Ajay Chauhan. These contradictions are also material.
65. There is another great contradiction in the prosecution story which belies the prosecution case. Site Plan Ex. A-9 has been proved by PW8 Ajay Chauhan. According to it, the situation is as follows:-
(i) The incident took place on the Ramnagar Road.
(ii) The deceased was killed on the left side of the road while moving from the Ramngar Chowk to Ramnagar.
(iii) The assailants were standing at a place shown by letter 'A' on the site plan along with their arms.29
(iv) Two cars of the assailants have been shown parked. One on the side where the deceased was killed and another on the opposite side of the place of incident.
(v) There is a Pan Khokha shown opposite to the place of incident.
66. Study of the site plan makes a great revelation. It shows two cars had already been parked on the both sides of the road. According to the site plan, all the assailants were standing towards South, where the deceased was killed. It is in the same side where the house of the deceased was located.
67. According to the FIR, when the deceased arrived at the place of incident an Indica car followed him, from which, the assailants including the appellant Yunus disembarked and they opened fire at the deceased, but the site plan does not substantiate it. Site plan makes another story. According to the site plan, vehicles of the assailants had already been parked on the both sides of the road and the assailants were standing towards the house of the deceased with their arms and ammunitions. PW10 Harendra Singh in page 08 of his statement admits that in his written statement given to the IO, he had written that some persons were hiding, while holding rifles. But though, he also states that he does not know, as to how he has recorded such statement.
68. It is not the case in the FIR. The prosecution witnesses PW1 Nitin Rana, PW3 Pushpa Devi and PW10 Harendra Singh have not stated that the assailants were hiding towards the house of the deceased from where they opened fire. It has been consistent case in the FIR that when the deceased alighted from his car and moved towards his house, an Indica car which was following him reached 30 there, from which, the appellant Yunus alighted along with two other persons and they opened fire.
69. PW3 Pushpa Devi and PW10 Harendra Singh in their statement given in the court had stated that assailants had come in two vehicles and had opened fire. It has not been stated in the court that the assailants were hiding, whereas the story in the site plan and the statement of PW10 Harendra Singh given to the IO makes another story of hiding of the assailants towards the house of the deceased while parking their cars on the both sides of the road.
70. If the assailants were hiding towards the house of the deceased, how they could not be noticed by the witnesses? i.e. by PW1 Nitin Rana, PW3 Pushpa Devi and PW10 Harendra Singh, who claimed that they were waiting for the deceased to come. PW3 Pushpa Devi and PW10 Harendra Singh claims to know all the assailants. Where were they hiding? It was a vacant shop where they were allegedly hiding themselves and in the same place, the witnesses claim that they were waiting for the deceased to come. This further doubts the prosecution case.
71. According to PW9 Udai Veer Singh Sirohi, who was on the picket post across the road, PW8 Ajay Chauhan had also reached at the spot, although PW8 Ajay Chauhan has denied to it. According to him, he had reached Pal Nursing Home.
72. PW9 Udai Veer Singh Sirohi has stated that when he noticed firing, he reached at the spot, but he could not follow the 31 fleeing car of the assailants and did not open fire. He has given reasons for that. According to him, he had no vehicle (Statement of PW9 Udai Veer Singh Sirohi, page 01) and there were many people at the crossing, therefore, he could not open fire, it could have hurt them (Statement of PW9 Udai Veer Singh Sirohi, page 03).
73. There was car of the deceased on the road and if the family members were there, what had prevented PW9 Udai Veer Singh Sirohi to follow the assailants in the car of the deceased? According to the site plan Ex. A-9 and the statements of the witnesses, the incident did not take place at the Ramnagar Chowk instead it took place towards East of the Ramnagar Chowk; the FIR records that the assailants ran towards Block. It was not crossing. Why the moving vehicles could not have been interrupted by some other means? But, that is not significant.
74. What is significant is that the first report of the incident that was given to Police Control Room did not name either the assailants or the injured. PW9 Udai Veer Singh Sirohi is the first police person, who reached at the spot. But, he has contradictory statement. On page 04, second paragraph PW9 Udai Veer Singh Sirohi states that he had identified Rajpal Singh as soon as he arrived there because he knew him, but the name of injured was not revealed initially. But, in page 05 bottom line of his statement PW9 Udai Veer Singh Sirohi tells that till he informed the senior officers, he was not aware of the name of the injured and after 5-7 minutes, he could know that the injured was Rajpal Singh. Why is this contradiction? If the family members of the deceased were at the spot they could have easily identified the deceased as well as 32 the assailants and accordingly, the information could have been sent by PW9 Udai Veer Singh Sirohi to his superiors, but it was not done. As stated, the presence of witnesses namely PW1 Nitin Rana, PW3 Smt. Pushpa Devi and PW10 Harendra Singh is much doubtful.
75. Who took the deceased to hospital? According to PW1 Nitin Rana, he along with PW10 Harendra Singh and others took the deceased to hospital in the car of the deceased. They took him first to Pal Nursing Home and, thereafter, to the Civil Hospital, Roorkee where he was declared brought dead. But, PW5 Dr. Ajay Agarwal has categorically stated that the deceased was brought in the hospital by SHO Ajay Chauhan. If the family members had taken the deceased to hospital, why Ex. A-2 records that PW8 Ajay Chauhan took him to hospital?
76. On this point, learned counsel for the State would submit that since police has escorted the deceased, therefore, his name was recorded. But, this argument is not acceptable because according to PW9 Udai Veer Singh Sirohi, PW8 Ajay Chauhan had also reached at the spot. But, PW8 Ajay Chauhan claims that he went Pal Nursing Home. In page 04 of his statement, PW8 Ajay Chauhan has admitted that in the Case Diary, he records that after lodging the report he reached Pal Nursing Home and thereafter, he took the deceased to Civil Hospital, Roorkee where he was declared brought dead.
77. How could PW8 Ajay Chauhan write like this because according to the FIR, it was lodged when the deceased had already 33 died and he was brought dead at Civil Hospital, Roorkee and his dead body was lying in mortuary. If the deceased was already dead in the Civil Hospital, Roorkee and after that the FIR was lodged, there was no occasion for PW8 Ajay Chauhan to reach Pal Nursing Home. As stated, PW9 Udai Veer Singh Sirohi has stated that, in fact, PW8 Ajay Chauhan had reached at the spot. The FIR records that the police reached at Pal Nursing Home. Why is this discrepancy? It has not been cleared by the prosecution.
78. In fact, what is being argued is that the FIR was lodged ante time. In the FIR, the parentage of appellant Yunus and appellant Bijendra is not written. But, PW8 Ajay Chauhan, IO admits in his statement at page no.03 that before recording the statement of any witness, he has recorded the parentage of appellant Yunus in the Case Diary. How it was done? Did the IO know him?
79. In view of these discrepancies, the statement of PW5 Dr. Ajay Agarwal that deceased was brought in the hospital by PW8 Ajay Chauhan, amply proves that there was no family member present in the hospital when the deceased was taken to hospital because, as stated, had there been any family member, they could not have waited PW8 Ajay Chauhan to arrive at the place of incident (as stated by PW9 Udai Veer Singh Sirohi). There could have been no occasion for PW8 Ajay Chauhan to take the deceased to hospital. Under such circumstances, definitely the family members would have immediately taken the deceased/injured to hospital.
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80. According to the prosecution, the appellant Bijendra opened fire from his rifle. FSL Report Agra confirms that the cartridge case, which was allegedly recovered from the place of incident, was fired through the rifle. But the FSL Report Chandigarh does not support the prosecution case.
81. Where was the cartridge case taken after its alleged recovery? Who took it for forensic examination? When was it taken? In whose custody, it was kept? There is no evidence forthcoming.
82. The statement of PW12 Nanthey Singh Jainwar, who submitted charge-sheet is important. In page no.4, para 7 of his statement, he says that he had received a receipt dated 04.03.2003 to reveal that the licensed rifle of the appellant Bijendra was deposited with the International Traders Muzaffarnagar on that date. This receipt, according to that witness was received on 04.06.2003. Has it been examined? Has the IO interrogated International Traders to verify, as to whether the licensed rifle of the appellant was deposited with him on 04.03.2003? And; if it was so deposited, where was the occasion for firing from the same rifle in the late evening of 04.03.2003? These all, have not been established by the prosecution. As stated, there are two contradictory Forensic Science Laboratories Reports. Therefore, the FSL Report also does not support the prosecution case.
83. Having considered the facts and circumstances of the case on the basis of the above discussion, this Court is of the view that the prosecution has not been able to prove its case beyond reasonable doubt against Yunus, Bijendra and Sanjay Pal. 35 Therefore, the appeals preferred by the appellants Yunus and Bijendra deserve to be allowed, whereas the appeal preferred by the appellant Nitin Rana deserves to be dismissed.
84. The Criminal Appeal No. 367 of 2012 and Criminal Appeal No. 371 of 2012 are allowed.
85. The appellants Yunus and Bijendra are acquitted of the charges under Section 302 read with Section 34 IPC and the appellant Bijendra is further acquitted of the charge under Section 506(2) IPC. They are on bail. They need not surrender. Their bonds cancelled and sureties are discharged of their liability.
86. Criminal Appeal No. 147 of 2013 is hereby dismissed.
87. The impugned order is modified to the extent, as indicated above.
88. Let a copy of this judgment alongwith record be forwarded to the court below for compliance.
(Alok Kumar Verma, J.) (Ravindra Maithani, J.) 14.02.2025 Sanjay