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9. In the separate trial against the respondent Susheel, which was registered as Sessions Trial No. 335A of 2008, State v. Susheel, in the court of Additional Sessions Judge, Laksar, District Haridwar, judgment was delivered on 29.09.2018 and he was acquitted of the charge under Sections 302 read with 34, 307 read with 34, 302 read with 120B and 504 IPC. State has chosen to prefer an appeal against the acquittal of the respondent Susheel.

10. In order to prove its case, the prosecution examined ten witnesses, namely, PW1 Atul, PW2 Ashish Kumar, PW3 Arun Kumar, PW4 Om Pal, PW5 Dr. Mange Ram Malik, PW6 Dr. Anil Kumar Verma, PW7 Sub Inspector, Rakesh Chand Bhatt, PW8 Jaipal Singh, PW9 Kaushal and PW10 Inspector, B.S. Chauhan. In their defence, the appellants got examined Bobby as DW 1.

(iii) Appellant Praveen Balmiki was arrested on 10.05.2008. He was kept in the lockup. His family members did lodge report also and then he was falsely shown to have been arrested on 18.05.2008 with a country-made pistol, etc.

15. Learned counsel for the appellant Narendra submits that he has been implicated merely based on confession made by the appellant Praveen Balmiki. The recovery has been falsely shown on him. Even he has not been charged with offence under Section 25 of the Arms Act. He has not been convicted thereunder. Referring to the statement of PW10 Inspector, B.S. Chauhan, learned counsel submits that according to the IO, PW1 Atul and PW2 Ashish Kumar did not name the appellant Narendra. It was revealed to him, by one Sansar, but that Sansar has not been examined as a witness. No test identification parade was done. Hence, it is argued that the prosecution has not been able to prove its case beyond reasonable doubt.

28. PW10 Inspector, B.S. Chauhan is the IO. According to him, after the incident on 09.05.2008, PW1 Atul was interrogated by him, but he said that the persons other than named in the FIR did commit the offence. He said that those assailants were spotted in the village with the appellant Pappu Gujjar. According to PW10 Inspector, B.S. Chauhan, on 18.05.2008, it is the PW1 Atul, who telephonically informed the police and thereafter, the appellant Praveen Balmiki was arrested and from his possession, a country-made pistol, cartridges and cartridge case were recovered. He proved those recovery memos.

29. DW1 Bobby has stated that on 10.05.2018, the Police from Gangnahar took the appellant Praveen Balmiki and one other person alongwith them. Police committed atrocities with them of which report was given to the authorities. He has proved certain documents.

30. According to the FIR, the incident took place in the morning of 08.05.2008, when PW1 Atul and PW 2 Ashish Kumar were proceeding on a motorcycle alongwith their grand-mother to attend the proceedings of the court. There were five persons in two motorcycles. According to the FIR, they opened fire, due to which, Vimla Devi died. Those five persons are named in the FIR. They are Gyan Singh, Punjab Singh (both belonging to same village that of PW 1 Atul), Dilshad and Irshad (the residents of Manglore) and one more person. According to the FIR, there were two motorcycles, in which, five persons were riding. Four were named. It may be noted that the FIR was lodged at 07:45 a.m. on the date of incident. PW1 Atul has stated that the incident took place at 06:30 in the morning. FIR is prompt. Those named persons have not been charge sheeted. According to PW10 Inspector, B.S. Chauhan, the IO, on the next date of incident, PW1 Atul had disowned the FIR to the extent of the names of the assailants and then, in a subsequent statement, according to PW10 Inspector, B.S. Chauhan, the informant PW1 Atul had said that three persons on a Pulsar motorcycle did commit the offence. This is a very wavering statement. Why is it so? If it is not sufficiently explained, it is fatal to the prosecution.