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4. One Umed Singh son of Mahi Ram [PW14], while waiting near Borstal Jail, Hisar for a conveyance at 4:00 A.M on 16.12.1994 (morning) had seen A1, A2, Chander Bhan and A3 going in an auto rickshaw. It is the prosecution’s version that all of them went to an abandoned house in Adarsh Nagar at Hisar, wherein Chander Bhan (deceased) was shot by the aforesaid accused.
5. Thereafter, A1 and A2 took injured Chander Bhan to the City Civil Hospital, Hisar for treatment. It is alleged that in the meanwhile A3 tried to hide the gun. It is born from the record that Chander Bhan succumbed to his injuries 20 minutes after he was admitted to the aforesaid Hospital on 16.12.1994.
8. The case was investigated by I.O. Bhim Singh [PW15], who reached the spot of the alleged occurrence as per the narration of accused A2. However, he could not trace any incriminating material as alleged. Being suspicious of the version of accused A 2, the investigating police, started to investigate from different angles.
9. On 25.12.1994, all the accusedappellants contacted one Zile Singh [PW16] and confessed their guilt before him. To put the gist of their extrajudicial confessions, it may be noted that the accused stated to Zile Singh (PW16) that having the motive to file a counter case against Dharampal son of Beg Raj, the Sarpanch, the accusedappellants along with Chander Bhan reached an abandoned house in Adarsh Nagar, Hisar and Suresh [A3] fired a shot at Chander Bhan in the house at Adarsh Nagar. Thereupon accused A3 fled away with the gun. Later, accused A1 and A2 took Chander Bhan to the hospital and registered a false complaint against Dharampal son of Beg Raj, Dharambir and Umed Singh son of Beg Raj under Section 302, IPC.
48. On the aspect of recovery of pellets from a house at Adarsh Nagar, Hisar, it is an argument of the learned senior counsel, appearing on behalf of the appellant accused, that the FSL Report indicating the possibility of pellets being fired from the gun recovered from the confession of accused A3, should not be considered as the person, who made the report was not examinedis of some relevance. The FSL report forms part of the evidence, which is shown to point out that the crime had taken place in the house at Adarsh Nagar, Hisar and gun of 0.15 bore belonging to A3 was used for the same. The prosecution was expected to examine the author of the report, and non examination of the same is a fatal error in the case at hand. Moreover, at the scene of occurrence, there was no blood or foot marks found, which is apparent from the evidence of PW8.
8.) Chander Bhan’s body was found to have sustained more than fifty ante mortem gun shot wounds.
9.) Gun and pellets were recovered from an abandoned house in Adarsh Nagar.
10.) Extrajudicial confession recorded before Zile Singh on 25.12.1994.
51. From the aforesaid circumstances, we may note that the hypothesis canvassed by the prosecution cannot be said to have been proved beyond reasonable doubt as there exist apparent gaps in the prosecution story, which are left incomplete or insufficiently proved. In Latesh v. State of Maharashtra, AIR 2018 SC 659, this court had observed the ‘When you consider the facts, you have a reasonable doubt as to whether the matter is proved or whether it is not a reasonable doubt in this sense. The reasonableness of a doubt must be a practical one and not on an abstract theoretical hypothesis. Reasonableness is a virtue that forms as a mean between excessive caution and excessive indifference to a doubt.’ In view of this proposition, we accept that there is no direct evidence which led the prosecution to clearly prove that deceased was shot at Adarsh Nagar in Hisar. Even the circumstantial evidence which is led, has gaps in between. In the narration above, there is a big hiatus between the time the accused left the village and the accusedappellants were seen in the Hospital, at Hisar. Neither the intermediate facts are established with certainty, nor the case as a whole is established beyond reasonable doubt.