Dr. Satyavir Singh vs State Of U.P.
2015 Latest Caselaw 2268 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved 
 

 
Case :- CRIMINAL APPEAL No. - 1246 of 2011
 
Appellant :- Dr. Satyavir Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- V. Singh, Dileep Kumar, 						     H.P.Singh
 
Counsel for Respondent :- Govt. Advocate, Ajat Shatru 					 Pandey
 
			Connected with
 
Case :- CRIMINAL APPEAL No. - 988 of 2011
 
Appellant :- Raju Alias Raj Kumar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- V. Singh
 
Counsel for Respondent :- Govt. Advocate,Ajat Shatru 						Pandey
 
			AND
 
Case :- CRIMINAL APPEAL No. - 1154 of 2011
 
Appellant :- Sukhmal Jain
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Pankaj Kumar Tyagi,Lav Srivastava,Smt. Archana Tyagi
 
Counsel for Respondent :- Govt. Advocate
 
			AND
 
Case :- CRIMINAL APPEAL No. - 1298 of 2011
 
Appellant :- Babble Alias Gyanendra
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Pradeep Kumar Bhardwaj, Apul 				    Misra
 
Counsel for Respondent :- Govt. Advocate,Ajatshatru 						Pandey
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

Being aggrieved and dissatisfied with the judgment of conviction dated 4.2.2011 passed by the Additional Sessions Judge, Court No. 5, Bulandshahr, all the appellants, by means of aforesaid four separate appeals, have questioned the legality and correctness of the aforesaid judgment, whereby the learned trial court has held all of them guilty under Section 302 of I.P.C. with the aid of section 34 and section 120B of I.P.C. and has convicted and sentenced them as under :

"Convicts Dr. Satyavir, Raju alias Rajkumar, are sentenced for life imprisonment, and a fine of Rs. 1,00,000/- each, for the offence punishable under section 302 read with 34 of I.P.C. In case of default, every one of them shall undergo simple imprisonment for one year. Half of the amount from each of the fine i.e. Rs. 50,000/- shall be paid to the family members of the victim.

Convicts Dr. Satyavir, Raju alias Rajkumar, Sukhmal Jain and Babble alias Gyanendra are also sentenced for life imprisonment for the offence punishable under section 302 read with section 120B of I.P.C. And a fine of Rs. 50,000/- each. In case of default, every one of them shall undergo simple imprisonment for one year. Half of the amount of each of the fine i.e. Rs. 25,000/- shall be paid to the family members of the victim."

As all the aforesaid four appeals arise out of the same judgment and order dated 4.2.2011 and are related to the same occurrence, all were connected with each other by previous orders of this court. Hence all are being disposed of by this common judgment.

We have heard learned counsel for the appellants, learned A.G.A. for the State and Sri Gopal Chaturvedi, learned Senior Counsel, assisted by Sri Ajat Shatru Pandey, appearing for the private respondent and have carefully gone through the evidence available on record as well as the impugned judgment.

The prosecution case in brief is that the complainant Amit Nagpal (P.W. 1), on 28.3.2008 at 00.45 A.M., lodged an F.I.R. (Ext. Ka 1) at Police Station Anoopshahar, district Bulandshahar, mentioning therein that in the morning of 27.3.2008 at about 10.00 A.M., his father deceased Kishori Lal Nagpal had left Delhi informing that Dr. Satyaveer (accused-appellant) had called him for inspecting some low priced lands and also for procuring him the contract for the bridge of river Ganga. His father along with Rajendra Prasad Pandey (P.W.2) and Vijay Kumar Dhingara had set out from Delhi to Ghaziabad by his Indica Car. In Ghaziabad they met Dr. Satyaveer who asked his father to leave his Indica car at his residence and took them in his Alto car No. DL-9CM 4422 to Anoopshahar where his father saw the Ganga bridge. As the dusk had fallen, it was getting dark and the land which was to be seen was 30 - 35 Kms. away situated in Budaun district, Dr. Satyaveer asked his father to return home stating that the land would be seen some other day, Dr. Satyaveer diverted his Alto car towards Delhi. When the car was moving between Anoopshahar and village Karanpur, Dr. Satyaveer offered whisky to all. He made some pegs of liquor. As the liquor was spilling due to speed of car, Satyaveer asked the deceased Kishori Lal Nagpal, who was driving the car, to slow down the speed so that the liquor might not spill. The deceased slowed down the speed of the vehicle. At the same time, a grey coloured Indica car overtook their Alto car and halted in front of it. From that grey Indica car, a man, wearing white pant, shirt and cap with little beard, stepped down with a revolver in his hand. He fired two shots on deceased Kishori Lal, inflicting fatal injuries on his head. Thereafter the assailant along with driver of Indica car fled away towards Bulandshahr. Just after the occurrence Rajendra Prasad Pandey (P.W. 2) who was travelling in the same car informed about the incident to his son Sheetu, who immediately telephoned the complainant Amit Nagpal, son of the deceased, who along with his family members rushed to the hospital where he found his father dead. At that time Rajendra Prasad Pandey, Vijay Prasad Dhingara and Dr. Satyaveer were present at the hospital. Rajendra Prasad Pandey informed the complainant that Dr. Satyavir had coaxed his father, Kishori Lal, to come to Anoopshahr, with the allurement that he would procure for him some low priced land. He also informed that during all the time when they were going in the car, he (Satyavir), was talking on phone with some person in low volume. At the hospital when, the complainant asked Dr. Satyavir, about the incident, Satyavir, fudged the response and avoided to answer his question by keeping mum. In the FIR, the complainant expressed his strong belief that Satyavir was involved in the murder of his father. He also suspected about the possibility of involvement of appellant Sukhmal Jain, his father's previous business partner, in the conspiracy of murder, due to previous enmity.

On the basis of the aforesaid written report (Ext. Ka. 1) Case Crime No. 100 of 2008 was registered under Section 302 I.P.C. against Dr. Satyavir and Sukhmal Chand Jain and the entry thereof was made into GD at Sl. No. 2 at 00.45 a.m. on 28.3.2008. The check report (Ext. Ka. 8) was prepared at the police station by constable Dhyan Singh (PW 6). The investigation was undertaken by S.O. Karan Singh Chauhan (PW 5), who with S.I. Lal Mohammad (PW 3), Constable Mahesh Chand and Constable Rajkumar proceeded to hospital where the corpse of the deceased Kishori Lal had been kept. S.I. Lal Mohammad prepared the inquest report (Ext. Ka 2). According to the inquest report, the deceased was wearing white coloured half safari shirt, white baniyan, white coloured safari pant, jockey underwear and white socks with Italian leather white shoes. He had blood smeared injury on his right cheek, blood smeared injury on left of his forehead, blood smeared injury on front side of right hand and over the right elbow. Corpse was sealed and was handed over to constable Harpal Singh and Constable Jagdish Prasad for taking it to hospital for post-mortem. The papers enclosed were inquest report, report RI, report CMO, copy of check report, copy of written report, sketch of corpse, chalan of corpse and specimen seal.

Autopsy of the dead body of the deceased was done on 28.3.2008 at 2.00 p.m. by Dr. Aditya Pal Singh (PW 4), who prepared the post mortem report (Ext. Ka. 7), and along with autopsy report handed over to the police a sealed bundle of clothes containing shirt, Baniyan, pant, underwear, one pair shoes and one pair of socks. According to the autopsy report the following injuries were found on the body of the deceased :-

1.Firearm wound of entry 1.5 cm x 1.0 cm brain cavity deep. on right side face 1 cm above from right angle of mandible margins were found inverted. Blackening and tattooing was present on right pinna and right side of the nose. On exploration right maxilla base was found broken.

2.Firearm wound of exit 2 cm x 1.5 cm communicating with injury no. 1; left parietal and frontal bones were found broken. Membrane of the bone was lacerated; 80 ml of blood was present in cranial cavity.

3.Firearm wound of entry 1 cm x 1 cm chest cavity deep was present on outer and back of upper part of right upper arm; on exploration, track was found towards chest; 3rd rib on the front of chest was found broken; right lung and right pleura was lacerated; about 1 litre of the blood was present in right side chest cavity. One metallic bullet was recovered from right side chest cavity.

4.Firearm wound of entry 1 cm x 1 cm muscle deep, on back of right upper arm, 3 cm above from right elbow was found; blackening and tattooing was present in an area of 9 cm x 5 cm around the wound. One metallic bullet was recovered from the muscles of right upper arm.

According to the post-mortem report, the death of the deceased was caused due to shock and haemorrhage as a result of ante mortem injuries and death of the deceased had occurred about ¾ days before.

At the instance of Rajendra Prasad Pandey and Vijay Kumar Dhingra, S.I. Karan Singh inspected the place of occurrence and prepared the site plan ( Ext. Ka. 9) on 29.3.2008. Then on 30.3.2008 he arrested Dr. Satyaveer and Babbal alias Gyanendra from their residence at Ghaziabad. On the same day, S.I. Vinod Pandey arrested appellants Sukhmal Chand Jain and Raju alias Rajkumar. During investigation the name of appellant Babbal came to light and he was also found to be involved in the conspiracy of murder of deceased Kishori Lal Nagpal, on the ground that during journey when the deceased and all others had stopped at the place of Vikas Solanki for having tea, Babbal had reached there. He also had tea and after that Dr. Satyaveer gave him a bottle of whiskey and asked him to inform Ajit (main assailant) that they were going towards Delhi.

On 8.4.2008 S.I. Karan Singh Chauhan took sample of blood stains from the driver seat of Car No. DL-9CN/4200, which was being driven by the deceased Kishori Lal at the time of incident which was sealed and the fard memo (Ext. Ka.10) was prepared. He inspected the spot, prepared site plan, recorded the statements of witnesses and after completing the investigation, filed charge sheet (Ext. Ka. 8) dated 3.5.2008 against the appellants namely Dr. Satyavir Singh, Sukhmal Chand Jain, Babble alias Gyanendra and Raju alias Raj Kumar.

The case being exclusively triable by the court of session, it was committed to sessions court where it was registered as Sessions Trial No. 739 of 2008 and charges were framed against all the appellants under Section 302/34 and 302/120B I.P.C. on 4.8.2008. All the appellants denied the charges framed against them and claimed to be tried.

In order to prove its case, the prosecution led oral as well as documentary evidence. No evidence was produced by the accused-appellants in their defence. However all of them once again denied all the allegations levelled against them in their statements recorded under Section 313 Cr.P.C. and alleged their false implication.

The accused-appellant Sukhmal Jain in his statement under section 313 Cr.P.C., stated that because he himself is a property dealer, the son of the deceased Amit Nagpal (PW 1) due to business rivalry, has falsely implicated him. The accused-appellant Raju stated that he has been falsely implicated in this case by the police. The appellant Dr. Satyaveer Singh stated that he has invested a considerable amount in the business partnership of land and the building with the deceased and in order to grab that money he has been falsely implicated in this case by his son. However, he has admitted that mobile no. 9810112191 belongs to him. The accused appellant Babbal also alleged his false implication. He has stated that he does not know the mobile numbers of Sukhmal Jain and Satyaveer Singh but he has also admitted that the mobile no. 9759337311 belongs to him. None of the appellants have led any evidence in their defence.

As different roles have been assigned to every appellant and all of them have filed separate appeals engaging independent counsel, it appears appropriate to discuss their case and the arguments advanced by their learned counsel separately.

Sri Apul Mishra, learned counsel for the appellant Babbal has filed written arguments too. The contentions of Sri Mishra are that Babbal is neither named in the F.I.R. nor his name has been stated by any of the witnesses during their interrogation by the Investigating Officer under Section 161 Cr.P.C. which fact is evident from the following admission made by P.W. 1 Amit Nagpal :

**CkCcy dk uke ,Q0vkbZ0vkj0 esa ugh fy[kk;k Fkk vkSj uk 161 lh-vkj-ih-lh- ds c;ku esa njksxk th dks crk;k FkkA uk crkuk o uk fy[kus dh dksbZ otg ugh FkhA **

Sri Apul Mishra has contended that P.W. 2 R.P. Pandey, who is the solitary eye witness in this case, has not stated anything against Babbal in his examination in chief recorded on 5.9.2008. However, when P.W. 2 was recalled on the application of prosecution on 13.10.2008 and his statement was again recorded, he, for the first time stated about the complicity of appellant Babbal, assigning him the role of hatching conspiracy for the murder of deceased in the following words :-

**vfHk;qDr cCcy lq[key tSu o lR;ohj dk nksLRk FkkA ?kVuk ls igys Hkh oOoy eq>ls lR;ohj o lq[key tSu ds lkFk fey Hkh pqdk FkkA tc vuwi'kgj esa fodkl lksyadh ds ;gkW pk; ih jg Fks rc ogha ij ?kVuk okys fnu cOoy Hkh vk;k Fkk o mlus Hkh lkFk esa pk; ih FkhA ;g pk; ihus okyh ckr ?kVuk ls vk/kk ?kaVk igys dh ckr gSA Mk0 lR;ohj us pk; ihus ds ckn oOoy dks ,d cksry 'kjkc nh FkhA lR;ohj us oOoy ls dgk fd vthr ls cksy nsuk dh ge yksx vc fnYyh dh rjQ tk jgs gSA vthr us gh xksyh ekjh Fkh] ;g oOoy dk lkFkh Hkh gSA**

Learned counsel for the appellant has vehemently argued that the aforesaid witness was recalled purposely with a view to falsely implicate Babbal by making improvements in the facts omitted by him during his examination in chief recorded earlier. Learned counsel has argued that this belated and tutored statement, which is the only evidence pointing out towards the complicity of appellant Babbal, cannot be a ground for his conviction. Advancing his arguments further Sri Apul Mishra has contended that although the first information report is alleged to have been lodged by Amit Nagpal P.W. 1 after gathering all the details of the incident from Rajendra Prasad Pandey P.W. 2, yet in the first information report there is no whisper about alleged conspiracy part and any role played by Babbal in such conspiracy. There is no allegation or even any suspicion expressed in the first information report against Babble. He has next contended that there was no enmity between the appellant Babbal and the deceased and hence there was no motive for Babbal to participate in the alleged conspiracy. He has further argued that the prosecution has tried to connect the appellant Babbal with the crime mainly on the basis of call details but Devendra Kumar examined as court witness (CW1) in this case has admitted that there is no evidence to show as to who had talked on the phone and what were the contents of the talk. Learned counsel for the appellant has drawn our attention to the following statement of the witness, C.W. 1, in this regard :-

**lR;ohj ds eksckby lsV o UkEcj ls vFkok fdlh O;fDr ds eksckby lsV o uEcj ls mlus gh ckr fd;k vFkok fdlh vU; us ckr fd;k ;g ugh crk;k tk ldrk vkSj ftl fo'ks"k O;fDr us fjlho fd;k ;g ugh crk ldrk tk ldrkA

bu vfHkys[kksa ls D;k ckrsa gqbZ ;g ugh irkA dsoy ckrphr veqd uEcjks ds chp gqbZ ;g irk pykA ;g eksckby ml le; fdl O;fDr ds ikl FkkA vkSj dkSu ckr dj jgk Fkk ugh crk;k tk ldrkA**

Sri Veer Singh, learned counsel appearing on behalf of the appellant Raju has defended him by arguing that appellant Raju is not named in the F.I.R. He has not been assigned any role except that of driving the grey coloured Indica car. Raju has not been properly identified by any of the witnesses. There is no material on record in proof of the fact that he conspired with other co-accused persons for committing the murder of the deceased. Raju has no criminal history. He was not known to the witnesses prior to the occurrence. In this situation his proper identification by conducting identification parade, was a must in this case. But in absence of any such identification parade, the prosecution case against the appellant Raju cannot be relied on. Learned counsel for the appellant Raju has drawn the attention of this Court to the following statement of P.W. 2 Rajendra Prasad Pandey questioning the complicity of appellant Raju in this case :

**xksyh ekjus okyh dkj dks jktw pyk jgk FkkA eSusa vfer ukxiky dks ml oDr ;g ugha crk;k Fkk fd ml dkj dk ftlesa ekjus okys vk;s jktw pyk jgk Fkk D;ksafd ml oDr eq>s jktw dk uke ugh ekywe FkkA ?kVuk ds igys jktw dk uke ugh tkurk FkkA eSusa jktw dks ?kVuk ds igys dHkh ugha ns[kk FkkA /kVuk ds le; jktw dk uke irk gh ugha Fkk rks dSls crkrk njksxk th dksA jktw tc idM+k x;k Fkk rc Fkkus eSa x;k Fkk o mls ns[kk FkkA**

Learned counsel has argued that admittedly the appellant Raju has been identified by the sole witness of this case in the police lock up after Raju was arrested by the police and was kept in custody. Hence the conviction of Raju by the trial court is wholly illegal.

Smt. Archana Tyagi, learned counsel for the appellant Sukhmal Jain has assailed the legality of the conviction of Sukhmal Jain in this case on the ground that the name of Sukhmal Jain has been added in the F.I.R. as an after thought by adding a line at the end of the F.I.R. Learned counsel has further argued that Sukhmal Jain was not present inside the car or at any place where the deceased had gone or had taken tea during journey on the fateful day. She has argued that P.W. 2 has not spoken even a single word about the role of Sukhmal Jain during his examination in chief recorded on 5.9.2008. He has stated about the complicity of Sukhmal Jain for the first time when on the application of prosecution he was recalled on 13.10.2008. While drawing our attention to the examination in chief of P.W. 2 Rajendra Prasad Pandey learned counsel has contended that the only evidence regarding participation of Sukhmal Jain in the conspiracy is the following statement of P.W. 2 :-

**vfHk;qDr cCcy lq[key tSu o lR;ohj dk nksLr Fkk ogha ?kVuk ls igys Hkh CkCcy eq>ls lR;ohj o lq[key tSu ds lkFk fey Hkh pqdk FkkA tc vuwi'kgj esa fodkl lksyadh ds ;gakW pk; ih jgs Fks rc ogha ij ?kVuk okys fnu cOoy Hkh vk;k Fkk o mlus Hkh lkFk esa pk; ih FkhA**

In this regard, she has also drawn the attention of this Court to the following statement of P.W. 5 S.I. Karan Singh Chauhan, the I.O. of this case:-

**lq[key tSu ds fo:) 120 ch bl dkj.k yxkbZ xbZ fd bu rhuksa xokgksa us csbekuh dh otg ls lq[key tSu dk gkFk gksuk crk;k FkkA ;g lgh gS fd 120 ch ds fy, lHkh eqyfteku ls vijkf/kd "kM;a= gksuk t:jh gSaA bu rhuksa ds vykok xokg jktsUnz ik.Ms; o fot; dqekj f Learned counsel has vehemently argued that Sukhmal Jain has been implicated in this case only on the basis of suspicion and without any cogent and reliable evidence against him as is evident from the aforesaid statement of P.W. 5, I.O. of this case, who has clearly stated that no witness had informed him about the meeting of Sukhmal Jain with any of the accused persons prior to the occurrence. The I.O. has also admitted that there was no evidence of any quarrel between Sukhmal Jain and deceased. Learned counsel for the appellant Sukhmal Jain has argued that even though P.W. 1 Amit Nagpal has stated about some loan taken by Sukhmal Jain and has stated that Sukhmal Jain gave some post dated cheques to his father in lieu of loan taken by him and all those cheques were dishonoured due to insufficient funds but the aforesaid statement of P.W. 1 cannot be relied upon because it does not find support with the statement of P.W. 5, the I.O. of the case, who has categorically denied that any such statement was given to him by P.W. 1 Amit Nagpal during his interrogation under section 161 Cr.P.C..

Learned counsel has argued that the statement of PW1 about the taking of loan by Sukhmal Jain also does not find corroboration with his earlier statement given to the I.O. He has failed to produce any cogent evidence in support of the fact that his father had given Rs. One and half Crore as loan to Sukhmal Jain. In proof of the fact of personal enmity of deceased with Sukhmal Jain due to money transactions, the prosecution has produced only photcopies of some cheques allegedly drawn by Sukhmal Jain and his brother-in-law Manoj in favour of deceased. No reason has been shown by the witness PW1 for non-production of the originals. The reason as to why those cheques were not shown to the Investigating Officer during investigation also creates doubt.

Sri Dilip Kumar who has appeared for the appellant Dr. Satyavir Singh has argued that entire prosecution story is based on suspicion creating several doubts regarding its credibility and trustworthiness. Learned counsel has contended that material witnesses have been suppressed by the prosecution without assigning any reason for the same. For example Vijay Kumar Dhingra, who was present inside the car of the deceased at the time of occurrence and who is not even an accused in this case, has not been produced by the prosecution. Likewise Vijay Kumar Solanki who had taken the deceased to the hospital in the same car which the deceased was driving when he sustained fatal gun shot injury, has not been examined in this case. One more witness Sheetu son of PW2, from whom P.W. 1 Amit Nagpal had received the information for the first time about the murder of his father, has also not been produced by the prosecution. Sri Dilip Kumar has contended that suppression of material witnesses by prosecution surrounds the entire prosecution story with the clouds of mystery and suspicion. Learned counsel has argued that the motive assigned to Dr. Satyaveer Singh for hatching the conspiracy and facilitating the murder of deceased is baseless.

Learned counsel has further submitted that the only evidence regarding participation of Dr. Satyaveer Singh in the conspiracy is that while going in the car with the deceased he was talking with some body on his mobile phone and he asked the deceased to slow down the speed of car because the whisky in the glass was spilling. Sri Dileep Gupta has submitted that talking on mobile phone in the car by a person who is not even driving the car and asking the driver (deceased) to slow down the car because whisky was spilling from the glass is a natural conduct and only on the basis of this no inference can be drawn that Dr. Satyaveer was conspiring with any one for the murder of deceased and he deliberately coaxed him to slow down the car. In this regard learned counsel has drawn our attention to the following statement of P.W. 2 :

**dkj dks fd'kksjh yky ukxiky pyk jgs FksA ogkW ij dkj esa gh ,d ,d iSx cuk;kA Mk0 lR;ohj us dgk fd ge yksx ihrs Hkh FksA jksd dj iSx esa Mkyk o dkj pyrh jghA fQj pyrh xkMh es Mk0 lR;ohj us ukxiky ls dgk fd xkMh /kheh dj yks tke Nyd jgk gSA

tc ge yksx dkj esa Fks rc Mk0 lR;ohj dks Qksu vkrk Fkk o The submission of learned counsel is that except the aforesaid conduct of appellant- Dr. Satyaveer which conduct is very natural, there is no evidence on record that there was any prior meeting between the accused persons to hatch a conspiracy for murder of the deceased in such a planned way.

Apart from the above mentioned arguments learned counsel for all the appellants have challenged the reliability of FIR by pointing out towards overwriting, cutting and use of whitener on it. They have also pointed out towards various contradictions, omissions, improvements and anomalies in the statements of witnesses and have argued with vehemence that the learned court below, without considering these embellishments and discrepancies has blindly relied on their statements and has wrongly convicted the appellants on the basis of their uncorroborated testimony. Hence they have prayed that the impugned judgment, which is based on perverse and illegal findings be set aside.

Per contra learned AGA has contested the aforesaid submissions by arguing that the prosecution in this case has successfully proved its case beyond all shadows and reasonable doubts and therefore all the accused persons including the appellants and one more namely Ajit have rightly been convicted and sentenced by the learned trial court. Learned AGA has vehemently argued that it is well settled legal position that the court is not supposed to give undue importance to omissions and contradictions, which do not go to the heart of the matter. The submission of learned AGA is that although the prosecution has produced only two material witnesses in this case but only on this ground the prosecution case should not be disbelieved. Learned AGA has submitted that there is no requirement in law of evidence stating that a particular number of witnesses must be examined in order to prove/disapprove any fact. In this regard learned AGA has placed reliance on various judgments of Hon'ble Supreme Court and High Courts laying down the principle that the evidence must be weighed and not counted. Learned AGA has contended that both the factual witnesses PW1 and PW2 produced by the prosecution in this case were throughout cogent and consistent while deposing about the occurrence. He has submitted that the overwriting and application of whitener on the FIR has been satisfactorily explained by the witness PW6 in his statement. He has contended that even assuming the presence of some latches and lacunas on the part of the I.O. in this case, it will not give any benefit to the accused persons in view of the well settled legal position that defective investigation is not fatal to the prosecution. Learned AGA has submitted that FIR is not ante timed. PW3 S.I. Lal Mohd., who has conducted the inquest proceedings has been thoroughly cross-examined by the defence but the defence has not given even a suggestion to him that at the time of inquest, FIR was not in existence, hence the argument of learned counsel for the appellants in this regard is without any force. Lastly it has been argued by learned AGA that the witness Rajendra Prasad Pandey, PW2, has identified the appellant Raju in the open court, which is a substantive evidence as per the law laid down by Hon'ble Apex Court in the case of Malkhan Singh and others Vs. State of M.P. And others (2003)5 SCC 746 hence the prosecution story against the appellant Raju cannot be discredited only on the ground that no test identification parade was conducted.

Sri Gopal Chaturvedi, learned Senior Counsel, appearing for the complainant did not advance any argument separately and he expressed his intention to adopt the same submissions made by Learned AGA.

Now the only point for determination in this appeal is whether the prosecution has been able to prove its case beyond reasonable doubt against the appellants or against any one of them ?

Analysis of evidence:-

The prosecution in order to prove its case has led oral as well as documentary evidence. In oral evidence, it has examined seven witnesses in all out of which only two witnesses are witness of fact and the rest are formal in nature.

PW-1 is Amit Nagpal, who is the son of the deceased and the first informant of this case and PW-2 is Rajendra Prasad Pandey, who being the solitary eyewitness is the star witness of this case.

The description of rest of the witnesses is as follows:-

PW3 is S.I. Lal Mohammad, who prepared Panchayatnama, Challan Lash, Photo Nash and sent the dead body for post-mortem, PW4 is Dr. Aditya Pal Singh, who prepared post-mortem report, PW5 is S.I. Karan Singh Chauhan, who is investigating officer of this case, PW6 is Constable 1044 Dhyan Singh, who prepared the check FIR and corresponding G.D.- Ex. Ka11, and PW7 is Inspector Anil Kumar, the second investigating officer of this case, who submitted charge sheet against the appellants. There is also one CW1 Devendra Kumar, S.I. Servilance Cell, who obtained call details of accused appellants from various Mobile companies,.

Apart from the oral evidence as mentioned above, fourteen documents produced by the prosecution are available on record, which have been duly proved by the witnesses and marked as exhibits Ka 1 to Ka 14. These are as follows:-

1.	Written report 					Ex. Ka-1
 
2.	Inquest report					Ex. Ka-2
 
3.	Letter to R.I.					Ex. Ka-3
 
4.	Letter to C.M.O. 					Ex. Ka-4
 
5.	Challan Lash 					Ex. Ka-5
 
6.	Photo Lash 					Ex. Ka-6
 
7.	Post-mortem report 	 			Ex. Ka-7
 
8.	Check report					Ex. Ka-8
 
9.	Site plan						Ex. Ka-9
 
10.	Memo of recovery of driver's seat foam	Ex. Ka10
 
11.	Photostat copy of G.D.				 Ex. Ka11
 
12.	Charge-sheet					Ex. Ka-8
 
13.	Report of Forensic Science Lab.		Ex. Ka-12
 
14.	Report of Forensic Science Lab.		Ex. Ka-13
 
15.	Report of Forensic Science Lab.		Ex. Ka-14
 

 
	Besides the above, two coloured photographs of Car No. DL9CN 4200 were also produced by prosecution, which were marked as material Ex. 1 and Material Ex. 2.
 
	In order to ascertain whether  the prosecution has been successful in proving its case beyond all shadow of reasonable doubts or not the Court has to pay attention on the following main issues :-
 
i)F.I.R. {Whether there is any un-explained delay or  (Whether the FIR is ante-timed)}
 
ii)Time of occurrence (Whether the time coincides with medical evidence ?)
 
iii)Place of occurrence.
 
iv)Manner of occurrence. 
 
v)Motive (Whether the motive or the guiding force behind the occurrence was of such a strong character so as to persuade a person to commit such heinous offence like murder in this case?)
 
vi)Credibility of witnesses. 
 

vii) Proper identification of accused-persons by the witnesses (Whether there has been sufficient source of light? Whether the witnesses have prior acquaintance with accused persons ? Whether any test identification Parade has been conducted of the accused, who was not known to the witness prior to the occurrence?)

viii)The role of each accused in the occurrence considering the defence evidence like pleas of alibi etc. and whether their participation in the crime as a conspirator or as a member of unlawful assembly has been duly proved by the prosecution?

Now we proceed to test the facts of the present case on the touchstone of above mentioned issues.

FIR:- The first issue relates to the credibility of FIR. So far as the credibility of FIR in this case is concerned, learned counsel for the appellants have questioned its reliability by drawing our attention to the cuttings, overwriting and use of whitener on it. A perusal of FIR prima-facie raises suspicion and doubts for the reason that not only there is clear over writing on the dates mentioned in the written report (Ex. Ka-1) and the check F.I.R. (Ex. Ka-8) but also there is application of whitener on the column meant for mentioning the names of accused persons in the check report. The written report (Ex. Ka-1) also appears to be doubtful for the reason that its last line appears to have been inserted afterwards because apparently it has been written in a small space in comparatively small sized letters with lesser spacing between the lines. This fact finds corroboration with the corresponding G.D. (Ex. Ka-11) on a perusal of which it appears as if the names of Dr. Satyaveer and Sukhmal Chand Jain have been added at a later stage resulting in writing three lines relating to aforesaid appellants on the margin of G.D. PW6 Constable 1044 Dhyan Singh, who has prepared the check report and has made relevant entries in the corresponding G.D., has not given any satisfactory answer to the questions asked by learned defence counsel during his cross-examination with regard to all these discrepancies and and has evaded the questions by simply saying that what had happened was happened as a matter of routine or by mistake. The relevant extracts from the statement of PW6 in this regard are quoted below:-

",Q0vkbZ0vkj ua0 58 esa 5 ij vksoj jkbfVax gS tks lgou gks x;h FkhA eSaus eqyfteku ds uke ds [kkus esa lQsnk yxk;k Fkk vkSj iqu% eqyftekuksa ds uke fy[ks FksA "

"fpd ds igys i`"B fy[kus esa eq>s xyrh dk ?;ku ugha gqvkA nwljk i`"B fy[kus esa /;ku vk x;k FkkA vr% fpd iwjk fd;k fQj dkcZu yxkdj igyk i`"B lgh fd;kA eqyfteku dk uke lgh fy[kkA fQj rhljk o pkSFkk i`"B fy[kkA".

iz'u%& ;fn fpd esa eqyfteku dk uke lgh dj fy;s Fks vkSj fQj fpd dk rhljk o pkSFkk i`"B fy[kk fQj th0Mh0 esa eqyfteku esa jktsUnz] o fot; mRrj%& xokg us bldk mRrj ek= ;g fn;k fd tks dqN gqvk og :Vhu esa gqvkA

Admittedly, the first informant of this case was not present at the place and time of occurrence. What he has described in the F.I.R. is based on the information given to him by P.W. 2 Rajendra Prasad Pandey and his son Sheetu. Hence the F.I.R. in this case is not based on first hand information resulting in several important omissions in the FIR. It is true that the F.I.R. is not an encyclopaedia and it is also not necessary to name all the accused persons in it but the important facts must find place in it. A perusal of the F.I.R. (Ext. Ka. 1) in this case clearly shows that there is no mention about any role of appellants Babbal and Raju in it. No doubt, the names of appellant Raju and main assailant Ajit had come to light during investigation but the informant has not mentioned even a word about the fact that the grey coloured Indica car, which overtook the car of deceased, was driven by some other person whom the witness can recognise.

The most important fact which totally shatters the reliability of the F.I.R. is the statement of P.W. 1 to the effect that he wrote the F.I.R. on the dictation of Sub Inspector. In this regard the following statement of PW1 if worth mentioning:-

**tc ,Q0vkbZ0vkj0 fy[k jgs Fks rks njksxk th ls ckr djrs Fks tks og dgrs Fks fy[k nsrs FksA tks ugha dgrs Fks og ugha fy[krs FksA ;g ogh fjiksVZ gS tks izn'kZ d&1 gSA**

For the aforesaid reasons we are of the firm view that the F.I.R. in this case is wholly suspicious creating a doubt on the prosecution story.

The time of occurrence has also been disputed by learned counsel for the appellants on the same grounds pointing towards the over-writings on the dates mentioned in the written report and in the check FIR. Moreover, the special report has been sent to Magistrate on 29.3.2008 as is evident from the endorsement in red ink on the left side top corner or check FIR and the following admission of PW6 Dhyan Singh:

"vly rgjhj esa mij 29-3-08 fy[kk gSA ------ ;g lgh gS fd y?kq gLrk{kj ds uhps [email protected] iMh gSA bl ?kVuk dh ,l0 vkj 28-3-08 dks dhA th0Mh0 esa Hkstus dk ftdz ugha gSA ;g dguk xyr gS fd fpd o ,l0vkj0 [email protected] dks Hksth xbZ gksA tks flikgh ,l0vkj0 ysdj tk,xk mldh jokuxh th0Mh0 esa gksrh gSA [email protected] sdh th0Mh0 ess ,l0vkj0 Hkstus dk ftdz lgou jg x;k gSA

;g dguk xyr gS fd lkjh ,Q0vkbZ0vkj0 psat dh xbZ fQj ,l0vkj0 [email protected] Hkstk x;kA "

The check FIR shows that C.J.M. has seen it on 31.3.2008. This delay in sending the special report to the Magistrate has not been properly explained by the prosecution. All these facts create doubts in prosecution story with regard to exact time of occurrence.

The Hon'ble Apex Court in a recent case (2014)12 SCC 312 Sudarshan Vs. State of Maharashtra has reiterated the importance of timely dispatching the copy of FIR to Magistrate within 24 hours as under:-

"The necessity of sending the copy of the FIR to the Magistrate concerned hardly need to be emphasised. The primary purpose is to ensure that truthful version is recorded in the FIR and there is no manipulation or interpolation therein afterwards. For this reason, the statutory requirement is provided under Section 157 of the Code of Criminal Procedure, 1973."

So far as the place of occurrence in this case is concerned, according to prosecution the deceased had died while he was sitting inside the Alto Car No. DL 9CN/4200. The I.O. has recovered blood from the seat of the aforesaid car. Learned counsel for the appellants have disputed the place of occurrence by arguing that the I.O. has neither recovered any bullet from inside the car nor any glass or bottle of whisky has been recovered from inside the car, hence it cannot be said that the deceased was shot dead when he was driving the car.

In this regard learned counsel for the appellants have drawn our attention to some extracts of the statement of PW5 the I.O. Karan Singh which are reproduced as under:-

"oks xkMh ftlesa ?kVuk gqbZ mldks ?kVuk ds nwljs fnu ns[kk FkkA Fkkus ij ns[kh FkhA Fkkus esa dc vkSj dkSu yk;k ;g ekywe ugha fd;kA xkMh dks vxys fnu vUnj ls ugha ns[kkA ;g ekyqe gS fd M~kbfoax lhV ij eMZj gqvk gSA M~kbfoax lhV ij [kwu gS vFkok ugha ml fnu ugha ns[kkA eSaus rQrh'k vius jSfDlu o CyM M~kbfoax lhV ls fy;kA -----

dkj ftlesa ?kVuk gqbZ Fkh mldk uEcj Mh-,y-9 lh-,u- 4200 FkkA [email protected] dks lh-Mh- esa fy[kk gS tks egywd dh dkj ua0 Mh-,y-9 lh-,u- 4200 Fkkus ij [kMh djkbZ Fkh ;g lgh fy[kk gSA --------- xkMh ds vUnj vFkok ckgj Hkh dksbZ xksyh ugha feyhA "

Per contra learned AGA has contended that the occurrence has taken place on the road as is shown in the site plan. The recovery of blood from the car seat is proof of the fact that the deceased was sitting on driver's seat at the time when he was shot dead. All the fire shots have hit the right side of deceased's body, which corroborates the prosecution case that deceased was sitting on the driver's seat when he was shot dead. Therefore, only on the ground that I.O. has not recovered any empty cartridge from the car, the place of occurrence cannot be disputed.

There appears force in the aforesaid arguments advanced by learned AGA. The description of ante mortem injuries in post-mortem report shows that there are three entry wounds but only one exit would. Hence non recovery of any pellets from inside the car has little relevance and in our view the place of occurrence is found well established by the prosecution.

The manner of occurrence has been assailed by the defence on the ground that there is a clear mention in the FIR that two fires were shot by the assailant but the doctor has found three wounds of entry and the witnesses have improved their earlier version recorded by I.O. under section 161 Cr.P.C., afterwards by deposing, in court that two or three fires were made by the assailant, which is evident from the statement of PW5 the Investigating officer, who has stated as under:-

"nks Qk;j gksus dh ckr dgh FkhA nks rhu Qk;j dh ckr ugha crkbZ FkhA "

In our view this a minor discrepancy. A person present at the place of firing cannot be expected to count the exact numbers of fire shorts. The description of ante-mortem injuries in the post-mortem report coincides with the manner of occurrence as told by the eyewitness PW2. Hence in our view there appears no discrepancy with regard to the manner of occurrence.

Now comes the motive. The prosecution has alleged that there was personal enmity of Dr. Satyaveer and Sukhmal Jain with the deceased due to some money transactions. It has been alleged that Dr. Satyaveer had borrowed Rs. 40 lacs from the deceased and appellant Sukhmal Jain had borrowed about one and a half Crores from the deceased. It has been further alleged by the prosecution that as both of them had no intention to repay the same they hatched a conspiracy to eliminate the deceased Kishori Lal Nagpal.

Sri Dileep Gupta, learned counsel appearing for the appellant Dr. Satyaveer has assailed the aforesaid motive by drawing our attention to the following statement of P.W. 1 where he has admitted that in lieu of the aforesaid loan of Rs. 40 lacs, Dr. Satyaveer Singh had mortgaged the documents of landed property belonging to his daughter, situated at Hapur, in favour of the deceased :

**Mk0 lR;ohj ls esjs firk th dk ysu nsu FkkA Mk0 lR;ohj us esjs firk th ls 40 yk[k m/kkj esa fy;s FksA blds ,ot esa mlus viuh gkiqM+ okyh tehu] tks mldh csVh ds uke Fkh] fxjoh j[kh FkhA bl fxjoh ds ckcr fy[kk i Sri Dileep Gupta has contended that if the documents of the landed property of Dr. Satlyaveer were kept with the deceased, Dr. Satyaveer was not going to be benefited in any way by the murder of the deceased. Thus there appears no reason with Dr. Satyaveer to intend to murder of the deceased.

With regard to enmity between Sukhmal Jain and the deceased, it has been alleged by the prosecution that Sukhmal Jain had borrowed huge amount of money from the deceased, which he did not intend to return, which is evident from the perusal of cheques issued by Sukhmal Jain in favour of the deceased, the photocopies of which are available on record, which shows that all those cheques have been returned by the bank either for the reason of insufficient fund in the account or for some other reason.

Smt. Archana Tyagi, learned counsel for appellant Sukhmal Jain has combated the aforesaid argument by drawing our attention to the following statement of PW5, the I.O. of the case, to show that no such evidence was given to the I.O. during investigation:-

** Mk0 lR;ohj eqyfte dk e`rd ls izkiVhZ Mhfyax dk O;kikj esa fdrus o"kZ ls lk{khnkjh Fkh ;k lq[key tSu dh e`rd ds lkFk dc fgLlsnkjh gqbZ bldh vof/k esjh tkudkjh esa ugh gSA dksbZ bldk lk{; ugh gSA fdruk :i;k fdl izdkj gM+ik x;k ;g esjh foospuk rd esjh tkudkjh esa ugha vk ik;k FkkA

lq[key tSu dh e`rd ls lk>snkjh ?kVuk gksus ds ckn dksbZ >xMk gqvk gks ,slh dksbZ lk{; ugha feyh FkhA flQZ xokgksa ds c;ku ds vk/kkj ij geus fy[kk fd lq[key tSu us iSlk gM+ius ds fy, "kM;U= fd;kA **

** eq>s vfer ukxiky us ;g c;ku ugh fn;k Fkk fd lq[key tSus ds lkFk esjs firk dk djhc Ms< djksM+ dk Fkk ;g iSlk lq[key tSu dks esjs firk dks nsuk Fkk ftlds cnys esa mlus esjs ikik dks pSd vius o viuh iRuh ds uke ls ns j[ks gSA ;g c;ku Hkh ugha fn;k fd tc ;g pSd cSad es dS'k gksus ds fy, Mkys rks okmUl gks x,A ------------------------------------ mlus ;g c;ku Hkh ugha fn;k Fkk fd lq[key tSu us vius lkys Hkkuts ds Hkh psd fn;k FkkA og Hkh fitk th us cSad esa Mkys Fks tks okmUl gks x, FksA ;g Hkh c;ku ugh fn;k Fkk fd lq[key tSu us vius o viuh iRuh jhrk tSu o lkys eukst tSu dk pSd esjs firk o T;ksrh ukxiky o iq=h ds0,u0 ukxik ds uke ls fn, Fks dqN iksLV MsVsM Fks lHkh okmUl gks x, FksA"

The appellants Sukhmal Jain, Dri Satyaveer and the deceased Kishori Lal were business partners dealing with property business, hence only the basis of photocopies of some bounced cheques drawn by Sukhmal Jain or his brother-in-law in favour of the deceased it cannot be assumed that Rs. One and a half crore was borrowed by Sukhmal Jain from the deceased. No case under section 138 of the Negotiable Instrument Act was instituted against Sukhmal Jain by the deceased, despite the fact that the cheques got bounced. The prosecution has no where explained the reason why the original cheques returned by the Banks have not been produced in the court and why only photocopies were produced.

Section 64 of the Indian Evidence Act is a mandatory provision, which provides that documents must be proved by primary evidence except under certain circumstances as mentioned in that section.

Hence we are of the firm view that prosecution has failed to establish the fact of personal enmity between the deceased and Sukhmal Jain. Moreover, personal enmity is a double edged weapon. It can be a ground to commit a crime against the other at the same time it may be a reason for the other to falsely implicate the opposite party. Hence only on the ground that there was personal enmity between the appellants Sukhmal Jain and Dr. Satyaveer with the deceased it cannot be said that all of them hatched a conspiracy in such a planned manner.

In Santosh Kumar Singh Vs. State through C.B.I.; (2010) 9 SCC 747 the Supreme Court has held :

"motive alone in the absence of any other circumstantial evidence would not be sufficient to convict the appellant."

Learned AGA has argued with vehemence that it is a case of direct evidence where the motive has little relevance and the entire prosecution case cannot be discarded even if the prosecution fails to establish the motive beyond doubt.

There is no doubt that in case of direct evidence, the prosecution is not obliged to prove the motive but the quality of the evidence adduced by prosecution must be such so as to inspire confidence.

So far as the quality of evidence and the credibility of witness in the present case is concerned, it has been seen earlier that the prosecution has produced only two eyewitnesses of fact in this case, out of those two, only one PW2 is the eyewitness.

There is no doubt that according to well settled legal position, it is the quality and not the quantity, which matters and conviction can be based on the sole testimony of a witness if it finds corroboration with the other evidence available on record and inspires confidence. It is also well settled that minor discrepancies occurring in the statements of witnesses should be ignored. However, on a close scrutiny of the statements of the witnesses produced by the prosecution in this case, we find that there are serious inconsistencies, discrepancies, omissions, improvements and contradictions at several places affecting the core of the prosecution case, raising doubts about their truthfulness and resultantly making the prosecution case unreliable and unworthy of credit. In this regard, the following extracts from the deposition of PW1 and PW2 can be looked into as an example.

PW1:- ",Q0vkbZ0vkj0 fy[kkus ls igys eq>s ?kVuk esa cCcy dk 'kkfey gksuk irk Fkk ysfdu jktw dk ugha FkkA jktw dks eq>s rQrh'k ds nkSjku njksxkth us eq>s crk;k FkkA cCcy dk uke ,Q0vkbZ0vkj0 esa ugha fy[kk;k Fkk vkSj u 161 Cr.P.C. ds C;ku esa njksxkth dks crk;k FkkA uk crkuk o uk fy[kus dh dksbZ otg ugha FkhA "

PW2:- ,Q0vkbZ0vkj0 fy[kus ls igys jktw o cCcy dks eSa tkurk FkkA buds uke vfer ukxiky dks eSaus crk;s FksA eSus jktw o cCcy ds uke foospuk vf/kdkjh dks ugha crk;k Fkk eSaus ;g Hkh ugh crk;k Fkk foospuk vf/kdkjh dks jktw o cCcy dks igys ls tkurk FkkA eSa ml le; ijs'kkuh ls fnekx [kjkc FkkA ,Q0vkbZ0vkj0 fy[kk;s tkus ds ckn budk uke /;ku esa vk x;k FkkA budk uke njksxk th dks C;ku nsus ds ckn esa /;ku esa vk;k FkkA njksxk th c;ku nsus ds 2&4&6 fnu ckn fnekx esa tksj fn;k fd budks dgha ns[k j[kk gS] rc bu nksuks ds uke ;kn vk;s FksA

buds uke ;kn vk tkus ds ckn o vnkyr esa C;ku nsus rd eSaus buds uke flQZ ukxiky ds yM+ds vfer dks crk;k Fkk o foospuk vf/kdkjh dks buds uke crkus ugh x;k FkkA ----

vfer ukxiky dks eSaus ;g ckr ^^vfHk;qDr cCcy] lq[key tSu o lR;ohj dk nksLr FkkA og ?kVuk ls igys Hkh cCcy eq>ls o lR;ohj] lq[key tSu ds lkFk feyk Hkh pqdk gSA tc vuwi'kgj esa fodkl lksyadh ds ;gkWa pk; ih jgs Fks] rc ogh ?kVuk okys fnu cCcy Hkh vk;k Fkk] mlus Hkh lkFk esa pk; ih FkhA ;g pk; ihus okyh ckr ?kVuk ls vk/kk ?kaVk igys dh gSA Mk0 lR;ohj us pk; ihus ds ckn cCcy dks ,d cksry 'kjkc nh Fkh lR;ohj us cCcy ls dgk fd vthr ls cksy nsuk fd ge yksx vc fnYyh dh vksj tk jgs gSA vthr us gh xksyh ekjh Fkh ;g cCcy dk lkFkh gS^^ eSaus ugh crkbZ fd ,Q0vkbZ0vkj0 fy[kus ls igysA esjk ml le; fnekx ijs'kku Fkk blh ls vfer ukxiky dks ugha crkbZ FkhA eSus ;g ckr njksxk th dks crkbZ Fkh] mUgksaus fy[kk ;k ugha eSa ugha tkurkA ;fn njksxk th us ugha fy[kh ;g ckr rks dkj.k ugha crk ldrkA

Both the prosecution witnesses have been recalled by the prosecution after expiry of more than one month and they have improved their earlier version by adding some new facts in it i.e. about the complicity of Babbal, about the post dated cheques given by Sukhmal Jain and about the identity of appellant Raju, etc.. Their deposition in court do not find corroboration with their earlier statement recorded by the I.O. under Section 161 Cr.P.C. On an overall appreciation of the depositions of the only two material witnesses, produced by the prosecution, we are of the firm view that their depositions do not inspire confidence in us and cannot be relied upon and it is neither safe nor proper to convict the appellants on the basis of their shaky and uncorroborated statements.

The next issue relates to the source of light and identification of accused persons by the witnesses. So far as appellants Sukhmal Jain, Dr. Satyaveer and Babbal are concerned, all of them had prior acquaintance with the witnesses. Hence there was no question of any mistaken identity with regard to them. The defence has not disputed any thing about their identification. All the aforesaid three appellants have not directly participated in the crime. They have been involved in this case as conspirators and for having a common intention to kill the deceased. Among all the appellants, it is only with regard to the appellant Raju, who having no prior acquaintance with the solitary eyewitness PW2, that the defence has raised the issue of identification. By the following admission of PW2 R.P. Pandey, it is quite evident that PW2 had no prior acquaintance with appellant Raju:-

"xksyh ekjus okyh dkj dks jktw pyk jgk FkkA eSaus vfer ukxiky dks ml oDr ;g ugha crk;k Fkk fd ml dkj dk ftlesa ekjus okys vk;s jktw pyk jgk Fkk D;ksafd ml oDr eq>s jktw dk uke ugha ekywe FkkA ?kVuk ds igys jktw dk uke ugha tkurk FkkA eSaus jktw dks ?kVuk ds igys dHkh ugha ns[kk FkkA ?kVuk ds le; jktw dk uke irk gh ugha Fkk rks dSls crkrk njksxkth dksA "

The role assigned to appellant Raju is that he was driving the grey Indica car from which the main assailant Ajit stepped down and opened fire on the deceased. Now the question is whether there was sufficient source of light at the spot so as to enable the sole eyewitness PW2 R. P. Pandey to properly identify the appellant Raju, who was admittedly not known to him prior to the occurrence and who had not even come out of the car and remained seated on the driver's seat as per the prosecution story.

Admittedly, the occurrence has taken place on the road near village Karanpur. The site plan shows that on both the sides of road either there are empty fields or Jungle. The time of occurrence is about 9.00 P.M. The site plan shows that there was no source of light at the spot and there could be no such source except the headlights of both the cars. The statement of PW2 also reveals that when the assailant Ajit started firing, PW2, out of fear bowed down his head, which is evident from his statement reproduced below:-

"eSaus nks rhu xksyh dh vkokt lquh fQj vius cpko esa flj uhps dj fy;k FkkA "

Under these circumstances it cannot be said that PW2 could have been able to properly identify the appellant Raju. No identification parade has been held in this case and witness PW2 R.P. Pandey has identified the appellant Raju for first time in the open Court.

In Balbir Vs. Vazir; (2014) 12 SCC 670; there were almost the same facts before the Hon'ble Supreme Court. The witnesses of incident did not know all the assailants but they claimed that they could identify the assailants. However, the prosecution failed to hold test identification parade. In that case too, it was argued by the prosecution that identification made in open court is sufficient and reliance had been placed on Malkhan Singh and others Vs. State of M.P. and others, (2003)5 SCC 746 case in which the supreme Court has held that:-

"the evidence of identification in court is a substantive evidence."

Distinguishing the facts of both the above cited cases, their Lordships of Hon'ble Supreme Court in Balbir's case (supra) held that :

"What weight must be attached to the evidence of identification in court, is a matter for the court to examine. Malkhan Singh's case was a case of gang rape. The evidence of the prosecutrix was found by the court implicitly reliable. Moreover, all the accused persons had committed rape with the prosecutrix one by one, therefore, the prosecutrix had the reason to remember the faces of the accused persons due to traumatic experience she had gone through, the faces of accused persons must have been imprinted in her memory and there was no chance of her making a mistake about their identity. In the backdrop of these facts, the identification of accused persons by the prosecutrix for the first time in open court was held reliable in Malkhan Singh's case."

Testing the facts of the case in hand on the touch stone of the law laid down by the Apex Court in Balbir Vs Vazir (supra) it is clearly evident that the facts of the present case like that of Vazir's case are also entirely different from the facts of Malkhan Singh's case. In the present case the incident does not seem to have lasted even for five minutes and in a flash of moment the entire occurrence has taken place. There is no dispute with regard to the fact that the only eyewitness of this case P.W. 2 was sitting inside the car and he had bowed down his head out of fear. Hence failure to hold any test identification parade in the present case is a serious draw back raising reasonable doubts on the complicity of appellant Raju, who admittedly was not known to the witnesses prior to the occurrence. P.W. 2, the only eyewitness of this case, has categorically admitted that he had never seen Raju before the occurrence neither he knew his name. He has also admitted that he saw Raju for the first time in the police lock up. Hence relying on the law laid down by Apex Court in the recent case of Balbir Vs. Vazir (supra) we hold that failure to hold Test Identification Parade in the instant case has proved fatal to prosecution with regard to complicity of appellant Raju. For the aforesaid reason the role assigned to appellant Raju i.e. driving of the car from which the main assailant Ajit had come, loses its importance. So far as the roles assigned to remaining appellants i.e. Dr. Satyaveer, Sukhmal Jain and Babbal are concerned, all of them have been implicated in this case as participants in the conspiracy hatched for the purpose of eliminating the deceased with the help of a contract killer. None of the appellants has used any weapon or committed any violence.

By the impugned judgment all have been sentenced for life imprisonment and fine of Rs. 50,000/- for their conviction under section 302 read with section 120B I.P.C. Appellants Dr. Satyaveer and Raju have also been punished with life imprisonment and fine of Rs. 1,00,000/- (one lac) under section 302 read with section 34 of I.P.C.

The law regarding application of section 34 of I.P.C. And Section 120B of I.P.C. has been interpreted by Hon'ble Apex Court in a catena of judgments.

The hon'ble Apex Court in the case of Bhaba Nanda Sarma Vs. State of Assam, AIR 1977 SC 2252 has held as under:-

"It is, however, necessary that before an interference as to common intention is drawn, the circumstances must establish beyond doubt as to meeting of minds and fusion of ideas resulting in the act in question.

The Hon'ble Apex Court in the case of Dharam Pal Vs. State of Haryana, AIR 1978 SC 1492 has held as under:-

"Mere presence of a person does not prove common intention."

In the landmark case of Joginder Singh Vs. State of Haryana, AIR 1994 SC 461 the Supreme Court has observed as follows:-

"It is one of the settled principles of law that the common intention must be anterior in time to the commission of the crime. It is also equally settled law that the intention of the individual has to be inferred from the overt act or conduct or from other relevant circumstances. Therefore, the totality of the circumstances must be taken into consideration in order to arrive at a conclusion whether the accused had a common intention to commit the offence under which they could be convicted.

In Goudappa Vs. State of Karnataka, reported in (2013)3 SCC 675 it has been held that:-

"Facts of each case have to be carefully scrutinised and common intention is to be gathered from the manner in which crime has been committed, conduct of accused soon before and after occurrence, determination and concern with with crime was committed, weapon carried by accused and from nature of injury caused by one or some of them. Thus the totality of circumstances must be taken into consideration."

In a recent case, Raju Vs. State of Chhatisgarh reported in (2014)9 SCC 299 the Apex Court, while referring its earlier decision rendered in the case of Baliya Vs. State of M.P. (2012) 9 SCC 696 has held that:-

"It is settled law that common intention and conspiracy are matters of inference and if, while drawing n inference any benefit of doubt creeps in, it must go to the accused."

In the case of Baliya Vs. State of M.P. (supra) the Hon'ble Apex Court while interpreting the law regarding criminal conspiracy has observed as under:-

"The offence of criminal conspiracy has its foundation in an agreement to commit an offence or to achieve a lawful object through unlawful means. Such a conspiracy would rarely be hatched in the open and, therefore, direct evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the court in drawing such an inference must consider whether the basic facts i.e. circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and thereafter, whether from such proved and established circumstances no other conclusion except that the accused had agreed to commit an offence can be drawn. Naturally in evaluating the proved circumstances for the purposes of drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused."

Saju Vs. State of Kerala AIR 2001 SC 175 is also an important case where the Hon'ble Supreme Court has held as under:-

"Mere evidence of association is not sufficient to lead to an inference of conspiracy. Mere meeting would by itself not be sufficient to infer the existence of a criminal conspiracy. When there is no suggestion, much less legal evidence to the effect that both the accused were so intimate which would have compelled accused-1 to be a conspirator for the killing of the deceased at the instance of the appellant, accused-1 was also not stated to be a habitual criminal, the applicant could not be convicted with the aid of section 120B."

The Apex Court's judgment in the case of P. K. Narayanan Vs. State of Kerala 1995(1) SCC 142 lays down the clear law that,

"An offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence."

The case of Ram Nath Madho Prasad Vs. State of M.P. AIR 1953 SC 420 is another example clarifying the legal position, which mandates:-

"Where there was no evidence whatsoever of any premeditation or of a pre-arranged plan by the assailants of murdering the deceased, the mere fact that all the accused were seen at the spot at the time of firing could not be held sufficient to prove or even infer a common intention."

Thus, the law is found well established that conspiracy cannot be proved merely on the basis of inferences. The inferences have to be backed by evidence.

On a close scrutiny of the facts of the case in hand in wake of the law cited above, it appears that the names of all the appellants Sukhmal Jain, Dr. Satyaveer, Babbal and Raju have surfaced only on the basis of suspicion due to the reason that there were inimical relations between Dr. Satyaveer, Sukhmal Jain and the deceased due to some money transactions.

The above suspicion appears to be groundless. If there was enmity between Dr. Satyaveer and the deceased there was no reason for the deceased to go to Bulandshahar in the car of Dr. Satyaveer. Sukhmal Jain was not even present anywhere either at the house of Vikas Solanki or at the Ganga Bridge. As seen earlier, Raju's identity is altogether surrounded with suspicion and there is no evidence about any meeting between Babbal and other appellants prior to the occurrence. Babbal is not even named in the FIR.

The well settled law, which has recently been reiterated by the Supreme Court in the case of Sampath Kumar Vs. Inspector of Police, Krishnagiri; 2012 (77) ACC 251 is that

"suspicion, however, strong - cannot be a substitute of evidence."

There exist some more questions, which remained unanswered by the prosecution making its story unreliable. Here are some examples:-

(a) Admittedly the deceased Kishori Lal Nagpal was a rich person. According to the statement of P.W. 1 he was used to wear expensive rings in his both hands . At the time of occurrence he was going to purchase land and also to procure a contract for Ganga bridge. Therefore, in preponderance of probabilities, he must have been carrying with him a considerable amount of cash, cheque book or ATM Card/ Credit Card. But nothing has been recovered from his belongings.

(b) There is no explanation with the prosecution as to why these three important witnesses (1) Vijay Kumar Dhingra, who was also accompanying the deceased, (2) Vikas Solanki, who had driven away the car of the deceased to the hospital and on whose residence the deceased, the accused persons and the witness R.P. Pandey had tea together and (3) son of PW2 Sheetu, who had for the first time given the information about the occurrence to P.W. 1, were not produced by the prosecution? The law is well settled that withholding of material witnesses without any reason makes the prosecution story doubtful. In Rohtash Kumar Vs. State of Haryana; 2013 (3) RCR (Crl.) 355, the Supreme Court has reiterated the above law as follows:-

"If the material witness has been withheld, the court can draw an adverse inference against the prosecution as has been provided under Section 114 of the Evidence Act."

The submissions made by learned counsel for the appellants appear to have force in view of the findings arrived at by us while discussing the relevant issues with regard to time, place, manner of occurrence, proper identification and credibility of witnesses etc. In our considered view the prosecution has miserably failed to lead any cogent and convincing evidence with regard to complicity of appellants Sukhmal Jain, Dr. Satyaveer and Babbal as participants in the conspiracy of murder of the deceased and due to absolute lack of proper identification, the complicity of appellant Raju is also doubtful.

In the totality of the circumstances, we are of the firm view that the prosecution has not been able to prove its case against the appellants, who all, in our considered opinion are entitled to benefit of doubt. As a result, all these appeals succeed and are hereby allowed. The impugned judgment dated 4.2.2011 is set aside. All the appellants stand acquitted of the charges framed against them.

All the appellants are in jail. They be released from jail if they are not wanted in any other case.

However, keeping in view the provisions of Section 437-A Cr.P.C., each appellant is directed to forthwith furnish a personal bond in the sum of Rs. One lakh and two reliable sureties in the like amount before the trial court, (which shall be effective for a period of six months) to the effect that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellants on receipt of notice thereof shall appear before the Hon'ble Supreme Court.

Dated:- 11.9.2015

S.B/PCL