Uttarakhand High Court

CRLA/152/2015 on 15 December, 2021

                                                     RESERVED JUDGMENT

       IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
                             AND
         THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA


             CRIMINAL APPEAL No. 152 OF 2015

                 JUDGMENT RESERVED      :   21ST SEPTEMBER, 2021
                 JUDGMENT DELIVERED :       15TH DECEMBER, 2021



 Between:

 Praneet Bhati.
                                                               ...Appellant

 and


 Central Bureau of Investigation.

                                                          ...Respondent

Counsel for the appellant. : Mr. Subhash Batra and Mr. Lalit Sharma, the learned counsel.

Counsel for the respondent. : Mr. Sandeep Tandon, the learned counsel.

The Court made the following:

JUDGMENT : (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)

Aggrieved by the judgment dated

28.02.2015/10.03.2015, passed by the IIIrd Additional

Sessions Judge/Special Judge (C.B.I.), Dehradun, the appellant, Praneet Bhati, has filed the present appeal

before this Court.

2. By the said judgment, the appellant has been

convicted for the offences under Section 302 read with

Section 120-B of the Indian Penal Code (for short "the

IPC"). For offence under Section 302/120B IPC, he has

been sentenced to life imprisonment. He has further

been directed to pay a fine of Rs. 1,00,000/-, and to

further undergo a simple imprisonment of one year in

default thereof. He was further convicted for offences

under Section 307 read with Section 120-B IPC, and

sentenced to undergo ten years' rigorous imprisonment.

He was directed to pay a fine of Rs. 10,000/-, and to

further undergo six months of simple imprisonment in

default thereof. Furthermore, he has been convicted for

the offences under Section 326 read with Section 120-B

IPC and sentenced to undergo seven years rigorous

imprisonment. He was directed to pay a fine of Rs.

5,000/-, and to undergo one month of additional simple

imprisonment in default thereof. All the sentences were

directed to run concurrently.

3. Briefly, the facts of the case are that on

13.09.1992, Anil Kumar Bhati (P.W. 39), the nephew of

one of the deceased person, namely Mahendra Singh

Bhati, lodged a written report (Ex. Ka. 30) with the Police

Station Dadri, District Ghaziabad, Uttar Pradesh, wherein

he claimed that on 13.09.1992, around 06:30 PM,

Mahendra Singh Bhati, the M.L.A. Dadri Constituency,

Ghaziabad, received a telephonic call from Mool Chand

Tiwari, Inspector C.B.C.I.D. Mool Chand Tiwari informed

Mahendra Singh Bhati that his presence is required in

order to record his statement for the murder of Santram.

Therefore, he is directed to come to village Bhangel.

Upon this information, Mahendra Singh Bhati left in his

Maruti car, along with his driver, Devendra, and his

gunman, Vedram Kaushik (P.W. 31), for village Bhangel.

On the way, his friend, Udai Ram Arya also got into the

car, and sat in the back seat. However, as the Dadri

railway crossing gate, on the way to village Bhangel, was

closed, Mahendra Singh Bhati's car stopped at the railway

crossing gate. According to the complainant, he and

Dharamveer Singh also reached the railway crossing gate

on their motorcycle. As soon as the railway crossing gate

opened, around 07:00 P.M., and as soon as the driver,

Devendra, started the car, about seven to eight unknown

persons fired at the car. Consequently, both Mahendra

Singh Bhati, and Udai Prakash Arya died on the spot. The

gunman, Vedram Kaushik (P.W. 31), was also injured.

The driver, Devendra ran away as soon as the firing was

started. Near the car of Mahendra Singh Bhati, in

another car, O.P. Kayal (P.W. 35) was also injured.

Moreover, Dharamveer Singh, who was on his bicycle,

and was standing near the railway crossing gate, he, too,

was injured. O.P. Kayal (P.W. 35) was rushed to Yashoda

Hospital; the gunman, Vedram Kaushik (P.W. 31), was

taken to the Narendra Mohan Hospital; the bicyclist,

Dharamveer Singh was carried to the District Hospital for

medical treatment. After killing Mahendra Singh Bhati,

the killers sat in a Maruti car, and escaped. When they

were fleeing, they shouted "try again to have Prakash

Pehelwan contest the elections". According to the

complainant, Amar Singh, Omveer Singh, Manveer Singh,

Prakash, Atar Sigh, Dharamveer Singh and others,

standing at the scene of the crime, have seen the

incident. Although, these eye-witnesses have recognized

the assailants, due to fear that the assailants were

armed, they did not try to catch hold of them.

4. The complainant, Anil Kumar Bhati (P.W.39),

dictated the complaint (Ex. Ka. 30) to Narendra Singh

Bhati (P.W. 10), the M.L.A. of Secunderabad. The

complaint (Ex. Ka. 30) was lodged with the Police Station

Dadri, Ghaziabad. On the basis of this complaint (Ex. Ka.

30), a formal FIR (Ex. Ka. 39), namely FIR No. 371/92,

was registered, for offences under Sections 147, 148,

149, 302 and 307 IPC.

5. Initially, the investigation was handed over to

the S.S.I., Jagdish Singh (P.W. 21). Since a sitting

M.L.A., Mahendra Singh Bhati, was assassinated by

unknown persons, his assassination generated sufficient

heat. But as the investigation by the police was not upto

the mark, on 10.08.1993, the investigation was

transferred to the Central Bureau of Investigation (for

short "the CBI") by notification No.228/58/92 A.B.D.

6. Initially, the CBI registered the case as RC-

1(S)/93/SIU-I, for offences under Section 147, 148, 149,

302, 307, 109, 120-B IPC, and under Section 3 of the

Terrorist and Disruptive Activities (Prevention) Act, 1987

(for short "TADA").

7. After completing the investigation, the CBI

submitted its charge-sheet not only against the present

appellant, Praneet Bhati, but also against the other co-

accused persons, namely Dharmpal Singh Yadav @ D.P.

Yadav, Pal Singh @ Pala @ Lakkar @ Harpal Singh, Karan

Yadav, Tejpal Bhati, Praneet Bhati, Maharaj Singh, Jaipal

Gujjar and Aulad Ali.

8. By order dated 07.01.1996, the Special Judicial

Magistrate, CBI, Dehradun, took cognizance against the

appellant for the offences under Sections 302, 307 and

326 read with Section 120-B IPC.

9. Since the other co-accused persons were being

tried under a different Session Case, by order dated

23.04.2001, the Special Court, CBI, consolidated the

Session Trial No. 87 of 2000, "C.B.I. v. Tejpal Bhati and

others", with Session Trial No. 48 of 2001, "C.B.I. v. D.P.

Yadav".

10. In order to prove its case, the CBI examined

forty-one witnesses, submitted 115 documents, and

produced 159 material objects.

11. During the trial four co-accused persons

expired, namely, Maharaj Singh, Tejpal Bhati, Jaipal

Gujjar & Aulad Ali. Therefore, the trial qua them abated.

12. After appreciating the evidence produced by

the prosecution, by a common judgment dated

10.03.2015, the learned Trial Court convicted and

sentenced the present appellant as aforementioned.

Although, a number of appeals have been filed by other

co-accused persons, presently we shall deal with the

appeal filed by the appellant, Praneet Bhati. The other

appeals shall be decided separately.

13. Mr. Subhash Batra, the learned counsel for the

appellant has raised the following contentions :

(i) The complainant, Anil Kumar Bhati (P.W. 39)

does not claim either in the FIR, or in his testimony that

the appellant was the assailant who caused the death of

both Mahendra Singh Bhati and of Uday Prakash Arya.

Thus, the case against the appellant is based on

circumstantial evidence. However, the prosecution has

failed to forge a chain of circumstances which would

unerringly point to the guilt of the accused.

(ii) The prosecution has woven two different

motives for explaining the criminal conspiracy hatched by

the accused persons: i) there was a gang war between

two different gangs; one belonging to Satbir Gujjar, and

the other belonging to Mahendra Singh Fauji. While the

deceased, Mahendra Singh Bhati supported the former

gang, D. P. Yadav, and other accused persons in the

present case, supported the latter gang. ii) Tejpal Bhati,

the appellant's father, and the appellant bore a grudge

against Mahendra Singh Bhati, as they were under the

impression that Mahendra Singh Bhati had gotten the

appellant's elder brother killed in a car accident. Hence,

Tejpal Bhati, and the appellant joined hands with D. P.

Yadav and other co-accused persons in order to get rid of

Mahendra Singh Bhati. But despite the tall claims, the

prosecution has failed to prove these two motives.

Therefore, the motive is conspicuously missing in the

present case.

(iii) In fact, Praveen Bhati had died in an accident.

Even if Tejpal Bhati and the appellant imagined that

Mahendra Singh Bhati was behind the said accident, even

then they never filed an FIR against Mahendra Singh

Bhati with regard to the said accident. Therefore, there is

no reason for the appellant and his father, Tejpal Bhati,

to enter into a conspiracy with D. P. Yadav and the other

co-accused persons.

(iii-a) Even Sameer Bhati (P. W. 32), the son of

the deceased Mahendra Singh Bhati, and Anil Kumar

Bhati (P. W. 39), the nephew of the deceased, Mahendra

Singh Bhati, do not claim about any animosity between

the appellant's father, Tejpal Bhati and the appellant, on

the one hand, and the deceased, Mahendra Singh Bhati,

on the other hand. Therefore, the motive attributed to

the appellant is unsupported by any cogent and

convincing evidence.

(iii-b) HCP Horam Singh (P. W. 34), the gunman

of Tejpal Bhati, and who resided at his house, admitted in

his testimony that the FIR about the car accident was

lodged against unknown persons. Neither Tejpal Bhati,

nor the appellant ever alleged that Mahendra Singh Bhati

was the master-mind behind the said car accident.

Thus, the story behind the alleged motive falls apart.

(iv) The learned Trial Court has relied upon the

complaint (Ex. Ka. 95) given by Sameer Bhati (P. W. 32),

the son of the deceased Mahendra Singh Bhati, allegedly

written by his father to the police, wherein he had

claimed that his life is under threat from Pal Singh,

Mahendra Singh Jiju and from other gangsters. However,

the said complaint (Ex. Ka. 95) does not mention the

appellant's name. The word "gangsters" could not include

the appellant. For, the appellant has never been involved

in any criminal case prior to the present one. Therefore,

he cannot be classified as a "gangster".

(v) The prosecution has submitted a photocopy of

the complaint (Ex. Ka. 95). However, the secondary

evidence could not have been admitted as the

requirements of Section 65 and 66 of the Evidence Act

have not been fulfilled by the prosecution. Hence, the

learned Trial Court has erred in admitting the said

complaint (Ex. Ka. 95). In order to buttress this plea, the

learned counsel has relied on the cases of Jagmail singh

and another v. Karamjit Singh and others, [(2020)

5 SCC 178], and U. Sree v. U. Srinivas, [(2013) 2

SCC 114].

(vi) According to the prosecution, the appellant had

kept a watch over the movement of one of the deceased

persons, namely Mahendra Singh Bhati, and had

informed the assailants about his movement. However,

the said allegation is not supported by any evidence. For,

a) Mahendra Singh Bhati's movements were well covered

in the media. On the fateful day, Mahendra Singh Bhati

had addressed a public media at village Mahavar--a fact

reported by the media. ii) Both according to Sameer Bhati

(P. W. 32) and Anil Kumar Bhati (P. W. 39), Mahendra

Singh was relaxing in his house, when he was suddenly

informed by the C.I.D. C. B. Inspector that he is required

for recording his statement with regard to the alleged

murder of Santram. Therefore, Mahendra Singh Bhati

had abruptly left his house. The fact that Mahendra Singh

Bhati had quickly left his house could not be known by

the appellant. Hence, he could not have informed the

assailants about the movement of Mahendra Singh Bhati.

Moreover, in 1992 cell phones did not exist. Hence, it was

impossible for the appellant to inform the assailants

about the movement of Mahendra Singh Bhati.

(vii) The learned Trial Court has needlessly quoted

the entire statements of co-accused Maharaj Singh and

Aulad Ali, given by them under Section 15 of the TADA

Act, in order to reveal a conspiracy between the accused

persons. However, later in the judgment the learned Trial

Court has discarded the said statements, inter alia on the

ground that since the charge-sheet was not filed for an

offence under TADA Act, since the maker of the

statements had expired during the trial, the said

statements cannot be read against the other co-accused

persons.

(viii) The prosecution has miserably failed to

establish a criminal conspiracy between the accused

persons through oral and documentary evidence. In fact,

the appellant was never charged for offence under

Section 120-B IPC. Yet, the learned Trial Court has

convicted the appellant for offences under Section 302

read with 120-B IPC, for offence under Section 307 read

with 120-B IPC, for offence under Section 326 read with

120-B IPC.

(ix) The learned Trial Court has convicted the

appellant only on the basis of surmises and conjectures.

The learned Trial Court has ignored the cardinal principle

of criminal jurisprudence that there is a vast distance

between "may be true" and "must be true"--a distance

the prosecution must cover. Although the prosecution has

failed to cover the said distance, the learned Trial Court

has still convicted the appellant for the aforementioned

offences.

14. On the other hand, Mr. Sandeep Tandon, the

learned counsel for the CBI, has raised the following

counter-arguments:

(i) Firstly, there was a gang war between the

gangs of Satbir Gujjar and Mahendra Singh Fauji. This is

evident from the large number of FIRs registered by the

members of each gang against the members of the other

gang. During the relevant time, there were two gangs

working in the area, namely one belonging to Satbir

Gujjar, and the other belonging to Mahendra Singh Fauji.

While the deceased patronized the former gang, the

appellant sided with the latter gang. Both the gangs were

engaged in a series of gang warfare, as they wanted to

eliminate the members of the other gang. The existence

of gang warfare in the area is evident from the fact that a

large number of criminal cases were registered for

murder of members of each other gang: Crime Case No.

372/90 was registered at Police Station Loni against

Satveer, Kaluram Rana Kesar Gujar, Ashok, Ali, Maidan,

Mohan, Pappu Neeraj, Onnkar Singh, Vikram, Ranapal,

Lokesh and Kenga Nai for the murder to Rashid Ali, Sajan

Sah, Mehardeen, Ajmeithi, Brahma Singh Feju. While the

deceased belonged to the Salbir Gujjar's gang, the

accused persons belonged to Mahendra Singh Fauji's

gang. In this case six persons were killed, including

Rashid Ali, who was the brother of Aulad Ali, one of the

co-accused in the present case.

(ii) On 23.12.1991, FIR No. 251/91 was chalked

out in Police Station Bhopa, Muzzafar Nagar, for offence

under Section 302 IPC against Bharampal Singh,

Prempal, Satendra, Dakpal, Ajeet, and Titu for the

murder of Shobha Ram Yadav, and Yahada Hasan. Even

in this case while the accused persons belonged to

Mahendra Singh Fauji's gang, the deceased belonged to

the gang of Satbir Gujjar.

(iii) Likewise, in Crime Case No. 647/92, registered

at Police Station Kavi Nagar, the case was registered

against Prakash Pehalwan, Prakash Gujar, Satyavir Gujar,

Man Singh and Satyapal. These persons belonged to the

Satbir Gujjar gang.

(iv) Most importantly, Case Crime No. 38 of 1993,

which was registered at Police Station Bisrakh,

Ghaziabad, was registered both against D.P. Yadav and

the present appellant, Karan Yadav, and other co-accused

persons. In this case Prakash Pehlwan, Jaiveer, Gurmeet

Singh, Ram Prakash, who members of the Satbir Gujjar's

gang, were injured by the present appellant and other co-

accused persons in the present case.

(v) Thus, it is obvious that from 1990 till 1996, for

six long years, gang wars were waged between the

members of Satbir Gujjar's gang and the members of the

Mahendra Fauji's gang. As stated earlier, the deceased

and Pehalwan Singh supported the former gang, and the

appellant and the co-accused persons, in the present

case, supported the latter gang. Thus, motive for

entering into a criminal conspiracy is crystal clear in this

case.

(vi) The appellant and his father, Tejpal Singh,

were clearly of the opinion that Mahendra Singh Bhati

had gotten the appellant's elder brother murdered though

the incident was made to look like an accident. Thus, the

appellant had a strong motive for getting Mahendra Singh

Bhati killed by the assailants.

(vii) In the complaint given by the deceased,

Mahendra Singh Bhati, he clearly mentions that he

apprehends danger from the president of the BJP Party

and his gangsters. At the relevant point of time, the

appellant's father, Tejpal Singh, was the president of BJP.

Thus, the appellant's involvement in the alleged crime is

proven by the complaint which has been treated by the

learned trial court as a dying declaration.

(viii) Even in the statement of Maharaj Singh and

Aulad Ali, recorded under Section 15 of the TADA Act,

both of them had revealed the elaborate conspiracy that

was hatched between the co-accused persons in order to

kill Mahendra Singh Bhati. Therefore, the prosecution

has succeeded in establishing that there was, indeed, a

conspiracy between the co-accused persons for

committing the illegal act of murder.

(ix) Both Horam Singh (P.W. 34) and Narain Yadav

(P.W. 37) claimed in their statements, under Section 161

Cr.P.C, that Pal Singh, Jaipal Gujjar and Maharaj Singh

used to visit the house of Tejpal Singh, and used to meet

the appellant in his father's house. Therefore, obviously,

a criminal conspiracy was hatched between the accused

persons and the appellant.

(x) Immediately after the incident, the appellant

had absconded from his house. The fact that he had

absconded clearly points towards his guilt.

15. Hence, the prosecution has succeeded in

establishing its case against the appellant. The learned

counsel has supported the impugned judgment.

16. Heard the learned counsel for the parties,

perused the impugned order, and examined the records.

17. In the case of Anwar Ali and another v. The

State of Himachal Pradesh, [(2020) 10 SCC 166],

the Hon'ble Supreme Court has reiterated the principles

with regard to the assessment of evidence in a case

based on circumstantial evidence. The principles are as

under:-

5.4 It is also required to be noted and it is not in dispute that this is a case of circumstantial evidence. As held by this Court in catena of decisions that in case of a circumstantial evidence, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and the circumstantial evidence

in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

In the case of Babu (supra), it is observed and held in paragraphs 22 to 24 as under:

"22. In Krishnan v. State (2008) 15 SCC 430, this Court after considering a large number of its earlier judgments observed as follows: (SCC p. 435, para 15)

"15. ... This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;

(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra (1982) 2 SCC 351)"

23. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153)

(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;

(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is

to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(iii) the circumstances should be of a conclusive nature and tendency;

(iv) they should exclude every possible hypothesis except the one to be proved; and

(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

A similar view has been reiterated by this Court in State of U.P. v. Satish (2005) 3 SCC 114 and Pawan v. State of Uttaranchal (2009) 15 SCC 259.

24. In Subramaniam v. State of T.N (2009) 14 SCC 415, while considering the case of dowry death, this Court observed that the fact of living together is a strong circumstance but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive proof, and there must be some evidence to arrive at a conclusion that the husband and husband alone was responsible therefor. The evidence produced by the prosecution should not be of such a nature that may make the conviction of the appellant unsustainable. (See Ramesh Bhai v. State of Rajasthan (2009) 12 SCC 603)."

(emphasis supplied)

5.5 Even in the case of G. Parshwanath (supra), this Court has in paragraphs 23 and 24 observed as under:

"23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced

and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.

24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court."

18. In the case of State v. Nalini, [(1999) 5 SCC

253] the Hon'ble Supreme Court has laid down the

principles governing a case of criminal conspiracy in the

following terms:

Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles.

1. Under Section 120A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is legal act by illegal means overt act is necessary. Offence of criminal conspiracy is exception to the general law where intent alone does not constitute crime. It is intention to

commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be committed.

2. Acts subsequent to the achieving of object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.

3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.

4. Conspirators may, for example, be enrolled in a chain A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind of umbrella-spoke enrollment, where a single person at the centre doing the enrolling and all the other members being unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell whether the conspiracy in a particular case falls into which category. It may, however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.

5. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement.

There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy.

6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.

7. A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement. In the charge of conspiracy court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand that "this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders".

8. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the gravaman of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time,

but may be reached by successive actions evidencing their joining of the conspiracy.

9. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.

10. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.

19. Therefore, the principles established by the

Hon'ble Supreme Court about the assessment of evidence

in a case based on circumstantial evidence, and the

principles laid down by the Hon'ble Supreme Court in

dealing with a case of criminal conspiracy, would

necessarily have to be borne in mind while assessing the

prosecution evidence in the present case.

20. The prosecution has vehemently tried to

establish that there was a motive for Tejpal Bhati and the

appellant for wanting to eliminate the deceased,

Mahendra Singh Bhati. However, this fact has not been

narrated either by Sameer Bhati (P.W. 32), the son of the

deceased, nor by Anil Kumar Bhati (P.W. 39), the nephew

of the deceased. If there were any animosity that existed

between the deceased and Tejpal Bhati, the father of the

appellant, or between the deceased and the present

appellant, the same would have been voiced either by

Sameer Bhati (P.W. 32), or by Anil Kumar Bhati (P.W.

39). Yet both of them do not utter a single word.

21. HCP Horam Singh (P.W. 34) was examined by

the prosecution as he used to stay in the house of Tejpal

Bhati, one of the co-accused persons in the present case,

and the father of the appellant. In his examination-in-

chief he claims that he has no knowledge that, prior to

his joining the services of Tejpal Bhati, one of the sons of

Tejpal Bhati had expired, or not. In his cross-

examination by the counsel for the CBI, he claims that he

had heard that five to six months prior to his joining the

services with Tejpal Bhati, one of his son had died in an

accident. However, he claimed that he does not

remember whether he had informed the CBI that Tejpal

Bhati was under the belief that his son had been killed at

the behest of Mahendra Singh Bhati for political reasons.

22. Moreover, in his examination by the counsel for

the accused persons, this witness admits that he has

been threatened repeatedly by the CBI. He claims that

"even today he was threatened by the CBI". The Court

asked him "as to who had threatened him today?" He

replied that the counsel for the CBI has threatened him

today. Subsequently, this witness placed his hand on the

counsel for CBI, and informed the Court that today the

counsel has threatened him, and instructed him to give

his testimony in accordance with the statement given by

him before the CBI. Otherwise, departmental enquiry can

be opened against him.

23. Even this witness has not supported the case of

the prosecution that Tejpal Bhati, and his family members

were of the opinion that it is Mahendra Singh Bhati, who

had gotten his son killed in an accident. Most

importantly, neither Tejpal Bhati, nor the appellant had

ever lodged an FIR against Mahendra Singh Bhati

claiming that the elder son in the family was killed at the

behest of Mahendra Singh Bhati. In fact, the only FIR

with regard to the said accident was registered against

unknown persons. Hence, the prosecution has failed to

prove that the appellant, or his father Tejpal Bhati, would

have any motive for getting rid of Mahendra Singh Bhati.

24. Mr. Sandeep Tandon, the learned counsel for

the CBI, has vehemently argued about the existence of a

gang-war between the gangs of Satbir Gujjar and

Mahendra Fauji. In order to establish this fact, he has

taken this Court through different FIRs and criminal

cases, which were registered against the members of

both the gangs. However, none of these FIRs, or criminal

cases, involved the appellant, or his father Tejpal Singh.

Therefore, the prosecution has failed to prove that the

appellant is a member of the Mahendra Fauji gang. Thus,

the argument raised by Mr. Sandeep Tandon fails to

establish the motive for the commission of the crime.

25. Although Mr. Sandeep Tandon, the learned

counsel for the CBI, is justified in claiming that in the

complaint given by the deceased to the police (Ex. Ka.

95), the name of Tejpal Bhati is mentioned, even then

the learned Trial Court has erred in relying upon the said

document as a dying declaration.

26. Both the prosecution and the learned Trial

Court have heavily relied upon the complaint (Ex. Ka. 95)

allegedly written by the deceased, Mahendra Singh Bhati,

to the SHO, Dadri Police Station. Admittedly, the said

complaint (Ex. Ka. 95) is a photostat copy. Therefore,

the issue before this Court is whether the learned Trial

Court was justified in admitting the said document, or

not?

27. Section 61 of the Evidence Act deals with the

proof of contents of documents. According to the said

provision, "the contents of documents may be proved

either by primary or by secondary evidence". Section 62

defines the word "primary evidence" as meaning "the

document itself produced for the inspection of the Court.

Where a document is executed in several parts, each part

is primary evidence of the document".

28. Section 63 defines the term "secondary

evidence" as under :-

63. Secondary evidence. -- Secondary evidence means and includes --

(1) certified copies given under the provisions hereinafter contained;

(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them;

(5) oral accounts of the contents of a document given by some person who has himself seen it.

29. Section 65 permits the giving of secondary

evidence in certain circumstances. Section 65 is as

under:-

65. Cases in which secondary evidence relating to documents may be given.--

Secondary evidence may be given of the existence, condition or contents of a document in the following cases: -

(a) when the original is shown or appears to be in the possession or power -- of the person against whom the document is sought to be proved, of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 74; 34

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1 [India] to be given in evidence;

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection.

In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

30. Section 66 of the Evidence Act prescribes the

procedure for production of a secondary evidence.

31. In Sital Das v. Sant Ram & others, [AIR

1954 SC 606], the Hon'ble Supreme Court observed

that foundation must be first laid for the reception of the

secondary evidence.

32. In The Roman Catholic Mission v. State of

Mardas & another, [AIR 1966 SC 1457], the Hon'ble

Supreme Court held that the copies of the original are not

admissible in evidence, if no foundation is laid for the

establishment of the right to give secondary evidence.

33. In the case of Jagmail Singh (supra), the

Hon'ble Supreme Court has opined as under:-

"Under the Evidence Act, 1872 facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence. Section 65 makes it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of

reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after notice mentioned in Section 65 such person does not produce it. For secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original evidence has not been furnished. Where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence. Merely the admission in evidence and making exhibit of a document does not prove it automatically unless the same has been proved in accordance with the law".

34. Before the prosecution can be permitted to

introduce a secondary piece of evidence, it must bring the

case within the ambit of Section 65 of the Evidence Act.

However, in the present case, the prosecution has failed

to bring the case within the ambit and scope of Section

65. For, the prosecution has nowhere pleaded that the

original copy of the alleged complaint has been destroyed

or lost, or the party is unable to produce it in a

reasonable time. The prosecution, in fact, has admitted

that the original copy was submitted to the Police Station

Dadri. But the prosecution has not made any attempt to

collect the said document from the Dadri Police Station.

Therefore, the prosecution has failed to lay down the

foundation for introduction of a secondary piece of

evidence.

35. Even the procedure prescribed under Section

66 of the Evidence Act has not been followed. For, the

CBI has not issued any notice to the Dadri Police Station

to produce the alleged complaint.

36. Moreover, nowhere is it stated that the xerox

copy was taken from its original, or that it was compared

with the original after taking its xerox copy. When there

is no possibility of the document being compared with the

original, the xerox copy cannot be accepted as secondary

evidence. Mere production of xerox copy does not amount

to proof of the original unless the copy given in evidence

is shown either to have been made from original, or to

have been compared with the original. Unless the

foundation for producing the secondary evidence is laid,

the xerox copy is not admissible in evidence.

37. According to the deposition of Sameer Bhati

(P.W. 32), when he had identified the alleged complaint

(Ex. Ka. 95), the defense counsel had immediately raised

an objection about its admissibility in the trial. The

learned Trial Court had merely noted that the question

about the admissibility would be decided later on.

38. In his cross-examination, Sameer Bhati (P.W.

32) claims that "the police had come to investigate the

complaint written by my father (Ex. Ka. 95). I do not

know whether my father had complained to the Police

Station Dadri over the phone or not? I do not know

whether the investigation was made by the SSI R.K.

Sharma, or not? I do not know what report was

submitted by the Investigating Officer. I do not know if

any information with regard to my father protecting a

gang run by Satbir".

39. This part of the cross-examination has been

treated by the learned Trial Court as "an admission made

by the accused". However, the question raised by the

defense counsel would have been as to why the police

had come to investigate. Merely because the witness

refers to the alleged complaint (Ex. Ka. 95) filed by his

father, it does not mean that the defense has admitted

the existence of the said document. This part of the

cross-examination would necessarily have to be read in

juxtaposition of the objection already raised by the

defense counsel while the examination-in-chief of this

witness was recorded by the learned Trial Court.

40. Moreover, even if for the sake of argument, it

is accepted that the accused had admitted the existence

of the alleged complaint (Ex. Ka. 95), it does not mean,

by any stretch of imagination, that the accused has

accepted the contents of the alleged complaint. The

prosecution was still required to prove the contents of the

complaint (Ex. Ka. 95). But even Sameer Bhati (P.W. 32)

does not prove the contents of the document. In his

examination-in-chief, he merely states that his father had

received certain threats about which he had complained

to the Police. Therefore, the learned Trial Court was

unjustified in admitting the said document as a secondary

piece of evidence.

41. In the case of U. Sree (supra), the Hon'ble

Supreme Court has opined as under:-

17. Recently, in H. Siddiqui (Dead) by Lrs. v. A. Ramalingam, (2011) 4 SCC 240, while dealing with Section 65 of the Evidence Act, this Court opined though the said provision permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It has been further held that mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the Court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.

42. Even if for the sake of argument it is accepted

that the complaint (Ex. Ka. 95) was validly admitted in

evidence, even then the complaint does not mention the

present appellant. Therefore, the deceased Mahendra

Singh Bhati did not have any apprehension of any danger

caused by the appellant. Therefore, the complaint (Ex.

Ka. 95) does not prove the fact that the appellant is part

of any criminal conspiracy against the deceased

Mahendra Singh Bhati.

43. Once the document could not have been

admitted, the question whether the document (Ex. Ka.

95) qualifies as a dying declaration or not, need not

detain us. Since the very admission of the document is

unsustainable, the learned Trial Court is unjustified in

treating the document as a dying declaration of the

deceased, Mahendra Singh Bhati.

44. Moreover, in the case of State of M.P. v.

Paltan Mallah & others, [(2005) 3 SCC 169], the

Hon'ble Supreme Court was dealing with the issue

whether entries in the diary made by the deceased could

be treated as dying declaration, or not? The Apex Court

opined as under:-

11. The entries in the diary and certain statements of the deceased recorded on a microcassette were sought to be made admissible as evidence under Section 32 of the Evidence Act. Section 32 of the Evidence Act says that the statement, written or oral, of relevant facts made by a person who is dead, are themselves relevant facts, but this statement should have been made as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death when such question comes up for consideration by the court. It is true that when such statements were made, the maker of the statement need not be under the expectation of death. But nevertheless, these statements should give either the cause of his death or any of the circumstance which led to his death.

12. The entries in the diary and the representation Niyogi had submitted to the President of India were in general terms. He apprehended some danger at, the hands of some industrialists as the agitation of the workers had been going on and in some instances the henchmen of the 44 industrialists had unleashed physical violence on the workers. Even though he had mentioned the names of some of the accused persons in the diary and in the cassette, that by itself may not be of any assistance to the prosecution, to prove the case as the entries in the diary and cassette do not refer to any event which ultimately was the cause of his death".

45. Similarly, in the present case, the deceased

had made certain general statements about apprehending

danger from others. However, in the statement, he

neither speaks about the cause of death, nor any other

circumstance which would ultimately lead to his death.

Hence, the said complaint (Ex. Ka. 95) could not have

been treated as a "dying declaration". Moreover, even if

the complaint (Ex. Ka. 95) were to be treated as a dying

declaration, it does not mention the appellant. Therefore,

the said document is irrelevant qua the case of the

present appellant.

46. Although it is true that the statements of

Maharaj Singh and Aulad Ali, two co-accused persons in

this case, were recorded, under Section 15 of the TADA

Act, but, as pointed out by the learned Trial Court itself,

the said statements cannot be read against the appellant.

Firstly, because no charge-sheet was ever filed against

the appellant, or against the other co-accused persons for

offences committed under TADA Act. Secondly, both the

persons, who had made these statements, have already

expired during the pendency of the appeal. For these

reasons, the learned Trial Court has not relied upon the

statements recorded from these persons, under Section

15 of the TADA Act. Hence, the learned counsel for the

CBI is unjustified in relying upon the same in order to

establish a criminal conspiracy amongst the co-accused

persons.

47. The only case pleaded against the appellant is

that he had informed the assailant about the

whereabouts of Mahendra Singh Bhati. However, both

according to Sameer Bhati (P.W. 32), and according to

Anil Kumar Bhati (P.W. 39), both of them were with

Mahendra Singh Bhati in his house when a call was made

asking him to appear before the Investigating Officer in

Village Bhangal. According to both these witnesses,

Mahendra Singh Bhati had suddenly left his house along

with his gunmen. The fact that Mahendra Singh Bhati

had suddenly left his house could not have been known

by the appellant by any stretch of imagination.

48. Furthermore, in 1992 cellphones were not

available so as to permit the appellant to inform the

assailant over a cellphone as to the whereabouts of

Mahendra Singh Bhati. Most importantly, the prosecution

has failed to produce an iota of evidence to show that the

appellant had informed the assailants about the

movement of Mahendra Singh Bhati.

49. Horam Singh (P.W. 34) and Narain Yadav (P.W.

37) did claim in their statements, recorded under Section

161 Cr.P.C., that the other co-accused Pal Singh, Jaipal

Gujjar and Maharaj Singh used to visit the house of

Tejpal Singh Bhati, and used to meet Praneet Bhati, the

appellant. However, since both these witnesses have

turned hostile, their statements, given under Section 161

Cr.P.C., cannot be read either as a substantive piece of

evidence, or as corroborating the prosecution story.

50. In the locus classicus case of Tahsildar Singh

v. State of U.P., [AIR 1959 SC 1012], the Constitution

Bench of the Hon'ble Apex Court had elaborately

discussed the scope, ambit and use of a statement given

under Section 161 Cr.P.C. The Apex Court had finally

concluded as under:-

From the foregoing discussion the following propositions emerge: (1) A. statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness-box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases: (i) when a recital is necessarily implied from the recital or recitals found in the statement ; illustration: in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness-box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word " only " can be implied, i.e., the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement; illustration: in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness-box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that be was not of fair complexion; and (iii) when the statement before the police and that before the Court cannot stand together; illustration: the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but in the Court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing, i.e., at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false.

51. According to the Hon'ble Apex Court, the said

statement can be used "only to contradict the witness

and for no other purpose".

52. In the case of V.K. Mishra & another v.

State of Uttarakhand, [AIR 2015 SC 3043], the

Hon'ble Supreme Court has elaborately discussed the

interrelation between Section 161 Cr.P.C. and Section

162 Cr.P.C. as under:-

14. Section 161 Cr. P. C. titled "Examination of witnesses by police" provides for oral examination of a person by any investigating officer when such person is supposed to be acquainted with the facts and circumstances of the case. The purpose for and the manner in which the police statement recorded under Section 161 Cr.P.C can be used at any trial are indicated in Section 162 Cr. P. C. Section 162 Cr. P. C. reads as under:

162. Statements to police not to be signed-Use of statements in evidence.-(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of

1872), or to affect the provisions of Section 27 of that Act.

Explanation.- An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

15. Section 162 Cr. P. C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) Cr. P. C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162 (1) Cr. P. C. The statements under Section 161 Cr. P. C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose:- (i) of contradicting such witness by an accused under Section 145 of Evidence Act;(ii) the contradiction of such witness also by the prosecution but with the leave of the Court and (iii) the re-examination of the witness if necessary.

16. Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr. P. C. "if duly proved" clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the investigating officer. Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction.

17. Section 145 of the Evidence Act reads as under:

145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

18. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction.

53. Thus, Section 162 Cr.P.C. permits the use of a

statement made under Section 161 Cr.P.C. for an

extremely limited purpose, namely for contradicting the

maker of the statement on what he has stated during the

investigation as laid down in the proviso to Section 162

(1) Cr.P.C. read with Section 145 of the Evidence Act.

Therefore, the said statement can be used by the accused

to contradict the witness; secondly, with the permission

of the Court by the prosecution to contradict the witness

provided by Section 145 of the Indian Evidence Act.

Thirdly, the said statement can also be used for re-

examination of such witness in order to explain any

matter referred to in his cross-examination. However,

the statement made under Section 161 Cr. P. C. cannot

be used to convict an accused.

54. In fact, in the case of Virendra Singh v. State

of Haryana, [AIR 2017 SC 1228] the Hon'ble Supreme

Court has further opined that "PW-12, having been

discredited by the prosecution and she having been

contradicted with reference to her previous statements

recorded under Section 161 Cr. P. C, as required under

Section 145 of the Evidence Act, no part of the testimony

of PW-12 can be taken into account for determining the

culpability of the accused-appellant. The statements

made by her in the course of her investigation and

recorded under Section 161 Cr.P.C. do not constitute

evidence that can be relied upon by a Court to convict an

accused."

(Emphasis added)

55. The learned Trial Judge has relied on the case

of Bhagwan Das v. State of Delhi, [(2011) 6 SCC

396] in order to cull out the principle that because the

witness turned hostile during the trial, and the said

witness was confronted by her/his statement recorded

under Section 161 Cr.P.C., the statement can be used as

an evidence. Therefore, an accused can be convicted on

the basis of the statement recorded under Section 161

Cr.P.C. Having extracted this principle from the said

judgment, the learned trial Court has proceeded to read

the second statement (Ex. Ka. 114) of Narain Yadav

(P.W. 37) given under Section 161 Cr.P.C. However,

while doing so, the learned Trial Court has committed

three errors: firstly, it has ignored the proviso to Section

162 Cr.P.C. which clearly prescribes the limited purpose

for which a statement recorded under Section 161 Cr.P.C.

can be used. Secondly it has ignored the settled

principles of law as annunciated by the Hon'ble Supreme

Court in catena of cases--some of which have been

mentioned above. Thirdly, it has ignored the rules of

precedent.

56. Rules of precedent play a pivotal role in

maintaining consistency and certainty in the development

of law. There has to be harmony in the interpretation and

development of law. If rules of precedent were to be

ignored, it would unnecessarily lead to cacophony in law.

Thus, judicial discipline demands and dictates that rules

of precedent should be adhered to both in spirit and in

letter. [Ref. to Shah Faesal v Union of India, (2020)

4 SCC 1].

57. While relying on the case of Bhagwan Das

(supra), the learned Trial Court should have kept in mind

the principle annunciated in the case of Tahsildar Singh

(supra). For the latter decision was not only one of the

earliest decision on the scope and use of statement

recorded under Section 161 Cr.P.C., but was also a

decision by a learned Constitution Bench. Thus, the said

decision was binding on the learned Division Bench which

decided the case of Bhagwan Das (supra). Further,

while the case of Bhagwan Das (supra) was decided by

a learned Division Bench, the case of V.K. Mishra

(supra) was decided by a learned Full Bench of the

Hon'ble Supreme Court. Hence, the learned Trial Court

should have adhered to the principles of law as

annunciated by the learned Constitution Bench in the

case of Tahsildar Singh (supra) and by the learned Full

Bench in the case of V.K. Mishra (supra).

58. Hence, the learned Trial Court has erred in

reading the statement of these two witnesses, recorded

under Section 161 Cr.P.C., as a substantive piece of

evidence, and using these statements against the present

appellant.

59. The Hon'ble Supreme Court has clearly opined

that absconding cannot be treated as an incriminating

evidence. For, even innocent people do tend to run away

from the scene of the crime and from their village or

home. Therefore, conviction cannot be based only on the

ground that the alleged accused has absconded. Since

there is lack of evidence with regard to the appellant

being a conspirator, his conviction only on the basis of

the fact that he had absconded from his home cannot be

the basis for convicting him for the aforementioned

offences.

60. In the case of Matru v. State of U.P.,

[(1971) 2 SCC 75], the Hon'ble Supreme Court had

clearly observed as under :-

The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence.

61. In the case of Bipin Kumar Mondal v. State

of West Bengal, [(2010) 12 SCC 91], an identical

opinion has been expressed by the Hon'ble Apex Court.

Therefore, even in the present case even if the appellant

had absconded from his place of residence, this fact, by

itself, cannot form the basis of convicting the appellant of

the aforementioned offences.

62. Therefore, for the reasons stated above, this

appeal is, hereby, allowed. The judgment, dated

28.02.2015/10.03.2015, passed by the IIIrd Additional

Sessions Judge/Special Judge (C.B.I.), Dehradun, qua the

appellant is set aside. Hence, the appellant is acquitted