CRLA/151/2015
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                                                      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. 151 OF 2015

               JUDGMENT RESERVED : 21ST SEPTEMBER, 2021
               JUDGMENT DELIVERED : 23RD NOVEMBER, 2021



 Between:

 Pal Singh @ Pala @ Lakkar @Harpal Singh.
                                                               ...Appellant

 And


 Central Bureau of Investigation.

                                                            ...Respondent

Counsel for the appellant. : Mr. Surendra Singh, the learned Senior Counsel assisted by Mr. G.S. Sandhu and Mr. Harshit Sanwal, 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, Pal Singh @ Pala @ Lakkar @ Harpal Singh,

has filed the present appeal before this Court.

2. By the said judgment, the appellant has been

convicted for offence under Section 302 of the Indian

Penal Code (for short "the IPC"). He has been sentenced

to life imprisonment. He has further been directed to pay

a fine of Rs. 25,000/-, and to further undergo a simple

imprisonment of one year in default thereof. He was

further convicted for offence under Section 307 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. He was further convicted for offence

under Section 326 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.

Furthermore, he was convicted for offence under Section

27 of the Arms Act, and was sentenced to life

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

5,000/- and to undergo one month of 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 6:30 p.m.,

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, on the way to

village Bhangel, as the Dadri railway crossing gate was

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

crossing gate. According to the complainant, he and one

Dharamveer Singh also reached the railway crossing gate

on their motorcycle. As soon as the railway crossing gate

opened, around 7:00 PM, 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 the

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, 307 IPC.

5. Initially, the investigation was handed over to

the S.S.I., Jagdish Singh Yadav (P.W. 36). The

Investigating Officer immediately reached the scene of

the crime, and recovered five empty cartridges of AK-47

rifle, and seven empty cartridges of 7.62 mm rifle.

Through the recovery memo (Ex. Ka. 96), the dead

bodies of Mahendra Singh Bhati, and Udai Prakash Arya

were sent for post-mortem.

6. 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.

7. 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").

8. After completing the investigation, the CBI

submitted the charge-sheet not only against the present

appellant, Pal Singh @ Pala @ Lakkar @ Harpal Singh,

but also against the other co-accused persons, namely

Dharmpal Singh Yadav @ D.P. Yadav, Karan Yadav,

Tejpal Bhati, Praneet Bhati, Maharaj Singh, Jaipal Gujjar

and Aulad Ali.

9. By order dated 07.01.1996, the Special Judicial

Magistrate, CBI, Dehradun, took cognizance against the

appellant, Pal Singh @ Pala @ Lakkar @ Harpal Singh,

and Jaipal Gujjar for the offences under Sections 302,

307 and 326 IPC, and for offence under Section 27 of the

Arms Act.

10. 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. vs. Tejpal Bhati and

others", with Session Trial No. 48 of 2001, "C.B.I. vs.

D.P. Yadav".

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

forty-one witnesses, submitted 115 documents, and

produced 159 material objects.

12. During the trial four co-accused persons

expired, namely, Maharaj Singh, Tejpal Bhati, Jaipal

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

13. After appreciating the evidence produced by

the prosecution, by a common judgment dated

25.02.2015/ 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, Pal Singh

@ Pala @ Lakkar @ Harpal Singh. The other appeals

shall be decided separately.

14. In order to convict the appellant, for the

aforementioned offences, the learned Trial Court relied on

the following evidence :-

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

the son of the deceased, Mahendra Singh Bhati, his father

had an apprehension that he may be killed by the

appellant. Furthermore, he had given three documents

written by his father to the police. The said three

documents were recovered by Seizure Memo (Ex. Ka.

94). Treating one of these documents, namely

complaint dated 23.06.1992 (Ex. Ka.95) as a dying

declaration, where the appellant has been named, the

learned Trial Court was of the opinion that the said

complaint (Ex. Ka. 95) has a grave incriminating

evidentiary value against the appellant. Thus, the said

complaint (Ex. Ka. 95) was read against the appellant.

Secondly, according to Inspector Mamchand

(P.W. 27), on 18.06.1996, the police had received secret

information that the appellant, and Jaipal Singh were

sleeping outside the house of Jassa Singh in Village,

Pehwa. Therefore, the police surrounded the said house,

and nabbed the appellant and Jaipal Singh. At the time

of his arrest, the appellant had pulled out an AK-47 rifle

from the side of his bed. Therefore, even the said gun

was recovered while arresting Pal Singh. On the basis of

this recovery, an FIR, namely FIR No. 134 of 1996 was

registered against the Pal Singh for offences under

Sections 307, 216A, 412 and 414 IPC and under Sections

25, 54, 59 of the Arms Act.

Thirdly, S.S.I Jagdish Singh Yadav (P.W. 36)

recovered five empty cartridges of AK-47 rifle from the

scene of the crime. According to Abhijeet Dey (P.W. 25),

after examining the bullets recovered from the scene of

the crime, and from the bodies of the deceased persons,

he had concluded that these bullets were, indeed, fired

from the AK-47 rifle recovered from the appellant.

Fourthly, on 15.07.1996, the appellant had

made a disclosure statement (Ex. Ka. 113), wherein he

had claimed that he had gotten the getaway car, given by

D.P. Yadav, serviced in September, 1992 at Sumko

Automobiles, i.e. prior to the murder. He had further

stated that he can take the police to the Sumko

Automobiles, and identify the service station, near the

Court, in Gurgaon. On the basis of this disclosure

statement, the police reached the Sumko Automobiles

Service Station in Gurgaon. The police had recovered the

Service Register (Ex. Ka. 78) from the Service Station.

According to Page No. 726 of the Service Register (Ex.

Ka. 78), a car bearing registration No. DL-4C/B- 3597

was serviced on 09-07-1992 under the name of Harpal

Singh. According to the prosecution, it is this car which

was used as a getaway car at the time of the commission

of the alleged crime; the car was serviced prior to the

alleged crime.

Fifthly, after the commission of the alleged

crime, the appellant had stayed at the Rainbow Guest

House under the pseudonym of Harpal Singh. This fact

was proven by Satpal Singh (P.W. 3) and by the Guest

Register of the Guest House.

Lastly, after the commission of the crime, the

appellant had absconded for about four years. Although

the crime was committed on 13-09-1992, the appellant

was not arrested till 18.06.1996. His absconding for four

long years was an additional link in the chain of

circumstances which pointed towards his guilt.

Therefore, according to the learned Trial Court,

the prosecution had established a complete chain of

circumstances which unerringly pointed towards the

involvement and guilt of the appellant. The learned Trial

Court convicted and sentenced the appellant for the

aforementioned offences.

15. Mr. Surendra Singh, the learned Senior Counsel

appearing for the appellant, has raised the following

contentions before this Court:-

(I.) Anil Kumar Bhati (P.W. 39), the

complainant, had lodged a compliant (Ex. Ka. 30) against

seven to eight unknown persons. Neither in his complaint

(Ex. Ka. 30), nor in his statement, under Section 161 Cr.

P. C., does he give any particular details about the

appearance of the alleged assailants. Therefore, the

appellant is not even named in the FIR (Ex. Ka. 39).

Although the prosecution has produced a number of eye-

witnesses, namely Rajkumar (P.W. 7), Vedram Kaushik

(P.W. 31), D.N. Singhaniya (P.W. 33), Om Prakash Kayal

(P.W. 35), Anil Bhati (P.W. 39), none of these

eyewitnesses either described the appellant physically in

their testimonies, or identified him in the court. In fact,

no identification parade was conducted by the CBI. Thus,

the prosecution witnesses do not claim the appellant to

be at the scene of the crime. Hence, he cannot be said to

be the author of the fatal injuries. Yet, the appellant has

been convicted and sentenced for offence under Section

302 IPC.

(II.) Anil Kumar Bhati (P.W. 39) in his

testimony changes his entire stand as revealed in his

complaint (Ex. Ka. 30), and his statement given under

Section 161 Cr. P. C. According to his testimony, it is not

that seven to eight unknown persons had attacked the

deceased, Mahendra Singh Bhati and Udai Ram Arya, but

only two unknown persons had ambushed and killed the

deceased persons. Despite the fact that the appellant is

unknown to the complainant, the appellant has never

been subjected to a Test Identification Parade.

Surprisingly, even in the Court, Anil Kumar Bhati (P.W.

39), the complainant, does not identify the appellant.

Therefore, there is no direct evidence produced by the

prosecution to establish that the appellant was the author

of the fatal injuries caused to the two deceased persons.

Therefore, the entire case against the appellant is based

on circumstantial evidence.

(III.) The prosecution has not been able to

establish all the links in the chain of circumstances, which

would unerringly point towards the guilt of the appellant.

In fact, the prosecution case suffers from gaping holes.

However, in order to convict the appellant for the

aforementioned offences, the learned Trial Court has

misread the evidence and misapplied the law. Hence, the

appellant's conviction is based on sheer surmises and

conjectures.

(IV.) Although Sameer Bhati (P.W. 32) had

furnished three documents, which were seized by Seizure

Memo (Ex. Ka. 94) by the police, the said documents

were photostat copies of alleged complaints written by

the deceased, Mahendra Singh Bhati, to the police.

However, the said documents being secondary piece of

evidence could not and should not have been admitted by

the learned Trial Court. For, the requirements of Sections

65 and 66 of the Evidence Act were not fulfilled by the

prosecution. Therefore, the learned Trial Court has erred

in accepting the document in evidence. In order to

buttress this plea, the learned Senior Counsel has relied

on 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].

(IV-A.) Moreover, while recording the

testimony of Sameer Bhati (P.W. 32), the appellant had

objected to the admissibility of the said document (Ex.

Ka. 95). Despite the objection, and without deciding the

objection, the learned Trial Court has accepted the

document (Ex. Ka. 95) ostensibly on the ground that the

defense had admitted the existence of the document. But

once the appellant had challenged the admissibility of the

document, the question of "admitting" the existence of

the document would not even arise. Thus, it is a mis-

reading of the evidence readily available in the record.

(IV-B.) Even if for the sake of argument it

were accepted that the appellant had admitted the

existence of the document, it does not prove the contents

of the documents. Hence, the learned Trial Court has

misapplied the law on the issue of admissibility of

secondary evidence. Thus, the first reason given by the

learned Trial Court for convicting the appellant is clearly

untenable.

(IV-C.) Moreover the learned Trial Court has

erred in accepting the said document (Ex. Ka. 95) as a

dying declaration. In order to support this contention, the

learned Senior counsel has relied upon the case of State

of M.P. v. Paltan Mallah & others, [(2005) 3 SCC

169].

(V.) The prosecution has heavily relied upon

the recovery of AK-47 bullets from the scene of the

crime, and upon the alleged recovery of an AK-47 gun

from the appellant. But on a closer scrutiny of the

evidence, even these two circumstances do not prove the

involvement of the appellant in the alleged crime. For,

firstly, none of the eyewitnesses claim that an AK-47 gun

was used by the assailants for committing the crime.

Since AK-47 guns are rare, its use would have attracted

the attention of the eyewitnesses. Yet, not a single

eyewitness, including the complainant, Anil Kumar Bhati

(P. W. 39), utter a single word about the use of an AK-47

gun for commission of the alleged crime. Of course,

Jadgish Singh Yadav (P. W. 21) does claim that he

recovered five empty cartridges of AK-47 from the scene

of the crime. Moreover, two AK-47 bullets were recovered

from the body of Mahendra Singh Bhati; two AK-47

bullets were equally recovered from the body of Uday

Prakash Arya. But the issue is whether the prosecution

has succeeded in proving the fact that the recovered

bullets were, indeed, fired from the allegedly recovered

AK-47 gun from the appellant or not?

(V-A) Man Chand (P. W. 27) has claimed that

the AK-47 gun, used for committing the alleged crime,

was recovered from the appellant. However, while the

alleged crime had occurred on 13-09-1992, the AK-47

gun was recovered on 18-06-1996. Thus, the AK-47 gun

was recovered four years after the alleged crime was

committed. The alleged crime had taken place in Dadri,

District Gaziabad, U. P. Yet, the AK-47 gun was recovered

from village Dhoolgarh, Police Station Pehwa, District

Kurukshetra, Haryana. Hence, there is a long gap of time

and of space between the commission of the crime and

the recovery of the weapon. Relying on the case of

Pancho v. State of Haryana, [(2011) 10 SCC 165],

the learned Senior Counsel has argued that the

prosecution has failed to prove the possession of the AK-

47 with the appellant for the intervening period of four

years. Hence, the recovery cannot be relied upon to

convict the appellant.

(V-B) Although the seizure memo of the AK-47

gun (Ex. Ka. 81) was produced, it is a photocopy of the

original seizure memo. Hence, it is a secondary piece of

evidence. Interestingly, the prosecution has not produced

Surendra Singh, the scribe of the original recovery memo

as a witness. Since a material witness has been withheld,

an adverse inference should be drawn against the

prosecution. Thus, the seizure memo (Ex. Ka. 81) loses

its significance.

(V-C) In connection with the alleged recovery

of the AK-47 gun, an FIR, namely FIR No. 134/96, was

registered at Police Station Pehwa, for offences under

Sections 307, 216A, 412, 414 IPC and for offence under

Sections 25, 54 and 59 of the Arms Act; Session Case No.

88/2005 was registered qua the said FIR. However, by

judgment dated 08-07-2006, the learned Additional

Sessions Judge, (FTC), Kurukshetra had acquitted the

appellant in the said case. The learned Additional

Sessions Judge has acquitted the appellant, inter alia, on

the ground that according to witness Rampal (P.W. 2), in

that case, had claimed that the number on the AK-47 was

KA. 1527, whereas according to the recovery memo (Ex.

Ka. 81), the number on the said AK-47 gun is shown as

KO-1527/1949-T. Thus, the recovered memo does not

relate to the alleged recovery of AK-47 gun. Hence, the

appellant has been acquitted of offence under Section 25

of the Arms Act, i.e. for possessing the AK-47 gun. The

said judgment passed by a competent criminal court is

binding on the learned Trial Court in this case. For, there

is issue estoppel. Since the possession of the AK-47 gun

has been disbelieved by a criminal court, the very

recovery of the said gun becomes highly doubtful.

(V-D) Even in the present case, there is a

grave contradiction between the number shown in the

Seizure Memo (Ex. Ka. 81), and the number actually

inscribed on the AK-47 gun, and the numbers given by

witnesses in their testimonies. But, the learned Trial

Court has gone out of its way to interpret the numbers

inscribed on the gun in such a fanciful manner so as to

custom tailor the numbers according to the prosecution

case. According to the Recovery Memo (Ex. Ka. 81), the

number on the AK-47 gun is "KO 1527/1949 T". Yet,

according to the learned Trial Court, the AK-47 gun bears

the number as "KO 1527/4949 F". Having observed the

numbers visually, the learned Trial Court proceeds to

misinterpret the number in an imaginative manner.

According to the learned Trail Court, the letter 'F' can be

read as 'T'. By changing the letter from the visible 'F' to

the recorded letter 'T', the learned Trial Court is custom

tailoring the visible evidence to the Recovery Memo (Ex.

Ka. 81). According to the Recovery Memo (Ex. Ka. 81),

the number inscribed on the AK-47 gun is "1949"; yet,

according to the learned Trial Court the number visible on

the said gun is "4949".Curiously, the learned Trial Court

does not discuss the discrepancy between the numbers

"1949" and "4949". But the difference in the numbers of

the AK-47 gun, between the one recovered, and the one

produced in the court, raises a grave doubt about the

recovery of the AK-47 gun from the possession of the

appellant.

(V-E) Further, according to the letter written by

the Superintendent of Police (Ex. Ka. 69), dated

04.07.1996 to the Director, CFSL, the number on the AK-

47 gun is shown as K-01527/1949T. Thus, according to

the said letter (Ex. Ka. 69), the numbers are '01527', yet

according to the Recovery Memo (Ex. Ka. 81), the

number is K O 1527. Hence, according to the latter, 'O' is

a letter, and not the number '0'. But the learned Trial

Court reads the number '0' as the letter 'O'. Hence, the

learned Trial Court misreads the evidence available on

the record. The learned Trial Court has ignored the

cardinal principle that if there are two interpretation of

the same evidence, the interpretation in favour of the

accused should be accepted.

(V-F) The prosecution has relied on the

testimony of Abhijeet Dey (P. W. 25) and the FSL Report

(Ex. Ka. 71) to prove the fact that the recovered bullets

were certainly fired from the recovered AK-47 gun. But

once the very recovery of the gun, from the possession of

the appellant, is doubtful, the testimony of Abijay Dey (P.

W. 25) and the FSL Report (Ex. Ka. 71) lose all their

significance.

(V-G) Furthermore, Abhijeet Dey (P. W. 25)

clearly admits, in his cross-examination, that the FSL

Report (Ex. Ka. 71) does not show that any bullet was

test fired in order to discover the fact that the recovered

bullets were, indeed, fired from the recovered AK-47 gun.

Moreover, there is no indication in the FSL Report (Ex.

Ka. 71) that any microscopic comparison was carried out.

Thus, his evidence with regard to the co-relation of the

bullet with the allegedly recovered AK-47 gun is highly

unreliable. Relying on the case of Pattu Rajan v. State

of Tamil Nadu, [AIR 2019 SC 1674], the learned

Senior Counsel has emphasised the vital role of an expert

in a criminal trial. Further, relying on the case of Ramesh

Chandra Agrawal v Regency Hospital, [AIR 2010 SC

806], the learned Senior Counsel has argued that unless

the expert reveals the criteria used by him to reach his

conclusion, his conclusions are unacceptable.

Furthermore, relying on the case of State of Gujarat v

Adam Fateh Mohmed Umatiya, [(1971) 3 SCC 208],

the learned Senior Counsel has argued that unless

reliable evidence is given by the expert in his report, the

trial court has no means of cross-checking the expert

opinion. Therefore, it was imperative for the FSL Report

(Ex. Ka. 71) to reveal the microscopic examination

carried out on the recovered bullets. Hence, the ballistic

report (Ex. Ka. 71) and the expert opinion lose their

evidentiary value.

(VI.) According to Navin Chandra Jha (P.W.

41), Pal Singh had made a disclosure statement under

Section 27 of the Indian Evidence Act, 1872, wherein he

had claimed that prior to the commission of the alleged

offence, he had taken the car to Somko Automobile,

located near a court in Gurgaon. He could take the police

to the said Automobile Service Station. Consequently,

the appellant took the police to the said Service Station.

From the Service Station, a Service Register (Ex. Ka. 78)

was recovered by the police. According to Page No.726

of the said Service Register (Ex. Ka. 78) of the Service

Station, the car was serviced on 09.07.1992. However,

Mr. Surendra Singh, learned Senior Counsel, submits

that, firstly, according to the disclosure statement, the

appellant claimed that he had gotten the car serviced in

September, 1992, yet the Service Register (Ex. Ka. 78)

reveals that the car was serviced on 09.07.1992; i.e. the

service was done in July and not in September. Further,

Page No. 726 of the Service Register (Ex. Ka. 78) is full

of overwriting. The name of the owner of the car has

been struck-off and the name of Harpal is overwritten.

Likewise, the registration number of the car is struck-off

and a new registration number has been inserted.

Therefore, there is lot of interpolation in the Service

Register (Ex. Ka. 78). Thus, the very veracity of the

Service Register (Ex. Ka. 78), and the veracity of the

contents of the register are highly doubtful. Therefore,

the recovery of the Service Register (Ex. Ka. 78), and the

relevant entry at page No. 726 of the Register is totally

unconnected and irrelevant for convicting the appellant in

the present case.

(VII.) Satyapal Tandon (P.W. 3) had claimed

that a person, by name of Harpal Singh, had come and

stayed at his Guest House. However, the said witness

has never identified the appellant in any Test

Identification Parade. Moreover, even in the Court he

failed to identify the appellant as the person who had

signed the register of the Guest House as Harpal Singh.

Therefore, his testimony does not buttress the

prosecution case.

(VIII.) Although the learned Trial Court has

considered the fact that, after the commission of the

alleged crime, the appellant had absconded, absconding

by itself is not incriminating evidence. Moreover, the

appellant was never declared as an absconder under

Section 82 of the Code of Criminal Procedure, 1973.

Furthermore, no police officer claims that he had gone to

the house of the appellant in search of the appellant.

Therefore, the learned Trial Court is unjustified in

concluding that the appellant had absconded.

(IX.) Thus, despite a number of circumstances

forged against the appellant, the prosecution has not

been able to establish a chain of circumstances, which

would unerringly point towards his guilt. Hence, the

appellant deserves to be acquitted by this Court.

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

learned counsel for the CBI, has raised the following

counter-arguments before this Court:

(I.) At the relevant time, there was a gang

warfare, which had erupted between the gangs of Satbir

Gujjar and Mahendra Singh Fauji. While the appellant

and other co-accused persons, namely, D.P. Yadav and

others, were supporting Mahendra Singh Fauji's gang, the

deceased, Mahendra Singh Bhati, was supporting the

gang of Satbir Gujjar. Both the gangs were trying to

eliminate the members of the other gang. This fact is

evident from the existence of large number of FIRs, which

were lodged in different police stations against each

other.

(I-A) 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.

(I-B) On 23-12-91, 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.

(I-C) 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.

(I-D) According to the learned counsel, in FIR

No. 38 of 1993, the present appellant was an accused.

According to the complainant in the said FIR, the present

appellant, along with Karan Yadav, had attacked Prakash

Pahalwan, Jaiveer, Gurpreet and Ram Prakash and had

injured them. Therefore, the said FIR was registered for

offence under Section 307 IPC. This clearly proves that

the present appellant was part of Mahendra Singh Fauji's

gang, and was trying his level best to kill those persons,

who either belonged to Satbir Gujjar's gang or were

supporting the said Satbir Gujjar's gang.

(I-E) Moreover, FIR No. 134/96 was registered

at Police Station Pahewa, for offence under Section 307

IPC, and for offences under Sections 25, 54, and 59 Arms

Act, against the appellant.

(I-F) 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 Singh Fauji's gang. As stated earlier, the

deceased supported the former gang, and the appellant

and the other co-accused persons, in the present case,

supported the latter gang. Hence, the appellant had a

strong motive for killing the deceased, Mahendra Singh

Bhati.

(II.) According to Jagdish Singh Yadav (P. W.

36), the moment the FIR was lodged, he rushed to the

scene of the crime. There, he recovered five empty

cartridges of AK-47 gun, and seven empty cartridges of

7.62 mm rifle. The said cartridges were duly sealed.

Subsequently, they were sent to the Forensic Science

Laboratory. According to the testimony of Abhijeet Dey

(PW25), these cartridges, which were recovered from the

scene of the crime, were fired from AK-47 gun, which was

allegedly recovered from the present appellant. Abhijeet

Dey (P. W. 25) has proven the FSL Report (Ex. Ka. 71).

Therefore, there is direct linking evidence between the

cartridges recovered from the scene of the crime, and the

AK-47 gun recovered from the appellant.

(III.) Merely because the Addl. Sessions Judge,

Fast Track Court, Kurukshetra had acquitted the present

appellant in the Sessions Case No. 88/2005, for

possessing the AK-47 gun, the said judgment would not

have any impact on the present case.

(IV.) The numbers present on the AK-47 gun

do tally with the numbers mentioned in the recovery

memo (Ex. Ka. 81) and the seizure memo (Ex. Ka. 83)

prepared by the CBI. Therefore, the prosecution is

justified in claiming that not only the AK-47 gun was

recovered from the possession of the appellant, but even

the cartridges, which were recovered from the scene of

the crime and from the bodies of both the deceased

persons, were fired from the said AK-47 gun. According

to the learned counsel, this is a clinching evidence to not

only prove the presence of the appellant at the scene of

the crime, but also to prove that he is the author of the

fatal injuries.

(V.) The overwriting in the Service Register

(Ex. Ka. 78) of the car has been explained by Tara Chand

(P.W. 26). Therefore, the Register is an incriminating

piece of evidence, for it clearly proves that prior to the

commission of the alleged crime, the appellant had

gotten the getaway car serviced.

(VI.) Once the existence of the complaint (Ex.

Ka. 95) is admitted by the accused-appellant, the

prosecution need not fulfill the requirements of Sections

65 and 66 of the Evidence Act. Therefore, the learned

Trial Court was justified in not only admitting the

complaint (Ex. Ka. 95), but also in treating it as a dying

declaration of the deceased, Mahendra Singh Bhati.

(VII.) Satyapal Tandon (PW3) clearly proves

that, on 25/26.09.1992, the appellant had stayed under

the pseudonym of Harpal Singh at his Rainbow Guest

House.

(VIII.) According to the learned counsel,

through the series of evidence cogently produced by the

prosecution, the prosecution has established its case

against the appellat. Hence, the learned counsel has

supported the impugned judgment.

17. In rejoinder, Mr. Surendra Singh, the learned

Senior Counsel, submits that the existence of motive, at

best, creates a suspicion against the appellant. But

suspicion no matter how strong cannot take the place of

proof. Therefore, the prosecution is still required to

establish its case by cogent and convincing evidence.

Secondly, the appellant was, in fact, acquitted

in the Criminal Case emanating from F.I.R. No.38/1993.

Moreover, even in the Session Case No.88/2005 by

judgment dated 08.07.2006, the appellant was acquitted.

Hence, the possession of AK-47 gun with the appellant is

highly doubtful.

Thirdly, the Register of Rainbow Guest House

was neither seized, nor produced during the trial.

Therefore, the testimony of Satyapal Tandon (PW3) loses

its evidentiary value. Moreover, Satyapal Tandon (PW3)

has never identified the appellant either in the Test

Identification Parade, or in the Court. Hence, his

testimony is irrelevant.

18. Heard the learned counsel for the parties,

examined the record, and perused the impugned

judgment.

19. A holistic appreciation of the case clearly

reveals two glaring facts:-

Firstly, the factum of the homicidal death of

Mahendra Singh Bhati, and Udai Prakash Arya are not in

dispute. For, according to Dr. A.K. Rastogi (P. W. 6), he

had not only performed the post-mortem on the deceased

persons, but has also opined that the death of both the

persons is due to shock and hemorrhage caused by the

fire arm injuries.

Secondly, since the complainant, Anil Kumar

Bhati (P.W. 39), and the other eye witnesses have

neither named, nor identified the appellant, the entire

case against the appellant is based on circumstantial

evidence. Therefore, this Court is not discussing the

issue whether the two deceased persons had died a

homicidal death, or not? The only issue before this Court

is whether the circumstantial evidence are so complete as

to point unerringly towards the guilt of the appellant, or

not in the commission of the alleged offences?

20. 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.

21. 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 conidering 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."

22. Keeping the above principles in mind, this

Court is required to critically examine the evidence

produced by the prosecution against the appellant.

23. Anil Kumar Bhati (P.W. 39) lodged a written

complaint (Ex. Ka. 30) in the Police Station Dadri,

wherein he claimed that seven to eight unknown persons

had shot his uncle, who was seated in a car along with his

friend, Udai Ram Arya. Due to the firearm injuries, both

the persons had died on the spot. However, in his

complaint (Ex. Ka. 30), he neither describes, nor names

the appellant. Moreover, in his examination-in-chief, he

reduces the number of assailants from seven to eight, to

merely two. But, even in his deposition before the

learned Trial Court, he does not identify the appellant as

the assailant. Although, he describes the height and the

age of the two assailants, in his examination-in-chief, he

readily admits in his cross-examination that it is for the

first time that he is describing the personal traits of the

two assailants. Interestingly, despite the fact that the

appellant was arrested, the CBI never held a Test

Identification Parade for the appellant, by the

complainant, or by any other eyewitnesses. Therefore,

the presence of the appellant and his being the author of

the fatal injuries is completely based on circumstantial

evidence.

24. Both the prosecution and the learned Trial

Court have heavily relied upon a 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?

25. 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".

26. 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.

27. 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.

28. Section 66 of the Evidence Act prescribes the

procedure for production of a secondary evidence.

29. 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.

30. 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.

31. 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".

32. 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.

33. 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.

34. Nowhere it is 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.

35. 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.

36. 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".

37. 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.

38. 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.

39. 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.

40. 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. Hence, the first linking

evidence against the appellant loses all its evidentiary

value.

41. Moreover, in the case of Paltan Mallah &

others (supra), 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

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".

42. Similarly, in the present case, the deceased

had made certain general statements about apprehending

danger from the appellant and 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".

43. Both the prosecution and the learned Trial

Court have heavily relied upon the alleged recovery of

AK-47 rifle from the possession of the appellant.

Mamchand, Inspector (P.W. 27) informs the Court that on

18.06.1996, he was the SHO of Police Station Pehwa,

District Kurukshetra in Haryana. On the said date, at

night, they received an information that Pal Singh and

Jaspal Singh were sleeping outside the house of Jessa

Singh. Upon this information, he, along with Inspector

Surendra Singh and other police personnel, went to the

said village. He further claims that the police party

divided themselves and surrounded each house of the

village. Due to the commotion made by the police party,

Pal Singh, Jessa Singh and others woke up. He further

states that Pal Singh pulled out an AK-47 gun from the

side of his bed, and pointed it towards the police

personnel. Meanwhile, Jaspal Singh also pulled out a

self-loading rifle from underneath the bed, and pointed it

towards the police personnel. However, the police

personnel overpowered both Pal Singh and Jaspal Singh,

and recovered the firearms. Furthermore, he claims that

the AK-47 rifle recovered from Pal Singh was loaded.

Therefore, it was unloaded. According to him, the

recovery memo was prepared and it was marked as Ex.

Ka. 81. According to the recovery memo (Ex. Ka. 81),

the number written on the AK-47 is "K 01527/1949T".

He further claims that on 03.07.1996, while he was the

SHO at Police Station Pehwa, the CBI had taken both the

AK-47 and the assault rifle in their custody. While taking

the possession, the CBI had prepared receipts/seizure

memo, which was marked as Ex. Ka. 83. The number

written is "KO1527/1949T". In his cross-examination, he

admits that the AK-47 was given to the CBI in an

unsealed condition.

44. Naveen Chandra Jha (P.W. 41), the Deputy

Superintendent of Police, CBI, in his cross-examination,

also admits that since he had received the AK-47 rifle in

an unsealed condition, he did not seal the said weapon.

Even during the trial, the weapon was produced in the

Court in an unsealed condition. According to this witness,

the number on the weapon is "KD1527/4949F".

Interestingly, this witness has not been declared as

hostile with regard to the number of inscribed on the

weapon.

45. Thus, there is a clear cut contradiction between

the number recorded in the seizure memo (Ex. Ka. 81)

and the number inscribed in the weapon produced in the

Trial Court. According to the recovery memo (Ex. Ka.

81), the number is "KO", whereas according to Naveen

Chandra Jha (P. W. 41), the number inscribed on the AK-

47 rifle produced in the Court is "KD".

46. The Trial Court had the benefit of visually

examining the AK-47 rifle, which was submitted as a

material object by the prosecution. The learned Trial

Judge clearly stated that on a visual examination of the

AK-47 rifle, it discovered that the number written on the

AK-47 gun is "KO1527" and under this number is the

number "4949F". Needless to say even this number does

not tally with the seizure memo (Ex. Ka. 81). For,

according to the seizure memo, the number written on

the AK-47 rifle is "KO1527/1947T". However, in order to

align the letter "T", as mentioned in the seizure memo

(Ex. Ka. 81), the learned Trial Court states that the letter

"F" can be read as letter "T". The learned Trial Judge

further states that on the bridge of the AK-47 rifle, the

number inscribed is "KD1527". Surprisingly, he reads the

letters "KD" as "KO" in order to harmonize the testimony

of Naveen Chandra Jha (P.W. 41) and the number given

in the seizure memo (Ex. Ka. 81).

47. The learned Trial Judge further observes that in

the FSL report (Ex. Ka. 71), the number written is

"KO1527/1949". However, even this is a misreading of

the FSL report (Ex. Ka. 71). For, a bare perusal of the

said document clearly reveals that the number written in

the document is "K" and the next letter is unclear as the

next letter is handwritten, rather than typed. Moreover,

the remaining part of the numbers is "1527/1949T".

Therefore, the learned Trial Court misreads the number

shown in the FSL report (Ex. Ka. 71).

48. The learned Trial Judge further observes that

different witnesses have given different numbers, or just

part of the number inscribed on the AK-47 gun. But then

surprisingly the learned Trial Court concludes that "even

if there is a contradiction about the numbers, it does not

make the recovery a suspicious one". Needless to say,

that each weapon is assigned a particular number by the

manufacturer. Therefore, the only means of identifying a

weapon is through its particular number inscribed upon it.

The number on a weapon is similar to a chassis number

in a car. In case there is confusion about the number

inscribed on a weapon, or the number noted in a seizure

memo, or about a number given by the prosecution

witness, it will certainly create a grave doubt about the

veracity of the said recovery. The contradiction between

the seizure memo (Ex. Ka. 81) and the number given by

the prosecution witness, the contradiction between the

number given in the seizure memo (Ex. Ka. 81) and the

number, which is visually apparent, has not been

explained by the prosecution. This lacuna in the

prosecution case cannot and should not have been filled

in by the learned Trial Court by saying that the letter "F"

can be read as letter "T", or the letter "O" can be read as

letter "D". Moreover, the contradiction between the

number "1949" and "4949" has been ignored totally by

the learned Trial Court.

49. Since the very number inscribed on the AK-47

rifle is caught in a bundle of confusion, it is unclear as to

which AK-47 rifle was allegedly recovered from the

possession of the appellant. Moreover, since the weapon

at the time of recovery was never sealed by the police,

since the unsealed weapon was handed over to the CBI

by the Police, the genuineness of the recovery of AK-47

rifle becomes highly suspect. Therefore, the recovery of

the AK-47 rifle from the possession of the appellant

cannot be believed.

50. The Hon'ble Supreme Court in the case of

Pancho v. State of Haryana, [(2011) 10 SCC 165]

has opined as under :-

"12. A2-Pancho was arrested on 16/8/1999 near Dabchick Modale. According to the prosecution, his search resulted in recovery of a country made pistol (Ex-P/12) of .315 bore. The recovery of country made pistol is made more than about six months after the date of incident. It is true that the report of FSL (Ex- PT) states that the country made pistol marked W/1 was test fired and that bullet marked BC/1 taken out from the body of deceased Kartar Singh had been fired from the said country made pistol. The report also states that the holes on the clothes of deceased Kartar Singh which were sent for examination, had been caused by bullet projectiles. We are, however, of the opinion that, on the basis of this report, it is difficult to

come to a conclusion that A2-Pancho was responsible for the firearm injury caused to 1 deceased Kartar Singh. The prosecution has not led any evidence to show as to in whose custody this pistol was during the period of six months after the incident. In his statement recorded under Section 313 of the Code, A2- Pancho has denied that any such recovery was made from him. Even assuming that the recovery is proved, we are unable to hold in the absence of any other cogent evidence that it is sufficient to establish that A2- Pancho caused the fatal firearm injury to deceased Kartar Singh with the said pistol".

51. In the present case, AK-47 gun was allegedly

recovered after the lapse of four years. The prosecution

has not produced any evidence to show that the said AK-

47 gun was continuously in the possession of the

appellant for the four years. Therefore, the said recovery

cannot be believed.

52. As far as the testimony of Abhijeet Dey (P.W.

25), the Ballistic Expert, and the ballistic report (Ex. Ka.

71) are concerned, both the testimony and the FSL

Report (Ex. Ka. 71) lose their evidentiary value as the

prosecution has failed to establish the recovery of AK-47

rifle from the possession of the appellant. Since the

recovery itself is doubtful, the FSL report (Ex. Ka. 71),

which is based on the alleged recovery, stands on

extremely weak grounds. Therefore, even if Abhijeet Dey

(P.W. 25) claims that the bullets which were recovered

from the scene of the crime were fired from the AK-47

rifle produced before the FSL, even the said testimony

loses all its significance. Therefore, the prosecution has

singularly failed in proving that the appellant is the

author of the fatal injury. Hence, the appellant's

conviction for the offence under Section 302 IPC is legally

unsustainable.

53. The prosecution has heavily relied upon the

disclosure statement made by the appellant under

Section 27 of the Evidence Act. According to the

appellant, he had gotten the car serviced in September,

1992. Although, he had taken the police to the Somko

Automobiles in Gurgaon, and identified the same,

although the police claims that it has recovered a Service

Register (Ex. Ka. 78) from the said service station, but

even then this evidence is on a weak wicket.

54. Mr. Tara Chand (P.W. 26) informs the Court

that he has been working with the Somko Automobiles

besides New Cont, Gurgaon for the last ten years.

According to him Somko Automobiles is an authorised

service station. Moreover, according to him, when a car

comes, there is a job card that is prepared and history

register is maintained. He further claims that the service

history register is with him. According to him, he

recognizes the signature and the handwriting of Mr. M.S.

Kaushik, who was the Manager in the year 1992 and

1993. He further claims that at Page No. 726, the name

of the customer is shown as Harpal Singh, resident of A-

197 Vikaspuri, Delhi and the number of the car to be

serviced is DL-4C-3597. According to him, this car was

serviced on 09.07.1992. It was the first free service of

the car. He further admits in his examination-in-chief

that at Page No. 726 earlier the name of Mr. G.R. Yadav,

resident of 22-A Apna Bazar, Gurgaon, was written. The

said name of G.R. Yadav was crossed out, and the name

of Harpal Singh was written. According to him, this was

done as the service details of Mr. G.R. Yadav's vehicle

were already noted at Page No. 628. Therefore, the

name of G.R. Yadav, noted at Page No. 726, was crossed

over, and the name of Harpal Singh was entered.

55. In his cross-examination, he further admits

that the original entry at Page No. 726 is of Car No.

3017. The said number has been crossed over, and

another car number, namely DL-4CB-3597, has been

written. He further admits that he did not know when the

overwriting was done.

56. A bare perusal of the register at Page No. 726

clearly reveals that originally the name of Mr. G.R. Yadav

was written. The said name has been crossed out, and

the name of Mr. Harpal Singh has been overwritten.

Originally, the number of the car was noted as DL4C/B

3017. However, subsequently, the number 3017 has

been crossed over, and the number 3597 has been

written in its place. Interestingly, even where the words

and numbers have been crossed out, there is no

signature of the person, who has overwritten on the

page.

57. The explanation given by this witness is clearly

untenable. For, all the pages are written chronologically.

According to Tara Chand (P.W. 26), the name of G.R.

Yadav had to be crossed out as the history card of this

vehicle was already shown at Page No. 628. However, a

perusal of Page No. 628 reveals that even on this page

the name of G. R. Yadav is overwritten. Moreover, even if

for the sake of argument, it is accepted that G.R. Yadav's

car service history was shown at Page No. 628 and was

inadvertently recorded in Page No. 726, even then there

is no reason why the name Harpal Singh, and the

registration number of the car should have been inserted

in Page No. 726. The normal course of human conduct

would have been to create a fresh service card, rather

than overwriting an old one. Therefore, the explanation

given by Tara Chand (P.W. 26) seems to fly in the face of

normal human conduct. Hence, this explanation is rather

strange. Furthermore, there is too much of interpolation

in the Service Register (Ex. Ka. 78). The interpolation

creates a grave doubt about the genuineness of the

Service Register (Ex. Ka. 78).

58. Most importantly, the appellant had claimed

that he had gotten the car serviced in September, 1992.

Yet, the date of service shown in Page No. 726 is

09.07.1992. Therefore, it does not relate to the

disclosure statement. Thus, the Service Register (Ex. Ka.

78) recovered by the CBI does not strengthen the case of

the prosecution against the appellant. The recovery of the

Service Register (Ex. Ka. 78) does not prove the fact that

the getaway car was serviced in September, 1992, just a

few weeks before the commission of the alleged crime.

59. Surprisingly, the learned Trial Court has neither

examined the Service Register (Ex. Ka. 78), nor

discussed the fact that there are overwritings both in the

name and in the registration number of the car.

Therefore, there is a lack of critical assessment of the

evidence readily available on record. Further, the learned

Trial Court has blindly relied upon the fact that a

disclosure statement (Ex. Ka. 113) was made by the

appellant, and a Service Register (Ex. Ka. 78) was

allegedly recovered from the Somko Automobiles in order

to read the said evidence as incriminating evidence--a

link in the chain of circumstances against the appellant.

Thus, the learned Trial Court has accepted a piece of

evidence without critically examining its genuineness, and

its relevancy.

60. The entire Service Register is available before

this Court. In order to verify the veracity of the

explanation given by Tara Chand (P.W. 26), this court

has examined the Service Register. The entire Service

Register runs into 957 pages, and each page bears a

number. This Court has also examined Page No. 628.

Interestingly, on Page No. 628, the original name of the

owner of the car was written as D.R. Yadav. The letters

"D.R." have been crossed over and the letters "G.R."

have been written. There is no explanation offered by

Tara Chand for the overwriting of the letters "D.R.", and

substituting it with the letters "G.R.". The overwriting,

both on Page No. 628 and Page No. 726, envelopes the

entire case of the prosecution in a shroud of mystery.

61. With the help of the testimony of Satpal

Tandon (P.W. 3), the prosecution has tried to prove that

Pal Singh used his pseudonym, namely Harpal Singh.

According to Satpal Tandon (P.W. 3), in September and

November, 1992, he was running the Rainbow Guest

House. He claims that he had maintained a Register

where the name of the client, staying in his guest house,

was entered along with their address. According to him,

the entry is to be made by the guest himself. But many a

times, it is also made by the staff. However, the register

had to be signed by the guest. He claims that in Page

No. 55, Sr. No. 52, dated 25.09.1992, at 06:40, one Mr.

Harpal Singh S/o Gurbachan Singh, resident of 397 Gaon

Rumala, Delhi had made the said entry. Harpal Singh had

come with two other persons. These three persons were

allotted Room No. 13. They left the guest house on

26.09.1992 at 08:30 A.M.

62. However, in his cross-examination, Satpal

Tandon (P.W. 3) readily admits that he is not in a position

to identify the person, who had come to his guest house

as Harpal Singh. Since this witness could not identify the

appellant, the fact that the Guest Register does bear the

name of one Harpal Singh loses all its relevance.

Therefore, the prosecution has failed to establish the fact

that the appellant, Pal Singh, uses the pseudonym of

Harpal Singh.

63. The last piece of evidence read against the

appellant is the alleged absconding by him. Although the

prosecution claims that the appellant was an absconder,

no evidence has been produced to indicate that any step

was taken by the prosecution to have the appellant

declared as an absconder under Section 82 of Cr. P. C.

Moreover, in catena of cases the Hon'ble Supreme Court

has held that absconding is not incriminating evidence.

For, even innocent person tend to leave the place of

commission of crime. Therefore, absconding by itself

cannot form the basis of conviction of the appellant.

64. Section 27(2) of the Arms Act punishes a

person who uses any prohibited arms or prohibited

ammunition in contravention of Section 7 of the Act. The

punishment shall not be less than seven years but which

may extend to imprisonment for life and shall also be

liable to fine.

65. In the present case, the prosecution has

singularly failed to establish the fact that the appellant

had "used AK-47 gun" for commission of the crime.

Therefore, his conviction, under Section 27 of the Arms

Act, is clearly unsustainable.

66. Despite the fact that the evidence produced by

the prosecution is incoherent, chaotic, unacceptable and

mysterious, the learned Trial Court has inter-linked the

evidence in order to complete a chain, which would

unerringly point towards the guilt of the appellant.

67. It is, indeed, a settled principle of criminal

jurisprudence that the prosecution must travel the

distance between "may be true" and "must be true". In

the present case, the prosecution has failed to cover this

long distance. Therefore, the prosecution continues to

exist in the realm that the prosecution case "may be

true".

68. However, as discussed hereinabove, neither the

evidence taken individually, nor holistically, unerringly

point towards the guilt of the appellant. Therefore, the

prosecution has failed to establish its case against the

appellant.

69. 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, hereby, set aside. Since the prosecution has failed to

establish its case, and since the prosecution case

continues to be an animated suspension of "may be true",

this Court acquits the appellant by giving him the benefit

of doubt. Hence, the appellant is acquitted of the offences

punishable under Sections 302, 307 & 326 IPC, and

Section 27 of the Arms Act. Since the appellant is on bail,

his bail bonds shall stand discharged.

(RAGHVENDRA SINGH CHAUHAN, C.J.)

(ALOK KUMAR VERMA, J.)

Dt: 23rd November, 2021 NISHANT