2011 vs Sanjay Shah And Another"
2022 Latest Caselaw 2206 UK

   IN THE HIGH COURT OF UTTARAKHAND AT
                           NAINITAL


           THE HON'BLE SRI SANJAYA KUMAR MISHRA
                              AND
              THE HON'BLE SRI ALOK KUMAR VERMA



                         21ST JULY, 2022


             GOVERNMENT APPEAL NO.9 OF 2013


  Between:

  State of Uttarakhand                          ...Appellant

  and


  Sanjay Shah and Another                     ...Respondents

with GOVERNMENT APPEAL NO.11 OF 2013

Between:

  State of Uttarakhand                          ...Appellant

  and


  Sanjay Shah                                 ...Respondent




  Counsel for the State/      :   Mr. J.S. Virk, learned Deputy
  Appellant                       Advocate General.

  Counsel for the             :   Mr. Aditya Singh.
  Respondents

The Court made the following:




Judgment:     (per Hon'ble SRI ALOK KUMAR VERMA, J.)

These two Government Appeals are directed against

a common judgment dated 10.10.2012, passed by the learned

Additional Sessions Judge, Almora in Sessions Trial No.27 of

2011, "State vs. Sanjay Shah and Another", whereby, the

learned trial court has acquitted the respondents-accused

persons from the charge of Section 302 read with Section 34

of IPC, and, in Sessions Trial No.5 of 2012, "State vs. Sanjay

Shah", whereby, the respondent has been acquitted from the

offence punishable under Section 30 of the Arms Act, 1959.

These two Government Appeals are connected appeals,

therefore, these two Government Appeals are being decided by

this common judgment.

2. Briefly stated the prosecution story as it emerges

from re-appreciation of the evidence on record is that, on

07.06.2011, the marriage of the brother of the deceased

Dinesh Rawat's wife was attended by the deceased Dinesh

Rawat, his friends the deceased Ram Singh Bhandari, witness

Data Ram, Constable (PW4) and witness Yashpal Singh (PW5).

Dinesh Rawat's father Narayan Singh Rawat (PW1) was also

present in the said marriage. Dinesh Rawat, Ram Singh

Bhandari, Data Ram and Yashpal Singh had come back from

marriage ceremony at around 3.45 p.m. They had taken

alcohol and their food. At around 10 p.m., Data Ram (PW4)

and Yashpal Singh (PW5) had left for Ranikhet along with

Dinesh Rawat in a new Maruti WagonR car of Dinesh Rawat.

While Ram Singh Bhandari had left for Ranikhet by motorcycle.

When Ram Singh Bhandari was on his way to Ranikhet, his

motorcycle slipped. Ram Singh Bhandari received injuries in

that accident, due to which he sat in the car of Dinesh Rawat.

3. On 08.06.2011 at around 12 O' clock in the night,

Narayan Singh Rawat, father of the deceased Dinesh Rawat,

was informed by the village Pradhan that two dead bodies

were found in the car of Dinesh Rawat. Narayan Singh Rawat

reached the spot at around 3 O' clock and saw that the

windows of the car were closed and the dead body of Ram

Singh Bhandari was lying on the front seat and the dead body

of Dinesh Rawat was lying on the back seat of the car.

4. On 09.06.2011, inquest proceedings were

conducted. Patwari Bhupal Giri Goswami (PW6) prepared the

inquest report (Ext. Ka.5).

5. On the same day i.e. on 09.06.2011, the post-

mortem examination of dead bodies of Ram Singh Bhandari,

aged about 27 years, and, of Dinesh Rawat, aged about 30

years, were conducted by Dr. Deep Prakash (PW13) at 02.10

p.m. and 04.00 p.m. respectively.

6. On 09.06.2011 at 05.00 p.m., an FIR (Ext. Ka.25)

was registered against the unknown persons on the basis of a

written report (Ext. Ka.1) of Narayan Singh Rawat (PW1).

7. The blood-stained clothes of the deceased persons

were taken by the police.

8. Statements of Data Ram (PW4) (Ext.Ka.3) and

Yashpal Singh (PW5) (Ext. Ka.4) under Section 164 of the

Code of Criminal Procedure, 1973 were recorded on

11.07.2011 and 18.07.2011 respectively. According to the

statements of Data Ram and Yashpal Singh, under Section 164

of the Code of Criminal Procedure, they had seen the incident

in the light of the motorcycle, but, the injured Dinesh Rawat

had told them that the incident was caused by Sanjay Shah

and Yogesh Mainali.

9. On an information of a secret informer, the accused

persons, namely, Sanjay Shah and Vikas alias Yogesh Mainali

were arrested on 13.07.2011. At the time of their arrest, one

revolver 0.32 bore (material Ext.14) and a license of the said

revolver were recovered from the possession of the accused

Sanjay Shah. He confessed his guilt and stated that he and

Vikas alias Yogesh Mainali had murdered Dinesh Rawat and

Ram Singh Bhandari with that revolver. A recovery memo

(Ext. Ka.28) was prepared by Inspector Rami Ram (PW11).

According to the recovery memo, in spite of an endeavour, no

independent witness could be secured. A site plan (Ext. Ka.36)

was prepared by Inspector Rami Ram. The blood-stained

clothes and recovered revolver were sent to the Forensic

Science Laboratory. After completion of the investigation,

charge-sheet (Ext. Ka.41) was filed by Inspector Rami Ram

(PW11) against both the respondents-accused persons, and,

after taking sanction from District Magistrate, Sub-Inspector

Ballabh Bhatt (PW12) had filed a charge-sheet (Ext. Ka.44)

under Section 30 of the Arms Act, 1959 against the accused

Sanjay Shah.

10. The accused persons denied the charge and claimed

to be tried.

11. In order to bring home the guilt of the accused

persons, the prosecution examined as many as thirteen

witnesses.

12. Statements of the accused persons were recorded

under Section 313 of the Code of Criminal Procedure, wherein

they denied the entire evidence of the prosecution. According

to the accused Sanjay Shah, his licensed revolver was taken

by the police after calling him to the office of Superintendent

of Police, Almora.

13. The accused persons have not adduced any defense

evidence.

14. The learned trial court heard arguments, appreciated

the evidence, and held that the prosecution has failed to prove

its case against the accused persons beyond all reasonable

doubt.

15. Heard the learned counsel for both the parties.

16. Mr. J.S. Virk, the learned Deputy Advocate General

for the State, submitted that the learned trial court has

completely overlooked the glairing facts of the case according

to which, the involvement of the accused persons has been

proved; the evidence of Data Ram (PW4) and Yashpal Singh

(PW5) are trustworthy; the accused-respondent Sanjay Shah

had confessed his guilt and a licensed revolver, used in the

murder, was recovered from the possession of the accused

Sanjay Shah. He further submitted that the guilt of the

respondent-accused persons are fully proved. Therefore, the

judgment of acquittal is not justified in the eyes of law.

17. On the other hand, Mr. Aditya Singh, the learned

counsel for the respondents supported the impugned

judgment.

18. The law is well settled that the judgment of acquittal

strengthen the presumption of the innocence of the accused. It

is equally the duty of the Court to see that the guilty do not

escape punishment. Therefore, we have carefully assessed the

evidence adduced by the prosecution.

19. The learned counsel appearing for the State relied

upon following evidence :-

(i) That the respondent-accused Sanjay Shah had

admitted his guilt.

(ii) That a revolver, which was used in crime, was

recovered from the possession of the respondent-accused

Sanjay Shah.

(iii) That the evidence of Data Ram (PW4) and Yash Pal

Singh (PW5) are sufficient to prove the guilt of the

respondents-accused persons.

20. Section 25 of the Indian Evidence Act is broadly

worded and it excludes from evidence a confession made by

the accused to a police officer under any circumstances and a

confession made by a person while he was in the custody of

the police is also inadmissible under Section 26 of the Indian

Evidence Act unless made in the immediate presence of a

Magistrate.

21. Now, the crucial question which arises for

consideration is that whether the death was caused by the

revolver (material Ext.14).

22. According to the chemical examination report dated

27.08.2011 of the Forensic Science Laboratory Uttarakhand,

firing discharge residues were detected in the barrel of the

0.32 bore revolver, therefore, conclusion was that 0.32 bore

revolver had been fired through.

23. According to the prosecution, bullet was not

recovered/seized. Therefore, it is not proved that the incident

was caused by the firearm which was sent for examination.

The record reveals that blood-stained clothes of the deceased

persons were sent for examination. But, this fact alone would

not lead to the conclusion that the respondents had committed

the crime. Therefore, the prosecution has failed to prove by

leading cogent evidence that in fact, the respondent Sanjay

Shah fired from the firearm (material Ext.14).

24. Mr. Aditya Singh, the learned counsel for the

respondents argued that the evidence of Data Ram (PW4) and

Yash Pal Singh (PW5), on which the prosecution relied on for

holding the respondents guilty, is not reliable because the

statements of the Data Ram and Yash Pal Singh were recorded

under Section 164 of the Code of Criminal Procedure for the

first time on 11.07.2011 and 18.07.2011 respectively more

than one month after the incident.

25. According to Inspector Rami Ram (PW11), statement

of Data Ram under Section 161 of the Code of Criminal

Procedure was recorded on 07.07.2011. The Investigating

Officer did not assign any reason as to why so much delay was

caused in recording their statements during the investigation.

26. According to the statements of Data Ram and Yash

Pal Singh, they had seen the incident in the light of the

motorcycle, but, the injured Dinesh Rawat had told them that

the incident was caused by Sanjay Shah and Yogesh Mainali. It

is not the case of the prosecution that test identification

parade was conducted. Whereas, Rami Ram (PW11) has given

his statement that Narayan Singh Rawat, informant, in his

statement under Section 161 of the Code of Criminal

Procedure had raised suspicion on Data Ram and Yash Pal

Singh, who were with the deceased persons at the time of the

incident.

27. PW-4 Data Ram, Constable, has stated in his

evidence that he had reported this incident to his Lieutenant

Colonel, but, he has not given any such statement under

Section 161 of the Code of Criminal Procedure.

28. PW-5 Yash Pal Singh has stated in his evidence that

he had not reported the incident to any one earlier as he was

panicked.

29. In Jagjit Singh alias Jagga vs. State of Punjab,

(2005) 3 SCC 689 and State of Andhra Pradesh vs. S.

Swarnalatha and Others, (2009) 8 SCC 383, the Hon'ble

Supreme Court held that the delay in examination of a witness

in the course of investigation if not properly explained creates

a serious doubt about the reliability of the evidence of the

witness.

30. In the present matter, the prosecution has not

properly explained as to why so much delay was caused in

recording the statements of Data Ram and Yash Pal Singh

during the investigation.

31. Although, according to Dr. Deep Prakash (PW13),

firearm injuries were found on the dead bodies of the deceased

persons and the death of the deceased persons were homicide,

the prosecution has to prove that the death of the deceased

persons were caused by the respondents and in all human

probabilities, the act must have been done by the respondents

only. It also becomes clear, from the perusal of the record,

that no motive is attributed to the respondents.

32. In Bhagwan Singh and Others vs. State of M.P.,

(2002) 4 SCC 85, the Hon'ble Supreme Court observed that

the golden thread which runs through the web of

administration of justice in criminal case is that if two views

are possible on the evidence adduced in the case, one pointing

to the guilt of the accused and the other of his innocence, the

view which is favorable to the accused should be adopted.

33. It is also a basic rule of the criminal jurisprudence

that suspicion, however, strong cannot take place of proof. In

Sujit Biswas vs. State of Assam, AIR 2013 SC 3817, the

Hon'ble Supreme Court held that suspicion, however grave it

may be, cannot take the place of proof, and there is a large

difference between something that "may be" proved, and

something that "will be proved". In a criminal trial, suspicion

no matter how strong, cannot and must not be permitted to

take place of proof. This is for the reason that the mental

distance between "may be" and "must be" is quite large, and

divides vague conjectures from sure conclusions. In a criminal

case, the Court has a duty to ensure that mere conjectures or

suspicion do not take the place of legal proof. The large

distance between "may be true" and "must be true", must be

covered by way of clear, cogent and unimpeachable evidence

produced by the prosecution, before an accused is condemned

as a convict, and the basic and golden rule must be applied.

34. On a detailed examination and scrutiny of the

evidence of the prosecution, this Court upholds the view taken

by the learned trial court. In our considered view, the

prosecution has failed to establish the commission of alleged

offence by the respondents-accused persons beyond all

reasonable doubt. They deserve benefit of doubt. We are,

therefore, in complete agreement with the view taken by the

learned trial court and see no reason to interfere with the

judgment and order impugned herein.

35. As a result, both the appeals, i.e. Government

Appeal No.9 of 2013 and Government Appeal No.11 of 2013,

are liable to be dismissed. These two appeals are dismissed

accordingly.

____________________ Sanjaya Kumar Mishra, J.

___________________ Alok Kumar Verma, J.

Dated: 21.07.2022 JKJ/Pant