Uttarakhand High Court
State Of Uttarakhand vs Ashok Chhabra And Jagdish Chhabra on 16 April, 2024
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE THE CHIEF JUSTICE MS RITU BAHRI
AND
HON'BLE JUSTICE SHRI ALOK KUMAR VERMA
16TH APRIL, 2024
GOVERNMENT APPEAL NO. 84 OF 2015
State of Uttarakhand ...... Appellant
Vs.
Ashok Chhabra and Jagdish Chhabra
alias Jagga ......Respondents
WITH
GOVERNMENT APPEAL NO. 85 OF 2015
State of Uttarakhand ...... Appellant
Vs.
Anil Chhabra and two Others ......Respondents
Counsel for the Appellant : Mr. J.S. Virk, Deputy
Advocate General.
Counsel for the Respondent : Ms. Surriya Naz, Advocate
holding brief of Mr. Lalit
Sharma, Advocate.
Upon hearing the learned counsel for the parties, this
Court made the following judgment :
(Per : Shri Alok Kumar Verma, J.)
These two Appeals have arisen from a common
judgment dated 23.01.2015, passed by learned IIIrd
2
Additional Sessions Judge, Rudrapur, District Udham Singh
Nagar in Sessions Trial No.207 of 2011, "State vs. Anil
Chhabra and two Others", by which, the respondents-
accused persons have been acquitted from the offence
punishable under Section 302 read with Section 34 of the
Indian Penal Code, 1860 (in short, "IPC"), and, in Sessions
Trial No.208 of 2011, "State vs. Ashok Chhabra and
Another", by which, the respondents-accused persons have
been acquitted from the offence punishable under Section
25 of the Arms Act, 1959.
2. The Government Appeal No.85 of 2015 will be
treated as a leading case.
3. In short, the prosecution case is that the informant
Dilshad (PW1) informed the police Gadarpur, District Udham
Singh Nagar through his written information (Ext. Ka.1)
dated 14.04.2011 that Anil Chhabra used to show obscene
films to the minor son of his brother Kalua on internet in
cyber café. When Kalua came to know about it, he went to
the cyber café. The owner of the cyber café called Anil
Chhabra and Jagdish Chhabra alias Jagga. All three of them
fired at the informant's brother. Hanif (PW3) and Mobin Ali
(PW2) saved the informant's brother and brought him
home. At the same time, the said three persons armed with
licensed and country-made pistols reached the door of the
informant's brother's house, where the informant's brother
3
was standing. They opened fire on the informant's brother.
Hanif, Mobin Ali and other persons took him to the hospital.
He died on the way.
4. On the said information (Ext. Ka.1), an FIR
(Ext.Ka.4) was registered against the respondents-accused
persons Anil Chhabra, Ashok Chhabra and Jagdish Chhabra
alias Jagga under Section 302 IPC read with Section 34 IPC
by the prosecution witness PW9 on 14.04.2011 at 21:30
hrs.
5. Inquest proceedings were conducted on
14.04.2011 and post-mortem examination of the dead body
was conducted on 15.04.2011.
6. Respondents-accused persons Anil Chhabra,
Jagdish Chhabra alias Jagga and Ashok Chhabra were
arrested on 15.04.2011.
7. On 27.04.2011, one country-made pistol at the
instance of the respondent-accused Ashok Chhabra and one
country-made pistol at the instance of the respondent-
accused Jagdish Chhabra alias Jagga were recovered from
the bushes.
8. An FIR (Ext. Ka.20) against Ashok Chhabra and
Jagdish Chhabra alias Jagga was registered under Section
25 of the Arms Act, 1959 on 27.04.2011 at 14:50 hrs.
4
9. The recovered pistols were sent to the Forensic
Science Laboratory for examination. Site maps were
prepared. Sanction (Ext.Ka.22) of the District Magistrate,
Udham Singh Nagar was obtained to institute prosecution.
Upon conclusion of the investigation, charge-sheets were
filed by the Investigating Officer.
10. Charges were framed against the respondents-
accused persons. As the accused persons pleaded
innocence, trial was held.
11. The prosecution examined twelve witnesses.
12. Statements under Section 313 of the Code of
Criminal Procedure, 1973 were recorded. The respondents-
accused persons denied all the incriminating evidence,
produced by the prosecution.
13. Heard learned counsel for the parties.
14. Mr. J.S. Virk, Deputy Advocate General appearing
for the State/appellant contended that there are sufficient
evidence on record against the respondents-accused
persons, therefore, the judgment of acquittal is not justify.
15. Ms. Surriya Naz, learned counsel appearing for
the respondents-accused persons has supported the
impugned judgment.
16. We have carefully assessed the evidence,
produced by the prosecution.
5
17. PW1 Dilshad, the informant and brother of the
deceased, witnesses Mobin Ali (PW2) and Hanif (PW3) have
not supported the prosecution case.
18. PW1 Dilshad has stated in his examination-in-
chief that he was in the market at the time of the incident.
He does not know who shot his brother. He also does not
know that there was any dispute with the accused persons
regarding his brother's son. The information (Ext. Ka.1) was
written by someone from the public and his thumb
impression was put on it by him.
19. PW2 Mobin Ali has stated that he was not present
at the spot at the time of the incident and did not see the
accused persons at the spot. He does not know who had
committed murder of Kalua.
20. PW3 Hanif has stated that when he reached the
house of Irshad alias Kalua, he saw that Kalua was injured
and unconscious. When he asked the persons present on
the spot about the incident, they told him that bullets had
been fired during the stampede.
21. PW4 Mohammad Rafi stated that he was not
present at the spot at the time of the incident and the police
had not collected plain and blood stained soil from the spot
in his presence.
22. PW6 Gulam Gaus is a witness of the inquest
proceeding.
6
23. PW11 Naresh Chand, the Incharge- Inspector and
PW8 Madan Lal, the Sub-Inspector, witness of the alleged
country-made pistols have stated that on 27.04.2011, in
the presence of Hanif (PW7), country-made pistols were
recovered at the behest of accused Ashok Chhabra and
Jagdish Chhabra. But, Mohd. Hanif (PW7) has not supported
Naresh Chand (PW11) and Madan Lal (PW8). He has
deposed that the police had not recovered the country-
made pistols in his presence.
24. Dr. R.K. Sinha (PW10) and Dr. S.S. Kunwar
conducted the post-mortem examination of the dead body
of the deceased on 15.04.2011. As per the post-mortem
report (Ext. Ka.5), the cause of death of the deceased was
haemorrhage and shock due to anti-mortem gunshot injury.
25. PW11 Naresh Chand, the Investigating Officer,
recorded the statements of the witnesses, prepared the site
plan of the incident site (Ext. Ka.6), recovered a blood
stained bullet from the incident site, collected plain and
blood stained soil from the spot, recovered alleged country-
made pistols and prepared a site plan of the recovery site
(Ext. Ka.9).
26. PW12 Om Prakash, the Incharge-Inspector,
recorded the statements of the witnesses and filed charge-
sheets.
7
27. Although, gunshot injury was found on the dead
body of the deceased, the prosecution has to prove that the
death of the deceased was caused by the respondents -
accused persons and in all human probabilities, the act
must have been done by the respondents - accused
persons. Even grave suspicion cannot take place of proof.
There is no positive, cogent and reliable evidence placed on
record against the respondents - accused persons by the
prosecution to prove its case against them.
28. Therefore, we are, in complete agreement with
the view taken by learned Trial Court. We see no reason to
interfere with the judgment impugned herein.
29. As a result, the present both the appeals are
liable to be dismissed. The Government Appeals are
dismissed accordingly.
30. A copy of this judgment be placed on the record
of Government Appeal No.84 of 2015.
________________
RITU BAHRI, C.J.
___________________
ALOK KUMAR VERMA, J.
Dated: 16.04.2024
JKJ/Pant
