Uttarakhand High Court

Yunus vs State Of Uttarakhand on 14 February, 2025

Author: Ravindra Maithani

Bench: Ravindra Maithani, Alok Kumar Verma

                                                    Reserved on: 03.01.2025
                                                    Delivered on: 14.02.2025
     HIGH COURT OF UTTARAKHAND AT NAINITAL
                   Criminal Appeal No. 367 of 2012
Yunus                                            ..........Appellant

                                     Vs.

State of Uttarakhand                                    ........ Respondent

Present :   Mr. Ajay Veer Pundir, Advocate for the appellant.
            Mr. S.S. Chauhan, Deputy Advocate General for the State.


                                With
                   Criminal Appeal No. 371 of 2012
Bijendra                                          ..........Appellant

                                     Vs.

State of Uttarakhand                                      ........ Respondent

Present :   Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Hemant
            Singh Mehra with Mr. K.G. Chhokar, Advocates for the appellant.
            Mr. S.S. Chauhan, Deputy Advocate General for the State.

                                With
                   Criminal Appeal No. 147 of 2013
Nitin Rana                                                 ..........Appellant

                                     Vs.

State of Uttarakhand and another                       .......... Respondents

Present :   Mr. Ramji Srivastava, Advocate for the appellant.
            Mr. S.S. Chauhan, Deputy Advocate General for the State.
            Mr. S.R.S. Gill, Advocate for respondent no.2.


                               JUDGMENT

Hon'ble Ravindra Maithani, J.

Hon'ble Alok Kumar Verma, J.

Per: Hon'ble Ravindra Maithani, J.

1. Since all these appeals arise from a common judgment

and order, they are being heard and decided together.

2. All these appeals have been preferred against the

judgment and order dated 12.12.2012, passed in Sessions Trial

No.169 of 2004, State vs. Yunus and Sessions Trial No.498 of 2004,

State vs. Brijendra and another, by the court of Fifth Additional

Sessions Judge, Haridwar. By the impugned judgment and order,

the appellants Yunus and Bijendra have been convicted under

Section 302 read with Section 34 IPC and sentenced to life

imprisonment with a fine of `5,000/- each. Appellant Bijendra has

further been convicted under Sections 506(2) IPC and sentenced to

one year rigorous imprisonment with a fine of `1,000/-. One of the

accused in the case, Sanjay Pal has been acquitted.

3. Criminal Appeal No.367 of 2012 has been preferred by

the appellant Yunus, Criminal Appeal No.371 of 2012 has been

preferred by the appellant Bijendra against their conviction and

sentence and Criminal Appeal No.147 of 2013 has been preferred

by the first informant against the acquittal of respondent no.2,

Sanjay Pal.

4. Shorn of unnecessary details the prosecution case

briefly stated as per FIR is a follows:-

(i) On 04.03.2003, informant Nitin Rana (PW1) was

standing just below his house at 10:30 in the night

along with two of his uncles namely, Harendra Singh

and Sudhir, who had visited them on that date from

Bulandshahr. At that time, the deceased Rajpal Singh

arrived in his Indica Car bearing Registration

No.DL8C-F-6768. He stopped the car. As soon as he

alighted from the car, the FIR states that a white

colour Indica Car bearing Registration No.UA08 4700

followed him and appellant Yunus and two other

unknown persons de-boarded from that car and

opened fire at Rajpal Singh, due to which, he fell on

the ground. The appellant Yunus and his associates

boarded the same car, in which, they had come and

ran away towards Block. The informant with the help

of Harendra Singh (PW10) and Sudhir took the

deceased to the Pal Nursing Home, where police had

also arrived. Since, the incident had legal

implications, as per advise of the doctor, according to

the FIR, the informant took the deceased to Civil

Hospital Roorkee, where he was declared brought

dead. The dead body was still in the mortuary in the

civil hospital when the FIR was lodged. The FIR

further records the motive, according to it, the

deceased had got some construction carried out

through the appellant Yunus. There was a dispute

with regard to the accounts. The appellant Yunus had

on multiple occasions, telephonically threatened the

deceased to his life and on many occasions, the

appellant Bijendra had also while taking side of the

appellant Yunus, threatened the deceased.

(ii) According to the FIR, on 04.03.2003 in the evening,

appellant Bijendra had threatened the deceased

telephonically when he was in Kankhal, sitting with

Onkar Singh, Arun Bhatnagar and Bhanwar Singh.

Based on this report, chik FIR (Ex. A-11) was recorded

and a case under Sections 302, 120-B IPC was lodged

against the appellants Yunus, Bijendra and two

others. The extracts of General Diary Entry is Ex. A-8.

The inquest of the deceased was conducted on

05.03.2003 (Ex. A-4) and the dead body was sent for

postmortem. Postmortem of the deceased was

conducted on 05.03.2003 by PW6 Dr. K.C. Pant. The

Investigating Officer ("IO") prepared a site plan of the

incident (Ex. A-9) and on 05.03.2003 itself, took into

possession a cartridge case of .315 Bore. He prepared

a recovery memo (Ex. A-10). The clothes and other

articles were sent for forensic examination. Forensic

Science Laboratory, Agra, Uttar Pradesh ("FSL")

reported that the cartridge case was fired from the

.315 rifle, which was sent for examination. This report

is Ex. A-14. There is another FSL Report (Ex. A-15)

with regard to the clothes, etc. of the deceased.

(iii) In the instant case, by the order of the court,

cartridge case and .315 rifle were further sent for

examination to the Central Forensic Science

Laboratory, Chandigarh. This report is Ex. A-18,

which reveals that the cartridge case was not fired

through .315 rifle, that was sent for examination. Its

genuineness has been admitted by the defence.

5. It may be noted that just opposite to the place of

incident, there was a police picket post. PW9 Sub-Inspector Udai

Veer Singh Sirohi with Police Constables was on duty at the

picket post at the time of incident. He also reached at the place

of incident and immediately informed Police Control Room about

the incident. The document of Police Control Room is Ex. A-3. It

records at 10:33 PM that, "at Ramnagar Chauraha, the

occupants of a Maruti car white colour No. UA08 4700

fired at some person". This is Ex. B-3. The Police Control

Room was again informed at 10:50 PM on the same date that the

person, who was shot, has been killed and he was Rajpal Singh.

This extract of Police Control Room record is Ex. B-4. They both

have been proved by PW12 Nanke Singh Jainwar, who was

Inspector CBCID at the relevant time and who conducted the final

investigation and submitted charge-sheets.

6. After investigation, a separate charge-sheet has been

submitted against the appellant Yunus, which is Ex. A-13 and the

charge-sheet against the appellants Bijendra and Sandeep alias

Sanjeev and Sanjay Pal is Ex. A-14.

7. On 14.06.2004, charge under Section 302 read with

Section 34 and 506 IPC was framed against the appellant Yunus

and on 09.08.2005, charge under Section 302 read with Section 34

and Section 506 IPC was framed against the appellant Bijendra and

Sandeep alias Sanjeev and Sanjay Pal.

8. During trial of the case Sandeep alias Sanjeev had died,

therefore proceedings have been abated against him.

9. In order to prove its case, the prosecution has

examined 13 witnesses namely, PW1 Nitin Rana, PW2 Onkar Singh,

PW3 Smt. Pushpa Devi, PW4 Jitendra Singh, PW5 Dr. Ajay

Agarwal, PW6 Dr. K.C. Pant, PW7 Mahendra Singh Negi, PW8 Ajay

Chauhan, PW9 SI Udai Veer Singh Sirohi, PW10 Harendra Singh,

PW11 Constable Naresh Kumar, PW12 Nanthey Singh Jainwar and

PW13 Constable Pradeep Maithani.

10. The appellants were examined under Section 313 of the

Code of Criminal Procedure, 1973 ("the Code"). According to them,

they have been falsely implicated. All the documents were forged to

implicate them. By the impugned judgment and order, the

appellants Yunus and Bijendra have been convicted and sentenced,

as stated hereinbefore; and Sanjay Pal has been acquitted.

Aggrieved by their conviction, the appellants Yunus and Bijendra

have preferred appeal against their conviction and sentence,

whereas PW1 Nitin Rana, who is the informant, had preferred the

appeal against the acquittal of Sanjay Pal.

11. Heard learned counsel for the parties and perused the

record.

12. Learned Senior Counsel appearing for the appellant

Bijendra would submit that it is an entirely false case; the eye-

witnesses are not reliable; in fact, they had not seen any incident.

He had raised the following points in his submission:-

(i) No role of firing has been assigned to the appellant Bijendra in the FIR.

(ii) In the FIR, initially the car number was recorded as UA08 7900, but subsequently, it was changed.

(iii) Had PW1 Nitin Rana, PW3 Smt. Pushpa Devi and PW10 Harendra Singh witnessed the incident and PW1 Nitin Rana and PW10 Harendra Singh taken the deceased in an injured condition to the hospital in the car, the clothes of PW1 Nitin Rana and PW10 Harendra Singh would have stained in blood and the car would have also witnessed blood spot. It is argued that neither in the clothes of the witnesses nor blood was detected from the car, in which, the deceased was allegedly taken to hospital.

(iv) The facts and circumstances of the case, makes the presence of PW1 Nitin Rana, PW3 Smt. Pushpa Devi and PW10 Harendra Singh much doubtful at the place of alleged incident.

(v) The presence of PW3 Smt. Pushpa Devi is not recorded in the FIR. It is serious omission, which is material to the extent that it doubts the prosecution case.

(vi) According to the witnesses, PW3 Smt. Pushpa Devi and PW10 Harendra Singh, they knew all the assailants. If it is so, why the FIR has not been named against all the four persons and why their role has not been assigned in the FIR?

(vii) The statement of PW8 Ajay Chauhan is also doubtful.

According to him, he reached at Pal Nursing Home, whereas he admits that he left the police station after the report was lodged. It is argued that in the instant case, the FIR was lodged after the death of the deceased, when his dead body was kept in the mortuary in Civil Hospital Roorkee. In such situation, PW8 Ajay Chauhan had no occasion to visit Pal Nursing Home after lodging of the FIR.

(viii) According to PW5 Dr. Ajay Agarwal, the dead body of deceased was brought to the Civil Hospital Roorkee at 11:20 PM on 04.03.2003 by PW8 Ajay Chauhan.

(ix) Even PW9 Udai Veer Singh Sirohi also says that PW8 Ajay Chauhan had reached at the place of incident.

(x) Based on these assertions, it is argued that had the family members of the deceased been on the spot, they would have immediately taken the deceased to the hospital and in such situation, the police would have no opportunity to take the deceased to the hospital, as stated by PW5 Dr. Ajay Agarwal.

(xi) All the eye-witnesses namely, PW1 Nitin Rana, PW3 Smt. Pushpa Devi and PW10 Harendra Singh are chance witnesses. PW1 Nitin Rana was studying in Dehradun. PW3 Smt. Pushpa Devi is a divorced wife of the deceased, who was staying in her village and PW10 Harendra Singh was admittedly, staying in his village and had visited Roorkee on the date of incident.

(xii) The FIR itself is much doubtful. It writes a story without any substantiated facts; it speaks of a threat extended by the appellant Bijendra to the deceased on the evening of 04.03.2003 in the presence of Onkar Singh, Arun Bhatnagar

and Bhanwar Singh, but it is not clear even after trial, as to how this has been recorded in the FIR because PW2 Onkar Singh has not stated that he told it to PW1 Nitin Rana that any threat was extended telephonically to the deceased on that evening.

(xiii) It is argued that, in fact, the FIR is ante time. It was lodged after much deliberation so as to cook up a story.

(xiv) Some signed statements were given by the witnesses to the IO.

Those signed statements may still be treated as former statements. In support of his contention, learned Senior Counsel has placed reliance on the principle of law as laid down in the case of State of U.P. vs. M.K. Anthony, (1985)1 SCC 505 and State of Rajasthan vs. Teja Ram and others, (1999)3 SCC

(xv) In the case of M.K. Anthony (supra), Hon'ble Supreme Court inter alia held that merely a signed statement was given to the IO by the witness, his statement in the court, may not be discarded. The Hon'ble Supreme Court observed as follows:-

"........................If the Investigating Officer did obtain the signature of Nair an Intimate friend of the respondent speaking about the confession of the respondent, it may be that it may be a violation of Section 162 of the Code of Criminal Procedure but no attempt was made to verify this fact by referring to the case diary. The court is always entitled to look into the case diary. Assuming that Nair's admission that his signature was obtained on the statement recorded by the investigating officer on March 1, 1973, is correct, it does not render his evidence inadmissible. It merely puts the court on caution and may necessitate in-depth scrutiny of the evidence. But the evidence on this account cannot be rejected outright."

(xvi) Similar, proposition has been laid down in the case of Teja Ram (supra).

13. Learned counsel appearing for the appellant Yunus has

adopted the arguments as advanced on behalf of the appellant

Bijendra. In addition to it, it is argued that, in fact, appellant Yunus

has raised certain construction for deceased Rajpal Singh and the

deceased had to pay `8 Lakhs to him. Therefore, in order to avoid

payment to the appellant Yunus, he has been falsely implicated.

14. Learned counsel for the appellant, Nitin Rana, the

informant, who is PW1, would submit that prosecution has been

able to prove the case beyond reasonable doubt against the

appellants Yunus, Bijendra and Sanjay Pal. It is argued that the

presence of PW9 Udai Veer Singh Sirohi at the spot is not doubtful.

He immediately informed the Police Control Room about the

incident.

15. Learned counsel for the appellant Nitin Rana (PW1)

submits that in the evening of 04.03.2003, appellant Bijendra had

admittedly made a telephonic call to the deceased, as confirmed by

the appellant Bijendra in his statement given under Section 313 of

the Code. It is argued that it supports the prosecution case. He

would submit that PW1 Nitin Rana, PW3 Smt. Pushpa Devi and

PW10 Harendra Singh had witnessed the crime having been

committed by the appellants Yunus, Bijendra and others. PW9 Udai

Veer Singh Sirohi had reached at the spot and informed the Police

Control Room immediately. PW8 Ajay Chauhan initially conducted

the investigation. He had also reached at Pal Nursing Home from

where he took the deceased to hospital, thereafter he returned to

the police station where the report was lodged. Learned counsel

would submit that there was a motive to kill the deceased; there is

eye-witness account of it; medical evidence supports the

prosecution case. Therefore, the appeals preferred by the appellants

Yunus and Bijendra deserve to be dismissed while the appeal

preferred by the appellant Nitin Rana (PW1) deserves to be allowed and

the respondent no.2, Sanjay Pal in that appeal is liable to be convicted

of the charges framed against him.

16. Learned counsel for the respondent no.2 Sanjay Pal

submits that the prosecution has utterly failed to prove the case

against Sanjay Pal, therefore, he has rightly been acquitted and the

appeal preferred by Nitin Rana is liable to be dismissed.

17. Learned State counsel would submit that no interference

is warranted in the impugned judgment and order. He would submit

that the conviction of appellants Yunus and Bijendra and acquittal of

Sanjay Pal is in accordance with law based on the evidence that is

available. Therefore, all the appeals deserve to be dismissed.

18. Before the arguments are appreciated it would be apt to

examine as to what the witnesses have stated. According to the

prosecution, there are three eye-witnesses. They are PW1 Nitin Rana,

PW3 Smt. Pushpa Devi and PW10 Harendra Singh.

19. PW1 Nitin Rana is the informant. According to him, his

father was raising a complex in Kankhal. He was present there on

04.03.2003 at 09:00 PM. He telephoned his wife at his residence.

On that date the uncles of this witness namely PW10 Harendra Singh

and Sudhir had also come. After receiving the phone call, according to

this witness, his mother PW3 Smt. Pushpa Devi went downstairs and

after a while his uncles PW10 Harendra Singh and Sudhir also

went downstairs. When they did not return, this witness also

followed them. He found that his mother was quite tensed. He

inquired about it. She revealed that the deceased had

telephoned her and has been asking about Bijendra, as to whether

he is waiting for him in his house? According to PW1 Nitin Rana,

his mother has also told him at that time that Bijendra had

threatened the deceased on that date. At about 10:30 PM, the

deceased came in front of his house. It may be noted here that the

house was on the first floor rear side and there was a gallery for

proceeding to that house. It is explicit from the site plan, which is

Ex. A-9.

20. PW1 Nitin Rana says that as soon as his father, the

deceased arrived, the appellant Yunus and two other persons

alighted from a vehicle bearing Registration No.UA08 4700. One of

them had a rifle and two had country made pistols and they fired at

deceased Rajpal Singh and ran away. One another person also

opened fire. PW1 Nitin Rana has stated that the appellant Bijendra

Singh did open fire with rifle and appellant Yunus fired through

country made pistol. He has also stated that Sandeep alias Sanjeev

and Sanjay Pal had also opened fire. The deceased was, thereafter,

taken to Pal Nursing Home with the help of PW10 Harendra Singh

and Sudhir. On the advise of doctors, he was taken to Civil

Hospital, Roorkee, where he was declared brought dead. He gave

FIR, Ex. A-1.

21. According to PW1 Nitin Rana, the deceased had some

dispute with regard to accounts and in that matter the appellant

Bijendra was taking side of the appellant Yunus. This witness

categorically states that he knew about the appellant Yunus only at

the time of incident, although he had heard the names of Bijendra

and other persons. In answer to a question, he tells that after 2-3

days, he could identify the appellant Bijendra Singh and Sandeep

alias Sanjeev and Sanjay Pal as was told to him by his mother.

22. PW3 Pushpa Devi presents a somewhat different

version. She was the wife of the deceased. According to her, her

husband was constructing a complex in Kankhal through the

appellant Yunus. On 04.03.2003, PW10 Harendra Singh and

another brother of deceased namely Sudhir had come to meet the

deceased. At 09:00 PM, the deceased telephoned her and inquired

about the appellant Bijendra and told that he is threatening him to

life. Ten Minutes thereafter, according to this witness, appellant

Bijendra also telephoned her and inquired about the deceased. PW3

Smt. Pushpa Devi says that she was little disturbed, therefore, she

went downstairs. Her both brother-in-laws i.e. PW10 Harendra

Singh and Sudhir came downstairs and asked, as to why she has

come out of the house? Half an hour thereafter, the deceased along

with one Bhanwar Singh came and told this witness that he is

returning shortly after dropping Bhanwar Singh at his residence. In

the meanwhile, PW1 Nitin Rana also reached there.

23. PW3 Smt. Pushpa Devi states that at 10:30 PM, as

soon as the deceased returned and walked towards his house, she

saw that four persons opened fire on the deceased. According to

this witness, the appellant Bijendra had a rifle, the appellant Yunus

had a country made pistol. Sandeep alias Sanjeev and Sanjay Pal

also had country made pistol, from which, they fired. Due to this

firing, the deceased fell on the ground. This witness saw the

incident in the tube light. Thereafter, all the assailants ran away

from the place of incident in two vehicles. The appellants Bijendra,

Yunus and Sanjeev left the place of incident in Indica Car bearing

Registration No.UA08 4700, whereas Sanjay Pal left the place of

incident in Maruti Gypsy bearing Registration No. DNC 4333.

24. It may be noted that according to the FIR, there was

one vehicle and all the assailants were not named in the FIR, but

PW3 Smt. Pushpa Devi later named the assailants, assigned them

role and also tells that they left the place of incident in two vehicles.

25. PW10 Harendra Singh is brother of the deceased. He, in

his examination-in-chief has corroborated the statement of PW3

Smt Pushpa Devi and had specifically given the registration

numbers of both the vehicles i.e. Indica Car No.UA08 4700 and

Maruti Gypsy DNC 4333.

26. PW2 Onkar Singh, who according to the FIR was

present with the deceased when he received a threatening call from

the appellant Bijendra. PW2 Onkar Singh has stated so. PW4

Jitendra Singh is a witness to the inquest.

27. PW5 Dr. Ajay Agarwal was posted at Civil Hospital,

Roorkee on the date of incident. According to him, on that date at

11:20 PM, PW8 Ajay Chauhan, who was Station House Officer

("SHO"), Police Station Gangnahar, Roorkee brought the deceased

Rajpal Singh to the hospital, who was already dead. This witness

reported the incident to the Police Station Gangnahar. He proved

the communication Ex. A-2. This is an information which simply

records that the deceased was brought dead in the hospital on

04.03.2003 at 11:20 PM. The deceased was brought by Ajay

Chauhan, SHO, Police Station Gangnahar, Roorkee.

28. PW6 Dr. K.C. Pant conducted the postmortem of the

deceased on 05.03.2003. According to him, he found ante mortem

injuries on the person of the deceased:-

1) Fire Arms Injury: In the size of 1.2 cm x 1.22 cm stomach deep, in 12 o'clock position. 15 cm below from the right Nipple and 20 cm above from the navel, which was bleeding. The margins were inverted, they were burnt, black, the internal parts of the stomach were damaged; metallic parts were also detected from the body.

2) Firearm wound entry wound: 1cm x 1.2 cm. Margin inverted burnt and black. The internal organs were damaged. Two metallic pieces were detected from the body.

29. According to the doctor, the cause of death is shock

and hemorrhage and ante mortem firearm injuries. PW6 Dr. K.C.

Pant has also detected two large pieces of metal. He gave all those

pieces along with the clothes of the deceased to the police.

30. PW8 Ajay Chauhan is an important witness. He was

posted as SHO, Police Station Gangnahar, Roorkee on 04.03.2003.

According to him, after lodging of the FIR in the instant matter, he

took up the investigation, prepared inquest and other documents.

He proved inquest report Ex. A-4 and other documents related to it

i.e. Ex. A-6 to Ex. A-8. He prepared site plan Ex. A-9 and took into

custody cartridge case. He proved the Recovery Memo Ex. A-10.

According to this witness on 21.03.2003, the investigation was

transferred to the CBCID.

31. PW7 Mahendra Singh Negi is the IO, who states that he

took up the investigation of the matter on 02.04.2003 after it was

transferred from CBCID. He has recorded the statements of certain

witnesses. According to him, thereafter, he was transferred.

32. PW9 Udai Veer Singh Sirohi is a very important

witness. He was posted at a Police Picket Post, which was just

opposite to the place of incident. According to him, on the date of

incident, he was on duty. At 10:30 PM, he heard some fire shots

and noticed some commotion at a distance of 100 paces. When he

reached at the place of incident, he saw Rajpal Singh in an injured

condition and he also noticed a white Indica Car UA08 4700

moving fastly from there. He was told by the persons present at the

spot that the assailants had ran away in the fleeing car. According

to this witness, he had no vehicle, therefore, he could not chase the

Indica Car, but he informed his seniors about the incident.

33. PW11 Constable Naresh Kumar has lodged the FIR in

the instant case. He has proved the chik FIR Ex. A-11 and General

Diary Entry extract Ex. A-12.

34. PW12 Nanthey Singh Jainwar states that on

28.04.2003, he was posted as Inspector, CBCID, Dehradun, when

he received the investigation, he verified the statements of the

witnesses recorded by the earlier IO. He also verified the site plan

and submitted charge-sheet against the appellant Yunus, which is

Ex. A-13. He also proved the charge-sheet submitted against the

appellant Bijendra Singh and against Sandeep alias Sanjeev and

Sanjay Pal, which is Ex. A-14.

35. In the instant case, PW1 Nitin Rana has also stated

that 2-3 days after the incident, when his mother told him the

name of the other assailants, he could recognize them and he could

further recognize them, when he was threatened, of which, he had

given a report. PW13 Constable Pradeep Maithani has proved the

NCR No.1 of 2005 lodged by PW1 Nitin Rana against the appellant

Bijendra. He proved the chik FIR, extract of G.D. Entry and other

documents.

36. On behalf of the defence, DW1 Yashpal Singh has been

examined. He has stated that on 04.03.2003, at 09:30 PM, the

appellant Bijendra along with his family had visited the house of

Sansar Singh, where there was a marriage ceremony and he stayed

there till 10:30 PM. He also tells that on 05.03.2003, in the

morning also, Bijendra was present in marriage ceremony in the

house of Sansar Singh.

37. It is a criminal trial. The burden is on the prosecution

to prove its case beyond reasonable doubt. An innocent should not

be convicted, but equally, the principle of criminal law is that a

guilty person should not be let go. This should be the basic theme

of appreciation of evidence. In the case at hand, the prosecution is

not required to prove the case beyond absolute doubt. As stated, it

should be proved beyond reasonable doubt.

38. In the case of Shivaji Sahabrao Bobade and another vs.

Statement of Maharashtra, (1973)2 SCC 793, the Hon'ble Supreme

Court has reflected on this aspect and observed as follows:-

6. Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community.

The evil of acquitting a guilty person light heartedly as a learned Author [ Glanville Williams in 'Proof of Guilt'.] has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted "persons" and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ...." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these lines long ago.

39. What is proved is defined under the statue. In the

case of K. Ponnuswamy vs. State of T.N., (2001)6 SCC 674, the

Hon'ble Supreme Court on this aspect observed as follows:-

"27. ........................There can be no dispute with the legal proposition. However, let us see what is meant by "proved".

Section 3 of the Evidence Act defines "proved" as follows:

"3. 'Proved'.--A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

Further, Section 114 of the Evidence Act reads as follows:

"114. Court may presume existence of certain facts.--The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."

Thus the fact is said to be proved when after considering the matters before it, the court believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. In coming to its belief the court may presume existence of any fact which it thinks likely to have happened having regard to the natural course of event, human conduct and public and private business, in relation to the facts of each case."

40. Similarly, in the case of Iqbal Moosa Patel vs. State of

Gujarat, (2011)2 SCC, 198, the Hon'ble Supreme Court discussed

the concept of beyond reasonable doubt and in paras 23 and 24

observed as follows:-

"23. It is true that the prosecution is required to establish its case beyond a reasonable doubt, but that does not mean that the degree of proof must be beyond a shadow of doubt. The principle as to what degree of proof is required is stated by Lord Denning in his inimitable style in Miller v. Minister of Pensions [(1947) 2 All ER 372] : (All ER p. 373 H) "... That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence 'of course it is possible, but not in the least probable,' the case is proved beyond reasonable doubt...."

"88. It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land."

24. Reference may also be made to the decision of this Court in Sucha Singh v. State of Punjab [(2003) 7 SCC 643 : 2003 SCC (Cri) 1697] where this Court has reiterated the principle in the following words: (SCC p. 653, para 20)

"20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh [(1990) 1 SCC 445 :

1990 SCC (Cri) 151 : AIR 1990 SC 209] ). The prosecution is not required to meet any and every hypothesis put forward by the accused. ... A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish.""

41. What is 'proved', 'disproved', 'not proved' and where is

the place of 'suspicion' and 'great suspicion' in these concepts. The

incident 'could have' happened or 'has happened'. What is the

distance between, "may be" and "must be". These concept have

been elaborated by the Hon'ble Supreme Court in the case of Sujit

Biswas vs. State of Assam, (2013)12 SCC 406. In para 13 of it, the

Hon'ble Supreme Court observed as follows:-

"13. 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. In such cases, while keeping in mind the distance between "may be" true and "must be"

true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide Hanumant Govind Nargundkar v. State of M.P. [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1953 Cri LJ 129] , State v. Mahender Singh Dahiya [(2011) 3 SCC 109 : (2011) 1 SCC (Cri) 821 : AIR 2011 SC 1017] and Ramesh Harijan v. State of U.P. [(2012) 5 SCC 777 : (2012) 2 SCC (Cri) 905] )"

42. The Court takes help of experts while comparing

signatures, writing, etc. on the documents. At times the court may

compare the words or figures on its own. Section 73 of the Indian

Evidence Act, 1972 permits the court to do so. In the instant case,

it has some significance. The court will read FIR on its textual

aspect also. The court may make an opinion, as to how and under

what circumstances, a document is written. It may not be termed

as conjecture and surmises. The provisions of Sections, 45, 47 and

73 of the Indian Evidence Act, 1872 has been discussed by the

Hon'ble Supreme Court in the case of Lalit Popli vs. Canara Bank

and others, (2003)3 SCC 583, which reads as follows:-

"13. It is to be noted that under Sections 45 and 47 of the Evidence Act, the court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the court by its own comparison of writings can form its opinion. Evidence of the identity of handwriting is dealt with in three sections of the Evidence Act. They are Sections 45, 47 and 73. Both under Sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the handwriting expert, the court can compare the admitted writing with the disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of the handwriting expert need not be invariably corroborated. It is for the court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when an expert's evidence is not there, the court has power to compare the writings and decide the matter. (See Murari Lal v. State of M.P. [(1980) 1 SCC 704 : 1980 SCC (Cri) 330] )"

43. In fact, learned Senior Counsel appearing for the

appellant Bijendra has also argued that the report which was

received at the Police Control Room could have been lodged as an

FIR. The FIR basically is the information of commission of a

cognizable offence given to a police officer. In the instant case, the

report was not given to any police station instead at the Police

Control Room the information has been received, which was also

cryptic; it was not revealing much. Therefore, it cannot be said that

the information which was received at the Police Control Room at

10:33 PM could have been lodged as an FIR by any police station.

44. The deceased was brought dead at Civil Hospital,

Roorkee at 11:20 PM. The FIR was lodged at 11:50 PM., which

means that 01:30 hours after the deceased was declared dead by

PW5 Dr. Ajay Agarwal at Civil Hospital, Roorkee, the FIR was

lodged. The dead body was in the mortuary. PW1 Nitin Rana has

not stated that he met either PW2 Onkar Singh, Arun Bhatnagar or

Bhanwar Singh, who, according to the FIR, were allegedly sitting

with the deceased when he received a threatening telephone call

from the appellant Bijendra.

45. The Court is not making any endeavour beyond what is

assigned to it. The Court is reading the FIR. PW2 Onkar Singh is

one of those persons, who was allegedly sitting with the deceased in

the late evening of 04.03.2003, when he allegedly received a

threatening call. PW2 Onkar Singh has though stated about this

call. But, how could he hear it. If a person is talking to some other

person over telephone, how could some third person hear it?

Particularly, how could he hear, as to what the person from the

other side has communicated?

46. PW2 Onkar Singh has not stated that he immediately

told it to PW1 Nitin Rana that on the date of incident, in the late

evening, the deceased received a telephonic call. On the other hand,

in para 3 of his statement PW2 Onkar Singh tells that on the date

of incident, he came to know about it. But, on that date he did not

reveal it to the police or any other person, instead he gave some

written text to the police sometime thereafter. The question is, how

in the FIR it is recorded that on 04.03.2003 in the evening the

deceased was sitting with PW2 Onkar Singh, Arun Bhatnagar and

Bhanwar Singh when he received a threatening call from the

appellant Bijendra. There is no statement to that effect.

47. The FIR records that when the deceased was taken at

Pal Nursing Home police had arrived there, which means, police

had not arrived prior thereto. PW9 Udai Veer Singh Sirohi was at

picket post across the road on the date of incident. He tells that

soon after the incident, PW8 SHO Ajay Chauhan has also reached

at the place of incident, although as stated, PW8 Ajay Chauhan has

stated that he had reached at the Pal Nursing Home. There are

great contradictions on the material points. These contradictions

are great under the facts and circumstances of the case. It would be

elaborated further.

48. PW1 Nitin Rana was a student in Dehradun. PW3 Smt.

Pushpa Devi admits that she had divorced the deceased long back,

but she tells that she had subsequently, settled the dispute with

the deceased and they were staying together.

49. PW10 Harendra Singh was a chance witness. According

to him, he had come to meet his brother on the date of incident.

These are definitely chance witnesses. There is no rule of law that

the statement of chance witnesses may not be trustworthy, but the

rule of prudence requires that the statement of such chance

witnesses should be scrutinized carefully.

50. How the incident happened? There are three versions

namely:- (i) One in the FIR. (ii) What the PW1 Nitin Rana has

stated and; (iii) What PW3 Smt. Pushpa Devi and PW10 Harendra

Singh have stated.

51. This Court is cautious of the fact that the FIR may not

be encyclopedia so as to incorporate each detail of the incident.

But, at the same time, meticulously written detailed FIR also raises

suspicion. Moreover, in such circumstances, when a son has lost

his father and dead body was in a mortuary.

52. According to the FIR, PW1 Nitin Rana along with PW10

Harendra Singh and others were standing in front of their house,

downstairs, where at 10:30 PM the deceased arrived and he was

killed. But, in the evidence, the reason of the presence of witnesses

on the road at the time of incident has not been given. According to

the prosecution witnesses, PW3 Pushpa Devi did receive a

telephone call of the deceased, inquiring about the appellant

Bijendra. Thereafter, Bijendra also called PW3 Smt. Pushpa Devi

inquiring about the deceased Rajpal Singh. PW1 Nitin Rana, PW3

Smt. Pushpa Devi and PW10 Harendra Singh states that after

hearing the telephone call PW3 Smt. Pushpa Devi became a little

disturbed and tensed. Therefore, she came downstairs and waited

for her husband on the road. She was followed by the PW10

Harendra Singh and Sudhir and subsequent thereto, PW1 Nitin

Rana also joined them. There is a history of the presence of these

three witnesses on the road at the time of incident. It is missing in

the FIR.

53. What is most significant is that the presence of PW3

Smt. Pushpa Devi is not recorded in the FIR. It doubts the

trustworthiness and credibility of the FIR and the statements of the

witnesses. It is important because the whole cause for presence of

PW1 Nitin Rana, PW3 Smt. Pushpa Devi and PW 10 Harendra

Singh at the place of incident, according to these witnesses was the

telephonic call, which was allegedly received by PW3 Smt. Pushpa

Devi.

54. The eye-witnesses have stated that the deceased

arrived in front of his house and went to drop one Bhanwar Singh.

Now, the question is, who is this Bhanwar Singh? Why he has not

been examined? It further doubts the prosecution case for the

simple reason that if the deceased was afraid and was inquiring

about the appellant Bijendra, who had allegedly given him life

threat, why did he go to drop Bhanwar Singh, when his entire

family was on the road in front of his house? Why he did not ask

some other person to drop Bhanwar Singh?

55. Moreover, PW3 Smt. Pushpa Devi has stated in para 32

of her statement that from Kankhal, from where the deceased was

driving his car, first the residence of Bhanwar Singh falls and,

thereafter, the residence of the deceased. If it is so, what was the

occasion for deceased to take Bhanwar Singh to his house and then

go back and drop him at his residence?

56. According to the FIR, as soon as the deceased

alighted from the car in front of his house, the appellant Yunus

alighted from the another Indica car along with two unknown persons

and fired at him, due to which, he died. Was there one car? PW3 Smt.

Pushpa Devi and PW10 Harendra Singh tell that there were four

persons, who opened fire at the deceased and they ran away from the

place of incident in two cars. One Indica Car bearing Registration

No.UA08 4700 and another Gypsy DNC 4333. This contradiction in

the statement of the witnesses and the contradiction on the one side

in the FIR and on the other side in the statement of PW3 Smt.

Pushpa Devi and PW10 Harendra Singh is grossly material. It

doubts the entire prosecution case.

57. In the court, witnesses have stated, as to who was

holding what? According to PW1 Nitin Rana, PW3 Smt. Pushpa

Devi and PW10 Harendra Singh, appellant Bijendra had a rifle,

whereas the appellant Yunus had a country made pistol and

Sandeep alias Sanjeev and Sanjay Pal were also holding the country

made pistols, by which they opened fired. As such, it is not stated

in the FIR. But, before that what is important to see is that the

appellant Bijendra has not been assigned any role of firing in the

FIR. What is also important to notice in the FIR is that Sandeep

alias Sanjeev and Sanjay Pal have not been named, as such.

58. PW3 Smt. Pushpa Devi and PW10 Harendra Singh

claim that they knew all the assailants. If PW3 Smt. Pushpa Devi

and PW10 Harendra Singh were present with PW1 Nitin Rana at

the place of incident, why all the assailants were not named in the

FIR along with their specific role? It also doubts the credibility of

the FIR as well as credibility of the entire case. In fact PW3 Smt.

Pushpa Devi and PW10 Harendra Singh claim that they had given

written statement also to the police which was recorded by one K.P.

Singh. What was the occasion for that?

59. If PW3 Smt. Pushpa Devi and PW10 Harendra Singh

were present at the place of incident, why they did not reveal the

names of the assailants to PW9 Udai Veer Singh Sirohi when he

reached at the spot?

60. PW1 Nitin Rana admits that in FIR, he has stated that

three persons opened fire. In page 18 at the bottom of his statement

PW1 Nitin Rana tells that since he was much disturbed and

panicked, therefore, he could not write four persons. This

explanation is not genuine. Panic and disturbance do not make

somebody to leave, a person who had opened fire; this explanation

given by PW1 Nitin Rana is also belied by the statement of PW8

Ajay Chauhan, when in the page 7 of his statement in the bottom,

he tells that PW1 Nitin Rana had told him that three persons fired

and he had not told him that fourth person also opened fire.

61. In so far as the presence of PW3 Smt. Pushpa Devi is

concerned, as stated, it is not recorded in the FIR. PW1 Nitin Rana

at page 13 of his statement bottom paragraph claims that he had

told it to the IO that his mother also had seen the incident, but

PW8 Ajay Chauhan, the IO claims that PW1 Nitin Rana did not tell

him that his mother was also present and had witnessed the

incident. It further doubts the presence of witnesses at the spot.

62. PW1 Nitin Rana states that after his father was shot,

blood spilled, which fell on the road (statement of PW1 is at page

08) and on his clothes also. According to him, after injuries he

grabbed his father and took him in a car along with PW10

Harendra Singh. In his statement at page 09 opening paragraph,

PW1 Nitin Rana tells that he had shown to police the place of

incident on 05.03.2003 where the blood had spilled on the ground

and the police had also taken the blood stained soil. He also tells in

the same line that when he took the deceased in his car, blood also

spilled on the seat of the car.

63. Had there been blood on the clothes of PW1 Nitin Rana,

PW10 Harendra Singh and the blood recovered from the car, in

which, the deceased was allegedly taken to the hospital and the

blood matches with the deceased, perhaps it would have given

support to the story of the prosecution that PW1 Nitin Rana and

PW10 Harendra Singh were present on the spot. But, it is not so.

64. PW8 Ajay Chauhan, who was the IO tells that PW1

Nitin Rana has not shown him the car, which had blood stained. He

had also not shown him the place where the blood was spilled (PW8

Ajay Chauhan's statement is at page 06, last paragraph). On this

aspect there are contradictions in the statements of PW1 Nitin

Rana and PW8 Ajay Chauhan. Blood stained soil was not taken by

the IO. Even blood was not detected from the car, in which,

allegedly the deceased was taken to hospital. This evidence, which

could have otherwise linked the presence of PW1 Nitin Rana and

PW10 Harendra Singh at the spot, is also grossly missing. This is

not only missing, but as stated, there are contradictions on this

point between the statements of PW1 Nitin Rana and PW8 Ajay

Chauhan. These contradictions are also material.

65. There is another great contradiction in the prosecution

story which belies the prosecution case. Site Plan Ex. A-9 has been

proved by PW8 Ajay Chauhan. According to it, the situation is as

follows:-

(i) The incident took place on the Ramnagar Road.

(ii) The deceased was killed on the left side of the road while moving from the Ramngar Chowk to Ramnagar.

(iii) The assailants were standing at a place shown by letter 'A' on the site plan along with their arms.

(iv) Two cars of the assailants have been shown parked. One on the side where the deceased was killed and another on the opposite side of the place of incident.

(v) There is a Pan Khokha shown opposite to the place of incident.

66. Study of the site plan makes a great revelation. It

shows two cars had already been parked on the both sides of the

road. According to the site plan, all the assailants were standing

towards South, where the deceased was killed. It is in the same

side where the house of the deceased was located.

67. According to the FIR, when the deceased arrived at the

place of incident an Indica car followed him, from which, the

assailants including the appellant Yunus disembarked and they

opened fire at the deceased, but the site plan does not substantiate

it. Site plan makes another story. According to the site plan,

vehicles of the assailants had already been parked on the both

sides of the road and the assailants were standing towards the

house of the deceased with their arms and ammunitions. PW10

Harendra Singh in page 08 of his statement admits that in his

written statement given to the IO, he had written that some persons

were hiding, while holding rifles. But though, he also states that he

does not know, as to how he has recorded such statement.

68. It is not the case in the FIR. The prosecution witnesses

PW1 Nitin Rana, PW3 Pushpa Devi and PW10 Harendra Singh have

not stated that the assailants were hiding towards the house of the

deceased from where they opened fire. It has been consistent case

in the FIR that when the deceased alighted from his car and moved

towards his house, an Indica car which was following him reached

there, from which, the appellant Yunus alighted along with two

other persons and they opened fire.

69. PW3 Pushpa Devi and PW10 Harendra Singh in their

statement given in the court had stated that assailants had come in

two vehicles and had opened fire. It has not been stated in the

court that the assailants were hiding, whereas the story in the site

plan and the statement of PW10 Harendra Singh given to the IO

makes another story of hiding of the assailants towards the house

of the deceased while parking their cars on the both sides of the

road.

70. If the assailants were hiding towards the house of the

deceased, how they could not be noticed by the witnesses? i.e. by

PW1 Nitin Rana, PW3 Pushpa Devi and PW10 Harendra Singh, who

claimed that they were waiting for the deceased to come. PW3

Pushpa Devi and PW10 Harendra Singh claims to know all the

assailants. Where were they hiding? It was a vacant shop where

they were allegedly hiding themselves and in the same place, the

witnesses claim that they were waiting for the deceased to come.

This further doubts the prosecution case.

71. According to PW9 Udai Veer Singh Sirohi, who was on

the picket post across the road, PW8 Ajay Chauhan had also

reached at the spot, although PW8 Ajay Chauhan has denied to it.

According to him, he had reached Pal Nursing Home.

72. PW9 Udai Veer Singh Sirohi has stated that when he

noticed firing, he reached at the spot, but he could not follow the

fleeing car of the assailants and did not open fire. He has given

reasons for that. According to him, he had no vehicle (Statement of

PW9 Udai Veer Singh Sirohi, page 01) and there were many people

at the crossing, therefore, he could not open fire, it could have hurt

them (Statement of PW9 Udai Veer Singh Sirohi, page 03).

73. There was car of the deceased on the road and if the

family members were there, what had prevented PW9 Udai Veer

Singh Sirohi to follow the assailants in the car of the deceased?

According to the site plan Ex. A-9 and the statements of the

witnesses, the incident did not take place at the Ramnagar Chowk

instead it took place towards East of the Ramnagar Chowk; the FIR

records that the assailants ran towards Block. It was not crossing.

Why the moving vehicles could not have been interrupted by some

other means? But, that is not significant.

74. What is significant is that the first report of the incident

that was given to Police Control Room did not name either the

assailants or the injured. PW9 Udai Veer Singh Sirohi is the first

police person, who reached at the spot. But, he has contradictory

statement. On page 04, second paragraph PW9 Udai Veer Singh

Sirohi states that he had identified Rajpal Singh as soon as he

arrived there because he knew him, but the name of injured was

not revealed initially. But, in page 05 bottom line of his statement

PW9 Udai Veer Singh Sirohi tells that till he informed the senior

officers, he was not aware of the name of the injured and after 5-7

minutes, he could know that the injured was Rajpal Singh. Why is

this contradiction? If the family members of the deceased were at

the spot they could have easily identified the deceased as well as

the assailants and accordingly, the information could have been

sent by PW9 Udai Veer Singh Sirohi to his superiors, but it was not

done. As stated, the presence of witnesses namely PW1 Nitin Rana,

PW3 Smt. Pushpa Devi and PW10 Harendra Singh is much

doubtful.

75. Who took the deceased to hospital? According to PW1

Nitin Rana, he along with PW10 Harendra Singh and others took

the deceased to hospital in the car of the deceased. They took him

first to Pal Nursing Home and, thereafter, to the Civil Hospital,

Roorkee where he was declared brought dead. But, PW5 Dr. Ajay

Agarwal has categorically stated that the deceased was brought in

the hospital by SHO Ajay Chauhan. If the family members had

taken the deceased to hospital, why Ex. A-2 records that PW8 Ajay

Chauhan took him to hospital?

76. On this point, learned counsel for the State would

submit that since police has escorted the deceased, therefore, his

name was recorded. But, this argument is not acceptable because

according to PW9 Udai Veer Singh Sirohi, PW8 Ajay Chauhan had

also reached at the spot. But, PW8 Ajay Chauhan claims that he

went Pal Nursing Home. In page 04 of his statement, PW8 Ajay

Chauhan has admitted that in the Case Diary, he records that after

lodging the report he reached Pal Nursing Home and thereafter, he

took the deceased to Civil Hospital, Roorkee where he was declared

brought dead.

77. How could PW8 Ajay Chauhan write like this because

according to the FIR, it was lodged when the deceased had already

died and he was brought dead at Civil Hospital, Roorkee and his

dead body was lying in mortuary. If the deceased was already dead

in the Civil Hospital, Roorkee and after that the FIR was lodged,

there was no occasion for PW8 Ajay Chauhan to reach Pal Nursing

Home. As stated, PW9 Udai Veer Singh Sirohi has stated that, in

fact, PW8 Ajay Chauhan had reached at the spot. The FIR records

that the police reached at Pal Nursing Home. Why is this

discrepancy? It has not been cleared by the prosecution.

78. In fact, what is being argued is that the FIR was lodged

ante time. In the FIR, the parentage of appellant Yunus and

appellant Bijendra is not written. But, PW8 Ajay Chauhan, IO

admits in his statement at page no.03 that before recording the

statement of any witness, he has recorded the parentage of

appellant Yunus in the Case Diary. How it was done? Did the IO

know him?

79. In view of these discrepancies, the statement of PW5

Dr. Ajay Agarwal that deceased was brought in the hospital by PW8

Ajay Chauhan, amply proves that there was no family member

present in the hospital when the deceased was taken to hospital

because, as stated, had there been any family member, they could

not have waited PW8 Ajay Chauhan to arrive at the place of

incident (as stated by PW9 Udai Veer Singh Sirohi). There could

have been no occasion for PW8 Ajay Chauhan to take the deceased

to hospital. Under such circumstances, definitely the family

members would have immediately taken the deceased/injured to

hospital.

80. According to the prosecution, the appellant Bijendra

opened fire from his rifle. FSL Report Agra confirms that the

cartridge case, which was allegedly recovered from the place of

incident, was fired through the rifle. But the FSL Report

Chandigarh does not support the prosecution case.

81. Where was the cartridge case taken after its alleged

recovery? Who took it for forensic examination? When was it taken?

In whose custody, it was kept? There is no evidence forthcoming.

82. The statement of PW12 Nanthey Singh Jainwar, who

submitted charge-sheet is important. In page no.4, para 7 of his

statement, he says that he had received a receipt dated 04.03.2003

to reveal that the licensed rifle of the appellant Bijendra was

deposited with the International Traders Muzaffarnagar on that

date. This receipt, according to that witness was received on

04.06.2003. Has it been examined? Has the IO interrogated

International Traders to verify, as to whether the licensed rifle of

the appellant was deposited with him on 04.03.2003? And; if it was

so deposited, where was the occasion for firing from the same rifle

in the late evening of 04.03.2003? These all, have not been

established by the prosecution. As stated, there are two

contradictory Forensic Science Laboratories Reports. Therefore, the

FSL Report also does not support the prosecution case.

83. Having considered the facts and circumstances of the

case on the basis of the above discussion, this Court is of the view

that the prosecution has not been able to prove its case beyond

reasonable doubt against Yunus, Bijendra and Sanjay Pal.

Therefore, the appeals preferred by the appellants Yunus and

Bijendra deserve to be allowed, whereas the appeal preferred by the

appellant Nitin Rana deserves to be dismissed.

84. The Criminal Appeal No. 367 of 2012 and Criminal

Appeal No. 371 of 2012 are allowed.

85. The appellants Yunus and Bijendra are acquitted of the

charges under Section 302 read with Section 34 IPC and the

appellant Bijendra is further acquitted of the charge under Section

506(2) IPC. They are on bail. They need not surrender. Their bonds

cancelled and sureties are discharged of their liability.

86. Criminal Appeal No. 147 of 2013 is hereby dismissed.

87. The impugned order is modified to the extent, as

indicated above.

88. Let a copy of this judgment alongwith record be

forwarded to the court below for compliance.

(Alok Kumar Verma, J.) (Ravindra Maithani, J.) 14.02.2025 Sanjay