Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.511 OF 2011
RAVI MANDAL … Appellant
VERSUS
STATE OF UTTARAKHAND … Respondent
WITH
CRIMINAL APPEAL NO.2345 OF 2011
SHABBIR … Appellant
VERSUS
STATE OF UTTARAKHAND … Respondent
J U D G M E N T
MANOJ MISRA, J.
1. These two appeals are against the judgment
and order of the High Court of Uttarakhand at Nainital
(for short “the High Court”), dated 07.04.2010,
Signature Not Verified
dismissing Criminal Appeals Nos.54 and 59 of 2004
Digitally signed by
Jayant Kumar Arora
Date: 2023.05.18
17:33:31 IST
Reason:
filed against the judgment and order of Additional
Criminal Appeal No.511 of 2011 Etc. Page 1 of 36
Sessions Judge/Fast Track Court Haldwani, Nainital
(for short “the Trial Court”) dated 28.01.2004, and,
thereby, affirming the conviction and sentence
awarded to the appellants detailed below: (i) life
imprisonment under section 302 read with section 34
of the Indian Penal Code, 1860 (for short “IPC”) along
with one year R.I. under section 201 IPC in Sessions
Trial (S.T.) No.93/2002 (State vs. Shabbir Ahmad and
Another); (ii) one year R.I. with fine of Rs.500/- under
section 25 Arms Act to appellant Shabbir in S.T.
No.104 of 2002 (State vs. Shabbir Ahmed); and (iii) one
year R.I. with fine of Rs.500/- under section 4/25 of
Arms Act to appellant Ravi Mandal in connected S.T.
No.105 of 2002 (State vs. Ravi Mandal).
Introductory Facts:
2. On 01.11.2001, Man Singh (PW-1), father of
Chhotu @ Surjeet (the deceased), on finding his son’s
dead body in a forest, 150 meters west of Government
Inter College, lodged a first information report (FIR) at
P.S. Lalkuan, Haldwani, district Nainital at about 7.30
hrs, alleging therein that, — on 31.10.2001, at about
2100 Hours, the deceased was with his friends Govind
and Ravi Bangali (later identified as Ravi Mandal);
Govind, a criminal, had been influencing his son to
choose a wrong path; therefore, he suspects that these
persons have killed his son and concealed his body in
Criminal Appeal No.511 of 2011 Etc. Page 2 of 36
the forest. Thereafter, on 10.11.2001, PW-1 gave a
written information to the police stating that it was not
Govind but Shabbir who along with Ravi and one
Mazhar Khan were with the deceased on that fateful
night. In this written information, it was alleged that
Babloo (PW-7) had misled him to take the name of
Govind.
3. During the course of investigation, the police
effected arrest of the two accused, namely, the
appellants herein, and disclosed recovery of a 12 bore
country made pistol with one live cartridge from
Shabbir and a knife from Ravi Mandal, giving rise to
two separate cases against each of the two accused
under the Arms Act.
4. On completion of investigation three charge
sheets were laid giving rise to three sessions trials
which were connected with each other and decided by
a common judgment, which has been affirmed by the
High Court.
Prosecution Evidence:
5. To appreciate the arguments advanced in this
case, it would be apposite to notice the testimony of
the prosecution witnesses in brief. The prosecution
examined 10 witnesses, the gist of their testimony is
as under:
Criminal Appeal No.511 of 2011 Etc. Page 3 of 36
(i) PW-1 – Man Singh - Informant (father of the
deceased)
He is not an eyewitness of the murder. He,
however, proved lodging of the FIR on 01.11.2001
and stated that, — on 31.10.2001 in the evening
Babloo (PW-7) came to his residence, told him that
the deceased, Ravi Bangali and Govind were
asking for food and have sent him to fetch food for
them; on that request, PW-1’s wife (Urmila Devi-
PW-3) cooked food, packed it and gave it to
Babloo, who left with the food; next day, he came
to know that dead body of his son was lying in the
forest; he then visited the place, brought the dead
body to Lalkuan Police Station and lodged the
report; later, when he came to know that Govind
was not with his son, rather it was Shabbir along
with others who were there, he gave the second
report (Ex. Ka-2) to the police on 10.11.2001.
During cross examination, PW-1 admitted that
there were three or four criminal cases against his
son (the deceased) wherein, he was on bail.
With regard to the sequence of events on the
date of lodging the FIR, PW-1 stated that,— a
constable with two men came in the morning to
inform him that dead body of his son is lying in
the forest; on getting the information he went to
Criminal Appeal No.511 of 2011 Etc. Page 4 of 36
that place and brought the body to the police
station to lodge the FIR whereafter, the body was
sealed and sent to Haldwani Hospital for autopsy.
He also stated that papers relating to recovery of
tiffin box; collection of blood-stained earth etc.
were prepared at the police station and he signed
those papers at the police station itself. PW-1 also
clarified that the second report (i.e. Ex. Ka-2) was
dictated by the Sub-Inspector at the police station
and he wrote whatever was told to him.
At the fag end of his cross-examination, PW-1
stated that he had informed the Sub-Inspector
regarding financial transactions with Govind and
also about Govind not refunding the money, which
gave rise to enmity.
(ii) PW-2 - Chandan Singh
He deposed that, — (a) he knew Shabbir
Ahmad and Ravi Mandal; (b) they had come to his
shop with the deceased at about 1900 Hours
on 31.10.2001 and from there they proceeded
towards the cinema hall; (c) later, in the night of
31.10.2001/ 01.11.2001, at about 0030 Hours,
he saw the accused-appellants emerging from the
forest and walking fast; (d) at that time, hands of
Shabbir were blood-stained and Ravi’s clothes
were also having blood stains, (e) seeing PW-2,
Criminal Appeal No.511 of 2011 Etc. Page 5 of 36
they got nervous, Shabbir threatened PW-2 by
saying that if PW-2 discloses what he has seen to
any one, he would meet the same fate as Chhotu
(the deceased); (f) next day morning, PW-2 learnt
that dead body of Chhotu has been found in that
forest.
To show the reason for his presence there, at
that odd hour of the night, PW-2 stated that,— his
parents have a separate house at Khatta, where
he goes at least once a week; that night, after
having dinner, while returning from his parents’
house and proceeding towards his own
house/shop, at about 0030 Hours, he witnessed
the incident.
During cross examination, PW-2 stated that, —
his shop is run from a room in his house; it
remains open from 0500 Hours till 2300 Hours;
his house comprises of 3 rooms where he resides
with his wife and five sons; the usual time of his
dinner is 2100 Hours.
A suggestion was put to PW-2 that mother of
Ravi (one of the appellants) is PW-2’s neighbour
on whose land PW-2 had constructed his shop.
This suggestion was denied by PW-2.
Criminal Appeal No.511 of 2011 Etc. Page 6 of 36
With regard to the delay in giving information
to the police, PW-2 stated that he was petrified by
the incident and when the accused were arrested,
he could muster courage to make his statement.
During cross-examination, PW-2 admitted that
he had been arrested under section 60 of the
Excise Act and is on bail. He feigned ignorance to
a suggestion that his bail bonds were arranged by
parents of Chhotu.
(iii) PW-3 – Urmila Devi-Mother of the deceased
She proved that on 31.10.2001, Babloo (PW-7),
who use to work at the cinema hall, came to her
house to fetch food for the deceased,
consequently, food was cooked and supplied by
her.
During cross examination, she denied being a
surety for the bail of Chandan (PW-2). However,
she admitted that Chandan used to visit her
house.
(iv) PW-4 – Smt. Mithilesh (Wife of Govind)
PW-4 did not depose anything specific about
the incident except that Shabbir had enmity with
her husband and 8 to 10 days before the murder
of Chhotu, Ravi Bangali and Shabbir had called
her husband; in consequence, her husband left,
but did not return thereafter; later, she received
Criminal Appeal No.511 of 2011 Etc. Page 7 of 36
information from the police that her husband has
been killed and the culprits caught.
During cross examination, she admitted that
the police had come to her house 2-3 days after
the murder of Chhotu but, at that time, she had
not informed the police that Govind and Chhotu
had gone with the accused persons. She also
admitted that the police made no enquiry from her
and she did not lodge any complaint in respect of
her husband’s murder.
(v) PW-5 – Mahendra Khurana
He stated that,— on 31.10.2001, while he was
watching a night show at the cinema hall, he had
to rush out to attend to nature’s call, then he saw
Chhotu (the deceased), Ravi Bangali and Shabbir
going towards the forest; 2-3 minutes later, he
heard sound of a gunshot and 5-7 minutes later,
Ravi Bangali and Shabbir minus Chhotu were
noticed running and talking to each other that
they have settled their account with Chhotu as he
had become a nuisance for them on account of his
persistent demand for money. PW-5 stated that he
did not disclose this fact to anyone in the night
but in the morning, he came to know that Chhotu
has been murdered.
Criminal Appeal No.511 of 2011 Etc. Page 8 of 36
During cross examination, he admitted that
though toilet facility is available in the cinema hall
but, on charge; therefore, he went out to ease
himself. He stated that his statement was
recorded in the morning, following the night of the
incident; and for that purpose, he was called by
the constable. On being confronted with his
previous statement that he saw Govind, Chhotu,
Ravi Bangali and Shabbir going towards the
forest, PW-5 stated that he had disclosed the
name of all, except Govind. He, however, admitted
that he did not disclose to the police the place
where he sat that night to ease himself.
(vi) PW-6 – Hanuman Prasad
He stated that,— on 31.10.2001 at about mid-
night while he was returning from depot no.6,
opposite to the cinema hall, he saw three persons,
namely, Chhotu, Ravi Bangali and Shabbir talking
to each other and going towards the forest; next
day in the morning, he came to know that Chhotu
has been murdered. He denied having seen
Shabbir firing at the deceased. At this stage, the
prosecution declared him hostile and sought his
cross examination.
Criminal Appeal No.511 of 2011 Etc. Page 9 of 36
During cross examination by the prosecution,
he denied that he gave a statement before the
police about Shabbir shooting his companion and
Ravi holding his leg.
During cross examination by the defence, he
stated that he had not seen the incident and he
had also informed the police that he had not seen
the incident.
(vii) PW-7 – Babloo
He stated that,— on 31.10.2001, he met
Chhotu at the gate of cinema hall; Chhotu asked
him to get food for him from his residence; at that
time, no one was present with Chhotu. PW-7
stated that he came to the residence of Chhotu,
took food and brought it in three boxes but when
he reached there with the food, he saw no one,
therefore, he kept the food there. Next day
morning, he came to know that Chhotu has been
killed. At this stage, the prosecution declared him
hostile and sought permission for his cross
examination.
During cross examination by the prosecution,
PW-7 admitted his signature on paper No.3/15
which was marked Ex. Ka-6. He also admitted
that he gave a statement to the sub-inspector but
Criminal Appeal No.511 of 2011 Etc. Page 10 of 36
denied that he saw Chhotu in the company of
Shabbir and Ravi Bangali on 31.10.2001.
During cross examination at the instance of
defence, PW-7 stated that he used to sell chana
(gram) at the cinema hall; the cinema hall had
toilets and no money is charged for use of those
toilets. He also stated that during the course of
investigation of this case, the police had beaten
him and had detained him in the police lock-up
for three days.
(viii) PW-8 – Dr. Anil Chandra K Sah (Autopsy surgeon)
He proved the autopsy report and stated that
death of the deceased was due to shock and
haemorrhage as a result of ante mortem gunshot.
(ix) PW-9 – Sub-Inspector Nanhe Lal (Investigating
Officer of the cases under the Arms Act)
He proved the inquest report (Ex. Ka-7A) and
autopsy related papers (Ex.K-8 to K-10). He also
proved various stages of investigation of case
crime No.756/01, under section 25 of Arms Act,
and case crime No.757/01, under section 4/25 of
Arms Act, as also submission of charge sheet and
obtaining of sanction for prosecution under the
provisions of the Arms Act.
Criminal Appeal No.511 of 2011 Etc. Page 11 of 36
During cross examination, PW-9 stated that on
06.12.2001 he prepared site plan of the place from
where the accused were arrested and weapon was
recovered. He sought to explain the delay in
preparation of the site plan by stating that he was
busy with other matters.
(x) PW-10 – SI Pramod Kumar Shah (Investigating
Officer of the murder case)
He proved — registration of the FIR; visiting the
spot with PW-9; inspection of the spot;
preparation of site plan (Ex.Ka-15); lifting of: blood
stained soil/plain soil, vide seizure memo Ex. Ka-
4, and one empty 12 bore cartridge from the spot,
vide seizure memo Ex.Ka-5 of which PW-1 is one
of the witnesses; conducting inquest; recording
statement of — complainant Man Singh (PW-1),
Babloo (PW-7) and Mahender Khurana (PW-5);
preparation of custody memo of the tiffin;
recording statement of — Smt. Urmila Devi (PW-
3) on 02.11.2001, Mithilesh (PW-4) on
03.11.2001, Hanuman (PW-6) on 07.11.2001;
submission of application by Man Singh on
10.11.2001; and submission of charge sheet
(EX.Ka-16). He also produced material exhibits
etc. In addition to the above, he stated that
accused Shabbir and Ravi Mandal were
Criminal Appeal No.511 of 2011 Etc. Page 12 of 36
absconding, therefore, application to draw
proceedings under section 82 of the Code of
Criminal Procedure, 1973 (for short “Cr.P.C.”) was
moved. Thereafter, on 24.11.2001 at 1530 Hours
accused Shabbir and Ravi Mandal were arrested
with a 12 bore country made pistol and knife
respectively. He proved the arrest memo as Ex.
Ka-17.
PW-10 stated that on 15.01.2002 the country
made pistol, empty cartridge recovered from the
spot and live cartridge seized at the time of arrest
were sent to Forensic Science Laboratory (FSL),
Agra for examination and its report has been
submitted, as per which, EC-1 (empty cartridge
found near the dead body) was fired from the
pistol which was recovered from Shabbir.
During cross examination, at the instance of
accused Shabbir, PW-10 stated that, — in the FIR
Shabbir was not named; PW-10 reached the place
of occurrence at about 0800 Hours; the dead body
was lying at the spot; the statement of Man Singh
was recorded at the spot on 01.11.2001; Man
Singh had informed him that Chhotu (the
deceased) had not been coming home since last
10-12 days before the incident, however, no
information regarding Chhotu was given earlier;
Criminal Appeal No.511 of 2011 Etc. Page 13 of 36
Mahender Khurana (PW-5) had told that in the
night he had seen Govind with Ravi, Chhotu and
Shabbir going towards the forest; Man Singh on
01.11.2001 had stated that Govind had borrowed
Rs.16,000/- from Chhotu; Man Singh’s (PW-1’s)
statement was recorded thrice; Chandan Singh
(PW-2) gave an affidavit on 18.02.2002, prior to
that he did not come; Urmila Devi, whose
statement was recorded on 02.11.2001 at her
residence, did not disclose that PW-2 had seen the
accused persons; and Mithilesh’s (PW-4’s)
statement was recorded twice, one on 03.11.2001
and the other on 05.12.2001. PW-10 also stated
that on their arrest Shabbir and Ravi had
confessed that before killing Chhotu, they had
killed Govind.
PW-10 further stated that statement of
Mahender Khurana (PW-5) was recorded on
01.11.2001 at his residence; and PW-5 had not
disclosed the place where he sat to ease himself
that fateful night.
With regard to the sequence of events on the
day of arrest of the two accused, PW-10 stated
that, — on 24.11.2001, he had received
information from an informer that at 1600 Hours
accused persons were to come to their house; the
Criminal Appeal No.511 of 2011 Etc. Page 14 of 36
said information was received at about 1430
Hours; on receipt of the information, PW-10 and
his team arrived at the spot in their Jeep, which
was hidden in the forest at some distance; after
10-15 minutes, PW-10 saw the accused persons
coming and were accordingly arrested. PW-10
accepted that he did not try to rope in any public
witness because the spot where arrest was
effected was 200 meters away from the locality.
PW-10 also stated that the site plan of the place of
arrest and recovery was prepared on 06.12.2001
at his instance. PW-10 denied the suggestions
that,— the dead body was brought by the
complainant to the police station; the second
complaint (Ex.Ka-2) was got written at his
instance; and the accused were falsely implicated
by preparing false documents while sitting at the
police station.
PW-10 admitted that,— the deceased had
criminal antecedents and had gone to jail many
times; Mahender Khurana (PW-5) had not come to
him for getting his statement recorded, rather PW-
10 went to his house to record his statement;
Mahender Khurana’s statement was recorded four
hours after information was provided by Man
Singh (PW-1) on 01.11.2011; Mahender Khurana
Criminal Appeal No.511 of 2011 Etc. Page 15 of 36
in his statement had told that Govind was also
present.
Statement under section 313 of the Criminal
Procedure Code, 1973 (Cr.P.C.):-
6 . In his statement recorded under section 313
Cr.P.C., Ravi Mandal denied the incriminating
circumstances put to him. He also denied recovery of
the knife and claimed that nothing incriminating was
recovered from his possession. However, he led no
evidence in defence.
7. Similarly, Shabbir Ahmad in his statement
under section 313 Cr.P.C. denied the incriminating
circumstances appearing against him and stated that
nothing incriminating was recovered from his
possession. However, what is pertinent to note is that
the ballistic expert report with regard to the use of the
pistol allegedly recovered from Shabbir was not put to
him while recording his statement under section 313
Cr.P.C.
Trial Court Findings:-
8 . The Trial Court relied on the testimonies of PW-
2 (Chandan Singh) and PW-5 (Mahendra Khurana) to
conclude that the deceased was last seen alive in the
company of the accused going towards that
forest/place from where body of the deceased was
recovered; that PW-5 heard noise of gunshot coming
Criminal Appeal No.511 of 2011 Etc. Page 16 of 36
from the forest soon after the deceased and the two
accused entered that forest and, soon thereafter, saw
the accused exiting that place minus the deceased.
This, according to the Trial Court, was a clinching
circumstance. The Trial Court also used the testimony
of other witnesses including PW-6 to corroborate the
testimony of the two main witnesses with regard to the
deceased being last seen alive with the two accused
around midnight in that area from where, next day
morning, dead body of the deceased was recovered.
The Trial Court noticed that there was no dispute with
regard to the presence of moonlight on that night and
there was no challenge to the capacity of the witnesses
to identify the accused and the deceased. The Trial
Court also noticed that as per FSL report the empty
cartridge recovered from the spot was fired from the
same pistol which was recovered from the possession
of Shabbir. And since the autopsy report had
confirmed that death of the deceased was caused by
use of firearm, the Trial Court concluded that it was
proved beyond doubt that the accused persons had
committed murder of the deceased and to hide the
evidence dumped the body of the deceased in the
forest. They were thus convicted and sentenced
accordingly.
Criminal Appeal No.511 of 2011 Etc. Page 17 of 36
High Court Findings:-
9. The High Court upheld the conviction upon
finding the prosecution evidence reliable and
corroborative of each other.
10. We have heard Ms. Ankita Gautam for the
appellant Ravi Mandal; Mr. Gopal Jha, learned Amicus
Curiae, for Shabbir; and Mr. Jatinder Kumar Bhatia
for the State of Uttarakhand, and have perused the
record.
Submissions on behalf of the appellant Ravi
Mandal:-
11. On behalf of Ravi Mandal, it was submitted
that insofar as the evidence of the deceased being last
seen in the company of the two accused is concerned,
neither PW-1 (father of the deceased) nor PW-3
(mother of the deceased) had seen the deceased in the
company of the two accused on 31.10.2001. Babloo
(PW-7) though disclosed that on 31.10.2001 he met
Chhotu (the deceased) but he did not depose about
any of the two accused being with him. Insofar as the
testimony of PW-2 (Chandan Singh) is concerned, no
reliance is to be placed on it as he is not a witness
arrayed in the chargesheet and there is no cogent
explanation as to why he did not make a disclosure
earlier. Moreover, he is a chance witness whose
Criminal Appeal No.511 of 2011 Etc. Page 18 of 36
presence at the spot finds no proper explanation.
Similarly, PW-5 too is a chance witness whose
explanation for his presence at the spot, at that odd
hour, is falsified by statement of PW-7 and PW-10.
And insofar as PW-6 is concerned, he has been
declared hostile. Thus, there is no reliable evidence of
the deceased being last seen alive with the two
accused.
12. In addition to the above, it was argued that the
testimony regarding recovery of weapons from the
accused does not appear convincing as there is no
public witness to it; the site plan of the place of arrest
and recovery was prepared several days after the
alleged recovery which would suggest that there
existed no place of recovery and arrest but, as an after
thought, to complete the formality, the site plan was
prepared.
13. It was also argued that there is material
discrepancy in the deposition of witnesses as to
whether the FIR was lodged before, or after the dead
body was brought to the police station. The statement
of PW-1 suggests that he was informed by the police
about his son’s body being found, whereupon he went
to the spot and brought the dead body to the police
station to lodge the FIR; whereas, police witnesses
state that they proceeded to the spot after PW-1 had
Criminal Appeal No.511 of 2011 Etc. Page 19 of 36
lodged the report and at the spot they carried out
inquest proceeding. It was urged that this discrepancy
creates doubt as to whether the prosecution case was
developed on guess work at the instance of the police.
This doubt gets doubled because the name of Govind
appeared in the first written report. And when it was
found that Govind had already expired, the name of
Govind was substituted with Shabbir. It was argued
that from the evidence led, it is clear that the deceased
was a person with criminal antecedents and therefore,
could have had several enemies. Hence, according to
the defence counsel, it is a case where in the night
someone killed the son of PW-1; upon discovering his
body, story was developed on the basis of guess work
and so were the accused implicated. It was urged that
the Trial Court and the High Court did not properly
test the prosecution evidence and, therefore, the
judgments of the two courts below are liable to be set
aside.
Submissions on behalf of the appellant Shabbir:-
14. The learned Amicus Curiae representing
Shabbir adopted the submissions made by the learned
counsel representing appellant Ravi Mandal and
added that Shabbir was not named in the initial
report. The statement of the witnesses would suggest
Criminal Appeal No.511 of 2011 Etc. Page 20 of 36
that money was lent to Govind. Chhotu (the deceased)
was demanding his money back from Govind and
therefore, Govind had the motive. Consequently, on
the basis of suspicion, the name of Govind was
mentioned but when it was found that Govind is not
traceable, or was possibly killed, Shabbir’s name was
substituted in place of Govind. In such
circumstances, the implication of Shabbir is shrouded
in suspicion and the prosecution story insofar as it
relates to Shabbir, is not acceptable. The learned
Amicus Curiae claimed that the alleged recovery of
country made pistol is bogus and false which has no
public witness to support. The ballistic report has also
been questioned on the ground that there is no
explanation as to why the country made pistol was not
sent for forensic examination before 15.01.2002, when
it was allegedly recovered on 24.11.2001. It was also
argued that the ballistic report has not been put to the
accused while recording his statement under section
313 Cr.P.C., hence it would have to be eschewed from
consideration.
Submissions on behalf of the State:-
15. Per contra, learned counsel for the State
submitted that PW-7 proved that the deceased had
called for food to the cinema hall; PW-1 and PW-3 have
Criminal Appeal No.511 of 2011 Etc. Page 21 of 36
corroborated PW-7 by stating that the food was
supplied for three persons including the deceased; and
PW-2 and PW-5 have proved that they saw the
deceased and the two accused together at around
midnight near the place from where dead body of the
deceased was recovered next day morning. Therefore,
the chain is complete to nail the accused. It was
argued that the defence has not been able to
demonstrate that PW-5 and PW-2 were inimical to the
accused. Hence, there is no reason for them to lie.
Moreover, defence has not questioned the capacity of
either PW-2 or PW-5 to recognise the accused and
Chhotu. There is also no question put to PW-5 to
doubt the presence of moonlight. All the witnesses
have stated that it was a full moonlight and there is no
challenge to this statement. In such circumstances,
the testimony of PW-5 is reliable. Consequently, the
Trial Court and the High Court were justified in
placing reliance on the same.
16. With regard to the testimony of PW-2, the
learned counsel for the State submitted that PW-2
might not have been prompt in making a disclosure to
the police about the incident, but his testimony cannot
be discarded merely on that ground because, here is a
case where the accused were criminals, apprehension
in the mind of witnesses cannot be ruled out.
Criminal Appeal No.511 of 2011 Etc. Page 22 of 36
17. In respect of the testimony of PW-6, it was
argued that he too supported the prosecution case
with regard to the deceased being with the accused
that fateful evening; therefore, his testimony could be
used to corroborate the testimony of other witnesses.
18. The learned counsel for the State summed up
his submissions by stating that the last seen
circumstance has been proved to the hilt; the recovery
of country made pistol has also been proved which
along with forensic report connects the recovered
weapon with the empty cartridge found at the spot; the
autopsy report/ medical evidence proves that death
was a consequence of gunshot and also accepts the
possibility of death in the night hours of 31.10.2001
when the deceased was last seen alive with the
accused therefore, the chain of circumstances is
complete, leaving no room of doubt with regard to the
guilt of the accused. Hence, the conviction recorded by
the Trial Court, affirmed by the appellate court, calls
for no interference.
Discussion and Analysis:-
19. We have considered the rival submissions and
have perused the records carefully. The striking
feature of the case is that the FIR of the case was
lodged at 0730 Hours on 01.11.2001 after the dead
Criminal Appeal No.511 of 2011 Etc. Page 23 of 36
body of informant’s son was found in a forest.
According to the testimony of police witnesses, it was
the informant who gave information to the police about
his son’s dead body being found in the forest and
thereafter, on the basis of the FIR, investigation
commenced. Whereas, according to PW-1 the police
informed him that his son’s dead body has been found
in the forest and thereafter, he went to the spot,
brought the body to the police station and then lodged
the report. This cleavage in the testimony of
prosecution witnesses is important because it would
throw a question as to whether the prosecution case
is based on informant’s own knowledge and
information or on suggestions/guess work, may be at
the instance of the police.
20. In the FIR there is no disclosure as to how the
body was found in that forest. The only disclosure in
the FIR is that on 31.10.2001 at about 2100 Hours,
the informant’s son was seen in the company of his
friends Govind (non-accused) and Ravi Bangali. As to
who had seen the deceased in the company of the
aforesaid two persons is not disclosed in the FIR. No
doubt, an FIR is not required to be an encyclopedia
and there is no requirement to name all the witnesses
from whom information is sourced, but, what is
important is that, in the FIR, in addition to Ravi
Criminal Appeal No.511 of 2011 Etc. Page 24 of 36
Bangali, suspicion is expressed against one Govind,
who is stated to be a criminal and a person influencing
informant’s son to take a wrong path, and there is no
disclosure about Shabbir i.e. one of the appellants.
What is also strikingly absent in the FIR is that
Chhotu (the deceased) and his friends, on that fateful
evening, were to watch a night show of a movie and,
therefore, Chhotu had sent PW-7 to fetch food from his
parents (i.e. PW-1 and PW-3).
21. The prosecution story which develops later is
to the effect that PW-7 (Babloo) was sent by Chhotu to
fetch food for him and his friends from his house and
Chhotu’s mother (PW-3) sent the food in tiffin boxes.
This part of the story is completely absent in the FIR
even though it was lodged by father of the deceased
who, as per his deposition, was having information
about it. All of this would give rise to a suspicion as
to whether the later improvements in the story were to
create link evidence with the help of newly introduced
witnesses. This suspicion is fortified by PW-10’s
deposition that during investigation PW-1 had
disclosed that the deceased had not been coming
home and, therefore, to test whether the request of
PW-7 to pack food for the deceased was real or not,
PW-1 had followed PW-7 and then he saw Chhotu,
Ravi Bangali together and at some distance Shabbir
Criminal Appeal No.511 of 2011 Etc. Page 25 of 36
was also there. Notably, PW-1 made no such
disclosure during his deposition in Court. It is
therefore clear that there was a deliberate attempt to
multiply the witnesses. Another important
improvement in the prosecution case is with regard to
its edifice i.e. the motive. Initially, the motive for the
crime was enmity with Govind. But, later, when
Govind was found not alive, he was replaced by
Shabbir as an accused. All these circumstances taken
cumulatively create a doubt in our mind as to whether
it is a quintessential case of a blind murder (i.e. taking
place at a secluded place in the darkness of night
where no one could witness the crime), therefore, to
solve the case, while groping for witnesses, the
prosecution story kept evolving, either on the basis of
information received from time to time, or on guess
work emanating from strong suspicion, or police
suggestions. In that backdrop, in our view, this is a
case where the testimony of prosecution witnesses,
regardless of they having no proven grudge against the
accused, was required to be strictly scrutinised with a
degree of circumspection to ascertain whether it is
credible, reliable/trustworthy and truthful, before
basing a conviction thereupon.
Criminal Appeal No.511 of 2011 Etc. Page 26 of 36
22. In light of the above, when we scrutinise the
prosecution evidence, we find that the prosecution
case is primarily based on the evidence of the deceased
being last seen alive with the two accused near the
place of occurrence on or about the probable time of
occurrence i.e. around midnight of 31.10.2001/
01.11.2001. Such evidence is forthcoming from two
witnesses, namely, PW-2 (Chandan Singh) and PW-5
(Mahender Khurana). Insofar as PW-6 is concerned,
we do not consider him reliable, because, firstly, he
was set up as an eye witness of Shabbir firing a gun
shot at the deceased but he denied having witnessed
such gunshot and, secondly, during cross
examination, he stated that he had not seen the
incident.
23. Insofar as PW-2 is concerned, admittedly, he is
not listed as a witness in the police report/charge
sheet. He gave his statement to the police on an
affidavit for the first time on 18.02.2002, that is, the
date when the police report was prepared. This implies
that he remained silent for as long as three and a half
months. In Kali Ram v. State of Himachal
1
Pradesh , a three Judge bench of this Court, while
discarding the testimony of one of the witnesses who
1
(1973) 2 SCC 808
Criminal Appeal No.511 of 2011 Etc. Page 27 of 36
made a delayed disclosure of the incriminating
circumstances of which he was aware much earlier,
held/observed:
“14. … We find it difficult to accept this part of the
deposition of Parma Nand. Parma Nand admits that
he came to know of the murder of Dhianu and Nanti
about four days after those persons were found to
have been murdered. It would, therefore, follow that
Parma Nand came to know of the murder of Dhianu
and Nanti on or about October 4, 1968. Had the
accused left for the house of Dhianu deceased on the
evening of September 29 and had Parma Nand PW
come to know that Dhianu and Nanti were murdered
in their house, this fact must have aroused the
suspicion of Parma Nand regarding the complicity of
the accused. Parma Nand, however, kept quiet in the
matter and did not talk of it. The statement of Parma
Nand was recorded by the police on December 11,
1968. If a witness professes to know about a
gravely incriminating circumstance against a
person accused of the offence of murder and the
witness keeps silent for over two months
regarding the said incriminating circumstance
against the accused, his statement relating to the
incriminating circumstance, in the absence of any
cogent reason, is bound to lose most of its value.
No cogent reason has been shown to us as to why
Parma Nand kept quiet for over two months after
coming to know of the murder of Dhianu and Nanti
about the fact that the accused had left for the house
of the deceased shortly before the murder. We are,
therefore, not prepared to place any reliance upon the
second part of the deposition of Parma Nand.”
(Emphasis supplied)
24. Taking note of the legal principle extracted
above, we have to examine whether, for the delay in
disclosure, there was a cogent explanation offered by
PW-2. In the instant case, the only explanation offered
Criminal Appeal No.511 of 2011 Etc. Page 28 of 36
by PW-2 for his three and a half month’s silence is that
he felt threatened. With regard to his threat
perception, PW-2 stated that in the night of the
incident when he witnessed Ravi Bangali and Shabbir
Ahmad emerging from the forest, soon after the
incident, he noticed their hands and clothes blood
stained. On spotting PW-2, those two accused
threatened him by saying that if he (PW-2) tells to
anyone about what he has seen, he would meet the
same fate. PW-2 stated that with the arrest of the two
accused his fear vanished, therefore, he is now
appearing as a witness. In our view, if this was the
reason for him not to make the disclosure earlier,
there should have been a prompt disclosure by him
once the accused were arrested. Notably, the two
accused were arrested on 24.11.2001, yet, till
18.2.2002 no disclosure was made by him. Therefore,
in our considered view, the explanation offered by him
for the delay in making disclosure is not confidence
inspiring.
25. Assuming that we accept the explanation for
the delay in making the disclosure, considering the
place and time of occurrence, the presence of PW-2 at
the spot does not appear natural, particularly, at that
odd hour of the night. To explain his presence at the
scene of crime, PW-2 stated that his parents stay at
Criminal Appeal No.511 of 2011 Etc. Page 29 of 36
another place in Mohalla Khatta and, therefore, to
meet them he visited them that fateful night and on
way return he could witness the incident. During cross
examination, PW-2 stated that he usually takes dinner
at 2100 Hours with his family; and that he used to
visit his parents at least once a week. According to PW-
2, that fateful night he left his house to visit his
parents after having dinner in his own house and on
way return, at 0030 Hours he witnessed the incident.
This explanation is not confidence inspiring,
particularly, because his parents have not been
interrogated or examined to corroborate PW-2’s visit to
their house at that odd hour of the night. In our view,
PW-2 is a mere chance witness, whose presence at the
spot, at that hour, is not satisfactorily explained
therefore, bearing in mind that he kept silent for
unusually long i.e. for more than three and a half
months, his testimony is not worthy of any credit. In
our view, the courts below erred by placing reliance on
his testimony.
26. As regards the testimony of PW-5 (Mahender
Khurana) he too, is a chance witness. As to when
testimony of a chance witness could be relied, the law
is settled, which is, that the evidence of a chance
witness requires a very cautious and close scrutiny
and a chance witness must adequately explain his
Criminal Appeal No.511 of 2011 Etc. Page 30 of 36
presence at the place of occurrence. Deposition of a
chance witness whose presence at the place of incident
remains doubtful should be discarded ( See: Rajesh
2
Yadav & Another v. State of Uttar Pradesh ; and,
3
Jarnail Singh & Others v. State of Punjab .
27. The explanation offered by PW-5 for his
presence at the spot at that odd hour appears false.
According to PW-5, he was having an upset stomach,
therefore, while watching a night show of a movie, to
attend to nature’s call, he came out of the cinema hall
and, while he was easing himself, he got the chance to
witness the incident. It be noted that the investigating
officer (PW-10) and PW-7, a gram vendor in that
cinema hall, have deposed that there are toilets in the
cinema hall where no money is charged for their use.
This falsifies the explanation of PW-5 that he went out
of the cinema hall to ease himself because cinema hall
charged money for use of the toilet. Otherwise also,
PW-10 (the investigating officer) in his deposition had
stated that he was not shown the place where PW-5
squatted to ease himself.
(2022) 12 SCC 200
2
(2009) 9 SCC 719
3
Criminal Appeal No.511 of 2011 Etc. Page 31 of 36
28. Besides that, PW-5 is not consistent because,
in his statement under section 161 Cr.P.C., with
which he was confronted during the course of his
deposition, he had indicted Govind, Ravi Bangali and
Shabbir by stating that all three were present with the
deceased but, during his deposition in Court, he
stated that Govind was not present. He is also not
consistent with regard to the place where his
statement was recorded. At one place he states that it
was recorded at the police station and at another place
he states that it was recorded at his shop.
29. Another important feature of the case is that,
according to PW-10 (investigating Officer), PW-5’s
statement was recorded by him on 01.11.2001 at PW-
5’s house. What was the reason for the police to go to
the residence of PW-5 to record his statement is not
disclosed by the prosecution. We find it inexplicable as
to why police would go to PW-5’s residence to record
his statement when the FIR makes no disclosure
about PW-5’s presence at the scene of crime or with
regard to his knowledge about the incident. All these
circumstances give rise to a lingering doubt in our
mind as to whether, on discovery of the dead body in
the forest, the accused were implicated at the instance
of the police on suspicion rather than on information
received from persons conversant with the facts.
Criminal Appeal No.511 of 2011 Etc. Page 32 of 36
30. For all the reasons above, when we evaluate
the testimony of PW-2 and PW-5 carefully and with
due caution, as is required in the facts of the case, we
find that their testimony does not inspire our
confidence as to sustain the conviction. Unfortunately,
the courts below accepted the same as gospel truth,
without testing it on the anvil of settled legal
principles, thereby resulting in grave miscarriage of
justice. We, therefore, conclude that the prosecution
has failed to prove beyond reasonable doubt that the
deceased was last seen alive in the company of the
accused near the spot at the relevant time.
31. In so far as recovery of the country made pistol
and knife from the person of the accused at the time
of their arrest is concerned, the same does not inspire
our confidence for the following reasons — According
to PW-10, the investigating officer, while he was
looking out for the suspects/accused, received an
information from an informer that the accused were to
come to a specified place at 1600 Hours. But, there is
no record of receipt of the said information even
though it is stated to have been received few hours
before the action. Assuming that such information
was received, there appears no effort to rope in a
public witness even though a locality, as per statement
of PW-10, was just 200 meters away from that spot.
Criminal Appeal No.511 of 2011 Etc. Page 33 of 36
Lastly, what is most interesting is that the
investigating officer, who investigated the case relating
to the offence punishable under the Arms Act,
prepared the site plan of the place of arrest/recovery
on 06.12.2001 even though arrest was allegedly
effected on 24.11.2001, which, in the facts of the case,
would suggest that it was an exercise to complete the
formality. Moreover, the site plan does not disclose the
place where the Jeep was hidden in the forest to
ambush the accused. Having regard to the
circumstances noted above, including the fact that
Shabbir was not named as a suspect in the FIR and
his name cropped up later in the statement of PW-5,
whose statement was recorded on the same day at his
residence, even though, he was not cited as a witness
in the FIR, bearing in mind the statement of PW-1 that
the police made him to submit the second report
indicting Shabbir, we are of the view that the police
had shown extraordinary interest in implicating
Shabbir and therefore, for all the reasons above, the
alleged recovery of gun and knife shown from the
appellants does not inspire our confidence. In our
considered view, it would be unsafe to rely on such
recovery to sustain the conviction.
Criminal Appeal No.511 of 2011 Etc. Page 34 of 36
32. Insofar as forensic report/ballistic report is
concerned, the same has not even been put to
Shabbir, from whom the country made pistol was
seized, while recording his statement under section
313 of Cr.P.C., therefore, in any event, it would have
to be eschewed from consideration.
Conclusion:-
33. In light of the discussion above, we are of the
considered view that the case in hand is a
quintessential case where to solve out a blind murder,
occurring in a forest in the darkness of night, bits and
pieces of evidence were collected which warranted a
strict scrutiny before basing a conviction thereupon.
On putting the prosecution evidence to strict scrutiny
and testing the same on the anvil of settled legal
principles as discussed above, we find the evidence not
confidence inspiring as to uphold the conviction of the
accused appellants. In our view, the courts below have
failed to properly evaluate and test the evidence by
applying the correct legal principles. In such
circumstances, the judgments of the courts below are
liable to be set aside. Consequently, the appeals are
allowed. The impugned judgment and orders of the
High Court and the Trial Court are set aside. The
Criminal Appeal No.511 of 2011 Etc. Page 35 of 36
appellants are acquitted of all the charges for which
they have been tried and convicted.
34. The appellants are reportedly on bail, they
need not surrender. Their bail-bonds, if any, are
discharged. In case they are not on bail, they shall be
released forthwith unless wanted in any other case.
....................................J.
(Hrishikesh Roy)
....................................J.
(Manoj Misra)
New Delhi;
May 18, 2023
Criminal Appeal No.511 of 2011 Etc. Page 36 of 36