VED PRAKASH @ PAHALWAN vs STATE OF UTTARAKHAND
- Court
- Uttarakhand High Court
Reserved on: 18.08.2026
Delivered on:02.09.2026
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 17 of 2013
Ved Prakash @ Pahalwaan ......Appellant
Versus
State of Uttarakhand ..….Respondent
,,,,,,,
Present:
Ms. Swati Sharma, Advocate for the appellant and Mr. Vikas Anand,
Amicus Curiae .
Mr. J.S. Virk, Additional Advocate General for the State.
Mr. Arvind Vashishtha, Senior Advocate, assisted by Mr. Rachit
Manglik, Advocate for the informant.
JUDGMENT
Coram: Hon’ble Ravindra Maithani, J
Hon’ble Siddhartha Sah, J.
Per: Hon’ble Ravindra Maithani, J.
Instant appeal is preferred against the judgment and
order dated 14.01.2013, passed in Sessions Trial No. 143 of 2000,
th
State Vs. Jiya Lal and another, by the court of 5 Additional Sessions
Judge, Haridwar (“the case”). By it, the appellant Ved Prakash @
Pahalwaan has been convicted under Section 307 IPC and sentenced
to life imprisonment with a fine of Rs.5000/- with the default clause
and other directions.
2. The case is based on an FIR lodged by PW1 Sardar Sohan
Singh on 04.07.1999, at 8:35 a.m. at Police Station Jwalapur, District
Haridwar. According to it, PW1 Sardar Sohan Singh had certain land
at Ranipur Jhal, within Police Station Jwalapur, District Haridwar.
One Jiya Lal and the appellant wanted to grab that land. There was
also, a case pending with Jiya Lal. On 04.07.1999, in order to grab
the property the appellant with Jiya Lal and the driver of tractor,
forcibly started ploughing the field. PW1 Sardar Sohan Singh and
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PW10 Lakhbeer Singh objected to it. But, the FIR records that
thereafter, on the exhortation given by Jiya Lal, the appellant opened
fire with his revolver on PW10 Lakhbeer Singh, due to which, PW10
Lakhbeer Singh sustained serious injuries. PW1 Sardar Sohan Singh
and his family members raised an alarm, due to which, many persons
came there. Thereafter, the appellant further opened fire with one Jiya
Lal and they ran away. PW10 Lakhbeer Singh was taken to
Government Hospital, Haridwar. Because PW10 Lakhbeer Singh was
much serious, therefore, on doctor’s advice, he was taken to Meerut.
It is at that stage, PW1 Sardar Sohan Singh lodged an FIR Ex. A1,
based on which, chik FIR Ex. A7 was recorded and at 08:35 a.m.,
Case Crime No. 283 of 1999 was lodged against the appellant and
others. PW10 Lakhbeer Singh was medically examined prior to lodging
of the FIR at 8:15 a.m. at Government Hospital, Haridwar. PW5 Dr.
S.C. Srivastava examined him and found following injuries on his
person:-
“(i) Lacerated wound 0.7 cm x 0.6 cm x penetration
deep on left temporal region 3 cm away from lateral
end of left eyebrow, bleeding present. Blackening
tattooing and singeing present. K.U.O. Advised X-
ray. Margins inverted.
(ii) Contused swelling 1.8 x 1 cm on left eyebrow.
(iii) Bleeding from left ear present.”
3. Thereafter, PW10 Lakhbeer Singh was taken to Lokpriya
Hospital Meerut, where PW6 Dr. Ajay Gupta on conducting X-ray
found that the skull bone was fractured and a metallic piece (Bullet)
was fixed over the back of neck. There was clotting and swelling on
the brain A surgical procedure was done, broken bones and metal
.
piece were taken out and a report Ex. A4 was prepared. The medico-
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legal X-ray report is Ex. A5. Ex. A3 is a report that was also prepared
by PW6 Dr. Ajay Gupta. Investigation was carried out. During
investigation, the Investigating Officer took the blood stained soil and
plain soil from the place of incident and prepared its recovery memo
Ex. A10. The tractor which was used by the appellant at the time of
incident was also taken into custody by the Investigating Officer, of
which the recovery memo Ex. A11 was prepared. At the time of
incident, the clothes which were worn by PW10 Lakhbeer Singh were
also taken into custody by the Investigating Officer, of which recovery
memo Ex. A12 was prepared. After investigation, charge sheet Ex. A6
was filed against the appellant and one Jiya Lal under Section 307
IPC, which is the basis of the case.
4. On 17.05.2001, charge under Section 307 IPC was
framed against the appellant and Jiya Lal. The appellant denied the
charge and claimed trial.
5. In order to prove its case, prosecution examined, ten
witnesses, namely, PW1 Sardar Sohan Singh, PW2 Devendra Singh,
PW3 Smt. Surendra Kaur, PW4 Gurjant Singh, PW5 Dr. S.C.
Srivastava, PW6 Dr. Ajay Gupta, PW7 SI, R.K. Tyagi, PW8 Head
Constable Sunil Kumar, PW9 R.B. Chamola and PW10 Lakhbeer
Singh.
6. After prosecution evidence, the appellant was examined
under Section 313 of the Code of Criminal Procedure, 1973 (“the
Code”). According to him, he has been falsely implicated.
7. After hearing the parties, by the impugned judgment and
order, Jiya Lal has been acquitted of the charge under Section 307
4
IPC framed against him. The court noted that there was enmity with
Jiya Lal. Therefore, he was falsely implicated. The appellant has been
convicted and sentenced, as stated hereinbefore. Aggrieved, the
appellant preferred the instant appeal.
8. In this appeal, on 14.07.2026, on behalf of the appellants
time was sought, the Court passed a detailed order noting that it
appears that the appellant is delaying the disposal of this appeal.
Thereafter, this Court requested Mr. Vikas Anand, Advocate to assist
the Court on behalf of the appellant. Accordingly, he was appointed
Amicus Curiae. But thereafter, Ms. Swati Sharma, Advocate also
appeared for the appellant to argue the case.
9. Heard learned counsel for the parties and perused the
record.
10. Learned counsel for the appellant submits that there is
no independent witness to the incident; there is no forensic evidence
to connect the appellant with the crime. She would raise the following
points in her submissions:-
(i) The weapon of offence, the revolver has not been
seized.
(ii) The bullet, which was allegedly detected from the
person of PW10 Lakhbeer Singh by PW6 Dr. Ajay
Gupta has not been sent for forensic examination.
(iii) How many fires were made, it is also not proved.
(iv) There is variation with regard to the registration
number of the tractor.
(v) The conviction is based merely on the cross FIR
lodged by the appellant Ved Prakash @ Pahalwaan.
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(vi) PW1 Sardar Sohan Lal has not proved by document
that he is owner of Plot No. 801. Since in the cross
FIR, Plot No. 801 was not recorded in the instant
case, PW1 Sardar Sohan Singh claims ownership of
Plot No. 801.
(i-a) PW3 Smt. Surendra Kaur has also stated
that the residence of the appellant was at a
distance of 100 meters.
(i-b) The plot which the appellant Ved Prakash @
Pahalwaan was ploughing at the time of
incident belongs to him, as PW2 Devendra
Singh has stated that the house of the PW10
Lakhbeer Singh was at a distance of 150
meters from the place of incident.
(i-c) PW7 SI R.K. Tyagi, the Investigating Officer
has not inquired about the ownership of the
plot
(i-d) PW9 R.B. Chamola, another Investigating
Officer had also not inquired about the
ownership of the plot which the appellant
was ploughing at the time of incident.
(i-e) PW10 Lakhbeer Singh has also admitted that
some of the land they had purchased and on
some land they had possession only.
(vii) According to PW5 Dr. S.C. Srivastava, there was
blackening, tattooing and singeing at the wound,
which is not possible if fire is made from a distance
as alleged by the prosecution.
(viii) The statement of PW6 Dr. Ajay Gupta is not
reliable. He has produced the part of bullet for the
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first time in court on 09.12.2012. It was not taken
by the Investigating Officer during investigation.
Even otherwise, it is argued that had PW10
Lakhbeer Singh been so serious, he would not have
been taken in such condition to Meerut at a
distance.
(ix) PW9 R. B. Chamola, Investigating Officer has
admitted that he had arrested the appellant from
District Hospital, Haridwar, which means the
appellant was also injured.
11. On the other hand, learned Senior counsel for the State
submits that it is a cross case. The appellant had also lodged FIR No.
283A/1999 under Section 307 IPC, Police Station Jwalapur, District
Haridwar against PW1 Sardar Sohan Singh and others, which was
lodged on 04.07.1999 at 10:45 a.m. and it also records that the
incident took place at 7:45 a.m. on 04.07.1999, in which, it is the
case of the appellant that while he was ploughing the field, he was
fired and in his defence, he opened the fire, which hit PW10 Lakhbeer
Singh. It is argued that the place of incident, time and date are
admitted. Learned Senior counsel also raised the following points in
his submissions:-
(i) Even injured witness is enough to prove the case if
it is reliable.
(ii) PW5 Dr. S.C. Srivastava and PW6 Dr. Ajay Gupta,
both the doctors have supported the prosecution
case.
(iii) The injuries on PW10 Lakhbeer Singh are neither
superficial nor self inflicted.
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(iv) The statement of the witnesses proves that the
appellant fired at PW10 Lakhbeer Singh.
(v) The site plan of the place of incident Ex. A9 records
that the fire was made from 8 feet and if hand is
extended upon firing such injuries could be
sustained by the injured as sustained by PW10
Lakhbeer Singh.
(vi) There is no forensic examination of course, but it is
a defective investigation and its benefit cannot be
taken by the appellant.
(vii) There is an injured witness and other eyewitnesses
of the incident. Their evidences are fully reliable.
Hence, absence of forensic report does not doubt
the prosecution case.
(viii) PW10 Lakhbeer Singh was first taken to the local
hospital. His condition was serious, therefore, in
order to provide him the best medical facilities, he
was rushed to Meerut. If there was no referral, it
does not make any difference. It does not doubt the
prosecution case.
12. Learned Senior counsel for the State also submits that
the appellant has taken a plea of self defence, but it has to be proved
independently and the burden lies on the appellant, which he failed to
discharge. In fact, it is argued that in suggestions, it has been stated
on behalf of the appellant that, in defence, he opened the fire, which
hit PW10 Lakhbeer Singh. It is argued that it further supports the
prosecution case.
8
13. Learned Senior Counsel for the informant submits that
although the chain of custody of bullet has not been proved as such,
but even in the absence of it, the prosecution has been able to prove
its case beyond reasonable doubt. There are oral and medical
evidences.
14. Rejoining the arguments, learned counsel for the
appellant submits that even in the case of self defence, the
prosecution has to prove its case beyond reasonable doubt and it is
only thereafter, the accused may be invited to prove that he acted in
the self defence. In support of her contention, learned counsel has
placed reliance on the principles of law, as laid down in the case of
State of UP Vs. Ram Swarup and another, (1974) 4 SCC 764, wherein
Hon’ble Supreme Court held that “the burden which rests on the
prosecution to establish its case beyond a reasonable doubt is
neither neutralised nor shifted because the accused pleads the
right of private defence. The prosecution must discharge its
initial traditional burden to establish the complicity of the
accused and not until it does so can the question arise whether
the accused has acted in self-defence or not does not arise.
Further Hon’ble Supreme Court held that “The right of private
defence is a right of defence, not of a retribution. It is available
in face of imminent peril to those who act in good faith and in no
case can the right be conceded to a person who stage-manages
the situation wherein the right can be used as a shield to justify
an act of aggression.”
15. On the question of suggestions given by the appellant
that he fired in his private defence which hit PW10 Lakhbeer Singh, it
9
is argued that this part was not put to the appellant under Section
313 of the Code. Hence, it could not be read into evidence.
16. In support of her contention, learned counsel has placed
reliance on the judgment of the Hon’ble Supreme Court in the case of
Aejaz Ahmad Sheikh Vs. State of Uttar Pradesh and another, 2025
SCC OnLine SC 913. In paras 21 of the 22 of the judgment, the
Hon’ble Supreme Court observed as follows:-
“21. Thus, the evidence of prosecution regarding the
dying declaration was not put to the accused in his statement
under Section 313 of CrPC. The law on this aspect is well-
settled. In the case of Raj Kumar v. State (NCT of Delhi), this
Court has summarised the law on his aspect. Paragraph 22 of
the said decision reads thus:
“22. The law consistently laid down by this
Court can be summarised as under:
22.1. It is the duty of the trial court to put each
material circumstance appearing in the evidence
against the accused specifically, distinctively and
separately. The material circumstance means the
circumstance or the material on the basis of which the
prosecution is seeking his conviction.
22.2. The object of examination of the accused
under Section 313 is to enable the accused to explain
any circumstance appearing against him in the
evidence.
22.3. The Court must ordinarily eschew
material circumstances not put to the accused from
consideration while dealing with the case of the
particular accused.
22.4. The failure to put material circumstances
to the accused amounts to a serious irregularity. It will
vitiate the trial if it is shown to have prejudiced the
accused.
22.5. If any irregularity in putting the material
circumstance to the accused does not result in failure
of justice, it becomes a curable defect. However, while
deciding whether the defect can be cured, one of the
considerations will be the passage of time from the
date of the incident.
10
22.6. In case such irregularity is curable, even
the appellate court can question the accused on the
material circumstance which is not put to him.
22.7. In a given case, the case can be
remanded to the trial court from the stage of recording
the supplementary statement of the accused
concerned under Section 313CrPC.
22.8. While deciding the question whether
prejudice has been caused to the accused because of
the omission, the delay in raising the contention is
only one of the several factors to be considered.”
The prosecution has heavily relied upon the dying
22.
declarations of the two victims. As this evidence was not put
to the accused in his statement under Section 313 of
the CrPC, he was denied an opportunity to explain the same.
Hence, this omission causes prejudice to him. Therefore, the
evidence of dying declaration will have to be kept out of
consideration.”
17. Learned counsel for the appellant submits that the
appellant had filed certain documents in defence alongwith list dated
08.11.2012, in which the statements of PW5 Dr. S.C. Shrivastava and
PW6 Dr. Ajay Gupta have been filed alongwith some copy of the
orders. It is argued that these statements may be read into evidence.
18. It has also been argued that based on similar evidence,
Jiya Lal has been acquitted by the court below. Therefore, on the
similar evidence, the appellant may not be convicted. In support of
her contentions, learned counsel has placed reliance on the principles
of law, as laid down in the case of Ram Singh Vs State of Uttar
Pradesh, (2024) 4 SCC 208.
19. In the case of Ram Singh ( supra ), in fact, FIR was lodged
against Ram Singh and Lala Ram. Lala Ram was acquitted by the
court below. When the matter reached to Hon’ble Supreme Court, the
Hon’ble Supreme Court made greater discussion on the evidence and
11
in para 26 of the judgment observed that “there are glaring
inconsistencies with the prosecution version which have been
magnified by the absence of testimony of material witnesses and
the ballistic report coupled with non-recovery of weapon of
In that context, in para 37, the Hon’ble Supreme Court
offence.”
observed that
“when there is a similar or identical evidence of
eyewitnesses of two accused by ascribing them the same or
similar role, the court cannot convict one accused and acquit the
other.”
20. Before arguments are appreciated, it would be apt to
examine as to what the witnesses have stated.
21. PW1 Sardar Sohan Singh is the informant. He has proved
the FIR. According to him, he resides at Ranipur Jhal where he has
his agriculture land also. The appellant Ved Prakash @ Pahalwaan
and Jiya Lal wanted to grab his land. The case was already pending
with Jiya Lal. On 04.07.1999 at 8:00 in the morning, the appellant
Ved Prakash @ Pahalwaan with others was ploughing their field with
tractor. This witness, his son and other family members questioned
the appellant and others, as to why they are ploughing their field. At
it, according to PW1 Sardar Sohan Singh, Jiya Lal made an
exhortation, caught hold of PW10 Lakhbeer Singh. Thereafter, the
appellant opened fire with his revolver on PW10 Lakhbeer Singh, due
to which, he sustained injuries. They raised an alarm. Many persons
reached there and thereafter, the appellant Ved Prakash @ Pahalwaan
and Jiya Lal opened fire and ran away. PW10 Lakhbeer Singh was
taken to Government Hospital, Haridwar. His condition was much
serious. Therefore, the doctor had advised to take him to Meerut. This
witness has also stated that, in fact, the appellant Ved Prakash @
12
Pahalwaan has threatened them that he would make a false case
against them. This witness was busy in the treatment of his son.
Therefore, he lodged a report after a while. He proved his report Ex.
A1, which was lodged at the police station at 08:35 a.m. According to
him, the police has also recovered the tractor which is Ex.1.
22. PW2 Devendra Singh is the witness, who reached at the
spot after hearing the sound of fire. According to him, he had seen the
appellant running from the place of incident.
23. PW3 Smt. Surendra Kaur is sister of PW1 Sardar Sohan
Singh. She has corroborated the statement of PW1 Sardar Sohan
Singh.
24. PW4 Gurjant Singh is the person in whose presence the
police had taken into custody the plain soil and blood stained soil and
the clothes of PW10 Lakhbeer Singh. He has proved his signatures on
those recovery memos.
25. PW5 Dr. S.C. Srivastava has examined the injured PW10
Lakhbeer Singh on 04.07.1999 at 08:15 a.m., in Government
Hospital, Haridwar and found injuries on him, which have already
been noted hereinbefore. According to the doctor, except injury no.1,
all were simple injuries caused by firearm and they were fresh. He
proved his report Ex. A2.
26. PW6 Dr. Ajay Gupta, is a doctor in Lokpriya Hospital in
Meerut. According to him, on 04.07.1999, the injured PW10 Lakhbeer
Singh was admitted in hospital. On examination, they found that the
bones in his skull were fractured and had inserted inside the brain.
13
There were blood clotting and swelling also. It was also found that a
metal piece was stuck on the sixth bone in the neck. PW6 Dr. Ajay
Gupta had done the operation of the brain of the injured PW10
Lakhbeer Singh and had removed the fractured bone, repaired the
brain and the metal piece was also taken out, which he placed in the
court as Material Ex. 2, plastic box Material Ex. 3 and a cloth
covering it Material Ex. 4. Post operation, he also prepared a note,
which is Ex. A3. According to him, he also prepared the
supplementary report and X-ray report, which he proved as Ex. A4
and Ex. A5. He also proved X-ray plates Ex. 5 to 8.
27. PW7 SI R.K. Tyagi, conducted investigation in the matter.
He submitted the charge sheet alone.
28. PW 8 Head Constable Sunil Kumar had recorded chik
FIR, Ex. A7, which reveals that the FIR was lodged at 08:35 a.m. on
04.07.1999. He has also proved the extract of General Diarty entry,
Ex. A8.
29. PW9 R.B. Chamola is the first Investigating Officer, who,
in fact, conducted the investigation, prepared the site plan Ex. A9,
took into custody, plain soil and blood stained soil and prepared its
recovery memo, Ex. A10. He also took into custody the tractor and
prepared its recovery memo, Ex. A11. PW9 R.B. Chamola had
proceeded to Lokpriya Hospital, Meerut on 07.07.1999, where PW10
Lakhbeer Singh was in emergency and this witness was told that the
injured is not in a condition to speak. Therefore, he could not record
his statement. But, he had taken the medical documents pertaining to
the injured, including X-ray report which revealed that, in fact, fire
shot hit on the neck of the injured. This witness has also taken into
14
custody the clothes worn by the injured on the date of incident. He
prepared its recovery memo, Ex. A12. He also arrested the appellant
from District Haridwar. He proved the clothes worn by PW10
Lakhbeer Singh at the time of incident, which are Material Exs.9 to 11
and other articles Material Exs. 12 to Ex. 17. In fact, after
investigation, this witness PW7 SI R.K. Tyagi filed a charge sheet.
30. PW10 Lakhbeer Singh is the injured witness. He has
corroborated the statements of PW1 Sardar Sohan Singh. According
to him, on 04.07.1999, when the appellant and others were ploughing
their field at 08:00 in the morning, they were questioned, at which
Jiya Lal caught hold of him and the appellant fired at him, due to
which, he fell on the ground and became unconscious. This is the
entire evidence.
31. In the criminal law, it is settled proposition that
prosecution has to prove its case beyond reasonable doubt.
32. In the case of Shivaji Sahabrao Bobade and another
Vs. State of Maharashtra, (1973) 2 SCC 793, this concept of proof
beyond reasonable doubt has been discussed by the Hon’ble Supreme
Court and in para 6, the Hon’ble Supreme Court 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
15
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.”
33. Proof beyond reasonable doubt does not mean that it
should be beyond any shadow of doubt. There may be some kind of
doubt. What is that standard?
34. In the case of Iqbal Moosa Patel Vs. State of Gujarat,
(2011) 2 SCC 198, the Hon’ble Hon’ble Supreme Court discussed this
aspect in paras 23 and 24, and 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
16
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.” [Ed.: As observed in Lal Singh v. State
of Gujarat, (2001) 3 SCC 221, p. 273, para 88.
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.”
17
35. In the case of Ashok Debbarma alias Achak Debbarma
Vs. State of Tripura, (2014) 4SCC 747, the Hon’ble Supreme Court
has further cautioned that in a criminal case, the prosecution should
prove the case with absolute or mathematical certainty, but only
beyond reasonable doubt. In para 31 of the judgment, the Hon’ble
Supreme Court observed as follows:-
“31. In Commonwealth v. Webster [(1850) 5 Cush 295
: 52 Am Dec 711 (Mass Sup Ct)] at p. 320, Massachusetts
Court, as early as in 1850, has explained the expression
“reasonable doubt” as follows:
“Reasonable doubt … is not a mere possible
doubt; because everything relating to human affairs,
and depending on moral evidence, is open to some
possible or imaginary doubt. It is that state of the case
which, after the entire comparison and consideration
of all the evidence, leaves the minds of the jurors in
that condition that they cannot say they feel an
abiding conviction.”
In our criminal justice system, for recording guilt of
the accused, it is not necessary that the prosecution
should prove the case with absolute or mathematical
certainty, but only beyond reasonable doubt. Criminal
courts, while examining whether any doubt is beyond
reasonable doubt, may carry in their mind, some
“residual doubt”, even though the courts are convinced
of the accused persons' guilt beyond reasonable doubt.
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36. In the cases where an accused takes an exercise of right
to private defence, first and foremost, prosecution has to prove its
case beyond reasonable doubt and then it falls back on the accused to
justify his action so as to bring him within the category of right to self
defence.
18
37. In the case of James Martin Vs. State of Kerela, (2004) 2
SCC 203, the Hon’ble Supreme Court discussed the concept of self
defence and in paras 18, 19 and 20 observed as follows:-
“18. The right of self-defence is a very valuable right,
serving a social purpose and should not be construed
narrowly. (See Vidhya Singh v. State of M.P. [(1971) 3
SCC 244 : 1971 SCC (Cri) 469 : AIR 1971 SC 1857] )
Situations have to be judged from the subjective point
of view of the accused concerned in the surrounding
excitement and confusion of the moment, confronted
with a situation of peril and not by any microscopic
and pedantic scrutiny. In adjudging the question as to
whether more force than was necessary was used in
the prevailing circumstances on the spot, it would be
inappropriate, as held by this Court, to adopt tests by
detached objectivity which would be so natural in a
courtroom, or that which would seem absolutely
necessary to a perfectly cool bystander. The person
facing a reasonable apprehension of threat to himself
cannot be expected to modulate his defence step by
step with any arithmetical exactitude of only that
much which is required in the thinking of a man in
ordinary times or under normal circumstances.
19. In the illuminating words of Russell (Russell on
Crime, 11th Edn., Vol. I at p. 49):
“… a man is justified in resisting by force
anyone who manifestly intends and endeavours
by violence or surprise to commit a known
felony against either his person, habitation or
property. In these cases, he is not obliged to
retreat, and may not merely resist the attack
where he stands but may indeed pursue his
adversary until the danger is ended and if in a
conflict between them he happens to kill his
attacker, such killing is justifiable.”
20. The right of private defence is essentially a
defensive right circumscribed by the governing statute
i.e. IPC, available only when the circumstances clearly
justify it. It should not be allowed to be pleaded or
availed as a pretext for a vindictive, aggressive or
retributive purpose of offence. It is a right of defence,
not of retribution, expected to repel unlawful
aggression and not as a retaliatory measure. While
providing for exercise of the right, care has been taken
in IPC not to provide and has not devised a
19
mechanism whereby an attack may be a pretence for
killing. A right to defend does not include a right to
launch an offensive, particularly when the need to
defend no longer survived.”
38. Insofar as, suggestion given by the accused is concerned,
it definitely forms the part of evidence, although, it cannot form the
basis of conviction per se, it can only support the prosecution case.
39. In the case of Balu Sudam Khalde and another Vs. State
of Maharashtra, (2023) 13 SCC 365, the Hon’ble Supreme Court
discussed the effect of the incriminating suggestions given on behalf
of the accused and held that, in fact, prosecution has to prove its case
beyond reasonable doubt on its own and once it is proved, the
suggestions made by the defence counsel could be considered to
fortify the view with regard to proof beyond reasonable doubt already
taken by the court. In para 40 of the judgment, the Hon’ble
Supreme Court discussed this aspect as follows:-
“40. It is a cardinal principle of criminal jurisprudence
that the initial burden to establish the case against the
accused beyond reasonable doubt rests on the prosecution. It
is also an elementary principle of law that the prosecution has
to prove its case on its own legs and cannot derive advantage
or benefit from the weakness of the defence. We are not
suggesting for a moment that if prosecution is unable to prove
its case on its own legs then the Court can still convict an
accused on the strength of the evidence in the form of reply to
the suggestions made by the defence counsel to a witness.
Take for instance, in the present case we have reached to the
conclusion that the evidence of the three eyewitnesses
inspires confidence and there is nothing in their evidence on
the basis of which it could be said that they are unreliable
witnesses. Having reached to such a conclusion, in our
opinion, to fortify our view we can definitely look into the
suggestions made by the defence counsel to the eyewitnesses,
the reply to those establishing the presence of the accused
persons as well as the eyewitnesses in the night hours. To put
it in other words, suggestions by itself are not sufficient to
hold the accused guilty if they are incriminating in any
manner or are in the form of admission in the absence of any
20
other reliable evidence on record. It is true that a suggestion
has no evidentiary value but this proposition of law would not
hold good at all times and in a given case during the course of
cross-examination the defence counsel may put such a
suggestion the answer to which may directly go against the
accused and this is exactly what has happened in the present
case.”
40. And finally, in para 41 of the judgment in the case of Balu
Sudam Khalde (supra), the principle of law has been laid down by the
Hon’ble Supreme Court as follows:-
“ 41. The principle of law that in a criminal case, a lawyer has
no implied authority to make admissions against his client
during the progress of the trial would hold good only in cases
where dispensation of proof by the prosecution is not
permissible in law. For example, it is obligatory on the part of
the prosecution to prove the post-mortem report by examining
the doctor. The accused cannot admit the contents of the
post-mortem report thereby absolving the prosecution from its
duty to prove the contents of the same in accordance with law
by examining the doctor. This is so because if the evidence per
se is inadmissible in law then a defence counsel has no
authority to make it admissible with his consent..”
41. It is argued that there is no independent witness to the
incident. The quality of witness depends upon the facts and
circumstances of the each case.
42. In the instant case, a few things are admitted to the
prosecution and to the defence. They are as follows:-
(i) There was a dispute with regard to the agricultural
fields between the parties, with regard to its
ownership..
21
(ii) There were some civil litigations also in which, the
appellant was not a party.
(iii) With regard to the incident dated 04.07.1999 at
08:00 a.m., in an agricultural field at Ranipur Jhal,
Haridwar, PW 1 Sardar Sohan Singh lodged the
instant FIR No. 283 of 1999, at 8:35 a.m. on the
same date against the appellant and others, which
records that the appellant and others were forcibly
ploughing the field of PW1 Sardar Sohan Singh,
and when they were questioned, the appellant Ved
Prakash @ Pahalwaan opened fire, which hit PW10
Lakhbeer Singh.
(iv) Admittedly, the appellant also got a report lodged
against PW1 Sardar Sohan Singh and others at
10:40 a.m. at Police Station Jwalapur, District
Haridwar, which was registered as Case Crime No.
283A of 1999 and according to it, on 04.07.1999, at
7:45 a.m., when the appellant alongwith others was
ploughing his fields, PW1 Sardar Sohan Singh
alongwith others came and suddenly opened fire at
him, which hit the appellant and in his defence, the
appellant with his licensed pistol opened fire.
43. Date, time and place of incident are admitted. The
incident took place at 08:00 in the morning in an agricultural field.
The natural witnesses would be the family members and they have
been examined in the instant case. PW1 Sardar Sohan Singh is the
informant. PW2 Devendra Singh reached soon after the incident and
PW3 Surendra Kaur is sister of PW1 Sardar Sohan Singh. Most
importantly, PW10 Lakhbeer Singh is the injured witness. Therefore,
22
the evidence of these witnesses cannot be discarded merely on this
ground that they are interested witnesses. An injured witness is
always interested in the prosecution of the case. He would not let the
actual assailant go scot-free. He would ensure that the person who hit
him and made him injured is brought to justice. Therefore, there is
less merit in the argument that the prosecution case gets doubtful
because there is no independent witness.
44. It is true that investigation in the instant case is not up
to the mark. It could have been more scientifically done. It is a case of
fire arm injury. The firearm was not some illegal weapon. The
appellant himself lodged a report which was Case Crime No. 283A of
1999. It is admitted case of the parties that the appellant opened fire
with his licensed revolver. That revolver ought to have been taken into
custody by the Investigating Officer and it should have been sent for
forensic or ballistic examination. It was not done. What is more
important is that according to PW9 R. B. Chamola, the Investigating
Officer, he had gone to Lokpriya Hospital Meerut so as to take the
statement of the injured PW10 Lakhbeer Singh, but he could not take
the statement because injured PW10 Lakhbeer Singh was in
emergency and as per doctor, he was not in a condition to speak. PW9
R.B. Chamola, Investigating Officer had taken certain X-ray reports,
injury reports, which are Exs. A4, A5 and A6 alongwith the X-ray
plates. He did not deeply interrogate PW6 Dr. Ajay Gupta, who had
operated upon the injured PW10 Lakhbeer Singh had extracted a
metal piece from his person. It was expected of PW9 R.B. Chamola to
get that metal piece into custody and send it also for forensic
examination alongwith licensed revolver of the appellant. These are
lapses in the investigation. But, can it be fatal to the prosecution?
23
45. It is not a case of only ocular evidence. There is evidence
of injured witness, eyewitnesses and medical evidence. PW5 Dr. S.C.
Srivastava and PW6 Dr. Ajay Gupta have stated about the injuries,
which they found on the person of PW10 Lakhbeer Singh. They have
stated about the nature of injuries etc. There are X-ray plates on
record, which have been taken into custody by PW9 R.B. Chamola
from Lokpriya Hospital, Meerut. Therefore, admittedly, there are
lapses in the investigation. But, under the facts and circumstances of
instant case, merely based on those lapses, the prosecution case does
not get doubtful.
46. On behalf of the appellant, it is argued that the
registration number of tractor number is varied according to the
witnesses. This is true as according to PW1 Sardar Sohan Singh, the
registration number of the tractor was UP-0209446 (statement of
PW1, page 1 bottom three lines). PW3 Smt. Surendra Kaur has stated
that she does not remember the registration number of the tractor
nd
(statement of PW3 Smt. Surendra Kaur page 2, 2 para line 1). PW4
Gurjant Singh has stated that the registration number of the tractor
was 2951 model 265 DY Mahindra (statement of PW4 Gurjant Singh,
page 1 bottom lines) The recovery memo of the tractor is Ex. A11. It
records that tractor is Mahindra 265 DY, as stated by PW4 Gurjant
Singh. It is admitted case of the appellant also that he was ploughing
with tractor in the fields when the incident took place. There was a
tractor, which was taken into custody by the Investigating Officer. If
there is variation in the registration number of the tractor, in the
statements of the witnesses, it is, in fact, immaterial. The proof
beyond reasonable doubt cannot be stretched to any fact, which is
admitted.
24
47. Learned counsel for the appellant had also argued that
the conviction is based on mere cross FIR. Undoubtedly, on mere
cross FIR conviction cannot be held. The impugned judgment runs in
29 pages. A bare perusal of it reveals that in the impugned judgment,
discussion is made on the evidence of the witnesses, medical
evidence, arguments and it is, thereafter, conviction was recorded.
The court is further examining the validity of the impugned judgment.
48. One of the points that has been very vehemently argued
on behalf of the appellant is that PW1 Sardar Sohan Singh has not
proved that he is owner of the plot No. 801. Statements of various
witnesses have been referred to on behalf of the appellant which have
been referred hereinabove.
49. What was suggested impliedly is that the appellant was
owner of the field and when he was obstructed, in his self defence, he
opened fire. That stage would come, when prosecution proves its case.
It is true that witnesses have been cross examined extensively with
regard to plot nos. 801, 802, 803, 804 etc. The prosecution was not
required to prove the ownership of any field. The place of incident is
admitted. The incident to the extent is admitted that the appellant
opened fire, which hit PW10 Lakhbeer Singh. According to the
prosecution, it was an initiation of the firing by the appellant,
whereas, according to the appellant, it was fired in his self defence.
50. It is also argued that the kind of injuries, which PW10
Lakhbeer Singh sustained, could not have been sustained by him
from a distance as suggested by the prosecution. According to PW5
Dr. S.C. Srivastava, when he examined PW10 Lakhbeer Singh on
04.07.1999 at 08:15 a.m., the wounds had blackening, tattooing and
25
singeing, which means it was fired from close range. PW1 Sardar
Sohan Singh, in his statement recorded at Page 4 has stated that the
appellant fired from a distance of 15 feet, whereas, according to the
injured PW10 Lakhbeer Singh, the fire was made from a distance of 3-
4 feet (PW10 statement page 6). What is important is that PW10
Lakhbeer Singh has also stated that the fire was made from north-
eastern side. The site plan is further corroborated by the statement of
the witnesses. PW2 Devendra Singh reached at the spot soon after the
incident. He states that the injured was on the ground and the tractor
was on his west side 8 to 10 steps away. In the site plan Ex. A9, the
location of the injured and tractor is shown. Similarly, the tractor is
on the west side of the injured, though it was at a distance of 15 feet.
It corroborates the prosecution case.
51. PW4 Gurjant Singh in his cross examination at page 1
states that the blood stained soil was taken from a distance of 15
steps of the tractor on eastern side. It exactly matches with Ex.A9, the
site plan. It records that there was some blood, where the injured was
lying and it is 15 feet on eastern side of the tractor. As stated, PW10
Lakhbeer Singh has stated that he was fired from north-eastern side.
In the site plan, Ex. A9 the place of firing is shown towards north of
the injured. It also corroborates in the material particulars, the site
plan Ex. A9. The distance between the appellant and injured PW10
Lakhbeer Singh is shown as 8 feet in the site plan, Ex. A9. Definitely,
if a person is standing at a distance of 8 feet and he extends his
hands to open the fire, the injuries would be sustained in the same
manner in which PW10 Lakhbeer Singh sustained, as noted by PW5
Dr. S.C. Srivastava, in his initial examination report Ex. A2.
26
Therefore, the medical examination report definitely corroborates the
prosecution case.
52. PW10 Lakhbeer Singh has stated that the appellant
opened fire at him, due to which, he became unconscious. PW1
Sardar Sohan Singh, PW2 and PW3 have supported his statement.
PW1 Sardar Sohan Singh has stated that after injury PW10 Lakhbeer
Singh became serious, therefore, he was taken to Meerut Hospital, as
advised by the doctor.
53. It is argued that under such circumstances, the injured
could not have been taken to Meerut. This argument has no force at
all. PW6 Dr. Ajay Gupta was working in the Lokpriya Hospital Meerut
on 04.07.1999. He has categorically stated as to how the injuries were
detected on the person of PW10 Lakhbeer Singh. He has stated that
the bone in skull was fractured and it had gone into the brain. There
was blood clotting and swelling and a metal piece was detected on the
th
6 bone of neck. He proved the report prepared by him.
54. PW9 R.B. Chamola, the Investigating Officer, visited the
Lokpriya Hospital Meerut to take statement of PW10 Lakhbeer Singh,
which he could not take, as according to him, the injured was not in a
condition to speak and he was admitted in emergency. But, according
to him, he had taken medical report, X-ray reports etc. into custody.
Therefore, the statement of PW6 Dr. Ajay Gupta, also corroborates
and supports the prosecution case. Injured was serious. If there was
no referral slip proved by the prosecution, it does not doubt the
prosecution case.
27
55. There is another lapse in the investigation. PW6 Dr. Ajay
Gupta had operated PW10 Lakhbeer Singh in Lokpriya Hospital,
Meerut and had detected a metal piece from his neck, which he
proved in the court as Material Ex. 2. The Investigating Officer could
have taken it into custody during investigation and could have got it
examined forensically. It has not been done. It is true that after a long
time, this piece of bullet was produced in the court on 09.12.2005.
But, this fact does not create any doubt in the credibility of the
testimony of PW6 Dr. Ajay Gupta. The statements of PW5 Dr. S.C.
Srivastava, PW 6 Dr. Ajay Gupta and PW10 Lakhbeer Singh are much
corroborative to each other. The eyewitness account of PW1 Sardar
Sohan Singh and PW3 Smt. Surendra Kaur also supports it. The
statement of PW2 Devendra Singh, who reached at the spot soon after
the incident, further corroborates it.
56. In view of the foregoing discussion, this Court is of the
view that, in fact, the prosecution has been able to prove the charge
against the appellant beyond reasonable doubt.
57. An argument has been raised that on the same evidence
Jiya Lal has been acquitted. Hence, the appellant may not be
convicted. Reference has been made to the judgment in the case of
Ram Singh ( supra ). The Court has already discussed the facts in the
case of Ram Singh ( supra ). There, the Hon’ble Supreme Court has
found glaring inconsistencies in the prosecution version and held
that if same and similar role is assigned to two accused on identical
evidence, one acquittal and other’s conviction cannot be held.
58. Instant is a different case. Insofar as, the appellant is
concerned, the evidence is conclusive. It is proved beyond reasonable
28
doubt that on 04.07.1999 at 08:00 a.m., in an agricultural field, the
appellant opened fire which hit PW10 Lakhbeer Singh due to which he
became seriously injured and he was to be operated upon. The
impugned judgment makes discussion with regard to Jiya Lal. The
role of Jiya Lal is not identical. He was assigned the role of catching
hold. The impugned judgment takes note of the fact that with regard
to Jiya Lal, there are inconsistencies in the statement of witnesses
PW1 Sardar Sohan Singh had enmity and litigation with Jiya Lal,
therefore, he was acquitted (para 79 of the impugned judgment). A
distinction in the evidence has been made while acquitting Jiya Lal.
59. In the instant case, identical role has not been assigned
to the appellant and Jiya Lal. The prosecution case against the
appellant has been proved beyond reasonable doubt. Therefore, this
Court is of the considered view that merely because Jiya Lal has been
acquitted, the appellant does not deserve any acquittal.
60. On behalf of the appellant, it is argued that, in fact, the
appellant was first fired and in his self defence he opened fire. To
establish the self defence, nothing material has been adduced by the
appellant. Along with the list dated 08.11.2012, certain documents
have been filed, which includes statement of PW5 Dr. S.C. Srivastava
and PW6 Head Constable 96 Vijendra Singh recorded in Sessions
Trial No. 427 of 2007 which according to learned counsel for the
parties, is an admittedly a cross case, based on FIR No. 283A /1999,
Police Station, Jwalapur, District Haridwar. There is a presumption
with regard to documents produced as record of evidence under
Section 80 of the Evidence Act, 1872, which reads as follows:-
“80, Presumption as to documents produced as record of
evidence.- Whenever any document is produced before any Court,
purporting to be a record or memorandum of the evidence, or of any
29
part of the evidence, given by a witness in a judicial proceeding or
before any officer authorized by law to take such evidence, or to be a
statement or confession by any prisoner or accused take such
evidence, or to be a statement or confession by any prisoner or
accused person, taken in accordance with law, and purporting to be
signed by any Judge or Magistrate, or by any such officer as
aforesaid, the Court shall presume-
That the document is genuine; that any statements as to the
circumstances under which it was taken, purporting to be made by
the person signing it, are true, and that such evidence, statement or
confession was duly taken.”
61. Insofar as, in the statement of PW5 Dr. S.C. Srivastava
recorded in Sessions Trial No. 427 of 2007 is considered, in his last
line of his examination, he has stated that he cannot say as to
whether the injury on the appellant was self inflicted or caused by
some other person. PW6 Head Constable 96 Vijendra Singh in
Sessions Trial No. 427 of 2007 stated that the FIR authored by the
appellant was lodged at 10:40 a.m. on 04.07.1999.
62. Right to private defence has not been proved. What is
more important is that in the instant case, multiple suggestions have
been given on behalf of the appellant that he opened fire in his
defence. PW1 Sardar Sohan Singh was suggested in page 5 of his
statement that the appellant opened fire in his defence, to which this
witness denied. PW3 Smt. Surendra Kaur was also suggested that the
appellant opened fire from his licensed revolver in his defence. This
witness also denied her suggestion. PW9 R.B. Chamola, who is the
Investigating Officer has been suggested that the appellant had told
this witness, that he opened fire in his self defence. What is more
important is that PW10 Lakhbeer Singh was suggested that the
appellant opened fire with his licensed revolver which hit this witness.
30
63. This Court had independently formed an opinion based
on prosecution evidence that the prosecution has been able to prove
its beyond reasonable doubt.
64. In view of the law laid down by the Hon’ble Supreme
Court in the case of Balu Sudam Khalde (supra), the suggestion also
forms part of evidence and the suggestions that have been given on
behalf of the appellant to the witnesses, further support the
prosecution case.
65. An argument has been made that the suggestions given
on behalf of the appellant to the witnesses have not been put to the
appellant under Section 313 of the Code, therefore, they cannot be
read into evidence.
66. It is true that each incriminating circumstance has to be
put to the appellant in a criminal trial and unless such evidence is
put, it cannot be read into evidence. The prosecution case is that on
04.07.1999 at 08:00 a.m. the appellant opened fire on PW10
Lakhbeer Singh, which hit him. This has been put to the appellant.
The suggestion has been given by the appellant himself. Therefore, if
specifically the suggestions have not been put to the appellant, it
cannot be said that such suggestion cannot be read into evidence.
Even otherwise, as stated, the conviction cannot be recorded merely
based on suggestion given by the accused in the case. The
prosecution has to prove its case beyond reasonable doubt and that is
what has been done in the instant case.
67. In view of the foregoing discussion, we are of the view that
learned court below has rightly convicted and sentenced the appellant
31
of the charge under Section 307 IPC. There is no reason to make any
interference in the impugned judgment and order. Accordingly, the
appeal deserves to be dismissed.
68. The appeal is dismissed.
69. The appellant Ved Prakash @ Pahalwaan is on bail. His
bail is cancelled and sureties are discharged. Let the appellant be
taken into custody forthwith to serve out the sentence as imposed by
the trial court.
70. Let a copy of this judgment along with Lower Court
Record be forwarded to the court concerned for compliance.
(Siddhartha Sah J.) (Ravindra Maithani, J.)
02.09.2026
Jitendra