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2022 DIGILAW 216 (UTT)

State of Uttarakhand v. Sanjay Shah

2022-07-21

ALOK KUMAR VERMA, SANJAYA KUMAR MISHRA

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JUDGMENT : Alok Kumar Verma, J. These two Government Appeals are directed against a common judgment dated 10.10.2012, passed by the learned Additional Sessions Judge, Almora in Sessions Trial No.27 of 2011, “State vs. Sanjay Shah and Another”, whereby, the learned trial court has acquitted the respondents-accused persons from the charge of Section 302 read with Section 34 of IPC, and, in Sessions Trial No.5 of 2012, “State vs. Sanjay Shah”, whereby, the respondent has been acquitted from the offence punishable under Section 30 of the Arms Act, 1959. These two Government Appeals are connected appeals, therefore, these two Government Appeals are being decided by this common judgment. 2. Briefly stated the prosecution story as it emerges from re-appreciation of the evidence on record is that, on 07.06.2011, the marriage of the brother of the deceased Dinesh Rawat’s wife was attended by the deceased Dinesh Rawat, his friends the deceased Ram Singh Bhandari, witness Data Ram, Constable (PW4) and witness Yashpal Singh (PW5). Dinesh Rawat’s father Narayan Singh Rawat (PW1) was also present in the said marriage. Dinesh Rawat, Ram Singh Bhandari, Data Ram and Yashpal Singh had come back from marriage ceremony at around 3.45 p.m. They had taken alcohol and their food. At around 10 p.m., Data Ram (PW4) and Yashpal Singh (PW5) had left for Ranikhet along with Dinesh Rawat in a new Maruti Wagon-R car of Dinesh Rawat. While Ram Singh Bhandari had left for Ranikhet by motorcycle. When Ram Singh Bhandari was on his way to Ranikhet, his motorcycle slipped. Ram Singh Bhandari received injuries in that accident, due to which he sat in the car of Dinesh Rawat. 3. On 08.06.2011 at around 12 O’ clock in the night, Narayan Singh Rawat, father of the deceased Dinesh Rawat, was informed by the village Pradhan that two dead bodies were found in the car of Dinesh Rawat. Narayan Singh Rawat reached the spot at around 3 O’ clock and saw that the windows of the car were closed and the dead body of Ram Singh Bhandari was lying on the front seat and the dead body of Dinesh Rawat was lying on the back seat of the car. 4. On 09.06.2011, inquest proceedings were conducted. Patwari Bhupal Giri Goswami (PW6) prepared the inquest report (Ext. Ka.5). 5. 4. On 09.06.2011, inquest proceedings were conducted. Patwari Bhupal Giri Goswami (PW6) prepared the inquest report (Ext. Ka.5). 5. On the same day i.e. on 09.06.2011, the postmortem examination of dead bodies of Ram Singh Bhandari, aged about 27 years, and, of Dinesh Rawat, aged about 30 years, were conducted by Dr. Deep Prakash (PW13) at 02.10 p.m. and 04.00 p.m. respectively. 6. On 09.06.2011 at 05.00 p.m., an FIR (Ext. Ka.25) was registered against the unknown persons on the basis of a written report (Ext. Ka.1) of Narayan Singh Rawat (PW1). 7. The blood-stained clothes of the deceased persons were taken by the police. 8. Statements of Data Ram (PW4) (Ext.Ka.3) and Yashpal Singh (PW5) (Ext. Ka.4) under Section 164 of the Code of Criminal Procedure, 1973 were recorded on 11.07.2011 and 18.07.2011 respectively. According to the statements of Data Ram and Yashpal Singh, under Section 164 of the Code of Criminal Procedure, they had seen the incident in the light of the motorcycle, but, the injured Dinesh Rawat had told them that the incident was caused by Sanjay Shah and Yogesh Mainali. 9. On an information of a secret informer, the accused persons, namely, Sanjay Shah and Vikas alias Yogesh Mainali were arrested on 13.07.2011. At the time of their arrest, one revolver 0.32 bore (material Ext.14) and a license of the said revolver were recovered from the possession of the accused Sanjay Shah. He confessed his guilt and stated that he and Vikas alias Yogesh Mainali had murdered Dinesh Rawat and Ram Singh Bhandari with that revolver. A recovery memo (Ext. Ka.28) was prepared by Inspector Rami Ram (PW11). According to the recovery memo, in spite of an endeavour, no independent witness could be secured. A site plan (Ext. Ka.36) was prepared by Inspector Rami Ram. The blood-stained clothes and recovered revolver were sent to the Forensic Science Laboratory. After completion of the investigation, charge-sheet (Ext. Ka.41) was filed by Inspector Rami Ram (PW11) against both the respondents-accused persons, and, after taking sanction from District Magistrate, Sub-Inspector Ballabh Bhatt (PW12) had filed a charge-sheet (Ext. Ka.44) under Section 30 of the Arms Act, 1959 against the accused Sanjay Shah. 10. The accused persons denied the charge and claimed to be tried. 11. In order to bring home the guilt of the accused persons, the prosecution examined as many as thirteen witnesses. 12. Ka.44) under Section 30 of the Arms Act, 1959 against the accused Sanjay Shah. 10. The accused persons denied the charge and claimed to be tried. 11. In order to bring home the guilt of the accused persons, the prosecution examined as many as thirteen witnesses. 12. Statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, wherein they denied the entire evidence of the prosecution. According to the accused Sanjay Shah, his licensed revolver was taken by the police after calling him to the office of Superintendent of Police, Almora. 13. The accused persons have not adduced any defense evidence. 14. The learned trial court heard arguments, appreciated the evidence, and held that the prosecution has failed to prove its case against the accused persons beyond all reasonable doubt. 15. Heard the learned counsel for both the parties. 16. Mr. J.S. Virk, the learned Deputy Advocate General for the State, submitted that the learned trial court has completely overlooked the glairing facts of the case according to which, the involvement of the accused persons has been proved; the evidence of Data Ram (PW4) and Yashpal Singh (PW5) are trustworthy; the accused-respondent Sanjay Shah had confessed his guilt and a licensed revolver, used in the murder, was recovered from the possession of the accused Sanjay Shah. He further submitted that the guilt of the respondent-accused persons are fully proved. Therefore, the judgment of acquittal is not justified in the eyes of law. 17. On the other hand, Mr. Aditya Singh, the learned counsel for the respondents supported the impugned judgment. 18. The law is well settled that the judgment of acquittal strengthen the presumption of the innocence of the accused. It is equally the duty of the Court to see that the guilty do not escape punishment. Therefore, we have carefully assessed the evidence adduced by the prosecution. 19. The learned counsel appearing for the State relied upon following evidence :- (i) That the respondent-accused Sanjay Shah had admitted his guilt. (ii) That a revolver, which was used in crime, was recovered from the possession of the respondent-accused Sanjay Shah. (iii) That the evidence of Data Ram (PW4) and Yash Pal Singh (PW5) are sufficient to prove the guilt of the respondents-accused persons. 20. (ii) That a revolver, which was used in crime, was recovered from the possession of the respondent-accused Sanjay Shah. (iii) That the evidence of Data Ram (PW4) and Yash Pal Singh (PW5) are sufficient to prove the guilt of the respondents-accused persons. 20. Section 25 of the Indian Evidence Act is broadly worded and it excludes from evidence a confession made by the accused to a police officer under any circumstances and a confession made by a person while he was in the custody of the police is also inadmissible under Section 26 of the Indian Evidence Act unless made in the immediate presence of a Magistrate. 21. Now, the crucial question which arises for consideration is that whether the death was caused by the revolver (material Ext.14). 22. According to the chemical examination report dated 27.08.2011 of the Forensic Science Laboratory Uttarakhand, firing discharge residues were detected in the barrel of the 0.32 bore revolver, therefore, conclusion was that 0.32 bore revolver had been fired through. 23. According to the prosecution, bullet was not recovered/seized. Therefore, it is not proved that the incident was caused by the firearm which was sent for examination. The record reveals that blood-stained clothes of the deceased persons were sent for examination. But, this fact alone would not lead to the conclusion that the respondents had committed the crime. Therefore, the prosecution has failed to prove by leading cogent evidence that in fact, the respondent Sanjay Shah fired from the firearm (material Ext.14). 24. Mr. Aditya Singh, the learned counsel for the respondents argued that the evidence of Data Ram (PW4) and Yash Pal Singh (PW5), on which the prosecution relied on for holding the respondents guilty, is not reliable because the statements of the Data Ram and Yash Pal Singh were recorded under Section 164 of the Code of Criminal Procedure for the first time on 11.07.2011 and 18.07.2011 respectively more than one month after the incident. 25. According to Inspector Rami Ram (PW11), statement of Data Ram under Section 161 of the Code of Criminal Procedure was recorded on 07.07.2011. The Investigating Officer did not assign any reason as to why so much delay was caused in recording their statements during the investigation. 26. 25. According to Inspector Rami Ram (PW11), statement of Data Ram under Section 161 of the Code of Criminal Procedure was recorded on 07.07.2011. The Investigating Officer did not assign any reason as to why so much delay was caused in recording their statements during the investigation. 26. According to the statements of Data Ram and Yash Pal Singh, they had seen the incident in the light of the motorcycle, but, the injured Dinesh Rawat had told them that the incident was caused by Sanjay Shah and Yogesh Mainali. It is not the case of the prosecution that test identification parade was conducted. Whereas, Rami Ram (PW11) has given his statement that Narayan Singh Rawat, informant, in his statement under Section 161 of the Code of Criminal Procedure had raised suspicion on Data Ram and Yash Pal Singh, who were with the deceased persons at the time of the incident. 27. PW-4 Data Ram, Constable, has stated in his evidence that he had reported this incident to his Lieutenant Colonel, but, he has not given any such statement under Section 161 of the Code of Criminal Procedure. 28. PW-5 Yash Pal Singh has stated in his evidence that he had not reported the incident to any one earlier as he was panicked. 29. In Jagjit Singh alias Jagga vs. State of Punjab, (2005) 3 SCC 689 and State of Andhra Pradesh vs. S. Swarnalatha and Others, (2009) 8 SCC 383 , the Hon’ble Supreme Court held that the delay in examination of a witness in the course of investigation if not properly explained creates a serious doubt about the reliability of the evidence of the witness. 30. In the present matter, the prosecution has not properly explained as to why so much delay was caused in recording the statements of Data Ram and Yash Pal Singh during the investigation. 31. Although, according to Dr. Deep Prakash (PW13), firearm injuries were found on the dead bodies of the deceased persons and the death of the deceased persons were homicide, the prosecution has to prove that the death of the deceased persons were caused by the respondents and in all human probabilities, the act must have been done by the respondents only. It also becomes clear, from the perusal of the record, that no motive is attributed to the respondents. 32. It also becomes clear, from the perusal of the record, that no motive is attributed to the respondents. 32. In Bhagwan Singh and Others vs. State of M.P., (2002) 4 SCC 85 , the Hon’ble Supreme Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other of his innocence, the view which is favorable to the accused should be adopted. 33. It is also a basic rule of the criminal jurisprudence that suspicion, however, strong cannot take place of proof. In Sujit Biswas vs. State of Assam, AIR 2013 SC 3817 , the Hon’ble Supreme Court held that suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that “may be” proved, and something that “will be proved”. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be true” and “must be true”, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. 34. On a detailed examination and scrutiny of the evidence of the prosecution, this Court upholds the view taken by the learned trial court. In our considered view, the prosecution has failed to establish the commission of alleged offence by the respondents-accused persons beyond all reasonable doubt. They deserve benefit of doubt. We are, therefore, in complete agreement with the view taken by the learned trial court and see no reason to interfere with the judgment and order impugned herein. 35. As a result, both the appeals, i.e. Government Appeal No.9 of 2013 and Government Appeal No.11 of 2013, are liable to be dismissed. These two appeals are dismissed accordingly.