RAVI MANDAL versus STATE OF UTTARAKHAND

[2023] 7 S.C.R. 1

RAVI MANDAL

STATE OF UTTARAKHAND

(Criminal Appeal No. 511 of 2011)

MAY 18, 2023

[HRISHIKESH ROY AND MANOJ MISRA, JJ.]

Penal Code, 1860 – ss. 302, 34 and 201 – Arms Act, 1959 –ss. 4 and 25 – Acquittal under – FIR lodged by PW-1 (father ofdeceased) after founding dead body of his son at 0730 hours on01.11.2001 in forest, alleging that deceased was with ‘R’ and ‘G’on 31.10.2001 at about 2100 hours – Later, he replaced ‘G’ with‘S’ in written information – Both accused (R and S) were convictedby the Trial Court u/s.302 r/w. s.34, s.201 of IPC and ss. 4/25 of theArms Act – Trial Court relied on testimonies of PW-2 and PW-5 toconclude that deceased was last seen alive in the company of theaccused persons – Trial Court also noticed that as per FSL reportthe empty cartridge recovered from the spot was fired from the samepistol which was recovered from ‘S’ – High Court confirmed theconviction – On appeal, held: According to the testimony of policewitnesses, it was the informant who gave information to the policeabout his son’s dead body – Whereas, according to PW-1 the policeinformed him that his son’s dead body has been found in the forest– In FIR there is no disclosure as to how the body was found in theforest – FIR did not name any witness who had seen the deceasedwith accused persons – Further, ‘S’ was not named as accused inFIR at the first instance and was only arrayed at later stage –Explanation offered by PW-2 is delayed disclosure – Similarly,explanation offered by PW-5 for his presence at the spot at the oddhours appears false – There is contradiction in PW-5’s statementmade u/s. 161 and in his deposition before the Court as to presenceof ‘G’ with deceased – Therefore, the testimony of PW-2 and PW-5does not inspire confidence – Forensic report/ballistic report werenot even put to ‘S’, while recording his statement u/s. 313 Cr.P.C. –In the case at hand, the evidence was not confidence inspiring asto uphold the conviction of the accused-appellants – Thus, impugnedjudgments and orders of the Trial Court set aside.

AWitnesses – Chance witness – Reliability of – Held: The lawis settled, which is, evidence of chance witness requires verycautious and close scrutiny and chance witness must adequatelyexplain his presence at the place of occurrence – Deposition ofchance witness whose presence at the place of incident remainsdoubtful should be discarded.B

Allowing the appeals, the Court

HELD: 1. The striking feature of the case is that the FIRof the case was lodged at 0730 Hours on 01.11.2001 after thedead body of informant’s son was found in forest. According toCthe testimony of police witnesses, it was the informant who gaveinformation to the police about his son’s dead body being foundin the forest and thereafter, on the basis of the FIR, investigationcommenced. Whereas, according to PW-1 the police informedhim that his son’s dead body has been found in the forest andthereafter, he went to the spot, brought the body to the policeDstation and then lodged the report. This cleavage in the testimonyof prosecution witnesses is important because it would throw aquestion as to whether the prosecution case is based oninformant’s own knowledge and information or on suggestions/guess work, may be at the instance of the police. [Para 19][18-H;E19-A-C]2. Prosecution case is primarily based on the evidence ofthe deceased being last seen alive with the two accused near theplace of occurrence on or about the probable time of occurrence.Such evidence is forthcoming from two witnesses, namely, PW-2Fand PW-5. Insofar as PW-2 is concerned, admittedly, he is notlisted as witness in the police report/charge sheet. He gave hisstatement to the police on an affidavit for the first time on18.02.2002, that is, the date when the police report was prepared.This implies that he remained silent for as long as three and ahalf months.Hence, this Court is to examine whether there wasGa cogent explanation offered by PW-2. In the instant case, theonly explanation offered by PW-2 for his three and half month’ssilence is that he felt threatened. With regard to his threatperception, PW-2 stated that in the night of the incident when hewitnessed ‘R’ and ‘S’ emerging from the forest, soon after theHincident, he noticed their hands and clothes blood stained. On

spotting PW-2, those two accused threatened him by saying thatif he tells to anyone about what he has seen, he would meet thesame fate. PW-2 stated that with the arrest of the two accused hisfear vanished, therefore, he is now appearing as witness. If thiswas the reason for him not to make the disclosure earlier, thereshould have been prompt disclosure by him once the accusedwere arrested. Notably, the two accused were arrested on24.11.2001, yet, till 18.2.2002 no disclosure was made by him.Therefore, the explanation offered by him for the delay in makingdisclosure is not confidence inspiring. [Paras 22-24[[20-E, G; 21-G-H; 22-A-B]

3. Further, the presence of PW-2 at the spot does not appearnatural, particularly, at that odd hour of the night. To explain hispresence at the scene of crime, PW-2 stated that his parents stayat another place, and therefore, to meet them he visited themthat fateful night and on way return he could witness the incident.During cross examination, PW-2 stated that he usually takesdinner at 2100 Hours with his family; and that he used to visit hisparents at least once week. According to PW2, that fateful nighthe left his house to visit his parents after having dinner in hisown house and on way return, at 0030 Hours he witnessed theincident. This explanation is not confidence inspiring, particularly,because his parents have not been interrogated or examined tocorroborate PW-2’s visit to their house at that odd hour of thenight. In view of this Court, PW-2 is mere chance witness, whosepresence at the spot, at that hour, is not satisfactorily explainedtherefore, bearing in mind that he kept silent for unusually longi.e., for more than three and half months, his testimony is notworthy of any credit. In view of this Court, the courts below erredby placing reliance on his testimony. [Para 25][22-B-E]

4. As regards the testimony of PW-5, he too, is chancewitness. As to when testimony of chance witness could be relied,the law is settled, which is, that the evidence of chance witnessrequires very cautious and close scrutiny and chance witnessmust adequately explain his presence at the place of occurrence.Deposition of chance witness whose presence at the place ofincident remains doubtful should be discarded. The explanationoffered by PW-5 for his presence at the spot at that odd hour

Aappears false. According to PW-5, he was having an upsetstomach, therefore, while watching night show of movie, toattend to nature’s call, he came out of the cinema hall and, whilehe was easing himself, he got the chance to witness the incident.It be noted that the investigating officer (PW-10) and PW-7, agram vendor in that cinema hall, have deposed that there areBtoilets in the cinema hall where no money is charged for theiruse. This falsifies the explanation of PW-5 that he went out of thecinema hall to ease himself because cinema hall charged moneyfor use of the toilet. Otherwise also, PW-10 in his deposition hadstated that he was not shown the place where PW-5 squatted toCease himself. [Paras 26-27][22-F-H; 23-A-C]

5. Besides that, PW-5 is not consistent because, in hisstatement under section 161 Cr.P.C., with which he wasconfronted during the course of his deposition, he had indicted‘G’ along with two accused persons by stating that all three wereDpresent with the deceased but, during his deposition in Court,he stated that ‘G’ was not present. He is also not consistent withregard to the place where his statement was recorded. At oneplace he states that it was recorded at the police station and atanother place he states that it was recorded at his shop. [Para28][23-C-D]E

6. Another important feature of the case is that, accordingto PW-10, PW-5’s statement was recorded by him on 01.11.2001at PW5’s house. What was the reason for the police to go to theresidence of PW-5 to record his statement is not disclosed bythe prosecution. This Court finds it inexplicable as to why policeFwould go to PW-5’s residence to record his statement when theFIR makes no disclosure about PW-5’s presence at the scene ofcrime or with regard to his knowledge about the incident. Allthese circumstances give rise to lingering doubt as to whether,on discovery of the dead body in the forest, the accused wereGimplicated at the instance of the police on suspicion rather thanon information received from persons conversant with the facts.[Para 29][23-D-F]

7. Upon evaluation of the testimony of PW-2 and PW-5carefully and with due caution, as is required in the facts of theHcase, their testimony does not inspire our confidence as to sustain

the conviction. Unfortunately, the courts below accepted the sameas gospel truth, without testing it on the anvil of settled legalprinciples, thereby resulting in grave miscarriage of justice. ThisCourt, therefore, conclude that the prosecution has failed to provebeyond reasonable doubt that the deceased was last seen alivein the company of the accused near the spot at the relevant time.[Para 30][23-G-H; 24-A]

8. In so far as recovery of the country made pistol and knifefrom the person of the accused at the time of their arrest isconcerned, the same does not inspire our confidence for thefollowing reasons – According to PW-10, while he was lookingout for the suspects/accused, received an information from aninformer that the accused were to come to specified place at1600 Hours. But, there is no record of receipt of the saidinformation even though it is stated to have been received fewhours before the action. Assuming that such information wasreceived, there appears no effort to rope in public witness eventhough locality, as per statement of PW-10, was just 200 metersaway from that spot. Lastly, what is most interesting is that theinvestigating officer, who investigated the case relating to theoffence punishable under the Arms Act, prepared the site plan ofthe place of arrest/recovery on 06.12.2001 even though arrestwas allegedly affected on 24.11.2001, which, in the facts of thecase, would suggest that it was an exercise to complete theformality. Moreover, the site plan does not disclose the placewhere the Jeep was hidden in the forest to ambush the accused.Having regard to the circumstances noted above, including thefact that ‘S’ was not named as suspect in the FIR and his namecropped up later in the statement of PW-5, whose statement wasrecorded on the same day at his residence, even though, he wasnot cited as witness in the FIR, bearing in mind the statementof PW-1 that the police made him to submit the second reportindicting ‘S’, this Court is of the view that the police had shownextraordinary interest in implicating ‘S’ and therefore, for all thereasons above, the alleged recovery of gun and knife shown fromthe appellants does not inspire our confidence. In consideredview of this Court, it would be unsafe to rely on such recovery tosustain the conviction. Insofar as forensic report/ballistic report

Ais concerned, the same has not even been put to ‘S’, from whomthe country made pistol was seized, while recording his statementunder section 313 of Cr.P.C., therefore, in any event, it wouldhave to be eschewed from consideration. [Paras 31-32][24-B-G]

9. On putting the prosecution evidence to strict scrutinyBand testing the same on the anvil of settled legal principles asdiscussed above, this Court finds the evidence not confidenceinspiring as to uphold the conviction of the accused appellants.The courts below have failed to properly evaluate and test theevidence by applying the correct legal principles. In suchcircumstances, the judgments of the courts below are liable toCbe set aside. The appellants are acquitted of all the charges forwhich they have been tried and convicted. [Para 33][25-A-C]

Kali Ram v. State of Himachal Pradesh (1973) 2 SCC808 : [1974] 1 SCR 722;Rajesh Yadav & Another v.State of Uttar Pradesh(2022) 12 SCC 200;JarnailDSingh & Others v. State of Punjab (2009) 9 SCC 719 :[2009] 13 SCR 774 – referred to.

Case Law Reference

FFrom the Judgment and Order dated 07.04.2010 of the High Courtof Uttaranchal at Nainital in CRLA No.54 of 2004.

With

Criminal Appeal No.2345 of 2011.

GGopal Jha, Adv. (Amicus Curiae), Ms. Ankita Gautam, Dr. A.K.Gautam, Ravi Mehrotra, Nitin Juyal, Ashok Mathur, Sanket, Ms. BabitaSant, Advs. for the Appellant.

Jatinder Kumar Bhatia, Krishnam Mishra, Param Kumar Mishra,Rajeev Kumar Dubey, Ashiwan Mishra, Kamlendra Mishra, Advs. forthe Respondent.H

The Judgment of the Court was delivered by

MANOJ MISRA, J.

1. These two appeals are against the judgment and order of theHigh Court of Uttarakhand at Nainital (for short “the High Court”),dated 07.04.2010, dismissing Criminal Appeals Nos.54 and 59 of 2004filed against the judgment and order of Additional Sessions Judge/FastTrack Court Haldwani, Nainital (for short “the Trial Court”) dated28.01.2004, and, thereby, affirming the conviction and sentence awardedto the appellants detailed below: (i) life imprisonment under section 302read 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 inS.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 RaviMandal 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 forest, 150 meterswest of Government Inter College, lodged first information report (FIR)at P.S. Lalkuan, Haldwani, district Nainital at about 7.30 hrs, allegingtherein that, — on 31.10.2001, at about 2100 Hours, the deceased waswith his friends Govind and Ravi Bangali (later identified as Ravi Mandal);Govind, criminal, had been influencing his son to choose wrong path;therefore, he suspects that these persons have killed his son and concealedhis body in the forest. Thereafter, on 10.11.2001, PW-1 gave writteninformation to the police stating that it was not Govind but Shabbir whoalong with Ravi and one Mazhar Khan were with the deceased on thatfateful 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 ofthe two accused, namely, the appellants herein, and disclosed recoveryof 12 bore country made pistol with one live cartridge from Shabbirand knife from Ravi Mandal, giving rise to two separate cases againsteach of the two accused under the Arms Act.

4. On completion of investigation three charge sheets were laidgiving rise to three sessions trials which were connected with each other

[2023] 7 S.C.R.

Aand decided by common judgment, which has been affirmed by theHigh Court.

Prosecution Evidence:

5. To appreciate the arguments advanced in this case, it would beapposite to notice the testimony of the prosecution witnesses in brief.BThe prosecution examined 10 witnesses, the gist of their testimony is asunder:

(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 hisresidence, told him that the deceased, Ravi Bangali andGovind were asking for food and have sent him to fetchfood for them; on that request, PW-1’s wife (Urmila Devi-PW-3) cooked food, packed it and gave it to Babloo, wholeft with the food; next day, he came to know that deadbody of his son was lying in the forest; he then visited theplace, brought the dead body to Lalkuan Police Station andlodged the report; later, when he came to know that Govindwas not with his son, rather it was Shabbir along with otherswho were there, he gave the second report (Ex. Ka-2) tothe police on 10.11.2001. During cross examination, PW-1admitted that there were three or four criminal cases againsthis son (the deceased) wherein, he was on bail.

With regard to the sequence of events on the date oflodging the FIR, PW-1 stated that, — constable with twomen came in the morning to inform him that dead body ofhis son is lying in the forest; on getting the information hewent to that place and brought the body to the police stationto lodge the FIR whereafter, the body was sealed and sentto Haldwani Hospital for autopsy. He also stated that papersrelating to recovery of tiffin box; collection of blood-stainedearth etc. were prepared at the police station and he signedthose papers at the police station itself. PW-1 also clarifiedthat the second report (i.e. Ex. Ka-2) was dictated by theSub-Inspector at the police station and he wrote whateverwas told to him.

At the fag end of his cross-examination, PW-1 statedthat he had informed the Sub-Inspector regarding financialtransactions with Govind and also about Govind notrefunding the money, which gave rise to enmity.

(ii) PW-2 - Chandan Singh

He deposed that, — (a) he knew Shabbir Ahmad andRavi Mandal; (b) they had come to his shop with thedeceased at about 1900 Hours on 31.10.2001 and from therethey proceeded towards the cinema hall; (c) later, in thenight of 31.10.2001/ 01.11.2001, at about 0030 Hours, hesaw the accused-appellants emerging from the forest andwalking fast; (d) at that time, hands of Shabbir were blood-stained and Ravi’s clothes were also having blood stains,(e) seeing PW-2, they got nervous, Shabbir threatened PW-2 by saying that if PW-2 discloses what he has seen to anyone, he would meet the same fate as Chhotu (thedeceased); (f) next day morning, PW-2 learnt that deadbody of Chhotu has been found in that forest.

To show the reason for his presence there, at that oddhour of the night, PW-2 stated that, — his parents have aseparate house at Khatta, where he goes at least once aweek; that night, after having dinner, while returning fromhis 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 shopis run from room in his house; it remains open from 0500Hours till 2300 Hours; his house comprises of 3 roomswhere he resides with his wife and five sons; the usualtime of his dinner is 2100 Hours.

suggestion was put to PW-2 that mother of Ravi (oneof the appellants) is PW-2’s neighbour on whose land PW-2 had constructed his shop. This suggestion was denied byPW-2.

With regard to the delay in giving information to thepolice, PW-2 stated that he was petrified by the incidentand when the accused were arrested, he could mustercourage to make his statement. During cross-examination,

PW-2 admitted that he had been arrested under section 60of the Excise Act and is on bail. He feigned ignorance to asuggestion that his bail bonds were arranged by parents ofChhotu.

(iii) PW-3 – Urmila Devi-Mother of the deceased

She proved that on 31.10.2001, Babloo (PW-7), whouse to work at the cinema hall, came to her house to fetchfood for the deceased, consequently, food was cooked andsupplied by her.

During cross examination, she denied being surety forthe bail of Chandan (PW-2). However, she admitted thatChandan used to visit her house.

(iv) PW-4 – Smt. Mithilesh (Wife of Govind)

PW-4 did not depose anything specific about the incidentexcept that Shabbir had enmity with her husband and 8 to10 days before the murder of Chhotu, Ravi Bangali andShabbir had called her husband; in consequence, herhusband left, but did not return thereafter; later, she receivedinformation from the police that her husband has been killedand the culprits caught.

During cross examination, she admitted that the policehad come to her house 2-3 days after the murder of Chhotubut, at that time, she had not informed the police that Govindand Chhotu had gone with the accused persons. She alsoadmitted that the police made no enquiry from her and shedid not lodge any complaint in respect of her husband’smurder.

(v) PW-5 – Mahendra Khurana

He stated that, — on 31.10.2001, while he was watchinga night show at the cinema hall, he had to rush out to attendto nature’s call, then he saw Chhotu (the deceased), RaviBangali and Shabbir going towards the forest; 2-3 minuteslater, he heard sound of gunshot and 5-7 minutes later,Ravi Bangali and Shabbir minus Chhotu were noticedrunning and talking to each other that they have settled theiraccount with Chhotu as he had become nuisance for them

on account of his persistent demand for money. PW-5 statedthat he did not disclose this fact to anyone in the night but inthe morning, he came to know that Chhotu has beenmurdered.

During cross examination, he admitted that though toiletfacility is available in the cinema hall but, on charge;therefore, he went out to ease himself. He stated that hisstatement was recorded in the morning, following the nightof the incident; and for that purpose, he was called by theconstable. On being confronted with his previous statementthat he saw Govind, Chhotu, Ravi Bangali and Shabbir goingtowards the forest, PW-5 stated that he had disclosed thename of all, except Govind. He, however, admitted that hedid not disclose to the police the place where he sat thatnight to ease himself.

(vi) PW-6 – Hanuman Prasad

He stated that, — on 31.10.2001 at about mid- nightwhile he was returning from depot no.6, opposite to thecinema hall, he saw three persons, namely, Chhotu, RaviBangali and Shabbir talking to each other and going towardsthe forest; next day in the morning, he came to know thatChhotu has been murdered. He denied having seen Shabbirfiring at the deceased. At this stage, the prosecution declaredhim hostile and sought his cross examination.

During cross examination by the prosecution, he deniedthat he gave statement before the police about Shabbirshooting his companion and Ravi holding his leg.

During cross examination by the defence, he stated thathe had not seen the incident and he had also informed thepolice that he had not seen the incident.

(vii) PW-7 – Babloo

He stated that, — on 31.10.2001, he met Chhotu at thegate of cinema hall; Chhotu asked him to get food for himfrom his residence; at that time, no one was present withChhotu. PW-7 stated that he came to the residence ofChhotu, 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 knowthat Chhotu has been killed. At this stage, the prosecutiondeclared him hostile and sought permission for his crossexamination.

During cross examination by the prosecution, PW-7admitted his signature on paper No.3/15 which was markedEx. Ka-6. He also admitted that he gave statement to thesub-inspector but denied that he saw Chhotu in the companyof 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 cinemahall; the cinema hall had toilets and no money is chargedfor use of those toilets. He also stated that during the courseof investigation of this case, the police had beaten him andhad 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 ofthe deceased was due to shock and haemorrhage as resultof ante mortem gunshot.

(ix)PW-9 – Sub-Inspector Nanhe Lal (Investigating Officer ofthe cases under the Arms Act)

He proved the inquest report (Ex. Ka-7A) and autopsyrelated papers (Ex.K-8 to K-10). He also proved variousstages of investigation of case crime No.756/01, undersection 25 of Arms Act, and case crime No.757/01, undersection 4/25 of Arms Act, as also submission of chargesheet and obtaining of sanction for prosecution under theprovisions of the Arms Act.

During cross examination, PW-9 stated that on06.12.2001 he prepared site plan of the place from wherethe accused were arrested and weapon was recovered.He sought to explain the delay in preparation of the siteplan by stating that he was busy with other matters.

(x)PW-10 – SI Pramod Kumar Shah (Investigating Officer ofthe murder case)

He proved — registration of the FIR; visiting the spotwith PW-9; inspection of the spot; preparation of site plan(Ex.Ka-15); lifting of: blood stained soil/plain soil, vide seizurememo Ex. Ka-4, and one empty 12 bore cartridge from thespot, vide seizure memo Ex.Ka-5 of which PW-1 is one ofthe witnesses; conducting inquest; recording statement of— complainant Man Singh (PW-1), Babloo (PW-7) andMahender Khurana (PW-5); preparation of custody memoof 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 applicationby Man Singh on 10.11.2001; and submission of chargesheet (EX.Ka-16). He also produced material exhibits etc.In addition to the above, he stated that accused Shabbirand Ravi Mandal were absconding, therefore, applicationto draw proceedings under section 82 of the Code ofCriminal Procedure, 1973 (for short “Cr.P.C.”) was moved.Thereafter, on 24.11.2001 at 1530 Hours accused Shabbirand Ravi Mandal were arrested with 12 bore countrymade pistol and knife respectively. He proved the arrestmemo as Ex. Ka-17.PW-10 stated that on 15.01.2002 the country made pistol,empty cartridge recovered from the spot and live cartridgeseized at the time of arrest were sent to Forensic ScienceLaboratory (FSL), Agra for examination and its report hasbeen submitted, as per which, EC-1 (empty cartridge foundnear the dead body) was fired from the pistol which wasrecovered from Shabbir. During cross examination, at theinstance of accused Shabbir, PW-10 stated that, — in theFIR Shabbir was not named; PW-10 reached the place ofoccurrence at about 0800 Hours; the dead body was lyingat the spot; the statement of Man Singh was recorded atthe spot on 01.11.2001; Man Singh had informed him thatChhotu (the deceased) had not been coming home sincelast 10-12 days before the incident, however, no informationregarding Chhotu was given earlier; Mahender Khurana(PW-5) had told that in the night he had seen Govind withRavi, Chhotu and Shabbir going towards the forest; ManSingh on 01.11.2001 had stated that Govind had borrowed

Rs.16,000/- from Chhotu; Man Singh’s (PW-1’s) statementwas recorded thrice; Chandan Singh (PW-2) gave anaffidavit on 18.02.2002, prior to that he did not come; UrmilaDevi, whose statement was recorded on 02.11.2001 at herresidence, did not disclose that PW-2 had seen the accusedpersons; and Mithilesh’s (PW-4’s) statement was recordedtwice, one on 03.11.2001 and the other on 05.12.2001. PW-10 also stated that on their arrest Shabbir and Ravi hadconfessed that before killing Chhotu, they had killed Govind.

PW-10 further stated that statement of MahenderKhurana (PW-5) was recorded on 01.11.2001 at hisresidence; and PW-5 had not disclosed the place where hesat to ease himself that fateful night.

With regard to the sequence of events on the day ofarrest of the two accused, PW-10 stated that, — on24.11.2001, he had received information from an informerthat at 1600 Hours accused persons were to come to theirhouse; the said information was received at about 1430Hours; on receipt of the information, PW-10 and his teamarrived at the spot in their Jeep, which was hidden in theforest at some distance; after 10-15 minutes, PW-10 sawthe accused persons coming and were accordingly arrested.PW-10 accepted that he did not try to rope in any publicwitness because the spot where arrest was effected was200 meters away from the locality. PW-10 also stated thatthe site plan of the place of arrest and recovery was preparedon 06.12.2001 at his instance. PW-10 denied the suggestionsthat, — the dead body was brought by the complainant tothe police station; the second complaint (Ex.Ka-2) was gotwritten at his instance; and the accused were falselyimplicated by preparing false documents while sitting at thepolice station.

PW-10 admitted that, — the deceased had criminalantecedents and had gone to jail many times; MahenderKhurana (PW-5) had not come to him for getting hisstatement recorded, rather PW-10 went to his house torecord his statement; Mahender Khurana’s statement wasrecorded four hours after information was provided by Man

Singh (PW-1) on 01.11.2011; Mahender Khurana in hisstatement had told that Govind was also present.

Statement under section 313 of the Criminal ProcedureCode, 1973 (Cr.P.C.):-

6. In his statement recorded under section 313 Cr.P.C., RaviMandal denied the incriminating circumstances put to him. He also deniedrecovery of the knife and claimed that nothing incriminating was recoveredfrom his possession. However, he led no evidence in defence.

7. Similarly, Shabbir Ahmad in his statement under section 313Cr.P.C. denied the incriminating circumstances appearing against himand stated that nothing incriminating was recovered from his possession.However, what is pertinent to note is that the ballistic expert report withregard to the use of the pistol allegedly recovered from Shabbir was notput 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 (ChandanSingh) and PW-5 (Mahendra Khurana) to conclude that the deceasedwas last seen alive in the company of the accused going towards thatforest/place from where body of the deceased was recovered; that PW-5 heard noise of gunshot coming from the forest soon after the deceasedand the two accused entered that forest and, soon thereafter, saw theaccused exiting that place minus the deceased. This, according to theTrial Court, was clinching circumstance. The Trial Court also used thetestimony of other witnesses including PW-6 to corroborate the testimonyof the two main witnesses with regard to the deceased being last seenalive with the two accused around midnight in that area from where,next day morning, dead body of the deceased was recovered. The TrialCourt noticed that there was no dispute with regard to the presence ofmoonlight on that night and there was no challenge to the capacity of thewitnesses to identify the accused and the deceased. The Trial Courtalso noticed that as per FSL report the empty cartridge recovered fromthe spot was fired from the same pistol which was recovered from thepossession of Shabbir. And since the autopsy report had confirmed thatdeath of the deceased was caused by use of firearm, the Trial Courtconcluded that it was proved beyond doubt that the accused personshad committed murder of the deceased and to hide the evidence dumpedthe body of the deceased in the forest. They were thus convicted andsentenced accordingly.

16SUPREME COURT REPORTS

AHigh Court Findings:-

9. The High Court upheld the conviction upon finding theprosecution evidence reliable and corroborative of each other.

10. We have heard Ms. Ankita Gautam for the appellant RaviMandal; Mr. Gopal Jha, learned Amicus Curiae, for Shabbir; and Mr.BJatinder Kumar Bhatia for the State of Uttarakhand, and have perusedthe record.

Submissions on behalf of the appellant Ravi Mandal:-

11. On behalf of Ravi Mandal, it was submitted that insofar as theevidence of the deceased being last seen in the company of the twoCaccused is concerned, neither PW-1 (father of the deceased) nor PW-3(mother of the deceased) had seen the deceased in the company of thetwo accused on 31.10.2001. Babloo (PW-7) though disclosed that on31.10.2001 he met Chhotu (the deceased) but he did not depose aboutany of the two accused being with him. Insofar as the testimony of PW-D2 (Chandan Singh) is concerned, no reliance is to be placed on it as he isnot witness arrayed in the chargesheet and there is no cogent explanationas to why he did not make disclosure earlier. Moreover, he is chancewitness whose presence at the spot finds no proper explanation. Similarly,PW-5 too is chance witness whose explanation for his presence at thespot, at that odd hour, is falsified by statement of PW-7 and PW-10. AndEinsofar as PW-6 is concerned, he has been declared hostile. Thus, thereis no reliable evidence of the deceased being last seen alive with the twoaccused.12. In addition to the above, it was argued that the testimonyregarding recovery of weapons from the accused does not appearFconvincing as there is no public witness to it; the site plan of the place ofarrest and recovery was prepared several days after the alleged recoverywhich would suggest that there existed no place of recovery and arrestbut, as an after thought, to complete the formality, the site plan wasprepared.G13. It was also argued that there is material discrepancy in thedeposition of witnesses as to whether the FIR was lodged before, orafter the dead body was brought to the police station. The statement ofPW-1 suggests that he was informed by the police about his son’s bodybeing found, whereupon he went to the spot and brought the dead bodyto the police station to lodge the FIR; whereas, police witnesses stateH

that they proceeded to the spot after PW-1 had lodged the report and atthe spot they carried out inquest proceeding. It was urged that thisdiscrepancy creates doubt as to whether the prosecution case wasdeveloped on guess work at the instance of the police. This doubt getsdoubled because the name of Govind appeared in the first written report.And when it was found that Govind had already expired, the name ofGovind was substituted with Shabbir. It was argued that from the evidenceled, it is clear that the deceased was person with criminal antecedentsand therefore, could have had several enemies. Hence, according to thedefence counsel, it is case where in the night someone killed the son ofPW-1; upon discovering his body, story was developed on the basis ofguess work and so were the accused implicated. It was urged that theTrial Court and the High Court did not properly test the prosecutionevidence and, therefore, the judgments of the two courts below are liableto be set aside.

Submissions on behalf of the appellant Shabbir:-

14. The learned Amicus Curiae representing Shabbir adopted thesubmissions made by the learned counsel representing appellant RaviMandal and added that Shabbir was not named in the initial report. Thestatement of the witnesses would suggest that money was lent to Govind.Chhotu (the deceased) was demanding his money back from Govindand therefore, Govind had the motive. Consequently, on the basis ofsuspicion, the name of Govind was mentioned but when it was foundthat Govind is not traceable, or was possibly killed, Shabbir’s name wassubstituted in place of Govind. In such circumstances, the implication ofShabbir is shrouded in suspicion and the prosecution story insofar as itrelates to Shabbir, is not acceptable. The learned Amicus Curiae claimedthat the alleged recovery of country made pistol is bogus and false whichhas no public witness to support. The ballistic report has also beenquestioned on the ground that there is no explanation as to why thecountry made pistol was not sent for forensic examination before15.01.2002, when it was allegedly recovered on 24.11.2001. It was alsoargued that the ballistic report has not been put to the accused whilerecording his statement under section 313 Cr.P.C., hence it would haveto 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-

A1 and PW-3 have corroborated PW-7 by stating that the food was suppliedfor three persons including the deceased; and PW-2 and PW-5 haveproved that they saw the deceased and the two accused together ataround midnight near the place from where dead body of the deceasedwas recovered next day morning. Therefore, the chain is complete tonail the accused. It was argued that the defence has not been able toBdemonstrate that PW-5 and PW-2 were inimical to the accused. Hence,there is no reason for them to lie. Moreover, defence has not questionedthe capacity of either PW-2 or PW-5 to recognise the accused andChhotu. There is also no question put to PW-5 to doubt the presence ofmoonlight. All the witnesses have stated that it was full moonlight andCthere is no challenge to this statement. In such circumstances, thetestimony of PW-5 is reliable. Consequently, the Trial Court and theHigh Court were justified in placing reliance on the same.

16. With regard to the testimony of PW-2, the learned counsel forthe State submitted that PW-2 might not have been prompt in making aDdisclosure to the police about the incident, but his testimony cannot bediscarded merely on that ground because, here is case where theaccused were criminals, apprehension in the mind of witnesses cannotbe ruled out.

17. In respect of the testimony of PW-6, it was argued that he tooEsupported the prosecution case with regard to the deceased being withthe accused that fateful evening; therefore, his testimony could be usedto corroborate the testimony of other witnesses.

18. The learned counsel for the State summed up his submissionsby stating that the last seen circumstance has been proved to the hilt; therecovery of country made pistol has also been proved which along withFforensic report connects the recovered weapon with the empty cartridgefound at the spot; the autopsy report/ medical evidence proves that deathwas consequence of gunshot and also accepts the possibility of deathin the night hours of 31.10.2001 when the deceased was last seen alivewith the accused therefore, the chain of circumstances is complete,Gleaving no room of doubt with regard to the guilt of the accused. Hence,the conviction recorded by the Trial Court, affirmed by the appellatecourt, calls for no interference.

Discussion and Analysis:-

19. We have considered the rival submissions and have perusedHthe 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 body ofinformant’s son was found in forest. According to the testimony ofpolice witnesses, it was the informant who gave information to the policeabout his son’s dead body being found in the forest and thereafter, on thebasis of the FIR, investigation commenced. Whereas, according to PW-1 the police informed him that his son’s dead body has been found in theforest and thereafter, he went to the spot, brought the body to the policestation and then lodged the report. This cleavage in the testimony ofprosecution witnesses is important because it would throw question asto whether the prosecution case is based on informant’s own knowledgeand information or on suggestions/guess work, may be at the instance ofthe police.20. In the FIR there is no disclosure as to how the body wasfound in that forest. The only disclosure in the FIR is that on 31.10.2001at about 2100 Hours, the informant’s son was seen in the company ofhis friends Govind (non-accused) and Ravi Bangali. As to who had seenthe deceased in the company of the aforesaid two persons is not disclosedin the FIR. No doubt, an FIR is not required to be an encyclopedia andthere is no requirement to name all the witnesses from whom informationis sourced, but, what is important is that, in the FIR, in addition to RaviBangali, suspicion is expressed against one Govind, who is stated to be acriminal and person influencing informant’s son to take wrong path,and there is no disclosure about Shabbir i.e. one of the appellants. Whatis also strikingly absent in the FIR is that Chhotu (the deceased) and hisfriends, on that fateful evening, were to watch night show of movieand, 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 effectthat PW-7 (Babloo) was sent by Chhotu to fetch food for him and hisfriends from his house and Chhotu’s mother (PW-3) sent the food intiffin boxes. This part of the story is completely absent in the FIR eventhough 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 suspicionas to whether the later improvements in the story were to create linkevidence with the help of newly introduced witnesses. This suspicion isfortified by PW-10’s deposition that during investigation PW-1 haddisclosed 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

Areal or not, PW-1 had followed PW-7 and then he saw Chhotu, RaviBangali together and at some distance Shabbir was also there. Notably,PW-1 made no such disclosure during his deposition in Court. It istherefore clear that there was deliberate attempt to multiply thewitnesses. Another important improvement in the prosecution case is

with regard to its edifice i.e. the motive. Initially, the motive for theBcrime was enmity with Govind. But, later, when Govind was found notalive, he was replaced by Shabbir as an accused. All these circumstancestaken cumulatively create doubt in our mind as to whether it is aquintessential case of blind murder (i.e. taking place at secludedplace in the darkness of night where no one could witness the crime),Ctherefore, to solve the case, while groping for witnesses, the prosecutionstory kept evolving, either on the basis of information received fromtime to time, or on guess work emanating from strong suspicion, or policesuggestions. In that backdrop, in our view, this is case where thetestimony of prosecution witnesses, regardless of they having no proven

grudge against the accused, was required to be strictly scrutinised withDa degree of circumspection to ascertain whether it is credible, reliable/trustworthy and truthful, before basing conviction thereupon.

22. In light of the above, when we scrutinise the prosecutionevidence, we find that the prosecution case is primarily based on theevidence of the deceased being last seen alive with the two accusedEnear the place of occurrence on or about the probable time of occurrencei.e. around midnight of 31.10.2001/ 01.11.2001. Such evidence isforthcoming from two witnesses, namely, PW-2 (Chandan Singh) andPW-5 (Mahender Khurana). Insofar as PW-6 is concerned, we do notconsider him reliable, because, firstly, he was set up as an eye witnessFof Shabbir firing gun shot at the deceased but he denied having witnessedsuch gunshot and, secondly, during cross examination, he stated that hehad not seen the incident.23. Insofar as PW-2 is concerned, admittedly, he is not listed as awitness in the police report/charge sheet. He gave his statement to theGpolice on an affidavit for the first time on 18.02.2002, that is, the datewhen the police report was prepared. This implies that he remainedsilent for as long as three and half months. In Kali Ram v. State ofHimachal Pradesh[1], three Judge bench of this Court, while discardingthe testimony of one of the witnesses who made delayed disclosure of

H1 (1973) 2 SCC 808

the incriminating circumstances of which he was aware much earlier,held/observed:

“14. … We find it difficult to accept this part of the deposition ofParma Nand. Parma Nand admits that he came to know of themurder of Dhianu and Nanti about four days after those personswere found to have been murdered. It would, therefore, followthat Parma Nand came to know of the murder of Dhianu andNanti on or about October 4, 1968. Had the accused left for thehouse of Dhianu deceased on the evening of September 29 andhad Parma Nand PW come to know that Dhianu and Nanti weremurdered in their house, this fact must have aroused the suspicionof Parma Nand regarding the complicity of the accused. ParmaNand, however, kept quiet in the matter and did not talk of it. Thestatement of Parma Nand was recorded by the police on December11, 1968. If witness professes to know about gravelyincriminating circumstance against person accused of theoffence of murder and the witness keeps silent for overtwo months regarding the said incriminating circumstanceagainst the accused, his statement relating to theincriminating circumstance, in the absence of any cogentreason, is bound to lose most of its value. No cogent reasonhas been shown to us as to why Parma Nand kept quiet for overtwo months after coming to know of the murder of Dhianu andNanti about the fact that the accused had left for the house of thedeceased shortly before the murder. We are, therefore, not preparedto place any reliance upon the second part of the deposition ofParma Nand.”

(Emphasis supplied)

24. Taking note of the legal principle extracted above, we have toexamine whether, for the delay in disclosure, there was cogentexplanation offered by PW-2. In the instant case, the only explanationoffered by PW-2 for his three and half month’s silence is that he feltthreatened. With regard to his threat perception, PW-2 stated that in thenight of the incident when he witnessed Ravi Bangali and Shabbir Ahmademerging from the forest, soon after the incident, he noticed their handsand clothes blood stained. On spotting PW-2, those two accusedthreatened him by saying that if he (PW-2) tells to anyone about what hehas seen, he would meet the same fate. PW-2 stated that with the arrestof the two accused his fear vanished, therefore, he is now appearing as

Aa witness. In our view, if this was the reason for him not to make thedisclosure earlier, there should have been prompt disclosure by himonce the accused were arrested. Notably, the two accused were arrestedon 24.11.2001, yet, till 18.2.2002 no disclosure was made by him.Therefore, in our considered view, the explanation offered by him forthe delay in making disclosure is not confidence inspiring.B25. Assuming that we accept the explanation for the delay inmaking the disclosure, considering the place and time of occurrence, thepresence of PW-2 at the spot does not appear natural, particularly, atthat odd hour of the night. To explain his presence at the scene of crime,PW-2 stated that his parents stay at another place in Mohalla KhattaCand, therefore, to meet them he visited them that fateful night and onway 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 week. According toPW-2, that fateful night he left his house to visit his parents after havingDdinner in his own house and on way return, at 0030 Hours he witnessedthe incident. This explanation is not confidence inspiring, particularly,because his parents have not been interrogated or examined to corroboratePW-2’s visit to their house at that odd hour of the night. In our view,PW-2 is mere chance witness, whose presence at the spot, at that

hour, is not satisfactorily explained therefore, bearing in mind that heEkept silent for unusually long i.e. for more than three and half months,his testimony is not worthy of any credit. In our view, the courts belowerred by placing reliance on his testimony.

26. As regards the testimony of PW-5 (Mahender Khurana) hetoo, is chance witness. As to when testimony of chance witnessFcould be relied, the law is settled, which is, that the evidence of chancewitness requires very cautious and close scrutiny and chance witnessmust adequately explain his presence at the place of occurrence.Deposition of chance witness whose presence at the place of incidentremains doubtful should be discarded (See:Rajesh Yadav & Another

v. State of Uttar Pradesh[2]; and,Jarnail Singh & Others v. State ofGPunjab[3].27. The explanation offered by PW-5 for his presence at the spotat that odd hour appears false. According to PW-5, he was having an

2 (2022) 12 SCC 200H3 (2009) 9 SCC 719

upset stomach, therefore, while watching night show of movie, toattend to nature’s call, he came out of the cinema hall and, while he waseasing himself, he got the chance to witness the incident. It be noted thatthe investigating officer (PW-10) and PW-7, gram vendor in that cinemahall, have deposed that there are toilets in the cinema hall where nomoney is charged for their use. This falsifies the explanation of PW-5that he went out of the cinema hall to ease himself because cinema hallcharged money for use of the toilet. Otherwise also, PW-10 (theinvestigating officer) in his deposition had stated that he was not shownthe place where PW-5 squatted to ease himself.

28. Besides that, PW-5 is not consistent because, in his statementunder section 161 Cr.P.C., with which he was confronted during thecourse of his deposition, he had indicted Govind, Ravi Bangali and Shabbirby stating that all three were present with the deceased but, during hisdeposition in Court, he stated that Govind was not present. He is also notconsistent with regard to the place where his statement was recorded.At one place he states that it was recorded at the police station and atanother place he states that it was recorded at his shop.

29. Another important feature of the case is that, according toPW-10 (investigating Officer), PW-5’s statement was recorded by himon 01.11.2001 at PW-5’s house. What was the reason for the police togo to the residence of PW-5 to record his statement is not disclosed bythe prosecution. We find it inexplicable as to why police would go toPW-5’s residence to record his statement when the FIR makes nodisclosure about PW-5’s presence at the scene of crime or with regardto his knowledge about the incident. All these circumstances give rise toa lingering doubt in our mind as to whether, on discovery of the deadbody in the forest, the accused were implicated at the instance of thepolice on suspicion rather than on information received from personsconversant with the facts.

30. For all the reasons above, when we evaluate the testimony ofPW-2 and PW-5 carefully and with due caution, as is required in thefacts of the case, we find that their testimony does not inspire ourconfidence as to sustain the conviction. Unfortunately, the courts belowaccepted the same as gospel truth, without testing it on the anvil ofsettled legal principles, thereby resulting in grave miscarriage of justice.We, therefore, conclude that the prosecution has failed to prove beyond

Areasonable doubt that the deceased was last seen alive in the companyof the accused near the spot at the relevant time.

31. In so far as recovery of the country made pistol and knifefrom the person of the accused at the time of their arrest is concerned,the same does not inspire our confidence for the following reasons —BAccording to PW-10, the investigating officer, while he was looking outfor the suspects/accused, received an information from an informer thatthe accused were to come to specified place at 1600 Hours. But, thereis no record of receipt of the said information even though it is stated tohave been received few hours before the action. Assuming that suchinformation was received, there appears no effort to rope in publicCwitness even though locality, as per statement of PW-10, was just 200meters away from that spot. Lastly, what is most interesting is that theinvestigating officer, who investigated the case relating to the offencepunishable under the Arms Act, prepared the site plan of the place ofarrest/recovery on 06.12.2001 even though arrest was allegedly effected

Don 24.11.2001, which, in the facts of the case, would suggest that it wasan exercise to complete the formality. Moreover, the site plan does notdisclose the place where the Jeep was hidden in the forest to ambushthe accused. Having regard to the circumstances noted above, includingthe fact that Shabbir was not named as suspect in the FIR and his

name cropped up later in the statement of PW-5, whose statement wasErecorded on the same day at his residence, even though, he was notcited as witness in the FIR, bearing in mind the statement of PW-1 thatthe police made him to submit the second report indicting Shabbir, weare of the view that the police had shown extraordinary interest inimplicating Shabbir and therefore, for all the reasons above, the allegedFrecovery of gun and knife shown from the appellants does not inspireour confidence. In our considered view, it would be unsafe to rely onsuch recovery to sustain the conviction.

32. Insofar as forensic report/ballistic report is concerned, thesame has not even been put to Shabbir, from whom the country madepistol was seized, while recording his statement under section 313 ofGCr.P.C., therefore, in any event, it would have to be eschewed fromconsideration.

Conclusion:-

33. In light of the discussion above, we are of the consideredview that the case in hand is quintessential case where to solve out aH

blind murder, occurring in forest in the darkness of night, bits andpieces of evidence were collected which warranted strict scrutinybefore basing conviction thereupon. On putting the prosecution evidenceto strict scrutiny and testing the same on the anvil of settled legal principlesas discussed above, we find the evidence not confidence inspiring as touphold the conviction of the accused appellants. In our view, the courtsbelow have failed to properly evaluate and test the evidence by applyingthe correct legal principles. In such circumstances, the judgments of thecourts below are liable to be set aside. Consequently, the appeals areallowed. The impugned judgment and orders of the High Court and theTrial Court are set aside. The appellants are acquitted of all the chargesfor 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, theyshall be released forthwith unless wanted in any other case.

Ankit Gyan

Appeals allowed.

(Assisted by : Manish Tomar and Aarsh Choudhary, LCRAs)