under section 201 IPC in Sessions Trial (S.T.) No.93/2002 (State vs Shabbir Ahmad and Another); (ii) one year R.I. Thereafter, on 10.11.2001, PW-1 gave a written information to the police stating that it was not Govind but Shabbir who along with Ravi and one Mazhar Khan were with the deceased on that fateful night. The prosecution examined 10 witnesses, the gist of their testimony is as under: (i) PW-1 – Man Singh – Informant (father of the deceased)
He is not an eyewitness of the murder.
At the fag end of his cross-examination, PW-1 stated that he had informed the Sub-Inspector regarding financial transactions with Govind and also about Govind not refunding the money, which gave rise to enmity. To show the reason for his presence there, at that odd hour of the night, PW-2 stated that,— his parents have a separate house at Khatta, where he goes at least once a week; that night, after having dinner, while returning from his parents’ house and proceeding towards his own house/shop, at about 0030 Hours, he witnessed the incident. A suggestion was put to PW-2 that mother of Ravi (one of the appellants) is PW-2’s neighbour on whose land PW-2 had constructed his shop.
During cross examination, she admitted that the police had come to her house 2-3 days after the murder of Chhotu but, at that time, she had not informed the police that Govind and Chhotu had gone with the accused persons. He stated that,— on 31.10.2001, while he was watching a night show at the cinema hall, he had to rush out to attend to nature’s call, then he saw Chhotu (the deceased), Ravi Bangali and Shabbir going towards the forest; 2-3 minutes later, he heard sound of a gunshot and 5-7 minutes later, Ravi Bangali and Shabbir minus Chhotu were noticed running and talking to each other that they have settled their account with Chhotu as he had become a nuisance for them on account of his persistent demand for money. (vi) PW-6 –
Hanuman Prasad He stated that,— on 31.10.2001 at about mid- night while he was returning from depot no.6, opposite to the cinema hall, he saw three persons, namely, Chhotu, Ravi Bangali and Shabbir talking to each other and going towards the forest; next day in the morning, he came to know that Chhotu has been murdered. PW-7
stated that he came to the residence of Chhotu, took food and brought it in three boxes but when he reached there with the food, he saw no one, therefore, he kept the food there. (ix) PW-9 – Sub-Inspector Nanhe Lal (Investigating Officer of the cases under the Arms Act)
He proved the inquest report (Ex.
Ka- 4, and one empty 12 bore cartridge from the spot, vide seizure memo Ex.Ka-5 of which PW-1 is one of the witnesses; conducting inquest; recording statement of — complainant Man Singh (PW-1), Babloo (PW-7) and Mahender Khurana (PW-5); preparation of custody memo of the tiffin; recording statement of — Smt. During cross examination, at the instance of accused Shabbir, PW-10 stated that, — in the FIR Shabbir was not named; PW-10 reached the place of occurrence at about 0800 Hours; the dead body was lying at the spot; the statement of Man Singh was recorded at the spot on 01.11.2001; Man Singh had informed him that Chhotu (the deceased) had not been coming home since last 10-12 days before the incident, however, no information regarding Chhotu was given earlier; Mahender Khurana (PW-5) had told that in the night he had seen Govind with Ravi, Chhotu and Shabbir going towards the forest; Man Singh on 01.11.2001 had stated that Govind had borrowed Rs.16,000/- from Chhotu; Man Singh’s (PW-1’s) statement was recorded thrice; Chandan Singh (PW-2) gave an affidavit on 18.02.2002, prior to that he did not come; Urmila Devi, whose statement was recorded on 02.11.2001 at her residence, did not disclose that PW-2 had seen the accused persons; and Mithilesh’s (PW-4’s) statement was recorded twice, one on 03.11.2001 and the other With regard to the sequence of events on the day of arrest of the two accused, PW-10 stated that, — on 24.11.2001, he had received information from an informer that at 1600 Hours accused persons were to come to their house; the said information was received at about 1430 Hours; on receipt of the information, PW-10 and his team arrived at the spot in their Jeep, which was hidden in the forest at some distance; after 10-15 minutes, PW-10 saw the accused persons coming and were accordingly arrested.
However, what is pertinent to note is that the ballistic expert report with regard to the use of the pistol allegedly recovered from Shabbir was not put to him while recording his statement under section 313 Cr.P.C.
The Trial Court also used the testimony of other witnesses including PW-6 to corroborate the testimony of the two main witnesses with regard to the deceased being last seen alive with the two accused around midnight in that area from where, next day morning, dead body of the deceased was recovered.
On behalf of Ravi Mandal, it was submitted that insofar as the evidence of the deceased being last seen in the company of the two accused is concerned, neither PW-1 (father of the deceased) nor PW-3 (mother of the deceased) had seen the deceased in the company of the two accused on 31.10.2001. Similarly, PW-5 too is a chance witness whose explanation for his presence at the spot, at that odd hour, is falsified by statement of PW-7 and PW-10. Hence, according to the defence counsel, it is a case where in the night someone killed the son of PW-1; upon discovering his body, story was developed on the basis of guess work and so were the accused implicated. The learned Amicus Curiae representing Shabbir adopted the submissions made by the learned counsel representing appellant Ravi Mandal and added that Shabbir was not named in the initial report.
It was also argued that the ballistic report has not been put to the accused while recording his statement under section 313 Cr.P.C., hence it would have to be eschewed from consideration. With regard to the testimony of PW-2, the learned counsel for the State submitted that PW-2 might not have been prompt in making a disclosure to the police about the incident, but his testimony cannot be discarded merely on that ground because, here is a case where the accused were criminals, apprehension in the mind of witnesses cannot be ruled out. The learned counsel for the State summed up his submissions by stating that the last seen circumstance has been proved to the hilt; the recovery of country made pistol has also been proved which along with forensic report connects the recovered weapon with the empty cartridge found at the spot; the autopsy report/ medical evidence proves that death was a consequence of gunshot and also accepts the possibility of death in the night hours of 31.10.2001 when the deceased was last seen alive with the accused therefore, the chain of circumstances is complete, leaving no room of doubt with regard to the guilt of the accused. According to the testimony of police witnesses, it was the informant who gave information to the police about his son’s dead body being found in the forest and thereafter, on the basis of the FIR, investigation commenced. The prosecution story which develops later is to the effect that PW-7 (Babloo) was sent by Chhotu to fetch food for him and his friends from his house and Chhotu’s mother (PW-3) sent the food in tiffin boxes.
This suspicion is fortified by PW-10’s deposition that during investigation PW-1 had disclosed that the deceased had not been coming home and, therefore, to test whether the request of PW-7 to pack food for the deceased was real or not, PW-1 had followed PW-7 and then he saw Chhotu, Ravi Bangali together and at some distance Shabbir was also there. In light of the above, when we scrutinise the prosecution evidence, we find that the prosecution case is primarily based on the evidence of the deceased being last seen alive with the two accused near the place of occurrence on or about the probable time of occurrence i.e. Insofar as PW-2 is concerned, admittedly, he is not listed as a witness in the police report/charge sheet. Had the accused left for the house of Dhianu deceased on the evening of September 29 and had Parma Nand PW come to know that Dhianu and Nanti were murdered in their house, this fact must have aroused the suspicion of Parma Nand regarding the complicity of the accused. On spotting PW-2, those two accused threatened him by saying that if he (PW-2) tells to anyone about what he has seen, he would meet the same fate. To explain his presence at the scene of crime, PW-2 stated that his parents stay at another place in Mohalla Khatta and, therefore, to meet them he visited them that fateful night and on way return he could witness the incident. In our view, PW-2 is a mere chance witness, whose presence at the spot, at that hour, is not satisfactorily explained therefore, bearing in mind that he kept silent for unusually long i.e. It be noted that the investigating officer (PW-10) and PW-7, a gram vendor in that cinema hall, have deposed that there are toilets in the cinema hall where no money is charged for their use.
We find it inexplicable as to why police would go to PW-5’s residence to record his statement when the FIR makes no disclosure about PW-5’s presence at the scene of crime or with regard to his knowledge about the incident. In so far as recovery of the country made pistol and knife from the person of the accused at the time of their arrest is concerned, the same does not inspire our confidence for the following reasons — According to PW-10, the investigating officer, while he was looking out for the suspects/accused, received an information from an informer that the accused were to come to a specified place at 1600 Hours. Insofar as forensic report/ballistic report is concerned, the same has not even been put to Shabbir, from whom the country made pistol was seized, while recording his statement under section 313 of Cr.P.C., therefore, in any event, it would have to be eschewed from consideration.
On putting the prosecution evidence to strict scrutiny and testing the same on the anvil of settled legal principles as discussed above, we find the evidence not confidence inspiring as to uphold the conviction of the accused appellants. In case they are not on bail, they shall be released forthwith unless wanted in any other case.
Case Title: RAVI MANDAL Vs. THE STATE OF UTTARAKHAND (2023 INSC 552)
Case Number: Crl.A. No.-000511-000511 / 2011
