CONTRADICTORY FACTS IN FIR
20. In the FIR there is no disclosure as to how the body was found in that forest. The only disclosure in the FIR is that on 31.10.2001 at about 2100 Hours, the informant’s son was seen in the company of his friends Govind (non-accused) and Ravi Bangali. As to who had seen the deceased in the company of the aforesaid two persons is not disclosed in the FIR. No doubt, an FIR is not required to be an encyclopaedia and there is no requirement to name all the witnesses from whom information is sourced, but, what is important is that, in the FIR, in addition to Ravi Bangali, suspicion is expressed against one Govind, who is stated to be a criminal and a person influencing informant’s son to take a wrong path, and there is no disclosure about Shabbir i.e. one of the appellants. What is also strikingly absent in the FIR is that Chhotu (the deceased) and his friends, on that fateful evening, were to watch a night show of a movie and, therefore, Chhotu had sent PW-7 to fetch food from his parents (i.e. PW-1 and PW-3).
LATER STORY OF THE PROSECUTION CONTRADICTING WITH THE FIR
21. The prosecution story which develops later is to the effect that PW-7 (Babloo) was sent by Chhotu to fetch food for him and his friends from his house and Chhotu’s mother (PW-3) sent the food in tiffin boxes. This part of the story is completely absent in the FIR even though it was lodged by father of the deceased who, as per his deposition, was having information about it. All of this would give rise to a suspicion as to whether the later improvements in the story were to create link evidence with the help of newly introduced witnesses. This suspicion is fortified by PW-10’s deposition that during investigation PW-1 had disclosed that the deceased had not been coming home and, therefore, to test whether the request of PW-7 to pack food for the deceased was real or not, PW-1 had followed PW-7 and then he saw Chhotu, Ravi Bangali together and at some distance Shabbir was also there. Notably, PW-1 made no such disclosure during his deposition in Court. It is therefore clear that there was a deliberate attempt to multiply the witnesses. Another important improvement in the prosecution case is with regard to its edifice i.e. the motive. Initially, the motive for the crime was enmity with Govind. But, later, when Govind was found not alive, he was replaced by Shabbir as an accused. All these circumstances taken cumulatively create a doubt in our mind as to whether it is a quintessential case of a blind murder (i.e. taking place at a secluded place in the darkness of night where no one could witness the crime), therefore, to solve the case, while groping for witnesses, the prosecution story kept evolving, either on the basis of information received from time to time, or on guess work emanating from strong suspicion, or police suggestions. In that backdrop, in our view, this is a case where the testimony of prosecution witnesses, regardless of they having no proven grudge against the accused, was required to be strictly scrutinised with a degree of circumspection to ascertain whether it is credible, reliable/trustworthy and truthful, before basing a conviction thereupon.
WITNESS DISCLOSING THE FACTS AFTER THREE MONTHS IS SUSPICIOUS
23. Insofar as PW-2 is concerned, admittedly, he is not listed as a witness in the police report/charge sheet. He gave his statement to the police on an affidavit for the first time on 18.02.2002, that is, the date when the police report was prepared. This implies that he remained silent for as long as three and a half months. In Kali Ram v. State of Himachal Pradesh [(1973) 2 SCC 808], a three Judge bench of this Court, while discarding the testimony of one of the witnesses who made a delayed disclosure of the incriminating circumstances of which he was aware much earlier, held/observed:
“14. … We find it difficult to accept this part of the deposition of Parma Nand. Parma Nand admits that he came to know of the murder of Dhianu and Nanti about four days after those persons were found to have been murdered. It would, therefore, follow that Parma Nand came to know of the murder of Dhianu and Nanti on or about October 4, 1968. Had the accused left for the house of Dhianu deceased on the evening of September 29 and had Parma Nand PW come to know that Dhianu and Nanti were murdered in their house, this fact must have aroused the suspicion of Parma Nand regarding the complicity of the accused. Parma Nand, however, kept quiet in the matter and did not talk of it. The statement of Parma Nand was recorded by the police on December 11, 1968. If a witness professes to know about a gravely incriminating circumstance against a person accused of the offence of murder and the witness keeps silent for over two months regarding the said incriminating circumstance against the accused, his statement relating to the incriminating circumstance, in the absence of any cogent reason, is bound to lose most of its value. No cogent reason has been shown to us as to why Parma Nand kept quiet for over two months after coming to know of the murder of Dhianu and Nanti about the fact that the accused had left for the house of the deceased shortly before the murder. We are, therefore, not prepared to place any reliance upon the second part of the deposition of Parma Nand.” (Emphasis supplied)
24. Taking note of the legal principle extracted above, we have to examine whether, for the delay in disclosure, there was a cogent explanation offered by PW-2. In the instant case, the only explanation offered by PW-2 for his three and a half month’s silence is that he felt threatened. With regard to his threat perception, PW-2 stated that in the night of the incident when he witnessed Ravi Bangali and Shabbir Ahmad emerging from the forest, soon after the incident, he noticed their hands and clothes blood stained. On spotting PW-2, those two accused threatened him by saying that if he (PW-2) tells to anyone about what he has seen, he would meet the same fate. PW-2 stated that with the arrest of the two accused his fear vanished, therefore, he is now appearing as a witness. In our view, if this was the reason for him not to make the disclosure earlier, there should have been a prompt disclosure by him once the accused were arrested. Notably, the two accused were arrested on 24.11.2001, yet, till 18.2.2002 no disclosure was made by him. Therefore, in our considered view, the explanation offered by him for the delay in making disclosure is not confidence inspiring.
CHANCE WITNESS EXPLAINED
26. As regards the testimony of PW-5 (Mahender Khurana) he too, is a chance witness. As to when testimony of a chance witness could be relied, the law is settled, which is, that the evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence. Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (See: Rajesh Yadav & Another v. State of Uttar Pradesh [(2022) 12 SCC 200]; and, Jarnail Singh & Others v. State of Punjab [(2009) 9 SCC 719].
CONTRADICTIONS ARE ALSO VISIBLE IN WITNESS DEPOSITION
28. Besides that, PW-5 is not consistent because, in his statement under section 161 Cr.P.C., with which he was confronted during the course of his deposition, he had indicted Govind, Ravi Bangali and Shabbir by stating that all three were present with the deceased but, during his deposition in Court, he stated that Govind was not present. He is also not consistent with regard to the place where his statement was recorded. At one place he states that it was recorded at the police station and at another place he states that it was recorded at his shop.
IO VISITED WITNESS HOUSE TO RECORD HIS STATEMENT THOUGH THE WITNESS IS NOT PRESENT IN SOC
29. Another important feature of the case is that, according to PW-10 (investigating Officer), PW-5’s statement was recorded by him on 01.11.2001 at PW5’s house. What was the reason for the police to go to the residence of PW-5 to record his statement is not disclosed by the prosecution. We find it inexplicable as to why police would go to PW-5’s residence to record his statement when the FIR makes no disclosure about PW-5’s presence at the scene of crime or with regard to his knowledge about the incident. All these circumstances give rise to a lingering doubt in our mind as to whether, on discovery of the dead body in the forest, the accused were implicated at the instance of the police on suspicion rather than on information received from persons conversant with the facts.
RECOVERY DOES NOT INSPIRE CONFIDENCE
31. In so far as recovery of the country made pistol and knife from the person of the accused at the time of their arrest is concerned, the same does not inspire our confidence for the following reasons — According to PW-10, the investigating officer, while he was looking out for the suspects/accused, received an information from an informer that the accused were to come to a specified place at 1600 Hours. But, there is no record of receipt of the said information even though it is stated to have been received few hours before the action. Assuming that such information was received, there appears no effort to rope in a public witness even though a locality, as per statement of PW-10, was just 200 meters away from that spot.
SITE PLAN PREPARED BELATEDLY
Lastly, what is most interesting is that the investigating officer, who investigated the case relating to the offence punishable under the Arms Act, prepared the site plan of the place of arrest/recovery on 06.12.2001 even though arrest was allegedly effected on 24.11.2001, which, in the facts of the case, would suggest that it was an exercise to complete the formality. Moreover, the site plan does not disclose the place where the Jeep was hidden in the forest to ambush the accused. Having regard to the circumstances noted above, including the fact that Shabbir was not named as a suspect in the FIR and his name cropped up later in the statement of PW-5, whose statement was recorded on the same day at his residence, even though, he was not cited as a witness in the FIR, bearing in mind the statement of PW-1 that the police made him to submit the second report indicting Shabbir, we are of the view that the police had shown extraordinary interest in implicating Shabbir and therefore, for all the reasons above, the alleged recovery of gun and knife shown from the appellants does not inspire our confidence. In our considered view, it would be unsafe to rely on such recovery to sustain the conviction.
FACT NOT PUT IN S.313 Cr.P.C MUST BE ESCHEWED
32. Insofar as forensic report/ballistic report is concerned, the same has not even been put to Shabbir, from whom the country made pistol was seized, while recording his statement under section 313 of Cr.P.C., therefore, in any event, it would have to be eschewed from consideration.
Accused Acquitted.
PARTY: RAVI MANDAL vs. STATE OF UTTARAKHAND – Criminal Appeal No. 511 of 2011 – May 18, 2023
https://main.sci.gov.in/supremecourt/2010/27098/27098_2010_14_1501_44582_Judgement_18-May-2023.pdf
