Jagvir Singh vs The State Of Uttar Pradesh

2024 INSC 384 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 3684 OF 2023

JAGVIR SINGH .…APPELLANT(S)

VERSUS

STATE OF U.P. ….RESPONDENT(S)

JUDGMENT

Mehta, J.

1. The instant appeal is directed against the judgment dated

10th May, 2019 passed by the Division Bench of the High Court of

Allahabad whereby the Criminal Appeal No. 6318 of 2003 preferred

by the appellant for challenging the judgment dated 25th

November, 2003 and the order of sentence dated 27th November,

2003 passed by the learned Additional Sessions Judge No.1,

Mainpuri(hereinafter being referred to as the ‘trial Court’) in S.T.

No. 56 of 2003 was rejected.

2. Signature Not Verified By the said judgment, learned trial Court convicted the Digitally signed by Deepak Singh

accused appellant and accused Omkar for the offences punishable Date: 2024.05.07 15:40:21 IST Reason:

under Section 302 read with Section 34 of the Indian Penal Code,

1 1860(hereinafter being referred to as ‘IPC’) while acquitting

accused Sobran and Durvin from the charges. The accused

appellant as well as accused Omkar were sentenced to undergo

imprisonment for life and to pay a fine of Rs.1,000/-, each and in

default of payment of fine to further undergo rigorous

imprisonment for a period of one year.

This Court is informed that accused Omkar has served out

the sentence awarded to him and was released on remission.

Brief facts: -

3. The first informant-Ram Naresh(PW-5) gave a written

report(Ex.Ka.15) at the Police Station Dannahar, District Mainpuri

alleging that his sister, brother-in-law and nephew-

Sanju(deceased) were residing nearby his house in village

Gokulpur for the last 15 years; on 31st August, 2002, at about 5.00

p.m., accused Omkar came and asked Sanju(deceased) to remove

his Naands(Hauda) from the land of the accused, to which,

Sanju(deceased) objected saying that the Naands(Hauda) were

existing there for a long time; at this, accused Omkar armed with

a rifle of 315 bore along with Jagvir Singh(appellant herein) armed

with country made pistol climbed on the roof of house of accused

Omkar and exhorted the two accused(Durvin and Sobran) to

2 surround Sanju(deceased); the accused Durvin and Sobran who

were armed with country made pistols went to the house of

Sanju(deceased) who on account of fear and to save his life climbed

up to the roof of informant’s house. Accused Omkar and Jagvir

fired shots at Sanju(deceased) from the roof of Omkar’s house. On

hearing the noise, Ram Naresh-first informant(PW-5) and Ram

Prakash(PW-1) rushed to the courtyard and found injured-Sanju

trying to step down, but he rolled down near the staircase and died

in the courtyard. All four accused ran away from the spot after

firing gunshots.

4. On the basis of the said report, FIR No. 85 of 2002 (Ex.Ka.2)

dated 31st August, 2002 came to be registered against the four

accused namely Omkar, Jagvir Singh, Durvin and Sobran.

Investigation was assigned to Ganga Prasad Gautam(PW-6) who

prepared the inquest report(Ex.Ka.6) and other spot documents.

The dead body of Sanju was subjected to autopsy by Dr. M.L.

Gupta, Medical Officer(PW-3) who prepared the post mortem

report(Ex.Ka.1) taking note of four abrasions and two firearm

wounds on the body of the deceased. The entry wound was located

on the chest area and the exit wound was located on the back of

the chest. The Medical Officer(PW-3) opined that the death of Sanju

3 was caused due to shock and haemorrhage as a result of ante

mortem injuries. The Site Inspection Plan(Ex.Ka.12) was prepared,

statements of witnesses were recorded and a country-made pistol

was recovered vide recovery memo(Ex.Ka.13) on being pointed out

by the accused appellant Jagvir Singh.

5. Upon conclusion of the investigation, a charge

sheet(Ex.Ka.14) came to be filed against the four accused persons

nominated in the FIR for the offences punishable under Section

302 read with Section 34 IPC.

6. Since the offence was exclusively sessions triable, the case

was committed and transferred to the Court of Additional Sessions

Judge No.1, Mainpuri(‘trial Court’). The trial Court framed charges

against the accused persons for the above offences. They abjured

their guilt and claimed trial. The prosecution examined seven

witnesses, exhibited 15 documents and 8 material objects to prove

its case. The statements of the accused persons were recorded

under Section 313 of the Code of Criminal Procedure,

1973(hereinafter being referred to as 'CrPC’). They denied having

committed the crime and claimed to have been falsely implicated.

The accused appellant Jagvir Singh stated in his Section 313 CrPC

statement that “Pradhan-Ramvir and others were firing from the

4 roof of informant which hit deceased-Sanju standing in veranda,

due to which, Sanju died”.

7. The learned trial Court, proceeded to rely upon the testimony

of Ram Prakash(PW-1)(father of Sanju), Sultan Singh(PW-2)(uncle

of Sanju), and Ram Naresh(PW-5)(the first informant and maternal

uncle of Sanju) as being eyewitnesses of the occurrence.

8. The evidence of Medical Officer(PW-3) was treated as

conclusive to establish the fact regarding the homicidal death of

Sanju. Upon conclusion of trial, the learned trial Court acquitted

two accused Durvin and Sobran and convicted the accused

appellant and accused Omkar by judgment dated 25th November,

2003 and sentenced them on above terms by order of sentence

dated 27th November, 2003.

9. The appeal preferred on behalf of the accused appellant

challenging the conviction and sentence was rejected by learned

Division Bench of the Allahabad High Court by judgment dated

10th May, 2019 which is subjected to challenge in this appeal by

special leave.

Submissions on behalf of the appellant:

10. Shri Kaushal Yadav, learned counsel for the accused

appellant vehemently urged that the testimony of so called eye

5 witnesses, Ram Prakash(PW-1), Sultan Singh(PW-2) and Ram

Naresh(PW-5) is totally unreliable and they are concocted

witnesses as they were not present at the crime scene.

11. It was submitted that the manner and location at which

Sanju(deceased) received the injuries would make it clear that

none of these so called eye witnesses were in a position to see the

incident.

12. He urged that as per the admitted case of prosecution,

gunshots were fired by the accused persons while standing on the

roof of the house of accused Omkar and that time Sanju received

the gunshot injury while standing on the roof of the house of his

maternal uncle Ram Naresh(PW-5). Drawing the Court’s attention

to the Site Inspection Plan(Ex.Ka.12) prepared by Ganga Prasad

Gautam, Investigating Officer(PW-6), learned counsel urged that

there is a gap of almost 3-4 houses between the two spots. The

eyewitnesses were admittedly not anywhere near Sanju(deceased)

and were admittedly on the ground when the gunshots were fired

at him.

13. Thus, there was no possibility that any of these witnesses

could have actually seen the incident of firing or identified the

assailant(s) who fired gunshots at Sanju(deceased).

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14. Attention of the Court was drawn to the certain excerpts from

the evidence of the three star prosecution witnesses namely, Ram

Prakash(PW-1), Sultan Singh(PW-2) and Ram Naresh(PW-5) which

are reproduced hereinbelow:-

Examination in Chief of Ram Prakash(PW-1)

“Omkar had 315 bore illegal rifle and Jagvir had illegal country made gun and Sobran and Durvin were also carrying illegal weapons in their hands, they came to my house and Omkar asked them to surround Sanju, Sanju climbed the wall of my under constructed house and ran towards his maternal Uncle's house. The accused reached the roof of their house and Sanju has reached the roof of his Uncle's house. On chaos myself and my brother in law Ram Naresh also reached the roof of the house. I was about 10 paces away from Sanju when Omkar fired on him. Out of fear we came down and Sanju also followed us. Sanju was shot on roof itself and while getting down the blood was flowing and he stumbled upon the stairs. After falling from the staircase he died on the spot”

Cross Examination of Ram Prakash(PW-1)

“I work in the bangle factory in Firozabad. My village Gokulpur to Firozabad where I work in the factory is about 56-57 kms away. The witness of the incident is Sultan Singh who is the son of Ramvir Pradhan's uncle. He is nephew in relation to my wife Shaitan. During the incident I used to stay in Firozabad in the rented accommodation.

Accused Omkar house is towards the north side of my village. There is a Chak Road which runs from Omkar's house. The chak road is used to travel for the city, there are 3 rooms in Omkar's house facing towards east. Each room is at least 5-5 or 6-6 feet long. There is a dilapidated house while coming towards my house from Omkar's house. The dilapidated house is about 10-12feet long. There is a Girdhari's finished house which is 18feets long in north south and my brother in laws Ram Naresh house is situated along with house of Girdhari which has one room and a veranda. There is a balcony in front of the veranda. Both the doors of the room of Ram Naresh house open in the veranda. Both the rooms of Ram Naresh is about 6- 6 or 7-7 feet long. Veranda is about 10-11 feet long. It is connected with the wall of my house, one room of Ram Naresh

7 a courtyard and two other room, right after that is my house.

There is a room within a veranda towards the east having staircase used for going on to the roof. There is no other way to reach the roof of Ram Naresh. Accused Omkar's house cannot be seen by standing in the veranda of Ram Naresh. We ran after my son incurred injury of fire.

My signature was not taken by the Inspector on the Fard. My signatures was not taken anywhere in the Panchama. The people who registered the report informed me that your name is also mentioned as the witness.”

Examination in Chief of Sultan Singh(PW-2)

“Date of incident 31.08.2002 at about 5 pm in the evening. I was cutting grass at the time of the incident in my field. I heard the sound of the abuse and that surround him so that he cannot run away. I saw this while standing on the ram of my field that the Omkar was carrying 315 bore rifle, Jagvir carrying country made gun and these people were standing on the roof of Omkar. I saw that Omkar fired on Sanju who was standing on the roof of Ram Naresh. The fire shot hit Sanju. Jagvir also fired. 3-4 firing was made on the roof. Sanju incurred firearm injury, he could only come towards the staircase and fell from there. Then I came to the house of Ram Naresh from my field and saw Sanju had died.”

Cross Examination of Sultan Singh(PW-2)

“My field is 100 mts away from my house towards the south.

From my field deceased Sanju's house is visible but the door is not visible nor the complainant Ram Naresh's house and veranda is not visible.

I stood in my field after hearing the noise of abuses. I came to the place of incident after the firing took place. I did not see the bullet entering and exit the body of the deceased but i heard the sound of fire and saw Sanju falling down from the staircase.”

Examination in Chief of Ram Naresh(PW-5)

“At 5 pm 4 people came at the door of Sanju namely Omkar, Soberan, Jagvir and Durvin. After taking fodder when Sanju came to the house then these people asked him to remove his Naands (Hauda) then Sanju replied that Naada (Hauda) were there since his birth and that he will not remove. On this all the

8 four people ran away to their houses and Omkar carrying a rifle, Jagveer, Soberan and Durvin carrying country made pistols came there. Durvin and Soberan came in front of the door of Sanju. Omkar asked them to surround him while Omkar and Jagveer climbed on top of the roof. Out of fear of Durvin and Soberan my nephew Sanju reached on the roof of my house from his half constructed house. As soon as me and my brother in law Ram Prakash from the staircase went to the roof then Omkar made 2-3 firing on Sanju. Jagvir also fired. Me and Ram Prakash were climbing the stairs up while Sanju was coming towards the staircase.

This incident was witnessed by me, my brother in law, Sultan Singh S/o Moti Lal and all the people from my house.

Cross Examination of Ram Naresh(PW-5)

In my report I have stated that "I and my brother in law Ram Prakash after hearing the sound of firing went towards the roof we saw Sanju was injured". This is the correct statement. When I climbed one step of the staircase I saw Sanju coming towards the staircase, my brother in law saw the same thing with me.

When I and my brother in law reached the courtyard we saw Sanju stumbling down from the staircase from the courtyard where there is a veranda in front of my house, from where the roof of Omkar is not visible.

When Inspector arrived Ram Prakash was present at the place of the incident. He was conscious but he did not state anything to the Inspector.”

15. Learned counsel for the appellant further submitted that the

theory setup by Ram Prakash(PW-1) in his examination-in-chief,

that he and Ram Naresh(PW-5) both climbed on to the roof with

Sanju(deceased) and saw the gunshots being fired at him is totally

falsified and contradicted by Ram Naresh(PW-5) who candidly

admitted that he and his brother-in-law Ram Prakash(PW-1), upon

hearing the sound of firing, went towards the roof and saw that

9 Sanju had been injured by gunshots. This very fact was also

mentioned in the FIR(Ex.Ka.2). He also urged that the witness Ram

Naresh(PW-5) admitted in his testimony that they saw Sanju

stumbling down from the staircase into the courtyard. They were

standing in the veranda in front of his house and from there the

roof of Omkar’s house is not visible.

16. Learned counsel urged that Ram Prakash(PW-1) being the

father of the deceased did not sign any of the documents prepared

at the spot. He admitted in his cross examination that during the

incident, he used to stay in Firozabad in a rented accommodation

which was about 56-57 kms away from his village Gokulpur where

the alleged incident took place. The witness also admitted that the

people who registered the report informed him that his name was

also mentioned as a witness. Learned counsel submitted that the

conjoint reading of these admissions as appearing in the evidence

of Ram Prakash(PW-1) would make it clear that he was not present

at the spot and was created to be an eye witness at a subsequent

point of time.

17. It was contended that the allegation made by the witnesses

that the accused appellant fired at Sanju while standing beside

10 accused Omkar is nothing but a piece of fabrication made owing

to prior enmity.

18. It was further submitted that as per Ram Prakash(PW-1) and

Ram Naresh(PW-5), the incident took place in two parts. In the

first part, there was an exchange of hot words(arguments) between

the four accused and Sanju(deceased). Even at that point of time,

all the four accused were carrying weapon in their hands whereas,

Sanju(deceased) was alone and unarmed. Thus, if at all, the

accused were intending to kill Sanju, then there was no reason for

them to have gone away from the house of Ram Naresh(PW-1)

where this heated exchange took place. Rather, they could have

easily shot and killed Sanju then and there.

19. It was further submitted that the very sequence of events

regarding the second part of the incident wherein, the witnesses

claimed that the two accused persons Sobran and Durvin were

asked to surround Sanju; the accused Omkar and Jagvir

Singh(accused appellant) went towards the house of Omkar and

climbed on to the roof; that Sanju climbed to the roof of Ram

Naresh’s house and then, the gunshots were fired at him by

accused Omkar and Jagvir Singh from the terrace of Omkar’s

house is on the face of it a piece of fiction without an iota of truth.

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20. He urged that conviction of the accused appellant is totally

unjustified because the testimony of the so-called eyewitnesses is

unreliable on the face of the record.

Learned counsel thus implored the Court to accept the appeal

and quash the impugned judgment and acquit the accused

appellant by giving him the benefit of doubt.

Submissions on behalf of the Respondent-State: -

21. Per contra, Ms. Garima Prasad, learned Additional Advocate

General representing the State of Uttar Pradesh, vehemently and

fervently opposed the submissions advanced by learned counsel

for the appellant and urged that two Courts, i.e., the trial Court

and the High Court, have recorded concurrent findings of facts

while convicting the appellant and affirming his conviction and

hence, this Court should be slow to interfere in such concurrent

findings of facts. She submitted that it is clear from the testimony

of the three eye witnesses i.e. Ram Prakash(PW-1), Sultan

Singh(PW-2) and Ram Naresh(PW-5) that the accused appellant

Jagvir Singh and the accused Omkar fired gunshots at

Sanju(deceased) causing his death at the spot. She implored the

Court to dismiss the appeal.

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22. We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

impugned judgments and the material placed on record.

Discussion and Conclusion:

23. From a perusal of the FIR(Ex.Ka.2), it is manifest that the

first informant-Ram Naresh(PW-5) categorically mentioned in the

report that on hearing the gunshots, he and his brother-in-law

Ram Prakash(PW-1) climbed on the top of the roof and saw that

Sanju(deceased) was injured, and while he was climbing down the

staircase, he rolled down, fell in the courtyard near the stairs and

died. This fact is even admitted by Ram Naresh(PW-5) during this

cross-examination in the following terms: -

“However, I mentioned in my report that, “when I and my brother-in-law after hearing the gun shots/fire reached the roof of the house, we saw Sanju injured”, is correct.”

24. The first informant-Ram Naresh(PW-5) also stated that he

and Ram Prakash(PW-1) were climbing up the stairs while Sanju

was coming down the staircase. Sanju got down 2-3 steps from

the staircase and then stumbled down. When he and his brother-

in-law Ram Prakash(PW-1) reached the courtyard, they saw Sanju

stumbling down from the staircase from the courtyard, from where

the roof of Omkar is not visible.

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25. Thus, apparently, the claim made by Ram Prakash(PW-1) in

his evidence that he and Ram Naresh(PW-5) had reached the roof

of the house from where they saw Omkar firing at Sanju is a sheer

piece of concoction and unacceptable on the face of the record.

26. Another material fact emerging from examination-in-chief of

Ram Prakash(PW-1) is that he did not allege that accused

appellant Jagvir Singh also fired at Sanju. He also admitted in his

cross-examination that the house of accused Omkar will not be

visible from the courtyard of Ram Naresh.

27. Both, Ram Prakash(PW-1) and Ram Naresh(PW-5) stated in

their testimony that they got alarmed on hearing the sound of

gunfire. If at all the shot had been fired from the house of Omkar,

there is no reason as to why the witnesses would go to the

courtyard of the house of Ram Naresh(PW-5) rather than rushing

towards the direction from where the sound of the gunshot had

been heard. Manifestly, their attention would be drawn towards

the sound of the gunshots being fired and in natural course, they

would look towards that direction and not anywhere else.

28. Ram Prakash(PW-1) and Ram Naresh(PW-5) deposed in their

testimony that during the second part of the incident; accused

Omkar asked the accused Durvin and Sobran(since acquitted) to

14 corner and surround Sanju who also rushed to the roof of the

house of Ram Naresh(PW-5).

29. We further find that the conduct of the eye-witnesses Ram

Prakash(PW-1) and Ram Naresh(PW-5) is totally unnatural. Both

the witnesses claimed to have seen Sanju(deceased) being chased

and surrounded by accused Durvin and Sobran. Despite, that,

neither of them, made an attempt to save Sanju from these

assailants or to at least raise a hue and cry so that the

neighbouring people could be sounded about the incident. Neither

of the witnesses made an attempt to intervene or to shield Sanju.

30. Furthermore, both the witnesses claimed that they saw

accused Omkar and accused appellant Jagvir Singh rushing

towards the house of Omkar and climbing the roof thereof. Hence,

there was no rhyme or reason as to why, Sanju would also climb

up the roof of Ram Naresh’s house and take the risk of exposing

himself to the offensive intents of the accused persons.

31. The participation of accused Durvin and Sobran in the

incident has not been accepted by the trial Court and on that

basis, these two accused persons were acquitted. Clearly, thus, the

story put forth by the witnesses that accused Durvin and Sobran

were also amongst the four offenders who were making an attempt

15 to eliminate Sanju is unacceptable and unbelievable. Thus, the

quarrel, if any, unquestionably took place between accused Omkar

and accused appellant Jagvir Singh on the one side and Sanju on

the other. Once accused Omkar and accused appellant Jagvir

Singh had moved on from the place where the first part of the

incident took place, Sanju had no reason, whatsoever, to climb up

the roof of Ram Naresh’s house because he was not facing any

threat thereafter. Thus, the entire prosecution case is shrouded

under a cloud of doubt.

32. A three judge Bench of this Court in the case of Selveraj v.

State of Tamil Nadu1 set aside the concurrent findings of guilt

recorded by the trial Court and the High Court, wherein on an

appreciation of evidence the prosecution story was found highly

improbable and inconsistent of ordinary course of human nature.

The relevant extract of which is reproduced hereinbelow: -

“4. The conviction of the appellant rests on the oral testimony of Natesan and Manisekaran who claimed to be eyewitnesses to the murder of the deceased. Both the learned Additional Sessions Judge as well as the High Court have believed the evidence of these two witnesses and ordinarily we would be loath to disturb the concurrent view taken by both these Courts as regards the appreciation of their evidence, but we find that there are inherent improbabilities in the story put forward by these two witnesses and we do not think it would be safe to act upon their uncorroborated testimony. In the first place, it is difficult to believe that the appellant was so inflamed with passion as to demand sexual intercourse with the deceased who

1 (1976) 4 SCC 343

16 happened to be the wife of his cousin, and that too, not while she was alone, but in the presence of her husband. Even if he was mad with lust, he would not have chosen to come at this particular time, namely, 9 p.m. for making advances to the deceased, when he must have known that her husband Natesan would in all probability be at home. In any event, when Natesan came into the house, the appellant would have run away and not continued to insist that the deceased should submit to sexual intercourse with him. The entire story appears to be highly improbable and inconsistent with the ordinary course of human nature. Then again, look at the conduct of Natesan on seeing this highly explosive situation. He finds that the appellant is demanding sexual intercourse with his wife and is threatening her with a knife in his hand. And yet, he does not step out of the house and shout for help. He does not even try to go to the rescue of the deceased. He silently and shamefacedly watches his wife being murdered by the appellant. He is not alone in the house. Manisekaran has come in the meantime, with the result that there are two persons on his side and yet, both of them quietly watch the proceedings without making any attempt to save the deceased. This conduct is highly unnatural and we find it difficult to accept it.

5. It may be noted that Manisekaran's presence at the time of the incident is rather unusual. Manisekaran was, according to his evidence, working as an apprentice in the tailoring shop of Natesan, and it is difficult to believe that he should have been at the house of Natesan at 9 p.m. after the tailoring shop was closed. Manisekaran was admittedly not staying with Natesan. He was living in a house which was a little distance away from the house of Natesan. He would ordinarily go back to his house after the tailoring shop was closed. But, in order to make Manisekaran an eyewitness, the prosecution came forward with the story that he was sent by Natesan with edibles for his children at 8.15 p.m. This is a tall story which is difficult to believe. There is no reason why at 8.15 p.m. Manisekaran should have been asked by Natesan to purchase edibles from the market and carry them to the house for the children. In all probability the children would have finished their meals. Even if Manisekaran carried edibles to the house of Natesan, there is no reason why he should have waited there for half an hour from 8.30 p.m. to 9 p.m. in order to be able to witness the incident. It is again strange and unusual that though Manisekaran saw the appellant stabbing the deceased, he did not utter any shout or attempt to run out of the house for the purpose of seeking help for the deceased. We are not at all satisfied that Manisekaran was an eyewitness to incident and his testimony cannot be relied upon for the purpose of supporting the conviction of the appellant.”

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33. The so-called eye witnesses, Ram Prakash(PW-1) and Ram

Naresh(PW-5) were the closest relatives of the victim. They

allegedly saw the fatal assault on the victim and yet did not take

any step to save him from the assault. If these witnesses PW-1

and PW-5 had actually seen the assault, their reaction and

conduct does not match up with the reaction expected from them.

Their conduct is highly unnatural, and we find it difficult to accept

their presence at the crime scene.

34. Further, it is evident from the testimony of Ram Prakash(PW-

1) that there is a gap of 3 to 4 houses between the house of Ram

Naresh(PW-5) and the house of accused Omkar which makes it

clear that the estimated distance between the two locations would

be more than 30-40 ft. The Site Inspection Plan(Exhibit P-12) also

fortifies our conclusion. Both the witnesses, PW-1 and PW-5

admitted the fact that the roof of accused Omkar was not visible

from the courtyard of Ram Naresh(PW-5) in their evidence as we

have elaborated above. In this background, we have no hesitation

in holding that the so called eye witnesses, PW-1 and PW-5, who

were unquestionably standing or moving at the ground level could

18 not have seen the gunshots being fired at Sanju(deceased) from the

roof of Omkar’s house.

35. Sultan Singh(PW-2) admitted that he was working in his field

when the incident took place and thus, there was no possibility

that, he could have seen the incident with his own eyes. But

despite that, the prosecution tried to project him as an eyewitness

of the incident which again creates a grave doubt on the

truthfulness and bona fides of the prosecution story.

36. Resultantly, we have no doubt in our mind that neither of the

so called eye witnesses i.e., Ram Prakash(PW-1), Sultan Singh(PW-

2) and Ram Naresh(PW-5) had actually seen the gunshots being

fired at Sanju(deceased). As a matter of fact, the entire sequence

of events as narrated by prosecution witnesses does not inspire

confidence.

37. Indisputably, Sanju received a single gunshot injury which

proved fatal. Considering the significant disparities and

discrepancies in the evidence of Ram Prakash(PW-1) and Ram

Naresh(PW-5) regarding the identity of the assailant who actually

fired at Sanju(deceased), we feel that the conviction of accused

appellant Jagvir Singh on the basis of such flimsy and wavering

evidence is not at all justified. The trial Court as well as the High

19 Court committed glaring error while holding that Ram

Prakash(PW-1), Sultan Singh(PW-2) and Ram Naresh(PW-5) were

eyewitnesses to the incident and that they saw the accused

appellant along with accused Omkar firing at Sanju(deceased).

These findings are unsustainable on the face of the record in view

of the analyses and discussion of evidence made above.

38. Consequently, the appellant deserves to be acquitted giving

him the benefit of doubt. Hence, the judgment dated 25th

November, 2003 and order of sentence dated 27th November, 2003

passed by the trial Court and judgment dated 10th May, 2019

passed by the High Court are hereby quashed and set aside.

39. The appellant is acquitted of the charges. He is in custody

and shall be released from the prison forthwith, if his custody is

not required in any other case.

40. The appeal is accordingly allowed.

41. Pending application(s), if any, shall stand disposed of.

………………….……….J. (B.R. GAVAI)

………………………….J. (SANDEEP MEHTA) New Delhi;

May 07, 2024

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