Ravi Mandal vs State of Uttarakhand

HELD: 1. 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 of informant’s son was found in a forest. 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. Whereas, according to PW-1 the police informed him that his son’s dead body has been found in the forest and thereafter, he went to the spot, brought the body to the police station and then lodged the report. This cleavage in the testimony of prosecution witnesses is important because it would throw a question as to whether the prosecution case is based on informant’s own knowledge and information or on suggestions/guess work, may be at the instance of the police. [Para 19][18-H; 19-A-C]

2. 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. Such evidence is forthcoming from two witnesses, namely, PW-2 and PW-5. 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. Hence, this Court is to examine whether 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 ‘R’ and ‘S’ 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 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. 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, the explanation offered by him for the delay in making disclosure is not confidence inspiring. [Paras 22-24[[20-E, G; 21G-H; 22-A-B]

3. Further, the presence of PW-2 at the spot does not appear natural, particularly, at that odd hour of the night. To explain his presence at the scene of crime, PW-2 stated that his parents stay at another place, and therefore, to meet them he visited them that fateful night and on way 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 a week. According to PW2, that fateful night he left his house to visit his parents after having dinner in his own house and on way return, at 0030 Hours he witnessed the incident. This explanation is not confidence inspiring, particularly, because his parents have not been interrogated or examined to corroborate PW-2’s visit to their house at that odd hour of the night. In view of this Court, 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., for more than three and a half months, his testimony is not worthy of any credit. In view of this Court, the courts below erred by placing reliance on his testimony. [Para 25][22-B-E]

4. As regards the testimony of PW-5, 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. The explanation offered by PW-5 for his presence at the spot at that odd hour appears false. According to PW-5, he was having an upset stomach, therefore, while watching a night show of a movie, to attend to nature’s call, he came out of the cinema hall and, while he was easing himself, he got the chance to witness the incident. 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. This falsifies the explanation of PW-5 that he went out of the cinema hall to ease himself because cinema hall charged money for use of the toilet. Otherwise also, PW-10 in his deposition had stated that he was not shown the place where PW-5 squatted to ease himself. [Paras 26-27][22-F-H; 23-A-C]

5. 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 ‘G’ along with two accused persons by stating that all three were present with the deceased but, during his deposition in Court, he stated that ‘G’ 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. [Para 28][23-C-D]

6. Another important feature of the case is that, according to PW-10, 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. This Court finds 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 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. [Para 29][23-D-F]

7. Upon evaluation of the testimony of PW-2 and PW-5 carefully and with due caution, as is required in the facts of the case, their testimony does not inspire our confidence as to sustain the conviction. Unfortunately, the courts below accepted the same as gospel truth, without testing it on the anvil of settled legal principles, thereby resulting in grave miscarriage of justice. This Court, therefore, conclude that the prosecution has failed to prove beyond reasonable doubt that the deceased was last seen alive in 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 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, 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. 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 affected 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 ‘S’ 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 ‘S’, this Court is of the view that the police had shown extraordinary interest in implicating ‘S’ and therefore, for all the reasons above, the alleged recovery of gun and knife shown from the appellants does not inspire our confidence. In considered view of this Court, it would be unsafe to rely on such recovery to sustain the conviction. Insofar as forensic report/ballistic report is concerned, the same has not even been put to ‘S’, 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. [Paras 31-32][24-B-G]

9. On putting the prosecution evidence to strict scrutiny and testing the same on the anvil of settled legal principles as discussed above, this Court finds the evidence not confidence inspiring as to uphold the conviction of the accused appellants. The courts below have failed to properly evaluate and test the evidence by applying the correct legal principles. In such circumstances, the judgments of the courts below are liable to be set aside. The appellants are acquitted of all the charges for which they have been tried and convicted. [Para 33][25-A-C] Kali Ram v. State of Himachal Pradesh (1973) 2 SCC

808 : [1974] 1 SCR 722; Rajesh Yadav & Another v. State of Uttar Pradesh (2022) 12 SCC 200; Jarnail Singh & Others v. State of Punjab (2009) 9 SCC 719 : [2009] 13 SCR 774 – referred to.