RAVI MANDALversusSTATE OF UTTARAKHAND

                          [2023] 7 S.C.R. 1                              1


                          RAVI MANDAL                                    A
                                  v.
                   STATE OF UTTARAKHAND
                 (Criminal Appeal No. 511 of 2011)
                           MAY 18, 2023                                  B
       [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 of
deceased) after founding dead body of his son at 0730 hours on
                                                                         C
01.11.2001 in a 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 convicted
by the Trial Court u/s.302 r/w. s.34, s.201 of IPC and ss. 4/25 of the
Arms Act – Trial Court relied on testimonies of PW-2 and PW-5 to
conclude that deceased was last seen alive in the company of the         D
accused persons – Trial Court also noticed that as per FSL report
the empty cartridge recovered from the spot was fired from the same
pistol which was recovered from ‘S’ – High Court confirmed the
conviction – On appeal, held: According to the testimony of police
witnesses, it was the informant who gave information to the police
                                                                         E
about his son’s dead body – Whereas, according to PW-1 the police
informed 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 the
forest – FIR did not name any witness who had seen the deceased
with accused persons – Further, ‘S’ was not named as accused in
FIR at the first instance and was only arrayed at later stage –          F
Explanation offered by PW-2 is delayed disclosure – Similarly,
explanation offered by PW-5 for his presence at the spot at the odd
hours appears false – There is contradiction in PW-5’s statement
made u/s. 161 and in his deposition before the Court as to presence
of ‘G’ with deceased – Therefore, the testimony of PW-2 and PW-5
                                                                         G
does not inspire confidence – Forensic report/ballistic report were
not 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 as
to uphold the conviction of the accused-appellants – Thus, impugned
judgments and orders of the Trial Court set aside.
                                                                         H
                                  1
2            SUPREME COURT REPORTS                      [2023] 7 S.C.R.


A          Witnesses – Chance witness – Reliability of – Held: The law
    is settled, which is, 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
    chance witness whose presence at the place of incident remains
    doubtful should be discarded.
B
          Allowing the appeals, the Court
          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
C   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
D   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;
E   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
F   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
G   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
H   incident, he noticed their hands and clothes blood stained. On
        RAVI MANDAL v. STATE OF UTTARAKHAND                             3


spotting PW-2, those two accused threatened him by saying that          A
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
                                                                        B
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; 21-
G-H; 22-A-B]
        3. Further, the presence of PW-2 at the spot does not appear    C
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             D
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           E
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       F
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     G
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
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4           SUPREME COURT REPORTS                      [2023] 7 S.C.R.


A   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
B
    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
C   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
D   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]
E
          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
F   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
G   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
H   case, their testimony does not inspire our confidence as to sustain
        RAVI MANDAL v. STATE OF UTTARAKHAND                            5


the conviction. Unfortunately, the courts below accepted the same      A
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.
                                                                       B
[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          C
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     D
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       E
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       F
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   G
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
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6            SUPREME COURT REPORTS                      [2023] 7 S.C.R.


A   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
B   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
C   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
D         Singh & Others v. State of Punjab (2009) 9 SCC 719 :
          [2009] 13 SCR 774 – referred to.
                          Case Law Reference
    [1974] 1 SCR 722                 referred to             para 23
E   (2022) 12 SCC 200                referred to              para 26
    [2009] 13 SCR 774                referred to              para 26
         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No.511 of 2011.
F         From the Judgment and Order dated 07.04.2010 of the High Court
    of Uttaranchal at Nainital in CRLA No.54 of 2004.
          With
          Criminal Appeal No.2345 of 2011.

G         Gopal Jha, Adv. (Amicus Curiae), Ms. Ankita Gautam, Dr. A.K.
    Gautam, Ravi Mehrotra, Nitin Juyal, Ashok Mathur, Sanket, Ms. Babita
    Sant, Advs. for the Appellant.
          Jatinder Kumar Bhatia, Krishnam Mishra, Param Kumar Mishra,
    Rajeev Kumar Dubey, Ashiwan Mishra, Kamlendra Mishra, Advs. for
    the Respondent.
H
         RAVI MANDAL v. STATE OF UTTARAKHAND                                  7


       The Judgment of the Court was delivered by                             A
       MANOJ MISRA, J.
       1. These two appeals are against the judgment and order of the
High Court of Uttarakhand at Nainital (for short “the High Court”),
dated 07.04.2010, dismissing Criminal Appeals Nos.54 and 59 of 2004
filed against the judgment and order of Additional Sessions Judge/Fast        B
Track Court Haldwani, Nainital (for short “the Trial Court”) dated
28.01.2004, and, thereby, affirming the conviction and sentence awarded
to the appellants detailed below: (i) life imprisonment under section 302
read 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.          C
with fine of Rs.500/- under section 25 Arms Act to appellant Shabbir in
S.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 Ravi
Mandal in connected S.T. No.105 of 2002 (State vs. Ravi Mandal).
       Introductory Facts:                                                    D
       2. On 01.11.2001, Man Singh (PW-1), father of Chhotu @ Surjeet
(the deceased), on finding his son’s dead body in a forest, 150 meters
west of Government Inter College, lodged a first information report (FIR)
at P.S. Lalkuan, Haldwani, district Nainital at about 7.30 hrs, alleging
therein that, — on 31.10.2001, at about 2100 Hours, the deceased was          E
with his friends Govind and Ravi Bangali (later identified as Ravi Mandal);
Govind, a criminal, had been influencing his son to choose a wrong path;
therefore, he suspects that these persons have killed his son and concealed
his body in the forest. 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            F
fateful 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 of
the two accused, namely, the appellants herein, and disclosed recovery
of a 12 bore country made pistol with one live cartridge from Shabbir         G
and a knife from Ravi Mandal, giving rise to two separate cases against
each of the two accused under the Arms Act.
       4. On completion of investigation three charge sheets were laid
giving rise to three sessions trials which were connected with each other
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8               SUPREME COURT REPORTS                          [2023] 7 S.C.R.


A   and decided by a common judgment, which has been affirmed by the
    High Court.
          Prosecution Evidence:
           5. To appreciate the arguments advanced in this case, it would be
    apposite to notice the testimony of the prosecution witnesses in brief.
B   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. He, however,
C                 proved lodging of the FIR on 01.11.2001 and stated that, —
                  on 31.10.2001 in the evening Babloo (PW-7) came to his
                  residence, told him that the deceased, Ravi Bangali and
                  Govind were asking for food and have sent him to fetch
                  food for them; on that request, PW-1’s wife (Urmila Devi-
                  PW-3) cooked food, packed it and gave it to Babloo, who
D                 left with the food; next day, he came to know that dead
                  body of his son was lying in the forest; he then visited the
                  place, brought the dead body to Lalkuan Police Station and
                  lodged the report; later, when he came to know that Govind
                  was not with his son, rather it was Shabbir along with others
E                 who were there, he gave the second report (Ex. Ka-2) to
                  the police on 10.11.2001. During cross examination, PW-1
                  admitted that there were three or four criminal cases against
                  his son (the deceased) wherein, he was on bail.
                      With regard to the sequence of events on the date of
                  lodging the FIR, PW-1 stated that, — a constable with two
F
                  men came in the morning to inform him that dead body of
                  his son is lying in the forest; on getting the information he
                  went to that place and brought the body to the police station
                  to lodge the FIR whereafter, the body was sealed and sent
                  to Haldwani Hospital for autopsy. He also stated that papers
G                 relating to recovery of tiffin box; collection of blood-stained
                  earth etc. were prepared at the police station and he signed
                  those papers at the police station itself. PW-1 also clarified
                  that the second report (i.e. Ex. Ka-2) was dictated by the
                  Sub-Inspector at the police station and he wrote whatever
                  was told to him.
H
  RAVI MANDAL v. STATE OF UTTARAKHAND                               9
           [MANOJ MISRA, J.]

         At the fag end of his cross-examination, PW-1 stated       A
     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.
(ii) PW-2 - Chandan Singh
         He deposed that, — (a) he knew Shabbir Ahmad and           B
     Ravi Mandal; (b) they had come to his shop with the
     deceased at about 1900 Hours on 31.10.2001 and from there
     they proceeded towards the cinema hall; (c) later, in the
     night of 31.10.2001/ 01.11.2001, at about 0030 Hours, he
     saw the accused-appellants emerging from the forest and        C
     walking 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 any
     one, he would meet the same fate as Chhotu (the
     deceased); (f) next day morning, PW-2 learnt that dead         D
     body of Chhotu has been found in that forest.
         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    E
     his 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 shop
     is run from a room in his house; it remains open from 0500
     Hours till 2300 Hours; his house comprises of 3 rooms          F
     where he resides with his wife and five sons; the usual
     time of his dinner is 2100 Hours.
         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. This suggestion was denied by
                                                                    G
     PW-2.
        With regard to the delay in giving information to the
     police, PW-2 stated that he was petrified by the incident
     and when the accused were arrested, he could muster
     courage to make his statement. During cross-examination,
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10     SUPREME COURT REPORTS                            [2023] 7 S.C.R.


A          PW-2 admitted that he had been arrested under section 60
           of the Excise Act and is on bail. He feigned ignorance to a
           suggestion that his bail bonds were arranged by parents of
           Chhotu.
     (iii) PW-3 – Urmila Devi-Mother of the deceased
B             She proved that on 31.10.2001, Babloo (PW-7), who
           use to work at the cinema hall, came to her house to fetch
           food for the deceased, consequently, food was cooked and
           supplied by her.
              During cross examination, she denied being a surety for
C          the bail of Chandan (PW-2). However, she admitted that
           Chandan used to visit her house.
     (iv) PW-4 – Smt. Mithilesh (Wife of Govind)
               PW-4 did not depose anything specific about the incident
D          except that Shabbir had enmity with her husband and 8 to
           10 days before the murder of Chhotu, Ravi Bangali and
           Shabbir had called her husband; in consequence, her
           husband left, but did not return thereafter; later, she received
           information from the police that her husband has been killed
           and the culprits caught.
E
               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. She also
           admitted that the police made no enquiry from her and she
F          did not lodge any complaint in respect of her husband’s
           murder.
     (v) PW-5 – Mahendra Khurana
               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
G          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
H          account with Chhotu as he had become a nuisance for them
  RAVI MANDAL v. STATE OF UTTARAKHAND                                    11
           [MANOJ MISRA, J.]

      on account of his persistent demand for money. PW-5 stated         A
      that he did not disclose this fact to anyone in the night but in
      the morning, he came to know that Chhotu has been
      murdered.
          During cross examination, he admitted that though toilet
      facility is available in the cinema hall but, on charge;           B
      therefore, he went out to ease himself. He stated that his
      statement was recorded in the morning, following the night
      of the incident; and for that purpose, he was called by the
      constable. On being confronted with his previous statement
      that he saw Govind, Chhotu, Ravi Bangali and Shabbir going
      towards the forest, PW-5 stated that he had disclosed the          C
      name of all, except Govind. He, however, admitted that he
      did not disclose to the police the place where he sat that
      night to ease himself.
(vi) PW-6 – Hanuman Prasad
                                                                         D
          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. He denied having seen Shabbir            E
      firing at the deceased. At this stage, the prosecution declared
      him hostile and sought his cross examination.
          During cross examination by the prosecution, he denied
      that he gave a statement before the police about Shabbir
      shooting his companion and Ravi holding his leg.                   F
         During cross examination by the defence, he stated that
      he had not seen the incident and he had also informed the
      police that he had not seen the incident.
(vii) PW-7 – Babloo
                                                                         G
         He stated that, — on 31.10.2001, he met Chhotu at the
      gate of cinema hall; Chhotu asked him to get food for him
      from his residence; at that time, no one was present with
      Chhotu. PW-7 stated that he came to the residence of
      Chhotu, took food and brought it in three boxes but when
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12         SUPREME COURT REPORTS                          [2023] 7 S.C.R.


A            he reached there with the food, he saw no one, therefore,
             he kept the food there. Next day morning, he came to know
             that Chhotu has been killed. At this stage, the prosecution
             declared him hostile and sought permission for his cross
             examination.
B                During cross examination by the prosecution, PW-7
             admitted his signature on paper No.3/15 which was marked
             Ex. Ka-6. He also admitted that he gave a statement to the
             sub-inspector but denied that he saw Chhotu in the company
             of Shabbir and Ravi Bangali on 31.10.2001.
C                During cross examination at the instance of defence,
             PW-7 stated that he used to sell chana (gram) at the cinema
             hall; the cinema hall had toilets and no money is charged
             for use of those toilets. He also stated that during the course
             of investigation of this case, the police had beaten him and
             had detained him in the police lock-up for three days.
D
     (viii) PW-8 – Dr. Anil Chandra K Sah (Autopsy surgeon)
                 He proved the autopsy report and stated that death of
             the deceased was due to shock and haemorrhage as a result
             of ante mortem gunshot.
E    (ix)    PW-9 – Sub-Inspector Nanhe Lal (Investigating Officer of
             the cases under the Arms Act)
                 He proved the inquest report (Ex. Ka-7A) and autopsy
             related papers (Ex.K-8 to K-10). He also proved various
             stages of investigation of case crime No.756/01, under
F            section 25 of Arms Act, and case crime No.757/01, under
             section 4/25 of Arms Act, as also submission of charge
             sheet and obtaining of sanction for prosecution under the
             provisions of the Arms Act.
                During cross examination, PW-9 stated that on
G            06.12.2001 he prepared site plan of the place from where
             the accused were arrested and weapon was recovered.
             He sought to explain the delay in preparation of the site
             plan by stating that he was busy with other matters.
     (x)     PW-10 – SI Pramod Kumar Shah (Investigating Officer of
H            the murder case)
RAVI MANDAL v. STATE OF UTTARAKHAND                                     13
         [MANOJ MISRA, J.]

      He proved — registration of the FIR; visiting the spot            A
  with PW-9; inspection of the spot; preparation of site plan
  (Ex.Ka-15); lifting of: blood stained soil/plain soil, vide seizure
  memo 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
                                                                        B
  — complainant Man Singh (PW-1), Babloo (PW-7) and
  Mahender Khurana (PW-5); preparation of custody memo
  of 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 application
  by Man Singh on 10.11.2001; and submission of charge                  C
  sheet (EX.Ka-16). He also produced material exhibits etc.
  In addition to the above, he stated that accused Shabbir
  and Ravi Mandal were absconding, therefore, application
  to draw proceedings under section 82 of the Code of
  Criminal Procedure, 1973 (for short “Cr.P.C.”) was moved.
                                                                        D
  Thereafter, on 24.11.2001 at 1530 Hours accused Shabbir
  and Ravi Mandal were arrested with a 12 bore country
  made pistol and knife respectively. He proved the arrest
  memo as Ex. Ka-17.
      PW-10 stated that on 15.01.2002 the country made pistol,
  empty cartridge recovered from the spot and live cartridge            E
  seized at the time of arrest were sent to Forensic Science
  Laboratory (FSL), Agra for examination and its report has
  been submitted, as per which, EC-1 (empty cartridge found
  near the dead body) was fired from the pistol which was
  recovered from Shabbir. During cross examination, at the              F
  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                  G
  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               H
14   SUPREME COURT REPORTS                         [2023] 7 S.C.R.


A      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
B
       twice, one on 03.11.2001 and the other on 05.12.2001. PW-
       10 also stated that on their arrest Shabbir and Ravi had
       confessed that before killing Chhotu, they had killed Govind.
           PW-10 further stated that statement of Mahender
       Khurana (PW-5) was recorded on 01.11.2001 at his
C      residence; and PW-5 had not disclosed the place where he
       sat to ease himself that fateful night.
           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
D      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
E      the accused persons coming and were accordingly arrested.
       PW-10 accepted that he did not try to rope in any public
       witness because the spot where arrest was effected was
       200 meters away from the locality. PW-10 also stated that
       the site plan of the place of arrest and recovery was prepared
       on 06.12.2001 at his instance. PW-10 denied the suggestions
F      that, — the dead body was brought by the complainant to
       the police station; the second complaint (Ex.Ka-2) was got
       written at his instance; and the accused were falsely
       implicated by preparing false documents while sitting at the
       police station.
G          PW-10 admitted that, — the deceased had criminal
       antecedents and had gone to jail many times; Mahender
       Khurana (PW-5) had not come to him for getting his
       statement recorded, rather PW-10 went to his house to
       record his statement; Mahender Khurana’s statement was
H      recorded four hours after information was provided by Man
         RAVI MANDAL v. STATE OF UTTARAKHAND                                  15
                  [MANOJ MISRA, J.]

             Singh (PW-1) on 01.11.2011; Mahender Khurana in his              A
             statement had told that Govind was also present.
     Statement under section 313 of the Criminal Procedure
Code, 1973 (Cr.P.C.):-
      6. In his statement recorded under section 313 Cr.P.C., Ravi
Mandal denied the incriminating circumstances put to him. He also denied      B
recovery of the knife and claimed that nothing incriminating was recovered
from his possession. However, he led no evidence in defence.
       7. Similarly, Shabbir Ahmad in his statement under section 313
Cr.P.C. denied the incriminating circumstances appearing against him
and stated that nothing incriminating was recovered from his possession.      C
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.
      Trial Court Findings:-
                                                                              D
       8. The Trial Court relied on the testimonies of PW-2 (Chandan
Singh) and PW-5 (Mahendra Khurana) to conclude that the deceased
was last seen alive in the company of the accused going towards that
forest/place from where body of the deceased was recovered; that PW-
5 heard noise of gunshot coming from the forest soon after the deceased
and the two accused entered that forest and, soon thereafter, saw the         E
accused exiting that place minus the deceased. This, according to the
Trial Court, was a clinching circumstance. 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,
                                                                              F
next day morning, dead body of the deceased was recovered. The Trial
Court noticed that there was no dispute with regard to the presence of
moonlight on that night and there was no challenge to the capacity of the
witnesses to identify the accused and the deceased. The Trial Court
also noticed that as per FSL report the empty cartridge recovered from
the spot was fired from the same pistol which was recovered from the          G
possession of Shabbir. And since the autopsy report had confirmed that
death of the deceased was caused by use of firearm, the Trial Court
concluded that it was proved beyond doubt that the accused persons
had committed murder of the deceased and to hide the evidence dumped
the body of the deceased in the forest. They were thus convicted and
sentenced accordingly.                                                        H
16             SUPREME COURT REPORTS                            [2023] 7 S.C.R.


A          High Court Findings:-
           9. The High Court upheld the conviction upon finding the
     prosecution evidence reliable and corroborative of each other.
            10. We have heard Ms. Ankita Gautam for the appellant Ravi
     Mandal; Mr. Gopal Jha, learned Amicus Curiae, for Shabbir; and Mr.
B    Jatinder Kumar Bhatia for the State of Uttarakhand, and have perused
     the record.
           Submissions on behalf of the appellant Ravi Mandal:-
            11. 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
C    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. Babloo (PW-7) though disclosed that on
     31.10.2001 he met Chhotu (the deceased) but he did not depose about
     any of the two accused being with him. Insofar as the testimony of PW-
D    2 (Chandan Singh) is concerned, no reliance is to be placed on it as he is
     not a witness arrayed in the chargesheet and there is no cogent explanation
     as to why he did not make a disclosure earlier. Moreover, he is a chance
     witness whose presence at the spot finds no proper explanation. 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. And
E    insofar as PW-6 is concerned, he has been declared hostile. Thus, there
     is no reliable evidence of the deceased being last seen alive with the two
     accused.
            12. In addition to the above, it was argued that the testimony
     regarding recovery of weapons from the accused does not appear
F    convincing as there is no public witness to it; the site plan of the place of
     arrest and recovery was prepared several days after the alleged recovery
     which would suggest that there existed no place of recovery and arrest
     but, as an after thought, to complete the formality, the site plan was
     prepared.
G           13. It was also argued that there is material discrepancy in the
     deposition of witnesses as to whether the FIR was lodged before, or
     after the dead body was brought to the police station. The statement of
     PW-1 suggests that he was informed by the police about his son’s body
     being found, whereupon he went to the spot and brought the dead body
     to the police station to lodge the FIR; whereas, police witnesses state
H
         RAVI MANDAL v. STATE OF UTTARAKHAND                                 17
                  [MANOJ MISRA, J.]

that they proceeded to the spot after PW-1 had lodged the report and at      A
the spot they carried out inquest proceeding. It was urged that this
discrepancy creates doubt as to whether the prosecution case was
developed on guess work at the instance of the police. This doubt gets
doubled because the name of Govind appeared in the first written report.
And when it was found that Govind had already expired, the name of
                                                                             B
Govind was substituted with Shabbir. It was argued that from the evidence
led, it is clear that the deceased was a person with criminal antecedents
and therefore, could have had several enemies. 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. It was urged that the         C
Trial Court and the High Court did not properly test the prosecution
evidence and, therefore, the judgments of the two courts below are liable
to be set aside.
      Submissions on behalf of the appellant Shabbir:-
       14. The learned Amicus Curiae representing Shabbir adopted the        D
submissions made by the learned counsel representing appellant Ravi
Mandal and added that Shabbir was not named in the initial report. The
statement of the witnesses would suggest that money was lent to Govind.
Chhotu (the deceased) was demanding his money back from Govind
and therefore, Govind had the motive. Consequently, on the basis of          E
suspicion, the name of Govind was mentioned but when it was found
that Govind is not traceable, or was possibly killed, Shabbir’s name was
substituted in place of Govind. In such circumstances, the implication of
Shabbir is shrouded in suspicion and the prosecution story insofar as it
relates to Shabbir, is not acceptable. The learned Amicus Curiae claimed
that the alleged recovery of country made pistol is bogus and false which    F
has no public witness to support. The ballistic report has also been
questioned on the ground that there is no explanation as to why the
country made pistol was not sent for forensic examination before
15.01.2002, when it was allegedly recovered on 24.11.2001. It was also
argued that the ballistic report has not been put to the accused while       G
recording his statement under section 313 Cr.P.C., hence it would have
to 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-       H
18            SUPREME COURT REPORTS                           [2023] 7 S.C.R.


A    1 and PW-3 have corroborated PW-7 by stating that the food was supplied
     for three persons including the deceased; and PW-2 and PW-5 have
     proved that they saw the deceased and the two accused together at
     around midnight near the place from where dead body of the deceased
     was recovered next day morning. Therefore, the chain is complete to
     nail the accused. It was argued that the defence has not been able to
B
     demonstrate that PW-5 and PW-2 were inimical to the accused. Hence,
     there is no reason for them to lie. Moreover, defence has not questioned
     the capacity of either PW-2 or PW-5 to recognise the accused and
     Chhotu. There is also no question put to PW-5 to doubt the presence of
     moonlight. All the witnesses have stated that it was a full moonlight and
C    there is no challenge to this statement. In such circumstances, the
     testimony of PW-5 is reliable. Consequently, the Trial Court and the
     High Court were justified in placing reliance on the same.
            16. 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
D    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.
            17. In respect of the testimony of PW-6, it was argued that he too
E    supported the prosecution case with regard to the deceased being with
     the accused that fateful evening; therefore, his testimony could be used
     to corroborate the testimony of other witnesses.
            18. 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
F    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,
G    leaving no room of doubt with regard to the guilt of the accused. Hence,
     the conviction recorded by the Trial Court, affirmed by the appellate
     court, calls for no interference.
           Discussion and Analysis:-
            19. We have considered the rival submissions and have perused
H    the records carefully. The striking feature of the case is that the FIR of
         RAVI MANDAL v. STATE OF UTTARAKHAND                                  19
                  [MANOJ MISRA, J.]

the case was lodged at 0730 Hours on 01.11.2001 after the dead body of        A
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
                                                                              B
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.                                                                   C
        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     D
in the FIR. No doubt, an FIR is not required to be an encyclopedia 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     E
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).
        21. The prosecution story which develops later is to the effect       F
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   G
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
                                                                              H
20                SUPREME COURT REPORTS                       [2023] 7 S.C.R.


A    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
B
     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),
C    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
D
     a degree of circumspection to ascertain whether it is credible, reliable/
     trustworthy and truthful, before basing a conviction thereupon.
             22. 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
E    near the place of occurrence on or about the probable time of occurrence
     i.e. around midnight of 31.10.2001/ 01.11.2001. Such evidence is
     forthcoming from two witnesses, namely, PW-2 (Chandan Singh) and
     PW-5 (Mahender Khurana). Insofar as PW-6 is concerned, we do not
     consider him reliable, because, firstly, he was set up as an eye witness
F    of Shabbir firing a gun shot at the deceased but he denied having witnessed
     such gunshot and, secondly, during cross examination, he stated that he
     had not seen the incident.
            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
G    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 Pradesh1, a three Judge bench of this Court, while discarding
     the testimony of one of the witnesses who made a delayed disclosure of
     1
H        (1973) 2 SCC 808
         RAVI MANDAL v. STATE OF UTTARAKHAND                                  21
                  [MANOJ MISRA, J.]

the incriminating circumstances of which he was aware much earlier,           A
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          B
       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           C
       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                D
       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            E
       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)     F
       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
                                                                              G
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       H
22               SUPREME COURT REPORTS                         [2023] 7 S.C.R.


A    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.
B
            25. Assuming that we accept the explanation for the delay in
     making the disclosure, considering the place and time of occurrence, 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 in Mohalla Khatta
C    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
     PW-2, that fateful night he left his house to visit his parents after having
D    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 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
E    kept silent for unusually long i.e. for more than three and a half months,
     his testimony is not worthy of any credit. In our view, the courts below
     erred by placing reliance on his testimony.
            26. As regards the testimony of PW-5 (Mahender Khurana) he
     too, is a chance witness. As to when testimony of a chance witness
F    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 Pradesh2; and, Jarnail Singh & Others v. State of
G    Punjab3.
            27. 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
     2
         (2022) 12 SCC 200
     3
H        (2009) 9 SCC 719
         RAVI MANDAL v. STATE OF UTTARAKHAND                                   23
                  [MANOJ MISRA, J.]

upset stomach, therefore, while watching a night show of a movie, to           A
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
                                                                               B
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 (the
investigating officer) in his deposition had stated that he was not shown
the place where PW-5 squatted to ease himself.
       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             C
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       D
another place he states that it was recorded at his shop.
       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 PW-5’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        E
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         F
police on suspicion rather than on information received from persons
conversant with the facts.
       30. For all the reasons above, when we evaluate the testimony of
PW-2 and PW-5 carefully and with due caution, as is required in the
facts of the case, we find that their testimony does not inspire our           G
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.
We, therefore, conclude that the prosecution has failed to prove beyond
                                                                               H
24            SUPREME COURT REPORTS                           [2023] 7 S.C.R.


A    reasonable doubt that the deceased was last seen alive in the company
     of the accused near the spot at the relevant time.
            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 —
B    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
C    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 effected
D    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
E    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
F    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.
            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
G    Cr.P.C., therefore, in any event, it would have to be eschewed from
     consideration.
            Conclusion:-
            33. In light of the discussion above, we are of the considered
     view that the case in hand is a quintessential case where to solve out a
H
          RAVI MANDAL v. STATE OF UTTARAKHAND                                       25
                   [MANOJ MISRA, J.]

blind murder, occurring in a forest in the darkness of night, bits and              A
pieces of evidence were collected which warranted a strict scrutiny
before basing a conviction thereupon. 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 our view, the courts
                                                                                    B
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. Consequently, the appeals are
allowed. The impugned judgment and orders of the High Court and the
Trial Court are set aside. The appellants are acquitted of all the charges
for which they have been tried and convicted.                                       C
       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, they
shall be released forthwith unless wanted in any other case.

Ankit Gyan                                                       Appeals allowed.   D
(Assisted by : Manish Tomar and Aarsh Choudhary, LCRAs)




                                                                                    E




                                                                                    F




                                                                                    G




                                                                                    H