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TMI Blog2023 (7) TMI 1416X X X X Extracts X X X X X X X X Extracts X X X X ..... Code") was rejected and in consequence the Government Appeal was dismissed. Introductory Facts 2. In the night/late evening of 24.06.1987, one Raj Kumar Baliyan (in short, "the deceased") was killed. A first information report (FIR) was lodged by Pramod Kumar Tyagi (PW-6) alleging, inter-alia, that while he and Sudeep (PW-3), on one Scooter, and Raj Kumar Balyan (the deceased) on another Scooter, were travelling from Muzaffarnagar to Meerapur to attend a marriage, near Bhatoda turn, at about 9.30 pm, in the light of the Scooter, they saw three policemen standing on the road. One of them had a Danda (stick) whereas the other two were carrying rifles. The person who had the Danda flashed a torch light on them. As a result, they lost control of their respective scooters, which skidded and fell. One of the policemen exhorted to shoot to kill. In consequence, shots were fired hitting the deceased, who collapsed at the spot. PW-3 and PW-6, however, managed to escape to the village. On information, villagers arrived at the scene of crime and so did the police. In the presence of police the deceased was rushed to the hospital but he succumbed to his injuries on the way. Thereafter, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ali (the respondents herein) for committing offence punishable under Section 302 read with Section 32 I.P.C. The accused pleaded not guilty and claimed trial. 5. During the trial, the prosecution examined 33 witnesses and produced various documentary evidences with regard to GD entries, seizure memos, site plan, forensic reports, autopsy report, etc. Various material exhibits such as articles seized during investigation were produced and exhibited during trial. 6. After closure of prosecution evidence, the incriminating circumstances appearing in the prosecution evidence were put to the accused for recording their statement under section 313 of the Code. In their statement, under section 313 of the Code, the accused denied the incriminating circumstances appearing against them and claimed that they have been falsely implicated and made scapegoat. Nature of the Prosecution Evidence 7. The prosecution sought to bring home the charge against the aforesaid three accused by leading evidence to the following effect: - (i) On the date, time and place of the incident, the three accused were on a picket duty as reflected by the GD Entries made at the police station concerned; (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an attempt to set up a false narration of the incident vide Case Crime No.48A of 1987. 11. In respect of some of the empty cartridges matching with service rifles of the accused, the trial court noticed that out of four .303 cartridges recovered from the scene of crime, one was fired from the rifle of accused Anil, one from the rifle of accused Shyam Bihari whereas the remaining two cartridges were not fired from service rifles of any of the three accused persons. Thus, it was not clear from the prosecution evidence as to from whose rifle the remaining two bullets were fired. This discrepancy, according to the trial court, rendered the prosecution version against the accused doubtful because there could be the hand of some other person also. 12. In addition to the above, the trial court noticed from the autopsy report that the gun shot injury sustained by the deceased was not from a rifle bullet but from a .12 bore weapon which was not recovered from any of the accused persons. Hence, even if rifle bullets were found at the spot, they were not the ones from which injuries were caused to the deceased. As regards the cross version of the incident (i.e. Case Crime No.48A/87), no ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area, as per evidence brought on record. Soon after the incident these constables were found present at the spot. Hence, their presence at the scene of crime was confirmed not only by eye witnesses but also by circumstances including the fact that certain empty cartridges recovered from the spot were fired from their service rifles. Thus, not only their presence was proved but another version of the incident i.e. Case Crime No.48A of 1987, depicting police action, confirmed that death was a consequence of police action. Therefore, the burden was heavy on the accused to explain these incriminating circumstances and in absence whereof, an adverse inference ought to have been drawn against the accused persons. 19. It was also argued that even if PW-3 and PW-6 could not identify the accused persons, they corroborated the prosecution story with regard to the manner in which the incident occurred and, therefore, their testimony could be used to corroborate the testimony of PW-15, who not only narrated the incident but could recognize and identify the accused persons. 20. Thus, according to the learned counsel for the appellant, the trial court's verdict was perverse and rejection of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a chain so far complete as to indicate that in all human probability it were the accused and no one else who committed the crime. Rather, there existed circumstances, proven on record, such as the presence of few empty cartridges at the spot which were not fired from rifles issued to the three accused, which indicated the presence of some other person also and possibility of the incident occurring in some other manner than set out by the prosecution. 24. Highlighting all the above points, the learned counsel for the respondents submitted that this is not a case where the judgment and order of the High Court be interfered with. Analysis 25. We have considered the rival submissions and have perused the record. 26. At the outset, we may observe that no doubt the judgment and order of the High Court appears a bit cryptic but that by itself need not be a ground for us to set aside the order and remit the matter to the High Court, particularly, when we have the relevant record to assess the merit of the prosecution case. More so, because the incident is of the year 1987 and the appeal has remained pending since more than a decade. In such circumstances, if we remit the matter to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de on an affidavit prepared by a lawyer, who simultaneously prepared three affidavits identically worded. The trial court noticed all these facts as also that PW-15 was lying when he stated that he went alone to get the affidavit prepared. The trial court also noticed that all the three affidavits were prepared on stamp papers, consecutively numbered, bought from the same vendor and the affidavits were sworn in quick succession giving rise to a definite conclusion that they were prepared by an advocate. The trial court also noticed that the conduct of PW15 was a bit unusual in the sense that he made no disclosure to anyone including the father of the deceased yet, he straightaway went to swear and dispatch an affidavit by post to a higher officer of the police even though, by that time, the investigation had been transferred to the CB-CID from the local police and, therefore, there was no threat from the local police. In these circumstances, if the trial court discarded the testimony of PW-15, in our view, the same was justified. 30. Adverting to the proven circumstances, what transpires is that the witnesses are consistent that there was a police action on that fateful night. Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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