UKHC010077542009

2026:UHC:7758- DB

Reserved on : 21 .07.2026

Delivered on : 31.08.2026

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No. 95 of 2009

Anil …… Appellant

Vs.

State of Uttarakhand

……Respondent

Presence:

Mr. S.S. Bhandari, Advocate for the appellant.

Mr. Siddhartha Bisht, AGA for the State.

With

Criminal Appeal No. 97 of 2009

Mohammad Imaran …… Appellant

Vs.

State of Uttarakhand

……Respondent

Presence:

Mr. R.S. Sammal, Senior Advocate assisted by Ms. Sarita Bisht,

learned counsel for the appellant.

Mr. Siddhartha Bisht, AGA for the State.

With

Criminal Appeal No. 98 of 2009

Wasif and Another …… Appellants

Vs.

State of Uttarakhand ……Respondent

Presence:

Mr. M.S. Pal, Senior Advocate assisted by Ms. Amreen Bano,

learned counsel for the appellants.

Mr. Siddhartha Bisht, AGA for the State.

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JUDGMENT

Coram: Hon’ble Ravindra Maithani, J.

Hon’ble Siddhartha Sah, J.

(Per: Hon’ble Siddhartha Sah, J.)

The present appeals have been received upon remand

from the Hon’ble Supreme Court vide judgment dated 18.09.2025,

passed in Criminal Appeal No. 736-738 of 2015. In the earlier round of

litigation, the judgment dated 02.05.2013, passed by this Court was

set-aside by the Hon’ble Supreme Court, and the matter was

remanded for fresh consideration. Consequently, upon remand, the

matter has been heard again and is being decided accordingly.

2. All these appeals are directed against the common

judgment and order dated 04.06.2009 / 05.06.2009, passed by

learned Additional District and Sessions Judge / I

st

Fast Track Court,

Haldwani, District Nainital in Sessions Trial No. 50 of 2003, “State vs.

Anil and others”, by means of which, the appellants Anil and Imran

were convicted under Sections 120-B, 302 read with Section 34, 307

read with Section 34, 328, and 394 of the Indian Penal Code,1860 (in

short, “IPC”). Appellants Pappu alias Sarvar and Wasif were convicted

under Section 411 of the IPC.

3. Appellants Anil and Imran were sentenced to undergo life

imprisonment under Section 302 read with Section 34 and Section

120-B of the IPC, along with a fine of ₹10,000/- each. They were

further sentenced to undergo 7 years' rigorous imprisonment under

Section 307 read with Section 34 of the IPC and a fine of ₹5,000/-

each; 5 years' imprisonment under Section 328 of the IPC; and 5

years' rigorous imprisonment under Section 394 of the IPC with a fine

of ₹5,000/- each.

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4. Appellants Pappu alias Sarvar and Wasif were sentenced

to undergo 1 year's imprisonment and a fine of ₹5,000/- each under

Section 411 of the IPC. In default of payment of fine, the appellants

were to undergo additional rigorous imprisonment of six months.

5. The case emanates out of an FIR which was registered

against appellants Anil and Imran at Police Station Haldwani, as Case

Crime No. 2028 of 2002, under Section 307 of the IPC, based on the

report (Exhibit A-1) lodged by informant Aditya Sharma with the

allegations that on 30.06.2002, the informant, along with his friend

Raj alias Raju, son of Suresh Pal, resident of Chirag Tola, Purana Gas

Ghar, Brij Niwas, Moradabad, came to Haldwani. Raj deals in the

supply of CDs. After alighting from the Roadways bus near Sargam

Talkies, Haldwani, Raj took him to a nearby shop whose shopkeeper's

name was Rawat. Raj gave him CDs and obtained a payment of

₹37,500/-, and along with Rawat came to Anil’s shop on Railway Road.

Raj made the informant sit there and went along with Anil to another

shop for taking payment. In Anil's shop, his brother Sohan Lal was

also present. Around 8:00 p.m., Anil returned and told Sohan Lal to

take the informant to a shop and tell Raj that he would come after

closing down the shop. Sohan Lal knew that shop and took the

informant on a scooter to Raj. Raj obtained a payment of ₹10,000/-

from that shop when Anil also reached there. Thereafter, Raj went on a

scooter with Sohan Lal to a shopkeeper by the name of Kishori and

told the informant to come along with Anil. After coming out of

the gali (lane), the informant and Anil also left in the car. The Maruti

car was being driven by Anil's friend, Imran. Anil dropped him at

Kishori’s shop. Anil told Raj that he had some work, and if his work

ends and he does not return, then they should meet at Bharadwaj

Hotel. When Anil did not return, both of them went to Bharadwaj Hotel

and waited for a long time. When Anil did not come, Raj brought two

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softies from a Softy kiosk. While Raj and the informant were eating

softies, Anil and Imran came in their car and told Raj to keep his

payment in the CD box. Raj kept ₹47,500/- in a black bag and packed

inside the box. Anil then told Raj to call his owner. Raj stated that he

would call after some time. But when Anil insisted again, then Raj

called on his employer’s mobile, but it was switched off. Raj then

phoned at his residence and informed that he was not getting a bus,

so he would return the next day. After that, Raj purchased a half

liquor bottle from the neighborhood. All four—Raj, the informant, Anil,

and Imran sat in the Maruti. Anil drove the car and took them to the

highway, where he stopped the Maruti in a corner and made pegs and

gave them to the informant and Raj. Two glasses, two Pepsi bottles

and namkeen had been bought and kept in the car by Anil without

telling them. Pepsi was mixed with the peg, and one was given to Raj

and one to the informant. After drinking the peg, Raj asked Anil to also

drink one peg. Anil replied that he had taken meals and he does not

consume liquor after meals. Raj told him that he consumes whole

bottle, so what would happen from one peg? Anil then said that he

would drink the last peg.

6. After that, the informant asked Raj, "Where are we going?"

Raj replied that they were being taken for a ride. After that, the

informant became unconscious. When he regained a little

consciousness, he saw that Anil was cutting his throat with a sharp-

edged knife. He tried to save himself, when his fingers and thumb got

cut, then he was thrown into a canal. When he tried to get up, a stone

was thrown at his head. Then the police arrived, seeing them, Anil and

Imran fled in the maroon car DDC 1066. The police personnel brought

him in an unconscious and injured state and got him treated at the

hospital. Till then, there are no whereabouts of his friend Raj. Anil and

Imran were searched at their shops, but they were not found. It was

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requested that report be registered and action be taken. The FIR was

registered on 01.07.2002 at 14:30 hours at Police Station Haldwani,

District Nainital as Case Crime No.2028/02 under Section 307 IPC

(Exhibit A-16). The FIR was entered in Thana Haldwani , District

Nainital vide GD entry No. 45 dated 01.07.02 at 14:30 hrs. (Exhibit A-

17).

7. It is the case of the prosecution that the

informant/injured, Aditya, underwent medical examination at S.S.

Jeena Base Hospital, Haldwani on 01.07.02 at 1:45 a.m., brought by

CP 171 Kanhai Singh. The injuries recorded in the Medical

Examination Report (Exhibit A-2) are as follows:

I. Incised wound of 6 cm x 0.3 cm. x skin deep over front of the

neck horizontal over front of neck just over thyroid cartilage,

wound is wider on the left side and narrow and superficial on

Right side fresh blood seen over it.

II. Lacerated wound of 3 cm x 0.3 cm x skin deep over top of the

scalp; fresh blood present over it.

III. Two incised wounds over the left palm:

1st measuring 2 x 0.5 cm. skin deep over the inner aspect of

the left thumb and

2nd of 3 x 0.3 cm skin deep over left ring finger, inner

aspect, fresh blood present over it.

IV. Abrasion of 3 x 2 cm. over the left index finger.

Opinion: All injuries are simple in nature. Injury Nos. 1 and 3

are caused by a sharp object; No. 2 and 4 are caused by

blunt, hard object fresh duration.

8. It is the further case of the prosecution as borne out from

statements of PW10 S.I. Shyam Singh that Anil and Imran were

arrested on 03.07.2002. On 03.07.2002, Imran led the police team to

the house of one Wasif, from where he handed over his share of money

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and CDs concealed there. On questioning, Wasif, disclosed that Imran

had given him money related to the offence and audio/video CDs,

which were recovered from a box inside his room, amount ing to Rs.

30,000/- and 150 audio/video CDs. Appellant Wasif was taken into

custody, and the recovered money and CDs were seized.

9. On 03.07.2002 itself, Imran and Anil led the police team

to the house of Pappu alias Sarvar, to whom they had given CDs and

money. Rs.16,900/- and 304 CDs (74 audio/video CDs) were

recovered from a sandook (trunk) inside the house of Pappu alias

Sarvar. He was arrested and the recovered money and CDs were taken

into police custody.

10. During the course of the investigation, a site plan (Exhibit

A-11) of the place of the incident where the informant/injured Aditya

was allegedly injured was prepared, as well as site plans (Exhibits A-

12 & A-13) of the houses where the money and CDs were recovered

from Pappu and Wasif were prepared.

11. It is the further case of the prosecution that on

05.07.2002, a dead body of a male was found in a canal at Anandpuri,

Talli Bamori. An inquest/Panchayatnama (Exhibit A-4) was prepared

at 8:30 a.m. In the opinion of the Panch witnesses, the dead body was

lying in the canal at Anandpuri, Mohalla Talli Bamori, and the cause

of death was unknown. The heading of the Inquest Report/

Panchayatnama was stated to be Panchayatnama of deceased Raj alias

Raju pertaining to Case Crime No. 2028 of 2002, under Sections 307,

364, 120-B, 201, 34, 411, and 326 of the IPC. The site plan (Exhibit A-

14) of the place of incident where the dead body of Raju alias Raj was

recovered was also prepared.

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12. Post-mortem (Exhibit A-3) on the body of Raju alias Raj

alias Rajpal was conducted on 06.07.2002 at 10:15 a.m. in which the

cause of death could not be ascertained, however, the viscera was

preserved.

13. During the course of investigation, the statements of the

informant/injured, Aditya Sharma, were recorded under Section 164

of the CrPC on 29.07.2002 before the Additional Chief Judicial

Magistrate, Haldwani, District Nainital. Upon completion of the

investigation, a charge sheet dated 21.08.2002 (Exhibit A-15) was

submitted against Anil, Imran, Wasif, and Pappu alias Sarvar under

Sections 302, 307, 364, 394, 326, 328, 201, 120-B, 411, and 34 of the

IPC.

14. The case was committed for trial and was registered as

Sessions Trial No. 50 of 2003 against Anil and others. On 08.07.2003,

the appellant Anil was charged under Sections 120B and 307 read

with 34 IPC, the appellants Pappu alias Sarvar and Wasif were

charged under Sections 120B, 411 IPC. Appellant Imran was charged

under Section 120B, 302 read with 34, 307 read with 34 and 394 IPC,

to which the appellants denied and claimed trial.

15. To prove its case, the prosecution examined Aditya

Sharma, the informant as PW1. In his examination in chief, the PW1

reiterated the FIR version by and large and inter-alia deposed that

when he regained consciousness, he saw that Anil was cutting his

throat. He tried to save himself and sustained injuries on his palm,

thumb, and fingers. Then he was thrown into the canal. When he tried

to get up, a stone was thrown at his head. When the police came,

seeing them, Anil and Imran fled in a car. The police personnel took

him in an unconscious state to the hospital and got him treated. He

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was beaten by Anil and Imran on the night of 30.06.2002, and on

01.07.2002, he gave a report of the incident to the Thana. He proved

the report, which was marked as Exhibit A-1. He identified Anil and

Imran in the court. He also identified the body of Raj alias Raju on

05.07.2002 from the purse and his visiting card. He signed the inquest

and identified his signatures on the Panchayatnama (paper No. 4/27).

16. In his cross-examination, PW-1 admitted that he came to

Haldwani for the first time with Raj, and he did not know prior to this

where Raj used to supply material and from where he used to collect

payments. He did not have any prior information and just had a

friendship with Raj. Raj had told him 2–4 days ago that he supplies

CDs and recovers payment. He did not know for how long Raj had

been working with Raju Kalra. He did not know what Raju Kalra used

to supply. He admitted that he had given a statement in the court.

17.

In his further cross-examination, PW1 Aditya Sharma

stated that he did not know the persons from before. He did not visit

jail to identify the appellants. The statements in his examination-in-

chief given before the District Judge, Nainital that when Anil and

Imran came in their car and told Raj to keep his payment in the CD

box then Raj kept Rs.47,500/- in a black bag in the box and packed in

it. These statements after the incident were also given before the

Magistrate, but he had told that there is no necessity to record these

statements. He denied the suggestion that he had not made the

statements before the Magistrate and after legal advice he stated the

same in his examination-in-chief. He had told the Magistrate that Anil

and Imran had made liquor peg, but said statement had not been

recorded by the Magistrate, he cannot tell its reason. He does not

remember that he and Raj had consumed liquor mixing Pepsi. He does

not remember whether he had told Magistrate this or not.

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18. According to PW1 Aditya Sharma, he does not remember

that he had given the statement that Raj and himself consumed Pepsi

mixed liquor. PW 1 Aditya Sharma denied the suggestion that Anil had

not beaten him. He also denied the suggestion that the injury on his

throat had been self-inflicted or by something. He also denied the

suggestion that to show his presence at the place of incident, he has

shown his fake presence. He also denied the suggestion that no

incident was committed upon him on the night of 30.06.2002. He also

denied the suggestion that he had made a false case on the pressure of

police and father of the deceased and he has given false statements.

19. PW-2 Surajpal is the father of the deceased Raj. He

deposed that his son Raj was working in the shop of Raju Kalra since

6–7 years. Raju Kalra had the business of audio, video and CD supply

and his son used to supply this material in different cities and used to

make recoveries from there. On 30.6.2002, his son Raj alias Raju told

his sister Kiran that he is going to Haldwani to supply material and for

taking payment. When till two days, Raj did not return, then inquiry

was made from his employer. Then he told that Raj did not return from

Haldwani and is missing from Haldwani. Then he came to Haldwani

with Raju Kalra, but even then could not know about him. On

05.07.2002, Raju Kalra again told him for going to Haldwani, then he

and Raju Kalra came to Haldwani Thana and came to know that the

body of his son has been found, and then they went to the hospital

and identified the body. Nothing material was there in the cross-

examination of this witness.

20. Raju Kalra was examined as PW-3. He deposed like PW-2.

Nothing material has come out in the cross-examination of this

witness.

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21. Dr. Nilambar Bhatt of Soban Singh Jeena Base Hospital,

Haldwani, District Nainital, was examined as PW-4 and he deposed

that on 01.07.2002, he was posted as Emergency Medical Officer in

Soban Singh Jeena Base Hospital, Haldwani. On that day at around

01:45 a.m., he conducted medical examination of Aditya, who was

brought to the hospital by CP 171 Kanhai Singh, Thana Haldwani. Age

of the injured was 19 years. In his examination, injuries were found on

his body which have already been mentioned hereinbefore. This

witness has also proved injury report Exhibit A-2.

22. In his opinion, all the injuries were simple in nature.

Injury nos. 1 and 3 were possible from sharp-edged weapon. Injury

nos. 2 and 4 were possible from some hard blunt object. All the

injuries were fresh. He proved the medical examination report, which

was marked as Exhibit A-2.

23. In his cross-examination, PW-4 stated that the injured

was brought by the Sepoy of the Thana, but whether they had brought

any memo or not, he does not remember. Memo is not in the file at

this time. He had not made any examination of the mental status of

the injured. Therefore, he cannot tell whether at that time the injured

was in an unconscious stage or in an intoxicated state, but the injured

had come before him walking. The injured had told his name and

address. He does not remember whether the mouth of the injured was

smelling of liquor or any other intoxication. If any person is in the

condition of excess intoxication or wavering or staggering, then its

mention is normally made in the medical examination report. He did

not ask the injured as to how he got the injuries on his body, nor he

told him about the cause of injuries. The injured was brought around

01:45 in the night and immediately thereafter he had conducted his

examination. He does not remember whether at that time, the clothes

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of the injured were wet or not. According to PW 4 Dr. Nilambar Bhatt,

in the medical examination report nothing is noted about the clothes

or body being wet. Injuries upto 3 hours are deemed to be fresh. The

depth of the skin can be upto 0.50 cm. Injury no. 1 was about skin-

deep and had not reached upto fat. If any person deliberately makes

injury on his neck, then this injury can be made by hand. Injury no.2

can be caused, if any person falls on any hard object. Injury nos.3 and

4 are possible to be self-inflicted. If with force attempt is made to slit

throat, then the injury would be deep. If someone slits the throat with

knife many times, then both the ends of the said injury, depth, etc.,

would be same. But if at one time the injury is caused, then in that

situation, the injury of both the ends and the depth would be different.

At the time of examination of the injured, blood was flowing. If external

injuries are not cured, then ordinarily the blood can flow upto 6 hours.

From these injuries, there is no possibility of death.

24. Dr. K.D. Pandey, Soban Singh Jeena Base Hospital,

Haldwani, District Nainital, was examined as PW-5. In his

examination, he deposed that on 06.07.2002, he was posted as

Medical Officer in the aforesaid hospital, and on that day at 10:15

hours, he had conducted the post-mortem on the body of deceased

Raju @ Rajpal, son of Surajpal. On the external examination of the

body, he found that the deceased was of normal height and build.

There was no rigor mortis in the body. There were decomposition

marks on the dead body. The skin had peeled off. The nails and teeth

were easily detachable. Hair was coming out easily. On some parts of

the body, maggots were crawling. There was no ante-mortem injury on

the body.

25. The cause of death was not clear; therefore, the viscera

was preserved and was given in the custody of the concerned

12

constables along with the post-mortem report, police papers, and the

clothes found on the body of the deceased. In his opinion, the death of

the deceased was possible at any time after 9 o'clock in the evening of

30.06.2002. He proved the post-mortem report, which was marked as

Exhibit A-3.

26. At the time of the post-mortem examination, PW5 did not

find any signs of liquor or poison. On referring to Modi's

Jurisprudence, the witness stated that if a body is submerged in

water, decomposition takes twice as long as it does in a body lying

outside.

27. Gajendra Rastogi was examined as PW-6. He was a panch

witness to the panchnama , and he proved the panchnama, which was

marked as Exhibit A-4.

28. Constable Kanhai Singh was examined as PW-7. He

deposed that on 30.06.2002, he was posted as a Constable at Thana

Haldwani. On that day, he and Home Guard Kamal Kishore went on

patrol duty towards Bhotiya Parao vide GD No. 51 at 23:30 hours.

While they were on patrol and crossed Tikonia Chauraha, reaching

Barsati Nala at Workshop Line, opposite the Forest Office, there were

lights outside the houses and shops. In that light, they saw a maroon-

coloured car, and near that car, they saw three persons, out of whom

one was tall and two were short. On being questioned, they stated that

they were urinating. When they proceeded towards them, all three of

them fled towards the Roadways Bus Station in their vehicle. When

they reached the place where the car was earlier parked, they noticed

that one person was trying to come out of the canal. They pulled him

out of the canal, and his neck and hands were cut, and there was an

13

injury on his head. He stated that Anil, Imran, and one other person

had cut his throat, thrown him into the canal, administered some

poisonous substance to him, and had murdered his friend, or had

done something to him which he did not know. The boy who was

pulled out of the canal identified himself as Aditya Sharma @ Bittu,

resident of Moradabad. The boy was then taken towards the Roadways

Bus Station to search for the vehicle and the persons, but they could

not find them. Aditya would sometimes fall unconscious and

sometimes murmur. He was taken to the Thana, an injured letter

(Majrubi Chhiti) was prepared, and he was brought to the hospital. At

the hospital, his medical examination was conducted. When he

recovered, he was brought back to the Thana, and a case was

registered against the persons in which Anil and Imran were named.

After some time, he went to his room. On 03.07.2002, the Daroga Ji

arrested Anil and Imran and brought them to the Thana. PW-7 was

present at the Thana and identified both persons as the ones standing

near the canal on the night of 30.06.2002. They admitted their guilt

and led the police team with Imran to Najakat Ka Bagicha, where

Wasif's house was situated. Wasif was arrested from his house, and

from his possession, looted cash of Rs. 30,000/- and 150 CDs were

recovered.

29. The recovery and arrest memo was prepared. Thereafter,

they took Imran to Lane No. 17, to the house of Pappu @ Sarwar. He

was arrested from his house, and Rs. 16,900/- along with 304 CD

cassettes were recovered from his house, and a recovery memo was

prepared, on which PW-7 signed and identified his signatures. There,

he saw Sarwar and identified him as the person who was standing

near the car on the night of 30.06.2002 and had stated that they were

urinating.

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30. In his cross-examination, PW-7 stated that on 30.06.2002,

his duty was from 11:30 PM till 4:00 AM. His departure (rawangi ) was

entered in the GD dated 30.06.2002 at 23:30 hours. According to

him, he does not remember whether he had stated to Daroga Ji in his

statement that a bulb was lit near the place of the incident. If Daroga

Ji had not shown any light at or near the place of the incident, he

cannot assign any reason for the same. Daroga Ji had not prepared

any memo on the spot nor taken any bulb into possession. He denied

the suggestion that there was no light at the time of the incident. They

had remained at the place of the incident for 10–15 minutes. When

they took Aditya to the Thana, he was not totally unconscious. About

2-2½ hours thereafter, he regained full consciousness, and at about

2:30 AM, he had become conscious. He had taken him to the hospital

at 1:45 AM in an unconscious state. He denied the suggestion that by

that time he had received any letter from the Thana, they had not

chased the vehicle, nor had they noted its registration number. He also

denied the suggestion that at the time of the incident, there was no car

and no persons. He had not told Daroga Ji in his statement that

Pappu @ Sarwar was of similar height and built as Anil, on that day,

Pappu @ Sarwar had cut the throat of Aditya. He denied the

suggestion that he had made the aforesaid statement and that today,

under the pressure of the officers and on legal advice, he was stating

that Anil had cut Aditya's throat.

31. According to PW 7 Const. Kanhai Singh, there was no

blood of Aditya on their clothes. He denied the suggestion that Aditya

had not told them about the incident. PW 7 Const. Kanhai Singh

further stated that when he saw the appellants, it was noon. He

admitted that neither the appellants were “ba parda ” (masked) nor

15

were they identified by him in jail. He had seen Anil and Imran when

they were brought to the Thana without handcuffs. He denied the

suggestion that he had seen and recognized them on legal advice and

to falsely support the prosecution case. He denied the suggestion that

he had not seen any person or car at the place of the alleged incident,

nor had he seen any at the Thana, and that he was deposing under

legal advice and the pressure of officials. In his statement to Daroga Ji,

he had not given the physical description of the appellants whom he

had seen at Barsati Nahar , for which he could not assign any reason.

32. SHO Mohd. Zaheer Khan was examined as PW-8. He

deposed that on 05.07.2002, he was posted as In-charge, Chauki

Mukhani, Thana Haldwani, on the post of Sub-Inspector. On that day,

on the directions of the Investigating Officer, he had prepared the

panchnama (inquest report) of the body of deceased Raju @ Raj @

Rajpal. He had also prepared the relevant documents, namely,

photonash, challannash, sample seal, and the letter to the CMS, and

identified his signatures thereon, which were marked as Exhibits A-5

to A-8. In his cross -examination, he stated that the body was taken

out from the canal by two constables, and he had assisted them. In

the presence of the panch witnesses, a search of the dead body was

conducted, during which one mobile number was found. On

contacting that mobile number, the family members from Moradabad

were informed. They came to the spot and identified the deceased as

Raju @ Rajpal. After identification of the dead body, it was sealed.

33. SI K. P. Singh was examined as PW-9. He deposed that on

03.07.2002, he was posted in Thana Haldwani as Sub-Inspector and

on that day, he along with police party had taken the arrested Imran

for the purpose of the expectation of recovery of case material. He led

16

them to the house of Wasif and stated that there he has given the cash

and CD etc. to Wasif to conceal them. Wasif got recovered cash and

150 Video CDs of different films from a box inside his house and

Imran told that this material was given by him to Wasif. The recovered

CDs and money was taken into police possession and was kept inside

different clothes and it was sealed and sample seal was prepared and

Wasif was arrested. Memo was prepared in his handwriting and signed

by him, which he identified and was marked as Exhibit A-9.

Thereafter, on 03.07.2002 itself, along with the arrested persons Wasif

and Imran, in expectation of arrest and recovery of case material, went

to the house of Pappu alias Sarvar and the Wasif knocked at the door

of Pappu alias Sarvar, who opened the door, who tried to flee on seeing

the police, but he was caught and he revealed his name as Pappu alias

Sarvar, who got recovered Rs.16,900/- from inside a sandook (box) of

his house and 304 CDs from a cardboard box and the Imran, on

seeing the recovered CDs and money, told that these are CDs and

money which have come in the share of Pappu, so, the Pappu alias

Sarvar was arrested. The recovered money and CDs were placed in

different cloth pieces and they were sealed and sample seal was

prepared. The memo was prepared at the spot, which was written by

him. The memo was in his handwriting, on which he identified his

signature and it was marked as Exhibit A-10. This witness has also

proved currency notes as Material Exhibits 1-300; black bag as

Material Exhibit 301; white cloth as Material Exhibit 302; 150 CDs as

Material Exhibits 303-452; sealed cloth as Material Exhibit 453; 172

currency notes of Rs. 50/- denomination as Material Exhibits 454-

625; 6 currency notes of Rs. 500/- denomination as Material Exhibits

626-631; 53 currency notes of Rs. 100/- denomination as Material

Exhibits 632-684; black polythene as Material Exhibit 685, cloth as

17

Material Exhibit 686, 304 CDs as Material Exhibits 687-990; sealed

cloth as Material Exhibit 991.

34. S.I. Shyam Singh was examined as PW-10. In his

examination-in-chief, he stated that on 01.07.2002, he was posted at

Thana Haldwani as S.I. On that date, Crime No. 28/02 under Section

307 was registered, whose investigation was handed over to him on

that date, he had started his investigation. During his investigation, he

prepared site plan (Naksha nazari) of the place of incident, which he

proved as Exhibit A- 11. PW10 has also stated about the step taken by

him during investigation, recoveries, etc. He proved the site plans of

the recovery of the recovered money and CDs from Pappu @ Sarvar

and Wasif, Exhibit A-12 and A-13 respectively.

35. PW 10 SI Shyam Singh has further stated that on

05.07.2002, after recovery of the dead body of Raj alias Raju on his

direction, S.I. Mohammad Zaheer Khan prepared the Panchayatnama

of the deceased and he prepared the site plan of the place of recovery,

Exhibit A-14.

36. Rajendra Singh Hyanki was examined as PW-11, who

deposed that on 03.08.2002, and prior thereto, he was posted at

Thana Haldwani as In-charge Second. On that day, he had taken over

the investigation of the case & recorded statements of several

witnesses. Thereafter, he submitted the charge-sheet against the

appellants under Sections 302, 307, 364, 394, 326, 328, 201, 120-B,

and 34 IPC, and Section 411 IPC before the Court. He proved the

charge-sheet, which was marked as Exhibit A-15. He identified the

signatures of H.M. Mahesh Pal Singh on the FIR, which was marked as

Exhibit A-16. The entry of this offence was also made by the aforesaid

18

H.M. in the GD at Rapat No. 45 at 14:30 hours. He identified the

signatures of H.M. on the carbon copy of the GD, which was marked

as Exhibit A-17.

37. PW 11 Rajendra Singh Hyanki in his cross-examination

stated that regarding the reporting of the incident in the newspaper

Amar Ujala, he could not say whether it was correctly or incorrectly

reported. He does not have any information whether Husnara, wife of

Imran, had sent a telegram to the DIG, SSP, and DM, Nainital, stating

that her husband had been taken away by the police from Munna

Market, Haldwani. He also does not have the information that on

02.07.2002, Tafazul Hussain had sent a telegram to the DM, DIG, and

SSP, Nainital, stating that his son had been apprehended by the police

on 01.07.2002 and was committing marpeet with him, and whether

aforesaid telegram had come to him for inquiry; he does not remember.

Car No.DDC1066 was taken into possession from near Taj Chauraha.

He denied the suggestion that the car had been taken into possession

at 6:00 pm on 01.07.2002 by the Haldwani Police from the Kumaon

Mandal Vikas Nigam car parking at Kaladhungi Chauraha.

38. Govind Prasad, Chief Pharmacist, Soban Singh Jeena

Base Hospital, Haldwani, was examined as PW-12, and he deposed

that Imran and Sarvar were medically examined in the hospital on

04.07.2002 and proved their medical examination reports which were

marked as Exhibits A-18 and A-19, respectively.

39. S.I. Mohammad Zaheer Khan was examined as PW-13,

who deposed that he had prepared the Panchayatnama of deceased

Raju @ Rajpal on 05.07.2002. From the pant pocket of the deceased,

one black purse was recovered, which was sealed by him on the spot.

19

The purse, in its sealed condition, was opened in Court, from which

one Rs.50 note and two Rs.2 notes (total Rs.54), one pocket diary on

the outside of which "Singapore" was written, "Raju Electronics", 14

visiting cards, and one "Times Chingari" card were recovered. The

witness stated that the purse and the aforesaid articles were recovered

from the pant pocket of the deceased at the time of preparing the

Panchayatnama, and the memo was prepared by him at the spot in the

presence of the public and witnesses Rajender Pal Kalra and Suresh

Pal, whose signatures were obtained on it. He proved the said memo,

which was marked as Exhibit A-20.

40. Prem Babu Rawat was examined as PW14. He stated that

he has a shop dealing in audio and video by the name of Rawat Audios

opposite Sargam Cinema Hall inside the street in which he sells audio

and video cassettes. He buys audio video CDs from a person by the

name of Raju Kalra Moradabad. The said CDs would be bought by him

by going himself and taking from Raju Kalra and sometimes Raju

Kalra’s servant would deliver at the shop. The payment of the aforesaid

CDs would sometimes be paid by him by going to Moradabad and

sometimes Raju Kalra’s servant Raj would take from the shop and

sometimes Anil used to take it. Raju Kalra’s servant Raj has taken the

payment from his shop many times earlier. He knew the deceased Raj

from prior to the incident.

41. According to PW 14 Prem Babu Rawat, on 30.06.2022

Raju Kalra’s servant Raj had come to his shop to take payment along

with his friend. Raj introduced him as Aditya Sharma who had come to

my shop for the first time. I paid a sum of Rs. 37,500/- to Raj in his

shop. In his cross-examination, he could not state how many CDs and

cassettes had been supplied to him by Raj. On that day, Raj had not

20

given him any cash memo of cassettes and CDs. He had not taken any

receipt from Raj for the payment given to him. He does not maintain

any cash book.

42. The appellants were examined under section 313 of the

CrPC. in which they denied all the allegations made against them and

contended that they have been falsely implicated.

43. Taffazul Husain was examined as DW1. In his

examination-in-chief he stated that , Imran, is his son, runs a shop

under the name of Shahji Enterprises in Munna market in which deals

in handloom garments. At the relevant time, Imran used to run the

said shop. He did not use to come to home for meals and at around

12:00 in the afternoon he used to deliver his meal. On 01.07.2002 he

went to Imran’s shop to deliver his meal then Imran was not found and

he had inquired from the nearby shop keepers who informed that two

policemen from Thana Haldwani had taken him for inquiry to the

Thana. He waited for him in the shop, when Imran did not return for a

long time then he went to Thana Haldwani for inquiry. He tri ed to meet

Imran in the Thana but he was not permitted to meet Imran and he

was told that Imran was being interrogated and he will be set free after

interrogation. Then he met Daroga Ji who on inquiry told him to go.

Then he left after closing the shop. He waited at home till 7 - 7.15 p.m.

in the evening. Then he along with Imran’s wife Husan Ara went to

Telegraph office, Roadways and Husan Ara sent telegram informing

District Magistrate Nainital, DIG Police Nainital, S.S.P. Nainital and

Chief Minister Dehradun. The certified copy of the telegrams have been

filed which contain signature of Husan Ara which he proved and which

were marked as Exhibit B-1 and in the telegrams to District Magistrate

Nainital, DIG Police Nainital, S.S.P. Nainital, identified signatures of

Husan Ara which were marked as Exhibit B-2. On 01.07.2002 the

21

Thana personnel did not set his son free. On 02.07.2002 also he went

to the Thana to inquire about his son but the Thana personnel did not

tell him anything, then he inquired that the police personnel are

committing Maarpeet with his son.

44. After that on 02.07.2002 he sent telegrams to District

Magistrate Nainital, DIG Police Nainital, S.S.P. Nainital and Chief

Minister Dehradun and Human Rights Commission whose certified

copies were marked as Exhibit B-3. The certified copies of the

telegrams to District Magistrate Nainital, DIG Police Nainital, S.S.P.

Nainital contained his signatures which were marked as Exhibit B-4.

In the telegram sent to the Human Rights Commission contained his

signatures which were marked as Exhibit B-5. He has also placed on

record the receipts of the telegrams and newspaper clipping of the

report is paper no. 174 kha/13. His daughter in law Husan Ara had

sent Fax to S.S.P. Nainital on 03.07.2002 whose receipt is at paper no.

174 kha/14. In the said fax there is signature of his daughter in law

Husan Ara which he proved and marked as Exhibit B-6. On

04.07.2002 also his daughter in law had sent a Fax to S.S.P.Nainital,

which is copy on record as paper no. 174 kha/15 which is marked as

Exhibit B-7. Regarding the Maruti car No. 1066 he had tried to

inquire. He saw the said car stationed at Thana in the evening of

01.07.2002 then he tried to inquire and found that the said car had

been brought by the police from parking of Kumaun Mandal Vikas

Nigam. He also came to know that this car had been parked in the car

parking of Kumaun Mandal on 01.07.2002 in which regard he had

sought information under the RTI Act from the In charge of the car

parking. This information he has filed which is paper no. 174 kha/3-

174 kha/5. His son has no concern with the said case. The police have

falsely implicated. His cross-examination is not significant.

22

45. Thereafter, the matter was finally heard and vide judgment

and order dated 04.06.2009/05.06.2009, the appellants have been

convicted and sentenced as stated hereinbefore. Aggrieved by it, the

appellants have preferred these appeals.

46. Heard learned Senior Advocate, Mr. R.S. Sammal, assisted

by Ms. Sarita Bisht, learned counsel for the appellant in CRLA No. 97

of 2009; Mr. M.S. Pal, learned Senior Advocate, assisted by Ms.

Amreen Bano, learned counsel for the appellant in CRLA No. 98 of

2009; Mr. Sunder Singh Bhandari, learned counsel for the appellant in

CRLA No. 95 of 2009; and Mr. Siddhartha Bisht, learned AGA for the

State.

47. With regard to the instant case, it needs to be stated that

the cardinal principle in criminal matters is that the prosecution has

to prove the guilt beyond reasonable doubt. In this context, certain

judgments of the Hon'ble Supreme Court are relevant.

48. Reference needs to be made to judgment of Hon'ble

Supreme Court in the case of Rang Bahadur Singh v. State of U.P.,

reported in (2000) 3 SCC 454, wherein the Hon’ble Supreme Court has

held in para 22 as follows :-

“22. The amount of doubt which the Court would

entertain regarding the complicity of the appellants in this case

is much more than the level of reasonable doubt. We are aware

that acquitting the in a case of this nature is not a matter of

satisfaction for all concerned. At the same time we remind

ourselves of the time- tested rule that acquittal of a guilty

person should be preferred to conviction of an innocent

person. Unless the prosecution establishes the guilt of the

beyond reasonable doubt a conviction cannot be passed on the

. A criminal court cannot afford to deprive liberty of the

appellants, lifelong liberty, without having at least a

23

reasonable level of certainty that the appellants were the real

culprits. We really entertain doubt about the involvement of

the appellants in the crime.”

49. In the case of State of U.P. v. Krishna Gopal, reported in

(1988) 4 SCC 302, the Hon'ble Supreme Court has held in para 25 as

follows :

“25. A person has, no doubt, a profound right not to be

convicted of an offence which is not established by the

evidential standard of proof beyond reasonable doubt.”

50. Assailing the impugned judgment and order, the learned

Senior Advocate, Mr. R.S. Sammal, submits that the prosecution case

is false and that the appellants have been falsely implicated in the

case. There is inordinate delay in lodging the FIR which remains

unexplained. He submits that, except for P.W.-1 and P.W.- 7, there is

absolutely no other evidence against the appellant Imran and even the

statements of P.W.- 1 are untrustworthy and unbelievable and cannot

be relied upon for any purpose whatsoever. The statements of P.W.-7

contain many contradictions, and it is unsafe to rely upon his

testimony. Hence, the trial court erred in convicting the persons.

51. He further submits that the FIR, on the face of it, is a

post-investigation narration dictated by the police. The informant,

Aditya Sharma, had come to Haldwani for the first time, and the

description of the names of the places in Haldwani and the

shopkeepers in the manner stated in the FIR is not possible for a

person who was admittedly visiting Haldwani for the first time. It is

further submitted by the learned Senior Advocate that no Test

Identification Parade (TIP) of the was conducted. The statements of

P.W.-1 were recorded by the police after one week.

24

52. The learned Senior Counsel for the appellant Imran

further submits that P.W.-1 has been improving his statement at every

stage. His statements under Section 164 of the Cr.P.C. is an

improvement over the FIR version, and his examination-in-chief

contains further improvements. In his statements under Section 164

of the Cr.P.C., P.W.- 1 stated that the facts were stated by himself. He

further submits that when P.W.-1 admits that he had fallen

unconscious and it is so, it is inconceivable how he could narrate the

acts allegedly committed by the appellants.

53. He further submits that it was dark and night-time, and in

the absence of any light, it was not possible for P.W.-1 to see from a

height/distance of 12 feet, nor was it possible for him to see the police

personnel. He further submits that the story regarding the shops and

the policemen was developed later by P.W.-1. He further submits that

it is the case of P.W.-7, Constable Kanhai Singh, that there were two

police personnel on patrol duty who had spotted the injured informant

(P.W.-1); however, the other police personnel was never examined as a

witness during the trial. He further submits that the prosecution has

developed a concocted story, which is evident from the statements of

P.W.-1 and P.W.-7.

54. The next submission made by the learned Senior Counsel

is that there is a complete absence of motive in the entire case. He

further submits that Imran was detained at the Thana, which is

evident from the telegrams sent by his wife, Husnara, on 01.07.2002

to different authorities, stating that Imran had been illegally detained

at the Thana. However, even according to the prosecution case, Imran

was arrested only on 03.07.2002. He further submits that the entire

incident of poisoning/drugging P.W.-1 is alleged to have taken place in

25

Car No. DDC 1066, however, this aspect was never investigated by the

Investigating Officer during the entire investigation. Hence, one of the

key aspects of the case has remained unexplored during the

investigation, which creates serious doubt about the prosecution case.

He further submits that,

in the entire case, Imran had no specific role

except that he was accompanying Anil. There is no evidence as to

where he went or what role he played.

55. Learned Senior Counsel for the appellant Imran would rely

upon the judgment of the Hon'ble Supreme Court in the case of

Allarakha vs. Habib Memon and Others vs. State of Gujarat, reported

in (2024) 9 SCC 546, and has submitted that even an eyewitness may

not be believable in certain circumstances.

56. In the case of Allarakha (supra ), the Hon’ble Supreme

Court discussed the statement of a witness and held that he was not

eye witness as portrayed by the prosecution. In paragraph 38, the

Hon’ble Supreme Court held as follows:-

“38. So far as Mustaq (PW 13) is concerned, who was treated

to be an eyewitness of the incident and whose testimony was

relied upon by the trial court as well as the High Court, suffice

it to say that there are ample circumstances on record which

deny the claim of the eyewitness that he had seen the alleged

assault been made on the deceased. Firstly, the name of

Mustaq (PW 13) does not figure in the FIR (Ext. P-79) as an

eyewitness to the incident. Furthermore, when he was

examined under Section 161CrPC, he categorically stated that

he was at his house and that the information of the incident

was given to him by the father of the deceased, Mohammad

Iqbal Memon (PW 14). In this background, when the witness

was confronted during cross-examination, he could not explain

the grave improvement. Thus, we have no hesitation in holding

that, Mustaq (PW 13) was falsely portrayed to be an eyewitness

of the incident, and his testimony cannot be relied upon.”

26

57. Learned Senior Counsel for the appellant Imran would

further submit that there is no source of light shown in the site plan.

The place of the incident is alleged to be near a commercial complex;

however, at the time of the incident, which was night-time, the shops

remained closed, and there was no possibility of any light in which the

injured could have either seen the accused or called the policemen for

help. He would further submit that PW 7 Kanhai Singh was the only

police personnel who took the injured out of the canal and brought

him to the hospital. However, the doctor says that he came walking to

the hospital. He would further submit that there is no majroobi chitti

(injury letter). He would further submit that there is suppression on

the part of the police in conducting the investigation, which creates

doubt about the timing. The police have either been highly negligent or

have deliberately suppressed the true facts. He would further submit

that the material exhibits, CDs, and the GD entries were not exhibited

by the police, nor was any document identification carried out. He

would further submit that there is no evidence against Imran, and he

deserves to be acquitted.

58. These submissions made by learned Senior Advocate Mr.

R.S. Sammal were also adopted by learned Senior Advocate Mr. M.S.

Pal. However, he supplemented the arguments made by learned Senior

Counsel Mr. R.S. Sammal and submitted that there are major defects

in the investigation. He would further submit that there is no reason

why PW-1 Aditya Sharma had come to Haldwani. T he police did not

make any effort to trace the Pepsi bottles. There is no evidence

regarding the recovery of the car which, as per the prosecution case,

was involved in the entire incident. He would further submit that Raj

had himself gone to buy liquor and had himself consumed it.

Regarding the recoveries from Sarwar and Wasif, a concocted story has

27

been developed by the prosecution only to falsely implicate these

appellants. Thus, he would submit that the prosecution has utterly

failed to prove the case beyond reasonable doubt, against the

appellants Wasif and Sarvar alias Pappu, therefore, they deserve to be

acquitted, and the appeal deserves to be allowed.

59. Mr. Sundar Singh Bhandari, learned counsel for the

appellant Anil, would submit that the entire story starts from the shop

of Anil. He would submit that Anil never purchased the liquor. The

Barsati Nahar (canal) had water up to waist height, and in that

current, it was not possible to stand. He would further submit that

even Dr. Nilambar Bhatt, who had conducted the medical examination

of PW-1, had stated that all the injuries were simple in nature. He

would further submit that Dr. Nilambar Bhatt deposed that the

injured came walking and told him his name. He would further submit

that if a person is under intoxication, it is normally mentioned in the

medical examination report. He would further submit that the entire

investigation is unfair. He would further submit that there was no

investigation vis-à-vis the car, which assumes great significance in the

peculiar background of the instant case. He would further submit that

the looted material was not distributed, and nothing was recovered

from appellant Anil. He would submit that against the appellant Anil

the charge is only under Section 120-B of the IPC and Section 34 read

with Section 307 of the IPC, and there is no charge under Section 302

of the IPC; hence, there could not have been any conviction under

Section 302/34 of the IPC. He would rely upon the judgment of the

Hon'ble Supreme Court in the case of Avtar Singh and others vs. State

of Punjab, reported in (2002) 7 SCC 419.

28

60. In the case of Avtar Singh (supra ), the Hon’ble Supreme

Court, in paragraph 7, observed as follows:-

“7. Coming to the case of the third appellant who was driving

the vehicle, there is one more infirmity in the prosecution case.

He would have been charged alternatively for transporting the

offensive goods without permit or authorization as required by

law; but such a charge was not laid. There was not even a

reference to Section 8 of the Act. The result is, he too goes

scot-free.”

61. Per contra, learned counsel for the State, Mr. Siddharth

Bisht, learned AGA, would submit that the FIR was lodged, and it was

the first step. He would rely upon the recovery and the arrest memos

of Wasif and Sarwar. He would further submit that the prosecution

case is in two segments. The first segment under Section 302 is based

on circumstantial evidence. However, the second segment under

Section 307 is based on direct evidence. PW-1 is an eyewitness. His

deposition is duly supported by the depositions of PW-7 and PW-4.

Their statements are aligned, and there are no contradictions. Though

the injuries are simple in nature, Anil was trying to cut his throat, but

he immediately rescued himself. He would further submit that there

was a source of light.

62. Learned State Counsel would point to the testimony of

PW-7 and submit that there were lights glowing outside the houses.

Regarding how PW- 1 came to know about all the places in Haldwani

when he had visited Haldwani for the first time, he would submit that

the deceased and PW-1 had got down from the bus and remained

together up to 10:30 PM, by which time he came to know about the

places in Haldwani and the persons whom the deceased had met. He

would refer to the testimony of PW-10 and submit that, in the site

plan, the source of light has been shown in dark ink. He would further

refer to the FSL report and submit that alcohol and organochloro

29

insecticide were found in the viscera report. Anil and Imran had

administered poison to the deceased, due to which he died. As to the

motive, he would submit that there was a motive to snatch money

from the deceased.

63. Having heard the learned Counsel for the appellants and

the learned AGA for the State, the major issues as deliberated and

canvassed by the respective Counsel for the parties are being analysed

hereinunder :-

64. One of the major grounds being agitated on behalf of the

appellants is that the FIR is highly delayed, and in the facts and

circumstances of the case points out to the false implication of the

appellants. From a perusal of the FIR, it is evident that the FIR has

been lodged at Police Station Haldwani on 01.07.2002 at 14:30 hours.

However, even as per the FIR itself, the incident has occurred at

around night time of 30.06.2002, and as per the chik FIR, the time is

recorded as 8:00 in the night. Though the exact time of the incident is

not borne out from the record, however, the medical examination

report of the injured Mr. Aditya reveals that his medical examination

was conducted at S.S. Jeena Base Hospital, Haldwani at 01:45 AM on

01.07.2002. Thus, it is clear that the incident occurred somewhere in

the night time of 30.06.2002 but before 1:45 a.m. of 01.07.2002.

However, what is striking in the present case is that the FIR only came

to be lodged at 14:30 hours on 01.07.2002, thus even from the time of

the medical examination of the injured Aditya, the delay in lodging the

FIR is more than 12 hours. The delay has not been explained

anywhere by the prosecution. The said delay raises doubt about the

prosecution case on account of multiple factors, namely:-

30

(i) As per the prosecution, it was a case of alleged

attempt to murder after administering some

substance to PW1. The informant had narrated

entire story to police.

(ii) The informant had been medically examined at

01:45 a.m.

(iii) One of the persons in the case Raj was missing,

which would have required immediate search of that

person.

65. The question then arises as to what prevented the police

from lodging the FIR promptly in the early hours of 01.07.2002 or

night of 30.06.2002 ?

66. The statement of PW7, Constable Kanhai Singh, very

clearly states that when he and Homeguard Kamal Kishore were on

night patrol at 23:30 hours in the evening, they had reached the place

of incident and had seen three persons near a car, and after seeing

them, they fled in that car. When they reached near the car, they saw

a person trying to come out of the canal, and they took him out of the

canal. He disclosed about Anil having cut his throat and three

persons had thrown him in the canal, and they had also administered

some poisonous substance to him, and his friend Raju was either

murdered or done something, which he did not know.

67. It is further narrated by PW7, Constable Kanhai Singh

that the injured Aditya Sharma was brought to the Thana and a chitti

majrubi was prepared and he was taken to the hospital and after his

medical examination, when he was brought to the T hana, the report

was lodged. The report is lodged at 14:30 hours on 01.07.2002. Thus,

31

when PW7 himself states in his examination-in-chief that after having

recovered the injured and he having narrated about the injury caused

to his throat by the appellant and Anil, and thrown by the three , and

a doubt was raised about the murder of Raju, hence, it was incumbent

upon the Constable PW7, to have first of all caused the FIR to have

been registered at the T hana. The FIR has neither been registered at

the first available instance nor thereafter when the medical

examination was conducted at 01:45 AM. Hence, the delay remains

unexplained.

68. In this regard, reference needs to be made to certain

judgments of the Hon’ble Supreme Court.

In the case of “Thulia Kali v. State of Tamil Nadu”, reported in

(1972) 3 SCC 393, wherein at paragraph 12, the Hon’ble Supreme

Court had the occasion to deal with the delay in lodging the First

Information Report, which is extracted hereunder :-

"12. .................. First information report in a criminal case

is an extremely vital and valuable piece of evidence for the

purpose of corroborating the oral evidence adduced at the trial.

The importance of the above report can hardly be

overestimated from the standpoint of the : The object of

insisting upon prompt lodging of the report to the police in

respect of commission of an offence is to obtain early

information regarding the circumstances in which the crime

was committed, the names of the actual culprits and the part

played by them as well as names of eye witnesses present at

the scene of occurrence. Delay in lodging the first

information report quite often results in embellishment

which is a creature of afterthought. On account of delay,

the report not only gets bereft of the advantage of

spontaneity, danger creeps in of the introduction of

coloured version, exaggerated account or concocted story

As a result of deliberation and consultation. It is,

therefore, essential that the delay in the lodging of the

first information report should be satisfactorily explained.

In the present case, Kopia, daughter- in-law of Madhandi

deceased, according to the prosecution case, was present

32

when the made murderous assault on the deceased.

Valanjiaraju, stepson of the deceased, is also alleged to

have arrived near the scene of occurrence on being told by

Kopia. Neither of them, nor any other villager, who is

stated to have been told about the occurrence by

Valanjiaraju and Kopia, made any report at the police

station for more than 20 hours after the occurrence, even

though the police station is only two miles from the place

of occurrence. The said circumstance, in our opin ion,

would raise considerable doubt regarding the veracity of

the evidence of those two witnesses and point to an

infirmity in that evidence as would render it unsafe to

base the conviction of the -appellant upon it."

(emphasis supplied)

69. Also, in the case of “Rajeevan v. State of Kerala”, reported

in (2003) 3 SCC 355, the Hon’ble Supreme Court, on the aspect of

delay of 12 hours in filing the FIR, came to the conclusion that it is

not safe to rely upon the FIR. Relevant paragraph 14 is extracted

hereunder :-

“14. As feared by the learned counsel for the appellants, the

possibility of subsequent implication of the appellants as a

result of afterthought, may be due to political bitterness,

cannot be ruled out. This fact is further buttressed by the

delayed placing of FIR before the Magistrate, non-satisfactory

explanation given by the Police Officer regarding the blank

sheets in the Ex. P30 counter foil of the FIR and also by the

closely written bottom part of Ex.P1 statement by PW 1. All

these factual circumstances read with the aforementioned

decisions of this Court lead to the conclusion that it is not

safe to rely upon the FIR in the instant case. The delay of

12 hours in filing FIR in the instant case irrespective of

the fact the Police Station is situated only at a distance of

100 meters from the spot of incident is another factor

sufficient to doubt the genuineness of FIR. Moreover, the

Prosecution did not satisfactorily explain the delayed

lodging of FIR with the Magistrate.”

70. Also, in the case of Meharaj Singh v. State of U.P.,

reported in (1994) 5 SCC 188, regarding the delay in lodging the

FIR, the Hon’ble Supreme Court inter alia, on account of delay in

lodging the FIR, had come to the conclusion that on account of

33

delay and infirmities, the FIR has lost its value and authenticity.

Relevant paragraph 12 is extracted hereunder :-

“12. FIR in a criminal case and particularly in a murder case

is a vital and valuable piece of evidence for the purpose of

appreciating the evidence led at the trial. The object of

insisting upon prompt lodging of the FIR is to obtain the

earliest information regarding the circumstance in which the

crime was committed, including the names of the actual

culprits and the parts played by them, the weapons, if any,

used, as also the names of the eyewitnesses, if any. Delay in

lodging the FIR often results in embellishment, which is a

creature of an afterthought. On account of delay, the FIR not

only gets bereft of the advantage of spontaneity, danger also

creeps in of the introduction of a coloured version or

exaggerated story. With a view to determine whether the FIR

was lodged at the time it is alleged to have been recorded, the

courts generally look for certain external checks. One of the

checks is the receipt of the copy of the FIR, called a special

report in a murder case, by the local Magistrate. If this report

is received by the Magistrate late it can give rise to an

inference that the FIR was not lodged at the time it is alleged to

have been recorded, unless, of course the prosecution can offer

a satisfactory explanation for the delay in despatching or

receipt of the copy of the FIR by the local Magistrate.

Prosecution has led no evidence at all in this behalf. The

second external check equally important is the sending of the

copy of the FIR along with the dead body and its reference in

the inquest report. Even though the inquest report, prepared

under Section 174 CrPC, is aimed at serving a statutory

function, to lend credence to the prosecution case, the details

of the FIR and the gist of statements recorded during inquest

proceedings get reflected in the report. The absence of those

details is indicative of the fact that the prosecution story was

still in an embryo state and had not been given any shape and

that the FIR came to be recorded later on after due

deliberations and consultations and was then ante- timed to

give it the colour of a promptly lodged FIR. In our opinion, on

account of the infirmities as noticed above, the FIR has lost its

value and authenticity and it appears to us that the same has

been 'ante- timed and had not been recorded till the inquest

proceedings were over at the spot by PW 8.”

71. In this regard, the learned Senior Counsel for the

appellant, Mr. R.S. Sammal, has vehemently argued that the FIR is

the post-investigation dictation of police. He has argued that the

34

informant, Aditya Sharma, had admittedly come to Haldwani for the

first time. However, he has given the names of the places and the

persons he met in Haldwani with detail and elaboration, which

would not be possible for a person who had come to Haldwani for

the very first time.

72. PW1 Aditya Sharma, is the informant in the case and has

been examined as PW1 by the prosecution. The prosecution case

rests on the credibility or otherwise of the testimony of PW1. As

PW1, Aditya Sharma has unfolded the prosecution case, he has

stated that on 30.06.2002, he had come to Haldwani with his friend

Raju from Moradabad, and he had visited various shopkeepers in

Haldwani where Raju had delivered CDs and had received payments

from the shopkeepers with his friend Raju. He had also given

detailed account of shops where he had visited and details of the

payment received by his friend Raju. However, in his statements

under Section 164 of the Cr.P.C., Aditya Sharma has clearly stated

that after they sat in the car, purchased liquor on the way and Raj

and himself had consumed liquor by mixing pepsi, however, in his

examination-in-chief as PW1, he had a different version that Raj had

bought a bottle of liquor from the neighbourhood of Bharadwaj Hotel

and Anil was driving the car and Raj, Anil, Imran, and he himself

were in the car. They were taken to the highway, and the car was

stopped at many places and pegs were made and given to him and

Raj. Pepsi was mixed in the liquor, and one peg was given to PW1

and one peg was given to Raj. PW1 was confronted regarding the

said contradiction in his statement under Section 164 and the

examination-in-chief in his cross-examination regarding the mixing

of Pepsi in liquor. A suggestion was given that the statements made

in the examination-in-chief regarding the Pepsi being mixed in

liquor by Anil and Imran was wrong and made on legal advice.

35

73. In fact, FIR in the instant case is quite in detail. It is

pictorial discussion as to what has happened on 30.06.2002 to PW

1 Aditya Sharma. According to PW 1 Aditya Sharma, he had come to

Haldwani for the first time. How a person could give such a

description of places and persons at Haldwani when he never met

those persons earlier and never visited the city before that date? It

also doubts the genuineness of the FIR.

74. After considering the overall facts and circumstances with

respect to the delay of more than 12 hours in lodging the FIR, it is

apparent that the delay in lodging the FIR is nowhere explained by

the prosecution. From the record, it is clear that there was every

time an opportunity to lodge the report anytime after 01:45 a.m. on

01.07.2002, but the FIR was not registered in that particular time

period. Further, it is also much in doubt as to how a stranger in

Haldwani like PW 1 could give FIR with such detailed names, etc.

The FIR has lost the advantage of spontaneity. It doubts the

credibility of the FIR and the prosecution case.

75. According to PW 1 Aditya Sharma, he was thrown in the

canal. Where was his friend Raj then? Why PW 1 Aditya Sharma

immediately not reported the matter? According to PW 1 Aditya

Sharma, he was administered some substance, due to which he

became unconscious, but the doctor, who conducted the medical

examination of PW 1 Aditya Sharma at 01:45 in the midnight

records that the PW 1 Aditya Sharam had come walking. As per PW

1 Aditya Sharma, when he was thrown in the canal, Anil and Imran

were stoning him, whereas according to PW 7 Constable Kanhai

Singh, he saw three persons near the canal. How many persons

were there, two or three? Contradiction on this aspect is material

and it creates doubts in the testimony of PW1 and PW7. The

36

contradiction in the statements of PW1 and PW7 makes the

prosecution case inconsistent inasmuch as the PW4 Dr. Nilambar

Bhatt has conducted the medical examination of injured without the

majrubi chitti whereas it was a police case and before reaching the

hospital, the injured was admittedly taken to the Police Station

Haldwani.

76. The learned Counsel for the appellants would submit that

the entire prosecution case is a concocted story just to falsely

implicate the /appellants. Since PW7 has not satisfactorily

explained the source of light and how he could have recognized the

colour of the car, seen three persons fleeing away in the car, or seen

the injured PW1, Aditya Sharma, in the absence of any source of

light.

77. Exhibit A-11 is the site plan. In it, as such in the index

nothing has been shown with regard to the source of light as to

whether it was a tubelight, it was a bulb light or it was a street

light? Shops have been shown at the West of the road and on the

Eastern side of the road there is a canal where according to the site

plan, PW 1 was recovered.

78. PW 10 SI Shyam Singh is the Investigating Officer of the

case. In para 1 of his examination-in-chief recorded on 24.05.2007,

he tells that he prepared the site plan at the instance of PW 1 Aditya

Sharma. PW 1 Aditya Sharma has not stated so in his examination-

in-chief. At page 4 of his examination-in-chief recorded on

11.12.2007, PW 10 SI Shyam Singh, the Investigating Officer, in

para 8, has stated that the site plan, Exhibit A-11 was prepared by

him at the instance of PW 7 Constable Kanhai Singh. He admits that

he has not shown the source of light in this, but according to him,

37

with the dark ink, he has reflected those places. This statement of

dark ink as stated by PW 7 is not supported by contemporary

documents prepared by him, which is Exhibit A-11. In the index of

it, it is not recorded that as at which place there was light at the

time of incident. PW 7 Constable Kanhai Singh, in fact, in the first

paragraph, bottom line, in his cross-examination expresses

ignorance as to whether he had shown the source of light to the

Investigating Officer or not.

79. It is an incident of midnight. Source of light is not shown

in the site plan. What was that light, it has also not been disclosed

by the prosecution. Therefore, non-establishment of source of light

doubts the credibility of the statements of PW 1 Aditya Sharma and

PW 7 Constable Kanhai Singh.

80. There is no G.D. entry of bringing the injured PW1 after

the incident to the Thana whereas it is the case of prosecution as

narrated by PW1 & PW7 that after the PW1 was rescued by the PW7

and his colleague they had proceeded to the Thana whereafter the

injured PW1 was taken to the hospital. Absence of any G.D. entry of

bringing the injured PW1 to the Thana immediately after the

incident coupled with the inordinate & unexplained delay in lodging

the FIR further dent the prosecution story.

81. Mr. S.S. Bhandari, learned counsel for the appellant Anil,

has made a submission that the Appellant Anil, was charged only

under Section 120B and under Section 304 read with Section 307,

and charge was not framed against him under Section 302 of the

IPC. Hence, his conviction, inter alia, under Section 302 of the IPC

was bad and unsustainable.

38

82. Undoubtedly, if charge under Section 302 IPC is not

framed, merely based on charge under Section 307 IPC, conviction

under Section 302 IPC cannot be recorded. This goes into the root of

the matter.

83. PW9, in cross-examination, admitted that the sample seal

was not produced before the Court along with the material, i.e., CDs

and cash allegedly recovered from Wasif and Sarvar @ Pappu,

hence, vitiating the alleged recovery from them. PW10 has admitted

in his cross-examination that the CDs recovered from Sarvar were

not identified by the supplier or any other person. Hence, it is

doubtful whether they were the same CDs, which were supplied by

Raj Kalra through deceased Raj.

84. PW9 and PW10 have both admitted that before conducting

the search, no written document was prepared, making the alleged

recoveries from Wasif and Sarvar doubtful. At the time of inspection,

there was no witness of the neighbourhood. PW10 stated in cross-

examination that he had not got the case material identified before

any Magistrate nor from any order of the court.

85. In cross-examination, PW10 admitted that Imran was

arrested from Taj Transport, Lal Chawraha, at about 20:30 hours on

03.07.2002. The arrest memo was not prepared at the spot, which

creates serious doubt regarding the arrest of Imran. Therefore, if

the arrest memo was not prepared at the spot, then the only

inference would be that the arrest of Imran on 03.07.2002 becomes

doubtful.

86. From cross-examination of PW11, it is evident that all

those persons who had stated about making payment to Raju Kalra

had not shown any receipt regarding such payment. He did not

39

obtain the bills and payment receipts from Prem Babu Rawat and

Dinesh Rawat regarding the purchase of the CDs. He did not inquire

from them in what denomination of notes the payments had been

made. He also did not get the CDs and money identified by witness

Aditya Sharma. Thus, the prosecution story of supply of CDs by

deceased Raj and recovery from shopkeepers is also not believable.

87. In his cross-examination the PW14 could not state how

many CDs and cassettes had been supplied to him by Raj. On that

day Raj had not given him any cash memo of cassettes and CDs. He

had not told the name of Rudrapur’s businessman to Daroga Ji . Also

in his statement he has not told the name of Rudrapur’s

businessman. He had not taken any receipt of Rs. 10,000/- from

Raj of Rudrapur’s businessman.

88. Though the car in which the incident has occurred namely

Maruti bearing number DDC 1066 had been clearly stated in the

FIR itself and DW1 had categorically stated in his examination-in-

chief about seeing car No. 1066 parked in Thana at 6:00 in the

evening of 1-7-02 and also that this car was standing in Kumaon

Mandal Car parking on 1-7-02. DW1 has also deposed having

sought information under R.T.I. Act about the said car from

Incharge Car Parking & placed it on record. However there is an

utter failure on behalf of Police about investigating this aspect of the

case as the Police failed to investigate about the car wherein the

offence was allegedly committed. Thus in the background facts it is

amply clear that the prosecution has failed in investigating the angle

of Car DDC 1066 involved in the incident though it was in its

knowledge right from day one. Moreover PW11 in his cross-

examination admits taking possession of car No. DDC 1066 from Taj

Chowraha on 3/7/2002 but what was done with car or found in car

40

is withheld by the prosecution. Hence on this count too an adverse

inference needs to be drawn against the Prosecution.

89. Another very vital aspect of the case which weakens the

prosecution case is failure on the part of the police to attempt to

obtain gastric lavage (stomach contents) of the injured / informant

PW1. It is the prosecution case right from the inception that when

the informant / injured consumed liquor & pepsi offered by Anil &

Imran he fell unconscious. Hence the very first endeavour of the

prosecution ought to have been to obtain gastric lavage of the

injured / informant PW1. However from the Medical Examination

report dated 1-7-2002 at 1:45 a.m. read with statements of PW4 Dr.

Nilambar Bhatt it is clear that no efforts were made to obtain gastric

lavage of injured / informant PW1. Secondly there is absolutely

nothing on record as to whether after the incident the police tried to

search & locate the Pepsi bottle or the liquor half bottle which

allegedly contained poisonous substance which made the injured /

informant PW1 to fall unconscious. Moreover the Police having failed

to investigate the Maruti Car bearing No DDC 1066; leaves many

questions unanswered which further weaken the edifice of the

prosecution.

90. Another aspect of the case which stands out from the FIR

is about trying to find Anil & Imran in their shops after treatment of

injured / informant PW1. There was absolutely no occasion to

search for Imran & Anil, more so when Haldwani Police having

already picked up Imran from his shop in the morning of 1-7-2002

there was no occasion to go & seek him at his shop on the said day.

This further doubts the prosecution case.

41

91. Thus, in view of the entire facts and circumstances of the

case and the case law on the subject, it is clear that the prosecution

case is full of major contradictions and inconsistencies right from

the very inception and even the eye-witness account of PW1 is not

reliable, thus, the prosecution has failed to prove its case at each

and every stage, hence, the prosecution has not been able to prove

its case beyond reasonable doubt. Therefore, the appeals deserve to

be allowed. The impugned judgment and order dated

04.06.2009/05.06.2009, passed by Additional District and Sessions

Judge / I

st

Fast Track Court Haldwani, District Nainital is set-aside.

The appellants are acquitted of their charges.

92. The appellants are on bail. Their bail bonds are cancelled

& the sureties are discharged. However, the appellants are directed

to comply Section 437A of Cr.P.C. and furnish fresh bail bonds

within a month of this judgment.

93. The original record be transmitted to the Trial Court.

(Siddhartha Sah, J.) (Ravindra Maithani, J.)

31.08.2026 31.08.2026

Shiv/Balwant