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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1521 of 2013

STATE OF HARYANA .....APPELLANT(S)

VERSUS

SATENDER .....RESPONDENT(S)

W I T H

CRIMINAL APPEAL NOS. 1526-1527 OF 2013

CRIMINAL APPEAL NO. 1519 OF 2013

A N D

CRIMINAL APPEAL NO. 1528 OF 2013

J U D G M E N T

A.K. SIKRI, J.

Six  persons  were  accused  of  

conspiring with each other and committing murder of one Ramesh  

Masta with common intention.  FIR No. 414 dated November 06,  

2004 was registered against these six accused persons at Police  

Station City Bhiwani, Haryana, under Sections 302, 120-B and 34 of  

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the Indian Penal Code, 1860 (for short ‘IPC’).  Charge under Section  

25 of the Arms Act, 1959 was also foisted upon them.  Names of  

these accused persons are – Rahul  @ Shashi  Partap,  Satender,  

Bharat, Karambir, Manjit Singh and Banti @ Yogender Singh.  The  

Court of Additional Sessions Judge, Bhiwani, on the conclusion of  

the  trial,  vide  judgment  dated  February  22,  2007  returned  the  

findings to the effect that the prosecution had successfully proved  

the allegations contained in the charge sheet that accused Rahul @  

Shashi Partap, Satender and Bharat, in furtherance of their common  

intention,  committed  the  murder  of  Ramesh  Masta  and  thereby  

committed  an  offence  punishable  under  Section  302  read  with  

Section 34 of the IPC.  It also held that other three accused persons,  

namely, Karambir, Manjit Singh and Banti @ Yogender Singh, had  

abetted  the  aforesaid  accused  persons  in  the  said  offence  and  

thereby committed an offence punishable under Section 109 read  

with Section 302 of the IPC.  It was also held that all the six accused  

persons, prior to the date of occurrence, hatched the conspiracy in  

order  to  commit  the  murder  of  Ramesh  Masta  and  thereby  

committed an offence punishable under Section 120-B of the IPC.  

Rahul  @  Shashi  Partap  was  found  guilty  of  offence  punishable  

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under Section 25 of the Arms Act as well.  Different sentences were  

awarded in respect of each of the offences proved against them, as  

mentioned above.   

2)All  the  aforesaid  six  accused persons  filed  appeals  before  the  High  

Court.  The High Court, vide the impugned judgment dated November 30,  

2011,  has  allowed  the  appeal  of  Banti  @  Yogender  Singh  thereby  

acquitting him of the charges framed against him.  However, appeal of  

Bharat is dismissed maintaining the conviction and sentence as ordered  

by the trial court.  Insofar as the third appeal, which was preferred by the  

remaining four accused persons is concerned, this was dismissed  qua  

Rahul  @  Shashi  Partap,  upholding  his  conviction  and  sentence,  and  

allowed qua Satender, Karambir and Manjit Singh, acquitting them of the  

charge of conspiracy and abetment framed under Section 109 and 120-B  

of IPC respectively.  

In essence, conviction of Bharat  

and Rahul @ Shashi Partap stands as per the judgment of the High  

Court.  

3)Challenging  their  conviction,  these  two  accused  persons  have  filed  

petitions for special leave to appeal, which were granted.  The appeal of  

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Bharat  is  numbered as Criminal  Appeal  No.  1528 of  2013 and that  of  

Rahul  @ Shashi  Partap is  numbered as Criminal  Appeal  No.  1519 of  

2013.  Against the acquittal of other four accused persons, the State of  

Haryana  has  preferred  special  leave  petition.   Their  acquittal  is  also  

challenged by the complainant Pawan Kumar Masta, which is number as  

Criminal Appeal Nos. 1526-1527 of 2013.  Thus, all these four appeals  

arise out of a common judgment of the High Court pertaining to the same  

trial.  That was the reason for hearing all these appeals together, which  

are being disposed of by this singular judgment.

We may point  out  at  this  stage  

itself that as Karambir died after the pronouncement of the judgment  

by the High Court, while issuing notice in the special leave petitions  

filed by the State of Haryana, the aforesaid fact was taken note of  

and the SLP against him stood abated.  Notice was also not issued  

against Manjit  Singh and Banti @ Yogender Singh as the special  

leave  petitions  filed  qua  them  were  also  dismissed.   Therefore,  

insofar as the appeals against acquittal are concerned, they relate  

only to Satender.  

4)With this preliminary introduction of the subject matter, we advert to the  

incident which took place, as projected by the prosecution.

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5)FIR No. 414 dated November 06, 2004 was registered on the complaint  

of Pawan Kumar Masta, who stated in his evidence that on November 05,  

2004 at about 7.30 p.m., he was sitting near the Panwari Wala Mandir  

near  Police  Station  City  Bhiwani  along  with  his  elder  brother  Ramesh  

Masta, Dinesh Kumar and Sonu Masta.  They were all  talking to each  

other.  Ramesh Masta was President of City Congress of District Bhiwani.  

Ramesh Masta received a phone call on his Mobile No. 9812027194 and  

he started attending to the same after moving away from his accomplices  

to a distance of about 4-5 paces.  In the meantime, three young boys  

came on a motorcycle of a silver colour without bearing any number plate.  

Rahul @ Shashi Partap fired a shot on the head of Ramesh Masta with  

his pistol.  Rahul @ Shashi Partap was accompanied with a thin boy, who  

was wearing a blue check shirt, aged 22-24 years and was of wheatish  

complexion.  The boy, who had kept the motorcycle in a running condition,  

was having a normal body and was aged about 22-24 years.  He could  

identify the other two persons along with Sonu and Dinesh, if they were  

brought before them.  All the three persons after firing the shot had sped  

away on the motorcycle.

The  cause  of  grudge  was  that  

Ramesh  Masta  was  running  a  private  school  at  Bawari  Gate,  

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Bhiwani.  Karambir wanted to get the illegal possession of the said  

school.  In this regard, they had done some firing in the school and  

in  the said  incident,  Ramesh Masta had escaped uninjured.   On  

February  09,  2004,  Ramesh  Masta  was  again  attacked  and  he  

suffered a fire shot.  A criminal case was registered on the basis of  

the statement of Ramesh Masta.  A writ petition had been filed in  

this  Court  by  Ramesh Masta  seeking  proper  investigation  of  the  

case from another agency.

6)As is clear from the above, as per the prosecution, three persons took  

active  part  in  killing  Ramesh  Masta,  who  had  come  at  the  place  of  

occurrence on a motorcycle.  Specific role is attributed to Rahul @ Shashi  

Partap, who had fired the shot from his pistol, which hit on the head of  

Ramesh Masta.  The motorcycle was being driven by Bharat.  As per the  

prosecution, Satender had also fired a shot from his pistol, though it did  

not hit the victim (as noted hereinafter, this act attributed to him has not  

been proved).  Insofar as other three accused persons, namely, Karambir,  

Manjit Singh and Banti @ Yogender Singh, are concerned, charge against  

them was of conspiracy and abetment.

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7)The prosecution, in order to prove its case, examined twenty witnesses.  

Thereafter, statements of all  the accused persons were recorded under  

Section 313 of the Code of Criminal Procedure, 1973 and the trial court  

found all of them guilty of the charges levelled against each of them.

8)Insofar as injuries suffered by the deceased and the medical evidence  

are  concerned,  three  witnesses,  namely,  Dr.  S.S.  Malik  (PW-6),  Dr.  

Rajender Rai (PW-12) and Dr. Ritu Kaura (PW-14), were examined.  Dr.  

Rai  was  in  the  emergency  ward  of  General  Hospital,  Bhiwani  when  

Ramesh Masta was brought to him in an injured condition.  He deposed  

this fact and also stated that there was history of gunshot head injury and  

the patient was not fit to make a statement.  After giving first aid, Ramesh  

Masta was referred to PGIMS, Rohtak and ruqa to this effect was sent by  

Dr. Rai to the Police Post of General Hospital, Bhiwani.

Dr.  S.S.  Malik  (PW-6)  was  on  

duty  in  the  emergency  ward  of  PGIMS,  Rohtak,  when  Ramesh  

Masta was brought to the said hospital on November 05, 2004.  He  

stated that there were gunshot injuries on his head and he expired  

at 9.55 p.m. in spite of treatment given to him.  He sent ruqa to this  

effect to the In-charge of Police Post, PGIMS, Rohtak at 10.00 p.m.

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Post-mortem  of  the  aforesaid  

body of Ramesh Masta was conducted by Dr. Ritu Kaura (PW-14).  

On  the  basis  of  the  said  examination,  she  found  the  following  

injuries on his person:

(a) Stitched  wound  7  cm  horizontal  was  

present in the lower part occipital 3 cm below occipital protuberance.  

On further dissection, subcutaneous tissue blackened in the middle.  

Skull  bone fractured.  Brain matter was coming out.  Ecchymosis  

was present.

(b) Stitched wound of size 7 cm present in  

right parietal region obliquely placed.  Front end 6 cm right to middle  

line and 7 cm above the middle of right eyebrow.  Posterior end 8  

cm from the  midline.   On  further  dissection  skull  bone  fractured  

Everett.  Brain matter was coming out.  Ecchymosis were present.

She  also  opined  that  cause  of  

death was due to haemorrhage and shock and injury to vital organ,  

i.e.  brain,  which is  sufficient  to  cause death  in  normal  course of  

nature and further that the injuries were ante-mortem in nature.

9)As  pointed  out  above,  the  High  Court  has  acquitted  the  accused  

persons  of  the  charge  of  conspiracy,  which  resulted  in  acquittal  of  

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Satender, Karambir and Manjit Singh.   Since Karambir has died and the  

special  leave  petition  against  Manjit  Singh  was also  dismissed,  in  the  

appeal filed by the State as well as the complainant Pawan Kumar Masta,  

we are concerned with the validity of the acquittal order passed in respect  

of  Satender,  which  depends  upon  the  issue  as  to  whether  charge  of  

common intention has been proved or not as there is no overt act on his  

part  except  that  he  was  also  on  the  motorcycle  along  with  the  two  

convicts/ appellants.

10)No doubt, charge of conspiracy was also levelled against Satender.  

But  it  was in  respect  of  all  others  and other  three against  whom only  

charge of  conspiracy under  Section 120-B IPC was framed they have  

been acquitted of thsi charge.  Still we have gone through the judgment of  

the High Court and evidence on this charge.  The only witness examined  

in respect of this charge was Ghanshayam Dass (PW-3).  He deposed  

that he was a neighbour of Ramesh Masta as well as of Karambir’s family.  

He  knew both  the  families.   Two  days  prior  to  the  death  of  Ramesh  

Masta, he had gone to the house of Karambir along with Satish.  They  

heard the talk through window of the house of Karambir.  Karambir was  

telling Bharat, Rahul, Satender, Banti and Manjit that he was having old  

enmity  with  Ramesh  Masta,  who  had  been  saved  in  previous  two  

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incidents but this time, he should not be able to go alive.  Karambir told  

Banti and Manjit to supply weapons to Rahul, Satender and Bharat and  

said that the rest would be done by the said accused.  Then they entered  

the house of Karambir and talked about their work with him but Karambir   

said that he was busy with his guests and they should come again.  They  

narrated the facts to the Police on January 30, 2005 as earlier they were  

scared from the accused persons.

11)The  High  Court,  after  critical  analysis  of  the  testimony  of  PW-3,  

declined to believe the truthfulness of his version.  Reasons given by the  

High Court in coming to this conclusion are as follows:

“So  far  as  the  evidence  led  by  the  prosecution  qua  conspiracy  is  concerned,  the  statement  of  PW-3  Ghanshayam  Dass  fails  to  inspire  confidence.  The  said  witness  had gone to  the  house  of  appellant  Karambir  a  couple  of  days  prior  to  the  death  of  Ramesh  Masta.  Ramesh  Masta  had  died  on  5.11.2004  at  9.55  p.m.  However,  the  statement  of  PW-3  was  recorded  by  the  police on 30.1.2005 for the first time.  The said witness in  his cross-examination deposed that he had never met the  police prior to recording of his statement.  The Investigating  Officer had also not met him.  He had not been called by  the Police.  The said witness resides near the houses of  Karambir and the deceased.  He further deposed that he  had gone  to  the  hospital  to  enquire  about  the  health  of  injured Ramesh Masta but had not attended the cremation  of deceased Ramesh Masta nor had gone to his house to  offer  condolence.   He  was  joined  by  the  police  during  investigation  of  the  previous  incident.  Thus,  from  the  statement of PW-3, it is evident that he did not disclose the  talk  heard  by  him  to  anybody  prior  to  recording  of  his  

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statement on 30.1.2005.  Surprisingly, the name of the said  witness was duly mentioned in the list of witnesses in the  final  report  prepared  by  the  investigating  officer  on  6.1.2005.   The  said  report  is  available  on  record  as  Ex.DA/1.  A perusal of the same reveals that the names of  Satish  Kumar  and  Ghanshayam Dass  are  mentioned  at  serial Nos. 9 and 10 in the list of witnesses (Ex.DC).  Since  PW Ghanshayam  Dass  had  not  met  the  police  prior  to  recording  of  his  statement  on  30.1.2005,  then  how  his  name could be mentioned in the list  of  witnesses in the  final report prepared on 6.1.2005.  Learned State counsel,  who  is  assisted  b  the  learned  senior  counsel  for  the  complainant, has failed to reconcile the said discrepancy.  In  these  circumstances,  the  statement  of  PW-3  Ghanshayam Dass fails to inspire confidence.  It appears  that  the  said  witness  has  been  introduced  by  the  prosecution  to  involve  appellants  Karambir,  Manjit  Singh  and Banti in this case.  Hence, appellants Karambir, Manjit  Singh and Banti are liable to be acquitted.”

12)After hearing the counsel for the parties, we are in agreement with the  

aforesaid  approach  of  the  High  Court,  which  rightly  discarded  the  

statement  of  PW-3 as  untrustworthy  because of  various  discrepancies  

pointed out in this statement and his conduct which is unnatural.   The  

High Court is, therefore, right in holding that there was a possibility that he  

has been introduced by the prosecution to involve the other three persons  

in this case.  

With this, stage is now ripe for dealing  

with each appeal.

CRIMINAL APPEAL NO. 1519 of 2013

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13)As  already  noticed,  main  role  in  the  killing  of  Ramesh  Masta  is  

attributed to Rahul @ Shashi Partap, who had fired the gunshot resulting  

into the head injuries, which became the cause of this death.  He has  

been convicted by the trial court and his conviction has been upheld by  

the High Court as well.  We find from the record that complainant – Pawan  

Kumar Masta appeared as PW-1 and deposed as per the contents of the  

FIR.   He,  thus,  is  an eye witness to the whole episode.   He not  only  

identified Rahul @ Shashi Partap, but also identified Bharat as driver of  

the  motorcycle  and   

Satender  as  pillion  rider.   Another  eye  witness  is  Mr.  Dinesh,  who  

appeared as PW-2 and corroborated the statement of PW-1 narrating the  

incident in identical manner.  Other main witnesses are those who were  

involved  in  the  investigation,  including  PW-13  Sub-Inspector  Satyavir  

Singh, PW-18 Inspector Darshan Lal, PW-19 Inspector Ram Avtar, PW-8  

Inspector  Dharampal,  PW-7  Mr.  Rameshwar  Dhariwal,  Divisional  

Engineer at Mobile Switching Centre, Panipat and Shri J.B. Gupta, Chief  

Judicial Magistrate, who appeared as PW-11 and deposed to the effect  

that  Satender  and  Bharat  were  produced  before  him  with  their  faces  

covered  in  mufflers  along  with  an  application  for  holding  a  Test  

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Identification Parade, but the accused persons have declined to join the  

same.  

14)It  is not necessary to describe in detail  the deposition of the Police  

officials  named above,  who had appeared as witnesses,  inasmuch as,  

learned  counsel  appearing  for  Rahul  @  Shashi  Partap,  even  for  that  

matter  learned counsel appearing for  Bharat,  the other convict,  did not  

make any submissions pointing out any irregularities or infirmities in the  

investigation  carried  out  by  these  officers.   The  only  argument  of  the  

learned counsel appearing for Rahul @ Shashi Partap, was that he was  

falsely implicated by the complainant and he was innocent.  However, he  

could not point out any defect in the findings of fact recorded by the two  

courts below accepting testimonies of PW-1 and 2, the two eye witnesses,  

as  reliable,  unimpeachable  and  trustworthy.   After  going  through  the  

record again, including their depositions, we are of the opinion that the two  

courts below have rightly found the statements of the two eye witnesses  

worthy of credence.  Based thereupon, under no circumstances, Rahul @  

Shashi Partap, who had fired the gunshot, which hit the head of the victim,  

can escape his liability.  Moreover, the evidence of the eye witnesses is  

corroborated by the medical evidence available on the record.  In addition,  

there was also recovery of country made pistol of Rahul @ Shashi Partap  

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along with the motorcycle, which was used for the crime, vide Recovery  

Memo Exhibit  P-G,  from Rahul  @ Shashi  Partap  on  the  basis  of  the  

disclosure statement made by him.  Thus, the prosecution established,  

beyond reasonable doubt, the involvement of Rahul @ Shashi Partap in  

commission of  the crime with cogent,  relevant  and direct  evidence.   It  

would be worthwhile to note that in his statement recorded under Section  

313 of the Code of Criminal Procedure, 1973, apart from stating that he is  

innocent and it was a blind murder case, his only defence was that there  

was a revenue litigation between his father Karambir and the deceased  

Ramesh  Masta  and  that  Karambir  and  Ramesh  Masta  had  contested  

elections  of  Municipal  Corporation,  Bhiwani  against  each  other  and  

because of these reasons, Ramesh Masta and his family members were  

nursing grudge against Rahul @ Shashi Partap and his family members.  

Once the actus reus is established, motive has been provided by Rahul @  

Shashi Partap himself in his statement under Section 313 of the Code of  

Criminal Procedure, 1973.  We, thus, are of the opinion that the trial court  

rightly held Rahul @ Shashi Partap guilty of murder under Section 302  

IPC as well as in possession of illegal arms thereby convicting him under  

Section 25 of the Arms Act.

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15)For the foregoing reasons, this appeal is liable to be dismissed and is,  

accordingly, dismissed.

CRIMINAL APPEAL NO. 1528 OF 2013

16)Insofar  as  this  appeal  filed  by  Bharat  is  concerned,  argument  of  

learned counsel appearing for him was that he has not played any active  

role.  The allegation against him was that he was riding the motorcycle.  

However,  this  motorcycle  did  not  belong  to  him  and  was  not  even  

recovered from him.   Learned counsel  made a passionate plea to the  

effect that the prosecution had failed to prove common intention and also  

that Bharat even had any knowledge that Rahul @ Shashi Partap was  

going to shoot Ramesh Masta.  He also submitted that Bharat was not  

even named in the FIR.  He was not associated with Rahul @ Shashi  

Partap and it was Rahul who had a grudge against the deceased.  He  

further argued that in the Arrest Memo (Exhibit DZ), the date was changed  

from 07.11.2004 to 09.11.2004, which throws doubt upon the involvement  

of Bharat, who was unnecessarily roped in at a later stage.  Pleading that  

in  such circumstances Bharat  also should have been acquitted by the  

Court, as was done in the case of Satender by the High Court, who was  

also a pillion rider, he referred to the judgments of this Court in  Abdul  

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Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259 and Ram Nath  

@ Mamaji @ Jiwanlal v. State of Madhya Pradesh, AIR 1953 SC 420.

17)In Abdul Sayeed (supra), this Court observed as under:

“49.  Section 34 IPC carves out an exception from general  law  that  a  person  is  responsible  for  his  own  act,  as  it  provides  that  a  person  can  also  be  held  vicariously  responsible  for  the act  of  others  if  he has the “common  intention”  to  commit  the  offence.  The  phrase  “common  intention” implies a prearranged plan and acting in concert  pursuant to the plan. Thus, the common intention must be  there prior to the commission of the offence in point of time.  The  common  intention  to  bring  about  a  particular  result  may also well develop on the spot as between a number of  persons,  with  reference  to  the  facts  of  the  case  and  circumstances  existing  thereto.  The  common  intention  under  Section 34 IPC is  to  be understood in a  different  sense  from the  “same intention”  or  “similar  intention”  or  “common  object”.  The  persons  having  similar  intention  which is not the result of the prearranged plan cannot be  held guilty of the criminal act with the aid of Section 34 IPC.  (See Mohan Singh v. State of Punjab, AIR 1963 SC 174)”.

18)In  Ram Nath @ Mamaji @ Jiwanlal  (supra), the relevant discussion  

for our purposes, is as follows:

“18. The further contention of Dr. Tek Chand that the High  Court was in error in holding that the provisions of Section  34  were  attracted  to  the  facts  of  the  case  is  also  well  founded.  There  is  no  evidence  whatsoever  of  any  premeditation or of a prearranged plan by the assailants of  murdering Sunder.  The conclusions of  the High Court  in  para.  53  of  its  judgment  seem  to  be  based  more  on  conjectures than on admissible material. No act or conduct  on the part of the accused has been proved from which an  inference of a prearranged plan to murder Sunder could be  raised.

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Even if  it  is  held  proved  that  all  the  appellants  were  seen at that spot at the time of firing this fact by itself could  not  be held enough to prove a common intention of  the  appellants to murder Sunder. It can well be that these four  persons were standing together and one of them suddenly  seeing Sunder fired at him. This possibility has not been  eliminated  by  any  evidence  on  the  record.  In  such  a  situation when it  would not be known who fired the fatal  shot, none of such persons could be convicted of murder  under Section 302, I. P. C. It seems to us that in this case  the High Court  failed to appreciate the true effect  of  the  decision  of  the  Privy  Council  in--'Mahbub  Shah  v.  Emperor', AIR 1945 PC 118 (A), and its judgment in regard  to  the  applicability  of  Section  34,  I.  P.  C.  has  to  be  reversed.”

19)We are unable to chew any of the aforesaid submissions of the learend  

counsel.  Argument of the learned counsel that Bharat was not named in  

the FIR would hardly be of any consequence.  In the FIR, the complainant  

categorically  stated  that  three  young  aged  boys  came  upon  the  

motorcycle  of  silver  colour  without  number  plate.   Clear  description of  

Rahul @ Shashi Partap with parentage and residential address is given.  

It is further stated in the FIR that along with Rahul there was another boy  

who was riding the motorcycle and had kept the motorcycle in start mode.  

He was having normaly body and his age was about 22-24 years.  Thus,  

not only the complainant gave the physical description and age of Bharat,  

he even identified him in the Court.  More pertinently, when Bharat was  

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produced by the Police after his arrest before PW-11 Mr. J.B. Gupta, Chief  

Judicial Magistrate, along with an application for holding Test Identification  

Parade, Bharat refused to join the same.  Further, his conduct of not only  

riding  the  motorcycle,  but  stopping  the  same  at  the  spot  where  the  

deceased was standing and keeping the engine of the motorcycle running  

clearly leads to the conclusion that  he was well  aware of  the plans of  

Rahul @ Shashi Partap and was a party in executing the same.  The  

purpose of keeping the motorcycle in a running condition was to escape  

from the place as soon as Rahul @ Shashi Partap fires the shot.  Rahul,   

who had alighted from the motorcycle along with Satender, came back  

and Bharat eloped with them while riding the motorcycle.  It would also be  

relevant  to  mention  that  the  motorcycle  was recovered  from Rahul  @  

Shashi  Partap  on  the  disclosure  statement  made  by  Bharat.   Merely  

because Bharat was not the owner of the motorcycle is neither here nor  

there as it is totally irrelevant.  Fact is that he was riding the motorcycle  

and  had  gone  with  Rahul  @ Shashi  Partap  to  commit  the  murder  of  

Ramesh.  The conduct, behaviour and active role of Bharat, along with  

Rahul, clearly depicts his knowledge as well as common intention of two  

of them to commit the crime.  On these facts, Bharat cannot take help of   

the judgments cited by the learned counsel.  Once common intention is  

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proved establishing the ingredients of Section 34 IPC, Bharat becomes  

vicariously liable to the same magnitude as Rahul, who actually shot the  

victim.

20)Insofar as change of date in the Arrest Memo is concerned, it is also  

not of any avail to Bharat simply because of the reason that this Arrest  

Memo was produced on record by Inspector Ram Avtar (PW-19) who had  

arrested Bharat.  However, no question about this date was put to him in  

the cross-examination so as to give an opportunity to PW-19 to explain  

the same.

21)Having regard to the aforesaid facts, the judgments relied upon by the  

learned counsel appearing for Bharat have no application in the present  

case.  Accordingly, Criminal Appeal No. 1528 of 2013 filed by Bharat is  

dismissed.

CRIMINAL APPEAL NO. 1521 OF 2013 CRIMINAL APPEAL NOS. 1526-1527 OF 2013

22)This leaves us to the case of Satender, who has been acquitted by the  

High  Court  and  challenging  his  acquittal  appeals  are  preferred  by  the  

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State as well as the complainant.   He had also gone along with Rahul @  

Shashi Partap and Bharat and was a pillion rider.  However, the reason for  

acquittal of Satender was that no overt act had been attributed to him by  

any of the eye witnesses.  It was only during investigation the prosecution  

tried to portray that he had also fired a shot from his pistol, which he was  

carrying, but it had missed the target.  This act of attribution, namely, he  

had  fired  the  shot  but  it  had  missed,  could  not  be  proved  by  the  

prosecution  during  trial.   Even  the  eye  witnesses  did  not  depose that  

Satender was armed with any weapon.  From this the High Court drew the  

inference that during investigation and with a view to strengthen its case  

against Satender, the investigating agency had tried to build up the said  

story.  The High Court was of the view that since no overt act had been  

attributed  to  Satender  by  the  eye  witnesses  and  there  was  no  such  

allegation in the FIR also, the possibility that he had been falsely involved  

in  this  case  cannot  be  ruled  out.   He  was not  even  identified  by  the  

complainant at the first instance.  Nothing could be shown which could  

prove that he also had common intention, along with the two convicts, to  

kill  the deceased or had knowledge about the designs of the other two  

persons with  whom he had allegedly  gone on motorcycle.   Therefore,  

judgment  in  Ram  Nath  @  Mamaji  @  Jiwanlal  (supra)  becomes  

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applicable in his case.  Thus, prosecution case qua him has been found  

doubtful for the aforesaid reasons.

23)We are of the view that sufficient reasons are given by the High Court  

in order to come to a conclusion that case against Satender has not been  

proved beyond reasonable doubt.  Once such a benefit of doubt is given  

after sifting and analysing the evidence and the findings are not perverse,  

it would not be appropriate to reverse that finding in these proceedings  

under Article 136 of the Constitution of India.  The appeal of State as well  

as the one filed by the complainant against the acquittal of Satender are,   

accordingly, dismissed.

.............................................J. (DR. B.S. CHAUHAN)

.............................................J. (A.K. SIKRI)

NEW DELHI; MAY 23, 2014.

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