Complainant's acquittal appeals against accused charged with conspiring in the gunshot murder of her husband. The High Court found the dying declaration doubtful, no clinching evidence of motive or conspiracy, and upheld the acquittals.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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2026:CGHC:22195-DB
Digitally signed by MOHAMMED AADIL KHAN Date: 2026.05.19 18:27:47 +0530
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
ACQA No. 34 of 2015
1 - Smt. Mukesh Dagar Wd/o Late Rajesh Dagar, Aged About 37 Years, R/o Maruti Enclave, Tatibandh, Raipur, Civil and Revenue DistrictRaipur, Chhattisgarh, At Present R/o House No. 272, C/o Jai Singh Yadav, Ground Floor, Near Shubham Store, Naharpur, Sector-7, Rohini, New Delhi- 110085, Delhi
--- Appellant
versus
1 - Ranvir Singh @ Lala S/o Raghuvir Singh, Aged About 30 Years, R/o House No. 484, Mundaka, P.S. Mundaka, District North Delhi., Delhi
2 - Jitendra @ Monu Luthra S/o Gulshan Luthra, Aged About 30 Years, R/o Gali No.1, Nayi Abaadi, District- Rewadi Haryana, District : Rewari, Haryana
3 - Kamal @ Kaushal Jatiya (Deleted) As Per Hon'ble Court Order Dated 06-05-2026
4 - Viraiyya Sheikhar S/o G. Viraiyya, Aged About 46 Years, Cast- Tamil Banniyar, R/o Ambika Vihar, New Dehli, Vest Vihar, P.S. Ambika Vihar, New Delhi, District : New Delhi, Delhi
5 - State of Chhattisgarh Through S.H.O. Amanaka, Raipur, Chhattisgarh, District : Raipur, Chhattisgarh
--- Respondents
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ACQA No. 92 of 2017
1 - Smt. Mukesh Dagar Wd/o Late Rajesh Dagar, Aged About 37 Years, R/o Maruti Enclave, Tatibandh, Raipur, Civil and Revenue District Raipur, Chhattisgarh. At Present R/o House No. 272, C/o Jai Singh Yadav, Ground Floor, Near Shubham Store, Naharpur, Sector- 7, Rohini, New Delhi- 110085., Delhi
---Appellant
Versus
1 - State of Chhattisgarh S/o Through SHO Amanaka, Raipur, DistrictRaipur, Chhattisgarh., Chhattisgarh
2 - Tinu @ Satender Singh S/o Balbir Singh, Aged About 33 Years, R/o Flat No. 66, Suruchi Apartment, Sector- 10 Dwarika, New Delhi., District : New Delhi, Delhi
3 - Preetam S/o Shriram Kumar Aged About 36 Years, R/o Flat No. 52, Sector- 23, Pocket- 1 D, D. A. Flat No. Dwarika, New Delhi., District : New Delhi, Delhi
--- Respondents
(Cause-title taken from Case Information System)
| For Appellant | : Mr. Ritesh Kumar and Mr. Piyush Patel, Advocates (inboththe appeals) |
|---|---|
| For Respondent/State For Respondents No. 1, 2 and 4 (in ACQA No. 34/2015) |
: Mr. Shaleen Singh Baghel, Govt. Advocate. : Mr. Maneesh Sharma, Amicus Curiae |
| For Respondents No.2 and 3 (in ACQA No.92/2017) |
: Mr. Maneesh Sharma, Advocate. |
Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board
Per Ramesh Sinha, Chief Justice
12-05-2026
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15.07.2011, and a supplementary charge sheet was filed against him on 22.09.2011. The accused Dhanna @ Dharmendra was also arrested on 26.08.2014, and another supplementary charge sheet has been filed against him before the learned trial Court. Subsequent to that, the two other accused persons, Tinu @ Satender and Preetam, have been arrested, and a supplementary charge sheet has been filed against them also. Their case was also committed to the learned Sessions Court for trial as per respective supplementary charge sheets filed against them, and they were put to trial accordingly. The initial four accused persons Ranvir Singh @ Lala, Jitendra @ Monu Luthra, Kamal @ Kaushal Jatiya and Viraiyya Sheikhar were acquitted by the learned trial Court vide its judgment dated 05.03.2013, the accused Dhanna @ Dharmendra Singh was acquitted by the learned trial Court vide its judgment dated 31.01.2015 and the accused persons Tinu @ Satender Singh and Preetam have been acquitted by the learned trial Court vide its judgment dated 13.01.2016. The complainant has filed the present two acquittal appeals against the judgment dated 05.03.2013 and 13.01.2016, respectively, and has not filed any acquittal appeal against the judgment dated 31.01.2015 by which the accused Dhanna @ Dharmendra has been acquitted.
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Thakurdev mandir main road. After hearing the noise, the people of the vicinity gathered there, including the complainant Pranjal Tiwari (PW-1). They saw the deceased in an injured condition in the driver’s seat of his car. At the same time, the police also came, and the deceased disclosed his name as Rajesh @ Raju Singh. He was being taken to the hospital where his dying declaration was recorded; however, he succumbed to his injuries later on. Pranjal Tiwari PW-1 lodged dehati nalisi Ex.-P/1 and thereafter, FIR Ex.-P/62 was registered against an unknown person for the offence under Section 307 of the IPC. The injured was taken to B.R. Ambedkar Hospital, Raipur, where he was being treated for his injuries. Gunshot injury over the chest and abdomen was found by the doctor, and his indoor patient summary sheet Ex.-P/39 was maintained. During the treatment, the dying declaration of the deceased Rajesh Dagar Ex.-P/85 was recorded by Additional Tahsildar, Raipur on 24.01.2011 at 10:25 a.m., but he died at 12:10 p.m on the same day. The merg intimation was given by the doctor of Ambedkar Hospital, Raipur, to the jurisdictional police station, where merg intimation Ex.-P/19 was recorded. Inquest of the dead body of the deceased Ex.-P/90 was prepared in the presence of the witnesses, and then the dead body was sent for its postmortem to Pt. J.N.M. Medical College, Raipur, where PW-16 Doctor Shiv Narayan Manjhi and Doctor R.K. Patel conducted postmortem of the dead body of the deceased, who gave their postmortem report Ex.-P/34. While
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conducting the postmortem, the doctor has noticed the following injuries on the dead body:-
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The doctor has opined that the death was due to haemorrhage and shock as a result of firearm injury to the body, the death was homicidal in nature, and the duration of injuries was within 12 hours prior to death. A short postmortem report Ex.-P/35, was also given by the doctor.
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the car and two bullets from the rear door of the car have been seized vide seizure memo Ex.-P/5. The blood stains were wiped out through the piece of cotton from the driving seat of the said Santro car vide seizure memo Ex.-P/6. One piece of regzine seat cover having blood stains and another piece of plain seat cover has been seized from the Santro car vide seizure memo Ex.-P/7. One pair of Hawai chappal and two mobile phones have also been seized from the car vide seizure memo Ex.-P/8. The clothes of the deceased have also been seized at Dr. B.R. Ambedkar Hospital, Raipur, vide seizure memo Ex.-P/9. One IDIS card of deceased Rajesh, the bill of the hotel has been seized from Gagan Palace hotel, Tatibandh Raipur vide seizure memo Ex.P/14. One passbook of SBI, which was in the name of Ranvir Singh and a copy of the sale deed have been seized vide seizure memo Ex.-P/29. The household articles have been seized from the House No. B/20, Maruti/Harshit Nagar, Raipur vide seizure memo Ex.-P/30, which was given in supurdnama to Ranvir @ Lala through the document Ex.-P/31. One notebook maintained by a cyber café with respect to the railway reservation of the deceased Rajesh from Raipur to Delhi was also seized vide seizure memo Ex.-P/33. The police have also obtained the bed head ticket of the deceased, which is Ex.-P/39. The viscera of the deceased were seized vide seizure memo Ex.-P/40. The clothes of the deceased were also seized vide seizure memo Ex.-P/44. The rojnamcha dated 24.01.2011 of Police Station Amanaka,
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Raipur, is Ex.-P/47C by which the police received the information about the incident, and their departure rojnamcha is Ex.-P/48C. The police made a requisition to the doctor of Ambedkar Hospital, Raipur, about the condition of the deceased as to whether he can give a statement or not and then the doctor made an endorsement at 10:15 a.m. on 24.01.2011 that the patient can give a statement at present, and the document is Ex.-P/49 and P/83.
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Airport are Ex.-P/97 and P/98. The sanction for prosecution of the accused persons under Sections 25 and 27 of the Arms Act given by the District Magistrate, Raipur, is Ex.-P/99. The CDR of the mobile phones seized in the case are Ex.-P/100. To P/101. The permission obtained from the Ministry of Civil Aviation, Govt. of India, is Ex.-P/103. The pieces of seat cover, cotton pieces, clothes of the accused Jitendra @ Monu were sent to FSL examination to State FSL Raipur, from where report Ex.-P/104 was received, and blood was found on all the articles except the plain seat cover and plain cotton. During the investigation, one full shirt, full pant, SIM cards, a food junction card and a photograph of deceased Rajesh have been seized from accused Jitendra @ Monu, one Pulser bike, three SIM cards, one Tata Sky card, one bill, one photo of deceased Rajesh and one liquor bottle and glass have been seized from accused Kamal @ Kaushal. On the basis of the memorandum statement of Viraiyya Sheikhar Ex.-P/17, one mobile phone has been seized from him vide seizure memo Ex.-P/18.
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sheets/supplementary charge sheets have been filed against the accused persons respectively as per their arrest on different dates, as has been mentioned in the earlier part of this judgment.
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judgment dated 05.03.2013. On 21.08.2014, the accused Dhanna @ Dharmendra surrendered before the learned trial Court and then the charge against him was framed on 24.11.2014. The witnesses, who were earlier examined, were recalled for further examination/re-cross-examination by the accused Dhanna @ Dharmendra, and then the judgment was passed by the learned trial Court on 31.01.2015. Thereafter, when the other two coaccused persons, Tinu @ Satender and Preetam, were arrested, the case was again committed to the learned trial Court against those two other accused persons, Tinu @ Satender and Preetam, on 07.05.2015. The charge against these two accused persons was framed on 22.06.2015, and the learned trial Court proceeded with the trial of the case against them. On 25.06.2015, an application was filed by the accused Tinu @ Satender and Preetam through their counsel for admitting the documents which are already exhibited in the case during the earlier phase of trial and the evidence of the witnesses recorded thereunder. The accused persons were permitted to admit the documents as well as the evidence of witnesses, which are already on record vide order dated 26.06.2015.
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filed by the accused persons were allowed, and both these witnesses Doctor Narendra Narsingh and Pulak Bhattacharya, were recross-examined on 16.07.2015 and then the summons to the witnesses, Smt. Mukesh Dagar, Nishant Dagar and Bhupendra Kumar were issued vide order dated 17.07.2015. On 13.08.2015, despite service of summons upon the witness Ravinder Singh, he did not turn up for evidence and Smt. Mukesh Dagar represented through her counsel and made an application along with a copy of the order dated 04.08.2015 passed by the High Court in CRR No.627/2015, and then summons were issued to Smt. Mukesh Dagar, Nishant Dagar and a bailable warrant was issued to Ravinder Singh.
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case to any other court. Vide order dated 27.10.2015, the learned trial Court, for want of any order of transfer of the case to any other Court, continued the hearing of the case and again on 03.11.2015, it was observed by the learned trial Court that the witnesses Smt. Mukesh Dagar and Nishant Dagar had appeared before the trial Court and stated that they did not want to give evidence, and thus, these two witnesses were left without their re-cross-examination. He also issued an arrest warrant against two other witnesses, Ravinder and Bhupendra and issued a summons against Smt. Mukesh Dagar and Nishant Dagar. On 17.11.2015, Nishant Kumar Dagar appeared, and he was examined and cross-examined by the accused persons, and he made an application for the exemption from appearance of his mother, Smt. Mukesh Dagar submitted that due to the unavailability of railway reservations, she could not come. It has also been observed that since the prosecution has failed to serve the arrest warrant against the witness Bhupendra and Ravinder Singh, the issuance of further arrest warrants to them is not in the interest of justice and issued summons only to Smt. Mukesh Dagar. On 02.12.2015, a report was submitted by the police that the summons could not be served upon Smt. Mukesh Dagar, as she was not found at her given address and thereafter, observing the earlier sequence of events, the right to lead evidence of the prosecution was closed, and the case was fixed for the accused statement. Thereafter, after hearing the parties’ judgment was
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passed on 13.01.2016, and these two accused persons, Tinu @ Satender and Preetam, have also been acquitted of the offence.
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was immediately taken to the hospital, where his dying declaration Ex.-P/85 was recorded by the Addl. Tahsildar after obtaining the certificate of fitness. The doctor who treated the deceased has given a certificate in the documents Ex.-P/49 and P/83. He would also submit that the test identification parade of the accused persons has also been proved by the Tahsildar PW22, who conducted the TIP in accordance with law and the same is supported by other witnesses also. The learned trial Court has also erred in disbelieving the call details report to hold a conspiracy between the accused persons. The seizure of incriminating articles, a pistol, and cartridges has duly supported the prosecution that it was a preplanned murder by the accused persons in furtherance of their criminal conspiracy. Therefore, the impugned judgment of acquittal is liable to be set aside, and the accused persons may be convicted for the alleged offences.
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appearing in ACQA No. 92/2017 for accused persons/respondent Nos. 2 and 3 is appointed as Amicus Curiae on behalf of accused persons/respondent Nos. 1, 2 and 4 respectively in ACQA No. 34/2015 and he has consented for the same, hence the Court proceed to decide the appeal after hearing the learned counsel for the State as well as learned counsel for the accused persons/respondents in both the acquittal appeals.
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required to be drawn against her, which the learned trial Court has rightly done. The dying declaration allegedly made by the deceased is also full of suspicion with respect to his condition to give a statement and certification from the doctor for the same. He would also submit that in the dying declaration, the deceased raised suspicion that he was being killed by Tinu. However, it is only a suspicion, and in the absence of any cogent and clinching evidence about the conspiracy and acting upon the conspiracy, it cannot be said that the present respondents killed the deceased. The present respondents were not present at the sport, and to connect them with the offence in question, the prosecution is required to prove the link between the present respondents and the other accused persons through direct evidence or electronic evidence, which the prosecution has failed to do. Though there is a call details record, it has not been proved by the prosecution what their conversation was. He would also submit that the deceased was involved in the illegal activities of smuggling of rakta chandan and having criminal antecedents of various offences throughout the country, and there is every possibility of involvement of any other accused persons in the offence. The criminal history of the deceased has been admitted by the Investigating Officer. Thus, in the absence of any cogent, clinching and corroborative evidence regarding conspiracy and involvement of the accused persons in the offence in question, they cannot be convicted, and their plea of innocence has been
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supported by the judgment of acquittal. Therefore, the acquittal appeal has no merits and the same is liable to be dismissed.
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doubtful for the reason that PW-35 Doctor Manju Singh, who gave the first aid to the deceased, has stated in her evidence that the condition of the patient was very critical. Doctor Rajendra Agrawal PW-21, who also gave medical treatment to the deceased, has admitted in his cross-examination that the deceased was not in a position to talk about anything. He immediately referred him to the surgical department. The person who took him to the hospital, Pranjal Tiwari (PW-1), has also stated in his evidence that the deceased was in an unconscious condition and was not able to talk. When all these witnesses stated about the fact that the deceased was not in a condition to talk about anything, recording of his dying declaration by Pulak Bhattacharya, PW-42 cannot be free from any doubt. Except for saying one line that “eq>s NksVk HkkbZ us ejok;k gS” and “Vhuw us ejok;k gS”, thereafter, he again went into unconsciousness, which is doubtful.
“17. As the entire case is based on circumstantial evidence, we may make a useful reference to a leading decision of this Court on the subject. In the case of Sharad Birdhichand Sarda v. State of Maharashtra2, in paragraph 153, this Court has laid down five golden principles (Panchsheel) which govern a case based only on circumstantial evidence. Paragraph 153 reads thus : -
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“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra [(1973) 2 SCC 793] where the following observations were made:
19…..Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” (emphasis added).
“158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor-General relying on a decision of this Court in Deonandan Mishra v. State of Bihar, to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor-General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus:
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9…….But in a case like this where the various links as started above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, . . . such absence of explanation or false explanation would itself be an additional link which completes the chain."
30……..Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused." (emphasis added)”
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report to the police in the hospital, which is Ex.-P/1. On some part of his evidence, he was declared hostile. He denied the seizure of empty cartridges, Santro car, fired bullet, blood stains, pieces of the seat cover of the car, Hawai chappal, mobile phones and all other seizures. In cross-examination, he stated that when he arrived on the spot, the police officers were already there and at their instance he signed the documents.
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statement Ex.-P/12 to the police, and she also stated that she did not know the accused Viraiyya Sheikhar. She also denied that Viraiyya Sheikhar was a partner of her husband in sandalwood smuggling, and to avoid his liability to give the share of profit to her husband, Viraiyya Sheikhar killed her husband. In her evidence, except for the suspicion over the accused Satender and Preetam, nothing substantial could be extracted by the prosecution. Even though there is no sufficient basis for her suspicion, except for the self-serving statement of outstanding dues.
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body of his father from Raipur to Delhi by aeroplane were borne by Tinu @ Satender. He did not know about the arrest of other accused persons in the offence. His father was also involved in the business of sandalwood. He admitted that an FIR was registered against his father for smuggling of sandalwood, and to avoid his arrest in the said FIR, he was absconding. He also admitted that in Delhi, there was litigation going on against his father, and he also went to jail. He did not know that the business partner of his father, namely, Ravindra, was also wanted by Raipur and Haryana police, but his father was wanted by the police. He also admitted that in Delhi, his father was having enmity with various persons and therefore, he came to Raipur. From the evidence of this witness, though nothing substantive has come against the accused persons about their involvement in the offence or any conspiracy, it has come that there are various FIRs against the deceased at Raipur and Delhi and having enmity with various persons, and he hid himself and was residing at Raipur.
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back. Bhupendra and Satender were not happy with his flourishing business. In the year 2005, both these brothers threatened the deceased that they would kill him. Bhupendra and Satender raised a quarrel at Raipur with the deceased, and the criminal case is still pending. At Delhi, the cousin brother of the deceased Rajesh, namely, Preetam, lodged a false report at Delhi that the deceased Rajesh had outraged the modesty of his wife. After this incident, Rajesh came to Raipur and was ultimately murdered by hiring the killers. He also stated about the pressure upon the wife of the deceased by the sister of Rajesh, namely, Sudesh @ Guddi. At this stage, he has also been declared hostile, and he contradicted his police statement, Ex.P/28. In cross-examination, he stated that after the incident, he came to Raipur on 23rd February. After 10 days of coming to Raipur, his police statement was recorded. He did not know as to whether his brother-in-law was engaged in the smuggling of sandalwood, nor whether any offence had been registered by the Raipur police. He admitted that the accused persons Viraiyya Sheikhar, Jitendra, Ranvir and Kamal were having no enmity with his brother-in-law. He did not know the accused Viraiyya Sheikhar. The sister of the deceased Rajesh informed him by telephone that the accused Satender and Bhupendra had gone to Raipur to kill the deceased and to save him if he can.
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deceased Rajesh and accused Kamal together in the house, and he gave the mobile numbers of the accused Ranvir, Kamal and the deceased Rajesh. In the instance of the police, he made a call to the accused Ranvir, and then he informed him that he would come after 2-4 days. The bank account passbook of SBI, which is in the name of Ranvir and a copy of the sale deed were given to the police by him, and a seizure memo Ex.-P/29 was prepared. He also participated in the TIP and identified the accused Jitendra and Kamal. He stated that before participating in TIP, the crime branch police showed him the photographs of the accused persons and asked him to identify them. Since Kamal was his tenant and therefore, he identified him, and on the instance of Yamini madam, he identified the other accused persons and the TIP memo Ex.-P/21 was prepared. The crossexamination of this witness relates to the tenancy of the accused Kamal and Ranvir in his house to connect the accused persons with the conspiracy; however, his evidence is not sufficient to draw any inference that the accused persons conspired together to commit the murder of the deceased.
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deceased disclosed his name as Rajesh. He obtained the physical condition of the deceased from the doctor and made a request for the recording of the dying declaration to the SDM, which is Ex.-P/15. Thereafter, Pulak Bhattacharya, Executive Magistrate, was deputed for recording the dying declaration of the deceased, which is Ex.-P/51. Nothing is found against the accused in the evidence of this witness.
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Raipur and a food junction card of RK Mall have been seized from him. He also proved the various seizures from the accused persons. In cross-examination, he stated that the police team had gone to Delhi and conducted the investigation there. He proved the procedural aspect of the investigation that he conducted on his own part.
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time when the police asked about his condition, and his condition was gradually deteriorating.
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the criminal antecedents against the deceased Rajesh and the offence registered at Delhi, Haryana, Himachal Pradesh, Manipur, and West Bengal with respect to smuggling of red sandal wood (rakt-Chandan). He also admitted that the deceased was involved in various illegal activities and was wanted by various State police, and he hid himself from the police. He further admitted that there is no amount seized in the present case with respect to contract killing. There is no evidence on the record that Ranvir was well acquainted with Jitendra @ Kamal. He further stated that the call detail Ex.-P/100 and P/101 was obtained from the Crime Branch, and he could not tell as to from where they procured the said document.
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Pranjal Tiwari PW-1, Doctor A.K. Sharma PW-20, Doctor Rajendra Agrawal PW-21, Doctor Manju Singh PW-35 and Doctor Narendra Narsingh PW-41 the physical and mental condition of the deceased was deteriorating and almost in unconscious condition whereas, PW-42 Pulak Bhattacharya who allegedly recorded his dying declaration stated that as and when he entered into room the injured started giving statement that Tinu has killed him. In such a condition of his treatment, as reflected from the evidence of the doctors, it cannot be said that the injured can give any statement as has been recorded by Pulak Bhattacharya, PW-42. Further, from the evidence of Pulak Bhattacharya, PW-42, the presence of a doctor is there at the time of recording his statement, whereas doctor Narendra Narsingh, PW-41, clearly denied his presence at the time of recording the statement of the deceased. Obtaining the mental fitness certificate from the doctor is also suspicious, as the doctor has opined that the patient can give a statement at the moment, which was given at 10:15 a.m. on 24.01.2011, and his condition was deteriorating. After 10 minutes of the said opinion, his statement is said to have been recorded, but in view of his condition, it cannot be said that the deceased gave his dying declaration to the witness PW-42. The recording of the dying declaration Ex.-P/85 is not proved by reliable evidence about his physical condition to give the statement.
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commit murder of the deceased Rajesh, absence of any sufficient evidence with regard to motive to commit murder and further, there is no evidence of involvement of the accused persons in the offence in question and further that the deceased was having numerous criminal antecedents and enmity with various persons, by giving benefit of doubt, acquitted the accused persons from the alleged offences. It is also to be noted here that when the two accused persons, Satender @ Tinu and Preetam, were arrested, and they were put to trial, the wife of the deceased PW3 has not produced herself for her re-examination/crossexamination by these two accused persons and since the witness PW-3 Smt. Mukesh Dagar remain absent for her crossexamination; her evidence, which has been recorded earlier with respect to other accused persons, cannot be considered against the accused persons Satender @ Tinu and Preetam.
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“ 18. The right of an accused to watch the prosecution witnesses deposing before a court of law indisputably is a valuable right. The Sixth Amendment of the United States Constitution explicitly provides therefor, which reads as under:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence."
24. A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination-in-chief, cross-examination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to crossexamine a witness who had been examined in chief, subject of course to expression of his desire to the said effect. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. If an exception is to be carved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication. There are statutes like the Extradition Act, 1962 which excludes taking of evidence vis-à-vis opinion. (See Sarabjit Rick Singh v. Union of India [(2008) 2 SCC 417 : (2008) 1 SCC (Cri) 449]). 51. There is another aspect of the matter which cannot be lost sight of. No charge-sheet was filed against the appellant. In the chargesheet dated 27-8-1993, rightly or wrongly, he had been shown as absconding. In the absence of any charge-sheet no cognizance could have been taken against him in the sense that he could not have been directed to stand trial. It is not the contention of the respondents that the learned Magistrate despite the said charge-sheet dated 27-8-1993 had taken cognizance against him. Undoubtedly in the order dated 30-12-1993, while framing charges his name had been shown as an absconding accused. He was, therefore, not before the court. He could not have taken part in the trial. He was arrested formally only on 4-8-1993 and charges were framed against him only on 15-11-2003.
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52. We have noticed hereinbefore the respective dates of death of the witnesses concerned. All the witnesses expired prior thereto. The question of his exercising his right to cross-examine the said witnesses would have arisen only after the said date and not prior thereto. It is, in our opinion, incorrect to contend that such a right could be exercised at any date prior thereto. Such a question could have arisen provided he was facing trial. In that view of the matter we are also of the opinion that it was not a case wherein sub-section (5) of Section 14 of the Act would have been attracted since the order of the TADA Court specifically invoked Section 299 of the Code.
57. Mr Naphade would submit that the appellant did not suffer any prejudice. We do not agree. Infringement of such a valuable right itself causes prejudice. In S.L. Kapoor v. Jagmohan [(1980) 4 SCC 379] this Court clearly held: (SCC p. 395, para 24)
"24. …..In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The nonobservance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced.”
The Hon'ble Supreme Court in the matter of Jafarudheen and
Ors Vs. State of Kerala, (2022) 8 SCC 440 , has considered the scope of interference in appeal against acquittal in judgment at Para 25 which reads as under;
"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C., the appellate court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court
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has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that ensures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
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much conscious of the existing legal position as held in case of Jafarudheen (supra) and Kistoora Ram (supra) that in an appeal against acquittal, if two views are possible on the basis by the evidence laid by the prosecution and the trial court taking one view favoured the accused, reversion on the finding of acquittal by the appellate court taking the other possible view into consideration, is not permissible in law.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice
Aadil
2 issues framed by the court
Whether the trial court's acquittal of the accused on charges of conspiracy to murder could be reversed by the complainant's acquittal appeals.
Whether the dying declaration and circumstantial evidence proved the conspiracy conclusively.
Colour shows how this judgement treated each authority
Nagendra Sah v. State of BiharRelied on¶22
Nagendra Sah Vs. State of Bihar, 2021 (10) SCC 725 · Who else cites this
Digambar Vaishnav v. State of ChhattisgarhRelied on¶48
Digambar Vaishnav and another Vs. State of Chhattisgarh, (2019) 4 SCC 522 · Who else cites this
Jayendra Vishnu Thakur v. State of MaharashtraRelied on¶50
Jayendra Vishnu Thakur v. State of Maharashtra and Another, 2009 (7) SCC 104 · Who else cites this
Jafarudheen v. State of KeralaRelied on¶51
Jafarudheen and Ors Vs. State of Kerala, (2022) 8 SCC 440 · Who else cites this
State of Rajasthan v. Kistoora RamApplied¶54
State of Rajasthan Vs. Kistoora Ram, 2022 SCC OnLine SC 984 · Who else cites this
5 provisions across 4 enactments
Smt. Mukesh Dagar
Ranvir Singh @ Lala
Jitendra @ Monu Luthra
Kamal @ Kaushal Jatiya (deleted)
Viraiyya Sheikhar
State of Chhattisgarh
Ramesh Sinha
Ravindra Kumar Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
