Yunus v. State of Uttarakhand

Judgment

1. Since all these appeals arise from a common judgment and order, they are being heard and decided together.

2. All these appeals have been preferred against the judgment and order dated 12.12.2012, passed in Sessions Trial No.169 of 2004, State vs. Yunus and Sessions Trial No.498 of 2004, 2 State vs. Brijendra and another, by the court of Fifth Additional Sessions Judge, Haridwar. By the impugned judgment and order, the appellants Yunus and Bijendra have been convicted under Section 302 read with Section 34 IPC and sentenced to life imprisonment with a fine of `5,000/- each. Appellant Bijendra has further been convicted under Sections 506(2) IPC and sentenced to one year rigorous imprisonment with a fine of `1,000/-. One of the accused in the case, Sanjay Pal has been acquitted.

3. Criminal Appeal No.367 of 2012 has been preferred by the appellant Yunus, Criminal Appeal No.371 of 2012 has been preferred by the appellant Bijendra against their conviction and sentence and Criminal Appeal No.147 of 2013 has been preferred by the first informant against the acquittal of respondent no.2, Sanjay Pal.

4. Shorn of unnecessary details the prosecution case briefly stated as per FIR is a follows:- (i) On 04.03.2003, informant Nitin Rana (PW1) was standing just below his house at 10:30 in the night along with two of his uncles namely, Harendra Singh and Sudhir, who had visited them on that date from Bulandshahr. At that time, the deceased Rajpal Singh arrived in his Indica Car bearing Registration No.DL8C-F-6768. He stopped the car. As soon as he alighted from the car, the FIR states that a white colour Indica Car bearing Registration No.UA08 4700 followed him and appellant Yunus and two other unknown persons de-boarded from that car and 3 opened fire at Rajpal Singh, due to which, he fell on the ground. The appellant Yunus and his associates boarded the same car, in which, they had come and ran away towards Block. The informant with the help of Harendra Singh (PW10) and Sudhir took the deceased to the Pal Nursing Home, where police had also arrived. Since, incident had implications, as per advise of the doctor, according to the FIR, the informant took the deceased to Civil Hospital Roorkee, where he was declared brought dead. The dead body was still in the mortuary in the civil hospital when the FIR was lodged. The FIR further records the motive, according to it, the deceased had got some construction carried out through the appellant Yunus. There was a dispute with regard to the accounts. The appellant Yunus had on multiple occasions, telephonically threatened the deceased to his life and on many occasions, the appellant Bijendra had also while taking side of the appellant Yunus, threatened the deceased. (ii)

According to the FIR, on 04.03.2003 in the evening, appellant Bijendra had threatened the deceased telephonically when he was in Kankhal, sitting with Onkar Singh, Arun Bhatnagar and Bhanwar Singh. Based on this report, chik FIR (Ex. A-11) was recorded and a case under Sections 302, 120-B IPC was lodged against the appellants Yunus, Bijendra and two others. The extracts of General Diary Entry is Ex. A-8. The inquest of the deceased was conducted on

05.03.2003 (Ex. A-4) and the dead body was sent for 4 postmortem. Postmortem of the deceased was conducted on 05.03.2003 by PW6 Dr. K.C. Pant. The Investigating Officer (“IO”) prepared a site plan of the incident (Ex. A-9) and on 05.03.2003 itself, took into possession a cartridge case of .315 Bore. He prepared a recovery memo (Ex. A-10). The clothes and other articles were sent for forensic examination. Forensic Science Laboratory, Agra, Uttar Pradesh (“FSL”) reported that the cartridge case was fired from the .315 rifle, which was sent for examination. This report is Ex. A-14. There is another FSL Report (Ex. A-15) with regard to the clothes, etc. of the deceased. (iii) In the instant case, by the order of the court, cartridge case and .315 rifle were further sent for examination the Central Forensic Science Laboratory, Chandigarh. This report is Ex. A-18, which reveals that the cartridge case was not fired through .315 rifle, that was sent for examination. Its genuineness has been admitted by the defence.

5. It may be noted that just opposite to the place of incident, there was a police picket post. PW9 Sub-Inspector Udai Veer Singh Sirohi with Police Constables was on duty at the picket post at the time of incident. He also reached at the place of incident and immediately informed Police Control Room about the incident. The document of Police Control Room is Ex. A-3. It records at 10:33 PM that, “at Ramnagar Chauraha, the occupants of a Maruti car white colour No. UA08 4700 fired at some person”. This is Ex. B-3. The Police Control 5 Room was again informed at 10:50 PM on the same date that the person, who was shot, has been killed and he was Rajpal Singh. This extract of Police Control Room record is Ex. B-4. They both have been proved by PW12 Nanke Singh Jainwar, who was Inspector CBCID at the relevant time and who conducted the final investigation and submitted charge-sheets.

6. After investigation, a separate charge-sheet has been submitted against the appellant Yunus, which is Ex. A-13 and the charge-sheet against the appellants Bijendra and Sandeep alias Sanjeev and Sanjay Pal is Ex. A-14.

7. On 14.06.2004, charge under Section 302 read with Section 34 and 506 IPC was framed against the appellant Yunus and on 09.08.2005, charge under Section 302 read with Section 34 and Section 506 IPC was framed against the appellant Bijendra and Sandeep alias Sanjeev and Sanjay Pal.

8. During trial of the case Sandeep alias Sanjeev had died, therefore proceedings have been abated against him.

9. In order to prove its case, the prosecution has examined 13 witnesses namely, PW1 Nitin Rana, PW2 Onkar Singh, PW3 Smt. Pushpa Devi, PW4 Jitendra Singh, PW5 Dr. Ajay Agarwal, PW6 Dr. K.C. Pant, PW7 Mahendra Singh Negi, PW8 Ajay Chauhan, PW9 SI Udai Veer Singh Sirohi, PW10 Harendra Singh, PW11 Constable Naresh Kumar, PW12 Nanthey Singh Jainwar and PW13 Constable Pradeep Maithani. 6

10. The appellants were examined under Section 313 of the Code of Criminal Procedure, 1973 (“the Code”). According to them, they have been falsely implicated. All the documents were forged to implicate them. By the impugned judgment and order, the appellants Yunus and Bijendra have been convicted and sentenced, as stated hereinbefore; and Sanjay Pal has been acquitted. Aggrieved by their conviction, the appellants Yunus and Bijendra have preferred appeal against their conviction and sentence, whereas PW1 Nitin Rana, who is the informant, had preferred the appeal against the acquittal of Sanjay Pal.

11. Heard learned counsel for the parties and perused the record.

12. Learned Senior Counsel appearing for the appellant Bijendra would submit that it is an entirely false case; the eye- witnesses are not reliable; in fact, they had not seen any incident. He had raised the following points in his submission:- (i) No role of firing has been assigned to the appellant Bijendra in the FIR. (ii) In the FIR, initially the car number was recorded as UA08 7900, but subsequently, it was changed. (iii) Had PW1 Nitin Rana, PW3 Smt. Pushpa Devi and PW10 Harendra Singh witnessed the incident and PW1 Nitin Rana and PW10 Harendra Singh taken the deceased in an injured condition to the hospital in the car, the clothes of PW1 Nitin Rana and PW10 Harendra Singh would have stained in blood and the car would have also witnessed blood spot. It is argued that neither in the clothes of the witnesses nor blood was detected from the car, in which, the deceased was allegedly taken to hospital. 7 (iv) The facts and circumstances of the case, makes the presence of PW1 Nitin Rana, PW3 Smt. Pushpa Devi and PW10 Harendra Singh much doubtful at the place of alleged incident. (v) The presence of PW3 Smt. Pushpa Devi is not recorded in the FIR. It is serious omission, which is material to the extent that it doubts the prosecution case. (vi) According to the witnesses, PW3 Smt. Pushpa Devi and PW10 Harendra Singh, they knew all the assailants. If it is so, why the FIR has not been named against all the four persons and why their role has not been assigned in the FIR? (vii) The statement of PW8 Ajay Chauhan is also doubtful. According to him, he reached at Pal Nursing Home, whereas he admits that he left the police station after the report was lodged. It is argued that in the instant case, the FIR was lodged after the death of the deceased, when his dead body was kept in the mortuary in Civil Hospital Roorkee. In such situation, PW8 Ajay Chauhan had no occasion to visit Pal Nursing Home after lodging of the FIR. (viii) According to PW5 Dr. Ajay Agarwal, the dead body of deceased was brought to the Civil Hospital Roorkee at 11:20 PM on

04.03.2003 by PW8 Ajay Chauhan. (ix) Even PW9 Udai Veer Singh Sirohi also says that PW8 Ajay Chauhan had reached at the place of incident. (x) Based on these assertions, it is argued that had the family members of the deceased been on the spot, they would have immediately taken the deceased to the hospital and in such situation, the police would have no opportunity to take the deceased to the hospital, as stated by PW5 Dr. Ajay Agarwal. (xi) All the eye-witnesses namely, PW1 Nitin Rana, PW3 Smt. Pushpa Devi and PW10 Harendra Singh are chance witnesses. PW1 Nitin Rana was studying in Dehradun. PW3 Smt. Pushpa Devi is a divorced wife of the deceased, who was staying in her village and PW10 Harendra Singh was admittedly, staying in his village and had visited Roorkee on the date of incident. (xii) The FIR itself is much doubtful. It writes a story without any substantiated facts; it speaks of a threat extended by the appellant Bijendra to the deceased on the evening of

04.03.2003 in the presence of Onkar Singh, Arun Bhatnagar 8 and Bhanwar Singh, but it is not clear even after trial, as to how this has been recorded in the FIR because PW2 Onkar Singh has not stated that he told it to PW1 Nitin Rana that any threat was extended telephonically to the deceased on that evening. (xiii) It is argued that, in fact, the FIR is ante time. It was lodged after much deliberation so as to cook up a story. (xiv) Some signed statements were given by the witnesses to the IO. Those signed statements may still be treated as former statements. In support of his contention, learned Senior Counsel has placed reliance on the principle of law as laid down in the case of State of U.P. vs. M.K. Anthony, (1985)1 SCC 505 and State of Rajasthan vs. Teja Ram and others, (1999)3 SCC 507 (xv) In the case of M.K. Anthony (supra), Hon’ble Supreme Court inter alia held that merely a signed statement was given to the IO by the witness, his statement in the court, may not be discarded. The Hon’ble Supreme Court observed as follows:- “……………………If the Investigating Officer did obtain the signature of Nair an Intimate friend of the respondent speaking about the confession of the respondent, it may be that it may be a violation of Section 162 of the Code of Criminal Procedure but no attempt was made to verify this fact by referring to the case diary. The court is always entitled to look into the case diary. Assuming that Nair's admission that his signature was obtained on the statement recorded by the investigating officer on March 1, 1973, is correct, it does not render his evidence inadmissible. It merely puts the court on caution and may necessitate in-depth scrutiny of the evidence. But the evidence on this account cannot be rejected outright.” (xvi) Similar, proposition has been laid down in the case of Teja Ram (supra).

13. Learned counsel appearing for the appellant Yunus has adopted the arguments as advanced on behalf of the appellant Bijendra. In addition to it, it is argued that, in fact, appellant Yunus has raised certain construction for deceased Rajpal Singh and the 9 deceased had to pay `8 Lakhs to him. Therefore, in order to avoid payment to the appellant Yunus, he has been falsely implicated.

14. Learned counsel for the appellant, Nitin Rana, the informant, who is PW1, would submit that prosecution has been able to prove the case beyond reasonable doubt against the appellants Yunus, Bijendra and Sanjay Pal. It is argued that the presence of PW9 Udai Veer Singh Sirohi at the spot is not doubtful. He immediately informed the Police Control Room about the incident.

15. Learned counsel for the appellant Nitin Rana (PW1) submits that in the evening of 04.03.2003, appellant Bijendra had admittedly made a telephonic call to the deceased, as confirmed by the appellant Bijendra in his statement given under Section 313 of the Code. It is argued that it supports the prosecution case. He would submit that PW1 Nitin Rana, PW3 Smt. Pushpa Devi and PW10 Harendra Singh had witnessed the crime having been committed by the appellants Yunus, Bijendra and others. PW9 Udai Veer Singh Sirohi had reached at the spot and informed the Police Control Room immediately. PW8 Ajay Chauhan initially conducted the investigation. He had also reached at Pal Nursing Home from where he took the deceased to hospital, thereafter he returned to the police station where the report was lodged. Learned counsel would submit that there was a motive to kill the deceased; there is eye-witness account of it; medical evidence supports prosecution case. Therefore, the appeals preferred by the appellants Yunus and Bijendra deserve to be dismissed while the appeal 10 preferred by the appellant Nitin Rana (PW1) deserves to be allowed and the respondent no.2, Sanjay Pal in that appeal is liable to be convicted of the charges framed against him.

16. Learned counsel for the respondent no.2 Sanjay Pal submits that the prosecution has utterly failed to prove the case against Sanjay Pal, therefore, he has rightly been acquitted and the appeal preferred by Nitin Rana is liable to be dismissed.

17. Learned State counsel would submit that no interference is warranted in the impugned judgment and order. He would submit that the conviction of appellants Yunus and Bijendra and acquittal of Sanjay Pal is in accordance with law based on the evidence that is available. Therefore, all the appeals deserve to be dismissed.

18. Before the arguments are appreciated it would be apt to examine as to what the witnesses have stated. According to the prosecution, there are three eye-witnesses. They are PW1 Nitin Rana, PW3 Smt. Pushpa Devi and PW10 Harendra Singh.

19. PW1 Nitin Rana is the informant. According to him, his father was raising a complex in Kankhal. He was present there on

04.03.2003 at 09:00 PM. He telephoned his wife at his residence. On that date the uncles of this witness namely PW10 Harendra Singh and Sudhir had also come. After receiving the phone call, according to this witness, his mother PW3 Smt. Pushpa Devi went downstairs and after a while his uncles PW10 Harendra Singh and Sudhir also went downstairs. When they did not return, this witness also followed them. He found that his mother was quite tensed. He inquired about it. She revealed that the deceased had telephoned her and has been asking about Bijendra, as to whether 11 he is waiting for him in his house? According to PW1 Nitin Rana, his mother has also told him at that time that Bijendra had threatened the deceased on that date. At about 10:30 PM, the deceased came in front of his house. It may be noted here that the house was on the first floor rear side and there was a gallery for proceeding to that house. It is explicit from the site plan, which is Ex. A-9.

20. PW1 Nitin Rana says that as soon as his father, the deceased arrived, the appellant Yunus and two other persons alighted from a vehicle bearing Registration No.UA08 4700. One of them had a rifle and two had country made pistols and they fired at deceased Rajpal Singh and ran away. One another person also opened fire. PW1 Nitin Rana has stated that the appellant Bijendra Singh did open fire with rifle and appellant Yunus fired through country made pistol. He has also stated that Sandeep alias Sanjeev and Sanjay Pal had also opened fire. The deceased was, thereafter, taken to Pal Nursing Home with the help of PW10 Harendra Singh and Sudhir. On the advise of doctors, he was taken to Civil Hospital, Roorkee, where he was declared brought dead. He gave FIR, Ex. A-1.

21. According to PW1 Nitin Rana, the deceased had some dispute with regard to accounts and in that matter the appellant Bijendra was taking side of the appellant Yunus. This witness categorically states that he knew about the appellant Yunus only at the time of incident, although he had heard the names of Bijendra and other persons. In answer to a question, he tells that after 2–3 12 days, he could identify the appellant Bijendra Singh and Sandeep alias Sanjeev and Sanjay Pal as was told to him by his mother.

22. PW3 Pushpa Devi presents a somewhat different version. She was the wife of the deceased. According to her, her husband was constructing a complex in Kankhal through the appellant Yunus. On 04.03.2003, PW10 Harendra Singh and another brother of deceased namely Sudhir had come to meet the deceased. At 09:00 PM, the deceased telephoned her and inquired about the appellant Bijendra and told that he is threatening him to life. Ten Minutes thereafter, according to this witness, appellant Bijendra also telephoned her and inquired about the deceased. PW3 Smt. Pushpa Devi says that she was little disturbed, therefore, she went downstairs. Her both brother-in-laws i.e. PW10 Harendra Singh and Sudhir came downstairs and asked, as to why she has come out of the house? Half an hour thereafter, the deceased along with one Bhanwar Singh came and told this witness that he is returning shortly after dropping Bhanwar Singh at his residence. In the meanwhile, PW1 Nitin Rana also reached there.

23. PW3 Smt. Pushpa Devi states that at 10:30 PM, as soon as the deceased returned and walked towards his house, she saw that four persons opened fire on the deceased. According to this witness, the appellant Bijendra had a rifle, the appellant Yunus had a country made pistol. Sandeep alias Sanjeev and Sanjay Pal also had country made pistol, from which, they fired. Due to this firing, the deceased fell on the ground. This witness saw the incident in the tube light. Thereafter, all the assailants ran away from the place of incident in two vehicles. The appellants Bijendra, 13 Yunus and Sanjeev left the place of incident in Indica Car bearing Registration No.UA08 4700, whereas Sanjay Pal left the place of incident in Maruti Gypsy bearing Registration No. DNC 4333.

24. It may be noted that according to the FIR, there was one vehicle and all the assailants were not named in the FIR, but PW3 Smt. Pushpa Devi later named the assailants, assigned them role and also tells that they left the place of incident in two vehicles.

25. PW10 Harendra Singh is brother of the deceased. He, in his examination-in-chief has corroborated the statement of PW3 Smt Pushpa Devi and had specifically given the registration numbers of both the vehicles i.e. Indica Car No.UA08 4700 and Maruti Gypsy DNC 4333.

26. PW2 Onkar Singh, who according to the FIR was present with the deceased when he received a threatening call from the appellant Bijendra. PW2 Onkar Singh has stated so. PW4 Jitendra Singh is a witness to the inquest.

27. PW5 Dr. Ajay Agarwal was posted at Civil Hospital, Roorkee on the date of incident. According to him, on that date at 11:20 PM, PW8 Ajay Chauhan, who was Station House Officer (“SHO”), Police Station Gangnahar, Roorkee brought the deceased Rajpal Singh to the hospital, who was already dead. This witness reported the incident to the Police Station Gangnahar. He proved the communication Ex. A-2. This is an information which simply records that the deceased was brought dead in the hospital on 14

04.03.2003 at 11:20 PM. The deceased was brought by Ajay Chauhan, SHO, Police Station Gangnahar, Roorkee.

28. PW6 Dr. K.C. Pant conducted the postmortem of the deceased on 05.03.2003. According to him, he found ante mortem injuries on the person of the deceased:- 1) Fire Arms Injury: In the size of 1.2 cm x 1.22 cm stomach deep, in 12 o’clock position. 15 cm below from the right Nipple and 20 cm above from the navel, which was bleeding. The margins were inverted, they were burnt, black, the internal parts of the stomach were damaged; metallic parts were also detected from the body. 2) Firearm wound entry wound: 1cm x 1.2 cm. Margin inverted burnt and black. The internal organs were damaged. Two metallic pieces were detected from the body.

29. According to the doctor, the cause of death is shock and hemorrhage and ante mortem firearm injuries. PW6 Dr. K.C. Pant has also detected two large pieces of metal. He gave all those pieces along with the clothes of the deceased to the police.

30. PW8 Ajay Chauhan is an important witness. He was posted as SHO, Police Station Gangnahar, Roorkee on 04.03.2003. According to him, after lodging of the FIR in the instant matter, he took up the investigation, prepared inquest and other documents. He proved inquest report Ex. A-4 and other documents related to it i.e. Ex. A-6 to Ex. A-8. He prepared site plan Ex. A-9 and took into custody cartridge case. He proved the Recovery Memo Ex. A-10. According to this witness on 21.03.2003, the investigation was transferred to the CBCID.

31. PW7 Mahendra Singh Negi is the IO, who states that he took up the investigation of the matter on 02.04.2003 after it was 15 transferred from CBCID. He has recorded the statements of certain witnesses. According to him, thereafter, he was transferred.

32. PW9 Udai Veer Singh Sirohi is a very important witness. He was posted at a Police Picket Post, which was just opposite to the place of incident. According to him, on the date of incident, he was on duty. At 10:30 PM, he heard some fire shots and noticed some commotion at a distance of 100 paces. When he reached at the place of incident, he saw Rajpal Singh in an injured condition and he also noticed a white Indica Car UA08 4700 moving fastly from there. He was told by the persons present at the spot that the assailants had ran away in the fleeing car. According to this witness, he had no vehicle, therefore, he could not chase the Indica Car, but he informed his seniors about the incident.

33. PW11 Constable Naresh Kumar has lodged the FIR in the instant case. He has proved the chik FIR Ex. A-11 and General Diary Entry extract Ex. A-12.

34. PW12 Nanthey Singh Jainwar states that on

28.04.2003, he was posted as Inspector, CBCID, Dehradun, when he received the investigation, he verified the statements of the witnesses recorded by the earlier IO. He also verified the site plan and submitted charge-sheet against the appellant Yunus, which is Ex. A-13. He also proved the charge-sheet submitted against the appellant Bijendra Singh and against Sandeep alias Sanjeev and Sanjay Pal, which is Ex. A-14. 16

35. In the instant case, PW1 Nitin Rana has also stated that 2–3 days after the incident, when his mother told him the name of the other assailants, he could recognize them and he could further recognize them, when he was threatened, of which, he had given a report. PW13 Constable Pradeep Maithani has proved the NCR No.1 of 2005 lodged by PW1 Nitin Rana against the appellant Bijendra. He proved the chik FIR, extract of G.D. Entry and other documents.

36. On behalf of the defence, DW1 Yashpal Singh has been examined. He has stated that on 04.03.2003, at 09:30 PM, the appellant Bijendra along with his family had visited the house of Sansar Singh, where there was a marriage ceremony and he stayed there till 10:30 PM. He also tells that on 05.03.2003, in the morning also, Bijendra was present in marriage ceremony in the house of Sansar Singh.

37. It is a criminal trial. The burden is on the prosecution to prove its case beyond reasonable doubt. An innocent should not be convicted, but equally, the principle of criminal law is that a guilty person should not be let go. This should be the basic theme of appreciation of evidence. In the case at hand, the prosecution is not required to prove the case beyond absolute doubt. As stated, it should be proved beyond reasonable doubt.

38. In the case of Shivaji Sahabrao Bobade and another vs. Statement of Maharashtra, (1973)2 SCC 793, the Hon’ble Supreme Court has reflected on this aspect and observed as follows:- 17

6. Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned Author [ Glanville Williams in ‘Proof of Guilt’.] has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted “persons” and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that “a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent .…” In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these lines long ago.

39. What is proved is defined under the statue. In the case of K. Ponnuswamy vs. State of T.N., (2001)6 SCC 674, the Hon’ble Supreme Court on this aspect observed as follows:- 18 “27. ……………………There can be no dispute with the legal proposition. However, let us see what is meant by “proved”. Section 3 of the Evidence Act defines “proved” as follows: “3. ‘Proved’.—A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.” Further, Section 114 of the Evidence Act reads as follows: “114. Court may presume existence of certain facts.—The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” Thus the fact is said to be proved when after considering the matters before it, the court believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. In coming to its belief the court may presume existence of any fact which it thinks likely to have happened having regard to the natural course of event, human conduct and public and private business, in relation to the facts of each case.”

40. Similarly, in the case of Iqbal Moosa Patel vs. State of Gujarat, (2011)2 SCC, 198, the Hon’ble Supreme Court discussed the concept of beyond reasonable doubt and in paras 23 and 24 observed as follows:- “23. It is true that the prosecution is required to establish its case beyond a reasonable doubt, but that does not mean that the degree of proof must be beyond a shadow of doubt. The principle as to what degree of proof is required is stated by Lord Denning in his inimitable in Miller v. Minister of Pensions [(1947) 2 All ER 372] : (All ER p. 373 H) “… That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence ‘of course it is possible, but not in the least probable,’ the case is proved beyond reasonable doubt….” 19 “88. It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land.”

24. Reference may also be made to the decision of this Court in Sucha Singh v. State of Punjab [(2003) 7 SCC 643 : 2003 SCC (Cri) 1697] where this Court has reiterated the principle in the following words: (SCC p. 653, para 20) “20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh [(1990) 1 SCC 445 : 1990 SCC (Cri) 151 : AIR 1990 SC 209] ). The prosecution is not required to meet any and every hypothesis put forward by the accused. … A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish.””

41. What is ‘proved’, ‘disproved’, ‘not proved’ and where is the place of ‘suspicion’ and ‘great suspicion’ in these concepts. The incident ‘could have’ happened or ‘has happened’. What is the distance between, “may be” and “must be”. These concept have been elaborated by the Hon’ble Supreme Court in the case of Sujit Biswas vs. State of Assam, (2013)12 SCC 406. In para 13 of it, the Hon’ble Supreme Court observed as follows:- “13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that “may be” proved, and something that “will be proved”. In a criminal trial, 20 suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between “may be” true and “must be” true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide Hanumant Govind Nargundkar v. State of