Darshan Singh v. State of Uttarakhand

(First Investigating Officer), P.W.11- Constable Ravi Kumar, P.W.12- S.I. Ravi Kumar (Second Investigating Officer), P.W.13-Dinesh Chandra, P.W.14 Vishal Sharma, P.W.15- V.C. Pant (Third Investigating Officer), P.W.16- Koshlendra Tripathi, P.W.17- Dhyan Singh (Fourth Investigating Officer), P.W.18- Khadak Singh, and P.W.19- Mukesh Gururani. Statements of the accused under Section 313 Cr.P.C. were recorded. The accused did not produce any evidence in defence.

5. P.W.1 Constable Ravindra Kumar stated on oath that he, on receiving the written report, prepared the Chik F.I.R. (Ext. A-1) and made entry in the G.D.

6. P.W.2 is Diwan Singh, who lodged the F.I.R. at Police Station. This witness proved the F.I.R. Besides the contents of F.I.R., which have already been adverted to in preceding paragraph, he stated on oath that two persons were already sitting in white Alto Car No.UK04-W-2839, whose names are Darshan Singh and Gurpreet Singh@Gopi, and Devendra Singh@Bau fled away from the spot by the said car towards khatadi.

7. P.W.3 Kuldeep Singh Manral, stated on oath that, at around 01:30 p.m., Devendra@Bau took out Tamancha and with intention Virendra@Veeru shot him on his left side of his chest. He further stated that Darshan Singh Gurpeet@Gopi were sitting in a car, ignition whereof was already on. He stated that Devendra@Bau sat in that car and fled away towards khatadi.

8. P.W.-4 Anil Dholiya, in his testimony, has stated that Darshan Singh was sitting on the driver seat and Gurpreet Singh was sitting beside him and Devendra Singh@ Bau was standing near another car, which was about 10-15 steps away from the said car. He stated that Devendra Singh@Bau shot firearm to Virendra Manral from his back and, thereafter, ran away towards the said car, while showing his Tamancha.

9. P.W.-5 Chandan Singh Mehta, on oath, stated that he saw Devendra@ Bau and Darshan Singh on that day. He stated that Devendra@Bau shot firearm at Virendra Singh Manral and, thereafter, Devendra@Bau, Darshan Singh and Gurpreet fled away in the said car.

10. P.W.-6 is S.I. Indrajeet, who proved Ext. A-5, Ext. A-6, Ext. A-7, Ext. A-8, Ext. A-9, Ext. A-10, Ext. A- 12 and Ext. A-13.

11. P.W.-7 Dr. Harender Malik is the Medical Officer, who conducted Post Mortem on the person of Virendra Manral. Relevant extract of the wounds sustained by the deceased is reproduced below: “1. Fire arm injury entry wound coller shaped wound, punctured wound 1.5 cm x .5 cm x cavity deep. Over left side of chest about 5.5 inch from axilla side below.

2. adjacent to injury no.1 upper side abrasion of 2 cm x .5 cm.”

12. P.W.-8 is Devender Singh, in whose presence the Tamancha was recovered and he proved Ext.A-15. P.W.-9 is S.I. Kashmir Singh, who proved Ext.A-16, Ext.A-17, Ext.A-18, Ext.A-19, Ext.A-20, Ext.A-21, Ext.A-22, Ext.A-23, Ext.A-24, Ext.A-25, Ext.A-26, Ext.A-27, Ext.A-28, Ext.A-29 and Ext.A-30. P.W.-10 is Vikram Singh Rathore (First Investigating Officer), who proved Ext.P-31 and Ext.P-32 and Ext.P-44. P.W.11 is Constable Ravi Kumar, who proved Ext.P-34. P.W.12 is S.I. Ravi Kumar (Second Investigating Officer), who proved Ext.P-35. P.W.14 is Vishal Sharma, who is a Nodal Officer in Vodafone Idea Ltd., who provided call details, location chart etc. to the Investigating Officer. P.W.15 is S.I. Vipin Chandra Pant, who, in his testimony, has stated that as per the call details, Mobile No.7068090346 belongs to Dharmendra and not to Darshan Singh. He proved Ext.P-38 and, after investigation, submitted charge sheet against Devendra Singh@ Bau, Darshan Singh, Gurpeet Singh, on

3.12.2108, under Section 302, 120-B, 34 I.P.C. He further stated that charge sheet under Section 25 Arms Act was also filed against Devendra Singh@ Bau. He also proved Ext.P-39. P.W.16 is Koshlendra Tripathi, who is a Nodal Officer in Bharti Airtel Ltd., who provided call details of the accused to the Investigating Officer. He proved Ext.P-40, Ext.P-41, Ext.P-42, Ext.P-

43. P.W.17 is S.I. Dhyan Singh, who proved Ext.P-45, Ext.P-46, Ext.P-47, Ext.P-48, Ext.P-49, Ext.P-50, Ext.P- 51, Ext.P-52, Ext.P-53, Ext.P-54, Ext.P-55, Ext.P-56, Ext.P-57, Ext.P-58, Ext.P-59, Ext.P-60 and Ext.P-61. P.W.18 is Khadak Singh, who is a Tempo driver. In his testimony, he has stated that on the fateful day, he saw Sanjay Kandpal@Sonu going towards the Court. P.W.19 is Mukesh Gururani, who is owner of a mobile shop. He stated on oath that he is running the said shop from 2011. He stated that Mobile No.8475997153 was sold by him to Smt. Sheela in the year 2015.

13. Mrs. Pushpa Joshi, learned Senior Counsel for the appellant submitted that the appellant was neither named in the F.I.R. nor identified by the complainant at the place of incident and his name was later added in the charge sheet. She submitted that the mobile number, which is being associated with the appellant, was never used by the appellant and it belonged to the other person named Dharmedra, therefore, his mobile location cannot be determined by the C.D.R. procured by the investigation. She submitted that the Mobile Number 7068090346 being associated with appellant was not registered in his name and the investigation could not establish the identity of the owner of the sim and the number was being used by another person, however, the investigation did not interrogate the person in whose name the sim was registered and was using the said number. She further submitted that there is no evidence to prove that the appellant was present at the place of incident except the public witnesses, who identified the appellant before the Court in their evidence. She submitted that no test identification parade was conducted. She submitted that prosecution has failed to prove beyond reasonable doubt the intention behind committing the alleged crime by the appellant, which is a key ingredient to attract Section 302 I.P.C. She submitted that, on the basis of Matriculation Certificate, the appellant was juvenile, as he was was less than 18 years of age at the time of alleged incident, therefore, he is entitled to benefit of Section 12 of Juvenile Justice (Care and Protection of Children) Act, 2015. She argued that trial of the appellant was conducted before Sessions Court, instead of Juvenile Court and, as such, the entire trial of the appellant was without jurisdiction. She submitted the Court below, without considering entire evidence and material available on record, wrongly convicted the appellant.

14. On the other hand, Mr. J.S. Virk, Deputy Advocate General for the State submitted that the appellant did not take the plea of juvenile during investigation and even in the trial, therefore, the assertion of juvenility cannot be considered at the belated stage. He submitted that the name of the appellant came into light on the basis of the statement of the witnesses and, thereafter, investigation was carried out and it was found that appellant was involved in the crime. He submitted that appellant is associated with the main accused and he was the driver of the vehicle, which was used in the crime and was in start condition from which main accused and the appellant fled away from the place of incident.

15. Mr. Maneesh Bisht, learned counsel for the complainant submitted that mobile number associated with the appellant, which is evident from the Customer Application Form, wherein the name of the appellant is clearly mentioned. He submitted that P.W.2, P.W.-3, P.W.-4 and P.W.-5, who are eyewitnesses of the instant crime, in their statements, have named the appellant. He submits that there is cogent and direct evidence against the appellant on the basis of which he has been rightly convicted.

16. We have considered the submission advanced by learned counsel for the parties and have perused the papers available on record. From perusal of the F.I.R., it is evident that appellant was not named in the F.I.R. and his name came into light on the basis of the statements of the witnesses. As regards plea of appellant being juvenile is concerned, it is apparent from the report dated 03.08.2024 submitted by Juvenile Justice Board, Nainital that appellant was juvenile on the date of incident. From perusal of the statement of the witnesses, it is apparent that the sim number being associated with the appellant was not registered in his name and the sim was registered in the name of Dharmendra, and was being used by him, however, the investigation did not interrogate the person, who was using the said number.

17. As regard the claim of juvenility of the appellant, this court vide its order dated 25.07.2024, have directed to the Juvenile Justice Board to determine the age of the appellant, as the plea of juvenility have been raised for the first time in appeal. In pursuance of the order dated 25.07.2014, the board submitted its report vide letter dated 3.08.2024 and have assessed the age of the appellant as 17 years 3 months and 13 day on the date of the incident.

18. Hon’ble Supreme Court in the case of “Abuzar Hossainj Vs. State of West Bengal”, reported in (2012) 10 SCC 489, has held as follows:

39.1. A claim of juvenility may be raised at any stage even after the final disposal of the case. It may be raised for the first time before this Court as well after the final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in the appeal court.

19. That the judgment of conviction of the appellant cannot be sustained on account of discrepancies in the evidence of the eyewitnesses and also on account of omission of the prosecution to connect the appellant with acceptable material evidence with the crime; the sim number, on the basis of which the location and movement of the appellant was alleged to have been established near the crime scene, does not belong to the appellant and, in fact, it was registered in the name of Dharmendra. Furthermore, the prosecution failed to summon Dharmendra as a witness, who was a necessary witness regarding the sim number on the basis of which appellant was connected with the crime.

20. Consequently, the Criminal Appeal is allowed and the impugned judgment & order dated 15.06.2023, passed by learned Sessions Judge, Nainital in Sessions Trial No.04 of 2019, is hereby set aside.

21. Appellant stands acquitted from the charge framed against him. He is in jail. Let a copy of this judgment be sent to the Superintendent of the Jail concerned, who may set the appellant at liberty forthwith, if he is not wanted in connection with any other crime.

22. Let the lower court record along with the copy of this judgment be forwarded to the learned trial Court for information. (G. NARENDAR, C.J.) (ALOK MAHRA, J.) Arpan