Commissioner of Income Tax - V vs. M/s. sirveen Control systems

The present appeal has been directed against judgment dated 20.04.2011 passed by learned 2nd Additional Sessions Judge, Jammu (hereinafter referred to as, “trial Court”) in case titled “State of J&K Vs. Gulji Bhai and others” vide which respondents have been acquitted of the charges for offences under Sections 302/307/34 RPC. 2. The case set up by the appellant-State is that in the intervening night of 16/17th of July, 1999 an army patrol party, headed by Lt. Sanjiv Dahiya was on patrol towards a forward post and when it reached at BSF bunker, the respondents, who were BSF personnels on duty at the bunker, opened fire on the patrol party, whereby three Army personnels were killed and one of them sustained bullet injuries. Initially, the incident was treated as an operational Sr. No. 10

Respondents were charge-sheeted by the trial Court on 12.10.2006 whereby they pleaded innocence and claimed trial, prompting the trial Court to ask for the prosecution evidence. 5. Prosecution has examined as many as 28 witnesses to establish guilt of the respondents. Respondents in their statements under Section 342 Cr. P.C have denied the incriminating imputations arrogated to them and opted not to enter the defence. Learned trial Court after analysing the prosecution evidence has concluded that respondents were involved in the alleged commission of offences on the basis of suspicion only, thus prosecution failed to prove the charges beyond reasonable shadow of doubt. Accordingly, respondents have been acquitted as noticed at the outset. 6. The appellant-State has questioned the impugned judgment on the conventional grounds that learned trial Court has failed to appreciate the evidence in right perspective, impugned judgment has been passed in a mechanical fashion and there was sufficient material in the shape of documentary evidence on record to sustain conviction of the respondents. 7. Having heard the rival contentions and perused the impugned judgment, we find ourselves in total agreement with the findings recorded therein. 8. While Mr. Amit Gupta, learned AAG has reiterated the grounds urged in the memo of appeal, Mr. P.N. Raina learned senior counsel appearing for the respondents has vehemently argued that there is absolutely no evidence on record connecting the respondents with the commission of offences for which they have been charged.

For the sake of brevity, instead of a detailed resume of the prosecution evidence, relevant extract of testimonies of the prosecution witnesses are proposed to be referred as and when required. 10. Before a closer look at the grounds urged in the memo of appeal, it seems indispensible to briefly recall the prosecution story, though at the cost of brevity. 11. It is the prosecution case that on the intervening night of 16/17th of July, 1999 an army patrol party, headed by Lt. Sanjiv Dahiya was on patrol to a forward post and when it reached at BSF bunker, patrol party was fired upon by the respondents, who happened to be BSF personnels. Lt Sanjiv Dahiya, NK Jai Narain Tripathi and Sep. Data Ram were killed in the incident, whereas Sep. Keshav Singh sustained serious bullet injuries. It is pertinent to mention that initially, incident was treated as an operational accidental death. 12. It is further case of the prosecution that the reality surfaced on the recovery of the injured Sep. Keshav Singh. The injured revealed that he was a member of the patrol party headed by Lt. Sanjiv Dahiya. Lt Sanjiv Dahiya informed the BSF Post Pargal and left towards Malabela Post. They reached the BSF Bunker and blinked the torch, as a mode of signal, but there was no response from the other side. Lt Sanjiv Dahiya went upstairs and found BSF personnels asleep. According to injured Sep. Keshav Singh, when Lt. Sanjiv Dahiya admonished the BSF personnels, who were found asleep on duty and informed them that they were moving towards the Malabela Post, respondents- BSF personnels opened indiscriminate fire upon the patrol party thereby killing three Army men and he sustained serious injuries. 13. From the prosecution story narrated above, in general, and statement of the injured PW- Keshav Singh, in particular, it is evident that PW-Keshav Singh

It is also statement of the injured PW- Keshav Singh that after getting injured he crawled towards the river, fell in the river and was carried by the river current to a distance of about 30-40 feet. He remained in the river for the night and when he found the Army patrol in the morning, he cried to attract its attention, on which he was picked by the Army patrol party. He further stated that he came out of the river of his own and crawled for some distance. It appears from his version that he was conscious, well-oriented and was able to speak. In such a situation, the injured was expected to narrate the occurrence to his colleagues, who lifted him from the spot that respondents had deliberately fired at the Army patrol party. However, prosecution witnesses, relating to the said patrol party, who are stated to have lifted the injured and shifted him from the spot, including PWs- Jaimal Singh, Girdhari Singh, Dharm Vir Singh and Ram Paul have not stated anything in this respect that they were informed about the occurrence by him. On the contrary, PW- Ram Paul, Swaran Singh and Jagbir Singh have stated that when they spotted the injured, PW- Keshav Singh, he was unconscious. The testimonies of the aforesaid prosecution witnesses are sufficient to expose the veracity and credibility of the statement of PW-Keshav Singh, the star witness, on whose statement, the present case came to be registered against the respondents. 17. Another significant aspect of the case pertains to contradictory versions of the prosecution witnesses regarding recovery of weapon of injured PW-Keshav Singh. All the prosecution witnesses but PW- Girdhari Singh have stated that weapon of the injured was not recovered in their presence. PW-Girdhari Singh has stated that weapon of the injured was recovered by PW Ram Paul, but PW- Ram Paul has denied the same.

Another staggering circumstance to shake the credibility of the prosecution case is that though PW-Keshav Singh is stated to have sustained serious bullet injuries and was hospitalized for the same, however, prosecution has failed to produce any evidence in this respect. But for the disability certificate of PW- Keshav Singh, prosecution has not produced any evidence to prove injuries on the person of the injured and the medical opinion in this respect. Failure of the prosecution on this count is sufficient to dislodge the prosecution case. 19. Be that as it may, the staff court of enquiry, before registration of the present case by the police, had already concluded that present incident had taken place due to lack of co-ordination of patrolling communication, failure between 414 Bn BSF and 5 Rajput of Army as it is the case of mistaken identity and nobody was to be blamed. The finding of the staff court of enquiry reads as below:- “That on 17th July, 99 at about 0230 hrs. when it was raining and lightening No. 89800562 Const. Gulji Bhai, while performing duty of night sentry at Bunker PWD Ex-Malabela BOP of "D" Copy 14th BSF, spotted suspicious movement of 3 to 4 personnel approaching towards his post. Const Guiji Bhai alerted his colleagues and challenged the approaching party and finding no response from them fired from LMG held by him. Subsequently the approaching party also retaliated. As a result of cross firing between BSF, army and Pak post Pirghana Bunker which is approx. 300 yards, following personnel of 5 Rajput Bn. Sustained bullet inquiries and succumbed. a) Capt. Sanjeev Dahiya b) Hav. Jai Narayan c) NK Data Ram d) And LNK Keshav Singh was injured.”

From the conspectus of the entire case and a perusal of the record, it appears that the unfortunate incident in which three precious lives of Army personnels were taken away and one jawan got seriously injured, took place due

The aforesaid principle of law has been reiterated by Hon‟ble Supreme Court in “Padala Veera Reddy Vs. State of Andhra Pradesh and others” reported as AIR 1990 SC 79, the relevant excerpt whereof reads as under:- “19. There are series of decisions holding that no one can be convicted on the basis of mere suspicion, however, strong it may be. Though we feel it is not necessary to re-capitulate a 11 those decisions we will refer to a few on this point.” 20. This Court in Palvinder Kaur v. The State of Punjab 1953 SCR 94 has pointed out that in cases dening on circumstantial evidence courts should safeguard themselves against the danger of basing their conclusions on suspicions how so ever strong. 21. In Chandrakant Ganpat Sovitkar and Anr. v. State of Maharashtra , it has been observed : It is well settled that no one can be convicted on the basis of mere suspicion, though strong it may be. It also cannot be disputed that when we take into account the conduct of an accused, his conduct must be looked at in its entirety”. 24. Identical view has been expressed by Hon‟ble Supreme Court in “Devi Lal Vs. State of Rajasthan” reported as (2019) 19 SCC 447 in the following words:- “18. On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of “may be true” to the plane of “must be true” as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof.”

Supreme Court has also made following observation in “Sharad Birdhi Chand Sarda Vs. State of Maharashtra” reported as AIR 1984 SC 1622: “That suspicion, however great it may be, cannot take place of legal proof and that „fouler the crime higher the proof‟.”

It is evident from the afore-quoted legal position that though conviction can be sustained on the basis of sole testimony of a witness, however, conviction