Uttarakhand High Court
Narendra vs State Of Uttarakhand on 8 April, 2026
Author: Ravindra Maithani
Bench: Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 24 of 2015
Narendra .... Appellant
Vs.
State of Uttarakhand ....Respondent
Present:
Mr. Lalit Sharma, Advocate for the appellant.
Mr. B.N. Molekhi, D.A.G. for the State.
with
Criminal Appeal No. 25 of 2015
Pappu Gujjar .... Appellant
Vs.
State of Uttarakhand ....Respondent
Present:
Mr. Lalit Sharma, Advocate for the appellant.
Mr. B.M. Molekhi, D.A.G. for the State.
With
Criminal Appeal No. 43 of 2015
Praveen Balmiki .... Appellant
Vs.
State of Uttarakhand ....Respondent
Present:
Mr. Shiv Bhatt, Advocate for the appellant.
Mr. B.M. Molekhi, D.A.G. for the State.
with
Criminal Appeal No. 44 of 2015
Praveen Balmiki .... Appellant
Vs.
State of Uttarakhand ....Respondent
2
Present:
Mr. Shiv Bhatt, Advocate for the appellant.
Mr. B.M. Molekhi, D.A.G. for the State.
And
Government Appeal No. 53 of 2019
State of Uttarakhand .... Appellant
Vs.
Susheel ....Respondent
Present:
Mr. B.M. Molekhi, D.A.G. for the State/appellant.
Mr. Bharat Chaudhary, Advocate for the respondent.
JUDGMENT
Coram: Hon’ble Ravindra Maithani, J.
Hon’ble Siddhartha Sah, J.
Hon’ble Ravindra Maithani, J. (Oral)
Since, all these appeals arise from similar incident, they
are heard together and decided by this common judgment.
2. In Criminal Appeal No. 24 of 2015, filed by the appellant
Narendra, in Criminal Appeal No. 25 of 2015, filed by the appellant
Pappu Gujjar and in Criminal Appeal No. 44 of 2015, filed by the
appellant Praveen Balmiki, the challenge is made to the judgment and
order dated 18.12.2014 passed in Sessions Trial No. 335 of 2008,
State v. Praveen and others, by the court of Additional District and
Sessions Judge, Laksar, District Haridwar. By it, the appellants
Narendra, Pappu Gujjar and Praveen Balmiki have been convicted
under Sections 302 read with 34, 307 read with 34, 302 read with
120B & 504 IPC and sentenced as hereunder:-
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(i) Under Section 302 read with 34 IPC -life
imprisonment with a fine of Rs.10,000/- each. In
default of payment of fine, to undergo simple
imprisonment for a period of three months.
(ii) Under Section 307 read with 34 IPC -rigorous
imprisonment for a period of seven years with a fine
of Rs.10,000/- each. In default of payment of fine,
to undergo simple imprisonment for a period of
three months.
(iii) Under Section 302 read with 120B IPC -life
imprisonment with a fine of Rs.5,000/- each. In
default of payment of fine, to undergo simple
imprisonment for a period of two and a half months.
(iv) Under Section 504 IPC -rigorous imprisonment for a
period of two years with a fine of Rs. 1,000/- each.
In default of payment of fine, to undergo simple
imprisonment for a period of one month.
3. Criminal Appeal No. 43 of 2015 has been preferred by the
appellant Praveen Balmiki challenging the judgment and order dated
18.12.2014, passed in Sessions Trial No. 336 of 2008, State Vs.
Praveen Balmiki, by the court of Additional District and Sessions
Judge, Laksar, District Haridwar. By it, the appellant has been
convicted under Section 25 of the Arms Act, 1959 (“the Arms Act“) and
sentenced to undergo rigorous imprisonment for a period of two years
with a fine of Rs.500/- and in default of payment of fine, to undergo
simple imprisonment for a further period of 15 days.
4. State has preferred Government Appeal No. 53 of 2019,
against the judgment and order dated 29.09.2018, passed in Sessions
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Trial No. 335A of 2008, State Vs. Susheel, by the court of Additional
Sessions Judge, Laksar, District Haridwar. By it, the respondent
Susheel has been acquitted of the charge under Sections 302 read
with 34, 307 read with 34, 302 read with 120-B and 504 IPC.
5. Facts necessary to appreciate the controversy, briefly
stated, are as follows. On 08.05.2008, at 07.45 in the morning, PW1
Atul lodged an FIR at Police Station Kotwali Laksar, District Haridwar.
According to it, in the month of July, 2005, his father was killed and
in that matter, Vimla Devi, the grand-mother of PW1 Atul had lodged
a report against Gyan Singh, Punjab and Susheel. Two persons in that
matter were not known. Those names came into light subsequently.
These named persons were pressurizing PW1 Atul and his family
members so as to compromise the case. A few months before the
incident, the respondent Susheel had threatened Vimla Devi to life in
case compromise is not done. On 08.05.2008, when PW1 Atul, PW2
Ashish Kumar and their grand-mother were proceeding on a
motorcycle, they were followed by Gyan Singh and Punjab Singh of
their village, on one motor cycle and by Dilshad and Irshad (of
Mangalore) and another person in another motor cycle. They opened
fire, due to which, Vimla Devi died on the spot. PW1 Atul also
sustained injuries. They somehow managed to escape, but they were
chased by the accused, who further opened fire on them. Based on
this FIR, Case Crime No. 125 of 2008, under Sections 147, 148, 149,
307, 302, 506, 34 IPC was lodged against the named persons i.e. Gyan
Singh, Punjab Singh, Dishad, Irshad and Susheel, and investigation
proceeded in the case.
6. The prosecution case, took a sudden turn. On 09.05.2008,
when PW1 Atul was interrogated by the Investigating Officer (“IO”), he
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said that the assailants were some other persons, whom he could
identify by their faces, but he does not know their names. Again, on
18.05.2008, it is PW1 Atul, who according to the prosecution informed
the police about the presence of the appellant Praveen Balmiki and
others. The police proceeded at the spot and noticed a Pulsar
motorcycle approaching them from the opposite side. The motorcycle
rider sensing fear took a turn and in that process he fell down. The
pillion riders, who were two in number, managed to escape, but
appellant Praveen Balmiki was apprehended and from his possession,
a country-made pistol and cartridges were recovered. He revealed that
the persons who managed to escape were the appellant Narendra and
one Amit @ Sonu. At the spot only, the recovery memo Ex. A11 was
prepared.
7. According to the prosecution, the appellant Praveen
Balmiki confessed his guilt and said that at the behest of the
respondent Susheel, he alongwith the appellant Narendra and one
Amit killed Vimla Devi on 08.05.2008 and the appellant Pappu was
also part of the plot, who helped them. His confession was allegedly
recorded, which is Ex. A13. Further, at the instance of the appellant
Praveen Balmiki, on the same day, two cartridge cases were also
recovered, of which recovery memo Ex. A15 was also prepared. Based
on the confessions, according to the prosecution, the appellant Pappu
Gujjar was also apprehended and from his possession also, a country-
made pistol was recovered, of which recovery memo is Ex. A17. On
29.06.2008, as per prosecution, the appellant Narendra was also
apprehended and from his possession, a country-made pistol was
recovered of which, recovery memo Ex. A 20 was prepared and at the
instance of the appellant Narendra, two cartridge cases were also
recovered of which recovery memo Ex. A21 was further prepared. The
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IO prepared the site plan of the place of incident, which is Ex. A12.
Site plans pertaining to the recoveries of firearms, cartridges and
cartridge cases were separately proved, which are Exs. A22, A23, A24,
A25 and A26.
8. After investigation, charge sheet was submitted against all
the appellants and respondent Susheel, which was the basis of
Sessions Trial No. 335 of 2008. Separate charge sheet was submitted
under Section 25 of the Arms Act, against the appellant Praveen
Balmiki, which is the basis of Sessions Trial No. 336 of 2008. Both
these Sessions Trials were tried together, but at the stage of recording
statements under Section 313 of the Code of Criminal Procedure, 1973
(“the Code”) on 27.11.2014, the appellant Susheel remained absent.
Therefore, his trial was separated. Sessions Trial Nos. 335 of 2008 and
336 of 2008 were decided on 18.12.2014 by the court of Additional
District and Sessions Judge, Laksar, Haridwar, by which the
appellants Praveen, Narendra and Pappu Gujjar were convicted and
sentenced as stated hereinbefore. The appellant Praveen Balmiki was
also convicted and sentenced under Section 25 of the Arms Act. The
appellants have challenged it before the court.
9. In the separate trial against the respondent Susheel,
which was registered as Sessions Trial No. 335A of 2008, State v.
Susheel, in the court of Additional Sessions Judge, Laksar, District
Haridwar, judgment was delivered on 29.09.2018 and he was
acquitted of the charge under Sections 302 read with 34, 307 read
with 34, 302 read with 120B and 504 IPC. State has chosen to prefer
an appeal against the acquittal of the respondent Susheel.
7
10. In order to prove its case, the prosecution examined ten
witnesses, namely, PW1 Atul, PW2 Ashish Kumar, PW3 Arun Kumar, PW4
Om Pal, PW5 Dr. Mange Ram Malik, PW6 Dr. Anil Kumar Verma, PW7 Sub
Inspector, Rakesh Chand Bhatt, PW8 Jaipal Singh, PW9 Kaushal and
PW10 Inspector, B.S. Chauhan. In their defence, the appellants got
examined Bobby as DW 1.
11. After prosecution evidence, the appellants and respondent
Susheel were examined under Section 313 of the Code. According to
them, they have been falsely implicated. They did not commit any
offence.
12. After hearing the parties, by the impugned judgment and
order dated 18.12.2014 passed in Sessions Trial Nos. 335 and 336 of
2008, the appellants Praveen Balmiki, Pappu Gujjar and Narendra
have been convicted and sentenced, as stated hereinbefore, which is
impugned before this Court. Respondent Susheel has been acquitted
on 29.09.2018, by the impugned judgment and order passed in
Sessions Trial No. 335A of 2008 by the court of Additional District and
Sessions Judge, Laksar, Haridwar. State has challenged the acquittal.
It may be noted that prosecution evidence in Sessions Trial Nos. 335,
336 and 335A of 2008 is one and the same.
13. Heard learned counsel for the parties and perused the
record.
14. Learned counsel for the appellant Praveen Balmiki
submits that entire prosecution case is false. There are five named
persons in the FIR, who were known to PW1 Atul, the informant. They
were not proceeded with, instead the appellants have been roped in
8
the case without any basis. He submit that if PW1 Atul knew the
named persons how could his subsequent statement be held reliable
by which he has named the appellants and the respondent Susheel as
the assailants who shot his grand-mother dead on 08.05.2008 and in
the incident he was also injured. He also raised the following points in
his submissions:-
(i) There was no blood on the clothes of the deceased
or any of the witnesses which doubts the
prosecution case.
(ii) The injuries on the person of the deceased are on
her left side, whereas, according to the prosecution
case, the fire was shot from the right side of the
deceased when she was going on the motorcycle. It
is argued that it also doubts the prosecution case.
(iii) Appellant Praveen Balmiki was arrested on
10.05.2008. He was kept in the lockup. His family
members did lodge report also and then he was
falsely shown to have been arrested on 18.05.2008
with a country-made pistol, etc.
15. Learned counsel for the appellant Narendra submits that
he has been implicated merely based on confession made by the
appellant Praveen Balmiki. The recovery has been falsely shown on
him. Even he has not been charged with offence under Section 25 of
the Arms Act. He has not been convicted thereunder. Referring to the
statement of PW10 Inspector, B.S. Chauhan, learned counsel submits
that according to the IO, PW1 Atul and PW2 Ashish Kumar did not
name the appellant Narendra. It was revealed to him, by one Sansar,
but that Sansar has not been examined as a witness. No test
identification parade was done. Hence, it is argued that the
9
prosecution has not been able to prove its case beyond reasonable
doubt.
16. Learned counsel appearing for the appellant Pappu Gujjar
submits that there is no evidence against the appellant Pappu Gujjar.
A country-made pistol has been shown to have been recovered from
him on 24.05.2008, but the appellant Pappu Gujjar has not been
charged for the offence under Section 25 of the Arms Act. He submits
that there is no evidence against him.
17. Learned State counsel submits that the acquittal of the
respondent Susheel in Sessions Trial No. 335A of 2008 is bad in the
eyes of law. He submits that in the case of killing of the father of PW1
Atul, the respondent Susheel was an accused. He was in jail. He was
extending threats to the family members of PW1 Atul and PW2 Ashish
Kumar. Witnesses have stated about it. There have been call details
which have been noted by PW10 B.S. Chauhan, IO, which proves that
they wanted to eliminate Vimla Devi, the grand-mother of PW1 Atul.
He submits that the co-accused had confessed their guilt.
18. Learned counsel for the respondent Susheel submits that
there is no evidence against the respondent Susheel.
19. Before the arguments are appreciated, it would be apt to
examine as to what the witnesses have stated. PW1 Atul is the
informant. He is an alleged eyewitness of the incident. According to
him, on 08.05.2008 at 6:30 in the morning, he alongwith PW2 Ashish
Kumar, his brother and his grand-mother Late Smt. Vimla Devi were
proceeding towards court in order to give evidence in the case of killing
of his father. When they came outside the village, the appellants
Praveen Balmiki, Narendra and one Amit Goswami met them on a
motorcycle. But, this witness did not give any
10
attention to them and they proceeded further. When they reached near
Kharanja Kutubpur graveyard, the appellants Praveen Balmiki and
Narendra alongwith Amit Goswami approached them from behind,
abused them and suddenly opened fire at his grand-mother, due to
which she was hit on her stomach. All these three assailants ran away
from the spot. This witness tried to turn his motorcycle back to the
village, but it fell down. Meanwhile, the appellants Praveen Balmiki
and Narendra alongwith Amit Goswami returned and again opened
fire, which hit on the head of the deceased Vimla Devi and she died on
the spot. According to this witness, he could identify the registration
number of the motorcycle which is UP17-9155. This witness has
proved the FIR, which is Ex. A1. According to him, after the incident,
the police had reached at the spot and had sent the dead body for post
mortem. This witness did sustain injury. He was examined at the
Government Hospital.
20. PW2 Ashish Kumar has also corroborated the statement
of PW1 Atul. They both are brothers.
21. PW3 Arun Kumar and PW4 Om Pal are witnesses of
inquest.
22. PW5 Dr. Mange Ram Malik conducted post mortem of the
deceased Vimla Devi on 08.05.2008 at JNSM Government Hospital,
Roorkee. According to him, following injuries were detected on the
person of the deceased:-
“(i) Firearm wound of entry 3.0 cm x 2.0 cm x brain cavity deep on
left side head, 3.0 cm above left ear margins lacerated and
inverted abrasion color present. Underlying skull bone
fractured, no blackening or tattooing seen.
(ii) Lacerated wound 20.0 cm x 16.0 cm x brain cavity deep over
whole of right side head just above right ear, over right side
11forehead and right side face. Underlying skull bones both
peritals, right temporal occipital frontal, maxilla, right
zygomatic, right mandible are fractured and fragmented soft
tissue bulging out. Brain matter badly lacerated and most of
brain matter lost. Right eyeball lost. Clotted blood present.
Margins everted. No blackening and tattooing seen.
Communicating to injury no. 1.
(iii) Lacerated wound 1.5 cm. x 1.5 cm x chest cavity deep on left
side back, 12.0 cm below left scapula, lower angle, margins
inverted, abrasion color present, clotted blood present (wound
of entry).
(iv) Firearm wound of exit 5.0 cm. x 3.5 cm x chest cavity deep
over right side chest on anterior axillary fold. Margins everted,
on dissection track passing through lung, base of heart and
left lung, communicating to injury no. 3. Margins lacerated. No
blackening or tattooing present. Clotted blood present.
(v) Lacerated would 1.5 cm x 1.0 cm. x bone deep over left side
back, 1.0 cm medial to injury no. 3, on dissection one metallic
piece recovered from wound which is sealed and sent to SSP,
Haridwar. No blackening or tattooing seen. (Wound of Entry)
abrasion, color present. Clotted blood present.”
23. This witness has proved the post mortem report which is
Ex. A2. According to him, the cause of death was due to shock and
hemorrhage as a result of ante mortem injuries. He also tells that at
the time of post mortem, a metal piece was also detected from the
dead body which was handed over to Constables Jagdish and Satpal.
24. PW6 Dr. Anil Kumar Verma examined PW1 Atul on the
date of incident i.e. 08.05.2008 at 8:00 p.m. and found the following
injuries:-
” (i) A lacerated wound single entry wound is present on the right
elbow joint measuring 4cm x 2 cm x oval shape wound lateral
aspect situated x fresh bleeding x blackening edges x tattooing
x charring x advised x-ray right elbow joint AP & lateral x
swelling. No exit wound is present.
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(ii) Multiple abrasions are present on the right forearm x just
below the injury no.(1) measuring 16 cm x 11 cm in an area of
x tattooing x charring x fresh.”
He has proved injury report Ex. A3 as well as the
supplementary report Ex. A4.
25. PW7 Sub Inspector, Rakesh Chand Bhatt is the person
who upon information having been received reached at the spot. He
prepared the inquest report Ex. A5. He also prepared various other
documents for the purpose of forwarding the dead body for post
mortem. According to him, on 18.05.2008, the appellant Praveen
Balmiki was arrested and from his possession, a country-made pistol
and two cartridges of 3.15 bore have also been recovered. He has
proved the recovery memo Ex. A11. According to this witness, the
appellant Praveen Balmiki also got recovered two cartridge cases of
which recovery memo was also prepared. This witness has also stated
that on 24.05.2008, the appellant Pappu Gujjar was arrested and at
his instance, a country-made pistol was also recovered. PW7 Sub
Inspector, Rakesh Chand Bhatt is also the witness of recovery made at
the instance of the appellant Narendra on 29.06.2008. He has also
stated about it. He has also proved all those articles Ex. 1 to Ex. 21.
26. PW8 Jaipal Singh is the brother of the deceased Vimla
Devi. He has stated that once in the court, the appellant Susheel had
threatened him to life in case he does pairvi in the case of killing of the
father of PW1 Atul. He is also a witness of recovery of plain and blood
stained soil on 08.05.2008. This witness has stated about the recovery
memo also.
27. PW9 Kaushal has stated about the relationship between
the parties. According to her, the appellant Susheel was threatening to
13the family for compromising the case relating to the murder of the
father of PW1 Atul. She has also stated that, in fact, the appellant
Pappu Gujjar had also extended threat two or three times. She is not
an eyewitness.
28. PW10 Inspector, B.S. Chauhan is the IO. According to
him, after the incident on 09.05.2008, PW1 Atul was interrogated by
him, but he said that the persons other than named in the FIR did
commit the offence. He said that those assailants were spotted in the
village with the appellant Pappu Gujjar. According to PW10 Inspector,
B.S. Chauhan, on 18.05.2008, it is the PW1 Atul, who telephonically
informed the police and thereafter, the appellant Praveen Balmiki was
arrested and from his possession, a country-made pistol, cartridges
and cartridge case were recovered. He proved those recovery memos.
This witness has also stated about the arrest of the appellant Pappu
Gujjar and the recovery made from him. He has proved the recovery
memo of a country-made pistol from the appellant Pappu Gujjar.
According to PW10 Inspector, B.S. Chauhan, the appellant Narendra
had gone to jail in some other case. He was taken on remand and at
his instance, a country-made pistol was recovered of which recovery
memo Ex. A20 was also prepared by this witness. This witness has
also stated that, in fact, the appellant Narendra had also got recovered
two cartridge cases of which recovery memo Ex. A21 was prepared.
This witness has investigated the matter and prepared site plans with
regard to the recovery of country-made pistol, cartridges and cartridge
cases which are Ex. A22 to Ex. A26. According to him, the telephone
call records of the appellants Susheel, Pappu Gujjar and Narendra
reveal that they were talking to each other on multiple occasions prior
to the incident and on the date of incident as well. This witness has
proved the charge sheet and had also identified the handwriting of the
14
writer of the chik FIR and the extract of the General Diary entry, which
he proved as Ex. A28 and Ex. A29.
29. DW1 Bobby has stated that on 10.05.2018, the Police
from Gangnahar took the appellant Praveen Balmiki and one other
person alongwith them. Police committed atrocities with them of which
report was given to the authorities. He has proved certain documents.
30. According to the FIR, the incident took place in the
morning of 08.05.2008, when PW1 Atul and PW 2 Ashish Kumar were
proceeding on a motorcycle alongwith their grand-mother to attend the
proceedings of the court. There were five persons in two motorcycles.
According to the FIR, they opened fire, due to which, Vimla Devi died.
Those five persons are named in the FIR. They are Gyan Singh, Punjab
Singh (both belonging to same village that of PW 1 Atul), Dilshad and
Irshad (the residents of Manglore) and one more person. According to
the FIR, there were two motorcycles, in which, five persons were
riding. Four were named. It may be noted that the FIR was lodged at
07:45 a.m. on the date of incident. PW1 Atul has stated that the
incident took place at 06:30 in the morning. FIR is prompt. Those
named persons have not been charge sheeted. According to PW10
Inspector, B.S. Chauhan, the IO, on the next date of incident, PW1
Atul had disowned the FIR to the extent of the names of the assailants
and then, in a subsequent statement, according to PW10 Inspector,
B.S. Chauhan, the informant PW1 Atul had said that three persons on
a Pulsar motorcycle did commit the offence. This is a very wavering
statement. Why is it so? If it is not sufficiently explained, it is fatal to
the prosecution.
31. According to the FIR, there was acrimony between Gyan
Singh, Punjab Singh, Dilshad and Irshad on one hand and the family
15
members of PW1 Atul and PW2 Ashish Kumar on the other hand. The
reason for it is that the father of PW1 Atul and PW2 Ashish Kumar
was killed in the month of July, 2005 and in which case, these
persons were accused and with them the respondent Susheel was also
an accused. They were threatening to PW1 Atul and PW2 Ashish
Kumar and their family members to compromise the murder case.
They were extending threats, which means that PW1 Atul and PW 2
Ashish Kumar knew these four persons Gyan Singh, Punjab Singh,
Dilshad and Irshad.
32. PW1 Atul in his cross examination at page 4, has stated
that in the killing of his father, Gyan Singh, Punjab Singh, Susheel
and others were accused and all those accused would appear on the
date of hearing of the murder case of his father. He has named
Dilshad and Irshad as the persons, who were accused in the case, who
would come from jail. Does not it mean that PW1 Atul had reason to
identify the killers of his father? It is the case in the FIR that those
persons were extending threats and they did commit offence. PW1 Atul
was appearing in the court proceedings in the murder case of his
father where Gyan Singh, Punjab Singh, Dishad and Irshad were
accused. They were appearing in the court. It further means at least
by their faces, PW1 Atul knew them and they were named in the FIR.
What made PW1 Atul to change the names of the assailants? As per
the FIR, there were two motorcycles and subsequently, as per the
changed statement of PW 1 Atul, there was only one motorcycle and
three persons on it, who committed the offence.
33. In page 5 of his statement, PW1 Atul says that Praveen
Balmiki and Narendra were in the police station where this witness
was called and police had introduced their names to this witness. This
procedure is quite unknown in the criminal law. If a person was not
16
identified by the witness, perhaps to establish the identity, test
identification parades are done so as to eliminate any error in the
matter of identification, particularly, where the assailants are
unknown. Although, as stated, as per FIR, the assailants were quite
known to PW1 Atul and PW2 Ashish Kumar. They were killers of their
father. They were extending threats to compromise that murder case.
In page 7 of his statement, PW1 Atul admits that he had named
Pappu, Susheel, Dilshad and Irshad as the assailants, but it is not
correct because the names of the assailants were Gyan Singh, Punjab
Singh, Dilshad and Irshad. Pappu and Susheel are not named as
such, as the killers of Vimla Devi.
34. PW2 Ashish Kumar is not the informant. He has not
lodged the FIR. But, he named only three persons as the killer of his
grand-mother, who according to him, came on a Pulsar motorcycle.
According to him, they are the appellant Praveen Balmiki, appellant
Narendra and one Amit Goswami. According to the prosecution, PW2
Ashish Kumar was alongwith PW1 Atul and his grand-mother, when
the incident took place. Soon thereafter, FIR was lodged. Gyan Singh
and Punjab Singh are named in it and they both are his neighbours.
PW2 Ashish Kumar has admitted it in the first paragraph of his cross
examination where he says that adjoining his house, there is a house
of Bijendra, thereafter, house of Tej Pal and thereafter, house of Pappu
Gujjar and house of Punjab Singh is situated in the outer side of the
village, which is 300-400 meters away from his house. He also states
about the location of the house of the Gyan Singh. They were villagers.
Which means PW2 Ashish Kumar also knew Gyan Singh and Punjab
Singh. They were known to him. They were his neighbours. They were
named in the FIR. But subsequently, the assailants have been
replaced. It doubts the credibility of the FIR and credibility of the
17
statements of the PW1 Atul and PW2 Ashish Kumar. Their statements
are not reliable.
35. At the cost of repetition, it may be reiterated that the
reasons for not believing the testimonies of PW1 Atul and PW2 Ashish
Kumar are as follows:-
(i) According to the FIR, the assailants came in two
motorcycles, whereas, subsequently, in their
deposition in the court they say that three persons
came in one motorcycle.
(ii) In the FIR, the registration number of the
motorcycle is not given, whereas in the testimony,
the witnesses gave the details of the motorcycle
registration number also.
(iii) As per FIR, there were five assailants, four of whom,
were known to PW1 Atul and PW2 Ashish Kumar
because they were also the killers of their father in
the month of July, 2005 and of which, a case was
pending in the court.
(iv) There was no chance of error of identification of the
assailants if they were known to PW1 Atul and PW2
Ashish Kumar. Suddenly, names of three persons
have been taken. Why? It is not clear.
36. Therefore, we are of the view that the statements of PW1
Atul and PW2 Ashish Kumar cannot be a basis for conviction. Except
it, there is confession of the appellant Praveen Balmiki only. A
confession before the Police Officer may not be an admissible evidence.
According to the prosecution, recoveries of firearms were also made
from the appellants Praveen Balmiki, Pappu Gujjar and Narendra.
18
Those recovery memos have been proved alongwith articles recovered.
But, it is admitted at Bar that except the appellant Praveen Balmiki,
none of the appellants has been charged under Section 25 of the
Arms Act. The court below has recorded conviction against the
appellant Praveen Balmiki for the offence under Section 25 of the
Arms Act, but this conviction is bad in the eyes of law because the
sanction under Section 39 of the Arms Act has not been proved.
37. In view of the foregoing discussion, we are of the view that
prosecution has utterly failed to prove its case beyond reasonable
doubt, insofar as, the case against appellants Praveen Balmiki and
Narendra is concerned. Accordingly, the appellants Praveen Balmiki
and Narendra deserve to be acquitted of the charge.
38. Insofar as, the case against the appellants Pappu Gujjar
and Susheel is concerned, PW1 Atul, PW2 Ashish Kumar, PW8 Jaipal
Singh, PW9 Kaushal and PW10 Inspector, B.S. Chauhan have stated
that they have extended threats to compromise the case and
particularly stated that the appellant Susheel was extending threats.
How could it be connected with the offence under Section 120B IPC
and common intention? When was threat extended? What kind of
threat was extended? Nothing has been explained.
39. PW10 Inspector, B.S. Chauhan has stated that, in fact,
respondent Susheel, appellants Praveen Balmiki, Narendra and others
were talking with each other over telephone. From which telephone
numbers these appellants were talking to each other? To whom did
those telephone numbers belong to? Where are those call details? It
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has not been proved. Where is that electronic evidence? That has not
been proved.
40. Mere statements in such matters may not prove the facts
stated. In fact, insofar as, the case of appellants Pappu Gujjar and the
respondent Susheel are concerned, it is a no evidence case and the
appellant Pappu Gujjar and respondent Susheel are also liable to be
acquitted of the charge.
41. In view of the foregoing discussions, this Court is of the
view that Criminal Appeal No. 24 of 2015, Criminal Appeal No. 25 of
2015, Criminal Appeal No. 43 of 2015 and Criminal Appeal No. 44 of
2015 deserves to be allowed. But, Government appeal No. 53 of 2019
deserves to be dismissed.
42. Criminal Appeal No. 24 of 2015, Criminal Appeal No. 25 of
2015, Criminal Appeal No. 43 of 2015 and Criminal Appeal No. 44 of
2015 are allowed. The judgment and order dated 18.12.2014 passed in
Sessions Trial No. 335 of 2008, State v. Praveen and others, as well as
Sessions Trial No. 336 of 2008, State v. Praveen Balmiki by the court
of Additional District and Sessions Judge, Laksar, District Haridwar
are set aside. The appellants Narendra, Pappu Gujjar and Praveen
Balmiki are acquitted of the charge under Sections 302 read with 34,
307 read with 34, 302 read with 120B & 504 IPC. The appellant
Praveen Balmiki is also acquitted of the charge under Section 25 of the
Arms Act.
43. Government Appeal No. 53 of 2019, State of Uttarakhand
v. Susheel is dismissed. The judgment and order dated 29.09.2018,
passed in Sessions Trial No. 335A of 2008, State Vs. Susheel, by the
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court of Additional Sessions Judge, Laksar, District Haridwar is
affirmed.
44. Appellant Narendra and Pappu Gujjar are on bail. They
need not surrender. Their bail bonds are cancelled and the sureties
are discharged of their liability.
45. The appellant Praveen Balmiki is in jail. Let he be set free
forthwith, if not wanted in any other case.
46. The appellants Narendra, Pappu Gujjar and Praveen
Balmiki shall furnish a personal bond and two reliable sureties, to the
satisfaction of the court concerned, within a period of one month from
today, in terms of Section 437 A of the Code.
47. Let a copy of this judgment be sent to learned court below
along with the original records.
(Siddhartha Sah, J.) (Ravindra Maithani, J.)
08.04.2026
Jitendra