Acquittal necessitates clear and compelling evidence of active participation in a crime; mere association is insufficient to uphold a conviction.

JUDGMENT :

K. VINOD CHANDRAN, J.

1. Delay condoned.

2. Leave granted.

3. The learned Senior Counsel appearing for the appellant-accused and the learned Government Advocate appearing for the State were ad idem that the impugned judgment is slightly in-comprehendable; a remand would have been ideal. But, once the conviction by the Trial Court was reversed and the accused acquitted by the High Court, then a remand was made in which the impugned judgment affirming the conviction was passed, which has persuaded us to go into the merits. The offense is of the year 1999, a double murder having occurred on 14.10.1999 at about 06:00 pm and an FIR having been registered at 10:15 am on the very next day. Only one of the accused is in appeal before us, who was alleged to be the driver of the vehicle in which the assailants came and whose role in the crime proper, as we will presently see, was not fully established considering the entire circumstances.

4. We looked into the records and heard the learned Senior Counsel, Mr. Shoeb Alam appearing for the appellant and Mr. Siddhant Sharma, learned Government Advocate for the State.

5. Briefly stated, both the murders occurred on 14.10.1999, when the assailants were alleged to have come in a Tata Mobile 207 of blue colour and near the bus stand at Village Poonia, Shingara Singh son of Ujagar Singh @ Jagar Singh was shot by Sukhdev Singh @ Deba and Dhalwinder Singh @ Bhinder. The two accused, other than the appellant, were armed with .315 bore rifle. The appellant herein, Jaswinder Singh @ Shinder Singh was alleged to be the driver of the vehicle. The son having been shot dead in front of his father, it is the testimony of the father, PW-7, that he immediately boarded a bus, to inform his people and on reaching home, he found his wife and daughter-in-law crying aloud, apprising him of the murder of the other son, Balkar Singh, by the very same accused, when the deceased was coming back to his home in his scooter. The dead body of the victim was kept in the neighboring house where he was shot dead. There too the appellant was accused to have been driving the Tata Mobile, in which the other accused were travelling.

6. The prosecution went to trial producing two key witnesses PW-7 and PW-10, the father of the persons murdered and the wife of one of the brothers murdered. The recoveries were with respect to the other accused and not the appellant herein. The learned Government Advocate pointed out that the other accused are absconding and hence, the consideration may be confined to the appellant herein.

7. On going through the evidence of the key witnesses, we find that PW-7, the father though spoke of the appellant having driven the vehicle, did not speak of any overt act on the part of the appellant resulting in a direct involvement in the crime proper. The recorded testimony of PW-7 indicates that he only identified the other two accused standing in the dock, as the persons who shot his son in the first incident. The narration indicates that he also spoke of the appellant having dragged the son before he was shot by the other two. In cross-examination, he was specifically confronted with the statement under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.P.C.’) and the omission in the same of a statement of the appellant having alighted and dragged his son having been recorded by the police. The omission is fatal when we consider that the appellant was not arrayed at the first instance and was summoned under Section 319 of the Cr.P.C. by order dated 24.08.2000 of the Trial Court.

8. PW-10, the wife of the deceased who was shot dead later, projected as an eyewitness spoke only of the appellant having driven the vehicl