Manoj Misra JUDGMENT
Manoj Misra, J.
1. This appeal assails the judgment and order of the High Court of Uttarakhand at Nainital (in short, "the High Court"), dated 26.07.2012, in Government Appeal No. 4 of 2022. By the said order, though the delay in preferring the appeal against the judgment and order of acquittal dated 13.12.2011 passed by the third Additional District & Sessions Judge/Special Judge (Prevention of Corruption Act), C.B.I., Dehradun (for short "the trial court") in C. No. RC-5/87-SIU.II was condoned, the application seeking leave to appeal Under Section 378(3) of the Code of Criminal Procedure, 1973 (in short, "the Code") was rejected and in consequence the Government Appeal was dismissed.
Introductory Facts
2. In the night/late evening of 24.06.1987, one Raj Kumar Baliyan (in short, "the deceased") was killed. A first information report (FIR) was lodged by Pramod Kumar Tyagi (PW-6) alleging, inter-alia, that while he and Sudeep (PW-3), on one Scooter, and Raj Kumar Balyan (the deceased) on another Scooter, were travelling from Muzaffarnagar to Meerapur to attend a marriage, near Bhatoda turn, at about 9.30 pm, in the light of the Scooter, they saw three policemen standing on the road. One of them had a Danda (stick) whereas the other two were carrying rifles. The person who had the Danda flashed a torch light on them. As a result, they lost control of their respective scooters, which skidded and fell. One of the policemen exhorted to shoot to kill. In consequence, shots were fired hitting the deceased, who collapsed at the spot. PW-3 and PW-6, however, managed to escape to the village. On information, villagers arrived at the scene of crime and so did the police. In the presence of police the deceased was rushed to the hospital but he succumbed to his injuries on the way. Thereafter, the dead body was taken to the hospital and after leaving the body there, PW-6 lodged the FIR, which was registered as Case Crime No. 48/87 at P.S. Sikhera.
3. Another version of the incident was lodged at the instance of one Mahindra Singh on 25.06.1987, which gave rise to Case Crime No. 48A/87. There it was alleged, inter-alia, that on 26.05.1987 a robbery took place in the village wherein one person died. As criminals were regularly visiting the village since then, a constant vigil was maintained by the villagers as well as the police which had been patrolling the area. It was alleged therein that while three police constables were patrolling the village and people of the village were keeping a watch in the night of 24.06.1987, at about 9.00 pm, a man came and raised an alarm that 5-6 criminals were about to come to the village on motorcycles and scooters. On receiving this information, the villagers and the policemen became alert. At about 9.30 pm, a motorcycle came and stopped a little ahead of Bhatoda turn. Thereafter, two scooters came at a fast speed. When torch lights were flashed and the scooters were signalled to stop, the rider fired a shot with a view to kill the villagers and the policemen. However, one of the scooters skidded and the other stopped. The criminals however started running away while firing shots. As a result, there was retaliatory fire by the police and the villagers. One of the criminals was chased and nabbed by the villagers........