REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1736 OF 2007
Jalpat Rai & Ors. ...Appellants
Versus
State of Haryana ...Respondent
WITH
CRIMINAL APPEAL NO. 1306 OF 2006
JUDGEMENT
R.M. LODHA, J.
On October 2, 2002 two persons - Sunil and Chand
- were shot dead and three persons - Pawan, Rohtas and
Rakesh - got injured in the town of Jind (Haryana). One of the
injured, Pawan died after three days. In connection with that
incident, six persons--Jalpat Rai (A-1), Shyam Sunder (A-2),
Satish Kumar (A-3), Purshotam (A-4), Harinder alias Kala (A-5)
and Pawan (A-6) -- were tried by the Additional Sessions
Judge, Jind for the offences punishable under Section 148,
Section 302 read with Section 149, Section 307 read with
Section 149 and Section 323 read with Section 149 IPC. Four
of them were also charged for the offence punishable under
Section 27 of the Arms Act, 1959. The trial court vide its
judgment dated November 20, 2004 convicted A-2 under
Section 302 IPC and sentenced him to suffer life imprisonment
and imposed a fine of Rs.25000/- with default stipulation. A-2
was also convicted for the offence under Section 27 of the
Arms Act, 1959 and sentenced to undergo imprisonment for a
term of one year with a fine of Rs.1000/- with default
stipulation. The trial court acquitted A-1, A-3, A-4, A-5 and A-6
of all the charges.
2. Against the judgment of the trial court, two criminal
appeals and one criminal revision came to be filed before the
High Court of Punjab and Haryana. The State preferred appeal
being Criminal Appeal No. 95-DBA of 2006 aggrieved by the
acquittal of A-1, A-3, A-4, A-5 and A-6. The complainant party
2
filed a criminal revision being Criminal Revision No. 578 of 2005
against the acquittal of the five accused and for enhancement
of sentence. A-2 preferred criminal appeal being Criminal
Appeal No. 42-DB of 2005 against his conviction.
3. The High Court heard all the three matters together
and by a common judgment dated September 20, 2006;
allowed the appeal of the State and convicted A-1, A-3, A-4, A-
5 and A-6 under Section 148 and Section 302 read with Section
149 IPC. A-5 was also convicted under Section 323 IPC. All
these five accused have been sentenced to undergo
imprisonment for life. A fine of Rs. 10,000/- with default
stipulation was also imposed on them. Insofar as A-2 is
concerned, the High Court modified his conviction from Section
302 to Section 302 read with Section 149 IPC while maintaining
the sentence awarded to him by the trial court. In light of the
judgment in the appeal preferred by the State, the criminal
revision preferred by the complainant party was dismissed.
4. A-1, A-3, A-4, A-5 and A-6 are the appellants in the
two appeals before us filed under Section 2 of the Supreme
Court (Enlargement of Criminal Appellate Jurisdiction) Act,
3
1970 (for short, `1970 Act'). A-2 filed special leave petition
against his conviction which came to be dismissed by this Court
summarily.
5. The prosecution case in regard to the incident
leading to the triple murder is this: On October 2, 2002 at about
9.00 p.m., Sewa Singh (PW-1) and one Subhash Gaba were
sitting in their office (Nav Bharat Transport Company) situate at
Phuara Bazar, Jind. At that time, A-2, A-3 and A-4, all sons of
A-1, passed in front of their office and went towards Chamber
Dharamshala. They were armed with firearms. PW-1
suspected their movement as he had long standing truck
owners' union rivalry with A-2 and his family. PW-1 came out of
his office and saw that A-2 was talking with someone on mobile
phone. After about 10/15 minutes, A-1 came there on a
motorcycle. He, too, carried firearm with him and was
accompanied by a boy. Sensing some danger from A-1, A-2,
A-3 and A-4, PW-1 telephoned his brother Rohtas (PW-4) who
along with his nephews Chand, Sunil, Pawan, Arun and Rakesh
(PW-8) reached the office of PW-1 in about 10/15 minutes.
PW-1 told his brother (PW-4) that A-1 and his sons had
4
gathered nearby and might commit some mischief. On the
advise of PW-4, the office was closed and PW-1, PW-4, their
nephews and Subhash Gaba left for their homes. Hardly had
they started that A-2 fired one shot from behind with a licensed
pistol which he was carrying. PW-1 and his nephews ran
towards A-2 to catch him but A-2 fired another shot from his
pistol that hit Chand on the left side of his chest. A-4 fired a
shot from the pistol he was carrying which hit Sunil on the left
side of his chest. A-3 and A-1 then started firing shots from their
guns. A-2 and A-4 repeated firing from their firearms. As a
result of the shots fired by A-2 and A-4, PW-4 and Pawan
received injuries. Pawan, Chand, Sunil and PW-4 fell on the
ground. A-5 who was armed with sword gave the sword blow to
PW-8. All the accused persons then fled from the spot.
6. After the firing, few persons gathered at the place of
occurrence and took the injured persons--Chand, Sunil, Pawan
and PW-4 to the General Hospital, Jind for treatment. On way
to the hospital, Chand and Sunil succumbed to the injuries and
died. Pawan and PW-4 were referred to PGI, Rohtak for further
5
treatment. PW-1 had also informed the Control Room of the
incident.
7. At about 11.30 p.m., the doctor on duty at General
Hospital, Jind sent two rukkas (Ex. PP and Ex. PQ) to the
Police Station City, Jind informing them that Sunil and Chand
were brought dead while Pawan and PW-4 were brought
injured. On receipt of the two rukkas, Haricharan (PW-20) who
was Sub-Inspector left the Police Station for General Hospital,
Jind along with two constables. At the main gate of the General
Hospital, PW-20 met PW-1 who gave his statement which
was reduced into writing. Based on the statement of PW-1, the
first information report was registered in the midnight at 12.30
a.m. (October 3, 2002) under Sections 302/307/148/149 IPC
and the Arms Act.
8. PW-20 commenced investigation and visited the
place of occurrence. The office of Nav Bharat Transport
Company is adjacent to the Chamber Dharamshala situate in
the busy market area which has shops, offices and hospitals.
The Chamber Dharamshala has seven shops, four on the one
side and three on the other. At the place of occurrence, PW-20
6
recovered one belcha, one sword, four pair of chappals, one
Maruti car, one scooter, two Hero Honda motorcycles (one of
which was without registration number), one wrist watch and
three empties of used .32 calibre bullets. PW-20 also
conducted inquest on the dead bodies of Chand and Sunil on
October 3, 2002 before they were handed over for autopsy.
9. Dr. Kuldeep Singh Rana (PW-5), Medical Officer,
General Hospital, Jind conducted the post-mortem examination
on the dead body of Sunil on October 3, 2002 at 9.00 a.m. In
the post-mortem report, he recorded as follows :
"There is a penetrating entry wound 0.75 cm in
diameter over the left side of chest, 2.5 cm below and
slightly lateral to the left nipple. Margins are inverted,
tattooing around the wound present in about 3-4 mm.
surrounding the wound. Corresponding part of shirt
torned.
On dissection find that the bullet has followed
the path starting with anterior chest wall, traversing
the left anterior pleura, middle lob of left lung which
was lacerated, then passing through the left ventricle
of heart and coming out through the right ventricle
posteriori and bullet found stucked in the muscles
just lateral to sixth thoracic vertebrae of left side.
1.5 liter of dark clotted blood found in the
mediastinal and pleural cavity."
7
In the opinion of PW-5, the cause of death of Sunil was due to
shock and haemorrhage because of firearm injuries to vital
organs. He opined that the injuries were ante mortem and
sufficient to cause death in normal course of nature.
10. On the same day at about 9.30 a.m., PW-5
conducted post-mortem examination on the dead body of
Chand. He found the following injury on the dead body of
Chand:
"There is a penetrating wound 0.75 cm in diameter
on the left mid axillary line between 7/ 8 inter-costal
space. Margins are inverted tattooing in 3-4 mm. area
surrounding the wound.
On dissection, path traversed by the bullet is as
lateral of left chest wall to lateral left pleural cavity and
left lung which is highly lacerated, then to right
pleural cavity and right lung which was lacerated, then
bullet found stucked in muscle of right lateral wall of
chest at level of 7/8 inter-costal space or posterior
border of axillary space."
In the opinion of PW-5, the cause of death of Chand was due to
shock and haemorrhage because of firearm injury to vital
organs.
11. Pawan was medically examined by Dr. Rajesh
Gandhi (PW-6) on October 2, 2002 at about 10 p.m. as soon as
8
he was brought to the General Hospital, Jind. On the person
of Pawan, PW-6 found the following injury:
"Deep penetrating wound on anterior surface of chest;
2cm medial to left nipple and 1 cm below nipple.
Margins were inverted. Singeing is present........."
He advised X-ray and Surgeon's opinion.
12. PW-6 also examined PW-4 on October 2, 2002 at
about 10.15 p.m. and found the following injury on his person:
"Deep penetrating wound is present on the Abdomen
in the centre, 3 cm above the symphysis pubis.
Margins are inverted. Blackening is present. Size : 1 x
.5 c.m......"
13. PW-6 examined PW-8 on October 3, 2002 at about
3.40 p.m. and the following injury was found on his person.
"Lacerated wound on the right side of skull 6 cm
above ear margin, placed vertically, size : 2 x 1 x
muscle deep.......".
14. On October 5, 2002, the investigation of the case
was entrusted to Inspector Wazir Singh (PW-23). He conducted
further investigation. PW-23 sought to record the statements of
PW-4 and injured Pawan but both were not fit to give
9
statements. Pawan succumbed to injuries on October 6, 2002
and his statement could not be recorded.
15. The post-mortem examination on the dead body of
Pawan was conducted by Dr. R.K. Nandal (PW-9) on October
6, 2002. At the time of post-mortem examination, he found the
following injuries on the body of Pawan:
"1. A wound on front of Abdomen stitched with 16
stitches.
2. An oval punctured wound of size 1 x .75 cm.
Blackening present : 5 cm lateral to mid sternum
and 3 cm medio inferior to left nipple.
3. The bullet was directed downwards and inward
piercing the structure left lung diaphragm and
stomach and thereby lodged with anterior chest
wall at the level of T 11 vertebra.
4. Two stitched wounds in the stomach.
5. Two stitched wounds on left side of chest and
left iliac region for draining.
6. Haemo thorax and Haemo peritoneum
present."
In his opinion, the cause of death of Pawan was firearm injury
which had caused haemo peritoneum and haemo thorax
thereby leading to shock.
10
16. The statement of PW-4 was recorded by PW-23 on
October 8, 2002.
17. PW-23 arrested A-1 on October 14, 2002 while A-2
and A-3 were arrested on October 26, 2002. Based on the
disclosure statement of A-2, PW-23 recovered one licensed
pistol of .32 bore and one licensed rifle of .22 bore. In
pursuance of the disclosure statement of A-3, one licensed
pistol of .32 bore and one rifle of .12 bore were recovered by
PW-23.
18. The bullets recovered from the dead bodies, the
empties of bullets picked up by PW-20 from the place of
occurrence, the firearms seized pursuant to disclosure
statements and the clothes of dead persons were sent for
forensic/ballistic examination by PW-23 on November 14, 2002
to the Forensic Science Laboratory Haryana, Madhuban
(Karnal).
19. On completion of investigation, the challan was
submitted against A-1, A-2, A-3, A-4, A-5 and A-6 in the Court
of Chief Judicial Magistrate, Jind who, by his order dated
11
January 7, 2003, committed them for trial by the Court of
Sessions, Jind.
20. The Sessions Judge, Jind framed the charges
against the six accused persons (A-1, A-2, A-3, A-4, A-5 and
A-6) on April 18, 2003 as follows :
"That on 2.10.2002 at about 10 p.m., in the area of
City Jind, you all the accused were members of an
unlawful assembly, and did, in prosecution of the
common object of such assembly, and at that time
you were armed with deadly weapons and thereby
committed an offence of rioting punishable under-
Section 148 of the Indian Penal Code and within the
cognizance of this court.
That, secondly, on the aforesaid date, time and place,
you all the accused in prosecution of common object
of such unlawful assembly, did commit murder by
intentionally causing the death of Chand Singh, Sunil
Kumar and Pawan Kumar, residents of Subhash
Nagar, Jind, and thereby committed an offence
punishable under Section 302 IPC read with Section
149 IPC and within the cognizance of this court.
That, thirdly, on the aforesaid date, time and place
and in prosecution of common object of such unlawful
assembly, you all the accused caused injuries to
Rohtas with such intention or knowledge and under
such circumstances that if by that act, you had
caused the death of said Rohtas, you would have
been guilty of murder and thereby committed an
offence punishable under Section 307 IPC read with
section 149 IPC and within the cognizance of this
court.
That, fourthly, you accused Harender alias Kala, in
prosecution of common object of your co-accused,
namely, Jalpat Rai, Sham Sunder, Purshotam, Satish
12
Kumar and Pawan Kumar, caused injuries to
Subhash Gaba and Rakesh PWs and thereby you
accused Harender alias Kala committed an offence
punishable under-Section 323 IPC while the
remaining accused, namely, Jalpat Rai, Sham
Sunder, Purshotam, Satish Kumar and Pawan Kumar
committed an offence punishable under Section 323
IPC read with section 149 IPC and within the
cognizance of this court.
That, lastly, you accused Sham Sunder and
Purshotam, on 2.10.2002, in the area of City Jind,
used your respective licenced revolvers for unlawful
purpose i.e. for committing the murder of Chand
Singh, Sunil and Pawan Kumar and also for causing
injuries to Rohtas complainant with the intention to
commit his murder while you accused Jalpat Rai and
Satish, on the aforesaid date, time and place, used
your respective licenced guns for unlawful purpose
i.e. for committing the murder of Chand Singh, Sunil
and Pawan Kumar and also for causing gun shot
injuries to Rohtas complainant with the intention to
commit his murder and thereby you accused Sham
Sunder, Purshotam, Jalpat Rai and Satish Kumar
committed an offence punishable under Section 27 of
the Indian Arms Act and within the cognizance of this
court."
21. The prosecution in support of its case examined 23
witnesses in all . Three of these witnesses, PW-1, PW-4 and
PW-8 were tendered as eye-witnesses to the occurrence.
Inter-alia, Inquest Reports, Post-mortem Reports, Forensic
Science Laboratory Examination Reports, Site Plans [rough
13
plan prepared by IO and the other by draftsman) were got
exhibited.
22. The statement of the accused persons was
recorded under Section 313, Cr.P.C. The accused persons
denied their involvement in the crime and stated that they have
been falsely implicated.
23. The trial court, as indicated above, acquitted the
present appellants and convicted A-2 under Section 302 IPC
and Section 27 of Arms Act, 1959. The trial court, inter alia,
held that the ocular testimony of PW-1, PW-4 and PW-8 was
not reliable. It does not get corroborated from the medical
evidence and their version is contradictory to the report of the
ballistic expert. We intend to refer to the trial court's view about
their evidence a little later.
24. The opinion of the High Court differed with that of
the trial court. The High Court held that the evidence of PW-1,
PW-4 and PW-8 in totality was cogent, convincing and truthful.
25. Mr. Sushil Kumar, learned senior counsel
representing A-1, A-3, A-4 and A-5 vehemently assailed the
judgment of the High Court. He argued that the acquittal of the
14
appellants by the trial court was based on proper appreciation
of the entire evidence on record. The view taken by the trial
court was a reasonable and possible view on consideration of
the evidence in totality which the High Court ought not to have
disturbed. He relied upon few decisions in this regard,
particularly, Ghurey Lal v. State of Uttar Pradesh1 and Mahtab
Singh and Anr. v. State of Uttar Pradesh2.
26. Learned senior counsel, while relying upon the
decision in Mahtab Singh2, also submitted that the first
information report (FIR) was not only delayed but was also a
suspect and doubtful document. Mr. Sushil Kumar submitted
that PW-1 was not an eye-witness and pointed out various
discrepancies in the testimony of PW-1 to buttress his
argument that PW-1 was not present at the time of incident.
27. As regards the evidence of PW-4, learned senior
counsel submitted that he had not disclosed anything to the
doctor in the hospital. According to him, PW-4 did not suffer
any injury in the incident. He contended that although PW-4
deposed that he was injured by a gunshot but he did not have a
1 (2008) 10 SCC 450
2 (2009) 13 SCC 670
15
single pellet in his body; his clothes had no perforation. Learned
senior counsel submitted that his statement was recorded on
October 8, 2002 for the first time as, according to him, he was
unconscious upto that date but the medical record showed
otherwise.
28. Mr. Sushil Kumar, learned senior counsel was also
critical about the deposition of PW-8. He submitted that PW-8
was an introduced witness. His presence is not stated in the
FIR. PW-8 does not get himself medically examined at Jind on
the day of incident or at Rohtak but goes to a private doctor and
tells him that he suffered injuries because he fell accidentally.
He, thus, submitted that the evidence of PW-1, PW-4 and PW-8
was not reliable and trustworthy. In support of his submission,
he cited Balakrushna Swain v. State of Orissa3, Balak Ram v.
State of U.P.4, Vijaybhai Bhanabhai Patel v. Navnitbhai
Nathubhai Patel & Ors.5 and Darshan Singh v. State of Punjab
& Anr.6.
3 (1971) 3 SCC 192
4 (1975) 3 SCC 219
5 (2004) 10 SCC 583
6 (2010) 2 SCC 333
16
29. Learned senior counsel strenuously urged that the
circumstantial evidence on record clearly disproves the
prosecution case. No blood was found on the spot and there
was absence of blood on the clothes of the person who is said
to have carried the injured. The ballistic evidence completely
rules out complicity of the appellants. He relied upon the
decisions of this Court in the cases of Khima Vikamshi and
others v. State of Gujarat7, Balwan Singh v. State of Haryana8,
Brijpal Singh v. State of M.P.9, Ghurey Lal1, Mahendra Pratap
Singh v. State of Uttar Pradesh.10 and Darshan Singh6.
30. Learned senior counsel for the appellants also
submitted that number of deaths does not matter in
appreciation of evidence. According to him, the High Court was
unnecessarily influenced by the fact that three murders in the
same family had taken place resulting in erroneous
appreciation of the evidence. In this regard, he cited State of
7 (2003) 9 SCC 420
8 (2005) 11 SCC 245
9 (2003) 11 SCC 219
10 (2009) 11 SCC 334
17
U.P. v. Moti Ram and others11, Deepak Kumar v. Ravi Virmani
& Anr.12 and Asif Mamu v. State of Madhya Pradesh.13
31. It was also contended by Mr. Sushil Kumar that in
the event of conviction of the appellants being set aside, A-2
may also be granted same relief although his SLP has been
dismissed. He would contend that SLP filed by A-2 was non-est
since he had a right of appeal under Section 2 of the 1970 Act
and, therefore, the order of this Court dismissing his SLP is also
non-est. In support of his contention, he referred to few
decisions of this Court, namely, Harbans Singh v. State of Uttar
Pradesh and others14, A.R. Antulay v. R.S. Nayak and
another15, Raja Ram and Ors. v. State of M.P.16, Deepak
Kumar12, Akhil Ali Jehangir Ali Sayyed v. State of Maharashtra17
and Shingara Singh v. State of Haryana & another18.
32. Mr. Arun Bhardwaj, learned counsel for A-6
contended that A-6 has been falsely implicated in the incident.
He referred to the evidence of PW-1 and submitted that not a
11 (1990) 4 SCC 389
12 (2002) 2 SCC 737
13 (2008) 15 SCC 405
14 (1982) 2 SCC 101
15 (1988) 2 SCC 602
16 (1994) 2 SCC 568
17 (2003) 2 SCC 708
18 (2003) 12 SCC 758
18
word is stated by him about the involvement of A-6. He argued
that the prosecution evidence does not establish the complicity
of A-6 at all and the High Court was in error in reversing the
judgment of acquittal as regards him.
33. Ms. June Chaudhari, learned senior counsel for the
State opposed the submissions of the learned senior counsel
and the learned counsel for the appellants with equal
vehemence. She stoutly defended the judgment of the High
Court and submitted that from the entire evidence let in by
prosecution and considered by the High Court, it is apparent
that the view taken by the High Court is the only possible view
and the High Court was fully justified in reversing the judgment
of the trial court. She submitted that Section 149 IPC was
integral part of the charge and the prosecution evidence
establishes the unlawful assembly of which A-1, A-3, A-4 and
A-5 were members along with A-2 and the three murders were
committed in pursuance of its common object. She submitted
that all the members of the unlawful assembly were armed with
deadly weapons and their conviction by the High Court does
not suffer from any legal or factual infirmity.
19
34. That Chand, Sunil and Pawan died homicidal death
is neither in doubt nor in issue. The question that arises for our
consideration is whether the High Court was justified in
interfering with the order of acquittal passed in favour of the
appellants by the trial court. Obviously, if the complicity of the
appellants (A-1, A-3, A-4, A-5 and A-6) with the crime is
established beyond any reasonable doubt, the view of the High
Court would not call for any interference.
35. The two courts - High Court and the trial court --
have divergence of opinion with regard to the evidence of eye
witnesses. The trial court rejected the evidence of PW-1, PW-4
and PW-8 for the following reasons :
"It is evident from a careful perusal of the evidence
led by the prosecution that there is chequered history
of unending hostility between the complainant party
and the accused in connection with the affairs of the
Truck Union. They are all transporters by profession.
It seems that there was a brawl between accused
Shyam Sunder and some members of the
complainant party on that fateful evening. The
medical evidence reveals that there was flame effect,
blackening and tattooing at the entry wounds on all
the three bodies meaning thereby that the shots had
been fired from point-blank range. The recovery of the
articles like Belcha and Sword at the spot goes to
show that accused Shyam Sunder may have found
himself in imminent danger and he resorted to firing
from his licensed pistol thereby claiming the lives of
the three youngmen. Accused Shyam Sunder has not
20
pleaded the right of private defence of person and
property but he has pleaded false implication at the
hands of the sworn enemies of the family. The
circumstances of the case also do not warrant the
extension of such concession to him. He had not
suffered any serious injury in the incident and the
claim for use of force in defence of person and
property has to be completely excluded in this case.
P.W. Rohtas did not suffer a firearm injury in the
incident. Similarly, P.W. Rakesh had allegedly offered
himself for medico legal examination to a private
medical practitioner and he had told him that he had
suffered the injuries in an accidental fall. It is also
evident that complainant Sewa Singh may not have at
all witnessed the occurrence but he offered to lodge
the First Information Report after due deliberations
and consultations. A story was concocted with intent
to implicate all the male members of the family of
accused Jalpat Rai. A last minute efforts was made to
rope in his other two sons namely, Vinod and Sushil
by moving an application under Section 319 of the
Criminal Procedure Code which was eventually
withdrawn by the learned Public Prosecutor on
prevalence of better counsel upon him. All the three
alleged eye witnesses have rendered highly
contradictory versions and their evidence does not
receive corroboration from the medical evidence and
the ballistic expert's report. It shall be absolutely
absurd to say that multiple firearms were used in the
incident. All the three deaths were caused by the use
of .32 bore licensed pistol (Exp. 22) owned by
accused Shyam Sunder and this court has very valid
reasons to believe that he had pressed the trigger
each time. Let it be made absolutely clear here that it
is not the case of the prosecution that the licensed
firearm of accused Shyam Sunder had been taken
away from him by any other accused or that it had
been used for gunning down the three victims. It is the
case of the prosecution that accused Shyam Sunder
had triggered off the incident by firing a shot from his
pistol even as the complainant and his companions
were walking away from him. It is also the case of the
prosecution that the complainant and his companions
21
turned about and rushed to nab accused Shyam
Sunder but he fired a shot at Chand which hit him in
the left flank and killed him. The same weapon was
used for causing firearm injuries to deceased Sunil
and deceased Pawan. Therefore, there should be no
manner of doubt about the direct involvement of
accused Shyam Sunder in the commission of the
alleged crime."
36. On the other hand, the High Court was not
convinced with the reasoning of the trial court and found the
evidence of PW-1, PW-4 and PW-8 cogent, convincing and
truthful. The High Court with regard to their evidence observed
thus :
".......The learned trial Court has misread and
misinterpreted the evidence of the eye-witnesses and
the doctors as already discussed above. Occurrence
in this case had taken place on 2.10.2002 at 10 p.m.
Statement of Sewa Singh PW-1 was recorded on
3.10.2002 at 12.30 a.m. and F.I.R. Ex. PV was
recorded on 3.10.2002 at 12.50 a.m. The special
report reached the safe hands of C.J.M., Jind on
3.10.2002 at 2.30 a.m. The name of the accused, the
weapon of offence, the injuries inflicted, the name of
the witnesses are given in detail in the F.I.R. This in
fact, goes a long way in proving the case of the
prosecution. The complainant party did not get any
time to consult and confabulate with each other as to
who to falsely implicate. The F.I.R. is prompt and gets
corroboration from the other evidence on record."
37. PW-1 and PW-4 are real brothers. PW-8 and the
deceased are nephews of PW-1 and PW-4. The presence of
22
PW-1, PW-4 and PW-8 at the time of incident, does not appear
to us to be doubtful. The trial court has doubted the presence
of PW-1 at the place of occurrence but we find it difficult to
accept the reasoning of the trial court in this regard. Being
transporter, the presence of PW-1 in his office at about 9.00
p.m. was not unnatural. It was his good luck that he did not
receive any injury in the incident. We do not think that absence
of any injury on his person renders his presence doubtful. The
presence of PW-4 and PW-8 at the time of incident also cannot
be doubted. Both of them suffered injuries. Both, PW-4 and
PW-8, were medically examined by PW-6. PW-4 was
examined by PW-6 immediately after the incident at about
10.15 p.m. on October 2, 2002. PW-8 was examined by PW-6
on the next day, i.e. October 3, 2002 in the afternoon. The trial
court doubted that the injury suffered by PW-4 was from the
firearm but the evidence of Dr. Paryesh Gupta (PW-19)
leaves no manner of doubt that PW-4 received firearm injury in
the incident. PW-19 deposed that PW-4 was operated upon for
a firearm injury in the abdomen on October 3, 2002 in the
emergency O.T. and the firearm was used from a close range.
23
However, the presence of PW-1, PW-4 and PW-8 at the time of
incident does not guarantee truthfulness. The question is
whether their testimony is trustworthy and reliable insofar as
complicity of the appellants with the crime is concerned or they
have tried to involve the innocent along with the guilty.
38. Broadly, the evidence of PW-1, PW-4 and
PW-8 has been indicated by us while narrating the prosecution
case and by reason therefor, we need not reiterate the same
except the salient features emerging therefrom. PW-1 had a
long standing rivalry with A-1 in connection with Truck Owners'
Union. Their rivalry has led to many criminal cases being filed
against each other. PW-1 was prosecuted earlier for causing
injuries to A-1 and others. On September 12, 2002, i.e., about
20 days prior to the date of present incident, an FIR was
registered against PW-1 and his partner under Sections 323,
506, 148 and 454 IPC at Police Station City, Jind for causing
injuries to one Shambir. In that incident, A-2 was an eye-
witness. Two days later, on September 14, 2002, PW-1
reported to the police against A-2, A-3, A-4 and A-5 by way of
counter case but police did not take any action. A complaint
24
was then lodged by PW-1 party against A-2, A-3, A-4 and A-5
in the Court of Additional Chief Judicial Magistrate, Jind.
39. PW-1, PW-4 and PW-8 are not only much
interested in the prosecution case but they are inimically
disposed towards the accused party as well. The deep rooted
enmity and serious disputes between PW-1 on the one hand
and A-1 and his sons on the other and their unflinching interest
in the prosecution case necessitate that the evidence of PW-1,
PW-4 and PW-8 is considered with care and caution. To find
out intrinsic worth of these witnesses, it is appropriate to test
their trustworthiness and credibility in light of the collateral and
surrounding circumstances as well as the probabilities and in
conjunction with all other facts brought out on record. There
cannot be a rule of universal application that if the eye-
witnesses to the incident are interested in prosecution case
and/or are disposed inimically towards the accused persons,
there should be corroboration to their evidence. The evidence
of eye-witnesses, irrespective of their interestedness, kinship,
standing or enmity with the accused, if found credible and of
such a caliber as to be regarded as wholly reliable could be
25
sufficient and enough to bring home the guilt of the accused.
But it is reality in life, albeit unfortunate and sad, that human
failing tends to exaggerate, over-implicate and distort the true
version against the person/s with whom there is rivalry, hostility
and enmity. Cases are not unknown where entire family is
roped in due to enmity and simmering feelings although one or
only few members of that family may be involved in the crime.
In the circumstances of the present case, to obviate any
chance of false implication due to enmity of the complainant
party with the accused party and the interestedness of PW-1,
PW-4 and PW-8 in the prosecution case, it is prudent to look for
corroboration of their evidence by medical/ballistic evidence
and seek adequate assurance from the collateral and
surrounding circumstances before acting on their testimony.
The lack of corroboration from medical and ballistic evidence
and the circumstances brought out on record may ultimately
persuade that in fact their evidence cannot be safely acted
upon.
40. Besides PW-1, PW-4 and PW-8, who are closely
related to the three deceased, no other independent witness
26
has been examined although the incident occurred in a busy
market area. The place of occurrence was visited by PW-20
in the same night after the incident. He found three two-
wheelers one bearing no. HR--31--A/5071, the second
bearing no. RJ--13--M/7744 and the third without number lying
there. One Maruti car bearing no. HR--20--D/8840 with
broken glasses was also parked there. The owners of these
vehicles have not been examined. At the place of occurrence,
one HMT Quartz wrist watch with black strap, one belcha and
four pair of chappals were also found. There is no explanation
at all by the prosecution with regard to these articles. Nothing
has come on record whether four pair of chappals belonged to
the accused party or the complainant party or some other
persons. Whether HMT Quartz wrist watch that was found at
site was worn by one of the accused or one of the members of
the complainant party or somebody else is not known. Then,
the mystery remains about belcha that was found at site.
These circumstances instead of lending any corroboration to
the evidence of those three key witnesses, rather suggest that
they have not come out with the true and complete disclosure
27
of the incident.
41. If the evidence of PW-1, PW-4 and PW-8 is to be
believed then there was indiscriminate firing by the accused
party at the complainant party. PW-1 has said so in so many
words. Four members of the accused party - A-1, A-2, A-3 and
A-4 - were armed with firearms. According to these witnesses,
all of them fired shots from the firearms they were carrying.
The first shot was fired by A-2 from the pistol he was carrying
(although in the FIR it is recorded that A-2 was armed with
revolver but this inconsistency is not very material). That shot
did not hit anyone. A-2 then again fired shot that hit Chand.
A-4 fired a shot with pistol that hit Sunil. A-3 and A-1 fired
shots from their guns and A-2 and A-4 also fired shots from the
pistols causing injuries to Pawan and PW-4. However, at the
place of occurrence, only three empties were found. Had the
firing taken place in the manner deposed by PW-1, PW-4 and
PW-8, obviously there should have been more empties at the
place of occurrence. It is conjectural to assume, as has been
done by High Court, that the Investigating Officer was not able
to recover more than three empties because the occurrence
28
took place in `chowk' and by the time he reached at the site, a
lot of traffic must have passed there. Moreover, at the scene of
occurrence, there were no marks of indiscriminate firing.
42. The medical evidence is clear and specific that the
three deceased--Chand, Sunil and Pawan received one
firearm injury each. The blackening and singeing injuries leave
no manner of doubt that shots were fired at the deceased
persons from a very close range. As a matter of fact, medical
evidence is categorical to that effect. However, the ocular
account given by PW-1, PW-4 and PW-8 does not indicate that.
43. The ballistic report records unambiguously and
unequivocally that the crime bullets (BC/1 to BC/3) and the
cartridge cases (C/1 to C/3) were fired by the pistol stated to
have been recovered from A-2 and no other firearm. The
cartridge cases and the crime bullets have positively matched
to 7.65 mm pistol no. 109033-2002. This pistol is licensed
pistol of A-2 and was recovered from him in dismantled
condition with parts separated in three pieces. The Forensic
Science Laboratory marked the above pistol `W/2' for the
29
identification purposes. Based on the examination carried out
in the Laboratory, the result of analysis is recorded as under:
"7.65 mm cartridge cases and bullets marked C/1 to
C/3 and BC/1 to BC/3 respectively had been fired
from 7.65 mm pistol marked W/2 and not from any
other firearm even of the same make and calibre
because every firearm has got its own individual
characteristic marks".
The ballistic evidence is clearly in conflict with the evidence of
PW-1, PW-4 and PW-8 and shatters their evidence completely
vis-`-vis the appellants. The testimony of PW-1, PW-4 and
PW-8 about the role of appellants, thus, is not corroborated by
medical and ballistic evidence. Their evidence also does not
get support from the collateral circumstances that have come
on record.
44. The deposition of PW-1, PW-4 and PW-8 suffers
from significant improvements and omissions as well. PW-1
deposed that he did not tell the police that Satish had fired
from his .12 bore licensed gun, Jalpat had fired from .22 rifle of
Shyam Sunder and Purshotam had fired from .32 licensed
pistol of Satish but when he was confronted with portion A to A
of his statement (Ex. DA) before police, it was found that it
was so recorded. He testified that he had stated in his
30
statement to the police that A-5 had caused injuries to PW-8
but when confronted with that statement, it was found that it
was not so stated. PW-4 deposed that he had told the police
that A-4 had fired at Sunil from his revolver but when
confronted with that statement, it transpired that it was not so
stated. He also deposed that he had told the police that A-5
had given a sword blow to PW-8 on his temple but when he
was confronted with that statement, it was found that it was not
so stated. PW-8 deposed that he had stated before the police
that the shots fired by A-3 and A-1 from their guns did not hit
anyone but when confronted with that statement, it transpired
that he has not so stated.
45. As regards arrival of A-5 at the place of occurrence,
the evidence of PW-1 and PW-8 is not consistent. PW-1 has
deposed that A-5 was also present with the other accused
when the incident started; he was armed with sword and
caused injuries with the sword to PW-8. PW-8, on the other
hand, has stated that A-5 descended on the scene of
occurrence after firing had started.
31
46. We have indicated broadly some of the more
serious infirmities in the evidence of the eye-witnesses (PW-1,
PW-4 and PW-8) in order to indicate that their evidence at any
rate is not wholly true and it is unsafe to act on their evidence
insofar as complicity of A-1, A-3, A-4, A-5 and A-6 is
concerned. Brushing the impact of these infirmities aside , the
High Court erroneously treated the evidence of PW-1, PW-4
and PW-8 cogent, convincing and truthful. All in all, the
evidence of PW-1, PW-4 and PW-8 lacks in credibility and is
not of sterling worth to prove the involvement of A-1, A-3, A-4,
A-5 and A-6 in the crime beyond any reasonable doubt. As
regards A-6, as a matter of fact, it was conceded by the
learned senior counsel for the State that there was no reliable
evidence to prove his involvement in the crime. The appellants,
in our opinion, are entitled to benefit of doubt.
47. Incidentally, Vinod and Sushil (sons of A-1) were
also shown as assailants in the FIR. In the investigation, their
presence was not established; they were not charge-sheeted.
PW-1, PW-4 and PW-8, however, in their deposition before the
Court made an attempt to implicate them. Based on their
32
deposition, the public prosecutor made an application under
Section 319 of Cr.P.C. for summoning those two sons of A-1
but that application was eventually withdrawn. This by itself
has not much bearing in the case. What it shows is that there
has been attempt by PW-1, PW-4 and PW-8 right from the
inception to rope in A-1 and all his sons in the incident
irrespective of whether all of them were involved in the crime or
not.
48. We are not oblivious of the fact that A-2 was
convicted by the trial court for the offence under Section 302
IPC but the High Court has altered his conviction from Section
302 to Section 302 IPC read with Section 149 IPC and his
special leave petition (SLP) against that judgment has been
dismissed summarily. The dismissal of SLP summarily does
not mean affirmance of the judgment of the High Court on
merits. It has been repeatedly held by this Court that mere
dismissal of SLP does not amount to acceptance of correctness
of the High Court decision. The order of this Court in A-2's SLP
is not an impediment in allowing these two appeals once it is
33
held that prosecution has failed to prove the complicity of the
appellants beyond any reasonable doubt.
49. We are not impressed by the argument of
Mr. Sushil Kumar, learned senior counsel, that the SLP
preferred by A-2 was non-est since he had a right of appeal
under Section 2 of the 1970 Act and, therefore, the order of
this Court dismissing the SLP preferred by A-2 is also a non-
est. The judgments cited by learned Senior Counsel in
support of his submission that in the event of appellants'
conviction being set aside, A-2 is also entitled to the same relief
although his SLP has been dismissed have no application to
the facts of the present case. The case against A-2 stands on
a different footing. The ballistic evidence is conclusive against
him and leaves no manner of doubt about his involvement in
the crime. We need not say any further in this regard as SLP
preferred by A-2 against his conviction has already been
dismissed.
50. In view of the above discussion, these two appeals
are allowed and the judgment of the High Court as regards the
present appellants is set aside. The judgment of acquittal
34
passed in their favour by the trial court is restored. The
appellants Jalpat Rai and Pawan are already on bail and
accordingly their bail bonds are discharged. The other
appellants, Satish Kumar, Purshotam and Harinder alias Kala
be released forthwith, if not required in any other case.
. .....................J.
(Aftab Alam)
........................ J.
(R.M. Lodha)
NEW DELHI,
JULY 6, 2011.
35
advocatemmmohan
- advocatemmmohan
- since 1985 practicing as advocate in both civil & criminal laws
