{"id":224412,"date":"2011-07-06T00:00:00","date_gmt":"2011-07-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jalpat-rai-ors-vs-state-of-haryana-on-6-july-2011"},"modified":"2017-11-24T21:54:22","modified_gmt":"2017-11-24T16:24:22","slug":"jalpat-rai-ors-vs-state-of-haryana-on-6-july-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jalpat-rai-ors-vs-state-of-haryana-on-6-july-2011","title":{"rendered":"Jalpat Rai & Ors vs State Of Haryana on 6 July, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Jalpat Rai & Ors vs State Of Haryana on 6 July, 2011<\/div>\n
Author: R Lodha<\/div>\n
Bench: Aftab Alam, R.M. Lodha<\/div>\n
                                                                  REPORTABLE \n\n\n\n\n              IN THE SUPREME COURT OF INDIA\n\n\n             CRIMINAL APPELLATE JURISDICTION\n\n\n             CRIMINAL APPEAL  NO. 1736 OF 2007\n\n\nJalpat Rai & Ors.                                              ...Appellants\n\n\n                           Versus\n\n \n\nState of Haryana                                             ...Respondent\n\n\n                                 WITH\n\n\n             CRIMINAL APPEAL  NO. 1306 OF 2006\n\n\n\n\n\n                            JUDGEMENT \n<\/pre>\n
R.M. LODHA, J.\n<\/p>\n<\/p>\n
             On October 2, 2002 two persons – Sunil and Chand <\/p>\n
–   were   shot   dead   and   three   persons   –   Pawan,   Rohtas   and <\/p>\n
Rakesh –  got injured in the town of Jind (Haryana).  One of the <\/p>\n
injured,   Pawan died after three days.   In connection with that <\/p>\n
incident,   six  persons–Jalpat Rai (A-1), Shyam Sunder (A-2), <\/p>\n
Satish Kumar (A-3), Purshotam (A-4), Harinder alias Kala (A-5) <\/p>\n
and   Pawan   (A-6)   —   were   tried   by   the   Additional   Sessions <\/p>\n
Judge,   Jind   for   the   offences   punishable   under   Section   148, <\/p>\n
Section   302   read   with   Section   149,   Section   307   read   with <\/p>\n
Section 149 and Section 323 read with Section 149 IPC. Four <\/p>\n
of   them   were   also   charged   for   the   offence   punishable   under <\/p>\n
Section   27   of   the     Arms   Act,   1959.   The   trial   court   vide   its <\/p>\n
judgment   dated   November   20,   2004   convicted     A-2   under <\/p>\n
Section 302 IPC and sentenced him to suffer life imprisonment <\/p>\n
and imposed a fine of Rs.25000\/- with default stipulation.   A-2 <\/p>\n
was   also   convicted   for   the     offence   under   Section   27   of   the <\/p>\n
Arms Act, 1959   and sentenced to undergo imprisonment for a <\/p>\n
term     of   one   year   with   a   fine   of   Rs.1000\/-   with   default <\/p>\n
stipulation. The trial court acquitted  A-1, A-3, A-4, A-5 and A-6 <\/p>\n
of all the charges.\n<\/p>\n<\/p>\n
2.            Against the judgment of the trial court, two criminal <\/p>\n
appeals  and  one  criminal  revision  came  to  be  filed before the <\/p>\n
High Court of Punjab and Haryana. The State preferred appeal <\/p>\n
being   Criminal   Appeal   No.   95-DBA   of   2006   aggrieved   by   the <\/p>\n
acquittal of A-1, A-3, A-4, A-5 and A-6.   The complainant party <\/p>\n
                                                                            2<\/span><\/p>\n
filed a criminal revision being Criminal Revision No. 578 of 2005 <\/p>\n
against the acquittal of the five accused and for enhancement <\/p>\n
of   sentence.     A-2   preferred   criminal   appeal   being   Criminal <\/p>\n
Appeal No. 42-DB of 2005 against his conviction.  <\/p>\n
3.            The High Court heard all the three matters together <\/p>\n
and   by   a   common   judgment   dated   September   20,   2006; <\/p>\n
allowed the appeal of the State and convicted A-1, A-3, A-4, A-<\/p>\n
5 and A-6 under Section 148 and Section 302 read with Section <\/p>\n
149 IPC.   A-5 was also convicted under Section 323 IPC.   All <\/p>\n
these   five   accused   have   been   sentenced   to   undergo <\/p>\n
imprisonment   for   life.   A   fine   of   Rs.   10,000\/-   with   default <\/p>\n
stipulation   was   also   imposed   on   them.   Insofar   as   A-2   is <\/p>\n
concerned, the High Court modified his conviction from Section <\/p>\n
302 to Section 302 read with Section 149 IPC while maintaining <\/p>\n
the sentence awarded to him by the trial court.   In light of the <\/p>\n
judgment   in   the   appeal   preferred   by   the   State,   the   criminal <\/p>\n
revision preferred by the complainant party was dismissed. <\/p>\n
4.            A-1, A-3, A-4, A-5 and A-6  are the appellants in the <\/p>\n
two   appeals   before   us   filed   under   Section   2   of   the   Supreme <\/p>\n
Court     (Enlargement   of   Criminal   Appellate   Jurisdiction)   Act, <\/p>\n
                                                                        3<\/span><\/p>\n
1970   (for   short,   `1970   Act’).   A-2   filed   special   leave   petition <\/p>\n
against his conviction which came to be dismissed by this Court <\/p>\n
summarily.\n<\/p>\n<\/p>\n
5.            The   prosecution   case   in   regard   to   the   incident <\/p>\n
leading to the triple murder is this:  On October 2, 2002 at about <\/p>\n
9.00 p.m.,   Sewa Singh (PW-1) and one Subhash Gaba were <\/p>\n
sitting in their office (Nav Bharat Transport Company) situate at <\/p>\n
Phuara Bazar, Jind.  At that time, A-2, A-3 and A-4, all sons of <\/p>\n
A-1, passed in front of their office and went towards Chamber <\/p>\n
Dharamshala.     They   were   armed   with   firearms.   PW-1 <\/p>\n
suspected   their   movement   as   he   had   long   standing   truck <\/p>\n
owners’ union rivalry with A-2 and his family.  PW-1 came out of <\/p>\n
his office and saw that A-2 was talking with someone on mobile <\/p>\n
phone.   After   about   10\/15   minutes,   A-1   came   there   on   a <\/p>\n
motorcycle.     He,     too,   carried   firearm   with   him   and   was <\/p>\n
accompanied by a boy.    Sensing some danger from A-1, A-2, <\/p>\n
A-3 and A-4, PW-1 telephoned his brother Rohtas (PW-4) who <\/p>\n
along with his nephews Chand, Sunil, Pawan, Arun and Rakesh <\/p>\n
(PW-8)   reached   the   office   of     PW-1   in   about   10\/15   minutes. <\/p>\n
PW-1   told   his   brother   (PW-4)   that   A-1   and   his   sons   had <\/p>\n
                                                                          4<\/span><\/p>\n
gathered   nearby   and   might   commit   some   mischief.   On   the <\/p>\n
advise of  PW-4, the office was closed and   PW-1, PW-4,  their <\/p>\n
nephews   and Subhash Gaba left for their homes. Hardly had <\/p>\n
they started that  A-2 fired one shot from behind with a licensed <\/p>\n
pistol   which   he   was   carrying.   PW-1   and   his   nephews   ran <\/p>\n
towards   A-2   to   catch   him   but   A-2   fired   another   shot   from   his <\/p>\n
pistol   that   hit   Chand   on   the   left   side   of   his   chest.   A-4   fired   a <\/p>\n
shot from the pistol he was carrying which hit Sunil on the left <\/p>\n
side of his chest. A-3 and A-1 then started firing shots from their <\/p>\n
guns.   A-2   and   A-4   repeated   firing   from   their   firearms.   As   a <\/p>\n
result   of   the   shots   fired   by   A-2   and   A-4,   PW-4   and   Pawan <\/p>\n
received   injuries.   Pawan,   Chand,   Sunil   and   PW-4   fell   on   the <\/p>\n
ground. A-5 who was armed with sword gave the sword blow to <\/p>\n
PW-8. All the accused persons then fled from the spot.<\/p>\n
6.              After the firing, few persons gathered at the place of <\/p>\n
occurrence and took the injured persons–Chand, Sunil, Pawan <\/p>\n
and PW-4 to the General Hospital, Jind for treatment. On way <\/p>\n
to the hospital, Chand and Sunil succumbed to the injuries and <\/p>\n
died. Pawan and PW-4 were referred to PGI, Rohtak for further <\/p>\n
                                                                                   5<\/span><\/p>\n
treatment.     PW-1   had   also   informed   the   Control   Room   of   the <\/p>\n
incident.\n<\/p>\n<\/p>\n
7.            At about 11.30 p.m., the doctor on duty at  General <\/p>\n
Hospital,   Jind   sent   two   rukkas   (Ex.   PP   and   Ex.   PQ)   to   the <\/p>\n
Police   Station  City,  Jind   informing   them  that   Sunil   and   Chand <\/p>\n
were   brought   dead     while   Pawan   and   PW-4   were   brought <\/p>\n
injured.  On receipt of the two rukkas, Haricharan (PW-20) who <\/p>\n
was Sub-Inspector left the Police Station for General Hospital, <\/p>\n
Jind along with two constables. At the main gate of the General <\/p>\n
Hospital,   PW-20   met     PW-1     who     gave   his   statement   which <\/p>\n
was reduced into writing.  Based on the statement of PW-1,  the <\/p>\n
first information report was  registered in the midnight at 12.30 <\/p>\n
a.m.   (October   3,   2002)     under   Sections   302\/307\/148\/149   IPC <\/p>\n
and the Arms Act.\n<\/p>\n<\/p>\n
8.            PW-20   commenced   investigation   and   visited   the <\/p>\n
place   of   occurrence.     The   office   of   Nav   Bharat   Transport <\/p>\n
Company   is   adjacent   to   the   Chamber   Dharamshala   situate   in <\/p>\n
the   busy   market   area   which   has   shops,   offices   and   hospitals. <\/p>\n
The Chamber Dharamshala has seven shops, four on the one <\/p>\n
side and three on the other.  At the place of occurrence, PW-20 <\/p>\n
                                                                         6<\/span><\/p>\n
recovered   one   belcha,   one   sword,   four   pair   of   chappals,   one <\/p>\n
Maruti   car,   one  scooter,   two  Hero   Honda  motorcycles  (one   of <\/p>\n
which   was   without   registration   number),   one   wrist   watch   and <\/p>\n
three   empties   of   used   .32   calibre   bullets.   PW-20   also <\/p>\n
conducted inquest on the dead bodies of Chand and Sunil on <\/p>\n
October 3, 2002 before they were handed over for autopsy.<\/p>\n
9.             Dr.   Kuldeep   Singh   Rana   (PW-5),   Medical   Officer, <\/p>\n
General Hospital, Jind  conducted the post-mortem examination <\/p>\n
on the dead body of Sunil on October 3, 2002 at   9.00 a.m. In <\/p>\n
the post-mortem report, he recorded as follows :<\/p>\n
        “There   is   a   penetrating   entry   wound   0.75   cm   in <\/p>\n
        diameter over the left side of chest, 2.5 cm below and <\/p>\n
        slightly lateral to the left nipple. Margins are inverted, <\/p>\n
        tattooing around the wound present in about 3-4 mm. <\/p>\n
        surrounding the wound.   Corresponding part of   shirt <\/p>\n
        torned.\n<\/p><\/blockquote>\n
<\/blockquote>\n
               On   dissection   find   that   the   bullet   has   followed <\/p>\n
        the   path   starting   with   anterior   chest   wall,   traversing <\/p>\n
        the   left   anterior   pleura,   middle   lob   of   left   lung   which <\/p>\n
        was lacerated, then passing through the left ventricle <\/p>\n
        of   heart     and   coming   out   through   the   right   ventricle <\/p>\n
        posteriori   and   bullet     found   stucked   in   the   muscles <\/p>\n
        just lateral to sixth thoracic vertebrae of left side. <\/p>\n<\/blockquote>\n
               1.5   liter   of   dark   clotted   blood   found   in   the <\/p>\n
        mediastinal and pleural cavity.”\n<\/p><\/blockquote>\n
\n
                                                                                      7<\/span><\/p>\n<\/blockquote>\n
In the  opinion of PW-5,  the cause of death of Sunil  was due to <\/p>\n
shock   and   haemorrhage   because   of   firearm   injuries   to   vital <\/p>\n
organs.     He   opined   that   the   injuries   were   ante   mortem   and <\/p>\n
sufficient to cause death in normal course of nature.<\/p>\n
10.           On   the   same   day   at   about   9.30   a.m.,   PW-5 <\/p>\n
conducted   post-mortem   examination   on   the   dead   body   of <\/p>\n
Chand.   He   found   the   following   injury   on   the   dead   body   of <\/p>\n
Chand:\n<\/p>\n<\/p>\n
        “There   is     a   penetrating   wound   0.75   cm  in   diameter <\/p>\n
        on   the   left  mid   axillary   line  between   7\/   8  inter-costal <\/p>\n
        space. Margins are inverted tattooing in 3-4 mm. area <\/p>\n
        surrounding the wound.\n<\/p><\/blockquote>\n
<\/blockquote>\n
              On dissection, path traversed by the bullet is as <\/p>\n
        lateral of left chest wall to lateral left pleural cavity and <\/p>\n
        left   lung   which   is     highly   lacerated,   then   to   right <\/p>\n
        pleural cavity and right lung which was lacerated, then <\/p>\n
        bullet  found stucked in  muscle of right lateral wall of <\/p>\n
        chest   at   level   of   7\/8   inter-costal   space   or   posterior <\/p>\n
        border of  axillary space.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
In the opinion of PW-5, the cause of death of Chand was due to <\/p>\n
shock   and   haemorrhage   because   of   firearm   injury   to   vital <\/p>\n
organs.\n<\/p>\n<\/p>\n
11.           Pawan   was   medically   examined   by   Dr.   Rajesh <\/p>\n
Gandhi (PW-6) on October 2, 2002 at about 10 p.m. as soon as <\/p>\n
                                                                                   8<\/span><\/p>\n
he was brought to the General Hospital, Jind.     On the person <\/p>\n
of Pawan, PW-6 found the following injury: <\/p>\n
        “Deep penetrating wound on anterior surface of chest; <\/p>\n
        2cm   medial   to   left   nipple   and   1   cm   below   nipple. <\/p>\n
        Margins were inverted. Singeing is present………” <\/p>\n<\/blockquote>\n
He advised X-ray and Surgeon’s opinion.\n<\/p>\n<\/p>\n
12.           PW-6 also examined PW-4   on October 2, 2002 at <\/p>\n
about 10.15 p.m. and found the following injury on his person:<\/p>\n
        “Deep penetrating wound is present on the Abdomen <\/p>\n
        in   the   centre,   3   cm   above   the   symphysis   pubis. <\/p>\n
        Margins are inverted. Blackening is present. Size : 1 x <\/p>\n
        .5 c.m……”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
13.           PW-6 examined PW-8 on October 3, 2002 at about <\/p>\n
3.40 p.m. and the following injury was found on his person.<\/p>\n
        “Lacerated   wound   on   the   right   side   of   skull   6   cm <\/p>\n
        above   ear   margin,   placed   vertically,   size   :   2   x   1   x <\/p>\n
        muscle deep…….”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
14.           On   October   5,   2002,   the   investigation   of   the   case <\/p>\n
was entrusted to Inspector Wazir Singh (PW-23). He conducted <\/p>\n
further investigation. PW-23 sought to  record the statements of <\/p>\n
PW-4   and   injured   Pawan   but   both   were   not   fit   to   give <\/p>\n
                                                                                    9<\/span><\/p>\n
statements. Pawan succumbed to injuries on October 6, 2002 <\/p>\n
and his statement could not be recorded.\n<\/p>\n<\/p>\n
15.             The post-mortem examination on the dead body of <\/p>\n
Pawan was conducted by Dr. R.K. Nandal (PW-9) on October <\/p>\n
6, 2002.  At the time of post-mortem examination,  he found the <\/p>\n
following injuries on the body of Pawan:\n<\/p>\n<\/p>\n
       “1.        A wound on front of Abdomen stitched with 16 <\/p>\n
                stitches.\n<\/p><\/blockquote>\n
<\/blockquote>\n
       2.       An   oval   punctured   wound   of   size   1   x   .75   cm. <\/p>\n<\/blockquote>\n
                Blackening  present : 5 cm lateral to mid sternum <\/p>\n
                and 3 cm medio inferior to left nipple.<\/p>\n<\/blockquote>\n
       3.       The   bullet   was   directed   downwards   and   inward <\/p>\n
                piercing   the   structure   left   lung   diaphragm   and <\/p>\n
                stomach and thereby lodged with anterior chest <\/p>\n
                wall at the level of T 11 vertebra.\n<\/p><\/blockquote>\n
<\/blockquote>\n
       4.         Two stitched wounds in the stomach.<\/p>\n<\/blockquote>\n
       5.       Two   stitched   wounds   on   left   side   of   chest   and <\/p>\n
                left iliac region for draining.\n<\/p><\/blockquote>\n
<\/blockquote>\n
       6.     Haemo    thorax     and     Haemo     peritoneum \n\n              present.\" \n\n\n\n\n<\/pre>\n
In his opinion, the cause of death of Pawan was firearm injury <\/p>\n
which   had   caused   haemo   peritoneum   and   haemo   thorax <\/p>\n
thereby leading to shock.\n<\/p><\/blockquote>\n
\n
                                                                                  10<\/span><\/p>\n<\/blockquote>\n
16.           The statement of PW-4 was recorded by PW-23 on <\/p>\n
October 8, 2002.\n<\/p>\n<\/p>\n
17.           PW-23 arrested A-1 on October 14, 2002 while A-2 <\/p>\n
and   A-3   were   arrested   on   October   26,   2002.   Based   on   the <\/p>\n
disclosure   statement   of   A-2,   PW-23   recovered   one   licensed <\/p>\n
pistol   of   .32   bore   and   one   licensed   rifle     of   .22   bore.   In <\/p>\n
pursuance   of   the   disclosure   statement   of   A-3,     one   licensed <\/p>\n
pistol of .32 bore and one rifle of .12 bore were recovered by <\/p>\n
PW-23.\n<\/p>\n<\/p>\n
18.           The   bullets   recovered   from   the   dead   bodies,   the <\/p>\n
empties   of   bullets   picked   up   by   PW-20   from   the   place     of <\/p>\n
occurrence,   the   firearms   seized   pursuant   to   disclosure <\/p>\n
statements   and   the   clothes   of   dead   persons   were   sent   for <\/p>\n
forensic\/ballistic examination by PW-23 on November 14, 2002 <\/p>\n
to   the   Forensic   Science   Laboratory   Haryana,     Madhuban <\/p>\n
(Karnal).\n<\/p>\n<\/p>\n
19.           On   completion   of   investigation,   the   challan   was <\/p>\n
submitted against  A-1, A-2, A-3, A-4, A-5 and A-6 in the Court <\/p>\n
of   Chief   Judicial   Magistrate,   Jind   who,   by   his   order   dated <\/p>\n
                                                                           11<\/span><\/p>\n
January   7,   2003,   committed   them     for   trial   by   the   Court   of <\/p>\n
Sessions, Jind.\n<\/p>\n<\/p>\n
20.           The   Sessions   Judge,   Jind   framed   the   charges <\/p>\n
against   the   six   accused   persons   (A-1,   A-2,   A-3,   A-4,   A-5   and <\/p>\n
A-6) on April 18, 2003 as follows :\n<\/p>\n<\/p>\n
        “That   on   2.10.2002   at   about   10   p.m.,   in   the   area   of <\/p>\n
        City   Jind,   you   all   the   accused   were   members   of   an <\/p>\n
        unlawful   assembly,   and   did,   in   prosecution   of   the <\/p>\n
        common   object   of   such   assembly,   and   at   that   time <\/p>\n
        you   were   armed   with   deadly   weapons   and   thereby <\/p>\n
        committed   an   offence   of   rioting   punishable   under- <\/p>\n
        Section 148 of the Indian Penal Code and within the <\/p>\n
        cognizance of this court.\n<\/p><\/blockquote>\n
\n        That, secondly, on the aforesaid date, time and place, <\/p>\n
        you all the accused in prosecution of common object <\/p>\n
        of   such   unlawful   assembly,   did   commit   murder   by <\/p>\n
        intentionally causing the death of Chand Singh, Sunil <\/p>\n
        Kumar   and   Pawan   Kumar,   residents   of   Subhash <\/p>\n
        Nagar,   Jind,   and   thereby   committed   an   offence <\/p>\n
        punishable under Section 302 IPC read with  Section <\/p>\n
        149 IPC and within the cognizance of this court.<\/p>\n
        That,   thirdly,   on   the   aforesaid   date,   time   and   place <\/p>\n
        and in prosecution of common object of such unlawful <\/p>\n
        assembly,   you   all   the   accused   caused   injuries   to <\/p>\n
        Rohtas   with   such   intention   or   knowledge   and   under <\/p>\n
        such   circumstances   that   if   by   that   act,   you   had <\/p>\n
        caused   the   death   of   said   Rohtas,   you   would   have <\/p>\n
        been   guilty   of   murder   and   thereby   committed   an <\/p>\n
        offence punishable  under Section 307 IPC  read with <\/p>\n
        section   149   IPC   and   within   the   cognizance   of   this <\/p>\n
        court.\n<\/p><\/blockquote>\n
\n        That,   fourthly,   you   accused   Harender   alias   Kala,   in <\/p>\n
        prosecution   of   common   object   of   your   co-accused, <\/p>\n
        namely, Jalpat Rai, Sham Sunder, Purshotam, Satish <\/p>\n
                                                                                    12<\/span><\/p>\n
        Kumar   and   Pawan   Kumar,   caused   injuries   to <\/p>\n
        Subhash   Gaba   and   Rakesh   PWs   and   thereby   you <\/p>\n
        accused   Harender   alias   Kala   committed   an   offence <\/p>\n
        punishable   under-Section   323   IPC   while   the <\/p>\n
        remaining   accused,   namely,   Jalpat   Rai,   Sham <\/p>\n
        Sunder, Purshotam, Satish Kumar and Pawan Kumar <\/p>\n
        committed   an   offence   punishable   under   Section   323 <\/p>\n
        IPC   read   with   section   149   IPC   and   within   the <\/p>\n
        cognizance of this court.\n<\/p><\/blockquote>\n
\n        That,   lastly,   you   accused   Sham   Sunder   and <\/p>\n
        Purshotam,   on   2.10.2002,   in   the   area   of   City   Jind, <\/p>\n
        used   your   respective   licenced   revolvers   for   unlawful <\/p>\n
        purpose   i.e.   for   committing   the   murder   of   Chand <\/p>\n
        Singh, Sunil and Pawan  Kumar and also for causing <\/p>\n
        injuries   to   Rohtas   complainant   with   the   intention   to <\/p>\n
        commit his murder while you accused Jalpat Rai and <\/p>\n
        Satish,   on   the   aforesaid   date,   time   and   place,   used <\/p>\n
        your   respective   licenced   guns   for   unlawful   purpose <\/p>\n
        i.e. for committing the murder of Chand Singh,  Sunil <\/p>\n
        and   Pawan   Kumar   and   also   for   causing   gun   shot <\/p>\n
        injuries   to   Rohtas   complainant   with   the   intention   to <\/p>\n
        commit   his   murder   and   thereby   you   accused   Sham <\/p>\n
        Sunder,   Purshotam,   Jalpat   Rai   and   Satish   Kumar <\/p>\n
        committed an offence punishable under Section 27 of <\/p>\n
        the Indian Arms Act and within the cognizance of this <\/p>\n
        court.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
21.           The prosecution in support of its case examined 23 <\/p>\n
witnesses   in   all   .   Three   of   these   witnesses,   PW-1,   PW-4   and <\/p>\n
PW-8   were   tendered   as   eye-witnesses   to   the   occurrence. <\/p>\n
Inter-alia,     Inquest   Reports,   Post-mortem   Reports,   Forensic <\/p>\n
Science   Laboratory   Examination   Reports,   Site   Plans   [rough <\/p>\n
                                                                                13<\/span><\/p>\n
plan   prepared   by   IO   and   the   other   by   draftsman)     were   got <\/p>\n
exhibited.\n<\/p>\n<\/p>\n
22.            The   statement   of   the   accused   persons   was <\/p>\n
recorded   under   Section   313,   Cr.P.C.   The   accused   persons <\/p>\n
denied their involvement in the crime and stated that they have <\/p>\n
been falsely implicated.\n<\/p>\n<\/p>\n
23.            The   trial   court,   as   indicated   above,   acquitted   the <\/p>\n
present   appellants   and   convicted   A-2   under   Section   302   IPC <\/p>\n
and   Section   27   of   Arms   Act,   1959.   The   trial   court,   inter   alia, <\/p>\n
held   that   the   ocular   testimony   of   PW-1,   PW-4   and   PW-8   was <\/p>\n
not   reliable.   It   does   not   get   corroborated   from   the   medical <\/p>\n
evidence and their version is contradictory to the report of the <\/p>\n
ballistic expert. We intend to refer to the trial court’s view about <\/p>\n
their evidence a little later.\n<\/p>\n<\/p>\n
24.            The   opinion   of   the   High   Court   differed   with   that   of <\/p>\n
the trial court. The High Court held that the evidence of PW-1, <\/p>\n
PW-4 and PW-8 in totality was cogent, convincing and truthful. <\/p>\n
25.            Mr.   Sushil   Kumar,   learned   senior   counsel <\/p>\n
representing   A-1,   A-3,   A-4   and   A-5   vehemently   assailed   the <\/p>\n
judgment of the High Court. He argued that the acquittal of the <\/p>\n
                                                                              14<\/span><\/p>\n
appellants by the trial court was based on proper appreciation <\/p>\n
of   the   entire   evidence   on   record.   The   view   taken   by   the   trial <\/p>\n
court was a reasonable and possible view on consideration of <\/p>\n
the evidence in totality which the High Court ought not to have <\/p>\n
disturbed.   He   relied   upon     few     decisions     in   this   regard, <\/p>\n
particularly, Ghurey Lal v. State of Uttar Pradesh1 and   Mahtab  <\/p>\n
Singh and Anr. v. State of Uttar Pradesh2.\n<\/p>\n<\/p>\n
26.             Learned   senior   counsel,   while   relying   upon   the <\/p>\n
decision   in  Mahtab   Singh2,   also   submitted   that   the   first <\/p>\n
information   report   (FIR)   was   not   only   delayed   but   was   also   a <\/p>\n
suspect   and   doubtful   document.   Mr.   Sushil   Kumar   submitted <\/p>\n
that   PW-1   was   not   an   eye-witness   and     pointed   out   various <\/p>\n
discrepancies   in   the   testimony   of   PW-1   to   buttress   his <\/p>\n
argument that PW-1 was not present at the time of incident. <\/p>\n
27.             As   regards   the   evidence   of   PW-4,   learned   senior <\/p>\n
counsel   submitted   that   he   had   not   disclosed   anything   to   the <\/p>\n
doctor   in   the   hospital.     According   to   him,   PW-4   did   not   suffer <\/p>\n
any   injury   in   the   incident.   He   contended   that   although   PW-4 <\/p>\n
deposed that he was injured by a gunshot but he did not have a <\/p>\n
1 (2008) 10 SCC 450<\/p>\n
2 (2009) 13 SCC 670<\/p>\n
                                                                             15<\/span><\/p>\n
single pellet in his body; his clothes had no perforation. Learned <\/p>\n
senior   counsel   submitted   that   his   statement   was   recorded   on <\/p>\n
October 8, 2002 for the first time as, according to him, he was <\/p>\n
unconscious   upto   that   date   but   the   medical   record   showed <\/p>\n
otherwise.\n<\/p>\n<\/p>\n
28.             Mr. Sushil Kumar, learned senior counsel was also <\/p>\n
critical about the deposition of PW-8. He submitted that PW-8 <\/p>\n
was   an   introduced   witness.   His   presence   is   not   stated   in   the <\/p>\n
FIR.  PW-8 does not get himself medically examined at Jind on <\/p>\n
the day of incident or at Rohtak but goes to a private doctor and <\/p>\n
tells him that he suffered injuries because  he fell accidentally. <\/p>\n
He, thus, submitted that the evidence of PW-1, PW-4 and PW-8 <\/p>\n
was not reliable and trustworthy. In support of his submission, <\/p>\n
he cited  Balakrushna Swain  v.  State of Orissa3, Balak Ram  v. <\/p>\n
State   of   U.P.4,   Vijaybhai   Bhanabhai   Patel  v.  Navnitbhai  <\/p>\n
Nathubhai Patel & Ors.5 and Darshan Singh<\/a> v. State of Punjab  <\/p>\n
& Anr.6.\n<\/p>\n
3  (1971) 3 SCC 192<\/p>\n
4  (1975) 3 SCC 219<\/p>\n
5  (2004) 10 SCC 583<\/p>\n
6  (2010) 2 SCC 333<\/p>\n
                                                                          16<\/span><\/p>\n
29.             Learned   senior   counsel   strenuously   urged   that   the <\/p>\n
circumstantial   evidence   on   record   clearly   disproves   the <\/p>\n
prosecution   case.   No   blood   was   found   on   the   spot   and   there <\/p>\n
was absence of blood on the clothes of the person who is said <\/p>\n
to   have   carried   the   injured.   The   ballistic   evidence   completely <\/p>\n
rules   out   complicity   of   the   appellants.   He   relied   upon   the <\/p>\n
decisions   of   this   Court   in   the   cases   of  Khima   Vikamshi   and  <\/p>\n
others v. State of Gujarat7,  Balwan Singh v. State of Haryana8,  <\/p>\n
Brijpal Singh  v.  State of M.P.9,  Ghurey Lal1,  Mahendra Pratap  <\/p>\n
Singh<\/a> v. State of Uttar Pradesh.10 and Darshan Singh6.<\/p>\n
30.             Learned   senior   counsel   for   the   appellants   also <\/p>\n
submitted   that   number   of   deaths   does   not   matter   in <\/p>\n
appreciation of evidence. According to him, the High Court was <\/p>\n
unnecessarily  influenced   by  the  fact  that   three   murders  in   the <\/p>\n
same   family   had   taken   place   resulting   in   erroneous <\/p>\n
appreciation   of   the   evidence.   In   this   regard,   he   cited  State   of  <\/p>\n
7  (2003) 9 SCC 420<\/p>\n
8  (2005) 11 SCC 245<\/p>\n
9  (2003) 11 SCC 219<\/p>\n
10 (2009) 11 SCC 334<\/p>\n
                                                                             17<\/span><\/p>\n
U.P.  v.  Moti Ram and others11, Deepak Kumar  v.  Ravi Virmani  <\/p>\n
& Anr.12 and Asif Mamu<\/a> v. State of Madhya Pradesh.13<\/p>\n
31.              It  was  also contended  by Mr.  Sushil  Kumar  that  in <\/p>\n
the   event   of   conviction   of   the   appellants   being   set   aside,   A-2 <\/p>\n
may   also   be   granted   same   relief   although   his   SLP   has   been <\/p>\n
dismissed. He would contend that SLP filed by A-2 was non-est <\/p>\n
since he had a right of appeal under  Section 2 of the 1970 Act <\/p>\n
and, therefore, the order of this Court dismissing his SLP is also <\/p>\n
non-est.   In   support   of   his   contention,   he   referred   to   few <\/p>\n
decisions of this Court, namely, Harbans Singh v. State of Uttar  <\/p>\n
Pradesh   and   others<\/a>14,   A.R.   Antulay  v.  R.S.   Nayak   and<\/a>  <\/p>\n
another15,  Raja   Ram   and   Ors.    v.  State   of   M.P.16,  Deepak  <\/p>\n
Kumar12, Akhil Ali Jehangir Ali Sayyed<\/a> v. State of Maharashtra17 <\/p>\n
and Shingara Singh v. State of Haryana &<\/a> another18.<\/p>\n
32.              Mr.   Arun   Bhardwaj,   learned   counsel   for   A-6 <\/p>\n
contended that A-6 has been falsely implicated in the incident. <\/p>\n
He referred to the evidence of PW-1 and submitted that not a <\/p>\n
11 (1990) 4 SCC 389<\/p>\n
12 (2002) 2 SCC 737<\/p>\n
13 (2008) 15 SCC 405<\/p>\n
14  (1982) 2 SCC 101<\/p>\n
15  (1988) 2 SCC 602<\/p>\n
16  (1994) 2 SCC 568<\/p>\n
17  (2003) 2 SCC 708<\/p>\n
18  (2003) 12 SCC 758<\/p>\n
                                                                            18<\/span><\/p>\n
word is stated by him about the involvement of A-6. He argued <\/p>\n
that the prosecution evidence does not establish the complicity <\/p>\n
of   A-6   at   all   and   the   High   Court   was   in   error   in   reversing   the <\/p>\n
judgment of acquittal as regards him.\n<\/p>\n<\/p>\n
33.             Ms. June Chaudhari, learned senior counsel for the <\/p>\n
State   opposed   the   submissions   of   the   learned   senior   counsel <\/p>\n
and   the   learned   counsel   for   the   appellants   with   equal <\/p>\n
vehemence.   She   stoutly   defended   the   judgment   of   the   High <\/p>\n
Court   and   submitted   that   from   the   entire   evidence   let   in   by <\/p>\n
prosecution   and   considered   by   the   High   Court,   it   is   apparent <\/p>\n
that the view taken by the High Court is the only possible view <\/p>\n
and the High Court was fully justified in reversing the judgment <\/p>\n
of   the   trial   court.   She   submitted   that   Section   149   IPC   was <\/p>\n
integral   part   of   the   charge   and   the   prosecution   evidence <\/p>\n
establishes  the  unlawful assembly of  which   A-1,  A-3,  A-4  and <\/p>\n
A-5 were members along with A-2 and the three murders were <\/p>\n
committed   in   pursuance   of   its   common   object.   She   submitted <\/p>\n
that all the members of the unlawful assembly were armed with <\/p>\n
deadly   weapons   and   their   conviction   by   the   High   Court   does <\/p>\n
not suffer from any legal or factual infirmity.<\/p>\n
                                                                                 19<\/span><\/p>\n
34.            That Chand, Sunil and Pawan died  homicidal death <\/p>\n
is neither in doubt nor in issue. The question that arises  for our <\/p>\n
consideration   is   whether   the   High   Court   was   justified   in <\/p>\n
interfering   with   the   order   of   acquittal   passed   in   favour   of   the <\/p>\n
appellants by the trial court.  Obviously, if the complicity of the <\/p>\n
appellants   (A-1,   A-3,   A-4,   A-5   and   A-6)   with   the   crime   is <\/p>\n
established beyond any reasonable doubt, the view of the High <\/p>\n
Court would not call for any interference.<\/p>\n
35.            The two courts –   High Court and the trial court — <\/p>\n
have divergence of opinion with regard to the evidence of eye <\/p>\n
witnesses. The trial court rejected the evidence of PW-1, PW-4 <\/p>\n
and PW-8 for the following reasons :\n<\/p>\n<\/p>\n
        “It   is   evident   from   a   careful   perusal   of   the   evidence <\/p>\n
        led by the prosecution that there is chequered history <\/p>\n
        of   unending   hostility   between   the   complainant   party <\/p>\n
        and the accused in connection with the affairs of the <\/p>\n
        Truck Union. They are all transporters by profession. <\/p><\/blockquote>\n
        It   seems   that   there   was   a   brawl   between   accused <\/p>\n
        Shyam   Sunder   and   some   members   of   the <\/p>\n
        complainant   party   on   that   fateful   evening.   The <\/p>\n
        medical evidence reveals that there was flame effect, <\/p>\n
        blackening   and   tattooing   at   the   entry   wounds   on   all <\/p>\n
        the three bodies meaning thereby that the shots had <\/p>\n
        been fired from point-blank range. The recovery of the <\/p>\n
        articles   like   Belcha   and   Sword   at   the   spot   goes   to <\/p>\n
        show   that   accused   Shyam   Sunder   may   have   found <\/p>\n
        himself   in  imminent  danger   and   he   resorted   to   firing <\/p>\n
        from   his   licensed   pistol   thereby   claiming   the   lives   of <\/p>\n
        the three youngmen. Accused Shyam Sunder has not <\/p>\n
                                                                                    20<\/span><\/p>\n
pleaded   the   right   of   private   defence   of   person   and <\/p>\n
property   but   he   has   pleaded   false   implication   at   the <\/p>\n
hands   of   the   sworn   enemies   of   the   family.   The <\/p>\n
circumstances   of   the   case   also   do   not   warrant   the <\/p>\n
extension   of   such   concession   to   him.   He   had   not <\/p>\n
suffered   any   serious   injury   in   the   incident   and   the <\/p>\n
claim   for   use   of   force   in   defence   of   person   and <\/p>\n
property has to be completely excluded in this case. <\/p>\n
P.W.   Rohtas   did   not   suffer   a   firearm   injury   in   the <\/p>\n
incident. Similarly, P.W. Rakesh had allegedly offered <\/p>\n
himself   for   medico   legal   examination   to   a   private <\/p>\n
medical practitioner and he had told him that he had <\/p>\n
suffered   the   injuries   in   an   accidental   fall.   It   is   also <\/p>\n
evident that complainant Sewa Singh may not have at <\/p>\n
all witnessed  the occurrence  but he  offered to lodge <\/p>\n
the   First   Information   Report   after   due   deliberations <\/p>\n
and consultations. A story was  concocted with  intent <\/p>\n
to   implicate   all   the   male   members   of   the   family   of <\/p>\n
accused Jalpat Rai. A last minute efforts was made to <\/p>\n
rope in his other two  sons namely,  Vinod and Sushil <\/p>\n
by   moving   an   application   under   Section   319   of   the <\/p>\n
Criminal   Procedure   Code   which   was   eventually <\/p>\n
withdrawn   by   the   learned   Public   Prosecutor   on <\/p>\n
prevalence   of  better  counsel  upon  him.  All  the  three <\/p>\n
alleged   eye   witnesses   have   rendered   highly <\/p>\n
contradictory   versions   and   their   evidence   does   not <\/p>\n
receive corroboration from the medical evidence and <\/p>\n
the   ballistic   expert’s   report.   It   shall   be   absolutely <\/p>\n
absurd to say that multiple firearms were used in the <\/p>\n
incident. All the three deaths were caused by the use <\/p>\n
of   .32   bore   licensed   pistol   (Exp.   22)   owned   by <\/p>\n
accused Shyam Sunder and this court has very valid <\/p>\n
reasons   to   believe   that   he   had   pressed   the   trigger <\/p>\n
each time. Let it be made absolutely clear here that it <\/p>\n
is   not   the   case   of   the   prosecution   that   the   licensed <\/p>\n
firearm   of   accused   Shyam   Sunder   had   been   taken <\/p>\n
away   from   him   by   any   other   accused   or   that   it   had <\/p>\n
been used for gunning down the three victims. It is the <\/p>\n
case of the prosecution that accused Shyam Sunder <\/p>\n
had triggered off the incident by firing a shot from his <\/p>\n
pistol   even   as   the   complainant   and   his   companions <\/p>\n
were walking away from him. It is also the case of the <\/p>\n
prosecution that the complainant and his companions <\/p>\n
                                                                              21<\/span><\/p>\n
              turned   about   and   rushed   to   nab   accused   Shyam <\/p>\n
              Sunder but he fired a shot at Chand which hit him in <\/p>\n
              the   left   flank   and   killed   him.   The   same   weapon   was <\/p>\n
              used   for   causing   firearm   injuries   to   deceased   Sunil <\/p>\n
              and deceased Pawan. Therefore, there should be no <\/p>\n
              manner   of   doubt   about   the   direct   involvement   of <\/p>\n
              accused   Shyam   Sunder   in   the   commission   of   the <\/p>\n
              alleged crime.”\n<\/p>\n<\/p>\n
36.                 On   the   other   hand,   the   High   Court   was   not <\/p>\n
convinced   with   the   reasoning   of   the   trial   court   and   found   the <\/p>\n
evidence   of   PW-1,   PW-4   and   PW-8   cogent,   convincing   and <\/p>\n
truthful. The High Court with regard to their evidence observed <\/p>\n
thus :\n<\/p>\n<\/p>\n
              “…….The   learned   trial   Court   has   misread   and <\/p>\n
              misinterpreted the evidence of the eye-witnesses and <\/p>\n
              the doctors as already discussed above. Occurrence <\/p>\n
              in this case had taken place on 2.10.2002 at 10 p.m. <\/p>\n
              Statement   of   Sewa   Singh   PW-1   was   recorded   on <\/p>\n
              3.10.2002   at   12.30   a.m.   and   F.I.R.   Ex.   PV   was <\/p>\n
              recorded   on   3.10.2002   at   12.50   a.m.   The   special <\/p>\n
              report   reached   the   safe   hands   of   C.J.M.,   Jind   on <\/p>\n
              3.10.2002 at 2.30 a.m. The name of the accused, the <\/p>\n
              weapon of offence, the injuries inflicted, the name of <\/p>\n
              the witnesses are given in detail in the F.I.R. This in <\/p>\n
              fact,   goes   a   long   way   in   proving   the   case   of   the <\/p>\n
              prosecution.   The   complainant   party   did   not   get   any <\/p>\n
              time to consult and confabulate with each other as to <\/p>\n
              who to falsely implicate. The F.I.R. is prompt and gets <\/p>\n
              corroboration from the other evidence on record.” <\/p>\n<\/blockquote>\n
37.                 PW-1   and   PW-4   are   real   brothers.     PW-8   and   the <\/p>\n
deceased are nephews of PW-1 and PW-4.     The presence of <\/p>\n
                                                                                       22<\/span><\/p>\n
PW-1, PW-4 and PW-8  at the time of incident, does not appear <\/p>\n
to us to be doubtful.    The trial court has doubted the presence <\/p>\n
of   PW-1   at   the   place   of   occurrence   but   we     find   it   difficult   to <\/p>\n
accept   the   reasoning   of   the   trial     court   in   this   regard.     Being <\/p>\n
transporter,   the   presence   of   PW-1   in   his   office   at   about   9.00 <\/p>\n
p.m.   was   not   unnatural.     It   was   his   good   luck   that   he   did   not <\/p>\n
receive any injury in the incident.  We do not think that absence <\/p>\n
of any injury on his person renders his presence doubtful.  The <\/p>\n
presence of PW-4 and PW-8 at the time of incident also cannot <\/p>\n
be   doubted.   Both   of   them   suffered   injuries.   Both,   PW-4   and <\/p>\n
PW-8,   were   medically   examined   by   PW-6.       PW-4   was <\/p>\n
examined   by   PW-6   immediately   after   the   incident   at   about <\/p>\n
10.15 p.m. on October 2, 2002. PW-8 was examined by PW-6 <\/p>\n
on the next day, i.e. October 3, 2002 in the afternoon.  The trial <\/p>\n
court     doubted   that   the   injury   suffered   by  PW-4   was   from   the <\/p>\n
firearm   but     the   evidence   of     Dr.   Paryesh   Gupta   (PW-19) <\/p>\n
leaves no manner of doubt that PW-4 received  firearm injury in <\/p>\n
the incident. PW-19 deposed that PW-4 was operated upon for <\/p>\n
a   firearm   injury   in   the   abdomen   on   October   3,   2002   in   the <\/p>\n
emergency O.T. and the firearm was used from a close range. <\/p>\n
                                                                                 23<\/span><\/p>\n
However, the presence of PW-1, PW-4 and PW-8 at the time of <\/p>\n
incident   does   not   guarantee   truthfulness.     The   question   is <\/p>\n
whether   their   testimony   is   trustworthy   and     reliable   insofar   as <\/p>\n
complicity of the appellants with the crime is concerned or they <\/p>\n
have tried to involve the innocent along with the guilty. <\/p>\n
38.           Broadly,   the   evidence   of   PW-1,   PW-4   and <\/p>\n
PW-8  has been indicated by us while narrating the prosecution <\/p>\n
case   and   by   reason   therefor,   we   need   not   reiterate   the   same <\/p>\n
except   the   salient   features   emerging   therefrom.   PW-1   had   a <\/p>\n
long standing rivalry with A-1 in connection with Truck Owners’ <\/p>\n
Union. Their rivalry has led to many criminal cases being   filed <\/p>\n
against   each   other.   PW-1   was   prosecuted   earlier   for   causing <\/p>\n
injuries to A-1 and others. On September 12, 2002, i.e., about <\/p>\n
20   days   prior   to   the   date   of   present   incident,   an   FIR   was <\/p>\n
registered   against   PW-1   and   his   partner   under   Sections   323, <\/p>\n
506,  148  and 454  IPC  at  Police  Station  City,   Jind  for   causing <\/p>\n
injuries   to   one   Shambir.   In   that   incident,   A-2   was   an   eye- <\/p>\n
witness.   Two   days   later,     on   September   14,   2002,   PW-1 <\/p>\n
reported to the police against A-2, A-3, A-4 and A-5 by way of <\/p>\n
counter   case   but   police   did   not   take   any   action.   A   complaint <\/p>\n
                                                                          24<\/span><\/p>\n
was then lodged by PW-1 party against A-2, A-3, A-4 and A-5 <\/p>\n
in the Court of Additional Chief Judicial Magistrate, Jind. <\/p>\n
39.            PW-1,   PW-4   and   PW-8   are   not   only   much <\/p>\n
interested   in   the   prosecution   case   but   they   are   inimically <\/p>\n
disposed towards the accused party as well.  The deep rooted <\/p>\n
enmity and serious disputes between   PW-1 on the   one hand <\/p>\n
and A-1 and his sons on the other  and their unflinching interest <\/p>\n
in the prosecution case necessitate that the evidence of PW-1, <\/p>\n
PW-4 and PW-8  is considered with care  and caution.  To find <\/p>\n
out   intrinsic   worth   of   these   witnesses,   it   is   appropriate   to   test <\/p>\n
their trustworthiness and credibility in light of the  collateral and <\/p>\n
surrounding   circumstances   as   well   as   the   probabilities   and   in <\/p>\n
conjunction with all other facts brought out on record.     There <\/p>\n
cannot   be   a     rule   of   universal   application   that   if     the   eye-<\/p>\n
witnesses   to   the   incident   are   interested   in   prosecution   case <\/p>\n
and\/or   are   disposed     inimically   towards   the   accused   persons, <\/p>\n
there should be corroboration to their evidence.   The evidence <\/p>\n
of   eye-witnesses,   irrespective   of   their   interestedness,   kinship, <\/p>\n
standing or enmity with   the accused, if found credible and of <\/p>\n
such   a   caliber   as   to   be   regarded   as   wholly   reliable   could   be <\/p>\n
                                                                               25<\/span><\/p>\n
sufficient   and   enough   to   bring   home   the   guilt   of   the   accused. <\/p>\n
But it is  reality in life, albeit  unfortunate and sad, that  human <\/p>\n
failing   tends   to   exaggerate,   over-implicate   and  distort   the   true <\/p>\n
version against the person\/s with whom there is rivalry, hostility <\/p>\n
and   enmity.     Cases   are   not   unknown       where   entire   family   is <\/p>\n
roped in due to enmity and simmering feelings although one or <\/p>\n
only few members of that family may be involved in the crime. <\/p>\n
In   the   circumstances   of   the   present   case,   to   obviate     any <\/p>\n
chance   of   false   implication   due   to   enmity   of   the   complainant <\/p>\n
party  with  the  accused  party  and  the  interestedness   of  PW-1, <\/p>\n
PW-4 and PW-8 in the prosecution case, it is prudent to look for <\/p>\n
corroboration   of   their   evidence   by     medical\/ballistic   evidence <\/p>\n
and   seek   adequate   assurance     from   the   collateral   and <\/p>\n
surrounding   circumstances   before   acting   on   their   testimony. <\/p>\n
The   lack   of   corroboration   from   medical   and   ballistic   evidence <\/p>\n
and   the   circumstances   brought   out   on   record   may   ultimately <\/p>\n
persuade   that   in   fact   their   evidence   cannot   be   safely   acted <\/p>\n
upon.\n<\/p>\n<\/p>\n
40.           Besides   PW-1,   PW-4   and   PW-8,   who   are   closely <\/p>\n
related to   the three deceased,   no other independent witness <\/p>\n
                                                                           26<\/span><\/p>\n
has been examined although the   incident occurred in   a busy <\/p>\n
market area.     The place of occurrence was visited by PW-20 <\/p>\n
in   the   same   night     after   the   incident.   He   found     three   two-<\/p>\n
wheelers     one   bearing   no.   HR–31–A\/5071,   the   second <\/p>\n
bearing no. RJ–13–M\/7744 and the third without number lying <\/p>\n
there.     One   Maruti   car   bearing   no.   HR–20–D\/8840   with <\/p>\n
broken   glasses   was   also   parked   there.   The   owners   of   these <\/p>\n
vehicles have not been examined. At the place of occurrence, <\/p>\n
one HMT Quartz wrist watch with black strap, one belcha and <\/p>\n
four pair of chappals were also found. There is no explanation <\/p>\n
at all by the prosecution with regard to these articles.   Nothing <\/p>\n
has come on record whether four pair of chappals belonged to <\/p>\n
the   accused   party   or   the   complainant   party   or   some   other <\/p>\n
persons.   Whether HMT Quartz wrist  watch that was found at <\/p>\n
site  was worn by one of the accused or one of the members of <\/p>\n
the   complainant   party   or   somebody   else   is   not   known.   Then, <\/p>\n
the   mystery   remains   about     belcha   that   was     found   at   site. <\/p>\n
These   circumstances   instead   of   lending   any   corroboration   to <\/p>\n
the evidence of those three key witnesses, rather suggest that <\/p>\n
they have not come out with the true and complete disclosure <\/p>\n
                                                                           27<\/span><\/p>\n
of the incident.\n<\/p>\n<\/p>\n
41.             If   the   evidence   of   PW-1,   PW-4   and   PW-8   is   to   be <\/p>\n
believed   then   there   was   indiscriminate   firing   by   the   accused <\/p>\n
party at the complainant party.   PW-1 has said so in so many <\/p>\n
words. Four members of the accused  party – A-1, A-2, A-3 and <\/p>\n
A-4 – were armed with firearms.  According to these witnesses, <\/p>\n
all   of   them   fired   shots   from   the   firearms   they   were   carrying. <\/p>\n
The first shot was fired by A-2 from the pistol he was carrying <\/p>\n
(although   in   the   FIR   it   is   recorded     that   A-2   was   armed   with <\/p>\n
revolver but this inconsistency is not very material).   That shot <\/p>\n
did   not hit anyone.     A-2 then again fired shot that hit Chand. <\/p>\n
A-4   fired   a   shot   with     pistol   that   hit   Sunil.   A-3   and   A-1   fired <\/p>\n
shots from their guns and A-2 and A-4 also fired shots from the <\/p>\n
pistols   causing injuries to Pawan and PW-4. However, at the <\/p>\n
place of occurrence,   only three empties were found.   Had the <\/p>\n
firing taken place in the manner deposed by PW-1, PW-4 and <\/p>\n
PW-8, obviously there should have been  more  empties at the <\/p>\n
place of occurrence.   It is conjectural to assume, as has been <\/p>\n
done by High Court, that the Investigating Officer was not able <\/p>\n
to   recover   more   than   three   empties   because     the   occurrence <\/p>\n
                                                                                 28<\/span><\/p>\n
took place in `chowk’ and by the time he reached at the site, a <\/p>\n
lot of traffic must have passed there.  Moreover, at the scene of <\/p>\n
occurrence, there were no marks of indiscriminate firing.  <\/p>\n
42.           The medical evidence is clear and specific that   the <\/p>\n
three   deceased–Chand,   Sunil   and   Pawan   received   one <\/p>\n
firearm injury each.  The blackening and singeing injuries leave <\/p>\n
no   manner   of   doubt   that   shots   were   fired   at   the   deceased <\/p>\n
persons  from a very close range.   As a matter of fact, medical <\/p>\n
evidence   is   categorical   to   that   effect.   However,   the   ocular <\/p>\n
account given by PW-1, PW-4 and PW-8 does not indicate that. <\/p>\n
43.           The   ballistic   report   records   unambiguously   and <\/p>\n
unequivocally   that   the   crime   bullets   (BC\/1   to   BC\/3)   and   the <\/p>\n
cartridge cases (C\/1 to C\/3)   were fired by the pistol stated to <\/p>\n
have   been   recovered   from     A-2   and   no   other   firearm.       The <\/p>\n
cartridge  cases and the crime  bullets  have  positively  matched <\/p>\n
to   7.65   mm   pistol   no.   109033-2002.     This   pistol   is   licensed <\/p>\n
pistol   of     A-2   and   was   recovered   from   him   in   dismantled <\/p>\n
condition   with   parts   separated   in   three   pieces.     The   Forensic <\/p>\n
Science   Laboratory   marked   the   above   pistol   `W\/2′   for   the <\/p>\n
                                                                        29<\/span><\/p>\n
identification purposes.   Based on the examination carried out <\/p>\n
in the Laboratory, the result of analysis is recorded as under: <\/p>\n
         “7.65 mm cartridge  cases and bullets marked C\/1 to <\/p>\n
         C\/3   and   BC\/1   to   BC\/3   respectively   had   been   fired <\/p>\n
         from   7.65   mm   pistol   marked   W\/2   and   not   from   any <\/p>\n
         other   firearm   even   of   the   same   make   and   calibre <\/p>\n
         because   every   firearm   has   got   its   own   individual <\/p>\n
         characteristic marks”.\n<\/p><\/blockquote>\n
<\/blockquote>\n
 The ballistic evidence is clearly in conflict with the evidence of <\/p>\n
PW-1, PW-4 and PW-8  and  shatters their evidence completely <\/p>\n
vis-`-vis  the   appellants.         The   testimony  of   PW-1,   PW-4  and <\/p>\n
PW-8 about the role of appellants, thus,  is not corroborated by <\/p>\n
medical and ballistic evidence.   Their evidence also   does not <\/p>\n
get   support   from   the   collateral   circumstances   that   have   come <\/p>\n
on record.\n<\/p>\n<\/p>\n
44.            The   deposition   of   PW-1,   PW-4   and   PW-8     suffers <\/p>\n
from   significant   improvements   and   omissions   as   well.     PW-1 <\/p>\n
deposed   that   he     did   not   tell   the   police   that   Satish   had   fired <\/p>\n
from his .12 bore licensed gun, Jalpat had fired from .22 rifle of <\/p>\n
Shyam   Sunder   and   Purshotam   had   fired   from   .32   licensed <\/p>\n
pistol of Satish but when he was confronted with portion A to A <\/p>\n
of     his   statement   (Ex.   DA)     before   police,   it   was   found   that   it <\/p>\n
was     so   recorded.       He     testified   that   he   had   stated   in   his <\/p>\n
                                                                                30<\/span><\/p>\n
statement   to   the   police   that   A-5   had   caused   injuries   to   PW-8 <\/p>\n
but   when   confronted   with   that   statement,   it   was   found   that   it <\/p>\n
was not so stated.   PW-4 deposed that he had told the   police <\/p>\n
that   A-4     had   fired   at   Sunil   from   his   revolver   but   when <\/p>\n
confronted  with  that  statement,  it  transpired  that it  was not so <\/p>\n
stated.       He also deposed that he had told the police that A-5 <\/p>\n
had given a sword blow to  PW-8   on  his  temple but when  he <\/p>\n
was confronted with that statement, it was found that it was not <\/p>\n
so stated. PW-8 deposed that  he  had stated before the police <\/p>\n
that the shots fired by A-3 and   A-1 from their guns did not hit <\/p>\n
anyone but when confronted with that   statement, it transpired <\/p>\n
that he has not so stated.\n<\/p>\n<\/p>\n
45.           As regards arrival of A-5 at the place of occurrence, <\/p>\n
the evidence of PW-1 and PW-8 is not consistent.   PW-1 has <\/p>\n
deposed   that   A-5   was   also   present   with   the   other   accused <\/p>\n
when   the   incident   started;     he   was   armed     with   sword   and <\/p>\n
caused   injuries   with   the   sword   to   PW-8.   PW-8,   on   the   other <\/p>\n
hand,   has   stated   that   A-5   descended   on   the   scene   of <\/p>\n
occurrence after firing had started.\n<\/p>\n
                                                                           31<\/span><\/p>\n
46.           We   have   indicated   broadly   some   of   the   more <\/p>\n
serious infirmities in the evidence of the eye-witnesses (PW-1, <\/p>\n
PW-4 and PW-8) in order to indicate that their evidence at any <\/p>\n
rate is not wholly true and  it is unsafe to act on their  evidence <\/p>\n
insofar   as   complicity   of   A-1,   A-3,   A-4,   A-5   and   A-6   is <\/p>\n
concerned.  Brushing  the impact of these infirmities aside , the <\/p>\n
High   Court   erroneously   treated   the   evidence   of   PW-1,   PW-4 <\/p>\n
and   PW-8   cogent,   convincing   and   truthful.     All   in   all,   the <\/p>\n
evidence   of   PW-1,   PW-4   and   PW-8   lacks   in   credibility   and   is <\/p>\n
not of sterling worth  to prove the involvement of A-1, A-3, A-4, <\/p>\n
A-5     and A-6 in the crime beyond any reasonable doubt.     As <\/p>\n
regards   A-6,     as   a   matter   of   fact,   it   was     conceded   by   the <\/p>\n
learned senior counsel for the State that there was no reliable <\/p>\n
evidence to prove his involvement in the crime.  The appellants, <\/p>\n
in our opinion, are entitled to benefit of doubt.  <\/p>\n
47.           Incidentally,   Vinod   and   Sushil   (sons   of   A-1)   were <\/p>\n
also shown as assailants in the FIR.   In the investigation, their <\/p>\n
presence was not established; they were not   charge-sheeted. <\/p>\n
PW-1, PW-4 and PW-8, however, in their deposition before the <\/p>\n
Court   made   an   attempt   to   implicate   them.     Based   on   their <\/p>\n
                                                                            32<\/span><\/p>\n
deposition,   the   public   prosecutor   made   an   application   under <\/p>\n
Section 319 of Cr.P.C.   for summoning those two sons of A-1 <\/p>\n
but   that   application   was   eventually   withdrawn.     This   by   itself <\/p>\n
has not much bearing in the case.   What it shows is that there <\/p>\n
has     been     attempt   by   PW-1,   PW-4   and   PW-8   right   from   the <\/p>\n
inception   to   rope   in   A-1   and   all   his   sons   in   the   incident <\/p>\n
irrespective of whether  all of them were involved in the crime or <\/p>\n
not.\n<\/p>\n<\/p>\n
48.           We   are   not   oblivious   of   the   fact   that   A-2   was <\/p>\n
convicted   by the trial court for the offence under Section 302 <\/p>\n
IPC but the High Court has altered his conviction from Section <\/p>\n
302   to     Section   302   IPC   read   with   Section   149   IPC   and   his <\/p>\n
special   leave   petition   (SLP)     against   that   judgment   has   been <\/p>\n
dismissed summarily.     The  dismissal  of  SLP   summarily  does <\/p>\n
not   mean   affirmance       of   the   judgment   of   the   High   Court   on <\/p>\n
merits.     It   has   been   repeatedly   held   by   this   Court   that   mere <\/p>\n
dismissal of SLP does not amount to acceptance of correctness <\/p>\n
of the High Court decision.  The order of this Court in A-2’s SLP <\/p>\n
is not an impediment   in allowing these two appeals once it is <\/p>\n
                                                                           33<\/span><\/p>\n
held   that   prosecution   has   failed   to  prove  the   complicity  of   the <\/p>\n
appellants beyond any reasonable doubt.\n<\/p>\n<\/p>\n
49.            We   are   not   impressed   by   the   argument   of <\/p>\n
Mr.   Sushil   Kumar,   learned   senior   counsel,   that   the   SLP <\/p>\n
preferred   by   A-2   was   non-est   since   he   had   a   right   of   appeal <\/p>\n
under   Section   2   of   the   1970   Act     and,   therefore,   the   order   of <\/p>\n
this Court dismissing the SLP preferred by A-2 is   also a non-<\/p>\n
est.         The   judgments   cited   by   learned   Senior   Counsel   in <\/p>\n
support   of   his   submission   that   in   the   event   of   appellants’ <\/p>\n
conviction being set aside, A-2 is also entitled to the same relief <\/p>\n
although   his   SLP   has   been   dismissed   have   no   application   to <\/p>\n
the facts of the present case.  The case against A-2 stands on <\/p>\n
a different footing.   The ballistic evidence is conclusive against <\/p>\n
him   and   leaves   no   manner   of   doubt   about   his   involvement   in <\/p>\n
the crime.   We need not say any further in this regard as SLP <\/p>\n
preferred   by   A-2   against   his   conviction   has   already   been <\/p>\n
dismissed.\n<\/p>\n<\/p>\n
50.            In view of the  above discussion, these two appeals <\/p>\n
are allowed and the judgment of the  High Court as regards the <\/p>\n
present   appellants   is   set   aside.   The   judgment   of   acquittal <\/p>\n
                                                                              34<\/span><\/p>\n
passed   in   their   favour   by   the   trial   court   is   restored.   The <\/p>\n
appellants     Jalpat   Rai   and   Pawan   are   already   on   bail   and <\/p>\n
accordingly     their   bail   bonds   are   discharged.     The   other <\/p>\n
appellants, Satish Kumar, Purshotam and Harinder alias   Kala <\/p>\n
be released forthwith, if not required in any other case.  <\/p>\n<\/p>\n
                                                                      . …………………J.\n<\/p>\n
                                                                           (Aftab   Alam)<\/p>\n
                                                                     …………………… J.\n<\/p>\n
                                                                          (R.M. Lodha)<\/p>\n
NEW DELHI,<\/p>\n
JULY  6, 2011.\n<\/p>\n
                                                                                        35<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Jalpat Rai & Ors vs State Of Haryana on 6 July, 2011 Author: R Lodha Bench: Aftab Alam, R.M. Lodha 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-224412","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nJalpat Rai & Ors vs State Of Haryana on 6 July, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jalpat-rai-ors-vs-state-of-haryana-on-6-july-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jalpat Rai & Ors vs State Of Haryana on 6 July, 2011 - 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