Case: Jalpat Rai  Vs. State Of Haryana

pieces. The Forensic Science Laboratory marked the above pistol `W/2 for the 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 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. 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 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-2s SLP is not an impediment in allowing these two appeals once it is 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,

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]PW-1 and PW-4 are real brothers. PW-8 and the deceased are nephews of PW-1 and PW-4. The presence of 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.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 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 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 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 of theHigh 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 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-2s SLP is not an impediment in allowing these two appeals once it is 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.