Jalpat Rai & Ors vs State Of Haryana

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.

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.

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.

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.

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.

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:

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.

(R.M. Lodha) NEW DELHI, JULY 6, 2011.