# 7 S.C.R. 1037 JALPAT RAI & ORS v. STATE OF HARYANA

- **Citation:** [2011] 7 S.C.R. 1037
- **Court:** Supreme Court of India
- **Decided:** 2011-07-06
- **Case number:** Criminal Appeal No. 1736 of 2007
- **Bench:** Aftab Alam, R.M. Lodha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/7-s-c-r-1037-jalpat-rai-ors-v-state-of-haryana-27765
- **Pages:** 33

## Headnote

A
B
Penal Code, 1860: s. 302 rlw s. 149 and s. 148 - Fire shots
resulting in death of three persons - Conviction of A-2 uls. 302
and s. 27 of Arms Act, 1959 and acquittal of the other accused
C
(appellants) by trial court on the ground that the ocular
testimony of prosecution witnesses was not reliable and was
contradictory to the report of the ballistic expert - High Court
held that the evidence of prosecution witnesses was cogent,
convincing and truthful and convicted appellants uls. 148 and D
s. 302 r/w s. 149 - On appeal, held: Prosecution witnesses were
closely related to the three deceased -
Their evidence
showed their long standing rivalry with accused party - Thus,
prosecution witnesses were not only much interested in the
prosecution case but they were inimically disposed towards
E
the accused party as well - No other independent witness was
examined although the incident occurred in a busy market
area - At the place of occurrence, one wrist watch, one betcha
and four pair of chappals were also found - There was no
explanation at all by the prosecution with regard to these
F
articles -
These circumstances instead of lending any
corroboration to the evidence of the three key witnesses,
rather suggested that they had not come out with the true and
complete disclosure of the incident -
The evidence of
prosecution witnesses was to tl1e effect that there was
G
indiscriminate firing by the accused party at the complainant
party - However, at the place of occurrence, only three
empties were found - Moreover, at the scene of occurrence,
there were no marks of indiscriminate firing - The ballistic
1037
H
1038
SUPREME COURT REPORTS
[2011) 7 S.C.R.
A report recorded that the crime bullets and the cartridge cases
were fired by the pistol recovered from A-2 only -
The
testimony of prosecution witnesses about the role of
appellants, thus, was not corroborated by medical and ballistic
evidence - The deposition of prosecution witnesses suffered
B from significant improvements and omissions as well -
Serious infirmities in the evidence of the eye-witnesses
indicated that their evidence was not wholly true and it was
unsafe to act on their evidence insofar as complicity of
appellants was concerned - Appellants were entitled to
c benefit of doubt - The order of acquittal passed by trial court
in favour of appellants is restored.
Appeal: Special leave petition - Held: Mere dismissal of
SLP does not amount to acceptance of correctness of High
Court decision - A-2 was convicted by trial court for the
D offence u/s.302 IPC but High Cowt altered his conviction from
s.302 to s.302 /PC r.w. s.149 /PC and his SLP against that
judgment was dismissed summarily - Dismissal of SLP
summarily did not mean affirmance of the judgment of the
High Court on merits - The order of Supreme Court in A-2's
E SLP is not an impediment in allowing the appeals of
appellants once it is held that prosecution had failed to prove
the complicity of the appellants beyond any reasonable doubt
- It is incorrect to state that since A-2 had a right of appeal ul
s.2 of the 1970 Act, therefore, the order of Supreme Court
F dismissing the SLP preferred by him was non-est - The case
against A-2 stood on a different footing -
The ballistic
evidence was conclusive against him and there was no doubt
about his involvement in the crime - Jjudgment of the High
Court as regards the appellants set aside and judgment of
G acquittal passed in their favour by the trial court is restored -
Supreme Court (enlargement of criminal appellate
jurisdiction) Act, 1970 - s.2.
Witnesses: Interested witness - Evidentiary value of -
Held: The evidence of eye-witnesses, irrespective of their
H
JALPAT RAI & ORS. v. STATE OF HARYANA
1039
interestedness, kinship, standing or enmity with the accused,
A
if found credible and of such a caliber as to be regarded as
wholly reliable can be sufficient and enough to bring home
the guilt of the accused.
The prosecution case was that on the fateful day,
8
PW-1 an

## Text

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(2011] 7 S.C.R. 1037
JALPAT RAI & ORS.
v.
STATE OF HARYANA
(Criminal Appeal No. 1736 of 2007)
JULY 06, 2011
[AFTAB ALAM AND R.M. LODHA, JJ.]
A
B
Penal Code, 1860: s. 302 rlw s. 149 and s. 148 - Fire shots
resulting in death of three persons - Conviction of A-2 uls. 302
and s. 27 of Arms Act, 1959 and acquittal of the other accused
C
(appellants) by trial court on the ground that the ocular
testimony of prosecution witnesses was not reliable and was
contradictory to the report of the ballistic expert - High Court
held that the evidence of prosecution witnesses was cogent,
convincing and truthful and convicted appellants uls. 148 and D
s. 302 r/w s. 149 - On appeal, held: Prosecution witnesses were
closely related to the three deceased -
Their evidence
showed their long standing rivalry with accused party - Thus,
prosecution witnesses were not only much interested in the
prosecution case but they were inimically disposed towards
E
the accused party as well - No other independent witness was
examined although the incident occurred in a busy market
area - At the place of occurrence, one wrist watch, one betcha
and four pair of chappals were also found - There was no
explanation at all by the prosecution with regard to these
F
articles -
These circumstances instead of lending any
corroboration to the evidence of the three key witnesses,
rather suggested that they had not come out with the true and
complete disclosure of the incident -
The evidence of
prosecution witnesses was to tl1e effect that there was
G
indiscriminate firing by the accused party at the complainant
party - However, at the place of occurrence, only three
empties were found - Moreover, at the scene of occurrence,
there were no marks of indiscriminate firing - The ballistic
1037
H
1038
SUPREME COURT REPORTS
[2011) 7 S.C.R.
A report recorded that the crime bullets and the cartridge cases
were fired by the pistol recovered from A-2 only -
The
testimony of prosecution witnesses about the role of
appellants, thus, was not corroborated by medical and ballistic
evidence - The deposition of prosecution witnesses suffered
B from significant improvements and omissions as well -
Serious infirmities in the evidence of the eye-witnesses
indicated that their evidence was not wholly true and it was
unsafe to act on their evidence insofar as complicity of
appellants was concerned - Appellants were entitled to
c benefit of doubt - The order of acquittal passed by trial court
in favour of appellants is restored.
Appeal: Special leave petition - Held: Mere dismissal of
SLP does not amount to acceptance of correctness of High
Court decision - A-2 was convicted by trial court for the
D offence u/s.302 IPC but High Cowt altered his conviction from
s.302 to s.302 /PC r.w. s.149 /PC and his SLP against that
judgment was dismissed summarily - Dismissal of SLP
summarily did not mean affirmance of the judgment of the
High Court on merits - The order of Supreme Court in A-2's
E SLP is not an impediment in allowing the appeals of
appellants once it is held that prosecution had failed to prove
the complicity of the appellants beyond any reasonable doubt
- It is incorrect to state that since A-2 had a right of appeal ul
s.2 of the 1970 Act, therefore, the order of Supreme Court
F dismissing the SLP preferred by him was non-est - The case
against A-2 stood on a different footing -
The ballistic
evidence was conclusive against him and there was no doubt
about his involvement in the crime - Jjudgment of the High
Court as regards the appellants set aside and judgment of
G acquittal passed in their favour by the trial court is restored -
Supreme Court (enlargement of criminal appellate
jurisdiction) Act, 1970 - s.2.
Witnesses: Interested witness - Evidentiary value of -
Held: The evidence of eye-witnesses, irrespective of their
H
JALPAT RAI & ORS. v. STATE OF HARYANA
1039
interestedness, kinship, standing or enmity with the accused,
A
if found credible and of such a caliber as to be regarded as
wholly reliable can be sufficient and enough to bring home
the guilt of the accused.
The prosecution case was that on the fateful day,
8
PW-1 and another person were sitting in their office. At
that time, A-2, A-3, A-4 all sons of A-1 came near their
office. They were all armed with firearms. PW-1
suspected their movement as he had previous business
rivalry with A-2 and his family. After about 10-15 minutes,
C
A-1 also came their on a motorcycle. He too was carrying
firearm. Fearing danger, PW-1 telephoned his brother PW4 who along with his nephews reached the office of PW1 in about 10-15 minutes. The complainant party closed
the office and while they were leaving for their homes, A•
2 fired one shot from behind with a licensed pistol. PW-1
D
and his nephews ran towards A-2 to catch him but A-2
fired another shot from his pistol that hit 'Ch' on the left
side of his chest. A-4 fired a shot from the pistol he was
carrying which hit 'S' on the left side of his chest. A-3 and
A-1 then started firing shots from their firearms. A-2 and
E
A-4 repeated firing from their firearms. As a result of the
shots fired by A-2 and A-4, PW-4 and 'P' received injuries.
'P', 'Ch', 'S' and PW-4 fell on the ground. A-5 gave the
sword blow to PW-8. All the accused persons then fled
from the spot. The injured were taken to hospital. On way
F
to the hospital, 'Ch' and 'S' succumbed to the injuries and
died. 'P' died 4 days after the incident
The trial court convicted A-2 under Section 302 IPC
and Section 27 of Arms Act, 1959. It however acquitted
G
the appeilants holding that the ocular testimony of PW1,. PW-4 and PW-8 was not reliable and was contradictory
to the report of the ballistic expert. On appeal, the High
Court held that the evidence of PW-1, PW-4 and PW-8 in
totality was c9gent, convincing and truthful. It allowed the
H
1040
SUPREME COURT REPORTS
[2011) 7 S.C.R.
A appeal of the State and convicted A1, A-3, A-4, A-5, A-6
under Section 148 and Section 302 r/w Section 149 IPC.
A-5 was also convicted under Section 323 IPC.
A-1, A-3 to A-6 were the appellants in the instant
8 appeals filed under Section 2 of the Supreme Court
(enlargement of criminal appellate jurisdiction) Act, 1970.
A-2 had filed special leave petition against conviction
which was dismissed summarily by Supreme Court.
c
Allowing the appeals, the Court
HELD: 1.1. PW-1 and PW-4 were real brothers. PW-8
and the deceased were nephews of PW-1 and PW-4. The
presence of PW-1, PW-4 and PW-8 at the time of incident,
did not appear to be doubtful. The trial court's reasoning
0 for doubting the presence of PW-1 at the place of
occurrence is not convincing. Being transporter, the
presence of PW-1 in his office at about 9.00 p.m. was not
unnatural. Absence of any injury on his person would not
render his presence doubtful. The presence of PW-4 and
E 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 PW6 immediately after the incident. PW-8 was examined by
PW-6 on the next day. The trial court doubted that the
F injury suffered by PW-4 was from the firearm but the
evidence of the doctor (PW-19) showed 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 and the firearm was used from a close range.
However, the presence of PW-1, PW-4 and PW-8 at the
G time of incident did not guarantee truthfulness. [Para 37]
[1062-G~H; 1063-A-D]
1.2. The evidence of PW-1, PW-4 and PW-8 that PW1 had a long standing rivalry with A-1 in connection with
H Truck Owners' Union. Their rivalry had led to many
JALPAT RAI & ORS. v. STATE OF HARYANA
1041
criminal cases being filed against each other. PW-1 was
A
prosecuted earlier for causing injuries to A-1 and others.
About 20 days prior to the incident, an FIR was registered
against PW-1 and his partner under Sections 323, 506,
148 and 454 IPC. In that incident, A-2 was an eye-witness.
Two days later, 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 PW1 party against A-2, A-3, A-4 and A-5 in the Court of
Additional Chief Judicial Magistrate. PW-1, PW-4 and PWB
8 were, therefore, not only much interested in the c
prosecution case but they were 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 necessitated
0
1 consideration of the evidence of PW-1, PW-4 and PW-8
with care and caution. To find out intrinsic worth ofthese ·
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
E
F
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,
G
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 H
1042
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A members of that family may be involved in the crime. In
the circumstances of the instant 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
B 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
c the circumstances brought out on record may ultimately
persuade that in fact their evidence cannot be safely acted
upon. [Paras 38, 39) [1063-F-H; 1064-A-H; 1065-A]
1.3. Besides PW-1, PW-4 and PW-8, who were closely
related to the three deceased, no other independent
D witness was examined although the incident occurred in
a busy market area. The place of occurrence was visited
by the sub-inspector PW-20 in the same night after the
incident. He found three two-wheelers and one Maruti car
with broken glasses. The owners of these vehicles were
E not examined. At the place of occurrence, one wrist
watch, one belcha and four pair of chappals were also
found. There was no explanation at all by the prosecution
with regard to these articles. Nothing came on record
whether four pair of chappals belonged to the accused
F party or the complainant party or some other persons and
whether 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 was not known.
Then, the mystery remained about betcha that was found
G at site. These circumstances instead of lending any
corroboration to the evidence of those three key
witnesses, rather suggested that they have not come out
with the true and complete disclosure of the incident. The
evidence of PW-1, PW-4 and PW-8 was to the effect that
H there was indiscriminate firing by the accused party at the
JALPAT RAI & ORS. v. STATE OF HARYANA
1043
complainant party. Four members of the accused party
A
- 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
B
this inconsistency is not very material). That shot did not
hit anyone. A-2 then again fired shot that hit 'Ch'. 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 'P' and PW-4. However, at the c
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 was done by High Court, that the 0
Investigating Officer was not able to recover more than
three empties because the occurrence 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.
E
[Paras 40, 41] [1065-B-H; 1066-A-C]
2. The medical evidence was clear and specific that
the three deceased received one firearm injury each. The
blackening and singeing injuries leave no manner of
doubt that shots were fired at the deceased persons from
F
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 did not indicate that. The
ballistic· report
recorded
unambiguously
and
unequivocally that the crime bullets and the cartridge G
cases 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 was licensed
pistol of A-2 and was recovered from him in dismantled
H
1044
SUPREME COURT REPORTS
(2011] 7 S.C.R.
A condition with parts separated in three pieces. The
ballistic evidence was clearly in conflict with the evidence
of PW-1, PW-4 and PW-8 and shattered their evidence
completely vis-a-vis the appellants. The testimony of PW1, PW-4 and PW-8 about the role of appellants, thus, was
B not corroborated by medical and ballistic evidence. Their
evidence also did not get support from the collateral
circumstances that came on record. [Paras 42, 43] [1066·
D-H; 1067-8]
3.1. The deposition of PW-1, PW-4 and PW-8 suffered
C from significant improvements and omissions as well.
PW-1 deposed that he did not tell the police that A-3 had
fired from his .12 bore licensed gun, A-1 had fired from
.22 rifle of A-2 and A-4 had fired from .32 licensed pistol
of A-3 but when he was confronted with portion A to A
D 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
E had told the police that A-4 had fired at A-3 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
F that statement, it was found that it was not so stated. PW·
8 deposed that he had stated before the police that the
sho\s fired by A-3 and A-1 from their guns did not hit
anyone but when confronted with that statement, it
transpired that he had not so stated. As regards arrival
G of A-5 at the place of occurrence, the evidence of PW-1
and PW-8 was 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,
H stated that A-5 descended on the scene of occurrence
JALPAT RAI & ORS. v. STATE OF HARYANA
1045
after firing had started. [Paras 44, 45) [1067-C-H; 1068-A]
A
3.2. Serious infirmities in the evidence of the eyewitnesses (PW-1, PW-4 and PW-8) indicated that their
evidence at any rate was not wholly true and it was
unsafe to act on their evidence insofar as complicity of
8
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 PW8 cogent, convincing and truthful. All in all, the evidence
of PW-1, PW-4 and PW-8 lacked in credibility and was not C
of sterling worth to prove the involvement of A-1, A-3, A4, 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 counsel for the State that there was no reliable
evidence to prove his involvement in the crime. The
appellants were entitled to benefit of doubt. [Para 46)
D
[1068-B-D]
4. Incidentally, two 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. PWE
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
F
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. [Para 47]
G
[1068-E-G]
5. A-2 was convicted by the trial court for the offence
under Section 302 IPC but the High Court altered his
conviction from Section 302 to Section 302 IPC read with
Section 149 IPC and his special leave petition (SLP)
H
1046
SUPREME COURT REPORTS
(2011] 7 S.C.R.
A against that judgment was dismissed summarily. The
dismissal of SLP summarily did not mean affirmance of
the judgment of the High Court on merits. 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
B 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. It is incorrect to state that the SLP preferred by A2 was non-est since he had a right of appeal under
c Section 2 of the Supreme Court (enlargement of criminal
appellate jurisdiction) Act, 1970 and, therefore, the order
of this Court dismissing the SLP preferred by A-2 is also·
a non-est. The case against A-2 stands on a different
footing. The ballistic evidence is conclusive against him
0 and leaves no manner of doubt about his involvement in
the crime. The judgment of the High Court as regards the
appellants is set aside. The judgment of acquittal passed
in their favour by the trial court is restored. [Paras 48-50)
[1068-H; 1069-A·F]
E
Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450:
2008 (11) SCR 499; Mahtab Singh and Anr. v. State of Uttar
Pradesh (2009) 13 SCC 670: 2009 (5) SCR 848;
Balakrushna Swain v. State of Orissa (1971) 3 SCC 192;
Balak Ram v. State of U.P. (1975) 3 SCC 219: 1975 (1) SCR
F 753; Vijaybhai Bhanabhai Patel v. Navnitbhai Nathubhai
Patel & Ors. (2004) 10 SCC 583; Darshan Singh v, State of
Punjab & Anr. (2010) 2 SCC 333: 2010 (1) SCR 642; Khima
Vikamshi and others v. State of Gujarat (2003) 9 SCC 420;
Ba/wan Singh v. State of Haryana (2005) 11 SCC 245; Brijpal
G Singh v. State of MP. (2003) 11 SCC 219; Mahendra Pratap
Singh v. State of Uttar Pradesh. (2009) 11 SCC 334: 2009
(2)'SCR 1033; UP. v. Moti Ram and others (1990) 4 SCC
389: 1990 (2) SCR 939; Deepak Kumar v. Ravi Virmani &
Anr. (2002) 2 SCC 737: 2002 (1) SCR 786; Asif Mamu v.
H State of Madhya Pradesh. (2008) 15 SCC 405; Harbans
JALPAT RAI & ORS. v. STATE OF HARYANA
1047
Singh v. State of Uttar Pradesh and others (1982) 2 SCC 101:
A
1982 (3) SCR 235; A.R. Antulay v. R.S. Nayak and another
(1988) 2 SCC 602: 1988 (1) Suppl. SCR 1; Raja Ram and
Ors. v. State of M.P. (1994) 2 SCC 568: 1994 (2) SCR 114;
Akhil Ali Jehangir Ali Sayyed v. State of Maharashtra (2003)
2 SCC 708; Shingara Singh v. State of Haryana & another
B
(2003) 12 sec 758 - referred to.
Case Law Reference:
2008 (11) SCR 499
referred to
Para 25, 29
2009 (5) SCR 848
referred to
Para 25
c
(1971) 3 sec 192
referred to
Para 28
1975 (1) SCR 753
referred to
Para 28
(2004) 1 o sec 583
referred to
Para 28
D
2010 (1) SCR 642
referred to
Para 28, 29
(2003) 9 sec 420
referred to
Para 30
(2005) 11 sec 245
referred to
Para 30
E
(2003) 11 sec 219
referred to
Para 30 ·
2009 (2) SCR 1033
referred to
Para 30
1990 (2) SCR 939
referred to
Para 30
F
2002 (1 ) SCR 786
referred to
Para 30
(2008) 15 sec 405
referred to
Para 30
1982 (3) SCR 235
referred to
Para 31
1988 (1) Suppl. SCR 1
referred to
Para 31\
G
1994 (2) SCR 114
referred to
Para 31
(2003) 2 sec 108
referred to
Para 31
c2003) 12 sec 758
referred to
Para 31
H
1048
SUPREME COURT REPORTS
[2011) 7 S.C.R.
A
CRIMINAL APP ELLA TE JURISDICTION : Criminal Appeal
No. 1736 of 2007.
From the Judgment & Order dated 20.9.2006 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
B No. 95-DBA.
WITH
Criminal Appeal No. 1306 of 2006.
Sushil Kumar, Sanjay Jain, Vinay Arora, Aditya Kumar,
C Anmol Thakral, Arun Bhardwaj, S.S. Shamshery (for Dr. Kailash
Chand) for the Appellants.
June Chaudhari, Harikesh Singh, Tarjit Singh (for Kamal
Mohan Guptaj for the Respondent.
D
The Judgment of the Court was delivered by
R.M. LODHA, J. 1. 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
E 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
F 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 A2 under Section 302 IPC and sentenced him to suffer life
G 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.1 ODO/-
with default stipulation. The trial court acquitted A-1, A-3, A-4,
H A-5 and A-6 of all the charges.
JALPAT RAI & ORS. v. STATE OF HARYANA
1049
[R.M. LODHA, J.]
2. Against the judgment of the trial court, two criminal
A
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
filed a criminal revision being Criminal Revision No. 578 of
B
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
C
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
D
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
E
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, 1970 (for
F
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
G
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
H
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SUPREME COURT REPORTS
[2011] 7 S.C.R
A 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.
B 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 gathered nearby
c 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
0
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 A1 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
E 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
F 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
treatment. PW-1 had also informed the Control Room of the
G incident.
H
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
JALPAT RAI & ORS. v. STATE OF HARYANA
1051
[R.M. LODHA, J.]
receipt of the two rukkas, Haricharan (PW-20) who was SubA
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.
B
(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
C
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
recovered one belcha, one sword, four pair of chappals, one
Maruti car, one scooter, two Hero Honda motorcycles (one of D
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
E
F
G
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SUPREME COURT REPORTS
[2011) 7 S.C.R.
A
stucked in the muscles just lateral to sixth thoracic
vertebrae of left side.
B
c
D
1.5 liter of dark clotted blood found in the mediastinal
and pleural cavity."
In the opinion of PW-5, the cause of death of Sunil was
due to sh.ock 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 71 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
E
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 71
8 inter-costal space or posterior border of axillary space.n
F
In the opinion of PW-5, the cause of de~th 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 he
G 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
H
inverted. Singeing is present.. ....... n
JALPAT RAI & ORS. v. STATE OF HARYANA
1053
[R.M. LODHA, J.]
He advised X-ray and Surgeon's opinion.
A
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
B
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.
c
"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
D
further investigation. PW-23 sought to record the statements of
PW-4 and injured Pawan but both were not fit to give
statements. Pawan succumbed to injuries on October 6, 2002
and his statement could not be recorded.
E
15. The post-mortem examination on the dead body of
r Pawan was conducted by Dr. R.K. Nandal (PW-9) on October
6, 2002. At the time of post-mortem examination, he fou.nd the
following injuries on the body of Pawan:
"1.
2.
3.
A wound on front of Abdomen stitched with 16
stitches.
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.
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.
·
F
G
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A
B
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SUPREME COURT REPORTS
[2011] 7 S.C.R.
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.
C
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
D 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
E 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
F (Kamal).
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
January 7, 2003, committed them for trial by the Court of
G Sessions, Jind.
H
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 :
JALPAT RAI & ORS. v. STATE OF HARYANA
1055
[R.M. LODHA, J.]
"That on 2.10.2002 at about 10 p.m., in the area of City
A
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 offe.nce of
rioting punishable under- Section 148 of the Indian Penal
B
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
C
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
D
if by that act, you had caused the death of said Rohtas,
E
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 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
G
IPC while the remaining accused, namely, Jalpat Rai,
Sham Sunder, Purshotam, Satish Kumar and Pawan
Kumar committed all offence punishable under Section
323 IPC read with \section 149 IPC and within the
cognizance of this court.
F
H
A
B
c
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SUPREME COURT REPORTS
(2011) 7 S.C.R.
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."
"·
D
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. lnteralia, Inquest Reports, Post-mortem Reports, Forensic Science
Laboratory Examination Reports, Site Plans [rough plan
E prepared by 10 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
F 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
G 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.
H
24. The opinion of the High Court differed with that of the
JALPAT RAI & ORS. v. STATE OF HARYANA
1057
[R.M. LODHA, J.]
·trial court. The High Court held that the evidence of PW-1, PWA
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 appellants by
8
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 C
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
D
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 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. Sushi! 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
1.
c2ooa) 10 sec 450.
2.
c2009) 13 sec e10.
E
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G
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SUPREME COURT REPORTS
[2011) 7 S.C.R.
A 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
B 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.
29. Learned senior counsel strenuously urged that the
C .