# RAJESH @ SARKARI & ANR v. STATE OF HARYANA

- **Citation:** [2020] 14 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2020-11-03
- **Case number:** Criminal Appeal No. 1648 of 2019
- **Bench:** Dr. Dhananjaya Y Chandrachud, Indu Malhotra, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajesh-sarkari-anr-v-state-of-haryana-34385
- **Pages:** 44

## Headnote

Penal Code, 1860 - s.302 r/w. s.34 - Prosecution case that
complainant's elder son was shot dead inside a University -
Complainant-PW-4 and his younger son-PW-5 stated that they had
seen the incident and they had taken victim to the hospital - Victim
was declared dead - Three accused persons including both the
appellants were apprehended and arraigned - All the three accused
persons refused to undergo Test Identification Parade and pleaded
not guilty - The Trial Court convicted all the three accused persons
for having committed murder and sentenced them to imprisonment
for life - All three accused persons filed appeals before the High
Court which was dismissed - Two accused persons filed appeal
before the Supreme Court - Held: There were clear improvements
made by PW-4 and PW-5 in their statements - PW-4 had stated he,
PW-5 along with 'one unknown person' had lifted victim from the
spot to take him to hospital - Whereas, PW-5 does not mention
presence of any third person - Further, ruqqa indicated that the
deceased was brought by one 'S' and the same is a significant
circumstance which indicates that neither PW-4 nor PW-5 were
present at the scene of offence - DW-4 and DW-5 stated that it was
them who had taken victim to the hospital and neither PW-4 nor
PW-5 were present at the scene of occurrence - Neither the author
of first and second FSL reports in the context of the seizure and
recovery of weapons W/1 and W/2 in FIR No.311; nor the author of
the third FSL report in context of FIR No.781(FIR in present case)
were examined by the prosecution in the course of the evidence -
The discrepancies which were noticed in the FSL reports in both
abovementioned FIRs could have been explained by the authors of
the FSL reports and their examination being not done would entitle
accused benefit of doubt - As far as Test Identification Parade is
concerned, there is no specific provision either in the CrPC or the
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Indian Evidence Act, 1872 which lends statutory authority to an
identification parade - The identification in the course of TIP is
intended to lend assurance to the identity of the accused - The
finding of guilt cannot be based purely on the refusal of the accused
to undergo an identification parade - In the present case, the
presence of the alleged eye-witnesses PW-4 and PW-5 at the scene
of occurrence is seriously in doubt - The ballistics evidence
connecting the empty cartridges and the bullets recovered from the
body of the deceased with an alleged weapon of offence is
contradictory and suffers from serious infirmities - Therefore, a
refusal to undergo a TIP assumes secondary importance and cannot
survive independently in the absence of it being a substantive piece
of evidence - The prosecution failed to establish its case beyond
reasonable doubt and thus, appellants are entitled to benefit of
doubt.
Allowing the appeal, the Court
HELD: 1. The presence of PW-4 and PW-5
1.1 PW4, in the course of his cross-examination, stated that
he, PW5 and "one unknown person" had lifted victim from the
spot to take him to PGIMS. On the other hand, PW5, in the course
of his deposition, does not mention the presence of any third
person who took victim with them to the hospital. While PW4
states that the police reached the hospital at 4:00pm, PW5, on
the other hand, is unaware of when the police had reached the
hospital. Now, in this background, it is important to notice that
there are clear improvements made by PW4 and PW5, which have
a bearing on whether they were eyewitnesses to the alleged
occurrence. Both PW4 and PW5 have made substantial
improvements in the course of their examination in evidence.
Both the witnesses attempted to bolster the case of the
prosecution with regard to their presence at the scene of crime
and of being eye-witnesses to the occurrence by stating that they
had removed victim to the hospital after he had been gunned
down. The absence of any reference to thei

## Text

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 [2020] 14 S.C.R. 1
1
RAJESH @ SARKARI & ANR
v.
 STATE OF HARYANA
 (Criminal Appeal No. 1648 of 2019)
NOVEMBER 03, 2020
[DR. DHANANJAYA Y CHANDRACHUD,
INDU MALHOTRA AND INDIRA BANERJEE, JJ.]
Penal Code, 1860 - s.302 r/w. s.34 - Prosecution case that
complainant's elder son was shot dead inside a University -
Complainant-PW-4 and his younger son-PW-5 stated that they had
seen the incident and they had taken victim to the hospital - Victim
was declared dead - Three accused persons including both the
appellants were apprehended and arraigned - All the three accused
persons refused to undergo Test Identification Parade and pleaded
not guilty - The Trial Court convicted all the three accused persons
for having committed murder and sentenced them to imprisonment
for life - All three accused persons filed appeals before the High
Court which was dismissed - Two accused persons filed appeal
before the Supreme Court - Held: There were clear improvements
made by PW-4 and PW-5 in their statements - PW-4 had stated he,
PW-5 along with 'one unknown person' had lifted victim from the
spot to take him to hospital - Whereas, PW-5 does not mention
presence of any third person - Further, ruqqa indicated that the
deceased was brought by one 'S' and the same is a significant
circumstance which indicates that neither PW-4 nor PW-5 were
present at the scene of offence - DW-4 and DW-5 stated that it was
them who had taken victim to the hospital and neither PW-4 nor
PW-5 were present at the scene of occurrence - Neither the author
of first and second FSL reports in the context of the seizure and
recovery of weapons W/1 and W/2 in FIR No.311; nor the author of
the third FSL report in context of FIR No.781(FIR in present case)
were examined by the prosecution in the course of the evidence -
The discrepancies which were noticed in the FSL reports in both
abovementioned FIRs could have been explained by the authors of
the FSL reports and their examination being not done would entitle
accused benefit of doubt - As far as Test Identification Parade is
concerned, there is no specific provision either in the CrPC or the
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Indian Evidence Act, 1872 which lends statutory authority to an
identification parade - The identification in the course of TIP is
intended to lend assurance to the identity of the accused - The
finding of guilt cannot be based purely on the refusal of the accused
to undergo an identification parade - In the present case, the
presence of the alleged eye-witnesses PW-4 and PW-5 at the scene
of occurrence is seriously in doubt - The ballistics evidence
connecting the empty cartridges and the bullets recovered from the
body of the deceased with an alleged weapon of offence is
contradictory and suffers from serious infirmities - Therefore, a
refusal to undergo a TIP assumes secondary importance and cannot
survive independently in the absence of it being a substantive piece
of evidence - The prosecution failed to establish its case beyond
reasonable doubt and thus, appellants are entitled to benefit of
doubt.
Allowing the appeal, the Court
HELD: 1. The presence of PW-4 and PW-5
1.1 PW4, in the course of his cross-examination, stated that
he, PW5 and "one unknown person" had lifted victim from the
spot to take him to PGIMS. On the other hand, PW5, in the course
of his deposition, does not mention the presence of any third
person who took victim with them to the hospital. While PW4
states that the police reached the hospital at 4:00pm, PW5, on
the other hand, is unaware of when the police had reached the
hospital. Now, in this background, it is important to notice that
there are clear improvements made by PW4 and PW5, which have
a bearing on whether they were eyewitnesses to the alleged
occurrence. Both PW4 and PW5 have made substantial
improvements in the course of their examination in evidence.
Both the witnesses attempted to bolster the case of the
prosecution with regard to their presence at the scene of crime
and of being eye-witnesses to the occurrence by stating that they
had removed victim to the hospital after he had been gunned
down. The absence of any reference to their taking victim to the
hospital in the FIR has a bearing on whether they were eyewitnesses to the occurrence. The incident took place at the
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University where the deceased was a student and, according to
PW4, was preparing for his supplementary law exams. The theory
that PW4 and PW5 were present at the scene of offence and had
removed the deceased to the hospital must be tested with
reference to two significant circumstances which have emerged
from the record. First, the record of the trial before the Sessions
Court, which has been produced before this Court, indicates that
the deceased was brought dead to PGIMS, Rohtak at 3:00pm.
The ruqqa was sent to the police at 3:35pm. The ruqqa indicates
that the deceased was brought by "'SL' Resident of Kailash
Colony, Rohtak". The reference to 'SL' is a significant
circumstance which indicates that neither PW4 nor PW5 were
present at the scene of offence which is why, after the incident, it
was not PW4 or PW5, but a third person who had transported the
deceased victim to the hospital. The Sessions Court while
appreciating this aspect, explained away the argument of the
defence that neither PW4 nor PW5 were present at the scene of
offence, by holding that perhaps both of them were present, but
had suffered a shock of having witnessed the murder of victim
which is why the ruqqa was signed by DW4. In arriving at this
conclusion, the Sessions Court had supplied an explanation which
does not comport with the case of the prosecution. Second, the
case of the prosecution, it must be noted, was not that victim was
taken to the hospital by two other persons who eventually were
produced by the defence in evidence as DW4 and DW5. The case
of the prosecution was that as a matter of fact PW4 and PW5 had
taken victim to PGIMS, Rohtak. As noted earlier, PW4 stated
that he, PW5 and an unknown person had done so, while PW5
stated it was only PW4 and him who had removed the injured to
hospital. The defence produced, among other witnesses, DW4
and DW5. In the course of his examination, DW4 stated that he
and DW5 had taken victim to the hospital and that PW4 and PW5
had arrived at the hospital after they reached there. DW4 stated
that he and DW5 removed victim to PGIMS, Rohtak and it was
about 10 to 15 minutes after their arrival at the hospital that PW4
and other relatives reached the hospital. Though the ruqqa
mentioned the name of the person who brought the deceased to
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PGIMS as 'SL', resident of Kailash Colony Rohtak, the name of
the person is evidently incorrect since it is 'P'(DW4) who is the
resident of Kailash Colony, Rohtak. DW4 and DW5 stated that it
was them who had taken victim to the hospital and neither PW4
nor PW5 were present at the scene of the occurrence.
[Para 17][24-E-H; 25-A-H]
2. FSL Reports
2.1 There are two FSL reports pertaining to FIR No. 311
and The third FSL report is with reference to a forwarding memo
of the Deputy Superintendent of Police (HO Rohtak) dated 31
December 2006 regarding five sealed parcels in connection with
FIR No. 781. [Para 21][27-F; 30-E-F]
2.2 In evaluating the third FSL report, three crucial aspects
need to be flagged at this stage: first, the FSL report contains a
comparison and analysis of what is described in the result as a
"country made pistol marked W/2 chambered for 7.62mm
cartridges"; second, the FSL report contains no reference to the
pistol which was marked as W/1 in the second FSL report dated
25 September 2007 in reference to FIR No. 311 and third, the
above extract under the result section indicates that pistol W/2
(which is the only pistol analysed) was recovered from 'R' in the
course of the investigation in FIR No. 311. The above aspects
have a crucial bearing on the weight to be ascribed to the third
FSL report. [Para 22][32-E-G]
2.3 The three aspects highlighted demonstrate that, out of
the alleged two recoveries of the pistols which were marked as
W/1 and W/2 in the course of the investigation into FIR No. 311,
only one of the two pistols, namely W/2, has been analysed with
reference to the cartridges and fired bullets stated to have been
recovered from the scene of offence in the present case. Pistol
W/1, as the second FSL report dated 25 September 2007 in
relation to FIR No. 311 indicates, was alleged by the prosecution
to have been recovered at the behest of accused 'R' while pistol
W/2 was allegedly recovered from accused 'A'. The third FSL
report in the present case contains a ballistics analysis of only
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one of the two pistols namely W/2 and not W/1. Moreover, the
third FSL report contains an erroneous statement that W/2 was
recovered at the behest of 'R' when, as this Court has seen, W/
2 is a recovery which the prosecution alleges to have been made
from accused 'A' in the course of the investigation in the FIR
No. 311. Pistol W/1 was, in other words, clearly not made available
to the examiner for the purpose of a ballistic examination.
[Para 23][32-G-H; 33-A-C]
2.4 Now in this background an important facet of the matter
which requires to be noticed was that neither the author of the
first and second FSL reports in the context of the seizure and
recovery of weapons W/1 and W/2 in FIR No. 311; nor the author
of the third FSL report in the context of FIR No.781 (the FIR in
the 33 present case) have been examined by the prosecution in
the course of the evidence. [Para 26][33-F-G]
2.5 There is no inflexible rule which requires the
prosecution to examine a ballistics examiner in every case where
a murder is alleged to have been caused with the use of a fire
arm. The decision in Mohinder Singh (1953) has since been
explained in Gurucharan Singh (1963) by a co-ordinate Bench.
Thereafter, the principle which has emerged from the line of
authority which we have noticed earlier, is that the failure of the
prosecution in a given case, to examine a ballistics expert has to
be assessed bearing in mind the overall context of the nature of
the evidence which is available. When direct evidence of an
unimpeachable character is available and the nature of injuries is
consistent with the direct evidence, the examination of a ballistics
expert need not be insisted upon as a condition to the prosecution
proving its case. On the other hand, where direct evidence is not
available or there is doubt in regard to the nature of that evidence,
the failure to examine the ballistic examiner would assume
significance. In the present case, the weapons of offence were
alleged to have been recovered in the context of the investigation
in another FIR (FIR No.311 dated 19 May 2006). The weapons
were marked as W/1 and W/2 in that case. The third FSL report
arising out of the investigation in FIR No. 781 in the present
case does not deal with weapon W/1 at all. Moreover, as we have
noted earlier, the third FSL report wrongly attributes weapon
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W/2 to accused 'R'. Whether or not weapon W/2 had been made
available to the ballistics examiner was a matter which could have
been explained if the prosecution were to lead his evidence. The
prosecution cited a ballistics examiner as a witness and yet, did
not lead his evidence. This must be juxtaposed in light of the fact
that the eye-witness account of PW4 and PW5 is not free from
doubt. This Court has also analysed the evidence of PW4 and
PW5 and have noted that there is a grave element of doubt as to
whether they were witnesses at the scene of occurrence. In this
context, the Court must therefore hold that the discrepancies
which have been noticed in the FSL report could have best been
explained by the authors of FSL reports both in FIR No. 311/
2006 and FIR No. 781/2006. This not having been done, the
accused would, in our view, be entitled to the benefit of doubt.
[Para 34][38-H; 39-A-G]
3. Refusal to undergo Test Identification Parade
3.1 The State has sought to urge that out of all the three
publications which were proved in the course of the evidence,
only one contained the names of the accused. However, the central
point in this case is whether on the basis of significant aspects
which have emerged during the course of cross-examination of
PW4 and PW5, an adverse inference should be drawn against the
appellants for having refused to undergo a TIP. The evidence on
the record indicates that not only did the deceased have several
criminal cases against him, some of which had ended in acquittal
on account of a compromise, but that one of the appellants, 'R',
and the deceased were co-accused in a case arising out of FIR
No. 341 dated 23 June 45 2001 under Sections 454 and 380 of
the IPC. Evidently both of them had been arrested in connection
with the case, which is why PW5 deposed that his father PW4
used to go to court when victim and 'R' were being produced on
various dates of hearing. PW4 also stated that he has stood surety
for his son in various criminal cases. In this backdrop, the
contention of the appellants that the refusal to undergo a TIP is
borne out by the fact that victim and 'R' were known to each
other prior to the occurrence and that PW4, who is a prime eye-
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witness, had seen 'R' when he would attend the court during the
course of the hearings, cannot be brushed aside. Consequently,
in a case, such as the present, the Court would be circumspect
about drawing an adverse inference from the facts, as they have
emerged. In any event, the identification in the course of a TIP is
intended to lend assurance to the identity of the accused. The
finding of guilt cannot be based purely on the refusal of the
accused to undergo an identification parade. In the present case,
the presence of the alleged eyewitnesses PW4 and PW5 at the
scene of the occurrence is seriously in doubt. The ballistics
evidence connecting the empty cartridges and the bullets
recovered from the body of the deceased with an alleged weapon
of offence is contradictory and suffers from serious infirmities.
Hence, in this backdrop, a refusal to undergo a TIP assumes
secondary importance, if at all, and cannot survive independently
in the absence of it being a substantive piece of evidence. [Para
39][43-B-H; 44-A]
Mohinder Singh vs. State, AIR 1953 SC 415; Sukhwant
Singh vs. State of Punjab, (1995) 3 SCC 367 : [1995] 2
SCR 1190; State of Punjab vs. Jugraj Singh, (2002) 3
SCC 234 : [2002] 1 SCR 998; Vineet Kumar Chauhan
vs. State of UP, (2007) 14 SCC 660 : [2007] 13 SCR
727; Govindaraju vs. State, (2012) 4 SCC 722: [2012]
5 SCR 67 - relied on.
State of Rajasthan v. Daud Khan, (2016) 2 SCC 607 :
[2015] 13 SCR 1131; Mohan Suingh vs. State of M.P.
(1999) 2 SCC 428 : [1999] 1 SCR 276; Gurucharan
Singh vs. State of Punjab, [1963] 3 SCR 585; Matru v.
State of U.P. (1971) 2 SCC 75 : 1971 SCC (Cri) 391] :
[1971] 3 SCR 914; Santokh Singh v. Izhar Hussain
(1973) 2 SCC 406 : 1973 SCC (Cri) 828; Malkhansingh
v. State of M.P. (2003) 5 SCC 746:2003 SCC (Cri)
1247; Visveswaran v. State (2003) 6 SCC 73; Munshi
Singh Gautam v. State of M.P. (2005) 9 SCC 631;
Sidhartha Vashisht@ Manu Sharma v. State (NCT of
Delhi) (2010) 6 SCC 1; Ashwani Kumar and Ors. v.
RAJESH @ SARKARI & ANR v. STATE OF HARYANA
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State of Punjab (2015) 6 SCC 308; Mukesh and Ors.
v. State for NCT of Delhi and Ors. AIR 2017 SC 2161
- referred to.
Case Law Reference
[2015] 13 SCR 1131
referred to
Para 8
[1999] 1 SCR 276
referred to
Para 11
[1963] 3 SCR 585
referred to
Para 29
[1995] 2 SCR 1190
relied on
Para 30
[2002] 1 SCR 998
relied on
Para 31
[2007] 13 SCR 727
relied on
Para 32
[2012] 5 SCR 67
relied on
Para 33
[1971] 3 SCR 914
referred to
Para 37
(1973) 2 SCC 406
referred to
Para 37
(2003) 5 SCC 746
referred to
Para 37
(2003) 6 SCC 73
referred to
Para 37
(2005) 9 SCC 631
referred to
Para 37
(2010) 6 SCC 1
referred to
Para 37
(2015) 6 SCC 308
referred to
Para 37
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1648 of 2019
From the Judgment and Order dated 17.01.2019 of the High Court
of Punjab and Haryana at Chandigarh in CRA-D No. 634-DB of 2012
(O&M)
Deepak Thukral, DAG, Rakesh Khanna, Sr. Adv., Anil Hooda,
Ravinder Hooda, Jitendra Hooda, Ajay Sharma, Ms. Apsana Khatoon,
Pramod Kumar, Yadav Narender Singh, and Dr. Monika Gusain, Advs.
for the appearing parties.
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The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. The appellants Rajesh alias Sarkari and Ajay Hooda have been
convicted, together with a co-accused1 for an offence under Section
302 read with Section 34 of the India Penal Code2 and have been
sentenced to imprisonment for life.
2. On 26 December 2006, a ruqqa3 was received at the Police
Post, PGIMS, Rohtak about Sandeep Hooda, son of Azad Singh Hooda,
having been brought dead there. ASI, Meha Singh met Azad Singh, the
complainant, at the emergency ward in PGIMS, Rohtak. Azad Singh
made a statement which was reduced into writing upon which a First
Information Report4 being FIR No.781 was registered under Section
154 of the Criminal Procedure Code5 at Police Station Sadar, Rohtak.
The complainant stated that his elder son Sandeep was studying in the
final year of the LLB degree course in Maharishi Dayanand University,
Rohtak6. On 26 December 2006, Sandeep had gone to the law
department in the University to prepare for the exams. The complainant's
son-in- law had come to their house and was in a hurry to leave after
meeting Sandeep. They tried to contact Sandeep on his cell phone but
were unable to get through. The complainant and his younger son, Sunil,
then proceeded on their motor-cycle to the University. At about 2:30pm
when they reached the parking in proximity to the law department, they
saw that 6 men standing under the tin sheds started firing shots at Sandeep
who was standing there. Sandeep was alleged to have fallen down upon
which the complainant and his son, Sunil, rushed towards the spot. The
three young men fled towards the Delhi road on a silver coloured Pulsar
make motor-cycle. The complainant stated that he had not noted the
registration number of the motor-cycle but could identify the assailants,
if they were brought before him. The complainant alleged that blood
was oozing out from the right foot, abdomen, arm, left temple and thigh
of Sandeep. The complainant also stated that Sandeep was taken to
PGIMS, Rohtak by Parveen, son of Zile Singh Hooda, and "another
person" in a Santro car belonging to Sandeep. However, he succumbed
to the fire arm injuries before reaching the hospital. The complainant,
1 Pehlad Singh alias Harpal
2 IPC
3 written intimation
4 FIR
5 CrPC
6 University
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Azad Singh, stated that his son had strained relations with some persons
and those persons had killed him.
3. As a result of the investigation, initially, accused Rajesh alias
Sarkari and Ajay Hooda were apprehended and arraigned. Subsequently,
accused Pehlad, was also arraigned to face trial. The offence under
Section 302 being triable exclusively by the Court of Sessions, the two
appellants were committed for trial to the Sessions Judge, Rohtak by the
Chief Judicial Magistrate, pursuant to an order dated 25 September 2007.
Subsequently, on the basis of the supplementary charge-sheet presented
against accused Pehlad, he was also committed to the Court of Sessions
Judge by the JMFC on 31 March 2008. The trials against all the three
accused were consolidated by an order dated 12 April 2008. Charges
were framed on 8 May 2008. All the accused pleaded that they were
not guilty. The prosecution examined 24 witnesses at the trial, as noted
by the judgment of the Sessions Court:
"9. The prosecution ... examined as many as twenty four
witnesses namely HC Karan Singh as PW1, Ram Singh as
PW2, Ajit Singh as PW3, Azad Singh as PW4, Sunil as
PW5, SI Wazir Singh as PW6, SI Jagram as PW7, HC Sat
Narain as PW8, Constable Sumit Kumar as PW9, SI
Mahender Singh as PW10, ASI Dharambir as PW11,
Constable Rajiv Godara as PW12, HC Vijay Pal as PW13,
Dr. Sushma jain as PW14, retired Inspector Ram Mehar
Singh as PW15, Ex. Head Constable Ranbir Singh as PW16,
Constable Jitender Kumar as PW17, Inspector/SHO
Rajender Singh as PW18, SI Ram Kishan as PW19, HC
Jai Kishan as PW20, retired SI Maha Singh as PW21, retired
ASI Balwan Singh as PW22, SI Banarsi Dass as PW23
and EHC Ram Chander as PW24. Learned Public
Prosecutor for the State also tendered reports of FSL
Exhibits PD to PF in evidence. Thereafter, he closed the
evidence of the prosecution."
The reports of the Forensic Science Laboratory were marked as
Exhibit PD-PF in evidence. The accused were examined after the
conclusion of the evidence of the prosecution under Section 313 of the
CrPC to explain the circumstances which appeared against them in the
evidence of the prosecution. They claimed innocence and stated that
they have been falsely implicated. One of the appellants, Rajesh alias
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Sarkari, stated that the victim was implicated with him as a co-accused
in another case; that there was no dispute between them and that his
photographs have been published in the newspaper. The accused
examined 5 witnesses in support of their defence as noted by the judgment
of the Sessions Court:
"11. ...the accused have examined as many as five
witnesses namely Jiley Singh as DW1, Rajesh Jogpal,
Record Keeper as DW2, Shamsher Singh as DW3, Parveen
as DW4 and Sikander as DW5, in their defence evidence."
4. During the course of the trial, PW1, Head Constable Karan
Singh, deposed that on 26 December 2006, he had joined the investigation
of the case and together with ASI, Meha Singh and others, had reached
the scene of offence at the University. He recovered seven empty
cartridges, one lead and blood-stained earth which were packed into a
parcel and sealed. Among the other recoveries, was a liquor bottle with
some quantity of liquor. The principal eye witnesses whose evidence
was relied upon by the prosecution were the complainant (PW4- Azad
Singh) and his son (PW5-Sunil). PW4 stated that on 26 December 2006,
he and PW5 had proceeded to the University where Sandeep had gone
to prepare for his examinations, as Sandeep could not be contacted on
his telephone. At 2:30 pm when they reached near the cycle-stand of
the law department, they saw the car belonging to Sandeep parked there.
Sandeep was standing under the cycle shed together with three persons.
When PW4 and PW5 were at a distance of about 100 feet from Sandeep,
they saw him being fired at with pistols or revolvers. PW4 identified the
appellants in Court as the assailants at the scene of offence. All the
three accused are stated to have departed from the scene after executing
the crime. PW4, in the course of his evidence, stated that thereafter, he
and PW5 took Sandeep to the Casualty Department of PGIMS, Rohtak
in the Santro car, where he was declared to be brought dead. The police
were stated to have reached the hospital and to have recorded his
statement as Exhibit PB. The deposition of PW5 was in similar terms.
Significantly, both PW4 and PW5 stated that they had removed Sandeep
in his car to PGIMS, Rohtak which was at variance with the FIR which
recorded that Sandeep had been removed to the hospital by "Parveen,
son of Zile Singh Hooda, and by another person". PW7- Jagram, SubInspector, deposed that ASI Meha Singh had deposited two sealed parcels,
one containing blood-stained earth and the other containing 7 empty
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cartridges as well as one lead with him, which he subsequently forwarded
to the FSL, Madhuban on 8 January 2007. PW9- Sumit Kumar, Constable,
prepared a scaled site-plan marked as Exhibit PJ. PW10- Mahender
Singh, SI, PW11- Dharambir, ASI, SIT Crime Branch, Rohini, PW12Constable Rajeev Godara, DRK, SIT Crime Branch, Rohini, deposed to
the disclosure statements of the accused, marked as Exhibits PQ and
PR. The post mortem was conducted by PW14, Dr Sushma Jain, and
was marked as Exhibit PS and PT. The post mortem report indicates the
presence of 13 injuries which are described as follows:
"Injuries:
1. Entry wound: A wound of entry of size 1.5 cm, 0.5 cm with
inverted margin was present on right occipital region of scalp
situated 1 cm posterior to right external auditory meatus.
Blackening, charring ecchymosed was present around the wound.
Track- Bullet was piercing through all layers of scalp causing
fracture of right occipital bone and passing through and through
the brain matter causing laceration of brain matter and then causing
communities fracture of petrous bone of left temporal bone and
reaching just medial to left external auditory meatus. Bullet
recovered just medial to left external auditory meatus. Track going
downward medially and reaching on left side just medial to left
external auditory meatus.
Injury No.2:
An entry wound 0.5 cm x 0.5 cm size was situated on the lateral
border of lower part of right arm 3 cm above the lateral epicondyle
of right forearm margins inverted and ecchymosed. Track going
upward and medially piercing skin soft issue and muscles going
just above the right humerus bone reaching upto a point situated 3
cm above the medial epicondyle of right forearm on the medial
aspect of middle 1/3rd of right arm. Bullet was situated just beneath
the skin at the point where the track was ending.
Injuries No.3 and 4.
3. An entry wound 1 cm x 0.5 cm was situated just above the left
elbow joint on the anterior aspect of left arm 4 cm lateral to the
medial epncondyle (left) margins inverted and ecchymosed.
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Track:
Track was going medially and slightly downward only skin and
entanous tissue deep.
4. Exit wound 0.5 cm x 0.5 cm size wound with everted margins
was situated on the medial aspect of lower 1/3rd of left arm and
was 3.5 cm above the medial epicondyle (left).
Injury No.5:
An entry wound of size 1 cm x 0.5 cm with inverted + and
ecchymosed margins and was situated on the medial aspect of
middle 1/3rd of left forearm 13.5 cm below the medial epicondyle
(left). Blackening of skin was present around the wound. Track
was going downward and posterior-laterally piercing the skin, soft
tissue and muscles and reaching just beneath the skin on posterior
lateral aspect of left forearm 12 cm above the wrist joint and 2.5
cm medial and posterior to lateral border of left forearm and bullet
was recovered from the end point of track just beneath the skin.
Injury No.6 and 7.
6. An entry wound was situated 33 cm from lateral end of right
patellaon lateral aspect of upper 1/3rd of right thigh 1.5 cm x 0.5
cm size blackening, charring and echymosis was present at the
margins. Margins inverted.
Track:
Track was passing through skin and subcutaneous tissue and was
going upward and medially.
7. Exit wound: exit wound of size 2 cm x 0.5 cm with everted
margins was situated 12 cm below the anterior aspect of upper 1
/3rd of right thigh and was 6.5 cm above the entry wound.
Injury No.8 and 9:
8. An entry wound of size 1.5 cm x 0.5 cm was situated 10 cm
inferio lateral to anterior superior iliac spine (left) ecchymosis was
present around the wound.
Track:
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Track was going downward and medially piercing skin,
subcutaneous tissues, muscles and was causing fracture of femur
(left) and reaching up to the exit wound.
9. Exit wound of size 0.5 cm x 0.5 cm was situated 32 cm above
the medial side of left patella. Margins were everted.
Injury No.10 & 11:
10. A wound of entry 1.5 cm x 0.5 cm size was situated 10.5 cm
above the right anterior superior iliac spine on the anterior
abdominal wall. Margins were inverted. Blackening and charring
was present at margins.
Track:
Track was going backward towards the left side piercing skin
subcutaneous tissues abdominal muscles and was causing injury
of small and large gut and reaching up the exit wound on the
back.
11. Exit wound of size 0.5 cm x 0.5 cm with everted margin was
situated 9 cm above the anterior superior iliac spine and 5 cm
lateral to midline on left side of back.
Injury No.12 and 13:
12. An entry wound of size 2 cm x 1.5 cm with inverted margins
was situated 6 cm superior medial to right anterior superior iliac
spine and was surrounded by 0.3 cm to 0.5 cm size collar of
abrasion all around the wound. Track was going upward and
towards left side and was piercing skin subcutaneous tissue
muscles and causing injury of small and large gut.
13. Exit wound: 0.5 cm x 0.5 cm size exit wound with everted
margin was situated just below the left costal 2 cm lateral to the
line of nipple.
Heart right side contained blood. Stomach contained semi digested
food. Rest of the organs were normal."
Both PW10-Mahender Singh, SI and PW15-Ram Mehar Singh,
retired Inspector, stated that upon arrest, the appellants had refused to
undergo a test identification parade. In pursuance of the disclosure made
by the accused Rajesh alias Sarkari, the Pulsar motor-cycle bearing
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registration No. HR-10-H/2241 was recovered from his residence on
24 June 2007 in Sector IV Bhiwari, Rajasthan. PW19-Ram Kishan, SI,
in the course of his deposition, stated that a pistol had been recovered
from the rented house of accused Rajesh alias Sarkari at Palam Vihar,
Gurgaon. PW19 also deposed to the recovery of a pistol from the rented
house of accused Ajay Hooda at village Carterpuri, Gurgaon. The
recovery of the fire arm at the behest of the accused was sought to be
corroborated by the evidence of PW20-Head Constable Jai Kishan and
PW21- Meha Singh. PW21- Meha Singh, a former Sub-Inspector, had
received the ruqqa on 26 December 2006 from PGIMS, Rohtak. PW21
was a part of the police team which had reached the scene of offence
and had lifted seven empty cartridges and one lead from the spot.
5. The FSL report dated 29 November 2007, marked as Exhibit
PD, stated that seven 7.62mm mauser pistol fired cartridges and one
7.62mm mauser pistol fired bullet had been recovered from the place of
occurrence; and two 7.62mm deformed and mutilated fired bullets had
been recovered from the body of the deceased who had been fired at
from a country made pistol. The pistol had been received in an earlier
FIR, being FIR No. 311 at Police Station, Civil Lines, Rohtak and was
stated to have been recovered from accused Rajesh alias Sarkari.
6. Five defence witnesses, during the course of their deposition,
stated:
(i)
DW1- Zile Singh denied that he had let-out his house to
ccused Ajay Hooda and stated that the police had not visited
the house in connection with any recovery. The witness
stated that he had seen the accused Ajay Hooda for the
first time in Court;
(ii)
DW2- Rajesh Jogpal, Record Keeper stated that accused
Rajesh and the deceased Sandeep had faced trial in a case
arising out of the FIR No. 341 dated 23 June 2001 registered
at Police Station, Civil Lines, Rohtak under Sections 454/
380 of the IPC. The case had been decided on 20 September
2008. Azad Singh, the complainant/PW4 had stood surety
for Sandeep in the said case;
(iii)
DW3- Shamsher Singh, Executive Officer, Hari Bhumi
Newspaper, Rohtak stated that three news items regarding
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the incident were published in the newspaper on 23
February 2007, 13 April 2007 and 1 July 2007;
(iv)
DW4- Parveen, s/o Zile Singh, deposed that on the date of
the occurrence he, together with Sikandar (DW5), was
present along with Sandeep at the cycle-stand of the law
department at the University. Sandeep was consuming
alcohol while sitting in his car and after some time parked
his car inside the shed and sat down on the ground where
he continued to drink. After sometime, 5-6 persons came
there on two motor-cycles and fired indiscriminately upon
Sandeep. Sandeep fell down in an injured condition and was
removed by DW4 and DW5 to PGIMS, Rohtak where he
was declared dead by the doctors on duty. DW4 stated
that the father and other relatives of Sandeep reached the
mortuary about 10 to 15 minutes after their arrival. The
police came there and recorded his statement. DW4 stated
that the father of the deceased (PW4) was not present at
the scene of the occurrence and the accused presented in
the Court were not the assailants who had fired shots at
Sandeep; and
(v)
DW5- Sikandar, s/o Ashok Rathi, deposed along similar lines
to DW4 and stated that he and DW4 had taken Sandeep to
PGIMS, Rohtak and had informed the father and brother
of Sandeep of the occurrence, who had accordingly reached
PGIMS, Rohtak.
The FSL Reports, Exhibit DY, DY/1 and DY/2 were also tendered
in the course of the defence evidence.
7. The Sessions Court, by its judgment dated 12 June 2012,
concluded that there was a ring of truth to the case of the prosecution
and that the appellants were guilty of the offence of having committed
the murder of Sandeep. The appellants and the co-accused Pehlad were,
following their conviction under Section 302 read with Section 34 of the
IPC, sentenced to imprisonment for life. Aggrieved by the judgment of
the Sessions Court, all the three accused filed appeals in the High Court
of Punjab and Haryana. By a judgment dated 17 January 2019, the High
Court dismissed the appeals.
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8. Leading the submission on behalf of the appellants, Mr Rakesh
Khanna, learned Senior Counsel urged the following submissions:
A. PW4 and PW5 are not eye-witnesses
(i)
PW4 and PW5 were not present at the scene of the offence
and their depositions stating that they were eye-witnesses
to the occurrence are untrustworthy;
(ii)
The FIR which was lodged in close proximity to the
occurrence of the crime on the statement of PW4 clearly
states that Sandeep was removed to the hospital by Parveen,
son of Zile Singh Hooda, and another person. In the
depositions of PW4 and PW5, there is a marked
improvement when they stated that both of them have
accompanied the deceased who was in an injured condition
to PGIMS, Rohtak;
(iii)
Parveen, son of Zile Singh Hooda, deposed as DW4 and
confirmed that it was he and Sikandar (DW5) who had
taken Sandeep to the hospital. Both DW4 and DW5 stated
that PW4 and other relatives of the deceased reached the
mortuary after 10 to 15 minutes and neither PW4 nor PW5
were present at the scene of offence;
(iv)
The information(ruqqa) sent by the Causalty Medical
Officer on 26 December 2006 records that the deceased
Sandeep was brought to PGIMS, Rohtak by "Sandeep Lehri,
son of Zile Singh Hooda resident of Kailash Colony, Rohtak".
The name 'Sandeep' Lehri is an inadvertent error in place
of 'Parveen' who is also described as the son of Zile Singh
Hooda, resident of Kailash Colony, Rohtak;
(v)
The post-mortem report and the statement of PW14
indicates that injury nos. 1, 5, 6, 10 and 11 showed
blackening, charring and ecchymosis at the margins. PW4
in his deposition has stated that the accused fired at Sandeep
from a distance of 4-5 feet. However, as explained in the
decision of this Court in State of Rajasthan v. Daud Khan7,
blackening of injuries can only be observed if the pistol is
fired from a very close range, i.e., 2 feet or less. This
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indicates that PW4 and PW5 were not present at the site;
and
(vi)
On the above grounds, it has been submitted that neither
PW4 nor PW5 are eye-witnesses to the occurrence.
B The Forensic Science Laboratory8 report
(i)
There are three FSL reports on the record - two relate to
FIR No. 311 of 2006 and one pertaining to the present case
which arises out of FIR No. 781 of 2006;
(ii)
The first FSL report dated 12 March 2007 pertains to FIR
No. 311 where three parcels containing the clothes of injured
persons, one 7.65mm fired bullet taken from the body of an
injured person by the name of Kuldeep, four 7.65 mm fired
pistol cartridge cases and one 7.65mm live pistol cartridge
were collected from the place of occurrence. After the FSL
report was prepared, the samples were resealed with the
seal of L.S.Y (BALL) FSL (H);
(iii)
The second FSL report is dated 25 September 2007 in FIR
No. 311. In the description of parcels and the condition of
seals, it has been stated that four parcels were received:
two with the seal of R.K. and two with the seal of L.S.Y
SOS (Ball) FSL (H). The first parcel contained a pistol
chambered for 7.65mm cartridges along with the magazine,
one 7.65mm fired cartridge case and one 7.65mm live
cartridge stated to have been recovered from the accused
Rajesh. The pistol was marked W/1 and the cartridge case
was marked C/5. The second parcel contained one pistol
chambered for 7.62mm/0.30" cartridges along with
magazine and one 7.62mm misfired cartridge stated to have
been recovered from accused Ajay. The pistol was marked
W/2 and the misfired cartridge as MC/1. The third parcel
with the seal of L.S.Y SOS (Ball) FSL (H) contained one
7.65 mm fired bullet already marked as BC/1 in the earlier
first FSL report dated 12 March 2007. The fourth parcel
had a number and seal impression L.S.Y SOS (Ball) FLS
(H) and contained four 7.65mm fired cartridge cases and
one 7.65mm live cartridge (the fired cartridge cases were
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already marked as C/1 to C/4 in the earlier first FSL report
dated 12 March 2007);
(iv)
In the laboratory examination, it was stated that both the
pistols were test fired and that their firing mechanisms were
found in working order. The class as well as individual
characteristic marks present on the 7.65mm fired cartridge
cases C/1 to C/5, 7.62mm / 0.30" misfired cartridge marked
MC/1, 7.65mm fired bullet BC/1 and those on the test fired
cartridge cases and bullets fired from pistols marked W/1
and W/2 were examined. In the result, it was stated that
pistols W/1 and W/2 were in working order. The 7.65mm
cartridge case marked C/5 was found fired from pistol W/
2. However, the 7.65mm fired cases C/1 to C/4 and 7.65mm
fired bullet marked BC/1 were not fired from the pistol
marked as W/1. In so far as the 7.62mm misfired cartridge
MC/1 is concerned, it was found to be misfired from pistol
W/2. All the exhibits were resealed along with their original
wrappers with the seal of L.S.Y SSO (Ball) FSL (H). One
7.65mm cartridge received in parcel No. 4 has been used
in test firing in the laboratory; and
(v)
The third FSL report dated 29 November 2007 pertains to
FIR No. 781 lodged in the present case. In the description
of articles, five parcels were stated to have been received
on 8 January 2007. According to the submission, the receipt
or description of parcels sealed by the ballistic expert is not
mentioned, as per his report dated 25 September 2007. The
first parcel inter alia contained blood stained earth, lifted
from the place of occurrence and sent for serological
examination.