& Ors Vs. State of Haryana  INSC 1287 (10 October 1996)
Mukherjee, S.P. Kurdukar M.K. Mukherjee, J.
subject matter of challenge in this appeal is the judgment dated January 16, 1988 rendered by the Designated Court, Rohtak disposing of two cases,
being Sessions Case No. 280 of 1986 and Arms Act Case No. 281 of 1986. By the
impugned judgment the Designated Court convicted the three appellants before us
under Section 302 read with Section 34 IPC (two counts) and also convicted one
of them, namely, Raj Kumar under Sections 25 and 27 of the Arms Act, 1959 read
with Sections 6 of Terrorist and Disruptive Activities (Prevention) Act, 1985.
According to the prosecution case on March 20, 1986 at or about 6.30 P.M. the
three appellants waylaid Attar Chand and Jaggar, who were the Sarpanch and Panch
respectively of village Nigana and with whom they had previous enmity, near a
field which was at a distance of 3 Km. from the village abadi. Of the
appellants Ballu was carrying a dau, Jagdish a saria (iron rod) and Raj Kumar a
pistol. while Raj Kumar stood as if he was ready to shoot, the other two struck
Attar Chand and Jaggar with their respective weapons resulting in their
that night - at or about 8.30
P.M. - when Satram Dass
(P.W.11), brother of Attar Chand, came back home and found that the latter had
not returned home till then, he went in his search. He first went to the house
of Jaggar and learnt that he had also not come back. He then, accompanied by
one Natha Ram, went in their search and ultimately found their dead bodies
lying in the field outside the village. He returned to his village and
contacted Satram Dass Batra (P.W.9), a former M.L.A of Klanaur over telephone
and told him what he had seen. On receipt of the information, Satram Dass Batra
went to Kalanaur Police Station at 2.A.M. and lodged a report which reads as under
am a resident of Kalanaur. I am an Ex. M.L.A. Today at 1.30 in the night, I
received a telephone message from Satram Dass son of Vir Bhan Batra, resident
of Nigana, to the effect that dead bodies of Sarpanch Attar Chand son of Vir Bhan,
caste Batra, and Jaggar son of Ramji Lal, caste Harijan Chamar, residents of Nigana,
were lying at two places in the gram crop of Satram Dass near the johri of Dalip.
the dead bodies had sharp edged weapon injuries on the faces and heads and both
of them were lying in a pool of blood. Somebody had murdered them. I have come
to inform the police. Action may be taken." (c) On the basis of that
report SI Mange Ram (P.W.16) registered a case and left for the spot. Reaching
there at 3 A.M. he found the dead bodies of Attar Chand
and Jaggar and after conducting inquest proceedings sent the bodies for post
mortem examination. Near the bodies he found topa, sweater, parna, chaddar, a
blood stained saria and one shoe which would fit the right foot. He seized
those articles along with some blood stained earth found there. He also found
some foot prints at the spot and prepared their moulds.
is the further prosecution case that on April 7, 1986 appellant Jagdish approached Karam Chand
(P.W.10), Sarpanch of village Kherari, and made a confession regarding the two
murders and requested him (Karam Chand) to take him to the police station. Karam
Chand then took him to SI Mange Ram (P.W.16) who placed him under arrest. The
pajama and kurta, he was then wearing were taken possession of by SI Mange Ram
and kept them in a sealed parcel. He interrogated him and pursuant to his
statement a watch and a shoe meant for the left foot, which were concealed in
his wheat field, were recovered.
Eight days later - on April 17, 1986 to be precise - the appellant Raj Kumar
went to the house of Ainshilal (P.W.8), lambardar of village Kalanaur and made
a similar confession before him implicating himself and the other two
appellants in the above two murders and requested him to produce him before the
police. While going to the police station they mer SI Ravinder Kumar (P.W.17)
at the bus stand and Ainshailal handed over Raj Kumar to him.
While in his custody SI Ravinder Kumar (P.W17) interrogated Raj Kumar on April
19, 1986 in the presence of Narender (P.W.12) and another witness. Raj Kumar
disclosed that he had kept concealed a country made pistol of .12 bore and a
live cartridge in a pit under a kikkar trees in his fields and pursuant to his
disclosure statement a pistol (Ex. P.17) and a cartridge (Ex.P.18) were
recovered from that place. S.I. Ravinder Kumar seized those articles and put
them in a sealed parcel. After this recovery S.I. Ravinder Kumar sent a report
to the police station (Ex.PLL) and, on its basis, a separate case under the
Arms Act was registered against Raj Kumar.
continue with the prosecution story - on May 5, 1986, the appellant Ballu went
to Satram Dass Batra (P.W.9) of village and confessed of his having committed
the two murders along with the other two appellants and requested him (Sri Batra)
to produce him before the police. He acceded to this request and took Ballu to Kalanaur
police station where SI Ravinder Kumar (P.W.17) places him under arrest. On May 8, 1986 Ballu was interrogated at the police station by SI Ravinder
Kumar in the presence of Krishan Lal (P.W.13) and he disclosed that he had kept
a dau concealed in the hut of 'Sarkandas', situated in the vicinity of village Nigana.
further disclosed that he had also kept a ring wrapped in old rags in an 'alla'
of his residential house. Ballu then led the police party to the places
mentioned by him and brought out the above two articles which came to be duly
seized under panchanama.
The moulds prepared from the footprints seen at the spot, the blood stained
earth and shoe seizes therefrom, the specimen moulds of the appellants and the
shoe and the dau recovered pursuant to the statements of appellant jagdish and Ballu
respectively were sent to the Forensic Science Laboratory (F.S.L.) by the
Investigating Officer for examination by the Ballistic Expert. On receipt of
the reports of such examination and after completion of investigation S.I. Ravinder
Kumar submitted two chargesheets; one against the three appellants for
committing the murders of Attar Chand and Jaggar on march 20, 1986 in
furtherance of their common intention and another against the appellant Raj
Kumar for having been found in unlawful possession of a pistol and a cartridge
on April 19, 1986.
appellants abjured their guilt and contended that they had been falsely
implicated in the case owing to enmity. The appellant Raj Kumar's further
contention was that he did not make any statement to the police and as such the
question of recovery of pistol and cartridge at his instance did not arise.
Coming first to the charge relating to the two murders, we get from the
evidence of SI Mange Ram (P.W.16), who held inquest upon the dead bodies of
Attar Chand and Jaggar, that there were a number of injured on their persons.
Dr. D.K. Sharma (P.W.1), who held autopsy, testified that there were three
stabs wounds and one lacerated wound and four incised wounds and one penetration
wound on the persons of Attar Chand and Jaggar respectively.
he found that a number of underlying bones were fractures of both of them. He
opined that the injuries were ante-mortem and sufficient to cause death in the
ordinary course of nature. The uncontroverted evidence of these two witness
establishes that both Attar Chand and Jaggar met with homicidal death.
crucial question that now falls for our determination is whether the
prosecution had been able to conclusively prove that the three appellants were
responsible for their such death. To prove this part of its case the
prosecution relied on the ocular evidence of Hari Chand (P.W.5) and Prabhati
(P.W.7) as also circumstantial evidence. Before adverting to the circumstantial
evidence it will be pertinent to look into and evaluate the evidence of the
above two eye-witnesses.
Chand (P.W. 5), a resident of Nigana, testified that on March 20, 1986 he had
purchased standing crops of green grams from one Birju of village Nigana for
3400/- and to remove those crops from the field he took a truck and some
laborers there. After the crops were reaped and loaded in the truck, he despatched
it to Delhi. Thereafter he went to see the
standing crops of Satram Dass (P.W. 11), brother of Attar Chand. On the way
when he had reached the villa of Krishna Lal he saw five persons standing there
and they were Attar Chand and Jaggar (the two deceased) and Raj Kumar, Jagdish
and Ballu (the three appellants). Raj Kumar was holding a pistol in his hand as
if he was ready to shoot, while Jagdish and Ballu were armed with a sariya and dau
respectively. He then saw Jagdish and Ballu striking Attar Chand with their
respective weapons as a consequence whereof he fell down. Meanwhile, when Jaggar
came running, Raj Kumar caught hold if him and the other two appellants dealt
with him in a similar fashion. On seeing the assault when he (P.W. 5) raised
and alarm, Prabhati (P.W. 7) came to the spot and also saw the occurrence.
Seeing them Raj Kumar told his companions that as people were coming from the
village they should run away. The three appellants then left the place after
threatening them that if they disclosed the incident to anyone or gave evidence
against them they would also meet the fate of Attar Chand and Jaggar. Ten both
of them ran away towards their village. P.W. 5 lastly stated that he made a
statement before the police in March 21, 1986.
In cross-examination he stated that he had left for Delhi in the truck in which he had loaded
the grams and that he did not talk about the incident to anybody. He also
detailed the route of the truck to Delhi.
other eye-witness Prabhati (P.W. 7), who is also a resident of Nigana, deposed
that while in search on his missing buffalo he had reached the land of Parshottam in
the evening he saw the three appellants surrounding Attar Chand and Jaggar. Jagdish
was carrying a saria, Ballu a dau and Raj Kumar was holding a pistol in his
hand as if ready to shoot. Then he detailed the manner in which the above two
persons met with their death at the hands of the three appellants, which fits
in with the sequence of assault testified by P.W. 5. He went on to say that
before running away the spot the appellants gave out that in case they
testified against them they would meet the same fate. On hearing this he and Hari
Chand hurried back to the village.
Though, apparently there is no reason to disbelieve the above two witnesses,
more so when they corroborate each other on material particulars, closer look
into their evidence makes i t abundantly clear that they could not have been
present at the time of the alleged occurrence. As notices earlier, it is the
categorical statement of P.W. 5 that only after the truck loaded with the crops
left the field, that he proceeded towards the field of Satram Dass and saw the
incident. If this testimony of P.W. 5 is read in the context of the answer
elicited in his cross-examination that he left for Delhi in the truck in which the grains
were loaded he could not have gone towards the field of Satram Dass and, for
that matter, seen the incident. When P.W.5's presence at the spot when the
incident took place cannot be believed, the evidence of P.W. 7, who according
to P.W. 5, reached the spot on an alarm raised by him (P.W. 5) cannot be also
believed, more so when he (P.W. 7) stated that both of them proceeded towards
the village together after the incident. The sequence of events relating to
their purported arrival at the spot therefor belies their claim of their having
seen the incident. This apart, the explanation offered by them that owing to
threat meted out by the appellants they could not dare to disclose the incident
to the villagers is difficult to accept. Admittedly, both the deceased also
hailed from their village Nigana. Therefore, it was expected of P.W. 5 and 7,
if they had really seen the incident, that they would disclose to Satram Dass,
when he was frantically searching for his brother and Jaggar, at least the fact
they were murdered and their dead bodies were lying in the field - if not the
names of the murderers for fear of the appellants.
that we have found that the direct evidence relation to the murders is wholly
untrustworthy we may advert to the circumstantial evidence led by the
prosecution to prove its case. As notices earlier, according to the prosecution
case each of the three appellants made extra- judicial confession implication
himself and the other two.
prove the confession the prosecution examined Ainshilal (P.W.8), Satram Dass Batra
(P.W.9) and Karam Chand (P.W.10).
their evidence we get that on April 7, 1986 Jagdish made his confession before Karam
Chand (P.W. 10); on April 17, 1986 Raj Kumar before Ainshilal (P.W. 8; and on
May 5, 1986 Ballu before Satram Dass Batra (P.W.9). Each of these three witnesses
stated that after making the confession the concerned appellant requested him
to produce him before the police. The story of the three appellants making
confessions, which are on identical terms, before three different persons, who
live in villages far off from the villages of the respective appellants at
periodical intervals appear to is to be artificial and unnatural. If really
their conscience impelled them to make a clean breast of their guilt the
appellants themselves could have surrendered before the police instead if
taking a circuitous route of first approaching the above three witnesses for
the same purpose, more so when there is noting on record to show that they were
persons of their confidence. We are therefore of the opinion that the extrajudicial
confessions purportedly made by the three appellants which needless to say were
retracted, do not bear any scrutiny.
Against Jagdish the prosecution led evidence to prove that
to the statement made by him to the police, a shoe which fitted his left foot,
and a watch which belonged to Attar Chand were recovered from his wheat field;
shoe, which was found at the spot was of the same pair; and
moulds prepared from the foot print found at the spot fitted in with the mould
of his foot.
prove that above circumstances the prosecution relied upon the evidence of S.I.
Mange Ram (P.W. 16), who initially investigated the case and Karam Chand (P.W.
10) in whose presence the statement was made by Jagdish and the aforesaid
articles were subsequently recovered, and the reports of Forensic Science
laboratory. In our considered view the oral evidence adduced by the prosecution
if proof of the above circumstances is clearly fabricated. Is we are to believe
the evidence of P.Ws. 10 and 16 in this regard, it would mean that either Jagdish
ran away from the spot wearing only one shoe or carried the same which was of
no value, to his fields which was at a distance of 1.1/2 kilometers and kept it
concealed there for implicating himself. It will be preposterous to draw any of
such conclusions. Then again, it being the positive evidence of Satram Dass Batra
(P.W.9), who claimed to have been at the spot since 2.30 or 3.00 A.M. of that
fateful night till 3 P.M. on the next day, that thousands of people had
collected at the spot before the arrival of the police, the claim of the
Investigation Officer that foot prints of Jagdish and a shoe belonging to him
were found there is patently false. As regards the alleged recovery of the
watch of Attar Chand it may be mentioned that none of the two eye-witnesses
testified that any of the appellant snatched away his watch. While on this
point we cannot also lose sight of the fact that according to the prosecution
case motive for the murder was previous enmity and not gain.
against Ballu the circumstance alleged is that after he was taken into custody
he made a statement before the Investigating Officer on May 8, 1986 and pursuant thereto a dau and ring belonging to
Attar Chand were recovered. for the reasons given by us for disbelieving the
story of the recovery of wrist watch of Attar Chand pursuant to the statement
of Jagdish no reliance can be placed on the alleged recovery after 45 days of
the incident did not contain any human blood, it does not in any way
we have found that the prosecution had concocted evidence regarding the alleged
recoveries and pursuant to the supported statements of Jagdish and Ballu, we do
not think that we will be justified in placing any reliance to the alleged
recovery of pistol and cartridge pursuant to the statement of Raj Kumar on April 19, 1986.
For the foregoing discussion we need not go into the question whether
prosecution had succeeded in proving that the appellants had a motive to commit
the murders for proof of motive only would not lead the prosecution anywhere.
In the conviction and sentence recorded against the three appellants under
Section 302/34 IPC are set aside and they are acquitted. The appellant Raj
Kumar is also acquitted of the charge of unlawful possession of a pistol and a
cartridge. Appellant Ballu and Raj Kumar, who are on bail, are discharged from
their respective bail bonds.
Jagdish, who is on jail, be released forthwith unless wanted in connection with
any other case.