& Ors Vs. State of Haryana  INSC 228 (24 February 1997)
MUKHERJEE, S.P. KURDUKAR S.P.KURDUKAR,
six appellants alongwith five other accused persons (since acquitted) were put
up for trial before the Addl.
Judge, Gurgaon for offences punishable under Sections 148, 302/179, 323/149 and
120-B of the Indian Penal Code for conspiracy, rioting, committing the murders
of Chao Khan and Baddal and causing injuries to Isrile (PW 11). The learned
trial judge by his judgment and order dated 29th January, 1993 acquitted all
the accused persons of the offence punishable under Section 120-B of the Indian
Penal Code, but, convicted Anwar (A-1), Dalmar (A-2), Idu (A-5), Udai Singh
(A-6), Sattar (A-7), Gaffer (A-8) and Rashid (A- 9) for offences punishable
under Sections 302/149 of the Indian Penal Code and sentenced each one of them
to undergo imprisonment for life and to pay a fine of Rs. 500/- each;
default of payment of fine to undergo further RI for five months. They were
also convicted under Sections 148 and 323 read with Section 149 of the Indian
Penal Code and each one of them was sentenced to suffer RI for six months. The
substantive sentences were ordered to run concurrently. Jai Singh (A-11) came
to be acquitted of all the charges. The seven convicts preferred an appeal to
the Punjab & Haryana High Court at Chandigarh and the learned Division Bench Vide its judgment and order dated November 22, 1993 upheld the convictions and
sentences of the appellants but, acquitted Gaffar (A-8) of all the charges.
Aggrieved by the judgment and order passed by the High Court, the appellants,
after obtaining Special Leave, have filed this appeal in this Court.
prosecution story as disclosed at the trial is as under :- Chao Khan and Baddal
(the two deceased) were residents of village Siraswal and owned agricultural
land in the said Village. A-1 and A-2 also owned agricultural land in the
adjoining village called Luhinga Khurd. There was a long drawn enmity between
the deceased and the accused. Asru, brother of A-1 and A-2, was killed about
eight months prior to the incident in question which took place on 5th January,
1990, Chao Khan and Baddal alongwith their other brothers were charge sheeted
for committing the murder of Asru and at the relevant time, trial was pending
before the Sessions Court., We are now informed that Jharmal, Abdul and Risal
have been convicted for committing the murder of Asru. Trial against Chao Khan
and Baddal (since deceased) abated.
is further alleged by the prosecution that Chao Khan and Baddal were also
facing criminal trial under Section 25 of the arms Act which was then pending
before the Judicial Magistrate Ist Class, Ferozepur Jhirka. The Judicial
Magistrate Ist Class, Ferozepur Jhirka had fixed the case on 5th January, 1990
for trial and in that connection, both Chao Khan and Baddal alongwith Saheed
son of Baddal, Rial and Isrile (PW 11) were going to the said court for
attending the criminal proceedings, At about 7.00 a.m. on 5th January, 1990,
they left their village in a four wheeler and got down at the bye-pass of Ferozepur
Jhirka at about 9.30 a.m. When they were proceeding towards the court and
reached near the bus stand of Ferozepur Jhirka, A-1 to A-4 and A-10, who where
armed with country made pistols, encircled them and in the meantime A-5, A-6,
A-7, A-8 and A- 9 who were armed with lathis came running at the place of
occurrence by the side of the bus stand. A-1 then fired from his pistol hitting
Chao Khan on the head whereas A-2 fired from his pistol at Baddal. Both Chao
Khan and Baddal sustained fire arm injuries on their heads and as a result
thereof they fell down. The other accused persons thereafter started hitting
both the injured with the lathis. When Isrile (PW 11) tried to intervene, A-8
and A-9 gave him lathi blows causing bleeding injuries to him. A-3, A-4 and
A-10 who were having pistols then fired in the air. All the accused thereafter
fled away but while doing so, A-1 had left his pistol behind at the place of
incident. Chao Khan and Baddal died on the spot. Risal and Isrile (PW 11) were
made to wait near the dead bodies whereas Saheed (PW 10) proceeded towards
police station at Ferozepur Jhirka to lodge the complaint. When he reached near
Lal Kuan Chowk, he met SI Dharam Singh to whom he narrated the incident who
recorded the complaint in writing and forwarded the same with his endorsement
to the police station at Ferozepur Jhirka, On the basis of this report, the
First Information Report came to be recorded. SI Dharam Singh (PW 14) reached
the place of occurrence and started the investigation. After holding the
inquest on the dead bodies. he sent Isrile (PW 11) to Civil Hospital, Ferozepur Jhirka for treatment.
spot Panchnama, he recovered certain articles including a country made pistol
of .12 bore with one live cartridge and one bullet (metal). All these articles
were kept in the sealed packet. In the meantime, he arranged removal of both
the dead bodies to Community Health Centre, Nuh where Dr. Jai Kishan (PW 9) conducted
the post mortem examination on 6th January, 1990
at about 9.30 a.m. During the course of investigation,
the accused came to be arrested on different dates i.e. 9th January, 1990. During their interrogation, they
made statements which led to the recovery of pistols which came to be seized
under the various panchnamas. After completing the investigating, a charge
sheet came to be filed against eleven accused persons for the aforesaid
defence of the accused is that of total denial.
to them, they have been falsely implicated in the present crime on account of
enmity. Chao Khan, Baddal and their close relatives were being tried for
committing the murder of Asru and the said trial was pending at the relevant
time. They pleaded that they are innocent and they be acquitted.
prosecution in support of its case mainly relied upon the evidence of Saheed
(PW 10), Isrile (PW 11) as witnesses of fact in addition to the evidence of
other formal witnesses including the medical evidence.
the outset, it needs to be stated that the incident in question took place on 5th January, 1990 at about 9.30 a.m. and the FIR was registered immediately at about 10.40 a.m. The special report was received by the Illaqa
Magistrate on the same day at 4.40 p.m. It is
also not seriously disputed that Chao Khan and Baddal met with homicidal
deaths. Dr. Jai Kishan (PW 9) conducted the post mortem examination on the dead
bodies of Chao Khan and Baddal. As regards Chao Khan, he noticed as many as
nine ante mortem injuries which were as under :-
Compound fracture of left forearm involving both the bones.
Fracture of right arm which was a compound fracture.
Abrasion 2 a.m. x 1/2 c.m. on left wrist joint.
Multiple abrasions of various sizes on the back.
bruise on right side of chest of the size 13 c.m. x 3 c.m.
bruise almost parallel to injury No. 5 of the size 20 cm long and about 3 cm
Incised wound on the occipital with region of the size 7 c.m. long and 2 c.m.
wide associated with fracture of underlying bone. Brain tissue was visible.
Lacerated wound above the right eye on the fronto temporal region. Its size was
3 c.m. x 3 c.m. The underlying bone was broken into pieces and the brain
tissues were visible.
Multiple punctured wounds on right side of neck and face. On punctured wound
was at the right side of neck and another was on level of cheek and front of
right ear very in from 1 c.m. x 1/2 c.m. in diameter.
opined that the injuries to the vital organs which resulted in shock and haemorrhage,
were sufficient to cause death in the ordinary course of nature.
injuries noticed on the dead body of Baddal were as under:-
incised wound extending from right tempo parietal region to occipital region of
the size 20 c.m. x 2 c.m. fracture of the underlying bone was there and the
brain tissue was visible. The hairs had got cut by the injury.
Lacerated wounds on t h e neck of right ear of the size 1 c.m. x 1/2 c.m. There
was fracture of the underlying bone. It was deep and extending to brain tissue.
Bruise of red colour on the right side of chest. The size was 25 c.m. x 3.5 c.m.
dissection of skull it was found that the right temporal, parietal and
occipital bones were fractured in pieces. The brain tissue was badly damaged.
Right side of thorax contained blood which was associated with laceration of
right lung of the size 3 c.m. x 1.5 c.m. Blood was present in the right side of
thoracic cavity. Ribs of right side from No. 4 to 9 were fractured.
surface of right side lobe of liver was lacerated and it was of size 7 c.m. x 2
c.m. Abdomen contained blood, Right side of the heart also contained blood.
opined that the injuries to the vital organs resulted in shock and haemorrhage
and were sufficient in the ordinary course of nature to cause death. He further
opined that injury No.9 on the person of Chao Khan could be the result of gun
shot. Injury No.1 on the person of Baddal was not the result of gun shot and
could be caused by farsa/lathi. We have gone through the evidence of Dr. Jai Kishan
(PW 9) very carefully and we affirm the findings of the courts below that both Chao
Khan and Baddal met with homicidal deaths.
Sushil Kumar, learned Senior Counsel appearing in support of this appeal urged
that the evidence of two eye witnesses, namely, Saheed (PW 10) and Isrile (PW
11) is totally unreliable and infact they might not have seen the assault
caused by the appellants on the person of Chao khan and Baddal. To discredit
their evidence, he drew our attention to the evidence of Dr. Jai Kishan (PW 9)
who held the autopsy on the dead body of Baddal and submitted his post mortem
examination report thereof. Dr. Jai Kishan (PW 9) while giving evidence in
court has bifurcated injury Nos. 1. and 1A and testified t hat injury no. 1A
could be caused by fire arm whereas no such bifurcation was found in the post
mortem examination report. Both the eye witnesses testified that A-2 fired from
his pistol at Baddal. He urged that the eye witnesses did not speak of an
assault caused by the appellants by a sharp edged weapon. Injury No.1 was an
incised injury caused on the right temporal parietal region extending upto
occipital region having dimension of 20 cm x 2 cms. and causing fracture of the
underline bone. The medical evidence is, therefore, in conflict with the
account given by the eye witnesses. He further urged that i n order to lend
corroboration to the evidence of these two eye witnesses, Dr. Jai Kishan (PW 9)
sought to bifurcate injury No.1 into injury No.1 and 1A and testified that
injury No.1A could be caused by the fire arm. This was an afterthought attempt
the part of the prosecution to seek corroboration to the evidence of eye
witnesses from the evidence of Dr. Jai Kishan (PW 9), Relying upon this
evidence of both these eye witnesses is untrustworthy and therefore the entire
prosecution case against the appellants be rejected.
have given our anxious thought to the above contentions raised on behalf of the
appellants and we may examine as to whether the submissions are well founded
and could demolish the evidence of eye witnesses even as regards the assault on
Chao Khan, Saheed (PW 10) is the son of Baddal. The incident in question took
place on 5th January,
1990 at 9.30 a.m. and he lodged the First Information Report at the
police station at 10.40
a.m. The special
report reached the Illaqa Magistrate on the same day at 4.40 p.m. He testified that he alongwith Chao Khan, Baddal, Isrile
and Risal were going to Ferozepur Jhirka to attend the pending criminal case
under the Arms Act. After getting down from the four wheeler at the bye-pass,
they reached at about 9.30
a.m. near the bus
stand and at that time, A-1 to A-4 and A-10 who were armed with country made
pistols encircled them and in the meantime other accused persons who were armed
with lathis came running towards them. A-1 then fired a shot from his piston
which hit Chao Khan on his head. A-2 fired a shot from his pistol which hit his
father Baddal on his head.
Khan and Baddal fell down and thereafter other accused persons started that Isrile
(PW 11) who moved forward to intervene was assaulted by A-8 and A-9 with lathis
causing injuries to him (Isrile). He then stated that he lodged the First
Information Report at about 10.40 a.m. The
said report in all material particulars corroborated his evidence in the court.
Isrile (PW 11) an another injured eye witness the son-in-law of Baddal. The
injuries sustained by this witness were proved by Dr. Som Dev Gupta (PW 8) who
examined him on 5th January,
1990 at about 2.30 p.m. This medical evidence lends corroboration to the
evidence of Isrile (PW 11) when he asserted that he was present at the time of
(PW 11) narrated by Saheed (PW 10). Both these witnesses were searchingly cross-examined
on behalf of the defence we see no reason to discard their evidence. The
evidence of these two eye witnesses find corroboration from the person of Chao
Khan. Both the courts below have accepted their evidence as credible one and we
see no reason to take a different view as regards the assault by the appellants
on Chao Khan. Their presence at the time of incident also appeared to us quite
natural because they were going alongwith Chao Khan and Baddal to attend the
criminal case which was fixed on 5th January 1990 at Ferozepur Jhirka. It is common premise that chao Khan
and Baddal were the accused in the criminal case relating to committing the
murder of Asru and, Therefore, it would be quite reasonable to expect that Chao
Khan and Baddal would take their close relatives with them while going to the
court at Ferozepur Jhirka. On reading their evidence in proper perspective, we
are of the opinion that the courts below have committed no error in accepting
their evidence as credible one and convicting the appellants for the offences
punishable under Sections 302/149 of the Indian Penal Code for committing the
murder of Chao Khan. Suffers from no infirmity. The conviction of the
appellants under Section 148 of the Indian Penal Code also calls for no interference
because the appellants who were more than five in number were armed with deadly
weapons formed an unlawful assembly and assaulted Chao Khan Which had resulted
into his death. The result, therefore, is that the appellants were rightly
convicted for the offences punishable under Sections 302/149, 323/149 and 148
of the Indian Penal Code.
Coming to the conviction of the appellants under Sections 302/149 of the Indian
Penal Code for committing the murder of Baddal, there appears to be some
inconsistency in the evidence of eye witnesses and the medical evidence but
this inconsistency is of very insignificant character.
(PW 10) and Isrile (PW 11) who were the eye witnesses to the occurrence
although searchingly cross-examined on behalf of make their evidence doubtful.
Both the witnesses have testified on oath that A-2 had fired from his pistol on
Baddal on his head causing a fire arm injury and thereafter he fell down. The
appellants who were carrying the lathis thereafter assaulted him. It is true
that Dr. Jai Kishan (PW 9) who conducted the autopsy in his post mortem
examination report described injury No.1 Being incised wound 20 cm x 2 cm
causing fracture of the underline bone. He further noticed lacerated wounds on
the neck af right ear of the size 1 cm x 1/2 cm causing fracture of the
giving evidence in the court, he described an incised wound as injury No.1 and Iacerated
wounds as injury No. 1A.
further testified that it was a bonafide mistake in not describing these two
injuries separately. Mr. Sushil Kumar urged that Dr. Jai Kishan (PW 9) has made
material improvement in his evidence before the court to suit to the
prosecution and to lend support to the evidence of eye witnesses and,
therefore, such an improved version which demolishes the evidence of eye
witnesses be not accepted.
submission, is an attractive on but having regard to the facts and
circumstances of this case, it is not possible to accept the same. The
consistent evidence of both these eye witnesses was that A-2 had fired from his
pistol on Baddal causing fire arm injuries on his head and this evidence, in
our opinion, is quite credible one. Both these witnesses have referred to the
fire arm injury on Baddal on his head whereas lacerated wounds were found
behind the right ear. In an assault of this nature, exact description as regard
to location of the fire arm injury might be not accurate but that by itself
would not render their evidence untrustworthy. It needs to be mentioned that
the medical evidence is an opinion evidence which is used to lend corroboration
to the evidence of eye witnesses. If the medical evidence is found to be
totally inconsistent with the ocular evidence on a given sit of facts, it would
be permissible for the court to reject the ocular evidence. As far as the facts
of the present case are concerned as pointed out earlier, the inconsistency
between the ocular evidence and the medical evidence is of a very minor nature
and we do not think it proper to reject the evidence of these two eye witnesses
on that score. As indicated earlier, the incident in question took place at
about 9.30 a.m., the First Information Report was
lodged at about 10.30
a.m. and the special
report to the Illaqa Magistrate reached at about 4.40 p.m. The First Information Report did state that A-2 had fired
from his pistol on Baddal as a result of which he fell down. There was hardly
any time for Isrile (PW 11) to concoct any false story. Having regard to these
circumstances, we are of the opinion that the courts below have committed no
error in convicting the appellants for committing the murder of Baddal under
Sections 302/149 of the Indian Penal Code.
For the foregoing conclusions, we see no merit in this appeal. The appeal to
stand dismissed. The appellants, if on bail, shall surrender to their bailbonds
to serve out the remaining period of their respective sentences.