Alishri Raj Mohammad & ANR Vs. State of Himachal Pradesh  INSC 785
(21 October 1997)
MUKHERJEE, K. T. THOMAS
Appeal No. 658 of 1996
brothers were charged for implementing a designed criminal conspiracy for
elimination of one who was their bete noire. The session court and the High
Court concurrently found them guilty of Section 120B and Section 302 read with
Section 34 of the Indian Penal Code and consequently they were convicted and
sentenced to undergo imprisonment for life besides payment of some fine. These
appeals, by special leave have been filed by the aforementioned three brothers.
person who was murdered in pursuance of the criminal conspiracy - Tara Chand -
was the factotum of Jai Paul (PW- 13) with whom appellants had scores to settle
for long. Prosecution case, briefly, is that on the morning 9.5.1990 the three
appellants had a dig at Smt. Kiran Chaudhan (wife of Jai Paul) and it resulted
in the initiation of a proceeding under Section 107 of the Code of Criminal
Procedure against them. Appellants were infuriated by it and the acerbity
between the two factions got aggravated further. At about 6.00 p.m. the three appellants together proceeded to a glade
situate near a jungle where deceased Tara Chand was working and showered blows
on him with gandasi and chhura (both cutting weapons). The victim made a loud
cry which attracted the attention of some people in the proximity who rushed to
the spot, but in the meanwhile the assailants took to their heels towards the
jungles. Those who reached the spot found Tara Chand lying dead in a pool of
there was no eye-witness for the murder, the prosecution had to rest on
circumstances alone for proving that appellants have murdered Tara Chand.
Sessions Court and the High Court found, in one accord, that the circumstances
have concatenated into a complete chain pointing unerringly to the complicity
of the appellants in the murder of Tara Chand.
was no dispute that Tara Chand was murdered on the evening of 9.5.1990 at the
place of occurrence mentioned by the prosecution. The post-mortem examination
conducted on the body of Tara Chand revealed that he had a number of incised
injuries, fracture, of ribs, and some stab wounds.
the stab injuries had penetrated into the abdominal cavity. Another stab wound
plunging through the second and third intercoastal space (right side) had
caused a cut on the peritoneum. It is clear that deceased was the victim of a
murderous attack inflicting many blows with cutting weapons.
main circumstance found by the two Courts are the following: (1) appellants
were sore with Tara Chand for his role as goonda of Jai Paul, (2) The three
appellants were found proceeding towards the place of occurrence just a few
minutes before the occurrence. PW 6-A (a clerk attached to the post office of Nahan)
saw the three appellants during the evening and later PW-6A heard about the
murder of Tara Chand; (3 PW4 a boy aged 13 saw the appellants sitting on the
open field near the place of occurrence at about 5.30 p.m. and a few minutes
later PW4 heard a cry "Hai Ram mar diya" (Oh Go, I am killed); (4)
PW2 Ram Singh heard the same cry from near the place of occurrence and the
witness ran to the spot and saw the three appellants running towards jungle
area and Tara Chand lying dead in a pool of blood; (5)A1 - Raj Mohammad told
the investigating officer, during interrogation, that he had concealed a gandasi
inside the bush. When he was taken to that place he took out P2- gandasi from
the concealed place. Likewise second accused, when interrogated, told the
investigating officer that he had concealed the knife in the jungle and when he
was taken to that place he took out P3-chhura from beneath the growth of the
jungle; (6) that the gandasi and chhura were subjected to chemical tests in the
Forensic Science Laboratory, and blood was found sticking on both the weapons.
counsel contended that there is real dearth of evidence to prove that there was
any motive for the appellants to target Tara Chand, for, their grouse was only
towards jai Paul (PW13). Learned counsel contended that it was most unlikely
that appellants would have turned against the deceased who was only a body
guard of Jai Paul.
have come across, in the evidence, that some letters have been seized 8.4.1990
and it was written by A1-Raj Mohammad to A2-Niaz Ali. In that letter mention
has been made of some incident which took place on 25.3.1990. The letter
contains a request to the addressee to come home on leave with a weapon. Ex.
PMM is a petition addressed by A1 to the Chief Minister of Himachal Pradesh on
2.5.1990. A1 has mentioned in it that he and his family were suffering from the
atrocities perpetrated by Tara Chand at the behest of PW13. Ex. PW.13B is a
letter written by Niaz Ali to Raj Mohammad (A1) on 4.4.1990. In the petition a
reference was made to some acts of the deceased including pelting stones at the
house of the accused.
those letters are genuine, no doubt, they would reflect the mind of A1 and A2
towards the deceased. PW 20 (ML Sharma), Government Examiner on questioned
documents, after comparing the hand-writing in the said letters gave an opinion
that both were written by the accused. An attempt was made by the accused,
through the evidence of DW1 (NK Jain who claimed to be an expert in the science
of hand- writing) to show that opinion of the Government Examiner is basically
faulty. High Court has observed that "there is a natural tendency on the
art of an expert witness to support the view of the person who called him"
and preferred the opinion of PW 20-ML Sharma. The said observation of the High
Court cannot be downstaged, for, man so called experts have shown to be
remunerated witnesses making themselves available on hire to pledge their oath
in favour of the party paying them.
must be remembered that expert evidence regarding hand-writing is not the only
mode by which genuineness of a document can be established. The requirement in
Section 67 of the Evidence Act is only that the handwriting must be proved to
be that of the person concerned. In order to prove the identity of the
hand-writing any mode not forbidden by law can be resorted to. Of course, two
modes are indicated by law in Sections 45 and 47 of the Evidence Act. The former
permits expert opinion to be regarded as relevant evidence and the latter
permits opinion to be regarded as relevant evidence and the latter permits
opinion to be regarded as relevant evidence and the latter permits opinion of
any person acquainted with such hand-writing to be regarded as relevant
evidence. Those and some other provisions are subsumed under the title
"opinion of third persons, when relevant". Opinions of third persons,
other than those enumerated in the fasciculus of provisions, would have been
irrelevant. Among the permitted opinions those mentioned in Section 45 and 7
are also included. So it cannot be said that identity of hand-writing of a
document can be established only by resorting to one of those two sections.
There can be other modes through which identity of the hand-writing can be
established. Citing an example, if a letter is seized from the possession of
'A' and the letter contains the name of the sender as well as the name of the sendee
and if such sendee happens to be 'A' himself, those circumstances even without
resorting to the mode indicated in Sections 45 and 47 of the Evidence Act,
would be sufficient to draw an inference that the author or even scribe of that
latter is the sender and 'A' is the sendee of it.
can be made to two decisions of at three judge bench of this Court. First is
Ram Chandra vs. State of UP [AIR 1957 SC 381] wherein authorship of some
questioned letters has been found on the strength of "various items of
external and internal evidence." The same three judge bench has observed
in Mubarak Ali Ahmed vs.
of Bombay [AIR 1957 SC 857] thus:- "The
proof of the genuineness of a document is proof of the authorship, of the
document and is proof of a fact like that of any other fact. The evidence relating
thereto may be direct or circumstantial. It may consist of direct evidence of a
person who saw the document being written or the signature being affixed. It
may be proof of the handwriting of the contents, or of the signature, by one of
the modes provided in Ss. 45 and 47 of the Indian Evidence Act.
also be proved by internal evidence afforded by the contents of the document.
This last mode of proof by the contents may be of considerable value where the
disputed document purports to be a link in a chain of correspondence, some
links in which are proved to the satisfaction of the Court. In such a situation
the person who is the recipient of the document, be it either a letter or a
telegram, would be in a reasonably good position both with reference to his
prior knowledge of the writing or the signature of the alleged sender limited
though it may be, as also his knowledge of the subject-matter of the chain of
correspondence, to speak to its authorship." We find much support from the
aforesaid observations to formulate the legal position that the modes of proof
envisaged in Sections 45 and 47 of the Evidence Act are not exhaustive for
proving the genuineness or authorship of a document.
this case Ex. PW 20/B letter was taken into custody from the possession of A1 -
Raj Mohammad. It is ostensibly a letter written by his brother A2 Niaz Ali the
contents whereof are seemingly matters within the personal knowledge of those
persons. From those internal circumstances the Court can justifiably reach a conclusion
that the letter was written by A1 (Raj Mohammad) to his brother Niaz Ali (A2).
apart, A1 (Raj Mohammad) has not disputed his authorship of Ex.PMM petition
which was presented to the Chief Minister of Himachal Pradesh. The contents of
the petition would unmistakably point to the fact that Tara Chand was
considered a nightmare to the family of the appellants. Therefore, we
unhesitatingly agree with the finding of the two courts that appellants had
sufficient motive as against the deceased.
counsel contended that as PW2 found the deceased lying dead an inference can be
drawn that he would have reached the place only much after the occurrence. This
contention is based on the premise that the injuries sustained by the deceased
would not have resulted in his instantaneous death. It true that PW2 said in
his evidence that he found the deceased lying dead in a pool of blood.
an impression need not be a clinically correct- observation. It is possible
that deceased would have been lying unconscious and was nearing death, but PW2
would have taken it for granted that he had reached his end when he observed
the still lying body surrounded by a carmine background. In this context we kame
particular note of one incised wound on the parietal region just left to the
midline which the doctor found on the dead body during autopsy. That injury
would have rendered the victim to suddenly go into unconscious stage and it was
quite possible that when PW2 reached the spot he would have felt that Tara Chand
had already died. We are, therefore, not persuaded to reject the evidence of
PW2 on that score alone.
counsel contended that since blood found on the gandasa and chhura was not
identified as human blood there is no utility with the evidence relating to the
recovery of the weapons. The important aspect concerning recovery of the
weapons is that it renders the statements made by A1 (Raj Mohammad) and A2 (Niaz
Ali), to the police investigating officer admissible in evidence. Both of them
had stated to the police separately that he concealed the respective weapon at
the place wherefrom it was recovered.
27 of the Evidence Act renders such statement of the accused admissible in
evidence, whether it amounts to confession or not, but only to the extent it
distinctively relates to the fact discovered. So the incriminating circumstance
in this case is not merely that a gandasa and a chhura were disintered by the
police but that those accused persons admitted to the police that such weapons
were concealed by them at those places.
circumstances narrated above when put together would undoubtedly point to the
guilt of A1 and A2. But those circumstances are not sufficient to complete a
chain as against A3. In this context we point out that PW4 (Sanjeev Kumar) did
not see A3 (Gulzar Ali) at all when he saw the other two accused sitting near
the place of occurrence. The only circumstance made against A3 in that PW2 Ram
Singh saw him also running towards the jungle, besides the motive established.
But those two circumstances alone are not enough to conclusively say that A3 (Gulzar
Ali) had also participated in the murder of the deceased.
the conviction and sentence passed on him are liable to be set aside.
result, we dismiss the appeal filed by appellant Raj Mohammad and appellant Niaz
Ali but we allow the appeal filed by appellant Gulzar Ali and accordingly we
set aside the conviction and sentence passed on him and we acquit him. We
direct that appellant Gulzar Ali be set at liberty forthwith unless he is
required in any other case.