Jagdish
Vs. State of Haryana [1997] INSC 932 (12 December 1997)
G.N.
RAY, G.B. PATTANAIK
ACT:
HEADNOTE:
G.N.
RAY. J.
The
convictions of the appellant under section 302 IPC and for offence punishable
under section 5 of the Terrorists and Disruptive Activities (Prevention) Act,
1987 (hereinafter referred to as TADA) and consequential sentence of
imprisonment for life and the fine of Rs. 500/-, in default of payment of fine
further rigorous imprisonment for five months for offence under section 302 and
rigorous imprisonment for a period of seven years together with a fine of Rs.
200/- in default of payment of fine, further rigorous imprisonment for two
months under section 5 of TADA passed in Sessions Trial No. 189/92 by the
learned Additional Judge, Designated court, Karnal at Panipat have been
impugned in this appeal by the convicted accused Jagdish.
According
to the prosecution case, at the instance of co-accused Ranbir Singh who died
during the pendency of the trial and at the behest of co-accused Chaudhary Ram,
the appellant Jagdish caused the murder of Pritam Lal Chopra on May 3, 1992 by firing at him from a pistol. The appellant was
charged for the offence under section 302 IPC and under section 5 of TADA and
the said deceased accused Ranbir Singh and the co-accused Chaudhary Ram were
charged under Section 302 read with section 120B IPC. The accused Chaudhary Ram
and the deceased Ranbir Singh were also charged for the offence under section
115 IPC.
It is
the prosecution case that the accused Chaudhary Ram had a very strained
relation with his son Om Prakash PW
2. Om Prakash
was residing in one portion in the house owned by Chaudhary Ram with his wife
and child and in another portion his father Chaudhary Ram and two other
brothers used to stay. Chaudhary Ram had filed a civil suit in Delhi against Om Prakash by alleging that
Om Prakash in connivance with his wife and in-laws wanted to extract a sum of Rs.
50,00,000/-
from him on account of the share of the property and they had also been
threatening to kill Chaudhary Ram and his family members and also had been
harassing them in various manner. Chaudhary Ram also gave a publication in
Hindustan Times on May
7, 1991 to the effect
that he had ousted his son Om Prakash and his wife Veena and his children from
the family and they had no right to claim any share in the property of Chaudhary
Ram. Chaudhary Ram also issued a notice on May 21, 1991 to Om Prakash asking him to vacate
the said house.
On December 14,1991, there was an attempt on the life
of he deceased Pritam Lal Chopra when the assailant fired at him in Karol Bagh
in Delhi. It was allege that Chaudhary Ram
led the said plot of murdering Pritam Lal Chopra. The Police, however, filed a
final report by indicating that it could not be ascertained as to who had
attempted to murder the said Pritam Lal in the said incident. On March, 13,
1991 PW 19 Shiv Lal came to Panipat to attend the auction of liquor vends for
the year 1992-93. The deceased Pritam Lal Chopra and other liquor vend
contractors had also attended the same and after about 15-20 minutes of the
departure of Pritam Lal Chopra, Shiv Lal had noticed that the accused Chaudhary
Ram accompanied by the other two accused Ranbir Singh and Jagdish were present
at the said place and Chaudhary Ram had told Ranbir Singh and Jagdish that Pritam
Lal was hurdle in this way and he should be eliminated. PW 10 Prem Singla had
celebrated the Mahurat ceremony of his liquor vend know as M/s Singla Sales L-I
at Gohana Road Panipat and in that connection, PW 1 Joginder Pal PW 2 Om Prakash
and the other witness Vijay Kumar came to Panipat and the accused Chaudhary Ram
had attended the said function. PW 3 Vijay Kumar also noticed accused Chaudhary
Ram in the company of other two accused Ranbir Singh and Jagdish and Vijay Kumar
had over-heard Ranbir Singh telling Jagdish the murder of Pritam Lal Chopra
must be committed on that day and he should not bother for the money which he
would get from Chaudhary Ram. Chaudhary Ram had also told Jagdish that the said
work must be done that day and he should not worry for money.
At
about 4.00 P.M. on May 3, 1992, when PW 1 Joginder Pal and PW 2 Om Prakash were
present near the said liquor vend of M/s Singla Sales, they found that accused Jagdish
took out a pistol from the right side pocket of his trouser and fired at Pritam
Lal Chopra and on being hit Pritam Lal Chopra fell down. Joginder Pal and Om Prakash
rushed to take care of Pritam Lal Chopra and in the meantime Jagdish fled away
from the place of incident. Pritam Lal Chopra was taken to civil hospital Panipat
by Joginder Pal and Om Prakash and on examination, Dr. R.K. Tandon declared him
dead. The said doctor despatched a written ruqua Ex. PF to Police Station and
Sub-Inspector Satbir Singh PW 21 rushed to the hospital and recorded the
statement of Joginder Pal (Ext. PA) on the basis of which the FIR was
registered PW 7 Dr. V.P. Gupta performed post mortem examination on the dead
body of Pritam Lal on May 4, 1992 and in his report Ex. PE, the doctor noted
that the death had taken place between 4 to 36 hours from the time of post
mortem. The doctor also extracted the fired bullet (Ex. P4) from the dead body.
The
accused Jagdish was arrested on December 10, 1992 and on investigation in the
presence of panch witness Naresh Kumar (PW 17) and others, the said Jagdish
made a disclosure statement (Ex. PL) and on the basis of such disclosure
statement, pistol (Ex. P5) as well as two cartridges were recovered underneath
the earth near the culvert of Ganda Nala in Huda colony in Panipat. PW 4 Lal Chand
also told the police that when he was sitting in the office of liquor
contractor at old bus stand, Gohana, he had seen Chaudhary Ram along with
co-accused Jagdish and Chaudhary Ram told that he had cleared the way by
getting Pritam Lal Chopra murdered. He also patted Jagdish for carrying out the
job nicely and told Jagdish that the money had been kept with Ranbir Singh and
he could take it from him. A fired cartridge was found by the Investigating
officer from the place of incident and the same was seized being Ex. P4. PW 11
Dr. L.A. Kumar the Ballistic expert give a report that the cartridge fired from
the pistol Ex. P.5 and the fired cartridge seized by the police officer had
been fired from the same pistol namely, Ex. P.5.
The
learned Designated Judge did not accept the case of conspiracy hatched by Chaudhary
Ram by indicating that the version given by the witnesses in support of such
conspiracy to cause murder of Pritam Lal Chopra was not free from doubt and it
was unlikely that Chaudhary Ram against whom an allegation of setting an
assailant for murdering Pritam Lal Chopra had earlier been made, would tell Jagdish
and Ranbir Singh at the hearing of other persons that Pritam Lal Chopra was to
be murdered by Jugdish and he should pay for it. The learned Designated Judge
having also indicated that if Joginder Pal and Om Prakash had over-heard such
conversation between Chaudhary Ram, Jagdish and Ranbir Singh, they would have
immediately warned Pritam Lal Chopra and would have ensure that such incident
would not take place. Therefore, the learned Designated Judge came to the
finding that the case against Chaudhary Ram could not be held to have been
established beyond reasonable time. But accepting the depositions of
eye-witnesses, namely, PW 1 and PW 2 Joginder Pal and Om Prakash, the learned
Designated Judge convicted the appellant Jagdish for the said offences under
section 302 IPC and section 5 of TADA.
Mr. Rajinder
Sachher, the learned senior counsel appearing for the appellant, has submitted
that admittedly there was strong enmity and bad feeling between Om Prakash and
his in-laws and the deceased who was a close relation of the wife of Om Prakash.
It is, therefore, quite likely that Om Prakash, Joginder Pal Vijay Kumar and
others were keen to implicate Chaudhary Ram and others by fabricating a false
story when Pritam Lal Chopra was murdered by some unknown assailant. The
prosecution fabricated a false story of hatching a conspiracy by Chaudhary Ram
by engaging Ranbir Singh and Jagdish to execute the plot of murdering Pritam Lal.
Such false allegation against Chaudhary Ram had not been believed by Designated
Judge and Chaudhary Ram was, therefore, acquitted. Mr. Sachher has submitted
that the murder of Pritam Lal Chopra by Jagdish was the outcome of the conspiracy
hatched by Chaudhary Ram. If the main story of hatching such conspiracy cannot
be accepted, the other part of the prosecution case, namely, in implementing
such conspiracy, Jagdish had murdered Pritam Lal Chopra is not at all
believable and such case must also fail.
Mr. Sachher
has submitted that according to the prosecution case Jagdish was only a hired
murderer otherwise he has no enmity with Pritam Lal Chopra . If the case o
hiring Jagdish in executing the conspiracy is to be discarded, the role not to
be accepted. Mr Sachher has also submitted that although Om Prakash and Joginder
Pal deposed that they were eye witnesses to the incident of murder committed by
Jagdish, it is quite apparent that Jagdish was not known to the said eye
witnesses. Therefore, mere assertion by PW 1 and PW 2 that Jagdish was known to
them from before cannot be accepted. It has come out from the evidences adduced
by the said eye witnesses that they did not know the other co-villagers and
also the Sarpanch and other important persons in the village of Jagdish. It has not been satisfactorily established how the said PWs.
1 and 2 had come to know Jagdish from before. Therefore, simply because in the
FIR the name of Jagdish was given, Jagdish cannot be convicted for want of convincing
evidence.
Mr. Sachher
has also submitted that the doctor holding post mortem on the deceased Pritam Lal
Chopra had noticed singing and blackening on the person of the deceased. Such
singing and blackening can take place if the victim is fired from a very close
range, but the eye witnesses had stated that Jagdish had fired on the deceased
from a distance of 3 to 4 feet. No singing or blackening would have taken place
if the victim had been fired from a distance of 3 to 4 feet. Such fact only
indicates that the said two witnesses had not seen Jagdish firing on Pritam Lal.
Mr. Sachher
has also contended that the report of the ballistic expert should not be
accepted to be reliable because the ballistic expert has not noted the
characteristics of weapon, namely, pistol Ex. P.5 in his report. In the absence
of such noting of the characteristics of the weapon, his deposition becomes
doubtful as to whether he had clearly noticed the characteristics of the
weapon.
Mr. Sachher
has also contended that the alleged disclosure statement and consequential
recovery of pistol and cartridge, by the police should not be believed. He has
submitted that the seizure witness was not a local person but admittedly a
chance witness. Mr. Sachher has submitted that search and seizure must be done
by taking all precautions to ensure that such search and seizure had been done
honestly and there was clear transparency in such search and seizure. Mr. Sachher
has also submitted that the name of the witnesses were not mentioned in the daily
diary.
It is,
therefore, doubtful whether the alleged FIR was registered on the basis of the
statement of Joginder Pal shortly after the incident as alleged by the
prosecution. It is not unlikely that at a later stage, the FIR was fabricated
by cooking a false story and giving the names of the accused. Mr. Sachher has,
therefore, submitted that in the facts and circumstances of the case, there is
enough scope to doubt the correctness of the prosecution story. The appellant,
therefore, is entitled to get the benefit of doubt and his convictions and
sentences are liable to be set aside.
Such
contention of Mr. Sachher has, however, bee disputed by Mr. Siwach , learned
counsel appearing for the respondent-state. Mr. Siwach has submitted that
within two hours from the said incident of murder, the FIR was lodged where the
name of Jagdish alongwith the name of his father and other particulars were
mentioned. He has also submitted that simply because characteristics of the
weapon of assault was not mentioned by the Ballistic expert, there is no
occasion to discard his evidence because the identity of the pistol which was
seized on the basis of the disclosure statement by the accused Jagdish has been
clearly established. Mr. Siwach has also submitted that non- mentioning of the
name of the witnesses in the daily diary cannot vitiate the prosecution case
when the name of the accused with relevant particulars was clearly mentioned in
the FIR lodged without any delay. By convincing evidences of the eye witnesses
the complicity of Jagdish in the commission of the said murder has been
established. He has, therefore, submitted that this appeal should be dismissed.
After
giving our careful consideration to the facts and circumstances of the case and
the evidences adduced through which we have been taken, it appears to us that
the incident of murder had taken place at about 4.00 P.M. PW 1 and PW 2
immediately had removed the victim to the hospital where he was declared dead
by the doctor who had examined the deceased and on the basis of ruqua sent by
the doctor, the police came to the hospital and immediately on the arrival of
the police statement of PW 1 forming the FIR was recorded. In the said FIR the
name of the appellant Jagdish was clearly mentioned by indicating the name of
his father and other particulars. There is nothing on record on the basis of
which it can be reasonably held that such FIR was fabricated. There is no good
reason to discard the evidences of the eye witnesses of PW 1 and PW 2 only
because the co- villagers of Jagdish were not known to them. It also appears to
us that a recovery of the weapon of assault on the basis of disclosure
statement made by the accused had been established convincingly and the report
of the ballistic expert also establishes that the bullet which was recovered
from the body of the deceased at the tie of post mortem examination was fired
from the pistol which was recovered on the basis of disclosure statement made
by the accused Jagdish. The manner in which Pritam Lal Chopra was murdered by
firing pistol shot from behind as indicated by the said two eye witness also
stands corroborated from the medical evidence about the nature of the injury
suffered by the said deceased. Therefore, the complicity of the appellant Jagdish
in committing the murder of the deceased has been clearly established. The
prosecution case about hatching a conspiracy by Chaudhary Ram has not been
established by any convincing evidence but on that account, the direct evidence
against the accused Jagdish in committing the said murder cannot be discarded
as sought o be contended by Mr. Sachher, We, therefore, find no reason to
interfere with the order of conviction and sentences passed against the
appellant and the appeal, therefore, fails and is dismissed.
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