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PETITIONER: GULZAR ALISHRI RAJ MOHAMMAD AND ANR.

       Vs.

RESPONDENT: STATE OF HIMACHAL PRADESH

DATE OF JUDGMENT:       21/10/1997

BENCH: M. K. MUKHERJEE, K. T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                             WITH               Criminal Appeal No. 658 of 1996                       J U D G M E N T Thomas J.      Three 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.      The  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 blood.      As  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.      There was  no dispute  that Tara  Chand was murdered on the evening of 9.5.1990 at the place of occurrence mentioned

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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. One of  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.      The 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.      Learned 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.      We 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.      If 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

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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.      It 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.      Reference 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. State 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.           It  may   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

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    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.      In 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).      That 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.      Learned  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. Such  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.      Learned 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. Section 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

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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.      The 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. Consequently the  conviction and  sentence passed on him are liable to be set aside.      In    the  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.