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PETITIONER: JAGDISH

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       12/12/1997

BENCH: G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T 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

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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

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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

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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

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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. IN THE MATTER OF