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PETITIONER: BALLU & ORS.

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       10/10/1996

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE, J.      The subject  matter of  challenge in this appeal is the judgment dated  January 16,  1988 rendered by the Designated Court, Rohtak  disposing of  two cases,  being Sessions Case No. 280  of 1986  and Arms  Act Case No. 281 of 1986. By the impugned judgment  the Designated  Court convicted the three appellants before  us under Section 302 read with Section 34 IPC (two counts) and also convicted one of them, namely, Raj Kumar under  Sections 25  and 27  of the Arms Act, 1959 read with Sections  6  of  Terrorist  and  Disruptive  Activities (Prevention) Act, 1985.      2 (a)  According to  the prosecution  case on March 20, 1986 at  or about  6.30 P.M.  the three  appellants  waylaid Attar Chand  and Jaggar,  who were  the Sarpanch  and  Panch respectively of  village  Nigana  and  with  whom  they  had previous enmity,  near a  field which was at a distance of 3 Km. from  the village  abadi. Of  the appellants  Ballu  was carrying a  dau, Jagdish  a saria (iron rod) and Raj Kumar a pistol. while  Raj Kumar  stood as if he was ready to shoot, the other  two struck  Attar Chand  and  Jaggar  with  their respective weapons resulting in their instantaneous death.      (b) In that night - at or about 8.30 P.M. - when Satram Dass (P.W.11),  brother of  Attar Chand,  came back home and found that  the latter  had not  returned home till then, he went in his search. He first went to the house of Jaggar and learnt that  he had also not come back. He then, accompanied by one  Natha Ram, went in their search and ultimately found their dead bodies lying in the field outside the village. He returned to  his village  and contacted  Satram  Dass  Batra (P.W.9), a  former M.L.A  of Klanaur over telephone and told him what  he had seen. On receipt of the information, Satram Dass Batra  went to  Kalanaur Police  Station at  2.A.M. and lodged a report which reads as under :      "I am  a resident of Kalanaur. I am      an Ex. M.L.A.  Today at 1.30 in the      night,  I   received  a   telephone      message from Satram Dass son of Vir      Bhan Batra,  resident of Nigana, to      the  effect  that  dead  bodies  of

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    Sarpanch Attar  Chand  son  of  Vir      Bhan, caste  Batra, and  Jaggar son      of Ramji Lal, caste Harijan Chamar,      residents of  Nigana, were lying at      two places  in  the  gram  crop  of      Satram  Dass   near  the  johri  of      Dalip. the  dead bodies  had  sharp      edged weapon  injuries on the faces      and heads  and both  of  them  were      lying in  a pool of blood. Somebody      had murdered  them. I  have come to      inform the  police. Action  may  be      taken."      (c) On  the basis  of that report SI Mange Ram (P.W.16) registered a case and left for the spot. Reaching there at 3 A.M. he  found the dead bodies of Attar Chand and Jaggar and after conducting  inquest proceedings  sent the  bodies  for post mortem  examination. Near  the bodies  he  found  topa, sweater, parna,  chaddar, a blood stained saria and one shoe which would  fit the  right foot.  He seized  those articles along with  some blood  stained earth  found there.  He also found some  foot prints  at  the  spot  and  prepared  their moulds.      (d) It is the further prosecution case that on April 7, 1986 appellant  Jagdish  approached  Karam  Chand  (P.W.10), Sarpanch of village Kherari, and made a confession regarding the two  murders and requested him (Karam Chand) to take him to the police station. Karam Chand then took him to SI Mange Ram (P.W.16)  who placed  him under  arrest. The  pajama and kurta, he  was then  wearing were  taken possession of by SI Mange Ram  and kept them in a sealed parcel. He interrogated him and  pursuant to  his statement a watch and a shoe meant for the  left foot, which were concealed in his wheat field, were recovered.      (e) Eight  days later - on April 17, 1986 to be precise - the  appellant Raj  Kumar went  to the  house of Ainshilal (P.W.8), lambardar  of village  Kalanaur and  made a similar confession before  him implicating himself and the other two appellants in  the above  two murders  and requested  him to produce him  before the  police. While  going to  the police station   they mer  SI Ravinder  Kumar (P.W.17)  at the  bus stand and Ainshailal handed over Raj Kumar to him.      (f) While  in his  custody SI  Ravinder  Kumar  (P.W17) interrogated Raj  Kumar on April 19, 1986 in the presence of Narender (P.W.12)  and another  witness. Raj Kumar disclosed that he had kept concealed a country made pistol of .12 bore and a  live cartridge  in a  pit under a kikkar trees in his fields and  pursuant to  his disclosure  statement a  pistol (Ex. P.17)  and a  cartridge (Ex.P.18)  were recovered  from that place.  S.I. Ravinder  Kumar seized  those articles and put them  in a  sealed  parcel.  After  this  recovery  S.I. Ravinder Kumar  sent a report to the police station (Ex.PLL) and, on  its basis,  a separate  case under the Arms Act was registered against Raj Kumar.      (g) To  continue with the prosecution story - on May 5, 1986, the  appellant Ballu went to Satram Dass Batra (P.W.9) of village  and confessed  of his  having committed  the two murders along  with the  other two  appellants and requested him (Sri Batra) to produce him before the police. He acceded to this  request and  took Ballu  to Kalanaur police station where SI Ravinder Kumar (P.W.17) places him under arrest. On May 8,  1986 Ballu was interrogated at the police station by SI Ravinder  Kumar in  the presence  of Krishan Lal (P.W.13) and he disclosed that he had kept a dau concealed in the hut of ’Sarkandas’,  situated in the vicinity of village Nigana.

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He further disclosed that he had also kept a ring wrapped in old rags  in an ’alla’  of his residential house. Ballu then led the  police party  to the  places mentioned  by him  and brought out  the above  two articles  which came  to be duly seized under panchanama.      (h) The moulds prepared from the footprints seen at the spot, the blood stained earth and shoe seizes therefrom, the specimen moulds  of the  appellants and the shoe and the dau recovered pursuant  to the  statements of  appellant jagdish and Ballu  respectively were  sent to  the Forensic  Science Laboratory  (F.S.L.)   by  the   Investigating  Officer  for examination by  the Ballistic  Expert.  On  receipt  of  the reports  of   such  examination   and  after  completion  of investigation   S.I.    Ravinder   Kumar    submitted    two chargesheets;  one   against  the   three   appellants   for committing the  murders of  Attar Chand  and Jaggar on march 20, 1986  in  furtherance  of  their  common  intention  and another against  the appellant  Raj Kumar  for  having  been found in  unlawful possession of a pistol and a cartridge on April 19, 1986.      3. The  appellants abjured  their guilt  and  contended that they  had been  falsely implicated in the case owing to enmity. The  appellant Raj  Kumar’s further  contention  was that he did not make any statement to the police and as such the question  of recovery  of pistol  and cartridge  at  his instance did not arise.      4. Coming  first to  the charge  relating  to  the  two murders, we  get from the evidence of SI Mange Ram (P.W.16), who held  inquest upon  the dead  bodies of  Attar Chand and Jaggar, that  there  were  a  number  of  injured  on  their persons.  Dr.   D.K.  Sharma   (P.W.1),  who  held  autopsy, testified  that  there  were  three  stabs  wounds  and  one lacerated wound  and four incised wounds and one penetration wound on the persons of Attar Chand and Jaggar respectively. Besides, he  found that  a number  of underlying  bones were fractures of  both of them. He opined that the injuries were ante-mortem and  sufficient to  cause death  in the ordinary course of  nature. The  uncontroverted evidence of these two witness establishes  that both  Attar Chand  and Jaggar  met with homicidal death.      5.  The   crucial  question  that  now  falls  for  our determination is  whether the  prosecution had  been able to conclusively  prove   that   the   three   appellants   were responsible for  their such death. To prove this part of its case the  prosecution relied  on the ocular evidence of Hari Chand (P.W.5)  and Prabhati  (P.W.7) as  also circumstantial evidence. Before  adverting to  the circumstantial  evidence it will  be pertinent to look into and evaluate the evidence of the above two eye-witnesses.      6. Hari Chand (P.W. 5), a resident of Nigana, testified that on  March 20,  1986 he  had purchased standing crops of green grams  from one Birju of village Nigana for 3400/- and to remove  those crops  from the  field he  took a truck and some laborers  there. After the crops were reaped and loaded in the  truck, he despatched it to Delhi. Thereafter he went to see  the standing crops of Satram Dass (P.W. 11), brother of Attar  Chand. On the way when he had reached the villa of Krishna Lal he saw five persons standing there and they were Attar Chand  and Jaggar  (the two  deceased) and  Raj Kumar, Jagdish and  Ballu (the  three appellants).  Raj  Kumar  was holding a  pistol in  his hand  as if he was ready to shoot, while Jagdish  and Ballu  were armed  with a  sariya and dau respectively. He  then saw  Jagdish and Ballu striking Attar Chand with their respective weapons as a consequence whereof he fell down. Meanwhile, when Jaggar came running, Raj Kumar

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caught hold  if him  and the other two appellants dealt with him in  a similar  fashion. On  seeing the  assault when  he (P.W. 5)  raised and  alarm, Prabhati  (P.W. 7)  came to the spot and also saw the occurrence. Seeing them Raj Kumar told his companions  that as  people were coming from the village they should  run away.  The three  appellants then  left the place after  threatening them  that if  they  disclosed  the incident to  anyone or gave evidence against them they would also meet  the fate  of Attar  Chand and Jaggar. Ten both of them ran  away towards  their village.  P.W. 5 lastly stated that he  made a  statement before  the police  in March  21, 1986. In  cross-examination he  stated that  he had left for Delhi in the truck in which he had loaded the grams and that he did  not talk  about the  incident to  anybody.  He  also detailed the route of the truck to Delhi.      7. The other eye-witness Prabhati (P.W. 7), who is also a resident  of Nigana,  deposed that  while in search on his missing buffalo he had reached the land of Parshottam in the evening he  saw the three appellants surrounding Attar Chand and Jaggar.  Jagdish was  carrying a  saria, Ballu a dau and Raj Kumar  was holding  a pistol  in his hand as if ready to shoot. Then  he detailed  the manner  in which the above two persons met  with their  death at  the hands  of  the  three appellants, which  fits in  with  the  sequence  of  assault testified by  P.W. 5.  He went on to say that before running away the  spot the  appellants gave  out that  in case  they testified against  them they  would meet  the same  fate. On hearing this he and Hari Chand hurried back to the village.      8. Though,  apparently there is no reason to disbelieve the above  two witnesses, more so when they corroborate each other  on  material  particulars,  closer  look  into  their evidence makes i t abundantly clear that they could not have been present  at the  time of  the  alleged  occurrence.  As notices earlier,  it is  the categorical statement of P.W. 5 that only  after the  truck loaded  with the  crops left the field, that  he proceeded  towards the  field of Satram Dass and saw the incident. If this testimony of P.W. 5 is read in the context  of the answer elicited in his cross-examination that he left for Delhi in the truck in which the grains were loaded he  could not  have gone  towards the field of Satram Dass and,  for that  matter, seen the incident. When P.W.5’s presence at  the spot when the incident took place cannot be believed, the  evidence of  P.W. 7, who according to P.W. 5, reached the  spot on  an alarm raised by him (P.W. 5) cannot be also  believed, more so when he (P.W. 7) stated that both of them  proceeded towards  the village  together after  the incident. The sequence of events relating to their purported arrival at  the spot  therefor belies  their claim  of their having  seen  the  incident.  This  apart,  the  explanation offered by  them that  owing to  threat  meted  out  by  the appellants they  could not  dare to disclose the incident to the villagers  is difficult  to accept. Admittedly, both the deceased also  hailed from  their village Nigana. Therefore, it was expected of P.W. 5 and 7, if they had really seen the incident, that  they would  disclose to Satram Dass, when he was frantically  searching for  his brother  and Jaggar,  at least the fact they were murdered and their dead bodies were lying in  the field  - if not the names of the murderers for fear of the appellants.      9. Now  that we  have found  that the  direct  evidence relation to  the murders  is  wholly  untrustworthy  we  may advert to the circumstantial evidence led by the prosecution to prove  its case.  As notices  earlier, according  to  the prosecution case  each of  the three  appellants made extra- judicial confession  implication himself  and the other two.

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To prove  the confession  the prosecution examined Ainshilal (P.W.8), Satram Dass Batra (P.W.9) and Karam Chand (P.W.10). From their  evidence we  get that  on April  7, 1986 Jagdish made his  confession before  Karam Chand (P.W. 10); on April 17, 1986  Raj Kumar  before Ainshilal (P.W. 8; and on May 5, 1986 Ballu  before Satram  Dass Batra (P.W.9). Each of these three witnesses  stated that after making the confession the concerned appellant  requested him to produce him before the police.  The   story  of   the   three   appellants   making confessions, which  are on  identical  terms,  before  three different persons,  who live  in villages  far off  from the villages  of   the  respective   appellants  at   periodical intervals appear  to is  to be  artificial and unnatural. If really their conscience impelled them to make a clean breast of  their   guilt  the   appellants  themselves  could  have surrendered before the police instead if taking a circuitous route of first approaching the above three witnesses for the same purpose, more so when there is noting on record to show that they were persons of their confidence. We are therefore of  the   opinion   that   the   extrajudicial   confessions purportedly made  by the  three appellants which needless to say were retracted, do not bear any scrutiny.      10. Against  Jagdish the  prosecution led  evidence  to prove that  (i) pursuant to the statement made by him to the police, a shoe which fitted his left foot, and a watch which belonged to Attar Chand were recovered from his wheat field; (ii) the  shoe, which  was found at the spot was of the same pair; and  (iii) the  moulds prepared  from the  foot  print found at  the spot  fitted in with the mould of his foot. To prove that  above circumstances  the prosecution relied upon the evidence  of S.I.  Mange Ram   (P.W.  16), who initially investigated the  case and  Karam Chand  (P.W. 10)  in whose presence the statement was made by Jagdish and the aforesaid articles were  subsequently recovered,  and the  reports  of Forensic Science laboratory. In our considered view the oral evidence adduced  by the  prosecution if  proof of the above circumstances is  clearly fabricated.  Is we  are to believe the evidence  of P.Ws.  10 and  16 in  this regard, it would mean that either Jagdish ran away from the spot wearing only one shoe  or carried  the same which was of no value, to his fields which  was at a distance of 1.1/2 kilometers and kept it concealed  there for  implicating  himself.  It  will  be preposterous to draw any of such conclusions. Then again, it being the  positive evidence  of Satram  Dass Batra (P.W.9), who claimed to have been at the spot since 2.30 or 3.00 A.M. of that  fateful night  till 3  P.M. on  the next  day, that thousands of  people had  collected at  the spot  before the arrival of  the  police,  the  claim  of  the  Investigation Officer that  foot prints of Jagdish and a shoe belonging to him were  found there  is patently  false.  As  regards  the alleged recovery  of the  watch of  Attar Chand  it  may  be mentioned that  none of the two eye-witnesses testified that any of  the appellant snatched away his watch. While on this point we  cannot also  lose sight of the fact that according to the  prosecution case  motive for the murder was previous enmity and not gain.      11. As  against Ballu  the circumstance alleged is that after he  was taken  into custody he made a statement before the Investigating  Officer  on  May  8,  1986  and  pursuant thereto a  dau  and  ring  belonging  to  Attar  Chand  were recovered. for  the reasons given by us for disbelieving the story of the recovery of wrist watch of Attar Chand pursuant to the statement of Jagdish no reliance can be placed on the alleged recovery  after 45  days of  the  incident  did  not contain any  human blood, it does not in any way incriminate

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Ballu.      12. As we have found that the prosecution had concocted evidence regarding  the alleged  recoveries and  pursuant to the supported  statements of  Jagdish and  Ballu, we  do not think that  we will  be justified in placing any reliance to the alleged recovery of pistol and cartridge pursuant to the statement of Raj Kumar on April 19, 1986.      13. For the foregoing discussion we need not go into the question  whether prosecution had succeeded in proving that the appellants had a motive to commit the murders for proof of motive only would not lead the prosecution anywhere. In the conviction and sentence recorded against the three appellants under Section 302/34 IPC are set aside and they are acquitted. The appellant Raj Kumar is also acquitted of the charge of unlawful possession of a pistol and a cartridge. Appellant Ballu and Raj Kumar, who are on bail, are discharged from their respective bail bonds. Appellant Jagdish, who is on jail, be released forthwith unless wanted in connection with any other case.