Rajesh @ Sarkari & Anr. vs State of Haryana

Allowing the appeal, the Court

HELD: 1. The presence of PW-4 and PW-5

1.1 PW4, in the course of his cross-examination, stated that he, PW5 and “one unknown person” had lifted victim from the spot to take him to PGIMS. On the other hand, PW5, in the course of his deposition, does not mention the presence of any third person who took victim with them to the hospital. While PW4 states that the police reached the hospital at 4:00pm, PW5, on the other hand, is unaware of when the police had reached the hospital. Now, in this background, it is important to notice that there are clear improvements made by PW4 and PW5, which have a bearing on whether they were eyewitnesses to the alleged occurrence. Both PW4 and PW5 have made substantial improvements in the course of their examination in evidence. Both the witnesses attempted to bolster the case of the prosecution with regard to their presence at the scene of crime and of being eye-witnesses to the occurrence by stating that they had removed victim to the hospital after he had been gunned down. The absence of any reference to their taking victim to the hospital in the FIR has a bearing on whether they were eyewitnesses to the occurrence. The incident took place at the University where the deceased was a student and, according to PW4, was preparing for his supplementary law exams. The theory that PW4 and PW5 were present at the scene of offence and had removed the deceased to the hospital must be tested with reference to two significant circumstances which have emerged from the record. First, the record of the trial before the Sessions Court, which has been produced before this Court, indicates that the deceased was brought dead to PGIMS, Rohtak at 3:00pm. The ruqqa was sent to the police at 3:35pm. The ruqqa indicates that the deceased was brought by “’SL’ Resident of Kailash Colony, Rohtak”. The reference to ‘SL’ is a significant circumstance which indicates that neither PW4 nor PW5 were present at the scene of offence which is why, after the incident, it was not PW4 or PW5, but a third person who had transported the deceased victim to the hospital. The Sessions Court while appreciating this aspect, explained away the argument of the defence that neither PW4 nor PW5 were present at the scene of offence, by holding that perhaps both of them were present, but had suffered a shock of having witnessed the murder of victim which is why the ruqqa was signed by DW4. In arriving at this conclusion, the Sessions Court had supplied an explanation which does not comport with the case of the prosecution. Second, the case of the prosecution, it must be noted, was not that victim was taken to the hospital by two other persons who eventually were produced by the defence in evidence as DW4 and DW5. The case of the prosecution was that as a matter of fact PW4 and PW5 had taken victim to PGIMS, Rohtak. As noted earlier, PW4 stated that he, PW5 and an unknown person had done so, while PW5 stated it was only PW4 and him who had removed the injured to hospital. The defence produced, among other witnesses, DW4 and DW5. In the course of his examination, DW4 stated that he and DW5 had taken victim to the hospital and that PW4 and PW5 had arrived at the hospital after they reached there. DW4 stated that he and DW5 removed victim to PGIMS, Rohtak and it was about 10 to 15 minutes after their arrival at the hospital that PW4 and other relatives reached the hospital. Though the ruqqa mentioned the name of the person who brought the deceased to PGIMS as ‘SL’, resident of Kailash Colony Rohtak, the name of the person is evidently incorrect since it is ‘P’(DW4) who is the resident of Kailash Colony, Rohtak. DW4 and DW5 stated that it was them who had taken victim to the hospital and neither PW4 nor PW5 were present at the scene of the occurrence. [Para 17][24-E-H; 25-A-H]

2. FSL Reports

2.1 There are two FSL reports pertaining to FIR No. 311 and The third FSL report is with reference to a forwarding memo of the Deputy Superintendent of Police (HO Rohtak) dated 31 December 2006 regarding five sealed parcels in connection with FIR No. 781. [Para 21][27-F; 30-E-F]

2.2 In evaluating the third FSL report, three crucial aspects need to be flagged at this stage: first, the FSL report contains a comparison and analysis of what is described in the result as a “country made pistol marked W/2 chambered for 7.62mm cartridges”; second, the FSL report contains no reference to the pistol which was marked as W/1 in the second FSL report dated

25 September 2007 in reference to FIR No. 311 and third, the above extract under the result section indicates that pistol W/2 (which is the only pistol analysed) was recovered from ‘R’ in the course of the investigation in FIR No. 311. The above aspects have a crucial bearing on the weight to be ascribed to the third FSL report. [Para 22][32-E-G]

2.3 The three aspects highlighted demonstrate that, out of the alleged two recoveries of the pistols which were marked as W/1 and W/2 in the course of the investigation into FIR No. 311, only one of the two pistols, namely W/2, has been analysed with reference to the cartridges and fired bullets stated to have been recovered from the scene of offence in the present case. Pistol W/1, as the second FSL report dated 25 September 2007 in relation to FIR No. 311 indicates, was alleged by the prosecution to have been recovered at the behest of accused ‘R’ while pistol W/2 was allegedly recovered from accused ‘A’. The third FSL report in the present case contains a ballistics analysis of only one of the two pistols namely W/2 and not W/1. Moreover, the third FSL report contains an erroneous statement that W/2 was recovered at the behest of ‘R’ when, as this Court has seen, W/

2 is a recovery which the prosecution alleges to have been made from accused ‘A’ in the course of the investigation in the FIR No. 311. Pistol W/1 was, in other words, clearly not made available to the examiner for the purpose of a ballistic examination. [Para 23][32-G-H; 33-A-C]

2.4 Now in this background an important facet of the matter which requires to be noticed was that neither the author of the first and second FSL reports in the context of the seizure and recovery of weapons W/1 and W/2 in FIR No. 311; nor the author of the third FSL report in the context of FIR No.781 (the FIR in the 33 present case) have been examined by the prosecution in the course of the evidence. [Para 26][33-F-G]

2.5 There is no inflexible rule which requires the prosecution to examine a ballistics examiner in every case where a murder is alleged to have been caused with the use of a fire arm. The decision in Mohinder Singh (1953) has since been explained in Gurucharan Singh (1963) by a co-ordinate Bench. Thereafter, the principle which has emerged from the line of authority which we have noticed earlier, is that the failure of the prosecution in a given case, to examine a ballistics expert has to be assessed bearing in mind the overall context of the nature of the evidence which is available. When direct evidence of an unimpeachable character is available and the nature of injuries is consistent with the direct evidence, the examination of a ballistics expert need not be insisted upon as a condition to the prosecution proving its case. On the other hand, where direct evidence is not available or there is doubt in regard to the nature of that evidence, the failure to examine the ballistic examiner would assume significance. In the present case, the weapons of offence were alleged to have been recovered in the context of the investigation in another FIR (FIR No.311 dated 19 May 2006). The weapons were marked as W/1 and W/2 in that case. The third FSL report arising out of the investigation in FIR No. 781 in the present case does not deal with weapon W/1 at all. Moreover, as we have noted earlier, the third FSL report wrongly attributes weapon W/2 to accused ‘R’. Whether or not weapon W/2 had been made available to the ballistics examiner was a matter which could have been explained if the prosecution were to lead his evidence. The prosecution cited a ballistics examiner as a witness and yet, did not lead his evidence. This must be juxtaposed in light of the fact that the eye-witness account of PW4 and PW5 is not free from doubt. This Court has also analysed the evidence of PW4 and PW5 and have noted that there is a grave element of doubt as to whether they were witnesses at the scene of occurrence. In this context, the Court must therefore hold that the discrepancies which have been noticed in the FSL report could have best been explained by the authors of FSL reports both in FIR No. 311/2006 and FIR No. 781/2006. This not having been done, the accused would, in our view, be entitled to the benefit of doubt. [Para 34][38-H; 39-A-G]

3. Refusal to undergo Test Identification Parade

3.1 The State has sought to urge that out of all the three publications which were proved in the course of the evidence, only one contained the names of the accused. However, the central point in this case is whether on the basis of significant aspects which have emerged during the course of cross-examination of PW4 and PW5, an adverse inference should be drawn against the appellants for having refused to undergo a TIP. The evidence on the record indicates that not only did the deceased have several criminal cases against him, some of which had ended in acquittal on account of a compromise, but that one of the appellants, ‘R’, and the deceased were co-accused in a case arising out of FIR No. 341 dated 23 June 45 2001 under Sections 454 and 380 of the IPC. Evidently both of them had been arrested in connection with the case, which is why PW5 deposed that his father PW4 used to go to court when victim and ‘R’ were being produced on various dates of hearing. PW4 also stated that he has stood surety for his son in various criminal cases. In this backdrop, the contention of the appellants that the refusal to undergo a TIP is borne out by the fact that victim and ‘R’ were known to each other prior to the occurrence and that PW4, who is a prime eye-witness, had seen ‘R’ when he would attend the court during the course of the hearings, cannot be brushed aside. Consequently, in a case, such as the present, the Court would be circumspect about drawing an adverse inference from the facts, as they have emerged. In any event, the identification in the course of a TIP is intended to lend assurance to the identity of the accused. The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade. In the present case, the presence of the alleged eyewitnesses PW4 and PW5 at the scene of the occurrence is seriously in doubt. The ballistics evidence connecting the empty cartridges and the bullets recovered from the body of the deceased with an alleged weapon of offence is contradictory and suffers from serious infirmities. Hence, in this backdrop, a refusal to undergo a TIP assumes secondary importance, if at all, and cannot survive independently in the absence of it being a substantive piece of evidence. [Para 39][43-B-H; 44-A]

Mohinder Singh vs. State, AIR 1953 SC 415; Sukhwant Singh vs. State of Punjab, (1995) 3 SCC 367 : [1995] 2 SCR 1190; State of Punjab vs. Jugraj Singh, (2002) 3 SCC 234 : [2002] 1 SCR 998; Vineet Kumar Chauhan vs. State of UP, (2007) 14 SCC 660 : [2007] 13 SCR 727; Govindaraju vs. State, (2012) 4 SCC 722: [2012]

5 SCR 67 – relied on.

State of Rajasthan v. Daud Khan, (2016) 2 SCC 607 : [2015] 13 SCR 1131; Mohan Suingh vs. State of M.P. (1999) 2 SCC 428 : [1999] 1 SCR 276; Gurucharan Singh vs. State of Punjab, [1963] 3 SCR 585; Matru v. State of U.P. (1971) 2 SCC 75 : 1971 SCC (Cri) 391] : [1971] 3 SCR 914; Santokh Singh v. Izhar Hussain (1973) 2 SCC 406 : 1973 SCC (Cri) 828; Malkhansingh v. State of M.P. (2003) 5 SCC 746:2003 SCC (Cri) 1247; Visveswaran v. State (2003) 6 SCC 73; Munshi Singh Gautam v. State of M.P. (2005) 9 SCC 631; Sidhartha Vashisht@ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1; Ashwani Kumar and Ors. v. State of Punjab (2015) 6 SCC 308; Mukesh and Ors. v. State for NCT of Delhi and Ors. AIR 2017 SC 2161 – referred to.