JALPAT RAI & ORS.versusSTATE OF HARYANA

                  (2011] 7 S.C.R. 1037


                   JALPAT RAI & ORS.                          A
                            v.
                  STATE OF HARYANA
           (Criminal Appeal No. 1736 of 2007)
                      JULY 06, 2011
                                                              B
         [AFTAB ALAM AND R.M. LODHA, JJ.]

     Penal Code, 1860: s. 302 rlw s. 149 and s. 148 - Fire shots
resulting in death of three persons - Conviction of A-2 uls. 302
and s. 27 of Arms Act, 1959 and acquittal of the other accused C
(appellants) by trial court on the ground that the ocular
testimony of prosecution witnesses was not reliable and was
contradictory to the report of the ballistic expert - High Court
held that the evidence of prosecution witnesses was cogent,
convincing and truthful and convicted appellants uls. 148 and D
s. 302 r/w s. 149 - On appeal, held: Prosecution witnesses were
closely related to the three deceased - Their evidence
showed their long standing rivalry with accused party - Thus,
prosecution witnesses were not only much interested in the
prosecution case but they were inimically disposed towards E
the accused party as well - No other independent witness was
examined although the incident occurred in a busy market
area - At the place of occurrence, one wrist watch, one betcha
and four pair of chappals were also found - There was no
explanation at all by the prosecution with regard to these F
articles - These circumstances instead of lending any
corroboration to the evidence of the three key witnesses,
rather suggested that they had not come out with the true and
complete disclosure of the incident - The evidence of
prosecution witnesses was to tl1e effect that there was G
indiscriminate firing by the accused party at the complainant
party - However, at the place of occurrence, only three
empties were found - Moreover, at the scene of occurrence,
there were no marks of indiscriminate firing - The ballistic
                           1037                               H
    1038    SUPREME COURT REPORTS                  [2011) 7 S.C.R.


A report recorded that the crime bullets and the cartridge cases
  were fired by the pistol recovered from A-2 only - The
  testimony of prosecution witnesses about the role of
  appellants, thus, was not corroborated by medical and ballistic
  evidence - The deposition of prosecution witnesses suffered
B from significant improvements and omissions as well -
  Serious infirmities in the evidence of the eye-witnesses
  indicated that their evidence was not wholly true and it was
  unsafe to act on their evidence insofar as complicity of
  appellants was concerned - Appellants were entitled to
c benefit of doubt - The order of acquittal passed by trial court
  in favour of appellants is restored.

        Appeal: Special leave petition - Held: Mere dismissal of
   SLP does not amount to acceptance of correctness of High
   Court decision - A-2 was convicted by trial court for the
D offence u/s.302 IPC but High Cowt altered his conviction from
   s.302 to s.302 /PC r.w. s.149 /PC and his SLP against that
  judgment was dismissed summarily - Dismissal of SLP
   summarily did not mean affirmance of the judgment of the
   High Court on merits - The order of Supreme Court in A-2's
E SLP is not an impediment in allowing the appeals of
   appellants once it is held that prosecution had failed to prove
   the complicity of the appellants beyond any reasonable doubt
  - It is incorrect to state that since A-2 had a right of appeal ul
   s.2 of the 1970 Act, therefore, the order of Supreme Court
F dismissing the SLP preferred by him was non-est - The case
   against A-2 stood on a different footing - The ballistic
   evidence was conclusive against him and there was no doubt
   about his involvement in the crime - Jjudgment of the High
   Court as regards the appellants set aside and judgment of
G acquittal passed in their favour by the trial court is restored -
   Supreme Court (enlargement of criminal appellate
  jurisdiction) Act, 1970 - s.2.

        Witnesses: Interested witness - Evidentiary value of -
    Held: The evidence of eye-witnesses, irrespective of their
H
    JALPAT RAI & ORS. v. STATE OF HARYANA               1039


interestedness, kinship, standing or enmity with the accused,   A
if found credible and of such a caliber as to be regarded as
wholly reliable can be sufficient and enough to bring home
the guilt of the accused.

      The prosecution case was that on the fateful day, 8
PW-1 and another person were sitting in their office. At
that time, A-2, A-3, A-4 all sons of A-1 came near their
office. They were all armed with firearms. PW-1
suspected their movement as he had previous business
rivalry with A-2 and his family. After about 10-15 minutes, C
A-1 also came their on a motorcycle. He too was carrying
firearm. Fearing danger, PW-1 telephoned his brother PW-
4 who along with his nephews reached the office of PW-
1 in about 10-15 minutes. The complainant party closed
the office and while they were leaving for their homes, A•
2 fired one shot from behind with a licensed pistol. PW-1 D
and his nephews ran towards A-2 to catch him but A-2
fired another shot from his pistol that hit 'Ch' on the left
side of his chest. A-4 fired a shot from the pistol he was
carrying which hit 'S' on the left side of his chest. A-3 and
A-1 then started firing shots from their firearms. A-2 and E
A-4 repeated firing from their firearms. As a result of the
shots fired by A-2 and A-4, PW-4 and 'P' received injuries.
'P', 'Ch', 'S' and PW-4 fell on the ground. A-5 gave the
sword blow to PW-8. All the accused persons then fled
from the spot. The injured were taken to hospital. On way F
to the hospital, 'Ch' and 'S' succumbed to the injuries and
died. 'P' died 4 days after the incident

     The trial court convicted A-2 under Section 302 IPC
and Section 27 of Arms Act, 1959. It however acquitted          G
the appeilants holding that the ocular testimony of PW-
1,. PW-4 and PW-8 was not reliable and was contradictory
to the report of the ballistic expert. On appeal, the High
Court held that the evidence of PW-1, PW-4 and PW-8 in
totality was c9gent, convincing and truthful. It allowed the    H
    1040   SUPREME COURT REPORTS             [2011) 7 S.C.R.


A appeal of the State and convicted A1, A-3, A-4, A-5, A-6
  under Section 148 and Section 302 r/w Section 149 IPC.
  A-5 was also convicted under Section 323 IPC.

      A-1, A-3 to A-6 were the appellants in the instant
8 appeals filed under Section 2 of the Supreme Court
  (enlargement of criminal appellate jurisdiction) Act, 1970.
  A-2 had filed special leave petition against conviction
  which was dismissed summarily by Supreme Court.

        Allowing the appeals, the Court
c
         HELD: 1.1. PW-1 and PW-4 were real brothers. PW-8
    and the deceased were nephews of PW-1 and PW-4. The
    presence of PW-1, PW-4 and PW-8 at the time of incident,
    did not appear to be doubtful. The trial court's reasoning
0   for doubting the presence of PW-1 at the place of
    occurrence is not convincing. Being transporter, the
    presence of PW-1 in his office at about 9.00 p.m. was not
    unnatural. Absence of any injury on his person would not
    render his presence doubtful. The presence of PW-4 and
E   PW-8 at the time of incident also cannot be doubted. Both
    of them suffered injuries. Both, PW-4 and PW-8, were ,
    medically examined by PW-6. PW-4 was examined by PW-
    6 immediately after the incident. PW-8 was examined by
    PW-6 on the next day. The trial court doubted that the
F   injury suffered by PW-4 was from the firearm but the
    evidence of the doctor (PW-19) showed that PW-4
    received firearm injury in the incident. PW-19 deposed
    that PW-4 was operated upon for a firearm injury in the
    abdomen and the firearm was used from a close range.
    However, the presence of PW-1, PW-4 and PW-8 at the
G   time of incident did not guarantee truthfulness. [Para 37]
    [1062-G~H; 1063-A-D]

      1.2. The evidence of PW-1, PW-4 and PW-8 that PW-
  1 had a long standing rivalry with A-1 in connection with
H Truck Owners' Union. Their rivalry had led to many
       JALPAT RAI & ORS. v. STATE OF HARYANA               1041


   criminal cases being filed against each other. PW-1 was A
   prosecuted earlier for causing injuries to A-1 and others.
   About 20 days prior to the incident, an FIR was registered
   against PW-1 and his partner under Sections 323, 506,
   148 and 454 IPC. In that incident, A-2 was an eye-witness.
   Two days later, PW-1 reported to the police against A-2, B
   A-3, A-4 and A-5 by way of counter case but police did
    not take any action. A complaint was then lodged by PW-
   1 party against A-2, A-3, A-4 and A-5 in the Court of
   Additional Chief Judicial Magistrate. PW-1, PW-4 and PW-
   8 were, therefore, not only much interested in the c
    prosecution case but they were inimically disposed
   towards the accused party as well. The deep rooted
   enmity and serious disputes between PW-1 on the one
   hand and A-1 and his sons on the other and their
    unflinching interest in the prosecution case necessitated 0
1
   consideration of the evidence of PW-1, PW-4 and PW-8
   with care and caution. To find out intrinsic worth ofthese ·
    witnesses, it is appropriate to test their trustworthiness
    and credibility in light of the collateral and surrounding.
  , circumstances as well as the probabilities and in
   ,conjunction with all other facts brought out on record. E
   There cannot be a rule of universal application that if the
    eye-witnesses to the incident are interested in
    prosecution case and/or are disposed inimically towards
    the accused persons, there should be corroboration to
    their evidence. The evidence of eye-witnesses, F
    irrespective of their interestedness, kinship, standing or
    enmity with the accused, if found credible and of such a
    caliber as to be regarded as wholly reliable could be
    sufficient and enough to bring home the guilt of the
    accused. But it is reality in life, albeit unfortunate and sad, G
    that human failing tends to exaggerate, over-implicate
    and distort the true version against the person/s with
    whom there is rivalry, hostility and enmity. Cases are not
    unknown where entire family is roped in due to enmity
    and simmering feelings although one or only few H
    1042    SUPREME COURT REPORTS              [2011] 7 S.C.R.


A members of that family may be involved in the crime. In
  the circumstances of the instant case, to obviate any
  chance of false implication due to enmity of the
  complainant party with the accused party and the
  interestedness of PW-1, PW-4 and PW-8 in the
B prosecution case, it is prudent to look for corroboration
  of their evidence by medical/ballistic evidence and seek
  adequate assurance from the collateral and surrounding
  circumstances before acting on their testimony. The lack
  of corroboration from medical and ballistic evidence and
c the circumstances brought out on record may ultimately
  persuade that in fact their evidence cannot be safely acted
  upon. [Paras 38, 39) [1063-F-H; 1064-A-H; 1065-A]

         1.3. Besides PW-1, PW-4 and PW-8, who were closely
    related to the three deceased, no other independent
D   witness was examined although the incident occurred in
    a busy market area. The place of occurrence was visited
    by the sub-inspector PW-20 in the same night after the
    incident. He found three two-wheelers and one Maruti car
    with broken glasses. The owners of these vehicles were
E   not examined. At the place of occurrence, one wrist
    watch, one belcha and four pair of chappals were also
    found. There was no explanation at all by the prosecution
    with regard to these articles. Nothing came on record
    whether four pair of chappals belonged to the accused
F   party or the complainant party or some other persons and
    whether wrist watch that was found at site was worn by
    one of the accused or one of the members of the
    complainant party or somebody else was not known.
    Then, the mystery remained about betcha that was found
G   at site. These circumstances instead of lending any
    corroboration to the evidence of those three key
    witnesses, rather suggested that they have not come out
    with the true and complete disclosure of the incident. The
    evidence of PW-1, PW-4 and PW-8 was to the effect that
H   there was indiscriminate firing by the accused party at the
    JALPAT RAI & ORS. v. STATE OF HARYANA               1043


complainant party. Four members of the accused party             A
- A-1, A-2, A-3 and A-4 were armed with firearms.
According to these witnesses, all of them fired shots from
the firearms they were carrying. The first shot was fired
by A-2 from the pistol he was carrying (although in the
FIR it is recorded that A-2 was armed with revolver but          B
this inconsistency is not very material). That shot did not
hit anyone. A-2 then again fired shot that hit 'Ch'. A-4 fired
a shot with pistol that hit Sunil. A-3 and A-1 fired shots
from their guns and A-2 and A-4 also fired shots from the
pistols causing injuries to 'P' and PW-4. However, at the        c
place of occurrence, only three empties were found. Had
the firing taken place in the manner deposed by PW-1,
PW-4 and PW-8, obviously there should have been more
empties at the place of occurrence. It is conjectural to
assume, as was done by High Court, that the                      0
Investigating Officer was not able to recover more than
three empties because the occurrence took place in
'chowk' and by the time he reached at the site, a lot of
traffic must have passed there. Moreover, at the scene of
occurrence, there were no marks of indiscriminate firing.        E
[Paras 40, 41] [1065-B-H; 1066-A-C]

     2. The medical evidence was clear and specific that
the three deceased received one firearm injury each. The
blackening and singeing injuries leave no manner of
doubt that shots were fired at the deceased persons from         F
a very close range. As a matter of fact, medical evidence
is categorical to that effect. However, the ocular account
given by PW-1, PW-4 and PW-8 did not indicate that. The
ballistic· report recorded unambiguously and
unequivocally that the crime bullets and the cartridge           G
cases were fired by the pistol stated to have been
recovered from A-2 and no other firearm. The cartridge
cases and the crime bullets have positively matched to
7.65 mm pistol no. 109033-2002. This pistol was licensed
pistol of A-2 and was recovered from him in dismantled           H
    1044    SUPREME COURT REPORTS              (2011] 7 S.C.R.


A condition with parts separated in three pieces. The
  ballistic evidence was clearly in conflict with the evidence
  of PW-1, PW-4 and PW-8 and shattered their evidence
  completely vis-a-vis the appellants. The testimony of PW-
  1, PW-4 and PW-8 about the role of appellants, thus, was
B not corroborated by medical and ballistic evidence. Their
  evidence also did not get support from the collateral
  circumstances that came on record. [Paras 42, 43] [1066·
  D-H; 1067-8]

         3.1. The deposition of PW-1, PW-4 and PW-8 suffered
C   from significant improvements and omissions as well.
    PW-1 deposed that he did not tell the police that A-3 had
    fired from his .12 bore licensed gun, A-1 had fired from
    .22 rifle of A-2 and A-4 had fired from .32 licensed pistol
    of A-3 but when he was confronted with portion A to A
D   of his statement (Ex. DA) before police, it was found that
    it was so recorded. He testified that he had stated in his
    statement to the police that A-5 had caused injuries to
    PW-8 but when confronted with that statement, it was
    found that it was not so stated. PW-4 deposed that he
E   had told the police that A-4 had fired at A-3 from his
    revolver but when confronted with that statement, it
    transpired that it was not so stated. He also deposed that
    he had told the police that A-5 had given a sword blow
    to PW-8 on his temple but when he was confronted with
F   that statement, it was found that it was not so stated. PW·
    8 deposed that he had stated before the police that the
    sho\s fired by A-3 and A-1 from their guns did not hit
    anyone but when confronted with that statement, it
    transpired that he had not so stated. As regards arrival
G   of A-5 at the place of occurrence, the evidence of PW-1
    and PW-8 was not consistent. PW-1 has deposed that A·
    5 was also present with the other accused when the
    incident started; he was armed with sword and caused
    injuries with the sword to PW-8. PW-8, on the other hand,
H   stated that A-5 descended on the scene of occurrence
     JALPAT RAI & ORS. v. STATE OF HARYANA              1045


after firing had started. [Paras 44, 45) [1067-C-H; 1068-A]      A
     3.2. Serious infirmities in the evidence of the eye-
witnesses (PW-1, PW-4 and PW-8) indicated that their
evidence at any rate was not wholly true and it was
unsafe to act on their evidence insofar as complicity of         8
A-1, A-3, A-4, A-5 and A-6 is concerned. Brushing the
impact of these infirmities aside , the High Court
erroneously treated the evidence of PW-1, PW-4 and PW-
8 cogent, convincing and truthful. All in all, the evidence
of PW-1, PW-4 and PW-8 lacked in credibility and was not         C
of sterling worth to prove the involvement of A-1, A-3, A-
4, A-5 and A-6 in the crime beyond any reasonable doubt.
As regards A-6, as a matter of fact, it was conceded by
the counsel for the State that there was no reliable
evidence to prove his involvement in the crime. The
appellants were entitled to benefit of doubt. [Para 46)          D
[1068-B-D]
       4. Incidentally, two sons of A-1 were also shown as
  assailants in the FIR. In the investigation, their presence
, was not established; they were not charge-sheeted. PW-         E
  1, PW-4 and PW-8, however, in their deposition before the
  Court made an attempt to implicate them. Based on their
  deposition, the public prosecutor made an application
  under Section 319 of Cr.P.C. for summoning those two
  sons of A-1 but that application was eventually                F
  withdrawn. This by itself has not much bearing in the
  case. What it shows is that there has been attempt by
  PW-1, PW-4 and PW-8 right from the inception to rope in
  A-1 and all his sons in the incident irrespective of whether
  all of them were involved in the crime or not. [Para 47]       G
  [1068-E-G]

     5. A-2 was convicted by the trial court for the offence
 under Section 302 IPC but the High Court altered his
 conviction from Section 302 to Section 302 IPC read with
 Section 149 IPC and his special leave petition (SLP)            H
    1046   SUPREME COURT REPORTS               (2011] 7 S.C.R.


A against that judgment was dismissed summarily. The
  dismissal of SLP summarily did not mean affirmance of
  the judgment of the High Court on merits. Mere dismissal
  of SLP does not amount to acceptance of correctness of
  the High Court decision. The order of this Court in A·2's
B SLP is not an impediment in allowing these two appeals
  once it is held that prosecution has failed to prove the
  complicity of the appellants beyond any reasonable
  doubt. It is incorrect to state that the SLP preferred by A-
  2 was non-est since he had a right of appeal under
c Section 2 of the Supreme Court (enlargement of criminal
  appellate jurisdiction) Act, 1970 and, therefore, the order
  of this Court dismissing the SLP preferred by A-2 is also·
  a non-est. The case against A-2 stands on a different
  footing. The ballistic evidence is conclusive against him
  and leaves no manner of doubt about his involvement in
0
  the crime. The judgment of the High Court as regards the
  appellants is set aside. The judgment of acquittal passed
  in their favour by the trial court is restored. [Paras 48-50)
  [1068-H; 1069-A·F]

E      Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450:
  2008 (11) SCR 499; Mahtab Singh and Anr. v. State of Uttar
  Pradesh (2009) 13 SCC 670: 2009 (5) SCR 848;
  Balakrushna Swain v. State of Orissa (1971) 3 SCC 192;
  Balak Ram v. State of U.P. (1975) 3 SCC 219: 1975 (1) SCR
F 753; Vijaybhai Bhanabhai Patel v. Navnitbhai Nathubhai
  Patel & Ors. (2004) 10 SCC 583; Darshan Singh v, State of
  Punjab & Anr. (2010) 2 SCC 333: 2010 (1) SCR 642; Khima
  Vikamshi and others v. State of Gujarat (2003) 9 SCC 420;
  Ba/wan Singh v. State of Haryana (2005) 11 SCC 245; Brijpal
G Singh v. State of MP. (2003) 11 SCC 219; Mahendra Pratap
  Singh v. State of Uttar Pradesh. (2009) 11 SCC 334: 2009
  (2)'SCR 1033; UP. v. Moti Ram and others (1990) 4 SCC
  389: 1990 (2) SCR 939; Deepak Kumar v. Ravi Virmani &
  Anr. (2002) 2 SCC 737: 2002 (1) SCR 786; Asif Mamu v.
H State of Madhya Pradesh. (2008) 15 SCC 405; Harbans
    JALPAT RAI & ORS. v. STATE OF HARYANA             1047


Singh v. State of Uttar Pradesh and others (1982) 2 SCC 101:   A
1982 (3) SCR 235; A.R. Antulay v. R.S. Nayak and another
(1988) 2 SCC 602: 1988 (1) Suppl. SCR 1; Raja Ram and
Ors. v. State of M.P. (1994) 2 SCC 568: 1994 (2) SCR 114;
Akhil Ali Jehangir Ali Sayyed v. State of Maharashtra (2003)
2 SCC 708; Shingara Singh v. State of Haryana & another        B
(2003) 12 sec 758 - referred to.
                    Case Law Reference:
    2008 (11) SCR 499          referred to     Para 25, 29
    2009 (5) SCR 848           referred to     Para 25
                                                               c
    (1971) 3 sec 192           referred to     Para 28
    1975 (1) SCR 753           referred to     Para 28
    (2004) 1o sec 583          referred to     Para 28         D
    2010 (1) SCR 642           referred to     Para 28, 29
    (2003) 9 sec 420           referred to     Para 30
    (2005) 11 sec 245          referred to     Para 30         E
    (2003) 11 sec 219          referred to     Para 30 ·
    2009 (2) SCR 1033          referred to     Para 30
    1990 (2) SCR 939           referred to     Para 30
                                                               F
    2002 (1 ) SCR 786          referred to     Para 30
    (2008) 15 sec 405          referred to     Para 30
    1982 (3) SCR 235           referred to     Para 31
    1988 (1) Suppl. SCR 1      referred to     Para 31\        G

    1994 (2) SCR 114           referred to     Para 31
    (2003) 2 sec 108           referred to     Para 31
    c2003) 12 sec 758          referred to     Para 31         H
    1048     SUPREME COURT REPORTS                  [2011) 7 S.C.R.


A       CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
    No. 1736 of 2007.
      From the Judgment & Order dated 20.9.2006 of the High
  Court of Punjab & Haryana at Chandigarh in Criminal Appeal
B No. 95-DBA.
                                 WITH
    Criminal Appeal No. 1306 of 2006.
     Sushil Kumar, Sanjay Jain, Vinay Arora, Aditya Kumar,
C Anmol Thakral, Arun Bhardwaj, S.S. Shamshery (for Dr. Kailash
  Chand) for the Appellants.
       June Chaudhari, Harikesh Singh, Tarjit Singh (for Kamal
    Mohan Guptaj for the Respondent.
D        The Judgment of the Court was delivered by
         R.M. LODHA, J. 1. On October 2, 2002 two persons -
    Sunil and Chand - were shot dead and three persons -
    Pawan, Rohtas and Rakesh - got injured in the town of Jind
    (Haryana). One of the injured, Pawan died after three days. In
E   connection with that incident, six persons-Jalpat Rai (A-1),
    Shyam Sunder (A-2), Satish Kumar (A-3), Purshotam (A-4),
    Harinder alias Kala (A-5) and Pawan (A-6) - were tried by the
    Additional Sessions Judge, Jind for the offences punishable
    under Section 148, Section 302 read with Section 149, Section
F   307 read with Section 149 and Section 323 read with Section
    149 IPC. Four of them were also charged for the offence
    punishable under Section 27 of the Arms Act, 1959. The trial
    court vide its judgment dated November 20, 2004 convicted A-
    2 under Section 302 IPC and sentenced him to suffer life
G   imprisonment and imposed a fine of Rs.25000/- with default
    stipulation. A-2 was also convicted for the offence under
    Section 27 of the Arms Act, 1959 and sentenced to undergo
    imprisonment for a term of one year with a fine of Rs.1 ODO/-
    with default stipulation. The trial court acquitted A-1, A-3, A-4,
H   A-5 and A-6 of all the charges.
    JALPAT RAI & ORS. v. STATE OF HARYANA                   1049
                [R.M. LODHA, J.]

     2. Against the judgment of the trial court, two criminal        A
appeals and one criminal revision came to be filed before the
High Court of Punjab and Haryana. The State preferred appeal
being Criminal Appeal No. 95-DBA of 2006 aggrieved by the
acquittal of A-1, A-3, A-4, A-5 and A-6. The complainant party
filed a criminal revision being Criminal Revision No. 578 of         B
2005 against the acquittal of the five accused and for
enhancement of sentence. A-2 preferred criminal appeal being
Criminal Appeal No. 42-DB of 2005 against his conviction.

       3. The High Court heard all the three matters together and
by a common judgment dated·September 20, 2006; allowed               C
the appeal of the State and convicted A-1, A-3, A-4, A-5 and
A-6 under Section 148 and Section 302 read with Section 149
IPC. A-5 was also convicted under Section 323 IPC. All these
five accused have been sentenced to undergo imprisonment
for life. A fine of Rs. 10,000/- with default stipulation was also   D
imposed on them. Insofar as A-2 is concerned, the High Court
modified his conviction from Section 302 to Section 302 read
with Section 149 IPC while maintaining the sentence awarded
to him by the trial court. In light of the judgment in the appeal
preferred by the State, the criminal revision preferred by the       E
complainant party was dismissed.

     4. A-1, A-3, A-4, A-5 and A-6 are the appellants in the two
appeals before us filed under Section 2 of the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970 (for      F
short, '1970 Act'). A-2 filed special leave petition against his
conviction which came to be dismissed by this Court
summarily.

     5. The prosecution case in regard to the incident leading .
to the triple murder is this: On October 2, 2002 at about 9.00 G
p.m., Sewa Singh (PW-1) and one Subhash Gaba were sitting
in their office (Nav Bharat Transport Company) situate at
Phuara Bazar, Jind. At that time, A-2, A-3 and A-4, all sons of
A-1, passed in front of their office and went towards Chamber
Dharamshala. They were armed with firearms. PW-1 suspected H
    1050    SUPREME COURT REPORTS                  [2011] 7 S.C.R


A their movement as he had long standing truck owners' union
  rivalry with A-2 and his family. PW-1 came out of his office and
  saw that A-2 was talking with someone on mobile phone. After
  about 10/15 minutes, A-1 came there on a motorcycle. He, too,
  carried firearm with him and was accompanied by a boy.
B Sensing some danger from A-1, A-2, A-3 and A-4, PW-1
  telephoned his brother Rohtas (PW-4) who along with his
  nephews Chand, Sunil, Pawan, Arun and Rakesh (PW-8)
  reached the office of PW-1 in about 10/15 minutes. PW-1 told
  his brother (PW-4) that A-1 and his sons had gathered nearby
c and might commit some mischief. On the advise of PW-4, the
  office was closed and PW-1, PW-4, their nephews and
  Subhash Gaba left for their homes. Hardly had they started that
  A-2 fired one shot from behind with a licensed pistol which he
  was carrying. PW-1 and his nephews ran towards A-2 to catch
0 him but A-2 fired another shot from his pistol that hit Chand on
  the left side of his chest. A-4 fired a shot from the pistol he was
  carrying which hit Sunil on the left side of his chest. A-3 and A-
  1 then started firing shots from their guns. A-2 and A-4 repeated
  firing from their firearms. As a result of the shots fired by A-2
E and A-4, PW-4 and Pawan received injuries. Pawan, Chand,
  Sunil and PW-4 fell on the ground. A-5 who was armed with
  sword gave the sword blow to PW-8. All the accused persons
  then fled from the spot.

       6. After the firing, few persons gathered at the place of
F occurrence and took the injured persons-Chand, Sunil, Pawan
  and PW-4 to the General Hospital, Jind for treatment. On way
  to the hospital, Chand and Sunil succumbed to the injuries and
  died. Pawan and PW-4 were referred to PGI, Rohtak for further
  treatment. PW-1 had also informed the Control Room of the
G incident.

         7. At about 11.30 p.m., the doctor on duty at General
    Hospital, Jind sent two rukkas (Ex. PP and Ex. PQ) to the Police
    Station City, Jind informing them that Sunil and Chand were
    brought dead while Pawan and PW-4 were brought injured. On
H
    JALPAT RAI & ORS. v. STATE OF HARYANA                    1051
                [R.M. LODHA, J.]

receipt of the two rukkas, Haricharan (PW-20) who was Sub-            A
Inspector left the Police Station for General Hospital, Jind along
with two constables. At the main gate of the General Hospital,
PW-20 met PW-1 who gave his statement which was reduced
into writing. Based on the statement of PW-1, the first
information report was registered in the midnight at 12.30 a.m.       B
(October 3, 2002) under Sections 302/307/148/149. IPC and
the Arms Act.

     8. PW-20 commenced investigation and visited the place
of occurrence. The office of Nav Bharat Transport Company is          C
adjacent to the Chamber Dharamshala situate in the busy
market area which has shops, offices and hospitals. The
Chamber Dharamshala has seven shops, four on the one side
and three on the other. At the place of occurrence, PW-20
recovered one belcha, one sword, four pair of chappals, one
Maruti car, one scooter, two Hero Honda motorcycles (one of           D
which was without registration number), one wrist watch and
three empties of used .32 calibre bullets. PW-20 also conducted
inquest on the dead bodies of Chand and Sunil on October 3,
2002 before they were handed over for autopsy.
                                                                      E
     9. Dr. Kuldeep Singh Rana (PW-5), Medical Officer,
General Hospital, Jind conducted the post-mortem examination
on the dead body of Sunil on October 3, 2002 at 9.00 a.m. In
the post-mortem report, he recorded as follows :

     "There is a penetrating entry wound 0.75 cm in diameter
                                                                      F
     over the left side of chest, 2.5 cm below and slightly lateral
     to the left nipple. Margins are inverted, tattooing around the
     wound present in about 3-4 mm. surrounding the wound.
     Corresponding part of shirt torned.
                                                                      G
           On dissection find that the bullet has followed the
     path starting with anterior chest wall, traversing the left
     anterior pleura, middle lob of left lung which was lacerated,
     then passing through the left ventricle of heart and coming
     out through the right ventricle posteriori and bullet found      H
    1052    SUPREME COURT REPORTS                      [2011) 7 S.C.R.


A       stucked in the muscles just lateral to sixth thoracic
        vertebrae of left side.

             1.5 liter of dark clotted blood found in the mediastinal
        and pleural cavity."
B         In the opinion of PW-5, the cause of death of Sunil was
    due to sh.ock and haemorrhage because of firearm injuries to
    vital organs. He opined that the injuries were ante mortem and
    sufficient to cause death in normal course of nature.

c        10. On the same day at about 9.30 a.m., PW-5 conducted
    post-mortem examination on the dead body of Chand. He found
    the following injury on the dead body of Chand:

        "There is a penetrating wound 0.75 cm in diameter on the
        left mid axillary line between 71 8 inter-costal space.
D       Margins are inverted tattooing in 3-4 mm. area surrounding
        the wound.

               On dissection, path traversed by the bullet is as
        lateral of left chest wall to lateral left pleural cavity and left
E       lung which is highly lacerated, then to right pleural cavity
        and right lung which was lacerated, then bullet found
        stucked in muscle of right lateral wall of chest at level of 71
        8 inter-costal space or posterior border of axillary space.n

F        In the opinion of PW-5, the cause of de~th of Chand was
    due to shock and haemorrhage because of firearm injury to vital
    organs.

      11. Pawan was medically examined by Dr. Rajesh Gandhi
  (PW-6) on October 2, 2002 at about 10 p.m. as soon as he
G was brought to the General Hospital, Jind. On the person of
  Pawan, PW-6 found the following injury:

        "Deep penetrating wound on anterior surface of chest; 2cm
        medial to left nipple and 1 cm below nipple. Margins were
H       inverted. Singeing is present.. ....... n
        JALPAT RAI & ORS. v. STATE OF HARYANA                1053
                    [R.M. LODHA, J.]

        He advised X-ray and Surgeon's opinion.                       A

        12. PW-6 also examined PW-4 on October 2, 2002 at
    about 10.15 p.m. and found the following injury on his person:

        "Deep penetrating wound is present on the Abdomen in
        the centre, 3 cm above the symphysis pubis. Margins are       B
        inverted. Blackening is present. Size : 1 x .5 c.m ..... ."

        13. PW-6 examined. PW-8 on October 3, 2002 at about
    3.40 p.m. and the following injury was found on his person.

        "Lacerated wound on the right side of skull 6 cm above
                                                                      c
        ear margin, placed vertically, size : 2 x 1 x muscle
        deep ...... .".

         14. On October 5, 2002, the investigation of the case was
    entrusted to Inspector Wazir Singh (PW-23). He conducted          D
    further investigation. PW-23 sought to record the statements of
    PW-4 and injured Pawan but both were not fit to give
    statements. Pawan succumbed to injuries on October 6, 2002
    and his statement could not be recorded.
                                                                      E
         15. The post-mortem examination on the dead body of
r   Pawan was conducted by Dr. R.K. Nandal (PW-9) on October
    6, 2002. At the time of post-mortem examination, he fou.nd the
    following injuries on the body of Pawan:

          "1.    A wound on front of Abdomen stitched with 16         F
                stitches.

          2.    An oval punctured wound of size 1 x .75 cm.
                Blackening present : 5 cm lateral to mid sternum
                and 3 cm medio inferior to left nipple.               G
          3.    The bullet was directed downwards and inward
                piercing the structure left lung diaphragm and
                stomach and thereby lodged with anterior chest wall
                at the level of T 11 vertebra.             ·
                                                                      H
    1054        SUPREME COURT REPORTS               [2011] 7 S.C.R.

A          4.     Two stitched wounds in the stomach.

           5.    Two stitched wounds on left side of chest and left
                 iliac region for draining.

           6.     Haemo thorax and Haemo peritoneum present.•
B
         In his opinion, the cause of death of Pawan was firearm
    injury which had caused haemo peritoneum and haemo thorax
    thereby leading to shock.

C       16. The statement of PW-4 was recorded by PW-23 on
    October 8, 2002.

        17. PW-23 arrested A-1 on October 14, 2002 while A-2
  and A-3 were arrested on October 26, 2002. Based on the
  disclosure statement of A-2, PW-23 recovered one licensed
D pistol of .32 bore and one licensed rifle of .22 bore. In pursuance
  of the disclosure statement of A-3, one licensed pistol of .32
  bore and one rifle of .12 bore were recovered by PW-23.

       18. The bullets recovered from the dead bodies, the
E empties of bullets picked up by PW-20 from the place of
  occurrence, the firearms seized pursuant to disclosure
  statements and the clothes of dead persons were sent for
  forensic/ballistic examination by PW-23 on November 14, 2002
  to the Forensic Science Laboratory Haryana, Madhuban
F (Kamal).

      19. On completion of investigation, the challan was
  submitted against A-1, A-2, A-3, A-4, A-5 and A-6 in the Court
  of Chief Judicial Magistrate, Jind who, by his order dated
  January 7, 2003, committed them for trial by the Court of
G Sessions, Jind.

         20. The Sessions Judge, Jind framed the charges against
    the six' accused persons (A-1, A-2, A-3, A-4, A-5 and A-6) on
    April 18, 2003 as follows :
H
JALPAT RAI & ORS. v. STATE OF HARYANA                  1055
            [R.M. LODHA, J.]

 "That on 2.10.2002 at about 10 p.m., in the area of City       A
  Jind, you all the accused were members of an unlawful
  assembly, and did, in prosecution of the common object
  of such assembly, and at that time you were armed with
  deadly weapons and thereby committed an offe.nce of
  rioting punishable under- Section 148 of the Indian Penal     B
  Code-·and
____ . ..-
             within the cognizance of this court.    ·

.· That, secondly, on the aforesaid date, time and place, you
   all the accused in prosecution of common object of such
   unlawful assembly, did commit murder by intentionally        C
   causing the death of Chand Singh, Sunil Kumar and
   Pawan Kumar, residents of Subhash Nagar, Jind, and
   thereby committed an offence punishable under Section
   302 IPC read with Section 149 IPC and within the
   cognizance of this court.
                                                                D
 That, thirdly, on the aforesaid date, time and place and in
 prosecution of common object of such unlawful assembly,
 you all the accused caused injuries to Rohtas with such
 intention or knowledge and under such circumstances that
 if by that act, you had caused the death of said Rohtas,       E
 you would have been guilty of murder and thereby
 committed an offence punishable under Section 307 IPC
 read with section 149 IPC and within the cognizance of this
 court.

 That, fourthly, you accused Harender alias Kala, in            F
 prosecution of common object of your co-accused, namely,
 Jalpat Rai, Sham Sunder, Purshotam, Satish Kumar and
 Pawan Kumar, caused injuries to Subhash Gaba and
 Rakesh PWs and thereby you accused Harender alias
 Kala committed an offence punishable under-Section 323         G
 IPC while the remaining accused, namely, Jalpat Rai,
 Sham Sunder, Purshotam, Satish Kumar and Pawan
 Kumar committed all offence punishable under Section
 323 IPC read with \section 149 IPC and within the
 cognizance of this court.                                      H
    1056     SUPREME COURT REPORTS                  (2011) 7 S.C.R.


A        That, lastly, you accused Sham Sunder and Purshotam, on
         2.10.2002, in the area of City Jind, used your respective
         licenced revolvers for unlawful purpose i.e. for committing·
         the murder of Chand Singh, Sunil and Pawan Kumar and
         also for causing injuries to Rohtas complainant with the
B        intention to commit his murder while you accused Jalpat
         Rai and Satish, on the aforesaid date, time and place,
         used your respective licenced guns for unlawful purpose
         i.e. for committing the murder of Chand Singh, Sunil and
       . Pawan Kumar and also for causing gun shot injuries to
c        Rohtas complainant with the intention to commit his murder
         and thereby you accused Sham Sunder, Purshotam, Jalpat
         Rai and Satish Kumar committed an offence punishable
         under Section 27 of. the Indian Arms Act and within the
         cognizance of this court."         "·

D       21. The prosecution in support of its case examined 23
  witnesses in all . Three of these witnesses',· PW-1, PW-4 and
  PW-8 were tendered as eye-witnesses to the.occurrence. lnter-
  alia, Inquest Reports, Post-mortem Reports, Forensic Science
  Laboratory Examination Reports, Site Plans [rough plan
E prepared by 10 and the other by draftsman) were got exhibited.

         22. The statement of the accused persons was recorded
    under Section 313, Cr.P.C. The accused persons denied their
    involvement in the crime and stated that they have been falsely
F   implicated.

        23. The trial court, as indicated above, acquitted the
  present appellants and convicted A-2 under Section 302 IPC
  and Section 27 of Arms Act, 1959. The trial court, inter alia,
  held that the ocular testimony of PW-1, PW-4 and PW-8 was
G not reliable. It does not get corroborated from the medical
  evidence and their version is contradictory to the report of the
  ballistic expert. We intend to refer to the trial court's view about
  their evidence a little later.

H       24. The opinion of the High Court differed with that of the
      JALPAT RAI & ORS. v. STATE OF HARYANA                  1057
                  [R.M. LODHA, J.]

·trial court. The High Court held that the evidence of PW-1, PW-      A
 4 and PW-8 in totality was cogent, convincing and truthful.

     25. Mr. Sushil Kumar, learned senior counsel representing
A-1, A-3, A-4 and A-5 vehemently assailed the judgment of the
High Court. He argued that the acquittal of the appellants by         8
the trial court was based on proper appreciation of the entire
evidence on record. The view taken by the trial court was a
reasonable and possible view on consideration of the evidence
in totality which the High Court ought not to have disturbed. He
relied upon few decisions in this regard, particularly, Ghurey        C
Lal v. State of Uttar Pradesh 1 and Mahtab Singh and Anr. v.
State of Uttar Pradesh 2•

     26. Learned senior counsel, while relying upon the decision
in Mahtab Singh2 , also submitted that the first information report
(FIR) was not only delayed but was also a suspect and doubtful        D
document. Mr. Sushil Kumar submitted that PW-1 was not an
eye-witness and pointed out various discrepancies in the
testimony of PW-1 to buttress his argument that PW-1 was not
present at the time of incident.
                                                                      E
      27. As regards the evidence of PW-4, learned senior
 counsel submitted that he had not disclosed anything to the
 doctor in the hospital. According to him, PW-4 did not suffer
 any injury in the incident. He contended that although PW-4
 deposed that he was injured by a gunshot but he did not have
 a single pellet in his body; his clothes had no perforation.
                                                                      F
·Learned senior counsel submitted that his statement was
 recorded on October 8, 2002 for the first time as, according to
 him, he was unconscious upto that date but the medical record
 showed otherwise.
                                                                      G
       28. Mr. Sushi! Kumar, learned senior counsel was also
 critical about the deposition of PW-8. He submitted that PW-8
 was an introduced witness. His presence is not stated in the
 1.   c2ooa) 10 sec 450.
 2.   c2009) 13 sec e10.                                              H
    1058      SUPREME COURT REPORTS               [2011) 7 S.C.R.


A FIR. PW-8 does not get himself medically examined at Jind on
  the day of incident or at Rohtak but goes to a private doctor
  and tells him that he suffered injuries because he fell
  accidentally. He, thus, submitted that the evidence of PW-1,
  PW-4 and PW-8 was not reliable and trustworthy. In support of
B his submission, he cited Balakrushna Swain v. State of Orissa3,
  Balak Ram v. State of U.P. 4 , Vijaybhai Bhanabhai Patel v.
  Navnitbhai Nathubhai Patel & Ors. 5 and Darshan Singh v.
  State of Punjab & Anr. 6 .

         29. Learned senior counsel strenuously urged that the
C . circumstantial evidence on record clearly disproves the
    prosecution case. No blood was found on the spot and there
    was absence of blo ad on the clothes of the person who is said
    to have carried the injured. The ballistic evidence completely
    rules out complicity of the appellants. He relied upon the
D decisions of this Court in the cases of Khima Vikamshi and
    others v. State of Gujaraf, Ba/wan Singh v. State of Haryana8,
    Brijpal Singh v. State of M.P. 9 , Ghurey Lar, Mahendra Pratap
    Singh v. State of Uttar Pradesh 10• and Darshan Singh6 •

E        30. Learned senior counsel for the appellants also
    submitted that number of deaths does not matter in
    appreciation of evidence. According to him, the High Court was
    unnecessarily influenced by the fact that three murders in the
    same family had taken place resulting in erroneous
F   appreciation of the evidence. In this regard, he cited State of
    U.P. v. Moti Ram and others11, Deepak Kumarv. Ravi Virmani
    3.   (1971) 3 sec 192.
    4.   (1975) 3 sec 219.
    5.   c2004) 10 sec 583.
G a.     c2010) 2 sec 333.
    1.   c2003) 9 sec 420.
    8.   (2005) 11 sec 245.
    9.   (2003) 11 sec 219.
    10. c2009) 11 sec 334.
H   11. (1990)4SCC389.
     JALPAT RAI & ORS. v. STATE OF HARYANA                   1059
                 [R.M. LODHA, J.]
& Anr12• and Asif Mamu v. State of Madhya Pradesh 13•                 A
      31. It was also contended by Mr. Sushil Kumar that in the
event of conviction of the appellants being set aside, A-2 may
also be granted same relief although his SLP has been
dismissed. He would contend that SLP filed by A-2 was non- 8
est since he had a right of appeal under Section 2 of the 1970
Act and, therefore, the order of this Court dismissing his SLP
is also non-est. In support of his contention, he referred to few
decisions of this Court, namely, Harbans Singh v. State of Uttar
Pradesh and others 14 , A.R. Antulay v. R.S. Nayak and
another15 , Raja Ram and Ors. v. State of M.P. 16 , Deepak C
Kumar12 , Akhil Ali Jehangir Ali Sayyed v. State of
Maharashtra 17 and Shingara Singh v. State of Haryana &
another18 •

        32. Mr. Arun Bhardwaj, learned counsel for A-6 contended      D
  that A-6 has been falsely implicated in the incident. He referred
  to the evidence of PW-1 and submitted that not a word is stated
  by him about the invo,lvement of A-6. He argued that the
  prosecution evidence does not establish the complicity of A-6
,.at all and the High Court was in error in reversing the judgment    E
 ··of acquittal as regards him.

     33. Ms. June Chaudhari, learned senior counsel for the
State opposed the submissions of the learned senior counsel
and the learned counsel for the appellants with equal
vehemence. She stoutly defended the judgment of the High              F
Court and submitted that from the entire evidence let in by
prosecution and considered by the High Court, it is apparent
that the view taken by the High Court is the only possible view
12. (2002) 2 sec 737.
                                                                      G
13. (2008) 15 sec 405.
14. (1982) 2 sec 101.
15. (1988) 2 sec 602.
16. (1994) 2 sec 568.
11. (2003) 2 sec 108.
                                                                      H
18. <2003i 12 sec 758.
    1060    SUPREME COURT REPORTS                  [2011] 7 S.C.R.


A and the High Court was fully justified in reversing the judgment
  of the trial court. She submitted that Section 149 IPC was
  integral part of the charge and the prosecution evidence
  establishes the unlawful assembly of which A-1, A-3, A-4 and
  A-5 were members along with A-2 and the three murders were
B committed in pursuance of its common object. She submitted
  that all the members of the unlawful assembly were armed with
  deadly weapons and their conviction by the High Court does
  not suffer from any legal or factual infirmity.

        34. That Chand, Sunil and Pawan died homicidal death
C is neither in doubt nor in issue. The question that arises for our
  consideration is whether the High Court was justified in
  interfering with the order of acquittal passed in favour of the
  appellants by the trial court. Obviously, if the complicity of the
  appellants (A-1, A-3, A-4, A-5 and A-6) with the crime is
D established beyond any reasonable doubt, the view of the High
  Court would not call for any interference.

       35. The two courts - High Court and the trial court - have .
  divergence of opinion with regard to the evidence of eye ·
E witnesses. The trial court rejected the evidence of PW-1, PW-
  4 and PW-8 for the following reasons :

        "It is evident from a careful perusal of the evidence led by
        the prosecution that there is chequered history of unending
        hostility between the complainant party and the-accused
F       in connection with the affairs of the Truck Union. They are
        all transporters by profession. It seems that there was a
        brawl between accused Shyam Sunder and son:ie
        members of the complainant party on that fateful evening.
        The medical evidence reveals that there was flame effect,
G       blackening and tattooing at the entry wounds on all the·
        three bodies meaning thereby that the shots had been fired
        from point-blank range. The recovery of the articles like
        Belcha and Sword at the spot goes to show that accused
        Shyam Sunder may have found himself in imminent danger •
H       and he resorted to firing from his licensed pistol thereby
JALPAT RAI & ORS. v. STATE OF HARYANA                 1061
            [R.M. LODHA, J.]

claiming the lives of the three youngmen. Accused Shyam A
Sunder has not pleaded the right of private defence of
person and property but he has pleaded false implication
at the hands of the sworn enemies of the family. The
circumstances of the case also do not warrant the
extension of such concession to him. He had not suffered . B
any serious injury in the incident and the claim for use of
force in defence of person and property has to be
completely excluded in this case. P.W. Rohtas did not
suffer a firearm injury in the incident. Similarly, P.W. Rakesh
had allegedly offered himself for medico legal examination    c
to a private medical practitioner and he had told him that
he had suffered the injuries in an accidental fall. It is also
evident that complainant Sewa Singh may not have at all
witnessed the occurrence but he offered to lodge the First
Information Report after due deliberations and 0
consultations. A story was concocted with intent to
implicate all the male members of the family of accused
Jalpat Rai. A last minute efforts was made to rope in his
other two sons namely, Vinod and Sushi! by moving an
application under Section 319 of the Criminal Procedure E
Code which was eventually withdrawn .by the learned
Public Prosecutor on prevalence of better counsel upon
him. All the three alleged eye witnesses have rendered
highly contradictory versions and their evidence does not
receive corroboration from the medical evidence and the
ballistic expert's report. It shall be absolutely absurd to say F
that multiple firearms were used in the incident. All the
three deaths were caused by the use of .32 bore licensed
pistol (Exp. 22) owned by accused Shyam Sunder and this
court has very valid reasons to believe that he had pressed
the trigger each time. Let it be made absolutely clear here G
that it is not the case of the prosecution that the licensed
firearm of accused Shyam Sunder had been taken away
from him by any other accused or that it had been used
for gunning down the three victims. It is the case of the
prosecution that accused Shyam Sunder had triggered off H
    1062    SUPREME COURT REPORTS                  [2011) 7 S.C.R.


A       the incident by firing a shot from his pistol even as the
        complainant and his companions were walking away from
        him. It is also the case of the prosecution that the
        complainant and his companions turned about and rushed
        to nab accused Shyam Sunder but he fired a shot at
B       Chand which hit him in the left flank and killed him. The
        same weapon was used for causing firearm injuries to
        deceased Sunil and deceased Pawan. Therefore, there
        should be no manner of doubt about the direct involvement
        of accused Shyam Sunder in the commission of the
c       alleged crime."

         36. On the other hand, the High Court was not convinced
    with the reasoning of the trial court and found the evidence of
    PW-1, PW-4 and PW-8 cogent, convincing and truthful. The
    High Court with regard to their evidence observed thus :
D
        " ....... The learned trial Court has misread and
        misinterpreted the evidence of the eye-witnesses and the
        doctors as already discussed above. Occurrence in this
        case had taken place on 2.10.2002 at 10 p.m. Statement
E       of Sewa Singh PW-1 was recorded on 3.10.2002 at 12.30
        a.m. and F.l.R. Ex. PVwas recorded on 3.10.2002at12.50
        a.m. The special report reached the safe hands of C.J.M.,
        Jind on 3.10.2002 at 2.30 a.m. The name of the accused,
        the weapon of offence, the injuries inflicted, the name of
F       the witnesses are given in detail in the F.1.R. This in fact,
        goes a long way in proving the case of the prosecution.
        The complainant party did not get any time to consult and
        confabulate with each other as to who to falsely implicate.
        The F.l.R. is prompt and gets corroboration from the other
        evidence on record."
G
       37. PW-1 and PW-4 are real brothers. PW-8 and the
  deceased are nephews of PW-1 and PW-4. The presence of
  PW-1, PW-4 and PW-8 at the time of incident, does not appear
  to us to be doubtful. The trial court has doubted the presence
H of PW-1 at the place of occurrence but we find it difficult to
      JALPAT RAI & ORS. v. STATE OF HARYANA                 1063
                  [R.M. LODHA, J.]

  accept the reasoning of the trial court in this regard. Being      A
  transporter, the presence of PW-1 in his office at about 9.00
  p.m. was not unnatural. It was his good luck that he did not
  receive any injury in the incident. We do not think that absence
  of any injury on his person renders
                                 I
                                       his presence doubtful. The
. presence of PW-4 and PW-8 at the time of incident also cannot      B
  be doubted. Both of them suffered injuries. Both, PW-4 and PW-
  8, were medically examined by PW-6. PW-4 was examined by
  PW-6 immediately after the incident at about 10.15 p.m. on
  October 2, 2002. PW-8 was examined by PW-6 on the next
  day, i.e. October 3, 2002 in the afternoon. The trial court        c
  doubted that the injury suffered by PW-4 was from the firearm
  but the evidence of Dr. Paryesh Gupta (PW-19) leaves no
  manner of doubt that PW-4 received firearm injury in the
  incident. PW-19 deposed that PW-4 was operated upon for a
  firearm injury in the abdomen on October 3, 2002 in the
                                                                     0
  emergency Q.T. and the firearm was used from a close rang'e.
  However, the presence of PW-1, PW-4 and PW-8 at the time
  of incident does not guarantee truthfulness. The question is
  whether their testimony is trustworthy and reliable insofar as
  complicity of the appellants with the crime is concerned or they   E
  have tried to involve the innQcent along with the guilty.    ·

       38. Broadly, the evidence of PW-1, PW-4 and PW-8 has
 been indicated by us while narrating the prosecution case and
 by reason therefor, we need not reiterate the same except the
 salient features emerging therefrom. PW-1 had a long standing       F
 rivalry with A-1 in connection with Truck Owners' Union. Their
 rivalry has led to many criminal cases being filed against each
 other. PW-1 was/
                    prosecuted earlier for causing injuries to A-1
 and others. On September 12, 2002, i.e., about 20 days prior
 to the date of present incident, an FIR was registered against      G
 PW-1 and his partner under Sections 323, 506, 148 and 454
 IPC at Police Station City, Jind for causing injuries to one
 Shambir. In that incident, A-2 was an eye- witness. Two days
 later, on September 14, 2002, PW-1 reported to the police
 against A-2, A-3, A-4 and A-5 by way of counter case but            H
    1064     SUPREME COURT REPORTS                   (2011) 7 S.C.R.


A police did not take any action. A complaint was then lodged
  by PW-1 party against A-2, A-3, A-4 and A-5 in the Court of
  Additional Chief Judicial Magistrate, Jind.

        39. PW-1, PW-4 and PW-8 are not only much interested
B in the prosecution case but they are inimically disposed
  towards the accused party as well. The deep rooted enmity and
  serious disputes between PW-1 on the one hand and A-1 and
  his sons on· the other and their unflinching interest in the
  prosecution case necessitate that the evidence of PW-1, PW-
  4 and PW-8 is considered with care and caution. To find out
C intrinsic worth of these witnesses, it is appropriate to test their
  trustworthiness and credibility in light of the collateral and
  surrounding circumstances as well as the probabilities and in
  conjunction with all other facts brought out on record. There
  cannot be a rule of universal application that if the eye-witnesses
D to the incident are interested iri prosecution case and/or are
  disposed inimically towards the accused persons, there should
  be corroboration to their evidence. The evidence of eye-
  witnesses, irrespective of their interestedness, kinship, standing
  or enmity with the accused, if found credible and of such a
E caliber as to be regarded as wholly reliable could be sufficient
  and enough to bring home the guilt of the accused. But it is
  reality in life, albeit unfortunate and sad, that human failing tends
  to exaggerate, over-implicate and distort the true version
  against the person/s with whom there is rivalry, hostility and
F enmity. Cases are not unknown where entire family is roped in
  due to enmity and simmering feelings although one or only few
  members of that family may be involved in the crime. In the
  circumstances of the present case, to obviate any chance of
  false implication due to enmity of the complainant party with the
G accused party and the interestedness of PW-1, PW-4 and PW-
  8 in the prosecution case, it is prudent to look for corroboration
  of their evidence by medical/ballistic evidence and seek
  adequate assurance from the collateral and surrounding
  circumstances before acting on their testimony. The lack of
H corroboration from medical and ballistic evidence and the
     JALPAT RAI & ORS. v. STATE OF HARYANA                 1065
                 [R.M. LODHA, J.]

circumstances brought out on record may ultimately persuade         A
that in fact their evidence cannot be safely acted upon.

       40. Besides PW-1, PW-4 and PW-8, who are closely
related to the three deceased, no other independent witness
has been examined although the incident occurred in a busy          8
market area. The place of occurrence was visited by PW-20
in the same night after the incident. He found three two-
wheelers one bearing no. HR-31-A/5071, the second
bearing
     \
          no. RJ-13-M/7744 and the third without number lying
there\ One Maruti car bearing no. HR-20-0/8840 with
broken \glasses was also parked there. The owners of these          C
vehicles\have not been examined. At the place of occurrence,
one HMT Quartz wrist watch with black strap, one belcha and
four pair of chappaJs were also found. There is no explanation
at all.by the prosecution with regard to these articles. Nothing
has come on record wnether four pair of chappals belonged           D
to the ac;cused party or the complainant party or some other
persons. Whether HMT Quartz wrist watch that was found at site
was worn by one of the accused or one of the members of the
complainant party or somebody else is not known. Then, the
mystery remains about belcha that was found at site. These          E
circumstances instead of lending any corroboration to the
evidence of those three key witnesses, rather suggest that they
have not come out with the true and complete disclosure of the
incident.
                                                                    F
      41. If the evidence of PW-1, PW-4 and PW-8 is to be
believed then tnere was indiscriminate firing by the accused
party at the complainant party. PW-1 has said so in so many
words. Four members of the accused party-A-1, A-2, A-3 and
A-4 - were armed with firearms. According to these witnesses,       G
all of them fired shots from the firearms they were carrying. The
first shot was fired by A~2 from the pistol he was· carrying
{although in the FIR it is recorded that A-2 was armed with
revolver but this inconsistency is not very material). That shot
did not hit anyone. A-2 tllen again fired shot that hit Chand. A-   H
    1066    SUPREME COURT REPORTS                  '""'
                                                   [.1:.U I .I -J I S.C.R.



A 4 fired a shot with pistol that hit Sunil. A-3 and A-1 fired shots
  from their guns and A-2 and A-4 also fired shots from the pistols
  causing injuries to Pawan and PW-4. However, at the place of
  occurrence, only three empties were found. Had the firing taken
  place in the manner deposed by PW-1, PW-4 and PW-8,
B obviously there should have been more empties at the place
  of occurrence. It is conjectural to assume, as has been done
  by High Court, that the Investigating Officer was not able to
  recover more than three empties because the occurrence took
  place in 'chowk' and by the time he reached at the site, a lot of
c traffic must have passed there. Moreover, at the scene of
  occurrence, there were no marks of indiscriminate firing.

        42. The medical evidence is clear and specific that the
  three deceased-Chand, Su nil and .Pawan received one
  firearm injury each. The blackening and singeing injuries· leave
D no manner of doubt that shots were fired at the deceased
  persons from a very close range. As a matter of fact, medical
  evidence is categorical to that effect. However, the ocular
  account given by PW-1, PW-4 and PW-8 does not indicate
  that.
E
        43. The ballistic report records unambiguously and
  unequivocally that the crime bullets (BC/1 to BC/3) and the
  cartridge cases (C/1 to C/3) were fired by the pistol stated to
  have been recovered from A-2 and no other firearm. The
F cartridge cases and the crime bullets have positively matched
  to 7.65 mm pistol no. 109033-2002. This pistol is licensed
  pistol of A-2 and was recovered from him in dismantled
  condition with parts separated in three pieces. The Forensic
  Science Laboratory marked the above pistol 'W/2' for the
G identification purposes. Based on the examination carried out
  in the Laboratory, the result of analysis is recorded as under:

        "7.65 mm cartridge cases and bullets marked C/1 to C/3
        and BC/1 to BC/3 respectively had been fired from 7 .65
        mm pistol marked W/2 and not from any other firearm even
H
     JALPAT RAI & ORS. v. STATE OF HARYANA                  1067
                 [R.M. LODHA, J.)

    of the same make and calibre because every firearm has           A
    got its own individual characteristic marks''.

The ballistic evidence is clearly in conflict with the evidence of
PW-1, PW-4 and PW-8 and shatters their evidence completely
vis-a-vis the appellants. The testimony of PW-1, PW-4 and PW-
                                                                     8
8 about the role of appellants, thus, is not corroborated by
medical and ballistic evidence. Their evidence also does not
get support from the collateral circumstances that have come
on record.

      44. The deposition of PW-1, PW-4 andPW~8 suffers from          C
significant improvements and omissions as well. PW-1
deposed that he did not tell the police that Satish had fired from
his .12 bore licensed gun, Jalpat had fired from .22 rifle of
Shyam Sunder and Purshotam had fired from .32 licensed
pistol of Satish but when he was confronted with portion A to        D
A of his statement {Ex. DA) before police, it was found that it
was so recorded. He testified that he had stated in his
statement to the police that A-5 had caused injuries to PW-8
but when confronted with that statement, it was found that it was
not so stated. PW-4 deposed that he had told the police that         E
A-4 had fired at Sun ii from his revolver but when confronted with
that statement, it transpired that it was not so stated. He .also
deposed that he had told the police that A-5 had given a sword
blow to PW-8 on his temple but when he was confronted with
that statement, it was found that it was not so stated. PW-8         F
deposed that he had stated before the police that the shots
fired by A-3 and A-1 from their guns did not hit anyone but when
confronted with that statement, it transpired that he has not so
stated.

      45. As regards arrival of A-5 at the place of occurrence,      G
the evidence of PW-1 and PW-8 is not consistent. PWc1 has
deposed that A-5 was also present with the other accused
when the incident started; he was armed with sword and caused
injuries with the sword to PW-8. PW-8, on the other hand, has
                                                                     H
    1068    SUPREME COURT REPORTS                   [2011] 7 S:C.R.


A stated that A-5 descended on the scene of occurrence after
  firing had started.

        46. We have indicated broadly some of the more serious
  infirmities in the evidence of the eye-witnesses (PW-1, PW-4
B and PW-8) in order to indicate that their evidence at any rate
  is not wholly true and it is unsafe to act on their evidence insofar
  as complicity of A-1, A-3, A-4, A-5 and A-6 is concerned.
  Brushing the impact of these infirmities aside , the High Court
  erroneously treated the evidence of P;W-1, PW-4 and PW-8
C cogent, convincing and truthful. All in all, the evidence of PW-
  1, PW-4 and PW-8 lacks in credibility and is not of sterling
  worth to prove the involvement of A-1, A-3, A-4, A-5 and A-6
  in the crime beyond any reasonable doubt. As regards A-6, as           i
  a matter of fact, it was conceded by the learned senior counsel
  for the State that there was no reliable evidence to prove his
D involvement in the crime. The appellants, in our opinion, are
  entitled to benefit of doubt.

       47. Incidentally, Vinod and Sushil (sons of A-1) were also
  shown as assailants in the FIR. In the investigation, their
E presence was not established; they were not charge-sheeted.
  PW-1, PW-4 and PW-8, however, in their deposition before the
  Court made an attempt to implicate them. Based on their
  deposition, the public prosecutor made an application Cinder
  Section 319 of Cr.P.C. for summoning those two sons of A-1
F but that application was eventually withdrawn. This by itself has
  not much bearing in the case. What it shows is that there has
  been attempt by PW-1, PW-4 and PW-8 right from the
  inception to rope in A-1 and all his sons in the incident
  irrespective of whether all of them were involved in the crime
G or not.
       48. We are not oblivious of the fact that A-2 was convicted
  by the trial court for the offence under Section 302 IPC but the
  High Court has altered his conviction from Section 302 to
  Section 302 IPC read with Section 149 IPC and his special
H leave petition (SLP) against that judgment has been dismissed
     JALPAT RAI & ORS. v. STATE OF HARYANA                 1069
                 [R.M. LODHA, J.]
summarily. The dismissal of SLP summarily does not mean             A
affirmance of the judgment of the High Court on merits. It has
been repeatedly held by this Court that mere dismissal of SLP
does not amount to acceptance of correctness of the High
Court decision. The order of this Court in A-2's SLP is not an
impediment in allowing these two appeals once it is held that       B
prosecution has failed to prove the complicity of the appellants
beyond any reasonable doubt.

     49. We are not impressed by the argument of Mr. Sushil
Kumar, learned senior counsel, that the SLP preferred by A-2        C
was non-est since he had a right of appeal under Section 2 of
the 1970 Act and, therefore, the order of this Court dismissing
the SLP preferred by A-2 is also a non-est. The judgments
cited by learned Senior Counsel in support of his submission
that in the event of appellants' conviction being set aside, A-2
is also entitled to the same relief although his SLP has been       D
dismissed have no application to the facts of the present case.
The case against A-2 stands on a different footing. The ballistic
evidence is conclusive against him and leaves no manlier of
doubt about his involvement in the crime. We need not say any
further in this regard as SLP preferred by A-2 against his          E
conviction has already been dismissed.

     50. In view of the above discussion, these two appeals are
allowed and the judgment of the High Court as regards ·the
present appellants is set aside. The judgment of acquittal          F
passed in their favour by the trial court is restored. The
appellants Jalpat Rai and Pawan are already on bail and
accordingly their bail bonds are discharged. The other
appellants, Satish Kumar, Purshotam and Harinder alias Kala
be released forthwith, if not required in any other case.
                                                                    G
D.G.                                          Appeals allowed.