SURESH @ HAKLAversusSTATE OF HARYANA

                        [2008] 5 S.C.R. 1207


                        SURESH @ HAKLA
,j
                                                                  A
                                 v.
                       STATE OF HARYANA
                (Criminal Appeal No. 1295 of 2006)
                           APRIL 7, 2008
                                                                  B
        [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

          Penal Code, 1860 - ss 302, 307 rlw s. 149 and s. 148 -
     Murder - Fatal gun shot injuries on account of enmity -
     Conviction under sections, by courts below - Challenge to, by c
     three of the accused - On appeal held: Conviction of two of
     the accused justified since they were named in FIR - ·
     Prosecution witnesses clearly described the role played by
     them - However, conviction of the other accused set aside
     since he was not named in FIR and in the original statement-
                                                                   D
     Role ascribed to him was differently described - There was
     no evidence to show his participation - He was also not known
r    to the witnesses - No Test Identification Parade was carried
     out.
           According to the prosecution case, on the fateful day, E
     on account of enmity, accused SS, LR, BS and SC fired
     gun shots at M-Sarpach. M was accompanied by PW-14
     and 15-father of M, DR and RP. Accused PP threatened
     the witnesses at gun point. Accused took out important
     documents, cheque and cash from M's pocket and also F
     the licensed gun of PW-14 from the car and _fled away. M
-1
     was taken to the Hospital and was declared dead. PW-15
     also suffered injuries in the firing. On basis of the
     statement of PW 14, FIR was registered, Investigation was
     carried out. The post-mortem examination was conducted
                                                                  G
     and five gun shot injuries on the dead body of M were
     found. Accused SC, PP and SS were arrested. On their
     disclosure statement weapons where recovered. The trial
)    court convicted and sentenced all the accused under
                                1207                              H
    1208     SUPREME COURT REPORTS               (2008] 5 S.C.R.


A section 302, section 307 r/w section 149 and under section
  148 IPC, including accused BS and LR since they had
  been named in the FIR. Accused S was also convicted
  though he was not named in FIR but had figured in the
  supplementary statements of the witnesses and his
B involvement was also clear from the statement of PW-15-
  injured witness, and was also the driver of the car in which
  accused came. The High Court upheld the order. Hence
  the present appeal by accused BS, LR and S.
        Allowing Criminal Appeal No. 1295 of 2006 and
c   dismissing Criminal Appeal No. 1296 of 2006, the Court
        HELD: 1. Accused BS and LR were named in the FIR,
  the role played by each one of them has been clearly
  described by PWs. 14 and 15. Their presence at the spot
  cannot be doubted. PW 15 is an injured witness. As a
D
  matter of fact there has been recovery of the pellet. The
  stand that the evidence of Doctor-PW 2 shows fire arm            i
  injuries is not possible, is also not correct. He does not
  say so. On the contrary, he said that the possibility of
  injuries by fire arm cannot be ruled out. In that view of the
E matter, the appeal of accused BS and LR is without merit
  and is dismissed. [Para 7) [1214-E-G]
       2.1 Appellant S was not named in the FIR and in the
  original statement. His role in the incident has been
F described in different manners by PWs 14 and 15. S was
  not known to the witnesses. In fact it has been
  categorically noted by the High Court that PW-15 has
  accepted that he did not know him earlier. There was no
  Test Identification Parade. There is also major variance
  as to whether S participated in pulling out the deceased,
G
  while one witness says he did and other says that he was
  driving car. [Paras 6 and 8) [1214-G-H; 1215-A; 1214-C-D]
       2.2 The High Court drew an inference that because           {

  S was a driver in pre-planned murder, the role of such
H driver is crucial. Such an inferential conclusion is without
             SURESH @ HAKLA v. STATE OF HARYANA                   1209
                     [DR. ARIJIT PASAYAT. J.)

          any evidence to show participation of accused S. While A
          PW 15 stated that S was threatening the witnesses who
          were present, PW 14 gave a different version. He did not
          speak a word about the participation of accused S. Thus,
          the conviction of accused S cannot be maintained and is
          set aside. [Para 9) [1215-8-C]                           B

              CRIMINAL APPELLATE JURISDICTION : Criminal
          Appeal No. 1295 of 2006.

               From the final Judgment and Order dated 5.10.2004 of
          the High Court of Punjab and Haryana at Chandigarh in Crl. A.   c
          No. 118-DB/2002

                                     WITH

               Criminal Appeal No. 1296 of 2006.
                                                                          D
              Nagindra Rai, Rishi Malhotra and Prem Malhotra for the
     't
          Appellant.
""             Naresh Bakshi and T.V. George for the Respondent. .
               The Judgment of the Court was delivered by                 E
                DR. ARIJIT PASAYAT, J.. 1. These Appeals have a
          common nexus and are disposed of by a common judgment.
          Two .appeals were filed before the Punjab and Haryana High
          Court i.e. Criminal Appeal No. 118 -DB of 2002 and Criminal
          Appeal No. 119 -DB of 2002. One Appeal was filed by Suresh F
          alias Hakla (appellant in Criminal Appeal No. 1295 of 2006)
          and another appeal was filed by Balwant and Ladh Ram
          (appellants in Criminal Appeal No. 1296 of 2006). The High
          Court dismissed the Criminal Appeal No. 670- DB of 2001 filed
                                                                         G
          by Balwant and Ladh Ram. The High Court dealt with the factual
          and the legal position in detail in Criminal Appeal No. 670-DB
      ,
      .   of 2001 and dismissed the same. Another Criminal Appeal i.e .
          No. 560 DB of 2002 was filed by accused Shamsher Singh. In
          the connected two appeals the decision was followed.
                                                                         H
    1210       SUPREME COURT REPORTS                  (2008) 5 S.C.R.


A          2. Background facts in a nutshell are as follows:

           At about 9.30 A.M. on 15.7.1996 Ramesh (PW-14)
     accompanied by Mahender Sarpanch (hereinafter referred to
     as the 'deceased'), Duli Chand (PW-15), Dev Raj and Richh
     Pal were going in a Gypsy being driven by the deceased. As
8
     they had covered a distance of 2 Yi kms. and reached near the
     Chitang canal situated in between villages Salemgarh and
     Mingnikhera, a Maruti Car having No. DL-4C/8434 came from
     the opposite direction. As the car stopped close to the jeep,
C    accused Shamsher Singh came out and fired a shot from a
    country made pistol which hit the wind screen of the Gypsy, due
    to which deceased Mahender lost control with the result that the
    Gypsy skidded and stopped on the road side. Thereupon,
    Shamsher Singh, Ladh Ram, Balwant, Pirthi Punic and 3/4 other
D   persons came out of the car and pulled Mahender out from the
    Gypsy. Shamsher Singh fired another shot hitting Mahender on         {
    the left side of the abdomen, whereas Ladh Ram fired a shot
                                                                             >
    from his gun hitting Mahender below his armpit on the left side
    and Balwant fired a shot from the country made pistol hitting
E   Mahender on his right flank, while Siri Chand fired a shot from
    his gun hitting him on his anus. Siri Chand also shouted that
    Mahender should not be spared because he had committed
    the murder of his son Bhoop Singh. Pirthi Punic kept standing
    close-by pointing his gun at the witnesses and threatened that
F   he would shoot them if they intervened. The accused thereafter
    went through the pockets of Mahender and took out the license
    for his revolver, a driving license, an identity card and a cheque
    for Rs.50,000/- and some cash and also picked up the licensed
    gun of Ramesh, which was lying in the Gypsy, and then drove
G   away to village Kabrel. In the meantime. a Tata-407 truck came
    from the side of village Kabrel in which Subhash son of Tara
    Chand and Shishpal son of Dariya Singh were travelling and
                                                                         (
    Mahender was brought to the Civil Hospital, Hisar, where he
    was declared dead. In the firing, Duli Chand, father of Mahender
H   (PW-15) also suffered pellet injuries on his face, forehead and
           SURESH @ HAKLA v. STATE OF HARYANA                         1211
                  [DR. ARIJIT P/ASAYAT, J.]

        right arm. A wireless message was sent to the police station, A
        on which SI Dharam Chand (P-17) reached the Civil Hospital
        and recorded the statement of Ramesh (PW-14) at about 1.00
        PM and on its basis a formal FIR Ex-FN was registered at police
        station Sadar, Hisar at 1.40 PM, within the special report being
        delivered to the llaqa Magistrate locally at 3.55 PM. The B
        investigating Officer also took into possession the medico legal
        report of Duli Chand and after the post-mortem examination,
        some pellets recovered from the dead body. Siri Chand, Prithvi
        and Shamsher Singh were arrested on 29.07.1996 and on
        Shamsher's interrogation, a.12 bore pistol and five empty and C
        two live cartridges were recovered. Likewise, on the disclosure
        statement made by accused Prithvi, a.16 bore licensed gun
        belonging to Siri Chand'and two empty and two live cartridges
        were recovered. Shamsher Singh also made ·1 disclosure .
        statement and on its basis, a .12 bore pistof,.which had allegedly D
    )   been used in another murder committed by him on the same
        day, was recovered. A case under Section 25 of the Arms Act
        was registered against accused Shamsher Singh as well.
        Accused- Makhan Singh who though not namedin the FIR but
        found to be involved in the inCident, was arrested on 7:4.1998. E
         On the completion of the investigation, the accused were
         charged for offences punishable under Sections 148, 302 read
         with Sections 149, 307 read with Sections 149 and 395 of the
•        Indian Penal Code, 1860 (in short 'IPC') and as they pleaded . F
         not guilty, were brought to trial.

              The prosecution in support of its case placed reliance, inter-
        alia on the evidence of Dr. Arun (PW-1) reported that no fracture
        had been seen in the X-ray conducted by him, Dr. B.L. Bagri
        (PW-2) of the General Hospital, Hisar, who had examined Duli           G
        Chand at 12.25 PM on 15.7.1996 and had found three injuries
        PW-3 Dr. J.S. Bhatia, the Senior Medical Officer, Government
        Hospital, Hisar, who had conducted the post-mortem
        examination and had found five gun shot injuries on the dead
                                                                               H
    1212       SUPREME COURT REPORTS                    [2008] 5S. C.R.


A  body, the two eye witnesses Ramesh (PW14) and Duli Chand
   (PW-15), the last namad being injured, SI Dharam Chand (PW-
   17), the Investigating Officer, and Inspector Avtar Singh (PW-
  21 ). The statements of the accused were thereafter recorded
  under Section 313 Cr.P.C. and they denied the allegations
B leveled against them and claimed to be innocent. They also
  produced two witnesses in defence, Charanjit Singh DSP (DW-
  1), who stated Balwant had not been present at the time of the
  incident and the first named was entirely innocent, whereas
  Balwant was a part of the conspiracy which had led to the murder;
C and Sumer Singh (DW-2), who produced the records to
  depose that Shamsher accused had been held guilty vide
  judgment dated 9.4.2001 in another murder committed on the
  same day.

o       The trial Court held that on the facts as brought on the record
  there was no delay in the lodging of the FIR; that there was no
  need to subject the accused to an identification parade as they
  had already been identified at the time of the registration of the
  FIR; that the medical evidence supported the ocular version;
E that the minor discrepancies in the evidence of the, eye
  witnesses could be ignored and the statements accepted as
  being tries and that the metallic pieces, Exh.P14 and P15
  recovered from, the dead body had been matched with the
  weapon recovered from Shamsher accused. The Court then
F went to the involvement of each of the accused and opined that
  Balwant and Ladh Ram had been named in the FIR, whereas
  Prithvi and Suresh though not named therein had figured in the
  supplementary statements of the witnesses and their
  involvement and also clear from the statement of Duli Chand,
G the injured witness, and that Suresh aforesaid was also the
  driver of the Maruti Car in question. The Court also held that
  Shamsher Singh was the main accused in the case. The Trial
  Court accordingly convicted and sentenced the accused as
  under:
H
         SURES_H@ HAKLA v. STATE OF HARYANA                          1213
                 [DR. ARIJIT PASAYAT, J.]
J,

      All the accused under             To     undergo        rigorous        A
      Section 302 of the                imprisonment for life and
      Indian Penal Code                 to pay a fine of Rs,5,000/- and
                                        in default of payment thereof
                                        to further undergo· rigorous
                                        imprisonment months.                  B

                                        to     undergo       rigorous
                                        imprisonment for five years
                                        and to pay a fine of Rs.1000/-
                                        and in default of payment
                                        thereof to further undergo            c
                                        rigorous imprisonment for one
                                        month.
      All the accused under
      Section 307 read with
      Section 149 of the                                                      D
      Indian Penal Code
\·
      All the accused under             To undergo rigorous
      Section 148 of the                imprisonment for one year.
      Indian Penal Code
                                                                              E
          All the sentences were, however, ordered to run
     concurrently.

          All appeals were dismissed by the High Court.

          3. It is to be noted that the trial court primarily relied on the   F
     evidence of PWs. 14 & 15 i.e. Ramesh and Duli Chand. Duli
~
     Chand was the father of the deceased who also suffered injuries
     on the face, forehead and right arm.
           4. In support of the appeal, learned counsel for the               G
     appellants submitted that the evidence of PWs. 14 & 15 does
     not inspire confidence. The defence version that occurrence had
     not taken place around 9.30 A.M. but at 6.30 A.M. prima facie
•    gets established because of the presence of partial undigested
     food and faecal materials. The appellant Balwant and Ladh Ram
                                                                              H
    1214      SUPREME COURT REPORTS                   [2008] 5 S.C.R.


A belong to different villages and could not have been parties to
  the alleged animosity to have any motive. The evidence of PW
  15 should not have been relied upon as he cannot see beyond
  ten feet. The evidence of Doctor- PW 2 established five injuries.
  There were five injuries noticed; none of which has been
B specifically attributed to Balwant and Ladh Ram.
          5. In support of the appeal filed by accused Suresh it is
    submitted that he was not named in the FIR and/or in the original
    statement. Subsequently in the so called supplementary
    statement, his name surfaced. The role ascribed to him is
c   differently described. The High Court noticed that he was the
    driver of the car.
          6. There is also major variance as to whether Suresh
    participated in pulling out the deceased, while one witness says
    he did and other says that he was driving car.
D
         7. Learned counsel for the respondent-State on the other        -{
  hand supported the judgment and submitted that because of
  concurrent findings recorded, there was no scope for
  interference. So far as the appeal filed by Balwant Singh and
E Ladh Ram is concerned they were named in the FIR, the role
  played by each one of them has been clearly described by PWs.
  14 & 15. Their presence at the spot cannot be doubted. PW 15
  is an injured witness. As a matter of fact there has been recovery
  of the pellet. The stand that the evidence of Doctor (PW 2) shows
F fire arm injuries is not possible is also not correct. He does not
  say so. On the contrary, he said that the possibility of injuries by
  fire arm cannot be ruled out. In that view of the matter, the appeal   f


  so far as Balwant Singh and Ladh Ram is concerned is without
  merit, deserves dismissal. Criminal Appeal No.1296 of 2006
G
  is dismissed.
        8. So far as the appeal filed by the accused Suresh is
  concerned as noted above he was not named in the FIR and in
  the original statement. His role in the incident has been
  described in different manners by PWs 14 & 15. It is to be noted
H that Suresh was not known to the witnesses. In fact it has been
       SURESH@ HAKLA v. STATE OF HARYANA                     1215
              [DR. ARIJIT PASAYAT, J.]

categorically noted by the High Court that PW-15 has accepted        A
that he did not know him earlier. There was no Test Identification
Parade.
      9. The High Court has drawn an inference that because
he was a driver in pre-planned murder, the role of such driver is
crucial. Such an inferential conclusion is without any evidence B
to show participation of accused Suresh. While PW 15 stated
that Suresh was threatening the witnesses who were present,
PW 14 gave a different version. He did not speak a word about
the participation of accused Suresh. Looked at from any angle
the conviction of accused Suresh cannot be maintained and C
deserves to be set aside.
      10. The appeal bearing No. 1295 of 2006 is allowed. The
accused be set at liberty forthwith unless his custody is r~quired
in any other case ..
                                                                     D
N.J.               Criminal Appeal No. 1295/2006 allowed &
                   Criminal Appeal No. 1296/2006 dismissed