RAJESH @ SARKARI & ANR versus STATE OF HARYANA

[2020] 14 S.C.R. 1

RAJESH @ SARKARI & ANR

STATE OF HARYANA

(Criminal Appeal No. 1648 of 2019)

NOVEMBER 03, 2020

[DR. DHANANJAYA Y CHANDRACHUD,

INDU MALHOTRA AND INDIRA BANERJEE, JJ.]

Penal Code, 1860 – s.302 r/w. s.34 – Prosecution case thatcomplainant’s elder son was shot dead inside University –Complainant-PW-4 and his younger son-PW-5 stated that they hadseen the incident and they had taken victim to the hospital – Victimwas declared dead – Three accused persons including both theappellants were apprehended and arraigned – All the three accusedpersons refused to undergo Test Identification Parade and pleadednot guilty – The Trial Court convicted all the three accused personsfor having committed murder and sentenced them to imprisonmentfor life – All three accused persons filed appeals before the HighCourt which was dismissed – Two accused persons filed appealbefore the Supreme Court – Held: There were clear improvementsmade by PW-4 and PW-5 in their statements – PW-4 had stated he,PW-5 along with ‘one unknown person’ had lifted victim from thespot to take him to hospital – Whereas, PW-5 does not mentionpresence of any third person – Further, ruqqa indicated that thedeceased was brought by one ‘S’ and the same is significantcircumstance which indicates that neither PW-4 nor PW-5 werepresent at the scene of offence – DW-4 and DW-5 stated that it wasthem who had taken victim to the hospital and neither PW-4 norPW-5 were present at the scene of occurrence – Neither the authorof first and second FSL reports in the context of the seizure andrecovery of weapons W/1 and W/2 in FIR No.311; nor the author ofthe third FSL report in context of FIR No.781(FIR in present case)were examined by the prosecution in the course of the evidence –The discrepancies which were noticed in the FSL reports in bothabovementioned FIRs could have been explained by the authors ofthe FSL reports and their examination being not done would entitleaccused benefit of doubt – As far as Test Identification Parade isconcerned, there is no specific provision either in the CrPC or the

CDEF

2SUPREME COURT REPORTS

AIndian Evidence Act, 1872 which lends statutory authority to anidentification parade – The identification in the course of TIP isintended to lend assurance to the identity of the accused – Thefinding of guilt cannot be based purely on the refusal of the accusedto undergo an identification parade – In the present case, thepresence of the alleged eye-witnesses PW-4 and PW-5 at the sceneBof occurrence is seriously in doubt – The ballistics evidenceconnecting the empty cartridges and the bullets recovered from thebody of the deceased with an alleged weapon of offence iscontradictory and suffers from serious infirmities – Therefore, arefusal to undergo TIP assumes secondary importance and cannotCsurvive independently in the absence of it being substantive pieceof evidence – The prosecution failed to establish its case beyondreasonable doubt and thus, appellants are entitled to benefit ofdoubt.

Allowing the appeal, the CourtDHELD: 1. The presence of PW-4 and PW-5

1.1 PW4, in the course of his cross-examination, stated thathe, PW5 and “one unknown person” had lifted victim from thespot to take him to PGIMS. On the other hand, PW5, in the courseof his deposition, does not mention the presence of any thirdEperson who took victim with them to the hospital. While PW4states that the police reached the hospital at 4:00pm, PW5, onthe other hand, is unaware of when the police had reached thehospital. Now, in this background, it is important to notice thatthere are clear improvements made by PW4 and PW5, which haveFa bearing on whether they were eyewitnesses to the allegedoccurrence. Both PW4 and PW5 have made substantialimprovements in the course of their examination in evidence.Both the witnesses attempted to bolster the case of theprosecution with regard to their presence at the scene of crimeand of being eye-witnesses to the occurrence by stating that theyGhad removed victim to the hospital after he had been gunneddown. The absence of any reference to their taking victim to thehospital in the FIR has bearing on whether they were eye-witnesses to the occurrence. The incident took place at the

University where the deceased was student and, according toPW4, was preparing for his supplementary law exams. The theorythat PW4 and PW5 were present at the scene of offence and hadremoved the deceased to the hospital must be tested withreference to two significant circumstances which have emergedfrom the record. First, the record of the trial before the SessionsCourt, which has been produced before this Court, indicates thatthe deceased was brought dead to PGIMS, Rohtak at 3:00pm.The ruqqa was sent to the police at 3:35pm. The ruqqa indicatesthat the deceased was brought by “’SL’ Resident of KailashColony, Rohtak”. The reference to ‘SL’ is significantcircumstance which indicates that neither PW4 nor PW5 werepresent at the scene of offence which is why, after the incident, itwas not PW4 or PW5, but third person who had transported thedeceased victim to the hospital. The Sessions Court whileappreciating this aspect, explained away the argument of thedefence that neither PW4 nor PW5 were present at the scene ofoffence, by holding that perhaps both of them were present, buthad suffered shock of having witnessed the murder of victimwhich is why the ruqqa was signed by DW4. In arriving at thisconclusion, the Sessions Court had supplied an explanation whichdoes not comport with the case of the prosecution. Second, thecase of the prosecution, it must be noted, was not that victim wastaken to the hospital by two other persons who eventually wereproduced by the defence in evidence as DW4 and DW5. The caseof the prosecution was that as matter of fact PW4 and PW5 hadtaken victim to PGIMS, Rohtak. As noted earlier, PW4 statedthat he, PW5 and an unknown person had done so, while PW5stated it was only PW4 and him who had removed the injured tohospital. The defence produced, among other witnesses, DW4and DW5. In the course of his examination, DW4 stated that heand DW5 had taken victim to the hospital and that PW4 and PW5had arrived at the hospital after they reached there. DW4 statedthat he and DW5 removed victim to PGIMS, Rohtak and it wasabout 10 to 15 minutes after their arrival at the hospital that PW4and other relatives reached the hospital. Though the ruqqamentioned the name of the person who brought the deceased to

APGIMS as ‘SL’, resident of Kailash Colony Rohtak, the name ofthe person is evidently incorrect since it is ‘P’(DW4) who is theresident of Kailash Colony, Rohtak. DW4 and DW5 stated that itwas them who had taken victim to the hospital and neither PW4nor PW5 were present at the scene of the occurrence.[Para 17][24-E-H; 25-A-H]B

2. FSL Reports

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

2.2 In evaluating the third FSL report, three crucial aspectsneed to be flagged at this stage: first, the FSL report contains acomparison and analysis of what is described in the result as aD“country made pistol marked W/2 chambered for 7.62mmcartridges”; second, the FSL report contains no reference to thepistol which was marked as W/1 in the second FSL report dated25 September 2007 in reference to FIR No. 311 and third, theabove extract under the result section indicates that pistol W/2(which is the only pistol analysed) was recovered from ‘R’ in theEcourse of the investigation in FIR No. 311. The above aspectshave crucial bearing on the weight to be ascribed to the thirdFSL report. [Para 22][32-E-G]

2.3 The three aspects highlighted demonstrate that, out ofthe alleged two recoveries of the pistols which were marked asFW/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 withreference to the cartridges and fired bullets stated to have beenrecovered from the scene of offence in the present case. PistolW/1, as the second FSL report dated 25 September 2007 inGrelation to FIR No. 311 indicates, was alleged by the prosecutionto have been recovered at the behest of accused ‘R’ while pistolW/2 was allegedly recovered from accused ‘A’. The third FSLreport in the present case contains ballistics analysis of only

one of the two pistols namely W/2 and not W/1. Moreover, thethird FSL report contains an erroneous statement that W/2 wasrecovered at the behest of ‘R’ when, as this Court has seen, W/2 is recovery which the prosecution alleges to have been madefrom accused ‘A’ in the course of the investigation in the FIRNo. 311. Pistol W/1 was, in other words, clearly not made availableto the examiner for the purpose of ballistic examination.[Para 23][32-G-H; 33-A-C]

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

2.5 There is no inflexible rule which requires theprosecution to examine ballistics examiner in every case wherea murder is alleged to have been caused with the use of firearm. The decision in Mohinder Singh (1953) has since beenexplained in Gurucharan Singh (1963) by co-ordinate Bench.Thereafter, the principle which has emerged from the line ofauthority which we have noticed earlier, is that the failure of theprosecution in given case, to examine ballistics expert has tobe assessed bearing in mind the overall context of the nature ofthe evidence which is available. When direct evidence of anunimpeachable character is available and the nature of injuries isconsistent with the direct evidence, the examination of ballisticsexpert need not be insisted upon as condition to the prosecutionproving its case. On the other hand, where direct evidence is notavailable or there is doubt in regard to the nature of that evidence,the failure to examine the ballistic examiner would assumesignificance. In the present case, the weapons of offence werealleged to have been recovered in the context of the investigationin another FIR (FIR No.311 dated 19 May 2006). The weaponswere marked as W/1 and W/2 in that case. The third FSL reportarising out of the investigation in FIR No. 781 in the presentcase does not deal with weapon W/1 at all. Moreover, as we havenoted earlier, the third FSL report wrongly attributes weapon

AW/2 to accused ‘R’. Whether or not weapon W/2 had been madeavailable to the ballistics examiner was matter which could havebeen explained if the prosecution were to lead his evidence. Theprosecution cited ballistics examiner as witness and yet, didnot lead his evidence. This must be juxtaposed in light of the factthat the eye-witness account of PW4 and PW5 is not free fromBdoubt. This Court has also analysed the evidence of PW4 andPW5 and have noted that there is grave element of doubt as towhether they were witnesses at the scene of occurrence. In thiscontext, the Court must therefore hold that the discrepancieswhich have been noticed in the FSL report could have best beenCexplained by the authors of FSL reports both in FIR No. 311/2006 and FIR No. 781/2006. This not having been done, theaccused would, in our view, be entitled to the benefit of doubt.[Para 34][38-H; 39-A-G]

3. Refusal to undergo Test Identification ParadeD3.1 The State has sought to urge that out of all the threepublications which were proved in the course of the evidence,only one contained the names of the accused. However, the centralpoint in this case is whether on the basis of significant aspectswhich have emerged during the course of cross-examination ofEPW4 and PW5, an adverse inference should be drawn against theappellants for having refused to undergo TIP. The evidence onthe record indicates that not only did the deceased have severalcriminal cases against him, some of which had ended in acquittalon account of compromise, but that one of the appellants, ‘R’,and the deceased were co-accused in case arising out of FIRFNo. 341 dated 23 June 45 2001 under Sections 454 and 380 ofthe IPC. Evidently both of them had been arrested in connectionwith the case, which is why PW5 deposed that his father PW4used to go to court when victim and ‘R’ were being produced onvarious dates of hearing. PW4 also stated that he has stood suretyGfor his son in various criminal cases. In this backdrop, thecontention of the appellants that the refusal to undergo TIP isborne out by the fact that victim and ‘R’ were known to eachother prior to the occurrence and that PW4, who is prime eye-

witness, had seen ‘R’ when he would attend the court during thecourse of the hearings, cannot be brushed aside. Consequently,in case, such as the present, the Court would be circumspectabout drawing an adverse inference from the facts, as they haveemerged. In any event, the identification in the course of TIP isintended to lend assurance to the identity of the accused. Thefinding of guilt cannot be based purely on the refusal of theaccused to undergo an identification parade. In the present case,the presence of the alleged eyewitnesses PW4 and PW5 at thescene of the occurrence is seriously in doubt. The ballisticsevidence connecting the empty cartridges and the bulletsrecovered from the body of the deceased with an alleged weaponof offence is contradictory and suffers from serious infirmities.Hence, in this backdrop, refusal to undergo TIP assumessecondary importance, if at all, and cannot survive independentlyin the absence of it being substantive piece of evidence. [Para39][43-B-H; 44-A]

Mohinder Singh vs. State, AIR 1953 SC 415; SukhwantSingh vs. State of Punjab, (1995) 3 SCC 367 : [1995] 2SCR 1190; State of Punjab vs. Jugraj Singh, (2002) 3SCC 234 : [2002] 1 SCR 998; Vineet Kumar Chauhanvs. State of UP, (2007) 14 SCC 660 : [2007] 13 SCR727; 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; GurucharanSingh 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; Malkhansinghv. State of M.P. (2003) 5 SCC 746:2003 SCC (Cri)1247; Visveswaran v. State (2003) 6 SCC 73; MunshiSingh Gautam v. State of M.P. (2005) 9 SCC 631;Sidhartha Vashisht@ Manu Sharma v. State (NCT ofDelhi) (2010) 6 SCC 1; Ashwani Kumar and Ors. v.

AState of Punjab (2015) 6 SCC 308; Mukesh and Ors.v. State for NCT of Delhi and Ors. AIR 2017 SC 2161

– referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1648 of 2019

FFrom the Judgment and Order dated 17.01.2019 of the High Courtof Punjab and Haryana at Chandigarh in CRA-D No. 634-DB of 2012(O&M)

Deepak Thukral, DAG, Rakesh Khanna, Sr. Adv., Anil Hooda,Ravinder Hooda, Jitendra Hooda, Ajay Sharma, Ms. Apsana Khatoon,GPramod Kumar, Yadav Narender Singh, and Dr. Monika Gusain, Advs.for the appearing parties.

The Judgment of the Court was delivered by

DR. DHANANJAYA Y CHANDRACHUD, J.

1. The appellants Rajesh alias Sarkari and Ajay Hooda have beenconvicted, together with co-accused[1] for an offence under Section302 read with Section 34 of the India Penal Code[2] and have beensentenced to imprisonment for life.

2. On 26 December 2006, ruqqa[3] was received at the PolicePost, PGIMS, Rohtak about Sandeep Hooda, son of Azad Singh Hooda,having been brought dead there. ASI, Meha Singh met Azad Singh, thecomplainant, at the emergency ward in PGIMS, Rohtak. Azad Singhmade statement which was reduced into writing upon which FirstInformation Report[4] being FIR No.781 was registered under Section154 of the Criminal Procedure Code[5] at Police Station Sadar, Rohtak.The complainant stated that his elder son Sandeep was studying in thefinal year of the LLB degree course in Maharishi Dayanand University,Rohtak[6]. On 26 December 2006, Sandeep had gone to the lawdepartment in the University to prepare for the exams. The complainant’sson-in- law had come to their house and was in hurry to leave aftermeeting Sandeep. They tried to contact Sandeep on his cell phone butwere unable to get through. The complainant and his younger son, Sunil,then proceeded on their motor-cycle to the University. At about 2:30pmwhen they reached the parking in proximity to the law department, theysaw that 6 men standing under the tin sheds started firing shots at Sandeepwho was standing there. Sandeep was alleged to have fallen down uponwhich the complainant and his son, Sunil, rushed towards the spot. Thethree young men fled towards the Delhi road on silver coloured Pulsarmake motor-cycle. The complainant stated that he had not noted theregistration number of the motor-cycle but could identify the assailants,if they were brought before him. The complainant alleged that bloodwas oozing out from the right foot, abdomen, arm, left temple and thighof Sandeep. The complainant also stated that Sandeep was taken toPGIMS, Rohtak by Parveen, son of Zile Singh Hooda, and “anotherperson” in Santro car belonging to Sandeep. However, he succumbedto the fire arm injuries before reaching the hospital. The complainant,

1 Pehlad Singh alias Harpal

2 IPC

3 written intimation

4 FIR

5 CrPC

6 University

AAzad Singh, stated that his son had strained relations with some personsand those persons had killed him.

3. As result of the investigation, initially, accused Rajesh aliasSarkari and Ajay Hooda were apprehended and arraigned. Subsequently,accused Pehlad, was also arraigned to face trial. The offence underBSection 302 being triable exclusively by the Court of Sessions, the twoappellants were committed for trial to the Sessions Judge, Rohtak by theChief Judicial Magistrate, pursuant to an order dated 25 September 2007.Subsequently, on the basis of the supplementary charge-sheet presentedagainst accused Pehlad, he was also committed to the Court of SessionsJudge by the JMFC on 31 March 2008. The trials against all the threeCaccused were consolidated by an order dated 12 April 2008. Chargeswere framed on 8 May 2008. All the accused pleaded that they werenot guilty. The prosecution examined 24 witnesses at the trial, as notedby the judgment of the Sessions Court:“9. The prosecution … examined as many as twenty fourDwitnesses namely HC Karan Singh as PW1, Ram Singh asPW2, Ajit Singh as PW3, Azad Singh as PW4, Sunil asPW5, SI Wazir Singh as PW6, SI Jagram as PW7, HC SatNarain as PW8, Constable Sumit Kumar as PW9, SIMahender Singh as PW10, ASI Dharambir as PW11,EConstable Rajiv Godara as PW12, HC Vijay Pal as PW13,Dr. Sushma jain as PW14, retired Inspector Ram MeharSingh as PW15, Ex. Head Constable Ranbir Singh as PW16,Constable Jitender Kumar as PW17, Inspector/SHORajender Singh as PW18, SI Ram Kishan as PW19, HCJai Kishan as PW20, retired SI Maha Singh as PW21, retiredFASI Balwan Singh as PW22, SI Banarsi Dass as PW23and EHC Ram Chander as PW24. Learned PublicProsecutor for the State also tendered reports of FSLExhibits PD to PF in evidence. Thereafter, he closed theevidence of the prosecution.”

The reports of the Forensic Science Laboratory were marked asExhibit PD-PF in evidence. The accused were examined after theconclusion of the evidence of the prosecution under Section 313 of theCrPC to explain the circumstances which appeared against them in theevidence of the prosecution. They claimed innocence and stated thatHthey have been falsely implicated. One of the appellants, Rajesh alias

Sarkari, stated that the victim was implicated with him as co-accusedin another case; that there was no dispute between them and that hisphotographs have been published in the newspaper. The accusedexamined 5 witnesses in support of their defence as noted by the judgmentof the Sessions Court:

“11. …the accused have examined as many as fivewitnesses namely Jiley Singh as DW1, Rajesh Jogpal,Record Keeper as DW2, Shamsher Singh as DW3, Parveenas DW4 and Sikander as DW5, in their defence evidence.”

4. During the course of the trial, PW1, Head Constable KaranSingh, deposed that on 26 December 2006, he had joined the investigationof the case and together with ASI, Meha Singh and others, had reachedthe scene of offence at the University. He recovered seven emptycartridges, one lead and blood-stained earth which were packed into aparcel and sealed. Among the other recoveries, was liquor bottle withsome quantity of liquor. The principal eye witnesses whose evidencewas relied upon by the prosecution were the complainant (PW4- AzadSingh) and his son (PW5-Sunil). PW4 stated that on 26 December 2006,he and PW5 had proceeded to the University where Sandeep had goneto prepare for his examinations, as Sandeep could not be contacted onhis telephone. At 2:30 pm when they reached near the cycle-stand ofthe law department, they saw the car belonging to Sandeep parked there.Sandeep was standing under the cycle shed together with three persons.When PW4 and PW5 were at distance of about 100 feet from Sandeep,they saw him being fired at with pistols or revolvers. PW4 identified theappellants in Court as the assailants at the scene of offence. All thethree accused are stated to have departed from the scene after executingthe crime. PW4, in the course of his evidence, stated that thereafter, heand PW5 took Sandeep to the Casualty Department of PGIMS, Rohtakin the Santro car, where he was declared to be brought dead. The policewere stated to have reached the hospital and to have recorded hisstatement as Exhibit PB. The deposition of PW5 was in similar terms.Significantly, both PW4 and PW5 stated that they had removed Sandeepin his car to PGIMS, Rohtak which was at variance with the FIR whichrecorded that Sandeep had been removed to the hospital by “Parveen,son of Zile Singh Hooda, and by another person”. PW7- Jagram, Sub-Inspector, deposed that ASI Meha Singh had deposited two sealed parcels,one containing blood-stained earth and the other containing 7 empty

12SUPREME COURT REPORTS

Acartridges as well as one lead with him, which he subsequently forwardedto the FSL, Madhuban on 8 January 2007. PW9- Sumit Kumar, Constable,prepared scaled site-plan marked as Exhibit PJ. PW10- MahenderSingh, SI, PW11- Dharambir, ASI, SIT Crime Branch, Rohini, PW12-Constable Rajeev Godara, DRK, SIT Crime Branch, Rohini, deposed tothe disclosure statements of the accused, marked as Exhibits PQ andBPR. The post mortem was conducted by PW14, Dr Sushma Jain, andwas marked as Exhibit PS and PT. The post mortem report indicates thepresence of 13 injuries which are described as follows:

“Injuries:

1. Entry wound: wound of entry of size 1.5 cm, 0.5 cm withinverted margin was present on right occipital region of scalpsituated 1 cm posterior to right external auditory meatus.Blackening, charring ecchymosed was present around the wound.

Track- Bullet was piercing through all layers of scalp causingDfracture of right occipital bone and passing through and throughthe brain matter causing laceration of brain matter and then causingcommunities fracture of petrous bone of left temporal bone andreaching just medial to left external auditory meatus. Bulletrecovered just medial to left external auditory meatus. Track goingdownward medially and reaching on left side just medial to leftEexternal auditory meatus.

Injury No.2:

An entry wound 0.5 cm x 0.5 cm size was situated on the lateralborder of lower part of right arm 3 cm above the lateral epicondyleFof right forearm margins inverted and ecchymosed. Track goingupward and medially piercing skin soft issue and muscles goingjust above the right humerus bone reaching upto point situated 3cm above the medial epicondyle of right forearm on the medialaspect of middle 1/3rd of right arm. Bullet was situated just beneaththe skin at the point where the track was ending.

GInjuries No.3 and 4.

3. An entry wound 1 cm x 0.5 cm was situated just above the leftelbow joint on the anterior aspect of left arm 4 cm lateral to themedial epncondyle (left) margins inverted and ecchymosed.

Track:

Track was going medially and slightly downward only skin andentanous tissue deep.

4. Exit wound 0.5 cm x 0.5 cm size wound with everted marginswas situated on the medial aspect of lower 1/3rd of left arm andwas 3.5 cm above the medial epicondyle (left).

Injury No.5:

An entry wound of size 1 cm x 0.5 cm with inverted + andecchymosed margins and was situated on the medial aspect ofmiddle 1/3rd of left forearm 13.5 cm below the medial epicondyle(left). Blackening of skin was present around the wound. Trackwas going downward and posterior-laterally piercing the skin, softtissue and muscles and reaching just beneath the skin on posteriorlateral aspect of left forearm 12 cm above the wrist joint and 2.5cm medial and posterior to lateral border of left forearm and bulletwas recovered from the end point of track just beneath the skin.

Injury No.6 and 7.

6. An entry wound was situated 33 cm from lateral end of rightpatellaon lateral aspect of upper 1/3rd of right thigh 1.5 cm x 0.5cm size blackening, charring and echymosis was present at themargins. Margins inverted.

Track:

Track was passing through skin and subcutaneous tissue and wasgoing upward and medially.

7. Exit wound: exit wound of size 2 cm x 0.5 cm with evertedmargins was situated 12 cm below the anterior aspect of upper 1/3rd of right thigh and was 6.5 cm above the entry wound.

Injury No.8 and 9:

8. An entry wound of size 1.5 cm x 0.5 cm was situated 10 cminferio lateral to anterior superior iliac spine (left) ecchymosis waspresent around the wound.

Track:

Track was going downward and medially piercing skin,subcutaneous tissues, muscles and was causing fracture of femur(left) and reaching up to the exit wound.

9. Exit wound of size 0.5 cm x 0.5 cm was situated 32 cm abovethe medial side of left patella. Margins were everted.

Injury No.10 & 11:

10. wound of entry 1.5 cm x 0.5 cm size was situated 10.5 cmabove the right anterior superior iliac spine on the anteriorabdominal wall. Margins were inverted. Blackening and charringwas present at margins.

Track:

Track was going backward towards the left side piercing skinsubcutaneous tissues abdominal muscles and was causing injuryof small and large gut and reaching up the exit wound on theback.

11. Exit wound of size 0.5 cm x 0.5 cm with everted margin wassituated 9 cm above the anterior superior iliac spine and 5 cmlateral to midline on left side of back.

Injury No.12 and 13:

12. An entry wound of size 2 cm x 1.5 cm with inverted marginswas situated 6 cm superior medial to right anterior superior iliacspine and was surrounded by 0.3 cm to 0.5 cm size collar ofabrasion all around the wound. Track was going upward andtowards left side and was piercing skin subcutaneous tissuemuscles and causing injury of small and large gut.

13. Exit wound: 0.5 cm x 0.5 cm size exit wound with evertedmargin was situated just below the left costal 2 cm lateral to theline of nipple.

Heart right side contained blood. Stomach contained semi digestedfood. Rest of the organs were normal.”

Both PW10-Mahender Singh, SI and PW15-Ram Mehar Singh,retired Inspector, stated that upon arrest, the appellants had refused toundergo test identification parade. In pursuance of the disclosure madeby the accused Rajesh alias Sarkari, the Pulsar motor-cycle bearing

registration No. HR-10-H/2241 was recovered from his residence on24 June 2007 in Sector IV Bhiwari, Rajasthan. PW19-Ram Kishan, SI,in the course of his deposition, stated that pistol had been recoveredfrom the rented house of accused Rajesh alias Sarkari at Palam Vihar,Gurgaon. PW19 also deposed to the recovery of pistol from the rentedhouse of accused Ajay Hooda at village Carterpuri, Gurgaon. Therecovery of the fire arm at the behest of the accused was sought to becorroborated by the evidence of PW20-Head Constable Jai Kishan andPW21- Meha Singh. PW21- Meha Singh, former Sub-Inspector, hadreceived the ruqqa on 26 December 2006 from PGIMS, Rohtak. PW21was part of the police team which had reached the scene of offenceand had lifted seven empty cartridges and one lead from the spot.

5. The FSL report dated 29 November 2007, marked as ExhibitPD, stated that seven 7.62mm mauser pistol fired cartridges and one7.62mm mauser pistol fired bullet had been recovered from the place ofoccurrence; and two 7.62mm deformed and mutilated fired bullets hadbeen recovered from the body of the deceased who had been fired atfrom country made pistol. The pistol had been received in an earlierFIR, being FIR No. 311 at Police Station, Civil Lines, Rohtak and wasstated to have been recovered from accused Rajesh alias Sarkari.

6. Five defence witnesses, during the course of their deposition,stated:

(i)DW1- Zile Singh denied that he had let-out his house toccused Ajay Hooda and stated that the police had not visitedthe house in connection with any recovery. The witnessstated that he had seen the accused Ajay Hooda for thefirst time in Court;

(ii)DW2- Rajesh Jogpal, Record Keeper stated that accusedRajesh and the deceased Sandeep had faced trial in casearising out of the FIR No. 341 dated 23 June 2001 registeredat Police Station, Civil Lines, Rohtak under Sections 454/380 of the IPC. The case had been decided on 20 September2008. Azad Singh, the complainant/PW4 had stood suretyfor Sandeep in the said case;

(iii)DW3- Shamsher Singh, Executive Officer, Hari BhumiNewspaper, Rohtak stated that three news items regarding

the incident were published in the newspaper on 23February 2007, 13 April 2007 and 1 July 2007;

(iv)DW4- Parveen, s/o Zile Singh, deposed that on the date ofthe occurrence he, together with Sikandar (DW5), waspresent along with Sandeep at the cycle-stand of the lawdepartment at the University. Sandeep was consumingalcohol while sitting in his car and after some time parkedhis car inside the shed and sat down on the ground wherehe continued to drink. After sometime, 5-6 persons camethere on two motor-cycles and fired indiscriminately uponSandeep. Sandeep fell down in an injured condition and wasremoved by DW4 and DW5 to PGIMS, Rohtak where he

was declared dead by the doctors on duty. DW4 statedthat the father and other relatives of Sandeep reached themortuary about 10 to 15 minutes after their arrival. Thepolice came there and recorded his statement. DW4 statedthat the father of the deceased (PW4) was not present at

the scene of the occurrence and the accused presented inthe Court were not the assailants who had fired shots atSandeep; and

(v)DW5- Sikandar, s/o Ashok Rathi, deposed along similar linesto DW4 and stated that he and DW4 had taken Sandeep toPGIMS, Rohtak and had informed the father and brotherof Sandeep of the occurrence, who had accordingly reachedPGIMS, Rohtak.

The FSL Reports, Exhibit DY, DY/1 and DY/2 were also tenderedin the course of the defence evidence.F

7. The Sessions Court, by its judgment dated 12 June 2012,concluded that there was ring of truth to the case of the prosecutionand that the appellants were guilty of the offence of having committedthe murder of Sandeep. The appellants and the co-accused Pehlad were,Gfollowing their conviction under Section 302 read with Section 34 of theIPC, sentenced to imprisonment for life. Aggrieved by the judgment ofthe Sessions Court, all the three accused filed appeals in the High Courtof Punjab and Haryana. By judgment dated 17 January 2019, the HighCourt dismissed the appeals.

8. Leading the submission on behalf of the appellants, Mr RakeshKhanna, learned Senior Counsel urged the following submissions:

A. PW4 and PW5 are not eye-witnesses

(i)PW4 and PW5 were not present at the scene of the offenceand their depositions stating that they were eye-witnessesBto the occurrence are untrustworthy;

(ii)The FIR which was lodged in close proximity to theoccurrence of the crime on the statement of PW4 clearlystates that Sandeep was removed to the hospital by Parveen,son of Zile Singh Hooda, and another person. In theCdepositions of PW4 and PW5, there is markedimprovement when they stated that both of them haveaccompanied the deceased who was in an injured conditionto PGIMS, Rohtak;

(iii)Parveen, son of Zile Singh Hooda, deposed as DW4 andconfirmed that it was he and Sikandar (DW5) who hadDtaken Sandeep to the hospital. Both DW4 and DW5 statedthat PW4 and other relatives of the deceased reached themortuary after 10 to 15 minutes and neither PW4 nor PW5were present at the scene of offence;

(iv)The information(ruqqa) sent by the Causalty MedicalOfficer on 26 December 2006 records that the deceasedSandeep was brought to PGIMS, Rohtak by “Sandeep Lehri,son of Zile Singh Hooda resident of Kailash Colony, Rohtak”.The name ‘Sandeep’ Lehri is an inadvertent error in placeof ‘Parveen’ who is also described as the son of Zile SinghHooda, resident of Kailash Colony, Rohtak;

(v)The post-mortem report and the statement of PW14indicates that injury nos. 1, 5, 6, 10 and 11 showedblackening, charring and ecchymosis at the margins. PW4in his deposition has stated that the accused fired at Sandeepfrom distance of 4-5 feet. However, as explained in thedecision of this Court in State of Rajasthan v. Daud Khan[7],blackening of injuries can only be observed if the pistol isfired from very close range, i.e., 2 feet or less. This

[2020] 14 S.C.R.

indicates that PW4 and PW5 were not present at the site;and

(vi)On the above grounds, it has been submitted that neitherPW4 nor PW5 are eye-witnesses to the occurrence.

The Forensic Science Laboratory[8] reportB

(i)There are three FSL reports on the record – two relate toFIR No. 311 of 2006 and one pertaining to the present casewhich arises out of FIR No. 781 of 2006;

(ii)The first FSL report dated 12 March 2007 pertains to FIRCNo. 311 where three parcels containing the clothes of injuredpersons, one 7.65mm fired bullet taken from the body of aninjured person by the name of Kuldeep, four 7.65 mm firedpistol cartridge cases and one 7.65mm live pistol cartridgewere collected from the place of occurrence. After the FSLreport was prepared, the samples were resealed with theDseal of L.S.Y (BALL) FSL (H);

(iii)The second FSL report is dated 25 September 2007 in FIRNo. 311. In the description of parcels and the condition ofseals, it has been stated that four parcels were received:two with the seal of R.K. and two with the seal of L.S.YESOS (Ball) FSL (H). The first parcel contained pistolchambered for 7.65mm cartridges along with the magazine,one 7.65mm fired cartridge case and one 7.65mm livecartridge stated to have been recovered from the accusedRajesh. The pistol was marked W/1 and the cartridge caseFwas marked C/5. The second parcel contained one pistolchambered for 7.62mm/0.30” cartridges along withmagazine and one 7.62mm misfired cartridge stated to havebeen recovered from accused Ajay. The pistol was markedW/2 and the misfired cartridge as MC/1. The third parcelwith the seal of L.S.Y SOS (Ball) FSL (H) contained oneG7.65 mm fired bullet already marked as BC/1 in the earlierfirst FSL report dated 12 March 2007. The fourth parcelhad number and seal impression L.S.Y SOS (Ball) FLS(H) and contained four 7.65mm fired cartridge cases andone 7.65mm live cartridge (the fired cartridge cases were

already marked as C/1 to C/4 in the earlier first FSL reportdated 12 March 2007);

(iv)In the laboratory examination, it was stated that both thepistols were test fired and that their firing mechanisms werefound in working order. The class as well as individualcharacteristic marks present on the 7.65mm fired cartridgecases C/1 to C/5, 7.62mm / 0.30” misfired cartridge markedMC/1, 7.65mm fired bullet BC/1 and those on the test firedcartridge cases and bullets fired from pistols marked W/1and W/2 were examined. In the result, it was stated thatpistols W/1 and W/2 were in working order. The 7.65mmcartridge case marked C/5 was found fired from pistol W/2. However, the 7.65mm fired cases C/1 to C/4 and 7.65mmfired bullet marked BC/1 were not fired from the pistolmarked as W/1. In so far as the 7.62mm misfired cartridgeMC/1 is concerned, it was found to be misfired from pistolW/2. All the exhibits were resealed along with their originalwrappers with the seal of L.S.Y SSO (Ball) FSL (H). One7.65mm cartridge received in parcel No. 4 has been usedin test firing in the laboratory; and

(v)The third FSL report dated 29 November 2007 pertains toFIR No. 781 lodged in the present case. In the descriptionof articles, five parcels were stated to have been receivedon 8 January 2007. According to the submission, the receiptor description of parcels sealed by the ballistic expert is notmentioned, as per his report dated 25 September 2007. Thefirst parcel inter alia contained blood stained earth, liftedfrom the place of occurrence and sent for serologicalexamination. The second parcel is stated to contain seven7.62mm mauser pistol fired cartridge cases and one 7.62mmpistol fired bullet recovered from the place of occurrencewhich were marked as C/1 to C/7 and BC/1 respectively.The third and fourth parcels contained blood stained clothes.The fifth parcel contain two 7.62mm deformed and mutilatedfired bullets and two lead pieces stated to have beenrecovered from the body of the deceased, marked as BC/2, BC/3, BC/4 and BC/5. In the laboratory examination, ithas been stated that the individual characteristic marks

present on the 7.62mm mauser pistol fired cartridge casesmarked as C/1 to C/7 and 7.62mm mauser pistol fired bulletsmarks BC/1 to BC/3 and those on test cartridges and testbullets fired from country made pistol W/2 (chambered for7.62mm cartridges), received in the second FSL report inconnection with the FIR No. 311 were examined. The leadpieces marked BC/4 and BC/5 in parcel 5 were alsoexamined. The lead piece BC/4 was found to be 0.455”revolver bullet. No regular rifling marks were observed.

9. On the basis of the above narration, it has been submitted that:

(i)The parcel containing the pistol marked as W/2 and thetest fired bullet, sealed by the ballistic examiner as per thesecond FSL report dated 25 September 2007, admittedlyhad not been received and described in the description ofarticles contained in the third FSL report dated 29 November2007, arising from FIR No. 781 (present case);

(ii)There is no material on record to establish that it was broughtto the notice of the Assistant Director, RK Koshal, whoexamined the articles contained in the parcels, about anyconnection of the parcels received for examination, withthe parcels examined in the second FSL report dated 25ESeptember 2007;

(iii)The description of the pistol in the second FSL report dated25 September 2007 indicates that it is chambered for7.62mm/0.30” cartridges. However, the description of thecartridges received in the third FSL report in this case is7.62mm mauser pistol fired cartridge cases. The recoverymemo in regard to the place of occurrence refers to sevenempties and one cartridge bearing the description of S andB 7.62 X 25, whereas in the second FSL report dated 25September 2007 the description is 7.62mm / 0.30” cartridge;and

(iv)Though the author of the third FSL report dated 29November 2007 states that the cartridge cases marked C/1 to C/7 and the bullet marked BC/1 to BC/3 had beenfired from the country made pistol marked W/2, the saidpistol was never produced before the author of this report

nor was any information placed before him about theinterconnection of pistol W/2 and the cartridge cases to C/1 to C/7 or the fired bullets BC/1 to BC/3. The IO of thepresent case, PW21, has, in the course of his cross-examination, admitted that on the empty shells Exhibits P4to P10, there was an inscription 7.62K 25, which does nottally with the description recorded in the second FSL reportdated 25 September 2007 or the third FSL report dated 29November 2007.

10. On the basis of the above discrepancies, it has been urged onbehalf of the appellants that the prosecution has failed to establish thatPW4 and PW5 were eye-witnesses at the scene of occurrence.Moreover, the prosecution has failed to establish the correctness of theFSL report. The ballistics examiners have not been examined in thecourse of the evidence tendered by the prosecution. The discrepanciesin the FSL reports could have been explained in the course of theexamination by the FSL examiners. Their non-examination cuts at theroot of the case of the prosecution and would entitle the appellants to anacquittal.

11. On the other hand, Mr Deepak Thukral, learned StandingCounsel appearing on behalf of the Haryana, has opposed the submissionsof the appellants and submitted:

(i)As regards the presence of PW4 and PW5, the SessionsCourt noted that the deceased had sustained 13 injuries asa result of the fire arm attack. PW4 and PW5 who hadcome to the scene of the offence on their motor-cycle couldnot possibly have removed the deceased on two-wheelerto the hospital and hence it was DW4- Parveen who tookhim in the car belonging to the deceased;

(ii)Corroboration of the presence of PW4 and PW5 at thescene of offence is established by the fact that the tracksuit of the deceased was handed over by PW5 to the police.GOne of the articles that has been examined in the course ofthe third FSL report is the track suit of the deceased. Thiswould indicate the presence of PW4 and PW5;

(iii)PW4 and PW5 were cross-examined at length on theirpresence at the scene of occurrence. Their testimony is

22SUPREME COURT REPORTS

Acorroborated by the medical evidence which suggests thatthe death occurred due to extensive fire arm injuries;

(iv)As regards the FSL reports, the test cartridges were firedfrom pistol W/2 and the test firing was carried out in thelab. The test cartridges and test bullets were again compared.BHowever, the third FSL report inadvertently mentions thatpistol W/2 was recovered from Rajesh though it was actuallyrecovered from Ajay;

(v)Though the third FSL report does not refer to pistol W/1which was recovered from Rajesh, his conviction can beCsustained under the provisions of Section 34 of the IPChaving regard to the extensive nature of the fire arm injuriesand the recovery of fire arms;

(vi)Both the appellants refused the test identification paradeand an adverse inference ought to be drawn. The explanationDof the appellants that they did so because their photographswere published in the newspapers is belied by the fact thatout of the three newspaper publications, only one hadmentioned their names and none of them had published theirphotographs;

E(vii)The FSL reports were filed by the defence after thestatements of the appellants under Section 313 of the CrPCwere recorded, and the failure to examine the ballisticsexaminer must be construed from that perspective;

(viii) The eye-witness account of PW4 and PW5 findsFcorroboration in the medical evidence and the FSL report;and

(ix)Though the appellants have sought to discredit theprosecution version by adverting to the blackening of theinjury, blackening is not always due to the close range ofthe firing, as noticed in the judgment of this Court in MohanGSingh vs. State of M.P.[9]

12. The rival submissions will now be considered. Broadly speakingthe submissions in the present case traverse three areas:

9 (1999) 2 SCC 428H

(i)Whether PWs 4 and 5 were eye-witnesses at the sceneAof occurrence on 26 December 2006;

(ii)The weight to be ascribed to the third FSL report; and

(iii)The refusal of the accused appellants to undergo testidentification parade.

13. Each of the above aspects needs to be analyzed.

The presence of PW4-Azad Singh and PW5-Sunil Singh

14. PW4 is the complainant, the father of the deceased. PW5-Sunil is the brother of the deceased. The FIR records that the informationwas received at the Police Station Sadar, Rohtak at 5:20 pm on 26December 2006. General diary reference entry 22/2012 is at 6:20 pm.The FIR which was registered on the statement of PW4 states that theson-in-law of the complainant had come to visit and wanted to meet thedeceased Sandeep. Since Sandeep was not reachable at his cell phone,PW4 and PW5 are stated to have gone to the University and when theyarrived near the law department they noticed “six boys under the tinsheds”, who started firing at Sandeep. The incident is stated to havetaken place at 2:30 pm and following the gun shots which were fired athim, Sandeep is stated to have fallen on the ground. According to theFIR, the accused escaped from the spot. The complainant stated that heand his son Sunil could identify the three young boys if they were broughtbefore them. The FIR contains specific statement that Sandeep wasremoved to PGIMS, Rohtak by Parveen, son of Zile Singh Hooda, aresident of Kailash Colony, Rohtak and by one other boy in Santro carwhich was standing at the spot.

15. The principal line of attack to doubt whether PW4 and PW5are eye- witnesses to the occurrence is based on the improvementsmade in the course of their deposition. In the course of his examination-in-chief, PW4 stated that when he and PW5 were at distance of 100feet from Sandeep, they saw “three boys firing shots”. He purported toidentify the three accused who were present in the Court as the personswho had fired on his son “with weapons which were like pistols andrevolvers”. PW4 then stated that “we [meaning thereby PW4 and PW5]took our son Sandeep in Santro car to the Casualty Department ofPGIMS, Rohtak as my son was having bullet injuries on his chest, thighs,arm and temple”. PW4 states that Sandeep was declared as brought

Adead by the doctors and then the police reached the hospital and recordedhis statement, marked as Exhibit PB. During the course of the cross-examination, PW4 denied that at the time of occurrence, Sikandar Rathi(DW5) and ‘Lehri’ (potentially referring to DW4) were standing withhis son. In the course of the cross-examination, it was suggested toPW4 that Sandeep was not removed by him and PW5 to the hospitalBand that as matter of fact, it was Sikandar Rathi (DW5) and‘Lehri’(DW4) who had taken him to the hospital. PW4 denied thissuggestion as well as the suggestion that neither he nor PW5 were presentat the scene of occurrence. PW4 also stated that the clothes worn byhim and by PW5 were smeared with blood but they had not been collectedCby the police. According to PW4, he and PW5 reached PGIMS, Rohtakat about 2.45pm and the police had arrived at 4:00 pm.16. In the course of his examination-in-chief, PW5 similarly statedthat Sandeep had been removed to the hospital by him and his fatherPW4 and that he gave the shirt of the track suit of Sandeep to the police,Dwhich was removed by him while they were shifting him to hospital.PW5, in the course of his cross-examination stated that when he andPW4 took Sandeep to hospital their clothes were smeared with bloodbut that neither he nor PW4 handed over their clothes to the police.

17. PW4, in the course of his cross-examination, stated that he,EPW5 and “one unknown person” had lifted Sandeep from the spot totake him to PGIMS, Rohtak. On the other hand, PW5, in the course ofhis deposition, does not mention the presence of any third person whotook Sandeep with them to the hospital. While PW4 states that the policereached the hospital at 4:00pm, PW5, on the other hand, is unaware ofwhen the police had reached the hospital. Now, in this background, it isFimportant to notice that there are clear improvements made by PW4and PW5, which have bearing on whether they were eye-witnesses tothe alleged occurrence. Both PW4 and PW5 have made substantialimprovements in the course of their examination in evidence. Both thewitnesses attempted to bolster the case of the prosecution with regardGto their presence at the scene of crime and of being eye-witnesses tothe occurrence by stating that they had removed Sandeep to the hospitalafter he had been gunned down. The absence of any reference to theirtaking Sandeep to the hospital in the FIR has bearing on whether theywere eye-witnesses to the occurrence. The incident took place at theUniversity where the deceased was student and, according to PW4,Hwas preparing for his supplementary law exams. The theory that PW4and PW5 were present at the scene of offence and had removed thedeceased to the hospital must be tested with reference to two significantcircumstances which have emerged from the record. First, the recordof the trial before the Sessions Court, which has been produced beforethis Court, indicates that the deceased was brought dead to PGIMS,Rohtak at 3:00pm. The ruqqa was sent to the police at 3:35 pm. Theruqqa indicates that the deceased was brought by “Sandeep Lehri sonof Shri Zile Singh Hooda, Resident of Kailash Colony, Rohtak”. Thereference to ‘Sandeep Lehri’ is significant circumstance which indicatesthat neither PW4 nor PW5 were present at the scene of offence whichis why, after the incident, it was not PW4 or PW5, but third personwho had transported the deceased Sandeep to the hospital. The SessionsCourt while appreciating this aspect, explained away the argument ofthe defence that neither PW4 nor PW5 were present at the scene ofoffence, by holding that perhaps both of them were present, but hadsuffered shock of having witnessed the murder of Sandeep which iswhy the ruqqa was signed by DW4. In arriving at this conclusion, theSessions Court had supplied an explanation which does not comportwith the case of the prosecution. Second, the case of the prosecution, itmust be noted, was not that Sandeep was taken to the hospital by twoother persons who eventually were produced by the defence in evidenceas DW4 (Parveen) and DW5 (Sikandar Rathi). The case of theprosecution was that as matter of fact PW4 and PW5 had takenSandeep to PGIMS, Rohtak. As we have noted earlier, PW4 stated thathe, PW5 and an unknown person had done so, while PW5 stated it wasonly PW4 and him who had removed the injured to hospital. The defenceproduced, among other witnesses, DW4 and DW5. In the course of hisexamination, DW4 stated that he and DW5 had taken Sandeep to thehospital and that PW4 and PW5 had arrived at the hospital after theyreached there. DW4 stated that he and DW5 removed Sandeep toPGIMS, Rohtak and it was about 10 to 15 minutes after their arrival atthe hospital that PW4 and other relatives reached the hospital. Thoughthe ruqqa mentioned the name of the person who brought the deceasedto PGIMS as Sandeep Lehri, son of Zile Singh Hooda, resident of KailashColony Rohtak, the name of the person is evidently incorrect since it isParveen (DW4) who is the son of Zile Singh Hooda and resident ofKailash Colony, Rohtak. DW4 and DW5 stated that it was them whohad taken Sandeep to the hospital and neither PW4 nor PW5 were presentat the scene of the occurrence.

DEF

A18. Learned Counsel appearing on behalf of the respondent soughtto submit that the presence of PW5 at the scene of occurrence iscorroborated by the fact that the shirt of the track suit of the deceasedwas handed over by PW5 to the police and it had been examined in thethird FSL report. The handing over of the track suit of the deceasedSandeep to the police at the hospital by PW5 would indicate his presenceBat PGIMS, Rohtak but does not establish that PW4 or PW5 were eye-witnesses to the incident which took place near the law department atthe University. As matter of fact, DW5 in the course of his examinationstated that he and DW4 had informed the father and brother of thedeceased and that the police had also recorded their statements. TheCpresence of DW4 is reasonable inference which emerges from theruqqa. For reasons best known to the prosecution, neither DW4(Parveen) nor DW5 (Sikandar) were produced as witnesses and thefailure of the prosecution to lead the evidence of DW4 (Parveen) is amatter which has bearing on the issue as to whether PW4 and PW5were genuine eye-witnesses at the scene of occurrence. The materialDand evidence which has emerged on the record is sufficient to castdoubt on their presence at the scene of occurrence. Additionally, theSessions Court did not deal with the depositions of DW4 and DW5, saveand except for stating that their deposition on the age of the assailantsbeing around 30-35 years, did not inspire confidence. The discussion inEthe judgment of the Sessions Court on this crucial aspect lacks properevaluation of the evidence at hand.

19. In this background, it is necessary to notice that according tothe FIR which was lodged on complaint by PW4, there was previousenmity/quarrel between the deceased and the accused. PW4, in theFcourse of his cross-examination stated that the deceased was facingtrial in 2-3 cases, in some of which he had been acquitted. However,PW4 expressed ignorance about whether the deceased was co-accusedwith accused Rajesh alias Sarkari. Moreover, he stated that he did notknow the accused Rajesh on account of his being co-accused withSandeep in case bearing FIR No. 341 dated 23 June 2001 underGSections 454/380 of the IPC at Police Station, Civil Lines, Rohtak orwhether they were arrested in the case. He denied the suggestion thatSandeep and Rajesh appeared together in the case and that PW4 hadvisited the court on each and every date of hearing of that case, in spiteof PW4 being surety in that case for the deceased Sandeep. ContraryHto what was stated in the FIR, PW4 in course of his cross examination

stated that the deceased had no previous enmity with any of the accusedbefore the occurrence. PW5, in the course of his cross- examination,was confronted with the fact that the deceased had been facing trial incriminal cases and specifically admitted that the deceased was facingcriminal trial in 2-3 matters, where he was acquitted on account of acompromise. PW5 also stated that he was unaware as to whetherSandeep was co-accused together with Rajesh in case bearing FIRNo. 341 under Sections 454 and 380 of the IPC. However, he stated:

“It is correct to suggest that I and my father used to come to thecourt when my brother Sandeep alias Bhander and present accusedRajesh alias Sarkari were being produced in the court on variousdates of hearings. I do not know as to who had the engaged thecounsel for my brother in that case and who stood surety forhim”.

20. The fact that the deceased was facing trial in other cases wasalso stated in the course of DW4’s examination-in-chief. This aspect ofthe case would be of particular relevance to determine whether anadverse inference should be drawn, as the State has suggested, to therefusal of the appellants to submit themselves to test identificationparade. This aspect will be dealt with in subsequent part of the judgment.

FSL Reports

21. Now while considering this aspect of the record, it must benoticed that the weapons which are alleged to have been used by thetwo appellants in the course of the crime were, according the prosecution,seized in connection with another FIR No. 311 under Section 307 readwith Section 34 of the IPC and Sections 25, 54, 59 of the Arms Act,registered on 19 May 2006 at Police Station Civil Lines, Rohtak, againstboth the appellants. There are two FSL reports pertaining to FIR No.311:

1) The first FSL report dated 12 March 2007 pertains to threeparcels containing:

(i)clothes of the one injured Kuldeep in that case; and

(ii)One 7.65mm fired bullet stated to have been taken fromthe body of the injured marked BC/1; and four 7.65mmfired pistol cartridges cases and one 7.65 live pistolcartridges collected at the place of occurrence (marked C/1 to C/4 and L/1).H

The first FSL report is to the following effect:

“LABORATORY EXAMINATION

The class as well as individual characteristic marks present on7.65mm fired cartridge cases marked C/1 to C/4 were examinedand inter-compared under stereo and comparison microscope.7.65mm fired bullet marked BC/1 was also examined under stereomicroscope.

The holes on the clothes contained in parcel No. 1 were examinedfor firearm discharge residues. Lead was detected from themargins of the holes on T-shirts and paints. The margins of theholes on the T-shirt and paints contained in parcel No. 1 werealso examined under stereo microscope.

Based on the examination carried out in the laboratory, the resultof analysis is as under:

RESULT

1.7.65mm fired cartridge cases marked C/1 to C/4 have beenfired from the one and same fire arm.

2.7.65mm fired bullet marked BC/1 has been fired from aCountry made firearm.

3.Holes on the T-shirt and the paints contained in parcel No.1 have been caused by bullet projectiles.

4.Report in original from Serology division is enclosedherewith.

FNote: After examination exhibits examined in the Ballistics divisionwere resealed along with the original wrappers with the seals of L.S.Y.(BALL) FSL (H).”

The FSL report has been prepared by LS Yadav, Senior ScientificOfficer (Ballistics) at the Forensic Science Laboratory, Madhuban,GKarnal.

2) The second FSL report dated 25 September 2007 (describedas part report in connection with FIR No. 311) deals with 4 parcelscontaining:

(i)one pistol chambered for 7.65mm cartridges along with amagazine bearing No. 7111, one 7.65mm fired cartridge caseand one 7.65mm live cartridge stated to have been recoveredfrom accused Rajesh. The pistol was marked W/1 and thecartridge case C/5;

(ii)one pistol chambered for 7.62mm/0.30” cartridges andmagazine and one 7.62mm misfired cartridge stated to havebeen recovered from accused Ajay. The pistol was markedW/2 and the misfired cartridge MC/1;

(iii)one 7.65mm fired bullet (already market BC/1 in FSL No.F-06/2193) referred to in the first FSL report; and

(iv)four 7.65mm fired cartridge cases and one 7.65mm livecartridge (the fired cartridges marked C/1 to C/4 in thefirst FSL report).

The second FSL report contains the following:

“LABORATORY EXAMINATION

Products of combustion of smokeless powder were detected fromthe barrels of pistols marked W/1 (chambered for 7.65mmcartridges), w/2 (Chambered for 7.62mm/.30.” cartridges). Testfirings were done in the laboratory from pistols marked W/1 &W/2. Their firing mechanism were found in working order.

The class as well as individual characteristic marks present on7.65mm fired cartridge cases C/1 to C/5, 7.62mm/.30" misfiredcartridge marked MC/1, 7.65mm fired bullet BC/1 and those ontest fired cartridge cases and bullets fired from pistols marked W/1 (chambered for 7.65mm cartridges), W/2 (chambered for7.62mm/30" cartridges) were examined and compared with theirrespective caliber/bore under stereo and comparison microscope.

Based on the examination carried out in the laboratory, the resultof analysis Is as under.

RESULT

1.Pistols marked W/1 (chambered for ·7.65mm cartridges),W/2 (chambered for 7.62mm/.30" cartridges) are firearmsas defined in the Arms Act 54 of 1959. Their firing

mechanism were found in working order. Pistols W/1 &W/2 had been fired through.

2.7.65mm fired cartridge case marked C/5 has been firedfrom pistol marked W/1 (chambered for 7.65mm cartridges)and not from any other firearm even of the same make andBbore/calibre, because every firearm has got its ownindividual characteristic marks.

3.7.62mm misfired cartridge marked MC/1 has missed- firefrom pistol marked W/2 (chambered for 7.62mm/.30"cartridges)

4.7.65mm fired cartridge cases marked C/1 to C/4 and7.65mm fired bullet BC/1 have not been fired from pistolmarked W/1 (chambered for 7.65mm cartridges)

Note :- i) After examination, exhibits were resealed alongwiththeir original wrappers with the seal of L.S.Y, SSO (BALL)DFSL.(H).

ii) One number of 7.65mm live cartridge received in parcelNo. IV has been used in test firings in the laboratory.”

The second FSL report has also been prepared again by LS Yadav,Senior Scientific Officer (Ballistic) at the FSL, Madhuban Karnal.E

3) The third FSL report dated 29 November 2007 in the presentcase is marked as Exhibit PD. The third FSL report is with reference toa forwarding memo of the Deputy Superintendent of Police (HO Rohtak)dated 31 December 2006 regarding five sealed parcels in connectionwith FIR No. 781 dated 26 December 2006 under Section 302 read withF34 of the IPC and Sections 25, 54 and 55 of the Arms Act at PoliceStation Civil Lines, Rohtak. The forwarding memo is stated to havebeen received by the FSL on 8 January 2007. The FSL report contains adescription of five articles in the parcels as follows:

(i)blood stained earth lifted from the place of occurrence;

(ii)seven 7.62mm mauser pistol fired cartridge cases and one7.62mm mauser pistol fired bullet stated to have beenrecovered from the place of occurrence. The cartridge casesmarked as C/1 to C/3 and the bullet BC/1;

(iii)blood-stained cloth recovered from the car by the witnessAand blood- stained clothes of the deceased; and

(iv)two 7.62mm deformed and mutilated fired bullets, two leadpieces stated to have been recovered from the body of thedeceased (the bullets are BC/2, BC/3, and the lead piecesare BC/4 and BC/5).

The third FSL report contains the following:

“LABORATORY EXAMINATION

The class as well as the individual characteristic marks presenton 7.62mm mauser pistol fired cartridge cases marked C/1 to C/7 and 7.62mm mauser pistol fired bullets marked BC/1 to BC/3and those on test carriages and test bullets fired from countrymade pistol marked W/2 (chambered for 7.62mm cartridges)[Received in case FSL No. 07/F-3937 FIR No. 311 dated 19.05.06U/S 307/34 IPC & 25/54/59 A.Act P.S Civil Line Rohtak recoveredon 25.06.07) were examined and compared under stereo andcomparison microscope.

The clothes contained in parcel No. III & IV were examined forthe presence of gunshot discharge residues. Copper and lead intraces were detected from the margins of the holes on the clothescontained in parcels No III & IV. The holes on the clothes werealso examined under stereo microscope.

The lead pieces marked BC/4 & BC/5 contained in parcel No. Vwere examined. Lead piece marked BC/4 was found to be 455”revolved bullet. No regular rifling marks were observed on BC/4when examined under stereomicroscope.

Based on the examination carried out in the laboratory, the resultof analysis is as under:

RESULT

1.The 7.62mm fired cartridge cases marked C/1 to C/7 andG7.62 mm fired bullets marked BC/1 to BC/3 have been fireda country made pistol marked W/2 chambered for 7.62mmcartridges) [Received in case FSL No. 07/F-3937 FIR No.311 dated 19.05.06 U/S 307/34 IPC & 25/54/59 A.Act PSCivil Line Rohtak recovered on 25.6.07 Rajesh @ Sarkare)

and not from any other firearm even of same make andbore, because every firearm has got its own individualcharacteristics marks.

2.The holes on the clothes contained in parcel No. III & IVhave been caused by bullet projectiles.

3.The lead piece marked BC/5 contained in parcel No. Vcould form part of core of bullet.

4.The lead piece marked BC/4 was found to be deformedand mutilated .455” revolver bullet. No regular rifling markswere observed on BC/4.

5.Report in original from Serology division is enclosedherewith.

Note:-i) Exhibits examined in the Ballistics Division wereresealed alongwith their original wrappers with the seal ofA.D.(BALL)/ FSL (H).”

The third FSL report has been prepared by RK Koshal,Assistant Director (Ballistics) at the Forensic ScienceLaboratory, Madhuban, Karnal.

22. In evaluating the third FSL report, three crucial aspects needEto be flagged at this stage: first, the FSL report contains comparisonand analysis of what is described in the result as “country made pistolmarked W/2 chambered for 7.62mm cartridges”; second, the FSL reportcontains no reference to the pistol which was marked as W/1 in thesecond FSL report dated 25 September 2007 in reference to FIR No.311 and third, the above extract under the result section indicates thatFpistol W/2 (which is the only pistol analysed) was recovered from Rajeshalias Sarkari in the course of the investigation in FIR No. 311. The aboveaspects have crucial bearing on the weight to be ascribed to the thirdFSL report.

23. The three aspects which have been highlighted aboveGdemonstrate that, out of the alleged two recoveries of the pistols whichwere marked as W/1 and W/2 in the course of the investigation into FIRNo. 311, only one of the two pistols, namely W/2, has been analysedwith reference to the cartridges and fired bullets stated to have beenrecovered from the scene of offence in the present case. Pistol W/1, asHthe second FSL report dated 25 September 2007 in relation to FIR No.

311 indicates, was alleged by the prosecution to have been recovered atthe behest of accused Rajesh while pistol W/2 was allegedly recoveredfrom accused Ajay. The third FSL report in the present case contains aballistics analysis of only one of the two pistols namely W/2 and not W/1. Moreover, the third FSL report contains an erroneous statement thatW/2 was recovered at the behest of Rajesh when, as we have seen, W/2 is recovery which the prosecution alleges to have been made fromaccused Ajay in the course of the investigation in the FIR No. 311. PistolW/1 was, in other words, clearly not made available to the examiner forthe purpose of ballistic examination.

24. Learned Senior Counsel appearing on behalf of the appellantsalso highlights the following discrepancies:

(i)While the recoveries which were made at site are describedas 7.62/25mm cartridges, the FSL report in the context ofFIR No. 311 contains reference to 7.62/30mm cartridges;

(ii)What was test fired for the purposes of the ballisticDexamination in FIR No.311 were the 7.62/30mm bullets;and

(iii)While the third FSL report dated 29 November 2007 in thepresent case refers to mauser pistol fired bullets, theconclusion is at variance in that it refers to country madepistol.

25. The submission of the appellants is that the weapon whichwas seized in the context of the earlier investigation was not madeavailable to the examiner in the present case at all. This submission wassought to be refuted by reason of the fact that test firing of weapon W/2 did take place.

26. Now in this background an important facet of the matter whichrequires to be noticed was that neither the author of the first and secondFSL reports in the context of the seizure and recovery of weapons W/1and W/2 in FIR No. 311; nor the author of the third FSL report in thecontext of FIR No.781 (the FIR in the present case) have been examinedby the prosecution in the course of the evidence.

27. The learned Counsel appearing on behalf of the State soughtto explain the failure of the prosecution to examine the ballisticsexaminers in evidence by submitting that the FSL reports were, as

Amatter of fact, filed by the defence after the statements of the appellantsunder Section 313 of the CrPC were recorded. This submission was, inparticular, urged in response to the grievance of the appellants that in thestatements under Section 313, only Exhibits PD and PF were drawn tothe attention of the accused. Learned Counsel for the State urged thatsince the FSL reports have been produced by the defence, the failure ofBthe prosecution to examine the ballistics examiner stands explained.

28. In this context, it would now be necessary to advert briefly tothe legal position. In Mohinder Singh vs State[10] (“Mohinder Singh”),a three judge Bench of this Court observed:

C“12. In case where death is due to injuries or woundscaused by lethal weapon, it has always been consideredto be the duty of the prosecution to prove byexpertevidence that it was likely or at least possible for the injuriesto have been caused with the weapon with which and in themanner in which they are alleged to have been caused. It isDelementary that where the prosecution has definite orpositive case, it must prove the whole of that case. In thepresent case, it is doubtfulwhether the injuries which areattributed to the appellant were caused by gun or by arifle.Indeed, it seems more likely that they were caused by aErifle than by gun, and yet the case for the prosecution is that theappellant was armed with gun and, in his examination, it wasdefinitely put to him that he was armed with the gun P-16. It isonly by the evidence of duly qualified expert that it couldhave been ascertained whether the injuries attributed tothe appellant were caused by gun or by rifle and suchFevidence alone could settle the controversy as to whetherthey could possibly have been caused by firearm beingused at such close range as is suggested in the evidence.It is clear, and it is also the prosecutioncase, that only 2shots were fired at Dalip Singh and one of the crucial pointsGwhich the prosecution had to prove was that these shotswere fired by two persons and not by one man, and both theshots were fired in such manner and from such distance asis alleged by the eyewitnesses.”

(emphasis supplied)

29. The decision in Mohinder Singh was considered by co-ordinate Bench of this Court also consisting of three judges in GurucharanSingh vs State of Punjab[11](“Gurucharan Singh”). In GurucharanSingh, the Court noted that in the earlier decision, the case of theprosecution was that the accused had shot the deceased with gun butit appeared likely that the injury on the deceased had been inflicted by arifle and there was no evidence of duly qualified expert to prove thatthe injuries had been caused by gun. Moreover, the nature of the injurieswas such that the shots must have been fired by more than one personand there was no evidence to show that another person had also engagedin the shooting. The oral evidence was not of disinterested witnesses.Hence, it was held that in that backdrop, the failure to examine an expertwas serious infirmity in the prosecution case. Explaining the facts asthey emerged in the earlier decision in Mohinder Singh, the three judgeBench in Gurucharan Singh held:

“41. […] It would be noticed that these observations were madein case where the prosecution evidence suffered from seriousinfirmities and in determining the effect of these observations, itwould not be fair or reasonable to forget the facts in respect ofwhich they came to be made. These observations do not purportto lay down an inflexible Rule that in every case where an accusedperson is charged with murder caused by lethal weapon, theprosecution case can succeed in proving the charge only if anexpert is examined. It is possible to imagine cases where the directevidence is of such an unimpeachable character and the natureof the injuries disclosed by post-mortem notes is so clearlyconsistent with the direct evidence that the examination of ballisticexpert may not be regarded as essential. Where the directevidence is not satisfactory or disinterested or where the injuriesare alleged to have been caused with gun and they prima facieappear to have been inflicted by rifle, undoubtedly the apparentinconsistency can be cured or the oral evidence can becorroborated by leading the evidence of ballistic expert. In whatcases the examination of ballistic expert is essential for the proofof the prosecution case, must naturally depend upon thecircumstances of each case. Therefore, we do not think that MrPurushottam is right in contending as general proposition that in

Aevery case where firearm is alleged to have been used by anaccused person, in addition to the direct evidence, prosecutionmust lead the evidence of ballistic expert, however good thedirect evidence may be and though on the record there may be noreason to doubt the said direct evidence.”

BHence, in Gurucharan Singh, this Court held that there is noinflexible rule to the effect that the prosecution could succeed in provingthe charge of murder alleged to have been caused with lethal weapononly if an expert is examined. Where the direct evidence is of anunimpeachable character and the nature of the injuries disclosed by thepost-mortem reports is clearly consistent with the direct evidence, theCexamination of ballistics expert may not be essential. Contrarily, theevidence of ballistics expert would assume significance where directevidence is not satisfactory, or is of interested witnesses or where thenature of the injuries requires expert corroboration. In other words,whether the examination of ballistics expert is necessary is dependentDupon the factual context as it emerges in each case.

30. In Sukhwant Singh vs State of Punjab[12](“SukhwantSingh”), two judge Bench of this Court held that the omission of theinvestigating officer to send recovered empty and sealed pistol to theballistics expert for examination was significant omission. In that context,Ethe bench observed:

“21. […] It hardly needs to be emphasised that in cases whereinjuries are caused by firearms, the opinion of the ballistic expertis of considerable importance where both the firearm and thecrime cartridge are recovered during the investigation to connectFan accused with the crime. Failure to produce the expert opinionbefore the trial court in such cases affects the creditworthinessof the prosecution case to great extent.”

31. In State of Punjab vs Jugraj Singh[13](“Jugraj Singh”), atwo judge Bench of this Court distinguished the decision in SukhwantGSingh and noted that in that case the evidence of two eye-witnesseswas held to be inadmissible since they were not examined in terms ofSection 138 of the Evidence Act and the court did not rely on the soletestimony of PW3. Hence, the failure to produce an expert opinion was

12 (1995) 3 SCC 367H13 (2002) 3 SCC 234

held to have affected the credit worthiness of the prosecution case. InJugraj Singh, the Court held that: “nowhere it was held [in SukhwantSingh] that on account of failure to produce the expert opinion theprosecution version in all cases should be disbelieved”. Accordingly, inJugraj Singh, the Court noted:

“18. In the instant case the investigating officer has categoricallystated that guns seized were not in working condition and he, inhis discretion, found that no purpose would be served by sendingthe same to the ballistic expert for his opinion. No further questionwas put to the investigating officer in cross-examination to findout whether despite the guns being defective the fire pin was inorder or not. In the presence of convincing evidence of twoeyewitnesses and other attending circumstances we do not findthat the non-examination of the expert in this case has, in anyway, affected the creditworthiness of the version put forth by theeyewitnesses.”

32. In Vineet Kumar Chauhan vs State of UP[14], two judgeBench of this Court has held:

“11. It cannot be laid down as general proposition that in everycase where firearm is allegedly used by an accused person, theprosecution must lead the evidence of ballistic expert to provethe charge, irrespective of the quality of the direct evidenceavailable on record. It needs little emphasis that where directevidence is of such an unimpeachable character, and the natureof injuries, disclosed by the post- mortem notes is consistent withthe direct evidence, the examination of ballistic expert may not beregarded as essential. However, where direct evidence is notavailable or that there is some doubt as to whether the injuriescould or could not have been caused by particular weapon,examination of an expert would be desirable to cure an apparentinconsistency or for the purpose of corroboration of oral evidence.”

33. In Govindaraju vs State[15], two judge Bench of this Courtdrew an adverse inference where no person from the FSL had beenexamined. In drawing this conclusion, the Court referred to the non-production of material witnesses like the doctor, who performed the post-

14 (2007) 14 SCC 660

15 (2012) 4 SCC 722

Amortem and examined the victims, and the head constable and constable,who reached the site upon occurrence. Since the other witnessesproduced by the prosecution had also turned hostile, the Court drew anadverse inference against the prosecution for not examining thesematerial witnesses. The Court noted:B“63. There is certainly some content in the submissions made

B“63. There is certainly some content in the submissions madebefore us that non-production of material witnesses like the doctor,who performed the post-mortem and examined the victim beforehe was declared dead as well as of the Head Constable and theconstable who reached the site immediately upon the occurrenceand the other two witnesses turning hostile, creates reasonableCdoubt in the case of the prosecution and the court should alsodraw adverse inference against the prosecution for not examiningthe material witnesses. We have already dwelled upon appreciationof evidence at some length in the facts and circumstances of thepresent case. There is deficiency in the case of the prosecutionDas it should have proved its case beyond reasonable doubt withthe help of these witnesses, which it chose not to produce beforethe court, despite their availability.

66. This Court in Takhaji Hiraji [(2001) 6 SCC 145 : 2001 SCCE(Cri) 1070] clearly stated that material witness is one who wouldunfold the genesis of the incident or an essential part of theprosecution case and by examining such witnesses the gaps orinfirmities in the case of the prosecution could be supplied. Ifsuch witness, without justification, is not examined, inferenceFagainst the prosecution can be drawn by the court. The fact thatthe witnesses who were necessary to unfold the narrative of theincident and though not examined, but were cited by theprosecution, certainly raises suspicion. When the principalwitnesses of the prosecution become hostile, greater is therequirement of the prosecution to examine all other materialGwitnesses who could depose in completing the chain by provenfacts. This view was reiterated by this Court in Yakub IsmailbhaiPatel v. State of Gujarat [(2004) 12 SCC 229 : 2004 SCC (Cri)196].”

34. The precedent which we have reviewed above would thusHindicate that there is no inflexible rule which requires the prosecution to

examine ballistics examiner in every case where murder is alleged tohave been caused with the use of fire arm. The decision in MohinderSingh (1953) has since been explained in Gurucharan Singh (1963) bya co-ordinate Bench. Thereafter, the principle which has emerged fromthe line of authority which we have noticed earlier, is that the failure ofthe prosecution in given case, to examine ballistics expert has to beassessed bearing in mind the overall context of the nature of the evidencewhich is available. When direct evidence of an unimpeachable characteris available and the nature of injuries is consistent with the direct evidence,the examination of ballistics expert need not be insisted upon as acondition to the prosecution proving its case. On the other hand, wheredirect evidence is not available or there is doubt in regard to the natureof that evidence, the failure to examine the ballistic examiner wouldassume significance. In the present case, the weapons of offence werealleged to have been recovered in the context of the investigation inanother FIR (FIR No.311 dated 19 May 2006). The weapons weremarked as W/1 and W/2 in that case. The third FSL report arising out ofthe investigation in FIR No. 781 in the present case does not deal withweapon W/1 at all. Moreover, as we have noted earlier, the third FSLreport wrongly attributes weapon W/2 to accused Rajesh alias Sarkari.Whether or not weapon W/2 had been made available to the ballisticsexaminer was matter which could have been explained if the prosecutionwere to lead his evidence. The prosecution cited ballistics examiner asa witness and yet, did not lead his evidence. This must be juxtaposed inlight of the fact that the eye-witness account of PW4 and PW5 is notfree from doubt. We have also analysed the evidence of PW4 and PW5and have noted that there is grave element of doubt as to whether theywere witnesses at the scene of occurrence. In this context, the Courtmust therefore hold that the discrepancies which have been noticed inthe FSL report could have best been explained by the authors of FSLreports both in FIR No. 311/2006 and FIR No. 781/2006. This not havingbeen done, the accused would, in our view, be entitled to the benefit ofdoubt.

35. The appellants have urged that PW4 was not an eye-witnessas he had deposed that Sandeep was fired at from distance of 4-5 feetwhich is not supported by the medical evidence. They urge that theblackening of few firearm injuries on the deceased’s body is conclusiveproof that the firing must have been done from closer distance, which

40SUPREME COURT REPORTS

Acould be less than 2 feet.[16] Since the depositions of PW4 and PW5suffer from several material contradictions and improvements; and thenon-examination of the ballistics expert in light of serious controversiesin the FSL reports has cast shadow on the prosecution’s story, weneed not deal with the additional argument on blackening of injuries.

BRefusal to undergo Test Identification Parade[17]

36. The prosecution has submitted that an adverse inference shouldbe drawn against the appellants for refusing to submit themselves to aTIP. Before we deal with the circumstances in which the appellantsdeclined TIP, it becomes essential to scrutinize the precedent from thisCCourt bearing on the subject. line of precedent of this Court has dwelton the purpose of conducting TIP, the source of the authority of theinvestigator to do so, the manner in which these proceedings should beconducted, the weight to be ascribed to identification in the course of aTIP and the circumstances in which an adverse inference can be drawnagainst the accused who refuses to undergo the process. The principlesDwhich have emerged from the precedents of this Court can be summarizedas follows:(i)The purpose of conducting TIP is that persons who claimto have seen the offender at the time of the occurrenceidentify them from amongst the other individuals withoutEtutoring or aid from any source. An identification parade, inother words, tests the memory of the witnesses, in orderfor the prosecution to determine whether any or all of themcan be cited as eye-witness to the crime;

(ii)There is no specific provision either in the CrPC or theFIndian Evidence Act, 1872[18] which lends statutory authorityto an identification parade. Identification parades belong tothe stage of the investigation of crime and there is noprovision which compels the investigating agency to holdor confers right on the accused to claim TIP;G(iii)Identification parades are governed in that context by theprovision of Section 162 of the CrPC;

16 Relies on (2016) 2 SCC 60717 TIPH18 Evidence Act

(iv)A TIP should ordinarily be conducted soon after the arrestAof the accused, so as to preclude possibility of the accusedbeing shown to the witnesses before it is held;

(v)The identification of the accused in court constitutessubstantive evidence;

(vi)Facts which establish the identity of the accused personare treated to be relevant under Section 9 of the EvidenceAct;

(vii)A TIP may lend corroboration to the identification of thewitness in court, if so required;

(viii) As rule of prudence, the court would, generally speaking,look for corroboration of the witness’ identification of theaccused in court, in the form of earlier identificationproceedings. The rule of prudence is subject to the exceptionwhen the court considers it safe to rely upon the evidenceof particular witness without such, or other corroboration;D

(ix)Since TIP does not constitute substantive evidence, thefailure to hold it does not ipso facto make the evidence ofidentification inadmissible;

(x)The weight that is attached to such identification is matterto be determined by the court in the circumstances of thatparticular case;

(xi)Identification of the accused in TIP or in court is notessential in every case where guilt is established on thebasis of circumstances which lend assurance to the natureand the quality of the evidence; and

(xii)The court of fact may, in the context and circumstances ofeach case, determine whether an adverse inference shouldbe drawn against the accused for refusing to participate ina TIP. However, the court would look for corroboratingmaterial of substantial nature before it enters finding inregard to the guilt of the accused.

37. These principles have evolved over period of time andemanate from the following decisions:

A1. Matru v. State of U.P. [(1971) 2 SCC 75 : 1971 SCC(Cri) 391]

2. Santokh Singh v. Izhar Hussain [(1973) 2 SCC 406 :1973 SCC (Cri) 828]

3. Malkhansingh v. State of M.P. [(2003) 5 SCC 746 :B2003 SCC (Cri) 1247]

4. Visveswaran v. State [(2003) 6 SCC 73]

5. Munshi Singh Gautam v. State of M.P. [(2005) 9 SCC631]

6. Sidhartha Vashisht @ Manu Sharma v. State (NCT ofDelhi) [(2010) 6 SCC 1],

7. Ashwani Kumar and Ors. v. State of Punjab (2015) 6SCC 308.

8. Mukesh and Ors. v. State for NCT of Delhi and Ors.DAIR 2017 SC 2161.

38. In the backdrop of these principles, it would be necessary toscrutinize the evidence in the present case. PW4 in the course of hiscross examination stated that the deceased had been facing trial in 2-3cases and that he was surety for his son. He claimed to be ignorant ofEthe fact that the deceased was co- accused with Rajesh alias Sarkariin criminal case arising out of FIR No. 341/2001, under Sections 454and 380 of the IPC at Police Station Civil Lines, Rohtak, inspite of beingthe deceased’s surety in the same. Nor did he know whether both ofthem had been arrested in the case arising out of FIR No. 341 on 24FJune 2001. Similarly, PW5, during the course of his cross-examination,professed that he did not know whether the deceased was the co-accusedwith Rajesh alias Sarkari in the case arising out of FIR No. 341. Butimmediately thereafter suggestion was put to him, which he accepted,that he and his father (PW4) used to go to the court when his brother–the deceased Sandeep – and the present accused Rajesh alias SarkariGwere being produced in the court on various dates of hearings. He deniedthe suggestion that PW4 would visit on every date of hearing in court.When PW5 was questioned during the course of cross- examination onwhether he had seen the photographs of the accused Rajesh in thenewspapers, he said:

“I have never seen the photographs of accused Rajesh aliasSarkari in the newspapers. The photos of this accused must havebeen published in the newspapers so many times but I have neverseen his photographs in the newspaper. I hate the face of Rajeshalias Sarkari and due to this reason, I did not see his photograph inthe newspaper’’.

39. Learned Counsel appearing on behalf of the State has soughtto urge that out of all the three publications which were proved in thecourse of the evidence, only one contained the names of the accused.However, the central point in this case is whether on the basis of significantaspects which have emerged during the course of cross-examination ofPW4 and PW5, an adverse inference should be drawn against theappellants for having refused to undergo TIP. The evidence on therecord indicates that not only did the deceased have several criminalcases against him, some of which had ended in acquittal on account of acompromise, but that one of the appellants, Rajesh alias Sarkari, and thedeceased were co-accused in case arising out of FIR No. 341 dated23 June 2001 under Sections 454 and 380 of the IPC at Police StationCivil Lines, Rohtak. Evidently both of them had been arrested inconnection with the case, which is why PW5 deposed that his fatherPW4 used to go to court when Sandeep and Rajesh were being producedon various dates of hearing. PW4 also stated that he has stood suretyfor his son in various criminal cases. In this backdrop, the contention ofthe appellants that the refusal to undergo TIP is borne out by the factthat Sandeep and Rajesh were known to each other prior to theoccurrence and that PW4, who is prime eye-witness, had seen Rajeshwhen he would attend the court during the course of the hearings, cannotbe brushed aside. Consequently, in case, such as the present, the Courtwould be circumspect about drawing an adverse inference from thefacts, as they have emerged. In any event, as we have noticed, theidentification in the course of TIP is intended to lend assurance to theidentity of the accused. The finding of guilt cannot be based purely onthe refusal of the accused to undergo an identification parade. In thepresent case, we have already indicated the presence of the allegedeye- witnesses PW4 and PW5 at the scene of the occurrence is seriouslyin doubt. The ballistics evidence connecting the empty cartridges andthe bullets recovered from the body of the deceased with an allegedweapon of offence is contradictory and suffers from serious infirmities.

AHence, in this backdrop, refusal to undergo TIP assumes secondaryimportance, if at all, and cannot survive independently in the absence ofit being substantive piece of evidence.

40. For the above reasons, we have arrived at the conclusion thatthe prosecution has failed to establish its case beyond reasonable doubt.BThe appellants are, hence, entitled to the benefit of doubt and are acquittedof the offence with which they have been charged. The Court is apprisedof the fact that the appellants have undergone over 12 years ofimprisonment. Consequent on the present judgment acquitting theappellants, they shall be released and their bail bonds be cancelled unlessthey are wanted in connection with any other case. The appeal is allowedCin the above terms.

41. Pending application(s), if any, shall stand disposed of.

Ankit Gyan

Appeal allowed.