Rajesh @ Raja And Ors vs State Of Haryana on 29 November, 2019

[Cites 23, Cited by 7]

Punjab-Haryana High Court

Rajesh @ Raja And Ors vs State Of Haryana on 29 November, 2019

Equivalent citations: AIRONLINE 2019 P AND H 1336

Bench: Alka Sarin

  IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                     CRA-D No.285-DB of 2015 (O&M)
                     DATE OF DECISION: 29.11.2019
Rajesh @ Raja and others
                                                               .....Appellants
                                   versus

State of Haryana
                                                             .....Respondent

CORAM:-     HON'BLE MR. JUSTICE AJAY TEWARI
            HON'BLE MRS. JUSTICE ALKA SARIN

Present:    Mr. Navkiran Singh, Advocate for appellant No.2
            Mr. K.D.S. Hooda, Advocate for appellants No.3,5 and
            6/Amicus Curiae
            Mr. Raj Kapoor Malik, Advocate for appellant No.4
            Mr. K.S.Khehar, Advocate for appellant No.7
            Ms. Palika Monga, Deputy Advocate General, Haryana
                 ..

ALKA SARIN, J.:

The present appeal has been filed by seven accused- appellants challenging the judgment of conviction and order of sentence dated 20.01.2015 passed by the Additional Sessions Judge, Kurukshetra, vide which the appellants have been convicted and sentenced as under:-

"1. Rajesh alias Raja Under Section 148 of To undergo rigorous imprisonment for Indian Penal Code, the period of two years and to pay a 1860 fine of Rs.1,000/- (one thousand). In default of payment of find, he shall further undergo simple imprisonment for a period of fifteen days Under Section 302 To undergo life imprisonment and to pay read with section a fine of Rs.40,000/- (forty thousand). 149 of Indian Penal In default of payment of fine, he shall Code, 1860. further undergo simple imprisonment for a period of six months.

Under     Section    307     To undergo rigorous imprisonment for



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read with section         the period of five years and to pay a
149 of Indian Penal       fine of Rs.10,000/- (ten thousand). In

Code, 1860. default of payment of fine, he shall further undergo simple imprisonment for a period of two months.

Under Section 120-B To undergo life imprisonment and to pay of Indian Penal a fine of Rs.10,000/- (ten thousand). Code, 1860. In default of payment of fine, he shall further undergo simple imprisonment for a period of two months.

2. Vijay Kumar Under Section 148 of To undergo rigorous imprisonment for Indian Penal Code, the period of two years and to pay a 1860. fine of Rs.1,000/- (one thousand). In default of payment of fine, he shall further undergo simple imprisonment for a period of fifteen days.

Under Section 302 To undergo life imprisonment and to pay read with section a fine of Rs.40,000/- (forty thousand). 149 of Indian Penal In default of payment of fine, he shall Code, 1860. further undergo simple imprisonment for a period of six months.

Under Section 307 To undergo rigorous imprisonment for read with section the period of five years and to pay a 149 of Indian Penal fine of Rs.10,000/- (ten thousand). In Code, 1860. default of payment of fine, he shall further undergo simple imprisonment for a period of two months.

Under Section 120-B To undergo life imprisonment and to pay of Indian Penal a fine of Rs.10,000/- (ten thousand). Code, 1860. In default of payment of fine, he shall further undergo simple imprisonment for a period of two months.

3. Naresh Kumar Under Section 148 of To undergo rigorous imprisonment for Indian Penal Code, the period of two years and to pay a 1860. fine of Rs.1,000/- (one thousand). In default of payment of fine, he shall further undergo simple imprisonment for a period of fifteen days.

Under Section 302 To undergo life imprisonment and to pay read with section a fine of Rs.40,000/- (forty thousand). 149 of Indian Penal In default of payment of fine, he shall Code, 1860. further undergo simple imprisonment for a period of six months.

Under Section 307 To undergo rigorous imprisonment for read with section the period of five years and to pay a 149 of Indian Penal fine of Rs.10,000/- (ten thousand). In Code, 1860. default of payment of fine, he shall

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further undergo simple imprisonment for a period of two months.

Under Section 120-B To undergo life imprisonment and to pay of Indian Penal a fine of Rs.10,000/- (ten thousand). Code, 1860. In default of payment of fine, he shall further undergo simple imprisonment for a period of two months.

Under Section 25 of To undergo rigorous imprisonment for Arms Act, 1959. the period of two years and to pay a fine of Rs.3,000/- (three thousands).

In default of payment of fine, he shall further undergo simple imprisonment for the period of one month.

4. Ashok Kumar alias Shoki Under Section 148 of To undergo rigorous imprisonment for Indian Penal Code, the period of two years and to pay a 1860. fine of Rs.1,000/- (one thousand). In default of payment of fine, he shall further undergo simple imprisonment for a period of fifteen days.

Under Section 302 To undergo life imprisonment and to pay read with section a fine of Rs.40,000/- (forty thousand). 149 of Indian Penal In default of payment of fine, he shall Code, 1860. further undergo simple imprisonment for a period of six months.

Under Section 307 To undergo rigorous imprisonment for read with section the period of five years and to pay a 149 of Indian Penal fine of Rs.10,000/- (ten thousand). In Code, 1860. default of payment of fine, he shall further undergo simple imprisonment for a period of two months.

Under Section 120-B To undergo life imprisonment and to pay of Indian Penal a fine of Rs.10,000/-(ten thousand). In Code, 1860. default of payment of fine, he shall further undergo simple imprisonment for a period of two months.

5. Vikas alias Billu Under Section 148 of To undergo rigorous imprisonment for Indian Penal Code, the period of two years and to pay a 1860. fine of Rs.1,000/- (one thousand). In default of payment of fine, he shall further undergo simple imprisonment for a period of fifteen days.

Under Section 307       To undergo rigorous imprisonment for



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read with section         the period of five years and to pay a
149 of Indian Penal       fine of Rs.10,000/- (ten thousand). In

Code, 1860. default of payment of fine, he shall further undergo simple imprisonment for a period of two months.

Under Section 25 of To undergo rigorous imprisonment for Arms Act, 1959. the period of two years and to pay a fine of Rs.3,000/-(three thousands). In default of payment of fine, he shall further undergo simple imprisonment for the period of one month.

6. Suresh alias Tangu Under Section 148 of To undergo rigorous imprisonment for Indian Penal Code, the period of two years and to pay a 1860. fine of Rs.1,000/- (one thousand). In default of payment of fine, he shall further undergo simple imprisonment for a period of fifteen days.

Under Section 25 of To undergo rigorous imprisonment for Arms Act, 1959. the period of two years and to pay a fine of Rs.3,000/- (three thousands).

In default of payment of fine, he shall further undergo simple imprisonment for the period of one month.

7. Ajay Kumar Under Section 148 of To undergo rigorous imprisonment for Indian Penal Code, the period of two years and to pay a 1860. fine of Rs.1,000/- (one thousand). In 4 of 18 ::: Downloaded on - 08-12-2019 08:39:05 ::: CRA-D-285-DB-2015 - 5 -

default of payment of fine, he shall further undergo simple imprisonment for a period of fifteen days.

Under Section 25 of To undergo rigorous imprisonment for Arms Act, 1959. the period of two years and to pay a fine of Rs.3,000/- (three thousands).

In default of payment of fine, he shall further undergo simple imprisonment for the period of one month."

The substantive sentences were ordered to run concurrently.

2. Vide order dated 30.09.2019, Mr. K.D.S. Hooda, Advocate, who is appearing for appellants No.3, 5 & 6 was also appointed as Amicus Curiae to assist the Court on behalf of the unrepresented appellants. At the time of hearing of appeal, all the appellants were duly represented through their respective counsel/Amicus Curiae.

3. The case set up by the prosecution was that on 17.10.2011 at about 5.00 P.M. Sheel Kumar (complainant) along with Sushil, son of his maternal uncle, went to Kurukshetra University to meet Virender Singh (deceased). At about 5.00 P.M. they were all having tea in the Campus Market where he and Sushil sat aside in the tea shop while Virender Singh sat with his friends, namely, 5 of 18 ::: Downloaded on - 08-12-2019 08:39:05 ::: CRA-D-285-DB-2015 - 6 -

Kuldeep alias Babli and Pardeep, who were known to him. At about 5.45 P.M. they heard the sound of gunshots and saw 6-7 boys were firing at Virender with weapons like pistols and they also fired at Kuldeep and Pardeep. Virender Singh ran but fell down after a short distance due to blood oozing out of the body. Kuldeep and Pardeep had a narrow escape. They started raising alarm "bachao", "bachao". The assailants, while firing in the air, fled the spot with their respective weapons on motorcycles including two Pulsars and one Splendor motorcycle. According to the complainant there were three boys on each motorcycle. On inquiry, Kuldeep alias Babli disclosed the names of the assailants as Ajay, Vijay, sons of Ram Kishan, Virender alias Kana son of Partap Singh, caste Jat, Ashok alias Shoki, Naresh, Ram Pal and Raja of Bibipur and stated that he could identify the remaining assailants on seeing them. Kuldeep alias Babli also told him (the complainant) that those boys had an old grudge with Virender Singh (deceased). The vehicle of the University Security came to spot and took Virender Singh to LNJP Hospital, Kurukshetra where, during treatment, Virender Singh succumbed to his injuries. On the basis of the said statement/complaint, a formal FIR (Ex.P1) was registered and the appellants/accused were set to face trial under section 148 and 302, 307 read with section 149, 120B and 216 of Indian Penal Code 1860 (IPC) and 25 of Arms Act 1959.

4. To substantiate its case, the prosecution examined as many as 41 witnesses besides producing documentary evidence Ex.P-1 to Ex.P-129.

5. The accused/appellants were examined under section 313 of the Code of Criminal Procedure, 1973, and the incriminating 6 of 18 ::: Downloaded on - 08-12-2019 08:39:05 ::: CRA-D-285-DB-2015 - 7 -

evidence was put to them. They denied all the allegations and pleaded false implication.

6. The defence, in their evidence, examined Sunil, Accounts Clerk as DW-1, Rajender Singh as DW-2, Ajay as DW-3 and Nater Pal Singh as DW-4. The accused also relied upon documents, i.e., statement of Pardeep Kumar as Ex.D1 statement, Statement of Kuldeep as Ex.D2, copy of driving licence of Rajinder Singh as Ex.D3 copy of gun licence of Rajinder Singh as Ex.D4.

7. The evidence led by the prosecution needs closer scrutiny. The most important witnesses were the two eye-witnesses Pardeep Kumar, PW2 and Kuldeep Singh, PW3 and the medical evidence. Their version recorded in the Trial Court judgment reads thus:-

"PW.2 Pardeep Kumar: He has stated that on 17.10.2011 Kuldeep had come to his room in Nar Hari Hostel B- 19, Kurukshetra University, Kurukshetra and he along with Kuldeep had gone to canteen (market) of University to take tea. He further stated that at about 5.15/5.20 p.m. (evening), Virender Kakroad, Sushil Kumar and Sheel Kumar met them in the University Market. He also stated that he along with Virender and Kuldeep sat on the chairs in front of Gopal Canteen to take tea, however, Virender got seated Sushil Kumar and Sheel Kumar inside the canteen. At about 5.30/5.45 p.m. (evening), several students were roaming around in that area and in the meanwhile, six/seven persons while riding on motorcycles came there and immediately, therefore, they started firing shots on him as well as Virender and Kuldeep. He further maintained that as Virender was being fired from all the sides, after running for about six/seven paces, he fell down. He further stated that on the side he was running, accused Vijay, Ajay, Naresh Surehra while armed with weapons were standing and were proclaiming and exhorting to fire shots upon Virender Kakroad. He further stated that Virender was fired shots on his right arm, left knee, three shots on his back and two shots on his head. He 7 of 18 ::: Downloaded on - 08-12-2019 08:39:05 ::: CRA-D-285-DB-2015 - 8 -

further maintained that Virender was lying in a pool of blood. He also stated that apart from Vijay, Ajay, Naresh, he also saw Ashok Maandi, Virender alias Kana, Raja of Bibipur, Ram Pal of Kuchrana, Billu Chabri and Suresh Tangu accused persons on the spot and out of the above said assailants/accused, seven namely Vijay, Ajay, Naresh, Ashok Maandi, Raja Billu, Chabri and Suresh Tangu are present in the Court. He further stated that Virender Kakroad was taken to LNJP Hospital, Kurukshetra in the vehicle of security where Virender Kakroad was declared dead. He also stated that his statement was recorded by the police.

PW-3 Kuldeep Singh: He has stated that on 17.10.2011, he along with Pardeep Kumar had left hostel for market of Kurukshetra University to take tea at about 5.00 p.m. and reached market at about 5.30/5.45 p.m., where Virender and his cousin (bua's son) Sheel Kumar and real brother of Virender, Sushil Kumar met them. He further stated that they started talking each other, in the meanwhile, Virender got seated Sheel Kumar and Sushil Kumar in the Gopal canteen of University. He further maintained that he along with Virender and Pardeep sat outside the above said canteen on the chairs and in the meanwhile, two/four persons having proximity with Virender also arrived there and after some time, some more students also arrived there to meet Virender being student leader. He further stated that thereafter, six/seven persons reached there and encircled Virender and them and started firing. He also stated that they started fleeing from the spot, but Virender on account of fire arm injuries, fell down. He also stated that being down with fire arm injuries and the assailants namely Vijay, Ajay and Naresh Surehra were proclaiming that Virender would not be allowed to leave alive and one of the assailants was giving kick blows to Virender. He also stated that after showing their respective weapons, assailants had sped away on the motor cycles from the spot. He also stated that assailants Vijay, Ajay, Suresh, Vikash alias Billu, Raja Bibipur, Ram Pal Kuchrana, Ashok alias Shoki Maandi, Naresh Surehra and Virender Kana were seen by him on the spot of occurrence and except accused Ram Pal Kuchrana and Virender Kana

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(stated to be expired before arrest), all the above said assailants are present in the Court. He also stated that he came back to the spot where Virender was lying on the ground and Virender was taken to LNJP Hospital, Kurukshetra in a gypsy of security, where Virender was declared dead." PW-4 Dr. Charu: She has tendered her affidavit Ex.P3, wherein she stated about conducting of post-mortem examination of Virender Singh son of Bhag Singh. She stated that in her opinion, cause of death was gun shot injuries to vital organs as described which are ante-mortem in nature and were sufficient to cause of death in ordinary course of events. She further maintained that on 17.10.2011, application Ex.P4 was moved for postmortem examination on the dead body of Virender Singh. She proved the postmortem report as Ex.P5. She further testified about handing over of well-stitched dead body, copy of postmortem report, police papers, sealed parcel of clothes of deceased, sealed box with five pellets and three bullets which were recovered from the dead body of Virender, x-ray films (Ex.P6 to Ex.P13) and two sample seals to the police. She further proved the clothes Ex.P14 to Ex.P18 relating to the deceased Virender Singh."

8. We have heard learned counsel for the parties and with their able assistance gone through the record of the case.

9. Mr. K.D.S. Hooda, argued that there was a delay of six hours in the registration of the FIR, whereas, the police had reached the spot within 5 minutes of the incident. He further argued that the direct evidence in the form of footage of CCTV camera installed there was available which is also admitted by the prosecution but the same was not examined by the prosecution for the purpose of identification of the accused to ascertain as to who were the persons who had actually fired the gunshots at the deceased. It was further argued that no independent witness came forward in spite of the fact that the incident took place in a 9 of 18 ::: Downloaded on - 08-12-2019 08:39:05 ::: CRA-D-285-DB-2015 - 10 -

public place which was crowded by students and public. Further, it was argued that the statement of the complainant Sheel Kumar, PW1, is based on hearsay evidence as he had enquired about the names of the assailants from Pardeep Kumar, PW2.

10. Mr. Navkiran Singh, learned counsel appearing on behalf of appellant No.2, has, in addition to the above-mentioned arguments, argued that appellant No.2 Vijay Kumar did not participate in the commission of the act as no weapon was recovered from him. He further argued that neither PW2 nor PW3 have mentioned that Vijay was carrying any weapon or that he fired any gunshot on the deceased. He further argued that Sushil, who is real brother of the deceased and also an eye-witness of the incident, did not come forward to depose as a witness. This shows that the prosecution case is shrouded with suspicion. He also pointed out that there were contradictions and discrepancies between the first statement of complainant PW1-Sheel Kumar and his examination-in-chief. He further argued that the witnesses were interested ones and, hence, their testimonies could not be relied upon. Learned counsel for appellant No.2 has relied upon the following judicial pronouncements to substantiate his case:-

(i) Jarnail Singh vs. State of Punjab, 1996(1) R.C.R. (Criminal) 465; (ii) Jaleshwar Singh vs. State of Bihar, 2009(3) R.C.R. (Criminal) 887; (iii) Ramuthai vs. State, Rep. By Inspector of Police & anr., 2012(6) R.C.R. (Criminal) 1922; (iv) Nirmal Singh and another vs. State of Bihar, 2005 AIR (SC) 1265; and (v) Uday Singh vs. State of Madhya Pradesh, 2017(3) R.C.R. (Criminal) 630.

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11. For the proposition that delay in lodging of FIR clouds the prosecution case with suspicion, the following judgments have been relied upon:-

(i) Dilawar Singh vs. State of Delhi, 2007(4) R.C.R. (Criminal) 115; (ii) Ganesh Bhavan Patel vs. State of Maharashtra, 1979 AIR (SC) 135; (iii) Bijoy Singh vs. State of Bihar, 2002(2) R.C.R. (Criminal) 544; (iv) Harpal Singh vs. State of Punjab and others, 2018 (1) Law Herald 118;

The other counsel appearing for the appellants reiterated the arguments made by Mr. Hooda and Mr. Navkiran Singh.

12. On the other hand, Ms. Palika Monga, learned Deputy Advocate General, appearing for the State of Haryana has stated that the delay was not unusual, inasmuch as, there had been an incident of shooting in the University and hundreds of students had gathered at the hostel due to which there was utter commotion and, therefore, it is natural that recording of statement and FIR was delayed. She further argued that delay in the present case in lodging the FIR is not fatal to the prosecution case. Ms. Monga has further relied upon the statements of two eye-witnesses to support the case of the State stating that the statements of the witnesses PW1 and PW2 were credible and trustworthy. The defence has not been able to elicit anything meaningful and beneficial in the cross- examination of the said witnesses. It has further been argued by Ms. Monga that Sheel Kumar (complainant) and the eye witnesses had identified the accused present in court, except Anil.

13. Ms. Monga, learned Deputy Advocate General, Haryana, has relied upon the following judgements: -

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(i) Palani vs. State of Tamil Nadu, 2019(1) R.C.R. (Criminal) 141;

(ii) Ravinder Kumar vs. State of Punjab, 2002(1) R.C.R. (Criminal) 227; (iii) Amar Singh vs. Balwinder Singh & Ors., 2003(1) R.C.R. (Criminal) 701; (iv) Tara Singh vs. State of Punjab, 1991(2) R.C.R. (Criminal) 622; (v) Anjan Dasgupta vs. The State of West Bengal & Ors., 2017(1) R.C.R. (Criminal) 52; and (vi) Kilakkatha Parambath Sasi & Ors. vs. State of Kerala, 2011(3) R.C.R. (Criminal) 183.

14. After hearing the learned counsel for the parties and going through the record, we are of the considered opinion that the present appeal must fail.

15. We would first deal with the arguments raised by learned counsel for the appellants regarding the delay in lodging the FIR. The delay in lodging the FIR, per se, cannot be a good ground to doubt the case of the prosecution. The Court has to see in a given case the possible cause of the delay and whether the delay is attributable to any effort to concoct a version. In the present case, no doubt, there is a delay in lodging the FIR, but we do not find any ground to doubt the version of the prosecution merely on the ground of delay in lodging the FIR. It is to be seen that the incident had occurred in the University campus and hundreds of students had gathered in the hostel, as per the evidence led. In a scenario of commotion and confusion, we do not find anything amiss in the delay in lodging the FIR in the given situation. Further, we are of the view that the prosecution has been able to prove its case beyond reasonable doubt on the strength of the testimonies of the eye-witnesses and other witnesses produced by the prosecution. Hence, we are not inclined to accept the argument of the appellants 12 of 18 ::: Downloaded on - 08-12-2019 08:39:05 ::: CRA-D-285-DB-2015 - 13 -

regarding delay in lodging the FIR as fatal to the case of the prosecution.

16. Their Lordships of the Apex Court in the case of Ravinder Kumar vs. State of Punjab, 2001(7) SCC 690 have held as under:-

"13. The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.

14. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the 13 of 18 ::: Downloaded on - 08-12-2019 08:39:05 ::: CRA-D-285-DB-2015 - 14 -

police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.

15. We are not providing an exhaustive catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point out that the stale demand made in the criminal courts to treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the causes for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the mere delay in lodging the FIR. (Vide Zahoor v. State of U.P. 1991 Supp (1) SCC 372 Tara Singh v. State of Punjab 1991 Supp (1) SCC 536; Jamma v. State of U.P. 1994(1) SCC 185) In Tara Singh (supra) the Court made the following observations:

"4. It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report."

17. The next argument raised by learned counsel for the appellants was regarding non-reliance of the prosecution on the CCTV footage produced by them for identifying the accused. We do 14 of 18 ::: Downloaded on - 08-12-2019 08:39:05 ::: CRA-D-285-DB-2015 - 15 -

not find that non-reliance upon the CCTV footage by the prosecution can be used in any manner by the defence to gain any advantage. There is enough evidence to prove beyond a shadow of doubt about the involvement of the appellants in the entire incident. The testimonies of the eye-witnesses PW2-Pardeep Kumar and PW3-Kuldeep Singh are trustworthy and inspire confidence. The defence has not been able to impeach the testimonies of these two eye-witnesses. The versions given by both these eye-witnesses are corroborative and find support from the medical evidence. The appellants have failed to cast any suspicion or doubt on the presence of the eye- witnesses at the time of occurrence. In fact, it was never the case set up by the appellants that the presence of the eye-witnesses at the time of occurrence was doubtful. We too are of the firm opinion that the testimonies of the eye-witnesses are credible and reliable and, hence, are not inclined to set aside the conviction on the ground that CCTV footage was not relied upon by the prosecution.

18. The next argument, which was raised by the appellants, was regarding non-examination of any independent witness, though the occurrence was in a public place. The failure to examine any independent witness by the prosecution would also be of no avail to the appellants, inasmuch as, there is enough evidence on record in the shape of the testimonies of the eye-witnesses as well as the testimony of the doctor, who appeared as PW4, and the FSL report with regard to matching of bullets found at the place of occurrence. Even the chain of links connecting the appellants to the commission of crime stands fully established and learned counsel for the appellants have not been able to pinpoint anything which would cast any doubt on the involvement of the appellants in the fatal incident. Moreover, it cannot be ignored that the 15 of 18 ::: Downloaded on - 08-12-2019 08:39:05 ::: CRA-D-285-DB-2015 - 16 -

incident occurred in a University campus and students may have been fearful of their lives and apprehending danger may have preferred to stay away. We do not find any substance in this argument also and, hence, reject the same.

19. The next argument raised on behalf of the appellants was that the complainant's version was hearsay. No doubt, the complainant learnt the names of the appellants from two eye- witnesses but the fact remains that he also identified the assailants in the Court. Secondly, had it been a case of false implication, what was stopping the complainant from stating that he knew the names of the assailants. We are, therefore, not inclined to accept this argument either.

20. Another argument raised by Mr. Navkiran Singh, learned counsel for appellant-Vijay was that Vijay did not participate in the commission of the act and that no weapon was recovered from him. However, both the eye-witnesses have stated that they saw Vijay at some distance proclaiming and exhorting. The further argument in this regard is that PW2-Pardeep Kumar and PW3-Kuldeep Singh have nowhere stated that Vijay was carrying any weapon or that he fired any gunshot at the deceased or in the air. It has been held by their Lordships of the Apex Court in the case of Busi Koteswara Rao and others vs. State of A.P., 2012(12) SCC 711 that:-

"6. Even, as early as in 1965, a larger Bench of this Court in Masalti & Ors. vs. The State of Uttar Pradesh, AIR 1965 SC 202 considered about how the prosecution case is to be believed. The principles laid down in para 16 of the decision are relevant which is as under:-

"16. Mr Sawhney also urged that the test applied by the High Court in convicting the appellants is mechanical. He argues 16 of 18 ::: Downloaded on - 08-12-2019 08:39:05 ::: CRA-D-285-DB-2015 - 17 -

that under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case."

7. It is clear that when a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, the normal test is that the conviction could be sustained only if it is supported by two or more witnesses who give a consistent account of the incident in question."

21. In the present case, the role of Vijay in forming an unlawful assembly in order to carry out the murder is beyond a shadow of doubt. The two eye-witnesses have proved his presence and 17 of 18 ::: Downloaded on - 08-12-2019 08:39:05 ::: CRA-D-285-DB-2015 - 18 -

involvement in the formation of unlawful assembly sharing a common object and eventually carrying it out.

22. The next argument raised was that there was contradiction between the first statement of complainant-Sheel Kumar and the testimony of Sheel Kumar recorded as PW1. We find that minor contradictions cannot be made a ground for rejecting an otherwise trustworthy and credible testimony. Even if one was to discard the testimony of PW1, then also the account of the two eye-witnesses is adequate to prove beyond reasonable doubt the involvement of the appellants in the murder of the deceased. Once the defence is unable to raise even a little finger at the unimpeachable testimonies of the eye-witnesses and the other evidence produced by the prosecution to prove the chain of links, we find no ground to interfere with the conviction and sentence awarded by the Trial Court.

23. In view of above, the present appeal is dismissed. The bail bonds of the appellant(s), if on bail, are cancelled and all the appellants are directed to be taken into custody forthwith to serve out the remaining period of their respective sentences.

24. Since the main case has been decided, pending criminal miscellaneous applications, if any, stand disposed of.

                   (AJAY TEWARI)                        (ALKA SARIN)
                        JUDGE                              JUDGE
29.11.2019
parkash
                 NOTE:

Whether speaking/non-speaking: Speaking Whether reportable: YES/NO 18 of 18 ::: Downloaded on - 08-12-2019 08:39:05 :::

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Punjab-Haryana High Court