BALBIR Vs VAZIR AND OTHER
Bench: RANJANA PRAKASH DESAI,MADAN B LOKUR
Case number: Crl.A. No.-001535-001538 / 2004
Diary number: 4936 / 2004
Advocates: PREM MALHOTRA Vs
VISHWAJIT SINGH
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOs.1535-1538 OF 2004
Balbir …Appellant
Versus
Vazir & Ors. …Respondents
WITH
CRIMINAL APPEAL NO.1539 OF 2004
State of Rajasthan …Appellant
Versus
Lichman & Anr …Respondents
WITH
CRIMINAL APPEAL NO.1540 OF 2004
State of Rajasthan …Appellant
Versus
Vazir & Ors. …Respondents
WITH
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CRIMINAL APPEAL NO. 1541 OF 2004
State of Rajasthan …Appellant
Versus
Hoshiyar Singh & Ors. …Respondents
J U D G M E N T
(SMT.) RANJANA PRAKASH DESAI, J.
1. These appeals arise out of a common judgment and
order dated 23/1/2004 passed by the Rajasthan High Court
in D.B. Murder Reference No. 1 of 2002, D.B. Criminal Appeal
No. 781 of 2002, D.B. Criminal Appeal No. 718 of 2002 and
D.B. Criminal Appeal No. 105 of 2003. Criminal Appeals No.
1535-1538 of 2004 are filed by PW-4 Balbir and Criminal
Appeal Nos. 1539, 1540 and 1541 of 2004 are filed by the
State of Rajasthan against the acquittal of the accused.
Since these appeals arise out of the same judgment they are
being disposed of by this common judgment.
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Gist of the prosecution case:
2. Deceased Krishna Gir (also referred to as ‘Krishna
Gir’) was the Head Priest of ‘Balakdera Ashram’ situated at
Hissar in Haryana. Krishna Gir was also having ultimate
supervision and control over other Ashrams associated with
this Ashram. Baba Lal Gir Ashram at village Rampura in
Rajasthan where the incident occurred was also one of such
Ashrams which was under the supervision and control of
‘Balakdera Ashram’. Amongst others, one Pokhar-Khedi
Ashram situated at village Pokhar-Khedi in Jind District of
Haryana and its Priest were also under the control and
supervision of ‘Balakdera Ashram’. Pokhar-Khedi Ashram
had about 100 acres of land. In the past, it was managed by
its Priest Mangeram. Priest Mangeram transferred that land
in the names of his nephew Joragir and other members of his
family. He also executed a Will in respect of the said land.
When this fact came to the knowledge of Krishna Gir through
the villagers of Pokhar-Khedi, he filed a civil suit for
cancellation of the transfer of said land made by Priest
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Mangeram. The civil suit was decreed in favour of Krishna
Gir. The decree was maintained by the Punjab and Haryana
High Court as well as by the Supreme Court. During the
pendency of the said litigation, Priest Mangeram died.
Joragir, the nephew of Priest Mangeram, claimed to be his
successor but he was not allowed to take charge.
Subsequently, Krishna Gir was appointed as Priest of Pokhar-
Khedi Ashram. Krishna Gir recovered the possession of the
land of Pokhar-Khedi Ashram in execution of the decree.
Because of this dispute there was enmity between Krishna
Gir and the accused. An attempt was made on the life of
Krishna Gir in Jind Court premises. The accused party tried
to regain possession of the land. In that dispute one child
died. Thereafter, Krishna Gir was assaulted with knife at
Balakdera. Cases in relation to all these incidents are stated
to be pending in different courts in Haryana State. It is the
prosecution case that on 12.7.2000 a conspiracy was
hatched in the house of accused Hoshiyar Singh at Pokhar
Khedi whereby Hoshiyar Singh, Rajmal, Jage Gir, Joragir,
Vazir, Sohan Gir and Lichman conspired to kill Krishna Gir. In
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pursuance of the said conspiracy Krishna Gir and his
disciple Sewanand Gir were shot dead on 23.7.2000 at 11.05
A.M at Baba Lalgiri Ashram in village Rampura.
3. FIR relating to the incident:
On 23/07/2000 at 11.05 a.m. PW-23 Lakhma Ram
Rathore, Station House Officer of RPS, Hamirvas, Rajasthan
received an intimation from Police Station In-charge,
Rajgarh, District Churu, Rajasthan that there was firing at
the Ashram of Baba Lal Giri in Rampura Village. On the basis
of this information, PW-23 Lakhma Ram Rathore along with
one ASI and police force reached the site of occurrence
where PW-1 Puranmal submitted a written report. According
to this report, Baba Lalgiri Ashram is situated in village
Rampura, Tehsil Rajgarh, District Churu, Rajasthan and there
is a ‘Samadhi’ of Baba Lalgiri. The Ashram was under the
supervision of Priest Mangal Gir. Every year, at the Samadhi,
on the occasion of death anniversary of Baba Lalgiri, a
‘Yagya’ was being performed. Following the said tradition,
on 17/7/2000, a ‘Yagya’ was arranged at the Baba Lalgiri
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Ashram. The ‘Yagya’ was scheduled to culminate on
23/7/2000. On 23/7/2000, a community lunch was in
progress. Number of Saints and community people had
gathered to take part in this ‘Yagya’. Priest Krishna Gir was
supervising the ‘Yagya’. Priest Krishna Gir was sitting alone
on a wooden bench in the Satsang Hall of Baba Lalgiri
Ashram. Disciple Sewanand was sitting on a mat at a
distance of 2 feet from the wooden bench. Some other
villagers including PW-4 Balbir Singh and PW-5 Pratap Singh
were sitting at a distance of 10 feet from the wooden bench.
The Priest Mangal Gir was sitting near the gate of the
Ashram. PW-1 Puranmal (informant) was sitting in the store
room of the Ashram. PW-10 Ummed Singh of Beri village
was also sitting in the Ashram. People were moving around
for paying their respect to Krishna Gir. All of a sudden,
between 10.30 a.m to 10.45 a.m, two persons armed with
fire arms entered the Satsang Hall from the rear gate of the
Ashram. One of them was wearing pant and bush shirt and
another was in kurta pyjama. The man wearing pant and
bush shirt fired at Krishna Gir. Resultantly, Krishna Gir
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started bleeding profusely. Sewanand tried to grab the
person who fired at Krishna Gir. Then the man wearing
kurta payjama fired at Sewanand with intention to kill him.
Consequently, Sewanand also became unconscious and fell
down. Seeing this, PW-1 Puranmal, PW-10 Ummed Singh and
Priest Mangal Gir raised cries and ran after the assailants.
They noticed one more person standing at the rear gate
armed with a double-barrel gun. This was also witnessed by
PW-12 Jagdish Prasad, Prajapat of village Rampura and Baba
Samundra Gir of Bhiwani. All these three persons ran
towards the car which was parked on the road. One person
was standing near the parked car. The man armed with
double-barrel gun fired in the air after reaching near the car.
Those four persons sat in the car and escaped towards
railway station. This was witnessed by PW-9 Veer Singh and
Krishan Singh. Manish Singh noted the number of car
parked on the road as HR-26-G-8928 which was of Ceilo
make and of Grey colour. Krishna Gir and Sewanand were
taken to ‘Bedwal Nursing Home’ at Pilani in injured state by
two different vehicles. Sewanand (‘deceased Sewanand’)
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died on the way. PW-2 Dr. Tarun Bedwal of ‘Bedwal Nursing
Home’ after giving first aid to Krishna Gir advised to take
Krishna Gir either to Hissar or Delhi for further treatment.
Krishna Gir was taken to CMC Hospital, Hissar where he
succumbed to the injuries.
4. At 12.30 p.m. report was forwarded to Police Station,
Hameervas by PW-23 Lakhma Ram Rathore through
Constable PW-18 Kunad Ram, which was recorded by PW-19
Sugan Singh at 2.00 p.m. as Case No.130/2000 under
Section 302, 307, 120-B read with Section 34 of IPC and
Section 3 read with Section 25 of the Arms Act.
5. On completion of investigation, the case was
committed to the Sessions Court, Rajgarh for trial and
charges were framed against 11 accused persons namely:
Vazir (A1), Joragir (A2), Hoshiyar Singh (A3), Rajmal (A4),
Jage Gir (A5), Balraj (A6), Lichman (A7), Sohan Gir (A8),
Kulveer (A9), Ramniwas (A10) and Lila @ Jogendra (A11). A1
and A2 were charged for the offences punishable under
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Sections 148 and 302, 308 of the IPC as well as under
Section 3 read with Section 25 of the Arms Act for
committing the murder of deceased Krishna Gir and
deceased Sewanand. A3, A4, A5, A6, A8 and A9 were
charged for the offences punishable under Sections 148 and
120B of the IPC. In addition to charge under Sections 148
and 120B, A4 was also charged under Section 3 read with
Section 30 of the Arms Act and A9 was charged under
Section 302 read with Section 149 of the IPC. A7, A10 and
A11 were charged under Sections 148 and 302 read with
Section 149 of the IPC. The prosecution, in support of its
case, examined as many as 31 witnesses (PW-1 to PW-31).
No defence evidence was adduced. In their statements
recorded under Section 313 of the Code of Criminal
Procedure, (for short, “the Cr.P.C.”), the appellants stated
that they were innocent.
6. The trial court convicted A1 and A2 under Sections
120B, 148 and 302 of the IPC for committing the murder of
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Krishna Gir and Sewanand. They were sentenced to death
for offence punishable under Section 302 of the IPC. They
were further sentenced to two years rigorous imprisonment
for offence punishable under Section 148 of the IPC.
However, A1 and A2 were acquitted of charges under
Section 308 of the IPC as well as under Section 3 read with
Section 25 of the Arms Act. A6 and A7 were convicted under
Sections 120B, 148 and 302 read with Section 149 of the
IPC for committing murder of Krishna Gir and Sewanand.
They were sentenced to undergo imprisonment for life under
Section 302 read with Section 149 of the IPC and to pay Rs.
5,000/- each as fine, in default of payment of fine, to
undergo further rigorous imprisonment for 3 months. They
were also sentenced to two years rigorous imprisonment for
offence punishable under Section 148 of the IPC. Rest of
the accused were acquitted of all charges.
7. A D.B. Murder Reference No. 1/2002 was made by the
trial court to the High Court under Section 366 of the Cr.P.C.
A1 and A2 filed D.B. Criminal Appeal No. 781/2002 and A6
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and A7 filed Criminal Appeal No. 718/2002 before the High
Court against their conviction and sentence. The High Court
by the impugned order allowed the Criminal Appeals of A1,
A2, A6 and A7 and set aside their conviction and sentence
awarded by the trial court. The High Court confirmed the
acquittal of rest of the accused recorded by the trial court.
Hence the instant appeals.
8. We have heard Mr. Rishi Malhotra learned counsel
appearing for appellant Balbir, Mr. Ansar Ahmad Chaudhary
and Ms. Ruchi Kohli appearing for State of Rajasthan and Mr.
Makrand D. Adkar with Mr. Vishwajit Singh appearing for the
respondents. We have also perused the written submissions
filed by them.
9. Gist of the submissions on behalf of appellant-
Balbir.
i) The prosecution case basically hinges upon the
evidence of PW-3 Prithvi Gir, PW-4 Balbir Singh and PW-
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5 Pratap Singh. The High Court wrongly overlooked
their evidence.
ii) PW-2 Dr. Bedwal had testified that on 23/07/2000
deceased Krishna Gir was brought by PW-3 Prithvi Gir at
his nursing home. At that time deceased Krishna Gir
was conscious and was in a position to speak.
iii) PW-3 Prithvi Gir stated that deceased Krishna Gir was
taken to the hospital of PW-2 Dr. Bedwal and Krishna
Gir made dying declaration in the car. PW-3 Prithvi Gir
also stated that deceased Krishna Gir told him that he
was shot at by accused Vazir and his disciple Sewanand
was shot at by accused-Joragir.
iv) Eyewitnesses PW-4 Balbir Singh and PW-5 Pratap Singh
have corroborated PW-3 Prithvi Gir.
v) PW-3 Prithvi Gir gave detailed narration of the motive
as well as the earlier two attempts made by the
accused to kill deceased Krishna Gir. He stated that the
accused had grudge against deceased Krishna Gir as he
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had taken possession of the Dera Land situated at
Village Pokar Kheri from their uncle Mange Giri. He also
stated that accused Wazir was a habitual criminal and
he had made earlier attempts to kill deceased Krishna
Gir. PW-4 Balbir Singh, PW-5 Pratap Singh have
corroborated PW-3 Prithvi Gir on the aspect of motive.
vi) This is a case of strong motive. The accused had lost
possession of the Dera land which was taken by
deceased Krishna Gir. The complainant cannot be said
to have any ill-design as they were already in
possession of the land.
vii) The first attempt on the life of deceased Krishna Gir
was made in the year 1996 when the deceased had
gone to court to pursue the case against the accused.
The second attempt was made in Hissar court. This
attempt was also unsuccessful.
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viii) The conduct of accused Vazir speaks for itself as he
escaped from jail and killed deceased Krishna Gir in
broad daylight. Thus, he has no fear of law.
ix) The High Court has not come to the conclusion that
evidence of PW-4 Balbir Singh and PW-5 Pratap Singh
was, in any way, infirm as regards the actual
occurrence. The High Court has unnecessarily given
much importance to technical flaws in the investigation.
The High Court’s judgment is perverse. It has
acquitted the accused thereby completely effacing the
cogent eye-witness account of PW-4 Balbir Singh and
PW-5 Pratap Singh, the consistent evidence of PW-3
Prithvi Giri and other relevant evidence on record.
x) As held in Swami Shradanand(2) alias Murali
Manohar Mishra v. State of Karnataka 1 at the
most sentence could have been commuted to life
imprisonment. It could have been altered to 20 years
or 30 years imprisonment without remission. The
1 (2008) 13 SCC 767
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accused certainly do not deserve any leniency. Their
acquittal is totally erroneous and unjust.
10. Written submissions on behalf of respondents-
accused.
i) Deceased Krishna Gir and deceased Sewanand were
shot at on 23/07/2000 at 10.30 a.m. Krishna Gir died at
3.10 p.m. in hospital at Hissar and Sewanand died while
being taken to hospital. PW-1 Puranmal who was
present at the site filed written complaint at 12.30 p.m.
and FIR No. 30 of 2000 came to be registered at 2.00
p.m. Written complaint or the FIR does not disclose the
names of the assailants, though, they were recorded
promptly after the incident.
ii) There are two prosecution stories, one is introduced by
PW-1 Puranmal, who has filed the FIR and the other is
introduced by PW-3 Prithvi Gir, 3 days after the
incident. These two versions differ.
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iii) PW-1 Puranmal in complaint/FIR specifically says that
the assailants could be identified if seen. However, no
identification parade was held.
iv) Presence of PW-3 Prithvi Gir is not mentioned in any
contemporaneous documents. The prosecution story
introduced in the complaint/FIR is not supported by the
evidence of witnesses.
v) Three days after the incident PW-3 Prithvi Gir came out
with the story of oral dying declaration. A bare look at
the contents of the dying declaration show that it is a
concocted piece of evidence.
vi) The High Court has correctly analysed the evidence of
PW-3 Prithvi Gir, PW-4 Balbir Singh and PW-5 Pratap
Singh and rightly come to the conclusion that the entire
evidence is concocted and suffers from improvements
and contradictions. The High Court has rightly stated
that the story is concocted by the successor of
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Balakdera i.e. PW-3 Prithvi Gir to implicate as many
rivals as possible due to existing bitter rivalry.
vii) The presence of PW-3 Prithvi Gir, PW-4 Balbir Singh and
PW-5 Pratap Singh at the scene of offence is not
proved. After perusing the evidence on record and
having regard to the other attendant circumstances,
the High Court has rightly observed that the said
witnesses were not present at all. They directly
reached Hissar at about 4.30 p.m. i.e. much after the
death of deceased-Krishna Gir.
viii) The High Court has rightly acquitted the accused after
disbelieving the evidence of PW-3 Prithvi Gir and PW-4
Balbir Singh and PW-5 Pratap Singh. The High Court’s
judgment does not merit any interference.
11. Gist of submissions on behalf of State of
Rajasthan:
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i) It is an admitted position that there was enmity
between the deceased and the accused on account of
land dispute which fact has been corroborated by the
evidence of PW-3 Prithvi Gir, PW-4 Balbir Singh, PW-5
Pratap Singh, PW-6 Maha Singh. PW-13 SI
Chandrabhan, PW-17 Kartar Singh and PW-26 Randhir
Singh have confirmed FIRs in cases relating to previous
attempts made on the life of deceased Krishna Gir. The
High Court has ignored and not dealt with the
statements of above mentioned witnesses in relation to
motive.
ii) Both PW-4 Balbir Singh and PW-5 Pratap Singh have
given vivid description of how Krishna Gir was killed.
They have stated that accused Vazir shot at Krishna
Gir and that accused Joragir shot at Sewanand.
iii) There is no discussion in the impugned judgment as
regards the details given by both the prosecution
witnesses of the incident of killing of Krishna Gir and
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Sewanand by the accused with the use of firearms. The
High Court has wrongly overlooked the evidence of PW-
4 Balbir Singh and PW-5 Pratap Singh.
iv) There is nothing unnatural about the dying declaration
made by deceased Krishna Gir. Deceased Krishna Gir
was taken to hospital at Pilani by PW-3 Prithvi Gir,
which is corroborated by the statement of PW-2 Dr.
Bedwal. Further, deceased Krishna Gir was with PW-3
Prithvi Gir from 11 a.m. to approximately 3.30 – 3.45
p.m., therefore, the possibility of his making dying
declaration during this period cannot be ruled out as he
was alive at Pilani. This is corroborated by PW-2 Dr.
Bedwal who referred deceased Krishna Gir to Hissar
hospital. The High Court fell into a grave error in not
believing the dying declaration.
v) The eye-witnesses were disciples of deceased Krishna
Gir and have a reasonable and justified explanation as
to why they gave statements on 26/7/2000. The
evidence of these witnesses is corroborated by other
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evidence on record. There exists no discrepancy in the
same and cannot be discarded merely because they
were recorded three days after the incident. In the
circumstances of the case delay in recording
statements of the witnesses does not discredit the
prosecution case.
vi) The accused were identified by PW-4 Balbir Singh and
PW-5 Pratap Singh in court. Identification of the
accused in court is not bad. Failure to hold
Identification Parade would not make inadmissible the
evidence of identification in court. The High Court gave
undue importance to absence of identification parade.
In this connection reliance can be placed on
Malkhansingh and Ors. v. State of M.P. 2 .
vii) The High Court’s judgment is perverse. The High Court
has ignored cogent evidence of eye-witnesses and
given undue importance to minor discrepancies. The
High Court grossly erred in setting aside the well
2 (2003) 5 SCC 746
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reasoned judgment of the trial court. This has resulted
in grave miscarriage of justice. It is, therefore,
necessary to set aside the impugned judgment.
12. We are dealing with an appeal against acquittal. The
acquittal is not recorded by the trial court but by the High
Court. We shall therefore see whether there were sufficient
reasons for the High Court to set aside the conviction. We
must however bear in mind that if the view taken by the
High Court is a reasonably possible view it should not be
disturbed because the acquittal of the accused by the High
Court has strengthened the presumption of their innocence.
We must also mention that according to the prosecution this
is a case of strong motive. Land disputes between the two
sides and earlier attacks made on deceased Krishna Gir have
been deposed to by the witnesses. The High Court has
observed that no documentary evidence is produced by the
prosecution in support of this case. However, we cannot
dismiss the prosecution case of enmity between the two
sides lightly because reference to it is made by several
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witnesses. But that by itself does not help the prosecution.
Just as there is a possibility of murders having been
committed because of motive due to enmity, there is also a
possibility of false implication of innocent people to settle
past scores. That is why it is said that motive is a double
edged weapon. We shall keep this in mind and approach the
case.
13. PW-1 Puranmal a resident of Rampura lodged the FIR
(Ex.P1) at 12.30 P.M on 23/7/2000. He involved four persons
as assailants but did not name them. He turned hostile. We
shall advert to the FIR a little later.
14. The prosecution relied on two eye-witnesses. They are
PW-4 Balbir Singh and PW-5 Pratap Singh. Before turning to
their evidence it is necessary to refer to evidence of PW-3
Prithvi Gir, a disciple of deceased Krishna Gir who deposed
about the presence of the eye-witnesses at the scene of
offence and also about the dying declaration allegedly made
by deceased Krishna Gir to him. PW-3 Prithvi Gir is not an
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eye witness to the incident. He stated that deceased
Krishna Gir had asked him to come to the Dera of Lalgiri
Maharaj situate at Rampura on 23/7/2000, as the Yagya
which deceased Krishna Gir was supervising was to conclude
on that day. Accordingly, PW-3 Prithvi Gir went to Rampura
on 22/7/2000. According to PW-3 Prithvi Gir at 10.30 in the
morning of 23/7/2000 deceased Krishna Gir was sitting on a
bench in the small Satsang room inside the Dera. Deceased
Sewanand was sitting at a distance of 2’ from deceased
Krishna Gir on a mat. PW-4 Balbir Singh, PW-5 Pratap Singh,
Hari Singh, Rajvir Singh were sitting at a distance of 10’ from
deceased Krishna Gir. Deceased Krishna Gir’s driver Leela
was also sitting there. PW-3 Prithvi Gir further stated that at
10.30 in the morning there was a sound of gunfire and
stampede. He and Ramgiriji ran towards deceased Krishna
Gir. They saw him lying on the bench with blood on his
body. Deceased Sewanand was lying on the floor with bullet
injuries. PW-3 Prithvi Gir further stated that Sewanand was
put in one vehicle and deceased Kirshna Gir was put in a
Sumo vehicle for being taken to hospital at Pilani. Along with
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PW-3 Prithvi Gir, Ramgiriji and one person from Rampura
were there in the Sumo vehicle. PW-3 Prithvi Gir further
stated that deceased Krishna Gir was conscious and told him
that he and deceased Sewanand were shot at by Vazir son of
Hoshiar Singh, Caste Gosain and Joragir son of Dunigir, caste
Gosain, both residents of Pokarkhedi; both of whom he
recognized at the spot. According to PW-3 Prithvi Gir
deceased Krishna Gir further told him that in this conspiracy
to kill him Dalelgiri disciple Ram Gir resident of Maham,
Hoshiar Singh, Rajmal, Jageram resident of Pokarkhedi and
Sohangir disciple of Gulab Gir, caste Gosain resident of
Sukhura, District Jind and Baljit Singh, caste Jat Gosain,
village Pokarkhedi and Devnand village Mahiwal, caste
Gusain, presently employed with Delhi Police are also
involved and Lichman son of Jagannath, caste Gusain, Village
Pinjpura, District Kaithal, maternal uncle of Vazir conspired
to shoot him. According to PW-3 Prithvi Gir the doctor at the
hospital at Pilani asked him to take deceased Krishna Gir to a
bigger hospital. He was taken to CMC hospital at Hissar,
where he died. Deceased Sewanand died on way to Pilani.
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15. The prosecution heavily relied on this dying declaration
allegedly made by deceased Krishna Gir to PW-3 Prithvi Gir.
It is submitted that the fact that PW-3 Prithvi Gir took
deceased Krishna Gir to hospital at Pilani is corroborated by
PW-2 Dr. Bedwal. Presence of PW-3 Prithvi Gir has also been
mentioned in the inquest proceedings conducted by PW-31
Prem Singh Huda after the death of deceased Krishna Gir. It
is submitted that PW-2 Dr. Bedwal stated that deceased
Krishna Gir was in a position to talk. Assuming, however,
that deceased Krishna Gir could talk and make a dying
declaration, the question is how far the narration of the facts
contained in the alleged dying declaration is true and
whether it inspires any confidence. Deceased Krishna Gir
was seriously injured. He succumbed to those injuries in the
Hissar hospital. He must have been in great pain. It is
inconceivable that deceased Krishna Gir would make such a
dying declaration giving minute particulars like fathers
name, caste and village of each alleged conspirator when
he was on death bed with excruciating pain. It would have
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been natural for him to just give the names. But he is stated
to have given details of each of the ten alleged conspirators
and that makes this dying declaration suspect. A bare
reading of this dying declaration makes it evident that it is a
doctored document. Such details could not have been given
by deceased Krishna Gir at that stage. It is possible that
they have been supplied by PW-3 Prithvi Gir. The High Court
in our opinion has rightly observed that such a dying
declaration does not appear to be natural, but portrays an
attempt by the successor of Balakdera i.e. PW-3 Prithvi Gir to
plant names of all those with whom Balakdera had axe to
grind through the statement attributed to deceased Krishna
Gir. We find it difficult to place reliance on this dying
declaration.
16. It is well settled that an oral dying declaration can form
basis of conviction if the deponent is in a fit condition to
make the declaration and if it is found to be truthful. The
courts as a matter of prudence look for corroboration to oral
dying declaration. As we have already noted, the dying
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declaration of deceased Krishna Gir does not inspire
confidence. One can perceive an effort to involve number of
persons by giving their minute particulars. It does not
appear to be a natural voluntary statement of a dying man.
The prosecution could have infused some credibility in it if it
had examined the driver of the car in which deceased
Krishna Gir was taken to the hospital and Ramgiriji who was
also in the car. It is not understood why such vital evidence
is kept back. Thus, there is no corroboration to lend
assurance to the dying declaration of deceased Krishna Gir.
In this connection, we may usefully refer to Heikrujam
Chaoba Singh vs. State of Manipur 3 where the deceased
was stated to have made a dying declaration to his brother
in the ambulance. There were four other persons in the
ambulance. None of them was examined. This Court
refused to place reliance on the dying declaration as the
disinterested persons sitting in the van were not examined.
In the instant case, admittedly PW-3 Prithvi Gir was very
close to deceased Krishna Gir. He was the successor of
3 (1999) 8 SCC 458
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deceased Krishna Gir. There was enmity between the
accused and deceased Krishna Gir’s followers. The
prosecution should have, therefore, examined the driver or
Ramgiriji who was in the car. This is an additional reason
why alleged dying declaration of deceased Krishna Gir
cannot be relied upon. Besides PW-3 Prithvi Gir’s statement
was recorded three days after the incident casting further
doubt on the dying declaration. We shall advert to that
aspect now.
17. The dying declaration is allegedly made by deceased
Krishna Gir and names of PW-4 Balbir Singh, PW-5 Pratap
Singh, Hawa Singh and Rajvir Singh were disclosed by PW-3
Prithvi Gir first time on 26/7/2000 at Balakdera when his
statement was recorded by the police. PW-3 Prithvi Gir’s
silence for three days creates a grave doubt about the
truthfulness of prosecution story. He was the principal
disciple and successor of deceased Krishna Gir. If deceased
Krishna Gir had made a dying declaration and communicated
the names of the assailants to him, his devotion to his Guru
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should have prompted him to immediately disclose the
names of the assailants to the police and others. His silence
gives scope to the possibility of his concocting a story
involving number of persons from the opposite group as the
perpetrators of crime. As already stated by us in this
statement recorded three days after the incident PW-3
Prithvi Gir came out with names of four persons as eye-
witnesses. If PW-3 Prithvi Gir had so much information, he
should not have waited for three days to disclose it. We
shall soon go to the evidence of the eye-witnesses named by
PW-3 Prithvi Gir. But the fact that their names surfaced
three days after the incident creates a doubt as to whether
they were really present at the scene of offence or whether
this was a conscious decision taken within three days after
the incident to create evidence by citing four persons as eye-
witnesses.
18. PW-4 Balbir Singh stated that on 23/7/2000 at about
8.00 a.m in the morning, deceased Krishna Gir was sitting on
a ‘Divan’ in Satsang Bhawan. Sewanand was sitting on a
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mat and some other saints were also sitting there. He
stated that he and other saints were sitting under a Zal tree
outside the Satsang Bhawan where deceased Krishna Gir
was sitting. But he also added that they were sitting 10 to
12 feet away from deceased Krishna Gir. It is pertinent to
note that his statement that he was sitting 10 to 12 feet
away from deceased Krishna Gir does not find place in his
statement recorded under Section 161 of the Cr.P.C. and,
therefore, it is clearly an afterthought. He and the other
saints were, therefore, sitting under the Zal tree situated
outside the Satsang Bhawan. Before we proceed further, it is
necessary to note that the High Court has observed that
according to the site plan, the situation of two Zal trees
standing in the Ashram is such that from that place it is not
possible to see what is happening inside the Satsangh
Bhawan. PW-23 Lakmaram Rathore also stated that
according to the site plan, it is not possible to see what is
happening inside the Satsangh Bhawan from the Zal tree
standing outside the Satsang Bhawan. Counsel for the State
tried to argue that what is happening inside the Satsang
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Bhawan is visible from the Zal tree. We are not inclined to
disturb this finding of fact recorded by the High Court which
we are sure has been recorded after carefully perusing the
evidence on record and scrutinizing the site plan. If the
witnesses including PW-4 Balbir Singh were sitting under a
Zal tree from where what was happening inside the Satsang
Bhawan was not visible, their claim that they saw the
incident become suspect. Even otherwise, the tenor of their
evidence and their conduct make their evidence suspect.
PW-4 Balbir Singh stated that at around 10.30 a.m two
persons came through the crowd near deceased Krishna Gir.
The man in front was wearing pant and shirt and he fired as
soon as he reached near the door of the Satsangh Bhawan.
He fired three to four times. Sewanand grabbed the person
who had fired at deceased Krishna Gir. The man, who was
behind the man in pant and shirt and who was wearing kurta
pyjama fired at Sewanand and Sewanand fell down. The
assailants ran towards the gate. They went out firing at a
wall. He further stated that he recognized them when they
turned around. According to him, the man who fired at
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deceased Krishna Gir was Vazir s/o Hoshiar Singh, and the
man who fired at Sewanand was Jora Giri s/o Duni Gosain.
He stated that he along with Pratap Singh, Hawa Singh and
Rajveer followed the assailants after the assailants had gone
out of the gate. He stated that at the gate, Balraj s/o Krishan
Chand was firing in the air with his double-barrel gun. At
some distance, Lachman s/o Jagannath was standing. At
some distance, a car was parked. Two persons were
standing near the car, whom he could not identify. Thus,
according to PW-4 Balbir Singh, there were in all six persons
whereas as per FIR Ex. P/1, only four persons were involved
in the incident. It is pertinent to note that PW-4 Balbir Singh
stated that all of them reached Hissar at about 4.30 to 5.00
p.m. By that time, deceased Krishna Gir had died and after
they reached the hospital, Hissar Police came there. But
PW-4 Balbir Singh did not tell anything to the police. He
further stated that he had met Mangal Gir immediately after
the incident and he had told Mangal Gir about the entire
incident. If Mangal Gir was communicated the names of
the assailants Mangal Gir should have disclosed them to the
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police. Mangal Gir’s statement was recorded only on
30/8/2000, in which, Mangal Gir did not disclose the names
of assailants. Therefore, PW-4 Balbir Singh’s claim that he
disclosed the names to Mangal Gir is suspect. Moreover,
Mangal Gir was not examined by the prosecution. He further
stated that when he went inside the Satsangh Bhawan
deceased Krishna Gir was talking. He had heard deceased
Krishna Gir. If that was so he should have reported the
incident to the police. He did not do so. His statement came
to be recorded after three days on 26/7/2000 after PW-3
Prithvi Gir disclosed the dying declaration to the police and
names of the eye-witnesses. The High Court has referred to
several inconsistencies in the evidence of PW-4 Balbir Singh.
In our opinion, the High Court has rightly not placed reliance
on his statement. Evidence of PW-5 Pratap Singh also
suffers from the same infirmities. His statement was also
recorded three days after the incident. No reliance can be
placed on his evidence. The other two witnesses Rajveer
Singh and Hawa Singh named by PW-3 Prithvi Gir have not
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been examined by the prosecution. Thus, the evidence of
so-called eye-witnesses does not inspire confidence.
19. We have already noted that PW-1 Puranmal who
claimed to be at the scene of offence lodged FIR (Ex.P1). He
turned hostile. It is, however, pertinent to note that in the
FIR, PW-1 Puranmal involved four persons. He did not name
them but he stated that he could identify them. According
to the FIR, deceased Krishna Gir and deceased Sewanand
were sent in a Ceilo Car to Pilani. This version differs from
the version of PW-3 Prithvi Gir because PW-3 Prithvi Gir
states that they were taken in two different cars. The FIR
further states that on the way Sewanand died and deceased
Krishna Gir was taken to hospital at Hissar. Thus, when the
FIR was written at 12.30 P.M on 23/7/2000, information
about Sewanand’s death and departure of deceased Krishna
Gir to Hissar was conveyed at Rampura village. No names of
persons who accompanied the deceased to hospital were
stated in the FIR. Names of Ummed Singh, Jagdish Prakash,
Baba Samundra Gir, Veer Singh, Krishna Singh and Manish
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Singh were mentioned as persons who had seen the
incident. Out of them Veer Singh was examined as PW-9,
Ummed Singh was examined as PW-10 and Jagdish Prakash
was examined as PW-12. Rest of the persons were not
examined. The persons named in the FIR did not know the
assailants. They stated that they could identify the
assailants if they are brought before them. However, no
identification parade was held. We shall advert to the
absence of identification parade a little later. PW-9 Veer
Singh, PW-1 Ummed Singh and PW-12 Jagdish Prakash
turned hostile and hence their evidence is of no use to the
prosecution.
20. The High Court has rightly noted that when the FIR was
lodged by PW-1 Puranmal at about 12.30 P.M, the fact that
deceased Sewanand had died on the way to Pilani and
deceased Krishna Gir was taken to Hissar was known at the
Ashram at Rampura village. By the time, alleged dying
declaration was also made by deceased Krishna Gir.
Therefore, the names of the assailants also should have
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reached Rampura village along with information that
deceased Krishna Gir was being taken to Hissar. PW-3
Prithvi Gir should have communicated the names of the
assailants. However, names of the assailants were not
disclosed by anyone to the police. PW-4 Balbir Singh stated
that Sewanand was taken to Pilani by Raghavanand. When
he along with others reached Pilani, Raghavanand told him
that Krishna Gir has been taken to Hissar. The prosecution
should have examined Raghavanand who could have said
whether any information about assailants was
communicated to him. The prosecution failed to examine
Raghavanand. All this casts a shadow of doubt on PW-3
Prithvi Gir’s evidence that deceased Krishna Gir made a
dying declaration to him in which he disclosed the names of
the assailants. It may also be mentioned that PW-12 Jagdish
Prakash who turned hostile made a statement that Mangal
Gir who was present disclosed the names of the assailants to
him, but he did not remember the names. Pertinently
Mangal Gir’s name is mentioned in the FIR hence he was
present at the scene of offence. However, Mangal Gir’s
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statement was recorded by the police as late as on
30/8/2000 and he was not examined by the prosecution. It
bears repetition to state that in his statement recorded on
30/8/2000, Mangal Gir did not disclose names of the
assailants.
21. PW-3 Prithvi Gir stated that he disclosed the names of
the assailants to PW-31 Prem Singh Huda at Hissar where
PW-31 conducted the inquest proceedings. However, the
names of the assailants find no mention in inquest report. In
fact, PW-31 Prem Singh Huda stated that he had recorded
the statement of PW-3 Prithvi Gir, but PW-3 Prithvi Gir had
not disclosed to him the dying declaration or the names of
the assailants. PW-29 Laxmi Narayan, the Investigating
Officer stated that he went to Hissar on 23/7/2000 and met
PW-31 Prem Singh Huda. He got a lot of information about
the incident from PW-31 Prem Singh Huda except the names
of the assailants. According to PW-29 Lakshmi Narayan, he
went to Balakdera on 25/7/2000, but nobody disclosed the
names of the assailants to him. The names of the alleged
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assailants surfaced three days after the incident when the
statements of PW-3 Prithvi Gir, PW-4 Balbir Singh and PW-5
Pratap Singh were recorded. No acceptable explanation is
given for delay in recording the statements. The reluctance
of the prosecution witnesses to come out with the truth and
name the assailants, the delay in recording the statements
of eye-witnesses and statement of PW-3 Prithvi Gir, the
unnatural dying declaration giving minute diverse particulars
about the assailants reflect on the credibility of the
prosecution case.
22. Another significant aspect of this case is absence of
identification parade. Persons who were named in the FIR
and others, who had witnessed the incident at different
stages did not know all the assailants but they claimed that
they could identify the assailants. But the prosecution failed
to hold test identification parade. It is argued that
identification made in court is sufficient. Reliance is placed
on Malkhansingh where this Court has held that
substantive evidence is the evidence of identification in
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court. The test identification parade provides corroboration
to the identification of the witness in court if required and
what weight must be attached to the evidence of
identification in court, is a matter for the court of fact to
examine. There can be no dispute about this proposition.
But in Malkhansingh this Court was dealing with a case of
gang rape. This Court noted that courts below had
concurrently found the evidence of prosecutrix to be
implicitly reliable. This Court noted that the appellants
raped the prosecutrix one after another. She was
threatened and intimidated. All this must have taken time.
This Court noted that it was not a case where the identifying
witness had only a fleeting glimpse of the appellants. The
prosecutrix had a reason to remember the faces of the
appellants as they had committed a heinous offence and put
her to shame. She had abundant opportunity to note the
appellants features and due to the traumatic experience the
faces of the appellants must have been imprinted in her
memory and there was no chance of her making a mistake
about their identity. The observations of this Court will have
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to be read against the backdrop of these facts. Facts of this
case are different. The incident does not seem to have
lasted for a long time. The eye-witnesses were sitting
outside the Satsang hall. It cannot be said that they had
sufficient opportunity to see the faces of the accused who
were on the run. In such a case failure to hold identification
parade is a serious drawback in the prosecution case.
23. Having applied our mind to the evidence on record, we
are of the opinion that the prosecution has failed to prove its
case beyond reasonable doubt. We are mindful of the fact
that this case involves two murders and use of firearms.
Crime is grave. But the High Court has scrutinized the
evidence correctly in light of settled legal principles. The
evidence on record creates some suspicion, but does not
prove the offence to the hilt. The accused are, therefore,
entitled to benefit of doubt. Besides, as we have already
noted the instant appeals challenge the order of acquittal.
We do not find the High Court’s judgment to be perverse.
The High Court, in our opinion, was justified in interfering
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with the conviction of the accused. The view taken by the
High Court is legally unassailable and a factually possible
view. We, therefore, affirm it.
24. In the result, the appeals are dismissed.
…………………………………..J. (RANJANA PRAKASH DESAI)
……………………………………J. (MADAN B. LOKUR)
NEW DELHI; JULY 01, 2014.
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