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REPORTABLE  IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  CRIMINAL APPEAL NO.1580 OF 2010

RANDHIR @ RANDHIR PAL & ORS. .....APPELLANTS  VERSUS

STATE OF HARYANA ....RESPONDENT

J U D G M E N T  J. S. KHEHAR, J.

1. The instant criminal appeal by special leave, was originally filed by eight of the accused namely Randhir A2,  Amrit  -  A3,  Vijay  Kumar  -  A4,  Satyawan  -  A5, Rajesh - A6, Lakhmi Ram - A7, Shiv Narain - A8 and Manoj - A11.  2. By this Court's order dated 22.2.2010, notice was issued only with reference to the appeal preferred by A2, A4, A7, A8 and A11. The special leave petition preferred by the remaining accused was dismissed.  3. The  details  of  the  occurrence  under  reference, emerges from the statement of Raj Mal - PW7, who had made a  complaint  on  the  date  of  occurrence   itself  - 26.11.2002. In the complaint, he had asserted, that he himself and his two brothers, namely, Randhir - PW8  and Laxman (the deceased), were present at their shop at 8.30 a.m. At 8.40 a.m., six of the accused namely Satpal - A1,

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Amrit - A3, Satyawan s/o Baru Ram - A5, Rajesh - A6, Rajinder s/o Jita - A9, and Rajinder s/o Baru - A10, entered their shop. They were carrying a country made pistol, knives and “gandasas” (axes). In the complaint it was also asserted, that Satpal – A1 fired a shot with the pistol  in  his  possession,  which  hit  the  chest  of  the complainant's brother - Laxman. He further claimed, that Rajinder s/o Jita - A9 gave  a “gandasa” blow on the left cheek of the deceased Laxman. And that, Satyawan - A5 gave a “gandasa” blow on the left shoulder of Laxman. He also asserted, that Amrit - A3 inflicted a knife blow on the forehead of Laxman, and further that, Rajinder s/o Baru - A10 inflicted a “gandasa” blow on the left ear of Laxman. Having committed the aforesaid assault, it was maintained  by  the  complainant,  that  the  aforesaid  six accused came out of the shop. It was also pointed out, that at that juncture, Randhir - A2, Vijay Kumar - A4, Lakhmi Ram - A7, Shiv Narain - A8, and Manoj - A11, were standing guard outside the premises of the shop. They were preventing persons from entering the shop, as also, passersby from moving on the street in front of the shop. 4. The aforestated details depicted in the complaint, which came  to be converted into the First Information Report, were affirmed by two prosecution witnesses, who claimed to be eye-witnesses to the occurrence,  namely Raj Mal – PW7, and Randhir - PW8. Needless to mention, that both Raj Mal - PW7 and Randhir - PW8 were brothers

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of  Laxman  (on  whom  the  aforestated  injuries  were inflicted) and who subsequently succumbed to the injuries inflicted on him.  5. Insofar  as  the  deposition  of  Raj  Mal  –  PW7  is concerned,  in his examination-in-chief he asserted, that he had seen Shiv Narain - A8, and Randhir - A2 on the northern side of the shop. And that, they were armed with “lathis” (fighting sticks) and “jellies” (pitchforks). He also asserted, that he had seen Manoj - A11, Lakhmi Ram - A7 and Vijay Kumar - A4 standing on the southern side of the street, in front of the house of Shiv Lal, and that, they were also similarly armed. It was pointed out by him,  that   they  were  trying  to  stop  persons  coming towards  the  shop.  During  his  cross-examination,  he deposed as under :  

“The accused who were standing outside the shop have stopped Bir Bhan, Vinod and one Harijan to come towards the shop, where the occurrence has taken place. I have not told the names of those person  to  the  police  nor  the  police  enquired about it. Bir Bhan and Vinod came one after the other from one side, while Laxman Harijan came from  the  other  side  of  the  street.  They  were stopped at a distance of about 30 feet from our shop. I did not disclose about the places to the Draftsman or to the police where the above named three persons were stopped by the accused from the proceeding towards our shop.”  

From his aforestated statement it emerges, that besides stopping people from moving on the street, some named persons, were also prevented from entering into the shop. It is not a matter of dispute, that the instant version

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was an addition to the original version  depicted by Raj Mal  –  PW7,  at  the  time  of  registering  the  complaint. Inasmuch  as,  in  the  First  Information  Report,  it  was neither stated that any of these appellants, namely - Randhir - A2, Vijay Kumar - A4, Lakhmi Ram - A7, Shiv Narain - A8 and Manoj - A11, were armed. And furthermore, none of the persons who have now been named (as having been prevented from entering the shop), were mentioned earlier.  6. The  version  depicted  by  Randhir  –  PW8,  when  he deposed before the trial court, was on similar lines as Raj Mal - PW7. Based primarily on the evidence  of the above two eye-witnesses (Raj Mal – PW7, and Randhir – PW8), the trial court found the appellants guilty of the charges levelled against them, under sections 148, 302, 342, 452 read with section 149 of the Indian Penal Code, as also, as against Satpal - A1 under the Arms Act.  7. All the appellants preferred an appeal, against the judgment dated 23.7.2004, rendered by Additional Sessions Judge, Jind, to the High Court of Punjab and Haryana at Chandigarh (hereinafter referred to as the High Court) which was registered as Criminal Appeal No.715 DB/2004. The  above  appeal  was  dismissed  by  the  High  Court  on 18.9.2009.  8. This Court by its order dated 22.2.2010, dismissed the appeal preferred by Satpal - A1, Amrit - A3, Satyawan - A5, Rajesh - A6 and Rajinder s/o Baru – A10. The only

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remaining appellants before this Court, in the present appeal  are,  those  who  were  allegedly  standing  in  the street.  These  appellants  were  accused  of  preventing people from entering the shop at the time of occurrence, and from moving on the street in front of the shop. 9. It  is  pertinent  to  mention,  that  the  High  Court acquitted  the  accused  Rajinder  s/o  Jita  –  A9,  on  the ground that the prosecution had not been able to prove its case against him beyond all reasonable doubt.  The allegations  levelled  against  the  remaining  appellants namely Randhir  - A2, Vijay Kumar - A4, Lakhmi Ram  - A7, Shiv Narain - A8 and Manoj – A11 as noticed above, were limited  to  the  assertion,  that  they  were  preventing persons from entering into the shop premises, and also, preventing passersby from moving on the street in front of the shop.   

It was the vehement contention of the learned Senior Counsel for the appellants, that it is not even the case of the prosecution witnesses, and not even the assertion of two of the brothers of the deceased – Laxman, who had appeared  as  prosecution  witnesses  (Raj  Mal  -  PW7  and Randhir - PW8), that the present five appellants, were in any way involved in the injuries, which were inflicted on the deceased  Laxman. It was not even their assertion, that the present five appellants had entered the shop premises   at  the  time  of  the  occurrence,  or  had participated in the occurrence in any manner whatsoever,

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except  that,  they  were  allegedly  preventing  passersby from moving on the street, and from entering the shop, wherein the occurrence had taken place. 10. It  was also  the submission  of the  learned Senior Counsel  for  the  appellants,  that  according  to  the prosecution story, the motive for committing the crime was the murder of Prem s/o Baru on 30.8.2001 i.e.,  about one and quarter years prior to the present occurrence, wherein,  the  deceased  herein  –  Laxman,  was  allegedly involved. It was submitted, that the effort now was to involve as many members of the family as possible, of the deceased - Prem S/o Baru. It was also the contention of the learned Senior Counsel for the appellants, that the exact position where the five appellants were positioned, when  the  occurrence  took  place,  has  also  not  been disclosed. It was also his contention, that the persons who were stopped from moving on the street, or coming into  the  shop  by  the  present  appellants,  were  not originally named. Insofar as Bir Bhan, and Laxman Harijan are concerned, it was submitted, that the contention of Raj Mal - PW7 was, that they were prevented from coming into the shop premises, whereas, they were not named in the First Information Report. It was also pointed out, that  neither  the  concerned  passersby,  nor  the  persons named (who had been prevented, from entering into the shop premises), were recorded during the course of the investigation, or thereafter, during the course of the

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trial.   11. During  the  course  of  hearing,  when  the  factual position, indicated at the behest of the learned Senior Counsel for the appellants, was brought to the notice of the learned counsel representing the State of Haryana, he acknowledged, that none of the present five appellants participated in the occurrence, within the premises of the shop. It was also not disputed, that with reference to  A2,  A4,  A7,  A8,  and  A11,  the  factual  assertion contained  in  the  First  Information  Report  dated 26.11.2002 was limited to the fact, that “..... Vijay - A4 S/o Ram Kumar, Manoj - A11 S/o Rajender and Lakhmi - A7 S/o Baru, Brahaman by caste, were standing in front of the house of Rama Kala S/o Shiv Lal, Brahaman, in the street, and Shiv Narain – A8 S/o Sunder and Randhir – A2 S/o Jai Narayan, Brahaman, residents of the same village, were standing in front of the house of Pura S/o Kanbiya, Brahaman,  in  the  street  and  were  stopping  the passersby......”  None  of  these   accused,  according  to learned counsel, were  stated to be standing outside the shop  in  question,  or  were  preventing   persons  from entering the shop. It was also acknowledged, that none of these five appellants were alleged to have been possessed of any weapons, or that, they had caused any injuries on the deceased - Laxman.  12. It was disputed, by the learned State counsel, that their  (A2,  A4,  A7,  A8,  and  A11)  position,  was  not

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depicted in the rough sketch map. Insofar as the instant assertion is concerned, referring to the site plan Ex.PC, it was pointed out, that their exact location was marked at points 'J' and 'K', on the street in question. It was however not disputed by the learned State counsel, that the persons who were allegedly stopped from moving on the street,  and  others  who  were  allegedly  prevented  from entering into the shop premises (as per the statements of the prosecution witnesses, recorded by the trial court), were neither examined at the investigation stage, nor any evidence was produced in that behalf, by the prosecution, during the course of the trial.  13. Based on the rival submissions advanced at the hands of the learned counsel for the parties, we are of the view,  that  even  as  per  the  statements  of  two eye-witnesses, namely, the brothers of the deceased (Raj Mal  –  PW7,  and  Randhir  -  PW8),  the  present  five appellants were not involved in the assault which had taken  place  within  the  shop  premises,  on  26.11.2002. Neither  of  these  five  appellants  can,  therefore,  be stated  to  have  caused  any  injuries  to  the  deceased Laxman, on the fateful day.  14. We are of the view, that the persons named by Raj Mal  -  PW7,  as  being  prevented  from  entering  the  shop premises, namely Bir Bhan, Vinod, and Laxman Harijan, was an afterthought, as these persons were not named when Raj Mal - PW7 registered his complaint, on the date of the

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occurrence  itself.  Not  only  that,  the  statement  of Randhir  -  PW8  clearly  demolishes  the  version,  with reference to Bir Bhan, Vinod, and Laxman Harijan, since in the statement of Raj Mal - PW7, for the reason, that Randhir  -  PW8  took  the  position,  that  after  the occurrence, he had gone to his field, to call for help. And from his field, he had brought with him Vinod, Laxman Harijan, Tek Chand and Bir Bhan. Even though there is no material on the record of the case, to identify whether the persons named in the statements of Raj Mal - PW7 and Randhir  -  PW8,  were  the  same  persons,  it  is  quite apparent, that they indeed seem to be the same persons, on account of the names being the same, especially Laxman Harijan. The testimony of Raj Mal – PW7, with reference to stopping persons from coming into the shop, by the five named appellants before this Court, appears to be false.  In  any  case,  this  factual  position  cannot  be stated to be fully established. 15. When examined closely, we are of the view, that one of the present appellants namely Randhir - A2, is the nephew of Prem s/o Baru, whose murder had been committed on 30.8.2001. Lakhmi Ram – A7, is the son of Baru, and therefore,  the  brother  of  the  deceased  Prem  (in  the earlier occurrence). Manoj – A11, is the son of Rajinder s/o  Baru -  A10 and  in that  sense, the  nephew of  the deceased Prem (in the previous incident). It is apparent, that on account of enmity, innocent family members of the

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accused persons, were also roped in. The assertions made by learned Senior Counsel, on behalf of the accused, and the  response  thereto  by  the  learned  State  counsel, noticed in paragraphs 10 to 12 hereinabove, are also very meaningful,  specially  because  the  same  confirm  the position  recorded  by  us  in  the  course  of  our consideration, hereinabove. 16. We are, therefore, of the view that it is difficult to  conclude  with  certainty,  that  the  present  five appellants,  were  truly  and  factually  involved  in  the occurrence.  In  the  above  view  of  the  matter,  we  are satisfied,  that  the  appellants  are  entitled  to  the benefit of doubt. Accordingly, while giving the benefit of  doubt  to  the  appellants,  we  acquit  the  appellants (Randhir – A2, Vijay Kumar – A4, Lakhmi Ram – A7, Shiv Narain – A8 and Manoj – A11) of the charges levelled against them. Since the present appellants are on bail, their bail bonds shall stand discharged.    

….....................J [JAGDISH SINGH KHEHAR]

....................J [ARUN MISHRA]

NEW DELHI; OCTOBER 6, 2016.