Balbir Vs Vazir and Other

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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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