SURYAVIR versus STATE OF HARYANA on 3 February 2022

1. Delay condoned. Leave granted.

2. This appeal challenges the judgment and order dated 12.03.2014passed by the High Court[1] in CRA-D-No.1049-DB of 2009.

3. The present appellant (original accused No.1) and two personsnamed Devender alias Dhola and Pardeep were tried in Sessions TrialNo.16 of 19.03.2009 in the Court of Sessions Judge, Jind for havingcaused the murder of one Rajinder alias Raju on 1.10.2008 at about 6.00p.m and thereby committed offences punishable under Section 302/120-B of the Indian Penal Code, 1860[2] and Section 25 of the Indian ArmsAct, 1959[3].

4. The crime came to be registered pursuant to FIR No.566 of01.10.2008 lodged with City Police Station, Jind at the instance of oneOm Prakash, later examined as PW-12 in the trial. The substantive partof the report was as under:

“Yesterday, on 30.09.2008, I had been to Delhi, as usual for bringing 1 The High Court of Punjab and Haryana at Chandigarh.

2 ‘IPC’, for short.

3 ‘The Arms Act’, for short.

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the goods. On my return to my house in the evening at about 5.30,my wife Janki Devi told me that Kuldeep and Kamaljeet had senttwo youngsters at our home pretending to see the house, whoforcibly entered the house and asked about our son Raju, whowas not present at house at that time. They were sent out by mywife. My wife can identify them on confrontation. Today, at about6.00 p.m. I and my wife Janki Devi, were going to market forpurchasing some household goods. When, after coming out of thehouse, we reached at the main road, on which the ‘Gurudwara’situates, my son Raju was seen coming from Bharat Cinema side.A white car came alongwith him from his back side, occupied bythree youngsters. The car was suddenly stopped by the side ofRaju and two boys alightened from it and, before my sight, one ofthe boys fired from his pistol on Raju’s neck. Raju fell down onthe ground right on receiving the shot and the duo fled away towardsthe canal in that car. Later on, whose names were known to beSuryavir son of Balram, Brahman r/o Aggarwal Market, Jind,Pardeep son of Balwan Jat r/o Bhiwani Road, Jind and Devender@ Dhola son of Umed Singh, caste Jat of Sharma Nagar, BhiwaniRoad, Jind. I and my wife started taking care of my son Raju whowas smeared with blood and brought him to General Hospital,Jind for treatment in a three-wheeler, who breathed his last in theway itself. I suspect that Kamaljeet and Kuldeep sons of MeghrajPunjabi resident of Ved Nagar, Jind hatching a conspiracy, havegot my son Raju shot dead through Suryaveer, Pardeep andDevener @ Dhola, due to the grudge of not vacating the house.”

5. Post-mortem on the body of the deceased was conducted byDr. Ashwani Kumar, later examined as PW-2, who observed: -

“3. Injuries – (A) A lacerated wound of size 1 centimeter x 0.9cm x depth (/) on gape of neck placed 1 cm below posterior hairlineand 2 cm lateral to midline on left side. Margins are inverted andtattooing present around the wound clotted blood was presentaround the wound.

(B) Lacerated wound of size 1.8 x1 cm x depth (?) was presenton neck 9 cm above to upper end of sternum and 1.5 cm lateral tomidline on left side Horizontal placed Margins averted Clottedblood was present around the wound.

SURYAVIR v. STATE OF HARYANA[UDAY UMESH LALIT, J.]

On dissection of injury No.A. subcutaneous tissue andmuscles were lacerated on further dissection, there is lacerationof left wall of trachea. Major blood vessel on left side were laceratecollected of blood was present in trachea and illegible. On furtherdissection injury No.A communicates with injury No. B.

(C) A lacerated wound of size 1 x 1 cm depth (?) was present onanterior surface of left thigh 9 cm below anterior superior iliacspine margins are inverted and tattooing was present Clotted bloodwas present.

On dissection of injury No.C there is laceration ofsubcutaneous soft and muscles on further dissection by goingillegible and illegible there was of relieve girds (anterior margin)illegible left illegible and found embedded in the muscles betweenL4 & L5 vertebras on left side.

4. Scalp Skull, chest wall ribs and cartilages, abdominal wall mouthpharynx esophagus illegible bladder and organs of generationswere healthy Brain Membranes pleura right and left lung, beastillegible have spleen kidneys stomach small and large intestinepale healthy, stomach contains 100 cc of semi digested food, smallintestine contains chyme and gases, large intestine contains fecalmatter and gases. Larynx and trachea as described.

In my opinion cause of death in this case was due to shock andhemorrhage as a result of injuries describe by me. All injurieswere antemortem in nature and sufficient to cause death in ordinarycourse of nature.”

6. After completion of investigation, chargesheet was filed in whichit was asserted that the assailants had come on motorcycles and afterhaving fired at the deceased had fled away on the motorcycles.

7. During the trial, the prosecution relied upon the testimony ofPW-12 Om Parkash, father of the deceased and PW-15 Janki Devi,mother of the deceased.

A.PW-12 in his examination-in-chief stated as under:- “On 30.09.2008, I returned from Delhi in the evening andmy wife informed that two young boys had come at in ourhouse and they had entered our house forcibly. She furthertold me that our landlord sent them. She further told me A

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that they had enquired about Rajinder alias Raju from herand she had sent them out saying that Rajinder alias Rajuwas not available in the house.

On the next day i.e. 1.10.2008 after I returned from Delhi,I alongwith my wife sent to the market to make somepurchase of household articles. When we reached on theroad of the market, we saw Rajinder alias Raju comingfrom the side of Bharat Cinema. In the meantime, 2-3persons came from Bharat Cinema side and they fired atmy son Rajinder alias Raju and after that we lost our senses.Thereafter, I brought my son Rajinder alias Rajuin an autorickshaw to General Hospital, Jind. Again said when I wasbringing him to the hospital, Rajinder alias Raju died on theway. There was rumour in the Mohala that Suryavir,Devender alias Dhola and Pardeep had fired at my sonRajinder alias Raju. Said Suryavir, Devender alias Dholaand Pardeep are today present in the Court facing trial inthis case. I do not know why they killed my son Rajinderalias Raju. I lodged report with the police vide my statementEx.PH. It bears my signatures. The police had called meand had told that Suryavir, Devender alias Dhola andPardeep were the assailants. Again said, I was called bythe police for identification of the accused and I had identifiedthem as the killers of my son Rajinder alias Raju. MemosExs.PS and PT bear my signatures. The police had cometo my house at noon time and had taken me away sayingthat some secret information was received. The police hadinterrogated the accused, who had disclosed about theweapon of offence. The police had first taken me to RohtakRoad, Jind and thereafter the accused had got recoveredthe weapons from near an electric pole installed near theForest Office. After removing some earth the accused hadgot recovered pistol and revolver, and cartridges, which werewrapped in a polythene bag. The police had brought thepistol and revolver after putting the same in black polythenebag and thereafter, I do not know what proceedings thepolice did. Recovery memo Ex.PU bears my signatures.The police obtained my signatures on sketches Ex.PV andPW when the pistol and revolver were got recovered. I do not know what proceedings the police on 24.10.2008 did.”

In his cross-examination, the witness accepted:

“It is correct that I had stated to the police that threeyoung boys had come in a white colour Maruti car and oneout of them had fired at my son and thereafter the samewent away in the same car. Volunteered- at that time, Iwas not in complete senses.”

B.PW-15 Janki Devi in her examination-in-chief stated asunder:- “All the three accused, now present in the Court, havecommitted murder of my son named Raju on 1[st] October,i.e. about seven months back and now 8[th] months is running,at about 06:00 P.M. At that time, I alongwith my husbandhad come from our house for going to the market. Afterwe had covered a short distance from our house towardsthe road, I saw that my son Raju was coming from the sideof Bharat Cinema, Jind. When we reached the road. I sawthat my son Raju was at a distance of 15 to 20 yards fromus. All the three accused now present in the Court werestanding near my son Raju and all the three accused werearmed with pistols and they fired shots at my son Raju.After receipt of fire shots my son Raju fell down. Thereafter,we took our son Raju to General Hospital Jind, in a three-wheeler. Before reaching the hospital, my son died on theway.

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The accused present in the Court, after firing shots at myson Raju, had then escaped from the spot on the motorcyclestowards the canal. From the hospital, I came back to myhouse. The police had visited the spot and lifted blood fromthere vide recovery memo Ex.PM. which was attested byme. I had pointed out the place of occurrence to the police.”

In her cross-examination, the witness stated:-

“I had mentioned before the police that the accused afterfiring shot had escaped on the motorcycles (confronted withstatement Ex.DA wherein it is not so recorded).”

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A8. The Trial Court by its judgment and order dated 15.10.2009accepted the case of prosecution insofar as accused Suryavir andDevender were concerned, while benefit of doubt was given to the thirdaccused Pardeep, who was acquitted of all the charges. The Trial Courtconvicted Suryavir and Devender of the offences punishable underSection 302 read with 34 IPC and sentenced them to undergo lifeBsentence. For the offence under Section 25 of the Arms Act, they wereawarded substantive sentence of one year and six months and to pay afine in the sum of Rs.2000/-.

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9. The convicted accused Suryavir and Devender preferred CRA-D-No. 1049-DB and 1087-DB of 2009 respectively in the High Court,Cwhich by its common judgment and order impugned herein affirmed theview taken by the Trial Court and dismissed both the appeals.

10. Accused Devender alias Dhola preferred S.L.P. (Crl.) No.9957of 2016 challenging his conviction and sentence. Said Special LeavePetition was rejected by this Court at the admission stage on 05.12.2016Dwithout any reasoned order.

11. S.L.P. (Crl.) Diary No(s). 19963 of 2020 was thereafterpreferred by Suryavir i.e. the appellant with delay challenging the verysame judgment rendered by the High Court.

E12. At the stage of issuance notice, it was fairly accepted that thecase of the co-accused was rejected by this Court but it was submittedthat the matter called for interference by this Court.

13. Now the matter is taken up for final hearing.

14. We have heard Mr. R. Basant, learned Senior Advocate andFMr. Uday Kumar Sagar, learned Advocate for the State.

15. Mr. Basant learned Senior Advocate submits:- (a) Going by the contents of the First Information Report, PW-12was unaware of the identity of the assailants and it was only on the basisof rumors that he came to know about the names of the assailants. TheGsource of such information establishing the identity of the assailants wasneither disclosed nor any evidence in that behalf was led by theprosecution.

(b) PW-12 Om Prakash clearly asserted that the assailants hadHcome in a white car which version was completely given a go-by when the witnesses stepped into the box; and the prosecution now assertedthat the assailants came on motorcycles and after having shot thedeceased fled away on the motorcycles.

(c) The incident of the previous day was not even adverted to byPW-15; Janki Devi. It was also not the case of the prosecution thatthose two persons who had come to the house of PWs 12 and 15 werethe same persons who were now convicted.

(d) Though the witnesses had never disclosed the identity of theassailants on the basis of their own knowledge, even, in order to checkwhether they had really seen the assailants, test identification paradeought to have been conducted. Such test identification parade wouldhave afforded greater assurance to the Court about the identity of theassailants.

(e) The alleged enmity with and suspicion against Kamaljeet andKuldip was not even investigated into.

16. Mr. Uday Kumar Sagar, learned Advocate appearing for theState on the other hand submits that two courts had consistently takenthe view which also found affirmation in dismissal of Special LeavePetition preferred by co-accused Devender and that there is no reasonto take a different view in the matter.

17. It is quite clear that PW-12 and PW-15 were not aware of theidentity of the assailants. Their source of information was rumours, onthe basis of which an assertion about the identity of the appellant wasmade in the first information report. What was the source of information,was never disclosed at any juncture nor any witness was examined bythe prosecution to establish that. In the absence of primary source whoknew the identity and had witnessed the incident, such assertions in thefirst information report as well as the examination-in-chief of thewitnesses would not be adequate and trustworthy. It was not even thecase of PW-15 that two convicted accused had come to her house onthe previous day. As a matter of fact, she did not even assert anythingabout the incident that occurred on the previous day. There was, thus,no occasion for her to have seen the convicted accused earlier.Furthermore, no test identification parade was conducted. Boxidentification by the witnesses for the first time in court, in thecircumstances, could not by itself be relied upon to establish the identityof the assailants.

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A18. That leaves us with subsidiary evidence regarding recovery,which in the absence of substantive evidence, by itself would not besufficient. In the circumstances, in our considered view, the prosecutionfailed to establish its case beyond reasonable doubt. The appellant would,therefore, be entitled to acquittal. The instant appeal is thus allowedacquitting him of the charges levelled against him.B

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19. We must now consider the effect of dismissal of S.L.P. (Crl.)No.9957 of 2016 preferred by co-accused-Devender alias Dhola. Theorder dismissing the special leave petition did not give any reason fordismissal.C20. In our view, the cases of both the convicted accused i.e.

20. In our view, the cases of both the convicted accused i.e.Devender and the present appellant stand on the same footing and ifafter having considered the matter, benefit is given to the presentappellant, similar benefit ought to be extended to Devender.

21. In similar circumstances, in Akhil Ali Jehangir Ali Sayyed v.DState of Maharashtra[4], a Bench of two judges of this Court relied uponthe earlier decision rendered by a Bench of three Judges of this Court inHarbans Singh vs. State of U.P.[5] and extended the benefit to a co-accused whose special leave petition and review application weredismissed by this Court.

EThe relevant discussion on the point was:

“6. The above is not enough to dispose of this matter. As thesecond accused Jabbar was placed on the same situation asthe appellant in this case (if not lesser), Article 21 of theConstitution would not permit us to deny the same benefit toFthe second accused, notwithstanding the fact that the SLP andthe review application filed by him have been dismissed by thisCourt. We are supported on this aspect by a course adoptedby a three Judge bench headed by chief justice ChandrachudinHarbans Singh v. State of U.P. Inthat case also, the co-accused were sentenced and the sentence had been confirmedGby this Court earlier. But when a benefit was granted in anotherappeal to one of the other co-accused, the three Judge benchheld that the same benefit shall be extended to the earlier co- H

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accused also albeit the dismissal of their appeals on anantecedent date.

7. The following passage from the said decision can be profitablyextracted below:

“19. In the circumstances hereinabove stated, I am of theopinion that it will be manifestly unjust to allow the deathsentence imposed on the petitioner to be executed. Thequestion that, however, troubles me is whether this Courtretains any power and jurisdiction to entertain and pass anyappropriate orders on the question of sentence imposed onthe petitioner in view of the fact that not only his specialleave petition and review petition have been dismissed bythis Court but also the further fact that his petition forclemency has also been rejected by the President.

20. Very wide powers have been conferred on this Courtfor due and proper administration of justice. Apart from thejurisdiction and powers conferred on this Court underArticles 32 and 136 of the Constitution, I am of the opinionthat this Court retains and must retain, an inherent powerand jurisdiction for dealing with any extraordinary situationin the larger interests of administration of justice and forpreventing manifest injustice being done. This power mustnecessarily be sparingly used only in exceptionalcircumstances for furthering the ends of justice. Havingregard to the facts and circumstances of this case, I am ofthe opinion that this is a fit case where this Court shouldentertain the present petition of Harbans Singh and this Courtshould interfere.”

8. After bestowing our anxious consideration on the factsituation in this case and also the spirit of Article 21 of theConstitution we hereby order that the conviction passed on thesecond accused Jabbar shall also stand altered to Section 304Part I, and a sentence of rigorous imprisonment for ten yearsbe awarded to him. This is done on a parity of reasoning andjustice, otherwise glaring injustice would result for him in acase where his role was by no means more serious than thatof the present appellant who was A 1 in the case.”

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A22. In the premises, for furthering the ends of justice, we recallthe order of dismissal passed by this Court in S.L.P. (Crl.) No.9957 of2016 and said SLP is restored to the file. This course is adopted even inthe absence of any such prayer or application on part of Devender. Weproceed to grant leave in his matter and allowing his appeal, we extendsimilar benefit to said Devender. He is thus acquitted of all the chargesBlevelled against him.

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23. The Registry is directed to send appropriate intimation withregard to the appeal arising out of SLP (Crl.) No.9957/2016 being allowedto the concerned Jail authorities so that benefit can be extended to saidDevender.

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24. Both convicted accused shall be set at liberty unless theircustody is required in connection with any other offence.

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Ankit Gyan

(Assisted by Aarsh Choudhary, LCRA)

Appeal allowed.

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