RAJESH @ SARKARI & ANR versus STATE OF HARYANA

9. On the basis of the above narration, it has been submitted that: (i) The parcel containing the pistol marked as W/2 and the test fired bullet, sealed by the ballistic examiner as per the second FSL report dated 25 September 2007, admittedly had not been received and described in the description of articles contained in the third FSL report dated 29 November 2007, arising from FIR No. 781 (present case); (ii) There is no material on record to establish that it was brought to the notice of the Assistant Director, RK Koshal, who examined the articles contained in the parcels, about any connection of the parcels received for examination, with the parcels examined in the second FSL report dated 25 September 2007; (iii) The description of the pistol in the second FSL report dated 25 September 2007 indicates that it is chambered for 7.62mm/0.30” cartridges. However, the description of the cartridges received in the third FSL report in this case is 7.62mm mauser pistol fired cartridge cases.

The recovery memo in regard to the place of occurrence refers to seven empties and one cartridge bearing the description of S and B 7.62 X 25, whereas in the second FSL report dated 25 September 2007 the description is 7.62mm / 0.30” cartridge; and (iv) Though the author of the third FSL report dated 29 November 2007 states that the cartridge cases marked C/ 1 to C/7 and the bullet marked BC/1 to BC/3 had been fired from the country made pistol marked W/2, the said pistol was never produced before the author of this report nor was any information placed before him about the interconnection of pistol W/2 and the cartridge cases to C/ 1 to C/7 or the fired bullets BC/1 to BC/3. The IO of the present case, PW21, has, in the course of his cross- examination, admitted that on the empty shells Exhibits P4 to P10, there was an inscription 7.62K 25, which does not tally with the description recorded in the second FSL report dated 25 September 2007 or the third FSL report dated 29 November 2007.

10. On the basis of the above discrepancies, it has been urged on behalf of the appellants that the prosecution has failed to establish that PW4 and PW5 were eye-witnesses at the scene of occurrence. Moreover, the prosecution has failed to establish the correctness of the FSL report. The ballistics examiners have not been examined in the course of the evidence tendered by the prosecution. The discrepancies in the FSL reports could have been explained in the course of the examination by the FSL examiners. Their non-examination cuts at the root of the case of the prosecution and would entitle the appellants to an acquittal.

11. On the other hand, Mr Deepak Thukral, learned Standing Counsel appearing on behalf of the Haryana, has opposed the submissions of the appellants and submitted: (i) As regards the presence of PW4 and PW5, the Sessions Court noted that the deceased had sustained 13 injuries as a result of the fire arm attack. PW4 and PW5 who had come to the scene of the offence on their motor-cycle could not possibly have removed the deceased on a two-wheeler to the hospital and hence it was DW4- Parveen who took him in the car belonging to the deceased; (ii) Corroboration of the presence of PW4 and PW5 at the scene of offence is established by the fact that the track suit of the deceased was handed over by PW5 to the police. One of the articles that has been examined in the course of the third FSL report is the track suit of the deceased. This would indicate the presence of PW4 and PW5; (iii) PW4 and PW5 were cross-examined at length on their presence at the scene of occurrence.

Their testimony is RAJESH @ corroborated by the medical evidence which suggests that the death occurred due to extensive fire arm injuries; (iv) As regards the FSL reports, the test cartridges were fired from pistol W/2 and the test firing was carried out in the lab. The test cartridges and test bullets were again compared. However, the third FSL report inadvertently mentions that pistol W/2 was recovered from Rajesh though it was actually recovered from Ajay; (v) Though the third FSL report does not refer to pistol W/1 which was recovered from Rajesh, his conviction can be sustained under the provisions of Section 34 of the IPC having regard to the extensive nature of the fire arm injuries and the recovery of fire arms; (vi) Both the appellants refused the test identification parade and an adverse inference ought to be drawn. The explanation of the appellants that they did so because their photographs were published in the newspapers is belied by the fact that out of the three newspaper publications, only one had mentioned their names and none of them had published their photographs; (vii) The FSL reports were filed by the defence after the statements of the appellants under Section 313 of the CrPC were recorded, and the failure to examine the ballistics examiner must be construed from that perspective; (viii) The eye-witness account of PW4 and PW5 finds corroboration in the medical evidence and the FSL report; and (ix) Though the appellants have sought to discredit the prosecution version by adverting to the blackening of the injury, blackening is not always due to the close range of the firing, as noticed in the judgment of this Court in Mohan Singh vs. State of M.P.9

12. The rival submissions will now be considered. Broadly speaking the submissions in the present case traverse three areas: 9 (1999) 2 SCC 428 (i) Whether PWs 4 and 5 were eye-witnesses at the scene of occurrence on 26 December 2006; (ii) The weight to be ascribed to the third FSL report; and (iii) The refusal of the accused appellants to undergo a test identification parade.

13. Each of the above aspects needs to be analyzed. The presence of PW4-Azad Singh and PW5-Sunil Singh

14. PW4 is the complainant, the father of the deceased. PW5- Sunil is the brother of the deceased. The FIR records that the information was received at the Police Station Sadar, Rohtak at 5:20 pm on 26 December 2006. General diary reference entry 22/2012 is at 6:20 pm. The FIR which was registered on the statement of PW4 states that the son-in-law of the complainant had come to visit and wanted to meet the deceased Sandeep. Since Sandeep was not reachable at his cell phone, PW4 and PW5 are stated to have gone to the University and when they arrived near the law department they noticed “six boys under the tin sheds”, who started firing at Sandeep. The incident is stated to have taken place at 2:30 pm and following the gun shots which were fired at him, Sandeep is stated to have fallen on the ground. According to the FIR, the accused escaped from the spot. The complainant stated that he and his son Sunil could identify the three young boys if they were brought before them. The FIR contains a specific statement that Sandeep was removed to PGIMS, Rohtak by Parveen, son of Zile Singh Hooda, a resident of Kailash Colony, Rohtak and by one other boy in a Santro car which was standing at the spot.

15. The principal line of attack to doubt whether PW4 and PW5 are eye- witnesses to the occurrence is based on the improvements made in the course of their deposition. In the course of his examination- in-chief, PW4 stated that when he and PW5 were at a distance of 100 feet from Sandeep, they saw “three boys firing shots”. He purported to identify the three accused who were present in the Court as the persons who had fired on his son “with weapons which were like pistols and revolvers”. PW4 then stated that “we [meaning thereby PW4 and PW5] took our son Sandeep in Santro car to the Casualty Department of PGIMS, Rohtak as my son was having bullet injuries on his chest, thighs, arm and temple”. PW4 states that Sandeep was declared as brought RAJESH @ dead by the doctors and then the police reached the hospital and recorded his statement, marked as Exhibit PB. During the course of the cross- examination, PW4 denied that at the time of occurrence, Sikandar Rathi (DW5) and ‘Lehri’ (potentially referring to DW4) were standing with his son. In the course of the cross-examination, it was suggested to PW4 that Sandeep was not removed by him and PW5 to the hospital and that as a matter of fact, it was Sikandar Rathi (DW5) and ‘Lehri’(DW4) who had taken him to the hospital. PW4 denied this suggestion as well as the suggestion that neither he nor PW5 were present at the scene of occurrence. PW4 also stated that the clothes worn by him and by PW5 were smeared with blood but they had not been collected by the police. According to PW4, he and PW5 reached PGIMS, Rohtak at about 2.45pm and the police had arrived at 4:00 pm.

16. In the course of his examination-in-chief, PW5 similarly stated that Sandeep had been removed to the hospital by him and his father PW4 and that he gave the shirt of the track suit of Sandeep to the police, which was removed by him while they were shifting him to hospital. PW5, in the course of his cross-examination stated that when he and PW4 took Sandeep to hospital their clothes were smeared with blood but that neither he nor PW4 handed over their clothes to the police.

17. PW4, in the course of his cross-examination, stated that he, PW5 and “one unknown person” had lifted Sandeep from the spot to take him to PGIMS, Rohtak. On the other hand, PW5, in the course of his deposition, does not mention the presence of any third person who took Sandeep with them to the hospital. While PW4 states that the police reached the hospital at 4:00pm, PW5, on the other hand, is unaware of when the police had reached the hospital. Now, in this background, it is important to notice that there are clear improvements made by PW4 and PW5, which have a bearing on whether they were eye-witnesses to the alleged occurrence. Both PW4 and PW5 have made substantial improvements in the course of their examination in evidence. Both the witnesses attempted to bolster the case of the prosecution with regard to their presence at the scene of crime and of being eye-witnesses to the occurrence by stating that they had removed Sandeep to the hospital after he had been gunned down.

The absence of any reference to their taking Sandeep to the hospital in the FIR has a bearing on whether they were eye-witnesses to the occurrence. The incident took place at the University where the deceased was a student and, according to PW4, was preparing for his supplementary law exams. The theory that PW4 and PW5 were present at the scene of offence and had removed the deceased to the hospital must be tested with reference to two significant circumstances which have emerged from the record. First, the record of the trial before the Sessions Court, which has been produced before this Court, indicates that the deceased was brought dead to PGIMS, Rohtak at 3:00pm. The ruqqa was sent to the police at 3:35 pm. The ruqqa indicates that the deceased was brought by “Sandeep Lehri son of Shri Zile Singh Hooda, Resident of Kailash Colony, Rohtak”. The reference to ‘Sandeep Lehri’ is a significant circumstance which indicates that neither PW4 nor PW5 were present at the scene of offence which is why, after the incident, it was not PW4 or PW5, but a third person who had transported the deceased Sandeep to the hospital.

The Sessions Court while appreciating this aspect, explained away the argument of the defence that neither PW4 nor PW5 were present at the scene of offence, by holding that perhaps both of them were present, but had suffered a shock of having witnessed the murder of Sandeep which is why the ruqqa was signed by DW4. In arriving at this conclusion, the Sessions Court had supplied an explanation which does not comport with the case of the prosecution. Second, the case of the prosecution, it must be noted, was not that Sandeep was taken to the hospital by two other persons who eventually were produced by the defence in evidence as DW4 (Parveen) and DW5 (Sikandar Rathi). The case of the prosecution was that as a matter of fact PW4 and PW5 had taken Sandeep to PGIMS, Rohtak. As we have noted earlier, PW4 stated that he, PW5 and an unknown person had done so, while PW5 stated it was only PW4 and him who had removed the injured to hospital.

The defence produced, among other witnesses, DW4 and DW5. In the course of his examination, DW4 stated that he and DW5 had taken Sandeep to the hospital and that PW4 and PW5 had arrived at the hospital after they reached there. DW4 stated that he and DW5 removed Sandeep to PGIMS, Rohtak and it was about 10 to 15 minutes after their arrival at the hospital that PW4 and other relatives reached the hospital. Though the ruqqa mentioned the name of the person who brought the deceased to PGIMS as Sandeep Lehri, son of Zile Singh Hooda, resident of Kailash Colony Rohtak, the name of the person is evidently incorrect since it is Parveen (DW4) who is the son of Zile Singh Hooda and resident of Kailash Colony, Rohtak. DW4 and DW5 stated that it was them who had taken Sandeep to the hospital and neither PW4 nor PW5 were present at the scene of the occurrence. RAJESH @

18. Learned Counsel appearing on behalf of the respondent sought to submit that the presence of PW5 at the scene of occurrence is corroborated by the fact that the shirt of the track suit of the deceased was handed over by PW5 to the police and it had been examined in the third FSL report. The handing over of the track suit of the deceased Sandeep to the police at the hospital by PW5 would indicate his presence at PGIMS, Rohtak but does not establish that PW4 or PW5 were eye- witnesses to the incident which took place near the law department at the University. As a matter of fact, DW5 in the course of his examination stated that he and DW4 had informed the father and brother of the deceased and that the police had also recorded their statements. The presence of DW4 is a reasonable inference which emerges from the ruqqa. For reasons best known to the prosecution, neither DW4 (Parveen) nor DW5 (Sikandar) were produced as witnesses and the failure of the prosecution to lead the evidence of DW4 (Parveen) is a matter which has a bearing on the issue as to whether PW4 and PW5 were genuine eye-witnesses at the scene of occurrence. The material and evidence which has emerged on the record is sufficient to cast doubt on their presence at the scene of occurrence. Additionally, the Sessions Court did not deal with the depositions of DW4 and DW5, save and except for stating that their deposition on the age of the assailants being around 30-35 years, did not inspire confidence. The discussion in the judgment of the Sessions Court on this crucial aspect lacks proper evaluation of the evidence at hand.

19. In this background, it is necessary to notice that according to the FIR which was lodged on a complaint by PW4, there was a previous enmity/quarrel between the deceased and the accused. PW4, in the course of his cross-examination stated that the deceased was facing trial in 2-3 cases, in some of which he had been acquitted. However, PW4 expressed ignorance about whether the deceased was a co-accused with accused Rajesh alias Sarkari. Moreover, he stated that he did not know the accused Rajesh on account of his being co-accused with Sandeep in a case bearing FIR No. 341 dated 23 June 2001 under Sections 454/380 of the IPC at Police Station, Civil Lines, Rohtak or whether they were arrested in the case. He denied the suggestion that Sandeep and Rajesh appeared together in the case and that PW4 had visited the court on each and every date of hearing of that case, in spite of PW4 being a surety in that case for the deceased Sandeep. Contrary to what was stated in the FIR, PW4 in course of his cross examination stated that the deceased had no previous enmity with any of the accused before the occurrence. PW5, in the course of his cross- examination, was confronted with the fact that the deceased had been facing trial in criminal cases and specifically admitted that the deceased was facing criminal trial in 2-3 matters, where he was acquitted on account of a compromise. PW5 also stated that he was unaware as to whether Sandeep was a co-accused together with Rajesh in a case bearing FIR No. 341 under Sections 454 and 380 of the IPC. However, he stated: “It is correct to suggest that I and my father used to come to the court when my brother Sandeep alias Bhander and present accused Rajesh alias Sarkari were being produced in the court on various dates of hearings. I do not know as to who had the engaged the counsel for my brother in that case and who stood surety for him”.

20. The fact that the deceased was facing trial in other cases was also stated in the course of DW4’s examination-in-chief. This aspect of the case would be of particular relevance to determine whether an adverse inference should be drawn, as the State has suggested, to the refusal of the appellants to submit themselves to a test identification parade. This aspect will be dealt with in a subsequent part of the judgment. FSL Reports

21. Now while considering this aspect of the record, it must be noticed that the weapons which are alleged to have been used by the two appellants in the course of the crime were, according the prosecution, seized in connection with another FIR No. 311 under Section 307 read with Section 34 of the IPC and Sections 25, 54, 59 of the Arms Act, registered on 19 May 2006 at Police Station Civil Lines, Rohtak, against both the appellants. There are two FSL reports pertaining to FIR No. 311: 1) The first FSL report dated 12 March 2007 pertains to three parcels containing: (i) clothes of the one injured Kuldeep in that case; and (ii) One 7.65mm fired bullet stated to have been taken from the body of the injured marked BC/1; and four 7.65mm fired pistol cartridges cases and one 7.65 live pistol cartridges collected at the place of occurrence (marked C/ 1 to C/4 and L/1). RAJESH @ The first FSL report is to the following effect: LABORATORY EXAMINATION The class as well as individual characteristic marks present on 7.65mm fired cartridge cases marked C/1 to C/4 were examined and inter-compared under stereo and comparison microscope. 7.65mm fired bullet marked BC/1 was also examined under stereo microscope.

The holes on the clothes contained in parcel No. 1 were examined for firearm discharge residues. Lead was detected from the margins of the holes on T-shirts and paints. The margins of the holes on the T-shirt and paints contained in parcel No. 1 were also examined under stereo microscope. Based on the examination carried out in the laboratory, the result of analysis is as under: RESULT 1. 7.65mm fired cartridge cases marked C/1 to C/4 have been fired from the one and same fire arm. 2. 7.65mm fired bullet marked BC/1 has been fired from a Country made firearm. 3. Holes on the T-shirt and the paints contained in parcel No. 1 have been caused by bullet projectiles. 4. Report in original from Serology division is enclosed herewith. Note: After examination exhibits examined in the Ballistics division were resealed along with the original wrappers with the seals of L.S.Y. (BALL) FSL (H).” The FSL report has been prepared by LS Yadav, Senior Scientific Officer (Ballistics) at the Forensic Science Laboratory, Madhuban, Karnal. 2) The second FSL report dated 25 September 2007 (described as a part report in connection with FIR No. 311) deals with 4 parcels containing: (i) one pistol chambered for 7.65mm cartridges along with a magazine bearing No. 7111, one 7.65mm fired cartridge case and one 7.65mm live cartridge stated to have been recovered from accused Rajesh.

The pistol was marked W/1 and the cartridge case C/5; (ii) one pistol chambered for 7.62mm/0.30” cartridges and magazine and one 7.62mm misfired cartridge stated to have been recovered from accused Ajay. The pistol was marked W/2 and the misfired cartridge MC/1; (iii) one 7.65mm fired bullet (already market BC/1 in FSL No. F-06/2193) referred to in the first FSL report; and (iv) four 7.65mm fired cartridge cases and one 7.65mm live cartridge (the fired cartridges marked C/1 to C/4 in the first FSL report). The second FSL report contains the following: “LABORATORY EXAMINATION Products of combustion of smokeless powder were detected from the barrels of pistols marked W/1 (chambered for 7.65mm cartridges), w/2 (Chambered for 7.62mm/.30.” cartridges). Test firings were done in the laboratory from pistols marked W/1 & W/2. Their firing mechanism were found in working order. The class as well as individual characteristic marks present on 7.65mm fired cartridge cases C/1 to C/5, 7.62mm/.30" misfired cartridge marked MC/1, 7.65mm fired bullet BC/1 and those on test fired cartridge cases and bullets fired from pistols marked W/ 1 (chambered for 7.65mm cartridges), W/2 (chambered for 7.62mm/30" cartridges) were examined and compared with their respective caliber/bore under stereo and comparison microscope.

Based on the examination carried out in the laboratory, the result of analysis Is as under. RESULT 1. Pistols marked W/1 (chambered for ·7.65mm cartridges), W/2 (chambered for 7.62mm/.30" cartridges) are firearms as defined in the Arms Act 54 of 1959. Their firing RAJESH @ mechanism were found in working order. Pistols W/1 & W/2 had been fired through. 2. 7.65mm fired cartridge case marked C/5 has been fired from pistol marked W/1 (chambered for 7.65mm cartridges) and not from any other firearm even of the same make and bore/calibre, because every firearm has got its own individual characteristic marks. 3. 7.62mm misfired cartridge marked MC/1 has missed- fire from pistol marked W/2 (chambered for 7.62mm/.30" cartridges) 4. 7.65mm fired cartridge cases marked C/1 to C/4 and 7.65mm fired bullet BC/1 have not been fired from pistol marked W/1 (chambered for 7.65mm cartridges) Note :- i) After examination, exhibits were resealed alongwith their original wrappers with the seal of L.S.Y, SSO (BALL) FSL.(H). ii) One number of 7.65mm live cartridge received in parcel No. IV has been used in test firings in the laboratory.” The second FSL report has also been prepared again by LS Yadav, Senior Scientific Officer (Ballistic) at the FSL, Madhuban Karnal. 3) The third FSL report dated 29 November 2007 in the present case is marked as Exhibit PD.

The third FSL report is with reference to a forwarding memo of the Deputy Superintendent of Police (HO Rohtak) dated 31 December 2006 regarding five sealed parcels in connection with FIR No. 781 dated 26 December 2006 under Section 302 read with 34 of the IPC and Sections 25, 54 and 55 of the Arms Act at Police Station Civil Lines, Rohtak. The forwarding memo is stated to have been received by the FSL on 8 January 2007. The FSL report contains a description of five articles in the parcels as follows: (i) blood stained earth lifted from the place of occurrence; (ii) seven 7.62mm mauser pistol fired cartridge cases and one 7.62mm mauser pistol fired bullet stated to have been recovered from the place of occurrence. The cartridge cases marked as C/1 to C/3 and the bullet BC/1; (iii) blood-stained cloth recovered from the car by the witness and blood- stained clothes of the deceased; and (iv) two 7.62mm deformed and mutilated fired bullets, two lead pieces stated to have been recovered from the body of the deceased (the bullets are BC/2, BC/3, and the lead pieces are BC/4 and BC/5).

The third FSL report contains the following: “LABORATORY EXAMINATION The class as well as the individual characteristic marks present on 7.62mm mauser pistol fired cartridge cases marked C/1 to C/ 7 and 7.62mm mauser pistol fired bullets marked BC/1 to BC/3 and those on test carriages and test bullets fired from country made pistol marked W/2 (chambered for 7.62mm cartridges) [Received in case FSL No. 07/F-3937 FIR No. 311 dated 19.05.06 U/S 307/34 IPC & 25/54/59 A.Act P.S Civil Line Rohtak recovered on 25.06.07) were examined and compared under stereo and comparison microscope. The clothes contained in parcel No. III & IV were examined for the presence of gunshot discharge residues. Copper and lead in traces were detected from the margins of the holes on the clothes contained in parcels No III & IV. The holes on the clothes were also examined under stereo microscope. The lead pieces marked BC/4 & BC/5 contained in parcel No. V were examined. Lead piece marked BC/4 was found to be a 455” revolved bullet.

No regular rifling marks were observed on BC/4 when examined under stereomicroscope. Based on the examination carried out in the laboratory, the result of analysis is as under: RESULT 1. The 7.62mm fired cartridge cases marked C/1 to C/7 and 7.62 mm fired bullets marked BC/1 to BC/3 have been fired a country made pistol marked W/2 chambered for 7.62mm cartridges) [Received in case FSL No. 07/F-3937 FIR No. 311 dated 19.05.06 U/S 307/34 IPC & 25/54/59 A.Act PS Civil Line Rohtak recovered on 25.6.07 Rajesh @ Sarkare) RAJESH @ and not from any other firearm even of same make and bore, because every firearm has got its own individual characteristics marks. 2. The holes on the clothes contained in parcel No. III & IV have been caused by bullet projectiles. 3. The lead piece marked BC/5 contained in parcel No. V could form part of core of a bullet. 4. The lead piece marked BC/4 was found to be deformed and mutilated .455” revolver bullet.

No regular rifling marks were observed on BC/4. 5. Report in original from Serology division is enclosed herewith. Note:- i) Exhibits examined in the Ballistics Division were resealed alongwith their original wrappers with the seal of A.D.(BALL)/ FSL (H).” The third FSL report has been prepared by RK Koshal, Assistant Director (Ballistics) at the Forensic Science Laboratory, Madhuban, Karnal.

22. In evaluating the third FSL report, three crucial aspects need to be flagged at this stage: first, the FSL report contains a comparison and analysis of what is described in the result as a “country made pistol marked W/2 chambered for 7.62mm cartridges”; second, the FSL report contains no reference to the pistol which was marked as W/1 in the second FSL report dated 25 September 2007 in reference to FIR No. 311 and third, the above extract under the result section indicates that pistol W/2 (which is the only pistol analysed) was recovered from Rajesh alias Sarkari in the course of the investigation in FIR No. 311. The above aspects have a crucial bearing on the weight to be ascribed to the third FSL report.

23. The three aspects which have been highlighted above demonstrate that, out of the alleged two recoveries of the pistols which were marked as W/1 and W/2 in the course of the investigation into FIR No. 311, only one of the two pistols, namely W/2, has been analysed with reference to the cartridges and fired bullets stated to have been recovered from the scene of offence in the present case. Pistol W/1, as the second FSL report dated 25 September 2007 in relation to FIR No. 311 indicates, was alleged by the prosecution to have been recovered at the behest of accused Rajesh while pistol W/2 was allegedly recovered from accused Ajay. The third FSL report in the present case contains a ballistics analysis of only one of the two pistols namely W/2 and not W/ 1. Moreover, the third FSL report contains an erroneous statement that W/2 was recovered at the behest of Rajesh when, as we have seen, W/ 2 is a recovery which the prosecution alleges to have been made from accused Ajay in the course of the investigation in the FIR No. 311. Pistol W/1 was, in other words, clearly not made available to the examiner for the purpose of a ballistic examination.

24. Learned Senior Counsel appearing on behalf of the appellants also highlights the following discrepancies: (i) While the recoveries which were made at site are described as 7.62/25mm cartridges, the FSL report in the context of FIR No. 311 contains a reference to 7.62/30mm cartridges; (ii) What was test fired for the purposes of the ballistic examination in FIR No.311 were the 7.62/30mm bullets; and (iii) While the third FSL report dated 29 November 2007 in the present case refers to mauser pistol fired bullets, the conclusion is at variance in that it refers to a country made pistol.

25. The submission of the appellants is that the weapon which was seized in the context of the earlier investigation was not made available to the examiner in the present case at all. This submission was sought to be refuted by reason of the fact that a test firing of weapon W/ 2 did take place.

26. Now in this background an important facet of the matter which requires to be noticed was that neither the author of the first and second FSL reports in the context of the seizure and recovery of weapons W/1 and W/2 in FIR No. 311; nor the author of the third FSL report in the context of FIR No.781 (the FIR in the present case) have been examined by the prosecution in the course of the evidence.

27. The learned Counsel appearing on behalf of the State sought to explain the failure of the prosecution to examine the ballistics examiners in evidence by submitting that the FSL reports were, as a RAJESH @ matter of fact, filed by the defence after the statements of the appellants under Section 313 of the CrPC were recorded. This submission was, in particular, urged in response to the grievance of the appellants that in the statements under Section 313, only Exhibits PD and PF were drawn to the attention of the accused. Learned Counsel for the State urged that since the FSL reports have been produced by the defence, the failure of the prosecution to examine the ballistics examiner stands explained.

28. In this context, it would now be necessary to advert briefly to the legal position. In Mohinder Singh vs State10 (“Mohinder Singh”), a three judge Bench of this Court observed: “12. In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of that case. In the present case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle. Indeed, it seems more likely that they were caused by a rifle than by a gun, and yet the case for the prosecution is that the appellant was armed with a gun and, in his examination, it was definitely put to him that he was armed with the gun P-16. It is only by the evidence of a duly qualified expert that it could have been ascertained whether the injuries attributed to the appellant were caused by a gun or by a rifle and such evidence alone could settle the controversy as to whether they could possibly have been caused by a firearm being used at such a close range as is suggested in the evidence. It is clear, and it is also the prosecution case, that only 2 shots were fired at Dalip Singh and one of the crucial points which the prosecution had to prove was that these shots were fired by two persons and not by one man, and both the shots were fired in such manner and from such distance as is alleged by the eyewitnesses.” (emphasis supplied) 10 AIR 1953 SC 415

29. The decision in Mohinder Singh was considered by a co- ordinate Bench of this Court also consisting of three judges in Gurucharan Singh vs State of Punjab11 (“Gurucharan Singh”). In Gurucharan Singh, the Court noted that in the earlier decision, the case of the prosecution was that the accused had shot the deceased with a gun but it appeared likely that the injury on the deceased had been inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries had been caused by a gun. Moreover, the nature of the injuries was such that the shots must have been fired by more than one person and there was no evidence to show that another person had also engaged in the shooting. The oral evidence was not of disinterested witnesses. Hence, it was held that in that backdrop, the failure to examine an expert was a serious infirmity in the prosecution case. Explaining the facts as they emerged in the earlier decision in Mohinder Singh, the three judge Bench in Gurucharan Singh held: “41. […] It would be noticed that these observations were made in a case where the prosecution evidence suffered from serious infirmities and in determining the effect of these observations, it would not be fair or reasonable to forget the facts in respect of which they came to be made. These observations do not purport to lay down an inflexible Rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post-mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case. Therefore, we do not think that Mr Purushottam is right in contending as a general proposition that in 11 (1963) 3 SCR 585 RAJESH @ every case where a firearm is alleged to have been used by an accused person, in addition to the direct evidence, prosecution must lead the evidence of a ballistic expert, however good the direct evidence may be and though on the record there may be no reason to doubt the said direct evidence.” Hence, in Gurucharan Singh, this Court held that there is no inflexible rule to the effect that the prosecution could succeed in proving the charge of murder alleged to have been caused with a lethal weapon only if an expert is examined.

Where the direct evidence is of an unimpeachable character and the nature of the injuries disclosed by the post-mortem reports is clearly consistent with the direct evidence, the examination of a ballistics expert may not be essential. Contrarily, the evidence of a ballistics expert would assume significance where direct evidence is not satisfactory, or is of interested witnesses or where the nature of the injuries requires expert corroboration. In other words, whether the examination of a ballistics expert is necessary is dependent upon the factual context as it emerges in each case.

30. In Sukhwant Singh vs State of Punjab12 (“Sukhwant Singh”), a two judge Bench of this Court held that the omission of the investigating officer to send a recovered empty and sealed pistol to the ballistics expert for examination was a significant omission. In that context, the bench observed: “21. […] It hardly needs to be emphasised that in cases where injuries are caused by firearms, the opinion of the ballistic expert is of a considerable importance where both the firearm and the crime cartridge are recovered during the investigation to connect an accused with the crime. Failure to produce the expert opinion before the trial court in such cases affects the creditworthiness of the prosecution case to a great extent.”

31. In State of Punjab vs Jugraj Singh13 (“Jugraj Singh”), a two judge Bench of this Court distinguished the decision in Sukhwant Singh and noted that in that case the evidence of two eye-witnesses was held to be inadmissible since they were not examined in terms of Section 138 of the Evidence Act and the court did not rely on the sole testimony of PW3. Hence, the failure to produce an expert opinion was 12 (1995) 3 SCC 367 13 (2002) 3 SCC 234 held to have affected the credit worthiness of the prosecution case. In Jugraj Singh, the Court held that: “nowhere it was held [in Sukhwant Singh] that on account of failure to produce the expert opinion the prosecution version in all cases should be disbelieved”. Accordingly, in Jugraj Singh, the Court noted: “18. In the instant case the investigating officer has categorically stated that guns seized were not in a working condition and he, in his discretion, found that no purpose would be served by sending the same to the ballistic expert for his opinion. No further question was put to the investigating officer in cross-examination to find out whether despite the guns being defective the fire pin was in order or not. In the presence of convincing evidence of two eyewitnesses and other attending circumstances we do not find that the non-examination of the expert in this case has, in any way, affected the creditworthiness of the version put forth by the eyewitnesses.”

32. In Vineet Kumar Chauhan vs State of UP14, a two judge Bench of this Court has held: “11. It cannot be laid down as a general proposition that in every case where a firearm is allegedly used by an accused person, the prosecution must lead the evidence of a ballistic expert to prove the charge, irrespective of the quality of the direct evidence available on record. It needs little emphasis that where direct evidence is of such an unimpeachable character, and the nature of injuries, disclosed by the post- mortem notes is consistent with the direct evidence, the examination of ballistic expert may not be regarded as essential. However, where direct evidence is not available or that there is some doubt as to whether the injuries could or could not have been caused by a particular weapon, examination of an expert would be desirable to cure an apparent inconsistency or for the purpose of corroboration of oral evidence.”

33. In Govindaraju vs State15, a two judge Bench of this Court drew an adverse inference where no person from the FSL had been examined. In drawing this conclusion, the Court referred to the non- production of material witnesses like the doctor, who performed the post- 14 (2007) 14 SCC 660 15 (2012) 4 SCC 722 RAJESH @ mortem and examined the victims, and the head constable and constable, who reached the site upon occurrence. Since the other witnesses produced by the prosecution had also turned hostile, the Court drew an adverse inference against the prosecution for not examining these material witnesses. The Court noted: “63. There is certainly some content in the submissions made before us that non-production of material witnesses like the doctor, who performed the post-mortem and examined the victim before he was declared dead as well as of the Head Constable and the constable who reached the site immediately upon the occurrence and the other two witnesses turning hostile, creates a reasonable doubt in the case of the prosecution and the court should also draw adverse inference against the prosecution for not examining the material witnesses. We have already dwelled upon appreciation of evidence at some length in the facts and circumstances of the present case. There is deficiency in the case of the prosecution as it should have proved its case beyond reasonable doubt with the help of these witnesses, which it chose not to produce before the court, despite their availability. 66. This Court in Takhaji Hiraji [(2001) 6 SCC 145 : 2001 SCC (Cri) 1070] clearly stated that material witness is one who would unfold the genesis of the incident or an essential part of the prosecution case and by examining such witnesses the gaps or infirmities in the case of the prosecution could be supplied. If such a witness, without justification, is not examined, inference against the prosecution can be drawn by the court. The fact that the witnesses who were necessary to unfold the narrative of the incident and though not examined, but were cited by the prosecution, certainly raises a suspicion. When the principal witnesses of the prosecution become hostile, greater is the requirement of the prosecution to examine all other material witnesses who could depose in completing the chain by proven facts. This view was reiterated by this Court in Yakub Ismailbhai Patel v. State of Gujarat [(2004) 12 SCC 229 : 2004 SCC (Cri) 196].”

34. The precedent which we have reviewed above would thus indicate that there is no inflexible rule which requires the prosecution to examine a ballistics examiner in every case where a murder is alleged to have been caused with the use of a fire arm. The decision in Mohinder Singh (1953) has since been explained in Gurucharan Singh (1963) by a co-ordinate Bench. Thereafter, the principle which has emerged from the line of authority which we have noticed earlier, is that the failure of the prosecution in a given case, to examine a ballistics expert has to be assessed bearing in mind the overall context of the nature of the evidence which is available. When direct evidence of an unimpeachable character is available and the nature of injuries is consistent with the direct evidence, the examination of a ballistics expert need not be insisted upon as a condition to the prosecution proving its case.

On the other hand, where direct evidence is not available or there is doubt in regard to the nature of that evidence, the failure to examine the ballistic examiner would assume significance. In the present case, the weapons of offence were alleged to have been recovered in the context of the investigation in another FIR (FIR No.311 dated 19 May 2006). The weapons were marked as W/1 and W/2 in that case. The third FSL report arising out of the investigation in FIR No. 781 in the present case does not deal with weapon W/1 at all. Moreover, as we have noted earlier, the third FSL report wrongly attributes weapon W/2 to accused Rajesh alias Sarkari. Whether or not weapon W/2 had been made available to the ballistics examiner was a matter which could have been explained if the prosecution were to lead his evidence. The prosecution cited a ballistics examiner as a witness and yet, did not lead his evidence.

This must be juxtaposed in light of the fact that the eye-witness account of PW4 and PW5 is not free from doubt. We have also analysed the evidence of PW4 and PW5 and have noted that there is a grave element of doubt as to whether they were witnesses at the scene of occurrence. In this context, the Court must therefore hold that the discrepancies which have been noticed in the FSL report could have best been explained by the authors of FSL reports both in FIR No. 311/2006 and FIR No. 781/2006. This not having been done, the accused would, in our view, be entitled to the benefit of doubt.

35. The appellants have urged that PW4 was not an eye-witness as he had deposed that Sandeep was fired at from a distance of 4-5 feet which is not supported by the medical evidence. They urge that the blackening of a few firearm injuries on the deceased’s body is conclusive proof that the firing must have been done from a closer distance, which RAJESH @ could be less than 2 feet.16 Since the depositions of PW4 and PW5 suffer from several material contradictions and improvements; and the non-examination of the ballistics expert in light of serious controversies in the FSL reports has cast a shadow on the prosecution’s story, we need not deal with the additional argument on blackening of injuries. Refusal to undergo Test Identification Parade17

36. The prosecution has submitted that an adverse inference should be drawn against the appellants for refusing to submit themselves to a TIP. Before we deal with the circumstances in which the appellants declined a TIP, it becomes essential to scrutinize the precedent from this Court bearing on the subject. A line of precedent of this Court has dwelt on the purpose of conducting a TIP, the source of the authority of the investigator to do so, the manner in which these proceedings should be conducted, the weight to be ascribed to identification in the course of a TIP and the circumstances in which an adverse inference can be drawn against the accused who refuses to undergo the process. The principles which have emerged from the precedents of this Court can be summarized as follows: (i) The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source.

An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eye-witness to the crime; (ii) There is no specific provision either in the CrPC or the Indian Evidence Act, 187218 which lends statutory authority to an identification parade. Identification parades belong to the stage of the investigation of crime and there is no provision which compels the investigating agency to hold or confers a right on the accused to claim a TIP; (iii) Identification parades are governed in that context by the provision of Section 162 of the CrPC; 16 Relies on (2016) 2 SCC 607 17 TIP 18 Evidence Act (iv) A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held; (v) The identification of the accused in court constitutes substantive evidence; (vi) Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act; (vii) A TIP may lend corroboration to the identification of the witness in court, if so required; (viii) As a rule of prudence, the court would, generally speaking, look for corroboration of the witness’ identification of the accused in court, in the form of earlier identification proceedings.

The rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration; (ix) Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible; (x) The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case; (xi) Identification of the accused in a TIP or in court is not essential in every case where guilt is established on the basis of circumstances which lend assurance to the nature and the quality of the evidence; and (xii) The court of fact may, in the context and circumstances of each case, determine whether an adverse inference should be drawn against the accused for refusing to participate in a TIP. However, the court would look for corroborating material of a substantial nature before it enters a finding in regard to the guilt of the accused.

37. These principles have evolved over a period of time and emanate from the following decisions: RAJESH @ 1. Matru v. State of U.P. [(1971) 2 SCC 75 : 1971 SCC (Cri) 391] 2. Santokh Singh v. Izhar Hussain [(1973) 2 SCC 406 : 1973 SCC (Cri) 828] 3. Malkhansingh v. State of M.P. [(2003) 5 SCC 746 : 2003 SCC (Cri) 1247] 4. Visveswaran v. State [(2003) 6 SCC 73] 5. Munshi Singh Gautam v. State of M.P. [(2005) 9 SCC 631] 6. Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1], 7. Ashwani Kumar and Ors. v. State of Punjab (2015) 6 SCC 308. 8. Mukesh and Ors. v. State for NCT of Delhi and Ors. AIR 2017 SC 2161.

38. In the backdrop of these principles, it would be necessary to scrutinize the evidence in the present case. PW4 in the course of his cross examination stated that the deceased had been facing trial in 2-3 cases and that he was a surety for his son. He claimed to be ignorant of the fact that the deceased was a co- accused with Rajesh alias Sarkari in a criminal case arising out of FIR No. 341/2001, under Sections 454 and 380 of the IPC at Police Station Civil Lines, Rohtak, inspite of being the deceased’s surety in the same. Nor did he know whether both of them had been arrested in the case arising out of FIR No. 341 on 24 June 2001. Similarly, PW5, during the course of his cross-examination, professed that he did not know whether the deceased was the co-accused with Rajesh alias Sarkari in the case arising out of FIR No. 341. But immediately thereafter a suggestion was put to him, which he accepted, that he and his father (PW4) used to go to the court when his brother– the deceased Sandeep – and the present accused Rajesh alias Sarkari were being produced in the court on various dates of hearings. He denied the suggestion that PW4 would visit on every date of hearing in court. When PW5 was questioned during the course of cross- examination on whether he had seen the photographs of the accused Rajesh in the newspapers, he said: “I have never seen the photographs of accused Rajesh alias Sarkari in the newspapers. The photos of this accused must have been published in the newspapers so many times but I have never seen his photographs in the newspaper. I hate the face of Rajesh alias Sarkari and due to this reason, I did not see his photograph in the newspaper’’.

39. Learned Counsel appearing on behalf of the State has sought to urge that out of all the three publications which were proved in the course of the evidence, only one contained the names of the accused. However, the central point in this case is whether on the basis of significant aspects which have emerged during the course of cross-examination of PW4 and PW5, an adverse inference should be drawn against the appellants for having refused to undergo a TIP. The evidence on the record indicates that not only did the deceased have several criminal cases against him, some of which had ended in acquittal on account of a compromise, but that one of the appellants, Rajesh alias Sarkari, and the deceased were co-accused in a case arising out of FIR No. 341 dated 23 June 2001 under Sections 454 and 380 of the IPC at Police Station Civil Lines, Rohtak. Evidently both of them had been arrested in connection with the case, which is why PW5 deposed that his father PW4 used to go to court when Sandeep and Rajesh were being produced on various dates of hearing.

PW4 also stated that he has stood surety for his son in various criminal cases. In this backdrop, the contention of the appellants that the refusal to undergo a TIP is borne out by the fact that Sandeep and Rajesh were known to each other prior to the occurrence and that PW4, who is a prime eye-witness, had seen Rajesh when he would attend the court during the course of the hearings, cannot be brushed aside. Consequently, in a case, such as the present, the Court would be circumspect about drawing an adverse inference from the facts, as they have emerged. In any event, as we have noticed, the identification in the course of a TIP is intended to lend assurance to the identity of the accused. The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade. In the present case, we have already indicated the presence of the alleged eye- witnesses PW4 and PW5 at the scene of the occurrence is seriously in doubt.

The ballistics evidence connecting the empty cartridges and the bullets recovered from the body of the deceased with an alleged weapon of offence is contradictory and suffers from serious infirmities. RAJESH @ Hence, in this backdrop, a refusal to undergo a TIP assumes secondary importance, if at all, and cannot survive independently in the absence of it being a substantive piece of evidence.

40. For the above reasons, we have arrived at the conclusion that the prosecution has failed to establish its case beyond reasonable doubt. The appellants are, hence, entitled to the benefit of doubt and are acquitted of the offence with which they have been charged. The Court is apprised of the fact that the appellants have undergone over 12 years of imprisonment. Consequent on the present judgment acquitting the appellants, they shall be released and their bail bonds be cancelled unless they are wanted in connection with any other case. The appeal is allowed in the above terms.

41. Pending application(s), if any, shall stand disposed of. Ankit Gyan Appeal allowed.