Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
CASE NO.:
Appeal (crl.) 957 of 1998
PETITIONER:
Hem Raj & Ors.
RESPONDENT:
State of Haryana
DATE OF JUDGMENT: 29/03/2005
BENCH:
P.VENKATARAMA REDDI & P.P. NAOLEKAR
JUDGMENT:
JUDGMENT
WITH
CRIMINAL APPEAL NO. 958 OF 1998
P.VENKATARAMA REDDI, J.
The four appellants herein who are brothers faced trial
before the Additional Sessions Judge \026 I, Jind for murdering
one Hemant Kumar at a central place in Safidon town, on
the night of 3.4.1996 at about 8.45 p.m. They were
convicted under Section 302 IPC and sentenced to life
imprisonment. The High Court dismissed the appeals filed
by the accused. Hence, these appeals by special leave.
The following is a brief account of the prosecution case
and other relevant facts :
On the night of 3rd April, 1996, all the accused attacked
Hemant Kumar at Channi Chowk and stabbed him with
knives. As a result of stabbing, he received six injuries out
of which two were in the chest region. The fatal assault by
the four accused was seen by the younger brother of
deceased-PW4, who was returning home from his watch
repair shop. On being informed by a passer-by on a bicycle,
PW4 rushed to the spot and having noticed from a distance
of 30 ft. or so that the attack on the deceased was going on,
he raised an alarm. Hearing the cries, PW5-another relation
of the deceased and one Kapoor Singh who were at a nearby
sweet shop joined PW4. On seeing all of them, the accused
fled. According to PWs 4 and 5, three accused carried
knives and the accused, namely, Kala carried ‘Neja’ (which
resembles knife). The injured person fell down on the spot
and he was taken on a cot to the Civil Hospital, Safidon by
the aforementioned three persons. At the hospital, the
doctor (not examined) declared him dead. The same doctor
sent a rucca (memo) to the Police Station, Safidon at about
9.50 p.m. The Sub-Inspector of Police-PW9 was going on a
jeep by the side of the hospital. The Ward Boy of the
hospital handed over the rucca to him PW9 then came to the
hospital and after sometime, recorded the statement of PW4
at the hospital. He sent the same to the Police Station, on
the basis of which an FIR was recorded at 11.30 p.m., for an
offence under Section 302 read with Section 34 IPC. Copy
was sent to the Judicial Magistrate through a Constable and
it reached him at about 1.00 a.m. In the said statement
given to the police, PW4 named the four accused as the
assailants. PW9 held the inquest over the dead body in the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
hospital and sent the dead body for post-mortem. The
Medical Officer attached to the General Hospital, Jind did the
post-mortem examination at 9.15 a.m. on 4.4.1996 and
prepared the post-mortem report which is Ex.PA. PW9 could
go to the scene of occurrence at about 2.30 a.m. The delay
was for the reason that he tried to stop a reprisal attack by
a mob to set fire to the houses of the accused. He prepared
a site plan. One Gobind Das produced all the four accused
persons involved in the offence in the night of 4.4.1996
before PW9 while he was at Court Road Chowk. They were
arrested and immediately thereafter, the accused Kala
produced a knife (Ex.P1). The total length of that knife was
8 inches inclusive of 4" of handle and the width of the blade
was about 0.2 to 0.3 cms. PW10-Inspector of Police, CIA,
was entrusted with investigation from 6.4.1996 onwards.
He recorded the statements of some witnesses. He applied
for judicial remand of the arrested accused. On the same
day, PW10 took the knife seized from Kala to the Medical
Officer-PW1, who endorsed on the post-mortem report that
the injuries could be inflicted by that knife. On the basis of
his investigation, PW10 found that the accused other than
Kala were innocent. Therefore, in the report under Section
173 Cr.P.C., only Kala was shown as the accused for the
offence punishable under Section 302 IPC. However, all the
four accused persons were committed to Sessions. After
examining the record, the learned Judge found that there
was a prima facie case to proceed against all the accused.
Accordingly, the charge was framed against all the accused
under Section 302 IPC. Curiously, Section 34 was omitted in
the charge. On the basis of the evidence of the eye-
witnesses, namely, PWs 4 and 5, the accused were
convicted under Section 302 IPC.
The motive of the accused is traced to an incident
which had happened one and a half years earlier when the
deceased Hemant Kumar identified the accused as the
persons involved in the kidnapping of the daughter of one
Niranjan Das. However, the motive was held to be not
proved by the trial court. The High Court did not hold to the
contra.
The details of post-mortem examination may be
noticed at this juncture. The following injuries were found
on the body of the deceased:-
(i) Spindle shaped incised wound on left side of chest
just lateral to left nipple 1.5 cm x 1 cm x 4 cm.
The wound cut through skin, costal muscles,
corresponding cut in pleura was present.
(ii) Incised wound (spindle shaped) 3 x 1 x 7 cm on
the left side of chest 5 cm below injury no.1
longitudinally placed, wound cut through shirt,
banian, Costal muscles, 6th and 7th intercostals
space, left lung.
(iii) Incised wound (spindle shaped) 2.5 x 1 cm x 6 cm
obliquely placed on left side of abdomen 5 cm
below the costal margin. The wound cut through
skin muscle, peritoneal membrane and a cut of
1.5 x = x >th of cm. on spleen was present.
(iv) Incised wound 4 cm x 1.5 cm muscle deep on the
posterior lateral aspect of left fore-arm.
(v) Incised spindle shaped wound on upper thigh of
the size of 3 x 1.5 cm x 1cm. 15 cm below iliac
crest.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
(vi) Incised wound 3 cm x 1.5 bone deep on the
palmer aspect of right thumb, bone was fractured.
The learned senior counsel for the appellant contended
that it is a case of blind murder which might not have been
witnessed by anybody and the version of PWs 4 & 5 - the
alleged eye-witnesses and close relations of the deceased is
unnatural and unbelievable. No explanation was
forthcoming for not examining the independent witnesses
who would have been available at the place of occurrence
which is in a busy locality. The scene of offence has not
been established beyond doubt and the time of occurrence,
the time of recording the statement of PW4 and the FIR and
the time of death are all doubtful. Recovery of knife from
the accused Kala is concocted, as held by the trial court. It
is pointed out that the pattern of stab injuries received by
the victim only on one side of the body shows that one or
two persons would have inflicted injuries but not as many as
four. In this context, it is pointed out that the 2nd
investigating officer-PW10, after recording the statements of
certain witnesses thought it fit to file the charge-sheet
against one accused only, namely Kala. However, by the
order of the Sessions Judge, all the four were charged on
the ground that they were named in the FIR. Finally it is
submitted that in the absence of charge under Section 302
IPC read with Section 34, the conviction cannot be sustained
under Section 302 simplicitor. It is then submitted that the
offence does not in any case fall under Section 300 IPC.
The learned counsel appearing for the State as well as
the learned senior counsel appearing for the informant\027PW4
who has been allowed by this Court to intervene have
countered the above arguments. It is contended by them
that even in the absence of specific mention of Section 34
IPC in the charge, the conviction can still be sustained, that
there is nothing to discredit the testimony of PW4 or PW5,
that the arguments relating to ante-timing of the FIR and
the improbability of participation of as many as four accused
are without substance. The injuries being sufficient in the
ordinary course of nature to cause death, all accused are
constructively liable for the offence of murder irrespective of
which accused had inflicted the particular injury. It is
submitted that the concurrent findings of both the Courts
cannot be legally faulted.
The prosecution case rests on the evidence of PWs 4 &
5 who are related to the deceased and who happened to be
chance witnesses. Before scrutinizing this evidence and
testing its credibility, we have to advert to certain features
in the prosecution case which make a dent on the reliability
of the prosecution version. They are discussed hereunder :-
Two days after the incident i.e. on 5.4.1996, the
investigation was entrusted to PW10-Inspector, CIA at the
instance of Superintendent of Police, Jind. PW10 stated in
cross examination that he inspected the place of occurrence
and examined the persons staying near the place of
occurrence and recorded the statements of such persons.
The names of those five persons were given. Then he added
that "from their statements, it was revealed that Hemraj,
Chunnilal and Omprakash were innocent". He further stated
that the investigation done by him was verified by DSP.
Ultimately he filed the final report showing only Kala as the
sole accused. However, as already noticed, all the four
accused mentioned in the FIR were committed to Sessions
and the Sessions Judge framed charge against all of them
under Section 302. PW10 did not choose to give all the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
relevant details of his investigation. However, the version of
this Investigating Officer itself casts a cloud on the reliability
of the prosecution case as unfolded by PWs 4 and 5 that four
accused were involved.
The fact that no independent witness - though
available, was examined and not even an explanation was
sought to be given for not examining such witness is a
serious infirmity in the prosecution case having regard to the
indisputable facts of this case. Amongst the independent
witnesses, Kapur Singh was one, who was very much in the
know of things from the beginning. Kapur singh is alleged to
have been in the company of PW5 at a sweet stall and both
of them after hearing the cries joined PW4 at Channi Chowk.
He was one of those who kept the deceased on a cot and
took the deceased to hospital. He was there in the hospital
by the time the first I.O.-PW9 went to the hospital. The
evidence of the first I.O. reveals that the place of occurrence
was pointed out to him by Kapur Singh. His statement was
also recorded, though not immediately but later. The I.O.
admitted that Kapur Singh was the eye-witness to the
occurrence. In the FIR, he is referred to as the eye-witness
along with PW5. Kapur Singh was present in the Court on
6.10.1997. The Addl. Public Prosecutor ‘gave up’ the
examination of this witness stating that it was unnecessary.
The trial court commented that he was won over by the
accused and therefore he was not examined. There is no
factual basis for this comment. The approach of the High
Court is different. The High Court commented that his
examination would only amount to ‘proliferation’ of direct
evidence. But, we are unable to endorse this view of the
High Court. To put a seal of approval on the prosecution’s
omission to examine a material witness who is unrelated to
the deceased and who is supposed to know every detail of
the incident on the ground of ‘proliferation’ of direct
evidence is not a correct approach. The corroboration of the
testimony of the related witnesses-PWs 4 & 5 by a known
independent eye-witness could have strengthened the
prosecution case, especially when the incident took place in
a public place.
Non-examination of independent witness by itself may
not give rise to adverse inference against the prosecution.
However, when the evidence of the alleged eye-witnesses
raise serious doubts on the point of their presence at the
time of actual occurrence, the unexplained omission to
examine the independent witness-Kapur Singh, would
assume significance. This Court pointed out in Takhaji
Hiraji Vs. Thakore Kubersing Chamansing & Others
[(2001 6 SCC 145] \026
"\005\005\005\005\005\005\005.if already overwhelming evidence
is available and examination of other witnesses
would only be a repetition or duplication of the
evidence already adduced, non-examination of
such other witnesses may not be material. In
such a case, the court ought to scrutinize the
worth of the evidence adduced. The Court of
facts must ask itself \026 whether in the facts and
circumstances of the case, it was necessary to
examine such other witness, and if so, whether
such witness was available to be examined and
yet was being withheld from the Court. If the
answer be positive then only a question of
drawing an adverse inference may arise. If the
witnesses already examined are reliable and
the testimony coming from their mouth is
unimpeachable the Court can safely act upon it,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
uninfluenced by the factum of non-examination
of other witnesses. In the present case we find
that there are at least 5 witnesses whose
presence at the place of the incident and whose
having seen the incident cannot be doubted at
all. It is not even suggested by the defence
that they were not present at the place of the
incident and did not participate therein."
One more aspect which deserves notice is that at the
alleged scene of offence, no blood-stains were found by the
I.O., though he made a search. The surmise of the High
Court that the blood stains at the public place would have
disappeared in view of the time gap between the incident
and the I.O.’s inspection may not be correct, especially, in
view of the fact that it is a metal road, as shown by PW8 in
the site plan and it was night time. It is difficult to believe
that traces of blood would fade out by the time of the visit of
I.O. This is one of the circumstances that has to be kept in
mind while appreciating the prosecution case.
There is also a doubt regarding the time when the first
information was received at the police station. The FIR was
registered at 11.35 p.m. on the basis of the statement of
PW4 recorded at 11.15 p.m. at the hospital. However, as
per the evidence of PW6 (Police Constable), the information
regarding the occurrence was received in the police station
at 10.30 or 10.45 p.m. and thereafter the SI-PW9
accompanied by him and other police personnel went to the
hospital. Apart from the fact that his evidence goes contrary
to the version of PW9 that on receiving the death intimation
at the hospital gate, he went straight to the hospital and an
hour later he recorded the statement of PW4, a doubt is cast
on the time and source of first information. If the
information was received at the police station at 10.30 p.m.
why was it suppressed? What are the details of such
information? These are the questions which remain
unanswered.
No weapons were recovered from any of the accused.
The recovery of knife from Kala at the time of surrender has
been rightly disbelieved by the trial Court.
All the above factors would not have assumed much
importance if the evidence of PWs 4 & 5 could be accepted
without raising an eye-brow. However, two views are
possible on the point whether these persons had really
witnessed the attack. There is every reason to think that
PW4, on being informed by a way-farer, would have reached
near the scene of offence almost after the attack was over.
The possibility of seeing all the accused attacking the
deceased with the knives and ’Neja’ from a distance of 30
feet or more, that too, in the night time, is rather doubtful.
It is not safe to rely on his version that he had seen the
accused with the particular weapons in their hands. In this
context, it may be noted that PW4 did not mention the
distance from which he observed the attack. In the site plan
drawn to scale, the distance of the spot from where PW4
observed the incident was given as 30 ft. It was night time-
almost 9.00 p.m. and most of the shops were closed, as
seen from the evidence of PW4. PW4 or any other witness
did not give any details about the lighting in the vicinity.
However, from the site plan drawn by PW8, there was a
tube-light attached to the electrical pole situated at 20 feet
distance. It would have been difficult for PW4 at the night
time to notice each of the accused carrying a particular type
of weapon, that too a small weapon like knife. But, PW4
came forward with the version that all the accused except
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
one, were carrying knives and the other was carrying ‘Neja’.
Thus he claims to have seen so clearly as to distinguish
between a knife and ‘Neja’ at that juncture, when the attack
would have been almost over and PW4 was trying to evoke
the attention of the people around. It is difficult to accept
the version of PW4 of having seen the weapon in the hand of
each of accused and the nature of the weapon. The
reference to ’Neja’ in particular appears to have been
introduced for explaining the injuries on the body of the
deceased. It seems to us that the picture given by PW4, as
if he had seen each of them with the knife or ‘Neja’ seems
to be an embellishment developed with the idea of
implicating all the brothers as the accused. His further
version that PW5 having heard his cries joined him and
witnessed the attack seems to be a story invented for the
purpose of introducing another eye-witness to corroborate
his version. The possibility of PW5 who was at a sweet shop
hearing his cries, joining PW4 and then observing the
incident appears to be highly improbable. If PW5 had
already been there near Channi Chowk for purchasing
sweets, he would have noticed the commotion caused by the
attack and would have seen the assailants even before PW4
arrived at the spot. But his story is different. Another factor
which casts a doubt on the evidence of PWs 4 & 5 is that
there were no blood stains on their clothes, though
allegedly, they placed the deceased on cot and carried him
to the hospital. Moreover, soon after his brother was
declared dead, PW4 did not go to the police station which
was quite close to the hospital to lodge a report. That is not
a natural course of conduct. It is on account of these
doubtful features in the evidence of PW4 that the factum of
non-examination of independent witness, though available,
assumes importance.
On a consideration of the evidence on record and the
broad probabilities, we come to an irresistible inference that
there is a reasonable possibility of some accused who were
not involved in the attack having been convicted. It is
difficult to sift the grain from the chaff. The High Court
missed to notice certain crucial aspects adverted to above. It
is a case in which benefit of doubt has to be accorded to the
appellants. It is unnecessary to consider the question
whether in the absence of charge under Section 34 IPC, the
conviction can be sustained.
In the result, the appeals are allowed and the
conviction and sentence of all the appellants is set aside.