Full Judgment Text
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CASE NO.:
Appeal (crl.) 425 of 1996
PETITIONER:
THAMAN KUMAR
RESPONDENT:
STATE OF UNION TERRITORY OF CHANDIGARH
DATE OF JUDGMENT: 06/05/2003
BENCH:
S. RAJENDRA BABU & G.P. MATHUR
JUDGMENT:
JUDGMENT
2003 (3) SCR 1190
The Judgment of the Court was delivered by
G.P. MATHUR, J. These appeals under Section 2 of Supreme Court (Enlargement
of Criminal Appellate Jurisdiction) Act, 1970 have been preferred against
the judgment and order dated 27.3.1996 of High Court of Punjab and Haryana
at Chandigarh by which the appeal preferred by the State was allowed and
the judgment of acquittal passed by the learned Sessions Judge, Chandigarh
was set aside and the appellants were convicted under Section 302 read with
Section 34 IPC and were sentenced to imprisonment for life and a fine of
Rs. 2,000 each and in default to undergo Six months R1.
The case of the prosecution in brief is that the appellant Ashok Kumar (A-
l) is owner of house no. 138 in Sector 35, Chandigarh which had been
converted into a guest house known as Friends Guest House .Thaman Kumar
(A-2) and Rajesh Singh (A-3) were employed as servants in the aforesaid
guest house. The deceased Bhanwar Singh was a rickshaw puller and he used
to bring customers to the guest house for which Ashok Kumar (A-l) used to
Pay him commission. Sometimes he used to sleep in the garage of the guest
house. A considerable amount towards commission, it is alleged, had fallen
due regarding which he made a demand in the night of 23.12.1989 and a
dispute took place. At about 12.30 p.m. in the night A-2 and A-3
strangulated Bhanwar Singh by tying a chadar which had been rolled in the
shape of a rope around his neck and pulling it from the two ends. At that
time, A-l sat over the chest of the deceased and had caught his both the
hands firmly so that he may not be in a position to offer any resistance.
Constables Ram Mehar and Suresh Kumar, who had been assigned patrol duty in
Sector 35 were passing in front of house no. 138 and heard shrieks raised
by deceased Bhanwar Singh. They entered the house after opening the front
gate and saw the incident happening in the grange in which electric light
was on and the doors were slightly open. They caught hold of A-2 and A-3 on
the spot but A-l managed to escape by scaling the rear boundary wall.
Suresh Kumar then gave information about the incident at about 1.05 hours
to Police Post in Sector 36 by telephone. Surender Kumar, SI, then came to
the spot, took stock of the situation and recorded the statement of Ram
Mehar, Constable. He then gave a Rukka to Suresh Kumar, Constable which he
took to the Police Station in Sector 39 on the basis of which an FIR was
registered at 02.20 a.m. on 24.12.1989. Surender Kumar, SI, also held
inquest on the body of the deceased Bhanwar Singh. The body was sealed and
was sent for post-mortem examination. After completing investigation, he
submitted charge-sheet against all the three accused.
The Judicial Magistrate, First Class, Chandigarh by his order dated
16.4.1990 committed the case to the Court of Sessions. The learned Sessions
Judge framed charge under Section 302 read with Section 34 IPC against all
the three accused who denied the case of the prosecution and claimed to be
tried. The prosecution in support of its case examined 11 witnesses
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including 2 eye-witnesses and filed some documentary evidence. Ashok Kumar
(A-l) in his statement under Section 313 Cr.P.C. denied the case of the
prosecution, but admitted that the guest house in Kothi No. 138, Sector 35
was run by his brother Om Prakash and he also looked after the same. He
stated that when he was sleeping in his house, Rajesh Singh (A-3) came
there at about 12.30 in the night and informed him about the presence of a
dead body in the garage of the guest house. He then went to the guest house
and after seeing the dead body, he informed the police, which came there
and arrested him and other co-accused or the spot at that very time in
spite of their protests. Thaman Kumar (A-2) also denied the case of the
prosecution and stated that he and Rajesh Singh were working in the guest
house and used to sleep in a room, which was situate on the back side of
the garage. Rajesh Singh awoke him at about mid-night and told that a dead
body was lying in the garage. Rajesh Singh then went to inform the owner of
the guest house and thereafter A-l came there, who informed the police. The
Police then came to the spot and arrested all the three accused. Rajesh
Singh (A-3) also gave a similar statement.
The learned Sessions Judge disbelieved the case of the prosecution and
acquitted all three accused by his judgment and order dated 22.8.1990.
Feeling aggrieved, the State of Union Territory at Chandigarh preferred an
appeal which was allowed by the High Court by the judgment and order dated
27.3.1996 and all the three accused were convicted and sentenced as
mentioned earlier.
We have heard Shri Sushil Kumar, learned Senior Advocate for A-l, Shri M.N.
Rao, learned Senior Advocate for A-2 and A-3 and Ms. Kamini Jaiswal,
Advocate for the State and have gone through the entire evidence on record.
Before we deal with the contentions raised by learned counsel for the
appellants, it will be convenient to take note of the evidence which has
been adduced by the prosecution.
PW.4 Ram Mehar, Constable, has stated that he along with Constable Suresh
Kumar had been assigned patrol duty in Sector 35 in the night intervening
23rd and 24th December, 1989. He left the Police Post at 10.00 p.m. and
after going around the market in Sector 35 and 35-B, they were passing near
Kothi No. 13i! in Sector 35 at about 12.30 in the night (00.30 hours on
24.12.1989). After hearing shrieks from inside the Kothi, both of them
entered the compound after opening the front gate and saw that in the
garage, where there was electric light, two persons namely A-2 and A-3 were
strangulating Bhanwar Singh by tying a bed sheet around his neck and A-l
was sitting on his chest and was pressing his arms. After seeing the police
personnel, A-l ran away by scaling the rear boundary wall. A-2 and also A-3
tried to run away but they were caught on the spot. He gave information
about the incident to Police Post in Sector 36 by telephone. Some time
thereafter, PW.l 1 Surender Kumar, SI, came there, who recorded his
statement, which is Ex.PH. He was given a Rukka by PW.l 1 which he carried
to Police Station, Sector 39 and on the basis of the same, the FIR of the
occurrence was formally registered at 2.20 a.m. on 24.12.1989. The other
eye-witness examined by the prosecution is PW 5, Suresh Kumar, Constable.
He has given exactly similar statement and has corroborated the version
given by PW.4 Ram Mehar Constable.
PW.l Dr. P.N. Gupta of General Hospital Sector 16, examined accused Thaman
Kumar (A-2) on 24.12.1989 and found the following injury on his person:
"Reddish contusion situated on ulna aspect of right hand (inner). The
contusion size was diffused of about 5 cm x 2 cm.
Nature of injury was simple, caused by blunt weapon and probable duration
was within six hours."
After seeing the ’Chadar’ Ex.P1, the witness stated that the possibility of
the injury having been caused as a result of pulling of the same could not
be ruled out. The post-mortem on the body of the deceased Bhanwar Singh was
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conducted jointly by Dr. A.S. Gill, Senior Medical Officer and PW.2 Dr. G.
Dewan Medical Officer, General Hospital Sector 16. The following ante-
mortem injury was found on the body of the deceased :
"Ligature mark brown coloured encircling whole of neck measuring 39 cms,
all around the neck 1\2 cms. on the sides and back and 2 cms. in front of
the neck anteriorly placed on the thyroid cartilage horizontally margins
were irregular, ecchymosed and base of ligature was dry and parchment like
and membranous. On cut Section there were multiple ecchymotic spots on
subcutaneous tissue and muscles. Thyroid cartilages was broken cricoid
cartilage was also broken.
Larynx and trachea-Mucosa of larynx and treachae were conjested and showed
multiple petichial spots. Both right and left lungs were conjested. Stomach
was empty and healthy."
In the opinion of the Doctors, death was caused due to asphyxia caused by
strangulation. The post-mortem report has been proved by PW.2 Dr. G. Dewan.
PW.7 Sardara Singh, who is the brother of the deceased, was examined in
order to prove the motive for the commission of the crime, but he did not
support the case of the prosecution and turned hostile. He denied to have
given any statement to the police to the effect that the deceased Bhanwar
Singh used to take persons to the guest house for which he was paid
commission by the owners and that A-l owed him Rs. 42,000 towards the
aforesaid amount. PW.5 Mohinder Singh, Head Constable, Police Post, Sector
36 proved the extracts of Daily Diary Report (DDR) of 23rd and 24th
December, 1989, which have been marked as Ex. PK, EX.PL, EX. PM and EX.PN.
PW.9 Jasbir Singh in-charge of Police Post, Sector 36, deposed that he had
gone to the spo: at 3.30 a.m. on 24.12.1989 and at that time PW. 11,
Surender Kumar, SI, was present and was investigating the case. He further
deposed that A-l was produced by Gurnam Singh, a member of village
Panchayat, on 24.12.1989 and he was taken into custody. PW. 11 Surender
Kumar, SI in police Post Sector 36 deposed that he received a telephonic
message at about 1.05 a.m. on 24.12.1989 from PW.4, Ram Mehar, Constable
from Kothi No. 138, Sector 35, and thereafter the rushed there along with
some other constables. He found the dead body of Bhanwar Singh lying on the
floor of the garage and a rolled over bed sheet was lying near the head of
the dead body. A-2 and A-3 were also present on the spot in the custody of
the two constables. He then recorded the statement of PW.4, Ram Mehar,
which was read over to him and after he has signed the same, it was sent to
the Police Station, Sector 39 and a formal FIR was recorded. He has further
deposed that he held inquest on the body of the deceased, took the bed
sheet and other articles into his possession and sent the body of Bhanwar
Singh for post-mortem examinatior. He also sent A-2 for medical examination
as there was an injury on his hand. He has given details of the various
steps taken by him during the investigation of the case. PW. 10, KIP Singh,
SHO of Police Station, Sector 39, has deposed that after receiving
information, he went to the Friends Guest House in Sector 35 and found that
Surender Kumar, SI was already present there and was conducting
investigation of the case. He has further deposed that after completing the
investigation he prepared the charge-sheet and submitted the same. PW. 3
Jaswant Singh is draftsman, who prepared the site plan, Ex. PG on the
pointing out of Surender Kumar and has proved the same.
According to the statements of A-2 and A-3 under Section 313 Cr.P.C. both
were working in the guest house and both of them used to sleep in a room on
the back side of the garage. At about mid-night A-3 woke up and after
finding that a dead body was lying in the garage informed A-2 about it and
also went to inform the owner of the guest house. Shortly thereafter, A-1
came to the guest house and informed the police and it was thereafter that
the police came to the spot and arrested all of them. A-l has also stated
that after getting information about the presence of a dead body in the
garage of the guest house from A-3 he came there at 12.30 in the night and
informed the police, which arrived on the scene and arrested all of them.
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Thus, A-2 and A-3 admit their presence and further all the three accused
also admit the presence of the dead body of deceased Bhanwar Singh in the
garage of the guest house. But, according to their version, the police
arrived at the scene on the information given by A-l. The version of
prosecution, however, is that PW.4 Ram Mehar and PW.5 Suresh Kumar heard
some shrieks when they were passing in front of the guest house (Kothi No.
138) and they saw the accused strangulating the deceased Bhanwar Singh in
the garage. It is to be examined as to which of the two versions is
correct. Ex. PK is copy of entry no.45 made at 9.30 p.m. on 23.12.1989 in
DDR of Police Post Sector 36 and it records that Constables Ram Mehar and
Suresh Kumar had been deputed for night patrol duty in Sector 35. Ex.PL is
the copy of entry made at 1.05 a.m. on 24.12.1989 in DDR of Police Post
Sector 36 and it records that Constable Ram Mehar had given information on
telephone that some fight was going on and three persons had assaulted a
man in Kothi No. 138 in Sector 35. After receiving this information
Surender Kumar, SI. along with some other police personnel were sent to the
place of occurrence. PW. 4 has stated that he searched for a telephone in
the guest house and it took him about 20-25 minutes to find the same as
rooms in the guest house were bolted from inside. The entry made in DDR of
Police Post Sector 36 at 1.05 a.m. corroborates the testimony of PW 4 and
P.W5. It may be noticed that at the time when this information was given by
PW. 4, other police personnel were not present on the spot as PW. 11
Surender Kumar, SI came there subsequently. The two constables could not
have cooked up a false story regarding three persons assaulting a man in
the short period which elapsed between their reaching there and in giving
telephonic information at about 1.05 a.m. Ex. PM is copy of the entry made
at 2.20 a.m. on 24.12 1989 in DDR No. 52 of Police Station Sector 39
regarding lodging of the FIR of the incident on the basis of which a case
was registered as Crime No. 303 of 1989 under section 302 read with Section
34 I PC. Ex. PH/12 is the copy of the FIR and it bears an endorsement that
a copy of the same was received by the Ilaqa Magistrate at 4.00 a.m. on
24.12.1989. These documents have been proved by PW. 8 Mohinder Singh. The
statement of PW. 2 Dr. G. Dewan shows that the dead body was deposited in
the mortuary at 4.15 a.m. on 24.12.1989. The fact that the copy of the FIR
was received by the llaqa Magistrate at 4.00 a.m. conclusively establishes
that the FIR containing full details of the prosecution version of the
incident had been actually lodged much earlier. The documentary evidence
and also the promptness with which the FIR was lodged, its copy was sent to
llaqa Magistrate and the body was sent to the mortuary lends great
assurance to the truthfulness of the prosecution case. The medical evidence
on record also corroborates the testimony of the eye-witnesses. Surencer
Kumar, SI had noticed an injury on the hand of A-2. PW.l Dr. P.N. Gupta,
examined A-2 on 24.12.1989 and found a reddish contusion 5 cm x 2 cm in
size on the unla aspect of right hand (inner) and in his opinion, possib
lity of the aforesaid injury been caused due to pulling of bed sheet could
not be ruled out. The post-mortem report of deceased Bhanwar Singh show;
that there was a ligature mark encircling whole of neck measuring 39 cms.
all rounds the neck. The doctors who conducted the post-moterm examination
clearly opined that the death occurred due to asphyxia caused by
strangulation. Thus, the eye-witness account finds complete corroboration
from thus medical evidence on record.
The accused have lead no evidence in support of their defence. Even
otherwise, the plea taken by them in their statement under Section 313
Cr.P.C. appears to be highly improbable and unnatural. It has come in
evidence that the distance of the garage is 14.70 meters from the front
gate which comes to nearly 48 ft. It does not appeal to reason that if the
actual commission of crime, namely, strangulation of the deceased had not
been seen by anyone, why would the assailants take the risk of being seen
and apprehended while carrying the dead body and placing it in the garage.
The assailants would have left the body where the crime was committed and
would have slipped away. Therefore, the defence case that some one else
placed the dead body in the garage of the kothi is not at all worthy of
belief. To our mind, such a defence has been taken by the accused only for
the purpose of explaining the presence of the body of deceased Bhanwar
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Singh in the garage and the arrest of A-2 and A-3 on the spot. It is
important to note that much less producing any evidence, the accused-
appellants have not even given any suggestion in the cross-examination of
the eye-witnesses (PW.4 and PW.5) as to why they had given false statement
to implicate them in a serious case like murder. There is not even an iota
of evidence on the record which may even remotely suggest that PW.4 or PW.5
had any grouse against the appellants or any cause ;o implicate them
falsely. In our opinion the evidence on record clearly establishes the case
of the prosecution against the appellants beyond any shadow of doubt.
Shri Sushil Kumar, learned Senior Advocate has strenuously urged that the
injury found on the body of the deceased could not have been caused in a
manner deposed to by the eye-witnesses and thus there is a conflict between
the medical evidence and ocular testimony. At the time when the statement
of PW.2 Dr. G. Dewan was recorded, the chadar was produced in Court and the
same was converted into a rope by twisting and according to the witness,
the thickness of the same in the middle was about 6/7 cms. Learned counsel
has submitted that the ligature mark on the neck of the deceased was 1/2 cm
in width and this was not possible from a chadar, the thickness of which
after twisting and converting into a rope came to about 6/7 cms. We are
unable to accept the submission made. It has come in evidence that the
chadar was about 1-1/2 meter long and 1 meter wide. This shows that in fact
it was not a full chadar or a bed sheet but was a piece of cloth, which is
sometimes used by ordinary people like rickshaw pullers to cover their face
during winters especially in night. If the said piece of cloth is converted
into a rope by rolling it over, its diameter will very much depend upon the
fact as to how strongly and tightly it is rolled over. If a piece of cloth
which is only one meter in width is tightly rolled over in the shape of a
rope, its diameter will be much less than 6/7 cms. and the ligature mark on
the neck of the deceased would be of still lesser dimension.
In Modi’s Medical Jurisprudence (Twenty-Second Edition) in the Chapter
"Deaths From Asphyxia" while dealing with the topic of "Post-mortem
Appearance" especially regarding "Ligature Mark", the learned author-has
stated as under on page 263:
"Ligature mark is a well-defined and slightly depressed mark corresponding
roughly to the breadth of the ligature, usually situated low down in the
neck below the thyroid cartilage, and encircling the neck horizontally and
completely.
The pattern of the ligature may also be seen. Very often, there are
abrasions and ecchymoses in the skin adjacent to the marks. In some cases,
the mark in the neck may not be present at all, or may be very slight, if
the ligature used is soft and yielding like a stocking or scarf, and if it
is removed soon after death.................."
In the present case, the cotton cloth used for strangulating was removed
immediately as the witnesses reached the spot and caught hold of the
assailants. In such circumstances the width of the ligature mark could be
much smaller and need not tally with the diameter of the rope.
The conflict between oral testimony and medical evidence can be of varied
dimensions and shapes. There may be a case where there is total absence of
injuries which are normally caused by a particular weapon. There is another
category where though the injuries found on the victim are of the type
which are possible by the weapon of assault, but the size and dimension of
the injuries do not exactly tally with the size and dimension of the
weapon. The third category can be where the injuries found on the victim
are such which are normally caused by the weapon of assault but they are
not found on that portion of the body where they are deposed to have been
caused by the eye-witnesses. The same kind of inference cannot be drawn in
the three categories of apparent conflict in oral and medical evidence
enumerated above. In the first category t may legitimately be inferred that
the oral evidence regarding assault having been made from a particular
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weapon is not truthful. However, in the second and third category no such
inference can straightway be drawn. The manner and method of assault, the
position of the victim, the resistance offered by him, the opportunity
available to the witnesses to see the occurrence like their distance,
presence of light and many other similar factors will have to be taken into
consideration in judging the reliability of ocular testimony.
The width of the ligature mark would very much depend upon the type of the
cloth, how tightly and strongly it was rolled over and was converted into a
rope and how soon it was removed. In Punjab Singh v. Stale of Haryana
[1984] Supp SCC 233 it was held that if direct evidence is satisfactory and
reliable, the same cannot be rejected on hypothetical medical evidence.
Again in Anil Rai v. Mate of Bihar [2001] 7 SCC 318 it was held that if
medical evidence when properly read shows two alternative possibilities but
not any inconsistency, the one consistent with the reliable and
satisfactory statements of the eye-witnesses has to be accepted. We are in
respectful agreement with the view taken in the above cases. We are,
therefore, clearly of the opinion that in the case in hand there is no
inconsistency between the testimony of the eye-witnesses and the medical
evidence and the case of the prosecution does not suffer from any infirmity
on that account.
Shri Sushil Kumar has drawn our attention to certain findings recorded
by’the learned Sessions Judge and has urged that he had rightly given
benefit of doubt to the appellants and the High Court committed manifest
error of law in reversing the aforesaid findings and convicting and
sentencing the appellants while hearing an appeal against acquittal. The
learned counsel has urged that the prosecution has failed to prove any
motive on the part of the appellants to commit the crime. It is true that
the only witness examined on the point of motive namely PW.7 Sardara Singh,
who is brother of the deceased, turned hostile and did not support the
prosecution case. In his statement under Section 161 Cr.P.C. he had said
that the deceased used to get commission for bringing customers to the
guest house and he owed about Rs. 42,000 in that account and some dispute
had taken place with the owner when he had demanded his money. However, in
his statement in Court he denied to have given any such statement. There is
no such principle or rule of law that where the prosecution fails to prove
the motive for commission of the crime, it must necessarily result in
acquittal of the accused. Where the ocular evidence is found to be
trustworthy and reliable and finds corroboration from the medical evidence,
a finding of guilt can safely be recorded even if the motive for the
commission of the crime has not been proved. In State of Himachal Pradesh
v. Jeet Singh, [1999] 4 SCC 370 it was held that no doubt it is a sound
principle to remember that every criminal act was done with a motive but
its corollary is not that no offence was committed if the prosecution
failed to prove the precise motive of the accused to commit it, as it is
almost an impossibility for the prosecution to unreveal the full dimension
of the mental disposition of an offender towards the person whom he
offended. In Nathuni Yadav and Ors. v. State of Bihar and Anr:, [1998] 9
SCC 238 it was held that motive for doing a criminal act is generally a
difficult area of prosecution as one cannot normally see into the mind of
another. Motive is the emotion which impels a man to do a particular act
and such impelling cause need not necessarily be proportionately grave to
do grave crimes. It was further held that many a murders have been
committed without any known or prominent motive and it is quite possible
that the aforesaid impelling factor would remain undiscoverable. In our
opinion, in the facts and circumstances of the case, the absence of any
evidence on the point of motive cannot have any such impact so as to
discard the other reliable evidence available on record which unerringly
establishes the guilt of the accused.
Learned counsel has also submitted that the roaster of duty of PW.4 and
PW.5 was withheld by the prosecution and, therefore, it is not possible to
accept their version that they were on patrol duty. In our opinion, the
contention raised has hardly any merit in view of the fact that an entry
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was made at 9.40 p.m. on 23.12.1989 in DDR No. 45 of Police Post Sector 36
to the effect that the aforesaid Constables had been assigned night patrol
duty in Sector 35. The other submission made is that in the first
telephonic message given to the police post at 1.05 a.m. the names of the
assailants were not mentioned. It is true that Ex. PL which is copy of
entry made at 1.05 a.m. in DDR No. 52 of Police Post Sector 36, the names
of the assailants were not mentioned and only the fact that three persons
were assaulting a person was recorded. PW. 4 has stated that he gave
telephonic message about the incident at Police Post Sector 36 and made a
request for sending some police force. The entry in DDR was made by
Surender Kumar, SI that after receiving the aforesaid information he is
proceeding to the spot along with some other police constables. This was
not a First Information Report of the incident but merely an entry made
regarding the departure of the police personnel to the place of occurrence
and, therefore, the non-mention of the names of the assailants in this
entry cannot have any bearing. The third submission of learned counsel is
that having regard to the.height of rear wall and fencing A-l could not
have managed to run away by scaling the same and the prosecution case in
that regard cannot be believed. PW.3 Jaswant Singh, draftsman has stated
that the lock boundary wall was 3 feet and 7-1/2 inch high and, thereafter,
there was a barred wire fence which was 1-1/2 meter in height. While
running away it is quite possible that A-l jumped to the other side by
merely scaling over the brick wall without scaling the barred wire fencing.
He was a young man of 25 years in age and scaling over the wall was not a
difficult proposition for him.
Shri M.N. Rao, learned Senior Advocate, who appeared for A-2 and A-3 also
raised the same contentions regarding the alleged conflict in oral and
medical evidence, the non-mention of the names of the accused in the first
telephonic message and absence of motive, which we have already considered.
Having given our careful consideration to the submissions made by learned
counsel for the parties, we are clearly of the opinion that the prosecution
has succeeded in establishing its case against the accused-appellants
beyond any shadow of doubt and the view taken by the learned Sessions Judge
was wholly perverse which was rightly set aside by the High Court. In the
result, :he appeals lack merit and are hereby dismissed. The appellants are
on bail. They shall surrender forthwith to undergo the sentences imposed
upon them. The CJM concerned shall take immediate steps to take the
appellants into custody.