Full Judgment Text
NON-REPORTABLE
2024 INSC 307
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1858 OF 2009
DHARAMBIR @ DHARMA .….Appellant(s)
VERSUS
STATE OF HARYANA ….Respondent(s)
J U D G M E N T
Mehta, J.
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1. Vide judgment and order dated 3 May, 1999, learned
Sessions Judge, Bhiwani convicted the appellant for the offence
punishable under Section 302 of the Indian Penal Code, 1860
(hereinafter referred to as ‘IPC’) and by an order of sentencing
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dated 10 May, 1999 awarded sentence of life imprisonment and
fine of Rs.500/-, in default of payment of fine, to further undergo
Signature Not Verified
Digitally signed by
Narendra Prasad
Date: 2024.04.16
16:28:34 IST
Reason:
rigorous imprisonment of six months to the appellant.
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2. The appellant challenged the said judgment by filing Criminal
Appeal No. 259-DB of 1999 in the High Court of Punjab and
Haryana at Chandigarh. The Division Bench rejected the appeal
st
vide judgment dated 21 April, 2008 and affirmed the judgment
and order of conviction and sentence passed by the trial Court.
Brief Facts: -
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3. The prosecution case in nutshell is that on 5 June, 1998, at
around 08:30 a.m., deceased Karambir, his brother Krishan
Kumar (PW-5), Ravinder (PW-6) and Mahender (PW-7) along with
two acquaintances (Mahender and Suresh) had gone to Prabhat
Cinema, Bhiwani. At about 11:30 a.m., the accused appellant who
was also present there, thrust a knife in the chest of Karambir
causing his instantaneous death and escaped leaving the knife
behind. The motive attributed to the accused appellant for
committing the offence was that he bore a suspicion in his mind
that deceased Karambir was involved in illicit relations with his
wife.
4. Rohtas Singh (PW-11) posted as Inspector/SHO, Police
Station City Bhiwani, received a telephonic message from Raj
Kumar (PW-9), Manager of Prabhat Cinema, regarding the incident
and acting in furtherance thereof, he along with other police
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personnel reached the place of occurrence and recorded the
statement of first informant-Krishan Kumar (Exhibit-PF) at 01:30
p.m., which led to the registration of FIR No. 309 of 1998 at Police
Station City Bhiwani for the offence punishable under Section 302
IPC.
5. The requisite investigation was undertaken by Rohtas Singh
(PW-11) Investigating Officer, who inspected the place of
occurrence; prepared the inquest report; seized a knife lying near
the dead body; prepared the site plan; recorded the statements of
witnesses and forwarded the dead body of Karambir to the Medical
Jurist for conducting the post mortem. The Medical Jurist-Dr.
Hemant Singh (PW-1) carried out autopsy upon the dead body of
Karambir taking note of two incised wounds, one in the epigastric
region of the upper abdomen and other on the left forearm of the
deceased. The Medical Jurist (PW-1) issued a Post Mortem Report
(Ex.-PA) opining that the cause of death of the deceased was shock
and haemorrhage, as a result of injury No.1 inflicted to the vital
organs which was sufficient to cause death in the ordinary course
of nature.
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6. The accused appellant was arrested on 7 June, 1998 and
chargesheet was filed against him for the offence punishable under
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Section 302 IPC in the Court of the concerned Magistrate. The case
being exclusively triable by the Sessions Court was committed to
the Court of Sessions Judge, Bhiwani where charge was framed
against the accused appellant for the offence punishable under
Section 302 IPC, who denied the same and claimed trial.
7. The prosecution examined 11 witnesses so as to prove its
case. The prosecution case was primarily based on the testimonies
of Krishan Kumar (PW-5), the first informant, being the brother of
the deceased and Ram Kumar (PW-8) who claimed that the
accused had made an extra judicial confession before him.
8. The accused was questioned under Section 313 of Code of
Criminal Procedure, 1973 (hereinafter being referred to as ‘CrPC’)
and upon being confronted with the circumstances appearing in
the prosecution evidence, he denied the same and claimed to be
innocent. One Piare Lal was examined as DW-1.
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9. Vide judgment dated 3 May, 1999, the trial Court proceeded
to convict the accused appellant and sentenced him as above. The
appeal preferred by the appellant against the judgment and order
of conviction and sentence was rejected by Division Bench of High
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Court vide judgment dated 21 April, 2008, which is subject to
challenge in the present appeal.
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Submissions on behalf of the appellant:-
10. Shri Rishi Malhotra, learned counsel representing the
appellant vehemently contended that the evidence of the star
prosecution witness Krishan Kumar (PW-5) is not reliable. The
witness made gross improvements from his earlier statement
(Exhibit-PF) based upon which, the FIR came to be registered. The
time of incident narrated by Krishan Kumar (PW-5) in his
testimony does not match with the time of incident as stated by
Raj Kumar (PW-9), Manager of Prabhat Cinema. He further
submitted that the very presence of Krishan Kumar (PW-5) at the
crime scene is belied by the circumstance that he did not receive
any blood stains either on his person or on his clothes, which was
bound to happen if the witness was present at the crime scene
because his natural reaction on seeing his own brother being
stabbed would have been to make an attempt to save the victim
and in this process, his hands and clothes would certainly get
smeared with the blood oozing out from the wounds received by
the victim. However, the witness admitted that he did not get any
blood stains on his clothes and hands which makes his presence
at the crime scene doubtful.
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11. Shri Malhotra further pointed out that there is grave
contradiction in the evidence of Krishan Kumar (PW-5) and Raj
Kumar (PW-9), regarding the row of seats, where the witnesses and
the deceased were seated and the row where the accused was
seated. He further submitted that in the statement(Exhibit-PF) of
first informant-Krishan Kumar, based whereupon the FIR came to
be registered, it was recorded that after about 5 to 7 minutes from
the interval, deceased Karambir cried ‘ aah’ and fell down from the
chair. The first informant(PW-5) asked Mahender(PW-7), Ravinder
(PW-6), the other two acquaintances (Mahender and Suresh) as to
what happened to his brother. All of them were checking Karambir
and during the intervening period, the accused escaped from the
crime scene. The witness(PW-5) ran towards the gatekeeper and
asked him to switch on the lights and in illumination, it was seen
that a knife had been thrust into the chest of Karambir.
12. Referring to the deposition of Krishan Kumar (PW-5), Shri
Malhotra submitted that the witness stated that he himself saw
accused-Dharambir @ Dharma running away from the crime scene
which is an improvement from what he had stated in the FIR. It
was contended that two companions of the informant, namely,
Ravinder (PW-6) and Mahender (PW-7) did not support the
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prosecution case and were declared hostile. Krishan Kumar (PW-
5) did not produce the ticket which he had purportedly purchased
for watching the movie in Prabhat Cinema. The witness further
stated that he and deceased Karambir were sitting in the first row
which was reserved for women. However, Rohtas Singh (PW-11)
Investigating Officer upon conducting the spot inspection, found
that the eye witnesses were sitting on the back row, whereas
deceased Karambir was sitting ahead of them.
13. The attention of the Court was drawn to the statement of Raj
Kumar (PW-9), Manager of Prabhat Cinema who deposed that the
gatekeeper approached him at around 11:30 a.m. to 11:45 a.m.
and informed that one person was lying in the cinema hall. When
he went there, he saw the victim lying between the seats of the first
and second rows.
14. As per Shri Malhotra, there are grave contradictions, in the
first version of the first informant-Krishan Kumar i.e Exhibit-PF
and his sworn statement as PW-5. His testimony is also
contradicted in material particulars by the testimony of Raj Kumar
(PW-9), Manager of Prabhat Cinema and Rohtas Singh (PW-11)
Investigating Officer. He also submitted that the gatekeeper of
Prabhat Cinema who was the first person to be informed after the
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incident, was not examined in evidence and thus, adverse
inference deserves to be drawn against the prosecution because
material evidence was withheld.
15. Regarding the allegation that the accused made an extra
judicial confession before Ram Kumar (PW-8), ex-Sarpanch, Shri
Malhotra submitted that there was no occasion for the accused to
have made a confession before the witness who was closely related
to the deceased. He also urged that as per Ram Kumar (PW-8),
when the accused made the extra judicial confession, Piare Lal,
s/o Jagmal was also present with him. The said Piare Lal was not
examined by the prosecution, rather, he was examined as DW-1
and he emphatically denied that the accused had made any
confession of guilt in his presence before Ram Kumar (PW-8), ex-
Sarpanch and also denied that he and Ram Kumar (PW-8) had
produced the accused before the police.
16. Shri Malhotra concluded his submissions urging that the star
prosecution witness Krishan Kumar (PW-5) falls in the category of
a wholly unreliable witness and thus, his evidence cannot be relied
upon so as to uphold the conviction of the appellant. He placed
reliance on the judgment rendered by this Court in the case of
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Pritinder Singh Alias Lovely v. State of Punjab and contended
that an extra judicial confession is a very weak piece of evidence
and since the testimony of the witness, Ram Kumar (PW-8), before
whom the accused allegedly made the extra judicial confession,
has been contradicted by evidence of Piare Lal (DW-1), there
cannot be any justification to rely upon his evidence as well.
17. As per Shri Malhotra, once the testimony of Krishan Kumar
(PW-5) and Ram Kumar (PW-8) is discarded, there remains no
evidence on record so as to uphold the conviction of the appellant
as recorded by the trial Court and affirmed by the High Court. He
implored the Court to accept the appeal and set aside the
impugned judgments and acquit the appellant of the charge.
Submissions on behalf of the State: -
18. Per contra , Shri Deepak Thukral, learned Additional Advocate
General representing the State vehemently and fervently opposed
the submissions advanced by the learned counsel for the
appellant. He urged that the evidence of Krishan Kumar (PW-5),
being real brother of the deceased, is natural and trustworthy. The
accused is also closely related to the witness (PW-5) and the
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(2023) 7 SCC 727
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deceased and hence, there could not have been any reason for
Krishan Kumar (PW-5) to falsely implicate the accused for the
murder of his own brother. He further submitted that Ram Kumar
(PW-8), ex-Sarpanch has also given convincing evidence to prove
the factum of extra judicial confession made by the accused before
him and hence, the testimony of the said witness lends
corroboration to the evidence of Krishan Kumar (PW-5). He
submitted that the judgments rendered by the trial Court and the
High Court recording concurrent findings of facts do not suffer
from any infirmity warranting inference and sought dismissal of
the appeal.
19. We have given our thoughtful consideration to the
submissions advanced at bar and have minutely appreciated the
evidence available on record. We have also gone through the
impugned judgments.
Consideration of evidence and submissions:-
20. There is no dispute on the aspect that the death of Karambir
was homicidal as proved by the Medical Jurist-Dr. Hemant Singh
(PW-1) in his testimony and thus no discussion is required on this
aspect of the case.
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21. The core issue, which requires consideration of this Court is
as to whether the testimonies of the two star prosecution
witnesses, namely, Krishan Kumar (PW-5) and Ram Kumar (PW-
8) is reliable enough so as to affirm the guilt of the accused.
22. The motive for the incident as set out in the testimony of
Krishan Kumar (PW-5) was that the accused who was closely
related to the informant and deceased Karambir, was bearing a
grudge in his mind that Karambir had developed illicit relations
with his wife. As per the witness, the accused had threatened to
take revenge upon Karambir, who was sent away from Bhiwani to
live at Pali Gothra, Rewari, the village of his maternal uncle for
further studies. Karambir returned to village Pehladgarh from his
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maternal uncle’s home on 4 June, 1998. On 5 June, 1998, both
the brothers, i.e., deceased Karambir and Krishan Kumar (PW-5)
went to see their maternal aunt who was admitted in a hospital at
Bhiwani for treatment. After meeting their maternal aunt, the
brothers went to see a movie in Prabhat Cinema, Bhiwani. They
were accompanied by four other persons, namely Ravinder, Suresh
and two by the name of Mahender.
23. As per the FIR (Exhibit-PF/2), these six persons entered
Prabhat Cinema at about 08:30 a.m. in the morning and occupied
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the first row which was reserved for women. The witness Krishan
Kumar (PW-5) stated on oath that he was sitting besides his
brother Karambir who was occupying the last chair in the same
row i.e. the first row. The accused Dharambir @ Dharma was
allegedly sitting in the next row in front of the chairs occupied by
the witness and the deceased which by itself is a contradiction
because if the witness (PW-5) and deceased were occupying the
first row, there could not have existed another row in front of the
same.
24. Be that as it may, nothing transpired till the interval of the
movie. After the interval, the movie resumed and within five
minutes, Karambir made a sound of ‘ aah’ on which, Krishan
Kumar (PW-5) tried to enquire as to what had happened but by
that time, Karambir had taken his last breath. Krishan Kumar
(PW-5) claims to have seen Dharambir @ Dharma (accused)
running away. He further stated that he ran towards the
gatekeeper and asked him to switch on the lights and in the
illumination thereof, he saw his brother lying dead with his face
upwards. We find that there are inherent flaws in this version of
Krishan Kumar (PW-5). The deceased Karambir, Krishan Kumar
(PW-5) and the accused appellant were closely related and were
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residents of village Pehladgarh. The accused appellant allegedly
bore a grudge against the deceased and due to which, he had been
sent away to a different village, namely, Pali Gothra, Rewari for
pursuing further studies. From the deposition of Krishan Kumar
(PW-5), it emerges that it was purely a chance visit of him and his
deceased brother to Bhiwani in order to see their maternal aunt
who was admitted in a hospital at Bhiwani. Thus, the accused
who resides at village Pehladgarh, could not have had the faintest
idea that the deceased would be visiting Bhiwani on that particular
day or that he would be going to Prabhat Cinema to watch the first
show.
25. The prosecution tried to prove through Jai Kishan (PW-10)
that the accused had purchased a knife from him. However, the
said witness did not oblige the prosecution and was declared
hostile. Thus, the very probability of the accused having reached
Prabhat Cinema at Bhiwani simultaneously with Krishan Kumar
(PW-5) and the deceased Karambir and that too after making the
preparation to kill the deceased by purchasing a knife is absolutely
negligible and the prosecution story does not inspire confidence.
26. Out of the four persons who accompanied the deceased
Karambir and the first informant-Krishan Kumar (PW-5) to
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Prabhat Cinema, only two, i.e., Ravinder (PW-6) and Mahender
(PW-7) were examined in evidence. They did not support the
prosecution case and were declared hostile. Thus, there is no
independent corroboration to the testimony of Krishan Kumar
(PW-5).
27. As has been noted above, Krishan Kumar (PW-5) stated that
he along with the deceased was sitting in the first row which was
reserved for women. The accused was sitting in the next row in
front of chairs occupied by Krishan Kumar (PW-5) and deceased
Karambir. Contrary thereto, Rohtas Singh (PW-11) Investigating
Officer stated that as per the spot inspection plan, there were two
rows of chairs ahead of the point ‘A’ where the prosecution
witnesses were sitting, whereas the deceased was sitting in the row
in front of the prosecution witnesses. It may be stated that the
version of Rohtas Singh, Investigating Officer(PW-11) regarding the
row where the witnesses and deceased were sitting may not be
strictly admissible in evidence, but it definitely creates a doubt on
the prosecution story. This doubt is further fortified upon
considering the evidence of Raj Kumar (PW-9), Manager of Prabhat
Cinema who stated that the deceased was lying in between the
seats of the first and second rows.
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28. As per the first informant Krishan Kumar (PW-5), he along
with other witnesses and the deceased was sitting in the first row
of chairs. Thus, there was hardly any possibility that deceased
Karambir after being stabbed with a knife would fall in between
the seats of the first and second row. It is also highly improbable
that the first informant-Krishan Kumar (PW-5) who was sitting on
the seat adjacent to the one occupied by the deceased, would have
failed to notice the commotion preceding the assault.
29. Raj Kumar (PW-9), Manager of Prabhat Cinema stated in his
cross-examination that when he reached the crime scene, 3 to 4
persons of village Pehladgarh were present there and they told the
police that the deceased hails from village Pehladgarh. If at all,
there is an iota of truth in the claim of Krishan Kumar (PW-5) that
he was present in Prabhat Cinema with his deceased brother, this
vague information would not have been provided to the police
officials because Krishan Kumar (PW-5) would have immediately
disclosed his brother’s identity. Krishan Kumar (PW-5) admitted in
his cross-examination, that the dead body of his brother was lifted
from the spot at about 04:00 p.m. The incident had taken place at
around 11:30 a.m. and thus it is indeed surprising as to why the
dead body was lying in Prabhat Cinema till 04:00 p.m. Krishan
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Kumar (PW-5) did not hand over the ticket of the cinema hall to
the police. As per memo (Exhibit P-22), when the body of the
deceased was searched, only one ticket was found in his pocket.
Krishan Kumar (PW-5) admitted that he did not get blood stains
on his hands and clothes when he touched the body of his brother.
30. There cannot be any doubt that witness-Krishan Kumar (PW-
5) could not have decided at the first blush that his brother had
expired as a result of the knife blow. The natural reaction expected
from a brother in such a situation would have been to take
immediate steps for taking the victim to the hospital so as to save
his life. However, Krishan Kumar (PW-5) did not make any such
attempt. In this background, we are of the view that the very
presence of Krishan Kumar (PW-5) at the crime scene is doubtful
and his testimony is not trustworthy.
31. Another significant contradiction regarding the sequence of
events is noticeable in the evidence of Krishan Kumar (PW-5). In
his statement (Exhibit-PF) based on which FIR was lodged, he
narrated that he saw that the accused was missing from the seat
but in the sworn testimony as PW-5, he tried to improve the version
and stated that he saw the accused while he was fleeing away. This
improvement made by the witness-Krishan Kumar (PW-5) again
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creates a doubt on his presence at Prabhat Cinema at the time of
the incident.
32. We, therefore, feel that it would not be safe to place reliance
on the evidence of Krishan Kumar (PW-5) as he clearly falls within
the category of a wholly unreliable witness.
33. Ram Kumar (PW-8) stated that he and Piare Lal (DW-1) were
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sitting at his house on 7 June, 1998 and at about 12:00 noon,
the accused appellant approached them and confessed that he had
killed his father’s elder brother’s son Karambir at Prabhat Cinema.
34. Ram Kumar (PW-8) also stated that he and Piare Lal took the
accused to Bhiwani and produced him before the police.
35. However, Piare Lal was not examined by the prosecution and
rather he was examined in defence. In his testimony, Piare Lal
(DW-1) emphatically denied that any extra judicial confession was
made by the accused in the presence of Ram Kumar (PW-8). Thus,
the evidence of Ram Kumar (PW-8) regarding the extra judicial
confession made by the accused is contradicted by the evidence of
Piare Lal (DW-1). Even otherwise, extra judicial confession by its
very nature is a weak piece of evidence. It may be used as a
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corroborative piece of evidence in tandem with substantive
evidence.
36. We are, therefore, convinced that both the star prosecution
witnesses i.e. Krishan Kumar (PW-5) and Ram Kumar (PW-8) fall
within the category of wholly unreliable witnesses and thus, in
light of the law laid down by this Court in the case of Pritinder
Singh Alias Lovely (supra) , it would be unsafe to place reliance
on their evidence so as to affirm the guilt of the accused appellant.
No other evidence was led by the prosecution for bringing home
the charge.
Conclusion: -
37. In wake of the discussion made above, we have no hesitation
in holding that the prosecution failed to bring home the charge and
establish the guilt of the accused appellant beyond reasonable
doubt.
38. As a consequence, the conviction of the appellant as recorded
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by the trial Court vide judgment and order dated 03 May, 1999
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and affirmed by the High Court vide judgment dated 21 April,
2008 cannot be sustained and the appellant deserves to be
acquitted by giving him the benefit of doubt.
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39. Resultantly, the appeal merits acceptance and is hereby
allowed. The impugned judgments passed by the High Court and
trial Court are quashed and set aside.
40. The appellant is acquitted of the charge.
41. The appellant is on bail and need not surrender. His bail
bonds stand discharged.
42. Pending application(s), if any, stand(s) disposed of.
….........................J.
(B.R. GAVAI)
............................J.
(SANDEEP MEHTA)
New Delhi;
April 16, 2024
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