Full Judgment Text
2023INSC801
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.2216-2217 OF 2011
HARILAL ETC. … Appellant(s)
Versus
STATE OF MADHYA PRADESH
(NOW CHHATTISGARH) … Respondent
J U D G M E N T
MANOJ MISRA, J.
1. These two appeals are directed against a
common judgment and order of the High Court of
Chhattisgarh at Bilaspur (in short, “the High Court”),
dated 17.02.2010, passed in Criminal Appeal Nos.
864 and 865 of 1991, whereby the appeals of Harilal
and Parasram @ Rangnath (the appellants herein)
were dismissed and the order of the third Additional
Sessions Judge, Bilaspur, dated 13.07.1991, passed
in S.T. No.153 of 1990, convicting and sentencing the
appellants to imprisonment for life under Section 302
Digitally signed by
Narendra Prasad
Date: 2023.09.05
18:32:40 IST
Reason:
Signature Not Verified
Criminal Appeal Nos.2216-2217 of 2011 Page 1 of 20
of the Indian Penal Code, 1860 (in short, “I.P.C.”) was
affirmed.
Introductory Facts
2. Three accused, namely, Anshram, Parasram
alias Rangnath and Harilal, were tried for committing
murder of Ellahabadiya alias Vijay (the deceased) on
25.08.1989 at about 8.00 pm. Based on information
received, a first information report (Ex.P-7) (in short,
“the FIR”) naming the aforesaid three accused was
lodged by Smt. Jugmatibai (PW-9) at P.S. Hirri,
District Bilaspur (M.P.) on the next day of the
incident i.e. on 26.08.1989 at about 10 am. On
26.08.1989 itself, the inquest was conducted and the
police collected blood-stained earth/plain earth from
the spot and also seized a lathi, which was lying near
the body of deceased. On the same day, the police
showed discovery of lathi, Baniyan , Lungi (loin-cloth)
at the instance Anshram from his house. Similarly,
discovery of lathi and clothes at the instance of
Parasram was disclosed from his house. The third
accused, namely, Harilal, was arrested on
27.08.1989 and on the same day, a lathi and clothes
were allegedly discovered at his instance from his
house. The dead body of the deceased was sent for
autopsy, which was conducted by Dr. S. K. Dutta
(PW-8) on 27.08.1989 at 12.30 pm. PW-8 noticed
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that rigor mortis was present in lower limbs;
decomposition had started; the eyes were forced out
of the sockets; tongue was protruding between the
teeth; lips were swollen and everted; abdomen was
distended; penis and scrotum were swollen; multiple
skin blisters containing reddish fluid on the face and
front of the trunk were seen and faecal matter had
escaped. PW-8 observations in respect of the cadaver
were as follows: -
Ante-mortem External Injuries : -
(i) Lacerated wound 3.5cm x 2.5cm x 0.5cm
on left temporal region;
(ii) Lacerated wound 2.5cm x 1 cm dividing
the centre of the pinna of the left ear.
Both the injuries were black and were
surrounded by black clotted blood.
(iii) Three contusions on one third upper
portion of the left thigh in the side
portion:
25cm x 1 cm;
12 cm x 1 cm; and
7cm x 1cm.
Colour of which had blackened
Internal Examination : -
Brain - Extradural haemorrhage on the left
temporal region in the form of localised clot
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which had compressed and flattened the
underlying brain.
th th th th th
Chest - Fractures on 4 , 5 , 6 , 7 and 8 ribs
on both sides.
Lungs - Contusion of both lungs on the anterior
surface. Pleural cavity contained black
clotted blood.
Heart - Both the chambers of heart were empty.
Cause of death - Shock due to injuries in the
brain and lungs.
Duration: Time since death is 24 to 48 hours.
3. The prosecution examined as many as 15
witnesses. They were broadly categorized by the trial
court into three categories: - (i) eye-witnesses of the
incident; (ii) witnesses who reached the spot on
getting information about the incident; and (iii)
witnesses who proved proceedings relating to
investigation, medical examination, inquest, seizure
memos, preparation of site plan, etc.
4. The first category of witnesses were: PW-1
(Kanhaiya Lal); PW-2 (Sitaram); PW-3 (Mohanlal); and
PW-6 (Ganesh). Another witness, namely, PW-4
(Ramanand), who was set up as a person who arrived
at the spot on receipt of information of the incident,
during his deposition, portrayed himself as an eye-
witness of the incident.
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5. Amongst the aforesaid category of witnesses,
PW-1 was declared hostile. When he was confronted
with his previous statement recorded under section
161 of the Code of Criminal Procedure, 1973 (in
short, “the Code”) he stated that the police had
forcibly taken his statement though he had not
witnessed the incident. Consequently, the trial court
found his testimony of no benefit to the prosecution.
PW-3 was discarded by the trial court as unreliable
because he was found inconsistent with his
statement made during the course of investigation.
PW-4, who for the first time during examination in
Court professed himself to be an eye-witness, was
also found not reliable as he too was inconsistent
with his previous statement recorded during the
course of investigation. Thus, only two eyewitnesses
of the incident, namely, PW-2 and PW-6, were
discussed in some detail by the trial court.
6. The trial court noticed that though PW-2
(Sitaram) supported the prosecution case as against
accused Harilal but he did not name the other two
accused, namely, Anshram and Parasram. However,
PW-6 who inculpated all the three accused was found
wholly reliable by the trial court. Therefore, by
placing reliance on his testimony, the trial court
convicted all the three accused. While doing so, the
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trial court found the testimony of PW-6 duly
corroborated by medical evidence as also by the
circumstance of discovery of blood-stained lathi and
clothes at the instance of the accused.
7. Aggrieved by their conviction, three separate
appeals were filed by each of the three accused.
Criminal Appeal No. 866 of 1991, which was
preferred by Anshram, stood abated consequent to
his death during pendency of the appeal. Whereas,
the other two appeals, namely, Criminal Appeal Nos.
864 of 1991 and 865 of 1991, filed by the present set
of appellants were dismissed by the High Court by
the impugned judgment and order.
8. We have heard Shri D.N. Goburdhun, learned
senior counsel, for the appellants; and Ms. Prachi
Mishra, Additional Advocate General, for the State of
Chhattisgarh.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
9. The learned counsel for the appellants
submitted that the incident is of late evening/night
whereas the FIR was lodged next day at 10 am,
which is suggestive of the fact that no one witnessed
the incident and FIR was lodged after deliberation
and the prosecution story developed thereafter;
otherwise also, testimony of PW-2 and PW-6 is
unreliable for the following reasons:
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(i) PW-2 is a resident of village Khapri,
whereas the incident occurred in village
Kohroda. According to PW-2, he had
visited Kohroda in the evening to watch
television. There he witnessed the
incident. After which, he left the village
and in the evening itself he informed
Smt. Jugmatibai (PW-9), a Kotwarin
(village chowkidar) of village about the
incident. However, PW-9 stated that
she was not informed by any person
who might have witnessed the incident.
This, according to the appellants’
counsel, seriously dents the credibility
of PW-2. That apart, PW-2 only
disclosed the name of Harilal. Further,
PW-2 does not state that the deceased
was assaulted to such an extent that
he would have expired, or had expired,
on account of injuries sustained by
him.
(ii) PW-6 is not consistent with his
previous statement made during the
course of investigation, inasmuch as
during investigation he disclosed that
the accused assaulted the deceased
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with sticks (danda) but in his
deposition in Court he stated that the
accused had assaulted the deceased
with lathi. A lathi is much thicker and
heavier than a danda . That apart, PW-6
was not consistent in respect of the
reason as to why he came out of his
house to witness the incident. In his
deposition in Court he had stated that,-
he was in his house at the time of the
incident; he came out on alarm raised
by mother of accused Parasram that
Ellahabadiya alias Vijay (i.e., the
deceased) was beating her son
Parasram, which was inconsistent with
his previous statement made during
investigation wherein he had stated
that he came out on hearing loud
noises of a fight in the Gali (alley).
Moreover, PW-6 disclosed that the
incident occurred in front of the house
of Anshram whereas the body of the
deceased was found near a temple
which was at a considerable distance
from the house of Anshram. Otherwise
also, PW-6 made no effort to lodge a
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report, or inform persons of the village.
This conduct of his does not inspire
confidence in his testimony.
10. In the alternative, it was submitted that from
the testimony of prosecution witnesses it appears to
be a case where there was a street fight. The cause
and motive for such street fight is not clear except
that there existed some dispute with regard to a lady.
Therefore, considering the nature of the weapons
used, it would be a case falling under one of the
Exceptions of Section 300 I.P.C. Hence conviction
under Section 304 Part-I I.P.C. would serve the ends
of justice and their sentences might be reduced to
the period of sentence already undergone as both the
surviving accused (appellants herein) have served
over 10 years of sentence during the course of the
trial / appeal.
SUBMISSIONS ON BEHALF OF THE STATE
11. Per contra, the learned counsel for the State
submitted that PW-9 (i.e. the informant) had deposed
that the villagers guarded the body entire night and
next day morning FIR was lodged. In these
circumstances, it cannot be said that the FIR is
delayed and, therefore, contrived. PW-2 is a natural
witness who, on his way return, witnessed the
incident and informed the informant. Even if PW-2
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did not name all the three accused in his deposition,
his deposition corroborates the testimony of PW-6
with regard to the manner in which the deceased was
assaulted by the accused. The testimony of PW-6
inculpates all the three accused and is consistent
with medical evidence. Further, nothing has come
out from their cross-examination to attribute any
improper motive on them to falsely implicate the
accused persons. Thus, there is no good reason to
disbelieve the said witnesses particularly when the
trial court and the appellate court has placed reliance
on their testimony after testing the same on the
strength of other materials/evidence(s) on record.
She also argued that the ocular account rendered by
PW-2 and PW-6 is corroborated by the circumstance
of discovery of lathi and clothes at the instance of the
accused and serologist report confirms presence of
blood on it.
12. In response to the contention that the
conviction of the accused could be altered from one
punishable under section 302 IPC to one under
section 304 Part-I, the learned counsel for the State
submitted that the injuries found on the body of the
deceased reflects that he was mercilessly beaten.
Medical evidence indicates that there were not only
head injuries but fracture of ribs as well; that too, on
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both sides. That apart, no plea was taken by the
accused persons to bring their case under any of the
Exceptions of Section 300 of the I.P.C. Hence, the
accused have been rightly convicted for the offence
punishable under section 302 I.P.C. and the appeals
lack merit.
DISCUSSION AND ANALYSIS
13. We have considered the rival submissions and
have perused the record.
14. In this case, we notice from the record that
the trial court as well as the High Court while
appreciating the evidence have not properly
addressed various aspects, namely, (a) there is no
clear cut motive proved against the accused except
that there was some incident concerning a lady of the
village; (b) PW-2 and PW-6 both state that the
deceased was assaulted in front of the house of one
of the accused persons, namely, Anshram, but, the
site plan (Ex. P-21/P-22) does not disclose the house
of Anshram and from the site plan as well as the
testimonies of PW-6, PW-9 (the informant) and police
witnesses it is clear that dead body of the deceased
was found near a temple about 300 feet away from
the place where the deceased was allegedly
assaulted; as to how the dead body reached there,
the ocular account has no explanation though some
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drag marks were noticed by the investigating officer;
(c) as per seizure memorandum (Ex. P-13), amongst
other articles, a lathi was seized by the police from
the place where the dead body was lying - whose
lathi it was, the prosecution evidence is silent; (d) the
articles i.e. lathi and clothes seized at the instance of
the accused though were stained with blood, the
serologist report could not confirm its origin; and (e)
PW-2 sets up a story that he narrated the incident to
PW-9 but PW-9, who is Kotwarin (village Chowkidar)
of a neighbouring village, states that she was not
informed by any eye witness, rather she arrived at
the spot as a reaction to the commotion. All these
aspects were material as they were indicative of a
mob violence on the deceased due to some incident
concerning a lady of the village.
15. Bearing the above aspects in mind, we shall
now carefully examine the prosecution evidence to
test whether it inspires confidence and succeeds in
proving the charge against the accused beyond
reasonable doubt.
16. Before we proceed to analyse the testimony of
the two material eye-witnesses of the incident (i.e.,
PW-2 and PW-6), what is important to note is that as
per the ocular account of PW-2 and PW-6, the
assault on the deceased took place between 7 pm
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and 8 pm of 25.08.1989. However, neither PW-2 nor
PW-6 lodged the FIR. Rather, a named FIR was
lodged on 26.08.1989 at 10 am by PW-9 i.e.,
Kotwarin (village Chowkidar) of neighbouring village
Khapri, even though she was not an eye witness. In
these circumstances, the statement of PW-9 assumes
importance to ascertain the source of her
information. Unfortunately, neither the trial court
nor the High Court have carefully considered the
deposition of PW-9.
17. PW-9, in her deposition, stated that she is
of village Kharpi and of village
Kotwarin Kotwar
Kohroda (i.e., the place where incident occurred) is
some other person. Ellahabadiya @ Vijay (the
deceased) was a resident of her village. On the night
of the incident, at about 9 pm, while she was taking a
round of her own village, she heard loud noises
coming from village Kohroda. Fellow villagers Lulwa
and Sudhwa asked PW-9 to go to village Kohroda.
When she went to village Kohroda, she noticed the
dead body of Ellahabadiya lying near Rupau temple.
Upon finding the dead body there, she went to inform
the village Chowkidar of Kohroda, woke him up and
brought him to the place where the dead body was
lying. Thereafter, the body was guarded through the
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night with the help of villagers and next day morning,
FIR was lodged at P.S. Hirri.
During cross-examination , PW-9 specifically
stated that she was not informed by any person that
he had witnessed the deceased being beaten. She
also specifically stated that neither Parasram nor
Sitaram came to inform her about the incident.
18. The statement of PW-9 is of significance for
multiple reasons. First, that PW-2 did not inform her
about the night incident as is alleged by PW-2 in his
deposition; second, the body of the deceased was
found near the temple and was kept there overnight;
and third, if no one had told PW-9 about the
incident, why a named FIR was lodged.
19. Although there might not have been a specific
question put to PW-9 as regards the delay in lodging
the FIR but the fact that it was a delayed FIR cannot
be ignored. When an FIR is delayed, in absence of
proper explanation, the courts must be on guard and
test the evidence meticulously to rule out possibility
of embellishments in the prosecution story,
inasmuch as delay gives opportunity for deliberation
and guess work. More so, in a case where probability
of no one witnessing the incident is high, such as in
a case of night occurrence in an open place or a
public street.
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20. Bearing the above principles in mind, when
we test the deposition of PW-2 against the weight of
PW-9’s testimony, the statement of PW-2 to the effect
that after witnessing the incident, he left the spot
and informed PW-9 appears unworthy of acceptance.
That apart, PW-2 does not inculpate all the three
accused. He only inculpates Harilal. In this regard,
PW-2 is inconsistent with his previous statement
inasmuch as in his previous statement, with which
he was confronted, he had inculpated all the three
accused whereas in his deposition in Court he stated
that he had not stated before the investigating officer
that both Anshram and Harilal were assaulting the
deceased. Moreover, PW-2 does not disclose the
seriousness of the assault on the deceased. He does
not state that the deceased was seriously injured by
the blows inflicted on him. Therefore, his statement
is inconclusive as regards the assault being the
cause of death. Rather, it leaves room for a possibility
that the assault which he witnessed was just the
beginning of a mob assault on the deceased
concerning his involvement with a lady of the village.
More so, when the dead body of the deceased was
found 300 feet away from the place where the
deceased was allegedly assaulted. Further, PW-2’s
statement in respect of number of persons assaulting
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the deceased appears inconclusive. Taking the above
into account and having regard to the fact that PW-2
is a chance witness, not a resident of the village
where the incident occurred, and his statement was
inconsistent with his previous statement, in our view,
it would be unsafe to rely on PW-2 to convict the
accused for the offence of murder.
21. Insofar as PW-6 is concerned, he too is a
chance witness, inasmuch as he was not present at
the spot when the assault on the deceased started.
According to him, he came out to witness the
incident when an alarm was raised by mother of
Parasram, one of the accused, that Ellahabadiya (the
deceased) was beating her son. According to PW-6,
when he came out, he saw all the three accused
assaulting the deceased with lathi in front of the
house of Anshram. He does not state that the
deceased was armed and had attacked the accused.
The deposition of PW-6 that he came out to witness
the incident on alarm raised by accused Parasram’s
mother that his son is being beaten by Ellahabadiya
(the deceased) is inconsistent with his previous
statement made during the course of investigation,
with which he was confronted, wherein he stated that
he came out on hearing loud noises coming from the
street in front of the house of Anshram. His previous
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statement is reflective of a mob attack on the
deceased which is corroborated by PW-6’s conduct,
inasmuch as, according to PW-6, after witnessing the
incident, PW-6 went away without informing any one
about the incident and returned back only when all
the villagers congregated at Rupau temple near the
dead body of the deceased. No doubt, different people
react differently to a given situation. But if it had
truly been an issue between few individuals fighting
in the street, natural course of human conduct would
be to collect people to solve out issues. However,
where villagers in general, and none in specific,
assault a person accused of his involvement with a
lady, it is quite natural for by-standers not to
intervene.
22. In addition to the above, what is of
significance is that if PW-6 had arrived at the spot
later, when other villagers had collected near the
body of the deceased, he could have informed PW-9
about the culpability of the accused but, PW-9
categorically states in her deposition that no one
informed her about the perpetrator of the crime.
23. Further, PW-6 gives no indication as to how
the body of the deceased was brought near the
temple from the place where he was allegedly
assaulted i.e. in front of the house of Anshram. It be
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noted that in paragraph 4 of his deposition, PW-6
categorically states that the distance between the
temple where the body was found and the place
where the deceased was assaulted is 300 feet. For all
the reasons above, we do not find the testimony of
PW-6 to be of such a stellar quality that it may on its
own form the basis of conviction of the accused for
the offence of murder. More so, because it leaves
many gaps in the prosecution story, namely, as to
how the body came near the temple and why a lathi
was left near the dead body of the deceased when, as
per the police story, all the three assailants had
walked away with their respective lathis, which were
later discovered at their instance.
24. In light of the discussion above, we are of the
considered view that the prosecution has not been
able to convincingly prove the genesis of the crime as
also the manner in which the murder took place and
by whom, inasmuch as the evidence led by the
prosecution gives rise to a strong probability of the
killing being a consequence of mob action on the
deceased for his alleged involvement with a lady of
the village. Thus, taking into account that it was a
case of night occurrence, the body of the deceased
was found at an open place near a temple; a named
FIR was lodged not by any villager of the place where
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the deceased was assaulted, but by PW-9 i.e., the
village Chowkidar of the neighbouring village, who
admits that no eye witness had informed her; and the
body was found at a distance of 300 feet from the
place where the deceased was allegedly assaulted, we
are of the view that this is a fit case where the
accused are entitled to the benefit of doubt.
25. At this stage, we may observe that though the
prosecution relied on seizure of lathis and clothes at
the instance of the accused but these incriminating
circumstances have been denied and the serologist
report could not confirm the origin of blood stains
found thereon. That apart, next to the dead body of
the deceased, a lathi was found. This lathi alone
could have caused the injuries found on deceased’s
body. Unexplained presence of the lathi is of
significance when it is not the case of the prosecution
that the deceased had used the lathi in self-defence.
For all the reasons above, we do not consider seizure
of lathi and clothes from the accused as a clinching
circumstance warranting conviction.
26. The appeals are accordingly allowed. The
judgment and order of the High Court as well as of
the Trial Court are set-aside. The appellants are
acquitted of the charge for which they have been
tried. The appellants are reported to have been
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released on bail during the pendency of this appeal.
Their bail bonds are discharged. They need not
surrender. In case they are not on bail, they shall be
released forthwith unless wanted in any other case.
..................................... J.
(J. B. Pardiwala)
..................................... J.
(Manoj Misra)
New Delhi;
September 05, 2023
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