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Nathu Ram Vs. State of Haryana [1993] INSC 455 (27 October 1993)

MOHAN, S. (J) MOHAN, S. (J) SAWANT, P.B. CITATION: 1994 SCC (1) 491 JT 1993 (6) 276 1993 SCALE (4)258

ACT:

HEADNOTE:

The Judgment of the Court was delivered by S.MOHAN, J.- The appellant along with one Dr Ramesh Kumar was sentenced to 3 1/2 years' rigorous imprisonment with fine of Rs 1,000 each under Sections 376/511 of the Indian Penal Code and in default of payment of fine the defaulter was to undergo rigorous imprisonment for a period of three months. The conviction and sentence imposed by the learned Sessions judge of Namaul was unsuccessfully appealed against before the High Court in Criminal Appeal No. 464/SB of 1988.

The present appeal is directed against the said conviction and sentence by Nathu Ram, accused 2 (appellant herein).

The prosecution case is as follows.

2.On January 11, 1986 Mansa Ram (PW 8) made an application to the chief Minister of Haryana to the effect that his son Saturday is serving in he Army and his wife Nirmala (daughter-in-law) is living in the village with him.

She was suffering from malaria. Therefore, he took her on October 20, 985 for treatment to a private medical practitioner, namely, Dr Ramesh kumar (accused 1) who had his clinic at Satnali in the market. He and Nirmala reached the clinic at about 1 p.m. and contacted the doctor who assured them of curing her. He gave Nirmala two tablets with a glass of From the Judgment and Order dated November 1, 1989 of the Punjab and Haryana High Court in Criminal Appeal No. 464-SB of 1988 492 water and asked her to lie down on the cot behind a curtain.

Dr Ramesh called Nathu Ram, Secretary of the Market Committee, accused 2 (the appellant herein) whom he called his guru. Dr Ramesh then asked Mansa Ram (PW 8) to bring hot water from outside. When he returned with hot water and entered the clinic he found that they had attempted to rape Nirmala. On seeing him, the appellant, Nathu Ram ran away.

Dr Ramesh was caught and given a beating by him. Some other people intervened and got Dr Ramesh freed. He thereafter went to Ganga Ram, Havaldar of Police Station, Satnali who said that he would himself arrest him but he did not take any action. He requested the Chief Minister to get the investigation of the case done.

3. The above complaint was marked through the Deputy Commissioner, Namaul to the Senior Superintendent of Police, Narnaul for enquiry. On enquiry, he filed the report that the allegations in the complaint were false. Not being satisfied with the report of the police, the Deputy Commissioner of Namaul marked the complaint on September 11, 1986 for a fresh enquiry to the SDM, Mahendragarh. He conducted the enquiry at Satnali. He made his report on February 4, 1987 recommending for registration of the case against the doctor and the appellant. This was marked to the SPO, Namaul for registration of the case. Accordingly FIR No. 31 dated May 18, 1987 in P.S. Satnali was registered under Sections 354 and 376 read with Section 511 of the Indian Penal Code. After investigation the appellant and Dr Ramesh were sent for trial.

4. Before the learned Sessions Judge Mansa Ram appeared as the main prosecution witness (PW 8). He deposed that Nirmala (PW 4) is the wife of his son who is employed in the Army. She was suffering from malaria fever on October 20, 1985. He took her to the clinic of Dr Ramesh (accused 1).

It was at about 1 o'clock in the day. Dr Ramesh told that he will cure her and gave two tablets to Nirmala (PW 4) with a glass of water which she took. Dr Ramesh called his guru Nathu Ram, accused 2 (appellant herein), who is the Secretary of the Market Committee. Nirmala was asked to lie down on a cot behind a curtain in the clinic. Dr Ramesh then asked Mansa Ram (PW 8) to get hot water from outside.

When he entered the clinic with hot water he saw Dr Ramesh totally naked and Nathu Ram, the appellant, in his nikar and jersey. They were standing there and Nirmala was on a cot.

She was unconscious and her salwar had been folded to the extent of half. Mansa Ram (PW 8) raised an alarm. The appellant ran away. Banwari (PW 6) and Mool Chand (PW 5) came inside the clinic. Mansa Ram (PW 8) gave slaps to Dr Ramesh. Several other people assembled there. He put the salwar of Nirmala (PW 4) in order and covered her and took her back. The same day, he handed over a complaint to Ganga Ram, HC of Police Station, Satnali. He did not take any action. Therefore, he made a complaint to the Deputy Commissioner and the Chief Minister. Though he was cross- examined at length his evidence could not be shaken, in any manner. His evidence was corroborated by Nirmala (PW 4) in material parts. Mool Chand (PW 5) also stated that he and Banwari (PW 6) saw Nathu Ram, accused 2 (the appellant 493 herein) present at the relevant time in the clinic in a kachha and a banian. Dr Ramesh, accused 1, was wearing only an underwear. Nirmala (PW 4) was lying unconscious on a cot. Her salwar was lying open. Nathu Ram ran away from the back door of the clinic. Ganga Ram, the Head Constable (CW 2), was examined. He denied that any complaint was given to him by Mansa Ram (PW 8). Narsingh Das (CW 1) was the person who wrote the complaint for Mansa Ram (PW 8).

5.On accepting the evidence of prosecution witnesses the learned Sessions Judge came to the conclusion that the delay in filing the first information report was satisfactorily explained because Mansa Ram `PW 8) gave the complaint in 1986 as well as in 1987 and he was relentlessly pursuing the same.

6.As regards the so-called discrepancies in the evidence he was of the view that the statements of Mansa Ram and Nirmala, PWs 8 and 4 respectively, sound natural, more so, when they were illiterates. The version by the defence that the doctor refused to perform the abortion or that the Secretary (the appellant herein) was in the knowledge of some secrets of Mansa Ram (PW 8) and, therefore, he was being pressurised are absolutely preposterous. If an abortion had been refused the complainant could have gone to some other clinic. Why should he involve the doctor in a false case? Mansa Ram (PW 8) had no prior enmity against Dr Ramesh. Nathu Ram (accused 2) could have disclosed the alleged secrets against Mansa Ram (PW 8) during the trial.

So, the pleas taken by the accused persons are totally imaginary. On this basis, both the accused were sentenced to 3 1/2 years rigorous imprisonment with a fine of Rs 1,000.

7.In Criminal Appeal No. 464/SB of 1988 the High Court came to the same conclusion that the delay in filing the first information report had been satisfactorily explained.

8.It was concluded that an illiterate villager had taken his daughter-in-law toa private medical practitioner who abused his position and tried to molestthe lady. Nathu Ram, the appellant exploited the situation as there was nobody to help Nirmala (PW 4) who had been made unconscious by Dr Ramesh Kumar (accused 1). He also tried to misbehave with her. The testimony of prosecution witnesses was found to be convincing. Therefore, the conviction and the sentence were confirmed.

9.In this appeal before us, it is argued by the learned counsel for the appellant somewhat vehemently, that the evidence of Narsingh Das (CW 1) is categoric that no complaint whatever was given to him. It is only at the instigation of some others a false complaint had come to be preferred whereas he had nothing to do with the alleged offence. Besides, that day was a Sunday. There was no possibility of the appellant going to the doctor's clinic.

10.Mansa Ram (PW 8) is the main witness in this case.

Since Nirmala (PW 4) became unconscious the moment she was administered two pills by the doctor, she could not know much. On an analysis of the evidence of 494 Mansa Ram (PW 8) it is found there are vital discrepancies which will clearly belie the case of prosecution. Merely because the appellant was standing in kachha and banian, that cannot straight away lead to an inference of abetment of rape nor attempted rape, when no overt act is alleged.

11.We have given our careful consideration to the above arguments. We may straight away say that we are not in a position to accept any of them. This is a case in which an illiterate villager with his daughter-in-law came for medical treatment but the appellant as well as the doctor had other designs to exploit the situation. When Mansa Ram (PW 8) returned with hot water what he saw had alarmed him.

He is positive that doctor was standing naked while the appellant was scantily dressed in his kachha and banian.

The salwar of Nirmala (PW 4) had been half folded. How the appellant came in was when Dr Ramesh (accused 1) assured Mansa Ram and Nirmala, PWs 8 and 4 respectively, that he will cure Nirmala with the help of his guru who is none else than the appellant. Merely because it happened to be a Sunday, it does not mean there was no possibility of the appellant not being there.

12.There may be minor discrepancies in the evidence of Mansa Ram (PW 8), as rightly held by the learned Sessions Judge but they are natural. A tutored witness will depose in a parrot-like fashion. In any event, these discrepancies are not so material as to reject his testimony. Above all, the two rustic villagers Nirmala and Mansa Ram, PWs 4 and 8 respectively, could not have ever thought of foisting a false case, more so, when there was admittedly no enmity between the appellant and Dr Ramesh on one hand and these prosecution witnesses on the other. We fully concur with the findings of both the courts that the plea of defence has to be rejected.

13.No doubt, Ganga Ram (CW 2) would say that no complaint was preferred to him by Mansa Ram (PW 8) but positive case of Mansa Ram (PW 8) is he promised to take action but he did not do anything. Therefore, he had to go up to the Chief Minister and the higher authorities. It is this relentless pursuit which made the police register the case. The sentence cannot also be called excessive, under these circumstances of the case, when in complicity with Dr Ramesh (accused 1), the appellant abetted the offence of rape. It is not that he was a mere bystander or onlooker. In the circumstances narrated above, the scanty dress clearly will make him fall under the said two sections with which he is charged. "It is the apparel that proclaims." For all these reasons, we find no ground had been made out warranting interference. Accordingly, the appeal will stand dismissed.

496 The Judgment of the Court was delivered by N.P. SINGH, J.- Special leave granted in SLP (Crl.) No. 293 of 1993.

2. This appeal is on behalf of the State of Haryana for setting aside the judgment of the High Court, acquitting the accused-respondent Manoj Kumar, who had been convicted under Section 302 of the Penal Code and sentenced to undergo rigorous imprisonment for life, by the Sessions Judge, Rohtak.

3. The case of the prosecution is that on June 22, 1988, at about 7.00 p.m. Rohan (PW 14) and Chelan (deceased), the two sons of the informant, Col. Ajit Singh Saharan (PW 13), started for Rohtak, from the residence of the informant at New Delhi, on a motorcycle bearing No. HYU-5550, to meet their mother Shakuntala Saharan who was residing then at Ashiyana Green Road, Rohtak. They stopped at Bahadurgarh on the way at about 7.45 p.m. at a shop for refreshment. A Maruti car bearing No. HYU-9808 was parked and the two sons of the informant parked their motorcycle in front of the said car. In the meantime, the accused Manoj Kumar came and sat in his car aforesaid. But due to cycles and motorcycle aforesaid parked there, he could not take out his Maruti car and he started blowing the horn of his car continuously. He also started abusing loudly as to why those cycles and motorcycle had been parked there. As soon as Chetan heard abuses, he came to remove the motorcycle and asked the accused not to hurl abuses. There was exchange of hot words. Rohan also reached near the car, after parking the motorcycle, but exchange of hot words continued. The accused threatened both of them saying, "Come out of Bahadurgarh. I will see you." 497 Rohan retorted, "What you will see us outside? See us here." The accused repeated, "Come outside. I will kill both of you." Thereafter the accused went away, but Rohan and Chetan remained there in front of the said shop out of fear. On enquiry, Rohan and Chetan learnt that the name of accused was Manoj Kumar and he was the son of Surat Singh, who was a property dealer in Bahadurgarh. Rohan also noted down the number of the said car. After some time, they started on their motorcycle for Rohtak. On the way they saw the accused going from Bahadurgarh side to Rohtak. The car of the accused was going at a slow speed. Rohan who was driving the motorcycle overtook the car. As soon as the accused saw that Rohan and Chetan had gone ahead of him overtaking his car, he raised the speed of his car and started following the motorcycle. Rohan also increased the speed of his motorcycle out of fear. But they had to slow down the speed of their motorcycle when they reached near village Sankhol, because of the rush on the road. It is alleged that in the meantime accused Manoj Kumar overtook their motorcycle and again slowed down the speed of his car and gave them a signal to proceed ahead. It is further the case of the prosecution that as soon as Rohan tried to overtake the said car, accused swerved his car towards the right side, whereupon Rohan applied the brakes. Rohan stopped the motorcycle, thereupon accused Manoj Kumar who had gone ahead of them brought back the car in reverse gear towards Rohan and Chetan at a fast speed. Accused tried to bring Chetan under his car, but Chetan retreated. However, his left foot came under the wheel of the said car. Seeing this, some persons came near them. Chetan told them that the accused had run over his foot with his car and he was having great pain. After some time the accused again came back to the spot with his car. Persons who were present there, shouted that the said car was coming again. On this, Chetan climbed on the road divider and threw a stone on the said car. As Chetan had climbed on the road divider, the car went towards Bahadurgarh at a fast speed. Both the brothers again started towards Rohtak on their motorcycle.

After they traveled for some time, again the accused came with his car from behind at a fast speed and accused swerved his car towards left in order to hit the motorcycle. Rohan took the motorcycle on the 'kachha' portion of the road on the left side and stopped it. When the car of the accused proceeded towards Rohtak, they again started from there on their motorcycle. When they had covered some distance, it is alleged that Rohan again saw the car of the accused coming from the opposite direction i.e. from Rohtak side.

Out of fear they stopped the motorcycle on the side of the road, in front of a tractor trolley to save themselves. In the meanwhile, Chetan came down from the motorcycle and wanted to go behind the tractor-trolley to take shelter.

The accused hit Chetan who was on the road by the right side of his car with force. Thereafter the car proceeded in great speed grazing with the tractortrolley. Because of the impact, Chetari was thrown from the road inside the trolley.

Seeing the serious condition of Chetan, Rohan stopped a Matador, driven by one Vinod Kumar of Rohtak and asked him to take Chetan to the hospital because his brother's condition was serious. Chetan was put in the Matador and Rohan followed the Matador on his motorcycle. Chetan reached hospital at 9.30 p.m. and after half an hour he was declared dead. Col. Ajit 498 Singh Saharan the father of the victim was informed, who proceeded from Delhi to Rohtak. The first information report was lodged at about 11. 1 5 a.m. on June 23, 1988, by the father of the victim. It is said that Rohan, because of the shock, virtually remained unconscious throughout the night and at 9.00 a.m. he started narrating the details of the occurrence, to his father, the informant. In the first information report all the aforesaid facts relating to the occurrence were mentioned by the informant, on the basis of the information given to him by Rohan. On the date of occurrence the two brothers, Rohan and Chetan, were aged about 19 and 17 years respectively.

4.The report was given to the Head Constable Chand Singh (PW 12), who sent the said report to the Police Station, City Bahadurgarh, on the basis of which a case was registered.

The copy of the first information report reached the Additional Chief Judicial Magistrate on June 23, 1988 at 4.00 p.m. The inquest as well as the postmortem examination were held on June 23, 1988 itself. The motorcycle bearing No. HYU-5550 was produced before the Investigating Officer (PW 16) on June 23, 1988 itself. The Investigating Officer (PW 16) reached the place of occurrence. He picked up glass pieces from the spot as also blood-stained earth including the plastic strip "Maruti800", which was lying on the road.

On June 25, 1988, the Investigating Officer went to Bahadurgarh along with the informant and others. He received a secret information at about 4.15 p.m. that the accused Manoj Kumar was present in his house with the car and could be apprehended there. Whereupon all went to his house in Daya Nand Colony, Bahadurgarh, and at the pointing out by Rohan (PW 14), the Investigating Officer (PW 16) arrested the accused and took into possession the Maruti car No. HYU-9808. The car was badly damaged on the right side.

From inside the car, broken pieces of glass and stains of blood were recovered which were seized and put into sealed parcels. The clothes of' the accused were also seized. The Investigating Officer got the Maruti car photographed and sent the accused for medical examination as he was having injuries on his person. The Investigating Officer also got the car and the motorcycle mechanically examined by a motor mechanic. On comparison and the examination, the expert gave the opinion that the broken pieces of glass found on the road, were of Maruti Car No. HYU-9808. It was also found that the plastic strip with "Maruti-800" found on the road was of the same car, because the said strip in the car was missing at the time of seizure.

5.After investigation, report under Section 173 of the Code of Criminal Procedure was filed. The accused was put on trial. He was convicted for an offence under Section 302 of the Penal Code by the Sessions Judge, Rohtak, and sentenced to undergo rigorous imprisonment for life.

However, as already stated above, the High Court set aside the conviction and sentence of the accused-respondent and acquitted him of the charges levelled against him.

6.On behalf of the State, it was pointed out that there was no reason for the High Court to reject the evidence of Rohan (PW 14), the brother of the deceased whose presence at the time of the occurrence and his going from Delhi to Rohtak along with the deceased, was never questioned by the 499 accused during the trial. It was urged that the circumstantial evidence collected during investigation, fully supported the case of the prosecution.

7.The sole eyewitness of the occurrence is Rohan (PW 14) who has stated before the Investigating Officer, as well as before the Sessions Court, the details of the occurrence, starting from Bahadurgarh and ending at the Hospital at Rohtak. The other witnesses and circumstances only corroborate the statement of Rohan (PW 14). According to us, the High Court should have first examined as to whether in the facts and circumstances of the case, the evidence of Rohan (PW 14) should be accepted. It appears that the High Court mainly considered the questions as to whether there was any reasonable explanation for not informing the police during night, and as to whether Rohan (PW 14) was with Chetan (deceased) on the motorcycle when Chetan left Delhi for Rohtak. The special feature of the case is, that accused in his statement under Section 313 of the Code of Criminal Procedure admitted that his Maruti car was standing at the shop of one juice seller at Bahadurgarh. When he returned to the car, he found a motorcycle parked in front of his car. Then he blew the horn twice or thrice.

Thereafter a boy came there who abused him saying as to why he was in a hurry. Thereafter there was exchange of hot words between them. He also admitted that at village Sankhol somebody threw a stone at his car. No suggestion was given to Rohan (PW 14) that he did not accompany Chetan (deceased) on motorcycle from Delhi. The motive, as well as the genesis of the occurrence have been virtually admitted by the defence.

8.Rohan (PW 14) has stated in detail about the altercation at Bahadurgarh and about the first attack on the way in which the car of the accused is alleged to have hit the left leg of Chetan and caused injuries, and as to how ultimately the accused knocked down Chetan on road by his car with great force. He also stated that after hitting Chetan by the right side bonnet of the car, accused proceeded ahead grazing with the tractor and trolley. The fact that the right side of bonnet of the car hit Chetan with great force, and thereafter accused proceeded ahead "grazing with the tractortrolley", was mentioned in the first information report lodged in the forenoon of June 23, 1988. The car of the accused was seized on June 25, 1988.

The right side of the car was found to have been badly damaged. This was mainly due to the car grazing with the trolley. If Rohan (PW 14) was not with Chetan (deceased), how this fact that the car grazed the trolley after hitting Chetan, could have been mentioned in the first information report lodged on June 23, 1988, before the car was seized.

From a bare reading of the evidence of Rohan (PW 14), it shall appear that he has deposed in a very straightforward manner, giving every detail of the incident and as to how the accused-respondent made repeated attempts to crush them on the road, because of the altercation at Bahadurgarh.

Nothing has been elicited in the cross-examination. No part of the evidence of Rohan (PW 14) has been demolished. The High Court has simply quoted the evidence of Rohan (PW 14), but has given no reason why it should be rejected. The High Court has observed only "that the evidence of the eyewitness in the court was a belated 500 attempt to improve their testimony and bring the same in line with the Doctor's evidence with a view to support an Incorrect case".

9.On the person of deceased, 11 injuries were found during postmortem. Most of the injuries were on the left side of his body which is consistent only with the case of the prosecution that while Chetan was standing on the road, the accused knocked him down by the right side of the car, causing injury on the left side of Chetan. He was thrown on the trolley. The trolley was carrying agricultural implements which caused some of the incised wounds which were found on the person of Chetan during postmortem examination. During the cross-examination of Rohan (PW 14), the suggestions which had been given, on behalf of the accused, do not dispute the case of prosecution that both brothers left Delhi on the motorcycle. The High Court committed a grave error in rejecting the evidence of Rohan (PW 14). The High Court doubted the presence of Rohan (PW 14) with the victim, merely on the ground that Rohan did not reach the hospital along with the victim. Since the very beginning, the case of the prosecution is that Rohan (PW 14) got a Matador stopped on the way and asked the driver of the Matador to take his brother to hospital. Rohan followed the said Matador, on motorcycle. The distance between the place of occurrence and the hospital is about 35 kms. In normal course the Matador must have reached before Rohan reached the hospital on motorcycle. Similarly, the adverse inference drawn by the High Court, as to why Rohan (PW 14) did not inform the police regarding the occurrence throughout the night, according to us, is without justification. A young boy of 19 years, who escaped death even after several attempts on the road and ultimately found his brother becoming victim of the said attack, must have been completely broken. It was too much to expect from him that before his father arrived, he would have taken legal steps for prosecuting the respondent.

10.The prosecution has unfolded and disclosed the prosecution case in a most natural manner and there is no scope for imaginary doubt about correctness of the version.

Rohan (PW 14) is the sole eyewitness of the fatal knock down, by the accused. But, that cannot be held to be an infirmity of the prosecution case. A conviction can be based and the verdict of the court can rest even on the testimony of a sole witness, if the court is fully satisfied that such witness is a truthful witness and his presence at the time of occurrence has been proved beyond reasonable doubt. The evidence of Rohan (PW 14) is fully corroborated, by the damaged Maruti car found in the premises of the accused with the missing plastic strip "Maruti-800", which was found on the spot and collected by the Investigating Officer. The comparison of the broken glasses found on the road with the broken glasses found in the Maruti car of the accused; the damage found only towards the right side of the Maruti car; most of the injuries on the person of deceased being on the left side, according to us, go a long way to prove that Rohan (PW 14) has disclosed the correct version of the occurrence. No adverse inference can be drawn in the facts and circumstances of the present case, because Rohan PW 14 or an one did not lodge the first information 501 during the night itself. PW 13, father of the victim, who is a military officer, has stated on oath, that he got the information from Rohtak at about 2.00 or 2.15 in the night and he immediately proceeded for Rohtak and reached there at about 4.00 or 4.15 in the morning. He found Rohan (PW 14) in his house at Rohtak, but he was "besudh" (not in his senses) and was lying on a "Charpai". At about 9.00 a.m., in the morning he tried to know the full details from his son Rohan and then he lodged the first information report on the basis of the facts narrated by his son Rohan. We find hardly any reason to doubt the evidence of the informant (PW 13). It is true that time factor has an important role in context with lodging of a first information report. But, if the prosecution explains the delay satisfactorily, the Court is not expected to reject the whole prosecution case merely on that ground. The present case is one such case where taking all facts and circumstances into consideration, the prosecution case cannot be rejected on the ground that the first information report was not lodged during the night.

The agony of the mother of the deceased and other members of the family at Rohtak in absence of the father of the victim, who was then at Delhi, can be well appreciated. We are of the view that the prosecution has proved its case beyond all reasonable doubt and there is no scope for giving any benefit of doubt to the accused respondent.

11.On behalf of the accused-respondent, it was urged that even if the prosecution case is accepted at its face value, still the accused-respondent cannot be convicted for an offence under Section 302 of the Penal Code; at the most he can be convicted for an offence under Section 304 of the Penal Code. It is not possible to accept this contention.

The accused after leaving Bahadurgarh, made repeated attempts to knock down the two brothers by his car and ultimately he succeeded in doing so, when Chetan was standing on the road. The impact was so serious that Chetan was thrown from road to the trolley. It is fully established that accused intentionally caused such bodily injuries, as the accused knew to be likely to cause the death of Chetan. As such he committed the offence of murder within the meaning of Section 300, liable to be punished for an offence under Section 302 of the Penal Code.

12.Accordingly, the appeal is allowed. The judgment of the High Court is set aside. The accused-respondent Manoj Kumar is convicted under Section302 of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for life. He should surrender within one week from today, failing which all steps be taken by the concerned authorities to take him into custody, to serve out the sentence.

13.In view of the order passed in the above appeal, filed on behalf of the State of Haryana, there is no necessity to pass the same order in the special leave petition filed on behalf of the informant. The petition filed by the informant is held to have become infructuous and accordingly the same is hereby dismissed.

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