Kishan Vs. State of Haryana  INSC 11 (6 January 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL
NOS.133-134 OF 2009 Hari Kishan .....Appellant Versus State of Haryana
These appeals are directed against the judgment of the Punjab and
Haryana High Court dated January 8, 2008 in Criminal Appeals Nos. 206 &
207-DB of 1998, confirming the appellant's conviction under section 302 of the
penal code and the sentence of life imprisonment awarded to him by the trial
court for having committed the murder of one Dinesh.
The case of the prosecution that led to the sentencing of the
appellant is based on the statement of Harkesh (PW-2), one of the brothers of
Dinesh, made before Bhup Singh SI/SHO of Sadar Palwal PS (PW-8) at 7.20 am on
June 24, 1995 at Palwal hospital where he had brought the dead body of Dinesh.
In his statement before the police Harkesh said that at about 6.15
in the morning he along with his two younger brothers, Suresh Kumar (PW-6) and
Dinesh (the deceased) was sitting on the chabutra of their baithak in village
Gailpur, 2 when Dinesh proceeded for his house to bring the clothes for getting
ready to go to Faridabad, where he was due to appear in the B. Ed examination.
As he reached the chaupal, where the lane turned, he was waylaid by the accused
Hari Kishan (the appellant) and Rambir who were armed with knives, Shyam Lal
armed with gun, Nain Pal and Kanwar Pal armed with lathis and Roshan and Nathi
son of Gurdayal who were empty handed. Roshan and Nathi exhorted the other
accused to kill Dinesh, saying that they would face the consequences. Hearing
this, Harkesh and Suresh ran to save Dinesh. Bhim Singh (PW-4) also came there
on hearing the noise. Even before Harkesh or his uncle Kanti Prakash reached
the spot, Nain Pal and Kanwar Pal struck Dinesh on his back with lathis causing
him to fall to the ground. As he lay on the ground, the appellant gave knife
blow on the left side of his chest. Rambir too gave knife blows to Dinesh. When
Harkesh and Kanti Parkash tried to save Dinesh, Rambir gave a knife blow to
Harkesh that hit him on the thumb of the left hand. Nain Pal and Kanwar Pal
gave Harkesh 4/5 lathi blows. Nain Pal also gave one lathi blow on the head of
Kanti Parkash. When Harkesh tried to save Kanti Prakash, Shyam Lal hit him on
the shoulder by the butt of his gun. He also shouted that anyone coming to
their victim's rescue would be shot dead.
As to the cause of the incident Harkesh stated that shortly before
the occurrence his younger brother Suresh was elected as the village Sarpanch.
He did not pay any heed to 3 the unreasonable demands of the accused and this
greatly annoyed them as they thought of themselves as the Choudhary of the
village. This had led to an altercation and an exchange of hot words between
the two sides on the previous evening but the matter was then patched up by
discussion. He finally stated that the accused in league with one another had
killed his brother Dinesh by giving him knife and lathi blows.
After the occurrence he brought Dinesh to the civil hospital,
Palwal where he was declared `brought dead'. Dr. Krishna Kumar (PW-3) who was
in the hospital on duty sent information in that regard to the SHO, PS Sadar
Palwal whereupon PW-8 came to the hospital and took down the statement of
Harkesh. He read his statement as recorded by PW- 8 (the SI police) and finding
it to be correctly recorded put his signature at the bottom. The statement of
Harkesh, as recorded by PW-8, was incorporated in a formal First Information
Report (FIR no. 286) drawn up at PS Sadar Palwal at 9.30 a.m. on the same day
for offences under sections 148, 149, 506 & 302 of the Penal Code. The FIR
was delivered at the residence of the area Magistrate on the same day at 12.20
p.m. through a special messenger, namely, constable Chander Bhan.
Harkesh and Kanti Prakash, who, according to the statement made in
the FIR, had received injuries while trying to save Dinesh were medically
examined by Dr. Krishna Kumar (PW-3) at 7.10 and 7.15 a.m. respectively on June
post-mortem examination on the dead body of Dinesh was conducted on the same
day at 12.45 p.m. by a team of three doctors of which Dr. Chandrika Malik
(PW-5) was also a member.
post-mortem report noted the following injuries on the person of the deceased:
Stab wound on left side of chest, measuring
medial to the left nipple in the 5th intercostal space. Size 2.5 cm x 1 cm
margins - upper marginal lacerated, lower margins (angled) obliquely placed; on
following the path of injuries upper border of rib (6th) is cut and then
piercing pericardium and entering the apex of the ventricle anteriorly (size
2.3 cm.) passing through cavity of the left ventricle and then going through
the posterior wall(size 2 cm) and entering the left lung.
Incised wound on left arm, middle part on lateral aspect, 1.5 cm x 0.25 cm,
margins inverted, skin deep.
Incised wound 1.5 cm x 0.25 cm on the left forearm on lateral aspect on upper part
3 cm below elbow, skin deep, margins inverted.
Incised wound 4 cm x 0.50 cm on middle part of thigh, lateral aspect. Skin
deep, margins inverted."
According to the post-mortem report, death was caused due to shock
and hemorrhage as a result of injury no. 1 which was ante-mortem in nature and
was sufficient to cause death in ordinary course of nature. Injuries Nos. 2, 3,
4 were found to be post-mortem in nature. It was further stated that time
elapsed between death and post-mortem was within 18 hours.
The police after investigation submitted charge-sheet against all
the accused named in the FIR and all of them were put on trial on charges under
sections 148, 302, 324, 323 read 5 with section 149 and section 506 of the
Penal Code. The appellant, Hari Kishan, was also charged under section 25 of
the Arms Act for possession and unlawful use of the knife and was tried
separately for that offence.
In the main case the prosecution examined eight witnesses out of
whom three, namely Harkesh (PW-2), Bhim Singh (PW-4) and Suresh Kumar (PW-6)
claimed to be eye witnesses. Of the rest, Dr. Kishan Kumar (PW-3) was the
doctor who had examined the injuries on the person of Harkesh and Kanti
Prakash, Dr. Chandrika Malik (PW-5) was a member of the team of three doctors
who had conducted post-mortem on the body of Dinesh, Bhoop Singh (PW-8) was the
SHO Sadar Palwal PS who had recorded the statement of Harkesh and had
investigated the case. The remaining two, Ashok Kumar (PW-1) and Ramesh Chand
(PW-7) were formal witnesses. The prosecution also produced some documents and
some material exhibits. The accused, of course, took the plea of false
implication but they did not lead any evidence in their defence.
On conclusion of trial, the trial court held the appellant Hari
Kishan guilty of killing Dinesh by giving a knife blow on the left side of his
chest and, accordingly, convicted him under section 302 and sentenced him to
imprisonment for life and a fine of Rs.5000/- and in default in payment of
fine, to a further period of imprisonment for one year. The trial court also
convicted accused Shyam Lal, Nain Pal and Kanwar Pal under section 323 of the
Penal Code 6 for causing simple injuries to Harkesh (PW-2) and his uncle Kanti
Parkash and sentenced them to imprisonment for the period already undergone by
them as under-trial and fine of Rs.1000/- each.
What is, however, of significance for our purpose is that the
trial court disbelieved a substantial part of the prosecution story. The trial
court did not accept the prosecution case that accused Nathi and Roshan were
present at the place of occurrence and, accordingly, directed their acquittal.
As regards Rambir, the trial court pointed out that the three incised wounds on
the person of the deceased that were attributed to him were, according to the
medical evidence, post-mortem in nature, that is to say, those three injuries
were inflicted after Dinesh was already dead. The medical evidence, thus,
clearly eliminated the participation of Rambir in the case. He too was,
therefore, acquitted. The acquittal of the three accused brought down the
number of the remaining accused to less than five. Hence, the aid of section
149 was no longer available to bring about the conviction of the remaining
three accused Shyam Lal, Nain Pal and Kanwar Pal under section 302 for the
shared common intention with the appellant Hari Kishan to kill Dinesh.
Apparently, that was one of the reasons for their conviction simply under
court further disbelieved the prosecution case that Nain Pal and Kanwar Pal had
given lathi bows to Dinesh on his back and observed that this part of the
prosecution story was 7 an addition to rope in the two accused and to bring
them within the mischief of section 149 of the Penal Code.
Apart from the three accused whose presence at the place of
occurrence was not accepted, the trial court also doubted the presence of two
out of the three eye witnesses, namely Bhim Singh (PW-4) and Suresh Kumar
(PW-6) at the time of occurrence. The trial court further held that even
Harkesh (PW-2), the only remaining eye witness, had mixed-up truth with
falsehood but his testimony was not liable to be discarded wholly since he had
himself received injury in the same occurrence. In regard to the injury sustained
by Harkesh, the trial court came to a truly amazing conclusion. It was the
specific case of the prosecution that the injury to Harkesh on the thumb of his
left hand was caused by a knife blow given by Rambir while he was trying to
save Dinesh and Harkesh in his deposition before the court also attributed that
injury to Rambir. Rambir, however, was held by the trial court to be not
present at the place of occurrence. But the injury on the hand of Harkesh was
certainly in existence and it was also proved by the medical evidence. The
trial court resolved the contradiction by fastening the injury to Harkesh too
on to the appellant Hari Kishan even though that was not the case of the
prosecution. The appellant Hari Kishan was, thus, held guilty also of causing
the knife injury to Harkesh and came to be convicted under section 324 in
addition to section 302 of the Penal Code. Under section 324 he was sentenced
to rigorous 8 imprisonment for one year. He was also convicted under section 25
of the Arms Act by a separate judgment of the trial court dated February 2,
1998 in Sessions case No. 28 of 1995 and sentenced to the period of
imprisonment already undergone as under-trial.
Against the two judgments of the trial court, three appeals were
filed in the High Court. One (Criminal Appeal No. 206-DB of 1998), by the
appellant and the three other accused convicted and sentenced by the trial
court as noted above in the main case; the second (Criminal Appeal No. 207-DB
of 1998), by the appellant Hari Kishan alone against his conviction under
section 25 of Arms Act and the third appeal (Criminal Appeal No. 379-DBA of
1998) was filled at the instance of the State of Haryana against the acquittal
of the three accused from all charges and the acquittal of the other three
accused from the main charge of murder. Along with the three appeals the
complainant also filed a revision (Criminal Revision No. 486 of 1998) agitating
similar grievances as in the State's appeal.
The High Court by the judgment and order coming under appeal
dismissed all the three appeals and the revision and, thus, upheld the
judgments of the trial court in all aspects.
Mr. J. L. Gupta, Senior Advocate, appearing for the appellant
assailed the High Court and the trial court judgments and contended that the
appellant's conviction for the offence of murder was not sustainable both in
law and on 9 facts. Mr. Gupta submitted that there were at least four circumstances
that falsified and completely demolished the prosecution case. First, there was
a patent contradiction between the prosecution case and the motive assigned by
it to the accused for committing the crime. Secondly, it was undeniable that
injuries were fabricated both on the person of the deceased and Harkesh, the
only eye witness whose evidence was accepted by the High Court and trial court.
Thirdly, the prosecution had indisputably tried to falsely implicate three out
of seven accused. Fourthly, the medical evidence completely belied the alleged
time and the manner of occurrence.
Elaborating the points Mr. Gupta submitted that according to the
prosecution the main cause of conflict between the two sides was the election
of Suresh Kumar as the village Sarpanch who did not pay any heed to the demands
of the accused. If that were so, the accused should have targeted Suresh Kumar
and not Dinesh. Suresh Kumar was admittedly present at the time of the
occurrence. He was unarmed and was also physically disabled, yet no attempt was
made to assault him and he got away without a scratch and in his place Dinesh
was killed against whom the accused had no animus.
Mr. Gupta further submitted that even according to the prosecution
case it was a chance encounter. The accused persons had no means to know that
Dinesh would be coming from his baithak to his house to pick up his clothes and
would be 10 passing through that particular spot at that particular time, so as
to ambush him there, differently armed with gun, knife and lathis.
Mr. Gupta next submitted that according to the prosecution case
Dinesh was first struck on his back by lathis causing him to fall down on the
ground. But in the post-mortem examination, no mark of injury of any kind was
found on the back of the deceased. The post-mortem report further showed that
three incised wounds (Injuries 2, 3, and 4) were inflicted on his body after he
was dead. Obviously, those three injuries could not be attributed to any of the
words, the complainant had fabricated the injuries on the dead body of Dinesh
with intent to make out a false case against the accused. Further, according to
the post-mortem report, the time elapsed between death and post-mortem report
was within eighteen hours. This, according to Mr. Gupta, clearly showed that
death had taken place sometime the previous evening and not in the morning of
Mr. Gupta further stated that the stab by knife (Injury No. 1)
that caused the death of Dinesh had pierced through his heart and would have
naturally led to profuse bleeding.
after receiving the injury the body of Dinesh was picked up from the ground by
Harkesh (PW-2) and Bhim Singh (PW-4) to place him in the truck. And yet in
reply to questions in the cross-examination Harkesh stated that his clothes or
the clothes of Bhim Singh were not stained with 11 blood. No blood stained
clothes of Harkesh or Bhim Singh were produced before the police.
All these circumstances, according to Mr. Gupta, strongly indicated
that the death of Dinesh did not take place in the manner and at the time as
claimed by the prosecution.
Mr. Gupta further submitted that the conviction of the appellant
was based solely on the testimony of Harkesh whose presence at the time of occurrence
was extremely doubtful. He once again referred to the medical evidence to
support his submission that Harkesh had not received the injuries in the
morning of June 24 when Dinesh was alleged to have been killed and hence, he
could not have been present at the time of occurrence and he falsely claimed to
be an eye witness of the occurrence.
On hearing Mr. Gupta and Mr. Alok Sangwan appearing for the State
and on going through the judgments of the High Court and the trial court and
the evidence on record we find that the submissions of Mr. Gupta are not
entirely without substance and at least some of the points raised by him
deserve serious consideration.
It is seen above that the trial court doubted the presence of Bhim
Singh (PW-4) & Suresh Kumar (PW-6) at the place of occurrence and did not
accept their testimonies as eye witnesses. Even in regard to Harkesh (PW-2),
the only eye witness remaining in the case, the trial court observed that he
had mixed up falsehood with truth. Nevertheless, it did not 12 reject his
testimony as a whole and accepted his evidence as regards the knife blow given
to Dinesh by the appellant because "he (PW-2) had some injuries in that
incident as is clear from the statement of Dr. Krishan Kumar (PW-3)" and
hence, the presence of Harkesh (PW-2) at the place of occurrence could not be
doubted. The High Court has also adopted the same approach and it has described
Harkesh as an "injured witness". Mr. Gupta questioned the very
premise that the injuries found on the person of Harkesh were caused in the
same incident in which Dinesh was killed and which, according to the
prosecution case, had taken place in the morning of June 24 and submitted that
the trial court and the High Court had completely misread the medical evidence.
According to the prosecution, the occurrence in which Dinesh was
killed took place shortly after 6.15 in the morning of June 24. Harkesh was
medically examined at 7.10 and Kanti Prakash at 7.15 am respectively, that is
to say, within an hour when the wounds/injuries on their person would be very
But the injury report of Harkesh disclosed as follows:
An incised wound on left hand between the thumb and index finger. 0.3 cm x 0.2
cm skin deep clotted blood was present on the wound.
contusions Parallel to each other present on the left shoulder and upper part
of chest, horizontally placed reaching on the upper arm anteriorally in the
area 8"x4" red in colour.
contusion on right upper arm on the meddle 1"x05" cm red in colour.
No. 1 was caused by sharp edged weapon and 13 injury No(s). 2 and 3 were caused
by blunt weapon.
injuries were simple, duration was 12 hours"
injury report of Kanti Prakash noted as follows:
An abrasion and contusion on the parietal region of scalp in the vertex in the
mid lone 11/2 x1cm blood was oozing.
injury was simple, caused by blunt weapon.
probable duration was 12 hours".
PW-3, the doctor who examined Harkesh and Kanti Prakash, in cross-examination,
deposed before the court as follows:
is correct that the injuries on both these injured have been caused probably on
23/6/95 between 6 PM and 8 PM."
Thus, according to the medical evidence, injuries on Harkesh were
caused on the evening previous to the morning of June 24, when Dinesh was
killed in the alleged occurrence.
takes away the basis on which he was accepted by the trial court and the High
Court as an eye witness notwithstanding his proclivity to mix up falsehood with
The submission that Harkesh had received the injuries on the
evening of June 23 and not in the morning of June, 24 gains credence from the
fact that an incident between the two sides had admittedly taken place on the
evening of June 23, 1995.
In regard to the incident on the evening of June 23, 1995, Harkesh
(PW-2) stated as follows:
23.6.95 there was an altercation between the accused and us and it was
compromised with the 14 interventions of the respectable of the village."
regards the incident on the evening of June 23, Harkesh further stated in his
PW was not present at the time of earlier altercation on the previous day i.e.
23.6.95. That altercation lasted for 2 minutes. About 50/60 persons had
collected including ladies had collected at that time. There are 4/5 houses
near the Chaupal where this altercation took place."
In the face of the medical evidence and the admitted position that
an incident between the two sides had taken place on the evening of June 23,
1995 it is difficult to accept that the injuries found on the person of Harkesh
were received by him in the morning of June 24. From this, either of two
inferences would logically follow. One, Harkesh was not present at the
occurrence in which Dinesh was killed in the morning of June 24; or the other,
the occurrence in which Dinesh was killed did not take place in the morning of
June 24 and he was not killed in the manner as suggested by the prosecution.
Both the inferences are equally damaging to the prosecution case.
Summing up the discussions made up, we have before us a case where
a substantial part of the prosecution story has been disbelieved and the
conviction of the appellant rests solely on the testimony of Harkesh (PW-2) who
does not seem to have particular respect for truth as observed by the trial
court. His credibility as an eye witness lay only in that the trial court and
the High Court assumed that he had received 15 injuries in the same occurrence
in which Dinesh was killed. As shown above that assumption does not appear to
be very sound and is not borne out by the evidences on record. In such a
situation, we find it highly unsafe to uphold and sustain the appellant's
conviction for the offence of murder. To us, it appears that the prudent and
safe course would be to give him the benefit of doubt.
We, accordingly, allow the Criminal Appeal No. 133/09 and set
aside the judgments of the High Court and the trial court and acquit him of the
charges under sections 302 & 324.
Appeal No. 134/09 relating to his conviction under section 25 of the Arms Act
was not pressed, presumably because the conviction no longer carries any
sentence. This is, accordingly, dismissed.
The appellant Hari Kishan is directed to be released forthwith if
he is not wanted in any other case.
.............................................J [ AFTAB ALAM ]
.............................................J [ DR. B.S. CHAUHAN
January 6, 2010.