& Ors. Vs. State of Haryana  INSC 430 (11 June 2010)
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL
NO. 2496 OF 2009 NANHAR & ORS. .. APPELLANT(S) vs. WITH CRIMINAL APPEAL NO.
2497 OF 2009
O R D E R
Appellant five in number, in both the appeals, feeling aggrieved by the
judgment and order of conviction dated 7/5/2008 passed in Criminal Appeal
No.919-DB/2006 by Division Bench of High Court of Punjab and Haryana at
Chandigarh, arising out of the judgment and order of conviction dated
24/11/2006 and order of sentence dated 2 25/11/2006 pronounced by Additional
Sessions Judge, Bhiwani, convicting them for commission of offences under
Sections 302/149 of the IPC and awarding sentence to undergo RI for life,
together with fine of Rs.2,000/-, are before us challenging the same on variety
2. It may
be mentioned herein that initially charge-sheet was filed only against four
accused namely Nanhar, Virender @ Binder, Rampat and Rajbir @ Meda under
Sections 306/34 IPC. The name of the fifth accused Umed Singh was added
subsequently by the Trial Court on an application being filed by the
prosecution under Section 319 of the Code of Criminal Procedure and allowed on
3.6.2004. The order of committal makes it clear that the first four appellants
were charged and prosecuted for commission of offence under Sections 306/34
it was committed to Court of Sessions for being tried for the aforesaid offences.
on 5.10.2004 charge was framed by the learned Trial Judge under Sections 302/34
though Umed Singh was added subsequently as one of the accused but the charge
was not altered 3 to one under Section 149 of the I.P.C.
Thumbnail sketch of the facts of the case is as under:
Singh elder brother of Vijay deceased had filed an application on 27/2/2004
before the Superintendent of Police Bhiwani, alleging therein that he is
resident of village Malkosh Tehsil Charkhi Dadri, District Bhivani and has been
serving Armed forces for last 20 years. He has a residential house of his own
in Rewari Town wherein his family and aged mother are residing. His younger
brother Vijay, the deceased, was residing in Malkosh and was looking after the
agricultural land owned by them. One Bhajani wife of Roop Ram, of the same
village was on visiting terms to the house of Vijay as he was having small
flour mill in his house. She used to come for grinding of wheat.
course of time she developed family relations with Vijay. There was a rumour in
the village that she had forced her own daughter-in-law Kamlesh, wife of
Rampat, one of the accused herein, to have illicit relations with deceased
Vijay. In lieu whereof it was said that she had received a 4 sum of Rs. 1,000/-
from Vijay. It was also the case of the prosecution that Vijay and Kamlesh wife
of Rampat - appellant No.3 were seen in the field by many villagers and they
had a doubt about their relationship. In fact, their relationship had become
talk of the village. Rampat, the accused, came to know about the said
he along with other co-accused Nanhar Virender and Rajbir decided to finish
Vijay. On coming to know about the motive of the accused, Vijay had left
village Malkosh for some time.
4. It was
further mentioned that aforesaid four accused had told PW.11 Dalip, uncle of
deceased Vijay, about their intention. They wanted to take revenge with Vijay
on account of his relationship with Kamlesh, wife of Rampat. They further
informed that this illicit relationship will not be tolerated by them and
therefore they are planning to kill Vijay.
24/2/2004 PW.7 Sudesh, cousin of deceased Vijay informed PW.9 Kartar Singh, on
telephone that Vijay has been murdered and his dead body was lying 5 in his
field. It was further informed that some poisonous substance was administered
to Vijay by accused Nanhar, Virender and Rajvir and Rampat. He was asked to
reach Malkosh from Rewari immediately.
same night, Kartar Singh reached village Malkosh and found his brother dead. On
enquiries being made by him it was found from the villagers that he has been
done away with by administering poisonous substance to him by aforesaid
stood fortified from a small note said to be Vijay's dying declaration, written
on the inside paper of the match box, recovered from the pocket of his pants.
In the same, name of Meda Panch was also mentioned that they had mixed sulphas
in the drink which was administered to him and it is likely to take away his
said two pages written complaint dated 27.2.2004 was submitted by Kartar Singh
to Superintendent of Police, Bhiwani. A note was endorsed by the Superintendent
of Police to Deputy Superintendent of Police to look into the matter and do the
needful. DSP sent it to SHO of Police Station Bhond Kalan, who was directed to
6 investigate the matter, in accordance with law. The said written complaint
was treated as an F.I.R. and formal FIR came to be registered on 6/3/2004, that
is to say almost after 11 days from the date of occurrence of the incident.
7. It is
pertinent to mention here that on 24.2.2004, PW.11 Dalip while proceeding to
lodge the report had met ASI Raj Kumar (reported to be dead) at the bus stop of
Malkosh and had orally informed him about the incident. His statement to the
police was entered into Daily Diary (Rojnamcha) by Sub-Inspector Raj Kumar at
the Police Station.
such report being received by him, ASI Raj Kumar reached the spot and prepared
the inquest report Ext.PN. In column No.12, dealing with in what manner or by
what weapon of instrument such marks or injuries appeared to have been
inflicted, he recorded: "appears to have taken poisonous substance".
9. In the
same inquest report, ASI Raj Kumar recorded detailed version of Dalip as was
given to 7 him. According to Dalip, his nephew Vijay either took poisonous
substance himself on account of the fact that villagers had come to know about
his illicit relationship with Kamlesh, wife of Rampat or someone had forcibly
administered it to him. He further got it recorded that he had left his other
nephew PW.7 Sudesh at the place of occurrence for the safety of dead body and
had come to the Police Station. But since ASI Raj Kumar met him at the bus stop
of Malkosh, he is getting the said statement recorded.
Raj Kumar recorded further in the said inquest report that after getting this
information he went to the place of occurrence and found dead body of Vijay.
The same was lying in a straight posture, mouth and eyes were found to be
little open. He was wearing terricot pants along with ready made shirt but no
external injuries were found on the body of the deceased. Height of the
deceased was about 5' 9". Mouth was full of froth, a steel glass containing
poisonous substance, and two bottles containing water and little liquor were
found. However, Raj Kumar was not able to come to 8 definite conclusion with
regard to cause of death.
he thought it fit to wait till post- mortem report was received by him.
11. It is
pertinent to mention here that neither in the statement of Dalip nor in the
Inquest Report, there was any mention with regard to recovery of hand written
dying declaration said to have been ascribed by deceased, from his pants.
Recovery memo was prepared by Raj Kumar, ASI in presence of two witnesses
namely Dalip (PW.11) and Sudesh (PW.7). In the same it is said following
articles were seized from the spot:- one hand written note authored by deceased
Vijay, on the cover of the match box, two separate bottles, one containing
water and another containing little liquor, one steel glass with name of Rampat
ingraved. Earth containing white powder said to be poisonous substance was also
collected. They all were sealed in different parcels and taken into police
Translated copy of Ext.PG, dying declaration has been filed. The exact Hindi
version written by him in the slip reads as thus:
ke sath Sulphas pila rahe hai. Marenge."
by us) The said Inquest Report was prepared at the spot.
site plan prepared there, neither recovery of pocket telephone directory nor
recovery of pen was made. The statements of witnesses were recorded.
mentioned hereinabove, initially Raj Kumar, ASI (now dead) did not find
commission of any cognizable offence, thus he dropped the proceedings. Only
after registration of the FIR on 6/3/2004, the criminal machinery was set into
Post-mortem on the dead body of the deceased Vijay was performed by PW.4 Dr.
Report is marked as Ext.PD. Doctor has opined that deceased was aged about 32
years, well built, having a height of about 5' 6", appears to be more
appropriate than what was mentioned in the 10 Inquest. He has further
categorically recorded that on the dead body no bruises or wounds were found.
and stomach both were found to be empty.
of death was shown to be 36 hours prior to performing of post mortem. The cause
of death was shown to be excessive drinking of alcohol with poisonous
substance. On the strength of FSL report (Ext.P.1), poisonous substance was
found to be aluminium phosphide. According to the doctor, consumption of
excessive alcohol coupled with poisonous substance was sufficient to cause
death in ordinary course of nature.
the post-mortem report Exh. PE as also from the deposition of Dr. Kuldeep
Singh-PW.4, either deceased had met with homicidal death or committed suicide.
the question that crops up for consideration before us is whether it was the
act of the aforesaid five appellants, on account of which he met with the
homicidal death or it was Vijay himself, with an intention to save his status
and glory in the society, had consumed poisonous 11 substance, thereby
Prosecution in all had examined 12 witnesses on its behalf, to bring home the
charges levelled against the appellants. The accused had generally denied the
charges levelled against them and submitted that Vijay had committed suicide,
on account of his misdeeds. They pleaded innocence.
deposed that they have falsely been roped in by the prosecution on the strength
of manufactured and engineered documents. The appellants did not lead any
evidence on their behalf.
appreciation of evidence available on record, learned Trial Judge found them
guilty for commission of offences under Sections 302/149 of the IPC and awarded
them sentences as mentioned hereinabove. The appeal filed by them in the High
Court of Punjab and Haryana was dismissed and the findings recorded by the
Trial Court were affirmed and the judgment and order of conviction of the Trial
Court was maintained. Hence these appeals.
have accordingly heard learned senior counsel Mr. S.K. Dubey with Ms.
Mrinamayee Sahu and Sh. Ajay Beer Singh for the appellants and Mr. Kamal Mohan
Gupta, learned counsel for the respondent and perused the record. Evidence
adduced have also been critically and microscopically gone through by us.
anchor of the prosecution story has been the alleged dying declaration Exh. PG
said to have been written by deceased Vijay, on the inside paper of a match
box. English translation thereof reads thus:
Singh S/o Bhuru Rampat S/o Ruppa Binder Nanhar are drinking liquor by mixing
the Sulphas and would kill.
written in vernacular language and in Hindi, as mentioned earlier, reads as
under: "Daru ke sath Sulphas pila rahe hai. Marenge."
aforesaid dying declaration has been found to be sufficient by the two courts
below and appellants have been found guilty for commission of 13 offences under
Sections 302/149 of the I.P.C. and have been awarded sentence as mentioned
Whether the same would fall in the category of dying declaration and if so, if
it was sufficient to uphold the conviction and sentence awarded to them on the
strength thereof, is required to be examined by us.
critically going through the documents, not only Exh. PG but also the oral and
other documentary evidence available on record, we find the following lacunae,
shortcoming, lapses and deficiencies in the prosecution story:
said dying declaration has not been signed by deceased Vijay.
the appellants were really present when the said dying declaration was said to
have been written, then obviously they would not have allowed him to write the
said dying declaration.
recovery of pen was made from the site or from the person of the the deceased.
There is nothing either in the site plan 14 or in the recovery memo to suggest
that the deceased was able to get any platform on which he could have written
the said dying declaration.
inner pocket of the match box together with match sticks was not at all
is not established by the prosecution that the deceased was a smoker of bidi or
or bidis were recovered from the place of occurrence.
per the post-mortem report performed on 25.2.2004, the death had occurred
within 36 hours from the time of performing of the post-mortem, meaning thereby
that the incident must have taken place some time in the night.
There is nothing on record to show availability of electricity or any source of
light at the spot.
the Inquest Report prepared by ASI Raj Kumar (now dead), there is no mention
with regard to the recovery of the dying declaration Exh.
recovery of pocket index telephone directory.
Similarly, in the site plan prepared on the spot, there is no mention with
regard to the recovery of dying declaration, pen or pocket diary 15 from the
place of occurrence or from the body of the deceased.
finger prints either of the deceased or of the accused were taken, even though
the same were available.
Report of the Chemical Examiner dated 6.10.2004 shows that the packets were
received by him only on 10.3.2004 but no remnants of poisonous substance were
found either in the two bottles or in the steel glass but were found only in
the earth so collected from the place of occurrence. The poisonous substance
has been described as Aluminium Phosphide.
Except for the evidence of PW-7 Sudesh, PW-8 Ramesh, PW-9 Kartar Singh, PW-11
Dalip, who all happened to be closely related to the deceased, evidence of an
independent witness was not recorded, even though there is evidence available
to show that many villagers were available.
evidence of PW-7 Sudesh and PW-11 Dalip is highly contradictory inasmuch as
Sudesh has not deposed anything with regard to recovery of pocket index
telephone diary from the person of the deceased; whereas Dalip has
categorically deposed 16 with regard to recovery of pocket index telephone
diary from his possession.
pertinent to mention here that PW-7 Sudesh and PW-11 Dalip are the witnesses to
the recovery memo said to have been prepared by ASI Raj Kumar who is said to
have died during the pendency of the sessions trial, also does not record its
is extremely difficult to comprehend if the deceased was in a position to write
the dying declaration, more so, after having consumed excessive amount of
Alcohol mixed with poisonous substance. Fact of excessive amount of Alcohol
mixed with poison stands proved from the evidence of PW-4 Dr. Kuldeep Singh, who
had performed post-mortem (Exh. PD) on the person of the deceased.
post-moretm report further reveals that the deceased was aged about 32 years
having a height of 5 feet 6 inches with a robust body. It is inconceivable to
believe that if the appellants would have tried to administer him Alcohol mixed
with poisonous substance, he would not have resisted to the same or at least
would not have made any hue and cry. It also stands proved from the evidence of
17 PW-4 Dr. Kuldeep Singh and the post-mortem report that no bruises and
external injuries were found on the person of the deceased.
explanation has been offered by the prosecution as to why the blank pages of
the pocket index telephone diary were not used to scribe it, if the same had
been recovered from his possession.
The doctrine of motive could not be established by the prosecution at all. Thus
another ground of holding them guilty on account of motive, completely shatters
the prosecution story and falls flat.
(xix) It could
not be established that dying declaration and pocket index telephone diary
belonged to the deceased only. This aspect of the matter has not been
established by the prosecution.
if it stood established from the opinion of the Handwriting Expert that dying
declaration and pocket index telephone diary were in the same hand, still it
could not be established that it belonged to the deceased only.
Possibility of implanting of these documents cannot be ruled out.
The said dying declaration does not 18 inspire confidence, much less to hold
the appellants guilty for commission of the said offence.
fact, the salient features noted above with regard to the deficiencies are
sufficient, in our considered opinion, to come to the conclusion that the
Courts below committed grave error in holding the appellants guilty for
commission of offence under Sections 302/149 of the I.P.C.
intention to fortify our views, we would like to reiterate what this Court has
already held in its earlier leading judgments.
Almost 25 years back, this Court in celebrated judgment in Sharad Birdhichand
Sarda vs. State of Maharashtra, reported in 1984 (4) SCC 116, held in paragraph
151 and 161 thereof that it is well settled law that the prosecution must stand
or fall on its own legs and it cannot derive any strength form the weaknesses
of the defence. For ready reference, the said paragraphs are reproduced
It is well settled that the prosecution must stand or fall on its own 19 legs
and it cannot derive any strength from the weakness of the defence. This is
trite law and no decision has taken a contrary view. What some cases have held
is only this: where various links in a chain are in themselves complete than a
false plea or a false defence may be called into aid only to lend assurance to
the Court. In other words, before using the additional link it must be proved
that all the links in the chain are complete and do not suffer from any
infirmity. It is not the law that where is any infirmity or lacuna in the
prosecution case, the same could be cured or supplied by a false defence or a
plea which is not accepted by a Court.
Court, therefore, has in no way departed from the five conditions laid down in
Hanumant's case (supra). Unfortunately, however, the High Court also seems to
have misconstrued this decision and used the so-called false defence put up by
the appellant as one of the additional circumstances connected with the chain.
a vital difference between an incomplete chain of circumstances and a
circumstance which, after the chain is complete, is added to it merely to
reinforce the conclusion of the court. Where the prosecution is unable to prove
any of the essential principles laid down in 20 Hanumant's case, the High Court
cannot supply the weakness or the lacuna by taking aid of or recourse to a
false defence or a false plea. We are, therefore, unable to accept the argument
of the Additional Solicitor-General."
Similarly, when the case is based on circumstantial evidence, it has now been
well settled by several authorities of this Court that the chain of
circumstances should be complete in all respect and the pointer of guilt should
continuously be on the accused only. Any deviation of the pointer of guilt on
the accused would enure him the benefit of doubt.
doubt it is true that ASI Raj Kumar, who had prepared the Inquest Report had
died during the pendency of the trial, but no reasons have been assigned as to
why other police personnel present along with ASI Raj Kumar, were not examined.
They could have at least explained the true picture and proved recovery of
dying declaration and pocket telephone index diary from possession of deceased
Admittedly, from the evidence of PW-7 Sudesh, it has come on record that the
deceased Vijay was having bank account and he was also a member of some
society, where his standard signatures were available. But those standard
signatures were not made the basis for comparison of his hand-writing alleged
to have been found from his possession. In the case of Sharad Birdhichand Sarda
(supra), it has been dealt with elaborately as to how the chain of
circumstantial evidence has to be complete in all respect. The relevant
paragraphs 153 & 154 are reproduced herein below:
A close analysis of this decision would show that the following conditions must
be fulfilled before a case against an accused can be said to be fully
circumstances from which the conclusion of guilt is to be drawn should be fully
established. It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may be' established. There is
not only a grammatical but a legal distinction between 'may be proved' and
'must be or should be proved' as was held 22 by this Court in Shivaji Sahabrao
Bobade & Anr. v. State of Maharashtra(') where the following observations
it is a primary principle that the accused must be and not merely may be guilty
before a court can convict and the mental distance between 'may be' and 'must
be' is long and divides vague conjectures from sure conclusions.' (2) The facts
so established should be consistent only with the hypothesis of the guilt of
the accused, that is to say. they should not be explainable on any other
hypothesis except that the accused is guilty.
circumstances should be of a conclusive nature and tendency.
should exclude every possible hypothesis except the one to be proved, and 164
(5) There must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act must have been done
by the accused.
These five golden principles, if we may say so, constitute the panchsheel of the
proof of a case based on circumstantial evidence."
aforesaid cardinal principles with regard to the completion of chain of
circumstantial evidence for holding the appellants guilty could not be
established at all by the prosecution in the present case. With such broken
chain of circumstantial evidence, at many places, it would neither be safe nor
prudent to hold the appellants guilty.
from the above, it is extremely difficult for us to come to the conclusion if
Exh. PG can fall in the category of dying declaration at all or can be said to
be legally admissible. Even though we have categorically, minutely and with
microscopic eyes gone through the said document number of times, but it does
not inspire confidence, more so, the manner in which it has been written.
already mentioned hereinabove that after having consumed excessive liquor, it
would not have been possible for any one, much less for Vijay, to have written
the said dying declaration with so much of precision or with steady hand. In
our considered opinion, dying declaration should be such which should immensely
strike to be genuine and stating 24 true story of its maker. It should be free
from all doubts and on going through it, an impression has to be registered immediately
in mind that it is genuine, true and not tainted with doubts. It should not be
the result of tutoring. But dying declaration in the present case does not
fulfill these conditions.
HWV Cox Medical Jurisprudence and Toxicology, Seventh Edition, at page 936,
under title "Alcohols", deals with handwriting after consumption of
liquor. While coming to the general behaviour after excessive drinking, apart
from other things, it has specifically been noted: "Character of
hand-writing: There is often difficulty with letters, N, M and W."
the same book, it is further described that blood reaches all the organs,
mainly the brain and interferes with normal brain functions like judgment and
coordination of muscular movements. The blood alcohol level influences the
behaviour of the person. The amount of alcohol present in the stomach and
intestine has no effect but only indicates the 25 ingestion.
Obviously, it would go to show and we also come to the conclusion that after
going through the handwriting, as has been found by us in the alleged dying
declaration Ext. PG, it would have been extremely difficult for him to write it
as he could not have been in a mentally fit condition to have written the same.
Unfortunately, this aspect of the matter has neither been considered by the
learned Trial Judge nor has been adverted to by the Division Bench of the High
court and yet the appellants have been found guilty for commission of the
our considered opinion, the said judgment and order of conviction passed by the
Trial Court and upheld by the High Court, cannot be sustained in law. They are
accordingly set aside and quashed. As a necessary consequence thereof, the
appellants would be set at liberty forthwith, if not required in connection
with any other criminal case.
the appeals are allowed accordingly.
....................J (DEEPAK VERMA)
....................J (K.S. RADHAKRISHNAN)
June 11, 2010.