& Ors Vs. State of Haryana  Insc 200 (29 March 2005)
Reddi & P.P. Naolekar
APPEAL NO. 958 OF 1998 P.VENKATARAMA REDDI, J.
four appellants herein who are brothers faced trial before the Additional
Sessions Judge I, Jind for murdering one Hemant Kumar at a central place in Safidon
town, on the night of 3.4.1996 at about 8.45 p.m. They were convicted under Section 302 IPC and sentenced to life
imprisonment. The High Court dismissed the appeals filed by the accused. Hence,
these appeals by special leave.
following is a brief account of the prosecution case and other relevant facts :
night of 3rd April,
1996, all the accused
attacked Hemant Kumar at Channi Chowk and stabbed him with knives. As a result
of stabbing, he received six injuries out of which two were in the chest
region. The fatal assault by the four accused was seen by the younger brother
of deceased-PW4, who was returning home from his watch repair shop. On being
informed by a passer-by on a bicycle, PW4 rushed to the spot and having noticed
from a distance of 30 ft. or so that the attack on the deceased was going on,
he raised an alarm. Hearing the cries, PW5-another relation of the deceased and
one Kapoor Singh who were at a nearby sweet shop joined PW4. On seeing all of
them, the accused fled. According to PWs 4 and 5, three accused carried knives
and the accused, namely, Kala carried `Neja' (which resembles knife).
injured person fell down on the spot and he was taken on a cot to the Civil Hospital, Safidon by the aforementioned three persons. At the
hospital, the doctor (not examined) declared him dead. The same doctor sent a rucca
(memo) to the Police Station, Safidon at about 9.50 p.m. The Sub-Inspector of Police-PW9 was going on a jeep by the
side of the hospital. The Ward Boy of the hospital handed over the rucca to him
PW9 then came to the hospital and after sometime, recorded the statement of PW4
at the hospital. He sent the same to the Police Station, on the basis of which
an FIR was recorded at 11.30
p.m., for an offence
under Section 302 read with Section 34 IPC. Copy was sent to the Judicial
Magistrate through a Constable and it reached him at about 1.00 a.m. In the said statement given to the police, PW4 named
the four accused as the assailants. PW9 held the inquest over the dead body in
the hospital and sent the dead body for post-mortem.
Medical Officer attached to the General Hospital, Jind did the post-mortem
examination at 9.15
a.m. on 4.4.1996 and
prepared the post-mortem report which is Ex.PA. PW9 could go to the scene of
occurrence at about 2.30
a.m. The delay was for
the reason that he tried to stop a reprisal attack by a mob to set fire to the
houses of the accused. He prepared a site plan. One Gobind Das produced all the
four accused persons involved in the offence in the night of 4.4.1996 before
PW9 while he was at Court Road Chowk. They were arrested and immediately
thereafter, the accused Kala produced a knife (Ex.P1). The total length of that
knife was 8 inches inclusive of 4" of handle and the width of the blade
was about 0.2 to 0.3 cms. PW10-Inspector of Police, CIA, was entrusted with
investigation from 6.4.1996 onwards.
recorded the statements of some witnesses. He applied for judicial remand of
the arrested accused. On the same day, PW10 took the knife seized from Kala to
the Medical Officer-PW1, who endorsed on the post-mortem report that the
injuries could be inflicted by that knife. On the basis of his investigation,
PW10 found that the accused other than Kala were innocent. Therefore, in the
report under Section 173 Cr.P.C., only Kala was shown as the accused for the
offence punishable under Section 302 IPC. However, all the four accused persons
were committed to Sessions. After examining the record, the learned Judge found
that there was a prima facie case to proceed against all the accused.
the charge was framed against all the accused under Section 302 IPC. Curiously,
Section 34 was omitted in the charge. On the basis of the evidence of the eye-
witnesses, namely, PWs 4 and 5, the accused were convicted under Section 302
motive of the accused is traced to an incident which had happened one and a
half years earlier when the deceased Hemant Kumar identified the accused as the
persons involved in the kidnapping of the daughter of one Niranjan Das.
However, the motive was held to be not proved by the trial court. The High
Court did not hold to the contra.
details of post-mortem examination may be noticed at this juncture. The
following injuries were found on the body of the deceased:-
Spindle shaped incised wound on left side of chest just lateral to left nipple
1.5 cm x 1 cm x 4 cm.
wound cut through skin, costal muscles, corresponding cut in pleura was
Incised wound (spindle shaped) 3 x 1 x 7 cm on the left side of chest 5 cm
below injury no.1 longitudinally placed, wound cut through shirt, banian,
Costal muscles, 6th and 7th intercostals space, left lung.
Incised wound (spindle shaped) 2.5 x 1 cm x 6 cm obliquely placed on left side
of abdomen 5 cm below the costal margin. The wound cut through skin muscle,
peritoneal membrane and a cut of 1.5 x = x >th of cm. on spleen was present.
Incised wound 4 cm x 1.5 cm muscle deep on the posterior lateral aspect of left
Incised spindle shaped wound on upper thigh of the size of 3 x 1.5 cm x 1cm. 15
cm below iliac crest.
Incised wound 3 cm x 1.5 bone deep on the palmer aspect of right thumb, bone
learned senior counsel for the appellant contended that it is a case of blind
murder which might not have been witnessed by anybody and the version of PWs 4
& 5 - the alleged eye-witnesses and close relations of the deceased is
unnatural and unbelievable. No explanation was forthcoming for not examining
the independent witnesses who would have been available at the place of
occurrence which is in a busy locality. The scene of offence has not been
established beyond doubt and the time of occurrence, the time of recording the
statement of PW4 and the FIR and the time of death are all doubtful. Recovery
of knife from the accused Kala is concocted, as held by the trial court. It is
pointed out that the pattern of stab injuries received by the victim only on
one side of the body shows that one or two persons would have inflicted
injuries but not as many as four. In this context, it is pointed out that the
2nd investigating officer-PW10, after recording the statements of certain
witnesses thought it fit to file the charge-sheet against one accused only,
namely Kala. However, by the order of the Sessions Judge, all the four were
charged on the ground that they were named in the FIR. Finally it is submitted
that in the absence of charge under Section 302 IPC read with Section 34, the
conviction cannot be sustained under Section 302 simplicitor. It is then
submitted that the offence does not in any case fall under Section 300 IPC.
learned counsel appearing for the State as well as the learned senior counsel
appearing for the informantPW4 who has been allowed by this Court to intervene
have countered the above arguments. It is contended by them that even in the
absence of specific mention of Section 34 IPC in the charge, the conviction can
still be sustained, that there is nothing to discredit the testimony of PW4 or
PW5, that the arguments relating to ante-timing of the FIR and the
improbability of participation of as many as four accused are without
substance. The injuries being sufficient in the ordinary course of nature to
cause death, all accused are constructively liable for the offence of murder
irrespective of which accused had inflicted the particular injury. It is
submitted that the concurrent findings of both the Courts cannot be legally
prosecution case rests on the evidence of PWs 4 & 5 who are related to the
deceased and who happened to be chance witnesses. Before scrutinizing this
evidence and testing its credibility, we have to advert to certain features in
the prosecution case which make a dent on the reliability of the prosecution
version. They are discussed hereunder :- Two days after the incident i.e. on
5.4.1996, the investigation was entrusted to PW10-Inspector, CIA at the
instance of Superintendent of Police, Jind. PW10 stated in cross examination
that he inspected the place of occurrence and examined the persons staying near
the place of occurrence and recorded the statements of such persons.
names of those five persons were given. Then he added that "from their
statements, it was revealed that Hemraj, Chunnilal and Omprakash were
innocent". He further stated that the investigation done by him was
verified by DSP.
he filed the final report showing only Kala as the sole accused. However, as
already noticed, all the four accused mentioned in the FIR were committed to
Sessions and the Sessions Judge framed charge against all of them under Section
302. PW10 did not choose to give all the relevant details of his investigation.
However, the version of this Investigating Officer itself casts a cloud on the
reliability of the prosecution case as unfolded by PWs 4 and 5 that four
accused were involved.
fact that no independent witness - though available, was examined and not even
an explanation was sought to be given for not examining such witness is a
serious infirmity in the prosecution case having regard to the indisputable
facts of this case. Amongst the independent witnesses, Kapur Singh was one, who
was very much in the know of things from the beginning. Kapur singh is alleged
to have been in the company of PW5 at a sweet stall and both of them after
hearing the cries joined PW4 at Channi Chowk.
one of those who kept the deceased on a cot and took the deceased to hospital.
He was there in the hospital by the time the first I.O.-PW9 went to the
hospital. The evidence of the first I.O. reveals that the place of occurrence
was pointed out to him by Kapur Singh. His statement was also recorded, though
not immediately but later. The I.O. admitted that Kapur Singh was the eye-witness
to the occurrence. In the FIR, he is referred to as the eye-witness along with
PW5. Kapur Singh was present in the Court on 6.10.1997. The Addl. Public
Prosecutor `gave up' the examination of this witness stating that it was
trial court commented that he was won over by the accused and therefore he was
not examined. There is no factual basis for this comment. The approach of the
High Court is different. The High Court commented that his examination would
only amount to `proliferation' of direct evidence. But, we are unable to
endorse this view of the High Court. To put a seal of approval on the
prosecution's omission to examine a material witness who is unrelated to the
deceased and who is supposed to know every detail of the incident on the ground
of `proliferation' of direct evidence is not a correct approach. The
corroboration of the testimony of the related witnesses-PWs 4 & 5 by a
known independent eye-witness could have strengthened the prosecution case,
especially when the incident took place in a public place.
of independent witness by itself may not give rise to adverse inference against
when the evidence of the alleged eye-witnesses raise serious doubts on the
point of their presence at the time of actual occurrence, the unexplained
omission to examine the independent witness-Kapur Singh, would assume
significance. This Court pointed out in Takhaji [(2001 6 SCC 145] ".if
already overwhelming evidence is available and examination of other witnesses
would only be a repetition or duplication of the evidence already adduced,
non-examination of such other witnesses may not be material. In such a case,
the court ought to scrutinize the worth of the evidence adduced. The Court of facts
must ask itself whether in the facts and circumstances of the case, it was
necessary to examine such other witness, and if so, whether such witness was
available to be examined and yet was being withheld from the Court. If the
answer be positive then only a question of drawing an adverse inference may
arise. If the witnesses already examined are reliable and the testimony coming
from their mouth is unimpeachable the Court can safely act upon it,
uninfluenced by the factum of non-examination of other witnesses. In the
present case we find that there are at least 5 witnesses whose presence at the
place of the incident and whose having seen the incident cannot be doubted at
all. It is not even suggested by the defence that they were not present at the
place of the incident and did not participate therein." One more aspect
which deserves notice is that at the alleged scene of offence, no blood-stains
were found by the I.O., though he made a search. The surmise of the High Court
that the blood stains at the public place would have disappeared in view of the
time gap between the incident and the I.O.'s inspection may not be correct,
especially, in view of the fact that it is a metal road, as shown by PW8 in the
site plan and it was night time. It is difficult to believe that traces of
blood would fade out by the time of the visit of I.O. This is one of the
circumstances that has to be kept in mind while appreciating the prosecution
is also a doubt regarding the time when the first information was received at
the police station. The FIR was registered at 11.35 p.m. on the basis of the statement of PW4 recorded at 11.15 p.m. at the hospital. However, as per the evidence of PW6
(Police Constable), the information regarding the occurrence was received in
the police station at 10.30 or 10.45 p.m. and thereafter the SI-PW9 accompanied
by him and other police personnel went to the hospital. Apart from the fact
that his evidence goes contrary to the version of PW9 that on receiving the
death intimation at the hospital gate, he went straight to the hospital and an
hour later he recorded the statement of PW4, a doubt is cast on the time and
source of first information. If the information was received at the police
station at 10.30 p.m. why was it suppressed? What are the
details of such information? These are the questions which remain unanswered.
weapons were recovered from any of the accused.
recovery of knife from Kala at the time of surrender has been rightly
disbelieved by the trial Court.
above factors would not have assumed much importance if the evidence of PWs 4
& 5 could be accepted without raising an eye-brow. However, two views are
possible on the point whether these persons had really witnessed the attack.
There is every reason to think that PW4, on being informed by a way-farer,
would have reached near the scene of offence almost after the attack was over.
possibility of seeing all the accused attacking the deceased with the knives
and 'Neja' from a distance of 30 feet or more, that too, in the night time, is
not safe to rely on his version that he had seen the accused with the
particular weapons in their hands. In this context, it may be noted that PW4
did not mention the distance from which he observed the attack. In the site
plan drawn to scale, the distance of the spot from where PW4 observed the
incident was given as 30 ft. It was night time- almost 9.00 p.m. and most of the shops were closed, as seen from the
evidence of PW4. PW4 or any other witness did not give any details about the
lighting in the vicinity.
from the site plan drawn by PW8, there was a tube-light attached to the
electrical pole situated at 20 feet distance. It would have been difficult for
PW4 at the night time to notice each of the accused carrying a particular type
of weapon, that too a small weapon like knife. But, PW4 came forward with the
version that all the accused except one, were carrying knives and the other was
he claims to have seen so clearly as to distinguish between a knife and `Neja'
at that juncture, when the attack would have been almost over and PW4 was
trying to evoke the attention of the people around. It is difficult to accept
the version of PW4 of having seen the weapon in the hand of each of accused and
the nature of the weapon. The reference to 'Neja' in particular appears to have
been introduced for explaining the injuries on the body of the deceased. It
seems to us that the picture given by PW4, as if he had seen each of them with
the knife or `Neja' seems to be an embellishment developed with the idea of
implicating all the brothers as the accused. His further version that PW5
having heard his cries joined him and witnessed the attack seems to be a story
invented for the purpose of introducing another eye-witness to corroborate his
version. The possibility of PW5 who was at a sweet shop hearing his cries,
joining PW4 and then observing the incident appears to be highly improbable. If
PW5 had already been there near Channi Chowk for purchasing sweets, he would
have noticed the commotion caused by the attack and would have seen the
assailants even before PW4 arrived at the spot. But his story is different.
Another factor which casts a doubt on the evidence of PWs 4 & 5 is that there
were no blood stains on their clothes, though allegedly, they placed the
deceased on cot and carried him to the hospital. Moreover, soon after his
brother was declared dead, PW4 did not go to the police station which was quite
close to the hospital to lodge a report. That is not a natural course of
conduct. It is on account of these doubtful features in the evidence of PW4
that the factum of non-examination of independent witness, though available,
consideration of the evidence on record and the broad probabilities, we come to
an irresistible inference that there is a reasonable possibility of some
accused who were not involved in the attack having been convicted. It is
difficult to sift the grain from the chaff. The High Court missed to notice
certain crucial aspects adverted to above. It is a case in which benefit of
doubt has to be accorded to the appellants. It is unnecessary to consider the
question whether in the absence of charge under Section 34 IPC, the conviction
can be sustained.
result, the appeals are allowed and the conviction and sentence of all the
appellants is set aside.