Hari Vs. State of
Maharashtra  INSC 586 (23 March 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 669 OF 2007 Hari
...Appellant(s) - Versus - State of Maharashtra ..Respondent(s)
appeal has been filed by Hari s/o Mansingh Rathod impugning the judgment and
order of conviction passed by the Aurangabad Bench of Bombay High Court in
Criminal Appeal No. 523 of 2004.
appeal to the High Court was taken from a judgment dated 20.7.2004 rendered by
the First Ad-hoc Additional Sessions Judge, Aurangabad in Sessions Case No. 248
the Trial Court there were several accused persons. The Trial Court in its
judgment only convicted the appellant herein and accused No.2 - Baliram s/o
- Hari was convicted for an offence punishable under Section 302 of Indian
Penal Code and was sentenced to suffer rigorous imprisonment for life and to
pay a fine of Rs.100/- in default, simple imprisonment for ten days.
No.2 - Baliram was convicted for an offence punishable under Section 324 of the
Code and was sentenced to suffer rigorous imprisonment for three years and to
pay a fine of Rs.500/- and in default to suffer simple imprisonment for one
the accused were granted benefit under Section 428 of the Code and they were
acquitted of the rest of the charges.
accused persons were acquitted of all the charges.
case arises basically out of land dispute and the prosecution allegations are
On 9.6.2003 in the
morning hours, the complainant Santosh - P.W.1 was sitting in front of his
house at Parundi-Tada, Tq. Paithan. His father Khemsingh and brother Gulabsingh
were sitting at a cot in front of their house. At that time, Baliram Rathod and
the appellant came to the place.
Appellant - Hari
assaulted the complainant's father with a knife and Baliram Rathod - accused
No.2 assaulted the complainant's brother Gulabsingh with a knife. Being so
assaulted, the complainant's father and brother started running but at that
time several accused persons came in front of the complainant's house and
started pelting stones aiming at the complainant's father and brother.
Some of the stones
hit complainant's father's head and back. As a result of the knife blow on the chest
of Gulabsingh, there was profuse bleeding and the injured felt giddy and sat on
the noises, complainant's mother with some other persons came to the spot and
tried to stop the quarrel.
to knife blow, complainant's father died on the spot. Gulabsingh was taken to
the Government Hospital, at Pachod and was referred to the Ghati Hospital,
Aurangabad for further treatment.
- Shivaji, PSI attached to Rathod Police Station recorded the complaint of
P.W.1 - Santosh on 9.6.2003 and an offence came to be registered vide Crime No.
67/03. Thereafter, investigation was carried on and the accused were charged
for committing offences punishable under Sections 302 and 307 r/w 34 I.P.C. and
accused were also alternatively charged for offences under Sections 147, 148,
302, 307 and 504 r/w 149 of the Code.
statement of injured witness P.W.2- Gulabsingh was recorded. The dead body of
Khemsingh was sent for post mortem examination which was carried out by P.W.5 -
Dr. Narayan Dhumal, who noticed the following injuries on the body of
i. CLW on (Lt)
parietal region of scalp middle region 3 cms x 2 cms x 1 cm.
ii. Incised wound on
(Lt) side chest infra auxiliary region in the midline oblique. Blood oozing
through the wound 2 cms x 1 cms width of the chest wall.
opined that the injuries are ante mortem and on internal examination he found
that pleura and both the lungs were pale. Stab injury was there on the left
side of pericardium and clotted blood was found. There was also a stab injury
to the heart and to the base of left ventricle on lateral part 2 x = cms. and
the left ventricle of the heart had been pierced causing death. The opinion of
PW5 was that the death was due to cardio respiratory arrest brought about by
hemorrhagic shock as a result of stab injury to the left ventricle of the
heart. It is clear therefore, that the injuries which were inflicted on he
deceased are on vital parts namely on the scalp and on the chest which pierced
the left ventricle of the heart. These injuries are sufficient to bring the
case within Section 302 IPC.
learned counsel for the defence urged that the court should not have believed
the three PWs, who claimed to be eye witnesses, namely, PW1, PW2 and PW8 for
the reasons that they are all close relations of the deceased. It has also been
stated that there is admitted enmity between the parties.
The other ground
which was urged is that, there was delay in lodging the FIR. According to
prosecution version, the incident took place early in the morning hours and the
FIR was lodged at 1:30 p.m.
It was also stated
that there are certain injuries on the accused persons, which have not been
explained and, therefore, the genesis of the prosecution has been suppressed
and no reliance shall be placed on the same.
Court finds that the High Court has relied on the evidence of PWs.1, 2 and 8
and has noted that no reliance could be placed on the testimony of PWs.9, 10
and 11. In paragraphs 4, 5, 6 and 7 of the High Court judgment, the evidence of
PWs1, 2 and 8 have been discussed in detail. PW1 is the first informant who
sated that at about 8:30 a.m. on the day of occurrence, he was in his house and
deceased-Khemsingh and PW2-Gulab were also in their house and both of them were
sitting on a cot.
Accused No.4, who
owns the adjoining house was also sitting in front of his house on a cot. The
deceased asked accused No.4 to transfer certain land in the name of the
deceased. According to PW1-informant, in the consolidation proceedings the land
of the family of the deceased was entered in the name of the accused No.4 and
the land of the accused No.4 was entered in the name of the deceased. As a
result of the same, a dispute had cropped up. It also has come in evidence that
the land of the deceased was acquired for construction of dam and compensation
for the same was not yet received. Therefore, there was some land dispute
between the parties.
the date of the incident, when the deceased and the accused No.4 were
conversing on those lines, the appellant, who is the cousin of the deceased,
came to the spot and inflicted fatal knife injury on the deceased and PW2 was
also inflicted with an injury by knife by accused No.2 on his chest. As a
result of the fatal knife injury, the deceased died on the spot and PW1 took
PW2-Gulab to Ghati Hospital at Aurangabad for treatment. In respect of the
incident he has lodged a complaint to the police. In cross examination the
evidence of PW1 could not be discredited. PW2, the brother of PW1 and an
injured witness gave the same version of the incident. He has also stated about
injuries which he received and also the fact that he was taken to hospital by
PW1. He was initially taken to Government Hospital at Pachod and then referred
to Ghati Hospital, Aurangabad.
is the wife of PW1 and also claims to be an eye witness. According to PW8, her
father- in-law, Khemsingh and brother-in-law, who is PW2 and the injured
witness, were sitting in a cot in front of their house. She also repeated the
same version which is given by PW1.
Court finds that the evidence of PW1- the informant, PW2-the injured witness
and PW8 are virtually consistent in unfolding the prosecution case. Both the
Trial Court and the High Court found that the presence of PW1, 2 and 8 at the place
of occurrence was natural and nothing was elicited from them in cross
examination to show that these witnesses were elsewhere and not in the place
where the occurrence took place.
so far as the delay in lodging the FIR is concerned, the High Court has dealt
with the question in paragraph 12 of the judgment and has come to the
conclusion that immediately after the incident PW1 went to the police station
with PW2 and the Court finds that there is nothing wrong on the part of the
police in not lodging the FIR immediately and in giving greater attention to
ensure prompt treatment to the injured person.
This has come from
the evidence of PW12, P.S.I Shirsath, who revealed that initially when PW1 went
to the police station he recorded his complainant but the FIR came to be
registered on the basis of complaint of PW1 at 1:30 p.m. There was thus a delay
of few hours but this does not vitiate the prosecution case, rather this is
consistent with normal human conduct. It would be the effort of everyone to try
to first save the life of a severely injured person rather than spend time in
far as injuries on the accused persons are concerned, it has been recorded by
the High Court that accused persons never brought on record the nature of
injuries sustained by them. The injury certificates were not produced. PW1 has
not disputed that there is counter case which has been registered against them
and the same is pending in the Sessions Court. PW12 has also admitted that two
of the accused persons who were acquitted had sustained injuries but the nature
of injuries has not been brought on record. In the absence of the injury report
and especially in view of the facts stated hereinabove, it cannot be urged that
the prosecution tried to suppress the genesis of the case.
may be true that all the vital witnesses, namely, PW1, 2 and 8 are relations of
the deceased but that by itself cannot discredit their evidence. It is a fight
between the relations it has come on record that the appellant is the cousin of
the deceased. In such a case, the relations are likely to be the most
decisions have been cited at the Bar which need to be considered and explained.
About appreciation of
evidence of witnesses who are related to the deceased, learned counsel for the
appellant relied on a decision of this Court in 524. In that case the facts
were totally different and it was opined by the learned Judges, in the peculiar
facts of that case, that enmity and bad blood between the rival groups was
established beyond doubt. In that case no report was lodged with the police
regarding the occurrence and this Court looked into the evidence and opined
that the story about making an effort to lodge a report earlier was not true.
In that case the nambardar and the chowkidar who were alleged to have
accompanied PW 1 to the police station were not examined and there was a
categoric denial by PW 6 - Station House Officer about anyone reporting the
incident to him before 4.12.1989. This Court found that the High Court has not
at all noticed the facts. In the background of those facts, this Court held
that proper caution was not exercised by the High Court in appreciating the
highly partisan evidence adduced by the prosecution.
in the instant case, the factual scenario is totally different. Here the
occurrence took place within the house at the instance of the close relatives
and in such a situation only relatives would be the witnesses. Of course, in
the present case also there was some enmity in view of the land dispute but
that by itself is not a ground to discard the evidence of the witnesses, who
are relatives when their evidence is cogent and credible. Factually, the
decision of this Court in Avtar Singh (supra) stands on a completely different
the question of appreciating the evidence of witnesses, who are related, this
Court AIR 1953 SC 364, spoke very eloquently through Justice Vivian Bose. In
that case the learned Judge clearly laid down the law relating to appreciation
of evidence by relations with such lucidity that it deserves to be quoted:
...Ordinarily, a close relation would be the last to screen the real culprit
and falsely implicate an innocent person. It is true, when feelings run high
and there is personal cause for enmity, that here is a tendency to drag in an
innocent person against whom a witness has a grudge along with the guilty, but
foundation must be laid for such a criticism and the mere fact of relationship
far from being a foundation is often a sure guarantee of truth. However, we are
not attempting any sweeping generalisation. Each case must be judged on its own
facts. Our observations are only made to combat what is so often put forward in
cases before us as a general rule of prudence. There is no such general 14 rule.
Each case must be limited to and be governed by its own facts."
principle laid down in the aforesaid passage has been subsequently reiterated
by this Rajasthan - (1974) 3 SCC 698. Justice Beg, as His Lordship then was,
quoted the said passage in para No. 11 of the said report.
said principle was also followed by a Constitution Bench of this Court in
Masalti and The Constitution Bench speaking through Chief Justice
Gajendratgadkar approved the decision in the case of Dalip Singh (supra) and
held as under:
"14. ....But it
would, we think, be unreasonable to contend that evidence given by witnesses
should be discarded only on the ground that it is evidence of partisan or
Often enough, where
factions prevail in villages and murders are committed as a result of enmity
between such factions, criminal Courts have to deal with evidence of a partisan
type. The 15 mechanical rejection of such evidence on the sole ground that it
is partisan would invariably lead to failure of justice. No hard and fast rule
can be laid down as to how much evidence should be appreciated. Judicial
approach has to be cautious in dealing with such evidence; but the plea that
such evidence should be rejected because it is partisan cannot be accepted as
Thomas, speaking for this Court, others - (1999) 3 SCC 507, held that over
insistence on witnesses having no relation with the victim will result in the
criminal justice system going awry. In para 20, the learned Judge held that
when any incident happens in a dwelling house, the most natural witnesses would
be the inmates of the house and in such a situation "it is unpragmatic to
ignore such natural witnesses and insist on outsiders who would not have even
seen anything". The learned Judge further clarified;
prosecution can be expected to examine only those who have witnessed the events
and not those who have not seen it though the neighborhood may be replete with
other residents also'. The aforesaid observation fits in with the fact
situation in this case in as much as the incident took place within the
precincts of the house of the deceased and the relations are the only natural
(2007) 1 SCC 699,
this Court extracted the above passage in Dalip Singh (supra) in paragraph
No.12 of the report. The ratio in Dalip Singh (supra) has been reiterated by
this Court very recently in 2009 SC 157, in para 7 of the report.
find that in the instant case, the evidence of the eye witnesses, namely, P.W.s
1, 2, and 8 has been considered by the High Court with due caution and care
before accepting the same.
Therefore, we cannot
accept the contention of the learned counsel for the appellant that the
evidence of the aforesaid eye witnesses should be rejected just because they
are related to the deceased.
the other question, namely, non- explanation of injury on the accused persons,
learned counsel for the appellant has cited a Bihar - (1976) 4 SCC 394. In the
said case, this Court while laying down the principle that the prosecution has
a duty to explain the injuries on the person of an accused held that
non-explanation assumes considerable importance where the evidence consists of
interested witnesses and the defence gives a version which competes in probability
with that of the prosecution case.
while laying down the aforesaid principle, learned Judges in paragraph 12 held
that there are cases where the non-explanation of the injuries by the
prosecution may not affect the prosecution case. This would "apply to
cases where the injuries sustained by the accused are minor and superficial or
where the evidence is so clear and cogent, so independent and disinterested, so
probable, consistent and creditworthy, that it far outweighs the effect of the
omission on the part of the prosecution to explain the injuries."
Therefore, no general
principles have been laid down that non-explanation of injury on accused person
shall in all cases vitiate the prosecution case. It depends on the facts and
the case in hand falls within the exception mentioned in paragraph 12 in
Lakshmi Singh (supra).
the instant case no defence plea has been put up. Apart from that the High
Court found that the defence did not bring on record the injury report and the
nature of injuries was not made known to the Court.
the ratio in Lakshmi Singh (supra) is not attracted in the instant case. In
this context, this Court may refer to the decision and Anr. - (1975) 2 SCC 7,
which has been followed in Lakshmi (supra). In Bai Fatima (supra), learned Judges
have laid down the following principle in paragraph 17, which is quoted below:
"17. In a
situation like this when the prosecution fails to explain the injuries on the
person of an accused, depending on the facts of each case, any of the three
results may follow:
(1) That the accused
had inflicted the injuries on the members of the prosecution party in exercise
of the right of self- defence.
(2) It makes the
prosecution version of the occurrence doubtful and the charge against the
accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not
affect the prosecution case at all."
the opening words of the aforesaid paragraph 17, learned Judges were thinking
of a case where private defence was pleaded. In the instant case, no plea of
private defence was taken.
So here and
especially when the injury report is not on record, the third
"result" pointed in Bai Fatima (supra) would apply.
the aforesaid point, learned counsel for the appellant relied on a decision of
this 20 AIR 1998 SC 2554. In that case, this Court was considering the State's
appeal against an order of acquittal. It is well known that the considerations
which weigh with this Court in deciding a State's appeal against an order of
acquittal by the High Court are totally different from a case where there are a
concurrent findings both by the Trial Court and the High Court about the guilt
of the appellant.
a case leading to an appeal against acquittal, the Court is to consider whether
the view taken by the High Court is a possible view.
But that is not the
position in a case like the present one where there are concurrent findings of
guilt against the appellant. Therefore, the decision in Rajendra Singh (supra)
has to be considered in the facts of that case.
this point, reliance was also placed by the learned counsel for the appellant
on a decision 21 T.N. - (2002) 7 SCC 210. In that case plea of right of defence
was taken and the Court while considering the said plea laid importance on the
failure of the prosecution to explain the injuries.
In that case the
Court held as under:
the appellants had suffered injuries on vital parts of the body, even though
simple, the prosecution failed to give any explanation for such injuries. We are
not persuaded to accept the submission of learned counsel for the State that
the injuries being simple, the prosecution was not obliged to give any
explanation for the same. Having regard to the facts of the case the omission
on the part of the prosecution to explain the injuries on the person of the
accused may give rise to the inference that the prosecution is guilty of
suppressing the genesis and the origin of the occurrence and had thus not
presented the true version...."
the instant case, those considerations are not present. Private defence is not
pleaded and virtually could not be pleaded in the facts of this case and the
injury report was not brought on record.
the reasons aforesaid, this Court does not find that any error was committed by
the High Court in affirming the judgment of conviction passed by the Trial
Court. There is no merit in the appeal, which is dismissed accordingly.
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