Prithi Vs.
State of Haryana [2010] INSC 555 (27 July 2010)
Judgment
CRIMINAL
APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1835 OF 2009 Prithi ...Appellant
Versus State of Haryana ...Respondent
JUDGEMENT
R.M.
Lodha, J.
1.
This criminal appeal by special leave arises in the following way.
On October 3, 1990 at about 9.30 a.m., a certain Bhoop Singh, resident of
Badopal, owner of the vehicle (Jeep) bearing registration no. DNC-9324 asked
his driver--Hari Singh (PW-6) to bring Ami Lal from his Dhani situate in the
village Bhodia Bishnoian. PW-6 reached there and waited for about an hour. Ami
Lal and his brother Chhotu Ram (PW-9) then accompanied PW-6 in the Jeep. One
Sant Lal, who was present at Ami Lal's Dhani also sat in the Jeep as he also
wanted to go to Badopal. Ami Lal sat in the front seat near PW-
6. PW-9
and Sant Lal occupied the rear seat. On their return, while PW-6 was driving
the jeep towards village Bhana, he saw one white gypsy belonging to Jee Ram
(A-4) ambushed near the cremation ground. PW-6 stopped his vehicle. Immediately
thereafter A-4, Prithi (A-5)-- appellant herein, Ram Singh @ Guria (A-1), Ram
Singh @ Ram Dhan (A-2) and Mahabir Singh (A-3) armed with guns and rifles came
out of the bushes. A-4 fired a shot which hit the tyre of the jeep. A-1, A-2,
A-3, A-4 and A-5 then rushed towards the Jeep. A-4 fired shot at Ami Lal while
A-1 fired shot that hit Sant Lal. All the occupants of the jeep, viz., PW-6,
PW-9, Ami Lal and Sant Lal jumped out of the jeep. A-5 fired a shot at PW-6 but
that hit the jeep. PW-6, PW- 9 and Sant Lal ran away in different directions.
Ami Lal was overpowered by the attacking party by firing shots at him. A-5 2
fired another shot at PW-6 which hit him on the back of his left shoulder. The
attacking party took away Ami Lal (already dead by that time) in their vehicle
(gypsy). PW-6 after running for some time reached village Chhinder where one
Prithi Singh, son of Ram Pratap Bishnoi took him to Civil Hospital and got him
admitted and then on the intimation sent by the doctor, police reached the
Civil Hospital, recorded statement of PW-6 and FIR was got registered at police
station, Adampur for the murder of Ami Lal and other offences. The police after
completion of investigation submitted challan against A-1, A-2, A-3 and A-4.
The name of the appellant was put in column no.
2.
However, the Additional Sessions Judge vide his order dated August
27, 1993 summoned A-5 and framed charges against all the five accused persons
under Section 302 read with Section 149, Section 307 read with Sections 149,
148 and 201 of the Indian Penal Code (for short `IPC'). The prosecution
examined as many as 14 witnesses. The trial court (Additional Sessions Judge,
Hisar) vide his judgment dated March 20, 1993 convicted the accused persons
(A-1, A-2, A-3, A-4 and A- 5) for the offences punishable under Section 302
read with 3 Section 149, Section 307 read with Sections 149, 148 and 201 IPC
and sentenced them to undergo life imprisonment and different period of rigorous
imprisonment.
2. A-1 to
A-5 preferred criminal appeal before the High Court of Punjab and Haryana
challenging their conviction and the sentence. The High Court vide its judgment
dated September 12, 2008 dismissed the appeal and maintained their conviction
and sentence.
3.
A-1, A-2 and A-4 filed special leave petition [SLP(Crl.) No. 236
of 2009] against the impugned judgment which came to be dismissed by this Court
on January 23, 2009.
Insofar
as A-3 is concerned, he filed a separate special leave petition in which leave
was granted. His appeal was dealt with by us separately as he was juvenile on
the date of the incident and disposed of on June 25, 2010.
4.
Mr. Neeraj Kumar Jain, learned senior counsel for the appellant at
the outset disputed the factum of death of Ami Lal. He submitted that
admittedly the dead body of Ami Lal was not recovered nor any post-mortem was
conducted. He referred to the application for bail filed by some of the accused
persons 4 during the course of trial and submitted that one Ami Lal was
arrested in Rajasthan and produced before the Judicial Magistrate in Jodhpur
and while considering that application, the High Court granted time to the
police to verify whether Ami Lal was alive or dead but the investigating agency
failed to verify whether Ami Lal, who was produced before the Judicial
Magistrate, Jodhpur, was the same person who is alleged to have been murdered
or some other person. Dealing with the prosecution evidence, learned senior
counsel submitted that the deposition of PW-6 ought to be accepted either as it
is or should be rejected in toto. He submitted that since PW-6 was
cross-examined by the accused, there was no question of their winning over
PW-6. Learned senior counsel, thus, submitted that deposition of PW-6 should
have been rejected in its entirety. As regards the evidence of PW-9, Mr. Neeraj
Kumar Jain, learned senior counsel, vehemently contended that he was not
present at the time and place of incident and he has been planted as
eye-witness by the prosecution. He would submit that the narration of the
occurrence by PW-9 appears to be improbable; he is highly interested witness
being brother of 5 the deceased and his evidence ought not to have been
accepted by the trial court as well as High Court. Learned senior counsel
submitted that the appellant has been falsely implicated due to enmity between
Bhoop Singh and the deceased on one hand and A-4 (relative of the appellant) on
the other hand. In any case, learned senior counsel submitted that from the
prosecution evidence the presence of the appellant at the scene of occurrence
remains highly doubtful.
5.
On the other hand, Mr. Kamal Mohan Gupta, learned counsel for the
State of Haryana stoutly defended the judgment of the High Court. He submitted
that PW-9 has given graphic description of the incident; his presence is
established by the prosecution evidence, particularly deposition of PW-6 and
his evidence also gets corroborated from the fact that from the place of
incident one single barrel of .12 bore gun and also large number of cartridges
were recovered. Learned counsel would submit that merely because PW-9 remained
at the spot till the police came and did not call for help nor informed the
villagers does not show that he was not present. He submitted that different
persons react differently in different situations.
6.
6 Learned counsel relied upon a decision of this Court in Marwadi
Kishor Parmanand and another v. State of Gujarat1. Insofar as evidence of PW-6
is concerned, learned counsel for the State submitted that he supported the
prosecution case to the extent that he lodged the FIR; he was injured in the
incident; he saw white gypsy at the place of incident and some persons lying in
ambush fired shots as a result of which he sustained injuries and Ami Lal died.
He did not name the assailants and to that extent he did not support
prosecution case but that did not mean that his evidence was liable to be
rejected in toto.
Responding
to the contention of the learned senior counsel for the appellant that there
was nothing in the prosecution evidence to establish the murder of Ami Lal,
learned counsel for the State submitted that merely because the dead body of
Ami Lal was not recovered, it cannot be said that Ami Lal was not murdered. He
referred to the deposition of PW-9 who stated categorically that Ami Lal had
died due to the injuries received by him from the shots fired by the accused
and the accused had taken away the dead body of Ami Lal in their vehicle. In
this regard, learned counsel relied upon a decision of this Court in 1 (1994) 4
SCC 549 7 Sevaka Perumal and Anr. v. State of Tamil Nadu2. Mr. Kamal Mohan
Gupta strenuously urged that the trial court as well as the High Court have
recorded concurrent findings regarding the presence of the appellant along with
other accused at the place of incident and his participation and accepted the
prosecution case as credible and there is no justification at all by this Court
to reweigh and reassess the evidence and reach a fresh opinion as to the
innocence or guilt of the accused. Learned counsel relied upon the decisions of
this Court in Pritam Singh v. The State3, Naresh Mohanlal Jaiswal v. State of
Maharashtra4, Anwarul Haq v. State of U.P.5
6. Since
the question of factum of death of Ami Lal has been raised, we have to see what
is the proof of death of Ami Lal. In other words, the question relates to the
proof of `corpus delicti'. The expression `corpus delicti' has been subject of
judicial comments from time to time. The term, `corpus delicti' generally means;
when applied to any particular offence, the actual commission by some one of
the particular offence 2 (1991) 3 SCC 471 3 (1950) SCR 453 4 (1996) 11 SCC 547
5 (2005) 10 SCC 581 8 charged (Words and Phrases, Vol. 9A, 2nd reprint, 1976,
West Publishing Co.) In a murder case, `corpus delicti' consists of proof of
the death of a person alleged to have been murdered and that such death has
been caused by commission of crime by some one. It is sound principle in
criminal jurisprudence that one does not begin to inquire whether the prisoner
is guilty of a crime until one has established that a crime has been committed.
7.
Sir Matthew Hale (Lord Chief Justice of the Court of King's Bench)
in `The History of the Pleas of the Crown', Vol. II at page 290 (1800 Edition)
stated his opinion, `I would never convict any person of murder or
manslaughter, unless the facts were proved to be done, or at least the body
found dead'.
8.
The aforesaid statement of Sir Matthew Hale has not been accepted
in England, Ireland, New Zealand and other common law countries as it is. In
England the legal position is stated in 9 Halsbury's Laws of England, 2nd
Edition 449 thus:
where no
body or part of a body has been found which is proved to be that of the person
alleged to have been killed, an accused person should not be convicted of
either murder or 9 manslaughter, unless there is evidence either of the killing
or of the death of the person alleged to be killed.
9.
A six-Judge Bench of Irish Court of Crown in the case of Rex v.
Patrick McNicholl6 speaking through Sir James Campbell, C.J., with regard to
the statement of Sir Matthew Hale, said that it is not an inflexible legal
maxim, but is a wise and necessary caution to be addressed by the presiding
Judge to the jury. The Bench held that in a charge of murder, by proof of the
corpus delicti is meant proof of the factum of murder, and that the accused
committed the murder or took part in its commission. Such proof may be
established by the confession of the accused without proof of the finding of
the dead body.
10.
In The King v. Horry7, the New Zealand Court of Appeal explained
the legal position that at the trial of a person charged with murder, the fact
of death is provable by circumstantial evidence, notwithstanding that neither
the body nor any trace of the body has been found.
6 1917
(2) I.R. 557 7 1952 NZLR 111 10
11.
Insofar as this Court is concerned, it has been laid down in
Sevaka Perumal2 that it is not essential to establish corpus delicti; the fact
of the death of the deceased must be established like any other fact. This
Court said;
"......In
a trial for murder it is not an absolute necessity or an essential ingredient
to establish corpus delicti.
The fact
of death of the deceased must be established like any other fact. Corpus
delicti in some cases may not be possible to be traced or recovered. Take for
instance that a murder was committed and the dead body was thrown into flowing
tidal river or stream or burnt out. It is unlikely that the dead body may be
recovered. If recovery of the dead body, therefore, is an absolute necessity to
convict an accused, in many a case the accused would manage to see that the
dead body is destroyed etc. and would afford a complete immunity to the guilty
from being punished and would escape even when the offence of murder is proved.
What,
therefore, is required to base a conviction for an offence of murder is that
there should be reliable and acceptable evidence that the offence of murder,
like any other factum of death was committed and it must be proved by direct or
circumstantial evidence, although the dead body may not be traced."
12.
Sometimes, there may not be any distinction between proof of the
fact of the crime and the proof of the actor of it. The evidence of the corpus
delicti and the guilt of the person charged of an offence, many a time is so
inter- connected that one cannot be separated from the other. The 11 same
evidence often applies to both the fact of the crime and the individuality of
the person who committed it. The question now is, whether the prosecution
evidence establishes that Ami Lal was murdered and the commission of crime is
made out against the appellant.
13.
The key witness is PW-9. He has been presented by the prosecution
as an eye-witness. He has given full account of the incident. This witness has
been held credible by the trial court as well as High Court. The criticism to
the deposition of this witness highlighted by the defence has been considered
by the trial court elaborately and after finding no merit in such criticism,
the trial court after thorough analysis summed up with meticulous care the
evidence of PW-9 thus :
"26.....As
discussed above statement made by Chotu Ram has withstood the test of lengthy
cross- examination. There is nothing to dis-believe him..........
27. The
fact that Chhotu Ram remained at the spot till 3.30 p.m. When the police came
to the spot does not prove that he was not present at the spot.......So the
conduct of Chhotu Ram of concealing himself in the crop and not leaving the
place till the arrival of the police does not prove that he was not present at
the spot and does not make his statement unbelievable. The mere fact that he
did not call any one for help and did not visit 12 his Dhani after the accused
had left the place does not make his statement unbelievable.
28. Thus
from the evidence discussed above it has duly been proved that the statement of
Chhotu Ram it trust-worthy and from his statement it has duly been proved that
the occurrence took place in the manner and at the place as stated by the
prosecution."
14.
Insofar as High Court is concerned, the Division Bench extensively
considered the deposition of PW-9 in the following manner :
"We
have carefully examined the evidence of Chhotu Ram PW9, one of the eye
witnesses to the occurrence.
He has
given a vivid account of the entire sequence of events and has fully supported
the prosecution case.
The
defence has not been able to make any dent in his deposition during
cross-examination. He has clearly stated that on 3rd October, 1990, he along
with Ami Lal, Sant Lal and Hari Singh were going from village Bhodia Bishnoian
to village Badopal in a jeep bearing registration no. DNC-9324. When they were
crossing the cremation ground near village Bhana, a white gypsy was seen
standing near the cremation ground. Hari Singh stopped the jeep. Five accused
i.e. Jee Ram, Ram Singh son of Sahi Ram, Ram Singh son of Ram Karan, Pirthi and
Mahabir, emerged from the bushes.
Jee Ram
was armed with a rifle whereas other accused were armed with guns. All the
accused started firing on the jeep. A shot hit Ami Lal, who was sitting on the
front seat. The occupants of the jeep started running in different direction to
save their lives. Hari Singh and Sant Lal also received gunshot injuries.
However, they were able to run away from the spot. He further stated that he
concealed himself in the nearby crops and witnessed the entire occurrence from
there. Even when 13 all occupants of the Jeep, except Ami Lal, had run away,
the accused came near the jeep and fired at Ami Lal from a close range.
Thereafter, they lifted the dead- body of Ami Lal, put the same in the gypsy
and sped away from the spot. The police came to the spot at about 3.00 P.M. On
the basis of his information, a site- plan of the place of recovery was
prepared and 47 empties were recovered, out of which 45 were empty cartridges
of .12 bore, one missed cartridge of .12 bore and one empty cartridge of .315 bore.
The Investigating Officer also took into possession the pellets and the jeep
etc. This witness further stated that there was enmity between Ami Lal and the
accused as Ami Lal had murdered Bhagi Ram, who was brother of Jee Ram accused.
The accused, therefore, wanted to avenge the murder of Bhagi Ram.
Chhotu
Ram was cross-examined by the defence but he withstood the same and the defence
was not able to extract anything substantial from him during the
cross-examination. Chhotu Ram's version tallies with the initial version given
in the FIR and there is no reason to disbelieve the same. The factum of
recovery of so many empty cartridges from the scene of occurrence, the injuries
suffered by Hari Singh and Sant Lal, lend sufficient credence to the testimony
of this witness. His version that he was hiding in the fields is quite
believable as in such a case of firing by number of people, he would have no
option but to hide himself for fear of his life."
15.
It is, thus, seen that PW-9 has been accepted by the trial court
as well as the High Court as a reliable witness.
Once PW-9
is accepted, his evidence proves the fact of death of Ami Lal and also renders
the commission of crime by the accused (including the appellant) certain. It is
true that he is related witness inasmuch as he happens to be the brother of 14
the deceased but that, in our view, would not render his evidence unworthy of
credence. Nothing inherently improbable has been brought out which may justify
rejection of the testimony of PW-9. His conduct of having stayed behind the
bushes for about 4/5 hours and not informing the police or villagers of the
incident until the police arrived on scene at about 3.00 p.m. may look at the
first blush little out of the ordinary but on a deeper scrutiny, does not
appear to be unusual or exceptional. He was scared as he saw indiscriminate
firing by the accused who were armed with guns and rifles; his brother was dead
and removed by the assailants and the other two persons who were with him got
firearm injuries. It may be that any other person in his place might have
reacted differently but the conduct of PW-9 in any case does not seem to be
improbable. Moreover, his presence at the time and place of incident is also
established from the evidence of PW-6. In the FIR, it is recorded that PW-9 was
with PW-6 in the Jeep. The evidence of PW-9 further gets corroborated by the
recovery of a gun and empty as well as unused cartridges from the site.
16.
As regards the evidence of PW-6, it was vehemently contended by the
learned senior counsel for the appellant that his evidence should be either
accepted as it is or rejected in its entirety. PW-6 has deposed that he lodged
the FIR; he was injured in the incident; he saw white gypsy at the place of the
incident and that some persons came out of ambush and fired shots as a result
of which he sustained injuries and Ami Lal died. It is true that he did not
name the assailants. The fact that an incident occurred in which he sustained
injuries and Ami Lal died is amply established by his evidence as well. That
PW-6 sustained injuries is also established from the evidence of Dr. Ajay Kumar
(PW-1) who medically examined him immediately after the incident. Merely
because he did not name the assailants, his evidence cannot be thrown
over-board in its entirety.
17.
Section 154 of the Evidence Act, 1872 enables the court in its
discretion to permit the person who calls a witness to put any questions to him
which might be put in cross- examination by the adverse party. Some High Courts
had earlier taken the view that when a witness is cross-examined 16 by the
party calling him, his evidence cannot be believed in part and disbelieved in
part, but must be excluded altogether.
However
this view has not found acceptance in later decisions.
As a
matter of fact, the decisions of this Court are to the contrary. In Khujji @
Surendra Tiwari v. State of Madhya Pradesh8, a 3-Judge Bench of this Court
relying upon earlier decisions of this Court in Bhagwan Singh v. State of
Haryana9, Sri Rabindra Kumar Dey v. State of Orissa10 and Syad Akbar v.
State of
Karnataka11 reiterated the legal position that the evidence of a prosecution
witness cannot be rejected in toto merely because the prosecution chose to
treat him as hostile and cross-examined him. The evidence of such witnesses
cannot be treated as effaced or washed off the record altogether but the same
can be accepted to the extent their version is found to be dependable on
careful scrutiny thereof.
18.
In Koli Lakhmanbhai Chanabhai v. State of Gujarat12, this Court
again reiterated that testimony of a hostile witness is useful to the extent to
which it supports the 8 (1991) 3 SCC 627 9 (1976) 1 SCC 389 10 (1976) 4 SCC 233
11 (1980) 1 SCC 30 12 (1999) 8 SCC 624 17 prosecution case. It is worth noticing
that in Bhagwan Singh9 this Court held that when a witness is declared hostile
and cross-examined with the permission of the court, his evidence remains
admissible and there is no legal bar to have a conviction upon his testimony,
if corroborated by other reliable evidence.
19.
The submission of the learned senior counsel for the appellant
that the testimony of PW-6 should be either accepted as it is or rejected in
its entirety, thus, cannot be accepted in view of settled legal position as
noticed above.
20.
We have already noticed evidence of PW-9. He has been held
trustworthy by the trial court as well as the High Court. There is no reason,
much less justifiable one, for us to take a different view. He is real brother
of Ami Lal. The direct evidence of PW-9 leaves no manner of doubt that Ami Lal
is dead and the members of the unlawful assembly (including the appellant)
armed with deadly weapons are responsible for his death. In this view of the
matter, the submission of the learned senior counsel that one Ami Lal was
arrested in Rajasthan and produced before the Judicial Magistrate in Jodhpur
and that 18 police failed to verify, despite the direction of the High Court,
as to whether that Ami Lal was the same person who is alleged to have been murdered
or some other person and, therefore, factum of death of Ami Lal is not
established has no merit at all and is noted to be rejected.
21.
In the case of Anant Chintaman Lagu v. The State of Bombay13, M.
Hidayatullah, J. (as His Lordship then was) stated:
"Ordinarily,
it is not the practice of this Court to re- examine the findings of fact
reached by the High Court particularly in a case where there is concurrence of
opinion between the two Courts below. ...."
22.
In an appeal under Article 136 of the Constitution, this Court
does not enter into detailed examination and re- appraisal of the evidence,
particularly when there is concurrence of opinion between the two courts below.
We, however, carefully examined the evidence of PW-9 and the other evidence available
on record and we are satisfied that no error has been committed by the High
Court in affirming the conviction of the appellant for the offences punishable
under 13 (1960) 2 SCR 460 19 Section 302 read with Section 149, Section 307
read with Sections 149, 148 and 201 IPC.
23.
The appeal has no merit and is dismissed accordingly.
..............................J (R. M. Lodha)
.............................J (A. K. Patnaik)
New Delhi.
July 27, 2010.
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