IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s) 1590/2011
Daya Ram & Ors. .....Appellant(s)
VERSUS
State of Haryana .....Respondent(s)
JUDGMENT
AMITAVA ROY, J.
Having failed to secure redress against their conviction under section
302 of the Indian Penal Code (for short hereinafter referred to as
IPC/Code) read with Section 34 of the Code, and the sentence consequential
thereto, from the High Court of Punjab and Haryana, at Chandigarh, the
appellants seek the remedial intervention of this Court. By the impugned
judgment and order dated 28.7.2010 rendered in Criminal Appeal No. 261-DB
of 2003 and Criminal Revision Petitioner No. 1560 of 2003, the High Court
has sustained the decision of the Additional Sessions Judge (Ad-hoc),
Hissar passed in Sessions Case No. 120/SC on 06.02.2003, sentencing the
appellants, following their conviction as above, to suffer imprisonment for
life and to pay a fine of Rs.500/- each, in default, to undergo further
rigorous imprisonment for six months. As alongwith the appellants, three
others, namely, Devi Lal, Chander Singh and Vidyadhar alias Didaru were
also tried but were acquitted, the Complainant / Informant Bajrang Bali
being aggrieved had filed Criminal Revision Petition No. 1560 of 2003,
which was dismissed. The High Court thus, in toto sustained the verdict of
the learned trial court on both counts.
2. We have heard Mr. P. N. Kush, the learned counsel for the appellants
and Mr. Arun Kumar, the learned counsel for the Respondent.
3. The prosecution case is traceable to the First Information Report
(for short hereinafter referred to as FIR) recorded on 25.8.2001 at 12.15
PM, on the version made by the informant Bajrang Bali to the effect that on
23.8.2001, the aforenamed Devi Lal, Chander Singh, Vidyadhar alias Didaru
and Daya Ram, sons of Sahi Ram, residents of the same village had abused
his brother Ashok and had threatened to kill him. On being informed about
this threat on the next day i.e. 24.8.2001, the informant had accompanied
his brothers Rohtash and Ashok to their field at about 8.30/09.00 PM to
look after the crops. According to the informant, as soon as they reached
the field, Vidyadhar alias Didaru, Chander Singh, Daya Ram, Madan and Devi
Lal sons of Sahi Ram and Hans Raj and Rohtash sons of Ami Lal all of the
same village came out from behind the standing Bajara crop thereat, being
armed with lathi, jailly and gandasa and unleashed a series of assaults on
Rohtash and Ashok. The informant alleged that the assailants had hid
themselves in the cover of the Bajara Crops and though he had accompanied
his brothers, he was behind them by 10/12 paces. He stated that on seeing
the attack, he concealed himself in the bushes nearby but in the moonlight
he could recognise all the seven assailants. He mentioned that all the
seven persons inflicted injuries on his brothers with their weapons
whereupon the injured fell on the ground. According to the informant, Daya
Ram thereafter fetched a cart (peter rehra) parked nearby and the
assailants removed his brothers from the field. The informant stated that
out of fear and alarm he kept himself in the hiding for the rest of the
night and only at the break of dawn, he went back to the village and
disclosed the above episode to his cousin-brother Sarwan and thereafter
embarked on a search for the injured. He stated that after a thorough
search, they could detect the dead bodies of Rohtash and Ashok lying in
front of the door of the Dhani (small hutment adjacent to the agricultural
field to enable the occupant to keep a vigil on the crops)of Sahi Ram, the
father of the appellants, Daya Ram and Madan. The informant after waiting
there in inconsolable anguish and pain, left the spot to inform the Police,
by leaving Sarwan Kumar to be on guard. He met the SHO, PS Adamur at the
bus stand at Darauli, and disclosed the whole incident. His statement was
recorded by the said officer and after endorsing an observation that
offences under Section 148/149/302/201 IPC had been committed, forwarded
the report to the police station Adampur whereupon FIR No. 207 dated
20.8.2001 was registered. Investigation followed, in course whereof, the
appellants alongwith Devi Lal, Chander Singh, Vidyadhar alias Didaru were
arrested and acting on their statements of disclosure, their weapons of the
alleged assault i.e. jailly, kulhari/Gandasa and lathis were recovered and
seized. The Investigating Officer also visited the site, performed inquest
over the dead bodies, prepared a report and despatched the bodies for post-
mortem examination. He drew a site-plan, collected samples of blood-stained
earth, seized amongst others a bucket, a chappal (Hawai) from near the
dead body of the Rohtash and one pair of leather slippers from near the
dead body of Ashok. The Investigating Officer prepared recovery memos and
sealed the seized items. He also recorded the statement inter-alia of the
informant, Bajrang Bali and others and eventually laid a chargesheet
against all the seven persons under the above provisions of the Code. The
matter was eventually committed to the Court of the Additional Sessions
Judge (Ad-hoc), Hissar and charge under Section 302/201/148/149 IPC was
framed against all the seven persons including the appellants, to which
they pleaded “not guilty”.
4. At the trial, the prosecution examined several witnesses including
the informant, Bajrang Bali, PW 3, and the doctors who had conducted the
post-mortem examination of the dead bodies and had examined the appellants
Madan Lal and Daya Ram. The prosecution also proved the report of the
Forensic Science Laboratory, Haryana on the samples of earth as well as the
bucket and weapons of assault forwarded to it for serological
investigation. It proved as well the post-mortem and medical reports
alongwith disclosure statements and got identified through witnesses the
seized weapons and other articles. After the closure of the evidence of the
prosecution, the accused persons were examined under Section 313 Cr.P.C. in
course whereof all of them pleaded to be innocent. One witness, namely,
Rati Ram H.C. was examined in defence.
5. The learned trial court on a consideration of the evidence on record
and after analyzing the rival contentions, convicted the appellants under
Section 302 IPC read with Section 34 of the Code and sentenced them as
above. However, being of the view that the complicity of the other three
accused persons, namely, Devi Lal, Chander Singh and Vidyadhar alias Didaru
was doubtful, as the lathis otherwise identified to have been used by them
did not wear blood-stains, it acquitted them on the benefit of doubt. It
rejected the defence plea of delay in lodging of the FIR, having regard to
the developments prior thereto. It dismissed the challenge to the
trustworthiness of the informant, rejecting the defence plea of his
indifferent conduct as a brother when the deceased were being openly
assaulted in his presence. According to the learned trial court, it was not
unusual for individuals to react differently in such situations and was of
the view that there had been no undue delay in filing of the FIR. The
learned trial court also discarded the defence plea of inconsistency
between the injuries on the dead bodies with the weapons of assault
allegedly used by observing that the same could be inflicted by blunt
weapons like lathi or jailly/kulhari, if used by the blunt side. The
narration of the incident as made by the informant, PW 3 was otherwise
accepted to be credible except to the extent of participation of the three
accused persons, namely, Devi Lal, Chander Singh and Vidyadhar in the
assaults. The learned trial court was of the view that the plea of the
defence that the informant as the eye-witness could not specify the
individual acts of assault, did not have any fatal bearing on the case of
the prosecution and returned a finding of guilt against the appellants on
an exhaustive analysis of the evidence on record, by taking note inter-alia
of the factum of seizure of their weapons of assault i.e. jailly, gandasa
and lathis on their disclosures and also the report of the Forensic Science
Laboratory, Haryana detecting human blood thereon. The sentence as above
was awarded to the appellants after according to them, hearing in
connection therewith. The High Court concurred with the learned trial court
on all the above aspects and maintained the conviction and sentence.
6. Before adverting to the competing assertions, it would be appropriate
to notice the relevant evidence in brief. The informant Bajrang Bali PW 3,
who claimed himself to be the eye-witness of the incident, is the brother
of the deceased persons. He stated on oath, that he had accompanied them to
the field in the fateful night of 24.8.2001. In his testimony, he mentioned
about the incident of threat extended by Devi Lal, Chander Singh, Vidyadhar
alias Didaru and Daya Ram to his brothers in the previous night of
23.8.2001 and reiterated his version as made in the FIR that on reaching
the field at about 8/8.30 pm on 24.8.2001, the appellants and three others
(since acquitted) did all together, inflict several assaults on his
brothers (deceased), after emerging from behind the Bajara Crop standing at
the place of occurrence. He mentioned that, the appellant Madan was armed
with jailly, while Daya Ram was with a kulhari. He testified, that others
were armed with lathis. He said that, he was behind his brothers by 10/15
paces and seeing the sudden attack, he out of panic, hid himself behind the
nearby bush to save his life. He stated, that it was a moonlit night and
therefore, he could identify all the accused persons. According to him, as
the injured fell on the ground after being assaulted, Daya Ram brought a
‘peter rehra’ whereafter, all of them lifted his injured brothers thereon
and left the field. The witness stated, that out of fear, he did not leave
the field and it was only in the next morning that he returned to his
village, and informed his cousin-brother Sarwan about the incident and then
both set off to search the injured. The witness stated, that eventually
they could detect the dead bodies of the two brothers near the ‘dhani’ of
Sahi Ram. He thereafter informed the police, who reached the place of
occurrence and apart from conducting the inquest on the dead bodies, took
other steps including seizure of a bucket, chappal etc. The witness also
identified the accused persons in court and amongst others the bucket,
seized from the place of occurrence.
7. In cross-examination, PW 3 stated, that the dhani of Sahi Ram was
about fifteen killas from the place of occurrence. To a suggestion put to
him by the defence, he stated that it was correct that the incident had
taken place 10/12 paces away from him. He however admitted, that it was not
possible to give the details of the assaults, by the accused persons on his
brothers. He reiterated that he did not come out or intervene out of fear.
8. PW 1 Dr. Krishan Kumar stated, to have examined Madan Lal on
25.8.2001 and to have detected a lacerated wound and an abrasion on his
body as detailed in his testimony. He stated that the injuries which could
be caused by a blunt weapon, were also possible by a fall on the ground.
According to him the injuries were six hours old.
9. This witness also stated that on 27.8.2001, he had examined Daya Ram,
who complained of pain in his left thumb, index finger and the adjoining
part of the hand. The witness stated that x-ray did not reveal any
fracture. The corresponding reports were proved by him. In cross-
examination, this witness reiterated that the injuries suffered by Madan
Lal could be possible by a fall from a height of four to five feet.
10. In his evidence, Dr Arun Gupta who had performed the post-mortem
examination on the dead bodies of the Ashok and Rohtash on 26.8.2001 at
about 9.50/10.15 AM, stated to have detected the following injuries.
Ashok:
“
1. Lacerated wound about 1.5 cm x 5 cm on the anterior surface of right
leg in middle. Clotted blood seen.
2. Contusion with deformities was seen on upper part of left hip joint.
On dissection injury No. 2 the neck of left femur was fractured and
clotted blood seen.
3. Lacerated wound about 4 cm x 5 cm vertical lines on the forehead
approximately in middle. On dissection of injury No. 3 the frontal
bone on right skull was fractured underlying brain tissues were
injured. Clotted blood was present.”
Rohtash:
“
1. Lacerated wound about 3 cm x 1 cm on the left side of the head just
above the eye brow.
2. Lacerated wound about 4 cm x 5 cm obliquely lying on the occipital
bone of the skull. On dissection of the injury occipital bone was
fractured underlying brain tissues were injured. Clotted blood seen.
3. On dissection of abdomen abdominal cavity was having blood. The right
lobe of liver was injured.”
10.1 This witness opined that in case of Ashok, the cause of death
was multiple injuries and injury to the vital organ of the body i.e. brain.
According to this witness, the cause of death of Rohtash was due to shock
and haemorrhage and injuries to vital organs of the body. The doctor
stated, in categorical terms, that the injuries were ante-mortem in nature
and sufficient to cause death in the normal course. According to him, the
time-lag between death and the post-mortem examination was approximately
36/37 hours and death could have occurred on 24.8.2001 between 8.00 to 9.00
pm .
11. PW 9 Umed Singh, who was on 25.8.2001 posted as SHO, PS Adampur and
to whom the incident was first lodged by Bajrang Bali PW 3, detailed the
steps taken by him in course of the investigation. While reiterating that,
the information first in time, about the incident, was lodged with him by
the informant, while he was stationed at bus stand, Darauli in connection
with patrol duty and that after recording the same he had forwarded it to
the police station for registration whereafter formal FIR was recorded as
Ex. P – 24, he deposed that, he went to the spot and amongst others
conducted inquest on the dead bodies and on completion of the formalities
despatched the same for post-mortem examination. He also prepared a site-
plan, made seizures of the bloodstained earth, chappal/sleeper lying near
the dead bodies, a bucket smeared with blood, and packed and sealed the
same and deposited all those with the police station. This witness in
categorical terms, referred to the statements of disclosures, made by the
appellants Rohtash, Devi Lal and Hans Raj leading to the recovery of their
lathis concealed in places mentioned by them and proved the statements and
also the recovery memos in connection therewith. The disclosures and
recovery were during 28.8.2001 and 29.8.2001. The witness also deposed
about the production of accused persons Chander Singh and Vidyadhar alias
Didaru in the police station on 23.10.2001 along with their lathis.
Similarly on the basis of the disclosure statements Ex. P-42 and Ex. P-43
made by the appellant Madan Lal and Daya Ram, one jailly and one
kulhari/gandasa were recovered from the fields near the dhani of Sahi Ram
which were accordingly packed and sealed. The witness stated as well, that
the seized articles/weapons of assault were forwarded to the Forensic
Science Laboratory, Haryana for serological examination and on the receipt
of the report and on a consideration of the materials collected in course
of the investigation, he submitted the chargesheet.
12. In cross-examination, the Investigating Officer amongst others
reiterated that dhani of Sahi Ram was the place from where the dead bodies
were recovered. He deposed further that after the registration of the FIR,
he reached the place of occurrence, at about 1.30 PM and after exhausting
all steps, forwarded the dead bodies to the hospital at about 4.30 PM.
13. The report of the Forensic Science Laboratory, Haryana referred to in
course of the arguments, does indicate that samples of bloodstained earth,
one metal bucket, one kulhari, one jailly, one wooden lathi and one bamboo
lathi had been forwarded for examination. The sample of earth, bucket,
jailly and the lathis were subjected to serological analysis which
confirmed human blood on jailly. However, vis-à-vis the earth and bucket,
the blood spot had disintegrated.
14. The learned counsel for the appellants has strenuously argued that
the prosecution having miserably failed to adduce any cogent and convincing
evidence in support of the charge, they (appellants) ought to have been
acquitted. According to the learned counsel, the prosecution case is
liable to be rejected on the ground of unexplained delay in the lodging of
the FIR. Further the version of PW 3 being wholly unreliable, on that
count as well, he being the only witness, the courts below ought to have
rejected the charge against the appellants, he urged. Mr. P. N. Kush
argued as well that PW 3 being the sole eye-witness, his testimony ought to
have been scrutinized with all rigour and as his version does unmistakably
fail such test, conviction of the appellants should not have been based
thereon. Without prejudice to these pleas, the learned counsel, has
insisted that the acquittal of three of the seven accused persons charged
with the same offence, did destroy the substratum of the prosecution case
and that therefore, the appellants are entitled to be acquitted.
15. As against this, the counsel for the Respondent has maintained, that
in view of the evidence disclosing the intervening events leading to the
filing of the FIR, the demur of delay in connection therewith is wholly
misplaced. He dismissed as well the criticism of the evidence of the PW 3
and asserted that this witness was wholly reliable and in view of the
detailed description of the incident, the conviction of the appellants
based thereon is unassailable. While contending that the medical evidence
on record and the ocular narration of the incident by PW 3 are clearly
consistent with each other, the learned counsel has argued, that the charge
against appellants is proved beyond reasonable doubt and thus no
interference with their conviction and sentence is warranted. According to
the learned counsel, the recovery of the weapons of assault on the
disclosures made by the appellants and the report of the Forensic Science
Laboratory, Haryana did corroborate their complicity and thus they had been
rightly convicted and sentenced by the courts below.
16. We have duly considered the evidence on record and also the arguments
based thereon. The case witnesses an incident of double murder of which PW
3 has been cited to be the only eye-witness. It is a matter of record,
that the deceased persons were the brothers of this witness PW 3, who
coincidently is also the informant. The courts below on a correct
assessment of his evidence, had concluded that he indeed was present at the
place of occurrence at the time of the incident. Though the participation
of the three of the accused persons, namely, Devi Lal, Chander Singh and
Vidyadhar alias Didaru was not accepted due to absence of any blood mark in
the lathis said to have been wielded by them, in our opinion in the face of
the overwhelming and impregnable testimony of this witness on the entirety
of the events relatable to the incident, it is not possible to extend any
benefit of doubt to the appellants on that count. Suffice it to state, that
the ocular account of the incident presented by the PW 3 has been in
graphic details. He did not vacillate in identifying the appellants. He
also could relate the weapons of assault used by them. The injuries
sustained by the deceased in course of the incident and those detected in
the post-mortem examination are compatible with each other. The seizure of
the weapons of assault vis-à-vis the appellants based on their statements
of disclosure and the report of the Forensic Science Laboratory, also
establish their irrefutable nexus with the crime. The plea of the
decomposition of the dead bodies to nihilate the medical opinion also lacks
persuasion. Noticeably, as per the testimony of the doctor performing the
post-mortem examination, the time of death does tally with the one of the
incident.
17. We are not inclined to reject the testimony of PW 3 on the ground
that his conduct had been unusual at the place of the occurrence, he having
kept himself aloof therefrom instead of attempting to save his brothers who
were under murderous attack by a group of assailants. As rightly observed
by the courts below that, on being confronted with such an unforeseen and
sudden situation, it is quite likely that individuals would react
differently and if the PW 3, being petrified by such unexpected turn of
events, being in the grip of fear and alarm, as a matter of reflex hid
himself from the assailants, his version of the episode, in our estimate,
is not liable to be discarded as a whole as the same is otherwise cogent,
coherent and compact.
18. As the eventual objective of any judicial scrutiny is to unravel the
truth by separating the grain from the chaff, we are of the opinion that in
the face of clinching evidence on record, establishing the culpability of
the appellants, their conviction and sentence as recorded by the courts
below does not call for any interference at this end. The participation in
the gory brutal attack of the appellants with the lethal weapons resulting
in death of two persons Ashok and Rohtash is proved beyond reasonable doubt
not only by the testimony of PW 3, the eyewitness, but also by other
evidence collected in course of the investigation and adduced at the trial.
On an overall appreciation of the materials on record, we find ourselves
in complete agreement with the findings recorded by the courts below.
19. In the wake of the above, the impugned judgment and order of the High
Court sustaining the decision of the learned trial court is affirmed. The
appeal lacks in merits and is thus dismissed.
……...........................J.
(Prafulla C Pant)
……….…………………J.
(Amitava Roy)
New Delhi,
Date: 02 July, 2015