/2023 INSC 0801/ Criminal Appeal No s.2216 -2217 of 20 11 Pag e 1 of 20 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO S.221 6-2217 OF 201 1 HARILAL ETC. … Appellant (s) Versus STATE OF MADHYA PRADESH (NOW CHHATTISGARH) … R espondent J U D G M E N T MANOJ MISRA, J. 1. These two appea ls are directed against a common judgment and order of the High Court of Chhattisgarh at Bilaspur (in short, “the High Court ”), dated 17.02.2010, passed in Criminal Appeal Nos. 864 and 865 of 199 1, w hereb y the appeals of Harilal and Parasram @ Rangna th (the appellants herein) were dismissed and the order of the third Additional Sessions Judge, Bilaspur , dated 13.07.1991, passed in S.T. No.153 of 1990, convicting and sentencing the app ell ants to imp risonmen t for life under Section 302 2023INSC801 Criminal Appeal No s.2216 -2217 of 20 11 Page 2 of 20 of the Indian Penal Code , 1860 (in short, “I.P.C .”) was affirmed . Introductory Facts 2. Three accuse d, namely, A nshram, Parasram ali as Rangnath and H arilal , were tried for committing murder of E llahabadi ya alias Vijay (the de ceased) on 25.08.1989 at about 8.00 pm . Ba sed on information received , a first i nformation report (Ex.P -7) (in short, “the FIR ”) naming the afo resaid three accused was lodged by Smt. Ju gmatibai (PW -9) at P.S. Hirri, District Bilaspur (M. P.) on the next day of the inci den t i.e. on 26.08.1989 at about 10 am . On 26.08. 1989 itself , the inquest was conducted and the police collected blo od-stained earth /plain earth from the spot and also seized a lathi , which was l ying near the body of deceased . On the same day, the pol ice sho we d discovery of lathi, Baniyan , Lu ngi (loin-cloth) at the instance Anshram from hi s house . Similarly, discovery of lathi and clothe s at the instance of Parasram was disclosed from his house . The third accused , namely, Harilal , was arrest ed on 27.08. 1989 and on the s ame day , a lathi and clothes were al legedly discovered at his instance from his house . The dead body of the deceased was s ent for autopsy , which was conducted by Dr. S. K. Dutta (PW -8) on 27.08.1989 at 12.30 pm . PW -8 noticed Criminal Appeal No s.2216 -2217 of 20 11 Page 3 of 20 that ri gor mo rtis was present in low er limbs; dec omposition had started; the eyes were forced out of the sockets; ton gue was protruding between the teeth ; lips were swollen and everted; abdomen was distended; penis and scrotum were swollen; multiple skin blisters conta ini ng reddish fluid on the face and front of the trun k were seen and faecal matter had escaped. PW -8 observations in respect of the cadaver were as follows : - Ante -mortem External Injuries : - (i) Lacerated wound 3.5cm x 2.5cm x 0.5cm on left temporal regio n; (ii ) Lacerat ed wound 2.5cm x 1 cm divi ding the centre of the pinna of the left ear . Both the injuries were black and were surrounded by black clotted blood. (iii) Three contusions on one third upper portion of the left thigh in the side por tion: 25cm x 1 c m ; 12 cm x 1 cm ; and 7cm x 1 cm . Co lo ur of which had blackened Internal Examination : - Brain - Extradural haemorrhage on the left temp oral region in the form of localised clot Criminal Appeal No s.2216 -2217 of 20 11 Page 4 of 20 which ha d com pr ess ed a nd flattened the unde rlying brain . Che st - Fractures on 4 th, 5 th, 6 th, 7 th and 8 th ribs on both sides. Lungs - Contusion of both lungs on the anterior surfa ce. Pleural cavity contain ed black clotted bl ood. Hear t - Both the c ham bers of heart were empty. Cause of death - Sho ck due to in ju ries in t he brain and lungs. Duration : Time since death is 24 to 48 hours. 3. The prosecution examined as many as 15 witnesses. Th ey were broadly categorized by the trial court into three categories: - (i) eye -w itnesses of th e incid ent; (ii) w itnesses w ho reached the spot on getting information about the incident; and (iii) w itnesses who proved proceedings relating to in vestigation, medical e xamination, inquest, seizure m emos , preparation of site plan, etc. 4. The first category of witne sses w ere: PW -1 (K anhaiy a Lal ); PW -2 (Sitaram); PW -3 (Mohanlal); and PW -6 (Ganesh). Another witness , namel y, PW -4 (Ramanand), who was set up as a person who arrived at the spot on re ceipt of inf ormation of the inci dent, during his deposition, po rtray ed hi mself a s an eye - w itness of the incident. Criminal Appeal No s.2216 -2217 of 20 11 Page 5 of 20 5. Amongst the aforesaid category of witnesses, PW -1 was de clared hostile . When he was confronted with his previous statement recorded under section 161 of the Code of C riminal Procedure, 1973 (in short , “the Code ”) he state d that the p olice had for cibly taken his statement th ough he had not witnessed the incident. Consequently, the trial court found his testimony of no benefit to the prosecution . PW -3 was discarde d b y the trial court as unreliabl e because he was found in cons istent with his statement made during the cou rse of investigation. PW -4, who for the first time during examination in Court professed himself to be an eye -witness , was also found not relia ble as he too was incons istent wi th his pre vious statem ent recorded during the course of investi gation. Thus, on ly two eyewitne sses of the inci dent, namely, PW -2 and PW -6, were discussed in some detail by the trial court . 6. The trial court noticed that though PW -2 (Sitaram) supported the prosecutio n case as ag ainst accused H ari lal but he did not name the other two accused, namely, Anshram and Parasram . However, PW -6 who inculpated all the t hree accused was found wholly reliable by the trial court . T herefore, by placing reliance on hi s testimony, the trial court convict ed all the three accus ed . While doing so, t he Criminal Appeal No s.2216 -2217 of 20 11 Page 6 of 20 trial court found the tes timony of PW -6 duly corroborated by medical evidence as also by the circumstance of discovery of blood -stained lathi and clothes at the instance of the accused . 7. Agg rieve d by t he ir conviction , three separate appeals we re filed by each of the three accused . Criminal Appeal No. 866 of 1991 , which was preferred by Ansh ram , stood abated consequent to his death during pendency of the appeal. W hereas , the other two app eals, namely, Cr iminal Appeal Nos. 864 of 1991 and 865 of 1991 , filed by the present set of appellants were dismissed by the High Court by the impugned judgment and order . 8. We have heard Shri D.N. Go burdhun, l earned senior counsel , for the appellants ; and Ms. Prachi Mish ra, Addition al Advo cate General , for the State of Chhattisgarh . SUBMISSIONS ON BEHALF OF THE A PPELLANTS 9. The learned co unsel for the appellants submitted tha t the incident is o f late evening/ night wherea s the FIR was lodged next da y at 10 am, w hich is su ggestive of the fact that no one witnessed the incident and FIR was lodged after deliberation and t he prosecution story developed thereafter ; otherwise also, testimony of PW -2 and PW -6 is unre liable for the fo llowing reasons: Criminal Appeal No s.2216 -2217 of 20 11 Page 7 of 20 (i) PW -2 is a resi dent o f vill age Khapri , where as the inc ident occurred in village Kohroda. Acc or ding to PW -2, he had visited Koh roda in the evening t o watch television. There he witnessed the incident . After which, he left the village and in the evening itself he informed Smt. J ugmati bai (PW -9) , a Kot w arin (vil lage chowkidar) of villag e about the incident . However , PW -9 stated tha t she w as not informed by any person who m ight ha ve witnes sed the incident . This, according to the appellants ’ counsel , seriously dent s the credibility of PW -2. That a part, PW -2 only disclose d the name of H ari lal . Further, PW -2 does n ot state that the deceased was assaulted to such an extent that he would have expired , or had expired, on account of injuries sustained by him . (ii) PW -6 is not consisten t with his pr eviou s statement m ade during t he cour se of investigati on , inasmuch as during investigation he disclosed that the accused assaulted the deceased Criminal Appeal No s.2216 -2217 of 20 11 Page 8 of 20 with sticks (danda) but in his deposition in Court he stated that the accused had assaulted the dec ea sed wit h lathi . A lathi is much thicker and heavier than a dan da . That apart, PW -6 wa s not consistent in respect of the reason as to why he came out of his house to witness the incident. In his deposition in C ourt he had stated that ,- he was in his house at th e time of th e inci dent ; h e came out on alarm raised by mother of accused Parasram that E llahabadi ya alias Vijay (i.e., the deceased ) was beating her son Parasra m , which was inconsistent with his previous statement made during in vestigation wherein he had stated tha t he came out on hearing loud noises of a fight in the Gali (all ey ). Moreover, PW -6 disclosed t hat the incident occurred in front of the house of Anshram whereas the body of the deceased was fo und near a temple which was at a consid erable distan ce from the house of Ansh ram . Otherwise also, PW -6 m ade no effort to lodge a Criminal Appeal No s.2216 -2217 of 20 11 Page 9 of 20 report , or inform persons of the village . This conduct of his does not inspire con fidence in his testimony. 10. In the alternative , it was submitted that from the testimon y of prose cuti on w itnes ses it appears to be a ca se where the re was a street fight . The cause and motive for such street fight is not clear except that there existed some dispute with regard to a lady . Therefore , considering the nature of the weapons used , it would be a c ase f alling under one of the E xceptions of Secti on 300 I.P.C . H ence conviction under Section 304 Part -I I.P.C. would s erve the en ds of justice and their sentences might be reduced to the period of sentence already undergone as both the surviving accused (a ppell ants herein) have serv ed over 10 yea rs of sentence during the course of the trial / appeal . SUBMISSIONS ON BEHALF O F THE STATE 11. Per contra, the learned counsel for the State su bmitted that PW -9 (i.e. the informant) had deposed that the villagers gu ard ed the body enti re night and next da y morning FIR was lodged . In these circumstances , it ca nnot be said that the FIR is delayed and, therefore, cont rived. PW -2 is a natural witness who , on h is way return , witnessed the incident and informed the informan t. Ev en if PW -2 Criminal Appeal No s.2216 -2217 of 20 11 Page 10 of 20 did not nam e all the thre e accused in his depositi on , his deposition corrob orates the testimony of PW -6 with regar d to the manner in which the decea sed was assaulted by the accused . The testimony of PW -6 inculpates all the thre e a ccused an d is consistent wi th medical evi dence. Further, n othing has come out from the ir cro ss-examination to attribute any impro per motive on them to fal sely implicate the accused persons . Thus, there is no good reaso n to disbelie ve the said witnesses particularly when the trial co ur t and the ap pellate court has placed r elia nce on their testimony after testing the same on the strength of other materials/ev idence (s) on record. She also argued that the ocular ac count rende red by PW -2 a nd PW -6 is corroborated by the c ircum stance of discovery of lathi and clothes at th e instance of the accused and serologist repo rt confirms presence of blood on it . 12. In respo nse to the contention that the con viction of the accused could be altered from one punishable under section 302 IPC to one under sec tion 304 Pa rt -I, the le arned counsel for the State submitted that the injuries found on the body of the deceased reflects th at he wa s mercilessly beaten . Medical evidence indicates that there w ere not only head injuries but fracture of ribs as well ; that too, on Criminal Appeal No s.2216 -2217 of 20 11 Page 11 of 20 both sides . Tha t apart, no p lea was taken by the acc used persons to bring their case under any of the E xceptio ns of Section 300 of the I .P.C . He nce, t he accused have been rightly convict ed for the offence punishable under section 302 I.P .C. a nd the appeal s lack mer it. DISCUSSION AND ANA LYSIS 13. We hav e cons idered the ri val submissions and have perused the record. 14. In this case, we notice from the record that the trial court as w ell as the High Court while appreciating the evi dence have not properly addressed various aspects , name ly, (a) there is no clear cut motive proved against the accused except that there was some incident c oncerning a lady of the village; (b) PW -2 and PW -6 both state that the dece ased was assaulted in f ront of the house of one of the accused person s, namely, Anshram , but, the site plan (Ex. P -21 /P -22 ) does not disclose the house of Ansh ram and from the site plan as well as the testimon ies of PW -6, PW -9 (the informant) and police witnesses it is clear that dead body of th e deceased was found near a temple about 300 feet away from th e place where the deceased was allegedly assaulted; as to how the dead body reached there, the ocular account has no explanation though some Criminal Appeal No s.2216 -2217 of 20 11 Page 12 of 20 drag marks we re noticed by the i nvestigating offic er; (c) as per seizure memorandum (Ex. P -13), amongst other artic les, a lathi was seized by the police from the place w here the de ad body was lying - whose lathi it was , th e prosecution evidence is silent ; ( d) the articles i.e. lathi and clothes seiz ed at th e instance of the accused though were stained with blood , the serolo gist report could not confirm its origin ; and ( e) PW -2 sets up a s tory that he narrated the incident to PW -9 but PW -9, who is K otwarin (village C ho w kidar) of a neighbouring village , stat es that she was not informed b y an y eye witness , rather sh e arrive d at the spo t as a reacti on to the commotion . All these aspects were material as they were indicative of a mob v iolence on the deceased due to some incident concerning a lady of the village. 15. B earing the above aspects in mind, we shall now carefully examine the prosecution evidence to te st whether it inspires confidence and succeeds in proving the charge against the accused beyon d reasonable dou bt. 16. Bef ore we proceed to analyse the testimon y of the two material eye -witnesses of the incident (i.e., PW -2 and PW -6) , w ha t is importan t to note is that as per the ocular account of PW -2 and PW -6, the assault on the deceased took place between 7 pm Criminal Appeal No s.2216 -2217 of 20 11 Page 13 of 20 and 8 pm o f 25. 08.1 989 . However , neither PW -2 nor PW -6 lodged the FIR . Rather, a named FIR was lodged on 2 6.08. 1989 at 10 am by PW -9 i.e., Kotwa rin (village C ho w kidar ) of neighbouring village Khapri , even though she was not an eye witness . In these circumstance s, the s tatement of PW -9 assumes importance to ascertain the source of her information . Unf ortunately, neither the trial court nor the High Court have careful ly co nsidered the deposition of PW -9. 17. PW -9, in her deposition, stated that she is K otwarin of village Kharpi and Kotwar of vil lage Kohroda (i.e. , the place where incident occurred) is some other person. E lla habadi ya @ Vijay (the deceas ed) was a res ident of her village. O n the night of th e in cide nt, at about 9 pm, while she was taking a ro un d of her own villag e, she heard lo ud noise s coming from vil lage Kohroda. Fellow vi llagers Lulwa and Sudhwa ask ed PW -9 to go to village Kohroda. When she went to village Kohroda, she not iced the dead bod y of E llahab adi ya lying near Rupau temple . Upon fi nding the dead body there , she w ent to inform the village Chowk idar of Kohroda, woke him up and brought him to the place where the dead body w as lying. Thereafte r, the body was guard ed throu gh the Criminal Appeal No s.2216 -2217 of 20 11 Page 14 of 20 night with the help of villagers an d next day morning, FIR was lodged at P .S. Hirr i. During cross -examination , PW -9 spe cifically stated that she was not informed by any person that he had witnessed the dec eased being b ea ten . She also specific ally state d tha t neith er Parasram nor Sitaram came to inform her about the inci dent. 18. The statement of PW -9 is of significance fo r mul tiple reasons . F irst, that PW -2 did not inform her about the ni ght inciden t as is alleged by PW -2 in his deposition ; sec ond, th e body of the deceased was fo und near the te mple and was kept there overnight ; an d third, if no one had told PW -9 about t he incid ent , why a named FIR was lodged. 19. Although there might not have been a specific question put to PW -9 as regards t he delay in lod ging th e FIR but the fact that it was a delayed FIR cannot be ignored . W hen an FIR is delayed , in absence of proper explanati on , the courts must be on guard and test the evidence meticulously to rule out possibility of embellishment s in the prosec ution story , inasmuch as delay gives opportunity for deliberation and guess work . More so , in a case where p robability of no one witness ing the incident is high , such as in a case of night occurrence in a n o pen place or a public street . Criminal Appeal No s.2216 -2217 of 20 11 Page 15 of 20 20. Bearing the above principles in mind , w hen we test the deposition of PW -2 against the weight of PW -9’s testi m ony , the statement of PW -2 to the effect tha t afte r witnessing the incident, he left t he s pot and informed PW -9 appears unworthy of acc eptance . That apart, PW -2 does not inculpate all the three accused . He only inculpat es Harilal. In this regard , PW -2 is incons istent with his previous statement inasm uch as in his previous state ment , with which he was confronted, h e had inc ulpate d all the three accuse d whereas in his deposition in Court he state d that he had not st ate d before th e investigating officer that both Anshram and Harilal were assa ulting the deceased . Moreover, PW -2 does not disclose the seriousne ss of the assault on the deceased. He does not state tha t the deceased was seriously inj ured by the blo w s infl icted on him . Therefore, his statement is inc onclus ive as regards the assault being the cau se of death. Rather, it leaves room for a possibility tha t the assault which he witnessed was just the beginning of a mob assault on the deceased concerning his involvement with a lady of the village . M ore so , when the dead body of the deceased was found 3 00 feet awa y from th e place where the deceased was allegedly assault ed . Further, PW -2’s statement in respect of num ber of persons assaulti ng Criminal Appeal No s.2216 -2217 of 20 11 Page 16 of 20 the deceased ap pears inconclusive . Taking the above into account and having regard to the fact that PW -2 is a chanc e witne ss, not a resident of the vill age where the incident occurred , and his s tatement was inconsistent with his previ ous statem ent , in our vi ew, it w ould be unsafe to rely on PW -2 to convict the accused for the offence of murder. 21. In so far as PW -6 i s conc erned, he too is a chance witness , inas much as h e was no t pre sent at the spot when the assault on the deceased started . According to hi m , he came out to witness t he incident when an alarm was rai sed by mother of Para sram , one of the accused, that E llahab ad iya (the deceased) was beating her s on. Acco rding to PW -6, when he cam e out, he saw all the three accused assaulting the deceased wi th lathi in fro nt of the house of Anshram. He does not s tate t hat the de ceased was armed and had attacked the accused . The deposition of PW -6 that he came ou t to witness the incident on alarm raised by accused Pa rasr am ’s mother that his so n is being be aten by E llahabadi ya (the deceased) is inconsistent with his previous statement made dur ing the c ou rse o f inve sti gation , with wh ich he was confronted, wherein he stated that he came out on hearing loud noises coming from the street in front of the house of Anshram . His previous Criminal Appeal No s.2216 -2217 of 20 11 Page 17 of 20 statement is reflect ive of a mob attack on the deceased which is co rroborated by PW -6’s conduct , inasmuch as , according to PW -6, after witnessing the incident , PW -6 went away without informing any one about the inciden t and returned back only when all the villagers congregated at Rupau temple near the dead body of the d eceased . No doubt, different people reac t diff erent ly to a given s ituation. But if it had truly been an issue between few individuals fighting in the street , natural course of human conduct would be to col lect people to solve o ut issues . However, where villagers in general , and none in specific, assau lt a person accused of his involvement with a lady , it is quite natural for by -standers not to intervene . 22. In addition to the abo ve, w hat is of significance is t hat if PW -6 had arrived at the spot later , when other villagers had coll ected near th e bod y of the deceased, he could have informed PW -9 about the culpability of the accused but , PW -9 categorically states in her deposition that n o one informed her about the p erpetrator of the crim e. 23. Further, PW -6 gives no indication as to h ow the body of the d ecea sed was brought near the tem ple from the place where he was allegedly assaulted i.e. in f ront of the house of Anshram. It b e Criminal Appeal No s.2216 -2217 of 20 11 Page 18 of 20 no ted that in paragraph 4 of his de position, PW -6 categor ically states that the distance between t he temple where the body was foun d and the place where the deceased was assaulted is 300 feet. For all the reasons a bove, we do not find the testimony of PW -6 to be of such a stellar quality t hat it may on its own form the basis of conviction of the accused for the offenc e of murder. M ore so, because it leaves ma ny gap s in the prosec ution story , namely, as to how the body came near the temple and why a lathi was left near the dead body of the deceased when , as per the police story , all the three assailants had wa lked away with their re spective lathi s, which w ere later discovered at their instance . 24. In light of the discussion above , we are of the considered view that the prosecution has not been able to convincingly prove the genesis of the crime a s also the manner in which the murder to ok place and by whom , inasmuch as the evidence led by the prosecution gives rise to a s trong probability of the killing being a con sequence of mob action on the deceased for his alleged involvement with a lady of the vill age. Thus, takin g into account that it was a case of night occurrence , the body of the deceased was found at a n open place near a temple; a named FIR was lodged no t by an y villa ger of the pla ce wher e Criminal Appeal No s.2216 -2217 of 20 11 Page 19 of 20 the deceased was assaulted , but by PW -9 i.e., the village Chowkidar of the neighbouring vil lage , who admits that no eye witness had in formed her ; and the body was found at a distance of 3 00 feet from t he plac e where the de ceased was allegedly assaulte d, we are of the view that this is a fit c ase where the accused are entitled to the benefit of d oubt. 25. At this stage , we ma y observe that though the prosecution relied on seizure of lathis and clothes at the instance of the accused but the se incriminating circumstances have been denied and th e ser olo gist report could not confirm the origin of blood s tains foun d thereon. That apart, next to the dead body of the deceased , a lathi was found . This lathi alone could have caused the i njuries found on deceased ’s body. Unexplained presence of the lathi is of significance when i t is not the case of the prosecution that the dece ased ha d used th e lathi i n self -defence . For all the reasons above, we do not consider seizure of lathi and clothes from the accused as a clinching circumstance warranting conviction . 26. The appe als are accordingly allowed. The judgment and order of the Hig h Court as well as of the Trial Cou rt are se t-as ide. The appellants are acquitted of the charge for which they have been tried . The app el lants are repo rted to have been Criminal Appeal No s.2216 -2217 of 20 11 Page 20 of 20 released on bail d uring th e pendency of this appeal . The ir bail bonds are discharged. They need not surrender. In case they are not on bail, they shall be released forthwith unless wanted in any other case. ................... ....... ........... J. (J . B . Pardiwala) ..................................... J. (Manoj Misra) New Delhi; September 05, 2023