IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  NO. 1835 OF 2009

Prithi                 …Appellant

Versus   State of Haryana             …Respondent

JUDGEMENT

R.M. Lodha, J.

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  

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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  

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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  

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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  

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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.  

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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

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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

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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  

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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

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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  

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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  

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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 gun shot 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  

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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  

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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.  

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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  

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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

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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  

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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

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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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