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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.133-134 OF 2009

Hari Kishan          …..Appellant

Versus

State of Haryana         ......Respondent

J U D G M E N T

AFTAB ALAM,J

1.  These appeals are directed against the judgment of  

the Punjab and Haryana High Court dated January 8, 2008 in  

Criminal Appeals Nos. 206 & 207-DB of 1998, confirming the  

appellant’s conviction under section 302 of the penal code and  

the sentence of life imprisonment awarded to him by the trial  

court for having committed the murder of one Dinesh.    

2.  The  case  of  the  prosecution  that  led  to  the  

sentencing  of  the  appellant  is  based  on  the  statement  of  

Harkesh (PW-2), one of the brothers of Dinesh, made before  

Bhup Singh SI/SHO of Sadar Palwal PS (PW-8) at 7.20 am on June  

24, 1995 at Palwal hospital where he had brought the dead body  

of Dinesh.

3.  In his statement before the police Harkesh said that  

at about 6.15 in the morning he along with his two younger  

brothers, Suresh Kumar (PW-6) and Dinesh (the deceased) was  

sitting on the chabutra of their baithak in village Gailpur,

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when Dinesh proceeded for his house to bring the clothes for  

getting ready to go to Faridabad, where he was due to appear  

in the B. Ed examination. As he reached the chaupal, where the  

lane turned, he was waylaid by the accused Hari Kishan (the  

appellant) and Rambir who were armed with knives, Shyam Lal  

armed with gun, Nain Pal and Kanwar Pal armed with lathis and  

Roshan and Nathi son of Gurdayal who were empty handed. Roshan  

and Nathi exhorted the other accused to kill Dinesh, saying  

that they would face the consequences. Hearing this, Harkesh  

and Suresh ran to save Dinesh. Bhim Singh (PW-4) also came  

there on hearing the noise. Even before Harkesh or his uncle  

Kanti Prakash reached the spot, Nain Pal and Kanwar Pal struck  

Dinesh on his back with lathis causing him to fall to the  

ground. As he lay on the ground, the appellant gave knife blow  

on the left side of his chest. Rambir too gave knife blows to  

Dinesh. When Harkesh and Kanti Parkash tried to save Dinesh,  

Rambir gave a knife blow to Harkesh that hit him on the thumb  

of the left hand. Nain Pal and Kanwar Pal gave Harkesh 4/5  

lathi blows. Nain Pal also gave one lathi blow on the head of  

Kanti Parkash. When Harkesh tried to save Kanti Prakash, Shyam  

Lal hit him on the shoulder by the butt of his gun. He also  

shouted that anyone coming to their victim’s rescue would be  

shot dead.  

4.  As to the cause of the incident Harkesh stated that  

shortly before the occurrence his younger brother Suresh was  

elected as the village Sarpanch. He did not pay any heed to

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the  unreasonable  demands  of  the  accused  and  this  greatly  

annoyed them as they thought of themselves as the Choudhary of  

the village. This had led to an altercation and an exchange of  

hot words between the two sides on the previous evening but  

the  matter  was  then  patched  up  by  discussion.  He  finally  

stated that the accused in league with one another had killed  

his brother Dinesh by giving him knife and lathi blows.  

5.  After the occurrence he brought Dinesh to the civil  

hospital, Palwal where he was declared ‘brought dead’. Dr.  

Krishna Kumar (PW-3) who was in the hospital on duty sent  

information  in  that  regard  to  the  SHO,  PS  Sadar  Palwal  

whereupon  PW-8  came  to  the  hospital  and  took  down  the  

statement of Harkesh. He read his statement as recorded by PW-

8 (the SI police) and finding it to be correctly recorded put  

his signature at the bottom. The statement of Harkesh, as  

recorded  by  PW-8,  was  incorporated  in  a  formal  First  

Information Report (FIR no. 286) drawn up at PS  Sadar Palwal  

at 9.30 a.m. on the same day for offences under sections 148,  

149, 506 & 302 of the Penal Code.  The FIR was delivered at  

the residence of the area Magistrate on the same day at 12.20  

p.m. through a special messenger, namely, constable Chander  

Bhan.

6.  Harkesh  and  Kanti  Prakash,  who,  according  to  the  

statement made in the FIR, had received injuries while trying  

to save Dinesh were medically examined by Dr. Krishna Kumar  

(PW-3) at 7.10 and 7.15 a.m. respectively on June 24, 1995.

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The post-mortem examination on the dead body of Dinesh was  

conducted on the same day at 12.45 p.m. by a team of three  

doctors of which Dr. Chandrika Malik (PW-5) was also a member.  

The post-mortem report noted the following injuries on the  

person of the deceased:

“1. Stab wound on left side of chest, measuring  3.5  cm  medial  to  the  left  nipple  in  the  5th  

intercostal space. Size 2.5 cm x 1 cm margins -  upper marginal lacerated, lower margins (angled)  obliquely  placed;  on  following  the  path  of  injuries upper border of rib (6th) is cut and then  piercing pericardium and entering the apex of the  ventricle  anteriorly  (size  2.3  cm.)  passing  through  cavity  of  the  left  ventricle  and  then  going through the posterior wall(size 2 cm) and  entering the left lung.  

2.  Incised wound on left arm, middle part on  lateral  aspect,  1.5  cm  x  0.25  cm,  margins  inverted, skin deep.

3.  Incised wound 1.5 cm x 0.25 cm on the left  forearm on lateral aspect on upper part 3 cm below  elbow, skin deep, margins inverted.  

4.  Incised wound 4 cm x 0.50 cm on middle part of  thigh,  lateral  aspect.  Skin  deep,  margins  inverted.”  

7.  According to the post-mortem report, death was caused  

due to shock and hemorrhage as a result of injury no. 1 which  

was ante-mortem in nature and was sufficient to cause death in  

ordinary course of nature. Injuries Nos. 2, 3, 4 were found  

to be post-mortem in nature. It was further stated that time  

elapsed between death and post-mortem was within 18 hours.

8.   The police after investigation submitted charge-sheet  

against all the accused named in the FIR and all of them were  

put on trial on charges under sections 148, 302, 324, 323 read

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with  section  149  and  section  506  of  the  Penal  Code.  The  

appellant, Hari Kishan, was also charged under section 25 of  

the Arms Act for possession and unlawful use of the knife and  

was tried separately for that offence.

9.      In  the  main  case  the  prosecution  examined  eight  

witnesses out of whom three, namely Harkesh (PW-2), Bhim Singh  

(PW-4) and Suresh Kumar (PW-6) claimed to be eye witnesses. Of  

the  rest,  Dr.  Kishan  Kumar  (PW-3)  was  the  doctor  who  had  

examined  the  injuries  on  the  person  of  Harkesh  and  Kanti  

Prakash, Dr. Chandrika Malik (PW-5) was a member of the team  

of three doctors who had conducted post-mortem on the body of  

Dinesh, Bhoop Singh (PW-8) was the SHO Sadar Palwal PS who had  

recorded the statement of Harkesh and had investigated the  

case. The remaining two, Ashok Kumar (PW-1) and Ramesh Chand  

(PW-7) were formal witnesses. The prosecution also produced  

some documents and some material exhibits. The accused, of  

course, took the plea of false implication but they did not  

lead any evidence in their defence.

10.    On  conclusion  of  trial,  the  trial  court  held  the  

appellant Hari Kishan guilty of killing Dinesh by giving a  

knife blow on the left side of his chest and, accordingly,  

convicted  him  under  section  302  and  sentenced  him  to  

imprisonment for life and a fine of Rs.5000/- and in default  

in payment of fine, to a further period of imprisonment for  

one year. The trial court also convicted accused Shyam Lal,  

Nain Pal and Kanwar Pal under section 323 of the Penal Code

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for causing simple injuries to Harkesh (PW-2) and his uncle  

Kanti  Parkash  and  sentenced  them  to  imprisonment  for  the  

period already undergone by them as under-trial and fine of  

Rs.1000/- each.

11.   What is, however, of significance for our purpose is  

that the trial court disbelieved a substantial part of the  

prosecution  story.  The  trial  court  did  not  accept  the  

prosecution case that accused Nathi and Roshan were present at  

the  place  of  occurrence  and,  accordingly,  directed  their  

acquittal. As regards Rambir, the trial court pointed out that  

the three incised wounds on the person of the deceased that  

were  attributed  to  him  were,  according  to  the  medical  

evidence, post-mortem in nature, that is to say, those three  

injuries were inflicted after Dinesh was already dead. The  

medical evidence, thus, clearly eliminated the participation  

of Rambir in the case. He too was, therefore, acquitted. The  

acquittal of the three accused brought down the number of the  

remaining accused to less than five. Hence, the aid of section  

149 was no longer available to bring about the conviction of  

the remaining three accused Shyam Lal, Nain Pal and Kanwar Pal  

under section 302 for the shared common intention with the  

appellant Hari Kishan to kill Dinesh. Apparently, that was one  

of the reasons for their conviction simply under section 323.  

The trial court further disbelieved the prosecution case that  

Nain Pal and Kanwar Pal had given lathi bows to Dinesh on his  

back and observed that this part of the prosecution story was

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an addition to rope in the two accused and to bring them  

within the mischief of section 149 of the Penal Code.  

12.   Apart from the three accused whose presence at the place  

of occurrence was not accepted, the trial court also doubted  

the presence of two out of the three eye witnesses, namely  

Bhim  Singh  (PW-4)  and  Suresh  Kumar  (PW-6)  at  the  time  of  

occurrence. The trial court further held that even Harkesh  

(PW-2), the only remaining eye witness, had mixed-up truth  

with  falsehood  but  his  testimony  was  not  liable  to  be  

discarded wholly since he had himself received injury in the  

same occurrence. In regard to the injury sustained by Harkesh,  

the trial court came to a truly amazing conclusion. It was the  

specific case of the prosecution that the injury to Harkesh on  

the thumb of his left hand was caused by a knife blow given by  

Rambir while he was trying to save Dinesh and Harkesh in his  

deposition before the court also attributed that injury to  

Rambir. Rambir, however, was held by the trial court to be not  

present at the place of occurrence. But the injury on the hand  

of Harkesh was certainly in existence and it was also proved  

by  the  medical  evidence.  The  trial  court  resolved  the  

contradiction by fastening the injury to Harkesh too on to the  

appellant Hari Kishan even though that was not the case of the  

prosecution. The appellant Hari Kishan was, thus, held guilty  

also of causing the knife injury to Harkesh and came to be  

convicted under section 324 in addition to section 302 of the  

Penal Code. Under section 324 he was sentenced to rigorous

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imprisonment for one year. He was also convicted under section  

25 of the Arms Act by a separate judgment of the trial court  

dated February 2, 1998 in Sessions case No. 28 of 1995 and  

sentenced to the period of imprisonment already undergone as  

under-trial.

13.   Against the two judgments of the trial court, three  

appeals were filed in the High Court. One (Criminal Appeal No.  

206-DB of 1998), by the appellant and the three other accused  

convicted and sentenced by the trial court as noted above in  

the  main  case;  the  second  (Criminal  Appeal  No.  207-DB  of  

1998),  by  the  appellant  Hari  Kishan  alone  against  his  

conviction under section 25 of Arms Act and the third appeal  

(Criminal  Appeal  No.  379-DBA  of  1998)  was  filled  at  the  

instance of the State of Haryana against the acquittal of the  

three accused from all charges and the acquittal of the other  

three accused from the main charge of murder. Along with the  

three appeals the complainant also filed a revision (Criminal  

Revision No. 486 of 1998) agitating similar grievances as in  

the State’s appeal.

14.   The High Court by the judgment and order coming under  

appeal dismissed all the three appeals and the revision and,  

thus, upheld the judgments of the trial court in all aspects.  

15.      Mr. J. L. Gupta, Senior Advocate, appearing for the  

appellant  assailed  the  High  Court  and  the  trial  court  

judgments and contended that the appellant’s conviction for  

the offence of murder was not sustainable both in law and on

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facts.  Mr.  Gupta  submitted  that  there  were  at  least  four  

circumstances  that  falsified  and  completely  demolished  the  

prosecution  case.  First,  there  was  a  patent  contradiction  

between the prosecution case and the motive assigned by it to  

the  accused  for  committing  the  crime.  Secondly,  it  was  

undeniable that injuries were fabricated both on the person of  

the deceased and Harkesh, the only eye witness whose evidence  

was accepted by the High Court and trial court. Thirdly, the  

prosecution had indisputably tried to falsely implicate three  

out  of  seven  accused.  Fourthly,  the  medical  evidence  

completely  belied  the  alleged  time  and  the  manner  of  

occurrence.

16.    Elaborating  the  points  Mr.  Gupta  submitted  that  

according  to  the  prosecution  the  main  cause  of  conflict  

between the two sides was the election of Suresh Kumar as the  

village Sarpanch who did not pay any heed to the demands of  

the accused. If that were so, the accused should have targeted  

Suresh  Kumar  and  not  Dinesh.  Suresh  Kumar  was  admittedly  

present at the time of the occurrence. He was unarmed and was  

also physically disabled, yet no attempt was made to assault  

him and he got away without a scratch and in his place Dinesh  

was killed against whom the accused had no animus.   

17.    Mr. Gupta further submitted that even according to the  

prosecution  case  it  was  a  chance  encounter.  The  accused  

persons had no means to know that Dinesh would be coming from  

his baithak to his house to pick up his clothes and would be

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passing through that particular spot at that particular time,  

so as to ambush him there, differently armed with gun, knife  

and lathis.  

18.   Mr.  Gupta  next  submitted  that  according  to  the  

prosecution case Dinesh was first struck on his back by lathis  

causing him to fall down on the ground. But in the post-mortem  

examination, no mark of injury of any kind was found on the  

back of the deceased. The post-mortem report further showed  

that  three  incised  wounds  (Injuries  2,  3,  and  4)  were  

inflicted on his body after he was dead. Obviously, those  

three injuries could not be attributed to any of the accused.  

In other words, the complainant had fabricated the injuries on  

the dead body of Dinesh with intent to make out a false case  

against the accused.  Further, according to the post-mortem  

report, the time elapsed between death and post-mortem report  

was  within eighteen hours.  This,  according  to  Mr.  Gupta,  

clearly  showed  that  death  had  taken  place  sometime  the  

previous evening and not in the morning of June 24.  

19.    Mr. Gupta further stated that the stab by knife (Injury  

No. 1) that caused the death of Dinesh had pierced through his  

heart  and  would  have  naturally  led  to  profuse  bleeding.  

Shortly after receiving the injury the body of Dinesh was  

picked up from the ground by Harkesh (PW-2) and Bhim Singh  

(PW-4)  to  place  him  in  the  truck.  And  yet  in  reply  to  

questions in the cross-examination Harkesh stated that his  

clothes or the clothes of Bhim Singh were not stained with

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blood. No blood stained clothes of Harkesh or Bhim Singh were  

produced before the police.

20.     All  these  circumstances,  according  to  Mr.  Gupta,  

strongly indicated that the death of Dinesh did not take place  

in the manner and at the time as claimed by the prosecution.

21.    Mr. Gupta further submitted that the conviction of the  

appellant was based solely on the testimony of Harkesh whose  

presence at the time of occurrence was extremely doubtful. He  

once again referred to the medical evidence to support his  

submission that Harkesh had not received the injuries in the  

morning of June 24 when Dinesh was alleged to have been killed  

and hence, he could not have been present at the time of  

occurrence and he falsely claimed to be an eye witness of the  

occurrence.

22.   On hearing Mr. Gupta and Mr. Alok Sangwan appearing for  

the State and on going through the judgments of the High Court  

and the trial court and the evidence on record we find that  

the  submissions  of  Mr.  Gupta  are  not  entirely  without  

substance  and  at  least  some  of  the  points  raised  by  him  

deserve serious consideration.

23.    It is seen above that the trial court doubted the  

presence of Bhim Singh (PW-4) & Suresh Kumar (PW-6) at the  

place of occurrence and did not accept their testimonies as  

eye witnesses. Even in regard to Harkesh (PW-2), the only eye  

witness remaining in the case, the trial court observed that  

he had mixed up falsehood with truth. Nevertheless, it did not

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reject his testimony as a whole and accepted his evidence as  

regards  the  knife  blow  given  to  Dinesh  by  the  appellant  

because “he (PW-2) had some injuries in that incident as is  

clear from the statement of Dr. Krishan Kumar (PW-3)”  and  

hence,  the  presence  of  Harkesh  (PW-2)  at  the  place  of  

occurrence  could  not  be  doubted.  The  High  Court  has  also  

adopted the same approach and it has described Harkesh as an  

“injured witness”. Mr. Gupta questioned the very premise that  

the injuries found on the person of Harkesh were caused in the  

same incident in which Dinesh was killed and which, according  

to the prosecution case, had taken place in the morning of  

June 24 and submitted that the trial court and the High Court  

had completely misread the medical evidence.

24.  According to the prosecution, the occurrence in which  

Dinesh was killed took place shortly after 6.15 in the morning  

of June 24. Harkesh was medically examined at 7.10 and Kanti  

Prakash at 7.15 am respectively, that is to say, within an  

hour when the wounds/injuries on their person would be very  

fresh.      

25.   But the injury report of Harkesh disclosed as follows:

“1)  An  incised  wound  on  left  hand  between  the  thumb and index finger.  0.3 cm x 0.2 cm skin deep  clotted blood was present on the wound.

2) Four contusions Parallel to each other present  on  the  left  shoulder  and  upper  part  of  chest,  horizontally  placed  reaching  on  the  upper  arm  anteriorally in the area 8”x4” red in colour.

3) A contusion on right upper arm on the meddle  1”x05” cm red in colour. Injury No. 1 was caused by sharp edged weapon and

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injury No(s). 2 and 3 were caused by blunt weapon.  Nature of injuries were simple, duration was 12  hours”

 The injury report of Kanti Prakash noted as follows:

“1)  An  abrasion  and  contusion  on  the  parietal  region of scalp in the vertex in the mid lone 11/2  x1cm blood was oozing.  

The injury was simple, caused by blunt weapon.  The probable duration was 12 hours”.

Further  PW-3,  the  doctor  who  examined  Harkesh  and  Kanti  

Prakash, in cross-examination, deposed before the court as  

follows:

“It is correct that the injuries on both these  injured  have  been  caused  probably  on  23/6/95  between 6 PM and 8 PM.”

26.  Thus, according to the medical evidence, injuries on  

Harkesh were caused on the evening previous to the morning of  

June 24, when Dinesh was killed in the alleged occurrence.  

This takes away the basis on which he was accepted by the  

trial  court  and  the  High  Court  as  an  eye  witness  

notwithstanding his proclivity to mix up falsehood with truth.

27.   The submission that Harkesh had received the injuries on  

the evening of June 23 and not in the morning of June, 24  

gains credence from the fact that an incident between the two  

sides had admittedly taken place on the evening of June 23,  

1995.   

28.   In regard to the incident on the evening of June 23,  

1995, Harkesh (PW-2) stated as follows:

“On 23.6.95 there was an altercation between the  accused and us and it was compromised with the

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interventions of the respectable of the village.”

As regards the incident on the evening of June 23, Harkesh  

further stated in his cross-examination that:  

“Bhim PW was not present at the time of earlier  altercation on the previous day i.e. 23.6.95. That  altercation  lasted  for  2  minutes.  About  50/60  persons  had  collected  including  ladies  had  collected at that time. There are 4/5 houses near  the Chaupal where this altercation took place.”

29.   In the face of the medical evidence and the admitted  

position that an incident between the two sides had taken  

place on the evening of June 23, 1995 it is difficult to  

accept that the injuries found on the person of Harkesh were  

received by him in the morning of June 24. From this, either  

of two inferences would logically follow. One, Harkesh was not  

present at the occurrence in which Dinesh was killed in the  

morning of June 24; or the other, the occurrence in which  

Dinesh was killed did not take place in the morning of June 24  

and  he  was  not  killed  in  the  manner  as  suggested  by  the  

prosecution. Both the inferences are equally damaging to the  

prosecution case.   

30.    Summing up the discussions made up, we have before us a  

case where a substantial part of the prosecution story has  

been disbelieved and the conviction of the appellant rests  

solely on the testimony of Harkesh (PW-2) who does not seem to  

have particular respect for truth as observed by the trial  

court. His credibility as an eye witness lay only in that the  

trial court and the High Court assumed that he had received

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injuries in the same occurrence in which Dinesh was killed. As  

shown above that assumption does not appear to be very sound  

and is not borne out by the evidences on record. In such a  

situation, we find it highly unsafe to uphold and sustain the  

appellant’s conviction for the offence of murder. To us, it  

appears that the prudent and safe course would be to give him  

the benefit of doubt.

31.   We, accordingly, allow the Criminal Appeal No. 133/09  

and set aside the judgments of the High Court and the trial  

court and acquit him of the charges under sections 302 & 324.  

Criminal Appeal No. 134/09 relating to his conviction under  

section 25 of the Arms Act was not pressed, presumably because  

the  conviction  no  longer  carries  any  sentence.  This  is,  

accordingly, dismissed.   

32.   The appellant Hari Kishan is directed to be released  

forthwith if he is not wanted in any other case.

………………………………………J        [ AFTAB ALAM ]

………………………………………J            [ DR. B.S. CHAUHAN ]

New Delhi; January 6, 2010.