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CASE NO.: Appeal (crl.)  957 of 1998

PETITIONER: Hem Raj & Ors.

RESPONDENT: State of Haryana

DATE OF JUDGMENT: 29/03/2005

BENCH: P.VENKATARAMA REDDI & P.P. NAOLEKAR

JUDGMENT: JUDGMENT

WITH

CRIMINAL APPEAL NO. 958 OF 1998

P.VENKATARAMA REDDI, J.  

The four appellants herein who are brothers faced trial  before the Additional Sessions Judge \026 I, Jind for murdering  one Hemant Kumar at a central place in Safidon town, on  the night of 3.4.1996 at about 8.45 p.m.  They were  convicted under Section 302 IPC and sentenced to life  imprisonment.  The High Court dismissed the appeals filed  by the accused.  Hence, these appeals by special leave.         The following is a brief account of the prosecution case  and other relevant facts :         On the night of 3rd April, 1996, all the accused attacked  Hemant Kumar at Channi Chowk and stabbed him with  knives.  As a result of stabbing, he received six injuries out  of which two were in the chest region.  The fatal assault by  the four accused was seen by the younger brother of  deceased-PW4, who was returning home from his watch  repair shop.  On being informed by a passer-by on a bicycle,  PW4 rushed to the spot and having noticed from a distance  of 30 ft. or so that the attack on the deceased was going on,  he raised an alarm.  Hearing the cries, PW5-another relation  of the deceased and one Kapoor Singh who were at a nearby  sweet shop joined PW4.  On seeing all of them, the accused  fled.  According to PWs 4 and 5, three accused carried  knives  and  the accused, namely, Kala carried ‘Neja’ (which   resembles knife).  The injured person fell down on the spot  and he was taken on a cot to the Civil Hospital, Safidon by  the aforementioned three persons.  At the hospital, the  doctor (not examined) declared him dead.  The same doctor  sent a rucca (memo) to the Police Station, Safidon at about  9.50 p.m.  The Sub-Inspector of Police-PW9 was going on a  jeep by the side of the hospital. The Ward Boy of the  hospital handed over the rucca to him PW9 then came to the  hospital and after sometime, recorded the statement of PW4  at the hospital.  He sent the same to the Police Station, on  the basis of which an FIR was recorded at 11.30 p.m., for an  offence under Section 302 read with Section 34 IPC.  Copy  was sent to the Judicial Magistrate through a Constable and  it reached him at about 1.00 a.m.  In the said statement  given to the police, PW4 named the four accused as the  assailants.  PW9 held the inquest over the dead body in the

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hospital and sent the dead body for post-mortem.  The  Medical Officer attached to the General Hospital, Jind did the  post-mortem examination at 9.15 a.m. on 4.4.1996 and  prepared the post-mortem report which is Ex.PA.  PW9 could  go to the scene of occurrence at about 2.30 a.m.  The delay  was for the reason that he tried to stop a reprisal attack by  a mob to set fire to the houses of the accused.  He prepared  a site plan.  One Gobind Das produced all the four accused  persons involved in the offence in the night of 4.4.1996  before PW9 while he was at Court Road Chowk. They were  arrested and immediately thereafter, the accused Kala  produced a knife (Ex.P1).  The total length of that knife was  8 inches inclusive of 4" of handle and the width of the blade  was about 0.2 to 0.3 cms.  PW10-Inspector of Police, CIA,  was entrusted with investigation from 6.4.1996 onwards.   He recorded the statements of some witnesses.  He applied  for judicial remand of the arrested accused.  On the same  day, PW10 took the knife seized from Kala to the Medical  Officer-PW1, who endorsed on the post-mortem report that  the injuries could be inflicted by that knife.  On the basis of  his investigation, PW10 found that the accused other than  Kala were innocent.  Therefore, in the report under Section  173 Cr.P.C., only Kala was shown as the accused for the  offence punishable under Section 302 IPC.  However, all the  four accused persons were committed to Sessions.  After  examining the record, the learned Judge found that there  was a prima facie case to proceed against all the accused.   Accordingly, the charge was framed against all the accused  under Section 302 IPC.  Curiously, Section 34 was omitted in  the charge.  On the basis of the evidence of the eye- witnesses, namely, PWs 4 and 5, the accused were  convicted under Section 302 IPC.         The motive of the accused is traced to an incident  which had happened one and a half years earlier when the  deceased Hemant Kumar identified the accused as the  persons involved in the kidnapping of the daughter of one  Niranjan Das.  However, the motive was held to be not  proved by the trial court.  The High Court did not hold to the  contra.         The details of post-mortem examination may be  noticed at this juncture.  The following injuries were found  on the body of the deceased:- (i)            Spindle shaped incised wound on left side of chest  just lateral to left nipple 1.5 cm x 1 cm x 4 cm.   The wound cut through skin, costal muscles,  corresponding cut in pleura was present.                                                                                          (ii)    Incised wound (spindle shaped) 3 x 1 x 7 cm on  the left side of chest 5 cm below injury no.1  longitudinally placed, wound cut through shirt,  banian, Costal muscles, 6th and 7th intercostals  space, left lung.

(iii)   Incised wound (spindle shaped) 2.5 x 1 cm x 6 cm  obliquely placed on left side of abdomen 5 cm  below the costal margin.  The wound cut through  skin muscle, peritoneal membrane and a cut of  1.5 x = x >th  of cm. on spleen was present.

(iv)    Incised wound 4 cm x 1.5 cm muscle deep on the  posterior lateral aspect of left fore-arm.

(v)     Incised spindle shaped wound on upper thigh of  the size of 3 x 1.5 cm x 1cm.  15 cm below iliac  crest.

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(vi)    Incised wound 3 cm x 1.5 bone deep on the  palmer aspect of right thumb, bone was fractured.

       The learned senior counsel for the appellant contended  that it is a case of blind murder which might not have been  witnessed by anybody and the version of PWs 4 & 5 - the  alleged eye-witnesses and close relations of the deceased is  unnatural and unbelievable.  No explanation was  forthcoming for not examining the independent witnesses  who would have been available at the place of occurrence  which is in a busy locality.  The scene of offence has not  been established beyond doubt and the time of occurrence,  the time of recording the statement of PW4 and the FIR and  the time of death are all doubtful.  Recovery of knife from  the accused Kala is concocted, as held by the trial court.  It  is pointed out that the pattern of stab injuries received by  the victim only on one side of the body shows that one or  two persons would have inflicted injuries but not as many as  four.  In this context, it is pointed out that the 2nd  investigating officer-PW10, after recording the statements of  certain witnesses thought it fit to file the charge-sheet  against one accused only, namely Kala.  However, by the  order of the Sessions Judge, all the four were charged on  the ground that they were named in the FIR.  Finally it is  submitted that in the absence of charge under Section 302  IPC read with Section 34, the conviction cannot be sustained  under Section 302 simplicitor.  It is then submitted that the  offence does not in any case fall under Section 300 IPC.         The learned counsel appearing for the State as well as  the learned senior counsel appearing for the informant\027PW4  who has been allowed by this Court to intervene have  countered the above arguments.  It is contended by them  that even in the absence of specific mention of Section 34  IPC in the charge, the conviction can still be sustained, that  there is nothing to discredit the testimony of PW4 or PW5,  that the arguments relating to ante-timing of the FIR and  the improbability of participation of as many as four accused  are without substance.  The injuries being sufficient in the  ordinary course of nature to cause death, all accused are  constructively liable for the offence of murder irrespective of  which accused had inflicted the particular injury.  It is  submitted that the concurrent findings of both the Courts  cannot be legally faulted.         The prosecution case rests on the evidence of PWs 4 &  5 who are related to the deceased and who happened to be  chance witnesses.  Before scrutinizing this evidence and  testing its credibility, we have to advert to certain features  in the prosecution case which make a dent on the reliability  of the prosecution version.  They are discussed hereunder :-         Two days after the incident i.e. on 5.4.1996, the  investigation was entrusted to PW10-Inspector, CIA at the  instance of Superintendent of Police, Jind.  PW10 stated in  cross examination that he inspected the place of occurrence  and examined the persons staying near the place of  occurrence and recorded the statements of such persons.   The names of those five persons were given.  Then he added  that "from their statements, it was revealed that Hemraj,  Chunnilal and Omprakash were innocent".  He further stated  that the investigation done by him was verified by DSP.   Ultimately he filed the final report showing only Kala as the  sole accused.  However, as already noticed, all the four  accused mentioned in the FIR were committed to Sessions  and the Sessions Judge framed charge against all of them  under Section 302.  PW10 did not choose to give all the

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relevant details of his investigation.  However, the version of  this Investigating Officer itself casts a cloud on the reliability  of the prosecution case as unfolded by PWs 4 and 5 that four  accused were involved.         The fact that no independent witness - though  available, was examined and not even an explanation was  sought to be given for not examining such witness is a  serious infirmity in the prosecution case having regard to the  indisputable facts of this case.  Amongst the independent  witnesses, Kapur Singh was one, who was very much in the  know of things from the beginning.  Kapur singh is alleged to  have been in the company of PW5 at a sweet stall and both  of them after hearing the cries joined PW4 at Channi Chowk.   He was one of those who kept the deceased on a cot and  took the deceased to hospital.  He was there in the hospital  by the time the first I.O.-PW9 went to the hospital.  The  evidence of the first I.O. reveals that the place of occurrence  was pointed out to him by Kapur Singh.  His statement was  also recorded, though not immediately but later.  The I.O.  admitted that Kapur Singh was the eye-witness to the  occurrence.  In the FIR, he is referred to as the eye-witness  along with PW5.  Kapur Singh was present in the Court on  6.10.1997.  The Addl. Public Prosecutor ‘gave up’ the  examination of this witness stating that it was unnecessary.   The trial court commented that he was won over by the  accused and therefore he was not examined.  There is no  factual basis for this comment.  The approach of the High  Court is different.  The High Court commented that his  examination would only amount to ‘proliferation’ of direct  evidence.  But, we are unable to endorse this view of the  High Court.  To put a seal of approval on the prosecution’s  omission to examine a material witness who is unrelated to  the deceased and who is supposed to know every detail of  the incident on the ground of ‘proliferation’ of direct  evidence is not a correct approach.  The corroboration of the  testimony of the related witnesses-PWs 4 & 5 by a known  independent eye-witness could have strengthened the  prosecution case, especially when the incident took place in  a public place.         Non-examination of independent witness by itself may  not give rise to adverse inference against the prosecution.   However, when the evidence of the alleged eye-witnesses  raise serious doubts on the point of their presence at the  time of actual occurrence, the unexplained omission to  examine the independent witness-Kapur Singh, would  assume significance.  This Court pointed out in Takhaji  Hiraji Vs. Thakore Kubersing Chamansing & Others  [(2001 6 SCC 145] \026 "\005\005\005\005\005\005\005.if already overwhelming evidence  is available and examination of other witnesses  would only be a repetition or duplication of the  evidence already adduced, non-examination of  such other witnesses may not be material. In  such a case, the court ought to scrutinize the  worth of the evidence adduced. The Court of  facts must ask itself \026 whether in the facts and  circumstances of the case, it was necessary to  examine such other witness, and if so, whether  such witness was available to be examined and  yet was being withheld from the Court. If the  answer be positive then only a question of  drawing an adverse inference may arise.  If the  witnesses already examined are reliable and  the testimony coming from their mouth is  unimpeachable the Court can safely act upon it,

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uninfluenced by the factum of non-examination  of other witnesses.  In the present case we find  that there are at least 5 witnesses whose  presence at the place of the incident and whose  having seen the incident cannot be doubted at  all.  It is not even suggested by the defence  that they were not present at the place of the  incident and did not participate therein."    

       One more aspect which deserves notice is that at the  alleged scene of offence, no blood-stains were found by the  I.O., though he made a search.  The surmise of the High  Court that the blood stains at the public place would have  disappeared in view of the time gap between the incident  and the I.O.’s inspection may not be correct, especially, in  view of the fact that it is a metal road, as shown by PW8 in  the site plan and it was night time.  It is difficult to believe  that traces of blood would fade out by the time of the visit of  I.O.  This is one of the circumstances that has to be kept in  mind while appreciating the prosecution case.         There is also a doubt regarding the time when the first  information was received at the police station.  The FIR was  registered at 11.35 p.m. on the basis of the statement of  PW4 recorded at 11.15 p.m. at the hospital.  However, as  per the evidence of PW6 (Police Constable), the information  regarding the occurrence was received in the police station  at 10.30 or 10.45 p.m. and thereafter the SI-PW9  accompanied by him and other police personnel went to the  hospital.  Apart from the fact that his evidence goes contrary  to the version of PW9 that on receiving the death intimation  at the hospital gate, he went straight to the hospital and an  hour later he recorded the statement of PW4, a doubt is cast  on the time and source of first information. If the  information was received at the police station at 10.30 p.m.  why was it suppressed? What are the details of such  information? These are the questions which remain  unanswered.         No weapons were recovered from any of the accused.  The recovery of knife from Kala at the time of surrender has  been rightly disbelieved by the trial Court.          All the above factors would not have assumed much  importance if the evidence of PWs 4 & 5 could be accepted  without raising an eye-brow. However, two views are  possible on the point whether these persons had really  witnessed the attack. There is every reason to think that  PW4, on being informed by a way-farer, would have reached  near the scene of offence almost after the attack was over.   The possibility of seeing all the accused attacking the  deceased with the knives and ’Neja’ from a distance of 30  feet or more, that too, in the night time, is rather doubtful.  It is not safe to rely on his version that he had seen the  accused with the particular weapons in their hands. In this  context, it may be noted that PW4 did not mention the  distance from which he observed the attack.  In the site plan  drawn to scale, the distance of the spot from where PW4  observed the incident was given as 30 ft. It was night time- almost 9.00 p.m. and most of the shops were closed, as  seen from the evidence of PW4. PW4 or any other witness  did not give any details about the lighting in the vicinity.  However, from the site plan drawn by PW8, there was a  tube-light attached to the electrical pole situated at 20 feet  distance. It would have been difficult for PW4 at the night  time to notice each of the accused carrying a particular type  of weapon, that too a small weapon like knife. But, PW4  came forward with the version that all the accused except

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one, were carrying knives and the other was carrying ‘Neja’.  Thus he claims to have seen so clearly as to distinguish  between a knife and ‘Neja’ at that juncture, when the attack  would have been almost over and PW4 was trying to evoke  the attention of the people around. It is difficult to accept  the version of PW4 of having seen the weapon in the hand of  each of accused and the nature of the weapon. The  reference to ’Neja’ in particular appears to have been  introduced for explaining the injuries on the body of the  deceased.  It seems to us that the picture given by PW4, as  if he had seen each of them with the knife or ‘Neja’ seems  to be an embellishment developed with the idea of  implicating all the brothers as the accused. His further  version that PW5 having heard his cries joined him and  witnessed the attack seems to be a story invented for the  purpose of introducing another eye-witness to corroborate  his version. The possibility of PW5 who was at a sweet shop  hearing his cries, joining PW4 and then observing the  incident appears to be highly improbable. If PW5 had  already been there near Channi Chowk for purchasing  sweets, he would have noticed the commotion caused by the  attack and would have seen the assailants even before PW4  arrived at the spot. But his story is different. Another factor  which casts a doubt on the evidence of PWs 4 & 5 is that  there were no blood stains on their clothes, though  allegedly, they placed the deceased on cot and carried him  to the hospital. Moreover, soon after his brother was  declared dead, PW4 did not go to the police station which  was quite close to the hospital to lodge a report. That is not  a natural course of conduct. It is on account of these  doubtful features in the evidence of PW4 that the factum of  non-examination of independent witness, though available,  assumes importance.         On a consideration of the evidence on record and the  broad probabilities, we come to an irresistible inference that  there is a reasonable possibility of some accused who were  not involved in the attack having been convicted. It is  difficult to sift the grain from the chaff. The High Court  missed to notice certain crucial aspects adverted to above. It  is a case in which benefit of doubt has to be accorded to the  appellants. It is unnecessary to consider the question  whether in the absence of charge under Section 34 IPC, the  conviction can be sustained.         In the result, the appeals are allowed and the  conviction and sentence of all the appellants is set aside.