REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1011 OF 2005

Murli & Anr. …. Appellants

Versus

State of Rajasthan …. Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. This Criminal Appeal is at the instance of two accused persons, who stand convicted of  

the offences under Section 302 by Trial Court and the High Court.  As many as seven persons were  

tried for the offences under Sections 147, 148 & Sections 325 and 323 read with Section 149 of the  

Indian Penal Code (hereinafter referred to as “IPC” for short) on the allegation that they formed an  

unlawful assembly and in pursuance of the common object thereof, committed murder of Virendera  

Singh (the deceased), who was serving as a Patwari.  In that process, one Lokendra Singh, his  

brother, was also injured.

2. Initially, the Sessions Judge convicted accused Murli (A-1), Heera (A-2), Bheru (A-3),  

Mohan Lal (A-4), Chhittar (A-5), Kanwar Lal (A-6) and Bhanwar Lal (A-7) for the offences for  

which they were charged.  Three separate appeals came to be filed on behalf of the accused, they  

being D.B. Criminal Appeal No. 248 of 2000, D.B. Criminal Appeal No. 252 of 2000 and D.B.  

Criminal Appeal No. 309 of 2000.  The High Court, ultimately, allowed the D.B. Criminal Appeal  

No. 248 of 2000 and D.B. Criminal Appeal No. 309 of 2000.  The High Court dismissed the D.B.  

Criminal Appeal No. 252 of 2000 filed by Murli (A-1) and Heera (A-2), but allowed the same  

insofar as Chhittar (A-3) was concerned.  We are, therefore, concerned only with two accused

persons, i.e., Murli (A-1) and Heera (A-2), who are the appellants in the present Appeal, the rest of  

the accused having been acquitted by the High Court.

3. The prosecution story, in short, is as under.

The incident is dated 14.9.1987.  Lokendra Singh (PW-1) filed a report in the Police  

Station that while his elder brother Virendra and one Badri Dhakar were standing at the Paan Shop  

of Latur Mali at Bundi Road, Heera S/o Hardev Gujjar, who was armed with Gandasa, Murli S/o  

Sunder Brahmin, who was armed with a Lathi and one other person, who was also armed with a  

Lathi  came near  them at  Paan Shop.   They abused his  brother  Virendra Singh, whereupon he  

(Lokendra Singh) and Virendra Singh asked them not to mishbehave.  Just then, 6-7 persons armed  

with Lathies, Farsa, Gandasi and knifes cornered Virendra Singh in a lane.  Murli gave a lathi blow  

on his head and then all of them started shouting, expressing their intention to kill him and started  

assaulting Virendra Singh with various weapons.  Virendra Singh fell down there itself.  Then also,  

he was assaulted by Murli and one other person, though Badri Dhakar tried to stop them, which  

was futile.  After the incident, all of them boarded one tractor of red colour and went away towards  

Kota Road, shouting ‘Jai’.  When PW-1 Lokendra Singh saw Virendra Singh, he had already died  

and his head and face were injured.  He had seen those persons in the light and he could identify  

them.  On this basis, the offence was registered at the Police Station.  After the usual investigation,  

all accused persons excepting Bhanwar Lal (A-7) were arrested and the chargesheet came to be  

filed against the arrested accused persons, wherein Bhanwar Lal (A-7) was shown as an absconder.  

The investigation was kept pending against him.  The matter was committed to Sessions Court,  

Bundi.  When the trial commenced before the Sessions Judge, Bhanwar Lal (A-7) was also arrested  

and a chargesheet came to be filed against  him after about  3 years of the first  chargesheet on  

2.1.1990.  His case was also committed to the same Court.  He was also charged for the same  

offences, with which the earlier accused persons were charged on 22.6.1988.  The charge against  

Bhanwar Lal (A-7) was framed on 8.2.1990.  All the accused abjured their guilt.  The witnesses,  

who were earlier examined like Lokendra Singh (PW-1), Badri Lal (PW-2) were recalled.  The

evidence of  all  the  witnesses,  whose  evidence was  recorded earlier,  was  then recorded again.  

Ultimately, the Sessions Judge found all the accused persons guilty.  The prosecution mainly relied  

on the evidence of Lokendra Singh (PW-1) and Badri Lal (PW-2).  During the investigation, the  

Test  Identification Parade  was  also  held  since barring  the  two appellants,  no  other  name was  

mentioned in the First Information Report.  The evidence of the Magistrate was also recorded.

4. Shri U.U. Lalit, Learned Senior Counsel appearing on behalf of the appellants, pointed  

out that the prosecution has not been able to establish its case fully and as many as five accused  

persons have been acquitted by the High Court.  He, therefore, pointed out that the same witnesses,  

whose evidence was disbelieved by the Trial Court could not have been believed by the Appellate  

Court,  as  the sub-stratum of the prosecution story itself  was disbelieved.   The Learned Senior  

counsel secondly pointed out that barring Lokendra Singh (PW-1), the other witness Badri  Lal  

(PW-2) cannot be believed, as his submission was recorded after considerable delay of over 25  

days.  The explanation given for this delay is also not satisfactory.  It is pointed out that the name  

of Badri  Lal (PW-2) did not find mention in the First Information Report and, therefore, he is  

clearly a set  up witness.   Insofar as Lokendra Singh (PW-1) is  concerned, the Learned Senior  

Counsel pointed out that his evidence was also not liable to be accepted, as was done by the High  

Court, particularly, when his evidence was disbelieved in respect of the other accused persons.  The  

Learned Senior Counsel further pointed out that in the Test Identification Parade, Lokendra Singh,  

who had earlier named Heera as one of the assailants, had identified accused Bheru and called him  

as ‘Heera’.  The Learned Senior Counsel tried to take advantage of the situation and contended that  

when he had named Heera, he might have seen only accused Bheru, whom he had identified as  

Heera.  The Learned Senior Counsel also relied on the record of the Identification Parade to point  

out that the error committed by Lokendra Singh in calling Bheru as Heera, was fatal to the case  

against accused Heera and hence Heera was liable to be acquitted.  Insofar as appellant Murli is  

concerned, the Learned Senior Counsel pointed out that as per the prosecution evidence, he had  

only given one stick blow on the head of the deceased and, therefore, he could not have had an  

intention  to  commit  murder  of  the  deceased and his  conviction  should  be  altered  from under

Section 302 IPC to Section 304 Part II IPC or even under Section 326 IPC.

5. As against this, Shri Milind Kumar, the Learned Counsel appearing on behalf of the  

State supported the conviction and pointed out that though the evidence of Badri Lal (PW-2) was  

disbelieved by the High Court, this Court still could go into that evidence and if the evidence of  

these two witnesses (PW-1 and PW-2) is read together, the prosecution case against these two  

appellants stood fully established.  The Learned Counsel pointed out that both these witnesses have  

stood  the  test  of  searching  Cross  Examination  and  the  Appellate  Court  had  disbelieved  the  

evidence of Badri Lal (PW-2) only on the ground that firstly, his statement was recorded late and  

secondly, that Badri Lal (PW-2) was of dubious character, facing number of prosecutions.  The  

Learned Counsel pointed out that merely because of these two reasons, the evidence could not have  

been thrown, as the Investigating Officer was not even cross-examined and was not given any  

opportunity to explain as to why Badri Lal’s Statement under Section 161 of the Code of Criminal  

Procedure (hereinafter called “Cr.P.C.” for short) was recorded late.  According to the Learned  

Counsel, since Badri Lal was afraid to go to the Police because of his dubious past and had clearly  

deposed the same in his evidence, he should have been believed by the Appellate Court and his  

evidence should be accepted by us, since he was honest to that extent in owning up the pending  

prosecutions against him.  As regards the error committed by PW-1 Lokendra Singh, the Learned  

Counsel pointed out that there was no substantive evidence on record to the effect that Lokendra  

Singh has committed the mistake.  The Learned Counsel urged that merely because it was, at one  

place, so recorded in the Test Identification Panchanama, that by itself, could not be viewed as  

substantive evidence, unless the Magistrate recording the same, had referred to that fact in his  

substantive evidence before the Court.  It is on this basis that we have to consider as to whether the  

High Court was right in convicting the appellants herein.

6. There can be no dispute that the witnesses, as well as, the accused persons have criminal  

background.  It has come in the evidence of Lokendra Singh (PW-1) that there were two false cases  

going on against him and his brother in Kota,  instituted by Nayapura Police Station.   He also

disowned any knowledge regarding the prosecution of his brother for offences under Section 365  

and 376 IPC.  He also refused to admit that as many as seven cases were continuing against his  

brother, instituted by the Police Station Pattan.   It has also come in the evidence that accused  

persons were no better.  Same thing is about Badri Lal (PW-2).  He himself admitted that he was  

facing some charges and, therefore, he did not depose about the incident because he was afraid of  

Police.  Therefore, the criminal background, in our opinion, would not be of much consequence,  

though while appreciating their evidence, that fact has to be borne in mind.  At the same time, it  

has to be borne in mind that the two witnesses claimed to be eye-witnesses and Lokendra Singh  

(PW-1) had lost his brother.  He could not be expected to let off the persons, who were, in fact,  

guilty of assault on his brother.  In his evidence, he has referred to the strange relations between the  

accused and his brother.  In his Examination-in-Chief, he has specifically attributed the specific act  

to appellants Murli and Heera.  Their names very clearly appearing in the First Information Report,  

which was immediately lodged.  He has also referred in the First Information Report, to the father’s  

name of both these persons, as well as, Caste and the towns that they belong to.  Lokendra Singh  

(PW-1) was also injured during the incident and his injuries have been established on record.  In  

his Examination-in-Chief, he has specifically stated that Badri Lal (PW-2), who was present, was  

shouting.  It was in his presence that the inquest report, as well as, the spot panchanama were  

prepared.  He gives a specific explanation as to why he has not noted the number of tractor, in  

which the accused had fled.  In his cross examination, it has come that he knew Heera and Murli  

even before the incident.  He was candid to admit in his cross examination that except accused  

Heera and Murli, he could not say as to which weapons were handled by each accused.  Thus, this  

witness had clearly identified Heera in  the Court  and had also named the accused Heera with  

reference to his father and the caste in the First Information Report.  Considering that this witness  

had given an immediate report within half an hour of the incident and that he has specifically told  

the names of Heera and Murli with reference to their fathers and their castes, there was hardly  

anything to disbelieve that he did not know Heera and Murli before the incident.   

7. We have seen the cross examination very closely.  However, we do not see anything

worth in the same, at least relating to the main incident.  The evidence of this witness was recorded  

more than once.  Firstly, it was on 1.3.1989, which was continued on 16.3.1989, when Bhanwar  

Lal (A-7) had not been arrested.  It was again recorded after ten years, on 26.9.1998, after the arrest  

of Bhanwar Lal (A-7).  Even then, substantive amount of evidence was the same.  He identified all  

the accused in the Court.  His story also remained more or less the same.  His cross examination  

started on 24.3.1999, where the First part of cross examination was regarding the criminal cases  

that he was facing including one murder case, which was still continuing against him.  In his cross  

examination, which took place after about 11 or 12 years, he was specifically asked on the subject  

of Identification Parade.  He had definitely committed some errors by saying that Heera and Murli  

were also put  in  for  the Identification  Parade that  day,  which was not  a fact.   The concerned  

Magistrate  has  deposed that  they were  not  put  for  Identification Parade,  as  their  identity was  

already established in the First  Information Report.   All  that the witness was asked was about  

Exhibit  P-28,  the  Identification  Panchanama  and  he  admitted  that  whatever  was  written  in  

Panchanama, was correct.  From this, the Learned Senior Counsel Shri Lalit urged that a sufficient  

opportunity was given to this witness.  We will go into that aspect a little later.  However, suffice to  

say that insofar as the basic incident is concerned, his evidence has remained unshaken as far as the  

present two appellants are concerned.  In fact, in his re-appearance, after 11 years, there is hardly  

any cross examination on the main incident.  He was mostly cross examined on the Panchanama  

and some insignificant contradictions were taken out in his evidence.  The other contradictions and  

omissions were as regards the accused Bheru (A-3), with whose case, we are not concerned here.  

Therefore, the evidence of this witness has remained unshaken in respect of the actual incident.

8. Same is  the  case  of  Badri  Lal  (PW-2).   We are  quite  mindful  of  the  fact  that  the  

statement of Badri Lal (PW-2) was recorded extremely late, i.e., after about 25 days of the incident.  

Strangely enough,  no explanation  thereof  was asked and there is  no cross  examination  of  the  

Investigating  Officer  on  this  issue.   This  is  apart  from  the  fact  that  Badri  Lal  (PW-2)  very  

specifically spoke about his criminal past and explained that since he was afraid of the Police, he  

did not go to the Police Station.  This witness was also examined, firstly, on 17.6.1989 and in his

cross examination, at the first instance, his criminal past was brought out.  There can be no dispute  

that the witness has a criminal past, but that by itself, may not be sufficient to throw his evidence,  

as has been done by the Appellate Court.  While we see the impugned judgment, it is evident that  

even the statements of other two witnesses, namely, Bajrang Lal (PW-3) and Durga Lal (PW-4)  

were recorded after about 23 days of the occurrence of the incident.  Those two witnesses turned  

hostile and hence, they were not believed.  However, insofar as this witness (Badri Lal – PW-2) is  

concerned, in Para 22 of the Appellate Judgment, it was held that the delay in recording of his  

evidence under Section 161 Cr.P.C. was fatal.  The Appellate Court did see that the name of Badri  

Lal (PW-2) was there in the First Information Report also, which gave great support to the fact that  

he was present.  The only reason that the Appellate Court has given is the late recording of his  

statement under Section 161 Cr.P.C. and that he was involved in number of criminal cases.  We are  

also not satisfied with the observation made.  Beyond this, the Appellate Court has not dealt with  

his evidence at all.  The Public prosecutor took us through the evidence of Badri Lal (PW-2) in  

detail and we find that there is absolutely nothing to disbelieve insofar as the evidence relating to  

the main incident is concerned. He claimed that in his evidence, it has come that he had no dispute  

with the accused and rather he was friendly with them.  He also claimed that he saved Lokendra  

Singh (PW-1).  He candidly admitted that he did not go to the Police Station, that was probably  

because PW-1 had already gone to the Police Station.  The only material omission, which has come  

in is about his not having stated in the statement under Section 161 Cr.P.C. that Murli was armed  

with Lathi.  In his cross examination itself, the position of the accused persons, while assaulting,  

has come on the record.  As if all this was not sufficient, it has come in his evidence that there was  

a 200W Bulb, burning in the lane, the tube lights of the hotel were on and its light was coming in  

the lane.  It has also come in his evidence that the municipal electric pole from the lane was at a  

distance of 45 Feet.  Thus, it was in the cross examination that the source of light was brought in.  

Second round of  recording of  his  evidence was took place on 17.3.1993.   Again,  the  witness  

unmistakably pointed out the roles played by the two appellants and the weapons that they were  

armed with.   There  can be  no  doubt  that  the  witness  was  of  criminal  character  and that  his

statement was recorded later, but even then, if that caution is kept in mind while appreciating the  

evidence and if his evidence inspires upon confidence, it is not incorrect to accept such evidence.  

However, for that purpose, his evidence has to be scrutinized very closely.  This is apart from the  

fact  that  an opportunity has  to  be given to the  Investigating Officer  to  explain  as  to  why the  

statement was recorded late.  Applying all these tests, we do not think that his evidence was liable  

to be thrown only on the ground that he had a criminal past and his statement was recorded late.  

Therefore,  we  are  of  the  opinion  that,  applying all  these  tests,  his  evidence  as  against  two  

appellants, is acceptable.   

9. This takes us to the question argued by the Learned Senior Counsel for the appellants  

regarding the wrong identification made by Lokendra Singh (PW-1), wherein he had identified  

accused Bheru as Heera.  We have seen the Exhibit P-28.  Exhibit P-28 stands proved by Tara  

Chand Soni (PW-15).  We have seen the evidence of PW-15 closely.  Though Exhibit  P-28 is  

exhibited on the basis of the evidence of the said witness,  he has not stated in his substantive  

evidence that Lokendra Singh (PW-1) called Bheru as Heera.  It is a comment made by Heera,  

which has been incorporated in the document in Column No. 7, which reads as under:-

“Yah Aadmi ladai me majud tha, isliye janta hun.  Main iska naam pahle se janta hun.“

Thereafter, in Column No. 9, he named the said person as Heera S/o Hardev, Caste  

Gujjar, R/o Gamach.

10. We have also seen the evidence of Lokendra Singh (PW-1) very closely on this issue.  

Undoubtedly, he has committed an error in suggesting that Heera and Murli were also put in for  

Identification Parade, which is not a fact.  That was an obvious mistake.  This may be because of  

the lapse of memory because he has referred to these facts only in the second installment of his  

evidence, which was recorded after about 11 years.  We do not attach much importance to that,  

though the Learned Senior Counsel for the appellants earnestly urged that we must take note of this  

mistake.  The Learned Senior Counsel for the appellants then invited our attention to the following  

sentence in his cross examination:-

“In Exhibit P-28, whatever I have stated before the Magistrate at X to Y, was stated correctly.”

From this,  the  Learned  Senior  Counsel  urged  that  the  witness  was  given sufficient  

opportunity to explain his earlier statement made to the Magistrate and that is how we will be able  

to read the contents of Panchanama and accept the same as substantive evidence.  We do not agree.  

The contents of the Panchanama are not the substantive evidence.  The law is settled on that issue.  

What is substantive evidence is what has been stated by the Panchas or the concerned person in the  

witness box.  Again, even if we accept the extreme preposition, anything and everything stated in  

the Panchanama can be read as the substance evidence, still the fact remains that in this case, the  

witness  who  has  supposed  to  have  made  the  statement  to  the  Magistrate,  is  not  given  an  

opportunity to explain the same.  The portion marked from X to Y is in Column No. 7 of the  

Panchanama, where he had made the statement as above.  However, there is no cross-examination  

or no question put to him about the contents of Column No. 9, where he has taken the name of  

Heera.  The statement  in Column No. 7 amounts to his previous statement and unless he was  

confronted with the statements specifically and asked to explain, such statement cannot be used.  It  

is trite law that a previous statement of the witness, even if admissible in evidence, cannot be used  

against the witness, unless the witness is confronted with the same and his attention is invited.  In  

his substantive evidence, the witness has never made a statement that he had identified Bheru as  

Heera.  So much so that there is nothing in the evidence, which suggests that Heera and Murli were  

ever identified by him.  His admitted case was that he knew Heera and Murli  even before the  

incident  took  place.   It  is  an  admitted  position  that  Heera  and  Murli  were  never  put  in  for  

identification  in  the  Identification  Parade.   Under  such  circumstances,  the  insignificant  

circumstance in the Test Identification Panchanama to the effect that the witness had identified  

Bheru and named him as Heera, cannot amount to the substantive evidence and further it cannot be  

used, as that statement was never specifically put to the witness.  This is apart from the fact that  

even if  the  witness  was  confronted with  his  previous  statement,  there  is  other  over-whelming  

evidence to the effect that witness had in fact known Heera and had identified him and named him  

in the First Information Report.  We may also point out that a statement that he knew Heera from

the  beginning  and  even  before  the  incident  took  place,  has  gone  completely  unchallenged.  

Strangely enough, that fact has been brought in his cross examination.  We have, therefore, no  

hesitation in accepting the evidence of Lokendra Singh (PW-1).  We have also given our reasons as  

to why the evidence of Badri Lal (PW-2) was also acceptable and that the High Court should not  

have rejected the same.  Once we see the evidence of Badri Lal (PW-2), there are hardly any inter  

se contradictions in between the evidence of Lokendra Singh (PW-1) and Badri Lal (PW-2).  In  

that view, the active role played by Heera and Murli is obvious.

11. The Learned Senior Counsel for the appellants further urged that Murli had given only  

one blow and there could not be an intention of committing murder.  It has come in the evidence of  

Dr. Vinod Kumar Dhingra (PW-10) that besides the incised wounds, the deceased also suffered the  

fracture.  What was tried to be argued by the Learned Senior counsel was that Dr. Vinod Kumar  

Dhingra (PW-10), in his evidence, had stated that the deceased had died on account of asphyxia  

due to complete incised injury to trachea.  The Learned Senior Counsel tried to argued that if this  

alone was the injury resulting in death, then some advantage should be given to Murli who was  

merely handling a Lathi.  The accused persons, as per the charges, were charged with the offence  

under Section 302 substantively.  In addition to that, all the accused were also charged with the aid  

of Section 149 IPC.  It is obvious that both the appellants had specifically taken part in the assault,  

their presence was established, their overt acts were also established.  It was further established that  

while Heera had given the blows with the aid of a sharp edged weapon, Murli had assaulted the  

deceased with Lathi on the head.  In that view, both the accused can be convicted.  The High Court  

in the appellate judgment, however, has not discussed any of these aspects and has merely chosen  

to dismiss the appeal and thereby confirming the conviction ordered by the Trial Court with the aid  

of Section 149 IPC.  That undoubtedly was incorrect.  The High Court  ought to have given a  

specific finding.  However, the fact remains that these two appellants were found to have inflicted  

the injuries with sharp edged weapon, as well as, Lathi.  They have also been individually charged  

with the offence under Section 302 IPC.  In that view, they were bound to be convicted for the  

offence under Section 302 read with Section 34 IPC.  They came together on the spot, they also

gave abuses to the deceased and thereafter, acted along with each other.  Therefore, we have no  

hesitation in upholding the conviction, but not with the aid of Section 149 IPC, but with the aid of  

Section 34.  Unfortunately, the High Court has not discussed this aspect of the case.  We, therefore,  

find no merits on this ground.

12. We,  therefore,  hold  that  the  appeal  has  no  merits  and  has  to  be  dismissed.   It  is  

accordingly dismissed.

.………………………..J.   [V.S. SIRPURKAR]

………………………..J.  [CYRIAC JOSEPH]

NEW DELHI August 18 , 2009.