24 April 1996
Supreme Court


Case number: Appeal Criminal 499 of 1986






DATE OF JUDGMENT:       24/04/1996


CITATION:  JT 1996 (4)   719        1996 SCALE  (4)8



JUDGMENT:                       J U D G M E N T PATTANAIK, J.      These three  appeals arise  out of  one  and  the  same Sessions Trial  being Sessions Trial No. 26 of 1984 where in appellant -  Jai Bhagwan  stood charged   under  Section 302 I.P.C. and  the two  other  appellants  were  charged  under Sections 302/34 I.P.C., alternatively under Sections 302/114 I.P.C. All  of them  were also  charged  under  Section  460 I.P.C.  The  learned  Additional  Sessions  Judge  acquitted accused  -  appellant  Maman  but  convicted  appellant  Jai Bhagwan under  Section 302  I.P.C. as  well as under Section 460 I.P.C.  for having  intentionally caused  the murder  of deceased Sanjay.  He  also  convicted  accused  -  appellant Chhanno under  Sections 302/109 I.P.C. While Jai Bhagwan was given death sentence for conviction under Section 302 I.P.C. and was  further sentenced  to undergo  imprisonment for ten years under  Section 460  I.P.C. Chhanno  was  sentenced  to imprisonment for  life for  her  conviction  under  Sections 302/109 I.P.C.  Against her  conviction and sentence Chhanno preferred an  appeal which was registered as Criminal Appeal No. 203-DB  of 1985.  Jai Bhagwan  also preferred  an appeal against his  conviction and sentence which was registered as Criminal Appeal  No. 233-DB  of 1985  and against  the death sentence, the  reference to the High Court was registered as Murder Reference  No. 3  of 1985.  Against the  acquittal of Maman, State  also preferred  an appeal which was registered as Criminal  Appeal No.  255-DBA of  1985. All these appeals were heard  by the  Division Bench of the Punjab and Haryana High Court.  While Justice K.S. Tiwana not only affirmed the acquittal of  Maman but  also acquitted  two  other  accused appellants who  had been convicted by the learned Additional Sessions Judge.  Mr. Justice  B.S. Yadav  disagreed from the conclusions  of   Mr.  Justice   Tiwana  and  confirmed  the conviction of  Jai Bhagwan  under  Section  302  I.P.C.  but altered the  sentence from  death to  imprisonment for life. The conviction  and sentence  under Section  360 I.P.C. was,



however, maintained.  The conviction and sentence of accused Chhanno passed  by the learned Additional Sessions Judge was maintained. The  order of acquittal of accused Maman was set aside and he was convicted under Sections 302/114 I.P.C. and was sentenced  to imprisonment  for life  and he was further convicted  under   Section  460   I.P.C.  and  sentenced  to imprisonment for  10 years.  In view  of the  difference  of opinion between the two learned Judges the case was heard by the 3rd  Judge. who by his Judgment dated 24th January, 1986 agreed  with  the  conclusion  of  Justice  B.S.  Yadav  and convicted accused  Jai Bhagwan under Sections 302 as well as 460 I.P.C.  and sentenced  him to  undergo imprisonment  for life  for   conviction  under   Section   302   I.P.C.   and imprisonment  for   10  years   under  Section  460  I.P.C., sentences to run concurrently. He also maintained conviction and sentence  of accused Chhanno passed by the learned Trial Judge. So far as the acquitted accused Maman is concerned he also set  aside the  order of  acquittal and  convicted  him under  Sections   302/109  I.P.C.   and  sentenced   him  to imprisonment for  life. In  view of the majority view of the High  Court,   the  appellants   thus  being  convicted  and sentenced differently  as stated  above have preferred these appeals.      The prosecution  case in  nutshell is  that Chhanno and her husband Maman were living as tenants in the house of one Manoharlal at  Kharkhoda in  the district  of  Sonepat.  Dr. Radha Krishan, PW. 4 had his house nearby. On 7th of August. 1982 there was altercation amongst the ladies of the Moholla while taking  water from  the common  water tap  and at  the instance of  PW. 4  Chhanno was  assaulted. Maman  went to a lawyer and  wanted to file a complaint against PW. 4. on the very day  i.e. 7th  of August.  1982. PW.  6 as  well as two other persons made a complaint to the Station House Officer, Kharkhoda Police  Station against Maman and Chhanno. All the parties were called by the police officer and the matter was compromised.  Jai   Bhagwan  was  a  sepoy  in  the  Central Secretariat Security  Force, Ministry  of Home  Affairs, New Delhi.  He   had  married  Madhubala,  PW.  1,  daughter  of Manoharlal  who  was  the  landlord  of  accused  Maman  and chhanno. The  further prosecution  case is, Jai Bhagwan came to his father-in-law’s house at Kharkhoda on 18th of August, 1982 at  9 P.M.  and after  taking his  meals  went  to  the tenanted portion  of the house where Chhanno was staying and did not  return till late night. On the next morning i.e. on 19th August, 1982 said Jai Bhagwan was called by Chhanno and he took  his tea with her and stayed with her for about half an hour. Maman and Chhanno then went to Sonepat and returned back to  Kharkhoda in the evening. Immediately on the return Chhanno called Jai Bhagwan. Madhubala after waiting for some time, when found her husband had not returned, went to outer door of  Chhanno’s house  to find  out what  her husband  is doing there.  She then  heard the conversation between Maman and Jai  Bhagwan and  Maman was  asking Jai  Bhagwan to kill Radha Krishan,  PW. 4 as he has been harassing them. Chhanno also persuaded  Jai Bhagwan to kill Radha Krishan. Some time thereafter Jai  Bhagwan returned  to his  house and  started sharpening a  knife whereas his wife Madhubala persuaded him not to  commit the murder. Jai Bhagwan did not listen to her and on  the other  hand threatened  to kill  her in case she disclosed this  fact to anybody else. During the night while Radha Krishan,  PW. 4  his wife  and daughter  slept on  the first floor of the house, his son Sanjay was sleeping in the verandah on  the ground floor. All of a sudden Radha Krishan heard the  loud voice of his son Sanjay he therefore shouted and ran  downstairs. While  coming down  he saw  Jai Bhagwan



running away after extracting, the knife from the abdomen of Sanjay. When  Radha Krishan  shouted, Ami  Chand, PW.  2 and Gian Chand  PW. 3,  woke up,  who were sleeping in the lane, and found both Jai Bhagwan and Maman coming out of the house of Radha  Krishan and  running away.  They also saw Chhanno, standing in  the street.  Madhubaila  PW.  1  also  saw  her husband Jai  Bhagwan and Maman coming out of Radha Krishan’s house. PWs  2 and 3 chased the accused persons but could not overtake them.  Radha Krishan,  PW. 4  went  to  the  police station at  Kharkhoda and  gave his report at 1 P.M. on 20th August, 1982  which was  stated as  F.I.R. The  Inspector of Police, PW.  21 recorded  the First  Information Report  and then started  to the  place of occurrence for investigation. He sent for finger-print experts and dog squad, prepared the inquest report  on the  dead body  of Sanjay and sent it for post mortem  examination. The finger-print expert found some finger-print impression  on a  lock and  a small  mirror. On completion of  investigation  charge  sheet  was  filed  and thereafter the  accused persons  were committed.  They  were tried by  the learned  Additional Sessions  Judge as already stated. The  defence plea  is one of denial. The prosecution examined as  many as  21 witnesses  of whom  PWs 1  to 4 are relevant witnesses  in unfolding  the different parts of the prosecution story. The Doctor, PW. 18 had conducted the post mortem examination  on the dead body of Sanjay Kumar and had found 7  incised wounds  on the  different parts of deceased Sanjay Kumar.  According to  him the death was on account of injuries to  vital organs  like heart  and lungs  which  was sufficient for  death in  the normal  course of life and the injuries  could  be  possible  with  a  knife.  The  learned Additional Sessions  Judge did not place any reliance on the evidence of  Pws 1,  2 and  3 and came to hold that they had not chased anybody and have been falsely introduced into the picture. So  far as  statement of  Madhubala PW  1, wife  of accused Jai  Bhagwan. the  learned Additional Sessions Judge did not  rely upon  her statement relating to her seeing Jai Bhagwan and  Maman entering  into the  house of Doctor Radha Krishan and  at that  time someone  was standing outside the house. He, however, relied upon the evidence of PW 4 who saw Jai Bhagwan  running away  from the  place of occurrence and further relied  upon the  conduct of  Jai Bhagwan  in making statement while  in custody  pursuant  to  which  knife  was recovered, which  knife  according  to  doctor  could  cause injury on  the Sanjay.  On  a  thorough  discussion  of  the evidence  on   record  ultimately   the  learned  Additional Sessions Judge  acquitted Maman  but convicted  Jai  Bhagwan under Sections  302 and  460 I.P.C.  and  convicted  Chhanno under sections  302/109 I.P.C. On appeal when the matter was first heard by the Division Bench, Justice Tiwana one of the learned Judges  constituting the  Division Bench disbelieved all the  prosecution witnesses  and confirmed  the order  of acquittal passed by the learned Additional Sessions Judge so far  as  accused  Maman  is  concerned  and  set  aside  the conviction  of  two  other  accused  appellants  namely  Jai Bhagwan and  Chhanno. But  Justice Yadav  the other  learned Judge of  the Division Bench relied upon the evidence of PWs 1, 2,  3 and  4 and  confirmed the conviction of accused Jai Bhagwan and  set aside  the order  of acquittal of Maman and convicted him  under sections 302/109 I.P.C. He also altered the conviction of accused Chhanno from 302/114 I.P.C. to one under 302/109  I.P.C.. When  the matter  went to  the  third Judge, he  agreed  with  the  findings  and  conclusions  of Justice Yadav  and convicted  the appellants  and hence  the present appeals.      Mr. Sushil  Kumar, learned Senior Counsel appearing for



the appellants  namely Chhanno  and Maman  contended that in the  F.I.R.  the  names  of  two  appellants  had  not  been mentioned. The  evidence of  Madhubala. wife  of accused Jai Bhagwan to  the effect  that she  heard so called conspiracy between Maman,  Chhanno and  Jai Bhagwan  had  rightly  been discarded by  the Trial  Judge and  the High Court committed error in  relying upon  the same.  He further contended that the evidence  of PWs 2 and 3 could not have been accepted in view of inherent inconsistencies in their version and at any rate even if the same is accepted no conviction can be based on the  same since they merely saw Chhanno and Maman running away on  the street.  Lastly, he  contended that even if the evidence of  Madhubala, PW  1 is accepted, but the so called abetment alleged  to have  been made by Chhanno and Maman is to kill  the Dr.  Radha Krishan,  PW4 and  not his  son  and therefore in the matter of killing the son there had been no abetment.  We   find  sufficient   force  in  the  aforesaid contentions  of   Mr.  Sushil  Kumar.  The  learned  counsel appearing for  the State  on the  other hand  contended that there would  be no  reason for  Madhubala the  wife  of  Jai Bhagwan to  depose against  her own  husband  and  the  said evidence of PW 1 if read with the evidence of PWs 2 and 3 it must be  held that  the prosecution  case  against  all  the accused  has   been  proved  beyond  reasonable  doubt.  The question, therefore,  arises  for  consideration  is  as  to whether the evidence of PWs 1, 2, 3 and 4 can be believed so far as  appellants Chhanno  and Maman are concerned and even if believed  can it  be said that they committed the offence of abetment of murder of Sanjay?      As has  been stated  earlier in the F.I.R. lodged by PW 4, there has been no mention of Maman and Chhanno. Though it was stated  that PWs  2 and 3 came to the spot of occurrence immediately and  saw Jai  Bhagwan running  in  the  electric light, if PWs 2 and 3 would have also seen Chhanno and Maman running on  the street  they would have definitely mentioned the same  to PW  4 at  the spot of occurrence immediately on hearing the  shout of PW 4. PW 2 no doubt in his evidence in chief had  stated to have seen Maman coming out of the house of Dr. Radha Krishan and Chhanno was standing near the water tap. But  in his cross-examination he candidly admitted that even though  he reached  the house of PW 4 after hearing the noise he did not enter the house nor did he know what happen inside the house. He further stated that it was a dark night being new moon day. He also stated that police have recorded his statement  twice. No  explanation has been offered as to why  his   statement  was  recorded  twice.  In  his  cross- examination  he   stated,  by  the  time  he  reached  Radha Krishan’s house police was already there but he did not know what the  police was  doing. It  is difficult to rely on the statement of  PW 2  and  even  if  it  is  relied  upon  his statement would  indicate that  he  saw  accused  Maman  and Chhanno on  the road  at the time of occurrence. PW 3 who is the other  prosecution witness is also not reliable inasmuch as even  though he was a witness in an earlier criminal case against Maman and Chhanno but he denied the same. Like PW 2, he stated in his statement in chief that he saw Maman coming out of  the house  of Radha Krishan and Chhanno was standing outside.  In   his  cross-examination  he  stated  that  his statement was  recorded by  the police  at 7  A.M. It may be noted that  according to  PW 2 the Police was present by the time he  reached the  house of  Radha Krishan and the police recorded his  statement.  whereas  according  to  PW  3  his statement was  recorded at 7 A.M. The Investigating Officer, PW 21  on the  other hand  stated that  when he  reached the place of  occurrence though many people were present but the



statement of  PW 3  had not  been recorded then and PW 3 met him only  on the  next day. In the aforesaid premises we are of the  considered opinion that no reliance can be placed on the testimony of PW 3. It may also be noted that even if his statement is  accepted it  proves only  the fact that he saw Maman and  Chhanno at  about  the  time  of  occurrence  and nothing further.  Now  coming  to  the  evidence  of  PW  1, Madhubala. she  stated in  her cross-examination  that  even though her grand father was there in the house but she never disclosed  about  her  seeing  of  Chhanno  and  Maman.  She admitted in  her cross-examination  that  she  did  not  say before the  police that  Maman has  directed her  husband to kill Radha  Krishan. She  had even  stated before the police that her  husband had  threatened her  not to make noise and that she  had not stated Sanjay, son of doctor being killed. About her  statement  in  chief  that  she  could  hear  the discussion between  Maman and  Jai Bhagwan  and the  plan to kill the doctor, it is difficult to believe. Coming to PW 4, he had  not implicated  Maman and  Chhanno anywhere  in  his evidence and  he has  implicated only Jai Bhagwan to whom he saw running away from the house. This being the evidence, we have no  hesitation to  come  to  the  conclusion  that  the prosecution has  utterly failed  to establish  the charge of abetment of  murder against the appellants Chhanno and Maman and therefore  conviction and  sentence cannot be sustained. It may  be further  stated that  even Madhubala never stated that there  was any plan, if such plan is to be believed, to kill Sanjay  but on  the other hand the so called inducement was to  kill Doctor.  PW 4. If that be so, but actually when Sanjay was  killed how  can the charge of abetment of murder of Sanjay  can be  held to  have been established? We do not think it  necessary to further delve into the matter in view of our conclusion that the evidence of PWs 1, 2 and 3 cannot be relied  upon to  bring home  the charge against Maman and Chhanno.  Accordingly   we  set  aside  the  conviction  and sentence of accused Maman and Chhanno.      But so far as accused Jai Bhagwan is concerned the same stand on  a different footing. PW 4 in the F.I.R. had stated that soon  after he  came down  stairs he  saw  accused  Jai Bhagwan leaving  his house  with a knife in his hand. In his evidence in  court he  has no  doubt made an exaggeration by stating that  he saw  accused Jai  Bhagwan Pulling  out  the knife from  abdomen of  Sanjay and  running.  But  the  said exaggeration and  embellishment has  to be discarded and the substantive part  of his  evidence that  he saw  accused Jai Bhagwan running away from the house with a knife in his hand has  to  be  accepted.  The  evidence  of  PW  1.  Madhubala implicating. her  husband cannot  be doubted  inasmuch as no reasons have  been given  as to  why the  wife would falsely depose against  her husband. Her evidence indicates that Jai Bhagwan had  some illicit  relationship with  Chhanno and it may be  to please  Chhanno, Jai Bhagwan went to the house of PW 4  and committed  the ghastly act. Jai Bhagwan also while in custody made a statement in pursuance of which the knife, Exhibit P-1 was recovered. The Doctor, PW 18 opined that the injury on  the deceased  could be  inflicted with  the  said knife. The  knife in  question was sent for serological test and was  found having human blood. The cloths of Jai Bhagwan had been  seized and  sent for  chemical examination and the report of  the Chemical  Examiner indicates  that there  was numerous medium  and small  blood stains.  though he has not been able to say whether it was human blood or not.      Over and  above the  aforesaid incriminating  materials the report  of the  finger print  expert indicates  that Jai Bhagwan’s finger-print  was found on the mirror and the lock



of PW-4’s  house. Jai  Bhagwan no doubt took a plea of alibi that he  was sleeping  in his father-in-law’s house but this is falsified by the evidence of his wife Madhubala. PW 1. In the aforesaid  premises the  conclusion is irresistible that the charges  against appellant  Jai Bhagwan have been proved by the  prosecution beyond  reasonable doubt  and  the  same cannot be interfered with.      In the  ultimate analysis. therefore, the conviction of appellants Chhanno  and Maman  are set  aside and  they  are acquitted of  the charge  levelled against  them, their bail bonds stand discharged. Criminal Appeal Nos. 499 of 1986 and 247 of  1986 are  accordingly  allowed.  The  conviction  of appellant Jai  Bhagwan and  sentence  passed  thereunder  is affirmed. Accordingly  Criminal Appeal  No. 39  of  1987  is dismissed.  His  bail  is  cancelled,  he  should  surrender forthwith for serving the sentence.