Crl.A. No. 472 of 2007 1

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  NO. 472 OF 2007

Sudhir                 …Appellant

Versus   State of Haryana                …Respondent

WITH

CRIMINAL APPEAL  NO. 666 OF 2007

JUDGEMENT  

These two appeals, one by Sudhir (A-1) and the other by Jagdev  

(A-2), arise out of the judgment of the High Court of Punjab and Haryana  

at  Chandigarh  confirming  the  convictions  and sentences  passed up on  

them by the Sessions Judge, Bhiwani. The appellants were indicted  for  

the murder of Prabhu Ram and for disappearance of the evidence in order  

to  screen  them  from  legal  punishment.  The  Sessions  Judge,  Bhiwani  

convicted them for  the offences under Sections 302 and 201 read with  

Section 34, IPC and sentenced them to undergo rigorous imprisonment for

Crl.A. No. 472 of 2007 2

life and other sentences.  The High Court concurred with the view of the  

trial court.  

2. We heard the counsel for the parties and at the conclusion of the  

arguments, we pronounced,   ‘Both appeals are allowed’.   We indicate   

the reasons therefor.  

3. Prabhu Ram (aged about  65 years) was unmarried and resided  

with his cousin Ram Chander (PW-4) in  village Palri (P.S. Sadar, Dadri),  

although he occupied a separate room.  He used to deal with the purchase  

and sale of goats. PW-4 has three sons, Satbir, Dhillu Ram and Madan.  

Satbir  is  employed  as  clerk  in  the  Cooperative  Bank,  Mahendergarh.  

Prabhu Ram had given his  landed  property  to  the sons of  PW-4.  On  

January 9, 2001 at about 8.00 a.m., the dead body of Prabhu Ram  was  

spotted   by  Sarpanch Rishi  Pal (PW-3) lying in the pit  near  the firni  

(circular road of the village) in front of the  house of Vidya Nand.  PW-3  

went to the house of PW-4 and informed him  as to what he had seen.  

PW-4 then reached the spot and found  Prabhu Ram’s  body lying in the  

pit.   He did not go to the  Police Station immediately but called his son  

Satbir  from Mahendergarh.   The first  information  report  (F.I.R)   in  this  

regard was lodged by him at Police Station, Sadar Dadri, sometime at 2.30  

p.m. He suspected that Prabhu Ram has been murdered by A-1 and A-2.

Crl.A. No. 472 of 2007 3

It was stated in the FIR that the previous night, i.e. on January 8, 2001,  

Prabhu Ram left the house at about 7.00 p.m. to collect payment of goats  

from Satbir   son of  Suraj  Bhan.  When  Prabhu Ram reached  near  the  

house of Sher Singh,  A-1 and A-2, who were coming from the opposite  

side pushed Prabhu Ram against the wall. Babu Lal (PW-5) who was also  

coming from Budhwana  intervened.  A-1 and A-2 were under the influence  

of  liquor and they were saying  that  they would not spare him (Prabhu  

Ram). Due  to intervention of PW-5, Prabhu Ram went towards the firni; A-

1 and A-2 went towards the village pond and PW-5 went to his house.   

4.  At about 3.30 p.m. or so on January 9, 2001, Amar Singh (PW-14)  

started investigation and reached the spot. The photographs of the dead  

body were taken; inquest report was prepared; the place of incident was  

inspected and a rough site plan was prepared; the blood stained earth and  

the brickbats were taken into possession.  The dead body was sent  for  

post-mortem examination and statements  of  the witnesses viz.,   PW-5,  

Sube Singh (PW-6) and Suresh (PW-7) were recorded. A-1 and A-2 were  

arrested on January 12, 2001; their  clothes  were taken possession of  

and  sent to Forensic Science Laboratory along with stained earth and the  

brickbats.  

5. The  Sessions  Judge  as  well  as  High  Court  accepted  the

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prosecution case and rejected the plea of the accused.  

6. The prosecution case mainly rests on the  evidence of PW-6 and  

PW-7.  But before we consider their evidence as well as evidence of PW-

5, we think it is appropriate to have a   look at the medical evidence.  Dr.  

Ishwar  Singh  (PW-1)  conducted  the  post-mortem of  the  dead  body of  

Prabhu Ram on January 10, 2001 at 10.30 a.m.  He found  the following  

injuries on the person of the deceased:

1. A lacerated wound 4 cm x 2 cm into bone   deep on left side of posterior aspect of parietal  

region. On further dissection, echyomosis was  present.

2. A lacerated wound 1.5cm x 1cm into bone deep  on the right side of parietal region just above the  right ear. On further dissection, underlying bone  was  fractured  and  there  was  subdural   haemotoma present under the bone.

3. A lacerated wound on the right eye brow size  1cm x 5cm. On dissection, echymosis was present.

4. A  contusion  around  the  right  eye.  On   dissection echymosis was present.

PW-1 also made the following observations :

“Scalp, skull and vertebrae already described. Vertebrae  was not opened. Membrances, brain   and spinal cord  were congested. Walls ribs and cartilages were healthy.  Plourea was congested. Larynx and trachea; Fine froth  was present and fine mud was also present. Right lung:  oedematous  and  bulky.  On  dissection,  blood  stained  frothy fluid came out. Left lung: Oedematous and bulky.  On  dissection,  blood  stained  frothy  fluid  came  out.

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Pericardium, heart and large vessels were healthy. Left  side  of  heart  was  empty.  Right  side  was  containing  some blood. ABDOMEN : were healthy. Peritoneum was  congested.  Mouth,   pharynx  and  oesophagus  were  congested  and  mud  was  present.  Stomach  and  its  contents distended. Fluid and mud was present. Small  intestines and large intestines were distaned and semi  digested  food  was  present  in  small  intestines  and  faecalmatter was present in large intestines. Liver was  congested  and  healthy.  Spleen  was  congested  and  healthy. Kidneys were congested and healthy. Bladder  was empty. Organs of generation were healthy.”

According to PW-1, the cause of death was asphyxia due to drowning and  

the death took place about 18 to 48 hours before the post-mortem. In his  

cross-examination,  he  stated that none of the injuries was bleeding as  

these were either lacerated wounds or contusions.  He also stated that if  

the aforesaid injuries were caused with brickbats then these brickbats may  

or may not have blood stains. PW-1 also stated that the deceased  had no  

sign of intoxication;  he might  be semi-conscious when he breathed last.

7. The question presented before us is whether indictment of A-1 and  

A-2  for  the  murder  of  Prabhu  Ram  is  established  beyond  reasonable  

doubt.  The story set up by the prosecution is that on January 8, 2001,  

Prabhu  Ram left  his  house  at  about  7.00  p.m.,  after  taking  meals,  to  

collect payment from Satbir, son of Suraj Bhan. At about 7.30 p.m. while  

PW-5 was going to his house, he saw the accused A-1 and A-2 giving fist  

and slap blows to Prabhu Ram.   This incident happened near the house  

of Sher Singh.  PW-5 intervened; Prabhu Ram then went towards the firni

Crl.A. No. 472 of 2007 6

whereas A-1 and A-2 went towards the village pond.  Although, PW-5 is  

related to  Prabhu Ram, he did not  inform PW-4 immediately about  the  

beating  given by A-1 and A-2 to Prabhu Ram. After all Prabhu Ram was  

an elderly person while A-1 and A-2   were young men and ordinarily  such  

incident would not have been taken lightly by any relative of the victim.  

Then in his cross-examination, few material omissions have been brought  

out.  In any case,  his evidence does not help the prosecution  much in so  

far as charge of murder is concerned.  

8.  Now we turn to the evidence of  PW-6 and PW-7.  PW-6 deposed  

that on January 8, 2001 at about 8.00 p.m.  he was coming from village  

Jat-Bhurjat  to  village Palri.  At that time,  near the tubewell of  Sanwat,  

son  of  Dhan  Singh,  he  saw  A-1  and  A-2  beating  Prabhu  Ram  with  

brickbats; Prabhu Ram fell down. He asked A-1 and A-2 to leave Prabhu  

Ram but A-1 and A-2 threatened him that he would meet the same fate if  

he opened his mouth. He has stated that  Prabhu Ram was bleeding and  

A-1 and A-2 were under the influence of  liquor.  Little  terrified,  he went  

home. The next morning, i.e. on January 9, 2001, he went to work at his  

tubewell and  in the evening when he came back, he was told by his family  

members that Prabhu Ram has been murdered. It was then that on the  

next day, i.e. January 10, 2001 he went to the residence of PW-3 where  

PW-4  and  his  son   Satbir  were  already  there.  Apart  from   material

Crl.A. No. 472 of 2007 7

omissions that have been brought out in his cross-examination, on its face,  

serious  doubt arises regarding his  evidence.  He is a chance witness.  

That he is related to Prabhu Ram and PW-4 is not in dispute. Had he seen  

A-1 and A-2 beating Prabhu Ram with brickbats and as a result  thereof  

Prabhu Ram fell  down and was bleeding,   he would have gone to  the  

house  of PW-4  with whom Prabhu Ram used to live  and told him about  

the  incident.   Not  only  that  he  did  not  inform  PW-4  of  the   incident  

immediately  but  also  he  kept  quiet  for  more  than  24  hours.   His  

explanation that in the morning  on January 9, 2001, he went to work at his  

tubewell  and when he returned back in the evening that he came to know  

that Prabhu Ram has been murdered,  then he went to PW-4’s house  and  

told him about the incident hardly merits acceptance.  

9. Insofar as PW-7 is concerned, he deposed that on January 8, 2001  

at about 10.00 to10.30 p.m. when he reached near the house of Vidya  

Nand,  he  saw A-1  and  A-2  carrying  Prabhu  Ram.   He did  not  know  

whether Prabhu Ram was dead or alive.  Prabhu Ram was bleeding and  

A-1 and A-2 threw the dead body in the pit which fed  water.  According to  

him, he was on his scooter and  the lights were on. He stopped  and asked  

A-1 and A-2  why they were throwing Prabhu Ram in the pit but he was  

threatened by them to keep quiet otherwise he would meet the same fate.  

PW-7  stated  that  he  got  scared  and  went  home.   In  the  morning  on

Crl.A. No. 472 of 2007 8

January 9,  2001,  he went  to  his  shop  at  Mahendergarh  and when he  

returned in the evening at about 8.00 or 9.00 p.m., he came to know from  

his wife that Prabhu Ram has been  murdered.  On the next morning, i.e.,  

January 10, 2001 he went to the house  of PW-3 where he found PW-4,  

his son Satbir and PW-6  and there he disclosed what he witnessed on the  

night of January 8, 2001. Had he seen the incident like this, he would have  

immediately gone to the house  of PW-4 and told him about the incident.  

He would not have waited for more than 36 hours. Palri is a small village  

where everyone is familiar with everyone.    He  was riding his own two  

wheeler  and it would have hardly taken any time in reaching the house of  

PW-4.        Was it sheer coincidence that in the morning on January 10,  

2001, first PW-4 and his son Satbir reached the house of Sarpanch (PW-

3), then PW-6 reached that place followed by PW-7?  We do not think so.  

They all  gathered at  the house of  PW-3 to set  up PW-6 and PW-7 as  

eyewitnesses.   Incidentally, the names of  PW-6 and PW-7 do  not find  

mention at all in the F.I.R. On a  consideration of the matter we find that  

PW-6 and PW-7 have been planted as eyewitnesses. Both of them stated  

that they saw Prabhu Ram bleeding. However, PW-1 (Dr. Ishwar Singh)  

has categorically stated that the deceased had  four injuries and   none of  

the injuries was bleeding.  This also casts serious doubt whether brickbats  

at  all  could  have blood stains.   Moreover,  F.I.R.   was not  lodged with  

promptness  inasmuch as, although, PW-3 saw the dead body of Prabhu

Crl.A. No. 472 of 2007 9

Ram  lying  in  the  pit  on  January  9,  2001  at  about  8.00  a.m.  and  he  

informed  the  same to  PW-4 immediately  but  PW-4 went  to  the  Police  

Station at about 2.30 p.m. The time between 8.00 a.m. to 2.30 p.m. seems  

to have been used for consultations and deliberations and for introducing a  

false  story. The explanation by PW-4 that on coming to know the murder  

of Prabhu Ram, he phoned his son Satbir  at Mahendergarh and it  was  

only after  he reached the village that he went to the police station and  

lodged  the  F.I.R.  does  not  merit  acceptance  in  view  of  the  overall  

circumstances that have come on record.  The conduct of PW-4 is also  

little unnatural.   Prabhu Ram used to reside with him; he left  the house  

after having meals at about 7.00 p.m.  If he did not return home after some  

time,  the least  expected of  PW-4 was to find his  whereabouts.   It  was  

month of January and nights are extremely cold.  But until PW-3 informed  

PW-4 in the morning at about 8.00 a.m. or so on the next day, he did not  

care  to  find  out  where  Prabhu  Ram  was.    PW-4  sought  to  give  an  

explanation that  Prabhu Ram would not  return home in the night  some  

time.  To our mind, this explanation is not acceptable as he even did not  

lodge the FIR immediately after coming to know about the death of Prabhu  

Ram.  The dead body was found lying in a pit near the house of Vidya  

Nand but Vidya Nand has not been examined by the prosecution at all; his  

statement  was  not  recorded  under  Section  161  Cr.P.C.  nor  he  was  

tendered in evidence before the Court.  The enmity of PW-4 and his son

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Satbir with A-1 is clearly established on record.  On a close and severe  

scrutiny of the entire evidence let in by the prosecution, there appears to  

be  likelihood  of  attempt  to  falsely  implicate  A-1  and A-2.  The several  

factors  noticed  above  cast  serious  doubts  about  the  truth  of  the  

prosecution case.  

10. The present case turns on its own facts and the  evidence let in by  

the prosecution has to be seen in that light and it  is not necessary to cite  

decisions of this Court but  reference to two decisions of this Court may  

not be out of place. In the case of Surinder Singh v. State of Punjab1, this  

Court observed as follows :

“3. PW 2 went back to his house and dozed off for some  time and thereafter went and informed PW 3 at his house  as to what had happened. PW 3 went to the New Market  along with PW 2 and saw the dead body of Manjit Singh  lying there. He advised PW 2 to inform the matter to one  Jagan Nath and on PW 2 informing Jagan Nath he was  asked by the latter to inform one Kartar Chand, Municipal  Commissioner about the occurrence and accordingly PW  2 went and informed Kartar Chand. Thereafter it is said  that Kartar Chand took PW 2 to the police station and PW  2 lodged the first information report.

12. The conduct of PW 2 after the occurrence had taken  place has certainly to be viewed with suspicion. If he had  been a witness to the murderous attack on Manjit Singh,  it  would be natural to expect him to go and inform the  parents and relations of Manjit Singh of the occurrence  and also the police authorities. On the other hand what  PW 2 had done was to go to his house and sleep for  some time and then go and inform the matter to PW 3  and some others. The story of PW 2 that because of the  

1  1989 Suppl. (2) SCC 21

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threats of the appellant he did not go and inform anyone  forthwith  cannot  be  readily  accepted.  If  he  was  so  frightened at  that  time to  go and tell  others about  the  occurrence, it is not known how he was able to get over  his fears a few hours later and go and inform PW 3 and  others about what had happened.”

11. This  Court  in  Surinder  Singh,1  thus,  held  the  conduct  of  an  

eyewitness  suspicious  who after  seeing  the  occurrence   did  not  go  to  

inform parents and relatives of the deceased but went to his own house  

and after some time informed other persons. His explanation that he did  

not inform anyone because of threats  was found not acceptable.

12. In  Jaisingh  and  Ors. v.  State  of  Karnataka1,  this  Court  

observed as follows :

“5. As  already  observed  above,  the  entire  prosecution  story hinges on the evidence of PWs 30 and 33. A bare  reading of their evidence however shows that it cannot be  relied upon. Clearly the two were chance witnesses and  have not been able to explain the circumstances which  brought them to the place of incident at 6.30 a.m. PW 30  Kishore deposed that he had seen the incident along with  PW 33 Dhanaji Tukaram Mane from a distance of about  50  feet  while  he  was one  kilometre  away  from Village  Veeravade on Pakani-Veeravade road. Concededly all the  accused,  the  deceased  and  the  two  eyewitnesses  belonged to Village Veeravade and were thus co-villagers  known to each other. The conduct of this witness is truly  amazing.  As  per  his  evidence  he  reached  Veeravade  about half an hour after the incident but he did not inform  anybody as to what had transpired till 18-1-1997 or 19-1- 1997 when his statement under Section 161 CrPC was  recorded by the  police.  He  further  stated  in  his  cross- examination that he had gone to the police voluntarily and  had  not  been summoned.  The  statement  of  PW  33 is  

1  (2007) 10 SCC 788

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even more unreliable. He admitted that he was the first  cousin  of  the  deceased  and  that  after  witnessing  the  murder had gone on to Village Akola to meet his sister  and had returned to Village Veeravade after several days.  He also admitted in his cross-examination that the house  of the deceased was only 150 ft away from his house and  that he had not informed anybody about the murder till the  19-1-1997 on which he was confronted with his statement  under Section 161 CrPC wherein he had stated that he  had returned to Village Veeravade on the day after the  incident. We find it  absolutely impossible to accept that  this witness could have gone to Village Akola after having  been a witness to the brutal murder of his cousin and had  not even informed anyone from the family of the deceased  living only 150 ft away about the incident till 19-1-1997.

6. It  is true, as has been contended by Mr Hegde, that  some  allowance  must  be  made  for  the  fact  that  the  incident  had  spilt  over  to  two  States  or  that  the  two  witnesses had been so overtaken by fear on account of  the two warring political  groups in  the village.  We  find,  however that PW 30 gave no explanation as to why he  had kept quiet for almost six days whereas PW 33 did, in  a stray sentence, depose that he had been scared to talk  to anyone about the murder. To our mind, this explanation  is unacceptable as this witness had tried to hide the fact  that  he had returned to Village Veeravade from Village  Akola the day after the incident, and being the first cousin  of  the deceased, and living only 100 ft  away from the  latter’s house, still did not inform the family or anybody in  the village about the murder for a period of six days. This  bespeaks of absolutely unnatural conduct.

13. In our considered view the evidence of  PW-6 and PW-7 suffers  

from  inherent  improbabilities  and  we  do  not  find  it  safe  to  rest  the  

conviction of A-1 and A-2 on their evidence.  It is true that the findings of  

the  two  courts  are  concurrent   but  in  view  of  unreliability  of  two  

eyewitnesses (PW-6 and PW-7), the whole prosecution case is rendered  

inherently impossible of belief.

Crl.A. No. 472 of 2007 13

14. In the result, both appeals are allowed and the  judgment  

and order dated August 21, 2006 passed by the High Court of Punjab and  

Haryana  affirming  the  judgment  of  Sessions  Judge,  Bhiwani  dated  

September  5,  2003   is  set  aside.  The  appellants  are  acquitted  of  the  

offences under Sections  302 and 201 read with Section 34,  IPC.  They  

shall be released forthwith,  if not required in any other case.

……………… …… J.

    (Harjit Singh Bedi)

……………… ……. J.

New Delhi,             (R.M. Lodha) September 28, 2010