Non-Reportable  

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1878 of 2009

DHARAM PAL                                                                     .... Appellant(s)

Versus THE STATE OF HARYANA

                                            ….Respondent(s) With  

CRIMINAL APPEAL No.1879 of 2009 CRIMINAL APPEAL No. 1880 of 2009

CRIMINAL APPEAL NO. 1377/2017 IN   SLP (Crl.) No. 1745 of 2014

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted in Special Leave Petition (Crl.) No.1745 of

2014.

Accused  Nos.  2,  3,  5  and  6  have  filed  these  appeals

against  the  judgment  of  the  High  Court  confirming  their

convictions  and  sentences  passed  by  the  Sessions  Judge,

Ambala.  Accused No.1 did not prefer an appeal against the

judgment of the High Court.  The appeal filed by Accused No.4

abated due to his death.  

2. Bharat Bhushan Arora(hereinafter referred to as the deceased)

son  of Sh. Kanwal Nain Arora  was the owner of Bharat Furniture

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Udhyog,  Faridabad.    At  about  8:00 pm on 10.09.1996,  the

deceased  along  with  his  employee  Kamlesh  (PW-6)  left  for

Delhi on his scooter to purchase toughened glass sheets for TV

showcases.    He  was  scheduled  to  return  back  around

midnight.    As  he did  not  come home even at  2:00 am on

11.09.1996,  his  father  along  with  Ashok  Kumar  started

searching for him.  Initially, they went to the place from where

the deceased purchased the toughened glass sheets and were

informed that he left the shop at 11:00 pm after purchasing the

glass sheets.  They went to the house of one Mahinder around

04:30 am and were informed that the deceased met him earlier

in  the  evening  but  left  immediately  thereafter.   They  were

frantically  searching  for  the  deceased  and  finally  found  his

dead body around 5:30 pm on 11.09.1996 lying in the bushes

on the left  side of  the road,  at  a  distance of  one km. from

Anangpur Chowk towards Faridabad.   The scooter on which the

deceased was travelling was also lying 3-4 feet away from his

body.    They  observed  an  injury  mark  near  the  eye  of  the

deceased and blood on his face.  They were surprised to find

the body at that spot as, earlier in the day at around 2:00 pm

they had searched the same area but there was no sign of a

body being  there.  Kanwal  Nain  Arora  lodged a  complaint  at

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Police Station, NIT Faridabad which was registered as an FIR at

8:00  pm  on 11.09.1996  wherein  it  was  mentioned  that  he

suspected Kamlesh to have committed the murder.   

3. The investigation was initially carried out by A-4, Inspector

Ram Kumar who was assisted by A-5, Dharam Pal ASI and

A-6, Mawasi Ram ASI.   On completion of the investigation, a

closure report under Section 173 was filed on 11.01.1997 in

which it  was stated that the death was caused due to an

accident.   As the father of the deceased suspected that his

son was murdered, he requested the Government of Haryana

to  order  an  enquiry.   The  District  Magistrate,  Faridabad

ordered a magisterial enquiry to find out about the cause of

death of Bharat Bhushan.  The magisterial enquiry revealed

that the deceased died due to Asphyxia.  It was also found in

the enquiry that the deceased might have been killed and

his body was later placed on Surajkund-Faridabad road. As

there was a suspicion of involvement of police officers, the

report suggested that the investigation should be entrusted

to an agency other than the district police.

4.  Ultimately,  the  investigation  was  entrusted  to  Central

Bureau  of  Investigation  (CBI).  An  FIR  was  registered  on

28.11.1997  under  Section  302/34  by  the  CBI  and  further

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investigation was commenced.  Further  investigation done

by the CBI revealed that the deceased who was returning

from Delhi along with Kamlesh, the pillion rider holding the

glass sheets, stopped the scooter 2 kms. short of Anangpur

Chowk at around 11:30 pm on 10.09.1996 to ease himself.

Immediately after restarting, Upper Graded Constable Abdul

Hai (A-1), Constable Kamal Singh (A-2) and Dharam Raj alias

Sarpanch  (A-3)  came  from  the  opposite  direction  on  a

motorbike and signalled the deceased to stop.  A-1 and A-2

were  in  uniform  and  were  armed  with  rifles.    As  the

deceased did not stop the vehicle, the accused turned the

motorbike and as soon as their motorbike came parallel to

the scooter of the deceased, A-2 Kamal Singh gave a blow on

the head of  the deceased with  the butt  of  his  rifle.   The

deceased fell  down from the scooter  on  his  left  side  and

became unconscious.   Kamlesh Kumar also fell  down and

received injury on his left knee.  Most of the toughened glass

sheets  were  broken  into  pieces  except  two  glass  sheets

which were reduced in size.   A-1 to A-3 got down from the

motorbike and finding the deceased unconscious,  dragged

him to the nearby bushes. His scooter was also dumped at a

distance on the side of the road.  When A-2 attempted to

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assault Kamlesh (PW-6), he pleaded for mercy.  Kamlesh was

spared  on  the  condition  that  he  would  not  disclose  the

incident to anyone.  He was instructed to sit on the pillion of

the  motorcycle  and  was  taken  to  the  Sales  Tax  Naka  at

Anangpur Chowk by A-1 to A-3.  Kamlesh was made to hold

the  two  glass  sheets  and  the  helmet  of  the  deceased.

Thereafter, he was taken to the Police Station where he was

illegally detained till 15.09.1996. It was also disclosed during

the investigation that the dead body of Bharat Bhushan was

dumped at the place where it was found between 4:00 to

5:00  p.m.  on  11.09.1996  by  A-1  to   A-3.   In  the  inquest

report, Ram Kumar (A-4) mentioned that there was an injury

on the right side of the head with blood marks and swelling

on  the  right  eye.    The  post-mortem  was  conducted  on

12.09.1996 by  a  team of  doctors  and as  per  their  report

there  was  no mark  of  external  injury  on  the  body of  the

deceased.   The tongue had protruded between the teeth.

The lips were swollen and averted.  Blood stained froth was

coming  out  of  nostrils.   Nails  were  cynoised.   Larynx,

trachea, right lung, left lung, liver spleen, kidneys, mouth,

pharynx  and  oesophagus  were  found  congested  and  the

bladder was found empty.   After receipt of the report of the

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chemical examiner, the team of doctors gave an opinion to

the effect that the cause of death was due to Asphyxia.  It

was found during investigation that A-4 to A-6 manipulated

the  investigation  and  submitted  a  closure  report.   The

recovery  memo  regarding  seizure  of  blood  stained  earth

containing the blood of the deceased revealed that the blood

was of ‘A’ group whereas the blood group of the deceased

was of  ‘B’  group.  A-4 to A-6 conspired with A-1 to A-3 to

cover up the crime.  

5. After a detailed consideration, the Trial Court held that A-1 to

A-3  intercepted  the  deceased  with  a  motive  to  commit

robbery.  They actually robbed one golden chain, two golden

rings and money which was being carried by the deceased.

A-1 to A-3 were also found guilty of having committed the

murder  of  the  deceased.  A-4  to  A-6  were  acquitted  of

committing offences of murder and robbery but were found

guilty of committing offences under Section 218 read with

120 B IPC and Section 343 IPC. After convicting them, the

Trial Court sentenced the accused as follows:-

Conviction and Sentences Imposed Sr. No. Accused Conviction

under Charges

Sentences

1. A-1 Abdul Hai       

1 302 r/w 34 IPC Imprisonment for life and fine of  Rs.500/-  In default

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Imprisonment for 2 months.   

2 394 r/w  120  B IPC

Imprisonment for 7 years and fine of Rs.300/- In  default Imprisonment for 2 months.   

3 201 r/w  120  B IPC

Imprisonment for 3 years and fine of Rs.200/- In  default Imprisonment for 1 month.   

4 218 r/w  120  B IPC

R.I.  for  3 years.

5 343 r/w  120  B IPC

R.I.  for  3 years.  

2. A-2  Kamal Singh

1 302 r/w 34 IPC Imprisonment for life and fine of  Rs.500/-  In default Imprisonment for 2 months.   

2 394 r/w  120  B IPC

Imprisonment for 7 years and fine of Rs.300/- In  default Imprisonment for 2 months.   

3 201 r/w  120  B IPC

Imprisonment for 3 years and fine of Rs.200/- In  default Imprisonment for 1 month.   

4 343 r/w  120  B IPC

R.I.  for  3 years.  

5 218 r/w  120  B IPC

R.I.  for  3 years.

3. A-3 Dharam Raj @ Sarpanch

1 302 r/w 34 IPC Imprisonment for life and fine of  Rs.500/-  In default Imprisonment for 2 months.   

2 394 r/w  120  B IPC

Imprisonment for 7 years and fine of Rs.300/- In  default Imprisonment for 2 months.   

3 201 r/w  120  B IPC

Imprisonment for 3 years and fine of Rs.200/-

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In  default Imprisonment for 1 month.   

4 343 r/w  120  B IPC

R.I. for 3 years.

5 218 r/w  120  B IPC

R.I. for 3 years.

4. A-4 Ram Kumar 1. 218 IPC R.I. for 3 years. 2. 343 IPC R.I. for 2 years. 3. 218 IPC R.I. for 3 years. 4. 343 r/w  120  B

IPC R.I. for 3 years.

5. A-5  Mawasi Ram

218 r/w  120  B IPC

R.I. for 3 years.

6. A-6 Dharam Pal 1. 218 r/w  120  B IPC

R.I. for 3 years.

2. 343 r/w  120  B IPC

R.I. for 3 years.

3. 342 IPC R.I. for 1 year.

    6. The appeals filed by the accused were dismissed by the High

Court and their convictions and sentences were confirmed.

After re-appreciating the evidence on record, the High Court

held that there is sufficient material to hold that the accused

were  directly  responsible  for  the  death  of  the  deceased.

According to the High Court, the fact that Kamal Singh (A-2)

gave a blow with the butt  of  his  rifle on the head of  the

deceased was proved.  The High Court held that A1, A2 and

A3 made a valiant effort to cover up the incident by creating

evidence to  show that  the  deceased died  in  an  accident.

The High Court further held that A1, A2 and A3 removed the

body  from  the  place  where  the  incident  occurred  and

replaced it at the place where the body was found between

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4.00 to 5.00 pm on 11.09.1996.  They also smeared the face

and upper part of the body of the deceased with blood in

order to make it  appear like an accident.  The High Court

also found A1, A2 and A3 guilty of not making any attempt to

provide any help to the deceased who was injured,  which

could have saved his life.   A4 to A6 were found complicit of

tampering with the official record to help A1 to A3 escape

punishment.

7. It is no more  res-integra  that re-appreciation of evidence is

not required in a case where conviction has been confirmed

by the High Court. (See:Ramaniklal Gokaldas v. State of

Gujarat,  (1976)  1  SCC  6,  para.3).  However,  we  have

examined  the  evidence  on  record  and  considered  the

submissions made by both sides. The main contentions of

the Mr.S.Nagamuthu,  learned Senior Counsel  appearing on

behalf of some of the Appellants are:

I. That PW 6 is not a reliable witness in view of the fact

that he did not disclose the occurrence to anybody for

nearly  one  and  half  years.   He  also  did  not  state

anything against the accused even in the Magisterial

Enquiry.   PW 6  disclosed  the  facts,  which  form the

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basis  of  the  entire  case  of  the  prosecution,  to  the

investigating officer PW -71 only on 23.01.1998.

II. There is contradiction between the ocular testimony of

PW- 6 and the medical evidence.  It is contended that

Asphyxia is not possible without any mark of violence

and there is no external injury found on the body of

the deceased contrary to the evidence of PW-6 who

stated that the deceased was hit on the back side of

his head with the butt of a rifle.   

8. There is a detailed discussion in the judgments of the Courts

below about the illegal detention of PW-6 by the police and

the continuous threat held out by the accused to PW-6.   The

Courts  below  relied  upon  the  evidence  of  PW-6,  being

conscious  of  the  fact  that  PW-6  could  not  have  stated

anything  against  the  accused  until  the  investigation  was

handed  over  to  the  CBI.   We  are  unable  to  accept  the

submissions of learned Senior Counsel for the accused that

the evidence of PW-6 is unreliable.  It is no doubt true that

PW-6 revealed the complicity of A1 to A-3 before PW-71 only

on 23.01.1998 though the incident was on 10.09.1996.  It is

clear from the evidence on record that PW-6 was spared by

A1 to A-3 only on an assurance that  he would not  reveal

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about the incident to anybody.  It was only after the CBI took

up the investigation that he mustered strength to approach

the  Investigating  Officer  PW-71  and  revealed  the  facts

pertaining  to  the  incident  dated  10.09.1996.   In  this

background, the evidence of PW-6 cannot be eschewed from

consideration  only  on the  ground that  there  was delay in

reporting his version to the Investigating Officer.  We reject

the submission of learned Senior Counsel for the Appellants

that  the  evidence  of  PW-6  does  not  merit  favorable

consideration.  

9. As  per  the  postmortem  report,  the  cause  of  death  is

Asphyxia.   PW-25,  Dr.  P.S.  Parihar,  opined  that  the  death

might have been caused because of obstruction of air into

mouth and nose by a cloth or pillow being put on his nostrils

or mouth.  PW-6 deposed in his testimony that the deceased

was hit by a rifle butt on the back of his head by A-2 due to

which he fell down and become unconscious.   The medical

evidence  shows  that  there  was  no  external  injury  on  the

head of the deceased.  Though it appears at the first blush

that there is a contradiction between the oral testimony of

PW-6 and the medical evidence, on a deeper scrutiny it is

clear that there is none.  PW-6 deposed about the incident to

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the  extent  he  was  aware  i.e.  the  blow given by  A-2,  the

deceased  falling  down  and  becoming  unconscious.

Thereafter, PW-6 was taken away by the accused and was

unaware about the events that took place later.  He did not

state anything about the deceased losing his life.  According

to  medical  opinion  the  death  was  due  to  Asphyxia.  Dr.

P.S.Parihar (PW-25) deposed that the death might have been

caused by obstruction of air into the mouth and nose due to

a  cloth/pillow  being  put  on  the  nostrils  and/or  mouth.

Therefore, there is no variation between the oral and medical

evidence.

10. The following circumstances would  unerringly  point  to  the

guilt of Accused:  

A. It  is clear from the evidence on record that A-1 to A-3

tried to cover up their crime by filing a closure report to

the effect that the death of the deceased was due to an

accident.      B. PW-6 stated in his evidence that  A-1 to A-3 caused an

injury  to  the  deceased  and  thereafter  dragged  and

dumped  him into  the  bushes  besides  the  road.   They

initially took PW-6 to the outpost at Anangpur Chowk and

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later to Surajkund police station where he was illegally

detained till 15.09.1996.    

C. PW-2,  Kanwal  Nain  Arora,  the  father  of  the  deceased

along with PW-10, Ashok Kumar and PW-12, Harish Arora

were  frantically  searching  for  the  deceased  from  the

early hours on 11.09.1996 on Surajkund - Faridabad road.

They found the broken pieces of glass purchased by the

deceased on the Surajkund-Faridabad road.  There was

no trace of the body till it was found on the same road at

5:30 pm on 11.09.1996.    

D. The police had blocked the road between 02:00 pm to

04:00 pm for vehicle or traffic, presumably to enable the

accused  to  place  the  body  at  the  spot  where  it  was

found.      E. The inquest was not done at the spot but at the police

station  by  A-4.   The  blood  stained  earth  allegedly

removed from the spot where the body was lying did not

match with the blood group of the deceased.  There was

blood on the face of the deceased and his clothes, which

also did not match his blood group.     F. It  has  also  come out  in  evidence that  it  rained in  the

afternoon on 11.09.1996 but the body was found to be

dry.   

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G. Manipulation of the investigation by A-4 to A-6 in order to

shield A-1 to A-3 from punishment for their crime.   

H. The deceased being unconscious and lying on the road

one  km.  from  Anangpur  Chowk  at  11:30  pm  on

10.09.1996 was to the exclusive knowledge of A-1 to A-3.

The  absence  of  any  explanation  forthcoming  from the

accused  as  to  the  circumstances  in  which  the  death

occurred, raises a presumption against them.

I. The disappearance of the body during the day time until

it  was  found  at  a  place  different  from the  site  of  the

incident at 05:30 p.m. would clearly show that A-1 to A-3

were responsible for the removal of the body in the night

and  placing  the  body  at  the  site  where  it  was  found

around 5:30 pm on 11.09.1996.   

11. All the above circumstances would show that A-1 to A-3 are

responsible  for  the  death,  being  the  only  persons  having

knowledge about the deceased lying at the spot where he

was injured at 11:30 pm on 10.09.1996.  Complicity of A-4 to

A6 has also been sufficiently proved. On the basis of the oral

testimony of PW-6 and the strong circumstances which point

to their guilt, we uphold the judgments of the Courts below.      

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12.   For the aforementioned reasons, the appeals are dismissed.

The accused are directed to surrender forthwith to serve out

the remainder of their sentences.     

                 ..……................................J                                                                [L. NAGESWARA RAO]

                 ..……................................J                                                  [NAVIN SINHA]

New Delhi, August 10, 2017

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