JITENDER KUMAR Vs STATE OF HARYANA
Bench: A.K. PATNAIK,SWATANTER KUMAR
Case number: Crl.A. No.-001763-001763 / 2008
Diary number: 28727 / 2008
Advocates: SANJAY JAIN Vs
KAMAL MOHAN GUPTA
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1763 OF 2008
Jitender Kumar … Appellant
Versus
State of Haryana … Respondent
WITH
CRIMINAL APPEAL NO.1092 OF 2009
Sunil Kumar & Anr. … Appellants
Versus
State of Haryana … Respondent
J U D G M E N T
Swatanter Kumar, J .
1. The Trial Court, vide its judgment of conviction dated
5th November, 2003 and order of sentence dated 10th
November, 2003, held all the five accused, namely, Sunil
Kumar, Satish, Pawan Kumar, Jitender Kumar and Ratti Ram
guilty of the offence under Section 120-B of the Indian
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Penal Code, 1860 (IPC). The Trial Court further held that except
Jitender, remaining four accused were also guilty of the offence
under Section 302 read with Section 34 IPC. The Trial Court
acquitted all the four accused for the offence under Section 323
read with Sections 34 and 342 IPC and convicted them as
follows:
“Taking into consideration all the aspects of the case, I take a lenient view and sentence Sunil, Satish, Pawan and Ratti Ram accused to imprisonment for life under Section 302 read with Section 34 IPC and Section 120B IPC. Each of the accused is sentenced to a fine of Rs.1000/- under the said sections. In default of payment of fine, the defaulting accused shall suffer further rigorous imprisonment for six months.
Jitender accused has been found guilty under Section 120-B IPC for conspiracy of murder with the other four-five persons and when we read the provisions of Section 120B and 109 IPC, Jitender is also punishable for the offence of murder as the act of murder has been committed in consequence of the conspiracy. I, therefore, sentence Jitender accused to imprisonment for life under Section 120-B IPC. He is also sentenced to a fine of Rs.1000/- under the said section. In default of payment of fine Jitender accused shall suffer further rigorous imprisonment for six months.
As regards, the role of Surender @ Sunder son of Ratti Ram, the husband of Indra deceased, a copy of this judgment be sent to the Superintendent of Police, Hisar for
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taking appropriate action against him in view of the observations made by me in this judgment.”
2. This judgment of the Trial Court was challenged by the
accused persons in appeal before the High Court being Criminal
Appeal No.930-DB of 2003. Surender @ Sunder, husband of the
deceased, had also filed a criminal miscellaneous petition being
Criminal Miscellaneous No.3337-M of 2004 against the judgment
of the Trial Court wherein it had directed action to be taken
against him by the Superintendent of Police in view of the
observations made by the Trial Court therein. Both the criminal
appeal as well as the criminal miscellaneous petition were heard
together and disposed of by a common judgment of the High
Court dated 30th May, 2008 wherein the High Court upheld the
judgment of the Trial Court in its entirety and dismissed the
criminal appeal and the criminal miscellaneous petition.
3. Against this judgment of the High Court, two separate
appeals have been filed before this Court, one by Jitender Kumar
being Criminal Appeal No.1763 of 2008 and the other by Sunil
Kumar and Satish Kumar being Criminal Appeal No.1092 of
2009. Surender has not challenged the judgment of the High
Court.
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4. At this stage itself, we may notice that accused Pawan
Kumar had also filed a special leave petition against the
judgment of the High Court being SLP (Crl.) No.7881 of 2011
which came to be dismissed by a Bench of this Court on 14th
October, 2011 on the ground of delay as well as on merit. Ratti
Ram died during the pendency of the proceedings. Thus, by this
common judgment, we would dispose of both these criminal
appeals preferred by the three accused persons.
5. The First Information Report (FIR) pertaining to the case in
hand was registered by ASI Hans Raj of Police Station Narnaund
on 10th February, 1999 on the statement of Ishwar Singh (PW11),
brother of the deceased. Chadan Singh, resident of Bhartana
had eight children, two sons and six daughters. The youngest of
the daughters was Indra who was married to Surender @ Sunder,
son of Ratti Ram of village Narnaund. Indra, the deceased, was
having a son aged about two years from this marriage. Mother-
in-law of Indra had died even before the marriage of Indra with
Surender. Surender had two brothers, namely, Pawan Kumar
and Anup. Allegedly, Ratti Ram, father-in-law of Indra, was
interested in the children of his sister-in-law (sali) more than his
own children. Ratti Ram had obtained a loan on his own land
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and purchased a tractor for the children of his sister-in-law. Due
to this, there was annoyance in the family and particularly, Indra
and Surender had raised protest. Having come to know of this
protest, Satish and Sunil son of Shamsher Singh resident of
Jamni and Pawan son of Ratti Ram had threatened Indra that
they would kill her. Satish and Sunil, along with Pawan, had
also taken the cattle and other household articles from the house
of Ratti Ram with his permission. Ratti Ram had even started
living in the house of Sunil and Satish. After being pressurized
by his family members, Ratti Ram, along with his son, had come
back to his house in Narnaund but the cattle and other
household articles that he had taken while going to the house of
Sunil were not brought back by Ratti Ram to his own house.
Indra had protested against Ratti Ram not bringing the cattle and
household articles to their house. This further annoyed Sunil,
Satish, etc.
6. On 9th February, 1999, Ishwar Singh, PW-11 had gone to
the house of his sister Indra. Satish, Sunil and Pawan had also
come to Narnaund and all of them stayed in the house of Ratti
Ram on that day. At night, after taking meals, all these guests
slept on the ground floor, Surender went to irrigate the fields
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while Indra along with her son, went to sleep in the chobara. It
is stated that at about 1.00 – 1.30 a.m. in the night, PW11 heard
loud voices coming from the chobara as well as the indication of
somebody falling down and rising. When he went up to the
chobara, he saw that Ratti Ram and his son Pawan Kumar had
caught hold of the hands of Indra while Satish and Sunil were
pulling the rope that had been put around her neck. Indra was
struggling for life and was trying to free herself from their grip.
When PW11 tried to intervene and get Indra freed, they gave a
lalkara that Ishwar Singh should first be taught a lesson for
intervening in their affairs. For the fear of death and love for life,
he left the place of occurrence and went to his house and told the
story to his family members. Thereafter, Balwan, Rajender,
Jagdish and Sultan, all residents of Bhartana, came to the house
of Indra and found her lying dead on the ground floor. There
were marks of injuries on her neck and body. She had been
strangulated and murdered.
7. Having received the information and registered the FIR
(Ex.P2), ASI Hans Raj proceeded to the place of occurrence along
with PW11. The Investigating Officer conducted the spot
inspection, got the place of occurrence photographed and
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collected pieces of bangles, which were lying in the chobara of
the premises. After conclusion of the inquest proceedings, the
body of the deceased was sent for post mortem on 11th February,
1999. The site plan of the place of occurrence was also prepared.
Accused Satish was arrested on 17th February, 1999 from the bus
stand at Rajthal. During the course of investigation, he made
disclosure statement to the effect that the rope used in the crime
had been kept concealed in the fields of wheat crop of accused
Ratti Ram. Upon his disclosure statement, the said rope was
recovered, made into parcel and sealed. On 8th March, 1999,
the investigation was taken over by SI Jagir Singh. Accused
Sunil and Pawan Kumar were arrested by him. During
investigation, they got recovered the salwar, jhumper and chunni
of Indra from the kotha of Turi. Similarly, Jitender was taken
into custody on 12th March, 1999 and upon his disclosure
statement, the motorcycle was recovered from the mechanic shop
vide Exhibit P44.
8. After completion of investigation, a charge sheet was filed
under Section 173 of the Code of Criminal Procedure, 1973
(CrPC) charging all the five accused persons for the offences
under Sections 302, 342, 506, 120-B and 34 IPC in the Court of
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the Magistrate who committed the case to the Court of Sessions.
The prosecution examined as many as 13 witnesses in support of
its case and also produced documentary evidence including the
report from the Forensic Science Laboratory (FSL). After putting
up the evidence against the accused, their statements were
recorded under Section 313 CrPC and then, as already noticed,
they were convicted by the Trial Court and their conviction has
been upheld by the High Court also.
9. In the backdrop of the above prosecution case and the fact
that the learned counsel appearing for the appellant in the
respective appeals have addressed distinct arguments and
referred to different evidence, we consider it appropriate to deal
with both these appeals separately.
Criminal Appeal No.1763 of 2008
10. While raising a challenge to the judgment of the High Court
as well as that of the Trial Court, it is, inter alia, contended on
behalf of accused Jitender Kumar that :
i) He has not been named in the FIR (Exhibit P2), which fact
itself shows that he has been falsely implicated in the
crime.
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ii) The occurrence is alleged to have taken place between 1.00
to 1.30 a.m. on 10th February, 1999 but the FIR has been
registered after undue and unexplained delay, i.e., at 4.30
p.m. on 10th February, 1999. The delay in lodging the FIR
is fatal to the case of the prosecution in the facts and
circumstances of the present case.
iii) The learned Trial Court as well as the High Court have
misread and failed to appreciate the evidence in
accordance with law.
iv) The alleged recovery of the motorcycle Exhibit P44 is in
furtherance to the statement of Jitender (Exhibit P43).
This statement, having been made to the police, is
inadmissible in evidence and could not be relied upon by
the Court for convicting the accused.
v) Accused Jitender had no motive to be involved in the crime
and no role has been attributed to him so as to warrant his
conviction for an offence under Section 302 IPC.
vi) Jitender has not been convicted independently for an
offence under Section 302/34 IPC as recorded by the
learned Trial Court. Consequently, he could not have been
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held guilty of the same offence with the aid of Section 120B
IPC.
11. As already noticed, the FIR (Ext. P2) had been registered by
ASI Hans Raj, PW-13 on the statement of Ishwar Singh, PW-11.
It is correct that the name of accused Jitender, son of Sajjan
Singh, was not mentioned by PW-11 in the FIR. However, the
law is well-settled that merely because an accused has not been
named in the FIR would not necessarily result in his acquittal.
An accused who has not been named in the FIR, but to whom a
definite role has been is attributed in the commission of the
crime and when such role is established by cogent and reliable
evidence and the prosecution is also able to prove its case
beyond reasonable doubt, such an accused can be punished in
accordance with law, if found guilty. Every omission in the FIR
may not be so material so as to unexceptionally be fatal to the
case of the prosecution. Various factors are required to be
examined by the Court, including the physical and mental
condition of the informant, the normal behavior of a man of
reasonable prudence and possibility of an attempt on the part of
the informant to falsely implicate an accused. The Court has to
examine these aspects with caution. Further, the Court is
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required to examine such challenges in light of the settled
principles while keeping in mind as to whether the name of the
accused was brought to light as an afterthought or on the very
first possible opportunity. The Court shall also examine the role
that has been attributed to an accused by the prosecution. The
informant might not have named a particular accused in the FIR,
but such name might have been revealed at the earliest
opportunity by some other witnesses and if the role of such an
accused is established, then the balance may not tilt in favour of
the accused owing to such omission in the FIR. The Court has
also to consider the fact that the main purpose of the FIR is to
satisfy the police officer as to the commission of a cognizable
offence for him to conduct further investigation in accordance
with law. The primary object is to set the criminal law into
motion and it may not be possible to give every minute detail
with unmistakable precision in the FIR. The FIR itself is not the
proof of a case, but is a piece of evidence which could be used for
corroborating the case of the prosecution. The FIR need not be
an encyclopedia of all the facts and circumstances on which the
prosecution relies. It only has to state the basic case. The
attending circumstances of each case would further have
considerable bearing on application of such principles to a given
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situation. Reference in this regard can be made to State of U.P.
Vs. Krishna Master and Ors. [(2010) 12 SCC 324] and Ranjit
Singh and Ors. Vs. State of Madhya Pradesh [(2011) 4 SCC 336].
12. In the present case, despite the fact that the accused
Jitender has not been named in the FIR, a definite role has been
attributed to this accused by PW-10. Further, it was on his
disclosure statement that the motor cycle, Ext. P44, has been
recovered. PW-10, Surender has specifically stated in his
statement before the Court that Jitender was his brother-in-law.
According to this witness, after midnight at about 12.30 a.m.,
accused Satish and Jitender, while driving a motorcycle, had
come to him in the fields. They gave him beating and insisted
that he should ask his wife to open the door of the chobara. He
was taken to his residence in the village and out of fear, he asked
his wife to open the door which she did as earlier she had bolted
the shutters from inside. After the door was opened, Ratti Ram,
Pawan, Satish and Sunil entered the chobara. Jitender
thereafter, is stated to have taken out a synthetic rope from the
dicky of the motorcycle and handed over the same to Satish.
After handing over the rope, Jitender declared that he would take
Sunder back to the fields and exhorted that Indra be killed to
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solve all problems in the future. According to this witness, he
was forced by Jitender to drive the motorcycle back to the fields.
Further, Jitender is stated to have been a party to illegally
confining PW-10 after the commission of the crime. Moreover, in
the cross-examination of this witness, not even a suggestion was
put to him that Jitender was not present and/or had not
accompanied him on the motor cycle to the fields. On the
contrary, the matters in relation to the property, for which protest
was raised by Indra have clearly been stated therein.
13. We must also notice that the fact that PW11 did not name
the accused Jitender in the FIR adds to the credibility of this
witness rather than creating a doubt in the case of the
prosecution. PW-11 in his statement clearly stated that all
the accused except Jitender were present in the Chobara
and had murdered his sister Indra. This reflects the
truthfulness of PW-11. The occurrence of the events as per the
case projected by the prosecution is that PW-11 had not met
Jitender in the Chobara because Jitender had gone to the fields
to bring PW-10 forcibly and under threat to his house and after
getting the door opened by Indra and handing over the rope to
the other accused, Jitender had taken PW-10 back to the fields.
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When PW-11 came to the Chobara and noticed the other accused
persons killing Indra, Jitender had already left along with PW-10
and as such, there was no occasion for PW-11 to see Jitender at
the place of occurrence in the Chobara. Therefore, he rightly did
not name Jitender in the FIR as one of the persons present in the
chobara who committed the murder of his sister. There was no
occasion or reason for PW-10 to implicate Jitender falsesly as
Jitender was also known and related to him. This accused was
duly identified in the Court by this witnesses. PW-10 and PW-11
both cannot be stated to be planted witnesses. They are natural
and reliable witnesses. Of course, the learned Trial Court has
expressed certain observations about the immature behavior of
PW-10 and even directed action against him with regard to
inflicting injury and illegal confinement, but the Trial Court did
not cast any doubt on the material aspects of the occurrence in
the crime committed by the accused.
14. The High Court also believed PW-10, although it observed
that he behaved like a husband under fear and exhibited his
paramount interest in the property. These observations do not
in any way affect the case of the prosecution because the
incident, as narrated by the prosecution witnesses and
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particularly by PW-10 and PW-11, is also corroborated by other
expert evidence on record.
15. In the case of Tika Ram v. State of Madhya Pradesh [(2007)
15 SCC 760], the Court was concerned with an argument that the
name of the accused was not mentioned by the witnesses in the
FIR and it would not, by itself, be sufficient to reject the case of
the prosecution against the accused. Rejecting such a
contention, the Court noticed that brother of the deceased having
come to know of the incident came to the place of occurrence and
having seen only a part of the incident informed the police.
Therefore, in that process, if he failed to mention the name of the
appellant, it was not a circumstance which would be sufficient to
discard the evidence of such witness and non-mentioning of the
name of the accused would not be a material lapse.
16. The learned counsel appearing for these accused/appellant
while relying upon the judgment of this Court in the case of Aloke
Nath Dutta & Ors. V. State of West Bengal [(2007) 12 SCC 230],
argued that the confessions in the present case have not been
recorded in the manner contemplated by law and the confession
cannot be taken on record where it incorporates both admissible
and inadmissible parts thereof together.
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17. In the disclosure statement of accused Jitender, Ext. P43, it
has been recorded, “after conspiring for murdering Indra, wife of
Sunder, we had used Hero Honda Motor Cycle bearing
registration No. CHI/2088 of Satish in that murder, for going
and coming. I have kept that motor cycle now in the shop of Sat
Pal Mistry, r/o Jind. After pointing out, I can get the same
recovered”. On this disclosure, memo of recovery was prepared
and signed.
18. This contention of the learned counsel for the appellant
need not detain us any further as the law in this regard has been
settled by various pronouncements of this Court. What has been
recorded in Ext.P43 cannot be taken to be confession of the
accused in relation to commission of the crime, but the other part
by which the motor cycle was recovered, would be the portion
admissible in evidence. The admissible part can very safely be
segregated from the inadmissible part in this statement.
19. It may be noted that in the very judgment of Aloke Nath
Dutta (supra) relied upon by the counsel for the appellant, this
Court has clearly stated as follows :
“… We intend to point out that only that part of confession is admissible, which would be
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leading to the recovery of the dead body and/or recovery of the articles of Biswanath; the purported confession proceeded to state even the mode and manner in which Biswanath was allegedly killed. It should not have been done. It may influence the mind of the court.”
20. In the case of Anter Singh v. State of Rajasthan [(2004) 10
SCC 657], this Court clearly stated the principle, “it is fallacious
to treat the ‘fact discovered’ within the section as equivalent to
the object produced; the fact discovered embraces the place from
which the object is produced and the knowledge of the accused
as to this, and the information given must relate distinctly to this
fact. Information as to past user, or the past history, of the
object produced is not related to its discovery in the setting in
which it is discovered.”
21. Neither the trial Court nor the High Court has relied upon
Ext. P43 for the purpose of holding the accused guilty of the
offence. Both these authorities have only noticed the fact of
recovery of the motor cycle in furtherance to the disclosure
statement made by this accused. In our considered opinion,
there is no such infirmity pointed out by the counsel appearing
for the appellant which would vitiate the very recovery of the
motor cycle in terms of Section 27 of the Indian Evidence Act,
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1872 (hereafter the “Evidence Act”). The fact that motorcycle
was used by the accused Jitender for the purpose of bringing PW-
10 from the fields to his residence and after getting the door
opened by Indra, was again used for dropping PW-10 to the fields
is fully corroborated. The recovery of motorcycle, Exhibit P44, is
a fact which provides a link between recovery of motorcycle and
its use by the accused in commission of the crime. This fact is
also proved by the statement of PW10. This statement of the
accused has not been treated as a confession of the accused by
the courts and rightly so because, it could not have been treated
as a confession of the accused, firstly, because it was made to the
police and secondly, such a statement would not be admissible in
terms of Section 27 of the Evidence Act.
22. We shall shortly proceed to discuss the argument of the
learned counsel for the appellant that there was unexplained and
inordinate delay in lodging the FIR and the courts have failed to
appreciate the evidence in this prospective, when we deal with
the appeal of Satish, Sunil and the other two co-accused.
23. Coming to the last argument on behalf of accused Jitender
that he had been acquitted by the trial court for an offence under
Section 302 read with Section 120B IPC, this argument is again
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devoid of any merit. The accused Jitender was charged with an
offence punishable under Section 120B IPC for he and other co-
accused had conspired to do an illegal act and commit the
murder of Indra. It is thereby correct that no separate charge
under Section 302 read with Section 34 IPC had been framed
against the accused Jitender. However, he was charged with an
offence punishable under Section 323 read with Section 34 IPC
for which he was acquitted. It is also correct that the learned
trial Court has specifically noticed in its judgment that accused
Jitender Kumar had not been charged separately for an offence
under Section 302 read with Section 34 IPC and if he was also
present, then the provisions of Section 149 IPC would be
applicable and in the event, the charge ought to be framed under
that provision. We are unable to find any error in this approach
of the trial Court. But, equally true is that the trial Court, for
valid reasoning and upon proper appreciation of evidence,
convicted this accused for an offence under Section 120B of the
IPC and, thus, for an offence under Section 302 IPC as well.
24. A bare reading of Section 120B provides that whoever is a
party to a criminal conspiracy to commit an offence punishable
with death, imprisonment for life or rigorous imprisonment for a
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term of two years or upwards, shall, where no express provision
is made in the IPC for the punishment of such a conspiracy, be
punished in the same manner as if he had abetted such offence.
25. In other words, once the Court finds an accused guilty of
Section 120B, where the accused had conspired to commit an
offence and actually committed the offence with other accused
with whom he conspired, they all shall individually be punishable
for the offence for which such conspiracy was hatched. Thus, we
do not find any error in the judgment of the trial court in
convicting the accused for an offence under Section 120B read
with Section 302 IPC.
Criminal Appeal No. 1092
26. In this appeal, the challenge to the findings recorded in the
impugned judgment is on the ground that firstly there has been
inordinate and unexplained delay in lodging the FIR, even though
the police station was quite near to the place of occurrence and
secondly, that the time of occurrence cannot be validly related to
the expert medical evidence and on this count itself, the accused
would be entitled to the benefit of doubt. This question, in fact,
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arises in both these appeals, and therefore, can conveniently be
dealt with at this stage.
27. The FIR Ext. P-2 was recorded at 4.40 p.m. on 10th
February, 1999, in which the time of occurrence was recorded as
1.00 to 1.30 a.m. of the same date. This FIR had been registered
on the basis of the statement of Ishwar Singh, PW-11 who, as
already noticed, was the eye-witness to the occurrence. He
clearly stated in his statement that after having the dinner, Indra
along with her child had gone to chobara to sleep and all of them
were sleeping on the ground floor. At about 1.00 or 1.30 a.m.,
he heard voices from the chobara. He went upstairs and saw that
the accused Ratti Ram and Pawan Kumar had caught hold of the
deceased Indra and the accused Satish and Sunil were
strangulating her with the help of a rope. Despite her struggle,
she was not able to free herself from the grip of the accused
persons and when he tried to intervene, he was also threatened
with dire consequences. As a result, he went away to his village
Bhartana to inform his family members about the incident. At
that time, PW-11 was not aware of the fact that Indra had already
died. It is only when he came back to the house of Ratti Ram
along with Mange Ram, Rajender, Jagdish and Sultan Singh, all
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resident of village Bhartana, that they all saw the deceased Indra
lying dead. That is how they came to know that Indra had been
strangulated and murdered by the accused. It was thereafter
that Ishwar Singh, PW11) went to the Police Station to report the
incident and met ASI Hans Raj near Aasan Chowk, Narnaund
who recorded his statement and after making endorsement, sent
it to the Police Station for registration of the case.
28. Undoubtedly, it has come in the statement of PW-1 that the
house depicted in Ext. P-1 i.e. the place of occurrence, was
situated in the township of Narnaund and was at a distance of
150 metres, from the police station. This piece of evidence does
not advance the case of the accused favourably. According to
the prosecution, Indra was killed by the family of her in-laws.
Most unfortunately, her husband, PW10, partly because of fear
and partly out of greed for property, became a mere spectator to
the crime. PW11, lodged the FIR and PW10 corroborated the
version given in the FIR about the murder of his wife. He claimed
that he was illegally confined by the accused Jitender and Sunil
and therefore, after the murder, he was unable to approach the
police station. In these circumstances, of course, the conduct of
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PW-10 and PW-11 is somewhat strange, but their statements
cannot be falsified on this ground.
29. PW-11 could have gone to the police station straight away,
but he instead preferred to go to his village first and came back
with the others. His behavior at the time of occurrence might
have been abnormal as he had been threatened with dire
consequences by the accused persons. Thus, he went to his
village and brought his relations and friends to see if the matter
could be resolved. But by the time he reached the house of Ratti
Ram, Indra had already been murdered. In these
circumstances, some delay in registering the FIR was inevitable
and it is not such inordinate delay which could be construed as a
ground for acquittal of the accused, as the prosecution has been
able to prove its case beyond reasonable doubt.
30. It is a settled principle of criminal jurisprudence that mere
delay in lodging the FIR may not prove fatal in all cases, but in
the given circumstances of a case, delay in lodging the FIR can be
one of the factors which corrode the credibility of the prosecution
version. Delay in lodging the FIR cannot be a ground by itself for
throwing away the entire prosecution case. The Court has to
seek an explanation for delay and check the truthfulness of the
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version put forward. If the Court is satisfied, then the case of the
prosecution cannot fail on this ground alone. [Ref. Yakub
Ismailbhai Patel v. State of Gujarat [(2004) 12 SCC 229], State of
Rajasthan v. Shubh Shanti Services Ltd. V. Manjula S. Agarwalla
& Ors. [(2000) 5 SCC 30].
31. Now, we shall deal with the other aspect of the argument
advanced on behalf of the appellants, i.e. in relation to
uncertainty in the time of occurrence as well as death of the
deceased, with reference to expert evidence. The contention is
that as per the statement of PW-10 and PW-11, they all had their
dinner together whereafter, PW-10 had gone to the fields for
irrigating the fields and others had slept at the ground floor,
except Indra and her child, who had gone to chobara to sleep.
The occurrence is stated to have taken place between 1.00 to
1.30 a.m. However, according to the medical evidence, there
was semi-digested food found in the stomach of the deceased.
Therefore, it was not possible to state that she was murdered, as
alleged, between 1.00 to 1.30 a.m. as by that time more than four
hours would have elapsed and undigested food could not have
been found in the stomach of the deceased.
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32. The body of the deceased was subjected to post mortem
conducted by Dr. L.L. Bundela, PW-3, who, after describing the
seven injuries on the body of the deceased, had stated, “the
stomach contained semi-digested food small intestines contained
chyme and the large intestines contained faecal matter. The
uterous was non-gravid.”
33. In his further examination-in-chief, PW-3 had clearly stated,
“it is possible that the death of Smt. Indra might have been
caused at 1.30 a.m. on 10.2.99”. In cross-examination, he
stated, “It takes 2 to 3 hours for the digested or undigested food
to leave the stomach”.
34. According to the accused, this causes a serious doubt in the
very basis of the prosecution story. This argument appears to be
of some significance at the first brush, but when examined in
depth in light of the entire evidence, it clearly lacks merit.
35. Neither PW-10 nor PW-11 has stated as to the exact time at
which Indra had her dinner. It is a matter of common knowledge
that in the villages, ladies normally provide food to the guests and
the other members of the family first and are last to have the food
themselves. None of the witnesses have given the time when all
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the persons had their dinner. But, according to both these
witnesses, after having the dinner they had gone to sleep except
PW-10 who had gone to the fields for irrigation purposes. This
obviously means that they would have had dinner after 8 or 9
p.m., whereafter they went to sleep. Indra presumably had
dinner thereafter and went to sleep later. She was murdered
between 1.00 to 1.30 a.m. which means between 4 to 5 hours of
having her dinner. The evidence of PW-3 categorically states
that it was possible that Indra was murdered between 1.00 to
1.30 a.m. This was duly corroborated by PW-11. The
investigation conducted by PW6, PW12 and PW13 also indicates
that she was murdered during that period. It is significant to
notice that after PW-3 stated in his further examination that
Indra might have been murdered between 1.00 to 1.30 a.m., no
suggestion was put to this witness that the said witness was
stating incorrectly or that it was not possible to reconcile the
statement of PW-3 i.e. the expert evidence, with the version of the
prosecution. Once, this statement of PW-3 remained
unchallenged and there exist other prosecution evidence to
support the said version, the Court would not be inclined to treat
it as a significant doubt in the case of the prosecution.
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36. According to PW-11, he had gone to the house of his sister
Indra, at about 7 p.m. and had found the accused present there.
This time given by the witness also indicates that all the accused
as well as the informant had their dinner after 8 p.m. or so. The
time of death given by PW-3, thus, cannot be falsified only on the
ground of an argument that there was some undigested food
found in the stomach of the deceased.
37. Further, it is contended on behalf of the accused that the
time of death of the deceased cannot be stated with certainty with
reference to the evidence on record and this being a very
important factor, would lead to the acquittal of the accused.
Reliance in this regard has been placed upon the judgment of
this Court in the case of Shambhoo Missir & Anr. v. State of Bihar
[(1990) 4 SCC 17]. In that case, this Court found that the
allegations of the prosecution were that the death had occurred
at 3.00 p.m. No such undigested food could have been found at
that hour when the food was taken by the deceased at 8.00 a.m.
and if this be so, then the whole case of the prosecution could
crumble. It may be noticed that in that case, it had been
established by definite and cogent evidence that the deceased
had taken the meals before 8.00 a.m. and the death had occurred
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at 3.00 p.m. and the undigested food particles were found in the
stomach of the deceased. This observation of the Court cannot
be treated as a statement of law but is a finding recorded with
reference to the facts of that case.
38. The entire basis for this submission is the statement of
PW3, Dr. L.L. Bundela, who stated that the stomach of the
deceased contained some semi-digested food. It is worthwhile to
note that the statement of this very witness that the death of
Indra could have taken place between 1.00 to 1.30 a.m. remained
unchallenged. Furthermore, it cannot be stated as a rule of
universal application that after a lapse of two to three hours
stomach of every individual, without exception, would become
empty. It would depend upon a number of other factors like the
caloric content and character of the solid food. Further, addition
of fats, triglycerides and carbohydrates such as glucose, fructose
and xylose to a solid meal can delay its emptying from the
stomach, presumably because of their effect on the initial lag
phase of digestion of solids. Furthermore, the presence of liquids
in the stomach prolongs this initial lag phase of solid emptying.
In fact, ingestion of a liquid bolus 90 minutes after a solid meal
can induce a second lag phase of solid emptying from the
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stomach. Foods high in fat content are handled duly by the
stomach and their emptying pattern should be considered
separately from those of other liquids and solids. Many foods are
solid or semi-solid prior to their ingestion. However, after they
are consumed and warmed to the body temperature in the
stomach, they are converted into a liquid. Despite this, the liquid
foods are emptied from the stomach much more slowly than are
the aqueous liquids. This aspect has been dealt with by
prominent authors on the subject with definite emphasis on
emptying of stomach. The gastric emptying of indigestible solids
have been appropriately dealt with in the Textbook of
Gastroenterology, Volume One, by Tadataka Yamada, David H.
Alpers, Chung Owyang, Don W. Powell and Fred E. Silverstein, as
follows:
“Gastric Emptying of Indigestible Solids
The final class of consumed components of a meal to be discussed are the indigestible solids, that nonnutritive fibrous debris remaining from a meal that is not emptied with the dispersible, calorie-containing digestible solids. In general, indigestible solids exist the stomach with initiation of the gastric phase III activity of the MMC after completion of the fed motor pattern. The main characteristic that distinguishes the phase III motor pattern from fed motor activity is the presence of an open pylorus during
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fasting, which permits intestinal delivery of large particles.
The major factor in determining when an indigestible solid is emptied from the stomach is its size. Indigestible spheres smaller than 1mm in diameter freely pass into the intestine during the fed period, often at rates faster than solid nutritive food. Larger spheres pass more slowly, usually after an initial lag period, with spheres up to 2.4 mm in diameter passing with the calorie-containing components of a solid meal. Spheres as large as 7 mm do not empty with solid food at all and are retained until gastric phase III activity resumes in the interdigestive period. It has been reported that undigested materials as large as 2 cm in diameter can pass into the intestine during the fasting period under normal conditions.
Other physical factors play a role in determining the gastric emptying of indigestible solid material…..”
39. Besides the above, with regard to the external regulation of
gastric emptying, it has been stated that in addition to being
controlled by various characteristics of the ingested bolus within
the stomach, there is extensive modulation of gastric emptying by
external influences. Gastric motility and emptying is also subject
to extensive modulation by the central nervous system. The
nutritional properties of an ingested liquid modify the speed at
which it exits the stomach. Because of this, carbohydrate,
protein or fat containing liquids can be digested and absorbed
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completely prior to reaching the distal small intestine. Certain
physical characteristics of the ingested meal may alter the
function of the stomach to selectively retain or expel the large
particles. If the viscosity of the meal is increased sufficiently, the
ability of the stomach to discriminate between large and small
particles is abolished and much larger particles may be delivered
into the duodenum.
40. The above findings are based on medical studies and are
well-established in the field of gastroenterology.
41. It may be useful at this stage to refer to Modi’s ‘Medical
Jurisprudence and Toxicology’, Twenty Third Edition, which has
specifically concluded that there is no absolute and definite
standard that every human being would empty his stomach
within two to three hours of taking the meals, irrespective of what
kind of meal had been taken by the concerned person.
42. Judging the time of death from the contents of the stomach,
may not always be the determinative test. It will require due
corroboration from other evidence. If the prosecution is able to
prove its case beyond reasonable doubt and cumulatively, the
evidence of the prosecution, including the time of death, is proved
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beyond reasonable doubt and the same points towards the guilt
of the accused, then it may not be appropriate for the Court to
wholly reject the case of the prosecution and to determine the
time of death with reference to the stomach contents of the
deceased.
43. While discussing various judgments of this Court, Modi in
the aforesaid book at page 543 has recorded as under: -
“….The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of the occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when the deceased had his last meal and what that meal consisted of [Masjit Tato Rawool v. State of Maharashtra, (1971) SCC (Cr.) 732; Gopal Singh v. State of Uttar Pradesh, AIR 1979 SC 1932; Sheo Darshan v. State of Uttar Pradesh, (1972) SCC (Cr) 394]. The presence of faecal matter in the intestines is not conclusive, as the deceased might be suffering from constipation. Where there is positive direct evidence about the time of occurrence, it is not open to the court to speculate about the time of occurrence by the presence of faecal matter in the intestines [Sheo Dershan v. State of Uttar Pradesh (1972) SCC (Cr.) 394]. The question of time of death of the victim should not be decided only by taking into consideration the state of food in the stomach. That may be a factor which should be considered along with other evidence, but that fact alone cannot be decisive[R. Prakash v. State of Uttar Pradesh (1969) 1 SCC 48, 50]
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44. Such an approach would even otherwise be justifiable as in
some cases the evidence may not be sufficient to establish as to
what the last meal was and what article of food, if any, was taken
by the deceased. So also, the ‘sluggish chronometric sense of the
countryside community of India is notorious’ and even urban folk
make mistakes about time, when there is no particular reason to
observe and remember a minor event like taking of a morning
meal. In such circumstances where semi-digested food was
found in the stomach, the contention, that it must be inferred
from it that the occurrence must have taken place after the
deceased had taken his evening meal may not be accepted.
45. This Court in the case of Shivappa v. State of Karnataka
[(1995) 2 SCC 76] stated the dictum that medical opinion is
admissible in evidence like all other types of evidence and there is
no hard-and-fast rule with regard to appreciation of medical
evidence. It is not to be treated as sacrosanct in its absolute
terms. Agreeing with the view expressed in Modi’s book on
Medical Jurisprudence and Toxicology, this Court recorded that
so far as the food contents are concerned, they remain for long
hours in the stomach and the duration thereof depends upon
various other factors. Indisputably, a large number of factors are
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responsible for drawing an inference with regard to the digestion
of food. It may be difficult, if not impossible, to state exactly the
time which would be taken for the purpose of digestion.
46. Similarly, in the case of Jabbar Singh v. State of Rajasthan
[(1994) SCC (Cr.) 1745], the Court while dealing with the evidence
of DW-1 who had opined that since there was some semi-digested
food, the occurrence must have taken place earlier and not at
3.00 a.m. The Court reiterated the principle that this was an
opinion evidence and the possibility of the deceased having eaten
late in the night could not be ruled out.
47. In view of the above medical references, the view expressed
in Modi’s book (supra) and the principles stated in the judgments
of this Court, it can safely be predicated that determination of the
time of death solely with reference to the stomach contents is not
a very certain and determinative factor. It is one of the relevant
considerations. The medical evidence has to be examined in light
of the entire evidence produced by the parties. It is certainly a
relevant factor and can be used as a significant tool by the Court
for coming to the conclusion as to the time of death of the
deceased but other factors and circumstances cannot be ignored.
The Court should examine the collective or cumulative effect of
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the prosecution evidence along with the medical evidence to
arrive at the correct conclusion. There is no evidence in the
present case which establishes, with exactitude, the time at
which the accused, the deceased and the eye-witness (PW11)had
their dinner. The only evidence is that they had dinner and after
having dinner they had gone to sleep. This necessarily would
apply that they had dinner late and not in the early hours of the
evening. As already noticed, according to PW11, he had come to
his sister’s house at about 7.00 p.m., whereafter all the events
occurred. The evidence of PW3 also remained unchallenged that
the death of Indra had taken place between 1.00 a.m. to 1.30
a.m. on 10th February, 1999. Therefore, we find no reason to
accept this contention on behalf of the appellant.
48. The next contention raised on behalf of the appellant is that
both the accused persons, Sunil and Satish, were residents of a
village which was far away from the place of occurrence and they
were not present at the place of occurrence. Furthermore, they
also questioned the very presence of the eye-witness, PW11, on
the fateful day at the scene of occurrence. The statement of the
sole witness is not trustworthy, particularly when the said
witness himself has not partially been believed by the trial Court.
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The mere fact that the accused were residents of a village at some
distance would be inconsequential. As per the statement of the
witnesses, both these accused were seen by them in the house of
Ratti Ram where the deceased was murdered. We are also
unable to accept the contention that presence of PW10 and PW11
at the place of occurrence was doubtful and the statements of
these witnesses are not trustworthy. Reliance on behalf of the
accused has been placed on the judgment of this Court in the
case of Rupchand Chindu Kathewar v. State of Maharashtra
[(2009) 17 SCC 37]. In that case the Court, as a matter of fact,
found that the statement of PW2 was not qualitatively
unimpeachable. Having disbelieved the sole witness, the Court
had given benefit of doubt to the accused. However, the Court
had found that the prosecution case was not even supported by
medical evidence and the conduct of the said witness was very
unnatural.
49. We are unable to understand as to what assistance the
learned counsel for the appellant wishes to derive from the facts
of this case. We are to deal with the present case on its own
facts. Both the trial court and the High Court have believed
PW10 and PW11 and have returned a finding of guilt against the
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accused. The Courts have adversely commented upon the
conduct of these witnesses but not with regard to the material
events of the prosecution case. PW10 was under threat and
confinement of his own family members as well as friends of the
accused, who had conspired to kill Indra, that is how he obeyed
the command of Jitender and others in coming from the fields on
the motorcycle and getting the door of Chobara opened by Indra
where she was sleeping with her child. He claims to have been
under continuous threat and illegal confinement of Jitender and
the other accused. It was PW10’s own house where the murder
has taken place and, therefore, his presence in the house cannot
be doubted in the normal course. PW11 is the brother of the
deceased and he had come late in the evening to meet his sister
and sort out the issues with regard to the return of the properties
which Ratti Ram had given to the appellants herein, Satish and
Sunil.
50. The statement of PW11 also finds corroboration from the
medical evidence. PW3, Dr. L.L. Bundela, has stated that besides
ligature marks on her neck, the face of the deceased was swollen
and congested. Six other injuries were found on the body of the
deceased. There were abrasions on elbow and wrist of the
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deceased. She had also suffered abrasion injury on her left
eyebrow and on dissection, infiltration of blood was found present
in the subcutaneous tissues. The post mortem report, Ex.P4 to
P5, states the cause of the death, as per opinion of the Board, as
asphyxia due to strangulation, which was ante mortem in nature
and sufficient to cause death in the ordinary course of nature.
This medical evidence fully corroborates what had been testified
by PW11. According to that witness, Ratti Ram and Pawan had
held the hands of Indra while Sunil and Satish were
strangulating her by putting put a rope around her neck. She
struggled to free herself from the grip of these persons but in
vain. Later, it was found that she had been killed. It is a case
where the ocular evidence of PW11 is corroborated by medical
evidence and is also partially supported by the statement of
PW10, the husband of the deceased. Thus, in our considered
view, the statements of PW10 and PW11 cannot be said to be
doubtful or which cannot be believed by the Court. Their
presence at the place of occurrence was natural and what they
have stated is not only plausible but completes the chain of
events in the case of the prosecution.
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51. The accused in the present appeal had also taken the plea
of alibi in addition to the defence that they were living in a village
far away from the place of occurrence. This plea of alibi was
found to be without any substance by the Trial Court and was
further concurrently found to be without any merit by the High
Court also. In order to establish the plea of alibi these accused
had examined various witnesses. Some documents had also
been adduced to show that the accused Pawan Kumar and Sunil
Kumar had gone to New Subzi Mandi near the booth of DW-1
and they had taken mushroom for sale and had paid the charges
to the market committee, etc. Referring to all these documents,
the trial court held that none of these documents reflected the
presence of either of these accused at that place. On the contrary
the entire plea of alibi falls to the ground in view of the
statements of PW-10 and PW-11. The statements of these
witnesses have been accepted by the Courts below and also the
fact that they have no reason to falsely implicate the accused
persons. Once, PW-10 and PW-11 are believed and their
statements are found to be trustworthy, as rightly dealt with by
the Courts below, then the plea of abili raised by the accused
loses its significance. The burden of establishing the plea of alibi
lay upon the appellants and the appellants have failed to bring on
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record any such evidence which would, even by reasonable
probability, establish their plea of alibi. The plea of alibi in fact is
required to be proved with certainty so as to completely exclude
the possibility of the presence of the accused at the place of
occurrence and in the house which was the home of their
relatives. {Ref. Shaikh Sattar v. State of Maharashtra [(2010) 8
SCC 430]}.
52. It has been correctly contended on behalf of the appellants
while relying upon the judgment of this Court in the case of S.P.
Bhatnagar v. State of Maharashtra [(1979) 1 SCC 535], that
statement of the co-accused recorded under Section 313 Cr.PC
cannot be used against the other co-accused. Ratti Ram, in his
statement under Section 313 CrPC, had admitted material parts
of the prosecution case including that he had parted away with a
buffalo, some household articles and cash amount of Rs.50,000/-
in favour of the family of Satish and Sunder and that Indra had
objected to it. He also admitted that the door was opened by
Indra on the asking of Surender, whom Jitender had brought on
motor cycle from the fields. However, he denied having
committed the murder of Indra.
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53. The proposition of law advanced by the counsel for the
appellants cannot be disputed. The fact of the matter remains
that statement of Ratti Ram under Section 313 CrPC is part of
the judicial record and could be used against Ratti Ram for
convicting him, if the prosecution had proved its case in
accordance with law. Ratti Ram, unfortunately, died during the
pendency of the proceedings. The part of his statement that
supports the case of the prosecution as well as the statement of
PW-10 and PW-11 can be relied upon by the prosecution to a
limited extent. This statement may not be used against the
present accused as such, but the fact that the statement of Ratti
Ram under Section 313 CrPC supports the case of the
prosecution cannot be wiped out from the record and would have
its consequences in law. Without using the statement of Ratti
Ram against these accused, the courts below have correctly
relied upon the statement of PW-10 and PW-11 and the
medical evidence. This finding recorded by the Courts cannot,
therefore, be faulted with.
54. The present accused have not been convicted on the basis of
a mere suspicion. The prosecution has been able to establish its
case beyond reasonable doubt by ocular, documentary and
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medical evidence. The bangles which were recovered from the
place of occurrence and the injuries that were inflicted upon the
body of the deceased clearly show that she struggled for life and
was murdered at the hands of accused. Thus, it is not a case of
mere suspicion and the reliance placed by the counsel upon the
judgment of this Court in Nachhatar Singh v. State of Punjab
[(1976) 1 SCC 750], is entirely misplaced.
55. We have already noticed that Pawan Kumar had preferred a
separate appeal which came to be dismissed by this Court
on the ground of delay as well as on merits vide its order dated
14th October, 2011. Of course, dismissal of the SLP at the
admission stage itself may not adversely affect the case of the
present appellants. In the case of Jalpat Rai and Ors. v. State of
Haryana [JT 2011 8 SC 55], this principle has been enunciated
by stating that dismissal of SLP summarily does not mean
affirmation of the judgment of the High Court on merits and does
not even amount to acceptance of the correctness of the High
Court decision. We do not intend to dwell on this issue any
further.
56. We also do not propose to rely upon the dismissal of the SLP
filed by Pawan Kumar since we have come to an independent
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conclusion on merits that the prosecution in the present case has
been able to bring home the guilt of the appellants-accused and
the judgment of the High Court under appeal does not call for
any interference.
57. For the reasons afore-mentioned, both the above appeals
are dismissed.
…….…………......................J. (A.K. Patnaik)
...….…………......................J. (Swatanter Kumar)
New Delhi, May 8, 2012
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