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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.   1842         OF 2014

[Arising out of Special Leave Petition (Crl.) No.6673 of 2012]

Balwan & Ors.            …      Appellant(s)  

versus

State of Haryana                 …     Respondent(s)

With

CRIMINAL APPEAL NO.  1844         OF 2014 (Arising out of  Special Leave Petition (Crl.) No.6384 of 2012)

And

CRIMINAL APPEAL NO.  1843       OF 2014 (Arising out of Special Leave Petition (Crl.) No.6674 of  

2012)

J U D G M E N T

C. NAGAPPAN, J.  1. Leave granted.

2. These three appeals are preferred against the common  

judgment  dated  27.01.2012  passed  by  the  High  Court  of

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Punjab  and  Haryana  at  Chandigarh  in  Criminal  Appeal  

no.486-DB of 2004 and Criminal Appeal no.547-DB of 2004.

3. The appellants herein are six in numbers and were tried  

along with others for the charges under Sections 148, 149,  

302,  307,  449,  323 and 216 of  Indian Penal  Code and in  

addition  under  Section  25  of  the  Arms  Act,  1959  against  

appellant Naresh and the Trial Court found them guilty of the  

offence under Section 302 read with Section 149 IPC and  

sentenced them each to undergo imprisonment for life and  

to pay fine of Rs.10,000/- each with default sentence; further  

found them guilty for  the offence under Section 307 read  

with Section 149 IPC and sentenced them each to undergo  

rigorous  imprisonment  for  8  years  and  to  pay  fine  of  

Rs.5000/-  each  with  default  sentence;  further  found them  

guilty for the offence under Section 449 read with Section  

149  IPC  and  sentenced   them  each  to  undergo  rigorous  

imprisonment for 5 years and to pay fine of Rs.3000/- each  

with  default  sentence;  further  found  them  guilty  for  the  

offence under Section 148 IPC and sentenced them each to  

undergo rigorous imprisonment for 2 years each and found

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them  guilty  for  the  offence  under  Section  323  read  with  

Section  149  IPC  and  sentenced  them  each  to  undergo  

rigorous imprisonment for 9 months.  In addition appellant  

Naresh was found guilty for the offence under Section 25 of  

the  Arms  Act  and  was  sentenced  to  undergo  rigorous  

imprisonment for 2 years and to pay fine of Rs.2000/- with  

default sentence.  The Trial Court directed the substantive  

sentences to run concurrently.   Challenging the conviction  

and  sentence  the  accused  preferred  appeals  in  Criminal  

Appeal no.486-DB of 2004 and Criminal Appeal no.547-DB of  

2004 and the High Court allowed the appeal  preferred by  

accused Subhash and acquitted him of  the charges.   The  

appeals  preferred  by  the  other  accused  were  dismissed.  

Aggrieved  by  the  confirmation  of  their  conviction  and  

sentence six accused have preferred the present appeals.

4. The prosecution case in brief is stated thus :  PW4 Smt.  

Rekha is the daughter-in-law of deceased Bani Singh.  PW5  

Smt.  Sudha  is  the  married  daughter  of  the  deceased.  

Accused Naresh and Naseeb are sons of accused Dharambir.  

Accused  Satish  @  Shakti  and  accused  Satbir  are  real

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brothers.  On 26.5.2001 at about 1.30 a.m. PW4 Smt. Rekha  

and  her  husband  Rishikesh  were  sleeping  in  the  upstairs  

room  of  their  house.   Her  father-in-law  Bani  Singh,  her  

mother-in-law  Smt.  Phulla  and  her  sister-in-law  PW5  Smt.  

Sudha were sleeping in the ground floor of the house.  At  

that  time  accused  persons  Dharambir  carrying  gandasa,  

Naresh  armed  with  country  made pistol,  Satbir,  Satish  @  

Shakti and Dhillu all  armed with gandasa, Balwan carrying  

jelly,  Ram Mehar  armed with  gandasa  and  Dhaula  armed  

with  darant,  all  entered  their  house  after  scaling  the  

boundary wall.   The appellants/accused went upstairs  and  

brought PW4 Smt. Rekha and her husband Rishikesh to the  

ground floor and exhorted that they should be killed to take  

revenge for  the  murder  of  Yudhvir.   Thereafter,  Satish  @  

Shakti inflicted a gandasa blow on the neck of Bani Singh,  

Satbir caused gandasa blow at the very same place on the  

neck of Bani Singh, as a result of which, Bani Singh fell down  

and Dharambir inflicted gandasa blow on his right wrist and  

Dhillu gave gandasa blow which hit him in between his little  

and ring finger of the right hand.  Dhaula inflicted a darant

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blow on the right leg of Rishikesh.   Ram Mehar gave two  

gandasa blows on the left side of PW4 Smt. Rekha’s back  

and  one  gandasa  blow  on  the  head  of  PW5 Smt.  Sudha.  

Naresh fired shots from the pistol  which he was carrying.  

Balwan gave a jelly blow causing an injury on the right hand  

of  Smt.  Phulla.   Hearing  the  cries  raised  by  the  injured  

persons, Umed Singh and Ram Kumar rushed to the spot and  

the appellants/accused ran away with their weapons.  Bani  

Singh succumbed to the injuries on the spot.   The injured  

Rishikesh and PW5 Smt. Sudha were taken to the General  

Hospital, Bhiwani for treatment.

5. At  9.00  a.m.  on  the  same  day,  PW18  Sub-Inspector  

Balwan Singh reached the occurrence place and recorded  

Ex.PE the statement of PW4 Smt. Rekha and the Ex.PR, FIR  

was  registered  at  10.10  a.m.  on  the  same  day.   PW  18  

Balwan  Singh  conducted  inquest  and  prepared  Ex.PCC  

inquest report.  Ex.PHH is the rough site plan prepared by  

him.  He sent the body of Bani Singh to General Hospital,  

Bhiwani for conducting post-mortem.

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6. PW14  Dr.  N.K.  Chaudhary  conducted  autopsy  on  the  

body of  Bani  Singh on 26.5.2001 and found the  following  

injuries :

1. An  eleptical  wound  left  side  of  neck  starting  from  midline  reaching  up  to  mastoid  process  measuring 5.5” x 4” involving the left pinna partially  amputated.   The  lower  lateral  lobule  of  pinna,  muscles, carotid vessels were exposed and there was  subcutaneous  echymosis  present  under  the  skin,  carotid vessels ruptured.  Clotted blood present.

2. Incised wound 1 x .5 inch on the right hand at  lower one third laterally placed.  Muscle exposed.

3. Incised  wound  cutting  through  the  centre  of  little finger and ring finger at right hand reaching up  to middle of palm, Muscle deep fracture of second  metacarpal present.

He expressed opinion that death has occurred on account of  

shock and haemorrhage due to injuries to major vessels and  

nerves.

7. PW8  Dr.  Vasundhara  Gupta  examined  Rishikesh  on  

26.5.2001 at 03.25 a.m. and found following injuries :

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1. Lacerated  wound  of  8  cm  x  6  cm over  the  anterior  surface  of  right  leg  middle  1/3rd region.  Fresh  bleeding  was  present.   Advised  x-ray  and  ortho surgeon’s opinion.

2. A lacerated wound of 12 x 4 cm over the left  side of face extending from the cheek to left frontal  region  of  scalp.   Fresh  bleeding  was  present.  Advised x-ray band surgeon’s opinion.

8. On the same day PW8 Dr. Vasundhara Gupta examined  

PW5 Smt. Sudha and found the following injury :

Lacerated wound of 8 cm x 4 cm x 1 cm over the  left  side of  frontal  region of  scalp.   Swelling was  present.  Profuse bleeding was present.  Advised x- ray and surgeon’s opinion.   The patient was kept  under  observation  and  subjected  to  x-ray  and  opinion for nature of injuries.  Duration of injury was  within 24 hours.  Kind of weapon was to be given  after  x-ray  report.   Copy  of  MLR  is  Ex.PM which  bears my signature.

9. PW15 Dr. Mahender Kumar examined PW4 Smt. Rekha  

on 26.5.2001 and found the following injuries :

1. A lacerated wound triangular shape having 4  cm  length  of  each  arm  on  left  lower  back,

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superficial, redish in colour at the level of L4 and L5.  Advised  x-ray  lumbar  area  AP  and  lateral  also  opined for  General  Surgeon’s opinion.   Injury was  kept under observation.

2. A lacerated wound present at upper back on  the left lateral side measuring 6 cm x .5 cm x .5 cm  and another just above it measuring 3 cm x .5 cm  x .5 cm.  Advised x-ray thorasic AP and lateral and  opined for surgeon opinion.

10. PW15 Dr. Mahender Kumar also examined Smt. Phulla  

and found the following injuries :

1. Swelling,  tenderness  the  right  forearm.  Advised x-ray.  AP and lateral and opined for ortho  surgeon opinion.

2. Complaint of pain in the left foot.

11. PW18 Sub-Inspector Balwan Singh seized blood stained  

earth,  one  khol  of  cartridge  and  one  sikka  from  the  

occurrence place  by  preparing  a  Memo and  recorded the  

statements  of  witnesses.   He  arrested  the  accused  and  

recovered  the  weapons  on  the  information  furnished  by

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them  in  their  disclosure  statements.   On  completion  of  

investigation final report came to be filed in the case.   

12. During the trial the prosecution examined PWs 1 to 27  

and  marked  documents.   The  accused  persons  were  

examined under  Section 313 Cr.P.C.  and their  statements  

were recorded.  Thereafter, two witnesses were examined in  

defence.  The Trial Court acquitted accused Balbir Singh and  

found  the  remaining  nine  accused  guilty.   Out  of  them  

accused  Naseeb  was  released  on  probation  since  he  was  

found to be a juvenile.  The remaining eight accused were  

convicted and sentenced as stated earlier.

13. On appeal to the High Court the appeal preferred by  

accused Subhash was allowed and he was acquitted of the  

charges and at the same time, the appeals preferred by the  

other appellants/accused were dismissed.  Challenging their  

conviction  and  sentence  six  accused  have  preferred  the  

present appeals.

14. Shri Sushil Kumar, learned senior counsel appearing for  

the appellants, contended that there was inordinate delay in

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registering the FIR and it has come into existence after due  

deliberations  to  falsely  implicate  the  appellants  and  the  

prosecution case should be discarded.  He also contended  

that  as per  the testimonies  of  the eye witnesses accused  

Satish @ Shakti  and Satbir  Singh gave individual  gandasa  

blows on the neck of Bani Singh, whereas the post-mortem  

doctor  has  noticed single  injury  only  on the neck  of  Bani  

Singh and hence the overt act attributed to Satbir Singh is  

doubtful and his presence itself is not established.  It is his  

further contention that out of four persons alleged to have  

been  injured  during  the  occurrence,  two  alone  were  

examined  as  witnesses  and  the  non-examination  of  other  

two  injured  witnesses  affects  the  prosecution  case  and  

makes it doubtful.  Lastly, he contended that the occurrence  

had not taken place inside the house of Bani Singh and the  

appellants are falsely implicated due to party faction in the  

village.   

15. Per  contra,  Shri  Manjit  Singh,  learned  Additional  

Advocate  General  appearing  for  the  respondent-State,  

contended that it is midnight occurrence and the parties are

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known to each other, being residents of the same village and  

PW4 Rekha and PW5 Sudha have not  only  witnessed the  

occurrence but sustained injuries in the attack made by the  

assailants on them and their testimonies have rightly been  

relied upon and after  the occurrence immediate  attention  

was given to take the injured to the hospital and thereafter  

the police were informed and it cannot be said that there  

was  undue  delay  in  this  regard  and  the  conviction  and  

sentences imposed on the appellants are sustainable.

16. The prosecution case is based on the ocular testimony  

of PW4 Rekha and PW5 Sudha.  They are the daughter-in-law  

and daughter, respectively, of deceased Bani Singh.  They  

have categorically testified about the brutal attack made by  

the  appellants  on  victims  by  describing  their  overt  acts  

during the occurrence.   Both  of  them in  their  statements  

recorded  during  the  investigation,  as  well  as,  in  their  

testimonies have stated that electricity lights were on in the  

house,  at  the  time  of  occurrence.   Their  presence  in  the  

house  cannot  be  doubted  and  they  had  no  difficulty  in  

identifying the assailants.   Both of them sustained injuries

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and the grievously injured PW5 Sudha was admitted in the  

hospital  at  3.25  a.m.  itself.   The  medical  evidence  is  

available on record.   Rishikesh and Smt.  Phulla  were also  

injured during the occurrence but were not examined.  The  

testimonies of injured witnesses PW4 Rekha and PW5 Sudha  

are natural, cogent and trustworthy and non-examination of  

the other two injured witnesses does not, in any way, affect  

the prosecution case.  In a similar fact situation this Court in  

the decision in Mano Dutt vs. State of U.P. (2012) 4 SCC  

79, held thus :

“29. As per  PW5,  Dr.  Surya Bhan Singh,  he had  examined Salik Ram Yadav as well as Nankoo on  22.10.1977  itself  and  noticed  as  many  as  five  injuries on Salik  Ram and four  injuries upon the  person of Nankoo.  He stated that the deceased  was the son of Nankoo, while Salik Ram was his  brother.   These  injuries  were  suffered  by  them  from a blunt object. 30. Salik  Ram  was  examined  as  PW2  and  his  statement  is  cogent,  coherent,  reliable  and fully  supports the case of the prosecution.   However,  the  other  injured  witness,  Nankoo,  was  not  examined.   In  our  view  non-examination  of  Nankoo, to which the accused raised the objection,  would  not  materially  affect  the  case  of  the  prosecution.  Normally,  an injured witness would  enjoy greater credibility because he is the sufferer  himself  and  thus,  there  will  be  no  occasion  for

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such a person to state an incorrect version of the  occurrence,  or  to involve anybody falsely and in  the bargain protect the real  culprit.”……………….  

It is trite law that the evidence of injured witness, being a  

stamped witness, is accorded a special status in law.  This is  

as a consequence of the fact that injury to the witness is an  

inbuilt guarantee of his presence at the scene of the crime  

and  because  the  witness  would  not  want  to  let  actual  

assailant go unpunished.   

17. The contradictions and variations in the testimonies of  

the aforesaid witnesses, in our considered view do not go to  

the root of the case and the substratum of the prosecution  

version remains undisturbed.  It is to be borne in mind that  

both of them are rustic women and not tutored witnesses.

18. The occurrence had taken place in the midnight at 1.30  

a.m. leaving one person dead on the spot and four others  

injured.   Two  of  the  grievously  injured  persons  were  

immediately  taken  to  hospital  and  the  remaining  two  

remained near the body in the house.  The distance between

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the  occurrence  place  and  the  police  station  is  about  10  

kilometers.  PW18 Sub-Inspector Balwan Singh recorded the  

statement  of  PW4  Rekha  at  9.00  a.m.  in  the  occurrence  

place and the FIR came to be registered at 10.10 a.m. and  

the special report was delivered in the Court at about 11.30  

a.m.  In the facts of the case, we are unable to appreciate  

the contention of the appellants that  FIR came into being  

after  deliberation  and  there  is  nothing  to  suspect  in  the  

prosecution  case.   The  Investigation  Officer  PW18  Sub-

Inspector Balwan Singh has seized blood stained earth from  

the occurrence place and that clinches the situs of the crime.  

The contention of the appellants that the occurrence had not  

taken place in the house of Bani Singh is devoid of merit.  In  

fact, Bani Singh immediately succumbed to the injuries and  

the homicidal death is established by the medical evidence.

19. There  was  also  motive  for  the  occurrence.   The  

appellants nurtured a grudge against the victims on account  

of murder of Yudhvir, son of Gugan Singh, belonging to their  

party  and one of  the family  members  of  the complainant

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side  was  involved  in  the  said  murder  and  that  has  

culminated in the occurrence.

20. While  considering  the  involvement  of  Satbir  Singh in  

the occurrence, we find some difficulty.  The eye witnesses  

PW4 Rekha and PW5 Sudha have testified  Satish @ Shakti  

gave  a  gandasa  blow  on  the  neck  of  Bani  Singh  and  

thereafter Satbir Singh gave a gandasa blow on the neck of  

Bani  Singh.   PW14  Dr.  N.K.  Chaudhary  who  conducted  

autopsy on the body of Bani Singh found a single injury on  

the neck of  Bani  Singh.  Hence the overt  act  attributed to  

Satbir  Singh,  namely,  attack  on  neck  of  Bani  Singh  with  

gandasa, becomes doubtful and his presence cannot be said  

to be established and the benefit of doubt has to be given to  

him.  But so far as the other appellants are concerned, the  

prosecution  version  is  consistent,  namely,  that  they  were  

armed with the lethal weapons and attacked the deceased  

and others and the conviction and sentences recorded by  

the  Courts  below  are  correct  and  does  not  call  for  any  

interference.

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21.    In the result the appeal preferred by the appellant  

Satbir Singh in Special Leave Petition (Criminal) no.6674 of  

2012 is allowed and the conviction and sentences imposed  

on him is set aside and he is acquitted of the charges.  The  

other  two  appeals  in  Special  Leave  Petition  (Criminal)  

no.6673  of  2012  and  Special  Leave  Petition  (Criminal)  

no.6384 of 2012, are dismissed.

…….…………………...J. (T.S. Thakur)

                                               .…………………………J.

(C. Nagappan)

                                                       ……..…………………...J.

(Adarsh Kumar  Goel)

New Delhi; August   26, 2014.