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{REPORTABLE}   IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO(s) 1590/2011

Daya Ram & Ors. .....Appellant(s)

VERSUS

State of Haryana .....Respondent(s)   

JUDGMENT

AMITAVA ROY, J.

Having  failed  to  secure  redress  against  their  conviction

under section 302 of the Indian Penal Code (for short hereinafter

referred to as IPC/Code) read with Section 34 of the Code,  and

the  sentence  consequential  thereto,  from  the  High  Court  of

Punjab  and  Haryana,  at  Chandigarh,  the  appellants  seek  the

remedial intervention of this Court. By the impugned judgment

and  order  dated  28.7.2010  rendered  in  Criminal  Appeal  No.

261-DB of  2003 and Criminal  Revision Petitioner  No.  1560 of

2003, the High Court has sustained the decision of the Additional

Sessions  Judge  (Ad-hoc),  Hissar  passed  in  Sessions  Case  No.

120/SC on 06.02.2003, sentencing the appellants, following their

conviction as above, to suffer imprisonment for life and to pay a

fine  of  Rs.500/-  each,  in  default,  to  undergo  further  rigorous

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imprisonment for six months.  As alongwith the appellants, three

others,  namely,  Devi  Lal,  Chander  Singh  and  Vidyadhar  alias

Didaru were also tried but were acquitted,  the Complainant  /

Informant  Bajrang  Bali  being  aggrieved  had  filed  Criminal

Revision Petition No. 1560 of 2003, which was dismissed.  The

High Court thus, in toto sustained the verdict of the learned trial

court on both counts.

2. We have heard Mr. P. N. Kush, the learned counsel for the

appellants  and  Mr.  Arun  Kumar,  the  learned  counsel  for  the

Respondent.

3. The prosecution case is traceable to the First Information

Report  (for  short  hereinafter  referred  to  as  FIR)  recorded  on

25.8.2001 at 12.15 PM, on the version made by the informant

Bajrang Bali to the effect that on 23.8.2001, the aforenamed Devi

Lal, Chander Singh, Vidyadhar alias Didaru and Daya Ram, sons

of Sahi Ram, residents of the same village had abused his brother

Ashok and had threatened to kill him.  On being informed about

this  threat  on the  next  day  i.e.  24.8.2001,  the  informant  had

accompanied his brothers Rohtash and Ashok to their  field at

about 8.30/09.00 PM to look after the crops. According to the

informant,  as  soon  as  they  reached the  field,  Vidyadhar  alias

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Didaru, Chander Singh, Daya Ram, Madan and Devi Lal sons of

Sahi Ram and Hans Raj and Rohtash sons of Ami Lal all of the

same  village  came  out  from behind  the  standing  Bajara  crop

thereat,  being  armed  with  lathi,  jailly  and  gandasa  and

unleashed  a  series  of  assaults  on  Rohtash  and  Ashok.  The

informant alleged that the assailants had hid themselves in the

cover of the Bajara Crops and though he had accompanied his

brothers, he was behind them by 10/12 paces. He stated that on

seeing the attack, he concealed himself in the bushes nearby but

in the moonlight he could recognise all the seven assailants. He

mentioned  that  all  the  seven  persons  inflicted  injuries  on  his

brothers with their weapons whereupon the injured fell  on the

ground. According to the informant, Daya Ram thereafter fetched

a cart (peter rehra) parked nearby and the assailants removed his

brothers from the field. The informant stated that out of fear and

alarm he kept himself in the hiding for the rest of the night and

only  at  the  break  of  dawn,  he  went  back  to  the  village  and

disclosed the above episode to his cousin-brother  Sarwan and

thereafter embarked on a search for the injured. He stated that

after  a  thorough search,  they could  detect  the  dead bodies  of

Rohtash and Ashok lying in front of the door of the Dhani (small

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hutment adjacent to the agricultural field to enable the occupant

to  keep  a  vigil  on  the  crops)of  Sahi  Ram,  the  father  of  the

appellants, Daya Ram and Madan. The informant after waiting

there in inconsolable anguish and pain, left the spot to inform

the Police, by leaving Sarwan Kumar to be on guard. He met the

SHO, PS Adamur at the bus stand at Darauli, and disclosed the

whole incident.  His statement was recorded by the said officer

and after endorsing an observation that offences under Section

148/149/302/201  IPC  had  been  committed,  forwarded  the

report  to  the  police  station  Adampur  whereupon FIR  No.  207

dated 20.8.2001 was registered. Investigation followed, in course

whereof,  the  appellants  alongwith  Devi  Lal,  Chander  Singh,

Vidyadhar  alias  Didaru  were  arrested  and  acting  on  their

statements of disclosure, their weapons of the alleged assault i.e.

jailly, kulhari/Gandasa and lathis were recovered and seized. The

Investigating Officer also visited the site, performed inquest over

the dead bodies, prepared a report and despatched the bodies for

post-mortem examination. He drew a site-plan, collected samples

of  blood-stained  earth,  seized  amongst  others  a  bucket,  a

chappal (Hawai) from near the dead body of the Rohtash and one

pair of leather slippers from near the dead body of Ashok. The

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Investigating  Officer  prepared  recovery  memos  and  sealed  the

seized  items.  He  also  recorded  the  statement  inter-alia  of  the

informant,  Bajrang  Bali  and  others  and  eventually  laid  a

chargesheet  against  all  the  seven  persons  under  the  above

provisions of the Code.  The matter was eventually committed to

the Court of the Additional Sessions Judge (Ad-hoc), Hissar and

charge under Section 302/201/148/149 IPC was framed against

all  the  seven  persons  including  the  appellants,  to  which  they

pleaded “not guilty”.  

4. At  the  trial,  the  prosecution  examined  several  witnesses

including the informant, Bajrang Bali, PW 3, and the doctors who

had conducted the post-mortem examination of the dead bodies

and had examined the appellants Madan Lal and Daya Ram.  The

prosecution  also  proved  the  report  of  the  Forensic  Science

Laboratory,  Haryana  on  the  samples  of  earth  as  well  as  the

bucket  and  weapons  of  assault  forwarded  to  it  for  serological

investigation.  It  proved  as  well  the  post-mortem  and  medical

reports  alongwith  disclosure  statements  and  got  identified

through witnesses the seized weapons and other articles. After

the  closure  of  the  evidence  of  the  prosecution,  the  accused

persons  were  examined  under  Section  313  Cr.P.C.  in  course

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whereof all of them pleaded to be innocent.  One witness, namely,

Rati Ram H.C. was examined in defence.  

5. The learned trial court on a consideration of the evidence on

record and after  analyzing the rival  contentions,  convicted the

appellants under Section 302 IPC read with Section 34 of  the

Code and sentenced them as above.  However, being of the view

that the complicity of the other three accused persons, namely,

Devi  Lal,  Chander  Singh  and  Vidyadhar  alias  Didaru  was

doubtful, as the lathis otherwise identified to have been used by

them did not wear blood-stains, it acquitted them on the benefit

of doubt. It rejected the defence plea of delay in lodging of the

FIR,  having  regard  to  the  developments  prior  thereto.   It

dismissed the challenge to the trustworthiness of the informant,

rejecting the defence plea of his indifferent conduct as a brother

when the deceased were being openly assaulted in his presence.

According  to  the  learned  trial  court,  it  was  not  unusual  for

individuals to react differently in such situations and was of the

view that there had been no undue delay in filing of the FIR. The

learned  trial  court  also  discarded  the  defence  plea  of

inconsistency between the injuries on the dead bodies with the

weapons of  assault  allegedly  used by observing that  the same

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could be inflicted by blunt weapons like lathi or jailly/kulhari, if

used by the blunt side. The narration of the incident as made by

the informant, PW 3 was otherwise accepted to be credible except

to  the  extent  of  participation  of  the  three  accused  persons,

namely, Devi Lal, Chander Singh and Vidyadhar in the assaults.

The  learned  trial  court  was  of  the  view  that  the  plea  of  the

defence that the informant as the eye-witness could not specify

the individual acts of assault, did not have any fatal bearing on

the case of the prosecution and returned a finding of guilt against

the  appellants  on  an  exhaustive  analysis  of  the  evidence  on

record, by taking note inter-alia of the factum of seizure of their

weapons  of  assault  i.e.  jailly,  gandasa  and  lathis  on  their

disclosures  and  also  the  report  of  the  Forensic  Science

Laboratory,  Haryana  detecting  human  blood  thereon.  The

sentence as above was awarded to the appellants after according

to  them,  hearing  in  connection  therewith.  The  High  Court

concurred with the learned trial court on all the above aspects

and maintained the conviction and sentence.

6. Before adverting to the competing assertions,  it  would be

appropriate  to  notice  the  relevant  evidence  in  brief.   The

informant  Bajrang  Bali  PW 3,  who  claimed  himself  to  be  the

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eye-witness  of  the  incident,  is  the  brother  of  the  deceased

persons. He stated on oath, that he had accompanied them to the

field  in  the  fateful  night  of  24.8.2001.  In  his  testimony,  he

mentioned  about  the  incident  of  threat  extended by  Devi  Lal,

Chander  Singh,  Vidyadhar alias  Didaru and Daya Ram to  his

brothers in the previous night  of  23.8.2001 and reiterated his

version as made in the FIR that on reaching the field at about

8/8.30 pm on 24.8.2001, the appellants and three others (since

acquitted) did all together, inflict several assaults on his brothers

(deceased), after emerging from behind the Bajara Crop standing

at  the  place  of  occurrence.  He  mentioned  that,  the  appellant

Madan  was  armed  with  jailly,  while  Daya  Ram  was  with  a

kulhari.  He testified, that others were armed with lathis. He said

that, he was behind his brothers by 10/15 paces and seeing the

sudden attack, he out of panic, hid himself behind the nearby

bush to save his life. He stated, that it was a moonlit night and

therefore, he could identify all the accused persons.  According to

him, as the injured fell on the ground after being assaulted, Daya

Ram brought  a  ‘peter  rehra’  whereafter,  all  of  them lifted  his

injured brothers thereon and left the field.  The witness stated,

that out of fear, he did not leave the field and it was only in the

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next morning that he returned to his village, and informed his

cousin-brother Sarwan about the incident and then both set off

to search the injured.  The witness stated, that eventually they

could detect the dead bodies of the two brothers near the ‘dhani’

of Sahi Ram.  He thereafter informed the police, who reached the

place of occurrence and apart from conducting the inquest on the

dead  bodies,  took  other  steps  including  seizure  of  a  bucket,

chappal etc. The witness also identified the accused persons in

court and amongst others the bucket, seized from the place of

occurrence.  

7. In cross-examination, PW 3 stated, that the dhani of Sahi

Ram was about fifteen killas from the place of occurrence. To a

suggestion  put  to  him  by  the  defence,  he  stated  that  it  was

correct that the incident had taken place 10/12 paces away from

him. He however admitted, that it was not possible to give the

details of the assaults, by the accused persons on his brothers.

He reiterated that he did not come out or intervene out of fear.

8. PW 1 Dr. Krishan Kumar stated, to have examined Madan

Lal on 25.8.2001 and to have detected a lacerated wound and an

abrasion on his body as detailed in his testimony.  He stated that

the injuries which could be caused by a blunt weapon, were also

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possible by a fall on the ground.  According to him the injuries

were six hours old.

9. This  witness  also  stated  that  on  27.8.2001,  he  had

examined Daya Ram, who complained of pain in his left thumb,

index  finger  and  the  adjoining  part  of  the  hand.  The  witness

stated that x-ray did not reveal any fracture.  The corresponding

reports were proved by him.  In cross-examination, this witness

reiterated  that  the  injuries  suffered  by  Madan  Lal  could  be

possible by a fall from a height of four to five feet.

10. In  his  evidence,  Dr  Arun  Gupta  who  had  performed  the

post-mortem examination on the dead bodies of the Ashok and

Rohtash on 26.8.2001 at about 9.50/10.15 AM, stated to have

detected the following injuries.

Ashok:  

“ 1. Lacerated  wound  about  1.5  cm  x  5  cm  on  the  anterior

surface of right leg in middle. Clotted blood seen.  2. Contusion with deformities was seen on upper part of left

hip joint. On dissection injury No. 2 the neck of left femur was fractured and clotted blood seen.

3. Lacerated wound about 4 cm x 5 cm vertical lines on the forehead approximately in middle.  On dissection of injury No.  3  the  frontal  bone  on  right  skull  was  fractured underlying  brain  tissues  were  injured.  Clotted  blood  was present.”

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Rohtash:

“ 1. Lacerated wound about 3 cm x 1 cm on the left side of the

head just above the eye brow. 2. Lacerated wound about 4 cm x 5 cm obliquely lying on the

occipital  bone  of  the  skull.   On  dissection  of  the  injury occipital bone was fractured underlying brain tissues were injured. Clotted blood seen.

3. On  dissection  of  abdomen  abdominal  cavity  was  having blood. The right lobe of liver was injured.”  

10.1 This witness opined that in case of Ashok, the cause of

death was multiple injuries and injury to the vital organ of the

body i.e. brain. According to this witness, the cause of death of

Rohtash was due to shock and haemorrhage and injuries to vital

organs of the body.  The doctor stated, in categorical terms, that

the injuries were ante-mortem in nature and sufficient to cause

death  in  the  normal  course.   According  to  him,  the  time-lag

between  death  and  the  post-mortem  examination  was

approximately 36/37 hours and death could have occurred on

24.8.2001 between 8.00 to 9.00 pm .

11. PW 9 Umed Singh, who was on 25.8.2001 posted as SHO,

PS  Adampur  and  to  whom  the  incident  was  first  lodged  by

Bajrang Bali PW 3, detailed the steps taken by him in course of

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the investigation.  While reiterating that, the information first in

time, about the incident, was lodged with him by the informant,

while he was stationed at bus stand, Darauli in connection with

patrol duty and that after recording the same he had forwarded it

to the police station for registration whereafter formal FIR was

recorded as Ex. P – 24, he deposed that, he went to the spot and

amongst others conducted inquest on the dead bodies and on

completion  of  the  formalities  despatched  the  same  for

post-mortem examination.  He also prepared a site-plan, made

seizures of the bloodstained earth, chappal/sleeper lying near the

dead  bodies,  a  bucket  smeared  with  blood,  and  packed  and

sealed the same and deposited all those with the police station.

This witness in categorical terms, referred to the statements of

disclosures, made by the appellants Rohtash, Devi Lal and Hans

Raj  leading  to  the  recovery  of  their  lathis  concealed in  places

mentioned  by  them  and  proved  the  statements  and  also  the

recovery  memos  in  connection  therewith.  The  disclosures  and

recovery were during 28.8.2001 and 29.8.2001. The witness also

deposed about the production of accused persons Chander Singh

and Vidyadhar alias Didaru in the police station on 23.10.2001

along with their lathis.  Similarly on the basis of the disclosure

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statements Ex. P-42 and Ex. P-43 made by the appellant Madan

Lal  and  Daya  Ram,  one  jailly  and  one  kulhari/gandasa  were

recovered from the fields near the dhani of Sahi Ram which were

accordingly packed and sealed. The witness stated as well, that

the  seized  articles/weapons  of  assault  were  forwarded  to  the

Forensic Science Laboratory, Haryana for serological examination

and on the receipt of the report and on a consideration of the

materials collected in course of the investigation, he submitted

the chargesheet.

12. In  cross-examination,  the  Investigating  Officer  amongst

others  reiterated  that  dhani  of  Sahi  Ram was  the  place  from

where the dead bodies were recovered.  He deposed further that

after  the  registration  of  the  FIR,  he  reached  the  place  of

occurrence,  at  about  1.30  PM and  after  exhausting  all  steps,

forwarded the dead bodies to the hospital at about 4.30 PM.

13. The  report  of  the  Forensic  Science  Laboratory,  Haryana

referred  to  in  course  of  the  arguments,  does  indicate  that

samples of  bloodstained earth,  one metal  bucket,  one kulhari,

one  jailly,  one  wooden  lathi  and  one  bamboo  lathi  had  been

forwarded for examination.  The sample of earth, bucket, jailly

and  the  lathis  were  subjected  to  serological  analysis  which

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confirmed human blood on jailly.  However,  vis-à-vis  the  earth

and bucket, the blood spot had disintegrated.

14. The  learned  counsel  for  the  appellants  has  strenuously

argued that  the prosecution having miserably failed to adduce

any  cogent  and convincing  evidence  in  support  of  the  charge,

they (appellants) ought to have been acquitted.  According to the

learned counsel, the prosecution case is liable to be rejected on

the  ground  of  unexplained  delay  in  the  lodging  of  the  FIR.

Further  the  version  of  PW 3  being  wholly  unreliable,  on  that

count as well, he being the only witness, the courts below ought

to have rejected the charge against the appellants, he urged.  Mr.

P. N. Kush argued as well that PW 3 being the sole eye-witness,

his testimony ought to have been scrutinized with all rigour and

as his version does unmistakably fail such test, conviction of the

appellants  should  not  have  been  based  thereon.  Without

prejudice to these pleas, the learned counsel, has insisted that

the acquittal of three of the seven accused persons charged with

the same offence, did destroy the substratum of the prosecution

case  and  that  therefore,  the  appellants  are  entitled  to  be

acquitted.

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15. As  against  this,  the  counsel  for  the  Respondent  has

maintained,  that  in  view  of  the  evidence  disclosing  the

intervening events leading to the filing of the FIR, the demur of

delay in connection therewith is wholly misplaced.  He dismissed

as well the criticism of the evidence of the PW 3 and asserted that

this  witness  was  wholly  reliable  and  in  view  of  the  detailed

description of the incident, the conviction of the appellants based

thereon  is  unassailable.   While  contending  that  the  medical

evidence on record and the ocular narration of the incident by

PW 3 are clearly consistent with each other, the learned counsel

has argued, that the charge against appellants is proved beyond

reasonable doubt and thus no interference with their conviction

and sentence is warranted.  According to the learned counsel, the

recovery of the weapons of assault on the disclosures made by

the appellants and the report of the Forensic Science Laboratory,

Haryana did corroborate their complicity and thus they had been

rightly convicted and sentenced by the courts below.

16. We have duly considered the evidence on record and also

the arguments based thereon. The case witnesses an incident of

double  murder  of  which  PW 3 has  been cited  to  be  the  only

eye-witness.  It is a matter of record, that the deceased persons

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were the brothers of this witness PW 3, who coincidently is also

the informant. The courts below on a correct assessment of his

evidence, had concluded that he indeed was present at the place

of  occurrence  at  the  time  of  the  incident.  Though  the

participation of the three of the accused persons, namely, Devi

Lal, Chander Singh and Vidyadhar alias Didaru was not accepted

due to absence of any blood mark in the lathis said to have been

wielded by them, in our opinion in the face of the overwhelming

and impregnable testimony of this witness on the entirety of the

events relatable to the incident, it is not possible to extend any

benefit  of  doubt  to  the  appellants  on that  count.  Suffice  it  to

state, that the ocular account of the incident presented by the

PW  3  has  been  in  graphic  details.  He  did  not  vacillate  in

identifying the appellants. He also could relate the weapons of

assault used by them.  The injuries sustained by the deceased in

course  of  the  incident  and those  detected in  the  post-mortem

examination are compatible with each other.  The seizure of the

weapons  of  assault  vis-à-vis  the  appellants  based  on  their

statements of disclosure and the report of the Forensic Science

Laboratory, also establish their irrefutable nexus with the crime.

The plea of the decomposition of the dead bodies to nihilate the

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medical  opinion also lacks persuasion.   Noticeably,  as per the

testimony of the doctor performing the post-mortem examination,

the time of death does tally with the one of the incident.

17. We are not inclined to reject the testimony of PW 3 on the

ground that his conduct had been unusual at the place of the

occurrence,  he  having  kept  himself  aloof  therefrom instead  of

attempting  to  save  his  brothers  who  were  under  murderous

attack by a group of assailants. As rightly observed by the courts

below that,  on being confronted with such an unforeseen and

sudden situation, it is quite likely that individuals would react

differently and if the PW 3, being petrified by such unexpected

turn of events, being in the grip of fear and alarm, as a matter of

reflex hid himself from the assailants, his version of the episode,

in our estimate, is not liable to be discarded as a whole as the

same is otherwise cogent, coherent and compact.

18. As  the  eventual  objective  of  any  judicial  scrutiny  is  to

unravel the truth by separating the grain from the chaff, we are

of the opinion that in the face of clinching evidence on record,

establishing the culpability of the appellants, their conviction and

sentence as recorded by the courts below does not call for any

interference  at  this  end.  The  participation  in  the  gory  brutal

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attack  of  the  appellants  with  the  lethal  weapons  resulting  in

death  of  two  persons  Ashok  and  Rohtash  is  proved  beyond

reasonable  doubt  not  only  by  the  testimony  of  PW  3,  the

eyewitness, but also by other evidence collected in course of the

investigation  and  adduced  at  the  trial.   On  an  overall

appreciation  of  the  materials  on  record,  we  find  ourselves  in

complete  agreement  with  the  findings  recorded  by  the  courts

below.

19. In the wake of the above, the impugned judgment and order

of  the  High Court  sustaining  the  decision  of  the  learned  trial

court  is  affirmed.  The  appeal  lacks  in  merits  and  is  thus

dismissed.  

……...........................J. (Prafulla C Pant)

……….…………………J. (Amitava Roy)

New Delhi,

Date: 02 July, 2015

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