Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     862     OF     2008   

Gudu Ram …..Appellant

Versus

State of Himachal Pradesh        …..Respondent

J     U     D     G     M     E     N     T      

Madan     B.     Lokur,     J.   

1. The question before us is whether, despite the sole  

eyewitness to the incident turning hostile, could the Trial  

Court and the High Court legitimately hold that the appellant  

committed the murder of Dalip Singh. In our opinion, despite  

the sole eyewitness turning hostile, it can and should be held  

on the facts of this case that though the appellant did commit  

a crime, it was not of murder but culpable homicide not  

amounting to murder.  

Crl. Appeal No.862 of 2008                                                                    Page 1 of 18

Page 2

The facts:

2. PW-2 Sheetal Singh was an employee of the Himachal  

Pradesh Transport Corporation, posted in a workshop of the  

Corporation at Taradevi in Himachal Pradesh. He was living in  

a rented accommodation and for the last about one year, his  

brother PW-1 Jai Pal Singh and the deceased Dalip Singh (his  

cousin brother) were living with him. The appellant (a cousin  

of Sheetal Singh’s wife) joined them in the rented  

accommodation about a week prior to the alleged murder of  

Dalip Singh by the appellant.

3. On the intervening night of 12th and 13th November, 2003  

Sheetal Singh was at work. Around 8 p.m., the appellant,  

Dalip Singh and Jai Pal Singh planned to cook some meat and  

consume some whisky brought by the appellant.

4. During the consumption of drinks and dinner, a minor  

brawl took place between the appellant and Dalip Singh as a  

result of Dalip Singh’s refusal to consume more whisky. At  

that time, Jai Pal Singh intervened and some sort of a truce  

was worked out.

Crl. Appeal No.862 of 2008                                                                    Page 2 of 18

Page 3

5. Later, Jai Pal Singh went to urinate and upon his return,  

he found the appellant and Dalip Singh involved in a scuffle.  

To prevent the scuffle from escalating, Jai Pal Singh asked  

Dalip Singh to accompany him to Sheetal Singh’s place of  

work so that Dalip Singh could spend the night over there  

away from the appellant.

6. According to the prosecution, when Jai Pal Singh and  

Dalip Singh had walked about 50-60 yards, the appellant  

appeared from behind and hit Jai Pal Singh on the head with  

a thapi and pushed him into the bushes. (A thapi is a wooden  

object shaped like a cricket bat used for beating clothes while  

washing). Thereafter, the appellant hit Dalip Singh with the  

thapi and pushed him also into the bushes.   

7. Jai Pal Singh did not sustain any serious injury and so  

he got up and went to inform Sheetal Singh about the  

incident.

8. Thereafter, Sheetal Singh accompanied by Jai Pal Singh  

went to the rented accommodation of Sheetal Singh since Jai  

Pal Singh had told him that a quarrel had taken place in the  

rented accommodation between Dalip Singh and the appellant.  

Crl. Appeal No.862 of 2008                                                                    Page 3 of 18

Page 4

When they did not find either the appellant or Dalip Singh in  

the rented accommodation, they went to search for them and  

at that time, upon hearing some cries, they came upon Dalip  

Singh lying in the bushes.  The appellant was apparently not  

traceable.

9. Both Jai Pal Singh and Sheetal Singh brought Dalip  

Singh back to the rented accommodation. Thereafter an  

ambulance was called and Dalip Singh was taken to the  

hospital where he succumbed to his injuries.

10. The appellant was charged with having committed the  

murder of Dalip Singh. He pleaded not guilty and claimed  

trial. In all, the prosecution examined 17 witnesses and also  

produced several documents and articles during the trial.

Decision of the Trial Judge:  

11. The Trial Judge analyzed the statements of the witnesses  

and the documents on record and concluded that the  

appellant had murdered Dalip Singh. It was held that the  

appellant’s presence in the rented accommodation along with  

Jai Pal Singh and Dalip Singh on the intervening night of 12th  

Crl. Appeal No.862 of 2008                                                                    Page 4 of 18

Page 5

and 13th November, 2003 was not in dispute.  It was also held  

that Dalip Singh died an unnatural death.  

12. It was argued before the Trial Judge that the sole eye  

witness, Jai Pal Singh had stated in his cross examination  

that he had not actually seen the appellant beat Dalip Singh  

or push him into the bushes. This witness was then cross-

examined by the Public Prosecutor on the ground that he was  

suppressing the truth. However, the Trial Judge relied on the  

evidence of Jai Pal Singh and held that he had positively  

deposed that the appellant had attacked Dalip Singh. Even  

though Jai Pal Singh may not have actually seen the attack,  

but it was clear that the appellant had hit and pushed Dalip  

Singh in the bushes after the attack on Jai Pal Singh.

13. In addition, the Trial Judge also noted the disappearance  

of the appellant in the middle of the night from the place of  

occurrence and his being later located in his village. This gave  

room for suspicion with regard to the conduct of the appellant  

post the incident.

14. The Trial Judge noticed the statement of PW-7 Rajinder  

Singh to the effect that there was some land dispute between  

Crl. Appeal No.862 of 2008                                                                    Page 5 of 18

Page 6

the family of Dalip Singh and Jai Pal Singh and that they were  

on inimical terms. However, he was of the view that the terms  

between them were not so strained as made out, otherwise  

there was no reason for Dalip Singh to stay in the rented  

accommodation along with Sheetal Singh and Jai Pal Singh for  

about a year. The Trial Judge also took note of the suspicion  

expressed by PW-7 Rajinder Singh that Jai Pal Singh may  

have caused the death of Dalip Singh but did not give much  

credence to this suspicion in view of the statement of Jai Pal  

Singh. The attempt to shift the blame onto Jai Pal Singh was,  

accordingly, discounted.

15. The Trial Judge also took into account the recovery,  

during interrogation, of a bloodstained pajama from the  

appellant’s house. This pajama had human bloodstains as per  

the report of the forensic science laboratory.  It was noted that  

though the bloodstains on the pajama were not matched with  

the blood group of Dalip Singh, the appellant had failed to  

explain the bloodstains.  

16. The Trial Judge noted the injuries on Dalip Singh as  

given by PW-16 Dr. Uvi Tyagi, Registrar, Department of  

Crl. Appeal No.862 of 2008                                                                    Page 6 of 18

Page 7

Forensic Medicine, I.G.M.C., Shimla. The injuries suffered by  

Dalip Singh were found to be ante mortem and were as  

follows:-

1. Two contusions on forehead 2 cm. above left  eyebrow 2.5 cm. apart from each other each of  size 1 cm. in dimension, bluish in colour.

2. A grazed abrasion over the root of the nose 2.5  cm. brownish in colour.

3. On opening the dressing (which was completely  soaked in blood) surgically stitched wounds over  the occipital region of the head.  They were four  in number.

17. The doctor was of the opinion that Dalip Singh died due  

to hemorrhagic shock as a result of the ante mortem head  

injuries.  He was also of the opinion that the injuries could  

possibly have been caused by a wooden stick or thapi. The  

Trial Judge noted that Jai Pal Singh was also injured and, as  

per the medical opinion, a blunt wooden stick could have  

caused his injury.

18. The appellant admitted in his statement recorded under  

Section 313 of the Code of Criminal Procedure that he was  

residing with Sheetal Singh. He admitted his presence in the  

Crl. Appeal No.862 of 2008                                                                    Page 7 of 18

Page 8

rented accommodation on the intervening night of 12th and  

13th November, 2003 but denied having consumed any drinks.  

According to him, only Jai Pal Singh and Dalip Singh were  

drinking.  He denied having had a brawl with Dalip Singh and  

denied any knowledge of the events which resulted in the  

death of Dalip Singh. In fact, he stated that he had left  

Taradevi for his village before the alleged incident took place.  

The appellant did not produce any witness in defence.

19. On the basis of the above material, the Trial Judge held  

that the appellant had murdered Dalip Singh and accordingly  

he was convicted for an offence punishable under Section 302  

of the Indian Penal Code.

Decision of the High Court:

20. Feeling aggrieved by the conviction and sentence passed  

by the Trial Judge, the appellant preferred an appeal to the  

High Court. By a judgment and order dated 31.10.2007  

passed by the High Court of Himachal Pradesh in Criminal  

Appeal No.562 of 2004, the conviction of the appellant for an  

offence punishable under Section 302 of the Indian Penal  

Code was upheld. The High Court held that there was  

Crl. Appeal No.862 of 2008                                                                    Page 8 of 18

Page 9

sufficient evidence to conclude that none other than the  

appellant caused the death of Dalip Singh.

Evidence of a hostile witness:

21. The prime question that we are required to consider is  

the credibility of Jai Pal Singh since he was the only  

eyewitness to the crime and had turned hostile.  

22. Jai Pal Singh stated in his examination in chief as  

follows:

“When we were still going, Gudu also came from behind  and gave me beatings with the help of a wooden stick and  threw me aside in the bushes. Gudu then also gave  beatings to Dalip Singh and threw him in the bushes. I  alone went to Sheetal Singh and informed him about the  occurrence. Sheetal Singh came with me to the scene of  occurrence and on search, we found Dalip Singh lying in  injured condition at the place where quarrel had taken  place outside the house of Sheetal Singh. Dalip Singh  had sustained injuries on his head, which was bleeding  and, therefore, we took him to Snowdon Hospital in an  ambulance, where he was declared as dead.”   

In his cross-examination, Jai Pal Singh stated as follows:

“After sustaining hurt at the place of occurrence, I have  fallen down to the depth of about 5 feet. I did not see  Gudu causing injuries to Dalip Singh, but I only noticed  him when he threw Dalip Singh near me in the bushes.  I  could not see Gudu while throwing Dalip Singh in the  bushes. When Dalip Singh fell down, his head had struck  against the ground.”

Crl. Appeal No.862 of 2008                                                                    Page 9 of 18

Page 10

Later during his cross-examination, it is recorded as follows:

“At this stage, the learned public prosecutor seeks  permission to cross-examine the witness on the ground  that the witness is suppressing the truth. Heard.  Keeping in view the substantial variation in the  statement of the witness recorded in the court and  recorded under Section 161 Cr. P.C. with regard to the  actual position of beatings.  Learned Public Prosecutor is  permitted to cross-examine the witness.

xxxxx Cross-examination  xxxxx (by learned P.P.)

“My statement was recorded by the police. I had not seen  the accused Gudu giving beatings to Dalip Singh with  any thing and I also did not see the accused Gudu  throwing Dalip Singh in the bushes. (Confronted with  portion A to A with police statement of the witness Ext.  PB, wherein it is so recorded). I did not state this to the  police. It is incorrect to suggest that I have deposed  falsely today in collusion with the accused.”

23. The law on the treatment of the evidence of a hostile  

witness is that the evidence of such a witness need not be  

completely rejected only because he has turned hostile. The  

Court must, however, be circumspect in accepting his  

testimony and, to the extent possible, look for its  

corroboration.

24. In Karuppanna Thevar v. State of T.N., (1976) 1 SCC  

31 this Court held that the testimony of a hostile witness may  

Crl. Appeal No.862 of 2008                                                                    Page 10 of 18

Page 11

not be rejected outright “but the court has at least to be aware  

that, prima facie a witness who makes different statements at  

different times has no regard for truth. The court should  

therefore be slow to act on the testimony of such a witness  

and, normally, it should look for corroboration to his  

evidence.”  

25. Similarly, in Bhagwan Singh v. State of Haryana,  

(1976) 1 SCC 389 this Court held:

“But the fact that the court gave permission to the  prosecutor to cross-examine his own witness, thus  characterising him as, what is described as a hostile  witness, does not completely efface his evidence. The  evidence remains admissible in the trial and there is no  legal bar to base a conviction upon his testimony if  corroborated by other reliable evidence.”

(Incidentally this passage is incorrectly attributed to P.N.  Bhagwati, J in Rabindra Kumar Dey v. State of Orissa,  (1976) 4 SCC 23.  It should be correctly attributed to P.K.  Goswami, J).

26. These basic principles have been reiterated recently in  

Bhajju v. State of M.P., (2012) 4 SCC 327 and Ramesh  

Harijan v. State of U.P., (2012) 5 SCC 777. In Bhajju one of  

us (Swatanter Kumar, J) held for the Court:

Crl. Appeal No.862 of 2008                                                                    Page 11 of 18

Page 12

“The view that the evidence of the witness who has been  called and cross-examined by the party with the leave of  the court, cannot be believed or disbelieved in part and  has to be excluded altogether, is not the correct  exposition of law.”

27. If we consider the totality of the evidence of Jai Pal Singh,  

it is clear that he categorically stated that the appellant  

attacked him with a wooden stick like a thapi and pushed him  

in the bushes. To this extent the evidence of Jai Pal Singh is  

quite clear and he did not recant from this. Then he goes on to  

say that though he noticed the appellant, he did not actually  

see him beat Dalip Singh or throw him in the bushes. But the  

fact is that Dalip Singh was beaten by someone and pushed  

into the bushes. There is nothing to suggest the presence of  

any third person. The presence of the appellant (and none  

other) at the scene of occurrence is not in doubt.  

28. The medical evidence shows that injuries on Jai Pal  

Singh could have been caused by a blunt wooden stick such  

as a thapi.  Again, to this extent, the evidence of Jai Pal Singh  

is consistent. As per the medical evidence, the injuries on  

Dalip Singh could also have been caused by a similar wooden  

Crl. Appeal No.862 of 2008                                                                    Page 12 of 18

Page 13

stick or thapi. Under these circumstances, the conclusion is  

inescapable that none other than the appellant attacked Jai  

Pal Singh and Dalip Singh and inflicted injuries on them with  

a thapi.  

29. To this, we may add the conduct of the appellant, which  

leaves a lot to be desired.  

30. The Trial Judge and the High Court found it suspicious  

(and so do we) that on the intervening night of 12th and 13th  

November, 2003 the appellant should leave Taradevi and go to  

his village at Rohru. According to the statement of the  

appellant under Section 313 of the Cr.P.C. he had left Taradevi  

before the incident took place. This may or may not be true,  

but it is certainly relevant for appreciating his conduct. In this  

context, it would be worthwhile to refer to Section 8 of the  

Evidence Act, 1872 which makes relevant the conduct of the  

appellant subsequent to the crime.

31. Similarly, the recovery of a bloodstained pajama from the  

appellant’s house adds to the circumstances that call for an  

explanation from the appellant. However, no explanation has  

been forthcoming on either issue.

Crl. Appeal No.862 of 2008                                                                    Page 13 of 18

Page 14

32. No doubt, proof cannot be substituted by robust  

suspicion. But if all the facts and circumstances point to only  

one conclusion, it is difficult to ignore them and even in a case  

of circumstantial evidence, it is possible to secure a conviction.  

The present case is much stronger since there is an  

eyewitness to the incident and both the Trial Court and the  

High Court accepted the version of events given by Jai Pal  

Singh. In such circumstances, we should not normally  

interfere with the conclusion expressed concurrently by the  

Trial Court and the High Court. We have recently expressed  

this view in Ramachandran v. State of Kerala 2012 (10)  

SCALE 592 and it need not be repeated. Interference is,  

however, permissible in exceptional circumstances – but we do  

not find the circumstances of this case to be exceptional.  

33. We are, therefore, prepared to agree with the Trial Court  

and the High Court that Jai Pal Singh was a credible witness  

and that his testimony to the extent that it implicates the  

appellant should be accepted.  

34. We are in agreement with the Trial Judge that the  

insinuation that Jai Pal Singh committed the crime was too  

Crl. Appeal No.862 of 2008                                                                    Page 14 of 18

Page 15

nebulous. The family dispute between Jai Pal Singh and Dalip  

Singh was obviously not particularly serious since Dalip Singh  

had ventured to stay with Jai Pal Singh and his brother  

Sheetal Singh in the same rented accommodation for about  

one year. In any event, this was not even the case set up by  

the appellant in his statement under Section 313 of the  

Cr.P.C.  

Intention to kill:

35. The next question to be considered is whether the  

appellant had the intention to kill Dalip Singh. Here we have  

some difficulty in accepting the understanding of the events as  

narrated by the Trial Court and the High Court.  

36. It is true that the appellant caused multiple injuries on  

Dalip Singh, but it is difficult to infer from this that the  

appellant intended to kill him. His intention seems to have  

been to injure Jai Pal Singh and to severely injure Dalip Singh  

and after beating them up with a thapi, he pushed them into  

the bushes and walked away. It cannot be imagined that his  

intention was to injure Jai Pal Singh but kill Dalip Singh – he  

would be leaving behind Jai Pal Singh as an eyewitness.

Crl. Appeal No.862 of 2008                                                                    Page 15 of 18

Page 16

37. It seems to us that the conduct of Jai Pal Singh also  

points to the intentions of the appellant. Jai Pal Singh did not  

expect the assault on Dalip Singh to be fatal, otherwise he  

would have tended to the needs of the victim rather than have  

gone to call Sheetal Singh.  That the delay in attending to  

Dalip Singh may have eventually led to his death is another  

matter altogether, but the attack was not so severe (in the  

estimation of Jai Pal Singh) as to have imminently caused the  

death of Dalip Singh.  

38. Even though the situation is pregnant with hypotheses, it  

is quite clear that the appellant had no intention to kill Dalip  

Singh and even the rejection of the hypotheses cannot lead to  

the conclusion that the appellant intended to kill Dalip Singh.  

39. However, the nature and number of injuries and their  

location (the skull) as well as the “weapon”  used (a small  

wooden cricket bat) lead us to conclude that to a reasonable  

person, an attack of the nature launched by the appellant on  

Dalip Singh could cause his death. While it may be difficult to  

delve into the mind of the attacker to decode his intentions,  

Crl. Appeal No.862 of 2008                                                                    Page 16 of 18

Page 17

knowledge of the consequences of his actions can certainly be  

attributed to him.  

40. Accordingly, we are of the opinion that the appellant had  

knowledge that his actions are likely to cause the death of  

Dalip Singh. He would, therefore, be guilty of culpable  

homicide not amounting to murder and liable to be sentenced  

under the second part of Section 304 of the IPC.  

Conclusion :

41. Under the circumstances, we partly allow this appeal and  

set aside the conviction of the appellant for the murder of  

Dalip Singh but convict him of an offence punishable under  

the second part of Section 304 of the IPC.  

42. We have been informed that the appellant has already  

undergone over eight years of actual imprisonment and almost  

eleven years including remissions earned. Under the  

circumstances, we sentence him to imprisonment for the  

period already undergone.

Crl. Appeal No.862 of 2008                                                                    Page 17 of 18

Page 18

43. The appeal is disposed of on the above terms.

……….…………………….. J.   (Swatanter Kumar)

….….…………………….. J.   (Madan B. Lokur)

New Delhi; December 4, 2012

Crl. Appeal No.862 of 2008                                                                    Page 18 of 18