Jitender Kumar Vs State of Haryana

08 May 2012
Supreme Court
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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.

Page 27

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

Page 28

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

Page 29

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

Page 30

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

Page 31

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

Page 32

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]

Page 33

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

Page 34

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

Page 35

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.

Page 36

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

Page 37

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

Page 38

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.

Page 39

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

Page 40

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.

Page 41

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

Page 42

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

Page 43

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