Hem Raj And Others v. State Of Haryana .

P. Venkatarama Reddi, J.— The four appellants herein who are brothers faced trial before the Additional Sessions Judge I, Jind for murdering one Hemant Kumar at a central place in Safidon town, on the night of 3-4-1996 at about 8.45 p.m They were convicted under Section 302 IPC and sentenced to life imprisonment. The High Court dismissed the appeals filed by the accused. Hence, these appeals by special leave.

2. The following is a brief account of the prosecution case and other relevant facts:

On the night of 3-4-1996, all the accused attacked Hemant Kumar at Channi Chowk and stabbed him with knives. As a result of stabbing, he received six injuries out of which two were in the chest region. The fatal assault by the four accused was seen by the younger brother of deceased PW 4, who was returning home from his watch repair shop. On being informed by a passer-by on a bicycle, PW 4 rushed to the spot and having noticed from a distance of 30 ft or so that the attack on the deceased was going on, he raised an alarm. Hearing the cries, PW 5, another relation of the deceased and one Kapur Singh who were at a nearby sweet shop joined PW 4. On seeing all of them, the accused fled. According to PWs 4 and 5, three accused carried knives and the accused, namely, Kala carried “neja” (which resembles knife). The injured person fell down on the spot and he was taken on a cot to Civil Hospital, Safidon by the aforementioned three persons. At the hospital, the doctor (not examined) declared him dead. The same doctor sent a rucca (memo) to Police Station Safidon at about 9.50 p.m The Sub-Inspector of Police, PW 9 was going on a jeep by the side of the hospital. The Ward Boy of the hospital handed over the rucca to him, PW 9 then came to the hospital and after some time, recorded the statement of PW 4 at the hospital. He sent the same to the police station, on the basis of which an FIR was recorded at 11.30 p.m, for an offence under Section 302 read with Section 34 IPC. Copy was sent to the Judicial Magistrate through a constable and it reached him at about 1.00 a.m In the said statement given to the police, PW 4 named the four accused as the assailants. PW 9 held the inquest over the dead body in the hospital and sent the dead body for post-mortem. The medical officer attached to the General Hospital, Jind did the post-mortem examination at 9.15 a.m on 4-4-1996 and prepared the post-mortem report which is Ext. PA. PW 9 could go to the scene of occurrence at about 2.30 a.m The delay was for the reason that he tried to stop a reprisal attack by a mob to set fire to the houses of the accused. He prepared a site plan. One Gobind Das produced all the four accused persons involved in the offence in the night of 4-4-1996 before PW 9 while he was at Court Road Chowk. They were arrested and immediately thereafter, the accused Kala produced a knife (Ext. P-1). The total length of that knife was 8 inches inclusive of 4″ of handle and the width of the blade was about 0.2 to 0.3 cm. PW 10 Inspector of Police, CIA, was entrusted with investigation from 6-4-1996 onwards. He recorded the statements of some witnesses. He applied for judicial remand of the arrested accused. On the same day, PW 10 took the knife seized from Kala to the medical officer, PW 1, who endorsed on the post-mortem report that the injuries could be inflicted by that knife. On the basis of his investigation, PW 10 found that the accused other than Kala were innocent. Therefore, in the report under Section 173 CrPC, only Kala was shown as the accused for the offence punishable under Section 302 IPC. However, all the four accused persons were committed to Sessions. After examining the record, the learned Judge found that there was a prima facie case to proceed against all the accused. Accordingly, the charge was framed against all the accused under Section 302 IPC. Curiously, Section 34 was omitted in the charge. On the basis of the evidence of the eyewitnesses, namely, PWs 4 and 5, the accused were convicted under Section 302 IPC.

3. The motive of the accused is traced to an incident which had happened one-and-a-half years earlier when the deceased Hemant Kumar identified the accused as the persons involved in the kidnapping of the daughter of one Niranjan Das. However, the motive was held to be not proved by the trial court. The High Court did not hold to the contra.

4. The details of post-mortem examination may be noticed at this juncture. The following injuries were found on the body of the deceased:

(i) Spindle-shaped incised wound on left side of chest just lateral to left nipple 1.5 cm × 1 cm × 4 cm. The wound cut through skin, costal muscles, corresponding cut in pleura was present.

(ii) Incised wound (spindle-shaped) 3 × 1 × 7 cm on the left side of chest 5 cm below Injury (i) longitudinally placed, wound cut through shirt, banian, costal muscles, 6th and 7th intercostal space, left lung.

(iii) Incised wound (spindle-shaped) 2.5 × 1 cm × 6 cm obliquely placed on left side of abdomen 5 cm below the costal margin. The wound cut through skin muscle, peritoneal membrane and a cut of 1.5 × 1/2 × 3/4th of cm on spleen was present.

(iv) Incised wound 4 cm × 1.5 cm muscle-deep on the posterior lateral aspect of left forearm.

(v) Incised spindle-shaped wound on upper thigh of the size of 3 × 1.5 cm × 1 cm. 15 cm below iliac crest.

(vi) Incised wound 3 cm × 1.5 bone-deep on the palmar aspect of right thumb, bone was fractured.

5. The learned Senior Counsel for the appellant contended that it is a case of blind murder which might not have been witnessed by anybody and the version of PWs 4 and 5 — the alleged eyewitnesses and close relations of the deceased is unnatural and unbelievable. No explanation was forthcoming for not examining the independent witnesses who would have been available at the place of occurrence which is in a busy locality. The scene of offence has not been established beyond doubt and the time of occurrence, the time of recording the statement of PW 4 and the FIR and the time of death are all doubtful. Recovery of knife from the accused Kala is concocted, as held by the trial court. It is pointed out that the pattern of stab injuries received by the victim only on one side of the body shows that one or two persons would have inflicted injuries but not as many as four. In this context, it is pointed out that the second investigating officer, PW 10, after recording the statements of certain witnesses thought it fit to file the charge-sheet against one accused only, namely, Kala. However, by the order of the Sessions Judge, all the four were charged on the ground that they were named in the FIR. Finally it is submitted that in the absence of charge under Section 302 IPC read with Section 34, the conviction cannot be sustained under Section 302 simpliciter. It is then submitted that the offence does not in any case fall under Section 300 IPC.

6. The learned counsel appearing for the State as well as the learned Senior Counsel appearing for the informant PW 4 who has been allowed by this Court to intervene have countered the above arguments. It is contended by them that even in the absence of specific mention of Section 34 IPC in the charge, the conviction can still be sustained, that there is nothing to discredit the testimony of PW 4 or PW 5, that the arguments relating to antetiming of the FIR and the improbability of participation of as many as four accused are without substance. The injuries being sufficient in the ordinary course of nature to cause death, all accused are constructively liable for the offence of murder irrespective of which of the accused had inflicted the particular injury. It is submitted that the concurrent findings of both the courts cannot be legally faulted.

7. The prosecution case rests on the evidence of PWs 4 and 5 who are related to the deceased and who happened to be chance witnesses. Before scrutinising this evidence and testing its credibility, we have to advert to certain features in the prosecution case which make a dent on the reliability of the prosecution version. They are discussed hereunder:

Two days after the incident i.e on 5-4-1996, the investigation was entrusted to PW 10 Inspector, CIA at the instance of the Superintendent of Police, Jind. PW 10 stated in cross-examination that he inspected the place of occurrence and examined the persons staying near the place of occurrence and recorded the statements of such persons. The names of those five persons were given. Then he added that “from their statements, it was revealed that Hem Raj, Chunnilal and Omprakash were innocent”. He further stated that the investigation done by him was verified by DSP. Ultimately he filed the final report showing only Kala as the sole accused. However, as already noticed, all the four accused mentioned in the FIR were committed to Sessions and the Sessions Judge framed charge against all of them under Section 302. PW 10 did not choose to give all the relevant details of his investigation. However, the version of this investigating officer itself casts a cloud on the reliability of the prosecution case as unfolded by PWs 4 and 5 that four accused were involved.

8. The fact that no independent witness — though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case having regard to the indisputable facts of this case. Amongst the independent witnesses, Kapur Singh was one, who was very much in the know of things from the beginning. Kapur Singh is alleged to have been in the company of PW 5 at a sweet stall and both of them after hearing the cries joined PW 4 at Channi Chowk. He was one of those who kept the deceased on a cot and took the deceased to hospital. He was there in the hospital by the time the first IO, PW 9 went to the hospital. The evidence of the first IO reveals that the place of occurrence was pointed out to him by Kapur Singh. His statement was also recorded, though not immediately but later. The IO admitted that Kapur Singh was the eyewitness to the occurrence. In the FIR, he is referred to as the eyewitness along with PW 5. Kapur Singh was present in the court on 6-10-1997. The Additional Public Prosecutor “gave up” the examination of this witness stating that it was unnecessary. The trial court commented that he was won over by the accused and therefore he was not examined. There is no factual basis for this comment. The approach of the High Court is different. The High Court commented that his examination would only amount to “proliferation” of direct evidence. But, we are unable to endorse this view of the High Court. To put a seal of approval on the prosecution's omission to examine a material witness who is unrelated to the deceased and who is supposed to know every detail of the incident on the ground of “proliferation” of direct evidence is not a correct approach. The corroboration of the testimony of the related witnesses PWs 4 and 5 by a known independent eyewitness could have strengthened the prosecution case, especially when the incident took place in a public place.

9. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raises serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness Kapur Singh, would assume significance. This Court pointed out in Takhaji Hiraji v. Thakore Kubersing Chamansing (2001) 6 SCC 145:

“[I]f already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself — whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein.”

10. One more aspect which deserves notice is that at the alleged scene of offence, no bloodstains were found by the IO, though he made a search. The surmise of the High Court that the bloodstains at the public place would have disappeared in view of the time gap between the incident and the IO's inspection may not be correct, especially, in view of the fact that it is a metal road, as shown by PW 8 in the site plan and it was night-time. It is difficult to believe that traces of blood would fade out by the time of the visit of IO. This is one of the circumstances that has to be kept in mind while appreciating the prosecution case.

11. There is also a doubt regarding the time when the first information was received at the police station. The FIR was registered at 11.35 p.m on the basis of the statement of PW 4 recorded at 11.15 p.m at the hospital. However, as per the evidence of PW 6 (police constable), the information regarding the occurrence was received in the police station at 10.30 or 10.45 p.m and thereafter the SI, PW 9 accompanied by him and other police personnel went to the hospital. Apart from the fact that his evidence goes contrary to the version of PW 9 that on receiving the death intimation at the hospital gate, he went straight to the hospital and an hour later he recorded the statement of PW 4, a doubt is cast on the time and source of first information. If the information was received at the police station at 10.30 p.m why was it suppressed? What are the details of such information? These are the questions which remain unanswered.

12. No weapons were recovered from any of the accused. The recovery of knife from Kala at the time of surrender has been rightly disbelieved by the trial court.

13. All the above factors would not have assumed much importance if the evidence of PWs 4 and 5 could be accepted without raising an eyebrow. However, two views are possible on the point whether these persons had really witnessed the attack. There is every reason to think that PW 4, on being informed by a wayfarer, would have reached near the scene of offence almost after the attack was over. The possibility of seeing all the accused attacking the deceased with the knives and “neja” from a distance of 30 feet or more, that too, in the night-time, is rather doubtful. It is not safe to rely on his version that he had seen the accused with the particular weapons in their hands. In this context, it may be noted that PW 4 did not mention the distance from which he observed the attack. In the site plan drawn to scale, the distance of the spot from where PW 4 observed the incident was given as 30 ft. It was night-time — almost 9.00 p.m and most of the shops were closed, as seen from the evidence of PW 4. PW 4 or any other witness did not give any details about the lighting in the vicinity. However, from the site plan drawn by PW 8, there was a tubelight attached to the electrical pole situated at 20 feet distance. It would have been difficult for PW 4 at the night-time to notice each of the accused carrying a particular type of weapon, that too a small weapon like knife. But, PW 4 came forward with the version that all the accused except one, were carrying knives and the other was carrying “neja”. Thus he claims to have seen so clearly as to distinguish between a knife and “neja” at that juncture, when the attack would have been almost over and PW 4 was trying to evoke the attention of the people around. It is difficult to accept the version of PW 4 of having seen the weapon in the hand of each of the accused and the nature of the weapon. The reference to “neja” in particular appears to have been introduced for explaining the injuries on the body of the deceased. It seems to us that the picture given by PW 4, as if he had seen each of them with the knife or “neja” seems to be an embellishment developed with the idea of implicating all the brothers as the accused. His further version that PW 5 having heard his cries joined him and witnessed the attack seems to be a story invented for the purpose of introducing another eyewitness to corroborate his version. The possibility of PW 5 who was at a sweet shop hearing his cries, joining PW 4 and then observing the incident appears to be highly improbable. If PW 5 had already been there near Channi Chowk for purchasing sweets, he would have noticed the commotion caused by the attack and would have seen the assailants even before PW 4 arrived at the spot. But his story is different. Another factor which casts a doubt on the evidence of PWs 4 and 5 is that there were no bloodstains on their clothes, though allegedly, they placed the deceased on a cot and carried him to the hospital. Moreover, soon after his brother was declared dead, PW 4 did not go to the police station which was quite close to the hospital to lodge a report. That is not a natural course of conduct. It is on account of these doubtful features in the evidence of PW 4 that the factum of non-examination of independent witness, though available, assumes importance.

14. On a consideration of the evidence on record and the broad probabilities, we come to an irresistible inference that there is a reasonable possibility of some accused who were not involved in the attack having been convicted. It is difficult to sift the grain from the chaff. The High Court missed to notice certain crucial aspects adverted to above. It is a case in which benefit of doubt has to be accorded to the appellants. It is unnecessary to consider the question whether in the absence of charge under Section 34 IPC, the conviction can be sustained.

15. In the result, the appeals are allowed and the conviction and sentence of all the appellants is set aside.