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Tuesday, July 7, 2015

We are not inclined to reject the testimony of PW 3 on the ground that his conduct had been unusual at the place of the occurrence, he having kept himself aloof therefrom instead of attempting to save his brothers who were under murderous attack by a group of assailants. As rightly observed by the courts below that, on being confronted with such an unforeseen and sudden situation, it is quite likely that individuals would react differently and if the PW 3, being petrified by such unexpected turn of events, being in the grip of fear and alarm, as a matter of reflex hid himself from the assailants, his version of the episode, in our estimate, is not liable to be discarded as a whole as the same is otherwise cogent, coherent and compact. 18. As the eventual objective of any judicial scrutiny is to unravel the truth by separating the grain from the chaff, we are of the opinion that in the face of clinching evidence on record, establishing the culpability of the appellants, their conviction and sentence as recorded by the courts below does not call for any interference at this end. The participation in the gory brutal attack of the appellants with the lethal weapons resulting in death of two persons Ashok and Rohtash is proved beyond reasonable doubt not only by the testimony of PW 3, the eyewitness, but also by other evidence collected in course of the investigation and adduced at the trial. On an overall appreciation of the materials on record, we find ourselves in complete agreement with the findings recorded by the courts below. 19. In the wake of the above, the impugned judgment and order of the High Court sustaining the decision of the learned trial court is affirmed. The appeal lacks in merits and is thus dismissed.

                                              {REPORTABLE}

                   IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO(s) 1590/2011



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

                            VERSUS

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


                       JUDGMENT

AMITAVA ROY, J.

      Having failed to secure redress against their conviction under section
302 of  the  Indian  Penal  Code  (for  short  hereinafter  referred  to  as
IPC/Code) read with Section 34 of the Code,  and the sentence  consequential
thereto, from the High Court of  Punjab  and  Haryana,  at  Chandigarh,  the
appellants seek the remedial intervention of this  Court.  By  the  impugned
judgment and order dated 28.7.2010 rendered in Criminal  Appeal  No.  261-DB
of 2003 and Criminal Revision Petitioner No. 1560 of 2003,  the  High  Court
has sustained the  decision  of  the  Additional  Sessions  Judge  (Ad-hoc),
Hissar passed in Sessions Case No.  120/SC  on  06.02.2003,  sentencing  the
appellants, following their conviction as above, to suffer imprisonment  for
life and to pay a fine of Rs.500/- each,  in  default,  to  undergo  further
rigorous imprisonment for six months.  As alongwith  the  appellants,  three
others, namely, Devi Lal, Chander Singh  and  Vidyadhar  alias  Didaru  were
also tried but were acquitted, the  Complainant  /  Informant  Bajrang  Bali
being aggrieved had filed Criminal  Revision  Petition  No.  1560  of  2003,
which was dismissed.  The High Court thus, in toto sustained the verdict  of
the learned trial court on both counts.

2.    We have heard Mr. P. N. Kush, the learned counsel for  the  appellants
and Mr. Arun Kumar, the learned counsel for the Respondent.

3.    The prosecution case is traceable  to  the  First  Information  Report
(for short hereinafter referred to as FIR) recorded on  25.8.2001  at  12.15
PM, on the version made by the informant Bajrang Bali to the effect that  on
23.8.2001, the aforenamed Devi Lal, Chander Singh,  Vidyadhar  alias  Didaru
and Daya Ram, sons of Sahi Ram, residents of the  same  village  had  abused
his brother Ashok and had threatened to kill him.  On being  informed  about
this threat on the next day i.e. 24.8.2001, the  informant  had  accompanied
his brothers Rohtash and Ashok to their field  at  about  8.30/09.00  PM  to
look after the crops. According to the informant, as soon  as  they  reached
the field, Vidyadhar alias Didaru, Chander Singh, Daya Ram, Madan  and  Devi
Lal sons of Sahi Ram and Hans Raj and Rohtash sons of Ami  Lal  all  of  the
same village came out from behind the standing Bajara  crop  thereat,  being
armed with lathi, jailly and gandasa and unleashed a series of  assaults  on
Rohtash and Ashok.  The  informant  alleged  that  the  assailants  had  hid
themselves in the cover of the Bajara Crops and though  he  had  accompanied
his brothers, he was behind them by 10/12 paces. He stated  that  on  seeing
the attack, he concealed himself in the bushes nearby but in  the  moonlight
he could recognise all the seven  assailants.  He  mentioned  that  all  the
seven  persons  inflicted  injuries  on  his  brothers  with  their  weapons
whereupon the injured fell on the ground. According to the  informant,  Daya
Ram  thereafter  fetched  a  cart  (peter  rehra)  parked  nearby  and   the
assailants removed his brothers from the field. The  informant  stated  that
out of fear and alarm he kept himself in the hiding  for  the  rest  of  the
night and only at the break of  dawn,  he  went  back  to  the  village  and
disclosed the above episode to  his  cousin-brother  Sarwan  and  thereafter
embarked on a search for the  injured.  He  stated  that  after  a  thorough
search, they could detect the dead bodies of  Rohtash  and  Ashok  lying  in
front of the door of the Dhani (small hutment adjacent to  the  agricultural
field to enable the occupant to keep a vigil on the crops)of Sahi  Ram,  the
father of the appellants, Daya Ram and Madan. The  informant  after  waiting
there in inconsolable anguish and pain, left the spot to inform the  Police,
by leaving Sarwan Kumar to be on guard. He met the SHO,  PS  Adamur  at  the
bus stand at Darauli, and disclosed the whole incident.  His  statement  was
recorded by the  said  officer  and  after  endorsing  an  observation  that
offences under Section 148/149/302/201 IPC  had  been  committed,  forwarded
the report to the  police  station  Adampur  whereupon  FIR  No.  207  dated
20.8.2001 was registered. Investigation followed,  in  course  whereof,  the
appellants alongwith Devi Lal, Chander Singh, Vidyadhar  alias  Didaru  were
arrested and acting on their statements of disclosure, their weapons of  the
alleged assault i.e. jailly, kulhari/Gandasa and lathis were  recovered  and
seized. The Investigating Officer also visited the site,  performed  inquest
over the dead bodies, prepared a report and despatched the bodies for  post-
mortem examination. He drew a site-plan, collected samples of  blood-stained
earth, seized amongst others a bucket, a   chappal  (Hawai)  from  near  the
dead body of the Rohtash and one pair of  leather  slippers  from  near  the
dead body of Ashok. The Investigating Officer prepared  recovery  memos  and
sealed the seized items. He also recorded the statement  inter-alia  of  the
informant, Bajrang  Bali  and  others  and  eventually  laid  a  chargesheet
against all the seven persons under the above provisions of the  Code.   The
matter was eventually committed to the  Court  of  the  Additional  Sessions
Judge (Ad-hoc), Hissar and charge  under  Section  302/201/148/149  IPC  was
framed against all the seven persons  including  the  appellants,  to  which
they pleaded “not guilty”.

4.    At the trial, the prosecution  examined  several  witnesses  including
the informant, Bajrang Bali, PW 3, and the doctors  who  had  conducted  the
post-mortem examination of the dead bodies and had examined  the  appellants
Madan Lal and Daya Ram.  The prosecution  also  proved  the  report  of  the
Forensic Science Laboratory, Haryana on the samples of earth as well as  the
bucket  and  weapons  of   assault   forwarded   to   it   for   serological
investigation. It  proved  as  well  the  post-mortem  and  medical  reports
alongwith disclosure statements and got  identified  through  witnesses  the
seized weapons and other articles. After the closure of the evidence of  the
prosecution, the accused persons were examined under Section 313 Cr.P.C.  in
course whereof all of them pleaded to be  innocent.   One  witness,  namely,
Rati Ram H.C. was examined in defence.

5.    The learned trial court on a consideration of the evidence  on  record
and after analyzing the rival contentions, convicted  the  appellants  under
Section 302 IPC read with Section 34 of  the  Code  and  sentenced  them  as
above.  However, being of the view that the complicity of  the  other  three
accused persons, namely, Devi Lal, Chander Singh and Vidyadhar alias  Didaru
was doubtful, as the lathis otherwise identified to have been used  by  them
did not wear blood-stains, it acquitted them on the  benefit  of  doubt.  It
rejected the defence plea of delay in lodging of the FIR, having  regard  to
the  developments  prior  thereto.   It  dismissed  the  challenge  to   the
trustworthiness  of  the  informant,  rejecting  the  defence  plea  of  his
indifferent conduct as  a  brother  when  the  deceased  were  being  openly
assaulted in his presence. According to the learned trial court, it was  not
unusual for individuals to react differently in such situations and  was  of
the view that there had been no undue  delay  in  filing  of  the  FIR.  The
learned trial  court  also  discarded  the  defence  plea  of  inconsistency
between the injuries  on  the  dead  bodies  with  the  weapons  of  assault
allegedly used by observing that  the  same  could  be  inflicted  by  blunt
weapons like lathi or  jailly/kulhari,  if  used  by  the  blunt  side.  The
narration of the incident as made by  the  informant,  PW  3  was  otherwise
accepted to be credible except to the extent of participation of  the  three
accused persons, namely, Devi  Lal,  Chander  Singh  and  Vidyadhar  in  the
assaults. The learned trial court was of the  view  that  the  plea  of  the
defence that  the  informant  as  the  eye-witness  could  not  specify  the
individual acts of assault, did not have any fatal bearing on  the  case  of
the prosecution and returned a finding of guilt against  the  appellants  on
an exhaustive analysis of the evidence on record, by taking note  inter-alia
of the factum of seizure of their weapons of assault  i.e.  jailly,  gandasa
and lathis on their disclosures and also the report of the Forensic  Science
Laboratory, Haryana detecting human blood thereon.  The  sentence  as  above
was  awarded  to  the  appellants  after  according  to  them,  hearing   in
connection therewith. The High Court concurred with the learned trial  court
on all the above aspects and maintained the conviction and sentence.

6.    Before adverting to the competing assertions, it would be  appropriate
to notice the relevant evidence in brief.  The informant Bajrang Bali PW  3,
who claimed himself to be the eye-witness of the incident,  is  the  brother
of the deceased persons. He stated on oath, that he had accompanied them  to
the field in the fateful night of 24.8.2001. In his testimony, he  mentioned
about the incident of threat extended by Devi Lal, Chander Singh,  Vidyadhar
alias Didaru and  Daya  Ram  to  his  brothers  in  the  previous  night  of
23.8.2001 and reiterated his version as made in the  FIR  that  on  reaching
the field at about 8/8.30 pm on 24.8.2001, the appellants and  three  others
(since  acquitted)  did  all  together,  inflict  several  assaults  on  his
brothers (deceased), after emerging from behind the Bajara Crop standing  at
the place of occurrence. He mentioned that, the appellant  Madan  was  armed
with jailly, while Daya Ram was with a kulhari.  He testified,  that  others
were armed with lathis. He said that, he was behind his  brothers  by  10/15
paces and seeing the sudden attack, he out of panic, hid himself behind  the
nearby bush to save his life. He stated, that it was  a  moonlit  night  and
therefore, he could identify all the accused persons.  According to him,  as
the injured fell on the ground after being assaulted,  Daya  Ram  brought  a
‘peter rehra’ whereafter, all of them lifted his  injured  brothers  thereon
and left the field.  The witness stated, that out of fear, he did not  leave
the field and it was only in the  next  morning  that  he  returned  to  his
village, and informed his cousin-brother Sarwan about the incident and  then
both set off to search the injured.  The  witness  stated,  that  eventually
they could detect the dead bodies of the two brothers near  the  ‘dhani’  of
Sahi Ram.  He thereafter informed the  police,  who  reached  the  place  of
occurrence and apart from conducting the inquest on the  dead  bodies,  took
other steps including seizure of a bucket, chappal  etc.  The  witness  also
identified the accused persons in  court  and  amongst  others  the  bucket,
seized from the place of occurrence.

7.    In cross-examination, PW 3 stated, that the  dhani  of  Sahi  Ram  was
about fifteen killas from the place of occurrence. To a  suggestion  put  to
him by the defence, he stated that it was  correct  that  the  incident  had
taken place 10/12 paces away from him. He however admitted, that it was  not
possible to give the details of the assaults, by the accused persons on  his
brothers. He reiterated that he did not come out or intervene out of fear.

8.    PW 1  Dr.  Krishan  Kumar  stated,  to  have  examined  Madan  Lal  on
25.8.2001 and to have detected a lacerated wound  and  an  abrasion  on  his
body as detailed in his testimony.  He stated that the injuries which  could
be caused by a blunt weapon, were also possible by a  fall  on  the  ground.
According to him the injuries were six hours old.

9.    This witness also stated that on 27.8.2001, he had examined Daya  Ram,
who complained of pain in his left thumb, index  finger  and  the  adjoining
part of the  hand.  The  witness  stated  that  x-ray  did  not  reveal  any
fracture.   The  corresponding  reports  were  proved  by  him.   In  cross-
examination, this witness reiterated that the  injuries  suffered  by  Madan
Lal could be possible by a fall from a height of four to five feet.

10.   In his evidence, Dr Arun  Gupta  who  had  performed  the  post-mortem
examination on the dead bodies of the Ashok  and  Rohtash  on  26.8.2001  at
about 9.50/10.15 AM, stated to have detected the following injuries.

Ashok:


   1. Lacerated wound about 1.5 cm x 5 cm on the anterior surface  of  right
      leg in middle. Clotted blood seen.
   2. Contusion with deformities was seen on upper part of left  hip  joint.
      On dissection injury No. 2 the neck of left femur  was  fractured  and
      clotted blood seen.

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



Rohtash:


   1. Lacerated wound about 3 cm x 1 cm on the left side of  the  head  just
      above the eye brow.
   2. Lacerated wound about 4 cm x 5 cm obliquely  lying  on  the  occipital
      bone of the skull.  On dissection of the  injury  occipital  bone  was
      fractured underlying brain tissues were injured. Clotted blood seen.



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



10.1        This witness opined that in case of Ashok, the  cause  of  death
was multiple injuries and injury to the vital organ of the body i.e.  brain.
According to this witness, the cause of death of Rohtash was  due  to  shock
and haemorrhage and injuries to  vital  organs  of  the  body.   The  doctor
stated, in categorical terms, that the injuries were ante-mortem  in  nature
and sufficient to cause death in the normal course.  According to  him,  the
time-lag between death and the  post-mortem  examination  was  approximately
36/37 hours and death could have occurred on 24.8.2001 between 8.00 to  9.00
pm .

11.   PW 9 Umed Singh, who was on 25.8.2001 posted as SHO,  PS  Adampur  and
to whom the incident was first lodged by Bajrang Bali  PW  3,  detailed  the
steps taken by him in course of the investigation.  While reiterating  that,
the information first in time, about the incident, was lodged  with  him  by
the informant, while he was stationed at bus stand,  Darauli  in  connection
with patrol duty and that after recording the same he had  forwarded  it  to
the police station for registration whereafter formal FIR  was  recorded  as
Ex. P – 24, he deposed  that,  he  went  to  the  spot  and  amongst  others
conducted inquest on the dead bodies and on completion  of  the  formalities
despatched the same for post-mortem examination.  He also prepared  a  site-
plan, made seizures of the bloodstained earth,  chappal/sleeper  lying  near
the dead bodies, a bucket smeared with blood,  and  packed  and  sealed  the
same and deposited all those  with  the  police  station.  This  witness  in
categorical terms, referred to the statements of disclosures,  made  by  the
appellants Rohtash, Devi Lal and Hans Raj leading to the recovery  of  their
lathis concealed in places mentioned by them and proved the  statements  and
also the  recovery  memos  in  connection  therewith.  The  disclosures  and
recovery were during 28.8.2001  and  29.8.2001.  The  witness  also  deposed
about the production of accused persons Chander Singh  and  Vidyadhar  alias
Didaru in  the  police  station  on  23.10.2001  along  with  their  lathis.
Similarly on the basis of the disclosure statements Ex. P-42  and  Ex.  P-43
made  by  the  appellant  Madan  Lal  and  Daya  Ram,  one  jailly  and  one
kulhari/gandasa were recovered from the fields near the dhani  of  Sahi  Ram
which were accordingly packed and sealed. The witness stated as  well,  that
the seized articles/weapons  of  assault  were  forwarded  to  the  Forensic
Science Laboratory, Haryana for serological examination and on  the  receipt
of the report and on a consideration of the materials  collected  in  course
of the investigation, he submitted the chargesheet.

12.    In  cross-examination,  the  Investigating  Officer  amongst   others
reiterated that dhani of Sahi Ram was the place from where the  dead  bodies
were recovered.  He deposed further that after the registration of the  FIR,
he reached the place of occurrence, at about 1.30 PM  and  after  exhausting
all steps, forwarded the dead bodies to the hospital at about 4.30 PM.

13.   The report of the Forensic Science Laboratory, Haryana referred to  in
course of the arguments, does indicate that samples of  bloodstained  earth,
one metal bucket, one kulhari, one jailly, one wooden lathi and  one  bamboo
lathi had been forwarded for examination.   The  sample  of  earth,  bucket,
jailly  and  the  lathis  were  subjected  to  serological  analysis   which
confirmed human blood on jailly. However, vis-à-vis the  earth  and  bucket,
the blood spot had disintegrated.

14.   The learned counsel for the appellants  has  strenuously  argued  that
the prosecution having miserably failed to adduce any cogent and  convincing
evidence in support of the charge, they  (appellants)  ought  to  have  been
acquitted.  According to  the  learned  counsel,  the  prosecution  case  is
liable to be rejected on the ground of unexplained delay in the  lodging  of
the FIR.  Further the version of PW  3  being  wholly  unreliable,  on  that
count as well, he being the only witness, the courts  below  ought  to  have
rejected the charge against the  appellants,  he  urged.   Mr.  P.  N.  Kush
argued as well that PW 3 being the sole eye-witness, his testimony ought  to
have been scrutinized with all rigour and as his version  does  unmistakably
fail such test, conviction of the appellants  should  not  have  been  based
thereon.  Without  prejudice  to  these  pleas,  the  learned  counsel,  has
insisted that the acquittal of three of the seven  accused  persons  charged
with the same offence, did destroy the substratum of  the  prosecution  case
and that therefore, the appellants are entitled to be acquitted.

15.   As against this, the counsel for the Respondent has  maintained,  that
in view of the evidence disclosing the intervening  events  leading  to  the
filing of the FIR, the demur of delay  in  connection  therewith  is  wholly
misplaced.  He dismissed as well the criticism of the evidence of the  PW  3
and asserted that this witness was  wholly  reliable  and  in  view  of  the
detailed description of the  incident,  the  conviction  of  the  appellants
based thereon is unassailable.  While contending that the  medical  evidence
on record and the ocular narration of the  incident  by  PW  3  are  clearly
consistent with each other, the learned counsel has argued, that the  charge
against  appellants  is  proved  beyond  reasonable  doubt   and   thus   no
interference with their conviction and sentence is warranted.  According  to
the learned  counsel,  the  recovery  of  the  weapons  of  assault  on  the
disclosures made by the appellants and the report of  the  Forensic  Science
Laboratory, Haryana did corroborate their complicity and thus they had  been
rightly convicted and sentenced by the courts below.

16.   We have duly considered the evidence on record and also the  arguments
based thereon. The case witnesses an incident of double murder of  which  PW
3 has been cited to be the only eye-witness.  It  is  a  matter  of  record,
that the deceased persons were the  brothers  of  this  witness  PW  3,  who
coincidently  is  also  the  informant.  The  courts  below  on  a   correct
assessment of his evidence, had concluded that he indeed was present at  the
place of occurrence at the time of the incident.  Though  the  participation
of the three of the accused persons, namely, Devi  Lal,  Chander  Singh  and
Vidyadhar alias Didaru was not accepted due to absence of any blood mark  in
the lathis said to have been wielded by them, in our opinion in the face  of
the overwhelming and impregnable testimony of this witness on  the  entirety
of the events relatable to the incident, it is not possible  to  extend  any
benefit of doubt to the appellants on that count. Suffice it to state,  that
the ocular account of the incident  presented  by  the  PW  3  has  been  in
graphic details. He did not vacillate  in  identifying  the  appellants.  He
also could relate the  weapons  of  assault  used  by  them.   The  injuries
sustained by the deceased in course of the incident and  those  detected  in
the post-mortem examination are compatible with each other.  The seizure  of
the weapons of assault vis-à-vis the appellants based  on  their  statements
of disclosure and the  report  of  the  Forensic  Science  Laboratory,  also
establish  their  irrefutable  nexus  with  the  crime.   The  plea  of  the
decomposition of the dead bodies to nihilate the medical opinion also  lacks
persuasion.  Noticeably, as per the testimony of the doctor  performing  the
post-mortem examination, the time of death does tally with the  one  of  the
incident.

17.   We are not inclined to reject the testimony of  PW  3  on  the  ground
that his conduct had been unusual at the place of the occurrence, he  having
kept himself aloof therefrom instead of attempting to save his brothers  who
were under murderous attack by a group of assailants.  As  rightly  observed
by the courts below that, on being confronted with such  an  unforeseen  and
sudden  situation,  it  is  quite  likely  that  individuals   would   react
differently and if the PW 3, being petrified  by  such  unexpected  turn  of
events, being in the grip of fear and alarm,  as  a  matter  of  reflex  hid
himself from the assailants, his version of the episode,  in  our  estimate,
is not liable to be discarded as a whole as the same  is  otherwise  cogent,
coherent and compact.

18.   As the eventual objective of any judicial scrutiny is to  unravel  the
truth by separating the grain from the chaff, we are of the opinion that  in
the face of clinching evidence on record, establishing  the  culpability  of
the appellants, their conviction and sentence  as  recorded  by  the  courts
below does not call for any interference at this end. The  participation  in
the gory brutal attack of the appellants with the lethal  weapons  resulting
in death of two persons Ashok and Rohtash is proved beyond reasonable  doubt
not only by the testimony of  PW  3,  the  eyewitness,  but  also  by  other
evidence collected in course of the investigation and adduced at the  trial.
 On an overall appreciation of the materials on record,  we  find  ourselves
in complete agreement with the findings recorded by the courts below.

19.   In the wake of the above, the impugned judgment and order of the  High
Court sustaining the decision of the learned trial court  is  affirmed.  The
appeal lacks in merits and is thus dismissed.




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




                                             ……….…………………J.
                                             (Amitava Roy)


New Delhi,

Date: 02 July, 2015





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