[2023] 12 S.C.R. 138 : 2023 INSC 801
HARILAL ETC.
v.
STATE OF MADHYA PRADESH (NOW CHHATTISGARH)
(Criminal Appeal Nos. 2216-2217 of 2011)
SEPTEMBER 05, 2023
[J. B. PARDIWALA AND MANOJ MISRA*, JJ.]
Issue for consideration: Whether the High Court was justified
in upholding the order of the Sessions Judge convicting and
sentencing the appellants to imprisonment for life u/s 302 IPC.
Penal Code, 1860 – s. 302 – Murder – Conviction of the accused
u/s. 302 and sentenced to imprisonment for life by the courts
below – Ocular account of two prosecution witness that the
assault on the deceased took place at night, however, neither
of them lodged the FIR, rather, a named FIR lodged next day
by the village chowkidar of neighbouring village, even though
she was not an eye witness – Correctness:
Held: Trial court as well as the High Court while appreciating the
evidence did not properly address various aspects – Neither the
trial court nor the High Court carefully considered the deposition
of the village chowkidar who lodged a named FIR – Two eye
witness were chance witness – Testimony of one inconsistent with
his previous statement – His statement inconclusive as regards
the assault being cause of death, thus cannot be relied upon to
convict the accused for offence of murder – Testimony of the other
one not such that it may on its own form the basis of conviction
of the accused for the offence of murder – More so, it leaves
many gaps in the prosecution story – Furthermore, the seizure
of lathi and clothes from the accused cannot be considered as
a clinching circumstance warranting conviction – In view thereof,
prosecution not able to convincingly prove the genesis of the
crime as also the manner in which the murder took place and by
whom, inasmuch as the evidence led by the prosecution gives rise
to a strong probability of the killing being a consequence of mob
action on the deceased for his alleged involvement with a lady of
the village – Thus, taking into account the various circumstances,
the accused entitled to benefit of doubt – Judgment and order of
the courts below set aside. [Paras 14, 16, 18 and 19-26]
* Author
[2023] 12 S.C.R. 139
HARILAL ETC. v. STATE OF MADHYA PRADESH
(NOW CHHATTISGARH)
Delay/laches – FIR – Delay in lodging FIR – Absence of proper
explanation – Duty of the court:
Held: Courts must be on guard and test the evidence meticulously
to rule out possibility of embellishments in the prosecution story –
Delay gives opportunity for deliberation and guess work especially
when there is high probability of no one witnessed the incident at
night in an open place or a public street. [Para 19]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 2216-
2217 of 2011.
From the Judgment and Order dated 17.02.2010 of the High Court of
Chhattisgarh at Bilaspur in CRLA Nos.864 and 865 of 1991
D. N. Goburdhun, Sr. Adv., Aakarsh Kamra, Ms. Gauri Goburdhun,
Advs. for the Appellants.
Mrs. Prachi Mishra, AAG, Mahesh Kumar, Amanpreet Singh Rahi,
Nikhilesh Kumar, Ms. Devika Khanna, Mrs. V D Khanna, M/s. Vmz
Chambers, Advs. for the Respondent.
The Judgment of the Court was delivered by
MANOJ MISRA, J.
1. These two appeals are directed against a common judgment and
order of the High Court of Chhattisgarh at Bilaspur (in short, “the
High Court”), dated 17.02.2010, passed in Criminal Appeal Nos. 864
and 865 of 1991, whereby the appeals of Harilal and Parasram @
Rangnath (the appellants herein) were dismissed and the order of the
third Additional Sessions Judge, Bilaspur, dated 13.07.1991, passed
in S.T. No.153 of 1990, convicting and sentencing the appellants to
imprisonment for life under Section 302 of the Indian Penal Code,
1860 (in short, “I.P.C.”) was affirmed.
Introductory Facts
2. Three accused, namely, Anshram, Parasram alias Rangnath and
Harilal, were tried for committing murder of Ellahabadiya alias
Vijay (the deceased) on 25.08.1989 at about 8.00 pm. Based on
information received, a first information report (Ex.P-7) (in short,
“the FIR”) naming the aforesaid three accused was lodged by Smt.
Jugmatibai (PW-9) at P.S. Hirri, District Bilaspur (M.P.) on the next
140 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
day of the incident i.e. on 26.08.1989 at about 10 am. On 26.08.1989
itself, the inquest was conducted and the police collected bloodstained earth/plain earth from the spot and also seized a lathi,
which was lying near the body of deceased. On the same day, the
police showed discovery of lathi, Baniyan, Lungi (loin-cloth) at the
instance Anshram from his house. Similarly, discovery of lathi and
clothes at the instance of Parasram was disclosed from his house.
The third accused, namely, Harilal, was arrested on 27.08.1989 and
on the same day, a lathi and clothes were allegedly discovered at
his instance from his house. The dead body of the deceased was
sent for autopsy, which was conducted by Dr. S. K. Dutta (PW-8) on
27.08.1989 at 12.30 pm. PW-8 noticed that rigor mortis was present
in lower limbs; decomposition had started; the eyes were forced out
of the sockets; tongue was protruding between the teeth; lips were
swollen and everted; abdomen was distended; penis and scrotum
were swollen; multiple skin blisters containing reddish fluid on the
face and front of the trunk were seen and faecal matter had escaped.
PW-8 observations in respect of the cadaver were as follows: -
Ante-mortem External Injuries: -
(i) Lacerated wound 3.5cm x 2.5cm x 0.5cm on left temporal region;
(ii) Lacerated wound 2.5cm x 1 cm dividing the centre of the pinna
of the left ear. Both the injuries were black and were surrounded
by black clotted blood.
(iii) Three contusions on one third upper portion of the left thigh in
the side portion:
25cm x 1 cm;
12 cm x 1 cm; and
7cm x 1cm.
Colour of which had blackened
Internal Examination: -
Brain - Extradural haemorrhage on the left temporal region in the
form of localised clot which had compressed and flattened the
underlying brain.
[2023] 12 S.C.R. 141
HARILAL ETC. v. STATE OF MADHYA PRADESH
(NOW CHHATTISGARH)
Chest - Fractures on 4th, 5th, 6th, 7th and 8th ribs on both sides.
Lungs - Contusion of both lungs on the anterior surface. Pleural
cavity contained black clotted blood.
Heart - Both the chambers of heart were empty.
Cause of death - Shock due to injuries in the brain and lungs.
Duration: Time since death is 24 to 48 hours.
3. The prosecution examined as many as 15 witnesses. They were
broadly categorized by the trial court into three categories: - (i) eyewitnesses of the incident; (ii) witnesses who reached the spot on
getting information about the incident; and (iii) witnesses who proved
proceedings relating to investigation, medical examination, inquest,
seizure memos, preparation of site plan, etc.
4. The first category of witnesses were: PW-1 (Kanhaiya Lal); PW-2
(Sitaram); PW-3 (Mohanlal); and PW-6 (Ganesh). Another witness,
namely, PW-4 (Ramanand), who was set up as a person who
arrived at the spot on receipt of information of the incident, during
his deposition, portrayed himself as an eye-witness of the incident.
5. Amongst the aforesaid category of witnesses, PW-1 was declared
hostile. When he was confronted with his previous statement recorded
under section 161 of the Code of Criminal Procedure, 1973 (in
short, “the Code”) he stated that the police had forcibly taken his
statement though he had not witnessed the incident. Consequently,
the trial court found his testimony of no benefit to the prosecution.
PW-3 was discarded by the trial court as unreliable because he was
found inconsistent with his statement made during the course of
investigation. PW-4, who for the first time during examination in Court
professed himself to be an eye-witness, was also found not reliable
as he too was inconsistent with his previous statement recorded
during the course of investigation. Thus, only two eyewitnesses
of the incident, namely, PW-2 and PW-6, were discussed in some
detail by the trial court.
6. The trial court noticed that though PW-2 (Sitaram) supported the
prosecution case as against accused Harilal but he did not name
the other two accused, namely, Anshram and Parasram. However,
PW-6 who inculpated all the three accused was found wholly reliable
142 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
by the trial court. Therefore, by placing reliance on his testimony,
the trial court convicted all the three accused. While doing so, the
trial court found the testimony of PW-6 duly corroborated by medical
evidence as also by the circumstance of discovery of blood-stained
lathi and clothes at the instance of the accused.
7. Aggrieved by their conviction, three separate appeals were filed by
each of the three accused. Criminal Appeal No. 866 of 1991, which
was preferred by Anshram, stood abated consequent to his death
during pendency of the appeal. Whereas, the other two appeals,
namely, Criminal Appeal Nos. 864 of 1991 and 865 of 1991, filed
by the present set of appellants were dismissed by the High Court
by the impugned judgment and order.
8. We have heard Shri D.N. Goburdhun, learned senior counsel, for
the appellants; and Ms. Prachi Mishra, Additional Advocate General,
for the State of Chhattisgarh.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
9. The learned counsel for the appellants submitted that the incident
is of late evening/night whereas the FIR was lodged next day at
10 am, which is suggestive of the fact that no one witnessed the
incident and FIR was lodged after deliberation and the prosecution
story developed thereafter; otherwise also, testimony of PW-2 and
PW-6 is unreliable for the following reasons:
(i) PW-2 is a resident of village Khapri, whereas the incident
occurred in village Kohroda. According to PW-2, he had visited
Kohroda in the evening to watch television. There he witnessed
the incident. After which, he left the village and in the evening
itself he informed Smt. Jugmatibai (PW-9), a Kotwarin (village
chowkidar) of village about the incident. However, PW-9
stated that she was not informed by any person who might
have witnessed the incident. This, according to the appellants’
counsel, seriously dents the credibility of PW-2. That apart,
PW-2 only disclosed the name of Harilal. Further, PW-2 does
not state that the deceased was assaulted to such an extent
that he would have expired, or had expired, on account of
injuries sustained by him.
[2023] 12 S.C.R. 143
HARILAL ETC. v. STATE OF MADHYA PRADESH
(NOW CHHATTISGARH)
(ii) PW-6 is not consistent with his previous statement made during
the course of investigation, inasmuch as during investigation
he disclosed that the accused assaulted the deceased with
sticks (danda) but in his deposition in Court he stated that the
accused had assaulted the deceased with lathi. A lathi is much
thicker and heavier than a danda. That apart, PW-6 was not
consistent in respect of the reason as to why he came out of
his house to witness the incident. In his deposition in Court he
had stated that,- he was in his house at the time of the incident;
he came out on alarm raised by mother of accused Parasram
that Ellahabadiya alias Vijay (i.e., the deceased) was beating
her son Parasram, which was inconsistent with his previous
statement made during investigation wherein he had stated that
he came out on hearing loud noises of a fight in the Gali (alley).
Moreover, PW-6 disclosed that the incident occurred in front of
the house of Anshram whereas the body of the deceased was
found near a temple which was at a considerable distance from
the house of Anshram. Otherwise also, PW-6 made no effort to
lodge a report, or inform persons of the village. This conduct
of his does not inspire confidence in his testimony.
10. In the alternative, it was submitted that from the testimony of
prosecution witnesses it appears to be a case where there was
a street fight. The cause and motive for such street fight is not
clear except that there existed some dispute with regard to a lady.
Therefore, considering the nature of the weapons used, it would
be a case falling under one of the Exceptions of Section 300 I.P.C.
Hence conviction under Section 304 Part-I I.P.C. would serve the
ends of justice and their sentences might be reduced to the period
of sentence already undergone as both the surviving accused
(appellants herein) have served over 10 years of sentence during
the course of the trial / appeal.
SUBMISSIONS ON BEHALF OF THE STATE
11. Per contra, the learned counsel for the State submitted that PW-9 (i.e.
the informant) had deposed that the villagers guarded the body entire
night and next day morning FIR was lodged. In these circumstances,
it cannot be said that the FIR is delayed and, therefore, contrived.
PW-2 is a natural witness who, on his way return, witnessed the
144 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
incident and informed the informant. Even if PW-2 did not name all
the three accused in his deposition, his deposition corroborates the
testimony of PW-6 with regard to the manner in which the deceased
was assaulted by the accused. The testimony of PW-6 inculpates all
the three accused and is consistent with medical evidence. Further,
nothing has come out from their cross-examination to attribute any
improper motive on them to falsely implicate the accused persons.
Thus, there is no good reason to disbelieve the said witnesses
particularly when the trial court and the appellate court has placed
reliance on their testimony after testing the same on the strength
of other materials/evidence(s) on record. She also argued that the
ocular account rendered by PW-2 and PW-6 is corroborated by the
circumstance of discovery of lathi and clothes at the instance of
the accused and serologist report confirms presence of blood on it.
12. In response to the contention that the conviction of the accused could
be altered from one punishable under section 302 IPC to one under
section 304 Part-I, the learned counsel for the State submitted that
the injuries found on the body of the deceased reflects that he was
mercilessly beaten. Medical evidence indicates that there were not
only head injuries but fracture of ribs as well; that too, on both sides.
That apart, no plea was taken by the accused persons to bring their
case under any of the Exceptions of Section 300 of the I.P.C. Hence,
the accused have been rightly convicted for the offence punishable
under section 302 I.P.C. and the appeals lack merit.
DISCUSSION AND ANALYSIS
13. We have considered the rival submissions and have perused the
record.
14. In this case, we notice from the record that the trial court as well as
the High Court while appreciating the evidence have not properly
addressed various aspects, namely, (a) there is no clear cut motive
proved against the accused except that there was some incident
concerning a lady of the village; (b) PW-2 and PW-6 both state
that the deceased was assaulted in front of the house of one of the
accused persons, namely, Anshram, but, the site plan (Ex. P-21/P-22)
does not disclose the house of Anshram and from the site plan as
well as the testimonies of PW-6, PW-9 (the informant) and police
[2023] 12 S.C.R. 145
HARILAL ETC. v. STATE OF MADHYA PRADESH
(NOW CHHATTISGARH)
witnesses it is clear that dead body of the deceased was found near
a temple about 300 feet away from the place where the deceased
was allegedly assaulted; as to how the dead body reached there, the
ocular account has no explanation though some drag marks were
noticed by the investigating officer; (c) as per seizure memorandum
(Ex. P-13), amongst other articles, a lathi was seized by the police
from the place where the dead body was lying - whose lathi it was,
the prosecution evidence is silent; (d) the articles i.e. lathi and clothes
seized at the instance of the accused though were stained with blood,
the serologist report could not confirm its origin; and (e) PW-2 sets
up a story that he narrated the incident to PW-9 but PW-9, who is
Kotwarin (village Chowkidar) of a neighbouring village, states that
she was not informed by any eye witness, rather she arrived at the
spot as a reaction to the commotion. All these aspects were material
as they were indicative of a mob violence on the deceased due to
some incident concerning a lady of the village.
15. Bearing the above aspects in mind, we shall now carefully examine
the prosecution evidence to test whether it inspires confidence
and succeeds in proving the charge against the accused beyond
reasonable doubt.
16. Before we proceed to analyse the testimony of the two material eyewitnesses of the incident (i.e., PW-2 and PW-6), what is important to
note is that as per the ocular account of PW-2 and PW-6, the assault
on the deceased took place between 7 pm and 8 pm of 25.08.1989.
However, neither PW-2 nor PW-6 lodged the FIR. Rather, a named
FIR was lodged on 26.08.1989 at 10 am by PW-9 i.e., Kotwarin
(village Chowkidar) of neighbouring village Khapri, even though she
was not an eye witness. In these circumstances, the statement of
PW-9 assumes importance to ascertain the source of her information.
Unfortunately, neither the trial court nor the High Court have carefully
considered the deposition of PW-9.
17. PW-9, in her deposition, stated that she is Kotwarin of village Kharpi
and Kotwar of village Kohroda (i.e., the place where incident occurred)
is some other person. Ellahabadiya @ Vijay (the deceased) was a
resident of her village. On the night of the incident, at about 9 pm,
while she was taking a round of her own village, she heard loud
noises coming from village Kohroda. Fellow villagers Lulwa and
146 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
Sudhwa asked PW-9 to go to village Kohroda. When she went to
village Kohroda, she noticed the dead body of Ellahabadiya lying
near Rupau temple. Upon finding the dead body there, she went to
inform the village Chowkidar of Kohroda, woke him up and brought
him to the place where the dead body was lying. Thereafter, the
body was guarded through the night with the help of villagers and
next day morning, FIR was lodged at P.S. Hirri.
During cross-examination, PW-9 specifically stated that she was not
informed by any person that he had witnessed the deceased being beaten.
She also specifically stated that neither Parasram nor Sitaram came to
inform her about the incident.
18. The statement of PW-9 is of significance for multiple reasons. First,
that PW-2 did not inform her about the night incident as is alleged
by PW-2 in his deposition; second, the body of the deceased was
found near the temple and was kept there overnight; and third, if no
one had told PW-9 about the incident, why a named FIR was lodged.
19. Although there might not have been a specific question put to
PW-9 as regards the delay in lodging the FIR but the fact that it
was a delayed FIR cannot be ignored. When an FIR is delayed, in
absence of proper explanation, the courts must be on guard and test
the evidence meticulously to rule out possibility of embellishments
in the prosecution story, inasmuch as delay gives opportunity for
deliberation and guess work. More so, in a case where probability
of no one witnessing the incident is high, such as in a case of night
occurrence in an open place or a public street.
20. Bearing the above principles in mind, when we test the deposition
of PW-2 against the weight of PW-9’s testimony, the statement of
PW-2 to the effect that after witnessing the incident, he left the spot
and informed PW-9 appears unworthy of acceptance. That apart,
PW-2 does not inculpate all the three accused. He only inculpates
Harilal. In this regard, PW-2 is inconsistent with his previous statement
inasmuch as in his previous statement, with which he was confronted,
he had inculpated all the three accused whereas in his deposition
in Court he stated that he had not stated before the investigating
officer that both Anshram and Harilal were assaulting the deceased.
Moreover, PW-2 does not disclose the seriousness of the assault on
[2023] 12 S.C.R. 147
HARILAL ETC. v. STATE OF MADHYA PRADESH
(NOW CHHATTISGARH)
the deceased. He does not state that the deceased was seriously
injured by the blows inflicted on him. Therefore, his statement is
inconclusive as regards the assault being the cause of death. Rather,
it leaves room for a possibility that the assault which he witnessed
was just the beginning of a mob assault on the deceased concerning
his involvement with a lady of the village. More so, when the dead
body of the deceased was found 300 feet away from the place where
the deceased was allegedly assaulted. Further, PW-2’s statement
in respect of number of persons assaulting the deceased appears
inconclusive. Taking the above into account and having regard to
the fact that PW-2 is a chance witness, not a resident of the village
where the incident occurred, and his statement was inconsistent
with his previous statement, in our view, it would be unsafe to rely
on PW-2 to convict the accused for the offence of murder.
21. Insofar as PW-6 is concerned, he too is a chance witness, inasmuch
as he was not present at the spot when the assault on the deceased
started. According to him, he came out to witness the incident when
an alarm was raised by mother of Parasram, one of the accused,
that Ellahabadiya (the deceased) was beating her son. According to
PW-6, when he came out, he saw all the three accused assaulting
the deceased with lathi in front of the house of Anshram. He does not
state that the deceased was armed and had attacked the accused.
The deposition of PW-6 that he came out to witness the incident on
alarm raised by accused Parasram’s mother that his son is being
beaten by Ellahabadiya (the deceased) is inconsistent with his
previous statement made during the course of investigation, with
which he was confronted, wherein he stated that he came out on
hearing loud noises coming from the street in front of the house of
Anshram. His previous statement is reflective of a mob attack on the
deceased which is corroborated by PW-6’s conduct, inasmuch as,
according to PW-6, after witnessing the incident, PW-6 went away
without informing any one about the incident and returned back only
when all the villagers congregated at Rupau temple near the dead
body of the deceased. No doubt, different people react differently
to a given situation. But if it had truly been an issue between few
individuals fighting in the street, natural course of human conduct
would be to collect people to solve out issues. However, where
villagers in general, and none in specific, assault a person accused
148 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
of his involvement with a lady, it is quite natural for by-standers not
to intervene.
22. In addition to the above, what is of significance is that if PW-6 had
arrived at the spot later, when other villagers had collected near
the body of the deceased, he could have informed PW-9 about
the culpability of the accused but, PW-9 categorically states in her
deposition that no one informed her about the perpetrator of the crime.
23. Further, PW-6 gives no indication as to how the body of the deceased
was brought near the temple from the place where he was allegedly
assaulted i.e. in front of the house of Anshram. It be noted that in
paragraph 4 of his deposition, PW-6 categorically states that the
distance between the temple where the body was found and the
place where the deceased was assaulted is 300 feet. For all the
reasons above, we do not find the testimony of PW-6 to be of such
a stellar quality that it may on its own form the basis of conviction of
the accused for the offence of murder. More so, because it leaves
many gaps in the prosecution story, namely, as to how the body came
near the temple and why a lathi was left near the dead body of the
deceased when, as per the police story, all the three assailants had
walked away with their respective lathis, which were later discovered
at their instance.
24. In light of the discussion above, we are of the considered view that
the prosecution has not been able to convincingly prove the genesis
of the crime as also the manner in which the murder took place and
by whom, inasmuch as the evidence led by the prosecution gives
rise to a strong probability of the killing being a consequence of
mob action on the deceased for his alleged involvement with a lady
of the village. Thus, taking into account that it was a case of night
occurrence, the body of the deceased was found at an open place
near a temple; a named FIR was lodged not by any villager of the
place where the deceased was assaulted, but by PW-9 i.e., the village
Chowkidar of the neighbouring village, who admits that no eye witness
had informed her; and the body was found at a distance of 300 feet
from the place where the deceased was allegedly assaulted, we are
of the view that this is a fit case where the accused are entitled to
the benefit of doubt.
[2023] 12 S.C.R. 149
HARILAL ETC. v. STATE OF MADHYA PRADESH
(NOW CHHATTISGARH)
25. At this stage, we may observe that though the prosecution relied
on seizure of lathis and clothes at the instance of the accused
but these incriminating circumstances have been denied and the
serologist report could not confirm the origin of blood stains found
thereon. That apart, next to the dead body of the deceased, a lathi
was found. This lathi alone could have caused the injuries found on
deceased’s body. Unexplained presence of the lathi is of significance
when it is not the case of the prosecution that the deceased had
used the lathi in self-defence. For all the reasons above, we do not
consider seizure of lathi and clothes from the accused as a clinching
circumstance warranting conviction.
26. The appeals are accordingly allowed. The judgment and order of the
High Court as well as of the Trial Court are set-aside. The appellants
are acquitted of the charge for which they have been tried. The
appellants are reported to have been released on bail during the
pendency of this appeal. Their bail bonds are discharged. They need
not surrender. In case they are not on bail, they shall be released
forthwith unless wanted in any other case.
Headnotes prepared by: Nidhi Jain Result of the case : Appeals allowed.
