DAYA RAM & ORS.versusSTATE OF HARYANA

                   [2015) 9 S.C.R. 1141

                      .
                   DAYARAM&ORS.                             A
                            v.
                  STATE OF HARYANA
            (Criminal Appeal No.1590 of 2011)
                                                            B
                      JULY02, 2015
     [PRAFULLA C. PANT AND AMITAVA ROY, JJ.]

       Penal Code, 1860: s.302 r/w s.34 - Double murder-
Previous enmity- Threat on previous night- Informant was    c
an eyewitness to the incident of series of assault on victims-
deceased - Incident took place at night in the field - Out of
fear, informant hid himself in.bushes - In the morning found
the dead bodies- Reported matter to police thereafter- Trial
court convicted the appellants u/s.302 r/w s.34- Three other D
accused acquitted on benefit of doubt - High Court upheld
conviction of appellants - On appeal, held: The weapons of
assault were recovered on the basis of disclosure statements
made by appellants - The ocular account of the incident
presented by the PW 3 was in graphic details - He did not E
vacillate in identifying the appellants - He also could relate
the weapons of assault used by them- The injuries sustained
by deceased in the course of incident and those detected in
the post-mortem examination were compatible with each other
- The evidence of informant was reliable and consistent - F
Conviction upheld.

     Dismissing the appeal, the Court

     HELD: 1. The case witnesses an incident of double G
murder of which PW 3 has been cited to be the only eye-
witness. The deceased persons were the brothers of
informant PW 3. The courts below on a correct
assessment of his evidence concluded that he indeed
                        1141                            H
1142      SUPREME COURT REPORTS               [2015] 9 S.C.R.


 A was present at the place of occurrence at the time of the
   incident. Though the participation of the three of the
   acquitted accused persons was not accepted due to
   absence of any blood mark in the lathis said to have
   been wielded by them, in the face of the overwhelming
 B and impregnable testimony of this witness and 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. The ocular account of the incident
   presented by the PW 3 was in graphic details. He did
 C 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 were
   compatible with each other. The seizure of the weapons
 0
   of assault vis-a-vis the appellants based on their
   statements of disclosure and the report of the Forensic
   Science Laboratory, also established their irrefutable
   nexus with the crime. The plea of the decomposition of
 E the dead bodies to nihilate the medical opinion also lack
   persuasion. Noticeably, as per the testimony of the
   doctor performing the post-mortem examination, the time
   of death tallied with the one of the incident. [Para 16]
   [1153-C-H]
 F
         2. The testimony of PW 3 cannot be rejected on the
   ground that his conduct was unusual at the place of the
   occurrence, he having kept himself aloof therefrom
   instead of attempting to save his brothers who were
 G 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
 H unexpected turn of events, being in the grip of fear and
           DAYA RAM v. STATE OF HARYANA                      1143


alarm, as a matter of reflex hid himself from the assailants, A
his version of the episode, is not liable to be discarded
as a whole as the same is otherwise cogent, coherent
and compact. The participation in the gory brutal attack
of the appellants with the lethal weapons resulting in
death of two persons is proved beyond reasonable B
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. [Paras 17, 18]
[1154-A-C, E-F]
                                                              c
    CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 1590 of 2011.

      From the Final Judgment and Order dated 28.07.2010
in Crl.Appeal No. 261-DB of2003 of the Punjab and Haryana D
High Court at Chandigarh.

     P. N. Kush, Rameshwar Prasad Goyal for the Appellant.

     Arun Kumar, Rajiv Kr. Singh, Kamal Mohan Gupta for
the Respondent.                                               E

     The Judgment of the Court was delivered by

     AMITAVA ROY, J. 1. Having failed to secure redress
against their conviction under section 302 of the Indian Penal F
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 G
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 H
1144         SUPREME COURT REPORTS                    (2015] 9 S.C,R.


 A     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 I
 B     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.

 C           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
 D Information Report (for short hereinafter referred to as FIR)
   recorded on 25.8.2001at12.15 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
 E 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
 F 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
 G 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
 H concealed himself in the bushes nearby but in the moonlight
   he could recognise all the seven assailants. He mentioned that
               DAYA RAM v. STATE OF HARYANA                             1145
                      [AMITAVA ROY, J.]

  all the seven persons inflicted injuries on his brothers with their   A
  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   B
  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
  andAshok lying in front of the door of the Dhani (small hutment       C
  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,    D
  by leaving Sarwan Kumar to be on guard. Hemet 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                 E
  report to the police stationAdampurwhereupon 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           F
  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,            G
 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       H
1146       SUPREME COURT REPORTS                   [2015] 9 S.C.R.


 A 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
 B 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
 C 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
 D 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
 E 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
 F 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
 G 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
 H developments prior thereto. It dismissed the challenge to the
   trustworthiness of the informant, rejecting the defence plea of
             DAYA RAM v. STATE OF HARYANA                             1147
                    [AMITAVAROY, J.]

his indifferent conduct as a brother when the deceased were           A
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          B
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              C
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           D
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           E
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         F
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            G
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             H
1148        SUPREME COURT REPORTS                    [2015) 9 S.C.R.


 A brothers in the previous night of 23.8.2001 arid reiterated his
   version as made in the FIR that on reaching the field at about
   8/8.30 pm on 24.8.2091, the appellants and three others (since
   acquitted) did all together, inflict several assaults on his brothers
   (deceased), after emerging from behind the Bajara Crop
 B standing at the place of occurrence. He mentioned that, the
   appellant Madan was armed with j'ailly, 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
 C 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
 D 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 Sal'Wan about the incident and then
   both set off to search the injured. The witness stated, that
 E eventually they could detect the dead bodies of the two brothers
   nearthe '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
 F 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.
 G 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
 H out offear.
            DAYA RAM v. STATE OF HARYANA                       1149
                   [AMITAVAROY, J.]

      8. PW 1 Dr. Krishan Kumar stated, to have examined A
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 in;uries 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.                         B

      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 C
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      D
the post-mortem examination on the dead bodies oftheAshok
and Rohtash on 26.8.2001 at about 9.50/10.15AM, stated to
have detected the following injuries.

Ashok:                                                          E
"
     1. Lacerated wound about 1.5 cm x 5 cm on the
     anterior surface of right leg in middle. Clotted blood
     seen.                                                      F
     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.
                                                                G
     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."                       H
1150         SUPREME COURT REPORTS                     [2015] 9 S.C.R.


 A     Rohtash:
       "
             1. Lacerated wound about 3 cm x 1 cm on the left
             side of the head just above the eye brow.
 B
             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
 c           seen.
             3. On dissection of abdomen abdominal cavity was
             having blood. The right lob~ of liver was injured."

             10.1 This witness opined that in case of Ashok, the cause
 0     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
 E     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 .

 F       11. PW 9 Urned 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
 G 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
 H conducted inquest on the dead bodies and on completion of
   the formalities despatched the same for post-mortem
             DAYA RAM v. STATE OF HARYANA                          1151
                    [AMITAVAROY, J.]

 examination. He also prepared a site-plan, made seizures of       A
 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         B
 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              C
 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       D
 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        E
 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 F
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 G
4.30PM.

      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          H
kulhari, one jailly, one wooden lathi and one bamboo lathi had
1152         SUPREME COURT REPORTS                     [2015] 9 S.C.R.


 A     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-a-vis the earth
       and bucket, the blood spot had disintegrated.

 B        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
 C 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
 D 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
 E 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
 F maintained, that in view of the evidence disclosing the
   intervening events leading to the filing of the Fl R, 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
 G 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,
 H the learned counsel has argued, that the charge against
   appellants is proved beyond reasonable doubt and thus no
             DAYA RAM v. STATE OF HARYANA                              1153
                    [AMITAVAROY, J.]

interference with their conviction and sentence is warranted. A
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.                  B

       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            C
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     D
persons, namely, Devi Lal, Chander Singh and Vidyadhar alias
Didaru was not accepted due to absence of any blood mark
in the lath is 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            E
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.   F
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-a-vis the appellants based on their statements of          G
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         H
of death does tally with the one of the incident.
1154          SUPREME COURT REPORTS                  [2015] 9 S.C.R.


 A       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
 B 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
 C 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 c>bjective of any judicial scrutiny is to
 D 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 thiSi end. The participation in the gory
 E brutal attack of the appellants with the lethal weapons resulting
     in death of two personsAshok 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
 F 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
 G order of the High Court sustaining the decision of the learned
   trial court is affirmed. The appeal lacks in merits and is thus
   dismissed.

       Devika Gujral                                   Appeal dismissed.
 H