HARILAL ETC.versusSTATE OF MADHYA PRADESH (NOW CHHATTISGARH)

                 [2023] 12 S.C.R. 138 : 2023 INSC 801



                           CASE DETAILS

                            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.]
                             HEADNOTES
     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
                                   138
         HARILAL ETC. v. STATE OF MADHYA PRADESH                         139
                  (NOW CHHATTISGARH)

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]
     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]
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
     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
     Appearances:
    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.
       JUDGMENT / ORDER OF THE SUPREME COURT
                               JUDGMENT
     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
140           SUPREME COURT REPORTS                        [2023] 12 S.C.R.


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 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
blood-stained 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:
         HARILAL ETC. v. STATE OF MADHYA PRADESH                            141
          (NOW CHHATTISGARH) [MANOJ MISRA, J.]

      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.
     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) eye-witnesses
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
142          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


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 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
        HARILAL ETC. v. STATE OF MADHYA PRADESH                          143
         (NOW CHHATTISGARH) [MANOJ MISRA, J.]

          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.
     (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
144           SUPREME COURT REPORTS                         [2023] 12 S.C.R.


(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 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
         HARILAL ETC. v. STATE OF MADHYA PRADESH                           145
          (NOW CHHATTISGARH) [MANOJ MISRA, J.]

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 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
eye-witnesses 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
146          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


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 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
         HARILAL ETC. v. STATE OF MADHYA PRADESH                         147
          (NOW CHHATTISGARH) [MANOJ MISRA, J.]

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 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
148          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


in specific, assault a person accused 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.
     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
          HARILAL ETC. v. STATE OF MADHYA PRADESH                          149
           (NOW CHHATTISGARH) [MANOJ MISRA, J.]

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:                                          Appeals allowed.
Nidhi Jain