HEM RAJ AND ORS.versusSTATE OF HARYANA

A                               HEM RAJ AND ORS.
                                       v.
                               STATE OF HARYANA

                                  MARCH 29, 2005

B            [P. VENKATARAMA REDDI AND P.P. NAOLEKAR, JJ.]


           Penal Code, 1860-Section 302-Death-Evidence of related
     eyewitnesses-Availability of independent eyewitness-Non-examination of-
C    Absence of blood on ihe spot of occurrence-Inadequate light-Evidence of
     Investigating Officer, one of the eyewitnesses and time and source of FIR
     doubtful-Conviction by Courts below-On appeal, held : conviction not
     justified-In view of the evidence and broad probabilities there is possibility
     of conviction of wrong persons-Accused entitled to benefit of doubt.

D          Criminal Trial :

           Independent w.tness-Non-examinatio~Ejfect of on prosecution case~
     Held: Non-examination of such witness by itself may not give rise to adverse
     inference against prosecution-But unexplained omission ofexamination would
     assume significance when the presence ofeye-witness at the scene ofoccurrence
E    is doubtful.

           Appellants-accused were alleged to have murdered a person at about
     8.45 p.m. It was alleged that they had stabbed the deceased with knives.
     The incident was alleged to have been seen by PWs-4 and 5 (brother and
     relative of deceased respectively) and one 'K' an independent witness. PW4
F    was alleged to have seen the occurrence from a distance of 30 feet. PWs 4
     and 5 took the deceased to the hospital, where the deceased was declared
     dead by the doctor and he sent the 'rucca' to Police Station. PW-9, the
     Investigating Officer received the 'rucca' at the gate of the hospital itself
     and recorded the statement of PW 4 and sent the same to Police Station
G    on the basis of which FIR was recorded at 11.35 p.m. There was delay by
     Investigating Officer in reaching the spot of occurrence. Blood stains were
     not found there. Knife was recovered from accused 'K'. No blood stains
     were found on the clothes of PWs 4 and 5. After two days of the incident
     investigation was entrusted to PW-10, at the instance of Superintendent
     of Police, and he found that all the accused other that accused 'K' were
II                                       1152
                            HEM RAJ v. ST ATE                          11531
innocent. However all the accused were tried and charge was framed A
against all of them u/s 302 IPC. Witness was not examined despite the facts
that he took the deceased to hospital, was present in the hospital, FIR
referred him as eye-witness, and was present in Court on one of the dates. ,
PW-9 stated that place of occurrence was pointed out to him by the eye-
witness 'K'. PW-10 in his examination did not give all the relevant details B
of his ~nvestigation. PWs 4, 6 and 9, had given different versions regarding
                                        '                                       I




time of recording FIR. Trial Court convicted all the accused u/s 302 IPC
on the basis of evidence of PWs 4 and 5. High Court confirmed the '
conviction and opined regarding non-examination of the independent
eyewitness that his examination would amount to 'proliferation' of direct
evidence; and as regards absence of blood stains from the scene it opined C
that it would. have disappeared in view of the time gap between the incident
and inspection of Investigating Officer. Hence the present appeals.

     Allowing the appeals, the Court

       HELD : 1. On a consideration of the evidence on record and the               p
broad probabilities, there is a reasonable possibility of some accused who
were not involved in the attack having been convicted. It is difficult to
sift the grain from the chaff. It is a case in which benefit of doubt has to
be accorded to the appellants. (1162-E]

      2. Two days after the incident, the investigation was entrusted to PW-        IE
10, at the instance of Superintendent of Police. PWIO in his evidence did
not choose to give all the relevant details of his investigation. The version
of this Investigating Officer itself casts a cloud on the reliability of the
prosecution case as unfolded by .PWs 4 and 5 that four accused were
involved. [1158-H; 1159-C)            ·
                                                                                    F
      3.1. The fact that no independent witness - though available, was
examined and not even an explanation was sought to be given for not
examining such witness is a serious infirmity in the prosecution case having
regard to the indisputable facts of this case. To put a seal of approval on
the prosecution's omission to examine a material witness who is unrelated Q
to the deceased and who is supposed to know every detail of the incident
on the ground of 'proliferation' of direct evidence is not a correct
approach. The corroboration of the testimony of the related witnesses-PWs
4 & 5 by a known independent eye-witness could have strengthened the
prosecution case, especially when the incident took place in a public place.
                                                        [1159-D; 1159-G-H] H
    1154                    SUPREME COURT REPORTS                   [2005] 2 S.C.R.

A         3.2. Non-examination of independel}t witness by itself may not give
    rise to adverse inference against the prosec.ution. However, when the
    evidence of the alleged eye-witnesses raise serious doubts on the point of
    their presence at the time of actual occurrence, the unexplained omission
    to examine the independent witness, would assume significance. 11160-AJ

B          Takhaji Hiraji v. Thakore K~bersing Chamansing and Ors., [2001) 6
    sec 145, referred to.
          4. The surmise of the High Court that the blood stains at the public
    placase would have disappeared in view of the time gap between the
    incident and the Investigating Officer's inspection may not be correct,
C   especially, in view of the fact that it is a metal road, as shown by PW8 in
    the site plan and it was night time. It is difficult to believe that traces of
    blood would fade out by the time of the visit of the Investigating Officer.
                                                                      11160-F-G)

D          5. There is also a doubt regarding the time when the first information
    was received at the police station. The FIR was registered at 11.35 p.m.
    on the basis of the statemen.t of PW4 recorded at 11.15 p.m. at the hospital.
    However, as per the evidence of PW6 (Police Constable), the information
    regarding the occurrence was received in the police station at 10.30 or
    10.45 p.m. and thereafter PW-9 accompanied by him and other police
E   personnel went to the hospital. Apart from the fact that his evidence goes
    contrary to the version of PW9 that on receiving the death intimation at
    the hospital gate, he went straight to the hospital and an hour later he
    recorded the statement of PW4, a doubt is cast on the time and source of
    first information. [1160-H; 1161-A-B)

F         6. No weapons were recovered from any of the accused. The recovery
    of knife from accused 'K' at the time of surrender has been rightly
    disbelieved by the trial Court. 11161-C)

           7. The possibility of seeing all the accused attacking the deceased with
G the knives and 'Neja' from a distance of 30 feet or more, that too, in the
    night time, is rather doubtful. It would have been difficult for PW4 at the
    night time to notice each of the accused carrying a particular type of
    weapon, that too a small weapon like knife. It is difficult to accept the
    version of PW4 of having set.n the weapon in the hand of each of the
                                                                                      ---
    acc'used and the nature .of the weapon. The reference to 'Neja' in particular
H   appears to have been introduced for explaining the injuries on the body
                        HEM RAJ v. STATE [REDD!, .I.]                      1155
of the deceased. His further version that PW5 having heard his cries joined         A
him and witnessed the attack seems to, be a story invented for the purpose
of introducing another eye-witness to corroborate his version. Another
factor which casts a doubt on the evidence of PWs 4 and 5 is that there
were no blood stains on their clothes, though allegedly, they placed the
deceased on cot and carried him to the hospital. Moreover, soon after his           B
brother was declared dead, PW4 did not go to the Police Station which
was quite close to the hospital to lodge a report. That is not a natural
course of conduct. It is on account of these doubtful features in the
evidence of PW4 that the factum of non-examination of independent
witness, though available, assumes importance. (1161-E; G-H; 1162-C-DI
                                                                                    c
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 957
of 1998.

      From the Judgment and Order dated 14.5.98 of the Punjab and Haryana
High Court in Crl. A. No. 22-DB qf 1998.
                                                                                    D
                                        WITH

      Crl.A. No. 958 of 1998.

      Sushi! Kumar, K.R. Nagaraja, A.P. Jain, Ms. E.R. Sumathy, with him
for the Appellants.                                                                 E
     D.P. Singh V.K. Garg, Manu Sharma, Ms. Avneet Toor for the
Respondent.

      R.N. Mittal, Puneet Mittal, Pawan Kr Mittal and Arvind Kumar Gupta            F
for the Respondent/Complainant.

      The Judgment of the Court was delivered by

       P. VENKAT ARAMA REDDI, J. The four appellants herein who are
brothers faced trial before the Additional Sessions Judge - I, Jind for murdering   G
one Hemant Kumar at a central place in Safidon town, on the night of 3.4.1996
at about 8.45 p.m. They were convicted under Section 302 iPC and sentenced
to life imprisonment. The High Court dismissed the appeals filed by the
accused. Hence, these appeals by special leave.

      The following is a brief account of the prosecution case and other            H
relevant facts :
    1156                    SUPREME COURT REPORTS                  [2005] 2 S.C.R.   ,,,_
A         On the night of 3rd April, 1996, all the accused attacked Hemant Kumar
   at Channi Chowk and stabbed him with knives. As a result of stabbing, he
   received six injuries out of which two were in the chest region. The fatal
   assault by the four accused was seen by the younger brother of deceased~
   PW4, who was returning home from his watch repair shop. On being informed
B ·by a passer-by on a bicycle, PW4 rushed to the spot and having noticed fram
   a distance of 30 ft. or so that the attack on the deceased was going on, he
   raised an alarm. Hearing the cries, PW5-another relation of the deceased and
   one Kapoor Singh who were at a nearby sweet shop joined PW4. On seeing
   all of them, the accused fled. According to PWs 4 and 5, three accused
   carried knives.and the accused, namely, Kala carried 'Neja' (which resembles
C knife). The injured person fell down on the spot and he was taken on a cot
   to the Civil Hospital, Safidon by the aforementioned three persons. At the
   hospital, the doctor (not examined) declared him dead. The same doctor sent
   a rucca (memo) to the Police Station, Safidon at about 9.50 p.m. The Sub-
   Inspector of Police-PW9 was going on a jeep by the side of the hospital. The
D Ward Boy of the hospital handed over the rucca to him PW9 then came to
   the hospital and after sometime, recorded the statement of PW4 at the hospital.
   He sent the same to the Police Station, on the basis of which an FIR was
   recorded at 11.30 p.m., for an offence under Section 302 read with Section
   34 IPC. Copy was sent to the Judicial Magistrate through a Constable and it
E reached him at about 1.00 a.m. In the said statement given to the police, PW4
   named the four accused as the assailants. PW9 held the inquest over the dead
   body in the hospital and sent the dead body for post-mortem. The Medical
   Officer attached to the General Hospital, Jind did the post-mortem examination
   at 9.15 a.m. on 4.4.1996 and prepared the post-mortem report which is Ex.PA.
   PW9 could go to the scene of occurrence at about 2.30 a.m. The delay was
F for the reason that he tried to stop a reprisal attack by a mob to set fire to
   the houses of the accused. He prepared a site plan. One Gobind Das produced
   all the four accu·sed persons involved in the offence in the night of 4.4.1996
   before PW9 while he was at Court Road Chowk. They were arrested and
   immediately thereafter, the accused Kala produced a knife (Ex.Pl). The total
G length of that knife was 8 inches inclusive of 4" of handle and the width of
   the blade was about 0.2 to 0.3 ems. PWIO-Inspector of Police, CIA, was
   entrusted with investigation from 6.4.1996 onwards. He recorded the statements
   of some witnesses. He applied for judicial remand of the arrested accused.
   On the same day, PWIO took the knife seized from Kala to the Medical
   Officer-PW!, who endorsed on the post-mortem report that the injuries could
H be inflicted by that knife. On the basis of his investigation, PWI 0 found that
                       HEM RAJ v. STATE [REDDI, J.]                     1157
the accused other than Kala were innocent. Therefore, in the report under        A
Section 173 Cr.P.C., only Kala was shown as the accused for the offence
punishable under Section 302 IPC. However, all the four accused persons
were committed to Sessions. After examining the record, the learned Judge
found that there was a prima facie case to proceed against all the accused.
Accordingly, the charge was framed against all the accused under Section         B
302 IPC. Curiously, Section 34 was omitted in the charge. On the basis of
the evidence of the eye-witnesses, namely, PWs 4 and 5, the accused were
convicted under Section 302 IPC.

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

     The details of post-mortem examination may be noticed at this juncture.
The following injuries were found on the body of the deceased : -                D
    (i)      Spindle shaped incised wound on left side of chest just lateral
             to left nipple 1.5 cm x 1 cm x 4 cm. The wound cut through
             skin, costal muscles, corresponding cut in pleura was present.
    (ii)     Incised wound (spindle shaped) 3 x I x 7 cm on the left side of
             chest 5 cm below injury no. I longitudinally placed, wound cut      E
             through shirt, banian, Costa! muscles, 6th and 7th intercostals
             space, left lung.
    (iii)    Incised .wound (spindle shaped) 2.5 x I cm x 6 cm obliquely
             placed on left side of abdomen 5 cm below the costal margin.
             The wound cut through skin muscle, peritoneal membrane and          F
             a cut of 1.5 x Yi x %th of cm. on spleen was present.

    (iv)     Incised wound 4 cm x 1.5 cm muscle deep on the posterior
             lateral aspect of left fore-arm.

    (v)      Incised spindle shaped wound on upper thigh of the size of 3 x      G
             1.5 cm x lcm. 15 cm below iliac crest.

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

      The learned senior counsel for the appellant contended that it is a case
of blind murder which might not have been witnessed by anybody and the           H
    1158                    SUPREME COURT REPORTS                    [2005) 2 S.C.R.

A   version of PWs 4 and 5 - the alleged eye-witnesses and close relations of the
    deceased is unnatural and unbelievable. No explanation was forthcoming for
    not examining the independent witnesses who would have been available at
    the place of occurrence which is in a busy locality. The sc_ene of offence has
    not been established beyond doubt and the time of occurrence, the time of
    recording the statement of PW4 and the FIR and the time of death are all
B   doubtful. Recovery of knife from the accused Kala is concocted, as held by
    the trial,. court. It is pointed out that the pattern of stab injuries received by
    the victim only on one side of the body shows that one or two persons ~ould
    have inflicted injuries but not as many as four. In this context, it is pointed
    out that the 2nd investigating officer-PWIO, after recording the statements of
C   certain witnesses thought it fit to file the charge-sheet against one accused
    only, namely Kala. However, by the order of the Sessions Judge, all the four
    were charged on the ground that they were named in the FIR. Finally it is ·
    submitted that in the absence of charge under Section 302 IPC read with
    Section 34, the conviction cannot be sustained under Section 302 simplicitor.
D   It is then submitted that the offence does not in any case fall under .section
    300 IPC.

          The learned counsel appearing for the State as well as the learned
    senior counsel appearing for the informant-PW4 who has been allowed by
    this Court to intervene have countered the above arguments. It is contended
E   by them that even. in the absence of specific mention of Section 34 IPC in
    the charge, the conviction can still be sustained, that there is nothing to
    discredit the testimony of PW4 or PW5, that the arguments relating to ante-
    timing of the FIR and the improbability of participation of as many as four
    accused are without substance. The injuries being sufficient in the ordinary
    course of nature to cause death, all accused are constructively liable for the
F   offence of murder irrespective of ~hich accused had inflicted the particular
    injury. It is submitted that the concurrent findings of both the Courts cannot
    be legally faulted.

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

          Two days after the incident i.e. on 5.4.1996, the investigation was
H   entrusted to PW I 0-Inspector, CIA at the instance of Superintendent of Police,
                       HEM RAJ v. STATE [REDDI, J.]                    1159

Jind. PWIO stated in cross examination that he inspected the place of A
occurrence and examined the persons staying near the place of occurrence
and recorded the statements of such persons. The names of those five persons
were given. Then he added that "from their statements, it was revealed that
Hemraj, Chunnilal and Omprakash were innocent". He further stated that the
investigation done by him was verified by DSP. Ultimately he filed the final B
report showing only Kala as the sole accused. However, as already noticed,
all the four accused mentioned in the FIR were committed to Sessions and
the Sessions Judge framed charge against all of them under Section 302.
PWIO did not choose to give all the relevant details of his investigation.
However, the version of this Investigating Officer itself casts a cloud on the
reliability of the prosecution case as unfolded by PWs 4 and 5 that four C
accused were involved.

       The fact that no independent witness - though available, was examined
and not even an explanation was sought to be given for not examining such
witness is a -serious infirmity in the prosecution case having regard to the
_indisputable facts of this case. Amongst the independent witnesses, Kapur D
Singh was one, who was very much in the know of things from the beginning.
Kapur singh is alleged to have ~een in the company of PW5 at a sweet stall
and both of them after hearing the cries joined PW4 at Channi Chowk. He
was one of those who kept the deceased on a cot and took the deceased to
hospital. He was there in the hospital by the time tfie first I.O.-PW9 went to E
the hospital. The evidence of the first 1.0. reveals that the place of occurrence
was pointed out to him by Kapur Singh. His statement was also recorded,
though not immediately but later. The 1.0. admitted that Kapur Singh was the
eye-witness to the occurrence. In the FIR, he is referred to as the eye-witness
along with PW5. Kapur Singh was present in the Court on 6.10.1997. The
Addi. Public Prosecutor 'gave up' the examination of this witness stating that F
it was unnecessary. The trial court commented that he was won over by the
accused and therefore he was not examined. There is no factual basis for this
comment. The approach of the High Court is different. The High Court
commented that his examination would only amount to 'proliferation' of
direct evidence. But, we are unable to endorse this view of the High Court. G
To put a seal of approval on the prosecution's omission to examine a material
witness who is unrelated to the deceased and who is supposed to know every
detail of the incident on the ground of 'proliferation' of direct evidence is not
a correct approach. The corroboration of the testimony of the related witnesses-
PWs 4 & 5 by a known independent eye-witness could have strengthened the
prosecution case, especially when the incident took place in a public place. H
    1160                    SUPREME COURT REPORTS                    [2005) 2 S.C.R.

A         Non-examination of independent witness by itself may not give rise to
    adverse inference against the prosecution. However, when the evidence of
    the alleged eye-witnesses raise serious doubts on the point of their presence
    at the time of actual occurrence, the unexplained omission to examine the
    independent witness-Kapur Singh, would assume significance. This. Court
B   pointed out in Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors.,
    [200 l] 6 sec 145. -

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

F         One more aspect which deserves notice is that at the alleged scene of
    offence, no blood-stains were found by the 1.0., though he made a search.
    The surmise of the High Court that the blood stains at the public place would
    have disappeared in view of the time gap between the incident and the 1.0.'s
    inspection may not be correct, especially, in view of the fact that it is a metal
    road, as shown by PW8 in the site plan and it was night time. It is difficult
G   to believe that traces of blood would fade out by the time of the visit of 1.0.
    This is one of the circumstances that has to be kept in mind while appreciating
    the prosecution case.

          There is also a doubt regarding the time when the first information was
    received at the police station. The FIR was registered at 11.35 p.m. on the
H   basis of the statement of PW4 recorded at 11. l 5 p.m. at the hospital. However,
                       HEMRAJ v. STATE [REDDl,J.]                       1161

as per the evidence of PW6 (Police Constable), the information regarding the     A
occurrence was received in the police station at 10.30 or 10.45 p.m. and
thereafter the SI-PW9 accompanied by him and other police personnel went
to the hospital. Apart from the fact that his evidence goes contrary to the
version of PW9 that on receiving the death intimation at the hospital gate, he
went straight to the hospital and an hour later he recorded the statement of     B
PW4, a doubt is cast on the time and source of first information. If the
information was received at the police station at 10.30 p.m. why was it
suppressed? What are the details of such information? These are the questions
which remain unanswered.

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

       All the above factors would not have assumed much importance if the
evidence of PWs 4 and 5 could be accepted without raising an eye-brow.
However, two views are possible on the point whether these persons had D
really witnessed the attack. There is every reason to think that PW4, on being
informed by a way-farer, would have reached near the scene of offence
almost after the attack was over. The possibility of seeing all the accused
attacking the deceased with the knives and 'Neja' from a distance of 30 feet
or more, that too, in the night time, is rather doubtful. It is not safo to rely E
on his version that he had seen the accused with the particular weapons in
their hands. In this context, it may be noted that PW4 did not mention the
distance from which he observed the attack. In the site plan drawn to scale,
the distance of the spot from where PW4 observed the incident was given as
30 ft. It was night time-almost 9.00 p.m. and most of the shops were closed,
as seen from the evidence of PW4. PW4 or any other witness did not give p
any details about the lighting in the vicinity. However, from the site plan
drawn by PW8, there was a tube-light attached to the electrical pole situated
at 20 feet distance. It would have been difficult for PW4 at the night time to
notice each of the accused carrying a particular type of weapon, that too a
small weapon like knife. But, PW4 came forward with the version that all the
accused except one, were carrying knives and the other was carrying 'Neja'. G
Thus he claims to have seen so clearly as to distinguish between a knife and
 'Neja' at that juncture, when the attack would have been almost over and
PW4 was trying to evoke the attention of the people around. It is difficult to
accept the version of PW4 of having seen the weapon in the hand of each of
accused and the nature of the weapon. The reference to 'Neja' in particular H
    I 162                   SUPREME COURT REPORTS                    [2005) 2 S.C.R.

A   appears to have been introduced for explaining the injuries on the body of the
    deceased. It seems to us that the picture given by PW4, as if he had seen each
    of them with the knife or 'Neja' seems to be an embellishment developed
    with the idea of implicating all the brothers as the accused. His further version
    that PW5 having heard his cries joined him and witnessed the attack seems
B   to be a story invented for the purpose of introducing another eye-witness to
    corroborate his version. The possibility of PW5 who was at a sweet shop
    hearing his cries, joining PW4 and then observing the incident appears to be
    highly improbable. If PW5 had already been there near Channi Chowk for
    purchasing sweets, he would have noticed the commotion caused by the
                                                                                        -
    attack and would have seen the assailants even before PW4 arrived at the
C   spot. But his story is different. Another factor which casts a doubt on the
    evidence of PWs 4 and 5 is that there were no blood stains on their clothes,
    though allegedly, they placed the deceased on cot and carried him to the
    hospital. Moreover, soon after his brother was declared dead, PW4 did not
    go to the police station which was quite close to the hospital to lodge a
    report. That is not a natural course of conduct. It is on account of these
D   doubtful features in the evidence of PW4 that the factum of non-examination
    of independent witness, though available, assumes importance.

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

    K.K.T.                                                         Appeal allowed.