Dharambir @ Dharma vs The State Of Haryana

2024 INSC 307 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1858 OF 2009

DHARAMBIR @ DHARMA .….Appellant(s)

VERSUS

STATE OF HARYANA ….Respondent(s)

JUDGMENT

Mehta, J.

1. Vide judgment and order dated 3rd May, 1999, learned

Sessions Judge, Bhiwani convicted the appellant for the offence

punishable under Section 302 of the Indian Penal Code, 1860

(hereinafter referred to as ‘IPC’) and by an order of sentencing

dated 10th May, 1999 awarded sentence of life imprisonment and

fine of Rs.500/-, in default of payment of fine, to further undergo Signature Not Verified

rigorous imprisonment of six months to the appellant. Digitally signed by Narendra Prasad Date: 2024.04.16 16:28:34 IST Reason: 1

2. The appellant challenged the said judgment by filing Criminal

Appeal No. 259-DB of 1999 in the High Court of Punjab and

Haryana at Chandigarh. The Division Bench rejected the appeal

vide judgment dated 21st April, 2008 and affirmed the judgment

and order of conviction and sentence passed by the trial Court.

Brief Facts: -

3. The prosecution case in nutshell is that on 5th June, 1998, at

around 08:30 a.m., deceased Karambir, his brother Krishan

Kumar (PW-5), Ravinder (PW-6) and Mahender (PW-7) along with

two acquaintances (Mahender and Suresh) had gone to Prabhat

Cinema, Bhiwani. At about 11:30 a.m., the accused appellant who

was also present there, thrust a knife in the chest of Karambir

causing his instantaneous death and escaped leaving the knife

behind. The motive attributed to the accused appellant for

committing the offence was that he bore a suspicion in his mind

that deceased Karambir was involved in illicit relations with his

wife.

4. Rohtas Singh (PW-11) posted as Inspector/SHO, Police

Station City Bhiwani, received a telephonic message from Raj

Kumar (PW-9), Manager of Prabhat Cinema, regarding the incident

and acting in furtherance thereof, he along with other police 2 personnel reached the place of occurrence and recorded the

statement of first informant-Krishan Kumar (Exhibit-PF) at 01:30

p.m., which led to the registration of FIR No. 309 of 1998 at Police

Station City Bhiwani for the offence punishable under Section 302

IPC.

5. The requisite investigation was undertaken by Rohtas Singh

(PW-11) Investigating Officer, who inspected the place of

occurrence; prepared the inquest report; seized a knife lying near

the dead body; prepared the site plan; recorded the statements of

witnesses and forwarded the dead body of Karambir to the Medical

Jurist for conducting the post mortem. The Medical Jurist-Dr.

Hemant Singh (PW-1) carried out autopsy upon the dead body of

Karambir taking note of two incised wounds, one in the epigastric

region of the upper abdomen and other on the left forearm of the

deceased. The Medical Jurist (PW-1) issued a Post Mortem Report

(Ex.-PA) opining that the cause of death of the deceased was shock

and haemorrhage, as a result of injury No.1 inflicted to the vital

organs which was sufficient to cause death in the ordinary course

of nature.

6. The accused appellant was arrested on 7th June, 1998 and

chargesheet was filed against him for the offence punishable under

3 Section 302 IPC in the Court of the concerned Magistrate. The case

being exclusively triable by the Sessions Court was committed to

the Court of Sessions Judge, Bhiwani where charge was framed

against the accused appellant for the offence punishable under

Section 302 IPC, who denied the same and claimed trial.

7. The prosecution examined 11 witnesses so as to prove its

case. The prosecution case was primarily based on the testimonies

of Krishan Kumar (PW-5), the first informant, being the brother of

the deceased and Ram Kumar (PW-8) who claimed that the

accused had made an extra judicial confession before him.

8. The accused was questioned under Section 313 of Code of

Criminal Procedure, 1973 (hereinafter being referred to as ‘CrPC’)

and upon being confronted with the circumstances appearing in

the prosecution evidence, he denied the same and claimed to be

innocent. One Piare Lal was examined as DW-1.

9. Vide judgment dated 3rd May, 1999, the trial Court proceeded

to convict the accused appellant and sentenced him as above. The

appeal preferred by the appellant against the judgment and order

of conviction and sentence was rejected by Division Bench of High

Court vide judgment dated 21st April, 2008, which is subject to

challenge in the present appeal.

4 Submissions on behalf of the appellant:-

10. Shri Rishi Malhotra, learned counsel representing the

appellant vehemently contended that the evidence of the star

prosecution witness Krishan Kumar (PW-5) is not reliable. The

witness made gross improvements from his earlier statement

(Exhibit-PF) based upon which, the FIR came to be registered. The

time of incident narrated by Krishan Kumar (PW-5) in his

testimony does not match with the time of incident as stated by

Raj Kumar (PW-9), Manager of Prabhat Cinema. He further

submitted that the very presence of Krishan Kumar (PW-5) at the

crime scene is belied by the circumstance that he did not receive

any blood stains either on his person or on his clothes, which was

bound to happen if the witness was present at the crime scene

because his natural reaction on seeing his own brother being

stabbed would have been to make an attempt to save the victim

and in this process, his hands and clothes would certainly get

smeared with the blood oozing out from the wounds received by

the victim. However, the witness admitted that he did not get any

blood stains on his clothes and hands which makes his presence

at the crime scene doubtful.

5

11. Shri Malhotra further pointed out that there is grave

contradiction in the evidence of Krishan Kumar (PW-5) and Raj

Kumar (PW-9), regarding the row of seats, where the witnesses and

the deceased were seated and the row where the accused was

seated. He further submitted that in the statement(Exhibit-PF) of

first informant-Krishan Kumar, based whereupon the FIR came to

be registered, it was recorded that after about 5 to 7 minutes from

the interval, deceased Karambir cried ‘aah’ and fell down from the

chair. The first informant(PW-5) asked Mahender(PW-7), Ravinder

(PW-6), the other two acquaintances (Mahender and Suresh) as to

what happened to his brother. All of them were checking Karambir

and during the intervening period, the accused escaped from the

crime scene. The witness(PW-5) ran towards the gatekeeper and

asked him to switch on the lights and in illumination, it was seen

that a knife had been thrust into the chest of Karambir.

12. Referring to the deposition of Krishan Kumar (PW-5), Shri

Malhotra submitted that the witness stated that he himself saw

accused-Dharambir @ Dharma running away from the crime scene

which is an improvement from what he had stated in the FIR. It

was contended that two companions of the informant, namely,

Ravinder (PW-6) and Mahender (PW-7) did not support the

6 prosecution case and were declared hostile. Krishan Kumar (PW-

5) did not produce the ticket which he had purportedly purchased

for watching the movie in Prabhat Cinema. The witness further

stated that he and deceased Karambir were sitting in the first row

which was reserved for women. However, Rohtas Singh (PW-11)

Investigating Officer upon conducting the spot inspection, found

that the eye witnesses were sitting on the back row, whereas

deceased Karambir was sitting ahead of them.

13. The attention of the Court was drawn to the statement of Raj

Kumar (PW-9), Manager of Prabhat Cinema who deposed that the

gatekeeper approached him at around 11:30 a.m. to 11:45 a.m.

and informed that one person was lying in the cinema hall. When

he went there, he saw the victim lying between the seats of the first

and second rows.

14. As per Shri Malhotra, there are grave contradictions, in the

first version of the first informant-Krishan Kumar i.e Exhibit-PF

and his sworn statement as PW-5. His testimony is also

contradicted in material particulars by the testimony of Raj Kumar

(PW-9), Manager of Prabhat Cinema and Rohtas Singh (PW-11)

Investigating Officer. He also submitted that the gatekeeper of

Prabhat Cinema who was the first person to be informed after the

7 incident, was not examined in evidence and thus, adverse

inference deserves to be drawn against the prosecution because

material evidence was withheld.

15. Regarding the allegation that the accused made an extra

judicial confession before Ram Kumar (PW-8), ex-Sarpanch, Shri

Malhotra submitted that there was no occasion for the accused to

have made a confession before the witness who was closely related

to the deceased. He also urged that as per Ram Kumar (PW-8),

when the accused made the extra judicial confession, Piare Lal,

s/o Jagmal was also present with him. The said Piare Lal was not

examined by the prosecution, rather, he was examined as DW-1

and he emphatically denied that the accused had made any

confession of guilt in his presence before Ram Kumar (PW-8), ex-

Sarpanch and also denied that he and Ram Kumar (PW-8) had

produced the accused before the police.

16. Shri Malhotra concluded his submissions urging that the star

prosecution witness Krishan Kumar (PW-5) falls in the category of

a wholly unreliable witness and thus, his evidence cannot be relied

upon so as to uphold the conviction of the appellant. He placed

reliance on the judgment rendered by this Court in the case of

8 Pritinder Singh Alias Lovely v. State of Punjab 1 and contended

that an extra judicial confession is a very weak piece of evidence

and since the testimony of the witness, Ram Kumar (PW-8), before

whom the accused allegedly made the extra judicial confession,

has been contradicted by evidence of Piare Lal (DW-1), there

cannot be any justification to rely upon his evidence as well.

17. As per Shri Malhotra, once the testimony of Krishan Kumar

(PW-5) and Ram Kumar (PW-8) is discarded, there remains no

evidence on record so as to uphold the conviction of the appellant

as recorded by the trial Court and affirmed by the High Court. He

implored the Court to accept the appeal and set aside the

impugned judgments and acquit the appellant of the charge.

Submissions on behalf of the State: -

18. Per contra, Shri Deepak Thukral, learned Additional Advocate

General representing the State vehemently and fervently opposed

the submissions advanced by the learned counsel for the

appellant. He urged that the evidence of Krishan Kumar (PW-5),

being real brother of the deceased, is natural and trustworthy. The

accused is also closely related to the witness (PW-5) and the

1 (2023) 7 SCC 727 9 deceased and hence, there could not have been any reason for

Krishan Kumar (PW-5) to falsely implicate the accused for the

murder of his own brother. He further submitted that Ram Kumar

(PW-8), ex-Sarpanch has also given convincing evidence to prove

the factum of extra judicial confession made by the accused before

him and hence, the testimony of the said witness lends

corroboration to the evidence of Krishan Kumar (PW-5). He

submitted that the judgments rendered by the trial Court and the

High Court recording concurrent findings of facts do not suffer

from any infirmity warranting inference and sought dismissal of

the appeal.

19. We have given our thoughtful consideration to the

submissions advanced at bar and have minutely appreciated the

evidence available on record. We have also gone through the

impugned judgments.

Consideration of evidence and submissions:-

20. There is no dispute on the aspect that the death of Karambir

was homicidal as proved by the Medical Jurist-Dr. Hemant Singh

(PW-1) in his testimony and thus no discussion is required on this

aspect of the case.

10

21. The core issue, which requires consideration of this Court is

as to whether the testimonies of the two star prosecution

witnesses, namely, Krishan Kumar (PW-5) and Ram Kumar (PW-

8) is reliable enough so as to affirm the guilt of the accused.

22. The motive for the incident as set out in the testimony of

Krishan Kumar (PW-5) was that the accused who was closely

related to the informant and deceased Karambir, was bearing a

grudge in his mind that Karambir had developed illicit relations

with his wife. As per the witness, the accused had threatened to

take revenge upon Karambir, who was sent away from Bhiwani to

live at Pali Gothra, Rewari, the village of his maternal uncle for

further studies. Karambir returned to village Pehladgarh from his

maternal uncle’s home on 4th June, 1998. On 5th June, 1998, both

the brothers, i.e., deceased Karambir and Krishan Kumar (PW-5)

went to see their maternal aunt who was admitted in a hospital at

Bhiwani for treatment. After meeting their maternal aunt, the

brothers went to see a movie in Prabhat Cinema, Bhiwani. They

were accompanied by four other persons, namely Ravinder, Suresh

and two by the name of Mahender.

23. As per the FIR (Exhibit-PF/2), these six persons entered

Prabhat Cinema at about 08:30 a.m. in the morning and occupied

11 the first row which was reserved for women. The witness Krishan

Kumar (PW-5) stated on oath that he was sitting besides his

brother Karambir who was occupying the last chair in the same

row i.e. the first row. The accused Dharambir @ Dharma was

allegedly sitting in the next row in front of the chairs occupied by

the witness and the deceased which by itself is a contradiction

because if the witness (PW-5) and deceased were occupying the

first row, there could not have existed another row in front of the

same.

24. Be that as it may, nothing transpired till the interval of the

movie. After the interval, the movie resumed and within five

minutes, Karambir made a sound of ‘aah’ on which, Krishan

Kumar (PW-5) tried to enquire as to what had happened but by

that time, Karambir had taken his last breath. Krishan Kumar

(PW-5) claims to have seen Dharambir @ Dharma (accused)

running away. He further stated that he ran towards the

gatekeeper and asked him to switch on the lights and in the

illumination thereof, he saw his brother lying dead with his face

upwards. We find that there are inherent flaws in this version of

Krishan Kumar (PW-5). The deceased Karambir, Krishan Kumar

(PW-5) and the accused appellant were closely related and were

12 residents of village Pehladgarh. The accused appellant allegedly

bore a grudge against the deceased and due to which, he had been

sent away to a different village, namely, Pali Gothra, Rewari for

pursuing further studies. From the deposition of Krishan Kumar

(PW-5), it emerges that it was purely a chance visit of him and his

deceased brother to Bhiwani in order to see their maternal aunt

who was admitted in a hospital at Bhiwani. Thus, the accused

who resides at village Pehladgarh, could not have had the faintest

idea that the deceased would be visiting Bhiwani on that particular

day or that he would be going to Prabhat Cinema to watch the first

show.

25. The prosecution tried to prove through Jai Kishan (PW-10)

that the accused had purchased a knife from him. However, the

said witness did not oblige the prosecution and was declared

hostile. Thus, the very probability of the accused having reached

Prabhat Cinema at Bhiwani simultaneously with Krishan Kumar

(PW-5) and the deceased Karambir and that too after making the

preparation to kill the deceased by purchasing a knife is absolutely

negligible and the prosecution story does not inspire confidence.

26. Out of the four persons who accompanied the deceased

Karambir and the first informant-Krishan Kumar (PW-5) to

13 Prabhat Cinema, only two, i.e., Ravinder (PW-6) and Mahender

(PW-7) were examined in evidence. They did not support the

prosecution case and were declared hostile. Thus, there is no

independent corroboration to the testimony of Krishan Kumar

(PW-5).

27. As has been noted above, Krishan Kumar (PW-5) stated that

he along with the deceased was sitting in the first row which was

reserved for women. The accused was sitting in the next row in

front of chairs occupied by Krishan Kumar (PW-5) and deceased

Karambir. Contrary thereto, Rohtas Singh (PW-11) Investigating

Officer stated that as per the spot inspection plan, there were two

rows of chairs ahead of the point ‘A’ where the prosecution

witnesses were sitting, whereas the deceased was sitting in the row

in front of the prosecution witnesses. It may be stated that the

version of Rohtas Singh, Investigating Officer(PW-11) regarding the

row where the witnesses and deceased were sitting may not be

strictly admissible in evidence, but it definitely creates a doubt on

the prosecution story. This doubt is further fortified upon

considering the evidence of Raj Kumar (PW-9), Manager of Prabhat

Cinema who stated that the deceased was lying in between the

seats of the first and second rows.

14

28. As per the first informant Krishan Kumar (PW-5), he along

with other witnesses and the deceased was sitting in the first row

of chairs. Thus, there was hardly any possibility that deceased

Karambir after being stabbed with a knife would fall in between

the seats of the first and second row. It is also highly improbable

that the first informant-Krishan Kumar (PW-5) who was sitting on

the seat adjacent to the one occupied by the deceased, would have

failed to notice the commotion preceding the assault.

29. Raj Kumar (PW-9), Manager of Prabhat Cinema stated in his

cross-examination that when he reached the crime scene, 3 to 4

persons of village Pehladgarh were present there and they told the

police that the deceased hails from village Pehladgarh. If at all,

there is an iota of truth in the claim of Krishan Kumar (PW-5) that

he was present in Prabhat Cinema with his deceased brother, this

vague information would not have been provided to the police

officials because Krishan Kumar (PW-5) would have immediately

disclosed his brother’s identity. Krishan Kumar (PW-5) admitted in

his cross-examination, that the dead body of his brother was lifted

from the spot at about 04:00 p.m. The incident had taken place at

around 11:30 a.m. and thus it is indeed surprising as to why the

dead body was lying in Prabhat Cinema till 04:00 p.m. Krishan

15 Kumar (PW-5) did not hand over the ticket of the cinema hall to

the police. As per memo (Exhibit P-22), when the body of the

deceased was searched, only one ticket was found in his pocket.

Krishan Kumar (PW-5) admitted that he did not get blood stains

on his hands and clothes when he touched the body of his brother.

30. There cannot be any doubt that witness-Krishan Kumar (PW-

5) could not have decided at the first blush that his brother had

expired as a result of the knife blow. The natural reaction expected

from a brother in such a situation would have been to take

immediate steps for taking the victim to the hospital so as to save

his life. However, Krishan Kumar (PW-5) did not make any such

attempt. In this background, we are of the view that the very

presence of Krishan Kumar (PW-5) at the crime scene is doubtful

and his testimony is not trustworthy.

31. Another significant contradiction regarding the sequence of

events is noticeable in the evidence of Krishan Kumar (PW-5). In

his statement (Exhibit-PF) based on which FIR was lodged, he

narrated that he saw that the accused was missing from the seat

but in the sworn testimony as PW-5, he tried to improve the version

and stated that he saw the accused while he was fleeing away. This

improvement made by the witness-Krishan Kumar (PW-5) again

16 creates a doubt on his presence at Prabhat Cinema at the time of

the incident.

32. We, therefore, feel that it would not be safe to place reliance

on the evidence of Krishan Kumar (PW-5) as he clearly falls within

the category of a wholly unreliable witness.

33. Ram Kumar (PW-8) stated that he and Piare Lal (DW-1) were

sitting at his house on 7th June, 1998 and at about 12:00 noon,

the accused appellant approached them and confessed that he had

killed his father’s elder brother’s son Karambir at Prabhat Cinema.

34. Ram Kumar (PW-8) also stated that he and Piare Lal took the

accused to Bhiwani and produced him before the police.

35. However, Piare Lal was not examined by the prosecution and

rather he was examined in defence. In his testimony, Piare Lal

(DW-1) emphatically denied that any extra judicial confession was

made by the accused in the presence of Ram Kumar (PW-8). Thus,

the evidence of Ram Kumar (PW-8) regarding the extra judicial

confession made by the accused is contradicted by the evidence of

Piare Lal (DW-1). Even otherwise, extra judicial confession by its

very nature is a weak piece of evidence. It may be used as a

17 corroborative piece of evidence in tandem with substantive

evidence.

36. We are, therefore, convinced that both the star prosecution

witnesses i.e. Krishan Kumar (PW-5) and Ram Kumar (PW-8) fall

within the category of wholly unreliable witnesses and thus, in

light of the law laid down by this Court in the case of Pritinder

Singh Alias Lovely (supra), it would be unsafe to place reliance

on their evidence so as to affirm the guilt of the accused appellant.

No other evidence was led by the prosecution for bringing home

the charge.

Conclusion: -

37. In wake of the discussion made above, we have no hesitation

in holding that the prosecution failed to bring home the charge and

establish the guilt of the accused appellant beyond reasonable

doubt.

38. As a consequence, the conviction of the appellant as recorded

by the trial Court vide judgment and order dated 03rd May, 1999

and affirmed by the High Court vide judgment dated 21st April,

2008 cannot be sustained and the appellant deserves to be

acquitted by giving him the benefit of doubt.

18

39. Resultantly, the appeal merits acceptance and is hereby

allowed. The impugned judgments passed by the High Court and

trial Court are quashed and set aside.

40. The appellant is acquitted of the charge.

41. The appellant is on bail and need not surrender. His bail

bonds stand discharged.

42. Pending application(s), if any, stand(s) disposed of.

….........................J. (B.R. GAVAI)

............................J. (SANDEEP MEHTA) New Delhi;

April 16, 2024

19