Hari Kishan vs State Of Haryana

Hari Kishan .....Appellant

Versus

State of Haryana ......Respondent

J U D G M E N T

AFTAB ALAM,J

1. These appeals are directed against the judgment of

the Punjab and Haryana High Court dated January 8, 2008 in

Criminal Appeals Nos. 206 & 207-DB of 1998, confirming the

appellant's conviction under section 302 of the penal code and

the sentence of life imprisonment awarded to him by the trial

court for having committed the murder of one Dinesh.

2. The case of the prosecution that led to the

sentencing of the appellant is based on the statement of

Harkesh (PW-2), one of the brothers of Dinesh, made before

Bhup Singh SI/SHO of Sadar Palwal PS (PW-8) at 7.20 am on June

24, 1995 at Palwal hospital where he had brought the dead body

of Dinesh.

3. In his statement before the police Harkesh said that

at about 6.15 in the morning he along with his two younger

brothers, Suresh Kumar (PW-6) and Dinesh (the deceased) was

sitting on the chabutra of their baithak in village Gailpur, 2

when Dinesh proceeded for his house to bring the clothes for

getting ready to go to Faridabad, where he was due to appear

in the B. Ed examination. As he reached the chaupal, where the

lane turned, he was waylaid by the accused Hari Kishan (the

appellant) and Rambir who were armed with knives, Shyam Lal

armed with gun, Nain Pal and Kanwar Pal armed with lathis and

Roshan and Nathi son of Gurdayal who were empty handed. Roshan

and Nathi exhorted the other accused to kill Dinesh, saying

that they would face the consequences. Hearing this, Harkesh

and Suresh ran to save Dinesh. Bhim Singh (PW-4) also came

there on hearing the noise. Even before Harkesh or his uncle

Kanti Prakash reached the spot, Nain Pal and Kanwar Pal struck

Dinesh on his back with lathis causing him to fall to the

ground. As he lay on the ground, the appellant gave knife blow

on the left side of his chest. Rambir too gave knife blows to

Dinesh. When Harkesh and Kanti Parkash tried to save Dinesh,

Rambir gave a knife blow to Harkesh that hit him on the thumb

of the left hand. Nain Pal and Kanwar Pal gave Harkesh 4/5

lathi blows. Nain Pal also gave one lathi blow on the head of

Kanti Parkash. When Harkesh tried to save Kanti Prakash, Shyam

Lal hit him on the shoulder by the butt of his gun. He also

shouted that anyone coming to their victim's rescue would be

shot dead.

4. As to the cause of the incident Harkesh stated that

shortly before the occurrence his younger brother Suresh was

elected as the village Sarpanch. He did not pay any heed to 3

the unreasonable demands of the accused and this greatly

annoyed them as they thought of themselves as the Choudhary of

the village. This had led to an altercation and an exchange of

hot words between the two sides on the previous evening but

the matter was then patched up by discussion. He finally

stated that the accused in league with one another had killed

his brother Dinesh by giving him knife and lathi blows.

5. After the occurrence he brought Dinesh to the civil

hospital, Palwal where he was declared `brought dead'. Dr.

Krishna Kumar (PW-3) who was in the hospital on duty sent

information in that regard to the SHO, PS Sadar Palwal

whereupon PW-8 came to the hospital and took down the

statement of Harkesh. He read his statement as recorded by PW-

8 (the SI police) and finding it to be correctly recorded put

his signature at the bottom. The statement of Harkesh, as

recorded by PW-8, was incorporated in a formal First

Information Report (FIR no. 286) drawn up at PS Sadar Palwal

at 9.30 a.m. on the same day for offences under sections 148,

149, 506 & 302 of the Penal Code. The FIR was delivered at

the residence of the area Magistrate on the same day at 12.20

p.m. through a special messenger, namely, constable Chander

Bhan.

6. Harkesh and Kanti Prakash, who, according to the

statement made in the FIR, had received injuries while trying

to save Dinesh were medically examined by Dr. Krishna Kumar

(PW-3) at 7.10 and 7.15 a.m. respectively on June 24, 1995. 4

The post-mortem examination on the dead body of Dinesh was

conducted on the same day at 12.45 p.m. by a team of three

doctors of which Dr. Chandrika Malik (PW-5) was also a member.

The post-mortem report noted the following injuries on the

person of the deceased:

"1. Stab wound on left side of chest, measuring 3.5 cm medial to the left nipple in the 5th intercostal space. Size 2.5 cm x 1 cm margins - upper marginal lacerated, lower margins (angled) obliquely placed; on following the path of injuries upper border of rib (6th) is cut and then piercing pericardium and entering the apex of the ventricle anteriorly (size 2.3 cm.) passing through cavity of the left ventricle and then going through the posterior wall(size 2 cm) and entering the left lung.

2. Incised wound on left arm, middle part on lateral aspect, 1.5 cm x 0.25 cm, margins inverted, skin deep.

3. Incised wound 1.5 cm x 0.25 cm on the left forearm on lateral aspect on upper part 3 cm below elbow, skin deep, margins inverted.

4. Incised wound 4 cm x 0.50 cm on middle part of thigh, lateral aspect. Skin deep, margins inverted."

7. According to the post-mortem report, death was caused

due to shock and hemorrhage as a result of injury no. 1 which

was ante-mortem in nature and was sufficient to cause death in

ordinary course of nature. Injuries Nos. 2, 3, 4 were found

to be post-mortem in nature. It was further stated that time

elapsed between death and post-mortem was within 18 hours.

8. The police after investigation submitted charge-sheet

against all the accused named in the FIR and all of them were

put on trial on charges under sections 148, 302, 324, 323 read 5

with section 149 and section 506 of the Penal Code. The

appellant, Hari Kishan, was also charged under section 25 of

the Arms Act for possession and unlawful use of the knife and

was tried separately for that offence.

9. In the main case the prosecution examined eight

witnesses out of whom three, namely Harkesh (PW-2), Bhim Singh

(PW-4) and Suresh Kumar (PW-6) claimed to be eye witnesses. Of

the rest, Dr. Kishan Kumar (PW-3) was the doctor who had

examined the injuries on the person of Harkesh and Kanti

Prakash, Dr. Chandrika Malik (PW-5) was a member of the team

of three doctors who had conducted post-mortem on the body of

Dinesh, Bhoop Singh (PW-8) was the SHO Sadar Palwal PS who had

recorded the statement of Harkesh and had investigated the

case. The remaining two, Ashok Kumar (PW-1) and Ramesh Chand

(PW-7) were formal witnesses. The prosecution also produced

some documents and some material exhibits. The accused, of

course, took the plea of false implication but they did not

lead any evidence in their defence.

10. On conclusion of trial, the trial court held the

appellant Hari Kishan guilty of killing Dinesh by giving a

knife blow on the left side of his chest and, accordingly,

convicted him under section 302 and sentenced him to

imprisonment for life and a fine of Rs.5000/- and in default

in payment of fine, to a further period of imprisonment for

one year. The trial court also convicted accused Shyam Lal,

Nain Pal and Kanwar Pal under section 323 of the Penal Code 6

for causing simple injuries to Harkesh (PW-2) and his uncle

Kanti Parkash and sentenced them to imprisonment for the

period already undergone by them as under-trial and fine of

Rs.1000/- each.

11. What is, however, of significance for our purpose is

that the trial court disbelieved a substantial part of the

prosecution story. The trial court did not accept the

prosecution case that accused Nathi and Roshan were present at

the place of occurrence and, accordingly, directed their

acquittal. As regards Rambir, the trial court pointed out that

the three incised wounds on the person of the deceased that

were attributed to him were, according to the medical

evidence, post-mortem in nature, that is to say, those three

injuries were inflicted after Dinesh was already dead. The

medical evidence, thus, clearly eliminated the participation

of Rambir in the case. He too was, therefore, acquitted. The

acquittal of the three accused brought down the number of the

remaining accused to less than five. Hence, the aid of section

149 was no longer available to bring about the conviction of

the remaining three accused Shyam Lal, Nain Pal and Kanwar Pal

under section 302 for the shared common intention with the

appellant Hari Kishan to kill Dinesh. Apparently, that was one

of the reasons for their conviction simply under section 323.

The trial court further disbelieved the prosecution case that

Nain Pal and Kanwar Pal had given lathi bows to Dinesh on his

back and observed that this part of the prosecution story was 7

an addition to rope in the two accused and to bring them

within the mischief of section 149 of the Penal Code.

12. Apart from the three accused whose presence at the place

of occurrence was not accepted, the trial court also doubted

the presence of two out of the three eye witnesses, namely

Bhim Singh (PW-4) and Suresh Kumar (PW-6) at the time of

occurrence. The trial court further held that even Harkesh

(PW-2), the only remaining eye witness, had mixed-up truth

with falsehood but his testimony was not liable to be

discarded wholly since he had himself received injury in the

same occurrence. In regard to the injury sustained by Harkesh,

the trial court came to a truly amazing conclusion. It was the

specific case of the prosecution that the injury to Harkesh on

the thumb of his left hand was caused by a knife blow given by

Rambir while he was trying to save Dinesh and Harkesh in his

deposition before the court also attributed that injury to

Rambir. Rambir, however, was held by the trial court to be not

present at the place of occurrence. But the injury on the hand

of Harkesh was certainly in existence and it was also proved

by the medical evidence. The trial court resolved the

contradiction by fastening the injury to Harkesh too on to the

appellant Hari Kishan even though that was not the case of the

prosecution. The appellant Hari Kishan was, thus, held guilty

also of causing the knife injury to Harkesh and came to be

convicted under section 324 in addition to section 302 of the

Penal Code. Under section 324 he was sentenced to rigorous 8

imprisonment for one year. He was also convicted under section

25 of the Arms Act by a separate judgment of the trial court

dated February 2, 1998 in Sessions case No. 28 of 1995 and

sentenced to the period of imprisonment already undergone as

under-trial.

13. Against the two judgments of the trial court, three

appeals were filed in the High Court. One (Criminal Appeal No.

206-DB of 1998), by the appellant and the three other accused

convicted and sentenced by the trial court as noted above in

the main case; the second (Criminal Appeal No. 207-DB of

1998), by the appellant Hari Kishan alone against his

conviction under section 25 of Arms Act and the third appeal

(Criminal Appeal No. 379-DBA of 1998) was filled at the

instance of the State of Haryana against the acquittal of the

three accused from all charges and the acquittal of the other

three accused from the main charge of murder. Along with the

three appeals the complainant also filed a revision (Criminal

Revision No. 486 of 1998) agitating similar grievances as in

the State's appeal.

14. The High Court by the judgment and order coming under

appeal dismissed all the three appeals and the revision and,

thus, upheld the judgments of the trial court in all aspects.

15. Mr. J. L. Gupta, Senior Advocate, appearing for the

appellant assailed the High Court and the trial court

judgments and contended that the appellant's conviction for

the offence of murder was not sustainable both in law and on 9

facts. Mr. Gupta submitted that there were at least four

circumstances that falsified and completely demolished the

prosecution case. First, there was a patent contradiction

between the prosecution case and the motive assigned by it to

the accused for committing the crime. Secondly, it was

undeniable that injuries were fabricated both on the person of

the deceased and Harkesh, the only eye witness whose evidence

was accepted by the High Court and trial court. Thirdly, the

prosecution had indisputably tried to falsely implicate three

out of seven accused. Fourthly, the medical evidence

completely belied the alleged time and the manner of

occurrence.

16. Elaborating the points Mr. Gupta submitted that

according to the prosecution the main cause of conflict

between the two sides was the election of Suresh Kumar as the

village Sarpanch who did not pay any heed to the demands of

the accused. If that were so, the accused should have targeted

Suresh Kumar and not Dinesh. Suresh Kumar was admittedly

present at the time of the occurrence. He was unarmed and was

also physically disabled, yet no attempt was made to assault

him and he got away without a scratch and in his place Dinesh

was killed against whom the accused had no animus.

17. Mr. Gupta further submitted that even according to the

prosecution case it was a chance encounter. The accused

persons had no means to know that Dinesh would be coming from

his baithak to his house to pick up his clothes and would be 10

passing through that particular spot at that particular time,

so as to ambush him there, differently armed with gun, knife

and lathis.

18. Mr. Gupta next submitted that according to the

prosecution case Dinesh was first struck on his back by lathis

causing him to fall down on the ground. But in the post-mortem

examination, no mark of injury of any kind was found on the

back of the deceased. The post-mortem report further showed

that three incised wounds (Injuries 2, 3, and 4) were

inflicted on his body after he was dead. Obviously, those

three injuries could not be attributed to any of the accused.

In other words, the complainant had fabricated the injuries on

the dead body of Dinesh with intent to make out a false case

against the accused. Further, according to the post-mortem

report, the time elapsed between death and post-mortem report

was within eighteen hours. This, according to Mr. Gupta,

clearly showed that death had taken place sometime the

previous evening and not in the morning of June 24.

19. Mr. Gupta further stated that the stab by knife (Injury

No. 1) that caused the death of Dinesh had pierced through his

heart and would have naturally led to profuse bleeding.

Shortly after receiving the injury the body of Dinesh was

picked up from the ground by Harkesh (PW-2) and Bhim Singh

(PW-4) to place him in the truck. And yet in reply to

questions in the cross-examination Harkesh stated that his

clothes or the clothes of Bhim Singh were not stained with 11

blood. No blood stained clothes of Harkesh or Bhim Singh were

produced before the police.

20. All these circumstances, according to Mr. Gupta,

strongly indicated that the death of Dinesh did not take place

in the manner and at the time as claimed by the prosecution.

21. Mr. Gupta further submitted that the conviction of the

appellant was based solely on the testimony of Harkesh whose

presence at the time of occurrence was extremely doubtful. He

once again referred to the medical evidence to support his

submission that Harkesh had not received the injuries in the

morning of June 24 when Dinesh was alleged to have been killed

and hence, he could not have been present at the time of

occurrence and he falsely claimed to be an eye witness of the

occurrence.

22. On hearing Mr. Gupta and Mr. Alok Sangwan appearing for

the State and on going through the judgments of the High Court

and the trial court and the evidence on record we find that

the submissions of Mr. Gupta are not entirely without

substance and at least some of the points raised by him

deserve serious consideration.

23. It is seen above that the trial court doubted the

presence of Bhim Singh (PW-4) & Suresh Kumar (PW-6) at the

place of occurrence and did not accept their testimonies as

eye witnesses. Even in regard to Harkesh (PW-2), the only eye

witness remaining in the case, the trial court observed that

he had mixed up falsehood with truth. Nevertheless, it did not 12

reject his testimony as a whole and accepted his evidence as

regards the knife blow given to Dinesh by the appellant

because "he (PW-2) had some injuries in that incident as is

clear from the statement of Dr. Krishan Kumar (PW-3)" and

hence, the presence of Harkesh (PW-2) at the place of

occurrence could not be doubted. The High Court has also

adopted the same approach and it has described Harkesh as an

"injured witness". Mr. Gupta questioned the very premise that

the injuries found on the person of Harkesh were caused in the

same incident in which Dinesh was killed and which, according

to the prosecution case, had taken place in the morning of

June 24 and submitted that the trial court and the High Court

had completely misread the medical evidence.

24. According to the prosecution, the occurrence in which

Dinesh was killed took place shortly after 6.15 in the morning

of June 24. Harkesh was medically examined at 7.10 and Kanti

Prakash at 7.15 am respectively, that is to say, within an

hour when the wounds/injuries on their person would be very

fresh.

25. But the injury report of Harkesh disclosed as follows:

"1) An incised wound on left hand between the thumb and index finger. 0.3 cm x 0.2 cm skin deep clotted blood was present on the wound.

2) Four contusions Parallel to each other present on the left shoulder and upper part of chest, horizontally placed reaching on the upper arm anteriorally in the area 8"x4" red in colour.

3) A contusion on right upper arm on the meddle 1"x05" cm red in colour.

Injury No. 1 was caused by sharp edged weapon and 13

injury No(s). 2 and 3 were caused by blunt weapon. Nature of injuries were simple, duration was 12 hours"

The injury report of Kanti Prakash noted as follows:

"1) An abrasion and contusion on the parietal region of scalp in the vertex in the mid lone 11/2 x1cm blood was oozing.

The injury was simple, caused by blunt weapon. The probable duration was 12 hours".

Further PW-3, the doctor who examined Harkesh and Kanti

Prakash, in cross-examination, deposed before the court as

follows:

"It is correct that the injuries on both these injured have been caused probably on 23/6/95 between 6 PM and 8 PM."

26. Thus, according to the medical evidence, injuries on

Harkesh were caused on the evening previous to the morning of

June 24, when Dinesh was killed in the alleged occurrence.

This takes away the basis on which he was accepted by the

trial court and the High Court as an eye witness

notwithstanding his proclivity to mix up falsehood with truth.

27. The submission that Harkesh had received the injuries on

the evening of June 23 and not in the morning of June, 24

gains credence from the fact that an incident between the two

sides had admittedly taken place on the evening of June 23,

1995.

28. In regard to the incident on the evening of June 23,

1995, Harkesh (PW-2) stated as follows:

"On 23.6.95 there was an altercation between the accused and us and it was compromised with the 14

interventions of the respectable of the village."

As regards the incident on the evening of June 23, Harkesh

further stated in his cross-examination that:

"Bhim PW was not present at the time of earlier altercation on the previous day i.e. 23.6.95. That altercation lasted for 2 minutes. About 50/60 persons had collected including ladies had collected at that time. There are 4/5 houses near the Chaupal where this altercation took place."

29. In the face of the medical evidence and the admitted

position that an incident between the two sides had taken

place on the evening of June 23, 1995 it is difficult to

accept that the injuries found on the person of Harkesh were

received by him in the morning of June 24. From this, either

of two inferences would logically follow. One, Harkesh was not

present at the occurrence in which Dinesh was killed in the

morning of June 24; or the other, the occurrence in which

Dinesh was killed did not take place in the morning of June 24

and he was not killed in the manner as suggested by the

prosecution. Both the inferences are equally damaging to the

prosecution case.

30. Summing up the discussions made up, we have before us a

case where a substantial part of the prosecution story has

been disbelieved and the conviction of the appellant rests

solely on the testimony of Harkesh (PW-2) who does not seem to

have particular respect for truth as observed by the trial

court. His credibility as an eye witness lay only in that the

trial court and the High Court assumed that he had received 15

injuries in the same occurrence in which Dinesh was killed. As

shown above that assumption does not appear to be very sound

and is not borne out by the evidences on record. In such a

situation, we find it highly unsafe to uphold and sustain the

appellant's conviction for the offence of murder. To us, it

appears that the prudent and safe course would be to give him

the benefit of doubt.

31. We, accordingly, allow the Criminal Appeal No. 133/09

and set aside the judgments of the High Court and the trial

court and acquit him of the charges under sections 302 & 324.

Criminal Appeal No. 134/09 relating to his conviction under

section 25 of the Arms Act was not pressed, presumably because

the conviction no longer carries any sentence. This is,

accordingly, dismissed.

32. The appellant Hari Kishan is directed to be released

forthwith if he is not wanted in any other case.

.............................................J [ AFTAB ALAM ]

.............................................J [ DR. B.S. CHAUHAN ]

New Delhi;

January 6, 2010.