Prithi vs State Of Haryana

fired a shot which hit the tyre of the jeep. A-1, A-2, A-3, A-4 and

A-5 then rushed towards the Jeep. A-4 fired shot at Ami Lal

while A-1 fired shot that hit Sant Lal. All the occupants of the

jeep, viz., PW-6, PW-9, Ami Lal and Sant Lal jumped out of the

jeep. A-5 fired a shot at PW-6 but that hit the jeep. PW-6, PW-

9 and Sant Lal ran away in different directions. Ami Lal was

overpowered by the attacking party by firing shots at him. A-5

2 fired another shot at PW-6 which hit him on the back of his left

shoulder. The attacking party took away Ami Lal (already dead

by that time) in their vehicle (gypsy). PW-6 after running for

some time reached village Chhinder where one Prithi Singh,

son of Ram Pratap Bishnoi took him to Civil Hospital and got

him admitted and then on the intimation sent by the doctor,

police reached the Civil Hospital, recorded statement of PW-6

and FIR was got registered at police station, Adampur for the

murder of Ami Lal and other offences. The police after

completion of investigation submitted challan against A-1, A-2,

A-3 and A-4. The name of the appellant was put in column no.

2. However, the Additional Sessions Judge vide his order dated

August 27, 1993 summoned A-5 and framed charges against

all the five accused persons under Section 302 read with

Section 149, Section 307 read with Sections 149, 148 and 201

of the Indian Penal Code (for short `IPC'). The prosecution

examined as many as 14 witnesses. The trial court (Additional

Sessions Judge, Hisar) vide his judgment dated March 20,

1993 convicted the accused persons (A-1, A-2, A-3, A-4 and A-

5) for the offences punishable under Section 302 read with

3 Section 149, Section 307 read with Sections 149, 148 and 201

IPC and sentenced them to undergo life imprisonment and

different period of rigorous imprisonment.

2. A-1 to A-5 preferred criminal appeal before the High

Court of Punjab and Haryana challenging their conviction and

the sentence. The High Court vide its judgment dated

September 12, 2008 dismissed the appeal and maintained their

conviction and sentence.

3. A-1, A-2 and A-4 filed special leave petition

[SLP(Crl.) No. 236 of 2009] against the impugned judgment

which came to be dismissed by this Court on January 23, 2009.

Insofar as A-3 is concerned, he filed a separate special leave

petition in which leave was granted. His appeal was dealt with

by us separately as he was juvenile on the date of the incident

and disposed of on June 25, 2010.

4. Mr. Neeraj Kumar Jain, learned senior counsel for

the appellant at the outset disputed the factum of death of Ami

Lal. He submitted that admittedly the dead body of Ami Lal was

not recovered nor any post-mortem was conducted. He referred

to the application for bail filed by some of the accused persons

4 during the course of trial and submitted that one Ami Lal was

arrested in Rajasthan and produced before the Judicial

Magistrate in Jodhpur and while considering that application,

the High Court granted time to the police to verify whether Ami

Lal was alive or dead but the investigating agency failed to

verify whether Ami Lal, who was produced before the Judicial

Magistrate, Jodhpur, was the same person who is alleged to

have been murdered or some other person. Dealing with the

prosecution evidence, learned senior counsel submitted that

the deposition of PW-6 ought to be accepted either as it is or

should be rejected in toto. He submitted that since PW-6 was

cross-examined by the accused, there was no question of their

winning over PW-6. Learned senior counsel, thus, submitted

that deposition of PW-6 should have been rejected in its

entirety. As regards the evidence of PW-9, Mr. Neeraj Kumar

Jain, learned senior counsel, vehemently contended that he

was not present at the time and place of incident and he has

been planted as eye-witness by the prosecution. He would

submit that the narration of the occurrence by PW-9 appears to

be improbable; he is highly interested witness being brother of

5 the deceased and his evidence ought not to have been

accepted by the trial court as well as High Court. Learned

senior counsel submitted that the appellant has been falsely

implicated due to enmity between Bhoop Singh and the

deceased on one hand and A-4 (relative of the appellant) on

the other hand. In any case, learned senior counsel submitted

that from the prosecution evidence the presence of the

appellant at the scene of occurrence remains highly doubtful.

5. On the other hand, Mr. Kamal Mohan Gupta,

learned counsel for the State of Haryana stoutly defended the

judgment of the High Court. He submitted that PW-9 has given

graphic description of the incident; his presence is established

by the prosecution evidence, particularly deposition of PW-6

and his evidence also gets corroborated from the fact that from

the place of incident one single barrel of .12 bore gun and also

large number of cartridges were recovered. Learned counsel

would submit that merely because PW-9 remained at the spot

till the police came and did not call for help nor informed the

villagers does not show that he was not present. He submitted

that different persons react differently in different situations.

6 Learned counsel relied upon a decision of this Court in Marwadi

Kishor Parmanand and another v. State of Gujarat1. Insofar as

evidence of PW-6 is concerned, learned counsel for the State

submitted that he supported the prosecution case to the extent

that he lodged the FIR; he was injured in the incident; he saw

white gypsy at the place of incident and some persons lying in

ambush fired shots as a result of which he sustained injuries

and Ami Lal died. He did not name the assailants and to that

extent he did not support prosecution case but that did not

mean that his evidence was liable to be rejected in toto.

Responding to the contention of the learned senior counsel for

the appellant that there was nothing in the prosecution

evidence to establish the murder of Ami Lal, learned counsel for

the State submitted that merely because the dead body of Ami

Lal was not recovered, it cannot be said that Ami Lal was not

murdered. He referred to the deposition of PW-9 who stated

categorically that Ami Lal had died due to the injuries received

by him from the shots fired by the accused and the accused

had taken away the dead body of Ami Lal in their vehicle. In this

regard, learned counsel relied upon a decision of this Court in 1 (1994) 4 SCC 549

7 Sevaka Perumal and Anr. v. State of Tamil Nadu2. Mr. Kamal

Mohan Gupta strenuously urged that the trial court as well as

the High Court have recorded concurrent findings regarding the

presence of the appellant along with other accused at the place

of incident and his participation and accepted the prosecution

case as credible and there is no justification at all by this Court

to reweigh and reassess the evidence and reach a fresh

opinion as to the innocence or guilt of the accused. Learned

counsel relied upon the decisions of this Court in Pritam Singh

v. The State3, Naresh Mohanlal Jaiswal v. State of

Maharashtra4, Anwarul Haq v. State of U.P.5

6. Since the question of factum of death of Ami Lal has

been raised, we have to see what is the proof of death of Ami

Lal. In other words, the question relates to the proof of `corpus

delicti'. The expression `corpus delicti' has been subject of

judicial comments from time to time. The term, `corpus delicti'

generally means; when applied to any particular offence, the

actual commission by some one of the particular offence

2 (1991) 3 SCC 471 3 (1950) SCR 453 4 (1996) 11 SCC 547 5 (2005) 10 SCC 581

8 charged (Words and Phrases, Vol. 9A, 2nd reprint, 1976, West

Publishing Co.) In a murder case, `corpus delicti' consists of

proof of the death of a person alleged to have been murdered

and that such death has been caused by commission of crime

by some one. It is sound principle in criminal jurisprudence that

one does not begin to inquire whether the prisoner is guilty of a

crime until one has established that a crime has been

committed.

7. Sir Matthew Hale (Lord Chief Justice of the Court of

King's Bench) in `The History of the Pleas of the Crown', Vol. II

at page 290 (1800 Edition) stated his opinion, `I would never

convict any person of murder or manslaughter, unless the facts

were proved to be done, or at least the body found dead'.

8. The aforesaid statement of Sir Matthew Hale has

not been accepted in England, Ireland, New Zealand and other

common law countries as it is. In England the legal position is

stated in 9 Halsbury's Laws of England, 2nd Edition 449 thus:

where no body or part of a body has been found which is

proved to be that of the person alleged to have been killed, an

accused person should not be convicted of either murder or

9 manslaughter, unless there is evidence either of the killing or of

the death of the person alleged to be killed.

9. A six-Judge Bench of Irish Court of Crown in the

case of Rex v. Patrick McNicholl6 speaking through Sir James

Campbell, C.J., with regard to the statement of Sir Matthew

Hale, said that it is not an inflexible legal maxim, but is a wise

and necessary caution to be addressed by the presiding Judge

to the jury. The Bench held that in a charge of murder, by

proof of the corpus delicti is meant proof of the factum of

murder, and that the accused committed the murder or took

part in its commission. Such proof may be established by the

confession of the accused without proof of the finding of the

dead body.

10. In The King v. Horry7, the New Zealand Court of

Appeal explained the legal position that at the trial of a person

charged with murder, the fact of death is provable by

circumstantial evidence, notwithstanding that neither the body

nor any trace of the body has been found.

6 1917 (2) I.R. 557 7 1952 NZLR 111

10

11. Insofar as this Court is concerned, it has been laid

down in Sevaka Perumal2 that it is not essential to establish

corpus delicti; the fact of the death of the deceased must be

established like any other fact. This Court said;

"......In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti. The fact of death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. Take for instance that a murder was committed and the dead body was thrown into flowing tidal river or stream or burnt out. It is unlikely that the dead body may be recovered. If recovery of the dead body, therefore, is an absolute necessity to convict an accused, in many a case the accused would manage to see that the dead body is destroyed etc. and would afford a complete immunity to the guilty from being punished and would escape even when the offence of murder is proved. What, therefore, is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder, like any other factum of death was committed and it must be proved by direct or circumstantial evidence, although the dead body may not be traced."

12. Sometimes, there may not be any distinction

between proof of the fact of the crime and the proof of the actor

of it. The evidence of the corpus delicti and the guilt of the

person charged of an offence, many a time is so inter-

connected that one cannot be separated from the other. The

11 same evidence often applies to both the fact of the crime and

the individuality of the person who committed it. The question

now is, whether the prosecution evidence establishes that Ami

Lal was murdered and the commission of crime is made out

against the appellant.

13. The key witness is PW-9. He has been presented

by the prosecution as an eye-witness. He has given full account

of the incident. This witness has been held credible by the trial

court as well as High Court. The criticism to the deposition of

this witness highlighted by the defence has been considered by

the trial court elaborately and after finding no merit in such

criticism, the trial court after thorough analysis summed up with

meticulous care the evidence of PW-9 thus :

"26.....As discussed above statement made by Chotu Ram has withstood the test of lengthy cross- examination. There is nothing to dis-believe him..........

27. The fact that Chhotu Ram remained at the spot till 3.30 p.m. When the police came to the spot does not prove that he was not present at the spot.......So the conduct of Chhotu Ram of concealing himself in the crop and not leaving the place till the arrival of the police does not prove that he was not present at the spot and does not make his statement unbelievable. The mere fact that he did not call any one for help and did not visit

12 his Dhani after the accused had left the place does not make his statement unbelievable.

28. Thus from the evidence discussed above it has duly been proved that the statement of Chhotu Ram it trust-worthy and from his statement it has duly been proved that the occurrence took place in the manner and at the place as stated by the prosecution."

14. Insofar as High Court is concerned, the Division

Bench extensively considered the deposition of PW-9 in the

following manner :

"We have carefully examined the evidence of Chhotu Ram PW9, one of the eye witnesses to the occurrence. He has given a vivid account of the entire sequence of events and has fully supported the prosecution case. The defence has not been able to make any dent in his deposition during cross-examination. He has clearly stated that on 3rd October, 1990, he along with Ami Lal, Sant Lal and Hari Singh were going from village Bhodia Bishnoian to village Badopal in a jeep bearing registration no. DNC-9324. When they were crossing the cremation ground near village Bhana, a white gypsy was seen standing near the cremation ground. Hari Singh stopped the jeep. Five accused i.e. Jee Ram, Ram Singh son of Sahi Ram, Ram Singh son of Ram Karan, Pirthi and Mahabir, emerged from the bushes. Jee Ram was armed with a rifle whereas other accused were armed with guns. All the accused started firing on the jeep. A shot hit Ami Lal, who was sitting on the front seat. The occupants of the jeep started running in different direction to save their lives. Hari Singh and Sant Lal also received gun shot injuries. However, they were able to run away from the spot. He further stated that he concealed himself in the nearby crops and witnessed the entire occurrence from there. Even when

13 all occupants of the Jeep, except Ami Lal, had run away, the accused came near the jeep and fired at Ami Lal from a close range. Thereafter, they lifted the dead- body of Ami Lal, put the same in the gypsy and sped away from the spot. The police came to the spot at about 3.00 P.M. On the basis of his information, a site- plan of the place of recovery was prepared and 47 empties were recovered, out of which 45 were empty cartridges of .12 bore, one missed cartridge of .12 bore and one empty cartridge of .315 bore. The Investigating Officer also took into possession the pellets and the jeep etc. This witness further stated that there was enmity between Ami Lal and the accused as Ami Lal had murdered Bhagi Ram, who was brother of Jee Ram accused. The accused, therefore, wanted to avenge the murder of Bhagi Ram.

Chhotu Ram was cross-examined by the defence but he withstood the same and the defence was not able to extract anything substantial from him during the cross-examination. Chhotu Ram's version tallies with the initial version given in the FIR and there is no reason to disbelieve the same. The factum of recovery of so many empty cartridges from the scene of occurrence, the injuries suffered by Hari Singh and Sant Lal, lend sufficient credence to the testimony of this witness. His version that he was hiding in the fields is quite believable as in such a case of firing by number of people, he would have no option but to hide himself for fear of his life."

15. It is, thus, seen that PW-9 has been accepted by

the trial court as well as the High Court as a reliable witness.

Once PW-9 is accepted, his evidence proves the fact of death

of Ami Lal and also renders the commission of crime by the

accused (including the appellant) certain. It is true that he is

related witness inasmuch as he happens to be the brother of

14 the deceased but that, in our view, would not render his

evidence unworthy of credence. Nothing inherently improbable

has been brought out which may justify rejection of the

testimony of PW-9. His conduct of having stayed behind the

bushes for about 4/5 hours and not informing the police or

villagers of the incident until the police arrived on scene at

about 3.00 p.m. may look at the first blush little out of the

ordinary but on a deeper scrutiny, does not appear to be

unusual or exceptional. He was scared as he saw

indiscriminate firing by the accused who were armed with guns

and rifles; his brother was dead and removed by the assailants

and the other two persons who were with him got firearm

injuries. It may be that any other person in his place might

have reacted differently but the conduct of PW-9 in any case

does not seem to be improbable. Moreover, his presence at the

time and place of incident is also established from the

evidence of PW-6. In the FIR, it is recorded that PW-9 was

with PW-6 in the Jeep. The evidence of PW-9 further gets

corroborated by the recovery of a gun and empty as well as

unused cartridges from the site.

15

16. As regards the evidence of PW-6, it was

vehemently contended by the learned senior counsel for the

appellant that his evidence should be either accepted as it is or

rejected in its entirety. PW-6 has deposed that he lodged the

FIR; he was injured in the incident; he saw white gypsy at the

place of the incident and that some persons came out of

ambush and fired shots as a result of which he sustained

injuries and Ami Lal died. It is true that he did not name the

assailants. The fact that an incident occurred in which he

sustained injuries and Ami Lal died is amply established by his

evidence as well. That PW-6 sustained injuries is also

established from the evidence of Dr. Ajay Kumar (PW-1) who

medically examined him immediately after the incident. Merely

because he did not name the assailants, his evidence cannot

be thrown over-board in its entirety.

17. Section 154 of the Evidence Act, 1872 enables the

court in its discretion to permit the person who calls a witness to

put any questions to him which might be put in cross-

examination by the adverse party. Some High Courts had

earlier taken the view that when a witness is cross-examined

16 by the party calling him, his evidence cannot be believed in part

and disbelieved in part, but must be excluded altogether.

However this view has not found acceptance in later decisions.

As a matter of fact, the decisions of this Court are to the

contrary. In Khujji @ Surendra Tiwari v. State of Madhya

Pradesh8, a 3-Judge Bench of this Court relying upon earlier

decisions of this Court in Bhagwan Singh v. State of Haryana9,

Sri Rabindra Kumar Dey v. State of Orissa10 and Syad Akbar v.

State of Karnataka11 reiterated the legal position that the

evidence of a prosecution witness cannot be rejected in toto

merely because the prosecution chose to treat him as hostile

and cross-examined him. The evidence of such witnesses

cannot be treated as effaced or washed off the record

altogether but the same can be accepted to the extent their

version is found to be dependable on careful scrutiny thereof.

18. In Koli Lakhmanbhai Chanabhai v. State of

Gujarat12, this Court again reiterated that testimony of a hostile

witness is useful to the extent to which it supports the

8 (1991) 3 SCC 627 9 (1976) 1 SCC 389 10 (1976) 4 SCC 233 11 (1980) 1 SCC 30 12 (1999) 8 SCC 624

17 prosecution case. It is worth noticing that in Bhagwan Singh9

this Court held that when a witness is declared hostile and

cross-examined with the permission of the court, his evidence

remains admissible and there is no legal bar to have a

conviction upon his testimony, if corroborated by other reliable

evidence.

19. The submission of the learned senior counsel for

the appellant that the testimony of PW-6 should be either

accepted as it is or rejected in its entirety, thus, cannot be

accepted in view of settled legal position as noticed above.

20. We have already noticed evidence of PW-9. He

has been held trustworthy by the trial court as well as the High

Court. There is no reason, much less justifiable one, for us to

take a different view. He is real brother of Ami Lal. The direct

evidence of PW-9 leaves no manner of doubt that Ami Lal is

dead and the members of the unlawful assembly (including the

appellant) armed with deadly weapons are responsible for his

death. In this view of the matter, the submission of the learned

senior counsel that one Ami Lal was arrested in Rajasthan and

produced before the Judicial Magistrate in Jodhpur and that

18 police failed to verify, despite the direction of the High Court, as

to whether that Ami Lal was the same person who is alleged to

have been murdered or some other person and, therefore,

factum of death of Ami Lal is not established has no merit at all

and is noted to be rejected.

21. In the case of Anant Chintaman Lagu v. The State

of Bombay13, M. Hidayatullah, J. (as His Lordship then was)

stated:

"Ordinarily, it is not the practice of this Court to re- examine the findings of fact reached by the High Court particularly in a case where there is concurrence of opinion between the two Courts below. ...."

22. In an appeal under Article 136 of the Constitution,

this Court does not enter into detailed examination and re-

appraisal of the evidence, particularly when there is

concurrence of opinion between the two courts below. We,

however, carefully examined the evidence of PW-9 and the

other evidence available on record and we are satisfied that no

error has been committed by the High Court in affirming the

conviction of the appellant for the offences punishable under

13 (1960) 2 SCR 460

19 Section 302 read with Section 149, Section 307 read with

Sections 149, 148 and 201 IPC.

23. The appeal has no merit and is dismissed

accordingly.

..............................J (R. M. Lodha)

.............................J (A. K. Patnaik)

New Delhi.

July 27, 2010.

20 21