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CASE NO.:

Appeal (crl.) 425 of 1996

PETITIONER:

THAMAN KUMAR

RESPONDENT:

STATE OF UNION TERRITORY OF CHANDIGARH

DATE OF JUDGMENT: 06/05/2003

BENCH:

S. RAJENDRA BABU & G.P. MATHUR

JUDGMENT:

JUDGMENT

2003 (3) SCR 1190

The Judgment of the Court was delivered by

G.P. MATHUR, J. These appeals under Section 2 of Supreme Court (Enlargement

of Criminal Appellate Jurisdiction) Act, 1970 have been preferred against

the judgment and order dated 27.3.1996 of High Court of Punjab and Haryana

at Chandigarh by which the appeal preferred by the State was allowed and

the judgment of acquittal passed by the learned Sessions Judge, Chandigarh

was set aside and the appellants were convicted under Section 302 read with

Section 34 IPC and were sentenced to imprisonment for life and a fine of

Rs. 2,000 each and in default to undergo Six months R1.

The case of the prosecution in brief is that the appellant Ashok Kumar (A-

l) is owner of house no. 138 in Sector 35, Chandigarh which had been

converted into a guest house known as Friends Guest House .Thaman Kumar

(A-2) and Rajesh Singh (A-3) were employed as servants in the aforesaid

guest house. The deceased Bhanwar Singh was a rickshaw puller and he used

to bring customers to the guest house for which Ashok Kumar (A-l) used to

Pay him commission. Sometimes he used to sleep in the garage of the guest

house. A considerable amount towards commission, it is alleged, had fallen

due regarding which he made a demand in the night of 23.12.1989 and a

dispute took place. At about 12.30 p.m. in the night A-2 and A-3

strangulated Bhanwar Singh by tying a chadar which had been rolled in the

shape of a rope around his neck and pulling it from the two ends. At that

time, A-l sat over the chest of the deceased and had caught his both the

hands firmly so that he may not be in a position to offer any resistance.

Constables Ram Mehar and Suresh Kumar, who had been assigned patrol duty in

Sector 35 were passing in front of house no. 138 and heard shrieks raised

by deceased Bhanwar Singh. They entered the house after opening the front

gate and saw the incident happening in the grange in which electric light

was on and the doors were slightly open. They caught hold of A-2 and A-3 on

the spot but A-l managed to escape by scaling the rear boundary wall.

Suresh Kumar then gave information about the incident at about 1.05 hours

to Police Post in Sector 36 by telephone. Surender Kumar, SI, then came to

the spot, took stock of the situation and recorded the statement of Ram

Mehar, Constable. He then gave a Rukka to Suresh Kumar, Constable which he

took to the Police Station in Sector 39 on the basis of which an FIR was

registered at 02.20 a.m. on 24.12.1989. Surender Kumar, SI, also held

inquest on the body of the deceased Bhanwar Singh. The body was sealed and

was sent for post-mortem examination. After completing investigation, he

submitted charge-sheet against all the three accused.

The Judicial Magistrate, First Class, Chandigarh by his order dated

16.4.1990 committed the case to the Court of Sessions. The learned Sessions

Judge framed charge under Section 302 read with Section 34 IPC against all

the three accused who denied the case of the prosecution and claimed to be

tried. The prosecution in support of its case examined 11 witnesses

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including 2 eye-witnesses and filed some documentary evidence. Ashok Kumar

(A-l) in his statement under Section 313 Cr.P.C. denied the case of the

prosecution, but admitted that the guest house in Kothi No. 138, Sector 35

was run by his brother Om Prakash and he also looked after the same. He

stated that when he was sleeping in his house, Rajesh Singh (A-3) came

there at about 12.30 in the night and informed him about the presence of a

dead body in the garage of the guest house. He then went to the guest house

and after seeing the dead body, he informed the police, which came there

and arrested him and other co-accused or the spot at that very time in

spite of their protests. Thaman Kumar (A-2) also denied the case of the

prosecution and stated that he and Rajesh Singh were working in the guest

house and used to sleep in a room, which was situate on the back side of

the garage. Rajesh Singh awoke him at about mid-night and told that a dead

body was lying in the garage. Rajesh Singh then went to inform the owner of

the guest house and thereafter A-l came there, who informed the police. The

Police then came to the spot and arrested all the three accused. Rajesh

Singh (A-3) also gave a similar statement.

The learned Sessions Judge disbelieved the case of the prosecution and

acquitted all three accused by his judgment and order dated 22.8.1990.

Feeling aggrieved, the State of Union Territory at Chandigarh preferred an

appeal which was allowed by the High Court by the judgment and order dated

27.3.1996 and all the three accused were convicted and sentenced as

mentioned earlier.

We have heard Shri Sushil Kumar, learned Senior Advocate for A-l, Shri M.N.

Rao, learned Senior Advocate for A-2 and A-3 and Ms. Kamini Jaiswal,

Advocate for the State and have gone through the entire evidence on record.

Before we deal with the contentions raised by learned counsel for the

appellants, it will be convenient to take note of the evidence which has

been adduced by the prosecution.

PW.4 Ram Mehar, Constable, has stated that he along with Constable Suresh

Kumar had been assigned patrol duty in Sector 35 in the night intervening

23rd and 24th December, 1989. He left the Police Post at 10.00 p.m. and

after going around the market in Sector 35 and 35-B, they were passing near

Kothi No. 13i! in Sector 35 at about 12.30 in the night (00.30 hours on

24.12.1989). After hearing shrieks from inside the Kothi, both of them

entered the compound after opening the front gate and saw that in the

garage, where there was electric light, two persons namely A-2 and A-3 were

strangulating Bhanwar Singh by tying a bed sheet around his neck and A-l

was sitting on his chest and was pressing his arms. After seeing the police

personnel, A-l ran away by scaling the rear boundary wall. A-2 and also A-3

tried to run away but they were caught on the spot. He gave information

about the incident to Police Post in Sector 36 by telephone. Some time

thereafter, PW.l 1 Surender Kumar, SI, came there, who recorded his

statement, which is Ex.PH. He was given a Rukka by PW.l 1 which he carried

to Police Station, Sector 39 and on the basis of the same, the FIR of the

occurrence was formally registered at 2.20 a.m. on 24.12.1989. The other

eye-witness examined by the prosecution is PW 5, Suresh Kumar, Constable.

He has given exactly similar statement and has corroborated the version

given by PW.4 Ram Mehar Constable.

PW.l Dr. P.N. Gupta of General Hospital Sector 16, examined accused Thaman

Kumar (A-2) on 24.12.1989 and found the following injury on his person:

"Reddish contusion situated on ulna aspect of right hand (inner). The

contusion size was diffused of about 5 cm x 2 cm.

Nature of injury was simple, caused by blunt weapon and probable duration

was within six hours."

After seeing the 'Chadar' Ex.P1, the witness stated that the possibility of

the injury having been caused as a result of pulling of the same could not

be ruled out. The post-mortem on the body of the deceased Bhanwar Singh was

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conducted jointly by Dr. A.S. Gill, Senior Medical Officer and PW.2 Dr. G.

Dewan Medical Officer, General Hospital Sector 16. The following ante-

mortem injury was found on the body of the deceased :

"Ligature mark brown coloured encircling whole of neck measuring 39 cms,

all around the neck 1\2 cms. on the sides and back and 2 cms. in front of

the neck anteriorly placed on the thyroid cartilage horizontally margins

were irregular, ecchymosed and base of ligature was dry and parchment like

and membranous. On cut Section there were multiple ecchymotic spots on

subcutaneous tissue and muscles. Thyroid cartilages was broken cricoid

cartilage was also broken.

Larynx and trachea-Mucosa of larynx and treachae were conjested and showed

multiple petichial spots. Both right and left lungs were conjested. Stomach

was empty and healthy."

In the opinion of the Doctors, death was caused due to asphyxia caused by

strangulation. The post-mortem report has been proved by PW.2 Dr. G. Dewan.

PW.7 Sardara Singh, who is the brother of the deceased, was examined in

order to prove the motive for the commission of the crime, but he did not

support the case of the prosecution and turned hostile. He denied to have

given any statement to the police to the effect that the deceased Bhanwar

Singh used to take persons to the guest house for which he was paid

commission by the owners and that A-l owed him Rs. 42,000 towards the

aforesaid amount. PW.5 Mohinder Singh, Head Constable, Police Post, Sector

36 proved the extracts of Daily Diary Report (DDR) of 23rd and 24th

December, 1989, which have been marked as Ex. PK, EX.PL, EX. PM and EX.PN.

PW.9 Jasbir Singh in-charge of Police Post, Sector 36, deposed that he had

gone to the spo: at 3.30 a.m. on 24.12.1989 and at that time PW. 11,

Surender Kumar, SI, was present and was investigating the case. He further

deposed that A-l was produced by Gurnam Singh, a member of village

Panchayat, on 24.12.1989 and he was taken into custody. PW. 11 Surender

Kumar, SI in police Post Sector 36 deposed that he received a telephonic

message at about 1.05 a.m. on 24.12.1989 from PW.4, Ram Mehar, Constable

from Kothi No. 138, Sector 35, and thereafter the rushed there along with

some other constables. He found the dead body of Bhanwar Singh lying on the

floor of the garage and a rolled over bed sheet was lying near the head of

the dead body. A-2 and A-3 were also present on the spot in the custody of

the two constables. He then recorded the statement of PW.4, Ram Mehar,

which was read over to him and after he has signed the same, it was sent to

the Police Station, Sector 39 and a formal FIR was recorded. He has further

deposed that he held inquest on the body of the deceased, took the bed

sheet and other articles into his possession and sent the body of Bhanwar

Singh for post-mortem examinatior. He also sent A-2 for medical examination

as there was an injury on his hand. He has given details of the various

steps taken by him during the investigation of the case. PW. 10, KIP Singh,

SHO of Police Station, Sector 39, has deposed that after receiving

information, he went to the Friends Guest House in Sector 35 and found that

Surender Kumar, SI was already present there and was conducting

investigation of the case. He has further deposed that after completing the

investigation he prepared the charge-sheet and submitted the same. PW. 3

Jaswant Singh is draftsman, who prepared the site plan, Ex. PG on the

pointing out of Surender Kumar and has proved the same.

According to the statements of A-2 and A-3 under Section 313 Cr.P.C. both

were working in the guest house and both of them used to sleep in a room on

the back side of the garage. At about mid-night A-3 woke up and after

finding that a dead body was lying in the garage informed A-2 about it and

also went to inform the owner of the guest house. Shortly thereafter, A-1

came to the guest house and informed the police and it was thereafter that

the police came to the spot and arrested all of them. A-l has also stated

that after getting information about the presence of a dead body in the

garage of the guest house from A-3 he came there at 12.30 in the night and

informed the police, which arrived on the scene and arrested all of them.

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Thus, A-2 and A-3 admit their presence and further all the three accused

also admit the presence of the dead body of deceased Bhanwar Singh in the

garage of the guest house. But, according to their version, the police

arrived at the scene on the information given by A-l. The version of

prosecution, however, is that PW.4 Ram Mehar and PW.5 Suresh Kumar heard

some shrieks when they were passing in front of the guest house (Kothi No.

138) and they saw the accused strangulating the deceased Bhanwar Singh in

the garage. It is to be examined as to which of the two versions is

correct. Ex. PK is copy of entry no.45 made at 9.30 p.m. on 23.12.1989 in

DDR of Police Post Sector 36 and it records that Constables Ram Mehar and

Suresh Kumar had been deputed for night patrol duty in Sector 35. Ex.PL is

the copy of entry made at 1.05 a.m. on 24.12.1989 in DDR of Police Post

Sector 36 and it records that Constable Ram Mehar had given information on

telephone that some fight was going on and three persons had assaulted a

man in Kothi No. 138 in Sector 35. After receiving this information

Surender Kumar, SI. along with some other police personnel were sent to the

place of occurrence. PW. 4 has stated that he searched for a telephone in

the guest house and it took him about 20-25 minutes to find the same as

rooms in the guest house were bolted from inside. The entry made in DDR of

Police Post Sector 36 at 1.05 a.m. corroborates the testimony of PW 4 and

P.W5. It may be noticed that at the time when this information was given by

PW. 4, other police personnel were not present on the spot as PW. 11

Surender Kumar, SI came there subsequently. The two constables could not

have cooked up a false story regarding three persons assaulting a man in

the short period which elapsed between their reaching there and in giving

telephonic information at about 1.05 a.m. Ex. PM is copy of the entry made

at 2.20 a.m. on 24.12 1989 in DDR No. 52 of Police Station Sector 39

regarding lodging of the FIR of the incident on the basis of which a case

was registered as Crime No. 303 of 1989 under section 302 read with Section

34 I PC. Ex. PH/12 is the copy of the FIR and it bears an endorsement that

a copy of the same was received by the Ilaqa Magistrate at 4.00 a.m. on

24.12.1989. These documents have been proved by PW. 8 Mohinder Singh. The

statement of PW. 2 Dr. G. Dewan shows that the dead body was deposited in

the mortuary at 4.15 a.m. on 24.12.1989. The fact that the copy of the FIR

was received by the llaqa Magistrate at 4.00 a.m. conclusively establishes

that the FIR containing full details of the prosecution version of the

incident had been actually lodged much earlier. The documentary evidence

and also the promptness with which the FIR was lodged, its copy was sent to

llaqa Magistrate and the body was sent to the mortuary lends great

assurance to the truthfulness of the prosecution case. The medical evidence

on record also corroborates the testimony of the eye-witnesses. Surencer

Kumar, SI had noticed an injury on the hand of A-2. PW.l Dr. P.N. Gupta,

examined A-2 on 24.12.1989 and found a reddish contusion 5 cm x 2 cm in

size on the unla aspect of right hand (inner) and in his opinion, possib

lity of the aforesaid injury been caused due to pulling of bed sheet could

not be ruled out. The post-mortem report of deceased Bhanwar Singh show;

that there was a ligature mark encircling whole of neck measuring 39 cms.

all rounds the neck. The doctors who conducted the post-moterm examination

clearly opined that the death occurred due to asphyxia caused by

strangulation. Thus, the eye-witness account finds complete corroboration

from thus medical evidence on record.

The accused have lead no evidence in support of their defence. Even

otherwise, the plea taken by them in their statement under Section 313

Cr.P.C. appears to be highly improbable and unnatural. It has come in

evidence that the distance of the garage is 14.70 meters from the front

gate which comes to nearly 48 ft. It does not appeal to reason that if the

actual commission of crime, namely, strangulation of the deceased had not

been seen by anyone, why would the assailants take the risk of being seen

and apprehended while carrying the dead body and placing it in the garage.

The assailants would have left the body where the crime was committed and

would have slipped away. Therefore, the defence case that some one else

placed the dead body in the garage of the kothi is not at all worthy of

belief. To our mind, such a defence has been taken by the accused only for

the purpose of explaining the presence of the body of deceased Bhanwar

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Singh in the garage and the arrest of A-2 and A-3 on the spot. It is

important to note that much less producing any evidence, the accused-

appellants have not even given any suggestion in the cross-examination of

the eye-witnesses (PW.4 and PW.5) as to why they had given false statement

to implicate them in a serious case like murder. There is not even an iota

of evidence on the record which may even remotely suggest that PW.4 or PW.5

had any grouse against the appellants or any cause ;o implicate them

falsely. In our opinion the evidence on record clearly establishes the case

of the prosecution against the appellants beyond any shadow of doubt.

Shri Sushil Kumar, learned Senior Advocate has strenuously urged that the

injury found on the body of the deceased could not have been caused in a

manner deposed to by the eye-witnesses and thus there is a conflict between

the medical evidence and ocular testimony. At the time when the statement

of PW.2 Dr. G. Dewan was recorded, the chadar was produced in Court and the

same was converted into a rope by twisting and according to the witness,

the thickness of the same in the middle was about 6/7 cms. Learned counsel

has submitted that the ligature mark on the neck of the deceased was 1/2 cm

in width and this was not possible from a chadar, the thickness of which

after twisting and converting into a rope came to about 6/7 cms. We are

unable to accept the submission made. It has come in evidence that the

chadar was about 1-1/2 meter long and 1 meter wide. This shows that in fact

it was not a full chadar or a bed sheet but was a piece of cloth, which is

sometimes used by ordinary people like rickshaw pullers to cover their face

during winters especially in night. If the said piece of cloth is converted

into a rope by rolling it over, its diameter will very much depend upon the

fact as to how strongly and tightly it is rolled over. If a piece of cloth

which is only one meter in width is tightly rolled over in the shape of a

rope, its diameter will be much less than 6/7 cms. and the ligature mark on

the neck of the deceased would be of still lesser dimension.

In Modi's Medical Jurisprudence (Twenty-Second Edition) in the Chapter

"Deaths From Asphyxia" while dealing with the topic of "Post-mortem

Appearance" especially regarding "Ligature Mark", the learned author-has

stated as under on page 263:

"Ligature mark is a well-defined and slightly depressed mark corresponding

roughly to the breadth of the ligature, usually situated low down in the

neck below the thyroid cartilage, and encircling the neck horizontally and

completely.

The pattern of the ligature may also be seen. Very often, there are

abrasions and ecchymoses in the skin adjacent to the marks. In some cases,

the mark in the neck may not be present at all, or may be very slight, if

the ligature used is soft and yielding like a stocking or scarf, and if it

is removed soon after death.................."

In the present case, the cotton cloth used for strangulating was removed

immediately as the witnesses reached the spot and caught hold of the

assailants. In such circumstances the width of the ligature mark could be

much smaller and need not tally with the diameter of the rope.

The conflict between oral testimony and medical evidence can be of varied

dimensions and shapes. There may be a case where there is total absence of

injuries which are normally caused by a particular weapon. There is another

category where though the injuries found on the victim are of the type

which are possible by the weapon of assault, but the size and dimension of

the injuries do not exactly tally with the size and dimension of the

weapon. The third category can be where the injuries found on the victim

are such which are normally caused by the weapon of assault but they are

not found on that portion of the body where they are deposed to have been

caused by the eye-witnesses. The same kind of inference cannot be drawn in

the three categories of apparent conflict in oral and medical evidence

enumerated above. In the first category t may legitimately be inferred that

the oral evidence regarding assault having been made from a particular

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weapon is not truthful. However, in the second and third category no such

inference can straightway be drawn. The manner and method of assault, the

position of the victim, the resistance offered by him, the opportunity

available to the witnesses to see the occurrence like their distance,

presence of light and many other similar factors will have to be taken into

consideration in judging the reliability of ocular testimony.

The width of the ligature mark would very much depend upon the type of the

cloth, how tightly and strongly it was rolled over and was converted into a

rope and how soon it was removed. In Punjab Singh v. Stale of Haryana

[1984] Supp SCC 233 it was held that if direct evidence is satisfactory and

reliable, the same cannot be rejected on hypothetical medical evidence.

Again in Anil Rai v. Mate of Bihar [2001] 7 SCC 318 it was held that if

medical evidence when properly read shows two alternative possibilities but

not any inconsistency, the one consistent with the reliable and

satisfactory statements of the eye-witnesses has to be accepted. We are in

respectful agreement with the view taken in the above cases. We are,

therefore, clearly of the opinion that in the case in hand there is no

inconsistency between the testimony of the eye-witnesses and the medical

evidence and the case of the prosecution does not suffer from any infirmity

on that account.

Shri Sushil Kumar has drawn our attention to certain findings recorded

by'the learned Sessions Judge and has urged that he had rightly given

benefit of doubt to the appellants and the High Court committed manifest

error of law in reversing the aforesaid findings and convicting and

sentencing the appellants while hearing an appeal against acquittal. The

learned counsel has urged that the prosecution has failed to prove any

motive on the part of the appellants to commit the crime. It is true that

the only witness examined on the point of motive namely PW.7 Sardara Singh,

who is brother of the deceased, turned hostile and did not support the

prosecution case. In his statement under Section 161 Cr.P.C. he had said

that the deceased used to get commission for bringing customers to the

guest house and he owed about Rs. 42,000 in that account and some dispute

had taken place with the owner when he had demanded his money. However, in

his statement in Court he denied to have given any such statement. There is

no such principle or rule of law that where the prosecution fails to prove

the motive for commission of the crime, it must necessarily result in

acquittal of the accused. Where the ocular evidence is found to be

trustworthy and reliable and finds corroboration from the medical evidence,

a finding of guilt can safely be recorded even if the motive for the

commission of the crime has not been proved. In State of Himachal Pradesh

v. Jeet Singh, [1999] 4 SCC 370 it was held that no doubt it is a sound

principle to remember that every criminal act was done with a motive but

its corollary is not that no offence was committed if the prosecution

failed to prove the precise motive of the accused to commit it, as it is

almost an impossibility for the prosecution to unreveal the full dimension

of the mental disposition of an offender towards the person whom he

offended. In Nathuni Yadav and Ors. v. State of Bihar and Anr:, [1998] 9

SCC 238 it was held that motive for doing a criminal act is generally a

difficult area of prosecution as one cannot normally see into the mind of

another. Motive is the emotion which impels a man to do a particular act

and such impelling cause need not necessarily be proportionately grave to

do grave crimes. It was further held that many a murders have been

committed without any known or prominent motive and it is quite possible

that the aforesaid impelling factor would remain undiscoverable. In our

opinion, in the facts and circumstances of the case, the absence of any

evidence on the point of motive cannot have any such impact so as to

discard the other reliable evidence available on record which unerringly

establishes the guilt of the accused.

Learned counsel has also submitted that the roaster of duty of PW.4 and

PW.5 was withheld by the prosecution and, therefore, it is not possible to

accept their version that they were on patrol duty. In our opinion, the

contention raised has hardly any merit in view of the fact that an entry

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was made at 9.40 p.m. on 23.12.1989 in DDR No. 45 of Police Post Sector 36

to the effect that the aforesaid Constables had been assigned night patrol

duty in Sector 35. The other submission made is that in the first

telephonic message given to the police post at 1.05 a.m. the names of the

assailants were not mentioned. It is true that Ex. PL which is copy of

entry made at 1.05 a.m. in DDR No. 52 of Police Post Sector 36, the names

of the assailants were not mentioned and only the fact that three persons

were assaulting a person was recorded. PW. 4 has stated that he gave

telephonic message about the incident at Police Post Sector 36 and made a

request for sending some police force. The entry in DDR was made by

Surender Kumar, SI that after receiving the aforesaid information he is

proceeding to the spot along with some other police constables. This was

not a First Information Report of the incident but merely an entry made

regarding the departure of the police personnel to the place of occurrence

and, therefore, the non-mention of the names of the assailants in this

entry cannot have any bearing. The third submission of learned counsel is

that having regard to the.height of rear wall and fencing A-l could not

have managed to run away by scaling the same and the prosecution case in

that regard cannot be believed. PW.3 Jaswant Singh, draftsman has stated

that the lock boundary wall was 3 feet and 7-1/2 inch high and, thereafter,

there was a barred wire fence which was 1-1/2 meter in height. While

running away it is quite possible that A-l jumped to the other side by

merely scaling over the brick wall without scaling the barred wire fencing.

He was a young man of 25 years in age and scaling over the wall was not a

difficult proposition for him.

Shri M.N. Rao, learned Senior Advocate, who appeared for A-2 and A-3 also

raised the same contentions regarding the alleged conflict in oral and

medical evidence, the non-mention of the names of the accused in the first

telephonic message and absence of motive, which we have already considered.

Having given our careful consideration to the submissions made by learned

counsel for the parties, we are clearly of the opinion that the prosecution

has succeeded in establishing its case against the accused-appellants

beyond any shadow of doubt and the view taken by the learned Sessions Judge

was wholly perverse which was rightly set aside by the High Court. In the

result, :he appeals lack merit and are hereby dismissed. The appellants are

on bail. They shall surrender forthwith to undergo the sentences imposed

upon them. The CJM concerned shall take immediate steps to take the

appellants into custody.