http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3

PETITIONER:

DEVINDER

Vs.

RESPONDENT:

STATE OF HARYANA

DATE OF JUDGMENT: 13/09/1996

BENCH:

M.K.MUKHERJEE , S.P.KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

M.K. MUKHERJEE,J.

The subject matter of challenge in this appeal is the

judgment and order dated May 30, 1987 rendered by the

Designated Court, Rohtak, while disposing of Sessions Case

No. 550 of 1986 and Arms Act Case No. 551 of 1986. By the

impugned judgment and order the Court convicted and

sentenced the appellant Devinder @ Pappy under Section 302

IPC and Sections 25 and 27 of the Arms Act, 1959 read with

Section 6 of Terrorist and Disruptive Activities

(Prevention) Act, 1985 ('TADA' for short).

2. Shorn of details the prosecution case is as under:

(a) Ramphal (the deceased) used to sell vegetables from his

shoo-cum-residence in the Janta Colony, Rohtak city. On July

26, 1986 at or about 9 A.M. the appellant went to his shop

and asked for some vegetables on credit. Ramphal told the

appellant that as he had not paid his earlier dues he would

not oblige him any more. Since such refusal of Ramphal was

in the presence of two others. namely, Jagdish (P.W.10) and

Satbir Singh (P.W.11), the appellant felt insulted and left

in a huff.

(b) About twenty minutes thereafter the appellant came back

with a knife and remarked that he would teach him (Ramphal)

a lesson for insulting him in the presence of others.

Ramphal, who was then cooking, stood up and attempted to

escape. He however could not succeed in his attempt as the

appellant gave him two blows with the knife - one on the

left side of the chest and the other on the abdomen,Jagdish

and Satbir Singh, who were there still then. and one Umesh,

who had reached there by chance, witnessed the assault.

(c) Jagdish and Umesh then carried Ramphal in a rickshaw to

the Medical College Hospital, Rohtak where he was examined

by Dr. Sushil Kumar Jain P.W.5) first. After examination,

Dr. Jain sent a medico legal report (Ex.PS) and a rukka

(Ex.PD) to the Police Post attached to the hospital where an

entry in terms thereof was made by Constable Mangal Singh

(P.W.1) in the daily diary book at 1.45 P.M. (Ex. PE).

(d) In the meantime,however, - at 11.30 A.M. to be precise

- the City Police Station, Rohtak had received a telephonic

message from the above Police Post about the admission of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3

Ramphal in the hospital with injuries on his person and,

after recording that message in the daily diary book

(Ex.PF), ASI Tota Ram (P.W.12) has left for the hospital.

Reaching there he found Jagdish present and recorded his

statement (Ex. PZ) at 2.40 P.M. which was treated as the

FIR. After forwarding the statement to the Police Station

for registering a case, Tota Ram took up investigation and

went to the spot. He prepared a rough site plan and seized

some blood-stained earth therefrom in the presence of

Jagdish and Satbir.

(e) Ramphal, who was admitted as an indoor patient in the

hospital, was operated upon by Dr. Pradeep Kumar (P.W.7) for

his injuries but he succumbed to them on the following day

i.e. July 27.1996 at 11.30 A.M. On receipt of that

information the case which was earlier registered against

the appellant under Section 307 I.P.C was: converted into

one under Section 302 I.P.C. and a special Report (Ex. PH)

was sent to the local Magistrate. ASI Tota Ram them went to

the hospital and after holding ingest upon the deadbody of

Ramphal,sent it for autopsy which was performed by Dr. M.K.

Bishnoi (P.W.9).

(f) In course of the investigation the appellant was

arrested on July 29, 1986 and pursuant to a statement made

by him to Tota Ram on July 31. 1986 (Ex. PEE) a spring

activated knife concealed under the bricks in a deserted

kotha towards the southern boundary wall of Hanuman Park,

Rohtak was recovered in the presence of Jagdish (P.W.10) and

Daya Chand. After recovery of the knife a separate case was

registered against the appellant under the Arms Act, 1959

read with Section 6 of TADA.

(g) The blood-stained earth recovered from the spot, the

shirt removed from the deadbody of Ramphal and the knife

recovered pursuant to the statement of the appellant were

sent to the Forensic Science Laboratory (F.S.L.), Madhuban

for chemical examination and human blood was detected on all

those articles on such examination. On completion of the

investigation ASI Tota Ram submitted two separate charge-

sheets against the appellant; one under Section 302 I.P.C.

for the murder of Ramphal on July 26, 1986 and the other

under Sections 25 and 27 of the Arms Act, 1959 read with

Section 6 of TADA for unlawful possession and user of a

spring actuated knife.

3. The two cases arising out of the above chargesheets were

clubbed and tried together and were disposed of by the

impugned judgment in the manner indicated above.

4. The appellant pleaded not guilty to the charges levelled

against him and his defence was that at the instance of

Jagdish and Ramphal he was falsely implicated in the case as

he had, three days prior to the alleged murder of Ramphal, a

quarrel with Jagdish and Umesh over their misbehaviour in

their locality under the influence of liquor.

5. In support of their respective cases prosecution examined

twelve witnesses and the defence one.

6. To sustain the charge of murder levelled against the

appellant the prosecution rested its case principally upon

the ocular version jagdish (P.W.10) and Satbir (P.W.11). The

Designated Court found them to be the most probable and

natural witnesses and as their evidence stood amply

corroborated by the evidence of the doctors, the recovery of

the knife pursuant to the statement of the appellant, and

the report of the Forensic Science Laboratory held the

appellant guilty of both the charges levelled against him.

7. Having carefully gone through the entire materials on

record, we are unable to sustain the impugned judgement.

Though apparently there is no reason to disbelieve the two

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3

eye witnesses, there are certain underlying circumstances

which persuade us to give the benefit of reasonable doubt to

the appellant. According to the prosecution case - and as

testified by Jagdish immediately after the assault Ramphal

was taken to the hospital by him (Jagdish) and Umesh (not

examined), who were present at the time of the assault. Dr.

Jain testified that at the time of admission Ramphal was

fully conscious and his blood pressure and pulse were

normal. From the medico legal report (Ex. PS) that the

doctor sent to the police after examining Ramphal we find

that apart from his name, the father's name of Ramphal, his

address, his occupation and an account as to how the

injuries were caused find place. Obviously all these

particulars had been furnished by Ramphal, and/or Jagdish

and Umesh, who had accompanied him. In that context it was

expected, if really the appellant was the assailant, that

his name would be disclosed by all or any of them while

furnishing the cause of the injuries. It can. therefore, be

legitimately inferred that at the earliest available

opportunity the name of the appellant was not disclosed.

8. It was, however, contended by Mr. Malhotra appearing on

behalf of the respondent that since the F.I.R.. was lodged

by Jagdish with promptitude and therein the name of the

appellant as the assailant had been mentioned, non-

disclosurs of his name earlier before the doctor, who was

under no statutory obligation to record the name of the

assailant, was of no moment. If the F.I.R.. was recorded at

2.40 P.M. (on July 26, 1986) as indicated therein we might

have persuaded ourselves to accept the contention of Mr,

Malhotra but we find, surprisingly enough, that no special

report in respect of the registration of the case was sent

to the Magistrate on that day: and, indeed, as the evidence

on record unmistakably shows that it was forwarded to the

Magistrate only after the case was converted to one under

Section 302 IPC consequent upon the death of Ramphal on July

27, 1986, and received in his office at 10 P.M. This glaring

circumstance prompts us to hold that the F.I.R.. did not see

the light of the day the till the death of Ramphal and the

version of the prosecution that the F.I.R. was recorded on

July 26, 1986 is not true.

9. For the foregoing discussion the prosecution case as

presented before the Court cannot be accepted. We,

therefore, allow this appeal, set aside the conviction and

sentence recorded against the appellant and acquit him. The

appellant, who is in jail, be released forthwith unless

wanted in connection with some other case.