Supreme Court of India
JITENDER KUMARversusSTATE OF HARYANA
- Citation
- 2012 INSC 210
- Decided
- 8 May 2012
- Disposal
- Dismissed
- Bench
- A K PATNAIK
Holding
The prosecution proved the murder beyond reasonable doubt, and the convictions under s.120‑8 read with s.302/34 IPC stand affirmed.
Summary
The case concerned the murder of Indra, who was strangulated to death by her father‑in‑law, brother‑in‑law and others. Five accused were tried; four were convicted under s.120‑B, s.302 and s.34 IPC and one (Jitender Kumar) under s.120‑8 IPC. The appellants challenged the convictions on several grounds, including that Jitender was not named in the FIR, the delay in lodging the FIR, the admissibility of his disclosure statement, the reliability of medical evidence on time of death, and the alibi defence. The Supreme Court held that the prosecution had proved the case beyond reasonable doubt through ocular, documentary and medical evidence; an accused not named in the FIR can be convicted if his role is established; delay in FIR is not fatal; the part of the disclosure statement leading to the recovery of the motorcycle is admissible under s.27 Evidence Act; medical evidence on stomach contents is not decisive; the alibi plea lacked proof; and conviction under s.120‑8 read with s.302/34 IPC is proper. Consequently, the appeals were dismissed.
Issues considered
- Whether an accused not named in the FIR can be convicted.
- Whether the delay in filing the FIR defeats the prosecution case.
- Admissibility of the accused's disclosure statement under s.27 Evidence Act.
- Whether the time of death can be determined solely from stomach contents.
- Whether the alibi defence raised by the accused is sustainable.
- Effect of a co‑accused's statement under s.313 CrPC on other accused.
- Whether conviction under s.120‑8 read with s.302/34 IPC is legally justified.
Legislation cited
- Code of Criminal Procedure, 1973s. 173, s. 313
- Indian Evidence Act, 1872s. 27
- Indian Penal Code, 1860s. 120-8, s. 120-B, s. 149, s. 302, s. 323, s. 34, s. 342, s. 506
Subjects
murderconspiracys.120-8 IPCFIR omissiondelay in FIRdisclosure statementevidence admissibilitymedical jurisprudencetime of deathalibi defenceconviction
Judgment
[2012] 4 S.C.R. 408
A JITENDER KUMAR
v.
STATE OF HARYANA
(Criminal Appeal No. 1763 of 2008)
MAY 8, 2012
B
[A.K. PATNAIK AND SWATANTER KUMAR, JJ.]
Penal Code, 1860:
c ss. 120-8 and 302134 IPC- Murder- Victim strangulated
to death by father-in-law, brother-in-law and others - Evidence
of the brother and the husband of the victim - Disclosure
statement of one of the accused - Out of 5 accused, 4
convicted and sentenced by trial court ulss 120-8 and 3021
0 · 34 and the fifth convicted u/s 1208 an.d also sentenced to
imprisonment for life - Held: The prosecution has been able
to establish its case beyond reasonable doubt by ocular,
documentary and medical evidence - The judgment of the
High Court under appeal does not call for any interference -
E Once the court finds an accused guilty of s.1208, where the
accused had conspired to commit an offence and actually
committed the offence with other accused with whom he
conspired, they all shall individually be punished for the
.offence for which such conspiracy was hatched - Thus, there
is no error in the judgment of the trial court in convicting the
F accused u/s 1208 read with s.302.
Evidence Act, 1872:
s.27 - Disclosure statement - Admissibility of - Held:
The part of the disclosure statement cannot be taken to be
G confession of the accused in relation to commission of the
crime, but the other part by which the motor cycle which was
used by the accused in facilitating the crime was recovered,
would be the portion admissible in evidence.
H 408
JITENDER KUMAR v. STATE OF HARYANA 409
Criminal Law: A
Accused not named in FIR - Conviction of - Held: An
accused who has not been named in the FIR, but to whom a
definite role is attributed in the commission of the crime and
when such role is established by cogent and reliable 8
evidence and the prosecution is also able to prove its case
beyond reasonable doubt, such an accused can be punished
in accordance with law, if found guilty - In the instant case, a
definite role has been attributed to the accused concerned by
two prosecution witnesses and it was on his disclosure
statement that the motorcycle used by him to facilitate the C
crime was recovered.
Medical Jurisprudence:
Time of death and contents of stomach - Held: Judging o
the time of death from the contents of the stomach, may not
always be the determinative test - It will require due
corroboration from other evidence - If the prosecution is able
to prove its case, including the time of death, beyond
reasonable doubt and the same points towards the gwlt of the E
accused, then it may not be appropriate for the court to wholly
reject the case of the prosecution and to determine the time
of death with reference to the stomach contents of the
deceased.
Delay!Laches: F
Delay in filing FIR - Held: Cannot be a ground by itself
for throwing away the entire prosecution case - The court has
to seek an explanation for delay and check the truthfulness
of the version put forward - In the instant case, keeping in view G
the circumstances in which the witnesses informed police,
some delay in registering the FIR was inevitable and it is not
such inordinate delay which could be construed as a ground
for acquittal of the accused, as the prosecution has been able
to prove its case beyond reasonable doubt. H
410 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Code of Criminal Procedure, 1973:
s.313 - Statement of the accused who died during
pendency of proceedings - Held: The part of the statement
that supports the case of the prosecution as well as
statements of other witnesses can be relied upon by the
8
prosecution to a limited extent - The statement may not be
used against the other accused as such, but the fact that the
statement supports the case of the prosecution cannot be
wiped out from the record and would have its consequences
in law.
c
The three appellants along with two others were
prosecuted for the murder of the sister of PW-11. The
prosecution case was that 'RR' (father-in-law of the
deceased) was more inclined towards the children of his
D sister-in-law (Sali) than his own children and was helping
them financially as also by parting with the household
articles. This was objected to by the deceased and her
husband (PW 10). Having come to know of this protest,
'SK' and 'S' (the accused appellants, in criminal appeal
E no. 1092 of 2009) and 'PK', the brother-in-law of the
deceased threatened to kill her. On 9.2.1999, PW-11 went
to the house of his sister. At about 1.00 - 1.30 a.m. in the
night, PW11 heard loud voices coming from the
'chobara'. When he went upto the 'chobara', he saw that
F 'RR' and his son 'PK' had caught hold of the hands of
the deceased while 'SK' and 'S' were pulling the rope that
had been put around her neck. The deceased was
struggling for life and was trying to free herself from their
grip. PW11 tried to intervene, but when threatened by the
G accused, he went to his house and informed his family
members. Thereafter, he, along with some persons
reached the house of the deceased and found her lying
dead. On the statement of PW-11, the police registered an
FIR. The trial court convicted accused 'JK' u/s 120-8 IPC
and sentenced him to imprisonment for life. The other four
H
JITENDER KUMAR v. STATE OF HARYANA 411
accused were convicted u/ss 120-B and 302/34 IPC and A
sentenced to life imprisonment. The appeal filed by the
accused was dismissed by the High Court. Accused 'RR'
died during the pendency of the proceedings. SLP filed
by accused 'PK' was dismissed by the Supreme Court.
B
Dismissing the appeals, the Court
HELD: 1.1. It is correct that the name of accused 'JK'
(appellant in Crl. A. NO. 1763 of 2008) was not mentioned
by PW-11 in the FIR. However, an accused who has not
been named in the FIR, but to whom a definite role is C
attributed in the commission of the crime and when such
role is established by cogent and reliable evidence and
the prosecution is also able to prove its case beyond
reasonable doubt, such an accused can be punished in
accordance with law, if found guilty. [para 11] [427-C-E] D
State of U.P. Vs. Krishna Master and Ors. 2010 (9)
SCR 563 = (2010) 12 SCC 324; Ranjit Singh and Ors. Vs.
State of Madhya Pradesh 2010 (14) SCR 133 =
(2011) 4
sec 336 - relied on. E
1.2. In the instant case, a definite role has been
attributed to accused 'JK' by PW-10. Further, it was on
his disclosure statement that the motor cycle, Ext. P44,
has been recovered. PW-10 has specifically stated in his
statement before the court that after midnight at about F
12.30 a.m., accused 'S' and 'JK' (his brother-in-law) while
driving a motorcycle, had come to him in the fields. They
gave him beating and insisted that he should ask his wife
to open the door of the 'chobara'. He was taken to his
residence in the village and out of fear, he asked his wife G
to open the door which she did as earlier she had bolted
the shutters from inside. After the door was opened,
accused 'RR', 'PK', 'S' and 'SK' entered the 'chobara'! 'JK'
thereafter, is stated to have taken out a synthetic rope
from the dicky of the motorcycle and handed over the H
412 SUPREME COURT REPORTS [2012] 4 S.C.R.
A same to 'S'. After handing over the rope, 'JK' declared
that he would take PW-10 back to the fields and exhorted
that the deceased be killed to solve all problems in the
future. According to this witness, he was forced by 'JK'
to drive the motorcycle back to the fields. Further, 'JK' is
B stated to have been a party to illegally confining PW-10
after the commission of the crime. Moreover, in the cross-
examination of this witness, not even a suggestion was
put to him that 'JK' was not present and/or had not
accompanied him on the motor cycle to the fields. [para
c 12] [428-D-H; 429-A-B]
1.3. The fact that PW11 did not name accused 'JK'
in the FIR adds to the credibility of this witness rather
than creating a doubt in the case of the prosecution. PW-
11 in his statement clearly stated that all the accused
D except 'JK' were present in the 'chobara' and had
murdered his sister. This reflects the truthfulness of PW-
11. When PW-11 came to the 'chobara' and noticed the
other accused persons trying to kill the deceased, 'JK'
had already left along with PW-10 and as such, there was
E no occasion for PW-11 to see 'JK' at the place of
occurrence in the 'chobara'. Therefore, he rightly did not
name 'JK' in the FIR as one of the persons present in the
'chobara' who committed the murder of his sister. [para
13] [429-C-F]
F
1.4. The High Court also believed PW-10, although it
observed that he behaved like a husband under fear and
exhibited his paramount interest in the property. These
observations do not in any way affect the case of the
G prosecution because the incident, as narrated by the
prosecution witnesses and particularly by PW-10 and
PW-11, is also corroborated by other expert evidence on
record. [para 14] [430-A-B]
Tika Ram v. State of Madhya Pradesh (2007) 15 SCC
H 760 - relied on
JITENDER KUMAR v. STATE OF HARYANA 413
1.5. The part of the disclosure statement of accused A
'JK', Ext. P43, cannot be taken to be confession of the
accused in relation to commission of the crime, but the
other part by which the motor cycle was recovered, would
be the portion admissible in evidence. The admissible
part can very safely be segregated from the inadmissible B
part in this statement. There is no such infirmity which
would vitiate the very recovery of the motor cycle in terms
of s.27 of the Evidence Act, 1872. The fact that the
motorcycle was used by accused 'JK' for the purpose of
bringing PW-10 from the fields to his residence and after c
getting the door opened by the victim was again used for
dropping PW-10 to the fields is fully corroborated. The
recovery of motorcycle, Ext. P44, is a fact which provides
a link between recovery of motorcycle and its use by the
accused in commission of the crime. This fact is also 0
proved by the statement of PW10. [para 17-18 and 21]
[430-G; 431-A-8, H; 432-A-C)
Aloke Nath Dutta & Ors. V. State of West Bengal 2006
=
(10) Suppl. SCR 662 (2007) 12 SCC 230; Anter Singh v.
State of Rajasthan 2004 (2) SCR 123 =(2004) 10 SCC 657 E
- referred to
2. Accused 'JK' was charged with an offence
punishable u/s 1208 IPC for he and other co-accused had
conspired to do an illegal act and commit the murder of F
the deceased. A bare reading of s.1208 provides that
whoever is a party to a criminal conspiracy to commit an
offence punishable with death, imprisonment for life or
rigorous imprisonment for a term of two years or
upwards, shall, where no express provision is made in G
the IPC for the punishment of such a conspiracy, be
punished in the same manner as if he had abetted such
offence. Once the court finds an accused guilty of s.1208,
where the accused had conspired to commit an offence
and actually committed the offence with other accused
with whom he conspired, they all shall individually be H
414 SUPREME COURT REPORTS [2012) 4 S.C.R.
A punishable for the offence for which such conspiracy
was hatched. Thus, there is no error in the judgment of
the trial court in convicting the accused u/s 1208 read
with s.302 IPC. [para 23, 24 and 25] [432-F-G; 433-C-E]
3.1. It is a settled principle of criminal jurisprudence
B that mere delay in lodging the FIR may not prove fatal in
all cases, but in the given circumstances of a case, delay
in lodging the FIR can be one of the factors which
corrode the credibility of the prosecution version. Delay
in lodging the FIR cannot be a ground by itself for
C throwing away the entire prosecution case. The court has
to seek an explanation for delay and check the
truthfulness of the version put forward. If the court is
satisfied, then the case of the prosecution cannot fail on
this ground alone. [para 30] [435-E-G]
D
Yakub lsmailbhai Patel v. State of Gujarat 2004 (3)
Suppl. SCR 978 = (2004) 12 SCC 229; State of Rajasthan
v. Shubh Shanti Services Ltd. V. Manjula S. Agarwal/a & Ors.
2000 (2) SCR 818 = (2000) 5 sec 30 - relied on.
E 3.2. Undoubtedly, it has come in the statement of PW-
1 that the house in which the occurrence took place, was
situated at a distance of 150 metres, from the police
station. This piece of evidence does not advance the case
of the accused favourably. According to the prosecution,
F the victim was killed by the family of her in-laws. Most
unfortunately, her husband, PW10, partly because of fear
and partly out of greed for property, became a mere
spectator to the crime. PW11, lodged the FIR and PW10
corroborated the version given in the FIR about the
murder of his wife. He claimed that he was illegally
G confined by accused 'JK' and 'SK' and, therefore, after
the murder, he was unable to approach the police station.
In these circumstances, of course, the conduct of PW-10
and PW-11 is somewhat strange, but their statements
cannot be falsified on this ground. [para 28] [434-G-H;
H 435-A-B]
JITENDER KUMAR v. STATE OF HARYANA 415
3.3. PW-11, who was the eye-witness to the A
occurrence, clearly stated in his statement that after
having the dinner, deceased along with her child had
gone to 'chobara' to sleep and all of them were sleeping
on the ground floor. At about 1.00 or 1.30 a.m., he heard
voices from the 'chobara'. He went upstairs and saw that B
accused 'RR' and 'PK' had caught hold of the deceased
and accused 'SK' and 'S' were strangulating her with the
help of a rope. Despite her struggle, she was not able to
free herself from the grip of the accused persons and
when he tried to intervene, he was also threatened with c
dire consequences. As a result, he went away to his
village to inform his family members about the incident.
At that time, PW-11 was not aware of the fact that the
deceased had already died. It is only when he came back
to the house of 'RR' along with his co-villagers that they 0
all saw the victim lying dead. That is how they came to
know that deceased had been strangulated and
murdered by the accused. It was thereafter that PW11
went to the Police Station to report the incident and met
ASI on the way, who recorded his statement and after
making endorsement, sent it to the Police Station for E
registration of the case. Accordingly, the FIR Ext. P-2 was
recorded at 4.40 p.m. on 10th February, 1999, in which the
time of occurrence was recorded as 1.00 to 1.30 a.m. of
the same date. In these circumstances, some delay in
registering the FIR was inevitable and it is not such F
inordinate delay which could be construed as a ground
for acquittal of the accused, as the prosecution has been
able to prove its case beyond reasonable doubt. [para 27
and2~~33-H;G4~~;G5-~
G
4.1. Judging the time of death from the contents of
the stomach, may not always be the determinative test.
It will require due corroboration from other evidence. If
the prosecution is able to prove its case beyond
reasonable doubt and cumulatively, the evidence of the H
416 SUPREME COURT REPORTS [2012] 4 S.C.R.
A prosecution, including the time of death, is proved
beyond reasonable doubt and the same points towards
the guilt of the accused, then it may not be appropriate
for the court to wholly reject the case of the prosecution
and to determine the time of death with reference to the
s stomach contents of the deceased. There is no absolute
and definite standard that every human being would
empty his stomach within two to three hours of taking the
meals, irrespective of what kind of meals had been taken
by the person concerned. (para 41, 42] [441-D-G]
c Jabbar Singh v. State of Rajasthan (1994) SCC (Cr.)
1745 - relied on.
Shivappa v. State of Kamataka 1994 (6) Suppl. SCR
171 = (1995) 2 sec 76 - referred to.
D
Modi's Medical Jurisprudence and Taxicology (23rd)
Edn.) - referred to.
4.2. Neither PW-10 nor PW-11 has stated as to the
exact time at which the victim had her dinner. It is a matter
E of common knowledge that in the villages, ladies
normally provide food to the guests and the other
members of the family first and are last to have the food
themselves. None of the witnesses have 'given the time
when all the persons had their dinner. But, according to
F both these witnesses, after having the dinner they had
gone to sleep except PW-10 who had gone to the fields
for irrigation purposes. This obviously means that they
would have had dinner after 8 or 9 p.m., whereafter they
went to sleep. The victim presumably had dinner
G thereafter and went to sleep later. She was murdered
between 1.00 to 1.30 a.m. which means between 4 to 5
hours of having her dinner. The evidence of PW-3
categorically states that it was possible that the deceased
was murdered between 1.00 to 1.30 a.m. This was duly
H corroborated by PW-11. The investigation conducted by
JITENDER KUMAR v. STATE OF HARYANA 417
PW6, PW12 and PW13 also indicates that she was A
murdered during that period. It is significant to notice that
after PW-3 stated in his further examination that the
deceased might have been murdered between 1.00 to
1.30 a.m., no suggestion was put to this witness that the
said witness was stating incorrectly or that it was not "B
possible to reconcile the statement of PW-3 i.e. the expert
evidence, with the version of the prosecution. Once, this
statement of PW-3 remained unchallenged and there
exists other prosecution evidence to support the said
version, the Court would not be inclined to treat it as a c
significant doubt in the case of the prosecution. The time
of death given by PW-3, thus, cannot be falsified only on
the ground of an argument that there was some
undigested food found in the stomach of the deceased.
[para 35-36) [436-G-H; 437-A-F] D
Shambhoo Missir & Anr. v. State of Bihar (1990) 4 SCC
17 - distinguished
Textbook of Gastroenterology, (Volume One), by
Tadataka Yamada, David H. Alpers, Chung Owyang, Don W E
Powell and Fred E. Silverstein - referred to.
5.1. In the instant case, both the trial court and the
High Court have believed PW10 and PW11 and have
returned a finding of guilt against the accused. The
F
Courts have adversely commented upon the conduct of
these witnesses but not with regard to the material events
of the prosecution case. PW10 was under threat and
confinement of his own family members as well as friends
of the accused, who had conspired to kill his wife, that
is how he obeyed the command of accused 'JK' and G
others in coming from the fields on the motorcycle and
getting the door of 'chobara' opened by his wife where
she was sleeping with her child. He claims to have been
under continuous threat and illegal confinement of
accused 'JK' and the other accused. It was PW10's own H
418 SUPREME COURT REPORTS [2012] 4 S.C.R.
A house where the murder has taken place and, therefore,
his presence in the house cannot be doubted in the
normal course. PW11 is the brother of the deceased and
he had come late in the evening to meet his sister and
sort out the issues with regard to the return of the
B · properties which 'RR' had given to appellants 'S' and
'SK'. [para 49] [44-A-E]
5.2. The doctor (PW3) has stated that besides ligature
marks on neck, the face of the deceased was swollen and
C congested. Six other injuries were found on the body of
the deceased. The post mortem report, Ext. P4 to PS,
states the cause of the death, as per opinion of the Board,
as asphyxia due to strangulation, which was ante mortem
in nature and sufficient to cause death in the ordinary
course of nature. It is a case where the ocular evidence
D of PW11 is fully corroborated by medical evidence and
is also partially supported by the stateme'lt of PW10, the
husband of the deceased. Thus, in the considered view
of this Court, the statements of PW10 and PW11 cannot
be said to be doubtful. Their presence at the place of
E occurrence was natural and what they have stated is not
only plausible but completes the chain of events in the
case of the prosecution. [para 50] [444-F-H; 445-A-C]
6.1. The plea of alibi taken in addition to the defence
F that the accused 'SK' and 'S' were living in a village far
away from the place of occurrence, was found to be
without any substance by the trial court and was further
concurrently found to be without any merit by the High
Court also. In order to establish the plea of alibi these
G accused had examined various witnesses. The trial court
has held that none of the documents adduced by the
defence in evidence reflected the presence of either of
the two accused at the stated place. On the contrary the
entire plea of alibi falls to the ground in view of the
statements of PW-10 and PW-11. The statements of these
H witnesses have been accepted by the courts below and
JITENDER KUMAR v. STATE OF HARYANA 419
also the fact that they have no reason to falsely implicate A
the accused persons. Once, PW-10 and PW-11 are
believed and their statements are found to be trustworthy,
as rightly dealt with by the courts below, then the plea of
abili raised by the accused loses its significance. T h e
burden of establishing the plea of alibi lay upon the B
appellants and they have failed to bring on record any
such evidence which would, even by reasonable
probability, establish their plea of alibi. [para 51) [445-D-
H]
Shaikh Sattar v. State of Maharashtra 2010 (10)
c
SCR 503 = (2010) 8 SCC 430 - relied on
Rupchand Chindu Kathewar v. State of Maharashtra
(2009) 17 sec 37 - held inapplicable.
D
S.P. Bhatnagar v. State of Maharashtra 1979 (2)
scR 875 = (1979) 1 sec 535
6.2. Accused 'RR', in his statement u/s 313 CrPC, had
admitted material parts of the prosecution case including
that he had parted away with a buffalo, some household E
articles and cash amount of Rs.50,000/- in favour of the
family of accused 'S' and that his son PW-10 and the
deceased had objected to it. He also admitted that the
door was opened by deceased on the asking of PW-10
whom accused 'JK' had brought on motor cycle from the F
fields. However, he denied having committed the murder.
The fact of the matter "remains that the statement of
accused 'RR' u/s 313 CrPC is part of the judicial record
and could be used against him for convicting him, if the
prosecution had proved its case in accordance with law. G
'RR', however, died during the pendency of the
proceedings. The part of his statement that support$ the
case of the prosecution as well as the statement of PW-
10 and PW-11 can be relied upon by the prosecution to
a limited extent. This statement may not be used against H
420 SUPREME COURT REPORTS [2012] 4 S.C.R.
A the other accused as such, but the fact that the statement
of accused 'RR' u/s 313 CrPC supports the case of the
prosecution cannot be wiped out from the record and
would have its consequences in law. Without using the
statement of 'RR' against the accused, the courts below
B have correctly relied upon the statements of PW-10 and
PW-11 and the medical evidence. This finding recorded
by the courts below cannot, therefore, be faulted with.
[para 52-53) [446-C-H]
C Nachhatar Singh v. State of Punjab (1976) 1 SCC 750
- held inapplicable.
7.1. The special leave petition filed by accused 'PK'
was dismissed by this Court on the ground of delay as
well as on merits by its order dated 14.10.2011. Of course,
D dismissal of the SLP at the admission stage itself would
not adversely affect the case of the appellants. [para 55)
[447-C-D]
Ja/pat Rai and Ors. v. State of Haryana 2011
E SCR 1037 = JT 2011 8 SC 55 - relied on.
7.2. The prosecution has been able to establish its
case beyond reasonable doubt by ocular, documentary
and medical evidence. The judgment of the High Court
under appeal does not call for any interference. [para 54
F and 56] [447 -F]
Case Law Reference:
2010 (9) SCR 563 relied on para 11
G 2010 (14) SCR 133 relied on para 11
2007 (15) sec 760 referred to para 15
2006 (10) Suppl. SCR 662 referred to para 16
2004 (2) SCR 123 referred to para 20
H
JITENDER KUMAR v. STATE OF HARYANA 421
2004 (3) Suppl. SCR 978 relied on para 30 A
2000 (2) SCR 818 relied on para 30
1990 (4) sec 11 distinguished para 37
1994 (6) Suppl. SCR 171 referred to para 45 B
(1994) sec (Cr.) 1745 relied on para 46
2009 (17) sec 37 held inapplicable para 48
2010 (10) SCR503 relied on para 51
c
1979 (2) SCR 875 para 52
(1976) 1 sec 150 held inapplicable para 54
2011 SCR 1037 relied on para 55
D
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1763 of 2007 etc.
From the Judgment & Order dated 30.05.2008 of the High
Court Punjab & Haryana at Chandigarh in Criminal Appeal No.
930-DB of 2003. E
WITH
Crl. Appeal No. 1092 of 2009.
Sushil Kumar, Sanjay Jain, Aditya Kumar for the Appellant.
F
Kamal Mol't3n Gupta, Gaurav Teotia, Sanjeev Kumar for
the Respondent.
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. The Trial Court, vide its G
judgment of conviction dated 5th November, 2003 and order
of sentence dated 10th November, 2003, held all the five
accused, namely, Sunil Kumar, Satish, Pawan Kumar, Jitender
Kumar and Ratti Ram guilty of the offence under Section 120-
B of the Indian Penal Code, 1860 (IPC). The Trial Court further H
422 SUPREME COURT REPORTS [2012] 4 S.C.R.
A held that except Jitender, remaining four accused were also
guilty of the offence under Section 302 read with Section 34
IPC. The Trial Court acquitted all the four accused for the offence
under Section 323 read with Sections 34 and 342 IPC and
convicted them as follows:
8 "Taking into consideration all the aspects of the case, I
take a lenient view and sentence Sunil, Satish, Pawan and
Ratti Ram accused to imprisonment for life under Section
302 read with Section 34 IPC and Section 1208 IPC. Each
of the accused is sentenced to a fine of Rs.1000/- under
c the said sections. In default of payment of fine, the
defaulting accused shall suffer further rigorous
imprisonment for six months.
Jitender accused has been found guilty under Section 120-
) 8 IPC for conspiracy of murder with the other four-five
persons and when we read the provisions of Section 1208
and 109 IPC, Jitender is also punishable for the offence
of murder as the act of murder has been committed in
consequence of the conspiracy. I, therefore, sentence
Jitender accused to imprisonment for life under Section
120-8 IPC. He is also sentenced to a fine of Rs.1000/-
under the said section. In default of payment of fine Jitender
accused shall suffer further rigorous imprisonment for six
months.
As regards, the role of Surender @ Sunder son of Ratti
Ram, the husband of Indra deceased, a copy of this
judgment be sent to the Superintendent of Police, Hisar
for taking appropriate action against him in view o( the
observations made by me in this judgment."
2. This judgment of the Trial Court was challenged by the
accused persons in appeal before the High Court being
Criminal Appeal No.930-08 of 2003. Surender @ Sunder,
husband of the deceased, had also filed a criminal
miscellaneous petition being Criminal Miscellaneous No.3337-
; M of 2004 against the judgment of the Trial Court wherein it had
JITENDER KUMAR v. STATE OF HARYANA 423
[SWATANTER KUMAR, J.]
directed action to be taken against him by the Superintendent A
of Police in view of the observations made by the Trial Court
therein. Both the criminal appeal as well as the criminal
miscellaneous petition were heard together and disposed of
by a common judgment of the High Court dated 30th May, 2008
wherein the High Court upheld the judgment of the Trial Court B
in its entirety and dismissed the criminal appeal and the
criminal miscellaneous petition.
3. Against this judgment of the High Court, two separate
appeals have been filed before this Court, one by Jitender
Kumar being Criminal Appeal No.1763 of 2008 and the other C
by Sunil Kumar and Satish Kumar being Criminal Appeal
No.1092 of 2009. Su render has not challenged the judgment
of the High Court.
4. At this stage itself, we may notice that accused Pawan o
Kumar had also filed a special leave petition against the
judgment of the High Court being SLP (Crl.) No.7881 of 2011
which came to be dismissed by a Bench of this Court on 14th
October, 2011 on the ground of delay as well as on merit. Ratti
Ram died during the pendency of the proceedings. Thus, by E
this common judgment, we would dispose of both these criminal
appeals preferred by the three accused persons.
5. The First Information Report (FIR) pertaining to the case
in hand was registered by ASI Hans Raj of Police Station
Narnaund on 10th February, 1999 on the statement of lshwar F
Singh (PW11 ), brother of the deceased. Chadan Singh,
resident of Bhartana had eight children, two sons and six
daughters. The youngest of the daughters was Indra who was
married to Surender @ Sunder, son of Ratti Ram of village
Narnaund. Indra, the deceased, was having a son aged about G
two years from this marriage. Mother-in-law of Indra had died
even before the marriage of Indra with Surender. Surender had
two brothers, namely, Pawan Kumar and Anup. Allegedly, Ratti
Ram, father-in-law of Indra, was interested in the children of his
sister-in-law (sali) more than his own children. Ratti Ram had H
424 SUPREME COURT REPORTS [2012] 4 S.C.R.
A obtained a loan on his own land and purchased a tractor for
the children of his sister-in-law. Due to this, there was
annoyance in the family and particularly, Indra and Surender
had raised protest. Having come to know of this protest, Satish
and Sunil son of Shamsher Singh resident of Jamni and Pawan
B son of Ratti Ram had threatened Indra that they would kill her.
Satish and Sunil, along with Pawan, had also taken the cattle
and other household articles from the house of Ratti Ram with
his permission. Ratti Ram had even started living in the house
of Sunil and Satish. After being pressurized by his family
C members, Ratti Ram, along with his son, had come back to his
house in Narnaund but the cattle and other household articles
that he had taken while going to the house of Sunil were not
brought back by Ratti Ram to his own house. Indra had
protested against Ratti Ram not bringing the cattle and
household articles to their house. This further annoyed Sunil,
0
Satish, etc.
6. On 9th February, 1999, lshwar Singh, PW-11 had gone
to the house of his sister Indra. Satish, Sunil and Pawan had
also come to Narnaund and all of them stayed in the house of
E Ratti Ram on that day. At night, after taking meals, all these
guests slept on the ground floor, Surender went to irrigate the
fields while Indra along with her son, went to sleep in the
chobara. It is stated that at about 1.00 - 1.30 a.m. in the night,
PW11 heard loud voices coming from the chobara as well as
F the indication of somebody falling down and rising. When he
went up to the chobara, he saw that Ratti Ram and his son
Pawan Kumar had caught hold of the hands of Indra while
Satish and Sunil were pulling the rope that had been put around
her neck. Indra was struggling for life and was trying to free
G herself from their grip. When PW11 tried to intervene and get
Indra freed, they gave a lalkara that lshwar Singh should first
be taught a lesson for intervening in their affairs. For the fear
of death and love for life, he left the place of occurrence and
went to his house and told the story to his family members.
H Thereafter, Balwan, Rajender, Jagdish and Sultan, all residents
JITENDER KUMAR v. STATE OF HARYANA 425
[SWATANTER KUMAR, J.]
of Bhartana, came to the house of Indra and found her lying A
dead on the ground floor. There were marks of injuries on her
neck and body. She had been strangulated and murdered.
7. Having received the information and registered the FIR
(Ex.P2}, ASI Hans Raj proceeded to the place of occurrence
8
along with PW11. The Investigating Officer conducted the spot
inspection, got the place of occurrence photographed and
collected pieces of bangles, which were lying in the chobara
of the premises. After conclusion of the inquest proceedings,
the body of the deceased was sent for post mortem on 11th
February, 1999. The site plan of the place of occurrence was C
also prepared. Accused Satish was arrested on 17th February,
1999 from the bus stand at Rajthal. During the course of
investigation, he made disclosure statement to the effect that
the rope used in the crime had been kept concealed in the fields
of wheat crop of accused Ratti Ram. Upon his disclosure D
statement, the said rope was recovered, made into parcel and
sealed. On 8th March, 1999, the investigation was taken over
by SI Jagir Singh. Accused Sunil and Pawan Kumar were
arrested by him. During investigation, they got recovered the
salwar, jhumper and chunni of Indra from the kotha of Turi. E
Similarly, Jitender was taken into custody on 12th March, 1999
and upon his disclosure statement, the motorcycle was
recovered from the mechanic shop vide Exhibit P44.
8. After completion of investigation, a charge sheet was
F
filed under Section 173 of the Code of Criminal Procedure,
1973 (CrPC) charging all the five accused persons for the
offences under Sections 302, 342, 506, 120-8 and 34 IPC in
the Court of the Magistrate who committed the case to the
Court of Sessions. The prosecution examined as many as 13 G
witnesses in support of its case and also produced
documentary evidence including the report from the Forensic
Science Laboratory (FSL). After putting up the evidence
against the accused, their statements were recorded under
Section 313 CrPC and then, as already noticed, they were
convicted by the Trial Court and their conviction has been H
426 SUPREME COURT REPORTS [2012] 4 S.C.R.
A upheld by the High Court also.
9. In the backdrop of the above prosecution case and the
fact that the learned counsel appearing for the appellant in the
respective appeals have addressed distinct arguments and
referred to different evidence, we consider it appropriate to deal
8
with both these appeals separately.
Criminal Appeal No.1763 of 2008
10. While raising a challenge to the judgment of the High
C Court as well as that of the Trial Court, it is, inter alia, contended
on behalf of accused Jitender Kumar that :
(i) He has not been named in the FIR (Exhibit P2),
which fact itself shows that he has been falsely
implicated in the crime.
D
(ii) The occurrence is alleged to have taken place
between 1.00 to 1.30 a.m. on 10th February, 1999
but the FIR has been registered after undue and
unexplained delay, i.e., at 4.30 p.m. on 10th
E February, 1999. The delay in lodging the FIR is fatal
to the case of the prosecution in the facts and
circumstances of the present case.
(iii) The learned Trial Court as well as the High Court
have misread and failed to appreciate the evidence
F in accordance with law.
(iv) The alleged recovery of the motorcycle Exhibit P44
is in furtherance to the statement of Jitender
(Exhibit P43). This statement, having been made
to the police, is inadmissible in evidence and could
not be relied upon by the Court for convicting the
accused.
(v) Accused Jitender had no motive to be involved in
the crime and no role has been attributed to him so
H as to warrant his convicti,on for an offence under
JITENDER KUMAR v. STATE OF HARYANA 427
[SWATANTER KUMAR, J.]
Section 302 IPC. A
(vi) Jitender has not been convicted independently for
an offence under Section 302/34 IPC as recorded
by the learned Trial Court. Consequently, he could
not have been held guilty of the same offence with
B
the aid of Section 1208 IPC.
11. As already noticed, the FIR (Ext. P2) had been
registered by ASI Hans Raj, PW-13 on the statement of lshwar
Singh, PW-11. It is correct that the name of accused Jitender,
son of Sajjan Singh, was not mentioned by PW-11 in the FIR. C
However, the law is well-settled that merely because an
accused has not been named in the FIR would not necessarily
result in his acquittal. An accused who has not been named in
the FIR, but to whom a definite role has been is attributed in
the commission of the crime and when such role is established D
by cogent and reliable evidence and the prosecution is also
able to prove its case beyond reasonable doubt, such an
accused can be punished in accordance with law, if found
guilty. Every omission in the FIR may not be so material so as
to unexceptionally be fatal to the case of the prosecution. E
Various factors are required to be examined by the Court,
including the physical and mental condition of the informant, the
normal behavior of a man of reasonable prudence and
possibility of an attempt on the part of the informant to falsely
implicate an accused. The Court has to examine these aspects
F
with caution. Further, the Court is required to examine such
challenges in light of the settled principles while keeping in mind
as to whether the name of the accused was brought to light as
an afterthought or on the very first possible opportunity. The
Court shall also examine the role that has been attributed to
an accused by the prosecution. The informant might not have G
named a particular accused in the FIR, but such name might
have been revealed at the earliest opportunity by some other
witnesses and if the role of such an accused is established,
then the balance may not tilt in favour of the accused owing to
such omission in the FIR. The Court has also to consider the H
428 SUPREME COURT REPORTS [2012] 4 S.C.R.
A fact that the main purpose of the FIR is to satisfy the police
officer as to the commission of a cognizable offence for him to
conduct further investigation in accordance with law. The
primary object is to set the criminal law into motion and it may
not be possible to give every minute detail with unmistakable
B precision in the FIR. The FIR itself is not the proof of a case,
but is a piece of evidence which could be used for corroborating
the case of the prosecution. The FIR need not be an
encyclopedia of all the facts and circumstances on which the
prosecution relies. It only has to state the basic case. The
c attending circumstances of each case would further have
considerable bearing on application of such principles to a
given situation. Reference in this regard can be made to State
of U.P. Vs. Krishna Master and Ors. [(2010) 12 SCC 324) and
Ranjit Singh and Ors. Vs. State of Madhya Pradesh [(2011)
4 sec 336).
0
12. In the present case, despite the fact that the accused
Jitender has not been named in .the FIR, a definite role has
been attributed to this accused by PW-10. Further, it was on
his disclosure statement that the motor cycle, Ext. P44, has
E been recovered. PW-10, Surender has specifically stated in his
statement before the Court that Jitender was his brother-in-law.
According to this witness, after midnight at about 12.30 a.m.,
accused Satish and Jitender, while driving a motorcycle, had
come to him in the fields. They gave him beating and insisted
F that he should ask his wife to open the door of the chobara.
He was taken to his residence in the village and out of fear, he
asked his wife to open the door which she did as earlier she
had bolted the shutters from inside. After the door was opened,
Ratti Ram, Pawan, Satish and Sunil entered the chobara.
G Jitender thereafter, is stated to have taken out a synthetic rope
from the dicky of the motorcycle and handed over the same to
Satish. After handing over the rope, Jitender declared that he
would take Sunder back to the fields and exhorted that Indra
be killed to solve all problems in the future. According to this
H witness, he was forced by Jitender to drive the motorcycle back
JITENDER KUMAR v. STATE OF HARYANA 429
[SWATANTER KUMAR, J.]
to the fields. Further, Jitender is stated to have been a party to A
illegally confining PW-10 after the commission of the crime.
Moreover, in the cross-examination of this witness, not even a
suggestion was put to him that Jitender was not present and/
or had not accompanied him on the motor cycle to the fields.
On the contrary, the matters in relation to the property, for which B
protest was raised by Indra have clearly been stated therein.
13. We must also notice that the fact that PW11 did not
name the accused Jitender in the FIR adds to the credibility of
this witness rather than creating a doubt in the case of the
prosecution. PW-11 in his statement clearly stated that all the C
accused except Jitender were present in the Chobara and had
murdered his sister Indra. This reflects the truthfulness of PW-
11. The occurrence of the events as per the case projected by
the prosecution is that PW-11 had not met Jitender in the
Chobara because Jitender had gone to the fields to bring PW- D
10 forcibly and under threat to his house and after getting the
door opened by Indra and handing over the rope to the other
accused, Jitender had taken PW-10 back to the fields. When
PW-11 came to the Chobara and noticed the other accused
persons killing Indra, Jitender had already left along with PW- E
10 and as such, there was no occasion for PW-11 to see
Jitender at the place of occurrence in the Chobara. Therefore,
he rightly did not name Jitender in the FIR as one of the persons
present in the chobara who committed the murder of his sister.
There was no occasion or reason for PW-10 to implicate F
Jitender falsesly as Jitender was also known and related to him.
This accused was duly identified in the Court by this witnesses.
PW-10 and PW-11 both cannot be stated to be planted
witnesses. They are natural and reliable witnesses. Of course,
the learned Trial Court has expressed certain observations G
about the immature behavior of PW-10 and even directed
action against him with regard to inflicting injury and illegal
confinement, but the Trial Court did not cast any doubt on the
material aspects of the occurrence in the crime committed by
the accused.
H
430 SUPREME COURT REPORTS [2012] 4 S.C.R.
A 14. The High Court also believed PW-10, although it
observed that he behaved like a husband under fear and
exhibited his paramount interest in the property. These
observations do not in any way affect the case of the
prosecution because the incident, as narrated by the
B prosecution witnesses and particularly by PW-1 O and PW-11,
is also corroborated by other expert evidence on record.
15. In the case of Tika Ram v. State of Madhya Pradesh
[(2007) 15 sec 76()1, the Court was concerned with an
argument that the name of the accused was not mentioned by
C the witnesses in the FIR and it would not, by itself, be sufficient
to reject the case of the prosecution against the accused.
Rejecting such a contention, the Court noticed that brother of
the deceased having come to know of the incident came to the
place of occurrence and having seen only a part of the incident
D informed the police. Therefore, in that process, if he failed to
mention the name of the appellant, it was not a circumstance
which would be sufficient to discard the evidence of such
witness and non-mentioning of the name of the accused would
not be a material lapse.
E 16. The learned counsel appearing for these accused/
appellant while relying upon the judgment of this Court in the
case of Aloke Nath Dutta & Ors. V. State of West Bengal
[(2007) 12 sec 230], argued that the confessions in the
present case have not been recorded in the manner
F contemplated by law and the confession cannot be taken on
record where it incorporates both admissible and inadmissible
parts thereof together.
17. In the disclosure statement of accused Jitender, Ext.
G P43, it has been recorded, "after conspiring for murdering Indra,
wife of Sunder, we had used Hero Honda Motor Cycle bearing
registration No. CHl/2088 of Satish in that murder, for going and
coming. I have kept that motor cycle now in the shop of Sat Pal
Mistry, r/o Jind. After pointing out, I can get the same
recovered". On this disclosure, memo of recovery was prepared
H and signed.
JITENDER KUMAR v. STATE OF HARYANA 431
[SWATANTER KUMAR, J.]
18. This contention of the learned counsel for the appellant A
need not detain us any further as the law in this regard has been
settled by various pronouncements of this Court. What has been
recorded in Ext.P43 cannot be taken to be confession of the
accused in relation to commission of the crime, but the other
part by which the motor cycle was recovered, would be the B
portion admissible in evidence. The admissible part can very
safely be segregated from the inadmissible part in this
statement.
19. It may be noted that in the very judgment of Aloke Nath
Dutta (supra) relied upon by the counsel for the appellant, this C
Court has clearly stated as follows :
• ... We intend to point out that only that part of confession
is admissible, which would be leading to the recovery of
the dead body and/or recovery of the articles of Biswanath; o
the purported confession proceeded to state even the
mode and manner in which Biswanath was allegedly killed.
It should not have been done. It may influence the mind of
the court."
20. In the case of Anter Singh v. State of Rajasthan [(2004) E
10 SCC 657], this Court clearly stated the principle, "it is
fallacious to treat the 'fact discovered' within the section as
equivalent to the object produced; the fact discovered embraces
the place from which the object is produced and the knowledge
of the accused as to this, and the information given must relate F
distinctly to this fact. Information as to past user, or the past
history, of the object produced is not related to its discovery in
the setting in which it is discovered."
21. Neither the trial Court nor the High Court has relied G
upon Ext. P43 for the purpose of holding the accused guilty of
the offence. Both these authorities have only noticed the fact
of recovery of the motor cycle in furtherance to the disclosure
statement made by this accused. In our considered opinion,
there is no such infirmity pointed out by the counsel appearing H
432 SUPREME COURT REPORTS [2012] 4 S.C.R.
A for the appellant which would vitiate the very recovery of the
motor cycle in terms of Section 27 of the Indian Evidence Act,
1872 (hereafter the "Evidence Act"). The fact that motorcycl~
was used by the accused Jitender for the purpose of bringing
PW-10 from the fields to his residence and after getting the door
8 opened by Indra, was again used for dropping PW-10 to the
fields is fully corroborated. The recovery of motorcycle, Exhibit
P44, is a fact which provides a link between recovery of
motorcycle and its use by the accused in commission of the
crime. This fact is also proved by the statement of PW10. This
C statement of the accused has not been treated as a confession
of the accused by the courts and rightly so because, it could
not have been treated as a confession of the accused, firstly,
because it was made to the police and secondly, such a
statement would not be admissiflle in terms of Section 27 of
the Evidence Act.
0
22. We shall shortly proceed to discuss the argument of
the learned counsel for the appellant that there was unexplained
and inordinate delay in lodging the FIR and the courts have
failed to appreciate the evidence in this prospective, when we
E deal with the appeal of Satish, Sunil and the other two co-
accused.
23. Coming to the last argument on behalf of accused
Jitender that he had been acquitted by the trial court for an
F offence under Section 302 read with Section 1208 IPC, this
argument is again devoid of any merit. The accused Jitender
was charged with ar:i offence punishable under Section 1208
IPC for he and other co-accused had conspired to do an illegal
act and commit the murder of Indra. It is thereby correct that
no separate charge under Section 302 read with Section 34
G IPC had been framed against the accused Jitender. However,
he was charged with an offence punishable under Section 323
read with Section 34 IPC for which he was acquitted. It is also
correct that the learned trial Court has specifically noticed in
its judgment that accused Jitender Kumar had not been
H charged separately for an offence under Section 302 read with
JITENDER KUMAR v. STATE OF HARYANA 433
[SWATANTER KUMAR, J.]
Section 34 IPC and if he was also present, then the provisions A
of Section 149 IPC would be applicable and in the event, the
charge ought to be framed under that provision. We are unable
to find any error in this approach of the trial Court. But, equally
true is that the trial Court, for valid reasoning and upon proper
appreciation of evidence, convicted this accused for an offence B
under Section 1208 of the IPC and, thus, for an offence under
Section 302 IPC as well.
24. A bare reading of Section 1208 provide? that whoever
is a party to a criminal conspiracy to commit an offence C
punishable with death, imprisonment for life or rigorous
imprisonment for a term of two years or upwards, shall, where
no express provision is made in the IPC for the punishment of
such a conspiracy, be punished in the same manner as if he
had abetted such offence.
D
25. In other words, once the Court finds an accused guilty
of Section 1208, where the accused had conspired to commit
an offence and actually committed the offence with other
accused with whom he conspired, they all shall individually be
punishable for the offence for which such conspiracy was E
'hatched. Thus, we do not find any error in the judgment of the
trial court in convicting the accused for an offence under Section
1208 read with Section 302 IPC.
Criminal Appeal No. 1092
F
26. In this appeal, the challenge to the findings recorded
in the impugned judgment is on the ground that firstly there has
been inordinate and unexplained delay in lodging the FIR, even
though the police station was quite near to the place of
occurrence and secondly, that the time of occurrence cannot G
be validly related to the expert medical evidence and on this
count itself, the accused would be entitled to the benefit of doubt.
This question, in fact, arises in both these appeals, and
therefore, can conveniently be dealt with at this stage.
27. The FIR Ext. P-2 was recorded at 4.40 p.m. on 10th H
434 SUPREME COURT REPORTS [2012] 4 S.C.R.
A February, 1999, in which the time of occurrence was recorded
as 1.00 to 1.30 a.m. of the same date. This FIR had been
registered on the basis of the statement of lshwar Singh, PW-
11 who, as already noticed, was the eye-witness to the
occurrence. He clearly stated in his statement that after having
B the dinner, Indra along with her child had gone to chobara to
sleep and all of them were sleeping on the ground floor. At
about 1.00 or 1.30 a.m., he heard voices from the chobara. He
went upstairs and saw that the accused Ratti Ram and Pawan
Kumar had caught hold of the deceased Indra and the accused
c Satish and Su nil were strangulating her with the help of a rope.
Despite her struggle, she was not able to free herself from the
grip of the accused persons and when he tried to intervene, he
was also threatened with dire consequences. As a result, he
went away to his village Bhartana to inform his family members
about the incident. At that time, PW-11 was not aware of the
0
fact that Indra had already died. It is only when he came back
to the house of Ratti Ram along with Mange Ram, Rajender,
Jagdish and Sultan Singh, all resident of village Bhartana, that
they all saw the deceased Indra lying dead. That is how they
came to know that Indra had been strangulated and murdered
E by the accused. It was thereafter that lshwar Singh, PW11) went
to the Police Station to report the incident and met ASI Hans
Raj near Aasan Chowk, Narnaund who recorded his statement
and after making endorsement, sent it to the Police Station for
registration of the case.
F
28. Undoubtedly, it has come in the statement of PW-1 that
the house depicted in Ext. P-1 i.e. the place of occ1;1rrence, was
situated in the township of Narnaund and was at a distance of
150 metres, from the police station. This piece of evidence
G does not advance the case of the accused favourably.
According to the prosecution, Indra was killed by the fami.ly of
her in-laws. Most unfortunately, her husband, PW10, partly
because of fear and partly out of greed for property, became
a mere spectator to the crime. PW11, lodged the FIR and
H PW10 corroborated the version given in the FIR about the
JITENDER KUMAR v. STATE OF HARYANA 435
[SWATANTER KUMAR, J.]
murder of his wife. He claimed that he was illegally confined A
by the accused Jitender and Sunil and therefore, after the
murder, he was unable to approach the police station. In these
circumstances, of course, the conduct of PW-10 and PW-11
is somewhat strange, but their statements cannot be falsified
on this ground. B
29. PW-11 could have gone to the police station straight
away, but he instead preferred to go to his village first and came
back with the others. His behavior at the time of occurrence
might have been abnormal as he had been threatened with dire C
consequences by the accused persons. Thus, he went to his
village and brought his relations and friends to see if the matter
could be resolved. But by the time he reached the house of Ratti
Ram, Indra had already been murdered. In these
circumstances, some delay in registering the FIR was inevitable
and it is not such inordinate delay which could be construed D
as a ground for acquittal of the accused, as the prosecution has
been able to prove its case beyond reasonable doubt.
30. It is a settled principle of criminal jurisprudence that
mere delay in lodging the FIR may not prove fatal in all cases, E
but in the given circumstances of a case, delay in lodging the
FIR can be one of the factors which corrode the credibility of
the prosecution version. Delay in lodging the FIR cannot be a
ground by itself for throwing away the entire prosecution case.
The Court has to seek an explanation for delay and check the
F
truthfulness of the version put forward. If the Court is satisfied,
then the case of the prosecution cannot fail on this ground
alone. [Ref. Yakub lsmailbhai Patel v. State of Gujarat [(2004)
12 SCC 229], State of Rajasthan v. Shubh Shanti Services
Ltd. V. Manjula S. Agarwal/a & Ors. ((2000) 5 SCC 30].
G
31. Now, we shall deal with the other aspect of the
argument advanced on behalf of the appellants, i.e. in relation
to uncertainty in the time of occurrence as well as death of the
deceased, with reference to expert evidence. The contention
is that as per the statement of PW-10 and PW-11, they all had H
436 SUPREME COURT REPORTS [2012] 4 S.C.R.
A their dinner together whereafter, PW-10 had gone to the fields
for irrigating the fields and others had slept at the ground floor,
except Indra and her child, who had gone to chobara to sleep.
The occurrence is stated to have taken place between 1.00 to
1.30 a.m. However, according to the medical evidence, there
B was semi-digested food found in the stomach of the deceased.
Therefore, it was not possible to state that she was murdered,
as alleged, between 1.00 to 1.30 a.m. as by that time more than
four hours would have elapsed and undigested food could not
have been found in the stomach of the deceased.
c 32. The body of the deceased was subjected to post
mortem conducted by Dr. LL. Bundela, PW-3, who, after
describing the seven injuries on the body of the deceased, had
stated, "the stomach contained semi-digested food small
intestines contained chyme and the large intestines contained
D faecal matter. The uterous was non-gravid."
33. In his further examination-in-chief, PW-3 had clearly
stated, "it is possible that the death of Smt. Indra might have
been caused at 1.30 a.m. on 10.2.99". In cross-examination,
E he stated, "It takes 2 to 3 hours for the digested or undigested
food to leave the stomach".
34. According to the accused, this causes a serious doubt
in the very basis of the prosecution story. This argument
appears to be of some significance at the first brush, but when
F examined in depth in light of the entire evidence, it clearly lacks
merit.
35. Neither PW-10 nor PW-11 has stated as to the exact
time at which Indra had her dinner. It is a matter of common
G knowledge that in the villages, ladies normally provide food to
the guests and the other members of the family first and are
last to have the food themselves. None of the witnesses have
given the time when all the persons had their dinner. But,
according to both these witnesses, after having the dinner they
H had gone to sleep except PW-10 who had gone to the fields
JITENDER KUMAR v. STATE OF HARYANA 437
[SWATANTER KUMAR, J.]
for irrigation purposes. This obviously means that they would A
have had dinner after 8 or 9 p.m., whereafter they went to sleep.
Indra presumably had dinner thereafter and went to sleep later.
She was murdered between 1.00 to 1.30 a.m. which means
between 4 to 5 hours of having her dinner. The evidence of PW-
3 categorically states that it was possible that Indra was B
murdered between 1.00 to 1.30 a.m. This was duly corroborated
by PW-11. The investigation conducted by PW6, PW12 and
PW13 also indicates that she was murdered during that period.
It is significant to notice that after PW-3 stated in his further
examination that Indra might have been murdered between 1.00 c
to 1.30 a.m., no suggestion was put to this witness that the said
witness was stating incorrectly or that it was not possible to
reconcile the statement of PW-3 i.e. the expert evidence, with
the version of the prosecution. Once, this statement of PW-3
remained unchallenged and there exist other prosecution
0
evidence to support the said version, the Court would not be
inclined to treat it as a significant doubt in the case of the
prosecution.
36. According to PW-11, he had gone to the house of his
sister Indra, at about 7 p.m. and had found the accused present E
there. This time given by the witness also indicates that all the
accused as well as the informant had their dinner after 8 p.m.
or so. The time of death given by PW-3, thus, cannot be falsified
only on the ground of an argument that there was some
undigested food found in the stomach of the deceased. F
37. Further, it is contended on behalf of the accused that
the time of death of the deceased cannot be stated with
certainty with reference to the evidence on record and this being
a very important factor, would lead to the acquittal of the G
accused. Reliance in this regard has been placed upon the
judgment of this Court in the case of Shambhoo Missir & Anr.
v. State of Bihar [(1990) 4 SCC 17]. In that case, this Court
found that the allegations of the prosecution were that the death
had occurred at 3.00 p.m. No such undigested food could have
been found at that hour when the food was taken by the H
438 SUPREME COURT REPORTS [2012] 4 S.C.R.
A deceased at 8.00 a.m. and if this be so, then the whole case
of the prosecution could crumble. It may be noticed that in that
case, it had been established by definite and cogent evidence
that the deceased had taken the meals before 8.00 a.m. and
the death had occurred at 3.00 p.m. and the undigested food
B particles were found in the stomach of the deceased. This
observation of the Court cannot be treated as a statement of
law but is a finding recorded with reference to the facts of that
case.
38. The entire basis for this submission is the statement
C of PW3, Dr. LL. Bundela, who stated that the stomach of the
deceased contained some semi-digested food. It is worthwhile
to note that the statement of this very witness that the death of
Indra could have taken place between 1.00 to 1.30 a.m.
remained unchallenged. Furthermore, it cannot be stated as a
D rule of universal application that after a lapse of two to three
hours stomach of every individual, without exception, would
become empty. It would depend upon a number of other factors
like the caloric content and character of the solid food. Further,
addition of fats, triglycerides and carbohydrates such as
E glucose, fructose and xylose to a solid meal can delay its
emptying from the stomach, presumably because of their effect
on the initial lag phase of digestion of solids. Furthermore, the
presence of liquids in the stomach prolongs this initial lag phase
of solid emptying. In fact, ingestion of a liquid bolus 90 minutes
F after a solid meal can induce a second lag phase of solid
emptying from the stomach. Foods high in fat content are
handled duly by the stomach and their emptying pattern should
be considered separately from those of other liquids and solids.
Many foods are solid or semi-solid prior to their ingestion.
G However, after they are consumed and warmed to the body
temperature in the stomach, they are converted into a liquid.
Despite this, the liquid foods are emptied from the stomach
much more slowly than are the aqueous liquids. This aspect has
been dealt with by prominent authors on the subject with definite
H emphasis on emptying of stomach. The gastric emptying of
JITENDER KUMAR v. STATE OF HARYANA 439
[SWATANTER KUMAR, J.]
indigestible solids have been appropriately dealt with in the A
Textbook of Gastroenterology, Volume One, by Tadataka
Yamada, David H. Alpers, Chung Owyang, Don W. Powell and
Fred E. Silverstein, as follows:
"Gastric Emptying of Indigestible Solids
B
The final class of consumed components of a meal to be
discussed are the indigestible solids, that nonnutritive
fibrous debris remaining from a meal that is not emptied
with the dispersible, calorie-containing digestible solids. In
general, indigestible solids exist the stomach with initiation C
of the gastric phase Ill activity of the MMC after completion
of the fed motor pattern. The main characteristic that
distinguishes the phase Ill motor pattern from fed motor
activity is the presence of an open pylorus during fasting,
which permits intestinal delivery of large particles. D
The major factor in determining when an indigestible
solid is emptied from the stomach is its size. Indigestible
spheres smaller than 1mm in diameter freely pass into the
intestine during the fed period, often at rates faster than
solid nutritive food. Larger spheres pass more slowly, E
usually after an initial lag period, with spheres up to 2.4 mm
in diameter passing with the calorie-containing
components of a solid meal. Spheres as large as 7 mm
do not empty with solid food at all and are retained until
gastric phase Ill activity resumes in the interdigestive F
period. It has been reported that undigested materials as
large as 2 cm in diameter can pass into the intestine during
the fasting period under normal conditions.
Other physical factors play a role in determining the G
gastric emptyi11g of indigestible solid material .... ."
39. Besides the above, with regard to the external
regulation of gastric emptying, it has been stated that in addition
to being controlled by various characteristics of the ingested
H
440 SUPREME COURT REPORTS [2012] 4 S.C.R.
A bolus within the stomach, there is extensive modulation of
gastric emptying by external influences. Gastric motility and
emptying is also subject to extensive modulation by the central
nervous system. The nutritional properties of an ingested liquid
modify the speed at which it exits the stomach. Because of this,
B carbohydrate, protein or fat containing liquids can be digested
and absorbed completely prior to reaching the distal small
intestine. Certain physical characteristics of the ingested meal
may alter the function of the stomach to selectively retain or
expel the large particles. If the viscosity of the meal is increased
c sufficiently, the ability of the stomach to discriminate between
large and small particles is aoolished and much larger particles
may be delivered into the duodenum.
40. The above findings are based on medical studies and
are well-established in the field of gastroenterology.
D
41. It may be useful at this stage to refer to Modi's 'Medical
Jurisprudence and Toxicology', Twenty Third Edition, which has
specifically concluded that there is no absolute and definite
standard that every human being would empty his stomach
E within two to three hours of taking the meals, irrespective of
what kind of meal had been taken by the concerned person.
42. Judging the time of death from the contents of the
stomach, may not always be the determinative test. It will require
due corroboration from other evidence. If the prosecution is able
F to prove its case beyond reasonable doubt and cumulatively,
the evidence of the prosecution, including the time of death, is
proved beyond reasonable doubt and the same points towards
the guilt of the accused, then it may not be appropriate for the
Court to wholly reject the case of the prosecution and to
G determine the time of death with reference to the stomach
contents of the deceased.
43. While discussing various judgments of this Court, Modi
in the aforesaid book at page 543 has recorded as under: -
H
JITENDER KUMAR v. STATE OF HARYANA 441
[SWATANTER KUMAR, J.]
" .... The state of the contents of the stomach found at the A
time of medical examination is not a safe guide for
determining the time of the occurrence because that would
be a matter of speculation, in the absence of reliable
evidence on the question as to when the deceased had
his last meal and what that meal consisted of [Masjit Tato B
Rawoo/ v. State of Maharashtra, (1971) SCC (Cr.) 732;
Gopal Singh v. State of Uttar Pradesh, AIR 1979 SC
1932; Shea Darshan v. State of Uttar Pradesh, (1972)
SCC (Cr) 394]. The presence of faecal matter in the
intestines is not conclusive, as the deceased might be c
suffering from constipation. Where there is positive direct
evidence about the time of occurrence, it is not open to
the court to speculate about the time of occurrence by the
presence of faecal matter in the intestines [Shea Dershan
v. State of Uttar Pradesh (1972) SCC (Cr.) 394]. The D
question of time of death of the victim should not be
decided only by taking into consideration the state of food
in the stomach. That may be a factor which should be
considered along with other evidence, but that fact alone
cannot be decisive[R. Prakash v. State of Uttar Pradesh
E
(1969) 1 sec 48, 50J
44. Such an approach would even otherwise be justifiable
as in some cases the evidence may not be sufficient to
establish as to what the last meal was and what article of food,
if any, was taken by the deceased. So also, the 'sluggish F
chronometric sense of the countryside community of India is
notorious' and even urban folk make mistakes about time, when
there is no particular reason to observe and remember a minor
event like taking of a morning meal. In such circumstances
where semi-digested food was found in the stomach, the G
contention, that it must be inferred from it that the occurrence
must have taken place after the deceased had taken his
evening meal may not be accepted.
45. This Court in the case of Shivappa v. State of
H
442 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Karnataka [(1995) 2 SCC 76] stated the dictum that medical
opinion is admissible in evidence like all other types of
evidence and there is no hard-and-fast rule with regard to
appreciation of medical evidence. It is not to be treated as
sacrosanct in its absolute terms. Agreeing with the view
B expressed in Modi's book on Medical Jurisprudence and
Toxicology, this Court recorded that so far as the food contents
are concerned, they remain for long hours in the stomach and
the duration thereof depends upon various other factors.
Indisputably, a large number of factors are responsible for
c drawing an inference with regard to the digestion of food. It may
be difficult, if not impossible, to state exactly the time which
would be taken for the purpose of digestion.
46. Similarly, in the case of Jabbar Singh v. State of
Rajasthan [(1994) SCC (Cr.) 1745], the Court while dealing
D with the evidence of DW-1 who had opined that since there was
some semi-digested food, the occurrence must have taken
place earlier and not at 3.00 a.m. The Court reiterated the
principle that this was an opinion evidence and the possibility
of the deceased having eaten late in the night could not be ruled
E out.
47. In View of the above medical references, the view
expressed in Modi's book (supra) and the principles stated in
the judgments of this Court, it can safely be predicated that
F determination of the time of death solely with reference to the
stomach contents is not a very certain and determinative factor.
It is one of the relevant considerations. The medical evidence
has to be examined in light of the entire evidence produced by
the parties. It is certainly a relevant factor and can be used as
G a significant tool by the Court for coming to the conclusion as
to the time of death of the deceased but other factors and
circumstances cannot be ignored. The Court should examine
the collective or cumulative effect of the prosecution evidence
along with the medical evidence to arrive at the correct
conclusion. There is no evidence in the present case which
H
JITENDER KUMAR v. STATE OF HARYANA 443
[SWATANTER KUMAR, J.]
establishes, with exactitude, the time at which the accused, the A
deceased and the eye-witness (PW11 )had their dinner. The
only evidence is that they had dinner and after having dinner
they had gone to sleep. This necessarily would apply that they
had dinner late and not in the early hours of the evening. As
already noticed, according to PW11, he had come to his B
sister's house at about 7.00 p.m., whereafter all the events
occurred. The evidence of PW3 also remained unchallenged
that the death of Indra had taken place between 1.00 a.m. to
1.30 a.m. on 10th February, 1999. Therefore, we find no
reason to accept this contention on behalf of the appellant. c
48. The next contention raised on behalf of the appellant
is that both the accused persons, Sunil and Satish, were
residents of a village which was far away from the place of
occurrence and they were not present at the place of
occurrence. Furthermore, they also questioned the very D
presence of the eye-witness, PW11, on the fateful day at the
scene of occurrence. The statement of the sole witness is not
trustworthy, particularly when the said witness himself has not
partially been believed by the trial Court. The mere fact that the
accused were residents of a village at some distance would E
be inconsequential. As per the statement of the witnesses, both
these accused were seen by them in the house of Ratti Ram
where the deceased was murdered. We are also unable to
accept the contention that presence of PW10 and PW11 at the
place of occurrence was doubtful and the statements of these F
witnesses are not trustworthy. Reliance on behalf of the
accused has been placed on the judgment of this Court in the
case of Rupchand Chindu Kathewar v. State of Maharashtra
[(2009) 17 sec 37]. In that case the Court, as a matter of fact,
found that the statement of PW2 was not qualitatively G
unimpeachable. Having disbelieved the sole witness, the Court
had given benefit of doubt to the accused. However, the Court
had found that the prosecution case was not even supported
by medical evidence and the conduct of the said witness was
very unnatural.
H
444 SUPREME COURT REPORTS (2012] 4 S.C.R.
A 49. We are unable to understand as to what assistance
the learned counsel for the appellant wishes to derive from the
facts of this case. We are to deal with the present case on its
own facts. Both the trial court and the High Court have believed
PW10 and PW11 and have returned a finding of guilt against
B the accused. The Courts have adversely commented upon the
conduct of these witnesses but not with regard to the material
events of the prosecution case. PW10 was under threat and
confinement of his own family members as well as friends of
the accused, who had conspired to kill Indra, that is how he
C obeyed the command of Jitender and others in coming from
the fields on the motorcycle and getting the door of Chobara
opened by Indra where she was sleeping with her child. He
claims to have been under continuous threat and illegal
confinement of Jitender and the other accused. It was PW10's
own house where the murder has taken place and, therefore,
0
his presence in the house cannot be doubted in the normal
course. PW11 is the brother of the deceased and he had come
late in the evening to meet his sister and sort out the issues
with regard to the return of the properties which Ratti Ram had
given to the appellants herein, Satish and Sunil.
E
50. The statement of PW11 also finds corroboration from
the medical evidence. PW3, Dr. LL. Bundela, has stated that
besides ligature marks on her neck, the face of the deceased
was swollen and congested. Six other injuries were found on
F the body of the deceased. There were abrasions on elbow and
wrist of the deceased. She had also suffered abrasion injury
on her left eyebrow and on dissection, infiltration of blood was
found present in the subcutaneous tissues. The post mortem
report, Ex.P4 to PS, states the cause of the death, as per
G opinion of the Board, as asphyxia due to strangulation, which
was ante mortem in nature and sufficient to cause death in the
ordinary course of nature. This medical evidence fully
corroborates what had been testified by PW11. According to
that witness, Ratti Ram and Pawan had held the hands of Indra
H while Sunil and Satish were strangulating her by putting put a
JITENDER KUMAR v. STATE OF HARYANA 445
[SWATANTER KUMAR, J.]
rope around her neck. She struggled to free herself from the A
grip of these persons but in vain. Later, it was found that she
had been killed. It is a case where the ocular evidence of PW11
is corroborated by medical evidence and is also partially
supported by the statement of PW10, the hu'sband of the
deceased. Thus, in our considered view, the statements of B
PW10 and PW11 cannot be said to be doubtful or which cannot
be believed by the Court. Their presence at the place of
occurrence was natural and what they have stated is not only
plausible but completes the chain of events in the case of the
prosecution. c
51. The accused in the present appeal had also taken the
plea of alibi in addition to the defence that they were living in a
village far away from the place of occurrence. This plea of alibi
was found to be without any substance by the Trial Court and
was further concurrently found to be without any merit by the D
High Court also. In order to establish the plea of alibi these
accused had examined various witnesses. Some documents
had also been adduced to show that the accused Pawan Kumar
and Sunil Kumar had gone to New Subzi Mandi near the booth
of DW-1 and they had taken mushroom for sale and had paid E
the charges to the market committee, etc. Referring to all these
documents, the trial court held that none of these documents
reflected the presence of either of these accused at that place.
On the contrary the entire plea of alibi falls to the ground in view
of the statements of PW-10 and PW-11. The statements of F
these witnesses have been accepted by the Courts below and
also the fact that they have no reason to falsely implicate the
accused persons. Once, PW-10 and PW-11 are believed and
their statements are found to be trustworthy, as rightly dealt with
by the Courts below, then the plea of abili raised by the accused G
loses its significance. The burden of establishing the plea of
alibi lay upon the appellants and the appellants have failed to
bring on record any such evidence which would, even by
reasonable probability, establish their plea of alibi. The plea of
alibi in fact is required to be proved with certainty so as to H
446 SUPREME COURT REPORTS (2012] 4 S.C.R.
A completely exclude the possibility of the presence of the
accused at the place of occurrence and in the house which was
the home of their relatives. {Ref. Shaikh Sattar v. State of
.
Maharashtra [(2010) 8 SCC 430]} .
52. It has been correctly contended on behalf of the
8
appellants while relying upon the judgment of this Court in the
case of S.P. Bhatnagar v. State of Maharashtra [(1979) 1 SCC
535], that statement of the co-accused recorded under Section
313 Cr.PC cannot be used against the other co-accused. Ratti
Ram, in his statement under Section 313 CrPC, had admitted
C material parts of the prosecution case including that he had
parted away with a buffalo, some household articles and cash
amount of Rs.50,000/- in favour of the family of Satish and
Sunder and that Indra had objected to it. He also admitted that
the door was opened by Indra on the asking of Surender, whom
D Jitender had brought on motor cycle from the fields. However,
he denied having committed the murder of Indra.
53. The proposition of law advanced by the counsel for the
appellants cannot be disputed. The fact of the matter remains
E that statement of Ratti Ram under Section 313 CrPC is part of
the judicial record and could be used against Ratti Ram for
convicting him, if the prosecution had proved its case in
accordance with law. Ratti Ram, unfortunately, died during the
pendency of the proceedings. The part of his statement that
F supports the case of the prosecution as well as the statement
of PW-10 and PW-11 can be relied upon by the prosecution
to a limited extent. This statement may not be used against the
present accused as such, but the fact that the statement of Ratti"
Ram under Section 313 CrPC supports the case of the
prosecution cannot be wiped out from the record and would
G have its consequences in law. Without using the statement of
Ratti Ram against these accused, the courts below have
correctly relied upon the statement of PW-10 and PW-11 and
the medical evidence. This finding recorded by the Courts
cannot, therefore, be faulted with.
H
JITENDER KUMAR v. STATE OF HARYANA 447
[SWATANTER KUMAR, J.]
54. The present accused have not been convicted on the A
basis of a mere suspicion. The prosecution has been able to
establish its case beyond reasonable doubt by ocular,
documentary and medical evidence. The bangles which were
recovered from the place of occurrence and the injuries that
were inflicted upon the body of the deceased cleClrly show that B
she struggled for life and was murdered at the hands of
accused. Thus, it is not a case of mere suspicion and the
reliance placed by the counsel upon the judgment of this Court
in Nachhatar Singh v. State of Punjab [(1976) 1 SCC 750), is
entirely misplaced.
c
55. We have already noticed that Pawan Kumar had
preferred a separate appeal which came to be dismissed by
this Court on the ground of delay as well as on merits vide its
order dated 14th October, 2011. Of course, dismissal of the
SLP at the admission stage itself may not adversely affect the D
case of the present appellants. In the case of Ja/pat Rai and
Ors. v. State of Haryana [JT 2011 8 SC 55], this principle has
been enunciated by stating that dismissal of SLP summarily
does not mean affirmation of the judgment of the High Court
on merits and does not even amount to acceptance of the E
correctness of the High Court decision. We do not intend to
dwell on this issue any further.
56. We also do not propose to rely upon the dismissal of
the SLP filed by Pawan Kumar since we have come to an
independent conclusion on merits that the prosecution in the F
present case has been able to bring home the guilt of the
appellants-accused and the judgment of the High Court under
appeal does not call for any interference.
57. For the reasons afore-mentioned, both the above G
appeals are dismissed.
R.P. Appeals dismissed.
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