SWARN KAURversusGURMUKH SINGH AND ORS.

                        [2013] 10 S.C.R. 664


A                           SWARN KAUR
                                   V.
                   GURMUKH SINGH AND ORS.
                (Criminal Appeal No. 1624 of 2008)
                            JULY 3, 2013
B
         [CHANDRAMAULI KR. PRASAD AND FAKKIR
            MOHAMED IBRAHIM KALIFULLA, JJ.]

         Penal Code, 1860 - s. 304 (Part II) - Conviction under ss.
C   302134 and 201134 by trial court - Acquittal by High Court -
    Held: Inflicting of injury by the accused and the ultimate death
    of the deceased due to the said injury has been proved
    without any iota of doubt - The conduct of the accused in
    deliberately failing to identify the dead-body of the deceased,
o   lodging missing report of the deceased and the conduct of
    negotiating with the wife of the deceased, go against the
    accused - They are guilty of causing death of the deceased -
    However, nature of injury and weapons used do not suggest
    intention of causing death - Hence conviction altered to one
E   under s. 304 (Part II) - Accused sentenced to 7 years RI and
    fine of Rs.50,0001- each imposed - Direction to pay Rs. 2
    lakhs to the complainant (wife of the deceased) out of the fine
    amount.

       Respondents-accused, alongwith two other
F accused, were prosecuted for the offences punishable ul
  ss. 302/34 and 201/34 IPC. The prosecution case was that
  respondent-accused No.2 had taken the deceased
  alongwith his group on pilgrimage tour, as a cook. The
  deceased was beaten by the accused party as they were
G not satisfied with the quality of food prepared by him.
  Thereafter, he was taken towards a rivulet in a jeep-taxi
  belonging to PW-6. On the next morning, the body of the
  deceased was found near the rivulet. Information about
  the same was given to the police. In the meantime,
H                                 664
   SWARN KAUR v. GURMUKH SINGH AND ORS.                 665

accused persons also gave missing report of the                A
deceased to the police. PW 17 (police official) directed
them to go to the rivulet so as to find out whether the
dead-body was that of their missing companion. The
accused persons, after in~pecting the body said that it
was not that of the deceased. The accused persons,             B
after returning home, initially told the appellant-
complainant (wife of the deceased) that the deceased
was missing. Two of the accused again met her and told
about the death of the deceased. They also negotiated
for a settlement by way of payment of a sum of Rs.             c
1,00,000/- as compensation. The appellant-complainant
thereafter lodged FIR. She identified the deceased from
the photo of the dead-body which was found near the
rivulet.
    Trial court found the respondents-accused Nos.1 to         D
5, guilty of the charges u/ss. 302/34 and 201/34 IPC.
Accused Nos. 6 and 7 were acquitted of all the charges.
High Court set aside the conviction of the respondents-
accused. Hence the present appeal by the complainant.
                                                               E
    Allowing the appeal, the Court

     HELD: 1.1. In view of the admitted facts of the case,
the High Court failed to analyze all the circumstances
which were existing, while only a few of them were noted       F
by the High Court while examining the correctness of the
judgment of the trial court. Each one of the
circumstances which were demonstrated to have been
proved, sufficiently established the guilt of the accused
and consequently, the conclusion of the trial court in         G
having found the accused guilty, was perfectly justified
and the interference with the same by the High Court
without sufficient reasoning was therefore, liable to be set
aside. [Paras 20 and 37] [678-F; 685-H; 686-A]

    Brahm Swaroop and Anr. vs. State of Uttar Pradesh          H
    666    SUPREME COURT REPORTS             [2013] 10 S.C.R.

A (2011) 6 SCC 288: 2010 (15) SCR 1; Podda Narayana and
  Ors. vs. State of Andhra Pradesh AIR 1975 SC 1252: 1975
  Suppl. SCR 84; Gumam Kaur vs. Bakshish Singh and Ors.
  AIR 1981 SC 631: 1980 Suppl. SCC 567 - referred to.

8       1.2. There is no dispute about the engagement of the
   services of the deceased as a cook to go along with the
   pilgrimage tour organised by the second accused on
   27.03.2002. Therefore, the said circumstance was fully
   established. As far as the second circumstance viz., that
C· the deceased was found in the company of the accused
   when they were travelling together in the jeep taxi is
   concerned, the evidence of P.W.6 was unassailable.
   When once the travel undertaken by the accused along
   with the deceased in the jeep taxi belonging to P.W.6 was
   found to be true, there is no reason to disbelieve the
0
   version of P.W.6, as regards the brutal assault and the
   injuries inflicted upon the deceased at the instance of the
   accused. In the course of the cross examination of P.W.6,
   it was not brought forth as to why he was enemically
E disposed of towards the accused or as to why P.W.6 was
   harbouring any other grudge against the accused in
   order to unnecessarily implicate the accused to the
   alleged assault on the deceased. The vehicle was a jeep,
   therefore, when five of them were sitting together along
   with the deceased in the jeep and when a brutal assault
F was inflicted upon the deceased, there is every possibility
   of P.W.6 noticing the assault inflicted upon the deceased.
   If that be so, his version that the deceased was beaten
   repeatedly and mercilessly below the knees and other
   parts of the body as stated by him, have to be accepted
G in toto, without any scope for contradictiol"!· [Para 24, 25
   and 26) (680-H; 681-A-B, C-G]
      1.3. Once the factum of the assault cannot be
  doubted, the further evidence of P.W.23 viz., the
H postmortem doctor, read along with the postmortem
  SWARN KAUR v. GURMUKH SINGH AND ORS.                667


certificate Ex.P.W.23/A, sufficiently demonstrate the        A
nature of injuries sustained by the deceased viz. the
multiple contusions below the knee, as well as serious
injuries on the head of the deceased. Therefore, the said
circumstance of the accused causing the injury on the
body of the deceased and the ultimate death of the           B
deceased due to the said injury is a circumstance, which
has been proved without any iota of doubt. [Para 27] [681-
H; 682-A-B]

     1.4 The other circumstance viz., that the accused c
themselves reported to the police about the missing of
the accused, the said circumstance has to be necessarily
considered along with the circumstances described' by
P.W.17 and P.W.19, viz., their proceeding to the rivulet
where the dead body was found by P.W.1, which was
                                                             0
reported to the very same police station and that P.W.19
had gone to the said spot for making necessary
enquiries. There is no reason to discard the evidence of
P.W.17, as well as that of P.W.19 simply because they
were official witnesses. The inquest report viz., Ex.P.W.19/ E
A, postmortem report Ex.P.W.23/A, the evidence of P.W.1 ·
and P.W.23, as well as P.W.2, sufficiently establish that
the dead body, which was found at the rivulet was the
body of the deceased. In the said background it will have
to be held that the accused did visit the rivulet and failed
                                                             F
to identify the body of the deceased as stated by P.W.19.
Except mere denial, nothing was brought in evidence to
disbelieve the said view of P.W.19. [Paras 28 and 31) [682-
C-D; 683-C-E]

     1.5. Such a deliberate stand of the accused in not      G
identifying the dead body of the deceased only goes to
show that the accused wanted to suppress the truth, for
reasons best known to them. Therefore, the last of the
circumstances viz., factum of missing of the deceased,
as from 31.03.2002, were proved by the reporting of the      H
    668      SUPREME COURT REPORTS            [2013) 10 S.C.R.

A   same by the accused themselves to the police and also
    to P.W.2 on 01.04.2002. When once the said circumstance
    of the missing of the dee.eased was established beyond
    reasonable doubt, the conduct of the accused in their
    deliberate failure to identify the deceased when his body
B   was shown to them at the rivulet by P.W.19, was a
    serious circumstance, which has to be considered and
    held against the accused. [Para 33] [683-G-H; 684-A-B]

      1.6. The failure of the accused in not having come
C forward with any acceptable explanation- for not taking
  any steps by them to trace the missing of the deceased,
  except stating that they reported ~im missing to the
  police is yet another circumstance creating serious
  doubts about the credibility in their stand. [Para 34) [684-
D C-D]
       1.7. The last of the circumstances viz., the version of
  P.W.2 and P.W.12 that after reporting about the missing
  of the deceased to them by A2 and A3 on 01.04.2002, on
  04.04.2002, they came and reported that the deceased
E was no more and that they were prepared to pay a sum
  of Rs.1,00,000/- by way of compensation, if accepted to
  be true, would be a clinching piece of circumstance, that
  would complete the other chain of circumstances to
  fasten the alleged offence against the accused persons.
F [Para 36) [685-B-D]
       1.8. According to P.W.2, as the incident occurred in
  the State of Himachal Pradesh arid she was living in a
  village in the State of Punjab, it took some time for her to
G arrange for her trip to Himachal Pradesh to lodge the
  complaint and in that process she could go to the Police
  Station only on 14.04.2002, where she identified the
  photographs of the dead body of the deceased along with
  his other belongings. [Para 22) [680-D-E]
H         2. From the nature of injuries found on the person of
   SWARN KAUR v. GURMUKH SINGH AND ORS.                669


the deceased, it cannot safely be said that the accused       A
assaulted the deceased with intention to cause such
injury so as to cause death. The accused persons were
upset by the poor quality of food cooked by the deceased
and, therefore, assaulted him. The nature of injury or the
weapon used do not suggest that the accused assaulted         B
him with the intention of causing death. However, the
accused knew that the injury inflicted by them is likely to
cause death. Hence, the accused shall be liable to be
convicted for offence under Section 304 (Part II) IPC. In
the facts and circumstances of the case, sentence of 7        c
years' rigorous imprisonment each and fine of Rs.50,000/
- each shall meet the ends of justice. Out of the fine
amount, the appellants shall be paid a sum of Rs.2 lakhs.
[Para 39] (686-E-H]
                    Case Law Reference:                       D

    2010 (15) SCR 1             referred to      Para 18
    1975 (0) Suppl. SCR 84      referred to      Para 18
    1980 Suppl. SCC 567         referred to      Para 18
                                                              E
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1624 of 2008.

    From the Judgment & Order dated 18.06.2008 of the High
Court of Himachal Pradesh in Criminal Appeal No. 280 of
2005.                                                         F

   Vineet Dhanda, Puneet Dhanda, J.P. Dhanda, Raj Rani
Dhanda, Amrendra Kumar Singh for the Appellant.

    Neeraj Kumar Jain, Manish Mohan, Aditya Kr. Chaudhary,    G
Dharmendra Kumar Sinha, Sumeet Sharma (for Prashant
Bhushan) for the Respondents.

    The Judgment of the Court was delivered by

    FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. This              H
    670     SUPREME COURT REPORTS               (2013] 10 S.C.R.


A appeal is directed against the judgment of the Division Bench
  of the High Court of Himachal Pradesh, dated 18.06.2008, in
  Crl.A.No.280 of 2005. The de facto complainant is the
  appellant. The respondents 1 to 5 were arrayed as accused 1
  to 5 along with Gurnam Singh and Jagtar Singh, two other
B accused in Sessions Trial No.13/7 of 2001/2002.
       2. The case of the prosecution was that on 30.03.2002, a
  group of pilgrims were led by the second accused to Shah Talai
  for worshiping Baba Balak Nath. The deceased Jeet Singh,
  was taken by the second accused along with the team for the
C purpose of cooking. The pilgrims reached Shah Talai on
  30.03.2002. On reaching Shah Talai and after paying obeisance
  at the temple, the pilgrims stayed at Dana Mandi in Shah Talai.
  The accused party appeared to have been not satisfied with
  the food prepared by Jeet Singh and being annoyed by the said
D factor, it was alleged that the accused beat the deceased Jeet
  Singh, after tying his h~nds with Pama {a piece of cloth used
  both as head-gear and towel by the villagers). The deceased
  was taken towards a khud in a jeep-taxi belonging to P.W.6,
  Milap Chand. The accused stated to have given fist blows and
E kicks to the deceased and on the next day morning the body
  of Jeet Singh was found in the bed of a rivulet known as 'Saryali
  Khud', near Dana Mandi.
       3. Some other pilgrims, not connected with the group led
F by the second accused, after noticing the body of the deceased,
  stated to have brought it out and placed it on the dry portion of
  the rivulet bed and the information was passed on to P.W.1.
  P.W.1 is a village Up-pradhan of Gram Panchayat Naghiar.
  P.W.1 in turn gave the information to the police station Thalai
G on 31.03.2002, at about 10.45 a.m. by telephone informing that
  a dead body of some Punjabi male was lying in the bank of
  Saryali Khud. Based on the said information P.W.19 AS.I.,
  along with other police officials reached the spot and prepared
  the inquest report. In the meantime, A2, A4 and A5 along with
H A7 {acquitted accused) appeared to have proceeded to the
   SWARN KAUR v. GURMUKH SINGH AND ORS.                   671
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Shah Talai police station and reported to P.W.17, M.H.C. about A
the missing of one of their companion. P.W.17 directed the four
of them to go to Saryali Khud and find out whether, the dead
body was that of their missing companion. They went to the
place where the body was found by P.W.19 and after inspecting
the body A2, A4, A5 and A7 told P.W.19 that he was not the B
person who was missing viz., Jeet Singh. P.W.19 after
conducting the inquest, sent the body for post-mortem and the
post-mortem was carried out by P.W.23, Dr. A.K. Sarma.
Exhibit P.W.23/A is the post-mortem report, wherein the post-
mortem doctor has noted two injuries. The injuries were :       C

    "(a) Multiple contusions on both knee and below the
    knee, reddish brownish scab formed, underline bones are
    normal.

    (b) Contusion over the xiphistemum 2 cm x 1 cm reddish        D
    brown scab formed, under lying bone normal. n

     P.W.23 gave the opinion in exhibit P.W.23/A that the cause
of death was the head injury leading to shock.
                                                                  E
     4. Be that as it may, on the early morning of 01.04.2002,
the pilgrims led by the second accused, reached Ferozpur
District of Punjab. The second accused met the appellant and
informed her that her husband had gone missing at the place
of Baba Balak Nath; that three of their team members have         F
stayed back in search of her husband and they are likely to get
the information in the evening by 6.00 p.m.

      5. According to the appellant while no information about
her missing husband was forthcoming from the accused, on
04.04.2002, A2 and A5 again met her, as well as her son G
P.W.12, Angrej Singh and negotiated for a settlement by way
of payment of a sum of Rs.1,00,000/- as .compensation, by
stating that her husband Jeet Singh was no more. Thereafter,
the appellant accompanied by her brother-in-law Ajit Singh and
Gurbanch Singh, stated to have gone to Shah Talai po-liee, H
    672       SUPREME COURT REPORTS                [2013] 10 S.C.R.


A   station on 14.04.2002 and lodged an F.1.R. (Ex.P.W.2/A) at the
    police station. The appellant identified her husband from the
    photo of the dead body shown to her, besides identifying the
    clothes and purse of the deceased. Thereafter, the investigation
    commenced.
B
          6. On 15.04.2002, A2, A6 and A5 were arrested at village
    Baltoha and were remanded to police custody by the Court. On
    17.04.2002, based on the disclosure statement of A2, the
    turban, parna, bag, shirt, blanket and cooking utensils of the
c   deceased, Jeet Singh, were recovered from the house of A2
    at village Baltoha. The first and the third accused were arrested
    on 19.04.2002, and they stated to have identified the place of
    occurrence. A4 and A? were arrested on 06.05.2002, and
    based on the admissible portion of the disclosure statement
o   of A4, a stone which was thrown below the bus stand of
    Deothsidh, was recovered. The prosecution in toto examined
    23 witnesses and in the Section 313 questioning, the accused
    denied the case of the prosecution and no defence evidence
    was let in on behalf of the accused.
E
          7. One relevant statement in the Section 313 questioning
    of A4 when it was put to him that the prosecution evidence
    against him that all the pilgrims except Jeet Singh, returned to
    the native place on 01.04.2002 and what he had to say about
    it, A4 in his answer stated as under:
F
          "It is correct. We all retuned except Jeet Singh, but he
          was missing from Shah Talai and we have lodged report
          with the police at P. S. Talai about missing of Jeet Singh."

G        8. Again in Question No.20, it was put to -44. that in the
    prosecution evidence against him it had come fo light that on
    01.04.2002, at about 9.00 A.M., accu'sed Joginder Singh_@
    Kala, went to the house of Smt.Swarn Kaur and told her that
    her husband Jeet Singh had been missing from Shah Talai and
H   that he had retained three persons in Shah Talai to trace out
   SWARN KAUR v. GURMUKH SINGH AND ORS.                   673
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Jeet Singh and further told Smt.Swarn Kaur that Jeet Singh        A
would return in the evening, A4 answered as follows:

    "We all persons had went to the house of Smt. Swam
    Kaur and told that Jeet Singh was missing from Shah
    Talai and that we told that we have lodged a report about     8
    his missing with the police."

     9. With the above evidence on record and the stand of the
accused, the Trial Court found accused 1 to 5 guilty of the
charges falling under Section 302 r/w Section 34 and Section
201 r/w Section 34 of l.P.C. The Trial Court, however acquitted   C
A6 and A7 of all the charges. Ultimately, after finding accused
1 to 5 guilty of the above charges, the Trial Court imposed the
punishment of imprisonment for life for the offence under
Section 302 r/w Section 34, besides imposing a fine of
Rs.10,000/- each and in default of payment of fine, further       D
sentence of imprisonment for six months each. For the offence
proved under Section 201, all the five accused were sentenced
to rigorous imprisonment for one year, apart from a fine of
Rs.2,000/- each and in default, imprisonment for one month
each. The sentence were directed to run concurrently.             E

     10. All the five accused preferred an appeal before fbe
High Court of Himachal Pradesh in Crl.A.No.280 of 2005 and
the High Court having reversed the judgment of the Sessions
Court and set aside the conviction and sentence imposed on        F
them and there being no further appeal at the instance of the
State, the de facto complainant has come forward with this
appeal.

      11. We heard Mr. Vineet Dhanda, learned counsel for the     G
appellant and Mr. Neeraj Kumar Jain learned senior counsel
for the respondent accused.

     12. The learned counsel for the appellant contended that
the·deceased was taken by the second accused along with the
other accused and the pilgrims for cooking purposes, on           H
    674      SUPREME COURT REPORTS              (2013] 10 S.C.R.


A 27.03.2002 and that on 31.03.2002, the dead body of the
  deceased was seen by P W 1, the village Up-pradhan, who
  preferred a complaint to the police. According to the learned
  counsel, the accused 1 to 5 were last seen along with the
  deceased when they travelled in the jeep-taxi belonging to
B P.W.6; that in the evidence of P.W.6 it has come to light that
  the accused hit the deceased by fist, apart from giving him
  indiscriminating kicks; that his hands were tied with a parna and
  that they got themselves dropped at Saryali Khud, near Dana
  Mandi. The dead body of Jeet Singh was found in the bed of
c the rivulet Saryali Khud and that the accused who stated to have
  reported about the missing of Jeet Singh to Shah Talai Police
  on 31.03.2002, were directed to see the dead body near the
  rivulet, and though the accused went there and saw the dead
  body, for reasons best known to them, did not identify the same,
D though it was the dead body of Jeet Singh.

          13. The learned counsel contended that it has come out
    in evidence that on 01.04.2002, after returning from the
    pilgrimage, A2 and A4 went to the home·of the appellant and
E   informed that the deceased went missing at Shah Talai and that
    a report has been lodged with the police. The learned counsel
    contended that the said fact was admitted by A4 in the Section
    313 questioning and therefore, it was the responsibility of the
    accused to have satisfactorily explained as to how the
    deceased was missing. The learned counsel further contended
F   that though on behalf of the accused it was claimed that they
    preferred a complaint with the police on 31.03.2002, nothing
    was brought on record to show that any serious complaint was
    lodged with the police to tra~ the deceased. Per contra, when
G   they stated to have gone to the police station of Shah Talai on
    31.03.2002, P.W.17 advised them to go and see whether the
    dead body lying at the rivulet was the body of deceased and
    that the accused who had gone there and met P.W.19
    deliberately did not identify the body of the deceased Jeet
H   Singh. The learned counsel submitted that their presence at the
    SWARN KAUR v. GURMUKH SINGH AND ORS.                      675
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
  rivulet for the purpose of identification was duly noted as per     A
 the statements recorded by P.W.19, which were marked as
  Ex.P.W.19/G,H & J. The learned counsel, therefore, contended
 that the chain of circumstances leading to the involvement of
 the accused in the killing of the accused, were duly brought out
. in evidence by the prosecution and that the conviction and          B
 sentence imposed by the learned Sessions Judge was perfectly
 justified. The learned counsel contended that the interference
  with the same by the High Court, therefore, was liable to be set
  aside.
                                                                      c
     14. As against the above submissions, Mr. Neeraj Kumar
Jain learned senior counsel appearing for the respondent
accused, submitted that there were very many missing links in
the chain of circumstances and that if really the accused
persons had gone to the place where the dead body of Jeet             D
Singh was lying as claimed by the prosecution, there was no
reason why the said fact was not recorded in the inquest report
and their signatures were not obtained in that report. According
to the learned senior counsel, at the police station when they
went to report about the missing of Jeet Singh, their signatures      E
were obtained in blank papers, which were fabricated to the
advantage of the prosecution for foisting a false case against
the accused Nos.1 to 5.

      15. The learned senior counsel also contended that there
was long delay in the filing of the F.l.R. and that by itself would   F
vitiate the case of the prosecution. The alleged killing of the
deceased was on 31.03.2002. The appellant lodged the F.l.R.
with Shah Talai Police Station only on 14.04.2002. The learned
senior counsel contended that there was no valid explanation
for the enormous delay in the filing of the complaint by the          G
appellant.

     16. The learned senior counsel by referring to the injuries
noted on the body of the deceased contended that there were
only multiple contusions and if really the deceased was beaten        H
    676         SUPREME COURT REPORTS             [2013) 10 S.C.R.


A   by several persons, there would have been apparent swellin9
    on the body, which was not present and, therefore, the story of
    the prosecution cannot be believed.

         17. The learned senior counsel, therefore, contended that
8   the various circumstances, which were listed out by the High
    Court and the lack of proper evidence to support the said
    circumstances, weighed with the High Court in interfering with.
    the conviction and sentence imposed by the learned Sessions
    Judge and the same does not call for interference.
c       18. The learned counsel appearing for the appellant relied
    upon the decisions in Brahm Swaroop and another vs. State
    of Uttar Pradesh - (2011) 6 SCC 288 and Podda Narayana
    and others vs. State of Andhra Pradesh -AIR 1975 SC 1252,
    as well as Gumam Kaur vs. Bakshish Singh and others - AIR
D   1981 SC 631.

         19. Having heard the learned counsel for the appellant, as
    well as the respondent accused and having perused the
    judgment of the Trial Court, as well as that of the High Court,
E   we find that this was a case based on circumstantial evidence.
    Having noted the facts and the evidence led before the Trial
    Court, the following facts are not in dispute viz.,

          (a)    There was a pilgrimage tour organised at the
                 instance of the second accused, which consisted
F
                 of about 100 pilgrims including other accused viz.,
                 A1, A3, A4 and A5, as well as A6 and A7.

          (b)     The deceased Jeet Singh was taken by the
                 second accused along with the pilgrims for the
G                purpose of cooking.

          (c)    The evidence of P.W.6 was to the effect that the
                 deceased was carried in his jeep taxi bearing
                 Registration No.PB-1 OD-0507 on 31.03.2002 and
                 that his hands were tied with a parna.
H
SWARN KAUR v. GURMUKH SINGH AND ORS.                     677
 [FAKKIR MOHAMED .IBRAHIM KALIFULLA, J.]
 (d)   According to P.W:6, while they were travelling, the      A
       deceased was mercilessly beaten by all the
       accused persons.

 (e)   It is the stand of the respondent ~ccused that the
       deceased was missing on and from 31.03.2002              B
       and that they reported the same to the Shah Talai
       Police Station.

 (f)   While according to P.Ws.17 and 19 when the
       accused persons went and reported to P.W.17
       about the missing of the deceased Jeet Singh, they       c
       were directed to report to P.W.19 to find out whether
       the dead body lying at the rivulet was the body of
       the deceased. According to the accused they were
       not asked to go to the said riverbed for
       identification. On the other hand, it was claimed that   D
       their signatures were obtained in blank papers,
       which was fabricated later on by the prosecution.

 (g)   Admittedly on 01.04.2002; A2 and A4 went to the
       house of the deceased Jeet Singh and informed            E
       the appellant about· the missing of the deceased
       from the pilgrims group.

 (h)   According to P.W.17 and P.W.19 after the
       appellant filed the F.l.R. on 14.04.2002, the
       photograph of the dead body of Jeet Singh was            F
       shown to her, which was duly identified and that she
       also identified the clothes worn by the deceased,
       as well as the purse belonging to the deceased.

 (i)   Aceording to the appellant, after informing her about    G
       the missing of the deceased by A2 and A5, on
       01.04.2002 and subsequently on 04.04.2002, they
       came and informed her that her husband was no
       more and that they were prepared to pay a sum of
       Rs.1,00,000/- by way of compensation and that she
                                                                H
    678          SUPREME COURT REPORTS              (2013) 10 S.C.R.


A                 should not go to the police and that her son P.W.12
                  was also present at that time.

          (j)     The postmortem report Ex.P.W.23/A revealed that
                  there were multiple contusions on the knee and
B                 below the knee of the deceased, apart from
                  contusions in the head of the deceased, which
                  according to the postmortem doctor P.W.23 was
                  fatal to the deceased.

          (k)     The evidences of P.W.1, P.W.2, P.W.6 and P.W.12,
c                 read together discloses that the deceased went
                  along with the accused who were part of the
                  pilgrims group of about 100 persons on 27.03.2002
                  and that while all others returned back on
                  31.03.2002, the deceased alone did not return and
D                 for which there was no valid explanation offered at
                  the instance of the accused, except stating that they
                  made a report at Shah Talai police station about the
                  missing of the deceased.

E      20. By referring to the above factors, when we note the
  circumstances, which were put against the accused by the
  prosecution, we find that the following circumstances have to
  be noted. In our considered opinion, the Hon'ble High Court
  failed to analyze all the circumstances which were existing,
F while only a few of them were noted by the High Court while
  examining the correctness of the judgment of the Trial Court.
  The circumstances which were existing as against the accused
  can be stated as under:

          (i)     At the instance of A2, the deceased Jeet Singh
G                 was engaged as a cook to come along with the
                  pilgrims to Shah Talai to worship Baba Balak Nath
                  on 27.03.2002.

          (ii)    P.W.6 in whose jeep taxi the accused stated to have
                  travelled along with the deceased Jeet Singh, was
SWARN KAUR v. GURMUKH SINGH AND ORS.                       679
 [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
          totally an independent witness, who had no axe to       A
          grind against the accused.

  (iii)   The version of P.W.6, read along with the
          postmortem report Ex.P.W.23/A and oral evidence
          of P.W.23, the postmortem doctor, it has come to
                                                                  B
          light that the deceased Jeet Singh, suffered injuries
          viz., multiple contusions below his knee and also
          severe head injury.

 (iv)     The factum of 'missing of the deceased' Jeet Singh,
          was admittedly said to have been reported by the        c
          accused themselves, first to the police station at
          Shah Talai and then on 01.04.2002, to the
          appellant.
, (v)     There was no document produced on behalf of the         D
          accused to show that any earnest effort was taken
          by the accused to trace the deceased after he was
          reported to be missing from 31.03.2002. According
          to P.W.17 and P.W.19, the accused were advised
          to go and see a dead body lying at the rivulet bank
                                                                  E
          and that after checking the body in the presence of
          P. W .1 find P. W .19, the accused stated that the
          said dead body was not that of the deceased.

 (vi)     As far as the identification of the dead body of the
          deceased, the same was established by the               F
          identification made by P.W.2, the appellant, by
          looking to the photograph of the deceased and also
          the clothes worn by him, as well as the purse
          belonged to the deceased. The said statement of
          the appellant as regards the identification based on    G
          the photographs shown to her, as well as the
          belongings of the deceased was not disputed at the
          instance of the accused.

 (vii) The recovery of the stone at the instance of A4,
                                                                  H
    680      SUPREME COURT REPORTS                (2013] 10 S.C.R.


A               which was alleged to have been used in the offence
                was also duly established.

       21.Keeping the above circumstances in mind, when we
  test the submissions made on behalf of the appellant, as well
  as that of the respondent accused in so far as the
8
  circumstances are concerned, it has come in evidence through
  P.W.2 and P.W.12 that A2. and A4 informed the appellant after
  01.04.2002 i.e., on 04.04.2002 that the deceased was reported
  to be missing earlier and was stated to be dead and according
C to P.W.2 and P.W.12 the said accused offered to pay a sum
  of Rs.1,00,000/- by way of compensation, so that the appellant
  did not report the matter to the police.

       22. According to P.W.2, as the incident occurred in the
  State of Himachal Pradesh and she was living in a village in
D the State of Punjab, it took some time for her to arrange for
  her trip to Himachal Pradesh to lodge the complaint and in that
  process she could go to the Police Station at Shah Talai only
  on 14.04.2002, where she identified the photographs of the
  dead body of the deceased along with his other belongings.
E
         23. According to P.W.19, based on Exhibits P.W.19/G, J
    and I, the statements of the accused that the dead body found
    in the rivulet was not that of the deceased Jeet Singh. When
    P .W.19 was confronted as to why the statement of the accused
F   about the identification of the dead body was not noted in the
    inquest report, P.W.19 came forward wit11 an answer that since
    the accused made it clear that the dead body was not that of
    the deceased Jeet Singh, he felt that there was no necessity
    to make a note of it in the inquest report.
G
        24. Keeping the above circumstances which exist in the
    case on hand, when we consider the submissions of the learned
    counsel, as far as the first circumstance is concerned, there is
    no dispute about the engagement of the services of the
    deceased Jeet Singh as a cook to go along with the pilgrimage
H
   SWARN KAUR v. GURMUKH SINGH AND ORS.                     681
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
tour organised by the second accused on 27 .03.2002.                A
Therefore, the said circumstance was fully established.

    25, As far as the second circumstance viz., that the
deceased Jeet Singh was found in the company of the accused
when they were travelling together in the jeep taxi bearing         B
Reg.No.PB-10D-0507 is concerned, the evidence of P.W.6
was unassailable. It has been found by the Trial Court that the
evidence of P W.6 was categoric in that respect and that
nothing contra was elicited from him to take a different view.

     26. When once that factum of the travel ~f the deceased        C
along with the accused is found to be true, then the next
circumstance to be examined is the alleged violent assault
made by the accused on the body of the deceased as stated
by P.W.6, when they were travelling together in his jeep taxi.      D
When once the travel undertaken by the accused along with the
deceased in the jeep taxi belonging to P.W.6 was found to be
true, the point for consideration is as to why the version of
P.W.6, as regards the brutal assault and the injuries inflicted
upon the deceased at the instance of the accused, should not
be believed. In the course of the cross examination of P.W.6,       E
it was not brought forth as to why he was anemically disposed
of towards them or as to why the P.W.6 was harbouring any
other grudge against the accused in order to unnecessarily
implicate the accused to the alleged assault on the deceased.
The vehicle was a jeep, therefore, when five of them were sitting   F
together along with the deceased in the jeep and when a brutal
assault was inflicted upon the deceased, there is every
possibility of P.W.6 noticing the assault inflicted upon the
deceased. If that be so, his version that the deceased was
beaten repeatedly and mercilessly below the knees and other         G
parts of the body as stated by him, have to be accepted in toto,
without any scope for contradiction.

    27. When once the said factum of the assault cannot be
doubted, the further evidence of P.W.23 viz., the postmortem        H
    682       SUPREME COURT REPORTS                [2013] 10 S.C.R.


A doctor, read along with the postmortem certificate Ex.P.W.23/
  A, sufficiently demonstrate the nature of injuries sustained by
  the deceased viz. the multiple contusions below the knee, as
  well as serious injuries on the head of the deceased. Therefore,
  the said circumstance of the accused causing the injury on the
B body of the deceased and the ultimate death of the deceased
  due to the said injury is a circumstance, which has been proved
  without any iota of doubt.

          28. When we come to the other circumstance viz., that the
c accused themselves reported to the Shah Talai police about
    the missing of the accused, the said circumstance has to be
    necessarily considered along with the following circumstances
    described by P.W.17 and P.W.19, viz., their proceeding to the
    rivulet where the dead body was found by P.W.1, which was
0   reported to the very same police station and that P.W.19 had
    gone to the said spot for making necessary enquiries.

        29. The question for consideration is whether the accused
  had gone to report the incident to the police and what were the
  subsequent events after the said reporting. In this context, the
E evidence of P. W.17, to some extent support the version of the
  accused about their reporting to the police about the missing
  of the deceased on 31.03.2002. Though the accused took the
  stand that after reporting at Shah Talai police station, they did
  not go to the rivulet as claimed by the prosecution, according
F to the prosecution, P.W.17 directed them to go to the rivulet
  and find out as to whether or not the dead body lying there was
  the dead body of the deceased. In so far as the report of the
  missing of the deceased is concerned, since there were no two
  contradicting views, we do not wish to dilate further on that issue.
G
        30. When we examined the disputed question about the
  visiting of the accused to the place viz., the rivulet where the
  dead body was found, the prosecution relied upon the evidence
  of P.W.17 and P.W.19 and the statements of the accused in
H Ex.P.W.19/G,J and K.
    SWARN KAUR v. GURMUKH SINGH AND ORS.                        683
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
     31. On behalf of the accused, it was contended that their          A
signatures were obtained in blank papers, which were
subsequently fabricated by the police to suit their convenience.
As far as the said statement is concerned, except the ipse dixit
there was no other evidence to support the said stand. It is
quite possible that when the accused reported to the police             B
station about the missing of the deceased, as the S.H.O.,
P.W.17 would have·directed them to go to the spot where the
dead body was reported to be lying in order to ensure whether
the said body either belonged to the deceased or not. There
is no reason to discard the evidence of P.W.17, as well as that         c
of P.W.19 on that score, simply because they were official
witnesses. The inquest report viz., Ex.P.W.19/A, postmortem
report Ex.P.W.23/A, the evidence of P.W.1 and P.W.23, as well
as P.W.2, sufficiently establish that the dead body, which was
found at the rivulet was the body of the deceased Jeet Singh.           o
In the said background it will have to be held that the accused
did visit the rivulet and failed to identify the body of the deceased
as stated by P.W.19. Except mere denial, nothing was brought
in evidence to disbelieve the said view of P.W.19.
                                                                        E
     32. In such circumstances, it is not known as to why the
accused should have merely stated that the body was not that
of the deceased Jeet Singh. The statements in Ex.P.W.19/G,
J and K were rightly relied upon by the Trial Court to affirm the
position that the accused came forward with the stand that the
                                                                        F
body found on the rivulet was not that of the deceased.

      33. Therefore, a conspectus consideration of all the above
proved facts, only disclosed that the accused deliberately failed
to identify the body of the deceased,. when the same was
shown to them at the spot by P.W.19, pursuant to the direction          G
of P.W.17. Such a deliberate stand of the accused in not
identifying the dead body of the deceased only goes to show
that the accused wanted to suppress the truth, for reasons best
known to them. Therefore, the last of the above circumstances
viz., factum of missing of the deceased Jeet Singh, as from             H
    684     SUPREME COURT REPORTS                [2013] 10 S.C.R. .


A 31.03.2002, were proved by the reporting of the same by the
  accused themselves to the police and also to P.W.2 on
  01.04.2002. When once the said circumstance of the missing
  of the deceased Jeet Singh was established beyond
  reasonable doubt, the conduct of the accused in their deliberate
B failure to identify the deceased Jeet Singh, when his body was
  shown to them at the rivulet by P.W.19, was a serious
  circumstance, which has to be considered and held against the
  accused.

C       34. With that when we come to the next question as to the
  failure of the accused in not having come forward with any
  acceptable explanation for not taking any steps by them to trace
  the missing of the deceased, except stating that they reported
  him missing to the police is yet another circumstance creating
  serious doubts about the credibility in their stand. When
0
  admittedly, the deceased was engaged at the instance of A2.
  for the purpose of cooking food for the pilgrims and
  subsequently he was found missing when the tour programme
  was on going, we fail to understand as to how by taking a mere
E stand that such missing of the person was simply reported to
  the police without any further action taken in that respect is one
  other circumstance to be considered against the accused.
  When the deceased was engaged and was taken along with
  the pilgrims, which was led by the second accused, it was th~
F responsibility of the second accused to have shown what were
  the earnest efforts taken by him to trace the whereabouts of the
  deceased. Unfortunately, except the mere statement that along
  with A3 and A4, he went to Shah Talai police station and
  reported about the missing of the deceased, nothing else was
  shown as to what were the further steps taken by him to trace
G the deceased. Further, the evidence of P.W.2 that the accused
  offered to compensate the missing of the deceased was yet
  another circumstance to be taken into account while
  considering the guilt of the accused.

H
   SWARN KAUR v. GURMUKH SINGH AND ORS.                     685
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
     35. Therefore, the said conduct of the accused would only      A
go to show that the said circumstance is also one other relevant
circumstance, which has to be considered along with the other
circumstances, which were all found proved and adverse
against the accused.
                                                                    8
      36. With that when we come to the last of the circumstance
viz., the version of P.W.2 and P.W.12 that after reporting about
the missing of the deceased to them by A2 and A3 on
01.04.2002, on 04.04.2002, they came and reported that the
deceased was no more and that they were prepared to pay a           C
sum of Rs.1,00,000/- by way of compensation, was last of the
circumstance which if accepted to be true would be a clinching
piece of circumstance, that would complete the other chain of
circumstances to fasten the alleged offence against the
accused persons. The Trial Court which had the advantage of         D
watching the demonour of P.W.2 and P.W.12, has noted that
no serious answer was elicited from the mouth of the said
witnesses, as regards the alleged offer of compensation made
by A2 and A4. There is no valid reason to interfere with the said
conclusion of the Trial Court in the absence of any other legally   E
acceptable counter evidence to doubt the version of P.W.2 and
P.W.12. Therefore, if A2 and A4, had made an attempt and
offered the compensation of Rs.1,00,000/- after informing
P.W.2 about the death of the deceased, the only conclusion
which could be drawn based on the other chain of
circumstances, which we have found to have been established         F
without any scope of contradiction, was the culpability of the
accused in having eliminated the deceased by inflicting the
injuries upon him, as narrated by P.W.6 and as found to have
existed by the expert witness viz., the postmortem doctor           G
P.W.23 in Ex.P.W.23/A.

    37. We are convinced that every one of the circumstances
which were demonstrated to have been proved, sufficiently
established the guilt of the accused and consequently, the
conclusion of the Trial Court in having found the accused guilty    H
    686      SUPREME COURT REPORTS                  [2013] 10 S.C.R.


A   was perfectly justified and the interference with the same by the
    High Court without sufficient reasoning was therefore, liable to
    be set aside.

          38. Now, we address as to the nature of the offence
8   committed by the accused. PW-23, Dr. A.K. Sharma, who
    conducted the post-mortem examination, has found the cause
    of death to be the head injury. But, the question is whether that
    itself would be sufficient to hold the accused guilty of the offence
    under Section 302 of the Indian Penal Code. The injuries found
C   on the person of the deceased, as quoted in the preceding
    paragraph of the judgment, shows presence of only a small
    contusion of the size of 2 cm x 1 cm on the xiphisternum and
    the underlying bone was also found to be normal.

          39. It is well settled that intention is always lodged in the
D   mind of the accused but, to gather the intention one of the
    relevant factors which the court looks into is the nature of injury
    inflicted on the deceased. In our opinion, from the nature of
    injuries found on the person of the deceased it cannot safely
    be said that the accused assaulted the deceased with intention
E   to cause such injury so as to cause death. It appears to us that
    the accused persons were upset by the poor quality of food
    cooked by the deceased and, therefore, assaulted him. The
    nature of injury or the weapon used do not suggest that the
    accused assaulted him with the intention of causing death.
F   However, we are of the opinion that the accused knew that the
    injury inflicted by them is likely to cause death. Hence, in our
    opinion, the accused shall be liable to be convicted for offence
    under Section 304 Part II of the Indian Penal Code. In the facts
    and circumstances of the case, we are of the opinion that
G   sentence of 7 years' rigorous imprisonment each and fine of
    Rs.50,000/- each shall meet the ends of justice. Each of the
    accused shall deposit the fine amount within three months
    failing which they shall suffer imprisonment for a further period
    of one year. Out of the fine amount the appellants shall be paid
H   a sum of Rs.2 lakhs.
   SWARN KAUR v. GURMUKH SINGH AND ORS.                   687
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
    40. The said accused 1 to 5 are directed to surrender        A
forthwith before the Additional Sessions Judge, Ghumarwin,
District Bilaspur, Himachal Pradesh, who shall hand them over
to the concerned police for serving the remaining sentence. In
the result, the appeal is allowed, the judgment and order of
acquittal passed by the High Court is set aside and the          B
accused are convicted and sentenced in the manner indicated
above.

K.K.T.                                       Appeal allowed.