# JITENDER KUMAR v. STATE OF HARYANA

- **Citation:** [2012] 4 S.C.R. 408
- **Court:** Supreme Court of India
- **Decided:** 2012-05-08
- **Case number:** Criminal Appeal No. 1763 of 2008
- **Bench:** A.K. Patnaik, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jitender-kumar-v-state-of-haryana-28407
- **Pages:** 40

## Headnote

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:
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
F
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
8
statements of other witnesses can be relied upon by the
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 wi

## Text

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A
B
[2012] 4 S.C.R. 408
JITENDER KUMAR
v.
STATE OF HARYANA
(Criminal Appeal No. 1763 of 2008)
MAY 8, 2012
[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:
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
F
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
8
statements of other witnesses can be relied upon by the
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.
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
B
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.
1.2. In the instant case, a definite role has been
attributed to accused 'JK' by PW-10. Further, it was on
E
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 crossexamination 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. PW11 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 PW11. 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
D
this ground alone. [para 30] [435-E-G]
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 PW1 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-~
4.1. Judging the time of death from the contents of
the stomach, may not always be the determinative test.
G
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
D
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.
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]
Shambhoo Missir & Anr. v. State of Bihar (1990) 4 SCC
17 - distinguished
D
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
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
F
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-DH]
c
Shaikh Sattar v. State of Maharashtra 2010 (10)
SCR 503 = (2010) 8 SCC 430 - relied on
Rupchand Chindu Kathewar v. State of Maharashtra
(2009) 17 sec 37 - held inapplicable.
S.P. Bhatnagar v. State of Maharashtra 1979 (2)
scR 875 = (1979) 1 sec 535
D
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
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
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 PWE
F
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
2000 (2) SCR 818
relied on
para 30
1990 (4) sec 11
distinguished
para 37
1994 (6) Suppl. SCR 171
referred to
para 45
(1994) sec (Cr.) 1745
relied on
para 46
2009 (17) sec 37
held inapplicable para 48
2010 (10) SCR503
relied on
para 51
1979 (2) SCR 875
para 52
(1976) 1 sec 150
held inapplicable para 54
2011 SCR 1037
relied on
para 55
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.
A
B
c
D
930-DB of 2003.
E
WITH
Crl. Appeal No. 1092 of 2009.
Sushil Kumar, Sanjay Jain, Aditya Kumar for the Appellant.
Kamal Mol't3n Gupta, Gaurav Teotia, Sanjeev Kumar for
the Respondent.
The Judgment of the Court was delivered by
F
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 120B 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
c
)
"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
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 1208 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
0 household articles to their house. This further annoyed Sunil,
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
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
F
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
8
referred to different evidence, we consider it appropriate to deal
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 :
D
E
(i)
He has not been named in the FIR (Exhibit P2),
which fact itself shows that he has been falsely
implicated in the crime.
(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
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
[SWATANTER KUMAR, J.]
427
(vi)
Section 302 IPC.
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
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,
A
B
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
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.
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
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
D
E
F
G
an accused by the prosecution. The informant might not have
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)
0 4 sec 336).
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.