TMI Blog2012 (5) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... . Agarwalla and Ors.[ 2005 (5) TMI 324 - SUPREME COURT] . It is a case where the ocular evidence of PW11 is corroborated by medical evidence and is also partially supported by the statement of PW10, the husband of the deceased. Thus, in our considered view, the statements of PW10 and PW11 cannot be said to be doubtful or which cannot be believed by the Court. Their presence at the place of occurrence was natural and what they have stated is not only plausible but completes the chain of events in the case of the prosecution. The accused in the present appeal had also taken the plea of alibi in addition to the defence that they were living in a village far away from the place of occurrence. This plea of alibi was found to be without any substance by the Trial Court and was further concurrently found to be without any merit by the High Court also. In order to establish the plea of alibi these accused had examined various witnesses. Some documents had also been adduced to show that the accused Pawan Kumar and Sunil Kumar had gone to New Subzi Mandi near the booth of DW-1 and they had taken mushroom for sale and had paid the charges to the market committee, etc. Referring to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants. We do not intend to dwell on this issue any further. We also do not propose to rely upon the dismissal of the SLP filed by Pawan Kumar since we have come to an independent conclusion on merits that the prosecution in the present case has been able to bring home the guilt of the Appellants-accused and the judgment of the High Court under appeal does not call for any interference. Thus, both the above appeals are dismissed. - Hon'ble Judges A.K. Patnaik and Swatanter Kumar Judge, JJ. For the Appellant : Sanjay Jain For the Respondent : Kamal Mohan Gupta JUDGMENT 1. The Trial Court, vide its 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 (Indian Penal Code). The Trial Court further held that except Jitender, remaining four accused were also guilty of the offence under Section 302 read with Section 34 Indian Penal Code. The Trial Court acquitted all the four accused for the offence under Section 323 read with Sections 34 and 342 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal Appeal No. 1092 of 2009. Surender has not challenged the judgment of the High Court. 4. At this stage itself, we may notice that accused Pawan 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 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 Ishwar 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 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. Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks 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 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 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 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. Similarly, Jitender was taken into custody ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or an offence under Section 302 Indian Penal Code. vi) Jitender has not been convicted independently for an offence under Section 302/34 Indian Penal Code as recorded by the learned Trial Court. Consequently, he could not have been held guilty of the same offence with the aid of Section 120B Indian Penal Code. 11. As already noticed, the FIR (Ext. P2) had been registered by ASI Hans Raj, PW-13 on the statement of Ishwar Singh, PW-11. It is correct that the name of accused Jitender, son of Sajjan Singh, was not mentioned by PW-11 in the FIR 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 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. 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 witness, he was forced by Jitender to drive the motorcycle back to the fields. Further, Jitender is stated to have been a party to illegally confining PW-10 after the commission of the crime. Moreover, in the cross-examination of this witness, not even a suggestion was put to him that 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 protest was raised by Indra have clearly been stated therein. 13. We must also notice that the fact that PW11 did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t brother of the deceased having come to know of the incident came to the place of occurrence and having seen only a part of the incident informed the police. Therefore, in that process, if he failed to mention the name of the Appellant, it was not a circumstance which would be sufficient to discard the evidence of such witness and non-mentioning of the name of the accused would not be a material lapse. 16. The Learned Counsel appearing for these accused/appellant while relying upon the judgment of this Court in the case of Aloke Nath Dutta and Ors. v. State of West Bengal [(2007) 12 SCC 230] , argued that the confessions in the present case have not been recorded in the manner contemplated by law and the confession cannot be taken on record where it incorporates both admissible and inadmissible parts thereof together. 17. In the disclosure statement of accused Jitender, Ext. P43, it has been recorded, after conspiring for murdering Indra, wife of Sunder, we had used Hero Honda Motor Cycle bearing registration No. CHI/2088 of Satish in that murder, for going and coming. I have kept that motor cycle now in the shop of Sat Pal Mistry, r/o Jind. After pointing out, I can get t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W-10 to the fields is fully corroborated. The recovery of motorcycle, Exhibit P44, is a fact which provides a link between recovery of motorcycle and its use by the accused in commission of the crime. This fact is also proved by the statement of PW10. This statement of the accused has not been treated as a confession of the accused by the courts and rightly so because, it could not have been treated as a confession of the accused, firstly, because it was made to the police and secondly, such a statement would not be admissible in terms of Section 27 of the Evidence Act. 22. We shall shortly proceed to discuss the argument of the Learned Counsel for the Appellant that there was unexplained and inordinate delay in lodging the FIR and the courts have failed to appreciate the evidence in this prospective, when we deal with the appeal of Satish, Sunil and the other two co-accused. 23. Coming to the last argument on behalf of accused Jitender that he had been acquitted by the trial court for an offence under Section 302 read with Section 120B Indian Penal Code, this argument is again devoid of any merit. The accused Jitender was charged with an offence punishable under Section 120B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the accused would be entitled to the benefit of doubt. This question, in fact, arises in both these appeals, and therefore, can conveniently be dealt with at this stage. 27. The FIR Ext. P-2 was recorded at 4.40 p.m. on 10th February, 1999, in which the time of occurrence was recorded as 1.00 to 1.30 a.m. of the same date. This FIR had been registered on the basis of the statement of Ishwar Singh, PW-11 who, as already noticed, was the eye-witness to the occurrence. He clearly stated in his statement that after having the dinner, Indra along with her child had gone to chobara to sleep and all of them were sleeping on the ground floor. At about 1.00 or 1.30 a.m., he heard voices from the chobara. He went upstairs and saw that the accused Ratti Ram and Pawan Kumar had caught hold of the deceased Indra and the accused Satish and Sunil were strangulating her with the help of a rope. Despite her struggle, she was not able to free herself from the grip of the accused persons and when he tried to intervene, he was also threatened with dire consequences. As a result, he went away to his village Bhartana to inform his family members about the incident. At that time, PW-11 was not aware ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, delay in lodging the FIR can be one of the factors which corrode the credibility of the prosecution version. Delay in lodging the FIR cannot be a ground by itself for throwing away the entire prosecution case. The Court has to seek an explanation for delay and check the truthfulness of the version put forward. If the Court is satisfied, then the case of the prosecution cannot fail on this ground alone. [Ref. Yakub Ismailbhai Patel v. State of Gujarat [(2004) 12 SCC 229], State of Rajasthan v. Shubh Shanti Services Ltd. V. Manjula S. Agarwalla and Ors. [(2000) 5 SCC 30] . 31. Now, we shall deal with the other aspect of the argument advanced on behalf of the Appellants, i.e. in relation to uncertainty in the time of occurrence as well as death of the deceased, with reference to expert evidence. The contention is that as per the statement of PW-10 and PW-11, they all had their dinner together whereafter, PW-10 had gone to the fields for irrigating the fields and Ors. had slept at the ground floor, except Indra and her child, who had gone to chobara to sleep. The occurrence is stated to have taken place between 1.00 to 1.30 a.m. However, according to the medical evidence, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was stating incorrectly or that it was not possible to reconcile the statement of PW-3 i.e. the expert evidence, with the version of the prosecution. Once, this statement of PW-3 remained unchallenged and there exist other prosecution evidence to support the said version, the Court would not be inclined to treat it as a significant doubt in the case of the prosecution. 36. According to PW-11, he had gone to the house of his sister Indra, at about 7 p.m. and had found the accused present there. This time given by the witness also indicates that all the accused as well as the informant had their dinner after 8 p.m. or so. The time of death given by PW-3, thus, cannot be falsified only on the ground of an argument that there was some undigested food found in the stomach of the deceased. 37. Further, it is contended on behalf of the accused that the time of death of the deceased cannot be stated with certainty with reference to the evidence on record and this being a very important factor, would lead to the acquittal of the accused. Reliance in this regard has been placed upon the judgment of this Court in the case of Shambhoo Missir Anr, v. State of Bihar [(1990) 4 SCC 17] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriately dealt with in the Textbook of Gastroenterology, Volume One, by Tadataka Yamada, David H. Alpers, Chung Owyang, Don W. Powell and Fred E. Silverstein, as follows: Gastric Emptying of Indigestible Solids The final class of consumed components of a meal to be discussed are the indigestible solids, that nonnutritive fibrous debris remaining from a meal that is not emptied with the dispersible, calorie-containing digestible solids. In general, indigestible solids exist the stomach with initiation of the gastric phase III activity of the MMC after completion of the fed motor pattern. The main characteristic that distinguishes the phase III motor pattern from fed motor activity is the presence of an open pylorus during fasting, which permits intestinal delivery of large particles. The major factor in determining when an indigestible solid is emptied from the stomach is its size. Indigestible spheres smaller than 1 mm in diameter freely pass into the intestine during the fed period, often at rates faster than solid nutritive food. Larger spheres pass more slowly, usually after an initial lag period, with spheres up to 2.4 mm in diameter passing with the calorie-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the prosecution and to determine the time of death with reference to the stomach contents of the deceased. 43. While discussing various judgments of this Court, Modi in the aforesaid book at page 543 has recorded as under:.. The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of the occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when the deceased had his last meal and what that meal consisted of [Masjit Tato Rawool v. State of Maharashtra, (1971) SCC (Cr.) 732; Gopal Singh v. State of Uttar Pradesh AIR 1979 SC 1932; Sheo Darshan v. State of Uttar Pradesh, (1972) SCC (Cr) 394]. The presence of faecal matter in the intestines is not conclusive, as the deceased might be suffering from constipation. Where there is positive direct evidence about the time of occurrence, it is not open to the court to speculate about the time of occurrence by the presence of faecal matter in the intestines [Sheo Darshan v. State of Uttar Pradesh (1972) SCC (Cr.) 394] . The question of time of death of the victim should not be decided only by taking i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ath solely with reference to the stomach contents is not a very certain and determinative factor. It is one of the relevant considerations. The medical evidence has to be examined in light of the entire evidence produced by the parties. It is certainly a relevant factor and can be used as a significant tool by the Court for coming to the conclusion as to the time of death of the deceased but other factors and circumstances cannot be ignored. The Court should examine the collective or cumulative effect of the prosecution evidence along with the medical evidence to arrive at the correct conclusion. There is no evidence in the present case which establishes, with exactitude, the time at which the accused, the deceased and the eye-witness (PW11) had their dinner. The only evidence is that they had dinner and after having dinner they had gone to sleep. This necessarily would apply that they had dinner late and not in the early hours of the evening. As already noticed, according to PW11, he had come to his sister's house at about 7.00 p.m., whereafter all the events occurred. The evidence of PW3 also remained unchallenged that the death of Indra had taken place between 1.00 a.m. to 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal confinement of Jitender and the other accused. It was PW10's own 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 properties which Ratti Ram had given to the Appellants herein, Satish and Sunil. 50. The statement of PW11 also finds corroboration from the medical evidence. PW3, Dr. L.L. Bundela, has stated that besides ligature marks on her neck, the face of the deceased was swollen and congested. Six other injuries were found on the body of the deceased. There were abrasions on elbow and wrist of the deceased. She had also suffered abrasion injury on her left eyebrow and on dissection, infiltration of blood was found present in the subcutaneous tissues. The post mortem report, Ex.P4 to P5, 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. This medical evidence fully corroborates what had been testified by PW11. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the house which was the home of their relatives. {Ref. Shaikh Sattar v. State of Maharashtra [(2010) 8 SCC 430 ]}. 52. It has been correctly contended on behalf of the Appellants while relying upon the judgment of this Court in the case of S.P. Bhatnagar v. State of Maharashtra [(1979) 1 SCC 535] , that statement of the co-accused recorded under Section 313 Cr.PC cannot be used against the other co-accused. Ratti Ram, in his statement under Section 313 Code of Criminal Procedure, 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 Satish and Sunder and that Indra had objected to it. He also admitted that the door was opened by Indra on the asking of Surender, whom Jitender had brought on motor cycle from the fields. However, he denied having committed the murder of Indra. 53. The proposition of law advanced by the counsel for the Appellants cannot be disputed. The fact of the matter remains that statement of Ratti Ram under Section 313 Code of Criminal Procedure is part of the judicial record and could be used against Ratti Ram for convicting ..... 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