Jitender Kumar
Jitender Kumar
Versus
WITH
Versus
JUDGMENT
Swatanter Kumar, J.
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Penal Code, 1860 (IPC). The Trial Court further held that except
under Section 302 read with Section 34 IPC. The Trial Court
acquitted all the four accused for the offence under Section 323
follows:
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taking appropriate action against him in
view of the observations made by me in this
judgment.”
Court dated 30th May, 2008 wherein the High Court upheld the
appeals have been filed before this Court, one by Jitender Kumar
Court.
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4. At this stage itself, we may notice that accused Pawan
had eight children, two sons and six daughters. The youngest of
having a son aged about two years from this marriage. Mother-
in-law of Indra had died even before the marriage of Indra with
own children. Ratti Ram had obtained a loan on his own land
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and purchased a tractor for the children of his sister-in-law. Due
Jamni and Pawan 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
by his family members, Ratti Ram, along with his son, had come
Sunil were not brought back by Ratti Ram to his own house.
Indra had protested against Ratti Ram not bringing the cattle and
Satish, etc.
the house of his sister Indra. Satish, Sunil and Pawan had also
Ram on that day. At night, after taking meals, all these guests
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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
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 herself from their grip.
When PW11 tried to intervene and get Indra freed, they gave a
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
of Indra and found her lying dead on the ground floor. There
were marks of injuries on her neck and body. She had been
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collected pieces of bangles, which were lying in the chobara of
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
disclosure statement to the effect that the rope used in the crime
Ratti Ram. Upon his disclosure statement, the said rope was
(CrPC) charging all the five accused persons for the offences
under Sections 302, 342, 506, 120-B and 34 IPC in the Court of
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the Magistrate who committed the case to the Court of Sessions.
they were convicted by the Trial Court and their conviction has
i) He has not been named in the FIR (Exhibit P2), which fact
crime.
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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
iii) The learned Trial Court as well as the High Court have
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held guilty of the same offence with the aid of Section 120B
IPC.
11. As already noticed, the FIR (Ext. P2) had been registered by
An accused who has not been named in the FIR, but to whom a
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required to examine such challenges in light of the settled
first possible opportunity. The Court shall also examine the role
the accused owing to such omission in the FIR. The Court has
also to consider the fact that the main purpose of the FIR is to
with law. The primary object is to set the criminal law into
with unmistakable precision in the FIR. The FIR itself is not the
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situation. Reference in this regard can be made to State of U.P.
Vs. Krishna Master and Ors. [(2010) 12 SCC 324] and Ranjit
Singh and Ors. Vs. State of Madhya Pradesh [(2011) 4 SCC 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
disclosure statement that the motor cycle, Ext. P44, has been
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 to open the door which she did as earlier she had bolted
the shutters from inside. After the door was opened, Ratti Ram,
After handing over the rope, Jitender declared that he would take
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solve all problems in the future. According to this witness, he
put to him that Jitender was not present and/or had not
13. We must also notice that the fact that PW11 did not name
to bring PW-10 forcibly and under threat to his house and after
getting the door opened by Indra and handing over the rope to
the other accused, Jitender had taken PW-10 back to the fields.
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When PW-11 came to the Chobara and noticed the other accused
persons killing Indra, Jitender had already left along with PW-10
not name Jitender in the FIR as one of the persons present in the
Jitender was also known and related to him. This accused was
inflicting injury and illegal confinement, but the Trial Court did
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particularly by PW-10 and PW-11, is also corroborated by other
15 SCC 760], the Court was concerned with an argument that the
while relying upon the judgment of this Court in the case of Aloke
Nath Dutta & Ors. V. State of West Bengal [(2007) 12 SCC 230],
argued that the confessions in the present case have not been
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17. In the disclosure statement of accused Jitender, Ext. P43, it
and coming. I have kept that motor cycle now in the shop of Sat
Pal Mistry, r/o Jind. After pointing out, I can get the same
and signed.
need not detain us any further as the law in this regard has been
Dutta (supra) relied upon by the counsel for the appellant, this
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leading to the recovery of the dead body
and/or recovery of the articles of Biswanath;
the purported confession proceeded to state
even the mode and manner in which
Biswanath was allegedly killed. It should
not have been done. It may influence the
mind of the court.”
SCC 657], this Court clearly stated the principle, “it is fallacious
the object produced; the fact discovered embraces the place from
which it is discovered.”
21. Neither the trial Court nor the High Court has relied upon
Ext. P43 for the purpose of holding the accused guilty of the
for the appellant which would vitiate the very recovery of the
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1872 (hereafter the “Evidence Act”). The fact that motorcycle
was used by the accused Jitender for the purpose of bringing PW-
10 from the fields to his residence and after getting the door
opened by Indra, was again used for dropping PW-10 to the fields
the courts and rightly so because, it could not have been treated
learned counsel for the appellant that there was unexplained and
inordinate delay in lodging the FIR and the courts have failed to
that he had been acquitted by the trial court for an offence under
Section 302 read with Section 120B IPC, this argument is again
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devoid of any merit. The accused Jitender was charged with an
offence punishable under Section 120B IPC for he and other co-
under Section 302 read with Section 34 IPC had been framed
under Section 302 read with Section 34 IPC and if he was also
of the trial Court. But, equally true is that the trial Court, for
IPC and, thus, for an offence under Section 302 IPC as well.
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term of two years or upwards, shall, where no express provision
for the offence for which such conspiracy was hatched. Thus, we
the police station was quite near to the place of occurrence and
the expert medical evidence and on this count itself, the accused
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arises in both these appeals, and therefore, can conveniently be
27. The FIR Ext. P-2 was recorded at 4.40 p.m. on 10th
1.00 to 1.30 a.m. of the same date. This FIR had been registered
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
he heard voices from the chobara. He went upstairs and saw that
the accused Ratti Ram and Pawan Kumar had caught hold of the
she was not able to free herself from the grip of the accused
that time, PW-11 was not aware of the fact that Indra had already
along with Mange Ram, Rajender, Jagdish and Sultan Singh, all
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resident of village Bhartana, that they all saw the deceased Indra
lying dead. That is how they came to know that Indra had been
that Ishwar Singh, PW11) went to the Police Station to report the
incident and met ASI Hans Raj near Aasan Chowk, Narnaund
150 metres, from the police station. This piece of evidence does
the crime. PW11, lodged the FIR and PW10 corroborated the
version given in the FIR about the murder of his wife. He claimed
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PW-10 and PW-11 is somewhat strange, but their statements
29. PW-11 could have gone to the police station straight away,
village and brought his relations and friends to see if the matter
delay in lodging the FIR may not prove fatal in all cases, but in
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version put forward. If the Court is satisfied, then the case of the
31. Now, we shall deal with the other aspect of the argument
that as per the statement of PW-10 and PW-11, they all had their
irrigating the fields and others had slept at the ground floor,
except Indra and her child, who had gone to chobara to sleep.
alleged, between 1.00 to 1.30 a.m. as by that time more than four
hours would have elapsed and undigested food could not have
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32. The body of the deceased was subjected to post mortem
“it is possible that the death of Smt. Indra might have been
35. Neither PW-10 nor PW-11 has stated as to the exact time at
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
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the persons had their dinner. But, according to 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
suggestion was put to this witness that the said witness was
statement of PW-3 i.e. the expert evidence, with the version of the
support the said version, the Court would not be inclined to treat
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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
this Court in the case of Shambhoo Missir & Anr. v. State of Bihar
[(1990) 4 SCC 17]. In that case, this Court found that the
that hour when the food was taken by the deceased at 8.00 a.m.
and if this be so, then the whole case of the prosecution could
had taken the meals before 8.00 a.m. and the death had occurred
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at 3.00 p.m. and the undigested food particles were found in the
PW3, Dr. L.L. Bundela, who stated that the stomach of the
note that the statement of this very witness that the death of
Indra could have taken place between 1.00 to 1.30 a.m. remained
and xylose to a solid meal can delay its emptying from the
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stomach. Foods high in fat content are handled duly by the
separately from those of other liquids and solids. Many foods are
stomach, they are converted into a liquid. Despite this, the liquid
foods are emptied from the stomach much more slowly than are
follows:
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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
1mm in diameter freely pass into the intestine
during the fed period, often at rates faster than
solid nutritive food. Larger spheres pass more
slowly, usually after an initial lag period, with
spheres up to 2.4 mm in diameter passing with
the calorie-containing components of a solid
meal. Spheres as large as 7 mm do not empty
with solid food at all and are retained until
gastric phase III activity resumes in the
interdigestive period. It has been reported that
undigested materials as large as 2 cm in
diameter can pass into the intestine during the
fasting period under normal conditions.
Other physical factors play a role in
determining the gastric emptying of indigestible
solid material…..”
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completely prior to reaching the distal small intestine. Certain
40. The above findings are based on medical studies and are
42. Judging the time of death from the contents of the stomach,
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beyond reasonable doubt and the same points towards the guilt
deceased.
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44. Such an approach would even otherwise be justifiable as in
what the last meal was and what article of food, if any, was taken
from it that the occurrence must have taken place after the
so far as the food contents are concerned, they remain for long
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responsible for drawing an inference with regard to the digestion
[(1994) SCC (Cr.) 1745], the Court while dealing with the evidence
of DW-1 who had opined that since there was some semi-digested
food, the occurrence must have taken place earlier and not at
3.00 a.m. The Court reiterated the principle that this was an
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the prosecution evidence along with the medical evidence to
their dinner. The only evidence is that they had dinner and after
apply that they had dinner late and not in the early hours of the
his sister’s house at about 7.00 p.m., whereafter all the events
the death of Indra had taken place between 1.00 a.m. to 1.30
village which was far away from the place of occurrence and they
witness himself has not partially been believed by the trial Court.
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The mere fact that the accused were residents of a village at some
had found that the prosecution case was not even supported by
medical evidence and the conduct of the said witness was very
unnatural.
learned counsel for the appellant wishes to derive from the facts
of this case. We are to deal with the present case on its own
facts. Both the trial court and the High Court have believed
PW10 and PW11 and have returned a finding of guilt against the
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accused. The Courts have adversely commented upon the
where she was sleeping with her child. He claims to have been
the other accused. It was PW10’s own house where the murder
has taken place and, therefore, his presence in the house cannot
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.
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
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deceased. She had also suffered abrasion injury on her left
P5, states the cause of the death, as per opinion of the Board, as
vain. Later, it was found that she had been killed. It is a case
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51. The accused in the present appeal had also taken the plea
far away from the place of occurrence. This plea of alibi was
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
the trial court held that none of these documents reflected the
witnesses have been accepted by the Courts below and also the
the Courts below, then the plea of abili raised by the accused
lay upon the appellants and the appellants have failed to bring on
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record any such evidence which would, even by reasonable
SCC 430]}.
while relying upon the judgment of this Court in the case of S.P.
in favour of the family of Satish and Sunder and that Indra had
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53. The proposition of law advanced by the counsel for the
the judicial record and could be used against Ratti Ram for
present accused as such, but the fact that the statement of Ratti
prosecution cannot be wiped out from the record and would have
54. The present accused have not been convicted on the basis of
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medical evidence. The bangles which were recovered from the
place of occurrence and the injuries that were inflicted upon the
body of the deceased clearly show that she struggled for life and
mere suspicion and the reliance placed by the counsel upon the
admission stage itself may not adversely affect the case of the
further.
56. We also do not propose to rely upon the dismissal of the SLP
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conclusion on merits that the prosecution in the present case has
the judgment of the High Court under appeal does not call for
any interference.
are dismissed.
…….…………......................J.
(A.K. Patnaik)
...….…………......................J.
(Swatanter Kumar)
New Delhi,
May 8, 2012
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