HEM RAJ AND ORS. versus STATE OF HARYANA

Citation: [2005] 2 S.C.R. 1152 · Decided: 29-03-2005 · Supreme Court of India · Bench: P. VENKATARAMA REDDI · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
HEM RAJ AND ORS. 
v. 
STATE OF HARYANA 
MARCH 29, 2005 
B 
[P. VENKATARAMA REDDI AND P.P. NAOLEKAR, JJ.] 
Penal Code, 1860-Section 302-Death-Evidence of related 
eyewitnesses-Availability of independent eyewitness-Non-examination of-
C Absence of blood on ihe spot of occurrence-Inadequate light-Evidence of 
Investigating Officer, one of the eyewitnesses and time and source of FIR 
doubtful-Conviction by Courts below-On appeal, held : conviction not 
justified-In view of the evidence and broad probabilities there is possibility 
of conviction of wrong persons-Accused entitled to benefit of doubt. 
D 
Criminal Trial : 
Independent w.tness-Non-examinatio~Ejfect of on prosecution case~ 
Held: Non-examination of such witness by itself may not give rise to adverse 
inference against prosecution-But unexplained omission of examination would 
assume significance when the presence of eye-witness at the scene of occurrence 
E is doubtful. 
Appellants-accused were alleged to have murdered a person at about 
8.45 p.m. It was alleged that they had stabbed the deceased with knives. 
The incident was alleged to have been seen by PWs-4 and 5 (brother and 
relative of deceased respectively) and one 'K' an independent witness. PW4 
F was alleged to have seen the occurrence from a distance of 30 feet. PWs 4 
and 5 took the deceased to the hospital, where the deceased was declared 
dead by the doctor and he sent the 'rucca' to Police Station. PW-9, the 
Investigating Officer received the 'rucca' at the gate of the hospital itself 
and recorded the statement of PW 4 and sent the same to Police Station 
G on the basis of which FIR was recorded at 11.35 p.m. There was delay by 
Investigating Officer in reaching the spot of occurrence. Blood stains were 
not found there. Knife was recovered from accused 'K'. No blood stains 
were found on the clothes of PWs 4 and 5. After two days of the incident 
investigation was entrusted to PW-10, at the instance of Superintendent 
of Police, and he found that all the accused other that accused 'K' were 
II 
1152 
HEM RAJ v. ST A TE 
11531 
innocent. However all the accused were tried and charge was framed A 
against all of them u/s 302 IPC. Witness was not examined despite the facts 
that he took the deceased to hospital, was present in the hospital, FIR 
referred him as eye-witness, and was present in Court on one of the dates. , 
PW-9 stated that place of occurrence was pointed out to him by the eye-
witness 'K'. PW-10 in his examination did not give all the relevant details B 
' 
I 
of his ~nvestigation. PWs 4, 6 and 9, had given different versions regarding 
time of recording FIR. Trial Court convicted all the accused u/s 302 IPC 
on the basis of evidence of PWs 4 and 5. High Court confirmed the ' 
conviction and opined regarding non-examination of the independent 
eyewitness that his examination would amount to 'proliferation' of direct 
evidence; and as regards absence of blood stains from the scene it opined C 
that it would. have disappeared in view of the time gap between the incident 
and inspection of Investigating Officer. Hence the present appeals. 
Allowing the appeals, the Court 
HELD : 1. On a consideration of the evidence on record and the p 
broad probabilities, there is a reasonable possibility of some accused who 
were not involved in the attack having been convicted. It is difficult to 
sift the grain from the chaff. It is a case in which benefit of doubt has to 
be accorded to the appellants. (1162-E] 
2. Two days after the incident, the investigation was entrusted to PW-
10, at the instance of Superintendent of Police. PWIO in his evidence did 
not choose to give all the relevant details of his investigation. The version 
of this Investigating Officer itself casts a cloud on the reliability of the 
prosecution case as unfolded by .PWs 4 and 5 that four accused were 
involved. [1158-H; 1159-C) 
· 
3.1. The fact that no independent witness - though available, was 
examined and not even an explanation was sought to be given for not 
examining such witness is a serious infirmity in the prosecution case having 
regard to the indisputable facts of this case. To put a seal of approval on 
IE 
F 
the prosecution's omission to examine a material witness who is unrelated Q 
to the deceased and who is supposed to know every detail of the incident 
on the ground of 'proliferation' of direct evidence is not a correct 
approach. The corroboration of the testimony of the related witnesses-PW

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