JITENDER KUMAR v. STATE OF HARYANA

HELD: 1.1. It is correct that the name of accused 'JK' (appellant in Crl. A. NO. 1763 of 2008) was not mentioned 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. E

1.2. In the instant case, a definite role has been attributed to accused 'JK' by PW-10. Further, it was on 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 cross examination 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. PW- 11 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 PW- 11. 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)