* IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL. APPEAL NO. 110 OF 1997
% Judgment reserved on: 22th January, 2010
Judgment delivered on: 29th January, 2010
RAJU @ BATTU . . . APPELLANT
Through: Mr. K.B. Andley, Senior Advocate
with Mr. M.L. Yadav, Advocate.
VERSUS
STATE OF DELHI . . .RESPONDENT
Through: Mr. Pawan Sharma, Standing
Counsel.
CORAM :-
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of Local newspapers
may be allowed to see the Judgment? No
2. To be referred to the Reporter or not? No
3. Whether the Judgment should be
reported in the Digest? No
AJIT BHARIHOKE, J.
1. This appeal is directed against the judgment of learned Additional Sessions Judge dated 12.02.1997 vide which the appellant Raju @ Battu and his co-accused Dharmender have been convicted for the offence of murder of Rajiv @ Kale (herein after referred to as „deceased‟) and the order on sentence dated 13.02.1997 in terms of Crl. A.No.110/1997 Page 1 of 22 which the appellant as well as his co-accused was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.500/- each and in default of payment of fine, to undergo RI for further period of one month each.
2. Briefly stated the case of prosecution is that on 26.09.1993 at about 11.00 p.m., the deceased was brought to the casualty of GTB Hospital, Delhi by his brother Ajay, PW7with the history of assault with sharp weapon. He was attended to by Dr.Sanjay Sharma, who found two incised wounds on the person of the deceased and prepared the MLC Ex.PW13/A. The duty Constable present at GTB Hospital conveyed the information about the admission of injured Rajiv @ Kale to the police station which was recorded as DD No.17A (Ex.PW10/A) by the Duty Officer Head Constable Kishan Chand Harit, PW10.
3. The DD report recorded that Pramod Kumar, Duty Constable No.767/NE has informed over telephone from GTB Hospital that "Rajiv @ Kale, S/o Gopal Singh, aged 18 years, resident of 750, Rehman Building, Shahdara, who was stabbed at his house has been got admitted to GTB Hospital in injured condition by his brother. Some officer may be sent".
Crl. A.No.110/1997 Page 2 of 22
4. The Duty Officer sent the copy of DD report through Constable Dharampal to S.I. Rakesh Kumar. ASI Raj Kumar also left the police station for GTB Hospital. On receipt of copy of the DD report, PW8, S.I. Rakesh Kumar reached at the GTB Hospital along with Constable Dharampal and Constable Bir Bhan and collected the MLC of the deceased Rajiv Ex.PW13/A, who was declared unfit for statement. Ajay Kumar, PW7 was available at the hospital so S.I. Rakesh Kumar recorded his statement Ex.PW8/A and sent it to the police station after appending his endorsement thereon, through Constable Bir Bhan for the registration of the case. On the basis of said statement, formal FIR under Section 307/34 IPC was registered against the appellant and his co-accused Dharmender and the investigation was handed over to the SHO Inspector Ranjit Singh.
5. From the hospital, S.I. Rakesh Kumar went to the spot of occurrence and prepared the rough site plan Ex.PW8/B on the pointing of PW7, Ajay. In the meanwhile, SHO Inspector Ranjit Singh also reached at the spot. Blood was noticed on the ground at the place of occurrence. The SHO lifted the blood stained earth as also the control earth from the spot, which was seized vide memo Ex.PW7/A. The deceased Crl. A.No.110/1997 Page 3 of 22 expired on the same night at 12.15 a.m., which information was conveyed by Duty Constable Pramod Kumar to the police station and it was recorded as DD No.64B (Ex.PW11/A) and a copy thereof was sent to the Investigating Officer, who was present at the spot.
6. Co-accused Dharmender was arrested by Inspector Ranjit Singh on 27.9.1993 from his house located in Rehman Building. The appellant was arrested on 30.9.1993. During investigation, appellant Raju, on 01.10.1993, led the police party to his house No.E-4/140, Nand Nagri and got recovered his t-shirt Ex.P1 which he was wearing at the time of the incident, which was taken into possession vide memo Ex.PW8/D. The appellant also pointed out the place of occurrence to the police vide memo Ex.PW8/E and he got recovered the weapon of offence i.e. churri Ex.P5 from under the bushes in the north-west corner of Tikona Park. Sketch of the churri Ex.PW8/G was prepared and the churri was taken into possession vide memo Ex.PW8/F after converting it into a sealed parcel. The SHO conducted the inquest proceedings and sent the dead body for post mortem. The blood stained pant and shirt of the deceased were preserved and sealed by Crl. A.No.110/1997 Page 4 of 22 the doctor who conducted the post mortem and were handed over to the Investigating Officer.
7. As per the post mortem report, the deceased had suffered following injuries:-
(1) incised stab wound, spindle shaped with one angle more acute than other stitched with 7 interrupted sutures of size 7.5x1.5x cavity deep cm placed in third intercostals space in right side chest 6.5 cm below sternal notch and 7.5 cm above right nipple. The wound was going backwards medially and down-wards cutting the skin. Subcutaneous tissue lower border of second rib intercostals muscles and blood vessels, pleura going upto anterior surface of upper lobe of right lung by producing an incised wound of 4x0.3x0.5 cms. blood was present in and around the wound.
(2) incised stab wound of size 4.5x1.2x9 cms placed on right side back 5.5 cms lateral to mid line and 11 cms posterior to left anterior superior iliac spine. Margins regular sharp spindle shaped with one angle more acute than other directed downwards outwards and anterior cutting the skin and going between the musslce mass. Blood was present in and around the wound.
According to Dr.S.K. Verma, PW16, time since death was 10 hours and the cause of death was shock due to haemo pneumo thorax as a result of injury no.1, which was caused by a sharp weapon. The doctor opined that injury no.1 was sufficient to cause death in the ordinary course of nature. The post mortem report is Ex.PW16/A.
8. On completion of formalities of investigation, the appellant and his co-accused were challaned for having committed the murder of Rajiv Crl. A.No.110/1997 Page 5 of 22 @ Kale. They were charged for having committed the offence punishable under Section 302 IPC read with Section 34 IPC. The appellant as well as his co-accused pleaded not guilty and claimed to be tried.
9. The prosecution, in order to bring home the guilt of the appellant as well as his co-accused, examined as many as 19 witnesses. The prosecution case is based upon the ocular testimony of PW1 Vijay, who is an independent witness and PW6, Amit Kumar and PW7, Ajay Kumar, brothers of the deceased. PW1, Vijay, who has claimed to be the eye-witness of the occurrence, has not supported the case of the prosecution and instead he has stated that on 26.9.1993, at about 10.30/10.45 p.m., while he was taking meals along with PW Amit in his house, the deceased Kale came from outside. He was holding his abdomen with his hands and requested them to take him to the hospital. PW7 Ajay, who was upstairs at that time, came down and took him to the hospital. In his cross-examination by the learned APP, he denied the suggestion that actually the accused Dharmender had caught hold of the deceased and the accused Raju (appellant) gave him the knife blow.
Crl. A.No.110/1997 Page 6 of 22
10. PW6, Amit Kumar was examined on two dates. In his examination-
in-chief recorded on 18.10.1994, PW6 stated that on 26.09.1993 at about 10.00 p.m. while he and his brother Rajiv were taking meals, the appellant and his co-accused came and called Rajiv and he left the house with them. He (witness) then sent his neighbours Vijay, PW1 and Balwant after them and he claimed that he had not seen the incident of stabbing. His further examination was deferred by the learned Additional Sessions Judge, as on that date, prosecution was not present in the Court. However, when PW6, Amit Kumar was examined on 23.12.1994, he, in his examination-in-chief, supported the case of the prosecution by stating that both the accused had called his brother and he also followed them and he saw that accused Dharmender had caught hold of his brother and appellant Raju stabbed him on his chest with a knife. In answer to a court question to clarify the above referred inconsistency in his two statements, he stated that his version dated 18.10.1994 was incorrect and his explanation for that was that it was his first occasion to appear in the Court and thereafter he said that he was not under any fear while appearing as a witness on 23.12.1994. From the above explanation, it appears that perhaps the witness wanted to say that error of fact Crl. A.No.110/1997 Page 7 of 22 occurred in his testimony dated 18.10.1994 as he was nervous. This witness also stated that on an earlier occasion on 23.9.1993, when VCR was being played in the gali in front of his house, the appellant and his co-accused started behaving in an obscene manner, which was objected to by the deceased, who turned both of them away. This is the suggested motive for the crime.
11. PW7, Ajay Kumar, in his complaint Ex.PW8/A had stated to the Investigating Officer that on the night of 23.9.1993, they were seeing a movie on VCR/TV at their house. The appellant Raju and his co- accused Dharmender were also watching the movie. They were intermittently making obscene gestures to which the deceased took an offence and forbade them. The appellant and his co-accused took offence to the said act of the deceased and left the house. He also stated in the complaint that on 26.9.1993, at about 10.30 p.m., the appellant and his co-accused came to his house and called the deceased. The deceased went out with them and apprehending that the appellant and his co-accused may not cause any harm to the deceased, he and his brother Amit @ Banti followed them. In the gali, accused Dharmender, all of a sudden, caught hold of the Crl. A.No.110/1997 Page 8 of 22 deceased to restrain him and the appellant inflicted knife blows on him. They raised alarm and tried to apprehend the accused person, but they fled away from the spot. PW7, Ajay Kumar in his testimony more or less reiterated his version given in the complaint Ex.PW8/A. He also stated that the accused Dharmender was arrested by the police from Durgapuri Chowk and the appellant Battu surrendered before the police. On interrogation, the appellant made a disclosure statement regarding concealment of the weapon of offence and pursuant to that he got the knife recovered from a park. He also identified a t-shirt belonging to the appellant. He also identified the blood stained pant and shirt belonging to the deceased. He further stated that the IO seized the blood stained earth and sample earth from the spot of occurrence vide memo Ex.PW7/A. In his cross-examination, he stated that the knife Ex.P5 was not recovered in his presence.
12. PW12, Head Constable Jagvir Singh is the duty officer who registered the formal FIR Ex.PW12/A on the basis of the rukka Ex.PW8/A. He, in his cross-examination stated that copy of the FIR was not immediately sent to the senior officers through special messenger, though copies were sent to the area Magistrate and the DCP on the Crl. A.No.110/1997 Page 9 of 22 next day through dak. We may note that no explanation has been given for not sending the special report immediately to the superior officers, including the Magistrate. This circumstance casts a shadow of doubt on the investigation and leaves a scope for possible manipulation of the FIR in the intervening period till the special report was sent to the superior officers.
13. PW8, S.I. Rakesh Kumar and PW19, Inspector Ranjit Singh are the other important witnesses who conducted investigation at one stage or the other.
14. We may note at this stage that co-accused Dharmender, who had also filed an appeal against his conviction, expired during the pendency of his appeal, therefore, it is not necessary to refer to his statement under Section 313 Cr.P.C. or his defence. The appellant in his statement under Section 313 Cr.P.C. has denied the prosecution version. He has claimed that he was picked up from his house on the night of 26.9.1993 at around 2.00 a.m. and taken to the police station where he was beaten and his signatures were obtained on blank papers. After illegally detaining him for three days, the police produced him before the Magistrate and he was remanded to judicial custody. According to Crl. A.No.110/1997 Page 10 of 22 the appellant, he has been falsely implicated by the police, though he claimed that he had no ill will or enmity with anyone.
15. One Smt.Dhani Devi was examined in defence. She has stated that the deceased was a bad character of the area and he had burnt his father by pouring kerosene on him. She also stated that the appellant and his co-accused were persons of good moral character.
16. Learned Trial Court, relying upon the ocular testimony of PW6, Amit Kumar and PW7, Ajay Kumar found the appellant and his co-accused guilty of murder of Rajiv @ Kale and convicted both of them on the charge of Section 302 IPC read with Section 34 IPC.
17. Learned counsel for the appellant has submitted that learned Trial Court has erred in appreciation of the evidence as he has ignored the fact that the only purported independent witness to the occurrence, PW1 Vijay Kumar has not supported the case of the prosecution and his testimony, if taken into account, rules out any possibility of PW6 and PW7 being the eye-witnesses to the occurrence. He further submitted that even PW6 Amit Kumar, when he was initially examined on 18.10.1994, denied having seen the incident and according to him while he and PW Vijay Kumar were having meals in Crl. A.No.110/1997 Page 11 of 22 his house, the deceased came from outside holding his abdomen and requested them to take him to the hospital, on which PW7 Ajay Kumar came from upstairs and took him to the hospital. Learned counsel submitted that something transpired between 18.10.1994 and 23.12.1994 when Amit Kumar was recalled for further examination- in-chief which made him to take a somersault to support the prosecution version. Learned counsel has pointed out that even the explanation given by PW6 regarding the contradiction on such material aspect of the case, which has been referred to above, is not acceptable. Thus he has urged us to conclude that initial version of PW6, which rules out any possibility of even the complainant having witnessed the occurrence, should be taken as true or at least it should be inferred that PW6, who has been blowing hot and cold, is not a reliable witness. As regards the testimony of PW7, learned counsel for the appellant has submitted that perusal of the MLC Ex.PW13/A of the deceased shows that PW7 had taken the deceased to the hospital. Despite of that, in the history recorded in the FIR, it is mentioned "h/o assault by sharp weapon". Learned counsel for the appellant has submitted that had PW7 been the witness to the occurrence, it is highly improbable that he would not have given this Crl. A.No.110/1997 Page 12 of 22 information about the name of the assailants to the doctor at the time of preparation of the MLC. Thus, according to him, absence of name of the appellant and his co-accused as assailants in the MLC is sufficient to infer that PW7 is not an eye-witness and he was not even aware of the identity of the assailants till the preparation of the MLC. Learned counsel has also drawn our attention to the DD report Ex.PW10/A i.e. DD No.17A dated 26.9.1993, which was recorded on the basis of information conveyed to the police station by the duty constable posted at GTB Hospital. As per this DD report, the duty officer had informed that Rajiv @ Kale, son of Gopal Singh, aged 18 years, resident of 750, Rehman Building, Shahdara, who was stabbed at his house had been admitted to the GTB Hospital in injured condition by his brother. Learned counsel has submitted that if this DD report is to be believed, then all the details about the deceased must have been given to the duty constable either by the deceased himself or by the complainant because there could have been no other source to provide that information to the duty constable. Learned counsel for the appellant has submitted that if the above information regarding the parentage, age and address of the injured could be given by the complainant Ajay, PW7, then nothing prevented him from Crl. A.No.110/1997 Page 13 of 22 disclosing the name of the assailants in the information if he actually was the eye-witness to the occurrence and was aware of the name of the assailants. In view of the said circumstances, learned counsel for the appellant has urged us to reject the testimony of PW6 and PW7 and extend the benefit of doubt to the appellant.
18. Learned counsel for the State obviously has argued in support of the impugned judgment. According to him, PW7, Ajay Kumar has fully supported the case of the prosecution and his version stands corroborated by the testimony of PW6, Amit Kumar who has also deposed in more or less similar fashion. Learned prosecutor has submitted that from the MLC it is clear that PW7 took the deceased to the hospital, which is sufficient assurance that he must have been the witness to the occurrence, because the injured was admitted in the hospital at 11.00 p.m. i.e. within half an hour of the occurrence, which took place at 10.30 p.m. as per the rukka Ex.PW8/A, which circumstance is sufficient assurance that PW7 was actually the eye- witness to the occurrence. Regarding the two contradictory versions in the examination-in-chief of PW6, Amit Kumar, learned counsel for the State has submitted that it can be attributed to a slip of tongue, Crl. A.No.110/1997 Page 14 of 22 which occurred because the witness perhaps was overawed because of the atmosphere in the Court as it was his first occasion to appear in the Court. Learned counsel also submitted that Section 225 of the Criminal Procedure Code mandates that in every trial before a court of session, the prosecution shall be conducted by a public prosecutor. He has pointed out the Court‟s observation at the end of testimony of PW6, Amit Kumar dated 18.10.1994, wherein it is mentioned that his further examination is deferred because of non-availability of the prosecutor in the Court on that day. Thus, it is submitted that the examination of the witness on 18.10.1994 was against the law and its contents are of no consequence. Learned prosecutor further submitted that the testimony of PW6 and PW7 Amit Kumar is consistent with the case of the prosecution and there is nothing on the record to suggest that they had any reason to falsely implicate the appellant and his co-accused in the case and allow the real culprit to go scot free. Thus, he has urged us to dismiss the appeal.
19. We have carefully considered the rival contentions and we find substantial force in the submissions of learned counsel for the appellant. Ex.PW10/A is the record of the first information received Crl. A.No.110/1997 Page 15 of 22 in time about the incident at the police station, which admittedly was sent to S.I. Rakesh Kumar for verification. As per this DD report, it was intimated that injured Rajiv @ Kale, son of Gopal Singh, aged 18 years, resident of 750, Rehman Building, Shahdara, who was stabbed at his house had been admitted by his brother to the GTB Hospital. There is nothing on the record to suggest that by that time, anyone else except the brothers of the deceased had reached the hospital. The fact that the details of the deceased, including his parentage, age and address is mentioned in the DD report is sufficient to infer that the information contained in the DD report, which was conveyed by duty constable Pramod Kumar was given to him either by the injured himself or by the brother of the deceased. Since as per the MLC, the deceased was unfit for making statement, possibly the information to the duty constable was given by the brother of the deceased. If that was the case, then the incident had taken place at the house and not in the gali outside the house, as projected by the prosecution. Learned counsel for the State has submitted that the information in the DD report could be the result of some misunderstanding or communication gap. We are not convinced with this argument, particularly when SI Rakesh Kumar, PW8, who was the initial Crl. A.No.110/1997 Page 16 of 22 Investigating Officer or Inspector Ranjit Singh, who conducted subsequent investigation of the case did not even take pains to go to the house of the deceased to verify the truthfulness of the contents of the DD report Ex.PW10/A. Thus, it is apparent that investigation in this case is highly flawed because the Investigating Officer did not even visit the house of the deceased to find out if the incident had actually taken place there. Had the Investigating Officer immediately proceeded to the house of the deceased, perhaps he could have come across some evidence authenticating the facts detailed in the DD report. In our considered view, this serious lapse in the investigation by itself is sufficient to extend the benefit of doubt to the appellant.
20. Coming to the eye-witness account. PW1 Vijay, who is the only independent eye-witness in this case, has not supported the case of the prosecution. Learned counsel for the State has submitted that since he is a hostile witness and he has resiled from his earlier statement, no importance should be attached to his testimony. It is settled law that testimony of a hostile witness cannot be rejected as a routine. The Court is obliged to carefully consider even the testimony of a hostile witness and even if some part of the testimony appears to be truthful Crl. A.No.110/1997 Page 17 of 22 and acceptable, it can be taken into account for arriving at a just conclusion. PW1 Vijay has stated that on the relevant night at around 10.30 p.m., he was having meals with PW Amit in the house of Amit, when the deceased Kale came from outside with his hands on his abdomen and asked to be taken to the hospital. He also stated that PW7 Ajay then came from upstairs and took him to the hospital. Though a suggestion was given to this witness by learned APP in his cross-examination that accused Dharmender caught hold of the deceased and the appellant gave him knife blow, his above referred version was not challenged by the learned prosecutor by giving counter suggestion to the witness. If aforesaid version is to be believed, then it becomes highly doubtful that PW6 or PW7 are the eye-witnesses.
21. PW6, Amit Kumar, as is apparent from his testimony referred to above, had given two contradictory versions in his examination-in- chief. In the initial version which was recorded on 18.10.1994, PW Amit did not support the prosecution story and according to him, he had not seen the stabbing incident. But on 23.12.1994, when he was recalled for further examination-in-chief, he changed his version. His Crl. A.No.110/1997 Page 18 of 22 explanation for the aforesaid contradiction that it was a slip of tongue as he was appearing for the first time in any Court of law is not very convincing. It is anybody‟s guess as to what transpired between 18.10.1994 and 23.12.1994 which made PW6 Amit change his version. Since this witness has given two contradictory versions on a material aspect of the case, we find this witness to be highly unreliable. As such, his testimony cannot be taken into account. Thus we are left with the sole testimony of PW7, Ajay Kumar who stated that on the night of 26.9.1993, at around 10.30 p.m., his brother Rajiv was called out by the appellant and his co-accused and thereafter he went along with them. The moment Rajiv left with the appellant and his co-accused, he suddenly remembered the incident of 23.9.1993 referred to above and therefore, apprehending that something untoward may not happened with his brother, he along with his brother Amit followed them. This version of PW7 appears to be highly unnatural. The episode of 23.9.1993, as referred to above, was too trivial to be taken seriously. Further, it is noticed that neither in the MLC Ex.PW13/A, nor in the DD report Ex.PW10/A is there is any mention of the name of the assailants. In the DD report Ex.PW10/A, all the vital details of the deceased are mentioned, which Crl. A.No.110/1997 Page 19 of 22 implies that aforesaid information was given to the duty constable by the brother of the deceased. If he was actually the eye-witness, under the natural course of circumstances, while detailing the particulars of the deceased, PW7 Ajay definitely would have mentioned the names of the assailants. The absence of the names of the assailants in the DD report Ex.PW10/A casts a doubt on the testimony of PW7 Ajay that he actually witnessed the incident. Otherwise also, in view of the other infirmities pointed out above, we do not deem it safe to base conviction of the appellant on the sole testimony of PW7.
22. So far as the submissions of learned prosecutor regarding mandate of Section 225 Cr.P.C. is concerned, we are not inclined to accept it. It would have been better if the learned Sessions Judge, in view of the mandate of Section 225 Cr.P.C., had refrained from recording the statement of a material eye-witness in the absence of the public prosecutor. Once he has examined the witness, his testimony cannot be effaced from the record and it can be considered as statement of a witness recorded under Section 311 Cr.P.C., which provision confers power upon the Court to examine any person in attendance at any stage of any inquiry, trial or other proceedings, under the Code of Crl. A.No.110/1997 Page 20 of 22 Criminal Procedure. We may note that the learned Additional Sessions Judge, after deferring further examination of PW6 on 18.10.1994 on account of absence of the public prosecutor proceeded further to examine PW7 complainant Ajay Kumar on the same day, which could have been avoided once the learned Additional Sessions Judge had decided to defer further examination of PW6 due to absence of the Public Prosecutor. Such selective examination of witnesses in absence of the Prosecutor can sometimes give rise to unnecessary apprehension about the fairness of the trial.
23. Other submission of learned counsel for the State is that there is no possibility of PW6 and PW7 being untruthful as there is no reason as to why they would falsely implicate the appellant and his co-accused and allow the real culprit to go scot free. We are not convinced with this argument, particularly in view of the fact that as per the DD report Ex.PW10/A, the deceased was stabbed at his house, which fact has not been verified by the Investigating Officer. If the deceased was actually stabbed in the house, then the real culprit, in all likelihood, has to be one of the family members/resident of the house. In that case, PW6 and PW7 had every reason to twist the facts and shift the Crl. A.No.110/1997 Page 21 of 22 blame in order to save the real culprit, who could be one of the family members.
24. In view of the discussion above, we are of the view that this is a case of unfair/casual investigation. The evidence produced by the prosecution does not inspire confidence and we find it difficult to sustain the conviction of appellant on the basis of above referred unreliable testimonies. Accordingly, we accept the appeal. The impugned judgment of conviction and the order on sentence are hereby set aside. The appellant is acquitted of the charge under Sections 302/34 IPC, giving him benefit of doubt.
25. The appellant is on bail. His bail bond and surety bond stand discharged.
AJIT BHARIHOKE, J.
A.K. SIKRI, J.
JANUARY 29, 2010 gm Crl. A.No.110/1997 Page 22 of 22