* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: January 19, 2010
Judgment delivered on: July 02, 2010
+ CRIMINAL APPEAL NO.124/1997
RAM DAS & ANR ....APPELLANTS
Through: Ms. Rebecca M. John, Advocate
Versus
THE STATE(N.C.T. OF DELHI) .....RESPONDENT
Through: Mr. Pawan Sharma, Standing Counsel
WITH
CRIMINAL APPEAL NO.125/1997
KRISHNA ....APPELLANT
Through: Ms. Rebecca M. John, Advocate
Versus
THE STATE(N.C.T. 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 papers
may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be
reported in Digest ? Yes
AJIT BHARIHOKE, J.
1. These appeals are preferred against the impugned judgment dated 13th January, 1997 holding the appellants guilty of committing Crl.A.Nos.124/1997 & 125/1997 Page 1 of 16 murder of Ravinder @ Pamli and causing simple hurt to Naresh in furtherance of their common intention and convicting them on the charges under Section 302 IPC read with Section 34 IPC and Section 323 IPC read with Section 34 IPC as also the consequent order on sentence dated 16th January, 1997.
2. Briefly stated, case of the prosecution is that on 30.04.1992 at about 07:30 pm, PW13 Naresh Kumar, PW2 Vijender and Ravinder @ Pamli (hereinafter referred to as deceased) were having „chowmein‟ in the park adjacent to Gujral Tent House in B-Block, Jahangirpuri. The appellants Ram Das, Rakesh and their mother Krishna @ Paro came there. Appellant Ram Das @ Kale gave a push to the deceased, who was sitting on a chair and shouted "Bastard, we have come prepared and shall finish your story today" and appellant Krishna exhorted him by saying "Beta Maro, Haramjadon ko". In the meanwhile, appellant Ram Das @ Kale took out a „churi‟ from under his shirt and inflicted a blow with it to the deceased Ravinder @ Pamli. On receiving the „churi‟ blow, the deceased ran, saying "Mujhe churi mar dee". Appellant Rakesh @ Khote chased the deceased and caught hold of him from behind on the road adjacent to the park and the appellant Ram Das gave „churi‟ blows from the front side on the person of the deceased. When PW13 Naresh tried to rescue the deceased, appellant Krishna picked up a brick and hit Naresh on his head from behind. Appellant Rakesh also assaulted Crl.A.Nos.124/1997 & 125/1997 Page 2 of 16 him with legs and fists. Thereafter, all the three appellants ran away shouting that they have accomplished their job.
3. PW2 Vijender took the deceased Ravinder to Hindu Rao Hospital in a three wheeler scooter. PW Naresh also followed them to the hospital. In the hospital, the deceased was declared brought dead. The injury on the head of PW Naresh was opined as simple and he was declared fit for statement.
4. As per the case of the prosecution, on 28.04.1992, the deceased had asked a child to fetch water for him and the appellant Ram Das had forbidden said child from doing so. On this, there was an altercation between the appellant Ram Das and the deceased and the appellant Ram Das had threatened the deceased that he would take revenge. This, according to the prosecution, was the motive for the crime.
5. Information regarding the occurrence was conveyed by someone to the Police Control Room and PCR Constable Ms. Usha conveyed said information to police station Jahangirpuri, which was recorded as DD No. 67B on 30.04.1992 at 07:45 pm. Inquiry was entrusted to ASI Kanti Prasad, who along with Constable Raju Mohan went to the spot. There, he came to know that the injured had been removed by his brother to the hospital. He left Constable Raj Mohan at the spot to protect the scene of crime and went to Hindu Rao Crl.A.Nos.124/1997 & 125/1997 Page 3 of 16 Hospital. He collected the MLC of the deceased as well as of PW13 Naresh. Naresh was declared fit for statement and ASI Kanti Prasad recorded his statement Ex.PW13/A. He also met PW Vijender in the hospital. ASI Kanti Prasad, along with both Naresh and Vijender, returned to the spot from where he sent rukka Ex.PW19/A to the police station through Constable Raju Mohan. On the basis of said rukka and statement of Naresh Kumar, formal FIR was registered.
6. SHO Inspector Ishwar Singh also reached at the spot along with the staff and took over investigation of the case. He inspected the spot and prepared site plan. He got the place of occurrence photographed, lifted the exhibits from there and also seized blood- stained clothes of PW2 Vijender. The Investigating Officer conducted the inquest proceedings on 01.05.1992 and post-mortem was conducted by Dr. L.T.Ramani (PW10). His report is Ex.PW10/A. As per the report, there were five external injuries on the body of the deceased, which were ante-mortem in nature. Injuries No. 1 to 4 were caused by sharp weapon and injury No. 5 was an abrasion on the left knee. Injury Nos. 2, 3 & 4, in the opinion of Dr. L.T.Ramani, were sufficient to cause death in ordinary course of nature. As per the post-mortem report, the cause of death was haemorrhage consequent to injuries to thorasic and abdominal viscera. Crl.A.Nos.124/1997 & 125/1997 Page 4 of 16
7. Appellant Krishna @ Paro was arrested on the pointing of PW2 by the Investigating Officer on 01.05.1992. On interrogation, she made a disclosure statement Ex.PW20/D. Appellants Ram Das and Rakesh were arrested on 02.05.1992 on the pointing of the appellant Krishna. During interrogation, they also made disclosure statements. Appellant Ram Das, pursuant to his disclosure statement got recovered the weapon offence i.e. „churi‟ Ex.P3 as well as the clothes worn by him at the time of occurrence, which were stained with blood. Those were taken into the possession and the case property was deposited in „malkhana‟.
8. On 25.06.1992, „churi‟ Ex.P3, which was in a sealed parcel was produced before the Autopsy Surgeon for his opinion and the Autopsy Surgeon Dr. L.T.Ramani, after examining „churi‟ opined that the injuries found on the body of the deceased were possible with that „churi‟.
9. The Investigating Officer also got prepared the scaled site plan of the spot of occurrence. He recorded statements of the witnesses and sent the exhibits to the CFSL. The CFSL reports are Ex.PW20/F, Ex.PW20/G and Ex.PW20/H, which have been tendered in evidence.
10. On completion of the investigation, charge-sheet under Section 302 IPC and Section 323 IPC, both read with Section 34 IPC was filed against the appellants.
Crl.A.Nos.124/1997 & 125/1997 Page 5 of 16
11. Learned Additional Sessions Judge framed charges under Section 302 IPC read with Section 34 IPC and Section 323 read with Section 34 IPC against the appellants. The appellants pleaded not guilty to the charges and claimed to be tried.
12. The prosecution has examined 22 witnesses in support of its case. The appellants, in their respective statements recorded under Section 313 Cr.P.C. have denied the evidence against them and claimed innocence.
13. Appellant Krishna @ Paro in her defence examined DW1 Gopi, who is the elder brother of her husband. He deposed that on the day of the occurrence, appellant Krishna had attended a function at his house in connection with the marriage of his son. She came there at around 03:00-04:00 pm and remained present in the function throughout the night. In the morning at about 03:00 or 04:00 am, the police came and arrested her.
14. As per the case of the prosecution, there are only two eye- witnesses to the occurrence, namely PW2 Vijender, brother of the deceased and PW13 Naresh. Case of the prosecution is that the FIR in this case was registered on the basis of the statement Ex.PW13/A of the complainant Naresh Kumar. He, however, in his testimony in court has not supported the case of prosecution. He stated that nothing happened in his presence. He was only hit on his head, as a Crl.A.Nos.124/1997 & 125/1997 Page 6 of 16 result of which he became unconscious. This witness was cross- examined by learned APP with the permission of the court. In the cross-examination, he denied all material suggestions put to him, but he admitted his signatures on statement Ex.PW13/A, which formed basis of registration of the case. He, however, explained that those signatures were obtained by the police officials when he was in semi-conscious condition.
15. PW2 Vijender has testified that on 30.05.1992, he and the deceased went to have „chowmein‟ near Gujral Tent House in B- Block, Jahangirpuri. PW Naresh @ Tota also joined them there. They placed an order for half plate „chowmein‟. In the meanwhile, Kale @ Ram Das and Khote @ Rakesh came there. Thereafter, appellant Paro @ Krishna also came at the spot. Appellant Kale told Ravinder @ Pamli (deceased) "Aaj tera safaya kar denge". Then appellant Paro exhorted "Maro haramjadon ko" and on this, appellant Kale pushed the chair of the deceased and inflicted a knife blow on the chest of the deceased. The witness stated that when he rushed to save the deceased, appellant Rakesh @ Khote grappled with him and gave him fist and kick blows. PW Naresh also tried to rescue Ravinder and the appellant Paro gave a brick blow to Naresh. In the mean time, the deceased ran out of the park but he was caught hold by the appellant Rakesh @ Khote from behind and the appellant Kale @ Ram Das inflicted further knife blows on the abdomen and Crl.A.Nos.124/1997 & 125/1997 Page 7 of 16 right side of the chest of the deceased. Thereafter, both the appellants ran away saying that they have done whatever they intended. PW2 also stated that he took his injured brother in a three wheeler scooter to Hindu Rao Hospital, where he was declared brought dead. He also stated that PW Naresh had fallen as a result of the brick blow and he reached at the hospital later. PW2 further stated that police met him in the hospital and he came with the police to the place of occurrence. From there, the police seized the blood-stained earth and control earth and also took measurements at the spot of occurrence. Those samples were then converted into separate sealed parcels and taken into possession vide memo Ex.PW2/A. He further stated that his blood-stained clothes were also seized by the police vide memo Ex.PW2/A. He identified his T-Shirt and Pant Ex.P1 and Ex.P2, which were taken into possession by the police. In the cross-examination, the witness stated that ASI Kanti Prasad met him in the hospital. He had a talk with the police there and told the police about the incident. He also stated in the cross- examination that his statement was recorded by the police on the same night wherein he had narrated all those facts which he had told ASI Kanti Prasad earlier. He, however, could not tell the name of the person who recorded his statement.
Crl.A.Nos.124/1997 & 125/1997 Page 8 of 16
16. The other material witnesses examined by the prosecution are PW5 Ram Prakash, PW6 Kiran Pal, PW19 ASI Kanti Prasad, PW20 Inspector Ishwar Singh and PW21 SI Ishwar Singh.
17. Learned Additional Sessions Judge, relying upon the testimony of sole eye witness Vijender (PW2) and the evidence of recovery of churi at the instance of the appellant Ram Das, found the appellants guilty and convicted them on both counts.
18. Learned Ms. Rebecca M. John, advocate appearing for the appellants has submitted that the learned Trial Court has fallen in grave error in placing reliance upon the testimony of PW2 Vijender.
19. Her first contention in this regard is that PW2 Vijender is an interested witness, being brother of the deceased. Therefore, it is not safe to rely upon his sole testimony when the purported independent witness of occurrence examined by the prosecution has not supported the case of the prosecution.
20. It is true that PW2 Vijender is the real brother of the deceased and for that reason, to some extent he can be termed as an interested witness. This, however, does not mean that he is an untruthful witness or his testimony is liable to be discarded, without any scrutiny, at the threshold.
21. In the matter of Harbans Kaur Vs. State of Haryana, AIR 2005, SC 2989, the Supreme Court observed thus:
Crl.A.Nos.124/1997 & 125/1997 Page 9 of 16
7. "There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused. No evidence has been led in this regard. So far as the delay in lodging the FIR is concerned, the witnesses have clearly stated that after seeing the deceased in an injured condition immediate effort was to get him hospitalized and get him treated. There cannot be any generalisation that whenever there is a delay in lodging the FIR, the prosecution case becomes suspect. Whether delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case, would depend upon the facts of each case. Even a long delay can be condoned if the witnesses have no motive of implicating the accused and have given a plausible reason as to why the report was lodged belatedly. In the instant case, this has been done. It is to be noted that though that was cross-examination at length no infirmity was noticed in their evidence. Therefore, the trial Court and the High Court were right in relying on the evidence of the prosecution witnesses."
22. In the matter of Ram Lakhan and Others Vs. State of U.P., 1996 (2) CC Cases 122 (SC), it has been held by the Hon‟ble Supreme Court that evidence of close relative cannot be excluded merely on the ground that they are interested witnesses. It is the duty of the court to scrutinise the evidence of such witnesses very carefully and if there is any doubt as regards their truthfulness, the court may discard their evidence.
23. Similarly in the matter of Ramji Surjya and Another Vs. State of Maharashtra, 1983 (2) Crimes, 237, Hon‟ble Supreme Court held thus:
"(8).There is no doubt that even where there is only a sole eye witness of a crime, a conviction may be recorded against the accused concerned provided the Court which hears such witness regards him as honest and truthful. But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be Crl.A.Nos.124/1997 & 125/1997 Page 10 of 16 closely related to the deceased and the accused are those against whom some motive of ill-will is suggested."
24. From the proposition of law enunciated above, it is apparent that the evidence of a witness related to the deceased cannot be discarded on sole ground of relationship. However, testimony of such witness should be scrutinised carefully and some corroboration should be found from the other material on record. In the light of the above principle of law, we now proceed to assess the testimony of PW2 Vijender.
25. As regards the merits of testimony of PW2 Vijender, learned counsel for the appellants submitted that his testimony is not worthy of credence and he appears to have been planted as a witness on an afterthought. In support of this contention, learned counsel submitted that though the incident is dated 30.04.1992 and though, as per the version of PW2 Vijender, he met ASI Kanti Prasad in the Emergency Ward of the Hospital in the evening of 30.04.92 and told him about the incident, yet his statement under Section 161 Cr.P.C. was not recorded by ASI Kanti Prasad. In support of this contention, she drew our attention to the cross-examination of ASI Kanti Prasad wherein he stated that he had not recorded the statement of PW2 Vijender. Dilating on this argument, learned counsel for the appellants drew our attention to the purported statement Ex.PW2/DA of PW2 Vijender which is claimed by the prosecution to have been recorded on 30.04.92. Learned counsel pointed out that this statement bears the signatures of Inspector Ishwar Singh, SHO Jahangir Puri with the date 02.05.92 Crl.A.Nos.124/1997 & 125/1997 Page 11 of 16 and is also not described as a supplementary statement. From this, she submitted that it is apparent that purported statement Ex.PW2/DA of the witness Vijender has been fabricated by the Investigating Officer on 02.05.92 on an afterthought to build up a case against the appellants. Thus, she has urged us to infer that PW2 Vijender is not an eye witness and he has been planted as an eye witness by the Investigating Officer on an afterthought.
26. Similar argument was also raised before the learned Trial Court. The learned Additional Sessions Judge, in the impugned judgment, has dealt with this argument in the following manner:
"35. On the face of it this argument of the ld. defence counsel appears to be sound one as the statement u/s 161 Cr.P.C. of PW Vijender Ex PW2/DA bears the date 2-5-92. Let us find out the truth.
36. PW2 Vijender has stated thus in his cross examination at page 17 in para 3:
" My statement was recorded on 30-4-92 before mid night, 12 O'clock. I do not know if my statement was recorded on 2-5-92 or not. After the occurrence the police had been meeting me off and on in connection with the investigation of this case."
37. Thus, the witness is categorical about the date of recording of his statement. Though the statement Ex PW 2/A bears the date 2-5-92 at the end under the signatures of the I.O, yet the second sentence in the second line of the statement starts with "Aaj Dinak 30-4-92 ....................." Subsequent part of the statement refer to the seizures made vide memos Ex PW 2/A and PW 2/B. These are also dated 30-4-
92. These facts indicate that the statement Ex PW 2/DA was recorded on 30-4-92 and not on 2-5-92. To further verify this fact I have gone through the case diary also. In para 12 of the case diary 1A dated 30-4- 92 there is mention of recording of statement of Vijender. Further, supplementary statement of PW Vijender was recorded on 1-5-92 which mentions that he confirms his earlier statement. This further confirms Crl.A.Nos.124/1997 & 125/1997 Page 12 of 16 that the statement Ex PW 2/DA was recorded on 30-4-92 and not on 2-5-92. The I.O. has just wrongly mentioned the date as 2-5-92."
27. We are unable to agree with the above line of reasoning adopted by the learned Additional Sessions Judge in rejecting the contention of the accused persons i.e. the appellants before us. Just because purported statement Ex.PW2/DA of PW Vijender starts with the words "Aaj Dinak 30.04.92 .........................." and it also refers to the seizures made by the Investigating Officer on 30.04.92 in presence of the witness vide memos Exhibits PW2/A and PW2/B, it cannot be safely inferred that the above statement was actually recorded on 30.04.92 and, due to inadvertence, the Investigating Officer instead of 30.04.92 has appended the date 02.05.92 under his signatures. Perusal of the testimony of Inspector Ishwar Singh (PW20), who purportedly recorded the statement PW2/DA, reveals that in his cross-examination he had stated that on the relevant day he had seized the clothes of PW Vijender at the spot and had not taken him to the Police Station. He also stated that statement of Vijender was not recorded by him. If this version is to be believed, then obviously Inspector Ishwar Singh did not record any statement of PW Vijender on 30.04.92. Therefore, this rules out any possibility of the inadvertent wrong mentioning of date on the statement Ex.PW2/DA as 02.05.92 instead of 30.04.92 by the Investigating Officer. Though it cannot be denied that sometimes inadvertent mistakes pertaining to the date on which the document is Crl.A.Nos.124/1997 & 125/1997 Page 13 of 16 prepared or signed do happen, however, one cannot lose sight of the fact that such inadvertent mistakes happen sub-consciously when the author of the document or its signatory is not conscious of the actual date. In the normal course of circumstances, in such cases, the author or signatory of the document is always likely to append the date preceding to the actual date on the document. On perusal of Ex.PW2/DA, we find that it is not only purported to have been signed on the date subsequent to the date of occurrence but the month is also not the same. It is highly improbable that such an inadvertent mistake could have been committed by the Investigating Officer. This circumstance raises a strong possibility that the purported statement of the witness Ex.PW2/DA has been subsequently introduced by the Investigating Officer on an afterthought to project PW2 Vijender as an eye witness and makes the prosecution story suspect.
28. Learned Standing Counsel for the State submitted that there can be no doubt about the presence of PW2 Vijender at the time of occurrence because the incident took place on 30.04.92 at 7:30 pm and as per the MLC, the deceased was brought to the Hindu Rao Hospital on the same day at 8:00 pm, i.e. within half a hour of the incident.
29. In order to properly appreciate the argument of learned counsel for the State, it is necessary to have a look upon the site plan of the place of occurrence Ex.PW20/A. As per the site plan, the incident took Crl.A.Nos.124/1997 & 125/1997 Page 14 of 16 place in DDA Park, B-Block Jahangir Puri. The park is adjacent to the main BC market road and across that road, some shops pertaining to C-Block and toilet block of C-Block of Jahangir Puri are shown. This imply that C-Block Jahangir Puri was located just across the road from the place of occurrence. PW2 Vijender is resident of C-1531, Jahangir Puri. This imply that he was living close by to the place of occurrence. Therefore, a possibility cannot be ruled out that on coming to know about the incident, he reached at the spot of occurrence after the incident and took his injured brother to the hospital. There is one more aspect to this case. If PW2 Vijender is to be believed then he, Naresh and the deceased are friends and they were taking Chowmein at the time of incident and that Naresh also sustained injury in that incident. In that eventuality, under the natural course of circumstances, PW2 Vijender was expected to take PW13 Naresh, who sustained injury while trying to save the deceased along with the deceased to Hindu Rao Hospital, which is not the case. This circumstance raises a doubt against the presence of PW2 Vijender at the time of occurrence. Thus, we do not find it safe to rely on his testimony.
30. Once the testimony of PW2 Vijender is found unreliable, we are left with only one incriminating circumstance i.e. the recovery of churi Ex.P3 recovered at the instance of the appellant Ram Das. As per the case of the prosecution, the recovered churi Ex.P3 was sent to CFSL for chemical analysis. Though some traces of human blood were found on the churi but it gave nil in the reaction for the blood group. The result Crl.A.Nos.124/1997 & 125/1997 Page 15 of 16 is that blood group on the churi has not been connected with the blood group of the deceased which was found to be "O" group. This circumstance, in absence of any other cogent incriminating evidence against the appellants, is not sufficient to hold the appellants guilty.
31. In view of our discussion above, we are unable to sustain the conviction of the appellants. We accordingly accept the appeal and set aside the impugned judgment of conviction as well as the consequent order on sentence.
32. Appellants are on bail. Their bail bond-cum-surety bonds are cancelled and discharged.
33. Both the appeals are disposed of accordingly.
AJIT BHARIHOKE, J.
JULY 02, 2010 A.K. SIKRI, J.
akb/pst
Crl.A.Nos.124/1997 & 125/1997 Page 16 of 16