THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 30.11.2012
+ CRL. A. 366/1997
MADAN LAL ... Appellant
versus
STATE OF DELHI ... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr K.B. Andley, Sr. Adv. with Mr M.L. Yadav, Adv.
For the Respondent : Mr Pawan Narang, Adv.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MS JUSTICE VEENA BIRBAL
JUDGMENT
BADAR DURREZ AHMED, J
1. This appeal is directed against the judgment dated 11.09.1997 delivered by the learned Additional Sessions Judge, Shahdara, Delhi, in Sessions case No. 76/1996, arising out of FIR No. 78/1993, registered on 24.07.1993 under Section 302 of the Indian Penal Code (IPC) and Section 27 of the Arms Act, 1959. The said FIR was registered at police station Geeta Colony, Delhi. This appeal is also directed against the order on sentence CRL. A. No. 366/1997 Page 1 of 24 passed by the learned Additional Sessions Judge on 15.09.1997 whereby the appellant was sentenced to rigorous imprisonment for life for the offence punishable under Section 302 IPC. A fine of Rs. 1000/- was also imposed and in default of the payment of the said fine, it was directed that the appellant would undergo rigorous imprisonment for one month. Insofar as the offence under Section 27 of the Arms Act, 1959 is concerned, the appellant was sentenced to rigorous imprisonment for a period of two years along with a fine of Rs. 500/-. In default of the payment of said fine, the appellant was directed to undergo rigorous imprisonment for a further period of 15 days. The sentences were directed to run concurrently.
2. The charges were framed by the learned Additional Sessions Judge on 07.12.1993. The appellant was charged as under:-
"CHARGE SC No. 211/93 I, P.K. Dham, Addl. Sessions Judge, Shahdara, do hereby charge you Madan Lal as under:-
That on 27.4.93, at about 3.30 PM, in house No. 15/107, Ground floor, Geeta Colony, Delhi, you committed the murder of Smt. Krishna by causing her death and thereby committed an office punishable u/s 302 IPC and within my cognizance.
Secondly, on the above said date, time and place, you were found in un-lawful possession of a dagger with intent to CRL. A. No. 366/1997 Page 2 of 24 use the same for some unlawful purpose and the same was recovered at your instance on 25.5.93 and thereby committed an offence punishable u/s 27 of Arms Act and within my cognizance.
And I hereby direct that you be tried by this court under the aforesaid offences.
The charge is read over and explained to the accused and is questioned as under:-
Q. Do you plead guilty or claim trial? Ans. I plead not guilty.
ASJ, Shahdara.
7/12/1993."
3. The prosecution case is that on 27.04.1993, D.D. No. 9A (Ex. PW- 11/A) was recorded at police station Geeta Colony wherein it was stated that wireless information had been received at 03.55 p.m. that in block No.13 near Krishana Mandir, a 'brother-in-law' had stabbed his sister-in-law with a knife "devar ne bhabhi ko chaku mar diya hai". On receiving the said information, PW-17 SI Satpal Pawar along with constable Satish Kumar went to block No.13, Geeta Coony but found that no such incident had taken place in block 13. However, they were told that an incident of stabbing had taken place in block No.15. Consequently, they reached house No. 15/107, Geeta Colony, where they learnt that the deceased (Smt. Krishna) had been CRL. A. No. 366/1997 Page 3 of 24 removed to S.D.N. Hospital in a PCR Van. It is further the case of the prosecution that PW-17 SI Satpal Pawar along with the said constable went to S.D.N. hospital and collected the MLC (Ex. PW-10/A) of Smt. Krishna. It may be pointed out at this juncture itself that the MLC indicates that Smt. Krishan was brought to the hospital by Head Constable Tej Ram (PW-13) who was in-charge of the PCR Van. The MLC indicates that Smt. Krishna was brought dead with the alleged history of stabbing and that the time of arrival at the hospital was 04.30 p.m. on 27.04.1993.
4. The prosecution case is also that Smt. Krishan's husband Pooran Chand was present in the hospital and he gave a statement (Ex.PW-17/A) in which he is alleged to have named his brother Madan Lal @ Maddi (appellant herein) as the assailant of his deceased wife Smt. Krishna. The prosecution case further is that after the statement of PW-8 Pooran Chand was recorded, the rukka was sent to the police station through constable Satish Kumar for registration of the case. It is further the case of the prosecution that PW-17 SI Satpal Pawar went to the police station along with PW-8 Pooran Chand and also took the dead body of Smt. Krishna to the police station from the hospital. Dead body was left at the police station and he along with PW-8 Pooran Chand went to the spot. There, he found that CRL. A. No. 366/1997 Page 4 of 24 SHO R.N. Vashisht was already there on the basis of D.D No. 11A which was recorded at police station Geeta Colony regarding the arrival of Smt. Krishna in the hospital as having been brought dead. A copy of the said D.D No. 11/A is exhibited as Ex. 19A.
5. The crime team and photographer had also arrived in the presence of PW-17 SI Satpal Pawar. Photographs were taken. The site plan (Ex. PW- 18/B) of the place of the incident was prepared on the pointing of PW-8 Pooran Chand. Blood from the ground floor of house No. 15/107, Geeta Colony, was seized and sealed with the seal of 'RNV' vide memo Ex. PW- 8/A to PW-8/B. Earth control sample was also seized and vide memo PW- 8/C and PW-8/D in the presence of PW-8 Pooran Chand who had also signed the memos. A blood stained bed sheet which was lying on the bed was also seized vide memo Ex. PW-8/E. The bed sheet itself was exhibited as Ex. PW-17/A. At the spot, it is alleged that, apart from PW-8 Pooran Chand, his other brother (not the accused Madan Lal) was also present. It is alleged that the statement of Neelam, who is another bhabhi (sister-in-law) of the appellant Madan Lal and who also used to reside in the same house, was also recorded. It is, further the case of the prosecution that a small child by the name of Sunny @ Bharat Bhushan (PW-1) who is the son of PW-8 CRL. A. No. 366/1997 Page 5 of 24 Pooran Chand and the deceased Smt. Krishana was present at the place of occurrence at about 04.40 p.m. His statement was not recorded by the police, as according to the prosecution, the child was in a nervous and frightened condition. It is also the case of the prosecution that PW-9 Kishore Kumar a relative of the deceased Smt. Krishna was also there at the place of occurrence and his statement was also not recorded as, according to the prosecution, he was also not in a position to make any statement as he was in a disturbed state of mind.
6. Thereafter, the investigation proceeded in the direction of searching for the appellant Madan Lal. However, Madan Lal was not to be found. The inquest proceeding was completed. The brief facts (PW- 19/H) were prepared along with the inquest. Thereafter, the Investigating Officer (I.O) PW-19 SHO R.N. Vashisht sent the dead body along with the inquest papers for the conduct of the post-mortem examination. The same was conducted by PW-5 Dr. L.T. Ramani and his report is Ex.PW-5A.
7. The gauze containing blood of the deceased Smt. Krishna was collected as also her blood stained clothes. The CFSL report (Ex. PW-19/11 to PW-19/13) was obtained subsequently.
CRL. A. No. 366/1997 Page 6 of 24
8. It is also the prosecution case that on 24.05.1993 at about 08.30 p.m. when PW-19 SHO R.N. Vashisht was about to leave the station for investigation of the case, PW-9 Kishore Kumar arrived at the said police station and he joined him in the investigation of the case. Thereafter, he along with ASI Kanchan Lal and PW-9 Kishore Kumar proceeded from police station Geeta Colony in search of the appellant Madan Lal. When they reached Hanuman Mandir Jamuna Bazar, on the pointing of PW-9 Kishore Kumar, the appellant Madan Lal was arrested near the Hanuman Mandir. His search was conducted vide memo Ex. PW-9/A and on interrogation, the appellant Madan Lal is alleged to have made a disclosure statement in which he allegedly revealed that he had thrown the dagger in the bushes of Yamuna Pushta and that he had thrown his blood stained clothes near the river Yamuna. It is further alleged that the appellant Madan Lal took them to the bushes near Yamuna Pushta and got a dagger Ex. P-1 recovered from the bushes. The sketch of the dagger was prepared and it was exhibited as Ex. PW-9/B. The said dagger was seized vide memo Ex. PW-9/C. The alleged blood stained shirt of the appellant Madan Lal was however not recovered.
CRL. A. No. 366/1997 Page 7 of 24
9. It may be mentioned at this junction that as per the prosecution the statement of PW-9 Kishore Kumar was recorded under section 161 Cr. P.C. on 29.04.1993 and that of PW-1 Bharat Bhushan @ Sunny was recorded on 08.05.1993. Furthermore, PW-1 Bharat Bhushan @ Sunny's statement was also recorded under section 164 Cr.P.C. on 19.05.1993. Thereafter, the investigation was completed and the charge sheet was filed in court. As already indicated above, the charges were framed on 07.12.1993 under Section 302 IPC and under Section 27 of the Arms Act, 1959. The appellant pleaded not guilty and claimed trial. In the trial, the prosecution examined as many as 20 witnesses. Thereafter, the statement of the appellant Madan Lal was recorded under Section 313 Cr.P.C. The defence produced 4 witnesses.
10. Consequent upon the conclusion of the trial and upon hearing final arguments on the part of the prosecution as well as the defence, the learned Additional Sessions Judge, by virtue of the impugned judgment, found the appellant to be guilty of the offence punishable under Section 302 IPC as also of the offence under Section 27 of the Arms Act. As pointed above, by an order dated 15.09.1997 the learned Additional Session Judge pronounced the aforesaid sentences. The appellant is in appeal before us. CRL. A. No. 366/1997 Page 8 of 24
11. The learned counsel for the appellant (Madan Lal) submitted that the entire case of the prosecution hinges upon the testimonies of PW-1 Bharat Bhushan @ Sunny and PW-9 Kishore Kumar. It was contended by the learned counsel for the appellant that PW-1 Bharat Bhushan @ Sunny was a small boy between the age of 5 and 6 years at the time of the incident. According to him, the said witness was impressionable and had been tutored by his maternal uncle and members of his deceased mother's family as also by the police and therefore his testimony could not be relied upon. He further contended that the testimony of PW-1 Bharat Bhushan @ Sunny has to be looked at with suspicion because of the fact that his statement under Section 161 Cr.P.C. was recorded on 08.05.1993, that is, 11 days after the alleged incident. Even his statement under Section 164 Cr.P.C. was recorded on 19.05.1993 which would be 22 days after the alleged incident. Since PW-1 Bharat Bhushan @ Sunny was the alleged solitary eye witness, there was no reason for recording his statements under Sections 161 and 164 Cr.P.C. after such inordinate and unexplained delay. The said PW-1 Bharat Bhushan @ Sunny was not an outsider but was a family member and was resident of the very same house in which the said alleged incident took place. According to the learned counsel for the appellant, the very fact that the CRL. A. No. 366/1997 Page 9 of 24 statement of PW-1 Bharat Bhushan @ Sunny was not recorded immediately or even shortly after the alleged incident is an indication that PW-1 Bharat Bhushan @ Sunny was not an eye witness at all but has been set up subsequently by the prosecution. It was also submitted by the learned counsel for the appellant that the testimony of DW-1 Ravinder Kumar Dikshit who is the headmaster of the MCD school, block No.13, Geeta Colony, Delhi, ought to be taken into consideration. He submitted that the said DW-1 Ravinder Kumar Dikshit is the headmaster of the school which was attended by PW-1 Bharat Bhushan @ Sunny on the date of alleged occurrence. He had produced the register of attendance (Ex. DW-1A) which indicated that PW-1 Bharat Bhushan @ Sunny had attended the school on 27.04.1993 and was present in both shifts. The afternoon shift being from 1 p.m. to 6 p.m. Thus, according to the learned counsel for the appellant, PW- 1 Bharat Bhushan @ Sunny could not have been an eye witness inasmuch as the alleged incident took place around 3.30 p.m. when PW-1 Bharat Bhushan @ Sunny was in school and not at home. He also submitted that the statement of PW-1 Bharat Bhushan @ Sunny made under Section 164 Cr.P.C. before the Magistrate on 19.05.1993 is also at variance in material particulars with the testimony of the said witness in court in the course of CRL. A. No. 366/1997 Page 10 of 24 trial. He submitted that though the statement under Section 164 Cr.P.C. cannot be regarded as substantive evidence, it can certainly be used for the purposes of corroboration as well as contradiction of the witness who made that statement. For these reasons, the learned counsel for the appellant submitted that the testimony of PW-1 Bharat Bhushan @ Sunny cannot be relied upon at all.
12. Insofar as PW-9 Kishore Kumar is concerned, the learned counsel for the appellant submitted that this witness is, first of all, not an eye witness at all inasmuch all that he has stated is that he saw the appellant coming from the house with a dagger in his hand toward Sethi Medical Store and that the dagger was drenched in blood. His shirt too was drenched in blood. The learned counsel submitted that there are several contradictions between the testimony of PW-9 Kishore Kumar and that of PW-1 Bharat Bhushan @ Sunny and therefore their testimonies do not corroborate each other. As an instance, the learned counsel for the appellant pointed out that while PW-1 PW-1 Bharat Bhushan @ Sunny stated that Madan Lal dropped the knife in the room where his mother was stabbed, PW-9 Kishore Kumar stated that he saw Madan Lal coming from the house with a blood stained dagger in his hand.
CRL. A. No. 366/1997 Page 11 of 24
13. It was also pointed out by the learned counsel for the appellant that the conduct of PW-9 Kishore Kumar was unnatural inasmuch as although he is stated to have lifted the deceased Smt. Krishna from the bed where she was lying his clothes were not blood stained at all. It is also pointed out that PW- 9 Kishore Kumar made no effort to accompany the injured to hospital. Furthermore, PW-9 Kishore Kumar's statement under Section 161 Cr.P.C. was also allegedly written after two days, that is, on 29.04.1993. This delay in recording his statement also creates a great deal of suspicion with regard to his testimony.
14. We may point out at this juncture that PW-8 Pooran Chand who is the husband of the deceased Smt Krishna and the father of PW-1 Bharat Bhushan @ Sunny turned hostile and did not support the prosecution case.
15. On the basis of the above submissions, the learned counsel for the appellant contended that this was a fit case for setting aside the order of conviction and the order on the point of sentence.
16. On the other hand, the learned counsel for the State narrated the entire sequence of events beginning from D.D. No. 9A (Ex. PW-11/A) and D.D. No. 11A (Ex. PW-19A) till the filing of the charge sheet and submitted that there was no question of the prosecution cooking up any case against the CRL. A. No. 366/1997 Page 12 of 24 appellant. The case for the prosecution in the very first instance was that the appellant Madan Lal was the assailant of Smt. Krishna and that has not changed through time. It was, further, contended that PW-1 Bharat Bhushan @ Sunny, although he is a small boy, ought to be believed as there is no circumstance which would show that his testimony, in material particulars, is false. A child witness, according to the learned counsel for the State, is a truthful witness and there is no reason for the child to falsely implicate the appellant. Furthermore, according to the learned counsel for the State, the testimony of PW-9 Kishore Kumar clearly corroborates the testimony of PW-1 Bharat Bhushan @ Sunny. He also submitted that the blood group of the blood found on the dagger (Ex. P-1) was the same as the blood group (A) of the deceased Smt. Krishna. Therefore, the fact that the recovery of the dagger had been made at the instance of the appellant on 24.05.1993 coupled with the fact that the blood group of the blood found on the dagger match with the blood group of the deceased Smt. Krishna was clinching evidence that it was this dagger which had been used for the commission of the crime. This piece of evidence clearly linked the appellant with the murder of Smt. Krishna. It was further contended by the learned counsel for the State that the testimony of DW-1 Ravinder Kumar Dikshit is of no consequence as the CRL. A. No. 366/1997 Page 13 of 24 so-called school register has not been proved in accordance with law. He submitted that mere production and marking of the documents as exhibits by the court cannot be regarded as due proof of its contents. Reliance was placed on the Supreme Court decision in the case of Narmada Devi Gupta v. Birendra Kumar Jaiswal: 2003 (8) SCC 745. He submitted that the teacher/person who filled in the register had not been produced and therefore the photocopy of the school register cannot be regarded as evidence. Consequently, it cannot be said that PW-1 Bharat Bhushan @ Sunny was in school at the time of the alleged incident. He, therefore, concluded by submitting that based on the testimonies of PW-1 Bharat Bhushan @ Sunny and PW-9 Kishore Kumar, a clear case has been made out against the appellant and, therefore, the impugned judgment and order on the point of sentence ought not to be interfered with.
17. First of all, it would be instructive if we examine the testimony of PW-5 Dr. L.T. Ramani, with which neither party has any objection. PW-5 Dr. L.T. Ramani is the Doctor who conducted the post-mortem examination and submitted his report Ex. PW-P5/A. In his testimony PW-5 Dr. L.T. Ramani has stated that there was as many as 13 injuries found on the dead body of Smt. Krishna. The said 13 external injuries were as under:- CRL. A. No. 366/1997 Page 14 of 24
"EXTERNAL INJURIES i. One tiny puncture wound on the right cheek bone area trailing into linear scratch abrasion 3" long.
ii. An incised wound 2 cms. x 1 cms. x 1 on the right side of the neck placed obliquely.
iii. Incised wound 2.5 cms. x 1 cms. x ? vertically present on the right postero lateral aspect of neck. Lower end was acutely cut.
iv. Small incised wound 0.3 cms. x 1.5 cms. x ? on the left breast near areolar margin.
v. Incised wound 2.5 cms. x 1.5 cms. x ? transverse the antero-lateral surface of left side chest. Outer end was acutely cut.
vi. An incised wound 1.7 cms. x 1 cms. x ? transversely placed on the left side of waist.
vii. Incised wound 2 cms. x 1 cms. x muscle deep on the front of the left arm middle.
viii. Small incised wound 0.3 cms. x skin deep on the posterior axillary fold.
ix. Incised wound 2 cms. x 1 cms. x ? transversely placed on left posterior side chest wall, 2 cms. behind the posteric axillary fold.
x. Incised wound 2.5 cms. x 1 cms. x ? obliquely placed on the lower left back of the chest wound appears spindle shaped.CRL. A. No. 366/1997 Page 15 of 24
xi. Incised would 2.5 cms. x 1.5 cms. x ? transversed on left renal angle. Anterior end was acutely cut.
xii. An incised wound 1 cms. x skin deep on the left thigh 4 cms. below the anterior iliac spine.
xiii. Incised wound 3 cms. x 1 cms. x obliquely placed on the upper part of left thigh, posterior lateral surface. Upper end was acutely cut."
On internal examination he found the following:-
"INTERNAL EXAMINATION:
Scalp, skull bones were normal. Brain was pale, neck tissues showed blood clot in the deeper layers on the right side. Right carotid artery (external) was found cut on the right side beneath external injury No.3.
Injury No.4 on the left breast was found to have cut lower margin of third rib left side and upper lobe of left lung 0.5 cms. deep. Injury No. 5 had entered left chest through 8th I.C. space, and cuts diaphragm and anterior surface of the stomach.
Injury No.9 had entered left chest through 7th I.C. space and had cut lower lobe of left lung 1 cms. deep. Total depth of this wound was 6 cms. from body surface. Left lung was partially collapsed and left chest cavity was full of blood. Injury No.6 had entered the abdomen below the 12th rib and had cut lower pole of left kidney. Injury No.10 had entered posterior abdominal wall."CRL. A. No. 366/1997 Page 16 of 24
His opinion on the basis of the post-mortem examination was as follows:-
"All injuries were antemortem, caused by sharp edged weapon. Injury No. 3, 4, 5, 6 & 9 were individually sufficient to cause death in the ordinary course of nature. Death was due to shock and haemorrhage consequent to injuries. Time since death was 20 hrs. Clothes and sample of blood were preserved, sealed and handed over to police along with sample seal. My report is Ex. PW-5/A."
In his cross-examination he stated:-
"I have seen the inquest papers, & there is MLC of Krishna Devi on the file, which bears my initial and was a part of inquest papers and the same is Ex. PW-5/B. I cannot say if deceased would have died instantaneously after sustaining these injuries. I had not seen the weapon of offence."
18. From the above it is apparent that in the course of his cross examination PW-5 Dr. L.T. Ramani had stated that he had not seen the alleged weapon of offence. However, PW-5 Dr. L.T. Ramani was re-called for further examination when he stated that he had seen the dagger (Ex. P-1) and that he was of the opinion that the injuries recorded by him in the post- mortem report Ex. PW-5/A were possible with the said dagger (Ex. P-1). In cross examination, however, he admitted that the dagger Ex. P-1 had a sharp edge on both sides. He also admitted that he has described some of the CRL. A. No. 366/1997 Page 17 of 24 injuries as having one edge as being sharp whereas no such observation had been recorded in respect of certain other injuries. He also admitted that a weapon having a single sharp edge will normally cause an incised wound showing one edge being more acutely cut. Finally, he admitted in cross examination that he could not exclude the possibility of the injuries having resulted from the use of this dagger (Ex. P-1) and some of them with some other single sharp-edged weapon.
19. Two important points emerge from the evidence of PW-5 Dr. L.T. Ramani. The first being that there were as many as 13 external injuries inflicted upon Smt. Krishna. The second important point is that some of the injuries, even according to Dr L.T. Ramani, could have been caused by a double edged weapon like the dagger (Ex.P-1) and other injuries could have been caused by some other single sharp-edged weapon. This fact introduces an element of a two-weapons theory. Meaning thereby that there could have been more than one assailant. The prosecution case, however, is that the appellant was the sole assailant. If that were to be so then how do we explain the injuries caused by the single-edged weapon?
20. We now come to the testimony of PW-1 Bharat Bhushan @ Sunny. According to this witness, who was about between 5 & 6 years old at the CRL. A. No. 366/1997 Page 18 of 24 time of incident and 6 years old at the time his testimony was recorded on 27.01.1994, the appellant Madan Lal gave "two knife blows to his mother". The knife blows, according to this witness, were given-one on the neck and one on the abdomen. He is stated to have seen this incident through the window when he was standing outside the room. He stated that his father (Pooran Chand) was present in the house at that time. His grandmother was also present in the house and that his mother (Smt. Krishna) was sleeping on the bed at the time of occurrence. Importantly, PW-1 Bharat Bhushan @ Sunny also states in his examination-in-chief that after the assault, Maddi (the appellant herein) went out leaving the knife in the room. In the course of his cross examination this witness stated that PW-9 Kishore Kumar had not come after the death of his mother. He also admitted that he had made a statement before the Magistrate. He also stated that after his mother was stabbed he remained in the house and that he did not weep or cry and that Sunder Shyam, his maternal uncle, has taken him to his house in the evening. He also stated that although everyone in the family wept on the death of his mother but he did not weep.
21. Since the learned counsel for the appellant had referred to the statement of PW-1 Bharat Bhushan @ Sunny recorded under Section 164 Cr. CRL. A. No. 366/1997 Page 19 of 24 P.C. in order to contradict his testimony in court, it would be necessary for us to have a look at that statement (Ex. PW-12A). In the said statement PW- 1 Bharat Bhushan @ Sunny has stated that his mother had died 6 days ago. He further stated that his mother was killed by Maddi uncle (meaning the appellant herein). He further stated that he had killed her in the evening. He also stated that he knows how to see the time in the watch and that the incident was of 9.30. It was night at that time. He further stated that Maddi has assaulted his mother with a knife on her neck as well as her waist. He further stated that Maddi slapped him twice. At that time his mother was sleeping in the room. He further stated that he was playing ludo with his brother Monty. He stated that Monty was 5 years old and he was 6 years old. He further stated that when the appellant entered the room, there was nobody except him (PW-1 Bharat Bhushan @ Sunny) and Monty. He also stated that Maddi also slapped Monty thrice. And that the two of them started crying. Thereafter, Maddi ran away and left the knife next to his mother. He said that when Maddi assaulted his mother, she shrieked. He further stated that thereafter he went alone to the shop and called his father from there. His shop was nearby and he had toffees in his shop. However, at the shop he did not tell his father that his mother had been assaulted. CRL. A. No. 366/1997 Page 20 of 24 Monty remained in the house. He further stated that Kishore 'uncle' and the police persons had told him to go inside and say that Maddi had killed his mother. He reiterated after sometime that Maddi had stabbed his mother with a knife. He also stated that Kishore 'uncle' had also told him on that day (the day on which the statement was recorded) that Maddi had stabbed his mother.
22. From the above statement under Section 164 Cr.P.C., it is apparent that the incident allegedly took place at about 9.30 p.m. whereas it is a fact that Smt. Krishna had been brought dead to the hospital at 4.30 p.m. The statement also indicates that PW-1 Bharat Bhushan @ Sunny had been slapped twice by the appellant Madan Lal whereas in his testimony before court this has not been stated. The presence of the younger brother Monty has not been indicated in his testimony before court. It has not been stated that immediately after the incident he went to his father's shop to call him. Interestingly it is stated in his statement under Section 164 Cr.P.C. that he had been told by Kishore 'uncle' as well as by the police persons that he had to go inside and state that it was Maddi who had killed his mother. This is clearly indicative of tutoring.
CRL. A. No. 366/1997 Page 21 of 24
23. It is, therefore, clear that the statement under Section 164 Cr.P.C. which was made on 19.05.1993, although it cannot be treated as substantive evidence can certainly be used for contradiction or corroboration of the testimony of PW-1 Bharat Bhushan @ Sunny (see Mamand vs. Emperor AIR 1946 PC 45 and Ram Kishan Singh v. Harmeet Kaur & Anr: (1972) 3 SCC 280). In the present case we find that the Section 164 Cr.P.C. statement contradicts the testimony of PW-1 Bharat Bhushan @ Sunny. Furthermore, it indicates that there was an element of tutoring. Therefore, even if we disregard the evidence of DW-1 Ravinder Kumar Dikshit with regard to the presence of PW-1 Bharat Bhushan @ Sunny in school at the time of incident, the testimony of PW-1 Bharat Bhushan @ Sunny before court certainly gets dented by the contradiction with the statement under Section 164 Cr. P.C. Coupled with this is the fact that the PW-1 Bharat Bhushan @ Sunny is a child of a tender age and is clearly impressionable. Unless there is corroboration, in the facts of this case, it would be difficult to return a finding of conviction solely on the basis of his testimony. We also note the fact that while PW-1 Bharat Bhushan @ Sunny has categorically stated that the appellant had stabbed his mother twice-once in the neck and once in the waist-the medical evidence indicates that she had been inflicted CRL. A. No. 366/1997 Page 22 of 24 13 external injuries. The possibility of the said injuries having been caused by two separate weapons cannot also be ruled out. Therefore, in our view it would be dangerous to place complete reliance on the testimony of PW-1 Bharat Bhushan @ Sunny. He is the alleged sole eye witness. The corroboration that could be sought from PW-9 Kishore Kumar is also not forthcoming inasmuch as while PW-1 Bharat Bhushan @ Sunny states that the appellant dropped the knife in the room, PW-9 Kishore Kumar categorically states that he saw Madan Lal running with a blood stained dagger in his hand. This is quite apart from the fact that although PW-9 Kishore Kumar stated that he had helped in lifting Smt Krishna onto the PCR Van there was no blood stain on his clothes. This is all the more intriguing inasmuch as Smt. Krishna had 13 incised injuries on her body and was profusely bleeding. Apart from this PW-9 Kishore Kumar made no effort to accompany Smt. Krishna to hospital particularly as there was no other adult member of the family present there. Furthermore, even PW-9 Kishore Kumar's statement under section 161 Cr.P.C. was recorded on 29.04.1993, after two days. The explanation given by the prosecution that he was not in a fit state of mind is far from being believable. Consequently, we cannot place reliance on the testimony of PW-9 Kishore Kumar. CRL. A. No. 366/1997 Page 23 of 24
24. From the above discussion it is clear that there are serious doubts in our minds with regard to the prosecution version of the case. As such, the benefit would have to go to the appellant.
25. Consequently, the impugned judgment and order on sentence are set aside. The bail bond furnished by the appellant is cancelled and the sureties stand discharged.
26. The appeal is allowed.
BADAR DURREZ AHMED, J VEENA BIRBAL, J NOVEMBER 30, 2012 kb CRL. A. No. 366/1997 Page 24 of 24