* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 9th May, 2014
+ CRL.A.544/1998
INDERJEET SINGH & Ors. ..... Appellant
Through: Mr. Sheikh Israr Ahmad and
Mr. Aman Khan, Advocates
versus
STATE ..... Respondent
Through: Mr. Sunil Sharma, APP for the
State with Mr. Rakesh Sharma,
Advocate
%
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT
: SUNITA GUPTA, J.
1. Challenge in this appeal is to the judgment and order on sentence dated 28th November, 1998 and 30th November, 1998 respectively passed by the learned Additional Sessions Judge, New Delhi in Sessions Case Nos.42/91 and 48/91 arising out of FIR No.225/90, PS Kotla Mubarakpur whereby the appellants were convicted u/s 302 IPC r/w Section 34 IPC and accused Inderjeet Singh was also held guilty and convicted under Section 27 of the Arms Act Crl. A. No. 544/1998 Page 1 of 49 and was sentenced to undergo imprisonment for life and a fine of Rs.5000/- each, in default of payment, further to undergo SI for 3 months. Accused Inderjeet Singh @ Inder was also sentenced to RI for one year under Section 27 of Arms Act and this sentence was to run concurrently with the sentence already awarded to him u/s 302 IPC.
2. The prosecution case in brief, as made out from the police report sent under Section 173 Cr.P.C. is that on 3.8.1990 on receipt of DD No. 18-A, SI Joginder Singh along with SI Gian Singh, Constable Jai Singh and Constable Narender Pal reached at Sukhdev Market near street which goes to Qumayun Restaurant, where in a street near H.No. H-801 a crowd was gathered and they came to know that injured had been removed to AIIMS in a PCR vehicle. Leaving Constable Narender Pal at the spot, SI Joginder Singh along with other police officials reached at AIIMS, where he came to know that injured Devinder Singh @ Ladi was declared as "brought dead". Parminder Singh and Amar Singh, brother of the deceased were found present in the hospital. Parminder Singh gave his statement to SI Joginder Singh to the effect that he has six brothers and his three Crl. A. No. 544/1998 Page 2 of 49 brothers, namely, Harinder Singh, Ravinder Singh and Rajinder Singh reside with his mother Smt. Prakash Wati at H.No.826/5 Arjun Nagar. His eldest brother Amar Singh resides at H.No.15/88, Geeta Colony along with his family and he along with his family resides at 53/F D12 Area, Sector 4, Bangla Sahib Marg, New Delhi. His sister Saroj resides at 98-A Baba Kharak Singh Marg along with her family. About three years ago, one Gujjar namely Khazan Singh had been murdered and his brother Devinder Singh @ Ladi has been arrested for his murder and a case was pending against Devinder Singh in the Court. Devinder Singh was released on interim bail from the Court and he used to reside with his sister Saroj. On 3.8.1990 Devinder Singh came to his house at 826/5, Arjun Nagar to meet his family and his brother Amar Singh also reached there and they had their meal together. At about 10:00 PM, he along with his brothers Devinder Singh and Amar Singh left the house for going to their respective houses and they were going on foot towards Taxi Stand, Sukhdev Market. He and Amar Singh were little ahead of Devinder Singh. At about 10:10 PM, when they reached near the corner of Sukhdev Market, Devinder Singh raised an alarm "Bachao-Bachao" and when Crl. A. No. 544/1998 Page 3 of 49 they turned back, they saw that Amar Singh, S/o Likhi Chand and Shiv Charan, S/o Pooran Chand were giving hockey blows to Devinder Singh and Inder, S/o Khazan Singh was giving knife blow to Devinder Singh. His brother Devinder Singh fell on the ground and Inder gave him many knife blows. When they tried to rescue their brother, all the above said three persons brandished their knife and hockeys and said that whosoever will come to save Devinder Singh, they will also kill him and all of them ran towards Bhisham Pitamah Marg. His brother Devinder Singh became unconscious. Many persons including Sujan Singh, S/o Ram Singh collected there. After sometime, PCR van came and removed Devinder Singh at AIIMS, where he was declared dead by the Doctor. On this statement, a case was got registered and the investigation was conducted by Inspector Richpal Singh. During investigation, Inspector got the spot photographed, prepared site plan, seized one broken piece of hockey, one pair of dirty white shoes, one steel strip, sample blood, blood stained earth, sample earth from the spot. Inspector also seized the blood stained clothes of Amar Singh and Parminder Singh, got conducted the post mortem on the dead body of deceased, recorded Crl. A. No. 544/1998 Page 4 of 49 the statement of witnesses and collected the post mortem report. After post mortem, dead body was handed over to the legal heirs of the deceased. Inspector arrested the accused persons and recorded the disclosure statement of accused Inderjeet Singh @ Inder, who in pursuance of his disclosure statement, got recovered the knife, which was used to commit the murder of Devinder Singh. Inspector also recorded the disclosure statements of accused Amar Singh and Shiv Charan, who got recovered the hockeys, used in commission of offence. Inspector seized the knife and hockeys and sealed them separately in pulandas with the seal of JS. Exhibits were sent to CFSL. After completion of investigation, challan under section 302/506/34 IPC was filed in the Court of concerned Metropolitan Magistrate, who committed this case to the Court of Sessions being exclusively triable by it as such. All the accused persons pleaded not guilty to the charge framed against them under section 302/506/34 IPC and claimed trial. Accused Inderjeet Singh was separately charged for an offence under Section 25 and 27 of Arms Act.
3. In order to substantiate its case, prosecution had examined 27 witnesses in all. All the incriminating evidence was put to the Crl. A. No. 544/1998 Page 5 of 49 accused persons while recording their statements under Section 313 Cr.P.C. wherein they denied the case of prosecution.
4. The Trial Court came to the conclusion that the prosecution had brought home the guilt of the accused persons and accordingly convicted them for murder punishable under Section 302 read with Section 34 IPC and sentenced as mentioned above. Aggrieved by the judgment and order on sentence passed by the Trial Court, the present appeal was filed by the appellants, namely, Inderjeet Singh, Amar Singh and Shiv Charan. However, during the pendency of the appeal, appellant Shiv Charan, expired on 12th April, 2008 as per the death certificate filed by the State along with the status report. As such, the appeal stands abated qua him.
5. We have heard learned counsel for the parties at considerable length who have taken us though the evidence on record.
6. Appearing for the appellants, Mr. Sheikh Israr Ahmad, Advocate submitted that there was unexplained delay not only in the lodging of the First Information Report but also in despatching a copy of the same to the jurisdictional magistrate. In the absence of any cogent and acceptable explanation for the delay, the prosecution case Crl. A. No. 544/1998 Page 6 of 49 was rendered doubtful. Reliance was placed on Satguru Singh vs. State of Punjab, AIR 1995 SC 2449. It was further contended that although prosecution case is alleged to be based on eye witness account of the incident, however, Amar Singh PW11, brother of the deceased, has not supported the prosecution case and it is not safe to rely upon the solitary eye witness Parminder Singh PW1. It is further contended that the conduct of Parminder Singh PW1 is highly unnatural because he made no efforts to take his brother to the clinic of Doctor Bhardwaj, which was just nearby. From the evidence of Amar Singh PW11, it is clear that there was darkness at the time of this incident and the accused persons have been falsely implicated. It is also contended that another eye witness Sujan Singh PW5 has not supported the prosecution case at all. Learned defence counsel has drawn our attention to the MLC of the deceased Ex.PW17/A to show that first the name of the injured is written as unknown and thereafter Devinder has been added and in the column of name of relation, the name of H.C. Dharam Singh of PCR is mentioned and later on "and brothers" is added, which shows that Parminder PW1 has not taken his brother Devinder to the hospital. It is contended that had Crl. A. No. 544/1998 Page 7 of 49 Parminder taken his brother to the hospital, the name of Parminder would have been mentioned in the column of relations, which shows that he was not present at the time of the incident. Reliance was placed on Din Dayal v. Raj Kumar @ Raju & Ors., AIR 1999 SC 537 and State of Punjab v. Sucha Singh & Ors., 2003 (1) JCC 405. It was also submitted that the solitary eye witness is a close relation of deceased and it is not safe to rely upon his testimony as it is not corroborated.
7. It was further submitted that father of the appellant Inderjeet Singh was murdered and Devinder (since deceased) was facing trial for the murder of father of the appellant. He had come on interim bail. As such, since the victim was accused of murdering the father of the appellant, as such, the brothers of the deceased had motive to falsely implicate the appellants in this case.
8. Arrest of the accused persons and subsequent recovery at their instance has also been challenged on the ground that there is no independent witness to the recovery and police officials are giving different versions. Reliance was placed on Salim Akhtar @ Mota v. State of U.P, 2003(2) Crimes 789 and State of Punjab v. Gurnam Crl. A. No. 544/1998 Page 8 of 49 Singh, AIR 1984(1) SC 1799.
9. Moreover, the knife was blunt from tip, as such, the injuries as mentioned in the post mortem report are not possible by the knife. Even, this knife was not shown to the doctor to seek his opinion whether injuries were possible by said type of knife or not. Recovery of hockey at the instance of remaining two appellants has not been believed by the learned Trial Court. As such, prosecution has failed to bring home the guilt of the appellant beyond shadow of doubt. As such, appellants are entitled to be acquitted of offence alleged against them.
10. Rebutting the submissions of learned counsel for the appellants, Sh. Sunil Sharma, learned Additional Public Prosecutor for the State submitted that prosecution case is based on eye witness account of the incident. PW1 Parminder Singh is the author of the First Information Report and has given the same version as given by him in the First Information Report. This witness was subjected to lengthy cross-examination but nothing material could be elicited to discredit his testimony. In fact, presence of the witness at the spot has not been challenged in cross-examination. The mere fact that DD No. Crl. A. No. 544/1998 Page 9 of 49 493 or DD No. 18A were recorded on the basis of information given by some unknown person regarding a person lying in the injured condition in front of Qumayun Hotel, Defence Colony does not mean that the brothers of the injured were not present at the spot. In fact both these witnesses accompanied the deceased to hospital in PCR Van and there is no challenge to the testimony of Head Constable Satpal, Head Constable Dharam Singh and SI Joginder Singh that the deceased was brought to the hospital in PCR van accompanied by brothers of the deceased. As regards MLC, it was submitted that it has come on record that the brothers of the deceased were in the other room and the injured was taken inside the hospital by the police official of PCR and, therefore, initially he could not give the name of the injured, however, when called upon to give the name of the injured, they gave his name, and thereafter, in the MLC name of the injured and in the column of brought by "and brothers" were mentioned. Although, it is alleged that in the MLC subsequent additions were made, however, even no such suggestion was given to the concerned doctor who prepared the MLC of the injured. Moreover, testimony of Parminder Singh finds substantial Crl. A. No. 544/1998 Page 10 of 49 corroboration from Amar Singh who has supported the case of prosecution as regards the actual incident. He only turned hostile on the point of identity of the accused. Even, in regard to the identity, he simply deposed that he could not say if his brother was killed by the accused or not. He has not denied their presence or assaulting his brother. Furthermore, after the arrest of the accused on the same day, weapon of offence, i.e., knife as well as the hockey were recovered. Refuting the submission of learned counsel for the appellant that since knife was blunt from tip, as such, injuries were not possible by this knife, it was submitted that learned Trial Court had the occasion to see the knife and it has been observed in the judgment that the injuries were possible by this knife. Reference was also made to the FSL report for submitting that the clothes of the deceased were having cut marks and as per report the same could have been caused by the knife which was sent to FSL. Clothes of brothers of the deceased were stained with blood. Same were sent to FSL and human blood was found on the same. Clothes of the accused were also sent which were also found to be having human blood. No explanation has been furnished by the accused as to how their clothes were Crl. A. No. 544/1998 Page 11 of 49 stained with blood. As regards delay in lodging the First Information Report, it was submitted that there is no delay in lodging the First Information Report as the first endeavour of the brothers of the deceased was to provide him medical aid and, as such, he was taken to the hospital and thereafter when the police official reached the hospital, they recorded the statement of Parminder Singh and the First Information Report was recorded. Although there is a noting on the First Information Report that the copy of the First Information Report was received by the Metropolitan Magistrate at 12:35 PM, however, when she appeared in the witness box, no cross-examination was done to elicit as to how the First Information Report was received at 12:35 PM. Moreover, the mere fact of slight delay in receiving the report by Metropolitan Magistrate is not fatal to the case of prosecution, inasmuch as, at the very first available opportunity, the brother of the deceased had narrated the entire incident with specific role of each and every accused and he remained consistent in his deposition before the Court. As such, it was submitted that the impugned judgment does not suffer from any infirmity which calls for interference, as such, appeal is liable to be dismissed. Crl. A. No. 544/1998 Page 12 of 49
11. Firstly, dealing with the aspect of delay in despatching FIR to the Magistrate, the incident took place at about 10:10 PM. Vide DD No. 493, intimation was sent at 22:27 regarding one person lying in injured condition in front of Qumayun Hotel, Defence Colony. Information was received by Head Constable Dharam Singh, Incharge PCR Van at about 10:30 PM and thereafter, he reached the spot and took the injured to AIIMS. As per MLC, the injured was brought to hospital at about 11:00 PM. On receipt of DD No. 18A, Ex. PW6/A SI Joginder Singh along with other police officials reached the spot where he came to know that injured has already been taken by PCR Van to hospital. Thereafter, SI Joginder Singh went to AIIMS hospital where he met the brothers of the deceased, namely, Parminder Singh and Amar Singh and recorded the statement of Parminder Singh, Ex.PW1/A. He prepared the rukka Ex.PW 16/A and sent the same through Constable Narender Pal Singh, PW14 for registration of the case at 1:05 AM and thereafter vide DD No.21A, First Information Report was registered at 1:30 AM. Therefore, it cannot be said that there is any delay in lodging the First Information Report. However, learned counsel for the appellant laid great Crl. A. No. 544/1998 Page 13 of 49 emphasis on the fact that the special report was received by learned Metropolitan Magistrate on 4th August, 1990 at 12:35 PM which shows that the First Information Report has been ante-timed to introduce false witness. Constable Basanta Ram, PW3 had delivered the special report to the learned Metropolitan Magistrate and the concerned senior officers at their residence. In cross-examination, he has stated that he had delivered the special report on 4 th August, 1990 at 3:00 AM. He has first delivered the report at the residence of DCP. Nothing has been elicited in his cross-examination as to at what time he delivered the special report to the Metropolitan Magistrate. The learned Metropolitan Magiatrate Ms. Sangeeta Dhingra Sehgal, PW8 has stepped into the witness box. Even in her cross-examination, it has not been elicited at what time she received special report.
12. Moreover, dealing with the aspect of delay in sending the copy of First Information Report to Court, Hon‟ble Supreme Court in Bhajan Singh vs. State of Haryana, (2011) 7 SCC 421, observed as under:-
"24. In Shiv Ram and Anr. v. State of U.P. AIR 1998 SC 49, this Court considered the provisions of the Section 157, Code of Criminal Procedure, which require that the police officials would send a copy of the FIR to the Illaqa Magistrate forthwith. The court held that if there is a delay in forwarding the copy of the FIR to the Illaqa Magistrate, that Crl. A. No. 544/1998 Page 14 of 49 circumstance alone would not demolish the other credible evidence on record. It would only show how in such a serious crime, the Investigating Agency was not careful and prompt as it ought to be.
25. In Munshi Prasad and Ors. v. State of Bihar this Court considered this issue again and observed:
"13....While it is true that Section 157 of the Code makes it obligatory on the officer in charge of the police station to send a report of the information received to a Magistrate forthwith, but that does not mean and imply to denounce and discard an otherwise positive and trustworthy evidence on record. Technicality ought not to outweigh the course of justice - if the court is otherwise convinced and has come to a conclusion as regards the truthfulness of the prosecution case, mere delay, which can otherwise be ascribed to be reasonable, would not by itself demolish the prosecution case.
While deciding the said case, this Court placed relied upon its earlier judgments in Pala Singh and Anr. v. State of Punjab and State of Karnataka v. Moin Patel.
26. In Rajeevan and Anr. v. State of Kerala this Court examined a case where there had been inordinate delay in sending the copy of the FIR to the Illaqa Magistrate and held that un-explained inordinate delay may adversely affect the prosecution case. However, it would depend upon the facts of each case.
27. A similar view was reiterated in Ramesh Baburao Devaskar and Ors. v. State of Maharashtra, wherein there had been a delay of four days in sending the copy of the FIR to the Illaqa Magistrate and no satisfactory explanation could be furnished for such inordinate delay. While deciding the said case, reliance had been placed on earlier judgments in State of Rajasthan v. Teja Singh and Ors. and Jagdish Murav v. State of U.P. and Ors. (See also Sarwan Singh and Ors. v. State of Punjab, State of U.P. v. Gokaran and Ors. Gurdev Singh and Anr. v. State of Punjab State of Punjab v. Karnail Singh, State of J and K v. Mohan Singh and Ors., N.H. Muhammed Afras v. State of Kerala, Sarvesh Narain Shukla v. Daroga Singh and Ors. and Arun Kumar Sharma v. State of Bihar.
28. Thus, from the above it is evident that the Cr.P.C provides for internal Crl. A. No. 544/1998 Page 15 of 49 and external checks: one of them being the receipt of a copy of the FIR by the Magistrate concerned. It serves the purpose that the FIR be not ante- timed or ante-dated. The Magistrate must be immediately informed of every serious offence so that he may be in a position to act under Section 159 Code of Criminal Procedure, if so required. Section 159 Code of Criminal Procedure empowers the Magistrate to hold the investigation or preliminary enquiry of the offence either himself or through the Magistrate subordinate to him. This is designed to keep the Magistrate informed of the investigation so as to enable him to control investigation and, if necessary, to give appropriate direction.
29. It is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been anti-timed or anti-dated or investigation is not fair and forthright. Every such delay is not fatal unless prejudice to the accused is shown. The expression 'forthwith' mentioned therein does not mean that the prosecution is required to explain delay of every hour in sending the FIR to the Magistrate. In a given case, if number of dead and injured persons is very high, delay in dispatching the report is natural. Of course, the same is to be sent within reasonable time in the prevalent circumstances.
30. However, un-explained inordinate delay in sending the copy of FIR to the Magistrate may affect the prosecution case adversely. An adverse inference may be drawn against the prosecution when there are circumstances from which an inference can be drawn that there were chances of manipulation in the FIR by falsely roping in the accused persons after due deliberations. Delay provides legitimate basis for suspicion of the FIR, as it affords sufficient time to the prosecution to introduce improvements and embellishments. Thus, a delay in dispatch of the FIR by itself is not a circumstance which can throw out the prosecution's case in its entirety, particularly when the prosecution furnishes a cogent explanation for the delay in dispatch of the report or prosecution case itself is proved by leading unimpeachable evidence."
13. Learned counsel for the appellant has relied upon Satguru Singh (supra). In that case, there was inordinate delay of 10 days in lodging First Information Report. No explanation except that efforts Crl. A. No. 544/1998 Page 16 of 49 for compromise were on by respectable inhabitants of the village and therefore First Information Report was not lodged earlier. None of the respectables of the village have, however, been examined in support of such version. It was observed that this delay affects the credibility of the injured coupled with the fact that name of the assailants were not disclosed at the first opportunity, evidence of eye witness suffered from infirmities hence accused was given benefit of doubt and conviction was set aside.
14. In the instant case, there was no delay in lodging the First Information Report and in the absence of any effective cross- examination of Constable Basanta Ram, PW3 who has deposed that he has delivered the special report at about 3:00 AM and no suggestion to the effect that in fact it was delivered to the Metropolitan Magistrate at about 12:45 PM or eliciting from the Metropolitan Magistrate as to the actual time when she received the special report, it cannot be said that there is any delay in dispatch of the First Information Report. The first limb of the argument advanced by counsel for the appellant has, therefore, failed and is hereby rejected.
Crl. A. No. 544/1998 Page 17 of 49
15. That brings us to the question whether Parminder Singh was an eye witness of the incident and if so, whether he is a reliable witness being the brother of the deceased and whether the conviction of the appellant can be based on the solitary testimony of this witness. Presence of this witness has been challenged on the ground that had he been present at the spot and witnessed the incident, he being brother of the deceased would have come forward to save him. Moreover, the clinic of Dr. Bhardwaj was nearby the place of incident and the first endeavour of the witness would have been to take his brother to the clinic of Dr. Bhardwaj which was not done. Moreover, the police machinery swung into action on the basis of DD No. 493 given by some unknown person regarding a person lying injured in front of Qumayun Hotel, Defence Colony. Had he been present at the spot, he would have intimated the police about the incident. Further, he did not accompany the injured to hospital which is reflected from the MLC where in the column of "brought by" name of Head Constable "Dharam Singh PCR" has been mentioned and in the column of name of injured, "unknown" was mentioned and it was only subsequently that the name of the injured and in the column of Crl. A. No. 544/1998 Page 18 of 49 "brought by" "and brothers" were added. None of the submission made by the learned counsel for the appellant has any force as it has come in the testimony of Parminder Singh (PW1) that on 3rd August, 1990, he had gone to the house of his mother at 826/5 Arjun Nagar, Kotla Mubarakpur. His elder brother Amar Singh and another brother Ladi were also there. At about 10:00 PM, all the three brothers left the mother‟s house for their respective houses. He and his brother Amar Singh were walking ahead of Davinder Singh @ Ladi. When they reached Sukhdev market, they heard cries of Ladi "bachao bachao". They turned around and saw that Ladi who was at a distance of about 10 paces from them, was being attacked by the three accused. Inder Singh was armed with a knife while Amar Singh and Shiv Charan were armed with hockey sticks. They were attacking Ladi with these weapons. All the accused were well known to him from before as they lived in Kotla Mubarakpur where he lived for 30 years. When they tried to intervene to save their brother Devinder @ Ladi, all the three accused aimed their weapons on them and threatened that in case, they intervene, they would also be killed. In his presence and in presence of his other brother, the accused persons Crl. A. No. 544/1998 Page 19 of 49 inflicted knife and hockey blow on the person of Ladi. Due to the assault by the accused persons, Ladi fell down on the ground and almost became unconscious. The accused persons fled from the spot and while fleeing, they declared that they had avenged the death of Khazan. While they were taking care of their brother, the police Van arrived at the spot in which they removed Ladi to AIIMS. In the hospital, Ladi was declared dead. His statement Ex. PW1/A was recorded by the police in the hospital which bears his signature at point „A‟. As such, the testimony of the witness makes it clear that when he came to the rescue of his brother, the accused persons wielded their weapon at them and threatened that in case they intervene, they would also be killed. That being the reason, the witness and his brother could not come to the rescue of their brother Devinder @ Ladi.
16. As regards the submission as to why the witness did not take his brother to the clinic of Dr. Bhardwaj which was nearby the place of incident, Parminder PW1 has not been cross-examined to elicit as to why he did not take his brother to the clinic of Dr. Bhardwaj. The incident is alleged to have taken place at about 10:00 pm and Crl. A. No. 544/1998 Page 20 of 49 possibility of the clinic being closed by that time cannot be ruled out. Learned counsel for the appellant submitted that it was the residence- cum-clinic of Dr. Bhardwaj. However, this fact is not borne out from the record. In any case, in the absence of any cross-examination in this regard, no adverse inference can be drawn regarding the presence of the witness at the spot. The mere fact that some unknown person sent information regarding a person lying injured in front of Qumayun hotel on the basis of which DD No. 493 and thereafter DD No. 18A was recorded ipso facto is not sufficient to conclude that the witness was not present at the spot as it has come in the testimony of the witness that they were taking care of their brother and therefore, if somebody else had informed the police, again no adverse inference can be drawn. As regards the removal of injured to the hospital, the witness has deposed that the police van arrived at the spot in which they removed their injured brother to the hospital. A perusal of the MLC Ex.PW17/A goes to show that in the column of name first „unknown‟ is mentioned and thereafter Devinder @ Ladi is written and in the column of relative "Head Constable Dharam Singh, Incharge-PCR and brothers" is written. The MLC was prepared by Crl. A. No. 544/1998 Page 21 of 49 Dr. Romesh Lal, PW 17 and this witness has not been cross-examined by the appellants. He was the best person to explain under what circumstances, in the column of name the word "unknown" and then Devinder Singh and in the column of "brought by", "Head Constable Dharam Singh and brothers" was written. On the other hand, it has come in the statement of Parminder that he had informed the name of his brother Ladi to the doctor. Similarly, Head Constable Dharam Singh, Incharge PCR van has stated that relatives of the deceased had accompanied him in the PCR van to AIIMS. Head Constable Satpal PW13, who was posted as duty constable at AIIMS has also stated that Devinder @ Ladi was brought by his two brothers to AIIMS at 11:00 PM. All these witnesses have not been cross-examined by the appellants. Under the circumstances, there is unchallenged testimony of Dr. Romesh Lal PW17, Head Constable Dharam Singh, Incharge (PCR Van), PW 15 Head Constable Satpal, PW13 all of whom have deposed that Devinder @ Ladi was brought to the hospital by his brothers. In the absence of putting any question to these witnesses, the appellant cannot take any benefit.
Crl. A. No. 544/1998 Page 22 of 49
17. Hon‟ble Supreme Court in Laxmibai (Dead) Thr. L.Rs. and Anr. v. Bhagwantbuva (Dead) Thr. L.Rs. and Ors., AIR 2013 SC 1204 examined the effect of non-cross examination of witness on a particular fact/circumstance and held as under:
"40. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross- examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses."
18. Substantially similar view was taken in Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434, and Gian Chand and Ors. v. State of Haryana, JT 2013 (10) SC 515 and Gulam Sarbar v. State of Bihar, (2014) 3 SCC 401.
Crl. A. No. 544/1998 Page 23 of 49
19. Thus, it becomes crystal clear that the defence cannot rely on nor can the court base its finding on a particular fact or issue on which the witness has not made any statement in his examination-in- chief and the defence has not cross examined him on the said aspect of the matter.
20. Din Dayal (supra) relied upon by counsel for the appellant is distinguishable inasmuch as eye witnesses closely connected with the accused did not accompany him to hospital nor had informed the police about incident; after seeing the incident, they quietly went back home; there was material improvements in the statements made before Court, under those circumstances, it was observed that same creates serious doubt regarding truthfulness of evidence of eye witness. In Sucha Singh (supra) also, ocular evidence was in contradiction with medical evidence. In the statements before police, eye witness stated that accused inflicted eight injuries on the person of deceased. However, the doctor who conducted the post mortem deposed that there were 24 injuries on the body of deceased. Eye witness made improvements in Court by saying that after inflicting eight injuries on the deceased, accused inflicted many injuries. Under Crl. A. No. 544/1998 Page 24 of 49 these circumstances, presence of the eye witness at the spot was held to be doubtful.
21. Things are entirely different in the instant case. Presence of witness at the spot is not even challenged by the appellants, as even no such suggestion to this effect was given In view of the discussions made above, presence of the witness at the spot stands proved.
22. This brings us to the question whether PW1 Parminder is reliable witness. The contention as seen earlier is that since this witness happens to be brother of the deceased, he must be taken as partisan witness on account of his close relation with the victim.
23. It is a settled legal proposition that the evidence of a closely related witness is required to be carefully scrutinized and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can certainly be relied upon.
Crl. A. No. 544/1998 Page 25 of 49
24. In State of Rajasthan v. Kalki, AIR 1981 SC 1390, Hon‟ble Supreme Court held:
"7. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased"......For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W. 1 had no interest in protecting the real culprit, and falsely implicating the Respondents.
25. Hon‟ble Supreme Court in Raju @ Balachandran and Ors. v. State of Tamil Nadu, AIR 2013 SC 983, very recently attempted a possible categorization of witnesses and identified broadly four such categories in the following words:
"24. For the time being, we are concerned with four categories of witnesses - a third party disinterested and unrelated witness (such as a bystander or passer-by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused. But, more than the categorization of a witness, the issue really is one of appreciation of the evidence Crl. A. No. 544/1998 Page 26 of 49 of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required."
26. In Shanmugam and Anr. v. State Rep. by Inspector of Police, Tamil Nadu, (2013) 12 SCC 765, it was observed that far more important than categorization of witnesses is the question of appreciation of their evidence. The essence of any such appreciation is to determine whether the deposition of the witness as to the incident is truthful hence acceptable. While doing so, the Court can assume that a related witness would not ordinarily shield the real offender to falsely implicate an innocent person. In cases where the witness was inimically disposed towards the accused, the Courts have no doubt at times noticed a tendency to implicate an innocent person also, but before the Court can reject the deposition of such a witness the accused must lay a foundation for the argument that his false implication springs from such enmity. The mere fact that the witness was related to the accused does not provide that foundation. It may on the contrary be a circumstance for the Court to believe that the version of the witness is truthful on the simple logic that Crl. A. No. 544/1998 Page 27 of 49 such a witness would not screen the real culprit to falsely implicate an innocent. Suffice it to say that the process of evaluation of evidence of witnesses whether they are partisan or interested (assuming there is a difference between the two) is to be undertaken in the facts of each case having regard to ordinary human conduct prejudices and predilections.
27. The approach which the Court ought to adopt in such matters has been examined by Hon‟ble Supreme Court and this Court in several cases, reference to which is unnecessary except a few that should suffice. In Dalip Singh v. State of Punjab, AIR 1953 SC 364, it was observed:
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
(emphasis supplied) Crl. A. No. 544/1998 Page 28 of 49
28. The above was followed in Masalti v. State of U.P., (1964) 8 SCR 133 where it was observed:
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses..... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
29. We may also refer to the decision of Hon‟ble Supreme Court in Darya Singh v. State of Punjab, (1964) 3 SCR 397 and a more recent reminder of the legal principles in Takdir Samsuddin Sheikh v. State of Gujarat and Anr, (2011) 10 SCC 158 where it was observed:
"(i) While appreciating the evidence of witness considering him as the interested witness, the court must bear in mind that the term 'interested' postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some other reason. (Vide: Kartik Malhar v. State of Bihar,(1996) 1 SCC 614, and Rakesh and Anr. v. State of Madhya Pradesh, JT 2011 (10) SC 525).
(ii) This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number, the quantity, Crl. A. No. 544/1998 Page 29 of 49 but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. (See: Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614, Sunil Kumar v. State Govt. of NCT of Delhi, (2003) 11 SCC 367, Namdeo v. State of Maharashtra, (2007) 14 SCC 150 and Bipin Kumar Mondal v. State of West Bengal, AIR 2010 SC 3638)."
30. To the same effect are the decisions in Amit v. State of Uttar Pradesh, (2012) 4 SCC 107; Bur Singh and Anr. v. State of Punjab, AIR 2009 SC 157 and State of U.P. v. Kishanpal and Ors., (2008) 16 SCC 73; Gangabhavani v. Rayapati Venkat Reddy and Ors, AIR 2013 SC 3681.
31. In the case at hand, deposition of Parminder Singh (PW1) has been found to be reliable by the learned Trial Court, no matter he was closely related to the deceased. There is nothing in the cross- examination of the witness that could be said to have adversely affected the credibility of this witness nor is there anything to suggest that apart from his being a relative of the deceased, he had any other Crl. A. No. 544/1998 Page 30 of 49 reason to falsely implicate the accused persons or anyone of them. Moreover the presence of the witness at the spot is not even challenged by the appellant, inasmuch as, even no suggestion was given to him that he was not present at the spot or that he and Amar Singh did not accompany the victim to hospital. It has further come in his statement that in the process of removing the victim to the hospital, his clothes as well as that of his brother were stained with blood and the same were seized by the police. Even this fact remains unchallenged. The witness has given a graphic account of the attack on his brother by the accused persons. His statement is reliable, trustworthy and consistent with the course of events and there is no bar in basing the conviction of the accused on the testimony of this witness.
32. Moreover, there is ample other evidence to corroborate the testimony of this witness. The other eye witnesses to the incident are alleged to be PW5 Sujan Singh and PW11 Amar Singh. As regards Sujan Singh (PW5) is concerned, this witness has not supported the case of prosecution at all, although in the very initial statement, Ex.PW1/A given by PW1, he claimed him to be eye witness to the Crl. A. No. 544/1998 Page 31 of 49 incident. There is general apathy and indifference on the part of the public to join police proceedings as they do not want to get dragged in police and criminal cases and want to avoid them because of long drawn trials and unnecessary harassment. In case, he joins the proceedings, then such is the fate as reflected in this case. In this context, it will be advantageous to reproduce the observations of Hon‟ble Court in Krishna Mochi vs. State of Bihar, 2002 6 SCC 81:-
"It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of cross-examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skilful cross-examiner and at times under the stress of cross-examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. These days it is not difficult to gain over a witness by money power or giving him any other all urence or giving out threats to his life and/or property at the instance of persons, in/or close to powers and muscle men or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent."
33. However, as regards actual incident, testimony of PW1 find corroboration from Amar Singh (PW11). This witness has deposed on Crl. A. No. 544/1998 Page 32 of 49 the same lines as that of Parminder and has unfolded that on 3rd August, 1990, he, his brothers Parminder and Devinder Singh had gone to see their mother at 826/5 Arjun Nagar, Kotla Mubarakpur. At about 10:00 PM, they all were returning and when they reached the turning of Sukhdev Market, he and his brother Parminder were ahead of Devinder Singh. Suddenly they heard cries of Devinder Singh "Parminder mujhko bachao". They looked behind. His brother Parminder ran towards his brother, however, he was unable to run because of some problem in his spinal cord. When he reached there, he found his brother Devinder lying on the ground. His brother Parminder Singh asked him to wait and he ran after culprits who were running. Though it was dark but since many workshops for repairing cars were there and headlight of one of the car was on, he could see the back of the culprits and they were three. Two of them were carrying hockey sticks with them. However, he could not notice if third was carrying any weapon with him. The police arrived at the scene of occurrence at 10:45 PM. They removed their brother Devinder to AIIMS where he was admitted. While he was carrying the body of his brother for lifting in the vehicle, his clothes as well as Crl. A. No. 544/1998 Page 33 of 49 of his brother were stained with blood which were seized by the police later on. However, as regards the identity of the accused, the witness stated that since it was dark, therefore, he was not able to see the faces of the culprit and could not say if the accused persons were the same persons who had killed his brother. Under the circumstances, except for identification of the accused persons, this witness has corroborated the testimony of PW1 Parminder Singh regarding the incident.
34. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examine him. The evidence of such witness cannot be treated as effaced or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable upon a careful scrutiny thereof. In this context, it will be worthwhile to refer to Sathya Narayanan v. State rep.by Inspector of Police, (2012) 12 SCC 627; Mrinal Das & Others vs. State of Tripura, (2011) 9 SCC 479; Paramjit Singh @ Pamma vs. State of Uttrakhand, AIR 2011 SC 200; Rameshbhai Mohanbhai Koli and Ors. Vs. State of Gujarat, (2011) 3 SCC (Cri) Crl. A. No. 544/1998 Page 34 of 49 102; Koli Lakhmanbhai Chanabhai Vs. State of Gujarat, (1999) 8 SCC 624; Prithi vs. State of Haryana, (2010) 8 SCC 536 and Ramesh Harijan Vs. State of Uttar Pradesh, (2012) 5 SCC 777, Rohtash Kumar Vs. State of Haryana, (2013) 14 SCC 434, Veer Singh & Ors. Vs. State of U.P., (2014) 2 SCC 455.
35. Therefore, the law permits the Court to take into consideration the deposition of a hostile witness to the extent that the same is in consonance with the case of prosecution and is found to be reliable in careful judicial scrutiny. As regards the actual incident, removing the injured to hospital and in that process, his clothes and that of his brother Parminder got stained with blood, recording of statement of Parminder by police in hospital goes unchallenged in the absence of any cross-examination in these regards. As such, the testimony of PW 1 Parminder Singh finds substantial corroboration from Amar Singh, PW11 regarding the actual incident, number of assailants being three and that the injured was removed to hospital by them in PCR Van.
36. Further testimony of PW1 also finds corroboration from the medical evidence. Post mortem on the dead body of Devinder @ Crl. A. No. 544/1998 Page 35 of 49 Ladi was conducted by Dr. M.S. Sagar, PW21. On external examination following ante-mortem injuries were noticed:-
1. Multiple contusions and abraded contusions over both forearms, both arms and dorsum of both hands.
2. CLW on right periauricular region of size 3 cm x 2 cm x 0.5 cm.
3. Contusions right mandibular region extending to neck of size 6 cm x 3 cm.
4. Incised wound on the right side of forehead 1 cm below hairline of size 1.5 x 1 cm superficial.
5. Incised wound left upper limb vertically placed of size 1.5 x 1 cm x muscle deep with clean cut inverted margins.
6. Incised wound left knee of size 5 cm x .5 cm x bone deep with clean cut inverted margins.
7. Incised wound left forearm round elbow of size 1 cm x 1 cm margins clean cut and everted.
8. Incised wound left forearm placed 6 cm below elbow joint of size 2.5 x 1x bone deep, with clean cut inverted margins, with cut impressions present on the olecraenon.
9. Incised wound left forearm anterio-medical aspect placed 5 cm below cubital fossa of size 1.5cm x 1cm x muscle deep with clean cut inverted margins underline subcutaneous tissue and muscle clean cut.
10. Incised wound right side of abdomen placed 10 cm below coastal margins in mid axillary plane 3 cm x 1 cm into muscle deep obliquely placed, margins clean cut, not penetrating the abdominal cavity.
11. Stab wound right side of chest anterior axillary plane obliquely placed of size 3.5 cm x 1 cm, 22 cm below cavicular with clean cut everted margins passing through 7th intercoastal plane entering into left lower lobe of lung going into pericardium with presence of hemo-pericardium and incised wound left pentricle around apex of size 2 cm x 1.5 cm x whole thickness of ventricle.
12. Stab wound of size 4 cm x 1 cm x skin deep placed transversely 8 cm below injury no.11.
Crl. A. No. 544/1998 Page 36 of 49
13. Incised wound 1 cm x 1 cm with clean cut inverted margins placed 2 cm lateral and 1.5 cm below injury no.12.
14. Stab wound left side of abdomen in posterior axillary line placed 25 cm below clavicular margins of size 4 cm x 1 cm going into abdominal cavity producing multiple incised wound of small and large intestines.
15. Incised wound of size 4 cm x 1.5 cm in left side of abdomen 6 cm below and 2 cm medial to injury no.14.
Internal examination of the deceased revealed:- There were homo-thorax on left side with about 500 cc of blood being present. There was stab wound of left lung lower lobe of size 3 cm x 1.5 cm x 4 cm. Hemo-cardium was also present with 400 cc of blood and blood clots. There was stab wound of heart over apex of size 2.5 cm x 1 cm x whole thickness of left ventricular wall with cutting of cordae-tendenae. In the abdominal cavity, there was hemo-periteneum about 400 cc of blood and blood clots with multiple incised wound of small and large intestines. It was opined that cause of death was shock as a result of multiple antemortem injuries produced by sharp edged weapon. Injury no.11 and 14 are sufficient to cause death in the ordinary course of nature individually as well as collectively.
37. Under the circumstances, testimony of PW1 that accused Inderjeet Singh assaulted the deceased with knife find corroboration from medical evidence, as according to Dr. M.S.Sagar, cause of death was shock as a result of ante-mortem injuries produced by „sharp edged weapon‟. Needless to say, knife is a sharp edged weapon.
38. It is the case of prosecution that on the basis of secret information on 4th August, 1990, all the appellants were apprehended Crl. A. No. 544/1998 Page 37 of 49 from Seva Nagar Railway Station and were arrested. Appellant Inderjeet Singh made a disclosure statement Ex.PW9/D stating therein that the knife used by him in the murder was kept by him under the tin shed of the bathroom of the house of his uncle Mahender Singh in Village Kher Pur which he can get recovered and that the clothes which he was wearing at the time of murder which were stained with blood were washed by him and lying on the rassi in his house which he can get recovered. In pursuance to this disclosure statement, he led police party to the house of his uncle Mahender in Village Kher Pur and got recovered knife, Ex.P9 concealed in the bathroom which was seized after preparing its sketch and sealing in a pulanda vide memo Ex. PW9/H. He also got recovered one pant Ex. PW10 and shirt Ex. P11 hanging on the rope in the courtyard of his house situated in Village Kherpur which were seized vide seizure memo Ex. PW9/I after sealing in a pulanda.
39. Accused Amarjeet Singh also made a disclosure statement Ex. PW9/E that he could get recovered the danda portion of the hockey used in the murder from the roof of his house and in pursuance to the disclosure statement, he got recovered the back portion of the hockey, Crl. A. No. 544/1998 Page 38 of 49 i.e. danda from his house which was taken into possession vide recovery memo Ex. PW9/J.
40. In pursuance to the disclosure statement Ex. PW9/F, accused Shiv Charan got recovered one hockey from the roof of his house in Nanak Chand Basti in village Kherpur, which was taken into possession vide recovery memo Ex. PW9/K.
41. Seizure of knife at the instance of Inderjeet Singh and hockey/danda portion at the instance of remaining two appellants has been challenged by learned counsel for the appellant on the ground that no independent witness was joined in the recovery and police officials have not corroborated each other. Reliance was placed on Salim Akhtar (supra) where no independent witness was joined at the time of recovery of pistol. Pistol was not sealed on the spot nor its number nor make etc to fix its identity was mentioned in the recovery memo or in the First Information Report. Under those circumstances, recovery was held to be doubtful. Reliance was also placed on Gurnam Singh(supra) which was an appeal against acquittal. The High Court had taken the view that it is unsafe to convict the appellant merely on the basis of uncorroborated evidence Crl. A. No. 544/1998 Page 39 of 49 pertaining to the alleged recovery of weapon at the instance of accused. The accused was, therefore, entitled to benefit of reasonable doubt. The view taken by the High Court was plausible one, hence appeal was dismissed. These decisions are distinguishable in the facts and circumstances of the present case in view of discussions made hereininafter.
42. Although it is true that there is no independent witness to the recovery of weapon of offence at the instance of appellants, however, that itself is not sufficient to discard the testimony of the police officials. Prosecution has examined PW9 SI Gian Singh, PW12 HC Chottu Ram, PW24 Const. Jai Singh, PW25 Insp. Richhpal Singh, all of whom have deposed regarding recovery of weapon of offence at the instance of accused person. PW 14 Constable Narender Pal Singh and Head Constable Kesh Ram are also witnesses to the recovery of knife at the instance of accused Inderjeet Singh. All these witnesses have deposed regarding recovery of knife at the instance of accused Inderjeet Singh.
43. In Girja Prasad by LRs v. State of MP, (2007) 7 SCC 625, Hon'ble Supreme Court while particularly referring to the evidence of Crl. A. No. 544/1998 Page 40 of 49 a police officer, said that it is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration.
44. Substantially similar issue came up for consideration before Hon‟ble Supreme Court in Govindraju @ Govinda vs. State by Sriramapuram PS & Anr., 2012 III AD(SC)453 and it was observed as under:-
"17. Wherever, the evidence of the police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. The courts have also expressed the view that no infirmity attaches to the testimony of the police officers merely because they belong to the police force Crl. A. No. 544/1998 Page 41 of 49 and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. Such reliable and trustworthy statement can form the basis of conviction. Rather than referring to various judgments of this Court on this issue, suffices it to note that even in the case of Girja Prasad (supra), this Court noticed the judgment of the Court in the case of Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217, a judgment pronounced more than half a century ago noticing the principle that the presumption that a person acts honestly applies as much in favor of a police officer as of other persons and it is not a judicial approach to distrust and suspect him without good grounds therefore. This principle has been referred to in a plethora of other cases as well. Some of the cases dealing with the aforesaid principle are being referred hereunder."
45. Reference was made to Tahir v. State (Delhi), (1996) 3 SCC 338, where dealing with a similar question, the Court held as under:
"6. ...In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."
46. The result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record.
Crl. A. No. 544/1998 Page 42 of 49
47. As regards the submission that certain discrepancies appeared in the testimony of the police witnesses as to whether the knife was recovered from underneath the cement sheet or iron sheet, it was rightly observed by learned Trial Court that the incident took place in the year 1990 while the evidence of the police official came to be recorded in the year 1997-98 and due to lapse of time, the discrepancies are bound to occur in their testimony. However, the discrepancies were not of such a nature which could render the entire prosecution case not worthy of reliance.
48. Dealing with the aspect of discrepancies in Rohtash Kumar Vs. State of Haryana, (2013) 14 SCC 434 it was held as under:-
"24. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence in its entirety. Therefore, unless irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness. Thus, the court must read the evidence of a witness as a whole, and consider the case in light of the entirety of the circumstances, ignoring the minor discrepancies with respect to trivial Crl. A. No. 544/1998 Page 43 of 49 matters, which do not affect the core of the case of the prosecution. The said discrepancies as mentioned above, should not be taken into consideration, as they cannot form grounds for rejecting the evidence on record as a whole. (See: State of U.P. v. M.K. Anthony, AIR 1985 SC 48; State rep. by Inspector of Police v. Saravanan and Anr., AIR 2009 SC 152; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191)."
49. Discrepancies pointed out by counsel for the appellant are trivial in nature and do not go to the substratum of the case, hence there is no reason to disbelieve the recovery of knife at the instance of accused Inderjeet Singh.
50. As regards recovery of hockey at the instance of Amar Singh and Shiv Charan, in view of certain discrepancies appearing in the testimony of the witnesses, learned Trial Court observed that recovery of broken piece of hockey is not free from doubt but it was rightly observed that recovery of weapon of offence is only a corroborative piece of evidence and even if the weapon of offence is not recovered, the eye witness account cannot be discarded on that count.
51. Much emphasis was laid by the learned counsel for the appellant for submitting that the tip of the knife was blunt and, therefore, the injuries could not have been inflicted with such a knife and no opinion of the doctor has been obtained as to whether the injuries could have been caused by knife Ex. P-9. Crl. A. No. 544/1998 Page 44 of 49
52. A perusal of the post mortem report Ex. PW21/A reflects that Dr. M. S. Sagar has opined that the cause of death was due to shock due to multiple ante mortem injuries produced by sharp edged weapon and injury No.11 and 14 were individually and collectively sufficient to cause death in the ordinary course of nature. It is true that Investigating Officer has not obtained opinion of doctor by showing the knife to him but this lapse on the part of the Investigating Officer is not sufficient to discard the testimony of the eye witness. Time and again it has been held by Hon‟ble Supreme Court as well as this Court that lapses on the part of Investigating Officer should not come in the way of accepting eye witness account, if it is otherwise truthful and reliable. Learned Trial Court had an occasion to see the knife Ex. P9 when it was produced before the Court and it was observed that the tip of the knife was slightly blunt but the blade of the knife was intact and, therefore, it cannot be said that the stab wound and the incised wound on the person of the deceased could not be caused by knife Ex. P9. Under the circumstances, the medical evidence corroborates the ocular version.
Crl. A. No. 544/1998 Page 45 of 49
53. Various articles, viz., pair of shoes, steel strip, blood stained earth, hockey stick were seized from the spot. Blood stained clothes of PW1 and PW 11 namely Parminder Singh and Amar Singh were also seized. After the post mortem, the clothes of the deceased were handed over to the police. The appellant Inderjeet Singh got recovered the knife as well as his clothes. All these articles were sent to FSL. A perusal of the FSL report goes to show that on most of the articles, blood was found which was of human origin. Although the blood group "O" was opined on the clothes of the deceased, however, as regards remaining articles, the blood group could not be opined by observing "no reaction‟. The fact remains that on the clothes of PW1 Parminder Singh and Amar Singh, human blood was found. The same lend corroboration to the fact that while removing the injured to hospital their clothes were stained with blood. Even the knife recovered at the instance of Inderjeet Singh was found to contain human blood.
54. Moreover, Ex. 13A and Ex. 13B were the pant and shirt of the deceased which had cut marks. As per the report given by Sh. Rajender Singh, Sr. Scientific Officer, the laboratory examination on Crl. A. No. 544/1998 Page 46 of 49 cut marks Q1 and Q2 on pant (Ex. No. 13) and cut marks Q3 to Q6 on shirt (Ex.13b) reveal that same have been caused by a sharp edged weapon and that the same could have been caused by knife marked Ex. 9.
55. Clothes of the accused Inderjeet Singh sent to FSL were also found to be having human blood for which no explanation has been given by him as to how human blood came on his clothes. Report of FSL is another clinching piece of evidence to connect appellants with the crime.
56. The motive to commit crime is writ large as there is unchallenged evidence on record that Devinder Singh @ Ladi was facing trial in the murder of Khazan Singh, father of the accused Inderjeet Singh and at the time of this incident, the deceased was on interim bail. It has further come in the statement of Parminder that prior to this incident, on the day of Dussehra in the year 1989, accused Inderjeet Singh along with some other accused had given beatings to Ladi and he suffered injuries in that incident. It was submitted by learned counsel for the appellant that motive is a double edged weapon and since the deceased was facing trial for the murder Crl. A. No. 544/1998 Page 47 of 49 of father of the appellant Inderjeet Singh, as such, the complainant party had an axe to grind to falsely implicate the appellants, however, this motive also furnishes a ground for taking revenge by the appellants for the murder of father of Inderjeet Singh which is clear from the fact that while fleeing away the appellants declared that they have avenged the death of Khazan Singh. Moreover, the brother of the deceased would not have allowed the real culprits to go scot free and to implicate the appellants falsely in this case.
57. The result of the aforesaid discussion is that the eye witness account narration of the incident given by PW1 Parminder Singh is cogent, reliable and inspired complete confidence. Moreover, his testimony finds corroboration from his own brother PW11 Amar Singh besides the medical and scientific evidence. The entire evidence was meticulously examined by the learned Trial Court in correct perspective and it was only thereafter, that the appellants were convicted under Section 302 r/w Section 34 IPC besides holding appellant Inderjeet Singh also guilty under Section 27 of the Arms Act. The impugned judgment does not suffer from any infirmity or Crl. A. No. 544/1998 Page 48 of 49 perversity which calls for interference. As such, the appeal, being devoid of merit, stands dismissed.
58. Sentence of the appellants was suspended during the pendency of the appeal vide order dated 30th July, 1999.
59. The bail bonds of the appellants (Inderjeet Singh and Amar Singh) are cancelled. Appellants are directed to surrender forthwith to serve the remaining sentence.
Intimation be sent to the concerned Superintendent Jail. Trial Court record be sent back immediately.
(SUNITA GUPTA) JUDGE (KAILASH GAMBHIR) JUDGE MAY 09, 2014 rs Crl. A. No. 544/1998 Page 49 of 49