Jai Prakash vs State (Delhi Administration)
1989 Latest Caselaw 610 Del

JUDGMENT

Charanjit Talwar, J.

1. These two appeals have been filed by the appellants, who are brothers, challenging the validity of the judgment passed on 24th January, 1987 by the Addl. Sessions Judge, Delhi convicting them for an offence under S. 302 read with S. 34 of the Penal Code. Jai Parkash who is the appellant in Cri. Appeal No. 3 of 1987 has also been convicted under S. 27 of the Arms Act. The other appellant Sardari Lal (Cr. Appeal 24 of 1987) and Jai Parkash by a separate order of the same date were sentenced to life imprisonment for the offence of murdering one Pappu. Jai Parkash was further sentenced to undergo rigorous imprisonment for a period of five years under S. 27 of the Arms Act. The sentences were, however, directed to run concurrently.

2. The prosecution case was that at about 8.15 p.m. on 21st November, 1984, PW. 3, Ishwar Lal had gone to attend the engagement ceremony of his cousin (daughter of his uncle Babu Lal). This ceremony was to be performed in House No. C-326, JJ Colony, Madi Pur, Delhi. He parked his Ambassador car No. BHC-9031 in front of house of the appellants' father. The appellants' father's name is Lakh Raj and his house in front of which Ishwar Lal parked the car is numbered as C-466. The appellants, it was alleged, objected to the parking of the car in front of their house. This resulted in an altercation between them and Pappu, whose sister was getting engaged. In the fight which ensued, Sardari Lal caught hold of Pappu (since deceased) from his back and exhorted his brother Jai Parkash to kill him (Pappu). Thereupon Jai Parkash took out a knife and stabbed Pappu in the chest and other parts of his body. Thereafter the appellants, it is alleged, ran away from the spot. This incident, according to the prosecution, was witnesses by Arjun Kumar, Lakshman Lal, Ishwar Singh and Naresh Kumar.

However, PW Ishwar Lal did not hear any commotion nor did he come to know of the incident. He left House No. C-326 at about 10.00 p.m. after attending the ceremony.

The injured was alleged to have been taken to the Ram Manohar Lohia Hospital by Lakshman Lal, PW in a three wheeler scooter where Dr. M. M. Hamidi (PW. 20) examined him at 10.25 p.m. in Casualty Ward and declared him : "brought dead".

Vide MLC (Ex. PW. 20/A), the injury noticed at that time was an incised wound on the left side to the chest. It has been described therein as follows :

"(1) Incised wound 3" x 2" left 4th ICS and auxiliary line."

3. The Duty Constable at the Ram Manohar Lohia Hospital viz., Sultan Singh, where the deceased had been taken, informed Police Post Madi Pur on telephone about Pappu having been brought dead to the hospital. This information after being recorded in D.D. Report No. 27 (Ex. PW. 9/A) at 11.00 p.m. was communicated to SI B. K. Gupta, PW. 19 for investigation of the case. He firstly went to the spot and thereafter to the Ram Manohar Lohia Hospital, where he collected the said MLC of the deceased. He also recorded the statement (Ex. PW. 1/A) of Arjun Kumar, PW. 4. The Investigating Officer made his endorsement (Ex. PW. 19/A) on that statement and sent the same to Police Station Punjabi Bagh for registration of a case. It is the statement of Arjun Kumar, which has been made the basis of the First Information Report (Ex. PW. 1/B). The FIR was recorded at 1.25 a.m. on 22nd November, 1984, at the Police Station.

4. The Investigating Officer took into possession the blood soaked clothes of the deceased and also a wrist watch and an amount of Rs. 440/- which had been recovered from his (the deceased) search. Thereafter he came back to the spot and had the site photographed from different angles. He also took into possession blood stained earth and sample earth from two places. He further conducted the inquest proceedings and prepared Inquest Report (Ex. PW. 19/C) on the morning of 22nd November, 1984. The dead body along with the inquest proceedings was sent for post mortem. The autopsy was conducted by Dr. L. T. Ramani, PW. 14 on that very day at 3.00 p.m.

5. On 23rd November, 1984 both the appellants were apprehended from a park behind Shiv Mandir in Madi Pur. On interrogation Jai Parkash disclosed that he had hidden a knife in a dilapidated shop near the lavatory in C-Block of Madi Pur and then led the Police party to the place and took out the knife (Ex. P. 1) from underneath the bricks. A sketch of the knife was prepared and it was taken into possession duly sealed.

6. The learned trial court has accepted the version deposed to by the eye witnesses. The prosecution case has been found to have been proved. The appellants, however, contend that the prosecution case is completely false and based on the testimony of procured witnesses.

7. Mr. Vohra, learned counsel for the appellants has taken us through the complete record of the trial court. In support of his contentions he submits that the very basis of the prosecution case that there had been an altercation between the appellants and Pappu cannot be held to have been proved. According to him, on its own showing, the prosecution has failed to establish that there was an engagement ceremony or other ceremony on 21st November, 1984 in the evening, to be performed in the house of Pappu. The prosecution case as put to the appellants in Question 1 and 2 was that Ishwar Lal, PW. 3 had gone to attend the engagement ceremony of the daughter of Babu Lal (father of the deceased) who was living in House No. C-326, J.J. Colony, Madi Pur, on 21st November, 1984 at about 8.15 p.m. He parked his Ambassador Car in front of House No. C-466, J.J. Colony, Madi Pur, which belonged to the father of the appellants.

8. The Investigating Officer in his statement has categorically stated that during investigation it was found out that the ceremony was at the house of Pappu. But PW. 5 Babu Lal, father of the deceased who gave his residential address as C-326, JJ Colony, Madi Pur, was silent about any ceremony having taken place at his house on the said date and time.

9. PW. 3 Ishwar Lal stated that on 21st November, 1984 at about 8.15 p.m. he had gone from his house in Regar Pura, Karol Bagh to House No. C-448, JJ Colony, Madi Pur to attend the engagement ceremony of his uncle (phupha's) daughter. According to him, he had parked his car about 50/60 yards away from the house of his uncle. After attending the ceremony, at about 10 or 10.30 p.m. he returned to his house. He stated that he came to know later that a quarrel had taken place in the street where he had parked his car. His statement under S. 161 of the Code of Criminal Procedure was recorded only on 5th January, 1985 in which it seems that for the first time, the number of the Ambassador car had been disclosed to the police.

10. On scrutiny of the statement of P.W. 3 Ishwar Lal, it is apparent that while he was attending the ceremony at house No. C-448, he had not heard of any incident having taken place. He does not even say that he attended the ceremony at the house of the father of the deceased Pappu, as has been affirmatively alleged by the prosecution. As we have noticed, the house of Pappu's father is C-326.

11. There is great force in Mr. Vohra's argument that the appellants even if aggrieved of parking of the car in front of their father's house would not pick up a quarrel with Pappu because Ishwar Lal, PW. 3, whose car was parked was not his or his father's guest.

12. Mr. Vohra's second contention is that the eye witnesses are false as they were made to state in their earlier statements that only one injury had been inflicted by Jai Parkash. He submits that the case was tailored to fit in with the only injury found by Dr. M. M. Hamidi (PW. 20) in MLC (Ex. PW. 20/A). This submission needs to be discussed.

13. As we have noticed above, the deceased was removed to the hospital in a three-wheeler scooter by Lakshman Lal, PW. 6. According to PW. 8, Duty Constable Sultan Singh, this witness was present in the hospital when the Investigating Officer, SI B. K. Gupta reached there at about 11.30 p.m. on 21st November, 1984. The Duty Constable admitted that he informed the I.O. that Lakshman Lal who had brought the injured to the hospital was present at that time. He also pointed out this witness to the Sub-Inspector.

14. Mr. Vohra's argument is that as Lakshman Lal was not an eye witness to the occurrence and had merely been instrumental in bringing the injured to the hospital, he could not throw any light as to how Pappu had received fatal injury and, therefore, his statement was rightly not recorded. The argument is that Arjun Kumar, PW. 4, whose statement has been made the basis of the First Information Report was procured much later and not at the time he is stated to have made the statement. The time of dispatch of endorsement on Arjun Kumar's statement is 12.30 a.m. on 22nd November, 1984. Therefore, the statement could have been recorded between 12.00 and 12.30 a.m. According to Arjun Kumar, he was witness to the quarrel at about 9.00/9.30 p.m. on 21st November, 1984 between the appellants and Pappu and that quarrel was regarding the parking of a car in front of the house of the appellants. In his testimony he has referred to the exhortation given by Sardari Lal to his brother Jai Parkash. It was to the following effect :

"Issney Maa Ki Gali Kion Di Hai, Mar Salay Ko" (Freely translated, it means : why has he abused our mother. Kill him).

According to this witness, upon this exhortation, Jai Parkash took out a knife "from his dub" and stabbed Pappu. He only saw one knife blow being given. Pappu tried to walk but he fell down and both the accused fled away.

The witness further stated that he had gone to the hospital in a separate three-wheeler scooter and had not accompanied Lakshman Lal. The exhortation referred to in his cross-examination had not been alleged by him in his earlier statement. He admitted that Jai Parkash at the time of the incident was wearing a pant. The knife which he is alleged to have taken out from the waist band (dub) of the pant cannot be folded. The witness admitted that it is not, "foldable or closable".

Ex. P.W. 4/D is the sketch of knife (Ex. P. 1). We have examined the actual knife. Its blade is 6.4" and its handle 3.4". We are of the view that this dagger type of knife cannot be kept in a pant without a cover or sheath. It certainly cannot be hidden in a dub (waist band). It cannot be disputed that this witness in his earlier statement had not referred to any exhortation nor did he say that more than one stab injury was given by Jai Parkash. At this stage it is relevant to note that Dr. L. T. Ramani (P.W. 14), who conducted the post mortem, found four injuries on the body of the deceased. Injury No. 1 was on the left side of chest 1" below and outer to the left nipple; second incised wound was on the front of right thigh 1" below the groin; the third injury was another incised wound 1/4" x 2/10" skin deep 1" below the right anterior iliac spine and the fourth injury was a linear abrasion on the back of right shoulder.

15. Apart from the injury on the left side of the chest, the other two incised wounds one on the back and another on the right thigh just near the groin, show that P.W. 4 as well as other eye witnesses, apart from not having noticed the other knife blows, were not able to state as to how the back injury near the spine had been given. If Sardari Lal was holding Pappu from the back, injury No. 3 could not have been given by Jai Parkash at all. It is possible that all the witnesses only noticed the blow on the chest and not on the groin. But in the manner Pappu was being held by Sardari Lal, the incised wound on the back could not have been possible.

16. In support of his plea, Mr. Vohra submits that by the time that First Information Report was recorded, which was recorded after due deliberations, the prosecution was not very sure whether Lakshman Lal and Ishwar singh were prepared to support the theory which had been propounded therein. He pointed out that Arjun Kumar in his statement which is the basis of the First Information Report, after stating that there had been an altercation which led to stabbing, merely stated that, "In the meanwhile Lakshman Lal and Ishwar Singh and many other persons also reached there. Lakshman Lal removed Pappu to the hospital in a three-wheeler scooter. I have heard the statement which is correct."

17. Mr. Vohra points out that Lakshman Lal who was present in the hospital at the time when the Investigating Officer reached there, was conveniently made to say that after getting the deceased admitted in the casualty ward, he left the hospital as he had to go to Meerut on an urgent work on the morning of 22nd November, 1984. He submits that this falsehood was introduced to cover up the delay in recording his statement under S. 161 of the Code of Criminal Procedure on 27th November, 1984.

18. There is considerable force in this submission also. Even in that statement, Lakshman Lal did not state that there had been any dispute about parking of the car near the house of Lekh Raj (father of the appellants). In cross-examination, this witness stated that he remained in the hospital for only five or seven minutes after the deceased was brought to the hospital at 10.25 p.m. This assertion is obviously wrong as Duty Constable Sultan Singh is positive that this witness was available when the I.O. reached the hospital ad he (the witness) was pointed out to him. The witness's further admission that he did not tell about this incident to any person including the family of the deceased or to anyone living nearby the house of the deceased after coming back from the hospital, also shows improbable conduct. He stated that he left his house, which is adjacent to the house of the deceased, for Meerut on the morning of 22nd November, 1984 and came back to Delhi after four or five days when a police man came to his house and took him to the police station where his statement was recorded.

19. After carefully scrutinising the evidence of this witness, we are of the opinion that no reliance can be placed on his testimony regarding the incident. Accordingly it has to be held that material and integral portion of the prosecution version has not been established. The testimony of other eye witnesses also does not inspire confidence; it cannot be accepted at its face value.

P.W. 7, Ishwar Sing, who it was stated in the F.I.R. was present at the spot and witnessed the occurrence, has also improved upon his earlier statement. That statement was recorded after four or five days of the occurrence. The explanation given by him as well as by the I.O. for the delay in recording of his statement is not plausible.

The other eye witness is PW. 15 Naresh Kumar. He was not named in the First Information Report. However, he affirmed that he saw the stabbing incident. According to him, after witnessing the occurrence, he became very panicky and went away to his aunt's house which is also situate at Madi Pur. He stated that at about 1.15 a.m. he went to the spot again when he saw the police picking up blood stained earth and sample earth. He was one of the attesting witnesses to the seizure memos. In his cross-examination, it was brought out that PW. 3 Ishwar Lal was his cousin. In his testimony he only deposed to one injury having been given by Jai Parkash and that was on the chest of Pappu. It was brought out that he was resiling from his earlier statement inasmuch as he has therein that he along with Arjun Kumar followed Pappu to Ram Manohar Lohia Hospital.

The testimony of this witness was also criticised on the ground that he was a near relation of the father of the deceased and was most probably a put up witness and, therefore, was not believable. The defense version as brought out in answer to the last but one question put separately to the appellants (Q. No. 26) was to the following effect :

"P.Ws. have deposed falsely due to enemity. I had appeared as a PW in a case State v. Sunder under Section 302/34 IPC, who is the son-in-law of PW Babu Lal. Our father Lekh Raj filed a case under S. 500 IPC against Sham Lal and others. It is because of the enemical relations that the witnesses have deposed falsely and implicated me in this case."

In support of their version, the father of the appellants appeared as DW. 1. He affirmed that his sons (the appellants herein) had appeared as prosecution witnesses in a murder case against Sunder son of Binnoo and because of that, all his family members had been ex-communicated from the biradari (community). He, therefore, filed a complaint under S. 500 of the Penal Code against the office bearers of a society (Sewa Samiti of Madi Pur), who were looking after the affairs of biradari.

20. As we have noticed above, the accused in the murder case, Sunder is admitted to be son-in-law of Babu Lal, father of the deceased. In cross-examination it was brought out through this witness that Sunder was convicted and sentenced to life imprisonment, which sentence was in appeal reduced to "6 or 8 years" by the High Court. It seems that possibly the offence was converted to S. 304 Part-I, Penal Code. The prosecutor's suggestion was that as the appellants had given false evidence, that is why they were ex-communicated. The suggestion was denied but the fact which is implicit from this suggestion is that the appellants and their father had been ex-communicated by their biradari simply because they had appeared as witnesses against the brother-in-law of the deceased. The defense proved the FIR of the said murder case. It was also proved that the appellants herein were cited as witnesses.

21. Mr. Vohra's argument that the present case is infact a blind murder and because of the previous enmity between the family of the deceased and the appellants, the appellants have been falsely implicated, cannot be brushed aside in the facts and circumstances brought out on the record. We hold that the motive of the crime as alleged, has not been proved. We further hold that PW. 6 Lakshman Lal who had taken Pappu to Ram Manohar Lohia Hospital, was not an eye witness. We hold that Arjun Kumar and Lakshman Lal, PW. 4 and PW. 6 respectively had not witnessed the occurrence, but had probably reached the spot after the stabbing incident. For the reasons stated above, it is unsafe to believe the testimony of PW. 4 Arjun Kumar, the first informant in this case and the other eye witnesses as they are not completely reliable. We may note that apart from the fact that it is doubtful whether the open knife (Ex. P. 1) could have been concealed by Jai Parkash appellant in the dub of his pant, its use in the crime has not been established. It is also noteworthy that the prosecution has produced no evidence to show whether a copy of the FIR was dispatched to the Illegal Magistrate at all.

22. In conspectus the prosecution cannot thus be said to have proved the case beyond all reasonable doubts especially in view of the defense version, namely, the previous enmity between the family of the appellants and that of the deceased.

23. The result is that we set aside the impugned judgment of conviction as well as the order of sentences and allow the appeals. The appellants if not required in any other case, be released forthwith.

24. Appeals allowed.