Balwan vs State
1989 Latest Caselaw 476 Del

JUDGMENT

V.B. Bansal, J.

1. This appeal of Balwan s/o Parse r/o village Khera Khurd is directed against his conviction under S. 302, I.P.C. and the sentence of imprisonment for life and a fine of Rs. 50/- and in default of payment of fine further rigorous imprisonment for one month vide judgment and order dated 11-9-1986 by Sh. V. B. Aggarwal, Addl. Sessions Judge, Delhi. The allegations against the appellant had been that on 4-4-1984 he committed murder by intentionally causing the death of Ram Chander.

2. Ms. Neelam Grover has appeared for the appellant while Ms. Usha Kumar has appeared for the State. It has been submitted by Ms. Grover the there has been interpolation in the FIR inasmuch as a line was added towards the end of the statement of Karamvir in which one Ram Chander s/o Sibba r/o village Khera Khurd has been introduced as an eye witness. She has further submitted that the natural witnesses who could have been available at the place of occurrence have intentionally not been examined by the prosecution and aforesaid Ram Chander is a chance witness. She has also submitted that the investigation has not been fair and in fact was tainted inasmuch as the Investigating Officer had made interpolation in the application sent for post-mortem examination. She has also submitted that the appellant was, in fact, present on his duty village Dubal Dham where he was working as a Chowkidar in the Forest Department and so could not possible have committed this offence. A prayer has, therefore, been made for his acquittal.

3. The learned counsel for the State has, on the other hand, submitted that the appellant has not been able to lead any evidence to prove his plea of alibi and the prosecution story stands fully proved from the testimony of Karamvir and Ram Chander eye witnesses. She has further submitted that the testimony of the eye witnesses finds corroboration from the Pharsa, the weapon of offence, found near the place of incident and Dr. L. T. Ramani has made a categorical statement that the injuries found on the dead body of Ram Chander alias Rama (deceased) could be caused by this weapon. She has further submitted that blood was found on the clothes of the accused which he was wearing at the time of his arrest which also is a corroborative piece of evidence. In this way, the submission of the learned counsel for State was that trial Court has correctly found appellant guilty.

4. Before discussing the aforesaid submissions it would be necessary to narrate the facts briefly.

5. On 4th April, 1984 while posted at Police Station Narela ASI Udey Singh (PW 5) received information and while accompanied by police officials reached the spot near Barawala field and found dead body of Ram Chander alias Rama in a pool of blood. He met Karamvir s/o Shri Ram Chander alias Rama (deceased) and recorded his statement. It was, inter alia, stated by Karambir that he along with his family was residing in village Khara Khurd and has been agriculturist by profession. They had sown cucumber in the aforesaid field. On that day at about 6.30 a.m. his father had gone to the fields for removing the weeds from the fields when he had taken along with him a Khurpa. Karamvir also left his house some time later for going to the fields. He was still at a distance of 1 1/2 or 2 kilas from his own fields when he heard the cries of Bachao Bachao raised by his father who was running towards the village having Khurpa in his hand and was chased by Balwan Singh accused. At that time Balwan Singh was proclaiming that he would not leave him (Ram Chander) alive and at about 7.00 a.m. he inflicted injuries on the right cheek and neck of Ram Chander as a result of which he fell down and died. Karamvir chased Balwan Sigh but was unable to apprehend him. It was also claimed by Karamvir that on account of old enmity his father was killed by Balwan Singh.

6. ASI Undey Singh made his endorsements on the statement of Karamvir and rukka was sent to police station on the basis of which FIR. No. 100 was recorded and the investigation was taken up by Inspector Uma Chand Kataria (PW 10).

7. The Investigating Officer got the dead body and the spot photographed and took inquest proceedings. He arranged to send the dead body along with the inquest papers to the mortuary for post-mortem examination and lifted blood, blood controlled (stained) earth from the spot besides other exhibits from the field of the deceased. One Pharsa was found lying near the place of incident which was got photographed and thereafter seized by him after converting it into sealed parcel.

8. Balwan accused was arrested by the Investigating Officer Inspector Uma Chand Kataria (PW 18) on 7-4-84. Accused-appellant was at that time wearing blood stained clothes Exts. P6 and P7. These clothes were seized by the Investigating Officer after converting them into sealed parcel. The exhibits were sent to the CFSL wherefrom reports were received. During investigation opinion of Dr. L. T. Ramani was obtained to the effect that the injuries found on the body of Ram Chander could be caused by the Pharsa. After completing the investigation the accused was challaned.

9. During trial Balwan appellant denied all the allegations and claimed that he has falsely been implicated in this case. He took up the plea of alibi and stated that on the day of the incident he was not present in village Khera Khurd and was actually on duty as a Chowkidar, Forest Department at Dubbaldham village. He wanted to produce evidence in defense but subsequently made a statement on 22-8-86 to the effect that he did not want to produce any witness in defense. The learned trial Court after hearing arguments convicted and sentenced the accused as referred to above.

10. The main submission of the learned counsel for the appellant has been that there has been delay in the recording of the FIR and in fact interpolations had been made in the statement of Karamvir which forms the basis of the FIR. It has, therefore, been submitted that this ground alone is sufficient to cast doubt on the varacity of the prosecution story on the basis of which the appellant can claim acquittal. There is no dispute with regard to the legal proposition. In case an accused is able to indicate from the evidence on the record that the recording of the FIR has been delayed or there have been interpolations in the statement forming the basis of the FIR it casts doubt on the prosecution story and so an accused is entitled to get benefit. In the instant case, however, we have no hesitation in holding that the FIR has been recorded at the earliest and so there is no interpolation at all in the statement of Karamvir, which forms the basis of the FIR.

11. Kishan Singh (PW 3) is the person who gave information to the police thereby bringing the police machinery in motion. He has stated that on 4-4-1984 on coming to know about this incident gave information to P.C.R. S.I. Laxmi Narain was working in the P.C.R. and has claimed that on 4-4-1984 at 7.26 a.m. he correctly recorded D.D. No. 195 (copy Ext. PW 19A). This information was conveyed to him by Kishan Singh s/o Chand of village Khera Khurd. A perusal of the document shows that the information conveyed by Kishan Singh was about the murder of his uncle. H. C. Raghbir Singh (PW 9) was working as Wireless Operator who on getting information had recorded D.D. No. 5B (Ext. PW 9/A) on the basis of information conveyed by ASI Laxmi Narain. Constable Ashwani Kumar (PW 15) correctly recorded DD No. 5B (copy Ext. PW 3/DA) in P. S. Narela to the effect that Kishan Singh from Khera Khurd gave information about the murder of his uncle in the fields. ASI Udai Singh while posted at P. S. Narela received copy of DD No. 5B upon which while accompanied by constables came to the spot and found the dead body of Ram Chander. He went on to state that he correctly recorded statement Ext. PW 1/A of Karamvir on which he recorded his correct endorsement Ext. PW 5/A and rukka was sent to the police station through constable Mohar Singh for the registration of the case and that the investigation was entrusted to the SHO. PW 8 H. C. Vijay Singh while working as Duty Officer P. S. Narela recorded FIR Ext. PW 5/B regarding which an entry was also made in the daily diary register copy of which has been proved as Ext. PW 8/A. There has not been any cross-examination of these witnesses in respect of the aforesaid facts. Constable Santosh Kumar (PW 12) has claimed that on 4-4-1984 he started from the police station at 10.15 a.m. and delivered special report of this case in the Court of Metropolitan Magistrate at 2.15 p.m. He has during cross-examination admitted that the special report was not handed over by him personally to any Magistrate but he gave it to some official of the Court.

12. A perusal of the endorsement Ext. PW 5/A of ASI Udey Singh shows that the rukka was sent by him from the spot at 9.15 a.m. There is a mention in the FIR about the sending of special report through Constable Santosh Kumar. There is no doubt that apparently Constable Santosh Kumar has taken a long time for the delivery of the special report to the Ilaqa M.M. but he has come forward with an explanation that there was Delhi Bandh on that day and so it explains the time taken by him for the delivery of the special report. In any case there has not been any cross-examination of the material witnesses to show that the FIR was not recorded at the given time or that it was recorded subsequently and wrong time of recording the same has been mentioned. This incident took place at about 7.00 a.m. regarding which information was conveyed to P. S. Narela at 7.50 a.m. as is clear from Ext. PW 7/DA. Considering all these facts we have no hesitation in holding that there has not been any delay in the recording of the FIR.

13. The learned counsel for the appellant has submitted that initially there was no mention of any eye witness by Karamvir in his statement Ext. PW 1/A which forms the basis of the FIR but subsequently last two lines have been written introducing Ram Chander s/o Shiba as a false witness of this occurrence. We have carefully gone through the original statement of Karamvir Ext. PW 1/A and are clearly of the view that nothing has been added subsequently and a reading of the statement makes it clear that no witness has been introduced at a later stage. We may note that the last words of the statement of Karamvir are 'Byan Sunliya Thik Hain' and prior to it the name of Ram Chander has been mentioned as a witness of occurrence. If really the name of Ram Chander was not written earlier the last words quoted above would have appeared before the name of Ram Chander. In these circumstances, we find no force in this submission of the learned counsel for the appellant.

14. The learned counsel for the appellant has submitted that Karamvir (PW 1) is the son of the deceased Ram Chander and so an interested witness. She has further submitted that Ram Chander is otherwise an interested witness and prosecution has intentionally not examined the persons who could be present in the adjoining fields. The law is well settled that evidence of interested witnesses cannot be discarded on account of they being interested or related to the deceased. The only precaution to be taken is that the testimony of such witnesses has to be scrutinised thoroughly. It is also well settled that evidence is to be weighed and not counted. Once the Court finds the testimony of the witnesses examined to be trustworthy no adverse inference can be drawn against the prosecution for having not examined other witnesses who may have seen the occurrence. Reference in this regard can be made to the case Pal Singh v. State of U.P., 1979 Cri LJ 917 and Ramesh v. State 1980 Rajdhani LR 203 (Del). It is in the light of this proposition of law that the statements of the two eye witnesses have to be scrutinised.

15. Karamvir (PW 1) has made a categorical statement that on 4-4-1984 at about 6.30 a.m. his father had gone to the fields and he left the house at about 7.00 a.m. and saw his cousin Balwan accused hitting his father with a Pharsa. According to him Balwan had given a Pharsa blow on the right cheek of his father and thereafter on his neck. This incident had taken place at a distance of about half kilometre outside their fields towards his fields on hearing the alarm raised by his father who was running towards the village from his fields and was chased by the accused holding a Pharsa in his hand. He has also stated that Balwan was at that time saying that he would not leave him (Ram Chander deceased) alive. During cross-examination he has admitted that he did not go to report the matter to the police station, nor tried to give information even on telephone. He has also admitted having made no efforts to remove his father to the hospital, nor having made any request to anyone for lodging a report to the police. He has, however, given an explanation by saying that he chased the accused up to some distance who escaped and that he fainted at the spot and on regaining consciousness he found the police present. We do not find anything unusual in the conduct of Karamvir. There is nothing unusual in the claim of Karamvir on his having fainted on finding his father lying in an injured condition who in fast succumbed to the injuries at the spot itself. It would be the natural conduct of a relation like son to make an attempt to apprehend the assailant. In these circumstances, no adverse inference can be drawn against Karamvir. There is no doubt that he has referred to the inflicting of two injuries to his father by the accused while according to Dr. L. T. Romani (PW 14) there were six incised wounds. We may, however, note that Karamvir was going towards his fields and had seen this occurrence from a distance when his attention was attracted towards his father who was raising alarm. In such circumstances no one is expected to count the number of blows and no adverse inference can be drawn against the prosecution from the fact that Karamvir has narrated about the inflicting of only two injuries to his father by the appellant.

16. Another submission of the learned counsel for the appellant had been that may be that there was some other assailant of Ram Chander (deceased) and the accused-appellant has been falsely implicated may be on account of mistaken identity. We do not find any force in this submission. This incident took place at about 7.00 a.m. in the month of April. We can take judicial notice that it is not dark at 7.00 a.m. during the month of April. Admittedly, Balwan appellant is a resident of same village where witness resides and Karamvir has made a categorical statement of having even chased the appellant up to some distance. In these circumstances. There could hardly be any possibility of mistaken identity. This argument, thus, has to be rejected. We may also note that the natural instinct of a relation will be to see that the real culprit is punished and not to falsely implicate an innocent person. There is no basis to hold that the appellant has falsely been implicated in this case.

17. Ram Chander (PW 2) has claimed that on 4-4-1984 at about 7.00 a.m. he had gone to the vacant land of Gaon Sabha in village Khera Khurd to answer the call of nature and on hearing the shouts of 'Bachao Bachao' coming from the side of the fields of Ram Chander (deceased) he noticed Balwan accused having Pharsa in his hand chasing Ram Chander (deceased). He went on to state that Balwan at that time was saying that he would not leave Ram Chander alive and had seen the accused giving two Pharsa blows hitting on the right cheek and neck of Ram Chander as a result of which he fell down. He went on to state that Balwan 'accused ran towards girls' school in Naya Bazar with Pharsa in his hand and had seen the accused throwing the Pharsa in the shallow water in the pond while running. Admittedly his fields were at some distance from the fields of the deceased but there is nothing unusual in his claim of having gone to the fields in the morning to answer the call of nature. According to this witness other residents of the village were also going to the fields to answer the call of nature but he was not certain if those persons had also seen this incident or not. He has claimed that he was not a witness in the litigation between father of the accused and the deceased and denied that he was making a false statement. Merely because his fields were at a distance from the place of incident cannot be considered to be a ground to discard his testimony. We may also note that the name of this witness finds mention in the statement Ext. PW 1/A of Karamvir which forms the basis of the FIR and was recorded at the earliest. We do not find any material on the record so as to discard the testimony of this witness or to hold that he was not a truthful witness.

18. The learned counsel for the appellant has submitted that the learned trial Court has wrongly concluded that blood found on the clothes of the accused at the time of his arrest was a factor supporting the prosecution story. The case of the prosecution has been that Inspector Udai Chand Kataria (PW 18) arrested the accused on 7-4-1984 at about 6.00 p.m. when he was wearing blood stained Kurta Ext. P6 and Pyjama Ext. P7 which were seized vide seizure memo Ext. PW 13/A after converting them into parcels sealed with the seal of 'MST'. He has been corroborated in this regard from the testimony of PW 13 S.I. Om Dutt. According to Inspector Uma Chand Kataria clothes of the accused were got changed by borrowing clothes from somebody while according to S.I. Om Dutt, ASI Megh Singh brought the clothes of the accused but did not know wherefrom those clothes were brought. PW 16 Ram Mehar has been examined as an independent witness of arrest of the accused and seizure of the aforesaid clothes. He has supported the prosecution story but claimed that the time of arrest of the accused was 6.00 or 6.50 a.m. and he did not know wherefrom the clothes were brought which were given to the accused for wearing. It appears that Ram Mehar has given the time of arrest as 6.00 a.m. inadvertently and we do not find any reason to disbelieve the testimony of the other two witnesses to the effect that the accused was arrested in the evening.

19. The question for consideration, however, is as to whether the recovery of these clothes should be considered as evidence against the appellant. The exhibits of this case were sent to CFSL wherefrom reports Exts. PX, PY and P were received a perusal of these reports indicated that the clothes of the deceased were found to be stained with human blood of 'O' group while the shirt and Pyjama of the accused were found to be stained with human blood but the examination about the blood group was inconclusive. Admittedly, the blood of the appellant was not taken for examination to ascertain whether the blood found on his clothes was his own blood or the blood of the deceased. There is a positive evidence to the effect that the appellant was wearing these clothes at the time of occurrence. The appellant is an agriculturist and the possibility of the clothes having his own blood cannot be ruled out. In these circumstances, we are clearly of the view that the presence of blood on the clothes Ext. P6 and Ext. P7 of the appellant cannot be an incriminating evidence against him.

20. The learned counsel for the State has submitted that the prosecution has proved by positive evidence on the record that the appellant had used Pharsa Ext. P1 for the inflicting of injuries to Ram Chander (deceased) and he left the same at the spot. She has further submitted that the statement of the eye witness in this regard finds corroboration from the testimony of Dr. L. T. Ramani who conducted post-mortem examination and also the presence of human blood on Ex. P1. The learned counsel for the appellant has, however, submitted that the Pharsa in fact was not recovered at the time at which it is claimed to have been recovered by the prosecution and it was only on this account that it was not sent to the doctor along with the dead body. She has even submitted that this part of the prosecution story has rightly been not accepted by the learned trial Court. It would be necessary to quote the relevant portion of the judgment of the learned trial Court as under :-

"Ext. PW 14/B is the application that was filed by the Investigating Officer for post-mortem. There is no reference of Pharsa, because in normal course, if the Pharsa had been recovered on the date of the occurrence itself as the prosecution wants the Court to believe, the Pharsa would have been sent for the opinion of the doctor on the same day along with the body of the deceased. In the present case, in fact, the Pharsa was sent for opinion of the doctor on 26-6-1984 vide application Ext. PW 18/B. There are no good reasons for such a delay that are forthcoming. The conclusion is obvious that the Pharsa was not available or recovered on the date of occurrence."

21. A perusal of the evidence shows that Karamvir (PW 1), Ram Chander (PW 2) and Inspector Uma Chand Kataria (PW 18) have made categorical statements with regard to the recovery of Pharsa Ext. P1. They have also claimed that sketch Ext. PW 1/G of the Pharsa was prepared and thereafter it was seized vide seizure memo Ext. PW 1/H. Mohan Lal (PW 4) has stated that he and his brother are doing business as a photographer under the name of 'Subhash Studios', Railway Road, Narela and that about one year back at about 6.30 a.m. he was taken to the fields outside village Khera Khurd and had taken the photographs of dead body, Pharsa and other articles at the instance of the police. He had proved photographs Exts. PW 4/8-14 developed from negatives Exts. PW4/1-7. There has not been any cross-examination of this witness. The photograph Ext. PW 4/8 is of Pharsa. In these circumstances, we have no doubt in our mind that the Pharsa Ext. P1 was recovered by the police 4-4-1984 itself and it was photographed by Mohan Lal (PW 4) at the time at which he took the photographs of the dead body. In these circumstances, there can possibly be no question of having any doubt with regard to the recovery of the Pharsa.

22. The next question for consideration is as to whether there was any valid and cogent reason for the Investigating Officer in not sending the Pharsa to the doctor along with the dead body for getting his opinion. We find that the Investigating Officer found blood stains on the Pharsa Ext. P1 which was seized after converting it into a sealed parcel. In these circumstances, we are clearly of the view that the Investigating Officer was expected to get it examined from CFSL to find out about the presence of blood before sending it to the doctor for getting his opinion as to whether the injuries found on the deceased could be caused by the said pharsa or not. Had the Investigating Officer sent the Pharsa to the doctor along with the dead body an opportunity would have been available to the appellant to urge that blood may have been put on the Pharsa at the time of conducting the post-mortem examination. We are, thus, clearly of the view that no adverse inference can be drawn against the prosecution on account of the non-sending of the pharsa Ext. P1, to the doctor along with the dead body. Both the witnesses Karamvir (PW 1) and Ram Chander (PW 2) have claimed that while running away Balwan accused had thrown Pharsa Ext. P1. Karamvir has denied that he made available this weapon to the police. Dr. L. T. Ramani (PW 14) has stated after the examination of Pharsa Ext. P1 that he could not rule out the possibility of it being the weapon of offence in respect of the injuries of Ram Chander. His statement has not been challenged by way of cross-examination. There is no doubt that the reports from the CFSL indicate the presence of human blood on this Pharsa but there was no reaction for the determination of the blood group. However, this evidence clearly corroborates the oral testimony of Karamvir (PW 1) and Ram Chander (PW 2) that this Pharsa Ext. P1 was used by Balwan appellant for the inflicting of injuries to Ram Chander resulting in his death.

23. The learned counsel for the appellant has submitted that Balwan was, in fact, not present in village Khera Khurd at the time of the incident and, in fact he was on his duty at village Dubal Dhan working as Chowkidar in the Forest Department. In this way, according to the learned counsel the appellant could not have committed this offence. We are afraid no evidence is available on record to substantiate this claim. The law is very well settled that in order to succeed in his plea of alibi a person has to bring on record material to show that on account of his presence at another place it was practically impossible for him to be present at the place of incident. In criminal cases the burden is on the prosecution to prove the commission of offence by an accused but the moment an accused takes up the plea of alibi it is for him to prove the said plea by cogent and convincing evidence. In the instant case in his statement under S. 313 Cr.P.C. Balwan accused desired to produce evidence in defense but subsequently made a statement on 22-8-1986 that he did not want to produce any witness. It is thus clear that he has not led any evidence in support of the plea alibi. The learned counsel for the appellant has also not been able to point out anything in the testimony of the witnesses examined by the prosecution to support this plea of the appellant that he could not be present at the time of the incident. As against this plea we have the reliable testimony of two eye-witnesses Karamvir and Ram Chander about the inflicting of injuries to Ram Chander (deceased) by Balwan accused-appellant.

24. The learned counsel for the appellant has also submitted that the investigating officer has not been fair during the investigation of this case. According to the prosecution story the deceased was having a Khurpa in his hand when he was found lying dead. This Khurpa is visible even on the photographs proved by Mohan Lal (PW). Application Ex. PW/B was sent with the inquest papers and the dead body to the mortuary by Inspector Uma Chand Kataria in which there is a mention of Khurpa. Dr. L. T. Ramani (PW 14) conducted post-mortem examination on the dead body and did not find any Khurpa in the hands of the deceased. PW 18 Inspector Uma Chand Kataria has admitted that Ex. DX is the carbon copy of application Ex. PW 14/B. However, a perusal of this document shows that there is no mention of Khurpa in it. Obviously, the Investigating Officer made interpolation in the application later on. PW 18 Inspector Uma Chand has claimed that the Khurpa was produced before him by the constable in the mortuary which he took into possession vide memo Ext. PW 7/A. He, however, stands contradicted by Constable Sardar Singh (PW 7) when he claimed that it was produced by him before S.I. Om Dutt. We can, therefore, conclude safely that the investigating officer has not been fair in the investigation on this aspect. However, this fact has no adverse effect on the prosecution story to the effect that it is the appellant and appellant alone who has committed the murder of Ram Chander. It is not the case of the prosecution that Khurpa was in any way used in the commission of the offence.

25. While chasing Ram Chander (deceased) Balwan appellant made his intention clear by saying that he would not leave him alive and the thereafter he inflicted Pharsa blows on Ram Chander who succumbed to the injuries at the spot. Dr. L. T. Ramani (PW 14) conducted post-mortem examination on the dead body of Ram Chander and opined that injuries over the neck were sufficient to cause death in the ordinary course of nature and death was due to haemorrhagic shock resulting from injuries. Considering all this evidence we are clearly of the view that the appellant has intentionally committed the murder of Ram Chander and has rightly been convicted for the offence under S. 302, I.P.C. Even the sentence awarded to him is the minimum provided under law.

26. We do not find any force in this appeal and so the same is dismissed.

27. Appeal dismissed.