State (Delhi Administration) vs Balbir Chand And Ors.
1990 Latest Caselaw 355 Del

JUDGMENT

Jaspal Singh, J.

(1) On December 5. 1979 Sh. Joginder Nath, Additional Sessions Judge, acquitted Balbir Chand Alias Billa, Mohan Lal, Ramesh Kumar, Bansi Lal, Ashok Kumar and Nafis charged under Sections 302, 147, 14 and 323 of the Indian Penal Code. The State, feeling aggrieved, has filed this appeal.

(2) The case of the prosecution falls into a short compass. Its essentials may be recapitulated. The occurrence is of December 15, 1978. Time about 12:15 P.M. Jagdish was the name of the deceased. The First Information Report was lodged by his nephew Surinder Kapur, who, at that time, was a student of Gurukul Higher Secondary School situated at Ram Bagh, Kishan Ganj, Delhi. He entered into the witness box as. witness No. 2 of the prosecution. Besides him, the others alleged eye witnesses to the occurrence are Ram Parvesh and Harminder Singh (Public Witness s 3 and 4 respectively). The summum-bonum of the evidence is that on the day of occurrence while Surinder Kapur was coming out of his school, the deceased and Ram Parvesh met him They were on their way to recover the money Sent to Ashok Kumar accused by the deceased, Surinder Kapur also accompanied them. When they reached near Lalit Hosiery which was at distance of about fifty or sixty yards from the school, they noticed Ashok Kumar, Bansi Lal and Mohan Lal standing on the raad. The deceased made the demand to which Ashok Kumar retorted : "Sale Kaise Paise ?" However, Mohan Lal reacted more sharply. He wondered now the deceased had dared to come to their place of work, ask for money and thereby heap an insult on them Soon thereafter, Ashok Kumar and Bansi Lal called Nafis, Balbir Chand alias Billa and Ramesh Kumar. They were exhorted by Ashok Kumar to kill Jagdish as he had insulted them, whereupon Ashok Kumar and Bansi Lal felled Jagdish on the ground, and held him from his legs while Balbir Chand @ Billa. after having stationed himself on his chest, gave blows on his face with a stone (Ex. PI) weighing about 3 5 kilograms. Mohan Lal accused also did not lag behind. He brought an iron angithi (Ex. P-3) and inflicted injuries on his face with it. Soon thereafter, the accused took to their heals. Ram Parvesh and Harminder Singh chased them but without success. Jagdish was taken to the hospital by Ram Parvesh where he was declared dead.

(3) Though what has been noticed above, completed the prosecution version of the occurrence, one fact has, however, been left out so far and, purposely. It is that while running away Balbir Chand @ Billa accused had fallen down as result of which he had sustained some bleeding injury on his mouth. This part of the prosecution version having played a pivotal role in the conclusions arrived at by the learned Sessions Judge, we thought of giving it a place of prominence. In fact, as we shall reveal in the succeeding paragraphs, the injuries on the person of Balbir Chand @ Billa accused, have weighed quite heavily with us as well.

(4) The other aspects of the prosecution version relate to investigation and medical evidence besides the reports of the Central Forensic Science Laboratory. Only the essentials need be mentioned. The Investigating Officer is Sub Inspector Pritpal Singh (Public Witness -22). While on patrol duty, he reached the place of occurrence, found Surinder Kapur ana Harminder Singh present there, recorded the statement of Surinder Kapur (Ex. Public Witness 2/A) and sent the same Along with his endorsement to the police station for registration of a case. Soon thereafter, he received copy of Daily Diary No. 15-A (Ex.PW 14/D) informing him of the death of Jigdish This entry had been made at the Police Station on the basis of the information furnished by the Duly Constable(PW-18) at Hindu Rao Hospital where Jagdish had been taken. The Sub Inspector then rushed to the hospital, obtained the Mlc (Ex. Public Witness 7/A), came back to the place of occurrence, took into possession the slope (Ex. P-l), the angithi (Ex.P-3), arrested Ram Kumar Mohan Lal and Balbir Chand @ Billa, prepared the injury sheet (Ex. Public Witness 10/A) of Balbir Chand and got him medically examined Later the Inquest Report (Ex. Public Witness 22/D- 1 to Ex. Public Witness 22/D-5) was prepared and the dead body was sent for post-mortem and reports of the Central Forensic Science Laboratory (Ex. Public Witness 22/E-1, P-2 and E-3) were obtained. Though this covers the essential feature of the investigation, three facts remain to be mentioned. The first, that- the Inquest Report was prepared on December 16, 1978 (the occurrence had taken place on the 15th). The second, that the; Special Report, as per Constable 0m Parkash (Public Witness -2C), was delivered to the Metropolitan Magistrate at 10:AM. on the 16th, and the third, that in the daily diary the names of the assailants, the particulars of the weapon of offence and the names of the eye witness were not mentioned.

(5) As regards the reports of the Central Forensic Science Laboratory. the only point which need to be emphasised is that the stone (Ex. P 1) was not found to be besmeared with human blood, and that the angithi was never sent to the Laboratory.

(6) As regards medical evidence, the post-mortem was conducted by Dr. Bharat Singh (Public Witness -9). He found as many as nine injuries on the face of the deceased including four lacerated wounds and as many abrasions. He found no fracture of the skull though the nasal bone bad been found fractured. However, what is worth noticing is the fact that all the lacerated wounds were found covered with fluid or clotted blood and as per the doctor the injuries which proved to be fatal could be caused by the stone (Ex.P-l) as well as by striking against any hard surface including stony edge of a payment.

(7) DR.R.P.SARASWAT (Public Witness -8) had examined Balbir Chand Billa accused. His report is Ex. Public Witness -8/A On examination, he had found the following injuries on his person : "(1)Upper right central inciser was missing and left central inciser was shaky and also lower left inciser was shaky. I referred him to dentist for opinion. No fresh injury was seen over the gum. (2) Swelling over middle of upper lip."

(8) At this stage, it may be mentioned that as per the statement of Balbir Chand alias Billa as under Section 313 of the Code of Criminal Procedure, on noticing the deceased quarrelling with some persons, he had intervened. This was resented by the deceased who struck his face with his head as a result of which he received serious injuries and that ' when he went' to the Police Post to report, he was involved in this case.

(9) As already noticed, the prosecution version did not find favor with the learned trial Judge. As per him, the prosecution version with regard to the injuries on the person of Balbir Chand alias Billa could not be believed and that the version given by the accused was more worthy of reliance. He also found that the alleged eye witnesses had failed to inspire confidence and that their claim to have witnessed the occurrence could not be accepted an Gospel truth. He also found their evidence contradictory on material particulars.

(10) The State, obviously, is not satisfied with the judgment and the conclusion arrived at. It sees pot holes spread all over. Has the trial Judge really so misdirected himself? Before we venture to answer, we have to keep in mind that this happens to be an appeal against acquittal. Undoubtedly, in an appeal against acquittal, the powers of the High Court are not different from its powers in ordinary appeal against conviction. The statute puts no letters on the plenary power to review the evidence. Indeed it is duty bound to scrutinise the probative material de novo, keeping, however, in mind that an acquitted accused should not be put in peril of conviction on appeal save where substantial and compelling grounds exist for such a course Before reaching its conclusions upon fact. she High Court should and will always give proper weight and consideration to such matters as (1) the views. of the trial Judge as to the credibility of the witnesses, (ii) the initial presumption of innocence in favor of the accused, which has to be further strengthened to some extent by virtue of the order of acquittal ; (iii) the right of the accused to the benefit of reasonable doubt and(iv) the slowness of an appellate court in disturbing finding of fact arrived at by a judge who had the advantage of seeing the witnesses. And, let us remember that these are not Jurisdictional limitations, but judge-made guidelines of circumspection.

(11) Time now, to come into grip with the real issues.

(12) We have already noticed above the injuries found on the person of Balbir Chand alias Billa accused They are quite serious in nature. As per the prosecution Balbir Chand alias Billa had sustained injuries as a result of a. fall while running away after the commission of the offence. The learned trial Judge refused to accept it on the ground that had Balbir Chand alias Billa fallen on ground with force with face downward as stated by Surinder Kapur and Parvesh, then, in the ordinary course of nature, the injuries would pot have remained confined only to his teeth and lip He would have sustained injuries on other parts of his body also. We tend to agree with him. As per Dr. Sareswat (Public Witness -8) the injuries in question would be possible only if the fall is with force. It this be so. ordinarily some injuries must be caused on some other parts of the body also such as nose, hands and knees etc. Their total absence rules out the possibility of their having been caused by a fall and reinforces the stand of the accused that the injuries were caused by the deceased when he struck his head against his mouth. It need hardly be mentioned that failure to satisfactorily explain the injuries sustained by an accused at about the lime of the occurrence is a very important circumstance from which the court may, in appropriate cases, draw the inference that either the prosecution has suppressed the genesis and the origin of the occurrence, or that the witnesses are lying on a most material point and, therefore, their evidence is not worthy of reliance, or that it renders the defense version more probable so as to throw doubt on the prosecution case.

(13) It is in evidence of the alleged eye witnesses and so also in. the statement of the Investigating Officer that the place of occurrence is in a congested locality with shops, other commercial establishments, a school and. residential houses spread all round. This is further borne out from the site plan. From the statement. of Public Witness .00 4 Harminder Singh, it appears that eight to ten person had collected at the lime of the occurrence. What are the trying to emphasise is that here is a case where independent, uninterested witnesses from the public were available to the Investigating Officer at his elbow, and yet none has been cited or examined. On the contrary, the prosecution has examined three witnesses who can neither be termed as independent nor uninterested. Surinder Kapur (Public Witness -2) is the nephew. Ram Parvesh, the brother and Harminder Singh a neighbour and a close friend of the deceased. And, what is more important is that even these witness have not emerged. unblemished.

(14) Let us first take Surinder Kapur. He studies in a school which admittedly is quite near to the place of occurrence. His school timing was from 7.30 A.M. to 12.40 P.M This is borne out from the statement of the Principal of the school (Public Witness -5) and one of its teachers (Public Witness -19). However, as per Surinder Kapur he had met the deceased and Ram Parvesh at the gate of the school at 12 noon. He gives a reason for being there forty minutes before the closing lime of the school As per him there was a cricket match and for that reason the school had closed early. This is a patently false explanation. We say so because as per Public Witness -19, who is one of the teachers in the school, the school had been, as usual, closed at 12:40 PM. on December 15 also. Of course he does say that there was a practice cricket match in the school premises on that day, but makes it clear that only the team members were relieved for refreshments and that too at 12.30 P.M and that Surinder Kapur was not a member of the cricket teams. Has the witness thus not contrived this presence at the scene of occurrence by giving a palpably false explanation" How can such a witness be considered to be worthy of reliance ? And we are still not finished with him.

(15) We are told that the deceased was rushed to the hospital by his brother Ram Parvesh and that thereafter, Surinder Kapur and Harminder Singh had remained at the place of occurrence. How is it that neither of them thought of contacting the police ? Surinder Kapur admits that there is a telephone installed in his school There is a "typing school" nearby which too has a telephone. Consequently, the police could be easily contacted. Why no effort was made ?

(16) As already noticed above, as per Surinder Kapur he had joined the deceased and Ram Parvesh at 12 noon and it was thereafter that they bad contacted Ashok Kumar accused. The entire occurrence took place thereafter. However, as per Harminder Singh (Public Witness -4) he had noticed Surinder Kapur and Ram Parvesh for the first time when angithi, blows were being given to the deceased. If that be so, Surinder Kapur and Ram Parvesh stand condemned by their own witness.

(17) The prosecution, with a view to show that Surinder Kapur was present at the scene of occurrence, has relied upon the medical evidence comprising of the statement of Dr. S. Chaudhary (Public Witness -1) and her report Ex. PW1/A. As per her, the had examined Surinder Kapur on December 15, 1978 at 6.05 PM. and had found an abrasion 1/2" x 1/4' x 1/4" over his right band dorsal aspect and index finger dorsal aspect" and that the colour of the wound was "dark brown due to clot and scab formation" She further opined that duration of the injuries was "6 to 7 hours". As per Surinder Kapur be had received injuries on his hand while trying to ward off angithi blow. We believe that this is a version which too is far from truth. We owe the responsibility to furnish ihe reason. It is provided by the medical evidence. Dr. Chaudhary, as noticed above, had found scab formation which was dark brown in colour. True, she says that the duration of the injuries was six to seven hours and as she had examined him at 6 05 P.M. the injuries would be taken to have been caused around the actual time of the occurrence. However, she was cross-examined at length about the scab formation and had to admit that not being an expert in forensic science, the could not quote any authority in support of her version of scab formation Rather, she stated : 'I do not know anything about any book." This being her state of knowledge, let us have a took at some of the authoritative books on the subject. The first to which we would like to make a reference is Dr. S. C. Basu's Hand Book of Medical Jurisprudence and Toxicology It says that an abrasion with bright red scab would be 24 hours old while a reddish brown scab is formed in 2-3 days. Dr K.S. Narayan Reddy's The Essentials of Forensic Medicine & Toxicology also deals with the subject. It shows that a fresh abrasion would be bright red. In twelve to twenty four hours time the lymph and blood dries leaving a bright red scab and in two to three days it becomes reddish brown scab. Does all this not show that Surinder Kapur tried to take benefit of a two to three days old abrasion as having been caused during the occurrence ?

(18) One thing more before we shift on to Ram Parvesh. As per Surinder Kapur, the deceased bad received injuries not only on his face and dead but also near the left knee However, Dr. Bharat Singh (Public Witness -6) who conducted the postmortem nails the lie. He found injuries only on the face and forehead of the deceased and at no other place.

(19) Coming to Ram Parvesh he is none other but the elder brother of the deceased. He actually lives in Chuna Mandi, Paharganj but with a view to pose as a natural witness expected to be around the place of occurrence, he falsely gave his residential address as Beri Wala Bagh. It is he who took the deceased to the hospital. He gave no history to the doctor in attendance. He even met the Duty Constable (Public Witness -18). To him also he told nothing about the occurrence. The Duly Constable, consequently, while conveying the information to the Police Station said nothing about the occurrence. about the assailants or the weapons of offence (See Ex. Public Witness 14/). What is of equal significance is that the exact place of occurrence was also not disclosed to the Duty Constable Why this sphinx-like silence ? Does it not show that he saw .nothing and new nothing?

(20) The third alleged eye witness is Harminder Singh. He is a neighbour and a close friend of the deceased besides being a chance witness. The reason of his being at the place of occurrence (coming back after meeting a friend) sounds hallow and unconvincing. Does it not appear to be strange that his neighbour and close friend not only reached the place of occurrence by chance but also at a time when the deceased was about to make a demand for money ? It sounds to be too good to be true. In any case, the analysis of his statement would make interesting revelations. They need to be highlight with requisite comments from our side. Here they are.-(1) He saw deceased standing with Bansi Lal. Ashok Kumar and Mohini (Mohan Lal) and demanding money. There be excludes totally the presence of Surinder Kapur and Ram Parvesh (Public Witness -2 and 3, from the scene of occurrence. (2) It was Mohini (Mohan Lal) who had stated that Jagdish be taught a lesson for demanding money. However, as per Surinder Kapur and Ram Parvesh it was Ashok Kumar who had exhorted to kill the deceased. Thus not. only the person changes, the content of the exhortation also changes. (3) It was Ashok Kumar who had called for Nafis and Ramesh Kumar. However, as per Surinder Kapur and Ram Parvesh it were Ashok Kumar and Bansi Lal who had called Nafis, Balbir Chand @ Billa and Ramesh Kumar. What is to be marked here is that there is not only an addition with regard to the callers but with regard to the persons called also (4) As per Surinder Kapur and Ram Parvesh. after Nafis, Balbir Chand @ Billa and Ramesh Kumar had come, Ashok Kumar stated that as Jagdish bad insulted them, be should be killed and it was only thereafter that the assault bad started. However, Harminder Singh does not Speak of any such exhortation 'after or before the arrival of Nafis, Balbir Chand @ Bill and Ramesh Kumar. (5) As per Harminder Singh it were Ashok Kumar and Bansi Lal who bad felled the deceased on the ground. However, Surinder Kapur and Ram Pervesh assign this role to Nafis and Ramesh Kumar. (6) Whereas, according to Surinder Kapur and Ram Parvesh after the deceased bad fallen on the ground. Ashok Kumar and Bansi Lal caught hold of the legs of the deceased, this part is conspicuous by its absence from the statement of Harminder Singh. (7) Whereas, according to Surinder Kapur. Balbir Chand @ Billa accused bad given stone blows to the deceased while silting on his chest. Ram Parvesh and Harminder Singh nowhere state that Balbir Chand @ Billa had sat on the chest of the deceased. (8) Whereas, according to Harminder Singh after the stone and angithi blows, Nafis and Ramesh Kumar had given fist blows to the deceased, the other two said witnesses assign no such role to them. Rather, as per Surinder Kapur : "Nobody else did anything else."

(21) Besides what has been recorded above, it may not be oat of place to mention that as per Harminder Singh before Ashok Kumar had called Nafis and Ramesh Kumar, the deceased had caught hold of Ashok Kumar from his shirt collar. Bosh Surinder Kapur and Ram Parvesh are silent about it. Harminder Singh has categorically staled, that after he had been caught, the deceased, with a view to release himself, had raised his leg. Significantly, on this aspect of the matter also, both Surinder Kapur and Ram Parvesh have said nothing.

(22) A word or two more on Harminder Singh. According to him, as soon us Balbir Chand @ Billa bad picked up the stone, Ashok Kumar and Bansi Lal bad run away towards Andha Mughal. This cats at the roots of the very prosecution version. And, what is important to note is that his statement was not challenged by the prosecution.

(23) We are conscious of the fact that one hardly comes across a witness whose statement would not contain a grain or two of untruth or embroideries and embellishments However, what we find here are contradictions and omissions which shake the very very genesis, the very fibre of the prosecution version. They shake the trustworthiness of the witnesses.

(24) We still have much more to say. We may recall that one of the weapons of offence is stated to be angithi(Ex. P-3). It was never shown to Dr Bharat Singh who had conducted the post mortem. There is no medical evidence that the injuries or any one of them could be caused by it As if all this was not enough, it was not even sent to the Central Forensic Laboratory. The angithi being irregular in shape, we believe the injuries caused by it would also have been irregular in shape. No such injury was detected. To crown it all, in column No. 12 of the Inquest Report (Ex. Public Witness 22/D-1) against the question "In what manner with what weapon of instrument such marks of injuries or violence appear to have been caused the answer is "The injuries have been caused with stone". The signatories to the Inquest Report are none other but Surinder Kapur, Ram Parvesh and Harminder Singh. What does one make of it? A tortured technicality ? We fell it make the entire edifice raised by the prosecution crumble to the ground.

(25) The other weapon of offence is stone Ex.P-l. We arc informed that this 3.5 kg heavy stone is the villain of the piece. Before we deal with it, we may mention that the post-mortem report' would show that the injuries could not be caused by striking the stone only once. It must have been struck repeatedly. This finds support from the ocular evidence as well. It is also in evidence that blood had gushed from the injuries. (See Ex. Public Witness 22/DA). It had not only fallen on the ground it was also found splashed on the nearby wall and on a stone embedded in the pavement. Thus it is impossible to believe that had the injuries been caused with the stone Ex. P:l. it would not have received blood stains. Ordinarily, it should have been besmeared with blood all over. However, as per the report of the Central Forensic Science Laboratory no blood was detected on it. One thing more, We have already reproduced in the preceding paragraph column No. 12 of the Inquest Report, It speaks of "stones" and 'a stone". And all this recorded at the instance of the alleged three eye witnesses. The stone stones the prosecution version to death.

(26) We are also told that the statements of the witnes.scs had been recorded and the F.I.R. had been registered much before the arrival of the crime team at the place of occurrence. The team had arrived at 6.15 P.M. It directed the Investigating Officer : "The eye witnesses be thoroughly examined and the act of the individual criminals be verified" and ; "The motive behind the crime be ascertained." It the witnesses had already been examined and from their statement, the motive of the crime had already been ascertained, where was the need for such instructions ? Or is it that till then the statements had actually not been recorded ?

(27) The learned trial Judge has held that the F.I.R. was not recorded at the given time, i.e. 1.30 P.M. For that he relies upon the report of the Crime team referred to in the preceding paragraph. He also relies upon the fact that Harminder Singh does not speak of the recording of the statement of Surinder Kapur at the spot. He also refers to the that the next F.I.R. was recorded at 5.47 P M on December 16 leaving sufficient gap of time. He also draws force from the fact that in the Daily Diary the names of the assailants, the particulars of the weapon of offence and the names of the witnesses to the occurrence were not mentioned. He also takes note of the fact that the special report reached the Illegal Magistrate more than twelve hours after the alleged recording of the F.I.R. It may be mentioned that even the Inquest Report was not prepared with due promptitude. Though we may not attach much importance to the timing of the subsequent Fir, keeping.in view the facts and circumstances of the case in their totality, we do not consider the trial Judge to be unjustified in his conclusion.

(28) The learned trial Judge has given the accused the benefit of doubt. It is not the doubt of a timid mind fighting shy of the consequences. if the benefit is not given. He has nowhere missed the wood for the trees. "We add our voice to bis. The appeal is dismissed.