Naushad @ Bhura vs State
1996 Latest Caselaw 638 Del

JUDGMENT

K.S. Gupta, J.

(1) This appeal by Naushad @ Bhura is directed against the judgment dated August 28, 1993 and order dated August 30, 1993. of an Additional Sessions Judge, Delhi, whereby he was convicted and sentenced to undergo imprisonment for life under Section 302 of the Indian Penal Code (hefeinafter referred to as 'IPC').

(2) The case of the prosecution in nutshell is that an information conveyed on telephone at about 11.45 Am on April Ii, 1991, in regard to assault on the head of a person with a hammer at premises No.A-253 (25 yards), Raghbir Nagar by Lady Constable Saroj (2693/PCR) was recorded in the Daily Diary at serial No.6 at Police Post Raghbir Nagar by Constable Rattan Chand Public Witness 12 and copy thereof was entrusted to Head Constable Azad Singh Public Witness 14, who alongwith Constable Virender Kumar Public Witness 7 left for the above place for inquiry. Yet another information received through telephone around 11.45 Am from 0m Parkash, Duty Constable, Rml Hospital, that Harpal Singh has been admitted in injured condition by Manjit Kumar Public Witness 3, was recorded vide Daily Diary No.8 at Police Post Raghubir Nagar and a copy thereof was handed over to Asi Mahinder Singh Public Witness 18 with instructions to take appropriate action. PW18 alongwith Constable Davinder Kumar Public Witness 15 reached Rml Hospital and collected medico legal certificate (for short 'MLC') Ex.PW5/A of Harpal Singh who was declared unfit for making statement by Dr.Yogesh Marual Public Witness 8 at 1.15 PM. Thereafter Public Witness 18 alongwith Public Witness 15 left for premises No.A-253 and on reaching there Sis Pal Public Witness 2, who claimed to be an eye witness of the occurrence, met them. Public Witness 18 recorded the statement Ex.PW2/A of PW2 around 3.55 Pm and after making the endorsement Ex.PW9/A that statement was sent by him through Public Witness 7 Virender Kumar for registration of a case and on the basis thereof Fir No.309/91 (carbon copy Ex.PW9/B) was recorded under Section 307 Indian Penal Code by Head Constable Hazari Lal Public Witness 9 against the accused. It is further stated that Asi Mahinder Singh Public Witness 18 lifted the sample blood from the spot and took the same into possession vide memo Ex.PW14/A. Hammer Ex.P1 allegedly used for assault, after preparing the sketch Ex.PW2/B, was further taken into possession vide memo Ex.PW2/D by Public Witness 18. Harpal Singh succumbed to the injuries on April Ii, 1991 itself and an intimation to that effect conveyed by Om Parkash Duty Constable at 6.15 Am was recorded vide Daily Diary No.17, copy Ex.PW10/C. Si Kishan Chand Public Witness 17, who conducted further investigation, prepared the inquest report Ex.PW13/D and sent the body of the deceased for post-mortem alongwith application for post-mortem Ex.PW13/C etc. On April 12, 1991 postmortem was conducted by Dr.L.K.Barua Public Witness 13 and Ex.PW13/A is the autopsy report. Inspector Rajinder Singh, Sho, Public Witness 16 took over the investigation from Public Witness 17 on April 15, 1991 and he arrested the accused on April 16, 1991 after he surrendered in court. He' also got scaled site-plan Ex.PW10/A prepared and filed the challan on completion of investigation against the accused under Section 302 IPC.

(3) In his statement under Section 313 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.'), the plea taken by the accused is that he borrowed Rs.2,000.00 from Harpal Singh in 1989 for starting business of manufacturing scissors. He started the business with that amount and the money collected from other sources at his house in Subhash Mohalla, Mauzpur. However, he could not manage to return the loan amount to Harpal Singh. One day prior to the date of occurrence Harpal Singh alongwith his brother Sis Pal came to his house and demanded the money back. On inquiry as to what amount he had to pay, he was told to pay Rs.5,000.00 including the interest. There was exchange of hot words in between him and Harpal Singh on the quantum of money payable by him and Harpal Singh alongwith Sis Pal thereafter left the house. Sis Pal was running his own workshop in Brahmpuri in those days and on the date of incident he was seen by the people at his workshop from morning till 2.30 PM. He has emphatically denied that he assaulted Harpal Singh or that Sis Pal was present at the place of occurrence, as alleged.

(4) Rias Ahmad DW1 and Ishtiq Khan DW2 have been examined in support of the plea that Sis Pal was running a workshop at Brahmpuri and was present at the workshop from morning till 2.30 Pm on the date of occurrence. During the course of argument, Sh. I.U.Khan appearing for the accused chose not to rely on the statements of both the DWs.

(5) Sis Pal Public Witness 2 is alleged to be the sole eye- witness of the occurrence and the fate of this case, therefore, hinges on his testimony. The contention advanced by Shri I.U.Khan was that Public Witness 2 was not present at the spot at the time the incident took place and he has been falsely introduced as an eye-witness by the prosecution. On this issue statements of Public Witness 2, Manjit Kumar Public Witness 3, Head Constable Azad Singh Public Witness 14 and Constable Virender Kumar Public Witness 7 are relevant. Public Witness 2 has deposed that he alongwith his elder brother Harpal Singh was running business at Shop No.A-253 (25 yards), Raghubir Nagar of manufacturing and repairs of scissors. Harpal Singh was to recover some money from accused Naushad @ Bhura being the loan amount. About a week prior to the occurrence accused had been employed at their shop and he told his brother to deduct the loan amount from his wages. When his brother wanted to deduct the amount of loan from the wages of the accused on 11th April 1991 at about 10.30 Am accused picked up a hammer and saying that neither his brother would remain alive nor he will have to pay the amount, he attacked Harpal Singh with the hammer on his head from the back side as a result whereof he fell down unconscious and started bleeding. Accused ran away leaving behind the hammer and could not be apprehended. He raised the alarm and Manjit Kumar having a shop in front of their shop came there and took his brother in a Tsr to hospital. He got perplexed because of the incident. Ex.PW2/A is the report made by him to the police. Hammer Ex.P1, after preparing the sketch Ex.PW2/B, was taken into possession vide memo Ex.PW2/D by the police and both Exs.PW2/B and Public Witness 2/D bear his signatures at point 'A'. In cross-examination he has stated that he knew the accused from childhood as he was having his house in front of their house. There was no altercation between his brother and the accused on the date of the occurrence. (Volunteered) Altercation had taken place between them a day prior to the occurrence. It is further in his cross-examination that the accused was working on a machine prior to the occurrence while his brother was breaking wooden pieces with a hammer outside the shop and the accused went to him from the place he was working. He was counting the scissors. Accused had already hit his brother twice or thrice with the hammer before he came out and in his presence accused further hit his brother 2-3 times with that hammer. Face of his brother was towards the shop while he was cutting the wood and the hammer Ex.PI was lying on the backside of his brother at a distance of 1-2 feet. He did not try to catch hold of the accused as he was very much afraid and upset and for that reason he also did not lend support to his brother. It is further in his cross-examination that he did not go to the police station nor did he send anyone there to lodge a report. Ex.PW2/A was recorded in between 3.30 to 4 Pm at the police station after the police completed the formalities. He has emphatically denied the suggestion that neither he was present at the spot nor had he seen the occurrence.

(6) Public Witness 3 has deposed that on 11th April 1991 at about 10.30 Am on hearing the alarm from the shop of Public Witness 2 he went there and found Harpal Singh lying unconscious on the ground in a pool of blood. Public Witness 2 who was present there, told him that Naushad @ Bhura gave hammer blows on his head from the back side. He removed Harpal Singh in a Tsr and got him admitted in the hospital. In cross-examination he has stated that Harpal Singh was lying on the thara in front of the shop at a distance of two paces from the entrance of the shop. He and Guru Panwari lifted and put Harpal Singh in a Tsr and both of them accompanied him to hsopital. He has admitted the suggestion that Public Witness 2 neither touched Harpal Singh nor his clothes got blood stained and that he did not tell Public Witness 2 to lend support in lifting Harpal Singh as he was very much perplexed, crying and weeping. It is further in his cross- examination that the hammer was lying near the head of Harpal Singh on the thara at a distance of about one foot from his head. He has, however, emphatically denied this suggestion that Public Witness 2 was not present at the shop and on being informed about the incident he reached there at 2.30 Pm and that he did not remove Harpal Singh to hospital.

(7) Public Witness 14 has deposed that on receipt of copy of Daily Diary No.6 Ex.PW12/A he alongwith Public Witness 7 reached premises No.A-253 and found the hammer Ex.P1 and blood lying at a distance of three feet. On inquiry he came to know that Harpal Singh was hit with the hammer Ex.PI by the accused. He deputed Public Witness 7 to call senior officer and also the photographer at the spot while he remained guarding the spot. After sometime Public Witness 7 came back with a photographer and he told him that Asi Mahinder Singh Public Witness 18 has already left on call for Rml Hospital. After some time Public Witness 18 alongwith Constable Davinder Kumar Public Witness 15 reached the spot and Public Witness 18 recorded the statement of Sis Pal PW2 at about 2.30 Pm in his presence. That statement after making endorsement was sent by Public Witness 18 through Public Witness 7 to the Police Station for registration of a case. Place of occurrence was at a distance of about 300 yards from Police Post Raghubir Nagar and he alongwith Public Witness 7 reached there within ten minutes. Sis Pal Public Witness 2 told him about the incident but he did not record his statement and thought it fit to summon a senior officer.

(8) Likewise is the statement of Public Witness 7.

(9) In the Mlc Ex.PW5/A Manjit Kumar Public Witness 3 is shown to have got admitted Harpal Singh deceased in Rml Hospital. His presence at the spot, thus, cannot be doubted. Accused has not been able to bring on record any material affecting the credibility of Public Witness 3 and, therefore, there seems to be no reason to disbelieve him that when he reached the shop of Public Witness 2 Sish Pal on hearing the alarm he found Public Witness 2 present there and Public Witness 2 told him that it was accused who assaulted Harpal Singh with a hammer on his head from the back side. Further, suggestion put to Public Witness 3 in cross-examination to the effect that he did not tell Public Witness 2 to lend support in lifting the deceased and Public Witness 2 neither touched the deceased nor his clothes got blood stained clearly go to show that presence of Public Witness 2 at the spot at the time the incident took place was not even doubted by the accused.. It is a matter of common knowledge that different persons react differently to a given set of facts. From the depositions of both Public Witness 2 and Public Witness 3 it may be noticed that Public Witness 2 was taken aback by the occurrence and was not in a proper frame of mind -at the time deceased was being taken to hospital by Public Witness 3. Therefore, merely on the basis of the circumstance as pointed out by Shri Khan that neither Public Witness 2 assisted Public Witness 3 in removing the deceased in the Tsr nor did he accompany him .to hospital, no inference can legally be drawn that Public Witness 2 was not present at the place of occurrence.

(10) It may further be noticed from the depositions of both Public Witness 14 and Public Witness 7 that on receipt of copy of Daily Diary No.6 Ex.PW12/A (recorded at 10.45 AM) they reached the spot, which is at a distance of about 300 yards from Police Post Raghubir Nagar where they were posted, within ten minutes and there they found Sis Pal Public Witness 2 present. Statements of both these Public Witness s, thus, probabilise the presence of Public Witness 2 at the spot at the time the incident took place besides rendering the defense plea that Public Witness 2 arrived at the spot at about 2.30 Pm unbelieveable. Considering the said evidence, presence of Sis Pal Public Witness 2 at the spot at the time the occurrence took place is proved beyond any shadow of doubt.

(11) Connected with the submission referred .to above, further contention advanced by Shri Khan was that Sis Pal Public Witness 2, being brother of the deceased, is a partisan witness and his testimony is inconsistent with the medical evidence on record. Reliance was placed on Ram Ashrit Ram and others Vs State of Bihar, 1983 (1) Crimes 130, wherein it has been laid down that if a prosecution witness appears to be an interested one, his testimony requires close and severe scrutiny before it is acted upon.

(12) POST-MORTEM on the body of Harpal Singh deceased was conducted on April 12, 1991 by Dr.L.K.Barua Public Witness 13 and relevant portion of his deposition runs as under:

"ON external examination of the body, the following injuries were found.- 1. One stitched wound on the right occipitoparietal area placed antero posteriorly of size 6 cms; 2. One zig-zag stitched wound seen over left parieto occipital region of length 16 cms with 18 stitches; 3. One abrasion on the left side of the neck in an area of 6 cms x 5 cms; 4. Abrasion of size 4 cms x 3 cms seen on dorsal aspect of right forearm. Internal Examination

(13) After removal of stitches from the scalp the borders of the muscle of the wound was seen lacerated and torn. There was clotted blood underneath the scalp tissue; the blood was more over area against the stitched wounds.

(14) Skull bones showed the depressed fracture on left temporal bone in an area of 5 cms x 4 cms and seen extending to the right occipital area through the left occipital area.

(15) Another depressed fracture was seen on left occipital bone in an area of 3 cms x 2 cms; brain showed generalised subdural haemorrhagic clots all over the cerebral hemispheres and more on right parieto temporal area right temporal was seen lacerated. Base of the skull was seen fractured at middle cranial fossa - the injuries were ante-mortem caused by hard heavy object and were sufficient to cause death in the ordinary course of nature. Injuries to head were sufficient to cause death in the ordinary course of nature individually. Death in this case was due to coma resulting from head injuries - I gave this opinion after seeing the weapon i.e. hammer Ex.P1. After examining hammer Ex.P1, 1 was of the opinion that the injuries on the body of the deceased could be possible by it."

(16) In cross-examination he has stated that injuries on the head could be caused by striking the hammer easily from the back. Ex.PW13/A is the autopsy report in the hand of Dr.Barua Public Witness 13,

(17) Argument advanced by Shri Khan was that as per the deposition of Sis Pal Public Witness 2, 4-6 blows were given by the accused on the head of the deceased with the hammer Ex.P1 but the injuries as noted by Dr.Barua Public Witness 13 are far less in number. From the statement of Public Witness 13 it may be seen that the deceased was having two wounds on the left and right parieto occipital regions besides fractures at three different places. These wounds and fractures were definitely caused by more than one hammer blow if not 4 to 6. Observations made in State Vs Anil Singh, , which are highly relevant read thus:

"It is also our experience that invariably witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is a reason to believe that inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty roan does not escape. One is as important as the other. Both are public duties which the Judge has to perform."

(18) In the statement Ex.PW2/A on the basis whereof the case was registered against the accused, Sis Pal Public Witness 2 has not given the actual number of blows inflicted on the deceased. Statement of Public Witness 2 was recorded by the trial court after about 1-1/2 years of the occurrence and, therefore, the possibility of his having faulted as regards the number of blows inflicted because of fading of memory due to lapse of time cannot be ruled out altogether. On close scrutiny of the statement of Sis Pal Public Witness 2, who has stood the test of cross-examination well, we see absolutely no reason to disbelieve him in the main that 535 it was the accused alone who assaulted the deceased with the hammer Ex.P1 as deposed to by him. Therefore, the said inconsistency was not so glaring as to destroy the credibility of the statement of Public Witness 2. The contention referred to above advanced on behalf of the accused is thus repelled being devoid of merit.

(19) This brings us to yet another submission advanced by Shri Khan that there was unexplained and inordinate delay of about 5-1/2 hours in lodging the report of the occurrence by Sis Pal Public Witness 2. Endorsement Ex.PW9/A appearing on the statement Ex.PW2/A of Public Witness 2 shows that rukka was sent at 3.55 M for registration of a case by Asi Mahinder Singh Public Witness 18 through Constable Virender Kumar Public Witness 7 and on the basis thereof case was registered at 4.05 Pm against the accused. As is manifest from the statement of Head Constable Azad Singh Public Witness 14, as discussed earlier, he alongwith Public Witness 7 must have reached the spot around Ii Am on receipt of copy of Daily Diary No.6 where Sis Pal PW2 met him; that he instead of recording the statement of Public Witness 2 deputed PW7 to call senior officer and the photographer and it was Asi Mohinder Singh Public Witness 18 who recorded the statement Ex.PW2/A after he reached the spot rom hospital. Sish Pal Public Witness 2, Constable Virender Kumar Public Witness 7, Head Constable Azad Singh Public Witness 14 and Asi Mohinder Singh Public Witness 18 have, however, contradicted each other regarding the time Public Witness 18 reached the spot from the hospital. As per the deposition of Public Witness 2, Public Witness 18 reached the spot at 12.45 PM. PW7 has deposed that Public Witness 18 arrived at the place of occurrence at about 11.15 or 11.30 Am while according to Public Witness 14 he reached there at about 12.30 PM. PW18 has stated that on receipt of copy of Daily Diary No.8, Ex.PW12/B, he alongwith Constable Davinder Singh Public Witness 15 reached Rml Hospital and obtained the Mlc Ex.PW5/A of Harpal Singh and as he was declared unfit for making a statement he came to the spot and recorded the statement Ex.PW2/A of Public Witness 2 and sent the same after making endorsement Ex.PW19/A through Public Witness 7 to the Police Station for registration of a- case. In cross-examination he has stated that he recorded the statement Ex.PW2/A on the spot after he reached there at about I Pm but he could not give the exact time. After seeing the statement Ex.PW2/A he has stated that he recorded the said statement at 3.55 Pm and till then he continued to make inquiries at the spot. As is evident from the endorsement Ex.PW8/A made on the Mlc Ex.PW5/A by Dr.Yogesh Marual Public Witness 8, Harpal Singh was declared unfit for making a statement by him at 1.15 PM. Distance between Rml Hospital and the spot is 15 kms and about 45 minutes time is taken to cover that distance as deposed to by Constable Davinder Kumar Public Witness 15. Public Witness 18 alongwith Public Witness 15, therefore, may have reached the spot at about 2 or 2.15 PM. Thereafter some time may have been taken by Public Witness 18 in conducting inquiry at the spot, waiting for Public Witness 2 who seems to have left the place of occurrence temporarily and in recording his statement before the rukka was sent at 3.55 Pm for registration of case to Ps Rajouri Garden. Public Witness 14 had come to know about the commission of the offence by the accused immediately after he reached the spot from Public Witness 2 and if he chose to defer the recording of the statement of Public Witness 2 till arrival of Public Witness 18, 536 PW2 cannot be blamed for that. We are satisfied that the statement Ex.PW2/A was recorded at the spot instead of at the Police Station as stated by Sis Pal Public Witness 2. That being so, delay in recording the Fir stands explained satisfactorily and possibly no advantage can be derived by the accused of the delay in recording the Fir in this case.

(20) It was lastly urged on behalf of the accused that there is no evidence on the record to show that a copy of Fir was sent to Ilaqa Magistrate soon after the recording of the Fir as required by Sections 154 and 157 of the Code of Criminal Procedure and non-compliance in that behalf casts a shadow of doubt about the truthfulness of the prosecution case. Reliance was placed on Bir Singh & Others Vs State of U.P., and Mahavir Singh & Another Vs State, 1979 Cr.L.J. 1159. In Bir Singh's case (supra) it was held by the Supreme Court that the factum of despatch of a copy of the Fir to the Duty Magistrate must be proved like any other fact. In the case of Mahavir Singh (supra) on page 1164 of the report it was observed, thus: "No doubt the non-compliance of Sections 154 and 157 of the Code or that of the Rules does not constitute a ground to throw away the prosecution case but it does emerge as a factum to be seriously reckoned with while appreciating the entire evidence. Its non-observance is bound to cast some shadow on the case obviously to its detriment because of the adverse inference. Its degree depends upon facts of a particular case."

(21) Public Witness 9, who was working as Duty Officer and recorded the Fir (carbon copy Ex.PW9/B) in cross- examination has stated that he sent the special reports to the senior officers and area Magistrate during his duty hours at about 4.30 Pm but he did not remember the name of the messenger. Counsel for the accused seems to have felt satisfied with the veracity of this part of the deposition and did not probe him further in the matter. On the face of this statement it is not open to urge that there has been breach of the provisions contained in the said Sections. Assuming that there has been non-compliance of the provisions contained in above said two sections, that by itself in the circumstances of this case is not sufficient to hold that the prosecution story as it stands is highly doubtful.

(22) Admittedly accused borrowed Rs.2,000.00 from the deceased in the year 1989 to start business. Dispute in regard to repayment of that amount alongwith interest seems to be the motive to commit the intentional murder of Harpal Singh by the accused.

(23) Trial Court relying on the deposition of Sis Pal Public Witness 2 had, thus, rightly convicted the accused- appellant under Section 302 of the Indian Penal Code in terms of the impugned judgment.

(24) The appeal has no merit and is, therefore, dismissed.