Kailash Nath vs State
2000 Latest Caselaw 1160 Del

JUDGMENT

Usha Mehra, J.

1. Kailash Nath has assailed the order of this conviction and sentence passed by the learned Additional Session Judge, Delhi, thereby convicting him and giving him sentence of rigourous imprisonment for life under Section 302/34 IPC and a fine of Rs. 1000/-, in default of payment of fine to further undergo simple imprisonment of two years. Further convicted and sentenced under Section 324/34 IPC for one year and fine of Rs. 500/- in default of payment of fine to further undergo simple imprisonment of three months.

2. The appellant Kailash Nath has assailed that order of his conviction and sentence primarily on the ground that he was not named by the complainant, the injured Tara Chand (PW-7) nor any Test Identification Parade (TIP) was conducted. Even pointing out was not done of the appellant by the witnesses in the Court while their examination Was recorded. He had been roped in at the instance of police subsequently. Eye witness gave the name of actual assailant along with his parentage and address. The said accomplice was neither interrogated nor arrested. The said accomplice actually existed and his name appears in the FIR. He had been all along available at the address given by the injured Tara Chand (PW-7). The person named in the FIR namely Shashi, son of Tek Chand, r/o Sat Nagar, Karol Bagh was produced by the accused as DW-1. This shows prosecution fabricated case against him. Even in the supplementary statement of Tara Chand, the injured, name of the appellant did not figure. Tara Chand (PW-7) in his supplementary statement gave the name of the assailant as one "Bholu". He nowhere stated that appellant was known by the name of "Bholu. The fact that appellant was also known by the name of "Bholu" had not been put to him when he stepped into the witness box to make his statement under Section 313 Cr.P.C. Hence identity of appellant had not been established.

3. In order to appreciate the challenge raised by Mr. Dinesh Mathur, Senior Advocate for the appellant, it would be appropriate to know in brief the facts of the case. The story of the prosecution unfolds thus, that on 29th November, 1988 (wrongly written as 29th November, 1986 in Ex. PW-7/A) Dharamvir @ Lama, Bille son of Pratap, r/o 100 Quarters, Karol Bagh, Delhi and their two other companions whom he did not know quarrelled with Tara Chand (PW-7). In order to save himself he ran to his house. On the next day Dharamvir @ Lallu was arrested by the police. He, however, was bailed out subsequently.

4. On 5th December, 1988 to 730 P.M. Sunil son of Shri Ram and Matin Qureshi were standing facing towards the Nallah at the corner of the street No. 42, Beadon Pura and wee talking at that time, Dharamvir @ Lallu, Bille s/o Pratap and Shashi @ Dari s/o Tek Chand r/o Sat Nagar, Karol Bagh, Delhi came there at about 7.45 P.M. Dharamvir @ Lallu threatened he would teach Tara Chand, PW, a lesson today for getting him arrested. On this Bille and Shashi caught hold of Tara Chand (PW-7) by his arms. Dharamvir @ Lallu inflicted knife blow on the back side of his right thigh. Tara Chand (PW-7) ran towards Arya Samaj Road in order to save himself. Dharamvir @ Lallu loudly shouted that he would not leave him alive. When Sunil tried to caught hold of Bille, at this Bille and Shashi caught hold of Sunil and exhorted Dharamvir @ Lallu; "DEKHTA KYA HAI MAAR SAALE KO JAANSE" (Mean's: what for he was looking, finish that rascal. On this Lallu inflicted knife blow on the neck of Sunil. Tara Chand (PW-7) raised alarm, on hearing his alarm Gopal @ Bobby brother of Sunil reached at the spot. At this all the three accused person succeeded in making their escape good. While running these persons threatened by way of brandishing knife. Tara Chand (PW-7) witnessed this incident in the light of the electric pole. Sunil was taken to Dr. R.M.L. Hospital by his brother Gopal and Tara Chand (PW-7) injured by his brother Nand Kishore on a Three-wheeler scooter. Doctors declared Sunil brought dead whereas Tara Chand was given medical treatment. According to Tara Chand (PW-7), Dharamvir @ Lallu, Bille and Shashi collectively tried to kill him and actually killed Sunil by making murderous assault on them. On the statement of Tara Chand (PW-7) Rukka was recorded on 5th December, 1988 vide Exhibit PW-7/A.

5. Prosecution examined as many as 34 witnesses. defense examined only one witness. Out of the witnesses examined material witnesses whose statement has bearing on this case and are relevant for determination of this appeal are, namely, Gopal (PW-1), brother of deceased Sunil, Nand Kishore (PW-6) brother of Tara Chand (PW-7) Jugal Kishore (PW-8) alleged eye witness, Prem Parkash (PW-15), SI Gopi Chand (PW-16), Smt. Shanti Devi (PW-20) mother of Tara Chand (PW-7), Puran Mal (PW-25), Record Clerk, Dr. R.M.L. Hospital, who produced and proved the MLC of deceased Sunil Exhibit PW-25/A, Inspector R.P. Gautam (PW-33) I.O. of this case.

6. That Prosecution's star witness was Tara Chand (PW-7). On his complaint FIR in question was registered. Version given by Tara Chand (PW-7) in Exhibit PW-7/A in nutshell was that on 28th November, 1988 quarrel took place when Lallu @ Dharamvir, Bille son of Pratap accompanied by two more companions whom he did not know quarrelled with him. He saved himself by running to his house for safety. On complaint Dharamvir was arrested. After having been released on bail, Lallu @ Dharamvir came to Gali No. 42 on 5th December, 1988 to teach Tara Chand (PW) a lesson. He was accompanied by Bille, son of Pratap and Shashi @ Dari son of Tek Chand, r/o Sat Nagar, Karol Bagh, New Delhi. Prior to that Sunil, son of Shri Ram and Matin Qureshi were standing on the corner of Gali No. 42, Beadon Pura facing towards Nullah and were talking. Lallu @ Dharamvir threatened Tara Chand that he would teach him a lesson for getting him arrested. Bille and Shashi caught hold of his both the arms. Lallu @ Dharamvir inflicted knife blow on the back side of his right thigh as a result PW-7 sustained injuries. Tara Chand (PW-7) in order to save himself ran towards Arya Samaj Road, at this Lallu @ Dharamvir shouted loudly that today he would not leave him alive. Sunil tried to catch hold of Bille. On this both Bille & Shashi caught hold of Sunil and exhorted to Dharamvir @ Lallu thus "DEKHTA KYA HAI MAAR SAALE KO JAANSE" (What are you looking, kill this rascal). On this Lallu @ Dharamvir, who was having a knife in his right hand gave a knife blow on the neck of Sunil. Alarm was raised by Tara Chand (PW-7), hearing which Gopal @ Bobby, brother of Sunil, came there. All the three accused succeeded in escaping from the place of occurrence after brandishing the knife. The incident was witnessed by PW-7 in the light of electric pole. Sunil and Tara Chand were taken to Dr. R.M.L. Hospital by their respective brothers. Sunil was declared brought dead whereas Tara Chand was discharged after medical treatment.

7. The above is the sum and substance of the FIR. Tara Chand appearing as PW-7 in no uncertain words stated that he witnessed the occurrence in the light of electric pole. He knew Dharamvir @ Lallu and Bille son of Pratap from before. They had quarrelled with him on 29th November, 1988 for which police report was lodged and Lallu @ Dharamvir was arrested. Hence, he know from before accused Dharamvir and Bille son of Pratap. He also gave the name and all other particulars of the third accomplice of Lallu @ Dharamvir of the incident of 5th December, 1988. Third accomplice according to Tara Chand (PW-7) was Shashi @ Dari, son of Tek Chand, r/o Sat Nagar, Karol Bagh, New Delhi. He did not name Kailash Nath at any time while making his statement Exhibit PW-7/A the basis of FIR or even in his supplementary statement recorded on 6th December, 1988. He nowhere named Kailash Nath as the third accomplice. He corroborated his previous statement dated 5th December, 1988 but tried to implicate on Bholu vide his supplementary statement dated 6th December, 1988. According to supplementary statement after coming back home from the Hospital, on enquiry from his known persons he came to know that the third accomplice was "Bholu" aged about 20 years, 5-1/2 feet tall, fair complexioned and of stout body. According to him the said "Bholu" lived at Pahar Ganj. He used to do wrestling along with Lallu @ Dharamvir. The said Bholu caught hold of him and Sunil with the help of Bille. He could identify Bholu on being produced. He, however, did not point out at any tune and not even in the Court that Kailash Nath (appellant herein) was the said Bholu. Therefore, we find force in the submission of Mr. Dinesh Mathur, Senior Advocate that identity of the third accomplice remained doubtful. Even PW-20 Smt. Shanti Devi, mother of Tara Chand never said that she had seen Kailash Nath catching hold the arms of Tara Chand or of Sunil. According to her she knew from before Dharamvir @ Lallu and Raj Kumar @ Bille because of the occurrence which took place on 29th November, 1988. In her statement to the police Exhibit PW-20/A she stated that she came to know of the name of Kailash Nath later on. When questioned in the cross-examination she denied having said so, but when confronted with her statement Ex. PW-20/A she had to admit that she had said so. It is thus apparent that she tried to improve her version by saying that Kailash Nath was the third accomplice. This shows that Smt. Shanti Devi (PW-20) and her son Tara Chand (PW-7) tried to implicate Kailash Nath for reasons best known to them. In fact prosecution wants us to buy this story by believing that Tara Chand (PW-7) gave the name of Shashi alias Dari son of Tek Chand, r/o Sat Nagar at the instance of someone from the crowd who uttered that name. We are surprised how prosecution thought that this version would be believed by the Court unless, of course if some one is so dumb. In his complaint Ex. PW-7/A recorded immediately after the occurrence, Tara Chand not only gave the name of Shashi @ Dari but also his parentage and residence i.e. son of Tek Chand, resident of Sat Nagar, Karol Bagh, Delhi. If someone from the crowd shouted the name of Shashi then how could Tara Chand (PW-7) give his parentage and address.

For that there is no explanation. What prompted the police to record the supplementary statement of Tara Chand (PW-7) unless they wanted to implicate this appellant.Tara Chand (PW-7) did not explain who was that person who told him that third accomplice was "Bholu". The description of Shashi as given by PW-7 in Ex. PW-7/A clearly show that he knew him from before, otherwise he could not have furnished the details of said Shashi. The fact that there existed one Shashi @ Dari, son of Tek Chand, r/o Sat Nagar, stood proved from the testimony of DW-1. This shows that police or for (hat matter Investigating Officer did not bother to arrest Shashi @ Dari. The I.O. never took interest to investigate the case properly nor interrogated the said Shashi whose description was given in Ex. PW-7/A. Unfortunately the I.O. found out a short-cut of recording supplementary statement of Tara Chand and then implicate Kailash Nath. PW-7 implicated "Bholu" whose particulars he did not mention nor his identity was established on the record. But the prosecution without laying the foundation linked Kailash Nath the appellant with the said "Bholu". The fact that Kailash Nath was also known as "Bholu" has not been proved either by the testimony of Tara Chand (PW-7). Shanti Devi (PW-20), Jugal Kishore (PW-8) or by putting such a question to Kailash Nath when he appeared in the Court and gave his statement under Section 313, Cr.P.C.

8. Perusal of the complaint Ex. PW-7/A shows that whenever Tara Chand (PW-7) was not aware of the name of the accused he said so. For example while describing the incident of 29.11.1988 he stated that "on 29.11.86 Lallu @ Dharamvir, r/o Jagjiwan Niwas, Bille son of Pratap, r/o 100 Quarters, Karol Bagh, Delhi and, their two companions whom I do not know". This shows that Tara Chand (PW-7) was in the habit of furnishing full details of the person whom he knew from before while reporting the matter to the police. Person whom he did not know he stated so for the incident of 29th November, 1988 he not only furnished the name of the accused persons but also gave their residential address and the parentage. Similarly he furnished the details of the accused who assaulted him and killed Sunil on 5th December, 1988. It, therefore, follows that Tara Chand knew Shashi @ Dari from before that is why he not only gave Shashi's name but also Shashi's parentage and address. It does not appeal to reason that Tara Chand gave the name of Shashi because somebody from the crowd uttered so. Shashi @ Dari (DW-1), son of Tek Chand, r/o 10877, Gali No. 1, Sat Nagar, Delhi a person by that name and parentage actually existed, which fact stood proved from the testimony of DW-1. Name of Shashi @ Dari, son of Tek Chand, r/o Sat Nagar could not have been given by mistake. By recording supplementary statement prosecution tried to give a twist to the story given by PW-7 at the earliest opportunity. Prosecution tried to introduce on "Bholu" out of the blue and arrested this appellant without establishing the identity of "Bholu" also known as Kailash Nath.

9. Now the question arises; who was that Bholu? It has not been proved on record that the appellant herein i.e. Kailash Nath was known by the name of "Bholu". Tara Chand (PW-7) never stated that Kailash Nath was known by the name of Bholu. Statement of Shanti Devi (PW-20), mother of Tara Chand (PW-7) recorded vide Ex. PW-20/DA dated 7th February, 1989 indicated that 3-4 Young boys out of whom she knew from before Dharamvir @ Lallu and Raj Kumar @ Bille along with two other persons whom she did not know, came and started abusing and threatening her son Tara Chand. At that time Tara Chand was not present. She informed this fact to PS Karol Bagh at 8.45 PM. through telephone. Subsequently she came to know that another accomplice of Dharamvir was Kailash Nath. Who gave her the name of Kailash Nath has not been explained. But when those boys came to give threat, she knew from before only Dharamvir @ Lallu and Raj Kumar @ Bille. She did not know the name of other 2-3 persons who came with Dharamvir @ Lallu. At the first instance she did not name Kailash Nath. She implicated him subsequently when appeared in the Court. Hence no much reliance can be placed on her testimony.

10. Mr. Dinesh Mathur, the learned Senior Advocate has substance when he submitted that reason for recording the supplementary statement of Tara Chand (PW) arose because Kailash Nath the appellant was shown to him in the Police Station on 6.12.1988. After getting Kailash Nath shown to Tara Chand at police station, the I.O. arrested Kailash Nth on 7th December, 1988. That is why need arose to record supplementary statement of Tara Chand on 6.12.1988. In fact Tara Chand admitted this aspect of the matter at page 97 of the Paper Book which reads as under:-

"It is correct that name of Bholu is not mentioned in the statement, but the name of Shashi is mentioned". "That the Police has shown Bholu to me and I had told the Police that I had wrongly given his name as Shashi. I came to know at that time that Bholu resides at Pahar Ganj. Police had told me so at that time. I do not know the name of father of Bholu. I even do not know his age. I might have stated to the police later on that his name was Bholu and he was aged 20 years."

11. Reading of the above answer leaves no manner of doubt that the appellant was shown to the witness (PW-7) in the Police Station and the information that he was Bholu was fed to Tara Chand by the police. That is why his supplementary statement was recorded on 6th December, 1988. That after recording the supplementary statement Kailash Nath appellant herein was arrested on 7.12.1988. Tara Chand (PW) denied in his cross-examination that he told the police that Shashi was also known as Dari, son of Tek Chand and was resident of Sat Nagar, Karol Bagh. When confronted with the statement Ex. PW7/A it was found to be so recorded and Tara Chand had no explanation for the same. He has to admit when further subjected to cross-examination that:

"I had come to know that I had wrongly given the name of Shashi and his correct name was Bholu in the Hospital itself, by some one, but I do not remember who told me that his name was Bholle. The police had made enquiry from me later on even at my house. But I cannot say whether the police had recorded my supplementary statement or not."

12. This answer given by Tara Chand in the cross-examination does not in any way prove that he had wrongly given the name of Shashi or that it was actually Bholu or that the said Bholu was actually known as Kailash Nath. This shows that after having changed the name of the assailant he became shaky. That is why in the cross examination he said that he never told the police that Shashi was known as Dari or that he was resident of Sat Nagar. He even could not remember that his supplementary statement was recorded. In fact on this aspect he could not withstand the test of cross-examination.

13. PW-1 Gopal and PW-6 Nand Kishore proved that they took the deceased Sunil and injured Tara Chand to hospital. They had not witnessed the occurrence. Jugal Kishore (pW-8) had been made eye witness by the prosecution though Tara Chand (PW) never said in his statement Exhibit PW-7/A that Jugal Kishore was also present. He said Matin Qureshi was present. But said Matin Qureshi has not been examined. PW-8 Jugal Kishore in no uncertain words stated that he did not know how Tara Chand (PW) sustained injuries. He did not witness the occurrence. He was told by Tara Chand as to who stabbed him. He did not hear any one from the crowd naming Shashi @ Dari. He named Bholu because this name was given to him by Tara Chand (PW-7). He admitted having seen Bholu at the police station but did not remember whether on 6th December, or 7th December. This corroborates the contention of Mr. Dinesh Mathur that appellant was shown to the witnesses in the police station on 6th December, 1988 and thereafter appellant was arrested on 7th December, 1988. Prior to that no one named this appellant.

14. SI Gopi Chand (PW-16) said that SHO (PW-13) recorded the statement of accused Dharamvir who told that dagger was hidden in the house of Kailash Nath. This disclosure statement was recorded in his presence. He alongwith SHO and an independent witness Prem Parkash (PW-15) went to the house of this appellant and recovered the dagger. But Prem Parkash appearing as PW-15 denied the recovery of daggar in his presence. According to him his signatures were obtained on blank papers. Even otherwise disclosure statement is not admissible because it was made on 7th December, 1988 whereas recovery was effected on 8th December, 1988. Moreover, the place was already known to prosecution since Kailash Nath was arrested on 7th December, 1988. Thus the alleged recovery of dagger from the house of appellant, to our mind, has not been proved beyond a shadow of doubt.

15. Investigating Officer Inspector Gautam (PW-33) admitted that name of this appellant did not appear in the FIR Exhibit PW-3/A. He also admitted that he did not try to trace out Shashi @ Dari nor interrogated him at the given address. This shows clear carelessness on the part of the Investigating Officer which led to doubt about the identity of the third accused. Had the investigation been done properly the actual culprit would have been arrested. But unfortunately the Investigating Officer showed he was high and mighty, therefore, did not bother to interrogate Shashi @ Dari, son of Tek Chand. He did not feel it necessary to trace out and interrogate Shashi at the given address. He found out short cut to rope in the present appellant as an easy escape goat. Since appellant was shown to the witnesses in the police station on 6th December, 1988, therefore, appellant was justified to refuse to participate in the TIP. For his refusal in such circumstances no adverse inference could have been drawn. It has been rightly said that things are happening in public life which were never anticipated before and there are several instances for mis-use of powers by men in authority and position. This is a phenomena for which the Courts are bound to take judicial notice. Where such situation cry out the Courts should hot and cannot remain mute and dumb. In this case by implicating the appellant, it appears prosecution mis-used its authority and power and, therefore, Court cannot be a silent spectator nor mute nor dumb.

16. For the reasons stated above, we find that the conclusion arrived at by the learned Additional Sessions Judge cannot be supported. It is based on surmises and conjectures and not on the facts on record. On appreciation of evidence it cannot be concluded that Kailash Nath was the third accomplice of Dharamvir @ Lallu of the incident of 5th December, 1988. Hence the decision of the learned Additional Sessions Judge cannot be confirmed. The appeal is accordingly allowed. The order of conviction and the sentence passed against the appellant Kailash Nath are hereby set aside, but with no order as to costs. Appellant, if not required in any other case, be set at liberty. Order be communicated to the appellant through the Superintendent, Central Jail, Tihar.

17. The order be communicated to the appellant through the Superintendent, Central Jail, Tihar.