Kishan Pal vs State [Along With Crl. A. No. ...
2004 Latest Caselaw 319 Del

JUDGMENT

D.K. Jain, J.

1. These two appeals are directed against the judgment and order of the learned Sessions Judge, Shahdara, Delhi in sessions case No.375/95, arising out of the FIR No.482/94. Since both the appeals are interlinked, concerning the same incident, these are being disposed of by this common judgment.

2. The two appellants, namely, Kishan Pal and Bhagwan Dass (hereinafter referred to as the 'convicts') call into question their convictions for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short 'the IPC'), for allegedly causing homicidal death of Dinesh Kumar (hereinafter referred to as 'the deceased'). They have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.500/- each with default stipulation of rigorous imprisonment for one month each.

3. Prosecution version in nutshell is as follows:

On the night intervening 4/5 December 1994, on receipt of some information at Police Station Nand Nagri, Delhi, Inspector Suraj Goswami visited the place of incident but found that an injured person, namely, the deceased had been removed to the hospital. He visited Guru Teg Bahadur Hospital but the deceased was not found there. After visiting some neighbouring Nursing Homes, where no trace of the deceased was found, he returned to the Police Station. He was handed over a copy of the daily diary, recorded on the basis of statement of Har Prakash, elder brother of the deceased. On receipt of the said DD, Suraj Goswami and another constable reached the St.Stephens Hospital, where the deceased was found admitted. He collected the MLC wherein the doctor had opined that the patient had sustained dangerous head injury due to assault with a blunt instrument. The deceased was unfit for statement. Har Prakash stated before the Inspector that on 4 December 1994, at about 9:45 PM the convicts, who were reside (sic)ts of D-3 Block, came drunk in front of their house and started abusing him and his younger brother, namely, the deceased and when they objected, the convicts, who were carrying iron rods in their hands, exhorted that they had come to finish both of them and started beating the deceased with iron rods. His younger brother Purshottam telephoned the police. He along with his uncle, Bhagwat Prasad, removed the deceased to the hospital. Supplementary statement of Har Prakash was also recorded, wherein he (sic)amed two other persons, namely, Rattan Lal and Rajesh Kumar, having attacked them. The deceased unfortunately did not survive. Thus the FIR, registered initially under Section 308 of the IPC, was converted into Section 302 read with Section 34 IPC. On the basis of secret information received on 10 December 1994 convict Kishan Pal was arrested near Gagan Cinema, Delhi. On the basis of the disclosure statement made by Kishan Pal the iron rod used as weapon of offence was recovered from his house at D-97, Nand Nagri, Delhi. On 2 January 1995, convict Bhagwan Dass surrendered before the Court. He also made a disclosure statement and got recovered an iron rod from under his bed.

4. On completion of investigations chargesheet was filed against the two convicts Kishan Pal and Bhagwan Das, Rattan Lal and Rajesh Kumar.

5. To further its case, the prosecution examined as many as 17 witnesses. The convicts examined two witnesses in defense. Placing reliance mainly on the testimony of three eye-witnesses, PW-2, PW-3 and PW-4, namely, Har Prakash, Deep Chand and Purshottam respectively, the learned Sessions Judge has come to the conclusion that the evidence led by the prosecution is sufficient to bring home the guilt of the two convicts and thus convicted and sentenced them as aforesaid. He, however, gave benefit of do (sic)bt to accused Rattan Pal and Rajesh Kumar on the ground that their names did not find mention in the FIR as well as in the inquest proceeding. The learned Sessions Judge observed that the said two accused seem to have been falsely implicated in the case and their names had been added later in connivance with the police by the complainant party.

6.We have heard Ms.Kamna Vohra on behalf of the convict in Crl.A. No.109/97, Mr.Sumeet Verma as amices Curiae on behalf of the convict in Crl.A. No.81/97 and Mr.Ravinder Chadha on behalf of the State. Learned counsel have taken us through the trial Court's record.

7.It is strenuously urged by learned counsel for the convicts that the trial Court has seriously erred in relying on the testimony of the said three eye-witnesses, because their conduct in not disclosing the names of the assailants, who were known to the (sic)m, to the doctor is unnatural. It is contended that the said three eye-witnesses are not reliable witnesses in as much as : (i) in his statement to the police on 5 December 1994 PW-2 had named only two persons, namely, Bhagwan Dass and Kishan Pal as accu (sic)ed, whose names figured in the FIR but subsequently in his supplementary statement he added the names of the other two persons, namely, Rajesh and Rattan Pal; (ii) in the MLC, the cause/history for injuries given to the doctor by the victim's attendants as a fall from some height but later on they changed their version by saying that the victim was beaten by rods and stones by some persons but their names were not disclosed, meaning thereby that they did not know the names of the assailants. It is also submitted that the testimony of these three so-called eye witnesses is not worthy of any credence because there are material contradictions in them, namely, PW-2 has deposed before the Court that there was a dispute between the convicts and his uncle Bhagwan Prasad, PW-1, on payment of mess charges amounting to Rs.600/- or Rs.700/-, while PW-4 has deposed that there was a dispute regarding payment of rent; PW-2 has stated before the Court that his statement was recorded by the police at the spot while the investigating officer, Suraj Goswami, PW-16 has stated that the statement of the said witness was recorded in the hospital; PW-3 has stated before the Court that he along with PW-2 went to the Police Station at 5:35 AM where the statement of PW-2 was reorded by the police but there is no statement of PW-2, which was recorded by the police at the Police Station; PW-1 has stated that they had not taken the deceased to the Jyoti Nursing Home, whereas PW-2 has stated that they had also taken the victim to Jyoti Nursing Home and according to PW-2 the incident took place outside his house but as per the testimony of PW-3 it took place outside the house of convict Kishan Pal. It is, thus, urged that these material contradictions in the testimony of the three bye-witnesses raise serious doubts about their presence at the place of occurrence. Learned counsel would also submit that the stand of PW-2 to the effect that he and his other brother Purshottam were present at the place of incident is belied from the f (sic)ct that though in his statement dated 5 December 1994 (Ex. PW-7/A) before the S.I. Suraj Goswami, he had stated that both the convicts started hitting him and his brother with iron rods "forcefully"but not a single mark of injury was found on any part of his body. It is also submitted that PW-1, PW-2 and PW-4 being close relatives of the deceased and PW-3 being their close friend, all of them are interested witnesses and, therefore, their testimony cannot be believed to be reliable and trustworthy. It is also urged on behalf of the convicts that entire trial is vitiated because the prosecution has failed to explain the delay of 4-5 days in sending report of the incident to the Ilaka Magistrate under Section 157(1) of the Code of Criminal Procedure see also argued that the entire case put up by the prosecution is suspicious because no public witness was present at the time of alleged recovery of weapons of offence, which is a mandatory requirement in terms of Section 100(4) CrPC.

8.Per-contra, Mr.Ravinder Chadha, learned counsel for the State has submitted that the evidence on record clearly establishes that it is a case of murder and both the convicts have been rightly convicted and sentenced under Section 302 IPC. It is also urged that the presence of three eye-witnesses was natural as the incident took place outside their house and they had no reason to falsely implicate the convicts. Learned counsel has submitted that Rule 24.5 of their Punjab Police Rules only requires sending of special report to the Magistrate in a case under Section 302 IPC, while the present case was initially registered under Section 308 IPC. In support of the proposition that in the absence of any prejudice to the accused, the delay in submission of special report to the Magistrate does not vitiate the trial, learned counsel has placed strong reliance on the decisions of the Supreme Court in Anil Rai Vs. State of Bihar, and Pala Singh Vs. State of Punjab, . In nutsh(sic)ll, the stand of learned counsel for the State is that there has been no violation of the procedural requirements under the CrPC.

9.According to the prosecution the genesis of the incident, in which Dinesh Kumar, the deceased, met with his death, lay in the demand of money (Rs.600-700) by him from the convicts on behalf of PW-1, his uncle, whether by way of rent or mess charges. P W-2 and PW-4 are the real brothers of the deceased and PW-3 is their close friend. Obviously, as such they knew the names of the assailants. It is axiomatic that if they were really the eye-witnesses to the incident, as deposed by them, they knew that he convicts had inflicted the injuries on the deceased which proved fatal, and in that event they were in a position to disclose their names at the earliest opportunity. It is in evidence that PW-1, PW-2 and PW-4 accompanied the deceased to the hospital on 4 December 1994 at about 11:30 PM. As per the MLC, PW-1 disclosed to the doctor that the deceased was beaten by stones by some "known persons". However, no name was disclosed. It was only in his first statement to the investigating officer, namely, Suraj Goswami (PW-16) on 5 December 1994 that PW-2 named the two convicts as having hit the deceased by iron rods. As per the FIR, daily diary was recorded on 5 December 1994 at 5:15 AM on the basis of statement of PW-2. Significantly in his supplementry statement he named two other persons, who had hit the deceased with stones tied in a cloth.

10.Therefore, the first question for consideration is as to what is the effect of non-disclosure of the names of the assailants by PW-1, PW-2 or PW-4 to the doctor at the time of admission of the deceased in St.Stephens Hospital on 4 December 1994 at about 11:30 PM, approximately two hours after the incident.

11.Dealing with the question of delay in disclosing the name of the assailants, in Jagir Singh Vs. State (Delhi), 1975 SCC (Crl) 129, their Lordships of the Apex Court held that non-disclosure of name of the assailants, claimed to be previously known, at the first possible instance while admitting the deceased in the hospital and reporting the incident to the police constable on duty would be unnatural conduct, after admitting the deceased in the hospital and the conviction cannot be based on such testimony. In fact the concurrent finding of guilt recorded by the trial Court and affirmed by the High Court was set aside by the Supreme Court on this ground. Similar view has been expressed by the Supreme Court in Shivaji Dayanu Patil Vs. State of Maharastra, 1989 Supp (1) SCC 758 and Devinder Vs. State of Haryana, , and it has been held that where the name of the assailant is not disclosed at the earliest available opportunity, the accused was entitled to the benefit of reasonable doubt.

12.In the instant case, it is in evidence that while admitting the deceased in the hospital, PW-1 had stated before the doctor (PW-11) that the deceased had been beaten by stones by some "known persons". It is pertinent to note that this again was a changed version in as much as in the first instance the doctor was told that the deceased had a fall from height. It is also in evidence that Har Prakash (PW-2) had also accompanied the deceased to the hospital but he also did not disclose to the doctor the name of any assailant. It is intriguing that when both these eye-witnesses knew the assailants, who admittedly were the tenants of PW-1, why did they not disclose their names to the doctor. It is only in the early hours of 5 December 1994 that for the first time PW-2 gave the names of the convicts to the police. Significantly PW-2 again changed his version and subsequently gave the names of two more persons to the police, who according to him, had also given beating to the deceased by stones. It is inexplicable as to why PW-2 who claimed to be present at the spot and was also beaten by four assailants, chose to name only two persons in the first instance and withheld the names of other two assassins of his brother, to be disclosed later. All these circumstances, in our view, cast a serious doubt on the testimony of PW-1 and PW-2 and the convicts are clearly entitled to benefit of doubt on that score.

13.Furthermore, the evidence of PW-2, PW-3 and PW-4, on which the conviction of the convicts rests entirely, suffers from various other infirmities and contradictions. Bhagwat Prasad (PW-1), whose name appears in the MLC as the person accompanying the deceased, has stated in his evidence that they had not taken the deceased to Jyoti Nursing Home. On the contrary Har Prakash (PW-2), who in his evidence has stated that he along with his uncle (PW-1) had removed the deceased to hospital, in his cross-examination has denied the suggestion that he had removed his brother to St.Stephens Hospital because doctors at Jyoti Nursing Home had told him that being a medico-legal case they had to call the police, meaning thereby that the deceased was taken to Jyoti Nursing Home. Purshottam (PW-4) has also stated in his evidence that the deceased was taken to Jyoti Nursing Home. Thus, on the one hand, PW-4 corroborates the evidence of PW-2 but on the other contradicts the testimony of PW-1, when all of them claim to have accompanied the deceased to the hospital(s).

14.We shall now consider the evidence of Deep Chand (PW-3), adduced by the prosecution as an independent eye-witness to establish their case. His evidence will have to be considered in the background of our finding in regard to the evidence of PW-1 and PW-2 because it is in evidence that all through he was with PW-1 and PW-2. PW-3 has stated in his evidence that when he reached the place of incident, 4-5 persons were beating the deceased; he along with Har Prakash (PW-2) and Pushottam (PW-4) tried to escue him from the clutches of the assailants; none of them received any injury as the assailants had told them that their enmity was only with the deceased; nobody had telephoned the police in his presence but later on he learnt that somebody had informed the police; all the assailants were known to him for the last many years as they were his neighbours; though the statement of PW-2 was recorded by the police at the police station but his statement was not recorded on the date of incident; his statement was recorded only on 6 December 1994 and that he was on visiting terms with the family of the deceased for the last several years. Reading his evidence as a whole, in the light of evidence of PW-1 and PW-2, we are of the view that it does not inspire confidence. If not contradictory, it is definitely at variance with the evidence of the other two eye-witnesses.

15.It is true that merely because witnesses are related or interested, their evidence is not rendered suspect per se but it definitely requires deeper scrutiny. Having considered the evidence of PW-1 to PW-4 as a whole, we have grave doubt on the credibility of the prosecution version that PW-2, PW-3 and PW-4 have witnessed the incident. Their evidence casts a doubt even on the place of incident, namely, whether it was in front of the house of PW-4 or the convict Kishan Pal. Nothing has been pointeout to explain this discrepancy. Our doubt gets further strengthened from the fact that though PW-2 to PW-4 have stated that they tried to save the deceased when he was attacked by 4-5 assailants by iron rods and stones "forcefully"but curiously they did not sustain even a scratch on any part of their bodies.

16.Moreover, it has come in the evidence of Purshottam (PW-4) that on 4 December 1994 there was a party at the residence of convict Kishan Pal on the occasion of birth of his son and at about 9:30 PM all the four assailants started abusing and beating the deceased, meaning thereby that they all had been invited at the party despite the fact that there was some dispute over payment of Rs.600-700 by the convicts to his uncle Bhagwat Prasad (PW-1), which according to PW-2 and PW-4 was the root cause of the fight between the assailants and the deceased. Nevertheless, because of the birthday party some other guests must have witnessed the incident but except for PW-2, PW-3 and PW-4, who were closely related known to the deceased, no other private witness as been produced by the prosecution.

17.That apart, even the manner of assault given out by the eye witnesses is not supported by the medical evidence. According to the eye witnesses, the four assailants assaulted the deceased with iron rods and stones covered in cloth. There is no gain saying that if a person is assaulted by four persons from all sides, he is bound to get wounds on all parts of his body, including the head, shoulder etc. However, the evidence of the autopsy surgeon Dr. S.K. Verma (PW-10) shows that the deceased receive injuries only on the right side of the face, just lateral to right eye; over upper and anterior part of right pinna; right side of the forehead above the right eye brow and over right shoulder. The cause of the death is coma due to cranio cerebral injur likely to be produced by blunt force which is sufficient to cause death in the ordinary course of nature. Thus, the medical evidence also tends to falsify the pattern of assault given out by the eye witnesses. We are, therefore, of the considered view that the ocular account given by these eye witnesses does not inspire confidence and the claim of these witnesses having seen the incident cannot be believed.

18. All these circumstances cast grave doubt on the story of the prosecution and we find it difficult to accept that attack on the deceased took place in the manner alleged by the prosecution and the two appellants herein are responsible for the same.

19.Since, as noted above, apart from the evidence of PW-1 to PW-4, there is no other evidence to establish the prosecution case against the convicts, the convicts cannot be held guilty of the offence charged against them. Therefore, the conviction and sentence recorded against them cannot be sustained.

20.Since we have come to the conclusion that the prosecution has failed to adduce sufficient evidence to bring home the offence of Section 302 IPC against the convicts, and further the convicts are entitled to benefit of doubt on account of non-disclosure of their names to the doctor by PW-1 and PW-2 at the earliest possible opportunity, we deem it unnecessary to go into the merits of the plea of learned counsel for the convicts that the entire trial is vitiated because of inordinate unexplained delay of 4-5 days in sending the special report to the Magistrate under Section 157(1) CrPC and absence of a public witness at the time of alleged recovery of weapons of offence, though, prima facie, on the facts in hand, both these omissions do provide legitim(sic)te basis for suspicion that the projected version of the occurrence is distorted.

21.Consequently, we allow the appeals; set aside the conviction and sentence imposed on the appellants and acquit them of the offence charged against them. Convict- Bhagwan Dass, who is in judicial custody, shall be released forthwith, if not required in any other case. Bail bonds in the case of convict-Kishan Pal, whose sentence had already been suspended, shall stand discharged.

22. Before parting with this judgment, we record our appreciation for the assistance rendered by Mr.Sumeet Verma, Advocate, who appeared as amices curiae for convict Kishan Pal, in a very able manner.