Rajinder Kumar And Anr. vs State
2004 Latest Caselaw 1353 Del

JUDGMENT

R.S. Sodhi, J.

1. This appeal seeks to challenge the judgment of the Additional Sessions Judge, Delhi in Sessions Case No. 37/1999 arising out of F.I.R. No. 99/89, Police Station Geeta Colony under Section 307/325/34 IPC.

2. Brief facts of the case as noted by the Additional Sessions Judge are as follows:-

''On 12th of July, 1989 at about 9.00 p.m. Jasbir Singh, ASI of Police Control Room, informed the police of Police Station Geeta Colony on telephone that one Prithviraj has informed by way of telephonic call that a serious altercation was going on in a marriage party at Ram Leela Maidan near bus stop, Shastri Nagar, Delhi. On this information D.D. No. 49-B was recorded and was assigned to Ombir Singh ASI, for action in the matter. Ombir Singh ASI, left for the spot along with Const. Kiran Pal. At about 9.15 p.m. Lady Const. Ramwati of police control room had informed the police of P.S. Geeta Colony that one Ram had passed on information to her that Choudhary Manbir Singh has been murdered at Ram Leela ground Community Centre, Shastri Nagar, Delhi. He has been murdered by Ashok Kumar, Rajinder Kumar, Mohan and Raj Kumar who are residents of H. No. 17/55, Geeta Colony, Delhi. On this information D.D. No. 50-B was recorded and sent to ASI Ombir Singh through Const. Baney Singh. SHO P.S. Geeta Colony was informed of the facts on wireless set. Ombir Singh ASI reached DTC bus stand Shastri Nagar, Delhi and found Manbir Singh lying unconscious there. He was bleeding from his head and mouth. Ashok Kumar was also lying there, who was under the influence of liquor. He was also bleeding from his head. In the meantime, Sukhbir Singh SI also reached there per chance. Manbir Singh ASI prepared the injury sheet of the two injured and sent them to GTB hospital, Shahdara, through Sukhbir Singh SI, Gajinder Singh met him at the spot, who got recorded his statement, alleging therein that he resides at H. No. D/188B, East Vinod Nagar, Delhi. That day he had gone to attend the marriage of the daughter of Om Parkash, who resides at Shastri Nagar. The said marriage was to be solemnized at Community Centre of 17 Block, Geeta Colony, Delhi. At about 9 p.m. he heard the noise of ''beat beat'' coming from the side of DTC bus stand Shastri Nagar, Delhi. He reached the said bus stand along with Sri Chand, who works as a property dealer at Laxmi Nagar, Delhi. Many members of the marriage party also ran towards DTC bus stand, Shastri Nagar, Delhi. There he saw Ashok Kumar, Rajinder Kumar, Raj Kumar and Chaman Lal beating Sh. Manbir Singh. All were known to him from before Raj Kumar and Chaman Lal had caught hold of Manbir Singh and Rajinder Kumar and Ashok Kumar were wielding dagger blows at the head of Sh. Manbir Singh, uttering that his son had murdered their brother and he be put to an end. He along with Sri Chand and the members of the marriage party got Manbir Singh rescued from their clutches. Manbir Singh fell on the ground and became unconscious. Ashok Kumar, who was under the influence of liquor fell on the road and started bleeding from his head. Manbir Singh was bleeding from his mouth and head. According to Sh. Gajinder Singh, Ashok Kumar, Rajinder, Raj Kumar and Chaman Lal had attacked Manbir with an intention to attempt on his life. MLC of Ashok Kumar and Manbir Singh were brought by Sukhbir Singh SI. It was reported by the doctors that Ashok Kumar had sustained simple injuries caused by blunt object, while injury received by Manbir Singh were kept under observation. In view of these facts, a case punishable under section 307 read with Section 34 of the Penal Code was got registered and Ombir Singh ASI had taken up the investigation. During the course of investigation, the accused persons were arrested. Opinion as to the nature of injuries sustained by Manbir Singh was obtained. Doctor opined that he had sustained grievous injuries by blunt object. Statement of the witnesses including Shri Manbir Singh was recorded. In due course of investigation, the accused persons were challenged to face trial.

Accused persons pleaded not guilty to the charge framed against them for an offence punishable under Section 307 read with Section 34 of the Penal Code.''

3. The prosecution in order to substantiate its case examined Sh. Gajinder Singh, Ranjit Singh, Mukhtiar Singh, HC, Dr. S.C. Bhalla, Jagbir Singh SI, Keshraj @ Kishori SI, Krishan Kumar @ Sri Chand, Dr. Sudha Muria, Manbir Singh, Satish Chand Const., Ram Kishore HC, Sukhbir Singh SI, Ombir Singh SI and Jahur Ahmed HC in the case. Mukhtiar Singh HC, Dr. S.C. Bhalla, Jagbir Singh SI, Keshraj 2 Kishore ASI, Dr. Sudha Muria, Satish Chand Const., Ram Kishore HC and Jahur Ahmed HC were examined on formal points. Sukhbir Singh SI remained associated with the investigation. He proved the steps taken by the investigating officer during the course of investigation. Ombir Singh SI had conducted investigation of this case. He detailed the steps taken by him during the course of investigation in the case under reference. Sh. Gajender Singh, Ranjeet Singh, Krishan Kumar @ Sri Chand and Manbir Singh were examined to prove the facts of this case.

4. The case of the defense as stated by Ashok Kumar in his statement under Section 313 Cr.P.C. is that his brother Ashwani had been murdered by Manvir Singh and his sons in 1988 and a case under Section 302 was registered and pending trial against the accused persons. Evidence was in progress in that case. Rajinder and Raj Kumar were eye witnesses. Manvir Singh in order to put pressure on them has implicated him falsely in this case. He admitted that on the date of the incident he was present at the bus stop where Manvir along with his two associates came, under influence of liquor attacked him, as a result of which he sustained head injuries. On cries of help, Manvir Singh and his associates ran away. Manvir Singh in a drunken condition fell down and sustained injuries.

5. Manvir Singh and Ashok Kapoor were taken to the hospital by the police and the head injury of Ashok Kumar was stutched by the doctor of the jail hospital where medical aid was extended to him. The same defense is pleaded by Raj Kumar, Chaman Lal and Rajinder Kumar.

6. The trial court vide its judgment dated 14.9.1999 came to the conclusion that Chaman Lal and Raj Kumar had been falsely implicated in this case. It also returned a finding that the eyewitnesses of prosecution were not wholly believable. The trial court while dealing with the testimony of Gajender Singh, PW-1, the author of the F.I.R. held that his testimony is not in consonance with the facts detailed in MLC, PW-4/B and that it is clear that no sharp edged injury were found by the doctor on the person of Manvir Singh. The court also held that this witness has materially improved his statement from the circumstances narrated by him in his report, Exhibit PW-1/A. His testimony comes in conflict with the opinion of the doctors. Gajender Singh had joined facts and reported that Manvir Singh had been attacked with dagger by accused Ashok Kumar and Rajinder Kumar. The court also held that this witness with a view to help Manvir Singh has embellished facts in his statement Exhibit PW-1/A. The court held that - '' the testimony of Manbir Singh attacked with dagger had rocked the court. When facts presented before the court are not correct in toto, should the testimony of Gajender Singh be disbelieved.'' ''It is only where the testimony is tainted to the core that the court should discard the evidence in toto.'' However, the court went on nonetheless to believe this witness in its endeavor to separate the chaff from the grain.

7. Similar is the case when the court dealt with the evidence of Manvir Singh, PW-9. Yet it went on to hold the appellants guilty under Section 307/34 IPC.

8. On re-examining the material on record, I find, PW-1, Gajender Singh states that on 12.7.1989 he had gone to attend the marriage party of the daughter of Om Prakash. At about 9 p.m. he heard a noise ''MAARO MAARO'' from the side of Shastri Nagar bus stop. When he along with Shri Chand went towards the bus stop he saw Ashok Kumar and his brother Rajinder Kumar were have chhurri-katar type in their hands and Raj Kumar and Chaman Lal had caught hold of Manvir Singh while Ashok and Rajender Kumar were inflicting injuries on their persons with their churries. Manvir Singh was bleeding from his mouth and fell on the ground due to the injuries. Thereafter Chaman Lal and Raj Kumar gave blows with stones and brickbats. This witness along with Shri Chand rescued Manvir Singh from their clutches and informed the police. Ashok Kumar was drunk at that time and had fallen down and received injuries on his head. Police came to the spot and took Manvir Singh and Ashok Kumar to the hospital. Remaining accused ran away from the spot. Statement of this witness was recorded by the police and the same is PW1/A. The Chhurri was taken from the spot vide Memo, Exhibit PW1/3 after about 1+ hours the accused Narender Kumar was arrested. While Ashok Kumar was arrested from the spot itself. On cross-examination this witness states that he knew Manvir Singh about 4 to 5 years prior to the incident. The place of the incident was across the road from Community Centre where the Barat had reached. He does not know whether Manvir Singh had consumed liquor. He states that Shri Chand and about 50 other persons ran towards the place of noise and that he had given the name of Shri Chand in the F.I.R., (Exhibit PW1/A where this is not so mentioned). He states that the quarrel continued for about 15 to 20 minutes. During this period this witness tried to separate Manvir Singh and Ashok. He did not receive any blood stain or injury while separating the two. Nobody tried to apprehend the accused persons. The injury inflicted on the head of Manvir Singh was with a dagger. The police reached at the spot after half an hour during which time Manvir Singh and Ashok remained lying unconscious at the spot. Injured Manvir Singh and Ashok were taken to the hospital by the police. Nobody gave any medical aid to the injured at the spot. He did not visit Manvir in the hospital. He denied the suggestion that Manvir Singh was drunk and received injuries by a fall on stone lying on the road.

9. PW-2, Ramjit Singh has deposed that on 12.7.1989, he had gone to attend the marriage party of the daughter of Om Prakash. At 9.00 p.m. he heard ''Bachao Bachao'' from the side of DTC bus stand, Shastri Nagar. He rushed towards the spot. He saw all the four accused persons present in court beating Manvir Singh. On seeing this he informed the police on telephone. In cross-examination this witness states that he did not see Gajender at the spot and saw him for the first time when he came to give evidence in court. This witness states that he knows that Manvir Singh and his two sons have been sentenced to life imprisonment for the murder of the brother of the accused persons.

10. PW-3, Muktyar Singh deposes to the effect that he received rukka sent by ASI Omvir Singh for registration of the case on the basis of which he recorded F.I.R. No. 99/1989 in the original F.I.R. Register, carbon copy of the same is PW3/A.

11. PW-4, Dr. S.C. Bhalla, examined Manvir Singh and found oblique fracture of lower end of shaft of Ulna. Scalp shows no boney injury. His report is Exhibit PW-4/A. He also identifies the signature of Dr. Sudha Murria over MLC No. 2097/89 of Manvir Singh and MLC No. 2096/89 of Ashok. The MLC's are exhibited as PW-4/B and PW-4/C. In cross-examination this witness states that fracture in the lower ulna is possible by fall.

12. PW-6, ASI Kesh Raj, Exhibited F.I.R.105/88, PW-6/A to be the F.I.R. Under Section 302 IPC. He also deposes that Manvir Singh, his sons Mukesh and Rakesh as also Manjit Singh accused in the aforesaid F.I.R. Were convicted under Section 302 IPC vide judgment dated 25.1.1997 and sentenced to life imprisonment.

13. PW-7, Kishan Kumar did not support the prosecution's case.

14. PW-9, Manvir Singh, the injured witness states that on 12.7.1989 he had gone to attend the marriage party of the daughter of Om Prakash. There Ashok and Rajinder had also come and threatened him alleging that he and his sons had killed their brother and that he would not be spared. The other baratis pacified the dispute and Ashok Kumar and Rajinder Kumar both left the place. This witness also followed. On reaching the bus stop of Shastri Nagar , Ashok and his three brothers, Rajinder Kumar, Chaan Lal and Raj Kumar came and surrounded him saying that they would take revenge. Chaman Lal and Raj Kumar beat him with bricks and stones which they were holding in their hands. Ashok Kumar and Rajinder Kumar were holding knives in their hands. He tried to save himself but Raj Kumar and Chaman Lal gave him beatings with stones and bricks while one of the accused gave him brick blow on his forehead and chest whereas other accused hit him with brickbat on his right hand. Rajinder gave him knife blow on his head and Ashok gave him a blow with a knife on his mouth, breaking his teeth. He shouted ''Bachao Bachao'' and became unconscious and fell on the ground.

15. In cross-examination the witness admits that he and his sons have been sentenced to life imprisonment and he also admits that the murder of the brother of the accused persons took place prior to the registration of this case. he states that he was unconscious at the time of the incident and regained consciousness in the hospital on the third day. He fell unconscious and did not know as to by whom he was taken to the hospital. He states that he was not under the influence of liquor. He states that he had not disclosed his name to the doctor, nor as to how the incident had occurred. He denied that he was putting pressure on the accused persons, not to give evidence against him in the case pending trial for the murder of the brother of the accused persons. He also denied that with the assistance of ASI Om Vir Singh he got a false case registered against Raj Kumar under the Narcotics Act. He also does not know whether Raj Kumar was acquitted in that case. He also states that PW-1, Gajender Singh as not known to him prior to the incident. He had not told his name to Gajender Singh, nor had he disclosed his address. He denied the suggestion that he had assaulted Ashok Kumar and during the process fell on the ground being under the influence of liquor and sustained injuries due to fall on the stones. He also denied causing injuries to Ashok Kumar. He also denied having a false case registered against the accused persons in connivance with ASI Om Vir Singh nor to put pressure on the accused persons. He admitted that the incident took place before the accused persons were examined as witnesses in the murder case against him and that they were eye-witnesses to the occurrence of murder. PW-12, ASI Sukhbir Singh deposes to the effect that ASI Omvir Singh gave an application to this witness to have Ashok Kumar and Manvir Singh medically examined from GTB hospital and he took the injured persons to GTB hospital. He had them medically examined. In cross-examination this witness admits that both the injured were conscious and were talking with him at the time when he took them to the hospital.

16. PW-13, ASI Om Vir Singh stated that he was posted at Police Station Gita Colony on which day copy of DD No. 49B, was marked to him by duty officer. The DD is Exhibit PW-13/A. The said DD was with regard to a quarrel at Shastri Nagar bus stop. On reaching the spot he found Manvir Singh and Ashok Kumar in an injured condition. He sent them to the hospital to have them medically examined. He made enquiries from the spot and one Gajender Singh present stated that he had seen the incident. Gajender Singh's statement was recorded verbatim. He signed the same in his presence at point A, after the contents were read to him. His statement is PW-1/A. From the spot he took into possession a dagger and its cover which was sealed vide memo Exhibit PW-1/B. This witness could not identify Ashok Kumar and was allowed to be cross-examined by the Public Prosecutor. In cross-examination this witness states that Gajender and Kishan Kumar were eyewitnesses to the incident. He recorded the statement on the spot.

17. The defense in order to support their case examined DW-1, Rakesh Kumar who deposes that about 91/2 years ago he was present near Shastri Park where his vehicle was parked and was being repaired. He heard a noise from the said pandal and saw a crowd. He reached their and saw Ashok and Netaji (Manbir Singh) exchanging hot words with each other. Both were drunk. During the scuffle, Netaji fell down on the stones lying on the road. As a result he sustained injuries. He went to the house of Asho Kumar to inform the family members.

18. From a perusal of the MLC of Ashok Kumar, Exhibit PW-4/C it appears that the doctor has made an entry that the injuries were as a result of being involved in fight. The injuries were blunt in nature. From MLC of Manbir Singh, Exhibit PW-4/B the doctor records -''alleged to have been involved in a fight and having fallen on a stone.'' He records that there was no history of unconscious, no bleeding from ENT and no vomitting. There was smell of Alcohol. The injuries caused were by a blunt object but were grievous in nature. The injured was unfit to make a statement.

19. From the perusal of the material on record it appears that that PW-1 has completely taken a somersault from the original statement which formed the basis of the F.I.R. wherein it was alleged that Manvir Singh was being attacked by brickbats and stones by the accused persons. The statement of this witness is totally belied by the medical evidence which shows that no sharp edged weapon was used by any of the accused persons. It also depicts that this witness is concocting the version to assist Manvir Singh in order to implicate Ashok Kumar and Rajinder Kumar. The testimony of Manvir Singh is also riddled with untruth. In the first instance the story given out by him to the doctor was that he had sustained injuries by fall as a result of the scuffle but subsequently has improved on the same by adding daggers, stones, bricks as also implicating Chaman Lal and Rajinder Kumar. The so called recovery of the dagger does not connect any of the accused persons with it and nobody says that the dagger was used nor does forensic report support its use in the incident. In any case the medical evidence shows no injury caused by the dagger. There is no explanation as to the injuries on Ashok Kumar, except for a fall which certainly could not have caused he injury of the nature that required stutches on the head of this injured person.

20. On the other hand, I find that the defense version is more probable inasmuch as there was a drunken browl between Ashok Kumar and Manvir Singh, motive being the earlier murder of the brother of Ashok Kumar by Manvir and his sons and the likelihood of Manvir trying to presurise the eyewitnesses not to depose in the murder case. It is in this scuffle that injuries have been caused to both persons, namely, Manvir and Ashok by blunt objects. This is supported by the medical evidence. Further, I find that the trial court itself has found the statements of Gajender Singh and Manvir Singh not to be wholly truthful but has gone to dissect them rather shabbily in its endeavor to separate chaff from the grain. There is no corroborative evidence of exchange of words at the barat congregation. There is a finding of fact that two persons have been wrongly introduced as accused. There is a finding that eye witness account is not wholly truthful. These findings have not been challenged. Under these circumstances, it would be highly unsafe to base a conviction on these witnesses.

21. From the evidence on record, I find that the prosecution has not been able to establish its case, as made out in the charges framed against the accused persons. The trial court has already acquitted Chamal Lal and Raj Kumar stating that they have been falsely implicated in the case. Ashok Kumar has died during the pendency of the appeal. His appeal abates.

22. As regards Rajinder Kumar, as already held, the prosecution has not been able to bring home the guilt of this accused. I, therefore, acquit him of all charges framed against him and set aside the judgment of conviction. The appellant - Rajinder Kumar is on bail his bail bond stands canceled. The surety is discharged.

23. Criminal Appeal No. 485/1999 is allowed and disposed of.