Vinod S/O Rameshwar Kumar vs The State
2007 Latest Caselaw 2471 Del

JUDGMENT

G.S. Sistani, J.

1. The appellant has filed the present appeal against the judgment dated 04.11.2003 and order dated 06.11.2003 of the Additional Sessions Judge thereby holding the appellant guilty for the offence punishable under Section 302/307 of the Indian Penal Code and sentence of life imprisonment with fine of Rs. 10,000/- and in default of payment of fine to further undergo simple imprisonment for three months.

2. The necessary facts of the case are that on 24.10.1999 on receipt of information pertaining to the commission of murder in front of house No. 8/13, Sethi Enclave Uttam Nagar, an information was recorded vide DD No. 12B. On receipt of this information Sub-Inspector Man Mohan Singh along with Ct. Ashok reached the spot of the incident House No. 8/13, Sethi Enclave, Uttam Nagar, New Delhi.

3. Vinod Kumar (hereinafter the appellant) has been convicted for the offence of murder of Dina Nath, stab injuries to Daya Ram and, thus, convicted under Sections 302/307 IPC.

4. At the spot of the incident none was present and on information it was learnt that the injured/deceased were admitted to DDU Hospital. Statement of Smt. Shanti, the mother of the injured/deceased was recorded. According to her, the appellant was her neighbour and he had quarrelled many times earlier with her sons for not letting the waste/dirty water of the kitchen, enter the plot outside her house due to which the plot would get muddy.

5. On 24.10.1999 at about 11.35 am, the appellant had come in front of her house and had started abusing. On hearing this, Daya Ram, son of Smt. Shanti went outside and enquired from the appellant as to why and to whom he has been abusing, due to which, the appellant became angry and started kicking and giving fist blows to Daya Ram.

6. On hearing the noises, her daughter and son Dina Nath also came out of the house and when Dina Nath saw his brother being beaten by the appellant, he tried to intervene. Thereafter, the appellant took out a knife and threatened Dina Nath and Daya Ram and shouted that he would kill them. The appellant thereafter gave stab injury on the neck, chest and back of Daya Ram and when Smt. Shanti and her daughter shouted for help, the appellant ran away from the spot after giving knife blows to her sons.

7. On the basis of this statement, Rukka for Registration of the FIR under Section 307 IPC was sent to the Police Station through Ct. Ashok. The injured Dina Nath died on 26.10.1999 in the hospital. The dead body of the deceased was sent for post portem and the case was converted into Section 302 of the Indian Penal Code.

8. It is contended by learned Counsel for the appellant that the impugned judgment dated 04.11.2003 and order dated 06.11.2003 are bad in law and in the facts and circumstances of the case, the same are liable to be set aside. It is submitted that the Trial Court has failed to appreciate the facts and material on record and, thus, the story of the prosecution is false, frivolous, fictitious and fabricated and the appellant has been falsely implicated in this case. In fact, the judgment of the Trial Court is based on conjectures, suppositions, surmises and assumptions and, thus, not sustainable. As per the appellant, the version of the prosecution is not probable.

9. Learned Counsel for the appellant has also submitted that the prosecution did not attribute any motive on the appellant to commit the alleged offence. PW-1, the mother of the victims has specifically stated that there was no enmity with the appellant and the open plot where the waste water usually got collected, did not belong to her.

10. Learned Counsel for the appellant has strongly contended that the alleged eye-witnesses i.e. PW-1, is the mother of the deceased, PW-2 is the brother of the deceased and PW-3 is the sister of the deceased who belong to the same family are interested witnesses and no reliance can be placed on their evidence. Even otherwise the version of the witnesses Pws-1 to 3 are not consistent and are contrary to each other. It is further submitted that although the incident was committed during the day time and many other neighbours might have witnessed the incident yet the prosecution has failed to join independent public witnesses. It is also contended that the prosecution has failed to produce the weapon of offence as the knife which is alleged to be the weapon of offence has not been recovered.

11. During the cross-examination, he has stated that he reached the spot at about 12.45 pm. There were public persons present there. Nobody came to give the statement. The injured were taken to hospital by PCR Van. The appellant was arrested on 24.10.99 at about 9.30 pm.

12. The prosecution in support of its case, examined 28 witnesses.

13. Prosecution has examined PW 1 Shanti Devi who has stated that on 24.10.99 at about 11.30 AM she was present in her house when appellant Vinod came to her house abusing them. She came out along with her son Daya Ram. Her son inquired from the appellant as to whom he was abusing and why? The appellant was abusing on account of flowing of water of their house in the adjoining plot. In the meantime her elder son Dina Nath and her daughter Geeta came out of the house. The appellant proclaimed that he will finish the matter of flowing of water on that day for all times to come. In the meanwhile the appellant took out a knife and hit her elder son on his head with that knife. He also gave a knife blow on the back of her son as a result of which her son became unconscious. He tried to attack Daya Ram also with that knife. But apprehending danger to his life Daya Ram started running from there but then appellant followed Daya Ram, caught hold of him from back side and gave four knife blows on the back of Daya Ram. Thereafter the appellant ran away from the spot. The police was called by dialling No. 100. PCR van came there and removed her both sons to DDU Hospital. Her statement Ex. PW1/A was recorded by the police which bears her right thumb impression.

14. During the cross-examination she has stated that she had three daughter namely Rani, Malti and Geeta and three sons namely Deena Nath, Daya Ram and Parveen. There may be more than 100 houses in the Kumhar colony. The water of her house used to go in a plot opposite to her house which was not belonging to her. She did not know about the owner of that plot. The plot where the water flows from her house was not belonging to Vinod appellant. On the date of incident also the water was flowing to the said plot adjoining to the plot. This plot was located in between her house and the house of appellant. On the date of incident also the water was flowing to the said plot adjoining to the plot. This plot was located in between her house and the house of appellant Vinod. Before this incident there was no dispute between them and appellant Vinod. At the time when objections were raised by Vinod about flow of water she was sitting out side her house at the Chabutra. She only told Vinod that since water was flowing from her house as well as his house, he should not trouble them. She did not try to save Daya Ram. Her son Dina Nath also came out. In the meanwhile she had been asking Vinod not to create trouble for small things. As soon as Dina Nath came out. Vinod caught hold of him and left Daya Ram. After coming out Dina Nath also tried to advice Vinod not to create dispute on small thing. However, Vinod stabbed Dina Nath after telling him that how dare he tried to advice him and that he will finish the matter for all times to come. Blood had fallen opposite to her house where stab injuries were caused. She came back to her house at about 2.30 pm along with the police who lifted blood sample in her presence and then again she went to the hospital. She has denied to the suggestion that neither she nor her daughter Geeta was witnesse to the incident and she was deposing falsely. She has also denied the suggestion that she had reached the hospital only on the next day.

15. Prosecution has further examined PW 2 Daya Ram who has stated that the water of their house and some other houses flows towards an open plot situated in front of their house. On 24.10.99 at about 11.15 AM on hearing the abuses he and his mother came out of their house and inquired from the appellant as to whom he was abusing. The appellant felt offended and started giving him beating with fist and leg blows. Seeing them his mother cried for help, on hearing the same his brother Dina Nath and his sister Geeta came out of the house. As soon as his brother tried to save him from the appellant the appellant took out a knife from the right side pocket of his pant and started giving knife blow on his person. He received two knife injuries on his back. He pushed the appellant and ran to save himself when the appellant gave a knife blow on the head of his brother. His brother was about to fall but he took care of him. When he was in the process of taking care of his brother the appellant caught hold of him from behind and gave a knife blow on his neck on the back side. He and his brother fell on the ground due to the injuries caused by the appellant to both of them with the knife. The appellant proclaimed that he has finished the matter once for all and ran away from the spot. After about 30/45 minutes the police came there and put both of them in the gypsy and took them to the DDU Hospital.

16. During the cross-examination he has stated that prior to the incident he had three sister and two brothers. His brother Deena Nath died in the incident. He was the eldest amongst the brothers but was younger to their eldest sister. He admitted that it was Sunday on the date of the incident. Except for his father and the eldest sister all other members of his family were present at home at the time of incident. Geeta and Malti were his younger sisters. There maybe 7/8 houses surrounding the chowk in front of his house. The residents of those houses were also present at the time of incident. The appellant was standing at a distance of about 10 places from his house when he was abusing his family members. The appellant was giving him beating while he was lying on the ground. His brother Dina Nath came to his rescue. The appellant has taken out the knife in his right hand from the left side of his pant. His brother became unconscious shortly he was stabbed by the appellant at a short distance. He has denied to the suggestion that during the course of grappling his mother came and laid down over him in order to save him. He admitted that the appellant gave him second knife blow when he was on the process of saving his falling brother. He has also denied to the suggestion that his brother and he himself wanted to marry a girl named Shanti @ Shanni or that she was the bone of contention or that he had any enmity with the appellant or for that reason he got the appellant implicated in this case.

17. Prosecution has further examined PW3 Geeta who has stated that on 24.10.99 at about 11.00 am the appellant came in front of their house and started abusing. In the meanwhile her brother Daya Ram along with her mother came out of their house to enquire as to why he was abusing. The appellant started giving fist and led blows to brother. Her mother cried and she and her elder brother Dina Nath came out of the house. When her elder brother tried to come to the rescue of her younger brother the appellant took out a knife from the right side pocket of his pant and started attacking her brothers therewith. The appellant gave knife blows on the head and back of her elder brother Dina Nath. He also gave knife blows on the back and side of the neck of her brother Daya Ram. She and her mother raised alarm for help as a result of which the appellant ran away from the spot along with the knife. Her brothers became unconscious and subsequently her brother Dina Nath died.

18. During the cross-examination she has stated that she was inside the house when Vinod started abusing. Her mother was sitting outside and her brother had gone out after hearing the noise of abuses. Her statement was recorded by the police in the hospital at about 4.00 pm. She did not make any effort to intervene in the fight. This kind of incident happened for the first time about the dispute of water flowing but earlier there used to be minor discussions. She and her mother had gone to the hospital in the police vehicle along with her brother. 19.Prosecution has further examined PW 7 Dr. S.K. Khanna, Professor, Department of Forensic Medicine, who has stated that on 26.10.99 he conducted post mortem on the body of the deceased Dina Nath and found following external injuries on the body:

1. Stitch wound 5.5 c.m. on the left side of face. The margines of the wound was clean cut.

2. Incised wound 1.5 x 1.2 c.m. On the left side of back of chest.

3. Abrasions 4 x 2 c.m. On the right side of forehead.

4. Conduction 1.5 x 1, c.m. on the middle part of right arm.

5. Abrasions 1.5 x 1.2 c.m. on the lower third of left forearm.

INTERNAL EXAMINATION OF HEAD

Skull was found to have liner fracture involving left sphenoid, temporal bones and extending to left middle cranial fossa. There was defused subarachnoid hemorrhage all over both the cerebral hamispheres. There was condusion of left temporal end partial lobes of the brain. There was blood in both the lateral ventricles.

CAUSE OF DEATH.

Death was due tocranio -cerebral damage consequent upon injury No. 1. All the injuries were ante-mortem in nature and about 1 to 2 old before death. Injuries No. 1 and 2 were caused by a sharp edge weapon and injuries No. 3 to 5 2343 caused by blunt force. Injury No. 1 along with damage to the brain was sufficient to cause death in ordinary course of nature. His report is Ex. PW 7/A which bears his signatures.

20. During the cross-examination he has stated that there is possibility of receiving of injuries similarly to injury 3 to 5 in this case by fall on some hard surface/ground. He also stated that it could safely be opined that it was sufficient along with damage to the skull and brain corresponding to injury No. 1, to cause death, in the ordinary course of nature.

21. Prosecution has further examined PW6 Dr. Amitabh Bhasin Radiologist who has stated that on 27.12.99 he examined X-Ray plate of patient Daya Ram and found that in the X-Ray of abdomen collection in the left plaurel space. Rest of the X-Ray was normal. X-Ray of the chest showed that there was collection in the left plaural place suggestive of hemothorax. There was also subcutaneous emphysema seen in the right upper neck. His report is Ex. PW 6/A which bears his signatures.

22. Prosecution has further examined PW 8 Dr. Tarun Jain, DDU Hospital, who has stated that he examined Daya Ram on 24.10.99 at 1.30 PM and prepared MLC Ex. PW 8/A which bears his signatures.

23. During the cross-examination, he has stated that the patient was having three incised wound but was not having an cousion, lacerated wound or ligature. The incised wounds were caused by some sharp edged weapon. The corresponding cuts were available on the clothes of the patient. Patient was conscious at the time of examination. He was already conscious when brought to him.

24. Prosecution has further examined PW 9 Dr. Ramanik who has stated that patient Daya Ram was admitted in the hospital on 24.10.99. After examining the MLC is Ex. PW 8/A. He gave the opinion of injury as dangerous vide his endorsement Ex. PW 9/A which bears his signatures. The patient was declared fit for statement on 27.10.99 vide his endorsement Ex. PW 8/B which bears his signatures.

25. During the cross-examination he has stated that the patient was under his supervision and he kept on examining him between 24.10.99 to 27.10.99 when he was declared fit for statement. He had declared the patient fit when the IO approached him on 27.10.99. He has admitted that he had given the opinion about the nature of injury suffered by the patient only after Dr. Tarun Jain had examined and prepared his MLC.

26. Prosecution has further examined PW 10 Dr. Mehtab Singh who has stated that on 24.8.99 he examined the patient Deena Nath s/o Cheddi lal with the alleged history of assault. He found the clean incised wound about 3 to 4 cms on lateral side of forehead above left eye. The injury was nearly too deep. The nature of injury was sharp and the patient was kept for observation in the deptt. Surgical ICU.

27. Prosecution has further examined PW 4 Chedi lal who has stated that on 26.10.99 he identified the dead body of his son Dina Nath in JPB Mortuary. His statement was recorded by the IO which is Ex.PW 4/A which bears his signatures.

28. Prosecution has further examined PW 5 Dalip who has stated that on 26.10.99 he identified the dead body of his brother Dina Nath in JPN Hospital mortuary. His statement was recorded by the IO which is Ex. PW 6/A which bears his signatures.

29. Prosecution has further examined PW 11 Shri Leerath Raj Singh, Draftsman, who has stated that on 3.11.99 he went to the spot i.e. Sethi Enclave, AB-16, and took rough notes and measurement on the instructions of SI Man Mohan Singh of the place of occurrence. He prepared scaled site plan with the help of measurements and rough notes. After preparing the scaled site plan, the rough notes and measuresments were destroyed. The scaled site plan prepared by him which is Ex. PW 11/A and bears his signatures.

30. During the cross-examination he has admitted that he has not shown the house of complainant Shanti Devi because it was too far from the place of incident. SI Manmohan Singh was present there. SI Manmohan Singh pointed out at these points were blood stains. The distance between the house of Vinod and the house at the opposite side, is about 50 fts. Approximately.

31. Prosecution has further examined PW 12 Dr. Sanjeev Arora, who has identified the signatures of Dr. G.J. Singh in charge, Surgery Department where the injured Dina Nath and Daya Ram were admitted on being recommended by Dr. R. Grover.

32. Prosecution has further examined PW 13 Const. Chander Singh who has stated that on 24.10.99 he assisted SI Man Mohan Singh in the investigation of this case. he along with said SI and Const. Harish had gone in search of the appellant to check Pipalwala, Mohan Garden. After search was conducted for sometime, the secret informer identified the appellant Vinod who was sitting outside his house. SI arrested him. He was interrogated and his statement was recorded. His personal search was also taken. He signed the same which is Ex.PW 13/A. The disclosure statement made by appellant was also signed by him and the same is Ex. PW13/B. He also pointed out memo Ex.. PW13/C was prepared which also bears his signatures.

33. He has further stated that the appellant was taken to DDU Hospital by him and Const. Harish. After the medical, he was brought to Vikaspuri Lock Up. No recovery was effected on the basis of the disclosure statement made by the appellant.

34. Prosecution has further examined PW 14 Const. Rajesh who has stated that on the night intervening 25/26.99 at about 4.20 AM he received information from Babu JPN Hospital that injured Dina Nath had been referred to JPN Hospital. He reduced this information in writing vide DD No. 48 C which was in his handwriting and the same is Ex. PW14/A.

35. Prosecution has further examined PW 15 Const. Harish who has stated that on 24.10.99 he remained with the IO in the investigation of this case. On that day he along with IO and Const. Chander Singh went to Mohan Garden in search of appellant. Appellant was apprehended. Appellant has sustained injuries and his shirt was blood stained. Thereafter appellant was brought to police station. In the night, he along with Const. Chander Singh took the appellant to Hindu Rao Hospital for his examination. Appellant has told the IO in the interrogation that he would get recovered the knife but the same was not recovered by him.

36. Prosecution has further examined PW 16 Komal Singh, Const. who has stated that on 24.10.99 he handed over the one sealed parcel sealed with the seal of CMO (DDU) Hospital to SI Manmohan who seized the same vide memo Ex. PW16/A which bears his signatures.

37. Prosecution has further examined PW 17 Sanjay Kumar who has stated that on 24.10.99 he accompanied Addl. SHO T.P.S. Tomar to Sethi Enclave, leaving him there at the spot. IO along with Const. Ashok went to DDU Hospital. At the spot blood was lying. Thereafter IO returned to the spot and in the presence of Shanti Devi mother of the injured, IO inspected the spot and prepared site plan. IO called the photographer who took photographs IO seized from the spot the blood stained cotton. Bloodstained earth, earth control and the blood lying at some distance after he prepared the four parcels sealed with the seal of MMR vide seizure memo. Ex. PW17/A same bears his signatures.

38. Prosecution has further examined PW 18 Const. Suresh Chander who has stated that on 27.11.99 he obtained the case property of this case along with form FSL from MC(M) vide RC No. 253/21/99 but case property could not be deposited and he deposited the same with MHC(M) on 4.12.99 on his return to Delhi from Calcutta.

39. Prosecution has further examined PW 19 Const. Mehtab Singh who has stated that on 26.10.99 he got conducted the post mortem on the body of deceased Deena Nath in JPN Hospital and after the post mortem the dead body of the deceased was handed over to Cheddi Lal.

40. Prosecution has further examined PW 20 Const. Ravinder Kumar who has stated that on 25.10.99 he along with IO came to Tis Hazari Court and took one day police custody of the appellant and thereafter he pointed out the place of occurrence.

41. Prosecution has further examined PW 21 HC Mohinder Singh who has stated that on 24.10.99 he recorded FIR No. 1056/99 u/s 307 IPC on receipt of rukka sent by SI Manmohan Singh and brought by Const. Ashok Kumar. The copy of the FIR is Ex. PW 21/A. He has also recorded the DD No. 2A as a token of registration of this case.

42. Prosecution has further examined PW 22 Kuldeep Singh who has stated that on 24.10.99 SI Manmohan Singh deposited with him 12 sealed parcels sealed with the seal of MMR and one sealed parcels with the seal of CMO DDU Hospital and the sample seal. On 27.10.99 Insp. T.P.S. Tomar deposited with him one sealed parcel sealed with the seal of MAM College and sample seal. On 27.11.99 he handed over the case property of this case along with sample seal to Const. Suresh vide RC No. 253/21 for depositing the FSL, Calcutta but the case property could not be deposited. On 15.12.99 he again handed over the case property to Const. Naresh Kumar vide RC No. 266/21 for depositing the same in Malviya Nagar. On 1.5.00 the result from FSL was received along with remnants of the case property. He made the entries at Serial No. 856 and 863 in register No. 19. So long the case property remained with him, the same remained intact. The photocopy of the said entry is Ex. PW22/A.

43. Prosecution has further examined PW 23 HC Samay Singh who has stated that on 24.10.99 he received the call about the stabbing incident. He reached the place of occurrence and found two persons Daya Ram and Dina Nath in an injured condition. Blood was lying in many places. He came to know that one Vinod Kumar had given him knife injury and thereafter he left the spot. He took injured Daya Ram in PCR Van and got him admitted in DDU Hospital.

44. Prosecution has further examined PW 24 Const. Naresh Kumar who has stated that on 15.12.99 he took the case property from MHC(M) along with FSL form vide RC No. 261/21/99 and deposited the same in FSL Malviya Nagar so long as the case property remained with him same remained intact.

45. Prosecution has further examined PW 25 Const. Ashok Kumar who has stated that he joined the IO in the investigation of this case. On receipt of one DD of which he could not remember the number, at about 12.00 noon he along with IO reached 8/13, Sethi Enclave, Mohan Garden. There they came to know that injured had been taken to DDU Hospital. Then they reached DDU Hospital and recorded the statements. Thereafter IO gave him tehrir and then samples were taken. He had nothing more to say.

46. This witness turned hostile. During the cross-examination by the Ld. APP he has stated that IO recorded his statement. He admitted that IO received DD No. 12B. he has admitted that at the spot they came to know about quarrel but no eye-witness was available and blood was lying on many places. After leaving the Const. Sanjay, he along with IO reached DDU Hospital. IO obtained the MLC of Dina Nath and Daya Ram who were unfit for statement. He has also admitted that in the hospital Smt. Shanti met the IO and IO recorded her statement. He also admitted that on his return to the spot, he handed over the tehrir and copy of FIR. In the hospital the duty constable handed over to the IO one sealed parcel and one sample seal with the seal of CMO DDU Hospital which was seized by the IO Ex. PW16/A.

47. During the cross-examination, he has stated that the sealed parcel was given by the IO at 12.30 noon. They reached the hospital at 12.20 PM. IO recorded the statement of Shanti Devi at about 1.00 PM.

48. Prosecution has further examined PW 26 Const. Gurdeep Singh who has stated that on 24.10.99 he recorded DD No. 12A. The photocopy of the DD is Ex. PW20/A.

49. Prosecution has further examined PW 27 Cosnt. Satish Kumar who has stated that on 4.11.99 he had gone to the spot at the call of the IO where he had taken the photograph at the instructions of the IO. He has taken eight photographs. The negatives of the same is Ex. PW27/A1-8 and the photographs is Ex. PW27/B1-B8.

50. This witness was also cross-examined by the Ld. APP for the state as he has not supported the prosecution case. During the cross-examination he has stated that IO has taken his statement. He has admitted that he had gone to the spot to take the photograph on 24.10.88. He has also admitted that due to lapse of time he had forgotton the date and month.

51. Prosecution has further examined PW 28 Inspector Man Mohan who has stated that on 24.10.99 on receipt of DD No. 12B he along with Const. Ashok reached the place of occurrence i.e. House No. 13, Sethi Enclave, Super Bazar, where they came to know that injured had been taken to DDU Hospital. Addl. SHO along with cons. Sanjay reached at the spot. He left the Const. Sanjay there. he along with Const. Ashok reached the DDU Hospital where he procured the MLC of Dinesh and Daya Ram and they were unfit for statement. In the hospital Smt. Shanti Devi met him who gave the statement Ex.PW1/A. He made endorsement Ex.PW28/A and sent the Const. Ashok who got the case registered on the basis of the same. Thereafter he along with complainant Shanti Devi returned to the spot. Meanwhile Const. Satish came at the spot who took the photographs Ex.PW27/B/B-1-8. He also recorded his statement. From the spot, he seized the bloodstained earth, earth control and other exhibits vide seizure memo Ex. PW17/A. He sealed all the pullandas with site plan Ex. PW28/B with correct marginal notes. Thereafter they searched for the appellant but they did not find him. Thereafter he accompanied with Const. Ashok reached DDU Hospital. The hospital duty const. Kamal Singh handed over to him one sealed parcel with the seal of CMO and seized the parcel vide seizure memo Ex. PW16/A. He recorded the statement of Kamal Singh and in the hospital Geeta d/o Cheedi Lal met them and he recorded her statement.

52. He has further stated that thereafter he along with Const. Ashok came back to the spot. Again they searched for the appellant but they did not get any clue. They thereafter returned to the police station and deposited the case property with MHCM. Then at about 8.30 PM he along with Const. Harish and Const. Chander left the plice station for search of appellant. When they reached peepalchock, at the instance of secret information appellant Vinod was apprehended. He got the appellant medically examined. They returned to police station and recorded the disclosure staement which is Ex.. PW13/B in which he disclosed that he could get recover Lathi and knife. On 25.10.99 he along with Const. reached to DDU Hospital where they came to know that Dina Nath has been shifted to LNJP Hospital and unfit for statement. Then he came to the police station. Thereafter appellant led them to the spot and pointed out the place of occurrence vide pointing out memo Ex.PW 13/C. The personal search memo is Ex. PW13/A. He tried to recover the weapon of offence but could not recover it. On 26.10.99 DD No. 48B was received with regard to the death of Dina Nath. He along with Const. Mehtab reached JPN Hospital and got conducted the post mortem of the deceased and before that he conducted inquest proceedings. The statement of identification of dead body is Ex.PW28/C. After the post mortem the dead body was handed over to the relatives of the deceased. He also asked the doctor to preserve the blood sample of the deceased. On 27.10.99 he again joined the investigation of this case and he handed over one sealed parcel with the seal of Forensic Medicines MAM College, New Delhi and one sample seal to the IO who seized the same vide seizure memo Ex.PW28/D. On 3.11.99 the IOD got prepared the scaled site plan from the Draftsman Sh. Teerath Raj Singh where he was present. Complainant Shanti Devi was also present.

53. It is contended by learned Counsel for the State that the prosecution has proved its case beyond any reasonable doubt and the same is based on the evidence of the eye-witnesses including PW-2 who is also injured.

54. We have heard learned Counsel for the parties. It would be appropriate, at this stage, to analyze the evidence in this matter. There are three eye-witnesses in this case, PW-1, who is the mother of the deceased; PW-2 who is the brother of the deceased; and PW-3 who is the sister of the deceased. A close look at their evidences would show that there is consistency and little or no variation. As per the three eye-witnesses, the date and time of the incident stands corroborated. What is also corroborated from the evidence of each of the witnesses is that the appellant had come in front of their house and started abusing. PW-1 has stated that she came out of the house along with her son Daya Ram (deceased) and the appellant was abusing them on account of flowing of water from the house of the deceased to the adjoining plot. At the same time it emerges from the statements of PWs-1 to 3 that Dina Nath as well as PW-3, the daughter also came out of the house. All the three eye-witnesses have been consistent in their evidence to state that the appellant took out a knife from his pocket and gave knife blows on PW-2 as well as knife blows on the head of Dina Nath (deceased).

55. All the three eye-witnesses in their account have mentioned that the appellant after giving the knife blows to the deceased Dina Nath as well as after injuring Daya Ram ran away from the spot. In the cross-examination of the witnesses at length, all the three-witnesses remained unshaken in their testimony. Merely the fact that the eye-witnesses were related to the deceased cannot by itself be called as interested witnesses. Nothing has come on record to show that there was any reason for the three eye-witnesses to implicate the appellant falsely nor any motive was attributed.

56. The deceased Dina Nath had, in fact, gone outside to save his brother PW-2, who was being beaten by the appellant. The statement of the appellant was recorded under Section 313 of the Cr.P.C. On reading of this statement, we find that the appellant had admitted the factum of Kachi drain in front of his house which was a nuisance and due to which a pit was formed and passers by used to fall in it due to which there was some disputes between the neighbours. He has also stated that on 22.10.1999 at about 7.30 pm, one cyclewala had fallen in the drain due to the pit made by PWs Dina Nath and Daya Ram. The said cyclewala got injured and appellant had reprimanded Daya Ram, PW-2. Of course in the statement, he also states that he has been falsely implicated in the case. From this statement read with the statement of PW-1 as well as the statement of PW-2, it is established that water used to flow from their house towards an open plot. Another thing which emerges from the statement of the appellant under Section 313 Cr.P.C. is that he was present at the time of the incident. However, according to him, it was a quarrel between the brothers and the appellant, who had been falsely implicated. This statement when taken into consideration with the cross-examination of PWs, wherein a suggestion was made to PW-2 that when he was grappling with the appellant his mother Smt. Shanti Devi came to the spot. The suggestion put to PW-2, Daya Ram, who was injured is reproduced as under:

It is wrong to suggest that during the course of grappling, my mother came and laid down over me in order to save me.

57. The statement of the eye-witnesses that is PW-1 is corroborated with the statements of PWs-2 & 3 and would show conclusively that the appellant was present at the spot and PWs-1 to 3 were eye-witnesses to the extent.

58. On reading of the evidence of the eye-witnesses PWs-1 to 3, we find that the testimony of the witnesses is trustworthy. Their credibility has been tested in cross-examination and it cannot be said that they are interested witnesses. This, we say so on account of the fact that their evidence has been consistent and they have also remained unshaken during their cross-examination. Even otherwise, it would be a natural consequence that, in case, the appellant was found abusing outside the house of these witnesses who happened to be the mother, the son and the daughter, it would be natural for them to run outside the house to see why a person is abusing.

59. It has been consistently held by the Apex Court that Courts must be cautious and careful while weighing such evidence given by witnesses who are partisan or interested, but such evidence should not be mechanically discarded. It will be useful to refer to the judgment of Masalte v. State of Uttar Pradesh reported at , relevant portion of which is reproduced below:

14. Mr. Sawhney has then argued that where witnesses giving evidence in a murder trial like the present are shown to belong to the faction of victims, their evidence should not be accepted, because they are prone to involve falsely members of the rival faction out of enmity and partisan feeling. There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the court as genuine whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses; Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to, failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.

60. Similar view has also been expressed in the case of State of Punjab v. Karnail Singh reported at AIR 2003 (90) Supreme Court 3613:

8. We may also observe that the ground that the witnesses being close relatives and consequently being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh and Ors. v. The State of Punjab in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed:

We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavored to dispel in - Rajasthan', . We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.

9. Again in Masalti and Ors. v. The State of U.P. this Court observed : (pp. 209-210 para 14):

But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.

10. To the same effect is the decision in State of Punjab v. Jagbir Singh and Lehna v. State of Haryana . As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. , normal discrepancies in evidence are those who ae due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be. Material discrepancies are those who are not normal, and not expected of a normal person. Courts have to lable the category to which a discrepancy may be categorized. While normal discrepancies do so. These aspects were highlighted in Krishna Mochi and Ors. v. State of Bihar etc. .

61.This view has again been reiterated recently in the case of State of NCT of Delhi v. Rani Kant Sharma and Ors. reported at , relevant portion is reproduced below:

11. In some cases persons may not like to come and depose as witnesses and in some other cases the prosecution may carry the impression that their evidence would not help it as there is likelihood of partisan approach so far as one of the parties is concerned. In such a case mere non-examination would not affect the prosecution version. But at the same time if the relatives or interested witnesses are examined, the court has a duty to analyze the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence was biased. Whenever a plea is taken that the witness is partisan or had any hostility towards the accused, foundation for the same has to be laid. If the materials show that there is partisan approach, as indicated above, the court has to analyze the evidence with care and caution. Additionally, the accused persons always have the option of examining the left out persons as defense witnesses.

62. Again in the case of Manoj v. State of Tamil Nadu reported at 2007(5) JT 145.

9. In regard to the interestedness of the witnesses for furthering the prosecution version, relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if a plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible.

10. In Dalip Singh and Ors. v. The State of Punjab it has been laid down as under:

A witness is normally to be a considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rue. Each case must be limited to and be governed by its own facts.

11. The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan in which Vadivelu Thevar v. State of Madras was also relied upon.

63. Applying the aforesaid principles to the facts of the present case, we find that there is nothing to show that PWs-1 to 3 have deposed falsely with a view to shield the real culprit. Further there is nothing to show that their evidence is not credible.

64. The statement of PW-1 (Exhibit PW1/A) was recorded soon after the incident on 24.10.1999. In this statement itself PW-1 had named the appellant. This statement is also relevant from the point of view that at this point of time Dina Nath was still alive and, thus, it cannot be said that PW-1 Smt. Shanti Devi and PW-3 Km. Geeta, sister of the deceased have falsely implicated the appellant in order to save Daya Ram since at the time when statement was made by Smt. Shanti Devi, Dina Nath was alive.

65. We find that although the weapon of offence which is alleged to be a knife, has not been recovered, but nothing material would turn on this, in view of the fact that this fact has not been disputed by the appellant nor any suggestion has come on record to show that the weapon of offence was not a knife. Even otherwise evidence of PW-7 Dr. S.K. Khanna, Professor, Department of Forensic Foreighsic Medicine who conducted post mortem of the body of the deceased Sh. Dina Nath, found external injuries on his body. The nature of injuries have been detailed in the paragraphs aforgoing. In the cause of death, PW-7 has conclusively held that injury nos.1 and 2 were caused by a sharp edged weapon. Injury No. 1 along with damage to the brain was sufficient to cause death in the ordinary course of nature. PW-7 was cross-examined with regard to injury No. 1. Although in cross-examination, he has stated that he cannot gage the exact counts of sharp edged weapon used for causing injury nos.1 and 2 nor could he say about the breadth and width of the sharp edged weapon which was used in this case. No suggestion has been put whether the injury was not caused by any sharp edged weapon or knife.

66. Taken into consideration that as per the eye-witnesses after inflicting the knife blows, the appellant ran away from the spot surely, the weapon of offence could have been dropped or thrown anywhere and, thus, no recovery of the weapon was made out. No doubt has been created by the appellant that the injury was not caused by the knife and the same was caused by some other weapon. Thus, we are of the view that non-recovery of the weapon of offence cannot in the facts and circumstances of the case be fatal and cannot weaken the case of the prosecution.

67. PWs-1 to 3 are no doubt close relations of the deceased but they are also eye-witnesses and no doubt while relying upon their evidence, the Court must be cautious, but if once the Court finds their evidence to be truthful and reliable, the same can be relied upon.

68. We agree with the view taken by the Trial Judge that the prosecution has been able to establish the case against the appellant without any shadow of doubt and we do not find any infirmity in the judgment of the Trial Court holding the appellant guilty of the offence under Sections 302 and 307 of the Indian Penal Code, resultantly the appeal is dismissed.