Bishan @ Binny @ Bagga & Anr. vs State
2009 Latest Caselaw 1204 Del

*                     IN THE HIGH COURT OF DELHI

%                            Judgment reserved on : 13.03.2009
                            Judgment delivered on: 06.04.2009

+                         CRL.A. No.165/2001

BISHAN @ BINNY @ BAGGA & ANR.         ...Appellants
                  Through : Mr. Raman Sawhney, Advocate

                                versus

STATE                                          ...Respondent
                          Through :Ms. Richa Kapoor, Advocate


CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?     Yes

3. Whether judgment should be reported in Digest?         Yes


: PRADEEP NANDRAJOG, J.

1. Three persons were sent for trial. They are

appellant No.1 Bishan @ Binny @ Bagga (hereinafter referred

to as appellant No.1), Balbir @ Billu @ Mukesh (hereinafter

referred to as appellant No.2) and Babli. They were charged

with the offence of having murdered Satish Kumar. Bishan @

Binny @ Bagga was additionally charged for the offence of

unlawful possession of a dagger; an offence punishable under

Section 27 of the Arms Act.

2. Vide impugned judgment and order dated

27.1.2001 Babli has been acquitted of the charge framed

against him. Appellant No.1 has been convicted for the

offence of murdering Satish Kumar as also for the offence

punishable under Section 27 of the Arms Act. Appellant No.2

has been convicted for the offence of murdering Satish Kumar.

3. Case of the prosecution was that the accused had

enmity with the deceased Satish Kumar and they hatched a

conspiracy to kill him. The deceased had to attend a court

hearing at Tis Hazari Courts on 27.7.1991. Accused Babli

enticed him to have liquor and the other two accused joined

and after intoxicating Satish Kumar, the appellants stabbed

him with knives and all the accused ran away. That Devender

Kumar PW-7 had witnessed his brother being stabbed. On

being apprehended, the appellants made confessional

statements admitting their guilt and disclosed to the police

that they had hidden the knives used by them to murder the

deceased and thereafter led the police to the place where they

had hidden the knives which were recovered. They also told

the police that when they were attacking the deceased their

shirts got stained with his blood and that they had hidden the

shirts, which were got recovered by them. That the two knives

were stained with blood. The shirts, one each belonging to the

appellants which were got recovered, were also stained with

blood. The serologist reported that the blood on the knives

and the shirts was of human origin and of group „B‟ i.e. the

same group as that of the deceased. Further, it was the case

of the prosecution that the deceased was removed from the

place of occurrence to Hindu Rao Hospital in a TSR by

Const.Shahji John PW-22 and on the way to the hospital, the

deceased was muttering that Binny and Biloo i.e. the

appellants had caused the injuries to him.

4. To put it in a nut shell, the incriminating evidence

which required to be proved, to sustain the case of the

prosecution, would be:-

A. Enmity of the accused with the deceased.

B. Eye witness account of Devender which directly

would have implicated the accused.

C. That the deceased was muttering the names of

Binny and Biloo as the ones who had attacked him on the way

to the hospital, which was heard by Const.Shahji John PW-22.

D. Recovery of knives stained with blood and recovery

of the shirts worn by the appellants at the time of commission

of the crime which were stained with blood; the blood group on

all being the same as that of the deceased.

5. Vide impugned judgment and order dated

27.1.2001, acquitting Babli, the learned Trial Judge has held

that there was no admissible evidence against Babli and that

the statement of the co-accused disclosing to the police that

Babli had enticed the deceased with the lure of alcohol and

had thus facilitated the commission of the crime, was

inadmissible evidence.

6. Against the appellants, learned Trial Judge has held

that the testimony of Devender PW-7 was credible and that

certain inconsistencies pointed out by the defence were

immaterial and the eye witness account by Devender

established that the appellants had stabbed the deceased;

that the deposition of Const.Shahji John PW-22 that on the way

to the hospital the deceased was muttering that Binny and

Biloo had stabbed him was trustworthy and that Binny and

Biloo are the appellants; that the blood stained shirts

recovered pursuant to the disclosure statements of the

appellants as also blood stained knives recovered pursuant to

their disclosure statements, all of which were found stained

with human blood of same group as that of the deceased, were

incriminating evidence against them. Thus, the appellants

have been convicted as aforenoted.

7. Before analyzing the evidence on record, it

becomes relevant to note the same.

8. That Satish Kumar was murdered is not in dispute.

It has to be so for the reason the post-mortem report Ex.PW-

12/A pertaining to him record the following injuries:-

"1) One lacerated wound size 3c.m X 2c.m. on the occipital region of the scalp.

2) One lacerated wound size 2c.m.X 1c.m. muscle deep were seen on the upper border of scapula.

3) One stitched wound size 1.2cm was seen just below the outer two third of the left collar bone.

4) One stitched wound size 2c.m. was seen 3c.m.below the middle part of the left collar bone.

5) One rubber tube was seen fixed below the injury no.2.

6) One incised wound size 3c.m.X1c.m.X? was seen placed obliquely over the left posterior auxiliary fold.

7) One rubber tube was found fixed on the left lower ankle of the chest.

8) One incised wound size 2.5c.m.X1c.m.X? was seen on the left lumber region 4c.m. above the left iliac crest.

9) One incised wound size 2c.mX0.5c.m muscle deep on the left on it‟s lower outer aspect.

10)Stitched wound size 10‟‟ in length in the middle line of abdomen was seen which was an operational wound."

9. It was opined by the doctor conducting the post-

mortem that injury Nos. 6 and 8 were sufficient to cause death

in the ordinary course of nature. The cause of death was shock

and haemorrhage resulting from the injuries.

10. It is also not in dispute that the place of occurrence

is near the canteen in Tis Hazari Courts adjoining the Lawyers‟

Chamber Block and the time of the occurrence is around 8:30

PM.

11. Information was received by the police when DD

Entry No.32, Ex.PW-4/A was recorded at 8:30 PM by Const.

Joginder Singh PW-4 at police post Tis Hazari that an advocate

had informed on the phone that a person has been stabbed

near the canteen. ASI Gopal Ram PW-19, Const.Shahji John

PW-22 and Const. Suresh Kumar PW-5 who were at the police

post immediately left for the spot and saw a man lying injured

with blood all over. At the asking of ASI Gopal Ram,

Const.Shahji John brought a TSR in which he removed the

injured to Hindu Rao Hospital where he was admitted, as

recorded in the MLC PW-9/A at 8:50 PM.

12. Dr. M.M.Gupta PW-9 prepared the MLC Ex.PW-9/A

after examining the injured and on the MLC, apart from noting

the injuries which could be seen by the eye, noted as under:-

"Name- Unknown, Son of- Unknown, Aged approximately 30 years, brought by Const. Shahji John

on 27.7.1991 at 8.50 P.M. with the alleged history of being stabbed by someone."

13. He further recorded on the MLC that the patient

was in a semi-conscious condition and his general condition

was poor and smell of alcohol was present in the mouth of the

injured.

14. After the injured had been removed to the hospital

and whilst ASI Gopal Ram was still at the spot where the

injured was found, Devender Kumar PW-7, reached the spot

and told ASI Gopal Ram that he was the brother of the

deceased but refused to make any statement and insisted that

he would first like to meet his brother. Thereupon ASI Gopal

Ram and Devender Kumar went to Hindu Rao Hospital.

Devender saw his brother and thereafter made a statement

Ex.PW-7/A which was recorded by ASI Gopal Ram who made

an endorsement Ex.PW-19/A thereon and forwarded the same

through Const.Shahji John at 10:10 PM, as recorded in the

endorsement, for an FIR to be registered. At the police station

the FIR Ex.PW-14/A was registered at 10:25 PM.

15. The statement Ex.PW-7/A of Devender Kumar PW-7,

which has formed the basis of the FIR is in vernacular.

Translated in English, it reads as follows:-

"Statement of Shri Devender Kumar S/o Shri Laxmi Narayan R/o 196/7 CD-9 Thansingh Nagar, Anand Parbat Delhi, Age 21 years:-

I reside at the abovementioned address with my parents and siblings. I make lamp shades at home for a living. My brother Satish also makes dibba at home. That today in the morning my brother Staish left the house after informing us that he was going to attend his hearing before the court. That when Satish did not return home by 7:00 PM we got worried, I left for Tis Hazari to look for him after informing my wife. While looking for my brother I reached the advocates‟ chambers near Pull Mithai at Tis Hazari. That at around 8:25 PM I saw my brother Satish quarrelling near the lawyer‟s canteen with [email protected] Bagga and [email protected] Billu who are known to me and reside near our house at Gali no.2 and Gali no.3 Anand Parbat respectively. That while I was heading towards them both [email protected] Bagga and [email protected] Billu stabbed Satish several times with knifes on his chest and stomach in front of my eyes they said that they were going to finish him off today. That when I tried to raise an alarm both of them started chasing me but I managed to escape. That thereafter both of them ran away towards Pull Mithai. That I returned to the spot where my brother had fallen down on the ground owing to the stab injuries and blood had started to ooze out of his wounds. I immediately ran towards the road outside the court premises to fetch a scooter to remove my brother to the hospital. That by the time I returned with the scooter you had already reached the spot with the police and my brother had already been removed to the hospital. That after searching for the accused persons for a short while I came to the Hindu Rao Hospital with you where my brother is being treated. That my brother is not fit for making a statement. Let appropriate legal action be taken against Binny and Balbir. The statement has been read over to me and it is correct."

16. Bir Singh PW-21, SHO of PS Subzi Mandi within

jurisdiction of which police station Tis Hazari Court Complex

was situated was given the information of the crime and hence

he proceeded to the place of occurrence and therefrom to

Hindu Rao hospital. At the hospital, the blood stained shirt,

vest, pant and the underwear of the injured were handed over

by the doctor to Const.Rohtash Kumar PW-6, the duty

constable at Hindu Rao Hospital, who in turn handed over the

same to Inspector Bir Singh PW-21 who seized the same vide

seizure memo Ex.PW-6/A.

17. From the place of the occurrence, ASI Gopal Ram

lifted blood stained earth and control earth vide memo Ex.PW-

5/B and prepared the rough site plan Ex.PW-19/B at the

instance of Devender PW-7.

18. Satish Kumar expired at Hindu Rao Hospital on

28.7.1991 at about 4:20 A.M. The body was seized and sent

for autopsy and on 28.7.1991 at 10:40 A.M. Dr. L.K. Barua PW-

12 conducted the post-mortem and noted the injuries on the

person of the deceased as noted in para 8 above and gave his

opinion about the cause of death of the deceased as noted in

para 9 above.

19. The police searched for the accused. As claimed by

Inspector Bir Singh PW-21, he received information that

appellant Bishan was seen at Old Delhi Railway Station. On

reaching the station he claims to have seen both the

appellants who were arrested on 2.8.1991 at Old Delhi Railway

Station. They were interrogated. Bishan made a disclosure

statement Ex.PW-16/A, inter alia, admitting his involvement in

the crime, and further disclosed that he had stabbed the

deceased with a knife which he had thrown in bushes in the

precincts of Tis Hazari Court Complex and he volunteered to

point out the spot where he had thrown it. He further

disclosed that he had concealed a full sleeve shirt which he

was wearing when the crime was committed and that he had

also concealed a half sleeve shirt of Mukesh, which Mukesh

was wearing when the crime was committed. He disclosed

that both the shirts were stained with blood and that he could

get both the shirts recovered. On being interrogated, Mukesh

made a disclosure statement Ex.PW-16/B admitting his

involvement in the crime and that he had used a knife to stab

the deceased which he had thrown in bushes in the precincts

of Tis Hazari Court Complex which place he volunteered to be

pointed out. Thereupon, both the appellants, led the police to

the respective place where they claimed to have thrown the

the knives. Bishan pointed out a bush at the rear of shop

No.15, Khanna Market, adjoining Tis Hazari Court Complex and

from within the bush, got recovered a knife which was seized

vide seizure memo Ex.PW-1/E. Mukesh led the police to a bush

a little distance away and from within the bush, got recovered

a knife which was seized vide seizure memo Ex.PW-1/B. The

sketch Ex.PW-1/C of the knife got recovered by Mukesh was

drawn by Inspector Bir Singh PW-21 who also prepared the

sketch Ex.PW-1/A of the knife got recovered by Bishan.

20. The blood sample of the deceased as also his

clothes stained with blood, which were handed over by the

doctor at Hindu Rao Hospital to the police, as also the two

blood stained shirts, one with full sleeves and the other with

half sleeves, got recovered by Bishan as also the two knives,

were sent for serological examination and as per report Ex.PW-

21/F, it was opined that all the items had presence of human

blood and the group thereof was „B‟. On 7.8.1991, the two

knives were sent for opinion to Dr.L.K.Barua who vide report

Ex.PW-12/B gave the opinion that the injuries on the deceased

could possibly be caused by either or by both the knives.

21. At the trial, Const. Joginder Singh PW-4, proved the

DD Entry No.32, Ex.PW-4/A recorded by him. Const. Rohtash

Kumar PW-6 proved having handed over the blood stained

clothes of the deceased to the IO vide memo Ex.PW-6/A.

Dr.M.M.Gupta PW-9 proved the MLC Ex.PW-9/A and deposed

that the patient was brought to the hospital at 8:50 PM on

27.7.1991 by Const.Shahji John. Inspector Devender Singh

PW-10, a draftsman proved the site plan to scale Ex.PW-10/A

and deposed that he prepared the same on 8.10.1991 with the

assistance of Devender Kumar. Dr. L.K.Barua PW-12 proved

the post-mortem report Ex.PW-12/A and his opinion Ex.PW-

12/B pertaining to the two knives which were sent to him for

opinion. Const. Amrit Lal PW-13, a photographer, deposed and

proved that the photographs Ex.PW-1/A/1 to 3; negatives

whereof were Ex.PW-1/A/4-6 were taken and developed by

him.

22. Ignoring the testimony of a few formal police

witnesses who deposed to the receipt of various seized articles

in the Malkhana and further movement thereof to the doctor

who conducted the post-mortem and the FSL Laboratory, we

note the testimony of such witnesses, in respect whereof,

submissions were made during argument of the appeal on the

issue, whether Devender PW-7 was at all an eye witness and

whether Const.Shahji John truthfully deposed that on the way

to the hospital, in an inebriated condition the deceased was

muttering the names of Binny and Biloo and was saying that

he would see them; if yes, the evidentiary value thereof.

23. Devender Kumar PW-7, deposed that on the day of

the incident i.e 27.7.1991, his brother Satish Kumar (the

deceased) had left the house in the morning to attend a court

hearing at Tis Hazari Complex. When Satish Kumar did not

return home till about 7:00 PM, he went to Tis Hazari Courts,

looking for him and at about 8:00 or 8:15 PM, near the canteen

at Lawyer‟s Chamber Block Criminal Wing at Tis Hazari, he saw

his brother Satish being beaten by Binny @ Bishan @ Bagga

and Mukesh @ Billu @ Balbir. That the first blow with a knife

was inflicted by Mukesh at the back of the neck of his brother

and thereafter both Binny and Mukesh indiscriminately

stabbed his brother saying that they would finish him. He

raised an alarm at which the said accused, with knives in

hands, ran after him and he had to flee. That when he looked

back to see whether the accused were after him, he saw them

running in the opposite direction. To remove his brother to the

hospital he took a TSR and when he returned to the spot with

the TSR he found that the police had removed his brother to

the hospital, so he went to Hindu Rao Hospital where his

brother Satish was unable to make any statement and that the

police recorded his statement Ex.PW-7/A which was signed by

him at point A. That at the hospital, the clothes of Satish were

seized vide memo Ex.PW-7/B which bore his signature at point

A. Thereafter, he came back to the spot with the police and

the blood stained earth was seized vide seizure memo Ex.PW-

5/A which was signed by him at point B. That the police lifted

blood from the spot vide seizure memo Ex.PW-5/B which was

signed by him at point B. That he along with the police had

gone in search of the accused persons to their house but they

were not to be found. That the pointing out memo Ex.PW-7/B

signed by him at point A was drawn after he took the police to

the house of Billoo and that the pointing out memo Ex.PW-7/D

signed by him at point A was drawn after he took the police to

the house of Binny. That the pant Ex.P-1, the underwear Ex.P-

2, the bushirt Ex.P-3 and the vest Ex.P-5 belongs to his

brother. On a clarificatory question being put, he clarified that

the shirt Ex.P-4 was the one which was being worn by his

brother at the time of the occurrence.

24. On being cross examined, Devender stated: „My

statement was recorded by police first at the place of

occurrence and then in the hospital. In the hospital, my

statement was recorded at around 9-9:15 PM.' On being cross

examined as to after how much time he returned to the spot

after he fled, when as deposed to by him he was chased by the

assailants, he replied: „I took about 5-7 minutes in coming

back to the spot with the scooter.' On being questioned,

whether his brother was alive when he reached the hospital,

he replied: „My brother Satish was still alive when I reached

the hospital. He was crying mildly and saying that Biloo and

Bagga had stabbed him.' On being further cross examined on

what happened thereafter and did he interact with the police

when he returned to the spot, he replied 'I had given the

names of culprits to the police at the spot. However, my

statement was recorded in the hospital.' On being cross

examined as to how he reached Hindu Rao Hospital, he

replied: „I was taken to Hindu Rao Hospital by the police in

their van and not in TSR. I was not allowed to see my brother

in the hospital nor I met the doctor who had attended my

brother.' On being cross examined whether he went to the

hospital with the police when he met the police immediately

on returning to the spot or after some time, he said: „Before I

went to hospital with the police, police had searched around

place of occurrence for the search of accused persons.‟ On

being cross examined whether he had told the police when his

statement was recorded in the hospital, that in the hospital he

heard his brother crying mildly saying Biloo and Bagga had

stabbed him, a statement which he made in his examination in

chief, he admitted that he did not tell police the said fact.

25. Surender Kumar PW-8, brother of the deceased,

deposed that he identified the dead body of his brother at the

hospital. On being cross examined he stated that he came to

know about the incident at 9/9:25 PM and reached the hospital

at around 10:30 PM and that Devender was not present at the

hospital when he reached and that Devender came to the

hospital after about 20-25 minutes of his arrival in the hospital

and that Devender told him the names of the assailants.

26. Const.Suresh Kumar PW-5, deposed that on

27.7.1991 on receipt of information that a person had been

stabbed near Chamber No.279, Criminal Side, Lawyers‟

Chambers, he along with ASI Gopal Ram and Const.Shahji John

went to the place of occurrence and saw a man lying in an

injured condition, who was removed to the hospital by

Const.Shahji John. That thereafter Devender arrived at the

spot and was interrogated at the spot. They searched for

accused Binny and Balbir. He was left to guard the spot and

the IO went to the hospital and returned to the spot at around

10:30 PM and collected blood earth sample and blood. On

being cross examined, with reference to his statement that

Devender was interrogated at the spot and they had searched

for accused Binny and Balbir, he stated: „Devender did not tell

the IO in my presence, the names of persons, who had stabbed

Satish Kumar..... IO did not record the statement of Devender

in my presence at the spot.' On being cross examined, as to in

which vehicle the IO and Devender went to the hospital, he

replied: „IO and Devender had gone in TSR to the hospital,

which TSR was brought by Devender.'

27. Const.Rohtash Kumar PW-6 deposed that on

27.7.1991 he was posted as the Duty Constable in Hindu Rao

Hospital and at around 8:50 PM, a constable whose name he

did not remember, brought an unknown injured in the hospital.

A baniyan (vest) and a shirt was handed over by the doctor to

him, which in turn, he handed over to the IO, vide memo

Ex.PW-6/A.

28. ASI Gopal Ram PW-19 deposed that on 27.7.1991

he was on emergency duty at police post Tis Hazari Courts and

at 8:30 PM received DD No.32 regarding the incident in

question and along with Const.Shahji John and Const.Suresh

Kumar he reached the place of the incident near Chamber

No.279 and saw a person lying near the chamber with blood all

over. He asked Const.Shahji John to bring a TSR. He

immediately brought a TSR in which the injured was removed

to Hindu Ram Hospital with Const.Shahji John. He deposed

further: „After sending injured to hospital one person Devender

Kumar contacted me at spot and told me that he was younger

brother of deceased and he made statement in hospital as

witness insisted to make statement after seeing his brother.'

(NB: We have verbatim copied the aforenoted deposition).

29. He deposed that he recorded the statement Ex.PW-

7/A and made his endorsement Ex.PW-9/A and sent the same

through Const.Shahji John for FIR to be registered and took the

parcel containing the clothes of the deceased and returned to

the spot from where he seized blood and blood control earth.

That he prepared the rough site plan Ex.PW-19/B with the

assistance of the complainant. That the accused were

searched as per information given by the complainant but

could not be traced.

30. On being cross examined he stated: 'I was not

aware about name of culprit till I reached hospital.... Injured

was alive when I reached place of incident. I asked from him

about incident but he could not speak, even he could not tell

his name.' On being questioned as to whether he interacted

with the injured in the hospital, he replied: „I tried to have

talked with him there also but was unable to speak. I met

doctor also. I requested doctor to allow me to have talked with

injured but doctor did not permit me.'

31. Const.Shahji John PW-22 deposed that on 27.7.1991

he was posted at PP Tis Hazari and after receiving information

regarding stabbing, accompanied by Naresh Kumar and Suresh

Kumar, went to chamber No.279, criminal side, Tis Hazari and

saw a person lying in a pool of blood. That he took one TSR

from nearby hospital and came to the place of the incident and

took the injured to the hospital and got him admitted at Hindu

Rao hospital. That the injured was intoxicated and was

naming Binny and Billoo and was saying that he would see

them. On being cross-examined, he stated that he had told

the duty constable at the hospital that the injured was naming

Binny and Billoo and was saying that he would see them. He

admitted that he did not tell any other senior police officer

about said fact but justified by volunteering that he did not do

so as there was no occasion for him to tell anybody.

32. As noted above, the learned Trial Judge has

believed that Devender was an eye witness. We have our

doubts. The reason of our doubt is that admittedly Devender

was not present when ASI Gopal Ram PW-19, Const.Shahji John

PW-22 and Const.Suresh Kumar PW-5 reached the spot, soon

after 8.30 PM when information of a person being stabbed was

recorded at the Police Post of Tis Hazari, vide DD No.32. No

doubt, Devender has deposed that he had left the spot where

his brother was stabbed because he was forced to so do, when

the appellants chased him as they saw him making a noise

and that he returned to the spot with a TSR when he realized

that the appellants had run away. But, neither ASI Gopal Ram

PW-19 nor Const.Suresh Kumar PW-5 who remained at the

spot after Const.Shahji John PW-22 removed the injured to the

hospital in a TSR, have deposed that they saw Devender

coming to the spot with a TSR. As per Surender Kumar PW-8,

the brother of the deceased, he i.e. Surender Kumar learnt

about his brother being stabbed at around 9/9.25 PM and he

reached the hospital at around 10.30 PM. Devender was not

present in the hospital by that time, as deposed to by

Surender Kumar. As per Surender Kumar, his brother

Devender came to the hospital after about 20-25 minutes and

told him the names of the assailants. To explain the delay in

reaching the hospital, Devender has introduced the theory that

before going to the hospital he and the police went to search

for the accused persons. It is just not believable that ASI

Gopal Ram PW-19 would go about searching for the accused

without recording the statement of Devender and ensuring

that an FIR is registered. It has to be noted that ASI Gopal

Ram PW-19 has categorically deposed that when Devender

came to the place of the incident after his brother had been

removed in a TSR to the hospital, he refused to make any

statements to him and insisted that he would first see his

brother in the hospital and then make a statement. The said

conduct of Devender is most unnatural for a brother who has

witnessed a brutal assault on his brother, of not telling a police

officer at the first available opportunity as to what had

happened. Devender has deposed that he gave the names of

the culprits to the police at the spot. This is in direct variance

with the deposition of ASI Gopal Ram PW-19 who has

categorically deposed that Devender refused to tell him

anything at the spot and insisted on first seeing his brother in

the hospital. It is not in dispute that Devender‟s statement

Ex.PW-7/A was recorded at the Hindu Rao hospital. It has

further to be noted that at one stage Devender claims that his

brother Satish was alive when he reached the hospital and was

crying mildly and saying that Billoo and Binny had stabbed

him, but later on contradicted himself when he deposed that

he was not allowed to see his brother in the hospital nor he

met the doctor who had attended to his brother. It is apparent

that Devender was buying time to think of a plausible

statement to be made. This is the reason why he refused to

make any statement to ASI Gopal Ram when he first came to

the spot and insisted that he would first like to meet his

brother. Only after reaching the hospital, Devender made the

statement to ASI Gopal Ram. Being conscious of the fact that

in view of his belated statement and not telling anything to ASI

Gopal Ram at the first available opportunity, his being an eye

witness may be doubtful, while deposing in court, Devender

introduced the fact of the deceased having told him that Billoo

and Binny had inflicted the injuries on him i.e. has tried to

introduce a dying declaration of his brother. But, at the same

time, Devender wanted to introduce the supremacy of his

being an eye witness, and thereby to discount that his brother

possibly told him something, he stated that at the hospital he

was not allowed to see his brother nor he met the doctor who

attended to his brother at the hospital.

33. We note that Const.Suresh Kumar PW-5 has also

introduced the fact that when Devender arrived at the spot he

was interrogated at the spot and all searched for accused

Binny and Balbir i.e. facts which were introduced in his

testimony by Devender. But, even Const.Suresh has not

deposed truthfully, for the reason he has stated that Devender

and I.O. went to the hospital in a TSR, a fact neither deposed

to by either Devender or the I.O. As noted above, Devender

has deposed that he went to the hospital in a police van. This

may appear to be a minor variation, but assumes significance

because the intention behind the statement is to corroborate

Devender that after he fled from the place of occurrence on

being chased by the accused and on realizing that the accused

were not following him, he returned with a TSR to remove his

brother to the hospital and since in the meanwhile the police

had already removed his brother to the hospital, Devender and

ASI Gopal Ram left for the hospital in the TSR. As noted above,

Const.Suresh Kumar contradicted himself when, on being

cross-examined, he stated that Devender did not tell I.O. the

names of any person who had stabbed his brother in his

presence nor did the I.O. record any statement of Devender.

Juxtaposing the statements of Devender and Suresh Kumar

with reference to claim of Devender Kumar that he told ASI

Gopal Ram at the spot the names of the accused and before

going to the hospital everybody searched for the accused and

the statement of Suresh Kumar that in his presence no such

names were disclosed, it is apparent that the two witnesses of

the prosecution have deposed facts which are irreconcilable

opposites. Whereas two police officers claim that Devender

did not make any statement at the spot, only one i.e.

Const.Suresh Kumar claims that Devender made a statement

at the spot but even he, on being cross-examined went about

contradicting himself inasmuch as he deposed that in his

presence Devender did not tell the I.O. the names of the

persons who had stabbed Satish Kumar. If Devender did not

tell anything to the I.O. in the presence of the witness,

wherefrom could Const.Suresh Kumar claim that Devender told

something to the I.O? It remains a mystery.

34. These are our reasons to hold that it is doubtful that

Devender was an eye witness to the incident. We note that

the aforesaid features of the deposition of Devender, Suresh

Kumar, Surender Kumar and ASI Gopal Ram have not been

noted by the learned Trial Judge.

35. Did Shahji John hear the injured muttering that

Billoo and Binny would be seen by him?

36. Shahji John PW-22, has so deposed. His testimony

stands contradicted on three counts. Firstly, ASI Gopal Ram

has responded, on being cross-examined, that though the

injured was alive when he reached the place of incident, he i.e.

the injured could not speak and hence did not respond when

he asked him about the incident. In fact, ASI Gopal Ram has

deposed that the injured could not even tell his name, a fact

corroborated in the MLC of the deceased, where it is recorded

that the victim brought is unknown i.e. neither the name is

known nor the parentage is known. With reference to whether

the injured was in a position to speak in the hospital, ASI Gopal

Ram has categorically deposed that he tried to speak to the

injured at the hospital but the injured was unable to speak.

The second count on which Shahji John stands contradicted is

the fact recorded in the MLC of the deceased that the patient

was not only intoxicated but was semi-conscious and his

general condition was poor. It is apparent that the semi-

conscious condition of the injured was so poor that he could

not even tell his name, for had he been even in a position to

comprehend somebody asking him his name, he would have

responded thereto. A visit to the emergency ward in a hospital

would show to one and all that the most rudimentary form of

testing the condition of a patient brought to the hospital, used

since time immemorial by the doctors, is to nudge, pinch or

give a mild shake to a patient, to not only see the natural

response of the brain thereto, but also to elicit some

information i.e. the history of how the injury was sustained,

because the said information may be very crucial for the initial

treatment to be given. Otherwise, till the diagnosis is

complete, the doctor concerned cannot decide what treatment

is to be given. Lastly, on being cross-examined, Shahji John

has stated that he did not tell any police officer that the

injured was muttering the names Binny and Billoo. He justified

his not telling so, by stating that he had no occasion to do so

because nobody asked him. Shahji John is a constable in the

Delhi Police and is not a novice. Surely, he knows the

importance of volunteering a useful information to the police

and under the circumstances, if he had heard the deceased

muttering the names of the appellants, he would have

disclosed said fact most voluntarily to ASI Gopal Ram. His not

having done so casts a very serious doubt that the deceased

muttered the names Billoo and Binny which were heard by

him. It is important to note that Const.Shahji John has

deposed that he told the fact to Const.Rohtash Kumar PW-6,

that the injured was naming Billoo and Binny and he was

saying that he would see them. If this be so it becomes all the

more surprising that Const.Shahji John did not disclose the said

fact to ASI Gopal Ram. Const.Rohtash Kumar PW-6 has not

deposed that Const.Shahji John told him that on the way to the

hospital the injured was naming Billoo and Binny and was

saying that he would see them. Thus, if not more, at least

benefit of doubt has to be given to the appellants.

37. That apart, as observed in the decision reported as

Nallapati Sivaiah Vs. Sub-Divisional Officer, Guntur, A.P. AIR

2008 SC 19 the Supreme Court has observed as under:

"The Dying Declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a Dying Declaration depends upon not only the testimony of the person recording Dying Declaration - be it even a Magistrate but also all the material available on record and the circumstances including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at proper conclusion. The court must satisfy to itself that the person making the Dying Declaration was conscious and fit to make statement for which

purposes not only the evidence of persons recording dying declaration but also cumulative effect of the other evidence including the medical evidence and the circumstances must be taken into consideration."

38. Therefore the only incriminating evidence that

remains against the accused is the recovery of blood-stained

knives and shirts of both the accused.

39. In the decision reported as Narsinbhai Haribhai Prajapati

v Chhatrasinh & Ors AIR 1977 SC 1753 the Supreme Court had

held that in the absence of any other evidence the

circumstances of seizure of blood stained shirt and dhoti from

the person of an accused and dharias from the houses of the

accused are wholly insufficient to sustain the charge of murder

against the accused.

40. In the decision reported as Surjit Singh v State of Punjab

AIR 1994 SC 110 a watch belonging to the deceased and one

dagger which was found to be stained with human blood were

recovered at the instance of the accused. It was held by the

Supreme Court that said recovery by itself, does not connect

the accused person with the murder of the deceased. It was

further held that said circumstance may create some suspicion

but the same cannot take the place of proof.

41. In the decision reported as Deva Singh v State of

Rajasthan 1999 Cri.L.J. 265 Supreme Court had held that

merely because a knife is alleged to have been recovered at

the instance of the accused would not lead to a conclusion that

the accused was the perpetrator of the crime of the murder.

42. In the decision reported as Prabhoo v State of U.P.

AIR 1963 SC 1113 a kulhari, a shirt and a dhoti which were

found to be stained with human blood were recovered from

the house of the accused, at his instance. Holding that it is well

settled that circumstantial evidence must be such as to lead to

a conclusion which on any reasonable hypothesis is consistent

only with the guilt of the accused and not with his innocence

and that from the mere production of the blood stained articles

by the accused, one cannot come to the conclusion that the

accused committed the murder inasmuch as the fact of

production cannot be said to be consistent only with guilt of

the accused and inconsistent with his innocence, for the

reason it is quite possible that someone else committed the

murder and kept the blood stained articles in the house of the

accused and that the accused might have produced the said

articles when interrogated by the police, the Supreme Court

acquitted the accused.

43. Insofar as circumstance relating to motive of the

appellant for causing the death of the deceased, suffice would

it to be state that the motive, by itself, is not a circumstance,

though it may be relevant in case of circumstantial evidence.

(See the decision of Supreme Court reported as Surjit Singh v

State of Punjab AIR 1994 SC 110).

44. The appeal is allowed. The impugned judgment

and order dated 27.1.2001 is set aside. The appellants are

acquitted of the charge of having murdered Satish Kumar. The

appellants are on bail. Their bail bonds and surety bonds are

discharged.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

April 06, 2009 mm