Bihari Lal & Anr. vs The State (Delhi Administration)
2009 Latest Caselaw 1269 Del

*       HIGH COURT OF DELHI : NEW DELHI

                     Crl. App. No.14 of 1994

%               Judgment delivered on: 9th April, 2009

1.Bihari Lal S/o. Sh. Khacheru
  R/o. Jhuggi No.399, Kalandar Colony,
  Seema Puri, Delhi.

2.Sh. Nathi Ram @ Nathi
  S/o. Sh. Khacheru,
  R/o. H.No.71, D Block,
  Old Seema Puri, Delhi                        ....Appellants

                     Through: Mr. Bhupesh Narula, Adv.

                              Versus

    The State (Delhi Administration)         ...Respondent.

                     Through: Mr. Sunil Sharma, Adv.


Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
HON'BLE MR.JUSTICE BADAR DURREZ AHMED

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

2. To be referred to Reporter or not?                      Yes

3. Whether the judgment should be reported
   in the Digest?                                          Yes




Crl. A. No.14/1994                              Page 1 of 34
 V.B.Gupta, J.

By way of present appeal, the above named

appellants have challenged the judgment dated 14th

December, 1993 of the Additional Sessions Judge,

Karkardooma, Delhi vide which they were convicted

under Section 302 read with Section 34 Indian Penal

Code (for short as „IPC‟) and sentenced to undergo

rigorous imprisonment for life and fine, of Rs.500/-

each, in default of payment of fine, to further undergo

rigorous imprisonment for six months.

2. During the pendency of the appeal, appellant

Bihari Lal was ordered to be released on interim bail

for 15 days, vide order dated 5th June, 1995 passed by

a Division Bench of this Court. Consequently, he was

released on 25th June, 1995 but failed to surrender on

the expiry of the period of bail. Proceedings for his

arrest were commenced by the Metropolitan

Magistrate, P.S. Seema Puri. Since appellant Bihari

Lal could not be arrested, he was declared as

proclaimed offender on 15th February, 1999.

Proceeding under Section 446 Cr.P.C. were initiated

against his surety and a penalty of Rs.10,000/- was

imposed upon the surety.

3. In view of the fact that appellant Bihari Lal is a

proclaimed offended consequently, this Court

appointed Sh. Bhupesh Narula, Advocate as Amicus

Curiae to represent him also before this Court since he

was already representing appellant No.2, Nathi Ram,

who is brother of appellant, Bihari Lal.

4. The brief facts of this case are that on 31st

October, 1990 at about 8.05 p.m., PW 2 Satbir Singh,

who is brother of the deceased Nawab, lodged a report

with Police Post, Guru Teg Bahadur Hospital that his

brother Nawab had been stabbed with a knife by Bihari

Lal and Nathi, the appellants in this case, in Kalandar

Colony, on which D.D. No.31 (Ex PW 2/B) was recorded

and the same was handed over to PW 15 Subhash

Chand, S.I. who along with Phool Singh, A.S.I., Satpal

Singh, Head Constable and Satbir Singh, Constable,

reached at the jhuggi of Bihari in Kalandar Colony and

found the dead body of Nawab which was lying there

on the cot in the jhuggi. There were cut marks on his

neck and blood was lying over his clothes as well as on

the ground. The dead body was identified by his

brother Satbir Singh PW 2 (who is the complainant).

PW 2 also got his statement recorded wherein he

stated that on that date at about 5.00 p.m., he along

with his brother Nawab had come to Kalandar Colony,

Dilshad Garden to see Bihari Lal who was known to

them earlier, since the wife of appellant Bihari Lal,

belonged to their village. Bihari Lal had invited his

brother Nawab to his jhuggi on that date. At that time,

Nathi, brother of Bihari Lal, was also present in the

jhuggi. Bihari Lal had already arranged for a bottle of

liquor and all of them started taking liquor.

5. While they were taking liquor, Bihari Lal and his

brother Nathi started abusing and quarrelling with

Nawab by saying that Nawab was having illicit

relations with their sister and for that reason they will

not leave him alive. Bihari and Nathi laid Nawab on

the cot and Nathi caught hold of Nawab while, Bihari

after lifting a knife from the jhuggi stabbed Nawab on

his neck and due to fear he (PW 2 Satbir Singh) ran

away from there. He informed at his house and lodged

a report with the police.

6. The present case was registered under Section

302/34 IPC against both appellants. The Investigating

Officer got the scene of occurrence photographed and

prepared a rough sketch of the place of occurrence.

After completing the proceedings and after lifting the

blood, blood stained earth controlled, two bags and a

bottle of liquor and the cot on which the dead body

was lying and after sealing these articles, he got the

dead body sent for post-mortem.

7. On 3rd November, 1990, on receiving secret

information, appellant Bihari was arrested in presence

of PW 2 Satbir Singh and Ram Avtar Singh. Appellant

Bihari Lal made a disclosure statement and thereafter

he got recovered the blood stained knife and blood

stained payjama.

8. On 6th November, 1990, appellant Nathi

surrendered in the Court and thereafter he was

arrested.

9. After completion of the investigation, the

appellants were charge sheeted accordingly and sent

for trial. Vide order dated 30th May, 1991, charges

under Section 302 read with Section 34 IPC were

framed against both the appellants. Both the

appellants pleaded not guilty and claimed trial.

10. Prosecution in support of its case examined all 15

witnesses.

11. Statements of appellants were recorded under

Section 313 of Code of Criminal Procedure (for short

as „Code‟).

12. Appellant Bihari Lal in his statement admitted

that he and deceased Nawab were known to each

other and were on visiting terms with each other.

However, he stated that he has been falsely implicated

in this case. He knew Nawab who was a bad

character. Previously, he had been living in Seema

Puri Area and had the company of bad characters and

also faced externment proceedings in the Court of

District Magistrate, Ghaziabad.

13. On the date of incident, in the evening hours, on

hearing noise he came out of his jhuggi. At a distance

of about 15 steps, he saw that a scooter was

surrounded by public. On seeing this, he reached

there and saw that Nawab was lying in the scooter in

injured condition and his neck was cut. However, he

was alive. Appellant Bihari has further stated in his

statement that he tried to start the scooter, but it did

not start, as the plug was missing from the scooter.

Then he along with three/four persons lifted Nawab

and brought him to his jhuggi and among them were

Alam and Shyam Lal. His clothes were blood stained

and his wife and grown up children were present in the

jhuggi at that time. He made Nawab lie on the cot and

poured some water in his mouth. Appellant Bihari Lal

further stated that Nawab had died in the jhuggi.

Thereafter, he telephoned the police at number 100

and then PW 1 Rohtash, brother of deceased (Nawab).

Police came thereafter, who recorded his statement

and also of Alam and Shyam Lal and also got their

signatures on some papers. The knife was taken from

his jhuggi on the same day i.e. on 30th October, 1990

along with other articles. It was a kitchen knife and

his clothes were also seized by the police in the police

station on the same day.

14. Appellant Nathi in his statement under Section

313 of the Code admitted that he, appellant Bihari and

deceased Nawab were known to each other and were

on visiting terms. He also stated that his brother‟s

wife Chameli belonged to village Lukhrada and

deceased Nawab and his brothers, PW 2 Satbir and PW

1 Rohtash also belonged to the said village.

15. This appellant denied his involvement in this case

and stated that he surrendered in the Court due to

harassment of the police. He is innocent and has been

falsely implicated in this case at the instance of police.

16. In their defence evidence, appellants examined

one witness.

17. It is contended by learned counsel for the

appellants that there is delay in recording of the FIR,

since the time of incident is of 5.00 p.m. whereas

D.D.No.31 (Ex. PW 2/B) was recorded in the Police

Post, Guru Tegh Bahadur Hospital at 8.05 p.m. on the

statement of PW2, Satbir Singh. The place of

occurrence is at short distance from this Police Post

and this report has been delayed and the matter was

reported at the Police Post after three hours. The

explanation given by PW2 that he first went to Seema

Puri which is 2 ½ or 3 Km. away to telephone his

brother and then came to Police Post and lodged the

report, is most unnatural and unbelievable and has

been made to cover the delay in lodging the FIR.

18. It is further contended that PW 2, who is the

brother of the deceased was residing at a place about

25/30 Km. away from the place of occurrence and as

he was not present at the scene of occurrence, that is,

why he lodged the report in the Police Post after three

hours, which shows that his presence was procured

after due deliberation to set him up falsely, as an eye-

witness.

19. Another contention is that when D.D. No.31 (Ex.

PW 2/B) was got recorded by PW 2, Satbir Singh at

8.05 p.m., he did not mention the details of the

incident and simply stated that his brother has been

stabbed by Bihari and Nathi. However, the F.I.R in

this case was registered at 9.15 p.m. on the statement

Ex PW 2/A given by PW 2, Satbir Singh. In this

statement he narrated the details of the incident,

which were not there in D.D. No.31 (Ex. PW 2/B). This

goes on to show that when he lodged D.D. No.31, at

that time, he did not know, the time and place of

occurrence and as to what had happened at the site.

Later on, he manipulated with the police and gave

complete details in the F.I.R.

20. Other contention is that, there is nothing on

record to show that PW 2, Satbir Singh was ever

invited by appellant Bihari Lal to his jhuggi. The story

given by PW 2 that liquor was consumed in the jhuggi

of appellant Bihari is falsified from the statement of

PW 15, Subhash Chand, S.I., who is the I.O. of this

case. PW 15 has stated that he did not notice any

smell of liquor from the mouth of PW 2 and there were

no glasses or utensils used for drinking liquor found

inside the jhuggi. Moreover, PW 2 was not medically

examined to ascertain the fact of consumption of

liquor. The story of the prosecution about the

consumption of liquor has been finally belied by the

doctor who conducted the post mortem. PW 13, Dr.

L.K. Barua had amply made it clear in his post mortem

report as well as in his statement, that he could not

trace any evidence of consumption of liquor by the

deceased.

21. It is further contended that if deceased and PW 2

Satbir Singh had gone to meet Bihari in his jhuggi then

why did the police not take that three-wheeler into

possession.

22. Another contention is that if PW 2, the brother of

the deceased, was present on the spot then why did he

not raise any alarm. In cross-examination, he admitted

that he did not try to save his brother or catch hold of

Bihari but had run away from there. These

circumstances also prove that the presence of PW 2, at

the spot is doubtful.

23. Another contention is that if some stains of blood

were found on the wall of the jhuggi then why no

sample of any stain on the wall of the jhuggi was taken

and sent to CFSL.

24. Another interesting aspect is that the I.O. did not

make any inquiry about the incident from any person

residing in the neighbourhood of the appellants. When

admittedly, the wife and children of appellant Bihari

were present in the jhuggi at the time of incident, then

why the police did not interrogate them or record their

statements.

25. Recovery of knife and pyjama at the instance of

appellant Bihari, is doubtful since I.O. did not join any

independent witness at the time of recovery of these

articles and the place of alleged recovery is an open

place, accessible to everyone.

26. The dead body was removed to the police station

instead of Mortuary and was kept in police station till

about 10.00 a.m., which goes to show that police had

no evidence of identification of the dead body before it

was removed from the spot.

27. There is no evidence against appellant Nathi that

he along with appellant Bihari caught hold of the

deceased and threw him on the cot. The case of

prosecution is that it was appellant Bihari who picked

up the knife lying in the jhuggi and stabbed the

deceased on his neck. Thus, there is no evidence to

connect the appellants with the commission of the

offence and the judgment of trial court is liable to be

set aside.

28. On the other hand, it is contended by learned

counsel for the State that PW 2, Satbir Singh, the real

brother of the deceased, who had witnessed the entire

incident, had given the true story. Though there are

certain minor contradictions, but these contradictions

are not material nor do they prove fatal to the case of

the prosecution.

29. It had been clearly established from the evidence

on record, that both the appellants committed the

murder of deceased Nawab, as the dead body of

deceased was found inside the jhuggi of appellant

Bihari and blood was also seized from inside the

jhuggi. This also proves, that the murder of the

deceased was committed inside the jhuggi of appellant

Bihari.

30. Appellant Bihari in his statement under Section

313 of the Code admitted that on the date of incident

he after hearing noise came out of his jhuggi and saw

Nawab lying in the scooter in injured condition and his

neck was cut. He has also admitted that he brought

injured Nawab to his jhuggi, and his clothes were

blood stained.

31. As per post mortem report and as per statement

of Dr. L.K. Barua, PW 13, who conducted the post

mortem of the body of the deceased, there were

injuries found on the neck of the deceased which

corroborates the prosecution story that appellant

Bihari has caused injuries on the neck of the deceased.

32. Moreover, appellant Bihari has got recovered his

blood stained pyjama Ex. P7 and knife Ex. P8 on which

the same blood group as that of deceased was found.

PW 13, Dr. L.K. Barua has also stated that the injuries

which were found on the dead body of the deceased

were possible with knife Ex. P8.

33. It is also contended that as per statement of PW 1

Rohtash Singh and PW 2, Satbir Singh, who are the

brothers of the deceased, the motive for appellants to

commit the murder of the deceased, has been well

established, as appellants were annoyed with the

deceased since he was having illicit relations with the

sister of the appellants.

34. In a criminal trial, the burden of proving the guilt

of the accused beyond reasonable doubt, always rests

on the prosecution and it never shifts. But if an

accused wants to rely on a particular fact for

discrediting a prosecution witness, that fact must be

adequately brought out in the cross-examination of the

prosecution witness.

35. Section 58 of the India Evidence Act, 1872 (for

short as „Evidence Act‟) lays down that facts admitted

need not be proved. This Section reads as under;

"58. Facts admitted need not be proved- No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."

36. Admissions for the purposes of trial, dispenses

with the proof of particular facts. This Section makes

no exception of criminal trials, but under the proviso,

the practice is to insist upon the proof of all the

essential facts. An admission by the accused in answer

to questions put by the court under Section 313 of the

Code cannot be utilized to fill up a gap in the evidence

for the prosecution.

37. In the light of these provisions, it is to be seen as

to what is the effect of the admissions made by Bihari

Lal in his statement under Section 313 of the Code.

38. The case of prosecution is that murder of

deceased Nawab took place in the jhuggi of appellant

Bihari Lal, who stabbed the deceased with a knife

while, appellant Nathi caught hold of the deceased.

The dead body of deceased Nawab, was lying on the

cot in the jhuggi. The three wheeler scooter of

deceased was found lying outside the jhuggi of

appellant Bihari Lal and there were cut marks on the

neck of Nawab and blood was lying over his clothes as

well as on the floor of the jhuggi.

39. Appellant Bihari Lal in his statement under

Section 313 of the Code, admitted that outside his

jhuggi at a distance of about 15 steps, he saw a scooter

which was being surrounded by the public. On

reaching there he saw Nawab was lying in the scooter

in injured condition and his neck was cut. He along

with 3/4 persons lifted Nawab and brought him to his

jhuggi. His clothes were blood stained and he made

Nawab to lie on the cot. He also stated that Nawab

had died in the jhuggi.

40. So, as per statement of appellant Bihari, deceased

Nawab had gone on his three wheeler scooter to meet

him and as per appellant Bihari‟s version, Nawab had

received wounds in his neck and was found lying in the

scooter and appellant Bihari brought Nawab to his

jhuggi and made him lie down on a cot and in his

jhuggi, deceased Nawab had died.

41. PW 2, Satbir Singh who is the real brother of

deceased who was present in the jhuggi of appellant

Bihari on the date of incident, had also corroborated

these fact that on the date of incident, they had gone

to the jhuggi of Bihari in a three wheeler scooter and

after having some drinks there, both appellants started

abusing the deceased and quarrelled with him. They

threatened the deceased that since he was having

illicit relations with their sister so they would not leave

him alive. Accordingly, both the appellants threw him

down on a cot. Appellant Nathi pinned him down while

appellant Bihari Lal stabbed in the neck of Nawab.

42. Thus, appellant Bihari admits that;

(i) He saw deceased Nawab lying in an injured

condition in a three wheeler scooter outside his jhuggi.

(ii) Deceased Nawab was lifted from the three

wheeler scooter by him and three/four other persons,

who brought Nawab inside his jhuggi.

(iii) Clothes of deceased were blood stained and

he was to made lie on a cot in the jhuggi.

(iv) Neck of deceased Nawab was cut.

43. In the light of these admissions made by appellant

Bihari Lal and in even view of the prosecution

evidence, especially that of eye witness PW 2, Satbir

Singh, we have to see whether the evidence produced

by prosecution connects the appellants with

commission of crime.

44. During the course of investigation, blood was

seized from inside the jhuggi. Appellant Bihari also got

recovered his blood stained pyjama Ex. PW 7 and the

knife Ex.PW 8. On these exhibits, the same blood

group, as that of the deceased was found. Doctor L.K.

Barua (PW 13) who conducted the post-mortem of the

body of the deceased, had also mentioned in his report

Ex.PW 13/B that the injuries which were found on the

dead body of the deceased, were possible with the

knife Ex.PW 8.

45. From the statements of PW1 Rohtash and PW 2

Satbir Singh, who are the brothers of the deceased,

motive for the appellants to commit the murder, also

stands prove since, both the appellants were annoyed

with the deceased, as he was having illicit relations

with their sister.

46. Much stress has been laid down by learned

counsel for the appellants that trial court failed to

appreciate the importance and value of the F.I.R. The

alleged incident took place at 5.00 p.m. while there has

been a delay of three hours in lodging the report and

the explanation given by PW 2 Satbir Singh, that he

first went to Seema Puri 2 ½ to 3 kms away to

telephone his brother and then went to police post,

Guru Tegh Bahadur Hospital to lodge a report, which

is most unnatural and unbelievable. This story has

been made just to cover the delay in lodging the FIR.

48. As far as delay of lodging of the FIR is concerned,

it has been laid down by the Supreme Court in Apren

Joseph alias Current Kunjukunju and Ors v. The

State of Kerala, AIR 1973 SC 1 that;

"Undue or unreasonable delay in lodging the F.I.R., therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the

prosecution version. In our opinion, no duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case. Mere delay in lodging the first information report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case."

49. In State of Himachal Pradesh v. Shree

Kant Shekari, AIR 2004 SC 4404 the Supreme

Court reiterated the same principles holding that;

"Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not."

50. As per statement of PW 2, Satbir Singh, he first

called his brother PW 1, Rohtash to inform him about

the incident and then reported the matter to the police.

His act seems to be quite justifiable. The evidence to

this effect seems to us to be trust worthy and has not

at all been shaken in the cross-examination.

51. As per Ex PW 2/B (D.D. No.31), PW 2 Satbir Singh

has stated that his brother Nawab has been stabbed

with a knife by Bihari and Nathi in Kalandar Colony

and they are holding him (Nawab) in the jhuggi.

52. So, PW 2 at the earliest reported about stabbing

of Nawab with a knife by both the appellants and also

about the fact that the appellants were holding him in

the jhuggi. In the F.I.R., recorded thereafter about one

hour, complete details of the incident were mentioned.

So, no advantage can be taken by the appellants on

this count.

53. Coming to the reliability of the eye-witness,

though it is correct that PW 2 Satbir Singh is the

solitary eye-witness in this case and is brother of the

deceased, but it is well-settled that quality of the

evidence is to be looked into and not the quantity.

Even if there is a solitary witness in a case and who is

reliable, conviction can be based on the testimony of

the solitary eye-witness alone.

54. In this regard reference may be made to

Vaidivelu Thevar v. The State of Madras AIR 1957

SC 614. There the question was whether the Court

can convict on the statement of solitary witness or not.

It was held that;

"(i) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.

(ii) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.

In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that "no particular number of witnesses shall in any case be required for the proof of any fact." The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses."

55. As per prosecution case, the fact that the body of

the deceased was found inside the jhuggi of the

appellants stand proved, as the same has been

admitted by the appellant Bihari in his statement

recorded under Section 313 of the Code.

56. The testimony of PW2 is natural and he acted in a

normal manner. His testimony is corroborated by the

doctor‟s Post Mortem report. Thus, he is a reliable

witness and conviction can be based on his testimony.

57. So, after scanning through the entire record

including the statement of the witnesses, this fact

stands clearly established that deceased Nawab was

stabbed on his neck with a knife and he sustained

injuries and due to these injuries he died.

58. The presence of deceased inside as well as

outside the jhuggi of the appellants is admitted by

appellants themselves. This fact has also been

admitted by the appellants that three-wheeler scooter

was parked outside their jhuggi and deceased

sustained stabbed wound on his neck and was made to

lie on the cot where he died later on.

59. In the light of these facts, incident of stabbing

stands clearly proved and it also stands established

that stabbing took place inside the jhuggi of appellant

Bihari and he died in the jhuggi while lying on the cot.

60. Even otherwise, the stabbing incident has not

been denied by the appellants, since a suggestion was

given to PW 2 Satbir Singh on behalf of the appellants

that deceased was stabbed by someone in Seema Puri.

61. Another suggestion given to PW 2 Satbir Singh

was that, appellant Bihari had gone to see Nawab in

Seema Puri after coming to know that he had been

stabbed and Bihari brought Nawab in injured condition

to his jhuggi from Seema Puri.

62. So, from the statement of the eye-witness as well

as from the statement of appellant Bihari under

Section 313 of the Code, the stabbing of Nawab stands

clearly established. Involvement of appellant Bihari is

also fully there, though he had taken a different stand

in his statement under Section 313 of the Code, as well

as in the defence put to the witness, during the course

of cross-examination.

63. The stabbing incident is also corroborated by

post-mortem report. Ex PW 13/A, according to which

following injuries were found on the body of the

deceased;

1. Bruise around the right eye involving the eyebrows and upper part of the right cheek prominence of an area 5 Cmt.x 4 Cmt.

             2.   Bruise    over    left  cheek
             prominence of area 4 Cmt x3 Cmt.
             3.    Incised    wound      on    mid

submandibular area above the hyoid bone and slightly over right side placed transbersely of size 2 Cmt. X 1 Cmt.

4. Incised wound on left submandibular area and 2 Cmt. Left to the injury no.3 mentioned above of size 1.2 Cmt. x .5 Cm. skin to muscle deep.

5. Incised wound over front of neck over a thyroid cartilage on its upper part of size 8 Cmt. x5 Cmt. x thyroid cartilage out.

6. Incised wound on the left side part of neck below the left end of injury no.5 of size 2 Cmt. x0. 5 Cmt.

7. One incised wound on left side part of neck in 3 Cmt. below the injury no. 5 of size 3 Cmt. x 1.2 Cmt.

8. Incised wound right side upper part of the neck of size 1.5 Cmt. x 0.5 Cmt. This injury was seen right angular of injury no.5.

9. Incised wound on the right side of the neck and 4 Cmt. below the injury no.8 placed obliquiely of size 1.5 Cmt. x 0.5 Cmt.

10. One incised wound on the right side based on front of neck and 2 Cmt. right to the midline placed obliquely of size 1.5 Cmt. x 0.5 Cmt. wherefrom the medial end was seen trial for 3 Cmt.

11. Two small incised wounds were seen, one in the cleft between right thumb and index finger and another in palm at the base of right middle finger of size 1 Cmt. and 0.7 Cmt. respectively.

12. One bruise was seen along with the base right middle ring and finger."

64. PW 13 Dr. L.K. Barua opined that incised wounds

were caused by sharp weapon. Injury no.3, 5, 6, 7 and

9 individually are sufficient to cause death in the

ordinary course of nature. PW 13 has also stated that

after examining the weapon, he was of the opinion that

incised wound on the body of the deceased could be

possible by the knife, Ex P8.

65. PW 15 Subhash S.I. who is I.O. of this case has

stated that he found blood stains on the cot, floor and

the walls of the jhuggi. The fact had been

corroborated by PW 1, Rohtash Singh also, who in his

cross-examination stated that there were some

splashes of blood on the wall of jhuggi.

66. So, this fact proves the version of prosecution,

that the murder of deceased had been committed

inside the jhuggi of appellant Bihari. Had murder of

the deceased been committed at some other place and

deceased had been removed to the jhuggi of the

appellant, as pleaded by the appellant Bihari, then

there was no question that blood stains could be

splashed on the wall of the jhuggi of appellant Bihari.

67. According to PW 2 Satbir, both the appellants

threw the deceased on the cot and appellant Nathi

pinned down the deceased, while appellant Bihari

lifted the knife from inside the jhuggi and stabbed the

deceased on his neck. As per disclosure statement of

appellant Bihari, he got recovered the blood stained

knife Ex P8 and his blood stained pyjama Ex P7, from

the bushes near Delhi Development Authority, Office.

68. This is also evidence on record, that human blood

was detected on Ex P7 and Ex. P8, which is clear from

CFSL reports, Ex PW 15/D and PW 15/E.

69. Though there are certain minor discrepancies in

the statement of the prosecution witnesses but these

shall not prove fatal to the prosecution case. It is well-

settled that a witness who is otherwise wholly truthful

is liable to be scared by the Court atmosphere and get

nervous or may forget the sequence of events. When

the statement of witnesses are recorded in the Court

after a long time, their memory is bound to fall short

and it is but natural, that they will omit certain things

and add certain things. We have to see the testimony

of the witness as a whole as to whether the witness has

withstood the test of cross-examination or not and as

to whether he has narrated the true facts of the

incident.

70. In the present case, there is no reason to

disbelieve the statement of PW 2 Satbir Singh who has

corroborated the prosecution story on all the material

points.

71. As far as the role of appellant Nathi is concerned,

the case of the prosecution is that both the appellants

had thrown the deceased on a cot and appellant Nathi

kept him pinned down, while appellant Bihari lifted the

knife lying in the jhuggi and stabbed in the neck of

Nawab, causing him fatal injuries.

72. This fact has not been challenged in the cross-

examination and presence of appellant Nathi and role

attributed to him in committing the crime appellant,

stands clearly established.

73. In view of the above discussion, we do not find

any infirmity or ambiguity in the impugned judgment

of the trial court and hold that prosecution has fully

proved its case against both the appellants and both

the appellants had been rightly convicted under

Section 302 read with Section 34 of the IPC.

74. Appellant Nathi is already on bail. He is ordered

to be taken into custody to undergo the sentence as

awarded by the learned Additional Sessions Judge.

Period of detention already undergone by appellant

Nathi, shall be set off in terms of Section 428 of Code.

75. As far as the appellant Bihari is concerned, since

he had already been declared as Proclaimed Offender

on 15th February, 1999, so, under these circumstances,

whenever he is arrested, he shall undergo the

remaining sentence of imprisonment.

V.B.GUPTA, J

BADAR DURREZ AHMED, J th 9 April, 2009 rb