Vankat Salum And Another vs State (Delhi Admn.)
2009 Latest Caselaw 1398 Del

           THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment delivered on: 15.04.2009
+      CRL. A. 180/1994
VANKAT SALUM AND ANOTHER                              ... Appellants


                                 - versus -
STATE (DELHI ADMN.)                                   ... Respondent

Advocates who appeared in this case:

For the Appellants : Mr Sheikh Israr Ahmed For the Respondent : Mr Sunil Sharma

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE P.K. BHASIN

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

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

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

BADAR DURREZ AHMED, J (ORAL)

1. Initially, there were two appellants in this appeal which is

directed against the judgment dated 30.07.1994 delivered in Sessions

Case No.7/1992 by the learned Additional Sessions Judge as also

against the order on sentence dated 06.08.1994. The initial appellants

were convicted under Sections 302/34 of the Indian Penal Code

(hereinafter referred to as 'IPC'). By the said order of sentence, they

were sentenced to life imprisonment and fine of Rs 1,000/- each.

During the pendency of the appeal, the second appellant (C.K.

Manikum) passed away on 04.05.1997 and consequently the appeal

insofar as he is concerned stands abated. This is so recorded in the

order dated 21.11.2008.

2. The prosecution case is that on 09.08.1991, a fight is alleged to

have taken place in the night intervening the 9th and 10th August, 1991

between the surviving appellant Vankat Salum and C.K. Manikum and

one Maniappam. In that tussle, it is alleged that stones were thrown

and incidentally the door of the deceased Rama Swami who lives

nearby was broken. It is further the case of the prosecution that the

next day the deceased had a conversation with Vankat Salum and C.K.

Manikum and told them to repair the door. In the evening at about 8.00

or 8.15 p.m. on that day, i.e., 10.08.1991, Vankat Salum and C.K.

Manikum are alleged to have come to the residence of the deceased

Rama Swami and it is alleged that they started abusing him. The

quarrel between them was put to an end at the intervention of Rama

Swami's son-in-law (K. Ramu) and his daughter Laxmi. It is the case

of the prosecution that after some time Rama Swami was ready to retire

for the night. Rama Swami used to sleep at the E-Block Market.

While he was going towards E-Block Market, Vankat Salum pushed

Rama Swami from behind as a result of which he fell down and when

he tried to get up Vankat Salum caught hold of Rama Swami's hair and

struck his head twice against the surface of the street. Thereafter, C.K.

Manikum is said to have picked up a big stone lying nearby and hit the

same on the chest of the deceased Rama Swami who was lying on the

street. The said stone is alleged to have been hit twice on the chest and

the deceased Rama Swami apparently died on the spot. Thereafter,

Vankat Salum and C.K. Manikum are alleged to have run away from

the spot.

3. The learned counsel appearing on behalf of the appellant Vankat

Salum submitted that the trial court has convicted the said appellant

only on the basis of part of the testimony of PW-1 (Smt. Laxmi) who is

the daughter of the deceased Rama Swami. He submitted that the other

alleged eye witness, i.e., PW-5 (K. Ramu), who is the son-in-law of the

deceased Rama Swami, has turned hostile. Insofar as PW-1 (Smt.

Laxmi) is concerned, she has supported the case in her examination-in-

chief which was conducted on 04.06.1992, but she completely changed

her stance in her cross-examination which was conducted after a gap of

eight months on 09.02.1993. The learned counsel submitted that the

only reason why the trial court convicted the appellant was because the

trial court was of the opinion that the said witness PW-1 (Smt. Laxmi)

had been won over by the accused. Before the trial court, the learned

Additional Public Prosecutor had contended that after the examination-

in-chief of PW-1 (Smt. Laxmi) had been conducted, the accused

persons had intentionally tried to defer the cross-examination in order

to win her over. Several adjournments were taken by them by moving

applications and they were ultimately ready for cross-examination only

when they had succeeded in their plan to win over the said eye-witness.

It was contended that the testimony of PW-1 (Smt. Laxmi) in her

examination-in-chief, in these circumstances, would have to be

believed if it was corroborated to some extent. A reference was made

to the Supreme Court decision in the case of Khujji @ Surendra Tiwari

v. State of Madhya Pradesh: 1991 (3) SCC 627. Relying upon the

said authority, the learned Additional Public Prosecutor had contended

before the trial court that in the case before the Supreme Court, there

was only an interval of one month, whereas in the present case, there

was a much larger interval. It is because of this interval that an

opportunity had been given to the accused to win over PW-1 (Smt.

Laxmi) when she was cross-examined on 09.02.1993. This contention

of the learned Additional Public Prosecutor found favour with the trial

court which was of the opinion that there was sufficient time with the

accused persons to win over the said witness as also her husband PW-5

(K. Ramu) and to terrorise them. Of course, there is no evidence on

record that the witnesses had actually been won over or terrorized by

the accused. Because of the view taken by the trial court, the appellant

alongwith C.K. Manikum was convicted on the basis of the testimony

of PW-1 (Smt. Laxmi) as deposed before court in her examination-in-

chief.

4. Of course, the trial court also sought corroboration from the

medical evidence as given by PW-6 (Dr L.T. Ramani) who conducted

the post mortem on the dead body of the deceased Rama Swami. The

injuries found on the deceased Rama Swami were co-related with the

testimony of PW-1 (Smt. Laxmi) and, therefore, the court concluded

that there was sufficient corroboration and convicted the appellant and

C.K. Manikum under Sections 302/34 IPC for the murder of the

deceased Rama Swami.

5. The learned counsel for the appellant submitted that a bare look

at the rough sketch Exhibit PW-9/B would show that PW-1 (Smt.

Laxmi) was not an eye witness to the incident at all. PW-1 (Smt.

Laxmi) has stated that the incident took place in the street. She stated

in her examination-in-chief that at about 8.00 or 8.15 p.m. when her

father, the deceased Rama Swami, was going out with his bedding for

sleeping, she was also present there. When her father came out of the

house, both the accused were present outside and they started abusing

him. She stated that her husband also came there on hearing this and

persuaded her father to come into the house. Her father was calmed

down by her husband PW-5 (K. Ramu) whereafter he left. After some

time, her father again came out with his bedding for going to sleep near

the E-Block Market and she accompanied him. She has further stated

that when he had just gone out of the house and taken a step or two,

Vankat Salum had pushed her father from behind as a result of which

he fell down. When her father tried to get up, Vankat Salum caught

hold of her father by his hair and struck his head twice against the

pucca street. In the meantime, C.K. Manikum picked up a big stone

and hit it on the chest of his father who was lying on the street. The

stone was hit twice. It is further stated that the houses of Vankat Salum

and C.K. Manikum are opposite her father's house and that they had

collected several big stones in front of their houses. In the meanwhile,

her husband PW-5 (K. Ramu) had also come there and several other

persons had collected. She stated that her father remained lying on the

ground and could not get up. The people who had gathered tried to

catch hold of Vankat Salum and C.K. Manikum but they pelted stones

on them too.

6. In her cross-examination, which was conducted eight months

later, the said witness stated that she came to know about the incident,

i.e., the death of her father only after coming to her house. She also

stated that she and her husband had not witnessed the occurrence.

7. The learned counsel for the appellant Vankat Salum submitted

that from the narration of events as per the examination-in-chief of PW-

1 (Smt. Laxmi), the entire incident took place on the street. Yet, the

rough sketch Exhibit PW-9/B and the scaled site plan Exhibit PW-12/A

both indicate the presence of blood stains in the houses bearing No.497

and 498 of E-Block of J.J. Colony, Shakarpur. The prosecution has not

brought forth any evidence to explain as to how the blood stains were

found inside the said houses, whereas the entire incident allegedly

occurred on the street. The learned counsel has also drawn our

attention to D.D. entry No. 25/A dated 10.08.1991 at Police Station

Saraswati Vihar. The D.D. entry is of 08.55 p.m. and it indicates that

Vankat Salum had gone to the said police station alongwith C.K.

Manikum who had been injured and was in an unconscious state.

Apparently, an incident had taken place as a result of which C.K.

Manikum had received injuries on his head. Thereafter, of course, C.K.

Manikum had been taken to hospital, but no statement was recorded

although he was declared fit for statement as per the MLC (Exhibit

PW-14/B).

8. The learned counsel, therefore, summed up his arguments by

stating that while in law there is no impediment upon the courts on

convicting persons on the testimony of a sole eye witness and, if it were

granted that PW-1 (Smt. Laxmi) had been won over, the court could

convict on the basis of the testimony which formed part of the

examination-in-chief. But, such testimony must be without any doubt

and must be of stellar quality. He submitted that because of the fact

that there were blood stains in the houses 497 and 498 of E-Block and

the fact that the said houses were of the accused persons and that C.K.

Manikum was so badly injured that he was brought to the police station

in an unconscious state, serious doubts arise with regard to the

truthfulness of the testimony of PW-1 (Smt. Laxmi). It may also be

noted that in the MLC (Exhibit PW-14/B), even surgery was

recommended insofar as C.K. Manikum was concerned. These are

circumstances which are sufficient to create doubt as to the veracity of

the examination-in-chief of PW-1 (Smt. Laxmi).

9. Mr Sunil Sharma, the learned counsel appearing on behalf of the

State, placed reliance on the decision of the Supreme Court in the case

of Khujji @ Surendra Tiwari (supra) as also on the decision of Radha

Mohan Singh @ Lal Saheb and Others v. State of U.P.: JT 2006 (1)

SC 428. Mr Sharma referred to page 433 of the said report and

submitted that there was a similar situation which arose with regard to

PW-3 (Mohan Yadav) in that case who had fully supported the

prosecution case in his examination-in-chief. In part of his cross-

examination, which was recorded on the same day, the said witness

gave the details of the weapons being carried by each of the accused

and also the specific role played by them in assaulting the deceased and

other injured persons. However, his cross-examination could not be

completed and it was resumed on the next day. On that occasion, he

made a complete volte face and gave a statement that he could not see

the incident on account of darkness. In this background, the Supreme

Court was of the view that the statement of witness as recorded on the

first day, including the cross-examination of that day, was truthful and

reliable. The Supreme Court noted that it is a well-settled principle that

the evidence of a prosecution witness cannot be rejected in toto merely

because the prosecution chose to treat a particular witness as hostile

and cross-examined him. The evidence of such a witness could not be

treated as effaced or washed off the record altogether, but the same

could be accepted to the extent his version is found to be dependable on

a careful scrutiny thereof. The Supreme Court, therefore, placed

reliance on the testimony of PW-3 (Mohan Yadav) in that case insofar

as his examination-in-chief and cross-examination of the first day were

concerned and discarded the second day's testimony.

10. Consequently, Mr Sharma submitted that there was nothing

wrong with the decision of the trial court in convicting the appellant on

the basis of the examination-in-chief of PW-1 (Smt. Laxmi) which also

found corroboration with the nature of the injuries found on the body of

the deceased as deposed by PW-6 (Dr L.T. Ramani). He, therefore,

submitted that the judgment and order on sentence be upheld.

11. We have considered the arguments advanced by the counsel for

the parties. Initially, we were inclined to accept the arguments

submitted by the learned counsel for the State. This is so because there

is no impediment on the court on basing the conviction on that part of

the testimony which the court finds to be truthful and beyond doubt. In

the first place, it appeared that PW-1 (Smt. Laxmi) spoke the truth

when she deposed in her examination-in-chief. There also appeared to

be some merit in the trial court's finding that there was an interval of

eight months between her examination-in-chief and cross-examination

and, therefore, there was a possibility of the said witness having been

won over. Of course, we do not agree with the finding of the trial court

that the witness had, in fact, been terrorized. There is no evidence of

this.

12. However, when we examine the case in greater detail, we find

that there are a few facts which have gone unexplained on the part of

the prosecution. The first circumstance is the factum of blood stains in

house Nos. 497 and 498 both of which belong to the accused persons.

The second circumstance is the factum of D.D. No.25/A which shows

that C.K. Manikum had been taken to the police station by the appellant

Vankat Salum around 8.55 p.m. on the date of the incident itself.

According to the prosecution, the death of Rama Swami took place

around 8.15 p.m. It does appear to be extremely doubtful that the

appellant, after having committed the murder of the victim Rama

Swami in the manner suggested by the prosecution, would have gone to

the police station and taken co-accused C.K. Manikum there.

Moreover, C.K. Manikum was also injured and injured to such an

extent that he was unconscious. Thereafter, he was taken to hospital

and, as his MLC records, although he was fit for making a statement,

apparently no statement of his was recorded by the police and, even if

such a statement had been recorded, the same has not been produced

before court. The fact that there were blood stains in the said houses

belonging to the accused and that the accused were injured on

10.08.1991 itself, it appears that the incident was somewhat different

than what PW-1 (Smt. Laxmi) has stated in her examination-in-chief.

The testimony of PW-1 (Smt. Laxmi) does not in any manner indicate

that the accused suffered any injury in her presence. Whereas, it is a

fact that they did. So much so that C.K. Manikum became

unconscious. So, the incident as narrated by PW-1 (Smt. Laxmi) is

quite different from what appears from a piecing together of

circumstances.

13. Taking into account these circumstances, we feel that the

statement of PW-1 (Smt. Laxmi) in her examination-in-chief is not free

from doubt and, therefore, we are inclined to give the benefit of doubt

to the appellant. Consequently, the impugned judgment and order on

sentence are set aside. The bail bond of the appellant Vankat Salum is

cancelled and the surety stands discharged. The appeal is allowed and

stands disposed of.

BADAR DURREZ AHMED, J

P.K. BHASIN, J April 15, 2009 dutt