Dharampal vs State
2009 Latest Caselaw 3127 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Date of Decision: 12th August, 2009

+                   CRL. APPEAL NO.69/2001

        DHARAMPAL                       ...Appellant
                Through : Ms.Shraddha Bhargava, Advocate

                                   VERSUS

        STATE                               ...Respondent

Through : Mr.Pawan Sharma, Advocate

CRL. APPEAL NO.368/2000

PRAKASH & ORS. ...Appellants Through : Ms.Shraddha Bhargava, Advocate

VERSUS

STATE ...Respondent Through : Mr.Pawan Sharma, Advocate

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR

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

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

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

PRADEEP NANDRAJOG, J.(Oral)

1. Vide impugned judgment and order dated 8.5.2000,

the appellants have been convicted for the offence punishable

under Section 302/34 IPC. The appellants have been

sentenced to undergo imprisonment for life. One co-accused

Mahender (A-6) has been acquitted.

2. The case of the prosecution is based on the

testimony of eye witnesses; namely, Rani PW-6, Shama PW-9

and Rakesh PW-10.

3. Two persons named Shyam Sunder and Ram

Chander, cousin brothers, died on 23.10.1995. Both were

fatally stabbed. Rani PW-9 is the wife of Shyam Sunder.

Shama is the sister of Shyam Sunder. Rakesh is the brother of

Shyam Sunder. We begin by noting the contentions urged by

learned counsel for the appellants for the reason we shall be

noting the evidence relatable thereto. This will enable us to

pen a short decision.

4. The contentions urged by learned counsel for the

appellants are:-

A. The statement of Rani pursuant where to the FIR

has been registered has been recorded after 3 hours of the

incident thereby giving time to think. With reference to the

testimony of PW-14, Insp.Giriraj Singh, it is urged that it is

apparent that the FIR was sent to the Ilaqa Magistrate at 10:00

AM on 24.10.1995. The incident took place at around 10:30

PM, in the preceding night. The delay in sending the FIR to the

Magistrate leads to an inference that in all probability the FIR

was not registered at around 2:00 AM in the night as claimed

by the prosecution, but probably much later and in all

probability the statement of Rani PW-6 was not recorded, as

claimed by the prosecution at around 1:30 AM in the night.

B. The police officers who went to the spot on receipt

of information of the incident did not find either Rani or Rakesh

at the spot nor did they meet them at the hospital. It was only

when they returned for a second time at the spot they met

Rani. This makes doubtful whether Rani or Rakesh were eye

witnesses.

C. In her testimony Rani does not speak about Shama's

presence and thus it is doubtful whether Shama was present

and hence her claim of being an eye witness is false.

D. There are serious contradictions in the testimony of

PW-6, PW-9 and PW-10 in the manner of commission of the

crime and thus neither witness can be believed. The

contradictions pointed out are:

(i) As per PW-9 only two accused Prakash and Sunder

caught Ram Chander but PW-10 states that Dharampal,

Prakash, Sunder and Shri Chand caught hold of Ram Chander.

PW-6 does not attribute the role of catching hold to anyone

pertaining to the assault on Ram Chander.

(ii) As per PW-6, Prakash exhorted. She stated that the

accused caught hold of Shyam Sunder but did not name as to

who were the said accused. Further, PW-6 has not described

the manner in which Ram Chander was assaulted. PW-9 and

PW-10 have attempted to assign specific roles to all the

accused.

E. The ocular version of the assault described by PW-6

who said that Mukesh gave churri blows on the chest and

stomach of Ram Chander is contradicted by the post-mortem

report Ex.PW-12/A of Ram Chander which reveals that there are

no multiple stab wounds on the person of Ram Chander. He

has received only one stab wound on the chest and on the fifth

intercostal space.

F. There are contradictions in the testimony of PW-6

and PW-9 as to who informed the police. Whereas PW-6 claims

that Shama PW-9 informed the police, Shama PW-9 has

deposed that one Shakuntala informed the police.

G. There are contradictions in the testimony of police

officers namely Const.Tek Singh PW-4 as per whom he was on

patrolling duty and when he reached the spot SI Ram Sunder

PW-13 and Insp.Giriraj Singh PW-14 were already present, but

PW-13 has stated to the contrary i.e. that when he and PW-14

reached the spot, PW-4 was already present. Counsel urges

that the prosecution has not proved the daily diary entry

recorded in the police station which led PW-13 and PW-14 to go

to the spot.

H. Counsel urges that there are contradictions qua the

arrest of the accused because as per PW-13 and PW-14, all the

accused except Mukesh were arrested from the hospital, but

PW-6 claims that Prakash was arrested from his house.

I. With reference to the testimony of PW-4 that after

the senior police officers returned from the hospital, they had

with them the relatives of the deceased, who according to

learned counsel were Rakesh and Raju. Counsel submitted

that it has not been explained why the investigating officer did

not record the statement of Rakesh PW-10 at the hospital itself.

J. The learned Trial Judge has given the benefit of

doubt to co-accused Mahender qua whom only PW-9 and PW-

10 gave adverse evidence. Counsel urges that all the accused

are related to each other and so are PW-6, PW-9 and PW-10.

Thus, counsel urges that due to enmity, the witnesses have

deposed falsely.

K. With reference to the testimony of Shama PW-9 that

appellants Dharampal, Shri Chand and the co-accused

Mahender (who has since been acquitted), switched off the

light, counsel urges that it is just not possible that the

witnesses could see the assault. Counsel urges that admittedly

both the deceased were fatally stabbed at around 10:30 in the

night. The place of the attack is outside the jhuggi of the

deceased. The site plan does not show any street light.

5. The case of the prosecution is that the accused had

fatally stabbed Shyam Sunder and Ram Chander outside the

house of Shyam Sunder being Jhuggi No.T-177, Sangam Park

which jhuggi was constructed on an open space next to four

storeyed flat at Sangam Park and the flat adjoining the jhuggi

was the residence of Rakesh PW-10. The stabbing took place

at around 10:30 PM on 23.10.1995. It was Deepawali night.

On receiving information about a stabbing incident at about

11:50 PM, Insp.Giriraj Singh PW-14 accompanied by SI Ram

Sunder reached the spot. Const.Tek Singh PW-4 was at the

police post and on receipt of information of stabbing, in the

company of HC Mahavir Singh even he reached the spot. A

crowd had gathered. There were blood stains on the ground.

The police officers learnt that many persons who were injured

had been removed to hospital. Insp.Giriraj Singh and SI Ram

Sunder proceeded to Hindu Rao Hospital. Const.Tek Chand and

Const.Mahavir stayed back. In the hospital Insp.Giriraj Singh

and SI Ram Sunder learnt that Shyam Sunder and Ram

Chander, both brothers, had died. They learnt that a few other

persons were availing medical aid pertaining to simple injuries

sustained by them. Collecting the MLCs of the deceased, the

two police officers returned to the spot where they met Rani

PW-6, wife of Shyam Sunder whose statement Ex.PW-6/A was

recorded as per which she disclosed how her husband and her

brother-in-law were fatally attacked by the appellants.

Relevant would it be to note that Rani uttered not a word about

the involvement of Mahender who has been acquitted by the

learned Trial Judge. Making an endorsement Ex.PW-14/A under

the statement of Rani and recording dispatch of the tehrir at

1:40 AM, the date being 24.10.1995, the statement of Rani was

forwarded to the police station through Const.Tek Singh for an

FIR to be registered. The FIR was registered somewhere

around 2:00 AM and Const.Tek Singh returned to the spot at

2:15 AM. On learning that the appellants were also at Hindu

Rao Hospital since two of them namely Dharampal and Sunder

were injured and were getting themselves treated, the

investigating officer went to Hindu Rao Hospital and arrested

the accused. They collected the MLC Ex.PW-7/C of Sunder

which evidences a three inch incised wound on his cheek and

the MLC Ex.PW-1/A of Dharampal which evidences a lacerated

wound on the dorsum of left hand and a lacerated wound on

the left thumb. They also collected the MLC Ex.PW-7/D of

Rakesh which records a one inch lacerated wound on the left

side of the forehead. The dead bodies of Shyam Sunder and

Ram Chander were sent to the mortuary and post-mortem

reports Ex.PW-12/A pertaining to Ram Chander and Ex.PW-12/B

pertaining to Shyam Sunder were obtained. Whereas Ram

Chander had received a solitary, but fatal, stab injury on his

chest resulting in his death due to his heart getting pierced,

Shyam Sunder had received two stab wounds and multiple

abrasions on different parts of the body. The stab wounds

were directed towards the chest and had resulted in death due

to excessive internal bleedings since blood arteries were cut.

6. The investigating officer recorded the statement of

Rakesh PW-10 under Section 161 Cr.P.C. in the intervening

night soon after the incident took place as also the statement

of Shama PW-9. Both of them claimed to have witnessed the

assault on Ram Chander; the assault on Shyam Sunder

preceding the assault on Ram Chander as per the first

information report.

7. With reference to the testimony of PW-6, PW-9 and

PW-10, holding their presence at the spot as natural and

further noting that even PW-10 was injured and the same being

an additional reason not to doubt his presence, the learned

Trial Judge has returned a finding of guilt against the appellant

while acquitting Mahender the 6th co-accused. While acquitting

Mahender the learned Trial Judge has given him the benefit for

the reason PW-6 categorically stated that Mahender was not

present when the incident took place and the other two eye

witnesses assigned a different role to him. Whereas PW-10

stated that Mahender caught hold of Ram Chander along with

the other accused PW-9 simply stated that Mahender had

assisted Dharampal and Shri Chand in switching off the light.

But qua the appellants, the learned Trial Judge has held that

their involvement and meeting of the mind was fully

established.

8. In view of the submissions made by learned counsel

for the appellants and as noted in para 4 above, we proceed to

note the testimony of PW-6. She deposed that on Deepawali

day after customary puja she slept inside her room and her

husband was lying on a cot outside the house. A curtain was

hanging on the door of the room. Her house is a jhuggi,

opposite to which is the jhuggi of accused Prakash. Accused

Dharampal, the younger brother of accused Prakash was

present and asked her husband as to why a parda (curtain) was

hung. He quizzed whether her husband was hiding a queen

inside. This led to exchange of hot words between her

husband and Dharampal. Accused Shri Chand, Prakash, Mukesh

and Sunder joined from the side of Dharampal. The verbal duel

turned into grappling. Neighbours intervened and separated

her husband from said five accused. The matter rested. After

about 10 minutes accused Prakash, Sunder, Dharampal, Shri

Chand and Mukesh launched an assault on her husband. The

rekindling was at the behest of Mukesh who was not present

when the altercation had taken place about 10 minutes back.

When Mukesh came, his father, Prakash, told him that her

husband had troubled him and that her husband should be

finished. Prakash gave an exhortation: 'iska kaam tamam kar

do'. At that, Shri Chand, Dharampal and Sunder caught her

husband and Mukesh inflicted churri blows on the chest and

stomach of her husband who fell down. People from the

locality including her brother-in-law Ram Chander reached.

Accused Prakash said that even Ram Chander should not be

spared. Accused Mukesh inflicted churri blows in the chest and

stomach of Ram Chander who fell down. When Prakash said

that even Ram Chander should be done away with, the accused

had caught Ram Chander.

9. We may note that Rani was declared hostile by the

public prosecutor since she did not name Mahender as an

accused and deposed nothing about him. She denied having

told the police that even Mahender had caught hold of her

husband and her brother-in-law.

10. On being cross examined by counsel for the accused

she admitted that there was no public light in the street but

volunteered that there was electric bulb at the house of

accused Prakash which was opposite her house and the

distance between the two houses was 5/6 paces. She denied

that there was darkness. She stated that her statement was

recorded by the police before going to hospital. She stated

that her sister-in-law Shama informed the police. She admitted

that accused Prakash was arrested at his house.

11. Shama PW-9 deposed that she was the sister of the

deceased and on Deepawali day had gone to the house of

Shyam Sunder at 10:00 PM in the night where her brother

Shyam Sunder had a quarrel with the accused (including

Mahender). Neighbours intervened and pacified the accused.

The matter was settled. She went upstairs to the house of her

mother and after 10/15 minutes heard the cries of Rani PW-6.

She saw from upstairs and found her brother Shyam Sunder

lying on the ground. She came down and saw the accused

persons engaged (chipke hue thae) with her brother Ram

Chander. Mukesh had a knife in his hand and before she and

other people could rescue Ram Chander, Mukesh stabbed Ram

Chander. Prakash and Sunder were holding her brother Shyam

Sunder when he was attacked. Her brother Rakesh sustained

injuries in his head when he tried to apprehend the accused

who fled after attacking her brothers. In cross examination she

stated that Mahender was seen by her simply standing when

her brothers were assaulted.

12. Rakesh PW-10 deposed that on Deepawali night i.e.

the intervening night of 23rd and 24th October 1995 at about

10:00 PM he was upstairs in his DDA Flat which was adjoining

Jhuggi No.T-177, Sangam Park. His family was busy with

Deepawali puja. He heard cries of Rani PW-6 who was the wife

of his brother Shyam Sunder who lived in Jhuggi No.T-177,

Sangam Park. On hearing the cries he came down and saw his

brother Shyam Sunder lying in a pool of blood. Mukesh was

standing with a knife and the other accused (including

Mahender) were holding Ram Chander, his cousin. Mukesh

gave a knife blow on the chest of Ram Chander. When he tried

to apprehend Mukesh, he i.e. Mukesh inflicted a blow on his

head from the handle of the knife. All accused ran away. He

and Raju removed Shyam Sunder to Hindu Rao Hospital where

both were declared dead.

13. From the testimony of PW-6 and the testimony of

PW-9 it is apparent that two incidents took place with a time

interval of 10 minutes at 10:00 PM. PW-6 and PW-9 have

witnessed the same. We can call it stage 1 of the incident. At

stage 1 of the incident, as deposed to by PW-6 and PW-9 an

altercation took place between Shyam Sunder and Dharampal

when Dharampal posed a taunting question to Shyam Sunder

resulting in a verbal duel between the two and at that point of

time save and except co-accused Mukesh, all other appellants

were present and joined. The matter was got pacified with the

intervention of neighbours. PW-10 has not claimed to be a

witness to this incident i.e. stage 1. Stage 2 of the incident

commenced when Mukesh came to the spot after about 10

minutes. What happened thereafter can again be split into two

parts. We can call it part A and part B of stage 2. Part A of

stage 2 is the narration of events by PW-6 of Prakash exhorting

to Mukesh i.e. his son and other accused that Shyam Sunder

should be finished and Shri Chand, Dharampal and Sunder

catching hold of Shyam Sunder and Mukesh stabbing him. Part

A of stage 2 has not been seen by PW-9 and PW-10 who saw

part B of stage 2 of the incident when cries of PW-6 attracted

them. They saw the assault of Ram Chander who also got

attracted to the spot on hearing the cries of PW-6. The poor

fellow intervened to save his cousin Shyam Sunder. The

accused stabbed him.

14. The socio-economic background, PW-6, PW-9 and

PW-10 who are slum dwellers cannot be lost sight of. Their

memory, the language at their command, their communication

skills and their confidence levels have to be considered with

reference to said background. It has also to be kept in mind

that the incident relates to the night of 23 rd and 24th October

1995. Rani PW-6 deposed in Court on 18.11.1997. Shama

deposed in Court on 19th and 20th January 1998. Rakesh

deposed in Court on 20th and 21st January 1998. The three

witnesses narrated events seen two years prior when they

narrated the facts in Court as the witnesses of the prosecution.

15. Indeed, appreciation of ocular evidence is a

Herculean task and there can be no fixed or strait-jacket

formula for appreciation of ocular evidence. In a recent

decision pronounced by a Division Bench of this Court, of which

Bench, one of us; namely Pradeep Nandrajog, J. was a Member

of; being the decision dated 29.5.2009 in Crl.A.No.327/2007

Akbar & Anr. Vs. State 13 principles evolved regarding

appreciation of ocular evidence in a criminal trial were

extracted with reference to the decisions of the Supreme Court

reported as Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat

AIR 1983 SC 753, Leela Ram Vs. State of Haryana AIR 1997 SC

3717 and Tahsildar Singh Vs. State of UP AIR 1959 SC 1012.

The same are as under:-

I While appreciating the evidence of a witness, the

approach must be whether the evidence of the witness read as

a whole appears to have a ring of truth. Once that impression

is formed, it is undoubtedly necessary for the Court to

scrutinize the evidence more particularly keeping in view the

deficiencies, drawbacks and infirmities pointed out in the

evidence as a whole and evaluate them to find out whether it

is against the general tenor of the evidence given by the

witness and whether the earlier evaluation of the evidence is

shaken as to render it unworthy of belief.

II If the Court before whom the witness gives evidence had

the opportunity to form the opinion about the general tenor of

evidence given by the witness, the appellate court which had

not this benefit will have to attach due weight to the

appreciation of evidence by the trial Court and unless there

are reasons weighty and formidable it would not be proper to

reject the evidence on the ground of minor variations or

infirmities in the matter of trivial details.

III When eye-witness is examined at length it is quite

possible for him to make some discrepancies. But courts

should bear in mind that it is only when discrepancies in the

evidence of a witness are so incompatible with the credibility

of his version that the Court is justified in jettisoning his

evidence.

IV Minor discrepancies on trivial matters not touching the

core of the case, hyper technical approach by taking sentences

torn out of context here or there from the evidence, attaching

importance to some technical error committed by the

investigating officer not going to the root of the matter would

not ordinarily permit rejection of the evidence as a whole.

V Too serious a view to be adopted on mere variations

falling in the narration of an incident (either as between the

evidence of two witnesses or as between two statements of

the same witness) is an unrealistic approach for judicial

scrutiny.

VI By and large a witness cannot be expected to possess a

photographic memory and to recall the details of an incident. It

is not as if a video tape is replayed on the mental screen.

VII Ordinarily it so happens that a witness is overtaken by

events. The witness could not have anticipated the occurrence

which so often has an element of surprise. The mental faculties

therefore cannot be expected to be attuned to absorb the

details.

VIII The powers of observation differ from person to person.

What one may notice, another may not. An object or movement

might emboss its image on one person's mind whereas it might

go unnoticed on the part of another.

IX By and large people cannot accurately recall a

conversation and reproduce the very words used by them or

heard by them. They can only recall the main purport of the

conversation. It is unrealistic to expect a witness to be a human

tape recorder.

X In regard to exact time of an incident, or the time

duration of an occurrence, usually, people make their

estimates by guess work on the spur of the moment at the time

of interrogation. And one cannot expect people to make very

precise or reliable estimates in such matters. Again, it depends

on the time-sense of individuals which varies from person to

person.

XI Ordinarily a witness cannot be expected to recall

accurately the sequence of events which take place in rapid

succession or in a short time span. A witness is liable to get

confused, or mixed up when interrogated later on.

XII A witness, though wholly truthful, is liable to be

overawed by the court atmosphere and the piercing cross

examination by counsel and out of nervousness mix up facts,

get confused regarding sequence of events, or fill up details

from imagination on the spur of the moment. The sub-

conscious mind of the witness sometimes so operates on

account of the fear of looking foolish or being disbelieved

though the witness is giving a truthful and honest account of

the occurrence witnessed by him.

XIII A former statement though seemingly inconsistent with

the evidence need not necessarily be sufficient to amount to

contradiction. Unless the former statement has the potency to

discredit the later statement, even if the later statement is at

variance with the former to some extent it would not be helpful

to contradict that witness.

16. We need not note and make a list of various judicial

pronouncements wherein it has been held that in India, for

unexplainable reasons, witnesses just cannot withhold giving

embroidery to a story however true in its essence. One hardly

comes across a witness who does not make exaggerations or

embellishments in his testimony. The duty of the Court is to

separate the truth from falsehood. The latest decision on the

point is reported as Manni @ Udattu Mann Vs. State JT 2009 (4)

SC 169.

17. It has to be noted at the outset that neither PW-6

nor PW-9 have been questioned on the aspect of their

testimony pertaining to stage 1 of the incident. Thus, their

version qua stage 1 of the incident has gone unchallenged.

The effect thereof is that the appellants had accepted their

version that 10 minutes prior to the actual stabbing,

Dharampal, brother of Prakash had an altercation with Shyam

Sunder and there was exchange of hot words between the two.

Prakash, Shri Chand and Sunder also joined by taking side of

Dharampal. The verbal altercation resulted in pushing.

Tempers were cooled due to intervention of neighbours. It is

apparent that 10 minutes prior to the actual stabbing incident

the situation at the ground level was fairly hot. This evidence

brought on record through the testimony of PW-6 and PW-9

shows the presence of all the appellants save and except

Mukesh at the spot at stage 1.

18. It is apparent that the appellants were nursing a

grievance against deceased Shyam Sunder. Stage 2 of the

incident commenced, as deposed to by PW-6, when Mukesh

came to the spot and his father Prakash told him that Shyam

Sunder had troubled them. Prakash exhorted: 'iska kaam

tamam kar do'. It was followed by the other accused catching

Shyam Sunder and Mukesh stabbing him. This part of stage 2

of the incident was witnessed only by PW-6. Interestingly, we

may note, that while cross examining PW-6 a suggestion has

been given to her (probably to explain the injury suffered by

Dharampal) that Dharampal sustained the injury when he

intervened to rescue Shyam Sunder. Now, this lets the cat out

of the bag. Dharampal admits his presence but wants to be

called a savior. Stage 1 of the incident now assumes

importance. Why should Dharampal who had quarreled with

the deceased and had grappled with him 10 minutes earlier

become his savior? The answer defies any logical reasoning.

19. That Dharampal and Sunder have received injuries

which are minor lend assurance to the testimony of PW-6 and

PW-9 that some grappling had taken place at stage 1 of the

incident. Rakesh PW-10 being a witness to part B of stage 2 of

the incident is corroborated by the MLC Ex.PW-7/D of Rakesh

which corroborates his testimony that Mukesh hit him on his

forehead with the handle of the knife when he tried to

apprehend Mukesh.

20. The variations in the testimonies of PW-6, PW-9 and

PW-10 pertaining to the events which span part B of stage 2 of

the incident which have been brought to our notice and as

recorded in sub-para D and F of Para 4 above are not of a

material nature and cannot be classified as contradictions.

These are minor variations which are bound to occur when 3

people speak of the same incident involving five accused.

What is relevant is that the core facts i.e. Mukesh being armed

with a knife and assaulting and the other accused facilitating

the assault have been spoken of with the same signature tune

by the three witnesses. Contention noted in sub-para C of Para

4 is too trivial a fact to discredit the presence of Shama. After

all, Rani's husband was fatally stabbed and she was bound to

be in a terrified and shocked state of mind and hence may not

have noticed Shama's presence at the spot at stage 2 (part B)

of the incident.

21. Contention noted in sub-para E of Para 4 is again

irrelevant and immaterial. PW-6 hardly understands the

difference between singular and plural. The embellishment

that two blows were inflicted on the person of Ram Chander,

the fact being that only one was inflicted, is not of a kind which

can discredit her testimony. We re-emphasize that by the time

Ram Chander was attacked, husband of PW-6 had been fatally

attacked and her mental condition has to be kept in view. Her

being terrified and in a state of shock and hence her memory

failing her or her power of retention being lost at the very

moment cannot be ruled out. On this reasoning the variation in

the claim of PW-6 and PW-9 as to who informed the police is

also explainable. This takes care of submission noted in sub-

para F of Para 4 above.

22. It is no doubt true that the FIR has been delivered to

the Ilaqa Magistrate at 10:00 AM on 24.10.1995 and not

promptly as required by law. But, we find that the police

officers who have deposed to the registration of the FIR and it

being delivered to the Ilaqa Magistrate have not been

questioned as to why the delay took place. It is settled law

that unless a person is given a chance to explain a lapse, the

same cannot be held against him. Further, a lapse by the

police cannot discredit a case, if otherwise established by good

evidence. In the instant case, a possible reason for belated

transmission of the FIR to the Ilaqa Magistrate is the fact that

the night in question was Deepawali night and the entire police

force in Delhi was patrolling on the streets being on emergency

duty. Lack of manpower could be a reason.

23. That the police officers who went to the spot did not

find any eye witness nor did they find any eye witness at the

hospital does not mean that Rani and/or Shama and/or Rakesh

were not eye witnesses. Admittedly, two of the appellants

apart from Rakesh had received injuries albeit minor ones.

Two persons had died. The scene was fairly chaotic. Natural

conduct of the family members was to rush to the hospital. On

finding one to many relatives in the hospital, some returned. In

the meanwhile the police reaching the spot and proceeding to

the hospital i.e. the police and the relatives crossing each other

cannot be ruled out. Be that as it may, PW-6 and PW-9 have

not been cross examined with reference to their deposition

pertaining to stage 1 of the incident and thus the defence

admitting the correctness thereof, requiring an inference to be

drawn that the defence admitted the presence of the said two

witnesses at the spot.

24. Contradictions in the testimony of PW-4, PW-13 and

PW-14 as to which police officer reached the spot first is neither

here nor there. It is too minor a fact to be remembered by a

police officer as to in which sequence they arrived at the spot.

25. Merely because PW-6 made an embellishment that

Prakash was arrested from his house; the fact being that he

was not arrested from his house, is again an embellishment of

a minor nature in the testimony of PW-6.

26. The plea that since Mahender was acquitted there

was no reason not to extend the same benefit to the other

accused except Mukesh has to be rejected for the reason the

rule of prudence applicable to one accused may not be holding

good for the others. The rule of prudence to which we have

referred to is the rule adopted by Courts that if qua anyone

accused, on account of variation in the evidence qua his

involvement, a doubt arises in the judicial mind, prudence

requires to extend the benefit of doubt to said accused. The

learned Trial Judge has given good reasons to give the benefit

of doubt to Mahender qua whom PW-6 spoke not a word and

PW-9 ascribed the role (during cross examination) of standing

at the spot.

27. The last submission with reference to the testimony

of Shama PW-9 wherein Shama said that Mahender switched

off the light of her house and hence it was obvious that nobody

could have seen the assailants requires to be rejected for the

reason both PW-6 and PW-9 have categorically spoken about a

bulb being lit in the house of accused Prakash which was

opposite to the house of deceased Shyam Sunder and the

distance between the two houses was 5/6 paces. Besides, it

has come in evidence that it was Deepawali night and we can

take judicial notice of the fact that the inhabitants of the colony

had lit diyas, candles or had put strings of bulbs to attract

Goddess Laxmi to their house i.e. there was sufficient light to

see the faces of the assailants. That the accused are the

neighbours of the victims has also to be kept in mind for the

reason a known person can be recognized by an acquaintance

even in dim light.

28. We find no merits in the appeals.

29. The appeals are dismissed. The accused are on bail.

Their bail bonds and surety bands are cancelled.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE August 12, 2009 mm