Mahender & Anr vs State
2009 Latest Caselaw 511 Del

            THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment delivered on: 12.02.2009

+ CRL APPEAL No. 25/1993


MAHENDER & ANR                                                 ... Appellant

                                    - versus -

STATE                                                          ... Respondent

Advocates who appeared in this case:

For the Appellants : Mr K. K. Sud, Sr advocate with Mr Alok Rai For the Respondent/State : Mr M.N. Dudeja, APP

CORAM:-

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

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

1. This appeal was initially filed on behalf of Mahender (appellant No.1) and Satish @ Chuha (appellant No.2). During the pendency of the appeal, Mahender (appellant No.1) passed away and the factum of his death was recorded in the order dated 01.12.2005. As such, insofar as appellant No.1 is concerned, on account of his death, his appeal has abated. The appeal continues in respect of Satish (appellant No.2).

2. Initially there were three accused, namely, Mahender, Anand, who is the son of Mahender and Satish. Anand, being a juvenile, was tried separately and counsel for the parties informed us

that he was acquitted. Mahender and Satish were, however, convicted by the learned Additional Sessions Judge by his judgment dated 30.01.1993. They were convicted under Section 452/34 and Section 302/34 of the Indian Penal Code, 1860 (hereinafter referred to as ‗the IPC'). By a separate order on sentence dated 30.01.1993 both Mahender and Satish were sentenced to two years rigorous imprisonment with fine of Rs 500/- each under Section 452/34 IPC. They were also sentenced to rigorous imprisonment for life and a fine of Rs, 1,000/- each was also imposed on them under Section 302/34 IPC. In default of their paying the fine imposed under Section 452/34 IPC, they were required to undergo simple imprisonment for four months and in default of payment of fine under Section 302/34 IPC, they were required to further undergo simple imprisonment for two years. The sentences were directed to run concurrently.

3. The case for the prosecution is based on the statement Exhibit PW2/A given by PW2 Girish, son of Makhan Lal before SI J. K. Sharma on 26.10.1991. In this statement the said PW2 stated that he resided at Jhuggi No. 71/A/448, Old Chandrawal, Majnu Ka Tila, Delhi and that he was working in Tirath Ram Hospital as a sweeper. On 26.10.1991 at about 11:15 am when he returned to his house after getting his mother Smt. Lakshmi examined at the Tirath Ram Hospital, his neighbour Mahender, son of Rumal, who had a grudge against him, on seeing him started abusing him and told him that ―you consider yourself to be a big leader, you will have to be taught a lesson‖ (.... tu bada neta banta hai, tujhe sabak sikhana parega). On saying this, Mahender started slapping him (PW2 Girish) and also gave him fist blows. Thereafter, Girish raising an alarm by shouting bachao-bachao, entered his house. Mahender, his son Anand and nephew Satish @ Chuha also followed him and entered his house and they broke down the wall and roof (chhappar) of his jhuggi. He came out of his jhuggi

escaping them. In the meantime, Prem, son of Sattu, resident of Old Chandrawal, who was his maternal uncle, arrived there and intervened. On seeing him, Mahender challenged and said that first of all they should deal with the maternal uncle. On hearing this, Satish @ Chuha, son of Rajbir, resident of Jahangir Puri, caught hold of Prem and Mahender gave a blow on his head with a heavy Keekar log. Mahender's son Anand, also gave danda blows to Prem while he was falling down. It is further stated in Exhibit PW2/A that in the meanwhile two police constables, while on patrol duty, reached there, who, with the help of people present, overpowered Mahender along with the stick/ log at the spot itself. The other two accused persons succeeded in running away from the spot. It is further stated that he (PW2 Girish) and Constable Shree Gopal, No. 1805/N took Prem to Hindu Rao Hospital. There, the doctor declared Prem dead. It is further mentioned in Exhibit PW2/A that besides him (PW2 Girish) the incident had been witnessed by Mukesh, son of Sharan and Bal Kishan, son of Prem and other neighbours. It is further stated that Mahender, his son Anand and nephew Satish @ Chuha have killed his maternal uncle intentionally and in furtherance of their common intention and police action be taken against them. The said statement has been signed by PW2 Girish.

4. PW13, Head Constable Satbir Singh stated that this statement formed the ruqqa, which was sent from Hindu Rao Hospital at about 1:30 pm through Constable Surender Singh by SI J. K. Sharma as stated by PW14 Inspector Ram Singh, the Investigating Officer of this case. PW13, HC Satbir Singh further stated that at about 2 pm Constable Surender had brought the ruqqa Exhibit PW2/A and on the basis of the said ruqqa he wrote the FIR of this case. Carbon copy of the FIR is Exhibit PW13/A.

5. After completion of investigation and on presentation of the charge-sheet, the learned Additional Sessions Judge framed charges against the accused Mahender and Satish @ Chuha under Sections 452/34 and 302/34 IPC by his order dated 04.03.1992. The charge against them was that in furtherance of their common intention they entered into the jhuggi of Girish with intention to cause injury to Prem and Girish and thereby committed an offence under Section 452/34. They were also charged for having committed an offence under Section 302/34 for committing the murder of Prem in furtherance of their common intention to do so by giving him a blow with a lathi/ danda on his head. The prosecution examined as many as 17 prosecution witnesses in an attempt to bring home the case against the accused. As noted above, the learned Additional Sessions Judge, after examining the evidence on record and hearing the counsel for the parties, came to the conclusion that a case for conviction of the accused, as charged, was made out.

6. Before us, the learned counsel for the surviving appellant No. 2 (Satish) submitted that the trial court judgment warranted interference and the same required to be set aside because according to the learned counsel the trial court failed to examine and appreciate the serious contradictions in the ocular and medical evidence. It was contended that there were also contradictions with regard to the place of occurrence. The learned counsel submitted that the presence of Satish at the place of occurrence was not free from doubt. He also submitted that the four alleged eye witnesses were closely related to the deceased Prem and that they were interested witnesses. He also contended that their testimonies were full of contradictions and embellishments and were, therefore, not worthy of any credence. A contention was also made with regard to the delay in recording of the

FIR particularly when two police officials, who were on patrol duty, had allegedly reached the scene of crime immediately. The learned counsel for the State supported the judgment of the trial court and submitted that the conviction and sentence ought to be sustained by this Court in appeal. It was submitted by the learned counsel for the State that there is no doubt that Prem's death did take place and according to him the place of occurrence is also not disputed. He submitted that PW2 Girish had clearly stated that Prem had been caught hold by Satish and hit on the head by a Keekar log by Mahender. PW11 Dr L. K. Barua, who conducted the post mortem examination, also noted injury No. 1 as being an injury on the head of the deceased Prem which was opined as sufficient to have caused his death. Therefore, according to Mr Dudeja, the learned counsel who appeared for the State, this was a clear case of murder in which both Mahender and Satish were definitely involved. He submitted that though the role ascribed to Satish was that of catching hold of Prem while Mahender gave a Keekar log blow on Prem's head, they both shared a common intention of not only committing house trespass but also the murder of Prem. He requested this Court to reject the appeal.

7. The four witnesses, who are alleged to have seen the occurrence, are PW2 Girish, PW3 Bal Kishan, son of the deceased Prem, PW4 Saroj, wife of the deceased Prem and PW9/A Mukesh, who is a resident of a jhuggi in the locality. Since the prosecution case is founded upon the statement Exhibit PW2/A of Girish, it would be appropriate to examine his testimony first. According to PW2 Girish he was working as a sweeper in Tirath Ram Hospital. He stated that on 26th October, the year of which he did not remember, but about seven months back, at about 11:15 am he was in front of his jhuggi, after having come from Tirath Ram Hospital after showing his mother to a

doctor. Mahender accused came from the front side. He stated that Mahender was also a resident of the same locality and did not have good relations with him. Mahender allegedly told him -- teri lidri khatam karni hai and started beating him with slaps and fists. He stated that he rescued himself and went inside his house. In the meantime, Mahender, his son Anand and Satish, nephew of Mahender, chased him and entered his jhuggi. During the scuffle the hut, made of wood and grass fell on him because of the scuffle and the accused persons continued beating him with fists. Mahender had a lathi in his hand and Anand also had a lathi but they did not hit with the lathis. The wall of his hut also fell down. He and his children raised an alarm and hearing that his maternal uncle Prem came in front of his jhuggi. Seeing Prem, Mahender exhorted that Girish's well wisher had come, he should be finished. It is further stated that Satish caught hold of Prem, after leaving Girish. Mahender, who had the Keekar log, gave a blow on the head of Prem with that Keekar log. Prem fell down on the ground feeling giddiness and thereafter Anand gave another lathi blow on the head of the deceased. After the scene was over Mahender was apprehended by the police. Anand and Satish escaped from the spot. He further stated in his examination-in-chief that his brother's son and another person (his bhanja, sister's son) took Prem to the hospital. He did not accompany them to the hospital but he remained at the spot. He went to the hospital in a scooter and there he learnt that Prem had expired. He stated that his statement was recorded by the police in the hospital and his statement is Exhibit PW2/A and that it bears his signature at point ‗A'. He stated that he came to the spot with the police, who seized the wooden log with which Mahender had assaulted Prem vide seizure memo Exhibit PW2/B. The wooden log (Exhibit P-

1) was snatched by the policemen from Mahender. He further stated that Anand and Satish were arrested from Jahangir Puri. In

examination-in-chief he stated that Mahender was arrested from the spot by the police when he was running after the incident at a distance of 10-15 paces. In cross-examination by the defence counsel, PW2 Girish stated that Mahender was standing in between his way but was standing at a distance of 10 paces from his house and that the house of Mahender is 15 paces from his house. He also stated that Mahender was standing all alone at that time. He further stated that Mahender did not have any lathi when he saw him first. He stated that he did not see any lathi in the hands of Mahender before he took that piece of log. He stated that in the meantime Anand and Satish came there from the jhuggis. Firstly he stated that Satish had a danda in his hand but he stated again that it was Anand who had a danda in his hand and that it was not a lathi. He stated that he escaped from the hands of Mahender, Satish and Anand and ran towards his house as there was nobody to save him. Of course, he was confronted with Exhibit PW2/A where it was not so recorded. He further stated that as soon as Mahender and his two companions, namely, Satish and Anand grappled with him the chappar fell down upon them. According to him Anand and Satish had broken the wall and entered in the house. He admitted that Mahender and Anand did not hit him with lathis. He stated that he first saw the Kiker log in the hand of Mahender when deceased Prem came to his house for his rescue. He stated that Prem was hit by that log which Mahender was carrying at a distance of about five paces from his house. He further stated that Mahender ran away towards the opposite side of his jhuggi but on the way he was arrested by the police.

8. PW3 Bal Kishan, son of the deceased Prem stated that on 26.10.1991 at about 11:15 am he was present in his jhuggi and he heard some hue and cry and came out of his jhuggi. He stated that he saw Mahender telling Prem that his maternal uncle Girish poses himself to

be a great leader and he be taught a lesson. He allegedly saw Satish catching hold of Prem by his collar and Mahender holding a Kiker log with which he hit Prem on his head. Prem fell down and in the meantime Anand also gave a danda blow on the head of Prem. Exhibit P-2 was shown to the witness and he said that this exhibit, which is a danda, was in the hand of Satish with which he had hit his father (Prem) on his head. He also stated that the shirt which was worn by his father Prem was torn from the collar.

9. PW4 Saroj, wife of the deceased Prem, stated that her husband Prem was having his meal and the accused were at that point of time quarreling with her nephew Girish. Prem had gone to separate them. Satish caught hold of Prem by his neck, Mahender gave a Kiker blow on Prem's head and Anand gave a lathi blow on the head of Prem. She stated that her husband Prem started bleeding profusely from his head and on seeing blood coming out she tied her chunni on his head to stop the oozing of blood. After tying the chunni, she became unconscious and fell down on the ground and she did not know what happened later on. In cross-examination she stated that she did not tell the police that she had come to the spot after hearing that her husband was being beaten by the accused. She was confronted with Exhibit PW4/DA where it is so recorded. She denied the suggestion that she was not present at the time when the incident took place.

10. PW9/A Mukesh stated that there was a chowk in front of his house and that he heard noises (shor sharaba) and immediately rushed to the chowk. At the chowk he saw Mahender, his son Anand and nephew Satish on the one side and Girish on the other, quarreling. Prem, who also resides in the same mohalla, was trying to separate the parties. On seeing the quarrel he left to call the police and later on he learnt of the murder of Prem. He did not witness the actual incident.

11. PW7 Constable Shri Gopal stated that on 26.10.91 at about 11:30 a.m. he and Constable Narinder Kumar were on patrol duty and had reached the jhuggis of old Chandrawal. A passerby told them regarding a quarrel that was going on at the Chowk. He and Constable Narinder, immediately rushed to the place where they found a crowd gathered. When they came near the crowd they noticed Prem lying on the ground and he was profusely bleeding from his head. They also noticed Mahender who was holding a keekar danda in his hand. After seeing them Mahender tried to slip away but PW7 and Narinder, apprehended him. One person from the public told them that Mahender was one of the assailants and his other two associates Anand and Satish had already run away from there. PW7 further stated that he removed Prem to Hindu Rao Hospital in a three wheeler. He further stated that the doctor who examined Prem in the emergency department of Hindu Rao Hospital declared him to be brought dead. He remained at the hospital and at about 12:30 p.m. sub inspector J. K. Sharma along with other constables arrived at the hospital and took up the investigation. In his cross-examination, this witness stated that Prem was lying on the ground and the other people were stunned. They had no cloth for stopping the blood which was gushing out of the head of the deceased Prem. They asked for a piece of cloth when he was being taken to the hospital. He could not say who brought the cloth. It was not a towel but a simple piece of cloth with which the head of the deceased was tied. He further stated that the piece of cloth remained in the three wheeler because they were in a great hurry at that time. He also stated that Constable Surinder Singh was sent to the police station with the ruqqa at about 1:30 p.m.

12. PW8 Constable Narinder Kumar stated that on 26.10.91 at about 11:30 a.m. when he and Constable Shri Gopal were on patrolling

duty a passerby told them that a quarrel was going on at the chowk in front out of jhuggi no. A448. They immediately rushed to the place and they noticed that a crowd had collected. Prem was lying on the ground and his head was bleeding profusely. Mahender was also present there and he was holding a keekar danda exhibit P-1 in his hand. On seeing them Mahender tried to slip away but with the help of the public and Constable Shri Gopal they apprehended Mahender. While Shri Gopal with the help of Girish removed Prem in a three wheeler scooter to Hindu Rao Hospital he remained at the spot along with Mahender. At about 11:45 a.m. sub inspector J. K. Sharma arrived there along with Constable Surinder. He stated that he narrated the facts to him and sub inspector J.K. Sharma instructed him to remain at the spot and guard the scene of the incident. Sub inspector JK Sharma along with the Constable left for Hindu Rao Hospital. At about about 3 p.m. he returned and SHO Shri Ram Singh also came with him. Mahender was taken into custody by SHO Shri Ram Singh. The keekar danda was also seized as per seizure memo exhibit PW2/B. In cross-examination this witness stated that the crowd consisted of 50/60 persons. He stated that Mahender had not been caught by anybody but he was standing there astonished and on seeing them he tried to slip away. Mahender was overpowered by them at a distance of 3/4 yards from the scene of occurrence. He stated that Prem was bleeding from his head and they did not use any cloth. Nor did any person from the public do so. He stated that apart from Prem, PW Mukesh, PW Girish, PW Bal Kishan and the wife of the deceased were also present there.

13. PW10 sub inspector JK Sharma stated that at about 11:45 a.m. he received information about the quarrel. He along with Constable Surinder Singh reached the spot where he found Constable Narinder Kumar. Mahender was in the custody of Constable Narinder Kumar who also had a keekar danda. Narinder Kumar told him that the

injured Prem had been removed to Hindu Rao Hospital. PW10 immediately rushed to Hindu Rao Hospital where he obtained the MLC of Prem. The doctor had given his note on the MLC that the patient had been brought dead and Girish met him in the hospital and he recorded his statement which is exhibit PW2/A. It was read over to Girish who signed the same and the ruqqa was despatched to the police station for registration of the case through Constable Surinder Singh. He returned to the spot where Constable Narinder Kumar produced Mahender who was arrested. The keekar danda was also seized. He also stated that on 26.10.91, Anand and Satish were apprehended from Jahangirpuri. Anand was interrogated and he made a disclosure statement exhibit PW2/E. In cross-examination, he revealed that he reached the hospital at about 12:30 p.m. and that he had jotted down the statement of PW Girish in the hospital at about 12:50 p.m. or so. He sent the ruqqa to the police station at 1:30 p.m.

14. PW11 Dr LK Barua who conducted the post-mortem examination on the body of Prem stated that the body was clothed in one shirt, banyan, lungi, one underwear and one iron kara on the right wrist. The shirt was bloodstained. There was no torn area or any cut marks. He stated that on external examination of the body the following injuries were seen:-

―1. One lacerated wound in mid frontal region of size 4.5 cm x 1.2 cm x bone deep with the abrasions around the wound. This injury was placed 2-5 cm above the anterior hair line.

2. One obliquely placed bruise mark on the posterior aspect of the body in the middle of size 8 cm x 2 cm with pale central area with raised margins.

4(sic). Dorsal aspect of left ring and little finger were seen swollen. There was no fracture underneath it.‖

According to PW 11 the injuries were ante mortem caused by blunt force application. Death in this case, in his opinion, was due to head injury and that Injury No.1 was individually sufficient to cause death in the ordinary course of nature. He also stated that the keekar danda was of 6'3" length and the bamboo lathi was of 2'9". After examining the same he was of the opinion that the injuries on the deceased could be possible by these articles. In cross-examination he stated that there was only one injury on the head of the deceased and that he did not notice whether there was any blood stain on the keekar log or on the small danda.

15. PW 14 inspector Ram Singh was the investigating officer. He stated that at about 1 p.m. he was informed that a murder had taken place at Chandrawal and that he immediately rushed to the Hindu Rao Hospital where the injured was taken. There he found that sub inspector JK Sharma had already recorded the statement of Girish which is exhibit PW2/A Thereafter he narrated as to what happened when he went to the spot. In cross-examination he stated that there were 40 to 50 persons present at the spot when he arrived there. He asked all those gathered there to come out and tell him about the case. 2-3 persons came out from the crowd and narrated about the incident. He then stated that only Bal Kishan, Mukesh and Saroj wife of the deceased narrated about the case. He stated that it was correct that all these persons were closely related to each other. Importantly, he stated that in spite of his best efforts no independent witness could be joined.

16. Having surveyed the evidence, let us now examine the credibility of the four so called eye-witnesses. PW9/A Mukesh only stated that he heard noises and rushed to the chowk where he saw that Mahender, Anand and Satish on the one side and Girish on the other were quarrelling. He also saw that Prem was trying to separate the

parties. However, on seeing the quarrel he left for calling the police and it is only later on that he heard that Prem had been murdered. By virtue of his own testimony this witness did not see the incident. He cannot be regarded as an eyewitness of either the alleged incident of house tresspass or the alleged murder of Prem.

17. PW4 Saroj had stated in her statement before the police exhibit-PW4/DA recorded on 26.10.91 that at about 11:15 a.m. on hearing that a quarrel was going on between Prem's nephew Girish and Mahender she had come to intervene but all the three - Mahender Anand and Satish - had killed him. She stated that the said persons had murdered her husband by way of giving danda blows. Importantly, she stated that on hearing about the injuries sustained by her husband, when she reached the spot she saw that her husband was lying on the ground and blood was pouring out of its head. She contradicted this statement in her testimony before court where she claimed to have seen the incident. Though she denied the suggestion that she did not tell the police that she had come to the spot after hearing that the husband was being beaten by the accused, it does appear to us that she did not witness the incident as alleged by the prosecution. Her testimony is not free from doubt and cannot be relied upon for confirming a conviction. It may also be pointed out that Girish who is the star witness of the prosecution has not ascribed any role to this witness. Girish has not mentioned anything about PW4 Saroj tying her chunni on Prem so as to stop the bleeding. In fact, the two constables who immediately arrived at the scene namely PW7 Constable Shri Gopal and PW8 Constable Narinder Kumar stated that when they saw Prem lying on the ground they did not see any cloth tied on his head to stop the bleeding. It appears that PW4 Saroj had merely stated what she had heard from others about the incident. It is apparent that she arrived at the scene after the incident was over and when Prem was lying on the ground

with his head profusely bleeding. Therefore, it would be unsafe to rely up on her testimony for arriving at the guilt of the appellant Satish.

18. PW3 Bal Kishan, in his testimony before court stated that after hearing noises when he came out from his jhuggi he found Mahender telling Prem that Girish calls himself to be a great helper and he be taught a lesson. He stated that exhibit P-2 is the danda which was in the hand of Satish with which he had hit his father Prem on his head. He also stated that the shirt which was worn by his father Prem was torn from the collar. We have already indicated that none of the other witnesses have stated that Satish had a danda in his hand or that Satish had hit Prem with it. It is also not the prosecution case that Satish had hit Prem with a danda. In fact, the only role ascribed to Satish is that of following Mahender into Girish's jhuggi and of catching hold of Prem. It is obvious that PW3's testimony is different to that of the prosecution. Moreover, PW3 Bal Kishan, even as per his own testimony, came to the alleged scene of occurrence after Prem's arrival. Clearly, he is not a witness to the alleged house trespass or the verbal altercation alleged to have taken place between Girish and Mahender. Furthermore, PW11 Dr L.K. Barua who conducted the post-mortem examination has stated in his testimony that though Prem's shirt was bloodstained, there was no torn area or any cut marks. This clearly contradicts PW3 Bal Kishan's testimony that the shirt worn by Prem was torn from the collar. Apart from being a serious contradiction it is a clear embellishment on the part of this witness in order to suggest that the collar was torn on account of Satish having caught hold of Prem. For these reasons, we find it difficult to rely upon PW3's so-called ocular evidence.

19. This leaves us with PW2 Girish. The prosecution case is that Girish and Mahender have a verbal confrontation. It is a chance meeting because while Girish was returning from Hospital after having taken his mother there he found Mahender in front of his jhuggi. At that point of time Satish is not there. Mahender is unarmed. The verbal assault is said to turn physical when Mahender allegedly slapped and gave fist blows to Girish. Even at that point of time, Satish is not there. Girish then allegedly managed to save himself from Mahender and ran into his jhuggi. It is then that he was said to have been followed by Mahender and Anand and Satish. Satish is unarmed throughout. Anand is said to be armed with a lathi. At that point also, Mahender is unarmed. The three accused are then alleged to have entered the jhuggi by breaking down a wall because of which the roof (chhappar) is said to have caved in. All of them go out of the jhuggi and then Prem enters the scene. Thereupon, it is alleged that Mahender exhorts that Prem should be dealt with first. Then Satish catches hold of Prem by his shirt collar/neck and Mahender picks up the keekar log and hits Prem on his head with it. Anand who is armed with a lathi also gives a blow on Prem's head while he is falling down. Satish and Anand take flight while Mahender remains at the scene with the keekar log in his hand till he is apprehended by the two constables PW7 and PW8.

20. In this backdrop, let us assume that Mahender did hit Prem on his head with the keekar log. But, in this appeal we are to only consider Satish's involvement. Satish was unarmed throughout. He was admittedly not present when the verbal duel between Girish and Mahender took place. In fact, Mahender was unarmed. He only picked up the keekar log at the spot in the heat of the moment. Assuming that Satish did catch hold of Prem, he had no way of knowing that Mahender, who was hitherto unarmed, would pick up a keekar log

lying there and hit Prem on the head with it. In these circumstances, it cannot be said that Satish shared the intention or knowledge of likelihood of Prem being hit on the head and consequently resulting in his death. Another factor which supports this conclusion is the testimony of PW8 Constable Narinder Kumar who stated that when he and Constable Shri Gopal arrived at the scene they found that Prem was lying on the ground, 50/60 persons had gathered there and Mahender had not been caught by anyone and he was standing there ―astonished‖. This indicates that Mahender himself was shocked by what he had done and was ―frozen‖ because of this. When Mahender himself was so astonished and shocked by what had happened, how can a common intention to murder be attributed to Satish? We may also indicate that nothing (apart from Girish's testimony) has been brought to our notice to indicate that Satish had entered his jhuggi by breaking the wall.

21. PW2 Girish in his signed statement Exhibit PW2/A had stated that he and Constable Shree Gopal had taken Prem to Hindu Rao Hospital. But, in his cross-examination before court he admitted that he did not take Prem to hospital and remained at the spot. It did occur to us as strange that Girish, for whose protection Prem came out of his jhuggi and received the deathly blow, did not even bother to go with Prem to the hospital. PW2 also stated that while Prem was falling down, Anand also gave a lathi blow on his head. And, this allegation has been parroted by the other three so-called eye-witnesses whom we have already found to be not worthy of credence. By this account there ought to have been two injuries on Prem's head. But, PW11 Dr LK Barua categorically stated that there was only one injury on Prem's head. This aspect, when raised before the Trial Court was lightly and incorrectly brushed aside by referring to the fact that Prem's body had more than one injury. The issue raised was whether Prem had one or

two injuries on his head and not whether he had one or two injuries on his body. The Trial Court, we are afraid, completely missed this point. If there is only one injury on Prem's head, who gave it? Mahender or Anand? Satish had no role ascribed to him for the alleged blow given by Anand. In any event, a solitary injury on Prem's head belies PW2's testimony that both Mahender and Anand gave blows with their respective weapons. So, even PW2 Girish cannot be relied upon for fixing the guilt on Satish.

22. In fact, Satish's presence at the scene itself is doubtful. The prosecution case is that because of Mahender's involvement in the altercation with Girish, both Anand and Satish joined Mahender in his pursuit of Girish. It is Mahender who allegedly gave the deathly blow. He continued to stay at the scene of the crime while Satish and Anand took flight leaving Mahender alone. People do react differently to crimes, but this does strike us as odd and improbable. It also shrouds the presence of Satish at the scene with improbability.

23. At this juncture we would like to point out what the Trial Court had to say about the presence of Anand and Satish at the scene. The learned ASJ observed :-

―(22) One incriminating evidence is also present in the file which is disclosure statement of accused Anand exhibit PW 2/E wherein he stated:-

‗Dinank 26.10.91 Ko Meray Pitaji Mahender aur Parausi Girish Key Beech Jhagra Ho Gaya Tha Jo Jhagra Men Main aur Mera Cousin Satish alias Chuha bhi they. Dauraney Jhagra Mainey Mritak Prem Key Sir Men Danda Sey Var Kiyay They.'

[English translation is as follows - ‗On 26.10.91 a fight took place between my father Mahender and neighbour Girish. In that fight me and my cousin [email protected] were also involved. During the fight I gave danda blows on the head of deceased Prem.']

In view of the disclosure statement the presence of both the accused persons established on the spot.‖ [portion in brackets added]

The learned ASJ has contravened the time-honoured principles of inadmissibility of disclosure statements except to the extent and limited to the purpose indicated in section 27 of The Indian Evidence Act, 1872. In State (NCT of Delhi) v. Navjot Sandhu: (2005) 11 SCC 600 [at page 700] , the Supreme Court explained the scope of section 27 as follows:-

―121. The first requisite condition for utilising Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more. It is explicitly clarified in the section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the information conveyed in the statement to the police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the section. The rationale behind this provision is that, if a fact

is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. As pointed out by the Privy Council in Kottaya case [Pulukari Kottaya v. Emperor: AIR 1947 PC 67]: (AIR p.70, para 10)

―clearly the extent of the information admissible must depend on the exact nature of the fact discovered‖

and the information must distinctly relate to that fact.

Elucidating the scope of this section, the Privy Council speaking through Sir John Beaumont said: (AIR p. 70, para

10)

―Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused.‖ (emphasis supplied)

We have emphasised the word ―normally‖ because the illustrations given by the learned Judge are not exhaustive. The next point to be noted is that the Privy Council rejected the argument of the counsel appearing for the Crown that the fact discovered is the physical object produced and that any and every information which relates distinctly to that object can be proved. Upon this view, the information given by a person that the weapon produced is the one used by him in the commission of the murder will be admissible in its entirety. Such contention of the Crown's counsel was emphatically rejected with the following words: (AIR p. 70, para 10)

―If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the

confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect.‖

Then, Their Lordships proceeded to give a lucid exposition of the expression ―fact discovered‖ in the following passage, which is quoted time and again by this Court: (AIR p.70, para 10)

―In Their Lordships' view it is fallacious to treat the ‗fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact.

Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‗I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‗with which I stabbed A' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.‖ (emphasis supplied)

122. The approach of the Privy Council in the light of the above exposition of law can best be understood by referring to the statement made by one of the accused to the police officer. It reads thus: (AIR p.71, para 13)

―... About 14 days ago, I, Kottaya and people of my party lay in wait for Sivayya and others at about sunset time at the corner of Pulipad tank. We, all beat Beddupati China Sivayya and Subayya, to death. The remaining persons, Pullayya, Kottaya and Narayana ran away. Dondapati Ramayya who was in our party

received blows on his hands. He had a spear in his hands. He gave it to me then. I hid it and my stick in the rick of Venkatanarasu in the village. I will show if you come. We did all this at the instigation of Pulukuri Kottaya.‖

The Privy Council held that: (AIR p.71, para 14)

―14. The whole of that statement except the passage ‗I hid it (a spear) and my stick in the rick of Venkatanarasu in the village. I will show if you come' is inadmissible.‖ (emphasis supplied)‖

Viewed in this light, the entire passage extracted by the Trial Court from the disclosure statement of Anand is inadmissible. There is no discovery of any fact. It is merely confessional and therefore inadmissible. Moreover, and what is worse, it has been used by the Trial Court against co-accused Satish to establish his presence at the spot. Such an approach is against the established principles of law and is wholly unacceptable.

24. The learned ASJ has also not given any importance to the plea raised by the defence that all the purported eye-witnesses were closely related and were interested witnesses. It is true that the testimony of a related witness cannot be thrown out just because of this fact. But, at the same time the evidence of closely related witnesses must be equally closely watched and scrutinized by the court. In the present case the investigating officer admitted in his cross-examination that there were many people present at the scene but no one came forward other than the ―interested‖ witnesses who were closely related.

25. All these factors are suggestive of chinks in the prosecution case against Satish, the surviving appellant. In our view, the

prosecution has not been able to prove its case beyond reasonable doubt. Its case against Satish is full of improbabilities. We cannot be certain or sure of Satish's role or presence at the scene. Consequently, we acquit Satish @ Chuha (appellant no.2) of all charges and allow his appeal. His bail bond is cancelled and the surety stands discharged.

BADAR DURREZ AHMED, J

V.B. GUPTA, J February 12, 2009 SR