Rajesh vs State
2009 Latest Caselaw 513 Del

            THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment delivered on: 12.02.2009

+ CRL APPEAL No. 134/1992

RAM SINGH                                                    ... Appellant

                                   - versus -

STATE                                                        ... Respondent

AND

+ CRL APPEAL No. 152/1992

RAJESH ... Appellant

- versus -

STATE                                                        ... Respondent

Advocates who appeared in this case:
For the Appellants       : Mr Bankim Kulshreshtha with Mr Krishan Kumar
                           and Mr Deepak Vohra
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. The appellants in these appeals are aggrieved by their

conviction vide judgment and / or order dated 18.07.1992 by the

Additional Sessions Judge, Shahdara, Delhi under Sections 302/34 of

the Indian Penal Code, 1860 (hereinafter referred to as „IPC‟)

alongwith two others, namely, Suresh and Mukesh for having caused

the death of Parveen Kumar by stabbing. The appellants are also

aggrieved by their conviction under Section 307/34 IPC in respect of

the injuries caused to Laxmi Narain and Nanu. All the convicts were

sentenced on 18.07.1992 by the learned Additional Sessions Judge to

undergo life imprisonment in respect of the offence under Section

302/34 IPC and 5 years rigorous imprisonment in respect of the offence

under Section 307/34 IPC. Both the punishments were to run

concurrently.

2. It may also be pointed out, at the outset, that all the four

persons, who had been convicted, had filed appeals against their

conviction and sentence. Insofar as the other two convicts, namely,

Mukesh and Suresh are concerned, their appeals being Criminal Appeal

186/1992 and Criminal Appeal 189/1992 were dismissed by another

Division Bench of this court in exercise of its powers under Section

482 of Code of Criminal Procedure, 1973 (hereinafter referred to as

„CrPC‟). The appeals were so dismissed by a detailed judgment and /

or order delivered on 18.02.2008. The said Bench was of the view that

as the convicts Suresh and Mukesh had not appeared before court

despite issuance of non-bailable warrants, the inherent powers of the

High Court preserved by Section 482, CrPC could be exercised

inasmuch as the appeals by such convicts, who had taken advantage of

orders of suspension of sentence and then not appeared before court,

were manifestly an abuse of the process of court. In the present

appeals, however, we are not concerned with the dismissal of the

appeals of the co-convicts Suresh and Mukesh inasmuch as such

dismissal was not on merits.

3. Having cleared the ground for proceeding with the present

appeals, it would be necessary to state in brief the prosecution case. As

per the charges framed by the trial court on 19.05.1988, the two

appellants herein and the said Suresh and Mukesh were all charged of

having committed the murder of Parveen Kumar by invoking the

provisions of Section 302 read with Section 34 IPC. It was alleged that

they had, on 25.08.1987 at about 11.00 p.m., in front of House No. L-

331, Sunder Nagri, in furtherance of their common intention,

committed the murder of Parveen Kumar and thereby they had

committed the offence punishable under Section 302/34 IPC. The

second charge that was leveled against the appellants and the said

Suresh and Mukesh was that they had committed an offence punishable

under Sections 307/34 IPC. The allegation was that they had on

25.08.1987 at about 11.00 p.m., in front of House No. L-331, Sunder

Nagri, in furtherance of their common intention, caused injury to

Laxmi Narain and Nanu. It was alleged that the injuries were so caused

with the intention or knowledge and under such circumstances that, if

by that act they had caused the death of Laxmi Narain and Nanu, they

would have been guilty of murder. Both the charges arise out of the

same alleged incident. Exhibit PW-1/A is the Ruqqa based on the

statement dated 26.08.1987 made by Rajender Kumar who was a

neighbour of the deceased Parveen Kumar. In the said statement,

Rajender Kumar (PW-1) revealed that about three months back, the

engagement of Chotey Lal‟s daughter was fixed with Parveen which

was broken later on some issue between them. Because of that, Chotey

Lal bore a grudge against Parveen and on account of this grudge, the

„relatives‟ of Chotey Lal, namely, Suresh Mukesh, Rajesh and Ram

Singh, who had visited Chotey Lal‟s house, made a murderous attack

on Parveen, Laxmi Narain and Nanu while they were asleep in their

house situated adjacent to Rajender Kumar‟s house. It was further

stated by Rajender Kumar that at about 11.00 p.m. in the night, Suresh

caught hold of Parveen, Mukesh caught hold of Nanu and Ram Singh

inflicted knife blows on all the three said persons as a result of which

Parveen, Laxmi Narain and Nanu sustained injuries in their chest,

abdomen and other parts of their bodies. It was further stated that a

number of other persons had also witnessed the occurrence. According

to the said statement, the incident had occurred as a result of murderous

attack by the said „relatives‟ of Chotey Lal on Nanu, Parveen and

Laxmi Narain with a view to settle scores. It was requested that legal

action be taken against all the said four persons.

4. On the basis of the Ruqqa, FIR No.194/1987 (Exhibit PW-

4/B) was registered at Police Station Nand Nagri on 26.08.1987

initially under Sections 307/34 IPC.

5. The injured persons were taken to General Hospital,

Shahdara. Laxmi Narain was discharged on 29.08.1987, Nanu was

discharged on 03.09.1987 and Parveen died in hospital on 24.09.1987.

The prosecution examined 16 witnesses. However, there are only two

alleged eye witnesses, other than the injured Nanu and Laxmi Narain.

They are Rajender Kumar (PW-1), who is a neighbour of the deceased

Parveen and Premwati (PW-5) who lives in a house opposite to the

alleged place of occurrence.

6. There is an issue with regard to the conviction under Section

302/34 IPC in relation to the death of Parveen. The post mortem report

(Exhibit PW-13/A) which has been proved by Dr George Paul,

Assistant Professor, Department of Forensic Medicine, Maulana Azad

Medical College, indicates the cause of death as due to acute

respiratory distress and respiratory failure as a result of acute

epiglottitis and laryngitis as diagnosed clinically in a case suffering

from fulminate viral hepatitis. More importantly, it was stated that

injury No.3 was likely to cause death in the ordinary course of nature

"though in this case has not done so". Injury No.3 as indicated in the

post mortem report is as under:-

Partially healed scab separated (in its upper back part) wound of 6x1 cm. present obliquely downwards and forward in the lower outer part of Rt. side abdomen just above the illiac crest with a partially separating infected scab present in the lower front part of the wound; the lower front part being 94 cms. above Rt. heel."

7. The post mortem report also recorded the opinion of the said

PW-13 (Dr George Paul) that no opinion could be given regarding the

nature of weapon causing injury No.3 as the external wound and most

of the internal wound had healed in a manner which left little for

interpretation on post mortem examination. The testimony of PW-13,

who entirely supports his post mortem report and opinion, clearly

indicates that the only injury which was likely to cause death in the

ordinary course was injury No.3 on the person of Parveen Kumar.

However, the said witness had also given his clear opinion that injury

No.3, though likely to cause death in the ordinary course of nature, had

not done so in this case. This, coupled with the fact that the cause of

death was clinically diagnosed as fulminate viral hepatitis, clearly

establishes beyond doubt that the injuries alleged to have been inflicted

by the appellants in the course of the alleged incident did not cause the

death of Parveen Kumar. This fact alone, which, unfortunately, was

completely overlooked by the trial court, takes the case outside the

purview of Section 302 IPC. In fact, the family of provisions starting

from Section 299 IPC and ending with Section 304 IPC all require the

causing of death of a person by another and such death must amount to

culpable homicide as defined in Section 299 IPC. In view of the clear

medical evidence, the death of Parveen Kumar has not been caused by

the appellant‟s alleged act / acts. Consequently, the appellants could

not have been booked or convicted under Sections 302/34 IPC. The

question, however, would remain as to whether a case is made out

against the appellants under Section 307/34 IPC for having inflicted

injuries on Parveen Kumar with the intention or knowledge and under

such circumstances that, if by that act they had caused the death of

Parveen Kumar, they would be guilty of murder.

8. The prosecution case is that Chotey Lal‟s daughter (Giano)

was engaged to Parveen and that the engagement was broken by

Parveen and because of this, Chotey Lal had a grudge against Parveen.

It is because of this grudge against Parveen that the so-called „relatives‟

of Chotey Lal, namely, Suresh, Mukesh, Rajesh and Ram Singh, made

a murderous attack on Parveen, Nanu and Laxmi Narain, all of whom

received stab injuries. It is important to note that the statements of

Nanu and Laxmi Narain were recorded by the police only after their

discharge from hospital. The learned counsel for the appellants

contended that the statements ought to have been recorded before Nanu

and Laxmi Narain were discharged from hospital and as soon as they

are declared fit to make such statements. The non-recording of such

statements prior to their discharge gave them time to sit together and

confer and to make statements which were mere copies of the

statements made by Rajender Kumar. It was, therefore, contended that

this is the reason why the statements of PW-1 (Rajender Kumar), PW-2

(Laxmi Narain) and PW-3 (Nanu) were identical in terms inasmuch as

they had time to make up their minds and confer amongst themselves

before making their statements to the police. Another important

circumstance which had been pointed out by the learned counsel for the

appellants was that although Parveen remained in hospital for almost a

month as he died on 24.09.1987, no statement was taken from him. No

dying declaration was recorded even though he was in hospital for such

a long duration before he died. No tangible explanation was

forthcoming for not recording his statement.

9. With this background, it would be appropriate to examine

the testimonies of PW-1 (Rajender Kumar), PW-2 (Laxmi Narain),

PW-3 (Nanu) and PW-5 (Premwati). PW-1 (Rajender Kumar)

reiterated the statement made by him earlier (Exhibit PW-1/A). In

cross-examination, he revealed that Laxmi Narain is the mausa of

deceased Parveen and that Parveen, Laxmi Narain and Nanu live

together in one house. He also revealed that after the breaking of the

engagement with Parveen, Giano was married with accused Mukesh

and that about 22 days after such marriage, Giano died. He, however,

denied this suggestion that Giano had been administered poison

through Premwati (PW-5) at the instance of Parveen, Nanu and Laxmi

Narain. While he admitted that Premwati lived in front of his house,

PW-1 (Rajender Kumar) denied the suggestion that he had any physical

relations with her. He further stated that he had seen 15-20 persons

standing near their jhuggis. He denied the suggestion that Chotey Lal

and his brother-in-law (Shama Charan) had given stab blows to Laxmi

Narain, Nanu and Parveen. He, however, admitted that since the date

of occurrence, Chotey Lal, Vidyawati, Jagmohan and Shama Charan

had left the locality and that the police did not make any enquiries from

Chotey Lal, Vidyawati or Shama Charan in his presence. He also

stated that he was sleeping outside and so were the injured and the

deceased and that their cots were about 4 feet from his cot, Laxmi

Narain‟s cot being the nearest to him. He stated that Premwati was in

her jhuggi at that time.

10. PW-2 (Laxmi Narain) also stated that about 2-3 months

before the occurrence, Parveen had been engaged to Chotey Lal‟s

daughter (Giano) and that the engagement had broken. As a result of

this, Chotey Lal started having a ranjish (grudge). He also stated that

Giano died about 25 days after her marriage and was not in a position

to state as to whether Chotey Lal had any suspicion on them with

regard to her death. He stated that on 25.08.1987 at about 11.00 p.m.

in the night, he was sleeping outside, in front of his house in the gali

along with other cots on which Nanu and Parveen were sleeping.

Mukesh caught hold of him from the side and Ram Singh stabbed him

with a knife under the left armpit. Suresh had caught hold of and

pressed Parveen down and Ram Singh stabbed him. Nanu was also

pinned down by Rajesh and Ram Singh stabbed him also. He also

stated that Rajender Kumar, who was lying on cot 3-4 cots away and

Premwati, who lived in front of his house, tried to intervene to save

them and that as soon as Premwati came near to intervene, she was

violently pushed away by the accused persons. In cross-examination,

Laxmi Narain (PW-2) revealed that the police did not record his

statement and that he did not lose consciousness before reaching the

hospital. He disclaimed any knowledge of whether on the date of

occurrence, there was a tehraween of the deceased (Giano) and he

stated that he did not know whether the accused had gone to the

tehraween of Giano or not. He also denied the suggestion that they

were stabbed by Shama Charan, Chotey Lal, Jagmohan, etc.

11. PW-3(Nanu) also stated in his examination-in-chief that

about 2 ½ - 3 months ago, Parveen had been engaged to Chotey Lal‟s

daughter (Giano). Parveen had broken the arrangement as the moral

character of Giano was not good and Chotey Lal harboured a grudge

(ranjish) on that account. Giano was subsequently married to Mukesh

and she died about 20-25 days after her marriage. Chotey Lal had

suspicion on them for the death of Giano. He also reiterated the

incident of 25.08.1987 in a similar vein to what PW-2 (Laxmi Narain)

had stated. He also stated that Rajender and Parveen tried to save them

and that Premwati came out as they were being stabbed and just came

over Ram Singh who pushed her away. He also stated that his wife

Guddi took him to hospital in a rickshaw. In cross-examination, he

stated that he had told the police that his wife had taken him to hospital

in a rickshaw, but he was confronted with Exhibit PW-3/DA wherein it

was not so recorded. He denied any knowledge of whether on the date

of occurrence, there was a tehraween function in respect of the

deceased Giano. He also stated that he could not say as to when Shama

Charan and Chotey Lal left the locality, but that they had left as he

came to know about it. He also stated in cross-examination that after

he received the stab injuries, he was fully conscious for about a minute

and thereafter he felt darkness and lost consciousness after sitting in the

rickshaw.

12. He regained consciousness the next morning and it is only

after his discharge from hospital that he was called from his house to

the police station where he made his statement which was recorded by

the police. In response to a court question, he stated that he did not

know the names of the accused before the date of occurrence and that

Rajender told him the names of the accused persons though he knew

them by their faces.

13. PW-5 (Premwati) stated that her house was opposite to the

house of Laxmi Narain, Nanu and Parveen, etc. She stated that about a

year ago (her testimony was recorded on 05.10.1988) when she

returned after working in the house of another around 9.30 p.m., she

heard a noise when she was about to go to bed. She came out and saw

that Suresh had caught hold of Parveen, Mukesh had caught hold of

Laxmi Narain and Nanu was secured by accused Rajesh. Ram Singh

stabbed but she could not tell whom he had stabbed. She stated that

she tried to intervene and tried to catch hold of accused Ram Singh but

he pushed her away and while doing so Ram Singh got pushed against

the wall. She further stated that all the accused then went towards the

house of Chotey Lal saying that they had settled the score with him.

She was cross-examined by the Additional Public Prosecutor on two

points, firstly, regarding the conference of the accused with Chotey Lal

on the date of occurrence and secondly on the point as to who caused

the stab injuries. During such cross-examination, she stated that it was

correct that she had stated to the police that Ram Singh had a knife and

he stabbed all the three injured Parveen, Laxmi Narain and Nanu. On

cross-examination by the learned counsel for the defence, she stated

that the occurrence took place around 11.00 p.m. and that 10-15

persons were present in the gali when she came out of her house. The

injured were lying on the cots and she saw the accused securing

Parveen, Laxmi Narain and Nanu. Rajender was trying to save them.

She also stated that she did not know Rajender from before. Then she

volunteered that Rajender lived in front of her house. She denied the

suggestion that she was living with Rajender as his keep. She admitted

that there was enmity between Parveen, Nanu and Laxmi Narain on the

one side and Chotey Lal on the other due to the breaking of the

engagement by Parveen. She also stated it to be correct that Chotey Lal

had lodged a report against them and that she used to visit the house of

Chotey Lal. She also stated that after the death of Giano, Chotey Lal

became more inimical against Parveen, etc. She stated that Mukesh is

the son-in-law of Chotey Lal, Suresh is the brother of Mukesh, but she

did not know the relationship of Ram Singh and Rajesh with Chotey

Lal. She also denied the suggestion that Shama Charan and Chotey Lal

had stabbed Parveen, Laxmi Narain and Nanu. She stated that she was

in the house when the injured were removed to the hospital and did not

know who removed them to the hospital. The mohalla people were

there who did not come forward out of fear. She further stated that she

had seen the injured lying on the cots and went inside the house.

14. PW-15 (SI Jeevan Lal) was the Investigating Officer. He

stated that he met no lady in the hospital thereby implying that Nanu‟s

wife Guddi was not there. He also stated that the clothes which

Rajender was wearing had no blood on them. He further stated that

when he reached the spot alongwith Rajender at about 1.30 a.m., he

found cots and bedding, but did not take them into possession nor did

he photograph, nor did he find any blood on them. He stated that he

first inspected the spot at about 2.00 a.m. and that he had apprehended

the accused about half an hour later near the park. This factum,

however, is contradicted by Constable Jagbir Singh (PW-8), who in his

examination-in-chief, stated that he had gone to the site of occurrence

where the I.O. had gone and that all the four accused were arrested

there and personal search memos were prepared, the memos being PW-

1/B to PW 1/E, which bore his signatures. In cross-examination, PW-8

has further stated that Ram Singh was arrested from 331, Sunder Nagri.

PW-8 had also stated that Ram Singh was not a resident of Sunder

Nagri.

15. Coming back to the testimony of PW-15 (SI Jeevan Lal), he

stated in cross-examination that it was correct that there was enmity

between Chotey Lal‟s party on the one side and Nanu, etc. on the other

side and had come to know of this during investigation. He also stated

that it was correct that Ram Singh had no enmity with Laxmi Narain,

Parveen and Nanu. He further stated that he found no blood on the

clothes of any of the accused and no weapon of offence was recovered.

Ram Singh had made no disclosure statement with regard to the

weapon of offence. Importantly, he stated that he did not record the

statement of Chotey Lal, Shama Charan, his wife Vidyawati and

Jagmohan. He denied the suggestion that after having found out that

Shama Charan and Chotey Lal were guilty, he let them off and instead

falsely implicated the accused. In further cross-examination, he stated

that no blood had fallen on the spot. He also stated that he continued

visiting the hospital after 2nd September, 1987 but could not contact the

doctor till the death of Parveen.

16. A review of the evidence referred to above makes it clear

that even as per the prosecution case, there was no enmity between

Ram Singh and Rajesh on the one hand and Parveen, Laxmi Narain and

Nanu on the other. If there was any animosity, it was between Chotey

Lal and Parveen. The prosecution has not been able to indicate as to

how Ram Singh and Rajesh, the appellants herein, if at all, were related

to Chotey Lal. Their presence at the spot as also at Chotey Lal‟s house

is not explained by the prosecution. This circumstance is very material

inasmuch as Ram Singh and Rajesh are not residents of the locality.

The questions that remain unanswered on the basis of the prosecution

evidence are: Why did Ram Singh and Rajesh come to the locality ?

Why did they attack Parveen, Laxmi Narain and Nanu ? It is not the

case of the prosecution that they on their own intended to inflict

injuries on the said persons and or attempt to murder them. The

prosecution case rests on the premise that because of the animosity

between Chotey Lal and Parveen, the appellants attacked Parveen,

Laxmi Narain and Nanu. At the same time, Chotey Lal has not at all

been implicated by the prosecution. Nor has the prosecution

interrogated Chotey Lal or his brother Shama Charan, both of whom, as

per the prosecution witness themselves, left the locality soon after the

incident. It is difficult for us to imagine a situation where Ram Singh

and Rajesh, who did not bear any ill feeling towards Parveen, Laxmi

Narain and Nanu, would take it upon themselves to settle the scores of

a dispute between Chotey Lal and Parveen in which they were not at all

involved. It is not the case of the prosecution that Ram Singh and

Rajesh were contract killers who had been hired by Chotey Lal to carry

out the murderous attack on Parveen, Laxmi Narain and Nanu. It is

also not the case of the prosecution that Chotey Lal asked Ram Singh

and Rajesh to do so. It, therefore, is highly improbable that Ram Singh

and Rajesh, who did not even allegedly act at the behest of Chotey Lal,

would take it upon themselves alongwith other co-accused to launch

the murderous attack as alleged by the prosecution. The prosecution

case becomes even more improbable because while it has come in

evidence that Chotey Lal and Shama Charan left the place of

occurrence soon after the alleged incident, Ram Singh and Rajesh were

arrested in the vicinity.

17. According to the Investigating Officer, SI Jeevan Lal (PW-

15), the accused were arrested at around 2.30 a.m. near the park.

However, according to Constable Jagbir Singh (PW-8), who

accompanied the Investigating Officer when he went to the site of

occurrence, stated that all the four accused were arrested there and

personal search memos were prepared. The search memos in respect of

Rajesh is Exhibit PW-1/C and the search memo in respect of Ram

Singh is Exhibit PW-1/D. In both the search memos, Constable Jagbir

Singh (PW-8) has signed as a witness. As noted above, in

examination-in-chief, Constable Jagbir Singh (PW-8) has categorically

stated as under:-

"From the police station, I went to the site of occurrence where I.O. had gone. All the four accused were arrested there and personal search memos were prepared. The memos Ex. PW1/B to E bear my signatures."

18. Moreover, in cross-examination, this witness, i.e., Constable

Jagbir Singh (PW-8) has stated that Ram Singh was arrested from 331,

Sunder Nagri. It may be recalled that 331, Sunder Nagri is the house of

Laxmi Narain and Nanu. So, while the Investigating Officer stated that

the accused were arrested near a park, Constable Jagbir Singh (PW-8)

has clearly stated that the accused were arrested at the site of

occurrence and in cross-examination, he stated that Ram Singh was

arrested from 331, Sunder Nagri. The incident allegedly took place at

about 11.00 p.m. on 25.08.1987. The arrest of the accused is said to be

made around 2.30 a.m. on 26.08.1987. It is difficult to believe that the

appellants Ram Singh and Rajesh, if they were involved in the incident,

would have remained at the scene of occurrence for three and a half

hours, particularly when they were not residents of the locality and they

were not put under restraint by any person. What is more intriguing is

that Ram Singh is said to have been arrested from 331, Sunder Nagri

which is the house of Laxmi Narain and Nanu. What was he doing

there at 2.30 a.m., three and a half hours after he is alleged to have

stabbed not only Parveen, but also Laxmi Narain and Nanu ? This

question remains unanswered and the benefit would definitely flow to

the defence. The presence of Ram Singh and Rajesh in the locality is

more probable in view of the defence version of them having come to

Chotey Lal‟s house to attend the tehraween ceremony of deceased

Giano. The prosecution case is fraught with mere probabilities and on

this score cannot be said to conclusively lead to the guilt of the

appellants.

19. There are further problems with the prosecution case. First

of all, Chotey Lal and Shama Charan have not been interrogated at all.

This is important because it was Chotey Lal who had a motive, if at all,

to cause injuries to or murder Parveen. Secondly, Parveen was in

hospital from 25.08.1987 till 24.09.1987 when he died due to viral

hepatitis, but his statement / dying declaration was not recorded. The

only explanation which is forthcoming with regard to the non-

recording of Parveen‟s statement is in the cross-examination of PW-15

(SI Jeevan Lal) that he did not record the statement of Parveen till his

death and he was never fit for statement. He, of course, denied the

suggestion that he did not deliberately record his statement. However,

in further cross-examination, the said witness, i.e., SI Jeevan Lal (PW-

15) stated that he continued visiting the hospital after 2nd September,

but could not contact the doctor till the death of Parveen. From these

statements, it is clear that the Investigating Officer (SI Jeevan Lal) had

not bothered to contact the doctor with regard to the fitness of Parveen

for recording his statement. Without having contacted the doctor, how

could the Investigating Officer come to the conclusion that he was not

fit for making a statement. This is another indication of the slip-shod

and callous manner in which the Investigating Officer has investigated

this case. A person has been stabbed and is lying in hospital for about

a month, yet he has not bothered to contact the doctor who is looking

after Parveen. It is difficult to believe that the Investigating Officer

could not contact the doctor in a space of one month !

20. Thirdly, even the statements of Laxmi Narain and Nanu were

not recorded while they were in hospital. Laxmi Narain was

discharged on 29.08.1987 and Nanu was discharged on 03.09.1987.

PW-2 (Laxmi Narain), as indicated above, clearly stated that the police

did not record his statement although he had not lost consciousness

before reaching hospital.

21. Nanu (PW-3) has also stated that after having received the

injury, he was fully conscious for about a minute and thereafter felt

darkness and lost consciousness after sitting in the rickshaw. He,

however, stated that he regained consciousness in hospital next

morning, i.e., on 26.08.1987. He remained in hospital till 03.09.1987

when he was discharged. So, as per Nanu‟s statement itself, he was

fully conscious from 26.08.1987 to 03.09.1987, yet his statement was

not recorded by the Investigating Officer. These circumstances lend

credence to the arguments advanced on the part of the defence that

Laxmi Narain and Nanu had opportunity to confer with Rajender and

others before having their statements recorded. It is an admitted

position that the statements of Nanu and Laxmi Narain were recorded

after their discharge from hospital. An important circumstance which

has not at all been noticed by the trial court is that in the course of his

cross-examination, Nanu (PW-3) had stated to the court that he did not

know the names of the accused before the date of occurrence and that

Rajender told him the names of the accused persons. He, however,

knew them by their faces. He also stated that he did not identify the

accused in any parade before the Magistrate. This fact in itself

indicates that prior to making the statement (Exhibit PW-3/DA), Nanu

had conferred with Rajender (PW-1). This is further established by the

fact that in the statement (Exhibit PW-3/DA), the names of Rajesh and

Ram Singh figure. It can be recalled that prior to the incident, Nanu

did not know the names of the accused. Shortly after the incident,

Nanu was taken to hospital and he remained unconscious till the next

day in the hospital. He was discharged on 03.09.1987 and after his

discharge the said statement (Exhibit PW-3/DA) was recorded wherein

the names of the accused are mentioned. In his statement before court,

he has clearly indicated that the names of the accused persons were

supplied to him by Rajender. The obvious inference is that the

statement (Exhibit PW-3/DA) was made by Nanu after conferring with

Rajender. To make matters worse for the prosecution, PW-3 (Nanu)

has also stated that he did not identify the accused in any parade before

the Magistrate. So, here, we have a situation where an injured person is

giving names of the accused whom he did not know at the time of

occurrence and who were not subjected to any identification before the

Magistrate. This is yet another circumstance which goes towards

demolishing the prosecution case against the present appellants.

22. Fourthly, Rajender (PW-1), who is the architect of the entire

prosecution case has been contradicted by the other prosecution

witnesses. In his testimony PW-1(Rajender) stated that he and Nanu‟s

wife took the injured to hospital in two rickshaws. He further stated in

cross-examination that he had not told the police that the injured were

removed to the hospital in auto rickshaws. He stated that he had helped

the injured in boarding the auto rickshaw, but he admitted that his

clothes did not get blood stains. Insofar as the statement that Nanu‟s

wife also went to the hospital with them is concerned, the same is

contradicted by PW-15 (SI Jeevan Lal) when he, in his cross-

examination, stated that he did not meet any lady in the hospital.

Furthermore, in his testimony before court, Rajender Kumar (PW-1)

has not stated that when the incident was taking place, he or Premwati

had attempted to intervene and save the persons who were being

attacked from the assailants. But, PW-5 (Premwati) stated that she

tried to intervene and catch hold of Ram Singh but he pushed her away.

In cross-examination, she further stated that Rajender was trying to

save Parveen, Laxmi Narain and Nanu. So, while PW-1 (Rajender

Kumar) does not mention the presence of Premwati (PW-5) nor of any

attempt on his part to save the persons who were being attacked,

Premwati, who is stated to be an eye witness, states that not only did

she see Rajender (PW-1) trying to save Parveen, Laxmi Narain and

Nanu, but that she also intervened and tried to catch hold of the

accused (Ram Singh) who pushed her away. It is obvious that the two

witnesses have contradicted themselves. This contradiction cannot be

brushed aside as a minor contradiction inasmuch as it relates to the very

incident itself. A person who intervenes in an incident and tries to save

persons from assailants would not forget to mention it. An eye witness

who sees such an incident would also not forget to mention the

presence of another person, such as Premwati who not only allegedly

intervened in the incident, but also tried to catch hold of Ram Singh,

the so-called main assailant. The only conclusion that can be derived

from this is that a conviction cannot be based on the testimony of these

two witnesses.

23. Fifthly, Premwati (PW-5) stated in her examination-in-chief

that she heard a noise when she was going to bed and then she came

out. She stated that Parveen suffered stab injuries and so did Laxmi

Narain and Nanu. But she also stated:-

"I do not know how they suffered injuries"

She also stated:-

"Ram Singh stabbed, but I cannot tell whom he had stabbed."

In cross-examination, she stated that:-

"The occurrence took place around 11 P.M. 10-15 persons were present in the Gali when I came out. The injured were lying on the cots."

These statements are clearly not that of an eye witness. It is clear that

even as per her on testimony, she came out of her house after she heard

a noise. She is unable to tell whom Ram Singh stabbed. She is unable

to indicate how Parveen, Laxmi Narain and Nanu received injuries. In

fact, she states that when she came out of her house, there were already

10-15 persons present in the gali and the injured were lying on the cots.

She has further stated that when she had seen the injured lying on the

cots, she got nervous and went inside the house. So, as per her own

testimony, on hearing a noise, she came out of her house, 10-15

unnamed persons were already standing in the gali, the injured were

lying on the cots and on seeing the injured so lying on the cots, she got

nervous and went inside her house. It is obvious that she is not an eye

witness of the alleged incident.

24. Sixthly, the testimonies of PW-2 and PW-3 are nothing but

parroted versions of the testimony of Rajender Kumar (PW-1) whom

we have already discarded as an untrustworthy witness.

25. For all the above reasons, we are of the view that the trial

court has erred in convicting the present appellants under Sections

302/34 and 307/34 IPC with regard to the alleged murder of Parveen

and attempted murder on Laxmi Narain and Nanu. At the outset, we

had pointed out that by virtue of the post mortem report itself, this was

not a case of murder and we were only left to examine as to whether a

case of attempt to murder or some other lesser offence has been made

out. After examining the testimonies and other evidence on record, we

are of the clear view that the conviction of the appellants cannot be

sustained either under Sections 302/34 or 307/34 IPC or any other

lesser offence.

26. Consequently, we allow the appeals and acquit the

appellants. Their bail bonds are cancelled and the sureties stand

discharged.

BADAR DURREZ AHMED, J

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