Rajinder @ Lala vs State
2009 Latest Caselaw 2439 Del

*            HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment reserved on : 27.05.2009
                              Judgment delivered on: 03.07.2009

+                         Crl. Appeal No.283/2001


RAJINDER @ LALA                           ..... Appellant
               Through : Mr.Lekhraj Rehalir, Advocate

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


                       Crl. Appeal No.670/2001

BAIJ NATH                                     ..... Appellant
                   Through : Mr.Lekhraj Rehalir, Advocate

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


                       Crl. Appeal No.932/2001

RAMESH @ VINOD MANGAL                          ..... Appellant
              Through :          Ms.Meera Kaura Patel, Advocate
                                 Mr.Sulaiman Khan, Advocate

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


CORAM :-
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?

     (3) Whether the judgment should be reported
         in the Digest ?



Crl.A.No.283/2001, 670/2001 & 932/2001                     Page 1 of 35
 PRADEEP NANDRAJOG, J.

1. Vide impugned judgment and order dated 22.03.2001, the

appellants, Baijnath @ Baiju, Ramesh @ Ramesh @ Vinod and

Rajinder @ Lala have been convicted for the offence of having

murdered Roshan Lal @ Chian (herein after referred to as the

"Deceased"), for which offence they have been sentenced to

undergo imprisonment for life and to pay a fine of Rs.2000/- each; in

default to undergo simple imprisonment for two months.

2. In a nutshell, case of the prosecution was that in the night of

24.10.1997 the deceased along with one Hemraj PW-1 and Kamal

PW-2, were going to a market for purchasing pigs. On their way to

the market, the aforesaid persons were met by the appellants who

were gambling at that time; that the deceased also joined in the

gambling while Hemraj and Kamal stood outside the slum-dwelling

where the deceased and the appellants were gambling. After having

won the entire stake money, the deceased was leaving the slum-

dwelling in question when the appellants asked him to lend some

money to them. On refusal by the deceased to do so, the appellants

indiscriminately stabbed him and fled from the place of occurrence

after causing the death of the deceased. Hemraj PW-1 and Kamal

PW-2, had witnessed the incident.

3. Needless to state, the case of the prosecution hinged upon

the veracity and credibility of the testimony of Hemraj PW-1 and

Kamal PW-2.

4. Machinery of law was put into motion when at around 11.21

P.M. on 24.10.1997, a PCR Form Ex.PW-9/A, was filled by HC Verina

PW-9, noting therein that a person named G.Lal has informed that a

person has been stabbed near A-Block, Sangam Park, Kanjar

Jhuggis. Few minutes thereafter, second information regarding the

incident was received by HC Usha PW-14, pursuant whereto she

filled PCR Form Ex.PW-14/A, noting therein that one person had

been murdered near Railway Crossing, Beriwala Bagh, Sangam

Park. HC Verina and HC Usha transmitted the aforesaid information

to Police Post Sangam Park where Const.Satpal PW-6, recorded DD

Entries Ex.PW-6/A and Ex.PW-6/B, at 11.32 P.M. and 11.35 P.M.

respectively.

5. On receiving the information about the incident, Inspector

Vipin Kumar PW-16, accompanied by SI Manvinder Singh PW-4,

proceeded to the spot. Simultaneously, other police officers namely

Const.Jaipal Singh PW-5, and HC Bhagat Ram PW-12, also reached

the spot. On reaching the spot, the aforesaid police officers saw the

deceased lying dead on the ground. Two persons namely, Hemraj

PW-1 and Kamal PW-2, who claimed to have witnessed the incident

of murder of the deceased were also found present at the spot.

Inspector Vipin Kumar PW-16, recorded the statement Ex.PW-1/A of

Hemraj and made an endorsement Ex.PW-4/A thereon, and at

around 1.10 A.M. forwarded the same through SI Manvinder Singh

PW-4, for registration of an FIR. SI Manvinder Singh took Ex.PW-4/A

to the police station and handed over the same to HC Garib Ram

PW-11, who recorded the FIR No.698/97, Ex.PW-11/B, at 1.20 A.M.

on 25.10.1997.

6. In his statement Ex.PW-1/A, Hemraj stated that he resides

with his family in a house bearing Municipal No.16, Kharid Basti,

Gurmandi, Delhi and is engaged in the business of selling pork.

Tonight, at around 10.30 P.M., he along with the deceased, who was

his brother by relation, and Kamal had gone to Sangam Park for

purchasing pigs. When they reached near a shop of scrap dealer

situated at Kanjar Basti slum-dwellings, the appellants who were

quite familiar to him stopped them and demanded money from the

deceased. Upon the refusal of the deceased to lend money to the

appellants, they forced him to do so. Thereafter the appellants

started demanding the chain, ring and bracelet from the deceased

and when the deceased refused to do so, the appellants took out

their knives and exhorted saying that „they would kill him‟.

Appellants Ramesh and Rajinder caught hold of the deceased while

appellant Baijnath inflicted knife blows on the various parts of his

body. Thereafter the appellants ran towards him and Kamal upon

which they fled from the spot in order to save their lives and

reached Gurmandi where they raised an alarm that the deceased

has been murdered by the appellants. On reaching Gurmandi, he

along with one Kuldip, Jaswinder, Ashok and some other persons

went to the spot where they found that the deceased was lying

dead on the ground and that the appellants had fled from there. In

the meantime, the police was telephonically informed about the

said incident and reached the spot. The appellants who had fled

from the spot have caused the death of the deceased, who was his

brother by relation.

7. Soon after the registration of the FIR, Inspector Vipin Kumar

PW-16, recorded a supplementary statement Ex.PW-1/E under

Section 161 Cr.P.C. of Hemraj PW-1, wherein Hemraj ostensibly

gave further details of the incident. Hemraj stated that the

deceased gambled with the appellants on the day of the incident

just prior to being attacked by them.

8. Kamal PW-2, also made a statement Ex.PW-2/DA under

Section 161 Cr.P.C. in complete sync with the statements Ex.PW-1/A

and Ex.PW-1/E of Hemraj and also indicted the appellants as the

assailants of the deceased.

9. At the spot, Inspector Vipin Kumar PW-16, prepared the rough

site plan Ex.PW-16/E of the place of offence; recording therein, at

points „A‟ and „B‟, the spots where the body of the deceased was

found and wherefrom Hemraj and Kamal witnessed the incident,

respectively. On thorough search of the body of the deceased, three

gold ornaments namely, a chain, ring and bracelet and cash in sum

of Rs.4,701/- was recovered were recovered and the same were

seized vide memo Ex.PW-1/C. Inspector Vipin Kumar lifted the

portion of the earth which was found to be stained with blood and

the earth control from the place of occurrence and seized the same

vide memo Ex.PW-1/C. Sat Pal PW-3, a photographer, reached the

spot, on being summoned. 11 photographs, negatives whereof are

Ex.PW-3/5 to Ex.PW-3/15, were taken. However, out of said 11

photographs, only 4 photographs Ex.PW-3/1 to Ex.PW-3/4 could be

developed.

10. Since the deceased was found dead, his body was sent to the

mortuary of Civil Hospital, Sabzi Mandi, where Dr.K.L. Sharma PW-7,

conducted the post-mortem at about 12.00 noon on 25.10.1997 and

gave his report Ex.PW-7/A, which records the following external

ante-mortem injuries on the person of the deceased:-

"1) Abrasion 4 x 3 cm over right angle of right eye.

      2)     Abrasion over right angle of mouth 2 x 2 cm.

      3)    Partial skin cut transverse, incised wound 7 cm
      long over right front base of neck.

      4)    Incised penetrating wound 4.5 x 2 cm vertically

oblique over right upper front of chest, right margin being 10 cm obliquely above right nipple.

5) Incised penetrating wound 3.5 cm x 2 cm over upper front of left chest, right angle being 4 cm above left nipple.

6) Incised penetrating wound, intestinal loops coming out of wound, with stool matter, 3 x 2 cm over right iliac fossa, oblique, right margin being 6 cm above anterior superior iliac spine.

7) 3 partial skin cuts each of 1 x 1 cm over right axilliary fold, one below other.

8) Incised penetrating wound over 3.5 x 2 cm over right upper back below inferior border of scapula. (Muscle deep only).

9) Incised penetrating wound upper margin shelved, lower margin inverted. Transverse 3.5 x 2 cm over back of abdomen in vertebral line. Muscle deep only).

10) 2 incised penetrating wound each of 4.5 x 2 cm and 3 x 2 cm, transverse in the midline of the back of middle part of abdomen."

10. The doctor opined that the cause of the death of the deceased

was asphyxia and pneumothorax as a result of external injuries nos.

(4) and (5). That the external injuries nos. (4), (5) and (6) were

collectively sufficient to cause death in the ordinary course of

nature. That the injuries nos. (1) and (2) were caused during a

scuffle whereas all the remaining injuries were caused by a sharp,

penetrating, straight and flat weapon like knife or dagger. That the

possibility of the use of two weapons for causing said injuries on the

person of the deceased cannot be ruled out.

11. After the post-mortem, the doctor handed over the clothes

and blood sample of the deceased on a gauze to Const.Jaipal Singh

PW-5, who in turn handed over the same to Inspector Vipin Kumar

PW-16, as recorded in the memo Ex.PW-5/A.

12. Since the two eye-witnesses; namely Hemraj PW-1 and Kamal

PW-2, had indicted the appellants of having murdered the

deceased, the police set out to apprehend them. The appellants

surrendered before the court of Metropolitan Magistrate on

28.10.1997 and were arrested by the police at about 3.30 P.M. on

the same day as recorded in the arrest memos Ex.PW-16/F to

Ex.PW-16/H.

13. The appellants were interrogated and their confessional

statements were recorded. We need not note the contents of the

confessional statements inasmuch as the same are completely

inadmissible as they admit of guilt. We note that no recovery was

affected nor was a fact discovered by the police pursuant to the

said statements made by the appellants.

14. On 07.11.1997 ASI Manohar Lal PW-10, a draftsman, was

taken to the place of occurrence where at the instance of Inspector

Vipin Kumar PW-16, he prepared the site plan to scale Ex.PW10/A;

recording therein, points „A‟ to „D‟, the spots where the appellants

attacked the deceased, the deceased fell on the ground and the

blood was found, the spots wherefrom Hemraj and Kamal witnessed

the incident, the spots where the electric pole and lighted electric

bulb were found, respectively.

15. The seized materials viz; the blood sample and clothes of the

deceased, blood stained earth and earth control lifted from the

place of occurrence were sent to a serologist for serological

examination. Vide FSL reports Ex.PX and Ex.PY it was opined that

the blood group of the deceased was „B‟; that the earth lifted from

the place of occurrence was stained with human blood of „B‟ group

and that human blood of „B‟ group was found on the clothes of the

deceased.

16. Needless to state, the appellants were sent for trial. Charges

were framed against them for having committed offences

punishable under Section 302 read with Section 34 IPC.

17. At the trial, HC Verina PW-9 and HC Usha PW-14, deposed that

the recording pertaining to information of the incident in the PCR

forms Ex.PW-9/A and Ex.PW-14/A, were made by them. Const.Satpal

PW-6, deposed that DD Entries Ex.PW-6/A and Ex.PW-6/B were

recorded by him. Const.Jaipal Singh PW-5, deposed having handed

over the clothes and blood sample of the deceased to Inspector

Vipin Kumar vide memo Ex.PW-5/A. ASI Manohar Lal PW-10,

deposed having prepared the site plan to scale on 07.11.1997 at

the instance of Inspector Vipin Kumar. Sat Pal PW-3, deposed that

11 photographs were taken by him out of which only four

photographs could be developed. Const Shiv Kumar PW-13, deposed

having delivered copies of the FIR to the Ilaqa Magistrate and the

senior police officials. Dr.K.L. Sharma PW-7, deposed having

prepared the post-mortem report Ex.PW-7/A.

18. Eschewing the reference to the testimonies of few formal

police witnesses who deposed to the receipt of various articles in

Malkhana and further movement thereof to FSL, we note the

testimonies of the material witnesses of the prosecution.

19. Hemraj PW-1, deposed that on 24.10.1997 at around 9.30

P.M. he along with Kamal was standing outside his house situated at

Gurmandi when the deceased asked him and Kamal to accompany

him to Sangam Park for purchasing pigs. On reaching the slum-

dwellings situated at Sangam Park, they saw that the appellants

were gambling in a slum-dwelling pursuant whereto the deceased

also started to gamble with the appellants and won the entire stake

money in thirty minutes. Thereafter appellant Baijnath asked the

deceased to lend him some money which was refused by the

deceased whereupon the other two appellants also started

demanding money from him. When the deceased refused to lend

money to the appellants despite their repeated insistence, they

started demanding the gold chain and bracelet worn by the

deceased. Upon the refusal of the deceased to do so, the appellants

took out their knives and gave an exhortation that they would kill

him (Saale tere ko upar pahucha dehenge‟). Thereafter the

appellants inflicted various knife blows on the person of the

deceased and also gave threats to him and Kamal upon which they

got scared and fled from the place of occurrence. On reaching their

neighbourhood at Gurmandi, he and Kamal raised an alarm

pursuant to which a crowd gathered there and then they along with

some persons from the crowd namely Kuldip, Ashok and Jaswinder

went to the place of occurrence where they found that the deceased

was lying dead. Thereafter the police arrived at the spot and

conducted investigation. The seizure memos Ex.PW-1/B and Ex.PW-

1/C were prepared by the police in his presence. He identified the

dead body of the deceased at the mortuary as recorded in the

memo Ex.PW-1/D. n being cross-examined about the non-mention

of the fact that the deceased gambled with the appellants just prior

to being attacked by them in his statement Ex.PW-1/S, Hemraj

stated that 'since I was perturbed due to the incident, I made

another statement the next day explaining the circumstances.' On

being cross-examined about the manner of the assault of the

deceased by the appellants, Hemraj stated that 'I did not see where

Ramesh and Lala and Baij Nath hit the knife on which portion of the

body of the Chian......'

20. Kamal PW-2, also deposed on the same lines as Hemraj but

with the difference that he deposed that appellants Ramesh and

Rajinder caught hold of the deceased while appellant Baijnath

inflicted knife blows on his person. Rest of the deposition of the

witness is same as that of Hemraj.

21. Kuldip PW-8, deposed that on 24.10.1997 at around 11.00

P.M. he along with Jaswinder and Ashok was standing outside his

shop when he saw Hemraj and Kamal running and shouting that the

deceased has been stabbed by the appellants pursuant whereto a

crowd gathered there. He along with Hemraj, Kamal, Jaswinder and

Ashok and some other persons from the crowd proceeded to the

place of occurrence where they found that the deceased was lying

dead. After sometime, the police arrived at the spot and started

conducting the investigation. The search of the body of the

deceased resulted in recovery of three gold ornaments namely a

gold chain, ring and bracelet and a sum of Rs.4,701/- from his

possession. The seizure memos Ex.PW-1/B and Ex.PW-1/C were

prepared by the police in his presence.

22. In their examination under Section 313 Cr.P.C., the appellants

pleaded innocence and false implication. They stated that

witnesses Hemraj and Kamal are interested witnesses and have

deposed falsely at the instance of the police. That the investigation

conducted by the police is not fair and forthright. That the deceased

used to steal pigs in his lifetime and was killed by the owners of the

pigs.

23. In defence, appellant Baijnath examined Const.Vinod DW-1,

to establish that the police arrested him in connection with another

case and subjected him to torture in the custody due to which he

was forced to surrender before the court in the present case. The

witness produced one Kalandra Ex.DW-1/A and a DD Entry Ex.DW-

1/B, both of which record that appellant Baijnath was arrested on

25.10.1997 in connection with a case registered against him under

Sections 92, 93 and 97 of Delhi Police Act.

24. Believing the testimony of Hemraj PW-1 and Kamal PW-2, to

be creditworthy, the learned Trial Judge convicted the appellants.

25. At the hearing of the appeals, learned counsel for the

appellants advanced under-noted submissions:-

A. That appellants Rajinder and Ramesh were not

represented by any counsel during a considerable

period in the trial and therefore, it was incumbent upon

the learned Trial Judge to provide legal aid to said

appellants and to appoint a counsel for counsel for

conducting their defence. The learned Trial Judge failed

to do so and continued to conduct the trial in the

absence of any counsel for said appellants. During the

said period, material witnesses of the prosecution

including the alleged eye-witness Kamal were examined

and appellants Ramesh and Rajinder did not get an

opportunity to cross-examine the said witnesses.

According to the counsel, the right to free legal services

is an essential ingredient of „reasonable, fair and just‟

procedure for a person accused of an offence and is

fundamental right of every accused person who is

unable to engage a lawyer under Article 21 of

Constitution of India. Counsel argued that the failure of

Trial Judge to provide legal assistance to appellants

Rajinder and Ramesh is clearly a violation of the

fundamental right of said appellants and the trial must

accordingly be vitiated on account of a fatal

constitutional infirmity, and the conviction and sentence

recorded against the said appellants must be set aside.

In support of the said argument, learned counsel placed

reliance upon the decisions of Supreme Court reported

as Hussainara Khatoon v State of Bihar (1980) 1 SCC

98, Suk Das v Union Territory of Arunachal Pradesh AIR

1986 SC 90 and Khatri v State of Bihar AIR 1981 SC

928, decision of Bombay High Court reported as

Hiraman v State of Maharashtra 2000 Cri LJ 1485 and

decision of this Court reported as and decision of this

Court reported as State (Delhi Admn) v Balroop Singh

49 (1993) DLT 644 (DB).

B. The second submission advanced was predicated upon

the timing of dispatch of the rukka from the place of

occurrence to the police station for registration of an

FIR. Learned counsel for the appellant first drew

attention of the court to the PCR form Ex.PW-9/A, to

contend that the first information about the incident

was received by the police at 11.21 P.M. on 24.10.1997

and therefore, it could logically be assumed that the

police would have reached the spot within few minutes

of receiving the said information. Counsel submitted

that as per the case of the prosecution the alleged eye-

witnesses Hemraj and Kamal were found present when

the police arrived at the spot and therefore, it would not

have taken much time for the police to record their

statements and prepare rukka on the basis of the said

statement. Therefore, as per the counsel, it can

reasonably be taken that the police would have

prepared the rukka by 00.20 A.M. on 25.10.1997. In the

backdrop of said contentions, learned counsel then

drew attention of the court to the recording contained

in the rukka Ex.PW-4/A that the same was dispatched

on 01.10 A.M. on 25.10.1997. Culminating the

argument, the counsel contended that delay of nearly 1

hour and 40 minutes in dispatching the rukka shows

that there was a delay in recording the statement of

Hemraj PW-1, which as per the counsel leads to a very

strong inference that the said witness was a procured

witness and falsely deposed at the instance of the

police.

C. The third submission advanced pertained to genesis of

the occurrence. Counsel submitted that case projected

by the prosecution was that the incident in question

occurred when the deceased along with the alleged

eye-witnesses Hemraj and Kamal were going to a

market situated at Sangam Park for purchasing pigs. In

said regards, counsel drew attention of the court to the

statement of Hemraj in his cross-examination that 'it is

correct that in Gurmandi, there is business of sale and

purchase of the pigs'. According to the counsel, when

the deceased could have purchased pigs from

Gurmandi itself, where was the occasion for the

deceased and the two so-called eye-witnesses to go

from Gurmandi to Sangam Park for purchasing pigs.

Counsel therefore argued that the genesis of

occurrence set up by the prosecution fails which in turn

casts a serious doubt on the truthfulness of the case of

the prosecution.

D. The fourth submission advanced was predicated upon

the veracity of the evidence of Hemraj PW-1. Counsel

argued that the omission of Hemraj to mention about

the fact that the deceased gambled with the appellants

just prior to being attacked by them in his statement

Ex.PW-1/A, which statement formed the basis of the

registration in the present case, raises a big question

mark on the truthfulness of the said witness.

E. The fifth submission advanced by the learned counsel

was again predicated upon the evidence of Hemraj PW-

1. Counsel pointed out that Hemraj in his statement

Ex.PW-1/A stated that appellants Ramesh and Rajinder

caught hold of the deceased while appellant Baijnath

stabbed him whereas in his testimony before the court

he deposed that all the appellants stabbed the

deceased and that the said witness did not furnish an

adequate explanation for said discrepancy when

confronted with the necessary portion of the statement

Ex.PW-1/A in his cross-examination. Counsel argued

that the said material contradiction when coupled with

inability of the said witness to explain the manner of

assault on the deceased by the appellants establishes

that Hemraj did not witness the appellants attacking

the deceased.

F. The sixth submission advanced by the learned counsel

for the appellants was that though the locality where

the incident occurred was a thickly populated one yet

no person from the locality was examined by the

prosecution, which circumstance lends credence to the

defence of the appellants that the police contrived

evidence against the appellants and falsely implicated

them. In support of the said contention, counsel placed

reliance upon the decisions of Supreme Court reported

as State of UP v Madan Mohan AIR 1989 SC 1519, State

of Haryana v Ram Singh 2001 Cri LJ 987, Megha Singh v

State of Haryanai (1996) 11 SCC 709 and State of

Punjab v Sarup Singh 1998 SCC (Cri) 711.

G. The seventh submission advanced by the learned

counsel for the appellants was predicated upon the

conduct of the witnesses Hemraj and Kamal after

having witnessed the incident. Counsel argued that the

conduct of the so-called eye-witnesses in running from

the place of occurrence without raising an alarm

particularly when the locality where the incident

occurred was a thickly populated one is most unnatural

which in turn seriously dents the credibility of the said

witnesses.

H. The last submission advanced by the learned counsel

was predicated upon the motive of the appellants for

murdering the deceased. Counsel contended that the

case projected by the prosecution was that the

appellants murdered the deceased when the deceased

refused to lend money to them. Counsel pointed out

that a sum of Rs.4,701/- was recovered from the

possession of the deceased when the police conducted

the personal search of his body. Counsel argued that

had the appellants murdered the deceased over money

as alleged by the prosecution, then they would have

surely stolen the money possessed by the deceased

before fleeing from the place of occurrence and

therefore, said fallacy in the theory of motive of the

appellants for committing the crime is fatal to the case

of the prosecution.

26. Pertaining to the first submission advanced by the learned

counsel for the appellants, we first proceed to take a bird‟s eye

view of the record of the trial court.

27. A perusal of the trial court record shows that there are 6

Vakalatnamas on record. First Vakalatnama dated 31.03.1998 was

executed by appellants Rajinder and Ramesh in favour of

R.D.Dubey, and A.Ahmad, Advocates. Second Vakalatnama dated

02.05.1998 is executed by appellant Baijnath in favour of Rajinder

Pershad, Advocate. Third Vakalatnama dated 30.06.1998 is

executed by appellant Ramesh in favour of S.P. Sharma, Advocate.

Fourth Vakalatnama dated 10.12.1998 is executed by appellant

Rajinder in favour of Kamlesh Sambharwal and Rakesh Kumar,

Advocates. Fifth Vakalatnama dated 27.11.1998 is executed by

appellant Baijnath in favour of S.C.Garg, Advocate. Sixth

Vakalatnama dated 19.03.99 is executed by appellants Ramesh and

Rajinder in favour of Raj K. Bahri, Advocate.

28. It be noted here that S.C.Garg and R.K.Bahri, Advocates,

appear to be associates as they were operating from the same

chamber which fact is borne out from the perusal of the respective

Vakalatnamas executed in their favour.

29. The present case was listed for the first time in the court of

Additional Sessions Judge on 17.03.1998 on which date it was

adjourned to 31.03.1998. On 31.03.1998, R.K. Bahri, Advocate

appeared for appellant Baijnath and R.D.Dube, Advocate appeared

for appellants Rajinder and Ramesh. On the said date, charges were

framed against the appellants and the case was adjourned to

21.04.1998 for prosecution evidence.

30. Thereafter a perusal of the order sheets of the trial court

shows that there was a tacit agreement between R.K.Bahri,

Advocate and appellants Rajinder and Ramesh in pursuance of

which R.K.Bahri, Advocate started to appear on behalf of all the

three appellants. On 27.08.1998, R.K.Bahri, Advocate cross-

examined Hemraj PW-1, on behalf of all the appellants.

31. However on next date i.e. 13.10.1998, appellants Rajinder

and Ramesh had a fall-out with R.K.Bahri, Advocate and objected to

his conducting their defence. In such circumstances, R.K.Bahri,

Advocate cross-examined Kamal PW-2, only on behalf of appellant

Baijnath. Noting that R.D.Dubey, Advocate had filed his

Vakalatnama on behalf of appellant Rajinder and Ramesh on

31.03.1998 and that he did not turn up to cross-examine the

witness, the trial court discharged witness Kamal. Thus, Kamal PW-

2, was not subjected to any cross-examination on behalf of

appellants Rajinder and Ramesh.

32. As already noted herein above, on the next date i.e.

10.12.1998, Kamlesh Sambharwal and Rakesh Kumar filed their

Vakalatnama on behalf of appellant Rajinder. However, no witness

of the prosecution could be examined on the said date as an

adjournment was sought by counsel for the appellants.

33. Thereafter on the next three dates viz; 13.01.99, 14.01.99

and 19.02.99, no counsel appeared for appellants Rajinder and

Ramesh and the witnesses namely Satpal PW-3 (photographer), SI

Manvinder Singh PW-4 (who stated to have taken the rukka from

the place of occurrence to the police station), Const.Jai Pal (who

stated to have handed over the blood sample and clothes of the

deceased to the Investigating Officer) and Const.Sat Pal (who

stated to have recorded DD Entries Ex.PW-6/A and Ex.PW-6/B) were

cross-examined by R.K.Bahri, Advocate on behalf of appellant

Baijnath. The aforesaid witnesses were not subjected to any cross-

examination on behalf of the other two appellants.

34. As already noted herein above, on the next date i.e. 19.03.99,

R.K.Bahri, Advocate entered appearance on behalf of appellants

Rajinder and Ramesh.

35. The submission of learned counsel was that it was incumbent

upon the trial court to provide legal aid to appellants Rajinder and

Ramesh when they raised an objection to conduct of their defence

by R.K.Bahri, Advocate.

36. There is no dispute with the proposition that an accused is

entitled to get legal aid when he is not represented by any counsel

on account of reasons such as poverty, indigence or

incommunicado situation etc.

37. The question which needs consideration is whether appellants

Rajinder and Ramesh were unrepresented on the dates 13.10.1998,

13.01.99, 14.01.99 and 19.02.99.

38. From the facts noted herein above, the position which

emerges is that on 13.10.1998 appellant Rajinder was represented

by R.D.Dubey and A.Ahmad, Advocates whereas appellant Ramesh

was represented by S.P.Sharma, Advocate. It is most relevant to

note on that appellant Rajinder engaged Ms.Kamlesh Sambharwal,

Advocate on 10.12.1998 i.e., after raising the objection to the

conduct of his defence by R.K.Bahri, Advocate, therefore where was

the occasion for the trial court to provide legal aid to said appellant

after 13.10.1998. Insofar as appellant Ramesh is concerned, a

perusal of the trial court record shows that S.P.Sharma filed two

applications dated 03/07.06.1998 seeking bail for appellant

Ramesh, which applications was dismissed by the trial court on

04/08.06.1998 after hearing the arguments advanced by the said

counsel. Therefore, appellants Rajinder and Ramesh were

represented by a counsel on the dates in question.

39. It is true that counsel for Rajinder and Ramesh did not appear

in court on various dates as noted above but it is equally true that

in between said dates counsel for Ramesh filed an application

seeking bail. It appears to be a case where the accused were

adopting a strategy of contrivance to derail the trial by repeatedly

changing counsel.

40. But the moot question is: whether a prejudice has been

caused to Rajinder and Ramesh.

41. The defence taken by all the appellants was identical.

R.K.Bahri, Advocate cross-examined the witnesses on behalf of

appellant Baijnath. He i.e. R.K.Bahri was later on engaged as

counsel by Rajinder and Ramesh. Had R.K.Bahri, Advocate felt that

any prejudice has been caused to the said appellants on account of

denial of opportunity of cross-examination of the witnesses in

question, he could have filed an application under Section 311

Cr.P.C. for recall of the said witnesses. He did not do so. Rajinder

and Ramesh did not instruct him to do so.

42. In view of above discussion, we find no force in the first

submission advanced by the learned counsel for the appellants.

43. The submission pertaining to the delay in dispatch of rukka

from the place of occurrence needs to be dealt with reference to

the testimony of Inspector Vipin Kumar PW-16, the scribe of rukka

Ex.PW-4/A.

44. Inspector Vipin Kumar PW-16, deposed that on 24.10.1997 he

was present at police station Model Town when he received two

wireless information about the incident at 11.32 and 11.35 P.M.

respectively. Inspector Vipin Kumar would have taken at least 25

minutes to reach the spot after the receipt of the information of the

incident. A crowd was present at the spot which fact is evident from

the testimony of witnesses Hemraj, Kamal and Kuldip, therefore

Inspector Vipin Kumar would have spent sometime in controlling

the crowd, making enquiries from the persons present in the crowd

and in ascertaining that witnesses Hemraj and Kamal have

witnessed the incident and thereafter he would have elicited oral

information about the incident from the said witnesses. Having

elicited oral information from the said person, Inspector Vipin

Kumar would have proceeded to pen the statement of Hemraj and

thereafter would have prepared the rukka on the basis of the said

statement.

45. Considering the afore-noted facts the time gap of 1 hour 40

minutes between the receipt of first information about the incident

and dispatch of rukka is most reasonable, in any case not

unreasonable.

46. Even otherwise, it is settled law that delay of few hours by

itself in recording the statement of a witness does not amount to

serious infirmity, unless there is material to suggest that

investigating agency had deliberately delayed the recording of the

statement in order to afford an opportunity to the maker to set up a

case of his own choice. Further, Investigating Officer has to be

specifically asked as to the reasons for the delayed examination

where the accused raises a plea that there was unusual delay in

recording the statement of the witness. (See the decisions of

Supreme Court reported as Bodhraj v State of J & K AIR 2002 SC

3164, Rambir Singh v State of Punjab (1973) 2 SCC 444 and State

of UP V Satish 2005 Cri LJ 1428).

47. In the instant case, neither any question was put nor was any

suggestion given to Inspector Vipin Kumar PW-16, in his cross-

examination pertaining to the delay in recording the statement of

Hemraj PW-1.

48. The third submission advanced by the learned counsel that

pigs were available for sale in Gurmandi itself is neither here nor

there for there could be several reasons such as quality, price of

the pigs etc for the deceased to purchase pigs from Sangam Park

instead of Gurmandi particularly when the distance between the

two places was very less.

49. The next question which needs consideration pertaining to

the fourth submission advanced by learned counsel is whether the

omission of Hemraj PW-1 to mention about the fact that the

deceased gambled with the appellants just prior to being attacked

by them is so fatal that renders the evidence of Hemraj unworthy of

any credence.

50. The First Information Report is a report relating to the

commission of an offence, given to the police and recorded by it

under Section 154 of the Code of Criminal Procedure, 1973.

Commenting on the object, value and use of First Information

Report, in the decision reported as Sheikh Hasib @ Tabarak v. The

State of Bihar AIR 1972 SC 283 a three-Judge Bench of this Court

had observed as under:

"The principal object of the first information report from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The first information report, we may point out, does not constitute substantive evidence though its importance as conveying the earliest information regarding the occurrence cannot be doubted. It can, however, only be used as a previous statement for the purpose of either corroborating its maker under Section 157 of the Indian Evidence Act or for contradicting him under Section 145 of that Act. It cannot be used for the purpose of corroborating or contradicting other witnesses."

51. Apart from the fact that lodging of information under Section

154 Cr.PC keeps the District Magistrate and the Superintendent of

Police informed of the occurrence and when recorded, is the basis of

the case set up by the informant and provides material to the police

to commence investigation, its fundamental object is that it acts as

a safeguard against embellishment, exaggeration and forgetfulness.

52. The effect of an omission in the FIR on the credibility of a

witness was considered by Supreme Court in the decision reported

as State of MP v Dhirendra Kumar AIR 1997 SC 3718. The facts of

the said case were that the accused who was a tenant in the house

where the deceased was residing was accused of murdering her.

The prosecution sought to establish the guilt of the respondent by

adducing evidence relating to the motive of the crime, eye-witness

to the occurrence, dying declaration and recovery of the revolver

from the custody of the respondent by which death had been

caused, which revolver had been stolen by the respondent, who was

a police constable, from the Police Malkhana in the night before the

date of the murder of the deceased. The trial court accepted all

these facets of the case of the prosecution whereas the High Court

disbelieved all. One of the witnesses Radhabai PW-1, deposed that

the deceased had made a dying declaration to her. One of the

contentions advanced before Supreme Court was that since there

was no mention about the dying declaration in the FIR, the evidence

of PW-1 regarding the dying declaration should be discarded. Noting

that the testimony of PW-1 was corroborated by the other evidence

on record, Supreme Court repelled the aforesaid contention in

following terms:-

"It was very emphatically contended by Shri Gambhir that as in the First Information Report (FIR) there is no mention about the dying declaration, we should discard the evidence of PWs. 1 and 2 regarding dying declaration, because of what has been pointed out by this Court in Ram Kumar v. State of Madhya Pradesh AIR (1975) SC 1024. We do not, however, agree with Shri Gambhir, for the reason that what was observed in Ram Kumar 's case, after noting the broad facts, was that material omission in the FIR would cast doubt on the veracity of the prosecution case, despite the general law being that statements made in the FIR can be used to corroborate or contradict its maker. This view owes its origin to the thinking that if there be material departure in the prosecution case as unfolded in the FIR, which would so if material facts not mentioned in the FIR are

deposed to by prosecution witnesses in the court, the same would cause dent to the edifice on which the prosecution case is built, as the substratum of the prosecution case then gets altered. It is apparent that prosecution cannot project two entirely different versions of a case. This is entirely different from thinking that some omission in the FIR would require disbelieving of the witnesses who depose about the fact not mentioned in the FIR. Evidence of witnesses has to be tested on its own strength or weakness. While doing so, if the fact deposed be a material part of prosecution case, about which, however, no mention was made in the FIR, the same would be borne in mind while deciding about the credibility of the evidence given by the witness in question.

We, therefore, do not agree with Shri Gambhir that Ram Kumar's case would require us to disbelieve the evidence of PWs. 1 and 2 regarding dying declaration of the deceased, only because the FIR has not mentioned about it. It is a settled law that FIRs are not taken as encyclopedia and omission of a fact therein, even if material, cannot by itself make the witness deposing about that fact unbelievable at that point.

PW. 1 was thus not a witness to have been disbelieved on the two aforesaid grounds. Her evidence finds corroboration, as already mentioned, from the findings of the autopsy surgeon. This apart, her evidence the respondent had killed Mumbai by firing has also received corroboration from the recovery of a revolver from the possession of the respondent, to which aspect we shall advert later, supplemented by ballistic expert's report that very revolver had been used is firing at Mumbai." (Emphasis supplied)

53. In the decision reported as State of Haryana v Jinder Singh

(1997) 4 SCC 180 the allegations against the accused persons were

that they had murdered the deceased. Case of the prosecution

against accused Baldev Singh was that when the deceased had

fallen down after being attacked by the other accused, he wrapped

the parna around the neck of the deceased and dragged him to

some distance. Holding that the said fact was not mentioned in the

FIR, the High Court rejected the evidence of the eye-witness and

acquitted the accused persons. Noting that the said fact was

contained in the inquest report which was a contemporaneous

document prepared soon after the registration of the FIR and that

said fact was also corroborated by medical evidence, Supreme

Court held that mere omission in the FIR is hardly of any

consequence and convicted the accused persons.

54. It is no longer res-integra that it is not the requirement of law

that every minute detail of the occurrence needs to be recorded in

the FIR. The FIR is not intended to be an encyclopedia of the

background scenario of the crime. (See the decisions of Supreme

Court reported as State of AP v Golconda Linga Swamy AIR 2004 SC

3967, Surjit Singh v State of Punjab AIR 1992 SC 1389 and Kirender

Sarkar v State of Assam 2009 (6) SCALE 589.)

55. From the afore-noted judicial pronouncements, the legal

principle which can be culled out is that omission of material facts

pertaining to the crime in the FIR is a relevant factor in judging the

veracity of the evidence of the maker of the FIR but by itself is not

sufficient to throw the evidence of the said witness. If the evidence

of said witness is otherwise found to be credible, the omission in

the FIR is of no consequence.

56. In the instant case, the explanation furnished by Hemraj PW-

1, that he omitted to state fact that the deceased gambled with the

appellants just prior to being attacked by them in his statement

Ex.PW-1/A because he was perturbed is completely justifiable

keeping in view the fact that he witnessed a ghastly incident of

gruesome murder of his relative.

57. Insofar as the submission relating to the contradiction

between the statement Ex.PW-1/A of Hemraj and his testimony

before the court regarding the manner of assault on the deceased

by the appellants is concerned, suffice would it be to state that

when an eye-witness is examined at length it is quite possible for

him to make some discrepancies. 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. 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. 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. (See the decision of this Court in Criminal Appeal

No.327/2007 titled as Akbar & Anr. v. State decided on 29.05.2009)

58. It is a general handicap attached to all eye-witnesses if they

fail to speak with precision their evidence is assailed as vague and

evasive, on the contrary if they speak of all the events very well

and correctly their evidence become vulnerable to be attacked as

tutored. Both the approaches are dogmatic and fraught with lack of

pragmatism. The testimony of a witness should be viewed from

broad angles. It should not be weighed in golden scales, but with

cogent standards. 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. Therefore, the submission relating to failure of Hemraj PW-

1, to explain the manner of assault on the deceased by the

appellants deserves to be rejected.

59. Pertaining to the submission that no person from the vicinity

of the place of occurrence was examined by the prosecution, it

would be most relevant to note the following observations of

Supreme Court in the decision reported as State of UP V Ganga

Ram & Ors AIR 2006 SC 20:-

"One of the grounds, on which the High Court, recorded acquittal of the accused was that the occurrence is stated to have taken place on a pucca road on which bullock-carts, buses and other vehicles also go. The time is also of 5.15 p.m. but no outsider or pedestrian or resident of the vicinity has been named in the FIR or in the statement of the witnesses but only P.W.2- Hemraj Page 1540 has been examined as an independent witness. This ground, taken by the High Court, is far- fetched and contrary to the testimony of eyewitnesses. This can be hardly a ground to disbelieve the otherwise creditworthy testimony, which inspired confidence. It is now well-settled principle of law that whom to cite as a witness and whom not is within the domain of the prosecution. It is also well settled principle that the prosecution evidence has to be weighed and not to be counted. It is just because any other pedestrian or resident of the vicinity has not been cited as witnesses will be no ground to throw away the otherwise reliable testimony of the eyewitnesses which is natural and inspires confidence. There is no evidence on record to show that there were other pedestrian or resident of the vicinity present at the relevant time, besides the prosecution witnesses. In our view, the aforesaid reason

by the High Court is based on conjectures and surmises and is perverse." (Emphasis supplied)

60. In this regards, it would be most relevant to note that the

decision of this Court in Criminal Appeal No.478/2008 titled Ramesh

Kumar v State decided on 06.02.2009, wherein a similar contention

was advanced by the counsel for the accused. After noting the ratio

laid down by Supreme Court in the decisions reported as Swaran

Singh v State of Punjab (2003) 1 SCC 240 and Ambika Prasad v

State (Delhi Admn) (2002) 2 SCC 646, this Court observed as

under:-

"The legal position which emerges from the afore-noted decision is that the factum of non-examination of public/independent witnesses is not fatal to the case of the prosecution in every case. It depends upon the additional factor whether the evidence led by the prosecution inspires confidence or not. If the evidence led by the prosecution is otherwise credible and trustworthy, the non-examination of independent/public witness is of no consequence."

61. Dealing with the decisions relied upon by the counsel for the

appellants, the facts in Madan Mohan‟s case (supra) were that the

evidence of eye-witnesses was rejected by Supreme Court on the

grounds that the presence of eye-witnesses at the place of

occurrence was not natural but doubtful; no explanation was

provided by the prosecution regarding injury on the person of the

accused; names of the eye-witnesses and some of the accused

were not mentioned in the dying declaration of the deceased;

prosecution version about occurrence was differing from version in

dying declaration; prosecution suppressed the genesis of the crime

and no independent witness from locality was examined.

62. The facts in Ram Singh‟s case (supra) were that Supreme

Court granted benefit of doubt to the accused persons on the

ground that no independent person was joined in the disclosures,

discoveries and arrests of the accused persons.

63. In Megha Singh's case (supra), recovery of pistol and live

cartridges from the possession of the accused was sought to be

proved by the prosecution through the evidence of two constables

who apprehended him. Taking into account that no independent

person was examined to prove the said recovery and that the

investigation was tainted inasmuch as same was conducted by the

very police officer who lodged the complaint, Supreme Court

acquitted the accused.

64. In Sarup Singh‟s case (supra), the case of the prosecution was

based on circumstantial evidence. Two circumstances were relied

upon by the prosecution viz; the deceased was last seen in the

company of the accused and that the articles belonging to the

deceased were recovered at the instance of the accused. The

evidence pertaining to recovery of incriminating articles was

rejected on the ground that the said articles were not recovered in

the presence of any independent person but in the presence of

maternal grandfather of the deceased. Holding that circumstance

of last seen alone is not sufficient to establish the guilt of the

accused, Supreme Court acquitted the accused.

65. Save and except Madan Mohan‟s case (supra) none of the

other decisions relied upon by the counsel have any application in

the present case as they pertain to joining of independent persons

at the time of recovery of the incriminating articles at the instance

of the accused and there being other circumstances which led the

court to doubt the credibility of the investigation. In so far as

Madan Mohan‟s case is concerned, the same is clearly

distinguishable for the reason the non-examination of the

independent witnesses was not the sole factor but one of the

factors in rejecting the evidence of the eye-witnesses.

66. In the decision reported as State of Karnataka v Yellappa

Reddy AIR 2000 SC 185 Supreme Court held that unless the

reaction demonstrated by an eye-witness is so improbable or so

inconceivable from any human being pitted in such a situation it is

unfair to dub his reaction as unnatural.

67. In the backdrop of afore-noted dictum, it needs to be judged

whether the conduct of the witnesses Hemraj and Kamal in running

from the place of occurrence without raising any alarm was

unnatural or not.

68. In the instant case, both Hemraj and Kamal have categorically

deposed that they ran away from the place of occurrence after

being threatened by the appellants. In such circumstances, can the

conduct of said witnesses in running away from the place of

occurrence to the safety of their neighborhood after being

threatened by the appellants who were armed with knives and had

already murdered the deceased in a gruesome manner particularly

when they shortly returned there along with other persons be

termed as so inconceivable from the conduct of any human being

pitted in such a situation? The answer to the said question is an

emphatic NO.

69. The last submission that recovery of Rs.4,701/- from the body

of the deceased demolishes the case of the prosecution in regard to

motive of the appellants for murdering the deceased is based on

surmises and conjectures. There is no evidence to show that

amount of money possessed by the deceased before his death. The

tenor of the evidence of the eye-witnesses Hemraj and Kamal

suggests that the appellants were angry at the deceased because

of his having won the entire stake money in the gambling and that

they were wanting to get back from the deceased the money which

was staked by them. It is quite possible that the appellants only

removed the sum of money which was staked by them from the

body of the deceased. It is equally possible that the appellants got

scared after committing murdering the deceased and did not

remove any money from the body of the deceased on account of

fear and hurriedness to flee from the place of occurrence.

70. Having dealt with the submissions advanced by the counsel,

the veracity of the evidence of the eye-witnesses Hemraj and

Kamal needs to be considered.

71. At the outset, the defence taken by the appellants in their

examination under Section 313 Cr.P.C. was that the witnesses

Hemraj and Kamal were „interested witnesses‟ and have falsely

implicated them. The term „interested witness‟ postulates that

witness in question have some direct interest in seeing that the

accused person is somehow or other gets convicted either because

he has some animus against the accused or for some other reason.

In the instant case, no suggestion was given to the said witnesses

on behalf of the appellants that they had animus against them. No

evidence otherwise was led by the appellants to show that they

were inimically disposed towards them. In such circumstances, the

witnesses Hemraj and Kamal had no reason to falsely implicate the

appellants.

72. The question of credibility and reliability of a witness primarily

has to be decided by referring to his testimony and by finding out

as to how the witness has fared in cross-examination and what

impression has been created in the mind of the court. In the instant

case, the evidence of witnesses Hemraj and Kamal could not be

shaken in the cross-examination. The witnesses corroborated each

other on all material aspects.

73. The evidence of Kuldip PW-8, that he had seen witnesses

Hemraj and Kamal running and raising an alarm that the deceased

has been murdered by the appellants on the date of the incident at

the time when he was present outside his shop situated at

Gurmandi corroborates the evidence of the said witnesses that they

kept on running from the place of occurrence till they reached their

neighborhood at Gurmandi and that they raised an alarm on

reaching there. The fact that dead body of the deceased was found

the place where as per the witnesses Hemraj and Kamal the

deceased was attacked by the appellants strongly establishes that

they had seen the appellants attacking the deceased for the reason

unless they had seen the same they could not have directed the

people to the place where the dead body of the deceased was

found. The evidence of the said witnesses that appellants stabbed

the deceased is duly corroborated from the post-mortem report

Ex.PW-7/A of the deceased. The factum of the recovery of three

gold ornaments from the body of the deceased corroborates the

evidence of the said witnesses that the appellants before attacking

the deceased were demanding gold ornaments worn by the

deceased.

74. The fact that FIR was registered in the present case soon after

the occurrence makes the possibility that the version stated in the

said FIR was fabricated too remote.

75. In view of above discussion, we have no hesitation in

sustaining the conviction of the appellants on the basis of the

evidence of witnesses Hemraj and Kamal, who in our opinion are

„reliable witnesses‟.

76. The appeals are accordingly dismissed.

77. The appellants are on bail. Since the appeals have been

dismissed, the bail bonds and surety bonds furnished by the

appellants are cancelled. The appellants are directed to surrender

within two weeks.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE July 03, 2009 rk