Naresh Yadav @ Naresh Kumar vs The State
2009 Latest Caselaw 2789 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Judgment reserved on: July 09, 2009

                                       Judgment delivered on : July 23, 2009


+      CRIMINAL APPEAL NO.2/1996


       NARESH YADAV @ NARESH KUMAR              ..... Appellant
                           Through: Mr. Anil Soni, Advocate

                   Versus

       THE STATE                                          ..... Respondent
                                       Through:     Mr. Sunil Sharma, APP

       CORAM:
       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       HON'BLE MR. JUSTICE AJIT BHARIHOKE


1.     Whether Reporters of local papers may be allowed to see
       the judgment? No
2.     To be referred to the Reporter or not ? No
3.     Whether the judgment should be reported in Digest ? No


AJIT BHARIHOKE, J.

1. This appeal is directed against the Judgment of the learned

Additional Sessions Judge in Sessions Case No.66/95, arising out of

FIR No.40/89, Police Station Malviya Nagar under Sections

302/324/201/34 IPC read with Section 27 of the Arms Act vide which he

convicted the appellant Naresh Yadav for the offences punishable

under Section 302 and 324 Indian Penal Code and the offence

punishable under Section 27 of the Arms Act and consequent order on

sentence.

2. Briefly put, case of the prosecution is that on 03.02.1989 the

marriage of one Sushma daughter of Bhagwan Dass was being

solemnised in Village Khirki. The marriage party reached Village Khirki

at about 5/5.30 PM. Appellant Naresh Yadav @ Naresh Kumar was one

of the members of the marriage party. While "varmala" ceremony was

being performed, some boys were dancing in front of the house of

Bhawan Dass. Appellant Naresh Yadav was present there and he was

seen teasing the girls present around the dancing boys and passing

remarks. This conduct of the appellant was objected to by some of the

villagers, including Shri Jai Chand, Shri Sultan Singh, Shri Jai Bhagwan

and Shri Ajay Kumar. The appellant was advised not to indulge in eve-

teasing and proceeded to the "pandal" to have his meal. This angered

the appellant who took out a knife, which he was carrying in his socks

and threatened the aforesaid persons in a fit of rage. He then opened

the knife and stabbed Ashok Kumar on his neck. Shri Jitender Kumar

who was standing just behind Ashok Kumar, on seeing Ashok Kumar

being assaulted by the appellant, shouted and challenged the accused

as to what he was doing. Appellant Naresh Yadav then pounced upon

Shri Jitender Kumar and gave a knife blow on his left side near the

armpit. On being stabbed with knife, Shri Jitender turned around when

another knife blow was given by the appellant on the back of his left

arm. Both Ashok Kumar and Jitender Kumar fell down at some distance

from each other. Shri Jai Chand, Shri Sultan Singh, Shri Ajay Kumar,

Shri Jai Bhagwan and Shri Prem Singh ran after the appellant who was

trying to escape. Shri Ajay Kumar almost got hold of the appellant

when he was given knife blow by the appellant on his left arm.

Thereafter, the appellant ran towards the "pandal" but he was over-

powered by the witnesses. While trying to escape, appellant Naresh

Yadav managed to throw the knife towards the "pandal". He was

brought out of "pandal" and was beaten by the people who had

collected there.

3. Shri Jitender Kumar succumbed to the injuries at the spot and

Shri Ashok Kumar was removed to hospital where he was declared

"brought dead" by the Doctor on duty. Shri Ajay Kumar went to get his

injuries attended to by a private Doctor and later on he was sent to the

hospital for medical examination.

4. On the receipt of information about the occurrence, Inspector

Banwari Lal reached at the spot along with SI Surjit Singh. He recorded

the statement of Shri Jai Chand, which he sent to the Police Station

with his endorsement, on the basis of said statement, formal FIR was

recorded.

5. During the course of investigation, the Investigating Officer lifted

blood stained earth and sample earth from the place of occurrence

which was kept in sealed bottles. He also prepared the site plan.

Injured Ajay Kumar, who, after getting his aid had returned to the spot,

was sent to AIIMS for medical examination. The scene of occurrence

was got photographed. Blood stained shirt of Ajay Kumar was taken

into possession. Appellant Naresh Yadav was formally arrested and his

personal search was conducted. There were blood stains on the

clothes of the appellant which were taken into possession after

converting into a sealed parcel. Investigating Officer made search for

recovery of knife used by the appellant but, it could not be traced. On

04.02.1989, Inspector Banwari Lal drew the inquest proceedings with

regard to the death of Shri Ashok Kumar and Shri Jitender Kumar and

got the post-mortem conducted on their dead bodies.

6. On 05.02.1989, during interrogation accused Naresh Yadav made

a disclosure statement Ex. PW30/A which led to the recovery of the

weapon of offence i.e. a knife from the possession of accused Sat Pal @

Sansad Pal. It is alleged that on the pointing out of accused Sat Pal,

the knife was recovered from the latrine of the house of Shri Bhagwan

Dass of Village Khirki. Sketch of the knife was prepared and it was

converted into a sealed pullanda and taken into possession.

7. The clothes worn by both the deceased were converted into

sealed parcel by the Doctor who conducted post-mortem and those

parcel was handed over to the Police. On the request of the Police,

sample blood of the injured Ajay Kumar was taken and sealed by the

Doctor. All the sealed parcels containing blood stained earth, sample

earth the sample of blood of injured Ajay Kumar, his clothes and the

blood stained clothes of both the deceased along with the parcel

containing the knife was sent to CFSL for serological tests. On the

receipt of report from CFSL, the result of serological test and after

completion of investigation, appellant and accused Sat Pal @ Sansad

Pal were sent up for trial.

8. Appellant Naresh Yadav was charged for commission of offences

punishable under Sections 302 and 324 IPC as also Section 27 of the

Arms Act while accused Sat Pal @ Sansad Pal was charged for the

offence punishable under Section 201 IPC. Both the appellant and

accused Sat Pal pleaded not guilty to their respective charges and

claimed to be tried.

9. Defence put forth by the appellant is one of denial simplicitor.

According to explanation given by the appellant Naresh Yadav

recorded under Section 313 Cr.P.C., there was a fight between two

groups of boys over dancing and singing in the marriage party. During

the said fight, Shri Ashok Kumar and Shri Jitender Kumar gave fist

blows on the nose and face of the appellant, as a result of which, he

started bleeding and fell down. Appellant Naresh Yadav claimed that

he gained consciousness in the hospital from where he was picked up

by the Police and made to sit in the Police Station the whole night and

was ultimately falsely implicated in this case.

10. We need not concern ourselves with the defence of accused Sat

Pal as he has been acquitted by the Trial Court.

11. Learned Trial Court relying upon the testimony of eye witnesses

PW4 Jai Chand, PW5 Sultan Singh, PW6 Jai Bhagwan, PW8 Ajay Kumar

and PW15 Prem Singh Chauhan found the appellant guilty of the

offence punishable under sections 302 and 304 IPC as also under

Section 27 of the Arms Act and convicted and sentenced him

accordingly.

12. Learned counsel for the appellant has assailed the impugned

judgment on the ground that the learned Trial Judge while appreciating

the evidence failed to take note of various flaws and manipulations

done during investigation and in spite of that he has relied upon the

parrot like version narrated by the eye witnesses in their testimonies

whereas he ought to have disbelieved the eye witnesses in view of the

various infirmities in the prosecution case and given the benefit of

doubt to the appellant.

13. Expanding on the argument, learned counsel for the appellant

has firstly contended that admittedly the investigating agency was put

into motion in this case by DD No.9A dated 03.02.1989 (Ex.PW24/A)

recorded at Police Station Malviya Nagar. He has submitted that

perusal of DD Report Ex.PW24/A would reveal that it was handed over

to SI Surjit Singh for verification, which would imply that SI Surjit Singh

must be the first person to have reached the spot of occurrence,

therefore, his testimony would have been most material to give an

insight into first hand information of the occurrence. Despite of that,

the prosecution have neither cited nor produced him as a witness. He

has further submitted, therefore, this is a case of withholding of the

best evidence and the trial court because of said reason ought to have

drawn an adverse presumption against the prosecution, particularly,

when he in his judgment has not accepted the explanation given by SI

Banwari Lal for non-citing of SI Surjit Singh as a witness for

prosecution.

14. On perusal of the impugned judgment, it transpires that the

argument advanced by learned counsel for the appellant has been

extensively dealt with by the learned Trial Court and we do not find any

infirmity in the line of reasoning adopted by him. It would be seen

from the record that DD No.9A (Ex.PW24/A) dated 03.02.1989 was

recorded at the Police Station Malviya Nagar at 5.55 PM. Immediately

thereafter, another telephonic information was received at the Police

Station about the stabbing of Ashok Kumar, Jitender Kumar and Ajay

Kumar by one Naresh Yadav at Village Khirki. The information also

mentioned that Jitender Kumar had died due to the injury suffered.

The said information was recorded as DD No.10A (Ex.PW6/A) dated

03.02.1989, Police Station Malviya Nagar at 5.57 PM. Perusal of DD

No.10A further discloses that by that time SI Surjit Singh had not left

the Police Station for verification of DD no.9A, therefore, SHO Banwari

Lal who was leaving the Police Station for verification of DD No.10A

along with other staff took SI Surjit Singh along to Village Khirki. From

this, it is apparent that SHO Banwari Lal and SI Surjit Singh reached

together at the spot of occurrence and, because of this reason, the

learned Additional Sessions Judge despite of rejecting the explanation

given by the Investigating Officer Banwari Lal for non-citing of SI Surjit

Singh as a prosecution witness, concluded that non-production of SI

Surjit Singh as a witness of prosecution, is not fatal to the case of the

prosecution. We do not find any infirmity in the aforesaid reasoning of

the learned Additional Sessions Judge.

15. Secondly, learned counsel for the appellant has argued that Shri

Babu Lal who was the first person to report about the incident to the

police control room has also not been examined by the prosecution.

He being the material witness, his non-examination casts serious doubt

about the authenticity of the prosecution version. Learned counsel for

the appellant has pointed out that information given by Babu Lal to the

police control room, was conveyed to Police Station Malviya Nagar

which was recorded as DD No.9A (Ex.PW24/A) at 5.55 PM. He has

argued that the prosecution cannot take the excuse that identity of

Babu Lal was not known to the investigating agency, particularly, when

Shri Jai Chand PW4 disclosed in his cross-examination that Babu Lal

was working in DESU and was residing near Sainik Chowk where the

occurrence had taken place. It would be seen from the record that

Inspector Banwari Lal on reaching the spot of occurrence found as

many as five eye witnesses to the occurrence who had over-powered

and apprehended the accused. There being several eye witnesses

available at the spot, the Investigating Officer had a valid reason for

not going in search for more witnesses, therefore, in our opinion, the

learned trial court was right in not attaching much significance to non-

examination of Babu Lal as a prosecution witness, particularly, when

five eye witnesses including injured Ajay Kumar had supported the

case of the prosecution.

16. Learned counsel for the appellant has further submitted that the

case of the prosecution suffers from serious discrepancies and

infirmities, therefore, learned trial court ought to have given benefit of

doubt to the accused. He has argued that formal FIR Ex.PW24/C, if at

all it could be termed as FIR, is a result of consultation and

deliberation. According to him, the FIR has been anti timed. In support

of this contention, he has pointed out that the information given by

PW6 Jai Bhagwan which discloses the commission of cognizable offence

was registered at the Police Station as DD no.10A (Ex.PW6/A) at 5.57

PM. Since that information disclosed the commission of a cognizable

offence, the DD report ought to have been treated as FIR and on basis

of the same a formal FIR ought to have been registered immediately

thereafter but, instead of doing so, the investigating agency opted to

defer registration of formal FIR and only plausible reason for deferring

the registration of FIR could be that by that time Investigating Officer

was not aware of the identity of the assailant and, therefore, he kept

the option of registering the formal FIR open with him.

17. There is some substance in the argument that technically

speaking, DD No.10A (Ex.PW6/A) which was the first information

disclosing the commission of a cognizable offence should have been

treated as FIR. However, this lapse on the part of Investigating Officer

does not make much difference because perusal of DD No.10A reveals

that in the DD Report also appellant Naresh Yadav has been mentioned

as the assailant who had caused fatal injuries to Jitender Kumar and

Ashok Kumar and simple injury to PW8 Ajay Kumar. Since the name of

Naresh Kumar as the culprit came to fore at the earliest, any possibility

of manipulation or manufacturing of evidence against him is ruled out.

Thus, we are of the view that the learned Trial Judge has rightly

ignored the above technical flaw.

18. Next contention of learned counsel for the appellant is that on

perusal of the record, it would be seen that DD No.9A pertaining to this

case which was the first information received at the Police Station was

recorded at 5.55 PM on 03.02.1989 and in that DD Report, there was

only information regarding some quarrel going on near House No.146A.

He has submitted that thereafter a second DD No.10A on the basis of

statement of Jai Bhagwan has been purportedly recorded at 5.57 PM

wherein name of Naresh Yadav, appellant, surfaces. Thereafter,

several other DD Reports bearing DD No.11A, DD No.12A, DD No.13A

and DD No.14A pertaining to investigation of this case were

purportedly recorded at the Police Station. According to him, after

recording of DD No.9A, Daily Diary Register "A" of the Police Station

was kept open by the investigating agency so as to leave scope for

manipulations after due deliberations. This is obvious from the fact

that subsequent daily diary entries recorded at the Police Station in

respect of information conveyed by the P.C.R. about some unrelated

incidents were recorded on 03.02.1989 at 10.07 PM and 11.45 PM as

DD Nos.34B and 39B in Daily Diary Register "B" instead of Daily Diary

Register "A". Had the investigation in this case been fair, the entries

pertaining to those subsequent informations received from PCR would

have been recorded in Daily Diary Register "A" instead of Register "B".

He has further submitted that in view of the aforesaid circumstances,

learned Trial Court ought to have concluded that Daily Diary Register

"A" and FIR register were deliberately kept open by the Investigating

Officer with a view to leave a scope for manipulation of the facts.

19. We do not find merit in above contention of learned counsel for

the appellant. PW24, Head Constable Naipal Singh was working as

Duty Officer, Police Station Malviya Nagar on the fateful evening on

03.02.1989. He apparently is the author of DD Reports 10A to 14A as

well as the formal FIR No.40/89 Ex.PW24/C. During his cross-

examination, he has denied the suggestion to the effect that above DD

entries 10A to 14A were recorded by him in the register after midnight.

He is categoric in his assertion that all those DD Reports were recorded

at the time noted against them. Learned counsel for the appellant

during cross-examination of this witness has tried to create some

doubt against the recording of DD entries by bringing on record in his

cross-examination that some entries pertaining to information received

from PCR i.e. DD no.34B which was recorded at 10.07PM and DD

No.39B which was recorded at 11.45 PM were entered in Daily Diary

Register "B" instead of Register "A". This by itself is not sufficient to

conclude that relevant daily diary No.10A to 14A and also FIR No.40/89

(Ex.PW24/C) were anti timed. It would be seen that learned counsel for

the accused has not asked any question to this witness about the date

and time of recording of DD No.15A which could have clarified the

issue. Further, perusal of testimony of PW6 Jai Bhagwan on whose

information DD No.10A was recorded, would show that he has

categorically stated that at about 5.57 PM, he informed the Police

about the unfortunate incident on telephone. Similarly, PW4 Jai Chand

has also stated in his examination-in-chief that immediately after the

occurrence, he did advise Jai Bhagwan to inform the Police on

telephone. In view of the aforesaid evidence, there is no iota of doubt

left in our mind that information about the occurrence and involvement

of the appellant Naresh Yadav as culprit was actually conveyed to the

Police on telephone by PW6 Jai Bhagwan at about 5.57 PM. Therefore,

there is no question of daily diary No.10A being anti time. Once it is

established that name of the accused appellant as a culprit came on

the record of Police Station at 5.57 PM, the argument of the appellant

regarding anti timing of record including FIR cannot be accepted.

20. Learned counsel for the appellant has further submitted that PW8

Ajay Kumar is not a reliable witness and he did not receive injury at the

hands of the appellant. He has submitted that had Ajay Kumar been

stabbed by the appellant, the FIR would have been recorded on his

statement and not on the statement of Shri Jai Chand. He has further

referred to the statement of PW32 Dr. B.P. Singh who had medically

examined PW8 Ajay Kumar and found that at the time of medical

examination injury on person of Ajay Kumar was bleeding which

suggest that explanation of PW Ajay Kumar that he obtained first aid

from Dr. R.P. Bholla is a made up story.

21. We do not find any merit in the above contention. From the

perusal of record, it transpires that all the witnesses including Ajay

Kumar have explained his absence from the spot of occurrence at the

time of arrival of the Investigating Officer, by stating that he had gone

to the Doctor for getting medical aid relating to his injury. The

statements of eye witnesses further find corroboration from the

statement of Dr. R.P. Bholla, PW18 which more or less remains

unchallenged. It is in the statement of Dr. R.P. Bholla as well as PW8

Ajay Kumar that after giving first aid to PW8 Ajay Kumar, Dr. R.P. Bholla

had advised him to immediately go to some hospital. MLC (Ex.PW25/A)

of Shri Ajay Kumar reveals that he had suffered a gaping linear wound,

it does not show that the blood was oozing from the said wound. Since

Dr. Bholla had given only first aid, presence of some blood in the

wound of Ajay Kumar at the time of preparation of his M.L.C. is not

surprising. This circumstance does not in any manner create a doubt

at the version of either Ajay Kumar or Dr. Bholla. Thus, under the

circumstances, we do not find any force in the contention that

presence of Ajay Kumar PW8 at the spot of occurrence or his having

received injury at the hands of appellant is doubtful.

22. Learned counsel for the appellant has further argued that learned

trial court has erred in relying upon the testimony of eye witnesses

PW4 Jai Chand, PW5 Sultan Singh, PW6 Jai Bhagwan, PW8 Ajay Kumar

and PW15 Prem Singh Chauhan who have given tutored versions

against the appellant.

23. We do not find any substance in the argument. Since PW4 Jai

Chand, PW5 Sultan Singh, PW6 Jai Bhagwan, PW8 Ajay Kumar and

PW15 Prem Singh Chauhan were witnesses to the occurrence, it is

natural their testimonies would be identical in material aspects of the

case. Otherwise also, we have gone through the testimony of all the

eye witnesses and we find their version to be natural and consistent.

They were cross-examined at length by learned counsel for the

appellant but, nothing material so as to discredit their testimony has

come out on record. There is nothing on the record to suggest that

either of above referred five witnesses had any enmity or ill-will

towards the appellant. Therefore, we find no reason as to why they

would depose against the appellant.

24. Lastly, it is submitted on behalf of the appellant that had the

version of prosecution been true, the weapon of offence, i.e., the knife

ought to have been recovered from the possession of the appellant,

who, as per prosecution case was apprehended immediately after the

occurrence by eye witnesses. He has pointed out that story set up by

the prosecution was that while trying to escape, the appellant

managed to get rid of the knife which was later on concealed by his co-

accused Satpal @ Sansad Pal in the latrine in the house of Bhagwan

Dass in Khirki Village, which knife was later on recovered at the

instance of co-accused Satpal @ Sansad Pal. He has pointed out that

the learned Additional Sessions Judge has acquitted accused Satpal @

Sansad Pal giving him benefit of doubt. Learned counsel for the

appellant has argued that once accused Sat Pal was acquitted after

rejecting the story of recovery of knife at his instance, learned Trial

Court ought to have given benefit of doubt to the appellant because if

the Police could falsely implicate accused Sat Pal @ Sansad Pal, where

is the guarantee that the Investigating Officer has not falsely

implicated the appellant.

25. We are unable to agree with this contention of learned counsel

for the appellant merely because the co-accused has been acquitted

extending him benefit of doubt, the case against the appellant cannot

be thrown away. This only calls for the use of extra caution while

appreciating the testimony of the eye witnesses. As discussed above,

we have found testimony of as many as five witnesses reliable and

trustworthy, which cannot be given a go by. Otherwise also, perusal of

the impugned judgment would reveal that the learned Trial Court has

not rejected the prosecution story of recovery of knife from the latrine

located in the house of Shri Bhagwan Dass but, has extended benefit of

doubt to the accused Sat Pal on the ground that the aforesaid latrine

was accessible to all the occupants of the house and any one could

have concealed the knife Ex.P4 there. Thus, we are of the view that

learned Trial Judge has rightly recorded the conviction of the appellant

relying upon the consistent testimony of the eye witnesses.

26. In view of the discussion above, we do not find any infirmity in

the impugned judgment and conclude that the instant appeal is devoid

of any merit.

27. Appeal is, accordingly, dismissed.

28. The appellant Naresh Yadav @ Naresh Kumar is on bail. His bail-

cum-surety bond is, accordingly, cancelled. He is ordered to be taken

into custody to undergo the remaining sentence as awarded by the

learned Additional Sessions Judge.

AJIT BHARIHOKE, J.

JULY 23, 2009                               SANJAY KISHAN KAUL, J.
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