Anand Kumar vs The State
2009 Latest Caselaw 4686 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 18.11.2009

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                              CRL. A. NO. 44 OF 1996

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ANAND KUMAR                                  ........APPELLANT

                              Through:       Mr.   Deepak    Sharma,
                              Advocate

                    Versus

THE STATE                                    .......RESPONDENT

                              Through: Mr.          Sunil    Sharma,
                              Advocate.

CORAM

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL

HON'BLE MR. JUSTICE AJIT BHARIHOKE
     1. Whether the Reporters of local papers may be
       allowed to see the judgment?
     2. To be referred to Reporter or not?
     3. Whether the judgment should be
       reported in the Digest?



SANJAY KISHAN KAUL, J. (ORAL)

1. The case of the prosecution is that on the fateful evening of

1.11.1986 at about 8.30 PM, Vakeel Ahmed, the complainant was

returning after buying vegetables from vegetable market, Gokal

Puri and when he reached the corner of Park C Block, Gokalpuri,

he saw six boys present at the back side of T.V. Centre. Four out

of them, namely, the appellant Anand Kumar and the other co-

accused Shyam Singh, Om Prakash and Pramood were having an

altercation with Shankar, deceased and Mehboob (PW-6). He

noticed Shyam Singh exhorting others to teach a lesson to the

deceased for his arrogance. On this, Om Prakash and Pramood

caught hold of the deceased and the appellant took out a dagger

tucked near his socks and inflicted three to four blows on the

person of the deceased, as a result deceased fell down and all

four of them run away. In the meanwhile, Constable Vinod Raj

and one Head Constable reached at the place of occurrence and

he conveyed the information about the incident on telephone to

the police station, which was recorded as DD No. 20A dated

1.11.1986 (Ex. PW 13/A).

2. On the receipt of copy of DD report, Devi Dayal SI (PW-13)

reached at the place of occurrence and found the dead body of

Shankar lying in a pool of blood. He recorded the statement of

the complainant Ex.PW-7/B and sent it to the police station with

his endorsement for the registration of the FIR and on the basis of

the said complaint statement FIR u/s 302/34 IPC was registered.

The Investigating Officer prepared the rough site plan, got the

place of occurrence photographed from various angles, sent the

dead body for postmortem and obtained the postmortem report.

3. On 3.11.1986, SI Devi Dayal arrested all the four accused on

the pointing of the complainant from Kardam Puri Garden. From

the search of the appellant, the dagger (churri) allegedly used by

him for stabbing the deceased was recovered. It was in a leather

cover and had blood stains. Subsequently, from serological

examination, it was found that the dagger had stains of human

blood group `A' which was also the blood group of the deceased.

It is further the case of the prosecution that the appellant also got

recovered the blood stained clothes which he was wearing at the

time of occurrence, which were also stated to have blood stains of

the same blood group. The appellant and other three co-accused

were sent for trial by the police. They were charged u/s 302/34

IPC. All of them pleaded innocence and claimed to be tried.

4. Learned counsel for the appellant has assailed the

impugned judgment on the ground that the trial court has

wrongly placed reliance upon the sole testimony of the

complainant PW-7 Vakeel Ahmed who himself has not fully

supported the case of the prosecution and was declared hostile at

the request of the prosecution. He has submitted that trial court

ought to have taken note of the fact that out of the four accused

sent for trial on the basis of his complaint, he did not implicate or

assign any role to the other three accused but implicated the

appellant alone. Not only this, in the cross examination he

admitted that he was a complainant in 5-6 other cases pertaining

to the police station Gokal Puri, which also raises a suspicion that

he is a stock witness of police station Gokal Puri. The trial court

also failed to note that as per the scaled site plan Ex.PW-5/A,

there was a distance of 14.2 mtrs. between the place of

occurrence and the place from where PW-7 saw the occurrence

and that from such a long distance he could not have seen the

occurrence as his vision would be partly obstructed because

admittedly, there was a wall with iron grills stated to be of total

height of one mtr. in between.

5. On the other hand, learned counsel for the State has argued

in support of the impugned judgment and he has submitted that

there is no law that conviction cannot be based on testimony of a

sole eye witness.

6. It is true that there is no bar under law to base conviction on

the basis of the testimony of a single witness. It is the quality of

the evidence which matters and not the quantity. Since the other

eye witness PW-6 Mehboob Ali examined by the prosecution has

not supported the case of the prosecution, the testimony of PW-7

Vakeel Ahmed, in our view, is to be approached with extra care

and caution particularly when this witness has turned hostile so

far as the role of the other three co-accused is concerned. On

perusal of record, it transpires that as per the case of prosecution

PW-6 Mehboob Ali was admittedly present at the spot of

occurrence and he had a better chance to witness the details of

the occurrence. Despite this, there is no explanation as to why

the Investigating Officer preferred to record the statement of PW-

7 Vakeel Ahmed for the purpose of registration of the case

instead of the statement of PW-6 Mehboob Ali. Though at the first

blush, this act on the part of Investigating Officer may appear to

be innocent but when it is looked at in the background of the fact

that PW-7 admittedly had been the complainant in 5-6 other

cases of police station Gokal Puri, the conduct of the Investigating

Officer becomes suspect.

7. As per the complaint Ex.PW-7/B , PW-7 Vakeel Ahmed

implicated all the four accused including the appellant for the

murder of the deceased and in his complaint statement he

detailed the role of other three accused persons. He, however, in

his testimony in the Court did not assign any role to the other

three accused persons. From this, it can be safely inferred that

either PW-7 was not truthful while giving his statement Ex.PW-7/B

to the Investigating Officer or he has deposed falsely in the Court.

In both the eventualities, only inference which can be drawn is

that PW-7 Vakeel Ahmed is not a truthful witness. Therefore, we

do not find it safe to place reliance upon his testimony. It was a

Diwali night, therefore, being Amavasya a possibility of there

being sufficient light for the witness to see the occurrence was

also bleak. The scaled site plan Ex.5/A shows only two light

sources near the spot of occurrence, which were at the two

corners at a distance of 11.05 mtrs. and 15.35 mtrs. respectively

from the spot of occurrence. Further, it has come in evidence that

PW-7 saw the occurrence from the side of the park and in his line

of vision, there was a wall and railing of the park of around one

meter height. If that was so, the version of the witness that the

appellant took out the knife from near his socks is highly doubtful

because through the wall and railing, he could not have seen the

appellant taking out the knife from near his socks.

8. Lastly, case of the prosecution is that the weapon of offence

i.e. the knife was recovered from the personal search of the

appellant when he was arrested two days later from Kardam Puri

park and at that time the knife is stated to have been in the

leather case and it was having blood stains. It is highly

improbable that a person having committed murder would keep

the knife with the blood of the deceased thereupon for two days

without making an effort either to conceal the knife somewhere or

atleast wipe out the blood stains from the same. If the

prosecution case is to be believed, then it appears that the

appellant was waiting for the police to come and catch hold of

him with incriminating evidence, which is highly improbable.

9. In view of the above, we do not deem it safe to rely upon

the testimony of PW7 Vakeel Ahmed who turned hostile to the

case of prosecution so far as the role of other three co-accused in

the occurrence is concerned, particularly when he admittedly has

been a complainant/witness in as many as 5-6 cases pertaining to

P.S. Gokal Puri which raises a suspicion that he might be a stock

witness of the police. The appellant, in our considered view,

given the weak nature of evidence is entitled to the benefit of

doubt. Accordingly we set aside the conviction of the appellant

under Section 302 IPC and acquit him extending the benefit of

doubt.

10. The appeal is accordingly allowed. The bail bond and surety

stand discharged.

SANJAY KISHAN KAUL, J.

NOVEMBER 18, 2009                 AJIT BHARIHOKE, J.


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