Delhi High Court
Raja Ram & Anr. vs The State on 26 November, 2009
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: November 26, 2009
+ CRIMINAL APPEAL NO.467/2009
RAJA RAM & ANR. ..... Appellants
Through: Mr. Tarun Sharma, Advocate
Versus
THE STATE ..... Respondent
Through: Mr. Pawan 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?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be
reported in Digest ?
SANJAY KISHAN KAUL, J.(ORAL)
1. The appellant and his co-accused Ramesh Kumar were prosecuted
in Sessions Case No.01/03 emanating from FIR No.286/02, Police Station
Mandir Marg on charges under Section 302 read with Section 34 IPC and
Section 27 of the Arms Act for having committed the murder of Jagat Pal
(hereinafter referred to as "deceased") by using knives in contravention
of Section 5 of the Arms Act. Vide impugned judgment dated 08.04.2008,
the appellant and the co-accused were held guilty of offences punishable
under Sections 302/34 IPC and Section 27 of the Arms Act and vide order
dated 11.04.2008, they were sentenced to undergo imprisonment for life
and to pay a fine of Rs.1,000/- for the offence punishable under Section
302 IPC and also to undergo RI for the period of one year and to pay a
fine of Rs.1,000/- for the offence punishable under Section 27 of the Arms
Act. Feeling aggrieved by the impugned conviction and order on
sentence, the appellant has preferred this appeal.
2. Briefly put, case of the prosecution is that on 22.08.2002, ASI
Suresh Chand(PW25) was present on duty in the area of Baba Kharak
Singh Marg along with Constable Subash Giri (PW4), Constable Jasbir
Singh (PW16) and Constable Amrit Singh (PW17). After deputing
Constable Subash Giri and Constable Jasbir Singh on traffic control duty at
T-point, Baba Kharak Singh Marg, Near Hanuman Mandir, ASI Suresh
Chand (PW25) proceeded for motor cycle patrol along with Constable
Amrit Singh (PW17). At around 11:25 am, in front of petrol pump, Baba
Kharak Singh Marg, one person informed ASI Suresh Chand that two
persons were stabbing a person with "churri" in the side lane near
Haryana Emporium. ASI Suresh Chand informed the police station and
reached near Haryana Emporium on Baba Kharak Singh Marg, where he
saw two persons, whose names were later on revealed as Raja Ram and
Ramesh Kumar, stabbing a man, aged about 35 years and they were
saying that they would kill him for stealing their smack on daily basis. On
seeing the police, both of them fled from the spot. They were chased by
ASI Suresh Chand and Constable Amrit Singh. Constable Subhash Giri
and Constable Jasbir Singh also ran after the accused persons. Constable
Subhash Giri apprehended accused Ramesh Kumar at Hanuman Lane and
Constable Jasbir Singh apprehended the appellant Raja Ram near the
Masjid at Connaught Place. Both the accused were holding blood-stained
"churries" in their hands. By the time ASI Suresh Chand and the
Constables brought the accused persons to the spot of occurrence, the
injured had already been removed to the RML Hospital by a PCR Van.
3. Inspector Ram Kishan (PW28) and SI Krishan Lal(PW15), on receipt
of information also reached at the spot. On learning that the deceased
has been removed to RML Hospital, PW28 Inspector Ram Kishan left SI
Krishan Lal (PW15) to guard the spot and went to the hospital where he
learnt that the deceased had been declared brought dead.
4. PW28, Inspector Ram Kishan returned to the spot of occurrence and
recorded the statement Ex.PW25/A of ASI Suresh Chand(PW25). He
appended his endorsement Ex.PW28/A detailing the factual situation and
sent it to the police station through Constable Gajender Singh (PW22) for
the registration of the case. On the basis of the said Rukka, formal FIR
No.286/02 (Ex.PW8/A) was recorded at 2:45 pm on 22.08.2002.
5. From the spot of occurrence, sample control earth and blood stained
earth were lifted by the Investigating Officer vide memo Ex.PW4/C. Police
photographer, Head Constable Ravinder Kumar from Crime Team was
summoned and he took photographs of the spot Exhibits PW9/A1 to
PW9/A24 from various angles, negatives whereof are Exhibits PW9/A25 to
PW9/A48.
6. SI Chandrika Prasad (PW1), accompanied by Constable Kuldeep
Chand (PW5), took both the accused persons to RML Hospital, where their
medical examination was conducted by Dr. P.K.Nayak (PW26) and no
injuries were found on their persons. Their MLCs are Exhibits PW26/A and
PW26/B. Blood samples of both the accused and the clothes which they
were wearing at the time of commission of offence, were handed over to
the police at the hospital and the same were seized vide memo
Ex.PW7/A.
7. On 26.08.2002, the dead body of the deceased was sent for post
mortem examination. Dr. Amit Kochar(PW21) and Dr. Sumit Seth( PW23)
conducted post mortem examination and gave their report Ex.PW21/A,
which recorded that eight ante mortem injuries were found on the person
of the deceased and the cause of death was hemorrhagic shock and the
injury Nos.1 and 2 noted in the post mortem report were found sufficient
to cause death in the ordinary course of nature, individually as well as
collectively. Blood-stained clothes of the deceased and his blood sample
gauge were handed over to the police.
8. The blood-stained clothes of the accused persons and the "churries"
recovered from them were sent for serological examination and as per
report of serological examination Exhibits PW28/C, PW28/D and PW28/E,
the blood group of the deceased was „B‟ and human blood group „B‟ was
detected on the clothes of the deceased and accused persons. Though
human blood was detected on the "churries" (knives), the blood group
thereon could not be ascertained.
9. On completion of investigation, charge sheet was filed against the
appellant and his co-accused under Section 302 read with Section 34 IPC
and Section 27 of the Arms Act.
10. ASI Suresh Chand, PW25 deposed in the Court that on 22.08.2002 at
about 11:15 am, a public person had informed him and Constable Amrit
Singh that two persons were stabbing a man near Haryana Emporium and
on reaching the spot he saw that the accused persons, holding "churries"
(knives) in their hands, were stabbing the deceased and saying that they
would kill him as he used to steal their smack on daily basis. The clothes
of the accused persons were stained with blood. On seeing the police
they tried to flee, but were apprehended by Constable Subash Giri and
Constable Jasbir Singh respectively. The blood-stained "churries" were
recovered from the possession of the accused persons respectively.
11. Const. Amrit Singh PW-17 deposed that on 22.08.2002 at about
11.25 AM a public person had stopped him and ASI Suresh Chand and
informed them that two persons were stabbing a man near Haryana
Emporium; that on reaching the spot he saw the accused persons
holding knives in their hands were stabbing and exhorting the
deceased; that the clothes of the accused persons were stained with
blood; that when the accused attempted to flee, Const. Subash Giri
apprehended accused Ramesh Kumar at Hanuman Mandir Lane and
Const.Jasbir Singh apprehended appellant Raja Ram at the rear of the
mosque; that one blood stained knife each was recovered from the
possession of the accused persons.
12. Const.Subash Giri PW-4 deposed that on 22.08.2002, he along
with Const. Jasbir Singh was regulating traffic at T-point at Hanuman
Mandir lane, when at about 11.30 A.M. he heard the alarmed voices of
ASI Suresh Chand and Const.Amrit Singh and saw them chasing the
accused persons; that one of the accused person was running towards
Hanuman Mandir lane while the other was running towards a mosque;
that he chased accused Ramesh Kumar who was running towards
Hanuman Mandir lane and apprehended him; that the accused
Ramesh was holding a blood stained knife in his hand and his clothes
were also stained with blood at the time of his apprehension; that the
other accused person was apprehended by Const. Jasbir Singh .
13. Const.Jasbir Singh PW-16 deposed that on 22.08.2002 he along
with Const. Subash Giri was regulating traffic at T-point at Hanuman
Mandir lane, when at about 11.35-11.40 A.M. he heard loud voices
coming from the direction of Haryana Emporium and saw that the
accused persons, who were holding knives in their hands and whose
clothes were stained with blood, were running at a fast speed; that he
started to chase the accused person who was running towards the
mosque and apprehended him at the rear of the mosque; that the
other accused person was apprehended by Const.Subash Giri; that the
appellant Raja Ram was holding a blood stained knife at the time of his
apprehension.
14. Insp. Ram Kishan PW-28 deposed that the endorsement Ex.PW-
28/A was recorded by him on the basis of the statement Ex.PW-25/A of
ASI Suresh Chand.
15. SI Krishan Lal PW-15 who had assisted in the investigation at the
spot on the date of the incident deposed that the accused persons had
already been apprehended by Const. Subash Giri and Const. Jasbir by
the time he had arrived at the spot; that on reaching the spot he found
that the clothes of the accused persons were stained with blood and
that huge quantity of blood was lying at the spot.
16. In his statement under Section 313 Cr.P.C., the appellant denied
the prosecution version. He explained that on 22.08.2002, he was
busy in his „kabari‟ work in Haryana Emporium. One police officer
came there and took him to the police station on the pretext that some
cleaning work was required to be done at the police station. After
some time, his signatures and thumb marks were obtained on some
written and blank papers and he was compelled to hold a knife in his
hand and on the next day he was produced in the court. Thus, he
claimed himself to be innocent.
17. Believing the testimonies of the police officials and holding that
the presence of human blood of 'B' group on the clothes of the
appellant and presence of human blood on the knife recovered from
the possession of the appellant lends corroboration to the case of the
prosecution, the learned Trial Judge has convicted the appellant of
committing offences punishable under Section 302/34 IPC and Sections
27/54/59 of the Arms Act. Similarly, on the same set of reasoning the
co-accused has also been convicted.
18. We may note at the outset that the co-accused Ramesh Kumar
whose role is almost similar to that of the appellant had also preferred an
appeal against the impugned judgment in Crl.A. No.478/2008, which was
dismissed by a Co-ordinate Bench of this Court vide its judgment dated
26.02.2009. Ramesh Kumar preferred an SLP against the aforesaid
judgment, which was dismissed in limine.
19. The first submission advanced by learned counsel for the appellant
against the impugned judgment is that as per the evidence on record, 10
to 15 persons had collected at the time of the incident, despite that not
even a single witness has been cited or examined by the prosecution.
Therefore, no reliance should be placed upon the evidence of the police
officials.
20. In this regard, it would be useful to quote the following
observations of the Hon'ble Supreme Court in the decision reported as
Sarwan Singh v State of Punjab (2003) 1 SCC 240:-
"As regards the examination of independent persons or witnesses, we
would do well to note a decision of this Court in Ambika Prasad and Anr.
v. State (Delhi Admn.) (2002) 2 SCC 646, wherein this Court in
paragraph 12 observed:
"12. It is next contended that despite the fact that 20 to 25 persons
collected at the spot at the time of the incident as deposed by the
prosecution witnesses, not a single independent witness has been
examined and, therefore, no reliance should be placed on the evidence
of PW5 and PW7. This submission also deserves to be rejected. It is
known fact that independent persons are reluctant to be witnesses or to
assist the investigation. Reasons are not far to seek. Firstly, in cases
where injured witnesses or the close relative of the deceased are under
constant threat and they dare not depose the truth before the court,
independent witnesses believe that their safety is not guaranteed. That
belief cannot be said to be without any substance. Another reason may
be the delay in recording the evidence of independent witnesses and
repeated adjournment in the court. In any case, if independent persons
are not willing to cooperate with the investigation, the prosecution
cannot be blamed and it cannot be a ground for rejecting the evidence
of injured witnesses. Dealing with a similar contention in State U.P.
v.Anil Singh (1988 Supp SCC 686), this Court observed:(SC pp. 691-92,
para 15)
"In some cases, the entire prosecution case is doubted for not
examining all witnesses to the occurrence. We have recently pointed out
the indifferent attitude of the public in the investigation of crimes. The
public are generally reluctant to come forward to depose before the
Court. It is, therefore, not correct to reject the prosecution version only
on the ground that all witnesses to the occurrence have not been
examined. Nor it is proper to reject the case for want of corroboration by
independent witnesses if the case made out is otherwise true and
acceptable."
The test of creditworthiness and acceptability in our view, ought to be
the guiding factors and if so the requirements as above, stand answered
in the affirmative, question of raising an eyebrow on reliability of
witness would be futile. The test is the credibility and acceptability of
the witnesses available - if they are so, the prosecution should be able
to prove the case with their assistance.
Coming to the contextual facts once again, while it is true that there is
no independent witness but the evidence available on record does
inspire confidence and the appellant has not been able to shake the
credibility of the eye-witnesses. There is not even any material
contradiction in the case of the prosecution."
21. 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.
22. The second submission advanced by the learned counsel for the
appellant is that only evidence which connects the appellant with the
crime of murder of Jagat Pal are the statements of the police officials and
that it is not safe to rely upon the evidence of the police officials to
sustain the conviction of the appellant as they obviously are interested in
the success of the case.
23. A similar contention was repelled by the Hon'ble Supreme Court
in Kalpnath Rai v State (1997) 8 SCC 732 in the following terms:-
"As a legal proposition it was argued that it would be unsafe to
base a conclusion on the evidence of police officers alone without
being supported by at least one independent person from the
locality. To reinforce the said contention Shri V.S. Kotwal, Senior
Advocate cited the decision of this Court in Pradeep Narayan
Madgaonkar and Ors. v. State of Maharashtra (1995) 4 SCC 255
wherein want of independent witnesses of the locality rendered
suspicious a raid conducted by the police.
There can be no legal proposition that evidence of police officers,
unless supported by independent witnesses, is unworthy of
acceptance. Non-examination of independent witness or even
presence of such witness during police raid would cast an added
duty on the court to adopt greater care while scrutinising the
evidence of the police officers. If the evidence of the police officer
is found acceptable it would be an erroneous proposition that
court must reject the prosecution version solely on the ground
that no independent witness was examined. In Pradeep Narain
Madgaonkar (supra) to which one of us (Mukherjee, J) is a party,
the aforesaid position has been stated in unambiguous terms, the
relevant portion of which is extracted below:
Indeed, the evidence of the official (police) witnesses cannot be
discarded merely on the ground that they belong to the police
force and are, either interested in the investigation or the
prosecuting agency but prudence dictates that their evidence
needs to be subjected to strict scrutiny and as far as possible
corroboration of their evidence in material particulars should be
sought. Their desire to see the success of the case based on their
investigation; requires greater care to appreciate their testimony.
In Balbir Singh v. State (1996) 11 SCC 139 this Court has repelled
a similar contention based on non-examination of independent
witnesses. The same legal position has been reiterated by this
Court time and again vide Paras Ram v. State of Haryana (1992) 4
SCC 662, Same Alana Abdullla v. State of Gujarat (1996) 1 SCC
427, Anil alias Andy a Sadashiv Nandoskar v. State of Maharashtra
AIR 1996 SC 2943, Tahir v. State (Delhi) JT 1996(3) SCC 338."
24. Learned counsel for the appellant further submitted that there are
material contradictions/discrepancies in the testimony of the police
officials, who were associated with the apprehension of the accused
persons and the conduct of investigation on the date of the incident,
which case gives support to the defence of the appellant that he was
taken to the police station by a police officer on a false pretext from
Haryana Emporium on the date of occurrence and falsely implicated by
the police.
25. Similar argument referring to material contradictions/discrepancies
in the testimony of witnesses was raised on behalf of co-accused Ramesh
Kumar in Crl.A. No.478/2008 and was rejected by a Coordinate Bench of
this Court in its judgment dated 26.02.2009, with following observations:-
"33. Before dealing with the afore-noted submission of
the counsel for the appellant it would be apposite to refer
the following observations rendered by the Hon'ble
Supreme Court in a recent decision in Criminal Appeal
No.456/2002 Jayaseelan vs. State of Tamil Nadu decided
on 11.02.2009:-
".........Witnesses just cannot help in giving
embroidery to a story, however, true in the main.
Therefore, it has to be appraised in each case as to
what extent the evidence is worthy of acceptance,
and merely because in some respects the Court
considers the same to be insufficient for placing
reliance on the testimony of a witness, it does not
necessarily follow as a matter of law that it must be
disregarded in all respect as well. The evidence has
to be shifted with care. The aforesaid dictum is not a
sound rule for the reason that one hardly comes
across a witness whose evidence does not contain a
grain of untruth or at any rate exaggeration,
embroideries or embellishment.......As observed by
this Court in State of Rajasthan v. Smt Kalki and Anr.
(1981) 2 SCC 752, normal discrepancies in evidence
are those which are due to normal errors of
observation, normal errors of memory due to lapse
of time, due to mental disposition such as shock and
horror at the time of occurrence and those are
always there however honest and truthful a witness
may be. Material discrepancies are those which are
not normal, and not expected of a normal person.
Courts have to label the category to which a
discrepancy may be categorized. While normal
discrepancies do not corrode the credibility of a
party's case, material discrepancies do so. These
aspects were highlighted in Krishna Mochi and Ors.
v. State of Bihar etc. AIR 2002 SC 1965 and in Sucha
Singh v. State of Punjab AIR 2003 SC 3617. It was
further illuminated in the Zahira H. Sheikh v. State
of Gujarat AIR 2004 SC 346; Ram Udgar Singh v.
State of Bihar (2004) 10 SCC 443 ; Gorle S. Naidu v.
State of Andhra Pradesh (2003) 10 SCC 449;
Gubbala Venugopalswamy v. State of Andhra
Pradesh (2004) 10 SCC 120 and in Syed Ibrahim v.
State of A.P. AIR 2006 SC 2908." (Emphasis
supplied)
34. In the backdrop of afore-noted legal position, we are
examining the so-called contradictions/discrepancies
pointed out by the learned counsel for the appellant in the
evidence of the witnesses of the prosecution herein under.
Under column B we are noting the subject matter of the
alleged contradiction/discrepancy; under column C we are
noting the contradiction/discrepancy alleged and under
column D we are noting our observation:-
A B C D
S.No. Subject of Contradiction/Discrepa- Remarks
Contradiction/Disc- ncy
repancy
1. Place of arrest of (i) Const. Subash Giri PW- There is no
accused persons 4 had deposed that 'both contradiction
the accused persons were inasmuch as PW-
brought at T-point at 4 is deposing that
Hanuman Mandir. Both accused persons
were arrested vide arrest were brought
memo Ex.PW-4/D and E.' together at T-point
after being
(ii) Const. Jasbir Singh apprehended at
PW-16 had deposed that different places
'accused Raja Ram was whereas PW-16 is
arrested at about 2.30 pm deposing about
after he was brought in formal arrest of
police station.' the accused Raja
Ram.
2. Place of preparation Const. Jasbir Singh PW- PW-17 is not a
of arrest memo of 16 had deposed that he party to the
accused Raja Ram had signed the arrest of preparation of all
accused Raja Ram in the the documents
police station whereas prepared during
Const. Amrit Singh PW-17 the investigation
had deposed that all the particularly the
documents were prepared arrest memo of
at the spot. the accused
persons therefore
there was no
occasion for him
to depose to about
the preparation of
all the documents.
3. Recording of time in The time of registration of This 'minor
FIR Ex.PW-8/A and FIR is recorded as 3.15 discrepancy' of
MLC of the accused P.M. on 22.08.2002 in FIR 10-15 minutes in
persons Ex.PW-26/A Ex.PW-8/A whereas MLC FIR and MLCs is
and Ex.PW-26/B Ex.PW-26/B of the of no
accused Ramesh records consequence.
his time of arrival in the
hospital as 3.05 PM on
22.08.2002 and MLC
Ex.P-26/A of the accused
Raja Ram records his time
of arrival in the hospital
as 3.10 PM on
22.08.2002.
Counsel argued that the
said discrepancy
evidences that the
accused persons were
medically examined before
registration of the FIR
4. Seizure of the sealed (i) ASI Suresh Chand PW- This discrepancy
materials 25 had deposed that 'IO of fifteen minutes
seized blood and earth is trivial in nature
control at the spot at about considering the
3.15 pm.' fact the witnesses
were being
(ii) HC Ratan Singh PW- examined 2-3
12 had deposed that 'the years after the
sealed parcels were happening of the
deposited in Malkhana at incident and
about 3 pm.' therefore does not
create a dent in
the case of the
prosecution.
5. Time of arrest of Insp Ram Kishan PW-28, This minor
accused persons deposed that he had discrepancy in the
arrested accused persons evidence
at about 4.30 or 4.45 pm particularly when
on 22.08.2002 whereas the witnesses are
ASI Suresh Chand PW-25, deposing 3-5
had deposed that the years after the
accused persons were happening of the
arrested about 3.15 pm incident does not
cast a doubt on
the veracity of the
case of the
prosecution.
6. Involvement of public (i) ASI Suresh Chand PW- The only apparent
witnesses in 25, had deposed that 'I contradiction is
investigation had not enquired from any between the
public person but I straight testimonies of
away tried to apprehend Ct.Amrit Singh
the accused persons'. PW-17, Ct. Jasbir
Singh PW-16, Insp
(ii) Ct. Amrit Singh PW-17 Ram Kishan PW-
deposed that 'IO requested 28 and SI Kishan
some public persons to join Lal PW-15, who
the investigation but had deposed to
nobody agreed...I also the effect that
requested some public Ram Kishan who
persons to join at the time was the IO had
of apprehending the not talked to any
accused but they did not public person in
join.' his presence.
(iii) Ct.Jasbir Singh PW-16 However it is to be
deposed that 'several borne in mind
persons also gathered that PW-15 had
there but nobody came soon departed the
nearby....IO requested spot after Insp
some public persons who Ram Kishan PW-
had collected on the spot to 28 had returned
join investigation.' to the spot from
RML hospital.
(iv) Ct. Subash Giri PW-4
had deposed that '10-15 Therefore, there is
persons collected on the no contradiction
spot at the time of the inasmuch as it is
incident. I do not remember
quite possible that
if IO asked any public Insp Ram Kishan
person collected on the might have talked
spot to join the
to public persons
investigation.' after the
departure of SI
(v) Insp Ram Kishan PW- Kishan Lal.
28 deposed that 'public
persons were present on
the spot when I reached
there first time. I made
inquiries from them if
anyone has witnessed the
commission of crime but
nobody agreed.'
(vi) SI Kishan Lal PW-15
had deposed that
'Inspector Ram Kishan had
not talked to any public
person in my presence.'
6. Seal on the clothes of Testimony of SI Chandrika The answer to the
the accused persons Prasad PW-1 brings out argument of
that clothes of the counsel lies in
accused persons were seizure memo
sealed with the seal of Ex.PW-6/A.
CMO DR RML Hospital
and were seized vide Ex.PW-6/A refers
memo Ex.PW-1/A. to a MLC
No.107519/02.
The deceased was
Testimony of Ct.Satish first brought to
PW-6 that one red colored RML hospital
t-shirt with blood stains where he was
was sealed with the seal of declared brought
CMO DR RML Hospital dead vide MLC
and was seized vide memo No.107519/02
Ex.PW-6/A.
Therefore, the T-
Counsel argued that if the shirt which was
clothes of the accused seized vide memo
persons were seized vide Ex.PW-6/A was
Ex.PW-1/A then from the t-shirt which
where did t-shirt which the deceased was
was seized vide Ex.PW- wearing at the
6/A emanate from? time of the
commission of the
crime.
7. Place of seizure of the (i) Ct.Subash Giri PW-4 It is a fact that the
clothes of the had deposed that "the accused persons
accused persons. clothes of the accused were first taken to
were seized in the police RML hospital for
station." their medical
examination and
(ii) Ct. Jasbir Singh PW- then brought to
16, had deposed that "the the police station.
clothes of the accused Raja
Ram which he was The police officers
wearing were seized at who had taken the
police station and I signed accused persons
on the seizure memo in for their medical
police station." examination had
deposed that
(iii) Insp Ram Kishan PW- doctor had
28 and the doctor Dr. P.K. handed over
Nayak who had conducted clothes of the
their medical examination accused and that
had deposed that the the same were
clothes which the accused seized vide seizure
persons were wearing at memo Ex.PW-6/A.
the time of the
commission of the crime Obviously the
were seized at the time of accused persons
their medical examination. could not have
been taken naked
from the hospital
to the police
station and some
alternative clothes
must have been
worn by them.
The witnesses PW-
4 and PW-16 are
deposing about
the seizure of
alternative clothes
which must have
been worn by the
accused persons
after their medical
examination
which stands
corroborated by
the fact that the
seizure memo
Ex.PW-6/A of the
clothes of the
accused persons
which they were
wearing at the
time of the
commission of
crime does not
bear the
signatures of PW-
16 whereas he
had deposed that
signed on seizure
memo of clothes.
Therefore, PW-16
must have signed
on the memo vide
which alternative
clothes which the
accused persons
were wearing after
their medical
examination were
seized.
35. Having dealt with the submissions of the learned
counsel for the appellant, the facts which stand
conclusively proved by the prosecution need to be noted in
order to arrive at a final conclusion."
26. We find no reason to deviate from the aforesaid conclusions of the
Coordinate Bench.
27. Learned counsel for the appellant has submitted that in order to
establish a motive for the crime, PW25, ASI Suresh Chand has deposed
that while inflicting the "churri" blows, the appellant and his co-accused
were saying that they would kill the deceased as he used to steal their
smack. It was contended that the said version of PW25 is not worthy of
credence because it was almost impossible for him to hear the words
uttered by the appellant and his co-accused in the background of loud
sound of the engine of Bullet motorcycle.
28. We find no merit in the argument. The submission made by the
learned counsel is in the nature of conjecture and surmise. Whether ASI
Suresh Chand, PW25 could or could not hear the words uttered by the
appellant and his co-accused at the time of incident would depend upon
the pitch at which the words were uttered. There is nothing on the record
to suggest that the appellant and his co-accused uttered said words at a
lower pitch. Therefore, there is no reason to disbelieve the version of ASI
Suresh Chand. Otherwise also, from the evidence on record, it is
apparent that the appellant and his co-accused were stabbing the
deceased and from the aforesaid factual matrix, it can be safely assumed
that both of them were in the fit of anger. Generally, when a person is
angry, the decibel level of speech becomes very high. Therefore, the
possibility of the appellant and his co-accused having uttered those words
at a loud sound audible to ASI Suresh Chand cannot be ruled out.
29. It was further submitted on behalf of the appellant that as per the
testimony of PW25, ASI Suresh Chand, the appellant and his co-accused
tried to flee away from the spot after the incident, but they were chased
and apprehended and brought to the place of occurrence at 12:15 noon,
whereas as per the version of Inspector Ram Kishan, PW28 he formally
arrested the appellant and his co-accused at 3:45 pm. It was argued that
the gap of three and a half hours between the time of apprehension of the
accused persons and their arrest raises a possibility of manipulation in the
investigation and renders the case of prosecution highly suspect.
30. The infirmity pointed out on behalf of the appellant, in our view, is
inconsequential. On careful scrutiny of the statement of PW28, Inspector
Ram Kishan, it transpires that on the receipt of information about the
incident, he reached at the spot of occurrence and found that the injured
had been removed to RML Hospital by a PCR van. Thus, he proceeded to
the hospital, where he came to know that the deceased was declared
brought dead by the Doctor concerned. Thereafter, he returned back to
the spot of occurrence, where he met ASI Suresh Chand and recorded his
statement Ex.PW25/A, which was sent to the police station along with his
Rukka Ex.PW28/A for the registration of the case. The Rukka Ex.PW28/A,
as per document, was sent to the police station at 2:30 pm. Constable
Gajender Singh, PW22, who took the Rukka to the police station, returned
back to the spot of occurrence after the registration of formal FIR and
thereafter formal arrest of the accused persons, including the appellant,
was made by the Investigating Officer in case FIR No.286/02 dated
22.08.2002. From the aforesaid sequence of events, it is obvious that
there was no undue delay in the arrest of the appellant and his co-
accused.
31. ASI Suresh Chand PW-25 and Const.Amrit Singh PW-17, had seen
the accused persons stabbing and exhorting the deceased. ASI Suresh
Chand PW-25, Const. Amrit Singh PW-17, Const Subash Giri PW-4,
Const. Jagbir Singh PW-16 and SI Kishan Lal PW-15, had seen that the
clothes of the accused persons were stained with blood. (The afore-
noted witnesses were cross-examined but nothing has been brought
out to discredit their respective testimonies). One blood-stained knife
each was recovered from the possession of the accused persons at the
time of their apprehension. The blood group of the deceased was 'B'
and human blood of 'B' group was detected on the clothes of the
accused persons. Human blood was detected on the knives recovered
from the possession of the accused persons at the time of their
apprehension.
32. The afore-noted facts unerringly connect the appellant to the
crime of having murdered the deceased and of using arms in
contravention of Section 5 of the Arms Act.
33. The appeal is devoid of merit and it is accordingly dismissed.
34. Appellant, who is in custody, to serve the remaining sentence.
SANJAY KISHAN KAUL, J.
NOVEMBER 26, 2009 AJIT BHARIHOKE, J.
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