Rambir Singh vs State (Government Of Nct Of Delhi)
2009 Latest Caselaw 4054 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                        Judgment reserved on : September 11, 2009
                        Judgment delivered on : October 08, 2009

+      CRIMINAL APPEAL NO. 209/1995

       RAMBIR SINGH                                 ..... Appellant
                        Through:    Mr.H.S. Gautam, Advocate

                  Versus


       STATE (GOVERNMENT OF THE NCT OF DELHI)
                                           .....Respondent
                   Through: Mr. Pawan Sharma, Advocate

       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 ?


AJIT BHARIHOKE, J.

1. Appellant Rambir Singh, on being convicted in Sessions Case

No.181/92, FIR No.355/91, Police Station Okhla Industrial Area for the

offence punishable under Section 302 IPC and sentenced to undergo

imprisonment for life in terms of order on sentence dated 29th

September, 1995, has preferred the instant appeal.

2. Briefly stated, case of the prosecution is that on 22th November,

1991 at about 7.12 PM, lady Constable Sunita of PCR informed the Duty

Officer, Police Station Okhla Industrial Area, on wireless that one

person had been stabbed in Kalyan Vihar, Okhla, Phase-I, New Delhi.

The information was recorded as DD No.12-A and copy of DD report

was handed over to PW16, SI Hari Singh for investigation. SI Hari Singh

along with PW15, Head Constable Vikram Singh and Constable Desh

Raj went to the place of occurrence at Kalyan Vihar but, no eye witness

was available. The injured person had been removed to the hospital,

so he left PW15, Head Constable Vikram Singh to protect the scene of

crime and went to AIIMS, New Delhi along with Constable Desh Raj and

collected MLC of the injured Latoori Ram, Ram Snehi and Virender

Singh. The Doctor declared Latoori Ram and Virender Singh fit for

statement. PW16, SI Hari Singh recorded the statement of Latoori Ram

Ex.PW2/A and sent it to the Police Station with his endorsement

thereupon for the registration of the case.

3. Latoori Ram PW2 is stated to have disclosed that on 22.11.1991

at about 12.30 PM, he came to his jhuggi and parked his cycle on the

road in front of jhuggi of appellant Rambir Singh, who objected to

parking of the cycle and insisted that the complainant should desist

from parking his cycle there, otherwise consequences would be

serious. Thereupon, complainant Latoori Ram removed the cycle. The

appellant, however, threatened him that he would see him in the

evening.

4. It was further stated that on the same day at about 6.30 PM,

Latoori Ram PW2 and his brothers-in-law, Virender Singh PW1 and Ram

Snehi were returning from a feast. When they reached near the jhuggi

of the appellant, he came out of his jhuggi holding an open knife in his

hand and challenged them saying that he would not spare them. The

appellant is stated to have first attacked PW1 Virender Singh with knife

on his left arm and the left side of his neck. PW2 Latoori Ram and

Ram Snehi tried to save Virender Singh PW1 but the appellant attacked

complainant Latoori Ram with knife and pierced his right palm and also

stabbed Ram Snehi (deceased) in his abdomen. Public persons tried to

apprehend the appellant Rambir Singh but, he managed to run away.

It was stated that the occurrence was witnessed by Bajinder Singh

PW13 and some other persons. The injured persons were removed to

the hospital by persons of locality.

5. The Investigating Officer recorded the statement of injured

Virender Singh PW1 and thereafter he went to the spot of occurrence

and prepared the rough site plan. He searched for the appellant

Rambir Singh and apprehended him at about 9.50 PM while he was

coming out of his jhuggi. On interrogation, the appellant made a

disclosure statement that he has kept the knife in the space between

wooden beam and the roof of his jhuggi but, the knife was not

recovered and the appellant was put in the lockup.

6. On 23.11.1991, Duty Constable, posted at AIIMS, informed the

local police about the death of injured Ram Snehi. On this, the offence

of under Section 302 IPC was also added to the FIR and further

investigation of the case was taken over by the SHO, Inspector

Raghubir Singh. Body of the deceased Ram Snehi was sent for post

mortem after the inquest proceedings. He recovered the weapon of

offence i.e. the knife Ex.P5 from the space in between wooden beam

and the roof of the jhuggi. The injuries suffered by PW1 Virender Singh

and PW2 Latoori Ram were opined simple and grievous respectively.

The Investigating Officer obtained the post mortem report wherein the

Doctor concerned had opined that out of the five injuries found on the

person of Ram Snehi, the injury No.3 and 4 were sufficient to cause

death individually as well as collectively. On completion of the

investigation, the appellant was sent for trial.

7. The appellant was charged for offences punishable under

Sections 302 and 307 IPC. He pleaded not guilty and claimed to be

tried.

8. During trial, prosecution examined three eye witnesses. PW13

Bajinder Singh did not support the case of prosecution and he claimed

that he was not present at the time of the occurrence and he later on

heard that some quarrel had taken place between the accused

(appellant) and Ram Snehi, Virender Singh and Latoori Ram. PW2

Latoori Ram complainant and PW1 Virender Singh, who had suffered

injuries in the occurrence, however, supported the case of prosecution.

PW2 Latoori Ram in his statement before the court deposed that on

22.11.91, he parked a cycle on the road in front of Jhuggi of the

appellant and went to take meals at his jhuggi. When he returned

back, the accused Rambir protested and told him to desist in future

from parking a cycle in front of his jhuggi and he (Latoori Ram)

responded that he had parked the cycle on a public road, therefore, the

appellant should have no objection. Thereafter, the appellant

threatened him that he would face the consequences in the evening.

PW2 Latoori Ram further deposed that on the same evening at about

6.00 or 6.30 PM, when he, Ram Snehi deceased and PW1 Virender

Singh were returning after attending a party, the appellant on seeing

them came running with an open knife in his hand and threatened to

finish them off. Thereafter, the appellant inflicted knife injury on the

left arm and left side of neck of PW1 Virender Singh. When he

(witness) and Ram Snehi tried to rescue Virender Singh, the appellant

stabbed him(witness) with the knife and pierced his palm and also

stabbed Ram Snehi in the abdomen. Some public persons tried to

apprehend the appellant, but he managed to run away. Thereafter,

they were removed to the hospital. PW1 Virender Singh also

corroborated the version of the complainant PW2 Latoori Ram and

deposed to the similar effect.

9. The learned Trial Court relying upon the testimony of the above

referred two witnesses convicted the appellant for the offence of

attempt to commit murder punishable under Section 307 IPC. He,

however, acquitted the appellant of charge under Section 302 IPC

because of the failure of the prosecution to prove the post mortem

report and the cause of death of death of the deceased Ram Snehi.

10. The prosecution has not preferred appeal against the acquittal of

the appellant on charge under Section 302 IPC. The appellant Rambir

Singh, however, feeling aggrieved by the judgment of conviction and

order on sentence, has preferred the instant appeal.

11. Learned counsel for the appellant has submitted that the learned

Trial Court has failed to appreciate that the testimony of above

referred witnesses is not reliable because it suffers from contradictions

and infirmities. He has pointed out that PW1 Virender Singh and PW2

Latoori Ram have contradicted themselves inasmuch as that PW1

Virender Singh in his cross-examination has stated that after the

occurrence, he and Latoori Ram were taken by the jhuggi dwellers to

the police post, whereas PW2 Latoori Ram has given a contradictory

version by stating in the cross-examination that after the occurrence,

neighbours took them to the hospital. He has also pointed out that

PW1 Virender Singh in his cross-examination has stated that statement

of Ram Snehi was also recorded by the police but the aforesaid

statement has not been placed by the prosecution on the record which

casts a shadow of doubt on the version of prosecution witnesses.

12. Human memory is short. Every event experienced by a person

starts fading in memory with the passage of time. Therefore, some

contradictions in the testimony of witnesses are bound to occur

particularly when there is a time gap between the recording of their

statement in the court and the date of the event. Further, different

persons are endowed with different capabilities of observation and

memory etc., which also contributes to minor contradictions in the

testimony of eye witnesses. Ex.PW6/A is the MLC of PW1 Virender

Singh and Ex.PW7/A is the MLC of PW2 Latoori Ram. From the above

referred MLCs, it transpires that both PW1 Virender Singh and PW2

Latoori Ram sustained injuries in the occurrence. Therefore, their

presence at the time of occurrence cannot be doubted. The

contradiction pointed out in their testimony, in our considered view,

does not touch the material aspect of the case and can be attributed to

lapse of memory. On overall reading of testimony of PW1 and PW2, we

find that they have deposed in a natural manner and have withstood

the test of cross-examination. Thus, there is no reason whatsoever to

doubt the truthfulness of their version. Much significance cannot be

attributed to the statement of PW1 Virender Singh that statement of

the deceased Ram Snehi was also recorded by the Investigating

Officer, as suggestion to that effect has been categorically denied by

PW16, SI Hari Singh who is the initial Investigating Officer of this case.

13. The learned counsel for the appellant has further submitted that

admittedly PW1 Virender Singh and Ram Snehi (deceased) are brothers

as well as the brothers-in-law of PW2 Latoori Ram. He has submitted

that in view of the aforesaid close relationship between the witnesses

and the deceased, they obviously fall within the category of interested

witnesses and their testimony should have been considered by the

learned trial Judge with a pinch of salt. He has pointed out that only

independent witness of the prosecution in this case PW13 Bajinder

Singh has not supported the case of the prosecution, therefore, the

learned Trial Court should have extended benefit of doubt to the

appellant instead of placing reliance upon the testimony of the

interested witnesses PW1 Virender Singh and PW2 Latoori Ram.

14. The law relating to the appreciation of evidence of

interested/related witness is well settled. In the matter of State of J.

& K. Vs. S. Mohan Singh AIR 2006 SC 1410, the Supreme Court

observed that where the evidence was otherwise reliable, the

evidence of witness who had sustained injuries in the incident could

not be discarded merely on the ground that the witness was an

interested person. In the instant case also, as per the MLC Ex.PW6/A

of PW1 Virender Singh and MLC Ex.PW7/A of PW2 Latoori Ram, both of

them sustained injuries in the occurrence. Therefore, their presence at

the spot of occurrence cannot be doubted and their version about the

incident cannot be rejected merely on the ground that they are related

witnesses as for the reason that PW13 Bajinder Singh who turned

hostile and denied having witnessed the occurrence.

15. The learned counsel for the appellant has submitted that as per

the prosecution case, the motive for the crime was an earlier

altercation between PW2 Latoori Ram and the appellant which took

place in the afternoon on the issue of parking of cycle by Latoori Ram

in front of jhuggi of appellant. He has submitted that PW2 Latoori Ram

in his cross-examination has demolished the aforesaid story of motive

by stating that he had no quarrel with Rambir on the day of incident at

12.30 PM. He has also drawn our attention to respective testimony of

PW1 and PW2 who have categorically stated in the cross-examination

that they had no previous enmity with the appellant. Thus, he has

urged us to extend benefit of doubt to the appellant due to lack of

motive in this case.

16. We do not find any merit in this contention. The law in respect of

the motive is well-settled. Though in a criminal trial, motive is a

relevant fact, but in order to bring home the guilt of the accused it is

not necessary that in each and every case the motive must be proved.

More often than not, what impels a man to cause a particular crime is

only within his knowledge. It is difficult to find out the motive, which

led to the commission of a particular crime, in each and every case.

17. In Molu Vs. State of Haryana, 1976 Criminal Law Journal 1895,

the Supreme Court observed thus:

"It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes, however, the motive is shrouded in the mystery and it is very difficult to locate the same. If, however, the evidence of eye witnesses is credit-worthy and is believed by the court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant."

18. From the above, it is obvious that where the positive evidence

against the accused is clear, cogent and reliable, the question of

motive pales into insignificance. Thus, in our considered view, the lack

of evidence to prove motive in this case by itself cannot be taken as a

ground to reject the testimony of the ocular witnesses, which is

otherwise truthful and reliable in view of discussion above.

19. Next submission of the learned counsel for the appellant is that

the recovery of weapon of offence knife Ex.P5 at the instance of the

appellant is highly doubtful and this circumstance casts a shadow of

doubt on the correctness of prosecution case. In support of this

contention, learned counsel for the appellant drawn our attention to

the testimony of PW16 SI Hari Singh, wherein he has stated that on

22.11.1991, the appellant disclosed that he had concealed the knife in

his jhuggi in the space between "kari" and roof of his jhuggi. PW16 SI

Hari Singh had deposed that pursuant to the disclosure statement, he

searched for the knife but it could not be recovered. However,

according to a subsequent pointing-cum-search memo Ex.PW2/B, the

knife was allegedly recovered on 24.11.1991 from the same space

which was searched by SI Hari Singh on 22.11.1991. He has submitted

that had the knife actually been there on 22.11.1991, it would have

been recovered by SI Hari Singh on the same day. Therefore, a

possibility of planting of knife between 22.11.1991 to 24.11.1991

cannot be ruled out.

20. In this regard, it is suffice to say that the learned Additional

Sessions Judge as per the impugned judgment has not accepted the

evidence relating to recovery of knife Ex.P5 on 24.11.1991 at the

instance of the appellant. This, however, does not help the appellant

because it well settled that non-recovery of weapon of offence by itself

cannot be the reason to reject the eye witness account which is

otherwise reliable and truthful.

21. The learned counsel for the appellant has further submitted that

FIR in this case has been manipulated. In support of his contention he

has drawn our attention to column No.5 of the FIR Ex.PW4/B which has

been crossed instead of recording the name and address of the

accused in the said column and submitted that absence of name of the

accused in column No.5 of FIR meant for that purpose raise a strong

doubt that till the time of recording of the FIR Investigating Officer was

not sure of identity of the real culprit.

22. PW4 Head Constable Kulwant Singh, Duty Officer, Police Station

Okhla Industrial Estate, New Delhi has stated in the court that on

22.11.1991, he recorded FIR Ex.PW4/B on the basis of the Rukka

Ex.PW2/A sent by SI Hari Singh. Perusal of the FIR Ex.PW4/B reveals

that it was recorded on 22.11.1991 at 9.40 PM. No doubt in column

No.5 of the FIR, name and address of the appellant as accused has not

been recorded, but perusal of Rukka Ex.PW2/A which is the basis of FIR

Ex.PW4/B shows that the complainant Latoori Ram in his statement

made to SI Hari Singh has named the appellant as the culprit who had

stabbed him, PW1 Virender Singh and the deceased Ram Snehi.

Therefore, it cannot be said that till recording of FIR the identity of the

assailant was not known to the Investigating Officer or that the FIR has

been manipulated to falsely implicate the appellant. Further Head

Constable Kulwant Singh in his cross-examination has explained that

he crossed column No.5 in the FIR Ex.PW4/B as he was not personally

aware about the identity of the accused. The explanation given by him

appears to be reasonable. Thus, we find no infirmity in the FIR which

may lead to the conclusion that it has been manipulated.

23. The learned counsel for the appellant has further submitted that

case of the prosecution is that the appellant was arrested by SI Hari

Singh on 22.11.1991, whereas as per the remand applications dated

24.11.1991, 06.12.1991 and 20.12.1991 the date of arrest is

23.11.1991. He has submitted that aforesaid contradiction about the

date of arrest points towards the tainted investigation and casts a

strong doubt on the correctness of the prosecution case.

24. No doubt, in the above referred remand applications pointed out

by the learned counsel for the appellant, the date of arrest in the body

of the application is 23.11.1991, but it is noticed that but for the

remand application dated 24.11.1991, and also in all the aforesaid

applications just above the signatures of the appellant Rambir date of

arrest is given as 22.11.1991. Further, it is seen that in the first

remand application which was moved on 23.11.1991, the date of arrest

has not been mentioned and in the subsequent remand applications

dated 17.01.1992 and 30.01.1992, the date of arrest of the appellant is

mentioned a 22.11.1991. Therefore, it appears that the confusion

about the date of arrest has occurred because of clerical error. It is

pertinent to mention that even the appellant in his statement under

Section 313 Cr.P.C., in answer to Q. No.7 has stated that he was taken

into custody by the Police on 22.11.1991 which admission set at rest

the controversy about the date of arrest.

25. It is further submitted on behalf of the appellant that the

prosecution has failed to examine the Doctor who prepared MLC of

PW2 Latoori Ram and who conducted the post mortem of deceased

Ram Snehi which has caused prejudiced to the appellant. Perusal of

the impugned judgment would reveal that the benefit of non-

examination of the Doctor concerned has already been extended to the

appellant. The learned trial Judge has convicted the appellant under

Section 307 IPC instead of Section 302 IPC because of the reason that

cause of death of deceased Ram Snehi was not found proved because

of non-production of the Doctor who conducted post mortem on the

body of the deceased Ram Snehi.

26. Learned counsel for the appellant has submitted that the

prosecution has failed to examine the Investigating Officer, SHO

Raghubir Singh, Inspector which has deprived the appellant of his

valuable right to cross-examine him and bring out true facts on record.

This has resulted in grave prejudice to the appellant in his defence as

such he is entitled to benefit of doubt.

27. We do not find any merit in this contention. On perusal of record,

it transpires that there are two Investigating Officers of this case.

Initially and main investigation of the case was conducted by SI Hari

Singh who has been examined as PW16. It is noticed from the record

that almost entire material evidence of this case was collected by SI

Hari Singh and even the statements of the eye witnesses under Section

161 Cr.P.C. were recorded by him and the appellant did get chance to

cross-examine him. In our view, non-production of the subsequent

Investigating Officer who collected formal evidence of the case and

who was instrumental in the alleged recovery of knife at the instance of

the accused which recovery has not been accepted by the learned Trial

Court, is not so material. Therefore, in our considered view, non-

production of the Investigating Officer has not resulted in any serious

prejudice to the defence.

28. It is further submitted that the learned Trial Court ought not have

relied upon testimony of PW1 Virender Singh and PW2 Latoori Ram as

they themselves were suspects in view of the explanation given by the

appellant in his statement under Section 313 Cr.P.C.

29. On perusal of statement of the appellant under Section 313

Cr.P.C., it transpires that the defence of the appellant is that he was

not present at the time of occurrence and when he came back to his

jhuggi after plying three-wheeler scooter on 22.11.1991, he was

informed by persons present near the spot that PWs Virender Singh,

Latoori Ram and Ram Snehi deceased had visited the shop of his wife

with a plan to kidnap her and they had misbehaved with her and in the

process a quarrel erupted amongst them and they stabbed each other

with knives. He also explained that he immediately informed the police

control room at telephone No.100 and went to lodge report at the

Police Station along with Nasib Singh, Ram Gadete and Satbir. He was

assured by the police that they would go with him to the spot but in the

meanwhile PWs Latoori Ram and Virender rushed at the Police Station

with some white collar person and after secretly consulting with them

police allowed them to go and he was detained and falsely implicated.

He also explained that later on, while he was in custody, his wife and

daughter were kidnapped perhaps by a gang. He moved application in

that regard to the police and the court but his wife and children have

not been traced as yet.

30. The learned Additional Sessions Judge rightly on consideration of

evidence did not find the defence of the appellant plausible. He has

discussed the explanation of the appellant and given reason for not

accepting it in para 40 of the impugned judgment, which is reproduced

as under:

"40. He informed the police on P.C.R. and then went to Police Station to lodge the report but the injured persons managed with the police and he was got

implicated in a false case. The defence of the accused is not plausible. No person of the locality has entered into the witness box from the side of the accused to depose that injured persons had their eyes on the wife of the accused. He has said that he went to the Police Station to lodge the report alongwith Nasir Singh and Ram Galte and Satbir. However, none of them has appeared in the witness box in support of his defence. Lady Constable Sunita of PCR has categorically denied that information regarding the incident was given to her on telephone by Rambir. The wife and daughter of the accused are stated to be not living on the given address. They are stated to have been abducted and kidnapped, most probably by the gang, who managed to bring Latoori Ram and Varinder from the Police Station. However, there is no evidence on the file to suggest that any such gang was ever existing. Consequently, much importance cannot be attached to the statement of the accused that he asked the police and made request to the court to direct the police to trace out his wife and daughter. The evidence on the file has not helped in convincing the court about the story as taken in the defence of the accused. Otherwise also, it does not seem plausible that the three injured would cause injury among themselves and then would implicate the accused in a false case especially when the motive of abducting the wife of the accused does not stand to reason. I do not find any force in the defence of the accused."

31. In view of the discussion above, we find no infirmity in the

impugned judgment. We are of the considered view that the learned

trial Judge has rightly relied upon the testimony of eye witnesses to

convict the appellant under Section 307 IPC. The appeal is accordingly

dismissed.

AJIT BHARIHOKE, J.

OCTOBER 08, 2009                                   SANJAY KISHAN KAUL, J.
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