Ravinder @ Babli & Anr. vs State
2009 Latest Caselaw 4417 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+                             Crl. Appeal No. 317/2001

%                          Judgment reserved on: July, 24, 2009
                          Judgment delivered on: October, 30, 2009

RAVINDER @ BABLI & ANR.                 ..... Appellants
             Through : Mr. Anurag Jain, Advocate

                                    VERSUS

STATE                               .....Respondent
                          Through : Ms.Richa Kapoor, APP

CORAM :-
 HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
 HON'BLE MS. JUSTICE ARUNA SURESH

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

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

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


ARUNA SURESH, J.

1. Appellants Ravinder @ Babli and Yogesh @ Sardar have

impugned the judgment of conviction and order on

sentence dated 11.4.2001 vide which they were

convicted for offence under Section 302 of the Indian

Penal Code (IPC) read with Section 27 of the Arms Act

for having committed murder of Madan Lal and were

sentenced to suffer life imprisonment and fine of

Rs.10,000/- each; in default of payment of fine to

undergo simple imprisonment (SI) for a period of five

months for offence under Section 302 IPC and further to

undergo rigorous imprisonment for seven years and fine

of Rs.1,000/- each; in default of payment of fine to

undergo SI for 15 days each for the offence punishable

under Section 27 of the Arms Act. Both the sentences

were ordered to run concurrently.

2. In brief, the prosecution story is that on 27.9.1991 HC

Madhu Nayyar was returning from his duty at about 6.00

P.M. when he received information that in Block No.12

an incident of stabbing was going on. After directing the

informant to go back to the spot HC Madhu Nayyar went

to the Police Station and informed wireless operator HC

Narayan Dutt about the incident with a request to

transmit the information to the SHO. He alongwith HC

Ishwar Singh, Const. Dharam Singh, Const. Yogender

and Const. Kiran Pal reached in between Block No.12

and 18, Kalyanpuri. He saw two boys; one of whom was

holding a knife and the other holding a daab (Gandasa),

were assaulting a person lying in front of House

No.18/319, Aggarwal General Store, Kalyanpuri and

were addressing the injured as Madan Lal and were

saying that they were taking the revenge of their

mothers‟ murder. Both the boys namely, Yogesh armed

with knife and Ravinder armed with Daab were

overpowered and were apprehended along with their

weapons of offence. Sushil Kumar Bharti (the informant)

removed the injured to JPN Hospital in a TSR.

3. On receipt of information about the incident, Inspector

R.S. Nehra (PW-21) reached the spot and arrested both

the accused persons. He took into possession the

weapons of offence, recorded the statement of HC

Madhu Nayyar; Ex.PW-21/A, received a copy of report

No.57-B dated 27.9.1991 of JPN hospital wherein the

injured Madan Lal had been declared brought dead at

6.35 P.M. He made his endorsement on the statement

of Madhu Nayyar and got the FIR of this case registered

and proceeded with the investigation of the case.

4. The trial court framed charges under Section 302 read

with Section 27 of the Arms Act against the accused

persons. Prosecution examined 22 witnesses in support

of its case. Relevant for the purpose of the present

appeal are the eye witnesses and the other

circumstantial evidence gathered by the prosecution

during the investigation of the case.

5. We find it of foremost importance to first consider the

testimony of eye witnesses to the incident.

6. Hukam Singh (PW-2) is the father of deceased Madan

Lal. His examination in chief was recorded on 9.12.1994

i.e. after about three years of the incident. He has

testified that :-

"About three years ago in the evening at 5.00 P.M. I was sitting on a Pulia near my house. Babli (accd.

Babli @ Ravinder pointed towards him) had churra in his hand. He was with his brother Sardar. Sardar had also a churra. Kanhaiya who is in police, came on motor-cycle. He (Kanhiya) was in uniform. Babli and Sardar‟s father also came. Kanhiya and his father gave a bottle to Babli @ Ravinder. I cannot say what was in the bottle. Bottle was given by Kanhiya. Babli had thrown bottle on my son Madan. Madan (He) burnt. Sardar had given churra blows all over the body of Madan, till he died, Sardar did not leave him. At that time, none was present at my house, except me. No one came to save my son.

Babli and Sardar‟s mother had died in a fight. My son Madan was also named as one of the attacker. Madan was released on bail when that incident had occurred.

When Madan became unconscious, Sushil a TSR driver took

him but I did not know where he was taken. I did not accompany him.

Police came when Madan had already died. Madan had gone inside kirayana shop of Aggarwal while running. Both Babli and Sardar forcibly took out Madan from the shop. (To Court: Madan had run after he was thrown something from the bottle. Churra was (churra blow) given before he ran. After taking him out from the shop, both the brother stabbed Madan with churra. Mohalla people came but I cannot tell their names.............."

7. He was declared hostile on behest of the Additional

Public Prosecutor.

8. It is urged by the learned counsel for the appellants that

Hukam Singh has turned hostile and in his cross-

examination he had made contradictory statements

which discredit his testimony and, therefore, his

testimony cannot be accepted in evidence to implicate

the accused persons in this case. True that, Hukam

Singh has made contradictory statements in his cross

examination, when he deposed that there was no

enmity between his family and accused persons and

also that he did not know deceased Madan was involved

in a case under Section 302/34 IPC. However, later on

he did admit that his son Madan was involved in the

murder of mother of the accused persons. He did not

remember whether he had given the time of incident as

4.45 P.M. or 5.45 P.M and if he had given the name of

the accused persons in his statement made to the

police. However, he has explained failure of his

remembrance of the accurate details of the incident

including the name of the accused persons due to his

failing memory. True that, he denied that police had

conducted any proceedings in his presence. It is

relevant that his cross examination was recorded on 2 nd

March, 1996 i.e. after about five years of the incident.

Besides, Hukam Singh is an illiterate person and has

thumb marked his statement. Being father of the

deceased having witnessed the murder of his own son in

front of his eyes found himself helpless because of

disability and just watched the incident. To expect

complete accuracy of details of the incident to be given

by him in such circumstances is not warranted,

especially when in his examination-in-chief he has

corroborated the prosecution case that his son was

stabbed by Babli and later on he was dragged from the

shop by accused Sardar. Hence, complete testimony of

Hukam Singh cannot be discarded as untrustworthy.

9. Mr. Anurag Jain, learned counsel for the appellants has

argued that Hukam Singh‟s testimony cannot be

believed as according to him, he was sitting on a Pulia,

which as per the site plan is at some distance from the

place of the incident and therefore he could not have

witnessed the incident.

10. The incident took place at the crossing of main road of

Block No. 12-18 in gali of Block No.12. Aggarwal

General Store falls in Block No.18 and as per the site

plan is in front of the park. Block No.12 falls diagonally

opposite Block No.18 where Aggarwal General Store is

situate. Hukam Singh is shown at Point 3 on the Pulia

opposite Aggarwal General Store. Distance between the

place where he was sitting and the place of incident is

about 10 meters, according to the site plan on being

roughly measured by foot scale. Site plan does not

indicate any house falling in between the place where

Hukam Singh was sitting and the place of incident, it

being a road. Under these circumstances, the place of

occurrence was clearly visible to Hukam Singh. As per

the statement of Hukam Singh, Madan Lal ran inside

Aggarwal General Store but, was dragged out by the

appellants and was killed in front of the said shop which

was very near to the place, where Hukam Singh was

sitting. Therefore, analysis of the site plan Ex.PW-15/A

demolishes the defense of the appellants that Hukam

Singh had not witnessed the incident of stabbing and

had deposed falsely.

11. Testimony of Hukam Singh finds corroboration from the

statement of Smt. Bhagwati (PW-3). She testified that

accused Ravinder was having a daab in his hand,

whereas accused Yogesh was carrying a churra with him

and they both stabbed deceased Madan Lal with daab

and churra respectively. Smt. Bhagwati (PW-3)

corroborated the prosecution story in all material

particulars including Hukam Singh having raised an

alarm and also arrival of the police at the spot and

apprehension of the accused persons at the spot itself.

She is also a witness to the proceedings conducted by

the police at the spot like lifting of blood with the help of

cotton from the spot, seizure of daab and churra from

the hands of the accused persons, lifting of bloodstained

clothes of Madan from the spot. True that she

mentioned the name of one Prakash who, according to

her, had taken the deceased to the hospital. This is in

contradiction to the prosecution case, according to

which it was Sushil Bharti who had taken the deceased

to the hospital. However, wrong mentioning of name of

the person who took the deceased to the hospital is not

fatal to the prosecution case.

12. At one stage she identified churra Ex.P-1 as the same

which was recovered but changed her statement and

deposed that it was not the same churra and again that,

she could not say whether it was the same churra which

was taken into possession by the police. However, she

identified daab Ex.P-2 as the same which was seized by

the police at the spot. She identified her signatures on

the seizure memo Ex.PW-3-A. Thus, she fully supported

the case of the prosecution.

13. There are minor variations in the statement made by

Smt. Bhagwati under Section 161 Cr.P.C. to the police

and the statement made in the court and also her cross

examination. The fact remains, she was examined after

about 3½ years of the incident as PW-3 and was cross

examined on 11.12.1998 i.e. after about seven years of

the incident and after four years of her examination-in-

chief. With the lapse of time, such like variations

including the name of some of the witnesses or the role

played by anyone of them are natural as a witness

cannot be expected to remember all the details of the

incident minutely. There is always lapse of memory with

the passage of time and a person is bound to forget

minute details if, asked about them after number of

years. We do not find any material contradictions

appearing in the examination-in-chief or cross

examination of this witness which could adversely affect

the prosecution case.

14. Smt. Chandro (PW-6) happened to be mother of the

deceased. She has supported the prosecution case,

when she deposed that the accused persons had given

beatings to her son deceased Madan about six years

back. (As her statement was recorded on 13.3.1997).

They laid him on a cot and assaulted him with daab and

knife. Since she did not support the prosecution case in

totality regarding the other part of the incident, the trial

court declared her hostile on behest of the learned APP

for the State. She did admit in her cross examination by

the accused persons that, deceased Madan was facing

trial for an offence under Section 302 IPC for having

alleged murder of Maina Devi; mother of the accused

persons.

15. The star witness of the incident is Sushil Kumar (PW-12)

he was also partially examined as PW-1. However, since

he has been examined as PW-12, his statement as PW-1

has not been taken into consideration as it does not

reflect on the incident in question. Sushil Kumar was

running a parchoon shop at 12/16, Kalyan Puri. He has

testified that on 27.9.1991 he was present at his shop

when he heard the noise of Hukam Singh, his uncle

(Tau), who was crying and therefore he came out of his

shop. He saw the deceased sitting on the cot outside

the house and accused Ravinder armed with daab and

accused Yogesh armed with churri were stabbing Madan

Lal. He ran towards Police Station Kalyanpuri and he

spotted a police Jeep. He told the driver of the Jeep

about the incident and he was instructed by the driver to

go to the spot with the assurance that he would be

coming soon with other police staff. He has deposed

that when he reached the spot, he saw Madan Lal lying

in an injured condition near gate of Aggarwal General

Store and Ravinder and Yogesh were still stabbing

Madan Lal. Within few minutes police reached there and

apprehended the accused persons. Since Madan Lal

was fighting for life, he stopped a three wheeler scooter

and took him to JPN hospital with the help of police

where the doctor declared him dead. In the cross

examination he deposed that he did not find Hukam

Singh at the spot but had seen him sitting on a nearby

pulia and was crying. According to him the pulia must be

at a distance of 30-35 ft. This witness has stood the test

of examination and cross examination.

16. Sushil Kumar Bharti was not present at the spot when

the rukka was sent to the Police Station for registration

of the case as he had already removed the injured to the

hospital and had reached JPN hospital, where the doctor

declared Madan Lal 'brought dead' vide MLC

No.90648/91 (Ex.PW-20-A) at 6.35 P.M. i.e. before the

arrival of the police party at the spot. Rukka was sent to

the Police Station at about 8.00 P.M. Rukka finds

mention of the said MLC. Naturally, therefore, he was

silent about the rukka having been sent to the Police

Station for registration of the case.

17. Contradictions highlighted by the learned counsel for the

accused persons in the cross examination of this witness

are trivial in nature. In fact, we do not find any

contradictions appearing in the cross examination of this

witness on material particulars. Insignificant

contradictions or variations are of no consequence as

they cannot come to the rescue of the accused persons.

18. Om Pakash (PW-16) is completely hostile.

19. Besides, these public witnesses, some of the police

officers, namely, Constable Dharam Singh (PW-9),

Constable Kiran Pal (PW-11), Head Constable Ishwar

Singh (PW-13) and Const. Yoginder Singh (PW-14) who

happened to reach the spot along with Constable Madhu

Nayyar and had witnessed the stabbing of the deceased

by the accused persons, have fully corroborated the

prosecution case. Unfortunately, Head Constable Madhu

Nayyar who is the complainant could not be examined

because he had expired before he could be summoned

as prosecution witness.

20. Learned defence counsel has argued that Constable

Dharam Singh did not go to the spot as he is not a

witness to the seizure memos of knife and Daab Ex. PW-

13/B and Ex.PW-13/C. In his cross examination, he

deposed that statement of Hukam Singh was recorded in

his presence. He was confronted with the memo of

seizure of daab which did not bear his signatures.

Simply because the memo did not bear the signatures of

Const. Dharam Singh, does not discredit his testimony

that he was present at the spot and had witnessed the

incident. It is not necessary that all the witnesses to the

incident must also sign the seizure memo prepared at

the spot. Similarly, because Const. Dharam Singh did not

speak of Sushil Kumar (PW-12) or his removing the

deceased in TSR to the hospital does not in any manner

demolishes his testimony.

21. Learned counsel for the accused persons has highlighted

certain discrepancies which have appeared in the cross

examination of HC Ishwar Singh (PW-13) like:-

"......Driver of his own proceeded to the spot. Driver did not tell anything to me why he was proceeding to the spot. No information was received by driver Madhu Nair, H. Constable regarding the incident. Madhu Nair the driver also did not inform other staff in front of me as to where he was proceeding and why he was proceeding. We reached the spot in five seven minutes from 5:40 P.M. .......... "

And also that :-

"..........The incident continued for four-five hours in our presence. The signatures of deceased were taken on the recovery memo of the daw and dagger but I do not know the name of that............"

22. What can be inferred from his cross examination is that

Madhu Nayyar did not tell him as to why they were

proceeding to the spot but it does not demolish his

testimony that he had gone to the spot along with

Madhu Nayyar and other police officials. It has come in

evidence that HC Ishwar Singh was working as Moharrar

Malkhana at the relevant time but had joined the police

party because of scarcity of staff in the Police Station.

23. Learned counsel for the accused persons has argued

that Hukam Singh (PW-2), Smt. Bhagwati (PW-3), Smt.

Chandro (PW-6), Om Prakash (PW-16) are hostile and

are unworthy of credit, therefore, their testimony cannot

be read against the accused persons to bring home their

guilt.

24. It is no longer res integra that part of the testimony of a

hostile witness, which corroborates the prosecution

story, is admissible in evidence and can be considered

by the trial court, provided it inspires confidence.

However, the testimony of such a witness is subject to

close scrutiny and a portion thereof which is consistent

with the case of the prosecution or defence can be

accepted. Simply because the witness is partially hostile,

his testimony cannot be discarded as unworthy of credit.

The principle 'falsus in uno, falsus in omnibus‟ is not

applicable in India.

25. In 'JodhrajSingh vs. State of Rajasthan, 2007

Crl.L.J. 2942', it was observed:-

"........Moreover, while recording a judgment of conviction, the court may consider a part of the deposition of a witness who had been permitted to be cross-examined by prosecution having regard to the fact situation obtaining in the said case. How the evidence adduced before it shall be appreciated by the court would depend on the facts and circumstances of each case."

26. In 'State of U.P. v. Ramesh Prasad Misra & Anr.,

1996 Crl.LJ 4002', it was observed:-

"7. The question is whether the first respondent was present at the time of death or was away in the village of DW 1, his brother-in-law. It is rather most unfortunate that these witnesses, one of whom was an advocate, having given the statements about the facts within their special knowledge, under

Section 161 recorded during investigation, have resiled from correctness of the versions in the statements. They have not given any reason as to why the investigating officer could record statements contrary to what they had disclosed. It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.............."

Reliance is also placed on 'Balu Sonba Shinde vs.

State of Maharastra, 2002 (7) SCC 543'.

27. In the present case PWs Hukam Singh (PW-2), Smt.

Bhagwati (PW-3) and Smt. Chandro (PW-6) are in unison

in their testimonies when they deposed that accused

Ravinder @ Babli and Yogesh @ Sardar brutally and

indiscriminately stabbed deceased Madan Lal outside his

house after dragging him out from the shop of Aggarwal

General Store, where he had ran away to save himself.

They are also consistent with each other regarding the

seizure of weapons of offence at the spot from the

hands of the accused persons by the Investigating

Officer. Some of the police officials, namely, Head

Constable Ishwar Singh, Constable Dharam Singh,

Constable Yogender and Constable Kiran Pal, other eye

witnesses have in unequible terms corroborated the

independent witnesses.

28. In the present case, the eye witnesses though declared

hostile at the instance of Public Prosecutor, have

supported the prosecution case. Out of these witnesses

two also received injuries, namely, Bhagwati and

Chandro. Their presence at the spot, under the

circumstances, cannot be doubted. Besides, the

testimony of all the abovesaid witnesses finds full

corroboration from the testimony of Sushil Kumar Bharti

(PW-12).

29. Declaration of the witnesses as hostile at the instance of

Public Prosecutor does not ipso facto reject their

evidence. On assessment of creditworthiness of the

witnesses and the other evidence on record, we find no

force in the submissions of the learned counsel for the

accused persons that the trial court should not have

accepted the evidence of eye witnesses, who are hostile

witnesses.

30. Under the circumstances, part of evidence of the above

said witnesses which is advantageous to the

prosecution, has been rightly accepted by the trial court.

Reliance has been placed in an extreme cautious and

circumspect manner. On analysis of the evidence, we

do not find ourselves in dis-agreement with the trial

court.

31. In a murder case based on direct eye witnesses account

it is necessary for the court to thoroughly examine the

testimony of eye witnesses in order to ascertain whether

they had actually seen the occurrence and whether the

statement given by them appears to be natural and

truthful and finds corroboration from the medical

evidence on record. The testimony of eye witnesses

also finds corroboration from the medical as well as

forensic evidence on record.

32. Dr. P.C. Dixit (PW-19) found 39 injuries on the person of

the deceased. As per his postmortem report Ex.PW-19/A

following injuries were found fatal:-

"...... Injury No.1: Chopped wound 7x2x1.05 cm obliquely placed over right priyatal region 4 cm behind right ear and 5 cm right to midline underneath bone was cut.

Injury No.2: Chopped wound 9.5 x 2.5

x 1.8 over right pirayatal region obliquely placed 1.5 cm in front of injury no.1. Underneath the bone was cut.

Injury No.3: Chopped wound 3 in numbers arranged in „Z‟ shaped of the size front 8.1 x 1.5 cm underneath bone was cut oblique one 10.2 x 2 cm bone deep and the back one 5.5. x 2x bone deep centimeters. Override front of pirayatal region 1.5 cm above the right eye brow just right to midline end 1 cm in front of injury No.2.

Injury No.36: Incised stabbed wound 2.5 cm x 1 cm obliquely placed over upper outer part of left side chest 6.5 cm above and outer to left nipple, 4 cm below and inner to enterior oxilary fold. The inner angle is acute and outer one was obtuse. The wound was chest cavity deep. The lower angle was 131 cm above left heel.

Injury No.38: Incised stabbed wound 3.5 x 2cm obliquely placed over right side lower part of chest 5.5 cm below and oyter to right nipple and 12 cm below the enterior axilary fold. Upper angle was acute and lower angle was obtuse. The wound was chest cavity and going up abdominal cavity. The lower angle was 110 cm above the right heel.

Injury No.39: Incised stabbed wound 3.1 x 1.5 cm obliquely placed over right side upper abdomen 11 cm just below the right nipple and 11 cm right to midline. The upper angle was acute and the lower angle was obtuse. The wound was abdominal cavity deep. The lower angle was 108 cm above right heel........."

33. After examination of the injuries, he further opined:-

"...........As regards the opinion regarding cause of death is concerned, it was due to haemorrhage and shock as a result of stab injury to left lung via injury No.36 and right lung and lever via injury No.38 and right kidney as well as adrenal gland via injury No.39 alongwith head injury via injury No.1 to 3. All the injuries were ante-mortem and recent in duration and injuries No.1,2,3,6,7,9,10,21,22,31 could be caused by heavy sharp cutting edged weapon. As regards injury No. 25,26,36,38,39 are concerned these can be caused by a sharp cutting single edged stabbing weapon. Injury No.4,8,13,14,15 to 19 and 20,23,24, 27,28,29,30 & 32 could be caused by a heavy cutting weapon or by a cutting stabbing weapon and injury No.11,12,33,34,37 could be caused by a pointed end of cutting/stabbing weapon; injury No.5 & 35 could be caused by blunt force impact. Injuries No.1,2,3,36,38,39 were sufficient to cause death in the ordinary course of nature individually as well as collectively. As regards the weapon of offence is concerned, it seems that two weapons were used........."

34. I find the report of Dr. Dixit also containing the detailed

diagram of injuries (Ex.PW-19/B). He has testified his

signatures on the report as well as on the diagram.

Thus, from his report, it is clear that two weapons were

used for stabbing the deceased.

35. The Investigating Officer also obtained the opinion of Dr.

Dixit, after producing the weapons of offence and

clothes of the deceased, to ascertain if the injuries found

on the person of the deceased can be caused by the

said two weapons. Dr. Dixit was of the opinion that

Injuries No.18,19,20,23 & 24, 25,26,27, 36 & 38 could be

caused by weapons of offence Ex.P-1 and P-2. He also

prepared the sketch of these two weapons in his report

Ex.PW-19/C. He also found corresponding cut marks on

the clothes of the deceased, which could be possible

with the said weapons Ex.P-1 and P-2.

36. Dr. Bhupinder Kumar (PW-20) had prepared the MLC on

27.9.1991 after examination of deceased Madan Lal. His

report fully corroborates the postmortem report Ex.PW-

19/A. The weapons of offence, clothes of the deceased

and that of the accused persons were sent to CFSL

alongwith blood sample, blood lifted from the spot with

the help of cotton, hair of the deceased recovered from

the spot for forensic opinion. The report of Mr. C.M.

Patel, Senior Scientific Officer, CFSL indicate that human

blood was found on all the articles as above except hair.

The blood was found to be of „A‟ group. Weapons of

offence Churra Ex.P-1 and Dab Ex.P-2 were also found to

have human blood of „A‟ group, so were the clothes of

the deceased and that of the accused persons. The

forensic expert opinion, therefore, fully corroborates the

prosecution case. Pertinently, the weapons of offence

were seized from the accused persons by Insp. R.S.

Nehra (PW-21) at the spot.

37. Thus, from the medical evidence also it is proved that

accused persons had brutally and indiscriminately

stabbed deceased Madan Lal with Churra and daab.

Naturally, therefore, none of the witnesses could have

deposed as to which accused inflicted which injuries on

which part of the body of the deceased causing as many

as 39 injuries.

38. Learned counsel for the accused persons has argued

that the witnesses have given different timings of the

incident. As per PW-12 it was 5.45 P.M. whereas PW-12

met Madhu Nayyar at 6.00 P.M. According to Const.

Dharam Singh (PW-9) Madhu Nayyar had reached Police

Station at 6.14 P.M. whereas Const. Yoginder Singh (PW-

14) reached the spot at 6.20 P.M.

39. Undoubtedly, there are variations regarding the timing

of the incident, the time of receipt of information, arrival

of the police staff at the spot including the Investigating

Officer. In DD No.55-B Ex.PW-7/B it is recorded that HC

Narayan Dutt operator had informed at Police Station

Kalyan Puri at 6.14 P.M. about the information received

by him from HC Madhu Nayyar. Thus, it is clear that HC

Narayan Dutt himself had received information from

Madhu Nayyar before 6.14 P.M. The time given by

Const. Dharam Singh (PW-9) in his statement as 6.14

P.M. seems to have been made on the basis of DD

No.55-B recorded at 6.20 P.M.

40. DD No.56-B indicate that a woman named Chandro wife

of Hukam Singh had reached Police Station and was

nervous, and was screaming having injuries on her face.

She was sent to SDN hospital. Chandro happened to be

the mother of the deceased. This explains why Chandro

was not found to be present at the spot when police

reached there as she had left for the Police Station to

lodge her complaint. Variations in the timings, as

recorded in the statement of PW-12, PW-9 and PW-14

are insignificant. None of these witnesses had seen the

wrist watch or any other clock to know the time of

incident. Timing has been given by them on the basis of

their personal perception and assessment.

41. Learned counsel for the accused persons has

emphasized that nobody came to the rescue of the

deceased and none of the family members went to the

hospital. It has come in the statement of Hukam Singh

that no family member was present in the house at that

time. It has come in the testimony of Sushil Kumar (PW-

12) that no family member was available in the house of

the deceased and he himself was nervous and therefore

he ran towards the Police Station. Hukam Singh, in his

cross examination has deposed that he is handicapped

by one hand and one leg and cannot run. Being

handicapped and traumatized seeing his son being

stabbed by accused persons, he started crying but could

not go to rescue him.

42. It is urged that PW-2, PW-3, PW-6 do not refer to PW-12

or PW-16. However, again this is insignificant. Hukam

Singh (PW-2) did state in his statement that when

Madan Lal became unconscious Sushil took him in a TSR.

PW-3 due to lapse of time has incorrectly given the

name of PW-12 in her statement as Prakash. Smt.

Chandro (PW-6) did not fully support the prosecution

case because she herself was injured and traumatized

and had run towards the Police Station before the

deceased could be removed to the hospital.

43. As regards non mentioning of name of Om Prakash (PW-

16) suffice would be to say that he is totally hostile and

his testimony cannot be considered for any purpose.

Therefore, non-mentioning of his name by other

witnesses is insignificant under the circumstances of this

case.

44. It is urged by the learned counsel for the accused

persons that the clothes of Madhu Nayyar and that of

Sushil Kumar (PW-12) were not seized by the police and

therefore non-seizure of their clothes creates a doubt, if

at all these two persons were present at the spot and

had witnessed the incident. Since the police had seized

the clothes of the accused persons at the spot and also

of the deceased from CMO after his postmortem was

conducted, there was hardly any need for the

Investigating Officer to seize the clothes of Madhu

Nayyar or Sushil Kumar Bharti, especially when the

presence of these two witnesses at the spot having

witnessed the incident is fully proved on record from the

testimony of other witnesses, who were also present

there and who are also the eye witnesses to the

incident.

45. Undisputedly, none of the police officers accompanied

the deceased and Sushil Bharti to the hospital. Under

the circumstances, naturally so, as two of the police

officers had apprehended one accused and other two

had apprehended the other accused. Insp. R.S. Nehra

reached the spot at about 6.30 P.M. The deceased had

already been removed to the hospital before his arrival.

Only officers available at the spot were four Constables

and HC Madhu Nayyar. On analysis of the

circumstances, it is obvious that none of the police

officers could have accompanied Sushil Kumar Bharti to

the hospital lest any of the accused persons succeeded

in running away.

46. The trial court found the following established facts

against the accused persons:-

".....Thus there are the following established facts. In the first place the two accused were arrested at the spot. Secondly, their clothes with blood stains were seized by police.

Thirdly, the blood stains are found to be of human origin of group A i.e. same as that of the deceased. Fourthly, the weapons viz the CHURRI and the DAO were seized from the accused. Fifthly, the weapons had stains of human blood of group A. Sixthly, the medical evidence is that the injuries on the person of the deceased were possible by the two weapons........."

47. We find ourselves in agreement with the findings of the

trial court as above.

48. Learned counsel for the accused persons has made futile

efforts to demolish the prosecution case when he

submitted that DD No.55-B Ex.PW-7/B does not find

mention of names of the accused. The information

received by Constable Madhu Nayyar was regarding a

stabbing incident taking place in between Block No.12-

18, Kalyanpuri. At that time Sushil Bharti (PW-12) the

informant had not disclosed the name of the accused

persons and also of the deceased. Obviously, under the

circumstances DD does not find mention of the name of

the accused persons. Non-disclosure of name of the

informant by PW-2, PW-3 and PW-6 does not in any

manner dent the prosecution case fully established on

the record.

49. Accused Ravinder has tried to set up a plea of alibi. He

has produced Kanwar Pal (DW-1) to support his case.

This defence was raised by the accused only in his

statement recorded under Section 313 Cr.P.C. and

thereafter while producing his evidence. It is of

importance that accused Ravinder never took this plea

during examination and cross examination of the

prosecution witnesses. Therefore, the trial court was

right when it observed that plea of alibi appeared to

have been taken by the accused as an afterthought.

The court rightly discarded the statement of Kanwar Pal

(DW-1) when it observed that the entries Ex.DW-1/DA

and DW-1/DB are not signed by anyone and the scribe of

the entries was not examined and therefore, the

handwriting of the entry was not proved in evidence.

50. The prosecution has been successful in establishing that

eye witnesses, namely, Hukam Singh (PW-2) and Smt.

Chandro (PW-6), Sushil Kumar Bharti (PW-12) had

actually witnessed the incident. They identified the

accused persons as the assailants. The circumstantial

evidence also proves that weapons of offence Ex.P-1 and

P-2 were used by the accused persons in assaulting the

deceased brutally. The motive behind the crime is

obvious, as the deceased was one of the accused

persons facing trial for the murder of mother of the

accused persons. The prosecution has not left any

loophole which could be used as an escape route by the

accused persons to warrant an acquittal.

51. In view of our discussion as above, we conclude that the

trial court rightly convicted the accused persons for

having committed the offence under Section 302/34 IPC

read with Section 27 of the Arms Act. The appeal under

the circumstances being without any merits is hereby

dismissed.

ARUNA SURESH, J.

PRADEEP NANDRAJOG, J.

OCTOBER 30, 2009 vk