Raju @ Battu vs State Of Delhi
2010 Latest Caselaw 491 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

                        CRL. APPEAL NO. 110 OF 1997

%                               Judgment reserved on: 22th January, 2010
                                Judgment delivered on: 29th January, 2010

       RAJU @ BATTU                                    . . . APPELLANT
                          Through:          Mr. K.B. Andley, Senior Advocate
                                            with Mr. M.L. Yadav, Advocate.

                                VERSUS

       STATE OF DELHI                                . . .RESPONDENT
                    Through:                Mr. Pawan Sharma, Standing
                                            Counsel.

       CORAM :-
       HON'BLE MR. JUSTICE A.K. SIKRI
       HON'BLE MR. JUSTICE AJIT BHARIHOKE

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


       AJIT BHARIHOKE, J.

1. This appeal is directed against the judgment of learned Additional

Sessions Judge dated 12.02.1997 vide which the appellant Raju @

Battu and his co-accused Dharmender have been convicted for the

offence of murder of Rajiv @ Kale (herein after referred to as

„deceased‟) and the order on sentence dated 13.02.1997 in terms of

which the appellant as well as his co-accused was sentenced to

undergo rigorous imprisonment for life and to pay a fine of Rs.500/-

each and in default of payment of fine, to undergo RI for further

period of one month each.

2. Briefly stated the case of prosecution is that on 26.09.1993 at about

11.00 p.m., the deceased was brought to the casualty of GTB Hospital,

Delhi by his brother Ajay, PW7with the history of assault with sharp

weapon. He was attended to by Dr.Sanjay Sharma, who found two

incised wounds on the person of the deceased and prepared the MLC

Ex.PW13/A. The duty Constable present at GTB Hospital conveyed

the information about the admission of injured Rajiv @ Kale to the

police station which was recorded as DD No.17A (Ex.PW10/A) by

the Duty Officer Head Constable Kishan Chand Harit, PW10.

3. The DD report recorded that Pramod Kumar, Duty Constable

No.767/NE has informed over telephone from GTB Hospital that

"Rajiv @ Kale, S/o Gopal Singh, aged 18 years, resident of 750,

Rehman Building, Shahdara, who was stabbed at his house has been

got admitted to GTB Hospital in injured condition by his brother.

Some officer may be sent".

4. The Duty Officer sent the copy of DD report through Constable

Dharampal to S.I. Rakesh Kumar. ASI Raj Kumar also left the police

station for GTB Hospital. On receipt of copy of the DD report, PW8,

S.I. Rakesh Kumar reached at the GTB Hospital along with Constable

Dharampal and Constable Bir Bhan and collected the MLC of the

deceased Rajiv Ex.PW13/A, who was declared unfit for statement.

Ajay Kumar, PW7 was available at the hospital so S.I. Rakesh Kumar

recorded his statement Ex.PW8/A and sent it to the police station after

appending his endorsement thereon, through Constable Bir Bhan for

the registration of the case. On the basis of said statement, formal

FIR under Section 307/34 IPC was registered against the appellant

and his co-accused Dharmender and the investigation was handed

over to the SHO Inspector Ranjit Singh.

5. From the hospital, S.I. Rakesh Kumar went to the spot of occurrence

and prepared the rough site plan Ex.PW8/B on the pointing of PW7,

Ajay. In the meanwhile, SHO Inspector Ranjit Singh also reached at

the spot. Blood was noticed on the ground at the place of occurrence.

The SHO lifted the blood stained earth as also the control earth from

the spot, which was seized vide memo Ex.PW7/A. The deceased

expired on the same night at 12.15 a.m., which information was

conveyed by Duty Constable Pramod Kumar to the police station and

it was recorded as DD No.64B (Ex.PW11/A) and a copy thereof was

sent to the Investigating Officer, who was present at the spot.

6. Co-accused Dharmender was arrested by Inspector Ranjit Singh on

27.9.1993 from his house located in Rehman Building. The appellant

was arrested on 30.9.1993. During investigation, appellant Raju, on

01.10.1993, led the police party to his house No.E-4/140, Nand Nagri

and got recovered his t-shirt Ex.P1 which he was wearing at the time

of the incident, which was taken into possession vide memo

Ex.PW8/D. The appellant also pointed out the place of occurrence to

the police vide memo Ex.PW8/E and he got recovered the weapon of

offence i.e. churri Ex.P5 from under the bushes in the north-west

corner of Tikona Park. Sketch of the churri Ex.PW8/G was prepared

and the churri was taken into possession vide memo Ex.PW8/F after

converting it into a sealed parcel. The SHO conducted the inquest

proceedings and sent the dead body for post mortem. The blood

stained pant and shirt of the deceased were preserved and sealed by

the doctor who conducted the post mortem and were handed over to

the Investigating Officer.

7. As per the post mortem report, the deceased had suffered following

injuries:-

(1) incised stab wound, spindle shaped with one angle more acute than other stitched with 7 interrupted sutures of size 7.5x1.5x cavity deep cm placed in third intercostals space in right side chest 6.5 cm below sternal notch and 7.5 cm above right nipple. The wound was going backwards medially and down-wards cutting the skin. Subcutaneous tissue lower border of second rib intercostals muscles and blood vessels, pleura going upto anterior surface of upper lobe of right lung by producing an incised wound of 4x0.3x0.5 cms. blood was present in and around the wound.

(2) incised stab wound of size 4.5x1.2x9 cms placed on right side back 5.5 cms lateral to mid line and 11 cms posterior to left anterior superior iliac spine. Margins regular sharp spindle shaped with one angle more acute than other directed downwards outwards and anterior cutting the skin and going between the musslce mass. Blood was present in and around the wound.

According to Dr.S.K. Verma, PW16, time since death was 10 hours

and the cause of death was shock due to haemo pneumo thorax as a

result of injury no.1, which was caused by a sharp weapon. The

doctor opined that injury no.1 was sufficient to cause death in the

ordinary course of nature. The post mortem report is Ex.PW16/A.

8. On completion of formalities of investigation, the appellant and his

co-accused were challaned for having committed the murder of Rajiv

@ Kale. They were charged for having committed the offence

punishable under Section 302 IPC read with Section 34 IPC. The

appellant as well as his co-accused pleaded not guilty and claimed to

be tried.

9. The prosecution, in order to bring home the guilt of the appellant as

well as his co-accused, examined as many as 19 witnesses. The

prosecution case is based upon the ocular testimony of PW1 Vijay,

who is an independent witness and PW6, Amit Kumar and PW7, Ajay

Kumar, brothers of the deceased. PW1, Vijay, who has claimed to be

the eye-witness of the occurrence, has not supported the case of the

prosecution and instead he has stated that on 26.9.1993, at about

10.30/10.45 p.m., while he was taking meals along with PW Amit in

his house, the deceased Kale came from outside. He was holding his

abdomen with his hands and requested them to take him to the

hospital. PW7 Ajay, who was upstairs at that time, came down and

took him to the hospital. In his cross-examination by the learned

APP, he denied the suggestion that actually the accused Dharmender

had caught hold of the deceased and the accused Raju (appellant) gave

him the knife blow.

10. PW6, Amit Kumar was examined on two dates. In his examination-

in-chief recorded on 18.10.1994, PW6 stated that on 26.09.1993 at

about 10.00 p.m. while he and his brother Rajiv were taking meals,

the appellant and his co-accused came and called Rajiv and he left the

house with them. He (witness) then sent his neighbours Vijay, PW1

and Balwant after them and he claimed that he had not seen the

incident of stabbing. His further examination was deferred by the

learned Additional Sessions Judge, as on that date, prosecution was

not present in the Court. However, when PW6, Amit Kumar was

examined on 23.12.1994, he, in his examination-in-chief, supported

the case of the prosecution by stating that both the accused had called

his brother and he also followed them and he saw that accused

Dharmender had caught hold of his brother and appellant Raju

stabbed him on his chest with a knife. In answer to a court question

to clarify the above referred inconsistency in his two statements, he

stated that his version dated 18.10.1994 was incorrect and his

explanation for that was that it was his first occasion to appear in the

Court and thereafter he said that he was not under any fear while

appearing as a witness on 23.12.1994. From the above explanation, it

appears that perhaps the witness wanted to say that error of fact

occurred in his testimony dated 18.10.1994 as he was nervous. This

witness also stated that on an earlier occasion on 23.9.1993, when

VCR was being played in the gali in front of his house, the appellant

and his co-accused started behaving in an obscene manner, which was

objected to by the deceased, who turned both of them away. This is

the suggested motive for the crime.

11. PW7, Ajay Kumar, in his complaint Ex.PW8/A had stated to the

Investigating Officer that on the night of 23.9.1993, they were seeing

a movie on VCR/TV at their house. The appellant Raju and his co-

accused Dharmender were also watching the movie. They were

intermittently making obscene gestures to which the deceased took an

offence and forbade them. The appellant and his co-accused took

offence to the said act of the deceased and left the house. He also

stated in the complaint that on 26.9.1993, at about 10.30 p.m., the

appellant and his co-accused came to his house and called the

deceased. The deceased went out with them and apprehending that

the appellant and his co-accused may not cause any harm to the

deceased, he and his brother Amit @ Banti followed them. In the

gali, accused Dharmender, all of a sudden, caught hold of the

deceased to restrain him and the appellant inflicted knife blows on

him. They raised alarm and tried to apprehend the accused person,

but they fled away from the spot. PW7, Ajay Kumar in his testimony

more or less reiterated his version given in the complaint Ex.PW8/A.

He also stated that the accused Dharmender was arrested by the police

from Durgapuri Chowk and the appellant Battu surrendered before the

police. On interrogation, the appellant made a disclosure statement

regarding concealment of the weapon of offence and pursuant to that

he got the knife recovered from a park. He also identified a t-shirt

belonging to the appellant. He also identified the blood stained pant

and shirt belonging to the deceased. He further stated that the IO

seized the blood stained earth and sample earth from the spot of

occurrence vide memo Ex.PW7/A. In his cross-examination, he

stated that the knife Ex.P5 was not recovered in his presence.

12. PW12, Head Constable Jagvir Singh is the duty officer who registered

the formal FIR Ex.PW12/A on the basis of the rukka Ex.PW8/A. He,

in his cross-examination stated that copy of the FIR was not

immediately sent to the senior officers through special messenger,

though copies were sent to the area Magistrate and the DCP on the

next day through dak. We may note that no explanation has been

given for not sending the special report immediately to the superior

officers, including the Magistrate. This circumstance casts a shadow

of doubt on the investigation and leaves a scope for possible

manipulation of the FIR in the intervening period till the special report

was sent to the superior officers.

13. PW8, S.I. Rakesh Kumar and PW19, Inspector Ranjit Singh are the

other important witnesses who conducted investigation at one stage or

the other.

14. We may note at this stage that co-accused Dharmender, who had also

filed an appeal against his conviction, expired during the pendency of

his appeal, therefore, it is not necessary to refer to his statement under

Section 313 Cr.P.C. or his defence. The appellant in his statement

under Section 313 Cr.P.C. has denied the prosecution version. He has

claimed that he was picked up from his house on the night of

26.9.1993 at around 2.00 a.m. and taken to the police station where he

was beaten and his signatures were obtained on blank papers. After

illegally detaining him for three days, the police produced him before

the Magistrate and he was remanded to judicial custody. According to

the appellant, he has been falsely implicated by the police, though he

claimed that he had no ill will or enmity with anyone.

15. One Smt.Dhani Devi was examined in defence. She has stated that

the deceased was a bad character of the area and he had burnt his

father by pouring kerosene on him. She also stated that the appellant

and his co-accused were persons of good moral character.

16. Learned Trial Court, relying upon the ocular testimony of PW6, Amit

Kumar and PW7, Ajay Kumar found the appellant and his co-accused

guilty of murder of Rajiv @ Kale and convicted both of them on the

charge of Section 302 IPC read with Section 34 IPC.

17. Learned counsel for the appellant has submitted that learned Trial

Court has erred in appreciation of the evidence as he has ignored the

fact that the only purported independent witness to the occurrence,

PW1 Vijay Kumar has not supported the case of the prosecution and

his testimony, if taken into account, rules out any possibility of PW6

and PW7 being the eye-witnesses to the occurrence. He further

submitted that even PW6 Amit Kumar, when he was initially

examined on 18.10.1994, denied having seen the incident and

according to him while he and PW Vijay Kumar were having meals in

his house, the deceased came from outside holding his abdomen and

requested them to take him to the hospital, on which PW7 Ajay

Kumar came from upstairs and took him to the hospital. Learned

counsel submitted that something transpired between 18.10.1994 and

23.12.1994 when Amit Kumar was recalled for further examination-

in-chief which made him to take a somersault to support the

prosecution version. Learned counsel has pointed out that even the

explanation given by PW6 regarding the contradiction on such

material aspect of the case, which has been referred to above, is not

acceptable. Thus he has urged us to conclude that initial version of

PW6, which rules out any possibility of even the complainant having

witnessed the occurrence, should be taken as true or at least it should

be inferred that PW6, who has been blowing hot and cold, is not a

reliable witness. As regards the testimony of PW7, learned counsel

for the appellant has submitted that perusal of the MLC Ex.PW13/A

of the deceased shows that PW7 had taken the deceased to the

hospital. Despite of that, in the history recorded in the FIR, it is

mentioned "h/o assault by sharp weapon". Learned counsel for the

appellant has submitted that had PW7 been the witness to the

occurrence, it is highly improbable that he would not have given this

information about the name of the assailants to the doctor at the time

of preparation of the MLC. Thus, according to him, absence of name

of the appellant and his co-accused as assailants in the MLC is

sufficient to infer that PW7 is not an eye-witness and he was not even

aware of the identity of the assailants till the preparation of the MLC.

Learned counsel has also drawn our attention to the DD report

Ex.PW10/A i.e. DD No.17A dated 26.9.1993, which was recorded on

the basis of information conveyed to the police station by the duty

constable posted at GTB Hospital. As per this DD report, the duty

officer had informed that Rajiv @ Kale, son of Gopal Singh, aged 18

years, resident of 750, Rehman Building, Shahdara, who was stabbed

at his house had been admitted to the GTB Hospital in injured

condition by his brother. Learned counsel has submitted that if this

DD report is to be believed, then all the details about the deceased

must have been given to the duty constable either by the deceased

himself or by the complainant because there could have been no other

source to provide that information to the duty constable. Learned

counsel for the appellant has submitted that if the above information

regarding the parentage, age and address of the injured could be given

by the complainant Ajay, PW7, then nothing prevented him from

disclosing the name of the assailants in the information if he actually

was the eye-witness to the occurrence and was aware of the name of

the assailants. In view of the said circumstances, learned counsel for

the appellant has urged us to reject the testimony of PW6 and PW7

and extend the benefit of doubt to the appellant.

18. Learned counsel for the State obviously has argued in support of the

impugned judgment. According to him, PW7, Ajay Kumar has fully

supported the case of the prosecution and his version stands

corroborated by the testimony of PW6, Amit Kumar who has also

deposed in more or less similar fashion. Learned prosecutor has

submitted that from the MLC it is clear that PW7 took the deceased to

the hospital, which is sufficient assurance that he must have been the

witness to the occurrence, because the injured was admitted in the

hospital at 11.00 p.m. i.e. within half an hour of the occurrence, which

took place at 10.30 p.m. as per the rukka Ex.PW8/A, which

circumstance is sufficient assurance that PW7 was actually the eye-

witness to the occurrence. Regarding the two contradictory versions

in the examination-in-chief of PW6, Amit Kumar, learned counsel for

the State has submitted that it can be attributed to a slip of tongue,

which occurred because the witness perhaps was overawed because of

the atmosphere in the Court as it was his first occasion to appear in the

Court. Learned counsel also submitted that Section 225 of the

Criminal Procedure Code mandates that in every trial before a court of

session, the prosecution shall be conducted by a public prosecutor.

He has pointed out the Court‟s observation at the end of testimony of

PW6, Amit Kumar dated 18.10.1994, wherein it is mentioned that his

further examination is deferred because of non-availability of the

prosecutor in the Court on that day. Thus, it is submitted that the

examination of the witness on 18.10.1994 was against the law and its

contents are of no consequence. Learned prosecutor further submitted

that the testimony of PW6 and PW7 Amit Kumar is consistent with

the case of the prosecution and there is nothing on the record to

suggest that they had any reason to falsely implicate the appellant and

his co-accused in the case and allow the real culprit to go scot free.

Thus, he has urged us to dismiss the appeal.

19. We have carefully considered the rival contentions and we find

substantial force in the submissions of learned counsel for the

appellant. Ex.PW10/A is the record of the first information received

in time about the incident at the police station, which admittedly was

sent to S.I. Rakesh Kumar for verification. As per this DD report, it

was intimated that injured Rajiv @ Kale, son of Gopal Singh, aged 18

years, resident of 750, Rehman Building, Shahdara, who was stabbed

at his house had been admitted by his brother to the GTB Hospital.

There is nothing on the record to suggest that by that time, anyone

else except the brothers of the deceased had reached the hospital. The

fact that the details of the deceased, including his parentage, age and

address is mentioned in the DD report is sufficient to infer that the

information contained in the DD report, which was conveyed by duty

constable Pramod Kumar was given to him either by the injured

himself or by the brother of the deceased. Since as per the MLC, the

deceased was unfit for making statement, possibly the information to

the duty constable was given by the brother of the deceased. If that

was the case, then the incident had taken place at the house and not in

the gali outside the house, as projected by the prosecution. Learned

counsel for the State has submitted that the information in the DD

report could be the result of some misunderstanding or

communication gap. We are not convinced with this argument,

particularly when SI Rakesh Kumar, PW8, who was the initial

Investigating Officer or Inspector Ranjit Singh, who conducted

subsequent investigation of the case did not even take pains to go to

the house of the deceased to verify the truthfulness of the contents of

the DD report Ex.PW10/A. Thus, it is apparent that investigation in

this case is highly flawed because the Investigating Officer did not

even visit the house of the deceased to find out if the incident had

actually taken place there. Had the Investigating Officer immediately

proceeded to the house of the deceased, perhaps he could have come

across some evidence authenticating the facts detailed in the DD

report. In our considered view, this serious lapse in the investigation

by itself is sufficient to extend the benefit of doubt to the appellant.

20. Coming to the eye-witness account. PW1 Vijay, who is the only

independent eye-witness in this case, has not supported the case of the

prosecution. Learned counsel for the State has submitted that since he

is a hostile witness and he has resiled from his earlier statement, no

importance should be attached to his testimony. It is settled law that

testimony of a hostile witness cannot be rejected as a routine. The

Court is obliged to carefully consider even the testimony of a hostile

witness and even if some part of the testimony appears to be truthful

and acceptable, it can be taken into account for arriving at a just

conclusion. PW1 Vijay has stated that on the relevant night at around

10.30 p.m., he was having meals with PW Amit in the house of Amit,

when the deceased Kale came from outside with his hands on his

abdomen and asked to be taken to the hospital. He also stated that

PW7 Ajay then came from upstairs and took him to the hospital.

Though a suggestion was given to this witness by learned APP in his

cross-examination that accused Dharmender caught hold of the

deceased and the appellant gave him knife blow, his above referred

version was not challenged by the learned prosecutor by giving

counter suggestion to the witness. If aforesaid version is to be

believed, then it becomes highly doubtful that PW6 or PW7 are the

eye-witnesses.

21. PW6, Amit Kumar, as is apparent from his testimony referred to

above, had given two contradictory versions in his examination-in-

chief. In the initial version which was recorded on 18.10.1994, PW

Amit did not support the prosecution story and according to him, he

had not seen the stabbing incident. But on 23.12.1994, when he was

recalled for further examination-in-chief, he changed his version. His

explanation for the aforesaid contradiction that it was a slip of tongue

as he was appearing for the first time in any Court of law is not very

convincing. It is anybody‟s guess as to what transpired between

18.10.1994 and 23.12.1994 which made PW6 Amit change his

version. Since this witness has given two contradictory versions on a

material aspect of the case, we find this witness to be highly

unreliable. As such, his testimony cannot be taken into account. Thus

we are left with the sole testimony of PW7, Ajay Kumar who stated

that on the night of 26.9.1993, at around 10.30 p.m., his brother Rajiv

was called out by the appellant and his co-accused and thereafter he

went along with them. The moment Rajiv left with the appellant and

his co-accused, he suddenly remembered the incident of 23.9.1993

referred to above and therefore, apprehending that something

untoward may not happened with his brother, he along with his

brother Amit followed them. This version of PW7 appears to be

highly unnatural. The episode of 23.9.1993, as referred to above, was

too trivial to be taken seriously. Further, it is noticed that neither in

the MLC Ex.PW13/A, nor in the DD report Ex.PW10/A is there is

any mention of the name of the assailants. In the DD report

Ex.PW10/A, all the vital details of the deceased are mentioned, which

implies that aforesaid information was given to the duty constable by

the brother of the deceased. If he was actually the eye-witness, under

the natural course of circumstances, while detailing the particulars of

the deceased, PW7 Ajay definitely would have mentioned the names

of the assailants. The absence of the names of the assailants in the

DD report Ex.PW10/A casts a doubt on the testimony of PW7 Ajay

that he actually witnessed the incident. Otherwise also, in view of the

other infirmities pointed out above, we do not deem it safe to base

conviction of the appellant on the sole testimony of PW7.

22. So far as the submissions of learned prosecutor regarding mandate of

Section 225 Cr.P.C. is concerned, we are not inclined to accept it. It

would have been better if the learned Sessions Judge, in view of the

mandate of Section 225 Cr.P.C., had refrained from recording the

statement of a material eye-witness in the absence of the public

prosecutor. Once he has examined the witness, his testimony cannot

be effaced from the record and it can be considered as statement of a

witness recorded under Section 311 Cr.P.C., which provision confers

power upon the Court to examine any person in attendance at any

stage of any inquiry, trial or other proceedings, under the Code of

Criminal Procedure. We may note that the learned Additional

Sessions Judge, after deferring further examination of PW6 on

18.10.1994 on account of absence of the public prosecutor proceeded

further to examine PW7 complainant Ajay Kumar on the same day,

which could have been avoided once the learned Additional Sessions

Judge had decided to defer further examination of PW6 due to

absence of the Public Prosecutor. Such selective examination of

witnesses in absence of the Prosecutor can sometimes give rise to

unnecessary apprehension about the fairness of the trial.

23. Other submission of learned counsel for the State is that there is no

possibility of PW6 and PW7 being untruthful as there is no reason as

to why they would falsely implicate the appellant and his co-accused

and allow the real culprit to go scot free. We are not convinced with

this argument, particularly in view of the fact that as per the DD report

Ex.PW10/A, the deceased was stabbed at his house, which fact has

not been verified by the Investigating Officer. If the deceased was

actually stabbed in the house, then the real culprit, in all likelihood,

has to be one of the family members/resident of the house. In that

case, PW6 and PW7 had every reason to twist the facts and shift the

blame in order to save the real culprit, who could be one of the family

members.

24. In view of the discussion above, we are of the view that this is a case

of unfair/casual investigation. The evidence produced by the

prosecution does not inspire confidence and we find it difficult to

sustain the conviction of appellant on the basis of above referred

unreliable testimonies. Accordingly, we accept the appeal. The

impugned judgment of conviction and the order on sentence are

hereby set aside. The appellant is acquitted of the charge under

Sections 302/34 IPC, giving him benefit of doubt.

25. The appellant is on bail. His bail bond and surety bond stand

discharged.

AJIT BHARIHOKE, J.

A.K. SIKRI, J.

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