Delhi High Court
Bijender Singh vs State (Nct Of Delhi) on 2 July, 2010
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: January 11, 2010
Judgment delivered on: July 02, 2010
+ CRIMINAL APPEAL NO. 548/2009
RANDHIR SINGH ....APPELLANT
Through: Mr. U.U.Lalit, Sr. Advocate with Mr. Alok K.
Agarwal, Mr. Naveen Chawla, Ms. Neha
Mishra, Mr. Mayank Bughani & Mr. Mukesh
Vats, Advocates.
Versus
STATE (NCT OF DELHI) ....RESPONDENT
Through: Mr. Pawan Sharma, Standing Counsel with
Mr. Sunil Sharma, APP.
WITH
CRIMINAL APPEAL NO. 592/2009
DIPENDER SINGH @ DEEPA @ DEEPU ....APPELLANT
Through: Mr. Sushil Kumar, Sr. Advocate with Mr.
Naval Kishore, Mr. Anmol Thukral & Mr.
Aditya Kumar, Advocates.
Versus
STATE (NCT OF DELHI) ....RESPONDENT
Through: Mr. Pawan Sharma, Standing Counsel with
Mr. Sunil Sharma, APP.
AND
CRIMINAL APPEAL NO. 594/2009
BIJENDER SINGH ....APPELLANT
Through: Mr. Siddharth Luthra, Sr. Advocate, Mr.
Anirudh Yadav, Advocate with Mr. Anurag
Ahluwalia, Advocate.
Versus
STATE (NCT OF DELHI) ....RESPONDENT
Through: Mr. Pawan Sharma, Standing Counsel with
Mr. Sunil Sharma, APP.
CORAM:
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE AJIT BHARIHOKE
Crl.A.No.548/09, 592/09 & 594/09 Page 1 of 22
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. Above referred appeals are directed against the impugned
judgment dated 06.07.2009 in Sessions Case No.36/08 FIR
No.238/88 Police Station Malviya Nagar in terms of which the
appellants Bijender Singh @ Biju, Dipender @ Deepu and
Randhir Singh @ Tata have been convicted on the charges
under Section 302 IPC read with Section 34 IPC and Section
307 IPC read with Section 34 IPC as also the consequent order
on sentence dated 08.07.2009.
2. At the outset we may record that the co-accused Joginder Pal
Singh absconded during trial at the stage of final arguments
and he was declared proclaimed offender.
3. Briefly stated, case of the prosecution is that on 31.08.1988 at
about 2.40 p.m. Rajinder Singh PW-10 was brought to All India
Institute of Medical Sciences (for short `AIIMS‟) by one Dinesh
Kumar s/o Duja Ram with alleged history of being stabbed at
the college on the chest, head and left limb. This information
was conveyed to P.S. Malviya Nagar by Duty Constable Dalbir
Singh posted at AIIMS and was recorded as DD No.10A at 3.05
p.m. Copy of the DD report was sent to S.I. Surjit Singh
through Constable Suraj Prakash who had gone to Aurobindo
College in connection with investigation of DD No.8A dated
31.08.1988.
4. On the same day at about 2.45 p.m., injured Yaad Ram
(hereinafter referred to as `deceased‟) was brought to
Safdarjung Hospital by one Raj Kamal s/o Inderpal, resident of
PTS 138, Mehrauli with alleged history of being stabbed with a
knife with complaint of pain in abdomen. This information was
conveyed by Duty Constable Ramesh Chand, Safdarjung
Hospital to the Police Station Malviya Nagar which was
recorded as DD No.11A dated 31.08.1988 at 3.10 p.m. Copy
of the aforesaid DD report was also forwarded to S.I. Surjit
Singh through Constable Rajpal.
5. S.I. Surjit Singh, on receipt of the copies of aforesaid DD
reports, visited Safdarjung Hospital along with Constable
Naresh Kumar and moved an application addressed to Medical
Officer, Safdarjung Hospital seeking permission to record the
statement of injured Yaad Ram(deceased). He, however, was
declared `unfit for statement‟. S.I. Surjit Singh then came to
AIIMS and sought permission from Medical Officer, AIIMS to
record the statement of injured Rajinder Singh (PW-10). He
was declared `fit for statement‟ and his statement was
recorded by S.I. Surjit Singh
6. Rajinder Singh (PW-10) in his statement Ex.PW-10/A claimed
that on 31.08.1988 he along with the deceased Yaad Ram had
gone to Aurobindo College to attend a party organised by one
Kapoor Singh Dagar to celebrate his election for College
Student Union. They reached at the gate of the college at
about 2.15 p.m. where they met Dinesh Kumar PW-14. The
appellants as well as their co-accused Joginder Pal Singh
(proclaimed offender) were also present at the gate of the
college. PW-10 Rajinder Singh claimed in his statement that
when they asked the appellants about Khazan Singh and
Kapoor Singh Dagar, the accused persons responded rudely by
saying "„Hame Pata Nahin Hei Kahan Bhad Mein Gaye". When
they protested against the said rude behaviour of the accused
persons, they started abusing them. PW-10 Rajinder Singh
further claimed that when he protested against the abuses,
appellant Bijender Singh exhorted the other accused persons
by saying "this Rajinder is uncle of Khazan Singh and a
supporter of Kapoor Singh Dagar, therefore he should be
beaten". On this exhortation, appellant Dipender @ Deepu
and the proclaimed offender Joginder Pal Singh caught hold of
Rajinder Singh from his hands and appellant Bijender Singh
and Randhir Singh attacked him with knives. Bijender Singh
inflicted stab injury on his head whereas Randhir Singh
stabbed him on his left armpit and the left hip. When Yaad
Ram tried to intervene, appellant Randhir Singh exhorted
Bijender Singh, Deepu and Joginder Pal Singh to kill him. On
his exhortation, Deepu, Joginder Pal Singh and Bijender Singh
caught hold of Yaad Ram and Randhir Singh inflicted a knife
blow in his abdomen. On the receipt of injury, Yaad Ram ran
towards the market holding his abdomen. PW-10 further
stated that the incident was witnessed by Dinesh Kumar and
some other persons who ran away from the spot. However,
someone brought him to AIIMS and got him admitted there.
S.I. Surjit Singh appended his endorsement on the statement
of PW-10 Rajinder Singh and sent the rukka to the police
station for registration of formal FIR under Sections 307/34
IPC.
7. From the hospital, S.I. Surjit Singh went to the place of
occurrence and prepared the rough site plan Ex.PW-22/A on
the pointing of the witness Dinesh Kumar. Injured Yaad Ram
died on 31.08.1988 itself and information of his death was
conveyed by the Duty Constable to P.S. Malviya Nagar which
was recorded as DD No.32 on 31.08.1988 at 6.10 p.m.
8. On 01.09.1988, PW-2 Chanderhas visited the hospital where
his statement under Section 161 Cr.P.C. was recorded by S.I.
Surjit Singh. S.I. Surjit Singh also conducted the inquest
proceedings and sent the dead body of Yaad Ram for post
mortem examination.
9. Subsequent investigation of the case was taken over by S.I.
B.L.Meena, PW-22, the then SHO P.S. Malviya Nagar. He
arrested appellant Bijender Singh as well as proclaimed
offender, Joginder Pal Singh on 07.09.1988. On interrogation,
appellant Bijender Singh as well as the co-accused Joginder Pal
Singh (P.O.) made disclosure statements about the incident
and stated that they had kept their blood stained clothes
which they were wearing at the time of occurrence with their
friend Vijay Kumar. Pursuant to the aforesaid disclosure
statement, they led the police party to House No.701, Sector-
1, R.K.Puram from where Vijay Kumar, s/o Om Prakash
produced a plastic bag containing a blood stained T-shirt
purportedly belonging to Bijender Singh and a bushirt
purportedly belonging to Joginder Pal Singh, which were
converted into separate packets and taken into possession.
Appellant Dipender @ Deepu was also arrested and he made a
disclosure statement pursuant to which he got recovered a
dagger(chhuri Ex.P-1) which was purportedly used in the
occurrence. Said dagger was also taken into possession after
preparing its sketch and converting it into a sealed packet.
10. Appellant Randhir Singh surrendered in the Court of
Metropolitan Magistrate on 15.09.1988. He claimed to be
innocent and requested for holding a Test Identification Parade
to fix his identity. So, the Investigating Officer moved an
application Ex.PW-18/A in the court of the concerned
Magistrate, requesting for holding of Test Identification Parade
to fix the identity of the appellant Randhir Singh. The
application was marked to Link Magistrate for necessary
action. Test Identification Parade was conducted by Shri
N.K.Kaushik, the then Metropolitan Magistrate on 22.09.1988
wherein appellant Randhir Singh was correctly identified by
PW-2 Chanderhas. However, the other two witnesses PW-10
Rajinder Singh and PW-14 Dinesh failed to identify him as one
of the culprits. On 23.09.1988, appellant Randhir Singh made
a disclosure statement Ex.PW-22/G and pursuant to the said
disclosure statement, he led the police party to House
No.1204, Sector-19, Faridabad from where Ms.Asha Rani
produced a shirt from an almirah which appellant Randhir
Singh was allegedly wearing at the time of the occurrence.
Said shirt was seized after converting it into a sealed packet.
11. The blood stained clothes seized at the instance of the
appellants and their co-accused Joginder Pal Singh as well as
blood stained clothes of the deceased and the injured Rajinder
Singh were sent to CFSL for examination and after collecting
the result of chemical analysis and completing the formalities
of investigation, the appellants and their co-accused were
challaned and sent for trial.
12. The appellants as well as their co-accused Joginder Pal Singh
were charged by the learned Trial Judge for committing
murder of Yaad Ram in furtherance of their common intention
for the offence punishable under Section 302 IPC read with
Section 34 IPC and also for attempt to commit murder of PW-
10 Rajinder Singh in furtherance of their common intention for
the offence punishable under Section 307 IPC read with
Section 34 IPC. The appellants as well as Joginder Pal Singh
pleaded not guilty to the charges and claimed to be tried.
13. In order to bring home the guilt of the appellants as well as their
co-accused Joginder Pal Singh, prosecution has examined 22
witnesses in all, including purported eye-witnesses to the
occurrence, namely PW-2 Chanderhas, PW-10 Rajinder Singh and
PW-14 Dinesh Kumar.
14. On conclusion of prosecution evidence, the appellants were
examined under Section 313 Cr.P.C. to afford them an
opportunity to explain the incriminating evidence appearing
against them. The appellants in their respective statements
denied the prosecution story in its entirety and claimed that they
have been falsely implicated by the police. No witnesses in
defence have been examined.
15. The case of the prosecution is mainly based upon the eye-
witness account of the occurrence. Therefore, before adverting
to the submissions made on behalf of the appellants and the
State, we deem it appropriate to have a look on the testimony of
the three eye-witnesses examined by the prosecution.
16. PW-2 Chanderhas has stated in the Court that on 31.8.1988 at
about 2.15 p.m. while he was going towards Aurobindo College
from the side of MMTC Market, he heard a noise and saw that
accused Joginder Pal Singh (P.O.) and appellant Dipender were
physically holding PW-10 Rajinder Singh and the appellants
Bijender Singh and Randhir Singh were stabbing him with knives.
He deposed that Bijender Singh inflicted knife injury on the
forehead of PW-10 Rajinder and Randhir Singh inflicted knife
injuries on the left hip and the left arm pit of Rajinder. When the
deceased Yaad Ram tried to rescue Rajinder, appellant Randhir
Singh exhorted his co-accused persons by saying „Pakar Lo Sale
Ko Yaad Ram Ko‟ and on his exhortation, appellants Bijender and
Dipender as well as their co-accused Joginder Pal Singh (P.O.)
caught hold of Yaad Ram and appellant Randhir Singh inflicted
knife blow on the left side of the abdomen of Yaad Ram.
Appellant Dipender Singh also gave fist blows to him. The witness
claimed that when he tried to intervene, all the four accused
persons ran away towards MMTC Market. He further stated that
on 01.09.1988 he went to Safdarjung Hospital where he met
SHO, P.S. Malviya Nagar and gave his statement. The witness
further claimed that on 09.09.1988 on the request of the father
of the deceased, he visited Police Station Malviya Nagar to
inquire about the progress of investigation in the case. When he
reached the police station at about 6.15 p.m., SHO Malviya Nagar
was sitting in the police van along with the appellants Bijender
and Dipender as well as the proclaimed offender Joginder Pal
Singh. SHO told him that the above referred accused persons
had made disclosures and the police party was going to effect
recoveries pursuant to the disclosure statements and he joined in
the investigation. Thereafter, accused Dipender led the police
party to a pagdandi (pathway) which led towards Lado Sarai and
got recovered one dagger Ex.P1 which was hidden under a stone.
SHO prepared the sketch of the dagger Ex.PW-2/A and converted
it into a sealed packet and took it into possession vide memo
Ex.PW-2/B. He identified his signature as a witness on the said
two memos. He also stated that thereafter appellant Bijender
Singh and P.O. Joginder Pal Singh led the police party to Quarter
No.107, Sector-1, R.K. Puram and called PW Vijay Kumar from
that house. They asked Vijay Kumar to bring their clothes which
they had kept with him on 01.09.1988. On this, Vijay Kumar
produced a black plastic bag which was found to contain one T-
shirt with yellow and red stripes belonging to appellant Bijender
Singh and one white and blue check shirt as well as white and
blue check pant belonging to the accused Joginder Pal Singh
(P.O.), which clothes were taken into possession. This witness
identified the T-shirt as Ex.P2 and the bushirt and pant belonging
to Joginder Pal Singh as Exhibits P3 and P4 respectively.
17. PW-10 Rajinder Singh, injured, has not supported the case of the
prosecution regarding the identity of the accused persons. He
was declared hostile on the request of the learned APP and was
cross-examined at length by him. According to him, on
31.8.1988, he and Yaad Ram went to Aurobindo College for
attending a party organized by Kapur Singh Dagar who had won
student union elections held on 26.8.1988. They reached
Aurobindo College at about 2.15 p.m. and met the appellant
Bijender and his co-accused Joginder Pal Singh (P.O.) there, who
were accompanied by 10/12 persons. PW-10 stated that when he
asked them as to where he could find Khazan Singh they rudely
replied „Hame Pata Nahin Hei Kahan Bhad Mein Gaye‟. On this,
he told them to behave and talk properly and suddenly one of
them remarked that he (witness) was uncle of Khazan Singh and
he should be beaten up. On this, Bijender etc. caught hold of him
and Sardarji i.e. Joginder Pal Singh gave him a knife blow. When
Yaad Ram tried to rescue him, he was also given knife blows.
The witness claimed that at the time of incident, Dinesh and
Chanderhas were also standing nearby. He was taken to the
hospital by somebody where his statement Ex.PW-10/A was
recorded by the police. However, during his cross-examination
by learned APP, he failed to identify appellant sDipender Singh
and Randhir Singh. In his cross-examination on behalf of the
appellants, he stated that he was not aware as to who had
caused injuries to him and Yaad Ram. He stated that he did not
see the person who caused injuries to Yaad Ram and in his
statement to the police he had stated that some boys had
inflicted injuries on his person but he had not mentioned their
names. He was in semi-conscious condition at that time and
police told him the name of boys who had inflicted injuries on
him as well as Yaad Ram and he appended his signature on the
said , which was not read over to him. He further stated that
none of the assailants were present in the Court. He also stated
that PW-2 Chanderhas was not present at the spot at the time of
occurrence and he had come to the hospital later.
18. PW-14 Dinesh Kumar, the third purported eye-witness is totally
hostile to the case of the prosecution and has stated that he had
not witnessed any fight or quarrel at Aurobindo College. He also
stated that neither Rajinder Singh nor Yaad Ram sustained
injuries in his presence. He was cross-examined by learned APP
but he denied the prosecution case suggested to him and
nothing of importance could be elicited from his cross-
examination.
19. Prosecution has endeavoured to establish the guilt of the
appellants by examining three eye-witnesses, namely, PW2
Chanderhas, PW10 Rajender Singh, injured complainant and
PW14 Dinesh Kumar. PW10 Rajender Singh and PW14 Dinesh
Kumar are hostile witnesses and they have not supported the
prosecution story. Thus the case of the prosecution is mainly
based upon the testimony of PW2 Chanderhas.
20. Learned Shri Sushil Kumar, Sr. Advocate appearing for the
appellant Dipender Singh @ Deepu, learned Shri U.U. Lalit, Sr.
Advocate appearing for the appellant Randhir Singh and
learned Shri Siddhartha Luthra, Sr. Advocate appearing for the
appellant Bijender Singh have argued on almost similar lines.
They submitted that the learned Trial Judge has committed a
grave error in relying upon the testimony of PW2 Chanderhas.
Their first criticism to the testimony of PW2 Chanderhas is that
as per his testimony, injured Rajender Singh and the deceased
Yaad Ram were earlier known to him and he had even gone to
the hospital to find out about their condition in the evening of
31st August 1988 i.e. the date of incident and remained there
from 7.00 p.m. to 8.30 p.m. This version, if correct, gives an
impression that he was friendly with the deceased as well as
the injured Rajender Singh. Despite of that though he claims
that he was present at the spot of occurrence he did not care
to attend to the injured Rajender Singh as well as the injured
Yaad Ram or make any effort to take them to the hospital. It
was further pointed out by learned counsels appearing for the
appellants that PW2 Chanderhas claims that on 31.08.1988 he
did not report the matter to the police nor did he bother to
inform the family of Yaad Ram about the incident, which
conduct of PW2 Chanderhas is highly unnatural and casts
strong doubt against his presence at the spot. Learned
counsels appearing for the appellants drew our attention to
the rough site plan of the place of occurrence purportedly
prepared by S.I. Surjit Singh in the evening of 31.08.1988
wherein the position of PW2 Chanderhas as well as Dinesh
Kumar has been specifically marked. Admittedly, PW2
Chanderhas did not contact the police on 31.08.1988,
therefore, only other person who could have assisted S.I. Surjit
Singh in preparing the rough site plan could be Dinesh Kumar.
Learned counsels submitted that PW14 Dinesh Kumar has
nowhere stated in his testimony that the rough site plan was
prepared at his instance. On the other hand, he denied having
seen the occurrence; therefore, it is a mystery as to how S.I.
Surjit Singh came to know on 31.08.1988 that PW2
Chanderhas was present near the spot of occurrence at the
time of incident. Learned counsels have urged us to infer from
the aforesaid circumstance that the rough site plan Ex.PW22/A
is a fabricated document in which the position of PW2
Chanderhas has been shown after deciding to plant him as a
witness to strengthen the case of the prosecution. Thus, it has
been strongly urged on behalf of the appellants that it is not
safe to place reliance upon the testimony of PW2 Chanderhas.
21. Learned counsel for the State has refuted this argument by
contending that unfortunately S.I. Surjit Singh could not be
examined as he had retired and shifted to Punjab and merely
because PW14 Dinesh Kumar has opted not to support the
case of the prosecution, the version of PW2 Chanderhas, which
is consistent with the prosecution case as narrated in the FIR
Ex.PW19/A which was recorded within three hours of the
incident on the basis of the statement of PW10 Rajender
Singh, cannot be suspected particularly when there is nothing
on record to suggest any motive or reason on the part of PW2
Chanderhas to falsely implicate the appellants.
22. We find substance in the above submissions made on behalf of
the appellants. PW2 Chanderhas has stated that in the
morning of 01.09.1988 he had gone to the hospital where he
met the SHO and gave a statement to him. He also stated
that his statement under Section 161 Cr.P.C. was recorded by
the SHO himself. This version however, is belied by the
record. On perusal of record and the case diaries it transpires
that the purported statement of PW2 Chanderhas under
Section 161 Cr. P.C. is recorded in the hand of S.I. Surjit Singh.
No doubt much importance cannot be given to this
discrepancy in the statement of PW2 Chanderhas and it can be
attributed to failure of memory due to the time gap between
01.09.1988 and the date of recording the statement of the
witness, particularly when the witness claimed that S.I. Surjit
Singh was also present at the hospital when the statement
was recorded. Nevertheless this discrepancy raises a doubt
whether the statement of Chanderhas was at all recorded by
the police on 01.09.1988. In order to clarify this doubt we have
gone through the case diaries recorded by the Investigating
Officer. On perusal of the case diary recorded by the
Investigating Officer Inspector Banwari Lal, SHO, P.S. Malviya
Nagar on 01.09.1988 it transpires that the SHO has recorded
proceedings in this case diary from the period w.e.f. 12.55
a.m. till 6.05 p.m. when the case diary was closed. In the
entire case diary pertaining to the date 01.09.1988 there is no
mention of PW2 Chanderhas meeting the SHO or S.I. Surjit
Singh in the hospital and making a statement under Section
161 Cr. P.C. However, the purported statement of PW2
Chanderhas dated 01.09.1988 purportedly recorded by S.I.
Surjit Singh is in the case diary. From the record of case
diaries it is apparent that the investigation of this case was
taken over by SHO Inspector Banwari Lal Meena at least w.e.f.
12.55 a.m. on 01.09.1988, therefore, it is a mystery as to why
and on whose instructions S.I. Surjit Singh recorded the
statement of PW2 Chanderhas and why there is no mention of
recording of such statement in the case diary. This
circumstance raises a strong possibility that PW2 Chanderhas
might have been introduced as a witness at a later stage. This
doubt could be clarified only by S.I. Surjit Singh who has not
been examined as a witness. The explanation given by
learned counsel for the State for non-appearance of S.I. Surjit
Singh as a witness is not sound because on perusal of Trial
Court record, it transpires PW2 Chanderhas was examined as a
witness for the first time on 24.09.1991 and the evidence of
the prosecution was finally concluded on 07.03.2001. During
this period of ten years, summons for production of S.I. Surjit
Singh were issued on several occasions but he was not
produced by the prosecution. It is not clear from the record as
to when S.I. Surjit Singh retired. Even if he had retired, he
being a pensioner, his address must have been available in the
police record and therefore, he could easily have been served
with the summons if the prosecution was serious in examining
him as a witness. Thus, non-production of S.I. Surjit Singh as a
witness goes against the case of the prosecution as his non-
appearance has caused serious prejudice to the defence.
23. The rough site plan Ex.PW22/A is purportedly prepared by S.I.
Surjit Singh on 31.08.1988. On perusal of this plan, it
transpires that the incident took place near the main gate of
Aurobindo College towards the side of MMTC Market. Witness
Dinesh is shown to have been standing at some distance from
the place of occurrence near the main gate at point D shown
in the plan and witness Chanderhas is shown to be standing in
the opposite direction across the service road towards MMTC
Market at some distance from the place of occurrence.
Ex.PW13/A is the scaled site plan which was subsequently
prepared by B.M. Nagar on 26.10.1988. As per the scaled site
plan, the distance between the place of occurrence and the
spot where witness Dinesh was standing is 14.45 metres and
the distance between the place of occurrence and the spot
where PW2 Chanderhas was purportedly standing is slightly
more than 19.55 metres (14 metres + 5.55 metres). Thus if
the site plan is taken to be correct then the distance between
the witness Dinesh and PW2 Chanderhas was almost 34
metres. Therefore, it is unlikely that the said witness Dinesh
could have seen Chanderhas present at the spot C shown in
the rough site plan. PW14 Dinesh has denied having seen the
occurrence; therefore, he possibly could not have assisted S.I.
Surjit Singh in preparation of rough site plan. Learned counsel
for the State has tried to get out of this situation by
contending that PW14 Dinesh Kumar has been won over by
the appellants. This however does not help the prosecution
because there is one other Dinesh in picture. As per the MLC
of PW10 Rajender Singh Ex.PW6/A, he was taken to the
hospital by one Dinesh Kumar, s/o Dooja Ram whereas PW14
Dinesh Kumar is the son of Chotte Lal. It is possible that S.I.
Surjit Singh might have referred to Dinesh Kumar, s/o Dooja
Ram in the rough site plan Ex.PW22/A. Said Dinesh Kumar, s/o
Dooja Ram has not been produced as a witness to establish
that rough site plan was prepared at his instance. PW14
Dinesh Kumar has also not supported this story, therefore a
possibility of fabrication in the site plan Ex.PW22/A at a later
stage to introduce Chanderhas as a witness cannot be ruled
out, particularly when S.I. Surjit Singh has not been examined
to clarify this doubt. In view of the above, a possibility cannot
be ruled out that PW2 Chanderhas has been introduced as
witness on an after-thought. Thus we do not find it safe to rely
upon his testimony.
24. Otherwise also, the conduct of PW2 Chanderhas post
occurrence is highly doubtful. He claimed to have known the
deceased Yaad Ram as well as PW10 Rajender Singh since
prior to the occurrence. He also claimed that after the
stabbing when he tried to separate the parties all the four
accused ran away towards MMTC Market. Despite that he
admittedly did not attend to the deceased Yaad Ram and
injured Rajender Singh and went away to his residence without
even bothering to ensure that they were taken to the hospital
for treatment. He admittedly did not even inform the family
members of deceased Yaad Ram about the injuries suffered by
him in the occurrence and he also did not care to report the
matter to the police. The explanation given by him for such
unnatural conduct is that he was scared and because of fear
he went away from the spot. Aforesaid explanation is
unacceptable, being inconsistent with his evidence to the
effect that at the time of occurrence he tried to intervene and
separate the parties. If he was not afraid to intervene in the
matter immediately after the stabbing, it is highly improbable
that after the accused persons ran away he got scared for his
life. Thus it is apparent that the conduct of PW2 Chanderhas
post occurrence is highly unnatural, which, coupled with the
infirmities pointed out in the earlier discussion makes his
presence at the time of occurrence highly doubtful and we do
not find it safe to rely upon his testimony. It is worth noting
that even PW10 Rajender Singh (injured) in his cross-
examination has stated that he knew Chanderhas since prior
to the incident and Chanderhas was not present at the spot.
25. The other incriminating evidence relied upon by the
prosecution is the purported recovery of weapon of offence i.e.
dagger Ex.P1 at the instance of the appellant Dipender Singh
@ Deepu and also the purported recoveries of their respective
blood-stained clothes at the instance of the appellant Randhir
Singh from House No.1204, Sector-19, Faridabad and at the
instance of appellant Bijender Singh from the house at Sector -
1, R.K. Puram of PW20 Vijay Kumar. Aforesaid recoveries were
purportedly affected vide seizure memos Exs.PW22/B, PW22/C
and PW22/J respectively. On perusal of the seizure memo
Ex.PW22/A, it transpires that as per the case of the
prosecution the 'churi' was recovered by SHO Banwari Lal in
presence of PW2 Chanderhas and S.I. Surjit Singh. Similarly as
regards the recovery of blood-stained clothes of Bijender
Singh, appellant at his instance the purported witnesses to the
recovery are S.I. Surjit Singh, PW2 Chanderhas and PW20 Vijay
Kumar, besides the Investigating Officer. We have already
concluded that PW2 Chanderhas is not a reliable witness.
PW20 Vijay Kumar has not supported the prosecution version
regarding recovery of blood-stained clothes at the instance of
appellant Bijender Singh and S.I. Surjit Singh has not been
examined by the prosecution to prove aforesaid recoveries. In
view of the above fact, we find ourselves unable to accept the
testimony of PW22 Inspector Banwari Lal Meena regarding
said two recoveries, particularly when there is a question mark
on the fairness of investigation conducted in this case. To
establish the recovery of blood-stained shirt belonging to
appellant Randhir Singh at his instance, prosecution is relying
upon the recovery memo Ex.PW22/J. It is proved on record by
PW22 Inspector Banwari Lal Meena who is neither the author
of the recovery memo nor a witness to the same. Perusal of
the recovery memo reveals that this recovery has purportedly
been affected by S.I. Surjit Singh in presence of the witnesses
Ms.Asha Rani and S.I. Ashok Kumar. Neither of them have
been examined by the prosecution to prove said recovery,
therefore, it is obvious that prosecution has failed to establish
the recovery of blood-stained shirt at the instance of appellant
Randhir Singh. The net result of this discussion is that the
prosecution has even failed to establish the recovery of
incriminating articles i.e. dagger Ex.P1 as well as blood-stained
clothes belonging to appellants Randhir Singh and Bijender
Singh at their instance in furtherance of their disclosure
statements.
26. In view of the above, we find that the prosecution case is full
of doubts and it is not safe to rely upon the ocular evidence
produced by the prosecution. Thus, we find ourselves unable
to sustain the impugned judgment of conviction and
consequent order on sentence. We, therefore, accept the
appeals and acquit the appellants Dipender Singh, Bijender
Singh and Randhir Singh, giving them benefit of doubt. Their
conviction and consequent order on sentence is hereby set
aside.
27. Appellants are in judicial custody. They be released forthwith
if not required in any other case.
28. The appeals are disposed of accordingly.
AJIT BHARIHOKE, J.
JULY 02, 2010/gm/ks A.K. SIKRI, J.
