Ram Das & Anr. vs The State (Nct Of Delhi)
2010 Latest Caselaw 3064 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Judgment reserved on: January 19, 2010
                                Judgment delivered on: July 02, 2010

+      CRIMINAL APPEAL NO.124/1997

       RAM DAS & ANR                                  ....APPELLANTS
              Through:           Ms. Rebecca M. John, Advocate

                            Versus

       THE STATE(N.C.T. OF DELHI)           .....RESPONDENT
               Through: Mr. Pawan Sharma, Standing Counsel

                                     WITH

       CRIMINAL APPEAL NO.125/1997

       KRISHNA                                        ....APPELLANT
                     Through:    Ms. Rebecca M. John, Advocate

                            Versus

       THE STATE(N.C.T. 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 papers
       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 Digest ?                                Yes

AJIT BHARIHOKE, J.

1. These appeals are preferred against the impugned judgment

dated 13th January, 1997 holding the appellants guilty of committing

murder of Ravinder @ Pamli and causing simple hurt to Naresh in

furtherance of their common intention and convicting them on the

charges under Section 302 IPC read with Section 34 IPC and Section

323 IPC read with Section 34 IPC as also the consequent order on

sentence dated 16th January, 1997.

2. Briefly stated, case of the prosecution is that on 30.04.1992 at

about 07:30 pm, PW13 Naresh Kumar, PW2 Vijender and Ravinder @

Pamli (hereinafter referred to as deceased) were having „chowmein‟

in the park adjacent to Gujral Tent House in B-Block, Jahangirpuri.

The appellants Ram Das, Rakesh and their mother Krishna @ Paro

came there. Appellant Ram Das @ Kale gave a push to the

deceased, who was sitting on a chair and shouted "Bastard, we have

come prepared and shall finish your story today" and appellant

Krishna exhorted him by saying "Beta Maro, Haramjadon ko". In the

meanwhile, appellant Ram Das @ Kale took out a „churi‟ from under

his shirt and inflicted a blow with it to the deceased Ravinder @

Pamli. On receiving the „churi‟ blow, the deceased ran, saying

"Mujhe churi mar dee". Appellant Rakesh @ Khote chased the

deceased and caught hold of him from behind on the road adjacent

to the park and the appellant Ram Das gave „churi‟ blows from the

front side on the person of the deceased. When PW13 Naresh tried

to rescue the deceased, appellant Krishna picked up a brick and hit

Naresh on his head from behind. Appellant Rakesh also assaulted

him with legs and fists. Thereafter, all the three appellants ran away

shouting that they have accomplished their job.

3. PW2 Vijender took the deceased Ravinder to Hindu Rao

Hospital in a three wheeler scooter. PW Naresh also followed them

to the hospital. In the hospital, the deceased was declared brought

dead. The injury on the head of PW Naresh was opined as simple

and he was declared fit for statement.

4. As per the case of the prosecution, on 28.04.1992, the

deceased had asked a child to fetch water for him and the appellant

Ram Das had forbidden said child from doing so. On this, there was

an altercation between the appellant Ram Das and the deceased

and the appellant Ram Das had threatened the deceased that he

would take revenge. This, according to the prosecution, was the

motive for the crime.

5. Information regarding the occurrence was conveyed by

someone to the Police Control Room and PCR Constable Ms. Usha

conveyed said information to police station Jahangirpuri, which was

recorded as DD No. 67B on 30.04.1992 at 07:45 pm. Inquiry was

entrusted to ASI Kanti Prasad, who along with Constable Raju Mohan

went to the spot. There, he came to know that the injured had been

removed by his brother to the hospital. He left Constable Raj Mohan

at the spot to protect the scene of crime and went to Hindu Rao

Hospital. He collected the MLC of the deceased as well as of PW13

Naresh. Naresh was declared fit for statement and ASI Kanti Prasad

recorded his statement Ex.PW13/A. He also met PW Vijender in the

hospital. ASI Kanti Prasad, along with both Naresh and Vijender,

returned to the spot from where he sent rukka Ex.PW19/A to the

police station through Constable Raju Mohan. On the basis of said

rukka and statement of Naresh Kumar, formal FIR was registered.

6. SHO Inspector Ishwar Singh also reached at the spot along with

the staff and took over investigation of the case. He inspected the

spot and prepared site plan. He got the place of occurrence

photographed, lifted the exhibits from there and also seized blood-

stained clothes of PW2 Vijender. The Investigating Officer

conducted the inquest proceedings on 01.05.1992 and post-mortem

was conducted by Dr. L.T.Ramani (PW10). His report is Ex.PW10/A.

As per the report, there were five external injuries on the body of

the deceased, which were ante-mortem in nature. Injuries No. 1 to 4

were caused by sharp weapon and injury No. 5 was an abrasion on

the left knee. Injury Nos. 2, 3 & 4, in the opinion of Dr. L.T.Ramani,

were sufficient to cause death in ordinary course of nature. As per

the post-mortem report, the cause of death was haemorrhage

consequent to injuries to thorasic and abdominal viscera.

7. Appellant Krishna @ Paro was arrested on the pointing of PW2

by the Investigating Officer on 01.05.1992. On interrogation, she

made a disclosure statement Ex.PW20/D. Appellants Ram Das and

Rakesh were arrested on 02.05.1992 on the pointing of the

appellant Krishna. During interrogation, they also made disclosure

statements. Appellant Ram Das, pursuant to his disclosure

statement got recovered the weapon offence i.e. „churi‟ Ex.P3 as

well as the clothes worn by him at the time of occurrence, which

were stained with blood. Those were taken into the possession and

the case property was deposited in „malkhana‟.

8. On 25.06.1992, „churi‟ Ex.P3, which was in a sealed parcel was

produced before the Autopsy Surgeon for his opinion and the

Autopsy Surgeon Dr. L.T.Ramani, after examining „churi‟ opined that

the injuries found on the body of the deceased were possible with

that „churi‟.

9. The Investigating Officer also got prepared the scaled site plan

of the spot of occurrence. He recorded statements of the witnesses

and sent the exhibits to the CFSL. The CFSL reports are Ex.PW20/F,

Ex.PW20/G and Ex.PW20/H, which have been tendered in evidence.

10. On completion of the investigation, charge-sheet under Section

302 IPC and Section 323 IPC, both read with Section 34 IPC was filed

against the appellants.

11. Learned Additional Sessions Judge framed charges under

Section 302 IPC read with Section 34 IPC and Section 323 read with

Section 34 IPC against the appellants. The appellants pleaded not

guilty to the charges and claimed to be tried.

12. The prosecution has examined 22 witnesses in support of its

case. The appellants, in their respective statements recorded under

Section 313 Cr.P.C. have denied the evidence against them and

claimed innocence.

13. Appellant Krishna @ Paro in her defence examined DW1 Gopi,

who is the elder brother of her husband. He deposed that on the

day of the occurrence, appellant Krishna had attended a function at

his house in connection with the marriage of his son. She came

there at around 03:00-04:00 pm and remained present in the

function throughout the night. In the morning at about 03:00 or

04:00 am, the police came and arrested her.

14. As per the case of the prosecution, there are only two eye-

witnesses to the occurrence, namely PW2 Vijender, brother of the

deceased and PW13 Naresh. Case of the prosecution is that the FIR

in this case was registered on the basis of the statement Ex.PW13/A

of the complainant Naresh Kumar. He, however, in his testimony in

court has not supported the case of prosecution. He stated that

nothing happened in his presence. He was only hit on his head, as a

result of which he became unconscious. This witness was cross-

examined by learned APP with the permission of the court. In the

cross-examination, he denied all material suggestions put to him,

but he admitted his signatures on statement Ex.PW13/A, which

formed basis of registration of the case. He, however, explained

that those signatures were obtained by the police officials when he

was in semi-conscious condition.

15. PW2 Vijender has testified that on 30.05.1992, he and the

deceased went to have „chowmein‟ near Gujral Tent House in B-

Block, Jahangirpuri. PW Naresh @ Tota also joined them there. They

placed an order for half plate „chowmein‟. In the meanwhile, Kale @

Ram Das and Khote @ Rakesh came there. Thereafter, appellant

Paro @ Krishna also came at the spot. Appellant Kale told Ravinder

@ Pamli (deceased) "Aaj tera safaya kar denge". Then appellant

Paro exhorted "Maro haramjadon ko" and on this, appellant Kale

pushed the chair of the deceased and inflicted a knife blow on the

chest of the deceased. The witness stated that when he rushed to

save the deceased, appellant Rakesh @ Khote grappled with him

and gave him fist and kick blows. PW Naresh also tried to rescue

Ravinder and the appellant Paro gave a brick blow to Naresh. In the

mean time, the deceased ran out of the park but he was caught hold

by the appellant Rakesh @ Khote from behind and the appellant

Kale @ Ram Das inflicted further knife blows on the abdomen and

right side of the chest of the deceased. Thereafter, both the

appellants ran away saying that they have done whatever they

intended. PW2 also stated that he took his injured brother in a

three wheeler scooter to Hindu Rao Hospital, where he was declared

brought dead. He also stated that PW Naresh had fallen as a result

of the brick blow and he reached at the hospital later. PW2 further

stated that police met him in the hospital and he came with the

police to the place of occurrence. From there, the police seized the

blood-stained earth and control earth and also took measurements

at the spot of occurrence. Those samples were then converted into

separate sealed parcels and taken into possession vide memo

Ex.PW2/A. He further stated that his blood-stained clothes were also

seized by the police vide memo Ex.PW2/A. He identified his T-Shirt

and Pant Ex.P1 and Ex.P2, which were taken into possession by the

police. In the cross-examination, the witness stated that ASI Kanti

Prasad met him in the hospital. He had a talk with the police there

and told the police about the incident. He also stated in the cross-

examination that his statement was recorded by the police on the

same night wherein he had narrated all those facts which he had

told ASI Kanti Prasad earlier. He, however, could not tell the name of

the person who recorded his statement.

16. The other material witnesses examined by the prosecution are

PW5 Ram Prakash, PW6 Kiran Pal, PW19 ASI Kanti Prasad, PW20

Inspector Ishwar Singh and PW21 SI Ishwar Singh.

17. Learned Additional Sessions Judge, relying upon the testimony

of sole eye witness Vijender (PW2) and the evidence of recovery of

churi at the instance of the appellant Ram Das, found the appellants

guilty and convicted them on both counts.

18. Learned Ms. Rebecca M. John, advocate appearing for the

appellants has submitted that the learned Trial Court has fallen in

grave error in placing reliance upon the testimony of PW2 Vijender.

19. Her first contention in this regard is that PW2 Vijender is an

interested witness, being brother of the deceased. Therefore, it is not

safe to rely upon his sole testimony when the purported independent

witness of occurrence examined by the prosecution has not supported

the case of the prosecution.

20. It is true that PW2 Vijender is the real brother of the deceased

and for that reason, to some extent he can be termed as an interested

witness. This, however, does not mean that he is an untruthful witness

or his testimony is liable to be discarded, without any scrutiny, at the

threshold.

21. In the matter of Harbans Kaur Vs. State of Haryana, AIR

2005, SC 2989, the Supreme Court observed thus:

7. "There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused. No evidence has been led in this regard. So far as the delay in lodging the FIR is concerned, the witnesses have clearly stated that after seeing the deceased in an injured condition immediate effort was to get him hospitalized and get him treated. There cannot be any generalisation that whenever there is a delay in lodging the FIR, the prosecution case becomes suspect. Whether delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case, would depend upon the facts of each case. Even a long delay can be condoned if the witnesses have no motive of implicating the accused and have given a plausible reason as to why the report was lodged belatedly. In the instant case, this has been done. It is to be noted that though that was cross-examination at length no infirmity was noticed in their evidence. Therefore, the trial Court and the High Court were right in relying on the evidence of the prosecution witnesses."

22. In the matter of Ram Lakhan and Others Vs. State of U.P.,

1996 (2) CC Cases 122 (SC), it has been held by the Hon‟ble Supreme

Court that evidence of close relative cannot be excluded merely on the

ground that they are interested witnesses. It is the duty of the court to

scrutinise the evidence of such witnesses very carefully and if there is

any doubt as regards their truthfulness, the court may discard their

evidence.

23. Similarly in the matter of Ramji Surjya and Another Vs. State

of Maharashtra, 1983 (2) Crimes, 237, Hon‟ble Supreme Court held

thus:

"(8).There is no doubt that even where there is only a sole eye witness of a crime, a conviction may be recorded against the accused concerned provided the Court which hears such witness regards him as honest and truthful. But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be

closely related to the deceased and the accused are those against whom some motive of ill-will is suggested."

24. From the proposition of law enunciated above, it is apparent that

the evidence of a witness related to the deceased cannot be discarded

on sole ground of relationship. However, testimony of such witness

should be scrutinised carefully and some corroboration should be found

from the other material on record. In the light of the above principle of

law, we now proceed to assess the testimony of PW2 Vijender.

25. As regards the merits of testimony of PW2 Vijender, learned

counsel for the appellants submitted that his testimony is not worthy of

credence and he appears to have been planted as a witness on an

afterthought. In support of this contention, learned counsel submitted

that though the incident is dated 30.04.1992 and though, as per the

version of PW2 Vijender, he met ASI Kanti Prasad in the Emergency

Ward of the Hospital in the evening of 30.04.92 and told him about the

incident, yet his statement under Section 161 Cr.P.C. was not recorded

by ASI Kanti Prasad. In support of this contention, she drew our

attention to the cross-examination of ASI Kanti Prasad wherein he

stated that he had not recorded the statement of PW2 Vijender.

Dilating on this argument, learned counsel for the appellants drew our

attention to the purported statement Ex.PW2/DA of PW2 Vijender which

is claimed by the prosecution to have been recorded on 30.04.92.

Learned counsel pointed out that this statement bears the signatures

of Inspector Ishwar Singh, SHO Jahangir Puri with the date 02.05.92

and is also not described as a supplementary statement. From this,

she submitted that it is apparent that purported statement Ex.PW2/DA

of the witness Vijender has been fabricated by the Investigating Officer

on 02.05.92 on an afterthought to build up a case against the

appellants. Thus, she has urged us to infer that PW2 Vijender is not an

eye witness and he has been planted as an eye witness by the

Investigating Officer on an afterthought.

26. Similar argument was also raised before the learned Trial Court.

The learned Additional Sessions Judge, in the impugned judgment, has

dealt with this argument in the following manner:

"35. On the face of it this argument of the ld. defence counsel appears to be sound one as the statement u/s 161 Cr.P.C. of PW Vijender Ex PW2/DA bears the date 2-5-92. Let us find out the truth.

36. PW2 Vijender has stated thus in his cross examination at page 17 in para 3:

" My statement was recorded on 30-4-92 before mid night, 12 O'clock. I do not know if my statement was recorded on 2-5-92 or not. After the occurrence the police had been meeting me off and on in connection with the investigation of this case."

37. Thus, the witness is categorical about the date of recording of his statement. Though the statement Ex PW 2/A bears the date 2-5-92 at the end under the signatures of the I.O, yet the second sentence in the second line of the statement starts with "Aaj Dinak 30-4-92 ....................." Subsequent part of the statement refer to the seizures made vide memos Ex PW 2/A and PW 2/B. These are also dated 30-4-

92. These facts indicate that the statement Ex PW 2/DA was recorded on 30-4-92 and not on 2-5-92. To further verify this fact I have gone through the case diary also. In para 12 of the case diary 1A dated 30-4- 92 there is mention of recording of statement of Vijender. Further, supplementary statement of PW Vijender was recorded on 1-5-92 which mentions that he confirms his earlier statement. This further confirms

that the statement Ex PW 2/DA was recorded on 30-4-92 and not on 2-5-92. The I.O. has just wrongly mentioned the date as 2-5-92."

27. We are unable to agree with the above line of reasoning adopted

by the learned Additional Sessions Judge in rejecting the contention of

the accused persons i.e. the appellants before us. Just because

purported statement Ex.PW2/DA of PW Vijender starts with the words

"Aaj Dinak 30.04.92 .........................." and it also refers to the seizures

made by the Investigating Officer on 30.04.92 in presence of the

witness vide memos Exhibits PW2/A and PW2/B, it cannot be safely

inferred that the above statement was actually recorded on 30.04.92

and, due to inadvertence, the Investigating Officer instead of 30.04.92

has appended the date 02.05.92 under his signatures. Perusal of the

testimony of Inspector Ishwar Singh (PW20), who purportedly recorded

the statement PW2/DA, reveals that in his cross-examination he had

stated that on the relevant day he had seized the clothes of PW

Vijender at the spot and had not taken him to the Police Station. He

also stated that statement of Vijender was not recorded by him. If this

version is to be believed, then obviously Inspector Ishwar Singh did not

record any statement of PW Vijender on 30.04.92. Therefore, this rules

out any possibility of the inadvertent wrong mentioning of date on the

statement Ex.PW2/DA as 02.05.92 instead of 30.04.92 by the

Investigating Officer. Though it cannot be denied that sometimes

inadvertent mistakes pertaining to the date on which the document is

prepared or signed do happen, however, one cannot lose sight of the

fact that such inadvertent mistakes happen sub-consciously when the

author of the document or its signatory is not conscious of the actual

date. In the normal course of circumstances, in such cases, the author

or signatory of the document is always likely to append the date

preceding to the actual date on the document. On perusal of

Ex.PW2/DA, we find that it is not only purported to have been signed on

the date subsequent to the date of occurrence but the month is also

not the same. It is highly improbable that such an inadvertent mistake

could have been committed by the Investigating Officer. This

circumstance raises a strong possibility that the purported statement

of the witness Ex.PW2/DA has been subsequently introduced by the

Investigating Officer on an afterthought to project PW2 Vijender as an

eye witness and makes the prosecution story suspect.

28. Learned Standing Counsel for the State submitted that there can

be no doubt about the presence of PW2 Vijender at the time of

occurrence because the incident took place on 30.04.92 at 7:30 pm

and as per the MLC, the deceased was brought to the Hindu Rao

Hospital on the same day at 8:00 pm, i.e. within half a hour of the

incident.

29. In order to properly appreciate the argument of learned counsel

for the State, it is necessary to have a look upon the site plan of the

place of occurrence Ex.PW20/A. As per the site plan, the incident took

place in DDA Park, B-Block Jahangir Puri. The park is adjacent to the

main BC market road and across that road, some shops pertaining to

C-Block and toilet block of C-Block of Jahangir Puri are shown. This

imply that C-Block Jahangir Puri was located just across the road from

the place of occurrence. PW2 Vijender is resident of C-1531, Jahangir

Puri. This imply that he was living close by to the place of occurrence.

Therefore, a possibility cannot be ruled out that on coming to know

about the incident, he reached at the spot of occurrence after the

incident and took his injured brother to the hospital. There is one more

aspect to this case. If PW2 Vijender is to be believed then he, Naresh

and the deceased are friends and they were taking Chowmein at the

time of incident and that Naresh also sustained injury in that incident.

In that eventuality, under the natural course of circumstances, PW2

Vijender was expected to take PW13 Naresh, who sustained injury

while trying to save the deceased along with the deceased to Hindu

Rao Hospital, which is not the case. This circumstance raises a doubt

against the presence of PW2 Vijender at the time of occurrence. Thus,

we do not find it safe to rely on his testimony.

30. Once the testimony of PW2 Vijender is found unreliable, we are

left with only one incriminating circumstance i.e. the recovery of churi

Ex.P3 recovered at the instance of the appellant Ram Das. As per the

case of the prosecution, the recovered churi Ex.P3 was sent to CFSL for

chemical analysis. Though some traces of human blood were found on

the churi but it gave nil in the reaction for the blood group. The result

is that blood group on the churi has not been connected with the blood

group of the deceased which was found to be "O" group. This

circumstance, in absence of any other cogent incriminating evidence

against the appellants, is not sufficient to hold the appellants guilty.

31. In view of our discussion above, we are unable to sustain the

conviction of the appellants. We accordingly accept the appeal and set

aside the impugned judgment of conviction as well as the consequent

order on sentence.

32. Appellants are on bail. Their bail bond-cum-surety bonds are

cancelled and discharged.

33. Both the appeals are disposed of accordingly.

AJIT BHARIHOKE, J.

JULY 02, 2010                                   A.K. SIKRI, J.
akb/pst