Sonu Arora vs State
2010 Latest Caselaw 3405 Del

              THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment delivered on: 21.07.2010

+             Crl.A. 241/1997

SONU ARORA                                                     .....Appellant

                                      - versus -
STATE                                                          .....Respondent

Advocates who appeared in this case:
For the Appellant       : Ms Rebecca John
For the Respondent      : Mr Lovkesh Sawhney, APP for the State.

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN

      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

V.K. JAIN, J.

1. This appeal is directed against the judgment dated

29th April 1997 and Order on Sentence dated 30th April 1997,

whereby the appellant was convicted under Section 302 of IPC

read with Section thereof, for committing murder of one

Zaheer.

2. In the night intervening 18th/19th October 1993,

Police Control Room informed Police Post Sangam Vihar that

two boys had been stabbed at Ratia Marg, Sangam Vihar, Gali

No. 17. On receipt of this information, SI Rai Singh went to

the spot, where one dead body with stab wounds was found

lying. On enquiry, the name of the deceased was found to be

Nizam. He came to know that the other person, injured in the

same incident, had been taken to the hospital by PCR Van.

When SI Rai Singh reached AIIMS, he came to know that the

other injured namely Zaheer had been brought dead to the

hospital. No eye-witness met him either in the hospital or on

the spot. He, thereafter made an endorsement on the copy of

DD No. 38 vide which the information received from the Police

Control Room was recorded at the Police Station, and got the

FIR registered.

3. The case of the prosecution, in brief, is that one Lalu

Prasad Yadav owed some money to Mahmood, co-accused of

the appellant. In the night of 18th October 1993, when Lalu

Prasad Yadav was passing along with his companion Manoj

from in front of Raj Karan Paan Bhandar of Ratia Marg,

Mahmood met him along with his three companions namely,

Nanhey, Kamal and the appellant Sonu, who were previously

known to him. Mahmood demanded money, which Lalu

Prasad owed to him. Since Lalu Prasad did not have money

with him, Mahmood asked him to serve paan (betel leaf) to all

of them. Since Lalu Prasad did not have money with him, he

declined to serve paan to them, whereupon they started

beating him. Seeing this, his companion Manoj called Zaheer

and his other friends. Seeing the friends of Lalu Prasad

coming, Mahmood and his companions ran away from the

spot, but the appellant Sonu was apprehended by Lalu Prasad

and his companions, who started beating him. Seeing this,

Mahmood, Nanhey and Kamal returned to the spot. Mahmood

caught Zaheer, whereas Nanhey caught Nizam. Kamal gave

knife blow on the chest of Zaheer whereas Sonu gave two knife

blows to Nizam. Both the injured fell on the spot.

4. The prosecution examined 17 witnesses in support of

its case. No witness was examined in defence. One Raj Karan

was examined as a Court witness. The case against the

appellant rests solely upon the testimony of two eye witnesses

namely Lalu Prasad Yadav and Manoj Kumar, there being no

circumstantial evidence to connect him with the commission

of crimes.

5. Lalu Prasad Yadav came in the witness box as PW-2

and stated that in the night of 18th October 1993 at about

11.00 PM, he along with his friend Manoj, came out of his

quarter and went to the paan shop, where Mahmood, to whom

he owed Rs.10/-, met him. Mahmood, who was accompanied

by three other persons, including the appellant Sonu, asked

him to serve paan to them. He, however, could not serve paan

to them, since he did not have money. Those persons then

started beating him. Seeing this, Manoj called Zaheer,

whereupon all of them, except Sonu, ran away. He further

stated that they started beating Sonu. Seeing Sonu being

beaten, Mahmood, Kamal and Munna alias Nanhey returned

to the spot. Mahmood caught Zaheer, whereas Nizam was

caught by Munna alias Nanhey. According to him, appellant

Sonu then stabbed Zaheer. Nizam died on the spot, whereas

Zaheer was taken to hospital by PCR Van. He further stated

that both the assailants ran away, whereas he went to hospital

with Zaheer, who died on the way to the hospital. He returned

to the spot in PCR Van. This witness was cross-examined by

the learned Addl. PP and during cross-examination, he denied

that Kamal also had stabbed Zaheer. He maintained that

Mahmood had held Zaheer when he was stabbed by Sonu.

6. PW-3 Manoj Kumar, whom the prosecution claimed

to be the other eye witness to the incident, stated that in the

night of 18th October 1993, he had accompanied Lalu Prasad

to the paan shop, at about 11.00 PM. He further stated that

3-4 boys, who were present at paan shop, asked Lalu to serve

paan to them. When Lalu declined saying that he had no

money, those boys started beating him. He then went to

Nizam and Zaheer, friends of Lalu, and called them. He

further stated that when the quarrel intensified, being scared,

he ran away from the spot and went to Okhla. He thus does

not prove any charge against the appellant.

7. PW-11 Inspector Rai Singh is the police officer, who

went to the spot in the night of 18th October 1993. He stated

that when he reached the spot, one dead body was found lying

there. He was informed that other injured had been taken to

hospital at PCR Van. No eye-witness met him on the spot.

Leaving a Constable on the spot, he went to AIIMS, where

Nizam was found brought dead. No eye-witness met him in

the hospital. He made an endorsement on the copy of DD and

got the FIR registered. He then returned to the spot along with

Inspector Raghbir Singh, who had reached the hospital in the

meanwhile.

8. PW-17 Inspector Raghbir Singh is the Investigating

Officer of this case. He has stated that after returning to spot

along with SI Rai Singh, he prepared the site plan at the

instance of Lalu Prasad. During cross-examination, he stated

that Lalu Prasad, who had first gone to the hospital and then

returned to the spot from there, met them at the site of crime

at about 1.30 A.M. He also stated that the statement of Lalu

Prasad was recorded next day, at about 5.30 PM.

9. In his statement under Section 313 Cr.P.C. the

appellant denied all the allegations against him. He also

denied having met Lalu Prasad and having been beaten by him

and his associates.

10. CW-1 Raj Karan has stated that he had a paan shop

in Gali No. 16 Sangam Vihar, which was closed for two days.

He later came to know that there was stabbing and murder at

that place and the shop was opened after eight days.

11. In his statement under Section 161 Cr.P.C., Shri

Lalu Prasad claimed that Mahmood had held deceased Zaheer

and knife blow to him was given by Kamal. When he came in

the witness box, Lalu Prasad stated that it was the appellant

Sonu who had stabbed deceased Zaheer. Even during cross-

examination by the learned Additional PP he maintained that

it was the appellant who had stabbed Zaheer. Thus, there is

contradiction in the statement given by him under Section 161

Cr.P.C. and his deposition in the court as to who had stabbed

deceased Zaheer. In his Statement under Section 161 Cr.P.C.

Lalu Prasad stated that Naneh had held Nizam whereas it was

the appellant Sonu who had stabbed him, but, when he came

in the witness box, Lalu Prasad stated that it was Kamal who

had stabbed deceased Nizam. Thus, there is contradiction in

his statement under Section 161 Cr.P.C. and his deposition in

the Court also as to who had stabbed deceased Nizam.

If the discrepancies found in the testimony of a

witness are normal and attributable to loss of memory with

the passage of time or they are on matters which are

peripheral or trivial, not forming the core of the case, his

testimony cannot be rejected on account of such minor

variations or infirmities. But, where the contradiction relates

to the main incident forming core part of his testimony, that

could depending upon the nature of the contradiction and

other facts and circumstances of the case, seriously affect the

credibility and truthfulness of the witness since he is not

expected to give contradictory version with respect to the

important material parts of the incident which he claims to

have witnessed.

12. In his cross-examination, Lalu Prasad stated that he

had put Zaheer in PCR van and bloodstains had come on his

shirt. He also stated that the bloodstains were shown by him

to the police but his clothes were not seized by the police.

There is no explanation for not seizing the bloodstained

clothes of Lalu Prasad despite his having shown them to the

police. The failure of the Investigating Officer to seize the

clothes of Lalu Prasad is an indication that, in fact, he had not

witnessed the actual stabbing and had not put Zaheer in PCR

van, as claimed by him. Had he done so, the Investigating

Officer would definitely have seized his bloodstained shirt.

It would also be pertinent to note here that though

Lalu Prasad claims to be a friend of deceased Zaheer and also

claims to have accompanied him to AIIMS in PCR van, his

name does not find mention in the MLC of the deceased

against the name of relative/friend and it is name of HC

Virender Singh which has been shown against the

relative/friend column of the MLC. If Lalu Prasad had

accompanied deceased Zaheer to the hospital, as claimed by

him, his name and not the name of the police official would

have been recorded against the column of „relative or friend‟ of

the injured brought to the hospital. These facts and

circumstances lead to a strong inference that either Lalu

Prasad had not witnessed this incident at all or he had left

when the quarrel intensified and that is why, he did not meet

the police officer either on the spot or in the hospital and his

shirt was not seized by the police.

Also, had Lalu Prasad witnessed the stabbing of

Zaheer and Nizam, there would have been no contradiction, in

the statement given by him to the police on the one hand, and

his deposition during trial on the other hand, with respect to

the core part of his testimony i.e. who had stabbed Zaheer and

who had stabbed Nizam.

13. In his deposition Lalu Prasad stated that Raj Karan,

Paanwala, was present at his shop and he must have

witnessed the incident. The Investigating Officer did not

examine Raj Karan, despite the claim made by Lalu Prasad

about his having witnessed the incident. When Raj Karan was

examined by the court, he contradicted Lalu Prasad by saying

that his shop was closed on that day, since he had an ulcer in

his body. He was also emphatic that no one else had opened

his shop in his absence.

14. There is no MLC or any medical examination of Lalu

Prasad though he claims to have been beaten during the

incident. It is quite strange that despite the fact that the

dispute had arisen between Lalu Prasad and Mahmood, no

physical injury was caused to him while giving fatal knife

blows to his friends Zaheer and Nizam, who had come to the

spot only to save him from Mahmood, Sonu, Kamal and

Munna @ Nanhey. In fact, Lalu Prasad should have been their

first target when they returned to the spot, seeing their friend

Sonu being beaten by them. Therefore, absence of any

physical injury on the person of Lalu Prasad is yet another

indication that he had fled from the spot before Zaheer and

Nizam were stabbed and that is why no physical injury was

found on his person.

15. The case of the prosecution is that the appellant

Sonu was beaten by Lalu Prasad and his companions and

seeing Sonu being beaten, his friends Mahmood, Kamal and

Nanhey had returned to the spot. It is also the case of the

prosecution that at that stage the appellant Sonu took out the

knife which he was carrying with him and stabbed deceased

Nizam. If the appellant was carrying a knife with him, he

would have used it, when he was being beaten, so as to save

himself from further beating. But, admittedly, knife was not

even taken out by the appellant Sonu while he was being

beaten. Once Mahmood, Kamal and Nanhey @ Munna @ Anis

had joined him, there was no occasion for him to take out

knife, since being four in number, they were in a position to

out power deceased Zaheer and Nizam. It is difficult to accept

that a person despite having a knife with him would not use it

when he is being beaten but would choose to use it when he

has already received help in the form of his friends who came

to his rescue. Therefore, it is difficult to accept the version of

stabbing given by Lalu Prasad.

16. Ex.PW-17/C are the brief facts prepared by the

Investigating Officer on 20th October, 1993. The case of the

prosecution is that the statement of Lalu Prasad was recorded

at 5.30 pm on 19th October, 1993, meaning thereby that these

brief facts were prepared after the statement of Lalu Prasad

had been recorded. In the brief facts prepared by him, the

Investigating Officer did not attribute any stabbing to the

appellant Sonu. The facts recorded by the Investigating

Officer, to the extent they are relevant, are as under:

"Finding no one there, associates of Lalu Prasad Yadav came back but deceased Zaheer and M.Nizam kept their presence at Ratiya Marg, near Gali No. 16, 17, Sangam Vihar, the accused persons Mahmood and Anis who were concealing into lanes were joined by their associates Kamal and Sonu. The accused sent their associate Sonu to find out as to what Zaheer and Nizam are planning. Zaheer and Nizam caught Sonu and started beating him. Finding that their associate is being beaten, accused persons Mahmood, Anis and Kamal came out of lanes and attacked on Zaheer and Nizam with knives and caused their death."

If Lalu Prasad had witnessed the stabbing and his

statement has been recorded by 5.30 pm on 19th October,

1993, there was no reason for the Investigating Officer not to

mention this, being one of the most material facts of the case,

in the note prepared by him. In his note, the Investigating

Officer gave a detailed version of the incident that took place

in the night intervening 18/19th October, 1993. Despite that,

there is no mention of the appellant Sonu having given knife

blow to deceased Zaheer or to deceased Nizam. In fact, the

way the incident has been narrated in the brief facts prepared

by the Investigating Officer, it appears that Lalu Prasad had

come back from the spot and only Zaheer and Nizam remained

present at Ratia Marg, Near Gali Nos.16 & 17 and thereafter

the accused persons sent the appellant Sonu to ascertain what

Zaheer and Nizam were planning and it was at that time that

Zaheer and Nizam caught Sonu and started beating him. The

Investigating Officer specifically records that Mahmood, Anis

and Kamal came out of lanes in which they were concealing

themselves and attacked Zaheer and Nizam with knives and

caused their death. Thus, he clearly imputed the murder of

Nizam and Zaheer only to Mahmood, Anis and Kamal, and did

not say a word about any role having been played by the

appellant Sonu in their murder. Therefore, the brief facts

recorded by the Investigating Officer on 20th October, 1993

totally demolish the version given by Lalu Prasad, as far as the

appellant Sonu is concerned.

17. In Balaka Singh & Others Vs. The State of Punjab:

AIR 1975 SC 1962, in the brief facts attached to the Inquest

Report, the names of the accused Balaka Singh, Joginder

Singh, Pritam Singh, Darbara Singh and Jarnail Singh were

mentioned. Also, there was no reference at all to the accused

Makhan Singh, Sucha Singh, Teja Singh and Inder Singh. It

was not mentioned in the report that accused Teja Singh and

Inder Singh had incited or exhorted the other accused

persons, which the case of the prosecution was. There was no

reasonable explanation for this important omission in the

inquest report. The High Court, in these circumstances, held

that omission of the name of four accused, namely, Makhan

Singh, Sucha Singh, Teja Singh and Inder Singh, who were

acquitted by it, was a very important circumstance which went

in favour of the accused. The view taken by the High Court

was upheld by the Supreme Court which felt that the

omission, in the first place, threw doubt on the complicity of

the aforesaid four accused and, secondly, it also casts serious

doubt on the veracity and authenticity of the FIR itself. The

Supreme Court found no justification for not mentioning their

names in the inquest report despite the claim of the

prosecution that they had taken an active part in the assault

on the deceased.

In the present case also there is no explanation for

the absence of any role to the appellant Sonu in the brief facts

prepared by the IO despite the case of the prosecution that the

statement of the eye-witness Lalu Prasad had been recorded

before the brief facts were prepared.

18. According to the Investigating Officer, though Lalu

Prasad had met him on the spot at about 1.30 am and he had

also obtained signatures of the witness on the memos

prepared on the spot, his statement under Section 161 Cr.P.C.

was recorded by him only at 5.30 pm. There is absolutely no

explanation from the prosecution for this abnormal delay in

recording the statement of Lalu Prasad.

Ex.PW-17/A is the site plan stated to have been

prepared by the IO in the night of 18/19 October, 1993 at the

instance of Lalu Prasad. The site plan indicates Point „G‟ as

the place where Lalu Prasad had fight with accused persons

and was beaten in front of Paan shop of Raj Karan by

Mahmood and Anis @ Munna @ Nanhey. It has also been

noted in the plan that Lalu Prasad and Raj Karan saw the

incident from the rear point „G‟. These notings on the site plan

show that the Investigating Officer had already examined Lalu

Prasad in respect of the incident in question. Without

questioning him, the Investigating Officer could not have

known the point where Lalu Prasad had fight with the accused

persons and was beaten in front of the Paan shop of Raj

Karan. Similarly, without talking to him the Investigating

Officer could not have known the place from where he had

seen the incident taking place. No explanation, however, has

been given by the prosecution for recording the statement of

Lalu Prasad at 5.30 pm, i.e., after a gap of about 16 hours

from the time he met the Investigating Officer. The

unexplained delay in recording the statement of Lalu Prasad

needs to be viewed in the light of the fact that he did not meet

the police officer, SI Raj Singh, either on the spot when he

reached there on receipt of information from Police Control

Room or in the hospital, despite his claim that he had

accompanied PCR officials to the hospital in their van and had

returned to spot with them in the same van and no official on

duty in PCR van has been produced to prove that Lalu Prasad

had met them on the spot, had accompanied them to AIIMS

and then returned to spot with them in their van. The delay

also needs to be viewed in the light of the fact that there is

material contradiction in the statement given by Lalu Prasad

to the police and his statement in the court as regards who

stabbed whom Raj Karan.

19. As held by the Supreme Court in State of UP Vs.

Mundrika & Others: (2001) 9 SCC 346, the unexplained delay

in recording of statement of material eye-witness throws a

serious doubt as to whether he was really an eye-witness or

not. If the delay in recording the statement of eye-witness

remains unexplained, the inference is that either he was not

an eye-witness or the version of the incident given by him was

a fabricated version. In Maruti Rama Naik Vs. State of

Maharashtra : (2003) 10 SCC 670, a witness examined as

PW-3 was examined by police after one day of the incident.

The explanation given by the Investigating Officer with regard

to the delay in recording his statement was that the witness

was injured and had to be taken to Bombay and brought back

to Panvel for treatment. Considering the nature of his injury

and the opportunity available to the Investigating Officer to

record his statement, Supreme Court rejected the explanation

and disbelieved the witness.

20. In the present case, no attempt at all has been made

by the Investigating Officer to explain the abnormal delay of 16

hours in recording the statement of Lalu Prasad despite his

being available to the police and his signatures having been

taken on the memos alleged to have been prepared on the

spot. The delay on the part of the Investigating Officer in

recording the statement of Lalu Prasad when considered in the

light of the fact that there is material contradiction in his

statement to the police and his deposition in the court as to

who had a stabbed whom, there was no visible injury on the

person of Lalu Prasad despite the incident having started on

account of an altercation between him and accused Mahmood,

the version of the incident given by him as regards the role

attributed to the appellant Sonu is contradictory to the version

recorded in the brief facts prepared by the Investigating Officer

on 20th October, 1993. He did not meet the Investigating

Officer either in the hospital or at the spot, his clothes were

not been seized despite his assertion that he had shown

bloodstained clothes to the Investigating Officer and Raj

Karan, Paanwala, has not supported his claim regarding his

(Raj Karan‟s) being present at his shop creates, serious doubt

on the truthfulness of the deposition of this witness. There is

a strong probability of Lalu Prasad having left the spot before

the stabbing took place. That also explains his not having met

the Investigating Officer either in the hospital or at the spot,

no bloodstained clothes of this witness having been seized,

contradiction being found in his statement, as to who had

stabbed whom and absence of any role attributed to the

appellant Sonu in the brief facts recorded by the Investigating

Officer on 20th October, 1993.

21. Of course delay in recording the statement of eye-

witness is no ground for doubting and discarding the case of

the prosecution on this ground alone. But, the delay puts the

court on guard to search for an explanation, if any. If the

delay is explained, testimony of the witness cannot be rejected

on this ground. If the delay remains explained, there is a

possibility of embellishment creeping in and a coloured or

distorted version of the incident being introduced by the

witness, which can prove to be fatal to the prosecution.

22. As noted earlier, PW-3 Manoj has not supported the

prosecution. Since we are not inclined to rely upon the

testimony of PW-2 Lalu Prasad, as far as the role attributed to

the appellant Sonu is concerned, and there is no other

evidence against the appellant, he is given benefit of doubt and

is hereby acquitted.

23. The appeal stands allowed.

V.K. JAIN, J

BADAR DURREZ AHMED, J

July 21, 2010 Ag/RS