Inderpal vs State
2010 Latest Caselaw 1553 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Judgment reserved on: March 11, 2010
                                   Judgment delivered on: March 19, 2010


+      CRIMINAL APPEAL NO.193/1997

       INDER BAHADUR                                ....APPELLANT
               Through:             Mr. Mukesh Kalia, Advocate

                                Versus

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

                                         WITH

       CRIMINAL APPEAL NO.199/1997

       INDER PAL                                    ....APPELLANT
               Through:             Mr. Mukesh Kalia, Advocate

                                Versus

       STATE                                       .....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. The above referred appeals are directed against the impugned

judgment dated 10.04.1997 convicting the appellants for the charges

Crl.A.Nos.193/1997 & 199/1997 under Section 302 IPC and Section 323 IPC, both read with Section 34

IPC as also the consequent order on sentence dated 19.04.1997.

2. Briefly stated, case of the prosecution is that on 13.02.92, Police

Control Room informed Police Post Prashant Vihar that a quarrel was

going on in the Maidan near Central Delhi Housing Society, Sector 14,

Rohini. The information was recorded as DD No. 27 at 09:20 pm and

the enquiry was entrusted to HC Ved Prakash (PW17), who alongwith

Constable Ram Karan left for the spot.

3. The Police Control Room also informed the Police Control Van No.

69 which was on duty outside Prashant Vihar, Rohini. HC Ram Niwas

(PW14) was the Incharge of the said van and he went to the spot where

he found three persons lying injured, namely Baleshwar (deceased),

Ram Nath (PW4) and Inder Bahadur (appellant). He took Ram Nath and

Inder Bahadur to Hindu Rao Hospital. Another PCR Van also reached at

the spot and took the deceased Baleshwar to Hindu Rao Hospital. At

the hospital, Baleshwar was declared brought dead. Appellant Inder

Bahadur and PW4 Ram Nath were admitted. Their MLCs were prepared

and they were kept under observation.

4. PW17 HC Ved Prakash and Constable Ram Karan, on reaching the

spot, found that the injured persons had already been removed to the

hospital. HC Ved Prakash left behind Constable Ram Karan to guard

the spot and went to Hindu Rao Hospital. There he collected the MLCs

of the deceased, appellant Inder Bahadur as well as PW4 Ram Nath.

Crl.A.Nos.193/1997 & 199/1997 Ram Nath was declared fit for statement, while the appellant was

declared unfit for statement.

5. PW16 SI Om Prakash, Incharge, Police Post Prashant Vihar had

also received the message regarding the quarrel on his wireless set.

He therefore went to the spot where Constable Ram Karan informed

him that injured had been taken to Hindu Rao Hospital by the PCR Van

and that HC Ved Prakash had also gone there. SI Om Prakash also

went to Hindu Rao Hospital. The SHO, Inspector Balbir Singh (PW22),

on receiving the information, also reached at the spot and from there,

he went to the Hindu Rao Hospital.

6. At the hospital, MLCs of the deceased, the appellant and PW4

Ram Nath were handed over to the SHO, who recorded the statement

Ex.PW4/A of PW4 Ram Nath. In the said statement, PW4 Ram Nath

gave the eye-witness account of the occurrence. As per his statement,

the deceased, accused persons and he himself were all residents of

jhuggis in Sanjay Gandhi Colony, Sector 9, Rohini. Appellant Inder

Bahadur used to run a tea stall in his jhuggi and for some time, he was

claiming that the jhuggi in which the deceased was residing belonged

to him and was asking the deceased to vacate the same. The

deceased claimed that the jhuggi belonged to him. On 13.02.1992 at

about 07:30 pm, the appellant Inder Bahadur and his „bhanja‟ (nephew-

Inder Pal) visited the jhuggi of the deceased and started abusing Smt.

Radhika (PW3), wife of the deceased and kicked the jhuggi of the

Crl.A.Nos.193/1997 & 199/1997 deceased in order to demolish it. Smt. Radhika protested and asked

them to talk to her husband when he returned. In the meanwhile, the

deceased came there and the appellant and his co-accused took him to

the jhuggi of the appellant for discussion. He (witness) also followed

them. After reaching his tea shop, the appellant demanded from the

deceased if he would vacate the jhuggi or not. The deceased replied

that the jhuggi belonged to him. On this, the appellant brought an iron

pipe from his shop and his co-accused Inder Pal brought a „saria‟. On

the exhortation of the appellant, they both attacked the deceased with

pipe and „saria‟. When he (witness) tried to intervene, Inder Pal hit him

with „saria‟ on his back and right hand, resulting in injury. Thereafter,

the appellant and his co-accused ran away leaving behind the pipe and

the „saria‟. While running away, appellant tried to scale over a wall and

in the process, he fell down and got hurt. The other co-accused Inder

Pal succeeded in escaping. On the basis of this statement, Inspector

Balbir Singh got the instant case registered under Section 302 and 323

IPC read with Section 34 IPC vide FIR Ex.PW7/A.

7. During investigation, Inspector Balbir Singh recorded the

statement of Ms. Radhika in the hospital. He left a Constable in the

hospital to guard over the appellant Inder Bahadur and went to the

spot of occurrence. He inspected the spot, got it photographed,

prepared the site plan and seized blood samples, etc. Thereafter, he

went to the jhuggi of the appellant and recovered from there, weapons

of offence, i.e., pipe and the „saria‟ in presence of PW4 Ram Nath, who

Crl.A.Nos.193/1997 & 199/1997 identified the weapons of offence. Those weapons were sealed in

separate packets and taken into possession. Case property was then

deposited in Malkhana. Inspector Balbir Singh (PW22) conducted

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

appellant was arrested after his discharge from the hospital. However,

his co-accused Inder Pal could not be arrested.

8. Post mortem examination was conducted on 14.02.92 at 1:00 pm

by Dr. L.K. Barua of Civil Hospital vide his report Ex.PW9/A. The

following external injuries were found on the body:

i) One lacerated wound in frontal area of the head, placed antero posteriorly of the size 2½ " x ½" and it was bone deep;

ii) One obliquely placed bruise mark in front of abdomen of the size 8 cms. x 2.5 cms with raised congested margins with pale central area.

9. On internal examination the scalp underneath the injury

mentioned in external injury No.1 showed effusion of clotted blood.

Right frontal bone of the head showed one fractured line placed

obliquely upto the right temporal area. The brain showed think sub-

dural haemorrhagic clot on right front parietal area. Base of the skull

was fractured in the middle and right anterior cranial fossa. On

exploration of abdomen, liver was seen lacerated and the size of the

laceration was 4" x ½". There was linear effusion of blood clot under

the surface of muscle of abdomen beneath injury No.2.

Crl.A.Nos.193/1997 & 199/1997

10. As per the post mortem report, all the injuries were ante-mortem

and were caused by blunt force application. Injuries No.1 and 2 were

individually sufficient to cause death in ordinary course of nature and

death was due to coma associated with haemorrhagic shock resulting

from injuries.

11. The exhibits were sent to CFSL for serological examination.

Reports of CFSL are Ex.PW22/F, PW22/G and PW22/H. As per the

reports, human blood was detected on both the pipe and „saria‟ seized

during investigation, but blood group could not be ascertained.

12. On completion of the investigation, challan under Section

302/323 IPC read with Section 34 IPC was filed on 13.05.92 against the

appellant Inder Bahadur showing his co-accused Inder Pal as a

proclaimed offender. Co-accused Inder Pal was arrested on 13.07.92

and a supplementary challan was filed against him on 25.08.92. Both

the challans were consolidated and committed to the Sessions Court

for trial.

13. The appellant and his co-accused Inder Pal were charged under

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

Section 34 IPC. Both the accused pleaded innocence and claimed to be

tried.

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

as well as his co-convict Inder Pal, examined 22 witnesses.

Crl.A.Nos.193/1997 & 199/1997

15. The appellant as well as the co-convict were examined under

Section 313 Cr.P.C. to afford them an opportunity to explain the

incriminating evidence against them. Both of them denied the

prosecution version. Appellant Inder Bahadur explained that Itwari,

Noor Mohd, Ran Singh and Baleshwar (deceased) were bad characters

of the area and they used to indulge in eve teasing after consuming

liquor. On 13.02.92, a large number of people armed with „lathis‟ and

„saria‟ collected at some distance from his (appellant) jhuggi and

protested against their behaviour. On hearing commotion, he went to

the spot and noticed that a fight was going on between Itwari, Noor

Mohd. Run Singh and Baleshwar (deceased) on the one hand and 40/50

persons on the other hand. On seeing this, he got scared and tried to

run away. In the process, someone inflicted injury on his head and he

fell down on the ground and lost consciousness. Before he lost

consciousness, he saw the deceased Baleshwar running towards the

other side and people armed with „saria‟, „lathis‟ and pipes were

chasing him. The appellant claimed that he had not caused any injury

on the person of the deceased. According to him, his nephew Inder Pal

(co-convict) was not even in Delhi on the relevant day as he was in

Allahabad.

16. Appellant Inder Pal, in his statement under Section 313 Cr.P.C.

also denied the prosecution version and he set up a plea of alibi stating

that on 13.02.92, he was in Allahabad and that he was admitted as

Crl.A.Nos.193/1997 & 199/1997 indoor patient in Civil Hospital, Ram Nagar, Allahabad, for invective

hepatitis from 10.02.92 till 20.02.92.

17. The appellants, however, did not lead any evidence in their

defence.

18. Though the prosecution has examined 22 witnesses, material

witnesses relevant for the purpose of this appeal, however, are PW3

Ms. Radhika, wife of the deceased, PW2 Raju Gupta, PW4 Ram Nath

and PW9 Dr. L.K. Barua, the Autopsy Surgeon, who conducted the post

mortem.

19. As per the case of prosecution, PW2 Raju Gupta had witnessed

the occurrence. This witness, however, has not supported the case of

the prosecution and he has denied having seen the occurrence. He

also denied that his statement was recorded by the police.

20. PW4 Ram Nath is the star witness of the prosecution. He

deposed that in the evening of the day of incident, he was present at

the jhuggi of the deceased Baleshwar, when the appellant and his co-

accused, who were known as Mama Bhanja came there and started

kicking at the jhuggi. They also abused Radhika, wife of the deceased

Baleshwar. Baleshwar was not present at that time and the appellant

and his co-convict left saying that the deceased should be sent to them

as soon as he arrives. The deceased Balwshwar came after 15 minutes

and the appellant and his co-accused again came there. They took the

deceased along with them saying "Chalo Faisla Karenge". Witness

Crl.A.Nos.193/1997 & 199/1997 further stated that he followed them to the tea-stall of the appellant

and his co-convict. They threatened Baleshwar "Jhugi Khali Kar Dena,

Verna Saley Tumhen Maar Denge". Baleshwar replied "Bhai Jhugi

Hamari Hai, Hum Tum Ko Dekar Gaon Gaye Thei, Jhugi Khali Nahin

Karenge". On this, the appellant took out an iron pipe and his co-

convict, who was known as Bhanja, took out a „saria‟ and they started

attacking Baleshwar. When he (the witness) intervened, the accused

persons gave him blows on his right hand as also the right shoulder.

Therefore, he ran into the nearby jhuggi raising an alarm to save

himself. On hearing the noise, PW3 Radhika, wife of the deceased

Baleshwar also reached there. Chotewala, i.e. Bhanja, escaped from

the spot and Barewala, i.e., the appellant, while crossing over the

boundary wall of DDA flats, fell down and sustained injuries. The

witness also stated that both the appellant and his co-accused left the

„saria‟ on the spot. As per this witness, police reached at the spot and

seized the pipe Ex.P-1, „saria‟ Ex.P-2 and a pair of „chapples‟ of the

deceased Ex.P-3, besides the blood of the deceased from the spot and

the blood-stained clothes of the deceased. His statement Ex.PW4/A

was also recorded. He has proved the seizure memos Ex.PW4/B and

PW4/C. PW3 Radhika is wife of the deceased. She has corroborated

the version of PW4 Ram Nath to the extent that on the fateful evening,

her relative Ram Nath (PW4) was present at the jhuggi when appellants

came and took her husband with them and 10/15 minutes later, she

heard neighbours saying that the appellants Inder Bahadur and Inder

Crl.A.Nos.193/1997 & 199/1997 Pal have inflicted injuries on the person of the deceased. On this, she

reached at the spot. She also deposed that the appellants wanted the

deceased to vacate the jhuggi.

21. Learned Trial Judge found the testimony of PW4 and PW3

convincing and relying upon their testimony, he found the appellant

guilty of charge under Section 302/34 IPC and convicted them.

22. Learned counsel for the appellants, while assailing the impugned

judgment, submitted that the appellants have been falsely implicated

in this case, which is apparent from the fact that out of the two

purported eye-witnesses, PW2 Raju Gupta has not supported the case

of prosecution and even PW4 Ram Nath has given two inconsistent

versions about the incident in his examination-in chief and in his cross-

examination. Learned counsel pointed out that as per the version

given by PW4 Ram Nath in his cross-examination, the fatal injuries

were caused to the deceased by a crowd of 30-35 persons and that

version has gone uncontroverted as he was not subjected to the re-

examination or cross-examination by the prosecution, which could

easily have been done by seeking permission from the court. In

support of this contention, he has relied upon the judgment in the

matter of K. Anbazhagan Vs. Superintendent of Police, (2004)

3 SCC 767. Learned counsel submitted that PW4 Ram Nath is not a

reliable witness because of his unnatural conduct, as depicted from the

following circumstances:

Crl.A.Nos.193/1997 & 199/1997

(i) He did not inform the police regarding this incident even being a close relative (Co-brother) of the deceased.

(ii) He did not inform the wife of the regarding this incident.

(iii) He did not remove the injured deceased to the hospital.

(iv) He did not disclose the names of the assailants to the Doctors at the time of preparation of the MLC.

(v) He took an absolute U-turn in his testimony and made his entire testimony unreliable & untrustworthy.

23. He also submitted that a possibility of fabrication in the FIR

cannot be ruled out because of the fact that as per the witness, he did

not know the names of the appellants but those names do find mention

in his complaint statement Ex.PW4/A, which formed basis for the

registration of the case. Learned counsel also took a plea that the

identity of the appellant Inder Pal has not been established beyond

doubt as no TIP was conducted and the identification of the appellant

Inder Pal by the witnesses for the first time in the dock does not inspire

confidence. Lastly, it is submitted that the investigation of this case

has been conducted in an unfair manner, which stands established

from the daily diary record of the police station in respect of the

movement of the Investigating Officer and his fellow officers. Thus, it

is strongly urged before us that the impugned conviction of the

appellants be set aside and the appellants be acquitted of the charge.

24. Learned counsel for the State, on the other hand, has argued in

support of the impugned judgment. He submitted that PW4 Ram Nath,

who has given inconsistent versions in his examination-in-chief and the

Crl.A.Nos.193/1997 & 199/1997 cross-examination, can easily be termed as hostile witness irrespective

of the fact that the learned Prosecutor did not seek permission to

question the correctness of the version of PW4 in his cross-examination

by resorting to Section 154 of the Evidence Act. He submitted that the

law relating to appreciation of evidence of hostile witness is well

settled and it is a trite law that the evidence of hostile witness need not

be rejected ipso facto and the parties to the trial can take advantage of

the favourable portion therein, provided that said version is found to be

creditworthy by the court. The court however has to be extremely

cautious and circumspect in such circumstances. In support of this

contention, learned Prosecutor has relied upon the judgment Balu

Sonba Shinde Vs. State of Maharashtra, (2002) 7 SCC 543.

25. Before adverting to the rival contentions on the merits of the

case, it would be advantageous to have a look on the law relating to

the subject.

26. In the matter of K. Anbazhagan (supra), while disposing of the

transfer petitions seeking transfer under Section 406 Cr.P.C. of two

criminal cases pending in the court of 11th Additional Sessions Judge

(Special Court No. 1, Chennai) to a court of equal competent

jurisdiction in any other State, Hon‟ble Supreme Court, inter alia,

observed thus:

"29. On examining the facts of this case, as adumbrated above, on the touchstone of the decisions of this Court, as referred to above, the petitioner has made out a case that the public confidence in the fairness of trial is being seriously undermined. As revealed from the aforesaid recited facts, great

Crl.A.Nos.193/1997 & 199/1997 prejudice appears to have been caused to the prosecution which could culminate in grave miscarriage of justice. The witnesses who had been examined and cross-examined earlier should on such a flimsy ground never have been recalled for cross-examination. The fact that it is done after the second respondent assumed power as the Chief Minister of the State and the Public Prosecutor appointed by her Government did not oppose and/or give consent to the application for recall of witnesses is indicative of how judicial process is being subverted. The Public Prosecutor neither resorting to Section 154 of the Indian Evidence Act nor making any application to take action in perjury taken against the witnesses also indicates that trial is not proceeding fairly. It was the duty of the Public Prosecutor to have first strenuously opposed any application for recall and in any event to have confronted the witnesses with their statements recorded under Section 161 CrPC and their examination-in-chief. No attempt has been made to elicit or find out whether witnesses were resiling because they are now under pressure to do so. It does appear that the new Public Prosecutor is hand in glove with the accused thereby creating a reasonable apprehension of likelihood of failure of justice in the minds of the public at large. There is strong indication that the process of justice is being subverted.

........

31. .... On a combined reading of the aforesaid decisions of this Court, it emerges clearly that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. The decisions by this Court in the above- referred cases are rendered in cases where the Public Prosecutor sought permission to question his own witnesses by resorting to Section 154 of the Evidence Act and the court allowed the Public Prosecutor to cross-examine his own witnesses. In such cases the trial Judge has discretionary power to examine the entire testimony and accept that part of testimony which he finds to be creditworthy and act upon it. But in the present case, the public prosecutor has not sought permission from the Court by resorting to Section 154 of the Evidence Act even though the witnesses have resiled from their earlier testimony. In such a situation the subsequent testimony of the witnesses remains uncontroverted. Just to take an example, when the witness now states that his earlier evidence was given under pressure and no attempt is made to cross-examine such a witness, the Court may find it difficult if not impossible to accept the earlier statement. The trial Judge may find it difficult not to accept the subsequent testimony of the witness, which has remained uncontroverted. This causes great prejudice to the prosecution culminating in great miscarriage of justice."

27. The above judgment, in our considered view, is based upon its

own peculiar facts. In the above said case, the Supreme Court was

Crl.A.Nos.193/1997 & 199/1997 concerned with the issue of transfer of trials pending in the State of

Tamil Nadu to some other State in order to ensure just and fair trial,

wherein the Supreme Court observed that it was the duty of the Public

Prosecutor to first seriously oppose any application for recall of

witnesses and in any event to have confronted the witnesses with their

earlier statements under Section 161 Cr.P.C. as well as examination-in-

chief by resorting to Section 154 of the Indian Evidence Act. The

Supreme Court also observed that such a failure on the part of the

prosecutor to resort to Section 154 of the Indian Evidence Act to

controvert the subsequent testimony given by the witness in his cross-

examination causes a great prejudice to the prosecution culminating in

great miscarriage of justice.

28. In the instant case also, the prosecutor also did not resort to

Section 154 of the Indian Evidence Act to controvert the subsequent

version given by the witness PW4 Ram Nath in his cross-examination.

Does it mean that the failure of the prosecutor, whether unwitting or

deliberate, to resort to Section 154 of the Indian Evidence Act should

result in throwing away the testimony of PW4 Ram Nath in his

examination-in-chief or it is upon to the Judge concerned to appreciate

the evidence and consider whether as a result of the said contradictory

version of the witness in his cross-examination, the witness stands

thoroughly discredited or can still be believed in regard to a part of his

testimony? In our considered view, in such cases where the prosecutor

failed in his duty, the system cannot be permitted to be held hostage

Crl.A.Nos.193/1997 & 199/1997 to the whims of the investigating agency or the prosecutor and it is the

obligation of the Judge concerned to appreciate the evidence with extra

care and caution and if the Judge feels that some part of the testimony

of such a witness is reliable, there is no bar upon him to act on such

testimony.

29. In the matter of Balu Sonba Shinde Vs. State of

Maharashtra, (2002) 7 SCC 543, the Supreme Court, while dealing

with the evidentiary value of the evidence of a hostile witness, held

that the evidence of a hostile witness may not be rejected ipso facto

and the parties can take advantage of such portions of the evidence

which are found reliable by observing thus:

"14. It is at this juncture the prosecutor declared her a hostile witness and prayed for permission to cross-examine the witness -- upon, however, the leave being granted, PW 5 totally decried the factual aspect as contained in the complaint lodged, though, however, the thumb impression was admitted -- while it is true that declaration of a witness to be hostile does not ipso facto reject the evidence -- and it is now well settled that the portion of evidence being advantageous to the parties may be taken advantage of -- but the court before whom such a reliance is placed shall have to be extremely cautious and circumspect in such acceptance. Reference in this context may be made to the decision of this Court in State of U.P. v. Ramesh Prasad Misra[(1996)10 SCC 360] wherein this Court stated:

"It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted."

30. In the matter of Khujji Vs. State of M.P., AIR 1991 SC 1859,

there were three eye-witnesses to the incident of murder, two of them

including the complainant on the basis of whose statement the FIR was

registered, expressed their inability to identify the accused persons

Crl.A.Nos.193/1997 & 199/1997 while the third supported the prosecution version in his examination-in-

chief and also identified the accused persons. However, in cross-

examination he waivered on the question of identity of the accused.

The trial Court refused to place reliance on any of the eye-witnesses

but found the other evidence on record sufficient enough to convict the

accused persons. The High Court in appeal while maintaining the

conviction relied upon the evidence of the witness, who had identified

the accused in his examination-in-chief. The High Court held that the

examination-in-chief of this witness was recorded on 16th November,

1976, whereas, his cross-examination commenced on 15th December,

1976 i.e. after a month and in between, he seemed to have been won

over or had succumbed to threat. The High Court therefore took a view

that the subsequent attempt of the witness to create a doubt regarding

the identity of the appellant was of no consequence. The Apex Court in

appeal not only relied upon the evidence of the witness who had

turned hostile in cross-examination as was done by the High Court, but

also relied upon the evidence of that witness who had lodged the FIR

and who too had turned hostile. This is what the Apex Court observed.

"The High Court came to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of his examination-in-chief something transpired which made him shift his evidence on the question of identity to help the appellant. We are satisfied on a reading of his entire evidence that his statement in cross- examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief.

"..............We are, therefore, not impressed by the reasons which weighed with the trial Court for rejecting his evidence. We agree with the High

Crl.A.Nos.193/1997 & 199/1997 Court that his evidence is acceptable regarding the time, place and manner of the incident as well as the identity of the assailants."

31. In view of the submissions made by the learned counsel for the

appellants, the crucial question for determination is whether the

learned Trial Judge was right in relying upon the version of PW4 Ram

Nath given by him in his examination-in-chief or whether in view of the

summersault committed by him in his cross-examination, his testimony

ought to be rejected as unworthy of reliance?

32. On perusal of the Trial Court record, it transpires that the

examination-in-chief was recorded on 03.04.95. As per the

proceedings sheet recorded by the learned Trial Judge on 03.04.1995,

cross-examination of the witness was deferred on the request of the

learned Defence Counsel who insisted on supply of copy of CFSL report

to him before the commencement of cross-examination. Thereafter,

PW4 Ram Nath became untraceable and the court had to issue bailable

warrants for procuring his presence and ultimately, he was cross-

examined by the learned counsel for the appellants on 07.08.96 i.e.

after a gap of one year and four months. During this intervening

period, the appellant Inder Bahadur enjoyed the benefit of interim bail

for the period w.e.f. 21.06.95 to 05.07.95. Therefore, there is a strong

possibility that the appellant Inder Bahadur might have won over the

PW4 Ram Nath at that time. PW22 Inspector Balbir Singh, the

Investigating Officer has stated that on receipt of the information about

Crl.A.Nos.193/1997 & 199/1997 the incident, he went to the spot of occurrence and from there, he went

to the hospital. Thereafter, he made inquiry from PW4 Ram Nath and

recorded his statement Ex.PW4/A, which was sent to the police station

alongwith his endorsement Ex.PW22/A for the registration of the case.

Perusal of rukka Ex.PW22/A reveals that it was sent to the police

station on 13.02.92 at 11:55 pm. PW4 Ram Nath, in his examination-

in-chief, is categoric that his statement Ex.PW4/A was recorded by the

police and he appended his thumb impression on the said statement.

The witness Ram Nath has nowhere stated either in the examination-

in-chief or in the cross-examination that the aforesaid statement was

not recorded as per his narration or that he was forced to make such a

statement. From this, it can be safely inferred that the statement

Ex.P4/A was voluntarily made by PW4 Ram Nath, which, for all practical

purposes, is the FIR. It is settled law that the FIR in a criminal case,

though not substantive evidence, can be used for the purpose of

corroboration or contradiction of a witness. The initial version given by

PW4 Ram Nath wherein he has implicated the appellants as the

assailants who caused the fatal injuries to the deceased, is in

consonance with the version detailed in the Ex.PW4/A. Therefore, we

do not find any reason to suspect the correctness of the version.

33. On analysing the situation from a different angle, we find that in

the cross-examination, the appellants have tried to project a story that

since the complainant and his three friends used to indulge in eve-

teasing, the neighbouring jhuggiwalas were agitated and on the

Crl.A.Nos.193/1997 & 199/1997 relevant day, 30-35 jhuggiwalas who were armed with dandas etc.

attacked the deceased and caused him injuries. PW4 Ram Nath also

stated in his cross-examination that when he intervened to save the

deceased, he also sustained injuries at his fingers and the right

shoulder. If that version is to be believed, then in an attack by 30-35

strong armed crowd, the deceased Baleshwar should have sustained

multiple injuries on his body. This, however, is belied by the post-

mortem report Ex.PW9/A, wherein it is recorded that only two injuries

were found on the person of the deceased i.e. one lacerated wound in

frontal area of the head, placed antero posteriorly of the size 2½ " x

½" and it was bone deep and one obliquely placed bruise mark in front

of abdomen of the size 8 cms. x 2.5 cms with raised congested margins

with pale central area. This circumstance also belies that the

statement made by PW4 Ram Nath during his cross-examination which

appears to be the result of some hobnobbing done by the appellants

during the time gap between the recording of examination-in-chief and

the cross-examination.

34. PW3 Radhika is the wife of the deceased. Admittedly, she was

residing in the same jhuggi cluster. She was examined by the

prosecution to prove the motive that the appellants wanted the

deceased to vacate his jhuggi. She has stated that on 13.03.92 at

around 07:00 pm, the appellants came to her jhuggi and took the

deceased along with them. 10/15 minutes later, she heard a noise of

jhuggiwalas that the appellants had inflicted injuries on the person of

Crl.A.Nos.193/1997 & 199/1997 the deceased Baleshwar. Someone informed the police and the police

reached at the spot and removed her husband to Hindu Rao Hospital.

It is pertinent to note that PW3 Radhika was examined in the court on

three occasions. Her examination-in-chief was recorded on 28.03.95.

She was cross-examined for first time on 11.12.95 and in that cross-

examination, though, a suggestion was put to her that husband

alongwith the Noor Mohd., Ituwari and Ran Singh used to take drinks

and indulge in eve-teasing regarding which the residents of locality

including Ramesh had made complaints, no suggestion was put to her

in her cross-examination dated 11.12.95 that the fatal injuries were

caused to the deceased Baleshwhar by the crowd of 30-35 persons.

Even in her subsequent cross-examination dated 01.08.96, no such

suggestion was given to PW3 Radhika Devi who was resident of the

jhuggi in the vicinity of the spot of occurrence. Only suggestion given

to her was that she did not hear the noise that the appellant had

inflicted injuries on the person of her husband, which she denied. This

circumstance also indicates that the defence of the appellant that the

deceased Baleshwar was given fatal injuries by the neighbouring

jhuggiwalas is only an afterthought and PW4 Ram Nath has given false

statement in that regard in his cross-examination.

35. PW4 Ram Nath, in his cross-examination also stated that he had

seen the appellant Inder Bahadur for the first time on the day of

occurrence and he saw the appellant Inder Pal for the first time in the

court when he came for evidence. If that version is to be believed then

Crl.A.Nos.193/1997 & 199/1997 it is obvious that the witness had no enmity or motive to falsely

implicate either of the appellants as he had no axe to grind to suspect

them. That being the case, it remains unexplained as to why he

named both of them in his complaint statement Ex.PW4/A which was

recorded on the same day within few hours of the occurrence. This

circumstance also indicates that the statement made by the witness in

his cross-examination, which was recorded after a gap of one year and

four months from the date of his examination-in-chief, is false and he

has tried to come to the rescue of the appellant by giving a distorted

version.

36. In view of the above, we find no infirmity in the impugned

judgment of learned Trial Judge finding the appellant guilty of the

offence under Section 302/34 IPC relying upon the version of PW4 Ram

Nath in his examination-in-chief.

37. The next criticism to the impugned judgment is that the learned

Trial Court has failed to take note of the fact that the investigation of

this case has been conducted in an unfair manner. Expanding on the

argument, learned counsel for the appellants has drawn our attention

to the DD entries No.52B dated 13.02.92(Ex.PW12/A) and DD No.56

dated 13.02.92 (Ex.PW20/DC). He has submitted that as per the DD

entry Ex.PW12/A, the Investigating Officer, Inspector B.S. Dahiya left

the Police Station on 13.02.92 at 10:15 pm for patrol in the area and as

per DD No.56 Ex.PW20/DC, the Investigating Officer returned back to

Crl.A.Nos.193/1997 & 199/1997 the Police Station after the patrol duty at 11:50 pm in the night. In the

arrival entry, there is no mention about the correctness or the visit of

the Investigating Officer to Hindu Rao Hospital as well as the spot of

occurrence. Learned counsel has pointed out that as per the case of

the prosecution and the rukka Ex.PW22/A, it was sent to the Police

Station by the Investigating Officer, Inspector B.S. Dahiya at 11:55 pm

from the spot of occurrence. If that was the case, then the arrival

entry Ex.PW20/DC has to be false. From this, learned counsel has

urged us to infer that this is a case of ante-timing of FIR which has

been recorded after due deliberations to falsely implicate the

appellants.

38. We are hardly convinced with the aforesaid argument.

Ex.PW20/DC appears to be the purported photocopy of the daily diary

register. On perusal of this document, it transpires that it also contains

the entries recorded at Serial Nos.53 to 59. In none of these entries,

the date is mentioned. Even at the top of the page, the columns meant

for date and time of opening and closing of DD reports are blank.

Therefore, it cannot be safely concluded that DD entry No.56

Ex.PW20/DC pertains to the date 13.02.92. Further, careful perusal of

DD No.56 reveals that there are some interpolations regarding the

name and designation of the officer whose arrival at the Police Station

is recorded in the entry. Further, it transpires from the record that the

photocopy Ex.PW20/DC was put to the witness in his cross-examination

by the learned counsel for the appellants without summoning the

Crl.A.Nos.193/1997 & 199/1997 actual DD register. It is not clear from which source the counsel for

the appellants came into possession of said photocopy, therefore, a

possibility of fabrication in respect of this DD report cannot be ruled

out, which has not been properly proved by summoning the actual DD

register. As such, we find no reason to suspect the fairness of

investigation or the correctness of the version of PW4 Ram Nath given

in his examination-in-chief.

39. Another contention raised by the learned counsel for the

appellants is that the identity of the accused persons has not been

established beyond doubt. The names of the accused persons given by

the appellants in the statement of Ram Nath Ex. PW4/A, according to

the learned counsel for the appellants could not have been given by

him because in his examination-in-chief, PW4 Ram Nath did not

mention the names of the accused persons and in his cross-

examination he stated that he saw the appellant Inder Bahadur for the

first time on the date of occurrence and he had never seen the

appellant Inder Pal prior to his examination as a witness in the court.

40. The learned Trial Judge has dealt with this argument in para 39

of his judgment by observing thus:

"39......In my view this contention of the ld. Defence counsel does not carry any weight. The deceased Baleshwar, the accused persons and PW Ram Nath all used to live in the same jhuggi cluster of Sanjay Gandhi Camp, Sector 9, Rohini. Therefore, it is possible that PW4 Ram Nath knew the names of accused persons which are duly mentioned in his statement Ex.PW4/A on which the FIR of this case is based. In Ex.PW4/A, PW4 Ram Nath has also described the accused Inder Bahadur as Mama and accused Inder Pal as Bhanja.

Crl.A.Nos.193/1997 & 199/1997 This description he has repeated in his examination-in-chief in the court. In the circumstances, I am of the view that identity of the accused persons was never in dispute".

41. We are of the view that the learned trial Judge has rightly

rejected the argument and we find no infirmity in the approach

adopted by him, particularly when the witness physically identified

both the appellants in the court.

42. The last contention of the learned counsel for the appellants is

that the prosecution case regarding the place of recovery of iron pipe

Ex.P1 and saria Ex.P2 is full of infirmity, which raises a doubt against

the correctness of the prosecution case, particularly when PW4 Ram

Nath has given two totally inconsistent versions in his examination-in-

chief and the cross-examination. He has pointed out that according to

PW4 Ram Nath, the appellants had left the saria as well as the pipe on

the spot of occurrence whereas the Investigating Officer Inspector

Balbir Singh, PW22 stated that saria and iron pipe were recovered from

the jhuggi of the appellant.

43. In our considered view, this minor contradiction regarding the

place of recovery of the iron pipe and the „saria‟, which has cropped up

in the testimony of eye witness PW4 Ram Nath and the Investigating

Officer cannot be taken as a reason to discard the version of PW4 Ram

Nath given in his examination-in-chief, which finds corroboration from

the recovery memo Ex.PW4/C. PW22 Balbir Singh testified that the

Crl.A.Nos.193/1997 & 199/1997 „saria‟ and the pipe were seized from the spot of occurrence vide

memo Ex.PW4/C. On perusal of the memo Ex.PW4/C, which is

contemporaneous record of recovery, it transpires that the iron pipe

and the „saria‟ were seized by the Investigating Officer from the spot of

occurrence, which spot, as per the scaled site plan Ex.PW11/A, is

outside the jhuggi of the appellants. Otherwise also, the Investigating

Officer, Balbir Singh was examined as a witness in January, 1997, i.e.,

after a gap of almost five years from the date of occurrence.

Therefore, minor discrepancies regarding the place of occurrence, etc.

in his testimony can safely be attributed to failure of memory due to

lapse of time. Thus, we do not find any merit in this contention also.

44. In view of the discussions above, we are of the view that

prosecution has been able to prove beyond reasonable doubt that the

appellants, in furtherance of their common intention, with a view to

pressurise the deceased Baleshwar took him to their jhuggi and

threatened him to vacate the jhuggi. They asked him to vacate the

jhuggi and failing which, threatened to kill him and when the deceased

defied them by saying that the jhuggi belonged to him and he would

not vacate it, they attacked him with iron-pipe Ex.P1 and saria Ex.P2

and caused him fatal injuries, resulting in his death. Thus, we do not

find any infirmity in the impugned judgment of learned Additional

Sessions Judge convicting both the appellants for the offences of

murder of Baleshwar punishable under Section 302 IPC with the aid of

Section 34 IPC.

Crl.A.Nos.193/1997 & 199/1997

45. The appeal is accordingly dismissed.

46. The appellants are on bail. They be taken into custody and sent

to Jail to undergo the remaining period of sentence.

AJIT BHARIHOKE, J.

MARCH 19, 2010                                A.K. SIKRI, J.
pst





Crl.A.Nos.193/1997 & 199/1997