Mahender vs State
2010 Latest Caselaw 4759 Del

          THE HIGH COURT OF DELHI AT NEW DELHI
%                          Judgment Reserved on: 30.09.2010
                           Judgment Pronounced on: 08.10.2010
+            CRL.A. 322/1997
REHMAN                                             ..... Appellant

                                 - versus -
STATE                                            ..... Respondent

And + CRL.A. 174/1998 MAHENDER ..... Appellant

- versus -

STATE                                            ..... Respondent

Advocates who appeared in this case:
For the Appellant       :Mr K.B. Andley, Sr. Advocate
                        with Mr. M.L. Yadav and Mr. M.
                        Shamikh
For the Respondent      :Ms Richa Kapoor, APP

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

31.07.1997 and Order on Sentence dated 12.08.1997,

whereby the appellants were convicted under section 302 of

the Indian Penal Code (IPC) read with section 34 thereof and

were sentenced to imprisonment for life and to pay fine of

`1,000/- each or to undergo rigorous imprisonment for six

months each in default.

2. The case of the prosecution, in brief, is that on

31.08.1993 there was a severe altercation between deceased

Samad on one hand and the appellants Rehman and

Mahender on the other hand, when the appellants told the

deceased that it was not proper for him to make complaints

against others. This is also the case of the prosecution that

on 01.09.1993 also there was an altercation between them

at about 11:00 A.M. Then, at about 2:30 A.M. they

committed murder of Samad on the street of D-Block, New

Seema Puri, using a hockey and a danda for the purpose.

The informant Rafiq took him to Guru Teg Bahadur Hospital

in a rickshaw, where the deceased was declared dead.

3. The prosecution examined 16 witnesses in support

of its case, one witness was examined in defence.

4. The case of the prosecution against the appellants

rests on ocular as well as circumstantial evidence. Three

persons, namely, Rukia, Rafiq and Salim were stated to be

eye witnesses of the incident.

Ocular Evidence

5. Salim came in the witness box as PW-1 and stated

that when he reached the spot he came to know of quarrel

between Samad and the accused persons, though he

himself did not witness the incident. He was not able to say

how the deceased had received injuries. He claimed that no

injury was inflicted in his presence. He was cross-examined

by the learned Addl. Public Prosecutor, but nothing came

out in the cross-examination, which may connect either of

the appellants with the murder of Samad.

6. Rukaia came in the witness box as PW-2, but did

not support the prosecution. She claimed that no quarrel

had taken place at her shop and no one was killed in her

presence. She expressed total ignorance about the matter.

She was also cross-examined by the learned APP but

nothing incriminating to the appellants came out in her

cross-examination.

7. The informant Rafiq who came in the witness box

as PW-14, however, supported the prosecution and stated

that on 2nd October, there was exchange of hot words

between the appellants and the deceased at about 10:00

AM, since the deceased was a police informer and used to

make complaints against various persons. He further

stated that at about 2:30-3:00 PM on that day, accused

persons caused injuries to the deceased, using danda

carried by accused Mahender and hockey carried by

accused Rehman. He lifted the injured, put him on a cot

and then took him to GTB Hospital on a rickshaw. Though

the accused chased him, he did not stop the rickshaw and

admitted the injured in hospital. He also identified the lathi

Ex.P-1 and the hockey Exhibit P-2 as the weapons used for

causing injuries to the deceased.

8. In his cross-examination Rafiq has admitted that

his wife Halima had married the appellant Rehman on 22nd

July, 1992. Halima came in the witness box as DW-1 and

stated that Rafiq who was her husband before she married

Rehman, had lodged a complaint against Rehman in which

she was forced to depose against him though he was later

acquitted. According to her, she was divorced by Rafiq and

she married Rehman on 22.07.1992. She also stated that

Mahender, co-accused of Rehman, was instrumental in

getting her married to Rehman. Rafiq was unhappy with

her second marriage and, therefore, had become inimical to

Rehman as well as to Mahender.

Exhibit D1 is the marriage agreement dated

22.07.1992 between DW-1 Halima and the appellant

Rehman, which was witnessed by the appellant Mahender.

Considering the fact that DW-1 Halima had married the

appellant Rehman, the relations between the appellant

Rehman and PW-14 Rafiq could not have remained cordial

and Rafiq was likely to harbour a grudge against Rehman

for marrying Halima. In fact, the strain in relations between

the appellant Rehman and PW-14 Rafiq is also evident from

the fact that a criminal case was instituted by Rafiq against

Rehman, which ultimately had resulted in his acquittal.

Rafiq, therefore, had a strong motive to depose against

Rehman and considering the enmity and ill-will between

them, given an opportunity he could also have implicated

in a false case. Since the appellant Mahender was

instrumental in getting Halima married to Rehman and had

also witnessed the marriage agreement between them, Rafiq

was likely to have become inimical to him as well for aiding

Rehman in marrying his wife Halima. It is, therefore,

difficult to dispute that Rafiq was an 'interested witness'

against the appellants.

9. As observed by the Supreme Court in Ashok

Kumar Chaudhary vs. State of Bihar: 2008 CriLJ 3030,

the term "interested" postulates that the person concerned

has some direct or indirect interest in seeing that the

accused is somehow or the other convicted either because

he had some animus with the accused or for some other

oblique motive. As observed by the Supreme Court in Dalip

Singh vs. State of Bihar 1954 SCR 145 a witness who is

otherwise considered to be independent becomes tainted if

he has an enmity against the accused to wish to implicate

him falsely.

10. The settled proposition of law therefore is that an

interested witness is not necessarily an unreliable witness

and partisanship by itself not a valid ground for outrightly

discarding him or rejecting his testimony at the very

threshold. It is also not an invariable rule of law that

interested evidence can never form the basis of conviction,

unless corroborated in material particulars, by independent

evidence. What is, however, necessary is to subject the

testimony of an interested witness to a careful scrutiny and

analyse it with caution, considering the strained relations

and animus between the parties. If on such scrutiny the

testimony of an interested witness is found to be

intrinsically reliable or inherently probable, it is permissible,

in the facts and circumstances of a case, to base the

conviction on the testimony of such a witness. The court

needs to ascertain whether the version of the incident given

by the witness is consistent with other evidence on record,

natural course of human conduct, surrounding

circumstances and inherent probabilities of the case and is

such which a prudent person would reasonably expect. If

on such careful scrutiny, the evidence of the witness is

found to be free from flaw and suspicion, it is open to the

court to base conviction on it. If, however, the testimony of

such a witness, on a careful scrutiny by the court, keeping

the previous animus between the parties in mind, appears

to be suspect, improbable or against natural course of

human conduct, it will not be safe to base the conviction on

the testimony of such a witness unless corroboration of his

testimony from independent sources is available on record.

11. In Masalti vs. State of U.P. AIR 1965 SC 202, the

Supreme Court observed that the evidence of an interested

or partisan witness is to be weighed very carefully by the

court though mechanical rejection of his testimony on the

ground of partisanship alone would lead to failure of justice.

In State of Rajasthan vs.Chandu and ors. JT 2002 (1) SC

427, it was noticed that there was severe enmity between

the complainant group and the accused group and the

relations between them were fiercely inimical. The

Supreme Court, therefore, held that it was prudent to look

for corroboration of the eye witnesses of material

particulars. Considering the discrepancies in their

testimony and absence of independent evidence, the appeal

filed by the State against the acquittal of the accused

persons was rejected.

12. In State of Punjab vs. Harbans Singh and

another (2003) 11 SCC 203, it was found that two

witnesses PW-4 and PW-11 belonged to different political

factions and, therefore, were not on friendly terms with the

accused. Considering them as partisan witnesses, the

Supreme Court noticed various discrepancies in their

evidence and since no independent witnesses were

examined, the appeal filed by the State against acquittal of

the accused persons was dismissed.

In Mohinder Singh and another vs. State of

Punjab and others (2004) 12 SCC 311, there was attack on

the complainant party by the accused about two years

before the incident of murder alleged to have been

committed by them. PW-4 and PW-5 were eye witnesses of

the incident of murder. It was found that there was enmity

between the families of the accused and the family of

witnesses who also belonged to the family of the deceased.

No independent witness was examined and there were

contradictions with respect to the time of incident. The

Supreme Court, therefore, did not find it safe to place

reliance on the testimony of PW-5 without any independent

corroboration which was lacking in the case. The testimony

of PW 4 who was an accused in the criminal case lodged

against him by one of the accused persons was also held to

be an interested witness and considering his conduct and

other discrepancies noted in his deposition, his testimony

was also rejected for want of independent corroboration.

13. Considering that Rafiq had earlier instituted

criminal proceedings against the appellant Rehman and

thereafter his wife Halima had married him with the aid and

assistance from the appellant Mahender, it would be

reasonable to infer that he would have liked to settle scores

with them in one way or the other.

14. We now proceed to analyse the testimony of PW-14

Rafiq keeping in mind that fact that he was inimical to the

appellants and harbored a grudge against them at the time

the incident resulting in murder of the deceased took place.

Rafiq has admitted in his cross-examined that both the

appellants were known to him for the last about 20 years. A

perusal of the MLC of the deceased would show that though

the deceased was brought to the hospital by Rafiq he did not

give the name of either of the appellants to the doctor and

claimed that the deceased by beaten by a 'group of people'.

This is not the case of Rafiq that though the names of the

assailants were given by him to the doctor, there was failure

on his part to note them in the MLC. Rafiq has expressly

admitted in his cross-examination that he did not tell the

doctor that the accused persons had inflicted injuries on the

deceased. He claimed that he had no occasion to tell the

same to the doctor. This part of his statement is obviously

false since he told the doctor that the deceased was beaten

by a group of persons. Had he actually witnessed the

incident he could not have omitted the names of the

assailants to the doctor, particularly, when they were known

to him for the last many years and he was also inimical to

them. The failure of the witness to name them to the

doctor indicates a strong possibility of his having reached

the spot after the incident had already taken place. This is

more likely when we consider that fact that according to

Rafiq he was residing in B Block whereas the incident took

place in D Block. According to Rafiq, about 10-15 persons

were already present on the spot when he reached there.

He claimed that no one tried to rescue the deceased. The

reason given is that the accused persons were armed with

lathi and hockey. It is rather unlikely that at a public place

and in day time a number of persons will just keep watch

when a person is being subjected to lathi and hockey blows

and will not even make an attempt to save him. This is not

the case of the prosecution that either of the appellants was

armed with a deadly weapon such as a revolver/pistol or a

knife. Use of lathi and hockey, in our view, was not likely to

deter the large number of persons who were present on the

spot from making even an effort to save the deceased.

15. According to Rafiq, his clothes had got stained with

blood when he lifted the deceased for putting him in

rickshaw. His cloths, however, have not been seized by the

Investigating Officer and the IO does not claim that he had

seen the witness in bloodstain clothes when he met him in

hospital. Had the clothes of this witness got stained with

blood, as claimed by him, that could not have escaped the

attention of the IO and the cloths would in that case have

been seized by him.

16. According to Rafiq blood of the deceased had come

on the cushion of the rickshaw. No blood stains were,

however, seized by the police from any rickshaw. In fact no

rickshaw at all was seized by the IO despite the informant

having told the police that the deceased was brought by him

to the hospital in a rickshaw.

17. According to PW-14 Rafiq he himself had pulled

the rickshaw in which he took the deceased to hospital after

he had lifted him and put him in rickshaw. This witness

does not claim to be a rickshaw puller. We fail to appreciate

why he would have pulled the rickshaw of someone else, all

the way to the hospital. In normal course of events, in such

a case, the rickshaw would have been pulled by the

rickshaw-puller and the witness would have occupied the

rear seat along with the injured. Therefore, this is yet

another circumstance which creates a serious doubt on the

truthfulness of the version given by the witness.

18. The case of the prosecution is that Rafiq was

present in his house when he hearing the noise, reached the

place of incident in Block D. As noted earlier by us, the

witness was residing in Block B. It must have taken

sometime to him to reach the spot from his residence. It is

difficult to accept that the incident of beating lasted so long

so as to give enough time to this witness to reach the spot

from his house and then also witness the actual beating of

the deceased. There is reasonable possibility of the witness

having reached the spot after the incident was already over

and then having taken the injured to the hospital.

19. Since PW-14 Rafiq is a partisan witness neither of

the other eye witnesses has supported the prosecution even

partially, considering the unnatural conduct of the

witnesses, coupled with the discrepancies found in his

testimony and improbability of the version given by him, it

will not be safe to convict the appellants solely upon his

testimony.

20. This is not the case of the prosecution that there

was any dispute between the deceased on one hand and

either of the appellants on the other hand. It has come in

evidence that the deceased used to make complaint to the

police against others. According to PW-14 complaints were

made by the deceased to the police against Shabir,

Chairman and Raj Kumar. There is no allegation of the

deceased having made complaint against either of the

appellants. Therefore, they had absolutely no motive to

commit murder of the deceased. Though it has come in the

deposition of PW-14 that was exchange of hot words

between the appellants and the deceased at about 10:00 AM

on that day, there is no report with regard to that incident.

No independent witness of the alleged exchange of hot

words has been produced by the prosecution. As noted

earlier, Rafiq had enmity against the appellants, one of them

having married his wife with the aid and assistance of the

other and a criminal case also having been instituted by

him against the appellant Rehman, which had resulted in

his acquittal. We feel that in the facts and circumstances of

the case, there is a rather strong possibility of PW-14 having

reached the spot after the incident was already over and

then having taken the deceased to the hospital. This

hypothesis also explains his not giving the name of the

assailants to the doctor, his clothes not having been seized

and other discrepancies found on his deposition.

CIRCUMSTANTIAL EVIDENCE

21. As regards the alleged recovery of a hockey at the

instance of the appellant Rehman from the roof of House

No. B-649, New Seema Puri, we notice that C-649, New

Seema Puri was the address of the informant Rafiq as is

evident from the FIR lodged by him. The T-Shirt when

examined in the laboratory was found stained with human

blood of AB group, which was also the blood group of the

deceased. Hockey stick was also found stained with human

blood of the same group. We notice that there is no

evidence of any grappling between the deceased and the

appellant Rehman. The case of the prosecution is that a

lathi and a hockey stick were used by the appellants for

causing injuries to the deceased. It is rather unlikely that

the T-Shirt of the assailant would get stained with blood

when he is causing injuries using a hockey for the purpose

and he does not come into contact with the injured person.

Be that as it may, the alleged recoveries of a blood

stained hockey stick and a blood stained T-Shirt alone are

not sufficient to prove the guilt attributed to the appellant

Rehman if the testimony of PW-14 Rafiq is excluded from

the consideration.

22. For the reasons given in the preceding paragraphs,

both the appellants are given benefit of doubt, their appeals

are allowed and they are hereby acquitted. Their Bail Bonds

stand discharged.

(V.K. JAIN) JUDGE

(BADAR DURREZ AHMED) JUDGE OCTOBER 08, 2010 RS/Ag