Jawahar Lal vs State
2011 Latest Caselaw 5272 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment delivered on 01.11.2011

+      CRL.A. 338/1997

JAWAHAR LAL                                                ...       Appellant

                                     - versus -

STATE                                                      ...       Respondent

Advocates who appeared in this case:

For the Appellant            : Mr Prashant Mendiratta with Mr Bharat Gupta, Mr Varun Tyagi
                               and Mr Rahul Mittal
For the Respondent           : Ms Richa Kapur

CORAM:
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE MANMOHAN SINGH

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

BADAR DURREZ AHMED, J

1. This appeal is directed against the judgment dated 21.07.1997 delivered by the Additional Sessions Judge, Delhi in Sessions Case No. 19/1996, which arose out of FIR No. 171/1992 of Police Station Darya Ganj, Delhi under Section 302 of the Indian Penal Code, 1860. By virtue of the impugned judgment, the appellant Jawahar Lal has been convicted for the offence punishable under Section 302 IPC for having committed the murder of Mahinder Gupta. The appeal is also directed against the order on sentence dated 23.07.1997 passed by the Additional Sessions Judge, Delhi whereby the appellant Jawahar Lal was sentenced to imprisonment for life for having

committed the murder of Mahinder Gupta. The benefit of Section 428 of the Code of Criminal Procedure, 1973 was given to the appellant.

2. The prosecution version is that on 05.05.1992, at about 9:30 pm, Mahinder Gupta was driving his two wheeler scooter, on which he had a pillion rider. He was coming from the direction of Pataudi House and was at Koocha Chelan, near police booth Darya Ganj, Delhi. His scooter was being followed by another two wheeler scooter, which was allegedly driven by the appellant Jawahar Lal. According to the prosecution, Jawahar Lal's scooter hit the scooter being driven by Mahinder Gupta from behind and as a result of this collision both the scooters fell on the road. It is then that the appellant, all of a sudden, allegedly took out an ice-pick from the right pocket of his pants and shouted at Mahinder Gupta. It is alleged that the appellant Jawahar Lal uttered the following words:-

"Mahinder tu aaj bach nahi sakta. Tune meri behan Sneh ki life kharab ki hai. Aaj mai tera kaam tamam kar deta hun.

(Mahinder, you will not survive today. You have ruined my sister Sneha's life.

I shall finish you today.)

On saying this, the appellant Jawahar Lal is alleged to have assaulted Mahinder Gupta with the ice-pick twice on his chest, which resulted in Mahinder Gupta falling on the ground. Thereafter, the appellant Jawahar Lal allegedly again assaulted Mahinder Gupta on his right thigh, which resulted in the steel portion of the ice-pick getting stuck in the body of Mahinder Gupta and the wooden handle coming loose and remaining in the hand of Jawahar Lal.

3. It is further alleged that two police officials, namely, PW5 Constable Suresh and PW6 Head Constable Harbans Lal had allegedly seen the occurrence from a nearby police picket and that the appellant Jawahar Lal was caught at the spot with the

wooden handle of the ice-pick in his hand. As per the prosecution, PW6 Head Constable Harbans Lal informed the control room through wireless and the PCR van arrived at the spot and removed the injured Mahinder Gupta to hospital, where he was declared as having been brought dead. The Station House Officer, on coming to know of the incident, arrived at the spot where, he was informed that the injured had already been rushed to hospital. Consequently, the said Station House Officer went to hospital. He did not find any eye witness present in the hospital and thereafter, he returned to the spot. There, he recorded the statement of PW6 Head Constable Harbans Lal and during the course of recording of the said statement, it is alleged that the pillion rider of the scooter driven by Mahinder Gupta also arrived. The name of the pillion rider was Rakesh Kumar (PW1). It is alleged that a rough sketch was prepared at the instance of PW1 Rakesh Kumar in the presence of PW6 Harbans Lal. The ruqqa had been sent and the FIR was registered. The scooters were taken into possession and the appellant Jawahar Lal was arrested. The wooden handle of the ice- pick was also taken into possession. The scene of the crime was photographed and the dead body of Mahinder Gupta was sent for post mortem examination. Thereafter, the case property was sent to the Central Forensic Science Laboratory. The charge-sheet was filed against the accused.

4. Thereafter, by an order dated 02.09.1992, the learned Additional Sessions Judge, Delhi framed the following charge against the appellant Jawahar Lal:-

"That on 05.05.1992 at about 9:35 pm at Koocha Chelan, near police booth, Darya Ganj, Delhi near transformer, you intentionally committed murder of Mahinder Gupta by inflicting injuries with 'Ice-breaking sua' by stabbing and thus committed an offence punishable under Section 302 IPC."

The appellant Jawahar Lal pleaded not guilty and claimed trial. Thereupon, the prosecution, in order to prove its case, examined as many as 20 witnesses. The

statement of the appellant was also recorded under Section 313 Cr. P.C. By way of defence evidence, the appellant examined one witness DW1 Edger. After considering the arguments advanced by the prosecution and the defence and the evidence on record, the learned Additional Sessions Judge, Delhi, pronounced the impugned judgment whereby the appellant Jawahar Lal was convicted for having committed the murder of Mahinder Gupta and was punished with imprisonment for life.

5. The learned counsel for the appellant Jawahar Lal submitted that the impugned judgment and/ or order on sentence were liable to be set aside because the prosecution had failed to prove its case beyond reasonable doubt. It was, first of all, contended by the learned counsel for the appellant that the prosecution has not been able to establish the place of occurrence. It was submitted that no blood stains were lifted from the alleged spot and no public witnesses were examined although they were present. Secondly, it was contended by the learned counsel for the appellant that the so-called eye witnesses PW5 Constable Suresh and PW6 Head Constable Harbans Lal were not eye witnesses at all. It was submitted that their testimonies were riddled with contradictions and inconsistencies. He also submitted that neither PW5 Constable Suresh nor PW6 Head Constable Harbans Lal are signatories to any of the documents, such as, the personal search memo, arrest memo and seizure memos prepared at the spot. This makes their presence extremely doubtful. He further submitted that the testimonies of PW5 Constable Suresh and PW6 Head Constable Harbans Lal are at complete variance with the medical evidence with regard to the injuries found on the body of Mahinder Gupta. It was submitted that their conduct was also extremely unnatural in the manner they allegedly reacted if it was assumed that they had seen the incident. The testimonies of PW5 and PW6 are also contradicted by PW16 Head Constable Mahinder Singh.

6. Thirdly, it was contended by the learned counsel for the appellant that there were too many gaps in the prosecution case. The learned counsel for the appellant submitted that no chance prints were lifted from the wooden handle or the scooters etc. The blood found on the ice-pick was said to be of human origin, though the blood group could not be ascertained. No blood sample of the deceased Mahinder Gupta was taken. The photographer PW10 Head Constable Raghubir Singh did not take photographs of any blood stains on the spot. Fourthly, it was contended that when, according to the prosecution, the name of the deceased (Mahinder) was also known, as per the testimonies of PW5 and PW6, then how is it that the name in the MLC in respect of Mahinder Gupta was shown as "unknown"? Fifthly, the learned counsel for the appellant submitted that the prosecution has not been able to prove or establish any motive behind the alleged crime. It was contended that when the ocular testimony is in serious doubt, motive becomes an important factor. Since the prosecution has not been able to establish any motive behind the crime, the case against the appellant becomes extremely doubtful and the benefit of which must be given to him. It was, therefore, contended that the impugned judgment and order on sentence be set aside and the appellant be acquitted.

7. Ms Richa Kapur appearing on behalf of the State fully supported the impugned judgment and order on sentence. She submitted, first of all, that the present case was not one of false implication as was attempted to be made out by the learned counsel for the appellant. In this regard, she submitted that there was no time available with the prosecution for cooking up a case of false implication. She submitted that the time of incident was 9:35 pm and at 10 pm, the injured Mahinder Gupta had already been taken to Lok Nayak Jai Prakash Narayan Hospital, as is evident from the MLC Exhibit PW11/A. At 11:30 pm, the ruqqa Exhibit PW6/B was despatched. At 11:40 pm, recording of the FIR began, which ended at 11:55 pm. This is evident from Exhibit PW13/DC. She submitted that action was taken with promptness; there was no delay

and as such, there was no time available for deliberation and for cooking up a false case.

8. Secondly, she submitted that the appellant Jawahar Lal was present at the spot and he was apprehended at the spot. Even his scooter bearing registration No. DEI 2744 was lying at the spot, behind the scooter of the deceased Mahinder Gupta bearing registration No. HYS 6994. Thirdly, she submitted that PW1 Rakesh Kumar is not a planted witness. She submitted that although he turned hostile with regard to the actual incident, he, all the same, proved the place of occurrence. He was also present when the police came and took the deceased to the hospital. His signatures are available on Exhibit PW1/A (seizure memo of the scooter bearing registration No. DEI 2744), Exhibit PW1/B (seizure memo of the scooter bearing registration No. HYS 6994), Exhibit PW1/C (personal search memo of the appellant Jawahar Lal) and Exhibit PW1/D (seizure memo in respect of the handle of the ice-pick). She further submitted that PW1 Rakesh Kumar remained at the spot till 9:30 pm, whereupon, he left the spot and returned at 11 pm. She submitted that although PW1 Rakesh Kumar has not supported the prosecution case with regard to the actual incident, his testimony regarding the place of occurrence as also his presence can be looked into. Fourthly, she submitted that insofar as the wooden handle of the ice-pick is concerned, the same was seized vide Exhibit PW1/D. The seizure memo was prepared by PW20 ACP S. C. Sharma and the same was witnessed by PW1 Rakesh Kumar and PW19 Mohan Lal. Thus, according to her, it cannot be disputed that the wooden handle of the ice-pick was recovered in the manner alleged by the prosecution. Fifthly, she submitted that the post mortem examination report Exhibit PW7/A clearly disclosed that the time since death was between 14-15 hours, which implied that the death occurred between 9 pm and 10 pm on 05.05.1992. This is so because the post mortem examination was conducted on 06.05.1992 at 12 noon. She further submitted that the mismatch of injuries reported in the post mortem

examination and the ocular evidence of PW5 Constable Suresh and PW6 Head Constable Harbans Lal are of minor consequence. She submitted that it is only injury No. 9 and injury No. 11, which have not been described by PW5 Constable Suresh and PW6 Head Constable Harbans Lal. The main injuries, namely, injury No. 12 (punctured stab injury on left chest), injury No.13 (punctured stab injury on lower left chest) and injury No. 5 on the right thigh are the main injuries and they clearly corroborate the ocular evidence given by PW5 Constable Suresh and PW6 Head Constable Harbans Lal.

9. Sixthly, Ms Richa Kapur submitted that PW5 Constable Suresh and PW6 Head Constable Harbans Lal are credible eye witnesses. She submitted that the hypothesis propounded by the defence that Mahinder Gupta had been killed elsewhere and that his body was thrown near the police picket, is clearly improbable. Koocha Chelan is a crowded area and it would be extremely unlikely that the killer would have brought the body through a crowded area in order to throw the same near a police picket. She further submitted that the alleged inconsistencies in the prosecution evidence are not material and are only attributable to differences in the powers of observation as also to the lapse of time between the occurrence and the time of deposition.

10. Lastly, she submitted with regard to the plea raised by the learned counsel for the appellant that there was absence of blood from the scene of the crime, that the lack of quality of investigation ought not to be to the benefit of the accused if there is other compelling evidence to prove his guilt. In this regard, she also submitted that PW16 Head Constable Mahinder Singh's testimony is not of such a character as would entail the throwing out of the testimonies of PW5 Constable Suresh and PW6 Head Constable Harbans Lal. Consequently, she submitted that the prosecution has been able to establish its case against the appellant and that no interference with the impugned judgment and order on sentence is warranted.

11. From the above, it is apparent that the entire case of the prosecution hinges upon the testimonies of PW5 Constable Suresh and PW6 Head Constable Harbans Lal, who claimed to be eye witnesses of the incident. Their testimonies are all the more important because PW1 Rakesh Kumar, who was a friend of the deceased Mahinder Gupta and was the pillion rider of the scooter which was being driven by Mahinder Gupta, has not supported the prosecution version with regard to the alleged incident. The evidence of PW7 Dr George Paul (the doctor who conducted the post mortem examination on the dead body of Mahinder Gupta) and PW17 Dr P. C. Dixit, who endorsed the post mortem examination report by virtue of his endorsement Exhibit PW17/A, is also of material importance and so is the testimony of PW16 HC Mahinder Singh.

12. Let us first consider the testimony of PW7 Dr George Paul. He stated that he conducted the post mortem on the body of Mahinder Gupta at about 12 noon on 06.05.1992. According to him, the time since death was about 14-15 hours. This would, as already pointed out above, clearly indicate that the death took place between 9 pm and 10 pm on 05.05.1992. This part of the testimony corroborates the prosecution version that Mahinder Gupta was murdered at about 9:35 pm on 05.05.1992. PW7 Dr George Paul further stated that on external examination, the body of Mahinder Gupta showed blood stains on the left arm and armpit and left outer front of chest along with blood stains on the nostrils. He noticed the following external injuries:-

(i) Transversely oval abrasion 3.5cm x 1.6 cm present in the middle of forehead in the upper front part, just to left of midline;

(ii) Multiple abrasion including three linear scratch abrasions in 5 x 3 cm on the left side of bridge, ridge and left ala of nose with the scratch abrasion extending to adjacent left cheek region;

(iii) Oblique abrasion 1.3 x 0.4 cm on the right side of middle of under surface of chin region;

(iv) Transverse superficial lacerated would of 1.4 x 0.3 cm on the lower front part of right forearm just above the wrist region;

(v) Lacerated punctured would of 0.5 x 0.5 cm on the lower outer part of left side of hip just 4.5 cm below the upper end of right hip prominence i.e. thigh bone prominence in the hip region with steel tubular rod like object penetrating through embedded in it, up to the right thigh bone showing total protruding length of 8 cm with its terminal 3.5 cm showing somewhat non-plated rusted like appearance with its end having the sheared-off appearance. The wound was 86 cm above right heel- stab wound;

       (vi)       Abrasion 0.5 x 0.3 cm on the upper front of right knee;

       (vii)      Multiple small abrasion in 1.5 x 0.3 cm on the back of knuckles of
                  left index finger;

(viii) Oblique abrasion 2.8 x 0.4 cm on the lower outer part of left arm;

(ix) Punctured lacerated wound 0.5 x 0.5 cm present in the middle outer part of left arm with its lower end being 14.5 cm above the tip of left olecranon bone prominence, going left to right upwards and slightly backwards in the back of left of fore-arm muscles and tissues to exist through injury No.11;

(x) Abrasion 0.5 x 0.2 cm on the middle outer back part of left arm 1 cm outer to injury No.9;

(xi) Punctured lacerated circular exit wound 0.5 x 0.5 cm on the upper inner back part of left arm, communicating within through the wound track to injury No.9, located 11 cm below the roof of axilla and 18 cm above the olecranon bone prominence with plenty of blood defusion present in the around in the tissues;

(xii) Lacerated punctured entry stab wound of 0.5 x 0.5 cm present in the upper inner front of left side chest 4.5 cm to the left of mid-line and 5 cm above the level of left nipple, the lower margin of the

wound being 129 cm above left heel going into the chest cavity deep; and

(xiii) Lacerated punctured entry stab wound of 0.5 x 0.5 cm present in the lower part of middle outer aspect of left side of chest 11 cm to the left of midline and 4.5 cm below the level of left nipple going back ward and inward into chest and abdominal cavity deep. The lower margin of the wound being 117 cm above left heel."

13. PW7 also stated that on internal examination, he found that the steel rod was embedded in the right thigh of the deceased. The said steel rod, that is, the pick was removed and was preserved, with the report on it, which was given separately. PW7 Dr George Paul also referred to the various other internal injuries, which are set out in detail in the post mortem report Exhibit PW7/A. In his opinion, the cause of death was due to stab injury to the aorta and heart, vide injury Nos. 12 and 13 respectively. Injury Nos. 9 and 11 were entry and exit wounds, respectively, in the left arm and were caused by some pointed piercing thin long object and correspond nearly exactly with the steel long pointed thin but strong rod buried to the depth of 4.5 cm on the upper end of right thigh bone. Injury Nos. 1, 2, 3, 6, 7 and 8, in the opinion of PW7 Dr George Paul, were due to impact with some blunt object. According to PW7 Dr George Paul, injury Nos. 12 and 13, individually and collectively, were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and fresh. PW7 Dr George Paul also examined the clothes worn by the deceased at the time of admission and after examining them, he made his report Exhibit PW7/B and was of the opinion that the tears in the said clothes correspond to the injury Nos. 9-11, 12 and 13 on the body of the deceased. He also gave the opinion that injury Nos. 4, 5, 9, 10, 11, 12 and 13 present on the body of the deceased and the tears on the clothes would have been caused by the remains of the weapon recovered from injury No. 5 i.e, Exhibit P-4, the steel rod recovered from the thigh of the deceased.

14. In the course of cross-examination, PW7 Dr George Paul clarified that the chances that a danda or a lathi had caused injury Nos. 2, 6 and 7 were very remote. He also stated that the possibility of the injuries being caused by a stone could not be absolutely ruled out. Insofar as the injury Nos. 1, 2 and 3 are concerned, there was a very remote possibility that the same could have been caused by a danda or a lathi, though it was not impossible. PW7 Dr George Paul further stated that the pointed steel rod which he took out from the body of the deceased could have caused injury No. 2. He further stated that the possibility of injury Nos. 1-3, 6, 7 and 8 having been sustained during the course of a scuffle was 'very much there'. The said witness also stated, in connection with injury No. 13, that the death must not have been instantaneous, that is, within a few minutes but insofar as injury No. 12 was concerned, inasmuch as it was communicating through the right main bronchus and respiratory tract, it could have resulted in quick haemorrhage and death. He finally stated that it was true that the possibility of the person having bled a lot was there, but he could not say whether it was so for a long time.

15. PW17 Dr P. C. Dixit, Professor and Head of Department, Maulana Azad Medical College, New Delhi, stated in his examination in chief that in this case Dr George Paul, Associate Professor, conducted the post mortem on the body of the deceased Mahinder Gupta and that he submitted his report to him (Dr P. C. Dixit), which was endorsed by him (Dr P.C. Dixit) for further necessary action by virtue of his endorsement Exhibit PW17/A. When this witness was cross-examined by the defence counsel, he stated that the injuries indicated at serial No. 2 could be the result of scratching by nails and that these injuries are suggestive of a scuffle. He also stated that it was correct that injury No. 1 could have been caused by a brick, stone, danda or any blunt object and that the said injury was not possible with the pointed end of a 'sua'. Similarly, he was of the opinion that the injury No. 2 could not have been caused by a 'sua'. He stated that injury No. 6, in the case of a person wearing trousers, could be the result of a fall or by having been hit with a blunt object like a

'danda'. He also admitted that if injury Nos. 12 and 13 were caused first, the fall of the victim and his death would be very rapid and that it may happen in minutes or in seconds. He also admitted that looking to the number and nature and seat of the injuries, the possibility of the injuries having been caused by more than one assailant and by more than one weapon cannot be ruled out. With regard to injury No. 5, the injury on the right thigh of the deceased Mahinder Gupta, PW17 Dr P. C. Dixit, stated that the probability was that the said injury must have been inflicted while the victim was lying on the ground. He also admitted that as a result of injury Nos. 12 and 13, there was bound to be profuse bleeding and drenching of the clothes with blood. It was also admitted by this witness that in the case of injury Nos. 12 and 13 the victim would start writhing and would soon collapse because of excessive bleeding and shock. He further stated that in the case of a person receiving injuries like injury Nos. 12 and 13, the injured would, in all probability, die within a couple of minutes, may be five minutes or seven minutes. PW17 Dr P. C. Dixit volunteered to state that the survival of a victim receiving such injuries beyond 5-7 minutes was very remote.

16. From the above evidence, it is apparent that injury Nos. 12 and 13 were the fatal injuries. It is also clear that those injuries could have been caused by Exhibit P- 4, the steel rod found embedded in the right thigh of the deceased Mahinder Gupta. There is, therefore, no doubt that injury Nos. 5, 12 and 13 were caused by Exhibit P-4. However, from the evidence of the said doctors, there also appears to be a possibility that the other injuries could have been caused in the course of a scuffle. More than that, some of the other injuries could have been caused by blunt objects, such as a danda, brick or stone. Therefore, there is a possibility that more than one weapon was used for assaulting Mahinder Gupta. There is also a possibility that there was more than one assailant. This is what appears on the basis of the medical evidence on record.

17. Let us now examine the testimonies of PW5 Constable Suresh and PW6 Head Constable Harbans Lal to see as to what extend their testimonies coincide with the medical evidence on record. PW5 Constable Suresh Chand, in his examination-in- chief stated that on 05.05.1992 he was on duty on his motorcycle from 8 pm to 8 am and that at about 9:35 pm, while patrolling, he reaching Koocha Chelan and was present at the police picket near the electric transformer. He stated that PW6 Head Constable Harbans Lal was also present in the picket on duty. At that time, he saw two scooters coming from the side of Pataudi House. There were two passengers in the scooter coming ahead and one rider on the scooter coming behind. The second scooter hit the first scooter and the driver of the second scooter took out an ice-pick from right pocket of his trousers and stated that he would not spare Mahinder Gupta and stabbed him 2-3 times on the left side of the chest of the deceased. Thereafter, another blow was given on the right thigh of the injured and after that the injured fell down. He further stated that he along with Head Constable Harbans Lal overpowered the assailant, whose name, he later on came to know was Jawahar Lal. The wooden handle of the ice-pick was seized by Head Constable Harbans Lal from the right hand of the appellant.

18. In the course of cross-examination, PW5 Suresh Chand stated that Mahinder did not fall after the third blow. The third blow was given on his right thigh while he was standing and thereafter he fell down. When he was confronted with his statement made under Section 161 Cr. P.C about the number of blows, PW5 Suresh Chand stated that he was not sure at the time of his statement under Section 161 Cr. P.C about the number of blows and that it was correct that he had come to know that there were two injuries on the chest of Mahinder Singh and, therefore, he had made the statement in Court that he was given two blows on the chest and not three.

19. From the testimony of PW5 Constable Suresh Chand, it appears that he has contradicted himself with regard to whether Mahinder Gupta received the third blow

on his right thigh while he was standing or after he had fallen down. In his examination-in-chief, as also at one place in his cross-examination, he stated that Mahinder Gupta fell down after he had received the third blow, that is, injury No. 5 on his right thigh. However, at another place in cross-examination, PW5 Suresh Chand stated that Mahinder fell on the ground after receipt of the second blow and the third blow was given when he had already fallen on the ground.

20. Apart from this, it is of great significance that this witness has stated that he was not sure about the number of blows at the time he gave his statement under Section 161 Cr. P.C and that he only came to know about the number of blows subsequently and that is why he made the statement that Mahinder was given two blows on the chest and not three. It is, in fact, intriguing that the witness stated that when he made his statement under Section 161 Cr.P.C, which is very proximate in time to the alleged incident, he was not sure about the number of blows but subsequently he became sure upon receiving information that Mahinder Gupta had received two blows on his chest. It is obvious that PW5 Suresh Chand had not seen the incident. Otherwise, he would have clearly and categorically stated the number of blows given by the appellant. Furthermore, PW5 Suresh Chand has not indicated or stated anything about the ten other injuries found on the body of Mahinder Gupta. The medical evidence, if we recall, indicated that there was a possibility of more than one weapon being used as also a possibility of there being more than one assailant and a scuffle having taken place. But, PW5 Suresh Chand does not mention anything about any scuffle having taken place or Mahinder Gupta having received any other injuries other than injury Nos. 12, 13 and injury No. 5. This also casts serious doubts as to whether PW5 Suresh Chand witnessed the incident at all.

21. PW6 Head Constable Harbans Lal in his examination-in-chief stated that on 05.05.1992 he was on duty in Koocha Chelan at the police picket from 8 pm to 8 am. He stated that PW5 Constable Suresh Chand was with him at about 9:35 pm, when

two persons came on a two wheeler bearing registration No. HYS-6994 from the side of Pataudi House. When they reached near the electric transformer, a scooter bearing registration No. DEI-2744 driven by the appellant Jawahar Lal came from behind and hit the said scooter No. HYS-6994. Because of the collision, both the scooters fell on the ground and within no time, the appellant Jawahar Lal took out an ice-pick from his right pant pocket while saying - Mahinder tune meri behan ki life kharab ki hai, main tujhe nahin chhorunga- and stabbed Mahinder on the left side of his chest twice and Mahinder fell on the ground. Thereafter, the appellant Jawahar Lal again stabbed Mahinder with the said ice-pick on his right thigh. Thereafter, they immediately rushed to the spot, that is, PW6 Head Constable Harbans Lal and PW5 Constable Suresh Chand. He further stated that they apprehended the appellant Jawahar Lal and seized the ice-pick from the right hand of the appellant and the wooden handle Exhibit P-2 from his right hand. Like PW5, PW6 Head Constable Harbans Lal has only referred, in his examination-in-chief, to the three stab blows which correspond to the injury Nos. 12, 13 and 5. In the course of his cross-examination, however, PW6 Head Constable Harbans Lal also stated that the accused had given two blows on the left portion of the chest and one blow was given on the left side of buttock. This third injury does not, of course, correspond to the injury No. 5, which is on the upper right thigh of Mahinder Gupta. Even if we discount this as a minor discrepancy, the fact still remains that PW6 Head Constable Harbans Lal has not spoken of any of the other ten injuries which were found on the body of Mahinder Gupta in the course of his post mortem examination.

22. From the above discussion, it is apparent that the ocular testimonies of PW5 Constable Suresh Chand and PW6 Head Constable Harbans Lal are at variance with the medical evidence on record. According to the medical evidence, there were 13 injuries whereas these two witnesses have only spoken of three injuries. The other 10 injuries could have been caused in the course of a scuffle but these witnesses have not said anything about any scuffle having taken place. The medical evidence also

indicates that there was a possibility of more than one weapon having been used, but, these witnesses have not stated anything about any other weapon. It is for this reason that we feel that the conclusion arrived at by the learned Additional Sessions Judge that there is no discrepancy between the ocular evidence and the medical evidence, is no correct. The discrepancies have already been pointed out above. Apart from this, there is a contradiction between the testimonies of PW5 and PW6 and more importantly the contradiction which is inherent in the testimony of PW5 Constable Suresh Chand with regard to the number of blows on the chest and the manner in which the third blow was given.

23. We may recall that PW7 Dr. George Paul stated that on external examination of the dead body of Mahinder Gupta, he found blood stains in the left arm and armpit and left outer front of the chest along with blood stains on the nostrils. In his cross- examination, he had also admitted that in view of the injuries received there was every possibility of the person having bled a lot. Similarly, PW17 Dr. P.C. Dixt also stated in the course of his cross-examination that as a result of injury Nos. 12 and 13, there was bound to be profuse bleeding to the extent that the clothes would be drenched with blood. However, we find that PW5 Suresh Chand in his cross-examination revealed that he did not see any blood falling on the spot nor did he see blood coming out from the thigh or from the chest of the deceased. Similarly, PW6 Head Constable Harbans Lal stated that he did not notice any blood on any part of the body of Mahinder Gupta when Mahinder Gupta was lifted by the police in the van. He also stated that there was no blood seen by them at the place where the deceased had continued lying for 5-7 minutes. He also stated that the deceased was not writhing in pain but was unconscious. We may also point out that PW10 Head Constable Raghubir Singh, the photographer, revealed in his cross-examination that there were no blood stains at the spot and that nobody pointed out any blood stains on the ground to him for the purposes of taking photographs. PW20 ACP S. C. Sharma also revealed in his cross-examination that when he reached the spot for the first time and

inspected the same and he did not note any blood stains at the spot. On the other hand, PW16 Head Constable Mahinder Singh stated in his cross-examination that he had seen blood lying on the road at one spot, which was near the shop where the injured was lying on a bench, which is different from the spot indicated by PW5 and PW6. He also stated that there was blood lying on the bench wherefrom the injured was removed to the police van. He also stated that the clothes of the injured were stained with blood although it was not correct to say that the clothes were drenched in blood.

24. From the above, it is apparent that there is a variance between the testimonies of PW5 Constable Suresh Chand, PW6 Head Constable Harbans Lal, PW10 Head Constable Raghubir Singh and PW20 ACP S. C. Sharma on the one hand, as they did not noticed any blood or blood stains, and PW16 Mahinder Singh on the other, who noticed blood on the road as well as on the bench from where the injured Mahinder Gupta was allegedly removed as also blood stains on the clothes of the injured. However, we are here concerned about the credibility of PW5 Constable Suresh Chand and PW6 Head Constable Harbans Lal as eye witnesses. PW7 Dr George Paul and PW17 Dr P. C. Dixit have clearly stated that the injuries found on the body of Mahinder Gupta would result in a lot of bleeding. But, PW5 Constable Suresh Chand and PW6 Head Constable Harbans Lal have not noticed any blood or blood stains. Therefore, this is another serious contradiction between the alleged ocular testimonies and the medical evidence on record.

25. We now come to the question of unnatural and improbable behaviour and / or conduct of PW5 Constable Suresh Chand and PW6 Head Constable Harbans Lal, who are the alleged eye witnesses. We must remember that both PW5 Constable Suresh Chand and PW6 Head Constable Harbans Lal are police officers and not ordinary members of the public. When they see a crime being committed, it is their duty to make every attempt to prevent the same from being committed. In this backdrop, let

us examine as to what PW5 Constable Suresh Chand did when he saw the crime being committed. He stated that when the first blow was given by Jawahar Lal, he was at a distance of about 14-15 steps and he rushed towards them. But, even before he could reach, the second blow was given to the deceased Mahinder Gupta. He, however, stated that he did not shout at the assailant to desist him from attacking. He further reveals in cross-examination that when the second blow was given, he was about 7-8 paces away. Even then he did not shout at the assailant to desist. He further revealed that Mahinder Gupta fell on the ground after the receipt of the second blow and he was just about 1 or 2 steps away. But, even then, he did not shout at the assailant in order to stop him from continuing his attack. He did not try to seize the wooden handle from the assailant. He admitted that, in fact, he did nothing! He also did not recall as to whether Mahinder Gupta continued writhing in pain while lying on the ground.

26. What is even more intriguing is the fact that PW5 Constable Suresh Chand stated that after Mahinder Gupta had received the injuries, he did not lift him from the spot to any other convenient place. The injured Mahinder Gupta remained at the spot where he fell after the injury. He did not enquire about the name of the injured and even PW6 Head Constable Harbans Lal had not done so. He further revealed that during the 5-7 minutes that Mahinder Gupta was lying on the ground, neither he nor PW6 Head Constable Harbans Lal attended to the injured nor gave him any attention and that neither he nor PW6 Head Constable Harbans Lal even asked the name of the injured.

27. As regards PW6 Head Constable Harbans Lal, we find that he has also revealed in his cross-examination that he did not help Mahinder by giving him a glass of water or by helping Mahinder to sit. He further stated that similarly, PW5 Constable Suresh Chand also did not assist Mahinder in sitting up or by giving him a glass of water.

Interestingly, he stated that prior to the SHO arriving at the spot he had no conversation with the pillion rider of the scooter which was driven by the deceased Mahinder Gupta. He also did not have any talk with Mahinder although he was in his senses. He also did not even enquire his name nor did he ask the name of the accused. In fact, he had not even asked the pillion rider to stay at the spot. The pillion rider disappeared from the scene after the occurrence and he did not know where he went.

28. It might have been understandable that a lay person unacquainted with a criminal offence could have been stunned by a crime taking place in front of his eyes. But, PW5 Constable Suresh Chand and PW6 Head Constable Harbans Lal are police officers. They are required to act in a professional manner and they have been trained to respond to such situations. Consequently, it is apparent that their conduct was certainly unnatural and, therefore, there is serious doubt as to whether they were at all present at the spot when the alleged crime took place.

29. PW1 Rakesh Kumar, who was cited by the prosecution as an eye witness, has not supported the prosecution version with regard to the incident. In his examination- in-chief he stated that he had stated to the police that he had not seen the assailant or the occurrence and that he had only seen the deceased in a pool of blood lying at the spot. However, as we have already noticed above, no blood was found at the spot so PW1 Rakesh Kumar does not even support the prosecution with regard to the place of occurrence. PW1 Rakesh Kumar was allegedly a friend of the deceased Mahinder Gupta. If he was present at the time of the incident or at the spot, he would, in all likelihood, have stayed with Mahinder Gupta and gone with him to hospital. But, in his cross-examination by the learned counsel for the defence, PW1 Rakesh Kumar stated that he stayed at the spot up till 9:30 pm and then went to his house and returned at about 11 pm. He stated that he had gone to attend a marriage during the intervening period. It is very difficult for us to believe that a person, on seeing his

close friend being murdered in front of his eyes, would leave the spot, leave his friend and go to attend a marriage, as if nothing has happened. In any event, the testimony of PW1 Rakesh Kumar is of no help to the prosecution.

30. We have already mentioned that the prosecution has been unable to establish the motive behind the alleged crime. Even though relatives of the deceased Mahinder Gupta came to the witness box, none of them have uttered a single word concerning the motive on the part of Jawahar Lal, who allegedly committed the murder of Mahinder Gupta. The only indication of motive is in the testimony of PW6 Head Constable Harbans Lal, who stated that prior to Jawahar Lal assaulting Mahinder Gupta, he had uttered the words:-

"Mahinder tu aaj bach nahi sakta. Tune meri behan Sneh ki life kharab ki hai. Aaj mai tera kaam tamam kar deta hun.

But, the prosecution has not established the basis for such an utterance. We have already indicated our serious doubts with regard to the testimonies of PW5 Constable Suresh Chand and PW6 Head Constable Harbans Lal. It is true that in a case where there is ocular testimony, establishing a clear motive would not always be necessary. But, as pointed out by this Court in Parmesh Kumar v. State : Crl. A 52/1993 decided on 06.03.2009, where the ocular testimony is tainted or is not believable even partially, motive becomes a relevant factor. In the present case we find that PW5 Constable Suresh Chand and PW6 Head Constable Harbans Lal cannot be believed and, therefore, the question of motive would attain significance. Unfortunately, the prosecution has not been able to establish the motive in this case. We agree with the learned counsel for the appellant that there are too many gaps in the prosecution case. In any event, the entire case hinges upon the testimonies of PW5 Constable Suresh Chand and PW6 Head Constable Harbans Lal. Since we have grave doubt as to whether these persons actually witnessed the incident, the prosecution has not been able to prove its case beyond reasonable doubt.

31. As a consequence, the benefit of doubt would have to go to the appellant. The impugned judgment and order on sentence are set aside and the appellant, on being given the benefit of doubt, is acquitted of the charge against him in this case. The sentence of the appellant had been suspended during the pendency of this appeal and he was released on bail. Since the impugned judgment and order on sentence have been set aside, the personal bond given by the appellant at the time of his release on bail, stands cancelled and the surety stands discharged. The appeal is allowed.

BADAR DURREZ AHMED, J

MANMOHAN SINGH, J NOVEMBER 01, 2011 SR