Delhi High Court
Karamvir vs State on 17 August, 2012
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 15th May, 2012
DECIDED ON : 17th August, 2012
+ CRL.A.213/1998
KARAMVIR ....Appellant.
Through : Mr.Sidhartha Luthra, Sr.Advocate
with Mr.Neeraj Jain, Mr.Anurag
Ahluwalia and Mr.Vivek Sharma,
Advocates.
Versus
STATE ....Respondent.
Through: Mr.Sanjay Lao, APP for the State.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. The present appeal is directed against the judgment dated
30.04.1998 and order on sentence dated 13.05.1998 of learned Additional
Sessions Judge in Sessions Case No.26/1997 by which the appellant
Karamvir Singh was convicted for committing the offence punishable
under Section 302/34 IPC and sentenced to undergo imprisonment for life
with fine of `5,000/-.
2. The police machinery was set into motion on 04.07.1985
when Daily Diary (DD) No.21 (Ex.PW17/A) was recorded at police post
Madangir at 8:15 P.M. on getting information from an unknown
individual that an accident had taken place at Devli Road. The
investigation was assigned to Head Constable Hukam Singh who with
Constable Jai Kishan reached the spot. Meanwhile SI Ajit Singh with
Constable Paras Ram also went there. They came to know that the injured
Jage Ram had already been taken to AIIMS. He was declared brought
dead at AIIMS. Balraj (deceased's son), Hakim Singh (their driver) and
Kuldip Singh were present there. SI Ajit Singh recorded Balraj's
statement and he disclosed that on that day i.e.04.07.1985 about 8:15 P.M.
his father Jage Ram was raising construction in the house at Jawahar Park.
When he, Kuldip Singh were present near his car, Jage Ram went to
make payment to Harpal Singh for the building material purchased from
him. Soon thereafter, he heard Hakim's noise 'Maar diya'. On hearing
the noise and his father's cries, they saw that Kaptan Singh and his son
Karmvir Singh after alighting from their Maruti Car DIC-3289 were
stabbing him (Jage Ram) with knives. They rushed to the place of
occurrence. The assailants fled the spot in the car leaving his father in
injured condition. He with the help of other persons took the victim to
AIIMS where he was declared dead. The informant also attributed motive
to the assailants for committing the murder.
3. The Investigating Officer (IO) made an endorsement on the
statement (Ex.PW11/A) and sent the rukka through Head Constable
Hukam Singh for lodging the First Information Report (FIR). After return
to the spot, the Investigating Officer (IO) got the scene of incident
photographed. Wireless message was flashed to intercept vehicle No.IC-
3289 in which the assailants (Kaptan Singh and Karamvir Singh) had
escaped. The IO prepared a site plan at the spot, lifted blood, blood earth,
control earth, cover of dagger and ball point pen under cover of seizure
memos. Blood stained clothes of Balram and Hakim were seized.
4. Head Constable Radhey Lal with Constable Jeet Ram and
two Homeguard Constables on patrol duty during the night intervening
4/5-7-1989 at about 4:45 A.M. intercepted the Maruti Car DIC-3289
coming from the side of Devili. Dharamvir, Vijender and Bhurey were
there in that car. During the course of investigation, the body of the
deceased was sent for post-mortem examination. Dr.S.D.Sharma (PW-28)
conducted post-mortem examination of the body. The IO recorded the
statements of witnesses conversant with the facts. Since the informant
had named the accused, the police set out to apprehend them but in vain.
5. On 22.07.1987 Kaptan Singh was arrested when he
surrendered in the Court. The IO sent the Exhibits to Central Forensic
Science Laboratory (CFSL) for examination and subsequently collected
its report. PW-4 (SI Davinder Singh) prepared scaled site plan. Karamvir
Singh could not be arrested. After completing the investigation a charge-
sheet was filed against the accused Kaptan Singh in the Court.
6. The accused Karamvir was arrested in FIR No.182/1986
under Section 25 Arms Act by the Police of Special Staff, New Delhi on
19.03.1986. SI Brij Lal (PW-23) arrested him in this case and filed
supplementary charge-sheet. Both Karamvir and Kaptan were charged for
committing offence punishable under Section 302/34 IPC to which they
pleaded not guilty and claimed trial.
7. To prove the charges, the prosecution examined 34 witnesses
in all. Statements of the accused were recorded under Section 313 Cr.P.C.
to afford them an opportunity to explain the incriminating circumstances.
They pleaded false implication due to enmity. The accused examined
DW-1 (Const.Surendra Singh), DW-2(Shri Charan Ram) and DW-3 (Shri
Sudha Kant Dass) in their defence.
8. During the pendency of the trial the accused Kaptan Singh
expired and the proceedings against him were dropped as abated.
9. After appreciating the evidence and considering the rival
contentions of the parties, the Trial Court convicted the appellant for
committing the offence punishable under Section 302 IPC. Aggrieved by
the said order the appellant has preferred the appeal.
10. Learned counsel for the appellant challenged the findings of
the trial court by which he was held responsible for the murder and urged
that it did not appreciate the evidence in its true and proper perspective
and fell into error in placing reliance on the ocular testimony of PW-11
(Balraj Arya) who was closely related to the deceased and whose presence
at the spot was doubtful. The Trial Court, urged the counsel, failed to
observe his unnatural conduct at the time of incident making his presence
at the spot suspicious. He did not raise hue and cry on witnessing the
occurrence. Neither did he report the incident to the police nor did he
intervene to save his father. PW-31 (Kuldip Singh Ahuja) and PW-32
(Harpal Singh) testified that they with Som Nath and others had lifted
Jage Ram and taken him in the van to AIIMS. At that time Balraj was
not present there. The Trial Court ignored the version of independent
public witnesses without valid reasons. Counsel further contended that
there was completely dark due to failure of electricity in the area. PW-10
(Hakim) and PW-11 (Balraj Arya) were a long distance away and were
unable to identify the assailants. PW-11 did not disclose the name of the
assailants to the doctor who examined the deceased. Inordinate delay in
lodging the First Information Report remained unexplained. No
independent public witness present at the place of occurrence was
associated during the investigation. PW-31 (Kuldip Singh Ahuja) and
PW-32 (Harpal Singh) did not support the prosecution and turned hostile.
The Trial Court, urged the counsel, placed reliance on the testimony of
PW-10 (Hakim) who was an imposter and blackmailer. He visited jail to
strike a deal with the accused to depose the truth. He invited Ajit Singh to
the birthday party of his son. The counsel highlighted discrepancies,
contradictions and improvements in the testimonies of the witnesses and
contended that the investigation was unfair and defective. The IO did not
seize the van in which the deceased was taken to the hospital. No attempt
was made to get the dagger cover examined from the fingerprint expert.
The deceased Jage Ram raised construction at Raju Park New Delhi, an
altogether different colony at a distance away from Jawahar Park and
vouchers collected during investigation pertained to the said construction.
The IO did not depict the place of occurrence correctly in the site plans.
The position of the assailants and the witnesses at the time of occurrence
and the distance among them was not shown accurately in the site plans.
11. On the other hand, learned APP supported the impugned
judgment and urged that it did not call for any interference. The incident
was witnessed by PW-10 (Hakim), PW-11(Balraj Arya) and PW-31
(Kuldip Singh Ahuja). The occurrence happened suddenly and lasted for
a short duration. The witnesses had no time to react to save the victim.
They immediately carried the injured to AIIMS. The natural instinct of
the witnesses was to ensure medical assistance to the victim at the earliest.
In the MLC (Ex.PW-9/A) there is specific mention that the victim was
brought to AIIMS by his son Balraj. The blood-stained clothes of Balraj
and Hakim Singh having the deceased's blood group on it confirmed their
presence at the spot. Both PWs-10 and 11 proved their version and
despite unending cross-examination, it could not be shattered. Close
relationship is not a factor to discredit the testimony of a witness. Both
the assailants were named at the earliest opportunity in the FIR. Specific
roles were attributed to the each accused in inflicting injury on the
deceased. That witnesses turned hostile (PWs-32 and 33) cannot be a
ground for the acquittal of the accused.
12. We have considered the submissions of both the parties and
have examined the trial court record. The prosecution has relied upon
direct, circumstantial and medical evidence to establish the guilt of the
accused.
(A) Eye witnesses account
13. PW-11(Balraj Arya), deceased's son, claimed to have
witnessed the occurrence. The First Information Report was lodged on his
statement (Ex.PW-11/A) where he narrated graphic details of the
occurrence and specifically named the assailants who had arrived at the
spot in their Maruti Car DIC-3289 and stabbed his father Jage Ram with
knives. He also assigned motive to the accused for inflicting fatal injuries
to his father.
14. The incident occurred at about 8:00 P.M. The victim was
taken to AIIMS soon thereafter and his MLC (Ex.PW-9/A) was prepared
at about 8:15 P.M. in which he was declared brought dead. DD No.21
(Ex.PW-17/A) was recorded at 8:40 P.M. at police post Madan Gir. The
Investigating Officer sent the rukka for lodging the FIR at about 11:00
P.M. from AIIMS. PW-3(HC Paras Nath) recorded the FIR No.805/1985
at 11:05 P.M. Apparently there was no delay in lodging the report.
Prompt recording of the FIR ensures credibility to the version given at the
first instance. Since the rukka was sent without any delay, there was least
possibility of the police to fabricate the statement of the informant.
15. While appearing in the Court, PW-11 (Balraj Arya) proved
the version given to the police without any variation. He deposed that at
about 8:15 P.M. he and Kuldeep heard cries of his father and alarm of
driver Hakim Singh 'Maar diya' when they were standing near their cars.
They saw both the accused attacking his father with knives near the house
of Harpal. The Maruti car bearing registration No.DIC-3289 was standing
there with driver's door open, lights 'on' and engine in motion. Both the
accused fled the spot in the said car after inflicting the injuries. They
rushed the spot, lifted the victim and removed him in Maruti van to
AIIMS. PW-11 was cross-examined at length on various dates. The Trial
Court record reveals that he appeared to testify on nine dates from
23.05.1988 to 01.08.1989. It further reveals that long winded cross-
examination of the witness was conducted and most of the cross-
examination was irrelevant. Most of the questions were having no
relevance to the issues involved in the incident. The witness stood the test
of cross-examination and the accused could not elicit material
contradictions, inconsistencies or discrepancies to disbelieve the version
given by him. He categorically reiterated that he had taken the victim to
AIIMS and refuted the suggestion that Somnath was amongst the persons
to take the victim to the hospital. He fairly admitted that he did not report
the incident to the police. He elaborated that the stabbing incident took
two or three minutes and the victim was immediately removed to AIIMS
which was at a distance of 10 kilometres and it took 15/20 minutes to
reach there. He denied the suggestion that the incident took place much
prior to 8:15 P.M. and someone else caused the injuries to Jage Ram
outside the house of Harpal. He reasserted that his statement was
recorded at about 10:00 P.M. in the hospital. He answered all the queries
regarding employment of Hakim Singh as a driver with them. He further
stated that rough site plan was prepared by the Investigating Officer at his
instance. His bloodstained clothes and bloodstained clothes of PW-10
(Hakim Singh) were taken into possession by the police on the night
intervening 4/5 July 1985 at about 1:30 A.M.(night). He denied the
suggestion that in the absence of electricity there was complete darkness
and it was difficult to identify the assailants even from a short distance.
16. The overall testimony of this witness, in the absence of any
infirmities, inspires confidence. Being the son of the victim, he was
interested to bring the real culprit to book. He was not expected to let the
real culprit go scot free and to falsely implicate the innocent for the
murder of his father. His presence at the spot has been established beyond
doubt. He had taken the victim to the hospital soon after the incident in
the van No.DID-2063 driven by PW-31 (Kuldeep Singh Ahuja). His
name finds mention in the MLC (Ex.PW-9/A). The investigating officer
met him at the hospital and recorded his statement (Ex.PW-11/A) then and
there. His blood stained clothes were seized at the spot and as per
Forensic Science examination, the deceased's blood group was found on
his clothes. That established his presence and proved the factum of his
taking the injured /victim to the hospital. The accused did not claim that
PW-11 was present at any other specific place at the time of occurrence.
They did not examine any witness in their defence from the locality to
rule out his presence at the time of occurrence. In the cross-examination
he explained the sequences of events i.e. how his father had gone to make
payment to PW-32 (Harpal) for the building material purchased from him
and how he was stabbed near his house.
17. The contradictions/omissions pointed out by the appellant are
trivial in nature which do not go to the root of the case. The witness has
definitely made some improvements . In his deposition before the court
he deposed certain facts which were not stated by him in the statement
(Ex.PW-11/A). However, these facts deposed by him do not affect the
credibility of the witness as these are mere details of the incident which
the witness could not reasonably disclose in the statement (Ex.PW-11/A).
It is well-settled that an FIR is not an encyclopaedia and the informant is
not expected to give all the details. In the case of A.Shankar v. State of
Karnataka (2011) 6 SCC 279 the Supreme Court held:
"The court has to form its opinion about the credibility of the
witness and record a finding as to whether his deposition
inspires confidence. "Exaggerations per se do not render the
evidence brittle. But it can be one of the factors to test the
credibility of the prosecution version, when the entire evidence
is put in a crucible for being tested on the touchstone of
credibility." Therefore, mere marginal variations in the
statements of a witness cannot be dubbed as improvements as
the same may be elaborations of the statements made by the
witness earlier. "Irrelevant details which do not in any way
corrode the credibility of a witness cannot be labelled as
omissions or contradictions." The omissions which amount to
contradictions in material particulars i.e. materially affect the
trial or core of the prosecution case, render the testimony of
the witness liable to be discredited. [Vide State v.Saravanan :
(2010) 4 SCC (Cri) 580:, Arumugam v.State (2009) 3 SCC
(Cri) 1130: , Mahendra Pratap Singh v.State of U.P. (2009) 3
SCC (Cri) 1352, Sunil Kumar Sambhudayal gupta (Dr.) v.State
of Maharashtra (2011) 2 SCC (Cri) 375:, Vijay v.State of M.P.
(2010) 3 SCC (Cri) 639, State of U.P.v.Naresh (2011) 2 SCC
(Cri) 216 and Brahm Swaroop v.State of U.P. (2011) 6 SCC
288]"
18. The lengthy cross-examination of the witness on various
aspects shows that all those details could not possibly be incorporated in
the FIR. Presence of PW-11 (Hakim) at the spot was not controverted in
the cross-examination. The version given by the witness was
corroborated in material aspects by PW-10 (Hakim).
19. The prosecution claimed that PW-10(Hakim) was a witness
to the occurrence and his cries ('maar diya') alerted PW-11(Balraj Arya)
to rush to the spot. He testified that on 04.07.1985 at about 8:15 P.M.
Jage Ram had gone to make payment to Harpal Singh-Contractor. Balraj,
deceased's son, and Kuldip Singh Ahuja were also present there. At that
time, he saw Maruti car bearing registration No.DIC-3289 coming from
the side of Devli village. The accused Kaptan Singh and his son accused
Karamvir Singh after alighting from the car caught hold Jage Ram. They
took out Knives and stabbed him (deceased Jage Ram). He raised hue and
cry, Balraj and Kuldip rushed to save the victim. Both the accused fled
the spot in the car. Jage Ram sustained injuries on stomach, chest and
back. He with Balraj and Kuldip carried Jage Ram to AIIMS in a Maruti
van No.DID-2063. Jage Ram was declared brought 'dead' at AIIMS. The
police recorded Balraj's statement in the hospital. From there, they
returned to the place of occurrence and the articles lying at the spot were
seized by the police. In the cross-examination, he denied that he was a
blackmailer and had demanded a taxi, TV-set and other articles from the
accused to favour them. He admitted that he visited Tihar Jail to meet the
accused Kaptan but clarified that he did so under threats. He also
admitted that Ajit had participated in the birthday celebration of his son.
He denied any conversation with the family members of the accused
allegedly recorded in a cassette. He also denied that he had written a
letter to the accused to fulfill his demands. He reiterated that he was a
driver with Jage Ram and was residing in the back lane of Jawahar Park.
He further stated that Balraj's statement was recorded in the hospital at
10:30 P.M. He returned to the spot with the police where the
photographer took the photographs and the crime team inspected the spot.
He put signatures on the various seizure memos prepared there. He
elaborated that Balraj had gone to see Jage Ram at 8:00 P.M. Jage Ram
was taken to AIIMS in a van. He fairly admitted that he did not make
telephone call to the police. He denied that there was total darkness at the
spot due to failure of electricity. He explained that it was twilight. He
refuted the suggestion of receiving money from Balraj to favour him. He
denied the suggestion that Jage Ram sustained injury in some other
incident.
20. This witness withstood the test of cross-examination; he was
cross-examined at length on ten dates during the period from 01.09.1987
to 23.08.1990. Unnecessary questions having no relevancy with the facts-
in-issue were put to him. Despite that, the witness gave answers to all the
queries put to him and no material inconsistency emerged to disbelieve
his version.
21. Presence of the witness at the time of occurrence is quite
reasonable and probable as he was working as a driver in the van owned
by deceased Jage Ram. Since deceased Jage Ram was present at the place
of occurrence near his residence, there was every probability of this
witness is presume there, being his driver. Moreover, this witness used to
reside in B-4, Jawahar Park, near the residence of the deceased. The
accused themselves put a suggestion in the cross-examination that he used
to work as driver from 8:00 A.M. to 7:00 P.M. Another suggestion was
put to him that his wife used to live in the house of the deceased at A-1
Jawahar park. The accused did not examine any witness from the locality
to prove that PW-10 (Hakim) was not driver with the deceased or that he
was not present at the spot at the time of occurrence. Since the accused
had met the witness in the Tihar Jail twice and his son Ajit had
participated in the birthday celebration of his son, there was no question
of his mistaken false identity. Nothing was suggested to him if he ever
appeared as a witness earlier in any other case to extract money.
22. The prosecution examined witnesses to prove that PW-10
(Hakim) had taken the victim with PW-11 (Balraj Arya) and PW-31
(Kuldip Singh Ahuja) to AIIMS in the van soon after the occurrence. His
bloodstained clothes seized during the night intervening 4/5-7-2012
having the deceased's blood group established his presence at the spot.
Number of seizure memos prepared regarding seizure of articles bear his
signatures and confirm his presence there.
23. The defence dubbed PW-10 as an imposter and blackmailer
and urged the Court not to rely upon his testimony. It is a matter of record
that this witness was a prosecution witness whose statement under Section
161 Cr.P.C. was recorded on 05.07.1985. Admittedly, he visited Tihar
Jail twice on 29.11.1985 and 14.01.1986 and met accused Kaptan Singh.
He also invited Ajit Singh (Kaptan Singh's son) on the birthday
celebration of his son in May, 1997. Ajit Singh actively participated in a
function at his residence. Number of photographs taken at the time of
birthday celebration (Ex.PW-10/DA-3 to 13) shows presence of Ajit
Singh and his family in the said function. Apparently attempts were made
by the accused to win over this crucial witness. When the accused did not
succeed in their plan, he was dubbed a blackmailer. The accused did not
explain what prompted them to meet PW-10, a material witness, in Tihar
Jail and what was the purpose of his visits. Ajit Singh was not examined
to explain what forced him to join the birthday celebration of Hakim
Singh's son knowing that he was to appear as witness from the
prosecution's side. It appears that the accused were trying to get him
depose in their favour. This witness had no animosity with the accused
prior to the incident. His identity was never disputed by the accused. In
the absence of any infirmity in his deposition, we have no reason to
discard his version. The testimony of this witness has been scrutinized
with care and caution.
(B) ABSCONDANCE
24. The appellant's conduct in absconding was also relied upon.
We are conscious that mere abscondance by itself does not necessarily
lead to a firm conclusion of guilty mind. The act of absconding is a
relevant piece of evidence to be considered along with other evidence but
the value would always depend upon the circumstances of each case.
25. The incident took place on 4th July, 1985 at about 8:30 P.M.
PW-11 Baldev in his statement (Ex.PW-11/A) made soon after the
incident disclosed the names of the assailants and the number of the
vehicle (DIC-3289) in which they had arrived at the spot. From the spot,
SHO informed all the police stations on his wireless set to intercept the
car No.DIC-3289 and detain its occupants who had fled after committing
murder of Jage Ram. PW-22 (ASI Radhey Lal) from PS Nizamuddin on
patrolling duty at Patpar Ganj intercepted the said vehicle at about 4:45
A.M. The occupants of the said car revealed their names, i.e. Dharamvir,
Vijinder and Bhurey. The accused Kaptan had misrepresented himself as
'Bhure' and he succeeded in escaping on the pretext of answering the call
of nature. PW-34 (SI Ajit Singh) seized the car from PS Nizamuddin by
seizure memo Ex.PW-22/A. In the statement recorded under Section 313
Cr.P.C. the accused admitted ownership of the car.
26. Both the accused remained in hiding to avoid arrest after the
occurrence. The accused Kaptan surrendered in the Court on 22.07.1985.
The accused Karamvir was arrested after his apprehension in a case FIR
No. 182/1986 under Section 25 Arms Act on 19.03.1986. Apparently
both the accused remained absconding for number of days after the
incident. The accused had no reason for being away from their normal
place of living. They did not explain what led them to abscond and where
they remained during that period.
27. Undoubtedly the vehicle DIC-3289 belonged to the accused.
It came into possession of PS Hazarat Nizamuddin on 05.07.1985. The
accused did not explain how and under what circumstances the car owned
by them reached P.S.Nizamuddin. In the statement recorded under
Section 313 Cr.P.C. the appellant merely stated that it was in the
possession of his relatives on 05.07.1985. However, he did not elaborate
the name of the relative in whose possession the said car was and if so
when and for what purpose it was given. The accused did not examine
any such relative in defence. No efforts were made by such relative of the
accused to get the vehicle released after its seizure. The accused also did
not bother to get back their car from the police.
28. An inference can be drawn from these circumstances that the
accused were hiding because of a guilty conscience.
(C) Motive
29. Motive is something which prompts a person to form an
opinion or intention to do certain illegal act or even a legal act but with
illegal means with a view to achieve that end. In a case where motive
exists, it affords added support to the finding of the court that the accused
was guilty for the offence charged with.
30. Undoubtedly relations between the victim and the assailants
were hostile. In the statement recorded under Section 313 Cr.P.C. the
accused stated that Iswar Singh, (Jage Ram's brother) had lodged a false
case FIR 603/1983, PS Kalkaji against them. Jage Ram also had lodged
number of false cases against them. On 22.03.1982 Jage Ram and his
family had quarreled with him over land in Khasra No.22/14. The Court
of SDM had decided the Khasara girdawri application for the period
1980-81 in his favour. PW-19 (Insp.Shobtan Singh) proved FIR
No.250/1982 (Ex.PW-19/A) under Section 342/324 IPC against Kaptan
Singh and his family members. FIR No.280/1982 (Ex.PW18/8) was
registered on the complaint filed by Kaptan Singh against Jage Ram, his
son Balraj, brothers Iswar Singh and Daya Nand under Section
324/325/342 IPC. PW-16 (Raghbir Singh) PW-18 (Narender Kumar
Mahajan), PW-23 (Mahender Pratap Patwari) and PW-30 (Rajender
Singh) were examined to prove that Bhartu (Karamvir's paternal uncle)
sold a plot situated in Khasra No.598 village Devli for `35,000/- to
Narender Kumar Mahajan by Sale deed (Ex.PW-11/E) on 10.12.1979 who
in turn sold it to PW-16 (Raghbir Singh) on 19.03.1982 by Sale deed
(Ex.PW11/F). PW-16 (Raghbir Singh) proved that he gave the said plot
to Jage Ram (Since deceased) for caretaking. He denied the suggestion
that the accused Kaptan Singh was in physical possession of the said plot
and reiterated that it remained in their possession after its purchase
i.e.19.03.1982. The accused claimed that the possession of the plot was
forcibly taken by the deceased. Apparently relations between both sides
were strained on that account and according to PW-11 ( Balraj Arya)
accused Kaptan Singh picked up a quarrel with them over the said plot as
he wanted to take its physical possession. There were many civil and
criminal cases pending between the parties. The accused were nursing
grudge against the victim in respect of possession of the plot.
(D) Miscellaneous
31. Absence of recovery of knives is not fatal because after the
occurrence the assailants had fled the spot. They remained absconding for
number of days. There is no inconsistency between the ocular testimony
and the medical evidence. According to post-mortem examination, (by
PW-28- Dr.S.D.Sharma) twenty six injuries of various dimensions were
inflicted on vital body parts of the deceased. The autopsy doctor was of
the opinion that the injuries were caused by a double edged sharp weapon.
The cause of death was shock and haemorrhage as a result of multiple
ante-mortem stab injuries produced by sharp edged cutting weapon. He
was also of the opinion that the injuries were the likely result of two
weapons. In the cross-examination, he denied that he was approached by
Rajbir Singh, deceased's son, to give a false report. He clarified that those
were two types of weapons, one sharp edged and the other was blunt
round weapon. He further clarified that it depends upon the type of the
handle of the knife and if it was rounded, it could have caused those
injuries which he mentioned in the report to have been caused by blunt
weapon.
32. We find no force in the plea that the witnesses were unable to
identify the assailants due to total darkness at the spot. The occurrence
took place at 04.07.2005 at about 8:15 P.M. The timing for sun-set on
that day was 7:23 P.M. It was twilight at the time of incident. The
witnesses were well-known to the assailants. Under these circumstances
there was hardly any possibility of mistaken identity of the assailants
from a short distance. Moreover, the assailant had arrived in the vehicle
No. DIC-3289 belonging to them. The accused did not claim and prove
their presence at any other specific place at the time of occurrence.
33. The counsel assailed the site plans on record and urged that
they did not correctly show the scene of incident. The position of the
witnesses and the assailants, the place where the occurrence took place
etc. have not been depicted accurately. We find no merit in the plea. The
rough site plan (Ex.PW-34/B) contained all necessary details and was
prepared after inspection of the spot by PW-34 (SI Ajit Singh). No
material question was put to him in the cross-examination to challenge the
veracity of the site plan. He explained that after return from hospital, he
prepared the site plan on the pointing out of Balraj. He had given him the
number of the car and the position of the car in which the accused had
come. He fairly admitted that he did not show the position of the car in
the site plan. He admitted that the position of the accused, name of the
accused and position of the injured had not been shown therein. He further
disclosed that the position of the witnesses has been shown and their
names are mentioned therein. He did not deem it necessary to show the
position of the accused in the site plan. He further stated that he had
shown the pole of the road light in the site plan at point 'E'. Counsel
failed to convince how the deficiency in not showing the position of the
accused was fatal to the prosecution case. PW-4 (SI Davinder Singh)
proved scaled site plan (Ex.PW4/A). He visited the spot on 05.09.1985
and on the pointing out of PW-11 (Balraj Arya), took rough notes and
measurements. He admitted that he had seen the house that was under
construction at the time of inspection but had not shown it in the site plan
(Ex.PW4/A). He, however, elaborated that the said house under
construction was near point 'D' towards north-west side and was at a
distance of 5-6 meters. He clarified that since there was no place available
near point 'D', he could not show that house in the site plan. He denied
that the house under construction was about 15 meters away from point
'D'. In the absence of any irregularity in the site plan (Ex.PW-4/A), we
find no merit in the plea of the appellant that it did not depict the correct
situation.
34. Non-seizure of van in which the victim was taken to hospital
is inconsequential. The vehicle was only used to carry the injured to the
hospital. It was not mandatory to seize the vehicle which was not used in
the commission of the incident. Moreover omissions or deficiencies in the
investigation do not undermine the version of the witnesses. Non-seizure
of `3,500/- which the deceased intended to hand over to Harpal Singh for
purchase of building material is not consequential. PW-11 (Balraj Arya)
explained that when the deceased was taken to the hospital, the cash and
other papers in his possession were taken out. This explanation is
plausible as ordinarily when the patients are taken to hospital, their
personal belongings are taken out. Cash of `3,500/- was not a case
property in the incident.
(a) Delay in FIR
35. Early reporting of the occurrence by the informant with all its
vivid details gives an assurance about its truth. In the case of Jail Prakash
Singh v.State of Bihar & Anr. 2012 CRI.L.J.2101 the Supreme Court
held:-
"The FIR in criminal case is vital and valuable piece of
evidence though may not be substantive piece of evidence. The
object of insisting upon prompt lodging of the FIR in respect of
the commission of an offence is to obtain early information
regarding the circumstances in which the crime was
committed, the names of actual culprits and the part played by
them as well as the names of eye-witnesses present at the scene
of occurrence. If there is a delay in lodging the FIR, it looses
the advantage of spontaneity, danger creeps in of the
introduction of coloured version, exaggerated account or
concocted story as a result of large number of
consultations/deliberations. Undoubtedly, the promptness in
lodging the FIR is an assurance regarding truth of the
informant's version. A promptly lodged FIR reflects the first
hand account of what has actually happened, and who was
responsible for the offence in question."
36. It is argued that the police was clue-less regarding the
identity of assailants at the time of registration of the FIR and there was
inordinate delay in sending the special report to the concerned area
Magistrate.
37. The occurrence took place at about 8:30 P.M. The
deceased was carried to AIIMS and MLC (Ex.PW9/A) was prepared at
8:50 P.M. on 04.07.1985. PW-17 (HC Om Parkash) recorded DD No.21
(Ex.PW7/A) at about 8:15 P.M. on getting information from an unknown
person that an accident had taken place on Devli Raod. He handed over
copy of the DD No.21 to Constable Hakim Singh who with Constable Jai
Kishan went to the spot. PW-17 also recorded DD No.23 (Ex.PW17/B) at
9:20 P.M. on 04.07.1985 on getting information from duty Constable
Satbir Singh that one Jage Ram was admitted in injured condition from
Jawahar Park, Khanpur Devli Road, by his son Balraj and was declared
dead. The accused did not cross-examine the witness and his testimony
remained unchallenged.
38. PW-3 (HC Paras Nath) duty officer at PS Kalkaji received
rukka through Constable Hakim Singh at 11:05 P.M. and on the basis of
that recorded FIR No.805/85 (Ex.PW3/A). He testified that the special
report was sent by him to the Ilaka Magistrate, Deputy Commissioner of
Police, South District and Addl. Commissioner of Police and he made
entry No.13 in the Daily Diary Registrar 'A' in this regard. He also made
DD entry at No.14 regarding sending of the said report to the officers.
PW-29 (HC Shiv Ram) deposed that he delivered the copy of the FIR to
Shri R.K. Jain (the then Metropolitan Magistrate), Addl.C.P.North, Delhi
and D.C.P.South Delhi at their houses on the night intervening 4/5 July
1985 after getting it from the duty officer at about 12:40 A.M. In the
cross-examination, he clarified that he delivered the copy of the FIR at the
residence of the officers concerned at about 1:45 A.M. through their
servants. The prosecution has filed on record the copy of the FIR
delivered to Shri R.K.Jain bearing his endorsement that the FIR was seen
at 7:00 A.M. at his residence. All these reveal that there was no delay in
the lodging of the report with the police. There was no possibility of due
deliberations or manipulations before registeration of the FIR as alleged.
(b) MLC
39. Futile attempt was made to create unnecessary confusion
alleging that in the MLC (Ex.PW9/A) the word 'SOM' was altered to
'SON' . Counsel for the appellant argued that Jage Ram was taken in a
van to AIIMS from the spot by Sompal and others. Sompal admitted the
victim in the hospital and his name finds mention in the MLC. However,
the investigating officer in connivance with the informant forged the
relevant portion on the MLC to show that Balraj ('SON' of the deceased)
and not Sompal admitted him at the hospital.
40. We have gone through the record and find no force in this
submission. From the inception, prosecution case was that the incident
was witnessed by PW-11 (Balraj Arya), and PW-10 (Hakim Singh) and
they with Kuldip carried the victim in the van to AIIMS and admitted him
there. The MLC (Ex.PW9/A) clearly shows that Balraj (deceased's son)
admitted him in AIIMS. PW-9 (Dr.Raj Pal) on his appearance before the
court at the first instance on 08.10.1986 in the examination-in-chief,
deposed that Jage Ram was medically examined by him and he was
brought to the casualty by his son Balraj. However, in the cross-
examination, he deviated from his earlier version and admitted that he
had made changes in the words 'SOM'to 'SON' and that the deceased was
not admitted by his son Balraj. When he was recalled on subsequent date
on 04.10.1989, he clarified that he had given the earlier statement under
threat from the associates of the accused. This time he became
emboldened and testified that the deceased was admitted by his son
Balraj. He explained that the earlier statement under threat was due to the
fact that he had joined the hospital only in January 1985 as Junior
Resident and had no experience in deposing in the Court. We find no
reason to disbelieve the clarification offered by the witness. The accused
did not examine Sompal who allegedly admitted the victim at AIIMS.
(c) HOSTILE WITNESSES
41. It is true that PW-31 (Kuldip) did not support the prosecution
and turned hostile. He however, admitted that he had carried Jage Ram to
the hospital and admitted him there. Deviating from his statement
recorded under Section 161 Cr.P.C. he came up with the plea that he had
seen Jage Ram lying on the road in front of his house (under
construction) at about 06:00 P.M. In the cross-examination, he admitted
suggestions put to him by the defence counsel in support of his defence.
He admitted the suggestion that when he reached the spot, Balraj was not
present there and he had reached at the hospital subsequently. What was
suggested or put to him by defence in cross-examination, he admitted
without second thought.
42. Similarly PW-32 (Harpal) turned hostile and denied
purchase of building material from him for raising construction of his
house at Jawahar Park. He, however, claimed that the deceased had
purchased building material from him at the time of raising construction at
Raju Park. He further admitted issuance of cash memos (Ex.PW11/J2-J4)
for the purchase of building material. In the cross-examination by learned
APP, he clarified that these cash memos were issued by him for the
building material purchased for construction at Raju Park. In the cross-
examination, he introduced new facts stating that Som Pal son of Tek
Chand, Birpal, Ramesh and Raj Singh were present at the spot at the time
of occurrence at about 8:00 P.M. There was no light due to electricity
failure at that time. He heard some people saying that there was some
accident. It was darkness at the place where Jage Ram lay injured. He
had not seen anyone stabbing Jage Ram. He admitted the suggestion that
PW-31 (Kuldip) brought a van and he with Som Pal, took Jage Ram to the
hospital and the van was driven by PW-31 (Kuldip) and that Balraj
reached AIIMS subsequently and got blood on his clothes when he
embraced the dead body of his father.
43. From the deposition of both these hostile witnesses, it reveals
that they did not present true facts and had contradicted each other on
material facts. Contradictory suggestions regarding time when the
deceased was removed from the spot to AIIMS were put to both
witnesses in the cross-examination. They did not inform the police at any
time about the facts deposed for the first time before the court.
Apparently, they succumbed to the pressure of the accused and did not
present true facts before the Court. However, the version given by both
the witnesses partially supports the prosecution case, though in bits and
pieces. Their testimonies, establish that Jage Ram was taken to the
hospital in van No.DID-2063 (driven by PW-31). PW-31 admitted that
there was animosity between the accused and the deceased. He further
admitted that the deceased was residing at Jawahar Park and was raising
construction of the house. He further admitted that there were two
persons in the van in which the deceased was taken to hospital. He further
admitted that the clothes of PW-10 and PW-11 were seized by the police.
In the cross-examination he also admitted presence of PW-32 (Harpal).
PW-32 admitted issuance of cash memos (Ex.PW.11/2 to Ex.PW11/3-4)
bearing his signatures. Despite having the third copy of the cash memo
in his possession, he did not produce it. He admitted that the incident took
place at about 8:00 P.M. These facts can be taken into consideration to
lend credence to the prosecution case.
44. In the case of Rameshbhai Mohanbhi Koli & Ors v. State of
Gujrat (2011) 11 SCC 111, the Supreme Court held:
"It is settled legal proposition that the evidence of a
prosecution witness cannot be rejected in toto merely because
the prosecution chose to treat him as hostile and cross-
examined him. The evidence of such witnesses cannot be
treated as effaced or washed off the record altogether but the
same can be accepted to the extent that their version is found
to be dependable on a careful scrutiny thereof. [Vide Bhagwan
Singh v.State of Haryana 1976 SCC (Cri) 7, Rabindra Kumar
Dey v.State of Orissa 1976 SCC (Cri) 566, Syad Akbar v.State
of Karnataka 1980 SCC (Cri) 59 and Khujji v.State of M.P.
1991 SCC (Cri) 916]
In State of U.P.V. Ramesh Prasad Misra 1996 SCC (Cri)
1278, this Court held that evidence of a hostile witness would
not be totally rejected if spoken in favour of the prosecution or
the accused but required to be subjected to close the
prosecution or defence can be relied upon. A smilar view has
been reiterated by this Court in Balu Sonba Shinde V.State of
Maharashtra 2003 SCC (Cri) 112, Gagan Konojia v.State of
Punjab (2008) 1 SCC (Cri) 109, Radha Mohan Singh v. State
of U.P. (2006) 1 SCC (Cri) 661, Sarvesh Narain Shukla
v.Daroga Singh (2009) 1 SCC (Cri) 188 and Subbu Singh
v.State (2009)2 SCC (Cri) 1106"
(E) Conclusion
45. In the light of the above discussion, we find no merit in the
appeal preferred by the appellant against the impugned judgment. The
appeal is dismissed. The appellant is directed to surrender and serve the
remainder of his sentence. For this purpose, he shall appear before the
Trial court on 14th September, 2012. The Registry shall transmit the Trial
Court records forthwith to ensure compliance with the judgment. The
appeal is dismissed subject to compliance with the above direction.
(S.P.GARG)
JUDGE
(S. RAVINDRA BHAT)
JUDGE
AUGUST 17, 2012
sa
