Mohd. Saleem vs State (Govt. Of Nct Of Delhi)
2012 Latest Caselaw 4920 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  RESERVED ON : 27th JULY, 2012
                                  DECIDED ON : 23rd AUGUST, 2012

+                           Crl.A.03/2012

       MOHD. SALEEM                                          ....Appellant
                            Through :      Mr.R.M.Tufail, Advocate with
                                           Mr.Vishal Sehijpal, Advocate.

                                  versus

       STATE (GOVT. OF NCT OF DELHI)            ....Respondent
                     Through : Ms.Richa Kapoor, APP.

        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant Mohd.Saleem has preferred this appeal against

the judgment dated 16.11.2011 and order on sentence dated 18.11.2011 of

learned ASJ in SC No.42/2010 by which he was convicted for committing

offences punishable under Sections 302/147/148 IPC and 326/149/34 IPC

and was sentenced to undergo imprisonment for life with fine of `5,000/-

under Section 302 IPC; imprisonment already undergone with fine of

`2,000/- under Section 326/149/34 IPC; imprisonment for two years with

fine of `500/- under Section 148 IPC and imprisonment for one year with

fine of `500/- under Section 147 IPC. All the sentences were to operate

concurrently. In nutshell, the prosecution case is as under :

2. The police machinery came into motion after recording Daily

Diary (DD) No.36 at 12.16 A.M. on the night intervening 25/26.08.2007

at PS OIA, on getting information from Const.Harbir of PCR that a

quarrel had taken place at B-48, Okhla Industrial Area. The investigation

was assigned to HC Bhagwan Singh who with HC Bhura Singh, SI

Mahender Singh and SI Bhagat Ram reached the spot and came to know

that the injured had already been taken to hospital by PCR. He with SI

Bhagat Ram and HC Bhura went to AIIMS. Insp.Z.H.Khan also reached

there. He collected the MLC of Ram Singh who had been declared dead

on arrival. The injured Mani Ram was found unfit for statement. No

eyewitness was available in the hospital. On reaching the spot, the

Investigating Officer met Manoj, an eye-witness; recorded his statement

and he disclosed that Saleem used to tease women. On that day at about

11.00 P.M., the accused and his employee Bismillah, cut jokes with Rama

Devi and Ram Singh objected to that. In the quarrel, the accused

Mohd.Saleem sustained injuries on head due to fall. They left the spot

threatening to see him. After about 20-25 minutes, the accused with his

brothers Mohd.Wasim and Nasim, employee Bismillah, Wajid and Ajay

Kumar (facing trial in Juvenile Court) arrived on motorcycles

No.DL3SAL9317 and DL6SM5143 make Bajaj Pulsar, armed with big

'churas'. Ajay was armed with a 'danda'. They dragged Ram Singh from

the jhuggi and started beating him outside the factory at B-48, Okhla

Industrial Area. He and his neighbour Kalu and Mani Ram intervened to

rescue him. The accused and Bismillah inflicted stab injuries to Ram

Singh and he fell down after sustaining severe injuries. The assailants also

chased them. Saleem, Mohd.Wasim and Wajid caught hold Mani Ram

and stabbed him, as a result of which he also fell down after sustaining

injuries. Ajay injured him on head with a 'danda'. The assailants

thereafter, fled the spot extending threats on their motorcycles. Kalu made

telephone call from phone No.9868788931 at number 100 and

accompanied PCR to admit Ram Singh and Mani Ram at AIIMS. Ram

Singh expired in the hospital.

3. Insp.Z.H.Khan made an endorsement on the statement and

sent the rukka (Ex.PW-22/A) to lodge First Information Report. He

prepared site plan; seized blood, earth control, Rajesh @ Kalu's shirt and

prepared necessary seizure memos. Crime team inspected the spot. The

scene of incident was photographed from various angles.

4. During the course of investigation, inquest proceedings were

conducted and the body was sent for post-mortem examination. Dr.Puneet

Setia, conducted post-mortem examination of the body of the deceased

Ram Singh. Since the informant had indicted the assailants, the police set

out to apprehend them. Ajay was arrested from the jhuggi. He was

interrogated and his disclosure statement was recorded. Thereafter, with

Ajay, the police reached Sahin Bagh in front of plot No.F-167 and

arrested Saleem, Mohd.Wasim, Nasim, Bismillah and Wajid. They were

interrogated and their disclosure statements were recorded. At the instance

of the accused, weapons of offence i.e. knives were recovered. The IO

sent the exhibits to Forensic Science Laboratory and collected reports

subsequently. The motorcycles were seized. Statements of the witnesses

conversant with the facts were recorded. Wajid and Ajay being juveniles

were produced before Juvenile Court. After completing the investigation,

a charge-sheet was filed against the appellant and his associates. They

were duly charged and brought to trial.

5. To prove the charges against the accused, the prosecution

examined twenty-three witnesses in all. The statements of the accused

were recorded under Section 313 Cr.P.C. to afford them an opportunity to

explain incriminating circumstances. They denied their involvement in the

commission of the offence and pleaded false implication. They however,

did not examine any witness in defence.

6. After appreciating the evidence and considering the rival

contentions of the parties, the Trial Court by the impugned judgment

convicted the appellant for the offences mentioned previously.

Mohd.Wasim, Nasim and Bismillah were convicted for committing the

offences under Section 326/149/34 IPC; 148/147 IPC and were sentenced

to undergo imprisonment for the period already undergone etc. It appears

that they have not challenged their conviction by the impugned judgment.

Since the appellant alone has come in appeal, the evidence of the

prosecution witnesses will be appreciated qua him only.

7. Learned counsel for the appellant Mr.R.M.Tufail has

vehemently assailed the findings of the Trial Court and urged that it did

not appreciate the evidence in its true and proper perspective and relied

upon the testimonies of PW-1 (Ms.Preeti), PW-2 (Rajesh @ Kalu) without

ensuring their credibility. PW-1 (Ms.Preeti) being the wife of the deceased

was an interested witness. She made vital improvements in her deposition

and was cross-examined by learned APP after declaring her hostile. The

Trial Court ignored the testimonies of PW-3 (Rama Devi) and PW-6

(Mani Ram) without valid reasons. Both the witnesses turned hostile and

did not support the prosecution case. The prosecution miserably failed to

establish motive of the accused to inflict fatal injuries to the deceased. No

evidence came on record to infer that the accused used to tease women.

No such complaint was ever lodged against him by any such victim. PW-3

(Rama Devi) refuted the allegation that on the day of incident, the accused

had teased her. Learned counsel contended that adverse inference is to be

drawn against the prosecution for withholding material and crucial

witness Manoj Kumar on whose statement the First Information Report

was lodged. Manoj Kumar was a fictitious person and the close relative of

the deceased denied his existence. Testimony of PW-2 (Rajesh @ Kalu)

has not been corroborated. He was introduced as a false witness and his

presence at the spot is highly doubtful. Neither did he intervene in the

incident nor did he take the injured to the hospital. The police did not

medically examine him to ascertain if he sustained injury in the

occurrence. The police did not lodge First Information Report on the

statement of Mani Ram who was conscious to make statement in the

hospital. The counsel further pointed out that PW-2 (Rajesh @ Kalu) was

unable to pin-point the knife with which the injuries were inflicted. No

Test Identification Proceedings were conducted for identification of the

case property.

8. On the other hand, learned APP supported the judgment and

urged that it did not call for any interference. PW-2 (Rajesh @ Kalu) and

PW-1 (Ms.Preeti), who witnessed the occurrence have fully supported the

prosecution and despite lengthy cross-examination, the accused could not

elicit material discrepancies to disbelieve them. The assailants were

named in the First Information Report and specific role was attributed to

each of them. The accused were arrested soon after the occurrence and

pursuant to their disclosure statements, the police succeeded in recovering

the weapons of offence. PW-3 (Rama Devi) and PW-6 (Mani Ram) were

victims but they did not opt to support the prosecution and turned hostile.

They cannot be permitted to sabotage the prosecution case as they joined

hands with the accused for ulterior purposes. Turning hostile of some

witnesses cannot be a ground for the acquittal of the accused. He further

contended that no adverse inference can be drawn against the prosecution

for non-examination of Manoj Kumar because despite best efforts, he

remained untraced. There is consistency between the ocular and medical

evidence. Minor variations in the testimony of the prosecution witnesses

are not fatal to the prosecution case.

9. We have considered the submissions of both the parties and

have examined the Trial Court record. Homicidal death of deceased Ram

Singh is not under challenge. PW-5 (Dr.Shiva Prasad) proved post-

mortem examination report (Ex.PW-5/A) in which cause of death was

opined as respiratory arrest consequent upon injury to the lung. Injury

No.1 was opined sufficient to cause death in ordinary course of nature. All

injuries were ante mortem and fresh in duration. Undoubtedly, it is a case

of homicide.

10. PW-2 (Rajesh @ Kalu) claimed that the occurrence was

witnessed by him. He testified that on the night intervening 25/26.08.2007

at about 10/11.00 P.M. Mohd.Saleem and his servant Bismillah were

sitting on a takhat on the road outside his jhuggi. They used to tease

women. About 20/25 days earlier they had teased a woman and had

sought pardon from her. On that day, they again started teasing their

neighbour Rama Devi. Ram Singh (since deceased) objected and told the

accused not to tease her. A quarrel ensued in which the accused fell down

and sustained injuries on his head. Both the accused and Bismillah left the

spot threatening to see him. He further testified that after about 20/25

minutes the accused brought his brothers Wasim, Nasim, servant

Bismillah, Wajid and Ajay, shopkeepers (the last two are facing trial in

the Juvenile Court) on two motorcycles. They all except Ajay were having

'churas' in their hands and Ajay was having a 'danda'. They pulled Ram

Singh and started beating him in front of factory situated at B-48, Okhla

Industrial Area. When he and Mani Ram intervened to save Ram Singh,

the accused also started beating them. The accused attacked Ram Singh

with knives as a result of which he fell down and became unconscious.

He, Mani Ram and Manoj started running away. Ajay gave a 'danda'

blow to Mani Ram. The accused, Mohd.Wasim, Nasim and Bismillah

caught hold Mani Ram and attacked him with 'churas' as a result of

which he fell down. The witness further deposed that he informed the

police at number 100. PCR reached the spot and removed Ram Singh and

Mani Ram to AIIMS. Ram Singh was declared brought dead. Condition of

Mani Ram was serious. He joined the investigation with the local police

and the accused were arrested. They were interrogated and their disclosure

statements were recorded. Pursuant to the disclosure statements (Ex.PW-

2/K to PW-2/O), the accused recovered the 'churas' collectively exhibited

Ex.PW-2/P2 and its sketches (Ex.PW-2/P to PW-2/T) were prepared.

They were seized vide seizure memos (Ex.PW-2/U to PW-2/Y). The

police also seized his blood stained shirt (Ex.PW-2/Z). Danda (Ex.P-1)

was also recovered.

11. This witness was cross-examined at length. In the cross-

examination, he fairly admitted inability to tell which 'chura' was used by

which accused in causing injuries. He denied the suggestion that Manoj @

Alam was having illicit relations with the deceased's wife and when Ram

Singh came to know about it and objected, relations between the two

became strained. He further denied the suggestion that Ram Singh was

murdered by Manoj and his colleagues due to illicit relations with his

wife. He reiterated that when the accused came on two motorcycles, he,

Manoj, Ram Singh and Mani Ram were sitting on the takht and

deceased's wife and children were inside the room. The accused dragged

Ram Singh from takht to the place of incident and gave beatings to him.

He and Mani Ram attempted to intervene and rescue the victim from the

hands of the accused. The witness also claimed to have sustained injuries

in the incident. He further disclosed that he remained in the hospital for

about 20/25 minutes and met the IO at the place of occurrence. Nasim,

Wasim, Wajid and Ajay were apprehended at the first instance and at their

instance, accused Saleem and Bismillah were apprehended from village

Jasola. He denied the suggestion that the accused were falsely implicated

by him and Manoj @ Alam and nothing was recovered in his presence.

12. The entire testimony of this independent witness reveals that

that he stood the test of searching cross-examination. The accused could

not elicit material contradictions, inconsistencies or discrepancies in the

cross-examination to disbelieve his version. No suggestion was put to him

that at the time of occurrence, he was not present at the spot. PW-2 was

resident of B-48, Sanjay Camp, phase-I, Okhla Industrial Area, New Delhi

and the occurrence had taken place near his jhuggi at about 11.00 P.M.

Being a neighbour, his presence at the spot was quite natural and normal.

PW-2 reported the incident to the police and made a telephone call at

number 100. His testimony in this regard remained unchallenged. He

further testified that PCR van reached the spot and removed Ram Singh

and Mani Ram to AIIMS. He had gone to the hospital and remained there

for 20/25 minutes and left the hospital at about 12/12.30 A.M. He had

informed the concerned doctor that injured Ram Singh was brought by

him. PW-7 (HC Thankappan NK), Incharge PCR, deposed that at about

12.00 (night) he received information about a quarrel near jhuggi No.B-

48. On reaching the spot, he found two persons in injured and unconscious

condition. They were taken to AIIMS with the help of one person whose

name he did not remember. The accused did not cross-examine him and

his testimony remained uncontroverted. Rukka (Ex.PW-22/A) was

recorded on the statement of Manoj. In his statement, Manoj informed the

police that PW-2 made a telephone call at number 100 from his mobile

phone No.9868788931 and admitted Ram Singh and Mani Ram in AIIMS

taking them in PCR van. DD No.36 (Ex.PW-10/A) recorded at 12.16

(night) at police station OIA reveals that information was received from

Const.Harbir of PCR regarding a quarrel at B-48, Okhla Industrial Area

from phone No.9868788931. Number of memos prepared at the spot bear

signature of this witness and confirms his presence at the spot. The

witness further claimed that he intervened to rescue the victims and in the

process also sustained injuries. Blood stained shirt of PW-2 (Sh.Rajesh @

Kalu) was seized vide seizure memo (Ex.PW-2/Z) on 26.08.2007 and sent

for examination to Forensic Science Laboratory (FSL). As per FSL

reports (Ex.PW-23/A and Ex.PW-23/B), human blood was detected on the

shirt shown at Sl.No.15. It further confirms his presence at the spot. He

has not been cross-examined on this aspect.

13. No ulterior motive has been assigned to PW-2 for falsely

implicating the accused in the incident. He was residing in the

neighbourhood of the deceased as well as of the accused. Nothing has

emerged to show that he was having strained relations with the accused

prior to the occurrence. In the cross-examination, he elaborated that he

used to repair gas-stoves. He denied the suggestion that he used to indulge

in filling of gas cylinders and selling of kerosene oil without licence and

had got the patronage of the police. He clarified that he appeared before

the Court for the first time in this case and never deposed anywhere in any

case before any Court. He further denied that an altercation had taken

place with the accused 20/25 days prior to the incident. He refuted the

suggestion that the accused was falsely implicated by him and Manoj due

to enmity. The accused did not lodge any complaint against this witness

for any alleged altercation. The defence taken by the accused is

inconsistent.

14. During the course of arguments, it was vehemently

contended that Manoj was a fictitious entity and never resided in the

locality. Counsel took exception for not producing him before the Court.

It was argued that there was no such person with the name Manoj and the

prosecution case must fail due to non-examination of this crucial witness

who was a complainant. We are not impressed with these submissions.

Suggestions were put to PW-2 that Manoj Kumar was having illicit

relations with the deceased's wife and his murder was due to objection to

that relationship. The accused has failed to reconcile two inconsistent

pleas. On one hand, he alleges that there were illicit relations between

Manoj and deceased's wife and his murder was the result of strained

relationship. On the other hand, the counsel has argued that Manoj is a

fictitious entity and he never lodged any complaint with the police.

15. The Trial Court record reveals that Manoj was cited as a

witness to be examined by the prosecution. During trial, summons were

issued to Manoj Kumar to secure his presence in the Court. On

26.05.2008, after considering the report on the process returned

unexecuted, the Court handed over 'Dasti' summons to the Investigating

Officer to ensure his presence for 27.05.2008, 24.02.2009, 09.04.2009,

03/04.06.2009, 18.11.2009 and 14.09.2010. On 06.12.2010, IO/SHO was

directed to produce Manoj on the next date of hearing or report whether

they were in a position to produce him or not. On 01.02.2011, the

investigating officer reported that Manoj Kumar was not available at the

given address and he could not trace him despite best efforts after he

changed the address two years back. On 09.02.2011, the prosecution was

directed to conclude the entire prosecution evidence on the next date of

hearing. Manoj was again reported to be untraceable. On 06.07.2011, the

Trial Court closed the prosecution evidence. The order-sheets reveal that

all efforts were put to trace Manoj and produce him before the Court.

However, after he shifted to a new place, he could not be searched and the

prosecution failed to produce him before the Court. No adverse inference

can be drawn against the prosecution as despite best effort his presence

could not be secured in the Court. The case was registered on the

statement of Manoj and he gave graphic details about the incident. He

himself sustained injuries and was medically examined vide MLC marked

PW-21/DA on judicial file. We have no reason to believe that Manoj was

a fictitious entity.

16. Moreover, non-examination of a witness is not always fatal

to the prosecution case. In Sambhu Das @ Bijoy Das and Anr. v. State of

Assam (2010) 10 SCC 374, the prosecution could not examine witness

who was supposed to have informed about the alleged incident, the

Supreme Court held:-

"In our opinion, it is not necessary for the prosecution to examine every other witness cited by them in the charge-sheet. Mere non-examination of some persons does not corrode the vitality of the prosecution version, particularly, the witnesses examined have withstood the cross-examination and pointed to the accused persons as perpetrators of the crime. The trial court and the High court have come to the conclusion that the evidence of PW-1 is trustworthy and reliable. We have also carefully perused the evidence of PW-1, whose evidence is corroborated by PW-8 and the post-mortem issued by PW-6, we are convinced that the trial court and the High Court were justified in believing the testimony of PW-1."

17. The accused in the statement under Section 313 Cr.P.C. did

not state that deceased's wife had illicit relations with Manoj. He also did

not examine any witness to prove the serious allegations about the

character of the deceased's wife. Nothing emerged on record if the

accused had ever seen Manoj and deceased's wife in objectionable

position. Nothing was suggested to PW-1 Preeti (deceased's wife) in the

cross-examination if she was having objectionable relations with Manoj.

The accused rather pleaded inconsistent defence that Majoj was a

fictitious entity.

18. PW-2 (Sh.Rajesh @ Kalu)'s version has been corroborated

on material facts by PW-1 (Preeti). She used to reside in a house opposite

B-48 Okhla Industrial Area. Her husband used to run a tea shop in front

of B-48 company. She testified that at about 11:30 P.M. on the night of

occurrence on 25th in the year 2007, the accused Mohd.Saleem

accompanied with his brothers and employees came and caught hold her

husband. He struck her husband with a knife. Saleem and Naseem also

caught hold her neck. The police took her husband to the hospital where

he expired. The assailants fled the spot on motor-cycles. In the cross-

examination by the learned APP, she disclosed that the accused used to

run a meat and chicken shop near her house. She further admitted the

suggestion that on that day at about 11:00 P.M. the accused was seated on

a cot outside his Jhuggi and had started making fun of Ramadevi and her

husband objected to that. She further admitted that her husband was pulled

out from the jhuggi by the assailants and was inflicted injuries with knives

by Saleem and Bismillah. She further admitted that Mani Ram @ Ram

Lal and Kallu (a neighbor) intervened; all the accused had knives with

them and they assaulted her husband; Mani Ram was also injured in the

incident and was taken to the hospital by the police. She claimed that the

incident was witnessed by her with her eyes.

19. In the cross-examination, she denied that at the time of

occurrence, she was inside her house. She clarified that she had come out

with her child. The incident took place at the gate of the company in front

of her house which was at some distance. There was dim street light. She

further revealed that she became unconscious and fell down. She was not

in senses for about 15/20 minutes after her husband was assaulted with

knives. She regained consciousness after the arrival of the police. She

denied that the accused was shown to her at the police station. She

clarified that the accused used to come regularly to the shop for tea.

20. PW-2 deceased's wife aged about 21 years, an illiterate lady

rarely came out in public. The evidence of an illiterate rustic witness is to

be appreciated in that context.

21. In the case of 'State of Uttar Pradesh Vs. Krishna Master

and Others' (2010) 12 SCC 324, the Supreme Court held :

XXXX XXXX XXXX "17. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case.

24. The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness."

XXXX XXXX XXXX

22. Regarding complicity of the accused, she has categorically

deposed the he caused injuries to her husband with knife. The occurrence

had taken place near her residence. It is not believable that after hearing

the commotion, she would not rush out to witness what was happening.

Her presence at the spot is quite reasonable and natural. She had no

ulterior motive to falsely name the accused for causing murder of her

husband. Being deceased's wife she must be interested to bring the real

culprit to book. She lost her husband in young age and was not expected

to screen the real offender. Material facts deposed by her remained

unchallenged in the cross-examination. The accused did not deny his

arrival along with his associates on the spot. He did not controvert her

specific assertion that her husband had objected to the accused's cutting

jokes/making fun with Rama Devi. No ill-will or motive was assigned to

her for falsely implicating the accused. She was categorical that the

accused was amongst the assailants and he actively participated in the

commission of the offence and inflicted injuries on her husband with

knife. She was also certain that the assailants had come on motor-cycles

and fled the scene after the occurrence. Of course she could not narrate the

entire incident specifying the role to the other assailants in causing

injuries to her husband and Mani @ Ram Lal. The Court can well

understand her trauma and mental stress when she saw the horrible

incident whereby her husband was brutally injured with knives by the

assailants including the accused.

23. PW-1 (Preeti) and PW-2 (Rajesh @ Kalu) have categorically

and in certain terms spoken the involvement of the accused in the crime

and we have no reasons to disbelieve their cogent version. Both of them

disclosed that the assailants arrived at the spot on motor-cycles.

Subsequently, motor cycles used in the crime i.e. Bajaj Pulsar

DL3SAL9317 (black colour) and Bajaj Pulsar DL6SM5143 were

recovered by seizure memos (Ex.PW12/D and Ex.PW-12/C).

Complainant Manoj had also disclosed that these Bajaj Pulser motor-

cycles were used by the assailants. Subsequently, the motor-cycle No.

DL6SM5143 was taken on superdari by financer Ankur Trade Links Pvt.

Ltd. when Wajid at whose instance the motor-cycle was recovered, did

not oppose its release. Motor-cycle No.DL3SAL9317 belonged to accused

Wajid and was taken on superdari by Naseem Ahmed.

24. There is no inconsistency between the ocular and medical

evidence. The post-mortem examination of the body was conducted by

Dr.Puneet Setia. PW-5 (Dr.Shiva Prasad) proved the post-mortem report

(Ex.PW-5/A) prepared by Dr.Puneet Setia as he had left the services and

his whereabouts were not known. As per post-mortem examination, two

injuries of various dimensions were found on the deceased and injury

No.1 was opined sufficient to cause death in the ordinary course of nature.

Autopsy surgeon was of the opinion that injury No.1 and 2 were caused

by double edged stabbing weapon.

25. PW-19 (Dr.Rajneesh Kumar) proved the MLC (Ex.PW-

19/A) pertaining to injured Ram Lal @ Mani Ram. Injuries clean

lacerated wound (CLW) of various dimensions were found on his person.

In the alleged history, it was mentioned that he was assaulted with knife

around 12:05 A.M. on 26.08.2007. In the cross-examination, he revealed

that on 26.08.2007 on arrival, the patient was fit for statement. The

accused has highlighted that when injured Ram Lal @ Mani Ram was

found fit for statement, why the Investigating Officer did not record his

statement to lodge First Information Report. There is some inconsistency.

As per MLC (Ex.PW-19/A) the patient was declared unfit for statement at

15:10 A.M. on 26.08.2007. Again he was declared unfit for statement on

two other occasions on 27.08.2007. Only on 04.09.2007 he was declared

fit for statement. It is not clear if Ram Lal @ Mani was fit to make

statement when the police visited him.

26. It is true that PW-6 (Mani Ram) turned hostile and did not

assign any role to the accused in inflicting injuries to him and others. He

merely stated that on 25.08.2007 at about 11.00 P.M. he was sleeping on

the takhat outside his jhuggi opposite to factory No.B-48, Okhla, Phase-I

and got up on hearing commotion. He started running towards his jhuggi.

Ajay (having a shop in the market) hit him with a rod on head as a result

of which he fell down in the 'gali' and became unconscious. He further

revealed that when he was lying in the 'gali', 'somebody' hit him with a

knife thrice on the right side of abdomen. When he tried to get up, he was

hit by assailants who were 3-4 in number and they stabbed him on

stomach. He was discharged from the hospital after 27-28 days. He

further stated that Wasim was also with Ajay at that time. He was cross-

examined by learned APP, after seeking Court's permission. He denied

the statement (Ex.PW-6/E) recorded under Section 161 Cr.P.C.

27. Apparently, PW-6 (Mani Ram) has not presented true facts

before the court. He was injured in the occurrence in which deceased

Ram Singh sustained injuries. He was taken to the hospital along with

Ram Singh at the same time by PW-2 (Rajesh @ Kalu) in the PCR van

and was admitted at AIIMS. In the MLC (Ex.PW-9/A) it was recorded

that he was assaulted with a knife at 12:05 A.M. on 26.08.2007. The

witness was conscious at the time he was admitted in AIIMS. It is not

believable that he won't know the name of the assailants who inflicted

knife blows on his person.

28. Similarly PW-3 (Rama Devi) did not opt to support the

prosecution and turned hostile. She denied that on the day of occurrence

she was teased by the accused-Saleem. In the cross-examination by

learned APP after court's permission, she denied the contents of statement

(Ex.PW3/A) to have been made to the police under Section 161 Cr.P.C.

In the cross-examination, she, however, admitted that one 'Alam' used to

reside in the Jhuggi of the deceased in those days. She is related to PW-6

(Mani Ram) who was seriously injured in the incident. She did not

explain who had caused injuries to her brother-in-law Mani Ram and what

was the motive of the assailants. Apparently, she also did not present the

real facts before the court.

29. It is settled principle of law that statement of a hostile witness

can also be relied upon by the Court to the extent it supports the case of

the prosecution. The evidence of such witnesses cannot be treated as

effaced or washed off the record altogether.

30. Undoubtedly, injuries were caused to the deceased and Mani

Ram with sharp weapons. The police is alleged to have recovered knives

(Ex.PW-2/U to 2/X) pursuant to the disclosure statements of the accused.

However, the recovery of knife cannot be considered as incriminating

circumstance against the accused as PW-2(Rajesh @ Kalu), star witness

for the prosecution, fairly admitted that he was unable to identify the

specific knife used by him in the commission of crime. He also could not

identify as to which weapon was recovered from which accused. All the

knives were collectively exhibited as Ex.PW-2/P. Only on one knife at

serial number 13 'human' blood was detected. It could not be ascertained

if the blood group of the deceased was there on this 'chura' to infer if it

was used in the commission of the offence. However, no adverse

inference can be drawn against the prosecution merely because the

prosecution failed to connect the weapon of offence with the crime. The

post-mortem examination clearly establishes use of sharp weapon in

causing the injuries.

31. In the statement recorded under Section 313 Cr.P.C., the

accused did not give plausible explanation to the incriminating

circumstances. He came up with the defence that he was not present at

the spot at the time of occurrence. He, however, did not elaborate as to

where else he was present at that time. He did not examine any family

members or witnesses from the locality to prove his defence of 'alibi'.

32. There was no delay in lodging the First Information Report.

The occurrence took place at about 11:25 P.M. Daily Dairy No.36B

(Ex.Pw10/A) was recorded about the quarrel at 12:16 A.M.(night) after

receiving information from PW-7(HC Thankappan N.K.) who received

information regarding quarrel at about 12:00 mid night and reached with

PCR at the spot. He removed both the deceased Ram Singh and injured

Mani Ram to AIIMS and admitted them there. MLC (Ex.PW-16/A)

reveals that deceased Ram Singh was admitted at AIIMS at about 12:48

mid night on 26.08.2007. Mani Ram was admitted at the same time vide

MLC (Ex.PW19/A). Rukka was sent after conducting necessary

proceedings at 6:00 A.M. on 26.08.2007. PW-9 (HC Rameshwar) handed

over the copy of the FIR to be delivered to the area Magistrate after

registering the FIR on the basis of the rukka at 6:45 A.M. PW-14

(Ct.Vijender) was examined to prove that he went to the residence of Sh.

Satish Kumar, Metropolitan Magistrate, at Sonipat, Haryana to deliver the

said report. FIR on record contains the endorsement of the Metropolitan

Magistrate showing that he received the First Information Report at his

residence at 2:00 P.M. on 26.08.2007. Since the FIR was lodged

promptly without undue delay, there was least possibility to fabricate a

false case to implicate the accused whose name finds mention in the First

Information Report.

33. In the light of the above discussion, we find no merit in the

appeal preferred by the appellant against the impugned judgment. The

same is without merits and is dismissed. The Trial Court record be sent

back forthwith.

CRL.M.B.6/2012

In view of the order passed above, the bail application is

disposed of as infructuous.

(S.P.GARG) JUDGE

(SANJIV KHANNA) JUDGE AUGUST 23, 2012 tr/sa