Vishwajit & Anr vs State
2012 Latest Caselaw 4137 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON : 06th July, 2012
                                 DECIDED ON : 13th July, 2012

+                           Crl.A.360/1998
       VISHWAJIT & ANR.                                  ....Appellants
                Through :        None
                                 Versus

       STATE                                             ....Respondent
                            Through :   Mr.Sanjay Lao, APP.
        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellants Vishwajit @ Bittoo and Ajay @ Ajji have

preferred the appeal against the judgment and order on sentence dated

12.08.1998 of learned Additional Sessions Judge in SC No.21/1996 by

which they were convicted for committing offence punishable under

Section 302/34 IPC and sentenced to undergo imprisonment for life with a

fine of `2,000/- each.

2. The prosecution version as unfolded during trial is as

follows:

3. Daily Diary (DD) (Ex.PW-8/N) was recorded at PS

Shakarpur on 04.09.1992 at about 09.10 P.M. when Const.Om Prakash on

duty at LNJP Hospital informed that Sanjay S/o Om Prakash had admitted

Suresh S/o Ram Singh in injured condition. The investigation was

assigned to SI Bhim Singh who along with Const.Dilbagh Singh and

Const.Basti Ram reached there and collected the MLC. Injured Suresh had

already expired. Mukesh, deceased's brother met SI Bhim Singh (IO) at

the hospital and he recorded his statement (Ex.PW-1/A). The IO made

endorsement (Ex.PW-8/A) and sent the rukka through Const.Dilbagh

Singh for lodging the First Information Report (FIR). In the statement,

Mukesh disclosed that on 04.09.1992 at about 08.00 P.M. the deceased

had accompanied PW Madan and PW Sanjeev to go out for strolling.

Having apprehension of some quarrel, he followed them keeping a

distance of ten paces. When they reached near Krishna Mandir, Ganesh

Nagar Chowk, Vishwajit @ Bittoo, Ajay @ Ajji, Mohan, Vijay and

Sandeep Kumar @ Pappal already present there surrounded his brother.

Vijay and Sandeep Kumar @ Pappal caught hold the victim and Vishwajit

@ Bittoo and Ajay @ Ajji stabbed him with knives. In the meantime,

Mohan arrived with a hockey and hit on his waist. Thereafter, all the

assailants fled the spot. He sent the victim to the hospital through Madan

and Sanjay.

4. During the course of investigation, the Investigating Officer

prepared site plan. Since the informant had indicted the accused persons,

the police set out to arrest them. They were arrested and their disclosure

statements were recorded. The accused Vishwajit @ Bittoo and Ajay @

Ajji pursuant to their disclosure statements got recovered 'Kripan' and

'Katari' from a jhuggi which were seized. The IO sent the exhibits to

Forensic Science Laboratory (FSL) and collected its reports subsequently.

He recorded the statements of the concerned witnesses conversant with

the facts. After completing the investigation, a charge-sheet was filed

against the appellants along with Sandeep Kumar @ Pappal, Vijay and

Mohan Singh for committing the offences under Sections 302/120B read

with Section 34 IPC. They were duly charged and brought to trial.

5. To substantiate the charges, the prosecution examined sixteen

witnesses in all. The statements of the accused persons were recorded

under Section 313 Cr.P.C. They denied their involvement in the

commission of the offence and pleaded false implication. They examined

Sanjay Bhatia as DW-1 in their defence.

6. After appreciating the evidence and considering the rival

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

convicted both the appellants Vishwajit @ Bittoo and Ajay @ Ajji for

committing the offence punishable under Sections 302/34 IPC and

acquitted Mohan Singh, Vijay and Sandeep Kumar @ Pappal. Aggrieved

by the said orders, the appellants have come in appeal.

7. We have heard Ld.APP for the State who has justified the

findings recorded by the learned Trial Court against the appellants. He has

urged that no interference is called for in the impugned judgment which is

based upon the ocular testimony of PW-1 (Mukesh Kumar), the real

brother of the deceased. He has fully supported the case of the prosecution

and no material contradictions have been elicited in his cross-examination

to shatter his testimony. The rukka was recorded on his statement, in

which he described graphic details of the incident and attributed specific

role to the each accused in inflicting injuries on the person of the

deceased. The accused got recovered the weapons of the offence pursuant

to their disclosure statements. PW-1 had no ulterior motive to make false

deposition against the accused. Being the real brother of the deceased, he

would not intend to screen the real culprits and must be interested to see

that the real offenders are brought to book. Close relationship of a witness

with the victim far from being a foundation for criticism offender is often

a sure guarantee of truth. Turning hostile of the independent witnesses

itself cannot be a ground for the acquittal of the accused.

8. We have considered the submissions and have scrutinized the

Trial Court record. Undoubtedly, the case of the prosecution is based upon

eye witnesses account. The prosecution claimed that the incident was

witnessed by PW-1 (Mukesh Kumar), PW-2 (Sanjeev) and PW-3 (Madan

Kumar Pal). However, during the trial, PW-2 (Sanjeev) and PW-3 (Madan

Kumar Pal) did not support the prosecution and turned hostile. They did

not assign any role to the accused in causing injuries to the deceased.

They denied their presence at the spot at the time of occurrence. They

were declared hostile and were cross-examined by APP with the Court's

permission. However, nothing material emerged in their cross-

examination to point an accusing finger against the accused.

9. We are left with the sole testimony of PW-1 (Mukesh

Kumar). We are conscious that there is no rule either of law or prudence

that family members of the deceased are incompetent witnesses. Their

evidence is not to be jettisoned merely on the ground of interestedness,

provided it is otherwise credible and fits in with the broad probabilities of

the case. However, it had to be viewed with required and necessary

caution. In this context, it was held, by the Supreme Court in „Anvaruddin

v. V.Shakur‟ 1990(3) SCC 266, that :

"It is well settled law that evidence of witnesses to the occurrence cannot be thrown overboard merely because they are interested and partisan witnesses. All that the law demands is that their evidence should be scrutinised with great care and caution to safeguard against the normal temptation to falsely implicate others."

10. On scanning the Trial Court record, it reveals that the

conduct of the witness at the time of incident and soon thereafter is highly

unnatural, unusual and unreasonable and makes his presence at the spot

highly suspicious. His testimony and conduct does not inspire confidence

and merit acceptance that he was an eye witness to the incidence. In the

testimony, PW-1 (Mukesh Kumar) proved the version given by him to the

police in his statement (Ex.PW-1/A) recorded at the earliest in which he

narrated vivid description of the assailants and assigned specific role to

them. Admittedly, PW-1 (Mukesh Kumar) did not intervene to rescue his

real brother when allegedly the accused along with his associates were

stabbing him repeatedly on his vital organs. Neither he raised alarm nor

did he chase the assailants. He did not report the incident to the police. He

even did not attempt to take the injured to the hospital and conveniently

returned to his residence to inform his family members. In his deposition,

he did not elaborate at what time he reached the hospital. Even after

reaching the hospital, he did not report the incident to the duty constable

present there. Only when PW-8 (SI Bhim Singh) reached the hospital on

getting information vide DD No.64B, he purportedly narrated the incident

to him. PW-1 (Mukesh Kumar) did not explain the delay in reporting the

serious incident to the police. His conduct at the time of incident about

what he did at that time corrodes the credibility of his version i.e. he was

an eye witness. His conduct is a strong indicator that he had not

witnessed the incident as claimed by him. In this case it is not one aspect

alone, but several aspects relating to his conduct, which compel us to

record that he was not an eye witness. If the behaviour of a person

claiming to be an eye witness is contrary to the course in which a similar

situated person would normally behave and there is no satisfactory

explanation for such an abnormal conduct, it will not be safe to base the

conviction solely on the basis of his testimony, since his very credibly

stands impeached and becomes suspect on account of such behaviour. The

conduct of a witness can be termed as unnatural when the reaction

demonstrated by him is so improbable or so inconceivable that it cannot

be expected from a human being placed in similar situation.

11. The incident occurred at about 08.00 P.M. The injured was

got admitted by Sanjay S/o Om Prakash at 08.40 P.M. PW-6 (Const.Om

Prakash) informed the duty officer PS Shakarpur and DD No.64B was

recorded in this regard at 09.10 P.M. However, the rukka was sent for

registration of the case at 11.10 P.M. PW-8 (SI Bhim Singh) did not

explain the inordinate delay of three hours in sending the rukka to the

police station.

12. In the case „Mehraj Singh (L/Nk.) v.State of U.P.‟ (1994) 5

SCC 188, the Supreme Court has held :

XXXX XXXX XXXX "12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story...."

13. Earliest reporting of the occurrence with all its vivid detail

gives an assurance regarding truth of its version. Deliberate delay in

lodging the complaint/FIR is always fatal. It appears that the IO was

deliberately marking time with a view to give a particular shape to the

case.

14. Even the prosecution did not place complete reliance on PW-

1, Mukesh Kumar's deposition before the Court and got him declared

hostile when he denied the arrest of accused other than Pappal in his

presence. He also denied recovery of weapons of offence pursuant to the

disclosure statement of the accused in his presence. He did not support the

prosecution that in his supplementary statement (Mark 'A'), he had named

three more persons i.e. Dilip, Ved and Kamal.

15. The prosecution did not examine Pooran, other brother of the

deceased to corroborate the testimony of PW-1 (Mukesh Kumar). Nothing

emerged on record that PW-1 (Mukesh Kumar) on return to the house

informed any other family member including Pooran. The Investigating

Officer did not record statement of any family member of the deceased to

prove that on that day at about 08.00 P.M. PW-2 and PW-3 had taken the

deceased with them or that PW-1 had followed them. In his deposition,

PW-1 claimed that he had lifted the victim after the incident. However, for

the reasons known to the investigating agency, his blood stained clothes

were not seized to establish his presence at the spot. No blood was lifted

from the spot and the Investigating Officer only in the testimony

explained that due to rain it had washed away. No other witness deposed

in that regard. Considering the vital discrepancies in the deposition of

PW-1 and his unnatural behavior, we are of the view that no reliance can

be placed on his testimony to base conviction.

16. The prosecution had charge-sheeted Sandeep Kumar,

Vijay and Mohan Singh also along with the accused for committing

the murder in furtherance of their common intention. PW-1 had also

attributed specific role to them. However, on the same set of

evidence, the Trial Court did not believe the prosecution case and

acquitted them. The evidence against the appellants is verbatim

version which was taken into consideration by the Trial Court with

regard to the acquittal of Mohan, Vijay and Sandeep Kumar @

Pappal and therefore, the case of the appellants cannot be decided on

any other scale and should have been treated at par for giving benefit

of doubt.

17. The IO did not investigate the genesis of the quarrel among

the deceased and the accused and his associates which took place in the

morning that day. It is not certain as to who had sustained injuries in the

said occurrence. Ld.APP brought our attention to DD No.10A dated

04.09.1992 (Ex.PW-10/A) recorded by Smt.Raj Dulari, mother of the

accused Ajay at 08.50 P.M. at PS Shakarpur and urged that it established

his identity (of the accused Ajay) who had inflicted injuries to the

deceased in the said quarrel. PW-10 (Insp.Anil Sharma) had gone to

inquire the contents of DD No.10A (Ex.PW-10/A) but did not find any

person against whom the complaint was lodged. He returned to the police

station and made arrival entry vide DD No.17A. In our view, contents of

DD No.10A do not reveal anything about the incident. The prosecution

did not cite Smt.Raj Dulari as a witness to throw light as to how and under

what circumstances she had reported the matter to the police. It is not

clear from the contents of the DD as to when the quarrel took place. It

seems that this DD pertains to the quarrel that took place in the morning

of 04.09.1992.

18. The alleged recoveries of weapons of offence pursuant to the

disclosure statements of the accused have not been proved beyond

reasonable doubt. PW-1 (Mukesh Kumar) whose signatures appeared on

the seizure memos did not support the prosecution and denied recovery of

any such weapon in his presence. Moreover, no human blood was

detected on these weapons and they were not sent to Forensic Science

Laboratory (FSL) to find out if it contained blood of the deceased. These

weapons were not shown to the autopsy doctor to ascertain if injuries

found on the deceased were possible with those weapons.

19. PW-1 (Mukesh Kumar) in the cross-examination admitted

that he had filed document (Mark 'A') bearing his signatures at point 'A'

& 'B' at the time of consideration of bail before the Trial Court. However,

he gave an excuse that it was done under threat. Contents of document

mark 'A' reveal that the witness had exonerated the accused Pappal.

20. There is inconsistent version about the place where the

statement of the informant was recorded. The IO has deposed that it was

recorded at the LNJP Hospital whereas PW-1 stated that he had gone to

the police station and his statement (Ex.PW-1/A) was recorded there. The

prosecution has failed to reconcile the inconsistent versions.

21. In the light of above discussion, we are of the considered

view that the Trial Court was not justified to convict the appellants on the

scanty evidence produced before it. The impugned judgment of the Trial

Court cannot be sustained and is set aside. The appeal is allowed. The bail

bond and the surety bonds of the appellant, Vishwajit stand discharged.

(S.P.GARG) JUDGE

(SANJIV KHANNA) JUDGE JULY 13, 2012/tr