Jai Singh Rawat vs State (Nct Of Delhi)
2012 Latest Caselaw 1848 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       RESERVED ON : 9th February, 2012
%                                      DECIDED ON : 19th March, 2012

+                            Crl.A.401/1997

       JAI SINGH RAWAT                                   ....Appellant
                 Through :         Mr.Rajesh Khanna, Advocate.
                                   versus

       STATE (NCT OF DELHI)                                ....Respondent
                Through : Mr. Sanjay Lao, APP.

        CORAM:
        HON'BLE MR. JUSTICE S. RAVINDRA BHAT
        HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.

1. Appellant Jai Singh Rawat has preferred the present appeal against the judgement dated 30.08.1997 of Ld.Addl.Sessions Judge in SC No.33/1996 whereby he was convicted for committing offences punishable under Sections 302/307/34 IPC and was sentenced to undergo imprisonment for life for committing murder under Section 302 IPC. He was further sentenced to undergo imprisonment for life for attempt to commit murder under Section 307 IPC. Both the sentences were ordered to operate concurrently.

2. Criminal law was set into motion at around 12.55 P.M. on 03.06.1991 when DD No.12-A (Ex.PW-9/B) was recorded by SI Jeet Singh at police station Rajinder Nagar on the information of SI Wason Singh of PCR, received from one Vijay about a quarrel going on in house No. R-866, New Rajinder Nagar.

3. Investigation was assigned to SI Daryao Singh who along with Const.Fateh Singh, Const.Ramesh Chand and ASI Dhan Singh reached the spot. Soon thereafter, Insp.B.R.Sharma along with his staff also reached there. They noticed the lifeless body of Baby Kumar lying on the double bed in the drawing room. After coming to know that an injured (PW-1 Sudan Singh) had already been taken to RML Hospital in a PCR van, Insp.B.R.Sharma with his staff rushed there and recorded his statement. PW-1 disclosed that he was a domestic servant at the house of the deceased for the last about four months. On that day at about 1.00 P.M. two individuals aged 22/23 years knocked the door and Baby Kumar opened it. After entering, they talked to her and thereafter, started stabbing her with a sharp edged weapon. When he intervened, they also stabbed him; as a result he fell down there. He further said that the two assailants had visited the house earlier also along with one Manohar Lal 'Garwali' who used to work at United Coffee House, Connaught Place. He described the assailants who fled from the spot and claimed that he could indentify them if they were shown to him.

4. Insp.B.R.Sharma made an endorsement on the statement and sent the rukka through ASI Dhan Singh for registering the case. He seized the clothes of the injured at the hospital by seizure memo (Ex.PW-18/A). On return to the spot, he summoned the crime team and got the scene photographed. IO prepared the site plan; he lifted blood samples from various places i.e. the main entrance, bed room, drawing room etc.; seized bed-sheets, beds/mattresses; two pillows, two bed-sheets from the double bed and one chuni; one razor lying at the spot. The IO conducted inquest proceedings; he recorded statements of the concerned witnesses; prepared

brief facts and sent the dead body for post-mortem. From the room of the injured, one glass tumbler was also seized. IO sent the exhibits to CFSL and subsequently, collected its report. Since the injured had indicted the accused, the police set out to apprehend them and succeeded in arresting Manohar and Jai Singh on 07.06.1991. Pursuant to the disclosure statement (Ex.PW-7/A), the accused got recovered `8,000/- from his rented house at 9, Karawal Nagar, Delhi. During police remand, on 13.06.1991, the accused led the police team to another house at Karawal Nagar and got recovered `32,000/- cash along with other articles. Efforts were made to apprehend co-accused Suresh; however, the police were unsuccessful and after initiating proceedings under Section 82/83 Cr.P.C. he was declared proclaimed offender (PO). On completion of the investigation, a charge-sheet was filed against Jai Singh, Manohar and Suresh (PO) for committing offences punishable under Section 120B IPC; 302/392/307/394 read with Section 397 IPC, 120B IPC. The accused who had been arrested, were charged and were brought to trial.

5. To prove the charges, the prosecution examined twenty 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 denied their complicity in the crime and pleaded their false implication. The accused examined DW-1 S.K.Sobhti and DW- 2 R.K.Gauba in defence.

6. After considering the evidence and rival contentions of the parties, Addl.Sessions Judge convicted the accused (Jai Singh) only for committing the offences punishable under Sections 302/307/34 IPC and acquitted of all other charges. The co-accused Manohar was acquitted of

all the charges. Aggrieved by the said orders, the accused (Jai Singh) has filed the present appeal.

7. Learned counsel for the appellant assailed the findings of the Trial Court and strenuously urged that it did not appreciate the evidence in its true and proper perspective and fell into grave error in relying upon the uncorroborated testimony of PW-1 with whom the accused had no acquaintance. The accused is the victim of conspiracy hatched by PW-2 Vijay Handa, who is real perpetrator of crime and is the kinpin at whose behest the deceased was eliminated. Counsel urged that his conduct was unnatural and needle of suspicion pointed to him. The police failed to investigate this aspect. It failed to consider accused's specific plea that 'Jai Singh' working at United Coffee House was the real offender and his implication was due to mistaken identity. Counsel further argued that, in the absence of any test identification proceedings, identity of the assailants, particularly of the accused had not been established. The accused was not named in the FIR. It was imperative for the police to hold TIP proceedings for the accused's identification. Counsel further urged that on the same set of evidence, the Trial Court acquitted co- accused Manohar rejecting the police theory that he had ulterior motive to rob the deceased. Counsel further pointed out that Trial Court failed to consider vital improvements made by the prosecution witnesses. Though the accused was arrested on 05.06.1991 from Dehradun, alleged counsel, he was shown to have been arrested on 07.06.1991. No independent public witness was associated in the investigation.

8. On the other hand, Ld.Addl.PP supported the findings of the Trial Court and urged that testimony of an injured witness (Sudan Singh)

was categorical to prove the guilt of the accused. There was no reason for the Trial Court to disbelieve him as he sustained dangerous injuries and had no axe to grind to falsely implicate the accused. The accused had earlier visited him in the house one month prior to the occurrence and he had an ample opportunity to see and identify him. Failure of the police to conduct TIP was not fatal. Despite lengthy cross-examination, the accused failed to elicit any material contradiction in the testimonies of the prosecution witnesses for the Court to disbelieve them. The accused did not lead any reliable evidence to prove his arrest from Dehradun on 05.06.1991.

9. We have considered the submissions of the parties and have scrutinized the trial court record.

10. Before we proceed on merits, it is desirable to highlight that the homicidal death of the deceased Baby Kumar is not under challenge. The alleged co-conspirator Manohar was acquitted and the State did not challenge the acquittal. The accused (Jai Singh) was acquitted of charges under Secitons 392/394 read with Section 397 IPC. The deceased was a partner in United Coffee House, Connaught Place and resided at house No.R-866, New Rajinder Nagar, New Delhi with her minor son PW-4 Akash Kalra. PW-2 Vijay Kumar Handa was the Manager in the restaurant. PW-1 was domestic servant for doing household chores in the house.

11. The Trial Court heavily relied upon the testimony of PW-1 to base its conviction. We find no cogent reasons to deviate from this approach. Presence of PW-1 Sudan Singh at the deceased's residence was quite natural and probable (being a domestic servant of the deceased).

PW-4 Akash Kalra's assertion that on the day of incident, he left his mother and servant PW-1 (Sudan Singh) in the house while going to college at 9.30 A.M. remained unchallenged. PW-1 proved the version given to the police in Ex.PW-1/A about his employment as a domestic servant in house No.866, New Rajinder Nagar and elaborated that accused Manohar had brought him for employment through one Jai Singh (an employee at United Coffee House). PW-2 Vijay Handa corroborated PW- 1 and PW-4 that PW-1 was a domestic servant at the deceased's house.

12. PW-1 suffered dangerous injuries in the incident and was taken from the spot after the incident at 1.00 P.M. to RML Hospital at about 1.15 P.M. by HC Mohar Singh in a PCR van. PW-19 Dr.Rajeev Sood medically examined him and prepared the MLC Ex.PW-19/A. On local examination, three injuries detailed in the MLC were seen on his body. The shirt of the injured having corresponding cuts and smeared in blood was sealed and handed over to the local police. In the cross- examination, PW-19 stated that the details, particulars in the MLC were told to him by the injured as he was well oriented at that time. He fairly admitted that injured did not tell him the name of the assailant. PW-27 Dr.Shiv Kumar declared the injured fit for statement vide Ex.PW-27/A. On the MLC, PW-24 Dr.R.K.Jain described the injuries as 'dangerous' (Ex.PW-19/A at point 'A'). The injuries on his person lend assurance to his presence at the time and place of occurrence.

13. In the statement Ex.PW-1/A, PW-1 narrated graphic details how the incident occurred and the assailants inflicted injuries on the deceased and to him. He gave their detailed description and features of assailants numbering two and claimed to identify them, if shown to him.

Since the rukka was sent at about 3.30 P.M. from the hospital without undue delay, there was no time gap for any kind of manipulation.

14. PW-1 proved the version given to the police (Ex.PW-1/A), assigning specific role to the accused who along with co-accused Suresh (since PO) entered into the deceased's house and stabbed her. He further deposed that the accused Suresh stabbed him on his abdomen, neck, left arm, right side of the chest, both hands and ear with a razor blade (ustra- type) in the drawing room and Jai Singh stabbed on his abdomen with a knife. In the cross-examination, he reiterated that the police had met him at the hospital and his statement Ex.PW-1/A was recorded on his way there. He denied the suggestion that no such incident took place or that he concocted the statement at the instance of PW-2 Vijay Kumar Handa. In the cross-examination, it was not suggested that he had not sustained the injuries at the deceased's residence or they were self-inflicted. No motive was attributed to PW-1 by the accused for his false implication, in the absence of prior enmity or animosity. The injuries suffered by the deceased (Baby Kumar) were also not controverted in the cross. The witness was, however, confronted with his statement Ex.PW-1/A where he did not narrate certain facts deposed by him in his examination-in- chief. It is not unoften that improvements in an earlier version are made at the trial in order to give boost to the prosecution case. But that does detract from the essentially truthful and consistent account of the witness.

15. There are no cogent reasons to disbelieve the ocular testimony of this most natural star witness whose presence at the spot was not in doubt. The witness had sustained injuries at the hands of the accused in the occurrence; his testimony thus inspires confidence. In a

criminal trial, the testimony of an injured witness corroborated by the medical evidence by itself is a sufficient and sound basis, for convicting the accused. Certain improvements made by the witness in the Court are not fatal to reject the entire version given by him. The witness did not deviate from the core facts and named the accused causing fatal injuries to the deceased Baby Kumar and dangerous injuries to him. The improvements referred by the counsel are minor in nature and their exclusion would not affect the prosecution case based upon the unclinching eye-witness account.

16. Counsel faulted the impugned judgment primarily on the ground that it did not take notice that identification of accused before the Court was of no evidentiary value in the absence of test identification proceedings. Undoubtedly, the prosecution failed to move any application for conducting TIP proceedings after the arrest of the accused. But that circumstance itself is not fatal and ipso facto does not bring discredit to the claim of witness. The accused was not a stranger to PW-1 Sudan Singh and had even visited him about a month earlier along with co- accused Manohar. In his statement as PW-1, he categorically stated about his acquaintance with the accused and elaborated that both had paid a visit to him in the house; and had interaction with him and he offered them water and meals. These facts remained unchallenged in the cross- examination. Since the accused had visited him about a month earlier, the witness had sufficient opportunity to see and observe his distinctive features. Again, on the date of occurrence itself, the accused stayed in the house for sufficiently long and had direct confrontation with him. Identification of the accused before the Court, thus, cannot be faulted due

to omission to hold TIP. PW-1 elaborated that since he knew the accused by face only, he could not name him in Ex.PW-1/A. The crime was perpetrated in broad day-light. It is not a case that the witness had only a fleeting glimpse of the accused on a dark night or that the accused had covered his face.

17. In the case of Malkhansingh and ors. vs. State of M.P. (2003)5 Supreme Court Cases 746, The Supreme Court observed :

"7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In

appropriate cases it may accept the evidence of identification even without insisting on corroboration.

8. In Jadunath Singh v. State of U.P. the submission that absence of test identification parade in all cases is fatal, was repelled by this Court after exhaustive consideration of the authorities on the subject. That was a case where the witnesses had seen the accused over a period of time. The High Court had found that the witnesses were independent witnesses having no affinity with the deceased and entertained no animosity towards the appellant. They had claimed to have known the appellants for the last 6-7 years as they had been frequently visiting the town of Bewar. This Court noticed the observations in an earlier unreported decision of this Court in Parkash Chand Sogani v. State of Rajasthan wherein it was observed: (SCC pp. 522-23, para 11) "It is also the defence case that Shiv Lal did not know the appellant. But on a reading of the evidence of PW 7 it seems to us clear that Shiv Lal knew the appellant by sight. Though he made a mistake about his name by referring to him as Kailash Chandra, it was within the knowledge of Shiv Lal that the appellant was a brother of Manak Chand and he identified him as such. These circumstances are quite enough to show that the absence of the identification parade would not vitiate the evidence. A person, who is well known by sight as the brother of Manak Chand, even before the commission of the occurrence, need not be put before an identification parade in order to be marked out. We do not think that there is any justification for the contention that the absence of the identification parade or a mistake made as to his name, would be necessarily fatal to the prosecution case in the circumstances."

The Court concluded: (SCC pp. 523-24, para 15) "15. It seems to us that it has been clearly laid down by this Court in Parkash Chand Sogani v. State of Rajasthan that the absence of test identification in all cases is not fatal and if the accused person is well known by sight it would be waste of time to put him up for identification. Of course if the prosecution fails to hold an identification on the plea that the witnesses

already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case."

18. The evidence of an injured witness cannot be disbelieved without assigning cogent reasons. Mere contradictions/improvements on trivial matters cannot render an injured witness's deposition untrustworthy. The law on this aspect has been detailed in the latest judgment State of Uttar Pradesh vs. Naresh and ors. (2011) 4 Supreme Court Cases 324 as under :

"27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P.)"

19. Similarly in another case Abdul Sayed vs. State of Madhya Pradesh (2010) 10 Supreme Court Cases 259, Supreme Court laid down :

"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court.

Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) "28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that

evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below."

30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."

20. PW-2 Vijay Handa attempted to establish certain facts. However, comments of the Trial Court on his conduct are relevant to exclude his deposition from consideration. The Trial Court did not believe his testimony commenting :

"At the same time, in so far PW Vijay Handa is concerned, I am constrained to record that there are obvious grey areas about his role on the day of the incident. I do not propose to say more about him than to say that his conduct on the day of the incident has not been above board and has not been natural as would have been expected from a person who claims to be more than a mere employee at the Coffee House and himself admits of having a close proximity to the house of the deceased. What prevented him from knocking the door of the immediate neighbours for a telephone call? There is no evidence collected by the police that the telephone at the house of the deceased was out of order despite the explanation coming from the statement of PW Vijay Handa in the manner volunteered by him of his own. If PW Vijay Handa had seen the assailants escaping then his conduct at the crucial moments after the incident is such that he wanted the assailants to have a free run. As regards his professed presence at the house of the deceased soon after the incident and his alleged claim that he had seen the assailants escaping from the rear wall. PW1 Saudan Singh does not speak of the

presence of Vijay Handa in his statement Ex.PW1/A. He has been introduced by the police and, in fact, the higher probability is that he wanted himself to be introduced in the manner claimed by him to gloss over his unusual and unnatural conduct at the crucial moment. In so far as the identity of the accused Jai Singh or for that matter Suresh (PO) is concerned, the same cannot be fastened by relying upon the deposition of PW Vijay Handa. I am not inclined to accept PW2 Vijay Handa as an eye witness qua the assailants and trust his deposition as being reliable and trustworthy. However, excluding the deposition of PW2 as to the identity of the assailants the identity of the accused Jai Singh alone stands proved from the deposition of PW1."

21. PW-4 Akash Kalra corroborated PW-1 and testified that he was their domestic servant in the house and had sustained injuries in the incident. He did not raise any accusing finger against the conduct of PW-2 Vijay Handa and did not suspect his involvement in the incident.

22. Ocular version (of injured PW-1) is in consonance with medical evidence as well and there is no conflict between the two. MLC Ex.PW-19/A was prepared at about 1.15 P.M. by PW-19 Dr.Rajeev Sood when injured Sudan Singh was brought at RML Hospital by HC Mohar Singh of PCR with the alleged history of multiple stab wounds. On local examination, PW-19 found the following apparent injuries :

(1) One CIW over neck approximately 10 c.m. in size with active bleeding.

(2) There was one CIW 2 c.m. in size approximately and penetrating. (2 c.m. above right costal margine front of chest) (3) There was CIW on right side of chest approximately 15 c.m.

in size below clavical and was obliquely placed. This wound

was so deep that lung covering i.e. plura was exposed and bulging.

23. The Court cannot ignore the medical evidence which is also very vital in this case.

24. Counsel highlighted material irregularity in the trial itself as there was delay in delivering the special report to concerned Magistrate under Section 157 Cr.P.C. and the FIR was ante-timed. The accused, to buttress his plea examined DW-2 Mr.R.K.Gauba, the then Magistrate who recorded 10.13 hours time on the FIR seen by him (Ex.DW-2/A on the carbon copy of DW1/A). Apparently, there is delay in delivering the report to the concerned Magistrate after the case was registered at 3.45 P.M. by PW-9 SI Jeet Singh. The delay has not been explained by the prosecution. The Trial Court also commented on this aspect :

"From the preceding discussion and appraisal of the evidence before the court, I am inclined to hold that even if the IO were to be believed that there has been no delay in recording the FIR, there has been considerable and unexplained delay in the despatch of special report to the Ilaqua Magistrate and, although, the papers to the Autopsy Surgeon had been sent by 9 A.M. on 4.6.1991 but the story of the missing of `80,000/- have been introduced much later. Similarly, there is non compliance with the Rule 24 of Punjab Police Rules relating to the mode and manner of the registration of the cases. But, at the same time, I am of the considered view that the triple safeguards emanating from the provisions of Section 154, 157 and 174 of the Criminal Procedure Code and the provisions of Chapter 24 of the Police Rules are not to be used as exit routes for an otherwise unjustifiable acquittal."

25. We approve the observation of the Trial Court and are of the view that delay in sending the special report to the area Magistrate in the absence of any prejudice should not adversely affect the prosecution case.

In the case of Anil Rai vs. State of Bihar JT2001(6)SC515, Supreme Court observed:

"30. This provision is designed to keep the Magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and, if necessary, to give appropriate direction under Section 159 of the Code of Criminal Procedure. But where the F.I.R. is shown to have actually been recorded without delay and investigation started on the basis of the F.I.R., the delay in sending the copy of the report to the Magistrate cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable Pala Singh and Anr. v. State of PunjabMANU/SC/0199/1972 : AIR 1972 SC 2679.

Extraordinary delay in sending the copy of the F.I.R. to the Magistrate can be a circumstance to provide a legitimate basis for suspecting that the first information report was recorded at much later day than the stated day affording sufficient time to the prosecution to introduce improvement and embellishment by setting up a distorted version of the occurrence. The delay contemplated under Section157 of the Code of Criminal Procedure for doubting the authenticity of the F.I.R. is not every delay but only extraordinary and unexplained delay. However, in the absence of prejudice to the accused the omission by the police to submit the report does not vitiate the trial. This Court in Sarwan Singh and Ors. v. State of Punjab MANU/SC/0169/1976 : AIR 1976 SC 2304, held that delay in despatch of first information report by itself is not a circumstance which can throw out the prosecution's case in its entirety, particularly when it is found on facts that the prosecution had given a very cogent and reasonable explanation for the delay in despatch of the F.I.R."

26. Similar are the observations in another case Munshi Prasad and ors. vs. State of Bihar AIR2001SC3031:

"14. In support of the appeal, a further submission has been made pertaining to the First Information Report (FIR). On this score the appellants contended that delayed receipt of the FIR in the Court of the Chief Judicial Magistrate cannot but be viewed with suspicion. While it is true that Section 157 of the Code makes it obligator on the Officer Incharge of the Police Station to send a report of the information received to a Magistrate forthwith, but that does not mean an imply to denounce and discard an otherwise positive and trustworthy evidence on record. Technicality ought not to outweigh the course of justice - if the Court is otherwise convinced and has come to a conclusion as regards the truthfulness of the prosecution case, mere delay, which can otherwise be ascribed to be reasonable, would not by itself demolish the prosecution case. The decision of this Court in Shiv Ram and another vs. State of U.P.MANU/SC/0813/1998 : 1998CriLJ76 : 1998CriLJ76 lends support to the observations as above.

15. This Court further in State of Karnataka vs. Moin Patel and others MANU/SC/0796/1996 : [1996]2SCR919 : [1996]2SCR919 stated vis-a-vis the issue of delay in despatch of FIR as below:

"The matter can be viewed from another angle also. It has already been found by us that the prosecution case is that the FIR was promptly lodged at or about 1.30 AM and that the investigation started on the basis thereof is wholly reliable and acceptable. Judged in the context of the above facts the mere delay in despatch of the FIR - and for that matter in receipt thereof by the Magistrate - would not make the prosecution case suspect for as has been pointed out by a three Judge Bench of this Court in Pala Singh V. State of Punjab MANU/SC/0199/1972 : 1973CriLJ59, the relevant provision contained in Section 157 Cr.P.C. regarding forthwith dispatch of the report (FIR) is really designed to keep the Magistrate informed of the investigation of a cognizable offence so as to be able to control the investigation and if necessary to give proper direction under section 159 Cr.P.C. and therefore if in a given case it is found that FIR was recorded without delay

and the investigation started on that FIR then however,improper or objectionable the delayed receipt of the report by the Magistrate concerned, it cannot by itself justify the conclusion that the investigation was tainted and the prosecution unsupportable".

27. The accused had suspected Vijay Kumar Handa and his associates of complicity in the deceased's murder. However, no cogent evidence emerged from the record to arrive at such a conclusion. At whose behest the accused committed the heinous offence has remained a mystery and the Trial Court's observation is that „the police failed to investigate this aspect‟. But that does not absolve guilt of the accused. The Supreme Court in the case of „Ram Udgar Singh vs.State of Bihar‟ (2004) 10 SCC 443 held as under :

"That even if a major portion of evidence of a witness is found to be deficient, in case the residual is sufficient to prove the guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, conviction can be maintained. It is a duty of the Court to separate grain from chaff and appreciate in each case, as to what extent, the evidence is worthy of acceptance."

28. The accused did not attribute any motive to PW-1 Sudan Singh for identifying him as one of the participants in the infliction of the injuries to the deceased as well as to himself. He did not adduce any evidence to prove his presence at Dehradun on 05.06.1991. The accused failed to explain how and under what circumstances, he went to Dehradun and from which particular place, he was arrested and by whom. He did not show that on the day of incident, he was not present in Delhi. In the absence of any reliable evidence, the plea of alibi by the accused in his statement under Section 313 Cr.P.C. cannot be taken on its face value.

29. It has been consistently held that as a general rule the Court can and may act on a testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness.

30. In the case of Chittar Lal vs. State of Rajasthan (2003)6SCC397 Supreme Court has observed that :

"....The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). Administration of justice can be affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent, cases where the testimony of a single witness only could be available, in number of crimes the offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. This position has been settled by a series of decisions. The first decision which has become locus classicus is Mohd. Sugal Esa Mamasan Rer Alalah v. R.2 The Privy Council focused on the difference between English law where a number of statutes make conviction impermissible for certain categories of offences on the testimony of a single witness and Section 134 of the Evidence Act...."

31. In the present case, statement of PW-1 Sudan Singh was recorded on the day of incident without any delay, immediately after the investigation process was set into motion. He had no vengeance or grudge

against the accused to falsely implicate him. Therefore, the plea that PW- 1's testimony is doubtful has no merit. Since the occurrence was witnessed by PW-1 only there is no legal impediment to convict the accused on his testimony.

32. In the light of above discussion, we find no infirmity in the well reasoned judgment by which only the appellant was found guilty for committing the murder of the deceased Baby Kumar and attempting to murder of PW-1 Sudan Singh. The appellant is directed to surrender and serve the remainder of his sentence. For this purpose he shall appear before the Trial Court on 3rd April, 2012. The Registry shall transmit the Trial Court records forthwith to ensure compliance with the judgment. The appeal is dismissed, subject to compliance with above directions. The appeal lacks merit and consequently, is dismissed.

S.P.GARG) JUDGE

(S. RAVINDRA BHAT) JUDGE MARCH 19, 2012 tr