Amar & Anr vs State (Delhi Admn)
2012 Latest Caselaw 2218 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : 05th March, 2012
                                DECIDED ON : 30th March, 2012

+                         CRL.A.NO.380/1997

       AMAR & ANR.                           ....Appellants.
                Through : Mr.A.J.Bhambhani and Ms.Bhavita Modi,
                          Advocates.
                           Versus
       STATE (DELHI ADMN.)                   ....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 appellants Kishan and Amar have preferred the present appeal against the judgment dated 02.09.1997 and the order on sentence dated 04.09.1997 of the learned Additional Sessions Judge in Session Case No.65/1996 by which they were convicted for committing offences punishable under Section 302/34 IPC. The appellant Kishan was in addition convicted for the offence punishable under Section 27 Arms Act. They were sentenced to undergo imprisonment for life with a fine of `500/- each for committing offences punishable under Section 302/34 IPC. Kishan was further sentenced to undergo rigorous imprisonment for two years and to pay a fine of `250/- for committing offence under Section 27 Arms Act. Both the sentences were ordered to operate concurrently.

2. Criminal law was set into motion at around 10:30 P.M on 20.05.1993 when Daily Diary No.24 (Ex.PW11/A) was recorded by Ct.Balender Singh at the police post Gambri, PS Bhajanpura, on getting an information from Const.Renu that one Kapil had been stabbed with a churi near the house of one Atul Rehman, Gali No.3, Gautam Vihar.

3. Investigation was assigned to ASI Ram Kirpal who with Ct.Manbir reached the spot. On coming to know from the public present there that the injured had been taken to G.T.B.Hospital, they reached there and collected Kapil's MLC. He was unfit to make statement. PW-3 (Kanti Devi), Kapil's mother, in the statement (Ex.PW-3/A) stated to ASI Ram Kirpal that at about 10:30 P.M. her son Kapil had returned after watching a movie and she, with her daughter Neeraj (PW-1) was standing in the street outside their house. The accused Amar Singh S/o Harnath abused Kapil and inquired from him why he was standing there. When Kapil objected to the abuses, Amar Singh called his younger brother Kishan from the house and exhorted him to kill her son. She further stated that thereafter both Amar and Kishan dragged Kapil and took him to another street where Amar caught hold him and Kishan stabbed him with a knife. When she and her daughter Neeraj raised alarm, some people gathered there. Her brother-in-law Surender Kumar (PW-16) and neighbourer Karan Singh (PW-4) attempted to apprehend the acused, but they fled the spot.

4. ASI Ram Kripal (PW-17) made an endorsement on the statement and sent the rukka through Ct.Mohd.Akram for registering the case under Section 307/34 IPC. After coming to the spot he (ASI Ram Kripal) got the place of incident photographed; seized Kapil's blood

stained chappal; lifted blood, earth control and prepared necessary seizure memos. He also prepared a rough site plan and recorded the statements of witnesses conversant with the facts.

5. On 21.05.1993 at about 5:25 A.M. Duty Const. Sansar Singh (PW-13) at G.T.B.hospital conveyed Kapil's death at 4:50 A.M. The investigation was assigned to SI Kuldeep Singh who conducted inquest proceedings; prepared brief facts; moved an application for conducting post-mortem and recorded the statements of Kanti Devi (PW-3) and Surender Kumar (PW-16) regarding identification of the deceased. Dr.A.K.Tyagi (PW-2) conducted the post mortem and noted 28 injuries, in the form of incised wounds; stab wounds; abrasions and bruises of various dimensions. Since PW3 had indicted Amar and Kishan, the police set out to apprehend them. On 23.05.1993 both were arrested at traffic light point, Seelampur upon the identification of PW-16 (Surender Kumar). They were interrogated and their disclosure statements were recorded. Pursuant to the disclosure statement, they got recovered weapon of offence i.e.knife from their house No.K-16, Gautam Vihar. During the course of investigation, IO sent the exhibits to CFSL and subsequently collected its report; he got the scale site plan prepared. After completion of the investigations, a charge-sheet was filed against the appellants Amar and Kishan for committing the aforesaid offences and they were duly charged and brought to trial.

6. To prove the charges, the prosecution examined eighteen witnesses. 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 that

they have been falsely implicated in the case. They, however, did not examine any witness in defence.

7. After appreciating the evidence on record and considering the rival contentions of the parties, the learned Additional Sessions Judge convicted both the accused for the aforesaid offences.

8. Learned counsel for the appellants 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 ocular testimonies of PW-1 (Neeraj Kumari), PW-3 (Kanti Devi) and PW-16 (Surender Kumar) who were related to the deceased and whose presence at the spot was highly doubtful; their chances of deposing falsely could not be ruled out. The occurrence took place in Gali No.3 whereas PW-1 and PW-3 claimed their presence in Gali No.2 in front of their house. It was highly improbable for them, urged counsel, to reach to gali No.3 to witness the occurrence. PW-16 contradicted their version and deposed that they reached the spot within five minutes of his reaching there and the injured Kapil had already fallen in the drain by that time. The prosecution failed to explain, stressed counsel, why the accused would murder Kapil without any motive in the absence of any ill-will. PW-4 (Karan Singh) and PW-5 (Mohd.Akhtar) independent witnesses, fully demolished the prosecution case and they did not utter a word about the presence of PWs 1 and 3 at the spot. They did not attribute any role to the accused in the stabbing incident. There was no justification to prefer the testimonies of PWs 1 and 3 while ignoring the version spoken by PWs 4 and 5. The Trial Court, urged the counsel, itself noted/observed, number of material contradictions in the testimonies of PWs-1, 3 and 16 which

were sufficient to impeach their credibility. In DD No.24 (Ex.PW11/A) the accused were not named and the prosecution even failed to disclose who was the 'informant'. The witnesses gave inconsistent statements and their testimonies cannot be taken as gospel truth. Counsel challenged the recovery of a knife from the house of the accused in the absence of independent public witness. Moreover, as per FSL report, the blood group on the knife could not be detected.

9. On the other hand, learned APP supported the findings of the Trial Court and urged that the testimonies of PW-1, 3 and 16 were categorical to prove the guilt of the accused and their evidence cannot be thrown overboard merely because they were interested and partisan witnesses. Close relationship is not a factor to discard their otherwise cogent version. The accused's name reflected in the FIR lodged by PW-3 (Kanti Devi). PW-3 (Kanti Devi) narrated the sequence of the occurrence in details at the earliest. There was no possibility of fabrication of a false story during this short period. Learned APP further urged that both the accused, residing in the neighbourhood of the deceased, had absconded for three days and this circumstance also pointed an accusing finger against them. The recovery of knife pursuant to their disclosure statement connects them with commission of the crime.

10. We have considered the submissions made by the learned counsel for the parties and perused the Trial Court records.

11. Before we enter into the merits of the case, it is desirable to highlight that the homicidal death of Kapil is not under challenge. During the pendency of the appeal, the counsel apprised this Court that accused Amar Singh expired on 25.12.2011 and on verification the police

confirmed it. Both i.e. the deceased and the accused resided in Gali No.2, Gautam Vihar and were neighbourers. The incident took plalce in Gali No.3, Gautam Vihar. Only plea of the accused is that they were not the perpetrators of the crime.

12. The Trial Court heavily relied upon the testimonies of PW-1 (Neeraj Kumari), PW-3 (Kanti Devi) to base its conviction. We find no cogent reasons to deviate from this approach. To dispel the doubt of the accused about the presence of PWs 1 and 3 at the spot, veracity and authenticity of their evidence requires thorough scrutiny. PW-3 (Kanti Devi), mother of the deceased, claimed that she and her daughter Neeraj Kumari (PW-1) was present outside her house at about 10:30 P.M. when Kapil went there after watching a movie. She clarified that they were sitting in front of their house due to electricity failure. She further deposed that an altercation took place between the deceased and Kishan and her intervention pacified them. However, on the call of the accused Kishan, his brother Amar rushed there and both took the deceased to Gali No.3 and stabbed him there. She claimed to have followed them to Gali No.3 and witnessed the incident. In the cross-examination, nothing was suggested that the initial altercation between Kishan and the deceased had not taken place in Gali No.2 and she had not intervened to pacify them. The assertion of the witness that after the altercation in Gali No.2, the accused took the deceased to Gali No.3, a short distance from her house, remained unchallenged. Strangely, no suggestion was put to her in the cross-examination that none of the accused was present either in Gali No.2 or Gali No.3 at that time. The accused also did not suggest their presence at any other specific place at the time of occurrence. The

prosecution produced ample material to establish the presence of both PW-1 and PW-3 at both the places. The initial altercation took place just in front of the house of the witnesses. Their presence was thus quite natural and probable. It is not unusual for residents to sit outside the house on failure of electricity. When the accused Kishan called out his brother Amar and they took the deceased towards Gali No.3, first instinct of both PWs-1 and 3 was to follow them to avoid further confrontation. The stabbing incident occurred after a few minutes of the first altercation and that too a short distance from the house of the deceased. Natural conduct of these witnesses was to follow the accused to intervene in the event of any further possible quarrel. Presence of PWs 1 and 3 at the spot has been proved by other circumstances also. Material document is MLC (Ex.PW-15/A) which clearly records that the victim was brought to G.T.B.hospital by PW-1. The accused have not challenged the genuineness of the contents of Ex.PW-15/A.

13. Another crucial document pointing to her presence, at the spot is the statement (Ex.PW3/A) made to the police which formed the basis of registering the FIR under Sections 307/34 IPC. Her statement was recorded at about 11:40 P.M. soon after the incident occurred at 10:30 P.M. In her statement (Ex.PW-3/A) she named both the accused for inflicting multiple injuries to the deceased. She gave graphic details of the sequence of events and attributed specific roles to each accused. Only an eye-witness could narrate such minute details. PW-1 had no ulterior motive to speak falsely of her presence to implicate the accused. In the cross-examination, she fairly admitted that there was no enmity with the accused and they were on occasional visiting terms. The accused half-

heartedly alleged enmity but failed to disclose the bone of contention (if any) between the two families. Nothing is on record to show if relations were hostile between the two families or any serious quarrel had taken place earlier forcing the accused to retaliate and take the extreme step. PW-3 had no inkling that the accused would kill her son and she herself intervened to pacify the initial quarrel. She was not nurturing any grudge against the accused and for that reason she did not seek any assistance from the public after that altercation. Counsel underlined the need to draw an adverse inference because PW-3 did not inform the police about the incident, thus, making her presence doubtful. In our view, the omission in not informing the police is not sufficient to disbelieve her presence. PW-1 (Neeraj Kumari) clarified that she and her mother had not informed the police and someone else made a telephonic call to them. Since the anxiety of the mother was to take the injured to the hospital at the earliest, her omission to inform the police cannot be taken as unnatural conduct. The court can well understand her trauma at the time she saw her son being brutally stabbed. It is pertinent to note that the post-event conduct of a witness varies from person to person. It can not be a cast- iron reaction to be followed as a model by everyone witnessing such horrible event and unless the reaction demonstrated by an eye witness is so improbable or so inconceivable from any human being, it is unfair to dub his/her reaction as unnatural.

14. PW-1 (Neeraj Kumari) corroborated PW-3 (Kanti Devi) regarding her presence first in Gali No.2 at the time of initial altercation and subsequently in Gali No.3 where on the exhortation of accused Amar, the accused Kishan stabbed the deceased. She categorically stated that

she and her mother had followed the accused and the deceased while going towards Gali No.3 and on seeing Kishan inflicting knife blows to the deceased, they both had raised alarm. She further deposed that on hearing the noise, one Karan Singh (PW-4) residing in Gali No.3 and his uncle Surender Kumar (PW-16) reached there and inquired from them what happened. She narrated the occurrence to them and thereafter her mother and Karan Singh (PW-4) took Kapil to G.T.B.hospital. In cross- examination, the witness denied the suggestion that she was sleeping in the house at that time. No such suggestion was put to PW-3 (Kanti Devi) in her cross-examination. A sister whose brother sustains fatal blows is not expected to remain sleeping in her house. Again this witness too denied any enmity with the accused and categorically stated in the examination-in-chief itself that they were having good relations with them. In the cross-examination, she disclosed that they were having visiting terms and no quarrel even took place with the accused. There were no commercial or any other type of dealings between the two families giving rise to enmity.

15. This witness corroborated PW-3 about the altercation that took place in front of their house in Gali No.2 when the accused Amar abused Kapil. Elaborating further she deposed that on the asking of her mother not to indulge in the altercation, he (Kapil) went to wash hands at a water pump near the gate of the house assuring to return. She further elaborated that both the accused continued to stand opposite their house. Both the accused did not deny their presence at the spot and in her cross- examination her statement remained unchallenged.

16. The facts quoted above, in our view, establish the presence of PW-1 and PW-3 at both the stages of the incident firstly in Gali No.2 where the altercation took place and secondly in Gali No.3 where the incident of stabling occurred. Their presence at both the places was reasonable and natural.

17. Presence of PW-16 (Surender Kumar) at the place of occurrence, however, is doubtful because his name does not find mention in the MLC (Ex.PW-15/A). Neither he intervened in the incident nor informed the police. It is doubtful if he actually witnessed the incident which lasted only few minutes before his possible arrival on hearing the commotion. He made no attempt to save the deceased while he was being stabbed; he raised no alarm and did not report the matter to the police. All these circumstances rule out his presence at the spot at the time of stabbing incident and thus his testimony cannot be considered to believe the facts spoken by him.

18. The credible, straightforward and trustworthy evidence of PWs 1 and 3 cannot be rejected because of their relationship with the deceased. So far as the legal position for appreciating the evidence of such witnesses is concerned, it will suffice to mention that law was laid down by the Apex Court in the case of „Dilip Singh and others v. State of Punjab‟ AIR 1953 Supreme Court 364 in which it has been held as under :

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an

innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship, far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

19. True, PW-3 is the mother of the deceased but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of litigation. In the instant case, PW-3 had no interest in protecting the real culprit and falsely implicate the accused. It is not shown at all that PW-3 had any enmity or grudge against the accused.

20. Both PWs-1 and 3 identified the accused to be the perpetrators of the crime and assigned specific role to them. They gave graphic detail about the geneses of the altercation and subsequent stabbing in Gali No.3.

21. The testimony of both (PWs 1 and 3) had been subjected to searching cross-examination, but nothing has been brought on record to discredit the statement of either of eye-witness. No ill-will or animosity was attributed to them for falsely implicating the accused. Minor contradictions pointed out by the accused are bound to emerge and can safely be ignored as they do not go to the root of the case. The mere fact that the prosecution witnesses were the mother and sister of the deceased would not entitle the court to disbelieve their evidence unless there are

features which are indicative of concoction and especially when nothing had been brought out in their cross-examination to suggest that they are speaking to something which had not been witnessed by them.

22. Ocular testimony of PWs-1 and 3 has been corroborated by medical evidence and there is no conflict between the two.

23. The conduct of an accused in absconding when the police gets suspicious of his complicity in the offence is relevant under Section 8 of Evidence Act and might well be indicative to some extent of a guilty mind. In the present case, PW-3 had indicted both the accused in her statement (Ex.PW-3/A) at about 11:40 P.M. The police set out to apprehend them but they were not found in their house. They absconded for about three days and could be arrested only on 23.05.2003. The accused failed to explain their absence without any valid reason from their residence. They did not establish their presence during this period in any other specific place. Being neighbourers, it was expected from them to join the bereaved family and not to abscond. The 'Abscondance' after the crime can be considered an incriminating circumstance against them.

24. In the cross-examination, PW-3 (Kanti Devi) denied the accused's suggestion put to her. "It is incorrect to say that my son chased the accused Amar". This lends credence to prosecution version about the presence of the accused Amar at the spot allegedly chased by the deceased. The accused, however, did not elaborate the reason for the deceased to chase him.

25. As regards motive, it is well established that if the presecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive loses practically all relevance.

We find the ocular evidence led in support of the prosecution case is wholly reliable and see no reason to discard it. The submission, therefore, that the appellant had no motive for the commission of crime is not of any significance. In the present case, an altercation took place in Gali No.2 when the accused Kishan abused the deceased and he (deceased) resisted to that. Exchange of abuses triggered the altercation and that was apparent motive for the accused to commit the offence.

26. PW-4 (Karan Singh) and PW-5 (Mohd.Akhtar) did not opt to support the prosecution and turned hostile. According to prosecution both these witnesses in their statements recorded under Section 161 Cr.P.C. (mark 'A'), had supported the prosecution but staged a volte face during their examination before the court. In our view, even if the testimonies of PW-4 and Pw-5 are excluded, the prosecution has led sufficient evidence to prove the guilt of the accused and their turning hostile is not a factor to disbelieve the otherwise reliable evidence of remaining witnesses.

27. No adverse inference can be drawn against the prosecution for non-examination of the informant. DD No.24 (Ex.PW-11/A) does not disclose the name of the informant. PWs 1 and 3 themselves did not inform the police. Hence non-examination of the informant is not fatal to the prosecution case. The accused has not shown how evidence of the informant was crucial. It is well known that police machinery can be put into motion by any one.

28. Recovery of knife (Ex.P-1) pursuant to the disclosure statement of the accused has not been proved beyond reasonable doubt and this cannot be taken as an incriminating circumstance. Since no blood group, either of the accused or the deceased was detected on the knife

(Ex.P-1) in the FSL report, it cannot be said with certainty that it was used in the incident. The accused were not expected to retain the highly incriminating piece of evidence at their residence even after three days of the incident. The prosecution's failure to prove the circumstance does not weaken its case because the accused had absconded from the spot and only they were having special knowledge where they had concealed the actual weapon used in the crime. Non-recovery of weapon of offence is not always fatal to the prosecution case.

29. In the light of the discussion made above, we find no merit in the appeal. It is therefore, dismissed.

30. Appellant-Amar Singh has already expired. Appellant- Kishan is directed to surrender and serve the remainder of his sentence. For this purpose, he shall appear before the Trial Court on 18th April, 2012.

31. The Registry shall transmit the Trial Court records forthwith to ensure compliance with the judgment.

32. The appeal is dismissed subject to the compliance with above directions. SHO of concerned police station shall intimate the accused Kishan to surrender in the Trial Court on 18th April, 2012.

(S.P.GARG) JUDGE

(S. RAVINDRA BHAT) JUDGE MARCH 30, 2012/sa