Suresh Pehlwan @ Suresh Basoya And ... vs State Of Delhi
2012 Latest Caselaw 6454 Del

               THE HIGH COURT OF DELHI AT NEW DELHI


%                               Judgment delivered on: 05.11.2012

+      CRL. A 72/2009

SURESH PEHLWAN
@ SURESH BASOYA AND ANR                                  ... Appellants

                                   - versus -

STATE OF DELHI                                           ... Respondent

                                      AND

+      CRL. A 73/2009

DALIP KUMAR @ GUDAR                                      ... Appellant

                                   - versus -
THE STATE                                                ... Respondent

Advocates who appeared in this case:
For the Appellants        : Mr Ajay Verma
For the Respondent        : Ms Richa Kapur

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MS JUSTICE VEENA BIRBAL

                                 JUDGMENT

BADAR DURREZ AHMED, J

1. These two appeals are being decided together as they are directed against

the same judgment and order on the point of sentence. The judgment dated

11.11.2008 delivered by the Additional Sessions Judge-01, South, Patiala House

Courts, New Delhi in Sessions Case No. 203/2006 arising out of FIR 225/2003

registered at Police Station Kotla Mubarak Pur, under Sections 302/120B/34

IPC and Sections 25/27 of the Arms Act, 1959 is under challenge in these

appeals.

2. By virtue of the impugned judgment dated 11.11.2008, the appellants

Suresh Pehlwan @ Suresh Basoya, Sushil Choudhary @ Sushil Pehlwan

(appellants in Crl. A. No. 72/2009) and Dalip Kumar @ Gudar (appellant in Crl.

A. No. 73/2009) have been convicted under Section 302/34 IPC. Appellant

Suresh Pehlwan and Sushil Choudhary have also been convicted under Section

25 of the Arms Act, 1959. Insofar as the accused Lekhraj is concerned, he was

acquitted of the charges under Sections 120B/302/34 IPC. The present

appellants had also been charged under Section 120B, but they have also been

acquitted under that Section but have been convicted, as mentioned above,

under Section 302 read with Section 34 IPC. The appellants are also impugning

the order on the point of sentence which was pronounced on 19.11.2008,

whereby the three appellants were sentenced to life imprisonment for

commission of the offence punishable under Section 302/34 IPC and they were

also directed to pay a fine of ` 10,000/- each, in default whereof, they were

required to undergo simple imprisonment for nine months each. Insofar as the

appellants Suresh Pehlwan @ Suresh Basoya, Sushil Choudhary @ Sushil

Pehlwan are concerned, they were sentenced to undergo rigorous imprisonment

for two years each with a fine of ` 1,000/- each, in default whereof, they were

required to undergo additional simple imprisonment for two months. The

sentences of imprisonment awarded to Suresh Pehlwan @ Suresh Basoya,

Sushil Choudhary @ Sushil Pehlwan for the offences under the IPC and the

Arms Act were directed to run concurrently.

3. The charges were framed on 24.11.2003. The four accused, namely,

Suresh Pehlwan, Dalip Kumar, Sushil Choudhary and Lekhraj were, inter alia,

charged as under:-

"That on 31.5.03 at about 12 noon at the corner of house no. 59 and house no. 47 Housing Society NDMC Part I near Mother Dairy ,New Delhi within the jurisdiction of PS K.M. Pur in prosecution of the common object of the conspiracy entered by you to commit the murder of deceased Surinder Gupta committed murder of Surinder Gupta by firing two shots by Sushil Pahlwan with the country made pistol and giving number of knives blows by accused Suresh Pahlwan and thereby committed an offence punishable under section 302 read with 120 B of UPC and within my cognizance."

Sushil Choudhary @ Sushil Pehlwan was separately charged under Section

120B IPC as also under Sections 25 and 27 of the Arms Act. Suresh Pehlwan

was similarly also charged of the offence punishable under Section 120B IPC

and the offence punishable under Sections 25 and 27 of the Arms Act, 1959.

The appellant Dalip Kumar was also separately charged in respect of the

offence punishable under Section 120B IPC. Insofar as the accused Lekhraj is

concerned, he was also separately charged of the offence punishable under

Section 120B IPC and he was regarded as the mastermind of the conspiracy.

4. All the accused pleaded not guilty to the charges and claimed trial. The

prosecution examined as many as 25 witnesses. Thereafter, the statements of

the accused under Section 313 of the Criminal Procedure Code, 1973 were

recorded and the defence produced one witness DW1 Raj Kumar. After

considering the evidence on record and the arguments advanced by the

prosecution as well as by the defence counsel, the learned Additional Sessions

Judge came to the conclusion that the case of conspiracy under Section 120B

IPC was not made out at all. As a result, the accused Lekhraj was acquitted in

entirety inasmuch as he was not present at the scene of the crime. The other

three accused, who are the appellants herein, were all allegedly present at the

scene of the crime and participated in committing the murder of deceased

Surinder Gupta. Consequently, the learned Additional Sessions Judge came to

the conclusion that the three appellants were guilty of the offence punishable

under Section 302 read with Section 34 IPC. They were, however, acquitted of

the charge under Section 120B IPC. They were also acquitted of the charge

under Section 27 of the Arms Act. However, Suresh Pehlwan and Sushil

Choudhary were convicted under Section 25 of the Arms Act. All the three

appellants were awarded the punishments as already indicated above.

5. The prosecution case is that on 31.05.2003 at about 12 noon when the

deceased Surinder Gupta was going somewhere in his vehicle, Suresh Pehlwan,

Sushil Choudhary and Dalip Kumar had a heated conversation with the

deceased Surinder Gupta on the question of some money transaction and they

dragged him out of the car. It is then the prosecution case that Sushil

Choudhary took out a country-made pistol from beneath his shirt and fired twice

at Surinder Kumar Gupta, due to which Surinder Kumar Gupta fell down.

Thereupon, Dalip Kumar caught hold of Surinder Kumar Gupta and Suresh

Pehlwan assaulted Surinder Kumar Gupta and gave him multiple knife blows.

All the three appellants, according to the prosecution, left Surinder Gupta on the

road, thinking that he was dead. Thereafter, people arrived at the scene and the

injured Surinder Kumar Gupta was taken to hospital (All India Institute of

Medical Sciences), where he later succumbed to his injuries. It is the case for

the prosecution that the injured Surinder Gupta was taken to the All India

Institute of Medical Sciences in his own Honda car, which was driven by PW1

Ashok Chowdhary, who was accompanied, in the front seat, by DW1 Raj

Kumar. It is also the prosecution case that PW14 Subodh Kumar saw the

incident and was an eyewitness of the incident. It may be pointed out, at the

outset, that the entire case revolves around the testimonies of PW14 Subodh

Kumar, PW1 Ashok Chowdhary and DW1 Raj Kumar.

6. Police action in the case began with the duty constable Narender Kumar

giving the information on 31.05.2003 at about 12:45 pm vide DD No. 8-A that

one Surinder Gupta, son of Rajpal Gupta, resident of 47, Housing Society,

NDSE-I, New Delhi was admitted to hospital after being shot. Sub-Inspector

Anil Kumar along with Constable Kishore Kumar went to the hospital and

obtained the MLC Exhibit PW15/A in respect of the injured Surinder Kumar

Gupta in which the doctor had opined that the nature of injuries was dangerous

and there were fire arm injuries as well as stab injuries and the doctor had also

stated that the injured was unfit for statement and that he had been admitted to

the casualty ward.

7. In the hospital, PW20 Sub-Inspector Anil Kumar recorded the statement

of the complainant PW1 Ashok Kumar Chowdhary, who stated that at about 12

noon he was in his office at H-58/59, South Extension Part-I. At that point of

time, there was a hue and cry outside that Surinder Gupta had been shot. He

further stated that Surinder Gupta resided in front of his building in flat No. 47,

Housing Society, NDSE-I. He further stated that he knew Surinder Gupta well.

On hearing the voices outside, Ashok Chowdhary immediately went out and he

found that about 100 feet away from his office Surinder Gupta was lying injured

on the road and that he was bleeding from his head and body. He further stated

that Surinder Gupta's car (Honda City No. DL5CP 0001) was also parked there.

He further stated that he immediately ran towards Surinder Gupta and after

reaching he spot with the help of about 4-5 persons, he lifted Surinder Gupta

and placed him in Surinder Gupta's car in the rear seat. Thereafter, one Raj

Kumar, who was known to Ashok Chowdhary, who was with him in his office,

sat beside Ashok Chowdhary, who drove the said car to AIIMS. This statement

(Exhibit PW5/A) was sent along with the ruqqa Exhibit PW20/A by the said

PW20 Sub-Inspector Anil Kumar to the police station which was recorded as

DD 8-A (Exhibit PW9/A) on the basis of which the FIR No. 225/2003 (Exhibit

PW9/B) was registered.

8. Thereafter, the said PW20 Sub-Inspector Anil Kumar went to the spot

where he found one bullet having blood stains on it lying at the spot, which was

seized by him vide memo Exhibit PW17/A. He also lifted blood stained earth

and sample of earth control vide memos Exhibit PW17/B and Exhibit PW17/C.

It is also the prosecution case that the said PW20 SI Anil Kumar recorded the

statements of PW7 Narpath Singh and PW6 Om Prakash Gupta, who were

present at the spot. The statement of PW18 Vinod Gupta (brother of the injured

Surinder Gupta) was also recorded. The statement of PW14 Subodh Kumar

was also recorded by Sub-Inspector Anil Kumar at the spot.

9. Subsequently, Surinder Gupta died at the All India Institute of Medical

Sciences, after which the postmortem examination was conducted and the dead

body was handed over to the legal heirs of the deceased. Thereafter, on

02.06.2003 onwards, the investigation of the case was taken over by PW25

Inspector N. P. Singh, Station House Officer of the police station Kotla

Mubarakpur.

10. PW16 Dr Chitranjan Behra conducted the postmortem examination of the

deceased Surinder Gupta. He found the following ante mortem injuries on the

body of the deceased:-

"1. Firearm entry wound of size 1cm x 1cm inverted margin, with abrassion collar of radius 0.8 cm and tattooing around it, present over back of the body, 0.5 cm right to midline, 118 cm above right heel and 21 cm below nape of neck. On cutting over the wound, a tract was seen which gone through postero- anteriorly straight piercing underlying soft tissues, back muscles, vertebral column at T7-T-8 level fracturing it associated with haematoma and lacerating spinal cord at same level, then entered to body cavity piercing the diaphragm in midline tearing the venae cave and descending aorta and finally bullet lodged in diaphragm.

2. Firearm entry wound of size 2cm x 1cm inverted margin with tattooing in an area 8cm x 8cm around it, present over upper 1/3rd of left forearm on dorso -lateral side. On cutting over the wound a tract was seen which gone through lateral to medial in obliquely - downward direction piercing the underlying soft tissues, muscles, fracturing both radius and ulna at upper 1/3rd associated with haematoma, then exit

through a wound of size 2.8 cm x 1.8 cm inverted margin, present over medial side of left forearm at its upper 1/3rd.

3. Stitched wound of length 3 cm present over scalp in ® postero - parietal region, 1-5 cm right lateral to midline, obliquely placed. Diffuse subscalp haematoma present below the wound associated with underlying depressed fracture of skull bone of size 1cm x 1cm. A tear in duramater of length 0.5 cm seen below the depressed fracture.

4. Incised looking lacerated wound of size 4.5 cm x 1cm present, left parieto - occipital region, 2cm lateral to midline, obliquely placed and was bone deep associated with subscalp haematoma.

5. Stab wound of size 3cm x 0.5 cm with blood oozing out from it, bone deep in direction of downward and medially, present over left anterior shoulder, 5cm below tip of left shoulder.

6. Stab wound of size 2cm x 1cm present over left upper chest, 11 cm above left nipple, 13.5 cm left to midline. On cutting over the wound, a tract was seen which was cavity deep in direction of downward and medially, piercing underneath tissues, muscles, cutting Ist and 2nd anterior ribs, then entered to thoracic cavity, then piercing left middle part of lung, collapsing it associated with haematoma in thoracic cavity about 1 litre and a cut (Superficial) of size 0.5 cm was seen over left lateral ventricular wall of heart.

7. Incised wound of size 3cm x 0.5 cm, bone deep associated with haematoma present over left clavicular region, 9cm lateral to midline, 15cm above left nipple.

8. Incised wound of size 3cm x 0.5 cm, muscle deep associated with haematoma present over suprasternal notch, 8cm below chin.

9. Incised wound of size 1.8 cm x 0.5 cm, muscle deep, associated with haematoma present over upper left chest, 2cm left to midline, 9cm below suprasternal notch.

10. Incised wound of size 1.8cm x 0.5 cm, bone deep associated with haematoma, present over left cheek, 5cm medial to tragus left ear, 10 cm left to midline, and 5.5 cm below lateral margin of left eyebrow.

11. Incised wound of size 3cm x 0.5 cm, muscle deep, associated with blood clot, horizontally placed over left internal neck, just below the left angle of mandible.

12. Incised wound of size 2.5 cm x. 0.5 cm, muscle deep, associated with blood clot, present over middle of left neck, 5cm lateral to midline, 5cm below left angle of mandible.

13. Incised wound of size 1.8 cm x 0.5 cm, muscle deep, associated with haematoma present over left side of neck in middle, 10 cm lateral to midline, 4cm below left angle of mandible.

14. Incised wound of size 1.5 cm x 0.5 cm over left side chin, bone deep, associated with haematoma.

15. Incised wound of size 2 cm x 0.5 cm. present over right upper neck 5cm right to midline, 4 cm below and right to right chin."

According to PW16 Dr Chitranjan Behra, the cause of death was as under:-

"Cause of death in this case was shock due to above mentioned, ante mortem injuries. All injuries were collectively sufficient to cause death in ordinary course of nature, however, injury no. 1 and 6 were individually sufficient to cause death in ordinary course of nature. Injury no. 1 and 2 caused by firearm, injury no. 3 and 4 caused by blunt force and rest of injuries were caused by sharp edged weapons. All injuries are ante mortem in nature. Time since death was consistent with hospital record."

It should also be pointed out that the said Surinder Gupta was declared dead on

31.05.2003 at 3:30 pm. The postmortem report is Exhibit PW16/A.

11. On 02.06.2003, the accused Sushil Choudhary, Suresh Pehlwan and Dalip

Kumar were arrested by the police from the bus stand at Sector-27, Noida on

the pointing out of the witness Vinod Kumar Gupta (PW18). It is alleged that

they made disclosure statements and that on the basis of the disclosure

statement made by Sushil Choudhary (Exhibit PW14/G), one country made

pistol (Exhibit P-1) was recovered at his instance from beneath the bushes in the

'Chick House Park' near INA Complex. The sketch of the said country made

pistol Exhibit P-1 is Exhibit PW14/H.

12. Suresh Pehlwan is also alleged to have made a disclosure statement

Exhibit PW14/M pursuant to which recovery of a knife is said to have been

made from the sand under the ganda nallah pull pilanji. The sketch of the said

knife is Exhibit PW24/C. There was a supplementary disclosure statement of

04.06.2003 (Exhibit PW24/A) and the recovery of the knife was allegedly made

on the same day.

13. We have already indicated that after completion of the investigation, the

challan was filed and the charges were framed by the Trial Court and the matter

proceeded to trial. The result of the trial has also been indicated above.

14. The learned counsel appearing on behalf of the appellants submitted that

the only witness who tends to support the prosecution case is PW14 Subodh

Kumar. According to the learned counsel for the appellants, this witness is not

an eyewitness at all. His conduct was unnatural and his antecedents were also

suspect. Consequently, it was submitted that he cannot be relied upon at all. It

was submitted that PW14 allegedly knew the deceased Surinder Gupta and was

an alleged chance witness. Yet, when the incident took place, he did not come

forward to help Surinder Gupta at all nor did he raise any alarm or call for help

or go to the police station. He merely stood there and saw the crime being

committed. After the assailants had left, he is alleged to have helped PW1

Ashok Choudhary in lifting the injured Surinder Gupta onto the car. Thereafter,

he is alleged to have left on foot to inform the father of the injured Surinder

Gupta, who resided at their old house at Bhogal, which was about 15-20

minutes away (walking distance). Apparently, he stopped on the way at Bhanu

Garments, which was a shop belonging to Surinder Gupta's brother. But, when,

according to him, he reached the said shop, they were aware of the incident.

Yet, the said PW14 proceeds towards Bhogal. This conduct of the said PW14

Subodh Kumar has been alleged to be unnatural by the learned counsel for the

appellants and it is because of this that they seek to discredit and besmirch his

testimony.

15. It was also contended by the learned counsel for the appellants that

actually it is only PW1 Ashok Choudhary and DW1 Raj Kumar, who were the

eye witnesses of the incident, who ought to be believed and not PW14 Subodh

Kumar. It was contended by the learned counsel for the appellants that PW1

Ashok Coudhary is the person who drove the vehicle carrying the injured

Surinder Gupta in the rear seat to the hospital. There is no denying that this fact

has been established beyond doubt. Therefore, the presence of PW1 Ashok

Choudhary cannot be doubted and consequently, his deposition ought to be

believed. According to the learned counsel for the appellants, PW1 Ashok

Choudhary categorically stated that he had not seen Subodh Kumar at the spot

and that he (PW1 Ashok Choudhary) and one DW1 Raj Kumar had removed

Surinder Gupta to AIIMS. According to PW1 Ashok Choudhary, Surinder

Gupta was assaulted by three individuals whom he could recognize if brought

before him. Importantly, PW1 Ashok Choudhary categorically stated that the

three assailants were not present in Court on the date of his deposition meaning

thereby that the three appellants who were accused were not the assailants.

16. DW1 Raj Kumar's testimony also supports the testimony of PW1 Ashok

Choudhary. Therefore, according to the learned counsel for the appellants,

PW1 Ashok Choudhary is a credible eyewitness, whereas PW14 Subodh Kumar

is a 'planted eyewitness'. It was further contended that PW14 Subodh Kumar

did not go to the hospital with the injured and to cover this up the story of going

to Bhogal was introduced. It was further contended that as per the evidence of

PW9 Head Constable Swaroop Singh and PW20 Sub-Inspector Anil Kumar, the

distance from the place of occurrence and the police station (Kotla Mubarak

Pur) was just 1 to 1-1/2 kilometers. Yet, PW14 did not go to the police station

to inform the police about the incident. It was further submitted by the learned

counsel for the appellants that PW8 Bhanu Gupta, who is the son of the

deceased Surinder Gupta, did not state in his testimony that PW14 Subodh

Kumar had come to his shop after the incident.

17. It was also argued by the learned counsel for the appellants that there is a

discrepancy with regard to the time of recording of the statement of PW14

Subodh Kumar. According to PW20 sub-Inspector Anil Kumar, the statement

of PW14 Subodh Kumar was recorded at the spot. But, PW20 Anil Kumar, as

per his own statement, reached the spot at around 2:30 or 3 pm. PW14 Subodh

Kumar in his testimony stated that he returned to the spot between 1 to 1:30 pm

and that between 1:30 to 2 pm he had told the police, for the first time, about

having witnessed the occurrence. He stated that he left the spot after about 15-

20 minutes. Thus, according to the learned counsel for the appellants, PW14

Subodh Kumar's statement could not have been recorded between 1:30 to 2 pm

inasmuch as PW20 Sub-Inspector Anil Kumar had arrived at the spot around

2:30 or 3 pm, by which time, PW14 Subodh Kumar had left the spot. Therefore,

the learned counsel for the appellants submitted that not much credence could

be attached to the testimony of PW14 Subodh Kumar. It was also contended

that PW14 being a chance witness, his testimony had to be examined with care

and caution particularly as PW14 Subodh Kumar was known to the injured

Surinder Gupta being an ex part-time employee of his. For the proposition that

the testimonies of chance witnesses, who were related or friends ought to be

viewed with suspicion and at least with care and caution, the learned counsel for

the appellants placed reliance on the following three decisions of the Supreme

Court:-

       (i)     Bahal Singh v. State of Haryana: AIR 1976 SC 2032;

       (ii)    Shankar Lal v. State of Rajasthan: (2004) 10 SCC 632; and

(iii) Jarnail Singh v. State of Punjab: (2009) 9 SCC 719.

18. In Bahal Singh (supra), the Supreme Court observed as under:-

"If by coincidence or chance a person happens to be at the place of occurrence at the time it is taking place, he is called a chance witness. And if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused then his being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible or unbelievable but does require cautious and close scrutiny."

19. In Shankar Lal (supra), the Supreme Court observed as under:-

"In this background if we appreciate the evidence of PW-6, we notice the fact that he is purely a chance witness whose presence at the place of the incident is highly doubtful. His conduct too seems to be unnatural in not informing anyone else in the village until he met Khyali Ram at the village square."

20. In Jarnail Singh (supra), the Supreme Court observed as under:-

"14. The Court further explained that the expression 'chance witness' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country like India where people are less formal and more casual, at any rate in the matter of explaining their presence.

15. The evidence of a chance witness required a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence Satbir v. Surat Singh: (1997) 4 SCC 192; Harjinder Singh v. State of Gujarat: (2004) 11 SCC 253; Acharaparambath Pradeepan and Anr. v. State of Kerala: (2006) 13 SCC 643; and Sarvesh Narain Shukla v. Daroga Singh and Ors. (2007) 13 SCC 360. Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded vide Shankarlal v. State of Rajasthan: (2004) 10 SCC 632. Conduct of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident. Vide Thangaiya v. State of Tamil Nadu: (2005) 9 SCC 650."

21. On going through the aforesaid three decisions of the Supreme Court, it is

apparent that if the chance witness happens to be a relative or friend of the

victim or inimically disposed towards the accused, then such a chance witness

has to be viewed with suspicion. At the same time, however, the Supreme

Court cautioned that such a piece of evidence was not necessarily incredible or

unbelievable but required cautious and close scrutiny. In the present case PW14

Subodh Kumar was not a relative of Surinder Gupta nor was he a friend of his,

nor was PW14 Subodh Kumar inimically disposed towards the appellants, at

least, there is no evidence of this. Thus, we feel that there is no occasion in

viewing the testimony of PW14 Subodh Kumar with suspicion. Of course,

PW14 Subodh Kumar's testimony has to be considered with caution and must

pass close scrutiny before a conviction can be founded upon it.

22. In Shankar Lal (supra), the Supreme Court, on the facts of the case

before it, came to the conclusion that the evidence of PW6 in that case was not

reliable inasmuch as his presence at the place of the incident was highly

doubtful and that his conduct was also unnatural in not informing anyone else in

the village until he met Khyali Ram at the village square. If we consider this in

the backdrop of the factual matrix of the present case, we find that PW14

Subodh Kumar, according to his testimony, had gone to inform the family of

Surinder Gupta about the incident. On the way, he had stopped at Bhanu

Garments and then proceeded to Surinder Gupta's old house at Bhogal. It is

another matter that when Subodh Kumar reached Bhanu Garments, the

information of the incident had already been received there. What is to be seen

is what the chance witness did. In this case, PW14 Subodh Kumar's first

reaction was to go and inform the family members and not to keep the

information with himself. Therefore, PW14 Subodh Kumar's testimony cannot

be discarded on this ground.

23. Insofar as the decision in Jarnail Singh (supra) is concerned, we find

that the Supreme Court itself noticed that it is quite unsuitable to use the

expression 'chance witness' in a country like India where the people are less

formal and more casual. As mentioned above, the Supreme Court reiterated the

legal principle that the evidence of a chance witness requires cautious and close

scrutiny and the chance witness must explain his presence at the place of

occurrence. It was also pointed out that the conduct of the chance witness

subsequent to the incident may also be taken into consideration. There is no

denying these legal principles but the question is whether the testimony of

PW14 Subodh Kumar passes the test of cautious and close scrutiny and whether

PW14 Subodh Kumar has adequately explained his presence at the place of the

occurrence as also whether his conduct has been natural or not. These are

aspects which we shall examine subsequently in this decision when we consider

the testimony of PW1 in detail.

24. The learned counsel for the appellants also raised the point of an extra-

judicial confession having allegedly been made by Sushil Pehlwan to PW18

Vinod Gupta (brother of the deceased Surinder Gupta). However, we need not

spend any time on this aspect of the matter. This is so because it is doubtful that

Sushil Pehlwan could have made the confession to PW18 Vinod Gupta in the

manner alleged by the prosecution. We are, therefore, not placing any reliance

on the so-called extra-judicial confession made by Sushil Pehlwan to PW18

Vinod Gupta and, therefore, it is not necessary for us to examine the

submissions made by the learned counsel for the appellants on this aspect of the

matter nor is it necessary for us to examine in detail the decision of the Supreme

Court in State of Rajasthan v. Raja Ram: AIR 2003 SC 3601 (1), relating to

extra-judicial confession.

25. It was then contended by the learned counsel for the appellants that the

present case is a peculiar one because as many as 5 witnesses were chance

witnesses. According to the appellants PW5 Raj Pal Gupta (who is the father of

the deceased Surinder Gupta) had overheard the accused talking about their

conspiracy. But, this is no longer relevant inasmuch as the trial court has

already acquitted all the accused of the charge under Section 120 B. Similar is

the fate of the conversation allegedly overheard by PW13 Viresh Kumar. With

regard to PW14 Subodh Kumar being a chance witness, we have already given

our observations above and would discuss this in greater detail, when we are

discussing the testimony of PW14 Subodh Kumar. As regards PW18, Vinod

Kumar Gupta, the allegation that he received the extra-judicial confession by

chance, is also not really relevant in view of the fact that we are not placing any

reliance on the so-called extra-judicial confession. The last aspect of chance

which the learned counsel for the appellants contended was that the accused

were also arrested by chance. Nothing much turns on this. Thus, the

submission of the learned counsel for the appellants regarding five instances of

chance being involved in this case does not turn the case either way.

26. The learned counsel for the appellants then argued on the question of

recoveries. It was argued that the recoveries of the katta (Exhibit P-1) in the

park near INA complex was from an area of public access and, therefore, the

said recovery cannot be foisted upon Sushil Choudhary. It was also contended

that the recovery of the knife allegedly at the joint instance of Suresh Pehlwan

and Dalip Kumar from beneath the ganda nallah pull pilanji was also from an

area of public access and thoroughfare and, therefore, the same cannot be linked

with the appellants. Insofar as the recovery of clothes Exhibit PW14/F is

concerned, it was submitted that the same do not, in any manner, advance the

case of the prosecution.

27. It was also submitted that in any event, the katta (Exhibit P-1) has not

been connected with the offence. This would be apparent from the CFSL report

dated 08.11.2004 (Exhibit P-X), where it is recorded that the individual

characteristic of striations present on the deformed bullets marked EB-I and EB-

2 were insufficient for comparison and opinion as to whether these had been

fired from the country made pistol of .315" bore marked Exhibit F-1 or not.

Exhibit EB-1 was the deformed bullet which PW20 Sub-Inspector Anil Kumar

found lying at the spot and Exhibit EB-2 was the bullet which was recovered

from the dead body of Surinder Gupta.

28. Therefore, we agree with the submission of the learned counsel for the

appellant that the bullets EB-1 and EB-2 have not been connected with the katta

(Exhibit P-1). As such, it cannot be said that the katta (Exhibit P-1) which was

used in the commission of the offence of murder of Surinder Gupta. Therefore,

the alleged recovery of the same at the instance of Sushil Pehlwan would really

be of no consequence.

29. The learned counsel for the appellants also submitted that the knife which

was supposed to contain blood stains was sent for analysis to the Forensic

Science Laboratory. The report dated 24.03.2004 (Exhibit P-X) clearly

indicated that blood could not be detected, inter alia, on the said knife (Exhibit

11 marked by CFSL). Similarly, no blood was detected on Exhibits 8a, 8b

(alleged to be Dalip Kumar's clothes), Exhibit 9 (alleged to be Suresh

Pehlwan's T-shirt) and Exhibits 10a, 10b (alleged to be Sushil Choudhary's

clothes). It is, therefore, clear that there is no evidence connecting either the

knife or the clothes of the accused to the offence inasmuch as blood could not

be detected thereon. To this extent, the contention of the learned counsel for the

appellants is correct that the so-called recoveries have not been connected with

the offence alleged against them.

30. Consequently, the learned counsel for the appellants submitted that while

the testimonies of PW1 Ashok Chowdhary and DW1 Raj Kumar ought to be

believed, the testimony of PW14 Subodh Kumar ought to be discarded. The so-

called recoveries do not bear any connection with the offence of murder of

Surinder Gupta. The extra-judicial confession cannot be relied upon for

convicting the appellants. Consequently, the appeals ought to be allowed and

the impugned judgment and the order on the point of sentence ought to be set

aside.

31. On the other hand, Ms Richa Kapur, appearing on behalf of the State,

submitted that it was never the case of the prosecution that PW1 Ashok

Chowdhary and DW1 Raj Kumar were eyewitnesses of the actual assault. In

fact, there was not much in the examination-in-chief of PW1 Ashok Chowdhary

which was inconsistent with the police case and, therefore, at that stage, there

was no occasion for having him declared as being hostile. It is only

subsequently when PW1 Ashok Chowdhary was cross-examined by the defence

counsel that an entirely new story was introduced. The said witness

transformed himself as an eyewitness of the actual incident of assault and gave a

clean chit to the appellants by stating that the assailants were not present in

Court. It is because of this volte face in the stance of PW1 Ashok Chowdhary

that it became necessary for the Additional Public Prosecutor to request for an

opportunity to cross-examine PW1 Ashok Kumar Chowdhary. Thereafter, he

had been cross-examined by the defence counsel. It was, therefore, contended

by Ms Kapur that PW1 Ashok Chowdhary's testimony, to the extent it supports

the prosecution case and corroborates the testimony of PW14 Subodh Kumar

should be accepted and to the extent it runs counter to the prosecution case and

sets up an entirely new dimension ought to be discarded. This, according to her,

was an exercise which the court could do and ought to do. Therefore, according

to her, the trial court was entirely correct in basing the conviction on the

testimony of PW14 Subodh Kumar. As regards chance witnesses, the learned

counsel placed reliance on the following two decisions of the Supreme Court:-

(i) Rana Pratap v. State of Haryana: 1983 (3) SCC 327; and

(ii) Gangadhar Behera v. State of Orissa: 2002 (8) SCC 381

32. It would be appropriate to refer to these decisions at this stage itself. In

Rana Pratap (supra), the Supreme Court observed as under:-

"3. There were three eye witnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. The learned Sessions Judge and the learned Counsel described both the independent witnesses as chance witnesses implying thereby that their evidence was suspicious and their presence at the scene doubtful. We do not understand the expression 'chance witnesses'. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that that they are mere chance witnesses'. The expression 'chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are 'chance witnesses' even where murder is committed in a street is to abandon good sense and take too shallow a view of the evidence."

33. In Gangadhar Behera (supra), the Supreme Court observed as under:-

"7. We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is of a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent ad credible.

8. In Dalip Singh and Ors. v. The State of Punjab it has been laid down as under:-

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicated 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."

12. To the same effect is the decision in State of Punjab v. Jagir Singh and Lehna v. State of Haryana. Stress was laid by the accused- appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in

omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Alli v. The State of Uttar Pradesh. Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurucharan Singh and Anr. v. State of Punjab). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead- stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh) and Ugar Ahir and Ors. v. The State of Bihar. An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh : AIR1954SC15 and Balaka Singh and Ors. v. The State of Punjab). As observed by this Court in State of Rajasthan v. Smt Kalki and Anr., normal discrepancies in evidence

are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and Ors. v. State of Bihar etc. Accusations have been clearly established against accused-appellants in the case at hand. The Courts below have categorically indicated the distinguishing features in evidence so far as acquitted and convicted accused are concerned."

34. As can be noticed from the above extracts, in the case of Rana Pratap

(supra), the Supreme Court aptly observed that murders are not committed with

previous notice to witnesses soliciting their presence. The Supreme Court also

noted that the evidence of a chance witness cannot be brushed aside or viewed

with suspicion merely because he/ she is a chance witness. In this light, it was

argued on behalf of the State that the testimony of PW14 Subodh Kumar cannot

be discarded merely because he happened to be there. We may also point out

that in Rana Pratap (supra), the Supreme Court also observed that every person

who witnesses a murder reacts in his own way. Some are stunned, some become

speechless and stand rooted to the spot, some become hysterical and start

wailing, some start shouting for help, others run away to keep themselves as far

removed from the spot as possible and yet others rush to the rescue of the victim

and even go to the extent of counter-attacking the assailants. Importantly, the

Supreme Court observed that "everyone reacts in his own special way". It also

noted that "there is no set rule of natural reaction". The Supreme Court also

observed that to discard the evidence of witnesses on the ground that they did

not react in any particular manner is to appreciate evidence in a wholly

unrealistic and unimaginative way. These observations were relied upon by the

learned counsel for the State to counter the submissions made by the learned

counsel for the appellants with regard to the so-called unnatural conduct of

PW14 Subodh Kumar in not raising any cry for help or in not going to the

police station or in not rushing forward to help the victim Surinder Gupta. It is

obvious that, as observed by the Supreme Court in Rana Pratap (supra), every

person reacts in a different manner. In his own special way. We shall also deal

with the reactions of PW14 Subodh Kumar subsequently.

35. It is also true that in Gangadhar Behera (supra), the Supreme Court

observed that relationship is not a factor which should affect the credibility of a

witness and it is more often than not that a relative would not conceal the actual

culprit and make allegations against an innocent person. The Supreme Court,

however, noted that a foundation has to be laid if the plea of false implication is

made. It was, therefore, contended by the learned counsel for the State that

merely because the deceased Surinder Gupta was known to PW14 Subodh

Kumar does not mean that the credibility of his testimony is dented. The

defence, according to her, has not laid any foundation for the plea of false

implication. There is no evidence that PW14 Subodh Kumar is inimically

disposed towards the appellants and would wish to implicate them falsely. In

the absence of any such factual foundation, the testimony of PW14 Subodh

Kumar, according to the learned counsel for the State, cannot be brushed aside

lightly. She also laid stress on the observations of the Supreme Court with

regard to the maxim of "falsus in uno falsus in omnibus". She stated that the

Supreme Court has recognized that this maxim has no application in India and if

a witness makes a false statement, he cannot be branded as liar in the entire

testimony and it is the duty of the Court to separate the grain from the chaff and

that, where the chaff can be separated from the grain, it would be open to the

Court to convict an accused notwithstanding the fact that evidence has been

found to be deficient to prove guilt of other accused persons. Falsity on a

material particular would not ruin it from the beginning to the end. The

Supreme Court had also observed that the said maxim did not occupy the status

of a rule of law and it was merely a rule of caution. Consequently, the learned

counsel for the State submitted that no interference with the impugned judgment

or the order on the point of sentence was called for and that the appeals ought to

be dismissed.

36. In rejoinder, the learned counsel for the appellants reiterated that the

testimonies of PW1 Ashok Chowdhary and DW1 Raj Kumar ought to be

considered as credible and that of PW14 Subodh Kumar ought to be discarded

on the ground of unreliability and that of his unnatural conduct. He placed

reliance on three other decisions of the Supreme Court:-

(i) Karuppanna Thevar v. State of Tamil Nadu: AIR 1976 SC 980;

(ii) Surjit Singh v. State of Punjab: AIR 1994 SC 110; and

(iii) State of Haryana v. Ram Singh: AIR 2002 SC 620;

37. In Karuppanna Thevar (supra), the Supreme Court observed as under:-

"11. According to Alagiri Chettiar he and the deceased took their food on the 6th evening and thereafter they went to their fields at about the time when one normally goes to sleep. They took a round of their respective fields and the case of Alagiri Chettiar is that he and the deceased kept talking behind a thatti near a well adjoining the field of the deceased. This claim is also highly unnatural. The offence took place at about 1 a. m. on the 7th and it is highly improbable that at that hour Alagiri and the deceased would be just chatting idly near the well. Villagers do chat idly but our attempt in this appeal is to find whether the view taken by the Sessions Court can be characterised as unreasonable or perverse. Unnatural events also do take place in life but when a series of unnatural incidents are alleged to have taken place in quick succession, the case acquires an air of unreality."

38. In Surjit Singh (supra), the Supreme Court observed as under:-

"The conduct of the witness is highly unnatural. When he has seen one of the appellants inflicting injuries one would expect him to raise an alarm or at least inform the kith and kin of the deceased so that

they can go for the rescue of the victim, which he did not do. From the record, it does not appear that at least he was examined during the inquest. We do not know when his statement was recorded during the course of the next day. On his own showing, he was involved earlier in some cases. In one case, he has stabbed by the deceased and in another case he himself was the accused for molestation of a woman. Therefore, he is of a questionable character. However, his conduct is highly unnatural. Though we cannot call him entirely a false a witness but in the absence of any other corroborating evidence we think it is highly unsafe to accept his evidence and then convict both the appellants."

39. In State of Haryana v. Ram Singh (supra), the Supreme Court observed

as under:-

"19. Significantly all disclosures, discoveries and even arrests have been made in the presence of three specific persons, namely, Budh Ram, Dholu Ram and Atma Ram - no independent witness could be found in the aforesaid context - is it deliberate or is it sheer coincidence - this is where the relevance of the passage from Sarkar on Evidence comes on. The ingenuity devised by the prosecutor knew no bounds - Can it be attributed to be sheer coincidence? Without any further consideration of the matter, one thing can be more or less with certain amount of conclusiveness be stated that these at least create a doubt or suspicion as to whether the same has been tailor-made or not and in the event of there being such a doubt, the benefit must and ought to be transposed to the accused persons. The trial Court addressed itself on scrutiny of evidence and came to a conclusion that the evidence available on record is trustworthy but the High Court acquitted one of the accused persons on the basis of some discrepancy between the oral testimony and the documentary evidence as noticed fully herein before. The oral testimony thus stands tainted with suspicion. If that be the case, then there is no other evidence apart from the omnipresent Budh Ram and Dholu Ram, who however are totally interested witnesses. While it is true that legitimacy of interested witnesses cannot be discredited in any way nor termed to be a suspect witness but the evidence before being ascribed to be

trustworthy or being capable of creating confidence, the Court has to consider the same upon proper scrutiny."

40. The observations of the Supreme Court in Karuppanna Thevar (supra)

do not help the appellants. In fact, the Supreme Court observed that unnatural

events also take place in life and it is only when a series of unnatural incidents

are alleged to have taken place in quick succession that the case acquires an air

of unreality. The only unnatural event that is alleged in the present case is with

regard to the so-called unnatural conduct of PW14 Subodh Kumar. There is no

series of unnatural incidents which could give this case an air of unreality.

Therefore, this decision of the Supreme Court does not advance the case of the

appellants. On the contrary, it lends credence to the prosecution case even if we

consider the conduct of PW14 Subodh Kumar to be unnatural. This is so

because the Supreme Court recognized the fact that unnatural events also take

place in life. As regards Surjit Singh (supra), the observations of the Supreme

Court pertain to the facts of the case before it and the conduct of the witness

being highly unnatural. According to the Supreme Court, witnesses could be

expected to raise an alarm or at least to go to the deceased so that they rescue

the victim which, in that case, the witness did not do. In the present case, the

situation is different. PW14 Subodh Kumar, after seeing off the injured

Surinder Gupta in the car driven by PW1 Ashok Chowdhary for hospital,

immediately left, though on foot, to inform the family of the injured. This

conduct is entirely different from the conduct in the fact situation in Surjit

Singh (supra). Furthermore, in Surjit Singh (supra), the witness in question

was earlier involved in criminal cases, where in one case he had been stabbed

by the deceased. There was, therefore, an earlier criminal involvement with the

victim of the crime. That is not the position in the facts of the present case. We

will see that PW14 Subodh Kumar has allegedly been involved in criminal

cases, but as per his testimony in cross-examination, in none of those cases the

accused herein are also involved and, in any event, PW14 Subodh Kumar had

been acquitted in all those cases. Therefore, the remark that he was of

questionable character would not squarely cover the case of PW14 Subodh

Kumar.

41. As regards the observations of the Supreme Court relied upon by the

appellants in the case of State of Haryana v. Ram Singh (supra), we do not see

as to how these observations are really relevant for the case at hand or as to how

they advance the case of the appellants. All that the Supreme Court observed is

that even in the case of interested witnesses, their testimonies cannot be

discarded and that the Court has to consider the same upon proper scrutiny. It is

obvious that the testimony of PW14 Subodh Kumar would have to be

accordingly considered and scrutinized before a conviction can be based upon

it.

42. We are, therefore, left to consider the testimonies of the three crucial

witnesses, namely, PW1 Ashok Chowdhary and DW1 Raj Kumar on the one

side and PW14 Subodh Kumar on the other.

43. PW1 Ashok Chowdary in his examination-in-chief stated that his office is

at H-58/59, South Extension Part-I, New Delhi. He, however, stated that on

31.05.2003 at about 12 noon, he was "standing in front" of the building housing

his office. We may point out straightaway that this statement of PW1 Ashok

Chowdhary was at variance with the statement which he had given to PW20 SI

Anil Kumar in the hospital on the basis of which the FIR was registered. In that

statement, PW1 Ashok Chowdhary had stated that he was inside his office,

whereas, in his examination-in-chief, PW1 has stated that he was standing in

front of the building which housed his office. This is a very material departure

which, however, was not noticed by the learned APP as he ought to have then

and there requested for examining the said witness as he had turned hostile. We

say this because if PW1 Ashok Chowdhary was inside the building, he could

not have seen the actual incident of assault. It is only if he was standing outside

that he could state that he was an eyewitness of the actual incident of assault.

The intention of this witness to turn his evidence on its head was apparent from

this statement itself. However, it was missed by the learned APP.

44. PW1 Ashok Chowdhary then goes on to say in his examination-in-chief

that he heard the sound of a bullet shot. Here too, we note that instead of two

shots, he mentioned only one shot. This statement of his is a veiled statement

inasmuch as he did not indicate as to what he saw but that what he heard. To

the extent that he heard the shot did not militate against the prosecution case.

But, this was the foundation for what he was to say later on in cross-

examination by the defence counsel.

45. PW1 Ashok Chowdhary then stated that after hearing the sound of the

bullet shot, he looked in the direction from which the noise emanated and saw

that about 20-25 steps away, Surinder Gupta was lying on the road. Three

persons were also seen running from the spot. This part of the testimony that he

saw Surinder Gupta lying on the road is not at variance with what he stated

before PW20 in the hospital. However, the fact that he had seen three persons

running from the spot was not so stated in the original statement which formed

the basis of the FIR. We feel that the learned APP ought to have been alert

enough to have recognized this departure also but did not do so. Anyhow, the

said PW1 Ashok Chowdhary, however, stated in his examination-in-chief that

Surinder Gupta was known to him and that he was residing in a building

opposite to his office building. The Honda City vehicle of Surinder Gupta was

also parked just two steps away from him and that Surinder Gupta was bleeding.

He further stated that he and one Raj Kumar removed Surinder Gupta to AIIMS

hospital in Surinder Gupta's vehicle and that the injured was got admitted in the

said hospital. It was further stated that the police came there and recorded his

statement which he had signed and that the statement which bears his signature

was Exhibit PW1/A. As such, it is apparent that PW1 Ashok Chowdharyl, in

his examination-in-chief, admitted the statement Exhibit PW1/A.

46. But, it is in his cross-examination, that a completely different story has

emerged. In his cross-examination on the part of the defence counsel, PW1

Ashok Chowdhary stated that he had seen the deceased Surinder being stabbed.

This is the first time that this witness has come up with this story. He now

claimed to be an eyewitness of the actual incident of assault which was never

the prosecution case. He elaborated by saying that he had also seen the person

who had fired the shot at Surinder Gupta and had also seen him holding a

firearm in his hand. He then states, obviously in response to questions put by

the learned counsel for the defence, that the three persons were in the age group

of 35-40 years. It may be relevant to point out that the accused were much

younger and mostly in their 20s. This statement of PW1 Ashok Chowdhary

elicited in cross-examination was essentially directed to disassociate the

appellants from the crime.

47. It was then stated by PW1 Ashok Chowdhary in his cross-examination

that the three persons had escaped from the spot in a vehicle. We must contrast

this with his statement in examination-in-chief, where he stated that three

persons had run away from the spot. Here, he states that the three persons left

in a vehicle. The Court observation with regard to the demeanor of the witness

is also material, wherein the Court observed as under:-

"witness is taking about some seconds in answering the questions after looking to this and that side."

This also gives an indication that PW1 Ashok Chowdhary was somehow not

telling the truth on this aspect of the matter. Then a question was put by the

learned counsel for the defence as to whether PW1 could identify those

persons? The witness responded by saying that he could identify in case they

came before him. The next question was, were they present in Court? The

witness answered that the three persons were not present in Court on that date.

The obvious implication being that the three accused, namely, the appellants

herein were not the assailants. Then, the effect of Exhibit PW1/A was sought to

be washed away by eliciting a reply from PW1 that Exhibit PW1/A was not

read over to him at the time he signed it and that whatever he had stated in

Court today was what he had told the police on that occasion. The final nail in

the coffin, according to the defence, were the statements eliciting from PW1

Ashok Chowdhary to the effect that he knew Subodh Kumar but that he had not

seen Subodh Kumar at the spot.

48. Consequent upon this cross-examination, as the entire story had been

turned on its head by this witness in the course of his cross-examination, the

learned APP requested to cross-examine this witness and the request was

allowed. Thereafter, the learned APP examined PW1 and confronted him with

his statement Exhibit PW1/A etc.

49. What is material from the above discussion is that the manner in which

PW1 Ashok Chowdhary was transformed from a witness, who merely helped in

placing the injured Surinder Gupta in the car and thereafter taking him to

hospital into a witness who actually saw the assailants of Surinder Gupta and by

doing so claiming to be an eyewitness of the actual incident. Once he purported

to become an eyewitness, he gave a clean chit to the appellants by stating that

they were not the assailants.

50. It is in these circumstances that we feel that this witness to the extent he

states that he was an eyewitness of the actual incident, cannot be believed at all.

However, to the extent that he heard the shot and helped in taking Surinder

Gupta to hospital along with Raj Kumar cannot be disbelieved inasmuch as it is

part of the prosecution case and has been corroborated not only by DW1 Raj

Kumar (to this extent) and by PW14 Subodh Kumar, again, to this extent.

51. We now come to the testimony of DW1 Raj Kumar. Before we examine

the testimony of DW1 Raj Kumar, it would be necessary for us to point out that

this witness had earlier been cited as a prosecution witness but had been

dropped by the prosecution and was picked up by the defence. He was dropped

by the prosecution immediately after the testimony of PW1 Ashok Chowdhary

was recorded. Since DW1 Raj Kumar was connected with PW1 Ashok

Chowdhary, the prosecution probably felt that he would also turn hostile and,

therefore, they dropped him from their list of witnesses. Surely enough, Raj

Kumar was picked up by the defence as their only witness. Essentially, DW1

Raj Kumar has only sought to corroborate what has been stated by PW Ashok

Chowdhary in his cross-examination by the defence counsel. In other words, he

also stated that he was an eyewitness and that he had seen the assailants who

had given the knife blows as well as who had fired upon the deceased Surinder

Gupta. He also stated that all the assailants left the spot along with their

weapons in their Maruti car. He also parroted the statement of PW1 that he

could identify the assailants if they were brought before him and that none of

the assailants were present in Court. Thereby giving a clean chit to the

appellants herein. In this backdrop, it is clear that both PW1 Ashok Chowdhary

and DW1 Raj Kumar have converted themselves into eyewitnesses of the actual

incident when the prosecution never regarded them as such at any point of time.

They were only witnesses to the effect that they saw the injured Surinder Gupta

lying on the road and that they along with others had helped him onto the rear

seat of the car and that PW1 Ashok Chowdhary drove that car along with DW1

Raj Kumar at his side to AIIMS hospital to get the injured Surinder Gupta

admitted.

52. Therefore, separating the chaff from the grain, the only grain of truth that

is there in the testimony of these witnesses is to the extent that they had heard

the gun shots and that they had rushed to the spot and found that Surinder Gupta

was lying in an injured condition on the road and that they had, with the aid of

others, placed him on the rear seat of Surinder Gupta's Honda City car which

was subsequently driven by PW1 Ashok Chowdhary accompanied by DW1 Raj

Kumar to AIIMS hospital where the injured Surinder Gupta was admitted and

where Surinder Gupta subsequently died on the same evening on 31.05.2003.

53. We are now left to consider the testimony of PW14 Subodh Kumar. We

have already indicated parts of his evidence in the foregoing portions of this

judgment. However, it would not be out of place to refer to his testimony in

greater detail. PW14 Subodh Kumar stated that he knew Surinder Gupta as he

had been working with him on a part-time basis. He stated that on 31.05.2003

at about 11:45 and 12 noon, he had gone to see Surinder Gupta at his house but

before he could reach the said house, he saw Surinder Gupta sitting in the car on

the road on the rear of his house. The said Surinder Gupta was talking to the

accused Dalip, Suresh and Sushil. He further stated that when he was about 20

feet away from the car of the deceased, he stood there and saw that the deceased

and the said three accused were having an altercation. He stopped there and

then saw that Suresh pulled out Surinder Gupta from his car. Dalip also assisted

in pulling him out. The third accused, namely, Sushil Choudhary, took out a

katta from beneath his shirt and fired two shots at Surinder Gupta. After

Surinder Gupta had been hit twice by the bullets, he fell down but Dalip held

him and it was then that Suresh pulled out a knife and gave Surinder Gupta

several knife blows. The deceased Surinder Gupta then fell on the road and the

three accused escaped from there. He further stated that other persons had also

collected there and one Ashok (referring to PW1 Ashok Chowdhary), who was

a resident of the same neighbourhood, came there and removed the injured

Surinder Gupta in the car of the deceased to hospital. He further stated that

thereafter, he went to the house of the father of the deceased to inform him

where several people were already present and the information about the

incident had already reached them. Subsequently, it was informed that Surinder

Gupta had expired. He then goes on to state about the manner in which the

arrests of the accused were made on 02.06.2003 and the manner in which the

recoveries were made with which we need not concern ourselves inasmuch as

the recoveries have not been connected with the crime.

54. In cross-examination by the defence counsel, this witness stated that he

did not have any cell phone in those days and that the accused had fled from the

spot after the occurrence and within his sight. He further stated that the injured

was lying on the road and about 3-4 persons including him reached the injured

soon after. He further stated that Ashok Chowdhary also came there but did not

know anybody by the name Raj Kumar and cannot say whether he was there or

not. He stated that he assisted in putting the injured inside the car. PW1 Ashok

Chowdhary drove away the car from there. He further stated that the injured

was bleeding while lying on the road. He had not received blood on his clothes

nor had he noticed as to whether anyone else had got blood on their clothes or

not. He further stated that he himself did not go to AIIMS nor did he request

Ashok Chowdhary to take him to the hospital but that he had just told them that

he would go and inform the family of Surinder Gupta. Consequently, he went

to the old house of the deceased in Kotla Mubarakpur on foot and reached there

in about 15-20 minutes time. He volunteered to state that in between he stopped

at the shop Bhanu Garments belonging to the family of the deceased where he

saw that a crowd had collected and that they had already received information

about the incident. He further stated in cross-examination that he did not inform

the police nor made any attempt and that when he returned to the spot at about

1- 1:30 pm the police had already reached there and that he told the police about

his having witnessed the occurrence. Consequently, his statement was recorded

by the police but he did not know the name of the officer who had so recorded

his statement. He further stated that at that point of time, he did not know that

Surinder Gupta had died or not. After his statement, he might have stayed for

15-20 minutes and he left the spot and went to the hospital by bus and remained

in the hospital till about 5 pm, where after, he went home after the dead body

had been sent to the mortuary.

55. This conduct of the said PW14 Subodh Kumar has been alleged by the

learned counsel for the appellants to be highly unnatural. We have already

noticed the observations of the Supreme Court that every witness has his own

special way of reacting. Some witnesses, on seeing a horrific crime being

committed, stand still and freeze. Others may raise an alarm and cry for help.

Yet others may run away from the scene and some may even advance towards

the assailants in order to help the victim. People react differently. The fact that

PW14 Subodh Kumar neither cried for help nor ran away from the scene nor

advanced towards the assailants but just stood still and saw the crime being

committed cannot by itself be regarded as unnatural. There may be many

reasons as to why he reacted in the manner he did. Perhaps, he was scared.

Perhaps, he knew that the assailants were dangerous people and his life was also

at stake. Perhaps, he knew that because he had been involved in earlier cases in

which he had been acquitted, if he ran forward he might be implicated in this

case also. There may be a myriad of reasons as to why the said PW14 Subodh

Kumar reacted in the manner he did but it cannot be said that it was unnatural.

Therefore, on this ground alone his testimony cannot be discarded.

56. PW14 Subodh Kumar, after the assailants ran away from the spot,

immediately rushed to the injured Surinder Gupta and with the assistance of

others helped him on to the car which was driven by PW1 Ashok Chowdhary

towards AIIMS hospital. Thereafter, the said witness immediately went

towards the old house of Surinder Gupta to inform his family members of the

incident. It must be noted that it has been revealed in the cross-examination that

PW14 Subodh Kumar did not have a cell phone in those days and, therefore, he

could not make a phone call from the spot. Instead, he chose to walk to

Surinder Gupta's father's house. On the way, he stopped at Bhanu Garments

which belonged to Surinder Gupta's brother and there he came to know that the

information of the incident had already been received. It is subsequently that

the said witness returned to the spot when he met the police officers and made

his statement before PW20 SI Anil Kumar. There is no doubt that there is a

discrepancy in the timing with regard to the departure of PW14 Subodh Kumar

and the arrival of PW20 SI Anil Kumar. But that discrepancy can be explained

by the passage of time between the incident and the date of deposition and is not

so material as to entail the discarding of the entire testimony of PW14 Subodh

Kumar.

57. Consequently, we are of the view that PW14 Subodh Kumar's conduct

was not unnatural and that he was a truthful witness. Some minor discrepancy

with regard to timings cannot dent the credibility of this witness with regard to

the actual incident. Furthermore, although PW14 Subodh Kumar was a chance

witness in the sense that he happened to see the incident, it cannot be said that

his presence at the spot was unexplained. He had already testified that he had

worked on a part-time basis with Surinder Gupta and had gone to see him on

that day. But, before he could reach his house, the incident took place at the

rear portion of Surinder Gupta's house. There was nothing unnatural about the

presence of PW14 Subodh Kumar. The fact of the matter is that he was there

and he saw the incident. We have examined the evidence with great care and

caution and come to the conclusion that PW14 Subodh Kumar was an

eyewitness to the incident and that he had seen the commission of the crime at

the hands of the three appellants in the manner indicated above. He had

identified the three assailants in Court also.

58. Therefore, there is no escaping from the fact that the trial court has rightly

convicted the appellants. Consequently, no interference with the impugned

judgment and order on the point of sentence is called for.

The appeals are dismissed.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J NOVEMBER 05, 2012 SR