Maheshwari Prashad & Another vs State
2012 Latest Caselaw 6357 Del

          THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 31.10.2012

+        CRL. A. 349/1997

MAHESHWARI PRASHAD & ANOTHER                                   ... Appellants

                                         versus

STATE                                                          ... Respondent
Advocates who appeared in this case:
For the Appellants           : Mr Sumeet Verma
For the Respondent/State     : Ms Richa Kapur

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

                                   JUDGMENT

BADAR DURREZ AHMED, J

1. This appeal is directed against the judgment dated 26.07.1997

delivered by the Additional Sessions Judge, Delhi in Sessions Case No.

131/1995, which, in turn, arose out of FIR No. 197/1995 registered at

Police Station Janak Puri, under Sections 302/307/324/34 IPC and Sections

25 and 27 of the Arms Act, 1959.

2. By virtue of the said judgment dated 26.07.1997, the learned

Additional Sessions Judge found the appellants to be guilty of the offence

punishable under Sections 307/34 IPC as also of the offence punishable

under Section 302 read with Section 34 IPC. However, the learned

Additional Sessions Judge acquitted the appellants in respect of the offence

under Section 324/34 IPC and the Arms Act offences. The appellants are

also aggrieved by the order on sentence dated 29.07.1997, whereby the

learned Additional Sessions Judge has sentenced the appellants in respect

of the offence under Section 302/34 IPC to imprisonment for life. The

appellants were also fined ` 1,000/- each and in default of payment the fine,

they were to further undergo rigorous imprisonment for one month each.

Insofar as the offence under Section 307/34 IPC is concerned, both the

appellants were sentenced to rigorous imprisonment for seven years each.

They were also fined ` 1,000/- each and in default of payment of the fine,

they were to further undergo rigorous imprisonment for one month each.

Both the sentences were directed to run concurrently.

3. The appellants had been charged by an order dated 02.11.1995 as

under:-

"CHARGE I, G.D. Dhanuka, Addl.Sessions Judge,Delhi, hereby charge you (1) Maheshwari Prashad s/o Kamla Pati and (2) Ramesh s/o Kamla Pati as under:-

Firstly, that on 3-4-95 at about 9.00p.m. to 9.30p.m. near Jhuggi, No.51, A-I Block, Janak Puri, Delhi, you both in furtherance of your common intention committed the murder of Naresh and thereby committed an offence punishable u/s 302/34 I.P.C. and within the cognizance of this court.

Secondly, on the same date, time and place, in furtherance of your common intention you inflicted knife injuries on the person of Pappu with such intention or knowledge or under such circumstances that if by that act you had caused the death of Pappu, you would be guilty of murder and thereby committed an offence punishable u/s 307 read with section 34 IPC and within the cognizance of this court.

Thirdly, on the same date, time and place, you both in furtherance of your common intention, voluntarily caused simple injury with knife to Rakesh and thereby committed an offence punishable u/s 324/34 IPC and within the cognizance of this court.

And I hereby direct that you be tried by this court for the said charge."

4. It would be pertinent to note that DD No. 27-A dated 03.04.1995 was

recorded at 10:45 pm at Police Station Janak Puri on the complaint of the

appellant Ramesh. In the said complaint, it was alleged that 10-12 persons

had come to the jhuggi of the appellants and had assaulted them and that

Ramesh had received injuries on his ear and that his brother had also

received injuries. After the recording of the said DD entry, the appellant

Ramesh had been sent to Deen Dayal Upadhyay Hospital for medical

examination.

5. Sub-Inspector V. K. Rastogi (PW17) had allegedly recorded the

statement (Exhibit PW3/A) of PW3 Pappu and on that statement, which

was allegedly recorded at the DDU Hospital vide DD No. 32-A, the said

Sub-Inspector V. K. Rastogi got the FIR No. 197/1995 registered at Police

Station Janak Puri on 04.04.1995 at 2:05 am. In the said FIR, the statement

of PW3 Pappu was reproduced. The English translation of the same reads

as under:-

"I reside at the aforementioned address and I am a labourer. Tonight at about 9/9:30 P.M. my friend Naresh S/o Ram Swamy R/o W-61 Narang Colony Jhuggi, Janakpur Puri ,Delhi who also hails from my Village and he is engaged in the work of constructing road at Kakrola Road. He went to Huggi No. 51, A-1 Block, Janakpuri because tomorrow the job of Road making was to start and for that purpose labour was required. After sometime Naresh came back to my jhuggi and told me that Maheshwari Pradhan who lives in Jhuggi No. 51, A-1 Block, was not allowing him to arrange labour from there and was asking for commission for arranging the labour from there and was bent upon raising a quarrel. Thereafter I, my friend Naresh and Naresh's brother namely Rakesh went there in that Jhuggi where in Jhuggi No. 51, Balkishan met us. When we were talking with Bal Kishan regarding labour, Maheshwari Pradhan came there from inside the Jhuggi who used to live in the other portion of the jhuggi. He said that he had just asked us not to come there and we had come there again and

Makeshwari Pradhan started abusing me and scuffling with me as a result of which all the articles lying in the jhuggi got scattered. I somehow saved myself and came out of the jhuggi. In the meantime Jhuggi dwellers came there and started extricating us. We started to move towards our jhuggis. Maheshwari Pradhan followed us and shouted loudly "You have collected enough labour from here and have earned much money. How can you go safely" and Maheshwari Pradhan made a murderous assault on me with a knife from behind and gave me two blows on my back. Naresh's brother namely Rakesh who was extricating us received injury on his right wrist. Immediately after being injured I ran from there and reached my jhuggi in Narang colony. A little bit later Naresh and Rakesh also reached there. Naresh was also having knife injuries on his body which were bleeding. Rakesh brought us both to D.D.U. hospital and got us admitted there. I do not know attacked on Naresh with knife because all this happened after I left from there. Naresh's brother Rakesh who was present at the spot can tell about this. Maheshwari Pradhan who is employed with Home Guard has given me knife injuries with intention to kill. Legal action may be taken against him. You have recorded my statement in DDU Hospital which I have heard and the same is correct."

6. The said Naresh referred to in the FIR, succumbed to his injuries in

the DDU Hospital at about 2:10 am on 04.04.1995. Sub-Inspector V. K.

Rastogi, who is the first Investigating Officer in this case, conducted the

inquest proceedings in the hospital. Thereafter, he went to the spot and

according to the prosecution case, he was met by PW2 Rakesh and Suresh.

He inspected the spot and prepared the site plan (Exhibit PW17/C) on the

pointing out of PW2 Rakesh. He lifted blood samples, blood stained earth

and control earth and sealed them separately and seized them. He also got

the place photographed. He allegedly recorded the statement of PW2

Rakesh. Thereafter, the appellant Maheshwari Prashad was arrested from

his jhuggi on 04.04.1995 in the evening, allegedly in the presence of PWs

Rakesh and Suresh. Apparently, a disclosure statement was recorded. On

05.04.1995, the investigation was taken over by the Additional SHO

(PW18) Inspector Makhan Singh. The appellant Ramesh was arrested by

the said PW18 Inspector Makhan Singh at about 11 am at the main road of

C-II Block, Jhuggi Cluster. Apparently, the said appellant Ramesh made a

disclosure statement indicating that he had thrown a knife in the ganda

nallah of A-1 Block and that he could get the same recovered. As per the

prosecution, the Investigating Officer Makhan Singh had directed Sub-

Inspector V. K. Rastogi along with the appellant Ramesh and PWs Rakesh

and Suresh to proceed for recovery of the said knife at about 5 pm on

05.04.1995. However, no recovery could be effected on that day. On the

next day, that is, on 06.04.1995, Inspector Makhan Singh along with the

appellant Ramesh and PW Suresh and others, once again, left for recovery

of the knife. At that point of time, the appellant Ramesh allegedly led the

party to the ganda nallah of A-1 Block and got a buttondar knife (Exhibit

P-1) recovered from a pit near a bush in a corner of the ganda nallah. The

said knife was allegedly blood stained. Inspector Makhan Singh prepared

the sketch of the said knife and sealed it in a parcel and seized it.

7. The post mortem examination of the body of the deceased Naresh

was, in the meanwhile, conducted on 05.04.1995 by PW6 Dr K. Goyal.

The post mortem examination report (Exhibit PW6/A) was prepared.

According to the said report, there were seven external injuries on the body

of the deceased Naresh. Injury Nos. 1 and 2 were on the back of the

deceased and all the injuries were found to be ante mortem except injury

No. 3 which was due to a surgical procedure to drain the blood. Injury Nos.

1 and 2 were said to have been caused by a sharp edged weapon and injury

Nos. 4-7 were said to have been the result of application of a blunt force.

As per the said PW6 Dr K. Goyal, injury No. 1 was sufficient to cause

death in the ordinary course of nature and the cause of death was opined as

hemorrhagic shock consequent to lung injury.

8. It would be relevant to point out that the knife Exhibit P-1 had been

sent to the doctor who conducted the post mortem examination, namely,

PW6 Dr K. Goyal for his opinion. But, he refused to give any opinion

because the injuries had been surgically tampered with. Consequently, the

knife Exhibit P-1 was sent to PW14 Dr Mansoor who had seen the

deceased Naresh, who had been taken to the DDU Hospital in an injured

condition. By virtue of his report PW14/C, Dr Mansoor had given the

opinion that the injuries might have been caused by the weapon shown to

him.

9. It is also important to note that as per the CFSL report, blood of

human origin and of AB Group was detected on the clothes of the deceased

Naresh as also on the gauze piece preserved by PW6 Dr. K. Goyal. Blood

was also detected on the knife Exhibit P-1. However, it is important to note

that neither its origin nor its group could be confirmed.

10. After completion of the investigation, a challan under Sections 302,

307 and 324 read with Section 34 of the IPC was filed against the

appellants. After the committal proceedings, the case came up before the

Sessions Court for trial and the charges were framed on 02.11.1995. The

charges have already been extracted by us above. The appellants pleaded

not guilty and claimed trial.

11. In the trial, the prosecution examined as many as 18 witnesses. The

appellants did not produce any witness in their defence. However, in their

statements recorded under Section 313 of the Code of Criminal Procedure,

1973, the appellants denied the evidence against them and claimed

innocence.

12. The appellant Maheshwari Prashad in his statement under Section

313 Cr.P.C, inter alia, stated that a quarrel took place in the jhuggi where

20-25 persons were taking liquor. He (Maheshwari Prashad) objected to it

and they started abusing him. He did not know any of the persons present

there. His brother Ramesh also came there. In the course of the quarrel, he

got a simple injury with a bamboo and he and his brother Ramesh went to

the police station to make a complaint. According to Maheshwari Prashad,

the police asked him to stay back at the police station and the daroga

himself went to the spot. The daroga also sent his brother Ramesh for

medical examination. It was then stated that the daroga returned to the

police station at about 12 midnight and told him that there was nothing at

the spot. Although the daroga had asked him to leave, Maheshwari

Prashad had waited for his brother Ramesh, who had not returned from the

hospital. It was then stated that, in the meantime, the daroga received a

telephone call from DDU hospital and thereupon the daroga had asked him

to stay back at the police station. After some time, his brother returned

from the hospital. It is further stated that the daroga told them (Maheshwari

Prashad and his brother Ramesh) that the matter would get compromised.

It is further stated that Maheshwari Prashad told the daroga that they were not

involved in any occurrence. Anyhow, they were put in the lockup. Thereafter,

according to Maheshwari Prashad, they were falsely implicated. The statement

of the appellant Ramesh under Section 313 Cr. P.C is on similar lines. In

addition, the appellant Ramesh further added that the police had also

apprehended Bal Kishan and one Jagdish. The police had demanded money from

the appellants which they could not give. However, Bal Kishan and Jagdish paid

` 15,000/- each and they were let off while the appellants were falsely implicated

in this case.

13. PW1 Bal Kishan, PW2 Rakesh and PW3 Pappu are all road

construction workers. It may be relevant to note that PW1 Bal Kishan,

PW2 Rakesh and the deceased Naresh belonged to the same village. PW2

Rakesh and the deceased Naresh were cousins. Apart from these three

witnesses, there is the testimony of PW17, Sub-Inspector V. K. Rastogi,

who was the initial Investigating Officer and PW18, the second and final

Investigating Officer Inspector Makhan Singh. We have already alluded to

the post mortem report and PW6 Dr. K. Goyal as also PW14 Dr M. N.

Mansoor, who gave his opinion with regard to the knife Exhibit P-1.

14. The entire prosecution case turns on the evidence of PW1 Bal

Kishan, PW2 Rakesh and PW3 Pappu. Before we examine the testimonies

of these witnesses, it would be relevant to note that the alleged recovery of

the knife Exhibit P-1 has not been connected with the injuries on the

deceased Naresh. We have already pointed out that the CFSL report could

not determine as to whether the blood stains on the blade of the knife

Exhibit P-1 were of human origin or of which blood group. It may also be

pointed out that, in the first instance, when the so-called disclosure

statement was made by the appellant Ramesh on 05.04.1995 and the party

along with the appellant Ramesh went to recover the knife, they could not

do so. It is only on the next day, that is, on 06.04.1995 that the knife was

allegedly recovered at the instance of the appellant Ramesh. This in itself

becomes a suspicious circumstance. However, we need not go into this

inasmuch as the blood stains on the said knife have not been determined to

be of human origin and much less of the same blood group as that of the

deceased Naresh, which the CFSL had otherwise determined to be of AB

Group.

15. The learned counsel for the appellants submitted that the appellants

have been wrongly convicted inasmuch as PW1 Bal Kishan did not see the

incident at all and, in any event, he was an interested witness inasmuch as

he belonged to the same village as that of the deceased Naresh and his

cousin PW2 Rakesh. Insofar as PW3 Pappu is concerned, the learned

counsel for the appellants submitted that the said witness has also not

supported the case of the prosecution. In fact, PW3 Pappu had been

declared hostile by the prosecutor. And, as regards PW2 Rakesh, the

learned counsel submitted that the said witness was not only an interested

witness, being a close relative (cousin) of the deceased Naresh, but had also

contradicted himself at several stages and, therefore, his testimony was not

trustworthy. He submitted that while Rakesh had stated in his testimony in

Court that the deceased Naresh had not consumed any liquor, this was

belied by the MLC in respect of Naresh prepared at the DDU Hospital

being Exhibit PW16/A which was to the effect that the smell of liquor

could be detected in his breath. It was also contended by the learned

counsel for the appellants that PW2 Rakesh in his cross-examination stated

that his statement was recorded by the police on 13.05.1995 (Exhibit

PW2/DA) and that no statement had been recorded earlier. Yet, the

prosecution was alleging that the statement of Rakesh had been recorded on

3/4th April, 1995. It was also contended by the learned counsel for the

appellants that the blood stained clothes of PW2 Rakesh, who allegedly

took the injured Naresh in a rickshaw to the hospital, had not been seized

by the police. This would also go to show that PW2 Rakesh had not

witnessed the incident. It was further pointed out by the learned counsel for

the appellants that PW2 Rakesh, in his testimony in Court, stated that the

names of the assailants had been given to the doctor as well as also to the

police, but the names do not find any mention in the MLC Exhibit PW16/A

in respect of Naresh. Furthermore, it was submitted that PW2 Rakesh had

stated that he had told the doctor, who admitted Naresh in the hospital, that

Naresh had been injured by Maheshwari Prashad. A similar statement was

made with regard to PW2 Rakesh telling the police that Naresh had been

injured by Maheshwari Prashad. However, the prosecution case is that

Naresh was assaulted by the appellant Ramesh and not by Maheshwari

Prashad. Therefore, there is a clear contradiction between what has been

stated by PW2 Rakesh and the case for the prosecution.

16. The learned counsel for the appellants also submitted that the

prosecution case is that PW2 Rakesh took both Naresh and Pappu to the

hospital. This is also apparent from the MLCs - Exhibit PW16/A in

respect of Naresh and Exhibit PW13/A in respect of Pappu. But, the

learned counsel for the appellants submitted that PW2 Rakesh in his

testimony before Court stated that after the incident Pappu went to his

jhuggi and he took Naresh to the hospital in a rickshaw. He (PW2 Rakesh)

does not mention that he also took Pappu to the hospital. Another point

raised by the learned counsel for the appellants was that although PW2

Rakesh has been shown as the person who brought the injured to the

hospital, the FIR was not recorded on his statement. Although, PW2

Rakesh in his cross-examination stated that his statement was also recorded

by the police on 03.04.1995 at the DDU Hospital and that this was recorded

by the police before he left for Sultan Puri, the learned counsel for the

appellants questioned as to why, then, was the FIR not registered on the

basis of PW2 Rakesh's statement but on the basis of Pappu's statement,

who was not even an eyewitness? According to the learned counsel for the

appellants, this fact also clearly demonstrated that PW2 Rakesh was not an

eyewitness. Lastly, it was submitted by the learned counsel for the

appellants that while the MLC Exhibit PW16/A and the post mortem report

Exhibit PW6/A, both indicated two stab injuries on the back of the

deceased Naresh, PW2 Rakesh did not indicate the number of knife blows

given by Ramesh. His only statement was:-

"then accused Ramesh snatched the knife from accused Maheshwari Prashad and attacked Naresh with the knife on his back."

It was contended that had PW2 Rakesh actually seen the incident, he would

have definitely indicated the number of blows. Since he had not seen the

incident, he could only make a general statement that Naresh was attacked

with a knife on his back.

17. For all these reasons, it was contended by the learned counsel for the

appellants that the impugned judgment and / or order on sentence ought to

be set aside as there existed sufficient doubt with regard to the commission

of the offences.

18. The learned counsel appearing on behalf of the State entirely

supported the decision of the learned Additional Sessions Judge both on

conviction as well as on sentence. She stated that the testimony of PW2

Rakesh, who was an eyewitness, was unshaken in material particulars and,

therefore, could be relied upon to found a conviction thereon. She

submitted that the minor contradictions in PW2 Rakesh's testimony ought

to be overlooked and ignored particularly as, according to her, in material

particulars he has proved the prosecution case. She also submitted, with

regard to the testimony of PW3 Pappu, that just because he was declared to

be a hostile witness, his entire testimony cannot be effaced. For this

proposition, she placed reliance on the Supreme Court decision in the case

of Khujji @ Surendra Tiwari v. State of M. P: (1991) 3 SCC 627. In that

decision, the Supreme Court had observed as under:-

"But counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this Court - Bhagwan Singh v. State of Haryana: (1976) 1 SCC 389; Rabindra Kumar Dey v. State of Orissa: AIR 1977 SC 170 and Syad Akbar v. State of Karnataka: 1980 1 SCC 30 - that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record

altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."

Therefore, she contended that to the extent that PW3 pappu's testimony

supports the prosecution case and the same is reliable, it can be used to

corroborate the testimonies of other prosecution witnesses. The learned

counsel further submitted that the testimony of PW2 Rakesh, who is an

eyewitness of the incident, is proved beyond reasonable doubt and is

corroborated by the oral testimony of PW1 Bal Kishan and PW3 Pappu,

who is himself an injured witness. She further submitted that the MLC

Exhibit PW13/A in respect of Pappu and Exhibit PW16/A in respect of

Naresh clearly established the presence of PW2 Rakesh inasmuch as his

name (Rakesh Kumar) appears in both the MLCs as the person who

brought the said Pappu and Naresh to the hospital. It was submitted that

once it was established that PW2 Rakesh was present at the scene of the

incident, then his testimony cannot be lightly brushed aside particularly

when he has, according to her, proved the prosecution case in material

particulars. Consequently, it was submitted by the learned counsel for the

State that no interference with the impugned judgment and/ or order on

sentence was warranted.

19. From the above discussion, it is clear that the testimonies of PW1 Bal

Kishan, PW2 Rakesh and PW2 Pappu are of vital importance in this case.

In particular, the testimony of PW2 Rakesh is of great significance. As

such, we need to examine their testimonies in some detail.

20. PW1 Bal Kishan has stated that on 03.04.1995 at about 9 or 9:30 pm

his friend Naresh came to his jhuggi. He has also stated that the owner of

the jhuggi was the appellant Maheshwari Prashad. Naresh and PW1 Bal

Kishan were talking regarding engaging labourers from the area for the

next morning and in the meantime Maheshwari Prashad came there and

said that he would not allow any labourer to be engaged from that area and

he also asked Naresh to leave the place immediately.

21. PW1 Bal Kishan further stated that after about half an hour Naresh

along with PW3 Pappu and PW2 Rakesh came to his jhuggi once again.

They asked him to be ready for the job for the next morning. At that point

of time, Maheshwari Prashad also came there and demanded a reply from

Naresh as to how he had returned to the place when he had earlier asked

him to leave. A quarrel ensued between Maheshwari Prashad on the one

side and Naresh, Pappu and Rakesh on the other. During this quarrel

several articles lying in PW1 Bal Kishan's jhuggi were scattered and

thereafter all the three persons, namely, Naresh, Pappu and Rakesh as also

Maheshwari Prashad came out of the jhuggi. In the meantime, the

appellant Ramesh who is Maheshwari Prashad's brother, also came there as

he resided in a nearby jhuggi. He also took part in the quarrel.

Importantly, this is where PW1 Bal Kishan's statement ends, inasmuch as

he stated that:-

"Out of fear, I fled away from the spot".

In his cross-examination, PW1 Bal Kishan reiterated this statement in the

following manner:-

"After the quarrel when I fled away from the jhuggi, I never returned to the jhuggi till today."

22. From the above examination-in-chief and cross-examination of PW1

Bal Kishan, it is evident that Naresh had paid two visits to Bal Kishan's

jhuggi on the night of 03.04.1995. It appears that on the first visit at about

9-9:30 pm Naresh had come alone. There was some exchange of words

between Naresh and Maheshwari Prashad and Naresh had left the jhuggi,

after Maheshwari Prashad had asked him to leave. After about half an

hour, Naresh paid a second visit to PW1 Bal Kishan. This time, he was

accompanied by PW2 Rakesh and PW3 Pappu. Once again, a quarrel

ensued between Maheshwari Prashad who happened to come there and

Naresh as also Rakesh and Pappu. The quarrel was later joined by

Maheshwari Prashad's brother Ramesh. All these persons had left the

jhuggi of PW1 Bal Kishan. Till that point of time there had been no assault

on either Naresh or Pappu. PW1 Bal Kishan had left the scene out of fear

and, in his own words, had not returned till the date of his deposition.

Thus, the testimony of PW1 Bal Kishan only indicates that Naresh visited

his jhuggi twice. On the first occasion he had come alone and on the

second occasion he was accompanied by Rakesh and Pappu and on both the

occasions Naresh had a quarrel with Maheshwari Prashad. It is established,

as per PW1's testimony, that the scene of the quarrel changed from inside

PW1 Bal Kishan's jhuggi to outside and thereafter PW1 Bal Kishan left the

scene. Therefore, PW1 Bal Kishan is not a witness of the assault on Pappu

and Naresh.

23. We now come to PW3 Pappu. This witness gives a somewhat

different story with regard to the visit to Bal Kishan's jhuggi. He stated in

his examination in chief that he knew the deceased Naresh as also the

appellants Maheshwari Prashad and Ramesh. He further stated that on

03.04.1995 at about 7 pm he, Naresh and PW2 Rakesh had gone to Bal

Kishan's jhuggi to arrange for labourers. He stated that while they were

talking with Bal Kishan inside his jhuggi, Maheshwari Prashad came there

and demanded rent of the jhuggi from Bal Kishan. According to PW3

Pappu he asked Maheshwari Prashad to wait as they were talking with Bal

Kishan and on that Maheshari Prashad stood on the side. This witness

further states that while they were talking with Bal Kishan, they had an

altercation with him on the issue of rate of labour. At that point of time,

Maheshwari Prashad intervened and during that intervention, Maheshwari

Prashad got injured and he threatened to report the incident to the police.

PW1 Bal Kishan is alleged to have replied that he would "see him".

Thereafter, according to PW3 Pappu, the said Maheshwari Prashad left the

jhuggi for going to the police station. It is further stated by PW3 Pappu

that one Jagdish contractor had also come there and that he had forgotten to

mention his name in his earlier statements. It was further stated that

thereafter PW3 Pappu, Jagdish, Naresh and Rakesh left for their jhuggi and

they narrated the incident to their people in their area. Thereafter, 30-40

persons from the area accompanied them to Bal Kishan's jhuggi and that

Bal Kishan had collected 30-40 persons of his area. It was about 9 pm that

a quarrel took place between the two parties. He further stated that:-

"During this quarrel someone gave me a knife blow on my back. Naresh also was given knife blows. But I do not know who gave the knife blows to me or to Naresh. We started running towards our jhuggis. On the way, Rakesh met us. Rakesh took me and Naresh to DDU Hospital."

At that stage of the examination-in-chief, the learned APP wanted to cross-

examine the witness as he had resiled from his earlier statement.

Consequently, PW3 Pappu was cross-examined by the learned APP.

Essentially, the said witness was confronted with his alleged statement

Exhibit PW3/A, which he had allegedly made on 3/4th April, 1995 before

the police. All the confrontations were denied by the said witness. In his

cross-examination by the defence counsel, the said PW3 Pappu stated that

on open fight had taken place between the two groups and that he could not

say as to who gave the knife blows to him and Naresh. He also stated that

it was correct that it was dark at that time at the place of the fight and that

the appellants were not present at that time.

24. The above testimony of PW3 Pappu does not at all support the

prosecution case. On the contrary, PW3 Pappu clearly stated that he did

not know as to who assaulted him and Naresh. What is significant is that

Pappu himself is an injured witness. There is all the more reason for him to

have named his assailant if he knew who had assaulted him. This is a

significant fact which goes against the prosecution. This witness has also

denied having seen as to who was the assailant insofar as the deceased

Naresh was concerned. This witness has completely belied the story of the

prosecution and he also contradicts the testimony of PW1 Bal Kishan with

regard to the visits of Naresh. PW1 Bal Kishan, it may be remembered,

had stated that the quarrel, on both the occasions, was between Naresh and

Maheshwari Prashad, whereas PW3 Pappu has stated that the quarrel was

between Naresh's group and Bal Kishan. Thereafter, on the second round,

there was an altercation and free fight amongst a larger group of Naresh,

Rakesh and Pappu on the one hand and Bal Kishan on the other. Therefore,

there is nothing in PW3 Pappu's testimony which would tend to support the

prosecution case.

25. We are, therefore, left with the all important witness, that is, PW2

Rakesh. In his examination-in-chief, PW2 Rakesh has stated that the

deceased Naresh was his cousin as he was his uncle's son. He stated that

Naresh used to work as a Jamadar and used to supply labourers to the

contractor for the construction of roads. It was stated by PW2 Rakesh that

on 03.04.1995 at about 9 or 9:30 pm he had gone to the jhuggis of A-1

Block, Janak Puri for engaging labourers and for that purpose, he had gone

to jhuggi No. 51 which belonged to Maheshwari Prashad. In one portion of

the said jhuggi, PW1 Bal Kishan used to reside. It was stated that after

some time Naresh returned to his jhuggi which was shared by Naresh and

PW2 Rakesh. This witness further stated that Naresh told him that

Maheshwari Prashad had objected to his engaging labourers from the

jhuggis of A-1 Block, Janak Puri and that he had forced him to leave. Of

course, this statement was objected to, and rightly so, as being hearsay.

PW2 Rakesh further stated that after Naresh's return, he (Rakesh) and

Pappu accompanied Naresh to the jhuggi of PW1 Bal Kishan. There, they

started talking with Bal Kishan with regard to the arranging of labourers for

the next day's work. At that point of time, Maheshwari Prashad came there

and questioned Naresh as to how he had returned when he had earlier asked

him to leave? Thereafter, a scuffle ensued between Maheshwari Prashad

and Naresh and the articles lying in the jhuggi of Bal Kishan got flung

around. Lights also went off. Thereafter, they all came out of the jhuggi.

Ramesh, who is the brother of Maheshwari Prashad, is also stated to have

come there and some other jhuggiwalas had also collected. It is then

stated:-

"Accused Maheshwari Psd chased Naresh with an open knife in his hand. Papoo and myself were also running. Accused Maheshwari Psd gave the first knife blow to Papoo. Then myself and Naresh intervened. In the scuffle I also received a knife blow on my left wrist. Thereafter, accused Ramesh caught hold of the deceased Naresh and felled him on the ground. Then accused Ramesh snatched the knife from accused Maheshwari Psd and attacked Naresh with the knife on his back. Thereafter, both the accused fled away from the spot. Papoo went to his jhuggi and I put Naresh in a rickshaw and took him to DDU Hospital. After getting Naresh admitted to hospital, I went to Sultan Puri to inform my brother Suresh. I along with Suresh returned to hospital. By that time, Naresh had already expired. It took me about 3-4 hours for going to Sultan Puri and coming back to hospital with Suresh."

26. It was further stated by the said witness that the police came to the

hospital and he took the police to the place of occurrence. Suresh went to

the jhuggi. The police inspected the spot and prepared the site plan and

also lifted blood etc. from the spot and seized the same.

27. In his cross-examination, PW2 Rakesh has stated that his statement

was recorded by the police on 13.05.1995 and that no statement was

recorded earlier to this. In his cross-examination, the said PW2 Rakesh

stated that his clothes got blood stained when he lifted Naresh and put him

in a rickshaw for taking him to the hospital. According to this witness, he

had told the doctor at the hospital that Naresh had been injured by

Maheshari Prashad. Furthermore, he stated that he had told the police, on

inquiries by them, that Naresh had been injured by Maheshari Prashad.

After having left for Sultan Puri, he returned to the hospital with Suresh in

the same rickshaw at about 3 am.

28. PW2 Rakesh further stated in his cross-examination that it was

incorrect to suggest that Naresh and he had consumed liquor. He stated that

he does not drink. He further stated that Naresh used to drink but at that

time he had not consumed any liquor. He, of course, denied the suggestion

that Bal Kishan had also collected 30-40 persons and that there was a

quarrel between the two parties on the issue of payment of wages to the

labourers. PW2 Rakesh further stated in his cross-examination that they ran

towards their jhuggi and when they were so running he was ahead of

Naresh and Pappu. Naresh was behind him and Pappu was behind Naresh.

When they were running, Naresh might have been about 3 to 5 feet behind

him (Rakesh) and the distance between Naresh and Pappu was also about

the same. He also stated that when he returned to hospital from Sultan Puri,

he was wearing the same clothes which he was wearing at the time of

occurrence. However, the police did not seize his blood stained clothes.

29. From the above testimony of PW2 Rakesh, it appears that in the

examination-in-chief he has stated that the appellant Ramesh had snatched

the knife from the appellant Maheshwari Prashad and attacked Naresh with

the knife on his back, whereas in the cross-examination, he stated that he

had told the doctor as well as the police that Naresh had been injured by

Maheshwari Prashad. This is a clear contradiction. It is also important to

note that in the MLC Exhibit PW13/A pertaining to Pappu it is recorded -

"alleged H/o stab". The patient has been shown to be conscious. In other

words, PW3 Pappu was conscious, yet he did not give the name of his

assailant or at least the doctor did not note down the name. PW2 Rakesh

states that he had given the name of the assailant to the doctor but this does

not find mention in the MLC. Insofar as the MLC pertaining to the

deceased Naresh is concerned, the same is Exhibit PW16/A, where also the

following has been recorded:-

"alleged H/o assault (stab)".

Here too, there is no mention of the name of the assailant and what is also

of important is that the MLC records the patient as being conscious. Thus,

while PW2 Rakesh has stated in his testimony that he had given the name

of Maheshari Prashad as the assailant, the same does not find mention in

either of the two MLCs.

30. Another contradiction that has surfaced is that, according to PW2

Rakesh, he only took the injured Naresh to the hospital and not PW3

Pappu. However, the MLCs in respect of both Naresh and Pappu did

indicate that they had been brought by one Rakesh Kumar. Now, what is

intriguing is whether this Rakesh Kumar mentioned in the MLCs is the

same PW2 Rakesh? In the testimony of PW2 Rakesh, his name has been

given merely as Rakesh and not as Rakesh Kumar. Furthermore, PW2

Rakesh is the cousin of Naresh and is admittedly not related to PW3 Pappu.

However, in the MLC Exhibit PW13/A, the Rakesh Kumar referred to

therein has been shown to be the brother of Pappu. There is, therefore,

some doubt as to whether the Rakesh Kumar mentioned in the MLCs is the

same person as PW2 Rakesh.

31. This doubt is further heightened by the fact that the so-called blood

stained clothes of PW2 Rakesh were not seized by the police. The learned

counsel for the appellants had placed reliance on the Supreme Court

decision in the case of State of Rajasthan v. Teja Singh and Others:

(2001) 3 SCC 147, where the non-seizure of blood stained clothes were

found to have cast doubts on the presence of the witness. The Supreme

Court in the said decision observed as under:-

"The presence of the third eyewitness i.e. PW7, Amrao, is also doubtful because of the fact that even though she stated that she had lifted the body of the deceased which was bleeding and her clothes had become bloodstained, the investigating officer failed to recover the said clothes giving room to a genuine complaint that her presence is also doubtful."

32. We may point out that the learned Additional Sessions Judge had not

given much importance to this fact inasmuch as according to him, it was

clearly established that PW2 Rakesh had taken Naresh to the hospital and,

therefore, the fact that the blood stained clothes of PW2 Rakesh had not

been seized by the police was, according to learned Additional Sessions

Judge, immaterial. However, the learned Additional Sessions Judge, in our

view, went on a wrong premise. It has not been established for sure that it

was PW2 Rakesh himself who has been mentioned in the said MLCs.

There is doubt as to whether PW2 Rakesh was the very same Rakesh

Kumar who has been referred to in the said MLCs.

33. It is also clear from the cross-examination of PW2 Rakesh that his

statement was recorded by the police on 13.05.1995, that is, approximately

a month and ten days after the incident. PW2 Rakesh had also admitted in

his cross-examination that no statement was recorded prior to 13.05.1995.

This also casts a serious doubt on as to whether PW2 Rakesh was at all

present at the scene of the alleged incident.

34. There is also doubt as to whether PW2 Rakesh was an eyewitness

inasmuch as he has not given any particulars with regard to the assault on

Naresh. By this we mean that the said witness PW2 Rakesh has not

indicated the number of blows given by the assailant. Furthermore, while

in his examination-in-chief he has stated that it was the appellant Ramesh

who attacked Naresh with the knife, in his cross-examination, he has stated

that Naresh was injured by the appellant Maheshwari Prashad. This does

not appear to be the testimony of an eyewitness.

35. In view of the foregoing discussion, it is clear that the testimonies of

PW1 Bal Kishan and PW3 Pappu do not at all support the prosecution case.

Insofar as PW2 Rakesh is concerned, his testimony is not free from doubt.

There is no corroboration by any other independent witness. As such, it

would be dangerous to base a conviction on the doubtful testimony of PW2

Rakesh.

36. The benefit of doubt would, therefore, have to go to the appellants.

Consequently, the impugned judgment and order on the point of sentence

are set aside and the appellants are acquitted of all charges. The appeal is

allowed. The appellants are on bail. Their bail bonds stand cancelled and

the sureties are discharged.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J OCTOBER 31, 2012 SR