Jawahar Balwani And Anr vs State
2013 Latest Caselaw 5891 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment reserved on :12.12.2013
                                Judgment delivered on:20.12.2013

+      CRL.A.344/1998
       JAWAHAR BALWANI AND ANR
                                                        ..... Appellants
                           Through:   Mr. Mukesh Kalia, Adv.

                           Versus

       STATE
                                                       ..... Respondent
                           Through:   Mr.Sunil Sharma, APP

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 On 19.10.1993 on the second floor of house No. F-1U 173, Pitam

Pura, Delhi, the dead body of Rita was discovered. This discovery had

been made by her husband Madan Lal (PW-13) who on returning home

at 08:15-08:30 pm from his shop at Sadar Bazar found the lights in the

building off; on entering the room and switching on the light, he found

articles scattered on the ground; in the drawing room, the dead body of

his wife Rita was lying; the television was on at full volume; his son

Bharat Parwani (PW-6) was lying in an injured condition and was

groaning for water. He was not in a condition to speak. Brother of PW-

13 Raj Kumar (PW-9) living on the first floor also reached there.

Neighbours collected. Relatives of PW-13 also reached the spot. PW-13

sent PW-6 to the Sarvodya Hospital for medical aid; meanwhile the

police had also arrived.

2 The version of the prosecution was unfolded in the statement of

PW-6 (Ex.PW-6/A). This statement was recorded by Inspector

Mahender Singh (PW-15) after fitness of the patient had been obtained

on an application moved by him (Ex.PW15/A); PW-6 had been declared

fit at 10:30 pm. In his version (Ex.PW-6/A), it had been disclosed by

PW-6 that on the fateful day i.e. on 19.10.1993 at about 01:30 pm when

he was in the house with his mother and watching television, his two

cousin uncles i.e. Jawahar Balwani and Mahesh Balwani had come to

their house. His mother offered tea to them. The accused sat with them

for half an hour having discussions with his mother. Thereafter accused

Jawahar asked his mother to remove her ornaments; on her refusal, both

the accused persons caught hold of his mother as also of him; in the

course of this grappling, accused Jawahar snatched the gold chain which

his mother was wearing; Jawahar was armed with a scissor and he

started stabbing his mother with the scissor. His mother handed over her

bangles and ear tops to Jawahar. Several scissor blows were inflicted

upon his mother and upon him i.e. on his neck and abdomen. Accused

Mahesh also caused injuries to PW-6 on his left wrist with a blade. He

became unconscious and fell down on the sofa. At about 08:00 PM his

father came to the house; he was then removed to the hospital; he came

to know about the death of his mother several days thereafter. Further

deposition of PW-6 being that he remained in the hospital for about 15

days.

3 This was the eye-witness account of PW-6. Relevant would it be

to point out that the first information about the incident i.e. DD No. 46

(Ex.PW-22/A) had been received in the chowki of Pitam Pura at 09:15

pm informing them that a murder had taken place at the aforenoted spot.

The eye-witness account (Ex.PW-6/A) had then formed the basis of the

rukka (Ex PW-15/B) which was dispatched at 11:10 pm.

4 PW-9, the brother of PW-13 and the resident of the first floor of

the same building has corroborated the version of PW-13. He was the

brother-in-law of the deceased. He had returned back to the house along

with PW-13 at about 08:30-08:45 pm. Police had been informed.

5 Sri Chand (PW-10), a friend of PW-13 on learning about the

incident had also reached the residence of PW-13 at about 10:00-10:15

pm. The police was already present.

6 Amongst the police personnel, PW-15 accompanied by constable

Kamal Singh, constable Randip Singh and constable Vir Singh had

reached the spot. They met PW-13 who informed them that his son PW-

6 who had been injured had been admitted to Sarvodya Hospital at

Pitam Pura. Constable Randip Singh and constable Kamal Singh were

left at the spot. PW-15 reached the hospital where as noted supra after

obtaining fitness from the concerned doctor, statement of PW-6

(Ex.PW-6/A) was recorded. FIR (Ex.PW-1/A) was accordingly

registered under Sections 302/307/394/34 of the IPC.

7 Inspector P.S. Rana (PW-20) had also reached the spot at about

10:00 pm. On the second floor of the property, the dead body of Rita

was lying on the floor; blood was scattered; crime team was summoned.

Constable Ved Pal (PW-16), the crime team in-charge reached the spot

and from the scene of crime three chance prints were lifted from the

wooden almirah, locker of the steel almirah and a dibba. Three cups and

one steel glass found on the spot were also taken into possession vide

seizure memo (Ex.PW-9/C) and sent through HC Jai Om (PW-11) to the

Finger Print Expert for development of chance prints. This was

corroborated by SI Ravinder Singh Yadav (PW-5), the finger prints

expert who has deposed that he had received three tea cups and one steel

glass for development of chance prints. Accordingly five chance prints

were developed. The report of the finger prints expert has been proved

as Ex.PW-16/A; as per this report, the chance print found on the wooden

almirah matched with the right thumb impression of accused Jawahar

Balwani.

8 The blood stained sheet and chunni were also seized from the

spot. Site plan (Ex.PW-20/A) was prepared; thereafter the scaled site

plan (Ex.PW-21/A) was drafted by SI Manohar Lal (PW-21).

9 Constable Vikram Singh (PW-24) had taken 14 photographs of

the scene of crime of which two were washed away. The 12 photographs

which were developed were proved as Ex.PW-24/1 to Ex.PW-24/12 and

the negatives were proved as Ex.PW-24/13to Ex.PW-24/24.

10 Accused Jawahar Balwani was arrested on the same day from his

residence at A-11/92, Pitam Pura, Delhi; his disclosure statement

(Ex.PW-9/H) was recorded. Pursuant to his disclosure statement, he got

recovered his blood stained pant and shirt which had been seized vide

seizure memo Ex.PW-9/D.

11 Accused Mahesh Balwani was also arrested and his disclosure

statement Ex.PW-9/J was recorded. He got recovered his blood stained

pant and shirt which were taken into possession vide seizure memo

Ex.PW-9/F.

12 Both the accused on 20.10.1993 thereafter took the police party to

their office on the 4th floor at W.E.A. Karol Bagh where from the drawer

of a table, currency notes amounting to Rs.6,500/- and 17 jewellery

articles (Ex.P-1 to Ex.P-17) which included both gold and silver

ornaments were taken into possession and sealed in a pulanda; seizure

memo was proved as Ex.PW-9/K.

13 The sealed pulandas had been deposited with MHCM on

29.10.1993. The CFSL vide its reports Ex.PX and Ex.PY had detected

human blood of group „AB‟ origin on the pant and shirt of accused

Jawahar. No blood was found on the pant of accused Mahesh but human

blood without reaction was detected on the shirt of accused Mahesh.

14 Both the accused persons were medically examined. The MLC of

accused Jawahar was proved as Ex.PW-7/B; five injuries were noted

upon his person. The MLC of accused Mahesh was proved as Ex.PW-

7/A. Simple injuries on his left hand were noted.

15 The MLC of PW-6 was proved as Ex.PW-17/A; Dr. Jaya Kumari

who had examined the patient had since left the hospital and her

signatures had been identified and proved by the concerned record clerk.

As per this MLC, there were multiple injuries suffered by PW-6. It reads

as under:-

"History and physical examination:

10 years male with alleged L/o stab injury
O/I    Pallor +
       Conscious
       Multiple injuries on face, neck, forearm, wrist.
       "has two cuts on the neck
        Two small cuts on the abdomen
        One cut on the groin
        Five stab injuries at the back

Two cuts on the wrist all tender medias nerve and radial artery end."Orders and Treatment:

IVFs - Ringer lactale 1 Haemacoel 10 vac fast Patient shifted to O.T.

Stab wound sceleired Dressing done

Inj. Tetanus 0.5 Ml 1/mstal 6 units of whole blood transfusion"

16 The opinion on this MLC (Ex.PW-17/A) was „grievous‟; this

opinion had been proved by Dr. Sandeep Kumar Gupta examined as

PW-19.

17 The post-mortem upon the dead body of the victim was conducted

on 20.10.1993 by Dr. L.K. Barwa (PW-3). 23 injuries were noted upon

her body. They read as under:-

1. "Incised wound on right writ on its enterior aspect placed almost horizontally size 2 ½ inch x 1 1/3 inches bone deep.

2. Incised wound on right forearm on its dorsal aspect size 1.2 cms x 0.5 cms x skin to muscle deep.

3. Two incised looking wounds on the dorsal aspect of right arm on its upper part and at a distance of 3.5 cms placed obliqly. The individual size of injuries were 2 cms x 1 cm muscle deep and another 1.8 cms x 0.8 cms muscle deep.

4. Incise wound on the right cheek on its lateral aspect size 5.cms x 3. Cms muscle deep.

5. Brouse over upper part of the bride of nose size 2.5 cms x 2 cms.

6. Scattered abrasions over front of the neck and also on the sides involving an area of 10 cms x 13 cms. There were linear crescentic abrasions resembling nail marks were seen on the right side of the neck size 1 cm to 1.2 cms in length and 0.1 cm to 0.2 cm in width.

7. Incise wound on the right side of chest size 1.8 cm x.02 cms in width.

8. Incise wound on the right side of chest 3 cms above and medial to the right nipple of the size 1.8 cms x 0.5 cms x muscle deep.

9. Incise wound in the epigastic region size 1.8 cms x 1 cm.

10. Incise wound on the right angle of chest on its lower part size 1.5 cms x 1 cm.

11. Incise wound on the right posterior axillary fold size 2 Cms x 1 cm.

12. 20 nos of incise wounds on the back of neck involving an area of 13 cms x 10 cms individual sizes of the injuries varied from 1 cm to 1.5 cm.

13. 2 incise wound size 1 cm x 0.5 cm and other 1 cm x0.8 cm were seen on the right shoulder blade of muscle deep only.

14. 2 incise wounds on the back of chest size 1.3 cms and 1.6 cms both were muscle deep.

15. 6 numbers of incise wounds on the back of abdomen 2 on the right side and four on the left side of the mid line. The individual sizes varied from 1.5 cms to 1.8 cms in length and depth.

16. Incise wound on the right buttack size 1 cm x 0.5 cm x muscle deep.

17. 2 incise wounds size 1.8 cm and other 1.7 cm on the right buttack and muscle deep.

18. Incise wound on the right thigh size 2.5 cm x 1 cm muscle deep.

19. Two incise wounds on the back of left thigh 1.5 cm and the other 1.3 cms muscle deep only.

20. Incise wound on the back of left leg on a cough size 2 cms x 1 cm muscle deep.

21. Incise wound on the right knee on its medial aspect size 1.5 cm x 1 cm muscle deep.

22. Incise wound on the left little finger size 1.6 cm x 0.8 cms muscle ldeep.

23. Incise wound size cms x 05.cms muscle deep just above left eye-brow.

On internal examination the right side front of neck underneath the abrasions showed small amount of cloted blood in the sub cutaneous tissues but no blood clot was seen on deeper neck tissues. Hyoid bone was intact thyrod crecoid curtelageous normal. Tracheal rings intact. Injury No.7 had entered the chest cavity and had cut the right lung. Total depth of this injury was 5 cm. Injuly No. 11 was only muscle deer. Injury No. 10 had entered the chest cavity and had cut the right lung total depth of this injury was about 6 cms. Injury No. 8 had entered the abdominal cavity and had cut the stomach. Total depth was about 8 cms. Injury No. 14 had six wounds out of which 2 were on the right side and four on the left side.

The injuries on the right side out of two one had entered the abdominal cavity and had cut the right kidney. Out of four wounds on left side two had entered the abdominal cavity and out of two one had cut the intestine. The total depth of this injury which were placed on the left side were approximately 8 to 9 cms.

The stomach was full of semi digested food. The rectum was empty. Utrex was empty. On the local examination of injury No. 1, it had cut the right side major blood vessel of the wrist.

Opinion: All the injuries were anti-mortem in nature. Incise wounds were caused by sharp weapon. Injury No. 1, 7, 8 & 14 individually and other collectively were sufficient to cause death in ordinary course of nature. Death was due to haemorrahagic shock resulting from injuries. Time since death was about 21 hours. The sample of blood, cloth as were preserved, sealed and handed over to police,. The nails of the deceased were also preserved. My detailed report is Ex.PW-3/A. At the time of conducting post mortem examination an application was received from inspector P.S. Rana SHO Shalimar Bagh on 20.10.1993 for conducting post mortem examination on the dead body of Smt. Reeta which is Ex.PW-3/2, along with 10

other papers which were all initiated and numbered by me and handed over to police along with the post mortem report. "

18     This in brief is the version of the prosecution.

19     In the statement of the accused recorded under Section 313 of the

Cr. PC their submission was that they have been falsely implicated in

the present case. Both of them are innocent. PW-13 Madan Lal was not

on cordial terms with his wife Rita as he was suspecting his wife‟s

fidelity with Jawahar which was a bone of contention; PW-13 had also

borrowed money from Mahesh Balwani. PW-13 in order to take revenge

had got this false case planted upon the accused. No recovery had been

got effected by the accused persons from the 4th floor of Karol Bagh i.e.

either of the ornaments or of any cash. The entire case is fabricated.

20     No evidence was however led in defence.

21     Arguments have been addressed at length by the respective

parties.

22     On behalf of the appellants, learned counsel Mr. Mukesh Kalia

has made his submissions. His submission is that there are six

incriminating pieces of evidence which the prosecution had gathered

against them. Submission being that he would like to deal with each one

of them separately. The first argument being bordered on the submission

that the first piece of evidence against the accused is the eye-witness

account of PW-6. Submission being that PW-6 being a child was a

tutored witness; the occurrence had taken place at 01:30-02:00 pm; the

father had reached home at 08:00-08:15 pm; there is no explanation as

to why the first information about this incident had reached the local

police station at 09:15 pm and that too after more than one hour after the

father returned home. This was a highly unnatural conduct on the part of

the father. PW-6 was fit to give his statement in the hospital as the

injuries suffered by him were only superficial injuries but why he did

not report the incident to any relative or to any neighbour and waited up

to 10:30 pm to give his version clearly throws a doubt on the veracity of

this version of the prosecution. The whole story was cooked up. This

elongated time gap remained unexplained. There is no discharge record

of PW-6 to show that he remained in the hospital for 15 days; PW-6 had

in fact been discharged on the next date itself as he had suffered only

superficial injuries; this is amply substantiated by the fact that he has

given his statement at 10:30 pm on the same day when he remained

medically unattended for more than eight hours i.e. between 01:30 pm

(time of the incident) up to 10:00 pm. The defence of the appellants is

substantiated not only by the fact that this defence has been taken right

from the inception i.e. from the cross-examination of PW-6 and

continued right up to the stage when their statements under Section 313

of the Cr.PC were recorded; defence being consistent; that PW-13 was

nursing a grudge against Jawahar because he suspected illicit relations

of his wife with him and that is why he has been falsely implicated; it

was a pure case of dacoity. This is further substantiated by the fact that

PW-13 had got remarried within less than three months from the date of

the death of his wife. The motive for the crime is also not decipherable.

The accused are well to do persons. They would not go to the house of

their cousin to commit a robbery of Rs.6,500/- and gold ornaments; it is

also not the version of the prosecution that the accused were in need of

money; no enmity or grudge of the accused with the deceased or her

family has also been spelt out. In this background, the defence of the

accused becomes all the more relevant. Attention has been drawn to the

version of PW-6; submission being that his version on the identity of the

accused is doubtful. He did not even know their names but how the

names of the accused have appeared in Ex.PW-6/A is a mystery; it was

only on the tutoring of the father. Thus the non-holding of TIP was fatal.

The version of PW-6 on the identity of the recovered gold ornaments is

also hearsay. He was not aware of any detail of the ornaments of his

mother; his cross-examination has evidenced the improvements made by

him on this score. The weapon of offence i.e. scissor has not been

recovered. The blade has also not been sent for the expert opinion to

connect it with the injuries suffered by the deceased. There is also no

evidence that the specimen thumb impression i.e. S-1 was of Jawahar

Balwani; there is neither any oral and nor any documentary evidence to

this effect. The whole story has been concocted to frame the accused

persons.

23 Arguments have been rebutted by the learned Public Prosecutor.

It is pointed out that the eye-witness account of PW-6 can in no manner

be faulted; he was a natural witness in the house whose presence cannot

be doubted. He had identified the appellants as his assailants. On no

count, his testimony is dented. The recovery of the jewellery and other

articles pursuant to the disclosure statement of the accused also stood

fully established showing the connectivity of the accused with the crime.

The Finger Print Bureau had also opined that the finger impression of

Jawahar Balwani matched the chance prints which had been picked up

from the scene of crime. Another piece of corroborative evidence was

the recovery of blood stained clothes of the accused for which they have

no answer. Neither did they have any answer and nor could they explain

the injuries suffered by them. The defence of the accused on all counts is

to be ignored. They have not been able to establish their defence; merely

giving suggestions would not dent the otherwise well established

version of the prosecution. Since the assailants were known to PW-6

being their relatives, the question of holding TIP also did not arise. The

impugned judgment does not call for any interference.

24 We have perused the record and have heard the submissions of

the respective parties.

25 There is an eye-witness account. The eye-witness account is of

Bharat Balwani (PW-6). He is the son of the victim. As per his version,

he had witnessed the incident. In fact as noted supra, it was this

statement of PW-6 (Ex.PW-6/A) which had become the basis of the

rukka pursuant to which the investigation had been initiated. He was 13

years of age on the date of the incident. He came to the Court to give his

statement on oath five years later; the witness was then aged 17 years.

He has fully corroborated his version as stated by him in Ex.PW-6/A.

His testimony is to the effect that he was living with his parents on the

second floor of house No. F-1U 173, Pitam Pura, Delhi. On 19.10.1993

while he was present at home along with his mother and watching

television at about 01:30 pm, his two cousin uncles i.e. the accused

persons (present in Court and correctly identified by the witness) had

come to their house. His mother offered tea to them. They had a

discussion for about half an hour concerning the family matters.

Thereafter Baby (alias Jawahar) asked his mother to handover her

ornaments that she was wearing; on her refusal, he along with co-

accused caught hold of his mother as also of PW-6; in the course of their

grappling, the gold chain worn by his mother was snatched by Baby; he

then took out a scissor and started stabbing his mother who received

injuries on her chest, neck and abdomen; he also stabbed PW-6 on his

neck and abdomen. The co-accused who was the elder brother of Baby

(Mahesh) inflicted injuries on his wrist with a blade. His mother was

coerced to hand over her jewellery i.e. her ear tops and bangles to the

accused. Thereafter PW-6 become unconscious and fell down on the

sofa. At about 08:00-08:15 pm when his father came to the house, he

was removed to the hospital. His statement Ex.PW-6/A was recorded. In

Court this witness has identified the bangles, gold chain and ear tops

worn by his mother at the time of incident as Ex.P-1 to Ex.P-5. He also

identified the other ornaments i.e. gold bangles and silver anklets which

had been taken away by the accused as Ex.P-6 to Ex.P-17. He further

stated that he remained in the hospital for about 15 days.

26 In his lengthy cross-examination, he admitted that his father had

not accompanied him to the hospital but had arranged for a car to take

him to the hospital. He was confronted with various portions of his

earlier statement (Ex.PW-6/A) but no material contradiction has been

pointed out by the learned defence counsel or has been noted by the

Court. In Court, the witness while describing the incident has used the

word „grapppling‟ which did not find mention in Ex.PW-6/A; this has

been highlighted as an improvement. However, the gist of Ex.PW-6/A

does not in any manner vary with the version given by PW-6 on oath in

Court.

27 PW-6 admitted that he cannot tell the weight of the bangles worn

by his mother and nor was there any specification mark on the bangles;

such kind of jewellery is easily available in the market. Vehement

submission of the learned defence counsel on this score being that no

TIP of these ornaments having been conducted prior to this incident,

these articles are planted upon the accused.

28 This Court does not agree with this submission. It impossible to

imagine that a 13 years old child of the victim would know the weight of

the bangles worn by his mother; the answers to these irrelevant

questions even if evasive have no bearing on the identification which

was specifically done by PW-6 who at the time of the incident had seen

his mother wearing these bangles; moreover the child living with his

mother could very well recognize these ornaments worn by his mother

which were her everyday apparel. The victim had become unconscious

after he had been attacked. Ex.PW-6/A in this scenario rightly did not

contain the details of the missing valuables; this only became known to

PW-6 in the course of investigation.

29 It is also not as if these ornaments were not identified by any

other person; PW-13 the husband of the victim had identified all these

articles as well. He has specifically stated so in his deposition. This part

of his testimony shall be discussed in detail in a later part of the

judgment.

30 Reverting back to the cross-examination of PW-6, he has

admitted that he had not visited the house of the accused person and he

does not know their residential address except for the fact that they are

residing in Delhi; he does not know whether they are residing separately

or together or whether they are married or unmarried. These questions

had obviously been elicited from the witness to advance the argument as

propounded by the learned defence counsel that the identity of these

persons is in dispute and the witness did not know these persons.

31 This submission of the learned defence counsel is bereft of any

merit. As early as 10:30 pm when PW-6 had been declared fit for

statement, his statement had been recorded by the Investigating Officer;

in Ex.PW-6/A, PW-6 has described the assailants as his cousin uncles

i.e. cousin brothers of his father; their names Jawahar Balwani and

Mahesh Balwani had also been mentioned. In one part of his cross-

examination PW-6 has in fact admitted that these names were told to

him by his father; he knew the nick name of Jawahar being Baby and he

also knew that Boby „s co-accomplice was his elder brother whose name

his father had revealed to him as Mahesh. The witness was absolutely

truthful on this count. Since the accused persons were known and could

be recognized by PW-6, question of holding TIP did not arise. Merely

because the other details i.e. their residence or family status were not

known to PW-6 does not wash away this part of his testimony. In his

sustained cross-examination, he had stuck to his stand. He denied the

suggestion that he had been tutored either by the police or by his father

to depose falsely. He further denied the suggestion that a dacoity had

taken place in their house; he denied the suggestion that his father was

suspecting his mother having illicit relations with Jawahar Balwani or

that Mahesh Balwani owed money to his father and this statement has

been given falsely at the instance of his father only to implicate the

accused.

32 PW-6 is admittedly the only eye-witness. He is a child. Trite it is

to say that the evidence of a child should be viewed with care and

caution as a child is susceptible to be swayed and can easily be tutored.

Each case has to be adjudged in its own background. Under Section 118

of the Evidence Act, 1872, every witness is competent to depose unless

the Court considers that he is prevented from understanding the

questions put to him and from giving rational answers by reason of

tender age; the disease whether of body or mind or any other cause of

the same kind. In this context, the Apex Court in AIR 1952 SC 54

Rameshwar Vs. The State of Rajasthan had observed as under:-

".... It is desirable that Judges and magistrates should always record their opinion that the child understands the duly of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate..." 33 A preliminary round of questions had been put to PW-6 before the

Court concluded that the witness was able to comprehend and

understand the questions which were put to him. It must also be

remembered that this witness was 17 years of age at the time when he

came into the witness box; he was aged 13 years at the time of the

incident. He had entered his teens; he was in eighth standard studying in

the Rukmani Public School; his sensibilities and mental faculties were

developed. There was also a gap of about five years in his first statement

and his testimony on oath in Court. It is in this background that the

testimony of PW-6 has been examined.

34 PW-6 has detailed the incident in the manner in which it had

occurred. The incident had taken place between 01:30-02:00 pm.

Because of the multiple stab wounds that his mother and he himself had

received at the hands of the accused, he had become unconscious. He

did not really know the fate of his mother and in fact has stated that he

learnt about her death only 4-5 days later. He himself remained in the

hospital for about 10-15 days. A perusal of his MLC (Ex.17/A)

substantiates that 23 injuries had been suffered by him. He had

undergone emergent surgery and six units of whole blood had been

transfused into his body. Further version of PW-6 shows that there was

no telephone at his residence. Even if he wanted, he could not have

contacted any person. PW-13 came home at 08:00 pm and found the

television on at full volume; PW-6 was not even in a condition to get up

to switch off the T.V.; PW-13 on reaching home found PW-6 lying on

the sofa groaning with pain and asking for water. The impact of the

multiple stab wounds suffered by him was so great that he did not even

know the fate of his mother. The incident had occurred at 01:30 PM but

PW-6 right up to 08:00 pm (when his father came home) was not in a

position either to get up or report the incident to any person.

35 This version of the prosecution has been heavily assailed by the

learned defence counsel. Submission on this count being that it is

impossible to imagine that the victim lay in pain for so many hours

bleeding profusely, and, yet he did not inform his uncles who were

living on the ground and first floors. Submission being that the whole

case has been planted and the first statement (Ex.PW-6/A) recorded of

PW-6 after 10:30 pm was motivated and fabricated; this was to gain

time; the 8-8 ½ hours delay has not been explained; it was in this

intervening period that the father of PW-6 namely PW-13 had fabricated

this entire version to falsely implicate the accused persons for the

reasons as suggested to PW-6 in his cross-examination.

36 These submissions of the learned defence counsel are not borne

out from the record. The scene of crime as built up in the narration of

PW-6 which is substantiated by the medical record clearly establishes

that PW-6 had received several stab wounds; his MLC reflecting that six

units of blood had been transfused into his body and had been shifted to

the O.T. for an urgent surgery establishing that the victim had lost a lot

of blood by that time. Even presuming that PW-6 was in a position to

get up from the sofa where he had fallen unconscious, there was no

immediate mode of communication which he could use to inform any

person. That apart the fact that he could not get up from the sofa has

been substantiated by PW-13 who had stated that when he returned

home at 08:00-08:15 pm he found PW-6 lying on the sofa writhing and

crying with pain. It is obvious that in this intervening period, PW-6 was

not in a position either physically, mentally or emotionally to report this

incident to any person. Argument on this count is bereft of force.

37 Testimonies of PW-6 corroborated by PW-13 and of the

Investigating Officer (PW-15) as also the medical evidence (Ex.PW-

17/A) where the injures have been opined as „grievous‟ and there being

no cross-examination on this aspect, the version of the prosecution that

PW-6 was confined to the hospital to get his injuries treated for a period

of 10-12 days also goes un-rebutted. Thus the absence of the discharge

record of PW-6 does not in any manner advance the version of the

defence that his injuries were superfluous.

38 In this background, the defence of the accused that PW-6 was a

tutored witness and there was ample time with his father to have tutored

his child up to 10:30 pm when he finally gave his statement is

completely devoid of any merit. There is no embellishment or

improvement in the version of PW-6 on oath in Court qua his version

Ex.PW-6/A. Having evaluated his deposition carefully, this Court is of

the view that PW-6 is a wholly reliable witness.

39 PW-13, the father of the victim has corroborated the testimony of

PW-6. He had reached home at 08:00-08:15 pm from his shop at Sadar

Bazar. The lights in the building were switched off; he put on the lights.

He saw articles lying scattered all over; on opening the drawing room,

he found the dead body of his wife Rita lying on the ground. He heard

the groaning of his son calling him „papa‟; the television was on at full

volume; his son was in an injured condition; he asked for water. On

inquiry, PW-6 could not narrate the incident to him. PW-13 came

down. His neighbours and relatives gathered there. He sent his son for

medical aid to the Sarvodya Hospital which was about one kilometer

away. PW-13 was in a state of shock.

40 In cross-examination, Ex.PW-13/A was confronted to him.

Relevant would it be to point out that Ex.PW-13/A is not the statement

of PW-13 recorded under Section 161 of the Cr.PC; it is an inquest

report. Section 145 of the Evidence Act permits confrontation to a

witness of his earlier statement; Ex.PW-13/A is not an earlier statement.

It is only an inquest report in which the version of PW-13 has been

noted. Even presuming that Ex.PW-13/A is permitted to be read as an

earlier version of PW-13, the version given in this report can in no

manner be termed as an „improvement‟. It has been put to the witness

that in Ex.PW-13/A, he had not stated that his child had asked for water

and he had given it to him. Ex.PW-13/A clearly stated that his son was

in pain; he could not talk also because of the scare; it is the gist of

Ex.PW-13/A which has to be noted to answer the submission of the

learned defence counsel as to whether his subsequent statement on oath

in Court amounts to an „improvement‟ or not. In another part of his

cross-examination, PW-13 has admitted that he knows the accused

persons as they were related to him. He however did not know the

business which was carried out by them; he explained that his son was

removed to the hospital in a neighbour‟s vehicle but he does not

remember his name; he could not recollect if his friend (PW-10) had

arrived first or the police; he had not accompanied his son to the

hospital. He denied the suggestion that he suspected the fidelity of his

wife with Jawahar Balwani or that he had borrowed money from

Mahesh Balwani and this was the reason as to why they have been

falsely implicated in the present case and this was simplicitor a case of

dacoity.

41 These highlighted versions of PW-13 do not amount either to an

embellishment or a material improvement to dislodge his version.

Testimony of PW-13 being consistent and corroborative of the version

of PW-6 is also cogent and credible.

42 However, the testimonies of PW-6 and PW-13 to a large extent

establish the submission of the learned defence counsel that the details

of the stolen jewellery and the ornaments had not been given to the

police by either of the aforenoted witnesses and they being the most

close relatives of the victim. In the absence of any such details, the

jewellery recovered and seized vide memo Ex.PW-9/A cannot be read.

43 A perusal of this recovery memo shows that this document has

been attested by the two relatives of the victim i.e. PW-9 and PW-10.

Both the aforenoted witnesses had accompanied the accused along with

the police party at the time of the recovery of these jewellery articles.

This was pursuant to the disclosure statements of the respective accused

proved as Ex.PW-9/H and Ex.PW-9/J.

44 PW-9 on oath in Court had in Court identified the jewellery

belonging to his bhabhi which comprised of two gold karrahas, two gold

bangles, two golden chains, one pair of ear tops, one golden ring, one

silver ring, one pair of pajeb and one manglesutra (Ex.P-1 to Ex.P-7).

He had also identified three packets of currency notes in the

denomination of Rs.5, Rs.10 and Rs.100 totalling a sum of Rs.6,500/-

which has also been recovered from the same place.

45 PW-9 was cross-examined at length. He admitted that in his

statement to the police he had not given the details of the currency notes

and jewellery; he could not tell the weight of the jewellery; he admitted

that there was no special mark of identity on any item of the jewellery.

He was confronted with his earlier statement (Ex.PW-9/DA) where there

was no mention of these jewellery articles belonging to his bhabhi;

vehement submission of the learned defence counsel on this score being

that this is a material improvement; the jewellery has been planted upon

the accused; there is also no evidence to connect this 4th floor

accommodation at W.E.A. Karol Bagh as belonging to the accused.

46 Relevant would it be to state that no suggestion has been given to

the witnesses on the score that this office space at W.E.A. Karol Bagh

was not the office space of the accused.

47 The second witness to the recovery of the ornaments and

jewellery articles was Sri Chand examined as PW-10. He was a distant

relative of the victim. He learnt about the incident from PW-9. He had

reached the hospital and then came back to the spot. Qua the recovery of

the jewellery and ornaments, this witness has deposed that both the

accused persons pursuant to their disclosure statements had led the

police party to their office at Karol Bagh where after opening the lock of

the office, a packet from the drawer of the table was taken out which

contained Rs.6,500/- and jewellery articles. He had corroborated the

version of PW-9 qua the number and details of the articles as also the

denomination of the currency notes.

48 In his lengthy cross-examination, he was confronted with Ex.PW-

10/DA. He admitted that it was night at the time when the recovery was

effected from the office but there was light in the building; they

remained in the office for about 30 minutes. This witness either has also

not been given any suggestion that this office space did not belong to the

accused persons.

49 PW-20, the Investigating Officer was also a witness to the

aforenoted recovery. He had in fact recorded the disclosure statements

of the accused pursuant to which the recovery of these articles had been

made. He has categorically stated that the accused persons had taken the

key of the lock and after opening the same, they had entered the office.

He has also described the articles of recovery. This witness has also not

been cross-examined on the aspect that this office did not belong to the

accused persons or that it was nor opened with the key produced by

Jawahar Balwani. In another part of his cross-examination PW-20

admitted that he did not record the statement of PW-9 about the proof of

ownership of these ornaments and no such document has been collected

from PW-13 either; he admitted that these ornaments are easily available

in the market; no TIP of the aforenoted articles had been conducted.

50 The evidence which has thus come on record qua the recovery of

the aforenoted articles i.e. (Ex.P-1 to Ex.P-17) is that details of these

articles were not given by any of the PWs i.e. either by PW-6 or PW-13

(who were probably the best witnesses to give such details being the

husband and son of the victim) or by PW-9 and PW-10 who were the

witnesses to this recovery.

51 The answer to this is simple. It was for cogent and plausible

reason that at the time when this recovery had been effected, which was

on (20.10.1993), none of the witnesses i.e. either PW-6, PW-9, PW-10

or PW-13 knew the details of the articles which had been robbed or

stolen. PW-6 was still in hospital; PW-13 was in a state of shock; the

post mortem on his murdered wife (conducted on the same day i.e.

20.10.1993) was yet not complete. It was only when the recovery had

been effected and these items were seen by PW-13, PW-6 and PW-9

that they were identified as the articles belonging to the victim.

52 The seizure memo Ex.PW-9/K shows that the currency notes

were recovered from a plastic bag upon which „Áhuja Vastra Bhadar‟

had been imprinted. The jewellery articles were recovered from a

jewellery purse upon which „Hazari Lal Kailash Chand, 687, Sadar

Bazar‟ had been imprinted. PW-13 was also running his business of

„Madhu Thread Works‟ from a shop at Sadar Bazar. Moreover, the

articles recovered were everyday items; i.e. chain, ear tops, manglesutra

and silver anklets. PW-6 and PW-13 being the son and husband of the

victim had in their everyday life, in routine, seen these jewellery items

and could thus easily recognize them as belonging to the victim. It is a

matter of common knowledge that family members can identify the

belongings which are in use by the other close members of their family.

In this background, even if the TIP of the articles was not conducted, the

recovery on this ground alone cannot be disbelieved.

53 The reason for the details not having been described by the

witnesses has already been explained and answered.

54 Thus there is no merit in this contention of the learned defence

counsel that the identity of the articles of stolen property could not be

relied upon for want of a proper test identification. There is no such

legal requirement either.

55 In AIR 1983 SC 446 Earabhadrappa Vs. State of Karnataka) the

Supreme Court had inter-alia noted:-

"Our attention was drawn to the testimony of P.W. 13 Narayanareddy who, during his cross-examination, stated that ornaments similar to the gold rope chain and the pair of gold bangles were available everywhere and that other ornaments were also in his house. From this it is sought to be argued that the seized ornaments cannot be treated to be stolen property as they are ordinary ornaments in common use. Nothing really turns on this because P.W. 2 Smt. Bayamma, mother-in-law of the deceased, her husband P.W. 3 Makarappa and son P.W. 4 G.M. Prakash have categorically stated that the seized ornaments belonged to the deceased Smt. Bachamma. There is no reason why the testimony of these witnesses should not be relied upon particularly when P.W. 2 Smt. Bayamma was not cross-examined at all as regards her identification of the seized ornaments and clothes as belonging to the deceased. ....... There is no merit in the contention that the testimony of these witnesses as regards the identity of the seized articles to be stolen property cannot be relied upon for want of prior test identification. There is no such legal requirement."

56     Identity of the articles stands established.

57     After the arrest of the accused, pursuant to their disclosure

statement both the accused persons had also got recovered their blood

stained clothes from their respective houses. Jawahar Balwani had got

recovered a pant and a while coloured shirt from under the bed in his

bedroom in House No. AU-92, Pitam Pura which was seized vide memo

Ex.PW-9/E upon which the CFSL vide its report Ex.PX had opined

human blood of „ÁB‟ origin. The blood stained clothes i.e. pant and

shirt of accused Mahesh Balwani had been seized from the almirah of

his bedroom of house No CB-30A, Shalimar Bagh on which human

blood was detected on his shirt. This was also affirmed by the CFSL

Both these recovery memos had been attested by PW-9 and PW-10 who

had stuck to their stand in their respective depositions that the

aforenoted recoveries had been made in their presence. PW-9 in his

cross-examination was confronted with his earlier statement recorded

before the police Ex.PW-9/D1. Attention has been drawn to various

portions of his cross-examination to point out that the credibility of this

witness is tarnished as he had made improvements in his version on oath

in Court. It has been pointed out that in his deposition on oath in Court,

he had stated that the clothes had been concealed under the bed whereas

this did not find mention in his statement Ex.PW-9/D1.

58 PW-10 has also been cross-examined on the same lines. He was

also confronted with his earlier version Ex.PW-10/DA. He stuck to his

stand.

59 In neither version any material contradiction has been pointed out

to discredit their versions qua this recovery. These are additional links in

the incriminating circumstances against the accused.

60 Constable Ved Pal (PW-16) along with his crime team in-charge

SI Bhim Singh had reached the spot. Apart from the photographs taken

of the scene of crime, three chance prints were also lifted from a wooden

almirah, locker of the steel almirah and one dibba. Three tea cups and

one steel tumbler had also been seized and sent to the Bureau through

HC Jai Ram (PW-11) vide certificate No. 76/21 for development of

further chance prints; five chance prints were further developed. Report

(Ex.PW-16/A) shows that these questioned prints along with the

specimen thumb impression of the accused were sent to the Finger Print

Bureau who vide its report Ex.PW-23/A (28.03.1994) had opined that

Q-1 (the print lifted from the almirah) was identical with S-1 (right

thumb mark on the finger impression slip of Jawahar Balwani). The

other prints being partial were unfit and no opinion could be given

regarding these prints.

61 The argument of the learned defence counsel in this context being

that there was no evidence as to who had taken S-1 i.e. the specimen

finger impressions of accused Jawahar and whether if at all it was his

specimen.

62 Record shows that the finger impressions of both the accused had

been obtained on two respective sheets of paper. This was in the course

of investigation. These documents had been sent by the Investigating

Officer (PW-23) to the Director Finger Print Bureau vide

Ex.PW-23/DC. Ex.PW-23/DC was the letter accompanied by two other

documents. This is evident from the recording of the document itself

which specifies that it is in three pages. The two accompanying pages

were the specimen finger/thumb impressions of Jawahar Balwani and

Mahesh Balwani. The back page of both these documents clearly spells

out the names of both these persons. The letter also specifies that the

specimen impressions of Jawahar Balwani @ Baby and Mahesh

Balwani were sent to the Finger Print Bureau for a comparison with the

chance prints. These specimen finger impressions of both the accused

were taken in the course of the investigation. This was legally

permissible; there is no bar to such specimens being used by the

Investigating Agency. This is under Sections 4 and 5 of the

Identification of Prisoners Act, 1920. This has been held by a full Bench

of this Court while deciding Crl. Appeal No. 1005/2008 Bhupinder

Singh Vs. State. Argument of the learned defence counsel on this score

is thus without merit; it is rejected.

63 There is also no dispute to the proposition that a report regarding

finger prints by the Finger Print Bureau under Section 510 of the Code

of Criminal Procedure can be used in evidence in any inquiry or trial

without examining the person who gave the report in the same way as

the report of the Chemical Examiner or of the Chief Chemical

Examiner. The Supreme Court in this context in AIR 1972 SC 975

Himachal Pradesh Administration Vs. Om Prakash had been pleased to

pass the following observations:-

"The reason why the reports of the Director of the Finger Print Bureau is treated as evidence without examining the persons giving the report is that the comparison and identification of Finger Prints has now developed into a science and the results derived therefrom have reached a stage of exactitude. As long as the report shows that the opinion was based on observations which lead to a conclusion that opinion can be accepted, but should there be any doubt it can always be decided by the calling of the person making the report; when once the report is

proved; neither the prosecution nor the accused nor yet the Court thought it necessary to require the person making the" report to be examined. In this case, however, the photographs of the finger prints were taken on the very day when the flask and the glass pane were seized."

64 Identity of Q-1 with S-1 had become another piece of clinching

evidence against accused Jawahar Balwani.

65 The accused after their arrest had been subjected to a medical

examination. The MLC of Jawahar Balwani was proved as Ex.PW-7/B.

Following five injuries were noted on his person:-

"1.Abrasion left side face near left ear brownish discolouration of the wound and no bleeding was present.

2.Abrasion left side neck three in number one inch below left ear ½ inch x ¼ in size and brownish discolouration was there wound was dried and no bleeding was present.

3. Lacerated wound right little finger proximately x ½ inch x ¼ inch deep to the skin layer and healthy discharge from the wound was present.

4.Lacerated wound middle part left little finger borsal aspect ½ inch x ¼ inch deep to the skin layer and there was healthy discharge from the wound.

5.Abrasion near nose x ¼ inches, the wound was dried and brownish discolouration was present. Duration of all the injuries was from 20 to 24 hours and all the injuries were caused by blunt object or blunt edge of the scissors as history given that the patient was attacked with the scissors. "

66 On a specific query put to the accused in his statement under

Section 313 of the Cr.PC on this incriminating piece of evidence, the

answer was a mere „it is incorrect‟. Document Ex.PW-7/B was prepared

by the Chief Medical Officer of the civil hospital; it was proved by Dr.

K. Malvian (PW-7). He was an independent witness. That apart

Ex.PW-7/B is a public document given by a recongnized public

hospital; there was no occasion whatsoever for either the hospital or the

doctor to have made a wrong report.

67 So also is the position qua the medical report of accused Mahesh

Balwani. His MLC has been proved as Ex.PW-7/A. The injuries upon

his reason read as under:-

"One linear abrasion half inch x 1/4th size dry and brownish discolouration and no fresh bleeding present duration of the injury 20 to 24 hours and injury was simple caused by blunt object."

He had also suffered simple injuries by a blunt object. When this

incriminating piece of evidence was put to the accused, his answer was

the same as of his co-accused which was „it is incorrect‟.

68 Ex.PW-7/A and Ex.PW-7/B being independent pieces of evidence

cannot be disbelieved. These injuries were caused in the course of the

tussle which took place between the parties. The accused have been

unable to explain these injuries. The eye-witness account of PW-6 on

the other hand squarely answers and explains as to how the accused had

received these injuries.

69 The Apex Court in AIR 2001 SC 2977 Gurmit Singh Vs. State of

Punjab had an occasion to examine this position. It had noted that under

Section 105 of the Evidence Act even if the right of self-defence was

available to an accused, the burden of proving that the act of the accused

was protected as being one done under the exercise of the right of

private the defence lay on the accused. There is no such defence

forthcoming. Both the accused on this incriminating piece of evidence

have given a mere denial. The eye-witness account (PW-6) and the

medical documents (Ex.PW-7/A and Ex.PW-7/B) cannot be disbelieved.

These injuries upon the accused had occurred at the time of the

occurrence.

70 The post-mortem of the deceased has been proved as Ex.PW-3/A.

A perusal of the 23 stab wounds upon the victim and the opinion of the

doctor on the cause of death show that all these injuries besides being

ante-mortem were caused by a sharp weapon. Injuries No. 1, 7, 8, 10

and 14 were individually and collectively sufficient to cause death in the

ordinary course of nature. The blade (seized vide memo Ex.PW-9/A)

was found lying on the spot. The scissor could not be recovered.

However the eye-witness account of PW-6 on the use of the scissor and

the blade already stands established. The medical evidence also

corroborates this version; wounds were caused by a sharp edged

weapon. The MLC of PW-6 shows that PW-6 had suffered multiple and

repeated injuries on his face, forearm and wrist. PW-6 had fallen

unconscious on the sofa. He was bleeding profusely. He did not even

know the fate of his mother. The accused persons presumably thought

that PW-6 has also been done to death.

71 The aforenoted discussion also answers the query of the learned

defence counsel that as to why the accused persons would have left an

eye-witness alive had they been the actual assailants. The accused

person had thought that they had killed PW-6 as well. Unfortunately for

them, he was saved.

72 The common intention on the part of the accused to have

committed the crime is evident. They had both come together; they were

in position of trust qua the victims being the cousin uncles of PW-6 and

the brother-in-law of the deceased. Their entry was friendly; they in fact

had a discussion for about half an hour before the gruesome act was

committed. The role of Mahesh was no less than that of Jawahar.

73 Motive for the crime has not really surfaced. It could be a

robbery; the thumb impression of Jawahar Balwani (proved by scientific

evidence) on the wooden almirah could only be with the purport to

commit robbery; presumably the almirah contained valuables. The

version of the prosecution on all other counts stands proved. The

absence of motive in such a case may thus not become irrelevant.

74 The Apex Court in AIR 1973 SC 55 Shivji Genu Mohite v. State

of Maharashtra in this context had held:-

"In case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye- witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy.

19. It is settled legal proposition that even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct

evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only by the reason of the absence of motive, if otherwise the evidence is worthy of reliance."

75 Under criminal jurisprudence if the defence propounded by the

accused is able to dent the version of the prosecution, it may demolish

the version of the prosecution. However, this is not so in the instant

case. The offence is of the year 1993. Defence of the accused emerged

for the first time in the year 1997 i.e. at the time of the cross-

examination of PW-6. There was sufficient time available to the accused

to strategize this defence. Had this been the actual position some

complaint or report or protest would have been lodged by the accused

but this was not so. The version that PW-13 suspecting the fidelity of his

wife with Jawahar Balwani is not borne out from any evidence. This

defence has not been established in the cross-examination of the

witnesses and nor by any other independent material. This could not and

did not dent or wipe away the cogent and coherent version of the eye-

witness which has been corroborated by the other aforenoted evidence

discussed supra.

76 On no count do the appellants deserve any sympathy. Appeal is

without any merit. Dismissed.

77 Appellants are on bail. Their bail bonds are cancelled. They be

taken into custody to serve the remaining sentence. Copy of this order

be sent to the Jail Superintendent for information.

78     Appeal disposed of in the above terms.



                                                INDERMEET KAUR, J




                                              KAILASH GAMBHIR, J

DECEMBER 20, 2013
A