Delhi High Court

Raj Pal vs The State (N.C.T. Of Delhi) on 15 March, 2013

Author: S. P. Garg

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : 22nd February, 2013
                                DECIDED ON : 15th March, 2013

+                        CRL.A. 353/2000

      RAJ PAL                                       ....Appellant
                    Through :   Mr.Akhilesh Kumar Pandey, Advocate.

                                versus

      THE STATE (N.C.T. OF DELHI)            ....Respondent
               Through : Mr.M.N.Dudeja, APP.

AND

+                        CRL.A. 354/2000

      DEV PAL                                       ....Appellant
                    Through :   Mr.Akhilesh Kumar Pandey, Advocate.

                                versus

      THE STATE (N.C.T. OF DELHI)            ....Respondent
               Through : Mr.M.N.Dudeja, APP.


       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellants- Raj Pal (A-1) and Dev Pal (A-2) impugn

judgment dated 12.05.2000 in Sessions Case No.490/1996 arising out of

FIR No. 118/1995 PS Ambedkar Nagar by which they were held guilty

for committing offences punishable under Sections 452/326/34 IPC. Vide

order dated 17.05.2000 they were sentenced to undergo RI for two years

with total fine ` 3,000/- each.

2. Allegations against the appellants were that on 22.02.1995 at

about 08.30 P.M. they, in furtherance of common intention, committed

criminal house trespass while armed with knife and hockey and attempted

to murder Hari Kishan and his wife Bharti by causing injuries with knife

and hockey. The prosecution examined nine witnesses. In their 313

Cr.P.C. statements, the accused pleaded false implication. On appreciating

the evidence and after considering the rival contentions of the parties, the

Trial Court, by the impugned judgment, held both of them guilty for

committing offences under Sections 452/326/34 IPC. Being aggrieved,

they have preferred the appeals.

3. Learned counsel for the appellants urged that the Trial Court

did not appreciate the evidence in its true and proper perspective and fell

into grave error to base conviction on the testimonies of the interested

witnesses. Glaring discrepancies / contradictions in the statements of the

prosecution witnesses were ignored without valid reasons. PW-3 (Bharti)

did not suffer any injury and was not medically examined. The

prosecution witnesses have given inconsistent version as to for how many

days Hari Kishan remained admitted in the hospital; how many knife

blows were inflicted to him; how many assailants were present at the time

of incident; and at which exact place the occurrence took place. No

independent public witness was associated at any stage of investigation.

The Investigating Officer did not lift blood from the spot. The knife

allegedly recovered was a new vegetable knife. The FIR in question was

registered as a counter-blast to the case lodged by A-1 against Hari Kishan

vide FIR No.230/1995 under Section 325 IPC. Learned APP urged that

PW-1 (Hari Kishan) is an injured victim. He has fully supported the

prosecution and there are no reasons to discard his statement.

4. I have considered the submissions and have examined the

record. Daily Diary (DD) No.15A (Ex.PW-9/A) was recorded on

22.02.1995 at 08.45 P.M. at PS Ambedkar Nagar on getting information

that a quarrel was going on at 20/140, JJ Colony, Dakshin Puri, New

Delhi. The investigation was assigned to SI Banwari Lal who with

Const.Manohar Lal went to the spot. He came to know that PCR had

already taken injured Pappu to Safdarjung Hospital. MLC (Ex.PW-8/A)

was prepared at Safdarjung Hospital on 22.02.1995 at 09.25 P.M. ASI

Rattan Chand admitted the victim to the hospital. Three incised wounds

and one clear lacerated wound were found on the body of the victim. He

was discharged on 25.02.1995. The injuries were 'grievous' caused by

sharp weapon. It is not the case of the appellants that these were self-

inflicted injuries. In their 313 Cr.P.C. statements the appellants claimed

that Hari Kishan was beaten by his neighbours. The occurrence took place

at 08.00 P.M. First Information Report was lodged at 11.50 P.M. after

recording Bharti's statement (Ex.PW-3/A). There was no delay in lodging

First Information Report. Undoubtedly, the victim sustained injuries on

his body. It is to be ascertained as to who was the author of the injuries.

5. Complainant Bharti, victim's wife in her statement (Ex.PW-

3/A) made to the police soon after the incident gave detailed account as to

how and under what circumstances both the accused armed with knife and

hockey committed trespass and inflicted injuries to her husband. She

attributed specific role to A-1 that he hit her husband with a hockey and

A-2 stabbed him with a knife many times. Since the First Information

Report lodged promptly, there was least possibility of fabrication of a

false story after due deliberations particularly when the victim Hari

Kishan was unfit to make statement.

6. Testimony of PW-1 (Hari Kishan) is very crucial to establish

the appellants' guilt. He deposed that on 22.02.1995, he returned to his

house from duty at 08.30 P.M. Both A-1 and A-2 came to his house. A-1

was holding a hockey and A-2 had a knife. They both caused injuries to

him with hockey and knife. When his wife intervened and raised hue and

cry, she was also given hockey blow by A-1. Somebody informed the

police. Police took him to the hospital. Due to injuries, he became

unconscious. In the cross-examination, he admitted that FIR No.230/1995

under Section 325/34 IPC was registered against him on A-1's complaint.

He however, volunteered to add that injuries were not caused by him to A-

1 and it was a false case. He elaborated that he was dragged from his

house to the 'gali' and was given beatings in front of his room. Doctor did

not enquire from him about the author of the injuries. He denied that

injuries were not caused to him by the accused. PW-3 (Bharti)

corroborated PW-1 (Hari Kishan)'s version in entirety. She also proved

the version given to the police in Ex.PW-3/A without any variation. She

deposed that on 22.02.1995 at 08.30 P.M. when her husband had returned

from duty, both A-1 and A-2 with another person entered their house. A-1

had a hockey and A-2 had a knife in his hand. A-2 gave knife blows to her

husband and A-1 gave hockey blow. Her husband fell down and started

bleeding. When she raised alarm, the accused ran away. Her statement

(Ex.PW-3/A) was recorded. In the cross-examination, she admitted that

A-1 had lodged report against her husband for teasing his wife. The

quarrel took place inside the room. Her husband was given beatings in the

gali. There were about 20 persons who had come along with the accused

persons. Police reached at around 09 or 09.30 P.M. Her statement was

recorded at 10.00 P.M. She denied that her husband had quarrel with

someone under the influence of liquor and was arrested. She admitted that

she was Hari Kishan's second wife.

7. On scrutinising the testimonies of PW-1 and PW-3, it reveals

that no material discrepancies or contradictions have emerged on core

issues to disbelieve them. Both were emphatic that A-1 and A-2 were

armed with hockey and knife and they inflicted injuries to Hari Kishan.

No ulterior motive was imputed to the witnesses to falsely implicate them

and to let the real assailants go scot free. Their statements are in

consonance with medical evidence. PW-2 (Dr.P.Rama Krishnan)

examined X-ray plates of the victim and gave his report (Ex.PW-2/A). He

noticed fracture styloid process of radius right wrist. The opinion given by

him was not challenged in the cross-examination. PW-8 (Pyare Lal)

proved MLC (Ex.PW-8/A) prepared by Dr.Farida Bandukwala who left

service with the hospital. Three incised wounds were found on the body of

the victim. One clear lacerated wound was also found. There is no conflict

between ocular and medical evidence.

8. FIR No.230/1995 was registered at PS Ambedkar Nagar on

the complaint of A-1 under Section 325 IPC against Hari Kishan about 16

days prior to the incident. Specific question was put to the appellants as to

what happened in the said case. The appellants and their counsel were not

aware about the fate of the said case. It transpires that the relations

between the parties were hostile. Since the complainant was alleged

author of the injuries 16 days prior to the occurrence, it might have

impelled the appellants to retaliate. Discrepancies/ contradictions

highlighted by counsel are not sufficient to absolve them of their guilt.

9. In 'Kathi Bharat Vajsur and Anr. Vs. State of Gujarat', AIR

2012 SC 2163, the Supreme Court held :

"19. This Court, in the case of Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra : (2010) 13 SCC 657, summarized the law on material contradictions in evidence thus:

30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same

again without justifiable reasons. (Vide State v. Saravanan.)"

10. Non-examination of independent witness by itself may not

give rise to adverse inference against the prosecution. However, when the

evidence of the alleged eye-witnesses raise serious doubts on the point of

their presence at the time of actual occurrence, the unexplained omission

to examine the independent witness, would assume significance. In

„Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors.‟, 2001 CriLJ

2602, the Supreme Court held :

"......................if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case, the court ought to scrutinize the worth of the evidence adduced. The Court of facts must ask itself - whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the Incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein."

11. Non-examination of an independent witness is not fatal and

does not discredit the otherwise cogent and reliable testimony of the

injured witnesses. Non recovery of the weapon is also inconsequential.

During investigation, the police did not find involvement of any other

assailant and charge-sheet was submitted only against the appellants.

12. The testimony of an injured witness is accorded a special

status in law. This is a consequence of the fact that the injury to the

witness is an in-built guarantee of his presence at the scene of crime and

because the witness will not want to let the actual assailant to go

unpunished merely to falsely involve a third party for the commission of

the offence. In the case of 'State of Uttar Pradesh vs.Naresh and Ors.‟,

(2011) 4 SCC 324, the Supreme Court held:

"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are

grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein."

13. In the case of 'Abdul Sayed Vs.State of Madhya Pradesh‟,

(2010) 10 SCC 259, the Supreme Court held :

"The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness".

14. The appellants did not give plausible explanation to the

incriminating circumstances proved against them. They did not examine

any witness in defence to establish their presence at some other specific

place at the time of occurrence. They did not examine any independent

witness from locality to prove their defence that injuries were inflicted by

some neighbour to the victim. The conviction of the appellants is based

upon fair appraisal of the evidence and no interference is called for. The

Trial Court has already taken lenient view while sentencing the appellants

for two years for committing the offences under Sections 452/326/34 IPC.

15. In the light of above discussion, the appeals lack merits and

are dismissed. The conviction and sentence of the appellants are

maintained. The appellants are directed to surrender and serve the