Rakesh Kumar & Ors. vs State
2014 Latest Caselaw 1703 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI



                            Reserved on:      26th September, 2013
%                           Date of Decision: 31st March, 2014




+                     CRIMINAL APPEAL No.387/1998


RAKESH KUMAR & ORS.                                 ..... Appellants
            Through:              Mr. D.C. Mathur & Ms. Rebecca M.
                                  John, Sr. Advocates with Mr. Jairaj
                                  Mudgal & Mr. Harsh Bora, Advocates



                            Versus



STATE                                                 ..... Respondent

                       Through:      Mr. Sanjay Lao, APP for the State.


CORAM:
HON'BLE MR. JUSTICE P.K. BHASIN
HON'BLE MR. JUSTICE VED PRAKASH VAISH


VED PRAKASH VAISH, J:

1. The appellants have assailed the impugned judgment dated 30 th

July, 1998 passed by the learned Additional Sessions Judge, Delhi

whereby the appellants have been convicted for the offence under

Sections 302/325 read with Section 34 of the Indian Penal Code

(hereinafter referred to as „IPC‟). Vide order on sentence dated 31st

July, 1998, the appellants were sentenced to undergo imprisonment for

life and to pay a fine of Rs.1,000/- under Sections 302/34 IPC and in

default of payment of fine, the appellants shall further undergo

rigorous imprisonment for a period of six months. The appellants were

also sentenced to undergo rigorous imprisonment for a period of one

year and to pay a fine of Rs.500 each, in default whereof, RI for three

months under Sections 325/34 IPC. Both the sentences were ordered

to run concurrently.

2. The case as unfolded by the prosecution is that on 11.12.1994 on

receipt of DD No.7A, ASI Sri Bhagwan along with Constable C.J.

Thomas reached at Din Dayal Upadhaya Hospital and obtained MLC

of injured Ram Kumar who was under the observation of the doctor

and was declared unfit for making any statement. The injured was

referred for skull x-ray by the doctor, on the way to which the injured

Ram Kumar succumbed to the injuries. ASI Sri Bhagwan met Shri

Balwant Singh, father of the deceased Ram Kumar in the hospital.

Balwant Singh made a statement regarding the occurrence of the

incident. ASI Sri Bhagwan made his endorsement and sent rukka to

the police station for registration of the case. SHO, PS Kanjhawla

along with his staff reached the hospital. Complainant Balwant Singh

was also sent for medical examination but on account of rush in the

hospital and also on account of apprehension of the complainant about

well being of his family members and keeping in view his request that

first he wanted to go home, ASI Sri Bhagwan along with SHO and

complainant Balwant Singh reached Village Kanjhawla. At the

instance of Balwant Singh, police inspected the spot of incident and

recorded the statement of Raj Singh, Narinder, Suraj Bhan and Ram

Pat. Balwant Singh was also medically examined at Din Dayal

Upadhayay Hospital and thereafter the investigation was taken over by

Inspector Bhatia of Special Investigating Unit.

3. On 12.12.1994, the Investigating Officer visited Din Dayal

Upadhaya Hospital and in the presence of Balwant Singh and Mangey

Ram, he conducted the inquest proceedings in respect of the deceased

Ram Kumar. He filled the inquest form, prepared brief facts and

recorded the statements of Balwant Singh and Mangey Ram and also

prepared an application for post mortem examination. Thereafter post

mortem examination was conducted and clothes of the deceased were

sealed and kept in a safe custody in a sealed parcel.

4. On 15.12.1994, Inspector Bhatia received an information that

accused Surinder and Rakesh could be apprehended at ISBT at about

11.30 a.m. or so. Thus, he joined Balwant Singh and his nephew Suraj

Bhan and proceeded to ISBT in search of the accused persons. He

along with the witnesses reached ISBT, Kashmere Gate and thereafter

at about 12.30 p.m., appellants Surinder and Rakesh were spotted by

him near Sonepat bus platform at the instance of a secret informer,

Balwant Singh and Suraj Bhan. The appellants were interrogated and

during interrogation, appellant-Surinder besides giving other details of

the incident disclosed that he could get the lathi used in the crime

recovered from a place near pulia at Kanjhawla, Karala Road, where it

was thrown by him. His disclosure statement was recorded. The

appellant-Rakesh was also interrogated who also got his disclosure

statement recorded wherein he stated that he had thrown the bat used in

the crime near kudedan at Kanjhawla Road. The appellants were

produced before the Area Magistrate and there police remand was

obtained. Thereafter both the said appellants respectively got lathi and

bat recovered from pulia and kuredan at Kanjhawla. Both lathi and bat

were seized. On 08.01.1995, on receipt of information regarding the

presence of appellant-Radhey Mohan near park Ashok Vihar, Police

Colony, Inspector Bhatia proceeded along with his staff to the said

place where he was spotted and apprehended. He also got the

disclosure statement recorded. After completion of investigation,

charge sheet under Sections 302/325/34 IPC was filed. The trial was

conducted and prosecution has examined as many as 18 witnesses

leading finally to the passing of the impugned judgment and order on

sentence.

5. Learned senior counsel for the appellants contended that the

appellants are falsely implicated in this case. There is no evidence

against the appellants and the conviction against them is bad in the

eyes of law. There is delay in lodging of FIR and sending of special

report. There is no mention of FIR in inquest report while all the

documents have daily diary number which shows that till the time of

post mortem, the alleged eye-witness account and the allegations

against the appellants were not mentioned in them. There are material

discrepancies in the statements of Balwant Singh (PW-2) and Suraj

Bhan (PW-4). He further contended that the motive of the crime is not

established. Further, material evidences are totally in contradiction

with the ocular evidence while according to PW-2, PW-4 and PW-11,

the incident lasted for 10-15 minutes, as per the post mortem report,

there were only two injuries on the body of the deceased. Balwant

Singh (PW-2) got himself medically examined after considerable delay

and from the testimony of Dr.Sanjay Rohtagi (PW-8), it is clear that

the injury could have been received by PW-2 as a result of fall. It was

lastly contended that there is doubt regarding the recovery of weapon

of offence as they were recovered from an open place.

6. Per contra, learned APP for the State contended that the

testimonies of PW-2, PW-4 and PW-11 are consistent and corroborated

with each other and point out towards the guilt of the appellants. In the

light of their cogent testimonies, the motive of crime need not be

proved and even if needed was consistently stated by them that it was

due to fight that it occurred 3-4 times prior to the date of incident over

a tap situated outside the house of Balwant Singh. There is no delay in

recording of the FIR. As soon as the statement of PW-2 was recorded

at 3.00 p.m, the rukka was forwarded for registration of FIR that was

registered at 3.40 p.m. The DD entries Ex.PW12/A to Ex.PW12/C

established that the incident was reported to have occurred because of

appellants hitting the deceased as a result of which he died. He also

pointed out that the recovery was established from the statement of

PW-2 and PW-4 who had witnessed the same.

7. We have given our anxious thought to the rival submissions

made by learned senior counsel for the appellants and learned APP for

the State and also perused the material on record.

8. Balwant Singh (PW-2), who is father of the deceased, has stated

that on 11.12.1994 at about 10.00 a.m., he was at his house as it was a

holiday. He had got a water tap installed in front of their house and the

appellants also used to fetch water from it. It was on 06.12.1994, wife

of appellant-Surinder had thrown some dirty material at the said water

tap and they asked her not to have water from that tap. Thereafter

appellant-Radhey Mohan and his both sons came in front of their

house, abused them and threatened them. The appellant-Radhey

Mohan had also warned them that they will be finished one by one.

He, his wife and his son Ram Kumar were watching a serial inside

their house and on 11.12.1994 at about 10.00 a.m., when they opened

the gate of their house and after opening the door, his son Ram Kumar

holding a glass of water threw water on his face when appellant-

Radhey Mohan said that the boy should be finished. Appellant-Rakesh

hit with a bat on the head of his son and then Surinder gave lathi blow

on the head of his son Ram Kumar. On receiving bat and lathi blows

when his son wanted to run inside, appellant-Radhey Mohan came

running and gave a mongri blow on the head of his son Ram Kumar

who fell down there itself. Narinder, Suraj Bhan and Raj Singh also

reached there. They all tried to separate but the appellants kept on

assaulting his son. Thereafter, the police arrived and they enquired

from him about the incident and he told the same to them and pointed

out towards the appellants who were present there. The police

enquired the names of the appellants. The police then removed his

son Ram Kumar along with him to Din Dayal Upadhaya Hospital.

They reached Din Dayal Upadhaya Hospital at about 11.30 a.m.

Police took his son into the ward and he also accompanied them where

his son was given glucose drip. Thereafter his son was referred for x-

ray and at that time his son died. Two police officials of Kanjhawla

also reached there and they recorded his statement which is Ex.PW2/A.

He had also received injury at the hands of the appellants while trying

to save his son. Police also asked him to get himself examined in the

hospital but since there was rush, he returned to his house along with

the police. There he pointed out at various spots, prepared site plan

and interrogated Narinder and Raj Singh.

9. On 15.12.1994, SI Bhatia came to their house at about 7.45 a.m.

and told them that they had seen the appellants near bus stand and he

should accompany him. He accompanied the police along with Suraj

Bhan and reached ISBT. When police asked them to search for the

accused persons, they took rounds to search the appellants and spotted

the appellants Surinder and Rakesh standing in queue for tickets at

the counter from where buses for Sonepat go. Police apprehended both

the appellants namely Rakesh and Surinder. They were searched and

Rupees nine was recovered from Surinder and Rupees eleven from

appellant-Rakesh. They were interrogated by the police and they gave

details of the incident which was written and he put his thumb

impression and Suraj Bhan signed the same. The police then took the

appellants to Court and he as well as Suraj Bhan went to their house.

Thereafter, at about 5.00 p.m. or so, the police brought the two

appellants to their house in Kanjhawla and police requested them to

accompany them and affecting recovery of lathi and bat as disclosed by

the appellants. Then they all went near the canal which is between

Kanjhawla and Karala. Then they went to pulia which was ahead of

the canal and from there the appellants Surinder brought a lathi lying

downwards which was identified by him, the same was sealed after

measuring it. Then they came to Kanjhawla and made enquiry from

Rakesh regarding the bat and he disclosed that he had thrown it near a

dustbin on the road leading to Kutubgarh. Thereafter, they went to the

said place and from there, the appellant-Rakesh brought a bat lying

behind the dustbin which was about two and a half feet long. The said

bat was also sealed. Papers regarding recovery were prepared and all

bearing his thumb impression and signature of Suraj Bhan, the same

are Ex.PW2/C to Ex.PW2/G. Police once again visited their house in

January 1995 and he was asked to show various places of incident

which he showed. Measurements were taken and site plan was

prepared. In his cross-examination, he reiterated his statement made

before the Court and denied the suggestion that his son Ram Kumar

was playing cricket on that day along with other children and that a

fight ensued between Ram Kumar and other children on which Ram

Kumar received injuries. He also denied that he was not present at the

scene of occurrence and had deposed falsely to implicate the appellants

as he wanted to purchase the house of appellant-Radhey Mohan by

clandestine manner.

10. Suraj Bhan (PW-4) has stated that on 11.12.1994, he was present

at the roof of his house at about 10.00 a.m. when he saw his neighbours

Surinder, Rakesh and Radhey Mohan came running towards the house

of Balwant. Rakesh had a bat in his hand, Surinder had a lathi and on

seeing them he came down from the roof as a quarrel had taken place

between Balwant and Radhey Mohan 3-4 days earlier on the point of

throwing filth near the water tap of Balwant and on that day of quarrel

Radhey Mohan had threatened Balwant that they would kill them one

by one. On 11.12.1994 when the appellants came running, Ram

Kumar was washing his face in front of his house and the appellant-

Radhey Mohan asked his son to finish him and on this appellant-

Rakesh hit bat on the head of Ram Kumar and then Surinder gave lathi

blow on the head of Ram Kumar and when Ram Kumar wanted to

enter the house in order to escape, appellant-Radhey Mohan gave a

mongri blow on the head of Ram Kumar from back side. After

receiving the mongri blow, Ram Kumar fell down in front of the gate

of his house having his face downward. Appellants kept on assaulting

Ram Kumar even after his fall. Neighbours Raj Singh, Narinder,

Balwant Singh and he tried to intervene and with great difficulty he

could separate them. Thereafter, police PCR came and took Ram

Kumar to the hospital along with Balwant. Later on he came to know

that Ram Kumar had died in the hospital. On 15.12.1994, SI Bhatia

came to their house and he informed them that the accused persons

were attempting to go out of Delhi. He accompanied the police along

with Balwant at ISBT and reached there at about 11/11.15 a.m. The

police asked them to look for the accused persons at ISBT. When they

spotted appellants-Surinder and Rakesh standing in queue to buy

tickets at Sonepat platform, on their pointing, said appellants were

apprehended. The appellants were searched, their statements were

recorded and they gave the details of incident. Appellant- Surinder

told that he had thrown lathi near pulia of canal at Kanjhawla Road and

appellant-Rakesh said that he had kept bat near dustbin at Kanjhawla

Road. Police prepared papers, which were signed by him. On the

same day at about 4.30 or 5.00 p.m., police came to their house and

asked them to accompany them to the place of recovery. He also

stated that appellant-Surinder got lathi recovered from pulia and

appellant-Rakesh got recovered bat from behind the dustbin

respectively which were sealed and seized. In his cross-examination,

besides several other things, he stated that he was present when the

occurrence prior to 3-4 days of 11.12.1994 had taken place. He has

also tried to convince the appellant not to quarrel with Balwant. He

denied the suggestion that Ram Kumar was playing cricket with other

children and received injuries during quarrel.

11. Sharbati (PW-11) stated that deceased Ram Kumar was her son.

It was on 11th day of the month, about one year ten months earlier,

Chander Kanta serial on television had ended and she was present at

her house. Her husband was also at the house when her son deceased

Ram Kumar was standing at the gate of the house washing his face. It

was a day time that all the appellants had come there. The appellant-

Rakesh had cricket bat, appellant Surinder had a lathi and appellant

Radhey Mohan had a mongri used for washing clothes. All the three

appellants started beating her son Ram Kumar with the above

mentioned objects. They kept on beating him mercilessly and when

she tried to intervene, Radhey Mohan pushed her, on account of which

she fell down at a distance. Her son Ram Kumar fell down near the

door and became unconscious on account of the beating given by the

appellants. The appellants, thereafter, started beating her husband.

Suraj also intervened and other persons also came for intervention.

She went to the adda of the village where PCR van was present. She

informed them about the incident. They inquired her name and then

she along with police returned to the spot and the appellants (accused

persons) had run away. She also stated that 4-5 days earlier to the said

incident, wife of appellant-Surinder had thrown filth on their water tap

which is fitted outside their house. Her son Ram Kumar had asked the

appellants on that occasion that they should not take water from their

tap. On this, the appellant had very filthily and badly abused them. On

the said day when the filth was thrown on the tap, appellant-Radhey

Mohan had threatened them by asking his both sons Rakesh and

Surinder that they should finish one by one Ram Kumar etc. and that

he would see to it this happened. After about a month, two police

persons came to her house and recorded her statement. In her cross-

examination, she reiterated her statement that she had informed the

police about the incident and also the earlier incident which happened

4-5 days earlier when an altercation had occurred over water tap. She

denied the suggestion that her son was playing cricket on the day of

occurrence or that while playing cricket somebody inflicted injuries on

her son Ram Kumar and as a result of which he died. She also denied

that she stated to PCR officials that her son received injuries while he

was playing cricket with other boys.

12. It is a well settled law that evidence of the witness cannot be

discarded merely on the ground that he is either partisan or interested

or close to the deceased, if it is otherwise found to be trustworthy and

credible. The said evidence only requires scrutiny with more care and

caution so that neither the guilty escapes nor the innocent is wrongly

convicted. If on such careful scrutiny the evidence is found to be

reliable and probable then it could be acted upon. If it is found to be

improbable or suspicious, it ought to be rejected. Where the witness

has a motive to falsely implicate the accused, his testimony should

have corroboration in regard to material particulars before it is

accepted. Even more so, merely relations do not amount to interested

in a case which has to be proved by clear and cogent evidence. The

Hon‟ble Supreme Court in Dalip Singh vs. State of Punjab, AIR 1953

SC 364 has held:-

"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

13. It is also well settled principle of law that the Court can act on

the testimony of a single eye-witness provided he was wholly reliable

and base conviction on the testimony of such sole eye-witness. Thus,

there is no legal impediment in convicting a person on sole testimony

of single eye-witness if it is found to be reliable and trustworthy. In

the present case, Balwant Singh (PW-2), Suraj Bhan (PW-4) and

Sharbati (PW-11) are eye-witnesses to the said incident between the

appellants and the deceased in which the deceased had died. Their

testimonies before the trial Court are consistent and corroborated in

material parts with the testimony of each other, as regards the factum

of appellants coming to the house of the deceased on 11.12.1994 and

hitting him as a result of which he died. Their statements are also

corroborated in regard to the incident which had occurred 3-4 days

prior to the incident on 11.12.1994 in which the appellant-Radhey

Mohan had threatened Balwant Singh that he would kill one by one.

As we have observed above, the testimonies of Balwant Singh (PW-2)

and Sharbati (PW-11) cannot be discarded simply because they are the

parents of the deceased Ram Kumar. Although, as per judgment in

Dalip Kumar's case (supra) the testimony of relatives do not require

corroboration if it is found to be reliable, however, in the present case,

the testimonies of both these witnesses corroborate with each other and

the testimony of an independent witness Suraj Bhan (PW-4).

14. The appellants had produced four defence witnesses out of

which Raj Singh (DW-2) has stated that on 11.12.1994 at about

9.30/10.00 a.m., he was standing outside his house. Some children

were playing cricket, he heard shouts of children and heard that

somebody was injured. He saw Ram Kumar, son of Balwant Singh in

injured condition and he had injuries on his head. He enquired as to

how he received injury. The enquiry revealed that Sunder and Radhey

Shyam had given him injuries with the bat. He took Ram Kumar in

injured condition inside his house where the mother of Ram Kumar

met him and he asked her to take care of injured Ram Kumar. Then,

he went and reported all this to PCR van which was standing nearby at

the chowk. PCR took the injured Ram Kumar to the hospital. He

further stated that none of the appellants were present at the spot.

There was some dispute between Balwant and Radhey Mohan on

account of some land situated near their house, Balwant used to say

that this was his piece of land and it should be given to him. In his

cross-examination by learned APP, he denied the suggestion that he

had been won over by the accused persons and that he saw appellant-

Surinder armed with lathi, appellant-Rakesh armed with a cricket bat

and appellant-Radhey Mohan armed with a mongri coming out and

then they stood outside house of Balwant. He also denied that he saw

or heard appellants hit the deceased or that the appellants assaulted the

deceased in his presence. He also denied that he did not report the

incident or that he did not see any child playing cricket at the spot.

15. Ram Pat (DW-3) has stated that on 11.12.1994 at about 9 or

10.00 a.m., that he was sitting outside his house on a cot. Children

were playing cricket outside his house. His house and house of

Balwant and Raj Singh are in one line and only a single road falls in

front of their house. Children started fighting among themselves and

in that melee Ram Kumar received injury on his head. Raj Singh also

reached the spot and took Ram Kumar inside the house of Balwant.

Then PCR van came to the spot and took Ram Kumar to the hospital.

Three appellants-Radhey Mohan, Surinder and Rakesh were not

present at the spot when Ram Kumar received injuries. He did not see

Suraj Bhan and Balwant at the spot. Appellants and complainant

Balwant used to have dispute over this issue that the house belongs to

him and that they should not visit him. The house in question was the

house of Radhey Mohan. In his cross-examination by learned APP, he

stated that he did not know why Balwant was laying claim on the

house of Radhey Mohan. He denied the suggestion of having

accepting money from the appellants to depose falsely and that the

appellants had hit the deceased in his presence or that there was a

quarrel 3-4 days prior to the incident. He also denied that he had not

seen Ram Kumar playing cricket and that Ram Kumar did not receive

injury in any such cricket game dispute as stated by him.

16. A perusal of testimony of Raj Singh (DW-2) shows that he heard

the shouts of children and heard that someone was injured which was

the deceased and also suggested that the said incident occurred in a

fight between children. However, it is not clear whether he actually

saw someone hitting the deceased. He witnessed the incident himself.

Ram Pat (DW-3) has, on the other hand, stated that he saw that the

children started fighting and in that melee deceased Ram Kumar died.

However, in either case these witnesses have failed to prove as to what

steps were taken by them to get the incident of fight between the

children reported. Their statements are general in nature, only to show

the presence of appellants from the place of incident and to state the

reason of injury as a fight amongst children. In support of their case,

the appellants have also relied on the statement of HC Inder Pal Singh

(DW-1) who recorded DD No.8A, copy of which is Ex.DW1/A in

which the cause of incident referred was a fight over cricket. These

statements and the DD entry cannot be looked into in isolation and

have to be looked in the light of the prosecution case which stands

fortified from the consistent statements of Balwant Singh (PW-2),

Suraj Bhan (PW-4) and Sharbati (PW-11) who had, in depth, described

the entire evidence and also the statement of ASI Virender Singh (PW-

12), Duty Incharge at PCR van, commander 38 from Kanjhawla

Chowk from 8.00 a.m. to 8.00 p.m on 11.12.1994, who stated that at

about 10.30 a.m. on 11.12.1994, a lady namely, Sharbati came to him

at Kanjhawla Chowk and informed that her son was beaten by her

neighbour and that he was lying unconscious. He recorded this

information in the wireless log and diary register. He along with

Smt.Sharbati reached the spot and found Ram Kumar lying

unconscious and came to know that her neighbours Radhey Mohan and

Sunder had hit his son with a cricket bat on his head. ASI Virender

Singh (PW-12) removed the deceased along with his father to DDU

Hospital and handed over the case to duty Constable. He had also

proved entries made on 10.35 a.m, 10.45 a.m. and 11.22 a.m. as

Ex.PW12/A to Ex.PW12/C. Clearly in the light of his statement and

the documents proved by him, the factum of the incident occurred

because of a quarrel over cricket is not established. Even the DD

No.8A was recorded at 11.50 a.m., however, it bears no mention of the

name as to at whose instance it was recorded. On the other hand,

Ex.PW12/A to Ex.PW12/C recorded earlier to DD No.8A and

statements of PW-2, PW-4 and PW-11 established that the incident

occurred because the appellants had hit the deceased and the same fact

was informed by PW-2 to ASI Virender Singh (PW-12) soon after the

incident by Sharbati (PW-11) which was so stated by him in his

testimony.

17. The statements of PW-2, PW-4 and PW-11 are challenged by

learned counsel for the appellants for the reason that they had stated in

their testimonies the incident in which the deceased Ram Kumar had

died which occurred because of incident 3-4 days prior to 11.12.1994

over a tap installed outside the house of Balwant Singh. However, in

the cross-examination Balwant Singh (PW-2) has stated that there was

no tap in front of his house and also that there was no tap in front of his

house on the date of occurrence. He also stated that there was a tap in

front of the house of Radhey Mohan and pipe of that tap was adjacent

to his house. Even Suraj Bhan (PW-4) has stated in his cross-

examination that Radhey Mohan had got a separate water connection

and there was no water tap in front of the gate of house of Balwant.

However, this fact is in itself not sufficient to dispute the testimony of

these two witnesses in toto and to make their statements unreliable.

The factum of presence of tap in the present case is necessary to

establish the motive of the appellants to commit the said incident and

its absence from that place as suggested by learned counsel for the

appellants, relying on the testimony of PW-2 and PW-4 would not be

sufficient enough to wipe away their otherwise consistent and

corroborated stands. Otherwise also, a perusal of visual site plan

Ex.PW15/B shows that the tap at point „B‟ which is right across the

gali of the house of the deceased. It could be possible that the said

witnesses were referring to this water tap. It is pertinent to mention

here that the absence of motive also is of no consequence and pales

into insignificance when direct evidence establishes the crime. In fact,

motive is a thing which is primarily known to the accused himself and

it may not be possible for the prosecution to explain what actually

promoted or existed him to commit a particular crime. The Court is

free to act on the testimonies of witnesses if no error is found even in

the absence of motive and can base its judgment on it. For the reasons

of corroboration of testimonies of PW-2, PW-4, PW-11 and PW-12 as

observed by us, the contention of the learned counsel for the appellants

failed before us.

18. The post mortem of the deceased was conducted by Dr.L.T.

Ramani (PW-3) who has prove this post mortem report as Ex.PW3/A

where the various injuries were described as:-

"External injuries

1. Haematoma 2" x 1 ½" in size on the left temporal region.

2. Haematoma on the right temporal paratib region.

3. An abrasion 3/4"x 1/2 " on the left cheek.

On internal examination scalp tissues showed blood clot over right fronto parietal and temporal and left temple region. There was fissured fracture of right temporal bone joining coronal suture which was loosen. A Fissured fracture was found radiating internally involving frontal bone. There was thick generalized subdural haemmorage more on the right side with a oedema of brain. Neck tissues were normal, lungs and heart normal, stomach was full contained semi digested food. Other abdomen organs were normal."

19. Doctor has described the injuries as antemortem in nature caused

by a blunt weapon and injury to the skull was prescribed as sufficient

in the ordinary course of nature to cause death. Further, the cause of

death was described as coma resulting from head injury.

20. The appellants had produced Dr.L.K. Baruah (DW-5) who has

stated that a person would sustain more than two injuries when three

persons attack a person with three different weapons. It is proposed to

suggest that the medical evidence does not support the case of the

prosecution where it is suggested that the deceased was given brutal

injuries by hitting several times, however, there were two temporal

injuries on the body of the deceased. However, this contention too

does not find favour with us. Suraj Bhan (PW-4) has stated in his

cross-examination that he tried to save the deceased Ram Kumar, and

Balwant Singh (PW-2) fell on deceased Ram Kumar to save him but

not fully covering him and accused persons kept on hitting the

deceased for 10-15 minutes. Balwant Singh (PW-2) also stated that he

too received injury at the hands of the appellants while trying to save

the deceased. He also stated in his cross-examination that he tried to

prevent appellants from hitting his son with lathi, he intervened,

however, the lathi blow did not hit him but the deceased. Hence, in

such a situation, it is quite possible that the blows given by the accused

persons might have missed the deceased and some of them might have

been received by Balwant Singh (PW-2).

21. Also Dr.Yashpal (PW-18), Radiologist, DDU Hospital has

deposed that on 11.12.1994 while working as Radiologist he had

examined skiagram bearing No.7963 dated 11.12.1994 in respect of

Balwant Singh and opined that there was fracture of 5 th mata carpal

base in the left hand of injured Balwant Singh. The skiagram was

signed by him in token of the fact that its report was prepared by him.

In his cross examination, he has stated that the injuries cannot be self

inflicted but can be sustained on account of a fall on hard substance.

Clearly it is seen from the above that the injury of the deceased was

caused on a vital part of the body i.e. the head which is in the opinion

of Dr.L.T. Ramani (PW-3) was sufficient in the ordinary course of

nature to cause death of the deceased.

22. In the case before us, the commonality of intention to cause

death of the deceased is established from the fact that the appellants

had all come armed with weapons and continued beating the deceased

even after he had falling down on the ground. The cause of death as

we have observed was also opined to be because of injury inflicted on

the skull which as the result of appellants hitting the deceased. Section

34 IPC, however, further envisages that all the accused must have

participated in the commission of the „act‟ referred to in the later part

of Section 34 IPC which means the ultimate criminal act with which

the accused is charged of sharing the common intention. The accused

is, therefore, made responsible for the ultimate criminal act done by

which several persons in furtherance of the common intention of all.

The section does not envisage the separate act by all the accused for

becoming responsible for ultimate criminal act. If such interpretation

is accepted, the purpose of Section 34 IPC shall be rendered

infructuous. Participation in the crime in furtherance of the common

intention cannot be conclusive of some independent criminal act by all

the accused persons besides the ultimate criminal acts because for that

individual act, law takes care making such accused responsible under

the other provisions of the Court.

23. So far as the delay in recording FIR is concerned, it may be

observed that the occurrence is alleged to have taken place at 10.a.m.

on 11.12.1994. The deceased was admitted in the hospital at 11.30

a.m. and he was declared dead at 12.20 p.m. The statement of Balwant

Singh (PW-2) was recorded, on the said statement immediately

whereafter rukka was sent for registration of FIR at 3.00 pm and FIR

was registered at 3.40 p.m. In our opinion, this is not a material delay

in recording the FIR and is not fatal to the case of prosecution and the

delay, if any, might have been because of the involvement of Balwant

Singh (PW-2) and police authorities being involved in providing

medical care to the deceased. Otherwise also, what has been stated in

the FIR finds corroboration from what was stated in the DD entries,

copies of which are Ex.PW12/A to Ex.PW12/C which was recorded

prior in time to the recording of FIR.

24. It is a settled principle of criminal jurisprudence that mere delay

in lodging the FIR may not prove fatal in all the cases, but in the given

circumstances of the case delay in lodging the FIR can be one of the

factors which corrode the credibility of the prosecution version. Delay

in lodging the FIR cannot be a ground by itself for throwing away the

entire prosecution case. The Court has to seek an explanation for delay

and check the truthfulness of the version put forward. If the Court is

satisfied, then the case of prosecution cannot fail on this ground alone.

The delay in lodging FIR acquires significance when such a delay

speaks itself of mala fide. Where the criminal machinery is set into

motion by an individual to vindicate his own personal grudge and

enmity, apparent from the conduct of the delay in lodging of FIR and

where the delay speak loud and clear that it was as a result of

afterthought and proper planning, then the Court can look such an FIR

with suspicion. In Kishan Singh (dead) through LRs vs. Gurpal

Singh & Ors., (2010) 8 SCC 775,it was observed:-

"22. In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the civil court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive wreaking vengeance on the other party. Chagrined and frustrated litigations should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case."

25. However, in the case before us, we have already observed that

the material contents of FIR are corroborated with the contents in

Ex.PW12/A to Ex.PW12/C. Also, the appellants have not been able to

prove any mala fide or ill motive on the part of PW-2 also the

complainant to have falsely implicate the appellants in this case.

Nothing material has emerged from the cross-examination of PW-2

also to this effect.

26. Learned senior counsel for the appellants has relied upon

Rakesh Aggarwal vs. State, 1995(33) DRJ (DB) and L/NK Meharaj

Singh vs. State of Uttar Pradesh, JT 1994(3) SC 440 for proving that

on the basis of delay in FIR, conviction can be set aside. But both

these judgments are of no help to the appellants as in both these

judgments it was held that if prosecution can offer a satisfactory

explanation for the delay in dispatching or the receipt of copy of the

FIR by the concerned Magistrate, then such delay is not fatal to the

case of prosecution. Therefore, as stated above, delay is duly

explained and not mala fide, so mere delay in recording of FIR will not

go to the extent of discarding the prosecution version.

27. Further, learned counsel for the appellants also relied upon

Balwant Singh vs. State, 1976 C.L. R. (Delhi) 41 wherein it was held

that once investigation is found to be tainted, the whole of the

prosecution case becomes open to serious doubts and challenges.

However, again this judgment is of no help to the appellants.

28. In Ram Bali vs. State of Uttar Pradesh, (2004) 10 SCC 598,

the Supreme Court observed that in case of defective investigation the

Court has to be circumspect while evaluating the evidence. But it

would not be right in acquitting an accused person solely on account of

the defect; to do so would tantamount to playing into the hands of the

investigation officer if the investigation is designedly defective.

29. Further, in Visveswaran vs. State, (2003)6 SCC 73, it was

observed that in defective investigation, the only requirement is of

extra caution by Courts while evaluating evidence. It would not be just

to acquit the accused solely as a result of defective investigation. Any

deficiency or irregularity in investigation need not necessarily lead to

rejection of the case of prosecution when it is otherwise proved.

30. The law on this issue is well settled that the defect in the

investigation by itself cannot be a ground for acquittal. If primacy is

given to such designed or negligent investigations or to the omissions

or lapses by perfunctory investigation, the faith and confidence of the

people in the criminal justice administration would be eroded. Where

there has been negligence on the part of the investigating agency or

omissions etc. which resulted in defective investigation, there is a legal

obligation on the part of the Court to examine the prosecution evidence

de hors such lapses, carefully, to find out whether the said evidence is

reliable or not and to what extent it is reliable and as to whether such

lapses affected the object of finding out the truth.

31. Where our criminal justice system provides safeguards for fair

trial and innocent till proven guilty to an accused, there it also

contemplates that a criminal trial is meant for doing justice to all, the

accused, the society and a fair chance to prove to the prosecution.

Then alone can law and order be maintained. The Courts do not

merely discharge the function to ensure that no innocent man is

punished, but also that a guilty man does not escape. Both are public

duties of the judge. During the course of the trial the learned Presiding

Judge is expected to work objectively and in a correct perspective.

Where the prosecution attempts to misdirect the trial on the basis of a

perfunctory or designedly defective investigation, there the Court is to

be deeply cautious and ensure that despite such an attempt, the

determinative process is not subserved. For truly attaining the object

of a „fair trial‟, the Court should leave no stone unturned to do justice

and protect the interest of the society as well.

32. It was further contended on behalf of the appellants that alleged

recovery of weapon of offence from the appellants was itself doubtful

as it was recovered from an open place which was accessible to all. It

is clear from the testimony of PW-2 that recovery was effected from

pulia which was ahead of a canal between Kanjhawla and Karala, from

there the appellant-Surinder got the recovery of the weapon of offence

i.e. lathi lying downwards. Then the appellant-Rakesh got the

recovery of a bat used for committing the offence from behind a

dustbin at Kanjhawla Road.

33. Learned senior counsel for the appellants relied upon Durga

Prasad vs. State, 2009 (4) JCC 2533, Kora Ghasi vs. State of Orissa,

(1983) 2 SCC 251 and Trimbak vs. State of M.P., AIR 1954 SC 39, as

per which when recovery is effected from an open place which is

accessible to all, then it is difficult to hold positively that the accused

was in possession of these articles.

34. However, recently in Irahim Musa Chauhan @ Baba

Chauhan vs. State of Maharashtra, (2013) 4 Scale 207, the recovery

was affected from the terrace of the premises and the contraband article

which was found hidden beneath the waste material placed therein. It

was held that though the contraband articles have been recovered from

the open place but the articles have been recovered from the waste

material, so it loses the significance of being recovered from the open

space on the terrace.

35.Therefore, even if recovery is from an open space and accessible

place but recovery was effected from a particular hiding place in that

area known to the appellants only, then such recovery cannot be

termed as doubtful.

36. In the light of the aforesaid discussion, the appeal is without any

merit and the same is hereby dismissed. The sentence of imprisonment

of the appellants was suspended during the pendency of the appeal and

now that the appeal stands rejected, the personal bonds/surety bonds

furnished by the appellants stand cancelled and they shall be taken into

custody forthwith to serve out the remainder part of the sentence of

imprisonment. A copy of this judgment be sent to trial Court along

with trial Court record.

(VED PRAKASH VAISH) JUDGE

(P.K. BHASIN) JUDGE March 31st , 2014/gm