Sudhir Kumar vs State
2015 Latest Caselaw 3495 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CRL.A. 248/1998
%                                          Judgment dated 30th April, 2015

       SUDHIR KUMAR                                          ..... Appellant
                               Through : Mr.K.K. Sud, Sr. Adv. with Mr.Ujas
                               Kumar, Adv. along with appellant.

                               versus

       STATE                                                 ..... Respondent
                               Through : Mr.Feroz Khan Ghazi, APP for State
                               Ms.Aarohi Holani for Mr.Rajat Aneja, Advocate
                               for the complainant

+      CRL.A. 252/1998
       VIMAL ANAND                                            ..... Appellant
                               Through : Mr.Vikas Pahwa, Sr. Advocate with
                               Ms.Aeshna Dahiya and Ms.Astha Sharma,
                               Advocates with appellant in person.

                               versus
       STATE                                                 ..... Respondent
                               Through : Mr.Feroz Khan Ghazi, APP for State
                               Ms.Aarohi Holani for Mr.Rajat Aneja, Advocate
                               for the complainant

+      CRL.A. 253/1998
       MUKESH KUMAR @ MUKKI                           ..... Appellant
                  Through : Mr.N.Hari Haran, Sr. Advocate with
                  Mr.Sarvan Chouhan, Mr.Vaibhav Sharma, Mr.Amit
                  S. Chauhan & Mr.Sahil Paul, advocates

                               versus
       STATE                                               ..... Respondent
                               Through :   Mr.Feroz Khan Ghazi, APP for State
CRL.A.Nos. 248, 252, 253 & 261/1998                                Page 1 of 36
                                Ms.Aarohi Holani for Mr.Rajat Aneja, Advocate
                               for the complainant
+      CRL.A. 261/1998
       MUKESH KUMAR                                     ..... Appellant
          Through : Mr.Mukesh Kalia, Ms.Sumita Kapil and
          Mr.Tushar Sharma, Advocates for the appellant

                               versus

       STATE                                                 ..... Respondent
                               Through : Mr.Feroz Khan Ghazi, APP for State
                               Ms.Aarohi Holani for Mr.Rajat Aneja, Advocate
                               for the complainant

CORAM:
       HON'BLE MR. JUSTICE G.S.SISTANI
       HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

JUDGMENT (ORAL)

1. Four appeals have been filed by the appellants (Sudhir Kumar, Vimal Anand, Mukesh Kumar @ Mukki and Mukesh Kumar) challenging the judgment of the trial court dated 27.5.1998 by which all the four appellants were held guilty and convicted for the offence punishable under Section 302/34 IPC and order on sentence dated 28.5.1998 by which appellants were sentenced to life imprisonment with fine of Rs.5,000/- each, in case the fine is not paid, the convicts were directed to undergo simple imprisonment for six months.

2. The case of the prosecution as it unfolds and noticed by the trial court is as under:

"2. Brief facts giving rise to the prosecution case are that on 4.10.84 DD No.13-A was recorded at police station Gandhi Nagar

and it was handed over to S.I. Balwant Singh for investigation, who along with S.I. Som Prakash, Constable Riaz-ul-Haz and constable Riaz went to the spot in Gali No.11, H.No.9/6682, Gandhi Nagar. From there he came to know that the injured had been removed to hospital and he went to JPN Hospital, in the hospital Sh.Teja Singh, the father of the deceased met him. He recorded his statement to the effect that he was residing at H.No.9/6682 and was running a shop at 149 Main Road, Gandhi Nagar under the name of Khalsa General Store. His sons Richpal Singh, Jasbir Singh and Charanjit Singh were also residing in the same house and are working with him in the same shop. On 4.10.84 due to Dusshera festival, they closed their shop at 5:00 p.m. At about 7:30 p.m. he went to Gurdwara Singh Sahab, Gandhi Nagar and when he was returning to his house at about 8:15 p.m. five boys were going ahead of him. He knew the names of four boys, Mukesh, who was running a readymade garment shop, and he was residing in his street, Vimal and Ajay @ Pappi and Mukesh s/o. Kartar Singh are well known to him. Fifth boy, whom he can identify, was young. His pet dog was sitting in front of his house. Mukesh s/o.Kartar SIngh gave leg blow to his dog. He asked him as to why he has given leg blow to his dog. On this he replied that they would beat him also. He caught hold of him and all the boys started abusing him and they also gave 2/3 slap blows to him. On hearing the noise, his elder son Richpal Singh also came out of the house and enquired as to what was the matter and started saving him. On this, Mukesh, who runs a shop in their street, took out a knife and attacked Richpal Singh but Richpal

Singh moved away and the tip of the knife hurt him on his abdomen. In the meantime his second son, Jasbir Singh also came to help them, on hearing the noise and he started saving them from those boys. Mukesh s/o.Kartar Singh, Ajay, Vimal and fourth boy exhorted Mukesh that what are you seeking, finish him by the knife blows. On this Mukesh s/o. Dhani Ram made a murderous attack on his son Jasbir Singh and stabbed him with knife on his chest. He as well as his son, Richpal Singh raised alarm to save Jasbir Singh. On this all the five boys ran away from the spot. Blood starting oozing from the chest of Jasbir Singh. He took to Irwin Hospital in an auto - ricikshaw. On reaching the hospital, doctors declared him dead. All the five boys referred above have murdered his son Jasbir Singh by giving him a knife blow with a common intention. Action be taken against them. On this statement of the complainant, Sh.Teja Singh, Investigating Officer made his endorsement and sent the ruqqa through constable Riaz-ul-Hassan for registration of the FIR."

3. In support of their case, prosecution has examined 14 witnesses. No evidence was led by the defence. Statements of all the accused persons were recorded under Section 313 of the Code of Criminal Procedure. All the appellants denied their presence at the spot of the incident.

4. Learned counsel appearing for the appellants have jointly submitted that the judgment of the trial court is based on conjectures and surmises and the appellants have been falsely implicated in a blind murder. The testimony of two witnesses PW-5 and PW-6 who claim themselves as eye-

witnesses are unreliable and not trustworthy; both the said witnesses (PW- 5 & PW-6 are the brother and father of the deceased) were not present at the spot of the incident. It is contended that the testimony of both these witnesses do not inspire any confidence on account of their respective conduct. It has also been contended that although three out of four appellants were named by PW-6 in the statement recorded before the police only a vague description of the fourth alleged assailant (Sudhir Kumar) appellant in CRL.A. 248/1998 was given.

5. It is also contended that the appellants belong to the same area and in fact are the neighbours, hence, known to the family of the victims and it is extremely unusual as to why the father would not have named them at the time of recording of the MLC by the doctor. Attention of the court is drawn to the MLC wherein the word „miscreants‟ has been used. It has also been contended that as per PW-6, he had lifted his son and put him in a three wheeler, whereas clothes of the father were not seized; nor there is any explanation rendered either in the statement under Section 161 Cr.P.C. or during the testimony recorded in court, as to why PW-5 did not accompany his father to the hospital. It is thus contended that the presence of PW-5 is highly doubtful at the spot of the incident.

6. It has also been contended that there is nothing on record to show that compliance of Section 154 and Section 157 Cr.P.C. was made and that the copy of the FIR was sent to the Magistrate soon after it was recorded. It is submitted that the statutory safeguards provided against the police manipulation as per the Punjab Police Rules and more particularly volume-III Chapter 4 were not complied with. It is submitted that this lapse is fatal as it has come on record that an FIR was registered at serial no.278 on 3.10.1984 and thereafter present FIR was registered at serial

No.279 on 4.10.1984 at 10:58 p.m. and thereafter the next FIR is registered only on 8.10.1984 and this period was used to manipulate and falsely implicate the appellants herein.

7. It has also been contended that one of the brothers of the deceased (Harjeet Singh, PW-8), who was residing separately has testified that he reached the house of his father the next morning (on 5.10.1984) at around 9:30 a.m. and in his cross-examination it has been testified that till noon he was not aware of the names of the assailants, which is another factor to show that the FIR was ante-timed and the names of the appellants were included much later.

8. It is the case of the appellant that it is highly improbable that the real brother PW-8 would not be informed of the name of the assailants or he himself would not ask as to who has stabbed his brother. As far as description of the appellant (Sudhir Kumar) is concerned, Mr.Sud, learned senior counsel appearing on his behalf contends that the description given as a young boy, is not the description at all in the eyes of law.

9. Counsels have also argued that in fact the spot of the incident is in great doubt as earth was not lifted from the spot where the alleged incident took place. Relying on the testimony of PW-6 wherein the father had testified that the body was lying on the ground for 10 minutes before he could hail an auto, in such circumstances not finding blood at the spot and not finding blood on the clothes of the father casts a serious doubt with regard to the spot of the incident and the presence of the father of the deceased.

10. Drawing the attention of the court to the site plan which has been prepared, it has been submitted by counsel for the appellants before us that according PW-14 site plan was prepared at the instance and pointing out of Teja Singh (PW-6) whereas Teja Singh has denied that the site plan

was prepared at his instance; moreover, the site plan would show that it was a congested area of small houses and thus it is highly improbable that after the commotion where a young boy is stabbed not a single neighbour joined the investigation and statement of not a single neighbour was recorded and Kishan Lal, at whose instance DD entry was made, even that Kishan Lal was not examined which would show that the prosecution was unsure that Kishan Lal would support their case.

11. In support of his submission that the entire incident is shrouded in mystery, counsel for the appellants have submitted that even the medical evidence has been engineered at the instance of I.O. as it was the consistent case of the prosecution that appellant (Mukesh Kumar s/o.Dhani Ram) had inflicted one knife blow on Jasbir Singh, whereas the post-mortem report revealed that there were not one but two knife blows at a distance of 15 c.ms. In order to falsely implicate the appellants the I.O. sought another opinion from doctor, Bishnu Kumar (PW-1). It is contended that the communication dated 11.12.1984 is suggestive of the opinion sought from doctor.

12. Counsel for the appellants submit that the opinion procured from doctor (Bishnu Kumar) is absurd, as according to him the second injury was caused either by the same weapon during scuffle or while the weapon was being thrust on the chest of the deceased or during the process of its being taken out of the body of the deceased, as the distance between two wounds is 15 c.m., which would make it an impossibility.

13. Reliance is also placed on the cross-examination of PW-1.

14. It is also contended that the cross-examination of PW-1 would show that according to the doctor there is possibility of not one but two weapon which could have been used for causing injuries. Additionally, it has been

contended before us that there is contradiction between the testimonies of PW-5 and PW-6 with regard to the manner the appellants have exhorted (Mukesh Kumar) to finish Jasbir Singh. As per PW-6 the knife was inflicted by Mukesh Kumar s/o. Dhani Ram, who was exhorted by other three appellants by saying „DEKHTE KYA HO, ISE CHAKU MAR KAR KHATAM KAR DO‟. Additionally it is argued that neither there was any motive nor meeting of minds, as initially it was the case of the prosecution that all the four appellants had slapped PW-6 (Teja Singh) and on hearing commotion PW-5 had tried to save his father; he was attacked and when Jasbir Singh entered he was stabbed, it is thus contended that no role can in fact be ascribed to the three assailants; neither there was any meeting of mind, nor any conspiracy to do away with the Jasbir Singh, who was not even present when the initial incident sparked.

15. Reliance is placed on the FSL report by Mr.Hari Haran, learned senior counsel appearing for Mukesh Kumar @ Mukki, appellant in CRL.A. 253/1998. It is pointed out that pant of the deceased was also sent for examination, report of the FSL (Ex.PW-3A) shows that there was a cut on the pant, but in the description provided by PW-5 or PW-6, no such attempt on the legs of the deceased was made, which would additionally show that PW-5 and PW-6 are neither eye witnesses nor they were present at the spot as their description of the incident does not match with the wounds on the body of the deceased. The medical evidence and the post mortem report do not support the stand taken by them in court. Counsel for the appellants submit that even the weapon of offence was not found which makes the entire case of the prosecution unbelievable.

16. Mr.Mukesh Kalia, counsel appearing on behalf of the appellant (Mukesh Kumar) in appeal CRL.A. 261/1998 has submitted that no question has

been put in the statement recorded under Section 313 of the Code of Criminal Procedure to either of the three appellants with regard to the exhorting and in the absence thereof, no case is made out against them. Reliance has been placed in the case of Sujit Biswas Vs. State of Assam reported at (2013) 12 SCC 406 and more particularly paragraph 25, which is reproduced below:

"25. An adverse inference can be drawn against the accused only and only if the incriminating material stands fully established, and the accused is not able to furnish any explanation for the same. However, the accused has the right to remain silent, as he cannot be forced to become a witness against himself."

17. Mr.Feroz Khan Ghazi, learned APP for State and Ms.Aarohi Holani, counsel for the complainant submit that the prosecution has been able to establish their case beyond reasonable doubt. PW-5 and PW-6 are the natural witnesses. It is settled law that in case the testimonies of interested witnesses are trustworthy they alone can form the basis of conviction. It is submitted that merely because PW-5 did not accompany his father to the hospital that by itself would not be fatal to the case of the prosecution, as there is possibility that PW-5 stayed at home to protect the family members, who were in the house. It is also contended that merely because the appellants were not named to the doctor is not a ground for allowing the appeals as PW-6 had named the assailants at the first opportunity available when his statement was recorded by the police on the same date. Counsel also submit that to say that copy of the FIR was not sent to the Magistrate is also not borne out from the evidence as I.O., has testified that copy of the FIR was sent to the Magistrate and being a safeguard the supporting documents would show that the FIR was registered.

18. Learned APP for the State and counsel for the complainant have contended that the discrepancy, if any, in the testimony of both the witnesses (PW-5 and PW-6 ) is on account of delay as the examination-in- chief of PW-6 commenced on 19.11.1990 and the cross-examination stood concluded on 22.2.1997. Similarly the examination-in-chief of PW-5 commenced in on 20.2.1989 and concluded on 20.2.1993. Even otherwise both the counsel contend that the contradictions and improvements do not touch the core issue and thus are not fatal. It is submitted that the name of the 4th assailant was not provided initially but he was sufficiently described. Counsel also submit that the presence of PW-5 is also established by the testimony of PW-7 as his Baniyan was seized soon after the incident which would establish his presence on the fateful night of 4.10.1984.

19. It is also contended by Mr.Feroz Khan Ghazi, learned APP for State and Ms.Aarohi Holani, counsel for the complainant that it is not necessary that the earth with blood would have been taken and it is also not necessary that blood would have been found at the spot as being the month of October convict (Jasbir Singh) would have been well clad and blood may not have been oozed on the ground.

20. Counsel for the State in support of his submission has placed strong reliance in the case of The State Vs. Bal Kishan @ Bali reported at 2006 (130) DLT 242, and more particularly paragraphs 28, 40 to 43, 48 and 53, which are reproduced below:

"28. In Raj Kishore Jha v. State of Bihar and Ors. 2003 VIII AD (SC) 386, it was held:

"The High Court has noted that the names of witnesses do not appear in the first information report. That by itself

cannot be a ground to doubt their evidence as noted by this Court in Bhagwan Singh and Ors. v. State of M.P. , Chittar Lal v. State of Rajasthan AIR SCW 3466 andState of Madhya Pradesh v. Man Singh and Ors. 2003 (6) Supreme

202. There is no requirement of mentioning the names of all witnesses in the first information report."

40. Now, we turn to the improvements made by the witnesses in their statements which have already been discussed above. These are minor and insignificant improvements. It is very difficult to speak the same language after the lapse of so much time. This incident took place on 3rd July, 1980 and the statement of PW4 was recorded on 31st July, 1981 i.e. after the expiry of more than one year. In Bhargavan v. State of Kerala 2003 IX AD SC 403, it was held that normal discrepancy is expected, however, honest or truthful a witness may be, this does not corrode the credibility of the witness. Similar view was taken in State of Maharashtra Jagmohan Singh Kuldip Singh Anand and Ors. 2004 VIII AD SC 381. We have already held that there appears to be a clerical mistake in respect with the name of J.S. Bedi as Jitender Singh Bedi.

41. There is no inkling in the evidence on the record that these witnesses harboured hostility or enmity with the respondent. They appear to have no guile, duplicity, deception, trickery, fraud or craft. We see no reason as to why they should not be taken at their words. To say that they are reliable and honest witnesses is no exaggeration. It must be borne in mind that O.P. Verma PW3 resident of I-48-A, Kirti Nagar, Krishan Murari resident of I-56, Kirti Nagar and J.S. Bedi, PW8 resident of I-46, Kirti Nagar are the natural witnesses. They are immediate neighbours of the deceased. Their presence on the spot is natural and probable.

42. Now, we advert to the testimony of relative witnesses. Their presence on the spot is admitted by the independent witnesses. They are the natural witnesses. Their explanation that they had

come out of the house because of animosity between the parties appears to be quite cogent and plausible. We see no reason why the relatives will rope in respondent falsely and would give benefit to the real assailants. The kith and kin always want that the real culprit should be brought to the book. This is well settled that relationship is not a factor to affect credibility of a witness. In Bhargavan and Ors. v. State of Kerala 2003 IX A.D. S.C. 403 while relying upon Dilip Singh and Ors. v. State of Punjab it was held:-

Speaking through Vivian Bose, J. It was observed:

"we are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesseses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavored to dispel in 'Rameshwar v. State of Rajasthan at p.59. We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."

Again in Masalti and Ors. v. State of U.P. this Court observed (p.209-210 para 14):

But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as

to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

43. Similar view was taken in Harbans Kaur and Anr. v. State of Haryana 2005 III A.D. S.C. 331. In this case eye-witnesses were relatives. No infirmity was found in their cross-examination. Secondly, there was delay in lodging the FIR. It was held that there can be no generalization that whenever there is delay in lodging the FIR, the prosecution case becomes suspect.

48. Secondly it is surprising to note that the respondent-accused did not furnish the names or at least the description of those two assailants, who according to him had attacked the deceased. Even in dark one can give at least the broad description of the assailants. There is no inkling in the evidence on record that he had disclosed the presence of those persons before the police orally or in writing.

53. This argument is lame of strength. In Shrawan Bhadaji Bhirad and Ors. v. State of Maharashtra 2002 IX AD (S.C.) 455 it was held that merely because Doctor who treated victim deposed that victim did not disclose names of accused to him, would not make their identification doubtful."

21. Additionally Ms.Aarohi Holani, has submitted that the photographs placed on record would show that there was blood on the spot of the incident. In response thereto, counsel for the appellants has contended that there is nothing to prove that the photographs are of the spot of the incident as in none of the testimonies it has been testified that the photographs are of the spot where the incident took place.

22. We have heard learned counsel for the parties in detail and also examined the testimonies of the witnesses. Before the rival submissions of counsel for the parties can be considered, we deem it appropriate to analyse the

testimonies of some of the material witnesses.

23. PW-1, Dr.Bishnu Kumar, Professor and Head of the Department of Forensic Medicine, Malulana Azad Medical College, Delhi, has testified that he conducted the post-mortem examination on the body of deceased Jasbir Singh, on 5.10.1984 at 2.00 p.m. and he found the following injuries:

"On external examination of the body, the following injuries were present:-

1. Incised punctured wound 2 x 0.9 cm. on the left side front of chest, oblique both margins were clean cut and both angles were acute situated 2 cm to the left of mid line over sternum just below the attachment of 5th rib, lower outer end being 127 cm above left heel and it was going chest cavity deep.

2. Linear verticle abrasion 3 x 0.2 cm on the right sub-costal margin 13.5 cm from mid line, just outside nipple line as if caused by a pointed weapon."

24. PW-1 also opined that death, in this case, was due to cardiac temponade (heart failure) due to collection of blood in pericardial sac. Consequent upon stab injury heart vie injury No.1. All the injuries were ante mortem and recent. Injury No.1 was caused by a sharp, double edged penetrating weapon and was sufficient to cause death in the ordinary course of nature.

His original post mortem report in this respect is Ex.PW.1/A which is in his hand, bears his signatures. This witness has further testified that subsequently on receipt of an application Ex.PW.1/8 he gave an opinion vide his letter dated 12.12.1984 which is Ex.PW.1/C that the injury No.1 was caused by a sharp double edged pointed weapon, while injury No.2 was caused either by some pointed weapon during scuffle or while the weapon was being thrust on the chest of the deceased or during the

process of its being taken out from the body of the deceased.

25. In his cross-examination, this witness has testified that he had given the location of both the injuries when he examined the deceased. One of the injuries was on the right side at sub-costal margin while the other was on the left hand side of the chest just near the mid line, and in his opinion there is a difference of 15 cm. between these two injuries. This witness did not deny the suggestion that while performing the post mortem he was very much conscious to determine the kind of weapon used in inflicting the two injuries and he has already indicated above. He did not deny the suggestion that while writing the nature of the weapon in causing injury No.1 he had written that it has been caused by a pointed weapon. The following amongst other questions were also put to the witness:

"Q. Is it correct that while describing the weapon used in causing injury No.1, you have definitely written and described the weapon as sharp both sides and pointed? As distinct from just pointed weapon?

A. I have indicated that the injury No.1 was caused by a double edged sharp penetrating weapon which include as a pointed weapon as well, while in relation to injury No.2 I have only used the word pointed weapon, which could be a double edged or single engaged or blunt surface as well.

It is correct that a pointed weapon may have one edge sharp both sharp and none of the edges sharp. Injury No.2 could be caused by a pointed weapon which could be either having both edged blunt or one edge sharp or both edges sharp.

Q. Is it correct that the margins of the wounds determine as to whether the weapon used was having one edge sharp or both edges sharp or blunt and pointed?

A. In cases where a linear abrasion is caused by a pointed

object, margins do not in any way decide whether it has been caused by a single edged, or a double edged or a complete ...........ly blunt edged weapon.

It is incorrect to suggest that my second opinion was on speculation. It was mainly on the scientific evidence present on post mortem examination although no weapon was produced before me.

Q. Is it correct that there is nothing in the nature of injury No.2 to show that it has been caused with a sharp edged weapon?

A. In all cases of linear abrasion as I have stated earlier, they could be caused by either a double edged sharp edged weapon or a single edged weapon or a blunt edged pointed weapon and in such cases there is nothing to say definitely which of the three have been used in that case.

Q. Was the application of Ex.PW 1/B given to you personally by the IO?

A. The IO submitted the application in my office and not to me personally.

Q. Is it correct that while giving your subsequent opinion there was nothing to indicate in the application Ex.PW 1/8 that any person had stabbed twice?

A. There is no indication in the application that the deceased had been stabbed twice by one individual. However, the application stakes that the eye witness say that the victim was stabbed only once in the chest and my post mortem examination also reveals that one stab injury was present on the body of the deceased. As stated earlier I still say that injury No.2 could be caused by a point of a double sharp edged weapon in the process of making the stab injury No.1."

26. PW-4, Balbir Singh, Assistant Drafsman, Crime Branch, Delhi, has testified that on 25.2.1984 he visited the place of occurrence, on the

pointing out of Teja Singh he prepared rough notes of the place of occurrence and thereafter he prepared the scale map. The original drawing was exhibited as Exhibit PW-4/A.

27. PW-5, Richhpal Singh, is the brother of the deceased. He has testified that he runs a shop in the name and style of Khalsa General Store. He has further testified that he, Charanjit Singh, Jasbir Singh (his brothers) and their father, Teja Singh, sit at the said shop. On the eve of Dussehra (4.10.1984), he closed his shop at 5.00 p.m. and returned home. His father left for Gurudwara at 7.30 p.m. He was sitting in his house wearing a banian and trouser, when he heard a commotion outside his house. He came out and saw five persons, namely, Mukesh @ Mukki, s/o Sh.Dhani Ram; Ajay @ Poppy; Vimal; Mukesh Kumar, s/o Kartar Singh; and one more person, whose name he learnt later on as Sudhir. All the four persons he identified in Court except Ajay, who had died. All the four persons were calling names to his father Teja Singh and beating him with fist blows. When he stopped them, Mukesh, s/o, Dhani Ram, attacked him with a knife. He sustained a simple injury on the right side bottom of his abdomen. Meanwhile, Ajay @ Poppy dragged him by his banian. On hearing the alarm, his younger brother, Jasbir Singh, reached there to intervene and save his father. All the three accused persons, Mukesh s/o Kartar Singh, Vimal and Ajay @ Poppy, surrounded his brother, Jasbir Singh. Sudhir stood in front of him. Ajay @ Poppy took off the turban from the head of his brother and threw the same into a drain. All the accused persons except Mukesh Singh s/o Dhani Ram exhorted Mukesh s/o Dhani Ram to finish off Jasbir Singh with a knife. Mukesh s/o Dhani Ram attacked his brother with a knife, as a result of which, he sustained injury on the left side of the chest above the heart. He and his father raised

an alarm whereupon all the five accused persons fled from the spot and ran towards the main bazaar. His father removed Jasbir Singh in an auto to JPN Hospital. Police reached the spot and picked up the turban from the drain. He had told the Police the names of four accused persons. The accused persons had refused to join the TIP.

28. During cross-examination, PW-5 has testified that he was taken to the hospital for medical examination. He denied the suggestion that the injury was self-inflicted. He was confronted with the statement, Exhibit PW- 5/DA, whereupon he testified in Court as well that the accused persons had exhorted Mukesh to finish off his brother. He has also testified in cross-examination that neither any lady from the house nor anyone from the neighbourhood reached the spot. He also testified that Jasbir Singh was a married person with a wife and children. He has further testified that his wife was present in the house at the time of the incident. He denied the suggestion that he was not present at the spot.

29. Further during his cross-examination conducted on behalf of the accused Mukesh, this witness has testified that there are houses on both sides as well as in front of his house. He has also testified that his father is not inimical to or hostile to any accused person. Similarly the accused persons are neither inimical nor hostile towards his father. The accused persons might have slapped his father for one or two minutes. He had heard the voice of his father as well as that of other persons when he came out. None was present at the time of quarrel in between his father and the accused persons. None came to the spot at the time of the incident of stabbing. The entire quarrel/scuffle was over including the stabbing incident within five minutes. He did not see any injury mark on his father nor he himself received any injury, except that of a scratch on abdomen

which tore his bunian. When he went to contact the police on telephone he was wearing a torn bunian. He has told the police on telephone that his brother has been stabbed. The witness then testified that he did not understand the question properly. He had never contacted the police on telephone. He simply contacted his relations on telephone. He contacted his relations on telephone from the house of Kishan Lal who resides in the same lane. He contacted only 2/3 relations on telephone. His brother was removed to the hospital in his presence. He did not accompany his brother to the hospital.

30. PW-5 has also stated in his cross-examination that he remained at his house during this period. He has further testified that he did not recollect as to whether he lifted his brother. He has further testified that he did not see any blood on the ground. He also did not recollect whether his clothes were strained with blood or not.

31. During cross-examination on behalf of the accused Vimal, this witness has testified that he did not see any dog when he came outside his house, neither he heard any barking of the dog. He has also testified that there might have been 40 houses in his lane on either side and he knew 90% of the inhabitants of the houses in his lane. Also during cross-examination he has stated that by the time Mohalla people gathered at the spot the accused persons had already escaped.

32. Further during cross-examination conducted on behalf of the appellant Mukesh @ Muky this witness has testified that his brother, Charanjit Singh, was not present at his house as he had gone to the house of his in- laws. He returned at 10.30/11.00 p.m. Telephonic message was sent to him, and a messenger was also sent. Other relations, who were nearby were informed on the same night about the incident. The remaining

relations were informed afterwards. This witness has further testified that he did not follow the scooter to the hospital neither did he go to the hospital. He has also testified that his father is short statured, he is old and weak. Although during cross-examination, he has testified that the Police had come to their house at 9.00 p.m. yet he did not tell the Police that he had witnessed the occurrence.

33. Another important witness is PW-6, Teja Singh, the father of the deceased. He has testified that he is running a shop along with his sons. On 4.10.1984 because of Dussehra shop was closed and he went home at about 5.00 p.m. He along with his sons were present in the house. At 7.30 p.m. he went to the Gurudwara and returned at about 8.15 p.m. While he was in the gali of his house, he saw five boys going ahead of him. Mukesh s/o Kartar Singh kicked his pet dog and when he objected all the five boys abused him and slapped him (Out of five he identified the four accused persons in the Court). He raised an alarm. His son Richhpal Singh came out of the house and objected; upon which Mukesh s/o Dhani Ram took out a knife and assaulted his son Richhpal Singh but only the tip of the knife touched him and Richhpal did not suffer any major injury. The knife was pointed towards the right abdomen side of Richhpal Singh. There was bleeding and later on he was medically treated. On hearing the noise, his other son Jasbir Singh came out. The accused persons slapped him as a result of which his pagri went off and fell into the nali. All the accused persons except the accused Mukesh s/o Dhani Ram (including the deceased Ajay alias Popi accused) shouted that "DEKHTE KYA HO, ISE CHAKU MAR KAR KHATAM KAR DO." Accused Mukesh son of Dhani Ram gave a knife blow on the chest of Jasbir Singh. This witness has further testified that he and his son Richhpal Singh shouted that they had

knifed his son and all five of them ran towards the bazaar on the main road. He removed the injured Jasbir Singh in a three wheeler to Irwin Hospital. The doctor declared him dead at the hospital. He made the statement to the doctor narrating the incident and the Doctor wrote his statement.

34. In his cross-examination on behalf of the accused Sudhir, this witness has testified that after the occurrence, his other injured son Richhpal Singh had not accompanied him to the Hospital when he had removed the injured Jasbir. The doctor in the hospital did not take his signature on his statement. When the news of the death of his son Jasbir was broken to him, he became unconscious. Further during his cross-examination he has testified that the police had recorded his statement on two occasions i.e., on 4.10.1984 and 6.10.1984. In his statement on 4th and 6th October, 1984 he had mentioned that he knew the accused Sudhir but he had not given any description of the vocation of accused Sudhir as the same had not been asked for from him by the police. (Confronted with Ex.PW 6/A where it is not recorded that the witness knew the accused Sudhir and what is recorded therein is that the fifth boy was of young age and that he can identify him). This witness denied the suggestion that the accused Sudhir was neither known to him prior to the occurrence nor he was present at the spot nor had he participated in the incident.

35. During his cross-examination on behalf of accused Mukesh s/o Pratap Singh, this witness has testified that his son had been inflicted one knife blow. Prior to the inflicting of the knife blow, there was a joint exhortation by the four accused persons except the actual assailant that "Maar Chaku".

36. During cross-examination this witness has also testified that he reached the hospital with his son Jasbir; and there was nobody else with them.

Even after Jasbir was declared dead nobody from the family had come to the hospital. On hearing the news of his son, he had become unconscious and even after he gained consciousness he did not see any member of his family around him. He has also testified that he engaged the scooter himself for taking his injured son to the hospital and with the help of someone his son was put in the scooter as his son was not in a position to sit in the scooter. During cross-examination, this witness has further stated that he did not tell the names of the persons, who stabbed his son to the Doctor.

37. PW-8, Harjeet Singh, another brother of the deceased, has testified that he identified the dead body of his younger brother at the mortuary. During cross-examination, this witness has stated that he lived at a distance of 4-5 kms. away from the house of his father. There were differences between brothers on the one side and the father on the other side. He learnt about the murder of his brother the next morning and came to the house of his father. He had reached the house of his father at about 9.30 a.m. He did not see any resident present at the house when he reached. This witness has further testified that his uncle Mehnga Ram was present. He has also testified that his statement was recorded during afternoon at about 1.00 or 2.00 p.m. By the time his statement was recorded by the Police, he had not come to know the name of the assailants.

38. PW-9, SI Raj Kumar, has testified that he wrote the FIR in this case. A carbon copy of the FIR has been exhibited as Exhibit PW-9/A. In his cross-examination, he has testified that the earlier FIR No.278 is dated 3/10/84 at 3.15 pm and FIR no.279 is dated 4/10/1984 at 10.40 PM. FIR no.280 is dated 8/10/84 at 10.45 am. He has further stated that FIR no.278 was sent as untraced by Shri S.K.Sarvaria MM on 7.5.85. Name,

Number and departure of the Constable who took the special report are not mentioned in FIR. He has denied the suggestion that any Rukka was not received or that the FIR was concocted later on.

39. PW-13, Dr.V.K. Goyal, has proved the CFSL report.

40. Another important witness is PW-14, Inspr.Balwan Singh. He has testified that on 4.10.1984 he was posted at Police Station Ghandi Nagar. He had received DD No.13-A marked X and on receipt of the DD he along with SI Som Prakash, Const.Riazul Haq went to the spot when he learnt that the injured had already been removed to the hospital. Teja Singh was present in the hospital. His statement was recorded, he sent the same to the Police Station for registration of the case and prepared a rukka. The dead body of the deceased was sent for post-mortem. He has further testified that he reached the spot at 8.50 but no witness was available at the spot. The spot was situated in a thickly populated area.

41. During cross-examination, this witness has testified that he did not know at what time the special report was delivered to the Ilaka Magistrate because it was sent by the SHO.

42. The arguments of counsel for the appellants can be summarised as under:

i) The spot of the incident is doubtful as no earth control was removed and neither blood was found at the spot of the incident;

ii) Testimonies of PW-5 and PW-6 are unreliable as they were not present at the spot of the incident;

iii) Despite knowing the names of the assailants the father of the deceased stated in the MLC that his son was murdered by miscreants;

iv) It is unusual that an old and infirm father would remove his

injured son in a three wheeler to the hospital when his young son was present at the spot;

v) Clothes of the father soaked in blood were not seized;

vi) Nothing on record to show compliance of Sections 154 and 157 of the Code of Criminal Procedure;

vii) PW-8, Harjit Singh came at the spot only the next morning at 9.30 and he has testified that he was not aware about the names of the assailants till afternoon;

              viii)    FIR is ante-dated;
                ix)    Medical evidence has been engineered as according to the

eye-witness one knife blow was inflicted whereas the medical evidence suggests of two blows;

x) Despite the area being thickly populated statement of single neighbour was not recorded.

43. The arguments of learned counsel for the State and counsel for the complainant can be summarised as under:

i) Case is proved beyond reasonable doubt;

ii) Minor contradictions, which do not go to the root of the matter, cannot make the testimonies of the witnesses unreliable;

iii) Assailants were named at the first opportunity available to the Police;

iv) Blood would not be found at the spot as in the month of October the deceased would be wearing warm clothes because of which blood would not ooze out.

44. While there is no quarrel to the proposition that the testimony of partisan or interested witnesses should not be mechanically discarded, there is also

no quarrel to the proposition that rejection of the evidence on the sole ground that the evidence is of an interested witness, would lead to failure of justice. The Supreme Court of India has repeatedly held that the Courts must be cautious and careful while weighing the evidence of interested witnesses. (See AIR 1965 Supreme Court 202; AIR 2003 SC 3613; 2007 (3) JT 501; and JT 2007 (5) SC 145)

45. In the case of Sharad Birdhichand Sarda, v. State of Maharashtra, reported at AIR 1984 Supreme Court 1622, the Apex Court held that the testimonies of interested witnesses should be examined carefully and cautiously on account of tendency to exaggerate and add facts, which may not have been stated to them at all. Para 48 of the judgment reads as under:

"48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it."

46. Both PW-5 and PW-6 claimed to be the eye-witnesses.

47. It has been submitted before us that the testimonies of these two witnesses, PW-5 brother and PW-6 father, are unreliable as both PW-5 and PW-6 were not present at the spot of the incident. Closely connected to this argument is the arguments of learned counsel for the appellant that the incident did not take place at the alleged spot.

48. As per the testimony of PW-5 their shop was closed at 5.00 p.m. on account of Dussehra. His father had gone to the Gurudwara at 7.30 p.m. He was present inside his house and on hearing of commotion he came out and saw five accused persons were calling names to his father and beating him with fist blows. On account of his protest, he was attacked by Mukesh s/o Dhani Ram with a knife. He had sustained a simple injury on the right side bottom of his abdomen, when his brother, Jasbir Singh, also reached there and tried to intervene to save his father. Upon which Jasbir Singh was stabbed by Mukesh s/o Dhani Ram; the stab injury was inflicted on the left side of his chest above the heart. He and his father raised an alarm, upon which all five accused persons fled from the spot.

49. Teja Singh, PW-6 (father of PW-5), has also testified that he closed his shop at 5.00 p.m. on account of Dussehra. Thereafter he had gone to the Gurudwara and when he was returning from the Gurudwara at about 8.15 p.m., five accused persons were ahead of him. Mukesh (one of the five boys) had kicked his dog and when he objected, all the five boys abused him and slapped him. He raised an alarm whereupon his son, Richhpal Singh came out from inside the house and he was attacked with a knife. Thereafter his son, Jasbir Singh, came out. All the accused persons, except accused Mukesh Singh s/o Dhani Ram, shouted that "DEKHTE KYA HO, ISE CHAKU MAR KAR KHATAM KAR DO", whereupon Mukesh s/o

Dhani Ram gave a knife blow on the chest of Jasbir Singh. He had then removed his injured son, Jasbir Singh, in a three wheeler scooter, to Ervin Hospital. The Doctor declared him brought dead. He had made a statement to Doctor narrating the incident.

50. We find the testimonies of PW-5 and PW-6 to be unreliable for the reasons that conduct of PW-5 is highly unusual and improbable. In case, he was present at the spot, it is virtually unthinkable that he would allow his old infirm father to put his injured son in a three wheeler scooter and take him to the hospital while he stayed at home.

51. It may be noticed that PW-5 has testified during cross-examination that he did not accompany his father and in fact did not go the hospital. He also did not recollect as to who lifted his brother to be put in the scooter. He has also stated in his cross-examination that he did not see any blood on the ground, neither did he recollect whether there was blood on his clothes. It is again very unusual that PW-5 would not try to save his brother or after being stabbed not put him in the three wheeler and accompany him and his father to the hospital. It is also unusual that his clothes would not be soaked with blood. The testimony of this witness also becomes unreliable as according to him his brother was stabbed once whereas as per the post-mortem report there were two stab wounds. We also find it unusual that according to PW-6, Teja Singh, the appellants had kicked the pet dog, which was the genesis of the incident, but in the statement of PW-5, Richpal Singh, there is no mention at all about any pet dog, leave alone the appellants having kicked the pet dog.

52. The father, PW-6, has testified that he took his son in a three wheeler.

Neither his clothes were seized nor there was any evidence that his clothes were soaked in blood, nor his clothes were seized and sent to the FSL.

Another aspect, which creates a doubt with regard to the testimony of this witness, is that PW-6, who knew the names of four out of the five assailants, informed the Doctor that his son had been injured by some miscreants. Although it is not mandatory for the father to have given the names of the assailants to the Doctor but when he described the assailants as miscreants, despite having known their names creates a doubt in the testimony of PW-6, coupled with the fact that blood was not collected and not found from the spot of the incident.

53. The submissions of counsel for the State that the incident took place in the month of October and the deceased would be wearing woollen clothes and the blood would not have oozed out of the clothes is without any force for the reasons that the month of October is not cold and having regard to the nature of injuries even if the deceased was wearing woollens blood would certainly have fallen on the ground.

54. In the case of Lakshmi Singh and Others v. State of Bihar, reported at AIR 1976 Supreme Court 2263, it was held as under:

"13. To add to this another important circumstances is the omission on the part of the prosecution to send the bloodstained earth found at the place of occurrence for chemical examination which could have fixed the situs of the assault. In almost all criminal cases, the bloodstained earth found from the place of occurrence is invariably sent to the Chemical Examiner and his report along with the earth is produced in the Court, and yet this is one exceptional case where this procedure was departed from for reasons best known to the prosecution. This also, therefore, shows that the defence version may be true. It is well settled that it is not necessary for the defence to prove its case with the same rigour as the prosecution is required to prove its case, and it is sufficient if the defence succeeds in throwing a reasonable doubt on the prosecution case which is sufficient to enable the Court to reject the prosecution version."

55. Both PW-5 and PW-6 have testified that their house is situated in a densely populated area. During cross-exmination, PW-5 has testified that there are forty houses in his lane on either side. In fact PW-5 has testified that he knows 90% of the habitants of the houses in his lane. Similar statement has been made by PW-6 father. It is highly unusual that in the entire commotion (when five boys called PW-6 by name and slapped him; thereafter one boy stabbed PW-5 at the first instance and thereafter Jasbir Singh); not a single neighbour either saw the incident or came to the spot of the incident. For the reasons stated above the presence of PW-5 and PW-6 at the spot of the incident itself becomes doubtful.

56. We are conscious of the fact that public persons avoid joining the investigation but having regard to the area in question and the number of houses, it is highly improbable that not a single neighbour would either join the investigation or at least come to the spot of the incident.

57. Another reason why the testimonies of PW-5 and PW-6 are unreliable is that both these witnesses, who claim to be present at the spot and have witnessed the incident, have deposed that Jasbir Singh was stabbed only once, whereas as per the post-mortem report there were two injuries on the body of the deceased.

58. Having held that the testimonies of PW-5 and PW-6 are not reliable, we have examined the communication dated 11.12.1984, addressed by the Investigation Officer to the Professor and Head of the Department, Forensic, Maulana Azad Medical College. The communication dated 11.12.1984 reads as under:

"The Professor & Head of the Dept. Of Forensic Medicine,

Maulana Azad Medical College, New Delhi.

Sub: Medical opinion in the case FIR No.279 dt.4.10.84 u/Ss.302/34 IPC P.S. Gandhi Nagar regarding death of Sh.Jasbir Singh.

Sir,

On 5.10.84 post-mortem (Vide) No.416/84 was conducted on the dead body of Sh.Jasbir Singh s/o.Shri Teja Singh r/o.IX/6682, Janta Gali, P.S. Gandhi Nagar, Delhi.

In this report two external injuries have been given. Injury No.1 by a sharp double edge penetrating weapon and injury No.2 by a pointed weapon.

The eye-witnesses say that the victim was stabled only once in the chest by the assailant while the later was standing in front of the victim and quite near him.

It is possible that injury no.2 might have been caused by the tip of the weapon which had caused the injury no.1 at the time when it was pulled out of the wound of injury no.1 by the assailant."

Yours faithfully, Balwant Singh P.S. Gandhi Nagar"

59. Reading of this communication would show that reference is made to the post-mortem report as per which there are two injuries. The Professor is informed that the eye-witnesses have stated that victim was stabbed only once. What is surprising is the explanation tendered by Balwan Singh himself in the last para of the letter, which reads as under:

"It is possible that injury no.2 might have been caused by the tip of the weapon which had caused the injury no.1 at the time when it was pulled out of the wound of injury no.1 by the assailant."

60. Thereafter the supplementary opinion was given by the Professor & Head of the Department, Forensic Medicine, Maulana Azad Medical College.

We find issuance of such a communication and the reply received is not free from suspicion as if the Police wanted to fill up the lacunae in the evidence of PW-5 and PW-6. This, in our view, is yet another factor which would show that PW-5 and PW-6 were not present at the spot of the incident.

61. We find force in the submission made by learned counsel for the appellants that to suggest second injury was caused by some weapon or when the weapon was being taken out of the body of the deceased is virtually impossible as the distance between the two wounds is 15 cms.

62. We also find that as per the evidence of PW-6, Mukesh was exhorted by three appellants saying that "DEKHTE KYA HO, ISE CHAKU MAR KAR KHATAM KAR DO", however, this does not find mention in the testimony of PW-5.

63. As per FSL report exhibit PW-3A there was a cut on the pants of the deceased but in the description provided by PW-5 and PW-6 no such attempt on the legs of the deceased having been made was stated, which would additionally show that there was neither any eye-witness nor anyone was present at the spot.

64. A perusal of the FIR, more particularly column at Sl.no.7, shows that a copy of the FIR was sent to the Illaka Magistrate but no evidence has been led as to whether a copy of the FIR was sent to the Illaka Magistrate or not

and as to when it was sent.

65. Paras 24.1 and 24.2, Chapter XXIV, Volume III, of Punjab Police Rules read as under:

"24.1.First Information how recorded.-- (1)Sections 154 and 155, Code of Criminal Procedure, provide that every information relating to an offence, whether cognizable or non-cognizable, shall be recorded in writing by the officer incharge of a police station.

The distinction between the form of reports required by the above- mentioned two sections has been defined as follows by the Punjab Chief Court (now High Court):--

Every information covered by section 154, Criminal Procedure Code, must be reduced to writing as provided in that section and the substance thereof must be entered in the police station daily diary, which is the book provided for the purpose. It is only information which raises a reasonable suspicion of the commission of a cognizable offence within the jurisdiction of the police officer to whom it is given which compels actions under Section 157, Criminal Procedure Code.

24.12.Special reports from Police stations:--(1)Every officer in charge of a police station shall, as soon as possible after he received information of the commission within his jurisdiction of an offence mentioned in the subjoined table, submit a vernacular special report in Form 24.12(1) to the officer, or officers, mentioned in the third column of the table: provided that if a first information report containing the same information is required by law to be sent to any such officer, and is sent with equal despatch, no special report need be sent to the officers who receive first information reports.

(2)Vernacular special reports and first information reports sent in lieu of them shall be enclosed in red envelopes."

66. For the reasons stated above and the absence of record to show that copy of the FIR was sent to the Illaka Magistrate gains importance.

67. In Thanedar Singh v. State of M.P.,(2002) 1 SCC 487, relied upon and

cited the previous judgment in Meharaj Singh v. State of U.P.1994 (5) SCC 188, the court had held that:

"12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, Crl.A 288/2011, Crl.A 402/2011, Crl.A 403/2011 & Crl. M. (Bail) 2196/2011 Page 20 prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed

and had not been recorded till the inquest proceedings were over at the spot by PW 8."

(emphasis added)

68. In the absence of any proof that the copy of the FIR was sent to the Illaka Magistrate or when it was sent and having held the testimonies of PW-5 and PW-6, who claim themselves to be the eye-witnesses, to be unreliable and having regard to the fact that in this case FIR was lodged on 4.10.1984 at 10.58 at Sl.No.279 and thereafter the next FIR was lodged only on 8.10.1984, creates a doubt as to whether the FIR was manipulated and the appellants were falsely implicated. It is for this reason that the safeguards are provided under Sections 154 and 157 of the Code of Criminal Procedure and, thus, it would show that the investigation was tainted.

69. Another reason, which points out towards the investigation being tainted and the FIR being ante-dated, is that one of the brothers, who reached the house the following day at 9.30 a.m. was not informed about the names of the assailants, neither did he enquire the names of the assailants, who had murdered his real brother till the afternoon, as testified by him. We also find it unusual that despite wife of the deceased present in the house, she did not accompany her injured husband to the hospital nor her statement was recorded.

70. In the case of Sujit Biswas v. State of Assam, reported at (2013) 12 SCC 406, it was held that suspicion, however, grave cannot take the place of proof. Para 13 of the judgment reads as under:

"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be‟ proved, and something that `will be proved‟. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that

the mental distance between `may be‟ and `must be‟ is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be‟ true and `must be‟ true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be‟ true and `must be‟ true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State, (2012) 5 SCC 777).

71. In the case of Datar Singh v. The State of Punjab, reported at (1975) 4 SCC 272, it was held as under:

"3. It is often difficult for Courts of law to arrive at the real truth in criminal cases. The judicial process can only operate on the firm foundations of actual and credible evidence on record. Mere suspicion or suspicious circumstances cannot relieve, the prosecution of its primary duty of proving its case against an accused person beyond reasonable doubt. Courts of justice cannot be swayed by sentiment or prejudice against a person accused of the very reprehensible crimp, of patricide. They cannot even act on some conviction that an accused person has committed a crime unless his offence is proved by satisfactory evidence of it on record. If the pieces of evidence on which the prosecution closes to rest its case are so brittle that they crumble when subjected to close and critical examination so that the whole super-structure

built on such insecure foundations collapses, proof of some incriminating circumstances, which might have given support to merely defective evidence cannot avert a failure of the prosecution case."

72. In the case of Majjal v. State of Haryana, reported at (2013) 6 SCC 798, it was held that the High Court, being the Court of first appeal, must consider whether the trial court‟s assessment of evidence and its opinion regarding conviction deserves to be confirmed.

73. For the reasons stated hereinabove, present appeals are allowed, the impugned judgment is set aside and the bail bonds stand cancelled. Let trial court record be returned.

G.S.SISTANI, J

SANGITA DHINGRA SEHGAL, J APRIL 30, 2015 ssn/msr