Delhi High Court
Giani Ram vs State on 18 July, 2008
Author: P.K.Bhasin
Bench: Vikramajit Sen, P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% CRL. APPEAL NO. 7 OF 1993
+ Date of Decision: 18th July, 2008
# GIANI RAM ...Appellant
! Through: Mr. Dushyant Sisodia and
Sanjay Kumar Pandey, Advocate.
versus
$ STATE ...Respondent
^ Through: Mr. Sunil Sharma,
Additional Standing Counsel.
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the digest?
JUDGMENT
P.K.BHASIN, J:
This appeal has been filed by the appellant against his conviction under Section 302 of the Indian Penal Code („IPC‟ for short) awarded by learned Additional Sessions Judge vide judgment dated 14th January, 1993 and life imprisonment awarded to him vide order dated 15th January, 1993 in Sessions case No. 165/1988 arising out of FIR No. 262/1987 registered at Najafgarh police station on 18-07-1987.
2. Concisely stated, the case of the prosecution leading to the trial of the appellant for the offence of murder has been noted by the learned Additional Sessions Judge in his judgment and the same is as follows:-
"That on 18.7.1087 at about 3.30 AM Shri Prakash son of Prabhu Ram lodged a report in P.S. Najafgarh that his uncle Faqira was residing in the house opposite to his house and that Giani Ram was living in his adjoining house and that Giani Ram used to pick up quarrel with Faqira and his family members on petty matters and he used to object to sleeping of Faqira in the gali and on that night Faqira son of Roshan was sleeping on a cot in the gali outside the house and that the complainant was sleeping in the court yard of his house and at about 2.30 AM Giani Ram went near the cot of Faqira and started abusing him in filthy language and asked him to remove his cot from the gali and that Faqira asked him not to abuse and on hearing the noise Tara Chand son of Faqira and Misri wife of Faqira also came there and Giani Ram lifted Faqira from his testicles and neck and after lifting him threw him on the ground and Giani Ram said "SALE AAJ SARA HE TANTA KHATAM KAR DETA HOON" and that Faqira died on the spot and they tried to apprehend Giani Ram but he succeeded in running away towards his house by pushing them and then jumped from the roof of his house towards the other side and ran away. He further Crl. A. No. 7/1993 2 stated that many persons on hearing the noise had collected there and that he and Tara Chand son of Faqira had come to the police station to lodge the complaint and that on the statement of Siri Parkash a case was registered........................."
3. The autopsy surgeon, Dr. L.T. Ramani who was examined as PW-7, upon post-mortem examination of the dead body of the deceased had found the following external and internal injuries:
(A) External injuries :
1. Multiple abrasions, scattered on the right side waist region and lumber spine area 5" x 4".
2. Haematoma on the right occipito - partial region over 2" x 2" area.
(B) Internal injuries :
Blood clot over right occipital region.
Skull bones were intact, brain showed thin sheet of subdural hemorrhage all over.
The base of the skull was normal. Neck structures were normal. Ribs were intact.
Lungs were adherent to the chest wall and showed old T.B. Regions. Heart was normal. The stomach was empty. No typical smell was detected in the stomach contents. Other abdominal organs were normal.
In the opinion of the autopsy surgeon cause of death of the deceased was „due to intra cranial haemorrhage consequent upon head injury.‟ Crl. A. No. 7/1993 3
4. After completion of the investigation charge-sheet was filed by the police in the Court of Metropolitan Magistrate under Section 304 IPC although initially the FIR was registered for the offence punishable under Section 302 IPC. After commitment of the case to the Court of Sessions, however, charge under Section 302 IPC was framed against the appellant to which he pleaded not guilty and claimed trial. In order to prove its case prosecution had examined as many as 12 witnesses out of whom four were eye- witnesses of the occurrence. After the examination of prosecution witnesses the appellant was examined under Section 313 Cr.P.C. wherein he denied all the allegations levelled against him and claimed as under:-
"I was not on very good terms with the family of the deceased. Every now and then they used to threaten me. On the day of incident I was sleeping inside my house. At about 2-2.30 a.m. I heard some noise from outside in the Gali, I went out and saw that Faqira was lying dead on the cot and his relatives i.e. witnesses in this case were saying that Faqira had fallen by an accident whereby he suffered some external injuries and had died. On seeing me there Tara Chand and Siri Parkash started abusing me and told me why I had come there. Now I should go away.
Observing their tempers I went inside my house and remained there. On the next day the police came and I was informed that I have been accused of throwing Faqira on the ground."Crl. A. No. 7/1993 4
Appellant also examined two witnesses to substantiate his aforesaid version.
5. We have heard the learned counsel for the appellant and the learned Additional Standing Counsel for the State and with their assistance we have also gone through the evidence adduced by the prosecution as well as the appellant.
6. The prosecution had sought to establish its case on the basis of evidence of four eye-witnesses of the incident. Those eye-witnesses are PW-2 Tara Chand, son of the deceased, PW-8 Siri Prakash, who as per the statement of the widow of the deceased during inquest proceedings is the son of her jeth and was living in the house next to the house of the deceased and was also the complainant of the present case on whose complaint to the police FIR was registered, PW-9 Smt. Misri, widow of the deceased and PW-10 Smt. Khazani, who was also related to the deceased, as per the investigating officer, and was living in the neighborhood of the deceased. The learned trial Judge found the evidence of these eye-witnesses reliable and corroborating each Crl. A. No. 7/1993 5 other on all aspects and disbelieved the evidence of the two defence witnesses who had been examined to show that they were informed by the family members of the deceased that, in fact, the deceased had fallen and as a result thereof had died and also that the appellant-accused had come to the spot after they had reached there. The learned counsel for the appellant had submitted that there were many infirmities in the prosecution case and none of the aforesaid four prosecution witnesses, all of whom are related to the deceased and so are interested witnesses, could be said to have witnessed the incident as claimed by them in their parrot like statements. It was also submitted that, in any case, even if the version of the eye- witnesses regarding the incident is accepted no case would be made out for convicting the appellant-accused under Section 302 IPC. Learned counsel also contended that the prosecution case was that the appellant-accused had lifted the deceased and thrown him on the ground but from that act of the accused it could not be said that he intended to cause the death of the deceased nor any intention to cause any serious injury to the deceased which was likely to cause death could be imputed or the accused Crl. A. No. 7/1993 6 had the knowledge that due to his act of throwing the deceased his death was likely result and so neither the offence of murder was made out nor the offence of culpable homicide not amounting to murder punishable under Section 304 IPC for which offence the investigating agency had charge-sheeted the accused and at the most the appellant-accused could be held guilty under Section 323 IPC for having caused simple injury to the deceased. In support of this submission the learned counsel sought to rely upon the injuries noticed on the dead body of the deceased at the time of post-mortem of the deceased, which he have already noticed. On the other hand, learned additional public prosecutor contended that all these eye witnesses were wholly reliable and nothing could be elicited from them in their cross-examination which could discredit them. In order to appreciate the rival submissions in respect of the version of the incident given by the four eye witnesses we deem it appropriate to reproduce verbatim whatever they deposed before the trial Court and thereafter we shall proceed to examine if the learned Trial Court had rightly relied upon their evidence or not.
Crl. A. No. 7/1993 7
7. PW-2 Tara Chand is one of the four eye witnesses examined by the prosecution. He is the son of the deceased and this is what he deposed regarding the incident:-
"Deceased Faqira was my father. I know the accused present in court. He is my neighbour. My father used to put his cot in the gali and the accused to object to the same. On 18.7.1987 my father was sleeping outside his house in the gali. I was sleeping on the roof of the house. At about 2.30 a.m. accused Giani Ram came there and started abusing my father in filthy language and stated that why he has placed his cot in the gali. My father asked him as to why he was abusing. I, Parkash and my mother reached the spot. He caught hold of my father by his testicles and also caught hold of his neck, lift him and threw him on the ground saying "Aaj sara he tanta khatam kar deta hoon". After throwing my father on the ground, the accused present in the court ran inside his house and from there he ran away after climbing on the roof. My father died at the spot and we lifted him and put him on the cot. Then I and Parkash went to the police station. Parkash lodged a complaint in the police station. Then we and the police came at the spot. I joined the inquest proceedings and identified the dead body of my father. "
8. The version of the incident given by PW-8 Siri Prakash, the complainant, is as under:-
"I know the accused present in court. He is a resident of village Khera. The deceased was also known to me as he was also a resident of my village. On 18.7.1987 I was sleeping in the space outside my house. The deceased Faqira was sleeping on a cot in the gali. At about 2.30 a.m. I heard accused abusing Faqira and Faqira was Crl. A. No. 7/1993 8 asking the accused as to why he was abusing. I reached at the spot. Tara chand, Misri, Giani and many other persons had collected there. The accused gave slaps and fist blows to Faqira. The accused caught hold of Faqira from his testicles and neck and lifted him and threw him on the ground. Faqira died at the spot. The accused ran away from the spot after entering his house and slipped away from the roof of his house. Thereafter Tara Chand and I went to the police station and we lodged a report in the police station. FIR Ex. PW-8/A bears my signatures at point 'A'. It bears my signatures at point 'A. Myself, police officials and Tara Chand came back at the spot together..............."
9. PW-9 Smt. Misri is the widow of the deceased. She deposed about the incident as under:-
"Faqira deceased was my husband. I know the accused present in court. He is a resident of my village. About 4-5 years back my husband Faqira was sleeping in the gali in front of the entrance road of our house. At about 2.30 a.m. We heard the noise of the accused as he was abusing my husband as to why he was sleeping in the gali. Tara chand, myself had come out of the house on hearing noise. Khazani and Siri Parkash had also reached there. The other persons who were sleeping in the gali had not come to the spot after hearing noise. My husband asked the accused as to why he was abusing. The accused caught hold of my husband from his testicles and from the neck and lifted him up and then threw him on the ground. The accused ran away from the spot and went to the roof of his house and slipped away.........................."Crl. A. No. 7/1993 9
10. The testimony of PW-10 Smt. Khazani, neighbour of the accused as well as the deceased, is as under:-
"I know the accused present in court. I also know the deceased Faqira. About 4-5 years back Faqira was sleeping in the gali outside his house. At about 2.30 AM we heard the noise. We heard the noise of the accused abusing Faqira. I do not know on what account accused was abusing him. I came to the spot. Shri Parkash, Misri and Tara Chand had also reached there. Faqira asked the accused as to why he was abusing him. Accused caught the deceased from his testicles and neck and lifted him up and threw him on the ground. Faqira died at the spot."
11. It is the prosecution case itself that the relations between the deceased with the accused and his family members were strained and there used to be quarrels between them even before the present incident. This was admitted by these witnesses in their cross-examination. As per the prosecution case the quarrels used to be because of the deceased sleeping in the gali. While appreciating the evidence of the so-called eye witnesses we will have to keep this fact in mind as also the fact that all of them are related to the deceased. The investigating officer(PW-12) had stated in his cross-examination that he had recorded the statements of all the witnesses who were related to the deceased Crl. A. No. 7/1993 10 but not of public persons who were present at the spot since none of them had agreed to make any statement and this statement of the investigating officer supports the submission of the counsel for the accused that even Pw-8 Siri Prakash and PW-10 Smt. Khazani are related to the deceased. We shall first of all take up the claim of the widow and the son of the deceased of their being the eye witnesses of the incident. We have already reproduced the relevant portions from their statements on oath made during the trial. There is no doubt that both of them have given a consistent version of the incident which they claimed to have themselves witnessed. However, their claim of being eye witnesses got destroyed during the cross-examination of PW-10 Khazani who stated in her cross-examination that PW-2 Tara Chand and PW-9 Smt. Misri had reached the spot after the accused had run away from there after throwing the deceased on the ground. This statement of PW-10 even otherwise appears to be correct also since the FIR is shown to have been registered on the complaint of PW-8 and not on the complaint of Tara Chand, son of the deceased. If Tara Chand had witnessed the incident, in normal course, he himself would have lodged the Crl. A. No. 7/1993 11 complaint at the police station. Registration of the FIR on the basis of the statement of Siri Prakash shows that Tara Chand himself had not witnessed the incident. In any case, this circumstance is sufficient to introduce an element of doubt in the claim of Tara Chand of his being an eye witness.
12. The statement of Tara Chand as well as that of the widow of the deceased that they had seen the incident becomes doubtful for another reason also. If they were really present at the place of occurrence they would have definitely tried to rush forward to save the deceased which they admittedly did not do. The accused was not armed at all. These two witnesses claim to have seen the deceased being lifted and thrown down from a distance of only 4-5 feet still none of them even made an attempt to save the deceased. So, their unnatural conduct coupled with the statement of PW-10 that they (PWs 2 and 9) had reached the spot after the incident was over makes their presence at the spot at the time of the incident highly doubtful. In this regard we may make a useful reference to a judgment of the Hon‟ble Supreme Court in Meharaj Singh v. State of Uttar Pradesh, 1995 Crl. A. No. 7/1993 12 Cri.L.J. 457, cited by the learned counsel for the appellant in support of his argument that the unnatural conduct of the eye- witnesses to the incident in the present case renders their presence at the spot at the time of the commission of the alleged offence doubtful. In the said decision of the Hon‟ble Supreme Court one of the eye witnesses to the occurrence was the widow of the deceased and her evidence was not accepted by the Hon‟ble Supreme Court because of her unnatural conduct at the time of the incident. In para no. 13 of the judgment this is how the Hon‟ble Supreme Court dealt with the evidence of the widow of the deceased:
"It appears that it was a blind murder and none of the eye-witnesses were actually present at the scene. The ante timing of the FIR was obviously made to introduce eye-witnesses to support the prosecution case. We may demonstrate this by noticing that though PW-3 Smt. Kamlesh the widow of the deceased claimed that she was present with her husband at the time of the occurrence her conduct was so unnatural that not only she did not try to save her husband by trying to provide a cover but even after her husband fell down and was inflicted repeated injuries with the knife by the appellant Meharaj Singh, she did not even try to go anywhere near her husband and even later on held his head in her lap and try to provide some comfort to him. This becomes obvious from the absence of any blood stains on her clothes. She admitted that she had not even received a scratch during the occurrence. In a situation like this, the normal conduct of any wife would be firstly to make an effort to save her husband even by taking the blow on herself and if that is not possible then at least to go so close to his person, at Crl. A. No. 7/1993 13 least after the assailants had left.................."
From the aforesaid paragraph extracted from the judgment of the Hon‟ble Supreme Court it is clear that the Hon‟ble Supreme Court expected the widow of the deceased to have made an attempt to save her husband despite the fact that he was being stabbed with the knife by the accused. In the present case, as already noticed, the accused was having no weapon at all with him at the time of the incident and he could have been easily stopped from causing any harm to the deceased and definitely an attempt could have been made by his son and the widow to save him from the accused. In this regard, the submission of the learned prosecutor was that just because the son and the widow of the deceased did not react in a manner which was expected of them their evidence cannot be considered as doubtful since different people may react differently in a given situation and it is not that every witness of a crime can gather courage to prevent the occurrence of a crime. However, in the present case the reaction demonstrated by the son and widow of the deceased at the time of the incident was so improbable and inconceivable that it has to be dubbed as highly unnatural which definitely Crl. A. No. 7/1993 14 makes their presence at the spot at the time of the commission of the offence highly doubtful.
13. The statement of PW-2 Tara Chand becomes unreliable also for the reason that in his cross-examination he had stated that his police statement have been read over and explained to him a day before he had come to the Court for his evidence which shows that whatever he had deposed before the Court was actually whatever he had read in his statement under Section 161 Cr.P.C. and not what he had actually witnessed with his own eyes.
14. We now come to the evidence of other two eye-witnesses. They are PW-8 and PW-10. The relevant portions of their evidence have already been reproduced by us. There is no doubt that both of them deposed as per the prosecution case and categorically claimed the appellant-accused to be responsible for the death of the deceased. These two witnesses are also related to the deceased and they also did not even make any attempt to save the deceased. PW-8 categorically stated in his cross-examination that he had not tried to save the deceased from the hands of the Crl. A. No. 7/1993 15 accused when he was giving fists blows to the deceased. PWs 8 and 10 had also stated in cross-examination that none had tried to apprehend the accused nor was he chased by anyone. In our view the conduct of these two witnesses also was quite unnatural at the time of the incident which renders their presence at the spot at the time of the alleged incident doubtful.
15. In respect of the evidence of PW-8 Siri Prakash, learned prosecutor had submitted that evidence of this witness was corroborated by the prompt lodging of the complaint with the police by him immediately after the incident and, therefore, even if his conduct at the time of the incident in not making an attempt to save the deceased is considered to be unnatural his testimony still deserves to be accepted and has been rightly relied upon by the trial Court. It was also submitted that the prosecution case, in fact, stood established on the basis of his evidence alone and even if the evidence of other three eye-witnesses is not found to be reliable by this Court the conviction of the appellant would still deserve to be sustained. We are, however, of the view that it is also doubtful whether the FIR was lodged by PW-8 immediately Crl. A. No. 7/1993 16 after the incident as claimed by him. This doubt has crept in because of the statement of PW-2 Tara Chand in his cross- examination to the effect that statement of PW-8 Siri Prakash was recorded first of all at the spot. There is another reason also for concluding that the FIR of this case was not registered in the manner and at the time as was prosecution case. As per the prosecution case, FIR of this case was recorded at 3.30 a.m. on 18.7.87 and thereafter investigation was entrusted to PW-12 Prem Singh. PW-12 has claimed that he had gone to the spot after getting a copy of the FIR and at the spot he had conducted inquest proceedings. However, his inquest report Ex. PW-12/C does not have the number of the FIR. The absence of the FIR number in the inquest report not only shows that the FIR was not registered at 3.30 a.m. but it also shows that PW- 8 Siri Prakash had not gone to the police station to lodge the complaint, as claimed by him. Here, we may once again make a reference to the decision of the Apex Court in Meharaj Singh (supra) wherein also the absence of FIR number. in the inquest report when the copy of the FIR was already with the investigating officer was considered to be a circumstance showing that the FIR had not Crl. A. No. 7/1993 17 been registered by the time the inquest proceedings were conducted at the spot although the prosecution case was that the investigating officer had left the police station for the place of occurrence after the registration of FIR. In that case even the name of the accused was not mentioned by the investigating officer in the inquest report even though the complainant had named him in his first information report and for that reason also it was held by the Hon‟ble Supreme Court that actually the FIR had not been recorded at the time inquest proceedings were conducted but subsequent thereto it was recorded after due deliberations and was then ante-timed to give it a color of a promptly lodged FIR and also that the ante-timing of the FIR was made to introduce eye-witnesses. In the present case also the name of the appellant-accused does not find mention in the inquest report Ex. PW-12/C as the killer of the deceased and that also renders the entire prosecution case against the appellant in general and the claim of PWs 2,8,9 and 10 of their being eye- witnesses in particular doubtful.
16. We are, therefore, of the view that all these infirmities in Crl. A. No. 7/1993 18 the prosecution case are sufficient to render the entire prosecution case doubtful and benefit thereof should be given to the appellant-accused.
17. As far as the evidence of the two defence witnesses is concerned, in our view, the same was not dealt with by the learned trial Judge in proper perspective. Both the defence witnesses were the neighbours of the accused as well as the deceased. They claimed to have reached the spot where the dead body of the deceased was lying on hearing some noise. They had deposed that when they reached the spot they came to know from Tara Chand and the wife of the deceased that the deceased Faqira had died after he had fallen down. As per DW-2 Leela Ram he was told by Tara Chand and the widow of the deceased that Faqira had died due to fall from the stairs. These two defence witnesses had also deposed that after they had reached the place where dead body of the deceased was lying accused Giani Ram had also come there and at that time there was exchange of hot words between Giani Ram and Tara Chand. As per DW-2 Tara Chand and his mother (PW-9, Mishri) had asked Giani Ram as to Crl. A. No. 7/1993 19 why he had come there. The statements of these two defence witnesses to the effect that accused Giani Ram had come to the spot after their reaching the spot remained unchallenged in their cross-examination by the prosecutor and, therefore, stood admitted as correct. The learned trial Court, however, did not attach any importance to the evidence of the two defence witnesses and rejected the same on the ground that their evidence was hearsay regarding the cause of death of the deceased since they themselves did not claim to have seen the deceased falling from the stairs and dying as a result thereof. The learned trial Judge did not take into consideration the other part of their statements to the effect that the accused Giani Ram had reached the spot after they had reached there. In our view, the appreciation of evidence of defence witnesses which had also to be as is required to be done in the case of prosecution witnesses, was not properly done. The evidence of defence witnesses also in a criminal trial is entitled to equal treatment as that of the prosecution witnesses. In the present case, however, the evidence of the defence witnesses has been dealt with and rejected in a casual manner. In our view, the unchallenged statements of both Crl. A. No. 7/1993 20 the defence witnesses to the effect that they had been told by the widow and the son of the deceased how he had died and that the accused had come to the spot after their arrival also rendered the prosecution case doubtful which, in any case, even otherwise has been found to be doubtful.
18. Having found the prosecution allegations against the accused to be highly doubtful we need not examine the alternative submission which had also been put forth by the learned counsel for the appellant-accused that even if the incident is accepted to have taken place in the manner as deposed to by PWs 2, 8,9 and 10 the offence committed by the appellant- accused would still not be an offence of murder and at the most he could be convicted under section 323 IPC.
19. We are, therefore, of the view that this appeal deserves to be allowed. Accordingly, it is allowed and the judgment dated 14th January, 1993 passed by the learned Additional Session Judge, Delhi holding the appellant-accused guilty of the offence of murder of Faqira and the order dated 15th January, 1993 Crl. A. No. 7/1993 21 whereby he was awarded life imprisonment are set aside and the appellant-accused stands acquitted.
During the pendency of the appeal, the sentence of life imprisonment awarded to the appellant-accused was suspended and now that he stands acquitted the bail bond furnished by him stands cancelled and his surety also stands discharged.
(P.K.BHASIN) JUDGE (VIKRAMAJIT SEN) JUDGE July 18, 2008 sh Crl. A. No. 7/1993 22