Delhi District Court
Fir No. 294/2012 5 State vs . Bansi Lal & Ors. 1 Of 58 on 21 October, 2021
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS JUDGE-02(NE), KARKARDOOMA COURTS, DELHI CNR No. DLNE01-000012-2012 SC No. 44245/2015 (Old SC No. 36/15) FIR No. 294/2012 PS : Nand Nagri U/s 307/324/34 IPC State Versus 1. Bansi Lal S/o Sh. Satya Narayan R/o B-6/44, Nand Nagri, Delhi. 2. Chokhe Lal @ Guddu S/o Sh. Balbir Saran R/o H.No. B-6/42, Nand Nagri, Delhi. 3. Ghanshyam @ Rahul S/o Sh. Late Kailash Chand R/o H.No. 6/55, Nand Nagri, Delhi. Date of Institution / Committal : 17.01.2013 Date of Arguments : 23.09.2021 Date of Pronouncement : 21.10.2021 FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 1 of 58 JUDGMENT:
1. Prosecution case: It is the case of the prosecution that on 25.08.2012, a DD No.44-A was received by PS Nand Nagri regarding an incident of stabbing to one boy who was lying near transformer, which was marked to ASI Rajender who visited the spot of incident with Ct. Harish Kumar, but it was revealed that injured had already been removed to GTB Hospital by a PCR van. ASI Rajender along with Ct. Harish Kumar visited GTB Hospital and collected the MLCs of injured Pawan and Rohit, but patients were fit and under observation. The statement of witness / injured Pawan could not be recorded being under treatment, however statement of another injured Rohit was recorded. Rohit made a statement that he along with Pawan went to meet his friend namely Bhola at Nand Nagri where an altercation had taken place between them and Rahul, but matter was sorted out and they returned back. However, at about 9:15 pm, they again went to the house of aunt of Pawan, but accused Rahul, Bansi and two others met them near roundabout and started abusing and beating them. They tried to escape from there but Rahul, Bansi and their friends caught both of them and Rahul and Bansi started stabbing Pawan by some pointed weapon. Pawan sustained injuries and became unconscious and thereafter, other associates of above named accused also beat him and caused him head injuries. Complainant escaped from the spot and accused persons also fled away. Someone informed PCR which removed them to GTB Hospital. A rukka was prepared on the basis of the abovesaid statement and FIR u/s 307/324/34 IPC was registered. After registration of FIR, investigation was FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 2 of 58 assigned to SI Dharmender Singh Negi. IO inspected the spot of incident at the instance of Rohit. On 04/09/2012, statement of Injured Pawan was recorded and his clothes were also seized. IO arrested all the accused and also seized danda and knife at their instance. Doctor opined the nature of injuries sustained by the injured Pawan as dangerous. One of the accused found juvenile and charge sheeted before JJB, whereas other accused persons have been charge-sheeted u/s 323/307/34 IPC and also under sections 25/27 of Arms Act.
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
3. The charges u/s 307/324/34 IPC were framed against accused Chokhe Lal @ Guddu and Ghanshyam @ Rahul, whereas charges u/s 307/324/34 IPC r/w section 25/27 of Arms Act were framed against accused Bansi Lal vide order dated 17.01.2013. All the accused pleaded not guilty and claimed trial.
4. To prove the charges, prosecution has examined PW1 Pawan, PW2 H.C. Rishi Pal, PW3 HC Bala Sahib, PW4 ASI Lakhan Oraon, PW5 Ct. Kapil, PW6 Ct. Jag Om, PW7 Retd. ASI Rajender Singh, PW8 Ct. Mahesh Yadav, PW9 Dr. P.K. Phukan, PW10 SI Dharmender Kumar, PW11 Dr. Sanjay Gupta, PW12 Naresh Kumar from FSL, PW13 Dr. Devender and PW14 Ct. Harish Panwar and closed PE.
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 3 of 58
5. After PE, entire incriminating evidence explained to all accused under Section 313 Cr.P.C and their statements were recorded. Accused have not led any defense evidence and closed DE.
6. To prove the case, prosecution has examined many witnesses including injured Pawan. The evidence led by the prosecution is as under: -
6.1. PW1 Pawan has deposed that on 25.08.2012, at about 8:00 pm, he along with his friend Rohit went to the house of his friend Bhola at Nand Nagri to collect some music instruments where a quarrel had taken place between the sister of Bhola and his landlord. It is further deposed that Bhola narrated the incident of quarrel to them in the presence of accused Rahul, who was supporting the landlord due to hot talks exchanged between Rahul and Rohit and Rohit slapped Rahul, but Bhola intervened and pacified both of them and they returned back to their homes. He has pointed out Ghanshyam @ Rahul to be accused Rahul. He has further deposed that at about 9:00 pm, he again received phone call of Bhola who asked him to come again to his home with Rohit and tender an apology to Rahul, due to he along with Rohit again went to the house of Bhola at about 9:16 pm, where accused Guddu, Bansi and juvenile A were also present. Accused Guddu asked Rohit as to why he slapped Rahul and started abusing, whereas accused Rahul picked a danda lying there and started hitting on the head of Rohit. He along with Rohit started running away to save himself and Rohit succeed in escaping, but accused Bansi and Rahul caught him hold and started beating by kick and fist blows. Meanwhile, accused Guddu and juvenile A also joined them in assaulting and in the meanwhile, accused FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 4 of 58 Bansi took out a knife and started giving knife blows on his back and caused at least 7 blows to him. He became unconscious and regain his conscious only in GTB Hospital. It is further deposed that accused Bansi Lal was inimical to him and stabbed because he used to keep bad eyes on his cousin Neha and he used to object to it. Police seized his white vest worn at the time of this incident. He has identified danda used by accused Ghanshyam @ Rahul as Ex.P1. He has further identified knife used by accused Bansi Lal to cause him injuries, whereas T-shirt worn by Rohit at the time of incident as Ex.P2. It is further deposed that he remained admitted in hospital for treatment of his injuries suffered during this incident for about 15-20 days and even one of his kidneys had to be removed. It is further deposed that tip of his right-hand ring finger was also cut by accused Bansi Lal during this incident. He has proved his discharge summery of hospital as Mark-X. 6.1.1. During the cross examination, he has deposed that the police recorded his statement after about 6/7 days of this incident and even he was unconscious when was brought to hospital, however it is denied that as per his MLC, he was conscious and orientated when was brought to hospital, but did not disclose the names of the assailants to doctor who prepared MLC. He has not disputed that his statement was recorded by the police on 04/09/2012. It is further deposed that he disclosed to police about the quarrel in his statement between the sister of Bhola and his landlord, but it is denied that a quarrel had taken place between Neelu and her landlord. He was confronted with his past statement Ex.PW1/DA where it was not found FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 5 of 58 recorded that Rahul hit on the head of Rohit by a danda or that he was stabbed seven times. It is further deposed that he was wearing a white vest at the time of this incident but he was not aware as to whether it was seized by the police or not, however he did not have that vest with him. Knife Ex.
PX was not recovered in his presence and even he was not aware as to whether his blood sample was collected or not to compare with the blood stains found on the articles. It is admitted that married sister of Bhola had been residing in the house of one Bhagat Ji, whose son Gaurav teased the niece of Bhola namely Payal and matter was also reported to the police, but it was settled, however it is denied that he along with Bhola, Rohit 3-4 other boys was present outside PS or that those 3-4 boys were called by Bhola or that Bhola slapped Gaurav. It is further denied that he along with other persons reached the spot tried to trespass into the house of Bhagat Ji or that public persons gathered at the spot and someone out of public persons inflicted stab injuries to him being considered as dacoit. He was not aware as to how many criminal cases have been lodged against Rohit, but it is denied that accused Bansi Lal and Ghanshyam @ Rahul were not present at the spot during this incident or that accused Ghanshyam was not known as Rahul. It is further deposed that Rohit has left his last known address, but he remained unconscious for 10 days, however he made his statement before the police after 7-8 days of the incident. It is denied that he did not make his statement immediately just to concoct a false story or that police joined 20- 25 locality persons into investigation but they did not support the version of the police due to police recorded his statement after 10 days of incident. He has admitted that danda was not recovered in his presence, but it is denied FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 6 of 58 that knife has been planted upon the accused Bansi Lal.
6.1.1.1. PW1 has further deposed that he did not involve in any criminal case and even did not know accused Chokhey Lal or his address, but Chokhey Lal runs a Chowmein Cart near school, however he did not have any personal grudge or enmity with him. It is further admitted that he did not know Chokhey Lal prior to this incident and even also did not see him in the house of accused Bansi Lal. It is further admitted that he has described accused Chokhey Lal as Guddu Chowmein Wala in his statement but did not give any other description of accused in statement. It is further admitted that his MLC has also not explained as to which injury was caused by danda or fist blow, but danda blow was caused on his leg. It is denied that he saw the accused Chokhey Lal first time in the court or that accused Chokhey Lal was not known as Guddu Chowmein Wala. He has voluntarily deposed that he himself had purchased Chowmein from accused many times and even house of accused was just about 20 steps away from the spot of incident and he reached there during the assault, but it is denied that accused was not present at the spot or that he had gone to the house of his sister at Katra Kalu Ram, Delhi.
6.2. PW2 HC Rishi Pal was posted as DO with PS Nand Nagri on the intervening night of 25/26. 08.2012 between 12:00 midnight to 8:00 am. At about 12:45 am, he recorded FIR Ex.PW2/A on the basis of rukka sent by ASI Rajender Singh through Ct. Harish. He made his endorsement on rukka Ex.PW2/B and assigned investigation to SI Dharmender and got delivered FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 7 of 58 FIR and rukka to him through Ct. Harish. He has also proved DD entry No. 44A as Ex.PW2/C recorded on 25/08/2012 at about 9:40 pm on the basis of information received from wireless operator regarding stabbing of a boy at B-6-Block, Main Chowk near transformer.
6.3. PW3 HC Bala Saheb joined investigation on 07/09/2012 with SI Dharamender and Ct. Jag Om and witnessed the arrest of accused Ghanshyam @ Rahul from a park near Bus Stand 212, Nand Nagri on the basis of secret information vide arrest papers Ex.PW3/A and Ex.PW3/B. Accused made his disclosure statement Ex.PW3/C and got recovered a danda used during the incident from the roof of his house which was seized vide seizure memo Ex.PW3/E, which is Ex. P1. He also pointed out the spot of incident and got prepared pointing out memo Ex.PW3/D. He again joined investigation on 09/09/2012 and witnessed the arrest of accused Chokhey Lal @ Guddu from his home on the basis of secret information vide arrest and personal search memo Ex.PW3/F and Ex.PW3/G. He also made his disclosure statement but weapon of offence could not be recovered, however he pointed out the spot of incident and got prepared pointing out memo Ex.PW3/H. He has admitted that IO did not ask any public person to join investigation or recovery proceedings qua accused Ghanshyam @ Rahul. It is further admitted that IO did not put any specific unique mark on danda and similar danda, as recovered at the instance of accused Ghanshyam @ Rahul, is easily available in the market.
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 8 of 58 6.4. PW4 ASI Lakhan Oraon was posed on PCR van as In-charge on 25/08/2012. At about 9:30 pm, he received an information from PCR control room regarding stabbing of a boy at B-6 Block, Main Chowk, Nand Nagri, Delhi. He visited the spot and found injured Pawan and removed him to GTB Hospital. However, no one disclosed about the assailants whereas 50-60 persons were present at the spot. Injured was conscious and was speaking when he was removed to hospital, but he did not disclose the name of assailants. Injured was admitted in hospital in speaking and conscious condition and also disclosed his name to doctor who prepared MLC, but MLC was not prepared in his presence. He informed PCR Control Room about the medical condition of injured that injured was conscious and speaking.
6.5. PW5 Ct. Kapil deposited the sealed exhibits with FSL on 20/11/2012 after collecting from MHC(M) and handed over the AD Mark X-2 back to MHC(M).
6.6. PW6 Ct. Jag Om joined investigation on 07/09/2012 with SI Dharamender and Ct. Bala Saheb and witnessed the arrest of accused Ghanshyam @ Rahul on the basis of secret information vide arrest papers Ex.PW3/A and Ex.PW3/B. Accused made his disclosure statement Ex.PW3/C in his presence and also got recovered a danda used during the incident which was seized vide seizure memo Ex.PW3/E, which is Ex.P1. He also witnessed the pointing out memo prepared at the instance of accused which is Ex.PW3/D. Again on 09/09/2012, he witnessed the arrest FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 9 of 58 of accused Chokhey Lal @ Guddu on the basis of secret information who was arrested vide arrest and personal search memo Ex.PW3/F and Ex.PW3/G. He also witnessed the disclosure statement of accused as well as pointing out memo Ex.PW3/H prepared at his instance. On 11/09/2012, he again witnessed the apprehend-proceedings of JCL A. On 29/10/2012, he witnessed the arrest proceedings of accused Bansi Lal vide arrest and personal search memo Ex.PW6/A and Ex.PW6/B. Accused made his disclosure statement Ex.PW6/C and led the police to his house and got recovered a knife from the taand of his house which was seized vide seizure memo Ex.PW6/E after preparation of its sketch Ex.PW6/D. Accused also got prepared the pointing out memo of the spot of incident which is Ex.PW6/F. He has identified danda as Ex.P1 and knife as Ex.PX.
6.6.1. During cross examination, he has deposed that he did not know as to whether IO asked anyone to join arrest and recovery proceedings of accused, but danda recovered at the instance of accused was solid bamboo stick which is usually used in household activities. The documents dated 07/09/2012 were prepared at the spot itself, whereas documents pertaining to the arrest of accused Bansi Lal were prepared at PS, but accused was not asked to sign those documents, however his father was present at PS at that time. It is further deposed that no family member of accused Bansi Lal was present when knife was recovered from his house, but he did not remember whether house was locked or opened at that time, however they reached there at about 6:30 pm. The taand wherefrom the knife was recovered was situated just above the entry gate of the room. The secret information FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 10 of 58 regarding accused Rahul was received during patrolling by IO at about 10:30 pm and they reached within 5-6 minutes to the spot to recover danda at his instance from the spot which was about 200 meters away from the spot of his arrest. It is admitted that accused Chokhey Lal used to carry a Chowmein selling cart business from a place nearby to school.
6.7. PW7 ASI Rajender Singh was assigned DD entry No. 44A on the intervening night of 25/26 August,2012, which is Ex.PW2/C. He alongwith Ct. Harish visited the spot of incident where injured was lying. He witnessed huge blood at the spot, but injured had already been removed to GTB Hospital. He deputed Ct. Harish to protect the spot and himself went to hospital and collected the MLCs of injured. Both the injured were fit to make statement but he recorded the statement of Rohit in verbatim which is Ex.PW7/A and read over it to him. Duty constable handed over the sealed pullinda containing clothes / vest of the injured Pawan which was seized vide seizure memo Ex.PW7/B and thereafter returned back to the spot. He prepared rukka on the basis of statement of injured Rohit which is Ex.PW7/C and handed it over to Ct. Harish to get registered FIR and he handed over the copy of FIR and rukka to him at the spot, but investigation was assigned to SI Dhramender. It is denied that injured Rohit and Pawan along-with their associates entered into the house of Bhagat Ji @ Roop Kishore or that public persons gathered there and gave beating to Pawan and Rohit and caused them injuries. It is admitted that Rohit did not disclose the description of the persons accompanied with Rahul and Bansi Lal.
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 11 of 58 6.8. PW8 Ct. Mahesh Yadav was posted as duty constable in GTB Hospital and was handed over the sealed parcel containing the clothes of injured Pawan by the doctor. He handed over the sealed parcel to ASI Rajender Singh.
6.9. PW9 Dr. P.K. Phukan has proved the MLC of injured Pawan as Ex.PW9/A. He has deposed that the injured was brought to GTB Hospital by PCR van officials and patient was conscious and oriented and was advised to undergo X-rays of chest, abdomen, elbow area, spine and right hand. Senior SR was called for treatment. Injured suffered injuries on his chest and abdomen and such injuries could be potentially serious. Vest of the patient was seized and handed over to duty constable. The discharge summery of injured Pawan is Mark X. It is admitted that this MLC was not prepared in his presence and even he was not aware about the result on MLC and did not meet patient personally.
6.10. PW10 SI Dharmender Kumar was assigned the investigation of this case after lodging of FIR. He visited the spot of incident and inspected the spot and thereafter visited GTB Hospital and made enquiry from injured Rohit and seized blood smeared T-Shirt of injured Rohit vide seizure memo Ex.PW10/A. The other injured was not in position to speak being under treatment. He along with injured Rohit visited the spot of incident and prepared the site plan Ex.PW10/B. He also seized the blood earth control and blood stains from the spot vide seizure memo Ex.PW10/C. One pair of slippers was also seized from the spot vide seizure memo Ex.PW10/D. On FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 12 of 58 04/09/2012, he visited the hospital and met injured Pawan and recorded his statement. On 07/09/2012, he arrested accused Ghanshyam @ Rahul on the basis of secret information and also recovered weapon of offence/ danda at his instance from his house and thereafter, he arrested accused Chokey Lal @ Guddu, but weapon of offence/ danda could not be recovered being thrown at the spot of incident itself. JCL A was also arrested. He has identified the danda recovered at the instance of Ghanshyam @ Rahul as Ex. P1, knife recovered at the instance of Bansi Lal as Ex. PX, T-shirt of injured Rohit as Ex. P2, pair of slippers as Ex. P3. On 29/10/2012, accused Bansi Lal came to PS with his father and surrendered and was arrested vide separate arrest memos and also got recovered a knife used during the crime. He collected the FSL reports Ex.PW10/E and Ex.PW10/F. 6.10.1. During cross examination, he has deposed that he visited the spot of incident in late hours, due to no-one met him there, but he did not call any resident of locality to join investigation. He did not remember as to whether complainant Rohit mentioned the physical description of accused Chokey Lal in his statement, but Rohit did not disclose the names and addresses of other two accused. He did not call the crime team to the spot. He did not obtain the opinion of doctor on the MLC regarding the fitness of injured when recorded the statement of injured Pawan on 04/09/2012. Many persons were present at the time of arrest of accused Chokey Lal but he was not aware as to whether any relative or family member of accused was also there, however he made inquiry from the family members of accused Chokey Lal about his nick name as Guddu. He did not obtain the FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 13 of 58 signature of anyone on the arrest papers of accused. The spot of incident was within his knowledge prior to the arrest of accused Chokey Lal. It is further admitted that accused Chokhey Lal used to cook Chowmein at B- Block, Nand Nagri, but he did not make any inquiry about the involvement of the accused in this case. It is further deposed that he did not prepare site plan of the place where the weapon of offence was thrown by accused Chokhey Lal. The physical description of accused was not disclosed by Pawan in his statement. It is admitted that he did not collect and sent the blood samples of both injured to FSL for comparison with exhibits. It is denied that accused Ghanshyam was not known as Rahul or that he has been falsely implicated to this case by his nick name.
6.11. PW11 Dr. Sanjay Gupta has proved the nature of injury on the MLC of injured Pawan Ex.PW9/A as dangerous. He has not produced the surgical record of the injured on which basis this opinion was furnished.
6.12. PW12 Naresh Kumar from FSL has proved the FSL reports Ex.PW10/E and Ex.PW10/F. Blood could be detected on T-Shirt being lapsed many years and similarly blood group on stick and knife was also not detected. He could not say as to whether blood stains on the T-shirt, bamboo stick and knife belong to the same persons or different as the grouping could not be ascertained on all exhibits.
6.13. PW13 Dr. Devender has proved the MLC of injured Rohit as Ex.PW13/A, as per which, injured sustained lacerated wound over left parietal aspect measuring 4 x 1 cm.
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 14 of 58 6.14. PW14 Harish Panwar joined the investigation with ASI Rajender and was deputed at the spot of incident to protect the scene of crime when ASI went to hospital. He witnessed the seizures of exhibits by the IO. He did not sign the site plan.
7. I have heard the arguments of both parties and perused the record. This case started with an information received from mobile No. 9268181993 to PCR and recorded vide DD No.44-A dated 25/08/2012 at 9:40 pm that "B-6 main chowk near transformer ek ladke ko kisi ne chaku maar diya hai road par behosh pada hai". This DD entry was assigned to ASI Rajender Singh who along-with Ct. Harish visited GTB Hospital and collected the MLCs of both injured and recorded statement of one of the injured namely Rohit, whereas other witness Pawan was under treatment. Rohit disclosed that he along-with his friend Pawan went to meet Bhola at Nand Nagri, where an altercation had taken place with Rahul, but matter was sorted out and they returned back. However, at about 9:15 pm, they again went to the house of aunt of Pawan where Rahul, Bansi and two other persons met them near roundabout and started abusing and beating them. They tried to save themselves, but accused Ghanshyam @ Rahul, Bansi Lal and their associates caught them hold and Rahul and Bansi started stabbing Pawan by some pointed object/weapon. Pawan sustained multiple stab injuries and became unconscious and accused also beat him and caused head injuries. This statement of Rohit made the basis of lodging FIR against accused persons which is Ex.PW2/A. On the basis of this FIR police- initiated investigation.
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 15 of 58
8. The above said allegations ought to be proved by the informant Rohit who had brought the law into motion by lodging this FIR. However, this informant as well as injured has not been examined by the prosecution to prove the contents of FIR and also to prove the incident witnessed by him. Ld. Counsel for the accused has argued that non-examination of this informant of FIR is fatal to this case as the contents of FIR could not be proved. It is further argued that injured Pawan has failed to prove this case as his statement was not recorded by the police promptly soon after this incident and there was a lot of delay in recording his statement which has created a doubt regarding the authenticity of such statement as well as incident, due to accused persons are entitled for benefit of doubt. On the other hand, Ld. APP for the State has argued that the non-examination of informant of FIR is not fatal to this case as another injured namely Pawan has duly proved this incident beyond doubt and his statement cannot be doubted merely because his testimony was recorded with some delay, whereas he was hospitalized during this period and was not in position to make his statement. It is further argued that duly testified testimony of injured/ PW1 cannot be brushed aside just because of non-examination of informant or due to some delay in recording his statement and this objection of the accused is afterthought.
9. After hearing the arguments of both parties, it is necessary to go through the legal proposition regarding non-examination of an informant of FIR. It is also to be seen as to whether such non-examination has caused any miscarriage of justice to accused. This situation has been dealt with by FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 16 of 58 the Hon'ble Supreme Court of India in a case titled Krishna Mochi v. State of Bihar, (2002) 6 SCC 81 and the observation of the court is as under:
35. It has been further submitted that the informant, Satendra Kumar Sharma has not been examined as such, the first information report cannot be used as a substantive piece of evidence inasmuch as on this ground as well the appellants are entitled to an order of acquittal. The submission is totally misconceived. Even if the first information report is not proved, it would not be a ground for acquittal, but the case would depend upon the evidence led by the prosecution.
Therefore, non-examination of the informant cannot in any manner affect the prosecution case.
10. Similar situation further dealt with in another case titled Umesh v. State of Maharashtra, (2007) 15 SCC 393 and has held as under;
19. The next contention of the learned counsel for the appellant that adverse inference should be drawn against the prosecution for non-examination of the informant and other material witness does not merit acceptance. In the teeth of the reliable and convincing evidence, which has come on record, we have no other option but to accept the finding recorded and the conclusion arrived at by the High Court on reappraisal of the entire evidence on record to hold that it was the appellant and none else who has committed the murder of Dilip. The prosecution has been able to establish the offence against the appellant beyond reasonable doubt. None of the contentions raised by the learned counsel on behalf of the appellant can be accepted.
In view of the above said case law, it stands proved that non-examination of an informant of FIR is not always fatal to the case of prosecution, as FIR is only a statement of an informant in terms of Section 162 Cr.P.C. In fact, a FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 17 of 58 testimony of an eye witness cannot be discarded by such non-examination of informant. The court is bound to consider the case of the prosecution with the help of testimonies of other witnesses also and the merit of the case cannot be discarded just by non-examination of an informant of FIR. Even otherwise, non-examination of informant Rohit was not deliberate and was due to non-availability of his last known address. Prosecution made more than sufficient efforts to secure his presence for examination but he could not be served even through DCP concerned and no adverse inference may be drawn against prosecution.
11. Now the testimony of PW1 Pawan has to be seen and considered. Pawan is an injured as well as eye-witness of this case. He was the person / injured whose stabbing information was flashed on PCR control room and was recorded vide DD No. 44A which is Ex. PW2/C. PCR-In-charge / PW4 has proved this fact that he removed the injured to GTB Hospital, whereas PW7 ASI Rajender Singh and PW14 Ct. Harish Chander have corroborated this fact that both the injured were found hospitalized when they visited hospital. PW1 Pawan has proved that on 25.08.2012, at about 8:00 pm, he along with injured Rohit went to the house of his friend Bhola at Nand Nagri to collect some music instruments where a quarrel had taken place between the sister of Bhola and her landlord and during this dispute hot talks exchanged between Rahul and Rohit and Rohit slapped Rahul, but matter was sorted out by the intervention of Bhola. However, at about 9:16 pm, they again went to the house of Bhola as Bhola asked Rohit to tender an apology to Rahul, but accused Guddu, Bansi and JCL-A were present there and Guddu asked Rohit as to why he slapped Rahul and started FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 18 of 58 abusing him, whereas co-accused Rahul picked up a danda lying there and started hitting on the head of Rohit, whereas co-accused Bansi and Rahul caught him hold and started beating by kicks and fist blows. Meanwhile, accused Guddu and JCL-A also joined them in assaulting and accused Rahul started beating by danda. Meanwhile, accused Bansi Lal took out a knife and started stabbing him on his back and other body parts and inflicted at least Seven injuries. He became unconscious after sustaining such injuries and regain his consciousness only in GTB Hospital. He has further proved the cause of such stabbing by accused Bansi Lal, as accused was inimical to him being having bad eyes on his cousin Neha, whereas he used to object to it. He has further proved that he remained hospitalized for treatment of his injuries suffered during this incident for about 15-20 days and one of his kidneys also had to be removed. Even tip of his right-hand ring finger also cut by accused Bansi Lal during this incident. He has proved his hospital discharge summery as Mark-X. All the accused have cross examined PW1 in length, but there is no material contradiction in his testimony and he has firmly stood by his testimony. As such, testimony of PW1 Pawan has duly proved the incident in the similar manner as projected by the informant in FIR.
12. Not only PW1 has proved this incident by his oral evidence but medical evidence also has supported this testimony. Admittedly, he was found lying with stab injuries at B-6-Block, Nand Nagri, Delhi and was removed to GTB Hospital where his MLC Ex.PW9/A was prepared. PW7 ASI Rajender Singh collected this MLC and PW9 Dr. Phukan has proved it.
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 19 of 58 As per MLC, PW1 was removed to hospital with alleged history of assault as stated by him as well as PCR official. He sustained following injuries as under;
1. Incised wound 3 x 1 cm on right side of lower back and 4 x 1 on the left side lower back.
2. Incised wound 3 x 2 cm just above left elbow.
3. Incised wound 1 x 1 cm and 1 x 1 cm on back of left side.
4. Incised wound 1 x 1 cm over left shoulder.
5. Clean lacerated wound 2 x 1 cm on right ring finger with deformity of distal phalanx.
The nature of injury was dangerous. Injuries on the chest and abdomen could be potentially serious. Discharge Summery of injured Mark- X has proved that he suffered multiple stab injuries on his back expanding retroperitoneal hematoma, renal pedicle injury, gastric perforation and pancreatic injuries. As such, kidney was also affected by such injuries and right nephrectomy and repair of gastric perforation process was conducted. This medical opinion has corroborated that the injured sustained all the injuries as proved by PW1.
13. PW1 Pawan has further proved that one of his kidneys had to be removed on account of such injuries caused by the accused persons and even tip of his right-hand ring finger was also cut. The above said injuries sustained by the injured during this incident have proved that PW1 was caused serious and life threating injuries by accused person. The doctor has FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 20 of 58 already opined such injuries as dangerous. PW1 Pawan was the injured of the incident and has special status to rely upon his testimony. His injuries are proof of his presence during the incident and a legal sanctity is attached to his testimony. The Hon'ble Supreme Court has treated the testimony of an injured with special care and caution and law related to such testimony of injured has been laid down in case titled State of UP v. Kishan Chand, (2004) 7 SCC 629 as under: -
...the testimony of a stamped witness has its own relevance and efficacy. This fact that the witness sustained injuries at the time and place of occurrence, lends supports to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross examination and nothing can be elicited to discard his testimony, it should be relied upon...
14. Further, it is held in Abdul Sayeed V. State of Madhya Pradesh & others, (2010) 10 SCC 259 that "weight is to be attached to the evidence of a witness that was himself injured in the course of occurrence and testimony of such witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailants in order to falsely implicate someone. As such convincing evidence is required to discredit an injured witness. Similarly, in (2004) 7 SCC 629, it is reiterated that "the fact that the witness sustained injuries at the time and place of occurrence lends support his testimony that he was present during the occurrence. In case injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon".
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 21 of 58
15. Further, in Bhajan Singh v. State of Haryana, (2011) 7 SCC 421, it is held that;
36. The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.
In view of the above said case law, it stands proved that the testimony of injured witness has special status and inspires confidence, until and unless contradictions in the testimony are of such which renders the entire testimony useless. In this case also, PW1 Pawan is the injured of this incident and has deposed clearly regarding the mode and manner of causing this incident in similar manner as alleged by complainant Rohit, who could not be examined by the prosecution.
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 22 of 58
16. Further, medical evidence led by prosecution has also corroborated the mode and manner of sustaining injuries by the injured/PW1 in the similar manner. The purpose of medical evidence is to corroborate the mode and manner of causing injuries as alleged by the injured. A similar legal proposition has laid down in case titled Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484 that;
"...ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defense can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whosoever of injuries: taking place in the manner alleged by eye witnesses, the testimony of eye witnesses cannot be thrown out on the ground of alleged in consistency between it and the medical evidence. In fact, the medical evidence has to be interpreted in the corroborative manner to the testimony of eye witness and to give the strength to his statement or contradict him..."
As such, the testimony of PW1 is reliable not only from the point of view of his being injured but also of his medical corroborative evidence that he received the injuries in the similar manner as proved by him.
17. However, Ld. Counsel for the accused has assaulted the testimony of PW1 on the ground that police had examined him after a lot of delay deliberately just to strengthen their case and especially when the public persons failed to support them. Admittedly, this incident took place on 25/08/2012, whereas statement of PW1 Pawan u/s 161 Cr.P.C. was recorded FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 23 of 58 on 04/09/2012 i.e. after 9-10 days of this incident. Now it is to be seen as to whether this delay was deliberate or not. Ld. Counsel has argued that the testimony of PCR official as well as MLC of injured has proved that injured was conscious and oriented and even disclosed his name as well as incident to doctor, due to there was no impediment to examine him instantly by the police and this delay of about 10 days was definitely fatal to this case, as injured got 10 days to manipulate and forge the facts. However, this argument has no force. Injured sustained multiple stab injuries during this incident and his MLS as well as discharge summery has also proved this fact. Though DD entry No. 44A has proved that the initial information was pertaining to a person lying at the spot in unconscious state, yet it may not be ruled out that injured might have regained conscious during his shifting to GTB Hospital from the spot to hospital by PCR and might have talked to PCR official, but it does not mean that he was fit enough to make statement to the police. MLC was prepared at about 9:50 pm when injured was fit to make statement, but he was immediately sent for multiple X-rays and was also referred to Surgery and Orthopedics Departments for further management and this fact is very much clear by the MLC itself that his instant statement was not feasible. Further, though discharge summery of the injured Mark X has not been proved by the prosecution, yet it is also not disputed and has proved that injured was hospitalized during the period from 25/08/2012 to 14/09/2012 and was also operated upon including performing of procedure on his kidney and his one kidney was also damaged. In such medical condition, it was definitely difficult to police to record the statement of injured in the hospital soon after incident. The life FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 24 of 58 of injured was precious and was supposed to be saved first which has been done and this delay in recording his statement was/is not fatal, especially when he has deposed all the material facts of this statement before the court during evidence.
18. Further, though police could have been faulted for its laxity, if would not have investigated this case promptly soon after the incident, yet PW7 ASI Rajender Singh instantly recorded the statement of injured Rohit and initiated the investigation and Rohit was also one of the injured and recording of FIR on the basis of his statement could not be faulted. In fact, prosecution was bound to offer an explanation to the delay in recording of the statement of injured Pawan and was to be offered by IO, whereas IO / PW10 has duly offered this explanation by deposing that injured Pawan was admitted in Ward No. 149 of GTB Hospital and was under treatment and was not in position to speak, due to his statement could not be recorded. On the other hand, he has not been cross examined by the accused on this delay and nothing contrary has been suggested to him. He has admitted that he did not obtain medical opinion from doctor on MLC regarding the fitness of injured Pawan on 04/09/2012 when recorded his statement. He was only suggested that he did not record the statement of the injured on 04/09/2012, but nothing such was suggested in what manner this delay in recording statement of injured prejudiced the accused persons. FIR had already been recorded on the basis of statement of injured Rohit thereby alleging the similar facts as deposed by PW1 and this delay of some days in recording the statement of injured Pawan, who was also injured as well as eye witness of the incident, has not prejudiced the accused persons in any manner. The FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 25 of 58 prosecution has furnished a plausible explanation to this delay in recording this statement and there is no reason to discard the testimony of such reliable witness just because his initial statement was not recorded by police promptly.
19. The law relating to delay in recording the statement of witness has been dealt with by the Hon'ble Supreme Court in case titled Mohd. Khalid v. State of W.B., (2002) 7 SCC 334 and the observation of the court is material to be considered as under: -
"...mere delay in examination of the witnesses for a few days cannot in all cases be termed to be fatal so far as the prosecution is concerned. There may be several reasons. When the delay is explained, whatever be the length of the delay, the court can act on the testimony of the witness if it is found to be cogent and credible..."
20. It is further held in Vijay Kumar Arora v. State (NCT of Delhi), (2010) 2 SCC 353 that;
55. On reappraisal of the evidence, this Court finds that it is true that the police statements of the abovenamed three witnesses were recorded after one month from the date of the death of the deceased. However, neither an explanation was sought from any of the witnesses as to why their police statements were recorded after a delay of one month nor the investigating officer was questioned about the delay in recording statements of those witnesses. The law on the point is well settled. Unless the investigating officer is asked questions about delay in recording statements and an explanation is sought from the witnesses as to why their statements were recorded late, the statements by themselves did not become suspicious or concocted.
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 26 of 58
21. Further, in case titled Narinder Kumar v. State of J&K, (2010) 9 SCC 259 it is held that;
23. It was also contended by Mr Gupta that statements of some of the eyewitnesses were recorded belatedly. This aspect too has to be seen in the background of the facts and circumstances of the case. Whether or not delay has affected the credibility of the prosecution is a matter on which no straitjacket formula can be evolved nor any thumb rule prescribed for universal application. The courts below have, in our opinion, correctly appreciated this aspect and rejected the contention that the delay in the recording of the statements of some of the witnesses was fatal to the case. That is specially so when the prosecution version, based on the statement made by Balwant Raj was known on the date of the incident itself. PW Balwant Raj had in the said statement attributed the gunshot injury sustained by the deceased to the appellant. Delay in the recording of the statements of the other eyewitnesses, two of whom were brothers of the deceased was not, therefore, used to falsely implicate the appellant.
22. Further, in case titled John Pandian v. State, (2010) 14 SCC 129, it is held that;
44. Other criticism levelled against these witnesses was that the statements of Selvaraj (PW 14) and Paramasivam (PW 15) were not recorded immediately. While the statement of Selvaraj (PW
14) was recorded on 20-8-1993, Paramasivam (PW 15) became available for the statement after about 15 days. It is true that the criminal courts would expect the statements of the eyewitnesses to be recorded immediately or with least possible delay. The early recording of the statement gives credibility to the evidence of such witnesses. But then it is not an absolute rule of appreciation that where the statement is recorded late, the witness is a false witness or a trumped-up witness. That will depend upon the quality of the evidence of the witness.
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 27 of 58 In view of the above said law, it stands proved that the oral evidence of PW1 duly corroborated by medical evidence has proved this incident as well as involvement of accused persons beyond doubt. Even the delay of some days in recording of the statement of PW1 has also been duly explained by IO, whereas accused persons have failed to prove any prejudice by this delay. In fact, PW1 was seriously injured and his treatment was first priority and there was no such inordinate delay in recording his statement and is not fatal to this case.
23. Ld. Counsel for the accused has further argued that PW1 is the sole witness examined by the prosecution to prove the incident, whereas another injured Rohit has not been examined due to testimony of PW1 could not be corroborated. It is further submitted that accused persons have been charged under section 307 IPC and delay in the recording testimony of PW1 u/s 161 Cr.P.C. made his testimony not "wholly reliable" due to it requires corroboration and in the absence of corroboration by Rohit who lodged FIR, it is highly objectionable to convict the accused persons on the basis of uncorroborated testimony and accused persons should be granted benefit of doubt. On the other hand, Ld. APP for the State has opposed all these submissions thereby arguing that there is no requirement of law to examine multiple witnesses to prove a fact and only one witness is sufficient to prove a particular fact, provided his testimony must be reliable. It is further argued that Rohit could not be examined due to his non-availability being left his last known address and his non-examination was not deliberate due to no adverse inference could be drawn against prosecution, especially when FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 28 of 58 testimony of PW1 is found reliable and required no corroboration, due to it is safe to rely upon the testimony of PW1 to convict accused persons and all the accused are liable to be convicted.
24. Before dealing with the argument of the Ld. Counsel for accused, it is necessary to go through legal proposition regarding requirement of corroboration to prove a fact by a witness. Section 134 of Evidence Act has laid down that "No particular number of witnesses shall in any case be required for the proof of any fact" and examination of one witness is sufficient to prove a fact, provided his testimony must be reliable. The law to this effect has been summarised by the Hon'ble Supreme Court of India in case titled Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91 as under:
31.In Sunil Kumar v. State (Govt. of NCT of Delhi) [(2003) 11 SCC 367 : 2004 SCC (Cri) 1055] this Court repelled a similar submission observing that: (SCC p. 371, para 9) "9. ... as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable.
There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But, if there are doubts about the testimony the courts will insist on corroboration."
In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 29 of 58
32. In Namdeo v. State of Maharashtra [(2007) 14 SCC 150 :
(2009) 1 SCC (Cri) 773] this Court reiterated the similar view observing that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction.
Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.
25. Further, in another case titled Mano Dutt v. State of U.P., (2012) 4 SCC 79, it is held that;
33. The court can convict an accused on the statement of a sole witness, even if he was a relative of the deceased and thus, an interested party. The condition precedent to such an order is that the statement of such witness should satisfy the legal parameters stated by this Court in a catena of judgments. Once those parameters are satisfied and the statement of the witness is trustworthy, cogent and corroborated by other evidence produced by the prosecution, oral or documentary, then the court would not fall in error of law in relying upon the statement of such witness. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure its defect. Reference in this regard can be made to the judgment of this Court, in Anil Phukan v. State of Assam [(1993) 3 SCC 282 : 1993 SCC (Cri) 810] .
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 30 of 58
26. Further, in Juman v. State of Bihar, (2017) 11 SCC 85, it is observed as under-
We have seen in the instant case that the witnesses have vividly deposed about the genesis of the occurrence, the participation and involvement of the accused persons in the crime. The non- examination of the witnesses, who might have been there on the way to hospital or the hospital itself when deceased narrated the incident, would not make the prosecution case unacceptable. Similarly, evidence of any witness cannot be rejected merely on the ground that interested witnesses admittedly had enmity with the persons implicated in the case. The purpose of recording of the evidence, in any case, shall always be to unearth the truth of the case. Conviction can even be based on the testimony of a sole eyewitness, if the same inspires confidence. Moreover, prosecution case has been proved by the testimony of the eyewitness, since corroborated by the other witnesses of the occurrence. We are constrained to reject the submissions made on behalf of the appellants.
27. This legal proposition is again dealt with in case titled Khurshid Ahmed v. State of J&K, (2018) 7 SCC 429 and observation of the court is as under: -
32. If the evidence of an eyewitness, though a close relative of the victim, inspires confidence, it must be relied upon without seeking corroboration with minute material particulars. It is no doubt true that the courts must be cautious while considering the evidence of interested witnesses. In his evidence, the description of the incident by PW 9 clearly portrays the way in which the accused attacked the deceased causing fatal head injury as propounded by the prosecution. The testimony of the father of the deceased (PW 9) must be appreciated in the background of the entire case.
35. When analysing the evidence available on record, the court should not adopt hypertechnical approach but should look at the broader probabilities of the case. Basing on the minor FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 31 of 58 contradictions, the court should not reject the evidence in its entirety. Sometimes, even in the evidence of truthful witness, there may appear certain contradictions basing on their capacity to remember and reproduce the minute details.
Particularly in the criminal cases, from the date of incident till the day they give evidence in the court, there may be gap of years. Hence, the courts have to take all these aspects into consideration and weigh the evidence. The discrepancies and contradictions which do not go to the root of the matter, credence shall not be given to them. In any event, the paramount consideration of the court must be to do substantial justice. We feel that the trial court has adopted a hypertechnical approach which resulted in the acquittal of the accused.
28. In view of the above said law, it stands proved that there is no requirement of law to insist upon to seek corroboration of testimony of PW1 despite the fact that the testimony of PW1 has survived despite lengthy cross examination by accused persons and needs no corroboration. So far as non-examination of a material witness / Rohit to draw an adverse inference is concerned, Section 114 (g) has laid down that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it, but such non-examination must be deliberate. However, in this case prosecution attempted to secure the presence of Rohit by repeated summoning, whereas his presence could not be secured being left his last known address and was not deliberate attempt on the part of prosecution to save itself from non-examination of Rohit to draw an adverse inference. In fact, no adverse inference may be drawn against prosecution just by non-examination of Rohit and testimony of PW1 is reliable to prove FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 32 of 58 this incident without corroboration him as well.
29. Further, to rely upon the testimony of PW1 it must pass a test of reliability as laid down by the Hon'ble Apex Court in Vadivelu Thevar v. State of Madras AIR 1957 SC 614 as under:
Wholly reliable.
Wholly unreliable. and Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way, it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. As such, the testimony of PW1 Pawan is of first category i.e. "wholly reliable" due to it will be safe to rely upon his testimony to prove the facts of this case and has categorically proved that he was caused dangerous stab injuries by accused Bansi Lal and other both accused also supported him. As such, it stands proved that PW1 has proved this incident beyond doubt.
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 33 of 58
30. Arrest and recovery of weapon of offence: All the accused perons were arrested by police and this fact has already been proved by PW3, PW6 and PW10 vide arrest documents Ex.PW3/A to Ex.PW3/C, Ex.PW3/F to Ex.PW3/H and Ex.PW6/A to Ex.PW6/C. One danda was recovered at the instance of accused Ghanshyam @ Rahul vide seizure memo Ex.PW3/E, whereas one knife was recovered at the instance of accused Bansi Lal vide seizure memo Ex.PW6/E, in pursuance of their disclosure statements Ex.PW3/C and Ex.PW6/C. The sketch of knife Ex.PW6/D was also prepared before seizure of knife. PW6 Ct Jag Om and IO/PW10 SI Dharmender Kumar have proved this recovery of weapons. All the witnesses to arrest as well as recovery of weapons have been duly cross examined and nothing adverse has come on record to dispute the arrest of accused persons and also recovery of weapon of offence.
31. However, Ld. Counsel for the accused has argued that this recovery of weapons could not be proved beyond doubt, as mode and manner of such recovery of weapon was doubtful. It is further argued that the recovery has been shown to be made from the house of both accused whereas it is very improbable that both accused would conceal the weapons in their houses after committing the offence despite knowing that police were in search of them and weapons were bound to be recovered. It is further argued that neither family members nor public persons joined into recovery proceedings due to such recovery was/is definitely doubtful. On the other hand, Ld. APP for the State has opposed these submissions thereby arguing that the recovery of weapon of offence could be doubted because no public FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 34 of 58 person or family members was joined into recovery proceedings as there is no such rule of law that the police officials are not competent witnesses or the recovery in their presence is always not reliable and this recovery stands proved.
32. Admittedly, recovery of weapon i.e. Ex. P1 and Ex. PX has been duly proved by the police officials but being doubted merely on the ground of non-joining of public witnesses, whereas this recovery is duly admissible u/s 27 of the Evidence Act. Before considering the mode and manner of recovery of offence, it is necessary to go through the law regarding the recovery or discovery of a new fact in pursuance of a disclosure statement of accused u/s 25 of Evidence Act and is admissible u/s 27 of the Evidence Act. In case titled Anter Singh v. State of Rajasthan (2004) 10 SCC 657, the Hon'ble Supreme Court of India has summed up the law u/s 27 of Evidence Act as under:
"16. The various requirements of the section can be summed up as follows:
1. The fact of which evidence is sought to be given must be rele- vant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The rele- vancy of the fact discovered must be established according to prescriptions relating to relevancy of other evidence connect- ing it with the crime in order to make the facts discovered ad- missible.
2. The fact must have been discovered.
3. The discovery must have been in consequence of some infor- mation received from the accused and not by the accused's own act.
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 35 of 58
4. The person giving the information must be accused of any of- fence.
5. He must be in the custody of a police officer.
6. The discovery of a fact in consequence of information re- ceived from an accused in custody must be deposed to.
7. Thereupon only that portion of the information which related distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
33. It is further held in State of Maharashtra v. Damu (2000) 6 SCC 269 that:
"35. The basic idea embedded in section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or no exculpatory in nature, but if it results in discovery of a fact it becomes reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum."
34. In Prakash Chand v. State (Delhi Administration) (1979) 3 SCC 90 wherein the Court, after referring to the decision in Himachal Pradesh Administration v. Om Prakesh (1972) 1 SCC 249 as under:
"There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by section 162 of the Criminal Procedure Code. What is excluded by section 162, Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 36 of 58 evidence, relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a police officer during the course of investigation.
For Example, the evidence of the circumstance, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapon which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act."
35. It has been further held in Mohd. Arif Alias Ashfaq v. State (NCT of Delhi) (2011) 13 SCC 621 that;
"The essence of the proof of a discovery under section 27 of the Evidence Act is only that it should be credibly proved that the discovery made was relevant and material discovery which proceeded in pursuance of information supplied by the accused in the custody. How the prosecution proved it, is to be judged by the court but if the court finds the fact of such information having been given by the accused in custody is credible and acceptable even in the absence of the recorded statement in pursuance of that information some material discovery has been effected than the aspect of discovery will not suffer from any vice and can be acted upon." In view of the above said law laid down by the Hon'ble Apex Court, the recovery of the weapons and other articles is very relevant as well as admissible against the accused persons.
36. Further, it is held in case titled Pankaj v. State of Rajasthan, (2016) 16 SCC 192 that:
23. An objection was raised by the learned Senior Counsel for the appellant-accused that recovery of firearm at the instance of the appellant-accused was planted by the police and it could not have been relied upon. This Court, in a number of cases, has FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 37 of 58 held that the evidence of circumstance simpliciter that an accused led a police officer and pointed out the place where weapon was found hidden, would be admissible as conduct under Section 8 of the Evidence Act, irrespective of whether any statement made by him contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act.
37. In view of the above said law, it stands clear that there are few requirements of section 27 of The Evidence Act to make an information admissible under abovesaid section and these are that accused must disclosed some information during police custody and such information must be leading to recovery or discovery of a new fact which must be related to an offence charged. In the present case, knife Ex. PX has been recovered at the instance of accused Bansi Lal from his house and it cannot be disputed merely because it was recovered at his instance from his house only. The disclosure statement Ex.PW6/C would show that accused had not only disclosed the information of the place of this weapon but also the source through which he acquired this weapon. He has categorically deposed that JCL A purchased this weapon from Haridwar in Rs. 250/-
whereas he used to carry this weapon all the time with him and put on the taand of his home after this incident. This information was specific and led to the recovery of weapon of offence due to it was duly admissible. Similarly, the recovery of danda at the instance of co-accused Ghanshyam @ Rahu was also made in pursuance of his disclosure statement Ex.PW3/C in which he disclosed the information of recovery of this danda from his house coupled with the use of danda during the incident against injured Pawan and Rohit. On the other hand, PW1 has also corroborated that FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 38 of 58 accused Rahul picked up a danda from the spot and hit on the head of Rohit and also repeatedly hit him. In fact, PW1 has duly proved the use of both weapons by all accused during the incident and both recoveries are reliable.
38. Though police officials have witnessed these recoveries and no public person has been joined in recovery, yet police officials are also competent witnesses and their testimonies cannot be discarded merely because of their official capacity. Similar legal proposition has laid down in Tahir v. State, 1996 (3) SCC 338 and Anter Singh v. State of Rajasthan 2004(10) SCC 657 that police officials are competent witnesses and there is no such principle they are not competent witness or should be supported by some public witnesses. As such, non-joining of public witnesses during recovery proceedings is not fatal to this case.
39. Even otherwise, now a days it is very difficult to join public persons during investigation and this obstacle being faced by the police officials has been duly recognized by the Hon'ble Supreme Court of India in case titled Appabhai v. State of Gujrat 1988 Supp SCC 241, in which, it is observed that;
"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate; but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 39 of 58 discharge its duties. The court therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in normal manner. Nor do they react uniformly. The horror-stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner".
In fact, the objections of Ld. Counsel for the accused that the weapon of offence were planted upon accused or non-joining of public persons was fatal are not sustainable. If weapon of offence had been planted upon the accused, then they were required to make a complaint against IO and also to tender an explanation under which circumstances such plantation was done by the IO, but accused persons have neither tendered any explanation during their statements under section 313 Cr.P.C. nor led any evidence to point out any previous enmity or biasness which led IO to falsely implicate them. As such, objections of the accused persons could not be proved.
40. Now the use of the recovered weapon has to be seen. Knife was used to inflict injuries to injured Pawan and injuries suffered by him have duly proved that this knife Ex.PX was much capable to inflict such injuries. MLC and discharge summery of injured have also corroborated that such injuries were possible to be inflected by this weapon. Though no subsequent opinion of doctor regarding use of this weapon has been obtained by IO, yet it is not harmful as the use of weapon may also been considered by this FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 40 of 58 court and court is of the opinion that this weapon was capable to cause such injuries as suffered by injured Pawan.
41. Similarly, the use of danda also could not be disputed because no specific injury was noticed by the doctor on the injured during MLC. PW1 sustained so many incised wounds and was instantly referred for higher management being in serious condition and multiple X-rays were conducted on his body which followed by his long hospitalization and, in such situation, it was quite possible that some injuries caused by such weapon might have not noticed by the doctor concerned, especially when PW1 has deposed that he was hit by danda on his lag and Rohit was hit on his head by both accused Ghanshyam @ Rahul and Chokhey Lal @ Guddu. The MLC of injured Rohit has also corroborated this use of danda during the incident. Even otherwise, PW1 has duly proved that all the accused caused him injuries by dandas, fist and kick blows and accused Bansi Lal also stabbed him repeatedly. In fact, if all the accused in furtherance of their common intention caused such injuries, then everyone is equally responsible for the acts of others by the virtue of section 34 of IPC.
42. Admittedly, Section 34 IPC is appliable where more than one accused has committed the offence in furtherance of his common intention with others and the only requirement is the meeting of mind to commit such offence. In such condition, and each one shall be equally liable for the acts of others in the same manner as if it were done by him alone. The section 34 IPC has come into interpretation before the Hon'ble Supreme Court in case FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 41 of 58 titled Ramesh Singh @ Photti v. State of A.P. (2004) 11 SCC 305 and the observation of the Hon'ble Court is as under-
"12. ....... As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. ........."
43. In view of the above said law, it stands proved that all the accused, who committed the offence of in furtherance of their common intention, are liable jointly and may be convicted with the help of this Section 34 IPC. In this case, PW1 has duly proved that all the accused firstly assaulted both injured with the help of kicks and fist blows as well as dandas and thereafter, accused Bansi Lal stabbed him multiple times and this testimony is sufficient to prove the involvement of all accused, irrespective of any particular injury caused by them and all are equally liable.
44. Ld. Counsel for the accused has further argued that no weapon of offence has been recovered at the instance of accused Chokhey Lal @ Guddu, due to his involvement to cause injuries could not be proved. However, this submission has no force. The involvement of accused FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 42 of 58 Chokhey Lal @ Guddu could not be disputed merely because no weapon of offence has been recovered at his instance, especially when PW1 Pawan has duly proved that he also used danda to cause injuries to both injured besides assaulting by kick and fist blows in pre-determined manner. Non-recovery of weapon of offence is not always fatal to the case particularly when the mode and manner of inflicting injuries has been duly proved by the eye witness in natural manner. The law to this effect of non-recovery of weapon of offence has been laid down by the Hon'ble Supreme Court of India in case titled Anwarul Haq v. State of UP, (2005) 10 SCC 581 that the eye witnesses have described the knife, and merely because the knife has not been recovered during the investigation same cannot be a factor to discard the evidence of PWs. Wounds noticed by the doctor also throw considerable light on this aspect. The doctor's opinion about the weapon, though theoretical, cannot be totally wiped out. As such, non-recovery of weapon of offence/ danda at the instance of accused Guddu is not fatal to give him benefit of doubt, especially when MLC of injured Rohit has also corroborated that those injuries were likely to be caused by such weapon used by accused. MLC of injured Rohit has already been proved on record by prosecution as Ex.PW13/A. The MLC and Discharged Summery of injured Pawan Mark X have also proved that the injured was also referred to Orthopedic Department and undergone X-rayed for bone injuries and this fact found support by the testimony of PW1 that he was caused leg injuries by dandas. As such, involvement of this accused is clear from the testimonies of the witnesses and their testimonies cannot be discarded merely by non-recovery of weapon of offence.
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 43 of 58
45. Ld. Counsel for the accused has further argued that the contradictions in the testimonies of the PWs are such glaring which cannot be ignored due to accused are entitled for benefit of doubt. On the other hand, Ld. APP for the State has opposed all such submissions on the ground that PWs have duly proved the involvement of the accused persons beyond doubt due to all the accused are liable to be convicted.
46. Before considering the contradictions in the testimonies of the witnesses, it is necessary to go through the law related to such contradictions. Only those contradictions are relevant which materially affect the case of the persecution. A similar proposition has been laid down in case titled Sunil Kumar Sambhu dayal Gupta (Dr.) and others v. State of Maharashtra, (2010) 13 SCC 657 that the contradictions / omissions must be of such nature which materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements which do not affect the core of the prosecution case should not be made a ground to reject the evidence of the witness in entirety.
47. The Hon'ble Supreme Court of India has further held in Bhajan Singh & Ors v. State of Haryana, (2014) 7 S.C.R.1 that;
"while appreciating the evidence of a witness minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the court to reject the evident in its entirety. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labeled as omissions or contradictions". Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 44 of 58 evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go the heart of the matter and shake the basic version of prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in statements of witnesses."
48. In view of above said case law, it stands proved that those omissions or contradictions effecting the core issue in dispute are liable to be considered. However, the testimonies of PW1 and other PWs have duly proved this case despite appreciating the testimonies with care and caution and after removal of all exaggeration and improvements. It is safe to rely upon the testimony of PW1 to convict the accused persons. Though Ld. Counsels for accused have pointed out some contradictions emerged during the testimonies of PWs viz-a-viz their previous statements u/s 161 Cr.P.C. in terms of Section 145 and 155 of Evidence Act to impeach their credibility, yet these contradictions have not been proved as per the procedure laid down by case titled Ashok Debbarma V. State of Tripura (2014) 4 SCC 747 and V. K. Mishra and Another v. State of Uttrakhand and Another (2015) 9 SCC 588. In fact, after contradicting the previous statements of the witness to them, the attention of IO who recorded these statements ought to be drawn to seek his explanation or to know the reason of such contradictions, otherwise court cannot suo-motu make use of such previous statements to read out as omissions or contradictions. In this case, neither such contradictions could be proved by adopting the similar mode and FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 45 of 58 manner of proving the contradictions, nor any such material contradiction has been pointed out which goes into the root of the cause to discredit the case of the prosecution. As such, contradictions appeared in the testimonies are of no use.
49. Ld. Counsel for the accused has further argued that there was a dispute of name of accused Bansi Lal or Vansi Lal, as injured Rohit named one Vansi Lal in FIR, whereas accused Bansi Lal has been arrested by the police, which is fatal to this case. However, it is not fatal. There may be difference of pronunciation of name of accused as Vansi Lal instead of Bansi being written in Hindi language or due to some typographical error in FIR, but this dispute is not going into the merit of this case, as accused Bansi Lal has been duly identified as assailant by PW1 by pointing him out before the court and this court identification is sufficient to rule out any dispute of identify of accused Bansi Lal and he was a real culprit. Even otherwise, accused ought to prove some evidence on record to prove this difference of identity, if both the persons were different, but no such evidence has been proved on record to this effect and this defense is afterthought.
50. Ld. Counsel for the accused has further argued that to prove the charges under section 307 IPC, there must be intention or knowledge on the part of accused and also that the injury must be life threatening and without proving this fact, it is not viable to convict an accused under section 307 IPC. It is further argued that the prosecution has failed to prove such FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 46 of 58 requisite intention or knowledge on the part of accused persons to convict them, as accused Chokhey Lal and Rahul did not use any dangerous weapon to make any attempt to kill the injured nor they caused any such injury which was likely to cause the death of injured, due to they are entitled for acquittal. It is further argued that even the accused Bansi Lal also had no intention to kill the injured and without such intention or knowledge on his part, he cannot be held liable under section 307 IPC. On the other hand, Ld. APP for State has argued that the nature of injuries caused by Bansi Lal would show that his intention was only to cause the death of injured as all the injuries were caused on the vital body parts like chest or abdomen, which also resulted into the loss of one of the kidneys of injured and this fact has duly proved that the intention of the accused persons was clear to kill him. Even dangerous weapons were also used during the incident which has strengthened the intention and knowledge of the consequences of use of such weapon by accused persons, due to all the accused are liable to be convicted.
51. Before dealing with the arguments of Ld. Defense Counsel, it is necessary to go through the substantive law u/s 307 IPC, which is as under:
Section 307-Attempt to murder. - whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 47 of 58 Attempts by life convicts. - [when any person offending under this section is under sentence of [imprisonment for life], if hurt is caused, be punished with death] Illustrations-
(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensured. A would be guilty of murder. A is liable to punishment under this section.
(b) xxxxxxx
(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. he has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of [ the first paragraph of] this section.
(d) xxxxxxx
52. This section has been defined by the Hon'ble Apex Court in various judgments, on various times and interpretation of the Hon'ble Court is material to be considered. It has been held in (1988) 4 SCC 551 titled Hari Singh Vs. Sukhbir Singh and Ors. that;
"Under Section 307 IPC what the court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder".
Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blows, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. In FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 48 of 58 this case, two parties in the course of a fight inflicted on each other injuries both serious and minor. The accused though armed with ballam never used the sharp edge of it. They used only the blunt side of it despite they being attacked by the other side. They suffered injuries but were not provoked or tempted to use the cutting edge of the weapon. It is very very significant. It seems to us that they had no intention to commit murder. They had no motive either. The fight as the High Court has observed, might have a sudden flare up. Where the fight is accidental owing to a sudden quarrel, the conviction under Section 307 IPC is generally not called for. We, therefore, see no reason to disturb the acquittal of accused under Section 307 IPC".
53. It has been further held in Parsuram Pandey & Ors. Vs. State of Bihar, (2004) 13 SCC 189 that To constitute an offence under Section 307 two ingredients of the offence must be present:
(a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it.
For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. The section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is necessary ingredient of Section 307, there can be no offence "of attempt to murder". Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place.
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 49 of 58
54. It has been further held in Bappa Allas Bapu Vs. State of Maharashtra & Another, (2004) 6 SCC 485 that " It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.
55. In view of the above-said case law laid down by the Hon'ble Supreme Court of India, it stands proved that the intention or knowledge of accused is material to cause injury and nature of injury is not relevant if intention or knowledge of accused is proved. On the basis of above said principles, it is to be seen as to whether accused persons have committed this offence for which they have been charged or not. PW1 was the victim and has proved that the accused persons beat both injured mercilessly by sticks, kicks and fist blows and also stabbed multiple knife injuries on vital body parts. He was beaten up till became unconscious and this fact has proved that the accused persons had intention to kill him and they even caused such injuries which were likely to cause his death. It is pertinent to mention here that all the accused persons called both the injured to the spot FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 50 of 58 again in a pre-planned manner and assaulted them instantly. They were armed with weapons and caused them serious injuries. They were well aware about the consequences of causing such injuries that those may be dangerous and this knowledge also made them liable. As such, all the accused acted in furtherance of their common intention and knowledge to cause the injuries to injured that those injuries might have killed him and all are equally liable, irrespective of the fact as to whether they all used dangerous weapon or one of them.
56. Motive: Motive of offence is usually not required to be proved if case is based upon the direct testimony of eye witness, but still PW1 has proved that there was a dispute between the landlord and sister of Bhola during which accused Rahul favored landlord and injured Rohit slapped him. To take the avenge of this slap, accused persons attempted to kill the injured Pawan and also caused head injuries to Rohit, which is a motive in itself. Even PW1 has also given another reason of stabbing to him by accused that Bansi Lal used to have bad eyes on his cousin and he used to object it, due to accused take advantage and stabbed him. On the other hand, accused persons have also cited another incident of slapping Gaurav by injured to be the reason of this incident. In both ways, the motive of accused persons to make attempt to kill injured stands proved. As such, this case is based upon the testimony of an eye witness, which is otherwise found reliable, due to motive lost significance, whereas motive of accused persons stands proved.
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 51 of 58
57. Identity of accused persons: Ld. Counsel for the accused has argued that the identity of all accused remained doubtful and prosecution has not led any evidence that accused Ghanshyam was also known as Rahul or that accused Chokhey Lal was also known as Guddu Chowmein Wala. However, this argument of Ld. Defense Counsel has no substance. All the accused persons were already known to both injured much prior to this incident and the contents of FIR have also proved this fact. Pawan in his statement u/s 161 Cr.P.C. also named them. Thereafter, PW1 has proved the identity of all accused by pointing out finger upon them. The names of the accused persons were mentioned with alias or nick names since beginning and they have been duly identified by similar nick names, whereas accused persons have not led any evidence that they were not known by these nick names. Even their statements u/s 313 Cr.P.C. are also silent about such defense.
58. Ld. Counsel has further argued that injured did not give any description of assailants in his statement due to it was not possible to police to identify them, but still police have arrested all accused in a dramatic manner and that too without establishing their identity. However, this defense is of no use. Admittedly, accused Chokhey Lal had been running a Chowmein Cart near school and this fact has also been duly admitted by accused itself by putting a positive suggestion to PW6 Jag Om that "it is true that Chokhey Lal used to carry a chowmein selling cart business from near a place nearby a school", whereas PW1 has also corroborated by deposing that he had purchased chowmein from Chokhey Lal @ Guddu FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 52 of 58 many times. Admittedly, injured Pawan did not have any personal grudge or enmity with Chokhey Lal and even did not know him prior to this incident due to there was no reason to falsely implicating him in this case. Though PW1 has admitted during his statement that he described Chokhey Lal as Guddu Chowmein Wala in his statement and did not give any other description, yet it was sufficient to identify the accused, as there was no other Guddu Chowmein Wala in the locality to distinguish him. PW1 has proved the identity of accused as assailant. Similarly, Ghanshyam @ Rahul has also been identified by the injured as assailant beyond doubt.
59. Ld. Counsel for the accused has further argued that accused Bansi and Ghanshyam @ Rahul were not present at the spot during the incident, whereas Chokhey Lal was at the house of his sister, but accused persons have not led any evidence to prove this defense, whereas the testimonies of the witnesses led by the prosecution are found reliable to prove the involvement of all accused to this incident.
60. Further, PW1 was suggested by the accused persons that the son of tenant of landlord of sister of Bhola namely Bhagat Ji teased the niece of Bhola namely Payal and matter was also reported to police, but later on settled. However, injured along with other persons reached the spot and tried to forcibly enter into the house of Bhagat Ji due to public persons gathered at the spot and someone from public stabbed him being considering him dacoit. However, this defense of the accused could not be proved for the want of any examination on record to this effect and this FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 53 of 58 defense is afterthought.
61. Expert Evidence: Prosecution has also proved some expert evidence to corroborate the testimony of injured. The vest worn by injured Pawan at the time of incident was duly seized by the police and doctor who has proved his MLC and IO / PW10 have duly proved this seizure. FSL report has corroborated the blood stains on this vest along with on other articles seized from the spot. Even knife was also containing blood on the tip which suggests the use of this knife during this incident. Though the blood group of blood-stains could not be matched with the blood group of injured on the knife, yet it is not fatal and rather has proved the use of knife by accused during this incident as origin of blood was of human. PW12 Naresh Kumar has proved FSL reports Ex.PW10/E and Ex.PW10/F and has deposed that human blood was found on the vest along with cut mark and blood was also detected on Ex.7 (knife). As such, expert evidence like medical and FSL have duly corroborated the testimony of PW1. IO also prepared the site plan of the place of incident which is also relevant and has proved the spot of incident. Even all the accused also got prepared the pointing out memo by pointing out the spot of incident and these pointing out memos are also relevant in terms of section 8 of Evidence Act as their conduct.
62. In view of the above said discussion, it stands proved that the involvement of all the accused persons with the help of Section 34 IPC stands proved to offence u/s 307/34 IPC and all the liable u/s 307/34 IPC.
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 54 of 58
63. Charge u/s 324/34 of IPC: As such, the charges u/s 307/34 IPC have been proved against all the accused persons, but Charges under section 324/34 IPC were also framed against all accused regarding the injuries sustained by injured Rohit. However, Rohit has not appeared before this court to prove his case and has not entered into witness box to prove the mode and manner of sustaining injuries by him during the incident. Even his MLC is not containing the nature of injuries suffered by him as he absconded and failed to appear before the doctors for assessment of injuries. In the absence of proving the mode and manner of sustaining injuries by injured Rohit, it is not safe to convict accused persons for the offence committed by them due to they are acquitted u/s 324/34 IPC.
64. Charges u/s 25 and 27 of Arms Act against Bansi Lal: Now the further charges under section 25 and 27 of Arms Act against accused Bansi Lal have to be considered. Accused Bansi Lal was arrested and got recovered a knife Ex.PX in pursuance of his disclosure statement. That knife was recovered from his house and was duly seized vide separate seizure memo. Even the use of such knife to cause injuries to injured Pawan has also been proved. However, this possession of buttondar knife, of which sketch is Ex.PW6/D, could be in contravention of section 4 of the Arms Act, 1958 only, which is punishable under Section 25 (B-1) (b) of Arms Act by the virtue of a notification under section 4 of Arms Act published by the Govt, but no such notification has been proved on record to this effect. In fact, the possession of a knife of specific description and specification is punishable offence by the virtue of such notification but such notification is required to be proved for such punishment. A FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 55 of 58 Notification No. F-13/203/78 Home (G) dated 17.02.1979 stated to be promulgated to ascertain the measurement of a knife to this effect, but prosecution has neither placed copy of such notification on record nor examined any witness to prove it in terms of section 78 of Evidence Act. Though judicial notice may be taken of existence of such notification without insisting upon to prove, yet copy of notification must be on record to draw such presumption, especially to ascertain the measurement of the knife, whereas prosecution has not placed on record even a copy of notification, due to offence u/s 25 of Arms Act could not be proved against the accused for illegal possession of knife.
65. Similarly, Section 27 of Arms Act makes the use of such illegal weapon punishable, but in the absence of any notification regarding the knife Ex. PX recovered at the instance of accused Bansi Lal, it could not be ascertained that the recovered weapon was illegally possessed or used in contravention of section 4/ 5 / 7 of the Arms Act which is punishable under section 27 of Arms Act. Admittedly, possession of knife is offence being contravention of notification u/s 4 of the Act and followed by its illegal use, but in the absence of such notification accused Bansi Lal is not liable u/s 27 of Arms Act as well and is liable to be acquitted for both the charges.
66. Lapses of investigation: (i) Though prosecution has successfully proved the charges u/s 307/34 IPC against the accused persons, yet IO has committed many lapses during the investigation which have resulted in acquittal of the accused Bansi Lal despite recovery of weapon of offence / knife under section 25/27 of Arms Act. IO was well aware that knife was FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 56 of 58 used by accused Bansi Lal to cause injuries and was also recovered at his instance. Even accused was also charge sheeted under such offences, but still IO did not bother to file copy of any Notification u/s 4 of Arms Act making this possession unlawful and also use of such knife to make punishable offence u/s 27 of Arms Act. This lapse was material and resulted into acquittal of the accused Bansi Lal u/s 25/27 of Arms Act.
ii. Further, IO did not seek subsequent medical opinion regarding the use of weapon of offence from the doctor concerned to corroborate the injuries by the weapon recovered at the instance of the accused and it was also a major lapse.
iii. IO seized one pair of sleepers from the spot, but no evidence has been collected to prove the connection of such slippers to the offence, accused or victims.
iv. IO did not collect the complete medical record of the injured from the hospital to prove the period of his hospitalization as well as the extent of injuries sustained by him. If the injured would have not produced his discharge summery Mark X before this court during his examination, then this court would have faced difficulty to ascertain the hospitalization period as well as extent of injuries sustained by injured and could have resulted into benefit to accused persons.
v. IO did not bother to inform the crime team to get inspected the scene of crime and in the absence of such inspection by crime team, material evidence could not be collected.
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 57 of 58 vi. IO committed so many lapses during investigation, but still SHO
concerned did not bother to go through the charge sheet before filing before the court and failed to supervise the investigation properly.
vii. In fact, the above said lapses of investigation on the part of IO and SHO concerned were material and are liable to be brought into the notice of the Joint Commissioner of Police, concerned Police Range for necessary information and action on his part, especially for their lapses regarding the offences u/s 25/27 of Arms Act. An Action Taken Report be filed within 8 weeks on receipt of the copy of this judgment.
67. Keeping in view of the facts of this case, I am of the considered opinion that the prosecution has successfully proved the charges u/s 307/34 IPC against all accused persons beyond doubt and they are hereby convicted u/s 307/34 IPC, whereas they are acquitted u/s 324/34 IPC. Accused Bansi Lal is also acquitted u/s 25/27 of Arms Act.
Announced in open court (Devender Kumar)
Today on 21.10.2021. Addl. Sessions Judge-02
North East District
Karkardooma Courts/Delhi
FIR No. 294/2012 5 State Vs. Bansi Lal & Ors. 58 of 58