Delhi High Court
Deep Chand @ Deepu vs State N.C.T. Of Delhi on 15 April, 2009
Author: B.N.Chaturvedi
Bench: B.N.Chaturvedi
* IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl. Appeal No. 327/2006 % Date of Decision : 15th of April, 2009 # DEEP CHAND @ DEEPU ..... Appellant ! Through: Mr. Sandeep Sethi, Sr. Adv. with Mr. Anurag Jain, Adv. versus $ STATE N.C.T. OF DELHI ..... Respondent ^ Through: Mr. M.N. Dudeja, APP Crl. Appeal No. 367/2006 # TULE RAM @ TULE ..... Appellant ! Through: Mr. V.S. Panwar, Adv. versus $ STATE N.C.T. OF DELHI ..... Respondent ^ Through: Mr. M.N. Dudeja, APP Crl. Appeal No. 411/2006 # HEM CHAND @ HEMU ..... Appellant ! Through: Mr. Sandeep Sethi, Sr. Adv. with Mr. Anurag Jain, Adv. versus $ STATE N.C.T. OF DELHI ..... Respondent ^ Through: Mr. M.N. Dudeja, APP * CORAM: HON'BLE MR. JUSTICE B.N.CHATURVEDI HON'BLE MR. JUSTICE G.S. SISTANI 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes : B.N.CHATURVEDI, J.
By a judgment dated 31st March, 2006 of the learned Additional Sessions Judge, the appellants were held guilty and convicted for an offence punishable under Section 302/34 IPC and sentenced to life imprisonment vide order dated 7th April, 2006. Aggrieved by their conviction and sentence, the three appellants are individually in appeal against the same which are being disposed of by a common order.
The prosecution case, as noticed by the learned Trial Court in the impugned judgment, unfolds that on 21st April, 1997, at about 12.30 p.m. while Mukesh Chaturvedi @ Mukesh Pandit (deceased) was present in front of his office at D-2, Pandav Nagar, Delhi and his driver, Satpal, PW-3 was cleaning his car at a short distance, the appellants, namely, Deep Chand @ Deepu, Tule Ram @ Tule, Hem Chand @ Hemu alongwith one Raj Kumar @ Pauwa arrived there. All the four were carrying fire arms. Soon after their arrival, all of them resorted to indiscriminate firing at Mukesh Pandit as a result he fell down. Soon thereafter a sky blue colour Maruti car, which was being driven by one Sher Singh @ Sheru arrived there. All the four said assailants managed to escape from the spot in that Maruti car. In a short while, a PCR van came there and Mukesh Pandit was removed therein by PCR officials to SDN Hospital. The incident was witnessed by Satpal, driver of the deceased, and three others, namely, Mukesh Sharma, Gavinder Singh and Arun Sharma. Mukesh Sharma happened to be an employee of Mukesh Pandit while Gavinder Singh and Arun Sharma were his friend and brother-in-law respectively. Mukesh Sharma, PW-1, Gavinder Singh, PW-2 and Arun Sharma followed the PCR van in deceased's car being driven by Satpal, PW-3. Mukesh Pandit was admitted at SDN Hospital around 1.15 p.m. He was, however, declared as brought dead by the doctor concerned.
On the basis of an information regarding the incident received at Police Station Trilok Puri, Delhi, a DD Report No.7A dated 21st April, 1997, Ex.PW-31/A, was recorded. A copy of such DD Report was handed over to SI R.N. Chaudhary for necessary action, who, accompanied by Ct. Balvinder Singh, 11197/DAP, proceeded to the spot. On reaching the place of incident, SI R.N. Chaudhary found a lot of blood splattered over the road and a number of empties and lead pieces of fired cartridges scattered all around. Inspite of his efforts in that respect, SI R.N. Chaudhary could not find any witness of incident at the spot. He stayed there for about an hour since he was not aware of the particular hospital where the injured had been removed.
At about 1.35 p.m. based on an information from duty Constable at SDN hospital received on phone at Police Station Trilok Puri, Delhi regarding death of Mukesh Pandit, another DD Report No.8A dated 21st April, 1997, Ex.PW-31/B, was recorded at Police Station Trilok Puri, Delhi and a copy of the same was forwarded to SI R.N. Chaudhary through Constable Kailash Chand, 1307/E. From the copy of this DD Report, SI R.N. Chaudhary came to know that the injured had been taken to SDN hospital. He accordingly moved to SDN Hospital from where he collected the MLC of Mukesh Pandit. He could not come across with any eye- witness at the hospital also for about an hour. It was around 3.00 p.m. only that PW Mukesh Sharma, PW-1, met SI R.N. Chaudhary at the hospital telling him that he was a witness of the incident. SI R.N. Chaudhary recorded the statement of Mukesh Sharma, PW-1 and sent that statement with his endorsement thereon for registration of a case under Section 302/34 IPC. An FIR was accordingly recorded at Police Station Trilok Puri at about 4.15 p.m. All the three appellants as also their accomplice Raj Kumar @ Pauwa were specifically named in the FIR. The police succeeded in effecting arrest of appellants, Deep Chand, Tule Ram, Sher Singh and Raj Kumar. However, as appellant Hem Chand @ Hemu had absconded and was declared as a proclaimed offender, he could be arrested only in January, 2000.
In the course of trial, Raj Kumar @ Pauwa died and therefore proceedings against him stood abated. Sher Singh driver of Maruti car allegedly used by the appellants and Raj Kumar @ Pauwa to escape from the spot was acquitted of the charge by the learned Trial Court in view of insufficiency of evidence.
The appellants in their respective statements under Section 313 Cr.P.C. denied their alleged role as assailants. Appellants Deep Chand @ Deepu raised a plea of alibi. According to appellant Deep Chand @ Deepu on 19th April, 1997, he was at village Meetli near Baghpat to find a match for marriage of his daughter where he suddenly developed pain in his lower abdomen and was taken to Government dispensary there for treatment. He claims to have had visited that dispensary on 21st April, 1997 again as inspite of treatment, he did not get any relief. On that date, the doctor concerned referred him to LLRM Medical College, Meerut A total of 35 witnesses were examined by the prosecution to prove the charge against the appellants. Four witnesses were examined on behalf of appellants Deep Chand and Tule Ram in their defence. Appellant Hem Chand did not adduce any evidence in his defence.
Learned Trial Court accepted the testimony of Mukesh Sharma, PW-1, Gavinder Singh, PW-2 and Satpal, PW-3 to record finding of conviction against the appellants. Plea of alibi raised on behalf of appellant Deep Chand as also in respect of Raj Kumar @ Pauwa (since dead) were rejected by the learned Trial Court as the evidence produced in support of the same, lacked credibility.
Shri Sandeep Sethi, Sr. Adv. representing appellants Deep Chand and Hem Chand questioned the correctness of impugned conviction and sentence on the ground that in view of statements of SI Harihar Prasad, DW-1 as also of SI R.N. Chaudhary, PW-31, no witness of incident was found present after the incident either at the spot or at the hospital and thus prosecution's claim that Mukesh Sharma, PW-1 and Gavinder Singh, PW-2, had apart from Satpal, PW-3 witnessed the incident taking place is highly doubtful and in the circumstances, learned Trial Court erred in relying on their testimony to find the charge under Section 302 IPC proved beyond doubt. It was argued that though in the course of his statement before the Court, Satpal, PW-3, named the appellants Deep Chand, Hem Chand and Tule Ram in addition to Raj Kumar @ Pauwa as the assailants, in his statement under Section 161 Cr.P.C. before the police, he had rather told that he could not see the faces of the assailants and was, therefore, unable to name them. In the circumstances, contended the learned counsel, the statement of Satpal, PW-3 stands considerably discredited and could not be accepted as a basis to record the finding of conviction against the appellants. On behalf of the appellant, Deep Chand, it was further argued that on the date and time in question, he was, in fact, present at Primary Health Centre, Village Meetli near Baghpat in connection with his treatment for acute pain in his lower abdomen and thus could not have been present at the place of incident. Even appellant, Hem Chand, according to learned counsel, was at his native village looking after his ailing father on the relevant date and time and could not have been present at the spot. Similarly, in respect of Raj Kumar (since dead), it was pointed out by the learned counsel that he was on the relevant date and time inspecting the file of a court case pending against him and his presence at the spot is thus belied. Learned counsel submitted that inspite of the fact that Mukesh Sharma, PW-1 and Gavinder Singh, PW-2 claimed to have had helped in lifting injured Mukesh Pandit to put him in the PCR van for being taken to the hospital, clothes of neither of them got bloodstains which also renders their presence at the time of incident doubtful. It was argued that the prosecution failed to produce any evidence in respect of Mukesh Sharma, PW-1 being an employee of the deceased. It was pointed out that this witness has a history of being involved in two cases of murder which renders his testimony impeachable. Even though, argued the learned counsel, the site plan of the place of incident was allegedly prepared by SI R.N. Chaudhary at the pointing out of this witness, omission to pinpoint the location of respective assailants in such site plan raises doubt regarding his actual presence at the time of incident. In respect of Gavinder Singh, PW-2, the learned counsel pointed out that his statement was recorded as late as at 5/5.15 p.m. and in his statement under Section 161 Cr.P.C., he does not make mention of presence of any other eye-witness which renders his presence at crime scene doubtful. It was contended that inspite of sufficient evidence proving alibi in respect of Deep Chand and Raj Kumar being available on record, the learned Trial Court wrongly arrived at a finding to the contrary. Learned counsel argued that even if the alibi of one of them is accepted, the entire prosecution case falls. To support this contention, he refers to a decision of a Division Bench of this Court in Resham Singh v. State, Manu/DE/7184/2007. Shri Sethi accordingly submitted that the conviction of the appellants Deep Chand and Hem Chand as recorded by the learned Trial Court is not justified and is liable to be set aside.
On behalf of appellant Tule Ram, Shri V.S. Panwar, Adv. argued that SI Harihar Prasad, DW-1, was as a matter of course to be examined by the prosecution but it failed to do so. He submitted that where prosecution withholds examination of a witness and such witness is later examined in defence, his version deserves to be accepted as correct. Referring to DD Report No.7A dated 21st April, 1997, Ex. PW-31/A, learned counsel pointed out that contrary to prosecution case, it was a Maruti van and not a Maruti car which was informed to have had been used by the assailants to escape from the spot. Learned counsel was critical of prosecution's move of not examining and dropping without any reason Arun Sharma, who was claimed to be one of the eye-witnesses. Learned counsel felt that if the alleged witnesses of the incident examined by the prosecution would have actually been present, the names of the assailants would have become known to SI Harihar Prasad (DW-1) and he would have in turn, mentioned their names in the log book of the PCR van. Absence of names of assailants in the log book of the van, contended the learned counsel, creates doubt in regard to actual presence of Mukesh Sharma, PW-1, and Gavinder Singh, PW-2 at the time of incident.
Countering the arguments raised on behalf of respective appellants, Shri M. N. Dudeja, APP argued that recovery of one of the weapons of offence pursuant to a disclosure by appellant Hem Chand @ Hemu in that respect coupled with the CFSL report confirming that the same was used as one of the weapons of offence in causing gunshot injuries on the person of Mukesh Pandit provides additional support to the eye-witness account of the incident as deposed by Mukesh Sharma, PW-1, Gavinder Singh, PW-2 and Satpal, PW-3. In addition, it was argued that appellant Hem Chand @ Hemu being an absconder for almost three years after the incident before his eventual arrest in January, 2000 supplies yet another circumstance which goes to prove his involvement in the commission of the crime. In this connection, a reference was made to Section 8 and 14 of the Evidence Act as also decisions of the Supreme Court in Usman Mian & Ors. vs. State of Bihar, 2004 IX, AD (SC) 361 and State of Karnataka v. Lakshmanaiah 1992, Suppl. (2), SCC 420, Shri Dudeja pleaded that the eye-witness account of the incident as reflected from the statements of Mukesh Sharma, PW-1, Gavinder Singh, PW-2 and Satpal, PW-3 are sufficient to find beyond doubt that it were the appellants and their accomplice Raj Kumar, who had resorted to indiscriminate firing on Mukesh Pandit in a concerted way with an intent to cause his death and were thus rightly held guilty of the offence under Section 302/34 IPC by the learned Trial Court. It was submitted that for the reasons recorded in the impugned judgment, the learned Trial Judge was justified in discarding evidence of witnesses examined in defence including those to support the plea of alibi.
We have heard learned counsel on either side. We have examined the impugned judgment of conviction and also scrutinized the evidence on record.
It being a case based on evidence of eye-witnesses, the statements of those who claim to have had seen the occurrence taking place occupy pre-eminent position. Before the testimony of the eye-witnesses is accepted to record a finding of conviction, their presence at the scene of crime at the relevant time must be held proved beyond the realm of doubt. In the present case, leaving apart Satpal, PW-3, for the time being, the actual presence of Mukesh Sharma, PW-1 and Gavinder Singh, PW-2 was questioned by the learned counsel appearing for respective appellants primarily on the strength of statements of SI Harihar Prasad, DW-1 and SI R.N. Chaudhary, PW-31. SI Harihar Prasad, DW-1 was one who reached the spot soon after the incident. He got Mukesh Pandit, deceased, removed to SDN hospital in his PCR van. According to him, Satpal, PW-3, accompanied the injured in PCR van only. He further affirmed that Satpal, PW-3 on being inquired as to how the incident took place, told him that the incident did not take place in his immediate presence. SI Harihar Prasad, DW-1 further affirmed that Satpal, PW-3 did not tell him about any other person who would have witnessed the occurrence. SI R.N. Chaudhary testified that on reaching the place of incident inspite of his being present there for about an hour, he could not come across with any eye-witness. According to him even on reaching the hospital, no person claiming to be the witness of the incident met him there until 3.00 p.m. He testified that at 3.00 p.m. a U.P. police van followed by two private cars arrived at the hospital when Mukesh Sharma, PW-1 met him claiming to be an eye-witness. He stated in his cross-examination that Mukesh Sharma, PW-1 was one of those who had arrived in one of the private cars. On the contrary, Mukesh Sharma, PW-1, Gavinder Singh, PW-2 and Satpal, PW-3 affirmed that they had followed the PCR van in which Mukesh Pandit, deceased, was carried from the spot to the SDN Hospital, in the Contesa car belonging to the deceased. The car, according to all these witnesses, was being driven by Satpal, PW-3. The statement of SI Harihar Prasad, DW-1, however, contradicts the statements of all these three witnesses inasmuch as according to him, Satpal, PW-3 had accompanied injured Mukesh Pandit to the Hospital in the PCR van only and did not go there in a separate car. SI Harihar Prasad stated that he had made mention of this fact even in the log book of the PCR van, Ex.PW-7/D. He stated that the statement made by him that Satpal, PW-3, had accompanied the deceased in the PCR van was on the basis of some notes in that regard in his personal diary as also the log book entry, Ex.PW-7/D. The personal notes in his diary, which the witness had used to refresh his memory on a previous date, was not brought on record to find if the same actually carried a mention of the said fact. The log book entry, Ex.PW-7/D which was recorded at about 1.25 p.m. on the date of incident simply made mention of the fact that Satpal, driver of Mukesh Pandit, was there with SI Harihar Prasad, DW-1 when recovery of certain articles was effected at the hospital from the person of Mukesh Pandit. Mukesh Pandit as per log book entry, Ex.PW-7/D was removed from the spot in the PCR van at 12.41 p.m. and admitted at the SDN hospital at 1.08 p.m. when he was declared as brought dead by the doctor concerned. It is to be noticed that log book entry, Ex.PW-7/D, recorded at 1.25 p.m. simply makes mention of the presence of Satpal, PW-3 at the hospital with Mukesh Chaturvedi at the time when the personal search of Mukesh Pandit after being declared as brought dead was carried out. According to SI Harihar Prasad, DW-1, such personal search was effected by the doctor concerned which is, however, contradicted by Dr. Avinash Kumar Lad, PW-11, as he affirmed that the personal search of the deceased was, in fact, effected by the duty Constable, though in his presence, and that the duty Constable had handed over the personal effects of the deceased to SI R.N. Chaudhary, PW-31. Thus, if the affirmation of Dr. Avinash Kr. Lad, PW-11 is to be accepted, the statement of SI Harihar Prasad, DW-1 would turn out to be incorrect in so far as he told that the personal search of the deceased was effected by the doctor concerned namely Dr. Avinash Kr. Lad, PW-11 and that the articles recovered from such search were handed over to Satpal, PW-3. The articles recovered from personal search of the deceased are detailed at encircled portion B in MLC, Ex.PW-11/A. Though Ex.PW11/A is written and signed by Dr. Avinash Kr. Lad, PW-11, the search was actually effected by the duty Constable only in his presence and all the articles were then handed over to SI R.N. Chaudhary, PW-31 who made an endorsement in that regard at encircled portion F of Ex.PW-11/A and signed the same in acknowledgement of receipt of the personal effects of the deceased. Even though SI Harihar Prasad, DW-1 was present at the Hospital when SI R.N. Chaudhary had arrived there and he is stated to have had made over Satpal, PW-3, to SI R.N. Chaudhary, no statement under Section 161 Cr.P.C. of SI Harihar Prasad, DW-1, was recorded at any point of time. Even though according to SI Harihar Prasad, DW-1, Satpal, PW-3, had told him that the incident was not witnessed by him he did not bring this fact also to the notice of IO. Of course, SI R.N. Chaudhary, PW-31 himself deposed in the course of his cross-examination that Satpal, PW-3 who met him at about 3.35 p.m. told him that he had not seen the assailants. From this statement of SI R.N. Chaudhary, PW-31, it would appear that he had not come across with Satpal, PW-3 before 3.35 p.m. He appears to have had reached the SDN hospital sometime around 2.00 p.m. and from 2.00 to 3.00 p.m., according to him, he had not met any witness of the incident. If DW-1, Harihar Prasad's statement is to be believed, he would have made over Satpal, PW-3 to SI R.N. Chaudhary, PW-31 immediately some time after SI R.N. Chaudhary reached the Hospital around 2.00 p.m. Even though SI Harihar Prasad, DW-1, states that Satpal, PW-3 had told him that he had not witnessed the occurrence and that way he could not be treated by him as an eye-witness, the fact remains that Satpal, PW-3, was very much present at the spot when the PCR van had arrived there soon after the incident and removed the deceased to SDN hospital. In terms of statement of SI Harihar Prasad, DW-1, Satpal, PW-3 was present at the hospital throughout and in the circumstances, it is somewhat puzzling when SI R.N. Chaudhary, PW-31 says that he came across with Satpal, PW-3 only at 3.35 p.m. The statement of Mukesh Sharma, PW-1 carrying endorsement, Ex.PW-31/C of SI R.N. Chaudhary, PW-31 had been recorded by 3.30 p.m. and it was only thereafter that SI R.N. Chaudhary, PW-31 comes to know of the presence of Satpal, PW-3. On reaching the SDN hospital, SI R.N. Chaudhary, PW-31 claims to have stayed in the duty Constable's room and no eye-witness met him in the hospital up to 3.00 p.m. inspite of his best efforts in that regard. From the statement of SI R.N. Chaudhary, PW-31, it is gathered that when he had reached the spot on a copy of DD Report No.7A dated 21st April, 1997, Ex. PW-31/A being received by him, he did not notice any car parked in front of the office of the deceased. This was stated by him in the first instance, but later he made a different statement in the course of his cross-examination when he affirmed that 'the bullets were recovered from the place near standing of car.' He further added 'I cannot say if the car had no bullet mark as I did not inspect the car.' Obviously, unless the car was actually found parked at the spot, he could not have made the above extracted statements concerning the car. From his self contradictory statements in regard to presence of car in front of the deceased's office, it is difficult to find if the deceased's car was still parked at the spot when SI R.N. Chaudhary, PW-31 had reached there. The presence of the car at the spot at the time of first visit of SI R.N. Chaudhary, PW-31 to the spot bears relevance to find the acceptability or otherwise of the statements of Mukesh Sharma, PW-1, Gavinder Singh, PW-2 and Satpal, PW-3 to the effect that they had followed the deceased in the PCR van to SDN hospital in that car. The statements of SI R.N. Chaudhary, PW-31 and SI Harihar Prasad, DW-1 as noticed above appear to be mutually contradictory and of a crisscross nature in certain respects and therefore, do not inspire confidence to find acceptability without corroboration which is of course lacking.
Mukesh Sharma, PW-1, Gavinder Singh, PW-2 and Satpal, PW-3 substantially corroborate each other's statement in regard to the manner in which the incident took place. They have also categorically named all the three appellants and their accomplice Raj Kumar @ Pauwa (since dead) who had gunned down the deceased by resorting to indiscriminate firing at him. No doubt, Satpal, PW-3, in his statement under Section 161 Cr.P.C. before the police omitted to say that he had identified the appellants as the ones who had inflicted gunshot injuries on Mukesh Pandit, his statement before the Court that he had witnessed Mukesh Pandit being shot at by the appellants and his accomplice Raj Kumar @ Pauwa cannot be disbelieved particularly in view of his indisputable presence at the spot. It cannot be lost sight of that Satpal, PW-3 happened to be a witness of a daredevil act on the part of the appellants and their accomplice Raj Kumar @ Pauwa where Mukesh Pandit was done to death by spraying bullets on him in a broad day light. In such a scenario, Satpal, PW-3, getting scared and shaken and omitting to give a true account of the incident by naming the appellants and his accomplice Raj Kumar @ Pauwa as assailants in his statement under Section 161 Cr.P.C., is not difficult to appreciate. In a situation where inspite of admitted presence of Satpal, PW-3 at the hospital throughout, SI R.N. Chaudhary, PW-31, omitted to take notice of him until 3.35 p.m., it is difficult to accept his statement to the effect that he did not come across with any eye-witness at the hospital for an hour after his reaching there. Given the nature of his statement, it is not safe to base a finding on the testimony of SI R.N. Chaudhary, PW-31 that Mukesh Sharma, PW-1, arrived at the hospital at 3.00 p.m. only. Mukesh Sharma, PW-1, was an employee of Mukesh Pandit, deceased, on the relevant date. This fact is established in view of statements of Satpal, PW-3 and Gavinder Singh, PW-2. Absence of any documentary evidence, as argued on behalf of the appellants, cannot be a ground to discard the oral statements of Satpal, PW-3 and Gavinder Singh, PW-2 in this respect, apart from the statement of Mukesh Sharma, PW-1 himself. The learned Trial Court would thus appear to have committed no error in accepting the statements of Mukesh Sharma PW-1 and Satpal, PW-3 to hold the appellants guilty of murder of Mukesh Pandit. Gavinder Singh, PW-2, of course, was only a chance witness and even if his testimony is left apart, the statements of Mukesh Sharma, PW-1 and Satpal, PW-3 are sufficient to prove beyond doubt the involvement of the appellants and their accomplice Raj Kumar @ Pauwa (since dead) in the commission of the crime in question.
Not much really turns on other points raised in defence of the appellants. Absence of bloodstains on the clothes of the eye-witnesses, who helped in putting injured Mukesh Pandit in the PCR van, stands well explained by the concerned witnesses and thus the same cannot be a reason to doubt their presence at the time of the incident. Similarly, non-examination of Arun Kumar Sharma by the prosecution cannot be taken to have an adverse impact on prosecution case. It is the quality of evidence and not the number of witnesses examined in a particular case, which matters. Since three eye-witnesses stood already examined who fully corroborated each other's statement, there was nothing wrong in prosecution deciding to drop Arun Kumar Sharma.
According to Dr. Ram Gopal Vohara, DW-2, he had examined appellant Deep Chand at Primary Health Centre, Baghpat on 19th April, 1997 for lower abdominal pain and prescribed medicine for him vide OPD ticket, Ex. DW-2/A. However, as appellant Deep Chand did not respond to the treatment and approached Dr. Vohra, DW-2, on 21st April, 1997 again, he referred his case to LLRM Medical College, Meerut for further investigation and treatment. He made an endorsement in that respect on the OPD ticket, Ex.DW-2/A as also in patient's register, Ex. DW-2/B. It is noticed that in the OPD ticket, Ex.DW-2/A or patient's register, Ex.DW-2/B there is no mention of parentage of the patient. There is also no proof that it was Deep Chand, appellant, who had actually visited the said Primary Health Centre at Baghpat and was treated by Dr. Ram Gopal Vohra, DW-2, as stated by him. The OPD ticket, according to Dr. Vohra, DW-2, was prepared by the registration clerk. He affirmed that he could recognize Deep Chand, who was treated by him only as he was brought by Dharam Pal, Gram Pradhan of village Meetli. Dharam Pal, Gram Pradhan of village Meetli has, however, not been examined in defence to lend corroboration to the statement of Dr. Vohra, DW-2 that the appellant was brought to him by the said village Pradhan. A perusal of patient's register vide Ex.DW-2/B gives an impression as if this entry was not made in the register in normal course rather the same appears to have been interpolated at some later point of time. Appellant, Deep Chand, was suffering from acute pain in his testicular region which could have even proved fatal if statement of Dr. Vohra, DW-2 is to be believed, the appellant required immediate treatment. Though Nand Kishore, DW-3 stated that Deep Chand, appellant, on being referred to LLRM Medical College, Meerut went to Pyare Lal Hospital, Meerut wherefrom he was discharged after a few hours advising him surgery. No medical record from any such hospital is proved on record to find if Deep Chand-appellant had actually taken any treatment at any hospital in Meerut on his being referred to, by Dr. Ram Gopal Vohra, DW-2. The evidence produced on behalf of Deep Chand-appellant would, taken in its totality, appear to be insufficient to find that he was actually present on 21st April, 1997 at Primary Health Centre, Baghpat and was attended to there by Dr. Ram Gopal Vohra, DW-2 in connection with his any ongoing treatment for pain in testicular region and that on being referred to LLRM Medical College, Meerut, he attended the given hospital at Meerut and was ever treated there. Thus, learned Trial Court appears to have committed no mistake in rejecting the plea of alibi set up on behalf of the appellant-Deep Chand.
The plea on behalf appellant's accomplice, Raj Kumar (since dead) was to the effect that on 21st April, 1997, he attended the Court of a Metropolitan Magistrate, New Delhi in connection with criminal case No. 91/02 of 2003 titled State vs. Mahesh and another arising out of FIR No.254/1993, PS Lodhi Colony, U/s 379/411 IPC and that he personally inspected the case file from 12.30 to 1.00 p.m. on that day. One Ajay Dogra, DW-4 was examined in support of this plea. Shri Ajay Dogra, DW-4 testified on the basis of record brought by him that on 21st April, 1997, Raj Kumar had attended the Court concerned as an accused and that in terms of an endorsement on the inspection application, he inspected the case file from 12.30 to 1.00 p.m. The inspection application is marked as Ex.DW-4/B. The endorsement on this application to the effect that inspection of the case file was carried out by Raj Kumar from 12.30 p.m. to 1.00 p.m. on 21st April, 1997 appears to be in the hands of someone other than Raj Kumar himself. The person making this endorsement has not been examined. From the order allowing inspection vide Ex.DW-4/B, it is not ascertainable as to at what time such order was passed by the learned Metropolitan Magistrate concerned. Getting an endorsement showing inspection of case file from 12.30 to 1.00 p.m. on 21st April, 1997 on inspection application, Ex.DW-4/B could not be, in the circumstances, accepted to reflect the actual time of inspection of case file by Raj Kumar @ Pauwa. The learned Trial Court keeping in view the nature of evidence adduced in this regard rightly rejected the plea that Raj Kumar @ Pauwa was actually present between 12.30 p.m. to 1.00 p.m. on 21st April, 1997 in the Court of Ravinder Dudeja, Metropolitan Magistrate, New Delhi.
19. In view of foregoing discussion, the learned Trial Court was justified in holding the appellants' involvement in the commission of the murder of Mukesh Pandit being proved beyond doubt and convicting them for the same and in the circumstances we find no reason to interfere therewith. All the three appeals thus fail and the same are dismissed accordingly.
(B.N.CHATURVEDI) JUDGE (G.S.SISTANI) JUDGE April 15, 2009/BG Crl.A. Nos. 327/2006, 367/2006 & 411/2006 Page 22 of 22