Delhi High Court
Inderpal vs State on 19 March, 2010
Author: Ajit Bharihoke
Bench: A.K. Sikri, Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: March 11, 2010
Judgment delivered on: March 19, 2010
+ CRIMINAL APPEAL NO.193/1997
INDER BAHADUR ....APPELLANT
Through: Mr. Mukesh Kalia, Advocate
Versus
STATE .....RESPONDENT
Through: Mr. Pawan Sharma, Standing Counsel
WITH
CRIMINAL APPEAL NO.199/1997
INDER PAL ....APPELLANT
Through: Mr. Mukesh Kalia, Advocate
Versus
STATE .....RESPONDENT
Through: Mr. Pawan Sharma, Standing Counsel
CORAM:
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether 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 Digest ? Yes
AJIT BHARIHOKE, J.
1. The above referred appeals are directed against the impugned judgment dated 10.04.1997 convicting the appellants for the charges Page 1 of 26 Crl.A.Nos.193/1997 & 199/1997 under Section 302 IPC and Section 323 IPC, both read with Section 34 IPC as also the consequent order on sentence dated 19.04.1997.
2. Briefly stated, case of the prosecution is that on 13.02.92, Police Control Room informed Police Post Prashant Vihar that a quarrel was going on in the Maidan near Central Delhi Housing Society, Sector 14, Rohini. The information was recorded as DD No. 27 at 09:20 pm and the enquiry was entrusted to HC Ved Prakash (PW17), who alongwith Constable Ram Karan left for the spot.
3. The Police Control Room also informed the Police Control Van No. 69 which was on duty outside Prashant Vihar, Rohini. HC Ram Niwas (PW14) was the Incharge of the said van and he went to the spot where he found three persons lying injured, namely Baleshwar (deceased), Ram Nath (PW4) and Inder Bahadur (appellant). He took Ram Nath and Inder Bahadur to Hindu Rao Hospital. Another PCR Van also reached at the spot and took the deceased Baleshwar to Hindu Rao Hospital. At the hospital, Baleshwar was declared brought dead. Appellant Inder Bahadur and PW4 Ram Nath were admitted. Their MLCs were prepared and they were kept under observation.
4. PW17 HC Ved Prakash and Constable Ram Karan, on reaching the spot, found that the injured persons had already been removed to the hospital. HC Ved Prakash left behind Constable Ram Karan to guard the spot and went to Hindu Rao Hospital. There he collected the MLCs of the deceased, appellant Inder Bahadur as well as PW4 Ram Nath. Page 2 of 26 Crl.A.Nos.193/1997 & 199/1997 Ram Nath was declared fit for statement, while the appellant was declared unfit for statement.
5. PW16 SI Om Prakash, Incharge, Police Post Prashant Vihar had also received the message regarding the quarrel on his wireless set. He therefore went to the spot where Constable Ram Karan informed him that injured had been taken to Hindu Rao Hospital by the PCR Van and that HC Ved Prakash had also gone there. SI Om Prakash also went to Hindu Rao Hospital. The SHO, Inspector Balbir Singh (PW22), on receiving the information, also reached at the spot and from there, he went to the Hindu Rao Hospital.
6. At the hospital, MLCs of the deceased, the appellant and PW4 Ram Nath were handed over to the SHO, who recorded the statement Ex.PW4/A of PW4 Ram Nath. In the said statement, PW4 Ram Nath gave the eye-witness account of the occurrence. As per his statement, the deceased, accused persons and he himself were all residents of jhuggis in Sanjay Gandhi Colony, Sector 9, Rohini. Appellant Inder Bahadur used to run a tea stall in his jhuggi and for some time, he was claiming that the jhuggi in which the deceased was residing belonged to him and was asking the deceased to vacate the same. The deceased claimed that the jhuggi belonged to him. On 13.02.1992 at about 07:30 pm, the appellant Inder Bahadur and his „bhanja‟ (nephew- Inder Pal) visited the jhuggi of the deceased and started abusing Smt. Radhika (PW3), wife of the deceased and kicked the jhuggi of the Page 3 of 26 Crl.A.Nos.193/1997 & 199/1997 deceased in order to demolish it. Smt. Radhika protested and asked them to talk to her husband when he returned. In the meanwhile, the deceased came there and the appellant and his co-accused took him to the jhuggi of the appellant for discussion. He (witness) also followed them. After reaching his tea shop, the appellant demanded from the deceased if he would vacate the jhuggi or not. The deceased replied that the jhuggi belonged to him. On this, the appellant brought an iron pipe from his shop and his co-accused Inder Pal brought a „saria‟. On the exhortation of the appellant, they both attacked the deceased with pipe and „saria‟. When he (witness) tried to intervene, Inder Pal hit him with „saria‟ on his back and right hand, resulting in injury. Thereafter, the appellant and his co-accused ran away leaving behind the pipe and the „saria‟. While running away, appellant tried to scale over a wall and in the process, he fell down and got hurt. The other co-accused Inder Pal succeeded in escaping. On the basis of this statement, Inspector Balbir Singh got the instant case registered under Section 302 and 323 IPC read with Section 34 IPC vide FIR Ex.PW7/A.
7. During investigation, Inspector Balbir Singh recorded the statement of Ms. Radhika in the hospital. He left a Constable in the hospital to guard over the appellant Inder Bahadur and went to the spot of occurrence. He inspected the spot, got it photographed, prepared the site plan and seized blood samples, etc. Thereafter, he went to the jhuggi of the appellant and recovered from there, weapons of offence, i.e., pipe and the „saria‟ in presence of PW4 Ram Nath, who Page 4 of 26 Crl.A.Nos.193/1997 & 199/1997 identified the weapons of offence. Those weapons were sealed in separate packets and taken into possession. Case property was then deposited in Malkhana. Inspector Balbir Singh (PW22) conducted inquest proceedings and sent the dead body for post mortem. The appellant was arrested after his discharge from the hospital. However, his co-accused Inder Pal could not be arrested.
8. Post mortem examination was conducted on 14.02.92 at 1:00 pm by Dr. L.K. Barua of Civil Hospital vide his report Ex.PW9/A. The following external injuries were found on the body:
i) One lacerated wound in frontal area of the head, placed antero posteriorly of the size 2½ " x ½" and it was bone deep;
ii) One obliquely placed bruise mark in front of abdomen of the size 8 cms. x 2.5 cms with raised congested margins with pale central area.
9. On internal examination the scalp underneath the injury mentioned in external injury No.1 showed effusion of clotted blood. Right frontal bone of the head showed one fractured line placed obliquely upto the right temporal area. The brain showed think sub- dural haemorrhagic clot on right front parietal area. Base of the skull was fractured in the middle and right anterior cranial fossa. On exploration of abdomen, liver was seen lacerated and the size of the laceration was 4" x ½". There was linear effusion of blood clot under the surface of muscle of abdomen beneath injury No.2. Page 5 of 26 Crl.A.Nos.193/1997 & 199/1997
10. As per the post mortem report, all the injuries were ante-mortem and were caused by blunt force application. Injuries No.1 and 2 were individually sufficient to cause death in ordinary course of nature and death was due to coma associated with haemorrhagic shock resulting from injuries.
11. The exhibits were sent to CFSL for serological examination. Reports of CFSL are Ex.PW22/F, PW22/G and PW22/H. As per the reports, human blood was detected on both the pipe and „saria‟ seized during investigation, but blood group could not be ascertained.
12. On completion of the investigation, challan under Section 302/323 IPC read with Section 34 IPC was filed on 13.05.92 against the appellant Inder Bahadur showing his co-accused Inder Pal as a proclaimed offender. Co-accused Inder Pal was arrested on 13.07.92 and a supplementary challan was filed against him on 25.08.92. Both the challans were consolidated and committed to the Sessions Court for trial.
13. The appellant and his co-accused Inder Pal were charged under Section 302 IPC read with Section 34 IPC and Section 323 IPC read with Section 34 IPC. Both the accused pleaded innocence and claimed to be tried.
14. The prosecution, in order to bring home the guilt of the appellant as well as his co-convict Inder Pal, examined 22 witnesses. Page 6 of 26 Crl.A.Nos.193/1997 & 199/1997
15. The appellant as well as the co-convict were examined under Section 313 Cr.P.C. to afford them an opportunity to explain the incriminating evidence against them. Both of them denied the prosecution version. Appellant Inder Bahadur explained that Itwari, Noor Mohd, Ran Singh and Baleshwar (deceased) were bad characters of the area and they used to indulge in eve teasing after consuming liquor. On 13.02.92, a large number of people armed with „lathis‟ and „saria‟ collected at some distance from his (appellant) jhuggi and protested against their behaviour. On hearing commotion, he went to the spot and noticed that a fight was going on between Itwari, Noor Mohd. Run Singh and Baleshwar (deceased) on the one hand and 40/50 persons on the other hand. On seeing this, he got scared and tried to run away. In the process, someone inflicted injury on his head and he fell down on the ground and lost consciousness. Before he lost consciousness, he saw the deceased Baleshwar running towards the other side and people armed with „saria‟, „lathis‟ and pipes were chasing him. The appellant claimed that he had not caused any injury on the person of the deceased. According to him, his nephew Inder Pal (co-convict) was not even in Delhi on the relevant day as he was in Allahabad.
16. Appellant Inder Pal, in his statement under Section 313 Cr.P.C. also denied the prosecution version and he set up a plea of alibi stating that on 13.02.92, he was in Allahabad and that he was admitted as Page 7 of 26 Crl.A.Nos.193/1997 & 199/1997 indoor patient in Civil Hospital, Ram Nagar, Allahabad, for invective hepatitis from 10.02.92 till 20.02.92.
17. The appellants, however, did not lead any evidence in their defence.
18. Though the prosecution has examined 22 witnesses, material witnesses relevant for the purpose of this appeal, however, are PW3 Ms. Radhika, wife of the deceased, PW2 Raju Gupta, PW4 Ram Nath and PW9 Dr. L.K. Barua, the Autopsy Surgeon, who conducted the post mortem.
19. As per the case of prosecution, PW2 Raju Gupta had witnessed the occurrence. This witness, however, has not supported the case of the prosecution and he has denied having seen the occurrence. He also denied that his statement was recorded by the police.
20. PW4 Ram Nath is the star witness of the prosecution. He deposed that in the evening of the day of incident, he was present at the jhuggi of the deceased Baleshwar, when the appellant and his co- accused, who were known as Mama Bhanja came there and started kicking at the jhuggi. They also abused Radhika, wife of the deceased Baleshwar. Baleshwar was not present at that time and the appellant and his co-convict left saying that the deceased should be sent to them as soon as he arrives. The deceased Balwshwar came after 15 minutes and the appellant and his co-accused again came there. They took the deceased along with them saying "Chalo Faisla Karenge". Witness Page 8 of 26 Crl.A.Nos.193/1997 & 199/1997 further stated that he followed them to the tea-stall of the appellant and his co-convict. They threatened Baleshwar "Jhugi Khali Kar Dena, Verna Saley Tumhen Maar Denge". Baleshwar replied "Bhai Jhugi Hamari Hai, Hum Tum Ko Dekar Gaon Gaye Thei, Jhugi Khali Nahin Karenge". On this, the appellant took out an iron pipe and his co- convict, who was known as Bhanja, took out a „saria‟ and they started attacking Baleshwar. When he (the witness) intervened, the accused persons gave him blows on his right hand as also the right shoulder. Therefore, he ran into the nearby jhuggi raising an alarm to save himself. On hearing the noise, PW3 Radhika, wife of the deceased Baleshwar also reached there. Chotewala, i.e. Bhanja, escaped from the spot and Barewala, i.e., the appellant, while crossing over the boundary wall of DDA flats, fell down and sustained injuries. The witness also stated that both the appellant and his co-accused left the „saria‟ on the spot. As per this witness, police reached at the spot and seized the pipe Ex.P-1, „saria‟ Ex.P-2 and a pair of „chapples‟ of the deceased Ex.P-3, besides the blood of the deceased from the spot and the blood-stained clothes of the deceased. His statement Ex.PW4/A was also recorded. He has proved the seizure memos Ex.PW4/B and PW4/C. PW3 Radhika is wife of the deceased. She has corroborated the version of PW4 Ram Nath to the extent that on the fateful evening, her relative Ram Nath (PW4) was present at the jhuggi when appellants came and took her husband with them and 10/15 minutes later, she heard neighbours saying that the appellants Inder Bahadur and Inder Page 9 of 26 Crl.A.Nos.193/1997 & 199/1997 Pal have inflicted injuries on the person of the deceased. On this, she reached at the spot. She also deposed that the appellants wanted the deceased to vacate the jhuggi.
21. Learned Trial Judge found the testimony of PW4 and PW3 convincing and relying upon their testimony, he found the appellant guilty of charge under Section 302/34 IPC and convicted them.
22. Learned counsel for the appellants, while assailing the impugned judgment, submitted that the appellants have been falsely implicated in this case, which is apparent from the fact that out of the two purported eye-witnesses, PW2 Raju Gupta has not supported the case of prosecution and even PW4 Ram Nath has given two inconsistent versions about the incident in his examination-in chief and in his cross- examination. Learned counsel pointed out that as per the version given by PW4 Ram Nath in his cross-examination, the fatal injuries were caused to the deceased by a crowd of 30-35 persons and that version has gone uncontroverted as he was not subjected to the re- examination or cross-examination by the prosecution, which could easily have been done by seeking permission from the court. In support of this contention, he has relied upon the judgment in the matter of K. Anbazhagan Vs. Superintendent of Police, (2004) 3 SCC 767. Learned counsel submitted that PW4 Ram Nath is not a reliable witness because of his unnatural conduct, as depicted from the following circumstances:
Page 10 of 26
Crl.A.Nos.193/1997 & 199/1997
(i) He did not inform the police regarding this incident even being a close relative (Co-brother) of the deceased.
(ii) He did not inform the wife of the regarding this incident.
(iii) He did not remove the injured deceased to the hospital.
(iv) He did not disclose the names of the assailants to the Doctors at the time of preparation of the MLC.
(v) He took an absolute U-turn in his testimony and made his entire testimony unreliable & untrustworthy.
23. He also submitted that a possibility of fabrication in the FIR cannot be ruled out because of the fact that as per the witness, he did not know the names of the appellants but those names do find mention in his complaint statement Ex.PW4/A, which formed basis for the registration of the case. Learned counsel also took a plea that the identity of the appellant Inder Pal has not been established beyond doubt as no TIP was conducted and the identification of the appellant Inder Pal by the witnesses for the first time in the dock does not inspire confidence. Lastly, it is submitted that the investigation of this case has been conducted in an unfair manner, which stands established from the daily diary record of the police station in respect of the movement of the Investigating Officer and his fellow officers. Thus, it is strongly urged before us that the impugned conviction of the appellants be set aside and the appellants be acquitted of the charge.
24. Learned counsel for the State, on the other hand, has argued in support of the impugned judgment. He submitted that PW4 Ram Nath, who has given inconsistent versions in his examination-in-chief and the Page 11 of 26 Crl.A.Nos.193/1997 & 199/1997 cross-examination, can easily be termed as hostile witness irrespective of the fact that the learned Prosecutor did not seek permission to question the correctness of the version of PW4 in his cross-examination by resorting to Section 154 of the Evidence Act. He submitted that the law relating to appreciation of evidence of hostile witness is well settled and it is a trite law that the evidence of hostile witness need not be rejected ipso facto and the parties to the trial can take advantage of the favourable portion therein, provided that said version is found to be creditworthy by the court. The court however has to be extremely cautious and circumspect in such circumstances. In support of this contention, learned Prosecutor has relied upon the judgment Balu Sonba Shinde Vs. State of Maharashtra, (2002) 7 SCC 543.
25. Before adverting to the rival contentions on the merits of the case, it would be advantageous to have a look on the law relating to the subject.
26. In the matter of K. Anbazhagan (supra), while disposing of the transfer petitions seeking transfer under Section 406 Cr.P.C. of two criminal cases pending in the court of 11th Additional Sessions Judge (Special Court No. 1, Chennai) to a court of equal competent jurisdiction in any other State, Hon‟ble Supreme Court, inter alia, observed thus:
"29. On examining the facts of this case, as adumbrated above, on the touchstone of the decisions of this Court, as referred to above, the petitioner has made out a case that the public confidence in the fairness of trial is being seriously undermined. As revealed from the aforesaid recited facts, great Page 12 of 26 Crl.A.Nos.193/1997 & 199/1997 prejudice appears to have been caused to the prosecution which could culminate in grave miscarriage of justice. The witnesses who had been examined and cross-examined earlier should on such a flimsy ground never have been recalled for cross-examination. The fact that it is done after the second respondent assumed power as the Chief Minister of the State and the Public Prosecutor appointed by her Government did not oppose and/or give consent to the application for recall of witnesses is indicative of how judicial process is being subverted. The Public Prosecutor neither resorting to Section 154 of the Indian Evidence Act nor making any application to take action in perjury taken against the witnesses also indicates that trial is not proceeding fairly. It was the duty of the Public Prosecutor to have first strenuously opposed any application for recall and in any event to have confronted the witnesses with their statements recorded under Section 161 CrPC and their examination-in-chief. No attempt has been made to elicit or find out whether witnesses were resiling because they are now under pressure to do so. It does appear that the new Public Prosecutor is hand in glove with the accused thereby creating a reasonable apprehension of likelihood of failure of justice in the minds of the public at large. There is strong indication that the process of justice is being subverted.
........
31. .... On a combined reading of the aforesaid decisions of this Court, it emerges clearly that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. The decisions by this Court in the above- referred cases are rendered in cases where the Public Prosecutor sought permission to question his own witnesses by resorting to Section 154 of the Evidence Act and the court allowed the Public Prosecutor to cross-examine his own witnesses. In such cases the trial Judge has discretionary power to examine the entire testimony and accept that part of testimony which he finds to be creditworthy and act upon it. But in the present case, the public prosecutor has not sought permission from the Court by resorting to Section 154 of the Evidence Act even though the witnesses have resiled from their earlier testimony. In such a situation the subsequent testimony of the witnesses remains uncontroverted. Just to take an example, when the witness now states that his earlier evidence was given under pressure and no attempt is made to cross-examine such a witness, the Court may find it difficult if not impossible to accept the earlier statement. The trial Judge may find it difficult not to accept the subsequent testimony of the witness, which has remained uncontroverted. This causes great prejudice to the prosecution culminating in great miscarriage of justice."
27. The above judgment, in our considered view, is based upon its own peculiar facts. In the above said case, the Supreme Court was Page 13 of 26 Crl.A.Nos.193/1997 & 199/1997 concerned with the issue of transfer of trials pending in the State of Tamil Nadu to some other State in order to ensure just and fair trial, wherein the Supreme Court observed that it was the duty of the Public Prosecutor to first seriously oppose any application for recall of witnesses and in any event to have confronted the witnesses with their earlier statements under Section 161 Cr.P.C. as well as examination-in- chief by resorting to Section 154 of the Indian Evidence Act. The Supreme Court also observed that such a failure on the part of the prosecutor to resort to Section 154 of the Indian Evidence Act to controvert the subsequent testimony given by the witness in his cross- examination causes a great prejudice to the prosecution culminating in great miscarriage of justice.
28. In the instant case also, the prosecutor also did not resort to Section 154 of the Indian Evidence Act to controvert the subsequent version given by the witness PW4 Ram Nath in his cross-examination. Does it mean that the failure of the prosecutor, whether unwitting or deliberate, to resort to Section 154 of the Indian Evidence Act should result in throwing away the testimony of PW4 Ram Nath in his examination-in-chief or it is upon to the Judge concerned to appreciate the evidence and consider whether as a result of the said contradictory version of the witness in his cross-examination, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony? In our considered view, in such cases where the prosecutor failed in his duty, the system cannot be permitted to be held hostage Page 14 of 26 Crl.A.Nos.193/1997 & 199/1997 to the whims of the investigating agency or the prosecutor and it is the obligation of the Judge concerned to appreciate the evidence with extra care and caution and if the Judge feels that some part of the testimony of such a witness is reliable, there is no bar upon him to act on such testimony.
29. In the matter of Balu Sonba Shinde Vs. State of Maharashtra, (2002) 7 SCC 543, the Supreme Court, while dealing with the evidentiary value of the evidence of a hostile witness, held that the evidence of a hostile witness may not be rejected ipso facto and the parties can take advantage of such portions of the evidence which are found reliable by observing thus:
"14. It is at this juncture the prosecutor declared her a hostile witness and prayed for permission to cross-examine the witness -- upon, however, the leave being granted, PW 5 totally decried the factual aspect as contained in the complaint lodged, though, however, the thumb impression was admitted -- while it is true that declaration of a witness to be hostile does not ipso facto reject the evidence -- and it is now well settled that the portion of evidence being advantageous to the parties may be taken advantage of -- but the court before whom such a reliance is placed shall have to be extremely cautious and circumspect in such acceptance. Reference in this context may be made to the decision of this Court in State of U.P. v. Ramesh Prasad Misra[(1996)10 SCC 360] wherein this Court stated:
"It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted."
30. In the matter of Khujji Vs. State of M.P., AIR 1991 SC 1859, there were three eye-witnesses to the incident of murder, two of them including the complainant on the basis of whose statement the FIR was registered, expressed their inability to identify the accused persons Page 15 of 26 Crl.A.Nos.193/1997 & 199/1997 while the third supported the prosecution version in his examination-in- chief and also identified the accused persons. However, in cross- examination he waivered on the question of identity of the accused. The trial Court refused to place reliance on any of the eye-witnesses but found the other evidence on record sufficient enough to convict the accused persons. The High Court in appeal while maintaining the conviction relied upon the evidence of the witness, who had identified the accused in his examination-in-chief. The High Court held that the examination-in-chief of this witness was recorded on 16th November, 1976, whereas, his cross-examination commenced on 15th December, 1976 i.e. after a month and in between, he seemed to have been won over or had succumbed to threat. The High Court therefore took a view that the subsequent attempt of the witness to create a doubt regarding the identity of the appellant was of no consequence. The Apex Court in appeal not only relied upon the evidence of the witness who had turned hostile in cross-examination as was done by the High Court, but also relied upon the evidence of that witness who had lodged the FIR and who too had turned hostile. This is what the Apex Court observed.
"The High Court came to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of his examination-in-chief something transpired which made him shift his evidence on the question of identity to help the appellant. We are satisfied on a reading of his entire evidence that his statement in cross- examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief.
"..............We are, therefore, not impressed by the reasons which weighed with the trial Court for rejecting his evidence. We agree with the High Page 16 of 26 Crl.A.Nos.193/1997 & 199/1997 Court that his evidence is acceptable regarding the time, place and manner of the incident as well as the identity of the assailants."
31. In view of the submissions made by the learned counsel for the appellants, the crucial question for determination is whether the learned Trial Judge was right in relying upon the version of PW4 Ram Nath given by him in his examination-in-chief or whether in view of the summersault committed by him in his cross-examination, his testimony ought to be rejected as unworthy of reliance?
32. On perusal of the Trial Court record, it transpires that the examination-in-chief was recorded on 03.04.95. As per the proceedings sheet recorded by the learned Trial Judge on 03.04.1995, cross-examination of the witness was deferred on the request of the learned Defence Counsel who insisted on supply of copy of CFSL report to him before the commencement of cross-examination. Thereafter, PW4 Ram Nath became untraceable and the court had to issue bailable warrants for procuring his presence and ultimately, he was cross- examined by the learned counsel for the appellants on 07.08.96 i.e. after a gap of one year and four months. During this intervening period, the appellant Inder Bahadur enjoyed the benefit of interim bail for the period w.e.f. 21.06.95 to 05.07.95. Therefore, there is a strong possibility that the appellant Inder Bahadur might have won over the PW4 Ram Nath at that time. PW22 Inspector Balbir Singh, the Investigating Officer has stated that on receipt of the information about Page 17 of 26 Crl.A.Nos.193/1997 & 199/1997 the incident, he went to the spot of occurrence and from there, he went to the hospital. Thereafter, he made inquiry from PW4 Ram Nath and recorded his statement Ex.PW4/A, which was sent to the police station alongwith his endorsement Ex.PW22/A for the registration of the case. Perusal of rukka Ex.PW22/A reveals that it was sent to the police station on 13.02.92 at 11:55 pm. PW4 Ram Nath, in his examination- in-chief, is categoric that his statement Ex.PW4/A was recorded by the police and he appended his thumb impression on the said statement. The witness Ram Nath has nowhere stated either in the examination- in-chief or in the cross-examination that the aforesaid statement was not recorded as per his narration or that he was forced to make such a statement. From this, it can be safely inferred that the statement Ex.P4/A was voluntarily made by PW4 Ram Nath, which, for all practical purposes, is the FIR. It is settled law that the FIR in a criminal case, though not substantive evidence, can be used for the purpose of corroboration or contradiction of a witness. The initial version given by PW4 Ram Nath wherein he has implicated the appellants as the assailants who caused the fatal injuries to the deceased, is in consonance with the version detailed in the Ex.PW4/A. Therefore, we do not find any reason to suspect the correctness of the version.
33. On analysing the situation from a different angle, we find that in the cross-examination, the appellants have tried to project a story that since the complainant and his three friends used to indulge in eve- teasing, the neighbouring jhuggiwalas were agitated and on the Page 18 of 26 Crl.A.Nos.193/1997 & 199/1997 relevant day, 30-35 jhuggiwalas who were armed with dandas etc. attacked the deceased and caused him injuries. PW4 Ram Nath also stated in his cross-examination that when he intervened to save the deceased, he also sustained injuries at his fingers and the right shoulder. If that version is to be believed, then in an attack by 30-35 strong armed crowd, the deceased Baleshwar should have sustained multiple injuries on his body. This, however, is belied by the post- mortem report Ex.PW9/A, wherein it is recorded that only two injuries were found on the person of the deceased i.e. one lacerated wound in frontal area of the head, placed antero posteriorly of the size 2½ " x ½" and it was bone deep and one obliquely placed bruise mark in front of abdomen of the size 8 cms. x 2.5 cms with raised congested margins with pale central area. This circumstance also belies that the statement made by PW4 Ram Nath during his cross-examination which appears to be the result of some hobnobbing done by the appellants during the time gap between the recording of examination-in-chief and the cross-examination.
34. PW3 Radhika is the wife of the deceased. Admittedly, she was residing in the same jhuggi cluster. She was examined by the prosecution to prove the motive that the appellants wanted the deceased to vacate his jhuggi. She has stated that on 13.03.92 at around 07:00 pm, the appellants came to her jhuggi and took the deceased along with them. 10/15 minutes later, she heard a noise of jhuggiwalas that the appellants had inflicted injuries on the person of Page 19 of 26 Crl.A.Nos.193/1997 & 199/1997 the deceased Baleshwar. Someone informed the police and the police reached at the spot and removed her husband to Hindu Rao Hospital. It is pertinent to note that PW3 Radhika was examined in the court on three occasions. Her examination-in-chief was recorded on 28.03.95. She was cross-examined for first time on 11.12.95 and in that cross- examination, though, a suggestion was put to her that husband alongwith the Noor Mohd., Ituwari and Ran Singh used to take drinks and indulge in eve-teasing regarding which the residents of locality including Ramesh had made complaints, no suggestion was put to her in her cross-examination dated 11.12.95 that the fatal injuries were caused to the deceased Baleshwhar by the crowd of 30-35 persons. Even in her subsequent cross-examination dated 01.08.96, no such suggestion was given to PW3 Radhika Devi who was resident of the jhuggi in the vicinity of the spot of occurrence. Only suggestion given to her was that she did not hear the noise that the appellant had inflicted injuries on the person of her husband, which she denied. This circumstance also indicates that the defence of the appellant that the deceased Baleshwar was given fatal injuries by the neighbouring jhuggiwalas is only an afterthought and PW4 Ram Nath has given false statement in that regard in his cross-examination.
35. PW4 Ram Nath, in his cross-examination also stated that he had seen the appellant Inder Bahadur for the first time on the day of occurrence and he saw the appellant Inder Pal for the first time in the court when he came for evidence. If that version is to be believed then Page 20 of 26 Crl.A.Nos.193/1997 & 199/1997 it is obvious that the witness had no enmity or motive to falsely implicate either of the appellants as he had no axe to grind to suspect them. That being the case, it remains unexplained as to why he named both of them in his complaint statement Ex.PW4/A which was recorded on the same day within few hours of the occurrence. This circumstance also indicates that the statement made by the witness in his cross-examination, which was recorded after a gap of one year and four months from the date of his examination-in-chief, is false and he has tried to come to the rescue of the appellant by giving a distorted version.
36. In view of the above, we find no infirmity in the impugned judgment of learned Trial Judge finding the appellant guilty of the offence under Section 302/34 IPC relying upon the version of PW4 Ram Nath in his examination-in-chief.
37. The next criticism to the impugned judgment is that the learned Trial Court has failed to take note of the fact that the investigation of this case has been conducted in an unfair manner. Expanding on the argument, learned counsel for the appellants has drawn our attention to the DD entries No.52B dated 13.02.92(Ex.PW12/A) and DD No.56 dated 13.02.92 (Ex.PW20/DC). He has submitted that as per the DD entry Ex.PW12/A, the Investigating Officer, Inspector B.S. Dahiya left the Police Station on 13.02.92 at 10:15 pm for patrol in the area and as per DD No.56 Ex.PW20/DC, the Investigating Officer returned back to Page 21 of 26 Crl.A.Nos.193/1997 & 199/1997 the Police Station after the patrol duty at 11:50 pm in the night. In the arrival entry, there is no mention about the correctness or the visit of the Investigating Officer to Hindu Rao Hospital as well as the spot of occurrence. Learned counsel has pointed out that as per the case of the prosecution and the rukka Ex.PW22/A, it was sent to the Police Station by the Investigating Officer, Inspector B.S. Dahiya at 11:55 pm from the spot of occurrence. If that was the case, then the arrival entry Ex.PW20/DC has to be false. From this, learned counsel has urged us to infer that this is a case of ante-timing of FIR which has been recorded after due deliberations to falsely implicate the appellants.
38. We are hardly convinced with the aforesaid argument. Ex.PW20/DC appears to be the purported photocopy of the daily diary register. On perusal of this document, it transpires that it also contains the entries recorded at Serial Nos.53 to 59. In none of these entries, the date is mentioned. Even at the top of the page, the columns meant for date and time of opening and closing of DD reports are blank. Therefore, it cannot be safely concluded that DD entry No.56 Ex.PW20/DC pertains to the date 13.02.92. Further, careful perusal of DD No.56 reveals that there are some interpolations regarding the name and designation of the officer whose arrival at the Police Station is recorded in the entry. Further, it transpires from the record that the photocopy Ex.PW20/DC was put to the witness in his cross-examination by the learned counsel for the appellants without summoning the Page 22 of 26 Crl.A.Nos.193/1997 & 199/1997 actual DD register. It is not clear from which source the counsel for the appellants came into possession of said photocopy, therefore, a possibility of fabrication in respect of this DD report cannot be ruled out, which has not been properly proved by summoning the actual DD register. As such, we find no reason to suspect the fairness of investigation or the correctness of the version of PW4 Ram Nath given in his examination-in-chief.
39. Another contention raised by the learned counsel for the appellants is that the identity of the accused persons has not been established beyond doubt. The names of the accused persons given by the appellants in the statement of Ram Nath Ex. PW4/A, according to the learned counsel for the appellants could not have been given by him because in his examination-in-chief, PW4 Ram Nath did not mention the names of the accused persons and in his cross- examination he stated that he saw the appellant Inder Bahadur for the first time on the date of occurrence and he had never seen the appellant Inder Pal prior to his examination as a witness in the court.
40. The learned Trial Judge has dealt with this argument in para 39 of his judgment by observing thus:
"39......In my view this contention of the ld. Defence counsel does not carry any weight. The deceased Baleshwar, the accused persons and PW Ram Nath all used to live in the same jhuggi cluster of Sanjay Gandhi Camp, Sector 9, Rohini. Therefore, it is possible that PW4 Ram Nath knew the names of accused persons which are duly mentioned in his statement Ex.PW4/A on which the FIR of this case is based. In Ex.PW4/A, PW4 Ram Nath has also described the accused Inder Bahadur as Mama and accused Inder Pal as Bhanja.Page 23 of 26
Crl.A.Nos.193/1997 & 199/1997 This description he has repeated in his examination-in-chief in the court. In the circumstances, I am of the view that identity of the accused persons was never in dispute".
41. We are of the view that the learned trial Judge has rightly rejected the argument and we find no infirmity in the approach adopted by him, particularly when the witness physically identified both the appellants in the court.
42. The last contention of the learned counsel for the appellants is that the prosecution case regarding the place of recovery of iron pipe Ex.P1 and saria Ex.P2 is full of infirmity, which raises a doubt against the correctness of the prosecution case, particularly when PW4 Ram Nath has given two totally inconsistent versions in his examination-in- chief and the cross-examination. He has pointed out that according to PW4 Ram Nath, the appellants had left the saria as well as the pipe on the spot of occurrence whereas the Investigating Officer Inspector Balbir Singh, PW22 stated that saria and iron pipe were recovered from the jhuggi of the appellant.
43. In our considered view, this minor contradiction regarding the place of recovery of the iron pipe and the „saria‟, which has cropped up in the testimony of eye witness PW4 Ram Nath and the Investigating Officer cannot be taken as a reason to discard the version of PW4 Ram Nath given in his examination-in-chief, which finds corroboration from the recovery memo Ex.PW4/C. PW22 Balbir Singh testified that the Page 24 of 26 Crl.A.Nos.193/1997 & 199/1997 „saria‟ and the pipe were seized from the spot of occurrence vide memo Ex.PW4/C. On perusal of the memo Ex.PW4/C, which is contemporaneous record of recovery, it transpires that the iron pipe and the „saria‟ were seized by the Investigating Officer from the spot of occurrence, which spot, as per the scaled site plan Ex.PW11/A, is outside the jhuggi of the appellants. Otherwise also, the Investigating Officer, Balbir Singh was examined as a witness in January, 1997, i.e., after a gap of almost five years from the date of occurrence. Therefore, minor discrepancies regarding the place of occurrence, etc. in his testimony can safely be attributed to failure of memory due to lapse of time. Thus, we do not find any merit in this contention also.
44. In view of the discussions above, we are of the view that prosecution has been able to prove beyond reasonable doubt that the appellants, in furtherance of their common intention, with a view to pressurise the deceased Baleshwar took him to their jhuggi and threatened him to vacate the jhuggi. They asked him to vacate the jhuggi and failing which, threatened to kill him and when the deceased defied them by saying that the jhuggi belonged to him and he would not vacate it, they attacked him with iron-pipe Ex.P1 and saria Ex.P2 and caused him fatal injuries, resulting in his death. Thus, we do not find any infirmity in the impugned judgment of learned Additional Sessions Judge convicting both the appellants for the offences of murder of Baleshwar punishable under Section 302 IPC with the aid of Section 34 IPC.
Page 25 of 26 Crl.A.Nos.193/1997 & 199/1997
45. The appeal is accordingly dismissed.
46. The appellants are on bail. They be taken into custody and sent to Jail to undergo the remaining period of sentence.
AJIT BHARIHOKE, J.
MARCH 19, 2010 A.K. SIKRI, J.
pst
Page 26 of 26
Crl.A.Nos.193/1997 & 199/1997