Delhi District Court
1 S/ vs Suresh Pahalwan & Ors on 19 November, 2008
1 S/vs Suresh Pahalwan & Ors
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE01
SOUTH: PATIALA HOUSE COURTS
NEW DELHI
Sessions Case No. 203/2006/2003
State Vs. (1) Suresh Pahalwan @ Suresh Basoya (A1)
S/o Late Shiv Lal
R/o 2043 village Pillanji
K.M.Pur, New Delhi.
( 2) Dalip Kumar @ Gudar (A2)
S/o Late S. Satya Prakash
R/o 1589 Rishi Nagar, K.M. Pur
New Delhi.
( 3 ) Sushil Chowdhary @ Sushil Pahalwan (A3)
S/o Sh. Lekhraj
R/o 1810/5 Gyani Bajar, K. M. Pur,
New Delhi.
( 4 ) Lekhraj @ Lekhram @ Lekhu @Pahalwan (A4)
S/o Honam
R/o 1810/5 Gyani Bajar, K. M. Pur,
New Delhi.
FIR No. 225/03
PS K.M.Pur
U/s 302/120B/34IPC
& 25/27 Indian Arms Act
2 S/vs Suresh Pahalwan & Ors
Date of Institution : 28.10.2003
Date when the arguments
were heard :20.03.2008 to 09.09.2008 on several dates
and 23.10.2008
Date of judgment : 11.11.2008
JUDGMENT
The SHO PS Kotla Mubarakpur has challaned the accused persons to face trial for the offences under sections 302/34/120 B IPC & also U/s 25/27/54/59 of Indian Arms Act. The challan was filed before the Ld. Metropolitan Magistrate who after compliance of provisions of section 207 Cr. P. C committed the case as per section 209 Cr. P.C. to the Court of Sessions . BRIEF FACTS OF THE PROSECUTION CASE The Prosecution case, in brief, is that on 31.05.03 at about 12.45 PM from AIIMS hospital duty constable Narender Kumar gave information vide DD No.8 A that Sh. Surender Gupta S/o Rajpal Gupta resident of 47 Housing Society NDSE-I New Delhi was admitted to hospital after being shot. SI Anil Kumar along with Ct. Kishore Kumar went to AIIMS hospital and obtained MLC No. 56999/03 of injured Surender Kumar Gupta in which the doctor has opined that nature of injuries were dangerous and these were fire arm injuries. The doctor stated that the injured was not fit for statement and he was admitted to 3 S/vs Suresh Pahalwan & Ors casualty. IO recorded the statement of complainant Sh. Ashok Kumar Chowdhary who stated that at about 12 noon, he heard the noises, while he was in his office, that Surender Gupta was shot at. Surender Gupta was living in 47 Housing Society NDSE Ist New Delhi infront of the building of the complainant. He saw injured Surender Gupta in injured position at a distance of about 100 ft. from his office. The complainant ran to help Surender Gupta and with the help of 4-5 person the injured was picked up and kept in the rear seat of the vehicle of the injured and one Raj Kumar drove the vehicle and took the injured to AIIMS.
IO prepared the site plan on the pointing out of the complaint and got the spot photographed and seized the exhibits from the spot and recorded the statement of witnesses U/s 161 Cr.P. C. On the same day injured Surender Gupta died at AIIMS hospital after which his postmortem was got conducted and dead body was handed over to the legal heirs of the deceased after which the investigation of the case was done by inspector N.P. Singh SHO Police Station Kotla Mubarak Pur. On 02.06.03 accused Sushil @ Pahalwan, Suresh Phelwan and Dalip Kumar were arrested by the police from the Bus Stand, Sec-27, Noida at the pointing out of witness Vinod Kumar Gupta. They made the disclosure statements and identified the place of occurrence. On the basis of the disclosure statement of Sushil @ Pahalwan one country made revolver was got recovered by him from the bushes in the park near Safdarjung Terminal. Three accused 4 S/vs Suresh Pahalwan & Ors persons got recovered the clothes which they had wore on the day of occurrence. On the basis of the disclosure statement of accused Suresh Pahalwan and Dalip the knife used in the incident was got recovered. The matter was investigated by Sub Inspector Surender Kimar who recorded the statement of witnesses and arrested the accused Lekh Raj @ Lekh Ram who was the conspirator of the incident, on the basis of an anonymous complaint received against the accused persons by the police. Thereafter, the investigation was done by inspector V.K. Malhotra and on 17.07.03 Non bailable warrant was obtained against the accused Lekh Raj and Sub Inspector Aishbir arrested the accused Lekram @ Lekhraj @Lekhu @ Pahalwan and offecne U/S 120 B IPC was added in the case during the investigation. Postmortem report was received in which the cause of death is given as shock due to anti mortem injuries which collectively were sufficient to cause death in the ordinary course of nature. Two injuries were caused by fire arm and two injuries were caused by blunt force and rest of injuries were caused by sharp edged weapon.
According to police investigation, on 31.05.03 at about 11.45 AM all the four accused in furtherance of their conspiracy collected near the house of the deceased Surender Kumar Gupta and accused Lekhraj @ Lekhram asked other accused person to do the job intelligently (Kaam hoshiyari se karna). On 31.05.03 when the deceased Surender Kumar Gupta was going in his vehicle to 5 S/vs Suresh Pahalwan & Ors go somewhere, accused persons Sushil @ Pahalwan, Suresh Pahalwan and Dalip had exchanged heated conversation with deceased Surender Kumar Gupta on the question of some money transaction and dragged him ( Surender Kumar Gupta) from the car. Accused Sushil @ Pahalwan took out a country made revolver from beneath his shirt and fired twice at Surender Kumar Gupta due to which he ( Surender Kumar Gupta) fell down, accused Dalip caught hold of him and accused Suresh Pahalwan stated that he should not be let off and gave multiple blows to him with the knife. Thereafter, all the three accused persons left the spot thinking that Surender Kumar had died and people arrived there. During the investigation scaled map of the spot was got prepared by the police. The sanction U/s 39 Indian Arms Act was obtained. After preparation of challan and after obtaining the FSL report charge sheet U/S 173 Cr.P. C was filed after which supplementary challan was also filed.
CHARGES AND PLEA OF THE ACCUSED PERSONS Charge under section 302 IPC read with Section 120 B were framed against accused persons to which they pleaded not guilty and claimed trial. Accused Sushil Chowdhary @ Sushil Pahalwan and accused Suresh Pahalwan @ Suresh Basoya were also charged separately for the offence U/S 120 B IPC and U/S 25 & 27 of Arms Act. Accused Lekram@ Lekhraj @ Lekhu @ Pahalwan and accused Dalip Kumar @ Gudar were also charged separately for 6 S/vs Suresh Pahalwan & Ors the offence U/s 120 B IPC to which they pleaded not guilty and claimed trial. PROSECUTION EVIDENCE In support of its case, the prosecution has examined twenty five witnesses in all PW1 is Sh. Ashok Kumar Chowdhary who in his examination in chief proved the facts stated in his complaint but in his cross examination he stated that the persons who attacked the deceased were not present in the Court while the accused persons were present in the Court on that day. This witness, therefore, cross examined on behalf of the Prosecution also.
PW2 Smt. Shanti Devi and PW3 Smt. Kumari Shiela @ Choti are hostile witnesses and have not supported the prosecution case.
PW4 Sub Inspector Madan Pal prepared the scaled site plan Ex. PW4/A on 12.08.03.
PW5 is Sh. Rajpal Gupta father of the deceased Surender Gupta. He stated, in brief, that on 30.05.03 at about 8.30 /9.00 PM he was going to the shop of his deceased son Surrender Kumar Gupra, all the accused persons were standing in front of the shop of his son. The shop was of Reliance mobile phone. Accused Lekhraj @ Lekhram was telling other three accused persons that 7 S/vs Suresh Pahalwan & Ors Surender Kumar Gupta was avoiding to pay money and he will not pay any money. He further told the other accused persons that he will not agree this way and finish him ( Yeh es tahreh nahi manega, iska kaam kar do). He ( PW5) went to shop of his son where his grand son Bhanu was present and told him that about 8/10 days prior to it accused Suresh and Sushil had come to his shop and quarreled with his father ( Surrender Kumar Gupta). Surender Kumar Gupta told him that he will settle the matter with the accused persons by taking the help of some persons who will intervene in the matter.
PW6 Sh. Om Prakash and PW7 Sh. Narpat Singh are hostile witnesses and have not supported the prosecution case.
PW8 is Sh. Bhanu Gupta, son of the deceased Surender Kumar Gupta who stated that one week prior to his father's death, accused Sushil who is son of accused Lekhraj came to shop of his father along with accused Suresh at about 8 PM. They quarreled with his father on some payment of money. Accused Sushil at that time told that they have been sent by accused Lekhraj and they did not know what the consequences would be. They left the shop saying that they would come again.
PW9 is Head Constable Sh. Swaroop Singh who stated, in short, 8 S/vs Suresh Pahalwan & Ors that he was posted as Duty Officer on 31.05.03 at Police Station Kotla Mubarak Pur. At about 12.45 PM he recorded information vide DD No. 8 A . Copy of which is Ex. PW9/A. He also proved the carbon copy of FIR No. 225/03 as Ex. PW9/B. PW10 Head Constable Sh. Satish also stated that on 31.05.03 he was posted at Police Station Kotla Mubarak Pur as Duty Officer and recorded the DD No. 11 A and he proved its copy Ex. 10/A. PW11 is constable Sh. Balwant Singh who stated that he took 14 photographs of the spot as per the directions of the investigating officer. Negatives of which are Ex. PW11/1 to Ex. PW11/14 and the photographs are Ex. PW11/15 to 28.
PW12 is Constable Sh. Narender Singh who stated that he was on duty on 31.05.03 at AIIMS hospital and at about 12.45 PM, he informed Police Station Kotla Mubarak Pur that one Surehder Kumar was got admitted by one Ashok Kumar after receiving bullet injuries, vide DD no. 8 A. On the same day at about 6.05 PM he again informed Police Station Kotla Mubarak Pur that Sh. Surender Kumar Gupta had expired at AIIMS and that information was recorded vide DD No. 11 A. He also stated that on the same day he handed over one 9 S/vs Suresh Pahalwan & Ors pullanda sealed with the seal of CMO AIIMS to Sub Inspector Anil Kumar which contained the clothes of deceased Surender Kumar Gupta and the same were seized by Sub Inspector Anil Kumar vide recovery memo Ex. PW12/A. He also handed over the personal search of Surender Gupta to SI Anil Kumar vide memo Ex. PW12/B. PW13 is Shri Viresh Kumar who stated, in short, that on 31.05.03 at about 11.15/11.30 AM when he was coming from Mother Dairy Booth via Jagram Mandir Marg all the four accused persons were standing near the school wall and were talking to each other. While passing their sides he heard accused Lekh Raj telling the accused Sushil who was his son that work should be done intelligently and (the victim) should not escape. ( Kaam Hoshiyari Se karna- Bachne no paaye) .
PW14 is Sh. Subodh Kumar who stated, in short, that on 31.05.03 at about 11.45 AM/12 Noon he came to the house the Surender. When he was 20 ft. away from the car of the deceased he stood there and noticed that the deceased and the three accused were having an altercation. He then stopped there and then saw that accused Suresh pulling out the deceased Surender from his car. Accused Dalip and Suresh pulling out deceased Surender from the car and accused Sushil took out a katta and fired two shots at deceased Surender, 10 S/vs Suresh Pahalwan & Ors accused Suresh pulled out a knife and started hitting it on deceased Surender Kumar Gupta. After deceased had been hit twice by bullets he fell down but the accused Dalip held him and then accused Suresh gave knife blows to the deceased Surender Kumar Gupta. All the three accused escaped from there.
PW15 is Dr. Sanjeev Lalwani who proved the MLC of the deceased as Ex. PW15/A. PW16 is Dr. Chitranjan Behra, Senior Resident Doctor from AIIMS hospital who conducted the postmortem on the body of deceased Surender Kumar Gupta. He also proved the injuries on the person of Surender Kumar Gupta and gave postmortem report Ex. PW16/A. PW17 is Constable Sh Kishore Singh who accompanied the investigating officer and went to AIIMS hospital. He stated that Ashok Chowdhary also met them there whose statement was recorded by Sub Inspector which was endorsed by him and PW 17 took the rukka to police station at about 1.30 PM and got the formal FIR No. 225/03 recorded there, copy of which was brought by him to the spot. He also stated that one fired bullet was also lying on the spot which was lifted with the help of cotton and sealed with the seal of MLM after keeping in a small box and was taken in possession vide memo Ex. PW17/A. The sample of blood stained earth, sample of earth control 11 S/vs Suresh Pahalwan & Ors were also lifted and sealed in a different parcel with the same were seized vide memos Ex PW 17/B and Ex. PW17/C respectively. He also stated that Investigating Officer took in possession cloth parcel and sample seal vide memo Ex. PW12/A and the cash along with some documents vide memo Ex PW12/B. The Honda City car No. DL-5C-0001 was inspected and then seized vide memo Ex. PW 17/D. The witness also stated that after postmortem three sealed parcels, one sample seal and one dubbi/parcel containing bullet were given to him which he handed over to the IO who seized them vide memo Ex. PW17/E. The witness also proved the fired bullet Ex. P2.
PW18 is Sh. Vinod Gupta who is the younger brother of deceased Surender Kumar Gupta. He stated, in brief, that on 31.05.03 at about 12.30 PM he was going to the house of his brother Surender Kumar Gupta via DP Marg and reached at the Timber Market Bus Stand where accused Sushil, Suresh Pahalwan and Dalip @ Gudar met him. He inquired from there as to whether his brother Surender Kumar Gupta was present in the house or not as he used to come to his house. On this accused Sushil Pahalwan told him that ' tere bhai ka kaam hamesha ke liye tamam kar diya inke roj aaj aaj tak paise ke liya karta tha'. He went to the house of Surender Gupta where he came to know that his brother had been taken to AIIMS hospital in his car by Ashok Chowdhary and Raj Kumar as he had been shot. Accordingly he went to the AIIMS hospital and 12 S/vs Suresh Pahalwan & Ors found his brother in emergency and at about 3.30 PM his brother was declared dead and then he became sure that the way Sushil had told him was correct and then he came back to the spot where the incident had taken place. Police met him and recorded his statement. The witness stated that body of the deceased was identified by him on 01.06.03 and his statement is Ex. PW 18/A. On 02.06.03 he alongwith PW Subodh went to Police Station where inspector told him that the culprits were available at Noida. He alongwith Subodh and police officials went to Noida Sec-37 at Bus Stand where accused Sushil Pahalwan, Suresh and Dalip were present who were apprehended by the police. This witness also proved the disclosure statements of accused Sushil, Suresh Pahalwan and Dalip Ex. PW14/G, Ex PW14/M and Ex. PW 14/K respectively and stated that in pursuance of the disclosure statement of accused Sushil on same day he led him, Subodh and police officials near the bushes of Safdarjung terminal from where he got recovered the country made pistol which was taken into possession and its sketch was prepared which is Ex. PW1/H and the said pistol was seized vide memo Ex. PW14/J. He identified the said pistol as Ex. P1 . He also proved the arrest of accused persons vide memos Ex. PW14/D, Ex. PW14/E and Ex. PW14/F. He also stated that personal search of the accused persons were conducted vide memos Ex. PW14/A to Ex. PW14/C. PW19 is Head Constable Sh. Swaroop Singh. He stated, in brief, 13 S/vs Suresh Pahalwan & Ors that on 31.05.03 he was working as MHCM at Police Station Kotla Mubarak Pur. On that day, Sub Inspector Anil Kumar deposited with him Honda City Car No. DL 5C-P-0001 alongwith sample seal with the seal of CMO, AIIMS hospital and the personal belongings of the deceased which he entered into his register at S. No. 1288. This witness further stated that on 02.06.03 Inspector M. P. Singh deposited with him parcel sealed with the seal MP containing country made pistol (Katta) alongwith CFSL form at S. No. 1290. This witness again stated that on 03.06.03. Inspector M. P. Singh, SHO, Police Station Kotla Mubarak Pur deposited with him a parcel sealed with the seal of RKM which he entered at S. No. 1291 containing the details of articles in the parcel. On 04.06.03 Inspector M.P. Singh deposited with him a parcel sealed with the seal of DS said to be containing knife which he entered into his register at S. No. 1293. The extract of the entries made by him in the register is Ex. PW19/X. On 05.08.03 parcel of knife sealed with the seal of BS was sent through Sub Inspector Aishbir for AIIMS for opinion. On 13.08.03 twelve parcels out of the above said case property were sent to FSL Malviya Nagar vide RC No. 42/21 through Constable Subhash alongwith sample seal but this case property was not deposited in the office of FSL because of some objection and were received back in the Malkhana. On 21.08.03 the same case property was again sent through Constable Subhash vide RC. No. 43/21 who after depositing handed over to him copy of RC which is Ex. PW19/Y. The witness has also stated that so long as the parcels remained 14 S/vs Suresh Pahalwan & Ors in his custody nobody tampered with them.
PW20 is Sub Inspector Sh. Anil Kumar who corroborated the statement of PW17 regarding recovery of one bullet lying at the spot and blood stained earth. He also corroborated with statement of PW5 with regard to the statement Ex. PW5/A recorded by him and he attested the same and prepared a detailed rukka Ex. PW20/A and sent Constable Kishore for lodging of FIR along with rukka. He also stated that he recorded the statement of Vinod Gupta brother of injured and statement of one Subodh at the spot. He also corroborated with the statement of PW12 regarding the articles which were found on the dead body of the deceased. He also recorded the statement of Sheela, Shanti and Constable Kishore. He further stated that on next day inquest proceedings were conducted vide documents Ex. PW20/B, Ex.PW20/CPW8/A and Ex. PW8/B and also proved the receipt Ex. PW20/D by which the dead body of the deceased was handed over to the son of the deceased. This witness also proved the application for conducting of the postmortem Ex.PW20/E and proforma of this application Ex. PW20/C. PW20 stated that he joined the investigation of this case on 03.06.03 along with Inspector N. P. Singh and arrested the three accused persons namely Sushil, Suresh and Dalip from Bita 1 B 29 Greater Noida. He stated that 15 S/vs Suresh Pahalwan & Ors at the instance of the accused person and from an almirah lying therein, clothes of the accused persons were recovered which they were wearing at the time of committing of offence. These clothes were sealed with the seal of investigating officer and seal was handed over to him. Separate recovery memos were prepared which are Ex.20/F, Ex.20/G and Ex. 20/H. He also stated that an application was also received from Rajpal Gupta in which one Lekhraj was also named to be involved. Thereafter, he recorded the statement of Bhanu Gupta, Rajpal and Viresh. He also stated that on 11.08.03 he took draftsman Sub Inspector Madan Lal to the spot who took rough notes there for preparation of scaled site plan which was collected later on vide Ex. PW4/A. He also proved the T shirt Ex. F1 and EX. F12 the baggy type pant upon which the Papa Jeans was written which was seized vide memo Ex. PW20/F belonging to the accused Dalip. He proved Ex. G1 , the red check shirt and Ex. G2 , the black trouser having white prints belonging to accused Sushil Pahalwan seized vide memo Ex. PW20/G. He also proved Ex. H1, the T Shirt of red colour belonging to accused Suresh was seized vide memo Ex. PW20/H. PW 21 is ASI Hasrat Ali who stated, in short, that accused Lekh Raj was arrested in his presence vide memo Ex. PW21/A and his personal search was conducted vide memo Ex. PW21/B and his disclosure statement was recorded vide memo Ex. PW21/C .
16 S/vs Suresh Pahalwan & Ors PW22 is Inspector V.K. Malhotra who stated, in brief, that on 10.06.03 he was posted as SHO at Police Station Kotla Mubarak Pur and on that day he took over the investigation of the present case. He obtained the non bailable warrant of accused Lekh Raj from the Court who was absconding and he sent the weapon of offence to the FSL Department through Sub Inspector Yashbir for subsequent opinion. He tendered the FSL report Ex. PX and PY. He recorded the statement of the witnesses and stated that site plan was prepared and after completion of the investigation challan was prepared.
PW23 is Sub Inspector Aishbir who corroborated with statement of PW21 regarding the arrest of accused Lekhraj and his disclosure statement. He also stated on 05.08.03 as per the directions of investigating officer, he took a sealed parcel containing the knife sealed with the seal of BS to the Department of Forensic Medicine, AIIMS along with copy of MLC for obtaining the subsequent opinion and thereafter returned to PS and deposited the receipt copy with MHCM.
PW24 is Sub Inspector Bharat Singh who corroborated with statement of PW14 regarding the disclosure statements of three accused persons Suresh Pahalwan, Sushil and Dalip and recovery of one country made 17 S/vs Suresh Pahalwan & Ors pistol. This witness further stated that on 04.06.03 accused Suresh and Dalip were again interrogated and their disclosure statements were recorded vide Ex. PW24/A and Ex. PW24/B. Both the accused persons led to the police party to ganda nala near Pilanji Pul and accused Suresh got recovered a knife from underneath soil under the pulia. IO prepared the sketch of the knife vide Ex. PW24/C and put the same in a pulanda and sealed with the seal of the BS and seized it vide memo Ex. PW24/D This witness identified the katta/country made pistol Ex. P1. He also stated that one knife was seized in this case vide Ex. PW24/P1.
PW25 is Inspector Narender Pal Singh who corroborated with the statement of PW14 regarding the personal searches and disclosure statements of the three accused persons. He also stated that accused took the police party to the place of incident and pointing out memo Ex. PW25/A was prepared. He also corroborated with the statement of PW14 with regard to recovery of country made pistol by accused Sushil Chowdhary and prepared the sketch of the same vide Ex. PW14/H which was seized vide memo Ex. PW14/J. He also stated that the accused led the police party to B1/B29, Greater Noida where accused got recovered the clothes which they were wearing at the time of incident and the same were seized vide memo Ex. PW20/F, G and H after preparing their sealed pullandas. He also corroborated with the statement of PW24 regarding the 18 S/vs Suresh Pahalwan & Ors recovery of knife underneath the Pilanji Pul by accused Suresh and Dalip and preparing of the sketch of the knife and its seizure.
PLEA AND DEFENCE OF THE ACCUSED.
Statements U/S 313 Cr.P.C of the accused persons were recorded wherein they have either denied the incriminating evidence put to them or have expressed their ignorance about the same. They have stated that the case against them is false and witnesses are false. They have also stated that they were innocent and have not committed any offence. Accused Dalip, Sushil Pahalwan and Suresh have stated that they have not made any disclosure statement nor they have got anything incriminating recovered. All the recoveries have been planted upon them to strengthen the false case of the prosecution.
Accused Lekh Raj has stated that he was not involved in any conspiracy in this case. He had no conversation with the accused persons at any stage, as deposed by the witnesses. He was innocent and has not committed any offence.
In the defence evidence accused persons have produced only one witness, i.e, DW1 Rajkumar son of Sh Charan Singh resident of 1794, Kotla Mubarak Pur, N Delhi and thereafter closed their defence evidence.
19 S/vs Suresh Pahalwan & Ors ARGUMENTS AND FINDINGS I have heard the learned Additional Public Prosecutor for the State assisted by learned counsel for the complainant Shri M. K. Sharma Advocate, and learned counsel for the accused Lekh Raj Shri KK Manan Advocate and the counsel for other three accused Shri IU Khan Advocate assisted by Shri Vikas Arora Advocate and have gone through the record of the case, relevant provisions of law and the authorities cited from both sides.
The allegations against the accused Lekh Raj are of criminal conspiracy with the accused persons with regard to murder in question while, according to the prosecution case, the murder is committed by the the three accused persons Suresh Pahalwan, Dalip and Sushil Pahalwan on 31.05.03. Therefore, for the sake of convenience the case of accused Lekh Raj is being discussed first to be followed by case of other three accused persons which involve common appreciation of facts and law.
On behalf of prosecution it is argued that accused Lekh Raj conspired with the other accused persons and instigated them to kill the deceased Surender Gupta. It is argued that it is not necessary that each conspirator must know all details of agreement nor he is required to be 20 S/vs Suresh Pahalwan & Ors participant at every stage of the offence. It is not essential that all the conspirators should participate in the crime. Reliance is placed upon the authority Tuncay Alankus Vs. Union of India 2000 (2) CC Cases HC 275 Delhi. It is argued that the lapse of the investigation should not prevent the court from accepting eyewitnesses evidence if it is otherwise truthful. Reliance is placed upon the authority State of U. P. Vs. Sikander Ali and others 1998 (3) CC Cases (SC) 1 wherein following observations were made:
'' 11. Failure of the police officer to examine PW-2 Harnam Singh for twenty four days should not have been used to drop his evidence out. Investigating Officer said that he was unable to question PW-2 earlier as he himself was very much involved in other duties relating to the upkeep of law and order. This Court has repeatedly cautioned that lapse of the investigation should not prevent the court from accepting the eye-witnesses evidence if it is otherwise truthful.'' The arguments of the learned counsel for the accused Lekh Raj are that he, as per prosecution case, was not present at the spot at the time of murder of Surender Gupta. It is argued that the murder was committed on 31.05.03 but till 06.06.03 the name of accused Lekh Raj did not surface in the police record. He was neither named in the FIR nor in the disclosure statements of the co-accused persons. He was only a parokar or the person looking after the the accused persons in the proceedings in the case against them so he was
21 S/vs Suresh Pahalwan & Ors falsely involved in this case, later on, so that he may not be able to help the the accused persons in contesting the case. It is argued that PW8 Shri Bhanu Gupta in his first statement before police, recorded under section 161 CrPC on 01.06.03, did not say anything about accused Lekh Raj and has only in the supplementary statement dated 06.06.03 implicated him as conspirator in the crime. The further argument is that the accused Lekh Raj was arrested on 27.07.03 while the incident in question took place on 31.05.03. By sheer manipulation in the case diary the name of the accused seems to be inserted in back date. It is argued that the supplementary statement is not recorded by SHO who was the investigating officer but by the sub inspector by antedating it to be recorded on 06.06.03. It is also argued that while son of the deceased PW8 Shri Bhanu Gupta and PW5 Shri Rajpal Gupta the father of the deceased are produced by the prosecution to show that the accused Lekh Raj and the other accused persons, in the evening of 30.05.03, were present near the shop of the deceased and accused Lekh Raj instructed them to kill the deceased Surinder Gupta while another witness PW13 Shri Viresh Kumar is introduced by statement under section 161 CrPC recorded on 06.06.03 to show that on 31.05.03 soon before the murder of Surinder Gupta, accused Lekh Raj similarly instructed the other accused persons to kill Surinder Gupta. It is argued that the prosecution story regarding conspiracy is not worth believing and is introduced afterwards to falsely implicate accused Lekh Raj, therefore, the accused Lekh Raj is entitled to 22 S/vs Suresh Pahalwan & Ors be acquitted. Reliance is placed upon the authorities which are discussed below along with the other authorities relevant to the point in question.
I find great force in the above arguments of learned counsel for the accused Lekh Raj. The question arises if a witness does not make any allegations against an accused in his initial statement recorded by the investigating officer but after some days gives the supplementary statement improving upon his earlier statements to implicate the accused or the witnesses though available are not examined by investigating officer or do not give any statement to the police soon after the incident and their statements are recorded after some days, how much value should be given to such supplementary statements or later made statements? The answer lies in the following case law:
In Kehar Singh and ors. Vs. The State (Delhi Admn.) AIR 1988 SC 1883, the Apex Court has observed as follows:
" 70. It could not be doubted that the two versions given out by this witness are not such which could easily be reconciled. In fact in his first version there is nothing against Balbir Singh. In this second statement he has tried to introduce things against him. This apparently is a clear improvement. It is wellsettled that even delay is said to be dangerous and if a person who is an important witness does not open his mouth for a long time his evidence is always looked with suspicion but here we have a witness who even after 25 days gave his first statement and said nothing against the present
23 S/vs Suresh Pahalwan & Ors accused and then even waited for one more month and then he suddenly chose to come out with the allegations against this accused. In our opinion, therefore, such a witness could not be relied upon and even the High Court felt that it would not be safe to rely on the testimony of such a witness alone."
In Babu Singh & Ors. Vs. State of MP III (1997) CCR 182 (MP), the Madhya Pradesh High Court observed as follows:
" 14. ... ... ... ... ... All this indicates that the story about the demand of dowry and harassment as also the incident of beating has been subsequently introduced as an after-thought, otherwise there was no reason why the parents of the deceased would not unfold the same at the very first opportunity, especially when V.C. Verma, S.D.O. (Police) (PW 7), who conducted investigation, has admitted that both were present. It is, therefore, difficult to hold on the basis of such shaky evidence that any of the appellants had abetted the commission of suicide by the de- ceased........."
In Ramesh Bhandari Vs. Charan Dass Puri and others 50 (1993) DLT 81, it was observed by the Hon'ble Delhi High Court:
" 3. ... ... ... ... ... It is a case in which apparently earlier statements, although not strictly under Section 161 of the Code do not inculpate the respondent whereas the later statements made after 6-7 days to inculpate them. Even if the statements made at the time of inquest are strictly not in investigation, it is not possible also to ignore them since they are quite detailed and in any case admittedly are in the nature of previous statements of the closest relations of the deceased............" Therefore, the later statements
24 S/vs Suresh Pahalwan & Ors were found to be suspicious."
In Balakrushna Swain Vs. The State of Orissa 1971 CRI LJ 670 S. C. relied upon by learned counsel for the accused Lekh Raj, the following observations were made by Hon'ble Supreme Court:
" '' 6. In view of all these incongruities we think there is justification in the comment of learned Advocate for the accused that the delayed examination of P.W.5 by P.W.19 would give an opportunity to P.W.5 to concoct a different version that what actually took place.
8. These contradictions ordinarily would by themselves not have much signifance but where as in this case the witness for no justifiable reasons was not examined for nearly 10 days and he is found to he telling falsehoods on material aspects of the case it becomes difficult to place any reliance on such testimony particulary when he tried to conform to the evidence of P.W.1 in the Sessions Court that the first blow was given by a lathi on the waist and the second by a Katuri on the head.'' In Husna and others Vs. State of Punjab 1996 SCC (Cri) 421 also relied upon by learned counsel for the accused Lekh Raj, the following observations were made:
'' 6. As already noticed, the FIR the names of both the appellants were found missing. They were only named in the supplementary statements of PW1 recorded during the investigation and in our opinion
25 S/vs Suresh Pahalwan & Ors that statement which was recorded during the investigation was hit by Section 162 Cr. P.C and the trial court could not have relied upon the same as a part of the FIR.'' In Maruti Rama Naik Vs. State of Maharashtra 2003 CRI LJ 4326 S. C., relied upon by learned counsel for the accused Lekh Raj, the following observations were made:
'' 6. ......PW3 is an injured witness, we find it difficult to place reliance on his evidence not only because of the omissions mentioned hereinabove but also because of the fact that his statement was recorded a day later when the investigating officer had ample opportunity to record the said statement on the day of the incident itself. The explanation given in regard to this unwarranted delay is that this witness was injured and had to be taken to Bombay and brought back to Panvel for treatment. Taking into account the nature of injuries suffered by this witness and the opportunity investigating officer had to record his statement, we think this explanation given by the prosecution is not convincing. Bearing in mind the fact that even according to this witness. Large number of people attacked the deceased and his omission to state the names of thse appellants as the assailants in his previous statement, we think it not safe to place reliance on the evidence of PW3 to find the appellants guilty of the offences charged without there being any material corroboration from other independent acceptable source. That is even applying the test laid down by this Court in the case of Masalti Etc. V. State of UP (AIR 1965 SC 202) which was followed by the High Court in its judgment.''
26 S/vs Suresh Pahalwan & Ors In Viswanath and another Vs. State of Madhya Pradesh 2005 CRI LJ 1913 MP also relied upon by learned counsel for the accused Lekh Raj it was observed as follows:
'' Investigation officer must recod the statement promptly in order to inspire confidence in such statements. As unexplained delay in examining a crucial witness would render the witnesses unreliable. Where the staements of relatives were recorded after long delay and no explanation of delay were offered, the evidence of witnesses cannot be relied upon where only general allegations of demand for dowry were made against the husband and other family members and there was no clear and cogent evidence involving them in demand for dowry.'' In Ganesh Bhavan Patel and another Vs. State of Maharashtra AIR 1979 SC 135 of the Hon Supreme Court observed as follows:
'' 15. As noted by the Trial Court, one unusual feature which projects its shadow on the evidence of P. Ws. Welji, Pramila and Kuvarbai and casts a serious doubt about their being eye-witnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under S. 161 Cr. P.C were recorded on the following day. Welji (P.W.3) was examined at 8 a.m, Pramila at 9.15 or 9.30 a.m and Kuvarbai at 1 p.m. Delay of a few hours, simplicites, in recording the statements of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the
27 S/vs Suresh Pahalwan & Ors investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. A catena of circumstances which lend such significane to this delay, exists in the instant case" .
It was also observed as follows:
" 18. In this connection, the second circumstance, which enhances the potentiality of this delay as a factor undermining the prosecution case, is the order of priority or sequence in which the investigating officer recorded the statements of witnesses. Normally, in a case where the commission of crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses. Here, the natural order of priorities seems to have been reversed."
It was also observed as follows:
29. Thus considered in the light of the surrounding circumstances, this inordinate delay in registration of the 'F.I.R' and further delay in recording the statements of the material witnesses casts a cloud of suspicion on the credibility of the entire wrap and woof of the prosecution story'' The above case law shows that the supplementary statement of a witness recorded later on by the investigating officer or the delay in recording the statement of a witness under section 161 CrPC has been looked upon by the higher courts with suspicion and such statements were not found worthy of the credit. In the backdrop of this legal position it would now be appropriate to mention a few facts from the prosecution case with regard to involvement of the
28 S/vs Suresh Pahalwan & Ors accused Lekh Raj and the conspiracy of murder alleged against him and other accused persons .
It is not disputed that the statement under section 161 CrPC of PW5 Shri Rajpal Gupta, the father of the deceased and the supplementary statement of PW8 Shri Bhanu Gupta, the son of the deceased were recorded on 06.06.03 while the murdered in question was committed on 31.05.03. In the cross- examination PW5 Shri Rajpal Gupta has stated that he did not make any report/complaint against any of the accused to any authority prior to 31.05.03. The question is when as per his statement made in the examination in chief that he heard accused Lekh Raj asking the other the accused persons to eliminate Surender Gupta why he did not report the matter with the police? Further this witness in the cross-examination has stated that he stayed at his residence from 31.05.03 to 06.06.03 and was available to all including the police. He also stated in the cross-examination that the police people might have come to his house in between 31.05.03 and 06.06.03 but he was not much aware as the entire atmosphere was sad and sorrowful. Similarly PW8 Shri Bhanu Gupta in the examination in chief corroborated the statement of PW5 Shri Rajpal Gupta made by him in the examination in chief. He has stated in the cross-examination that his statement was recorded by the police on 06.06.03 in the police station where he had gone with his grandfather and PW Viresh. He also stated in the 29 S/vs Suresh Pahalwan & Ors cross-examination that he was available in his house from 31.05.03 to 06.06.03. He also stated in the cross-examination that in between 01.06.03 and 06.06.03 the police did not call him, however, police continued visiting the house from 31.05.03 to 06.06.03. Therefore, it is clear from the cross-examination of these two witnesses that they were available from 31.05.03 to 06.06.03 in their respective home but till 05.06.03 they did not make any statement about the alleged conspiracy implicating accused Lekh Raj. What is more PW 25 Inspector Narender Pal Singh who was SHO of the Police Station concerned and initially investigated the case has stated in the cross-examination on behalf of the accused Lekh Raj, that the investigation of this case had remained with him till 9- 10.06.03. He also stated in the cross-examination that name of accused Lekh Raj did not find mention in the disclosure statement of the accused persons arrested by him. He did not record statements of Rajpal Gupta and Bhanu Gupta. On 06.06.03 he was investigating officer of the case. He also stated that one application was given to him by a relative of deceased which was assigned by him to SI Anil. He did not know if the said application was in the judicial file. At that stage learned Additional Public Prosecutor stated that there was no such application on the judicial file. There is an application present in the judicial file but it is not got proved by prosecution from PW Rajpal or any other witness. He also stated in the cross-examination that the brother and father and son of the deceased had not disclosed if the deceased had any enmity with some one.
30 S/vs Suresh Pahalwan & Ors They did not disclose that the deceased was having enmity with accused Lekh Raj. He also stated that the above said witnesses did not disclose anything regarding involvement of accused Lekh Raj in the commission of the offence.
PW 13 Shri Viresh Kumar is a witness who has stated that at about 11.15 a.m. to 11.30 a.m. he heard accused Lekh Raj telling his son Sushil that the work should be done intelligently, and, he should not escape ( Kaam Hoshiyari Se Karna-Bachne Na Paaye ). But this witness is not a reliable witness, as before giving his statement in the examination in chief he gave his address as C 498 Kotla Mubrak Pur, New Delhi but in the cross-examination he stated that he was residing at Mahipal Pur. He could not tell the address exactly by stating that it was not with him. He also did not know the name of the owner of the house. But in the initial part of the cross-examination he stated that he was residing in house No. 498 Kotla Mubrak Pur since the last 8-9 years. He could not give the name of owner of house No. C 498. When he was living at the time of his examination in the court in Mahipalpur and not in Kotla Mubarak Pur, why he stated that he went to the Kotla Mubarak Pur house day before yesterday at about 10/11 a.m. and found the summons in the letterbox which didn't contain any lock? He does not seem to be a reliable witness, more so, when he is unable to give the name of the landlords of the houses where he was a joint tenant. Why before recording his examination in chief he gave the address of 31 S/vs Suresh Pahalwan & Ors Kotla Mubarak Pur which address was again affirmed by him in the initial cross- examination while in the subsequent cross-examination he stated that he was living at Mahipal Pur. Therefore, no reliance can be placed upon his statement which is also recorded after six days of incident.
From the above evidence on record it is clear that PW 25 Inspector Narender Pal Singh who was investigating the matter up to 9-10.06.03 was not informed by PW5 or PW8 or PW 13 about involvement of accused Lekh Raj in the crime as conspirator. Therefore, the statements under section 161 CrPC of these witnesses recorded on 06.06.03 are doubtful so also the story of conspiracy made in these statements against accused Lekh Raj and other accused persons. Even the accused Lekh Raj is not named in the FIR, nor in the disclosure statement of the other accused persons which were recorded on 01.06.03. The disclosure statement of accused Sushil is Ex. PW14/G, disclosure statement of accused Dalip is Ex. PW14/K, disclosure statement of accused Suresh is Ex. PW14/M and these disclosure statements are silent about accused Lekh Raj. Therefore, I find force in the argument of learned counsel for the accused Lekh Raj that the twist was given to the prosecution story by introducing the name of accused Lekh Raj during investigation in the police record on 06.06.03.
32 S/vs Suresh Pahalwan & Ors In Sikander Ali's case (supra) relied on behalf of the State the explanation of the investigating officer that he was unable to question the prosecution witness as he himself was very much involved in the duties relating to the upkeep of law and order was found trustworthy, therefore, the Hon'ble Supreme Court held that failure of the police officer to examine the prosecution witness in question for 24 days should not have been used to drop his evidence out. But in the present case the witnesses in question were present right from the date of incident at their respective home, still the statement implicating accused Lekh Raj or alleged conspiracy were not recorded by the investigating officer. What is more PW 25 the investigating SHO has specifically admitted in the cross-examination that the witnesses did not disclose anything regarding involvement of accused Lekh Raj in the commission of the offence. He also stated that the other accused persons in their disclosure statements did not disclose about accused Lekh Raj. Therefore, Sikander Ali's case (supra) does not help the prosecution being distinguishable on facts. Hence, I am of the considered view that the accused Lekh Raj is at least entitled to benefit of doubt in this case. The theory of conspiracy between accused Lekh Raj and other accused persons is not worth believing.
The prosecution case with regard to the other three accused persons is that on 31.03.03 when the deceased came out of his house to go to 33 S/vs Suresh Pahalwan & Ors somewhere in his Honda City car the accused Sushil fired two shots at him and accused Suresh hit him with a knife and gave multiple blows while accused Dalip caught hold of the deceased. Thereafter, the three accused persons were arrested by police at NOIDA in presence of PW 14 Shri Subodh Kumar, PW 18 Shri Vinod Gupta, the younger brother of the deceased. The accused persons gave disclosure statements. The disclosure statement of enclosed Sushil Pahalwan Ex PW 14/G, disclosure statement of accused Dalip Ex PW 14/K and the disclosure statement of accused Suresh Ex PW 14/M were recorded. Thereafter, the accused Sushil Pahalwan got recovered country made revolver Ex P1 sketch of which is Ex PW 14/H from underneath a bush in Chick House Walla Park near INA Complex. The accused Suresh got recovered the knife sketch of which is Ex PW 24/C from under the Ganda Nala Pul Pilanji which upon search was found in the sand there.
In the backdrop of the above prosecution case the contention on behalf of the prosecution is that even if it is assumed that the recovery of the weapon of offence was made from open space accessible to the public the same can be used as evidence under Section 27 of the Evidence Act. Reliance is placed upon the authority State of Himachal Pradesh Vs. Jeet Singh 1999 (1) CC Cases (S. C.) 104. It is argued that if there is an element of concealment and it appears that it was within the special knowledge of the person accused, such 34 S/vs Suresh Pahalwan & Ors recovery can always be taken into consideration. Reliance is placed upon the authority Ram Chander Mandal Vs. State 1996(3) CC Cases 506 (HC) Delhi.
The argument on behalf of the three accused persons is that the evidence of a recovery of weapon of offence is a week evidence. If the discovered articles are found lying in open and are accessible to the public then accused cannot be said to be in possession of the discovered articles nor such a discovery of fact or recovery of article has any value to the prosecution case. Reliance is placed upon the authorities, Mani Vs. State of Tamil Nadu Cri.L.J 2008 (SC) 1046, Dalip Kumar Vs. State of Delhi 2004 IV AD (Cri) DHC 53 (DB), Arun Kumar Vs. State JCC 1996 (Del) (DB) 327, Bakshish Singh Vs. The State of Punjab AIR 1971 SC 2016, Salim Akhtar @ Mota Vs. State of U.P SCC (Cri) 2003 1149, Chander Pal Vs. State 1998 (2) JCC (Del) (DB) 207.
Section 25 of the Indian Evidence Act, 1872 bars the provisions of confession made to the police officer by an accused and Section 26 of the same Act bars the proving of the confession made by any person while in custody of the police officer. Section 27 is an exception to Section 26. Though the entire statement made by any person is inadmissible in evidence being hit by Sections 25 and 26 of The Indian Evidence Act, 1872, but the part of the statement which led to the discovery of articles is clearly admissible under Section 27 of the same 35 S/vs Suresh Pahalwan & Ors Act. (See Dhananjoy Chatterjee Vs. State of West Bengal (1994) 2 SCC
220). Only that portion of the information is provable which was the immediate or proximate cause of the discovery of the fact. Anything, which is not connected with the fact as its cause, or is connected with it, not as its immediate or direct cause, but as its remote cause, does not come within the ambit of the section, and should be excluded. (See Sukhan Vs. Emperor the AIR 1929 Lah. 344 F. B.). Under Section 27 of the Act, only that part of the statement of the accused made to the police could be admissible in evidence, which had led to the discovery of the particular fact. (See: Vinod Kumar Vaish V. State 1992 JCC 297 (Del); Sukhvinder Singh V State of Punjab (1995) 1 East Cr Cas 1, 1994 UP Cr R 548 (SC), 1994 All Cr Cas 552, (1994) 2 SCJ 394, (1994) 2 East LJ 130, 1994 SCC (Cr) 1376; Laldeep Bhagat V State of Bihar (1995) 1 BLJ 395; Arshad V State of Karnataka (1994) Cr LR (SC) 274) In Mani's case (supra) relied on behalf of the accused persons the discovery of the relevant articles was made from open ground after more than 10 days of the incident and was found about 300 feet away from the dead body. In the present case the three accused persons Dalip, Suresh and Sushil were arrested on 02.06.03 and made disclosure statements. The country made pistol was also recovered on 02.06.03. The knife was recovered on 04.06.03 as per supplementary statement dated 04.06.03 Ex PW 24/A of accused Suresh.
36 S/vs Suresh Pahalwan & Ors Therefore, it is not a case in which the recovery of the articles as per disclosure statement of the accused persons was made after 10 days or the recovered articles were about 300 feet of the place of incident. Mani's case (supra) is, therefore, distinguishable on facts and so inapplicable, here.
In Dalip Kumar's case (supra) the Division Bench of our Hon'ble High Court was dealing with a case in which the recovery of the knife was made from an open place accessible to all and sundry and was therefore not treated as recovery of the weapon at the instance of accused. In Arun Kumar's case (supra) Division Bench of our Hon'ble High Court did not give weight to the recoveries which were not effected from any hidden place as per disclosure statement.
On behalf of the prosecution the reliance is placed upon State of Himachal Pradesh Vs. Jeet Singh 1999 (1) CC Cases (S. C.) 104 the following observations were made:
'' 25. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is ''open or accessible to others''. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept
37 S/vs Suresh Pahalwan & Ors hidden in a public office, the article would remain out of the visibility of others in normal circumstances.
Until such article is disintered its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.'' Reliance is next placed on behalf of State Ram Chander Mandal Vs. State 1996 (3) CC Cases 506 Delhi wherein Division Bench of our Hon High Court has made the following observations:
'' 12. ........The place of recovery of the object may be such where the public may have access yet if there is an element of concealment and it appears that it was within the special knowledge of the person at whose instance the recovery was effected, such recovery can always be taken into consideration. In the present case, the place of concealment, i.e, the bush under the Azadpur railway bridge may be accessible to the public but the fact that the object was taken out by the appellant from the bushes cannot be lost sight of. This shows that the appellant alone knew where the bottle was concealed. This fact was within his exclusive knowledge. He alone could have known about the place where the plastic bottle containing Sulphuric acid was hidden. This recovery at the instance of the appellant is a significant fact pointing to the guilt of the appellant.'......' In the present case the country made revolver was got recovered by the accused Sushil from Chick House Walla Park near INA Complex near
38 S/vs Suresh Pahalwan & Ors Safdarjung Terminal from the bush and the knife was got recovered by the accused Suresh from under the Pilanji Pul lying in the sand which was allegedly thrown by the accused while running away above the said Pilanji Pul. Therefore, though the park in question from which the country made revolver was recovered was accessible to the public but the revolver which was got recovered by the accused from underneath a bush would certainly be treated as concealed under the bush and cannot be accessible to the public like a thoroughfare in the light of the Jeet Singh's case (supra) relied upon by learned Additional Public Prosecutor assisted by learned counsel for the complainant. Similarly, in the absence of any evidence that it was a thoroughfare and the generally public was coming and going under the Pilanji Pul, it cannot be said that recovery of the knife at the instance of accused concerned has got no value in this case. In the light of Jeet Singh's case (supra) relied on behalf of the prosecution the Dalip Kumar's case (supra) and Arun Kumar's case (supra) and Chander Paul' s case (supra) relied upon on behalf of the three accused persons do not help them. Alternatively, assuming there was a thoroughfare underneath the Pilanji Pul still the disclosure statement of accused regarding recovery of the knife from under the Pilanji Pul at the instance of the accused at least shows that the accused had the knowledge that the knife in question was under Pilanji Pul. In that eventuality the evidence of the discovery of fact of the presence of knife under Pilanji Pul becomes important ,since the opinion of Department of Forensics Medicine and 39 S/vs Suresh Pahalwan & Ors Texicology AIIMS, New Delhi Ex PW 16/B is that after examining the post- mortem report in question and the weapon, i.e., the knife in question the injuries on the victim could have been produced by this knife. Therefore, the discovery of the knife in question at the instance of the accused from under the Pilanji Pul assumes importance.
In Bakshish Singh's case (supra) of the Hon'ble Supreme Court was dealing with a case in which there was the recovery of dead body by police on the information given by the accused. In that case the recovery of weapon of offence was not a point in issue. Therefore , Bakshish Singh's case (supra) is distinguishable on facts and does not help the accused persons. In Salim Akhtar's case (supra) relied on behalf of the accused persons it was held that if the recovery was made from an open place which was accessible to all and everyone then it was not possible to hold that the accused was in possession of the articles alleged to have been recovered from his possession. The question whether recovery though made from a public place accessible to general public but from a Bush where it was concealed, on the basis of disclosure statement of the accused and with the help of the accused was not examined in Salim Akhtar's case (supra) so this authority does not have any bearing so far as the country made revolver got record by accused Sushil. As regards the recovery of knife, it is not established on record that the Pilanj Pul under which the knife was 40 S/vs Suresh Pahalwan & Ors recovered in the sand was a thoroughfare or a passage being used by the public. Therefore, Salim Akhtar 's case (supra) also does not help the accused persons.
The next argument on behalf of the three accused persons Suresh, Sushil and Dalip is that there is unexplained delay in recording the FIR and also delay in sending the copy of FIR to the concerned Magistrate which leads to the violation of section 157 Cr. P.C. and there is also delay in the inquest proceedings, so the prosecution case is doubtful and presumption of manipulation in the FIR, arises. Reliance is placed upon the authorities (1) Mahabir and others Vs State 1979 Cri. L.J. 1159 Delhi D. B. (2) Ganesh Vs State of Maharashtra AIR 1979 S.C. 135 F.B. and (3) Ramji and anothers Vs State of Maharashtra AIR 1983 SC 810.
The contention on behalf of prosecution is that there is no delay in recording the FIR. It is argued that the purpose of promptly dispatching special report to concerned Magistrate is to rule out any chance of padding or improvements in evidence at the hands of police. From the statement of PW1 Ashok Kumar and PW14 Subodh Kumar, eye witness it is clear that there is no manipulation in the FIR of the prosecution case, so even if there is small delay in dispatching the special report to concerned Magistrate it can be ignored. Reliance is placed upon the authority (1) Ram Sanjiwan Singh & Ors Vs State 41 S/vs Suresh Pahalwan & Ors of Bihar 1996( 2) CCC 135 SC and (2) State Vs Ajay Kumar Singh 1998(1) CCC 95 Delhi (DB).
I have carefully heard the above respective arguments of the three accused persons Suresh Pahalwan, Sushil Chowdhary and Dalip Kumar and the prosecution on the question of delay in recording the FIR, delay in sending the FIR to the concerned Magistrate and delay in inquest proceedings. At the very outset I would like to say that there is no delay in recording the FIR. The incident is of about 12 noon on 31.05.03. Thereafter the victim was taken from the spot to the AIIMS hospital for his treatment from where the matter was reported to the concerned Police Station and the Sub Inspector Sh Anil Kumar was sent to the hospital from the Police Station who recorded statement under section 161 CrPC of PW1 Ashok Kumar and made his endorsement on it and sent the rukka Ex PW5/A at 1.30 P.M. to the Police Station for registration of FIR, which information was received in Police Station at 1.55 p.m. as per the FIR Ex PW9/B. Keeping in view and adjusting the time taken in taking the victim to hospital from the spot and time taken by Sub Inspector in reaching hospital from Police Station then recording statement of PW1 Sh Ashok Kumar , it can not be said that there is any delay in recording the FIR in this case which was recorded at 1.50 pm on 31.05.03 when Rukka Ex PW20/A was sent at 1.30 pm on 31.05.03. There is also no evidence to show inordinate delay in inquest proceedings. The victim 42 S/vs Suresh Pahalwan & Ors died on 31.05.03 at 6.05 pm and the death report is Ex PW8/A and the dead body was identified on 01.06.03 by son of the deceased and by brother of deceased vide memo Ex PW8/A and after the postmortem of the deceased the dead body was received by son of the deceased vide memo Ex PW20/D on 01.06.03. The request for conducting postmortem report dt 01.06.03 of Sub Inspector Anil Kumar is Ex PW21/E, therefore, it can not be said that there was inordinate delay in inquest proceedings.
As regards the sending the copy of FIR to the concerned Magistrate, the said copy of FIR was produced before learned Metropolitan Magistrate on 02.06.03 and is placed on record with the endorsement of learned Metropolitan Magistrate '' Seen '' made on 2.6.03. The occurrence took place on Saturday i.e on 31.05.03 and the 01.06.03 was Sunday i.e. holiday for the court and on the next working day, ie, 02.06.03 the copy of FIR was produced before learned Metropolitan Magistrate. Although it would have been better and was desirable that copy of FIR should have been sent at the residence of the learned Metropolitan Magistrate on 31.05.03 itself to properly and promptly comply the provision of section 157 Cr. P.C. if it was not sent to his court on 31.5.03 itself. But in the given facts and circumstances of the case, when it is not clear from the record that copy of FIR though produced before learned Metropolitan Magistrate on 02.06.03 was actually received in his court before closing hours of 43 S/vs Suresh Pahalwan & Ors the court on 31.05.03 or on 02.06.03, the definite adverse impact on account of delay in sending the copy of FIR to the concerned Metropolitan Magistrate cannot be foisted on the prosecution. In Ajay Kumar Singh's case ( supra) relied on behalf of the prosecution it was held that the purpose and object of promptly dispatching the special report to the concerned Magistrate is to obviate any chance of padding or improvements in the evidence at the hands of the police. When entire prosecution case unfolded in the statement of prosecution witness there was no reason that the police officers should try to withhold special report from concerned Magistrate or delay it. There is settled preposition of law the prosecution case can be thrown over board merely on account of lapse on the part of prosecution in sending the special report promptly to the concerned Magistrate or on account of its failure to prove this fact at the time of trial of the case.
In Mahabir Singh's case relied on behalf of three accused persons, it is held that the provision regarding sending the special report to the concerned Magistrate is directory in nature and is not mandatory. Taken singly, such a delay or failure may not be sufficient to lead to the conclusion that the investigation was tainted or unfair. But when considered in conjunction with other infirmities or discrepancies, it may assume great importance and may cause suspicion about the purported time of its recording or even about its contents.
44 S/vs Suresh Pahalwan & Ors Ganesh Bhavan's case( supra ) is more relevant to the case of the accused Lekh Raj than to other three accused persons. It deals with delay in recording statement of the witnesses. This authority also deals in delay in recording FIR but is not applicable to the present case in the light of the before mentioned discussion that there was no delay in recording the FIR in this case. Similarly Ramji Surjaya's case( supra ) relied on behalf of the three accused persons which speaks about inordinate and unexplained delay in lodging FIR leads to the suspicion in the prosecution case, is also not applicable to the present case. The FIR in the present case can not be said to be recorded after inordinate delay or after unexplained delay.
The learned counsel for three accused persons Sushil, Suresh and Dalip has argued that there are only two eye witnesses in this case, i.e, PW1 Sh Ashok Kumar Chowdhary and DW1 Sh Rajkumar and presence of these two eye witnesses is not disputed. It is argued that third witness PW14 Sh Subodh Kumar is not an eye witness and is not reliable. It is argued that conduct of PW14 Sh Subodh Kumar is unnatural as he was closely associated with deceased Surinder Gupta as he was employed with him but he did not make any hue and cry at the spot. He did not render any assistance to take the injured, his master, to the hospital. He did not even bother to give any information to the police and 45 S/vs Suresh Pahalwan & Ors though he has stated that he put the deceased in the car to go to hospital but not a single drop of blood came to the clothes of PW14 Sh Subodh Kumar as per his admission in the cross examination. Name of this witness is not in the FIR or in inquest proceedings or in the site plan prepared by the investigating officer at the spot. So, PW14 Sh Subodh Kumar is not an eye witness and is deliberately introduced in this case to strengthen prosecution case. It is also argued that this witness has admitted in the cross examination that he was earlier involved in criminal cases so his testimony should be discarded. Reliance is placed upon the authority Rajinder Parshad and another Vs State 41 (1990) DLT(SN)32 where in it was held that where the behaviour of the witness is not in keeping with the normal human conduct, his testimony as eye witness would be doubtful. Reliance is next placed upon the authority Surjit Singh and another Vs State of Punjab AIR 1994 SC 110 wherein it was held that:
''The conduct of the witness is highly unnatural. When he has seen one of the appellants inflicting injuries one would expect him to raise an alarm or at least inform the kith and kin of the deceased so that they can go for the rescue of the victim,which he did not do. From the record, it does not appear that at least he was examined during the inquest. We do not know when his statement was recorded during the course of the next day. On his own showing, he was involved earlier in some cases. In one case, he was stabbed by the deceased and in another case he himself was the accused for molestation of a woman. Therefore, he is of a questionable character. However, his conduct is
46 S/vs Suresh Pahalwan & Ors highly unnatural. Though we can not call him entirely a false witness but in the absence of any other corroborating evidence we thing it is highly unsafe to accept his eivdence and then convict both the appellants. In this regard, the prosecution could have examined the rickshaw puller in which he was travelling, which they have not done. For all these reasons we find it difficult to place any reliance on this witness.'' Reliance is next placed upon the authority Tej Bhan Vs State 1982 CCC 509( Delhi) wherein following observations were made:
" It is also admitted in cross examination that the house of Amar Nath, brother of the deceased, did not fall on his way to his own house. He also admits that after the chase when he came back to the spot he did not even bother to go near Bharat Bhushan deceased who had been stabbed allegedly in his presence. His normal behaviour would have been to at least render some assistance to the injured, take him to the hospital or send for a doctor, apart from going to his house to inform his family members who were living nearby"
Reliance is next placed upon the authority Din Dayal Vs Rajkumar alias Raju 1999 Cri. L.J. 467 wherein it was held that :
'' What is contended by the learned counsel for the appellant is that the High Court should not have discarded the evidence of these four witnesses particularly when trial court after carefully scrutinising it held that it was reliable and trustworthy. We find that the High Court has given good reasons for taking a different view. It has pointed the improbability of the version given
47 S/vs Suresh Pahalwan & Ors by them. The witnesses had not accompanied the deceased to the hospital nor had taken any trouble of going and informing the police about what had happened. After seeing the incidence they quietly went back to their home. It can not be said that the view taken by the High Court that the conduct of the witnesses was not natural is unreasonable. They were not merely eye witnesses. They were closely connected with the deceased. The High Court was, therefore, justified in not placing any reliance upon their evidence."
" Witness Din Dayal had accompanied the deceased to the hospital but after reaching there he did not disclose the name of the accused to the Police Constable who was on duty even though he disclosed other facts regarding the incident. This circumstance has been relied upon by the High Court together with some other reasons for doubting truthfulness of the evidence of this witness. The High Court has also referred to the improvements made by Din Dayal and those improvements clearly indicate that they were deliberately made with a view to make the presence of other eye witness acceptable. Having gone through the evidence we find that the view taken by the High Court is not unreasonable and no interference is called for by this Court."
On behalf of the prosecution, it is argued that the witness has gone from the spot to inform the father of the deceased about the incident and thereafter has returned to the spot and informed the investigating officer that he has witnessed the crime, so his conduct was natural. It is argued that merely because a person was involved in criminal cases is no ground to discard his testimony. Reliance is placed upon the authority Ram Sanjiwan Singh and 48 S/vs Suresh Pahalwan & Ors Ors. Vs State of Bihar 1996 (2) CCC 135 (SC) wherein following observations were made:
'' " It was next contended that these alleged eye witnesses had bad antecedents. That might be so. However, if their presence on the spot was natural and they could witness what happened on spot it could not be said that they were necessarily deposing falsely about what they saw on spot" '' Reliance is further placed upon the authority State vs Ajay Kumar Singh and others 1998 (1) CCC 95 Del DB wherein following observations were made:
" Law is that bad antecedents alone do not make a witness unreliable: Dalbir Singh Vs. State of Punjab. 1987 SCC (Cri) 519 Rup Singh Vs. State of Punjab, 1991 SCC (Cri) 548."
I have heard the respective arguments from both side and have gone through the authorities cited.
In the present case the witness PW14 Sh Subodh Kumar has stated to have witnessed the accused persons attacking the deceased Surinder Gupta and is witness of main incident as per prosecution case. When PW1 Sh. Ashok Kumar Chowdhary and one Rajkumar removed deceased Surinder Gupta to AIIMS hospital in deceased Surinder Gupta's vehicle which was standing parked 49 S/vs Suresh Pahalwan & Ors at the spot, there was also need for informing near and dears of the deceased Surinder Gupta about the incident. PW14 Sh Subodh Kumar has stated in the cross examination that the deceased was taken to AIIMS hospital. He did not go to AIIMS nor he did request him to take him to the hospital. He volunteered he had just told them that he would go and inform his family. He went to the Old house of the deceased in Kotla Mubarak Pur on foot where he reached in about 15-20 minutes. He volunteered in between he had also stopped at the shop of Bhanu Garments belonging to family of the deceased where he saw a crowd and they had already received information about the incident. In the further cross examination he stated that he returned to the spot and met the investigating officer and SHO and informed them that he was eye witness. In the further cross examination he stated that he left the spot soon after his statement was complete and from the spot he went to the hospital by bus and remained in the hospital till 5 pm and then went to his house, after the dead body had been sent to mortuary. In the cross examination on behalf of accused Lekh Raj he has stated that it took him about 7-8 minutes in reaching Bhanu Garments where he met the staff only. He did not go to the house of the father of the deceased by running and had gone there as per his gait as per the need of the time. He did not try to make telephone call to the police either from office of deceased or from some public booth or from the house of father of the deceased. In the further cross examination he stated that he had seen Ashok Chowdhary in the hospital 50 S/vs Suresh Pahalwan & Ors but he did not talk with him there.
From the totality of the evidence, though it appears that this witness has not made hue and cry at the spot and he did not make telephone call to the police but he went from the spot after the incident to the house of father of the deceased to inform him and close relatives of victim about the incident and in between has also visited Bhanu Garments belonging to the family of the deceased to inform about the incident. (This conduct of PW14 is justified as per Surjit Singh's case (supra) relied upon on behalf of accused persons). Thereafter he came to the spot and gave statement to the investigating officer who was there. Then he went to the hospital to know the condition of the deceased. In the given facts and circumstances when the deceased was taken to the hospital in his car by PW1 Sh Ashok Kumar Chowdhary and another person Rajkumar, there was also need to inform the family members of the deceased about the incident. So, the conduct of PW14 Sh Subodh Kumar can not be said to be unnatural in the given facts and circumstances of the case. More so when he returned to the spot and gave statement under section 161 Cr. P.C. to the investigating officer and then went to the hospital where the deceased was admitted and after the dead body was sent to mortuary he returned to his house. Therefore, the facts of the present case are distinguishable with the facts of the Tej Bhan's case(supra) and Din Dayal's case (supra) relied on behalf of accused 51 S/vs Suresh Pahalwan & Ors persons Surjit Singh's case justifies the conduct of PW14 Subodh Kumar going to house of father of victim after the incident to inform him about the incident.
As regards questionable antecedents of PW14 Sh Subodh Kumar although he admitted in the cross examination that 2-3 criminal cases were registered against him in Farrukabad which were also false cases including a murder case wherein he was acquitted. He also stated that there was one case of dacoity wherein he was also acquitted and the third case was a case under section 307 IPC wherein he was acquitted as all these cases were false. He also stated that there might be some other criminal cases pending against him there for the offence under section 506 IPC. He also stated that no case was pending against him at that time and he last faced trial till 1991. He was not involved in any case of 2002. He was not aware whether any case was decided against him on 20.12.2002 by Farrukabad Court and volunteered he had been admitted to bail and thereafter he did not appear personally and his Advocate kept on defending him and had informed him that the case has ended. He also stated that he might have been confined in Jail for a total period of one and a half years. He has not visited Farrukabad after 1991.
The above statements of PW14 Sh Subodh Kumar made in the cross examination show that he was involved in criminal cases. But he has also 52 S/vs Suresh Pahalwan & Ors stated that he was acquitted in these cases There is no admission made by him that he was convicted in any cases. There is no evidence led by the accused persons in their defence that this witness was convicted in any of the criminal cases. Therefore, in the light of the criminal cases faced by PW14 Sh Subodh Kumar at Farrukabad, his testimony can not be discarded if it is otherwise reliable and his presence at the spot was also reliable in the light of Ram Sanjiwan Singh's case (supra ) and Ajay Kumar Singh's case (supra) relied on behalf of prosecution.
The next contention on behalf of the three accused persons Suresh Pahalwan, Dalip and Sushil Pahalwan is that the public witnesses produced by the prosecution are interested witnesses who are interested in the success of the prosecution and conviction of the accused so their statements which on account of weaknesses in the statements and exaggerations are not truthful, should not be believed. It is argued that the statement of PW 14 Subodh Kumar and PW 18 Vinod Gupta, younger brother of the deceased should not be believed with regard to arrest of the accused persons, the disclosure statements and other facts deposed by these witnesses in their statements. Reliance is placed upon the following authorities : Satyanarain Vs. The State of Madhya Pradesh AIR 1972 SC 1309, Biri Singh Vs. The State of U.P & Ors JT 1992 (2) SC 229, Ram Ashrit Ram and others Vs. State of Bihar Crimes 1983 (1) 53 S/vs Suresh Pahalwan & Ors SC 130, Shaikh Nabab Shaikh Babu Musalman and others Vs. State of Maharashtra 1993 Cri. L.J SC 43, Sevi and another Vs. State of Tamil Nadu and another AIR 1981 SC 1230 On behalf of the prosecution the argument is that the settled law is that the testimony of a witness can not be rejected merely on the ground that the witness is an interested witness. It is argued that the minor discrepancies in the statement of witnesses are immaterial. Reliance is placed upon the following authorities: Gopi Nath @Jhallar Vs. State of UP 2001 (2) Cases SC 264, State Vs. Ajay Kumar Singh and Ors 1998 (1) CC Cases Delhi High Court 95, Ambika Prasad & Anr Vs. State (Delhi Administration) 2000 (1) CC Cases SC 98, State of Govt. Of NCT of Delhi Vs Sunil & Anr 2001 (1) CC Cases (SC) 6, State Vs. Ajay Kumar Singh and Ors 1998 (1) CC Cases (DHC) 95 I have considered the above submissions and the authorities produced from both sides. In Satyanarain 's case (supra) relied on behalf of the three accused persons the prosecution examined partisan eyewitnesses. There were two parties or factions and the number of proceedings then crossed proceedings had taken place between them and other evidence produced was not worth corroboration so the accused persons were acquitted. In the present case there is no evidence that the victim party and the accused persons were 54 S/vs Suresh Pahalwan & Ors having cross cases and crossed proceedings against each other nor it can be said that the evidence produced by the prosecution is not convincing or is not sufficient to corroborate that with the interested witnesses, therefore, Satyanarayan's case (supra) being distinguishable on facts is inapplicable to the present case.
In Biri Singh's case (supra) the witnesses were interested witnesses and the omissions contradictions and exaggerations in their statements lead the Hon'ble Apex Courts to hold that it was not safe to rely on their evidence. But in the present case it cannot be said with regard to PW 14 Subodh Kumar PW 18 Vinod Gupta that the there are material omissions, contradictions or exaggerations in their statements so that it can be said that it is not safe to rely on the other evidence. Therefore, Biri Singh's case (supra) also does not help the three accused persons.
In Ram Ashrit Ram's case (supra) the material prosecution witnesses examined by the prosecution were interested witnesses. The evidence was intrinsically improbable and unreliable and there were many infirmities and contradictions in the evidence of prosecution witnesses to the witnesses were found unreliable and accused persons were acquitted. But in the present case I do not find the testimonies is of PW 18 Vinod Gupta or PW 14 Subodh Kumar 55 S/vs Suresh Pahalwan & Ors improbable or unreliable or contradictions or infirmities in their statements. Therefore, Ram Ashrit Ram's case (supra) also does not help the three accused persons Suresh Pahalwan, Dalip and Sushil. Further, Shaikh Nabab Shaikh Babu Musalman's case (supra) and Sevi's case (supra) relied upon on behalf of the three accused persons are also distinguishable on facts and so inapplicable to the present case.
The law with regard to the appreciation of evidence of the interested witnesses or relative witnesses of the victim is now well settled. There is no reason to discard the testimony of relative witness. His statement is as good as of other independent witness but the rider is that the testimony of a relative witness or the interested witness should be scrutinised cautiously. In a recent judgement of our Hon High Court reported as Rajesh @ Hunny's & Munny's Vs. State 2008 (4) JCC 2420 Delhi relying upon Lehna Vs. State of Haryana (2002) 3 SCC 76 the following observations were made:
'' 16. The main ground of challenge to the evidence of the three eye witnesses taken by the learned counsel for the appellants was that their evidence should not be accepted since they are all family members and so interested witnesses. There is no doubt that all these thee witnesses are family members but it is well settled that witnesses being close relatives of each other as well as the victim of the incident is no ground to disbelieve them. Relationship of the witnesses with the victim of an incident is not a factor to affect their credibility. Relatives of a victim of an incident are normally not
56 S/vs Suresh Pahalwan & Ors expected to leave the actual culprit and implicate an innocent person falsely. Before the evidence of relative witnesses is rejected on the ground of their being interested witnesses an accused is required to lay a foundation either in their cross-examination or by adducing some independent evidence to show that those witnesses had any motive to falsely implicate the accused. In fact, the Hon'ble Supreme Court in ''Lehna vs. State of Haryana'' (2002) 3 SCC 76 while rejecting similar contention raised on behalf of the convicted accused in respect of the testimony of relatives of the murdered person had even gone to the extent of laying down that even if there was some hostility between between the accused and the family members of the deceased who had deposed against the accused during the trial that would not be a ground to reject their testimony since it would be unbelievable that they would shield the actual culprit and falsely implicate an innocent person.'' In another recent case decided by Hon'ble Supreme Court reported as Rajesh Kumar Vs. State of H.P 2008 XI AD (S. C.) 1 it is held that there is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused. Therefore, in the light of the position of law with regard to interested and relative witnesses there is no reason to disbelieve the statement of PW 14 Subodh Kumar the ex-employee of deceased and PW 18 Vinod Gupta, the younger brother of the deceased. However, the testimonies of PW5 Rajpal Gupta the father of the deceased and PW8 Bhanu Gupta the son of the 57 S/vs Suresh Pahalwan & Ors deceased victim is not worth reliance with regard to involvement of accused Lekh Raj or the story of conspiracy between the accused persons as propounded by the prosecution mainly for the reason that these witnesses have not given their statements to the investigating officer with regard to alleged conspiracy and involvement of accused Lekh Raj soon after the murder of the victim. Further in Gopinath's case (supra), Ambika Prasad's case (supra) relied on behalf of the prosecution it was held that if independent witness does not cooperate with the investigating officer during investigation out of fear of the accused or otherwise the prosecution case should not suffer. Therefore, the fact that some of the witnesses produced by prosecution are hostile witnesses does not have any adverse effect on the prosecution case.
In the present case the murder of the victim is not only established by the prosecution by evidence of PW 14 Subodh Kumar which is amply corroborated by the medical evidence of PW 15 doctor Sanjeev Lalwani who proved MLC of the victim as Ex PW 15/A and the post-mortem report Ex PW 16/A. Further, the defence of the accused as disclosed by DW1 Raj Kumar shows that not only the murder of the victim Surinder Gupta is not disputed but the manner in which the murder was committed by three culprits and one of them attacked the victim with knife blows and one of the three assailants was holding him in his hand and the bullet short was also fired is the common story 58 S/vs Suresh Pahalwan & Ors prosecution and defence. By defence the three accused persons Suresh, Dalip and Sushil have tried to show that the victim was murdered by three persons and none of the three accused persons is amongst those three persons.
PW 1 Sh Ashok Kumar Chowdhary who took the victim to the hospital from the spot was produced by the prosecution to show that just after the murder he reached the spot and took him into the hospital and the Investigating Officer recorded his statement/ruqqa Ex PW1/A. According to the prosecution case and the statement of this witness made to the investigating officer Ex PW1/A he was present in his office and on hearing noise that somebody has shot Surinder Gupta he came out of the office and found that the victim Surinder Gupta was lying on the Road in injured condition about hundred feet from is office. He then went there and with the help of other persons put the victim Surinder Gupta in the car and took him to the hospital. In the in the examination in chief PW1 Ashok Chowdhary supported the prosecution case but in the cross- examination he stated that he can identify the three accused persons who had escaped from the spot and also stated that the accused persons then present in the court were not those three persons. He also stated, by making deviation from his complaint Ex PW1/A that he was standing outside his office at the time of incident whereas in the complaint Ex PW1/A stated that he was in the office at the time of incident. The question arises if this witness was standing outside his office and has witnessed the incident in question, what prevented him from 59 S/vs Suresh Pahalwan & Ors stating so when his statement Ex PW1/A was recorded by the concerned Sub- Inspector. Why did he sign the statement Ex PW1/A if it was not correctly recorded by the Sub-Inspector in question? Why he did not make any complaints to higher police authorities that his statement was not correctly recorded? The obvious inference in answer to these questions seems to be that this witness has been won over by the accused persons so in the cross-examination conducted on behalf of the accused persons he has supported them by making statements which were not true and which were deviation and exaggerations from his earlier statements Ex PW1/A. Oncoming to know of it and realising the implication the learned Public Prosecutor on 13.02.04 after examination of PW1 dropped the other witness on the similar point PW Raj Kumar who was present with PW1 and took the victim to hospital with him perhaps apprehending that the other witness Raj Kumar who is friend of PW1 would also give similar statement in the cross- examination. The apprehension of learned Public Prosecutor was not without foundation. The three accused persons have produced the prosecution witness in Raj Kumar as a defence witness and what was feared by the prosecution from him to happen in the cross-examination on behalf of accused persons has been stated by him as DW1 in his examination in chief. As a defence witness DW1 Raj Kumar though supported the prosecution case with regard to murder of the victim Surinder Gupta and the fact that it was done by bullet shot and knife blows by three persons. But like what PW1 stated in the cross-examination this 60 S/vs Suresh Pahalwan & Ors witness DW1 stated in the examination in chief that he has seen the three assailants and none of them was present in the court. DW1 Raj Kumar stated that his statement was recorded by the police but has also stated that it was not read over to him. In the cross-examination conducted on behalf of the prosecution this witness has denied the statement Mark DW1/PX to have been made by him to the police. Therefore it, appears that PW1 Ashok Chowdhary and DW1 Raj Kumar who were not eye witness of the murder in question and only reached the spot after the murder have tried to show that they have witnessed the murder by stating that they were present and standing outside the office of PW1 Ashok Chowdhary. The prosecution case as well as defence of accused persons is that incident took place at 12 noon. It is a matter of common knowledge that in the month of May and June they scorching heat in Delhi. It cannot be expected that on 31.05.03 PW1 and DW1 would be standing outside the office on a hot summer day near the office of PW1 and not inside the office. This fact also goes against the said testimonies of PW1 and DW1 and the defence of the accused persons.
In the present case the testimony of PW 14 Subodh Kumar who is the eyewitness of the case looks to be truthful. The conviction can be based upon the testimony of a single witness in a murder case if the testimony of the witness is found to be truthful. (See Ramesh Krishna Madhu Sudhan Nayar 61 S/vs Suresh Pahalwan & Ors Vs space State of Maharashtra 2008 (1) CC Cases (S. C.) 189 and Kunju @Balachandran Vs. State of Tamil Nadu 2008 (1) CC Cases (S. C.) 184 relied on behalf of prosecution). This witness is important not only because of the fact that he has witnessed the incident but also on account of the fact that he is witness of the arrest of three accused persons at NOIDA and also the disclosure statement of the three accused persons and recovery of country made revolver Ex P1 at the instance of the accused Sushil. His statement in also corroborated by PW 18 Vinod Gupta the younger brother of the deceased victim as regards arrest of the three accused persons at NOIDA, disclosure statement of accused Suresh Ex PW 14/A, recovery of country made revolver Ex P1 vide recovery memo Ex PW 14/J. His statement is corroborated by Inspector N.P. Singh, Sub Inspector Bharat Singh.
PW 18 Vinod Gupta the younger brother of the victim is also witness of extra judicial confession of accused Sushil Pahalwan. He stated that on 31/5/2003 at about 12:30 PM he was going to house of his brother Surinder Gupta via DP Marg and at Timber Market Bus Stand where the accused Sushil Pahlawan, Suresh Pahalwan and Dalip met him. He inquired from them as to whether his brother Surinder Gupta was present in the house or not as they use to come to the house of his brother. On this accused Sushil Pahalwan told him that "Tere Bahai Ka Kaam hamesha ke liya tamam kar diya inke roj aaj aaj tak 62 S/vs Suresh Pahalwan & Ors paise ke liya karta tha''. The legal position is that if the evidence of extra judicial confession is a reliable, trustworthy and beyond reproach, the same can be relied upon and a conviction can be founded thereon. (See State of Uttar Pradesh Vs M. K. Anthony AIR 1985 SC48; 1985 CRI LJ 493SC). I do not see any reason to disbelieve the statement made by PW 18 brother of the victim with regard to extra judicial confession of accused Sushil Pahalwan who was accompanied by co-accused Suresh Pahlawan and Dalip soon after the murder of the victim when these accused persons met PW 18 on the way.
It was argued on behalf of the three accused persons that the testimony of witness Subodh Kumar PW 14 should be discarded and other witnesses are hostile so the prosecution is left with circumstantial evidence only. It was argued that even the motive for a crime is not established not the chain of circumstances is established by the prosecution. Reliance is placed upon the authority State Vs. Ravi @Munna 2000 (1) JCC (Delhi) 115. But I do not agree with learned counsel for the three accused persons in this regard. Although motive for the crime assumes importance in cases pertaining to circumstantial evidence but in the light of discussion made above since it is found that the testimony of PW 14 Subodh Kumar the eyewitness is reliable, it is not a case of circumstantial evidence notwithstanding the fact that some of the public witnesses have turned hostile. Therefore, Ravi's case (supra) does not help the 63 S/vs Suresh Pahalwan & Ors three accused persons.
From the above discussion the charge of conspiracy to commit murder of deceased Surender Gupta independently under section 120B IPC or read with section 302 IPC is not established. Therefore, two technical questions arise in this case. One is what is the affect of failure of charge of conspiracy with regard to three other accused persons Suresh Pahalwan, Dalip Kumar and Sushil Chowdhary not with standing the fact that no charge against accused Lekh Raj is proved. The second question is since the prosecution has been able to prove beyond reasonable doubt that three accused Suresh Pahalwan, Dalip Kumar and Sushil Chowdhary have committed murder of deceased Surender Gupta on 31.5.03 and since the charge of conspiracy is not proved can they legally be convicted under section 302 IPC simpliciter or under section 302 read with section 34 IPC when there is no separate charge against them for the said offences. As regards the first question the legal position is that even if the charge of conspiracy is not established against accused persons they can be convicted for the other offences. This view is substantiated by the authorities A. S. Krishnan Vs State of kerala ( 2004) Cr.L.J. 2833 (S.C. ) and Madan Lal Vs The State of Punjab AIR 1967 SC 1590. Therefore, the three accused persons Suresh Pahalwan, Dalip Kumar and Sushil Chowdhary can be convicted under 64 S/vs Suresh Pahalwan & Ors section 302 IPC. On the second question, section 34 IPC does not create a distinct offence; it only lays down the principle of joint( constructive) liability. ( See Gurdata Mal Vs State of Uttar Pradesh AIR 1965 SC 257, p 260( 1965) 1 Cri L J 242;Surjamoni Misra Vs State ( 1968) 34 Cut LT 554; Re Panduranga Rao AIR 1952 Andh Pra 257, p 260;Om Prakash Vs State AIR 1956 All 241; State of Orissa Vs Raj Kishore Singh (1966) 32 Cutt LT 41; Dhansai Sahu Vs State AIR 1969 Ori 105, (1969) Cr.L.J. 626, 35 Cut LT 18; Nepal Ghosh Vs State (1992) 1 Crimes 833, p 837 ( Cal )(DB); Hadibandhu Mohalik Vs State (1986) 61 CLT 167, pp 175-76. The participators in crime may concert immediately before the commission of the offence or even at the time of the commission of the offence. ( See Hasan Abdulla Vs State of Gujarat AIR 1962 Guj 214, Oswal Danji Tejsi Vs State AIR 1961 Guj 16, Kundan Lal Vs State of Rajasthan 1983 Raj CrC 281(DB); Satish Sah Vs State of Bihar 1995 Cr LJ 213( Pat); Joginder Singh Vs State of Himachal Pradesh (1995) CrLJ 124(HP).
In the present case the three accused persons Suresh Pahalwan, Dalip Kumar and Sushil Chowdhary have participated in the commission of murder of the deceased Surender Gupta at the spot as referred before so they, in my view can be convicted under section 302/34 IPC. As regards accused Suresh Pahalwan at whose instance the knife was recovered from sand under 65 S/vs Suresh Pahalwan & Ors the Pilanji Pul and accused Sushil Pahalwan at whose instance the country made pistol Ex P1 was recovered under the bush in Chik House Wala Park near I.N.A. Complex near Safdarjung Terminal, they are also liable to be convicted under section 25 of Arms Act.
RESULT In view of the above discussion, I hold that prosecution has failed to prove the charges against accused Lekh Raj so he is acquitted of the charges under section 120B IPC, 302 read with section 120B IPC. Other three accused persons Suresh Pahalwan, Dalip Kumar and Sushil Choudhary are convicted under section 302 IPC read with section 34 IPC. Accused Suresh Pahalwan and Sushil Choudhary are also convicted under section 25 of Arms Act.
( S.K. SARVARIA )
Announced in the open Additional Sessions Judge-01
court on 11.11.2008 South, Patiala House Courts
New Delhi
66 S/vs Suresh Pahalwan & Ors
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE01
SOUTH: PATIALA HOUSE COURTS
NEW DELHI
Sessions Case No. 203/2006/2003
State Vs. (1) Suresh Pahalwan @ Suresh Basoya (A1)
S/o Late Shiv Lal
R/o 2043 village Pillanji
K.M.Pur, New Delhi.
( 2) Dalip Kumar @ Gudar (A2)
S/o Late S. Satya Prakash
R/o 1589 Rishi Nagar, K.M. Pur
New Delhi.
( 3 ) Sushil Chowdhary @ Sushil Pahalwan (A3)
S/o Sh. Lekhraj
R/o 1810/5 Gyani Bajar, K. M. Pur,
New Delhi.
FIR No. 225/03
PS K.M.Pur
U/s 302/120B/34IPC
& 25/27 Indian Arms Act
ORDER ON SENTENCE
Vide my judgment dated 11.11.08 the three accused persons namely Sushil Chowdhary, Suresh Pahalwan and Dalip Kumar were 67 S/vs Suresh Pahalwan & Ors convicted under section 302/34 IPC and also two convicts Suresh Pahalwan and Sushil Choudhary are convicted under section 25 of The Indian Arms Act 1959. It is argued by learned Additional Public Prosecutor assisted by Sh M K Sharma, learned counsel for complainant that it was a day light murder and 17 stab injuries were inflicted to the victim besides two bullets injuries so the extreme death of penalty should be awarded to these three convicts. It is also argued that convict Sushil even during custody was involved in a case under section 186 IPC. Besides he was also involved in a case under Punjab Excise Act, 1914 and another case under section 323/451 IPC. Reliance is placed upon the authorities Bachan Singh Vs State of Punjab (1980) 2 SCC 684 and Machhi Singh and others Vs State of Punjab (1983) 3 SCC 470.
Learned counsel for these three convicts argued that three convicts were of very young age at the time of commission of offence in the year 2003. Convict Suresh is now 27 years old and convict Dalip and Sushil were also young persons at the time of commission. It is argued that convict Dalip has a ailing wife and three children. Convict Sushil has 08 years old son and convict Sushil who is aged about 29 years now has also small family to look after. It is argued that there is possibility of reform of convicts and it is not rarest of rare case in which extreme sentence should be awarded. Reliance is placed upon the authorities Prem Sagar Vs Dharambir and others 2003(3)JCC 1662, Des Raj 68 S/vs Suresh Pahalwan & Ors Vs State of Punjab 2007 (4) JCC 2974, State Vs Mohd Sheikh Noor Hussain 2007(4) JCC 3137, Surender Pal Shivbalakpal Vs State of Gujarat 2004(3) JCC 1486, State Vs Brij Kishore 2006(3) JCC 1224 and State Vs Sushil Kumar 2006(3) JCC 1229.
I have heard the learned Additional Public Prosecutor assisted by learned counsel for complainant and also learned counsel for three convicts and have gone through the authorities relied upon from both the sides and the carefully.
In Bachan Singh's case (supra ) the Constitution Bench of our Hon'ble Supreme Court has upheld the penalty of the death sentence to convict under section 302 IPC and has also laid down as a legal principle that this sentence can only be awarded in rarest of the rare case. Later in Machhi Singh's case relied on behalf of the prosecution the three Judges Bench of Hon'ble Supreme Court has interpreted Bachhan Singh's case (supra ) and has laid down the proposition of law for award of sentence in murder cases. It was explained that the extreme penalty of death need not be implicated except in gravest cases of extreme culpabability. The life imprisonment is the rule and death sentence an exception. The balance sheet of aggravating and mitigating circumstance has to be drawn up.
Number of factors are required to be taken into consideration while imposing sentence in a murder case such as the motive of crime, the manner of 69 S/vs Suresh Pahalwan & Ors assault, the circumstance in which the offence was committed and also whether there was any kind of lust greede or in pursuance of organised anti social activity or by way of organised crime the murder was committed etc. For imposing death penatly the sub section( 3) of the section 354 Cr. P.C. requires special reasons to be given by the court. By virtue of catena of decisions of Hon'ble Supreme Court including Machhi Singh's case and Bachhan Singh's case the death sentence is to be awarded in a rarest of rare case. In the present case although it is a day light murder and number of wounds inflicted upon the victim and accused Sushil Chowdhary is also stated to be involved in 2-3 criminal cases of minor offences. Brutality in commission of murder will not by itself bring the case within the ambit of rarest of rare cases ( See Registrar General, High Court of karnataka Vs Prakash Jadav (2006) Cr.L.J. 3393( Kant) (DB); Shyamlal Vs State of Chattisgarh ( 2006) CrLJ 4743( Chattisgarh) (DB) and Subhas Ramkumar Bind alias Vakil and anr. Vs State of Maharashtra (2003) CrL.J.443(SC) according to the prosecution case as is also reflected from the disclosure statements of the convicts Ex PW14/G, Ext PW14/K and Ext PW14/M the murder was committed by these three convicts because the deceased has not returned the money to these three convicts which was given by them to him on interest. Keeping in view this fact and the young age of the three convicts and also the aforesaid authorities relied upon by the learned counsel for the convicts in which under different facts and circumstances our Hon'ble High Court/ Hon'ble 70 S/vs Suresh Pahalwan & Ors Supreme Court found those cases not falling amongst rarest of rare cases, had reduced the sentence of death penalty to life imprisonment while maintaining conviction for the offence under section 302 IPC. Therefore, I am of the view that present case does not fall within the rarest of rare case and so there are no special reasons for awarding death penalty within meaning sub section (3) of section 354 Cr. P.C.. The three convicts Suresh Pahalwan, Sushil Chowdhary and Dalip Kumar are sentenced to Life Imprisonment for commission of the offence punishable under section 302/34 IPC they are also directed to pay fine of Rs 10,000/- each, in default of payment of fine convicts Suresh Pahlwan, Sushil Chowdhary and Dalip Kumar shall undergo Simple Imprisonment for nine months Simple Imprisonment under section 302/34 IPC. For the offence under section 25 of Indian Arms Act the convicts Suresh Pahalwan and Sushil Chowdhary are sentenced to undergo Rigorous Imprisonment for two years each with fine of Rs 1000/- each, in default of payment of fine they shall undergo Simple Imprisonment for two months.
Both the substantive sentences of imprisonment shall run concurrently.
71 S/vs Suresh Pahalwan & Ors Judgment and order on sentence be sent to server(www.delhidistrict courts. nic.in). Copy of judgment and order on sentence be supplied to convicts free of cost. File be consigned to record room.
( S.K. SARVARIA )
Announced in the open Additional Sessions Judge-01
court on 19.11.2008 South, Patiala House Courts
New Delhi
72 S/vs Suresh Pahalwan & Ors