Delhi High Court
Yudhvir Singh And Ors. vs State (Delhi Administration) on 1 May, 1994
Equivalent citations: 1994IIIAD(DELHI)617, 1994(30)DRJ98
Author: Y.K. Sabharwal
Bench: Y.K. Sabharwal
JUDGMENT Y.K. Sabharwal, J.
(1) The appellant Yudhvir Singh has been convicted by Court of Session for offence of murder under Section 302 Indian Penal Code and sentenced to life imprisonment, his brothers Dharamvir and Jasbir Singh have been convicted for offence under Section 323 and also Section 323 read with Section 34 IPC and another brother Ranbir Singh for offence under Section 323 read with Section 34 Indian Penal Code and they have been sentenced for different periods. Their father Hari Singh was acquitted of all the charges. All the four brothers have filed this appeal. Briefly, the prosecution case is as follows:- There was theft in the house of daughter of Hari Singh. The sons of Hari Singh suspected deceased Narender for the said theft. On 5th February 1986 there was a quarrel between sons of Hari Singh on one hand and Narender on the other. According to Bhisham Tanwar, the brother of Narender, at about 6.30 p.m. February 1986 he was in his house when he heard loud abusing voices and thereupon on coming out he saw that in the street near the Provision Store Hari Singh and his four sons Yudhvir, Ranvir. Jasbir, and Dharamvir were attacking his brother Narender with lathies. He intervened and rescued Narender from them. At that time Yudhvir Singh attacked Narender with knife and gave a knife stab on the chest, another stab on the stomach and third on left leg of Narender. Bhisham Tan war brought Narender to Safdarjung Hospital with the help of Ashok in a three wheeler scooter. Asi Niranjan Singh recorded the statement of Bhisham Tanwar in the hospital and came to the spot of incident and recorded his own comments below the statement of Bhisham Tanwar and sent it to the Police Station Naraina for ' registration of the case at 8.30 p.m. through Constable Jagidsh. After registration of the Fir the investigation of the case was assigned to Vijay Pal Singh, S.I. Narender expired that night. The injuries inflicted on Narender were sufficient to cause death in the ordinary course of nature. The main evidence on the basis of which the appellants have been convicted is that of Bhisham Tanwar (Public Witness -4) who according to the prosecution version was an eye witness to the incident of stabbing; the dying declaration made by Narender to his brother Raj Kumar(PW-S) to the effect that he was stabbed by Yudhvir Singh and recovery of knife at the instance of Yudhvir Singh which bore the same group of blood as that of the deceased.
(2) In order to appreciate the contentions put forth in this appeal it would be useful to notice certain other facts as well. According to the case of the prosecution after Narender had been stabbed by Yudhvir, his brother Bhisham Tanwar started bringing Narender towards Ring Road to get a three-wheeler scooter for hospital. Narender had to sometime sit and had to walk sometimes. On reaching near the shop of vegetable vendor Narender fell down in the street. Bhisham then came to Ring Road which was nearby and saw Ashok coming and he told Ashok as to what had happened and asked him to bring a three-wheeler scooter so that Narender could be taken to the hospital. Ashok went to the Ring Road to ge.t the scooter. In the meantime Raj Kumar (Public Witness .3) reached there. Bhisham Tanwar told Raj Kumar as to what had happened. Raj Kumar told Bhisham Tanwar to take Narender to the hospital and that he would fetch money from the house. Raj Kumar went towards the house. Ashok Kumar brought the three wheeler scooter. Raj Kumar returned with money. Bhisham Tanwar and Ashok took Narender to Safdarjung Hospital in a three wheeler and Raj Kumar came behind by another transport. They reached Safdarjung hospital at 7.45 p.m. and went to Emergency Ward and at that stage Raj Kumar also reached there. A Constable also came there. The doctor gave Bhisham Tanwar a slip and asked him to take it to the registration counter. Raj Kumar remained in Emergency Ward. Bhisham Tanwar returned after getting registration done and by that time Asi Niranjan Singh had come to the Emergency Ward. Narender was taken towards the Operation Theatre.
(3) The Duty Officer of Police Station Naraina Was Asi Nafe Singh (Public Witness .12). He is stated to have received message from Police Control Room at 6.50 p.m. and entered in Daily Diary No.12(Ex.PW.12/A). PW-12 deputed Asi Niranjan Singh (PW.IO) and Constable Jagdish Prashad to go to the spot. Ex.PW.12/A,inter-alia, records that a message had been received from Public Call to the effect that sons of Hari Singh, the Nambardar had stabbed a boy near Pratap Tea Stall, Village Naraina Ring Road and some officials may be sent. The receipt of information from Police Control Room and time of departure recorded in Ex.PW.12/A is 6.50 p.m. According to Asi Niranjan Singh (Public Witness .10) he started for the spot of occurrence at 6.50 p.m. on receipt of copy of DD.No.12A and reached near Pratap Tea Stall Along with Constable Jagdish Singh and learnt that the injured had been taken to Safdarjung hospital. Leaving Constable Jagdish at the spot he went to the hospital where he found Narender admitted in an injured condition. PW.10 approached the doctor for recording the statement of Narender but the doctor opined that Narender was not fit to make the statement. Ex.PW.10/A is the application given by Asi to the Doctor Asi Niranjan Singh recorded the statement of Bhisham Tanwar Ex.PW.4/A and this was the basis of registration of the FIR. PW.10has deposed that after recording the statement of Bhisham Tanwar he came back to the spot and at the spot he recorded his endorsement Ex.PW.10/B below the statement of Bhisham Tanwar Ex.PW.4/A and from there he sent Constable Jagdish to the Police station for registration of the FIR. Soon there after Sri Vijay Pal (Public Witness .19) reached the spot and took over the investigation. PW.IO again went to the Safdarjung Hospital with PW. 19. PW.19 also met Bhisham Tanwar in the hospital and verified the facts. Thereafter, PW.10 and PW.19came to the spot, inspected the scene of occurrence and conducted investigation. At 7.25 a.m. on 7th February 1986 information was received from the hospital vide D.D. entry No.23.A that Narender had expired and then PW.19 and PW.10 went to the hospital and completed the formalities and the body was sent for post mortem to All India Institute of Medical Sciences. From the hospital these officials came to the house of Hari Singh and on way they met Bhisham Tanwar at the Ring Road and they were informed that the accused had gone to their house and so these officials arrested Hari Singh and his four sons. Their personal search etc was conducted. Yudhvir made a disclosure statement that the knife had been kept by him below two bricks at the roof of the house of his friend Dinesh. Yudhvir Singh led the police party including PW.4 to the said roof and produced knife from below the two bricks. The knife was taken into possession. The knife was found have some brown strains. Sketch of knife was prepared. The disclosure statement has been proved as Ex.PW.10/C. (4) The learned Additional Sessions Judge has held that it had not been established that Hari Singh was in possession of any weapon and that he did not participate in the hitting or stabbing of Narender except that he was present at the place of occurrence. Hari Singh was acquitted of all the charges. Regarding brothers other than Yudhvir Singh the learned Additional Sessions Judge has held that they could not be fixed with knowledge that Yudhvir -had knife or had intention to cause stab injuries to Narender with knife and held that it could not be said that the said three brothers had any common intention to kill Narender. It was found that the four brothers had common intention to beat Narender as they were in possession of lathies and dandas. In view of these findings the accused other than Yudhvir were acquitted of offence under Section 302 IPC.
(5) The main attack of learned counsel for the appellants is to the testimony of PW.4 and rightly so for the reason that if the testimony of PW.4 Bhisham Tanwar is discarded and is held to be not trustworthy, then other circumstances and evidence, would have to be examined from that prospective and there would remain hardly any evidence to sustain the conviction. The other evidence is the statement of the other brother PW.3 Raj Kumar, the discovery of the knife and police record prepared soon after the incident. The veracity and creditability of this evidence would also depend upon the creditibility which may be attached to the testimony of PW.4.
(6) MR.MATHUR contends that there are various discrepancies in the case and that in the testimony of PW.4 there are various vital contradictions which go to the root of the matter and has the effect of completely demolishing the case of the prosecution and in any case raising a reasonable doubt in the prosecution case and consequent acquittal of the appellants. The discrepancies and contradictions pointed out are:- (1) the name of Raj Kumar is not mentioned in the statement of PW.4 though it is alleged to have been recorded at about 7.30 p.m; (2) the name of the assailant is not mentioned in the MLC; (3) the name of-the person who admitted the Narender in the hospital mentioned in M.L.C. is that of Raj Kumar and not of PW.4; (4) the time of recording of statement Ex.PW.4/A in the hospital is alleged to be 7.30 p.m. whereas according to the testimony of PW.4 it was recorded at 11.30 p.m.; (5) blood stained clothes of PW.4 and PW.9 were not taken into possession by the Police; (6) Ex.PW.4/A docs not mention that Narender made any statement to Raj Kumar to the effect that he had been stabbed by Yudhvir Singh. Learned counsel further contends that there were serious contradictions in the statement of PW.4 and PW.3 on the alleged motive of the crime. lt was also contended that the alleged disclosure statement was recorded after the recovery of the knife had been allegedly made and thus it was not admissible in evidence. These discrepancies and contradictions, learned counsel contends, have not been properly appreciated by the learned Additional Sessions Judge particularly when the diseased was a close relation of PW.3 and PW.4 being their brother and their testimony was required to be closely scrutinised also keeping in view the fact that no independent witness had been examined though the incident is alleged to have taken place in the evening in a busy area.
(7) The fact that the PW.3 and PW.4 were close relations to deceased Narender by it self is not a ground for not relying upon their testimony if it is otherwise reliable and trustworthy. At the same time, it is true that their testimony requires a close scrutiny. It has also to be borne in mind that PW-3 and 4 were not and cannot be said to be chance witnesses. It is amply proved on record that the incident had taken place near the house of these, witnesses and the deceased and also the house of the accused who were all neighbours living in the near vicinity and thus it was natural for PW.4 to come out on hearing the loud voices. On the facts and circumstances of the present case it is also to be borne in mind that if the version given by PW.3 is not correct, that would mean that he wants the real culprit to go scot free and deliberately wants to implicate the accused. Another important aspect of the case is that though the accused had altogether denied the incident in question but the Mlc (Ex.PW.19/1) in respect of Dharamvir states that "alleged H/ 0 (history of) hit by lathi by some Narender at about 6 pm on 6.2.86". This document shows the date of examination of Dharamvir as 7th February 1986 at 8.15 p.m. It is clear from this document and other evidence on record that the incident of beating etc on date and time deposed by PW.3 had taken place.
(8) The absence of name of Raj Kumar in the statement Ex.PW4/1 is wholly inconsequential. Even PW.9 Ashok Kumar, who was declared hostile as he did not support the case of the prosecution, had testified that PW.3 and his brother Raj Kumar were present in the hospital when Narender was taken to the hospital. The absence of the name of assailant in the Mlc is again of no consequence. There is neither any such requirement nor this circumstance creates any doubt about the correctness of the prosecution case.
(9) In the Mlc Ex.PW.1/A the name of Raj Kumar has been mentioned as a person who brought Narender to the hospital. On this basis a contention was put forth that PW-4 had not taken Narerider to the hospital and had it been so the document would have mentioned the name of PW.4 instead of FW.3 Raj Kumar. We do not find any substance in the contention. There is ample evidence on record that Narender was taken to hospital by PW.4 and PW.9 in a three wheeler scooter and PW.3 went to the hospital by another transport and he also reached the hospital soon. It has also been established that PW.4 had gone for registration in the hospital on the slip having been given to him by the doctor and if under these circumstances name of Raj Kumar is mentioned in Ex.PW.1/A that would not throw any doubt about the correctness of the prosecution case.
(10) According to PW.10 Asi Niranjan Singh he recorded the statement of PW.4, on the basis of which Fir was registered, before 7.30 p.m. The time for recording the said statement, according to deposition of PW.4, was about 11.30 pm or 12 midnight. Learned counsel for the appellant laid great stress on this contradiction. On appreciation of other evidence on record 'in particular the daily diary entries recorded soon thereafter, as noticed hereihafter, it seems clear to us that this contradiction does not in any manner affect the case of the prosecution. It has to be remembered that the evidence was recorded about a year after the date of the incident and it is but natural that the witnesses may not correctly remember the exact time and every minute detail. The circumstance that blood stained clothes of PW.4 were not taken into possession by the Police stands explained as only the sleeves of his kurta, as per his testimony, had become blood smeared and if on that account PW.10 did not notice blood stains on the clothes of PW.4 in the hospital and did not take the same into possession that would not be a vital discrepancy to create any doubt much less reasonable doubt on the case of the prosecution. We also fail to understand as to what was the necessity for PW.4 to state in his statement Ex.PW.4/A that Narender told PW.3 that he had been stabbed by Yudhvir, when PW.4 himself was an eye witness of the incident.
(11) According to PW.4 the motive of the accused in beating Narender and stabbing him was their suspicion that Narender was responsible for the theft in the house of their sister. The other brother PW.3 stated that there was no dispute or quarrel between the two families and that he did not know if ever there was any complaint against Narender with the Police. Mr. Mathur contends that these two depositions show vital contradiction on the motive of the crime. We find it difficult to accept the contention. It is evident from the testimony of PW.13 that a case of theft in the house of the daughter of Hari Singh had been registered on 27th. April 1984 and in connection therewith Narender had been interrogated besides other people but the case was later on filed as untraced. On same facts two individuals may have different outlook or approach. It would differ from person to person. The aforesaid depositions of PW.3 and PW.4 only show their different approach or outlook of same facts. In any case, as noticed hereinbefore, the fact that the incident had taken place on the date and the time deposed to by PW.4 finds corroboration even from Ex.PW.19/1 which is a Mlc relating to Dharramvir. Furthermore, the question of motive loses importance in view of the testimony of the eye witness PW.4 which, in our opinion, is cogent, reliable and trustworthy.
(12) In view of evidence of PW.4 the circumstance that that when PW.3 reached before Narender had been taken to hospital on scooter, accused were present in the crowd also lose much of its significance and it can be attributed to loss of memory or not remembering every minute detail.
(13) Both the sides were neighbours and were living in the same locality and PW.4 was an eye witness and thus non examination of other witnesses from locality is understandable as it is also not unknown that in such matters the witnesses from the area are reluctant to depose against one or the other parties.
(14) The Investigating Officer clearly deposed that first the disclosure statement of Yudhvir Singh was recorded and thereafter the knife was discovered. The contradiction on this aspect in the statement of PW.4 that first knife was recovered and then disclosure statement was recorded can be attributed to loss of memory in regard to sequence of events after a span of about a year. The contradictions and discrepancies pointed out by Mr. Mathu rare natural, negligible and insignificant in the facts and circumstances of the case, particularly, when examined in the light of documents which came into existence minutes after the incident had taken place and the name of the accused being mentioned in those documents.
(15) It stands established that within few minutes the Police was informed about the name of the accused. The incident took place at about 6.30 p.m. Ex.PW.7/A is information received at Police Control Room at 6.44 hours and it was passed on to PW.12 Nafe Singh within five minutes i.e. at 6.49 p.m. According to Ex.PW.7/ A the information received by Police Control Room was that the sons of Hari Singh Nambardar had stabbed a boy near Pratap Restaurant Ring Road, Naraina. On receipt of this information Asi Niranjan Singh (Public Witness 10) as perEx.PW.12/A being Dd Entry No.12-A was deputed to investigate the case. Ex.PW.12-A again mentions the names of sons of Hari Singh. A Rukka was sent by Asi Niranjan Singh at 8.30 p.m as per his endorsement Ex.PW.10/B recorded on the reverse of the statement Ex.PW.4/A made by PW.4. Further, Ex.PW.12/B being Ddba dated 13.2.86 regarding receipt of information through telephone from the hospital at 7.20p.m. records that Narender has been stabbed with knife in quarrel and was got admitted in hospital by his brother PW.4 Bhisham Tanwar.
(16) There is thus overwhelm ing evidence on record that the stabbing incident took place in presence of PW.4. He removed Narender to the hospital. He and PW.3 Raj Kumar were present in the hospital. It is also too natural for Narender to have told his brother Raj Kumar.that he had been stabbed by Yudhvir Singh. This evidence coupled with the recovery of knife on the disclosure statement having been made by Yudhvir Singh and blood stains of the same group as that of Narender (in the knife proves the case of the prosecution beyond any reasonable doubt. We are nut persuaded to hold that the Fir was recorded after any prior deliberations. In the Fir and the documents prepared soon after the incident the accused have been named. In nutshell we may state that the testimony of the prosecution witnesses, in particular, PW.3 and PW.4 inspires confidence is trustworthy, reliable and is not liable to be discarded on account of small contradictions here and there which are natural and explainable.
(17) We do not find any infirmity in the impugned judgment arid as a result the appeal is dismissed.