Delhi High Court
State (Delhi Admn.) vs Ashok Kumar And Ors. on 7 November, 2005
Equivalent citations: 126(2006)DLT254
Author: Manju Goel
Bench: Manmohan Sarin, Manju Goel
JUDGMENT Manju Goel, J.
1. The judgment assailed is passed in FIR No.645/80 under Sections 307/34 Indian Penal Code (in short `IPC') registered at police station Kingsway Camp, acquitting the four accused, Ashok Kumar, Leelu, Raju & Vinay @ Binny @ Lelin, of the charge of having attempted to commit murder of Jawahar Singh.
2. The prosecution case briefly stated is as under:
The four accused, Ashok Kumar, Raju, Vinay @ Binny @ Lelin (mis-spelt in the impugned judgment as Lenin) & Leelu appeared at the tea stall near C.C.Colony Higher Secondary school on the evening of 21.7.1980, where the deceased Jawahar Singh and his brother Attar Singh were taking tea. While Leelu secured Jawahar Singh with his arms the other three accused, Vinay @ Binny, Ashok Kumar & Raju, gave stab blows to Jawahar Singh. The brother, Attar Singh, raised hue and cry as Jawahar Singh fell unconscious. He was removed to the hospital by Attar Singh and their mother. The police sub-inspector who arrived at the hospital recorded the statement of Attar Singh and the FIR was accordingly registered. On the arrest of the four accused persons and on their disclosure three knives concealed under a stone near Rani Jhansi Road were recovered. The accused were challaned and thereafter committed to Sessions and charged under Sections 307/34 of IPC.
3. During trial both Jawahar Singh and Attar Singh appeared in the witness box as PW-4 & PW-5. The three recovered knives were produced as P-2, P-3 & P-4. The disclosure statement of Ashok Kumar is proved as Ex.PW-4/F. The other witness examined include Dr.S.C.Devgun (PW-6) who examined Jawahar Singh and found 10 incised wounds on different parts of his body. Two of these wounds were on his back. The trial court on examining the evidence noticed certain discrepancies in the testimonies of the police officers in respect of the time of arrest of the four accused persons and about the mode of recovery of the knives. The trial court also observed that behavior of Attar Singh who claimed to have been present at the scene of occurrence was unnatural. The trial court also found that the prosecution had failed to produce certain material witnesses, namely, people present at the tea shop, taxi driver who carried the injured to the hospital and mother of the injured, who accompanied him to the hospital. There was also omission to collect material evidence in respect of the blood stains in the vehicle used for transporting the injured. The trial court also disbelieved the prosecution story of their being a motive for murder, namely, a dispute over a piece of land described as Gher. On such appreciation of evidence, the trial court acquitted all the accused in the case.
4. The state files the appeal contending that the decision of the trial court is perverse and that it has unreasonably highlighted certain contradictions in the statement of witnesses and was in error in disbelieving the truthful witnesses, particularly, PW-4 & PW-5.
5. We have carefully read the trial court judgment and have heard the counsel for the two sides and have given our consideration to the evaluation of evidence on record.
6. A striking feature of the impugned judgment is that while it weighs the testimony of Attar Singh, PW-4, the brother of the injured, and disbelieves the police witnesses in the matter of recovery of the knives and the arrest of the accused, it makes absolutely no observation about the testimony of the injured himself. It is not a case of disbelieving the injured. It is a case of ignoring the testimony altogether. The entire judgment does not discuss the testimony of PW-5 at all as if that testimony has no bearing on the case.
7. In our opinion, in a case under Section 307 IPC, the person on whose life the attempt is made or who has been injured in such attempt is the most important witness. The injured had received 10 incised wounds. Even without examining any weapon it can be safely said that the injuries had been caused by knife. The injuries were opined to be dangerous. Accordingly an offence under Section 307 had been committed. The question for determination simply is who committed the offence?
8. There are two eye-witnesses in the case, namely, Jawahar Singh and Attar Singh. Attar Singh is disbelieved on the ground that he made no attempt to save his brother from being stabbed and only stood at a distance and raised a hue and cry. We do not find the behavior of Attar Singh to be so unnatural as to throw out his testimony altogether. Not everybody reacts to a situation in the same way. In the present case the accused were armed with knives and prudence would require that Attar Singh, though present at the spot unarmed, does not intervene in the fight. Thus, the reason given for disbelieving Attar Singh is altogether unsustainable. Attar Singh and Jawahar Singh corroborate each other. No contradiction between the testimony of Jawahar Singh and Attar Singh exists in the case, nor is any pointed out in the impugned judgment or by the counsel appearing for the respondents and there is no reason to doubt the presence of PW-4 at the spot. We refer to the observation of the Supreme Court in Main Pal & Anr. v. State of Haryana and Ors.; AIR 2004 SC 2158 that every person cannot act or react in a particular way or very same way and that a person's reaction has to be viewed in the totality of the mental set-up of the person concerned and extent of fear generated by the incident.
9. The trial court's probing into the alleged motive for the offence is also equally erroneous. When eye witnesses are present to an offence, the motive for the offence ceases to be an important factor. Only in cases of circumstantial evidence, motive plays an important part. Further the trial court has disbelieved the story of motive, namely, the dispute over Gher, simply because there was neither litigation between the parties nor any report to any police officer. It is not that every dispute leads to civil or criminal litigation. It is only when the disputing parties want to settle their scores in their own way that an offence like this takes place.
10. So far as the question of arrest of the accused is concerned the discrepancy in the statement of police officers about the time of their departure from the police station and about their mode of journey is not of any consequence. It is to be noted that the parties were known to each other, the identity of the accused/ respondents was not in question, accordingly any discrepancy in the evidence of police officer about `when' and `how' of their arrests cannot be of any consequence.
11. So far as the recovery of knives is concerned, the same ceases to be of any importance since the prosecution has sufficiently proved the case by production of two eye witnesses. Even if the knives had not been recovered, a conviction could be sustained on the testimony of the injured and the eye witness.
12. Another important feature of the trial court is that no motive of any kind has been ascribed to the two eye witnesses for involving the four accused in this case. It is true that between the incident and the recording of the FIR, there is a gap of nearly two hours. However, there is no dispute that the injured was immediately removed to the hospital and police came to the hospital to record the statements of the victim and his brother and, therefore, the delay cannot be attributed to any of the two. Further, since no motive to falsely implicate any of the accused has been made out, this delay is not of much consequence. Since Jawahar Singh had been badly injured the first task for his brother and his mother was to rush him to the hospital and get all necessary help to save his life rather than run to the police station to get the FIR recorded. The prosecution story cannot be disbelieved on account of such delay. We are unable to agree with the trial court on any of the reasons given in the impugned judgment for disbelieving the prosecution case.
13. It will be proper to briefly review the evidence on record with particular reference to the testimonies of PW-4 & PW-5, the main witnesses in this case. The relevant part of the statement of PW-4 that deals with the attack is that on 21.7.80 at about 9-30 P.M. he and his brother, Jawahar Singh, were taking tea at the tea stall opposite C.C. Colony Higher Secondary School when the four accused persons came from the side of C.C.Colony and on reaching the tea stall Leelu secured his brother Jawahar Singh by his arm while the remaining three accused started giving knife blows to Jawahar Singh on chest, stomach and waist. While Leelu was unarmed the other three were armed with knives. He said that he raised hue and cry as he himself was scared and that the accused ran away after belabouring Jawahar Singh. The witness goes on to say that he arranged a taxi and took the injured brother to Hindu Rao Hospital where the police came and recorded his statement which was Ex.PW-4/A. In cross-examination he deposes that there was none else at the tea shop, that there was another tea shop in the neighborhood which was visible from the place of occurrence, that he did not know the name of the tea vendor or any of the neighbouring residents. In cross-examination he discloses also that his mother had arrived after the accused had left and that he had left his brother in the care of his mother when he had gone to bring a taxi. There is nothing in the cross-examination which shakes the testimony of PW-4.
14. The most important testimony is that of PW-5, the injured himself. He says that on 21.7.1980 at around 9.30 P.M. he was present at the tea shop opposite C.C. Colony along with his brother, Attar Singh and that the four accused arrived there and while Leelu secured him the three accused, Vinay @ Binny, Ashok and Raju, took out knives and belaboured him with knives. He says that he fell unconscious and regained consciousness at the Hindu Rao Hospital where he had been admitted.
15. PW-4 & PW-5 corroborate each other. Only contradiction needing mention is that while PW-4 says that PW-5 gave the names of the accused to his mother on way to the hospital, the PW-5 denies having done so. To us the contradiction is not material. It may be stated further that though PW-5 was in a precarious condition when he reached the hospital and the MLC has several endorsements "unfit for statement", one sentence statement was recorded by the police officer on 21.7.80 at 11.30 p.m. in presence of Dr.S.C.Devgun. The statement is Ex.PW-5/A. Subsequently a full statement was taken when he became fit for the statement. Even if we discard the statement Ex.PW-5/A, the rest of evidence on record is sufficient to prove the prosecution case.
16. Raising doubts on the veracity of PW-5 it is submitted by the learned defense counsel that if Leelu had secured him from the left side, as he says, there could not have been any injury on his left side. This again is not a material contradiction since the victim must have struggled and attempted to rescue himself and the position of the victim and Leelu might have changed allowing one of the blows to fall on the left side of the victim's body.
17. PW-5 has strongly denied all suggestions of enmity with any of the accused/respondent except Ashok who laid claim over the Gher. No evidence of any enmity is led by the accused/respondents. Hence PW-5 or PW-4 cannot be disbelieved on account of any such reason. On the foregoing analysis we have no option but to return a verdict of guilt.
18. It is true that a long time has passed since the occurrence and the impugned order of acquittal was passed nearly twenty two years back. Nonetheless since the acquittal has caused complete failure of justice, we cannot ignore the guilt of the respondents. The Supreme Court had the following to say in the case of Main Pal (Supra):
The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is, clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference.
19. Ashok is no more. The other three respondents, namely, Vinay @ Binny @ Lelin, Raju & Leelu deserve to be convicted for the offence of attempt to murder under Section 307 read with Section 34 IPC. We do so accordingly.
20. Vinay was a child as defined under The Children Act, 1960. He cannot be sentenced to imprisonment. In view of lapse of time from the time of the crime, viz., nearly twenty five years, we do not see any purpose in ordering probation or admonition for him. Accordingly, no order of either punishment or one under Section 22 of the Children Act, 1960 need to be passed. His bail bond is cancelled and his surety is discharged. The other two respondents deserve to be punished under Sections 307/34 IPC. Keeping in view the nature of the offence and all the attending circumstances of the case including the lapse of time, i.e., nearly 25 years since the commission of the offence and nearly 23 years since the appeal against the acquittal was filed and change in the circumstances in the lives of the two accused who are being convicted by this judgment, we consider it appropriate to impose a sentence of six years of rigorous imprisonment with fine of Rs.10,000/- each and in default to undergo simple imprisonment for four months. In case a fine is recovered the same will be paid to Jawahar Singh, the victim of the offence. Both the convicts would be entitled to the benefit of Section 428 Cr.P.C.