Delhi High Court
Dharamvir And Anr. vs State Government Of Nct Of Delhi on 15 May, 2002
Equivalent citations: 99(2002)DLT468
JUDGMENT V.S. Aggarwal, J.
1. The present appeal has been filed by Dharamvir and Sunil, hereinafter described as the appellants, directed against the judgment and order of sentence passed by the learned Additional Sessions Judge, Delhi dated 29th January, 2000 and 31st January, 2000 respectively. The learned Trial Court had held both the appellants guilty of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Appellant Dharamvir was further held guilty of the offence punishable under Section 27 of the Arms Act. Accordingly both the appellants, for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code were sentenced to undergo imprisonment for life and to pay a fine of Rs. 2,000 /- each. In default of payment of fine they were to undergo further rigorous imprisonment for two months. Dharamvir was further sentenced to undergo rigorous imprisonment for three years for the offence punishable under the Arms Act referred to above and a fine of Rs. 1,000/-. In default of payment of fine he was to undergo rigorous imprisonment for one month. The sentences awarded were to run concurrently.
2. In brief the facts of the prosecution case can be delineated to be that Jai Kishan deceased is the brother of Rajesh. They were living at Sultanpuri. Deceased Jai Kishan used to sell eggs in a kokha and was on visiting terms with an enunch Mumtaz. Mumtaz lived in E-Block, Sultan Purl. The father of Rajesh had advised Jai Kishan to severe his relationship with Mumtaz and he had stopped going to Mumtaz. This had annoyed Mumtaz. One Dharamvir, appellant was also visiting Mumtaz. Mumtaz had instigated Dharamvir against his brother Jai Kishan. On 22nd May, 1996 at about 7.00 p.m. Dharamvir had come to the house of Rajesh and told Jai Kishan deceased in a threatening tone as to why he was not visiting Mumtaz. He wanted to take Jai Kishan along with him but at the advice of Rajesh he did not accompany him.
3. On 23rd May, 1996 when Rajesh is stated to have got up in the morning he found that his brother Dharamvir was not present in his room, his room was locked. He was suspicious and was searching for his brother. He went to the house of Mumtaz. It was about 7.00 a.m. when he found his brother in the house of Mumtaz. In addition to that both the appellants Dharamvir and Sunil were also there. They were engaged in some arguments. He had told his deceased brother to come back home. Mumtaz told Rajesh that his brother would be sent back. Rajesh started coming back home. When he reached the park of A Block he heard the voice of his brother and saw his brother running from the house of Mumtaz. Dharamvir and Sunil were chasing him. Dharamvir had an open knife in his hand. When Jai Kishan reached near A Block appellant Sunil caught hold of him and Dharamvir gave him knife blows. Rajesh had raised the alarm 'Bachao-Bachao (save save). In the meantime Vinod son of Piary Lal and some other persons reached there. Sunil and Dharamvir ran away. Rajesh along with Vinod took his brother to the hospital where his brother was declared to have been brought dead. In his complaining statement he pointed that Mumtaz, Dharamvir and Sunil in furtherance of their common intention have attacked his brother Jai Kishan.
4. On basis of this complaining statement Sub-Inspector Bhoop Singh had made his endorsement and formal First Information Report was recorded. The officer in charge of the police station had inspected the place of occurrence and lifted the blood stained earth and earth control from the spot. They were converted into different sealed parcels in accordance with the procedure and taken into possession. Post-mortem on the person of the deceased Jai Kishan was conducted and it was reported that death was due to haemorrhage as a result of stab injuries. All the injuries were found to be ante mortem and injury on the left side of the chest was opined to be sufficient to cause death in the ordinary course of its nature.
5. Both the appellants were arrested and during interrogation Dharamvir had made a disclosure statement and got recovered a spring actuated knife from the Ganda Nala Pul, Indira Park bushes. The sketch of the knife was drawn and it was taken into possession vide a sealed parcel that had been prepared. It appears tat during interrogation complicity of one Parveen was known and he too had been arrested.
6. The learned Trial Court had framed the charges under Section 302/34 against both the appellants while a separate charge for the offence punishable under Section 25/27 of the Arms Act was framed against Dharamvir also. The prosecution had in all examined 17 witnesses. The appellants in their statement made under Section 313, Code of Criminal Procedure denied their involvement in the crime and claimed that they were innocent and that they have falsely been implicated. They did not produce any defense.
7. Learned Trial Court on appraisal of evidence relied upon the testimony of Rajesh, the brother of the deceased because the other witnesses had not cared to support the prosecution case pertaining to the actual incident. Basing his evidence on the testimony of Rajesh the learned Trial Court repelled the argument that he was not present at the spot or that conviction could not have been based on his sole testimony. With these basic findings above said judgment and order of sentence had been passed but Parveen who had been tried along with the appellants was acquitted. Hence the present appeal.
8. Learned Counsel for the appellant at the outset highlighted the fact and pointed that when on the same evidence Parveen has been acquitted in that event conviction could not have been based of both the appellants. According to him, when evidence is identical and Rajesh has been disbelieved qua the involvement of Parveen, there is no question of convicting both the appellants. He urged that the matter of both the appellants is not severable from that of Parveen who has since been acquitted. Reliance has been placed by the learned Counsel on the decision of the Supreme Court in the case of Balaka Singh v. State of Punjab, .
9. In the case of Balaka Singh (supra), it had been held that the case of acquitted accused was so inextricably mixed up that it was not possible to severe one from the other. The Supreme Court further held that having regard to the partisan and interested prosecution evidence it was not possible to reject the prosecution case with respect to four accused and accept it with respect to the other five. It had further been held that the prosecution had not been able to prove the case beyond all reasonable doubts against the other five persons who had since been convicted.
10. Indeed if that was the position on facts in the present case there is little difficulty in accepting the said argument but as would be noticed hereinafter, facts herein are different. In the present case as has been noticed above, even in the complaining statement which became subject matter of the First Information Report, the name of Parveen had not been mentioned. It is this important fact which prevailed with the learned Trial Court in proceeding to discuss the evidence and held that Parveen could not have been so convicted. The present case is not one where the case of the convict accused persons is not severable from those who have been acquitted. Therefore the ratio decidendi of the case of Balaka Singh (supra), will not apply in the facts of the present case.
11. Before proceeding further we deem it necessary to refer to another important argument of the appellants learned Counsel that Rajesh is the sole eye-witness in the present case and no conviction should be based on the testimony of such an eye-witness who cannot be described as wholly reliable.
12. Indeed the Supreme Court in the case of Vadivelu Thevar v. The State of Madras, , had gone into this controversy and divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly neither wholly reliable nor wholly unreliable. In the case of first two categories the Supreme Court said that they possess little difficulty but in the case of third category witness corroboration would be required. The precise findings of the Supreme Court are:
"...... Hence, in our opinion, it is a sound and well established rule of law that the Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witness. Irrespective of the quality of the oral evidence or a single witness, if Courts were to insist on plurality of witness in proof of any fact, they will be indirectly encouraging subornation of witness...."
13. The decision rendered in the case of Vadivelu Thevar (supra), was referred to with approval more recently in the case of Jagadish Prasad and Ors. v. State of M.P., 1995 SCC (Crl.) 160. The Supreme Court held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. But if there are doubts about his testimony the Court will insist for corroboration.
14. With this backdrop one can revert to the other submissions before converging into the facts of the present case.
15. Learned Counsel for the appellants contended that in the present case there was inordinate delay in sending the blood stained earth, earth for control, the metallic knife, the cloth parcel and other articles and therefore it causes prejudice to the appellants. Keeping in view the said fact, according to the learned Counsel, the report of the Central Forensic Scientific Laboratory, copy of which is Exs. PX and PY necessarily should be rejected. In support of his argument the learned Counsel relied upon the decision of the Supreme Court in the case of Santa Singh v. State of Punjab, . In the cited case the Supreme Court held that there was inordinate delay in sending of the sealed parcels of empty cartridges recovered from the scene of occurrence for the opinion of Ballistic Experts and that a suspicious delay had occurred, as regards important steps in the course of investigation. Similar view has been expressed in the case of Baldev Singh v. State of Punjab, 1991 SCC (Criminal) 61, and followed in the decision rendered by a Division Bench of this Court in the case of Ten Singh v. State (Delhi Admn.), IV (1995) CCR 85=1996 (1) Crimes 192. In the case of Ten Singh (supra), it was held that there has been an inordinate delay in sending the bipod stained pant of the accused to the Central Forensic Scientific Laboratory and it caused doubt on the investigation.
16. In the present case in hand the incident pertains to 23rd May, 1996, the articles had been sent to the Central Forensic Scientific Laboratory, as is apparent from Ex. PX, on 21st June, 1996, though the report is of 4th August, 1997. It is true that there is some delay in sending of the articles to the Central Forensic Scientific Laboratory but unless as was in the facts of the cases referred to above it is shown that there was prejudice caused or the inordinate delay leads to the inference of unfair investigation, it will not be proper to reject the prosecution as a whole on this count. The above said facts have not been shown in the present case. In face of the aforesaid it would be impermissible in the facts of the present case to accept the said argument so eloquently pointed at the Bar.
17. As pointed above the main witness in the present case is Rajesh, PW 5. He is the brother of the deceased. He made a sworn statement in Court that one Mumtaz, hijdi, was their tenant and thereafter had started living nearby. His brother used to visit Mumtaz. On 22nd May, 1996 in the evening the appellant Dharamvir had come and called his brother and asked him to accompany him for watching a video film. His brother had refused. Next morning when this witness woke up he did not find his brother. He found that door of the roof was locked. Thereupon he went searching his brother and found him in the house of Mumtaz. Sunil and Dharamvir were also there. Mumtaz had to take some money from Dharamvir and Sunil as well as from the deceased. There was an altercation going on between his brother and appellants. He had told his brother to accompany him but Mumtaz had replied that he would be sent later on. He had left the house. When he reached near the park he saw that appellants were chasing his brother, one Parveen (since acquitted) had caught hold of his brother. In the meantime he saw that Dharamvir had given four or five stabs on the chest of his brother while Sunil even had caught hold of its brother. It is Vinod who is stated to have taken the injured to the hospital because the witness explained that he had gone to fetch some money. When he reached the hospital his brother had been declared to be found dead. He was cross-examined in this regard. He stated that Vinod had firstly reached the hospital along with the police and thereafter he had reached. The statement of Vinod was not recorded in his presence. He reached after 1 1/2 hours Vinod reaching the hospital. He was duly confronted with respect to couple of facts as recorded in his earlier statement recorded which had become subject matter of the First Information Report regarding which reference can be made hereinafter. He denied the suggestion that Vinod had not taken the deceased brother of the witness to Jaipur Golden Hospital. He admitted that people generally come to the park for walking and admitted that he did not try to stop the blood of his brother with any cloth. He had left for his house immediately.
18. The presence of this witness was alleged to be doubtful at the spot because according to the learned Counsel he did not take the deceased brother to the hospital and in addition to that if he was present at the spot and witnessed the occurrence he would have tried to stop the blood oozing from the body of his brother but on the contrary he made improvement in his statement in Court by stating that he had gone to fetch money which would be required.
19. Testimony of witness necessarily has to be read as a whole and not one line in isolation of the rest. In the present case Vinod, PW 3 was cited as one of the eye-witnesses. During his cross-examination-in-chief he stated that he had come from the house, many people were shouting. He had told the police that he knows the injured and thereafter police took him along with the deceased to Jaipur Golden Hospital and the deceased was declared to have been brought dead. He added that no injury had been caused to the deceased in his presence. He was cross-examined by the learned Additional Public Prosecutor. He resoled from his earlier statement that had been made and he was confronted in this regard. But he stated "it is correct that Rajesh also came there".
20. When a witness does not support the earlier recorded statement under Section 161, Code of Criminal Procedure it is not the law that whole of the statement has to be rejected. It is the duty of the Court to separate grain from the chaffe. Once the witness stated that Rajesh had also come there it is obvious that before the injured was removed to the hospital PW 5, Rajesh, had come to the place of the incident. Once the presence of Rajesh is admitted at the spot then the above said arguments that he did not take the injured to the hospital or had not tried to stop the blood flowing from the body of the deceased looses much of its significance. This is for the reason that in this regard on behalf of the appellants there was no cross-examination. Rajesh was present at the spot before the injured was taken to the hospital, as per the statement, and one would not be surprised that Rajesh had witnessed the incident as has been deposed by him in Court. His explanation therefore that he had gone to collect money immediately before going to the hospital looks natural and probable and cannot therefore be ignored. It is a reasonable explanation under the circumstances.
21. Statement of Rajesh had further been assailed on the ground that he is an interested witness and being the brother of the deceased his statement as such would not be accepted. Our attention was being drawn to the decision of the Supreme Court in the case of B.N. Singh v. State of Gujarat and Ors., 1990 SCC (Criminal) 283. In the cited case on the facts the Supreme Court did not rely upon the testimony of a person described as an interested person but Supreme Court held that the testimony of a witness cannot be rejected on the ground of interestedness but should be subjected to close scrutiny.
22. In the present case in hand there is no such previous enmity between the appellant and the deceased or this witness to prompt the Court to conclude that Rajesh would depose falsely so as to implicate the appellants falsely. In fact, as the brother of the deceased he would like the guilty to be brought to book rather than an innocent to be so implicated in this regard. The chances of false implication in the peculiar facts therefore being remote and the said argument is of little avail.
23. We are aware of the decision of the Supreme Court in the case of Hasan Murtza v. State of Haryana, I (2002) CCR 116 (SC)=2002 (Vol. 1) Journal of Criminal Cases 425. In the peculiar facts before the Supreme Court it was held that because of contradiction and improvements in the evidence it would not be appropriate to base any conviction acting on the testimony of the witness who had appeared before the Court. The said decision had been highlighted so as to contend that Rajesh had made improvements in the testimony. In this regard the testimony of Rajesh indicates that there were certain contradictions that were put forward during his cross-examination vis-a-vis his earlier recorded statement before the police. This pertained to the fact that he had told the police that Mumtaz was their tenant and that Dharamvir and Sunil had come to their house to take the deceased. These facts had not been recorded in the statement made to the police. He denied having made a statement to the police that Mumtaz had instigated the appellants against his deceased brother while it had been so recorded in the statement made to the police. In addition to that it has already been noted that he had named in Court that Parveen also caught hold of the deceased which was not so recorded in his earlier statement made to the police.
24. Indeed a witness whenever he makes two statements necessarily will not be able to reproduce the earlier statement in a precise mathematical manner. Certain omissions would necessarily occur because this is a natural variation that occurs in the statement of the witnesses. Unless the substratum of the witness is shaken or there are other grounds to disbelieve the witness it will not be proper or possible to reject the testimony if otherwise the statement of witness is found to be reliable. In the present case the basic statement is unshaken. As noticed above, can it be inferred that Rajesh would not be present at the spot? Certain omissions here and there does not permit the Court to take a view that on these alleged contradictions the statement of witness can be described to be one who is not reliable.
25. Totality of the facts when considered clearly reveal that statement of Rajesh, PW 5, cannot be stated to be of untruthful witness. He must be held to be present at the said place and he has in a coherent manner described as to how the injuries were caused on the person of the deceased. It was Dharamvir, appellant who gave 4/5 blows on the person of the deceased while Sunil had caught hold of him. Provisions of Section 34 of the Indian Penal Code qua Sunil will clearly be attracted because it was not being disputed that injury No. 1 was sufficient to cause death in the ordinary course of its nature.
26. All the same learned Counsel for the appellant urged further that there was no blood noticed by the Investigating Officer when knife was recovered while the Central Forensic Scientific Laboratory had found the same and that makes the matter suspicious. Even on this count we find little on the record what the appellant is urging. He took the police party to the park and got the knife recovered from the bushes in the park. The sketch of the same was drawn. It was converted into a sealed parcel and taken into possession. The Investigating Officer too makes a similar statement in this regard. If there were traces of blood which had not been noticed necessarily does not imply that the report of Central Forensic Scientific Laboratory in this regard must be rejected. The scientific test may bring forth what may not have appeared to the naked eye. Therefore, even this contention is totally devoid of any merit.
27. On totality of facts and circumstances the appeal must be held to be without merit. Consequently, it must fail and is dismissed.