Delhi High Court
Ajay Goswami vs State on 26 April, 2011
Author: S.Ravindra Bhat
Bench: S. Ravindra Bhat, G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON: 17.03.2011
PRONOUNCED ON:26.04.2011
CRL.A.67/1998
AJAY GOSWAMI ...... APPELLANT
Through : Mr. Mohit Mathur with Mr. Shikhar Sareen, Advocates
VS.
STATE ....... RESPONDENT
Through : Mr. Jaideep Malik, APP for the State.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT MR. JUSTICE G.P. MITTAL
1. Whether the Reporters of local papers YES may be allowed to see the judgment?
2. To be referred to Reporter or not? YES
3. Whether the judgment should be YES reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT %
1. This judgment will dispose of an appeal against the judgment and order of the learned Addl. District and Sessions Judge (hereafter "Trial court") dated 16.01.1998 and the sentence imposed upon the Appellant on 20.01.1988. By the impugned judgment, the appellant was held guilty of committing offence punishable under Section 302 IPC, and sentenced to undergo life imprisonment as well as pay Rs. 1000/- as fine, in default of which to undergo Rigorous Imprisonment for one month.
2. The prosecution alleged that on 07.06.1993, at about 6.15 AM, PW-3, PW-4 Sunil Sagar and PW-5 Inderpal were going for a morning walk. While passing through Mandoli Road, Ram Crl.A.67/1998 Page 1 Nagar, Near Tafsil Bakery, they saw the appellant and another boy with him, in front of the appellant's house, at a distance of 10-15 paces. It is alleged that the Appellant was armed with a knife. The appellant allegedly gave a knife blow to Virender Kumar and when they (PW-3, 4 and
5) moved towards the appellant, he dragged the victim inside his house and shut the door. The prosecution alleged that these witnesses informed Virender's family and then reached the appellant's house when they were informed that the injured had been removed to the GTB Hospital, where they went and learnt about his death.
3. The police was informed about the events; it was alleged that a rukka was prepared and some policemen reached the spot and proceeded to investigate the incident. The appellant was arrested for committing the crime. He was subsequently charged with the offence; he entered the plea of not guilty and claimed trial. The prosecution relied on the testimony of 22 witnesses, which included PW-3, 4 and 5, all ocular witnesses. PW-12, Dr. Anil Kohli had examined the deceased; he proved the Post Mortem Report during the trial. The appellant examined two defence witnesses, which included his father, Rajbir Singh, DW-2. After considering the evidence and materials on the record, the Trial Court, by the impugned judgment, convicted the appellant and imposed the sentence. The judgment and order on sentence have been impugned in these proceedings.
4. Sh. Mohit Mathur, the Appellant's counsel submitted that since the prosecution case is premised on eyewitness testimony, it would be essential to consider the depositions of PWs 3 and 4 carefully since PW-5, the third alleged eyewitness had turned hostile. According to counsel, the said two eye witnesses PW-3 and 4 were unreliable and their depositions could not have inspired confidence to the extent that a finding of conviction could have been returned. It was submitted that PW-3, in his examination-in-chief, deposed that the incident took place in the morning and that the police had recorded his statement in the hospital soon thereafter around 10-11 AM. However, in the cross-examination, he deposed that the statement was recorded on the evening of 07.03.1993 at the spot. PW-3, it was emphasized, was clearly unfamiliar with the surroundings where the occurrence took place though claiming to be a regular in the sense that he used to take a morning walk with his friend in the area. His testimony revealed ignorance about the topography of the area, and various landmarks. Learned counsel pointed to the admission of PW-3 that he had no knowledge about Quality Bakery located near Tafsil Bakery, Crl.A.67/1998 Page 2 or about Yadav diary located opposite the appellant's house which used to sell milk from early morning 05.30 AM onwards. Furthermore, he was not sure about the number of bakeries between the Ambedkar Gate and the appellant's house; equally, he was unsure about the location of a tree in front of Tafsil Bakery and where the rickshaw pullers used to park their rickshaws and relax. It as further highlighted that even though PW-3 was accompanied by two others, they did not take any steps to stop the appellant who was allegedly assaulting Virender with a knife. Learned counsel argued that the entire topography of the area indicated existence of shops which included a dairy. Learned counsel stated that the deposition of this witness, i.e. PW-3 read with the testimonies of PW-4 and 9 indicated that they were related to the deceased and they had a motive in implicating the Appellant. It was also argued that a comparison of the examination-in-chief of PW-3 with that of PW-4 would indicate that the sequence narrated by both did not match. Whereas PW-3 stated that after witnessing the incident, he and the other eyewitnesses went to the deceased's house and thereafter to the appellant's house, PW-4 mentioned that they first rushed to the deceased's house, informed his mother about the incident, and then he went to his house and thereafter proceeded to the hospital with his (deceased's) parents. In his case, there was discrepancy in what is said in the examination-in-chief regarding the time and place where the initial statement under Section 161 Cr. PC. (hereafter "police statement") was recorded. In the examination-in-chief, he deposed that the statement was recorded at 10.00-10.15 AM in GTB Hospital whereas in cross-examination, he deposed that the statement was recorded by the police at about 10 - 11 am at the spot along with the statements of PW-3 and 5. Learned counsel pointed-out that both the witnesses had deposed about a crowd collecting near the appellant's house when they returned after informed the deceased's mother. It is submitted that this completely falsified their previous statement. Relying upon the prosecution exhibits PW-11/A, the scaled site plan and PW-20/A, it was argued that the depositions of both the eyewitnesses were contradicted by these documents, which established that the presence of no less than three shops in the immediate vicinity of the appellant's house as well as the location of Tafsir Bakery and Quality Bakery just in front of those premises.
5. Learned counsel submitted that the prosecution had initially sought to implicate DW-2, Rajbir, the appellant's father for his alleged involvement in the crime. Both PWs-3 and 4 had stated that the appellant's father Rajbir was present when the deceased was dragged inside his Crl.A.67/1998 Page 3 house. However, the prosecution omitted to follow-up its allegation and Rajbir was not charged for the offence. Furthermore, it is argued by the counsel, the evidence on record also revealed that Rajbir had taken the injured Virender to the hospital - a conduct inconsistent with the version given by PW-3 and 4 vis-a-vis his role. It is submitted that the involvement of Rajbir was sought to be established and connected with the seizure of Pajama Ex. PW-4/DB. The prosecution alleged that the seizure was made and PW-4 had also given his statement. However, in his deposition, PW-4 denied these facts upon being confronted. Learned counsel highlighted the fact that Rajbir, who had been initially charged for the offence as a co-accused, was in fact not sent up for trial. It is urged that the definite case of the prosecution has been disbelieved by the trial court as against co-accused Rajbir, in view of this benefit of doubt ought to have been given to the appellant and the trial court could not have recreated the prosecution version, nor is this permissible in law. Thus, submitted the counsel, the prosecution story was unreliable and could not have been the basis for convicting the appellant.
6. Learned counsel submitted that the evidence in the form of depositions and exhibits clearly point to ante-timing of the FIR and building up a false case. In support of this submission, reliance is placed upon Ex. PW-6/A and Ex. PX, statements of PW-6 and that of Sh. Madan Lal dated 08.06.1993, identifying Virender's body. It is pointed-out that these documents do not bear the First Information particulars, such as the number. Similarly, it is stated that Ex. PW-18/B, the Inquest report, records the name and other particulars of those witnesses, who identified the body. This document is dated 07.06.1993 and does not bear the FIR number. Learned counsel pointed-out that if one compares the exhibit 18/B with Ex. PX and Ex. 6/A, what is striking is that the identification of the body took place on 08.06.1993 whereas the names and particulars were allegedly furnished one day prior to that. It is also argued importantly that the appellant's name was omitted as an accused in the FIR, marked as Ex. 4/A in Column 5. This fact was confirmed by PW-1, who also conceded, in the course of his deposition that the index of the case diaries of 7-6-1993 to 11-06-1993, annexed along with the FIR No. 120/1993 mentioned that Case Diary was not there and the column in S. Nos. 1 to 4 were blank. A copy of the same was also taken on record as PW-1/DA.
7. Learned counsel lastly submitted that the prosecution did not prove that the Special Report was delivered to the concerned Magistrate in the form of any document marked as an Crl.A.67/1998 Page 4 exhibit in the evidence. It is urged that the FIR in the matter, i.e. No. 120/93 (Ex. PW-4/A) was ante timed to suit the needs of the prosecution. The counsel submits that the next FIR after FIR No. 120/93 was registered after three days indicates deliberate delay. Further, Constable Ashok Kumar (PW-16) who has deposed about delivering the special reports to the Magistrate concerned and at the office of the DCP and the then to the Police Head Quarters, ITO has not been able to prove any endorsement on the FIR. No special report to the MM or superior officers is proved by the Public Witnesses.
8. Commenting next on the nature of injuries, learned counsel relied upon Ex. PW-12/A and the deposition of the witness, Dr. Anil Kohli, PW-12. Here it is argued that the nature of the injuries found on the deceased were incompatible with the weapon recovered by the prosecution. Learned counsel argued that according to the medical evidence, particularly PW-12, there were three spindle-shaped injuries and one blunt object injury on the dead body. The spindle-shaped injuries were caused by a double-edged weapon or a sharp double edged weapon, which, in the words of the doctor - "would be higher from the centre on both sides. I mean by one angle of the wound was more acute than the other means that the weapon was double edged but one edge was not as sharp as the other." It was submitted that in contrast, the knife, Ex. P-1 was a single-edged weapon. If these facts were taken into consideration, there was no question of the appellant being implicated for the offence, as the injuries found on the deceased did not correspond with those that could be inflicted from the recovered single edged knife.
9. The appellant's counsel urged that PW-22 (Insp. K.L. Meena) deposed in Court about having sent the knife recovered (Ex. P-1) at the instance of the accused and alleged to be the weapon of offence, to the postmortem doctor who after inspecting it orally stated that Ex. P-1 could not be linked with the injuries. PW-22 has deposed in Court that on 20.08.1993, he had sent the pulanda containing the knife to the doctor for his opinion, although no record of this is available either in the judicial file or in the police file. The counsel places reliance on Manpreet Singh v. State, 108 (2003) DLT 551 and Kartarey v. State of U.P., 1975 SCC (Cri) 803 where the Supreme Court has emphasized the need to show the weapon of offence to the Doctor/Expert and elicit their opinion in order to associate it with the injuries sustained and by the victim.
10. The counsel for the appellant submitted that recovery of the knife and the disclosure, Ex. PW-5/B were fabricated by the police. It was pointed out that the PW-9 deposed in Court that the Crl.A.67/1998 Page 5 accused's disclosure statement was recorded by the police after the alleged recovery of the knife. PW-9, in his deposition, has stated that the accused disclosed in his presence that he could get recovered the knife from the underground drainage in his house and that one churri was with his father but the police did not record this at that time and did so later, only after the recovery of the knife. In this background, it is urged, that neither the recovery nor the disclosure statement can be believed.
11. The counsel next argues that the prosecution version does not explain the fact that the appellant's father (Rajbir, DW-2) took the deceased to G.T.B. Hospital. DW-2, who was earlier a co-accused, but later discharged, deposed in Court that he took the deceased to the hospital, before leaving for his school. This was not disputed by the prosecution during DW-2's cross-examination. This finds further support from the MLC (at Pg. 431 of the Trial Court record), where the name of DW-2 is recorded as the person who brought the deceased to the hospital and the deposition of DW-1. PW-3, Rakesh Kumar too admitted to seeing Rajbir at the GTB Hospital gate of and coming to know that the deceased was brought there by some residents of the appellant's house, in his cross-examination. All these, according to the appellant's counsel points to the improbability of the prosecution version, where this fact was completely ignored.
12. Counsel also points out that the prosecution failed to establish the motive for the offence. Though PW-7, Maya Devi deposed in Court that 15-20 days prior to the incident, an altercation occurred between her son (deceased) and the appellant, when the deceased tried to stop him from molesting a girl of the mohalla, the counsel submits that she did not provide any particulars for the alleged motive and her conduct during the cross-examination is highly suspicious, and is as such lacking credibility. This witness has, in her cross-examination, deposed as under:
"I do not know the name of that girlwhich was allegedly teased by the accused, 15/20 days prior to the occurrence. I also do not know whose daughter she was as well as I donot know her house number. She was not teased or molested in my presence. I do not know the place where the quarrel had taken place between my son and the accussed on this issue as I had not been chasing them. My deceased son had told me about this. We had not lodged any report about the said incident neither myself, nor my son deceased, or any other members of the family or mohalla; as it was a petty quarrel. I had not tols these facts to the police, with regard to the teasing of the girland consequently quarrel taken place between my deceased son and accused."
Crl.A.67/1998 Page 6 The counsel also submits that the the case of the prosecution that the appellant and his companion dragged the deceased inside the house remains unproved, as PW-20 (Insp. Tej Pal Singh, the then SHO Mansorovar Park P.S.) has deposed that he did not find any blood stains inside the house of the accused.
13. Pointing at the discrepancies in the prosecution case the counsel submits that the Death Report (Ex. PW-18/B) which was prepared and signed on 07.06.1993 mentions the names of Lekh Raj (PW-6, deceased's chacha) and Madan Lal (deceased's mausa) as the persons who identified the body. Whereas, PW-18 (S.I. Jai Singh) and PW-10 (Const. Satish Kumar) have deposed that the post mortem examination could not be conducted on 07.06.1993 as there was no one to identify the body. This is in stark contradiction to the statement of PW-4 (Rakesh Sagar) who has deposed in his cross-examination that on 07.06.1993 when he went to the GTB hospital, he met deceased's uncle, who told him that the police required him at the spot of the occurrence. The conduct of the Police in not asking PW-3, PW-4 and PW-5 to identify the body, when they claimed to be the eye-witnesses and PW-5 was also the informant and they have joined the investigation at every stage, is also questioned by the appellant. Again, the alleged weapon of offence, i.e. knife (Ex. P1) was never sent for CFSL examination. The CFSL report (Ex. 22/B and 22/C) does not mention about the knife being examined.
14. It is argued that PW-19 (Const. Puran Chand) deposed to sending five pulandas to CFSL Lodhi Colony, which is mentioned in the CFSL report too, but the Malkhana Mohrrar (PW-14, HC Kishan Singh) deposed about having received seven sealed parcels, which included the knife, from SHO, Mansarovar Park, which were later sent to CFSL for examination. Furthermore, the Malkhana Register extract (Ex. PW-14/A, at Pgs. 355 to 363 of the trial court record) records the date of deposit of the post mortem report dated 08.06.1993 as 07.06.1993, i.e. a day prior to the making of the report. The said entry in the register has been signed by the SHO Mansarovar Park, as well as the MHC. Furthermore, the CFSL form has not been exhibited, nor is it placed on record. All this only points to the fabrication of records by the police.
15. The counsel, points at the contradictions in the statements of the various prosecution witnesses. It is pointed out that Insp. K.L. Meena (PW-22) has deposed that the investigation in the case was handed over to him on 10.06.1993 by order of the DCP, whereas PW-20 (Insp. Tej Crl.A.67/1998 Page 7 Pal Singh) has deposed that the investigation was handed over on 08.06.1993. Further, PW-3 has deposed that PW-22 was carrying out the investigation on 07.06.1993. PW-3 also stated that after informing them about the occurrence he accompanied the deceased's mother and other relatives to the spot, whereas PW-7 (mother of the deceased) stated that on learning about the incident she fell unconscious and did not move out of the house between 07.06.1993 to 30.08.1993.
16. PW-9 (Rakesh Sagar) deposed that on 11.06.1993 at around 10/11 AM two police persons claiming to be from the special staff visited him and informed him that the appellant had been arrested; they asked him to accompany them to see the accused. He further deposed that on reaching the office of the special staff he was made to wait for some time and in the meantime Inder Pal was called inside, thereafter when he was called he saw the police interrogating the accused and that accused deposed in his presence that he could get the knife recovered. Further, in his cross-examination, this witness has stated that he stayed in the office of the special staff for about an hour. PW-15 (HC Shyam Sunder) deposed that on 11.06.1993 he reached the Court at 12 noon, where the accused was already present and that after obtaining the due permission, the accused was interrogated inside the Court premises for about 15-20 minutes.
20. Lastly, PW-20 (Insp. Tej Pal Singh, the then SHO Mansarovar Park P.S.) deposed that he did not get the place of occurrence photographed, but PW-21 (Const. Ravinder Singh) was examined as the photographer who has deposed about taking four photographs at the place of occurrence on 07.06.1993, viz. Ex. PW21/1, 21/2, 21/3 and 21/4 and further that, the SHO, i.e. PW-22 recorded his statement at the spot.
21. The counsel submits that the trial court has failed in its duty in not giving due credence to the defence witnesses and rejecting the same without appraising the probability of their testimonies, and that their testimony should have been treated at par with the prosecution witnesses, especially in view of the fact the DW-2, Rajbir, who was made an accused by the prosecution, was later discharged by the Court.
22. The learned APP argued that the findings rendered by the Trial court are unimpeachable. It was submitted that even though PW-5 turned hostile, there is no reason to doubt the credibility Crl.A.67/1998 Page 8 of PW-2 and PW-4, who were the other two eyewitnesses. They deposed about the attack by the Appellant, the immediate events which followed it, the removal of the deceased to the hospital, the police recording their statements. Their testimonies corroborated each other, and were in conformity with the events as they unfolded. It was argued that the court should not be swayed by minor lapses in witnesses' memories, such as the inability of PW-3 to identify bakeries in the vicinity of the place of occurrence, or existence of shops. The APP also argued that the possibility of one or the other landmark, such as the diary, not existing, at the time the witness deposed, could not be ruled out. Similarly, it was argued that the two eyewitnesses had deposed why they could not intervene and save the deceased; they had stated that the appellant was a local tough, and they feared for their lives or safety, since he was attacking the deceased with a knife.
23. Contesting the Appellants' arguments about ante timing of the FIR, it was urged that all the materials showed that the incident took place in the early morning, and the police reached the spot fairly early. The FIR too was recorded immediately. It was submitted that often, doctors refuse to conduct postmortem the same day, due to rush of work; this appears to have happened on 07-06-1993. Consequently, the postmortem was carried out on the next day. The mere circumstance that the inquest report, or the request for postmortem contained the names of the deceased's relatives, meant nothing, because their names were known to the prosecution when the documents were made.
24. It was submitted that the Appellant needlessly cast a doubt about the so called discrepancies in statements recorded by the police, as narrated by the eyewitnesses. It was submitted that there is no confusion on this score, because the eyewitnesses - at different places
- stated about having been questioned by the police, and their statements having been recorded in the hospital, and at the spot. These were natural witnesses, and even if the police could not establish motive, so long as their deposition was credible, and had withstood the cross examination, the Appellant's conviction was sound and justified. It was further argued that there was no reason for the prosecution witnesses to depose falsely, nor did the Appellant allege such to be the case.
Crl.A.67/1998 Page 9
26. The above narrative shows that the attack upon the deceased, according to the prosecution, took place in the early hours of the morning; PW-3, PW-4 and PW-5 witnessed the incident, whereby the deceased was stabbed by the Appellant. PW-5 did not support the prosecution story at all. Initially, the prosecution also appears to have suspected the Appellant's father, because he was named as an accused. Later, however, he was not charged for having committed the offence.
Recording of the First Information Report and attendant circumstances
27. The Appellant has, as an important limb of his argument, submitted that the FIR was ante timed, and relied on several circumstances in support of this. The prosecution, on the other hand, submits that the FIR was recorded at the earliest opportunity, and that the police visited the spot, and also recorded statements of the eyewitnesses, without any delay.
28. The importance of recording the first information report, on time, was underlined, in Mehraj Singh v State of UP 1994 (5) SCC188, in the following terms:
"FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an after thought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR, was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr. P.C. is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in embryo and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ate timed to give it the colour of a promptly lodged FIR."
Crl.A.67/1998 Page 10
29. Now, the testimonies of PW-3 and PW-4, is that after witnessing the incident, they informed the family of the deceased, as well as their families. They also went to the hospital, where the deceased had been taken. However, there is nothing on the record to suggest who had actually removed him to the hospital. DW-2 Rajbir, the appellant's father, deposed having taken the deceased to the hospital; he was not contradicted on this. The prosecution states that the incident was reported on wireless, and DD No. 2A was recorded at 7:40 AM, on the day of the incident. This has been exhibited as PW-17/A. It is alleged that the FIR was recorded later, at 9:20 AM; it was produced as Ex. PW-4/A. The first informant in the case was PW-5, Inderpal. The prosecution relies on Ex. PW-18/A forwarded by the Sub Inspector, who visited the site, and later the hospital. This letter, timed at 9:00 AM, briefly mentions the incident; it intimates the nature of the incident, as well as the offence.
30. Now, intriguingly, PW-3 mentions having returned to the spot at 7:30 AM; the police had reached the spot soon thereafter. Both the witnesses mention that several persons went to the hospital. The identity of the assailant was known to PW-3 and PW-4. The police too had visited the hospital. Yet, PW-18/A does not mention or name the Appellant, as the accused. Most importantly, the FIR does not name the Appellant. Inderpal, PW-5, denied making any statement implicating the Appellant.
31. Ex. PW-6/A and Ex. PX, are statements of PW-6 and that of Sh. Madan Lal dated 08.06.1993, identifying Virender's body. These exhibits do not bear the First Information particulars, such as the number. Likewise, Ex. PW-18/B, (the Inquest report), records the name and other particulars of those witnesses, identifying the body of Virender. This document (dated 07.06.1993) too does not reveal the FIR number. Ex.PW-18/B, Ex. PX and Ex. 6/A, read together, reveal is that while the identification of the body took place on 08.06.1993, the names and particulars of those identifying the body were furnished one day prior to that.
32. PW-1, admitted in the course of his deposition, that the index of the case diaries of 7-6-1993 to 11-06-1993, annexed along with the FIR No. 120/1993 mentioned that Case Diary was not there and the column in S. Nos. 1 to 4 were blank. A copy was marked as PW-1/DA. The next FIR after FIR No. 120/93 was registered after three days- this indicates deliberate delay. Another very important aspect is that the prosecution did not prove that the Special Report Crl.A.67/1998 Page 11 was delivered to the concerned Magistrate in the form of any document marked as an exhibit in the evidence. PW-16 has merely deposed to delivering the special report to the Magistrate concerned and at the office of the DCP and later to the Police Head Quarters. However the prosecution did not prove any endorsement on the FIR. The importance of complying with Section 157 of the Code of Criminal Procedure, and the need for the prosecution to establish it through evidence, was underscored by the Supreme Court in Motilal v State of Rajasthan 2009 (7) SCC 454:
"...There is a purpose behind the enactment of Section 157 of the Code of Criminal Procedure 1973 (in short "the Code"). The statutory requirement that the report has to be sent forthwith that itself shows the urgency attached to the sending of the report. In a given case it is open to the prosecution to indicate reasons for the delayed dispatch or delayed receipt. This has to be established by evidence."
Two Division Benches of this Court too, have emphasized the imperative nature of this provision (Ref. Ramesh Kumar v Delhi Administration 1990 Crl. LJ 255 and Mahabir Singh v State 1979 Crl. LJ 1159).
33. In view of the foregoing reasons, the facts, (the FIR number being omitted in two documents, and also the identification being made on 08-06-1993, though the inquest report showing the names of those identifying, as on 07-06-1993 as well as lack of proof that the FIR was sent to the magistrate under Section 157) if seen together with the lack of identification of the accused in the FIR, cast a cloud over the timing of the FIR, and raise doubts as to whether it was indeed recorded at the time it is alleged to have been, by the prosecution.
Recovery of knife
34. In this case, the recovery of the knife is alleged to have taken place on 11-06-1993. PW-9 Rakesh Sagar is one of the witnesses who spoke about it. This weapon is alleged to have been recovered from a drain pipe, in his house, which was dismantled by the Appellant. PW-5 Inderpal is also alleged to have witnessed the recovery. PW9 also deposes that the statement was recorded subsequent to the recovery, which is contrary to PW-15/B and PW-5/B. Crl.A.67/1998 Page 12
35. Now, the postmortem report states that the wounds on Virender's body could have been caused only by a double edged weapon. In fact, the wounds are described as "spindle shaped". PW-4, who is also alleged to have witnessed the recovery on 11-06-1993, mentions about the knife. PW-4 claimed to identify the knife (a "button dar" one) during his deposition. PW-12, the doctor who conducted the post mortem, states, inter alia, as follows:
"I saw four injuries on the person of the deceased and three injuries stab injuries were in spindle shape and one injury was a blunt object. Spindle shape injury was which is caused by double edged weapon and sharp double edged weapon and the said weapon would be higher from the centre on both sides. I mean by one angle of the wound was more acute than the other means that the weapon was double edged but one edge was not as sharp as the other. In the present case, all the injuries except injury No. 4 have been caused by a double edged weapon and not single and sharp edged weapon. After receiving the stab injuries in this particular case, the deceased could have walked or run slowly for about 15 to 20 paces.."
Interestingly, apart from the above deposition of PW-12 there is another circumstance, which casts a cloud on the recovery of the weapon, which is that when the knife was to be shown to PW-4, the court noted, during the course of evidence, that date on the the pulanda appeared to have been overwritten, on a plaster; the mark of the person sealing it was not legible. Furthermore, the seal was not intact.
35. If the facts noticed in the preceding paragraph are also seen in conjunction with the circumstance that PW-9 had no connection with the police, as he was not eyewitness to the incident, but was, by his admission, asked for the first time, to witness a recovery, the weapon recovery becomes suspect. The evidence of PW-3, PW-4 and PW-9 establishes that the latter two (PW-4 and PW-9) are cousins, being sons of two brothers. The Appellant had suggested to each of them, that the deceased was the nephew (bhanja) of the fathers of PW-4 and PW-9. Although they denied it, the fact remains that the prosecution has not explained the role of PW-9 who was randomly, and inexplicably asked to witness the seizure of a crime weapon. Intriguingly, the weapon was never sent to CFSL. Therefore, the court is of the opinion that cumulatively viewed, the above evidence is unconvincing regarding recovery of the knife; certainly it was not the weapon used to kill the deceased Virender.
Deposit of the articles, after their seizure Crl.A.67/1998 Page 13
36. The Malkhana register extracts (Ex. PW-14/A) reveals that the Post mortem report dated 08-06-1993, is alleged to have been deposited a day before, i.e on 07-06-1993. The SHO's signature is shown at the foot of the relevant entry; in column 3 too, the same date is shown, with the SHO disclosed as the officer depositing the case property. Apart from this anomaly PW-14, the Malkhana Moharrar, states that seven pullandas were deposited. However, PW-19 contradicts, and says that five pulandas were deposited. Furthermore, the depositions of PW-14 and the malkhana register extracts show that even though the articles seized were to CFSL on 20th August, 1993, no entry is found in the extracts.
37. In the opinion of the court, the evidence pertaining to deposit of seized articles in the malkhana, which include the deposition of PW-14 and the extracts of the relevant register, disclose a suspicious picture. A document (Post mortem report) is said to have been deposited before it was brought into existence. Similarly, the articles seized are supposed to have been sent to the CFSL, without any record of it, nor when they were sent back. Therefore, the prosecution version that the seized articles were deposited safely in the malkhana, cannot be believed.
Testimony of prosecution witnesses
38. The main evidence, which persuaded the Trial Court to find the appellant guilty, as charged, was the eyewitness testimony of PW-3 and PW-4. The appellants have attached their credibility, with a view to say that they were not eyewitnesses, but that at best they might have seen the deceased running and collapsing near the Appellant's house. In other words, the Appellant argues that these witnesses had not seen the attack, but were made to say so. A number of contentions have been made by the Appellants' counsel in this regard. One of them was that the witnesses had not intervened, to save the deceased. On this aspect, the court is of the opinion that subjective reactions to facts like witnessing attacks on another, are neither typical nor predictable. They vary from circumstance to circumstance, and person to person. Here, the witnesses deposed that the assailant was armed with a knife, and they did not want to take any risks, or were afraid. That explanation is perfectly plausible, and reasonable. However, there are some more, and substantial questions which arise from their testimonies, and those of other witnesses. These are:
Crl.A.67/1998 Page 14 (1) The sequence of the attack, described by PW-3 and PW-4, vary in regard to the fact that
whereas the former said that after seeing the incident, both went to the deceased's house, and then to the house of PW-3, this is not corroborated by PW-4.
(2) PW-3 stated that after hearing about the attack on Virender, his mother and other people from the neighborhood went to the spot. However, PW-7 said that she fell down unconscious after hearing the news. In cross examination, she clarified that she remained at home from 07-06-1993 to 30-8-1993. During that period, the police had visited her 7-8 times and recorded her statement.
(3) Neither PW-3 nor PW-4 were the first informants; the FIR alleges that the information was provided by PW-5, who disclaimed having witnessed the incident, in the manner alleged by the prosecution. These, coupled with the absence of the accused's name in the FIR, also cast a cloud of suspicion on the version of the two eyewitnesses.
(4) The witnesses mentioned that PW-22 was present as the investigating officer; the said witness (PW-22, K.L. Meena) on the contrary, deposed to having been entrusted with the investigation later, on 10th June, 1993.
(5) PW-3, and to a lesser extent, PW-4, are unfamiliar with the neighbourhood, though they claim to belong to the same area, and talking daily early morning walks. A number of landmarks were in fact not known to PW-3 - evident from a comparison of his testimony with the sketches placed on the record by the prosecution. This also applies to PW-4, to a lesser degree.
(5) PW-4 contradicted the prosecution version that his statement (Ex. PW-4/DB) was recorded on 30-08-1993.
(6) PW-4 deposed that he was sent by the deceased's uncle from the hospital. However, PW-10 and PW-11 state that no relative was available in the hospital, on the day of the incident.
(7) PW-9 (whose role has been commented upon previously) deposed to having been called by the Police on the concerned day, when the Appellant was arrested, at around 10-11 AM, when he was present in the police station. However, PW-15 stated that the police reached the court at 12:00 noon, when the permission to interrogate the accused/Appellant was obtained.
Crl.A.67/1998 Page 15 (8) The eyewitnesses mention that 30-40 people had entered the house of the Appellant. Yet,
no attempt was made to secure the version or the testimony of anyone of them. Also, there is no corroboration as to whether there were blood stains or marks in the Appellant's house. The prosecution version is that some policemen had reached the spot, on receiving the intimation in the morning. Even these policemen do not appear to have attempted to secure the evidence. On the contrary, PW-20 stated that he did not find any blood stains in the house.
(9) The prosecution is silent about how the deceased's was removed to the hospital, and the identity of the individual doing so. On the other hand, the Appellant relies on the testimony of DW-2 Rajbir, his father, who positively deposed having taken the injured Virender to the hospital. If one looks carefully, it is further seen that this witness was originally investigated, and implicated for having committed the offence; however, charges were dropped. It would be appropriate here to recall the judgment of the Supreme Court in Dudhnath Pandey v State of UP AIR 1981 SC 911, where the weightage to be given to defence witnesses was indicated as follows:
"Defence witnesses are entitled to equal treatment with those of the prosecution. And Courts ought to overcome their traditional, instinctive disbelief in defence witnesses."
The prosecution has not mentioned or proved as to who took the deceased to the hospital; there is nothing to impeach the credibility of DW-2 on this aspect. This also sows suspicion on the prosecution version.
39. These discrepancies cannot be termed as minor or inconsequential. They strike at the root of the prosecution allegations. Seen together with the fact that the FIR was ante timed, and the recovery of articles was not proved, nor was the weapon produced, used for committing the offence, they are fatal to the prosecution. Furthermore, the prosecution has also been unable to establish any motive. It is of course, settled law that if ocular evidence of a crime exists, motive becomes secondary. However, in this case, PW-7 stated that the Appellant had molested a girl, but was unable to give any further fact. PW-3 similarly made a vague and generic allegation about the Appellant being a local "tough". However, beyond these statements, no material to show why the Appellant could have murderously attacked the deceased was shown to the court.
Crl.A.67/1998 Page 16
40. This court is of opinion that in the above conspectus of facts, the finding of guilt recorded by the learned Additional Sessions Judge, against the Appellant, cannot be sustained. The Appeal, therefore has to succeed. The bail and surety bonds furnished pursuant to the court's order made previously are therefore discharged. The appeal is allowed in the above terms.
(S.RAVINDRA BHAT)
JUDGE
(G.P. MITTAL)
APRIL 26, 2011 JUDGE
Crl.A.67/1998 Page 17