Delhi District Court
State vs Sushil on 28 March, 2007
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IN THE COURT OF SH. NARINDER KUMAR
ADDL SESSIONS JUDGE: FAST TRACK COURTS
ROHINI: DELHI
Session case No: 02/06 dated 16.01.2006
Date of decision: 28/03/2007
State V.
1. Sushil
S/o Randhir Singh
R/o H.No. 126,
Village Khera Kalan,
Delhi
2. Ashok
S/o Sh. Randhir Singh Rana
R/o House No.126,
Village Khera Kalan,
Delhi-82
3. Surender
S/o late Sh. Randhir Singh
R/o H.No. 126,
Village Khera Kalan,
Delhi
FIR No.359/93
PS S.P. Badli
U/s. 302, 307 r/w Section-34 IPC
JUDGMENT
This is case alleging commission of offences u/s -2- 302 IPC and 307 IPC. Occurrence took place on 30/08/1993 at about 10 p.m. at Village Khera Kalan in which Narender and Raj Kiran suffered injuries. Narender succumbed to the injuries. Case was registered on the statement of Balwant Singh, uncle of Narender and Raj Kiran, one of the alleged eye witnesses.
2. It is case of prosecution that on 30.08.93 at about 10 pm, Raj Kiran was present in the compound of his house situated in Village Khera Kalan. At that time, his younger brothers Narender and Om Singh and their uncle Balwant were also present there. All of them heard someone calling Raj Kiran. Raj Kiran sent his younger brother Narender but at the same time, he himself also got up and went out of his house. Sushil Kumar (accused) was seen pulling Narender out of the house by his hand. Surender took Narender in his grip from his backside. Sushil Kumar accused stabbed Narender. Sushil Kumar accused exhorted Ashok to stab Raj Kiran whereupon Ashok stabbed Raj Kiran in the middle of his abdomen,right side of his waist and on his buttock. As a result of the stab wound, Raj Kiran fell down and became unconscious. The occurrence was witnessed by Om Singh and Balwant Singh. Om Singh raised alarm for being saved. Accused persons then ran away from the spot towards their house. Many persons from the public also gathered there.
3. About 10/15 days prior to the aforesaid occurrence, -3- at about 4/5 pm, Raj Kiran and his brother Om Singh were present near their house. Sushil accused came towards them driving a jeep at a high speed. Om Singh and Raj Kiran had a narrow escape. Complainant party went to house of Sushil accused to lodge protest with his father Randhir Singh. Sushil accused was scolded by his father. On the same day, Sushil accused threatened to deal with them one by one.
4. On 30.08.93 at about 10/10.30 pm, Inspector Harshvardhan, SHO, PS S.P. Badli received information on wireless that an incident of stabbing had taken place in Village Khera Kalan. Thereupon, he accompanied by Ct. Ramesh Kumar reached the spot i.e. near the house of Baldeva. SI Darshan Lal and Ct. Satanand were also found present there. The SI and the Constable had reached there on receiving call of quarrel at the house of Ram Kishan. On reaching the spot, they learnt that two persons had been removed to hospital by PCR staff.
5. Inspector Harshvardhan left Constable Ramesh at the spot to guard it and himself accompanied by SI Darshan Lal and Ct. Satanand reached Hindu Rao Hospital and from there collected MLC of Narender. As per MLC, Narender had been declared brought dead. Raj Kiran, injured was allegedly declared by the doctor unfit to make statement. Balwant Singh met the Inspector at the hospital and made statement. The -4- Inspector appended endorsement whereupon ruqqa was sent from the hospital through Ct. Sadanand and present case was registered.
6. On return to the spot, the Inspector collected sample of blood from there, turned it into a parcel and sealed the same with seal bearing impression HV. The sample of blood was then seized vide a memo. The Inspector prepared rough site plan of the place of occurrence as pointed out by Balwant Singh. From the spot, the Inspector once again visited Hindu Rao Hospital and enquired about fitness of Raj Kiran to make statement. Still Raj Kiran was unfit to make statement.
7. Balwant Singh PW produced before the Inspector one underwear of Raj Kiran. The underwear was found blood stained and having a cut. It was turned into a parcel, sealed with the seal bearing impression HV and then taken into possession vide a memo.
8. It is also case of prosecution that on 30.08.93, Dr. R. Bhagi medico legally examined Narender and Raj Kiran at Hindu Rao Hospital and opined that sharp weapon was used in causing injuries on their person. In this respect, reports were given by the doctor. Lateron, Dr. V.K. Sehdev of Santom Hospital appended endorsement in MLC declaring Raj Kiran unfit to make statement.
9. On 31.08.93, the Inspector once again reached -5- Hindu Rao Hospital, carried out inquest proceedings in respect of dead body of Narender, recorded statements of Ram Kishan and Radhey Shyam in respect of identification of dead body; prepared inquest proceedings and submitted request for conducting autopsy on the dead body.
10. Dr. Ashok Jaiswal conducted autopsy on the dead body of Narender and prepared report. In the opinion of the doctor, all the injuries were antemortem in nature; injury No.1 and 2 were caused with a sharp edged weapon; injury No.3 and 5 were caused by fall and friction against hard surface; and injury No.2 was sufficient to cause death in the ordinary course of nature. In the opinion of the doctor, Narender died due to haemorragic shock consequent to the injuries to the abdominal viscera.
11. Ct. Mahender Singh delivered special reports to senior police officers and learned Metropolitan Magistrate. Constable Satanand produced two sealed parcels and sample seal of the seal of Dr. B. Singh, before the Inspector who seized the same vide a memo and in turn deposited the same in the malkhana. The dead body of Narender was delivered to the relatives of the deceased.
12. It is further case of prosecution that in the evening of 31.08.93, the Inspector was present on G.T. Road, within the area of PS S.P. Badli. He received secret information to the -6- effect that Sushil accused was present at the railway station, Khera Kalan and was about to flee away. Thereupon, the Inspector accompanied by SI Darshan Lal, Ct. Satanand and secret informer reached railway station, Khera Kalan, apprehended Sushil accused at the pointing out of secret informer. He was arrested and his personal search memo was prepared. He also made disclosure statement before the Inspector and in pursuance thereof he got recovered a knife from the grass under a bench at the railway station, Khera Kalan. The Inspector prepared rough sketch i.e of the knife, turned the knife into parcel and seized the same vide a memo. The Inspector visited Hindu Rao Hospital thrice/four times to record statement of Raj Kiran but every time he was found unfit to make statement. It was on 13.09.93 that the Inspector recorded statement of Raj Kiran after visiting Santom Hospital.
13. On 15.10.93, the Inspector got dispatched sealed parcels lying deposited with MHC(M), to CFSL, Chandigarh through Ct. Jaswant Singh. On analysis, report was received.
14. On 30.09.93, SI Manohar Lal visited the spot, where Om Singh was present, and he prepared scaled site plan of the place of occurrence. On completion of investigation, challan was put in court.
15. After compliance with provisions of Section 207 CrPC, case came to be committed to Hon'ble Court of Session. -7-
16. Prima facie case having been made out, charge for an offence U/s. 302 IPC was framed against Sushil accused on 16.09.99 whereas charge for an offence U/s. 302 read with Section 34 IPC was framed against Ashok Kumar and Surender Kumar accused on 09.11.2005. Since accused persons pleaded not guilty and as such prosecution was called upon to lead its evidence.
17. During trial, when the case was listed for final arguments, on 14.03.2007, additional charge for an offence U/s. 307 IPC was ordered to be framed against Ashok Kumar and for the same offence with the aid of Section 34 IPC against Sushil and Surender accused.
18. In order to prove its case, prosecution examined following 16 witnesses :
PW1 Ram Kishan, PW3 & also PW14 Radhey Shyam deposed about identification of dead body of their nephew Narinder at dead house.
PW4 Om Singh, PW5 Raj Karan and PW12 Balwant Singh are witnesses to the occurrence.
Medical evidence is available in the statements of PW6 Dr. R. Bhagi, PW7 Dr. Ashok Jaiswal and PW8 Dr. V.K. Sehdev PW9 SI Manohar Lal, Draftsmand, deposed about preparing of scaled site plan Ex.PW9/A. -8- PW11 Ct. Mahender Singh is the witness who delivered copies of FIR to Joint Commissioner of Police, DCP, ACP and Ld. MM at their respective residences.
PW2 Kartar Singh, deposed about his visit to the house of Baldeva after the occurrence. He is also a witness to recovery of knife at the instance of Sushil accused.
PW10 HC Ramesh Kumar, PW13 SI Dharambir, PW15 HC Satanand and PW16 Sh. Harshvardhan, ACP deposed about investigation part of prosecution story.
19. When examined U/s. 313 CrPC, all the accused persons denied all the incriminating circumstances appearing in evidence against them and claimed false implication. They opted to lead evidence in defence.
Plea put forth by Surender accused is as under:
"On the given date, time and place, I was not at all present in the village. On 30.08.93, I left my client at his house in Panchsheel Park, New Delhi, at about 11 p.m. and then I returned to my taxi stand i.e. Palika Place, Panchkuiyan Road, New Delhi. In this respect, some documents were seized by the police during investigation."
In defence, accused persons have examined DW1 Rajbir Singh and DW-2 Smt. Shanti.
20. Arguments heard. File perused.
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21. On behalf of the State, it has been argued that from the statements of the injured PW4,PW5 and that of their uncle Balwant Singh (PW12) coupled with the medical evidence prosecution case stands fully established, when there was motive to commit the crime.
Motive
22. Case of prosecution is that 15/20 days prior to the present occurrence, while Om Singh PW4 was present in the street in front of his house, Sushil Kumar accused drove his jeep at such a fast speed that Om Singh had a narrow escape, whereupon Balwant Singh and his brother Tara Chand, both uncles of Om Singh accompanied by other persons, went to the house of Sushil Kumar accused and lodged protest with father of Sushil Kumar. At that time, father of Sushil Kumar begged pardon and at the same time reprimanded Sushil Kumar, but he in turn threatened to see them one by one.
While appearing in Court as PW4 Om Singh deposed that at the time he had a narrow escape, Raj Kiran was also present there by his side. PW5 Raj Kiran also deposed about this fact. But when we advert to statement Ex.PW12/A attributed to Balwant Singh, there it does not stand recorded that Raj Kiran was also present by the side of Om Singh at the time Sushil Kumar accused had driven jeep in a rough manner. It stands recorded in Ex.PW12/A that Balwant Singh and Tara -10- Chand accompanied by other persons had gone to the house of Sushil Kumar accused and lodged protest over this incident of rough driving of jeep. According to PW4," We lodged protest with father of Sushil Kumar". But PW4 Om Singh denied that his uncle Tara Chand and Balwant Singh had gone to lodge complaint against Sushil Kumar accused. Furthermore, prosecution has not examined Tara Chand to prove that he had accompanied Balwant Singh to the house of Sushil Kumar accused. PW5 Raj Kiran has a different version to tell in this respect. According to him, he accompanied by his uncle Balwant Singh lodged protest with father of Sushil Kumar accused. He did not state that Tara Chand or any other person had accompanied them at that time. As noticed above, Balwant Singh PW12 nowhere deposed that Raj Kiran had accompanied them to the house of Sushil Kumar at the time of lodging of protest.
In view of the above discussion, when only Balwant Singh and his brother Tara Chand accompanied by others lodged protest with father of Sushil Kumar over the incident of rough driving of jeep in the street, at the most Sushil Kumar accused could be said to have been nursing a grudge/ motive against Balwant Singh and Tara Chand or Om Singh but not against Raj Kiran. That could not have provided any reason for Sushil Kumar accused to go in front of the house of Raj Kiran -11- and call him out of the house. Therefore, the prosecution version regarding the motive attributed to the accused is neither convincing nor stands duly established.
Delay in recording of FIR
23. Learned defence counsel has argued that in this case there is unexplained delay in recording of the FIR, which can safely be said to have been utilized in deliberations and consultations; that from the material available it appears that Balwant Singh PW12 was neither present at the spot nor accompanying the injured to hospital and that he is a made up witness, and as such no reliance should be placed on the version available in the statement of Balwant Singh which led to registration of this case.
Occurrence is alleged to have taken place on 30.8.93 at about 10 p.m, in front of house of Baldeva, on a thorough fare, in the area of village Khera Kalan. First information that reached police station Samaypur Badli, Delhi, was from Wireless Operator to Lt. Constable Ambika of PCR and the information was about a quarrel/dispute at the house of Ram Kishan, Pradhan, in village Khera kalan. This information was received at about 10.20 p.m and recorded in Daily Diary Register at Sr.No.18 A. It was at about 00.50 a.m. that ruqqa was sent by Inspector Harshvardhan (presently ACP) from the hospital. This Ruqqa was in the shape of statement of Balwant -12- Singh with endorsement Ex.PW16/A appended thereto by the Inspector. In the endorsement, the Inspector recorded as to how he happened to reach the Hindu Rao Hospital consequent upon information recorded in DD No.18 A and came to record statement of Balwant Singh in the hospital, when Narender son of Baldeva had been declared brought dead and the other injured Raj Kiran was declared unfit to make statement.
To see as to what was the condition of Narender and Raj Kiran, at this stage, it would be appropriate to advert to MLC Ex.PW6/A in respect of Narender and MLC Ex.PW6/B in respect of Raj Kiran. As per relevant column meant for name of relative or friend accompanying the injured, in both the MLCs, name of HC Vijender Singh of PCR stands recorded. It shows that both these injured were brought to Hindu Rao Hospital by HC Vijender Singh of PCR on 30.8.1993 at about 11.20 p.m. It stands recorded in MLC Ex.PW6/A that Narender was semi conscious and gasping at the time he was brought to the hospital with an incised wound on the left side of his abdomen and that he died at about 11.45 p.m. It is in the statement of PW15 Constable Satanand, who was accompanying SI Darshan Lal and Inspector Harshvardhan, that they reached the hospital at about 11/11.15 p.m. When Ruqqa Ex.PW16/A is stated to have been dispatched from the hospital at about 00.50 a.m, MLC of -13- Narender declaring him as brought dead appears to have been collected by the Inspector at about midnight.
MLC Ex.PW6/B of Raj Kiran would reveal that he was fully conscious although having three incised wounds on his person at the time of his admission in the hospital. There is nothing in the MLC Ex.PW6/B to suggest that while Raj Kiran was at Hindu Rao Hospital, he was declared unfit to make statement. Therefore, the contents of Ruqqa that the doctor declared Raj Kiran unfit to make statement are not in consonance with the contents of the MLC Ex.PW6/B. It stands recorded in this MLC that one Tara Chand son of Sis Ram provided to the doctor alleged history of Raj Kiran having been stabbed by "someone". When Raj Kiran was fully conscious, it is not clear as to what prevented him from narrating the history and that too specifying that he was given stab wounds by the accused or anyone of them. In the MLC Ex.PW6/A pertaining to Narender, alleged history of fight (having been stabbed) was provided by relative. Name of Tara Chand does not stand recorded only in the MLC of Narender. Name of Tara Chand stands recorded in the other MLC i.e. of Raj Kiran. It appears as if Dr.Bhagi did not enquire about the name of relative who furnished history at the time Narender was brought to the hospital or he somehow omitted to write the name of the relative, but while examining Raj Kiran, he opted to -14- specifically write down name of the relative as Tara Chand. In this situation, only statement of HC Vijender Singh of PCR could help to ascertain as to whether Tara Chand was accompanying both the injured at the time they were brought to Hindu Rao Hospital. There is nothing on record to suggest if the Investigating Officer recorded statement of HC Vijender Singh of PCR. Fact remains that said HC Vijender Singh has not been examined in Court. Even Tara Chand, whose name stands recorded in MLC Ex.PW6/B, has not been examined in Court. In his cross-examination, PW16-Inspector HarshVardhan stated that house of Tara Chand is situated adjacent to the house of the injured. He displayed ignorance about relationship of Tara Chand with the injured, but stated to have interrogated him. It is a matter of record that PW 12 has admitted that Tara Chand is his real elder brother. He categorically denied that Tara Chand had removed Raj Kiran and Narender to hospital. At the time of examination of Dr.R.Bhagi, it was not suggested to him by the prosecution that he had wrongly recorded name of Tara Chand or not correctly recorded history in the MLCs. In this respect, prosecution could examine Tara Chand to prove that he had actually not accompanied the injured to Hindu Rao Hospital on the night of 30.8.93. But the fact remains that said Tara Chand has not been examined in Court to depose as to how his name came to be recorded in the MLC of Raj Kiran and as to whether -15- he had actually witnessed the occurrence or simply accompanied Raj Kiran and Narender to hospital in PCR Vehicle. In the given circumstances, non examination of Tara Chand as prosecution witness certainly adversely affects the case of prosecution.
When we have not the advantage of statements of Hc Vijender Singh of PCR and that of Tara Chand; there is no mention of the name of Balwant Singh PW12 in the MLCs as the relative or friend accompanying Raj Kiran and Narender; and Raj Kiran was not declared unfit to make statement during the period he remained at Hindu Rao Hospital, but his statement was not recorded by the police for the reasons best known to the police, possibility of Balwant Singh having been called later on and made a witness cannot be ruled out.
As per MLC, Raj Kiran was declared unfit to make statement by Dr.V.K.Sahdev of Santom Hospital vide his endorsement at point B. This endorsement of Dr.Sehdev does not bear date or time. Raj Kiran was declared fit to make statement by Dr.R.Shanti vide his endorsement recorded on 2.9.93 at about 11.45 a.m. But fact remains that there is nothing in the MLC Ex.PW6/B to suggest that Raj Kiran was declared by Dr.R.Bhagi as unfit to make statement. It was for the prosecution to explain as to why statement of Raj Kiran was not recorded, but it has failed to satisfactorily furnish explanation on -16- this aspect and the same goes a long way to show that police took time to deliberate and consult before recording of the FIR.
It is well settled that delay results in embellishment which is creature of afterthought. Bereft of advantage of spontaneity, danger creeps in of an introduction of concocted version, exaggerated account as a result of deliberation and consultation. Thus, delay should be satisfactorily explained. In this respect reference is made to law laid down in AIR 1973, Supreme Court 501.
In view of the above discussion, this court comes to conclusion that prosecution has failed to explain not recording of statement of Raj Kiran while he was at Hindu Rao Hospital and the same casts doubt regarding the genuineness of the version narrated not only by Raj Kiran while appearing in Court as PW5 but also about the version contained in statement Ex.PW12/A attributed to Balwant Singh PW12. Involvement of Ashok Kumar and Surender accused
24. In this case, initially only Sushil Kumar accused was sent up for trial, whereas names of Ashok Kumar and Surender accused were shown in column No.2 of the report under Section 173 Cr.PC. It was only during trial that on the application of the prosecution under Section 319 Cr.PC that Ashok Kumar and Surender accused were summoned as additional accused.
As regards other two accused Ashok and Surender, -17- brothers of Sushil accused, contention of learned defence counsel is that there is tendency to implicate all family members, and as such possibility of both these accused having been falsely implicated cannot be ruled out. In this respect, reference has been made to case of prosecution as put forth in report under Section 173 Cr.PC and also to the statement of the Investigating Officer wherein he admitted that investigation did not reveal their involvement in commission of this crime as a result whereof Ashok and Surender were placed in column No.2 of the report under Section 173 Cr.PC.
Then, while referring to the disclosure statement of Sushil accused wherein he disclosed regarding his involvement only and in pursuance thereof got recovered knife used in commission of the crime, learned defence counsel has placed reliance on decision in Madaiah v. State, 1992 Crl.L.J.502, and argued that when prosecution has relied upon this disclosure statement and recovery in pursuance thereof, it cannot be said that any other accused was involved in commission of the crime.
Learned defence counsel has argued that statements of prosecution witnesses are not reliable as they are guilty of suppression of material facts and have made improvements on material aspects of the case, as a result whereof prosecution case regarding involvement of the accused becomes highly -18- doubtful, particularly, when no person from the public or locality joined during investigation, has been examined by the prosecution to lend corroboration to the version narrated PW4,PW5 and PW12 in Court.
Reliance has been placed on the decision in Balak Ram v. State, AIR 1974 SC 2165; Jagdeo Singh and others v. State, 1979 Crl.L.J 236; State of Maharastra v. Champalal Punjaji AIR 1981 SC 1675; and Bengali and others v. State of Orissa, 1985 Cr.L.J 580.
It has also been contended by learned defence counsel that Ashok and Surender accused having been falsely implicated in this case, there is no guarantee that the PWs were speaking the truth while narrating in court so far as role attributed to Sushil accused is concerned.
As noticed above, names of Ashok Kumar and Surender accused were shown in column No.2 of the report under Section 173 Cr.PC. It was only during trial that on the application of the prosecution under Section 319 Cr.PC that Ashok Kumar and Surender accused were summoned as additional accused. While appearing in Court as PW16, the Investigating officer admitted that he had enquired from the persons living in houses near the place of occurrence after having come to know that Sushil had inflicted injuries. He further admitted that none from the neighbourhood leveled allegations or raised accusing finger -19- against Surender and Ashok. He also admitted that during investigation from the statement of Rajbir it transpired that at the time the incident was going on, Ashok Rana was present at his house. As regards, Surender accused, the Investigating Officer admitted to have verified from the record of Anando Mukherji at H.No.S-29, Panchsheel Apartments, New Delhi that Surender was present with him at the time of occurrence. Accordingly, none of them was arrested.
At this stage, it is pertinent to advert to the statement of DW1 Rajbir Singh and DW2 Smt.Shanti.
Rajbir Singh is a barber and running a hair cutting saloon in village Khera Kalan. According to DW1, about 10/12 years back, at about 10 p.m, after closing his saloon, he was returning to his house, when he reached in front of the house of Ashok accused, he found him standing at the doorsteps of his house; that he had a talk with Ashok accused during which he told that he had come from the house of his sister; that he remained present with Ashok for about 10-15 minutes. It was thereafter that the witness started for his house. But while he was still present at a shop and buying household articles, he heard that a quarrel was going on between Raj Kiran and some others, whereupon he reached near the house of Raj Kiran and witnessed arrival of PCR and removal of Raj Kiran and Narender in the PCR vehicle by their uncle Tara Chand. He also -20- stated to have made statement in this respect to the police. In his cross-examination, the witness denied the suggestion that Tara Chand had not accompanied Raj Kiran and Narender in the PCR vehicle or that he had not reached near the house of Raj Kiran or the place of occurrence.
Then there is statement of DW2 Smt.Shanti. According to Smt.Shanti, her house is situated by the side of the house of Sushil accused. She further deposed that about 14 years back, at about 10 p.m, Ashok accused had come to his house along with his sister in a jeep; that Ashok and his sister paid her regards and then entered their house. It was after sometime that she heard commotion at some distance while persons from the neighbourhood were found running towards the place of quarrel i.e. near the house of Baldeva. She further stated about presence of Ashok accused at his house and also to have told this fact to the police. In her cross-examination it was suggested to the witness that Ashok had not met her or that she had not seen him at his house.
On behalf of the prosecution, PW4 Om Singh, brother of Raj Kiran and Narender deposed that on 30.8.1993 at about 10 p.m, while he was present at his house, Raj Kiran and Narender and their uncle Balwant were present in the compound of house, Sushil Kumar accused called his brother Raj Kiran out whereupon Raj Kiran sent Narender out of the house to see as -21- to who was calling him out. As soon as Narender went out of the house, Sushil accused pulled him from his hand and took him out of the house. The witness deposed that he, in addition to others, witnessed this incident and as such immediately rushed towards Narender.
PW4 further deposed that having proceeded towards the gate of their house, he saw Surender having caught hold of Narender from his back side and having taken him into his grip whereas Sushil stabbed Narender with a knife hitting on left portion as well as on the left side of the abdomen.
As regards injuries on the person of Raj Kiran, Om Singh PW4 deposed that when Raj Kiran stepped ahead to save his brother Narender, Sushil accused exhorted his brother Ashok to stab Raj Kiran and it was thereupon that Ashok inflicted knife blows hitting on the hip and stomach of Raj Kiran.
It is also in the statement of PW4 that when he cried for being saved, Sushil and his brothers ran away from the spot.
PW5 Raj Kiran also narrated the manner in which the accused inflicted injuries on his person and the person of Narender. PW12 Balwant Singh also deposed the manner in which he witnessed the occurrence resulting in injuries by the accused on the person of Raj Kiran and Narender.
As discussed above, prosecution has failed to explain delay in recording of the FIR and establish presence of Balwant -22- Singh on the given date, time and place of occurrence and in the hospital. As held above, possibility of Balwant Singh having been made up as a witness cannot be ruled out.
PW4 Om Singh has made improvement in his statement made in Court by stating to have told the Investigating officer in his previous statement Ex.PW4/DA that police had reached the spot and taken his uncle Balwant Singh alongwith his brothers Raj Kiran and Narender. Had Balwant Singh accompanied Raj Kiran and Narender, PW4 Om Singh would not have omitted to state so in his statement Ex.PW4/DA. In this respect, the witness tried to explain that this fact was not recorded because SHO was favouring the accused persons. This explanation is not satisfactory, firstly because there is nothing on record to suggest that any complaint was filed by the complainant party against the SHO (PW16) for partial or one-sided investigation; secondly, because when PW16 stepped into the witness box, it was not suggested to him by the side of prosecution that he had conducted one sided investigation; thirdly, because the challan prepared only against Sushil Kumar accused was forwarded to Court, as it is, without any objection in the manner the investigation was conducted depicting the names of other two accused in column No.2; fourthly, name of Balwant Singh does not stand recorded in the MLC referring to him as the relative of the injured accompanying them; and fifthly, no criminal -23- complaint was filed by the complainant party for taking of cognizance against the other two accused, and cognizance came to be taken against additional accused only during trial.
As per case of prosecution, PW4 Om Singh was also a witness to the occurrence. But it is not case of prosecution that Om Singh had also accompanied Raj Kiran and Narender to hospital. There is no explanation as to why Om Singh was not taken along to the hospital. It means, Om Singh allegedly remained behind. But there is nothing in the statement of Constable Satanand or any other witness as to where was Om Singh at the time SI Darshan Lal or PCR staff reached village Khera Kalan. PW16-the Inspector deposed that one constable was left at the spot to guard the same. There is nothing on record to suggest that Om Singh met said constable or narrated him the manner in which the occurrence had taken place.
It is in the statement of PW4 that persons from the public had gathered at the spot. According to PW5, during the occurrence, they raised hue and cry and persons from the neighbourhood were attracted to the place of occurrence. But PW12 Balwant Singh deposed contrary to it. According to him, none from the neighbourhood came to the place of occurrence. However, in the next breath he deposed that persons from the neighbourhood were present in front of their respective houses. -24- PW16, the Investigating Officer, deposed that he had enquired from the persons living in the houses nears the place of occurrence. If persons from the public had also gathered at the spot, prosecution should have examined them in Court to lend corroboration to its version, but no such person from the public has been examined in Court in this respect. In the given circumstances, non examination of witness from the public further adversely affects the case of prosecution regarding presence of Balwant Singh on the given date, time and place.
Case of prosecution is that during investigation, Balwant Singh produced before the police underwear of Raj Kiran stating that he was wearing the same at the time of occurrence. Ordinarily, blood stained clothes are removed or seized by the doctor at the time of medico legal examination of injured. It is not case of prosecution that any blood stained cloth of Raj Kiran was removed by the doctor, who attended upon him, at the time of medico legal examination. Therefore, it remains unexplained as to when and where from Balwant Singh collected the alleged underwear of Raj Kiran and when did he produce the same before police.
Furthermore, there is no explanation as to why only underwear was so produced by Balwant Singh and seized by the police. Case of prosecution is that in addition to the injury on the thigh, there were two injuries in the abdomen of Raj Kiran, -25- and because of these injuries, his shirt or banyan must have also got stained with blood, and consequently, shirt or banyan should also have been produced by Balwant Singh before the police. Balwant Singh PW12 and the Investigating Officer have nowhere deposed about seizure of any other cloth of Raj Kiran. No explanation from the prosecution in this respect makes it uncertain that Raj Kiran suffered any such injury at the time and place Narender suffered injury and that too in presence of Balwant Singh.
It is in the statement of PW12 Balwant Singh that Raj Kiran and Narender were firstly shifted to the cots and then to the PCR van, but he wants the court to believe that his clothes did not get stained with blood and that only hands had got stained with blood. There is nothing in the statement of PW12 as to who else had helped in removal of the two injured from the spot to the cot and then to the PCR van. No official of PCR van has been examined in this case, for the reasons best known to the Investigating Officer. No person from the public has been examined to prove that he had helped in removal of the injured to the cots and then to the Van, so as to support the prosecution version regarding presence of Balwant Singh on the given date, time and place. It is not believable that two injured persons could be so removed only by one person and that while removing them clothes of the persons helping their removal did -26- not get stained.
As regards presence of Raj Kiran PW on the given date, time and place, as per prosecution version, on the basis of previous incident which took place about 15/20 days prior to the presence occurrence, when Balwant Singh and his brother Tara Chand accompanied by others lodged protest with his father over the incident of rash driving of jeep in the street, at the most Sushil Kumar accused could be said to have been nursing a grudge/ motive against Balwant Singh and Tara Chand. This being the background, there was no reason for Sushil Kumar accused to call Raj Kiran out of the house. Therefore, the prosecution version that Sushil Kumar on reaching in front of the house of Raj Kiran, called Raj Kiran out of the house, is not believable. Even otherwise, both the parties knew each other for the last about 25 years. Therefore, it would not have been difficult for Raj Kiran to identify Sushil Kumar by his voice. It is not believable that in such a situation, Raj Kiran would have directed his brother Narender to go out to see as to who was calling him outside.
Place of occurrence
25. Case of prosecution is that information recorded in DD No.18 A was in respect of dispute at the house of Ram Kishan, Pradhan, in village Khera Kalan. But the prosecution witnesses, namely, Om Singh, Raj Kiran and Balwant Singh -27- have come forward with the version that the occurrence took place in front of the house of Baldeva i.e. the house of Raj Kiran and Narender. In the site plan Ex.PW16/B, house of Ram Kishan is nowhere in picture. House of Baldeva has been shown adjacent to the house of Tara Chand and both these houses abut a street. On the other side of the street, houses of Ranveer Singh and Kartar Singh have been depicted. On the basis of information recorded in DD No.18 A, SI Darshan Lal accompanied by Constable Satanand reached village Khera Kalan. According to PW15 HC Satanand, after sometime, SHO accompanied by Constable Ramesh also reached there; that the constable was left at the spot i.e. in front of the house of Ram Kishan, where blood was also lying. So, even according to PW15 the constable was left in front of the house of Ram Kishan and blood was lying there. However, PW16 Inspector Harshvardhan made a contrary statement by stating that he accompanied by Constable Ramesh Kumar reached the spot i.e. near the house of Baldeva; that SI Darshan Lal and Constable Satanand were already present there and that at the spot, in the street, blood was found lying. SI Darshan Lal has expired. Ordinarily, while preparing rough site plan of the place of occurrence, the place where blood is found lying or from where blood is picked up, is also depicted therein. Case of prosecution is that recovery memo Ex.PW2/A was prepared in -28- respect of seizure of blood from in front of the house of Baldeva and the memo was attested by SI Darshan Lal and Kartar Singh. SI Darshan Lal has not been examined, he having died. According to PW2 Kartar Singh, police picked up blood from in front of the house of Baldeva, but he denied that any writing work was done by the police in this respect. Had any such memo been prepared, PW2 Kartar Singh would not have omitted to state so. Surprisingly enough, in this case rough site plan Ex.PW16/B does not depict any point where blood was observed or from where blood was seized. The contradiction in the statements of PW15 and PW16 regarding the place where the blood was found lying and the omission to depict in the site plan the place where blood was found lying or from where it was picked up, further create a doubt in the version of the prosecution regarding the exact place where the occurrence took place.
Furthermore, memo Ex.PW2/A does not reveal that after use, the seal was handed over to anyone else by the Inspector so as to rule out possibility of tampering with the case property. Position of accused and witnesses at the time of occurrence
26. Prosecution has got proved on record site plan Ex.PW16/B pertaining to the place of occurrence. In this document, point 'C' is the point from where Om Singh is stated -29- to have seen the occurrence; Point 'D' is the place where Ashok accused is stated to have stabbed Raj Kiran; and point 'E' is the place from where Balwant Singh is stated to have tried to save Narender. It is significant to note that in the marginal note explaining point 'E' it does not stand recorded that this is the point from where Balwant Singh is stated to have witnessed the occurrence. There is no explanation as to why Balwant Singh did not point out point E as the point from where he had witnessed the occurrence.
Position of Surender accused not shown in site plan.
27. Had Surender accused caught hold of Narender, the Investigating Officer must have particularly shown position of Surender in the site plan. In the site plan Ex.PW16/B, no position of Surender accused has been depicted. This fact also makes presence of Surender accused on the given date, time and place doubtful.
Ocular account regarding injuries
28. According to PW4 Om Singh, he saw Surender accused catching hold of Narender from his back side and took Narender in his grip whereas Sushil accused stabbed Narender with a knife, hitting on his left portion as well as on the left side of the abdomen. According to PW5 Raj Kiran, Surender accused taking his grip from the backside whereas Sushil -30- accused stabbed Narender on the left side of his abdomen and on his face near the nose. PW12 Balwant Singh deposed that on hearing the alarm raised by Narender, he came out of the house and started saving Narender and that Sushil Kumar accused inflicted knife blows hitting Narinder in his abdomen and on the face. However, in his statement made before the police, PW12 stated that injuries were inflicted in the abdomen and on the legs of Narender. PW4 did not depose about any injury on the face or near the nose or on the legs of Narender. PWs 4 and 5 did not depose that any attempt was made to save Narender. Even otherwise, it is not believable that one of the culprits would inflict injury in the abdomen while the victim is in the grip of the other from behind, and family members of the victim step ahead and intervene to save the victim, as in such a situation possibility of landing of blow on the person of companion of the assailant cannot be ruled out.
At this stage, when we advert to the medical evidence i.e. MLC Ex.PW6/A, it wound transpire that Dr.R.Bhagi observed only one incised wound on the left side of abdomen. In the medical evidence, there is no reference about any injury on the face or near the nose of Narender. On this aspect, medical evidence is not in consonance with the ocular account narrated by PW4 and PW5.
Non examination of PCR staff -31-
29. PW4 Om Singh deposed in his cross-examination that PCR van had reached the spot half an hour after the occurrence and that they had told PCR staff about the occurrence. In the given situation, Investigating Officers should have joined the PCR staff in the investigation and recorded their statements to know and prove as to exactly at what point of time they had reached village Khera Kalan; as to from where they had removed the two injured; and as to what was told by which of the persons found present there and as to whether Om Singh, Tara Chand and Balwant Singh were found present at the spot or not at the time Narender and Raj Kiran were removed to hospital from village Khera Kalan. But in this case, for the reasons best known to the Investigating Officer, no member of the PCR staff was examined on these material aspects of the case. Their non examination adversely affects the case of prosecution.
According to PW5 Raj Kiran, Sushil Kumar accused exhorted his brother Ashok Kumar to stab him (PW5), whereupon Ashok stabbed him in the middle of his abdomen, on the right side of his waist and on the right side of his buttock, as a result of which he fell own and became unconscious. In this respect, when we advert to the medical evidence. It may be mentioned here that points A and D depicted in site plan Ex.PW16/B are the place where Sushil attacked Narender and -32- Ashok stabbed Raj Kiran. When both the injured are stated to have suffered injuries at two different points, blood must have fallen at two places. However, in this case, the Investigating Officer picked up blood only from one point but in the site plan Ex.PW16/B no such point has been shown from where the blood was picked up. As noticed above, according to Balwant Singh PW12, both the injured were firstly removed to cots and from their to PCR van. But during investigation, no cot appears to have been seized to lend support to the version narrated by Balwant Singh.
PW5 Raj Kiran deposed that he was stabbed on the right thigh as well. Furthermore, according to PW12 Balwant Singh Ashok accused inflicted knife injuries in the back, stomach and on the left buttock of Raj Kiran. PW4 Om Singh deposed that Ashok inflicted knife blows hitting on the hip and stomach of Raj Kiran. MLC Ex.PW6/B does not depict that there was any injury on the right thigh of Raj Kiran. Injury No.3 was on the left thigh whereas injury No.1 was on the abdomen and injury No.2 was on the right side of abdomen. Therefore, as regards injury No.3 the version narrated by PW Raj Kiran is not in consonance with the medical evidence. As noticed above, only underwear of Raj Kiran was seized and there is no explanation as to why any shirt or banyan of Raj Kiran was not seized to lend corroboration to the version of prosecution that -33- two more injuries were inflicted on the person of Raj Kiran. It is pertinent to note here that there is nothing in the statement of PW12 that Sushil accused exhorted his co-accused Ashok to inflict injuries on the person of Raj Kiran. As noticed above, motive if any would have been against Om Singh who had a narrow escape when Sushil is alleged to have driven jeep in a rough manner, and it is unbelievable that Sushil pulled Narender out of his house and started stabbing him for nothing, without waiting for Om Singh.
As noticed above, first information received at the police station at about 10.20p.m. was about a quarrel at the house of Ram Kishan Pradhan. In the given circumstances, SI Darshan Lal and Ct. Satanand would have visited the house of Ram Kishan Pradhan. There is nothing in the statement of PW Satanand that at the time they reached village Khera Kalan, they went to the house of Ram Kishan Pradhan. Even during investigation, Inspector Harshvardhan did not visit the house of Ram Kishan Pradhan or verify as to why the information was to the effect that quarrel had taken place at his house. There is no explanation as to why the information was not to the effect that quarrel had actually taken place at the house of Baldeva.
It is case of prosecution that mother of Raj Kiran and Narender was present at the house. It is available from the statement of PW2 Kartar Singh that wife of Baldeva was found -34- present at his house when he reached the house of Baldeva. At that time, wife of Baldeva told him (PW2) that her son had been stabbed.
It may be mentioned here that in his chief examination PW2 deposed that on 31.8.93 at about 1.45/2 a.m. he while lying on a bed on the roof of his house, heard as if someone was weeping, whereupon he came down and proceeded towards the house of Baldeva, but the witness was put leading question by Ld. Addl.Public Prosecutor after seeking permission from the Court and then he deposed having heard someone weeping at about 10 p.m. and having reached the spot soon thereafter. There is no explanation as to why the witness stated in his chief examination having gone to the house of Baldeva at about 1.45/2 a.m. On reaching the house of Baldeva, PW2 must have enquired from mother of Raj Kiran and Narender as to who had stabbed his son and which of her sons. In his cross- examination, the witness deposed that he was not told at about 10 p.m. on 30.8.93 that Sushil Kumar had given stab injuries to Narender and Raj Kiran. Had Raj Kiran and Narender been stabbed by the accused persons, it is not believable that neither mother of Raj Kiran and Narender would have apprised PW2 of the names of the assailants nor PW2 would have enquired about the names of the assailants. It is true that in his cross- examination, PW2 deposed having heard at his own house that -35- Sushil had stabbed Narender and Raj Kiran, but in this respect, the witness did not explain as to who had told him at his house that Sushil had stabbed Narender and Raj Kiran. Furthermore, these facts do not stand recorded in Ex.PW2/DA the statement of PW2 made before the police. The witness has thus materially improved upon his previous statement not only on this aspect.
In view of the above discussion, statement of PW2 Kartar Singh on the aforesaid aspects does not help the prosecution.
When as per prosecution version, only underwear of Raj Kiran was seized. There is nothing in the statement of Raj Kiran PW5 as to what he was wearing at the time of occurrence or that he was wearing only an underwear at that time so as to explain as to why no other cloth belonging to him got stained with blood or was seized by the police or by the doctor. Furthermore, only Tara Chand was present in the hospital at the time alleged history was given by him and that history was to the effect that someone had inflicted injuries on the person of Narender and Ram Kiran. The history given by Tara Chand to the doctor was not to the effect that injuries were inflicted by the accused persons or at the instigation of anyone of them.
Occurrence took place on 30.8.1993. Case of prosecution is that statement of Raj Kiran was recorded on 13.9.1993. According to PW5 Raj Kiran, during his admission at Hindu Rao Hospital, he was unfit to speak or talk. But as per -36- medical evidence, Raj Kiran was fully conscious. Dr.R.Bhagi, who medicolegally examined Raj Kiran at Hindu Rao Hospital did not declare Raj Kiran as unfit to make statement. As noticed above, Raj Kiran was brought to Hindu Rao Hospital and got admitted there. Therefore, the version narrated by the witnesses that Raj Kiran was unconscious does not find support from the observations of Dr.R.Bhagi as recorded in MLC Ex.PW6/B. According to Raj Kiran, he regained consciousness, but he did not name the hospital where he regained consciousness. He has tried to explain that he was discharged from Hindu Rao Hospital after about 10/12 days, without being properly treated and thereafter he got himself treated at Santom Nurising Home, Rohini, where he remained admitted for about 10/15 days and was operated upon once again. But prosecution has not brought any fact in the medical evidence to suggest that Raj Kiran was not treated properly during his admission at Hindu Rao Hospital or that that is why he had to be got treated at a private hospital i.e. Santom Hospital. There is nothing on record to suggest that Raj Kiran was forcibly discharged from Hindu Rao Hospital or as to under what circumstances, Raj Kiran was declared unfit to make statement at Santom Hospital after his discharge from Hindu Rao Hospital, where none of the doctors declared him unfit to make statement during his stay there. No medical record of Santom Hospital has been got produced or proved on record -37- to show as to when and under what circumstances Raj Kiran was declared unfit to make statement. Therefore, the undated endorsement at point B in MLC Ex.PW6/B that Raj Kiran was unfit to make statement is of no avail to the prosecution so as to justify late recording of his version on 13.9.93.
In the opinion of PW6-Dr.R.Bhagi, sharp weapon was used in causing injuries on the person of Narender and Raj Kiran. But in his cross-examination, the doctor admitted that no weapon of offence was produced before him. Case of prosecution is that Sushil Kumar accused, in pursuance of his disclosure statement led the police party to railway station Khera Kalan and got recovered a knife from the railway station and the same was seized. In the given circumstances, the Investigating Officer should have produced the knife before the doctor witnesses to have their opinion about its use in causing injuries on the person of Narender and Raj Kiran. But in this case, the knife was never produced before the doctors to obtain their opinion so as to connect the same with the present crime.
Furthermore, as noticed above, case of prosecution is that one knife was with Sushil Kumar which he used in causing injuries on the person of Narender, whereas Ashok Kumar accused inflicted injuries on the person of Raj Kiran and that too with a knife. It is not case of prosecution that the very knife used by Sushil Kumar was used by Ashok Kumar accused. -38- Therefore, as per prosecution version two knives were used in commission of the crime. Only one knife is alleged to have been got recovered and that too by Sushil Kumar. Second knife could not be recovered.
Recovery of knife
30. So far as the knife stated to have been recovered at the instance of Sushil Kumar accused is concerned, case of prosecution is that on 31.8.93, he made disclosure statement and then got discovered a knife from the railway station of village Khera Kalan in presence of Kartar Singh, SI Darshan Lal and Constable Satanand and Inspector Harshvardhan. In this respect, prosecution has examined Kartar Singh, Constable Satanand and PW16 Inspector Harshvardhan.
According to PW16, on 31.8.1993 while he was present on GT Road, he received secret information that Sushil was present at railway station Khera Kalan and about to flee. He then accompanied by SI Darshan Lal, Constable Satanand and secret informer reached the railway station, apprehended Sushil Kumar at the pointing out of the secret informer, interrogated him, recorded his disclosure statement Ex.PW16/D to the effect that he had kept concealed knife used in stabbing, in the grass under the bench of the railway station. The witness then deposed about recovery of knife from the disclosed place in pursuance of disclosure statement made by Sushil Kumar -39- accused. Further according to PW16, the knife was turned into a parcel and the parcel was sealed with seal bearing impression HV after the seal was collected from SI Darshan Lal. It is also in his statement that one Kartar Singh had himself reached the railway station and he attested the recovery and the recovery memo. It is in his cross-examination that secret information regarding presence of Sushil was received by him at about 4.30 p.m on 31.8.93. This version stands contradicted by PW2 Kartar Singh. According to PW2, he was joined in the party in the morning of 31.8.93 and not in the evening as stated by PW16. He specifically stated that it was at about 7/7.30 a.m, that he found police near railway station Khera Kalan when he was returning from his fields. On this aspect, PW2 was put leading questions by Addl. Public Prosecutor after seeking permission from the Court, but the witness denied to have stated to the police that he had met the police party while he was going to his fields in the evening. He also categorically denied that recovery was effected in the evening of 31.8.93 or that he was wrongly deposing about the recovery in the evening. He volunteered that police might have shown the recovery in the evening while recording his statement. Thus, PW2 has not supported the case of prosecution regarding recovery of knife in the evening. PW15 Ct. Satanand also deposed about recovery of knife in the evening. Furthermore, PW15 stated in his chief examination -40- that Kartar Singh had come to the railway station and attested the memos, but in his cross-examination he deposed that Kartar Singh was associated in the party from the village. In this way, statements of the three witnesses PW15 and 16 are not in consonance with the version narrated by PW2 regarding the time and place of his having been joined in the party and also about the time of recovery of the knife.
In case of recovery of incriminating material, seal is ordinarily entrusted by the Investigating Officer to another so as to rule out possibility of tampering with the case property. Factum of entrustment of seal is also mentioned in the recovery memo. According to PW15 and 16, the seal after use was handed over to SI Darshan Lal (since deceased). But recovery memo Ex.PW2/C does not contain any reference to the factum of entrustment of seal to SI Darshan Lal.
Furthermore, in case of recovery of incriminating material, generally rough site plan of the place of recovery is also prepared. But in this case, prosecution has failed to prove if any place of recovery of the knife was prepared by way of contemporary record in respect of the recovery.
Even otherwise, it is not believable that Sushil Kumar accused was carrying the incriminating material i.e. knife alleged to have been used in stabbing, with him till the next evening, instead of having opted to conceal it or throw it away at -41- any place in the meanwhile.
Furthermore, it is not case of prosecution that any finger print was lifted from the handle of the knife so as to establish that the same was used by such and such accused. The expert witness in his report Ex.PW16/F opined that blood available on the knife sent for analysis was insufficient for determination of origin. There is nothing on record to suggest that stains of blood on the knife were of the blood of Narender or Raj Kiran. Repeated tests indicated that blood on the underwear could be of B group. But there is no evidence on record to suggest as to what was the blood group of Raj Kiran, so as to connect the underwear to Raj Kiran.
It is also pertinent to note here that on 5.10.93 sealed parcels lying deposited with the MHC(M) are stated to have been got deposited at CFSL Chandigarh through constable Jaswant Singh. But in this case, neither concerned MHC(M) nor Constable Jaswant Singh was cited or examined as a witness. No application was filed on behalf of the prosecution during trial with the request to cite any of these two officials as witnesses for their examination during trial. Whereas according to PW16, the Investigating Officer, the sealed parcels were got dispatched to CFSL on 5.10.93, as per report Ex.PW16/E of the expert witness, the sealed parcels reached the CFSL on 7.10.93. It was for the prosecution to explain as to why the parcels came to -42- be delivered at CFSL Chandigarh on 7.10.93 instead of 5.10.93. In absence of examination of Constable Jaswant Singh and MHC(M) it can safely be said that prosecution has failed to rule out possibility of tampering with the case property during the period the same remained admitted in the Malkhana and on way from the Malkhana till the same reached CFSL Chandigarh.
All this goes to show that neither the occurrence took place on the given place i.e. in front of the house of Raj Kiran and Narender and in the manner narrated by PW4, PW5 and PW12 nor it was witnessed by PW4 or by PW12, and this court finds merit in the contention raised by learned defence counsel that some unknown person(s) appear(s) to have attacked Narender and Raj Kiran and that Sushil and other accused have been falsely implicated on the basis of suspicion on account of incident which allegedly took place about 15 days prior thereto. In view of the above discussion, it can safely be held that statements of prosecution witnesses are not reliable as PWs 4,5 and 12 have not only made contradictory statements but also made improvements on material aspects of the case. As a result, prosecution case regarding involvement of the accused in commission of the present crime is highly doubtful. Benefit of doubt has to be extended to the accused in this case.
31. In view of the above discussion and finding, all the three accused are acquitted of the charges framed against them -43- while extending to them the benefit of doubt. File be consigned to record room.
Announced in Open Court today On 28th March 2007 [ NARINDER KUMAR ] Additional Sessions Judge Fast Track Court:Delhi 28/03/2007