Delhi District Court
State vs . 1. Naresh Kumar S/O Ram Singh, R/O H.No. ... on 20 February, 2010
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IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGEVII/NECUM
ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :
S.C. No. 27/08
State Vs. 1. Naresh Kumar S/o Ram Singh, R/o H.No. B4/353,
Nand Nagri, Delhi.
2. Arun Kumar @ Hanni S/o Dinesh Kumar, R/o H.No.
B4/139, Nand Nagri, Delhi.
3. Sanjeev @ Sanjay @ Manjan S/o Ram Chandra, R/o
H.No. B3/301, Nand Nagri, Delhi.
FIR No. 965/07
PS Nand Nagri
U/s 302/392/397/34 IPC.
J U D G E M E N T : Prosecution's case emanates from the fact that on 09.11.07, DD No. 26A was handed over to ASI Bhupinder Singh, which was pertaining to assault by knife over a scuffle in H.No. 148, Block No.18, near street in Nand Nagri. When Bhupinder Singh ASI was inquiring about the matter, in the meanwhile another DD No. 29A was received by him, which was pertaining to assault by a knife in B3 Primary School, Nand Nagri, Delhi. When he along with Constable Narender reached at B4, Primary School, Nand Nagri, they came to know that injured has already been removed to hospital. There was no public witness at the spot. He saw blood in profuse quantity was lying there at the spot. When he inquired from Rakesh, watchman of the school, he told that he saw a few boys beating a boy. When he raised alarm, those boys ran away from there. ASI Bhupinder Singh left Narender Constable at the spot and himself left for GTB Hospital. He obtained MLC No. B4522/07 of injured and doctor informed that the patient was brought dead and sent to mortuary for postmortem. He later on 2 came to know that deceased was known as Mahesh @ Pappu, when he saw Mukesh bereaving near the dead body. He inquired from him (Mukesh), who told that deceased was his brother. Mahesh @ Pappu along with his nephew Ashu went out of his house. Mukesh came to know that his brother Mahesh @ Pappu had an altercation with some boys. Case for offence punishable under section 302/34 IPC was registered. Thereafter, investigation was taken up by Bachchu Singh, Inspector. He called the crime team at spot and got it photographed. Blood, blood stained earth, earth control, blood stained locket having engraved lord Hanumanji, besides a blood stained ring of iron were lifted from the spot. Same were seized and taken into possession. Scaled site plan of the spot was also got prepared. Ashu, nephew of deceased Mahesh @ Pappu, was joined in investigation. On 10.11.07, postmortem on the dead body was got conducted by Inspector Bachchu Singh. Dead body was released in favour of relatives of the deceased. Besides Ashu, Krishan was also joined in the investigation, who had the knowledge of incident. Kishan informed that two boys, who are wanted in connection with the murder of Mahesh, are available at B5 Park. On this Inspector Bachchu Singh along with staff reached at B5 Park and arrested accused Arun @ Hanni and Sanjeev @ Sanjay @ Manjan at the instance of Ashu and Krishan. During the course of investigation, Arun was found in possession of purse, Rs.100/ and identity card of deceased Mahesh @ Pappu. On interrogation, Arun divulged that Naresh showed knife to Mahesh, while he himself and Sanjeev dragged Mahesh towards school gate of B4, 3 Primary School. At the instance of accused Sanjeev and Arun, their associate Naresh was also arrested from his house at B4/353, who got recovered knife from the roof of primary school. On 20.11.07, Inspector Bachchu Singh got recorded statement of Krishan under section 164 Cr.P.C, and the statement of Ashu u/s 164 Cr.P.C on 21.11.07. Exhibits of the case were sent to FSL, Rohini. Statement of witnesses were recorded. Investigation culminated into a charge sheet against all the three accused persons.
2. Charge for offences punishable under sections 302 and 392 read with section 34 IPC was framed against the accused persons, besides a separate charge for offence u/s 397 IPC against accused Naresh was framed, to which charges they pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Ashu (PW1), Krishan @ Gola (PW2), Rakesh (PW3), Mukesh (PW4), Rajpal (PW5), Govind Ram (PW6), Sh. Arun Titolia (PW7), Gurcharan Singh, Constable (PW8), Narender, Constable (PW9), Mukesh Kumar Jain SI (PW10), Lakhinder Rai, Constable (PW11), Devender Kumar, Constable (PW12), Dr. P.K. Shah (PW13), Dr. Sumit Tellewar (PW14), Mohd. Shamim ASI (PW15), Bhupinder Singh ASI (PW16), Ved Prakash, Constable (PW17), Bachchu Singh, Inspector (PW18), Sh. Vikas Dhull, ASCJcumJSCC (PW19) and V. Shankarnarayan, Sr. Scientific Assistant (Biology) (PW20) in the case.
4. In order to afford an opportunity to explain circumstances appearing in evidence against the accused persons, they were examined under section 4 313 Cr.P.C. They had denied all allegations levelled against them. Their case has been of denial simplicitor. They claimed their false implication in the instant case at the hands of investigating agency. However, they have examined Sumer Chand (DW1) in support of their defence.
5. Ashu (PW1) is the nephew of deceased Mukesh and is an eyewitness of incident and is also a witness to the recovery of purse and knife.
6. Kishan @ Gola (PW2) is an independent witness, who witnessed the occurrence and is also a witness to the recovery of purse and knife.
7. Rakesh (PW3) was on duty as watchman in MCD Primary School, B4 Nand Nagri, Delhi, on 09.11.07., when incident took place.
8. Mukesh (PW4) identified dead body of his brother Mahesh @ Pappu at Mortuary, GTB Hospital, vide identification memo Ex.PW4/A. After postmortem, dead body was handed over to him vide handing over memo Ex.PW4/B. Rajpal (PW5) had also deposed that dead body of Mahesh @ Pappu was handed over to them vide handing over memo Ex.PW4/B. Govind Ram (PW6), brotherinlaw (sala) of deceased Mahesh @ Pappu had also identified dead body of Mahesh. His statement Ex.PW6/A was recorded to this effect.
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Arun Titolia (PW7) took 7 photographs of the spot from different angles. He proved positive photographs as Ex.PW7/A1 to A7, besides negatives as Ex.PW1/B1 to Ex.PW1/B7.
Gurcharan Singh, Constable (PW8) unfolded facts pertaining to disclosure statements made by the accused persons, besides their medical examination at GTB Hospital.
Narender, Constable (PW9) guarded the spot, when Bhupinder Singh ASI proceeded for the hospital on knowing about the victim being removed to GTB Hospital. After about 3045 minutes, Bhupinder Singh ASI reached the spot. Blood was lying on the floor as well as on the ground. Floor pieces were chiselled and were seized, since they were blood stained. Blood lying on the ground was also lifted and seized. Aforesaid parcels were sealed with seal of BS and were taken into possession by Bhupinder Singh ASI.
Mukesh Kumar Jain (PW10) prepared scaled site plan of the spot, on the basis of rough notes and measurements taken by him. He proved the scaled site plan of the spot as Ex.PW10/A. Lakhinder Rai, Constable (PW11) collected exhibits of this case from Malkhana of PS Nand Nagri and took the same to FSL, Rohini, vide R.C. No. 333/21.
Devender Kumar, Constable (PW12) removed injured to GTB Hospital by gypsy and got him admitted there. In the hospital, injured was 6 declared brought dead. A mobile was recovered on personal search of deceased from his pocket. He handed over that mobile to Bachu Singh, Inspector, who took the same into possession vide memo Ex.PW12/A. He identified mobile phone Ex.P7 as the same, which was recovered from personal search of the deceased.
Dr. P.K. Shah (PW13) proved MLC of deceased as Ex.PW13/A, which was prepared by Dr. Sriniwas.
Dr. Sumit Tellewar (PW14) conducted postmortem on the dead body of Mahesh @ Pappu. He proved his report to this effect as Ex.PW14/A. Mohd. Shamim ASI (PW15) was working as duty officer at PS Nand Nagri on 09.11.07. He recorded FIR and proved copy of it as Ex.PW15/A. He also proved copies of DD No. 28A and 29A as Ex.PW15/C and Ex.PW15/D respectively. He had also proved DD No. 38A as Ex.PW15/E in respect of special reports of this case sent to ld. MM and Sr. police officers through Constable Sohanvir, the motorcycle rider.
Bhupinder Singh ASI (PW16) detailed those investigative steps, which took place in his presence.
Ved Prakash, Constable (PW17) got case registered at PS Nand Nagri. He handed over copy of FIR and rukka to Inspector Bachchu Singh. He further unfolded facts pertaining to release of dead body of deceased in favour of relatives of deceased, besides seizure of a mobile given by Devender Kumar, Constable.
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Bachchu Singh, Inspector, (PW18) conducted investigation of the case. He detailed those very investigative steps, which were taken by him during the course of investigation.
Sh. Vikas Dhull, ASCJcumJSCC, (PW19) recored statements of Krishan and Ashu under section 164 Cr.P.C. He gave his certificate underneath their statements and proved the same as Ex.PW19/B and Ex.PW19/D respectively.
V. Shankarnarayanan, Sr. Scientific Assistant (PW20) proved his detailed biological report as Ex.PW20/A and serological report as Ex.PW20/B.
9. Arguments were heard at the bar. Sh. Subhash Chauhan, ld. Prosecutor, presented facts on behalf of the State. Sh. A.A. Khan, Sh. Ravinder Kumar and Sh. Sushil Sharma, Advocates, had advanced arguments on behalf of the defence.
10. ld. Defence counsels assailed the testimony of PW1 Ashu on the ground that he is an interested witness and made material improvements in his deposition before the Court. Moreover, his statement was recorded u/s 164 Cr.P.C, wherein he did not mention the name of accused Sanjay and Arun as the assailants of the crime. They also referred to the conduct of witness Ashu by submitting that after witnessing the incident, he went and slept at the house of his relative and did not inform either his parents or to the family members of his maternal uncle, and it was submitted that conduct of 8 witness was quite unnatural. On the basis of aforesaid submissions, it was submitted that Ashu was not the eyewitness of the incident, and was subsequently procured as eyewitness by the police officials. As regards PW Kishan @ Gola is concerned, it was submitted that in crossexamination, this witness has clearly deposed that the statement given by him was at the instance of police officials. As such, no sanctity can be attached to that statement. As regard PW3 Rakesh, the chowkidar of the school, is concerned, it was submitted that this witness has not supported the case of prosecution at all. As regards the recovery of knife, it was submitted that same has not been proved beyond doubt, inasmuch as, it is allege to have been recovered in presence of three witnesses, but the recovery memo did not bear signatures of Kishan @ Gola. Moreover, investigating officer did not carry out any investigation regarding the mobile, ring and locket recovered at the place of incident, as to whom it belongs, whether to the accused or to the deceased. Further more, the newspaper cutting was recovered from purse of the deceased. However, no investigation was carried out by the police officials. The fair price shop owner may have the motive to eliminate the deceased, inasmuch as, he got news published in newspaper, as a result of which his shop was closed and therefore, he had the motive to get deceased eliminated. Further more, it was submitted that site plan is not correct, inasmuch as, chappars outside the location were not shown in the same. As such, it was submitted that prosecution has not been able to established its 9 case beyond reasonable doubt. For raising submissions in the case, reliance was placed on 1998 (2) CC Cases (SC) 45, Jag Narain Prasad vs. The State of Bihar; 2004 III AD (Cr.) SC 1, Sakatar Singh & Ors vs. State of Haryana; 2005 Cr.L.J. 299, Vijay Singh Vs. State of M.P.; 2002 (2) JCC 1385, Mintoo Shah vs. State of NCT of Delhi; 1993 Cr.L.J 3833, Shankar Rao & Ors. vs. State of Andra Pradesh; 1994 Cr.L.J. 2526, Bashir Shah & Ors. Vs. State of Rajastan; and 1990 Cr.L.J. 2531, State of Gujrat Vs. Bharwada Jagshibhai Nagribhai & Ors.
11. On the other hand, it was submitted by ld. Prosecutor that presence of Ashu, the eyewitness of the incident, has been proved. As regards the submissions that there were improvements in the statement of witness, it was submitted that there is no material improvements in his statement and on substantial particulars, he has supported the statement made by him before the police as well as before the ld. Magistrate. As regards his conduct, it was submitted that it has come in his statement that accused Naresh had threatened him by pointing out blood stained knife towards him by stating that in case he informs about the incident to anyone, he would be killed by him. Brother of Naresh, namely, Parvesh is also a bad character of the area, as such due to fear of accused persons, he slept at his relative house and did not inform about the incident to anyone. However, on the next day, he mustered the courage and came to police station and informed about the incident. As such, no adverse inference can be drawn from his conduct in not 10 informing anybody about the incident. As regards nonmentioning the name of the accused Arun and Sanjeev in his statement, recorded u/s 164 Cr.P.C, it was submitted that same is not of any consequence, inasmuch as, name of all the accused persons were mentioned by him before the police and he also identified them before the Court. Mere fact that he is closely related to deceased, being his nephew is no ground to discard his testimony. As regard the testimony of witness Kishan @ Gola is concerned, it was submitted that statement of this witness was recorded under section 164 Cr.P.C, wherein he narrated the incident as well as recovery of purse containing documents and knife. Moreover, this witness has fully supported the case of prosecution in his examinationinchief. However, his crossexamination was deferred and when it was recorded later on then this witness turned hostile, which clearly reflects that by the time his crossexamination was recorded, he was completely won over by the accused persons. But there is no reason to discard his statement made by him in his examinationinchief. As regards the site plan is concerned, it was submitted that it was not incumbent upon the investigating officer to have shown all the surroundings in the site plan. The necessary details were shown in the site plan. Even if no investigation was carried out by the investigating officer regarding locket, ring or mobile, same does not affect the case of prosecution. It was further submitted that testimony of Ashu finds substantial corroboration from the medical record. Moreover, knife which was recovered at the instance of accused Naresh was 11 sent to FSL and report substantially proves the case of prosecution. As such, it was submitted that prosecution has been able to establish its case beyond reasonable doubt, and as such accused persons are liable to be convicted.
12. I have given my considerable thoughts to respective submissions of the ld. Counsels for the parties and have perused the record.
13. As per prosecution case, on 09.11.07 ASI B.P. Singh was on emergency duty and was investigating DD No. 26A. At about 8.55pm, Constable Narender Kumar handed over DD No. 26A dated 09.11.07 from which ASI came to know that in house No. 148, Block No.18, in the street of Nand Nagri Market, in a quarrel, a knife blow has been given. In the meantime, ASI also received DD No. 29A pertaining to assault by a knife in B3 Primary School, Nand Nagri, Delhi. He along with Narender, Constable went to MCD, B4, Nand Nagri, Delhi, where no eyewitness was available and he came to know that injured has been removed to hospital. He found blood lying on the right side of the main gate. He also met chowkidar of the school, namely, Rakesh, who informed him that he had seen two or three boys beating one boy. When he raised alarm, those boys ran away. Somebody informed the PCR, who came at the spot and removed injured to hospital. After leaving Constable Narender at the spot for preserving the site, he reached GTB Hospital, where he collected MLC of injured and patient was declared brought dead by the doctor. Dead body was sent to mortuary for postmortem. One Mukesh, resident of A4/82, Nand Nagri, was found in the 12 hospital, who was weeping by the side of dead body. On inquiry, he informed the ASI that deceased was his real brother Mahesh @ Pappu and also informed him that his brother Mahesh had left his house at about 5pm along with his nephew Ashu and he came to know that a quarrel had taken place with some boys. Accordingly, endorsement was made on DD No. 29A and the same was sent through Constable Narender to police station. FIR was got registered. He came back to the spot. Crime team was called at the spot. Blood, blood stained earth, earth control, blood stained locket having photograph of Hanumanji, besides blood stained iron ring were lying at the spot, which were taken into possession. Postmortem was got conducted on the dead body. In the meantime, Ashu came to the police station and informed that he was eyewitness of the incident and narrated the incident. Thereafter, witness Kishan @ Gola also met police officials and on identification of Ashu and Kishan @ Gola, accused Arun @ Honey and Sanjeev @ Sanjay @ Manjan were apprehended. From the possession of Arun, one purse containing Rs.100/, photocopy of election Icard of the deceased and some papers were recovered. Thereafter, at the instance of the these two accused persons, accused Naresh was apprehended and at his instance knife was recovered. During the course of investigation, samples were sent to FSL and result was received. In order to substantiate its case, prosecution has relied upon the eyewitness account of three witnesses, namely, PW1 Ashu, PW2 Kishan @ Gola and PW3 Rakesh.
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14. Firstly, I shall deal with the testimony of PW3 Rakesh, who was working as watchman in MCD Primary School, B4, Nand Nagri, Delhi, on 09.11.07. This witness has testified that on that date at about 8.30pm, he heard a noise and therefore proceeded towards the back gate of the school. When he reached at the gate, he noticed one man lying on the ground in a pool of blood in injured condition. However, he did not see anyone assaulting the injured persons. None of the accused persons was arrested in his presence. However, he admitted his signatures on seizure memo of knife Ex.PW1/L, pointing out memo of place of incident of accused Honey Ex.PW1/O, pointing out memo of place of incident by accused Manjan @ Sanjay Ex.PW1/P, pointing out memo of place of recovery of knife by accused Naresh Ex.PW1/M. However, he went on stating that police had obtained his signatures on a blank paper. This witness was crossexamined by the ld. Prosecutor and in his crossexamination, he denied that when he reached towards the gate, he saw three persons and one of them was holding a blood stained knife in his hand and one of the boys, besides the injured was standing in frightened condition, or that all the three assailants, on his arrival, threatened him by staring at him and out of fear he went back inside the school. He was confronted with material portion of statement Ex.PW3/A, which he denied having made to the police. He, however, admitted that after short time police reached there and made inquiries from him. He however denied that recovery of knife was effected in his presence. 14
15. PW2 Kishan @ Gola has deposed that on 09.11.07 at about 8.30pm, at MCD Primary School, B4/3, Nand Nagri, accused Naresh Kumar, Arun @ Honey and Sanjeev @ Sanjay @ Manjan were snatching money from one boy, and when that boy resisted, accused Honey and Manjan caught hold of that boy and took him inside the school. At that time, one person, namely, Ashu was also with the victim. Accused Naresh stabbed with a knife in the chest of victim, as a result of which victim fell down and blood started oozing from his injuries. Accused Naresh threatened him on the point of knife, stating that in case he discloses anything to anyone, he would face the same fate. Out of fear, he fled away from the spot. Subsequently, he joined the investigation of the case and informed the investigating officer that he had witnessed the incident. On his identification and on identification of Ashu, accused Arun @ Honey and Manjan @ Sanjeev were arrested. Accusd Arun was arrested vide arrest memo Ex.PW1/A and his personal search was conducted vide memo Ex.PW1/B, both memos bear his signature at point A2 and B2 respectively. Accused Sanjeev @ Manjan was arrested vide arrest memo Ex.PW1/C and his personal search was conducted vide memo Ex.PW1/D, which bear his signatures at point C2 and D2 respectively. Accused Honey made disclosure statement Ex.PW1/E. From his possession, one purse, snatched by him from deceased, was recovered which contained Rs.100/, photocopy of election Icard, a few documents of deceased and the same were taken into possession vide memo Ex.PW1/F. Accused Sanjeev @ 15 Manjan also made disclosure statement Ex.PW1/G, which bear his signatures at point D2. Accused Naresh was arrested vide arrest memo Ex.PW1/H and his personal search was conducted vide memo Ex.PW1/J, and the same bear his signatures at point H2 and J2 respectively. Accused Naresh made his disclosure statement, in pursuance of which he got recovered weapon of offence, that is knife from roof of MCD Primary School, B4, Nand Nagri, Delhi, which was converted in a sealed parcel and seized vide memo Ex.PW1/M. Accused Naresh also pointed out the place of occurrence, vide memo Ex.PW1/Q. His (witness) statement was also recorded by the Magistrate under section 164 Cr.P.C, which is Ex.PW2/A and bear his signature at point X. He also identified knife Ex.P1 to be the same, which was recovered at the instance of accused Naresh. He also identified the purse Ex.P2, currency note Ex.P3, photocopy of election Icard Ex.P4, paper cutting Ex.P5 and piece of paper Ex.P6 to be the same which were recovered from possession of accused Honey.
16. Examinationinchief of this witness was recorded on 21.08.08 and 10.12.08. However, his crossexamination was deferred on request of counsel for accused and thereafter he appeared on 06.03.09. On that date, when he was crossexamined by the ld. Defence counel, he took a complete somersault and stated that on 20.11.07 police officials brought him to the Court and he made a statement before the Court and that statement was stated to him by the police officials. He went on stating that document 16 Ex.PW1/G was blank, when he signed the same. Police officials did not record his statement and his signatures were obtained on certain papers, which were blank. He further went on stating that whatever statement was given on 21.08.08, same was tutored to him by police out of the Court and the same was deposed at the instance of police. He further deposed that accused Sanjeev was not apprehended by the police in his presence. As regards accused Arun is concerned, he deposed that he was playing a match in the park, when he was taken by police officials. Since this witness had taken somersault, he was reexamined by the ld. Prosecutor and at that time, he admitted that he did not state before ld. MM, who recorded his statement u/s 164 Cr.P.C, that he has been tutored by police officials.
17. Firstly it may be mentioned that immediately after the incident, the investigating officer of the case had moved an application before Sh. Shailender Malik, ld. MM, for recording statement of this witness u/s 164 Cr.P.C., vide his application Ex.PW19/A. Sh. Vikas Dhall, who was working as MM has testified that after ascertaining the voluntary nature of witness Kishan @ Gola, he recorded his statement Ex.PW2/A, which bear his signatures at point X. The statement contained true and correct account of the incident given by Kishan before him. A perusal of this statement goes to show that witness has given an eyewitness account of entire incident and all the accused persons were arrested on his identification as well as on identification of Ashu. He has further detailed the manner in which accused 17 Naresh was apprehended at the instance of remaining two accused persons and at his instance knife was recovered from roof of the school. There is no suggestion to the ld. MM that witness did not make any statement voluntarily or that it was under pressure of police officials that he had made statement before him. Further more, submissions of the ld. Prosecutor that this witness was crossexamined, after a lapse of about three months of his cross examination, and by that time he was won over by the accused persons cannot be lost sight of as the record reveals that examinationinchief of this witness was recorded on 21.08.08. Further examination was deferred as the case property was not received from FSL by that date, therefore he was again examined on 10.12.08, when he identified the case property. Thereafter, his crossexamination was deferred. When this witness appeared on 06.03.09, that is, after a lapse of three months, then he completely took changed version by deposing that statement made before ld. MM or before the Court was at the instance of police officials.
18. 1991 Cr.L.J. 2653 (1), Khujji alias Surendra Tiwari V. State of M.P is a direct authority on the point in hand. In that case also, examination inchief of the witness was recorded on 16.11.76, when he identified all the assailants by name. His crossexamination commenced on 15.12.76. In that crossexamination, he stated that since the accused had their backs towards him, therefore, he could not see their faces. On the basis of that statement, it was submitted that evidence regarding identity of the accused was rendered 18 highly doubtful and it would be hazardous to convict the appellant solely on the basis of identification of such a wavering witness. Hon'ble High Court came to the conclusion, which was up held by Hon'ble Apex Court that during one month period that elapsed since the recording of his examinationin chief, something transpired which made him shift his evidence on the question of identity to help the appellant. His statement in crossexamination on the question of identification of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examinationin chief. As such, it was observed that there was no material contradiction to doubt his testimony. It was further observed that evidence of declared hostile is not wholly effaced from record and that part of evidence, which is otherwise acceptable can be acted upon. Reliance was placed on well settled decisions of Hon'ble Supreme Court--Bhagwan Singh v. State of Haryana, (1976) 2 SCR 921 : Air 1976 SC 202; Rabinder Kumar Dey v. State of Orissa, (1976) 4 SCC 233: AIR 1977 SC 170 and Sayed Akbar v. State of Karnatka, (1980) 1 SCR 95 : AIR 1979 SC 1848 - where it was held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.
19. Substantially, similar view was taken in 2009 (XI) AD SC 125 19 Alagarsamy & Ors. Vs. State by Deputy Superintendent of Police. In that case also, the witness was declared hostile at the fag end of his cross examination. The examinationinchief of witness was recorded on 02.04.01 and on the same day he was crossexamined by three defence counsels. Then only later on, on 26.06.01, when he was recalled, he was treated as hostile witness. Hon' ble High Court commented that witness was tried to be won over, after his crossexamination and this comment was approved by Hon'ble Apex Court and it was observed that law is now well settled that merely because witness is declared as hostile witness, whole of his evidence is not liable to be thrown away. Reference was made to Syed Akbar Vs. State of Karnatka, 1980 (1) SCC 30, Rabindera Kumar Dey vs. State of Orissa, 1976 (4) SCC 233 and Bhagwan Singh Vs. State of Haryana, 1976 (1) SCC 389.
20. In view of these authoritative pronoucements, keeping in view the fact at the earliest juncture, statement of Kishan @ Gola was recorded u/s 164 Cr.P.C by ld. MM, wherein he narrated entire incident coupled with the fact that he even supported the case of prosecution in his examinationin chief and was only later on that in his crossexamination he took a completely changed stand by stating that his statement made earlier was at the instance of the police, as such possibility of his wining over cannot be ruled out.
21. At this juncture, it will not be out of place to reproduce the observations made by Hon' ble Apex Court in Krishna Mochi vs. State of 20 Bihar, 2002 (6) SCC 81, which are as under : "It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or highups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of crossexamination, which may be sometimes, because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at the times under the stress of crossexamination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. These days, it is not difficult to gain over a witness by money power or giving him any other allurance or giving out threats to his life and/or property at the instance of persons, in/or close to powers and muscle men or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent."
21
In view of this observation, possibility of wining over of this witness by the time he came for his crossexamination in the Court and PW3 Rakesh cannot be ruled out.
22. Even if, it is taken that the statement of this witness (Kishan @ Gola) is discarded, even then there is testimony of Ashu (PW1), who has testified that deceased Mahesh @ Pappu was his maternal uncle. On 09.11.07, at about 5pm, he had gone to offer sweets to deceased Mahesh at his house. Mahesh intended to give a party to him. Therefore, he along with him had gone to Bhopura at UP Border to buy liquor. After buying liquor, they came back to his house and after performing Puja, his maternal uncle consumed some liquor. At about 8.30pm, he along with his maternal unlce, deceased Mahesh, had gone out of the house to see Deepavali. While walking, when they reached at B4 Block, Nand Nagri Primary School, and they were urinating near the drain. In the meantime, accused Naresh, Arun @ Honey and Sanjeev @ Sanjay @ Manjan came there and demanded money from them. When they refused to pay money, accused Naresh took out a knife. At the instructions of accused Naresh Kumar, accused Honey and Manjan took them towards primary school and took their search. From pocket of pant of his maternal uncle Mahesh, accused took out a sum of Rs.1,200/ and a few papers. Thereafter, they tried to take out mobile phone of his maternal uncle from his pocket, which was resisted by him by putting his hand in the pocket. Thereupon, accused Naresh stabbed his maternal 22 uncle at his hand. When Mahesh did not removed his hand from the pocket, accused Naresh asked Honey and Manjan to catch hold of his uncle. Thereafter, Honey and Manjan caught hold of hands of his maternal uncle, pushed him against the wall. Accused Naresh stabbed his maternal uncle on his chest. Injuries started bleeding. Mahesh raised alarm, on which chowkidar of school came there. Accused persons threatened him also. Therefore, Chowkidar went inside the school. Accused Naresh threatened him by pointing a blood stained knife towards him by stating that in case he informed about the incident to anyone, he would kill him. Parvesh, brother of accused Naresh Kumar, is also a bad character of the area. Due to fear of accused persons, he fled to his relative house. On the next day, he came to know that his maternal uncle has died. Then he reported the matter to police. Accused persons were known to him, as they were residing in the same area, and he had seen them on earlier occasions also. On 10.11.07, on his pointing out, in the presence of other public witness Kishan @ Gola, accused Arun @ Honey was apprehended by the police and his arrest memo Ex.PW1/A was prepared, which bear his signatures at point A. His personal search was also taken in his presence, vide memo Ex.PW1/B1, which bears his signatures at point B1. Accused Manjan @ Sanjay was also arrested in his presence and in the presence of public witness, namely, Kishan @ Gola vide arrest memo Ex.PW1/C, which bears his signatures at point C1, his personal search was taken vide memo Ex.PW1/D, which bears his signatures at point D1. 23 Accused Honey made disclosure statement Ex.PW1/E. From possession of accused Honey, purse of his maternal uncle was recovered, which was containing a sum of Rs.100/, photocopy of election Icard, a few documents which he identified and were converted into sealed parcels and was taken into possession vide memo Ex.PW1/F. Disclosure statement of Manjan @ Sanjay is Ex.PW1/G, which bears his signatures at point G1. Accused Naresh was also identified by him and public witness, namely, Kishan @ Gola and was arrested vide arrest memo Ex.PW1/H and his Personal search was taken vide memo Ex.PW1/J, on which his (witness) signature appear at point H1 and J1. Accused Naresh made disclosure statement Ex.PW1/K1. In pursuance of his disclosure statement, accused Naresh got recovered weapon of offence, that is, knife from roof of MCD Primary school, B4, Nand Nagri, Delhi. It was converted into sealed parcels and seized vide memo Ex.PW1/L, which bear his signatures at point L1. Accused Naresh also pointed the place of recovery of knife Ex.PW1/M. Sketch of knife Ex.PW1/N was also prepared. All the three accused persons pointed out the place of occurrence, vide pointing out memos Ex.PW1/O, Ex.PW1/P and Ex.PW1/Q. His statement was recorded by the ld. Magistrate u/s 164 Cr.PC, which is Ex.PW1/R and bears his signature at point X. He also identified the knife Ex.P1, which was recovered at the instance of accused Naresh. He also identifed purse Ex.P2, currency note Ex.P3, photocopy of election Icard Ex.P4 of deceased, paper cutting Ex.P5 and piece of paper Ex.P6 to be 24 same which were recovered from possession of accused Honey.
23. Perusal of record reveals that this witness was crossexamined on 12.01.09, 06.03.09 and 11.08.09 at great length. Despite searching cross examination, nothing material could be elicited to discard testimony of this witness.
24. As stated above, testimony of this witness was assailed by ld. defence counsel on the ground:
(i) He made material improvement in his statement before the Court.
(ii) He is an interested witness.
(iii) Omission to mention the name of accused Arun and Sanjeev in his statement recorded u/s 164 Cr.P.C.
(iv) His conduct of running away from the spot.
25. I shall deal with each of the submissions one by one.
26. As regards the plea that the witness had made material improvements in his deposition before the Court, reliance was placed on 1998 (2) CC Cases (S.C.) 45, Jag Narain Prasad vs. The State of Bihar and 2002 (2) JCC 1385, Mintoo Shah vs. State of NCT of Delhi. I have carefully gone through both these authorities. With due respect, both these authorities are on the fact and circumstances of the case involved in those cases. In Mintoo Shah (supra) the witness took a complete somersault from his earlier statement recorded u/s 161 Cr.P.C. However the witness was also confronted with his statement made to police and there was no further 25 corroboration. Under these circumstances, it was held by Hon'b le High Court that it was difficult to pin faith in his testimony and it was not sufficient to establish guilt of the accused. In Jag Narain Prasad (supra) also improvement was in regard to material aspect of the case.
27. However, in the instant case portion with which witness was confronted with his earlier statements, reflects that it was not on material aspect of the case.
In Sidhan Vs. State of Kerala, 1986 Cr.L.J. 470, it was held : '' Minor discrepancies regarding minute details of the incident including the sequence of events and overt acts are possible even in the versions of truthful witnesses. In fact such discrepancies are inevitable. Such minor discrepancies only add to the truthfulness of their evidence. If on the other hand these witnesses have given evidence with mechanical accuracy that much have been a reason to contend that they were giving tutored versions. Minor discrepancies on facts which do not affect the main fabric need not be taken into account by the Courts if the evidence of the witnesses is found acceptable on broad probabilities.'' Dealing with the aspect of exaggeration, Hon'b le Supreme Court in Bharwada Bhoginbhai Hirjibhai vs. State of Gujrat, AIR 1983 S.C. 753 observed that a witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, 26 or fill up details from imagination on the spur of the moment, but that would be no ground for discarding the evidence of the witness. The relevant observations are as under (para 13 of AIR 1988 SC 696) : "We have, however, also examined the relevant evidence. It is true that there are many contradictions in the evidence of Devji. He has not attributed overt acts to individual accused in his statement before the police whereas he has attributed such overt acts in his evidence before the Court. But that is no ground to reject his entire testimony. It must not be forgotten that he was a victim of the assault. Fortunately, he has survived. He must, therefore, be considered as the best eyewitness. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of man and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The 27 Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Hon' ble Jagamohan Reddy, J.
speaking for Hon'ble Supreme Court in Sohrab v. State of Madhya Pradesh, 1972 Cri.L.J. 1302 at p. 1305: AIR 1972 SC 2020 at p. 2024 observed : "Hon'ble Supreme Court has held that falsus in uno falsus omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered."
Substantially similar view was taken by Hon'ble Apex Court in Krishna Mochi (supra), wherein it was observed as under : "If a whole body of the testimony is to be rejected because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stage. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court 28 considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be satisfied with care. One hardly comes across a witness, whose evidence does not contain a grain of untruth or at any rate exaggeration, embroidery or embellishments. An attempt has to be made to separate the grain from the chaff."
At the other place, it was observed : "Thus, in a criminal trial a prosecutor is faced with so many odds. The Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower....
Some discrepancy is bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the Court should tread upon it, but if the same are boulders, the Court should not make an attempt to jump over the same."
The principles that can be culled out from the aforesaid decisions are that minor discrepancies and inconsistencies cannot be given undue importance. The Court has to see whether inconsistencies can go to the root of the matter and affect the truthfulness of the witnesses while keeping in view that discrepancies are inevitable in case of evidence of rustic and illiterate villagers, who speak them after long lapse of time. 29
28. In the instant case, a close scrutiny of testimony of this witness reveals that there is no material improvement which may make his testimony unreliable.
29. As regard the plea that no reliance can be placed on testimony of this witness, since he being nephew of the deceased is closely related to him, it may be mentioned that relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
In Dalip Singh and others v. The State of Punjab, AIR 1953 SC 364, it has been laid down as under : "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being being a foundation is often a sure 30 guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
30. In Masalti and others v. State of U.P., AIR 1965 SC 202, Hon'ble Supreme Court observed : (pp 209210 para 14) :
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much (such?) evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
Aforesaid authorities were also relied upon by Hon'ble Supreme Court in S. Sudershan Reddy v. State of Andhra Pradesh in Criminal Appeal No. 639 of 2005, Dated 20.07.06.
31. In view of these authoritative pronouncements, the submissions that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance.
As regards the challenged to testimony of this witness that he had 31 not mentioned the name of accused Arun and Sanjeev in his statement recorded under section 164 Cr.P.C before the ld. MM, although it is true that in this statement Ex.PW1/R, the witness has not specifically named these two accused persons. However, same is not fatal because statement of this witness was recorded u/s 161 Cr.P.C wherein he had clearly given the name of all the three accused persons, who were known to him from before. Further more, he had also identified all the three accused persons as the authors of crime, when he appeared in the Court. As observed by Hon'ble Justice Pradeep Nandrajog in Criminal Appeal No. 801/2004, Ansari Vs. State, decided on 09.01.2010 : ''I t is settled law that substantive evidence in criminal law is evidence in the Court pertaining to identification of accused in the Court. Under section 9 of the Evidence Act, facts which establish identity of the accused are relevant u/s 9 of the Evidence Act."
33. Under these circumstances, keeping in view the fact that in the statement recorded u/s 161 Cr.P.C, the witness had clearly named accused persons and he had also identified them before the Court, from mere fact that in the statement recorded u/s 164 Cr.P.C he named only Naresh and did not specifically gave names of remaining two accused persons, it cannot be said that he had not witnessed the incident or could not identify the accused persons correctly or falsely implicated them. For holding this view, I get support from statement of accused recorded u/s 313 Cr.P.C which is merely 32 one of the denial simplicitor and none of the accused are alleging any enmity, illwill or grudge against the witness for which reasons he will falsely implicate them in such a serious case.
34. Coming to the conduct of the witness Ashu, much has been said by the ld. Defence counsel for submitting that behaviour of the witness was quite unnatural, inasmuch as, even after witnessing that his maternal uncle had sustained such serious injuries, he neither took him to hospital nor informed anybody about the incident. Rather, he went to the house of his relative and slept there in the night. He approached the police only on next day evening, when he came to know that his maternal uncle has died. Therefore, it was submitted that he is not an eyewitness of the incident. Reliance was placed on Shankar Rao (supra) where the eyewitness had ran away from the spot to inform people, leaving the brother in distress, his conduct was held to be unnatural. However, ld. Defence counsel themselves relied upon 1990 Cr.L.J. 2531, State of Gujrat Vs. Bharwada Jagshibhai Nagribhai & Ors. In that case also, the eyewitness ran away from place of incident and ld. Trial Court took his conduct to be unnatural by observing that if such a incident had actually taken place, the eyewitness would have intervened and tried to save his uncle and would not have ran away. Hon' ble High Court observed that where the eyewitness to the incident of fatal assault was related to the deceased, and was also doing business along with the deceased, his presence with deceased at time of incident, which took place when both of 33 them were going home after closing their business premises was most natural. Evidence of such eyewitness cannot be discarded merely on ground that he ran away from the place of incident. It is difficult to decide how a witness would react in a situation where his relative is assaulted. Every witness reacts in his own way. Merely because he runs away to keep him away from the spot, it would not mean that his conduct is unnatural. There are no set rules of reaction and, therefore, to discard the evidence of the witness on the ground that he has not reacted in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. Further, the observation made by the learned Judge that the conduct of the witness in that the witness has not informed the other persons except his mother is also unnatural and, therefore, his evidence should be discarded, is unreasonable. In our view, the learned Judge ought to have considered the fact that in a village or in any locality if this type of incident occurs, the occurrence of the incident is reported like a wild fire. Similarly the facts that the eye witness had not narrated the incident to anybody except his mother and the fact that he had not gone to the police station to lodge FIR cannot also be grounds to discard his testimony which is most consistent, cogent and reliable.
Hon'ble Supreme Court in Criminal Appeal No. 52 of 1980, dated 12.05.1983, Rana Pratap vs. State of Haryana, also observed that every witness who witnesses a murder reacts in his own way. Some are stunned, became speechless and stand rooted to the spot. Some became 34 hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter attaching the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.
35. Turning to the case in hand, it has to be kept in mind that witness was aged about 17 years old, at the time of incident. It has come in his testimony that accused Naresh threatened him by pointing out a blood stained knife towards him by stating that in case he informs about the the incident to anyone, then he would kill him. Brother of accused Naresh, namely, Parvesh is also a bad character of the area. Due to fear of accused persons, he fled to his relative house and came to know on the next day that his maternal uncle has died. He went to police station and informed about the incident. The conduct of the witness in not narrating the incident to anybody is not unnatural. More particularly, keeping in view his young age, coupled with the fact that he had been threatened by accused Naresh by pointing blood stained knife to him, and threatening him to meet the same fate, in case he would inform the incident to anyone. Besides that brother of accused Naresh is also a bad character of the area, this may be the reason that witness came under the grip of fear, and therefore fled to his relative house 35 and kept mum, and it was only on the following day, he mustered courage and went to police station and then narrated entire incident.
36. Under these circumstances, ground on which testimony of this witness has been assailed by ld. Counsel for the accused has not substance. Rather, it is not a case where witness was introduced later on. In fact, it has come in the testimony of Inspector Bachchu Singh that Mukesh, brother of deceased, informed him that his deceased brother had gone with Ashu in the evening at about 5pm. Thereafter, he searched for Ashu, but could not be traced. After carrying out investigation of the case, when he came back to police station, Ashu was present there. He made inquiries from him and recorded his statement. That being so, it is also proved that it was Ashu, who was last seen with the deceased.
Further, as stated above, despite searching crossexamination, nothing material could be elicited to discredit his testimony. Testimony of this witness is reliable, trustworthy and inspires confidence. Facts unfolded by this witness are found consistent. No inherent infirmity, attacking substratum of the case, is noted in his testimony. He projected sequence of events in cohesive manner. True account of events has been portrayed by him. He fared well during the course of crossexamination. Defence could not dispel the case detailed by this witness. He is a reliable witness and accountability of accused can be adjudged on his sole testimony. It is well settled that in a criminal trial, credible evidence of even a solitary witness can be formed 36 basis of conviction.
37. Further more, testimony of PW1 Ashu finds corroboration from medical record. As stated above, PW1 Ashu has testified that when accused tried to take out mobile phone of his maternal uncle from his pocket, it was resisted by him by putting his hand on the back. Thereupon, accused Naresh stabbed his maternal uncle on his hand. Thereafter, when maternal uncle of this witness did not lift his hand from pocket, then at the instance of accused Naresh, accused Honey and Manjan caught hold of his hand and thereafter accused Naresh stabbed his uncle on his chest. This part of his testimony finds substantial corroboration from postmortem report.
38. Postmortem on the dead body of Mahesh @ Pappu was conducted by Dr. Sumit Tellewar (PW14). On examination, he found following antemortem injuries on the person of deceased : (1) Reddish grazed abrasion 4cm X 3.5cm present over the right shoulder tip.
(2) Incised wound measuring 2.4cm X 0.2cm X 0.2 cm present vertically over the dorsal aspect of left wrist joint.
(3) Incised wound measuring 2.5cm X 0.2cm X 0.2 cm present on the anterolateral aspect of right lower thigh, 3cm above the right knee joint.
(4) Incised stabbed wound measuring 2cm X0.3cm on surface present slightly obliquely over the chest. It is upper median angel is blunt and is 3cm from the middle eye and its lower lateral angle is acute and is 6.5cm 37 above and medial to left nipple. The wound goes forward downward and medially cutting the skin and soft tissues, enter the left chest cavity by cutting through the first inter postal space and second costal cartilage, then piercing through the upper lob of left lung, it cuts the arch of aorta, thus, making the total depth of 7.6cm.
(5) Incised stabbed wound measuring 1.6cm X 0.2cm on surface present obliquely over the ventral aspect of right forearm, its upper medial angle is acute and lies 2cm below the mid of right cubital fossk, its lower lateral angle is blunt and is 4.5cm below and lateral medial epicolydyle of humerous. The wound goes inwards and upwards cutting the soft tissue only to a depth of 2.3cm.
39. Under these circumstances, factum of stabbing Mahesh on his hand and chest finds substantial corroboration from injury No.2 and 4 as mentioned in the postmortem report.
40. As regards the deposition of PW1 Ashu regarding recovery of purse containing documents from accused Honey and knife from accused Naresh, same also find corroboration from the testimony of police officials.
41. As per the testimony of Bachchu Singh, Inspector, after he came to police station after conducting postmortem on the dead body of Mahesh @ Pappu, he found one person, namely, Ashu present in the police station. On inquiry, he recorded his statement. Thereafter, he along with Ashu went to park B4, Nand Nagri, Delhi, in Tata407 vehicle. Witness Kishan @ Gola 38 also met him on the way, who got stopped their vehicle and informed that murderers of Mahesh @ Pappu are known to him, and they are presently available in a park. Thereafter, he along with his staff, Ashu and Kishan, went to the park, where two accused persons, namely, Arun and Sanjay were found inside the park. On the pointing of Ashu and Kishan @ Gola, accused Arun and Sanjay were overpowered. Thereafter, from pocket of the pant of accused Honey, a black colour purse containing Rs.100/, election Icard of Mahesh and some other documents were recovered. Both these accused pointed out the place of occurrence and made disclosure statements stating that they can get their coaccused Naresh arrested. Thereupon, they led the police party to the house of accused Naresh, that is, B4/353, Nand Nagri, Delhi. Accused Naresh was found standing in front of his house. He was overpowered. He made disclosure statement Ex.PW1/K to the effect that he can get recovered knife from roof of the school, as he had thrown the same there. Thereafter, accused Naresh took police party to the roof of Primary School, Nand Nagri, and one button actuated knife having blood stains was recovered. Sketch of the knife Ex.PW1/N was prepared. It was kept in a pullanda and was sealed with seal of BS and was taken into possession vide memo Ex.PW1/H. He also prepared the pointing out memo of place of occurrence at the instance of accused and also pointing out memo of roof of Primary school from where knife was recovered, which are Ex.PW1/Q and Ex.PW1/M. Under these circumstances, recovery of knife at the instance of 39 accused Naresh in pursuance to his disclosure statement stand proved and same is admissible in evidence u/s 27 of Evidence Act. The mere fact that PW Rakesh who was also a witness to the recovery of knife has not supported the case of prosecution and Kishan @ Gola has also resiled from his earlier statement, does not make the recovery doubtful, inasmuch as, there is no reason to disbelieve either PW Ashu or the police officials.
42. It is further the case of prosecution that on receipt of DD ASI Bhupinder Singh reached MCD Primary School, B3 Block, Nand Nagri, Delhi. He found blood lying in plenty near the gate of school. Blood was also there on the boundary wall. From the spot, Inspector Bachchu Singh lifted blood, blood stained earth, earth control, which were kept in separate pullandas and were sealed with seal of BS and same was taken into possession vide memo Ex.PW16/B. The seized parcels were deposited in malkhana. Dr. Sumit Tellewar, who conducted postmortem on the dead body of deceased Mahesh seized clothes of deceased and blood on gauze and handed over the same to investigating officer after completion of autopsy. These articles were also deposited in malkhana. On 09.01.08, exhibits of the case were sent to FSL Rohini, through Constable Lakhinder Singh, vide R.C. No. 333/21. Exhibits were examined by Sh. V. Shankarnarayanan, who gave his report Ex.PW20/A and Ex.PW20/B. As per report of FSL following articles were received : 40 Parcel '1 ' One sealed cloth parcel sealed with seal of 'B .S.' containing exhibit '1' kept in a plastic container.
Exhibit ' 1' Cemented material having brownish stains.
Parcel '2 ' One sealed cloth parcel sealed with the seal of 'B.S. ' containing exhibit '2 ' kept in a plastic container.
Exhibit ' 2' Cemented material.
Parcel '3 ' One sealed cloth parcel sealed with the seal of 'B.S. ' containing exhibit '3 ' , kept in a plastic container.
Exhibit ' 3' Cotton wool swab having darker stains.
Parcel '4 ' One sealed cloth parcel sealed with the seal of 'B.S. ' containing exhibit '4 ' , kept in a plastic container.
Exhibit ' 4' One iron ring.
Parcel '5 ' One sealed cloth parcel sealed with the seal of 'B.S' containing exhibit '5 ' kept in a plastic container.
Exhibit ' 5' One locket having brownish stains.
Parcel '6 ' One sealed cloth parcel sealed with the seal of 'B.S. ' containing exhibit '6 ' .
Exhibit ' 6' One all metallic knife having brown stains.
Parcel '7 ' One sealed cloth parcel sealed with the seal of 'SR' containing exhibits '7 a', '7 b', '7c ' and '7d'.
Exhibit ' 7a' One shirt having brown stains.
Exhibit ' 7b' One banian having brown stains.
Exhibit ' 7c' One pant having brown stains.
Exhibit ' 7d' One underwear having brown stains.
41Parcel '8 ' One sealed envelope sealed with the seal of 'S R' containing exhibit '8'.
Exhibit ' 8' Brown gauze cloth piece described as 'Blood on gauge'.
Result of analysis was as under :
1. Blood was detected on exhibits ' 1', '3 ' ,'5', '6', '7a', '7b ' ,'7c' '7 d' and '8 '.
2. Blood could not be detected on exhibits '2' and '4'.
3. Report of serological analysis was as under : Exhibits Species of Origin ABO Group/Remarks Blood stains : Blood stained cemented Human '1' ' A' G roup material '2' Cemented material (Control) No reaction '3' Cotton wool swab Human No reaction '5' Locket Human 'A' G roup '6' Knife Human 'A' G roup '7a' Shirt Human 'A' G roup '7b' Banian Human 'A' G roup '7c' Pants Human 'A' G roup '7d' Underwear Human 'A' G roup '8' Blood stained gauze cloth Human 'A' G roup
43. A perusal of this report goes to show that blood group of deceased was opined to be "A" group. On the shirt, banyan, pant and underwear of deceased blood was detected and the same was opined to be of "A" group. Blood stains on cemented material was also opined to be of "A" group. Knife 42 which was recovered at the instance of accused Naresh was also having blood, which was also opined to be of "A" group. This report conclusively proves the case of prosecution.
44. Further more, as per report of Dr. Tellewar, the injuries to Aerota was produced by a sharp cutting/edged weapon and this injury was sufficient to cause death in ordinary course of nature. The witness denied the suggestion that this injury, besides injury No. 2,3 and 5 were possible by fall on a pointed object. Needless to say, knife is a sharp cutting edged weapon. Under these circumstances, the medical evidence, coupled with expert evidence proves it beyond reasonable doubt that injuries on the person of Mahesh @ Pappu were caused by a knife, which was recovered at the instance of accused Naresh.
45. The sum up of aforesaid discussion is that as regards accused Naresh is concerned:
(i) there is eyewitness account of the incident given by PW1 Ashu, who has given a detail and vivid account as to how the accused took out money from pocket of his uncle and thereafter, when they tried to take out his mobile phone, which was resisted by his uncle by putting his hand on the pocket, accused Naresh stabbed on his hand and thereafter when his maternal uncle did not lift his hand from his pocket, coaccused Honey and Manjan caught hold of his maternal uncle and accused Naresh stabbed on his chest.
(ii) When postmortem on the dead body of Mahesh @ Pappu was conducted 43 by the doctor, besides other injuries, he also opined incised wound over the dorsum aspect of left wrist joint and incised wound over the chest, and the injury on the chest was opined to be sufficient to cause death in ordinary course of nature.
(iii) At the instance of coaccused Honey and Sanjeev @ Manjan, accused Naresh was apprehended from his house and he made disclosure statement Ex.PW1/K and led the police party to the roof of school from where blood stained knife was recovered. (4) Blood stained clothes, blood of deceased, blood stained cemented material and knife were sent to FSL which not only opined that blood was detected, on these exhibits, but the same was opined to be of same group, that is, "A".
46. As regards the accused Honey is concerned, following incriminating material has come on record : (1) Direct evidence given by Ashu regarding role played by this accused and his correct identification in the Court.
(2) His arrest from the park at the instance of witness Ashu and Kishan @ Gola. Although Kishan @ Gola had taken a complete changed stand in his crossexamination, however, his testimony in regard to the fact that he was apprehended from park by the police officials is even admitted by him in crossexamination, inasmuch as, it has come that accused Arun was playing a match in the park, when he was taken by police officials. (3) When this accused was apprehended, he produced one black colour 44 purse Ex.P2 from back of his pant, containing Rs.100/, photocopy of election Icard Ex.P4 of deceased Mahesh, one newspaper cutting Ex.P5, one piece of plain cloth Ex.P6. Accused did not claim the purse as belonging to him. On other hand, Ashu has clearly identified the purse Ex.P2 as the belonging to his maternal uncle containing the articles therein. (5) Besides pointing out the place of occurrence, he also made disclosure statement that he can get the coaccused Naresh arrested. He then led the police party to house of co accused Naresh and got him arrested.
47. As regards accused Sanjeev @ Manjan is concerned, PW1 Ashu has identified him as one of the assailants of the crime and role played by him to the effect that this accused along with coaccused Honey, on the asking of coaccused Naresh caught hold of hands of Mahesh and pushed him against the wall, and thereafter accused Naresh stabbed Mahesh on his chest. As such, participation in commission of crime is clearly spelt out in the testimony of PW1 Ashu. (2) At the instance of Ashu and police officials, this accused was apprehended from Park B4, Nand Nagri Delhi. Although he has taken a plea that he was lifted from his office at M/s SRS Value Bazar, Durga Puri Chowk, Shahdara, Delhi, however, this plea has not been substantiated by him by leading any evidence in his defence. On the other hand, there is no reason to disbelieve version of prosecution witness. (3) He pointed out the place of incident to the police, made disclosure statement and got his co accused Naresh arrested from his house.
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48. As regards submissions of ld. Counsel for the accused that no investigation was carried out by the police officials as to whom the locket and ring, which were recovered from spot, belonged or the mobile recovered from the deceased, it may be mentioned that this is a lapse on the part of investigating officer of the case, but itself is not sufficient to discredit the case of prosecution. For holding this view, I am fortified by State of Karnatka Vs. K. Yarappa Reddy, 1999 (8) SCC 715, where it was observed as under : "It is well settled that even if investigation is illegal or even suspicious, the rest of the evidence must be scrutinize independently of the impact of it. Otherwise, the criminal trial will plummet to the level of investigating officers ruling the roost. The Court must have predominence and preeminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for wrongs committed by the investigating officers in this case. In other words, if the Court is convinced that the testimony of a witness to the occurrence is true, the court is free to act on it albeit the Investigating Officer's suspicious role in the case."
49. As regards the site plan is concerned, ld. Counsel for the accused relied upon 2005 Cr.L.J. 299, Vijay Singh Vs. State of M.P and 1994 Cr.L.J. 2526, Bashir Shah & Ors Vs. State of Rajasthan. In Vijay Singh (supra) it was observed by Hon' ble Madhya Pradesh High Court that preparation of site plan is not mere a formality, it is an essential feature in 46 order to reach a firm conclusion, as to whether offence committed by the accused or not. In that case in the site plan, place from where accused hired gun and the place where deceased was standing were not indicated and therefore benefit was given to the accused. Similarly, in Bashir Shah (supra) the site plan did not show the place from where eyewitness had seen the occurrence and this omission was proved to be fatal. In the instant case, the only flaw pointed out in the site plan was that chappars were not shown. That was not, in fact, required to be shown, as such these authorities do not help the accused.
50. As regards last limb of argument of ld. Defence counsel that no investigation was carried out by the investigating officer regarding newspaper cutting, recovered from purse of deceased and murder might have been committed by the fair price shop owner, whose shop was closed due to complaint made by the deceased, it may be mentioned that even if, no investigation was carried out by the investigating officer in regard to newspaper cutting, same is of no consequence. I have perused the newspaper cutting, there is nothing in that newspaper cutting to show that shop of fair price owner was closed on any complaint made by the deceased. Under these circumstances, no such inference as was sought to be raised by ld. Defence counsel can be drawn from newspaper cutting recovered from purse of the deceased. Moreover, no such plea was taken by any of the accused in their statement recorded u/s 313 Cr.P.C. 47
51. As regards defence of accused is concerned, same is denial simplicitor. None of the accused persons has claimed any enmity, illwill or grudge against the public witnesses or the police officials, for which reasons they would be falsely implicated in this case. Accused Naresh has taken a plea that his brother Pravesh is bad character of the area, Nand Nagri, and is having inimical terms with police officials. Due to this reason, police officials of Nand Nagri has falsely implicated him in this case. This plea is absolutely devoid of merits, inasmuch as, even if brother of accused is bad character of police station Nand Nagri, it does not appeal to reason that for that reason police officials will implicate him in this case. If the police officials wanted to falsely implicate any person in this case, it would have been more convenient for them to implicate his brother, who was bad character of police station, rather than this accused. At the risk of repetition, it may be mentioned that neither any enmity, illwill nor any grudge has been alleged against any of the public witnesses, namely, Ashu, Kishan @ Gola and Rakesh and the police officials for which reasons they would falsely implicate them in this case. On the other hand, prosecution case stands established from ocular evidence which finds substantial corroboration from medical evidence as well as expert evidence.
52. Accused have examined DW1 Sh. Sumer Chand Jain, Principal of Primary School, who has deposed that it is a single storey building. Inside the school, there is Mazar of Peer Baba. There are two gates in the school, one 48 is small and other is big one. Outside the small gate, there is a "chappar" of plastic and there are also residential houses and shops. Initially, the school building was of 'L' shaped. Now four rooms have been constructed and therefore now it is ' U' shape. In crossexamination, he admitted that on the day of Deepavali, in the year, 2007, one murder took place near MCD School. It is not understandable as to how this witness demolishes the case of prosecution or what benefit accused gets from the testimony of this witness, inasmuch as, it has came in the testimony of prosecution witnesses that murder had taken place near the MCD School, there are two gates in the school. Even if, according to this witness, there is a "chappar" of plastic, outside the small gate, besides residential houses and shops, which are not shown in site plan, same is not of any consequence.
53. Under these circumstances, prosecution has been able to establish its case beyond shadow of reasonable doubt that accused Arun and Sanjeev caught the deceased and held him and Naresh stabbed him. The fact that all the three accused came together, two of them held the deceased, while third stabbed him clearly indicate that they shared common intention. The common intention was not only to commit robbery but also to do away with the deceased when he did not dance to their tunes. Under these circumstances, I hold that all the accused persons, in furtherance of their common intention committed robbery and robbed deceased Mahesh @ Pappu of his wallet, containing cash amount, some documents and this was done by accused 49 Naresh, when he was armed with knife, as such while accused Arun and Sanjeev are held guilty for offence punishable under section 392 read with section 34 IPC. Accused Naresh is also held guilty for offence punishable under section 397 IPC. Further, it has been proved that all the accused persons in furtherance of their common intention committed murder of Mahesh @ Pappu, as such all the accused persons are also held guilty for offence punishable under section 302 read with section 34 IPC.
Announced in the Open Court (Sunita Gupta)
th
On this 11 day of February, 2009 District JudgeVII/NEcumASJ,
Karkardooma Courts, Delhi.
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IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGEVII/NECUM ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI : S.C. No. 27/08
State Vs. 1. Naresh Kumar S/o Ram Singh, R/o H.No. B4/353, Nand Nagri, Delhi.
2. Arun Kumar @ Hanni S/o Dinesh Kumar, R/o H.No. B4/139, Nand Nagri, Delhi.
3. Sanjeev @ Sanjay @ Manjan S/o Ram Chandra, R/o H.No. B3/301, Nand Nagri, Delhi.FIR No. 965/07
PS Nand Nagri U/s 302/392/397/34 IPC.
Leniency in punishment has been claimed by Sh. A.A. Khan, Advocate, on behalf of convict Sanjeev @ Sanjay @ Manjan. He presents that convict Sanjeev is a young boy, aged about 20 years, and is the only earning member to support his family, consisting of an old widow mother, four brothers and one sister. He further presents that this is the first offence committed by convict Sanjeev, who has yet to start his life and is having clean antecedent. As such, he submits that convict Sanjeev may be dealt with leniency while awarding sentence to him.
2. Convict Naresh, who is aged about 27 years, submits that he is the only earning hand to support his family, consisting of his two children and wife. He further claims that in case he is given capital punishment, then his family would starve. As such, he claims that he should be dealt with leniency while awarding sentence.
3. Sh. Ranbir Singh, Advocate, for Convict Arun @ Honey submits that he is a young man, aged about 21 years. He further submits that convict Arun 51 is the only earning hand in his family to support his two brothers and two sisters, besides a widow mother. He further submits that convict has never been a previous convict and this is the first offence committed by him. It is not a rarest of rare case, where capital punishment would meet ends of justice. As such leniency in punishment is claimed by Sh. Ranbir Singh on behalf of convict Arun @ Honey.
4. On 09.11.07, at about 5pm, Ashu had gone to offer sweets to his maternal uncle Mahesh at his house. Mahesh intended to give a party to him. Therefore, he along with him had gone to Bhopura at UP Border to buy liquor. After buying liquor, they came back to his house and after performing Puja, his maternal uncle consumed some liquor. At about 8.30pm, Ashu along with his maternal uncle Mahesh, had gone out of the house to see Deepavali. While walking, when they reached at B4 Block, Nand Nagri Primary School, and they were urinating near the drain. In the meantime, convict persons, namely, Naresh, Arun @ Honey and Sanjeev @ Sanjay @ Manjan came there and demanded money from them. When they refused to pay money, convict Naresh took out a knife. At the instructions of convict Naresh Kumar, other convict persons, namely, Arun @ Honey and Sanjeev @ Sanjay @ Manjan took them towards primary school and took their search. From pocket of pant of Mahesh, convict persons took out a sum of Rs.1,200/ and a few papers. Thereafter, they tried to take out mobile phone of Mahesh from his pocket, which was resisted by him by putting his hand in the pocket. 52 Thereupon, convict Naresh stabbed Mahesh at his hand. When Mahesh did not removed his hand from the pocket, convict Naresh asked convict Arun @ Honey and Sanjeev @ Sanjay @ Manjan to catch hold Mahesh. Thereafter, Honey and Manjan caught hold of hands of Mahesh, pushed him against the wall. Convict Naresh stabbed Mahesh on his chest. Injuries started bleeding. Mahesh raised alarm, on which chowkidar of school came there. Convict persons threatened him also. Therefore, Chowkidar went inside the school. Convict Naresh also threatened Ashu by pointing a blood stained knife towards him by stating that in case he informed about the incident to anyone, he would kill him. Due to fear of convict persons, Ashu fled to his relative house. On the next day, he came to know that his maternal uncle Mahesh has died. Then matter was reported to police by Ashu. On 10.11.07, on pointing out of Ashu and Kishan @ Gola, convict persons Arun @ Honey and Sanjeev @ Sanjay @ Manjan were arrested, who got arrested convict Naresh in the case.
5. From the facts and circumstances, detailed above, it is evident that an alarming offence was committed by convict Naresh, Arun @ Honey and Sanjeev @ Sanjay @ Manjan. However, it is not the rarest of rare case to award ultimate penalty of death. But aggravating circumstances of offence over weigh mitigating factors presented by or on behalf of the convict persons. I do not find it to be a case for leniency in the matter of sentence, which is to be awarded to them. Considering all these facts, all the convict 53 persons are sentenced to undergo imprisonment for life and to pay a fine of Rs.4,000/ each for offence punishable under section 302 read with section 34 IPC. In default of payment of fine, they would further undergo RI for 9 months each. Convict Arun @ Honey and Sanjeev @ Sanjay @ Manjan are also sentenced to undergo RI for five years and to pay a fine of Rs.1,000/ each for offence punishable under section 392 read with section 34 IPC. In default of payment of fine, they would further undergo RI for three months each. However, convict Naresh is further sentenced to undergo RI for seven years for offence punishable under section 397 IPC.
6. Substantive sentences awarded to convict persons shall run concurrently. They will get benefit of period already undergone in detention during investigation and trial of the case. A copy of the judgement and order on sentence be supplied to them free of cost.
Announced in the Open Court (Sunita Gupta) On this 20th day of February, 2010. Distt. JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.