Indian Kanoon - Search engine for Indian Law

Delhi District Court

State vs . 1. Ajay Kumar Sharma S/O Om Prakash, R/O ... on 23 November, 2007

                                          ­1­

IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS JUDGE :               
                 KARKARDOOMA COURTS : DELHI :

Sessions Case No.52/05
Date of Institution :­ 09.12.05
Date on which reserved for order :­ 13.11.07
Date of Delivery of Judgement :­ 23.11.07

State  Vs.    1.     Ajay Kumar Sharma S/o Om Prakash, R/o 9/175, Main Road, 
                     Gandhi Nagar, Delhi. (since deceased)

              2.     Swami Nath Sukla S/o Sh. Deep Narain, R/o 214, Ghas Mandi,
                     Gandhi Nagar, Delhi. (since deceased)

              3.     Rakesh  Kumar  @  Gappu  S/o Sh. Shankar,  R/o 215,  Ghas  
                     Mandi, Gandhi Nagar, Delhi. 

              4.     Ram Chander S/o Sh. Sunder Lal, R/o 214, Ghas Mandi, 
                     Gandhi Nagar, Delhi.

              5.     Sonu S/o Sh. Sampat Ram, R/o 214, Ghas Mandi, 
                     Gandhi Nagar, Delhi.

              6.     Ram Shankar @ Bhoora S/o Sh. Mathura Prasad, R/o A­
                     100/182, Som Bazar, Gali No.16, South Gambri, Bhajanpura, 
                     Delhi.

              7.     Dinesh   Kumar   @   Kalwa   S/o   Hari   Shankar,   R/o   215,   Ghas  
                     Mandi, Gandhi Nagar, Delhi.

              8.     Ram Gopal @ Krishan Gopal S/o Swami Nath, R/o 214, Ghas 
                     Mandi, Gandhi Nagar, Delhi.

              9.     Hari   Shankar   S/o   Mathura   Prasad,   R/o   215,   Ghas   Mandi,  
                     Gandhi Nagar, Delhi.

              10.    Ramu Master S/o Jag Nath, R/o 214, Ghas Mandi, 
                     Gandhi Nagar, Delhi.

       FIR No. 93/98
       PS Gandhi Nagar. 
       U/S 148/147/452/302/149 IPC.
       State Vs. Rakesh @ Gappu etc.
                                           ­2­

                                     J U D G E M E N T :

­ Kamla Devi used to reside in H.No. 214, Ghas Mandi, Kailash Nagar, Delhi, along with her husband and other family members. On night intervening 14/15­07­98 at about 10.30pm, Kamla Devi was cooking food. Her husband Jagat Narain was lying on a got outside his house. In the meantime, Hari Shankar and his sons, namely, Dinesh @ Kalwa, Rakesh, Sonu and Swami Nath Sukla, his son Ram Gopal @ Badku, Bhura @ Ram Shankar, Ram Chander Ghasiyara and Ramu Master came there. They started abusing her and her husband in filthiest language and questioned her husband as to why he used to call vagabonds there. They declared that that day they will finish her husband. A property dispute was going on between her husband and the aforesaid persons prior to that day. When she heard aforesaid persons abusing and declaring their intentions, she came out of her kitchen and reached near her husband. She found Swami Nath Sukla, Ram Gopal and Sonu armed with clubs. Hari Shankar Gupta and his sons, namely, Dinesh @ Kalwa and Rakesh abused her husband and exhorted their associates, "assault the bastard". Dinesh @ Kalwa and Rakesh had overpowered her husband. Her husband got himself released from them and went inside the house. She also went inside the house in order to save her husband. All persons referred above ­3­ came inside their house and attacked her husband with clubs, lathis and stones. Dinesh and Rakesh had caught hold of her husband, while Swami Nath Sukla, Ram Gopal and Sonu gave beatings to him with clubs and lathis, while others gave him stones, fist and kick blows. In the meantime, her younger son, Pawan Kumar reached there along with his three wheeler scooter. She along with her son Pawan raised an alarm for help. All the aforesaid persons gave beatings to her husband and ran away. Her husband had sustained injuries over his head, both legs and other parts of body. He started bleeding and became unconscious. She declared that aforesaid persons had assaulted her husband with intention to attempt on her life.

2. A telephone call was made by someone in police station, Gandhi Nagar, and DD No. 25A was recorded. Said DD entry was assigned to Mohan Singh SI for action in the matter. In the meantime, Smt. Kamla Devi took her husband to police station, Gandhi Nagar. Jagat Narain was sent to SDN Hospital along with constable Ashok Kumar. Mohan Singh SI also reached SDN Hospital and obtained MLC of Jagat Narain, who was declared unfit for statement. He recorded statement of Smt. Kamla Devi and got the case registered for offences punishable under sections 452 and 307 read with section 34 of the Penal Code. He took up investigation and prepared site plan.

­4­ On 15.07.98, Rakesh Kumar @ Gappu was arrested. On 17.07.98, Jagat Narain expired in LNJP Hospital. Offence punishable under section 302 of the Penal Code was added to the case. On 18.07.98, accused Ram Chander Ghasiyara, Swami Nath Sukla, Sonu and Ramu Master were arrested in the case. On 19.07.98, inquest proceedings were concluded and autopsy on dead body of Jagat Narain was got done. Investigation was assigned to Manmohan Singh Inspector.

3. Accused Ajay Kumar Sharma was arrested in the case by Manmohan Sharma, Inspector. On 15.9.98, Manmohan Sharma was transferred. Investigation was taken up by Mahesh Kumar, Inspector. Statement of witnesses were recorded. On 19.09.98, Ram Shankar @ Bhura and Dinesh @ Kalwa were formally arrested, when they surrendered before the Court. On 22.09.98, accused Ram Gopal @ Krishan Pal @ Badku was arrested, when he surrendered before the Court. Documents relating to dispute of property were collected. Two lathis were seized and same were produced before police by Smt. Kamla Devi. Accused Hari Shankar was formally arrested, on account of indulgence of the Hon'ble Apex Court. Investigation culminated into a chargesheet against accused persons, including accused Hari Shankar.

­5­

4. Charge for offences punishable under sections 147, 452 and 302 read with section 149 of the Penal Code was framed against accused persons, besides a separate charge for offences punishable under section 148 of the Penal Code framed against accused Swami Nath Sukla, Ram Gopal and Sonu, to which charges accused persons pleaded not guilty and claimed trial.

5. During the course of trial accused Ajay Kumar Sharma and Swami Nath Sukla expired on 04.09.2001 and 08.10.04 respectively. Hence proceedings against them were dropped, vide orders dated 19.10.2001 and 14.12.04 respectively.

6. To substantiate charges, prosecution has examined Sonu Kaushik, Constable (PW1), Ashok Kumar, Constable (PW2), Kamlesh Kumar Pandey (PW3), Swarup Singh, Head Constable (PW4), Atul Sood SI (PW5), Ranbir, Constable (PW6), Hirdaya Narain (PW7), Shailender Kumar, Ahlmed (PW8), Manmohan Sharma, Inspector (PW9), Mahender Singh, Inspector (PW10), Dinesh Tiwari, Inspector (PW11), Pawan Kumar (PW12), Dr. R.S. Srivastava (PW13), Dr. Anil Kumar Mittal (PW14), Surjeet Pal Dhawan (PW15), Smt. Kamla Devi (PW16), Kumari Puja (PW17), Harinder Singh, Head Constable (PW18), Jai Prakash ASI (PW19), Mahesh Kumar, Inspector (PW20), Vijay Prakash, Constable (PW21), Mohan Singh SI (PW22), V.K. ­6­ Parathe, Constable (PW23), Narpal Singh, Constable (PW24) and Khushi Ram, Head Constable (PW25) in the case.

7. Surjeet Pal Dhawan was examined on 21.07.2000 and his cross­ examination was deferred at the request of defence. Thereafter, he appeared before the Court on 16.08.2000 as well as on 14.12.2000. But he could not be cross­examined. He expired on 14.01.01 as detailed in ordersheet dated 06.02.01. Hence, it is evident that Surjeet Pal Dhawan could not be produced for further cross­ examination on account of his death. No dispute was raised by defence on the issue that Surjeet Pal has expired on 14.01.01. However, a report of SHO police station, Gandhi Nagar, was called to confirm death of Surjeet Pal Dhawan and facts to this effect are recorded in ordersheet dated 24.03.01. Question for consideration comes as to evidence of Surjeet Pal Dhawan is admissible or not. High Court of Delhi was confronted with such a proposition in Krishan Dayal (ILR 1969 Delhi 1090), wherein it was concluded that for value and weight of testimony of witness, who had expired before cross­ examination could be concluded, following features are to be taken into account :­ (a) nature of testimony, (b) its probative value, (c) status of witness, (d) his relationship or connection with parties, (e) likely animus or any other feature touching his credibility, (f) whether it ­7­ was taken on record that, if cross­examined his testimony was likely to be seriously shaken, his good faith or credibility to be successfully impeached, and (g) Court may as a rule not to act upon such evidence, if uncorroborated.

8. As announced by the Hon'ble High Court in Krishan Daya (supra) testimony of a witness, who died before his cross­examination, cannot be brushed aside abruptly. His evidence can be taken into account, if it satisfies standards referred above. Consequently, it is evident that testimony of Sh. Surjeet Pal Dhawan cannot be discarded merely on the ground that he was not cross­examined by the defence. His evidence would be appreciated on standards referred above, to ascertain veracity of facts testified by him. However, in his testimony he speaks that in June, 1998 Jagat Narain showed his apprehension that his tenants may kill him. He further tells that on 16.07.98, he found Jagat Narain admitted in SDN Hospital, Delhi.

9. Sonu Kaushik, Constable, had inspected the site on 16.09.98. Smt. Kamla Devi was associated in investigation and at her instance, he inspected site, took measurements and prepared rough notes. Scaled site plan was prepared by him on 08.10.98. He proved scaled site plan as Ex.PW1/A. Ashok Kumar, Constable, took Jagat Narain ­8­ to SDN Hospital on 14.07.98 from police station, Gandhi Nagar. From there, he went to spot where Mohan Singh SI met him. He was sent to police station for registration of a case. He narrates that on that date, accused Dinesh @ Kalwa was arrested. Swarup Singh , Head Constable, was working as duty officer at police station, Gandhi Nagar, who had recorded formal FIR. He proved carbon copy of FIR as Ex.PW4/A. Atul Sood SI was brought in the witness box to prove statement of Kamla Devi and Pawan Kumar made by them in departmental proceedings initiated against Manmohan Sharma Inspector. He had proved copy of those statements as Ex.PW5/A and Ex.PW5/B respectively. Ranbir Singh, Constable, tells that Kamla Devi made a complaint to office of DCP, copy of which was proved by him as Ex.PW6/A, besides forwarding letter sent by Sh. Bihari Lal Tiwari, the then MP, which is Ex.PW6/B. Shailender Kumar, Ahlmed, had brought copy of petition moved by Jagat Narain before the Rent Controller. He had proved that copy as Ex.PW8/A, besides copy of application and its reply made by Swami Nath Sukla and order passed by the Rent Controller as Ex.PW8/B, Ex.PW8/C and Ex.PW8/D respectively. Dinesh Tiwari, Inspector, had proved copy of complaint made by Ram Shankar on 08.06.98 as Ex.PW11/A. Harinder Singh, Head Constable, had proved copy of DD No. 19B, ­9­ 21A and 35B, recorded on 19.07.98, as Ex.PW18/B, Ex.PW18/A and Ex.PW18/C respectively. Jai Prakash ASI was posted as duty officer at police station, Gandhi Nagar, on 18.07.98. On receipt of information from duty constable, he recorded DD No.7A and proved copy of it as Ex.PW19/A. Ved Prakash, Constable, joined investigation of case on 18.07.98 and remained associated in it on 19.07.98. He presents that inquest on dead body of Jagat Narain was done and thereafter, autopsy was got done. Accused Sonu, Ajay Kumar Sharma and Ramu Master were arrested in his presence, deposes the witness. V.K. Parathe, Constable, was working as duty constable in LNJP, Hospital, on 18.09.98. He informed police of police station, Gandhi Nagar, when Jagat Narain expired in the hospital and got recorded DD No.17A, copy of which has been proved by him as Ex.PW19/A. Narpat Singh, Constable, entered the witness box and testified that daily diary register dated 19.07.98, kept at police station, Gandhi Nagar, were destroyed, vide order dated 07.03.02. Khusi Ram, Head Constable, entered the witness box and testified that DD entry No. 18A dated 14.07.98, recorded at police station, Gandhi Nagar, was destroyed, vide order dated 07.03.02.

10. Mahender Singh, Inspector, entered the witness box to prove complaints made by Hari Shankar, Sampat Rai and Pardeshi. He ­10­ proved those complaints as Ex.PW10/A, Ex.PW10/B and Ex.PW10/C respectively. He further detailed that complaint made by Hari Shankar to Joint Commissioner of Police is Ex.PW10/D. Mohan Singh SI initiated investigation of the case on receipt of DD No. 25A. He reached hospital and obtained MLC of Jagat Narain. He recorded statement of Smt. Kamla Devi and got a case registered. Pawan and Rakesh were arrested on 15.07.98. Swami Nath Sukla, Sonu and Ramu Master were arrested on night intervening 17/18­07­98. When Jagat Narain expired, he conducted inquest proceedings. Accused Ram Chander was also arrested by him, when he surrendered before the Court. Inspector Manmohan Sharma took up investigation on 18.07.98. He recorded statement of Puja and Smt. Kamla Devi. Accused Ajay Kumar Sharma was arrested by him on 19.07.98. He got autopsy on dead body conducted and thereafter released it in favour of heirs of deceased. Inspector, Mahesh Kumar, took up investigation on 15.09.98. He reached spot and recorded supplementary statement of witnesses. Scaled site plan was got prepared. On 19.09.98, he arrested Rama Shankar and Dinesh. On 22.09.98, accused Ram Gopal @ Krishan Gopal was arrested. He made efforts to search for Hari Shankar, but he was not traceable. Later on, he was granted bail by the Apex Court. On 03.10.98, he ­11­ seized two lathis, when same were produced before him by Kamla Devi. He obtained subsequent opinion of the autopsy surgeon. He collected 26 documents from various departments and filed chargesheet against accused persons.

11. Dr. R.S. Srivastava prepared MLC of Jagat Narain in SDN Hospital on 14.07.98. He detailed injuries noted by him in MLC and proved it as Ex.PW13/A. Dr. Anil Kumar Mittal conducted autopsy on dead body of Jagat Narain on 19.07.98. He had proved his autopsy report as Ex.PW14/A, wherein he has opined that death of Jagat Narain was caused due to septicaemia, as a result of multiple injuries caused to both lower limbs and head. He opined that injury No.1 along with injury No.3 and 5 recorded in autopsy report Ex.PW14/A was sufficient to cause death in ordinary course of nature. He further details that subsequent opinion was sought from him, when weapons of offence were produced before him. He gave his opinion as Ex.PW14/C as well as Ex.PW20/K.

12. Witness Kamlesh Kumar Pandey projects that on night of 14.07.98, his mother came to his tenanted accommodation at Shastri Park, Delhi. He accompanied her to SDN Hospital, where his father was lying admitted in unconscious state. He came to police station, Gandhi Nagar, and narrated facts before B.S. Malik, Inspector, who ­12­ accompanied him to hospital. He unfolds that he returned to police station, Gandhi Nagar, in wee hours, where he found accused Rakesh in police station counting currency notes. Hirdaya Narain projects that when he reached his house on 14.07.98 at about 11pm, he found accused persons sitting in temple and a few of them were sitting in his plot. They uttered that either he should run away from there or they would kill him, like his brother. According to him, he remained confined in his house for whole night and on next morning, he went to SDN Hospital and found his brother lying in unconscious state. He declares that lathis Ex.P1 and P2 were produced by Smt. Kamla Devi before police. Pawan Kumar claims that on the date of incident, he reached his home in his three wheeler scooter and found accused persons assaulting his father. He presents that his father tried to come out of clutches of accused persona and in that process, he fell down. His mother was weeping at that time. He raised an alarm for help and at that juncture, accused persons ran away. He declares that his father received injuries on his head and both legs, who was removed to SDN Hospital for treatment. Smt. Kamla Devi is author of FIR and has been examined to unfold facts. According to her, accused persons reached in front of her house at about 10.30pm and started abusing her husband. They started assaulting him. Her ­13­ husband fell down. He got up and came inside house to save himself. Accused persons entered inside her house and assaulted her husband with iron rods, stones, fist and kick blows. Her husband was dragged by them outside their house. She has identified all accused persons as authors of crime. She details that she took her husband to police station from where he was sent to SDN Hospital. Her husband expired in JPN Hospital on 17.07.98. Kumari Puja was also brought in the witness box to corroborate facts testified by her mother. She tells that it were accused persons, standing in the dock, who assaulted her father. According to this girl, her father sustained injuries and was removed to police station in three wheeler scooter. She accompanied her father to hospital and from there she was taken to Shastri Park by her mother.

13. In order to afford an opportunity to explain circumstances appearing in evidence against them, accused persons were examined under section 313 of the Code of Criminal Procedure, 1973 (in short the Code). Accused Hari Shankar had denied all allegations. He pleads that property bearing No.9/214, Ghas Mandi, Kailash Nagar, Delhi, was sold by S.P. Dhawan to Padam Kumar for a sum of Rs.23,00,000/­ on 08.04.98. S.P. Dhawan had received a sum of Rs.6,00,000/­ as advance money and balance amount was to be paid ­14­ by 25.08.98. Jagat Narain had certain forged documents concerning that plot, which fact was not acceptable to S.P. Dhawan. S.P. Dhawan had nexus with Pratap, who was vagabond of the area. Pratap as well as SHO police station, Gandhi Nagar, put pressure on his tenants to vacate said land. He also put pressure on Jagat Narain so that he may carry out sale transaction entered between S.P. Dhawan and Padam Kumar. He claimed that Jagat Narain was murdered by someone else. With a view to put pressure on him as well as his tenants, Smt. Kamla Devi lodged a false report against him. He projects that Kamla Devi had named them as authors of crime with ulterior motive. According to him, Puja and Pawan Kumar were not present at the spot. He agitates that investigation has not been fair. Similar stand was taken by other accused persons in their statements recorded under section 313 of the Code. According to them, false case has been lodged and thereafter they were framed with ulterior motive. They had examined one Joginder Pal Beri and Teerath Ram in support of their defence.

14. Arguments were heard at the bar. Sh. R.K. Pandey, ld. Prosecutor, had advanced arguments on behalf of the State. Sh. K.S. Singh, Advocate, assisted by Tripta, Advocate, raised his submissions on behalf of the defence. Written statements were also ­15­ filed by respective parties. I have given my careful considerations to arguments advanced at the bar and cautiously perused the record. My findings on the issues involved in the controversy are as follows :­

15. In order to have their fingers in pie, defence agitates that site plans Ex.PW2/A and Ex.PW20/C nowhere project true situation. There are material discrepancies in facts projected in these documents. Sh. Singh argued that site plan Ex.PW2/A nowhere projects points, which are detailed in scaled site plan Ex.PW20/C. According to him, different locations are projected in these two site plans, which fact suggest that prosecution has been a failure as far as place of incident is concerned. He further argued that eyewitnesses, namely, Kamla Devi, Pawan Kumar and Kumari Puja did not support facts projected in these two plans. There is material discrepancy in their depositions with regard to position of accused persons, eyewitnesses, place of assault and place from where incident was witnessed by the aforesaid three witnesses. He claims that these site plans were fabricated to rope in accused persons. He argued that no blood was found at alleged place of occurrence nor it was shown to police by the witnesses. The witnesses are interested. They are inimical qua accused persons. Facts projected by aforesaid three witnesses are discrepant and improbable. He builds on his ­16­ arguments contending that eyewitnesses claimed that their clothes were smeared with blood, but the same were washed. Theory projected by Pawan Kumar to the effect that he removed his father in his three wheeler scooter is a commonplace story. Neither blood lying in three wheeler scooter was shown to police nor it was seized. Pawan Kumar was unable to produce his driving licence not to talk of registration certificate of said three wheeler scooter. According to Sh. Singh, this theory of transporting the victim to hospital in three wheeler scooter is fabricated one. Eyewitnesses contradicted each other with regard to position and role of accused persons. Theory of rain was introduced just to cover up the truth, since no such incident occurred as canvassed by the prosecution. Recovery of lathis on 03.10.98 is unworthy of credence. He further argued that behaviour of eyewitnesses was unnatural and improbable. Ram Dulara, from roof of whose house, lathis were retrieved, was not examined. He attacks on conduct of Kamla Devi and Pawan Kumar in taking the injured to police station. According to him, no medical aid was provided to victim at the behest of Surjeet Pal Dhawan, who wanted to cover up the real story. Eyewitnesses contradict each other on material points regarding blood spots, blood on their clothes, omission to point out that blood to police officers, visits of police ­17­ officials in the hospital as well as concerning transaction of property between Kamla Devi, S.P. Dhawan and his associate, including Pratap Chaudhary. He further argued that Puja was introduced as a witness at later stage, who contradicts her mother and brother on vital points. According to him, condition of Jagat Narain was improving in SDN Hospital and it was not explained as to why he was removed to JPN Hospital. He projects that there is discrepancy in injuries noted down in MLC as well as autopsy report. According to him, Injuries were sustained by Jagat Narain, somewhere else after his discharge from SDN Hospital. Smt. Kamla Devi has been changing her story as to the identity of persons, who assaulted her husband. She made different statements on different junctures, which fact castigates her testimony. According to Sh. Singh, it is admitted case of prosecution that two shots were fired by Pratap Chaudhary, which fact probabilize that it was someone else, who gave beating to Jagat Narain. He presents that it was Pratap Chaudhary and his stooges, who were responsible for the crime. He further argued that Dr. Srivastava opined that Jagat Narain was in position to speak. According to him, that fact makes it clear that statement of Jagat Narain was not obtained in order to cover falsehood. Doctor, who last treated Jagat Narain, was not brought in the witness box. It has not been explained ­18­ as to why Jagat Narain was discharged from hospital, when his condition was improving. Persons residing in near vicinity of Shiv Juice shop were not brought in witness box, which fact is sufficient to raise a presumption against the prosecution. He argued that investigation was tainted. Mohan Singh SI admits that he changed case diaries of the case at the instance of Manmohan Sharma Inspector. Departmental action was initiated against Manmohan Sharma, Inspector, for tampering with case diaries. Since investigation was not fair, it caused prejudice to accused persons. According to him, FIR was ante timed and ante dated. He claims that prosecution has miserably failed to prove its case against accused persons. Contra to it, ld. Prosecutor argued that offence has been brought home to the hilt.

16. The Court, while evaluating the facts of a case, is supposed to form its opinion about the credibility of the witnesses examined in the case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion on credibility of the witness(es). For the purpose of assessing the credibility, the Court has to consider evidence of a witness to find out as to how he has fared in the cross examination and what impression is created by his evidence, taken in context of other facts of the case. Law recognizes ­19­ following ways in which evidence of a witness can be termed unreliable; (a) the witness' statement is inherently improbable or contrary to the course of nature, (b) his deposition contains mutually contradictory or inconsistent passage, (c ) he is found to be bitter enemy of the opposite party, (d) he is found not to be a man of veracity, (e) he is found to have been bribed or accepted any other corrupt inducement to give evidence, and (f) his demeanour, while under examination, is found abnormal and unsatisfactory.

17. To ascertain reliability of testimony of Pawan Kumar, it would be assessed on standards detailed above. Pawan Kumar claims that on 14.07.98 at about 10.30­10.45pm, he returned home from his shop. He found a crowd collected outside his house. He stopped his three wheeler scooter and saw Hari Shankar and his sons, namely, Rakesh and Dinesh caught hold of his father. Accused Sonu, Swami Nath Sukla, Ram Gopal, Ram Shankar and Ramu Master were also standing there. Accused, Sonu and Ram Gopal were having lathis in their hands. His father was attempting to get himself released from clutches of accused persons and in that process, he fell down. All the aforesaid accused persons started beating his father. He raised an alarm for help. His mother was standing there, who was weeping and crying for help. When, they raised an alarm for help, accused ­20­ persons left his father and ran away. His father had received injuries on his head and both legs. He was removed to SDN Hospital for treatment. He explains that this dispute arose, since accused persons wanted to grab property No. 214, Ghas Mandi, Gandhi Nagar, Delhi. When testimony of Pawan Kumar was closely perused, it came to light that facts testified by him suffers from inherent infirmities. He took somersault and testified that he had not seen accused persons beating his father inside their (witness) plot. He had also not seen accused persons beating his father inside their house. He had seen them beating his father near Juice shop. He hastens to add that he had narrated before police that accused persons had dragged his father upto Juice Shop with intent to kill him. He projects that he had reached his house by his three wheeler scooter, which was bearing registration No. DLR 4320. During the course of cross­ examination, he presents that his driving licence was lost and he got issued a fresh one. He declared that he does not recollect number of driving licence, which was lost. He admits that in those days, he was having a tyre repairing shop at Shastri Park, Delhi. He further admits that he was having a flat on rent at Shastri Park. He used to open his tyre repair shop at about 5­6am and used to close at about 11­12 in night. Therefore, out of these facts it is emerging over record that this ­21­ witness was living in a tenanted flat at Shastri Park, Delhi, where he was running a tyre repair shop. He used to remain busy on his tyre repair shop throughout day and used to close it at about 11­12 in night. In such a situation, there was no time or opportunity with this witness to ply three wheeler scooter or to reach his father's house at about 10.30­10.45pm. Discrepancies to the effect that at one point of time, witness deposed that he saw accused persons assaulting his father, when he reached his house, while at the other moment, he deposed that he had not seen accused persons assaulting his father inside his house or inside their plot and had seen them beating his father in front of Shiv Juice Shop, make it clear that he is changing his statement with a view to narrate convenient facts. He wants to assert that he reached near his house, where he found a crowd collected. In the subsequent breath, he testified that he saw accused persons assaulting his father near Shiv Juice Shop. When site plan Ex.PW1/A is perused, it comes to light of the day that Shiv Juice Shop is across the road and not near the house of Jagat Narain Pandey. Not only this, he tells that he narrated before police that accused persons had dragged his father upto Shiv Juice Shop with an intention to kill him, where he was beaten with lathis, iron rods and stones. He concludes that he had seen the incident happening in front of Shiv Juice Shop ­22­ only. He tried to clinch the issue, when he testified that he had not seen any incident happening in front of his jhuggi. These facts castigates his testimony, when he deposed that he saw accused persons dragging his father upto to Shiv Juice Shop with intent to kill and thereafter he was assaulted with lathis, iron rods, stones etc. Had Pawan Kumar seen his father being dragged by the accused persons, it would have been his natural reaction to rush towards his father in a bid to save him. Pawan Kumar nowhere explains that he tried to save his father from clutches of accused persons. Had there been a grain of truth in his testimony, then it would have been the situation that when his father was being dragged upto to Shiv Juice Shop, then this witness would not have remained a mute spectator and wait till his father was assaulted with lathis, iron rods and stones. His observation that he had seen the incident, which occurred in front of Shiv Juice Shop only, makes it clear that this witness had not seen any incident, which occurred in front of his jhuggi or inside his jhuggi. He nowhere explains that on way his to police station or hospital, his mother told him that his father was assaulted by the accused persons in front of their jhuggi, inside their jhuggi and dragged him to Shiv Juice Shop and ultimately he was beaten there also. It has not been projected by this witness that on his return from hospital, he saw ­23­ blood lying inside and outside their jhuggi. In such a situation, his claim to the effect that blood was lying inside and outside their jhugg,i became dry and dried blood was shown to police is nothing but a litany of lies.

18. A claim has been made by Pawan Kumar that he removed his father to police station as well as SDN Hospital in scooter No. DLR 4320, which was owned by his father. This claim does not stand on standards of ordinary human behaviour and natural course of events. When facts were assessed on standards of ordinary human behaviour, it came to light that Pawan Kumar had fabricated facts with some ulterior motives. Situation became clear, when Pawan Kumar tried to testify that he parked his aforesaid scooter in SDN Hospital on night of 14.07.98 and in the morning hours, he drove away his scooter from there. He tells us that his scooter remained in the hospital till 07­7.30am. Smt. Kamla Devi, mother of this witness, deposed that at about 2am on night intervening 14/15­07­98, she reached DDA flats, Shastri Park, to meet her son Kamlesh Kumar Pandey. Kamlesh Kumar Pandey also confirms those facts. Therefore, it is projected over record that at about 2am on 14.07.98, Smt. Kamlesh Devi reached house of Kamlesh Kumar Pandey. Kamlesh Kumar Pandey tells us that they hired a three wheeler ­24­ scooter and came to SDN Hospital and from there they had gone to police station, Gandhi Nagar, Delhi. One cannot understand as to why Pawan Kumar had not driven his mother to their house at Shastri Park, Delhi, in the said three wheeler scooter, where she had gone to meet Kamlesh Kumar Pandey. Had scooter of Pawan Kumar been parked inside the hospital, Smt. Kamla Devi would have used it for her transportation to Shastri Park, where she had gone to meet Kamlesh Kumar Pandey. She had been moving from hospital to Shastri Park, then to hospital again, from there to police station Gandhi Nagar and again to SDN Hospital that night on a hired three wheeler scooter. When their own scooter was parked inside SDN Hospital throughout that night, why a hired scooter was used by Smt. Kamla Devi has not been explained by Pawan Kumar. Pawan Kumar tells us that on 15.07.98, he parked his scooter on his tyre shop, where his scooter remained throughout the whole day. He projects that on 15.07.98, he was taken by police to Shiv Juice Shop, Kailash Nagar, Gandhi Nagar, Delhi. He nowhere explains as to why he had not shown his three wheeler scooter at police station that day or why he had not gone to his house on that scooter that day. His theory of reaching his house on night of 14.07.98 on his his three wheeler scooter comes under clouds.

­25­

19. In a bid to make his testimony more probable, Pawan Kumar testified that when he raised hue and cry, accused persons ran away in different directions. While running away, a few of accused persons took away their weapons of offence, while other had thrown away their weapons of offence. It is not the case of Pawan Kumar that those weapons of offence were thrown away by accused persons on roof of jhuggis or at a place from where Pawan Kumar was not in a position to lift it. It makes the position more clear. Pawan Kumar explains that he had not lifted those dandas and lathis from the place, where accused persons had thrown it, while running away from the spot. Out of these events, Pawan Kumar wants to project that while leaving place of occurrence, a few of accused persons threw away their dandas and lahis at the spot and fled away. Those dandas and lathis remained lying there and he had not lifted it from there. This part of his story has not been substantiated either by Mohan Singh SI, Manmohan Sharma Inspector or Smt. Kamla Devi, the author of FIR. Pawan Kumar claims that his clothes were stained with blood, which were washed by him by that time. He was brought by police at Shiv Juice Shop on 15.07.98. He laid emphasis on fact that on 15.07.98, he was taken to Shiv Juice Shop, Kailash Nagar, Gandhi Nagar, Delhi, by police. He had shown Shiv Juice Shop to police in evening ­26­ hours of 15.07.98. As detailed by this witness, he remained in hospital upto 7.30am on 15.07.98, came to his tyre repairing shop at Shastri Nagar, Delhi, and was taken by police to Shiv Juice Shop in evening hours of 15.07.98. By that time he was in hurry to wash his blood stained clothe, which could have offered evidence to the fact that this witness had removed his father to SDN Hospital in a three wheeler scooter. Why he was in so hurry to wash blood stained clothes has not been explained by him. When no explanation is forthcoming from his mouth on that count, this fact is suggestive of circumstances that Pawan Kumar had not taken his father either to police station, Gandhi Nagar, or SDN Hospital in his three wheeler scooter.

20. Mohan Singh SI handled investigation of the case from 14.07.98 to 18.07.98. He projects that site plan Ex.PW22/C was prepared by him at the instance of Smt. Kamla Devi. He declares that according to the site plan Ex.PW22/C, the incident occurred in front o jhuggi No. 214, Ghas Mandi, Kailash Nagar, Gandhi Nagar, Delhi. Had Pawan Kumar shown Shiv Juice Shop to Mohan Singh SI on 15.07.98 and narrated before him that accused persons had assaulted his father in front of Shiv Juice Shop, then site plan Ex.PW22/C would have reflected Shiv Juice Shop also and Mohan Singh SI would have ­27­ shown therein that Jagat Narain Pandey was also assaulted by the accused persons in front of Shiv Juice Shop. Absence of that fact in Ex.PW22/C belies the facts stated by Pawan Kumar to the effect that Shiv Juice Shop was shown by him to Mohan Singh SI on 15.07.98.

21. Manmohan Sharma, Inspector, took up investigation on 18.07.98. There were allegations against him to the effect that he tampered with case diaries No. 3 and 3A dated 18.07.98 and he was proceeded departmentally. Pawan Kumar appeared as a witness in those departmental proceedings, wherein he made a statement on 21.12.98 detailing therein that he had only identified dead body of his father, Jagat Narain in mortuary, LNJP Hospital and was not witness to the occurrence. Inspector Manmohan Sharma admits these facts in his cross­examination. However, he hastens to add that said testimony of Pawan Kumar was an afterthought. He admits that during the cross­examination of Pawan Kumar in these proceedings it was not suggested to the witness that his statement to the effect that he was a witness to identification of dead body of his father only was an afterthought. Therefore, it is emerging over record that Pawan Kumar had made a statement before the inquiry officer, when a departmental proceeding was going against Manmohan Sharma, Inspector, in which statement he claimed that he was not a witness to the ­28­ occurrence. Consequently, it is evident that inconsistent facts were testified by Pawan Kumar at different stages and he had improved himself from his statement made over to inquiry officer in departmental proceedings against Manmohan Sharma Inspector with ulterior motives. Inconsistency and incongruities in facts testified by this witness are so glaring, which shake credit of his testimony. Inherent infirmities in his testimony make me to comment that Pawan Kumar is not worthy of credence, who was procured later on as an eyewitness. His testimony is not at all reliable. Same is, therefore, discarded from consideration of guilt of the accused persons.

22. Kamlesh Kumar Pandey tells us that on 14.07.98 at about 2am, his mother reached his tenanted accommodation, that is, DDA Flats, Shastri Park, Delhi. Her clothes were stained with blood. She embraced him and started weeping. He accompanied her to SDN Hospital, where he found his father lying in unconscious state. He tried to talk to his father, but he was unable to speak. He accompanied his mother to police station, Gandhi Nagar, Delhi, where he approached B.S. Malik, Addl. SHO. Sh. Malik accompanied him to the hospital. From there, they again went to police station, Gandhi Nagar, Delhi, where they found Rakesh Kumar present in reporting room and counting currency notes. The defence argued ­29­ that Kamlesh Kumar Pandey had fabricated facts to this effect that he saw Rakesh Kumar present in the police station and counting currency notes there. When facts projected by this witness were closely perused, it came to light that a claim has been made by this witness that when Sh. B.S. Malik, Addl. SHO, left the hospital, he along with his mother went to police station. He could not meet Sh. Malik in the police station. He remained there for five or seven minutes and thereafter again went back to hospital. No explanation was offered by Kamlesh Kumar Pandey as to why he went to police station, Gandhi Nagar, again and what persuaded him to leave for hospital within five or seven minutes. During the course of his cross­ examination, he presents that when he saw accused Rakesh in the reporting room, none was present there at that time. He projects that when police met him on 17.07.98, he had not narrated those facts before them. When facts detailed by this witness were assessed on acid test of ordinary human behaviour, it came to light that Sh. Kamlesh Kumar Pandey had fabricated facts on the issue that he saw accused Rakesh Kumar standing in reporting room and counting currency notes. He nowhere explains as to where duty officer had gone from reporting room, when Rakesh Kumar was present there. Why he had not detailed those facts before police on first available ­30­ opportunity, is the proposition, which has not been explained by him. It seems that with ulterior motives, these facts were fabricated by Kamlesh Kumar Pandey. Whether that fact would castigate testimony of Kamlesh Kumar Pandey, is the proposition with which this Court is confronted with. It is matter of common knowledge that many a times a witness provides embroidery to facts with a propose that he may not be disbelieved. The Apex Court in Anil Singh (AIR 1988 S.C. 1998) concluded that public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all the witnesses to the occurrence have not been examined. Nor it is proper to reject for want of corroboration by independent witness if the case made out otherwise is true and acceptable. With regard to the falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Apex Court sought reliance from Bankim Chander (AIR 1919 PC 157) wherein the Privy Council had ruled that in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency ­31­ amongst litigants to back up a good case by false or exaggerated evidence. It was announced by the Apex Court that it is also our experience that invariably the witnesses add embroidery to prosecution evidence, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. Thus, it is emerging over record that embroidery was provided by Kamlesh Kumar Pandey to facts by asserting that he had seen Rakesh Kumar in reporting room and counting currency notes only with a view to support his case. In case, those facts are discarded, then remaining events unfolded by Kamlesh Kumar Pandey can well be accepted. These facts are segregable and when these facts are discarded, remaining events unfolded by Kamlesh Kumar Pandey are found to be untainted. Defence could not throw slush on those facts, which are testified by Kamlesh Kumar Pandey to the effect that he went to SDN Hospital along with his mother and from there he came to police station, Gandhi Nagar, and made B.S. Malik, Addl. SHO to accompany them to SDN Hospital. These facts ­32­ can well be appreciated, while adjudicating accountability of the accused persons.

23. Now I turn to testimony of Smt. Kamla Devi, author of FIR. She is star witness of the prosecution, in whose presence offence is alleged to have been committed. In her report Ex.PW2/A, she details sequence of events in which the incident took place. Therein, she pleads that on night intervening 14/15­07­98 at about 10.30pm, she was cooking food, while her husband was lying on a cot outside her room. All of a sudden, Hari Shankar, his sons Dinesh @ Kalwa and Rakesh, Sonu, Swami Nath Sukla, Ram Gopal @ Krishan Gopal, Ram Shankar @ Bhoora, Ram Chander Ghasiyara and Ramu Master came there and started abusing her and her husband in filthiest language. They questioned her husband as to why he was calling vagabonds there and declared that that day they will eliminate him. When she heard their declaration, she came out of kitchen and reached near her husband. She found Swami Nath Sukla, Ram Gopal and Sonu armed with clubs. Hari Shankar and his sons, namely, Dinesh @ Kalwa and Rakesh abused her husband and exhorted their associates to assault him. Her husband was overpowered by Dinesh @ Kalwa and Rakesh. Her husband rescued himself and came inside the house. She also followed him.

­33­ Aforesaid persons came inside her house and assaulted her husband with lathis, clubs and stones. Dinesh @ Kalwa and Rakesh overpowered her husband, while Swami Nath Sukla, Ram Gopal and Sonu started assaulting him with lathis and clubs and remaining offenders wielded stones, fist and kick blows to him. Her son Pawan Kumar reached there and she along with her son raised an alarm for help. At that time offenders left him and ran away. In her report Ex.PW2/A, she does not name Ajay Kumar Sharma as one of the offenders. In her supplementary statement dated 18.07.98, she names Ajay Kumar Sharma as the offender, for the first time. Smt. Kamla Devi was examined by the inquiry officer in departmental proceedings conduced against Manmohan Sharma, Inspector, on 15.10.98. That statement is Ex.PW5/A, in which she attributed accountability on Hari Shankar, Rakesh, Dinesh, Ajay Kumar Sharma, Rama Shankar, Ram Chander, Swami Nath Sukla, Ramu Master, Krishan Gopal and Sonu Panwala. She also presents therein that aforesaid offenders spread rumours that vagabond with name of Pratap Chaudhary was coming there and got shops closed. Two shots were fired in air. She brought her husband inside the house. At that juncture, four of offenders committed trespass in her house and assaulted her husband. When her husband tried to come out of ­34­ house, at that juncture aforesaid offenders assaulted him with lathis and iron rods etc. They dragged her husband to the road and assaulted him there.

24. During the course of investigation, she approached Lal Bihari Tiwari, then MP, and gave an application in writing to him. Sh. Tiwari forwarded her application to Commissioner of Police, which is Ex.PW6/A. In the said application, she unfolds that besides aforesaid ten accused persons, it were Chantu, Lalsa and Bhim also, who had reached there and assaulted her husband. Not only this, she had tried to add some more offenders to the incident, when her statement was recorded by Sh. H.K. Yadav, Special Executive Magistrate, in preventive proceedings initiated against Hari Shankar and others under provisions of section 107 and 150 of the code. Her statement was recorded by Sh. Yadav on 08.06.99, which is Ex.PW16/DWGH. In that statement, she presents that Chander Bhan Yadav, Sonu, Uma Shankar, Ram Prasad, Dinesh, Muni Raj, Bhim Prasad and Ram Dulare etc were responsible for death of her husband. Therefore, out of facts testified by Smt. Kamla Devi, it comes to light that on different junctures, she had named different persons as authors of crime. Question for consideration comes as to whether facts testified by Smt. Kamla Devi are reliable. Defence agitates that ­35­ there was enmity between Jagat Narain on one hand and Hari Shankar and his associates on the other. At the cost of repetition, it is said that complaint Ex.PW10/A and Ex.PW10/B were also made by Hari Shankar against Surjeet Pal Dhawan and others. Complaint Ex.PW10/C was made by Pardeshi and others against some unknown persons, who came there on 08.06.98. In that complaint, it has been projected that Jagat Narain had instigated bad elements to criminally intimidate them. In complaint Ex.PW10/D, Hari Shankar Gupta levels allegations against some bad elements, saying that they want to evict him and his tenants out of premises No. 214, Ghas Mandi, Kailash Nagar, Delhi. Hari Shankar Gupta also makes a reference that those bad elements were instigated by Jagat Narain and Hirdaya Narain. Therefore, it is emerging over record that Hari Shankar and others claim that Jagat Narain had instigated some bad elements, who reached spot on 08.06.98 and took law into their own hands. Those bad elements created a scene of terror and criminally intimidated tenants of Hari Shankar Gupta to vacate their jhuggis. According to defence, it was Jagat Narain, who was behind the scene. Smt. Kamla Devi happens to be wife of Jagat Narain and it has been urged that on account of ill feelings between Jagat Narain on one hand and Hari Shankar Gupta on the other hand, she had ­36­ roped in aforesaid persons in the case.

25. Admittedly, Kamla Devi had changed her stand at different junctures regarding involvement of persons responsible for death of her husband. It is not the case of defence that Kamla Devi was not present at her house on 14.07.98. As projected by Kamla Devi, her husband was assaulted, who sustained serious injuries in the incident. She removed her husband to police station, Gandhi Nagar, from where he was transmitted to SDN Hospital for treatment. Jagat Narain remained admitted in SDN Hospital till 17.07.98, on which date he was taken to JPN Hospital and got admitted there. In JPN Hospital, he breathed his last. Therefore, facts unfolded by Smt. Kamla Devi to the effect that her husband sustained injuries in the incident, was taken to police station, Gandhi Nagar, from there he was removed to SDN Hospital and got admitted there, nowhere falls within arena of doubt. Constable, Ashok Kumar and Mohan Singh SI substantiated facts to the effect that Jagat Narain was brought to police station by Kamla Devi and from there he was taken to SDN Hospital for his treatment. MLC prepared by Dr. R.S. Srivastava gives confirmation to facts that on night intervening 14/15­07­98, Jagat Narain was brought in hospital, where he was got admitted and he prepared his MLC Ex.PW13/A. Therefore, it is crystal clear that ­37­ circumstances unfolded by Smt. Kamla Devi concerning assault on her husband, receipt of injuries by him in that incident, his removal to Gandhi Nagar and thereafter transmission to SDN Hospital for treatment have been established by the cogent and independent evidence. Her testimony on these counts is consistent with truth and veracity.

26. However, Kamla Devi raised her accusing finger on 9 persons in her report Ex.PW2/A. In her supplementary statement, recorded on 18.07.98, which is Ex.PW16/DA. She implicates Ajay Kumar Sharma also as the author of crime. She approached Sh. Lal Bihari Tiwari, gave him complaint Ex.PW6/A, which was transmitted by him to the authorities, vide his forwarding letter Ex.PW6/B. In that complaint Chantu, Lalsa and Bhim were added by her as authors of crime, besides the persons mentioned by her in he report Ex.PW2/A and supplementary statement Ex.PW16/DA. She was examined by the inquiry officer in departmental proceedings conducted against Manmohan Singh Sharma, Inspector, on 15.10.98, which has been proved as Ex.PW5/A. In that statement, she omits names of Chantu, Lalsa and Bhim and attributed accountability to Hari Shankar, Rakesh, Dinesh, Ajay Kumar Sharma, Ram Shankar, Ram Chander, Swami Nath Sukla, Ramu Master, Krishan pal and Sonu Panwala.

­38­ Another twist was given her, when she was examined by Special Executive Magistrate on 08.06.99. In her statement Ex.PW16/DWGH, she names some other persons as offenders, namely, Chander Bhan Yadav, Sonu brother of Kamlesh, Uma Shankar, Ram Prasad, Dinesh, Munni Raj, Bhim Prasad and Ram Dulare as the persons responsible for death of her husband. Dinesh Kumar, who was one of the respondents in those preventive proceedings was a different person than Dinesh, who is facing trial in the case. Consequently, it is evident that this lady had made different statements on different junctures regarding identity of persons, who were responsible for the crime. Her testimony as to the identity of offenders, who authored crime, is farther from truth. Question for consideration comes as to whether testimony of Smt. Kamla Devi should be discarded altogether, when element of falsehood emerges over the record. When element of falsehood creeps in testimony of Smt. Kamla Devi, a duty is cast on the judge to segregate falsehood from truth. It is solemn duty of a judge to separate chaff from grain in order to dispense justice. He is not supposed to stop there and to announce verdict in favour of offenders as and when element of falsehood creaps in testimony of a witness. His duty, to administer justice, would take him ahead to ascertain as to where truth lies.

­39­ Here in the case, when this exercise is adverted, it comes over record that facts testified by Smt. Kamla Devi are partly reliable and partly unreliable. She is not the witness, who can be termed as wholly unreliable. On certain events, she had divulged truth, which gets substantiated from independent evidence too. In such a situation, her testimony is to be segregated from falsehood and truth is to be accepted. Certainly in that eventuality, her testimony can only be relied on those portions, which are found to be true, if same are corroborated by independent piece of evidence, direct or circumstantial. In view of these observations, contentions advanced by defence that testimony of Smt. Kamla Devi may be discarded altogether cannot be accepted.

27. Hirdaya Narain tells us that Jagat Narain was his younger brother. He narrates that about 6­7 years back, he had sold a plot measuring 123 sq. yards to Dharam Properties, possession of which plot was with tenants. There are jhuggis constructed over the said plot. His father sold same piece of land measuring 100 sq. yards to accused Hari Shankar about 25­26 years ago. Hari Shankar had constructed his own house on the said plot. About two or three years ago, Hari Shankar asked Swami Nath Sukla and others to pay rent to him. Swami Nath Sukla was tenant of his brother. He asked Ramu Master ­40­ also to pay rent to him. He further unfolds that about one and half or two years ago, he returned home about 10.45 or 11pm. He found all accused persons present before the Court sitting in a temple which is adjacent to their plot. According to him, a few of the accused persons were sitting in the temple and a few were sitting on their plot. Accused Hari Shankar, Rakesh, Dinesh and Ajay Kumar Sharma were having lathis in their hands. When he was going upstairs to his house, Hari Shankar, Dinesh, Ajay Kumar Sharma and others exhorted that he should be caught. He immediately rushed upstairs and reached his house. Accused Dinesh and Ram Gopal chased him and reached upstairs. They uttered "you swine should run away, otherwise you would be killed like your brother." Both accused entered his house and had thrown his utensils down in the lane. Thereafter, they went downstairs. While going down, they uttered that he should vacate the house by 12­1am, otherwise, he would be killed in the morning. In the morning, he went to SDN Hospital and found his brother admitted there.

28. When facts testified by this witness were closely perused, it came to light that incident narrated by him are not in consonance with ordinary human behaviour and suffers from inherent infirmities. Hirdaya Narain admits during course of his cross­examination that his ­41­ two daughters­in­law were present inside house, when he reached there. It is not his case that his daughters­in­law informed him about the incident. He projects that when he reached his house, accused persons were sitting inside the plot as well as in the temple and were waiting for him. As detailed above, incident of assault on Jagat Narain took place around 10.30am. Hirdaya Narain claims to have reached his house around 11pm. Smt. Kamla Devi had highlighted that when an alarm was raised, accused persons ran away from there. Facts unfolded by Hirdaya Narain are in contradiction to circumstances detailed by Smt. Kamla Devi. Even otherwise, offenders would not have waited for someone else at the spot with weapon of offence, after accomplishing of his task. He also projects that offenders, namely, Dinesh and Ram Gopal made declaratory statements that they had killed his brother and in case he would not run away from there, he would also be killed. This statement have tendency of bringing extra judicial confession, alleged to have been made by accused Dinesh and Ram Gopal, over the record. Facts testified by Hirdaya Narain on that issue are vague and ambiguous. He does not make it clear as to what facts were spoken by Dinesh and Ram Gopal separately and what were the words, used by each of them. Hirdaya Narain speaks of extra judicial confession of Dinesh ­42­ and Ram Gopal having simultaneously made and when reproduced in his words it makes no sense. Question that agitates is as to before whom, when and in what words each accused made confession and whether each accused used the same hand. Evidence of Hirdaya Narain does not reproduce words used by each accused persons. In such a situation, his evidence as to the extra judicial confession made by Dinesh and Ram Gopal is not found to be worthy of credence. The Apex Court in Rahim Beg (AIR 1973 SC 343) and Heramba Brahma (AIR 1982 SC 1595) laid down that for accepting extra judicial confession there must be reproduction of exact words and there must be evidence to show reason or motive or making of confession as to how and why accused persons had reposed confidence in the person selected, before whom confessional statement is said to have been made. It is settled proposition of law that an order of conviction can be based on extra judicial confession, even when evidence of witness in this regard is found to be true, trustworthy and above reproach. Reference can be made to M.K. Antony (AIR 1985 SC 48).

29. As detailed by Hirdaya Narain, accused persons were sitting in temple as well as in plot, duly armed with lathis. He nowhere projects that accused persons were preparing for their further course of action, ­43­ after assaulting on his brother Jagat Narain. As detailed by him, accused persons were waiting for him. When he was going to upstairs, accused Hari Shankar, Dinesh, Ajay Kumar Sharma and others exhorted that he should be caught. This testimony of Hirdaya Naraain brings it over record that accused persons were not waiting for him, otherwise they would not have allowed him to go upstairs. As smack out of facts testified by this witness, when they saw him, they sprang up, took decision and exhorted that Hirdaya Narain should be caught. However, these facts stand demolished, when Hirdaya Narain projects further and declares that he was followed by Dinesh and Ram Gopal, who reached inside his room. Both of them had thrown his utensils down in the side lane. He nowhere claims that they made efforts to overpower and bring him downstairs. Consequently, testimony of Hirdaya Narain is containing inconsistent facts, which does not stand altogether. Further more, Hirdaya Narain admits that neither he went to police station to lodge report in morning hours nor he narrated these facts before police, when his statement was recorded in the case. Therefore, these facts nowhere satisfies standards of behavioural probabilities. Consequently, it is emerging over record that these facts are farther from truth. However, Hirdaya Narain speaks that in morning, he went to SDN Hospital and found ­44­ his brother admitted there with serious injuries on his body. His brother was unconscious. On the third day of incident, his brother expired in the hospital. These facts are neither questioned nor disputed by the defence. Even otherwise, facts testified by Smt. Kamla Devi, Manmohan Sharma, Inspector and Dr. R.S. Srivastava substantiated these events. It is evident that testimony of Sh. Hirdaya Narain is partly reliable and partly unreliable. His evidence, which is reliable can be read, if it is corroborated by other piece of evidence.

30. Defence attacks the case, pleading that investigation conducted by Manmohan Sharma Inspector was unfair. It has been argued by Sh. Singh that Mohan Singh SI admits that he destroyed case diaries No.3 and 3A at the instance of Inspector Manmohan Sharma and later on made complaint to DCP in that regard. Sh. Singh argued that a departmental inquiry was initiated, which fact is not disputed by Inspector Manmohan Sharma also. According him, it came to light that facts were fabricated by Inspector Manmohan Sharma and with that intention, he got destroyed DD No.3 and 3A recorded on 18.07.98. He presents that when factum of unfairness of investigation has surfaced over record, in such a situation, entire case is to be disbelieved. It is not disputed by or on behalf of the defence that Manmohan Sharma, Inspector, was proceeded departmentally ­45­ when a complaint was made against him by Mohan Singh SI alleging that he got case diaries No. 3 and 3A replaced. Case diaries No.3 purports to have been recorded by Mohan Singh SI on 18.07.98. Opening words of said case diary tells us that investigating officer got an information from SDN Hospital that Jagat Narain has met his death there, hence offence punishable under section 302 of the Penal Code was added to the case. Investigating officer left in search of the accused persons, who were absconding along with Ved Prakash, Constable. He reached house of deceased and Pawan Kumar was associated in investigation. It has been detailed therein that accused Swami Nath Sukla, Sonu and Ramu Master were arrested at the instance of Pawan Kumar. Accused persons were interrogated and contents of their interrogation was recorded in the said case diaries. Accused Ram Chander was formally arrested, when he surrendered himself before the Magistrate. He was also interrogated and produced before the Court. Case diary No. 3A purports to have been recorded by Inspector Manmohan Sharma on that very day. Inspector, Manmohan Sharma reached spot and interrogated Kumari Puja and recorded her statement under section 161 of the Code. He went in search of remaining accused persons. Supplementary statement of Smt. Kamla Devi was recorded, wherein she had named ­46­ Ajay Kumar Sharma as one of the offender. From contents of the aforesaid case diaries, it is evident that four accused persons were arrested and statement of Kumari Puja was recorded, besides supplementary statement of Smt. Kamla Devi, wherein she names Ajay Kumar Sharma as author of crime. As far as testimony of Kumari Puja is concerned, it would be assessed in subsequent sections to ascertain veracity of her testimony.

31. Investigation of this case appears to be not free from taint. Investigating officer had destroyed previously recorded case diaries and substituted it with another case diaries, wherein it was shown that supplementary statement of Smt. Kamla Devi was recorded and statement of Kumar Puja was recorded under section 161 of the Code. It has also been mentioned that accused persons were arrested at the instance of Pawan Kumar. Had Puja been shown as a witness in original case diaries, there was not necessity on the part of investigating officer to substitute those case diaries with the present one. Investigating officer introduced a theory that Puja had witnessed the incident and fabricated false facts with a view to strengthen testimony of Smt. Kamla Devi. Consequently, it is evident that investigating officer conceived an idea that Puja may be implanted as a witness and accused Ajay Kumar Sharma may be roped in and with ­47­ that idea, he recorded supplementary statement of Smt. Kamla Devi and statement of Kumari Puja by replacing original case diaries. Case diaries were manipulated with a view to implant Pawan Kumar as a witness. Tainted investigation made the task of this Court, to sift evidence, difficult. When case was perused closely, pedding and fabrication of evidence on the part of investigating officer surfaced over record, which fact persuades an ordinary prudent man to conclude that Puja was procured as a witness and Ajay Kumar Sharma was roped in. These facts false heavily on the case of prosecution.

32. Question for consideration comes as to why Kamla Devi narrated that her statement was not recorded by police. When chronological events are perused, it stands highlighted that with ulterior motives, Kamla Devi had changed her stand time and again. With an idea to cover up lapses on her part, Kamla Devi gave evidence that her statement was not recorded. Consequently, it is evident that such testimony of Kamla Devi is farther from truth, which was made by her only with ulterior motive. In fact, her statement was recorded in the hospital, which became bedrock of the case.

33. Puja was brought in the witness box to prove facts. She testified that on 14.07.98 at about 10.30am, she was sitting on a caught with ­48­ her father. Cot was lying in front of room of their house. Her mother was cooking in kitchen. Accused Hari Shankar, Rakesh, Dinesh, Ajay Kumar Sharma and Ram Chander came from the side of their room and started abusing her mother and father. Swami Nath Sukla and Bhura etc also came there. Rakesh and Dinesh Kumar caught hold of her father, while Hari Shankar exhorted, "swine be beaten". Her father got himself released and went inside the house. Accused persons entered their house and had beaten her father with iron rods, lathis and stones etc. Thereafter, they dragged her father upto to Shiv Juice Shop and gave beatings to him. Her mother was weeping bitterly. She was standing at the corner of her house, when her father had sustained injuries on his body. When facts testified by this child witness were closely perused, it came to light that she had improved herself on material particulars from previous statement made over to police. She improved on the point that her brother Pawan Kumar reached at spot along with his scooter, she was left by her mother at Shastri Park, offenders were armed with iron rods, lathis and stones, her mother removed her father to hospital in scooter of her brother, accused persons had dragged her father upto to the road and her father had ran towards road and Hari Shankar uttered, "swine be beaten". These improvements suggest that with ulterior motives, ­49­ witness had improved herself from her previous statement made over to police. Not only this that Puja had improved herself on the point, she had testified certain facts which castigates veracity of her testimony. She projects that while running away, one of the accused left his danda at the spot, which was lifted by her mother. In subsequent breath, she testified that said danda was not lifted by her mother, soon after the incident, but it was lifted subsequently. When attempts were made to purify her testimony, she projects that said danda was not recovered either on the date of incident or subsequently in her presence. When that danda was lifted by her mother, she was not present there. These facts highlight that Puja was not present at the spot, when that danda was alleged to have been lifted by her mother. It is evident that she was tutored on that count. There is another circumstance on the issue. As projected by prosecution, two lathis were recovered from roof of house of Ram Dulare, which were handed over to police by Smt. Kamla Devi on 03.10.98. It seems that the girl was tutored to speak that lathis were handed over by her mother to police and to articulate those facts, she projects that danda was left at the spot by the accused persons, which were lifted by her mother. It is not the case of prosecution that a club was left at the spot, when accused persons ran away from ­50­ there.

34. Puja tells that her mother had left her at her brother's house at Shastri Park, Delhi. She does not tell as to at what time she reached Shastri Park. She clarified that when she reached Shastri Park, her clothes were stained with blood. According to her, she had not shown those clothes to her sister­in­law. Why she narrates those facts, is a proposition, which stands replied by this witness in subsequent sequence of her testimony. She tells that till she remained at Shastri Park, her sister­in­law had not given any telephone call to police to inform them that she was eyewitness and her blood stained clothes were kept there. With a view to cover up that situation, the girl projects that she had not shown her blood stained clothes to her sister­in­law. Surprisingly, the child witness wants to tell that she concealed her blood stained clothes, when she reached at the house of her sister­in­law, wearing those very clothes. These facts are sufficient to conclude that Puja is trying to become more smarter on account of being tutored by her mother. Puja claims that she reached house of her brother along with her mother. However, Kamlesh Kumar Pandey does not speak that Puja was along with her mother, when she reached at her house at 2am on 14.07.98. Though he speaks that clothes of her mother were stained with blood, who ­51­ embraced her and started weeping, yet he does not make any reference to this witness. In his entire testimony, Kamlesh Kumar Pandey does not speak that Puja came at his house, stayed there till 18.07.98 and on that date, she was brought to Ghas Mandi, Kailash Nagar, Gandhi Nagar, Delhi, where her statement was recorded by police. There is other facet of coin. Mohan Singh SI unfolds that case diaries No.3 and 3A were changed by him on the instructions of Manmohan Sharma, Inspector. Case diaries No.3A makes it clear that it has been recorded therein that supplementary statement of Kamla Devi and statement of Puja were recorded under section 161 of the Code. It has not been explained as to what were contents of original case diaries, which were replaced by present one, wherein statement of Kamla Devi and Puja are alleged to have been recorded. In her report Ex.PW2/A, Kamla Devi nowhere speaks that Puja was with her, when she went to police station, Gandhi Nagar, and removed her husband to SDN Hospital, Delhi. In order to implant Puja as a witness, case diaries were changed. In Ex.PW2/A name of Ajay Kumar Sharma was not mentioned by Kamla Devi, while in her supplementary statement Ex.PW16/DA, she adds his name as author of crime. Puja also adds name of Ajay Kumar Sharma in her statement Ex.PW16/DA as well as before the Court. All these ­52­ aspects highlight that Puja was not present at the spot and she was later on procured as a witness with connivance of Inspector, Manmohan Sharma. Puja never produced her blood stained clothes before police to substantiate facts that she was present by the side of his father, when he was removed to police station and SDN Hospital, Shahdara, which fact clinches the issue. Consequently, it is concluded that Puja was not present at the spot and her testimony cannot be considered, while adjudicating guilt of the accused persons.

35. Mohan Singh SI makes it clear that no blood was seen by him at the spot. He projects that he questioned Smt. Kamla Devi on that issue and she could not give satisfactory reply. He deposed in unambiguous words that he made inquiries from Kamla Devi and Pawan Kumar, questioning them, that if incident had really taken place in the aforesaid jhuggi , there would have been blood inside it. None of them could give satisfactory reply. He makes it clear that on interveing night of 14/15­07­98, he remained at the spot along with SHO upto 5am approximately. Therefore, out of facts testified by Mohan Singh SI, it came to light that no blood was present at the spot and when he questioned the witnesses on that issue, they could not satisfy the investigating officer. A claim has been made by Smt. ­53­ Kamla Devi that her husband was assaulted by the accused persons with iron rods, lathis and stones. He received serious injuries and his clothe (underwear, which was worn by him at that time) was smeared with blood. She further tells that her clothes were also smeared with blood. According to her, blood also fell in three wheeler scooter, in which Jagat Narain was removed to hospital. Therefore, out of these facts, this witness wants to project that blood oozed out of injuries of her husband. However, she could not point out any trail of blood at the spot. In Ram Sewak (2004 (II) SCC 259), the Apex Court ruled that when investigating agency was unable to find blood at the spot and explanation by the prosecution that it had rained was found to be unbelievable and absence of trail of blood gave an inference that incident might have happened at some other place. In Rishi Pal (1993 JCC 430), High Court had also ruled that absence of blood at the spot puts credibility of prosecution story in doubt. Here in the case, absence of blood at the spot raised issues, which are not replied. An explanation was offered by Kamla Devi that it rained that day blood was washed. However, she could not explain as to why blood was not noticed inside her jhuggi. Her testimony on the above issue was contradicted by her son Pawan Kumar, who testified that blood stand dried and it was shown to police. These aspects pushes ­54­ the case in arena of doubt.

36. In her report Ex.PW2/A, Kamla Devi projects that incident occurred inside her room and outside her jhuggi. Those facts were projected by her, when Mohan Singh SI reached spot and prepared site plan Ex.PW22/C. When Pawan Kumar was implanted as a witness, story was given a twist to the effect that Jagat Narain was dragged to Shiv Juice Shop and was beaten there too. Therefore, for the first time on 18.07.98, it was projected that incident had occurred in front of Shiv Juice Shop also. Consequently, moulded events were projected by Pawan Kumar and Kumari Puja. In her supplementary statement, Smt. Kamla Devi had also given twist to the facts. Site plan Ex.PW1/A was prepared, wherein scene of crime has been shown inside the jhuggi, outside it and in front of Shiv Juice Shop. However, Jhuggi of Jagat Narain depicted in site plan Ex.PW22/C is different jhuggi than one depicted in Ex.PW1/A. It has nowhere been explained as to why Kamla Devi could not explain that her husband was assaulted in front of Shiv Juice Shop. It is evident that Kamla Devi had improved her version with a view to make out a fool proof case. Pawan Kumar and Puja were introduced as witness to give strength to her version. Had there been veracity in her version, she ought have projected scene of crime in front of Shiv Juice Shop in her ­55­ statement Ex.PW2/A. Absence of those facts in her statement Ex.PW2/A as well as in site plan Ex.PW22/C make it clear that subsequently twist was given to case with ulterior motives.

37. Smt. Kamla Devi raised an accusing finger on the accused persons, saying that they came there duly armed with lathis, iron rods and stones and assaulted her husband. She further projects that Dinesh and Rakesh caught hold of her husband and dashed him against the wall of his jhuggi. According to her, her husband sustained severe injuries and when she raised hue and cry, accused persons ran away. In her first information report, she names nine persons as author of crime. In her supplementary statement Ex.PW16/DA, she adds names of Ajay Kumar Sharma to the list of accused persons. She made complaint to Lal Bihari Tiwari, which is Ex.PW6/A, wherein she mentions name of Chantu, Lalsa and Bhim in addition to accused persons already named by her. Her statement was recorded by the inquiry officer, which is Ex.PW5/A, wherein she deletes names of Chantu, Lalsa and Bhim. She again made statement before the Special Executive Magistrate, which is Ex.PW16/DWGH, wherein she names Chander Bhan Yadav, Sonu brother of Kamlesh, Uma Shankar, Ram Prasad, Dinesh, Munni Raj, Bhim Prasad and Ram Dulare as the persons responsible for death of ­56­ her husband. In that statement, she had not named accused persons, facing trial in the case, as authors of crime. Consequently, it is evident that as and when Kamla Devi had an opportunity to narrate facts as to who had caused death of her husband, she changed her version with convenience. It is a fluid situation as to which statement of Kamla Devi should be give credence as to the identity of person, who were responsible for death of her husband. When the lady changes her version as to the identity of persons, who were responsible for death of her husband, she cannot be termed as reliable witness as to the identity of persons, who caused death of her husband.

38. Facts testified by Surjeet Pal Dhawan nowhere bring anything over record to this effect that it were accused persons, who assaulted Jagat Narain and caused injuries on his person. He simply speaks that Jagat Narain showed apprehension that his tenants may kill him. These apprehensions were nurtured by the deceased. It has not come over the record as to what were the basis for such apprehension. Mere that fact will not go to adjudge accountability of the accused persons. Sh. Dhawan further deposed that on 16.07.98, he went to SDN Hospital and found Jagat Narain admitted there. That fact brings secondary circumstances and is not sufficient to ­57­ establish identity of the accused persons as authors of crime.

39. When facts testified by Hirdaya Narain and Smt. Kamla Devi, which are found to be reliable, are taken into account, it comes to light that on 14.07.98, Jagat Narain was assaulted, taken to police station, Gandhi Nagar, and thereafter got admitted in SDN Hospital, Shahdara. He was transmitted to JPN Hospital, where he expired on 18.07.98. Since Smt. Kamla Devi had made discrepant statements regarding identity of the persons, who were responsible for death of her husband, her testimony on that count is found to be unreliable. Kumari Puja and Pawan were implanted as witnesses. Therefore, facts testified by them were brushed aside from consideration of guilt of the accused persons. It is evident that facts, concerning receipt of injuries and admission of Jagat Narain in hospital, are not sufficient to adjudge accountability of the accused persons for charge. At the cost of repetition, it is said that Smt. Kamla Devi had fabricated facts regarding identity of the accused persons and her testimony on those counts is unworthy of credence. When her testimony is brushed aside from consideration of guilt of the accused persons, nothing remains over record to establish accountability of accused persons for charge.

40. Before parting it would be expedient to take note of factum of unfair investigation conducted in the case. Mohan Singh SI admits ­58­ that case diaries No.3 and 3A recorded on 18.07.98 were replaced by him at the instance of Manmohan Sharma, Inspector. As detailed above, after changing those case diaries, supplementary statement of Kamla Devi, which is Ex.PW16/DA, statement of Kumari Puja and statement of Pawan were shown to have been recorded on 18.07.98. Kumari Puja and Pawan were implanted as witness and supplementary statement of Kamla Devi was alleged to have been recorded with intent to fabricate false evidence and to cause aforesaid offenders to be convicted for a capital offence. Mohan Singh SI as well as Manmohan Sharma Inspector were charged with preparation of record of case correctly and they framed incorrect record with intent to cause loss and injury to organs of the State, that is judicial system as a whole as well as to the accused persons, facing trial in the case. Therefore, it is evident that offence punishable under section 194 and 218 of the Penal Code were committed. Consequently, it is expedient to put law into motion so that offenders may be brought to book. Consequently, it is ordered that Deputy Commissioner of Police (East), shall get a case registered at police station Gandhi Nagar and cause it to be investigated by an officer not below the rank of Addl. DCP, under intimation to this Court.

­59­

41. In view of foregoing discussions, it is evident that prosecution has miserably failed to prove its case against accused persons. Testimony of Smt. Kamla Devi, Hirdaya Narain, Pawan and Kumari Puja were found to be unreliable on material aspects as to identity of the accused persons, who eliminated Jagat Narain. Discrediting their depositions, accused persons are acquitted of the charges. Their bail bonds are discharged. File be consigned to Record Room.

Announced in the Open Court                        (Dr. R.K. Yadav)
          rd

On this 23 of November, 2007. Additional Sessions Judge :

Karkardooma Courts, Delhi.