Delhi High Court
Rakesh Aggarwal vs State (Delhi Admn.) on 7 April, 1995
Equivalent citations: 1996CRILJ2180, 1995(3)CRIMES149, 1995(33)DRJ414
Author: S.D. Pandit
Bench: S.D. Pandit
JUDGMENT P.K. Bahri, J.
(1) Rakesh Aggarwal s/o Shri Ram Kishan Dass Aggarwal has filed this appeal challenging the judgment and order dated November 18, 1988, of an Additional Sessions Judge, Delhi, by which he has been convicted of an offence punishable under Section 302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life.
(2) The case of the prosecution, in breif, is that Public Witness 6 Smt.Kanta Sharma, her brother Public Witness 10 Keshav Chand and their brother Subhash (since deceased) were living in house No.51, Lane Raja Kidar Nath, Chawri Bazar, Delhi. The appellant was a friend of Subhash. Appellant had allegedly loaned some money to Subhash. On July 16, 1984, the two brothers accompanied by their sister at about 11.30 Am were proceeding to temple Chaurasi Ghante for having some pooja on the auspicious day of Monday of Sawan. They had started from their house and were proceedings in through churiwalan road and they found appellant standing opposite to the lane Godya and he asked Subhash to return his five hundred rupees as he was in need of the same but Subhash retorted that he had no money with him at that time and he would refund the money when he had the same but the appellant insisted on getting his money then and there but Subhash reiterated that he had no money to give at that time. Rakesh is stated to have uttered a filthy abuse (Bhain Chaud) and he shouted that he (Subhash) knew how to get the loan and did not know when it was to be returned. Subhash protested to him that he should not give him such filthy abuse and it was not right but appellant who was already enraged took out a knife from right pocket of his pant and attacked Subhash with the said knife and gave two or three blows with the knife on Subhash's chest and Subhash profusely bled from his injuries and Keshav and Kanta raised an alarm and Rakesh managed to run away carrying the knife with him towards chawri bazar. On hearing the alarm, certain police officials arrived at the spot and one of the constables accompanied them to Jpn Hospital where Subhash was got admitted.
(3) DR.VIR Singh, Public Witness 1, who was working as Casualty Medical Officer in the Hospital, had prepared the medico legal certificate Ex.PW1/A in which he recorded that Subhash had been brought by Constable Ishwar Dass at 12.25 Pm with the alleged history of being stabbed by some person and patient was having history of vomitting and history of unconsciousness and he found two incised wounds on the chest of Subhash. Subhash was admitted in regular ward for treatment but unfortunately Subhash succumbed to his injuries in the hospital at about 4.15 PM.
(4) Constable Naresh Kumar had given message to Police Station, Hauz Kazi at 12.10 Pm on that day mentioning that in front of the Lane Godya a stabbing incident had taken place. The same was recorded in Daily Diary No.10-A, copy of which is Ex.PW3/A. Public Witness 14 Si R.D.Sharma was handed over copy of this report who Along with Constable Nathu Singh proceeded to the spot and on reaching the place of occurrence he found Constable Naresh Kumar present from whom he learnt that injured had been taken to the hospital by Constable Ishwar Dass Public Witness 13 and he, leaving behind Constable Naresh Kumar to preserve the spot, reached the hospital where doctor declared Subhash unfit for statement at 1.48 PM.
(5) It is the case of the prosecution that Keshav Chand Public Witness 10 was met in the hospital and he gave the statement Ex.PW3/C which was sent to the Police Station for registration of case vide endorsement Ex.PW16/A through Constable Nathu Singh and Fir under Section 307 of the Indian Penal Code was recorded at the Police Station at 2.25 Pm, copy of which is Ex.PW3/D while the substance of the Fir is stated to have been recorded in Daily Diary No.12/A, copy of which is Ex.PW3/E. (6) At about 1.20 Pm even the duty constable at the hospital Shri Barkat Ali had intimated the Police Station about admission of Subhash, having been injured in a stabbing incident, in the hospital by Constable Ishwar Dass. The same was recorded at serial No.45B, copy of which is Ex.PW3/B. Subhash having died at 4.15 Pm, the intimation was sent by Constable Barkat Ali to the Police Station which was recorded in Daily Diary No.15A, copy of which is Ex.PW3/G at 5.20 PM. The Investigating Officer had come to the place of occurrence after registration of the case and had lifted the blood stained earth and sample earth which he converted into sealed parcel vide recovery memo Ex.PW5/A which was signed by one witness Daljit Singh Public Witness 5 and also by Keshav Chand and Constable Naresh Kumar. Appellant was also arrested on the same day in presence of these two constables Naresh Kumar and Nathu Singh and one Daljit Singh and his blood stained clothes were taken into possession vide recovery memo Ex.PW5/B and seal was stated to have been given to Daljit Singh. No weapon of offence could be recovered. The place of occurrence was got photographed and the prints are Ex.PW7/A1 to A3. The clothes of the deceased were also taken into possession from the hospital vide recovery memo Ex.PW11/A. The inquest proceedings were held by the Investigating Officer and inquest papers Along with dead body were sent for post mortem examination and they were received by the doctor performing the post mortem on July 17, 1984,at 9.10 AM.
(7) According to the prosecution, the occurrence had been witnessed by Daljit Singh Public Witness 5, Kanta Sharma Public Witness 6 and Keshav Chand Public Witness 10. Appellant has pleaded innocence mentioning that he had been falsely implicated in this case on some suspicion.
(8) The learned counsel for the appellant has vehemently argued that it was a blind murder and there was no eye-witness available and in this case the investigation has not been fair inasmuch recording of the Fir had been deliberately delayed and false witnesses had been introduced in order to just solve the case of murder. He has pointed out to various material discrepancies appearing in the statements of the alleged eye-witnesses in order to to show that in all probability they were not present at the time of the occurrence. He has also pointed out that at no point of time the police had converted the case from under Section 307 to Section 302 of the Indian Penal Code on the crucial day although Subhash had succumbed to his injuries within a few hours of being admitted in the hospital. He has urged that even before the Fir was written, Subhash must have died and instead of registering the case under Section 302 of the Indian Penal Code the Investigating Officer had conveniently got it registered under Section 307 of the Indian Penal Code.
(9) The learned counsel for the State on the other hand has argued that keeping in view the various entries made in the Daily Diary of the Police Station, it is not possible to countenance the contention of the appellant that there had occurred delay in recording the FIR. He has urged that there was no reason for the two close relations of the deceased duly supported by independent statement of Daljit Singh imputing the murder of Subhash to the appellant. He has urged that relations of the deceased would not have allowed the real culprit to escape and unnecessarily falsely implicate the appellant. He has argued that statements of the two relation witnesses have been rightly accepted by the Additional Sessions Judge for bringing home the offence to the appellant as the said statements found due corroboration from the circumstances of the case.
(10) The fact that Subhash was injured in an occurrence which took place on July 16, 1984, at 11.30 Am in front of Gali Godya and on account of the injuries received in the said occurrence Subhash had met his death are not in dispute and they are well established from the medical evidence as well as from the lifting of the blood from the spot. Public Witness 2 Dr.B.N.Reddy, who performed the post mortem on the dead body of the deceased, had found the two fatal injuries on the chest of the deceased and vide his report Ex.PW2/A, he gave the opinion that death was due to haemorrhage and shock as a result of stab injuries of chest vide injury No.8. He had noticed eleven injuries on the dead body of Subhash and opined that injuries Nos.4,6,7 & 10 were surgical injuries where as injuries Nos.8 & 9 had been caused by penetrating cutting weapon probably single edged and injury No.8 was sufficient to cause death in ordinary course of nature. He further opined that injuries Nos.2,3 & 11 were caused by blunt force or surface. Injuries Nos.8 & 9 were found on the chest while injury No.2 was a superficial incised wound on the terminal phalanx of right thumb and injury No.3 was again a superficial incised wound on the terminal phalynx of right index finger and injury No.11 was again on the chest.
(11) It is, indeed, evident that substance of the Fir which was under the law required to be written in the Daily Diary mentioning names of the eye-witnesses and of the accused was not so written. The only fact mentioned in the relevant Daily Diary is that a rukka incorporating statement of Keshav had been received on the basis of which the Fir had been registered. The duty officer, who had recorded the Fir in the register and made the entries in the Daily Diary was examined as Public Witness 3 Asi Shiv Sharan. From his testimony it came out that the Fir preceding the serial number of the Fir in question and also succeeding Fir were of the cases which remained untraced.
(12) Constable Naresh Kumar admittedly was attracted to the place of occurrence when Subhash was stabbed and the culprit was escaping. He was the best witness to tell us as to who were present near the injured when he immediately rushed to the scene of occurrence on hearing the alarm. Constable Naresh Kumar was cited as a witness but he was given up as unnecessary for reasons best know to the prosecution.
(13) PW13 Constable Ishwar Dass, who was working in Police Station Hauz Kazi at the relevant time had admittedly taken Subhash from the place of occurrence and got him admitted in the hospital and he in his statement in court deposed to only these facts but he in examination-in-chief disclosed that before the injured was taken to the hospital Si R.D.Sharma (Public Witness 14) Investigating Officer had already arrived and on his direction he had taken the injured to the hospital and got him admitted. He had deposed that injured had told him on the way that Rakesh had inflicted the injuries on him. So, he refers to dying declaration made by Subhash. He does not say that he had found any relations present near the injured or he had found any eye-witness present at the spot.
(14) As far as dying declaration is concerned, we are of the opinion that it is highly doubtful that any such dying declaration could have been made by Subhash because in the medico legal certificate referred above, it has been recorded that this Constable Ishwar Dass had given the history that Subhash had vomited and had become unconscious and he had been stabbed allegedly by some person. Name of the person who had stabbed him does not find mention in the medico legal certificate. In case any such dying declaration had been made by Subhash, there is no earthly reason why Constable Ishwar Dass had not got recorded in the medico legal certificate the name of the assailant of Subhash if he knew that name. It is also not understood that in case Public Witness 14 the Investigating Officer already arrived at the spot and he had given direction for removal of Subhash to the hospital why he was not informed by Constable Ishwar Dass or by Subhash that appellant had stabbed Subhash. Moreover, when the Investigating Officer had reached the hospital and was proceeding to record statement of Keshav in the hospital, Constable Ishwar Dass could not have kept back the vital information from the Investigating Officer that Subhash had already made a dying declaration on the way to the hospital. So, no reliance can be placed on testimony of Constable Ishwar Dass Public Witness 13 that any dying declaration had been made by Subhash while on the way to the hospital.
(15) Constable Ishwar Dass had over-ruled the possibility of any relations of Subhash being present when Subhash was being taken to the hospital. Daljit Singh Public Witness 5 had deposed that on the day of occurrence he had come to Churiwalan at about 11.30 Am and found that someone had given knife injuries to one boy whose name he came to know later on as Subhash. He also stated in his examination-in-chief that he did not know who had given knife blows to Subhash. On the request of the prosecutor the witness was allowed to be cross-examined and in cross-examination by the prosecutor, at first he deposed that he had not told the police that any hot words were exchanged between two persons and a woman. He further stated that he did not see the appellant at the spot. He denied the suggestion that one of the two persons who were exchanging words was the present appellant. However, then he changed his version and stated in reply to another question put by the prosecutor that in fact appellant had exchanged hot words with the other person and he had separated them but they did not stop and appellant had given knife injuries to the other person and that two or three knife blows were given by the appellant on the chest of Subhash and Subhash had fallen down bleeding from his injuries and many persons had raised hue and cry but he cannot say whether there was any girl who raised any alarm. He denied that appellant had been arrested in his presence and his blood stained clothes had been taken into possession in his presence although he admitted his signatures on the recovery memos.
(16) In cross-examination he stated that he had signed the recovery memos not at the spot but in the Police Station in the evening. He deposed that injured had requested him to go to his house and call his relations and thereafter he had gone to the house of the injured and informed his relations. He categorically stated that he did not know Kanta and Keshav Sharma, witnesses. He denied that he had told the police in his statement about the presence of the said two witnesses at the time of the occurrence. He was confronted with his statement so recorded by the police. He stated that he was not aware how injured was removed to the hospital and by whom. It appears that this witness has no regard for truth. Initially he was not inclined to support the prosecution case but then he prevaricated and in cross-examination by the prosecution to some extent he supported the prosecution case. It is true that testimony of a hostile witness is not to be completely rejected and court can place reliance on some portions of his testimony if the same are truthful and they are corroborated by some independent evidence. Reference may be made to Bhagwan Singh Vs State of Haryana, 1976 Scc (Cri) 7, where it has been held that evidence of a hostile witness does not get effaced completely and conviction can be based on the portion of the evidence of hostile witness which is reliable and is supported by other reliable evidence.
(17) It is significant to mention that in the Fir the name of this witness as an eye-witness or otherwise does not appear. He appears to be known to the family of the deceased and in case he was present at the time of the occurrence, his name would have figured in the FIR. Moreover, Public Witness 13 Constable Ishwar Dass who came to the spot on hearing the alarm does not say that he found Daljit Singh or any other eye-witness present at the spot. So, it becomes difficult to place any reliance on the statement of this witness that in fact he had witnessed the occurrence and he was a truthful witness.
(18) PW6 Kanta Sharma, while narrating the facts about, she and her brothers proceeding to the temple on that day and at that time being confronted by appellant and the altercation taking place between the appellant and Subhash on money matter, had deposed that she and Keshav had proceeded ahead by 10-15 paces that they heard the noise that some stabbing incident had occurred and they came back to the spot and found that Subhash was lying injured and Rakesh was having a blood stained knife in his hand and was running away towards Chawri Bazar. In examination-in-chief, she did not say that she had seen the appellant stabbing Subhash. The Public Prosecutor was permitted to cross-examine her and in cross-examination by the State she went along with prosecution version and deposed that Rakesh had taken out the knife from the pocket of his pant and had given injuries to Subhash with the knife. In cross- examination, she again prevaricated and deposed that she and Keshav had moved ahead when Subhash and appellant were exchanging hot words and then they heard the noise about the stabbing incident (Chaku Chal Gaya) and thereafter they returned to the spot and found Subhash having already received the injuries. She deposed that Subhash could not speak and had become unconscious at the spot and two constables who were standing near about and had seen the occurrence had come to the spot. According to her testimony, the constables had seen Rakesh having the blood stained knife and running away from the spot and one of the constables had pursued the accused and the other constable accompanied them to the hospital. She denied that she had mentioned in her police statement that she had seen Rakesh giving 2-3 blows with knife. She was confronted with portion A-A of her police statement with respect to this and this fact stood recorded. But in her further cross-examination she again changed her version and deposed that she had told the police that two or three blows were given on the chest but she had seen the injuries on the body of Subhash at the hospital. She again stated that she had actually not seen injuries being inflicted on Subhash. She also deposed that she had not seen Rakesh taking out the knife from his pant's pocket. She deposed that Subhash was taken to the hospital in a cycle-rickshaw and Keshav and one constable had gone with Subhash in the same cycle-rickshaw while she herself also went to the hospital in another cycle-rickshaw. She stated that Subhash had died within 10-15 minutes of being admitted to the hospital which fact appears to be not in consonance with the history sheet recorded of the patient in the hospital. According to her, her statement was recorded at the hospital at first after Subhash had died and thereafter statement of Keshav was recorded. If we believe her, then it means that no statement of any eye-witness had been recorded prior the death of Subhash. If that is so, it is evident that Fir was not recorded at the time it purports to have been recorded. At one stage, she deposed that she was not present when statement of her brother Keshav was recorded. According to her, she from the hospital had gone to her house and had not come to the spot.
(19) The testimony of Keshav Public Witness 10 is in consonance with the facts mentioned in the FIR. However, he stated that it is Constable Naresh Kumar who took Subhash in a cycle rickshaw to the hospital and he and Kanta had followed in another cycle rickshaw. Obviously in case Keshav was present at the time of the occurrence and in his presence Subhash had been removed to the hospital, he would not have named Naresh Kumar constable as the person who got admitted Subhash in the hospital. It is proved from the medico legal certificate and also from the testimony of Public Witness 13 that Constable Ishwar Dass had taken the injured to hospital and got him admitted there. In cross-examination, it has come out that he did not give any statement to the Investigating Officer in the hospital, as according to him, he had become very upset. He is categorical in his deposition that his statement was recorded at about 3.30 Pm at the place of occurrence. He deposed that he was not aware of the contents of his statement Ex.PW3/C which is the basis of the Fir as it was never read out to him although he had signed it. He admitted that he did not know the name of the appellant's father at all. Although in the rukka Ex.PW3/C which is the basis of the Fir the name of the father of the appellant stands written. No explanation has been given as to how name of the appellant's father came to be written in the statement of this witness which is the basis of the Fir when this witness did not know appellant's father's name. According to him, it was appellant who might have told his father's name at the Police Station at 3.30 P.M. If that is so, then irresistible inference can be drawn that the Fir was brought into existence after arrest of the appellant. Rather Public Witness 10 is very categorical in his statement that at 3.30 Pm his statement was recorded when appellant was already in police custody. He also admitted in cross-examination that he was not aware of the part of the body where the knife blows were given and he did not tell such fact to the police. He further stated that he did not tell the police that his brother had been given injuries with the knife. He denied having helped his brother in placing him in the rickshaw. He denied of his having even touched the person of his brother. He denied that his clothes had become blood stained at any time.
(20) Keeping in view the statements of the said crucial three witnesses as discussed above, it becomes really doubtful to believe that they were the eye- witnesses of the occurrence.
(21) The learned counsel for the State tried to derive some support from the case of Naseem Ahmed Vs Delhi Administration, 1974 Scc (Cri) 198. The case is based on its own facts which have no relevancy to the facts of the present case. Reference has been made by the learned counsel for the State to State of Assam Vs Muhim Barkataki & Another, . This judgment is also distinguishable on facts. In the said case, the eye-witness account given by the eye- witnesses was found to be truthful and reliable and even the evidence of police officer was found to be truthful and it was held that evidence of police officer cannot be under-estimated merely because he is police officer.
(22) In the present case, two police constables were the first to arrive at the spot soon after the occurrence. One of them Naresh Kumar has not been examined in court whereas other constable Public Witness 13 does not say that he met any of the relations of Subhash at the spot or he met even any eye-witness of the occurrence at the spot. He stated that he on direction of Public Witness 14 Si R.D.Sharma took the injured to the hospital. It means that even Public Witness 14 had arrived at the spot before the injured was removed to the hospital. In the medico legal certificate there is no mention that any relations of injured had come to the hospital. The doctor who prepared the medico legal certificate deposed that in case relations had come with the injured he would have mentioned this fact in the medico legal certificate and he would have taken the history from such relations. The statements of the three material witnesses Public Witness 5, Public Witness 6 and Public Witness 10 leave us with the impression that they were not present at the time of occurrence. The discrepancies in their statements are not minor discrepancies but they go to the root of the matter.
(23) In view of these facts the lapse of the police in not entering the substance of the Fir in the Daily Diary assumes importance which would indicate that there was deliberate attempt to delay the recording of the Fir in order to find out pliable eye- witnesses of the occurrence. Public Witness 6 & Public Witness 10 do not even refer to presence of Daljit Singh at the spot. The police had unfortunately in this case tried to set up false eye-witnesses. It may be that Kanta and Keshav were made to believe by the police that crime was perpetrated by the appellant, so they succumbed to the influence of the police to toe the line of the police for involving the appellant against whom they might have some suspicion.
(24) In view of the above discussion, we hold that conviction of the appellant is not well based. The prosecution has failed to bring home the offence to the appellant beyond reasonable doubt.
(25) We allow the appeal and set aside the conviction and the sentence of the appellant and acquit him of the charge. The appellant is already on bail. His bail bond is cancelled.