Delhi District Court
State vs Accused on 24 January, 2012
IN THE COURT OF DR. T.R. NAVAL ADDITIONAL
SESSIONS JUDGE-02 EAST DISTRICT KARKARDOOMA
COURTS DELHI
SC NO. 64/10 Date of Institution :11.10.2010
FIR No.101/10 Date of Argument :21.01.2012
PS Vivek Vihar Date of Order :24.01.2012
U/S 307/302/34 IPC
State Versus Accused
1 Zile Singh @ Billoo
S/o Late Babu Singh
R/o Jhuggi No.40,
Behind Tata Room School,
Near Jamashed Ki Dairy,
Kasturba Nagar, Delhi.
2 Saeed @ Shahid
S/o Sh. Mohd. Farid
R/o Jhuggi No.59, 18 Qtr.
Vishwas Nagar, Delhi.
3 Deepak Kumar @ Puri
S/o Shyam Kumar
R/o 28/68, Kastoorba Nagar,
Delhi.
4 Channu @ Chunnu
S/o Late Rakesh
R/o H.No.622, Shahdara,
Sabzi Mandi,
Old Railway Station,
Shahdara, Delhi
JUDGMENT
The facts in brief of the prosecution case are that on 19.05.2011 at about 10 p.m. at house No.263, Gali No.6, opposite railway line, Rickshaw Garrage, Jawala SC No. 64/10 State Vs. Zile Singh & Ors. 1/64 Nagar, accused Zile Singh @ Billoo, Saeed, Deepak Kumar @ Puri, Channu @ Chunnu in furtherance of their common intention caused knife blow injuries on the body of Rahim & Bilal. On receiving information PCR vehicle removed them to the Dr. Hedgewar Arogya Sansthan, Delhi where both of them were medically examined. Injured Bilal made his statement to the police on the basis of whom FIR bearing No.101/10 dated 19.05.2010 was recorded. IO inspected the place of occurrence, invited the crime team, got the scene of occurrence photographed, lifted the samples from the place of occurrence, seized those vide seizure memo, prepared site plan and deposited the exhibits in the police Malakhana. Injured Rahim succumbed to his injuries on 20.05.2010. IO prepared the inquest documents, got the postmortem conducted on the dead body of deceased Rahim and thereafter handed over dead body to the relatives of the deceased. On secret information accused Zile Singh was arrested in the evening of 20.05.2010 from the place near Shahdara Railway Station towards Man Sarovar Park. His arrest memo and personal search memo was prepared. He made disclosure statement which was recorded. Accused Zile Singh pointed out the place of occurrence and pointing out memo was prepared. Accused Saeed, Deepak Kumar @ Puri and Channu @ Chunnu surrendered in the court on different date(s). IO formally SC No. 64/10 State Vs. Zile Singh & Ors. 2/64 arrested them with the permission of the court and interrogated them and recorded their disclosure statements prepared their arrest memo and personal search memo. IO sent the samples to FSL, recorded statements of witnesses and on completion of investigation and on receiving FSL reports filed charge sheet against all the four accused for their trial for the offences punishable u/s 302/307/34 IPC.
2. Ld. Metropolitan Magistrate after supplying copies of charge sheet and documents committed this case to the court of sessions and the case was assigned to this court.
3. As my Ld. Predecessor vide her order dated 16.12.2010 was of the view that a prima facie case for the offences punishable U/s 302/307/34 IPC was made out against all the accused persons so the charge against all the accused persons for said offences was framed and read over to them in vernacular language. All the accused persons pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, examined ASI Sarfuddin as PW1; Ct. Deepak as PW2; Injured Sh. Bilal, brother of deceased Rahim as PW3; HC Dharmender as PW4; Smt. Gulshan Fatima wife of deceased as PW5; Sh. Paramjit Singh cousin of deceased as PW6; ASI Gopal Das as PW7; Sh. Satpal another cousin SC No. 64/10 State Vs. Zile Singh & Ors. 3/64 of deceased as PW8; Ct. Manoj Kumar as PW9; Dr. Amit Gupta as PW10; ASI Rajpal Singh as PW11; Inspector Sanjay Drall as PW12; SI Abdul Wahid as PW13; Ct. Davender as PW14; SI Amarjeet Singh as PW15; Dr. Meghali Kelkar as PW16; HC Ajeet Singh as PW17; Insp. Mahabir Panwar as PW 18 and HC Bijender as PW19.
5. After closing of prosecution evidence statements of all the accused were recorded u/s 313 Cr.PC. All the material and incriminating evidence on judicial record was put to them. All the accused persons either denied the evidence put to them or expressed their ignorance about the same. All of them pleaded that they have been falsely implicated in this case by the police. PW Ajeet Singh deposed against them falsely due to ulterior motive. Rahim & Bilal did not inform him at any point of time as they were unconscious at the time of shifting them from the spot to hospital. PW Bilal did not make any statement to the police but ASI Abdul Wahid obtained his signatures on blank papers and prepared the false documents.
6. In support of their defence, the accused persons examined Smt. Sunita @ Sonu, wife of accused Zile Singh as DW1, Smt. Bimla, mother in law of accused Zile Singh as DW2; Smt. Naseem Bano, mother of accused Saeed as DW3; Rakesh, uncle of accused Chunnu as DW4; Smt. SC No. 64/10 State Vs. Zile Singh & Ors. 4/64 Sarla, mother of accused Chunnu as DW5 and Smt. Asma, sister of accused Saeed as DW6.
7. After closing of evidence by the parties I have heard arguments of Ld. Addl. Public Prosecutor for the State and ld. Defence Counsel for the accused persons and perused file.
8. On perusal of charge sheet and other documents, on examination and analyzing of evidence on record and on considering the arguments, I have formed my opinions and that are discussed herein below:
9. It would be appropriate to reproduce Sections 34, 300 and 307 of IPC. These run as under:
"Section 34. Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
"Section 300. Murder. --Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. or 3rdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk SC No. 64/10 State Vs. Zile Singh & Ors. 5/64 of causing death or such injury as aforesaid. Section 307. Attempt to murder - Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned."
10. On perusal of file, I find that the main/eye witness did not support the prosecution case. PW3 is injured Bilal who deposed that on 19.05.2010 he was residing at house No.263, Gali No.6, Jwala Nagar, Shahdara, Delhi-32 and he was running a business as private driver. A lady named Sonu, who belonged to Sansan caste, was residing adjacent to his house. At about 10/10:30 p.m. he was present inside his house. On hearing noise outside his house, he came out of his house and saw that crowd had gathered there. It was dark at that time. Someone caused injury on his right side finger as well as back side of palm and on just back side of his left shoulder. Thereafter he became unconscious. When he regained consciousness, he found himself in Hedgewar Hospital. In the night police came in the hospital but he was not conscious. Police obtained his thumb impression on a plain paper. He remained in the hospital for 13 days. Thereafter he was discharged from the hospital and returned back to SC No. 64/10 State Vs. Zile Singh & Ors. 6/64 his house where he came to know about the death of his brother Rahim. He did not know any fact as to how his brother expired and he was not aware whether his brother was killed by someone or he expired of his own. Police visited his house and made some inquiries. He did not know anything more about the case except the police obtained his thumb impression at point A on document Ex.PW3/A. He could not identify any of the accused persons present in the court today who were involved to kill his brother Rahim and also caused injuries on him. He was declared hostile. During cross examination conducted by Ld. Additional Public Prosecutor he stated that he did not know any person named Zile Singh. He denied the suggestion that in the statement Ex.PW3/A he stated to the police that Zile Singh used to visit at the house of Smt. Sonu Sansan and about two weeks ago there was a quarrel between Zile Singh, his brother and Saeed on monetary transaction or that on 19.05.2010 at about 10 p.m. accused Zile Singh, alongwith Saeed, Chunnu & Deepak came there or that Zile Singh told them, "Pakro Salon Ko, Aaj Jinda Bach Ke Na Jayen" and thereafter Chunnu caught hold him and his brother caught hold by Deepak and then Zile caused knife blows continuously upon Rahim and Saeed attacked on him with knife and his brother sustained injuries on his stomach, head and legs.
SC No. 64/10 State Vs. Zile Singh & Ors. 7/64 However, he admitted that he sustained injuries on his left shoulder and left hand behind the palm and that Saeed is his relative. He denied the suggestion that he told to the police that above named accused persons attacked on him and his brother with the common intention to kill them or that at the time of quarrel all the accused persons were under the influence of liquor or that during quarrel accused Zile Singh fell down on the ground two/three times and he also sustained injuries. He denied the suggestion that accused persons killed his brother by inflicting number of knife blows upon him. During the cross examination of Ld. Defence Counsel he stated that his brother Rahim did not sustain injuries in his presence and he was unable to tell as to how he sustained injuries. When he came out from his house hundreds of persons had gathered there and he sustained injuries immediately after coming out from his house and became unconscious.
11. It has been argued on behalf of Ld. Additional Public Prosecutor that PW Bilal deposed falsely in the court. He did not sustain injuries of such nature which could have made him unconscious. He made his statement truly to the police in the hospital but due to reasons best known to him he changed his testimony. On the other hand it has been argued by Ld. Defence Counsel that he deposed truly and he did not make any statement to the police and police SC No. 64/10 State Vs. Zile Singh & Ors. 8/64 recorded his statement of his own and obtained his thumb impression when he was in unconscious state of mind and prepared false documents.
12. It would be appropriate if this point is discussed after discussing the testimonies of other witnesses.
13. PW1 deposed that in the intervening night of 19/20.05.2010 he was posted as HC at PS Vivek Vihar. On that day he was present at his beat at Jwala Nagar. ASI Abdul Wahid met him at Gali No.6, Jwala Nagar and then he disclosed to him that the injured were taken to hospital by PCR. Ct. Deepak also accompanied him. Thereafter ASI Abdul Wahid left the spot along with Ct. Deepak for hospital after leaving him at the spot for safeguarding it. They returned at the spot after sometime. ASI Abdul Wahid called the crime team at the spot. Crime Team took the photographs of the blood which was lying on Chabutra of house no.260/264, in gali No.6, Jwala Nagar. Crime Team also lifted the blood from the spot with the help of cloth and kept the same in plastic container (dibbi) and prepared the pullinda in white cloth and sealed the same with the seal of AW and marked it as serial no.1. Blood stains soil (cemented) was also lifted with the help of hammer and it was also kept in the plastic container and sealed it in a pullinda with the seal of AW and marked it as serial no.2 and also collected the earth control and kept in SC No. 64/10 State Vs. Zile Singh & Ors. 9/64 plastic contained and sealed it with the seal of AW and marked it as serial no.3. All the parcels were taken into possession vide seizure memo Ex.PW1/A which was signed by him at point A. Seal after use was handed over to him. Thereafter, he joined the investigation with IO Inspector Mahavir Singh. They left for searching the accused persons and on secret information they arrived at Shahdara Railway Station from where accused Zile Singh was arrested on the pointing out of informer. He was arrested and interrogated. His disclosure statement, arrest memo and personal search memo, Ex.PW1/B, Ex.PW1/C and Ex.PW1/D were prepared. On 08.06.2010 he along with Inspector Mahavir Singh and ASI Amarjeet arrived at Karkardooma Court and accused Saeed @ Shahid was arrested with the permission of court. His arrest memo Ex.PW1/F, personal search memo Ex.PW1/G and disclosure statement Ex.PW1/H were prepared which were signed by him at point A. On 11.06.2010 he arrived at Karkardooma Court with Inspecter Sanjay Drall and Ct. Davender and arrested accused Deepak @ Puri s/o Sh. Shyam Kumar and prepared arrest memo Ex.PW1/J, personal search memo Ex.PW1/K and disclosure statement Ex.PW1/L which were signed by him at point A. On 23.07.2010 he again arrived at Karkardooma Court with Inspector Sanjay Drall and arrested accused Chunnu @ Chhanu with the permission of SC No. 64/10 State Vs. Zile Singh & Ors. 10/64 court. His arrest memo Ex.PW1/N, personal search memo Ex.PW1/O and disclosure statement Ex.PW1/P were prepared which were signed by him at point A. PW1 identified all the accused persons, namely Zile Singh @ Billoo, Shahid @ Saeed, Channu @ Chunnu and Deepak Kumar @ Puri correctly in the court.
14. PW2 deposed that on 19.05.2010 he was posted at PS Vivek Vihar. On that day he was present along with HC Sarfuddin at his beat at Jwala Nagar, Gali No.6. At about 10:45 pm ASI Abdul Wahid came at the spot. He informed him that injured persons had already been taken to Hedgewar Hospital by PCR. Thereafter, he along with IO left for the hospital, leaving HC Sarfuddin at the spot for caretaking the spot which was in front of house No. 260/264, in gali No.6, Jwala Nagar. At Hedgewar Hospital, he obtained MLC of injured Bilal and Rahim bearing nos. 1341/10 and 1342/10, respectively. Injured Rahim was unfit for statement at that time. IO prepared a rukka on the statement of Bilal and handed over the same to him and he was sent to PS for registration of the case. He went to PS Vivek Vihar and after registration of the case obtained copy of FIR and original tehrir and returned back to the Hedgewar Hospital and handed over the same to IO. Thereafter, IO recorded his statement in this regard on next day.
SC No. 64/10 State Vs. Zile Singh & Ors. 11/64
15. PW4 HC Dharmender deposed that on 20.05.2010 he was posted at PS Vivek Vihar as Constable. On that day Duty Officer handed over a copy of DD entry and asked him to handover the same to Inspector Mahavir Prasad. He went to GTB Hospital and handed over the same to Inspector Mahavir Prasad. From hospital, they went to Mortuary where postmortem on the body of deceased Rahim was conducted. Doctor gave one pullinda of blood in gauze of the deceased which was seized by the IO vide memo Ex.PW4/A which was signed by him at point A. After conduct of postmortem, dead body of Rahim was handed over to his relative.
16. PW5 deposed that Rahim was her husband. She was informed by many people that her husband was killed by one Sh. Zile. She did not know Zile and she was not able to identify him. Subsequently she came to know that his brother in law Bilal made a correct statement in the court. She was satisfied with his statement and she did not know the killer of her husband and she did not know anything more about the case. In cross examination she admitted that she did not see any person causing injury on the person of her husband. Small children informed him at his residence that her husband sustained injuries and then she went to the spot where she saw her husband lying alone on the ground in injured condition. None else was SC No. 64/10 State Vs. Zile Singh & Ors. 12/64 present there.
17. PW6 is cousin of deceased Rahim who identified dead body of Rahim in the mortuary of GTB hospital and signed his statement PW6/A and memo Ex.PW6/B at point A. PW8 also deposed that he identified dead body of his cousin Rahim in the mortuary of GTB hospital and police recorded his statement as Ex.PW8/A.
18. PW7 deposed that on 19.05.2010 he was posted at PS Vivek Vihar as Duty Officer. On receipt of rukka Ex.PW7/A at about 11:50 pm he recorded FIR, copy of which was proved as Ex.PW7/B. Prior to it he recorded DD entry no.28/A. The investigation of this case was assigned to ASI Abdul Wahid. He sent rukka and FIR to him through Ct. Deepak. On the same night at about 10:35 p.m. wireless operator on duty came to him and informed that a quarrel at house no.263, Jwala Nagar, Near Railway Line had taken place in which 2-3 boys were stabbed. He recorded this information at serial no.24 of DD register and proved the copy of DD Entry as Ex.PW7/C.
19. PW9 deposed that on 19.05.2010 he was called by ASI Abdul Wahid at the spot and he reached at spot, i.e. house no.260-264, gali no.6, opposite railway line, Jwala Nagar, Delhi along with Crime Team Incharge, ASI Ahatsam Ali and Finger Print Expert, ASI Harshwardhan. They inspected the spot and he took nine photographs from SC No. 64/10 State Vs. Zile Singh & Ors. 13/64 different angles at the request of ASI Abdul Wahid. He proved the photographs as Ex.PW9/A-1 to Ex.PW9/A-9 and negatives thereof collectively as Ex.PW9/B.
20. PW10 deposed that on 19.05.2010 he was on duty as Medical Officer at Hedgewar Hospital, Karkardooma, Delhi. On that day at about 11 p.m. he medically examined injured Rahim s/o Shahid aged 25 years male, brought by HC Ajeet Singh with alleged history of stab injury. Patient was conscious and oriented at the time of examination. He found three injuries on the body of injured which were mentioned in MLC Ex.PW10/A signed by him at point A. Patient was referred to SR Surgery for further management after giving first aid. On the same time he medically examined another injured Bilal s/o Shahid age 22 years male brought by HC Ajeet with alleged history of stab injury. Patient was conscious and oriented at the time of examination. He found two incised wound on the person of injured which were mentioned in Ex.PW10/B which was signed by him at point A. Patient was referred to SR Surgery for further management after giving first aid. He further deposed that endorsement Ex.PW10/C and Ex.PW10/D were made by Dr. Vishal on 21.07.2010 and 27.07.2010 on the MLC of injured Bilal regarding nature of injury. It was opined that those injuries were simple. In MLC Ex.PW10/B following injuries have SC No. 64/10 State Vs. Zile Singh & Ors. 14/64 been mentioned:
"1) CIW on left shoulder 4 cm x 3 cm.
2) CIW on left 3rd WEB 5 cm.
3) CIW on back 11 cm X 11 cm."
21. PW11 deposed that on 19.05.2010 he was posted in PCR and on receipt of information he arrived at the spot, i.e. house no.263, gali no.6, Railway Line, Jwala Nagar as there was information from the control room that there was a third injured. He came to know that another PCR R-57 had already taken the injured persons to the hospital.
22. PW12 deposed that on 11.06.2010 the investigation of this case was transferred to him from Inspector Mahavir. On 11.06.2010 he arrested accused Deepak and on 23.07.2010 he arrested accused Chunnu after taking permission of the court as they surrendered in the court. He prepared their arrest memo, personal search memo and disclosure statements Ex.PW1/J, Ex.PW1/K, Ex.PW1/L, Ex.PW1/N, Ex.PW1/O, Ex.PW1/P and pointing out memos Ex.PW1/M & Ex.PW1/Q.
23. PW13 deposed on the line of PW1 Sarfuddin and inter alia stated that on 19.05.2010 he was posted as ASI at PS Vivek Vihar. On receipt of DD No.24A at 10:35 am regarding stabbing by 2-3 boys he went to gali No.6, Jwala Nagar, Near Ganda Nala where he found beat HC Sarfuddin SC No. 64/10 State Vs. Zile Singh & Ors. 15/64 and Ct. Deepak. They told him that PCR officials had already taken injured persons to Dr. Hedgewar Hospital. Blood was lying at the spot. He instructed HC Sarfuddin to guard the scene of crime and he arrived at Dr. Hedgewar Hospital and collected MLCs of Bilal and Rahim. It was mentioned in the MLC of Rahim by Doctor that he was unfit for statement. It was mentioned on the MLC of Bilal by doctor that he was fit for statement. He recorded statement of Bilal at the hospital and recorded rukka thereon and sent Ct. Deepak at 10:40 p.m. to PS for registration of case and then he returned at the place of occurrence. Crime Team had already arrived at the spot. Photographs of scene of occurrence were taken by Ct. Manoj of Crime Team. Blood was lying in Chabutra in front of house no.260, Jwala Nagar. He picked up blood sample with the help of piece of cloth and put it in a plastic container (dibbi) and put serial number no.1 on it. Concrete on which blood was lying was also broken and put it in a plastic container (dibi) and gave it serial no.2. Dry soil which was found on the place of occurrence was also picked up and put it in third plastic container (dibbi) and gave it serial no.3. He converted the entire three containers in separate pullindas and sealed these with the seal of AW and took into possession vide seizure memo Ex.PW1/A. Seal after use was handed over to HC SC No. 64/10 State Vs. Zile Singh & Ors. 16/64 Sarfuddin. They returned to PS and deposited pullindas in malakhana. Name of accused persons were mentioned in the FIR. On 20.05.2010 he received information vide DD No.8A from GTB hospital about the death of injured Rahim. As injured expired so the investigation of this case was transferred to Inspector Mahavir Panwar. He accompanied him along with Ct. Dharmender to GTB hospital. IO got the postmortem on the body of Rahim conducted by the doctor. Dead body thereafter was handed over to the legal heir of Rahim. IO seized the sample blood of the deceased and sample seal which was handed over by the doctor after recording the seizure memo. On return at PS case property was deposited with the malkhana. At about 4 or 4:30 p.m. when they were in search of accused persons he received secret information at Circular Road, Jwala Nagar about the presence of accused at Shahdara Railway Station. IO asked 4-5 persons to join the reading party but all of them declined to join raiding party and left after showing their genuine problems. They arrived at Shahdara Railway Staion with secret informer and on his pointing out apprehended accused Zile Singh present in the court who was correctly identified. He was injured and there were bandage on his head and hand. He was interrogated. His disclosure statement Ex.PW1/B, arrest memo Ex.PW1/C, and personal search memo Ex.PW1/D were prepared. He SC No. 64/10 State Vs. Zile Singh & Ors. 17/64 also proved his endorsement as Ex.PW13/A on the statement of Bilal Ex.PW3/A and further stated that he had recorded the statement of Bilal truly and correctly.
24. PW14 deposed that on 11.06.2011 he along with IO and HC Sarfuddin came to Karkardooma court where accused Deepak was formerly arrested after obtaining permission of court. Accused Deepak was interrogated by the IO. He prepared arrest memo Ex.PW1/J, personal search memo Ex.PW1/K and that was signed by him at point B.
25. PW15 deposed that on 08.06.2011 he was posted at PS Vivek Vihar. On that day he along with Inspector Mahavir Singh Pawar and HC Sarfuddin had reached Karkardooma Court in connection with the investigation of the case. Accused Saeed @ Shahid, who surrendered before the Ld. M.M., was arrested with the permission of the court. He was interrogated. His disclosure statement Ex.PW1/H, arrest memo Ex.PW1/F and personal search memo Ex.PW1/G were signed by him at point B. He had also pointed out the place of incident and pointing out memo Ex.PW1/I was prepared. He identified the accused Saeed in the court correctly.
26. PW16 deposed that on 20.07.2010 at about 2:30 p.m. she conducted postmortem examination on the dead body of deceased Rahim, 25 years male, son of Shahid SC No. 64/10 State Vs. Zile Singh & Ors. 18/64 vide PM Report No.677/10 which was signed by her at point X. The details of the injuries and internal findings were mentioned by her in PM report Ex.PW16/A. The cause of death was hemorrhagic shock as a result of anti mortem injury to intestinal mesenteric vessels produced by sharp edged weapon. Injury No.1 as mentioned at point A in the PM report was sufficient to cause death in ordinary course of nature. The time since death was about 6 hours. Her opinion on Ex.PW16/A has been mentioned at point B and it was signed by her at point X. A sealed envelope containing blood on gauze of deceased was preserved and handed over to the IO along with the sample seal. The external ante mortem injuries as mentioned in postmortem report Ex.PW16/A are as under:
"1. Incised stab wound measuring of 1 x 0.7 cm present on (L) hypochondrium, obliquely placed, 26 cm below anteion axillary fold and 17 cm from midline. The margins are clean cut, lower lateral angle is more acute than the upper medial angle. The track of the wound is directed medially, downwards and backwards cutting through the skin, sub entaneous tissue of muscles of (L) lateral abdominal wall entering the abdominal cavity. The abdominal cavity contain about one litre blood stained peritoneal fluid and clots. Evidence of surgical repair seen in (LO) ips of intestines (jijunum), mesentry of small intestine. Peritoneum is congested. Intestinal loops and mesentry near surgical repair show extravasation of blood. Omentum is congested. Intestinal loops are congested, filled with gases. The depth of the track of the wound is 10 cm.
2. Incised wound measuring 6 x 0.1 cm present on (L) SC No. 64/10 State Vs. Zile Singh & Ors. 19/64 panelat region with depth of 1.3 cm forming an anterion flap of with 3 c.m. The wound is pour deep the lower limit is 7 cm above (L) ear and 15.5 c.m. above (L) eyebrow. The margins are clean cut. Extravasation of blood seen in scalp tissues. No bony injury seen orating to major blood vessel seen.
3. Incised stab wound measuring 2.3 x 0.1 cm present on the anterior aspect of (R) thigh, vertically placed, 30 cm below (R) anterior superior iliac spine with a tailing of lower end is seen. The margins are clean cut, upper angle is blunt and lower angle is acute. The direction of the track of the wound is backward, medially and downwards cutting through the skin, subcutaneous time and muscles of the thgh reaching upto the level of shaft of the (R) femur with no bony injury seen or no injury to major blood vessel seen. Extravasation of blood seen in the track of the wound. The depth of the wound is 8 cm."
27. PW17 deposed that on 11.05.2010 he was posted at PCR East Zone. On that day he was on duty on vehicle R-57 at Surya Nagar Red Light from 8 a.m. to 8 p.m. At about 10:21 p.m. a call was received about a quarrel at house no.263, gali no. 6, Jwala Nagar, Near Railway Colony. After receiving this information, he reached at the spot by PCR Van. There he found Rahim and Bilal in injured condition. It was also informed that a third person was also injured. He took Rahim and Bilal in his PCR Van to Dr. Hedgewar Hospital where they were admitted. He had also given a message to send another PCR Van at spot for the third injured. Injured persons Rahim and Bilal told him that Zile Singh and Shahid SC No. 64/10 State Vs. Zile Singh & Ors. 20/64 stabbed them with knife with whom they were having old rivalry. Injured Rahim was having injuries on his head, stomach and thigh and Bilal was having injury on his muscles.
28. PW18 deposed that on 20.05.2010 he was posted at PS Vivek Vihar as Inspector ATO. On that day on receipt of copy of DD No.8A regarding death of one Rahim, he alongwith ASI Abdul Wahid and Ct. Dharambir arrived at Mortuary GTB hospital. He prepared inquest papers, collectively exhibited as Ex.PW18/A and handed over to the doctor who conducted postmortem report on the body of Rahim. After postmortem the doctor handed over blood sample of deceased along with sample seal which was seized vide seizure memo Ex.PW4/A. Body was handed over to relative of deceased vide memo Ex.PW6/D. He also recorded statements of relatives about the identification of dead body and deposited the exhibits in the malkhana after returning to PS. He further deposed that on the same day on receipt of secret information accused Zile Singh was arrested from Shahdara Railway Station. He was interrogated. His arrest memo Ex.PW1/C, personal search memo Ex.PW1/D, disclosure statement Ex.PW1/B and pointing out memo Ex.PW1/E were prepared. On 08.06.2010 accused Saeed @ Shahid, who surrendered before the court, was arrested after permission of the SC No. 64/10 State Vs. Zile Singh & Ors. 21/64 court. He was interrogated. His arrest memo Ex.PW1/F, personal search memo Ex.PW1/G, disclosure statement Ex.PW1/H and pointing out memo Ex. PW1/1 were prepared. The weapon of offence could not be recovered despite of search. He also prepared site plan Ex.PW18/B and recorded statements of witnesses. He also correctly identified accused Saeed in the court.
29. PW19 deposed that he was posted as MHCM at PS Vivek Vihar. He had brought register no.19. Entry nos. 2914, 2915 and 2916, were made by HC Yudhvir Singh, the then MHCM in register no.19. He identified the handwriting and signatures of HC Yudhvir Singh and proved the copy of relevant entries as Ex.PW19/A, Ex.PW19/B and Ex.PW19/C.
30. After careful scrutiny of evidence on record, I am convinced with the arguments of Ld. Additional Public Prosecutor that PW3 Bilal deposed falsely in the court to the effect that he did not see the occurrence and he became unconscious after sustaining injury on his body. The reasons which support my decision are firstly that PW17 was the person who arrived at the spot of incident and took not only PW3 Bilal but also his brother deceased Rahim to Dr. Hedgewar Hospital in his PCR. He stated that PW Bilal and Rahim, since dead, told him that Zile Singh and Shahid stabbed them with knife with whom they were having old rivalry. In cross examination PW17 denied the SC No. 64/10 State Vs. Zile Singh & Ors. 22/64 suggestion of Ld. Defence Counsel that after sustaining of injuries both PW3 Bilal & Rahim became unconscious.
31. Secondly, PW10 is the doctor who examined injured PW3 Bilal vide MLC Ex.PW10/B. In his MLC he mentioned that patient i.e. Bilal was conscious and oriented at the time of examination. He was not cross examined by Ld. Defence Counsel on the point that PW3 Bilal was unconscious at the time when he medically examined him. Thus, the testimony of PW10 has gone unchallenged on this aspect.
32. Thirdly, PW13 who was the first IO deposed on this aspect that he arrived at Dr. Hedgewar Hospital and collected MLCs of PW3 Bilal and Rahim. Doctor had mentioned on the MLC of Rahim that he was not fit for statement and it was mentioned on the MLC of Bilal by doctor that he was fit for statement. He recorded statement of PW3 Bilal at the hospital. His statement was proved as Ex.PW13/A. He further deposed that he recorded the statement of PW3 Bilal truly and correctly and whatever was stated by him was recorded by him. There is no cross examination of PW13 by Ld. Defence Counsel on this aspect. It was not even suggested that he recorded statement of PW3 Bilal of his own. Therefore, the testimony of PW13 has gone unchallenged on this aspect.
33. Fourthly, in case Ahir Raja Khima v. State of SC No. 64/10 State Vs. Zile Singh & Ors. 23/64 Saurashtra, AIR 1956 SC 217, it was observed by Apex court that:
"The presumption that a person acts honestly apply so much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds, therefore, such an attitude can do neither credit to the Magistracy nor good to the public. It can only run down the prestige of the police administration."
Turning to the case in hand, I find that no ill will or hostility of PW13 against accused persons have been alleged or proved. Therefore, there is no reason to disbelieve the testimony of PW13 that he recorded the statement of PW3 Bilal correctly.
34. Fifthly, although statement made to police u/s 161 Cr.P.C. is ordinarily not admissible in evidence in view of Section 162(1) Cr.P.C. yet, as mentioned in proviso to Section 162(1) Cr.P.C. it can be used to contradict that testimony of a witness as law laid down in case, Bhagwan Dass v. State (NCT of Delhi), (2011) 6 SCC 396, wherein it has been observed that:
(v) The mother of the accused, Smt. Dhillo Devi stated before the police that her son (the accused) had told her that he had killed Seema. No doubt a statement to the police is ordinarily not admissible in evidence in view of Section 162(1) Cr.PC, but as mentioned in the proviso to Section 162(1) Cr.PC it can be used to contradict the testimony of a witness. Smt. Dhillo Devi also appeared as a witness before the trial court, and in her cross examination, she was confronted with her statement to the SC No. 64/10 State Vs. Zile Singh & Ors. 24/64 police to whom she had stated that her son (the accused) had told her that he had killed Seema. On being so confronted with her statement to the police she denied that she had made such statement.
We are of the opinion that the statement of Smt. Dhillo Devi to the police can be taken into consideration in view of the proviso to Section 162(1) Cr.PC, and her subsequent denial in court is not believable because she obviously had afterthoughts and wanted to save her son (the accused) from punishment. In fact in her statement to the police she had stated that the dead body of Seema was removed from the bed and placed on the floor. When she was confronted with this statement in the court she denied that she had made such statement before the police. We are of the opinion that her statement to the police can be taken into consideration in view of the proviso of Section 162(1) Cr.PC."
(Emphasis supplied)
35. Lastly, the evidence on record almost support the statement Ex.PW13/A of PW3 Bilal that was made to the police. In his cross examination conducted by Ld. Additional Public Prosecutor he admitted that he sustained injuries on his left shoulder, left hand behind the palm. Accused Saeed is his relative. Deceased Rahim was his elder brother. Place of incident was situated at a distance of 10 ft. from his house. He was present at his house at the time of occurrence and there was a quarrel outside his house. Even in his examination in chief he did not depose that he was unable to identify the accused persons. Instead he stated as under:
"I cannot identify any of the accused person present SC No. 64/10 State Vs. Zile Singh & Ors. 25/64 in the court today who were involved to kill his brother Rahim and also caused injuries upon him."
This may also be interpreted that due to reasons best known to him he was prevented to identify the assailants who killed his brother and caused injuries on him. This is the interpretation which finds support by the evidence on record.
36. My attention goes to a case Surinder Singh v. State of Haryana, (P&H)(DB), 2009(4) R.C.R.(Criminal) 421, the P & H High court observed:
"24. We are pained to record that a number of prosecution witnesses turned hostile. These prosecution witnesses have made statements before the Investigating Officer that they are the eye witnesses of the occurrence and of extra judicial confession. It was in their presence that incriminating material against the appellant was collected in the course of investigation.***
29. It is very common now-a-days those witnesses, while supporting the prosecution version at the investigation stage of the case by giving a version there, take a complete U-turn at the trial by not supporting the prosecution, thereby making the case to fall for want of evidence. This practice has become a menace in the criminal judicial system.
30. The Hon'ble Supreme Court had dealt very heavily in a case of a similar nature in "Best Bakery Case", where the star witness Zahira at different stages changed her stand and departed from her earlier statements. In that case, vide order dated 12.4.2004, the Hon'ble Supreme Court in Zahira Habibulla Sheikh (1) v. State of Gujrat (2004)4 SCC 158 ordered retrial of the case and also SC No. 64/10 State Vs. Zile Singh & Ors. 26/64 gave options to the investigating agency or those supervising the investigation, to act in terms of Section 173 (8) of the Code of Criminal Procedure as the circumstances seem to or may so warranted.***
31. Taking up the aforesaid inquiry report, the Hon'ble Supreme Court in Zahira Habibullah Sheikh (5) v.
State of Gujrat (2006) 3 SCC 374 observed as follows :
"Serious questions arise as to the role played by witnesses who changed their versions more frequently than chameleons. Zahira's role in the whole case is an eye- opener for all concerned with the administration of criminal justice. As highlighted at the threshold the criminal justice system is likely to be affected if persons like Zahira are to be left unpunished."*** As has been noticed in the earlier case (reported in 2004 (4) SCC 158), the role to be played by Courts, witnesses, investigating officers, public prosecutors has to be focused, more particularly when eyebrows are raised about their roles.
33. The Hon'ble Supreme Court by holding her guilty of perjury concluded by sentencing Zahira to undergo simple imprisonment for one year and to pay a fine of Rs. 50,000/- and in case of default of payment within two months, she was ordered to suffer further imprisonment of one year.
34. In an another case Mahila Vinod Kumari v. State of Madhya Pradesh, (2008) 8 SCC 34 where the petitioner had lodged FIR against two persons on the allegations of having committing rape and it was only on the basis of the same that charge-sheet was filed against them and they were put to trial. During trial, the prosecutrix resiled from her statement made during the investigation and even denied lodging of the FIR or having had given any statement to the police. The Hon'ble Supreme Court observed as under :
"The purpose of enacting Section 344 Cr.P.C. corresponding to Section 479-A of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the Old Code') appears to be SC No. 64/10 State Vs. Zile Singh & Ors. 27/64 further arm the Court with a weapon to deal with more flagrant cases and not to take away the weapon already in its possession. The object of the legislature underlying enactment of the provision is that the evil of perjury and fabrication of evidence has to be eradicated and can be better achieved now as it is open to the Courts to take recourse to Section 340(1) (corresponding to Section 476 of the Old Code) in cases in which they are failed to take action under Section 344 Cr.P.C."
"This Section introduces an additional alternative procedure to punish perjury by the very Court before which it is committed in place of old Section 479 A which did not have the desired effect to eradicate the evils of perjury."
"For exercising the powers under S. 344 of the Code, the Court at the time of delivery of judgment or final order must at the first instance express an opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence. The second condition is that the Court must come to the conclusion that in the interests of justice the witness concerned should be punished summarily by it for the offence which appears to have been committed by the witness. And the third condition is that before commencing the summary trial for punishment the witness must be given reasonable opportunity of showing cause why he should not be so punished. All these conditions are mandatory. The object of the provision is to deal with the evil of perjury in a summary way. "
35. The Hon'ble Supreme Court held that this provision should be used effectively and frequently to stop the menace of perjury, which has bearing on alarming rise. The apex Court held as under :
"The evil of perjury has assumed alarming propositions in cases depending on oral evidence and in order to deal with the menace effectively it is desirable for the courts to use the provision more effectively and frequently than it is presently done."
36. We are pained to see that the trial Courts willingly or unwillingly are not taking action against hostile witnesses.
SC No. 64/10 State Vs. Zile Singh & Ors. 28/64 A number of witnesses who should be deposing as per their statements given under Section 161 of the Code of Criminal Procedure and should be supporting the prosecution turn hostile. The trial Courts cannot be mute spectators to the statement of these witnesses, when the witnesses are intentionally giving false evidence (a statement to help the accused). Action should be taken under the relevant provisions of law against such witnesses, so that the administration of criminal justice does not suffer.
37. In a case before this Court (Punjab and Haryana High Court) Krishan and others v. State of Haryana, 2005(2) RCR (Criminal) 109 in case under Section 302 IPC, for the murder of Balraj, the law was set into motion on the registration of the FIR by PW8 Bijender. At the trial, Bijender (PW8) supported the case of the prosecution in the cross-examination. His cross- examination was got deferred by the defence counsel on the ground of his illness. When cross-examined on the subsequent date, he resiled from his statement Exhibit PB on the basis of which FIR was registered as well as from the statement recorded in the Court on the previous date. He stated that police had obtained his signatures on blank paper and, therefore, he had denied the contents of his statement, Exhibit PB. He stated that he made the statement in the Court as PW8 on the previous date under the pressure of police.
38. Before we conclude, we wish to reflect in the manner the prosecution witnesses have behaved in order to circumvent the proceedings with an ulterior motive to help the accused. Five prosecution witnesses, namely Yad Ram, PW1, Jag Ram, PW2, Hari Chand, PW6, and Roshan Lal, PW7, declined to support the case of the prosecution. All of them were declared hostile.***
41. From the facts, it is evident that investigation was conducted properly. No one has caused any aspersion or pleaded that the case was not properly investigated. The totality of the circumstances indicate and establish that Yad Ram, PW1, Jag Ram, PW2 and Roshan Lal, PW7 resiled SC No. 64/10 State Vs. Zile Singh & Ors. 29/64 from their earlier stand with a view to help the accused- appellant ultimately subverting the process of justice delivery system.
44. Consequently, we issue notice to PWs No. 1 to 3 and 6 and 7 who have tried to save the accused-appellant from legal punishment by resiling from their statements and denying their participation during the course of investigation.
45. Hence, a show cause notice is issued to PWs I to 3 and 6 and 7 to explain as to why a complaint be not lodged against them for committing the offence of perjury. All the PWs, named above, are directed to appear before this Court on 5.10.2009."
37. In view of the principles of law laid down in case Surinder Singh v. State of Haryana, (supra) I am of the view that present case is the proper case for taking legal action against PW3 Bilal for making false statement on oath in the court. My decision in this regard is based on the ground that PW3 Bilal has deposed falsely as discussed above. Secondly, it is in the interest of justice that PW3 should be punished for making false statement in the court on oath. Let show cause notice be issued to him showing cause as to why he should not be punished for making false statement on oath in the court.
38. My attention goes a case of State v. V. Sejappa, (Karnataka), 2008 Cri.L.J. 3312, wherein the Karnataka High Court observed:
"27. As far as the acceptance of evidence of the hostile SC No. 64/10 State Vs. Zile Singh & Ors. 30/64 witness is concerned, it is a well settled law that part of the hostile witness which goes well with the prosecution case can be accepted and rejecting only that portion of the evidence which does not support the prosecution case. Therefore applying such yardstick in the instant case, it cannot be said by any stretch of imagination that the evidence of P W. 1 has to be ignored in totality merely because of a witness not supporting the prosecution case in certain minor aspects which do not have any bearing on the core of the prosecution case. ***Therefore, on the very same analogy of accepting the evidence of a hostile witness to the extent that it supports the prosecution case, the testimony of P.W. 2 also will have to be accepted in regard to that part of the evidence, which supports the prosecution case."
39. As held in the case of State v. V. Sejappa, (supra), that portion of the hostile witness can be used with care and caution which supports the prosecution case provided it is corroborated by other evidence of the prosecution. Therefore, in the present case those portions of the testimony of PW3 can be considered which find support by other evidence of the prosecution case.
40. It will be appropriate to reproduce relevant portions of the statement of PW17 which is as under:
"After receiving this information, I had reached at the spot by PCR Van. There I found Rahim and Bilal in injured condition. It was also informed that a third person was also injured. I took Rahim and Bilal in my PCR Van to Dr. Hedgewar Hospital where they were admitted. I had also given a message to send another PCR Van at spot for the third injured. Injured persons Rahim and Bilal told me that Zile Singh and Shahid stabbed them with knife with whom they were having old rivalry. Injured Rahim was having SC No. 64/10 State Vs. Zile Singh & Ors. 31/64 injuries on his head, stomach and thigh and Bilal was having injury on his muscles.My statement was recorded by IO"
41. In case of Ramawati Devi v. State of Bihar, (1983(1) SCC 211), it was observed by Supreme Court as follows :
"7***. A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, becomes admissible under Section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case.
42. In case of State of Punjab v. Sukhdev Raj , (P&H) (DB)., 2008(4) R.C.R.(Criminal) 321, it was observed:
21. Now coming to the evidentiary value of the dying declaration, it was observed in case Smt. Laxmi v. Om Parkash and others, 2001(3) RCR(Crl.) 358, as under :
"Nemo moriturus praesumitur mentire - No one at the point of death is presumed to lie." "A man will not meet his Maker with a lie in his mouth" - is the philosophy of law underlying admittance in evidence of dying declaration. "A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of SC No. 64/10 State Vs. Zile Singh & Ors. 32/64 the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witness testifies to the same passes the test of careful scrutiny of the Courts, it becomes a very important and reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself can be sufficient for recording conviction even without looking for any corroboration" - is the statement of law summed up by this Court in Kundula Bala Subrahmanyam v. State of A.P., 1993(2)(sic) SC 684. The Court added - such a statement, called the dying declaration, is relevant and admissible in evidence provided it has been made by the deceased while in a fit mental condition."
22. Again while examining the evidentiary value of the dying declaration, the Apex Court in a recent judgment of Muthu Kutty and another v. State by Inspector of Police, Tamil Nadu, 2005(1) RCR(Crl.) 639 : 2005(1) Apex Criminal 287 (SC), in the following terms :
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(v) Where the, deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected.
SC No. 64/10 State Vs. Zile Singh & Ors. 33/64
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does contain the details, as to occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.
(ix) Normally, the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted."
43. In case of K. Ramachandra Reddy v. Public Prosecutor, (SC),1976 A.I.R. (SC) 1994: 1976 Cri.L.J. 1548 the Apex Court observed:
6. The accused pleaded innocence and averred that they had been falsely implicated due to enmity. Thus it would appear that the conviction of the accused depends entirely on the reliability of the dying declaration Ext. P-2. The dying declaration is undoubtedly admissible under Section 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it.
While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of SC No. 64/10 State Vs. Zile Singh & Ors. 34/64 death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. The law on the subject has been clearly and explicitly enunciated by this Court in Khushal Rao v. State of Bombay, 1958 SCR 552 where the Court observed as follows:
"On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it can not be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, SC No. 64/10 State Vs. Zile Singh & Ors. 35/64 the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross- examination."
The above observations made by this Court were fully endorsed by a Bench of five Judges of this Court in Harbans Singh v. State of Punjab 1962 Supp (1) SCR 104. In a recent decision of this Court in Tapinder Singh v. State of Punjab, (1971) 1 SCR 599 relying upon the earlier decision referred to above, this Court observed as follows:
"It is true that a dying declaration is not a deposition in court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross- examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinise all the relevant attendant circumstances."
44. In view of the principles of law laid down in SC No. 64/10 State Vs. Zile Singh & Ors. 36/64 cases, Ramawati Devi v. State of Bihar, (supra) State of Punjab v. Sukhdev Raj, (supra), and K. Ramachandra Reddy v. Public Prosecutor, (supra), the portions of testimony produced above come in the category of dying declaration of deceased Rahim as it was his last statement before his death. It was made by him when he was conscious. This fact stands corroborated by MLC of deceased as it has been written therein that at the time of his statement he was conscious and oriented. No ill will or hostility of PW17 with accused has neither been alleged nor proved.
45. It has been argued on behalf of Ld. Defence Counsel that testimony of PW17 is not reliable and trustworthy as his testimony has not been corroborated by any of the prosecution witnesses. Besides, PW1 ASI Sarfuddin & PW2 Ct. Deepak were also present at the spot soon after the occurrence and neither of them deposed that either deceased Rahim or injured Bilal told them that stab injuries were caused on them by accused Zile Singh & Shahid. Moreover, even if it is presumed for the sake of arguments that they told names of Zile Singh and Shahid as assailants, identities of Zile Singh & Shahid have not been established by the prosecution during the trial. In addition to, PW17 has improved his statement as neither he stated these facts that injured or deceased were SC No. 64/10 State Vs. Zile Singh & Ors. 37/64 stabbed by Zile Singh & Shahid nor he stated these facts to the IO in his statement recorded u/s 161 Cr.P.C.
46. In support of his arguments, Ld. Defence Counsel relied on a case Waikhom Yaima Singh v. State of Manipur, 2011 Cri. L.J. 2673 wherein the Supreme Court observed that:
"15. There can be no dispute that dying declaration can be the sole basis for conviction, however, such a dying declaration has to be proved to be wholly reliable, voluntary, and truthful and further that the maker thereof must be in a fit medical condition to make it. The oral dying declaration is a weak kind of evidence, where the exact words uttered by the deceased are not available, particularly because of the failure of memory of the witnesses who are said to have heard it. In the present case also, the exact words are not available. They differ from witness to witness. Some witnesses say about the name of the village of the appellant having been uttered by the deceased and some others do not. Further, Dr. Ningombam Shyamjai Singh (PW-12) was also not cross- examined by the Public Prosecutor in this case about the medical condition of the deceased and further fact as to whether he was in a fit condition to make any statement. Last, but not the least, though the witnesses claimed to have reported to L. Ningthouren Singh (PW-14) about such dying declaration and the name of the assailant, there is no reflection of the name in the FIR."
47. Ld. Defence Counsel further relied on a case Gurcharan & etc. etc. v. State, 2010 Cri. L.J. 3339, wherein the Delhi High Court observed that:
"60. In the decision reported as MANU/SC/8064/2006 : (3) SCC 161 : AIR 2006 SC 1319 : 2006 Cri LJ 1629 P. Mani v. State of Tamil Nadu the Supreme Court cautioned that where a motive surfaces for false implication in a dying SC No. 64/10 State Vs. Zile Singh & Ors. 38/64 declaration, the eyebrows of the Court should raise and should not fall unless independent corroboration is found to a dying declaration. It was highlighted that where motive for false implication is found it would be unsafe to sustain a conviction on an uncorroborated dying declaration."
48. Ld. Defence Counsel further relied on a case Chacko v. State of Kerela, 2003 Cri. L.J. 441 wherein the Supreme Court observed that:
"3. Having heard learned counsel for the parties and perused the records, we find it difficult to accept the prosecution case based on the dying declaration allegedly made by the deceased. As pointed out by the learned counsel for the appellant, it is very difficult to accept the prosecution case that the deceased who was of about 70 years, and had suffered 80% burns could make a detailed dying declaration after 8 to 9 hours of the burning giving minute particulars as to the motive, the manner in which she suffered the injuries. This, in our opinion, itself creates a doubt in our mind apart as to the genuineness of the declaration (See: Munnu Raja and another v. State of Madhya Pradesh (AIR 1976 SC 2199, para 6)). Further in the absence of any certificate by a competent doctor as to the mental and physical condition of the deceased to make such a dying declaration, we think it is not safe to rely on the same. We are aware of the judicial pronouncements of this Court that it is not always necessary that a dying declaration should be certified by a doctor before reliance could be placed on the same. But then in the absence of any such certificate, the Courts should be satisfied that from the material on record it is safe to place reliance on such uncertified declaration. (See : Ram Bai v. State of Chhatisgarh (2002 (8) SCC 83)). In the instant case it is not as if the doctor was not available. As a matter of fact, PW-3 who treated the deceased in the first instance was available at the time when the deceased allegedly made the dying declaration, still we find he has not either given a SC No. 64/10 State Vs. Zile Singh & Ors. 39/64 certificate as to the condition of the deceased nor has he attested the said document. That apart, a perusal of the dying declaration as per Ex.P-4 shows that the contents of the documents are so arranged so as to accommodate the space which is above the thumb impression which we think is not a normal way of recording a statement if the same was genuine. This is also a ground to suspect the genuineness of the document. Then again as complained by the learned counsel for the appellant, we notice that on 28.07.1996 at about 5.30 pm the Police had known that it was the appellant who had committed this crime but in the inquest report which was drawn on 29.07.1996 in Column No.12 corresponding to name of the suspect, it is specifically mentioned 'No' meaning thereby the officer who drew this document did not have the knowledge that it is the appellant who had caused the injury. This is the very same person (PW-5) who has scribed Ex. P-4. The above factor coupled with the manner in which the incident has been recorded in Ex. P-4 certainly creates a grave doubt in our mind as to the genuineness of the dying declaration Ex. P-4. The fact that PW-4, the doctor, had recorded that "patient conscious, talking" in the wound certificate by itself would not in any manner further the prosecution case as to the condition of the patient to make the dying declaration nor does his oral evidence as also that of the investigating officer made in the Court for the first time would in any manner improve the prosecution case."
49. Ld. Defence Counsel further relied on a case Burakhbee v. State of Maharashtra, 2006 Cri. L.J. 3128, wherein the Bombay High Court observed that:
"9. It would be noted that proof of recording of dying declaration is one thing and evidentiary value and truthfulness of the dying declaration is another matter. Before a person could be convicted on the basis of dying declaration/(s), written or oral, it is not sufficient only to see that the dying declaration/(s) has/have been correctly SC No. 64/10 State Vs. Zile Singh & Ors. 40/64 recorded and they are recorded as per the say of the declarant. Due compliance with the procedure would lead one to conclude that the dying declaration is the true version of the declarant. This, however, is not end of the matter. The dying declaration, before it can form basis for conviction, it must be found to be inspiring confidence. On perusal of the two dying declarations (Exhibit 18 and Exhibit 20 in this case) and juxta-positioning it with other circumstances on record, in this case we are of the view that the conviction on the basis of these dying declarations in the present case cannot be sustained."
50 Ld. Defence Counsel further relied on a case S.M. Malik & Ors. v. State, 47 (1992) DLT 524, wherein the Delhi High Court observed that:
"30. I have given my thoughtful considerations to these submissions and am clearly of the view that no reliance can be placed upon this statement. A dying declaration, which has been recorded by a competent Magistrate in the proper manner that is to say in the form of questions and answers and as far as possible in the words of the maker of declaration stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human money and human character. The law is also well settled that the person who records the statement must be satisfied that the deceased was in a fit state of mind of making the statement and this must be reflected in the writing prepared at the time of the recording of the dying declaration. It is also necessary that before recording the dying declaration opinion of the doctor must be obtained as to whether the person concerned is fit to make a statement or not."
51. Ld. Defence Counsel further relied on a case State v. Sushila, 2011 III AD (Delhi) 265, wherein the Delhi High Court observed that:
SC No. 64/10 State Vs. Zile Singh & Ors. 41/64 "20. If there are multiple dying declarations then all of them should be consistent. In case there is variation in different dying declarations the contradictions/variations must be explained and the court must be satisfied about the true and voluntary nature of the dying declaration relied to base conviction of the accused. Whenever there is any doubt, the dying declaration cannot form the basis of conviction of the accused without corroboration."
52. Ld. Defence Counsel further relied on a case Satish Kumar v. State, 1996 Cri. L.J. 265 wherein the Delhi High Court observed that:
"32. The question which arises for consideration is whether this Court can place any reliance on the statements of mother, sister and brother of the deceased that Suresh, after being injured, had named the appellant as his assailant. PW-1, mother, had, in her examination-in-chief, categorically stated that as she reached the spot, she found her injured son becoming unconscious. When injured was brought to the hospital, he was found unfit to give the statement, i.e. only after 45 minutes of the occurrence. He was confused and disoriented. There is no mention in the first statement made by Krishna which is the basis of the F.I.R. that any such dying declaration had been made by the deceased after the occurrence in presence of Sushil Kumar and Rekha or in her presence at the spot or on the way to the hospital or in the hospital. In view of these facts, it becomes reasonably doubtful to give any credence to this part of the prosecution case that the appellant was named as assailant by the deceased in presence of these close relations."
53. Ld. Defence Counsel further relied on a case Sheikh Mehboob @ Hetak & Ors. v. State of Maharashtra, 2005 (1) JCC 511 wherein the Supreme Court observed that:
SC No. 64/10 State Vs. Zile Singh & Ors. 42/64 "11. The other limb of the prosecution story (perhaps bearing greater weight) is the dying declaration (Ex. 49).
We may ignore the usual contentions urged by the defence to discredit the dying declaration. The law as to the test for credibility of a dying declaration has been laid down by a Constitution Bench in Laxman v. State of Maharashtra 2002 (3) JCC 1494 (2002) 6 SCC 710. We may, therefore, reject the contentions of the appellants that the certification as to mental fitness of the victim was not proper or that it was written in a particular language, in a particular fashion, and such like."
54. Ld. Defence Counsel further relied on a case Harjinder Singh @ Bhola v. State of Punjab, 2004(2) JCC 1191 wherein the Supreme Court observed that:
"15. The foregoing discussion leads us to conclude that the Trial Court and the High Court did not consider certain material aspects apparent from the evidence and there was almost a mechanical acceptance of the evidence of the two chance witnesses whose evidence should have been evaluated with greater care and caution. As pointed out by this court in Satbir Vs. Surat Singh & Anr. [1997 (4) SCC 192], a "cautious and close scrutiny" of the evidence of chance witnesses should inform the approach of the Court. In these circumstances, this Court need not feel bound to accept the findings. The overall picture we get on a critical examination of the prosecution evidence is that PWs 3 & 4 were introduced as eye-witnesses only after the dead body was found."
55. On the other hand Ld. Addl. Public Prosecutor relied on a case Vishram and Others vs. State of M.P., AIR 1973 SC 250, wherein the Supreme Court held that:
"PW-1 in first information report itself has mentioned about the earlier time declaration and has also given necessary SC No. 64/10 State Vs. Zile Singh & Ors. 43/64 details. Nothing significant has been elicited in his cross- examination. Likewise, PW-5 deposed that she also reacted the place of occurrence and found Chander Shekhar lying unconscious and that her husband Kamal Kishore was conscious and on being asked, he told her that the sixth appellants attacked him and beat him. Thereafter Kamal Kishore was taken to hospital. In cross-examination she has affirmed the same and her evidence does not suffer from any infirmities. The doctor who examined Kamal Kishore, on being cross-examined, no doubt stated that ordinarily injuries found on the head of Kamal Kishore could cause unconsciousness but it could not possibly be said that they could have caused immediate unconsciousness. Relying on this admission, the Ld. Counsel submitted that it is not safe to rely on the oral dying declarations. It must be noted that the doctor did not categorically state that Kamal Kishore would have been unconscious, immediately after receipt of the injuries and could not have been in a position even to speak that much. We have carefully examined the evidence of PW-1 and PW-5 and also the reasons given by both the courts below and we are satisfied that no interference is called for. The appeal is accordingly dismissed."
56. Ld. Addl. Public Prosecutor further relied on a case Usha and others vs. State of Orrisa, AIR 1980 SC 559, wherein the Supreme Court observed that:
"8. *** Thus, if the statement of a dying person passes the test of careful scrutiny applied by the courts, if becomes a most reliable piece of evidence which does not require any corroboration. Suffice it to say that it is now well established by a long course of decisions of this court that although a dying declaration should be carefully scrutinized but if after perusal of the same, the court is satisfied that the dying declaration is free from any effort to prompt the deceased to make statement and is coherent and consistent, there is no legal impediment in founding the conviction on such a dying declaration even if SC No. 64/10 State Vs. Zile Singh & Ors. 44/64 there is no corroboration."
57. I have considered the dying declaration made by deceased Rahim before PW-17 Ajeet Singh, reproduced here in above in the light of principles of law laid down in above referred decisions relied on by Ld. Defence Counsel and Ld. Additional Public Prosecutor and other decisions on the subject and I come to the conclusion that oral dying declaration made by deceased Rahim does not suffer from any legal infirmities. The reasons which support my decision are firstly that in the facts and circumstances of the case, it was PW-17 who remained in contact with the deceased Rahim as he had taken him after sustaining of injuries at the spot to the hospital in his PCR van. Thus at the relevant time he was only PW-17 to whom deceased Rahim could narrated the incident and name of assailants.
58. Secondly, arguments of Ld. Defence Counsel that statements of PW-1 Sarfuddin and PW-2 Ct. Deepak, who arrived at the spot soon after the occurrence, are silent about telling of name of assailants to them by the deceased, will not provide any benefit to the accused persons as in the facts and circumstances of the case, the deceased did not have opportunity to tell the name of assailants to them. PW-2 Ct. Deepak in his cross- examination stated that HC Sarfuddin (PW-1) did not record any statement of injured at spot in his presence.
SC No. 64/10 State Vs. Zile Singh & Ors. 45/64
59. Thirdly, PW-10 proved MLC of deceased Rahim as EX.PW10/A and inter alia deposed that patient was conscious and oriented at the time of examination. There is no cross-examination of PW-10 on the point that when he examined deceased Rahim, he was unconscious. Even it was not suggested that deceased Rahim was not conscious and oriented. There is no evidence on record which could have established that he sustained that kind of injuries which made him unconscious immediately after sustaining those injuries.
60. Fourthly, the testimony of PW-17 who stated that deceased Rahim told him the name of assailants can be relied upon without corroboration by any medical opinion in this regard. My decision finds support in this regard by principles of law laid down in Muthu Kutty and another v. State by Inspector of Police, Tamil Nadu, (supra) wherein it was held that normally, the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
61. Fifthly, the principles of law laid down in case Vishram and Others vs. State of M.P.,(supra), relied on by Ld. Additional Public Prosecutor also support my decision SC No. 64/10 State Vs. Zile Singh & Ors. 46/64 as in the like circumstances the dying declaration was held as reliable.
62. Sixthly, the dying declaration of deceased Rahim finds support by other evidence on record, particularly by the statement EX.PW13/A of PW-3 Bilal wherein it has been, inter alia, mentioned that accused Zile stabbed his brother deceased Rahim and Shahid attacked on him with knife Ex.PW13/A. This can be taken into consideration in view of principles of law laid down in case Bhagwan Dass v. State (NCT of Delhi), (supra), wherein it has been observed that:
"No doubt Smt. Dhillo Devi was declared hostile by the prosecution as she resiled from her earlier statement to the police. However, as observed in State vs. Ram Prasad Mishra & Anr.:
"The evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but can be subjected to close scrutiny and the portion of the evidence which is consistent with the case of the prosecution or defence may be accepted."
Similarly in Sheikh Zakir vs. State of Bihar AIR 1983 SC 911 this Court held:
"It is not quiet strange that some witnesses do turn hostile but that by itself would not prevent a court from finding an accused guilty if there is otherwise acceptable evidence in support of the conviction."
In Himanshu alias Chintu vs. State (NCT of Delhi), (2011) 2 SCC 36 this Court held that the dependable part of the evidence of a hostile witness can be relied on.
Thus it is the duty of the Court to separate the grain from the chaff, and the maxim "falsus in uno falsus in omnibus" has no application in India vide Nisar Alli vs. SC No. 64/10 State Vs. Zile Singh & Ors. 47/64 The State of Uttar Pradesh AIR 1957 SC 366. In the present case we are of the opinion that Smt. Dhillo Devi denied her earlier statement from the police because she wanted to save her son. Hence we accept her statement to the police and reject her statement in court. The defence has not shown that the police had any enmity with the accused, or had some other reason to falsely implicate him." (Emphasis supplied)
63. Seventhly, the arguments of Ld. Defence Counsel that PW-17 HC Ajeet Singh made his statement against the accused persons due to ulterior motives is not convincing. Neither any ulterior motives has been alleged nor proved on record.
64. Eighthly, arguments of Ld. Defence Counsel that PW-17 Ajeet Singh made embellishment in his statement and did not tell the name of assailants in the statement to the IO is not convincing. In the statement of HC Ajeet recorded by IO u/s 161 Cr.P.C., EX.PW17/DA it has been stated that he got both the injured admitted in Dr. Hedgewar Hospital and they were in the care of duty HC Bhagwat no. 1217/E. It has been mentioned as under:
"Inko chaku Zile va Shahid naam ke ladko ne maara hai. Jinka purana jhagda hai jo badmash type ke ladke hain".
(These have been stabbed by boys named, Zile and Shahid due to old rivalry and those boys are of bad character.) Thus the evidence has established that PW-17 disclosed the names to the IO at the time of recording of his statement.
SC No. 64/10 State Vs. Zile Singh & Ors. 48/64
65. Ninethly, Ld. Defence Counsel relied on a case State of Rajasthan, etc. vs. Bhanwar Singh and Ors, 2004 (3) RCR (Criminal) 335, wherein the accused was acquitted on the grounds inter alia that there was delay of about 22 days in recording of statement of PW. He argued that there was delay of about three months in recording of statement EX.PW17/DA of PW-17 by IO in the present case and that has made his testimony unbelievable. This argument of Ld. Defence Counsel is not convincing as names of accused Zile Singh and Shahid were even mentioned by PW-Bilal in his statement EX.PW13/A on the basis of which names of accused Zile and Shahid were mentioned in the FIR, copy of which is EX.PW7/B, which was recorded on the same night of 19 and 20.5.2010. Besides, in that case the facts of the case and evidence was different. Therefore this will not provide any benefit to accused persons namely Zile Singh and Shahid.
66. Tenthly, the testimony of DW1 to the effect that her husband was lifted from house of her parents on 20.5.2010 is not convincing for the reasons that she did not make any complaint either to the senior officer of the police or to the court regarding lifting of her husband for his illegal detention by the police. Conversely her statement has established that Zile Singh was present at the place of occurrence at the time of occurrence. The SC No. 64/10 State Vs. Zile Singh & Ors. 49/64 injuries on the body of Zile Singh has further established his presence and involvement in the offences alleged and proved against him. The argument of Defence Counsel that he sustained injuries on 20.5.2010 by beating of police officials is not convincing as PW11 deposed that there was information of sustaining injuries by three persons. PW17 also corroborated this aspect of the evidence of PW11. Testimony of DW2 will not provide any benefit to accused Zile Singh for the same reasons. Testimonies of DW3 and DW6 regarding Shahid will not provide any benefit to accused Shahid as they failed to make complaint regarding false involvement of accused Shahid or regarding their wrongful detention by the police.
67. Lastly, the principles of law laid down in cases relied on by Ld. Defence Counsel namely Waikhom Yaima Singh v. State of Manipur, (supra), Gurcharan v. State, (supra), Chacko v. State of Kerela, (supra), Burakhbee v. State of Maharashtra, (supra), S.M. Malik and Ors. v. State, (supra), State v. Sushila, (supra), Satish Kumar v. State, (supra), Sheikh Mehboob v. Hetak and Ors., (supra), and Harjinder Singh @ Bhola v. State of Punjab, (supra), will not provide any benefit to accused Zile Singh and Shahid as the facts of the present case and those cases are different. However, the general principles laid down in those cases for analysing the admissibility of dying declaration have SC No. 64/10 State Vs. Zile Singh & Ors. 50/64 been considered.
68. In view of above reasons and discussions it is held that statement of PW-17 is reliable and trustworthy and the dying declaration can be acted upon in the present case as it does not suffer from any infirmities.
69. It has also been argued on behalf of Ld. Defence Counsel that defence witnesses and prosecution witnesses stand on the same footing and their evidentiary value is the same.
70. In support of his arguments, Ld. Defence Counsel further relied on a case Pradeep Saini & Anr. v. State, 2010 IV AD (Delhi) 232, wherein the Delhi High Court observed that:
"51. Depositions of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, are oral evidence in the case and hence the scrutiny thereof has to be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed. As observed by Supreme Court in the decision reported as Dudh Nath Pandey Vs. State of UP AIR 1981 SC 911:-
".....Defence witnesses are entitled to equal treatment with those of the prosecution; and courts ought to overcome their traditional instinctive disbelief in defence witnesses......"
71. Arguments of Ld. Defence Counsel on this aspect is convincing as evidenciary value of prosecution SC No. 64/10 State Vs. Zile Singh & Ors. 51/64 witnesses and defence witnesses is equal.
72. Ld. Defence Counsel further argued that prosecution has even failed to establish the motive of accused persons for commission of murder of deceased Rahim and causing injuries on the body of injured Bilal.
73. In support of his arguments, Ld. Defence Counsel relied on a case Rudramappa Jainpur & Ors. v. State of Karnataka, 2004 (2) JCC 1172, wherein the Supreme Court observed that:
"22. It is true that when such a question arises for consideration by the Court, no judgment can be cited as a precedent howsoever similar the facts may be. As was observed by this Court in Pandurang and others v. State of Haryana : AIR 1955 SC 216 each case must rest on its own facts and the mere similarity of the facts in one case cannot be used to determine a conclusion of fact in another. In the instant case, we find that the alleged motive for the commission of the offence was rather flimsy. Members of the prosecution party as well as the members of the defence party were related to each other and so were most of the witnesses. It is also the consistent case of the prosecution that till 15 days before the occurrence their relationship was cordial. Only two weeks before the occurrence the son of the deceased had assaulted the younger brother of A-1 who had tried to dismantle the public tap in the village. This could hardly provide a motive for committing the murder of the deceased."
74. On the other hand it has been argued on behalf of Ld. Addl. Public Prosecutor that prosecution has proved the motive of commission of crime and that was old rivalry on money transaction.
SC No. 64/10 State Vs. Zile Singh & Ors. 52/64
75. On perusal of file and particularly statement PW-13/A of PW3-Bilal and statement of PW-17, I find that it has been established on record that there was old rivalry between the deceased and accused Zile Singh and Shahid therefore, this argument of Ld. Defence Counsel is not convincing.
76. The Ld. Defence Counsel further argued that there are many contradictions in the statements of police witnesses which have made their statements unreliable and those have created doubt about the truthfulness of the prosecution case.
77. Ld. Defence Counsel relied on a case Yunus (Mohd.) v. State (Delhi), 2011 (9) AD (Delhi) 479, wherein the Delhi High Court observed that:
"18. It is apparent that her statement (Exhibit PW-7/DA) recorded under Section 161 CrPC is at complete variance with her testimony in court, she had taken the name of Chanda's niece as Bibia, whereas in Exhibit PW-7/DA, she has referred to her as Baby. Secondly, in court, she has testified that the accused persons rang the door bell, whereas in Exhibit PW-7/DA, she has stated that the accused knocked on the door. Thirdly, in Exhibit PW-7/DA, she has stated that the two persons forcibly entered the room, whereas she has not so stated in court. Fourthly, she stated in Exhibit PW-7/DA that she had gone to Baby's house twice, whereas in her testimony before court, she has stated that she went to Baby's house once. Fifthly, she has stated in Exhibit PW-7/DA that from Baby's house, she had gone to her father's house at Laxmi Nagar, whereas in her testimony before court, she has stated that she had gone to her sister's house at Shakarpur. Apart from these SC No. 64/10 State Vs. Zile Singh & Ors. 53/64 specific variations, the entire story, as appearing in Exhibit PW-7/DA and in her testimony before court, is completely different.
19. In view of the foregoing, not much, if at all any, credence can be placed on the testimony of PW-7 (Shakuntala Devi)."
78. On the other hand it has been argued on behalf of Ld. Addl. Public Prosecutor that there is no contradiction on material point and minor contradictions can be ignored as they are bound to take place.
79. My attention goes to a a case of Appabhai and another v. State of Gujarat, AIR 1988 SC 696, the Apex Court observed:
"The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
80. On perusal of file, I find that there are some SC No. 64/10 State Vs. Zile Singh & Ors. 54/64 minor contradictions in the testimony of prosecution witnesses. It has to be seen if minor contradictions and the points discussed here in above have created any doubt about the genuineness of the occurrence under adjudication. After carefully scrutinizing the evidence available on record, and in view of the principles of law laid down in Appabhai and another v. State of Gujarat, (supra), I am of the view that neither the points raised by Ld. Defence Counsel nor the minor discrepancies in the testimonies of the prosecution witnesses could create any dent in the prosecution case.
81. It has been argued on behalf of Ld. Defence Counsel that testimonies of prosecution witnesses are not believable as the IO has failed to join any witness from public at any stage of the investigation i.e. either at the point of making investigation at the spot or at the place of arrest of accused Zile. On the other hand, it has been argued by Addl. Public Prosecutor that IO made efforts to join the public persons as witness but none agreed to participate. On perusal of testimony of PW-13 I find that he inter alia stated that on receipt of secret information about the presence of accused Zile Singh at Shahdara Railway Station IO asked 4-5 public persons to join the raiding party but all of them declined to join raiding party after showing their genuine problems.
SC No. 64/10 State Vs. Zile Singh & Ors. 55/64
82. I have considered the effect of non joining of public witnesses by the IO. My attention goes to a case reported as Appabhai and another v. State of Gujarat, (supra), wherein the Apex Court observed:
"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The Court however must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner."
83. In view of the observation of the Apex Court reproduced here in above and further that IO made efforts to join public witnesses, I am of the view that non joining of public witnesses by the IO is not fatal to the prosecution case. No ill-will or hostility or enmity has been shown or SC No. 64/10 State Vs. Zile Singh & Ors. 56/64 alleged against any of the prosecution witnesses. Therefore, I am of the view that their testimonies are reliable and trustworthy.
84. As the prosecution evidence has established that accused Zile Singh and accused Shahid in furtherance of their common intention inflicted knife blow injuries on the deceased Rahim, with the intention of causing his death on the basis of old rivalry and the cause of his death was hemorrhagic shock as a result of ante-mortem injury as mentioned at injury no.1 in postmortem report EX.PW16/A and that injury was sufficient to cause death in ordinary course of nature, therefore it is held that prosecution case against accused Zile Singh and Shahid stands proved for the offence of murder of deceased Rahim punishable u/s 302/34 IPC. It is further held that prosecution evidence on record against accused Deepak Kumar @ Puri and Channu @ Chunnu is not sufficient for proving offence of murder of deceased Rahim against them. Therefore, they are entitled to get benefit of doubt.
Attempt to murder 85 PW-10 has proved MLC of injured Bilal as EX.PW10/B. The doctor has opined that injuries sustained by injured Bilal were of simple in nature. None of the injuries was inflicted on vital part of injured Bilal. Injured SC No. 64/10 State Vs. Zile Singh & Ors. 57/64 PW3 Bilal has also failed to depose that accused persons attacked him or caused injuries on him with such intention or knowledge and under such circumstances that could have caused his death.
86. Section 324 IPC provides that whoever, except in case provided by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
87. The MLC of injured PW3 Bilal has already been proved on record as EX.PW10/B in which descriptions of injuries sustained by him has been mentioned. PW3 Bilal also deposed in this regard that when he came out from the house he was assaulted. He sustained injuries on his right side fingers as well as back side of arm and just back side of left shoulder. It has been established here in above that accused Zile Singh and Shahid, in furtherance of their common intention caused injuries by use of knife on the SC No. 64/10 State Vs. Zile Singh & Ors. 58/64 body of PW3 Bilal.
88. In view of the evidence available on record, it is held that prosecution could not established its case against any of the accused for the offence of attempt to murder of PW3 Bilal punishable u/s 307 IPC. However, the evidence on record has established that accused Zile Singh and Shahid in furtherance of their common intention voluntarily caused hurt by dangerous weapons, i.e. by knife on the body of PW3 Bilal and in this way prosecution has established that accused Zile Singh and Shahid committed the offence punishable u/s 324 IPC.
89. It is further held that prosecution evidence on record against accused Deepak Kumar @ Puri and Channu @ Chunnu is not sufficient for proving offence of voluntarily causing hurt by dangerous weapons or means on the body of PW3 Bilal punishable u/s 324 IPC. Therefore, they are entitled to get benefit of doubt.
Summary of conclusions
90. Consequent upon the above reasons, discussion and conclusions, it is held that prosecution has successfully proved its case against accused Zile Singh and Shahid for the offence of murder of deceased Rahim punishable u/s 302/34 IPC. It is further held that prosecution has failed to prove its case against accused Deepak Kumar @ Puri and Channu @ Chunnu for the offence of murder of deceased SC No. 64/10 State Vs. Zile Singh & Ors. 59/64 Rahim. Therefore, they are entitled for acquittal for the offence punishable u/s 302/34 IPC on the basis of benefit of doubt.
91. It is further held that prosecution has failed to prove its case against accused persons for the offence of attempt to murder punishable u/s 307 IPC. However, it is held that prosecution has successfully proved its case against accused Zile Singh and Shahid, the offence of voluntarily causing hurt by dangerous weapons and means on the body of injured Bilal punishable u/s 324 IPC but has failed to prove this offence of voluntarily causing hurt by dangerous weapons and means on the body of injured Bilal punishable u/s 324 IPC against accused Deepak Kumar @ Puri and Channu @ Chunnu. Therefore, they are entitled for acquittal for the offence punishable u/s 324 IPC on the basis of benefit of doubt.
92. As PW3 Bilal has deposed falsely in the court, therefore issue show cause notice against him showing cause as to why legal action should not be initiated against him for punishing him for making false statement on oath in the court.
93. Accordingly, accused Deepak Kumar @ Puri and Channu @ Chunnu are acquitted for the offence of murder punishable u/s 302/34 IPC and attempt to murder punishable u/s 307/34 IPC and for the offence punishable SC No. 64/10 State Vs. Zile Singh & Ors. 60/64 u/s 324/34 IPC.
94. However, in view of provisions of Section 437A of Cr.P.C. accused Deepak Kumar @ Puri and Channu @ Chunnu are directed to furnish their personal bond for a sum of Rs. 25,000/- with one surety of like amount for the period of six months.
95. Accused Zile Singh and Shahid @ Saeed are held guilty and convicted for the offence of murder of deceased Rahim punishable u/s 302/34 IPC and voluntarily causing injuries by use of knife on the body of PW Bilal punishable u/s 324/34 IPC.
Announced in the open court on 24.01.2012 (DR. T.R. NAVAL) Addl. Sessions Judge-02 East District:KKD Courts:Delhi SC No. 64/10 State Vs. Zile Singh & Ors. 61/64 IN THE COURT OF DR. T.R. NAVAL:ADDITIONAL SESSIONS JUDGE-02:EAST DISTRICT:KARKARDOOMA COURTS: DELHI SC NO. 64/10 FIR No.101/10 PS Vivel Vihar U/S 302/324/34 IPC State Versus Zile Singh and Others ORDER ON SENTENCE 25.01.2012 Present: Sh. I.H. Siddiqui Addl. P.P. for the State.
Convict/accused Zile Singh @ Billoo and Saeed @ Shahid are present in J.C. Sh. R.K. Kochar, Advocate for the accused. I have heard arguments on the quantum of sentence.
2. It has been argued on behalf of Ld. Defence Counsel that accused/convict Sh. Zile Singh @ Billoo has neither father nor mother, he has two minor sister and brother to maintain; he has family consisting of his wife and minor daughter; he has not been convicted previously in any case. Convict Saeed @ Shahid does not have father; he has old mother to maintain; he has six brothers and sisters to support; he has not been SC No. 64/10 State Vs. Zile Singh & Ors. 62/64 convicted previously. The economic conditions of both the convicts/accused persons are not good and they are very poor. It has been prayed that lenient view in sentence may be taken.
3. On the other hand it has been argued on behalf of Ld. Additional Public Prosecutor that punishment in commensurate with the crime committed by accused persons may be awarded.
4. Although convicts/accused persons have been convicted for the offence punishable under section 302 IPC yet the present case does not fall in the category of rare of the rarest case. Therefore, it would not be just and proper to award death sentence for the offence punishable under section 302 IPC. Keeping in view the submissions and all relevant factors of the present case, both the convicts/accused Zile Singh @ Billoo and Saeed @ Shahid are sentenced to undergo Imprisonment for Life and they are further sentenced to pay a fine of Rs.5,000/- in default simple imprisonment for 1 year for the offence punishable under section 302/34 IPC.
5. Both the convicts/accused persons Zile Singh @ Billoo and Saeed @ Shahid are further SC No. 64/10 State Vs. Zile Singh & Ors. 63/64 sentenced to undergo Rigorous Imprisonment for a period of 1 year and also sentenced to pay a fine of Rs. 500/- in default simple imprisonment for two months for the offence punishable under section 324/34 IPC.
6. Both these sentences will run concurrently.
7. It is further ordered that if convicts/accused Zile Singh @ Billoo and Saeed @ Shahid have undergone any period in judicial custody, that period will be set off against the sentence as provided U/s 428 Cr. P.C.
8. The convicts/accused Zile Singh @ Billoo and Saeed @ Shahid be sent to imprisonment to serve the sentence.
9. A copy each of judgment and order on sentence is supplied to convicts/accused Zile Singh @ Billoo and Saeed @ Shahid free of cost.
10. No other action is required.
File be consigned to Record Room.
Announced in the open court on 25.01.2012 (DR. T.R. NAVAL) Additional Sessions Judge-02 East District:KKD Courts:Delhi SC No. 64/10 State Vs. Zile Singh & Ors. 64/64