Bombay High Court
Amol S/O Puroshottam Londhe vs The State Of Maharashtra on 8 January, 2014
Author: B.R. Gavai
Bench: B.R. Gavai, A.S.Chandurkar
apeal396.10.odt 1/29
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO.396 OF 2010
APPELLANT: Amol S/o Puroshottam Londhe,
age about 28 years,
Occupation-Goldsmith, R/o
Tulsibag, Mahal Nagpur (At
present in Central Prison,
Nagpur)
ig -VERSUS-
RESPONDENT: The State of Maharashtra,
through P. S. O. Kotwali
Police Station, Nagpur.
Shri R. K. Tiwari Advocate for the appellant.
Mrs. Bharti Dangre, Additional Public Prosecutor for
respondent.
Ooo
CRIMINAL APPEAL NO.397 OF 2010
APPELLANT: Mahendra S/o Puroshottam
Londhe, Age about 34 years,
Occ-Gold Smith, R/o Tulsibag,
Mahal Nagpur (At present in
Central Prison, Nagpur)
-VERSUS-
RESPONDENT: The State of Maharashtra,
through P. S. O. Kotwali
Police Station, Nagpur.
Shri R. K. Tiwari Advocate for the appellant.
::: Downloaded on - 27/01/2014 23:07:42 :::
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Mrs. Bharti Dangre, Additional Public Prosecutor for
respondent.
OOO
CRIMINAL APPEAL NO.555 OF 2010
APPELLANT: Smt. Vaishali Wd/o Pramod
Kukadey, aged about 28 years,
Occupation-household, R/o
Tulshibagh, Belbagt, P. S.
Kotwali, Nagpur.
-VERSUS-
RESPONDENTS: ig 1 Purshottam S/o Ganpat Londhe,
aged about 65 years,
Occupation-business,
2 Mahendra S/o Purshottam
Londhe, aged about 34 years,
Occupation-business,
3 Amol S/o Purshottam Londhe,
aged about 28 years,
Occupation-business,
Nos.1 to 3 R/o Tulshibagh,
Belbag, P. S. Kotwali, Nagpur.
4 State of Maharashtra through
Police Station Officer,
Kotwali P.S., Nagpur.
Mrs. Bharti Dangre, Additional Public Prosecutor for
respondent No.4.
CORAM: B.R. GAVAI AND A.S.CHANDURKAR,JJ.
DATED: 8TH JANUARY, 2014.
ORAL JUDGMENT : (Per B.R. Gavai, J)
1. The appellants in Criminal Appeal no.396 of ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 3/29 2010 & Criminal Appeal No.397 of 2010 who are original accused Nos.1 and 2 in Sessions Trial No.309 of 2009 have approached this Court being aggrieved by the judgment and order passed in said Sessions Trial on 13-5-2010 thereby convicting the accused appellants for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentencing them to suffer Rigorous Imprisonment for life and to pay fine of Rs.1000/- (Rs. One Thousand) each in default of payment undergo further rigorous imprisonment for one month.
2. The prosecution case as could be gathered from the record is as under:
3. That the first informant Vaishali Pramod Kukadey PW-1 was residing with her husband, son Ashutosh, daughter Rewati, mother-in-law Kaushalyabai, nephew Mangesh Marotrao Gomase at Tulshibag near temple of lord Shankar, Belbag, P. S. Kotwali, Nagpur.
4. Her deceased husband Pramod Kukadey was kerosene dealer and nephew Mangesh was taking education. The accused persons were also residing in the nearby locality. There was an enmity between the complainant's family and the family of the accused as Mangesh PW-2 had lodged the complaint against the ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 4/29 accused Nos.1 & 2 at Police Station Kotwali.
5. It is the prosecution case that on 26-3- 2009 at about 11.15 p.m., all the family members of the informant were present at home. At that time, they heard noise loudly such as "Mangya ko bahar nikalo". The sister-in-law of informant namely Meena opened the door, the accused Nos.1 to 4 holding wooden log, sword in their hands entered in the house and rushed to assault Mangesh. The informant's sister-in-law ig came outside of the house. Meena also followed Mangesh and across and Mangesh ran away started towards the Police station to lodge report.
The accused N.1 to 4 on account of old enmity broke the old television of Crown Company belonging to the complainant. The husband of the complainant who was on the first floor came down. The accused Nos.1 to 4 dragged the deceased Pramod Kukadey out of the house and took him in front of the house on the road and assaulted with sword and wooden logs on his neck and other part of body. When the informant went to save her husband, she sustained injury on her right hand and leg. Her husband fell down on the ground in injured condition. The accused then fled away from the spot. One Sandeep and others took deceased Pramod to the hospital, but her husband was declared as dead. On receiving information of the incident, PW-13 P.S.I. Ashok Bhalavi came on the spot. He drew spot ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 5/29 panchanama on the spot. Thereafter, he took the first informant to the Police Station. On the basis of the report lodged by PW-1 informant, crime came to be registered for the offences punishable under Sections 452,302,504,427,323 r/w 34 of the Indian Penal Code vide Crime No.40 of 2009 at Police Station Kotwali.
Further investigation was carried out by the Investigating Officer including drawing of inquest panchanama, seizure panchanama of the clothes, recording of the statements of the witnesses etc. accused persons The charge-sheet came to be filed against all the for the aforesaid offences and for the offence under Section 135 of Bombay Police Act.
Since the offence was exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class Nagpur committed the case to the Court of Sessions.
6. The charges were framed against the accused by the learned Sessions Judge and the accused persons pleaded not guilty and claimed to be tried. The defence of the accused was of total denial. Various witnesses were examined on behalf of the prosecution in support of its case. At the conclusion of the trial, the learned Sessions Judge convicted the appellants accused No.1 Mahendra S/o Purshottam Londhe and accused No.2 Amol S/o Purshottam Londhe for the offence punishable under Section 302 read ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 6/29 with Section 34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for life and to pay fine of Rs.1000/- (Rs. One thousand) each in default of payment of fine to suffer further rigorous imprisonment for one month. Accused Nos.3 to 5 were acquitted. Being aggrieved, the present appeals have been preferred by accused Nos.1 & 2.
The first informant - Vaishali has preferred Criminal Appeal No.555/2010 being aggrieved by the order of acquittal.
7. ig Heard Shri R. K. Tiwari learned Counsel for the appellants - accused and learned Additional Public Prosecutor Mrs. Bharti H. Dangre.
8. Shri Tiwari submits that the prosecution case is full of lacunas. Learned Counsel submits that the prosecution has falsely implicated the present appellants. The learned Counsel submits that the version given by the PW-1 in the First Information Report is totally at variance with the version given by her in her deposition before the Court. The learned Counsel submits that the versions given by PW-1 are totally inconsistent with each other and as such, the evidence of PW-1 cannot be taken into consideration for resting the conviction of the appellant. Learned Counsel in this respect relies on the judgment of the Apex Court in the case ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 7/29 of Suraj Mal v. The State (Delhi Administration), reported at AIR 1979 Supreme Court 1408.
Learned Counsel further submits that the version given by the other witnesses is also totally contradictory to each other. It is submitted that there is no consistency in the version given by the witnesses. The learned Counsel, therefore, submits that the order of conviction as passed by the learned Trial Judge is not sustainable in law.
The learned Counsel further submits that
there
is delay of
statement of the witnesses though they were very much three days in recording the available. The learned Counsel submits that the delay in not recording the statement at the earliest point of time is fatal to the prosecution case. The learned Counsel in this respect placed reliance on the Judgments of the Apex Court in the case of Kanhai Mishra alias Kanhaiya Misar V. State of Bihar, reported at 2001 Supreme Court Cases (Cri) 537, Vijaybhai Bhanabhai Patel v. Navnithbhai Nathubhai Patel and others, reported at 2004 Supreme Court Cases (Cri) 2032 and the division Bench Judgementnt of this Court in the case of Laxman Bapurao Ghaiwane V.V.V.V. The State of Maharashtra, reported at 2012 ALL MR (Cri) 3605.
Learned Counsel further submits that the medical evidence is in variance with occular version of the the witnesses and as such, the benefit must go ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 8/29 to the accused persons. Learned Counsel placed reliance on the judgment of the Apex Court in the case of Kalyan & others V State of U.P., reported at IV (2001) CCR 95 (SC).
The learned Counsel further submits that there is delay in lodging the report. The PW-13 immediately rushed to the spot and there is no reason as to why the First Information Report ought not to have lodged immediately. Learned Counsel submits that in these circumstances even delay of more than an hour would be fatal to the prosecution case.
Learned Counsel further submits that on the spot, six weapons have been found, which is also not explained by the prosecution. Learned Counsel further submits that in the totality of the above circumstances, the order of conviction is liable to be set aside.
9. Mrs. Dangre, the learned Additional Public Prosecutor on the contrary submits that the evidence of PW-1, PW-2, PW-3 & PW-8 is consistent with each other. Learned Counsel submits that merely because there are minor variations in the evidence of the witnesses with regard to minor details, same cannot be a ground for disbelieving the testimony of such witnesses. Learned Counsel submits that the occular testimony of the prosecution witnesses is consistent with the medical evidence and, therefore, the learned ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 9/29 Trial Judge has rightly passed the order of conviction.
Learned Counsel further submits that merely because there is some delay in recording the statements of the witnesses, the same cannot be fatal to the prosecution case. Reliance in this respect was placed upon the Judgment of the Hon'ble Supreme Court dated 8-4-2013 in the case of Lal Bahadur & Ors. vs. State (Nct of Delhi) and in the case of Sidhartha Vashist @ Manu Sharma vs. State (NCT) of Delhi) reported in 2010 ALL MR (Cri) 1627 (SC).
10. With the assistance of the learned Counsel appearing on behalf of the appellants and learned Additional Public Prosecutor, we have scrutinized the evidence on record. The prosecution case mainly rests on the evidence of PW-1 Vaishali Pramod Kukadey the first informant, PW-2 Mangesh Gomase, PW-3 Ashok Morey and the PW-8 Pushpabai Chauhan.
11. PW-1 Vaishali in her deposition before the Court has stated that on 26-3-2009, all members in the family were present. On that day, at about 9 to 9.30 p.m., she, her husband and children had taken dinner and thereafter they went to the upper floor for sleeping. Her mother-in-law Kaushalyabai, nephew Mangesh and her sister-in-law Meena were on the ground floor. At around 11 to 11.15 p.m., they heard ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 10/29 noise on ground floor. Immediately her husband rushed towards there, she followed him. At that time, the accused No.1 Mahendra and accused No.2 Amol were about to drag her husband outside and circle him. At that time, her husband gave call such as "Wachaware Ashok". The accused Nos.1 and 2 were holding swords in their hand and they were beating her husband with swords. At that time father of the accused Nos.1 & 2, i.e. accused No.4 came there. He was holding stick (danda). The accused No.4 Purshottam gave blow of stick forcefully on husband fell down. Accused persons took her husband the head of her husband. Her in the courtyard of her house. After blow of stick, her husband fell down, accused No.1 and accused No.2 were beating her husband on his neck with sword. She intervened. At that time, she received blow of sword which was in the hand of accused no.1, on her right wrist and above finger of right leg. Her mother-in-
law also intervened. But the accused gave fist blow on her chest, so she fell down. Because of assault, her husband died on the spot. She states that the accused killed her husband on the spot. She said that the accused No.3 Manoj and accused No.5 Shalinibai were also present there. Accused No.5 Shalini then stated "melare atta ghari chala" and thereafter, the accused persons went away. She stated that her husband was lying there in a pool of blood.
Thereafter, many persons gathered there. She ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 11/29 requested those persons to take her husband to the hospital. Ashok More, Milind and Balya lifted her husband and put him in autorickshaw and took him at Medical College Hospital, Nagpur. This witness has been thoroughly cross examined. However, nothing damaging, in so far as the main incident regarding assault by the present accused is concerned, has come on record in her cross examination. No material variance in the report at Exh.47 as well as her deposition before the Court could be proved. No doubt that in the states that after she started shouting, her husband first information report, she came down from the first floor, whereas in her deposition before the Court, she states that she and her husband both came down after hearing the shouts.
However, in so far as the main incident regarding the assault is concerned, her version is identical in the first information report as well as her deposition before the Court. It is to be noted that the first information report is lodged within two hours from the brutal attack on the husband of the first informant. One can imagine as to what would have been the mental condition of the complainant at that time. In any case, by now it is settled principle of law that the first information report is not an encyclopedia of the entire incident. In the first information report, she has clearly indicated four accused persons i.e. two appellants before this Court ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 12/29 and other accused Nos.3 & 4.
12. In so far as the judgment in the case of Surajmal (supra) on which the learned Counsel for the appellant placed reliance is concerned, the said case arose out of the proceedings under the Prevention of Corruption Act. Out of the three accused therein, one was acquitted by the learned Trial judge. The High Court acquitted one of them, but maintained the conviction of the appellant before the Apex Court. It will be ig relevant observations of the Apex Court.
to refer to the following "5................................... ..................................... ..................................... The upholding the conviction of the appellant the High Court completely overlooked the fact that the very evidence on which the conviction of the appellant was based, had been rejected with respect to the same transaction and thus if one integral part of the story given by witnesses was not believable, then the entire case failed. In other words, the position was that while P.W.6, 8 and 9 were disbelieved both in regard to the factum of payment of the bribe and the recovery of the money, regarding Ram Narain, the very same witnesses were believe so far as the appellant was concerned. It is well settled that where witnesses make to inconsistent statements in their evidence either at one stage of at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.........
It can thus be seen that what the Apex Court observed ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 13/29 is that the High Court disbelieved the evidence of some of the witnesses while acquitting one accused, but had maintained the conviction of the appellant before it relying on the very same evidence. In this background, the Apex Court observed that where the witnesses make two inconsistent statement in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence. Such is not the case here. It can not be said that PW-1 has given inconsistent version at two or more stages with respect to the main incident. As already discussed herein above, the First Information Report is registered within a period of two hours after the deceased Pramod husband of PW-1 was brutally done to death. In this background, it could not be expected of the PW-1 to give the entire encyclopedia in the first information report. In that view of the matter, we are not inclined to accept the contention of the learned Counsel of the appellant in that regard. By now it is settled principle of law that the evidence of interested witnesses cannot be discarded only on the ground that they are interested witnesses. However, what is required is that the evidence of such witnesses must be scrutinized with greater caution.
In that view of the matter, it will be safe to find out some corroboration to the testimony of PW-1.
::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 14/2913. PW-2 Mangesh is again an interested witness. This witness states that on 26-3-2009 at 9 p.m. he, his mother, his maternal uncle, maternal aunt, grand mother and children of his maternal uncle had taken dinner at house. He heard noise outside of gate. He heard noise such as "nikalre Mangya: At that time accused No.1 Mahendra and accused no.2 Amol came in the house. They were holding sword. His mother was in between him and accused No.1. He pushed his mother on accused no.1 to save him and he went outside of the gate.
ig He rushed towards lane near to his house and stopped there. He stated that he was observing from lane. He saw accused No.1 and 2 carried his maternal uncle Pramod outside of the house. Accused No.1 and 2 were holding his maternal uncle Pramod outside the house. However, from the perusal of the map of the spot, the version of this witness that he has witnessed this from the corner of the lane appears to be unacceptable. The distance between the spot and the corner of the lane is hardly couple of feet. He has further admitted in his evidence that though his uncle was being assaulted by the accused persons, he was standing there and did not make any attempt to save his uncle. As such, we find that the presence of this witness on the spot appears to be doubtful and it would not be safe to rely on the evidence of this witness.
::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 15/2914. The next witness is PW-3 Ashok More. He states that on the date of incident, he was sitting in a premises of temple. He came back to his home, and switched on T. V. He states that after having the food, he saw his wife running. He followed his wife and came outside of house. He saw accused Nos.1, 2 & 4 beating Pramod. The accused No.1 Mahendra beat Pramod with sword, accused No.2 Amol beat with stick, accused No.4 Purshottam was holding sword and handle of spade. He states that the deceased Pramod gave call to ig him corroborated in the evidence of PW-1.
to save him. His version is
He states that
also
he moved to save Pramod. However, the accused raised
sword on him. He however, states that thereafter he
rushed in the house to bring stick to save him. He states he did not find any stick in the house and he came out and found Pramod lying on the ground. He lifted Pramod and put him in the autorickshaw and took him to Medical College Hospital. The house of this witness is adjacent to the house of the first informant and the deceased. As such, his presence on the spot is natural. We, therefore, find that the version of PW-1 is corroborated by this witness to a substantial extent.
15. PW-8 Pushpabai was residing immediately in front of the house of the deceased Pramod and the first informant. She states that the accused No.1 and ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 16/29 accused No.2 were holding swords in their hand and accused Purushottam holding stick in his hand came there. At that time, the accused No.1 and accused No.2 entered the house of deceased Pramod and accused No.1 and accused No.2 beat Pramod with swords. The accused No.1 and accused no.2 dragged Pamod out of the house beating him. The wife of the deceased Pramod came out of the house and again accused Nos.1, 2 & 4 started beating Pramod. She states that blood started oozing from the body of Pramod. His wife also rushed there. She stated that the accused Nos.1 & 2 assaulted Vaishali with swords. She further states that the accused No.1 and 2 also assaulted the mother of Pramod on her hand and leg with swords.
Pramod Kukade became unconscious and her neighbourer More put Pramod in the auto-rickshaw and him to the Medical Hospital.
16. The perusal of the map of the spot would reveal that the house of Pushpabai is in front of the house of the first informant and the deceased. As such, her evidence in our view is also a natural evidence. The evidence of PW-1 is, therefore, corroborated by the PW-3 and PW-8 who are independent witnesses. We do not find anything on record to come to a conclusion that the evidence of these two witnesses is that of interested witnesses. Both these witnesses are neighbours of the deceased and the ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 17/29 informant and as such, we find that the version given by these two witnesses is a truthful version.
17. The evidence of these witnesses is corroborated by the evidence of PW-9 Dr. Vipul. The deceased Pramod has sustained the following 22 external injuries.
"1) Lacerated wound - stab right parietal, 4" above right ear, vertical, 1 x 1¼ bone deep with abrasion of size 1" x ¼" present at right lateral margin, red ig brown.
2) Chop wound right tmporo mastord region, ¼" above right ear vertical, 2" x ½" x bone deep, underlying bone cut; with corresponding cut at upper margin of ear pinna cartilage.
3) Incised wound right occipito mastord region with its anterior angle merges with posterior angle of injury no.2, 1½" x ¼" x bone deep with corresponding with at posterior ante margin of ear pinna cartilage M/3.
4) Chop wound 2½" posterior to right to right ear, at hairline. Right occipital, 2½" x ½" x bone deep, oblique.
5) Incised wound 1" below to injury 4, with posterior angle merges injury 4, 1 ½" x ¼ x bone deep, oblique.
6) Abrasion right posterior lateral aspect of neck, 1" x ¼", red brown.
7) Skin deep incised wound at right angle of mandible 1½" x 1/8".
oblique.
8) Skin deep incised wound over
right check between right ear
towards angle of meath, 3" x
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1/8".
9) Abrasion right forehead, 1½" from
midline, vertical, 1½" x ½", red
brown.
10) Abrasion right chin bone, 1"
right to midline, ½" x ¼", red
brown.
11) Incised wound - mid mustache
region upto below right eye,
oblique, 2" x ¼" x ¼".
12) Incised wound upper lip right
side 1" lat to injury-11, ½" x ¼"
x ¼".
13) Skin deep incise would right alag
of nose ½" x 1/8".
ig 14) Stab wound, neck at base of right
angle of mandible, ¾" x ½" x 1"
deep, directed downward and
medline, with taily at upper
angle for 1 ½" semi deep.
15) Skin deep incised wound, left
shoulder, ante lateral, 2" x
1/8".
16) Two abrasions left arm U/3, 1" x
½" and ¼" x ¼", red brown.
17) Skin deep incised wound, 5" below
left arm pit (axilla),
truasverse, 3" x ¼".
18) Chop wound between left ring and
midde finger, 3" x 1' x bone
deep.
19) Two skin deep incised wound,
right arm U/3, lateral, oblique, 3" x ¼" each.
20) Abrasion, lumbar region back
midline, between L-1-L-2
vertebral, 4" x 2½", red brown.
21) Three skin deep incised wounds -
Postero lateral aspect of right
flank at L-2 vertebral level, 5"
from midline trans verse, 1½" x
1/8", 1½" x 1/8".
22) Two skin deep incised wound,
right side back at T-10
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vertebral."
18. As per the medical expert's opinion, the
internal injuries correspond to external injury Nos.1 to 5. The cause of death given is head injury. The said witness has also given expert opinion that weapon Nos.1 & 2 are the blades of sword. He has opined that Injury Nos.2, 3, 4, 5, 7, 8, 11, 12, 13, 14, 15, 17, 18, 19, 21 and 22 are possible by these weapons. The internal injuries No.2 to 5 are corresponding external injuries 1 to 5. It can thus, be seen that the injuries which caused the death of the deceased are possible, and can be caused by sword which weapon is used by the accused persons in commission of offence. We, therefore, find that the reliance placed by the learned Counsel for the appellant on the Judgment of the Apex Court in the case of Kalyan & Ors V. State of U.P., IV (2001) CCR 95 (SC) is misplaced. In the present case, we find that there is no inconsistency in the occular testimony of witnesses and the evidence of the Medical expert. As such the said judgment would not be applicable to the facts of the present case.
The learned Counsel for the appellant has heavily relied on the fact that though the incident is alleged to have taken place on 26-3-2009, the statements of the witnesses are recorded on 29th and 31st March, 2009. According to the learned Counsel, ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 20/29 the said delay is fatal to the prosecution case.
Learned Counsel has relied on the various judgments of the Apex Court in support of the said proposition.
In so far as the judgment of the Apex Court in the case of Vijaybhai Bhanabhai Patel Vs. Navnitbhai Nathubhai Patel and others, 2004 Supreme Court Cases (Cri) 2032 is concerned, the Apex Court was considering the appeal arising out of an order of acquittal. By now, it is the settled principle of law that interference in the finding of acquittal would taken by the be warranted only when the Court finds that the view subordinate Court is either perverse or impossible. The High Court in the said case had found that there were lot of discrepancies in the evidence of PW-7 and & PW-4 whose statements were recorded belatedly and, therefore, the Apex Court refused to interfere with the finding of acquittal. The Apex Court has clearly observed that if the High Court, for acquitting the accused has given certain tenable reasons, it would not be justified interfering with such acquittal. In the present case, we are not dealing with the appeal which arise out of an order of acquittal. As such, the said judgment would not be applicable to the facts of the present case.
19. In so far as the judgment of the Division Bench of this Court in case of Laxman Bapurao Ghaiwane vs. The State of Maharashtra is concerned, ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 21/29 the first informant who was the wife of the deceased was not an eye witness to the incident. She had lodged the First Information Report on the basis of hearsay. In this background, the Division Bench of this Court found that the statement of the witnesses which were recorded after the period of three days and particularly when there was no explanation for not recording their statement at the earliest point of time proved to be fatal to the prosecution case.
However, the Division Bench of this Court itself observed in paragraph No.23 that unexplained delay itself is not always fatal to the prosecution case.
Such is not the case here. In the present case, PW-1 herself is an eye witness and she has implicated the accused persons in the first information report which is immediately lodged. It is not a case that the accused persons are for the first time sought to be implicated after 2 or 3 days, but it is at the very first opportunity i.e. within a couple of hours. As such, said judgment would also not be applicable to the facts of the present case.
20. That leads us to next contention of the learned Counsel that the first information report ought to have been registered on the spot itself instead of recording it in the police station and delay in this process would be fatal to the prosecution case. Heavy reliance is placed on the ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 22/29 judgment of the Apex Court in the case of Kanhai Mishra alias Kanhaiya Misar Vs. State of Bihar in this respect. In the said case, the first informant had after occurrence of the incident gone to the police station, narrated the occurrence and after 10 to 20 minutes' stay there, returned to his village where the Officer in charge of the police station recorded his first information report naming the appellants of having committed the offence. In these circumstances, the Apex Court found that not recording the first information report in the Police Station and recording the same subsequently in the village would be fatal to the prosecution case. In the said case, the first informant had not implicated the accused at the first opportunity available, but had implicated them subsequently. Such is not the case here. In the instant case at the earliest opportunity PW-1 has implicated the accused in the first information report. We find that the said judgment is also not applicable to the facts of the present case.
21. The question as to whether the delay in recording of the statement of the witnesses would be fatal to the prosecution case or not would depend upon the facts and circumstances of each case. No strait jacket formula can be laid down in that regard. The apex Court in the case of Sidhartha ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 23/29 Vashisht @ Manu Sharma Vs. State (NCT of Delhi) has observed thus :
"58. Mr. Ram Jethmalani, learned senior counsel for the appellant-Manu Sharma by placing various decision contended that the delay in recoding statements of witnesses is fatal to the case of the prosecution, when the trial Court rightly accepted the same, however, the High Court committed an error in ignoring the said vital aspect. For this, learned Solicitor General submitted that the said contention is based on incorrect understanding of law and its wrong application to the facts of this case. The first judgment relied on by the ig learned Senior Counsel for the appellant-Manu Sharma is in Ganesh Bhavan Patel Vs. State of Maharashtra, (1978)4 SCC 371. In that case, the witnesses were known and could have been examined when the Investigating officer visited the scene of occurrence or soon thereafter. In the present case, there were about 100 or more persons present at the party. The identity of all such persons took substantial amount of time to determine. Consequent to the large number of witnesses, their interrogation also consequently took a substantial amount of time. Unlike the said decision, in the present case, there are no concomitant circumstances to suggest that the investigator was deliberately making time with a view to give a particular shape to the case.
The details of investigation conducted on each day are very clearly brought out in the evidence of the various witnesses. Furthermore, the identity of the appellant as a consequence of any delay. Thus, the delay, if any, in recording the evidence of witnesses in the present case cannot be considered as in infirmity in the prosecution case.
59. The judgment in Maruti Rama Naik Vs. State of Maharashtra, (2003) 10 SCC 670 : [2003 AIR SCW 4468], relied on is also distinguishable. The ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 24/29 delay in recording the statement in that case was coupled with the unnatural conduct of the witness and that was what made the evidence of the said witness unreliable, which is not so in the present case.
60. The other judgment in Jagjit Singh Vs. State of Punjab, (2005) 3 SCC 689 :[2005 ALL MR (Cri) 1064 (S.C.) is also distinguishable. In that case, the delay in recording the evidence of PW-6 was coupled with several other factors which made her testimony unreliable, including the finding that she implicated the appellant only at the prompting of her father and that otherwise she had not named the appellant as an accused. Furthermore, ig there was no explanation regarding the delay in that case. The facts of that case are, therefore, clearly different from the present case.
61. The defence seeks to discredit the statement of PW-1 Deepak Bhojwani on two counts, firstly that statement is recorded after 14 days and secondly, there are various improvements, in his statement. It is next contended by the defence to believe this man is to disbelieve Beena Ramni. According to him, the prosecution did not know even on 14.05.1999 the details of their story and thus resulting in various improvements in the testimony of this witness, in the witness box. This contention of the defence looses sight of the fact that much prior to 14.05.1999 Manu Sharma had surrendered on 06.05.1999 and had made his disclosures and thus there could be no question of not knowing the facts on 14.05.1999. Had the witnesses been planted, the witnesses would have rendered a parrot like testimony. PW-1 has explicitly stated that on 30.04.1999 he had told the police at the Apollo Hospital all that he knew. This being the case, it cannot be said that the testimony of the witness should be thrown out for the delay in recording the statement by the Police. Clearly, PW-1 was not an eye-witness, ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 25/29 this fact must have been realized by Pws-100 and 101, therefore, they felt no urgency in addressing this aspect of the investigation i.e. recording of the statement of PW-1. It is stated by the State that as there were number of witnesses to be examined the said examination continued for days.
Witnesses Parikshit Sagar and Andleep Sehgal were also examined on 14.05.1999. Further the presence of Deepak Bhojwani can also not be belied in view of the testimony of Sahana Mukherjee PW-29 and Sabrina Lal PW-73. In any case, any defect by delay in examination of witnesses in the manner of investigation cannot be a ground to condemn the witness. Further Section 162, Cr.P.C. is very clear that it is ig not mandatory for the police to record every statement. In other words, law contemplates a situation where there might be witnesses who depose in Court but whose previous statements have not been recorded.
62. It is next contended by the learned senior counsel for the appellant - Manu Sharma that there was a delay in recording the statement of Deepak Bhojwani and his name having not been found from the list of guests prepared by George Mailhot, Exh.24/A. It was further pointed out that the list was not a conclusive list and was prepared by George Mailhot on the basis of remembrance and other witnesses have also admitted the presence of Deepak Bhojwani. This is more so relevant as the invited guests were also entitled to bring guests with them. The statements of witnesses were recorded not only by the I.O. himself but by other officials as well who were helping him in investigation. The delay in recording the statement of Deepak Bhojwani occurred due to natural flow of statements of various witnesses. The statement of Deepak Bhojwani PW-1, was recorded by ACP Durga Prasad PW-92, who stated the name of Deepak Bhojwani occurred during the course of interrogation of other guests/witnesses. The evidence of PW-1 is relevant for a limited purpose ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 26/29 i.e., proving the presence/identity of Manu Sharma and his desire for liquor in the party which part of evidence has also been given by other witnesses in so many words, prior to Deepak Bhojwani as well. The said witness in his evidence has categorically stated as under:
"Few of the police officials came to Apollo Hospital along with the Ambulance and few of them returned to Qutub Colonnade. I did not make any statement to the police in Apollo Hospital. Since I had not sen the incident being taking place and at Ashlok and ig Apollo Hospital discussion was going on as to who had done this and it was also being discussed that the culprit was wearing Blue Denim Jean and White Shirt and was fair and was little short in height then I assessed that he was the same person who came to me to arrange drinks for him. I had told the police in Apollo Hospital that it was Manu Sharma who was with the similar description as was discussed amongst friends on which police had told me that they would call me."
63. In Mohd. Khalid Vs. State of W. B., (2002)7 SCC 334, this Court held that mere delay in examination of the witnesses for a few days cannot, in all cases, be termed to be fatal so far as the prosecution is concerned. There may be several reasons. When the delay is explained, whatever be the length of the delay, the Court can act on the testimony of the witness if it is found to be cogent and credible. In Prithvi Vs. Mam Raj, (2004) 12 AXX 279, it was held that delay in recording the statement of the witness can occur due to various reasons and can have several explanations and that it is for the Court to assess the explanation and, if satisfied, accept the statement of the witness. The same ::: Downloaded on - 27/01/2014 23:07:42 ::: apeal396.10.odt 27/29 principle has been reiterated in Ganeshlal Vs. State of Maharashtra, (1992) 3 SCC 106.
It can thus, be seen that the Apex Court in clear terms held that merely because there is some delay in recording of statements, the same cannot be fatal to the prosecution case. In the present case, PW-12 Vijay Yadav who was the Writer of the Investigating Officer was examined and has stated that the statements were not recorded since the witnesses were busy in the last rites.
ig It is to be noted that the incident has taken place on the mid night of 26th and 27th March, 2009. On the next date i.e. 27 th March, the witnesses must have been busy in the postmortem of the deceased, collecting his body and thereafter cremation of the deceased. As per the system prevailing in this area in Hindu religion, on the next day of the cremation, ashes are submerged in the nearby holy rivers. As such, the relatives and the other two witnesses who are the neighbours could be busy with the said rites on 28th March, 2009.
Immediately on the next day i.e. on 29th March, statements of the witnesses have been recorded. In that view of the matter, in the facts and circumstances, and particularly when in the present case, the appellants have been implicated in the first information report itself, which has been recorded within a period of two hours, we find that ::: Downloaded on - 27/01/2014 23:07:43 ::: apeal396.10.odt 28/29 there is no delay in recording the statement of the witnesses.
22. No doubt that there are various lacunaes and discrepancies in the present case. We find that the investigation could have been carried in a much better and in a systematic way. The investigating agency as well as the prosecution have left various lacunaes in the investigation as well as in the prosecution case. However, by now, it is settled principle certain ig of discrepancies law that merely or lacunaes because left there in are the investigation by the prosecution, benefit would not go to the accused, if the prosecution on the basis of the evidence which is found to be reliable and trustworthy proves the case beyond reasonable doubt.
23. In that view of the matter, we find that the prosecution has on the basis of the evidence of PW-1, PW-3 and PW-6 proved the case against the present appellants beyond reasonable doubt.
24. In so far as the appeal against acquittal of the rest of the accused is concerned, as has already been discussed herein above, the scope of interference in the appeal against acquittal is very limited. This Court finds that the view taken by the learned Trial Judge is neither perverse nor ::: Downloaded on - 27/01/2014 23:07:43 ::: apeal396.10.odt 29/29 impossible so as to interfere with the same. We find that the view taken by the learned Trial Judge while acquitting the accused is a possible view based on appreciation of evidence. In no case, it can be said that the view is either perverse or impossible.
25. In that view of the matter, all the appeals fail and as such, are dismissed.
JUDGE JUDGE
//MULEY//
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