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● Kamal is son of deceased and was residing with Deepak. Deepak is nephew of deceased and was residing in the same gali. Manoj is neighbourer and was residing in different gali. ● In his first statement given to police by PW-1, he mentioned time of incident to be 07:30 on wards. He gave two statement on 19.12.1997, one is signed and another is unsigned, though contents are same. On 20.12.1997, PW-1 gave statement under Section 161 Cr.P.C. for identification of dead body. On 10.01.1998 PW-1 complained to Commissioner of Police for improper investigation through Ex.PW-1/Z. On 23.01.1998 third statement of PW-1 was recorded by DIU and his last statement was recorded on 27.02.1998 in respect to site plan.
● PW-27 stated that statement was recorded by PW-6 on his dictation. Therefore, there was no separate statements of PW-1. PW-6 said that he recorded the statement of PW-1 and his sister and PW-27/ SI Amrit Raj might have signed the statement recorded by him. It suggests the same thing. PW-27 denied that the statements U/s 161 Cr.P.C. were in his handwriting. It was Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No. 267/97, PS Gandhi Nagar suggested by defence that PW-1 was examined U/s 161 Cr.P.C and his statement was recorded at hospital. PW-1 was suggested that he signed statement, which was written. Contents of unsigned and signed statements of PW-1 were same and hence there was no need to fabricate a new statement. In old days, statements U/s 161 Cr.P.C. were not used to be filed on judicial record. Therefore, all documents signed or unsigned had to be in case file (police file). Accused malafidely submitted that copies of such statements were not supplied time and again.

30. The next question is that what is credibility of PW-1? PW-1, while deposing before the court gave his statement on the same lines as given on 19.12.1997. The testimony recorded before the court has a bit elaborative form, but there are no additional facts which can be related to the incident in question. He had given the same account of the role played by each accused person during this incident. In his statement given before the police, he had mentioned that the accused persons had caught hold of him and he was beaten on his face, head, nose, ear and right shoulder. In his testimony before the court he mentioned the name of the accused persons who had caught hold of him and they were Rohit, Manoj and Amit. There is no addition of any fact relating to their role. The modification is not there to show a different role played by accused Manoj, Rohit and Amit. PW-1 had already mentioned their presence on the roof, when he had reached the roof after hearing the third knock on the door. It is not necessary that in the statement given before the police, the details given by the witness would be Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No. 267/97, PS Gandhi Nagar repeated verbatim while testifying before the court. Obviously, at the time of giving his statement before the police on 19.12.1997, PW-1 would have been in a different state of mind. Therefore, stating all minute details unless asked by the IO, was not necessary. In fact in his statement before the police, PW-1 had mentioned that accused Deepak and Ashok were hitting on left side of the body of his father with some sharp object with their right hand, but before the court he did not mention the sharp object being used by Deepak and Ashok while inflicting injuries on the left shoulder of his father. This shows that the witness was giving statement, without memorizing his statement under Section 161 Cr.P.C., and as per facts being recollected by him. Otherwise, there was no reason for the witness to omit to mention sharp weapon being used by these two accused persons while inflicting injuries on the body of his father. The role played by Deepak and Ashok was deposed in the same manner except mentioning the weapon and even the place of the body which was being hit by these two accused persons was mentioned to be the same. Thus, there was consistent account of fact in respect of incident in question, which was given by PW-1 before the court as compared to his statement given on 19.12.1997. This witness was cross examined at length by the defence counsels starting from 29.09.2000 up to 03.11.2003. The period of more than three years was sufficient for this witness to commit mistakes and to come up with inconsistent statements during his cross-examination. However, even in his cross-examination his testimony remained consistent in respect of the incident in question as well as other related facts. He deposed that his first statement was recorded by IO in GTB Hospital on Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No. 267/97, PS Gandhi Nagar 19.12.1997 after his medical examination and he had signed his statement at that time. The signed statement was not part of the judicial record, however, same was found in the police file and on the request and demand of the defence, copy of his signed statement was supplied to all the accused persons on 02.11.2000. He was confronted with his unsigned statement recorded on 19.12.1997 wherein, the details of talk taken place between him and his father about the development taken place during the court proceedings were not recorded in the same language. However, it is not necessary that whatever is stated before the court, the same would be stated in the same manner as stated before the police. A person always keeps applying his mind to clarify and explain the same facts in different language. The statement recorded by the IO did not contain the substance of the talk held between PW-1 and his father. However, it did mention that PW-1 and his father were having talk in respect of the complaint case, which was fixed for hearing on that day and therefore, any further explanation regarding substance of such talk may not necessarily be an after thought statement. There is another aspect to such situation as well. While recording statement under Section 161 Cr.P.C., it is the IO who regulates such recording and it remains his discretion to make a choice of relevant facts as per his understanding, so as to incorporate such statement under Section 161 Cr.P.C. Therefore, it is not necessary that IO may be willing to record each and everything, which is so stated by a witness. Therefore, all additions in the statement given before the court cannot be treated to be an after thought statement. It would be only those statements which are totally in contradiction to the statement given before the police, Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No. 267/97, PS Gandhi Nagar which can be treated as an after thought statement. Further more, such facts which were very basic to the incident in question and would have been stated by the witness in all likeliness before the police, if not found in the statement under Section 161 Cr.P.C., then a suspicion is raised against the testimony of the witness. However, even such suspicion is to be further analyzed keeping in view the overall conduct of the witness and his testimony related to the incident, because it cannot be forgotten that a witness is after all not an expert of law or of the investigation. It is basically duty of the IO to ask all relevant questions related to the incident from the witness and to record answer to such facts. Therefore, all omissions cannot be said to be on account of some deliberate conduct of the witness. Therefore, I find testimony of PW-1 inspiring confidence, which withstood long grilling test of cross- examination. Rather, in cross-examination I find clarification to same facts, thereby giving clarity to his examination in chief.