Ram Singh vs State

Badar Durrez Ahmed, J.—The appellants in these appeals are aggrieved by their conviction vide judgment and / or order dated 18.07.1992 by the Additional Sessions Judge, Shahdara, Delhi under Sections 302/34 of the Indian Penal Code, 1860 (hereinafter referred to as ''IPC'') alongwith two others, namely, Suresh and Mukesh for having caused the death of Parveen Kumar by stabbing. The appellants are also aggrieved by their conviction u/s 307/34 IPC in respect of the injuries caused to Laxmi Narain and Nanu. All the convicts were sentenced on 18.07.1992 by the learned Additional Sessions Judge to undergo life imprisonment in respect of the offence u/s 302/34 IPC and 5 years rigorous imprisonment in respect of the offence u/s 307/34 IPC. Both the punishments were to run concurrently.

It may also be pointed out, at the outset, that all the four persons, who had been convicted, had filed appeals against their conviction and sentence. Insofar as the other two convicts, namely, Mukesh and Suresh are concerned, their appeals being Criminal Appeal 186/1992 and Criminal Appeal 189/1992 were dismissed by another Division Bench of this Court in exercise of its powers u/s 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as ''CrPC''). The appeals were so dismissed by a detailed judgment and / or order delivered on 18.02.2008. The said Bench was of the view that as the convicts Suresh and Mukesh had not appeared before court despite issuance of non-bailable warrants, the inherent powers of the High Court preserved by Section 482, CrPC could be exercised inasmuch as the appeals by such convicts, who had taken advantage of orders of suspension of sentence and then not appeared before court, were manifestly an abuse of the process of court. In the present appeals, however, we are not concerned with the dismissal of the appeals of the co-convicts Suresh and Mukesh inasmuch as such dismissal was not on merits.

Having cleared the ground for proceeding with the present appeals, it would be necessary to state in brief the prosecution case. As per the charges framed by the trial court on 19.05.1988, the two appellants herein and the said Suresh and Mukesh were all charged of having committed the murder of Parveen Kumar by invoking the provisions of Section 302 read with Section 34 IPC. It was alleged that they had, on 25.08.1987 at about 11.00 p.m., in front of House No. L- 331, Sunder Nagri, in furtherance of their common intention, committed the murder of Parveen Kumar and thereby they had committed the offence punishable u/s 302/34 IPC. The second charge that was leveled against the appellants and the said Suresh and Mukesh was that they had committed an offence punishable under Sections 307/34 IPC. The allegation was that they had on 25.08.1987 at about 11.00 p.m., in front of House No. L-331, Sunder Nagri, in furtherance of their common intention, caused injury to Laxmi Narain and Nanu. It was alleged that the injuries were so caused with the intention or knowledge and under such circumstances that, if by that act they had caused the death of Laxmi Narain and Nanu, they would have been guilty of murder. Both the charges arise out of the same alleged incident. Exhibit PW-1/A is the Ruqqa based on the statement dated 26.08.1987 made by Rajender Kumar who was a neighbour of the deceased Parveen Kumar. In the said statement, Rajender Kumar (PW-1) revealed that about three months back, the engagement of Chotey Lal''s daughter was fixed with Parveen which was broken later on some issue between them. Because of that, Chotey Lal bore a grudge against Parveen and on account of this grudge, the ''relatives'' of Chotey Lal, namely, Suresh Mukesh, Rajesh and Ram Singh, who had visited Chotey Lal''s house, made a murderous attack on Parveen, Laxmi Narain and Nanu while they were asleep in their house situated adjacent to Rajender Kumar''s house. It was further stated by Rajender Kumar that at about 11.00 p.m. in the night, Suresh caught hold of Parveen, Mukesh caught hold of Nanu and Ram Singh inflicted knife blows on all the three said persons as a result of which Parveen, Laxmi Narain and Nanu sustained injuries in their chest, abdomen and other parts of their bodies. It was further stated that a number of other persons had also witnessed the occurrence. According to the said statement, the incident had occurred as a result of murderous attack by the said ''relatives'' of Chotey Lal on Nanu, Parveen and Laxmi Narain with a view to settle scores. It was requested that legal action be taken against all the said four persons.

On the basis of the Ruqqa, FIR No. 194/1987 (Exhibit PW-4/B) was registered at Police Station Nand Nagri on 26.08.1987 initially under Sections 307/34 IPC.

The injured persons were taken to General Hospital, Shahdara. Laxmi Narain was discharged on 29.08.1987, Nanu was discharged on 03.09.1987 and Parveen died in hospital on 24.09.1987. The prosecution examined 16 witnesses. However, there are only two alleged eye witnesses, other than the injured Nanu and Laxmi Narain. They are Rajender Kumar (PW-1), who is a neighbour of the deceased Parveen and Premwati (PW-5) who lives in a house opposite to the alleged place of occurrence.

There is an issue with regard to the conviction u/s 302/34 IPC in relation to the death of Parveen. The post mortem report (Exhibit PW-13/A) which has been proved by Dr George Paul, Assistant Professor, Department of Forensic Medicine, Maulana Azad Medical College, indicates the cause of death as due to acute respiratory distress and respiratory failure as a result of acute epiglottitis and laryngitis as diagnosed clinically in a case suffering from fulminate viral hepatitis. More importantly, it was stated that injury No. 3 was likely to cause death in the ordinary course of nature "though in this case has not done so". Injury No. 3 as indicated in the post mortem report is as under:

Partially healed scab separated (in its upper back part) wound of 6x1 cm. present obliquely downwards and forward in the lower outer part of Rt. side abdomen just above the iliac crest with a partially separating infected scab present in the lower front part of the wound; the lower front part being 94 cms. above Rt. heel.

The post mortem report also recorded the opinion of the said PW-13 (Dr George Paul) that no opinion could be given regarding the nature of weapon causing injury No. 3 as the external wound and most of the internal wound had healed in a manner which left little for interpretation on post mortem examination. The testimony of PW-13, who entirely supports his post mortem report and opinion, clearly indicates that the only injury which was likely to cause death in the ordinary course was injury No. 3 on the person of Parveen Kumar. However, the said witness had also given his clear opinion that injury No. 3, though likely to cause death in the ordinary course of nature, had not done so in this case. This, coupled with the fact that the cause of death was clinically diagnosed as fulminate viral hepatitis, clearly establishes beyond doubt that the injuries alleged to have been inflicted by the appellants in the course of the alleged incident did not cause the death of Parveen Kumar. This fact alone, which, unfortunately, was completely overlooked by the trial court, takes the case outside the purview of Section 302 IPC. In fact, the family of provisions starting from Section 299 IPC and ending with Section 304 IPC all require the causing of death of a person by another and such death must amount to culpable homicide as defined in Section 299 IPC. In view of the clear medical evidence, the death of Parveen Kumar has not been caused by the appellant''s alleged act / acts. Consequently, the appellants could not have been booked or convicted under Sections 302/34 IPC. The question, however, would remain as to whether a case is made out against the appellants u/s 307/34 IPC for having inflicted injuries on Parveen Kumar with the intention or knowledge and under such circumstances that, if by that act they had caused the death of Parveen Kumar, they would be guilty of murder.

The prosecution case is that Chotey Lal''s daughter (Giano) was engaged to Parveen and that the engagement was broken by Parveen and because of this, Chotey Lal had a grudge against Parveen. It is because of this grudge against Parveen that the so-called ''relatives'' of Chotey Lal, namely, Suresh, Mukesh, Rajesh and Ram Singh, made a murderous attack on Parveen, Nanu and Laxmi Narain, all of whom received stab injuries. It is important to note that the statements of Nanu and Laxmi Narain were recorded by the police only after their discharge from hospital. The learned Counsel for the appellants contended that the statements ought to have been recorded before Nanu and Laxmi Narain were discharged from hospital and as soon as they are declared fit to make such statements. The non-recording of such statements prior to their discharge gave them time to sit together and confer and to make statements which were mere copies of the statements made by Rajender Kumar. It was, therefore, contended that this is the reason why the statements of PW-1 (Rajender Kumar), PW-2 (Laxmi Narain) and PW-3 (Nanu) were identical in terms inasmuch as they had time to make up their minds and confer amongst themselves before making their statements to the police. Another important circumstance which had been pointed out by the learned Counsel for the appellants was that although Parveen remained in hospital for almost a month as he died on 24.09.1987, no statement was taken from him. No dying declaration was recorded even though he was in hospital for such a long duration before he died. No tangible explanation was forthcoming for not recording his statement.

With this background, it would be appropriate to examine the testimonies of PW-1 (Rajender Kumar), PW-2 (Laxmi Narain), PW-3 (Nanu) and PW-5 (Premwati). PW-1 (Rajender Kumar) reiterated the statement made by him earlier (Exhibit PW-1/A). In cross-examination, he revealed that Laxmi Narain is the mausa of deceased Parveen and that Parveen, Laxmi Narain and Nanu live together in one house. He also revealed that after the breaking of the engagement with Parveen, Giano was married with accused Mukesh and that about 22 days after such marriage, Giano died. He, however, denied this suggestion that Giano had been administered poison through Premwati (PW-5) at the instance of Parveen, Nanu and Laxmi Narain. While he admitted that Premwati lived in front of his house, PW-1 (Rajender Kumar) denied the suggestion that he had any physical relations with her. He further stated that he had seen 15-20 persons standing near their jhuggis. He denied the suggestion that Chotey Lal and his brother-in-law (Shama Charan) had given stab blows to Laxmi Narain, Nanu and Parveen. He, however, admitted that since the date of occurrence, Chotey Lal, Vidyawati, Jagmohan and Shama Charan had left the locality and that the police did not make any enquiries from Chotey Lal, Vidyawati or Shama Charan in his presence. He also stated that he was sleeping outside and so were the injured and the deceased and that their cots were about 4 feet from his cot, Laxmi Narain''s cot being the nearest to him. He stated that Premwati was in her jhuggi at that time.

PW-2 (Laxmi Narain) also stated that about 2-3 months before the occurrence, Parveen had been engaged to Chotey Lal''s daughter (Giano) and that the engagement had broken. As a result of this, Chotey Lal started having a ranjish (grudge). He also stated that Giano died about 25 days after her marriage and was not in a position to state as to whether Chotey Lal had any suspicion on them with regard to her death. He stated that on 25.08.1987 at about 11.00 p.m. in the night, he was sleeping outside, in front of his house in the gali along with other cots on which Nanu and Parveen were sleeping. Mukesh caught hold of him from the side and Ram Singh stabbed him with a knife under the left armpit. Suresh had caught hold of and pressed Parveen down and Ram Singh stabbed him. Nanu was also pinned down by Rajesh and Ram Singh stabbed him also. He also stated that Rajender Kumar, who was lying on cot 3-4 cots away and Premwati, who lived in front of his house, tried to intervene to save them and that as soon as Premwati came near to intervene, she was violently pushed away by the accused persons. In cross-examination, Laxmi Narain (PW-2) revealed that the police did not record his statement and that he did not lose consciousness before reaching the hospital. He disclaimed any knowledge of whether on the date of occurrence, there was a tehraween of the deceased (Giano) and he stated that he did not know whether the accused had gone to the tehraween of Giano or not. He also denied the suggestion that they were stabbed by Shama Charan, Chotey Lal, Jagmohan, etc.

PW-3(Nanu) also stated in his examination-in-chief that about 2 1/2 - 3 months ago, Parveen had been engaged to Chotey Lal''s daughter (Giano). Parveen had broken the arrangement as the moral character of Giano was not good and Chotey Lal harboured a grudge (ranjish) on that account. Giano was subsequently married to Mukesh and she died about 20-25 days after her marriage. Chotey Lal had suspicion on them for the death of Giano. He also reiterated the incident of 25.08.1987 in a similar vein to what PW-2 (Laxmi Narain) had stated. He also stated that Rajender and Parveen tried to save them and that Premwati came out as they were being stabbed and just came over Ram Singh who pushed her away. He also stated that his wife Guddi took him to hospital in a rickshaw. In cross-examination, he stated that he had told the police that his wife had taken him to hospital in a rickshaw, but he was confronted with Exhibit PW-3/DA wherein it was not so recorded. He denied any knowledge of whether on the date of occurrence, there was a tehraween function in respect of the deceased Giano. He also stated that he could not say as to when Shama Charan and Chotey Lal left the locality, but that they had left as he came to know about it. He also stated in cross-examination that after he received the stab injuries, he was fully conscious for about a minute and thereafter he felt darkness and lost consciousness after sitting in the rickshaw.

He regained consciousness the next morning and it is only after his discharge from hospital that he was called from his house to the police station where he made his statement which was recorded by the police. In response to a court question, he stated that he did not know the names of the accused before the date of occurrence and that Rajender told him the names of the accused persons though he knew them by their faces.

PW-5 (Premwati) stated that her house was opposite to the house of Laxmi Narain, Nanu and Parveen, etc. She stated that about a year ago (her testimony was recorded on 05.10.1988) when she returned after working in the house of another around 9.30 p.m., she heard a noise when she was about to go to bed. She came out and saw that Suresh had caught hold of Parveen, Mukesh had caught hold of Laxmi Narain and Nanu was secured by accused Rajesh. Ram Singh stabbed but she could not tell whom he had stabbed. She stated that she tried to intervene and tried to catch hold of accused Ram Singh but he pushed her away and while doing so Ram Singh got pushed against the wall. She further stated that all the accused then went towards the house of Chotey Lal saying that they had settled the score with him. She was cross-examined by the Additional Public Prosecutor on two points, firstly, regarding the conference of the accused with Chotey Lal on the date of occurrence and secondly on the point as to who caused the stab injuries. During such cross-examination, she stated that it was correct that she had stated to the police that Ram Singh had a knife and he stabbed all the three injured Parveen, Laxmi Narain and Nanu. On cross-examination by the learned Counsel for the defence, she stated that the occurrence took place around 11.00 p.m. and that 10-15 persons were present in the gali when she came out of her house. The injured were lying on the cots and she saw the accused securing Parveen, Laxmi Narain and Nanu. Rajender was trying to save them. She also stated that she did not know Rajender from before. Then she volunteered that Rajender lived in front of her house. She denied the suggestion that she was living with Rajender as his keep. She admitted that there was enmity between Parveen, Nanu and Laxmi Narain on the one side and Chotey Lal on the other due to the breaking of the engagement by Parveen. She also stated it to be correct that Chotey Lal had lodged a report against them and that she used to visit the house of Chotey Lal. She also stated that after the death of Giano, Chotey Lal became more inimical against Parveen, etc. She stated that Mukesh is the son-in-law of Chotey Lal, Suresh is the brother of Mukesh, but she did not know the relationship of Ram Singh and Rajesh with Chotey Lal. She also denied the suggestion that Shama Charan and Chotey Lal had stabbed Parveen, Laxmi Narain and Nanu. She stated that she was in the house when the injured were removed to the hospital and did not know who removed them to the hospital. The mohalla people were there who did not come forward out of fear. She further stated that she had seen the injured lying on the cots and went inside the house.

PW-15 (SI Jeevan Lal) was the Investigating Officer. He stated that he met no lady in the hospital thereby implying that Nanu''s wife Guddi was not there. He also stated that the clothes which Rajender was wearing had no blood on them. He further stated that when he reached the spot alongwith Rajender at about 1.30 a.m., he found cots and bedding, but did not take them into possession nor did he photograph, nor did he find any blood on them. He stated that he first inspected the spot at about 2.00 a.m. and that he had apprehended the accused about half an hour later near the park. This factum, however, is contradicted by Constable Jagbir Singh (PW-8), who in his examination-in-chief, stated that he had gone to the site of occurrence where the I.O. had gone and that all the four accused were arrested there and personal search memos were prepared, the memos being PW- 1/B to PW 1/E, which bore his signatures. In cross-examination, PW-8 has further stated that Ram Singh was arrested from 331, Sunder Nagri. PW-8 had also stated that Ram Singh was not a resident of Sunder Nagri.

Coming back to the testimony of PW-15 (SI Jeevan Lal), he stated in cross-examination that it was correct that there was enmity between Chotey Lal''s party on the one side and Nanu, etc. on the other side and had come to know of this during investigation. He also stated that it was correct that Ram Singh had no enmity with Laxmi Narain, Parveen and Nanu. He further stated that he found no blood on the clothes of any of the accused and no weapon of offence was recovered. Ram Singh had made no disclosure statement with regard to the weapon of offence. Importantly, he stated that he did not record the statement of Chotey Lal, Shama Charan, his wife Vidyawati and Jagmohan. He denied the suggestion that after having found out that Shama Charan and Chotey Lal were guilty, he let them off and instead falsely implicated the accused. In further cross-examination, he stated that no blood had fallen on the spot. He also stated that he continued visiting the hospital after 2nd September, 1987 but could not contact the doctor till the death of Parveen.

A review of the evidence referred to above makes it clear that even as per the prosecution case, there was no enmity between Ram Singh and Rajesh on the one hand and Parveen, Laxmi Narain and Nanu on the other. If there was any animosity, it was between Chotey Lal and Parveen. The prosecution has not been able to indicate as to how Ram Singh and Rajesh, the appellants herein, if at all, were related to Chotey Lal. Their presence at the spot as also at Chotey Lal''s house is not explained by the prosecution. This circumstance is very material inasmuch as Ram Singh and Rajesh are not residents of the locality. The questions that remain unanswered on the basis of the prosecution evidence are: Why did Ram Singh and Rajesh come to the locality ? Why did they attack Parveen, Laxmi Narain and Nanu ? It is not the case of the prosecution that they on their own intended to inflict injuries on the said persons and or attempt to murder them. The prosecution case rests on the premise that because of the animosity between Chotey Lal and Parveen, the appellants attacked Parveen, Laxmi Narain and Nanu. At the same time, Chotey Lal has not at all been implicated by the prosecution. Nor has the prosecution interrogated Chotey Lal or his brother Shama Charan, both of whom, as per the prosecution witness themselves, left the locality soon after the incident. It is difficult for us to imagine a situation where Ram Singh and Rajesh, who did not bear any ill feeling towards Parveen, Laxmi Narain and Nanu, would take it upon themselves to settle the scores of a dispute between Chotey Lal and Parveen in which they were not at all involved. It is not the case of the prosecution that Ram Singh and Rajesh were contract killers who had been hired by Chotey Lal to carry out the murderous attack on Parveen, Laxmi Narain and Nanu. It is also not the case of the prosecution that Chotey Lal asked Ram Singh and Rajesh to do so. It, therefore, is highly improbable that Ram Singh and Rajesh, who did not even allegedly act at the behest of Chotey Lal, would take it upon themselves alongwith other co-accused to launch the murderous attack as alleged by the prosecution. The prosecution case becomes even more improbable because while it has come in evidence that Chotey Lal and Shama Charan left the place of occurrence soon after the alleged incident, Ram Singh and Rajesh were arrested in the vicinity.

According to the Investigating Officer, SI Jeevan Lal (PW- 15), the accused were arrested at around 2.30 a.m. near the park. However, according to Constable Jagbir Singh (PW-8), who accompanied the Investigating Officer when he went to the site of occurrence, stated that all the four accused were arrested there and personal search memos were prepared. The search memos in respect of Rajesh is Exhibit PW-1/C and the search memo in respect of Ram Singh is Exhibit PW-1/D. In both the search memos, Constable Jagbir Singh (PW-8) has signed as a witness. As noted above, in examination-in-chief, Constable Jagbir Singh (PW-8) has categorically stated as under:

From the police station, I went to the site of occurrence where I.O. had gone. All the four accused were arrested there and personal search memos were prepared. The memos Ex. PW1/B to E bear my signatures.

Moreover, in cross-examination, this witness, i.e., Constable Jagbir Singh (PW-8) has stated that Ram Singh was arrested from 331, Sunder Nagri. It may be recalled that 331, Sunder Nagri is the house of Laxmi Narain and Nanu. So, while the Investigating Officer stated that the accused were arrested near a park, Constable Jagbir Singh (PW-8) has clearly stated that the accused were arrested at the site of occurrence and in cross-examination, he stated that Ram Singh was arrested from 331, Sunder Nagri. The incident allegedly took place at about 11.00 p.m. on 25.08.1987. The arrest of the accused is said to be made around 2.30 a.m. on 26.08.1987. It is difficult to believe that the appellants Ram Singh and Rajesh, if they were involved in the incident, would have remained at the scene of occurrence for three and a half hours, particularly when they were not residents of the locality and they were not put under restraint by any person. What is more intriguing is that Ram Singh is said to have been arrested from 331, Sunder Nagri which is the house of Laxmi Narain and Nanu. What was he doing there at 2.30 a.m., three and a half hours after he is alleged to have stabbed not only Parveen, but also Laxmi Narain and Nanu ? This question remains unanswered and the benefit would definitely flow to the defence. The presence of Ram Singh and Rajesh in the locality is more probable in view of the defence version of them having come to Chotey Lal''s house to attend the tehraween ceremony of deceased Giano. The prosecution case is fraught with mere probabilities and on this score cannot be said to conclusively lead to the guilt of the appellants.

There are further problems with the prosecution case. First of all, Chotey Lal and Shama Charan have not been interrogated at all. This is important because it was Chotey Lal who had a motive, if at all, to cause injuries to or murder Parveen. Secondly, Parveen was in hospital from 25.08.1987 till 24.09.1987 when he died due to viral hepatitis, but his statement / dying declaration was not recorded. The only explanation which is forthcoming with regard to the non- recording of Parveen''s statement is in the cross-examination of PW-15 (SI Jeevan Lal) that he did not record the statement of Parveen till his death and he was never fit for statement. He, of course, denied the suggestion that he did not deliberately record his statement. However, in further cross-examination, the said witness, i.e., SI Jeevan Lal (PW- 15) stated that he continued visiting the hospital after 2nd September, but could not contact the doctor till the death of Parveen. From these statements, it is clear that the Investigating Officer (SI Jeevan Lal) had not bothered to contact the doctor with regard to the fitness of Parveen for recording his statement. Without having contacted the doctor, how could the Investigating Officer come to the conclusion that he was not fit for making a statement. This is another indication of the slip-shod and callous manner in which the Investigating Officer has investigated this case. A person has been stabbed and is lying in hospital for about a month, yet he has not bothered to contact the doctor who is looking after Parveen. It is difficult to believe that the Investigating Officer could not contact the doctor in a space of one month !

Thirdly, even the statements of Laxmi Narain and Nanu were not recorded while they were in hospital. Laxmi Narain was discharged on 29.08.1987 and Nanu was discharged on 03.09.1987. PW-2 (Laxmi Narain), as indicated above, clearly stated that the police did not record his statement although he had not lost consciousness before reaching hospital.

Nanu (PW-3) has also stated that after having received the injury, he was fully conscious for about a minute and thereafter felt darkness and lost consciousness after sitting in the rickshaw. He, however, stated that he regained consciousness in hospital next morning, i.e., on 26.08.1987. He remained in hospital till 03.09.1987 when he was discharged. So, as per Nanu''s statement itself, he was fully conscious from 26.08.1987 to 03.09.1987, yet his statement was not recorded by the Investigating Officer. These circumstances lend credence to the arguments advanced on the part of the defence that Laxmi Narain and Nanu had opportunity to confer with Rajender and others before having their statements recorded. It is an admitted position that the statements of Nanu and Laxmi Narain were recorded after their discharge from hospital. An important circumstance which has not at all been noticed by the trial court is that in the course of his cross-examination, Nanu (PW-3) had stated to the court that he did not know the names of the accused before the date of occurrence and that Rajender told him the names of the accused persons. He, however, knew them by their faces. He also stated that he did not identify the accused in any parade before the Magistrate. This fact in itself indicates that prior to making the statement (Exhibit PW-3/DA), Nanu had conferred with Rajender (PW-1). This is further established by the fact that in the statement (Exhibit PW-3/DA), the names of Rajesh and Ram Singh figure. It can be recalled that prior to the incident, Nanu did not know the names of the accused. Shortly after the incident, Nanu was taken to hospital and he remained unconscious till the next day in the hospital. He was discharged on 03.09.1987 and after his discharge the said statement (Exhibit PW-3/DA) was recorded wherein the names of the accused are mentioned. In his statement before court, he has clearly indicated that the names of the accused persons were supplied to him by Rajender. The obvious inference is that the statement (Exhibit PW-3/DA) was made by Nanu after conferring with Rajender. To make matters worse for the prosecution, PW-3 (Nanu) has also stated that he did not identify the accused in any parade before the Magistrate. So, here, we have a situation where an injured person is giving names of the accused whom he did not know at the time of occurrence and who were not subjected to any identification before the Magistrate. This is yet another circumstance which goes towards demolishing the prosecution case against the present appellants.

Fourthly, Rajender (PW-1), who is the architect of the entire prosecution case has been contradicted by the other prosecution witnesses. In his testimony PW-1(Rajender) stated that he and Nanu''s wife took the injured to hospital in two rickshaws. He further stated in cross-examination that he had not told the police that the injured were removed to the hospital in auto rickshaws. He stated that he had helped the injured in boarding the auto rickshaw, but he admitted that his clothes did not get blood stains. Insofar as the statement that Nanu''s wife also went to the hospital with them is concerned, the same is contradicted by PW-15 (SI Jeevan Lal) when he, in his cross-examination, stated that he did not meet any lady in the hospital. Furthermore, in his testimony before court, Rajender Kumar (PW-1) has not stated that when the incident was taking place, he or Premwati had attempted to intervene and save the persons who were being attacked from the assailants. But, PW-5 (Premwati) stated that she tried to intervene and catch hold of Ram Singh but he pushed her away. In cross-examination, she further stated that Rajender was trying to save Parveen, Laxmi Narain and Nanu. So, while PW-1 (Rajender Kumar) does not mention the presence of Premwati (PW-5) nor of any attempt on his part to save the persons who were being attacked, Premwati, who is stated to be an eye witness, states that not only did she see Rajender (PW-1) trying to save Parveen, Laxmi Narain and Nanu, but that she also intervened and tried to catch hold of the accused (Ram Singh) who pushed her away. It is obvious that the two witnesses have contradicted themselves. This contradiction cannot be brushed aside as a minor contradiction inasmuch as it relates to the very incident itself. A person who intervenes in an incident and tries to save persons from assailants would not forget to mention it. An eye witness who sees such an incident would also not forget to mention the presence of another person, such as Premwati who not only allegedly intervened in the incident, but also tried to catch hold of Ram Singh, the so-called main assailant. The only conclusion that can be derived from this is that a conviction cannot be based on the testimony of these two witnesses.

Fifthly, Premwati (PW-5) stated in her examination-in-chief that she heard a noise when she was going to bed and then she came out. She stated that Parveen suffered stab injuries and so did Laxmi Narain and Nanu. But she also stated:

I do not know how they suffered injuries

She also stated:

Ram Singh stabbed, but I cannot tell whom he had stabbed.

In cross-examination, she stated that:

The occurrence took place around 11 P.M. 10-15 persons were present in the Gali when I came out. The injured were lying on the cots.

These statements are clearly not that of an eye witness. It is clear that even as per her on testimony, she came out of her house after she heard a noise. She is unable to tell whom Ram Singh stabbed. She is unable to indicate how Parveen, Laxmi Narain and Nanu received injuries. In fact, she states that when she came out of her house, there were already 10-15 persons present in the gali and the injured were lying on the cots. She has further stated that when she had seen the injured lying on the cots, she got nervous and went inside the house. So, as per her own testimony, on hearing a noise, she came out of her house, 10-15 unnamed persons were already standing in the gali, the injured were lying on the cots and on seeing the injured so lying on the cots, she got nervous and went inside her house. It is obvious that she is not an eye witness of the alleged incident.

Sixthly, the testimonies of PW-2 and PW-3 are nothing but parroted versions of the testimony of Rajender Kumar (PW-1) whom we have already discarded as an untrustworthy witness.

For all the above reasons, we are of the view that the trial court has erred in convicting the present appellants under Sections 302/34 and 307/34 IPC with regard to the alleged murder of Parveen and attempted murder on Laxmi Narain and Nanu. At the outset, we had pointed out that by virtue of the post mortem report itself, this was not a case of murder and we were only left to examine as to whether a case of attempt to murder or some other lesser offence has been made out. After examining the testimonies and other evidence on record, we are of the clear view that the conviction of the appellants cannot be sustained either under Sections 302/34 or 307/34 IPC or any other lesser offence.

Consequently, we allow the appeals and acquit the appellants. Their bail bonds are cancelled and the sureties stand discharged.