Vishwajit and Another vs State

S.P. Garg, J.—The appellants Vishwajit @ Bittoo and Ajay @ Ajji have preferred the appeal against the judgment and order on sentence dated 12.08.1998 of learned Additional Sessions Judge in SC No. 21/1996 by which they were convicted for committing offence punishable u/s 302/34 IPC and sentenced to undergo imprisonment for life with a fine of Rs. 2,000/- each. The prosecution version as unfolded during trial is as follows:

Daily Diary (DD) (Ex. PW-8/N) was recorded at PS Shakarpur on 04.09.1992 at about 09.10 P.M. when Const. Om Prakash on duty at LNJP Hospital informed that Sanjay S/o Om Prakash had admitted Suresh S/o Ram Singh in injured condition. The investigation was assigned to SI Bhim Singh who along with Const. Dilbagh Singh and Const. Basti Ram reached there and collected the MLC. Injured Suresh had already expired. Mukesh, deceased''s brother met SI Bhim Singh (IO) at the hospital and he recorded his statement (Ex. PW-1/A). The IO made endorsement (Ex. PW-8/A) and sent the rukka through Const. Dilbagh Singh for lodging the First Information Report (FIR). In the statement, Mukesh disclosed that on 04.09.1992 at about 08.00 P.M. the deceased had accompanied PW Madan and PW Sanjeev to go out for strolling. Having apprehension of some quarrel, he followed them keeping a distance of ten paces. When they reached near Krishna Mandir, Ganesh Nagar Chowk, Vishwajit @ Bittoo, Ajay @ Ajji, Mohan, Vijay and Sandeep Kumar @ Pappal already present there surrounded his brother. Vijay and Sandeep Kumar @ Pappal caught hold the victim and Vishwajit @ Bittoo and Ajay @ Ajji stabbed him with knives. In the meantime, Mohan arrived with a hockey and hit on his waist. Thereafter, all the assailants fled the spot. He sent the victim to the hospital through Madan and Sanjay.

During the course of investigation, the Investigating Officer prepared site plan. Since the informant had indicted the accused persons, the police set out to arrest them. They were arrested and their disclosure statements were recorded. The accused Vishwajit @ Bittoo and Ajay @ Ajji pursuant to their disclosure statements got recovered ''Kripan'' and ''Katari'' from a jhuggi which were seized. The IO sent the exhibits to Forensic Science Laboratory (FSL) and collected its reports subsequently. He recorded the statements of the concerned witnesses conversant with the facts. After completing the investigation, a charge-sheet was filed against the appellants along with Sandeep Kumar @ Pappal, Vijay and Mohan Singh for committing the offences under Sections 302/120B read with Section 34 IPC. They were duly charged and brought to trial.

To substantiate the charges, the prosecution examined sixteen witnesses in all. The statements of the accused persons were recorded u/s 313 Cr.P.C. They denied their involvement in the commission of the offence and pleaded false implication. They examined Sanjay Bhatia as DW-1 in their defence.

After appreciating the evidence and considering the rival contentions of the parties, the Trial Court by the impugned judgment convicted both the appellants Vishwajit @ Bittoo and Ajay @ Ajji for committing the offence punishable under Sections 302/34 IPC and acquitted Mohan Singh, Vijay and Sandeep Kumar @ Pappal. Aggrieved by the said orders, the appellants have come in appeal.

We have heard Ld. APP for the State who has justified the findings recorded by the learned Trial Court against the appellants. He has urged that no interference is called for in the impugned judgment which is based upon the ocular testimony of PW-1 (Mukesh Kumar), the real brother of the deceased. He has fully supported the case of the prosecution and no material contradictions have been elicited in his cross-examination to shatter his testimony. The rukka was recorded on his statement, in which he described graphic details of the incident and attributed specific role to the each accused in inflicting injuries on the person of the deceased. The accused got recovered the weapons of the offence pursuant to their disclosure statements. PW-1 had no ulterior motive to make false deposition against the accused. Being the real brother of the deceased, he would not intend to screen the real culprits and must be interested to see that the real offenders are brought to book. Close relationship of a witness with the victim far from being a foundation for criticism offender is often a sure guarantee of truth. Turning hostile of the independent witnesses itself cannot be a ground for the acquittal of the accused.

We have considered the submissions and have scrutinized the Trial Court record. Undoubtedly, the case of the prosecution is based upon eye witnesses account. The prosecution claimed that the incident was witnessed by PW-1 (Mukesh Kumar), PW-2 (Sanjeev) and PW-3 (Madan Kumar Pal). However, during the trial, PW-2 (Sanjeev) and PW-3 (Madan Kumar Pal) did not support the prosecution and turned hostile. They did not assign any role to the accused in causing injuries to the deceased. They denied their presence at the spot at the time of occurrence. They were declared hostile and were cross-examined by APP with the Court''s permission. However, nothing material emerged in their cross-examination to point an accusing finger against the accused.

We are left with the sole testimony of PW-1 (Mukesh Kumar). We are conscious that there is no rule either of law or prudence that family members of the deceased are incompetent witnesses. Their evidence is not to be jettisoned merely on the ground of interestedness, provided it is otherwise credible and fits in with the broad probabilities of the case. However, it had to be viewed with required and necessary caution. In this context, it was held, by the Supreme Court in " Anvaruddin and others Vs. Shakoor and others, that :

It is well settled law that evidence of witnesses to the occurrence cannot be thrown overboard merely because they are interested and partisan witnesses. All that the law demands is that their evidence should be scrutinised with great care and caution to safeguard against the normal temptation to falsely implicate others.

On scanning the Trial Court record, it reveals that the conduct of the witness at the time of incident and soon thereafter is highly unnatural, unusual and unreasonable and makes his presence at the spot highly suspicious. His testimony and conduct does not inspire confidence and merit acceptance that he was an eye witness to the incidence. In the testimony, PW-1 (Mukesh Kumar) proved the version given by him to the police in his statement (Ex. PW-1/A) recorded at the earliest in which he narrated vivid description of the assailants and assigned specific role to them. Admittedly, PW-1 (Mukesh Kumar) did not intervene to rescue his real brother when allegedly the accused along with his associates were stabbing him repeatedly on his vital organs. Neither he raised alarm nor did he chase the assailants. He did not report the incident to the police. He even did not attempt to take the injured to the hospital and conveniently returned to his residence to inform his family members. In his deposition, he did not elaborate at what time he reached the hospital. Even after reaching the hospital, he did not report the incident to the duty constable present there. Only when PW-8 (SI Bhim Singh) reached the hospital on getting information vide DD No. 64B, he purportedly narrated the incident to him. PW-1 (Mukesh Kumar) did not explain the delay in reporting the serious incident to the police. His conduct at the time of incident about what he did at that time corrodes the credibility of his version i.e. he was an eye witness. His conduct is a strong indicator that he had not witnessed the incident as claimed by him. In this case it is not one aspect alone, but several aspects relating to his conduct, which compel us to record that he was not an eye witness. If the behaviour of a person claiming to be an eye witness is contrary to the course in which a similar situated person would normally behave and there is no satisfactory explanation for such an abnormal conduct, it will not be safe to base the conviction solely on the basis of his testimony, since his very credibly stands impeached and becomes suspect on account of such behaviour. The conduct of a witness can be termed as unnatural when the reaction demonstrated by him is so improbable or so inconceivable that it cannot be expected from a human being placed in similar situation.

The incident occurred at about 08.00 P.M. The injured was got admitted by Sanjay S/o Om Prakash at 08.40 P.M. PW-6 (Const. Om Prakash) informed the duty officer PS Shakarpur and DD No. 64B was recorded in this regard at 09.10 P.M. However, the rukka was sent for registration of the case at 11.10 P.M. PW-8 (SI Bhim Singh) did not explain the inordinate delay of three hours in sending the rukka to the police station.

In the case Meharaj Singh (L/Nk.) Vs. State of U.P., the Supreme Court has held :

X X X

FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story....

Earliest reporting of the occurrence with all its vivid detail gives an assurance regarding truth of its version. Deliberate delay in lodging the complaint/FIR is always fatal. It appears that the IO was deliberately marking time with a view to give a particular shape to the case.

Even the prosecution did not place complete reliance on PW-1, Mukesh Kumar''s deposition before the Court and got him declared hostile when he denied the arrest of accused other than Pappal in his presence. He also denied recovery of weapons of offence pursuant to the disclosure statement of the accused in his presence. He did not support the prosecution that in his supplementary statement (Mark ''A''), he had named three more persons i.e. Dilip, Ved and Kamal.

The prosecution did not examine Pooran, other brother of the deceased to corroborate the testimony of PW-1 (Mukesh Kumar). Nothing emerged on record that PW-1 (Mukesh Kumar) on return to the house informed any other family member including Pooran. The Investigating Officer did not record statement of any family member of the deceased to prove that on that day at about 08.00 P.M. PW-2 and PW-3 had taken the deceased with them or that PW-1 had followed them. In his deposition, PW-1 claimed that he had lifted the victim after the incident. However, for the reasons known to the investigating agency, his blood stained clothes were not seized to establish his presence at the spot. No blood was lifted from the spot and the Investigating Officer only in the testimony explained that due to rain it had washed away. No other witness deposed in that regard. Considering the vital discrepancies in the deposition of PW-1 and his unnatural behavior, we are of the view that no reliance can be placed on his testimony to base conviction.

The prosecution had charge-sheeted Sandeep Kumar, Vijay and Mohan Singh also along with the accused for committing the murder in furtherance of their common intention. PW-1 had also attributed specific role to them. However, on the same set of evidence, the Trial Court did not believe the prosecution case and acquitted them. The evidence against the appellants is verbatim version which was taken into consideration by the Trial Court with regard to the acquittal of Mohan, Vijay and Sandeep Kumar @ Pappal and therefore, the case of the appellants cannot be decided on any other scale and should have been treated at par for giving benefit of doubt.

The IO did not investigate the genesis of the quarrel among the deceased and the accused and his associates which took place in the morning that day. It is not certain as to who had sustained injuries in the said occurrence. Ld. APP brought our attention to DD No. 10A dated 04.09.1992 (Ex. PW-10/A) recorded by Smt. Raj Dulari, mother of the accused Ajay at 08.50 P.M. at PS Shakarpur and urged that it established his identity (of the accused Ajay) who had inflicted injuries to the deceased in the said quarrel. PW-10 (Insp. Anil Sharma) had gone to inquire the contents of DD No. 10A (Ex. PW-10/A) but did not find any person against whom the complaint was lodged. He returned to the police station and made arrival entry vide DD No. 17A. In our view, contents of DD No. 10A do not reveal anything about the incident. The prosecution did not cite Smt. Raj Dulari as a witness to throw light as to how and under what circumstances she had reported the matter to the police. It is not clear from the contents of the DD as to when the quarrel took place. It seems that this DD pertains to the quarrel that took place in the morning of 04.09.1992.

The alleged recoveries of weapons of offence pursuant to the disclosure statements of the accused have not been proved beyond reasonable doubt. PW-1 (Mukesh Kumar) whose signatures appeared on the seizure memos did not support the prosecution and denied recovery of any such weapon in his presence. Moreover, no human blood was detected on these weapons and they were not sent to Forensic Science Laboratory (FSL) to find out if it contained blood of the deceased. These weapons were not shown to the autopsy doctor to ascertain if injuries found on the deceased were possible with those weapons.

PW-1 (Mukesh Kumar) in the cross-examination admitted that he had filed document (Mark ''A'') bearing his signatures at point ''A'' & ''B'' at the time of consideration of bail before the Trial Court. However, he gave an excuse that it was done under threat. Contents of document mark ''A'' reveal that the witness had exonerated the accused Pappal.

There is inconsistent version about the place where the statement of the informant was recorded. The IO has deposed that it was recorded at the LNJP Hospital whereas PW-1 stated that he had gone to the police station and his statement (Ex. PW-1/A) was recorded there. The prosecution has failed to reconcile the inconsistent versions. In the light of above discussion, we are of the considered view that the Trial Court was not justified to convict the appellants on the scanty evidence produced before it. The impugned judgment of the Trial Court cannot be sustained and is set aside. The appeal is allowed. The bail bond and the surety bonds of the appellant, Vishwajit stand discharged.