Crl.A.No.467/2009 Page 1 of 23 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: November 26, 2009 + CRIMINAL APPEAL NO.467/2009 RAJA RAM & ANR. ..... Appellants Through: Mr. Tarun Sharma, Advocate Versus THE STATE ..... Respondent Through: Mr. Pawan Sharma, APP CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? 3. Whether the judgment should be reported in Digest ? SANJAY KISHAN KAUL, J.(ORAL) 1. The appellant and his co-accused Ramesh Kumar were prosecuted in Sessions Case No.01/03 emanating from FIR No.286/02, Police Station Mandir Marg on charges under Section 302 read with Section 34 IPC and Section 27 of the Arms Act for having committed the murder of Jagat Pal (hereinafter referred to as “deceased”) by using knives in contravention of Section 5 of the Arms Act. Vide impugned judgment dated 08.04.2008, the appellant and the co-accused were held guilty of offences punishable under Sections 302/34 IPC and Section 27 of the Arms Act and vide order Crl.A.No.467/2009 Page 2 of 23 dated 11.04.2008, they were sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- for the offence punishable under Section 302 IPC and also to undergo RI for the period of one year and to pay a fine of Rs.1,000/- for the offence punishable under Section 27 of the Arms Act. Feeling aggrieved by the impugned conviction and order on sentence, the appellant has preferred this appeal. 2. Briefly put, case of the prosecution is that on 22.08.2002, ASI Suresh Chand(PW25) was present on duty in the area of Baba Kharak Singh Marg along with Constable Subash Giri (PW4), Constable Jasbir Singh (PW16) and Constable Amrit Singh (PW17). After deputing Constable Subash Giri and Constable Jasbir Singh on traffic control duty at T-point, Baba Kharak Singh Marg, Near Hanuman Mandir, ASI Suresh Chand (PW25) proceeded for motor cycle patrol along with Constable Amrit Singh (PW17). At around 11:25 am, in front of petrol pump, Baba Kharak Singh Marg, one person informed ASI Suresh Chand that two persons were stabbing a person with “churri” in the side lane near Haryana Emporium. ASI Suresh Chand informed the police station and reached near Haryana Emporium on Baba Kharak Singh Marg, where he saw two persons, whose names were later on revealed as Raja Ram and Ramesh Kumar, stabbing a man, aged about 35 years and they were saying that they would kill him for stealing their smack on daily basis. On seeing the police, both of them fled from the spot. They were chased by Crl.A.No.467/2009 Page 3 of 23 ASI Suresh Chand and Constable Amrit Singh. Constable Subhash Giri and Constable Jasbir Singh also ran after the accused persons. Constable Subhash Giri apprehended accused Ramesh Kumar at Hanuman Lane and Constable Jasbir Singh apprehended the appellant Raja Ram near the Masjid at Connaught Place. Both the accused were holding blood-stained “churries” in their hands. By the time ASI Suresh Chand and the Constables brought the accused persons to the spot of occurrence, the injured had already been removed to the RML Hospital by a PCR Van. 3. Inspector Ram Kishan (PW28) and SI Krishan Lal(PW15), on receipt of information also reached at the spot. On learning that the deceased has been removed to RML Hospital, PW28 Inspector Ram Kishan left SI Krishan Lal (PW15) to guard the spot and went to the hospital where he learnt that the deceased had been declared brought dead. 4. PW28, Inspector Ram Kishan returned to the spot of occurrence and recorded the statement Ex.PW25/A of ASI Suresh Chand(PW25). He appended his endorsement Ex.PW28/A detailing the factual situation and sent it to the police station through Constable Gajender Singh (PW22) for the registration of the case. On the basis of the said Rukka, formal FIR No.286/02 (Ex.PW8/A) was recorded at 2:45 pm on 22.08.2002. 5. From the spot of occurrence, sample control earth and blood stained earth were lifted by the Investigating Officer vide memo Ex.PW4/C. Police Crl.A.No.467/2009 Page 4 of 23 photographer, Head Constable Ravinder Kumar from Crime Team was summoned and he took photographs of the spot Exhibits PW9/A1 to PW9/A24 from various angles, negatives whereof are Exhibits PW9/A25 to PW9/A48. 6. SI Chandrika Prasad (PW1), accompanied by Constable Kuldeep Chand (PW5), took both the accused persons to RML Hospital, where their medical examination was conducted by Dr. P.K.Nayak (PW26) and no injuries were found on their persons. Their MLCs are Exhibits PW26/A and PW26/B. Blood samples of both the accused and the clothes which they were wearing at the time of commission of offence, were handed over to the police at the hospital and the same were seized vide memo Ex.PW7/A. 7. On 26.08.2002, the dead body of the deceased was sent for post mortem examination. Dr. Amit Kochar(PW21) and Dr. Sumit Seth( PW23) conducted post mortem examination and gave their report Ex.PW21/A, which recorded that eight ante mortem injuries were found on the person of the deceased and the cause of death was hemorrhagic shock and the injury Nos.1 and 2 noted in the post mortem report were found sufficient to cause death in the ordinary course of nature, individually as well as collectively. Blood-stained clothes of the deceased and his blood sample gauge were handed over to the police. Crl.A.No.467/2009 Page 5 of 23 8. The blood-stained clothes of the accused persons and the “churries” recovered from them were sent for serological examination and as per report of serological examination Exhibits PW28/C, PW28/D and PW28/E, the blood group of the deceased was „B‟ and human blood group „B‟ was detected on the clothes of the deceased and accused persons. Though human blood was detected on the “churries” (knives), the blood group thereon could not be ascertained. 9. On completion of investigation, charge sheet was filed against the appellant and his co-accused under Section 302 read with Section 34 IPC and Section 27 of the Arms Act. 10. ASI Suresh Chand, PW25 deposed in the Court that on 22.08.2002 at about 11:15 am, a public person had informed him and Constable Amrit Singh that two persons were stabbing a man near Haryana Emporium and on reaching the spot he saw that the accused persons, holding “churries” (knives) in their hands, were stabbing the deceased and saying that they would kill him as he used to steal their smack on daily basis. The clothes of the accused persons were stained with blood. On seeing the police they tried to flee, but were apprehended by Constable Subash Giri and Constable Jasbir Singh respectively. The blood-stained “churries” were recovered from the possession of the accused persons respectively. Crl.A.No.467/2009 Page 6 of 23 11. Const. Amrit Singh PW-17 deposed that on 22.08.2002 at about 11.25 AM a public person had stopped him and ASI Suresh Chand and informed them that two persons were stabbing a man near Haryana Emporium; that on reaching the spot he saw the accused persons holding knives in their hands were stabbing and exhorting the deceased; that the clothes of the accused persons were stained with blood; that when the accused attempted to flee, Const. Subash Giri apprehended accused Ramesh Kumar at Hanuman Mandir Lane and Const.Jasbir Singh apprehended appellant Raja Ram at the rear of the mosque; that one blood stained knife each was recovered from the possession of the accused persons. 12. Const.Subash Giri PW-4 deposed that on 22.08.2002, he along with Const. Jasbir Singh was regulating traffic at T-point at Hanuman Mandir lane, when at about 11.30 A.M. he heard the alarmed voices of ASI Suresh Chand and Const.Amrit Singh and saw them chasing the accused persons; that one of the accused person was running towards Hanuman Mandir lane while the other was running towards a mosque; that he chased accused Ramesh Kumar who was running towards Hanuman Mandir lane and apprehended him; that the accused Ramesh was holding a blood stained knife in his hand and his clothes Crl.A.No.467/2009 Page 7 of 23 were also stained with blood at the time of his apprehension; that the other accused person was apprehended by Const. Jasbir Singh . 13. Const.Jasbir Singh PW-16 deposed that on 22.08.2002 he along with Const. Subash Giri was regulating traffic at T-point at Hanuman Mandir lane, when at about 11.35-11.40 A.M. he heard loud voices coming from the direction of Haryana Emporium and saw that the accused persons, who were holding knives in their hands and whose clothes were stained with blood, were running at a fast speed; that he started to chase the accused person who was running towards the mosque and apprehended him at the rear of the mosque; that the other accused person was apprehended by Const.Subash Giri; that the appellant Raja Ram was holding a blood stained knife at the time of his apprehension. 14. Insp. Ram Kishan PW-28 deposed that the endorsement Ex.PW- 28/A was recorded by him on the basis of the statement Ex.PW-25/A of ASI Suresh Chand. 15. SI Krishan Lal PW-15 who had assisted in the investigation at the spot on the date of the incident deposed that the accused persons had already been apprehended by Const. Subash Giri and Const. Jasbir by the time he had arrived at the spot; that on reaching the spot he found Crl.A.No.467/2009 Page 8 of 23 that the clothes of the accused persons were stained with blood and that huge quantity of blood was lying at the spot. 16. In his statement under Section 313 Cr.P.C., the appellant denied the prosecution version. He explained that on 22.08.2002, he was busy in his „kabari‟ work in Haryana Emporium. One police officer came there and took him to the police station on the pretext that some cleaning work was required to be done at the police station. After some time, his signatures and thumb marks were obtained on some written and blank papers and he was compelled to hold a knife in his hand and on the next day he was produced in the court. Thus, he claimed himself to be innocent. 17. Believing the testimonies of the police officials and holding that the presence of human blood of 'B' group on the clothes of the appellant and presence of human blood on the knife recovered from the possession of the appellant lends corroboration to the case of the prosecution, the learned Trial Judge has convicted the appellant of committing offences punishable under Section 302/34 IPC and Sections 27/54/59 of the Arms Act. Similarly, on the same set of reasoning the co-accused has also been convicted. Crl.A.No.467/2009 Page 9 of 23 18. We may note at the outset that the co-accused Ramesh Kumar whose role is almost similar to that of the appellant had also preferred an appeal against the impugned judgment in Crl.A. No.478/2008, which was dismissed by a Co-ordinate Bench of this Court vide its judgment dated 26.02.2009. Ramesh Kumar preferred an SLP against the aforesaid judgment, which was dismissed in limine. 19. The first submission advanced by learned counsel for the appellant against the impugned judgment is that as per the evidence on record, 10 to 15 persons had collected at the time of the incident, despite that not even a single witness has been cited or examined by the prosecution. Therefore, no reliance should be placed upon the evidence of the police officials. 20. In this regard, it would be useful to quote the following observations of the Hon'ble Supreme Court in the decision reported as Sarwan Singh v State of Punjab (2003) 1 SCC 240:- “As regards the examination of independent persons or witnesses, we would do well to note a decision of this Court in Ambika Prasad and Anr. v. State (Delhi Admn.) (2002) 2 SCC 646, wherein this Court in paragraph 12 observed: "12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of the incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of PW5 and PW7. This submission also deserves to be rejected. It is known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases Crl.A.No.467/2009 Page 10 of 23 where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournment in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with a similar contention in State U.P. v.Anil Singh (1988 Supp SCC 686), this Court observed:(SC pp. 691-92, para 15) "In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable." The test of creditworthiness and acceptability in our view, ought to be the guiding factors and if so the requirements as above, stand answered in the affirmative, question of raising an eyebrow on reliability of witness would be futile. The test is the credibility and acceptability of the witnesses available - if they are so, the prosecution should be able to prove the case with their assistance. Coming to the contextual facts once again, while it is true that there is no independent witness but the evidence available on record does inspire confidence and the appellant has not been able to shake the credibility of the eye-witnesses. There is not even any material contradiction in the case of the prosecution.” 21. The legal position which emerges from the afore-noted decision is that the factum of non-examination of public/independent witnesses is not fatal to the case of the prosecution in every case. It depends upon the additional factor whether the evidence led by the prosecution Crl.A.No.467/2009 Page 11 of 23 inspires confidence or not. If the evidence led by the prosecution is otherwise credible and trustworthy, the non-examination of independent/public witness is of no consequence. 22. The second submission advanced by the learned counsel for the appellant is that only evidence which connects the appellant with the crime of murder of Jagat Pal are the statements of the police officials and that it is not safe to rely upon the evidence of the police officials to sustain the conviction of the appellant as they obviously are interested in the success of the case. 23. A similar contention was repelled by the Hon'ble Supreme Court in Kalpnath Rai v State (1997) 8 SCC 732 in the following terms:- “As a legal proposition it was argued that it would be unsafe to base a conclusion on the evidence of police officers alone without being supported by at least one independent person from the locality. To reinforce the said contention Shri V.S. Kotwal, Senior Advocate cited the decision of this Court in Pradeep Narayan Madgaonkar and Ors. v. State of Maharashtra (1995) 4 SCC 255 wherein want of independent witnesses of the locality rendered suspicious a raid conducted by the police. There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non-examination of independent witness or even presence of such witness during police raid would cast an added duty on the court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that court must reject the prosecution version solely on the ground that no independent witness was examined. In Pradeep Narain Madgaonkar (supra) to which one of us (Mukherjee, J) is a party, the aforesaid position has been stated in unambiguous terms, the relevant portion of which is extracted below: Crl.A.No.467/2009 Page 12 of 23 Indeed, the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigation or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation; requires greater care to appreciate their testimony. In Balbir Singh v. State (1996) 11 SCC 139 this Court has repelled a similar contention based on non-examination of independent witnesses. The same legal position has been reiterated by this Court time and again vide Paras Ram v. State of Haryana (1992) 4 SCC 662, Same Alana Abdullla v. State of Gujarat (1996) 1 SCC 427, Anil alias Andy a Sadashiv Nandoskar v. State of Maharashtra AIR 1996 SC 2943, Tahir v. State (Delhi) JT 1996(3) SCC 338.” 24. Learned counsel for the appellant further submitted that there are material contradictions/discrepancies in the testimony of the police officials, who were associated with the apprehension of the accused persons and the conduct of investigation on the date of the incident, which case gives support to the defence of the appellant that he was taken to the police station by a police officer on a false pretext from Haryana Emporium on the date of occurrence and falsely implicated by the police. 25. Similar argument referring to material contradictions/discrepancies in the testimony of witnesses was raised on behalf of co-accused Ramesh Kumar in Crl.A. No.478/2008 and was rejected by a Coordinate Bench of this Court in its judgment dated 26.02.2009, with following observations:- Crl.A.No.467/2009 Page 13 of 23 “33. Before dealing with the afore-noted submission of the counsel for the appellant it would be apposite to refer the following observations rendered by the Hon'ble Supreme Court in a recent decision in Criminal Appeal No.456/2002 Jayaseelan vs. State of Tamil Nadu decided on 11.02.2009:- “.........Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment.......As observed by this Court in State of Rajasthan v. Smt Kalki and Anr. (1981) 2 SCC 752, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted in Krishna Mochi and Ors. v. State of Bihar etc. AIR 2002 SC 1965 and in Sucha Singh v. State of Punjab AIR 2003 SC 3617. It was further illuminated in the Zahira H. Sheikh v. State of Gujarat AIR 2004 SC 346; Ram Udgar Singh v. State of Bihar (2004) 10 SCC 443 ; Gorle S. Naidu v. Crl.A.No.467/2009 Page 14 of 23 State of Andhra Pradesh (2003) 10 SCC 449; Gubbala Venugopalswamy v. State of Andhra Pradesh (2004) 10 SCC 120 and in Syed Ibrahim v. State of A.P. AIR 2006 SC 2908.” (Emphasis supplied) 34. In the backdrop of afore-noted legal position, we are examining the so-called contradictions/discrepancies pointed out by the learned counsel for the appellant in the evidence of the witnesses of the prosecution herein under. Under column B we are noting the subject matter of the alleged contradiction/discrepancy; under column C we are noting the contradiction/discrepancy alleged and under column D we are noting our observation:- A B C D S.No. Subject of Contradiction/Disc- repancy Contradiction/Discrepa- ncy Remarks 1. Place of arrest of accused persons (i) Const. Subash Giri PW- 4 had deposed that 'both the accused persons were brought at T-point at Hanuman Mandir. Both were arrested vide arrest memo Ex.PW-4/D and E.' (ii) Const. Jasbir Singh PW-16 had deposed that 'accused Raja Ram was arrested at about 2.30 pm after he was brought in police station.' There is no contradiction inasmuch as PW- 4 is deposing that accused persons were brought together at T-point after being apprehended at different places whereas PW-16 is deposing about formal arrest of the accused Raja Ram. 2. Place of preparation of arrest memo of accused Raja Ram Const. Jasbir Singh PW- 16 had deposed that he had signed the arrest of accused Raja Ram in the police station whereas Const. Amrit Singh PW-17 PW-17 is not a party to the preparation of all the documents prepared during the investigation Crl.A.No.467/2009 Page 15 of 23 had deposed that all the documents were prepared at the spot. particularly the arrest memo of the accused persons therefore there was no occasion for him to depose to about the preparation of all the documents. 3. Recording of time in FIR Ex.PW-8/A and MLC of the accused persons Ex.PW-26/A and Ex.PW-26/B The time of registration of FIR is recorded as 3.15 P.M. on 22.08.2002 in FIR Ex.PW-8/A whereas MLC Ex.PW-26/B of the accused Ramesh records his time of arrival in the hospital as 3.05 PM on 22.08.2002 and MLC Ex.P-26/A of the accused Raja Ram records his time of arrival in the hospital as 3.10 PM on 22.08.2002. Counsel argued that the said discrepancy evidences that the accused persons were medically examined before registration of the FIR This 'minor discrepancy' of 10-15 minutes in FIR and MLCs is of no consequence. 4. Seizure of the sealed materials (i) ASI Suresh Chand PW- 25 had deposed that 'IO seized blood and earth control at the spot at about 3.15 pm.' (ii) HC Ratan Singh PW- 12 had deposed that 'the sealed parcels were deposited in Malkhana at about 3 pm.' This discrepancy of fifteen minutes is trivial in nature considering the fact the witnesses were being examined 2-3 years after the happening of the incident and therefore does not Crl.A.No.467/2009 Page 16 of 23 create a dent in the case of the prosecution. 5. Time of arrest of accused persons Insp Ram Kishan PW-28, deposed that he had arrested accused persons at about 4.30 or 4.45 pm on 22.08.2002 whereas ASI Suresh Chand PW-25, had deposed that the accused persons were arrested about 3.15 pm This minor discrepancy in the evidence particularly when the witnesses are deposing 3-5 years after the happening of the incident does not cast a doubt on the veracity of the case of the prosecution. 6. Involvement of public witnesses in investigation (i) ASI Suresh Chand PW- 25, had deposed that 'I had not enquired from any