\3 HiGH COURT OF DELHI o/o Date of decision: May l7/I 2OO5. + Crinrinal Appeal No.1 1O/2O03. # Nathu Ra:rr Appellant through ! Mr.Raiesh Mahajan, a:nicus curiae. Versus $ The State of NCT Respondents. Of De1hl. ihrough A Mr.Ravinder Chadha, Additional v Public Prosecutor. Coram : * Ilon'ble }/Ir.Justice Manmohan Sarin, Hon'ble Mr.Justice R. S. Sodhi. (1) Whether reporters of 1ocal paper may be alloured to see the judgment? (2) To be referred to the reporter.or no't? (3) Whether the judgment should be reported in the Digest ? . l + Marrmohan Sarjn. J 1. This is an appeal under Section 374 Cr.P.C. against the - judgnent and order of sentence dated 3'd Decernb er, 2OA2 and 4fr Decenrber, 2OO2, passed b)r the Additional Sessions Judge, cr1.A.110/2001 Page 1of 7 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified I \1 sentencing the appellant to undergo llfe imprisonment and to pay a fine of Rs.5,OOO/- and in default in payrrent of 'fi:ee, to further undergo S.I., for five monttrs. 2. The faets are in a narTow compass. Appellarrt along with Surt.Kashi Bai were prosecuted under Section 3O2 read with Section 34 IPC for the rrurder of Hallu, husband of Surt.Kashi Baj on 12ft March, 2OOO. Appellant and tJ:e deceased' Flallu were both worlcing as labourers in l*rel Parisar, Jasola. ltre prosecution case is that there was an altercation between ttre deceased Hallu and appellant }iathu Rain- orrer Surt.Kashi Bai, wife of Hallu. In a sudden fit of aflger' appellant Nathu Ram picked up a 'Kassi' and hit Hallu on tJ:e head.. The allegation fi.rrther is that l{ashi Bai standing nearby exhorted the appellant to finish Ha-llu, as he was comln$ in betrveen their relationship" Upon this' appellant is alleged to have furlher given 4-5 blows $iith Kassi on the head, neck and should.er of Hallu, rrho had fallen down and collapsed. The 'Kassi' was collected from near the head of ttre deceased and Page2ofT .l Crl.A.1t0/2003 \{ also a stone. Apart from that one crichet bat, a shjrt, worn by the d.eceased. were also talren into possession by the police. upon conrpletion of investigation, appellant/Nathu Ram and Kashi Bai were charged. for ollences punishable und.er Section 3lOZ read \$ith Section 34 IPC. 3. The learned Additional Sesslons Judge after appraisal of the evidence carne to the conelusion that the allegations against Kashi Bai rvas of merely standin$ nearby the dead body. Further Kashi Bai was tJ:e wife of deceased Hallu, who had subsequently started livjng uiittr appeliarrt/Nathu Ra:rr. Appellarrt and Hallu were stated to be not on good terms. As per the challan, Kashi Bai instigated Nathu nint to kill Flallu, after he fell down on recelvjng blow from butt of the Kassi, but there was not even a1 iota of evidence in this re$ard. The Additional Sessions Judge found that the witnesses even differ on the question as to whether "Kashi Bai" was seen nearby the d.ead. body immediately after the incident. It wa-s held that no offence of any ldnd has been proved against Kashi Bai. She Crl.A.lLU2Cf.3 Page 3 of7 \ I \ a.J \6 was accordinglY acquitted. 4, As far as Nattru Ram ls concerned, the ffial Court relied upon the testimony of PW-4/Snrt.I(ra3ti w/o Sh'Dhoo Ra:rt and Pff-5/Snnt,Nirmalaw/o Kanhaya lal, who both deposed that they were to$ether taking nreals, rrhen tJre offence was committed. Both of them co:roborated eae'h other' PW-4 had deposed tJlat Nathu Rarn was involved jn the offene'e' Ra{her' in this ease, in response to a suggestion nade by the defence counsel, tlte answer cailre in a cate$orical form ag;,ainst the appellant jn the follorying rvords, 'Tt Ls wrong to suggest' that' ac.e.used Nathu Ra:rr did not $ive l(assl blows jn rrry presence"' she further clarjfied that the distance between the place where she rvas sittin$ and taking meals and the place of occurrence ll/a,s not even one foot, in cross-examination by the public' prosecutor after being treated as hostile, she stated' "It is' honrever, e.olTee.t that accused l\athu Ratrr, present jn court, gave 4-5 blorvs with Kassi at head, neclt aJld shoulder of the fallen ula::." Page 4 of 7 li Crl.A.1t0/2m3 \1 5. P\If-5/Ni:rrrala had deposed that she was nrcrking as a labour cuttin$ grass arrd taking meaLs uiith l(ranti/P$/-4. She further d.eposed. that appellant Nathu Raur had murdered the deceased with Kassi, hitting on his neck, head' and- he gave 3 blows. She stated that she had seen appeliarrt Nathu Rattt, giving blows, while tJ:ey 'were taking food, as they were faein$ towards them. PW-3/Kanhaya Lal, on whose stateurent FIR had been re$stered, while giving his depositions in Courl, merely said that at about 1.30 p.uL. a qualTel had taken place and. a.s they calne out one labourer was lyrng in a i4iured condition. He d.enied havin$ seen ariybody carising injuries. He also denjed that Kashi Bai was working as a labourer and was present at the spot. He even did not identify Kashi Bai. 6. Based on the appreciation of evidence, as noted above, the learned. Additional Sessions Judge convicted and sentenced the appellant to life imprisonrrrent rvhjle acquittin$ Kashi Bai. 7, Mr,Rajesh Mahajan, alrticus curiae for the appellartt' Crl.A.110/20O3 Page 5 of7 t; .I \? assailed the judgment states that the person 'urho had lodged the FIR had resiled and not supported tJ.e prosecution version. Kashi Bai had, accordin$y, been acquitted. He subnrits that there are contradictions in the testinroni.es of P1il-4 and Prrjf-5, as compared to their statements under Section 161 Cr.P.C. He submlts that on a proper appreciation of evidence, it would be seen that PW-4 and PW-s are not actual rvihresses to the oecurrence. FIe seeks to support this by submitting that had they been actual rsitnesses to the occurrence, their presence rvould have been found and recorded in the docunrents prepared during investigation, such as, the site plan drawn to scaLe or in the brief facts as record ed.. He subnrits that their testimonies were not trustworthy and reliable and ought to be discarded. 8. We are unable to appreciate th.is suburission. It is not essential that the name of every witness to a criirre ought to figure or be shovrn in the site plan or it should appear in the brief facts. Both PW-4 and PS/-S have given graphic account of Page 6 of7 \ I Crl.A.110/20O3 \1 a 'r the occurTence, Their testimonles have remained unshahen by cross-examination. They have deposed that they were rvorking at ttre site on the day of occunence. They were having their meals and have ruihressed ttre appellant, giving blows to the deceased. Moreover, il. this case, the prosecufiott,. has ( established its case beyond atly reasonable doubt. A urbtive, na:rrely, the relationship between the appellant and the Kashi \ \ \l vravlt//4 2oo5 aka. Crl.A.110/20O3 Page 7 of7