Case: Hem Raj  Vs. State Of Haryana

2. The following is a brief account of the prosecution case and other relevant facts:3. On the night of 3rd April, 1996, all the accused attacked Hemant Kumar at Chandni Chowk and stabbed him with knives. As a result of stabbing, he received six injuries out of which two were in the chest region. The fatal assault by the four accused was seen by the younger brother of deceased-PW4, who was returning home from his watch repair shop. On being informed by a passer-by on a bicycle, PW4 rushed to the spot and having noticed from a distance of 30 ft. or so that the attack on the deceased was going on, he raised an alarm. Hearing the cries, PW5-another relation of the deceased and one Kapoor Singh who were at a nearby sweet shop joined PW4. On seeing all of them, the accused fled. According to PWs 4 and 5, three accused carried knives and the accused, namely, Kala carried Neja (which resembles knife). The injured person fell down on the spot and he was taken on a cot to the Civil Hospital, Safidon by the aforementioned three person. At the hospital, the doctor (not examined) declared him dead. The same doctor sent a rucca (memo) to the Police Station, Safidon at about 9.50 p.m. The Sub-Inspector of Police-PW9 was going on a jeep by the side of the hospital. The Ward Boy of the hospital handed over the rucca to him PW9 then came to the hospital and after sometime, recorded the statement of PW4 at the hospital. He sent the same to the Police Station, on the basis of which an FIR was recorded at 11.30 p.m., for an offence under Section 302 read with Section 34 IPC. Copy was sent to the Judicial Magistrate through a Constable and it reached him at about 1.00 a.m. In the said statement given to the police, PW4 named the four accused as the assailants. PW9 held the inquest over the dead body in the hospital and sent the dead body for post-mortem. The Medical Officer attached to the General Hospital, Jind did the post-mortem examination at 9.15 a.m. on 4.4.1996 and prepared the post-mortem report which is Ex.PA. PW9 could go to the scene of occurrence at about 2.30 a.m. The delay was for the reason that he tried to stop a reprisal attack by a mob to set fire to the houses of the accused. He prepared a site plan. One Gobind Das produced all the four accused persons involved in the offence in the night of 4.4.1996 before PW9 while he was at Court Road Chowk. They were arrested and immediately thereafter, the accused Kala produced a knife(Ex.P1). The total length of that knife was 8 inches inclusive of 4" of handle and the width of the blade was about 0.2 to 0.3 cms. PW10-Inspector of Police, CIA, was entrusted with investigation from 6.4.1996 onwards. He recorded the statements of some witnesses. He applied for judicial remand of the arrested accused. On the same day, PW10 took the knife seized from Kala to the Medical Officer-PW1, who endorsed on the post-mortem report that the injuries could be inflicted by the knife. On the basis of his investigation, PW10 found that the accused other than Kala were innocent. Therefore, in the report under Section 173 Cr.P.C., only Kala was shown as the accused for the offence punishable under Section 302 IPC. However, all the four accused persons were committed to Sessions. After examining the record, the learned Judge found that there was a prima facie case to proceed against all the accused. Accordingly, the charge was framed against all the accused under Section 302 IPC. Curiously, Section 34 was omitted in the charge. On the basis of the evidence of the eye-witnesses, namely, PWs 4 and 5, the accused were convicted under Section 302 IPC4. The motive of the accused is traced to an incident which had happened one and a half years earlier when the deceased Hemant Kumar identified the accused as the persons involved in the kidnapping of the daughter of one Niranjan Das. However, the motive was held to be not proved by the trial court. The High Court did not hold to the contra5. The details of post-mortem examination may be noticed at this juncture. The following injuries were found on the body of the deceased:-(i) Spindle shaped incised wound on left side of chest just lateral to left nipple 1.5 x 1 cm x 4 cm. The wound cut through skin, costal muscles, corresponding cut in pleura was present(ii) Incised wound (spindle shaped) 3 x 1 x 7 cm on the left side of chest 5 cm below injury no.1 longitudinally placed, wound cut through shirt, banian, Costal muscles 6th and 7th intercostals space, left lung(iii) Incised wound (spindle shaped) 2.5 x 1 cm x 6 cm obliquely placed on left side of abdomen 5 cm below the costal margin. The wound cut through skin muscle, peritoneal membrane and a cut of 1.5 x 1/2 x 3/4th of cm. on spleen was present(iv) Incised wound 4 cm x 1.5 cm muscle deep on the posterior lateral aspect of left fore-arm(v) Incised spindle shaped wound on upper thigh of the size of 3 x 1.5 cm x 1 cm. 15 cm below iliac crest(vi) Incised wound 3 cm x 1.5 bone deep on the palmer aspect of right thumb, bone was fractured4. The motive of the accused is traced to an incident which had happened one and a half years earlier when the deceased Hemant Kumar identified the accused as the persons involved in the kidnapping of the daughter of one Niranjan Das. However, the motive was held to be not proved by the trial court. The High Court did not hold to the

Reasoning: 11. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness-Kapur Singh, would assume significance. This Court pointed out in Takhaji Hiraji vs. Thakore Kubersing Chamansing & Others [(2001) 6 SCC 145] 13. There is also a doubt regarding the time when the first information was received at the police station. The FIR was registered at 11.35 p.m. on the basis of the statement of PW4 recorded at 11.15 p.m. at the hospital. However, as per the evidence of PW6 (Police Constable), the information regarding the occurrence was received in the police station at 10.30 or 10.45 p.m. and thereafter the SI-PW9 accompanied by him and other police personnel went to the hospital. Apart from the fact that his evidence goes contrary to the version of PW0 that on receiving the death intimation at the hospital gate, he went straight to the hospital and an hour later he recorded the statement of PW4, a doubt is cast on the time and source of first information. If the information was received at the police station at 10.30 p.m. why was it suppressed? What are the details of such information? These are the questions which remain unanswered14. No weapons were recovered from any of the accused. The recovery of knife from Kala at the time of surrender has been rightly disbelieved by the trial Court15. All the above factors would not have assumed much importance if the evidence of PWs 4 & % could be accepted without raising an eye-brow. However, two views are possible on the point whether these persons had really witnessed the attack. There is every reason to think that PW4, on being informed by a way-farer, would have reached near the scene of offence almost after the attack was over. The possibility of seeing all the accused attacking the deceased with the knives and Neja from a distance of 30 feet or more, that too, in the night time, is rather doubtful. It is not safe to rely on his version that he had seen the accused with the particular weapons in their hands. In this context, it may be noted that PW4 did not mention the distance from which he observed the attack. In the site plan drawn to scale, the distance of the spot from where PW4 observed the incident was given as 30 ft. It was night time-almost 9.00 p.m. and most of the shops were closed, as seen from the evidence of PW4. PW4 or any other witness did not give any details about the lighting in the vicinity. However, from the site plan drawn by PW8, there was a tube-light attached to the electrical pole situated at 20 feet distance. It would have been difficult for PW4 at the night time to notice each of the accused carrying a particular type of weapon, that too a small weapon like knife. But, PW4 came forward with the version that all the accused except one, were carrying knives and the other was carrying Neja. Thus he claims to have seen so clearly as to distinguish between a knife and Neja at that juncture, when the attack would have been almost over and PW4 was trying to evoke the attention of the people around. It is difficult to accept the version of PW4 of having seen the weapon in the hand of each of accused and the nature of the weapon. The reference to Neja in particular appears to have been introduced for explaining the injuries on the body of the deceased. It seems to us that the picture given by PW4, as if he had seen each of them with the knife or Neja seems to be an embellishment developed with the idea of implicating all the brothers as the accused. His further version that PW5 having heard his cries joined him and witnessed the attack seems to be a story invented for the purpose of introducing another eye-witness to corroborate his version. The possibility of Pw5 who was at a sweet shop hearing his cries, joining PW4 and then observing the incident appears to be highly improbable. If PW5 had already been there near Channi Chowk for purchasing sweets, he would have noticed the commotion caused by the attack and would have seen the assailants even before PW4 arrived at the spot. But his story is different. Another factor which casts a doubt on the evidence of PWs 4 & 5 is that there were no blood stains on their clothes, though allegedly, they placed the deceased on cot and carried him to the hospital. Moreover, soon after his brother was declared dead, PW4 did not go to the police station which was quite close to the hospital to lodge a report. That is not a natural course of conduct. It is on account of these doubtful features in the evidence of PW4 that the factum of non-examination of independent witness, though available, assumes importance12. One more aspect which deserves notice is that at the alleged scene of offence, no blood-stains were found by the I.O., though he made a search. The surmise of the High Court that the blood stains at the public place would have disappeared in view of the time gap between the incident and the I.O.;s inspection may not be correct, especially, in view of the fact that it is a metal road, as shown by PW8 in the site plan and it was night time. It is difficult to believe that traces of blood would fade out by the time of the visit of I.O. This is one of the circumstances that has to be kept in mind while appreciating the prosecution case.