Case: Hari Chand &amp; Another Vs. State of Delhi

3. Salient features of the Prosecution CaseAt the outset we may briefly refer to the main features of the prosecution case against the appellants centering round the incident in question. On 18th December, 1974 at Village Tughlakabad situated in near vicinity of Delhi, at about 9.00 a.m. a criminal assault is said to have taken place in the baithak or sitting room of injured witness Ram Pal. Eleven accused were alleged to have been involved in the said criminal assault . They were accused No. 1 Rishi, accused No. 2 Likhi Ram, accused No. 3 Chandgi, accused No. 4 Hari Chand (appellant No. 1 before us), accused No. 6 Baleshwar, accused No. 7 Milkha accused No. 8 Dineswar Kumar, accused No. 9 Hukam Singh, accused No. 10 Badle and accused No. 11 Khazan. It is the case of the prosecution that injured witness Smt. Attro is the real sister of injured witness Ram Pal. PW 8 Ram Pal had two step brothers, namely, Sohan Lal and Kanahiya. Both were done to death in the said criminal assault. Ram Pal, PW 8 has his residential house in Tughlakabad. Adjacent to his house is the house of his step brother Kanahiya (deceased). The prosecution case further is that while Ram Pal had constructed his house, his house obstructed the house of accused Milkha and completely covered the ventilator of Milkhas house. This happened about two years before the incident in question. The further case of the prosecution is that accused Likhi Ram used to visit the house of his brother inlaw Milkha. One day near Diwali, in 1974 when Likhi Ram visited the house of Milkha, the wife of Milkha taunted Likhi Ram and complained to him that what was his use when he could not stop the closure of their ventilator. After the complaint and taunt from his sister inlaw, Likhi Ram went away.4. It is further alleged that on Goverdhan day, i.e., 14th November, 1974, Likhi Ram went to the house of injured witness Ram Pal where the wife of Ram Pal was cooking meals and threw mud on their food and there ensued a quarrel. In this quarrel deceased Kanahiya and Sohan Lal and their brother Ram Pal were on one side while accused Likhi Ram, Chandgi, Milkha and Dineshwar as well as Hukam Singh were on the other side. This resulted in the arrest of persons on both sides under S.107, Cr. P.C. In these chapter proceedings 18th December, 1974 was the date fixed in the Court for their appearance.5. On the aforesaid fateful day at about 9.00 a.m. Ram Pal, PW 8 was having tea with his brothers Kanahiya and Sohan Lal (both deceased) and their sister Attro who had come from Bulandshahar to the house of her brother Kanahiya as he had got a son a few days earlier. While they were sitting on cots in the baithak of the house of Ram Pal and were taking tea, the accused Likhi Ram and Chandgi along with appellants Hari Chand and Sarup Singh entered the baithak. The baithak had two doors with a verandah and a courtyard in front of it. Likhi Ram and Chandgi entered from one door whereas Hari Chand and Sarup Singh entered from the other door. Likhi Ram was armed with a ballam while Chandgi, Hari Chand and Sarup Singh were armed with lathis. The other accused were also armed and were standing near a neem tree in the courtyard of the adjacent house of Kanahiya.6. Prosecution case further is that as soon as Likhi Ram, Chandgi, Hari Chand and Sarup Singh entered the baithak of Ram Pal, accused Likhi Ram retorted AAJ TAREEKH PAR JANA HAI TUMHARA KALYAN KAR DENGE Sohan Lal, who was sitting on a cot, got up whereupon accused Likhi Ram gave a ballam blow in his abdomen. The other three accused, who entered in the baithak along with Likhi Ram, also gave lathi blows to all the three brothers sitting in the baithak. Likhi Ram accused also gave a ballam blow to Kanahiya. The other three accused also gave Lathi blows to Kanahiya. Ram Pal also received lathi blows and he ran out to the verandah.7. The further case of the prosecution is that Kanahiya died immediately whereas Sohan Lal fell in the baithak and Smt. Attro tried to raise alarm by shouting bachao bachao mar diya mar diya. In order to save Sohan Lal she bent over his body when accused Chandgi hit her with lathi. As soon as Ram Pal came out in the verandah, he received knife injuries from Dineshwar and further Lathi blows from Khazan. Ram Pal also felt down unconscious.8. It is the case of the prosecution that this occurrence was witnessed by Indraj, PW 9 and Balraj, PW 10, sons of Ram Pal, One Harish Chander, PW 19 who is resident of the village, rang up the police control room at about 9.45 a.m. The control room sent a van to the spot and in the meantime, Surjit Singh from police control room rang up Police Station, Kalkaji. Rattan Singh of Police Station, Kalkaji in turn flashed a message to Police Post Madangir at about 10.15 a.m. A.S.I. Dhan Singh PW 27 from Police Post Madangir along with Pratap Singh Head Constable and some other constables went to the village for making inquiries. Dhan Singh found Kanahiya, Sohan Lal,. Ram Pal and Smt. Attro in precarious condition. In the meanwhile the police control room van had also reached there. Dhan Singh immediately sent all the four injured persons to the All India Institute of Medical Sciences in the van of the control room and deputed Head Constable Pratap Singh, PW 21 and other constables to guard the site. Dhan Singh also left for the hospital, separately.9. However, on enquiry by Dhan Singh from the doctor, Kanahiya was found dead and soon thereafter Sohan Lal died. Ram Pal was declared unfit to make a statement. Smt. Attro was found by doctors to have suffered three injuries but was declared fit to make a statement. A.S.I. Dhan Singh. PW 27 recorded the statement of Smt. Attro in the hospital itself. Her statement is as under :"I am the real sister of Ram Pal, Kanahiya and Sohan Lal r/o Tughlakabad. About 10/12 years ago I was married to Sh. Dunger of village Khtera U.P. It has been a matter of 8 days when I came to see my brother Kanahiya because of the birth of a son to him. My brothers have an old enmity with Likhi, Chandgi, Hari Chand etc. who are the residents of Tughlakabad. They had also raised a quarrel with my brothers on the day of Goverdhan festival. Both of the parties had been arrested by the police, and today they had to attend the Court in that connection. Today at about 9 A.M. when I was taking tea while sitting with my brothers Ram Pal, Kanahiya and Sohan Lal in my baithak, Likhi and Chandgi who are the sons of Lakhpat and Sarupa and Hari Chand who is known as Khotey as well, who are the sons of Nihal Chand and are the residents of Tughlakabad itself and are quite known to me, entered the baithak and Hukam Singh who is known by the name of Kaley as well, Baleshwar, Milkhey and 2/3 other persons who are the residents of Tughlakabad itself, were standing outside on the road, Likhi was holding ballam in his hand and the others were holding lathis in their hands. Likhi said that no doubt, they had to go the Court but let them be done away with and saying as such Likhi gave a ballam blow in the abdomen of my brother. Sohan Lal and Chandgi, Sarupa and Khotey gave lathi blows to all of my three brothers Ram Pal, Kanahiya and Sohan. I raised an alarm to the effect bachao bachao mar diya mar diya. In order to save Sohan Lal when I bent down over him Chandgis lathi hit me also on my left shoulder. My brother Kanahiya could not withstand the blows of their lathis and fell down on the spot and became unconscious. Sohan Lal and Ram Pal also got injured and became unconscious and fell down. Police van brought us to hospital. In hospital the doctor told about my brother Kanahiya that he had died. This incident has been witnessed by Balraj and Inder the sons of my brother Ram Pal who were present over there at that time. I have heard the statement and it is correct."A.S.I. Dhan Singh made his endorsement on the statement of Smt. Attro and sent the ruqqa along with his endorsement at about 12.50 p.m. to Police Station Kalkaji were upon formal First Information Report was recorded at about 1.05 p.m. by A.S.I. Rattan Singh.10. On recording the aforesaid report of Smt. Attro a case under S.302/307/425/34, IPC was registered against all the 11 accused and investigation started.11. As noted earlier Sohan Lal also died on the same day in the hospital. The doctors at the All India Institute of Medical Sciences (AIIMS) also examined injured witnesses Ram Pal and Attro.12. After sending the ruqqa, A.S.I. Dhan Singh returned to the spot. Soon after the injured had been removed to the hospital. Inspector Jugraj Chand, PW 26, who was Station House Officer of Police Station, Kalkaji, also reached the spot and also went to the hospital. In the hospital he noticed that apart from Smt. Attro the other three persons were not in a position to make statement. He came back to the spot and made enquiries. He got site plan prepared and also recorded the statement of Indraj, PW 9 and Balraj, PW 10 at about 1.00 p.m. We shall refer to the injuries noted by Dr. B. B. Aggrawal, PW 2 who conducted postmortem examination of deceased Sohan Lal and Kanahiya and also the injuries noted by the doctor who examined Smt. Attro and Ram Pal in the latter part of this judgment. During investigation accused Chandgi and Likhi Ram were arrested on 19th December, 1974 while the appellants were arrested on 31st December, 1974. Remaining accused were arrested between75 on different dates.13. A.S.I. Dhan Singh made an application to the Chief Medical Officer of AIIMS hospital for recording the statement of Ram Pal. The CMO declared him unfit for making a statement. Dhan Singh, again tried for recording his statement and again he was declared unfit for minimum of two days. The police again applied on 23rd December 1974 and the doctor again declared him unfit for making a statement for seven days minimum Ram Pal was discharged from the hospital on 30th December, 1974 but his statement could be recorded on 29th January, 1975 after the S.H.O. produced him before the Medical Officer in charge for their opinion as to whether he was mentally and physically fit to make a statement. Dr. R. Bhatia, Lecturer in Neuro Surgery, AIIMS examined him and found him fully conscious and fit to make statement to the police. The doctor, however, made an endorsement that Ram Pal still had a speech defect in the form of slow and slavered speech.14. The Investigating Officer, Jugraj Chand, also noticed that earlier Ram Pal was speechless and, therefore, his statement could not be recorded and, for the first time, after Dr. Bhatia had examined him on 29th January, 1975 the police recorded the statement of Ram Pal on 29th January 1975.15. After completion of investigation the police prepared charge sheet against all the 11 accused for offences under Sections 148,302 read with S.149, I.P.C., S.307 read with S.149, I.P.C. and S.452 read with S.149, I.P.C. The case was duly committed to the Court of Additional Sessions Judge. All the 11 accused stood trial for the offences with which they were charged. The Additional Sessions Judge, New Delhi who tried the Sessions Case No. 55 of 1975 against all the 11 accused came to the conclusion that out of the 11 accused only accused No. 2 Likhi Ram and accused No. 3 Chandgi were guilty of offences under S.302 read with S. 34, I.P.C. and consequently each of them was sentenced to life imprisonment. They were also convicted under S.452, I.P.C. and each of them was sentenced to undergo rigorous imprisonment for one year. They were also convicted under S.325 read with S.34, I.P.C. for causing grievous hurt to Ram Pal with blunt object and each of them was sentenced to undergo rigorous imprisonment for one year under the said Section, Both of them were also convicted under S.323 read with S.34, I.P.C. for causing simple injuries to Smt. Attro and each of them was sentenced to undergo rigorous imprisonment for six months on this count. All these sentences were ordered to run concurrently. The remaining nine accused including the present two appellants were, however, acquitted by the learned Sessions Judge.16. The convicted accused Likhi Ram and Chandgi preferred criminal appeals before the High Court of Delhi at New Delhi while the State filed appeal against acquittal of all the nine remaining accused including the present two appellants. The two conviction appeals of accused Likhi Ram and Chandgi and the acquittal appeal by the State were heard together by a Division Bench of the Delhi High Court. After hearing the parties through their respective counsel the High Court took the view that accused Likhi Ram and Chandgi were rightly convicted by the learned Session Judge. So far as the appeal against acquittal moved by the State was concerned, it was partly allowed against the present two appellants who were ordered to be sentenced as noted earlier, while the said appeal of State against acquittal of remaining seven accused, namely, Rishi, Baleshwar, Milkha, Dineswar, Hukam Singh alias Kaley, Badley and Khazan was dismissed. The State has not preferred any further appeal against acquittal of these aforesaid seven accused. Accused Likhi Ram and Chandgi in their turn filed criminal appeals by special leave in this Court. But their appeals have abated on account of their death pending their respective appeals. Consequently in the present appeals we are only concerned with the orders of conviction and sentence as passed by the High Court against the present two appellants in the appeal of the State against acquittal of these two accused by the learned Sessions Judge.

Reasoning:
As the prosecution evidence reveals, injured Kanahiya, Sohan Lal and Ram Pal as well as Smt. Attro were removed by Police witness Dhan Singh to AIIMS in the van of the control room. When Dhan Singh enquired from the doctor Kanahiya was found dead and soon thereafter Sohan Lal also died in the hospital. Ram Pal was declared unfit to make a statement. It is also clear from the medical reports that all the four injured had been removed to AIIMS and were with the doctors by 11.45 a.m. The ruqqa itself was dispatched by 12.50 p.m. Smt. Attro was first examined by doctors and thereafter her statement was recorded by A.S.I. Dan Singh and the FIR was registered at 1.15 p.m. Thus at the earliest opportunity without any undue delay the FIR was registered at the police station. As the incident had taken place at about 9.00 a.m. in the morning of 18th December, 1974 and when the message about the incident was flashed to the police control room at about 9.45 a.m. as deposed to by Harish Chander PW 19, it is obvious that it took sometime before the A.S.I. Dhan Singh could reach the spot. He reached there by about 10.30 a.m. and simultaneously police control room van also reached. It was thereafter that all four injured were taken to AIIMS where the doctors examined them by 11.45 a.m. It is to be noted that when Smt. Attro herself was an injured victim and when the doctors had to examine Kanahiya, Ram Pal and Sohan Lal who were very seriously injured and out of whom Kanahiya was declared dead and Sohan Lal died a little later and when Ram Pal was in a seriously injured condition having lost consciousness it would naturally take sometime before Smt. Attro could be questioned by the police. Her statement could be recorded at the earliest opportunity possible at the hospital when she was fit to make a statement and give information regarding the incident. Consequently the High Court was perfectly justified in taking the view that there was no undue delay in recording the FIR and it was a true and correct recording of the earliest version about the incident given by injured witness Smt.is true that in her deposition before the Trial Court she tried to rope in apart from the appellants. It is true that in her deposition before the Trial Court she tried to rope in apart from the appellants and convicted caused Likhi Ram and Chandgi, other accused who have been acquitted by the Trial Court and whose acquittal has been confirmed by the High Court. But only because she tried to exaggerate her case at the stage of trial it cannot be said that her evidence otherwise reliable against the present appellants also should be disbelieved. The High Court, therefore, was justified in sifting her evidence and in trying to see whether after discarding the unbelievable part of her evidence, the rest of her evidence against the present appellants which had stood the test of cross examination could be reliedour view the evidence of Smt. Attro in so far as she consistently deposed in connection with the role of the appellants and which had run parallel to her FIR was rightly accepted by the High Court. It is true that in the FIR as well as in her evidence before the Trial Court she had not ascribed any positive act on the part of the appellants in giving lathi blows to her brothers but she had clearly stated about their presence on spot and being party to the criminal assault on all the four of them in the baithak of Ram Pal which resulted in the death of her two brothers Sohan Lal and Kanahiya and in grievous injuries to her brother Ram Pal as well as to herself. It is also true that she had not stated in her evidence that the appellants were armed with lathis when they entered the baithak along with Chandgi and Likhi Ram to attack them and in the FIR she had also stated that they were armed with lathis. Consequently prosecution has clearly brought out the involvement of present appellants in the incident wherein they shared common intention with accused Likhi and Chandgi in giving fatal injuries to the two deceased as well as injuries to the tow injured witnesses Ram Pal and Smt. Attro.21. So far as Attro is concerned the medical evidence shows that she had suffered threecontusion on the upper part of the shoulder, (2) abrasion on the fore arm, and (3) haematoma left side of the back of the skull. This evidence supported her version that she had suffered injuries on spot at the time of incident when she tried to save her brother Sohanpart of his evidence has well stood the test of cross examination and fully supports the eye witness account of Smt. Attro so far as the involvement of the present appellants in the incident is concerned. Once it is found that appellants entered the baithak of witness Ram Pal armed with lathis in company of accused Chandgi and Likhi and facilitated the attack by Likhi and Chandgi on the witness and the two deceased, it cannot be urged that they did not share the common intention of murdering the concerned victims of their assault. S.302 read with S.34, I.P.C. would squarely get attracted against the present appellants along with accused Likhi and Chandgi who actually mounted the assault on these victims in company of the present appellants. Having given our anxious consideration to the eye witness account deposed to by prosecution witness Attro, PW 7 and Ram Pal, PW 8 in the light of the FIR we find that the High Court was perfectly justified in placing implicit reliance on the eye witness account of PWs 7 and 8 for convicting the appellants of the offences with which they wereis true that in her evidence she has not stated that the appellants also mounted attack with lathis and only the other two accused Likhi Ram and Chandgi were involved in the actual assault. However, PW 8 Ram Pal has clearly stated that the present appellants were also wielding lathis and had taken part in the assault on Kanahiya. That part of the evidence has well stood the test of cross examination. Thus, their presence being armed with lathis in company with the other two accused and their participation in the assault is established on record. It is easy to visualise that they would have come together sharing common intention to liquidate the victims and would not have come just for the sake ofhave also seen earlier how the said suggestion could not be accepted for the simple reason that if Badley and Prabhu were out to falsely involve the appellants and would have prevailed upon Smt. Attro to falsely involve them, Badley while being examined in Sessions Case as PW 12 would not have gone out of his way in supporting the appellants. Consequently, the submission of the learned senior counsel Shri Jain for discrediting the eye witness account of Smt. Attro as recorded in her statement at the earliest at the hospital cannot befar as this contention is concerned it must be kept in view that while appreciating the evidence of witnesses in a criminal trial especially in a case of eye witnesses the maxim falsus in uno, falsus in omnibus cannot apply and the Court has to make efforts to sift the grain from the chaff. It is of course true that when a witness is said to have exaggerated in his evidence at the stage of trial and has tried to involve many more accused and if that part of the evidence is not found acceptable the remaining part of evidence has to be scrutinised with care and the Court must try to see whether the acceptable part of the evidence gets corroborated from other evidence on record so that the acceptable part can be safely relied upon. So far as the aspect of corroboration to the evidence regarding the eye witness account of witnesses Ram Pal and Attro about the involvement of appellants is concerned, the said corroboration is found from the earliest recorded statement of Smt. Attro at thethat apart, their very presence on the spot armed with lathis could clearly indicate that they shared common intention with the remaining accused Likhi and Chandgi who in their company mounted the assault on the victims. Even the cross examination of these eye witness has also proceeded on the basis that they were present on the scene of offence and had suffered from injuries in the assault. In this connection Shri Jain submitted that so far as Smt. Attro is concerned in her evidence she did not state that the present appellants were armed with lathis. It is of course true that in her evidence she only stated that appellants Hari Chand and Sarup had come to their baithak in company of Likhi and Chandgi and that Likhi was armed with ballam and Chandgi was armed with lathi. However, she further stated that they were all eleven accused who had come to their baithak to attackis true, as stated by him, that he could not see the assault on Smt. Attro but evidence regarding assault on her is supplied by the cogent version deposed to by injured eye witness Smt. Attro herself. The eye witness account of injured witness Ram Pal, PW 8 and Smt. Attro, PW 7 has well stood the test of cross examination. Consequently the submission of learned senior counsel Shri Jain for not accepting the eye witness account of these two witnesses so far as the present appellants are concerned, cannot befar as this submission is concerned it has to be kept in view that the remaining seven accused were acquitted by the Trial Court and which acquittal was accepted by the High Court on the ground that there was no clear evidence regarding their involvement in the incident and that the injured eye witnesses Ram Pal and Attro had specifically deposed about the involvement of only four accused, namely, Likhi, Chandgi and the present two appellants who were stated to have entered the baithak and mounted attack and when in the FIR it was mentioned that other seven accused were standing outside the house on the road. Hence they were given benefit of doubt. Only because such benefit of doubt was given to the remaining seven accused it cannot be said that clinching evidence against the remaining four accused should also beis in evidence that the place of offence in Village Tughlakabad is not at a long distance from Delhi where the accused was appearing in his L.L.B. examination. It is not in dispute that examination was being held in the morning from 9.00 a.m. for three hours. Therefore, after finishing the examination on 17th by 12.00 noon. and when the next examination was on 19th December there was ample opportunity of the accused to go to his own village. Consequently it is not improbable that the accused could be present on the scene of offence on 18th which was an off day for him so far as his examination was concerned. Consequently the aforesaid evidence does not probabilise the theory of alibi and absence of the accused from the scene of offence on that fateful morning of 18th December 1974. It is well established that it is for the accused to prove the case of alibi to the hilt. The aforesaid evidence of the alibi led on behalf of both the appellants does not meet this test. It must, therefore, be held that the defence has failed to establish the plea of alibi concerning the present appellants. The High Court, therefore, was justified in not accepting this version of the accused. Points Nos. 1 and 3, therefore, will have to be answered against the appellants. It must be held that the prosecution has been able to establish beyond shadow of reasonable doubt that both the accused had shared the common intention with convicted accused Chandgi and Likhi in liquidating the victims Sohan and Kanahiya and in belabouring prosecution witnesses Attro and Ram Pal. Consequently their conviction and sentence as imposed by the High Court under S.302 read with S.34 I.P.C. for causing the death of Sohan and Kanahiya and their conviction and sentence under S.325 read with S.34 for causing grievous hurt to prosecution witness Ram Pal and their conviction and sentence under S.323 read with S.34 for causing simple injuries to Smt. Attro cannot be found fault with. Point No. 1 is, therefore, answered in the affirmative while point No. 3 is answered in theis now well stated that in appeal against acquittal the High Court is entitled to reappreciate the evidence if it is found that the view taken by acquitting court was not a possible view or that it has a perverse or infirm or palpably erroneousfar as the facts of the present case are concerned it emerges on record that the eye witness account of prosecution witnesses Smt. Attro and Ram Pal who were injured eye witnesses was acceptable to the Trial Court so far as their version about involvement of convicted accused Likhi and Chandgi is concerned. But the very same evidence of injured eye witness against the appellants was not relied upon by the Trial Court by adopting a view which was clearly against the weight of evidence and not a reasonablethe view of the Trial Court giving benefit of doubt to the accused was clearly against the weight of evidence and patently a perverse and unreasonable view. In this connection the High Court was justified in observing that witness. Badley, P.W. 12 was examined only for proving identification of dead bodies of Sohan Lal and Kanahiya while witness Ajit Ram P.W. 18 was examined for proving the recovery of ballam and lathis. But during their cross examination they tried to support the accused and had gone out of their way in deposing that the accused were not present on the scene of offence at the relevant time. The evidence of witness Badley in his cross examination was clearly unreliable and was right rejected by the Trial Court. Consequently the evidence of these two witnesses could not have been relied upon by the Trial Court for exonerating the accused and in holding that the accused would not be present on the scene of offence on the date of incident. We have already seen earlier how the defence had failed to establish the theory of alibi still the Trial Court has accepted the theory of alibi as put forward on behalf of the defence and that is how benefit of doubt was extended to the appellants. The said reasoning of the Trial Court was clearly perverse, unreasonable and against the weight of evidence. Under these circumstances the High Court was perfectly justified in interfering in appeal against acquittal and in coming to its own conclusion by appreciating the evidence led by the prosecution. The second point for determination also, therefore, has to be held against the appellants by answering it in the affirmative.