Kartar Singh and ors. Vs. State - Court Judgment

Excerpt:
indian penal code - section 302--value of prosecution witnesses--delay in recording fir--its result--if the witnesses bail from the same native place and are known to each other before coming to the city of occurren ; if they had been residing in the same building ; and if many other people gathered at the spot of the occurrence but non other examined by the prosecution, then in these circumstances if cannot be said that the prosecution has been able to bring home the guilt of the appellants, the delay in recording the first information report so as to leaving sufficient time to the witnesses to make consultations and give coloured version of the incident is a circumstance that goes against the prosecution. - n.c. kochhar, j.(1) kartar singh son of ralla ram and his two sons harbans singh @ raju and baldev singh @ pappu (the appellants), residents of house no. rz-2062, tughlakabad extension, new delhi were tried in case fir no. 83/82 of police station badarpur and have been convicted under section 302 read with section 34 indian penal code by shri k.b. andley, additional sessions judge, new delhi who sentenced each one of them to undergo imprisonment for life.(2) the prosecution story, in short, is that a water tap was installed in gali no. 25 of tughlakabad extension, new delhi. on 2nd may 1982 at about 8.30 pm. abdul majid @ abdul aziz (public witness 2) who resided in gali no. 26, where the appellants also resided, had gone to fetch water from the said water tap and was waiting for his turn to take water. when other persons, who were in queue in front of abdul majid, went away after taking water and it was abdul majid's turn, harbans singh came there to fetch water and wanted to take the same before abdul majid could take it. abdul majid protested by saying that it was his turn whereupon harbans singh got enraged and started beating abdul majid with slaps and fists. hearing the noise, kartar singh and baldev singh reached the spot with lathis in their hands and in the meanwhile abdul rehman (the deceased), who was the husband of the paternal aunt of abdul majid, also reached there. the deceased asked the appellants not to quarrel with abdul majid and thereupon the appellants pounced upon him. they dragged the deceased from gali no. 25 to in front of their house situated in gali no. 26 and after dragging him there, kartar singh gave a lathi blow on the waist of the deceased. harbans singh took lathi from baldev singh and assaulted the deceased with the same on his waist. baldev singh gave a kick blow on the testicals of the deceased with the help of his right loot. the deceased became unconscious and fell down at the spot and died soon thereafter and the appellants ran away from the spot. mohd.tejum(pw3),the son of the deceased, and ram chander (pw 4), who resided in the neighborhood, were attracted to the spot and had seen the occurrence. ram chander, while trying to save the deceased, had received a lathi blow on his left hand. prem nath kataria (public witness 1), who lives in gali no. 30, was sitting outside his house when some persons came to him at about 9.45 p.m. or 10 p.m. and told him that there had been an altercation in gali no. 26 and at their request he rang up police post okhla, phase i (the police post) and passed on the information that a quarrel was going on in gali no. 26. this information was received on telephone at 10 p.m. by constable ranbir singh (public witness 7), who recorded the same at seriall no. 22 in the daily diary (ex. public witness 7/a) and handed over its copy to s.i. vinod kumar (public witness 14). on receipt of the copy of this information, si vinod kumar went to the spot along with police staff and on reaching there at 10.30 p.m., found the dead body of the deceased lying in front of the house of the appellants in gali no. 26. the s.i. found abdul majid and some of his relations at the spot. he recorded the statement ex. public witness 2/a of abdul majid and after making his endorsement ex. public witness 14/a thereon, sent the same to police station badarpur where case fir no. 83/82 was registered at 11.45 p.m. by duty officer head constable kundal lal (public witness 10). after registering the case, the head constable returned the rukka ex. public witness 2/a along with the copy of the fir (ex. public witness io/a) to constable rustom singh who had brought the same and constable rustom singh brought it to the spot and gave it to si vinod kumar who was busy with the investigation at the spot.(3) s.i. vinod kumar inspected the spot and on the pointing out of abdul majid, he prepared rough site plan ex. public witness 14/b. in the meanwhile crime team arrived at the spot and under the directions of the si, photographs of the scene of occurrence were taken. si vinod kumar prepared inquest report ex. public witness 14/c in respect of the deceased besides preparing the injury report ex. public witness 14/d in respect of ram chander. he sent the dead body of the deceased along with application ex. public witness 12/b and inquest papers to the all india institute of medical sciences for post mortem examination along with constable krishan pal singh (public witness 6) and constable tirath ram. ram chander was also sent along with the said constables for his medical examination to the all india institute of medical sciences.(4) in the meanwhile public witness 15 r.s. bindra, sho police station badarpur arrived at the spot and took over investigation of the case and si vinod kumar joined him. tin ex. p-l, in which abdul majid was to take water, was found lying near the water tap and it was taken into possession vide memo ex. public witness 2/b in presence of abdul majid and mohd. tejum. thereafter the sho accompanied by the si, the police staff and public witness s. abdul majid and mohd. tejum went in search of the accused persons and on receiving secret information, proceeded towards mehrauli badarpur road and found kartar singh and harbans singh near hamdard nagar with the lathis ex. p2 and ex. p3 in their hands. they were arrested and searched and search memos ex. public witness 2/c and ex. public witness 2/d were prepared in respect of kartar singh and harbans singh respectively. the lathis were taken into possession vide memos ex. public witness 2/e and ex. public witness 2/f. thereafter the police party proceeded in search of the third accused, namely, baldev singh but he could not be traced and the case property was brought and deposited in the malkhana of police station badarpur.(5) in the all india institute of medical sciences, ram chander was examined by dr. vipin gupta who found swelling and tenderness on his left arm and observed that the injury was simple in nature and was caused by a blunt weapon. he prepared his report ex.pw 13/a. after his medical examination. ram chander was brought to the police post where the sho recorded his statement.(6) the post mortem examination on the dead body of the deceased was conducted by dr. s.r. sharma (public witness 12) at 11.15 a.m. on 3rd may, 1982 in the mortuary of the all india institute of medical sciences. dr. sharma found the following injuries on the person of the deceased : (1)one elliptical abrasion, obliquely placed over the 9th and 10th ribs on the side of chest of left side. total size of the abrasion was 13 cm x 4 cm, colour purple, with intervening areas normal at both ends, but involved in the middle. (2)abrasion above right lateral malleolus of the foot of size 0.5 cm x 0.5 cm. (3)abrasion over the right knee on lateral aspect, size 1 cm x 1 cm.(7) he found fracture of 9th and 10th ribs along the mid axillary line of the left side and further found that there was a rupture across spleen. he opined that the cause of death was haemorrhage and shock as a result of rupture of spleen and that the injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. he further opined that the time since death was 12 hours. he prepared his report ex. public witness 12/a. dr. sharma converted the clothes of the deceased in a sealed parcel, took out the blood of the deceased and converted it into a sealed phial and along with his sample seal handed over these articles to the constables. the dead body of the deceased was handed over to his relations and the constables brought the above said articles and handed them over to si vinod kumar who deposited them in the malkhana of police station badarpur.(8) the sho arrested baldev singh on 5th may 1982 from near badarpur border and his search memo ex. public witness 15/a was prepared.(9) during the investigation of the case, si davindersingh(pwii)who was working as the police draughtsman in the crime branch, visited the scene of occurrence on 26th may 1982 and prepared scale site plan ex. public witness that the scale of i cm equal to 1 meter. sho r.s. bindra got transferred from police station badarpur and handed over the investigation to new sho and si roshan lal (.pw 16) collected scale site plan from si davinder singh and recorded his statement as also the statements of some other police officials.(10) after completion of the investigation, the challan was filed in the 'court of the metropolitan magistrate who committee all the three appellants to the court of session where charges were framed against them and on their pleading not guilty to the same, they were tried, found guilty and sentenced as already noted above. 11. the appellants have challenged their conviction and sentences in this appeal.(11) the prosecution case that the deceased was dragged from near the water tap ingalino. 25 to the spot near the house of the appellants in gali no.26 finds support from the statements of public witness s. abdul majid and ram chander.(12) ex. public witness 14/b is the site plan slated to have been prepared at the spot by the si immediately after his arrival there on the date of occurrence and ex. public witness 11/a is the scale site plan prepared by si davinder singh on 26th may 1982 on the pointing out of public witness s abdul majid and ram chander. these site plans show the water tap in gali no. 25 where the dispute arose and the arrow marks on these site plans show the passage through which the deceased is stated to have been dragged by the appellants to near their house in gali no. 26. these site plans show that galis no. 25 and 26 are separated by some houses and an open plot of land surrounded by boundary wall having one opening in each of the two galis. the site plans indicate that the deceased was firstly dragged from near the water tap to the opening of the above said boundary wall in gali no. 25 and then in the open plot and was dragged to gali no. 26 from the opening of the boundary in that gali. a persual of the scale site plan ex. public witness i i/a shows that the deceased was dragged to a distance of about 12 meters in gali no. 25 and about 20 meters in the open plot before he was assaulted in gali no. 26. this means that the deceased was dragged to a distance of 32 meters before being assaulted no mark of injury caused by such dragging was found on the person of the deceased either in the post mortem report or in the inquest report prepared by the si at the spot and it is not believable that no injury would have been caused on the person of the deceased if he was, in fact, dragged. it may also be pertinent to note that neither of the above said two site plans show any marks created on the ground either in the gali or in the plot because of the dragging of the deceased by the appellants.(13) according to si vinod kumar he found abdul majid and some relations of the deceased present at the spot and thereafter he recorded the statement ex. public witness 2/a of abdul majid. in his statement on oath. si vinod kumar has not made any mention about the presence of mohd. tajem at the spot at the time of his arrival there. neither he nor the sho, who had reached the spot and had taken over the investigation before the dead body of the deceased was sent for post mortem examination, had recorded the statement of either ram chander or molid. tajem. the sho has deposed that he recorded the statement of mohd. tajem only after the polios party. had traced kartar singh and harbans singh and had arrested them and recovered lathis from them. he has further deposed that he had recorded the statement of ram chander when ram chander returned from the all india institute of medical sciences after his medical examination and further that ram chander left the police post soon after his statement was recorded by him. according to ram chander, he had returned to the police post at about i a.m. on the night between nd and 3rd may, 1982 and had remained at the police post till sun rise. this shows that although ram chander remained with the police for some hours, his statement was recorded some time before he left the police post at the time of sun rise. if ram chander and mohd. tajem were present at the spot and the version as given in the fir was available to the police, no explanationn is coming forward as to why the statements of these witnesses were not recorded at the spot. the fir is shown to have been recorded at 1 1.45 p.m. on 2nd may 1982 on the basis of the rukka ex. public witness 2/a allegedly sent from the place of occurrence at 1 1.15 p.m. there is a corresponding entry ex.pwio/b in the daily diary 'a' at seriall no. 14. this entry admittedly does not contain the names of either the accused persons or of the witnesses. this names of the accused arid/or witnesses also do not find mention either in the inquest report (ex. public witness 14/c) or in the application (ex. public witness 12/b) under which the inquest papers were sent to the all india institute of medical sciences.(14) it is correct that the copy of the fir was also received by dr. s r. sharma who conducted the post mortem examination on the dead body of the deceased but the fact cannot be lost sight of that the post mortem report (ex. public witness 12/a) shows that the inquest papers and the dead body of the deceased had been deposited in the all india institute of medical sciences only at 11 a.m. on 3rd may 1982. constable krishan pal singh (public witness 6}, who along with constable tirath ram had gone with ram chander for his medical examination and had also taken the dead body of the deceased for postmortem examination, has deposed that after ram chander had been medically examined, he had come back along with him and after leaving ram chander at the police post, had gone back to the mortuary where the dead body was lying in the custody of constable tirath ram. although it has been stated by the duty officer that a copy of the fir had been sent to the ilaqa magistrate by special messenger, but neither the said copy has been brought on record nor is there any other evidence to support this part of the statement of the duty officer. in the presence of all these circumstances, it cannot be said that the argument, that the fir was recorded latter on and not at the time shown therein, is without any force.(15) coming to the statements of the three eye-witnesses, it may be noticed that whereas in his statement ex. public witness 2/a abdul majid had stated that after dragging the deceased, appellant kartar singh had given a lathi blow in the waist of the deceased and at the same place lathi blow was given by harbans singh who took the lathi from the hand of baldev singh and baldev singh had given kick blow in the testicals of the deceased, in his statement on oath made in court, he deposed that the lathi blows were given by kartar singh in the waist and stomach of the deceased and at that very two places, lathi blows were also given by harbans singh and that kick blow was given in the abdomen of the deceased near the portion joining the thigh. according to ram chander, when he went to the spot, the appellants were dragging the deceased and when he tried to rescue him from the clutches of the appellants, he received a danda blow on his left wrist at the hands of harbans singh and he withdrew and thereafter the deceased was dragged to gali no. 26 where baldev singh gave a kick blow on the lower portion of the stomach of the deceased and on receiving that blow, he fell down on the ground and while the deceased was lying on the ground, harbans singh and kartar singh gave dealings to him with dandas and such blows were given on the back and waist of the deceased.(16) according to mohd.tejum, he was attracted to the spot on hearing the alarm being raised by ram chander and had seen harbans singh giving lathi blows on one of the hands of ram chander and had also seen appellant baldev singh giving kick blow on the lower portion of the stomach touching the right thigh of the deceased and at that time kartar singh and harbans singh had given lathi blows on the back/waist of the deceased. as noted above, public witness ram chander has deposed that he had tried to rescue the deceased while he was being dragged and at that time he had received a danda blow and had withdrawn if this is the position, public witness mohd. tajem could not have seen danda blow being given to ram chander as he admittedly came to the spot where the deceased was finally assaulted in gali no. 26. it may also be noted that when confronted with his statement ex. pw3/da it was found that mohd.'tejum had not made mention of the stomach, being the place where the deceased was stated to have been given lathi blows by kartar singh as also by harbans singh and similarly the place where baldev singh gave kick blow to the deceased, was not mentioned.(17) all the three witnesses hail from the same native place and they are known to each other since before they came to delhi. they have also been residing in the same building in tughlakabad extension, new delhi after coming to delhi. although it is admitted by the three public witness s that many persons had got collected at the spot at the time ofoccurrence,noother resident of the mohalla has been examined by the prosecution. although the injuries found on the body of the deceased could have been caused by one person, the prosecution has named three persons, all belonging to one family as the assailants of the deceased, by ascribing different roles to them. the delay in recording the first information report and the statements of mohd. tejum and ram chander left sufficient time to make consultation and to give coloured version of the incidents with a view to implicate even the innocent persons. in these circumstances it cannot be said that the prosecution has been able to bring home the guilt to the appellant(18) in the result, we accept the appeal, set aside the conviction and' sentences passed on the appellants and acquit them. they are on bail. they need not surrender to their bonds which stand discharged.