Ajit Bharihoke, J.@mdashAppellant Rambir Singh, on being convicted in Sessions Case No. 181/92, FIR No. 355/91, Police Station Okhla Industrial Area for the offence punishable u/s 302 IPC and sentenced to undergo imprisonment for life in terms of order on sentence dated 29th September, 1995, has preferred the instant appeal.
2. Briefly stated, case of the prosecution is that on 22th November, 1991 at about 7.12 PM, lady Constable Sunita of PCR informed the Duty Officer, Police Station Okhla Industrial Area, on wireless that one person had been stabbed in Kalyan Vihar, Okhla, Phase-I, New Delhi. The information was recorded as DD No. 12-A and copy of DD report was handed over to PW16, SI Hari Singh for investigation. SI Hari Singh along with PW15, Head Constable Vikram Singh and Constable Desh Raj went to the place of occurrence at Kalyan Vihar but, no eye witness was available. The injured person had been removed to the hospital, so he left PW15, Head Constable Vikram Singh to protect the scene of crime and went to AIIMS, New Delhi along with Constable Desh Raj and collected MLC of the injured Latoori Ram, Ram Snehi and Virender Singh. The Doctor declared Latoori Ram and Virender Singh fit for statement. PW16, SI Hari Singh recorded the statement of Latoori Ram Ex.PW2/A and sent it to the Police Station with his endorsement thereupon for the registration of the case.
3. Latoori Ram PW2 is stated to have disclosed that on 22.11.1991 at about 12.30 PM, he came to his jhuggi and parked his cycle on the road in front of jhuggi of appellant Rambir Singh, who objected to parking of the cycle and insisted that the complainant should desist from parking his cycle there, otherwise consequences would be serious. Thereupon, complainant Latoori Ram removed the cycle. The appellant, however, threatened him that he would see him in the evening.
4. It was further stated that on the same day at about 6.30 PM, Latoori Ram PW2 and his brothers-in-law, Virender Singh PW1 and Ram Snehi were returning from a feast. When they reached near the jhuggi of the appellant, he came out of his jhuggi holding an open knife in his hand and challenged them saying that he would not spare them. The appellant is stated to have first attacked PW1 Virender Singh with knife on his left arm and the left side of his neck. PW2 Latoori Ram and Ram Snehi tried to save Virender Singh PW1 but the appellant attacked complainant Latoori Ram with knife and pierced his right palm and also stabbed Ram Snehi (deceased) in his abdomen. Public persons tried to apprehend the appellant Rambir Singh but, he managed to run away. It was stated that the occurrence was witnessed by Bajinder Singh PW13 and some other persons. The injured persons were removed to the hospital by persons of locality.
5. The Investigating Officer recorded the statement of injured Virender Singh PW1 and thereafter he went to the spot of occurrence and prepared the rough site plan. He searched for the appellant Rambir Singh and apprehended him at about 9.50 PM while he was coming out of his jhuggi. On interrogation, the appellant made a disclosure statement that he has kept the knife in the space between wooden beam and the roof of his jhuggi but, the knife was not recovered and the appellant was put in the lockup.
6. On 23.11.1991, Duty Constable, posted at AIIMS, informed the local police about the death of injured Ram Snehi. On this, the offence of u/s 302 IPC was also added to the FIR and further investigation of the case was taken over by the SHO, Inspector Raghubir Singh. Body of the deceased Ram Snehi was sent for post mortem after the inquest proceedings. He recovered the weapon of offence i.e. the knife Ex.P5 from the space in between wooden beam and the roof of the jhuggi. The injuries suffered by PW1 Virender Singh and PW2 Latoori Ram were opined simple and grievous respectively. The Investigating Officer obtained the post mortem report wherein the Doctor concerned had opined that out of the five injuries found on the person of Ram Snehi, the injury No. 3 and 4 were sufficient to cause death individually as well as collectively. On completion of the investigation, the appellant was sent for trial.
7. The appellant was charged for offences punishable under Sections 302 and 307 IPC. He pleaded not guilty and claimed to be tried.
8. During trial, prosecution examined three eye witnesses. PW13 Bajinder Singh did not support the case of prosecution and he claimed that he was not present at the time of the occurrence and he later on heard that some quarrel had taken place between the accused (appellant) and Ram Snehi, Virender Singh and Latoori Ram. PW2 Latoori Ram complainant and PW1 Virender Singh, who had suffered injuries in the occurrence, however, supported the case of prosecution. PW2 Latoori Ram in his statement before the court deposed that on 22.11.91, he parked a cycle on the road in front of Jhuggi of the appellant and went to take meals at his jhuggi. When he returned back, the accused Rambir protested and told him to desist in future from parking a cycle in front of his jhuggi and he (Latoori Ram) responded that he had parked the cycle on a public road, therefore, the appellant should have no objection. Thereafter, the appellant threatened him that he would face the consequences in the evening. PW2 Latoori Ram further deposed that on the same evening at about 6.00 or 6.30 PM, when he, Ram Snehi deceased and PW1 Virender Singh were returning after attending a party, the appellant on seeing them came running with an open knife in his hand and threatened to finish them off. Thereafter, the appellant inflicted knife injury on the left arm and left side of neck of PW1 Virender Singh. When he (witness) and Ram Snehi tried to rescue Virender Singh, the appellant stabbed him(witness) with the knife and pierced his palm and also stabbed Ram Snehi in the abdomen. Some public persons tried to apprehend the appellant, but he managed to run away. Thereafter, they were removed to the hospital. PW1 Virender Singh also corroborated the version of the complainant PW2 Latoori Ram and deposed to the similar effect.
9. The learned Trial Court relying upon the testimony of the above referred two witnesses convicted the appellant for the offence of attempt to commit murder punishable u/s 307 IPC. He, however, acquitted the appellant of charge u/s 302 IPC because of the failure of the prosecution to prove the post mortem report and the cause of death of death of the deceased Ram Snehi.
10. The prosecution has not preferred appeal against the acquittal of the appellant on charge u/s 302 IPC. The appellant Rambir Singh, however, feeling aggrieved by the judgment of conviction and order on sentence, has preferred the instant appeal.
11. Learned Counsel for the appellant has submitted that the learned Trial Court has failed to appreciate that the testimony of above referred witnesses is not reliable because it suffers from contradictions and infirmities. He has pointed out that PW1 Virender Singh and PW2 Latoori Ram have contradicted themselves inasmuch as that PW1 Virender Singh in his cross-examination has stated that after the occurrence, he and Latoori Ram were taken by the jhuggi dwellers to the police post, whereas PW2 Latoori Ram has given a contradictory version by stating in the cross-examination that after the occurrence, neighbours took them to the hospital. He has also pointed out that PW1 Virender Singh in his cross-examination has stated that statement of Ram Snehi was also recorded by the police but the aforesaid statement has not been placed by the prosecution on the record which casts a shadow of doubt on the version of prosecution witnesses.
12. Human memory is short. Every event experienced by a person starts fading in memory with the passage of time. Therefore, some contradictions in the testimony of witnesses are bound to occur particularly when there is a time gap between the recording of their statement in the court and the date of the event. Further, different persons are endowed with different capabilities of observation and memory etc., which also contributes to minor contradictions in the testimony of eye witnesses. Ex.PW6/A is the MLC of PW1 Virender Singh and Ex.PW7/A is the MLC of PW2 Latoori Ram. From the above referred MLCs, it transpires that both PW1 Virender Singh and PW2 Latoori Ram sustained injuries in the occurrence. Therefore, their presence at the time of occurrence cannot be doubted. The contradiction pointed out in their testimony, in our considered view, does not touch the material aspect of the case and can be attributed to lapse of memory. On overall reading of testimony of PW1 and PW2, we find that they have deposed in a natural manner and have withstood the test of cross-examination. Thus, there is no reason whatsoever to doubt the truthfulness of their version. Much significance cannot be attributed to the statement of PW1 Virender Singh that statement of the deceased Ram Snehi was also recorded by the Investigating Officer, as suggestion to that effect has been categorically denied by PW16, SI Hari Singh who is the initial Investigating Officer of this case.
13. The learned Counsel for the appellant has further submitted that admittedly PW1 Virender Singh and Ram Snehi (deceased) are brothers as well as the brothers-in-law of PW2 Latoori Ram. He has submitted that in view of the aforesaid close relationship between the witnesses and the deceased, they obviously fall within the category of interested witnesses and their testimony should have been considered by the learned trial Judge with a pinch of salt. He has pointed out that only independent witness of the prosecution in this case PW13 Bajinder Singh has not supported the case of the prosecution, therefore, the learned Trial Court should have extended benefit of doubt to the appellant instead of placing reliance upon the testimony of the interested witnesses PW1 Virender Singh and PW2 Latoori Ram.
14. The law relating to the appreciation of evidence of interested/related witness is well settled. In the matter of
15. The learned Counsel for the appellant has submitted that as per the prosecution case, the motive for the crime was an earlier altercation between PW2 Latoori Ram and the appellant which took place in the afternoon on the issue of parking of cycle by Latoori Ram in front of jhuggi of appellant. He has submitted that PW2 Latoori Ram in his cross-examination has demolished the aforesaid story of motive by stating that he had no quarrel with Rambir on the day of incident at 12.30 PM. He has also drawn our attention to respective testimony of PW1 and PW2 who have categorically stated in the cross-examination that they had no previous enmity with the appellant. Thus, he has urged us to extend benefit of doubt to the appellant due to lack of motive in this case.
16. We do not find any merit in this contention. The law in respect of the motive is well-settled. Though in a criminal trial, motive is a relevant fact, but in order to bring home the guilt of the accused it is not necessary that in each and every case the motive must be proved. More often than not, what impels a man to cause a particular crime is only within his knowledge. It is difficult to find out the motive, which led to the commission of a particular crime, in each and every case.
17. In
It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes, however, the motive is shrouded in the mystery and it is very difficult to locate the same. If, however, the evidence of eye witnesses is credit-worthy and is believed by the court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant.
18. From the above, it is obvious that where the positive evidence against the accused is clear, cogent and reliable, the question of motive pales into insignificance. Thus, in our considered view, the lack of evidence to prove motive in this case by itself cannot be taken as a ground to reject the testimony of the ocular witnesses, which is otherwise truthful and reliable in view of discussion above.
19. Next submission of the learned Counsel for the appellant is that the recovery of weapon of offence knife Ex.P5 at the instance of the appellant is highly doubtful and this circumstance casts a shadow of doubt on the correctness of prosecution case. In support of this contention, learned Counsel for the appellant drawn our attention to the testimony of PW16 SI Hari Singh, wherein he has stated that on 22.11.1991, the appellant disclosed that he had concealed the knife in his jhuggi in the space between "kari" and roof of his jhuggi. PW16 SI Hari Singh had deposed that pursuant to the disclosure statement, he searched for the knife but it could not be recovered. However, according to a subsequent pointing-cum-search memo Ex.PW2/B, the knife was allegedly recovered on 24.11.1991 from the same space which was searched by SI Hari Singh on 22.11.1991. He has submitted that had the knife actually been there on 22.11.1991, it would have been recovered by SI Hari Singh on the same day. Therefore, a possibility of planting of knife between 22.11.1991 to 24.11.1991 cannot be ruled out.
20. In this regard, it is suffice to say that the learned Additional Sessions Judge as per the impugned judgment has not accepted the evidence relating to recovery of knife Ex.P5 on 24.11.1991 at the instance of the appellant. This, however, does not help the appellant because it well settled that non-recovery of weapon of offence by itself cannot be the reason to reject the eye witness account which is otherwise reliable and truthful.
21. The learned Counsel for the appellant has further submitted that FIR in this case has been manipulated. In support of his contention he has drawn our attention to column No. 5 of the FIR Ex.PW4/B which has been crossed instead of recording the name and address of the accused in the said column and submitted that absence of name of the accused in column No. 5 of FIR meant for that purpose raise a strong doubt that till the time of recording of the FIR Investigating Officer was not sure of identity of the real culprit.
22. PW4 Head Constable Kulwant Singh, Duty Officer, Police Station Okhla Industrial Estate, New Delhi has stated in the court that on 22.11.1991, he recorded FIR Ex.PW4/B on the basis of the Rukka Ex.PW2/A sent by SI Hari Singh. Perusal of the FIR Ex.PW4/B reveals that it was recorded on 22.11.1991 at 9.40 PM. No doubt in column No. 5 of the FIR, name and address of the appellant as accused has not been recorded, but perusal of Rukka Ex.PW2/A which is the basis of FIR Ex.PW4/B shows that the complainant Latoori Ram in his statement made to SI Hari Singh has named the appellant as the culprit who had stabbed him, PW1 Virender Singh and the deceased Ram Snehi. Therefore, it cannot be said that till recording of FIR the identity of the assailant was not known to the Investigating Officer or that the FIR has been manipulated to falsely implicate the appellant. Further Head Constable Kulwant Singh in his cross-examination has explained that he crossed column No. 5 in the FIR Ex.PW4/B as he was not personally aware about the identity of the accused. The explanation given by him appears to be reasonable. Thus, we find no infirmity in the FIR which may lead to the conclusion that it has been manipulated.
23. The learned Counsel for the appellant has further submitted that case of the prosecution is that the appellant was arrested by SI Hari Singh on 22.11.1991, whereas as per the remand applications dated 24.11.1991, 06.12.1991 and 20.12.1991 the date of arrest is 23.11.1991. He has submitted that aforesaid contradiction about the date of arrest points towards the tainted investigation and casts a strong doubt on the correctness of the prosecution case.
24. No doubt, in the above referred remand applications pointed out by the learned Counsel for the appellant, the date of arrest in the body of the application is 23.11.1991, but it is noticed that but for the remand application dated 24.11.1991, and also in all the aforesaid applications just above the signatures of the appellant Rambir date of arrest is given as 22.11.1991. Further, it is seen that in the first remand application which was moved on 23.11.1991, the date of arrest has not been mentioned and in the subsequent remand applications dated 17.01.1992 and 30.01.1992, the date of arrest of the appellant is mentioned a 22.11.1991. Therefore, it appears that the confusion about the date of arrest has occurred because of clerical error. It is pertinent to mention that even the appellant in his statement u/s 313 Cr.P.C., in answer to Q. No. 7 has stated that he was taken into custody by the Police on 22.11.1991 which admission set at rest the controversy about the date of arrest.
25. It is further submitted on behalf of the appellant that the prosecution has failed to examine the Doctor who prepared MLC of PW2 Latoori Ram and who conducted the post mortem of deceased Ram Snehi which has caused prejudiced to the appellant. Perusal of the impugned judgment would reveal that the benefit of non-examination of the Doctor concerned has already been extended to the appellant. The learned trial Judge has convicted the appellant u/s 307 IPC instead of Section 302 IPC because of the reason that cause of death of deceased Ram Snehi was not found proved because of non-production of the Doctor who conducted post mortem on the body of the deceased Ram Snehi.
26. Learned Counsel for the appellant has submitted that the prosecution has failed to examine the Investigating Officer, SHO Raghubir Singh, Inspector which has deprived the appellant of his valuable right to cross-examine him and bring out true facts on record. This has resulted in grave prejudice to the appellant in his defence as such he is entitled to benefit of doubt.
27. We do not find any merit in this contention. On perusal of record, it transpires that there are two Investigating Officers of this case. Initially and main investigation of the case was conducted by SI Hari Singh who has been examined as PW16. It is noticed from the record that almost entire material evidence of this case was collected by SI Hari Singh and even the statements of the eye witnesses u/s 161 Cr.P.C. were recorded by him and the appellant did get chance to cross-examine him. In our view, non-production of the subsequent Investigating Officer who collected formal evidence of the case and who was instrumental in the alleged recovery of knife at the instance of the accused which recovery has not been accepted by the learned Trial Court, is not so material. Therefore, in our considered view, non-production of the Investigating Officer has not resulted in any serious prejudice to the defence.
28. It is further submitted that the learned Trial Court ought not have relied upon testimony of PW1 Virender Singh and PW2 Latoori Ram as they themselves were suspects in view of the explanation given by the appellant in his statement u/s 313 Cr.P.C.
29. On perusal of statement of the appellant u/s 313 Cr.P.C., it transpires that the defence of the appellant is that he was not present at the time of occurrence and when he came back to his jhuggi after plying three-wheeler scooter on 22.11.1991, he was informed by persons present near the spot that PWs Virender Singh, Latoori Ram and Ram Snehi deceased had visited the shop of his wife with a plan to kidnap her and they had misbehaved with her and in the process a quarrel erupted amongst them and they stabbed each other with knives. He also explained that he immediately informed the police control room at telephone No. 100 and went to lodge report at the Police Station along with Nasib Singh, Ram Gadete and Satbir. He was assured by the police that they would go with him to the spot but in the meanwhile PWs Latoori Ram and Virender rushed at the Police Station with some white collar person and after secretly consulting with them police allowed them to go and he was detained and falsely implicated. He also explained that later on, while he was in custody, his wife and daughter were kidnapped perhaps by a gang. He moved application in that regard to the police and the court but his wife and children have not been traced as yet.
30. The learned Additional Sessions Judge rightly on consideration of evidence did not find the defence of the appellant plausible. He has discussed the explanation of the appellant and given reason for not accepting it in para 40 of the impugned judgment, which is reproduced as under:
40. He informed the police on P.C.R. and then went to Police Station to lodge the report but the injured persons managed with the police and he was got implicated in a false case. The defence of the accused is not plausible. No person of the locality has entered into the witness box from the side of the accused to depose that injured persons had their eyes on the wife of the accused. He has said that he went to the Police Station to lodge the report alongwith Nasir Singh and Ram Galte and Satbir. However, none of them has appeared in the witness box in support of his defence. Lady Constable Sunita of PCR has categorically denied that information regarding the incident was given to her on telephone by Rambir. The wife and daughter of the accused are stated to be not living on the given address. They are stated to have been abducted and kidnapped, most probably by the gang, who managed to bring Latoori Ram and Varinder from the Police Station. However, there is no evidence on the file to suggest that any such gang was ever existing. Consequently, much importance cannot be attached to the statement of the accused that he asked the police and made request to the court to direct the police to trace out his wife and daughter. The evidence on the file has not helped in convincing the court about the story as taken in the defence of the accused. Otherwise also, it does not seem plausible that the three injured would cause injury among themselves and then would implicate the accused in a false case especially when the motive of abducting the wife of the accused does not stand to reason. I do not find any force in the defence of the accused.
31. In view of the discussion above, we find no infirmity in the impugned judgment. We are of the considered view that the learned trial Judge has rightly relied upon the testimony of eye witnesses to convict the appellant u/s 307 IPC. The appeal is accordingly dismissed.
