JUDGMENT
Jaspal Singh, J.
(1) Amidst some of the posh colonies of South Delhi is a village known as Chirag Delhi. On June 5, 1983 at about 10.30 A.M., it lost one of its residents. He was stabled to death. Jai Bhagwan was his name. The prosecution claims that It was the handiwork of Raj Kumar. Pawan Kumar and Udhey Singh who too are residents of the same village. We are told that both the sides were consumed by the fire of hatred for each other and this provided the motive. Basant Ram, Deen Dayal, Kalu Ram and Murari Lal (Public Witness s 1, 2, 4 & 5 respectively) were cited as the eye witnesses. The trial court returned the verdict against the accused. It convicted and sentenced them under section 302 with the assistance of section 34 of the Indian Penal Co
(2) With as many as four persons produced by the prosecution as witnesses to the occurrence, it considers itself ensconced in a comfortable seat, and undoubtedly, if the witnesses are believed; the appellants would find themselves in deep woods. The question, however, is, should they be ? It is this question which stares at us and craves for an answer. How much we wish we too could, like Sherlock Holmes, nod our head and say : “Elementary. Dr. Watson.”
(3) First, a brief introduction of the central characters. Bant Ram, Deen Dayal, Kalu Ram and Murari Lal (Public Witness s 1, 2, 4 and 5 respectively). All residents of the same village. All intertwined. All closely knit with the deceased. Ail sworn enemies of the appellants. All endowed with an astounding capacity to manufacture gargantuan lies.
(4) Basant Ram was arrested under sections 107/151 of the Code of Criminal Procedure. The complainant was the uncle of Raj Kumar, appellant. In another criminal proceeding initiated on the complaint of the deceased against Raj Kumar appellant, he appeared as a witness for the deceased. His son was an accused in a case under section 354/506 of the Indian Penal Code. The complainant was the daughter of Udhey Singh appellant. Even after the arrest of the appellants, he moved applications for cancellation of their bail.
(5) Deen Dayal (Public Witness -2) is the cousin of the deceased He was a co-accused Along with Jai Bhagwan deceased, and Kalu Ram (Public Witness -4) in a case under sections 147; 148 149 458 323 of the Indian ‘Penal Code. He lodged a complaint against the appellants under section 506 of the Indian Penal Code and cited Murari Lal (Public Witness -5) as a witness. He extended active support to Basant Ram in moving applications for cancellation of bail of the appellants and himself also moved such applications before the High Court.
(6) Kalu Rain (Public Witness -4) was a co-accused Along with Deen Dayal (Public Witness -2) and the deceased in a case under sections 147, 148, 149, 458 and 323 of the Indian Penal Code and before the occurrence he had lodged a report under section 506 of the Indian Penal Code against Raj Kumar appellant.
(7) Murari Lal (Public Witness -5) was cited by Deen Dayal (Public Witness -2) as a witness in a complaint lodged by him under section 506 of the Indian Penal Code against the appellant.
(8) With an introduction of the central characters over, time now for the scenario. However, first a little emphasis on the background. Village Chirag Delhi is not a small village dotted with a few homes here and there. It is a big sprawling village with a Chaupal surrounded by a cluster of houses and shops and the scene of occurrence was not only near the Chaupal but also at a place which witnesses lot of traffic. Number of residents of the village have telephones installed in their houses. The taxi stand is quite nearby and on foot it would hardly take ten to fifteen minutes to reach the police post.
(9) We must also not forget that relations of the appellants with the deceased were far from cordial. There were quarrels, too many and too frequent. There was litigation too and hardly a few days before the occurrence Raj Kumar, appellant had obtained an injunction order against the deceased. And what is equally important is that all the alleged eye witnesses knew about it. Actually, they too, a,s noticed above, had total alignment with t’ie deceased.
(10) What does the prosecution project before us ? It is June 5, 1983. Time, 10.30 A.M. Deen Dayal is sitting with Mlirari Lal outside the latter’s shop. Kalu Ram is busy putting up tents at the Chaupal. His son is to be betrothed. Basant Ram is entrenched on the stairs of his house. Enter Pawan Kumar, Raj Kumar and Udhey Singh. Pawan Kumar is armed with a hockey stick. Udhey Singh leaves Pawan’ Kumar and Raj Kumar near the Chaupal, proceeds to the house of the deceased, calls him out repeatedly, saying he will settle the disputes, on which Jai Bhagwan deceased accompanies him meekly. They reach the place where Pawan Kumar and Raj Kumar are. Raj Kumar catches hold of the deceased, tells him that they would finish him and thereby settle the disputes and day to day quarrels for all times to come. Pawan Kumar gives a hockey blow on his right shoulder with such force that it breaks into two pieces. Udhey Singh then catches hold of him from Ins neck and Raj Kumar takes out a knife from the pocket of his pent and plunges it in the left chest. The deceased falls down. All this is being watched by Deen Dayal. Kalu Rain and Murari Lal. They rush to the spot but only after the stabbing. The appellants take to their heals while extending a threat that anybody trying to apprehend them would be done to death. Suddenly, from nowhere, a three wheel scooter conies and the deceased is taken to the hospital by Deen Dayal. But before that Basant Ram too reaches the place of occurrence. attracted by the cries : “Jai Bhagwan maar diya maar diya and finds the appellants going towards their house with Pawan Kumar holding the broken lower portion of the hockey stick and Raj Kumar, a knife.
(11) At the hospital Deen Dayal meets the Duty Constable (H.C. Jai Parkash. Public Witness -20) tells him that the deceased had sustained injury “in a quarrel” and as soon a? the doctor declares him dead, rushes back to the place of occurrence where the police has already reached on account of the information conveyed not by any ‘eye witness or a village” but by the Duty constable at the hospital, statement of Deen Dayal is recorded (Ex. Public Witness 2 A), endorsement is made (Ex. Public Witness 14 B) and on its basis formal F.I.R. is recorded (Ex. Public Witness 11 A). Later the Station House Officer (Public Witness -21) takes over the investigation and records the statements of Basant Ram, Murari Lal and Kalu Ram. The house of the appellants is also searched. What we find there ? Let us keep the question unanswered for the present. What is important to note is that an inquest report is prepared and the mortal remains of Jai Bhagwan are received by doctor along with the inquest report papers on June 6 at 11.30 A.M. who then subject them to dissection finding only one injury, an incised wound caused by a sharp edged weapon and sufficient to cause death in the ordinary course of nature. He finds no other injury.
(12) Should we believe the evidence produced by the prosecution ? Mr. D. R. Sethi, Advocate pleading for the appellants, wanted us to reject the prosecution story as incredible and the alleged witnesses to the occurrence as nothing but a bunch liars motivated by their ever-burning hatred for the appellants. On the other hand, Mr. M.S. Siddiqui, Advocate assisting the State, found everything above-board unassailable, unimpeachable.
(13) As noticed by us above, the allege eye witnesses to the occurrences are closely knit to each other. They had been with the deceased through thick and thin. What is common amongst them is their total hostility towards the appellants. They are not uninterested. They are not independent. They are totally partisan. The prosecution has brought them together. And only them. Why ? It is thickly populated village. The scene of occurrence is surrounded by houses and shops and the shops were not closed. They were open. The intersection has lot of traffic. Why then no evidence from an. independent source. ? Why not even a single witness whom We could call independent, umbiased. uninterested ? And then see how they are stationed, strategically speaking Deen Dayal goes to the shop of Murari Lal, purchases bidis and stays on there ostensibly to gossip with Murari Lal (It is another matter that as per Murari Lal he had come not to purchase anything but to gossip). Kalu Ram is Introduced near the Chaupal ostensible to fix Shamianas in connection with a betrothal ceremony ( which never takes place). Basant Ram is made to sit on the staircase of his house. (In the month of June, with summer saluting. After all, which other convenient place could be choose ?). And it is important–nay very important to remember that all of them knew fully well that the appellants were inimical towards the deceased. And yet, what do they do ? They perch themselves on their respective machans watch the killers coming from their house, one of them armed with a hockey-stick which can prove to be lethal, sec two of them stationing themselves (including the one armed with the hockey-stick) and the third going to the house of their would be prey. And yet. all this causes no alarm. No concern. Not even a ripple ! As if -all this was so normal. And what about Jai Bhagwan ? The would-be prey knows who is calling him. A sworn enemy. And yet. wonder, of wonders, he follows him meekly. Even Basant Ram is not alarmed. While the prey follows the killer mutely to the butchery, Basant Ram does inside his house to take his lunch. As if everything was so normal. The site plan (Ex.PW 8 A) would show that Jai Bhagwan deceased could easily see two of his other sworn enemies standing near the Chaupal, one armed with a hockey-stick. Any person with even little common sense, with even below normal reflexes, would have first refused to come out of his house. He would have asked to settle the dispute in his house itself. Secondly, he would never have ventured to go out, unarmed and unaccompanied, with a sworn enemy. Thirdly on noticing two others, one of them armed he would have made an attempt to wriggle out. And here is a person, who neither acts nor reacts and straight away becomes an easy prey. The witness too, act abnormally. They remain silent, mute spectators. No reaction at all. They watch dumbly. Do not get alarmed. Do not take steps to intervene. Dumb and numb. They move their limbs only after the event. Neither the victim nor the witnesses act normally. It is not that the witnesses are senile. They are conscious that their behavior would appear abnormal. So they mint an explanation, and it is that the incident of stabbing hardly took a few minutes and that while retreating, the appellants had threatened to kill anyone trying to intervene. Whereas, the first part is hardly an explanation because stabbing was only the culmination and not the beginning and the end, the second part is clearly an after-thought, for no such statement was made by anyone of them under section 161 of the Code of Criminal Procedure.
(14) The whole story is incredible. Would any man in his senses plan to kill another in broad day-light at a place surrounded by houses and shops near the Chaupal and under the steady glare of his sworn enemies ? Where was the urgency ? Where was the hurry ? Could the task: be not accomplished at a secluded place, in the dark and beyond the glare of hostile eyes ?
(15) We may recollect that while providing the background we laid emphasis on the topography of the village. The taxi stand is hardly a kilometer away. The police post can be reached in ten to fifteen minutes time if we cover the distance on foot. Number of houses in the village have telephones installed. And still, what do we find ? Nobody, not even Murari Lal. Kalu Ram. Basant Ram or Deen Dayal, makes any attempt to inform the police cither by engaging a taxi or by covering the distance on foot or even by telephone. Rather, on the contrary, what we find is that all the persons witnessing the occurrence, leave the scene of occurrence and retire into the cozy chambers of their houses. Incredible Incredulous is’nt it. And then, if Murari Lal, Basant Rani and Kalu Ram were really present, why none of them accompanied the deceased to the hospital ? Why this total unconcern ?
(16) We are asked to believe that Deen Dayal had seen the occurrence from A to Z. And what does he do ? He meets the Duty Constable at the hospital and faithfully informs him that deceased had been stabbed “in a quarrel”. He does not disclose the weapon of offence. He does not disclose the place where the stabbing had taken place. He does not disclose the time. And above all. he does not disclose the name or names of the assailants. Why ? Pray, Why ? It is because by that time he had known nothing, had seen nothing ? Sphinx like silence on such a crucial matter and that too by an allegedly most important eye witness, at the first and by means the most crucial opportunity, can neither be ignored nor brushed aside. Not that he says nothing. He does say something. Something of prime importance. Of extreme significance. Remember the scene, as narrated by Kalu Ram, Murari Lal, Basant Ram and Deen Dayal? Recollect it. Was there anywhere, at any time. even a semblance of a quarrel? A prey is stalked, trapped and killed, without even a syllable of protest on his lips. Without any resistance. And imagine Deen Dayal saying that he was stabbed in a “quarrel”? What does one make out of it? Only two conclusions can be drawn. Either he is not telling the truth or he knows nothing. Take any. Accept any. It nails the prosecution case. And. while we are still in the hospital, a last word. The Constable on duty says that when the Sub Inspector arrived in the hospital Deen Dayal was still there. If that was so, why did he make no statement before him at the hospital itself ?
(17) The more we have gone through the evidence, the more we have felt dismayed. For, truth seems to be the first casualty. It became a casually when the prosecution came out with a story highly incredible, when it made no effort to induct independent, uninterested witnesses and when it actually brought into the arena highly motivated persons who, we feel were actually never present at the scene. Let us proceed to untold something more. First, let us look at the evidence relating to the arrest of the appllants. As regards Udhey Singh, it is in the statement of Basant Ram and Deen Dayal that he was arrested from inside his house soon after the arrival of the police at the scene of occurrence. As per Kalu Ram, he saw Udhey Singh in die custody of the police at the place of occurrence at about 4 P.M. However, as per S. I. Jasbir Singh and Inspector O.P. Yadav, he was arrested at about 8.45 P.M. from near Ganda Nullah (which is quite far oif from the house of Udhey Singh). Whom should we believe? Let us now come to Raj Kumar. As per Inspector O.P. Yadav (Public Witness -21), Raj Kumar was arrested on June 8 while he was coming towards the village from the side of Shaikh Sarai and that at that time Basant Ram and Deen Dayal were present with the police party. Basant Ram, however, says no such thing. As per him on June 8, it was the police which had “told” him about his arrest. Although Inspector O. P. Yadav specifically names Deen Doyal and Basant Ram as the only two persons present at the time of the arrest of Raj Kumar. as per Deen Dayal, he was arrested in the presence of three persons, namely himself, Murari Lal and Kalu Ram. He thus excludes Basant Ra mand introduces two other persons. Significantly Kalu Ram (Public Witness -4) and Murari Lal (Public Witness -5) do not speak at all of his arrest in their presence. It is now the turn of Pawan Kumar. As per Basant Ram (Public Witness -1) on Tune 8 when Deen Dayal was being interrogated by the police, Pawan Kumar. appellant was also present in the lock up though he was not interrogated. However, as per Inspector O. P. Yadav he was arrested on June 9 from the Court room of the Metropolitan Magistrate who had granted police remand of Raj Kumar. appellant. With discordant notes flying all around, what sore of a symphony is this ?
(18) The second lie relates to dagger (Ex. P-1) and the piece of a hockey stick (Ex. P-2). The prosecution wants us to believe that they were recovered in consequence of a disclosure statement made by Raj Kumar appellant. The recoveries are claimed to have been made from his house opened with the key provided by him. What he find is that the evidence with regard to the disclosure statement itself is contradictory. Whereas, according to Basant Ram the disclosure statement was made at the police station. Inspector O. P. Yadav states that it was recorded at the place where he was arrested interestingly, Deen Dayal completely excludes the presence of Basant Ram at the time of the making of the disclosure statement. As per him, the disclosure statement was made in the presence of Kalu Ram and Murari Lal. Needless to say Kalu Ram and Murari Lal say nothing about it and if Inspector O. P. Yadav is to be believed neither Kalu Ram nor Murari Lal were present there at that time. These contradictions apart, where from did Raj Kumar produce the Key of the house? On his arrest, personal search was conducted and a memo (Ex. Public Witness 2 F) to that effect was prepared. It speaks of no key. However, the public witnesses to the recovery insist that. the key was with Raj Kumar. How does one explain it? Of course. Inspector O. P. Yadav has tried to wriggle out of this situation by saying’ that the key was provided by one of the ladies present in the house. This not only contradicts his. own witnesses, it poses yet another serious question. If the key was provided by a lady why her statement was not recorded? And why no memo was prepared? And while we are on it, yet another question which is disturbing us, is, as to why again the prosecution has cited only those highly interested witnesses? Why no other witness from the public was joined?
(19) We have lot more to say on the recoveries. If the recoveries had actually been made on June 8, why did the Investigating Officer take the police remand of Raj Kumar on June 9, for affecting recoveries. The order passed by the Metropolitan Magistrate on June 9. (Ex. Public Witness 21 IDA) speaks of remand having been sought on that ground. Does it not expose the falsity of the alleged recoveries of June 8 ?
(20) Disclosure statement and the recoveries apart, the lie is further nailed by the medical evidence. We are told that the incised wound was caused by a knife and the prosecution wants us to believe that the said fatal injury was caused by dagger Ex. P-1 got recovered by Raj Kumar appellant. How- over, as per Df. Anil Aggarwal (Public Witness -6) who conducted the post-mortem, the dagger Ex. P-1 was “un-likely to produce the injury found on the person of the deceased.” Thus the prosecution stands condemned by its own expert witness.
(21) A word on the piece: of hockey (Ex. P-2) also. We are told that after the hockey ..tick had broken into two pieces, Pawan Klimar took away with him its lower part. Frankly speaking we are intrigued over this evidence. No. Foxed may be the better word. If Indians can claim any familiarity with any sport . the game of hockey probably would rank at the top. A hockey stick is used as a sport or as a weapon of offience, by having a firm grip of its long handle. In both the cases at least wec have never seen it being handled from its looped lower portion. We find absolutely no reason to believe (nor is there any evidence to show) that Pawan Kumar had handed the hockey-stick from Is looped lower portion while hitting at the deceased. And, if the hockey-stick was used by holding’ its long handle, then after its breaking into two pieces what would have remained in his hands would have been its handle portion and not its looped lower portion. How come, he took away the lowe,r portion? But then here seems to be a case where everything that happens is abnormal. Rules of probabilities seem to have no role to play here.
(22) Yet another lie is also nailed by Dr. Anil Aggarwal. Remember what the eye witnesses have stated ? The deceased was given hockey-stick blows and with such great force that the hockey-stick broke Into two pieces. They are very particular about the below given on his right shoulder. Such :a blow can easily cause fracture. However, Dr. Anil Aggarwal, who conducted the post mortem speaks of only injuries caused by a sharp-edged weapon. He, in other words, found no injury, not even a bruise, on the body which could be caused by a blunt weapon. What should one make out of it? Would we be too harsh to the prosecution, under the ciremstances. in assuming that actually the witnesses know nothing, had seen nothing?
(23) The courts in India with a view to ensure a fair trial, have time and again lad emphasis on the desirability of prompt lodging of first information report as, with delay creeps in the danger of introduction of coloured versions. twisting of facts manufacturing of stories and introduction of false witnesses. The danger being inherent, the Courts have been insisting upon some additional safeguards too. One of those safeguards is drawn from section 154 of the Code of Criminal Procedure which enjoins that once the first information is recorded, the substance thereof “shall be entered” in the Daily Diary. The Police Rules framed under inspiration of this provision make it more exploit, it is unfortunate that the safeguard, so salutary, has been given a complete go by even in a case like the present one where stakes are so enormous. We say so as in the Daily Dairy Report (Ex. Public Witness 11 B & 11 , we find the names of the accused nor any description of the weapon of offence and significantly even the names of Kalu Ram, Murari Lal and Basant Ram as witnesses to the occurrence find no mention therein.
(24) The inquest report is second such document which is regarded as a document of vital importance. (The law enjoins its preparation with utmost promptitude. Of course, the prosecution in the present case, has made an attempt to show that it was prepared on the day of.” occurrence itself. Inspector Yadav has started so. However, here is a big question mark. If the inquest report had been prepared on June 5 itself, why was it handed over to the doctor on June 6 at 11.30 AM? Not that Inspector Yadav has not made an attempt to cover the delay. He says it was already quite late when the report was prepared and as such it was not sent other doctor the same day. Was it really so ? The report as per the Inspector, was ready by 6 P.M. Can it be termed as too late’ Is 6 p.m. in the month of June an unearthly hour ” We find the explanation highly unsatisfactory and unconvincing. We rather feel inclined to agree with Mr. Sethi that there was inordinate delay in the preparation of the report and that the prosecution has merely come cut with a lame story too cover it.
(25) The Courts have insisted upon yet another safeguard. It is with regard to the sending of the first information report to the concerned Metropolitan Magistrate. Section 157 of the Code of Criminal Procedure enjoins the sending of the same “forthwith”. The duty is absolute. It is mandatory. However, what do we find in the present case? “The report allegedly sent has not been proved. The Metropolitan Magistrate concerned has also not been examined. The best evidence to prove that the report had actually been received by the Magistrate has thus been kept back. Of course. Constable Nawal Kishore (Public Witness -22) has been examined to show that the report was received by Magistrate. However, in the absence of that original report, in the absence of proof of any endorsement of the Magistrate and in. the absence of the Magistrate himself to prove its receipt, we are disinclined to believe the Constable. However, even if it be assumed that the report was sent and served, as per the Constable, it was served at 7.30 P.M. The Magistrate lived hardly six kilometres from the Police Station Why then this inordinate delay? Interestingly even the constable does not lag behind in minting an explanation. He says his motor-cycle broke down on the way and it took nim four hours to get it repaired. We refuse to believe him. No mechanic has been produced. No bill or voucher is. on the record. No such entry was got made in the Daily Diary on his return to the police station. A statutory safeguard cannot be allowed to be defeated in such a manner. We refuse to be a party to it.
(26) It is gratifying to see Delhi Police boosting its. image by its efficiency. The last three or four years particularly have brought a see-change. It is so heartening. But will somebody, somewhere, some day, open to them the law reports also ? And fell them to respect them too?
(27) Wisemen rightly warn not to assess the worth of witnesses in isolation, for. such an approach blurs the vision, dulls the perception and imprisons the perspective. After having examined the evidence in its totality what do we find? We find dark clouds of doubt howe ring all around. The benefit obviously, goes to the appellants. The appeals arc accepted. The sentence and conviction is set aside and the appellants acquitted.