JUDGMENT
M.R. Verma, J.
1. The four accused/ appellants (hereafter referred to as the ‘accused’) in these two appeals (Cr. A. No. 129 and Cr. A. No. 247 of 1999) have been convicted and sentenced under Section 302 read with Section 34 of the Indian Penal Code to life imprisonment and to pay fine in the sum of Rs. 2000/- each and in default of payment of fine, to undergo rigorous imprisonment for a period of two months by the icarned Sessions Judge, Kangra at Dharamshala by the impugned judgment. Since both these appeals arise out of the same judgment, therefore, are being disposed of by this common judgment. 2. The case of the prosecution against the accused is that on October 27, 1997 during day time there was a ‘Bhandara’ and during night a ‘Jagrata’ in the house of one Saran Dass of village Sarah. At about 9.00 p.m. accused Kapoor Chand came to the ‘Jagrata’, stayed there for a few minutes and kept on searching for some-one and then abruptly left. Some-time after his leaving the place, PW-6 Onkar Chand and PW-7 Parminder heard “Maardiya Bachao” cries from the road which passes at a distance of 20 feet from the place where the ‘Jagrata’ was in progress. On hearing the cries, they rushed to the road side and on reaching the place from where the cries were coming, they found the accused persons beating Manjeet on the road behind the house of one Parkash Chand. Accused Anuj was causing injuries to Manjeet with a ‘Khukbri’, accused Manu alias Varun and Lala alias Sunil were hitting Manjeet with kick and fist blows and accused Kapoor Chand was inflicting injuries on his person with ‘Sotha’. The intervention by PWs. Onkar Chand and Parminder to rescue Manjeet proved futile and accused Kapoor Chand declared that he would kill Manjeet. Due to the injuries caused by the accused persons to Manjeet, he fell on the road and the accused persons then bolted away from the place of occurrence. PW-6 Onkar Chand asked PW-7 Parminder to inform the family members of Manjeet about the incident. In the meanwhile. PW-5 Desh Raj, on hearing the noise from the road, rushed to the place of occurrence. On the way he met PW-7 Parminder who informed him that the accused were beating Manjeet, On reaching the place of occurrence, PW-5 Desh Raj found Manjeet lying injured on the road and PW-6 Onkar Chand was crying ‘Manju Ko Maar Diya’. By that time PW-8 Partap Singh had also reached on the spot and was informed of the incident by PW-6 Onkar Chand and he also saw the accused running. PW-5 Desh Raj asked Manjeet as to who had injured him. Manjeet, who was in agony, named accused Kapoor Chand, both his sons and son of Amin Chand as the assailants. Thereafter parents of Manjeet and many other villagers came to the spot. A taxi van coming from Gagal side was stopped and Manjeet was taken to Zonal Hospital, Dharamshala in the van where they reached at about 9.45 p.m. Manjeet was checked by PW-1 Dr. VaneetAggarwal who declared him dead at 10.00 p.m. and issued Medico Legal report Ext. PW-1/A. PW-1 Vaneet Aggarwal vide letter Ext. PW-1 /B informed the Station House Officer, Police Station, Sadar, Dharamshala that a patient had been brought to the hospital after having been hit by an axe. On receipt of the letter Ext. PW-1 /B, report Ext. PW-12/Awas recorded in the daily diary of the said Police Station. Thereafter PW-17 Inspector Kishan Chand, S.H.O. Police Station, Dharamshala went to the hospital along with other police officials. On reaching the hospital, he recorded statement of PW-5 Desh Raj under Section 154 of the Criminal Procedure Code Ext. PW-5/A on the basis of which formal FIR. Ext. PW-13/A was recorded in the Police Station. The photographs of the dead-body of Manjeet were taken by PW-4 Amrit Lal negatives whereof are Exts. PW-4/A-7 to PW-4/A-12 and the photographs are Exts. PW-4/A1 to PW-4/ A6. PW-17 Kishan Chand prepared the inquest report Ext. PW-3/B and got the post mortem examination of the dead-body of Manjeet conducted. On such examination PW-3 Dr. K. S. Katoch found the following injuries on the dead-body of Manjeet vide post mortem report Ext. PW-3/D:
1. There was an incised wound on the back of head, left side behind the left ear measuring 8 cm. x 1.5 cm. wide in the middle, bone deep and outlayer of bone was also cut.
2. An abraded contusion on the front of nose 1 cm. x 1.5 cm. irregular dark red in colour.
3. A linear contusion 3 cm. long on the right side of the face, 1.5 cm. lateral to angle of mouth.
4. Irregular contusion on the left side of the neck, 4 cm. below the ear, 6 cm. long, 0.3 cm. wide dark red in colour.
5. Contusion on the left side of the back, behind the left shoulder; 4 cm. x 1 cm.
6. A contusion in front of left thigh 8 cm. long, 1/2 cm. wide, dark red colour, 20 cms. below the anterior superior iliac spine.
7. Incised wound on the lateral aspect of left thigh, 19 cm below iliac crest, 2 cm. x 1 cm. x 1 cm. deep.
8. Contusion on the left ghiteral region 4 cm. below the iliac crest, 3 cm. x 0.2 cm. dark red in colour.
9. Incised wound under left knee, laterally 4 cm. below petalla, 4 cm. x 1 x 1/2 cm.
10. An incised wound on the medial aspect of left thigh, 7 cm. below pubic tubercal 3 cm. x 1 cm. x 1/2 cm.
11. 2 cm medial to injury No. 10, there was an incised wound 3 cm. x 1 cm. x 1/2 cm.
12. Incised wound medial aspect of left thigh 14 cm. above knee measuring 1.5 cm. x 1.5 cm. x 1 cm.
13. Incised wound on the medial aspect of right thigh, 23 cms. above right knee measuring 2 cm. x 1.5 cm. x 1/2 cm.
14. Incised wound on the lateral aspect of right thigh, 12 cms. below the anterior superior iliac spine 1.5 cm x 2.5 cm. x 3 cm. deep.
15. Incised wound on right side of the chest on the side of back, 18 cm. from right axilla, 2.5 cm. long and 1 cm. wide.
16. An incised wound on the left buttack 5 cm. away from the midline and 4 cm. below the posterior superior iliac spines 1.5 cm. x 0.7 cm. x 1.5 cm. deep.
17. On the back of the left side incised wound 8 cm. below the glutial fold 2.5 cm. x 1.5 cm. x 1 cm.
18. An incised wound on the back of left leg medial and below to injury No. 17, 4 cm. x 1 cm. x 5 cm.
19. Incised wound on the right buttock 13 cms. below the iliac crest 9 cm. away from midline 3 cm. x 1 x 1 cm. Another incised wound 3 cm. below this injury 1.5 cm. x 1 cm. x 1 cm.
20. Incised wound on the right thigh back, 13 cm. above knee, 3 cm. x 1 x 1 cm. Corresponding to the injury described above the clothes also show tears on the respect positions.
He has opined that the cause of death of Manjeet was shock due to haemorrhage due to injury to the vital organs, namely, liver and lung caused by sharp weapon. The injuries aforesaid were ante mortem in nature and sufficient to cause death in natural course of events. The probable time which elapsed between injuries and death was less than 2 hours and between death and post mortem examination was 12 to 24 hours. The viscera was also preserved by this witness for chemical analysis and was handed over to the police which, in turn, sent it to the State Forensic Science Laboratory, H. P. for analysis. As per report Ext. PW-3/C received from the said laboratory no poison or alcohol was found in the viscera. PW-3 also took in possession the wearing apparels of the deceased and after sealing them, handed over to the police for chemical analysis. Accused Anuj Kumar, Varun Kumar and Sunil Kumar were arrested by the police on October 28, 1997. On that day accused Anuj Kumar made a disclosure statement Ext. PW-5/B in the presence of PWs. Purshotam and Desh Raj. On October 28, 1997 PW-17 Krishan Chand, Investigating Officer went to the spot at 5.30 a.m. along with accused Anuj and took the photographs Exts. PW-4/A-13 to PW-4/A-15, prepared the spot map Ext. PW-17 /A, collected /took in possession the blood which was lying on the road and grass in the presence of PWs. Partap Chand and Roshan, made it into sealed parcel Ext. P-11 vide memo Ext. PW-8-A. Thereafter pursuant to the disclosure statement Ext. PW-5/B the ‘Khukhri’ Ext. P-l was recovered at the instance of accused Anuj and was taken in possession vide memo Ext. PW-5/C and sketch of the ‘Khukhri’ Ext. PW-5/D and the site plan of the place of recovery Ext. PW-17/F were prepared. The wearing apparels of accused Anuj Kumar, i.e. blue ‘Pant’, one chequered shirt and one sweater, all stained with blood, were taken in possession vide memo Ext. PW-9/A. Blood stained wearing apparels, i.e. chequered shirt, pant, Tericot, black jacket and a pair of ‘Kanchi Chappels’ which accused Varun Kumar was wearing at the time of occurrence were also taken in possession vide memo Ext. PW-17/B. The blood stained white-shirt, ‘Pajama’ and ‘Chappel’ which accused Kapoor Chand was wearing, were taken in possession vide memo Ext. PW-17/C. Blood stained Tericot shirt, blue pant, woollen sweater, a pair of ‘Kanchi Chappel’ which accused Sunil Kumar was wearing at the time of occurrence were taken in possession vide memo Ext. PW-17/D. One pair of black leather shoes which accused Anuj was wearing at the time of occurrence, were also taken in possession vide memo Ext. PW-17/E.
3. On October 29, 1997 accused Kapoor Chand made a disclosure statement Ext. PW-10/A about the ‘Sotha’ and pursuant to said statement, got ‘Sotha’ Ext. P-2 recovered on October 30, 1997 vide memo Ext. PW-11/A. Sketch of ‘Sotha’ Ext. P-2 is Ext. PW-11/B and the site plan of the place of recovery is Ext. PW-17/G. The blood and blood-stained grass collected from the place of occurrence vide memo Ext. PW-8/A and the shoes/Chappels and the clothes of the accused they were wearing at the time of occurrence and were taken in possession vide memos Exts. PW-9/A, PW-17/B to PW-17/E, clothes of the deceased taken in possession by PW-3 Dr. K. S. Katoch at the time of post mortem of the dead-body of Manjeet, ‘Khukhari’ Ext. P-l and ‘Sotha’ Ext: P-2 taken in possession vide memos Ext. PW-5/C and Ext. PW-11/A respectively were sent to the State Forensic Science Laboratory for analysis and the report received from the said laboratory is Ext. PW-17/K. Case of the prosecution further is that on October 27, 1997 accused Kapoor Chand, Varun and Sunil Kumar were also medically examined in Zonal Hospital, Dharamshala by PW-1 Dr. Vaneet Aggarwal and injuries were found on their persons and he accordingly issued the Medico-legal Certificates Exts. PW-1 /C, PW-1 /D and PW-1 /E. One of the two injuries found on the person of accused Kapoor Chand was grievous and as per opinion given by PW-2 Dr. S. P. Swamy this injury was more in favour of self-inflicted injury than homicidal. Statement of accused Kapur Chand under Section 154 of the Criminal Procedure Code Ext. PW-19/A was recorded by PW-19 Dile Ram, ASI and on its basis formal FIR Ext. PW-15/A was recorded at Police Station, Dharamshala. The sum and substance of this report is that Varun and Sunil informed Kapur Chand that they were beaten up by Manjeet. Accused Kapoor Chand then went out in search of Manjeet to find out as to why Manjeet had beaten Varun and Sunil. When he finally met Manjeet on the road and inquired from him as to why he had beaten his boys, Manjeet retorted that he had beaten them and he (Kapoor Chand, accused) could do whatever he liked and saying so he gave a fist blow on the face of Kapoor Chand who fell down on the road and when he got up, Manjeet gave him another blow with a knife. Kapoor Chand thereafter ran to his house where his wife dressed his hand with a cloth and then he left for hospital in his vehicle. Finally, in this case registered at the instance of accused Kapoor Chand, final report Ext. PW. 19/B for cancellation was submitted. Police recorded another FIR. Ext. PW-15/B at the instance of Champa Devi, wife of accused Kapoor Chand containing the allegations that on October 29, 1997 a group of Jat extremists burnt their Jeep and were threatening to burn their house.
4. On being satisfied of the commission of an offence under Sections 302/34 of the Indian Penal Code by the accused persons, the officer-in-charge of Police Station, Dharamshala submitted a charge-sheet against them to the concerned Court and on receiving the case on committal, the learned Sessions Judge, Dharamshala tried the accused on a charge under Section 302 read with Section 34 of the Indian Penal Code.
5. To prove the charge, the prosecution examined as many as 19 witnesses.
6. The accused in their statements under Section 313 of the Criminal Procedure Code denied the prosecution case as a whole and accused Kapoor Chand, Anuj and Sunil Kumar claimed that Anuj and Varun were beaten up by Manjeet and they informed Kapoor Chand about it. Accused Kapoor Chand then alone went to the place of occurrence and was beaten up by Manjeet and his five or six companions and their Jeep was set on fire. So many persons collected on the spot and the mob caused injuries to Manjeet and that they have been falsely implicated. Accused Sunil Kumar has claimed that he has been falsely implicated due to his relation with Kapoor Chand and he was not present at the spot. He has further claimed that injuries sustained by him were caused to him by the police while he was in custody.
7. The accused led defence to prove that the public was not satisfied with the investigation and there was a demand to apprehend the other accused and to get the matter investigated by C.B.I, and examined DW-1 Pramodh Singh and DW-2 Satjeet. The latter produced memorandums addressed to the Governor of Himachal Pradesh, copies whereof are Exts. DW-2/A and DW-2/B.
8. The learned sessions Judge convicted and sentenced the accused vide impugned judgment as aforesaid. Hence these appeals by the accused persons.
9. We have heard the learned counsel for the accused persons and the learned Deputy Advocate General. Mr. M. S. Chandel, learned counsel for the accused took us very meticulously through the evidence on record and the impugned judgment.
10. The basic contention around which the other contentions for the accused revolve is that the statements of PW-5 Desh Raj, PW-6 Onkar Chand, PW-7 Parminder Singh alias Babalu and PW-8 Pratap Singh are not cogent, reliable and trustworthy.
11. PW-5 Desh Raj has supported the contents of the FIR, Ext. PW-15/A and the prosecution version. He has stated that on hearing some noise and hearing his brother calling that some quarrel was going on, he went towards the road from where the noise was coming. On the way he was informed by Babalu (PW-7 Parminder Singh) that Manju (Manjeet) had been killed by Kapoor Chand, his sons and younger son of Amin Chand, namely, Lalla alias Sunil Kumar. Then he. immediately went to the spot and saw Manjeet lying on the road, PW-6 Onkar Chand was shouting “Manju Ko Maar Diya”. Mate Pratap Chand (PW-8) was also present there. He has further stated that the road is at the back of the house of Prakash Chand at a distance of about 10 feet from the place of occurrence and the bulb at that time was lighted. He goes on to state that he took his face close to that of Manju and asked him as to who had beaten him. Manju who was crying in agony, on being questioned three or four times, named accused Kapoor Chand, both his sons and son of Amin Chand and when asked as to where he was hit, he showed his head and stopped talking. He identified the accused as the persons named by Manjeet as the assailants. He has further stated that thereafter other people gathered there and parents of Manjeet also reached there, and in the meanwhile a van came on the spot from Gogal side in which Manjeet was removed to the hospital. Mother of Manjeet, PWs. Parminder Singh, Pratap Chand and two-three other persons accompanied Manjeet in the van. He took the father of Manjeet to the hospital on his scooter. They reached in the hospital at about 9.45 or 10.00 in the night and Manjeet was taken to emergency O. T. where he was declared dead after some time. He has further stated that the police came there and his statement Ext. PW-5/A was recorded. He has further stated that on reaching the spot, police took photographs and took in possession the blood-stained earth and thai, the police recorded disclosure statement Ext. PW-5/B made by accused Anuj and pursuant to such statement, Anuj got recovered ‘Khukhari’ Ext. P-1 along with its sheath which was taken in possession by the police vide memo Ext. PW-5/C. The material admissions which emerge in the cross-examination of this witness on which the accused rely to discredit his testimony are that the aforesaid four witnesses are ‘Jats’ and accused are ‘Rajputs, that when he reached on the spot, Manjeet was in serious condition, that a case was registered against him in the year 1996 regarding a quarrel with accused Sunil, that he did not see a Jeep standing at a distance of 10 to 15 feet from the spot, that a newly purchased Jeep of accused Anuj was burnt and that the place from where ‘Khukari’ Ext. P-1 was recovered is accessible to one and all.
12. PW-6 Onkar Chand has stated that along with Babalu alias Parminder (PW-7) he had gone to see ‘Jagrata’ at about 8.00 p.m. on October 27, 1997. At about 9.00 p.m. accused Kapur Chand came there and sat there for about two or three minutes while looking around and then left. Thereafter cries of “Maar Diya Bachao” were heard from the road-side whereupon, along with PW-7, he went to the spot and saw that manjeet was being beaten near a ‘Pipal’ tree by accused Kapoor Chand with a ‘Sotha’, accused Anuj was beating him (Manjeet) with ‘Khukhari’ and accused Varun and Sunil were giving fist blows and slaps. At that time there was bulb-light coming from the back wall of the house of Prakash Chand which is towards the place of occurrence. He tried to stop Kapoor Chand and to snatch the ‘Sotha’, but Kapoor Chand said that he would kill Manjeet. He then asked PW-7 Parminder to go and call the family members and himself tried to rescue Manjeet who fell down on the road. Pratap Chand (PW-8) came there and by that time accused had run away. He informed Pratap Chand that Manjeet had been beaten by the accused. He has further stated that Desh Raj (PW-5) came there and on his inquiring Manjeet said that he was beaten by Kapoor Chand, Manna, Anu and Lalla. Then people from ‘Jagrata’ and parents of Manjeet came on the spot. Then a taxi came from Gagal side in which Manjeet was removed to the hospital but he did not go with them. The admissions made by him in his statement whereon his statement is sought to be discredited by the accused are that Desh Raj (PW-5) is his brother and that 20 to 25 persons were present at the ‘Jagrata’ when he heard the cries but these persons kept on sitting.
13. PW-7 Parminder Singh in his examination has fully supported the version of PW-6 Onkar Cliand and has further stated that when he was sent by Onkar Chand (PW-6) to inform the family members of the deceased, on the way Desh Raj (PW-5) met him and informed him (PW-6) of the occurrence and then near the house of Manjeet, his sister met him and he told her to call her parents and he himself returned to the spot, He has further stated that by that time many persons had gathered on the spot and on arrival of a van from Gagal side, Manjeet was removed therein to the hospital and he also accompanied him to the hospital where they reached at about 9.30 or 9.45 p.m. and Manjeet was taken to the operation theatre where after some time he was declared dead. The admissions made by this witness in his cross-examination which the accused relied to discredit him are that Onkar Singh (PW-6) and Desh Raj (PW-5) are his real uncles, that Manjeet was in serious condition when he fell on the road after receiving the injuries, that no one from ‘Jagrata’ had reached on the spot when he and Onkar Chand (PW-6) reached there despite cries by Manjeet and their shouts for help.
14. PW-8 Pratap Chand has stated that on October 27, 1997 at about 8.30 or 9.00 p.m. when he was standing on the lintle of his house, he heard cries of “Maar Diya Maar Diya Chhurao” and he ran towards the road. When he reached there he saw Manju who was lying on the road and saying “Mujhey Maar Diya”. He has further stated that Onkar (PW-6) who was present on the spot, said that he raised cries but none came and that Kapoor Singh, his sons Man Singh, Varun and son of Amin Chand named Raju had run away alter beating manjeet. He has further stated that he also saw them running. He identified accused Sunil as the assailant son of Amin Chand in the Court. His further version is that Desh Raj (PW-5) was also seen by him on the spot and was talking to Manjeet but he went away to make a telephonic call but the telephone was dead. Then he came back to the spot. Then a Jeep came there in which Manjeet was removed to the hospital. He has further deposed that on the next day police came to the spot at about 6.00 a.m. and took in possession the bloodstained tarcoal, soil and grass in his presence and the presence of Roshan Singh vide memo Ext. PW-8/A and he identified the container thereof as Ext. P-11. The admissions made by this witness in his cross-examination relied by the accused to discredit his version are that he did not state portion ‘A’ to ‘A’ of statement mark ‘B’ (Ext. PW-17/H) to the police that Baldev Singh etc. are his collaterals and that Jeep of accused Anuj was burnt.
15. The first and the foremost ground on which the credibility of the aforesaid witnesses is sought to be impeached is that all of them are interested witnesses because all of them are near relations of each other and the deceased, and there is enmity between them and the accused.
16. It is true that these witnesses are closely related inter se and to the deceased. However, there is no evidence to prove any enmity between the accused and PWs. Onkar Chand, Parminder Singh and Pratap Singh nor has been suggested to them that they had inimical relations with the accused. It is however admitted by PW-5 Desh Raj that in the year 1996 a case was registered against him regarding a quarrel with accused Sunil Kumar.
17. It is now well settled that a witness cannot be discredited merely because he is a near relation of the victim particularly a victim done to death or that there was some dispute between the accused and the eyewitness. In the course of natural human conduct a near relation will not leave out the real culprit and rope in an innocent person. The Hon’ble Supreme Court while dealing with the question of value to be attached to the statements of such witnesses in Lakhwinder Singh v. State of Punjab 1992 Cri LJ 3958 : AIR 1993 SC 87 held as follows:
7… In our view, simply on the score that the deceased was related to the eye-witnesses or previously there were some disputes between the appellant and the eye-witnesses, their testimonies do not deserve to be discarded because in our view, the testimony of the said eye-witnesses was otherwise convincing and the same also stood corroborated by other facts established by the prosecution.” Also see 1994 Cri LJ 1980 : 1994 AIR SCW 1526.
18. In view of the above proposition of law, the statements of PWs. Desh Raj, Onkar Chand, Parminder Singh and Pratap Chand, if otherwise reliable, cannot be discredited merely because they were related to the deceased or that a case was registered against PW-5 Desh Raj regarding a quarrel with accused Sunil Kumar.
19. The next contention of the learned counsel for the accused is that the aforesaid PWs., who are the basic witnesses, are not the genuine witnesses and have been introduced subsequently and their names as such have not been disclosed at the earliest. This contention is based on the submissions that admittedly there was ‘Jagrata’ at the house of one Saran Dass at a distance of about 15 feet from the place of occurrence but none from amongst the persons attending the ‘Jagrata’ has been examined and produced. It was submitted that the persons attending the ‘Jagrata’ would have been the most natural witnesses of the occurrence and it is unbelievable in view of the natural human conduct that none of those attending Jagrata’ came to the spot on hearing the noise/cries nor saw the incident. Therefore, non-production of independent witnesses in fatal to the prosecution case.
20. In a criminal case instituted on a police report the earliest opportunity to disclose the names of witnesses is the First Information Report. A perusal of the FIR. Ext. PW-13/A recorded on the basis of statement of PW-5 Desh Raj under Section 154 of the Criminal Procedure Code Ext. PW-5/A. reveal that therein these four witnesses are mentioned as such. Therefore, it cannot be said that their names were not disclosed at the earliest. PWs. Onkar Chand and Parminder Singh, who witnessed the beating, were present in the ‘Jagrata’ and came to the spot on hearing the noise. It is not suggested to either of these witnesses in their cross-examination that they were not present in the ‘Jagrata’ or they did not go to the spot from ‘Jagrata’ on hearing the noise as claimed by them on oath. On the contrary, it is evident from the contents of the FIR. Ext. PW-15/Alodged by accused Kapoor Chand that when he went to the place of ‘Jagrata’ to enquire about the whereabouts of Manjeet, Babalu (PW-7 Parminder Singh) was present there, and accused Kapoor Chand did enquire from him about the whereabouts of the deceased. PW-8 Pratap Chand claims to have heard the noise of “Maar Diya — Maar Diya–Bachao” while he was on the lintle of his house at a distance of 150 feet from the place of occurrence and on hearing the noise, rushed to the spot. There is no suggestion to the witness that cries from the spot could not be heard at his house or that he did not hear such cries nor came to the spot. PW-5 Desh Raj claims to have come to the spot from his house on hearing the noise. He has denied the suggestion that he was not present on the spot and had been a false witness because of his relationship with the family of the deceased. As seen above, the version regarding arrival of these witnesses to the place of occurrence does not appear to be unnatural or unreliable.
21. It is not true that other persons present in the ‘Jagrata’ did not come to the spot at all It emerges from the records that some other participants in the ‘Jagrata’ had also come to the spot but by the time of their arrival the accused had left the place after causing injuries to the deceased. Non-arrival of all those sitting in the ‘Jagrata’ to the spot immediately on hearing the noise, cannot be termed as unnatural conduct. Moreover, the people usually try to keep themselves away from being named as witnesses even if they have seen the occurrence for various reasons impelling them to give privacy to the personal interest over the interest of the State, society and the other persons.
22. In this regard the Hon’ble Supreme Court in Appabhai v. State of Gujarat AIR 1988 SC 696 : 1988 Cri LJ 848 held as under:
11…It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilance. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of a pathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner. In Rana Pratap v. State of Haryana (1983) 3 SCC 327 : AIR 1983 SC 680 : 1988 Cri LJ 1272 O. Chinappa Reddy J. speaking for this Court succinctly set out what might be the behaviour of different persons witnessing the same incident. The learned Judge observed (at p. 330) of SCO : at 682 of AIR:
Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help, others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic: and unimaginative way.
12. There may be some of the reactions. There may be still more. Even a man prowess may become pusillanimous by witnessing a serious crime. In this case, the Courts below, in our opinion, have taken into consideration of all those aspects and rightly did not insist upon the evidence from other independent witnesses. The prosecution case cannot be doubted or discarded for not examining strangers at: the bus stand who might have also witnessed the crime.
23. Thus primarily there is nothing on the record to show that any person(s) other than PWs. Onkar Chand, Perminder Singh, Pratap Chand and Desh Raj had witnessed the occurrence or a part thereof. Secondly, if there was any, his being so, did not come to be noticed nor appears to have volunteered to give the eye-account of what such person might have seen. In these circumstances, the contention that the prosecution case suffers from want of production of any other person who may be termed as disinterested and independent witness, cannot be accepted.
24. It was further contended for the accused that the alleged occurrence took place during night and there is no cogent and reliable evidence to prove that in view of the night time, how the witnesses had identified the assailants and seen the weapons of offence. It is further submitted that the version of the witnesses that there was some bulb lighted on the back of the house of Prakash Chand by which the spot was lighted, is not believable because such source of light has neither been shown in the site plan nor in the photographs of the spot and the owner of the house having such bulb, has also not been examined and it does not find mention even in the First Information “Report.
25. The contention as has been raised, deserves to be rejected since PWs. Desh Raj, Onkar Chand and Parminder Singh have stated that there was a lighted bulb at the back of the house of Prakash Chand facing the place of occurrence. It has not been suggested to these witnesses or any other witness that such a bulb was not there nor it has been suggested that due to darkness, they could not identify the assailants nor could see the weapons of offence. Thus, the statements of the material witnesses on this count cannot be disbelieved. No doubt, in the site plan Ext. PW-17/A or the protographs Exts. PW-4/A-13 to PW-4/A-15 of the spot the bulb has not specifically been depicted but it has been mentioned in the marginal note No. 4 in the site plan Ext. PW-17/A that mark ‘D’ in the plan is the house of Parkash Chand which had a bulb on its back wall facing the road where the occurrence took place.
26. In the First Information Report there is no mention of the source of light. However, want of such minor details in the First Information Report is of no use and consequence. Examination of Parkash Chand was also not necessary to prove the existence of the bulb at the back of his house, moreso, in view of the unchallenged testimony of the witnesses on this count. It is not disputed that the witnesses and the accused are of the same village and known to each other. Therefore, identity of the assailants by the concerned witnesses cannot be doubted. Thus, even this contention for the accused cannot be sustained to disbelieve the prosecution version.
27. It was further argued for the accused that there is no evidence to prove that any blood-stains were found on the clothes of PWs. Onkar Chand and Harminder Singh who, admittedly, attempted to save the deceased from the accused. Therefore, the statements of these witnesses are unreliable. The contention cannot be upheld for the reason that the process of intervention by these witnesses does not seem of the nature and to the extent that their clothes would have got visible blood stains. From their statements it appear that Onkar Chand tried to stop Kapoor Chand and to snatch the ‘Sotha’ from his hand. It is ordinary human conduct that when a person is being beaten by a group of persons armed with deadly weapons, the person who may intervene to save the victim, will try 1:o Lake control of the assailants and not the victim unless the assault has ceased and one can safely reach and hold the victim.
28. To impeach the statements of the witnesses regarding dying declaration by the deceased, it was further contended by the learned counsel for the accused that firstly there is varience in the statements of the witnesses about what the deceased had stated, secondly, the deceased at the relevant time was incapable of making any statement. To support his contention, the learned counsel has referred to the statement of PW-1 Dr. Vaneet Aggarwal who has stated that the probability is there that Manjeet might have become unconscious immediately after receiving the injuries, the contents of the statement Ext. PW-5/Athat “MANJU URAF MANJEET KO KAPOOR CHAND VA USKE LARKON AUR AMIN CHAND KE LARKE LALA NE MAAR DIYA HAI” which could be stated at the relevant time only if Manjeet was either dead or unconscious, the contents of Ext. PW-5/A about the words spoken by the deceased and the statements of PW-5 Desh Raj, PW-6 Onkar Chand and PW-10 Pratap Chand who have stated about the dying declaration by the deceased are in different words. It was also pointed out that when Manjeet was asked about the injury, he showed his head instead of showing the part of the body where the fatal injury was caused and this also creates doubt about the truthfulness of the version regarding dying declaration. In support of this contention the learned counsel has relied on Darshana Devi v. State of Punjab (1995) 4 Crimes 225 wherein the Hon’ble Supreme Court held as follows:
10. There is variance in the statements of the two witnesses with regard to the exact words allegedly used by the deceased. According to PW-2, the deceased had stated that the appellant had sprinkled kerosene oil on him when he was lying asleep and had burnt him, while Lachhmi Devi, PW-1 did not attribute any such statement to the deceased. PW-1 reiterated in her cross-examination “all that Madan Lal told me was that he had been burnt by Darshana Devi by sprinkling kerosene oil”. Even though an oral dying declaration can form basis of conviction, in a given case, but such a dying declaration has to be trustworthy and free from every blemish and inspire confidence. The reproduction of the exact words of the oral declaration in such cases is very important. The difference in the exact words of the declaration in this case detract materially from the value of the oral dying declaration.
29. There are minor variations about the exact words used by Manjeet while making the oral statement about vhe assailants. In Ext. PW-5/A the words spoken by the deceased are that “MUJHE KAPOOR VO KAPOOR KE DONO LARKON VA AMIN CHAND KE LARKE LALA NE MUJHE MAAR DIYA HAI”.
30. According to PW-5 Desh Raj, on his questioning as to who had beaten him, the deceased had named Kapoor Chand, both his sons and younger son of Amin Chand. The witness has not quoted the exact words used by the deceased as mentioned in the statement Ext. PW-5/A. PW-6 Onkar Chand has stated that on being questioned by Desh Raj, the deceased had informed that Kapoor Chand, Manna, Anu and Lalla had beaten him. PW-10 Pratap Chand in his examination has stated that he saw Desh Raj (PW-5) on the spot who was talking to the deceased but he (the witness) left for making a telephone call. Evidently, he is not aware as to what was told by the deceased to Desh Raj. Thus, the witnesses have not quoted the exact words spoken by Manjeet but have made their statements in the narrative form. PW-1 Dr. Vaneet Aggarwal has also stated that probability is there that Manjeet Singh might have become unconscious immediately after receiving the injuries. It is also in the statement of PW-5 Desh Raj that when he asked Manjeet as to where he was injured, he showed his head whereas the fatal injuries were on liver and lung as opined by PW-3 Dr. K. S. Katoch vide postmortem report Ext. PW-3/D and the statement on oath. Be it stated that the opinion of PW-1 Dr. Vaneet Aggarwal about the probability of the deceased having become unconscious immediately after receiving the injuries is only a probability and opinion. PW-3 Dr. K. S. Katoch, who conducted the post mortem of the deceased, on being questioned in this regard in his cross-examination has denied the suggestion that a person sustaining injuries of the type as sustained by the deceased will get unconscious immediately after receiving such injuries. Then there are statements of eye-witnesses about the deceased having raised cries by spoken words. There was an injury on the head of the deceased as is evident from the post mortem report Ext. PW-3/D. Therefore, the deceased on being asked as to where he was hit, showing head is not a suspicious circumstance about his being in his senses at the relevant tin:;. No doubt he did not point out the fatal injuries but according to PW-5 Desh Raj, after having show, his head, the deceased had stopped talking. Thus, the only infirmity in this piece of evidence is that the witnesses have not stated the exact words spoken by the deceased. In view of this, the dying declaration cannot be relied upon to base the conviction of the accused solely on it.
31. It was further contended for the accused persons that there had been such delay in lodging the First Information Report which afforded opportunity for deliberations and it was due to deliberations and consultations that PWs.Desh Raj, Onkar Chand, Parminder Singh and Pratap Singh had been named and examined as witnesses to support false facts to implicate the accused persons in the commission of the offence falsely.
32. The occurrence took place at about 9.00 p.m. The injured was then removed to the hospital where he was declared dead around 10.00 p.m. The concerned Medical Officer sent the information about the death of the injured to the police vide Ext. PW-l/B at 10.10 p.m. It appears to have been received at the Police Station at 10.15 p.m. In the normal course the information would be recorded in the Daily Dairy and thereafter the Officer deputed for investigation/spot would go to the spot which was the hospital in this case. PW-17 Kishan Chand, Inspector went to the hospital and, as stated by him, reached there at about 10.25 p.m. After reaching there he would have taken some time to see the dead-body, the doctor who had sent the information. It is evident from the statement of said doctor (PW-1) that at the time of arrival of PW-17 Kishan Chand in the hospital he was busy in conducting medical examination of Kapur Chand, Varun Kumar and Sunil Kumar. The recording of statement of PW-5 Desh Raj under Section 154 of the Criminal Procedure Code Ext. PW-5/A and the police proceedings thereon was concluded at 11.30 p.m. The statement Ext. PW-5/A was then sent to the Police Station for recording the Daily Diary and First Information Report which was recorded at 11.40 p.m. The special report then sent about the commission of the offence was received by the Chief Judicial Magistrate concerned at 1.00 a.m. In view of these facts, it cannot be said that statement Ext. PW-5/A was recorded by the police after deliberations and consultations to make out a false case against the accused. Since the aforesaid witnesses are named in the First Information Report, therefore, it cannot be believed that they are engineered witnesses.
33. It was further contended that the so called eye witnesses had not disclosed the names of the assailants immediately, evidently for the reason that the assailants could not be identified due to darkness of night, therefore, the statements of the P.Ws. giving alleged eye account of the occurrence cannot be believed and relied upon to convict the accused. To support his contention, the learned counsel has relied on the case Panda Nana Khare v. State of Maharashtra AIR 1979 SC 697 : 1979 Cri LJ 640 in which the accused was charged of committing murder of the deceased by throwing a big stone on his head while he was asleep. The only eye-witness deposed that on the night the incident occurred, he was sleeping along with the deceased, he woke up on hearing the shrieks of the deceased, found the accused running away, it being a moonlight night recognised the accused and called him by name, the accused thereafter turned his back but immediately ran away. The witness, however, did not immediately disclose the identity of the assailant to the persons who assembled there, nor to the physicians who attended the deceased under impression that it was a case of accident, nor to the victim’s real brother who lodged F.l.R. with the police. The explanation given by the witness for disclosing the name of the accused at the late stage was that the accussed was his sister’s husband and so he did not. want to implicate the accused. In view of these facts it has been held therein that the identity of the accused was disclosed at belated stage conviction could not be based on the testimony of the eye witness nor of those witnesses who asserted that, the eyewitness told the name of the accused to them immediately after occurrence.
34. We have already concluded here- in-above that the statements of the concerned witnesses about the identity of the assailant s cannot be disbelieved in this case. None of them in any manner delayed the disclosure of the names of the accused. They have named the accused as the assailants on the spot immediately after the occurrence and the accused have been named in the First Information Report as well. Therefore, the above proposition of law relied for the accused is not at all applicable to the facts and circumstances of the case in hand and as a consequence, the contention raised for the accused persons as aforesaid is not sustainable.
35. The learned counsel for the accused has further argued that the statements of the alleged eye witnesses are sought to be corroborated by the circumstantial evidence which, in fact, does not corroborate their statements but on the contrary render their version and the prosecution version highly suspicious and unreliable. To substantiate his contention, the learned counsel has relied on the following:
(1) That PW-1 Dr. Vaneet Aggarwal vide Ext. PW-l/B informed the police that the patient (deceased Manjeet) was brought to the hospital “after having been hit by an axe”, and the weapons of offence produced in evidence are ‘Khukhari’ and a ‘Danda’.
(2) That the ‘Danda’ allegedly recovered by the police at the instance of accused kapoor Chand is in no way connected with the offence and in view of (1) above, ‘Khukhari’ has been planted and recovered from a place accessible to all on the basis of alleged disclosure statement of accused Anuj who never made any voluntary disclosure statement to the police.
(3) That the Chemical Examiner had not specified the blood group allegedly found on the wearing apparels of the accused and therefore, does not connect the accused with the commission of the offence.
(4) That the case was registered by the police on the basis of public demand that the accused in the case had not been arrested and public complaints were made to the higher authorities that the culprits in the case had not been arrested and should be arrested, whereas the accused at that time had been, arrested and it is implicit in such demand that the witnesses examined by the prosecution had deposed falsely to implicate the accused persons who are innocent and the culprits in the case had not even been arrested
(5) That the accused were medically examined and were found to have sustained injuries. However, the injuries on their persons had not been explained by the alleged eye-witnesses or the prosecution showing that the so called eye-witnesses have not stated the truth.
(6) That the police did not take lawful action on the First Information Report lodged by Kapoor Chand about causing injuries to him by Manjeet and on the First Information Report lodged by his wife namely, Champa Devi about the setting on fire their new Jeep. Therefore, the investigating agency was biased against the accused persons and the investigation lacks fairness and introduced false evidence to implicate the accused persons.
36. It is true that P. W. 1 Vaneet Aggarwal vide Ext. P.W. 1/B informed the Police that a patient (Manjeet) was brought to the hospital “after having been hit with an axe”. However, there is nothing on the record to show as to who gave the information to P.W. 1 that Manjeet was hit with an axe. When examined in the Court, he has stated that the history of the case was given by the person who had brought Manjeet to the hospital. He has, however, not disclosed any name and is not in a position to state whether the father of Manjeet was one of those who brought Manjeet to the hospital or not. Therefore, the contents of his report Ext. P.W. 1 / A are neither shown to be based on the version of a known person nor on the history as given by him in the M.L.C. Ext. P.W. 1 /A. The basic document which contains the history of the patient in medicolegal case is the M.L.C. itself. It is evident from bare reading of M.L.C. Ext. P.W. 1/A in respect of Manjeet that the only history given therein is that of assault by some one. The weapon of offence allegedly used by the assailants has not been mentioned therein. It is also not mentioned in the M.L.C. Ext. P.W. 1/A as to who brought Manjeet to the hospital and when the report was sent to the police though the M.L.C. form contains columns in this regard which a Medical Officer is to fill in Therefore, the M.L.C. itself has not been drawn up by P.W. 1 with due care and caution. There is nothing in this Medicolegal Certificate on the basis on which this witness could inform the police that Manjeet was hit by an axe, therefore, this part of his report about the injuries having been caused to Manjeet with an axe seems to be flight of fancy and not based on any information not even on the history of the patient as given in the basic document having come into being first in point of time and the only record available with him to give his report. Therefore, the lapse on the part of this witness cannot be accepted to render the version of eye-witness as unreliable.
37. There is other aspect of the matter. Ext. P.W. 1 /B stating that Manjeet was “hit with an axe” was the initial information recorded by the police before recording the statement of P.W. 1 Des Raj under Section 154 of the Criminal Procedure Code and thus had the opportunity to reconcile the statement of Des Raj with the report of Dr. Vaneet Aggarwal (P.W. 1) and in a village where axes are commonly and in large number available, it would not have been difficult to show fake recovery of an axe as a weapon of offence. Therefore, the act of not reconciling the statement and the report, rather goes to show that the police acted fairly. The contention raised on this count, therefore, does not help the accused in any manner.
38. The ‘Danda’ Ext. P-2 is stated to have been recovered vide memo. Ext. P.W. 1 I/A on the basis of disclosure statement of accused Kapoor Chand Ext. P.W. 10/A. The disclosure statement Ext. P.W. 10/A was recorded by P.W. 17 Kishan Chand in the presence of P.W. 10 Pratap Chand and Dalip Kumar. P.W. 17 Kishan Chand has stated that the disclosure statement Ext. P. W. 10/A was recorded by him. He has not been cross-examined at all to suggest that this statement was involuntary or was not made at all. The statement of the Investigating Officer, thus, about the making of disclosure statement Ext. P.W. 10/Aby accused Kapoor Chand remains unchallenged in his cross-examination. P. W. 10 Pratap Chand who is an independent witness, has fully corroborated the statement of the Investigating Officer. It was though suggested to him that accused did not make any statement but the suggestion has been denied by the witness. It is not suggested that such statement was involuntarily made by the accused. In view of the above, making of the statement Ext. P.W. 10/A by Kapoor Chand is proved.
39. The recovery of ‘Danda’ Ext. P-2 consequent upon the aforesaid disclosure statement has been made vide memo. Ext. P.W. 11/A prepared by P.W. 17 Kishan Chand Investigating Officer and witnessed by P.W. 11 Mohinder Singh and Rameshwar Singh. P.W. 17 Kishan Chand, Investigating Officer has stated that the ‘Danda’ Ext. P-2 was recovered by accused Kapoor Chand from amongst the bushes and was taken in possession vide memo. Ext. P.W. 11/A. He has not been cross-examined at all even about the recovery of ‘Danda’ Ext. P-2 and his statement on this count also remains unchallenged in his cross-examination. P.W. 11 Mohinder Singh has fully corroborated the statement of P.W. 17 the Investigating Officer. It has not been suggested even to this witness that the ‘Danda’ Ext. P-2 was not recovered by accused Kapoor Chand. It has though been suggested to him that the place of recovery is accessible to all which has been denied by him. He has, however, admitted that the hedge from which the ‘Danda’ was recovered is near the path used by the public at large.
40. The ‘Khukhari’ Ext. P-l is stated to have been recovered pursuant to the disclosure statement Ext. P.W. 5/B of accused Anuj vide memo Ext. P.W. 5/C. The disclosure statement Ext. P.W. 5/B has been recorded by P.W. 17 Kishan Chand and is witnessed by P.W. 5 Des Raj and P.W. 9 Purshotam Singh and the memo. Ext. P.W. 5/C regarding recovery of ‘Khukhari’ along with its sheath Ext. P-1 has been prepared by P.W. 17 Kishan Chand and has been witnessed by P.W. 5 Des Raj, P.W. 9 Purshotam Singh and Piar Singh. The Investigating Officer (P. W. 17) has not been cross-examined at all about the making of disclosure statement Ext. P.W. 5/B and getting the ‘Khukhari’ along with its sheath recovered by the accused vide memo. Ext. P.W. 5/C. His statement, thus, remains unchallenged in this regard. P.W. 5 Des Raj has fully supported the statement of P.W. 17 regarding the making of disclosure statement and getting the ‘Khukhari’ along with sheath recovered by the accused Anuj Kumar. He has denied the suggestion that the ‘Khukhari’ was not recovered as alleged. He has, however, admitted that the place of recovery of the ‘Khukhari’ is accessible to all. P.W. 9 Purshotarn Singh has also fully supported the prosecution version regarding making of disclosure statement and getting recovered the ‘Khukhari’ by accused Anuj Kumar. He has been duly cross-examined for the accused but nothing favourable to the accused could be elicited.
41. The learned Counsel for the accused contended that the alleged disclosure statements are not voluntarily made and the consequential recoveries had been made from the places accessible to all. Therefore, neither the disclosure statements nor the recoveries are admissible as corroborative evidence. To substantiate his contention, the learned Counsel has relied on Smt. Santosh Kumari v. State 1973 Cri LJ 1651 (Him Pra) wherein it was held as follows:
20… Therefore, from this long interrogation the only conclusion that can be possible is that the accused was harassed and did not make any voluntary statement. This is supported by the testimony of P.W. 14 who says that the accused gave different versions during the period of interrogation from 10 a.m. to 3 p.m. In such a case where it is the result of a long interrogation and where the accused has made different versions during this long interrogation it would follow that he was subjected to harassment which renders this disclosure statement involuntary and as such inadmissible….”
42. As already seen here-in-above, there is no suggestion to any of the material witnesses that the disclosure statements were involuntary or accused made different statements at different stages of the interrogation. Therefore, the proposition of law relied upon is not. at all applicable to the facts of this case. The disclosure statements Exts. P.W. 5/A and P. W. 10/A are reliable and admissible in evidence.
43. P. W. 11 Mohinder Singh has admitted that ‘Danda’ Ext. P-2 was recovered from a place accessible to all. The place of recovery as per the witnesses is amongst the bushes. P.W. 5 Des Raj has also stated that the place of recovery of’Khukhari’ Ext. P-1 is accessible to all. The place of this recovery is amidst the cluster of sugarcane. There has been no delay in effecting these recoveries. The places covered by bushes and cluster of sugarcane cannot be said to be so open as to make something kept there visible to all. There is nothing on the record from which it may be inferred that the incriminating articles were planted at the places of recovery. Therefore, the mere fact that the places of recovery were accessible to all, does not render the recoveries inadmissible.
44. The view we have taken here-in-above is fully supported by the proposition of law laid down by the Hon’ble Supreme Court in State of Himachal Pradesh v. Jeet Singh 1999 Cri LJ 2025 : AIR 1999 SC 1293, wherein it was held as follows:
26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is “open or accessible to others”. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disintered its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
45. It has been stated by the Investigating Officer (P.W. 17) and the witnesses of recovery of ‘Khukhari’ with sheath Ext. P-1 that the ‘Khukhari’ was blood-stained and on the sheath name of Varun Khanuria was written and it is so mentioned in the recovery memo. Ext. P.W. 5/C. On analysis, human blood was found on the ‘Khukhari’ vide report Ext. P.W. 17/K. According to P.W. 3 Dr. K. S. Katoch who conducted the post mortem examination of the dead body of Manjeet, all incised injuries including Injury No. 15 found on the dead body of Manjeet and were antimortem, could be caused by the blows given by the recovered ‘Khukhari’. No doubt the group of human blood found on the ‘Khukhari’ could not be determined, but in view of the eye account of the occurrence given by the eye-witnesses, the absence of comparison of blood group is of not much significance. The ‘Khukhari’, therefore, is proved to be one of the weapons of offence.
46. According to P. W. 11 Mohinder Singh, ‘Danda’ Ext. P-2 when recovered contained blood-stains. On analysis, the ‘Danda’ was found to have human blood-stains vide report Ext. P.W. 17/K. However, the group of the blood could not be ascertained. P. W. 3 Dr. K. S. Katoch has stated that antimortem injuries Nos. 5, 6 and 8 found on the dead body could be caused by ‘Danda’ Ext. P-2. Though there is no comparison of the group of the blood found on the ‘Danda’ but in view of the statements of eye-witnesses, this ‘Danda’ is also proved to be the weapon of offence.
47. In view of the above, there is no reason to disbelieve the recoveries of ‘Khukhari’ Ext. P-1 and ‘Danda’ Ext. P-2 at the instance of accused Anuj and Kapoor Chand respectively and such recoveries do lend corroboration to the statements of eyewitnesses.
48. It is true that the wearing apparels, ‘Chappals’ and shoes of the accused taken in possession by the police vide memos Exts. P.W. 9/A, P.W. 17/B, P.W. 17/C, P.W. 17/ D and P.W. 17/E, except one paid of ‘Chappal’ and ‘Sweater’ though found stained with blood, and the blood except on ‘Pant’ was human blood, but the blood group could not be ascertained. The learned Counsel for the accused, while relying on Kansa Behera v. State of Orissa 1987 Cri LJ 1857 : AIR 1987 SC 1507 has contended that mere finding of blood on the clothes of the accused is not a corroborating circumstance.
49. In case Kansa Behera v. State of Orissa 1987 Cri LJ 1857 (supra), the Hon’ble Apex Court held as under:
11. As regards the recovery of a shirt or a dhoti with blood-stains which according to the serologist reports were stained with human blood but there is no evidence in the report of the serologist about the group of the blood and therefore it could not positively be connected with the deceased. In the evidence of the Investigating Officer or in the report, it is not clearly mentioned as to what were the dimensions of the stains of blood. Few small blood-stains on the clothes of a person may even be of his own blood especially if it is a villager putting on these clothes and living in villages. The evidence about the blood group is only conclusive to connect the blood-stains with the deceased. That evidence is absent and in this view of the matter in our opinion, even this is not a circumstance on the basis of which any inference could be drawn.
50. Be it stated that in the case supra there was no eye-witness of the occurrence and the prosecution case was based entirely on circumstantial evidence. In the case in hand the prosecution has examined eye- witnesses (P. W. 6 and P.W. 7) of occurrence. The standard of reliability of circumstances in a case where eye-account of occurrence is available and in a case where there is no eye-account, cannot be the same for the simple reason that in the former case the circumstance is to corroborate eye-account given by the eye-witnesses whereas in the latter case the corroboration is of something not seen by any-one except the accused and the deceased. In the cases where eye-account of the occurrence is available, the reliability of a circumstance will depend to some extent cm the reliability of the eye-witnesses. We have already set out the version of the eyewitnesses and have also examined most of the contention to discredit the statements of the eye-witnesses but have not found any sustainable reason to totally disbelieve them. Therefore, it cannot be held that want of ascertaining the blood group in this case renders the detection of human blood on most of the wearing apparels of the accused of no use and consequence. On the contrary, it does corroborate the eye-account of the occurrence.
51. The above view is fully supportable in view of the proposition of law laid by the Hon’ble Supreme Court in case Khujji alias Surendra Tiwari v. State of Madhya Pradesh 1991 Cri LJ 2653 : AIR 1991 SC 1853, wherein it has been held as under:
10. Mr, Lalit, however, argued that since the report of the serologist does not determine the blood group of the stains on the weapon and the pant of the appellant, the mere find of human blood on these two articles is of no consequence whatsoever. In support of this contention he placed strong reliance on the decisions of this Court in Kansa Behera v. State of Orissa (1987) 3 SCC 480 : 1987 Cri LJ 1857 : AIR 1987 SC 1507 and Surinder Singh v. State of Punjab 1989 Suppl (2) SCC 21. In the first mentioned case the conviction was sought to be sustained on three circumstances, namely, (i) the appellant and the deceased were last seen together; (ii) a dhoti and a shirt, recovered from the possession of the appellant were found to be stained with human blood; and (iii) the appellant had made an extra-judicial confession to two witnesses when arrested. There was no dispute in regard to the first circumstance and the third circumstance was held not satisfactorily proved. In this backdrop the question for consideration was whether the first and the second circumstances were sufficient to convict the appellant. This Court, therefore, observed that a few small blood-stains could be of the appellant himself and in the absence of evidence regarding blood group it cannot conclusively connect the blood-stains with the blood of the deceased. In these circumstances this Court refused to draw any inference of guilt on the basis of the said circumstance since it was not ‘conclusive’ evidence. This Court, however, did not go so far as to say that such a circumstance does not even provide a link in the chain of circumstances on which the prosecution can place reliance. In the second case also this Court did not consider the evidence regarding the find of human blood on the knife sufficient to convict the appellant in the absence of determination of blood group since the evidence of P.W. 2 was found to be uninspiring and there was no other circumstance to connect him with the crime. In this case we have the direct testimony of P. W. 1 Komal Chand, besides the testimony of P.Ws. 3 and 4 which we have considered earlier. The find of human blood on the weapon and the pant of the appellant lends corroboration to the testimony of P. W. 1 Komal Chand when he states that he had seen the appellant inflicting the knife blow on the deceased. The appellant has not explained the presence of human blood on these two articles. We are, therefore, of the opinion that the aforesaid two decisions turned on the peculiar facts of each case and they do not lay down a general proposition that in the absence of determination of blood group the find of human blood on the weapon or garment of these accused is of no consequence. We, therefore, see no substance in this contention urged by Mr. Lalit.
52. It has been suggested to the material prosecution witnesses that there was mass agitation, demands and complaints that “other accused” in the case had not been arrested and as a consequence a First Information Report was recorded to the effect that some other accused persons excepting the accused were still at large and were not arrested by the police. To prove this version the accused led defence and examined DWs. Promodh Singh and Satjeet. The former is of no help as he has stated that no such record as sought to be proved was received/available in the office of the Director General of Police. D.W. 2 Satjeet had produced two applications copies whereof are Ext. D.W. 2/ A and Ext. D.W. 2/B.
53. The basic infirmity in the contention is that the suggested defence throughout is that “other accused” involved in the case had not been arrested. Thus, non arrest of “other accused” does not exculpate the present accused persons of the accusation against them. Secondly, none of the eyewitnesses has admitted that some other accused in the case were not arrested nor they are shown to be the signatories of any such complaint/demand. Even a copy of the First Information Report, allegedly recorded on such demand, has not been produced. Thirdly, the version of agitators/mobs is mainly based on hearsay and demands are outcome of mob-mentality. Lastly, the memorandums of demands Ext. D. W. 2/A and D.W. 2/B addressed to the Governor of Himachal Pradesh specifically… claim the accused persons to be the murderers of Manjeet. Apart from the accused persons in this case, Anil and Satish, nephews of accused Kapoor Chand, are named as co-accused. In the absence of anything on the record to suggest that eye-witnesses for any reason whatsoever wanted to save Anil and Satish, it cannot be believed that they were co-accused in the case. All the four accused are specifically mentioned as murderers of Manjeet. The other allegations are (i) that the accused persons had been released on bail within 50-52 days in a case under Section 302 of the Indian Penal Code and were threatening the villagers and the investigation against them was not properly conducted due to protection given to the accused by a local Minister Major Vijay Singh Mankotia. Thus, the memorandum Ext. D.W. 2/Aand D.W. 2/B instead of exculpating the accused of the accusation against them, implicates them in the commission of murder of Manjeet and highlights the grievance about their release on bail and the protection given to the accused by a local Minister. Thus, instead of benefitting the accused persons in any manner the defence taken and evidence produced in defence strengthens the case of the prosecution.
54. The accused Kapoor Chand, Varun Kumar and Sunil Kumar were medically examined by P. W. 1 Dr. Vaneet Aggarwal on the date of occurrence and the copies of their Medico-legal Certificates are respectively Exts. P.W. 1/C.P.W. 1/D and P.W. 1/E. The injuries sustained by them according to the defence, have not been explained and, therefore, the case of the prosecution is rendered unreliable being based on unfair and faulty investigation and must fail. In support of this contention the learned Counsel for the accused relied on Lakshmi Singh v. State of Bihar AIR 1976 SC 2263 : 1976 Cri LJ 1736 and Ramesh v. State of U.P. 1991 Cri LJ 2976 (All).
55. In Lakshmi Singh’s case (1976 Cri LJ 1736) (supra) the Hon’ble Supreme Court has held as follows:
11…According to the Doctor injury No. 1 was grievous in nature as it resulted in compound fracture of the fibula bone. The other two injuries were also serious injuries which had been inflicted by a sharp-cutting weapon. Having regard to the circumstances of the cane there can be no doubt that Dasrath Singh must have received these injuries in the course of the assault, because it hes not been suggested or contended that the injuries could be self-inflicted nor it is believable. In these circumstances, therefore, it was the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused Dasrath Singh in the course of the occurrence. Not only the prosecution has given no explanation, but some of the witnesses have made a clear statement that they did not see any injuries on the person of the accused. Indeed if the eye-witnesses could have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most important circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. This matter was argued before the High Court and we are constrained to observe that the learned Judges without appreciating the ratio of this Court in Mohar Rai v. State of Bihar (1968) 3 SCR 525 : AIR 1968 SC 1281 : 1968 Cri LJ 1479 tried to brush it aside on most untenable grounds. The question whether the Investigating Officer was informed about the injuries is wholly irrelevant to the issue, particularly when the very Doctor who examined one of the deceased and the prosecution witnesses is the person who examined the appellant Dasrath Singh also. In the case referred to above, this Court clearly observed as follows:
The trial Court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14. We get it from the evidence of P. W. 15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised. Under these circumstances the prosecution had a duty to explain those injuries… In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.
This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the present case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v, The State of Punjab, Criminal Appeal No. 266 of 1971 decided on April 25, 1975: (reported in AIR 1975 SC 1674 : 1975 Cri LJ 1479 which was also a murder case, this Court, while following an earlier case, observed as follows:
‘In State of Gujarat v. Bai Fatima (Criminal Appeal No. 67 of 1971 decided on March 19, 1975): (reported in AIR 1975 SC 1478 : 1975 Cri LJ 1079 one of us (Untwalia, J.,) speaking for the Court, observed as follows:
‘In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:
(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.’
It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occur rence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version.
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of P.Ws. 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975 : reported in AIR 1975 SC 1478 : 1975 Cri LJ 1079 there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle Would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that: it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises.
56. In Ramesh’s case (1991 Cri LJ 2976) supra, the Hon’ble Supreme Court held as under:
17. The above circumstances clearly indicate that the prosecution has not come with clean hands and had also failed to establish the origin of the incident as alleged. The origin of the incident appears to be shrouded in mystery in view of the unexplained number of injuries of Ramesh accused-appellant. The conclusion, therefore, is that the evidence on record is not suffi cient to bring home the guilt to the appellants beyond reasonable doubt.
57. The accused in their statements have given the version about the injuries sustained by them. According to accused Sunil Kumar, the injuries were sustained by him due to beatings given by police while he was in custody. The injuries found on his person are simple and consist of a superficial laceration over right figto. He complained of pain over the scalp but no swelling or tenderness was found. These injuries are capable of being caused by a fall and are in no way connected with the occurrence. The version of the accused persons Anuj and Varun is that on October 27, 1997 they were parking the Jeep on the roadside when Manjeet along with five or six other persons came there and started quarrelling with them and caused injuries to them. They came home and narrated the occurrence to accused Kapoor Chand. Thereafter common version of Kapoor Chand, Varun and Anuj accused is that Kapoor Chand then went alone to the spot but he was also beaten up and their Jeep was set on fire. So many persons then collected on the spot and the mob caused injuries to Manjeet and they have been falsely implicated. There is no injury certificate or medico legal certificate of accused Anuj. Even otherwise he claims to have sustained injuries (which are not proved) in a different occurrence at the different time and not when the deceased was injured. The injuries found on the person of accused Varun are (1) a superficial abrasion over base of right thumb (ii) a clean lacerated wound on anti-lateral aspect of left knee (iii) an abrasion over lateral aspect of left heel and (iv) swelling over right cheek superficial bruise was present. All the injuries are simple and except injury No. 2, are capable of being caused by a fall. As per the version of the accused himself, these injuries were sustained in a different occurrence at a different time and not at the time when deceased was injured. The injuries found on the person of Kapoor Chand accused were (1) a 2″ long clean lacerated wound over dorsal of right hand and (ii) swelling over nose with clotting present. On X-ray no fracture was found. Injury No. 1 is opined to be grievous and injury No. 2 simple. Injury No. 2 could be caused by a fall.
58. To explain the grievous injury No. 1 above, the prosecution examined P.W. 2 D. P. Swamy who was Senior Medical Officer in Zonal Hospital at Dharamshala at the relevant time. He has given opinion about injury No. 1 on police request and his opinion is that the injury “was on right angle to outer aspect of hand” so it was more in favour of self-inflicted injury than homicidal.
59. The learned counsel for the accused has assailed the correctness of this opinion on the grounds (1) that the opinion was not obtained from the doctor who medically examined accused Kapoor Chand and the inference which can be drawn is that a false opinion had been obtained from a convenient doctor and (ii) that the obtaining of the opinion was delayed deliberately to manage an opinion favourable to the prosecution.
60. It has been explained by P. W. 17 Kishan Chand, Investigating Officer that he did not take the opinion of the doctor who medically examined Kapoor Chand because he thought better to take opinion of expert. The explanation appears to be satisfactory. Accused Kapoor Chand was medically examined by P. W. 1 Dr. Vaneet Aggarwal, a Medical Officer at the relevant time whereas P. W. 3 whose opinion was obtained was a Senior Medical Officer. It cannot be disputed that the opinion given by a Senior Doctor will be more creditable. In any case the Medical Officer who examined Kapoor Chand has been examined by the prosecution as P. W. 1. He has on oath opined that the possibility of injury No. 1 found on the person of accused Kapoor Chand being ‘self-inflicted’ cannot be ruled out. In view of this opinion given by P. W. 1, the contention raised in this regard has no force.
61. The opinion Ext. P. W. 2/A was given by P. W. 2 on November 20, 1997. Thus, the opinion had not been obtained immediately as these injuries were sustained by Kapoor Chand on October, 27, 1997. When cross-examined on this score, the Investigating Officer (P. W. 17) has explained that X-ray of Kapoor Chand was done on November 14, 1997 as the accused was not in police custody but was in judicial custody. It was on production of the accused before the Court on November 14, 1997 that X-Ray was not conducted. He has further stated that the case about the Injury sustained by Kapoor Chand was being investigated by Dele Ram, Additional Station House Officer and he (P.W. 17) himself was busy in the investigation of the case (i.e. the case against the accused). Since the Medicolegal Certificate regarding injuries sustained by Kapoor Chand was primarily material to the case reported by him vide statement Ext. P. W. 19/A, therefore, the explanation does not seem to be unreasonable, more so, when he was not investigating the case instituted at the instance of Kapoor Chand. The injuries sustained by the accused persons, thus, have reasonably been explained and the nature thereof is not of the magnitude that they may suggest the killing of Manjeet in exercise of self-defence. The injuries found on the person of the accused, therefore, do not strike at the root of the prosecution case and, thus, not fatal to the case. Even otherwise, it is not necessary in every situation to explain the insignificant injuries on the person of accused as has been held by the Apex Court in the concluding lines of the quoted portion of the case Lakshmi Singh v. State of Bihar 1976 Cri LJ 1736 (supra). The Hon’ble Supreme Court in case Kasam Abdulla Hafiz v. State of Maharashtra AIR 1998 SC 1451 : 1998 Cri LJ 1422 reiterated this proposition by holding as under:
9… The principle that non-explanation of injury on the person of the accused would be fatal to the prosecution case would apply only when the injuries could be of such nature which the prosecution witnesses cannot but notice the same. But the injury on the person of the accused even on the forehead which was found by the doctor is such that it would be difficult to hold that the prosecution witnesses must be held to have noticed the same and must offer an explanation. Such minor injuries can be caused for variety of reasons and the prosecution case must not suffer for non-explanation of such minor injuries….
62. In the case in hand the injuries on the person of the accused are not only of insignificant nature and most of them capable of being caused by fall but have been explained due to causes other than having been caused by Manjeet at the time of his sustaining the fatal injuries.
63. Be it stated that about the alleged beating by the deceased, an FIR Ext. P. W. 15/A was lodged by Kapoor Chand. As per contents of the said First Information Report, there were accused Varun and Sunil who were beaten up by Manjeet and reported the beating to accused Kapoor Chand whereas in their statements under Section 313 of the Criminal Procedure Code, case of the accused persons is that Anuj and Varun were beaten by the deceased and they informed Kapoor Chand about the beating. Thus, there is contradiction in the First Information Report and the statements under Section 313 of the Criminal Procedure Code.
64. The accused have claimed that the deceased had beaten Kapoor Chand and set their Jeep on fire, therefore, he was beaten by a mob. However, this version is altogether missing from the First Information Report lodged by Kapoor Chand. Had the Jeep been burnt, he would have reported it at the time of lodging the First Information Report Ext. P.W. 15/A. An attempt has been made to show that was due to beating of Kapoor Chand and setting afire the jeep of the accused by the deceased and his companions that so many persons gathered on the spot and they beat up the deceased. It is entirely false version and is proved to be so by nothing other than the First Information Report Ext. P. W. 15/B lodged by Champa Devi, wife of accused Kapoor Chand wherein she has specifically and unambiguously mentioned that the Jeep was set on fire by ‘Jat’ extremists on October 29, 1997 at 12 O’clock. Thus, as per the saying of Champa Devi, the Jeep was burnt by “Jat” extremists on the third day of death of Manjeet. It was contended that this First Information Report has been post dated. The contention is without any merit and substance. The First Information Report Ext. P.W. 15/B has not been recorded on the basis of oral statement of Champa Devi but was recorded on the basis of a written application addressed by her to the Station House Officer. The figures and facts in the application of Champa Devi cannot be said to have been manipulated by the police. There is other evidence on record that the Jeep was set on fire by the mob agitated by the killing of Manjeet after his death. Thus, the defence put up by the accused as aforesaid is false.
65. The case FIR Ext. P.W. 15/A lodged by Kapoor Chand and contents whereof are contradicted by the statements of three of the accused including Kapoor Chand under Section 313 of the Criminal Procedure Code has been sent for cancellation vide report Ext. P. W. 19/B. It is immaterial for the purpose of this case as to what happened to the case registered on the written application of Champa Devi, because it pertains to an occurrence which took place on the third day of the death of Manjeet.
66. In view of the entire evidence and contentions as discussed and examined hereinabove, the prosecution evidence regarding dying declaration alone is not worth being relied upon because of the failure of the witnesses to state the same in the words of the deceased. However, even if such dying declaration is ignored, there is cogent and reliable evidence in the form of statements of eye-witnesses and other corroborative evidence on record, as discussed hereinabove which prove the charge against the accused beyond any reasonable doubt. In conclusion it can, therefore, be held safely that the accused have been rightly held guilty of the commission of offence they are charged with and have, therefore, been rightly convicted and sentenced by the learned Sessions Judge. The convictions of and sentence awarded to the accused persons, therefore, deserve to be upheld.
67. As a result, both these appeals merit dismissal and are accordingly dismissed.