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PETITIONER: BABU RAM

       Vs.

RESPONDENT: STATE (DELHI ADMINISTRATION) AND OTHERS

DATE OF JUDGMENT:       08/01/1998

BENCH: G.T. NANAVATI, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI,J.      These two  appeals arise  out of the common judgment of the High  Court of Delhi in  Criminal Appeal Nos. 116/84 and 131/84. Criminal  Appeal No.  116/84 was  filed by convicted accused La’s  Ram and Om Prakash. Criminal Appeal No. 131/84 was filed  by accused  Thakur Singh.  The three accused were tried and  convicted for the offence of murder, by the Court of Additional Sessions Judge in Sessions Case No. 52/82.      The prosecution  case was  that a few days prior to the date of  the incident,  wherein Padam Singh lost his life, a quarrel had taken place between Padam Singh and the accused. But the  father and  brother of  Padam Singh  intervened and pacified them.  On 19.2.1982  at about  4.15 p.m. when Padam Singh was  passing through  Gali  No.4,  the  three  accused caught him  and told  him that  he was  saved earlier by his father and brother but they would not leave him on that day. Om Prakash  held Padam  Singh from  behind and the other two accused,  namely,   Thakur  Singh  and  Lala  Ram  inflicted injuries on  the front and back of Padam Singh with daggers. Babu Ram,  father of  Padam Singh,  who was  following Padam Sing, saw  this incident and raised cries for saving his son and catching  the accused.  Hearing his  cries many  people, including Prabhu  Dayal, Pyare Lal, Sua Lal and others, came there. Babu  Ram himself  was able  to catch hold of accused Lala Ram.  Prabhu Dayal ran after Om Prakash and caught him. Thakur Singh  was caught while running away by Pyare Lal and Sua Lal.  Meanwhile the police party headed by sub-inspector Dharam Pal,  which was on patrolling duty, reached that spot and came  to know  about the incident. The three accused who were caught  by that time were handed over to the police. On these allegations  all the  three  accused  were  tried  for committing the  offence punishable  under Section  302  read with Section 34 IPC and under Section 27 of the Arms Act.      The prosecution  examined Babu  Ram (PW-3),  Pyare  Lal (PW-4), Prabhu  Dayal (PW-6)  and  Sua  Lal  (PW-7)  as  eye witnesses. It  also lead  other supporting and corroborative evidence. The  trial court  rejected the  contention of  the accused that  there was  delay in recording the FIR and that the delay was because till the next day morning names of the

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assailants were  not known.  It believed the evidence of the eye witnesses and held all the three accuse guilty.      The High  Court, mainly  relying upon  the substance of information noted  in Ex.  DW 2/A  based upon  D.D entry No. 16A, recorded  in Rojnamcha,  maintained at  the Patel Nagar Police Station,  which did not contain names of the accused, names of  the eye witnesses, the place of occurrence and the weapons used  and also the circumstance that copy of the FIR had reached the Ilaka Magistrate at 10.00 a.m. on 20.2.1982, held that  in all  probability the FIR was not recorded till next  day  morning.  The  High  Court  also  held  that  the circumstance, that  the dead  body was  not removed from the spit till  1.10 a.m.  and that  the  formal  arrest  of  the accused was  shown at  about 1.30 a.m., also created a doubt regarding the  genuineness of  the version given in the FIR. The High Court rejected the evidence of eye witnesses on the ground that  injury No.8,  could not have been caused if the deceased was held by accused Om Prakash in the manner stated by  them.  Another  reason  given  by  the  High  Court  for discarding their  evidence is  that they  were appearing  as witnesses and  supporting each  other in  numerous  criminal cases. Taking  this  view  the  High  Court  set  aside  the conviction and acquitted the accused.      Aggrieved by  the acquittal  of the  accused Babu  Ram, father of  the deceased and a prosecution witness, has filed these  appeals   after  obtaining  special  leave.  What  is contended by  the learned  counsel for the appellant is that the reasons  given by  the High Court for holding that there was delay  in recording  the FIR are not at all sustainable. He also  submitted that  the two  main reasons  given by the High Court  for discarding the evidence of the eye witnesses are  also  not  sustainable  as  the  evidence  of  the  eye witnesses  is  really  not  inconsistent  with  the  medical evidence and  is also  not  correct  to  say  that  the  eye witnesses had  appeared as  witnesses in  numerous  criminal cases and  had supported each other. The learned counsel for the  respondents-accused   tried  to  support  the  findings recorded by  the High Court on the same grounds as are given by the High Court.      It is  now not  in dispute that the incident took place at about  4.15 p.m.  in Gali  No. 4  of  Than  Singh  Nagar, falling within  Anand Parbat  Police  Post,  situated  at  a distance of  about 2.5 Kms. from Patel Nagar Police Station. The FIR  (Ex. PW-8/B)  shows that  it was  recorded at about 5.35 p.m. It refers to D.D. entry No. 16A (Ex. DW-2A), which has been  heavily relied upon by the High Court for doubting the correctness  of the  entries made  in the  FIR regarding time and  names of the accused. The said entry was proved by Head Constable Om Prakash (DW-2), and reads as under :-      "Copy  of  report  No.  16/A  dated      19.2.82 of the roznamcha maintained      at Police Station Patel Nagar.      D.O.     Intimation     for     the      registration of  case (FIR) No. 110      for an    offence  punishable  us/s      302/34 IPC .      Time  5.35 P.M.      At this  time a  writing in  hindi,      prepared and  sent by  S.I.  Dharam      Pal I/c P.P. Anand Parbat, Delhi on      the basis of statement made by Shri      Babu Ram  s/o Shri  Prem Singh  r/o      H.No. 187A,  Gali No. 7, Than Singh      Nagar, Anand  Parbat New  Delhi has      been received at the police station

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    for registering  a case  punishable      u/s 302/34  IPC through  Const. Ram      Pal No.  569/C.  On  the  basis  of      which a  case (FIR)  No.  110  u/s.      302/34 IPC was prepared.      Scribed by ASI/DO"      The High  Court, after  referring to this entry and the evidence of Jai Pal Singh (PW-8), held that what was sent by S.I.Dharam Pal (PW-15) was only an intimation to register an offence and  as names  of accused,  witnesses were not known till than  the formal FIR was no prepared at that time. What the High  Court had  overlooked is the object of making that entry. As  an intimation  was received  form an  officer  in charge of  a police  post, that  fact was noted in the daily diary. The  said entry  refers  to  the  writing  in  Hindi, prepared by  Sub-inspector Dharam  Pal on  the basis  of the statement made  by Babu  Ram. That  report was also produced and marked Ex. PW-8/A. It appear below the statement of Babu Ram, which  is marked as Ex. PW-3/A. The report contains the names  of  the  accused  and  the  witnesses  and  also  the substance of  the information received by him. The statement of Babu  Ram also  contained all  those details. This report was dispatched  at 5.00 p.m. as stated in the report itself. The High  Court really  misunderstood the D.D. entry No. 16A and overlooked the other evidence in that behalf. Therefore, its finding  based upon  such improper  appreciation  stands vitiated.      The High  Court also  failed to take into consideration the  extracts   produced  from   the  register  of  malkhana maintained at  Patel Nagar  Police  Station  (Ex.  PW-14/A), which also  show that  by 1.30 a.m. the blood stained cloths of accused  Om Prakash,  Lala  Ram  and  Thakur  Singh  were already deposited  in the  malkhana. It  is also in evidence that the  letter of  request written by sub-inspector Dharam Pal to the C.M.O. Police Hospital for conducting post-mortem on the dead body of Padam Singh was received in the hospital at night.  All these  pieces of  evidence clearly  establish that all  the details regarding the incident has reached the police station  by about  5.30 p.m.  We Therefore, hold that there was  no delay  in recording  the FIR  and that  it was truly recorded.      Even if  it is  believed that the special report, which was sent to the Metropolitan Magistrate, was received by him on 20.2.1982 at 10.00 a.m. that circumstance in the facts of this case cannot be regarded as sufficient to create a doubt regarding  genuineness   of  the   time  and  other  details contained in the First Information Report. As stated earlier many other  documents, which had already come into existence b y  1.30 a.m.  and genuineness of which could not have been doubted, contain names of the accused and description of the weapons with which they had attacked the deceased.      On close  scrutiny of  the  evidence  of  the  two  eye witnesses,  we  find  that  High  Court  was  not  right  in discarding their  evidence on the ground that their evidence is not consistent with the medical evidence and that the eye witnesses had  appeared as  witnesses in  numerous  criminal cases. The  evidence on  record does  not show that they had appeared as  witnesses in  number of criminal cases together or separately.  What the  defence has been able to establish is that  only in  one case  under Section  324 IPC Babu Ram, Pyare La  and Sua  Lal were  the witnesses.  Pyare  Lal  and Prabhu Dayal  are co-accused  in one criminal case. But that was an election case and the offence was regarding fixing of posters. That  case was filed against as many as 73 persons. Prabhu Dayal  was a  witness in one case filed by the mother

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of Babu  Ram. From this evidence it was not proper to record a finding  that es Babu Ram, Pyare Lal and Prabhu Dayal were often appearing  as witnesses  in criminal  cases  and  were supporting each  other.  They  were  residing  in  the  same locality and  Babu Ram  being a  social worker  it was quite natural that  he knew  some of  the  eye-witnesses  and  was either a  co-accused or  a co-witness  in some  court cases. Expect the  cases referred  to above Babu Ram, Pyare Lal and Prabhu Dayal  did not  appear as  witnesses together  in any other case.  It was,  therefore, not  proper to reject their evidence  on   the  ground   that  they  were  not  reliable witnesses.      We are  also of  the view that their evidence ought not to have  been discarded  on the  ground that  the  same  was inconsistence with  the medical evidence. Injury No 8 was on the back  of the  deceased. No  doubt the eye-witnesses have stated that  accuse Om  Prakash had  caught Padam Singh from behind by putting his hands around the waist of Padam Singh. The hands  of Padam  Singh were  free as they were above the grip of Om Prakash. That would indicate that the movement on the part  of Padam  Singh was  possible and the whole of his back was  not covered  by the body of Om Prakash. Therefore, merely because  the prosecution  witnesses had  stated  that deceased Padam  Singh was  held by Om Prakash from behind it cannot be  said that  no blow  with a  knife could have been given by the other accused on the back of the deceased.      The High Court also committed a grave error in doubting the prosecution  evidence on  the ground that no independent witnesses were  examined. Though  the incident  had happened during the  day time there is nothing on record to show that other persons  had witnessed  the  same.  Nothing  has  been brought out  in the evidence of the Investigation Officer on the basis of which it can be said that the investigation had disclosed that there were other eye witnesses. In absence of any material  it  was  not  at  all  proper  to  reject  the prosecution  evidence   on  the   ground  that   independent witnesses  from  the  locality  were  not  examined  as  eye witnesses.      As we  find  that  the  High  Court  has  rejected  the evidence of the three eye-witnesses on grounds which are not sustainable the order of acquittal passed by it will have to be set  aside. That  is not  a case where on appreciation of evidence a  different view  has been  taken. As  pointed out above  the  findings  of  the  High  Court  are  based  upon incorrect reading  of the evidence and grounds which are not tenable. We,  therefore, allow  these appeals, set aside the judgment and order of acquittal passed by the High Court and restore the  judgment of the trial court whereby the accused respondents were  convicted  under  Section  302  read  with Section 34  IPC and  sentenced to  suffer  imprisonment  for life. As  the accused  have been released on bail during the pendency of  these appeals, they are ordered to surrender to custody immediately  so as to serve out he remaining part of their sentence.