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DELHI HIGH COURT
(D.B.)
R. N. Aggarwal and
Malik Sharief-ud-Din, J.
Poonit – Petitioner
The State–Respondent
Criminal Appeal No. 289 of 1981
Decided on 21-2-1984
(ii) Indian Penal Code 1860-Section 302-Prosecution witness not an eye-witness nor his name find place in the F.I.R., examined first time after 9 days of incident-Whether his evidence to the effect that he took the deceased in a tempo to the hospital and left the hospital immediately after dumping the deceased there assumes importance? (Yes) I Because this shows natural human behaviour).(Paras 5 and 6)
(iii) Indian Penal Code 1860-Section 302-Evidence Act, 1872-Sections 3,154, l56-Fundamental rule for appreciation of evidence of eye-witness-What are.
Held "the fundamental rule for appreciation of evidence of eye-witness account is that it must stand the scrutiny of recognised legal standards. The evidence of eye-witnesses is to be judged according to the universally recognised test of basic human probabilities. This court can do successfully if all the surrounding circumstances of the case and the conduct of the witnesses is kept in mind while appreciating their testimony. The prosecution indeed is not bound to examine all the eye witnesses but if the evidence of the eye witnesses suffers from various infirmities and cannot be relied upon without proper corroboration the court will be within its right to ask as to why the witnesses who were otherwise avail-able have been kept back. In such an event prosecution is bound to give reasonable explanation as to why it is so, or else the court would be justified in drawing an adverse inference."(Para 7)
Held also "if the eye witness account that they had seen the appellant inflicting injuries were true, their normal conduct was bound to create a commotion in the entire neighbour hood. It is very strange that even the maternal grand father of the deceased is not attracted to the scene. In the absence of any explanation as to what prevented P.Ws. 8 and 9 to disclose the identify of the culprit to the two neighbours who had reached the scene and to P.W. 3 the eye witness account becomes highly suspicious (Para 9)
(iv) Indian Penal Code 1860-Section 302-Adverse inference- Whether the court is justified in drawing it against prosecution when some independent eye witnesses were suppressed and no inquiry was made from them? (Yes) (Para 11)
(v) Indian Penal Code 1860-Section 302-Evidence Act, 1872-Sections 3,154, 156-Suspicion - Whether can take the place of proof? (No)
Held "there may be an element of truth in the fact that deceased had gone with the appellant on the night of occurrence and the fact that he did not return and was found stabbed may also be true but that does not provide evidence to connect the accused with the commission of crime. It can at the most raise a suspicion against him. But suspicion, howsoever, strong cannot take the place of proof." (Para 12)
JUDGMENT
Malik Sharief- Ud-Din J . – The appellant puneet was convicted by the Addl. Sessions Judge, Delhi, under Section 302 Indian Penal Code and was sentenced to undergo imprisonment for life by his order dated 30th November 1981. Aggrieved by this order the convict has come in appeal.
2. Brief facts are that P.W. 8 Smt. Chander Kanta mother of the deceased Rakesh was residing in the house of her parents No. 7/207, Gita Colony, Gandhi Nagar, Delhi, along with the deceased and Sudhir Kumar P.W. 9 sons and one daughter. The appellant Puneet was also residing in the same colony in house No. 7/248 at the relevant time. It is said that the appellant was no friendly and visiting terms with the deceased. On 11th February 1980 at about 9.15 p.m. while Rakesh was lying on a cot wearing a Pajama Ex. P.1, under wear Ex. P-3, baniyan Ex. P-2 and sweater Ex. P-4 and while his brother Sudhir P.W. 9 was reading a book, the appellant Puneet is said to have knocked at their door. Rakesh opens the door and the accused is said to have told him to accompany him in connection with some urgent work. Deceased Rakesh is said to have accompanied him in those very clothes without putting on shoes. This created a suspicion in the mind of his mother Chander Kanta who is supposed to have followed the appellant and the deceased in the company of her son, Sudhir P.W. 9. It is said that immediately the appellant and the deceased reached near the crossing of blocks 6 and 7 at a distance of about 30 to 40 yards from the house of the deceased, Puneet started inflicting knife blows on Rakesh and stabbed him in the arm, chest, abdomen and back. Rakesh raised an alarm and fell down. Sudhir P.W. 9 attempted to rescue Rakesh but the accused is said to have tried to attack him and thereafter the accused escaped from the scene along with the knife. It is further said that immediately thereafter, a tempo driven by Gulshan Kumar P.W. 3 arrived on the scene and with the help of this tempo driver and two passersby P. Ws. Chander Kanta and Sudhir Kumar took the deceased to. J. P. N. Hospital where he was admitted at 9.35 p.m. on the same day and was examined by Dr. Ashok Kumar Bagga who prepared M.L.C. P.W. 14/ A. Information regarding admission of the injured in the hospital came to be transmitted to police station, Gandhi Nagar, by Duty Constable Balbir Singh and it was received by A.S.I. Bhagwat Singh P.W. 5 who made a report thereof at serial No. 22-A of the daily. diary Ex. P.W. 5/ A at about 9.55 p.m.. On receiving a copy of this daily diary S.I. Rama investigating officer goes to J. P. N. Hospital along with constable Ram Babu and constable Ram Darshan where he obtains M.L.C. Ext. PW 14/A of deceased Rakesh. Since the deceased was declared not fit for making a statement, the Sub-inspector could not record his statement. He is said to have met Chander Kanta in the hospital. He records her statement Ex. P.W. 8/A and after endorsing it under his endorsement Ex. P.W. 5/C he sent it to the police station for recording a F.I.R. This rukka was received by ASI Bhagwat Singh P.W. 5 at about 11.30 p.m. through constable Ram Darshan and a formal F.I.R. Ext. P.W. 5/E was recorded. The case was then sent to Ramanand S.I. for investigation. The investigating officer also is stated to have recorded the statement of P.W. 9 Sudhir Kumar brother of the deceased in the hospital and thereafter he came to the scene of occurrence along with Sudhir Kumar and found blood spread on a foothath in front of house No. 6/64, Gita Colony Delhi. He prepared site plan Ex. P.W. 15/A. Meanwhile the crime together with SHO arrived on the spot and photographs are taken by Satbir Singh P.W. 1. The photographs Ex. P.W. J/A and Ex. P.W. l B indicate the place where the blood was spread on the foot path. The investigating officer takes the sample blood from the scene in possession vide seizure memo Ex. P.W. 9/A in the presence of P.W. 9 Sudhir Kumar and constable Ram Babu P.W. 10 and secures the same. T
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