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High Court of Delhi
PRADEEP NANDRAJOG & MUKTA GUPTA, JJ.
Bijender
Versus
State
CRL.A. No. 857 of 2011
Decided On : 19-09-2014
CRIMINAL LAW - MURDER - SECTION 302 IPC - EVIDENCE ACT, SECTION 114 - WITNESSES TURNING HOSTILE - RELIANCE ON EXAMINATION-IN-CHIEF OF HOSTILE WITNESS - CONDITIONS - RECOVERY OF WEAPON - DISCREPANCIES IN TESTIMONIES - NON-EXAMINATION OF MATERIAL WITNESSES - ADVERSE INFERENCE - SECTION 114(G) OF EVIDENCE ACT.
Fact of the Case:
The appellant was convicted for murdering the deceased by firing a shot at him. The prosecution examined 21 witnesses, including the deceased's daughter-in-law, Parvita, who was an eyewitness to the incident. However, Parvita turned hostile during cross-examination and denied her earlier statement implicating the appellant. Other eyewitnesses, including the deceased's son and daughter, also turned hostile and did not support the prosecution's case. The appellant denied the charges and claimed false implication.
Finding of the Court:
The court held that the appellant was guilty of murder and upheld the conviction. The court relied on the examination-in-chief of Parvita, in which she had implicated the appellant, and found that her somersault during cross-examination was due to fear and intimidation. The court also found that the testimonies of other hostile witnesses were not reliable and that the appellant's alibi was not substantiated. The court further held that the recovery of the weapon used in the murder from the appellant's house was valid and that the discrepancies in the testimonies of the police officers regarding the recovery were not fatal to the prosecution's case. The court also held that the non-examination of certain material witnesses, including the deceased's wife, did not warrant an adverse inference against the prosecution, as there was no evidence to suggest that these witnesses would have given a contrary version of events.
Issues: 1. Whether the court can rely on the examination-in-chief of a witness who has turned hostile during cross-examination? 2. Whether the discrepancies in the testimonies of the police officers regarding the recovery of the weapon are fatal to the prosecution's case? 3. Whether the non-examination of certain material witnesses warrants an adverse inference against the prosecution?
Ratio Decidendi: 1. The court can rely on the examination-in-chief of a witness who has turned hostile during cross-examination if: a. There is evidence to suggest that the witness was pressurized or intimidated to change his/her testimony. b. There is 'intrinsic' material in the examination-in-chief to establish the truthfulness of the statement given by the witness. c. The explanation given by the witness to wriggle out of the statement given in the examination-in-chief is flimsy. 2. Discrepancies in the testimonies of the police officers regarding the recovery of the weapon are not fatal to the prosecution's case if: a. The discrepancies are minor and do not go to the root of the matter. b. There is other evidence to corroborate the recovery of the weapon. 3. The non-examination of certain material witnesses does not warrant an adverse inference against the prosecution if: a. There is no evidence to suggest that these witnesses would have given a contrary version of events. b. The prosecution has adduced overwhelming evidence to establish the guilt of the accused.
Final Decision: The appeal was dismissed, and the conviction of the appellant for murder was upheld.
Pradeep Nandrajog, J.
1. Process of criminal law was set into motion when at around 07.20 P.M. on December 15, 2009, HC Durvesh Kumar PW-1, recorded DD No.17A, Ex.PW-1/A, noting therein that the wireless operator has informed that a gun-shot has been fired at a person by his brother at house bearing Municipal No.B-58-59, Gali No.6, Amar Vihar, Karawal Nagar, Delhi.
2. Being handed over a copy of DD No.17A, accompanied by Ct.Rajesh PW-12, ASI Habib Ahmed PW-21, proceeded to Gali No.6, Amar Vihar, Karawal Nagar where they learnt that a gun-shot has been fired at a person named Ajeet (hereinafter referred to as the ‘Deceased’) at his house, address whereof was B-56, Gali No.6, Amar Vihar, Karawal Nagar. After sometime, Insp. C.M. Meena PW-19 and HC Ramesh Chand PW-13, also reached the spot.
3. In the meantime, a PCR van reached the spot and removed the deceased to GTB Hospital where the deceased was brought dead as recorded in the MLC Ex.PW-19/A-1.
4. At the spot, Parvita PW-2, daughter-in-law of the deceased, was present and claimed to have knowledge about the incident of firing of gun-shot at the deceased. Insp. C.M. Meena PW-19, recorded the statement Ex.PW-2/A of Parvita and made an endorsement Ex.PW-19/A thereunder at 23:55 hours on December 15, 2009. He handed over the same to HC Ramesh Chand PW-13 for FIR to be registered. HC Ramesh Chand took the rukka to PS Karawal Nagar where SI Mohammad Shamim PW-6, recorded the FIR No.134/2009, Ex.PW-6/A.
5. The statement Ex.PW-2/A of Parvita, in Hindi, loosely translated reads as under :-
“I am a housewife and reside at the house bearing Municipal No. B-56, Gali No.6, Amar Vihar, Karawal Nagar, Delhi with my family. My father-in-law Ajeet has two brothers namely, Ram Niwas @ Bhola and Bijender (appellant). My one unclein- law Ram Niwas @ Bhola resides at village Gadi Katiya PS Loni District Ghaziabad U.P. and second uncle-in-law Bijender resides at Mukand Vihar Karawal Nagar. There were strained relations between my father-in-law Ajeet and uncle father-inlaw Bijender over the property situated in village. Bijender was selling the property in village and was not giving share to my father-in-law and other uncle-in-law Ram Niwas @ Bhola as a reason whereof there was enmity between my father-in-law and Bijender. Today, I was present at my house with my family and my father-in-law was having dinner with our tenant Amar Nath s/o Sh. Rattan Lal in the adjoining room when at about 07.00 P.M. my uncle-in-law Bijender came to our house and put a country made pistol (katta) on the temple (kanpati) of my father-in-law who was having dinner and fired a shot upon which my father-in-law fell on the floor and blood started oozing out from his body. We tried to catch hold of Bijender but he pushed us and fled from there. This incident was also witnessed by my younger sister-in-law Rekha aged 14 years. Due to hoopla a crowd gathered at their house and our tenant made a call to the police. A police vehicle took my father-in-law to GTB Hospital. We have now learnt that my father-in-law has died. My uncle-in-law has fired a shot at my father-in-law over property dispute. A legal action be taken against him. I have read and heard my statement and the same is correct.”
6. Few hours thereafter, Insp. C.M. Meena recorded statement Mark P- 2/A of Parvita under Section 161 Cr.P.C. wherein she stated that on December 15, 2009 the appellant had come to their house in his Indica car bearing No.DL 5CB 9970 which was parked by him in the street outside their house. While he was trying to escape from their house the keys of car of appellant had fallen in their house.
7. Parvita PW-2, handed over a key ring containing two keys to Insp. C.M. Meena PW-19, who seized the same vide memo Ex.PW-2/B. An Indica car bearing No. DL 5CB 9970 (stated to have been belonging to the appellant by the family members of the deceased) was parked outside the house of the deceased and the same was seized by Insp. C.M. Meena vide
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