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IN THE HIGH COURT OF DELHI AT NEW DELHI
G.S. SISTANI, CHANDER SHEKHAR, JJ.
Sahibe Alam @ Nakta & Anr. - Appellants
Versus
State - Respondent
Crl. A. 651 & 412 of 2015
Decided On : 03-07-2017
CRIMINAL - MURDER - EVIDENCE ACT, 1872 - SECTION 118 - INTERESTED WITNESS - TESTIMONY OF INTERESTED WITNESS - RELIABILITY - FACTORS TO BE CONSIDERED - SECTION 10 - RELEVANCY OF FACTS - FACTS SHOWING MOTIVE - ADMISSIBILITY - SECTION 155 - PRESUMPTION AS TO DOCUMENT DULY ATTESTED - APPLICABILITY - SECTION 161 - STATEMENT MADE TO POLICE OFFICER - ADMISSIBILITY - SECTION 313 - STATEMENT OF ACCUSED - RECORDING - MANDATORY - SECTION 145 - HEARSAY EVIDENCE - ADMISSIBILITY - EXCEPTIONS - SECTION 30 - CONFESSION TO POLICE OFFICER - ADMISSIBILITY - SECTION 27 - CONFESSION CAUSED BY THREAT OR PROMISE - INADMISSIBILITY - SECTION 162 - CONFESSION MADE TO MAGISTRATE - RECORDING - PROCEDURE - SECTION 288 - PROSECUTION EVIDENCE - APPRECIATION - CORROBORATION - NECESSITY.
Fact of the Case:
The accused was charged with the murder of his wife. The prosecution's case was that the accused had killed his wife in a fit of rage after she had refused to give him money to buy liquor. The prosecution relied on the testimony of the accused's son, who had witnessed the murder, and on the testimony of the police officer who had arrested the accused. The accused denied the charges and claimed that he had been falsely implicated by the police.
Finding of the Court:
The trial court convicted the accused of murder and sentenced him to life imprisonment. The accused appealed to the High Court.
Issues: 1. Whether the testimony of the accused's son was reliable, given that he was an interested witness. 2. Whether the police officer's testimony was admissible, given that he had not been present at the scene of the crime. 3. Whether the accused's statement to the police was admissible, given that it had been made without the presence of a lawyer. 4. Whether the trial court had erred in admitting hearsay evidence.
Ratio Decidendi: 1. The court held that the testimony of the accused's son was reliable, even though he was an interested witness. The court noted that the son had no motive to lie and that his testimony was consistent with the other evidence in the case. 2. The court held that the police officer's testimony was admissible, even though he had not been present at the scene of the crime. The court noted that the police officer had testified about the accused's confession, which was admissible under Section 30 of the Evidence Act. 3. The court held that the accused's statement to the police was inadmissible, as it had been made without the presence of a lawyer. The court noted that Section 161 of the Evidence Act requires that a statement made to a police officer be made in the presence of a lawyer. 4. The court held that the trial court had erred in admitting hearsay evidence. The court noted that the hearsay evidence was not admissible under any of the exceptions to the hearsay rule.
Final Decision: The court allowed the appeal and set aside the conviction and sentence. The court ordered a retrial.
G.S. Sistani, J.
1. Present appeals have been instituted under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) against the judgment of the Trial Court dated 02.03.2015 in Sessions Case No.30(1)/10, FIR No.252/10, Police Station New Usmanpur and the order on sentence dated 03.03.2015, by which the appellants have been sentenced to imprisonment under Sections 302/34 IPC for life and a fine of Rs.5,000/- each and in default of payment of fine, the appellants have been sentenced to simple imprisonment for one month each.
2. Both Mr. Arvind Kumar, learned counsel appearing for the appellant Sahibe Alam @ Nakta in Crl.A.651/2015 and Mr. Kaushal Yadav, learned counsel appearing for the appellant Faisal @ Sibhu in Crl.A.412/2015 have raised common arguments.
3. Before the rival submissions of the learned counsels of the appellants can be considered, we deem it appropriate to notice the case of the prosecution.
4. The case of the prosecution, as noticed by the learned Trial Court, is as under:
“1. On 07.08.2010 at 10.45 p.m., PW-22 HC Narayan Singh, Duty Officer, PS New Usmanpur received a wireless message from police control room that three boys fled towards Shastri Park after shooting a person. He recorded the said information into rojnamcha register vide DD No. 37A Ex.PW22/A and sent a copy thereof to PW-11 ASI Satyapal Singh through PW-14 Ct. Subodh for appropriate action.
2. Thereafter, PW-14 Ct. Subodh handed over a copy of DD No. 37A to ASI Satyapal Singh at Zero Pusta.
3. On receipt of DD No. 37A, PW-11 ASI Satyapal Singh alongwith PW-27 Ct. Dharmender reached at pusta road, opposite A-Block, Village Garhi Mandu, Delhi where he found blood on the patri (pavement). On enquiry, he came to know that the injured Bobby was taken to hospital by his son through CATS Ambulance. He did not find any eye witness on the spot. He directed patrolling staff to guard the scene of occurrence. He alongwith PW-27 Ct. Dharmender reached at GTB Hospital. He obtained MLC No. B-3675/10 of Bobby s/o Sh. Prakash r/o. 120, Gali No. 6, Garhi Mandu, Delhi Ex.PW18/A.
4. According to MLC Ex.PW18/A, Bobby was brought to the Casualty of GTB Hospital by CATS, Alfa-16 on 07.08.2010 at 11.15 p.m. with alleged history of gun-shot around ½ hour back. PW-18 Dr. Banarsi, CMO, GTB Hospital, Delhi examined Bobby and declared him brought dead.
5. PW-11 ASI Satyapal Singh inspected dead body of the deceased. He observed gun shot injuries under the left eye and left side of the chest of the deceased. He observed an injury on the right side of the chest which appeared him to be the exit point of the bullet. He observed injury on the right hand of the deceased. He met PW-6 Sumit S/o Sh. Ajit Singh @ Bobby. He made enquiry from him. He came to know that PW-6 Sumit was an eye witness.”
5. The learned counsels for the appellants submit that the learned Trial Court has erred in passing the impugned judgment as the Trial Court has wrongly appreciated the facts and the judgment and the order on sentence is contrary to law. Learned counsels contend that the appellants have been falsely implicated in the case. It has been strongly urged before this Court that PW-6 Sumit is not an eye witness. His presence is doubtful at the spot of the incident for the reason that two MLCs have been prepared within a span of five minutes. As per the first MLC, the name of the deceased has been shown as ‘unknown’ and subsequently the word ‘Bobby’ has been added. Both the MLCs contain incorrect address of the deceased and had PW-6 been present, he would have informed the correct address. It is also contended that in case PW-6 was present at the spot of the incident, he would have reacted in a different manner. PW-6 did not inform the PCR, he did not inform the relations, he did not make any attempt to save his father, thus his presence has not been established and, on this ground alone, the appeals are liable to be allowed and the impugned judgment and t
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