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2005 DIGILAW 50 (JK)

Rachpal Singh Alias Nika v. State

2005-03-16

PERMOD KOHLI, S.K.GUPTA

body2005
Per S.K. Gupta-J. 1. This appeal is directed against the judgment of learned Sessions Judge, Jammu dated 16.4.1994, whereby the appellant/ accused, Rachpal Singh, alias Nika has been convicted for an offence under section 302 RPC for causing murder of one Sikhdev Singh, resident of Bhour Camp, Jammu and sentenced to undergo imprisonment for life and a fine of Rs. 1,000/- and in default of making the payment of fine to further suffer three months simple imprisonment. 2. The substratum of the case as unfolded in the evidence assembled during trial is that on the evening of Ist November,1989 at about 6.30 P.M, the deceased alongwith PW Gurdev Singh was standing together on the road near Ward No. 2, Bhor Camp, when accused, Rashpal Singh, arrived there and started hurling abuses on the deceased in objecting to the latters standing near his home on the previous night. This led to an altercation between the accused and the deceased. It was in the course of oral altercation, the accused wiped out the Kirch and stabbed the deceased, Sikhdev Singh. The accused gave first blow with the Kirch at the neck, the second in the abdomen and third in the chest of the deceased, as a result of which the deceased fell down and started bleeding. Thereafter, the accused fled away from the spot. The deceased was removed to the Hospital by Inderjeet Singh with the assistance of PW Gurdev Singh and on reaching the Hospital, the deceased was declared dead. 3. The First Information Report about the occurrence was lodged on the same day at 7.30 P.M by PW Inderjeet Singh, an eye witness to the occurrence, on the basis of which a case under section 302 RPC stood registered against the appellant-accused and investigation ensued. On the conclusion of the investigation, the accused was finally sent up to face his trial for alleged offence committed under section 302 RPC before the learned Sessions Judge, Jammu and the trial Court after scanning the evidence and hearing the parties, held him guilty of the charge under section 302 RPC and sentenced him for imprisonment for life and a fine of Rs. 1,000/- accordingly, vide his judgment impugned in this appeal. 4. We have heard the learned counsel appearing for the respective parties and also perused the record meticulously. Mrs. 1,000/- accordingly, vide his judgment impugned in this appeal. 4. We have heard the learned counsel appearing for the respective parties and also perused the record meticulously. Mrs. S.Kour, learned counsel appearing for the appellant, at the threshold, submitted that the trial Court has not appreciated the evidence in its proper perspective as the eye witness, Inderjeet Singh, is the brother of the deceased; his evidence is tainted, smacks of partisanship and cannot be accepted without corroboration of an independent evidence. Her further submission is that PW Gurdev Singh, another witness, who is stated to be an eye witness, was not examined by the prosecution and does not support its case and further substantial evidence relied upon by the prosecution does not warrant conviction of the accused. According to the appellants counsel, there is, in fact, no reliable evidence to connect the accused with the commission of the offence and held him guilty of the charge under section 302 RPC. Whereas, Mr. B.S. Slathia, learned AAG appearing for the respondent-State, on the other hand, argued that the accusations against the accused/appellant have been proved by occular testimony of the eye witnesses and further supported by the medical evidence and other incriminating and circumstantial evidence relied upon by the prosecution which is consistent only with the hypothesis that the accused alone had stabbed the deceased to death on the fateful evening. 5. It may be pointed out at the first flush that the case of the prosecution rests upon both direct and circumstantial evidence. The direct evidence consists of PW Inderjeet Singh and PW Gurdev Singh who happened to be the eye witnesses of the occurrence. Whereas discovery of weapon of offence on the disclosure statement made by the accused on arrest immediately after the occurrence, fleeing away from the place of occurrence, besides medical evidence are incriminating circumstances on which the prosecution depended upon to prove its case against the accused. So far as the evidence of eye witnesses is concerned, PW Inderjeet Singh deposed that the deceased and the accused were seen together standing at the place of occurrence, i.e.,Ward No. 2, Bhour Camp, Jammu. He is the real brother of the deceased and resident of Ward No. 2, Bhour Camp where the accused also resides. He had gone to answer the call of nature and was away at a distance of 15-20 yards from the place of occurrence. He is the real brother of the deceased and resident of Ward No. 2, Bhour Camp where the accused also resides. He had gone to answer the call of nature and was away at a distance of 15-20 yards from the place of occurrence. Both the deceased and PW Gurdev Singh were within his view from the place where he was easing himself and stated that when the accused started abusing the deceased he shouted at them not to quarrel. By the time he returned from easing himself to the place of occurrence, the accused had stabbed the deceased. He also stated that the accused had abused the deceased first and then wiped out the Kirch and stabbed the deceased giving the first blow on the neck, second in the abdomen and third in the chest of the deceased, who fell down and started bleeding profusely and the accused took to his heels. He removed the deceased to the S.M.G.S Hospital, Jammu accompanied by PW Gurdev Singh but the Doctors declared him dead on reaching the Hospital. He lodged a report about the occurrence and a case under section 302 RPC stood registered against the accused. The police swang into action and arrested the accused on the same evening. Whereas the evidence provided by PW Gurdev Singh, who is stated to be another eye witness of occurrence, according to the prosecution, is to the effect that while he was standing with the deceased, the assailant described as 5 feet 9 inch in height, came to the deceased, asked his name and then stabbed him with sharp edged weapon. He further says that assailant fled away from the place of occurrence. The witness further stated that the accused had not stabbed the deceased. The prosecution declared the prosecution witness as hostile and subjected him to cross examination to assail his credibility. The witness when confronted with the statement recorded under section 161 Cr.P.C, he admitted some of the portion of the statement and denied the other. The admitted portion of the statement recorded under section 161 Cr.P.C pertains to the effect that he along with the deceased was standing at the place of occurrence in the lane outside the School building. He, however, denied the part of the statement recorded under section 161 Cr.P.C referring to the arrival of the accused and his stabbing the deceased. The admitted portion of the statement recorded under section 161 Cr.P.C pertains to the effect that he along with the deceased was standing at the place of occurrence in the lane outside the School building. He, however, denied the part of the statement recorded under section 161 Cr.P.C referring to the arrival of the accused and his stabbing the deceased. He admitted his signatures on the disclosure statement EXPWIS/2 and the discovery memo EXPWIS/3 vide which the Kirch, the weapon of offence, was recovered and seized but denied the contents of these documents. He also admitted his signatures on the seizure memos EXPWIS/5 and EXPWIS/6 pertaining to the samples of earth taken from the place of occurrence. 6. It is apt to point out that PW Inderjeet Singh stated that the deceased was stabbed by the accused/appellant thrice which fact stood corroborated by the testimony of PW Gurdev Singh, an eye witness. He further supported the evidence of PW Gurdev Singh who stated that assailant ran away after stabbing the deceased. PW Gurdev Singh also made no secret of the fact that assailant was armed with sharp- edged weapon. In other words, support to the testimony of PW Inderjeet Singh is provided by the evidence of PW Gurdev Singh with regard to the fact that the deceased and the accused were standing together at the time of occurrence, the accused was armed with sharp- edged weapon and stabbed the deceased and, thereafter, he fled away from the place of occurrence. The arrest of the accused immediately after the occurrence is proved by unrefuted evidence on record. Dr. S.D.Thakur conducted the post mortem examination of the deceased and found the following injuries on the dead body of the deceased, as is indicated in his report:- "1. Stab wound over the right side of neck 1 cm above middle part of clavicle 1cmx1/2 cm 2cm underlying carotid vessels cut A/M 2. Stab wound over left side of chest at level of nipple 1 cm from mid line 3 cm x 1 cm entering into chest cavity A/M 3. A stab wound over left side of abdomen at level with umbilicus 7 cm from mid line cm x 1/2 cm x 1/2 cm." 7. Stab wound over left side of chest at level of nipple 1 cm from mid line 3 cm x 1 cm entering into chest cavity A/M 3. A stab wound over left side of abdomen at level with umbilicus 7 cm from mid line cm x 1/2 cm x 1/2 cm." 7. The weapon of offence being Kirch was also shown to the doctor to observe as to whether the injuries can be caused with said weapon, gave his opinion as under:- "Out line of weapon of offence (kirch) produced before me by S.G.C. Moh. Ismail No. 497 P/S Satwari. It is a Kartch with cover. Kertch was a metallic blade and wooden bandle, blade has one edge sharpe one blunt. Some raddish stains present over blade. This weapon can cause injuries as described in postmortem report of Sikhdev Singh S/O Jeevan Singh whose postmortem was conducted by me on 2.11.89 weapon sealed in my presence." 8. The cause of death given by the doctor is the injury to the heart and neck. Therefore, the evidence of the ocular witnesses also finds corroboration with the medical testimony. Even facts contained in the First Information Report disclose that the accused arrived at the place of occurrence where deceased Sikhdev Singh and PW Gurdev Singh were standing together. The accused started abusing the deceased and, thereafter, stabbed him with the Kirch in his possession and, thereafter, fled away from the place of occurrence. The First Information Report further recites that the deceased was taken to the Hospital in a Truck with the assistance of PW Gurdev Singh. The First Information Report was registered on 7.30 P.M on a written report of PW Inderjeet Singh. On going through the statement of PW Inderjeet Singh, it is found that he has not been cross-examined with regard to his presence on the spot at the time of occurrence nor any suggestion was put to him in regard to the accused that he was not the assailant mounting the attack on the deceased and causing injuries with the Kirch. 9. The main thrust of the appellants counsel in her argument is that PW Inderjeet Singh being the real brother of the deceased is an interested witness and his evidence cannot be believed and accepted without independent corroboration. 9. The main thrust of the appellants counsel in her argument is that PW Inderjeet Singh being the real brother of the deceased is an interested witness and his evidence cannot be believed and accepted without independent corroboration. She further pointed out that PW Inderjeet Singh, who lodged the First Information Report, indicated in the report that only one stab wound was inflicted, whereas in his deposition on oath stated that three stab wounds were caused by the accused with the Kirch to the deceased, which clearly shows that this witness was not present at the scene of occurrence at the relevant time. 10. As regards the first contention of the appellants counsel that the deceased being a close relative and, consequently, being a partisan witness, should not be relied upon, it may be pointed out that a close relative who is natural witness cannot be regarded as interested witness. The term "interested" postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some animus or for some other reason, but in this case there is nothing on record in order to even suggest to prosecution witnesses to indicate that PW Inderjeet Singh had animus against the accused. It may further be pointed out that the evidence of eye witness cannot be discarded only on the ground that he is close relative of the deceased. However, in such a situation, the Court must put itself on guard and evidence of such witness be appreciated with close scrutiny. The minor contradictions in its testimony are not material. Where such evidence stands the test of careful and close scrutiny, it must be accepted, particularly when corroborated by the evidence of other independent witness as regards his presence at the scene of occurrence, the weapon used for inflicting the injuries to the deceased, number of injuries and place of its infliction by the assailant, and further arrest of accused immediately after the occurrence and discovery of weapon of offence, on the disclosure statement of the accused, and also supported by the medical evidence. The apex Court examined the question of credibility of the evidence of the related witness in case Hari jana Narayana v. State of Andhra Pradesh, 2003 AIR SCW 3606 and held as under:- "The evidence, in each case, has to be considered from the point of trust-worthiness and from the angle as to whether it inspires confidence in the mind of the Court to accept and that the question of credibility and reliability of a witness has to be decided with reference to the way he fared in cross-examination and the nature of impression created in the mind of the Court. There is no such universal rule as to warrant rejection of the evidence of a witness merely because he/she was related to or interested in the parties on either side. In such cases if the presence of such a witness at the time of occurrence is proved or considered to be natural and the evidence tendered by such witness is found in the light of the surrounding circumstances and probabilities of the case to be true, it can provide a good and sound basis for conviction of the accused." 11. A similar view has been taken by the Apex Court in Sucha Singh v. State of Punjab, 2003 AIR SCW 3984, and held as under:- "Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. It cannot be said that the witness being a close relative and consequently being a partisan witness should not be relied upon". It, therefore, follows that it is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. Evidence of eye witness Inderjeet Singh cannot be said to have been suffered from any frailty. The witness was cross- examined at length. Nothing infirm was elicited to cast doubt on his veracity. There is no reason gatherable from his statement to falsely implicate accused persons. Foundation has to be laid if plea of false implication is made. Evidence of eye witness Inderjeet Singh cannot be said to have been suffered from any frailty. The witness was cross- examined at length. Nothing infirm was elicited to cast doubt on his veracity. There is no reason gatherable from his statement to falsely implicate accused persons. Merely because he happened to be the real brother of the deceased and the other witness was known to him that per se cannot be a ground to discard his evidence. Therefore, the plea that PW Inderjeet Singh is the close witness and consequently should not be relied upon, has no substance. 12. As regards the next contention raised by the appellants counsel, we may point out that First Information Report is not the be all and end all of the investigation. It is only to put the Police in to motion. The First Information Report in this case has been lodged by PW Inderjeet Singh, who is the real brother of the deceased, with the Police Station immediately after the occurrence. An omission pointed out by the appellants counsel that in the First Information Report, the informant had indicated one stab wound inflicted on the deceased, but in his evidence, he deposed that three stab wounds were inflicted by the accused, which would not lead to discredit the entire prosecution case. Such omissions are bound to occur when the report is lodged by near relative in respect of the murder of his brother in a state of shock and great agony. It is not expected nor it is possible to put down the minute details in the First Information Report. Where an omission of general nature is found in the First Information Report lodged by an eye witness, and his evidence recorded in the Court is not sufficient to throw out the case of the prosecution since the First Information Report is not a substantive piece of evidence in law, such omission deserves to be struck down. 13. PW Inderjeet Singh had gone to answer the call of nature in the bushes and was near to the site of occurrence. Both the deceased and PW Gurdev Singh were within his view at a distance of 15 to 20 yards. 13. PW Inderjeet Singh had gone to answer the call of nature in the bushes and was near to the site of occurrence. Both the deceased and PW Gurdev Singh were within his view at a distance of 15 to 20 yards. He has also stated that the accused/appellant abused the deceased first and then stabbed him thrice; first on the neck, second in the abdomen and third in the chest of the deceased with the Kirch in his possession. It is also in his evidence that PW Gurdev Singh accompanied him to the Hospital when the deceased was removed from the place of occurrence in a Truck and then also accompanied him to the Police Station. Facts having not been assailed in the cross-examination of PW Inderjeet Singh clearly establish his presence on the spot at the time of occurrence beyond any pale of doubt. His evidence stood further corroborated by PW Gurdev Singh that the deceased was stabbed by assailant thrice by sharp-edged weapon and further supported by the medical evidence. This contention of the appellants counsel, therefore, in our view, is also not tenable. 14. Another leg of argument advanced by the appellants counsel is that PW Gurdev Singh has been declared hostile, his evidence cannot be relied upon to provide corroboration to the prosecution case. Some portion of his evidence is inconsistent with the statement given under section 161 Cr.P.C and the witness war declared hostile, that does not mean total rejection of evidence. A portion of the evidence in favour of prosecution or the accused may be accepted on close scrutiny. The fact that the witness was declared hostile by the Court at the request of prosecuting counsel and he was allowed to cross-examine the witness, no doubt, furnishes no justification for rejecting en bloc the evidence of the witness. Witness, not deposing some facts truthfully, it is no ground for rejecting whole body of his testimony. The grain in his evidence can be sifted from the chaff in the light of the other evidence and the surrounding circumstances and probabilities of the case. The evidence of the hostile witness has to be appreciated like the evidence of any other witness. The grain in his evidence can be sifted from the chaff in the light of the other evidence and the surrounding circumstances and probabilities of the case. The evidence of the hostile witness has to be appreciated like the evidence of any other witness. The Apex Court in Case Koli Lakhmanbhai Chanabhai v. State of Gujarat, (1999) 8 SCC 624, while considering the testimony of hostile witness and its evidentiary value, held as under:- "..It is settled law that evidence of a hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence....." 15. Further, if truth can be taken out from the evidence of a hostile witness, the Court is competent to consider it. Merely because a witness is declared hostile, it does not mean that his entire evidence gets excluded or rendered unworthy of consideration. In other words, when the truthful witnesses mention the presence of other witnesses, who turned hostile, at the place of occurrence, the evidence of those hostile witnesses can also be relied on so far as they are consistent with prosecution case. 16. In the present case, the evidence of PW Gurdev Singh, who has been declared hostile, cannot be rejected in entirety, because of his admitted presence on the spot at the time of occurrence. The statement of PW Gurdev Singh to the effect that the deceased was stabbed by the assailant in his presence at the place of occurrence, provides corroboration to the prosecution version. His further statement that three stab wounds were inflicted by the accused appellant on the deceased and thereafter he fled away from the spot, further supports the prosecution case. This evidence of PW Gurdev Singh, notwithstanding, he has been declared hostile, can be relied upon for having corroborated with the evidence tendered by eye witness Inderjeet Singh and is found credible and trustworthy and is consistent with the prosecution version. The only portion of the statement of PW Gurdev Singh, which is not supporting the prosecution story, is that the accused was not the assailant. There is nothing found in his testimony that he did not identify the accused. The only portion of the statement of PW Gurdev Singh, which is not supporting the prosecution story, is that the accused was not the assailant. There is nothing found in his testimony that he did not identify the accused. PW Gurdev Singh only stated that the assailant was not identified. This part of the statement of witness Gurdev Singh is not found truthful for obvious reasons to have been made contrary to what has been stated before the Investigating Officer under section 161 Cr.P.C with the purpose and intent to help the accused and not to interfere into his peaceful life in attracting any animosity with the accused in view of present scenario, unabated violence and sense of security to a common man. We also do not find any substance in this contention of the appellants counsel to merit acceptance. 17. The direct evidence provided by the eye witnesses further finds support from other incriminating circumstances, viz., discovery of Kirch followed by the disclosure statement made by the accused during interrogation, which clearly establishes that the deceased was stabbed by the accused. The investigation of the case was conducted by Mr. Raghubir Singh, Dy. Superintendent of Police. After the registration of the case, he repaired to the scene of occurrence. The accused was arrested and soon after made a disclosure statement describing the place where he had thrown the Kirch, the weapon of offence. The disclosure statement led to the discovery of Kirch in the presence of PWs Inderjeet Singh and Gurdev Singh. PW Gurdev Singh, however, admitted his signatures, whereas PW Inderjeet Singh proved and corroborated the documents and admitted his signatures. Even PW Gurdev Singh also admitted his signatures on the memo of disclosure statement and consequently discovery of weapon of offence at the instance of the accused, but denied its contents. The witness has been cross-examined by the prosecution with regard to the disclosure and followed by discovery of weapon of offence. 18. In a vain attempt, the appellants counsel further pleaded that weapon of offence having been recovered from an open place, it could not be attributed to the accused. This argument is too of no avail to the defence of appellant, since the place of recovery is not an open place, but a drain abutting the School building and, thus, is not a thoroughfare. This argument is too of no avail to the defence of appellant, since the place of recovery is not an open place, but a drain abutting the School building and, thus, is not a thoroughfare. Disclosure with regard to Kirch and thereafter its discovery at the instance of accused has been testified by PW Inderjeet Singh. This witness has not been cross-examined on the point of discovery and disclosure made by the accused. PW Raghubir Singh, Investigating Officer, unambiguously stated in the statement that PW Inderjeet Singh, informant, accompanied him to the place of occurrence. This, sufficiently and satisfactorily proved the fact of recovery of weapon of offence at the instance of accused, in his presence. When the statement of witness on this aspect has not been challenged in his cross-examination, an argument put forth by the appellants counsel with regard to absence of witness at the time of disclosure and discovery is without any substance. Nothing inherent, improbable or unimpeachable has been trotted out either from the cross-examination of PW Inderjeet Singh or Investigating Officer, namely, Raghubir Singh, so as to cast a spec of doubt on their veracity. The evidence provided by PW Inderjeet Singh, an eye witness, and further corroborated by another eye witness, namely, Gurdev Singh on vital point and again supported by the medical testimony and circumstantial evidence, drives us to a conclusion not different from the one reached by the trial Court in holding the accused guilty of stabbing the deceased to death with the Kirch. It has, thus, been established by unimpeachable, convincing, reliable, positive, cogent, truthful and trustworthy evidence that the appellant-accused has caused the murder of deceased, Sikhdev Singh, by inflicting blows with the Kirch on his Neck, abdomen and chest on the ill-starred day at Ward No. 2, Bhour Camp, Jammu. 19. Considering the above stated evidence on record, it cannot be said that the trial Court has committed any error in convicting the accused-appellant for an offence punishable under section 302 RPC. We, therefore, see no reason to interfere with the order of conviction dated 16.4.1994 passed by the trial Court. The conviction and sentence recorded by the trial Court are confirmed as legal and in accordance with law and appeal deserves to be dismissed and is ordered accordingly. Both the appeal and confirmation received from the learned Sessions Judge, Jammu are disposed of accordingly. 20. The conviction and sentence recorded by the trial Court are confirmed as legal and in accordance with law and appeal deserves to be dismissed and is ordered accordingly. Both the appeal and confirmation received from the learned Sessions Judge, Jammu are disposed of accordingly. 20. The accused is on bail, his bail bonds shall stand cancelled and he be taken into custody to serve the sentence awarded.