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2009 DIGILAW 1295 (DEL)

ANAND KUMAR v. STATE

2009-11-18

AJIT BHARIHOKE, SANJAY KISHAN KAUL

body2009
JUDGMENT : SANJAY KISHAN KAUL, J. (ORAL) 1. The case of the prosecution is that on the fateful evening of 1.11.1986 at about 8.30 PM, Vakeel Ahmed, the complainant was returning after buying vegetables from vegetable market, Gokal Puri and when he reached the corner of Park C Block, Gokalpuri, he saw six boys present at the back side of T.V. Centre. Four out of them, namely, the appellant Anand Kumar and the other co-accused Shyam Singh, Om Prakash and Pramood were having an altercation with Shankar, deceased and Mehboob (PW-6). He noticed Shyam Singh exhorting others to teach a lesson to the deceased for his arrogance. On this, Om Prakash and Pramood caught hold of the deceased and the appellant took out a dagger tucked near his socks and inflicted three to four blows on the person of the deceased, as a result deceased fell down and all four of them run away. In the meanwhile, Constable Vinod Raj and one Head Constable reached at the place of occurrence and he conveyed the information about the incident on telephone to the police station, which was recorded as DD No. 20A dated 1.11.1986 (Ex. PW 13/A). 2. On the receipt of copy of DD report, Devi Dayal SI (PW-13) reached at the place of occurrence and found the dead body of Shankar lying in a pool of blood. He recorded the statement of the complainant Ex.PW-7/B and sent it to the police station with his endorsement for the registration of the FIR and on the basis of the said complaint statement FIR u/s 302/34 IPC was registered. The Investigating Officer prepared the rough site plan, got the place of occurrence photographed from various angles, sent the dead body for postmortem and obtained the postmortem report. 3. On 3.11.1986, SI Devi Dayal arrested all the four accused on the pointing of the complainant from Kardam Puri Garden. From the search of the appellant, the dagger (churri) allegedly used by him for stabbing the deceased was recovered. It was in a leather cover and had blood stains. Subsequently, from serological examination, it was found that the dagger had stains of human blood group `A’ which was also the blood group of the deceased. From the search of the appellant, the dagger (churri) allegedly used by him for stabbing the deceased was recovered. It was in a leather cover and had blood stains. Subsequently, from serological examination, it was found that the dagger had stains of human blood group `A’ which was also the blood group of the deceased. It is further the case of the prosecution that the appellant also got recovered the blood stained clothes which he was wearing at the time of occurrence, which were also stated to have blood stains of the same blood group. The appellant and other three co-accused were sent for trial by the police. They were charged u/s 302/34 IPC. All of them pleaded innocence and claimed to be tried. 4. Learned counsel for the appellant has assailed the impugned judgment on the ground that the trial court has wrongly placed reliance upon the sole testimony of the complainant PW-7 Vakeel Ahmed who himself has not fully supported the case of the prosecution and was declared hostile at the request of the prosecution. He has submitted that trial court ought to have taken note of the fact that out of the four accused sent for trial on the basis of his complaint, he did not implicate or assign any role to the other three accused but implicated the appellant alone. Not only this, in the cross examination he admitted that he was a complainant in 5-6 other cases pertaining to the police station Gokal Puri, which also raises a suspicion that he is a stock witness of police station Gokal Puri. The trial court also failed to note that as per the scaled site plan Ex.PW-5/A, there was a distance of 14.2 mtrs. between the place of occurrence and the place from where PW-7 saw the occurrence and that from such a long distance he could not have seen the occurrence as his vision would be partly obstructed because admittedly, there was a wall with iron grills stated to be of total height of one mtr. in between. 5. On the other hand, learned counsel for the State has argued in support of the impugned judgment and he has submitted that there is no law that conviction cannot be based on testimony of a sole eye witness. 6. in between. 5. On the other hand, learned counsel for the State has argued in support of the impugned judgment and he has submitted that there is no law that conviction cannot be based on testimony of a sole eye witness. 6. It is true that there is no bar under law to base conviction on the basis of the testimony of a single witness. It is the quality of the evidence which matters and not the quantity. Since the other eye witness PW-6 Mehboob Ali examined by the prosecution has not supported the case of the prosecution, the testimony of PW-7 Vakeel Ahmed, in our view, is to be approached with extra care and caution particularly when this witness has turned hostile so far as the role of the other three co-accused is concerned. On perusal of record, it transpires that as per the case of prosecution PW-6 Mehboob Ali was admittedly present at the spot of occurrence and he had a better chance to witness the details of the occurrence. Despite this, there is no explanation as to why the Investigating Officer preferred to record the statement of PW7 Vakeel Ahmed for the purpose of registration of the case instead of the statement of PW-6 Mehboob Ali. Though at the first blush, this act on the part of Investigating Officer may appear to be innocent but when it is looked at in the background of the fact that PW-7 admittedly had been the complainant in 5-6 other cases of police station Gokal Puri, the conduct of the Investigating Officer becomes suspect. 7. As per the complaint Ex.PW-7/B , PW-7 Vakeel Ahmed implicated all the four accused including the appellant for the murder of the deceased and in his complaint statement he detailed the role of other three accused persons. He, however, in his testimony in the Court did not assign any role to the other three accused persons. From this, it can be safely inferred that either PW-7 was not truthful while giving his statement Ex.PW-7/B to the Investigating Officer or he has deposed falsely in the Court. In both the eventualities, only inference which can be drawn is that PW-7 Vakeel Ahmed is not a truthful witness. Therefore, we do not find it safe to place reliance upon his testimony. In both the eventualities, only inference which can be drawn is that PW-7 Vakeel Ahmed is not a truthful witness. Therefore, we do not find it safe to place reliance upon his testimony. It was a Diwali night, therefore, being Amavasya a possibility of there being sufficient light for the witness to see the occurrence was also bleak. The scaled site plan Ex.5/A shows only two light sources near the spot of occurrence, which were at the two corners at a distance of 11.05 mtrs. and 15.35 mtrs. respectively from the spot of occurrence. Further, it has come in evidence that PW-7 saw the occurrence from the side of the park and in his line of vision, there was a wall and railing of the park of around one meter height. If that was so, the version of the witness that the appellant took out the knife from near his socks is highly doubtful because through the wall and railing, he could not have seen the appellant taking out the knife from near his socks. 8. Lastly, case of the prosecution is that the weapon of offence i.e. the knife was recovered from the personal search of the appellant when he was arrested two days later from Kardam Puri park and at that time the knife is stated to have been in the leather case and it was having blood stains. It is highly improbable that a person having committed murder would keep the knife with the blood of the deceased thereupon for two days without making an effort either to conceal the knife somewhere or atleast wipe out the blood stains from the same. If the prosecution case is to be believed, then it appears that the appellant was waiting for the police to come and catch hold of him with incriminating evidence, which is highly improbable. 9. In view of the above, we do not deem it safe to rely upon the testimony of PW7 Vakeel Ahmed who turned hostile to the case of prosecution so far as the role of other three co-accused in the occurrence is concerned, particularly when he admittedly has been a complainant/witness in as many as 5-6 cases pertaining to P.S. Gokal Puri which raises a suspicion that he might be a stock witness of the police. The appellant, in our considered view, given the weak nature of evidence is entitled to the benefit of doubt. Accordingly we set aside the conviction of the appellant under Section 302 IPC and acquit him extending the benefit of doubt. 10. The appeal is accordingly allowed. The bail bond and surety stand discharged.