Pappu v. State (Govt of Nct) of Delhi

JUDGMENT : SUNITA GUPTA, J.

¶1By this appealfiled under Section374 ofthe Code of Criminal Procedure, 1973 (hereinafterreferred to as Cr.P.C.), the appellant seeks to challengethe impugnedjudgmentdated 6^*^ April, 2013 and order on sentence dated 8^^ April, 2013 in Sessions Case No.26/10 arising out of FIR 58/10 u/s 307 IPC registered with PS Mahendra Park, Delhi whereby he was convicted under Section 307 IPC and was sentenced to undergo rigorous imprisonment for seven years and ftirther directed to pay a fine of Rs.5000/- in default to undergo simple CrI.A.927/2013 Page I of25 f) imprisonmentfor a periodof one month. Benefitunder Section428 Cr.P.C. was also given to the appellant.

¶2Prosecution case as disclosed in para 1 of the impugned judgment is as follows: "On 08.03.2010,informationwas receivedat Police Station Mahendra Park regardingstabbing of three persons at Azadpur Mandi. The said informationwas reducedinto writing vide Ex.PW8/A i.e. DD No.3A and the same was handed over to PW16SIRanvirSinghfor investigation. The PW16SI RanvirSinghproceededto the place ofincidenti.e. at Chowkof B-Block,infrontofshopnumberB-2/36,NewSubziMandi,Azadpur,Delhi along with PW3 Ct. Kuldeepwherehe came toknowthat the injuredhave gone to SunderLalJainHospitalwith theiracquaintance.No eye witness wasfoundat the spotandso PW16SI RanvirSingh andPW3 Ct. Kuldeep went to Sunder Lai Jain Hospitaland obtained MLCs of injuredi.e. MCL No.7325/10of injuredRohtash, MLC No.7326/10of injuredSatish and MLC No.7327/10of injured Kulwant Singh, whereupon the concerned doctorhad mentioned"allegedhistoryof assault with stab injuries".All the threeinjuredwerefoundadmittedin hospitalandundertreatmentin operationtheatre. Subsequently,injuredSatish Kumar came out of the operation theatre and after he was declaredfit for statement, his statement Ex.PW7/A was recorded by the InvestigatingOfficer, wherein he stated that he was working as driver on truck number HR 47B 0030 and that his youngerbrotherRohtash was workingas seconddriveron the said truck, while KulwantSignh was working as their helper on the truck. On 06.03.2010,complainantcame to D-1341,AzadpurMandifrom Kolkatawith vegetablesin this truck. He unloadedvegetablesat godown number D-1341 and proceeded to his company BKTC at 47, Transport Centre,SubziMandi.At about 12.30 at night, when they reached infront of B-236, Subzi Mandi, their truck got stuck in trafficjam. Complainant, his younger brother Rohtash and helper Kulwantstopped their truck and got down to find out reason for the said trafficjam. In the meanwhile, one person, who was under influence of alcohol, came there and started abusing them and told them to remove their truck and threatened that in case, they did not remove their truck, then he would kill them. On this, complainant told the said persons not to abuse them and also questioned him how he could threaten to kill them and further told him that he would remove truck as soon as trucks in front of his truck started moving. On hearing this, the drunken person took out a knife and gave a blow with it Page2 of25 4) on the abdomen of the complainant,when Rohtash, youngerbrother of complainantcame tosavehim, saidpersongave fj/owon his abdomenas M/e//. When, their helper Kulwant tried to catch hold of hand of that person,he gaveseveralblowsto Kulwantalso. Complainantas wellas his brother and their helperfell down at the spot. Hearingthe noises,public personscollectedat the spot and apprehendedsaid person i.e. accused Pappu and also gave him beatings.Complainantgave a call to hisfriend Ranvir who took them all to Sunder Lai Jain Hospital.Accusedwas also taken to hospitalin a PCR van. The complainantprayedthat action be taken against the accused Pappu, who had caused injuries to him, his brother Rohtash and his helper Kulwant. "

¶3On the basis of this statement made by the complainant, case FIR EX.PW2/A i.e. FIR No.58/10 under Section IPG was registeredat Police Station Mahendra Park against accused Pappu. The investigationwere commencedby PW16 SI Ranvir Singh and duringthe courseofthe saidinvestigation,he preparedthe siteplanof the place of incidentat the pointingout of the complainant.Accused was arrestedon 09.03.2010upon dischargefrom BJRMHospital.The disclosure statement of accused was recorded and at his instance, pointingout memo ofthe placeof incidentwas also prepared.During the course of investigation, the accused got recovered one knife, which he had used in commission of offence in the present case. The said knife was seized and was sent to FSL along with the clothes of the injured persons. Opinion regarding the knife was also taken from the concerned doctor. After completing investigation, the charge sheet Page3of25 was filed in the court of concerned Ld. Metropolitan Magistrate.

¶4After committal of the case, charge u/s 307 IPC was framed againstthe accusedto which he pleadednot guilty and claimedtrial. In order to substantiate its case, prosecution examined 16 witnesses. All the incriminatingevidencewasput to the accusedwhilerecording his statement u/s Cr.PC. wherein he denied the case of prosecution,claimed innocenceand alleged false implicationat the instance of Ranbir Singh, Commission agent who was having a grudge againsthim. He however,did not preferto lead any defence evidence.

¶5After considering the rival submissions made by learned counselfor the partiesand the evidenceadducedby the prosecution, vide impugnedjudgmentdated 6^^ April, 2013, learned Additional SessionsJudge convictedthe appellantholdingthat prosecutionhas succeeded in proving the guilt of the accused beyond reasonable doubt and thereafter sentenced him as mentioned hereinabove. Feelingdissatisfied,presentappealhas beenpreferred.

¶6It is submittedby learned counsel for the appellantthat the appellanthas beenfalselyimplicatedin the instantcaseat the instance of Ranbir Singh. As per the prosecutioncase, PW-5 Rohtash was " . Page 4 of25 E? workingas seconddriveron truckbearingRegistrationNo. HR 47 B 0030, however,this fact is behedby PW9-VijayDora, ownerofthe truck who deposedthat althoughat one point of time, Rohtashwas workingas a driveron the said truck, however,on the relevantdate, he was not working as driver. Furthermore,as per the prosecution version, Kulwant Singh sustained more injuries than Satish Kumar and Rohtash, however, Kulwant has not been examined by the prosecution. Discrepancies have appeared in the testimonies of PW Satish and Rohtash. The concerned doctor who examined the injured persons has not been examined instead some other doctor was examined. As such, the MLC's of the injured persons were not duly proved. It is also the case of prosecutionthat knife was recoveredat the instance of accused. If the case of prosecution that accused was apprehendedat the spot and was handedover to the policethen there was no occasion for the accused to conceal the knife and then get it recovered subsequently. As such, the knife was planted upon the accused. The accused sustained more injuries and was discharged from the hospital on the next day. Under the circumstances, the prosecution has not been able to establish the guilt of the accused beyondreasonabledoubt. As such,accusedis entitledto be acquitted. Page5 of25 » Alternatively,it was submittedthat at the most Section 324 IPC is made out. Accused is also in custody for the last more than 4 Vi years. As such, he be released on the period already undergone.

¶7Rebuttingthe submissionof learnedcounselfor the appellants, it was submittedby the learnedAdditionalPublic Prosecutorfor the Statethatthe impugnedjudgmentdoes not sufferfrom any infirmity. The case of the prosecutionstandsproved from the testimonyof the injuredSatishand Rohtash. One ofthe injuredKulwantSinghcould not be examinedby the prosecutionbeing not traceable. However, that itself is not sufficient to discard the testimony of two other injured persons. Moreover, the ocular testimony of the injured persons find corroborationfrom the medical evidence as well as scientific evidence. It was suggestedto the prosecutionwitnessesthat no injury was causedby the accusedbut they sustainedinjuriesfrom screw driver. However, no such suggestion was given to the doctor who appeared in the witness box. The injured persons had no animosity to implicate the accused in a false case. Even there is no chance of false implication at the behest of police officials as the accused is having criminal antecedents and is involved in as many as 'pi/ eightcases. Underthe circumstancesit was submittedthatthe appeal beingdevoidofmerits,be dismissed.

¶8I have given my considerable thoughts to the respective submissionsoflearnedcounsel for the partiesand have perusedthe record.

¶9It is revealed from the testimony of PW5 Rohtash and PW7 Satish Kumar that Satish Kumar was working as driver on Truck No. HR 47 B 0030 on which PW5 Rohtash was working as-second driver and Kulwant as helper. They used to deliver the vegetables through the said truck in SubzimandiAzadpur. On 6^*^ March, 2010, they brought vegetables from Calcutta and unloaded the truck at Subzimandi Azadpur. At about 12:00-12:30 AM in the midnight of 7^^ March,2010 they were goingto theirofficesituatedatBKTC, 47, Transport Centre at Azadpur Mandi and there was a jam on the road. They all got down from the truck to see the reason of traffic jam. In the meantime, accused who was under the influence of liquor came there and started abusing them as to why they have stopped the vehicle there and asked them to remove the same. He further told them that he was the Dada of the area. When they objected, he took out a knife and stabbed Satish in his abdomen. When Rohtash tried to >3 savehis brother,he stabbedhim also on his abdomenand whenhelper Kuldeeptriedto catchthe accused,he was alsogivenmultipleinjuries on his abdomen, elbow and thumb. Blood started oozing out firom their injuries. When they raised alarm, accused started running and during that process, he fell down. Public persons caught hold of him and gave him beatings. Satish made a telephonic call at 100 number and also called Ranbir Singh, Commission Agent. Ranbir Singh came there and removed them to Sunder Lai Jain hospital at Ashok Vihar. Their blood stained clothes were taken into possession by doctors in the hospital. Boththe witnessesidentifiedthe knifeEx.Pl withwhich the accused inflicted injuries on their person. They also identified their blood stained clothes which were seized by doctor at the hospital.

¶10It is trite law that the evidence of an injured witness has greater evidentiaryvalue and unless compellingreasonsexist,his statementis not to be discarded lightly. Normally an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence or to involve anybody falsely and in the bargain, protect the real culprit.

¶11Minor contradictions/improvementscannot render an injured witness'sdepositionuntrustworthy.The law on this aspecthas been detailedin thejudgment 'StateofUttarPradeshvs. Nareshandors:,

(2011)4 see 324 as under: "27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (VideJarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v.State of M.P.)."

¶12Similarly in another case ^Abdul Sayed vs. State of Madhya Pradesh', (2010) 10 SCC 259, Hon'ble SupremeCourt observedthat: "The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensivelydiscussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [VideRamlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Shag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.] i

¶13In State ofMadhyaPradesh v. Man Singh , (2003) 10 SCC 414, it was held that: "r/7e evidenceof injured witnesseshave greaterevidentiaryvalue and unless compelling reasons exist, their statements are not to be discarded lightly. Merely because there m/os no mention of a knife in the first information report. That does not wash away the effect of evidence tendered by the injured witnesses PWs 4 and 7. l\Ainor discrepancies do not corrode credibility of otherwise acceptable evidence. The circumstances highlighted by the High Court to attach vulnerability to evidence of the injured witnesses are clearly inconsequential. Though, it is fairly conceded by learned counsel for the accused that though mere non-mention of the assailants' names in the requisition memo of injury is not sufficient to discard the prosecution version in entirety, according to him it is a doubtful circumstance and forms a vital link to determine whether prosecution version is credible. It is a settled position in law that omission to mention the name of the assailants in the requisition memo perforce does not render prosecution version brittle."

¶14This settled position was reiterated in Mano Dutt & Anr. v. State of UP, (2012) 2 SCC (Crl.) 226 where Hon'ble SupremeCourt referred to the earlier decisions and observed as under;- "31. We may merely refer to the case of Abdul Sayeedy. State of Madhya Pradesh [(2010) 10 SCC259], where this Court held as under: "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincingevidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCCp. 606b-c), Dinesh Kumar v. State of Rajasthan, Ws^nt/ u State of Rajasthan,AnnareddySambasivaReddy v. StateofA.P.andBalrajev. StateofMaharashtra.]

¶29While decidingthis issue, a similarview was taken in Jarnail Singh V. StateofPunjab, where this Courtreiteratedthe special evidentiarystatusaccordedto the testimonyofan injuredaccused and relyingon its earlierJudgmentsheldas under: "28. DarshanSingh (PW4) wasan injuredwitness.He had been examinedby the doctor. His testimonycouldnot be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

¶29In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below."

¶30The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein." f 9/;

¶15Testingon the anvil of this legal proposition,the testimonyof the injured witnesseshave to be scrutinisedcarefully.A perusal of their testimonygoes to show that their presenceat the spot has not been disputed by the accused. Moreover, the factum of their sustaining injuries in the incident is an inbuilt assurance regarding their presence at the spot. Both these witnesses were subjected to gruelling cross-examinationbut nothing material could be elicited to discredit their testimony.

¶16Learned counsel for the appellant pointed out certain discrepanciesin theirtestimony. However,human memoryis bound to lapse with passage of time. It is a settled legal positionthat the Courts are not to get skewedby minor contradictionsor insignificant discrepancies when otherwise testimony of a witness is cogent, credible and trustworthy on the material aspects of the case. No witness even the most genuine one would be in a position to give the exact account of the scene of crime minutely or to describe what preceded the incident and what exactly happened post incident. Some minor discrepancies, variations and improvements are bound to occur due to multiple factors governing the human behaviour and the background of a particular witness under examination and, therefore. unless such discrepancies and improvements affect the core of the prosecution case, no undue importance should be given to such minor discrepancies, variations and improvements which usually creep in the testimony of any witness, due to multiple factors.

¶17TheHon'bleSupremeCourtin variousauthoritieshas time and again held that unless there are vital improvements,they cannot by itself affectthe credibilityof a witnessand unless contradictionsare on materialdimensionthey shouldnotbe usedtojettisontheevidence in its entirety and trivial discrepanciesought not to obliteratethe otherwise acceptable testimony of a witness. It was observed in Dhanvir and Ors. V5. The State, 85 (2000) DLT 711, that human memoryis not a mere computerwherememorycan be fed or restored for all times to come and later on when retrieved it would be verbatim the same. A human being, when he describes some incident in a natural course, some variation is bound to take place and so long as the variations are natural and minor they ought to be ignored.

¶18In the recent case of Gangabhavani vs. Rayapati Venkat Reddy and Ors., (2013) 15 SCC 298, Hon'ble Supreme Court observed that; > "CONTRADITIONSIN EVIDENCE:

¶13In State of U.P. v. Naresh: (2011) 4 SCC 324, this Court after consideringa largenumberofitsearlierjudgmentsheld:

¶30In allcriminalcases, normaldiscrepanciesare boundto occur in the depositions of witnesses due to normal errors of observation,namely,errors of memorydue to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.

¶9Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a cruciblefor being tested on the touchstone of credibility. Therefore,meremarginalvariationsin thestatementsofa witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materiallyaffectthe trialor core of the prosecution'scase, render the testimonyof the witnessliable to be discredited. A similar view has been reiterated by this Court in Tehsildar Singh and Anr. v. State of U.P.; AIR 1959 SC1012; Pudhu Raja and Anr. V. State, Rep. by Inspector of Police ; JT2012 (9) SC 252; and Lai Bahadur v. State (Na of Delhi); (2013) 4 SCC557).

¶14Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to A form its opinionaboutthe credibilityof the witnessesandfind out as to whethertheirdepositionsinspireconfidence".

¶19The minordiscrepanciespointedout by the learnedcounselfor the appellant does not go to the root of the matter and shake the absolute version of the witnesses,and therefore, cannot be attached any undue importance. On material aspects both the witnesses have corroborated each other. There is no reason to discard their testimony with whom the accused is not alleging any animosity, ill will or grudge.

¶20As regards non examination of Kulwant Singh who also sustained injuries in the instant case, it has come on record that despiteeffortsmade by the InvestigatingOfficerof the case to serve him, he could not be producedin the Court being not traceable. In Bikram Singh and Ors. vs. State o/UP, 1994 SCC (cri) 1411 and Amar Singh vs. Balwinder Singh and Ors., (2003) 2 SCC 518, substantially similar plea was taken as some of the witnesses including injured witnesses were not examined by the prosecution and, therefore, it was urged that an adverse inference has to be drawn. Repellingthe contention,it was observedby Hon'ble SupremeCourt in Amar Singh(supYa)that it is true that the witnessesessentialto the h % unfoldingof the narrativeon whichthe prosecutionis based must be called by the prosecution,whethereffect of their testimonyis for or against the case of the prosecution. However, that does not mean that everyone who has witnessed the occurrence, whatever their number be, must be examined as a witness. In both these cases, certain witnesses were given up by the prosecution on the ground that they had been won over by the accused. It was observed that Section 134 of the Evidence Act provides that no particular number of witnesses shall in anycasebe requiredforthe proofof anyfact. Referencewas made to a very illustrativejudgment rendered as far back as in Vadivelu Thevar v. State ofMadras, AIR 1957 SC 614 where it was held:- ".The contention that in a murder case, the court should insist upon pluralityof witnesses,ismuch too broadlystated. The Indian Legislaturehas not insisted on laying down any such exceptions to the general rule recognisedinS.134, which bylayingdown that "noparticular number of witnesses shall, in any case, be required for the proof of any fact" has enshrined the well recognised maxim that "Evidencehas to be weighed and not counted." It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished.." The abovequoted principle was later reiterated in Ramratan vs. State of Rajasthan, AIR 1962 SC 424.

¶21The present case stand on a much better footing as Kulwant could not be examined by the prosecution being not traceable. Under the circumstances, failure to examine him cannot be made a ground to reject the evidence of other eye witnesses who also sustained injuries in the course of same incident in which Kulwant sustained injuries. Rather various suggestions given to PWs Satish and Rohtash reflects that presenceof KulwantSingh at the spot and his sustaininginjuries was not even disputedby the accused,inasmuchas, it was suggested to PWS Rohtash that complainant Satish had quarrelled with some other truck driver due to which stampedetook place and he alongwith Kulwant sustained injuries from the screw driver carried by them. Similarly, it was suggested to PW7 Satish Kumar that Satish and Rohtashsustainedinjuriesfrom screwdriverwhichwas in the handof Kulwant and Kulwantsustainedinjuries as he struck againstthe body of the truckduringthe stampede,meaningtherebythat presenceof the Kulwant and his sustaining injuries at the spot is not even disputedby the accused.

¶22As regardsthe submissionof learnedcounselfor the appellant that as per the testimony of PW9 Vijay Dora, at the relevant time _} -^5 Rohtash was not working as a driver on his truck does not lead to the conclusion that PW5 Rohtash was not present along with PW7 Satish and injured Kulwant at the place on the date of incident because the controversy in the case does not centre around the fact as to who were working as driver/second driver/helper on the truck but was whether any such incident had taken place or not and whether injured persons sustained injuries in the incident which stand proved from the ocular testimony of PW Satish and Rohtash whose testimony is reliable, trustworthy and inspires confidence. Under the circumstances, from the ocular testimony of Satish Kumar and Rohtash it is established beyond reasonable doubt that it was the accused who inflictedinjuries on their persons.

¶23Further the ocular testimony of both these witnesses also find corroboration from other surrounding circumstances. It has come in the statement of PW7-Satish that after sustaining injuries he informed police at 100 number and also made a call to Ranbir, Commission Agentwhoreachedthe spotandremovedthe injuredto SunderlalJain Hospital. PW4-Ranbirhas corroboratedhis versionby deposingthat on receipt of a telephonic call from Satish regarding someone stabbing him and his brother Rohtash at B Block Chowk, Sabji J Mandi,he reachedthe spotandfound Satish,Rohtashandtheirhelper lyingonthe groundnearthe vehicleand they were havinginjurieson their persons and blood was oozing out from their injuries. He removed them to Sunder Lai Jain Hospital in a TSR and got them admitted there. Factum of admission of injured in hospital by this witness find corroboration from their MLC where in column of "broughtby" nameof Ranbiris mentioned.

¶24Further the ocular testimony of these witnesses find corroboration from medical evidence which shows that when the injuredpersonswere removedto the hospital,they were examinedby Dr. Nihalwho preparedMLC ofKulwantEx. PWl/A,thatofRohtash Ex. PWl/B and Satish Ex. 1/C. Since Dr. Nihal had left the services of the hospital,PWl-Dr.Alam appearedand provedthe MLC of all the injuredpersonspreparedbyDr. Nihal. PWlO-Dr.Anuj opinedthe nature of injuries sustainedby Kulwant Singh as "grievous" that of Rohtash as "dangerous" while that of SatishKumar as "simple".

¶25It is fiirther the case of prosecution as deposed by PW16 SI Ranbir Singhthat accusedmade a disclosurestatementEx.PW6/Cand led the police party in front of shop No. B-236, New Sabzi Mandi, Azadpur, Delhi and pointed out the place vide pointing out memo •J if Ex.PW6/Dwhere he stabbedthree persons. He also led the police party in front of shop No. B-256,New Subzi Mandi, Azadpur,Delhi from where he got recovered one buttondar knife from beneath the takhat. It was seized vide memo Ex. PW6/F. Both the witnesses have identified knife Ex.Pl to be the same knife with which injuries were caused to them. Moreover, the sealed parcel of knife was produced before PW15-Dr. V.K. Jha along with MLCs of injured and the doctor gave his opinion Ex.PW15/B that injuries mentionedin the MLC could have been causedby this knife or similar such knife.

¶26Recovery of this knife at the instance of accused has been challengedby learnedcounselfor accusedon the groundthat oncethe accused was apprehendedat the spot then there was no occasionfor him to conceal the knife. It has, however, come in the testimony of PW16 SI Ranbir Singhthat distancebetweenthe shop B-236, i.e., the place of incidentand shop No. B-256 in front of which the accused got recovered the knife hidden under the takhat, was about 20 mtrs. As such, it was not such a long distance that the accused could not have thrown the knife over there which he ultimately got recovered. Moreover, at best, it can be taken that recovery of knife at the instance of accused is doubtful and, therefore, it may be taken that it was a -) case of non-recovery of weapon of offence. In the face of clinching evidence coming on record, non-recovery of weapon of offence is not fatal as held in Ambika Prasad v. State, 1997, CrlJ. 2853.

¶27It was suggested to PW5 Rohtash and PW7 Satish that a stampede had taken place in which PW5 and PW7 sustained injuries from the screw driver which was in the hand of Kulwant and Kulwant himself sustained injuries as he struck against the body of the truck during the stampede. However, no such suggestionwas given to PW16 Dr. V.K. Jha to clarifyif the injuriessustainedby the injuredas reflected in their MLCs could have been caused by any other weapon like screw driver etc. As such, the factum of injuries sustained by PW5 Rohtash, PW7-Satish and Kulwant resulting from the knife blowsgivenbytheaccusedcannotbe disbelieved.

¶28Further, the blood stained clothes of the injured persons were taken in possessionin the hospital. The same were sent to FSL. PW14-MS. Shashi Bala, Sr. Scientific Officer examined the exhibits and provedher reportEx. PW14/Aand Ex. PW14/Band statedthat as per biological report, blood was detected on Ex. PWla-one shirt, PWlb onedampT Shirt, Ic One pant,2aT shirt,2bbanian,2cpant,2 d underwear,2e cloth piece of cloth and 3a one shirt and as per the ) serologicalreport, blood of B group was detected on Ex.2a, 2b, 2c and 3a. The blood on the clothes of njured further corroborates the version of the injured persons regarding sustaining injuries in the incident. Although no blood was d !tected on knife but that itself is not sufficientto casteany dent on the prosecutionversion.

¶29It was also urgedthatfingerprintsof accusedon the knife was not taken by the InvestigatingOfficerofthe case. The failureofthe InvestigatingOfficerin taking finger prints ofthe accusedfrom the knife cannot completelythrow out the prosecutioncase when the 3 testimony of eye-witness whose same is fully established from th presenceon the spotcannotbe doubtedas they all receivedinjuriesin the incident. In Karnel Singh v. was held that in cases of defecti circumspect in evaluating the ev State ofMP, 1995 Cri LJ 4173, it VG investigationthe court has to be certain omissions of the investi idence but it would not be right in acquittingan accusedpersonsolelyon accountofthe defectand to do so would tantamountto playing into the hands of the investigating officer if the investigationis designedlydefective.In Paras Yadav and Ors. v. StateofBihar, 1999 Cri LJ 1122whilecommentingupon ating agency, it was held that it may be that such lapse is committeddesignedlyor becauseof negligence and hence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. Similar view was taken in Ram Bihari Yadav v. State of Bihar, 1998 Cri LJ 2515 where it was observed that in such cases the story of the prosecutionwill have to be examined de hors such omissions and contaminated conduct of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainantparty and this would obviouslyshake the confidenceof the people not merely in the law enforcing agency but also in the administrationof justice. In our opinion the circumstancesrelied upon by learned counsel for the accused for submittingthat the investigationwas tainted are not of any substanceon which such an inferencecould be drawn and in a case like the present one where the prosecution case is fully establishedby the direct testimony of the eye-witnesses,which is corroboratedby the medical evidence,any failure or omissionof the investigatingofficer carmot render the prosecutioncase doubtful or unworthy of belief

¶30Lastly, a feeble attempt was made by learned counsel for the appellantby submittingthat appellantwas falsely implicatedin this V ^ case at the instance of Ranbir Singh. The same deserves outright rejectionas RanbirSinghwas the bestpersonto discloseifhe was on inimical terms with accused for which reason he would in connivance with injuredwouldfalselyimplicatehim in this case. Recordreveals that Ranbir Singh was examined as PW4, however, despite opportunitygiven, this witness was not cross-examinedby accused with the result he has not elicitedwhat enmity he was having with RanbirSinghfor whichreasonhe wouldgethim falselyimplicatedin this case. Moreover, in his statementrecorded under Section 313 Cr.P.C. a vague and bald plea has been taken without giving any specificdetailsofenmitywithRanbirSinghfor whichreasonhe may have been falselyimplicated.

¶31The entire evidence was minutely scrutinizedby the learned TrialCourtand the appellantwas rightlyconvictedunderSection307 IPG. The impugnedjudgmentdated 6^'' April, 2013 does not call for any interference. Even regardingthe quantum of sentence, it was submittedby the learned AdditionalPublic Prosecutorfor the State thatthe appellantis involvedin eightothercases. Moreover,without any provocation,the accused inflictedinjurieson vital parts of the body of all the injuredpersons. Moreover,he was not satisfiedby Page24 of25 » V ( causinginjurieson the personofSatishonly. WhenbrotherofSatish, Rohtashcame to his rescue, he inflictedknife blow on his abdomen resulting in dangerous injuries and thereafterwhen Kulwant Singh intervened,he also inflictedmultiple injuries upon him resultingin grievous injuries. Under the circumstances, the sentence awarded to the appellant cannot be said to be excessive which may call for any interference. That being so, the appeal is bereft of any merits, the same is accordingly dismissed. Trial Court record be sent back along with copy of the judgment. (SUNITA GUPTA) JUDGE FEBRUARY 04,2015 rs

$" * IN THE HIGH COURT OF DELHI AT NEW DELHI DateofDecision: 4^** February,2015 Crl. A. No. 927/2013 PAPPU Appellant Through: Ms. Vikas Padora, Advocate versus STATE (GOVT OF NCT) OF DELHI Respondent Through: Mr. O.P. Saxena, APP along with SI MP Saini, PS Mahindra Park CORAM: HON'BLE MS. JUSTICE SUNITA GUPTA