AJAY PAL Vs. STATE

JUDGEMENT

(1.) Briefly, the prosecution case is that on 26 th March, 2005, the day of Holi, an information was received at Police Station Mayur Vihar vide DD No.29B Ex.PW 7/A at about 3:40 PM from someone that his friend has been stabbed with knife and police be sent. PW7 Sub Inspector Kishan Chand along with Constable Rajender reached at E-30/64, Trilok Puri and found a Motor Cycle make Hero Honda, bearing number DL7S AC 8401 on the spot. They came to know that the injured has been removed to LBS Hospital by his friend in a rickshaw. PW7 SI Kishan Chand went to LBS Hospital leaving behind constable Rajender at the spot. The MLC of PW7 Rakesh the injured was collected from LBS Hospital. The injured had been referred to GTB Hospital. PW7 met his friends Deepak and Bharat Mal. In his statement Ex. PW1/A, Deepak stated that he was resident of E30/150, Trilok Puri, Delhi and at about 12:30 PM the injured PW3 came to his house to play Holi, in the meantime their other friend PW2 Bharat Lal also came and they played Holi over there. Around 3:10 PM while they were going, they came near the Nala Pusta Road along with Rakesh who had come to drop them. In the meantime, he and PW2 Bharat Lal went to urinate at the drain which was slightly towards downside and Rakesh continued standing there. They saw one motorcycle No. DL7S-AC-8401 make Hero Honda Ambition coming from the wrong side on which Ajay Pal and his brother were sitting. The Appellant Ajay Pal who was riding the motorcycle hit Rakesh from front due to which he fell down. Thereafter the brother of Ajay Pal caught hold of Rakesh and Ajay Pal gave 4/5 knife blows to Rakesh and leaving their motorcycle on the spot they ran away. On this statement of PW1 Deepak, ruqqa was sent and FIR No. 117/2005 under Section 307/34 IPC was registered at PS Mayur Vihar. Investigation was conducted. During the investigation, the statement of PW2 Bharat Lal and PW3 Rakesh, injured were recorded. The nature of injury on the person of PW3 was opined to be grievous. On 27 th March, 2005 both the Appellants were arrested from their house. A knife was recovered pursuant to the disclosure statement Ex. PW1/G-1 of Appellant Ajay Pal which was sent for serological examination. On completion of investigation, a charge-sheet was filed. After recording of the prosecution evidence, statements of the accused, the Appellants were convicted for offences punishable under Sections 307/34 IPC. Appellant Ajay Pal was sentenced to undergo Rigorous Imprisonment for a period of five years and a fine of 5000/- and in default of payment of fine to further undergo simple Imprisonment for six months. The Appellant Ravi Kumar was sentenced to undergo Rigorous Imprisonment for a period of 3 years with a fine of 5000/- and in default of payment to further undergo simple imprisonment for a period of six months. This judgment of conviction and order on sentence is impugned in the present appeals.

(2.) Learned counsel for the Appellants contends that PW1 Deepak and PW2 Bharat Lal are not eye-witnesses to the incident because PW3 Rakesh the injured in his cross-examination has stated that when the incident took place both of them had left the place and came back after 10-15 minutes. This is corroborated by the fact that the clothes of PW1 & PW2 were not bloodstained and thus were not seized and sent to the CFSL. PW8, Dr. R.N. Dass C.M.O. at LBS Hospital in his cross-examination has stated that when the injured reached the hospital on 26 th March, 2005 at about 3:45 P.M. he was naked. That shows that PW1 and PW2 were not present when the incident took place and they took him subsequently after sometime to the hospital. The factum of the injured being brought by PW1 to the hospital mentioned in the MLC only shows that PW1 took him to the hospital and not that he was an eye-witness to the incident. It is contended that both PW1 & PW2 in their cross-examination have denied having witnessed the arrest, disclosure or the recovery and deposed that they have been made to sign all the memos in the police station and thus the version of the prosecution is not true. As per the pointing out/recovery memo Ex.PW1/J and the testimony of the witnesses, it is stated that the knife was recovered from the drain and was mud-stained. Thus there was no possibility of blood being present on the knife. However, the CFSL Report Ex. PW 7/E opined that the knife was blood-stained which is hence not reliable. Moreover, though the knife was mud-stained, Ex.PW1/H sketch of the knife, allegedly prepared on the spot does not bear any mudstains. The conduct of the Appellants in leaving the motorcycle on the spot and running on foot is highly improbable, as they would have used the motorcycle for escaping than leaving it on the spot and running away on foot. There is no motive attributed to the Appellants by the prosecution however the defence has suggested the motive for false implication at the instance of one Dinesh through his friends Rakesh, Deepak etc. Further, despite the area being crowded, no public witnesses were associated during investigation by the police. The statement of PW 3, the injured was recorded belatedly. Thus, in view of the discrepant testimony of the witnesses and faulty investigation, the Appellants are entitled to the benefit of doubt and hence liable to be acquitted.

(3.) Per contra, learned APP for the State contends that the incident occurred at about 2:45 P.M. on the 26 th March, 2005. The MLC Ex. PW8/A shows the arrival of the injured at 3:45 P.M. on 26 th March, 2005 and was admitted by PW1 in the hospital. Moreover, PW1 was living in the neighbourhood of the injured PW3 and being Holy, they were celebrating it together. Thus, PW1 was a natural witness to the incident. The FIR was registered on the statement of Deepak PW1 and Appellant Ajay Pal has been named in the statement Ex.PW1/A. Presence of Ajay Pal?s brother is also mentioned in Ex.PW1/A though he is not named. The mere fact that the clothes of PW1 and PW2 were not blood-stained is no ground to arrive at the conclusion that they were not present at the spot at the time when incident took place and hence were not the eye-witnesses. PW 2 has categorically stated that the Appellants were arrested in his presence and has also supported the recovery of knife from the drain at the instance of Appellant Ajay Pal. PW1 and PW2 in their statements have stated that when they went to urinate at the drain which was at a slope, they could see the injured and the Appellants above the middle portion of their body. Though, PW3 could not see them but PW1 and PW2 could witness the incident and soon they reached at the spot and removed the injured to the hospital. PW1, PW2, and PW7 have stated that the knife was blood-stained and had some mud on it. PW7 have also stated that along with mud-stain there were some stains of blood on the knife. PW7 has not been cross-examined on the aspect of absence of mud on the sketch of the knife Ex. PW1/H and thus the same cannot be used against the prosecution. The motorcycle which was seized from the spot belonged to the Appellants which proves the presence of the Appellants at the spot. As regards the clothes of the injured, the investigating officer PW7 moved an application to the C.M.M., LBS Hospital vide Ex. PW7/DA1. However, it was replied that as per the records available in the causality i.e. valuable things book of CM1 and CM2 available with staff nurse on duty, no clothes of the abovementioned patient if he was wearing any were sealed at LBS Hospital. The testimony of PW3, injured witness is further corroborated by the testimony of other eye-witnesses, the medical evidence, forensic evidence and the recovery of knife i.e. the weapon of offence which is connected to the injuries caused, both by the opinion of PW9 the doctor and through identification by the witnesses. There is nothing unnatural in the conduct of the prosecution witnesses. The prosecution has proved beyond doubt. Thus, there is no merit in the contentions raised by the learned counsel for the Appellants and the appeals are liable to be dismissed.