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Kusum Goswami Vs. Mukhtiar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 23 of 1966
Judge
Reported inILR1970Delhi77
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 439(4)
AppellantKusum Goswami
RespondentMukhtiar Singh and ors.
Advocates: R.K. Garg,; S.C. Aggarwal,; B.B. Lal,;
Cases Referred and K. Chinnaswumy Reddy v. State of Andhra Preadesh and
Excerpt:
.....the prosecution was in the hands of an experienced public prosecutor like mr. in this statement, public witness raghunath sharma clearly implicated both the accused as the assailants. ) in which the name of shri kishan accused had been clearly mentioned. the order of acquittal passed in the case of accused shri kishan is thereforee clearly un-assailable and could nto have been interfered with even in appeal filed by the state. this clearly shows that he is a type of witness who can be made to say anything. garg complained that the evidence of dr. once it is held that the police had prepared a false document like the first information report which in a case of murder is a document of primary importance, the court is bound to view the entire course of investigation with suspicion. (19) i..........had been recorded on the basis of the statement exhibit p.a. made by shri raghunath sharma (public witness i), raghunath had seen both the accused persons stabbing the deceased with knives. raghunath stated that he had gone to bhola nath nagar to meet the parents-in-law of his brother who were residing there. he saw both the accused who were already known to him, rapidly going ahead of him. he then saw both of them taking out knives from the pockets of their trousers and stabbing the deceased whose name he came to know later on, near the house of one raj kishan resident of that street. after giving stab wounds on the fore-head and other parts of the body of the deceased, both the accused made good their escape taking away the knives with them. he further stated that after the.....
Judgment:

Hardyal Hardy, J.

(1) This criminal revision is directed against an order made by an Addl. Sessions Judge on 16-8-1966 whereby he acquitted Mukhtiar Singh and Shri Kishan who were charged with the murder of Shri Harish Chander Goswami, a teacher in Babu Ram Government Higher Secondery School Delhi-Shahdara in the morning shift. The two accused were students in the said school. The prosecution case against the accused was that on 29-11-1965 at about 12-45 P.M. they stabbed the deceased with knives while he was passing through Gurdwarawali Gali Shahdara and that as a result of the stab-wounds he died in the Civil Hospital Shahdara at about 1 -15 P.M. on the same day. Dr. G.S. Mittal who conducted the postmortem examination of the deceased in the morning of 30-11-1965 found four stab-wounds on his body, one on the right side of his fore-head, one on the back of his right shoulder, one on his right thigh and the fourth on the back of his chest left side. According to Dr. Mittal, three of the wounds, excepting the one which was on the thigh, were sufficient to cause death in the ordinary course of nature individually as well as collectively.

(2) According to the First information report which the prosecution alleged had been recorded on the basis of the statement Exhibit P.A. made by Shri Raghunath Sharma (Public Witness I), Raghunath had seen both the accused persons stabbing the deceased with knives. Raghunath stated that he had gone to Bhola Nath Nagar to meet the parents-in-law of his brother who were residing there. He saw both the accused who were already known to him, rapidly going ahead of him. He then saw both of them taking out knives from the pockets of their trousers and stabbing the deceased whose name he came to know later on, near the house of one Raj Kishan resident of that street. After giving stab wounds on the fore-head and other parts of the body of the deceased, both the accused made good their escape taking away the knives with them. He further stated that after the accused had decamped, he with the help of small children who had collected there, put the injured person on the cto and took him to the Civil Hospital Shahdara. Soon thereafter Ram Narain Shastri, Kanhaiya Lal and Virender Kumar, all teachers in Babu Ram Government Higher Secondary School came to the spot. One of them namely, Ram Narian Shastri went to inform the Principal of the shool while the other two went to the hospital to call the doctor. But since the condition of the victim was deteriorating Raghunath removed him to the Civil Hospital before the return of any of the teachers to the spot. At about 1.15 P. M. Shri Harish Chander Goswami was declared dead.

(3) The prosecution further alleged that soon after the receipt of the information Shri Pyare Lal A.S.I. reached the hospital and recorded the statement of Raghunath (Ex. P.A.) and on the basis of that statement gto the case registered against the two accused persons for an offence under section 302 Indian Penal Code . In the Court of Session the charge was amended and an additional charge under section 302 read with section 34 Indian Penal Code . was also added. Both the accused pleaded net guilty. Accused Shri Kishan in his statement under section 342 Criminal Procedure Code stated that he had been involved in the case at the instance of his uncle's son Dal Chand who was a friend of the Station House Officer Shahdara and was inimically disposed towards him. The defense of accused Mukhtiar Singh was that the case aginst him was due to some mis-understanding.

(4) The prosecution examined only one eye-witness namely, Raghunath Sharma (Public Witness I). Public Witness s Kamlesh Chander, Gurnam Singh, Chander Parkash and Muneshwar, students of the Babu Ram Government Higher Secondary School who, according to the prosecution, had seen the two accused running away from the place of occurrence with knives in their hards were given up as having been won over. The case thereforee mainly rested on the evidence of Public Witness Raghunath Sharma who named accused Mukhtiar Singh as the only person who had inflicted fatal injuries on the deceased. His evidence has been rejected by the trial Court even against Mukhtiar Singh for reasons to which I shall presently refer. The other evidence against the accused related to the recovery of knife from the possession of Mukhtiar Singh, blood-stained trousers from the person of Shri Kishan and a blood-stained bush-shirt from the person of Mukhtiar Singh. The evidence of recovery has also been dis-believed by the trial court and its finding on that point has nto been attacked before me by Mr. R. K. Garg learned counsel for the petitioner. As a result, both the accused have been acquitted. In the revision filed by the wife of the deceased the order of acquittal has been attacked as manifestly unjust and preverse.

(5) Mr. Garg did nto dispute that there were limitations on the powers of this Court to set aside a finding of acquittal in revision at the instance of a private party when the State had nto chosen to file an appeal. He however submitted that this was an exceptional case of glaring defect in procedure which had resulted in flagrant mis-carriage of justice. He argued that the Public Prosecutor had given up material witnesses like Kamlesh Chander.. Gurnam Singh, Muneshwar and Chander Parkash who had seen the two accused running away from the scene of occurrence with knives in their hands after inflicting injuries on the person of the deceased on the fictitious plea that they had been won over by the accused. Mr. Garg contended that there had been no fair trial at all. He also contended that once it was found that there had been no fair trial the High Court had nto only jurisdiction under section 439(4) of the Code of Cirminal Procedure., but it was its duty to order a re-trial.

(6) The question of High Court's jurisdiction in revision to set aside an order of acquittal at the instance of a private party is no longer in doubt and is finally settled by three decisions of the Supreme Court in (i) D. Stephens v. Nosibolla, Jogendrantuh Jha and others v. Shri Polai Lal bids was and K. Chinnaswumy Reddy v. State of Andhra Preadesh and another. In all these cases it has been held that such jurisdiction is nto to be lightly exercised against an order of acquittal which has nto been challenged in appeal under section 417 Criminal Procedure Code by the State. It can only be exercised in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of a gross mis-carriage of justice. Mr. Garg submitted that there could nto be a more glaring instance of manifest illegality than had been revealed by four material witnesses having been given up by the Public Procecutor without any justification. It is true that these witnesses were nto eye-witnesses to the crime in the sense that they had nto seen the accused inflicting injuries on the deceased, but their evidence was to the effect that they knew both the accused and had seen them running away from the scene of offence carrying knives in their hands immediately after the occurrence. This was a case in which murder had been committed in broad day light and the question before the trial court was as to whether the two accused Mukhtiar Singh and Shri Kishan were concerned with it in any manner. The circumstance that they were both seen together running away from the scene of offence with knives in their hands immediatey after the offence was committed, had obviously an important bearing on the question of their guilt. In the circumstances, it was the duty of the Public Prosecutor to have examined these witnesses unless there was some material on record to show that the witnesses would nto speak the truth.

(7) The contention urged by Mr. Garg is nto entirely without substance. Mr. Bipin Behari Lal, counsel for Mukhtiar Singh, however tried to meet the argument on the basis of the Supreme Court's judgment in Darya Singh and others v. State of Punjab and submitted that in a murder case it was primarily for the Public Prosecutor to decide which witness he should examine in order to un-fold his story. Mr. Lal conceded that the Prosecutor was required to act fairly and honestly and must never adopt the device of keeping back from the Court material witnesses, but he submitted that the benefit of a material witness having been kept back from the Court should rather go to the accused than to the prosecution.

(8) It is true that the Supreme Court's observations were made in a case in which some eye-withesses were with-held by the Prosecutor and an objection to that course was raised on behalf of the accused. But I do nto suppose their Lordships were laying down any such rule as was contended by Mr. Bipin Behari Lal. The paramount consideration in my opinion is nto whether the benefit of the rule should go to the accused or to the prosecution. What is material is that the prosecutor should act fairly and honestly as his duty is to assist the Court in reaching a proper conclusion in regard to the case which is brought before it for trial. Were it nto for the fact that in the instant case the conduct of the prosecution was in the hands of an experienced Public Prosecutor like Mr. Damodar Das, I would have felt the least hesitation in holding that these four witnesses should nto have been given up. As it is, it is legitimate to assume that there was material before the learned Public Prosecutor to come to the conclusion that the witnesses had been won over and as such they would have damaged the prosecution case still further if they were examined at the trial. It is incontrovertible that the selection of witnesses has necessarily to be left to the Public Prosecutor who has the carriage of the prosecution in his hands and his judgment cannto be assailed unless there is material to show that he did nto act fairly and honestly. I cannto thereforee accept the argument of Mr. Garg that there has been any grave error of procedure in this case which calls for this Court's intervention in revision.

(9) The next contention urged by Mr. Garg related to the evidence of Raghunath Sharma (Public Witness 1). Mr. Garg argued that the witness had fully supported the prosecution case against accused Mukhtiar Singh. He was the first person to arrive at the scene of occurrence and it was on the basis of the statement made by him that the First information report (Exhibit P.A./2) was recorded. He had no animus against the accused. Even if thereforee he had nto supported the prosecution case against accused Shri Kishan his evidence could be safely accepted against accused Mukhtiar Singh. If this were about all to be said against the evidence of Public Witness Raghunath one would have perhaps been inclined to agree with Mr. Garg as it is nto un-common for witnesses to add in their statement before the police the name of an innocent person along with the real culprits or to omit the name of one or more of guilty persons in the course of their evidence at the trial. In such circumstances, it becomes the duty of the Court to separate the chaff from the grain and to discover the truth.

(10) In the present case however the task of appreciation of evidence appears to me to have been performed by the learned trial Judge in a manner that evokes admiration and I can find no justification to differ from the conclusion reached by him.

(11) The prosecution started with the allegation that Public Witness Raghunath was the first person whose statement was recorded by A.S.I. Pyare Lal, immediately after he reached the scene of occurrence and Exhibit P. A. was put forward as the original statement recorded by him. In this statement, Public Witness Raghunath Sharma clearly implicated both the accused as the assailants. The prosecution further alleged that the F.I.R. (Exhibit P.A./2) which was recorded by Gurmeet Singh (Public Witness 19) correctly reproduced the statement Exhibit P.A./2. It was however demonstrated during the course of cross-examination of Gurmeet Singh that Exhibit P. A./2 contained obvious inter-polations and alterations. Gurmeet Singh admitted in his cross-examination that according to the rules, out of three carbon copies of the F.I.R. one is required to be sent to the Magistrate having jurisdiction over the area in which the offence has been committed, the second goes to the complainant and the third goes to the Deputy Inspector-General of Police. The defense was in a position to produce a copy of the F.LR. (Exhibit D. A.) which was a carbon copy of Exhibit P.A./2 and showed serious interpolations. The defense made an attempt to secure the copy of the F.I.R. that had been sent to the Sub-Divisional Magistrate. Shri Sat Narain, Sub-Divisional Magistrate, who was examined is a witness. however slated that a copy of the F.I.R. was no doubt received in his office but the Same was no longer traceable. There was no evidence that any copy of the F.I.R. was given to the ccmplainant. The only copy of the F.I.R. which was thereforee available was Exhibit D.A. A mere look at Exhibit D.A. showed that it contained interpolations and alterations. Public Witness Gurmeet Singh was constrained to admit in cross-examination that the effect of those interpolations and alterations was to change the singular verb into plural in the F.I.R. A careful exmaination of these changes also made it clear that originally the name of Mukhtiar Singh alone was there in the F.I.R. and it was by later changes that the name of Shri Kishan accused was introduced therein.

(12) Pw Gurmeet Singh tried to explain away the discrepancies by staling that while comparing the F.I.R. with Exhibit P.A. he found certain mistakes that had occurred inadvertently in the recording of the F.I.R. and that he thereforee corrected those mistakes. This Explanationn will decieve no one and has been rightly dis-believed by the learned trial Judge. Had this been the case, Gurmeet Singh would have made a note of these changes in Exhibit P.A./3, 'Ka.rvai-az-thana' (proceedings at the police station) which is in his hand or he would have made a mention of this fact in the Daily diary or made a report to that effect to to the Investigation Officer. The obvious conculsion is that the Explanationn given by him is nto correct and that these changes were made in Exhibit P.A./2 and were in turn reflected in Exhibit D.A. because the name of Shri Kishan accused was attempted to be introduced at a later stage. The other inference is that Exhibits P.A./2 and D.A., as they originally existed, were nto in conformity with Exhibit P.A. and since these documents as they are now, are in conformity with Exhibit P.A. the later statement itself must have been prepared semetime afterwards. Exhibit P.. . . .therefore cannto be regarded as the actual statement of Public Witness Raghunath which he made to A.S.I. Pyare Lal at the hospital and which according to him contained the name of Mukhatiar Singh only as the murderer of Shri Harish Chandar. Public Witness Raghunath himself stated at the trial that the statement Exhibit P.A. was written en the third day after the occurrence and his signatures on its were obtained at the police station under the pretext that his former statement was smcewhat defective. He further deposed that he never gave the name of Shri Kishan as one of the accused in this case. The Public Prosecutor obtained permission of the trial Court to crossexamine this witness on this point but the witness stuck to his statement and did nto at all support the case of the prosecution against accused Shri Kishan. statement which he made at the police station.

(13) Mr. Garg repeated this very contention before me and submitted that the authenticity of Exhibit P.A. as being the first statement made by Public Witness Raghunath was fully established by the Inquestreport (Exhibit P.B.) in which the name of Shri Kishan accused had been clearly mentioned. Mr. Garg argued that Exhibit P.B. was also signed by Raghurath and was a more or less contemporaneous record of events with the statement Exhibit P.A.

(14) In my opinion, even this is nto of much assistance to Mr. Garg's argument. Public Witness Raghunath stated on oath that the porlion of Exhibit P.B. containing the name of Shri Kishan was nto read over to him and went on to add that the document Exhibit P.B. was nto at all read over to him at any time during the investigation. Whatever may be the truth the fact remains that so far as accused Shri Kishan is concerned neither Exhibit P.A. nor Exhibit P.B. can be treated as substantive evidence and when Public Witness Raghunath does nto support the case of the prosecution against him no advantage could be derived by the prosecution from the fact that his name was mentioned in these two documents. The order of acquittal passed in the case of accused Shri Kishan is thereforee clearly un-assailable and could nto have been interfered with even in appeal filed by the State.

(15) This brings me to the case of Mukhtiar Singh. I have already said the evidence regarding recovery has been rejected by the trial court. The case against him thereforee entirely rests on the testimony of Public Witness Raghunath. The learned trial Judge has expressed grave doubts about the varacity of this witness and I find myself in agreement with his view. Public Witness Raghunath on his own showing did nto implicate accused Shri Kishan in the crime in the first statement that he made to the police and yet three days after the occurrence he was prepared to sign and did sign the statement Exhibit P.A. which fully implicated that accused. He also signed the Inquest report (Exhibit P. B.) which mentioned accused Shri Kishan as one of the assailants. This clearly shows that he is a type of witness who can be made to say anything. He admitted that as a sportsman he often used to visit Babii Ram Government Higher Secondary School for sports. On the day of the occurrence he had no particular reason to be present in that locality. He does nto belong to that locality. On his own showing he was on his way from Bholanath Nagar. As such he was only a chance-witness. He admitted that his younger brother had a quarrel with accused Mukhtiar Singh sometime before the incident and that in that connection he had an altercation with his father after which they ceased to be on speaking terms. All this may nto be sufficient for the purpose of holding that there was any serious enmity between him and accused Mukhtiar Singh, but it does establish his interest in some of the teachers in that school and his bias against accused Mukhtiar Singh.

(16) The occurrence took place in a congested locality and yet strangely enough nto a single witness from the locality was examined in the case. One other circumstance that weighed with the learned trial Judge in rejecting the testimony of Public Witness Raghunath lay in the fact that according to this witness all the four injuries were inflicated by accused Mukhtiar Singh. Dr. G.S. Mittal was however of the opinion that two knives were used in the stabbing of the deceased. According to him, injuries 2 and 3 only could be caused with the knife Exhibit P.I. The other two injuries on the fore-head and on the back of the chest of the deceased could nto be caused by the knife Exhibit P.I. Mr. Garg complained that the evidence of Dr. Mittal had been mis-read by the learned trial Judge and that the witnesss had nto made any categorical statement on this point.

(17) It appears to me that Mr. Garg is right in his criticism. The record shows that after the witness was cross-examined he volunteered to make some further statement stating that certain things had nto yet come to the knowledge of the court. The witness was thereupon allowed to make a further statement wherein he stated:

'Jthink that there is more than one weapon of offence in this case because there are different dimensions of the wounds found on the dead body i.e. there are two sets of wounds. Injuries No. 1 and 4 are two inches long and the injuries No.2 and 3 are 9/10 inch and 1-2/10 inch in length. So injuries No. 1 and 4 appear to have been caused by a pointed and cutting weapon with a broader blade about 2' in width'.

(18) The witness had previously stated that all the four injuries were caused by a pointed and cutting weapon. There is hardly anything in the description and size of the wounds from which the inference which the witness sought to draw could be drawn. It is difficult how the width of blade of the weapon could bejudged merely from the length of the injuries. The reason given by Dr. Mittal thereforee does nto seem to be at all convincing. But even if one were inclined to reject this particular argument of the learned trial Judge, can it in any way improve the quality of the evidence of Public Witness Raghunath I am afraid no, especially when one had to contend against the stubborn fact that the integrity of police investigation itself was seriously in doubt in this case. Once it is held that the police had prepared a false document like the First information report which in a case of murder is a document of primary importance, the court is bound to view the entire course of investigation with suspicion.

(19) I am thereforee in agreement with the learned trial Judge that the prosecution had failed to bring home the offence to the accused beyond reasonable doubt. The order of acquittal is accordingly up-held and the revision petition is dismissed.

(20) While parting with the case, I must express my sense of horror and dismay that a murder committed in broad day light in a congested locality like Shahdara should have gone un-punished. The responsibility for this lamentable result lies entirely on the shoulders of the investigating agency concerned with this case, I only hope that after the decision of the case by the trial Court on 16-8-1966 the attention of the District Magistrate was drawn to what had happened and severe action was taken against the officer or officers concerned. But if by any chance no such action has so far been taken against them, I direct that a copy of this order be sent to the leanred District Magistrate for taking such action as may be deemed fit and proper by him.


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