CRL.A./73/2009 of DALIP KUMAR @ GUDAR Vs THE STATE

THE HIGH COURT OF DELHI AT NEW DELHI

%Judgment delivered on: 05.11.2012

+CRL. 72/2009SURESH PEHLWAN@ SURESH BASOYA AND ANR... Appellants- versus -STATE OF DELHI... RespondentAND+CRL. 73/2009DALIP KUMAR @ GUDAR... Appellant- versus -THE STATE... RespondentAdvocates who appeared in this case:For the Appellants: Mr Ajay VermaFor the Respondent: Ms Richa Kapur

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMEDHON'BLE MS JUSTICE VEENA BIRBAL

JUDGMENT

BADAR DURREZ AHMED, J

1.These two appeals are being decided together as they are directed againstthe same judgment and order on the point of sentence. The judgment dated11.11.2008 delivered by the Additional Sessions Judge-01, South, Patiala House

Courts, New Delhi in Sessions Case No. 203/2006 arising out of FIR 225/2003registered at Police Station Kotla Mubarak Pur, under Sections 302/120B/34IPC and Sections 25/27 of the Arms Act, 1959 is under challenge in theseappeals.

2.By virtue of the impugned judgment dated 11.11.2008, the appellantsSuresh Pehlwan @ Suresh Basoya, Sushil Choudhary @ Sushil Pehlwan(appellants in Crl. A. No. 72/2009) and Dalip Kumar @ Gudar (appellant in Crl.A. No. 73/2009) have been convicted under Section 302/34 IPC.AppellantSuresh Pehlwan and Sushil Choudhary have also been convicted under Section25 of the Arms Act, 1959. Insofar as the accused Lekhraj is concerned, he wasacquitted of the charges under Sections 120B/302/34 IPC. The presentappellants had also been charged under Section 120B, but they have also beenacquitted under that Section but have been convicted, as mentioned above,under Section 302 read with Section 34 IPC. The appellants are also impugningthe order on the point of sentence which was pronounced on 19.11.2008,whereby the three appellants were sentenced to life imprisonment forcommission of the offence punishable under Section 302/34 IPC and they werealso directed to pay fine of ` 10,000/- each, in default whereof, they wererequired to undergo simple imprisonment for nine months each. Insofar as theappellants Suresh Pehlwan @ Suresh Basoya, Sushil Choudhary @ Sushil

CRL. Nos. 72/2009&73/2009

Pehlwan are concerned, they were sentenced to undergo rigorous imprisonment

for two years each with fine of ` 1,000/- each, in default whereof, they wererequired to undergo additional simple imprisonment for two months.Thesentences of imprisonment awarded to Suresh Pehlwan @ Suresh Basoya,Sushil Choudhary @ Sushil Pehlwan for the offences under the IPC and theArms Act were directed to run concurrently.

3.The charges were framed on 24.11.2003.The four accused, namely,Suresh Pehlwan, Dalip Kumar, Sushil Choudhary and Lekhraj were, inter alia,charged as under:-

“That on 31.5.03 at about 12 noon at the corner of house no. 59 andhouse no. 47 Housing Society NDMC Part I near Mother Dairy ,NewDelhi within the jurisdiction of PS K.M. Pur in prosecution of thecommon object of the conspiracy entered by you to commit the murderof deceased Surinder Gupta committed murder of Surinder Gupta byfiring two shots by Sushil Pahlwan with the country made pistol andgiving number of knives blows by accused Suresh Pahlwan and therebycommitted an offence punishable under section 302 read with 120 ofUPC and within my cognizance.”

Sushil Choudhary @ Sushil Pehlwan was separately charged under Section120B IPC as also under Sections 25 and 27 of the Arms Act. Suresh Pehlwanwas similarly also charged of the offence punishable under Section 120B IPCand the offence punishable under Sections 25 and 27 of the Arms Act, 1959.The appellant Dalip Kumar was also separately charged in respect of theoffence punishable under Section 120B IPC. Insofar as the accused Lekhraj is

CRL. Nos. 72/2009&73/2009

concerned, he was also separately charged of the offence punishable underSection 120B IPC and he was regarded as the mastermind of the conspiracy.

4.All the accused pleaded not guilty to the charges and claimed trial. Theprosecution examined as many as 25 witnesses. Thereafter, the statements ofthe accused under Section 313 of the Criminal Procedure Code, 1973 wererecorded and the defence produced one witness DW1 Raj Kumar.Afterconsidering the evidence on record and the arguments advanced by theprosecution as well as by the defence counsel, the learned Additional SessionsJudge came to the conclusion that the case of conspiracy under Section 120BIPC was not made out at all. As result, the accused Lekhraj was acquitted inentirety inasmuch as he was not present at the scene of the crime. The otherthree accused, who are the appellants herein, were all allegedly present at thescene of the crime and participated in committing the murder of deceasedSurinder Gupta. Consequently, the learned Additional Sessions Judge came tothe conclusion that the three appellants were guilty of the offence punishableunder Section 302 read with Section 34 IPC. They were, however, acquitted ofthe charge under Section 120B IPC. They were also acquitted of the chargeunder Section 27 of the Arms Act.However, Suresh Pehlwan and SushilChoudhary were convicted under Section 25 of the Arms Act.All the threeappellants were awarded the punishments as already indicated above.

CRL. Nos. 72/2009&73/2009

5.The prosecution case is that on 31.05.2003 at about 12 noon when thedeceased Surinder Gupta was going somewhere in his vehicle, Suresh Pehlwan,Sushil Choudhary and Dalip Kumar had heated conversation with thedeceased Surinder Gupta on the question of some money transaction and theydragged him out of the car.It is then the prosecution case that SushilChoudhary took out country-made pistol from beneath his shirt and fired twiceat Surinder Kumar Gupta, due to which Surinder Kumar Gupta fell down.Thereupon, Dalip Kumar caught hold of Surinder Kumar Gupta and SureshPehlwan assaulted Surinder Kumar Gupta and gave him multiple knife blows.All the three appellants, according to the prosecution, left Surinder Gupta on theroad, thinking that he was dead. Thereafter, people arrived at the scene and theinjured Surinder Kumar Gupta was taken to hospital (All India Institute ofMedical Sciences), where he later succumbed to his injuries. It is the case forthe prosecution that the injured Surinder Gupta was taken to the All IndiaInstitute of Medical Sciences in his own Honda car, which was driven by PW1Ashok Chowdhary, who was accompanied, in the front seat, by DW1 RajKumar.It is also the prosecution case that PW14 Subodh Kumar saw theincident and was an eyewitness of the incident. It may be pointed out, at theoutset, that the entire case revolves around the testimonies of PW14 SubodhKumar, PW1 Ashok Chowdhary and DW1 Raj Kumar.6.Police action in the case began with the duty constable Narender Kumargiving the information on 31.05.2003 at about 12:45 pm vide DD No. 8-A thatone Surinder Gupta, son of Rajpal Gupta, resident of 47, Housing Society,NDSE-I, New Delhi was admitted to hospital after being shot. Sub-InspectorAnil Kumar along with Constable Kishore Kumar went to the hospital andobtained the MLC Exhibit PW15/A in respect of the injured Surinder KumarGupta in which the doctor had opined that the nature of injuries was dangerousand there were fire arm injuries as well as stab injuries and the doctor had alsostated that the injured was unfit for statement and that he had been admitted tothe casualty ward.

7.In the hospital, PW20 Sub-Inspector Anil Kumar recorded the statementof the complainant PW1 Ashok Kumar Chowdhary, who stated that at about 12noon he was in his office at H-58/59, South Extension Part-I. At that point oftime, there was hue and cry outside that Surinder Gupta had been shot. Hefurther stated that Surinder Gupta resided in front of his building in flat No. 47,Housing Society, NDSE-I. He further stated that he knew Surinder Gupta well.On hearing the voices outside, Ashok Chowdhary immediately went out and hefound that about 100 feet away from his office Surinder Gupta was lying injuredon the road and that he was bleeding from his head and body. He further stated

that Surinder Gupta’s car (Honda City No. DL5CP 0001) was also parked there.He further stated that he immediately ran towards Surinder Gupta and afterreaching he spot with the help of about 4-5 persons, he lifted Surinder Guptaand placed him in Surinder Gupta’s car in the rear seat. Thereafter, one RajKumar, who was known to Ashok Chowdhary, who was with him in his office,sat beside Ashok Chowdhary, who drove the said car to AIIMS. This statement(Exhibit PW5/A) was sent along with the ruqqa Exhibit PW20/A by the saidPW20 Sub-Inspector Anil Kumar to the police station which was recorded asDD 8-A (Exhibit PW9/A) on the basis of which the FIR No. 225/2003 (ExhibitPW9/B) was registered.

8.Thereafter, the said PW20 Sub-Inspector Anil Kumar went to the spotwhere he found one bullet having blood stains on it lying at the spot, which wasseized by him vide memo Exhibit PW17/A. He also lifted blood stained earthand sample of earth control vide memos Exhibit PW17/B and Exhibit PW17/C.It is also the prosecution case that the said PW20 SI Anil Kumar recorded thestatements of PW7 Narpath Singh and PW6 Om Prakash Gupta, who werepresent at the spot. The statement of PW18 Vinod Gupta (brother of the injuredSurinder Gupta) was also recorded.The statement of PW14 Subodh Kumarwas also recorded by Sub-Inspector Anil Kumar at the spot.

9.Subsequently, Surinder Gupta died at the All India Institute of MedicalSciences, after which the postmortem examination was conducted and the deadbody was handed over to the legal heirs of the deceased.Thereafter, on02.06.2003 onwards, the investigation of the case was taken over by PW25Inspector N. P. Singh, Station House Officer of the police station KotlaMubarakpur.10.PW16 Dr Chitranjan Behra conducted the postmortem examination of thedeceased Surinder Gupta. He found the following ante mortem injuries on thebody of the deceased:-“1.Firearm entry wound of size 1cm x 1cm inverted margin,with abrassion collar of radius 0.8 cm and tattooing around it,present over back of the body, 0.5 cm right to midline, 118 cmabove right heel and 21 cm below nape of neck.On cuttingover the wound, tract was seen which gone through postero-anteriorlystraightpiercingunderlyingsofttissues,backmuscles, vertebral columnatT7-T-8 levelfracturing itassociated with haematoma and lacerating spinal cord at samelevel, then entered to body cavity piercing the diaphragm inmidline tearing the venae cave and descending aorta and finallybullet lodged in diaphragm.

10.PW16 Dr Chitranjan Behra conducted the postmortem examination of thedeceased Surinder Gupta. He found the following ante mortem injuries on thebody of the deceased:-

2.Firearm entry wound of size 2cm x 1cm inverted marginwith tattooing in an area 8cm x 8cm around it, present overupper 1/3[rd]of left forearm on dorso -lateral side. On cuttingover the wound tract was seen which gone through lateral tomedial in obliquely – downwarddirectionpiercingtheunderlyingsofttissues, muscles, fracturing both radius andulna at upper 1/3[rd]associated with haematoma, then exit

through wound of size 2.8 cm x 1.8 cm inverted margin,present over medial side of left forearm at its upper 1/3[rd].

3.Stitched wound of length 3 cm present over scalp in ®postero – parietal region, 1-5 cm right lateral to midline,obliquely placed. Diffuse subscalp haematoma present belowthe wound associated with underlying depressed fracture ofskull bone of size 1cm x 1cm. tear in duramater of length 0.5cm seen below the depressed fracture.

4.Incised looking lacerated wound of size 4.5 cm x 1cmpresent, left parieto – occipital region, 2cm lateral to midline,obliquely placed and was bone deep associated with subscalphaematoma.

5.Stab wound of size 3cm x 0.5 cm with blood oozing outfrom it, bone deep in direction of downward and medially,present over left anterior shoulder, 5cm below tip of leftshoulder.

6.Stab wound of size 2cm x 1cm present over left upperchest, 11 cm above left nipple, 13.5 cm left to midline. Oncutting over the wound, tract was seen which was cavity deepin direction of downward and medially, piercing underneathtissues, muscles, cutting I[st]and 2[nd]anterior ribs, then entered tothoracic cavity, then piercing left middle part of lung,collapsing it associated with haematoma in thoracic cavityabout 1 litre and cut (Superficial) of size 0.5 cm was seen overleft lateral ventricular wall of heart.

7.Incised wound of size 3cm x 0.5 cm, bone deepassociated with haematoma present over left clavicular region,9cm lateral to midline, 15cm above left nipple.

8.Incised wound of size 3cm x 0.5 cm, muscle deepassociated with haematoma present over suprasternal notch,8cm below chin.

9.Incised wound of size 1.8 cm x 0.5 cm, muscle deep,associated with haematoma present over upper left chest, 2cmleft to midline, 9cm below suprasternal notch.

10.Incised wound of size 1.8cm x 0.5 cm, bone deepassociated with haematoma, present over left cheek, 5cmmedial to tragus left ear, 10 cm left to midline, and 5.5 cmbelow lateral margin of left eyebrow.

11.Incised wound of size 3cm x 0.5 cm, muscle deep,associated with blood clot, horizontally placed over left internalneck, just below the left angle of mandible.

12.Incised wound of size 2.5 cm x. 0.5 cm, muscle deep,associated with blood clot, present over middle of left neck,5cm lateral to midline, 5cm below left angle of mandible.

13.Incised wound of size 1.8 cm x 0.5 cm, muscle deep,associated with haematoma present over left side of neck inmiddle, 10 cm lateral to midline, 4cm below left angle ofmandible.

14.Incised wound of size 1.5 cm x 0.5 cm over left side chin,bone deep, associated with haematoma.

15.Incised wound of size 2 cm x 0.5 cm. present over rightupper neck 5cm right to midline, 4 cm below and right to rightchin.”

According to PW16 Dr Chitranjan Behra, the cause of death was as under:-

“Cause of death in this case was shock due to above mentioned, antemortem injuries. All injuries were collectively sufficient to causedeath in ordinary course of nature, however, injury no. 1 and 6 wereindividually sufficient to cause death in ordinary course of nature.Injury no. 1 and 2 caused by firearm, injury no. 3 and 4 caused byblunt force and rest of injuries were caused by sharp edged weapons.All injuries are ante mortem in nature. Time since death wasconsistent with hospital record.”

It should also be pointed out that the said Surinder Gupta was declared dead on31.05.2003 at 3:30 pm. The postmortem report is Exhibit PW16/A.

11.On 02.06.2003, the accused Sushil Choudhary, Suresh Pehlwan and DalipKumar were arrested by the police from the bus stand at Sector-27, Noida onthe pointing out of the witness Vinod Kumar Gupta (PW18). It is alleged thatthey made disclosure statements and that on the basis of the disclosurestatement made by Sushil Choudhary (Exhibit PW14/G), one country madepistol (Exhibit P-1) was recovered at his instance from beneath the bushes in the‘Chick House Park’ near INA Complex. The sketch of the said country madepistol Exhibit P-1 is Exhibit PW14/H.

12.Suresh Pehlwan is also alleged to have made disclosure statementExhibit PW14/M pursuant to which recovery of knife is said to have beenmade from the sand under the ganda nallah pull pilanji. The sketch of the saidknife is Exhibit PW24/C. There was supplementary disclosure statement of04.06.2003 (Exhibit PW24/A) and the recovery of the knife was allegedly madeon the same day.

13.We have already indicated that after completion of the investigation, thechallan was filed and the charges were framed by the Trial Court and the matterproceeded to trial. The result of the trial has also been indicated above.

14.The learned counsel appearing on behalf of the appellants submitted thatthe only witness who tends to support the prosecution case is PW14 SubodhKumar. According to the learned counsel for the appellants, this witness is notan eyewitness at all. His conduct was unnatural and his antecedents were alsosuspect. Consequently, it was submitted that he cannot be relied upon at all. Itwas submitted that PW14 allegedly knew the deceased Surinder Gupta and wasan alleged chance witness. Yet, when the incident took place, he did not comeforward to help Surinder Gupta at all nor did he raise any alarm or call for helpor go to the police station.He merely stood there and saw the crime beingcommitted.After the assailants had left, he is alleged to have helped PW1Ashok Choudhary in lifting the injured Surinder Gupta onto the car. Thereafter,he is alleged to have left on foot to inform the father of the injured SurinderGupta, who resided at their old house at Bhogal, which was about 15-20minutes away (walking distance). Apparently, he stopped on the way at BhanuGarments, which was shop belonging to Surinder Gupta’s brother. But, when,according to him, he reached the said shop, they were aware of the incident.Yet, the said PW14 proceeds towards Bhogal. This conduct of the said PW14Subodh Kumar has been alleged to be unnatural by the learned counsel for theappellants and it is because of this that they seek to discredit and besmirch histestimony.15.It was also contended by the learned counsel for the appellants thatactually it is only PW1 Ashok Choudhary and DW1 Raj Kumar, who were theeye witnesses of the incident, who ought to be believed and not PW14 SubodhKumar. It was contended by the learned counsel for the appellants that PW1Ashok Coudhary is the person who drove the vehicle carrying the injuredSurinder Gupta in the rear seat to the hospital. There is no denying that this facthas been established beyond doubt.Therefore, the presence of PW1 AshokChoudhary cannot be doubted and consequently, his deposition ought to bebelieved.According to the learned counsel for the appellants, PW1 AshokChoudhary categorically stated that he had not seen Subodh Kumar at the spotand that he (PW1 Ashok Choudhary) and one DW1 Raj Kumar had removedSurinder Gupta to AIIMS.According to PW1 Ashok Choudhary, SurinderGupta was assaulted by three individuals whom he could recognize if broughtbefore him. Importantly, PW1 Ashok Choudhary categorically stated that thethree assailants were not present in Court on the date of his deposition meaningthereby that the three appellants who were accused were not the assailants.

16.DW1 Raj Kumar’s testimony also supports the testimony of PW1 AshokChoudhary.Therefore, according to the learned counsel for the appellants,PW1 Ashok Choudhary is credible eyewitness, whereas PW14 Subodh Kumar

is ‘planted eyewitness’. It was further contended that PW14 Subodh Kumardid not go to the hospital with the injured and to cover this up the story of goingto Bhogal was introduced. It was further contended that as per the evidence ofPW9 Head Constable Swaroop Singh and PW20 Sub-Inspector Anil Kumar, thedistance from the place of occurrence and the police station (Kotla MubarakPur) was just 1 to 1-1/2 kilometers. Yet, PW14 did not go to the police stationto inform the police about the incident. It was further submitted by the learnedcounsel for the appellants that PW8 Bhanu Gupta, who is the son of thedeceased Surinder Gupta, did not state in his testimony that PW14 SubodhKumar had come to his shop after the incident.

17.It was also argued by the learned counsel for the appellants that there is adiscrepancy with regard to the time of recording of the statement of PW14Subodh Kumar. According to PW20 sub-Inspector Anil Kumar, the statementof PW14 Subodh Kumar was recorded at the spot. But, PW20 Anil Kumar, asper his own statement, reached the spot at around 2:30 or 3 pm. PW14 SubodhKumar in his testimony stated that he returned to the spot between 1 to 1:30 pmand that between 1:30 to 2 pm he had told the police, for the first time, abouthaving witnessed the occurrence. He stated that he left the spot after about 15-20 minutes. Thus, according to the learned counsel for the appellants, PW14Subodh Kumar’s statement could not have been recorded between 1:30 to 2 pm

inasmuch as PW20 Sub-Inspector Anil Kumar had arrived at the spot around2:30 or 3 pm, by which time, PW14 Subodh Kumar had left the spot. Therefore,the learned counsel for the appellants submitted that not much credence couldbe attached to the testimony of PW14 Subodh Kumar. It was also contendedthat PW14 being chance witness, his testimony had to be examined with careand caution particularly as PW14Subodh Kumar was known to the injuredSurinder Gupta being an ex part-time employee of his. For the proposition thatthe testimonies of chance witnesses, who were related or friends ought to beviewed with suspicion and at least with care and caution, the learned counsel forthe appellants placed reliance on the following three decisions of the SupremeCourt:-

(i)Bahal Singh v. State of Haryana: AIR 1976 SC 2032;

(ii)Shankar Lal v. State of Rajasthan: (2004) 10 SCC 632; and

(iii)Jarnail Singh v. State of Punjab: (2009) 9 SCC 719.

18.In Bahal Singh (supra), the Supreme Court observed as under:-

“If by coincidence or chance person happens to be at the place ofoccurrence at the time it is taking place, he is called chance witness.And if such person happens to be relative or friend of the victim orinimically disposed towards the accused then his being chancewitness is viewed with suspicion.Such piece of evidence is notnecessarily incredible or unbelievable but does require cautious andclose scrutiny.”

19.In Shankar Lal (supra), the Supreme Court observed as under:-

“In this background if we appreciate the evidence of PW-6, we noticethe fact that he is purely chance witness whose presence at the placeof the incident is highly doubtful.His conduct too seems to beunnatural in not informing anyone else in the village until he metKhyali Ram at the village square.”

20.In Jarnail Singh (supra), the Supreme Court observed as under:-

“14.The Court further explained that the expression ‘chancewitness’ is borrowed from countries where every man’s home isconsidered his castle and every one must have an explanation for hispresence elsewhere or in another man’s castle. It is quite unsuitablean expression in country like India where people are less formal andmore casual, at any rate in the matter of explaining their presence.

15.The evidence of chance witness required very cautious andclose scrutiny and chance witness must adequately explain hispresence at the place of occurrence Satbir v. Surat Singh: (1997) 4SCC 192; Harjinder Singh v. State of Gujarat: (2004) 11 SCC 253;Acharaparambath Pradeepan and Anr. v. State of Kerala: (2006)13 SCC 643; and Sarvesh Narain Shukla v. Daroga Singh and Ors.(2007) 13 SCC 360. Deposition of chance witness whose presenceat the place of incident remains doubtful should be discarded videShankarlal v. State of Rajasthan: (2004) 10 SCC 632. Conduct ofthe chance witness, subsequent to the incident may also be taken intoconsideration particularly as to whether he has informed anyone elsein the village about the incident. Vide Thangaiya v. State of TamilNadu: (2005) 9 SCC 650.”

21.On going through the aforesaid three decisions of the Supreme Court, it isapparent that if the chance witness happens to be relative or friend of thevictim or inimically disposed towards the accused, then such chance witnesshas to be viewed with suspicion.At the same time, however, the Supreme

Court cautioned that such piece of evidence was not necessarily incredible orunbelievable but required cautious and close scrutiny. In the present case PW14Subodh Kumar was not relative of Surinder Gupta nor was he friend of his,nor was PW14 Subodh Kumar inimically disposed towards the appellants, atleast, there is no evidence of this. Thus, we feel that there is no occasion inviewing the testimony of PW14 Subodh Kumar with suspicion. Of course,PW14 Subodh Kumar’s testimony has to be considered with caution and mustpass close scrutiny before conviction can be founded upon it.

22.In Shankar Lal (supra), the Supreme Court, on the facts of the casebefore it, came to the conclusion that the evidence of PW6 in that case was notreliable inasmuch as his presence at the place of the incident was highlydoubtful and that his conduct was also unnatural in not informing anyone else inthe village until he met Khyali Ram at the village square. If we consider this inthe backdrop of the factual matrix of the present case, we find that PW14Subodh Kumar, according to his testimony, had gone to inform the family ofSurinder Gupta about the incident.On the way, he had stopped at BhanuGarments and then proceeded to Surinder Gupta’s old house at Bhogal. It isanother matter that when Subodh Kumar reached Bhanu Garments, theinformation of the incident had already been received there. What is to be seenis what the chance witness did.In this case, PW14 Subodh Kumar’s first

reaction was to go and inform the family members and not to keep theinformation with himself. Therefore, PW14 Subodh Kumar’s testimony cannotbe discarded on this ground.

23.Insofar as the decision in Jarnail Singh (supra) is concerned, we findthat the Supreme Court itself noticed that it is quite unsuitable to use theexpression ‘chance witness’ in country like India where the people are lessformal and more casual. As mentioned above, the Supreme Court reiterated thelegal principle that the evidence of chance witness requires cautious and closescrutiny and the chance witness must explain his presence at the place ofoccurrence.It was also pointed out that the conduct of the chance witnesssubsequent to the incident may also be taken into consideration. There is nodenying these legal principles but the question is whether the testimony ofPW14 Subodh Kumar passes the test of cautious and close scrutiny and whetherPW14 Subodh Kumar has adequately explained his presence at the place of theoccurrence as also whether his conduct has been natural or not.These areaspects which we shall examine subsequently in this decision when we considerthe testimony of PW1 in detail.

24.The learned counsel for the appellants also raised the point of an extra-judicial confession having allegedly been made by Sushil Pehlwan to PW18

Vinod Gupta (brother of the deceased Surinder Gupta). However, we need notspend any time on this aspect of the matter. This is so because it is doubtful thatSushil Pehlwan could have made the confession to PW18 Vinod Gupta in themanner alleged by the prosecution. We are, therefore, not placing any relianceon the so-called extra-judicial confession made by Sushil Pehlwan to PW18Vinod Gupta and, therefore, it is not necessary for us to examine thesubmissions made by the learned counsel for the appellants on this aspect of thematter nor is it necessary for us to examine in detail the decision of the SupremeCourt inState of Rajasthan v. Raja Ram: AIR 2003 SC 3601 (1), relating toextra-judicial confession.

25.It was then contended by the learned counsel for the appellants that thepresent case is peculiar one because as many as 5 witnesses were chancewitnesses. According to the appellants PW5 Raj Pal Gupta (who is the father ofthe deceased Surinder Gupta) had overheard the accused talking about theirconspiracy. But, this is no longer relevant inasmuch as the trial court hasalready acquitted all the accused of the charge under Section 120 B. Similar isthe fate of the conversation allegedly overheard by PW13 Viresh Kumar. Withregard to PW14 Subodh Kumar being chance witness, we have already givenour observations above and would discuss this in greater detail, when we arediscussing the testimony of PW14 Subodh Kumar. As regards PW18, Vinod

Kumar Gupta, the allegation that he received the extra-judicial confession bychance, is also not really relevant in view of the fact that we are not placing anyreliance on the so-called extra-judicial confession. The last aspect of chancewhich the learned counsel for the appellants contended was that the accusedwere also arrested by chance.Nothing much turns on this.Thus, thesubmission of the learned counsel for the appellants regarding five instances ofchance being involved in this case does not turn the case either way.

26.The learned counsel for the appellants then argued on the question ofrecoveries. It was argued that the recoveries of the katta (Exhibit P-1) in thepark near INA complex was from an area of public access and, therefore, thesaid recovery cannot be foisted upon Sushil Choudhary. It was also contendedthat the recovery of the knife allegedly at the joint instance of Suresh Pehlwanand Dalip Kumar from beneath the ganda nallah pull pilanji was also from anarea of public access and thoroughfare and, therefore, the same cannot be linkedwith the appellants.Insofar as the recovery of clothes Exhibit PW14/F isconcerned, it was submitted that the same do not, in any manner, advance thecase of the prosecution.

27.It was also submitted that in any event, the katta (Exhibit P-1) has notbeen connected with the offence. This would be apparent from the CFSL report

dated 08.11.2004 (Exhibit P-X), where it is recorded that the individualcharacteristic of striations present on the deformed bullets marked EB-I and EB-2 were insufficient for comparison and opinion as to whether these had beenfired from the country made pistol of .315” bore marked Exhibit F-1 or not.Exhibit EB-1 was the deformed bullet which PW20 Sub-Inspector Anil Kumarfound lying at the spot and Exhibit EB-2 was the bullet which was recoveredfrom the dead body of Surinder Gupta.

28.Therefore, we agree with the submission of the learned counsel for theappellant that the bullets EB-1 and EB-2 have not been connected with the katta(Exhibit P-1). As such, it cannot be said that the katta (Exhibit P-1) which wasused in the commission of the offence of murder of Surinder Gupta. Therefore,the alleged recovery of the same at the instance of Sushil Pehlwan would reallybe of no consequence.

29.The learned counsel for the appellants also submitted that the knife whichwas supposed to contain blood stains was sent for analysis to the ForensicScience Laboratory.The report dated 24.03.2004 (Exhibit P-X) clearlyindicated that blood could not be detected, inter alia, on the said knife (Exhibit11 marked by CFSL).Similarly, no blood was detected on Exhibits 8a, 8b(alleged to be Dalip Kumar’s clothes), Exhibit 9 (alleged to be Suresh

Pehlwan’s T-shirt) and Exhibits 10a, 10b (alleged to be Sushil Choudhary’sclothes). It is, therefore, clear that there is no evidence connecting either theknife or the clothes of the accused to the offence inasmuch as blood could notbe detected thereon. To this extent, the contention of the learned counsel for theappellants is correct that the so-called recoveries have not been connected withthe offence alleged against them.

30.Consequently, the learned counsel for the appellants submitted that whilethe testimonies of PW1 Ashok Chowdhary and DW1 Raj Kumar ought to bebelieved, the testimony of PW14 Subodh Kumar ought to be discarded. The so-called recoveries do not bear any connection with the offence of murder ofSurinder Gupta.The extra-judicial confession cannot be relied upon forconvicting the appellants. Consequently, the appeals ought to be allowed andthe impugned judgment and the order on the point of sentence ought to be setaside.

31.On the other hand, Ms Richa Kapur, appearing on behalf of the State,submitted that it was never the case of the prosecution that PW1 AshokChowdhary and DW1 Raj Kumar were eyewitnesses of the actual assault. Infact, there was not much in the examination-in-chief of PW1 Ashok Chowdharywhich was inconsistent with the police case and, therefore, at that stage, there

was no occasion for having him declared as being hostile.It is onlysubsequently when PW1 Ashok Chowdhary was cross-examined by the defencecounsel that an entirely new story was introduced.The said witnesstransformed himself as an eyewitness of the actual incident of assault and gave aclean chit to the appellants by stating that the assailants were not present inCourt. It is because of this volte face in the stance of PW1 Ashok Chowdharythat it became necessary for the Additional Public Prosecutor to request for anopportunity to cross-examine PW1 Ashok Kumar Chowdhary. Thereafter, hehad been cross-examined by the defence counsel. It was, therefore, contendedby Ms Kapur that PW1 Ashok Chowdhary’s testimony, to the extent it supportsthe prosecution case and corroborates the testimony of PW14 Subodh Kumarshould be accepted and to the extent it runs counter to the prosecution case andsets up an entirely new dimension ought to be discarded. This, according to her,was an exercise which the court could do and ought to do. Therefore, accordingto her, the trial court was entirely correct in basing the conviction on thetestimony of PW14 Subodh Kumar. As regards chance witnesses, the learnedcounsel placed reliance on the following two decisions of the Supreme Court:-

(i)Rana Pratap v. State of Haryana: 1983 (3) SCC 327; and(ii)Gangadhar Behera v. State of Orissa: 2002 (8) SCC 381

32.It would be appropriate to refer to these decisions at this stage itself. In

Rana Pratap (supra), the Supreme Court observed as under:-

“3. There were three eye witnesses. One was the brother of thedeceased and the other two were milk vendor of neighbouringvillage, who was carrying milk to the dairy and vegetable and fruithawker, who was pushing his laden cart along the road. The learnedSessionsJudgeandthelearnedCounseldescribedboththeindependent witnesses as chance witnesses implying thereby that theirevidence was suspicious and their presence at the scene doubtful. Wedo not understand the expression 'chance witnesses'. Murders are notcommitted with previous notice to witnesses; soliciting their presence.If murder is committed in dwelling house, the inmates of the houseare natural witnesses. If murder is committed in brothel, prostitutesand paramours are natural witnesses. If murder is committed in astreet, only passersby will be witnesses. Their evidence cannot bebrushed aside or viewed with suspicion on the ground that that theyare mere chance witnesses'. The expression 'chance witnesses' isborrowed from countries where every man's home is considered hiscastle and every one must have an explanation for his presenceelsewhere or in another man's castle. It is most unsuitable expressionin country whose people are less formal and more casual. To discardthe evidence of street hawkers and street vendors on the ground thatthey are 'chance witnesses' even where murder is committed in streetis to abandon good sense and take too shallow view of theevidence.”

33.In Gangadhar Behera (supra), the Supreme Court observed as under:-

“7.We shall first deal with the contention regarding interestednessof the witnesses for furthering prosecution version. Relationship is ofa factor to affect credibility of witness. It is more often than not thata relation would not conceal actual culprit and make allegationsagainst an innocent person. Foundation has to be laid if plea of falseimplication is made. In such cases, the court has to adopt carefulapproach and analyse evidence to find out whether it is cogent adcredible.

8. In Dalip Singh and Ors. v. The State of Punjab it has been laiddown as under:-

“A witness is normally to be considered independentunless he or she springs from sources which are likely tobe tainted and that usually means unless the witness hascause, such as enmity against the accused, to wish toimplicated him falsely. Ordinarily close relation wouldbe the last to screen the real culprit and falsely implicatean innocent person. It is true, when feelings run high andthere is personal cause for enmity, that there is tendencyto drag in an innocent person against whom witness hasa grudge along with the guilty, but foundation must belaid for such criticism and the mere fact of relationshipfar from being foundation is often sure guarantee oftruth. However, we are not attempting any sweepinggeneralization. Each case must be judged on its own facts.our observations are only made to combat what is so oftenput forward in cases before us as general rule ofprudence. There is no such general rule. Each case mustbe limited to and be governed by its own facts.”12.To the same effect is the decision in State of Punjab v. JagirSingh and Lehna v. State of Haryana. Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by somewitnesses to contend about desirability to throw out entire prosecutioncase. In essence prayer is to apply the principle of “falsus in unofalsus in omnibus” (false in one thing, false in everything). This pleais clearly untenable. Even if major portion of evidence is found to bedeficient, in case residue is sufficient to prove guilt of an accused,notwithstanding acquittal of number of other co-accused persons, hisconviction can be maintained. It is the duty of Court to separate grainfrom chaff. Where chaff can be separated from grain, it would be opento the Court to convict an accused notwithstanding the fact thatevidence has been found to be deficient to prove guilt of other accusedpersons. Falsity of particular material witness or material particularwould not ruin it from the beginning to end. The maxim “falsus in unofalsus in omnibus” has no application in India and the witnessescannot be branded as liar. The maxim “falsus in uno falsus in

omnibus” has not received general acceptance nor has this maximcome to occupy the status of rule of law. It is merely rule of caution.All that it amounts to, is that in such cases testimony may bedisregarded, and not that it must be disregarded. The doctrine merelyinvolves the question of weight of evidence which Court may applyin given set of circumstances, but it is not what may be called ‘amandatory rule of evidence’. (See Nisar Alli v. The State of UttarPradesh. Merely because some of the accused persons have beenacquitted, though evidence against all of them, so far as directtestimony went, was the same does not lead as necessary corollarythat those who have been convicted must also be acquitted. It isalways open to Court to differentiate accused who had beenacquitted from those who were convicted. (See Gurucharan Singh andAnr. v. State of Punjab). The doctrine is dangerous one specially inIndia for if whole body of the testimony were to be rejected, becausewitness was evidently speaking an untruth in some aspect, it is to befeared that administration of criminal justice would come to dead-stop. Witnesses just cannot help in giving embroidery to story,however, true in the main. Therefore, it has to be appraised in eachcase as to what extent the evidence is worthy of acceptance, andmerely because in some respects the Court considers the same to beinsufficient for placing reliance on the testimony of witness, it doesnot necessarily follow as matter of law that it must be disregarded inall respect as well. The evidence has to be shifted with care. Theaforesaid dictum is not sound rule for the reason that one hardlycomes across witness whose evidence does not contain grain ofuntruth or at any rate exaggeration, embroideries or embellishment.(See Sohrab s/o Beli Nayata and Anr. v. The State of MadhyaPradesh)and Ugar Ahir and Ors. v. The State of Bihar. An attempthas to be made to, as noted above, in terms of felicitous metaphor,separate grain from the chaff, truth from falsehood. Where it is notfeasible to separate truth from falsehood, because grain and chaff areinextricably mixed up, and in the process of separation an absolutelynew case has to be reconstructed by divorcing essential detailspresented by the prosecution completely from the context and thebackground against which they are made, the only available course tobe made is to discard the evidence in toto. (See Zwinglee Arielv.State of Madhya Pradesh : AIR1954SC15 and Balaka Singh and Ors.v. The State of Punjab). As observed by this Court in State ofRajasthan v. Smt Kalki and Anr., normal discrepancies in evidenceare those which are due to normal errors of observation, normal errorsof memory due to lapse of time, due to mental disposition such asshock and horror at the time of occurrence and those are always therehowever honest and truthful witness may be. Material discrepanciesare those which are not normal, and not expected of normal person.Courts have to label the category to which discrepancy may becategorized. While normal discrepancies do not corrode the credibilityof party's case, material discrepancies do so. These aspects werehighlighted recently in Krishna Mochi and Ors. v. State of Bihar etc.Accusations have been clearly established against accused-appellantsin the case at hand. The Courts below have categorically indicated thedistinguishing features in evidence so far as acquitted and convictedaccused are concerned.”

34.As can be noticed from the above extracts, in the case of Rana Pratap(supra), the Supreme Court aptly observed that murders are not committed withprevious notice to witnesses soliciting their presence. The Supreme Court alsonoted that the evidence of chance witness cannot be brushed aside or viewedwith suspicion merely because he/ she is chance witness. In this light, it wasargued on behalf of the State that the testimony of PW14 Subodh Kumar cannotbe discarded merely because he happened to be there. We may also point outthat in Rana Pratap (supra), the Supreme Court also observed that every personwho witnesses murder reacts in his own way. Some are stunned, some becomespeechless and stand rooted to the spot, some become hysterical and startwailing, some start shouting for help, others run away to keep themselves as farremoved from the spot as possible and yet others rush to the rescue of the victimand even go to the extent of counter-attacking the assailants. Importantly, the

Supreme Court observed that “everyone reacts in his own special way”. It alsonoted that “there is no set rule of natural reaction”. The Supreme Court alsoobserved that to discard the evidence of witnesses on the ground that they didnot react in any particular manner is to appreciate evidence in whollyunrealistic and unimaginative way. These observations were relied upon by thelearned counsel for the State to counter the submissions made by the learnedcounsel for the appellants with regard to the so-called unnatural conduct ofPW14 Subodh Kumar in not raising any cry for help or in not going to thepolice station or in not rushing forward to help the victim Surinder Gupta. It isobvious that, as observed by the Supreme Court in Rana Pratap (supra), everyperson reacts in different manner. In his own special way. We shall also dealwith the reactions of PW14 Subodh Kumar subsequently.

35.It is also true that in Gangadhar Behera (supra), the Supreme Courtobserved that relationship is not factor which should affect the credibility of awitness and it is more often than not that relative would not conceal the actualculprit and make allegations against an innocent person. The Supreme Court,however, noted that foundation has to be laid if the plea of false implication ismade. It was, therefore, contended by the learned counsel for the State thatmerely because the deceased Surinder Gupta was known to PW14 SubodhKumar does not mean that the credibility of his testimony is dented.The

defence, according to her, has not laid any foundation for the plea of falseimplication. There is no evidence that PW14 Subodh Kumar is inimicallydisposed towards the appellants and would wish to implicate them falsely. Inthe absence of any such factual foundation, the testimony of PW14 SubodhKumar, according to the learned counsel for the State, cannot be brushed asidelightly.She also laid stress on the observations of the Supreme Court withregard to the maxim of “falsus in uno falsus in omnibus”. She stated that theSupreme Court has recognized that this maxim has no application in India and ifa witness makes false statement, he cannot be branded as liar in the entiretestimony and it is the duty of the Court to separate the grain from the chaff andthat, where the chaff can be separated from the grain, it would be open to theCourt to convict an accused notwithstanding the fact that evidence has beenfound to be deficient to prove guilt of other accused persons. Falsity on amaterial particular would not ruin it from the beginning to the end.TheSupreme Court had also observed that the said maxim did not occupy the statusof rule of law and it was merely rule of caution. Consequently, the learnedcounsel for the State submitted that no interference with the impugned judgmentor the order on the point of sentence was called for and that the appeals ought tobe dismissed.

36.In rejoinder, the learned counsel for the appellants reiterated that thetestimonies of PW1 Ashok Chowdhary and DW1 Raj Kumar ought to beconsidered as credible and that of PW14 Subodh Kumar ought to be discardedon the ground of unreliability and that of his unnatural conduct.He placedreliance on three other decisions of the Supreme Court:-

(i)Karuppanna Thevar v. State of Tamil Nadu: AIR 1976 SC 980;

(ii)Surjit Singh v. State of Punjab: AIR 1994 SC 110; and

(iii)State of Haryana v. Ram Singh: AIR 2002 SC 620;

37.In Karuppanna Thevar (supra), the Supreme Court observed as under:-

“11.According to Alagiri Chettiar he and the deceased took theirfood on the 6th evening and thereafter they went to their fields atabout the time when one normally goes to sleep. They took round oftheir respective fields and the case of Alagiri Chettiar is that he andthe deceased kept talking behind thatti near well adjoining the fieldof the deceased. This claim is also highly unnatural. The offence tookplace at about 1 a. m. on the 7th and it is highly improbable that at thathour Alagiri and the deceased would be just chatting idly near thewell. Villagers do chat idly but our attempt in this appeal is to findwhether the view taken by the Sessions Court can be characterised asunreasonable or perverse. Unnatural events also do take place in lifebut when series of unnatural incidents are alleged to have takenplace in quick succession, the case acquires an air of unreality.”

38.In Surjit Singh (supra), the Supreme Court observed as under:-

“The conduct of the witness is highly unnatural. When he has seenone of the appellants inflicting injuries one would expect him to raisean alarm or at least inform the kith and kin of the deceased so that

they can go for the rescue of the victim, which he did not do. From therecord, it does not appear that at least he was examined during theinquest. We do not know when his statement was recorded during thecourse of the next day. On his own showing, he was involved earlierin some cases. In one case, he has stabbed by the deceased and inanother case he himself was the accused for molestation of woman.Therefore, he is of questionable character. However, his conduct ishighly unnatural. Though we cannot call him entirely false witnessbut in the absence of any other corroborating evidence we think it ishighly unsafe to accept his evidence and then convict both theappellants.”

39.In State of Haryana v. Ram Singh (supra), the Supreme Court observed

as under:-

“19.Significantly all disclosures, discoveries and even arrests havebeen made in the presence of three specific persons, namely, BudhRam, Dholu Ram and Atma Ram – no independent witness could befound in the aforesaid context – is it deliberate or is it sheercoincidence – this is where the relevance of the passage from Sarkaron Evidence comes on. The ingenuity devised by the prosecutor knewno bounds – Can it be attributed to be sheer coincidence? Without anyfurther consideration of the matter, one thing can be more or less withcertain amount of conclusiveness be stated that these at least create adoubt or suspicion as to whether the same has been tailor-made or notand in the event of there being such doubt, the benefit must andought to be transposed to the accused persons. The trial Courtaddressed itself on scrutiny of evidence and came to conclusion thatthe evidence available on record is trustworthy but the High Courtacquitted one of the accused persons on the basis of some discrepancybetween the oral testimony and the documentary evidence as noticedfully herein before. The oral testimony thus stands tainted withsuspicion. If that be the case, then there is no other evidence apartfrom the omnipresent Budh Ram and Dholu Ram, who however aretotally interested witnesses. While it is true that legitimacy ofinterested witnesses cannot be discredited in any way nor termed to bea suspect witness but the evidence before being ascribed to be

trustworthy or being capable of creating confidence, the Court has toconsider the same upon proper scrutiny.”

40.The observations of the Supreme Court in Karuppanna Thevar (supra)do not help the appellants. In fact, the Supreme Court observed that unnaturalevents also take place in life and it is only when series of unnatural incidentsare alleged to have taken place in quick succession that the case acquires an airof unreality. The only unnatural event that is alleged in the present case is withregard to the so-called unnatural conduct of PW14 Subodh Kumar. There is noseries of unnatural incidents which could give this case an air of unreality.Therefore, this decision of the Supreme Court does not advance the case of theappellants. On the contrary, it lends credence to the prosecution case even if weconsider the conduct of PW14 Subodh Kumar to be unnatural.This is sobecause the Supreme Court recognized the fact that unnatural events also takeplace in life. As regards Surjit Singh (supra), the observations of the SupremeCourt pertain to the facts of the case before it and the conduct of the witnessbeing highly unnatural. According to the Supreme Court, witnesses could beexpected to raise an alarm or at least to go to the deceased so that they rescuethe victim which, in that case, the witness did not do. In the present case, thesituation is different.PW14 Subodh Kumar, after seeing off the injuredSurinder Gupta in the car driven by PW1 Ashok Chowdhary for hospital,immediately left, though on foot, to inform the family of the injured. Thisconduct is entirely different from the conduct in the fact situation in SurjitSingh (supra). Furthermore, in Surjit Singh (supra), the witness in questionwas earlier involved in criminal cases, where in one case he had been stabbedby the deceased. There was, therefore, an earlier criminal involvement with thevictim of the crime. That is not the position in the facts of the present case. Wewill see that PW14 Subodh Kumar has allegedly been involved in criminalcases, but as per his testimony in cross-examination, in none of those cases theaccused herein are also involved and, in any event, PW14 Subodh Kumar hadbeen acquitted in all those cases.Therefore, the remark that he was ofquestionable character would not squarely cover the case of PW14 SubodhKumar.

41.As regards the observations of the Supreme Court relied upon by theappellants in the case of State of Haryana v. Ram Singh (supra), we do not seeas to how these observations are really relevant for the case at hand or as to howthey advance the case of the appellants. All that the Supreme Court observed isthat even in the case of interested witnesses, their testimonies cannot bediscarded and that the Court has to consider the same upon proper scrutiny. It isobvious that the testimony of PW14 Subodh Kumar would have to be

accordingly considered and scrutinized before conviction can be based uponit.

42.We are, therefore, left to consider the testimonies of the three crucialwitnesses, namely, PW1 Ashok Chowdhary and DW1 Raj Kumar on the oneside and PW14 Subodh Kumar on the other.

43.PW1 Ashok Chowdary in his examination-in-chief stated that his office isat H-58/59, South Extension Part-I, New Delhi. He, however, stated that on31.05.2003 at about 12 noon, he was “standing in front” of the building housinghis office. We may point out straightaway that this statement of PW1 AshokChowdhary was at variance with the statement which he had given to PW20 SIAnil Kumar in the hospital on the basis of which the FIR was registered. In thatstatement, PW1 Ashok Chowdhary had stated that he was inside his office,whereas, in his examination-in-chief, PW1 has stated that he was standing infront of the building which housed his office. This is very material departurewhich, however, was not noticed by the learned APP as he ought to have thenand there requested for examining the said witness as he had turned hostile. Wesay this because if PW1 Ashok Chowdhary was inside the building, he couldnot have seen the actual incident of assault. It is only if he was standing outsidethat he could state that he was an eyewitness of the actual incident of assault.

The intention of this witness to turn his evidence on its head was apparent fromthis statement itself. However, it was missed by the learned APP.

44.PW1 Ashok Chowdhary then goes on to say in his examination-in-chiefthat he heard the sound of bullet shot. Here too, we note that instead of twoshots, he mentioned only one shot. This statement of his is veiled statementinasmuch as he did not indicate as to what he saw but that what he heard. Tothe extent that he heard the shot did not militate against the prosecution case.But, this was the foundation for what he was to say later on in cross-examination by the defence counsel.

45.PW1 Ashok Chowdhary then stated that after hearing the sound of thebullet shot, he looked in the direction from which the noise emanated and sawthat about 20-25 steps away, Surinder Gupta was lying on the road.Threepersons were also seen running from the spot. This part of the testimony that hesaw Surinder Gupta lying on the road is not at variance with what he statedbefore PW20 in the hospital. However, the fact that he had seen three personsrunning from the spot was not so stated in the original statement which formedthe basis of the FIR. We feel that the learned APP ought to have been alertenough to have recognized this departure also but did not do so. Anyhow, thesaid PW1 Ashok Chowdhary, however, stated in his examination-in-chief that

Surinder Gupta was known to him and that he was residing in buildingopposite to his office building. The Honda City vehicle of Surinder Gupta wasalso parked just two steps away from him and that Surinder Gupta was bleeding.He further stated that he and one Raj Kumar removed Surinder Gupta to AIIMShospital in Surinder Gupta’s vehicle and that the injured was got admitted in thesaid hospital. It was further stated that the police came there and recorded hisstatement which he had signed and that the statement which bears his signaturewas Exhibit PW1/A. As such, it is apparent that PW1 Ashok Chowdharyl, inhis examination-in-chief, admitted the statement Exhibit PW1/A.

46.But, it is in his cross-examination, that completely different story hasemerged.In his cross-examination on the part of the defence counsel, PW1Ashok Chowdhary stated that he had seen the deceased Surinder being stabbed.This is the first time that this witness has come up with this story.He nowclaimed to be an eyewitness of the actual incident of assault which was neverthe prosecution case. He elaborated by saying that he had also seen the personwho had fired the shot at Surinder Gupta and had also seen him holding afirearm in his hand. He then states, obviously in response to questions put bythe learned counsel for the defence, that the three persons were in the age groupof 35-40 years.It may be relevant to point out that the accused were muchyounger and mostly in their 20s.This statement of PW1 Ashok Chowdhary

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elicited in cross-examination was essentially directed to disassociate theappellants from the crime.

47.It was then stated by PW1 Ashok Chowdhary in his cross-examinationthat the three persons had escaped from the spot in vehicle. We must contrastthis with his statement in examination-in-chief, where he stated that threepersons had run away from the spot. Here, he states that the three persons leftin vehicle. The Court observation with regard to the demeanor of the witnessis also material, wherein the Court observed as under:-

“witness is taking about some seconds in answering the questionsafter looking to this and that side.”

This also gives an indication that PW1 Ashok Chowdhary was somehow nottelling the truth on this aspect of the matter. Then question was put by thelearned counsel for the defence as to whether PW1 could identify thosepersons? The witness responded by saying that he could identify in case theycame before him.The next question was, were they present in Court?Thewitness answered that the three persons were not present in Court on that date.The obvious implication being that the three accused, namely, the appellantsherein were not the assailants. Then, the effect of Exhibit PW1/A was sought tobe washed away by eliciting reply from PW1 that Exhibit PW1/A was notread over to him at the time he signed it and that whatever he had stated in

Court today was what he had told the police on that occasion. The final nail inthe coffin, according to the defence, were the statements eliciting from PW1Ashok Chowdhary to the effect that he knew Subodh Kumar but that he had notseen Subodh Kumar at the spot.

48.Consequent upon this cross-examination, as the entire story had beenturned on its head by this witness in the course of his cross-examination, thelearned APP requested to cross-examine this witness and the request wasallowed. Thereafter, the learned APP examined PW1 and confronted him withhis statement Exhibit PW1/A etc.

49.What is material from the above discussion is that the manner in whichPW1 Ashok Chowdhary was transformed from witness, who merely helped inplacing the injured Surinder Gupta in the car and thereafter taking him tohospital into witness who actually saw the assailants of Surinder Gupta and bydoing so claiming to be an eyewitness of the actual incident. Once he purportedto become an eyewitness, he gave clean chit to the appellants by stating thatthey were not the assailants.

50.It is in these circumstances that we feel that this witness to the extent hestates that he was an eyewitness of the actual incident, cannot be believed at all.However, to the extent that he heard the shot and helped in taking Surinder

Gupta to hospital along with Raj Kumar cannot be disbelieved inasmuch as it ispart of the prosecution case and has been corroborated not only by DW1 RajKumar (to this extent) and by PW14 Subodh Kumar, again, to this extent.

51.We now come to the testimony of DW1 Raj Kumar. Before we examinethe testimony of DW1 Raj Kumar, it would be necessary for us to point out thatthis witness had earlier been cited as prosecution witness but had beendropped by the prosecution and was picked up by the defence. He was droppedby the prosecution immediately after the testimony of PW1 Ashok Chowdharywas recorded.Since DW1 Raj Kumar was connected with PW1 AshokChowdhary, the prosecution probably felt that he would also turn hostile and,therefore, they dropped him from their list of witnesses. Surely enough, RajKumar was picked up by the defence as their only witness. Essentially, DW1Raj Kumar has only sought to corroborate what has been stated by PW AshokChowdhary in his cross-examination by the defence counsel. In other words, healso stated that he was an eyewitness and that he had seen the assailants whohad given the knife blows as well as who had fired upon the deceased SurinderGupta.He also stated that all the assailants left the spot along with theirweapons in their Maruti car. He also parroted the statement of PW1 that hecould identify the assailants if they were brought before him and that none ofthe assailants were present in Court.Thereby giving clean chit to the

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appellants herein. In this backdrop, it is clear that both PW1 Ashok Chowdharyand DW1 Raj Kumar have converted themselves into eyewitnesses of the actualincident when the prosecution never regarded them as such at any point of time.They were only witnesses to the effect that they saw the injured Surinder Guptalying on the road and that they along with others had helped him onto the rearseat of the car and that PW1 Ashok Chowdhary drove that car along with DW1Raj Kumar at his side to AIIMS hospital to get the injured Surinder Guptaadmitted.

52.Therefore, separating the chaff from the grain, the only grain of truth thatis there in the testimony of these witnesses is to the extent that they had heardthe gun shots and that they had rushed to the spot and found that Surinder Guptawas lying in an injured condition on the road and that they had, with the aid ofothers, placed him on the rear seat of Surinder Gupta’s Honda City car whichwas subsequently driven by PW1 Ashok Chowdhary accompanied by DW1 RajKumar to AIIMS hospital where the injured Surinder Gupta was admitted andwhere Surinder Gupta subsequently died on the same evening on 31.05.2003.

53.We are now left to consider the testimony of PW14 Subodh Kumar. Wehave already indicated parts of his evidence in the foregoing portions of thisjudgment. However, it would not be out of place to refer to his testimony in

greater detail. PW14 Subodh Kumar stated that he knew Surinder Gupta as hehad been working with him on part-time basis. He stated that on 31.05.2003at about 11:45 and 12 noon, he had gone to see Surinder Gupta at his house butbefore he could reach the said house, he saw Surinder Gupta sitting in the car onthe road on the rear of his house. The said Surinder Gupta was talking to theaccused Dalip, Suresh and Sushil. He further stated that when he was about 20feet away from the car of the deceased, he stood there and saw that the deceasedand the said three accused were having an altercation. He stopped there andthen saw that Suresh pulled out Surinder Gupta from his car. Dalip also assistedin pulling him out. The third accused, namely, Sushil Choudhary, took out akatta from beneath his shirt and fired two shots at Surinder Gupta.AfterSurinder Gupta had been hit twice by the bullets, he fell down but Dalip heldhim and it was then that Suresh pulled out knife and gave Surinder Guptaseveral knife blows. The deceased Surinder Gupta then fell on the road and thethree accused escaped from there. He further stated that other persons had alsocollected there and one Ashok (referring to PW1 Ashok Chowdhary), who wasa resident of the same neighbourhood, came there and removed the injuredSurinder Gupta in the car of the deceased to hospital. He further stated thatthereafter, he went to the house of the father of the deceased to inform himwhere several people were already present and the information about the

incident had already reached them. Subsequently, it was informed that SurinderGupta had expired. He then goes on to state about the manner in which thearrests of the accused were made on 02.06.2003 and the manner in which therecoveries were made with which we need not concern ourselves inasmuch asthe recoveries have not been connected with the crime.

54.In cross-examination by the defence counsel, this witness stated that hedid not have any cell phone in those days and that the accused had fled from thespot after the occurrence and within his sight. He further stated that the injuredwas lying on the road and about 3-4 persons including him reached the injuredsoon after. He further stated that Ashok Chowdhary also came there but did notknow anybody by the name Raj Kumar and cannot say whether he was there ornot. He stated that he assisted in putting the injured inside the car. PW1 AshokChowdhary drove away the car from there.He further stated that the injuredwas bleeding while lying on the road. He had not received blood on his clothesnor had he noticed as to whether anyone else had got blood on their clothes ornot. He further stated that he himself did not go to AIIMS nor did he requestAshok Chowdhary to take him to the hospital but that he had just told them thathe would go and inform the family of Surinder Gupta. Consequently, he wentto the old house of the deceased in Kotla Mubarakpur on foot and reached therein about 15-20 minutes time. He volunteered to state that in between he stopped

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at the shop Bhanu Garments belonging to the family of the deceased where hesaw that crowd had collected and that they had already received informationabout the incident. He further stated in cross-examination that he did not informthe police nor made any attempt and that when he returned to the spot at about1- 1:30 pm the police had already reached there and that he told the police abouthis having witnessed the occurrence. Consequently, his statement was recordedby the police but he did not know the name of the officer who had so recordedhis statement. He further stated that at that point of time, he did not know thatSurinder Gupta had died or not. After his statement, he might have stayed for15-20 minutes and he left the spot and went to the hospital by bus and remainedin the hospital till about 5 pm, where after, he went home after the dead bodyhad been sent to the mortuary.

55.This conduct of the said PW14 Subodh Kumar has been alleged by thelearned counsel for the appellants to be highly unnatural.We have alreadynoticed the observations of the Supreme Court that every witness has his ownspecial way of reacting.Some witnesses, on seeing horrific crime beingcommitted, stand still and freeze. Others may raise an alarm and cry for help.Yet others may run away from the scene and some may even advance towardsthe assailants in order to help the victim. People react differently. The fact thatPW14 Subodh Kumar neither cried for help nor ran away from the scene nor

advanced towards the assailants but just stood still and saw the crime beingcommitted cannot by itself be regarded as unnatural.There may be manyreasons as to why he reacted in the manner he did. Perhaps, he was scared.Perhaps, he knew that the assailants were dangerous people and his life was alsoat stake. Perhaps, he knew that because he had been involved in earlier cases inwhich he had been acquitted, if he ran forward he might be implicated in thiscase also. There may be myriad of reasons as to why the said PW14 SubodhKumar reacted in the manner he did but it cannot be said that it was unnatural.Therefore, on this ground alone his testimony cannot be discarded.

56.PW14 Subodh Kumar, after the assailants ran away from the spot,immediately rushed to the injured Surinder Gupta and with the assistance ofothers helped him on to the car which was driven by PW1 Ashok Chowdharytowards AIIMS hospital.Thereafter, the said witness immediately wenttowards the old house of Surinder Gupta to inform his family members of theincident. It must be noted that it has been revealed in the cross-examination thatPW14 Subodh Kumar did not have cell phone in those days and, therefore, hecould not make phone call from the spot.Instead, he chose to walk toSurinder Gupta’s father’s house. On the way, he stopped at Bhanu Garmentswhich belonged to Surinder Gupta’s brother and there he came to know that theinformation of the incident had already been received. It is subsequently that

the said witness returned to the spot when he met the police officers and madehis statement before PW20 SI Anil Kumar. There is no doubt that there is adiscrepancy in the timing with regard to the departure of PW14 Subodh Kumarand the arrival of PW20 SI Anil Kumar. But that discrepancy can be explainedby the passage of time between the incident and the date of deposition and is notso material as to entail the discarding of the entire testimony of PW14 SubodhKumar.

57.Consequently, we are of the view that PW14 Subodh Kumar’s conductwas not unnatural and that he was truthful witness. Some minor discrepancywith regard to timings cannot dent the credibility of this witness with regard tothe actual incident. Furthermore, although PW14 Subodh Kumar was chancewitness in the sense that he happened to see the incident, it cannot be said thathis presence at the spot was unexplained. He had already testified that he hadworked on part-time basis with Surinder Gupta and had gone to see him onthat day. But, before he could reach his house, the incident took place at therear portion of Surinder Gupta’s house. There was nothing unnatural about thepresence of PW14 Subodh Kumar. The fact of the matter is that he was thereand he saw the incident. We have examined the evidence with great care andcaution and come to the conclusion that PW14 Subodh Kumar was aneyewitness to the incident and that he had seen the commission of the crime at

CRL. Nos. 72/2009&73/2009

the hands of the three appellants in the manner indicated above.He hadidentified the three assailants in Court also.

58.Therefore, there is no escaping from the fact that the trial court has rightlyconvicted the appellants. Consequently, no interference with the impugnedjudgment and order on the point of sentence is called for.The appeals are dismissed.

BADAR DURREZ AHMED, J

NOVEMBER 05, 2012SR

VEENA BIRBAL, J