Amar Singh vs The State (NCT of Delhi)

10.00 pm. – Three accused persons attacked the victim with hockeys and a knife – When PW-1 and PW-11 tried to rescue their brother, all the three accused persons brandished their hockeys and knife and warned that whosoever will come to save victim will also be killed – Later, victim was taken to hospital and he was declared dead by the doctor – The trial Court convicted the accused persons u/s.302 IPC r/w. s.34 IPC and sentenced them to life imprisonment – Before the High Court, inter-alia, it was contended that the prosecution case was based on eye witness on account of the incident, however, PW-11 and PW-5 did not support the prosecution case and thus it was not safe to rely upon the solitary evidence of the sole remaining eye witness PW-1 – However, the High Court found that the trial Court did not suffer from any infirmity or perversity and dismissed the appeal – On appeal, held: PW-11 and PW-5 turned hostile – The finding of guilt of the accused appellants is based on sole testimony of eye witness PW-1 – The assailants were only armed with hockey sticks and a knife and not with any firearms – The two brothers (PW-1 and PW-11) present on the spot did not make slightest attempt to intervene and save their brother when he was getting assaulted – This unnatural conduct against natural human behaviour casts a serious doubt of shadow on the presence of eye witness on the spot at the time of occurrence – Further, doctor who prepared the MLC stated in his evidence that one dead body was brought in the casualty of hospital by a head constable, which casts doubts on the prosecution story that two brothers of deceased accompanied him to the hospital – Also, there is material discrepancy between ocular testimony and medical evidence – As there were 15 injuries inflicted on the victim as per medical report and PW-1 stated that whole incident lasted 5 minutes – It is practically impossible to inflict 15 injuries within a short span of 5 minutes – This fact coupled with the fact that two brothers remained mute spectators when the third brother-victim was being assaulted in clear indication that PW-1 was not present on the spot and not an eye-witness to the incident – Therefore, the reasons given by the Courts below for convicting the appellants for the alleged offences are not convincing – The appellants must be given benefit of doubt – Thus, the impugned orders of the Courts below are set aside.

Allowing the appeals, the Court

HELD:1. The assailants were only armed with hockey sticks and a knife and not with any firearms. It seems very unnatural that two brothers present on the spot will not even make slightest attempt to intervene and try to save the other brother being assaulted, merely on the threat extended by the assailants armed with hockey sticks and a knife. This unnatural conduct totally against natural human behaviour casts a serious doubt of shadow on the presence of eye witness on the spot at the time of occurrence. Moreover, the facts stated by PW-1 in this regard, as already discussed above, has not been corroborated by the other brother PW-11. [Para 20][761-E-F]

2. The other unnatural conduct of two brothers PW-1 and PW-11 just after the incident again makes their presence on the spot extremely doubtful. There was a medical clinic just nearby the place of incident and the first endeavour of the two brothers would have been to take injured brother to the clinic for immediate medical aid or try and get some medical aid from the clinic. Admittedly, according to the statement of PW-1 PCR Van arrived after about 15 minutes. During this period no effort was made to either take the injured brother to the clinic or to call the doctor for some first aid. This is totally against normal human behaviour. [Para 21][761-G-H; 762-A-B]

3. According to the prosecution story the two brothers, PW-1 and PW-11 accompanied the injured to the Hospital in the PCR Van and were present during his medical examination. However, a perusal of the MLC Ex. PW-17/A filed in VolumeII of additional document goes to show that in the column meant for recording name initially unknown is mentioned and subsequently name of the victim has been recorded. Likewise in the column made for recording the name of relative or friend initially the name of a Head Constable is entered and after recording the words ‘V/C’ V-89 PCR No. 1008/PCR in the second line words ‘and brothers’ appears to have been added. [Para 23][762-E-F]

4. This in itself casts serious doubts of shadow on the prosecution story that two brothers of the deceased, PW-1 and PW-11 were present on the spot and accompanied the injured in PCR Van to AIIMS. Had it been so, naturally, they would have given the name of the deceased and their own names which would have been recorded in the MLC Ex. PW-17/A at the first instance. Doctor-PW-17/A who prepared the MLC stated in his evidence that one dead body was brought in the casualty of AIIMS by Head Constable having multiple sharp deep injuries all over the body and he prepared the MLC PW-17/A. [Para 24][762-G-H; 763-A]

5. Further, there is material discrepancy between ocular testimony and medical evidence. Thus, there are total 15 injuries inflicted by three assailants, two having hockey sticks and one knife as per prosecution story. PW-1 emphatically stated that whole incident barely lasted five minutes. It would be practically impossible to inflict 15 injuries of the type by three assailants simultaneously attacking the deceased within a short span of 5 minutes particularly when the victim being a normal healthy person naturally must have offered resistance. Inflicting 15 injuries on the body of the deceased by three accused persons would require a considerable amount of time. This itself suggests that the three accused had sufficient time at their disposal to conduct the crime and the entire incident could not have taken place within five minutes as stated by eye witness PW-1. This fact coupled with the fact that two brothers of the deceased remained mute spectators when the third brother was being assaulted is clear indication of the fact that PW-1 was not present on the spot and not an eye witness of the incident. [Paras 26 and 27][763-C; 765-B-E]

Kartarey and Ors. v. State of U.P. (1976) 1 SCC 172 : [1976] 2 SCR 199 ; Ishwar Singh v. State of U.P. (1976) 4 SCC 355 – relied on.

Sunil Kumar v. State Government of NCT of Delhi (2003) 11 SCC 367 : [2003] 4 Suppl. SCR 767 ; Selvaraj v. The State of Tamil Nadu (1976) 4 SCC 343 – referred to.