COMMISSSIONER OF INCOME TAX-TDS vs. THE INDIAN NEWS PAPERS SOCIETY

These are three appeals arising out of the same set of facts. Crl.A.602 of 2003 is by Rajinder Kumar @ Ganja (A-3) and Crl.A.32 of 2004 is by Raj Kumar @ Suman (Accused No.2: „A-2‟) directed against the judgment dated 25th August 2003 convicting both Appellants under Sections 302, 307 /120B IPC and additionally, A-3 for the offence punishable under Section 452 read with 120B IPC. These two appeals are also directed against the judgment and order on sentence dated 27th August 2003 whereby for the offence punishable under Section 302 read with 120B IPC each of them was sentenced to undergo RI for life, fine of Rs.20,000/- and in default to further undergo RI for 10 months; for the offence punishable under Section 307 read with 120B IPC to undergo RI for 7 years, fine of Rs.10,000/- and in default to undergo RI for 5 months; for the offence punishable under Section 452 read with 120B IPC to undergo RI for 5 years, fine of Rs.10,000/- and in default of payment of fine to further undergo RI for 5 months.

Crl. A. 920 of 2015 is directed against the judgment dated 23rd May 2015 passed by the learned Addl. Sessions Judge/Special Judge, NDPS, Rohini Courts in Sessions Case (SC) No.56 of 2013 arising out of FIR No.722 of 1995 registered at PS Punjabi Bagh and SC No. 19 of 2015 arising out of FIR No.116 of 1996 registered in the same PS convicting the Appellant Jagdish @ Jaggi (Accused No.4: „A4‟) for the offences under Sections 120B, 302, 307, 452 IPC as well as Section 27 of the Arms Act. Crl.A.920

It must be mentioned at the outset that as far as Rajinder Kumar (A-3) is concerned, by an order dated 31st January 2005, his sentence was suspended subject to terms. By that time, as noted by the Court, he had already been in custody for more than 9 years. As far as the Appellant Raj Kumar (A-2) is concerned, his sentence was suspended by the order dated 5th May 2005 in which it was noticed that he had already been in custody for nearly 6 years. As far as the Appellant Jaggi (A-4) is concerned by an order dated 19th January 2017 his sentence was suspended subject to terms. By this time, he had already undergone more than 9 years of incarceration.

It also requires to be noted that originally in FIR No. 722 of 1995 six accused were charge-sheeted. Apart from Raj Kumar (A-2), Rajinder Kumar (A-3) and Jagdish @ Jaggi (A-4), the other accused were Pankaj @ Kaka (A-1) (declared as Proclaimed Offender „PO‟ on 1st April 2003), Rajbir Singh (A-6) who was acquitted by the judgment dated 27th August 2003 and Narayan Singh (A-5) who died during the pendency of the trial and the proceedings against him stood abated on 29th November 2001.

Initially, A-4 had appeared in the trial Court up to 13th July 2001 and thereafter, stopped appearing and was ultimately declared PO on 29th November 2001. When the judgment dated 27th August 2003 was passed by the trial Court in Sessions Case No.9 of 2000, A-4 was absconding. He was subsequently apprehended on 5th July 2007 and, therefore, the trial against him proceeded separately. Up to the time when A-4 appeared in the trial Court initially up to 13th July 2001 PWs1 to 8 had been examined in his presence. After he was declared PO, PWs 9 to 37 were examined vis-a-vis the other accused and these included injured witness Pramod (PW-13). After A-4 was apprehended, 21 of the PWs were examined and were given fresh PW numbers.

A separate charge regarding commission of house trespass punishable under Section 452 read with 120B IPC was framed against A-1, A-3, A-4, A-5 and A-6 (leaving out A-2). In other words, the charge was that they entered House No.618/3, Paschimpuri occupied by Smt. Omi Devi with their revolvers, dagger and knife pursuant to the criminal conspiracy thus committing house trespass.

A separate charge was framed against A-4 and A-5 for having committed the murder of Vimal while executing the criminal conspiracy and seeking to commit the murder of PW-3 and his relatives, thus committing the offence

A separate charge was framed against A-4 of being found on 5th February 1996 at around 5.50 pm in possession of desi katta containing a live cartridge which was used in the murder of Omi Devi and Chander Shekhar thus committing an offence under Section 27 of the Arms Act.

According to PW-3 at around 3.30 pm on 1st October 1995, six persons entered the house of PW-3. A-4 and A-5 were having revolvers whereas A-3 and Vimal were having knives. A-6 and one other person whom PW-3 did not recognise were standing behind. All of a sudden, A-4 and A-5 fired at Omi Devi, the mother of PW-3, Chander Shekhar, the brother of PW-3 and his friend Pramod (PW-7). PW-3 managed to escape from there and from the first floor of the house he noticed A-3, A-6, A-4 and A-5 and another unknown person running from there. He noticed that Vimal and his brother Chander Shekhar were scuffling with each other. Chander Shekhar was having a sword and Vimal a dagger.

There were three deceased in the incident. Vimal, who was with those persons that supposedly attacked the victims, died. On the side of those who

The police noticed that a dead body of a boy was lying outside the house in a pool of blood (this was later identified as Chander Shekhar). The police entered the room where the dead body of the lady aged 40/45 years (later identified as Omi Devi) was also found lying in a pool of blood. Inside the room, blood was found scattered. One sword stained with blood was found lying in the gallery outside the room. One bloodstained dagger was found lying outside the house. Four fired bullets were found lying at the spot. One fired bullet was lying behind the sofa; one on the floor, one on the double bed and the fourth one was embedded into the ply of divan.

The police were informed that injured Vimal and PW-13 (Pramod) had already been removed to the hospital. The dead bodies of Omi Devi and Chander Shekhar were sent to the DDU Hospital mortuary in an ambulance. According to PW-37, the complainant met him at the spot. His statement (Ex.PW-3/A) was recorded. Rukka was prepared for registration of the FIR through Constable Rashid Khan (PW-21).

On inspecting the site and on the pointing out of PW-3, PW-37 prepared the site plan (Ex.PW-37/B). The crime team was called and photographs taken. The sketch of the spot was prepared and the sword itself was sealed and seized by Memo (Ex.PW-3/B). The blood lifted from the spot was sealed and seized. Likewise, the earth sample was also seized and sealed vide memo (Ex.PW-3/C).

Blood sample was lifted from the entrance gallery where the dead body of Chander Shekhar was lying in a pool of blood. Blood sample was sealed and taken into possession vide Memo (Ex.PW-3/E). Earth sample was seized under Memo (Ex.PW-3/A).

Blood sample was lifted from the place where Omi Devi‟s dead body was found lying under Memo (Ex.PW-3/G) and earth sample from the place where Vimal‟s dead body was lying under Memo (Ex.PW-3/H). Sketch of bullets, sketch of dagger were prepared and the dagger itself was measured and taken into possession. The bloodstained bed-sheet was also seized and sealed.

PW-37 then proceeded to DDU Hospital where he collected the MLCs of Omi Devi, Chander Shekhar, Vimal (the three deceased) and Pramod (PW-13). As far as the three deceased are concerned they were declared as brought dead. Returning to the spot, PW-37 collected the bullets embedded in divan and on the sofa and behind it and got them sealed. The following day i.e. 2nd October 1995 the case property was deposited in the PS Malkhana. The dead body of Vimal was identified by Ranjan Kukreti (PW- 1).

On 11th October 1995, PW-37 along with PW-3 and other staff were present at Paschimpuri chowk when they received the secret information that A-2 (Raj Kumar @ Suman) would come near the Milan Cinema at 3 pm. Again a raiding party was organised and some passersby were asked to join but they refused. PW-37 and staff reached the spot on the pointing out of the informer and A-2 was arrested and his personal search conducted. A- 2 is supposed to have led the police to the place of crime.

A-2 himself filed an application for his TIP and the date was fixed as 16th October 1995. However, on that date A-2 refused to participate in the TIP.

On 22nd October 1995, PW-37 along with PW-14 and other staff as well as PW-3 were present near the Dimple Chowk when they received secret information that A-1 i.e. Pankaj @ Kaka would come at the Paschimpuri Chowk at around 5 pm. A raiding party was constituted, passersby were

On 1st December 1995 Inspector Devinder Singh (PW-12) who was the draftsman visited the spot and on the pointing out of PW-3 took rough notes and measurement for preparation of the scaled site plan.

On 2nd December 1995 PW-37 took possession of one Tata Sierra ending with the number 0023 from the possession of one Anil Kumar. The said vehicle was purportedly used for the commission of offence. On 27th December 1995 a scaled site plan was prepared (Ex.PW-12/A). In the initial phase, PW-37 prepared the charge-sheet against A-2, A-3 and A-1.

On 5th January 1996 A-6 was formally arrested in this case and PW-37 prepared a supplementary challan of A-2.

According to PW-37, on 5th February 1996 he along with PW-14, PW-3 and the other staff were present near Paschimpuri Chowk. A secret information was received that A-4 would come near the Peepal Chowk, Paschimpuri. A raiding team was organised. 5–6 passersby were asked to join but they refused. At around 5.50 pm on the pointing out of the informer A-4 was arrested. From his right side dub a country-made revolver was recovered for which separate proceedings were ordered to be conducted by PW-14.

PW-37 then interrogated A-4 and his disclosure statement (Ex.PW-14/F)

According to PW-37 on 15th February 1996 on secret information they apprehended A-5 (since deceased). His disclosure statement (Ex.PW-14/H) was recorded. A supplementary charge-sheet was filed by PW-37 against A- 2 and A-4.

The FSL report (Ex.PW-9/A) dated 28th March 1996 (Ex.PW-9/A/ Ex.PW-32/A) confirmed that the .32 crime bullet mark-D/6 was fired from the country-made revolver mark-A and the .32 crime bullets mark-B1 to B4 “had been fired through the country-made revolver mark-A.” It was also not possible to form any opinion regarding linkage of the .32 crime bullet mark- B5 in respect of the country-made revolver “due to lack of individual characteristic remarks.” It was further opined that country-made revolver mark-A was in working order. This FSL report is dated 1st May 1996.

On 14th May 1996 sanction was accorded under Section 39 of the Arms Act to prosecute A-4 for the offence punishable under Section 25 of the Arms Act.

As already noticed, 37 witnesses were examined by the prosecution and some of them were recalled after A-4 who went absconding during the trial

In their respective statements under Section 313 CrPC, A-2 and A-3 denied all of the incriminating circumstances. As far as A-2 is concerned, the standard reply to all the questions was „I do not know.‟ The only statement made by him was that “I am innocent and falsely implicated by the police.”

Even as regards A-3, the exercise was no different. He too stated that he was falsely implicated and that the exhibits have been planted. He further claimed to have himself surrendered to the police and that “the FIR was recorded much subsequently after due deliberations and concoction and was, therefore, ante-timed. When he was asked if he has anything else to say, A- 3 stated as under: “My friend Harsh Priya is residing near the place of occurrence and has a video shop. In Aug. 1995 I went to the roof of Harsh Priya and we were flying kites when wife of Ved Parkash was also present on the roof. The complainant side thought that I was there to tease the lady and they fought with me one day prior to the occurrence I had gone along with my friend to watch Ram Lila where Ved Parkash, his wife and others had also gone. Complainant side again suspected that I was following the wife of Ved Parkash and as such they started beating me. I was saved by Mr. Har Bhajan Singh, Gopi and my friends, it is for this reason that I have been falsely implicated in the present, case. The complainant side suspected that I had an evil eye on the wife of Ved Parkash, although there was no such thing. I am innocent. I have been falsely implicated. I was not present at the spot on the day of occurrence nor I had committed any crime. I had surrendered before the police when I learnt about my false implication and I told the IO that I was not involved in the occurrence and the

As far as A-4 is concerned, he too denied all the incriminating circumstances. He claimed to have surrendered on his own and that the revolvers were planted on him. He stated that Ex.PW-3/A i.e. the report lodged by PW-3 was “a result of due deliberation and fabrication.” He claimed that nothing was recovered from his possession. When asked why the witnesses had deposed against him, A-4 stated as under: “They are false and interested witnesses. Ved Prakash and his family members had demanded money after the case in order to depose in my favour. On my refusal they deposed against me while being hostile against qua two accused.”

When asked if he had anything else to say, A-4 stated as under: “Respected Madam, I am innocent and have been falsely implicated in this case. I have nothing to do with Cable Business either of Inderjeet or Jawahar. In fact I had business dealings with Ved Prakash and money was due on him. Further, Ved Prakash used to suspect that co-accused Rajender used to tease his wife and he made a complaint in this regard to me. I did not take the complaint seriously. Ved Prakash thought that I was making fun of him and started making grudge against him and for this reason I have been falsely implicated. I was not present at the spot on the date of incident. I was in my Mausi's home, who has expired. I am innocent.”

After A-4 surrendered he examined Surender Sharma as DW-1 again. According to him, A-4 was working as a sales man in his tyre shop at Janpath Lane, Connaught Place. Sometime in 1995, according to him it was a Sunday, his shop was closed. The mother of DW-1 was seriously ill and A-4 had come to his house with his mother in the morning and stayed till 7 pm. According to this DW-1, A-4 had been falsely implicated. In his cross- examination, DW-1 disclosed that A-4 was the son of the real aunt of DW-1. He was unable to produce any income tax returns about his earnings. He spoke about the illness of his mother as a result of which A-4 had come there.

ASI Urmil Sharma was examined as DW-2. He produced inter alia DD 11A regarding sending of Constable Om Prakash to deliver the FIR to the Elaka Magistrate at 6.30 pm on 1st October 1995. DD 13A was regarding the return of Constable Om Prakash after delivery. This was at 10.30 pm in the PS on 1st October 1995.

After the surrender of A-4, Inderjeet was also examined as DW-2. Vimal (deceased) was his employee. According to him, Vimal was on cable duty on 1st October 1995 and had gone in the gali of PW-3 to fix a cable complaint of one of the clients of Inderjeet (DW-2). According to him, PW- 3 bore a grudge that DW-2 had cable connections in his gali and, therefore, had ill feelings towards Inderjeet. According to DW-2 (Inderjeet), his

In his cross-examination, Inderjeet disclosed that he started as cable operator in 1991-92 under the name of JMR Cables. He was its sole proprietor. Income Tax Returns were stated to have been filed in the name of his brother Dharmender Grover. However, Inderjeet was unable to produce any registration certificate for the cable business. Inderjeet offered to produce the membership cards of the current period but not of the period during which the incident took place. He admitted that even prior to the incident there was a dispute between PW-3 and his relatives and Inderjeet warranting two kalandaras, which were drawn up under Sections 107 and 111 Cr PC. Inderjeet also admitted that he did not approach any police officer explaining how Vimal got murdered because the family of Vimal did not want any further action in the matter.

As far as A-4 is concerned, the impugned order is dated 23rd May 2015 and specific to A-4 the trial Court discussed the evidence of PWs 3, 5, 13 and Harish Yadav (PW-17). The IO was examined as PW-37 / PW-38A. The other witnesses were more or less formal in nature.

The trial court noted that PW-17 had turned hostile whereas both PWs-3 and 5 had supported the case of prosecution. Also, PW-13 was an injured witness who had remained un-rebutted. Nothing material was elicited to discredit his testimony. No suggestion had been given to PW-3 that he was not present at the spot and was not an eye witness and his statement was not recorded at 5 pm.

The trial Court noted that the evidence of ASI Balbir Singh (PW-21A) showed that PW-3 was already present when he reached the spot at 4 pm and he was weeping. There was no reason for the injured eye witness i.e. PWs-3, 5, 7 and 13 to depose falsely against the accused. Convinced with the eye witness testimony particularly of PW-13 the trial Court found A-4 guilty of the offences which he has been charged.

The trial Court found that the defence witnesses also did not help the case of A-4. The forensic evidence proved that the bullet inside the body of PW-13 was fired from the country-made revolver which was subsequently recovered from A-4 at the time of his apprehension. Merely because the IO could not recollect several years after the incident where the 6th bullet came from was not a ground to suspect the entire case of the prosecution. However, as far as the charge under Arms Act was concerned, the officer who gave sanction was not examined after apprehension of A-4 and, therefore, A-4 was given benefit of doubt for the offences under Section 27 of the Arms Act but found guilty of all the other offences namely Sections 120B, 302, 307 and 452 IPC. The trial Court then proceeded to sentence A-4 in the manner indicated hereinbefore.

This is a case based on eye witness testimonies and the key eye witnesses as far as prosecution are concerned are the injured eye witnesses Jawahar Lal (PW-3) and Parmod (PW-13). The other eye witnesses relied upon by the prosecution are Ved Prakash (PW-5) and Harish Yadav (PW- 17).

To recapitulate, according to the prosecution, the party that attacked was

The party which was attacked lost two persons Omi Devi (the deceased), the mother of PW-3 (as well as Chandershekhar, the brother of PW-3). The motive for the quarrel is supposed to be the rivalry over the cable TV business.

Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai v. State of Bihar, (2001) 7 SCC 318; State of U.P. v. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh v. State of U.P., (2011) 13 SCC 206; Dahari v. State of U. P., (2012) 10 SCC 256; Raju @ Balachandran v. State of Tamil Nadu, (2012) 12

In Piara Singh v. State of Punjab AIR 1977 SC 2274 the Supreme Court held: "It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."

In Hari Obula Reddy v. The State of Andhra Pradesh (1981) 3 SCC 675 the Supreme Court observed: ".. it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence.

Again in Ramashish Rai v. Jagdish Singh (2005) 10 SCC 498, it was held: "The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By

The person triggering the investigation was PW-3. He is supposed to have given the statement at around 5.45 pm on 1st October, 1995. This was the rukka (Ex.PW-3/A) which was taken down by Inspector K.C. Tyagi, the Additional SHO of PS Punjabi Bagh. According to PW-3, at around 3.30 pm, he, younger brother Chandershekhar (deceased), mother Omi Devi (deceased) and their friend Parmod Kumar (PW-13) were watching television in the room on the ground floor of their house. His elder brother, Ved Prakash (PW-5) and his other friend Harish Yadav (PW-17) were purportedly present on the first floor of the house. At that time, six persons whom he named – Vimal (deceased), Jagdish @ Jaggi (A-4), Raj Kumar @ Ganja (A-2), Rajender Kumar @ Ganja (A-3) Narayan Singh (A-5) and Rajbir (A-6) – all of whom he recognized from before entered.

According to PW-3, A-4 and A-5 were holding revolvers while A-3 and Vimal (deceased) were holding knives and Rajbir (A-6) was holding a dagger. According to him, A-4 stepped forward and said in an angry tone

According to PW-3, he was watching from above and saw A-4, A-5, A- 6, A-2 and one unknown person running away by getting into a Tata Sierra vehicle which was outside the house. Vimal staggered outside and fell on the road while Chandershekhar lay near the doorway. Both were in pools of blood. When PW-3 came downstairs, he noticed that Parmod was also injured from the firearm and was bleeding. Somebody called up the police, which reached there after some time and took both Vimal and Parmod in the PCR van to the hospital. In this statement, PW-3 also referred to the fact that a few days earlier, Vimal, A-4 and A-5 had threatened him that he would be killed if he did not close down the cable tv operation.

The examination of PW-3 commenced on 12th August, 1998 and the cross-examination concluded finally on 16th November, 2000. Interestingly, he first described the arrest of Rajender @ Ganja (A-3) as having happened on 7th October, 1995 with the policemen coming to the house of PW-3 and

More than three months thereafter, a statement was recorded of PW-3 on 6th May, 1999, as PW-3 had filed an application stating that A-3 was wrongly mentioned as guarding the spot. It was asserted that it was A-2 who was guarding the spot. According to him, after his arrest, A-3 disclosed before the police that the knife used by him in the incident had been hidden by him in the house of his sister at Jaipur.

On 22nd October, 1995, PW-3 is stated to have joined the police party along with the secret informer who had informed the police that A-1 was standing at the bus stand of Paschim Puri. The informer identified A-1 and pointed him out to the IO. PW-3 is also stated to have identified A-1 to be the boy who caught hold of Chandershekhar when Vimal had assaulted him on the date of occurrence. He stated that A-1 on seeing the police tried to run away, but was apprehended. On his search, a loaded katta was recovered from the left dub. One personal visiting card was also recovered. A-1 also

However, PW-3 did not fully support the prosecution and was sought to be declared hostile by the APP on some aspects. There were some contradictions vis-à-vis the statements recorded of PW-3 under Section 161 Cr PC. He denied that he had been won over by Rajbir in respect of whom he resiled from his previous statement. Interestingly, as will be noticed hereafter, even the other injured eye witness PW-13 did not support the prosecution as far as Rajbir was concerned.

There was extensive cross-examination of PW-3 – first by counsel on behalf of accused Pankaj (A-1), who anyway absconded during the course of trial. Then there was a very detailed cross-examination of PW-3 on behalf of Jagdish (A-4), but during this cross-examination, PW-3 stood firm. He (PW- 3) confirmed that PW-13 and the deceased Vimal were taken in one police vehicle to the hospital. He was also careful to state “only the police people put those in the vehicle and I did not hold them in any manner”. Possibly he was asked as to why he did not go to the hospital and his reply was “I was inside my house and the police did not allow anyone to enter anyone into our house.”

There was one statement made by PW-3 which may have been helpful to A-2. He states “on the day of this incident, I did not see Raj Kumar accused”. Before this, he stated that “prior to this incident he did not know A-2 and the name of A-2 was told to him by his brother Ved Prakash (PW- 5).

The cross-examination of PW-3 by counsel for A-3 commenced on 5th February, 2000 and continued till the next date i.e. 16th November, 2000. During this cross-examination, a lot of questions were asked about his accompanying the injured and he stated as under: “My mother was bleeding, I did not try to stop the bleeding of my mother, either placing my hand, or some other agent, which may prevent the flowing out of the blood. My same reply is, regarding my deceased brother; as they were dead. My reply is the same, regarding my friend, Pramod, who was alive. No cloth was put on the dead bodies of my mother and my brother, as I became stunned. No neighbour came inside the house, nor I called any neighbour, by raising alarm, I did not accompany the dead bodies and injured to the hospital and I remained at my house.”

Then there were lot of questions asked about the room where the incident took place. This is relevant because there were extensive arguments on the basis of the rough site plan and scaled site plan. His answers in this regard were as under: “The room at its back was of the size 9 X 14 feet approximately. There used to be one diwan, 5 seats sofa and one centre table in this room, and one T.V also. The both doors of our house were opened en the date of occurrence. The, accused' persons were entered from the door of the cable room. The site plan was prepared in my presence and ®n my pointing out.”

Then he (PW-3) was asked about the manner in which the firing took place and his replies were as under: “The accused had entered the room in which occurrence had taken place and were standing near the door facing the office door. The accused persons had entered our house suddenly and we did not get any chance to close the door. The fired bullet

Some of his (PW-3‟s) cross-examination continued even on 16th November, 2000. A careful analysis of the evidence of PW-3 indicates that except creating a doubt as regards the presence of A-6, and to some extent, A-2, nothing substantial emerged to help either A-3 or A-4.

Seeing all of this, PW-5 got frightened and ran towards the room near the kitchen. He noticed PW-3 running upstairs in order to save himself. This witness correctly identified A-2 standing in the gallery with a katta in his hand. He noticed the accused get into the Tata Sierra vehicle parked outside the house which had been driven by A-6. Vimal who was badly injured, fell on the ground outside the house in a pool of blood.

He too was cross-examined by APP as regards his claim not to have seen A-5. PW-5 now stated that he had not seen A-6 sitting in the Tata Sierra vehicle and running away with other co-accused. He was cross-examined on behalf of both A-3 and A-4 extensively. He is carefully to say: “I did not weep and embrace my mother and brother who were lying lifeless, but I did not not know whether my brother Jawahar did the same or not. Police personnel did not allow us to accompany the injured to the hospital. Police also did not allow us to lift the injured in the van. We did not cover the injured with any cloth. We did not lift head of injured persons in our laps. It is wrong to suggest that I, my brother Jawahar and Harish Yadav were not present at the spot or that I am deposing falsely.”

These answers were important because there was an attempt made by counsel for the Appellants to question why there were not bloodstains on the clothes of any of the close relatives who were present and why they did not accompany the injured / deceased to the hospital. A valid explanation has come in the answers – by both PWs 3 and 5.

PW-13 also stated how A-4 had opened the fire upon him consequent upon which he received a gunshot injury on his left arm, which entered in his chest. First he was cross-examined by the counsel appearing for the accused Pankaj (A-1). An opportunity was given to counsel for A-2 to cross- examine him, but he did not avail of it. When cross-examined by counsel for A-6, he stated that A-6 was not one of those who had exhorted the others to attack. He stated that he had not seen A-6 earlier, although he was present in the Court.

PW-13 was extensively cross-examined by counsel for A-3. Nothing came of it. His cross-examination, which took place on 29th January, 2002, continued on 30th January, 2002. He too was asked questions about where

The fourth witness was Harish Yadav (PW-17), who turned hostile. Although, the trial Court relied, to some extent, on even his testimony, for the purposes of the present appeals, it is enough that this Court discusses the evidence of the two injured eye witnesses i.e. PWs 3 and 13, and the other eye witness PW-5.

On the broad material particulars, as to who entered the room at 3.30 pm, and who attacked the deceased/injured with knives and fired from the revolvers, the three witnesses are more or less consistent and corroborate each other. All of them speak of A-4 holding a revolver in his hand and firing upon both the deceased Chandershekhar and his mother Omi Devi. They do speak about A-4 firing upon PW-3, who narrowly escaped, and PW-13 who suffered a bullet injury.

There were four fired bullets recovered from the room and the FSL report clearly states that one of those fired bullets matched the revolver recovered from and stated to have been used by A-4. There is clearly, therefore, apart from inter se consistency in the testimonies of these three witnesses, support from the forensic evidence.

If one goes by the medical evidence, we have Dr. L.K. Barua (PW-29), who performed the post-mortem of Omi Devi on 3rd October, 1995. At least three incised wounds, which are relatable to the knife injuries and two punctured wounds, which relate to the firearm injury, confirmed that the death was homicidal. He also conducted the post-mortem of Chandershekhar. There were as many as eight incised wounds and two punctured injuries. Therefore, the fact that Chandershekhar got attacked both by knife and was fired upon also stood established. The same doctor also conducted the post-mortem of Vimal. He too suffered several incised wounds and one punctured wound. This again corroborates the testimonies of these witnesses.

The other medical evidence of Dr. Sushma Dudeja (PW-26) confirms the bullet injuries suffered by PW-13. She noticed the following injuries: “1. A circular wound approximately 1 cm diameter on dorsal aspect of left arm four fingers above the elbow joint. There was blackening of skin approximately 0.5 cm present all over the wound. There was light fresh bleeding.

A circular wound approximately 1.0 cm in diameter on left chest wall 1 inch lateral to left nipple. The blackening of skin approximately 1 cm around wound was present. Slight bleeding was present. There was slight edema of skin present. Patient

PW-26 identified the handwriting of Dr. Shikha Chawla who had filled up the x-ray form and her noting that the injuries suffered by PW-13 were dangerous. Consequently, the medical evidence fully corroborates the eye witness testimonies about the deceased succumbing to both the knife wounds as well as bullet injuries.

Both as regards A-3 and A-4, therefore, all three witnesses i.e. PWs-3, 5 and 13 have spoken consistently. Only as regards A-2, while PW-3 has created some doubt, both PWs 5 and 13 are clear and consistent as to his involvement as well.

The site plans ought to have been drawn up more carefully to indicate where precisely the eye witnesses were positioned and from where they could have seen the incident. Nevertheless, in this particular case, with the eye witnesses speaking consistently notwithstanding that they were being cross-examined, more than six years after the occurrence, nothing much appears to have been elicited to doubt their credibility. These three eye witnesses, namely, PWs 3, 5 and 13 are clear, consistent, truthful and reliable. As already noticed hereinbefore, their testimonies stand broadly corroborated by both the forensic and the medical evidence.

In this context, the Court is inclined accepts the reasoning of the two judgments of the trial Court i.e. the judgments dated 25th August, 2003 in respect of the conviction of A-2 and A-3 and the judgment dated 23rd May, 2015 in respect conviction of A-4. The defence witnesses do not particularly come to the aid of the accused and do not create sufficient doubt to discredit the eye witness testimonies.

In Mano Dutt v State of U.P. (2012) 4 SCC 79, the importance of the evidence of the injured eye witness was highlighted as under: “30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate' a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong

In the present case, the eye witness testimony of PW-13, who was injured in the firing, has proved to be invaluable as far as prosecution is concerned.

This Court is unable to find any error in the above reasoning or conclusion of the trial Court.

As regards the delay in registering the FIR, the trial Court has extensively discussed in the following paragraphs, which again this Court concurs with: “9.7 From the ocular testimony in this regard, ct. Rashid Khan PW17/A specifically deposed that he was handed over the rukka by the investigating officer at 5.45 PM and he carried that rukka to the police station for FIR. In the cross examination of PW17 A Ct. Rashid Khan, by the present accused, there is not even a suggestion given to the witness that he was not handed over the rukka at 5.45 PM or that he did not carry that rukka to the police station or that he did not carry a copy of FIR and original rukka to the spot from the police station on that very day. Thus the testimony of PW17/A on this aspect of the matter remains unrebutted.

As regards the delay in doctor receiving the inquest paper, again, the following reasoning of the trial Court merits acceptance: “9.11 Accused also argued that the inquest papers were sent to the concerned doctor only on 3.10.1995, whereas the incident occurred on 1.10.1995 and therefore also the delay in registration of FIR and concoction in the story of prosecution is writ large. Accused also argues that DO no. 10 Ex.DW-2/A does not contain names of the accused which indicates manipulation.

Consequently, this Court is unable to find any infirmity in the reasoning and conclusion arrived at by the trial Court, as regards the guilt of the three

The appeals are accordingly dismissed. The bail bonds and surety bonds furnished by each of the Appellants stand cancelled. They are directed to surrender on or before 22nd November 2018, failing which the SHO concerned will immediately take requisite steps to have them taken in custody for serving out the remainder of their sentences. The trial Court record be returned forthwith together with a certified copy of this judgment.