* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: September 02, 2009
Judgment delivered on : December 15, 2009
+ CRIMINAL APPEAL NO.271/1994
SURINDER KUMAR ..... APPELLANT
Through: Ms. Seema Gulati, Advocate
Versus
THE STATE(GOVT. OF DELHI) ..... RESPONDENT
Through: Mr. Pawan Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be
reported in Digest ?
AJIT BHARIHOKE, J.
1. The appellant, having been convicted in Sessions Case No.92/94 FIR No.90/93 for the offences punishable under Section 302 IPC and Section 27 of the Arms Act and sentenced to undergo imprisonment for life for the offence under Section 302 IPC and to pay fine of Rs.1000/-, in default of payment of fine to undergo SI for a period of one year and for offence under Section 27 of the Arms Act to undergo RI for the period of three years with fine of Rs.500/-, in default of payment of fine to undergo SI for three months, has preferred the instant appeal. Crl.A.No.271/1994 Page 1 of 15
2. Briefly stated, case of the prosecution is that on 07.04.1993 at about 3:52 PM, wireless operator visited the Police Station Sadar, Delhi and informed the Duty Officer that Head Constable Mohd. Jamil No.92/N has informed that a knife stabbing incident had taken place at Nawab Road after some exchange of hot words. Information was recorded as DD No.12A and copy of the DD was sent to SI Ram Khilari, through Constable Dharamvir Singh for necessary action.
3. SI Ram Khilari, PW15 along with Constable Dharamvir Singh reached at Nawab Road. He met PW6 Om Parkash S/o Jai Ram and recorded his statement. PW6, Om Parkash stated to the Investigating Officer that at the relevant time, he was sitting on a cot on the pavement of Nawab Road along with Chain Sukh S/o Chaman Lal and some other persons. At about 3:30 PM, he saw appellant Surinder Kumar @ Bittoo and the deceased Hari Singh @ Kallu quarrelling with each other. Appellant Surinder, in the process, stabbed Hari Singh @ Kallu with a knife and thereafter ran away after leaving the knife at the spot. In the meantime, Lakhpat, brother of the appellant Surinder, picked up the knife from the spot and ran away. Hari Singh @ Kallu was taken to the hospital in a three-wheeler scooter. On the basis of his aforesaid statement Ex.PW6/A, formal FIR under Sections 307/201 IPC was registered and the investigation was handed over to SI Ram Khilari.
Crl.A.No.271/1994 Page 2 of 15
4. At about 5:00 PM, Constable Netar Singh who was on duty at RML Hospital conveyed an information to the Police Station that Hari Singh was admitted in hospital by his wife and that he was declared dead. This information was recorded as DD No.15A at the Police Station and copy of said DD report was also sent to SI Ram Khilari, through Constable Surinder Kumar. Information was also conveyed to the Inspector who was on patrol duty in the area. The Inspector along with his staff reached at the hospital where he met SI Ram Khilari and obtained the MLC of the deceased. The dead body was sent to the mortuary. Subsequent investigation was taken over by Inspector M.S. Chikara. By that time, SI Ram Khilari had already collected a packet of clothes of the deceased from the Doctor concerned. Inspector M.S. Chikara conducted the inquest proceedings and he sent the dead body for post mortem with his request Ex.PW19/A and after post mortem, the dead body was handed over to the relatives of the deceased. The Inspector recorded the statements of the witnesses. He went to the spot and prepared site plan of the scene of occurrence. During the course of the investigation, it was revealed that in the morning of 07.04.93, deceased Hari Singh @ Kallu had a quarrel with Lakhpat, co- accused because Lakhpat had made some remarks against the fidelity of wife of Daya Chand. When the other co-accused Shiv Lal came to know about the beatings suffered by Lakhpat at the hands of Hari Singh @ Kallu, he rebuked him and instigated him to kill Hari Singh and he sent Lakhpat and his wife Jagotri to call the appellant Surinder from Crl.A.No.271/1994 Page 3 of 15 9/15, M.C.D. Quarters, Rameshwar Nagar, near Adarsh Nagar. Appellant Surinder along with him went to Nawab Road where he found the deceased Hari Singh @ Kallu. An altercation took place between them and Surinder, in the process, took out a knife which he had carried from his house and stabbed Hari Singh thrice. Hari Singh was taken to RML Hospital by his wife Kaushalya Devi.
5. On completion of formalities of the investigation, a charge sheet was filed against the appellant as well as Lakhpat and Shiv Lal.
6. Appellant was charged for offences punishable under Section 302 read with 34 IPC and Section 27 of the Arms Act, whereas Lakhpat was charged for the offence punishable under Section 302 read with 34 IPC and Shiv Lal was charged for the offence punishable under Section 302 IPC read with 109 IPC. All of them pleaded innocence and claimed to be tried.
7. The prosecution case rests mainly on the eye witness account of the ocular witnesses. The prosecution examined six purported eye witnesses, namely, PW4 Khem Chand, PW6 Om Parkash (complainant), PW7 Manohar Lal, PW8 Mahesh Kumar, PW9 Chain Sukh and PW12 Kaushalya Devi, wife of the deceased. Out of those, PW4 Khem Chand, PW6 Om Parkash (complainant) and PW9 Chain Sukh turned hostile and did not support the case of the prosecution at all. PW7 Manohar Lal is also a partly hostile witness. He has, however, supported the case of the prosecution on the aspect of the knife wound inflicted by Crl.A.No.271/1994 Page 4 of 15 the appellant to the deceased by stating that the appellant Surinder stabbed the deceased Hari Singh @ Kallu in his presence. He denied having any knowledge as to whether the appellant left the knife at the spot or took away the knife with him.
8. PW12 Kaushalya Devi and PW8 Mahesh Kumar have supported the prosecution case. PW12 Kaushalya Devi in her evidence stated that on 07.04.93 at about 3:30 pm, she was sitting on the "Chabutara" at Nawab Road when Daya Chand and deceased came with some iron pieces. Daya Chand went inside with the goods brought by them and, in the meanwhile, appellant Surinder came and caller her husband. They started talking and the appellant suddenly struck his head against the head of the deceased. Thereafter, the appellant locked the neck of the deceased in his armpit and inflicted two or three knife blows on his chest. She ran towards her husband and saved him, but the appellant ran away after inflicting the injuries. She attended to her husband. In the meanwhile, PW8 Mahesh Kumar reached there, who hired a scooter, and with the help of Mahesh she managed to put her husband in the scooter and took him to Ram Manohar Lohia Hospital. The witness identified the blood-stained shirt and "baniyan" (vest) of her husband Exhibits P-2 and P-3, which he was wearing at the time of incident. She also identified his pant and underwear Exhibits P-4 and P-5. Witness stated that her clothes were also stained with blood of her husband, but those were not seized by the police. PW8 Mahesh Kumar also deposed in an almost similar manner.
Crl.A.No.271/1994 Page 5 of 15
9. The defence taken by the appellant in his statement under Section 313 Cr.P.C. was complete denial. According to him, he was falsely implicated by the relatives of the deceased only on the basis of suspicion. He did not produce any witness in his defence.
10. The learned Additional Sessions Judge did not find sufficient evidence to bring home the guilt of co-accused Lakhpat and Shiv Lal and acquitted them of charges levelled against them. The learned Trial Court, however, relying upon the eye witness account given by PW12 Kaushalya Devi and PW8 Mahesh Kumar, found the appellant guilty of causing death of the deceased Hari Singh by stabbing him with a knife and convicted him under Section 302 IPC as also Section 27 of the Arms Act and sentenced him accordingly in terms of the order on sentence dated 31.10.1994.
11. Learned counsel for the appellant has submitted that the prosecution case is based upon the eye witness account given by the ocular witnesses. Six purported eye witnesses were examined by the prosecution to bring home the guilt of the accused, out of them four namely, PW4 Khem Chand, PW6 Om Parkash (complainant), PW7 Manohar Lal and PW9 Chain Sukh have not supported the case of the prosecution. Only eye witnesses who have supported the prosecution case are PW8 Mahesh Kumar and PW12 Kaushalya Devi and their testimonies also do not inspire confidence because of following reasons.
Crl.A.No.271/1994 Page 6 of 15
12. It is contended that PW8 Mahesh Kumar is not a reliable witness and his presence at the spot of occurrence is doubtful, because from the record it is apparent that his statement under Section 161 Cr.P.C. was recorded by the Investigating Officer on 09.04.1993 though the incident took place on 07.04.1993. Learned counsel has pointed out that PW8 has admitted in his cross-examination that on the day following the day of incident, he had himself gone to the police station and he also stated that he had gone to collect the dead body of the deceased from the mortuary, but his statement was not recorded by the police. There is no explanation forthcoming on the record as to why the statement of this witness was not recorded earlier despite the fact that he met the police twice on 08.04.1993 and thus it is urged that a possibility cannot be ruled out that PW8 Mahesh Kumar was not an eye witness and he has been subsequently introduced as a witness to falsely implicate the appellant.
13. We find no merit in this contention. The recording of the statement of the witness during investigation is in the hands of Investigating Officer and if he was not prompt in recording the statement under Section 161 Cr.P.C., this, by itself, cannot be taken as a reason to suspect the testimony of the witness, which otherwise appears to be reliable. We may note that FIR Ex.PW 2/B pertaining to this case was registered promptly on 07.04.93 at 4:25 pm at the Police Station Sadar Bazar, wherein the appellant was named as culprit. This FIR was registered on the basis of statement of PW7 Manohar Lal, who Crl.A.No.271/1994 Page 7 of 15 claimed to have seen the occurrence, therefore, there was neither any necessity nor any occasion for the Investigating Officer to introduce PW8 Mahesh Kumar as a witness in the case unless he actually was the witness to the occurrence.
14. Learned counsel for the appellant has further submitted that even the presence of PW12 Kaushalya Devi at the time of occurrence is highly doubtful because, on the one hand, she claims that she saw the occurrence and took her husband to the hospital and, on the other hand, as per the prosecution case her statement Ex.PW12/DA under Section 161 Cr.P.C. was recorded after a lapse of nine days on 16.04.1993, for which delay there is no explanation on record. He has also submitted that according to PW12 Kaushalya Devi, her clothes were stained with the blood of her husband, but those clothes have not been seized by the police, which circumstance also raises a strong doubt that she actually was not present at the time of occurrence and her version, to the effect that she saw the incident and after the incident she took her husband to the hospital, is not reliable.
15. We are not persuaded by the argument advanced by the appellant. Perusal of the MLC of the deceased Ex.PW1/A reveals that the deceased was brought to Ram Manohar Lohia Hospital on 07.04.1993 at around 3:45 pm by Kaushalya Devi. This by itself gives an assurance that Kaushalya Devi was present at the time of occurrence. So far as the delay in recording of statement of Kaushalya Crl.A.No.271/1994 Page 8 of 15 Devi under Section 161 Cr.P.C. by the Investigating Officer is concerned, we are of the view that she cannot be faulted for the same and it cannot be taken as a reason to discard her otherwise reliable testimony.
16. Learned counsel for the appellant has further submitted that PW8 Mahesh Kumar and PW12 Kaushalya Devi have made improvements in their testimony in court and their evidence in the court is at variance with their statements recorded under Section 161 Cr.P.C. Learned counsel for the appellant has pointed out that both these witnesses in their statements under Section 161 Cr.P.C. had referred to the earlier incident involving the deceased and co-accused Lakhpat, but they did not say even a single word about that incident and their testimony is confined only to the period of the incident of stabbing, which took place on 07.04.1993 at 3:30 pm. He has further pointed out that these witnesses in their statements under Section 161 Cr.P.C. have only stated about the appellant inflicting knife wounds to the deceased, whereas in their testimony in court, they have improved upon that version by stating that the appellant hit the deceased on the head with his head and thereafter he locked the neck of the deceased in his armpit and stabbed him with the knife two or three times on the chest, which reflected upon the interestedness of the witnesses and makes their testimony doubtful. The improvements/variations pointed out by learned counsel for the appellant in the evidence of PW8 Mahesh Kumar and PW12 Kaushalya Devi vis-a-vis their statements recorded Crl.A.No.271/1994 Page 9 of 15 under Section 161 Cr.P.C., in our considered view, are inconsequential and are not so material so as to cast a doubt on the version of the witnesses, which is consistent and is also corroborated by the medical evidence. While appreciating the evidence, the court is not required to do word splitting. It is required to carefully go through the evidence and read it as a whole and on such reading if the evidence appears to be consistent and trustworthy, then minor infirmities here and there should not come in the way of placing reliance upon the evidence.
17. We may note that even the testimony of hostile witnesses PW6 Om Parkash and PW7 Manohar Lal also tend to corroborate the version of PW8 Mahesh Kumar and PW12 Kaushalya Devi. PW6 Om Parkash in his examination-in-chief has stated that on 07.04.1993, he was sitting at a cot on Nawab Road in front of his house along with some persons. Chain Sukh (PW9) was also there. At about 3:30 pm, he heard the noise of a quarrel, which was between Kallu @ Hari Singh (deceased) and Surinder @ Bittoo (appellant) and he heard that Surinder accused had stabbed the deceased Hari Singh and ran away. The aforesaid version of PW6 Om Parkash has not been challenged by the appellant in the cross-examination. As a matter of fact, no cross-examination on the said aspect was done. Said version of PW6 Om Parkash is relevant under Section 6 of the Evidence Act, in particular illustration (a), as it speaks about the reaction of the bystanders at the spot of occurrence immediately after the occurrence, which reads thus: Crl.A.No.271/1994 Page 10 of 15
"Section 6. Relevancy of facts forming part of same transaction.- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact."
18. Similarly, PW7 Manohar Lal, though he is hostile on the aspect of the incident which took place earlier in the morning and the recovery of knife at the instance of accused Lakhpat, has supported the prosecution version regarding the main incident by stating that on 07.04.1993, appellant Surinder stabbed the deceased Hari Singh @ Kallu in his presence and thereafter Mohalla people and wife of the deceased took him to the hospital. He stated that he also accompanied them to the hospital. Said version does corroborate the version of PW8 Mahesh Kumar and PW12 Kaushalya Devi. Therefore, we find no reason to doubt the testimony of PW8 Mahesh Kumar and PW12 Kaushalya Devi.
19. The next submission on behalf of the appellant is that no reliance should be placed upon the evidence of PW8 Mahesh Kumar and PW12 Kaushalya Devi as it is inconsistent with the scientific evidence. Learned counsel for the appellant has submitted that as per PW8 Mahesh Kumar and PW12 Kaushalya Devi, the appellant inflicted two/three stab wounds with the knife on the person of the deceased, Crl.A.No.271/1994 Page 11 of 15 which version is belied by the post mortem report Ex.PW11/A, wherein there is mention of five injuries found on the body of the deceased.
20. On perusal of the post mortem report Ex.PW11/A, it transpires that there were following five injuries found by Dr. L.T. Ramani, PW11 on the body of the deceased:
"1. An incised wound 2cm. X 1 cm. X ? vertically placed on the left side of chest wall in the anterior axillary line, 13 cm. below the arm pit. The upper end of the injury was acutely cut.
2. An incised wound 1.2 cms. X 0.5 cm. X ? vertically placed on the left lateral chest wall in posterior axillary line, 6 cms. behind injury No. 1, upper end of the injury was acutely cut.
3. An incised stab wound 3.5. cms. X 2 cms. X ? placed vertically on the lower part left side chest wall in mid-axillary line. Upper end of the wound was more acutely cut.
4. A triangular abrasion 0.5 cms. X 0.3 Cms. on the right side of front of chest 6 cms. medial to right nipple.
5. Small abrasion 0.5 cms. X 0.5 cms. on the right elbow."
21. It can be seen that out of five injuries found on the person of the deceased, three injuries No.1 to 3 are incised wounds and remaining two injuries No.4 and 5 are abrasions. Thus, we find no conflict in the testimony of the witnesses to the effect that the appellant gave two or three knife wounds to the deceased vis-a-vis the post mortem report Ex.PW11/A, which also speaks of only three incised wounds, which injuries, as per Dr. L.T. Ramani, could have been caused by the knife Ex.P-1.
22. It is also submitted on behalf of the appellant that there is a conflict between the ocular testimony of PW8 Mahesh Kumar and PW12 Crl.A.No.271/1994 Page 12 of 15 Kaushalya Devi and the CFSL report Ex.PW19/G inasmuch as that as per the witnesses, the appellant inflicted only two/three knife wounds on the person of the deceased, which implies that there should have been maximum three cuts corresponding to the stabs inflicted on the shirt of the deceased, whereas as per the CFSL report Ex.PW19/G there were five cuts on the shirt which casts a strong doubt on the credibility of the witnesses.
23. We do not find any substance in the above contention. It is seen from the CFSL report Ex.PW19/G that besides the shirt, the vest of the deceased was also sent for CFSL examination and there were only three cuts on the vest, which is consistent with the ocular version given by Mahesh Kumar(PW8) and Kaushalya Devi (PW12). We may note that the shirt is generally a loose fitted apparel. Therefore, a possibility cannot be ruled out that one or more knife blows might have pierced through some loose fold of the shirt worn by the deceased, resulting in more than one cut on the shirt caused by a single knife stab. This explains the presence of five cuts on the shirt of the deceased. Thus, we do not find any conflict in the testimony of the eye witnesses vis-a- vis the CFSL report. As a matter of fact, the CFSL report corroborates the version of the above referred two witnesses.
24. Lastly, it was argued on behalf of the appellant that even if for the sake of argument, the prosecution case is taken to be true, then also there was no justification for conviction of the appellant under Crl.A.No.271/1994 Page 13 of 15 Section 302 IPC because as per the evidence on record, the stabbing was preceded by an altercation between the appellant and the deceased. Therefore, at best it is a case of an act committed in the heat of moment without premeditation in a sudden fight upon a sudden quarrel, as such, the learned Trial Court ought to have extended the benefit of Exception 4 to Section 300 IPC to the appellant and the appellant should have been convicted under Section 304 IPC for the offence of culpable homicide not amounting to murder.
25. There is no merit in the argument. As per the post mortem report Ex.PW11/A, three knife wounds were inflicted on the left side of the chest of the deceased, which is a vital part of the body. PW11 Dr. L.T. Ramani, who conducted the post mortem, has opined that all of those three injuries were sufficient to cause death individually as well as collectively. From the medical evidence, it is established that the appellant had stabbed the deceased on the vital part of his body not only once but thrice. From this, it can be safely inferred that there was an intention on the part of the appellant to cause death of the deceased or to inflict such injury which, in the ordinary course of nature, was sufficient to cause death. PW8 Mahesh Kumar and PW12 Kaushalya Devi have categorically stated that the appellant came armed with a knife and stabbed the deceased three times which, by itself, is sufficient to draw an inference that the appellant had come to the spot of occurrence with a clear intention to cause his death and, by no stretch of imagination, it can be said that the act of the appellant Crl.A.No.271/1994 Page 14 of 15 was committed without any premeditation in the heat of passion as a consequence of a sudden fight. Therefore, Exception 4 to Section 300 is not attracted in this case and, in our view, the learned Trial Court was right in convicting the appellant for the offence of murder punishable under Section 302 IPC.
26. The result of above discussion is that we find no infirmity in the impugned judgment. The learned Trial Court has rightly relied upon the testimony of PW8 Mahesh Kumar and PW12 Kaushalya Devi, which is consistent and has a ring of credibility around it. Otherwise also, there is nothing on record to show as to why the above witnesses would depose falsely against the appellant and allow the real culprit to go scot free. Thus, we conclude that the learned Trial Court has rightly convicted the appellant under Section 302 IPC.
27. The appeal is devoid of merit and is accordingly dismissed.
28. Appellant is on bail. His bail bond and surety bond stand cancelled. Appellant be taken into custody to undergo the remaining sentence.
AJIT BHARIHOKE, J.
DECEMBER 15 , 2009 SANJAY KISHAN KAUL, J.
pst
Crl.A.No.271/1994 Page 15 of 15