* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on : September 3, 2009
Judgment delivered on : September 7, 2009
+ CRIMINAL APPEAL NO.212/1996
KIRPA SHANKAR ..... Appellant
Through:Mr.Sumeet Verma, Advocate/
Amicus Curiae.
Versus
STATE ..... Respondent
Through:Mr.Pawan Sharma, APP.
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. Appellant Kirpa Shankar has been convicted for an offence punishable under Section 302 IPC in Sessions Case No.47/1991 arising out of FIR No.88/1991 registered at Police Station Model Town, Delhi for having committed murder of Mohinder Singh and sentenced to undergo imprisonment for life and also to pay a fine of Rs.500/-, in default, to undergo RI for a period of six months. Crl.A.212/1996 Page 1 of 8
2. Briefly stated, case set up by the prosecution is that on 10 th May 1991 the appellant Kirpa Shankar had gone to see night show at Vijay Cinema along with his co-accused Rakesh and Zafar Ali. Mohinder Singh and PW-5 Abdul Aziz had also gone to see the night show at Vijay Cinema. During the interval, some talks took place between the appellant and the deceased Mohinder Singh. After the show was over, the appellant Kirpa Shankar, Mohinder Singh deceased and PW-5 Abdul Aziz left the cinema hall on a two-wheeler scooter No.DEU 4569. When they reached at a distance of 150 yards near the petrol pump, appellant raised a demand of Rs.4,000/- from the deceased and forced them to stop the scooter. Meanwhile, his accomplices Zafar Ali and Rakesh also arrived. It is stated that Kirpa Shankar warned PW-5 Abdul Aziz to stay near the scooter and he along with Zafar Ali and Rakesh took the deceased to the left side of the road. Appellant Kirpa Shankar asked the deceased to return his 4000/- rupees failing which he threatened to kill him. Deceased protested that he owed no money to the appellant. Thereafter, at the instance of appellant Kirpa Shankar, Zafar Ali and Rakesh caught hold of the deceased and the appellant Kirpa Shankar gave 3 or 4 chhuri blows to the deceased. As a result of chhuri blows, deceased fell down and all the three accused including the appellant Kirpa Shankar fled away towards Lal Bagh. PW-5 Abdul Aziz took the deceased to Hindu Rao Hospital in a three- wheeler scooter where he was declared brought dead. Crl.A.212/1996 Page 2 of 8
3. It is alleged that PW-5 Abdul Aziz before taking the deceased to the hospital also informed police control room about the incident. Pursuant to the information, ASI Ram Kumar along with one Constable reached at the spot of occurrence and found that the injured had already been removed to the hospital. He, thereafter, contacted Abdul Aziz and recorded his statement Ex.PW-5/A and sent it to the police station for registration of the formal FIR.
4. It was further alleged that on the pointing of Abdul Aziz, appellant Kirpa Shankar as well as his co-accused Rakesh and Zafar Ali were arrested from the park C-Block, Industrial Area, Wazir Pur. On interrogation, they made disclosure statement. Appellant Kirpa Shankar in his disclosure admitted having committed the murder and stated that he had concealed the weapon of offence i.e. chhuri in the corner of the park. Thereafter, he led the police party to a corner of C-Block park and got the chhuri recovered. The sketch of the chhuri was prepared. It was sealed and taken into possession. The blood stained clothes of the appellant were also taken into possession and the case property was deposited in the malkhana. After completing necessary formalities of investigation, charge sheet against the appellant and his other co-accused was submitted in the Court.
5. Appellant Kirpa Shankar and his co-accused were charged for offence punishable under Section 302 IPC read with 34 IPC. All of them pleaded not guilty and claimed to be tried.
Crl.A.212/1996 Page 3 of 8
6. Accused Rakesh Kumar died during the pendency of the trial. Learned trial Judge found that involvement of Zafar Ali in the commission of crime was doubtful. He accordingly acquitted him giving him benefit of doubt. Appellant Kirpa Shankar, however, was convicted under Section 302 IPC.
7. The impugned order of conviction mainly rests upon the eye witness account of the occurrence given by PW-5 Abdul Aziz and purported recovery of the weapon of offence i.e. chhuri Ex.P-2 and the blood stained clothes of the appellant at his instance. It may be pointed out that PW-5 Abdul Aziz is also the witness to the aforesaid recovery of incriminating articles.
8. Learned counsel for the appellant has submitted that the impugned judgment is based on sole testimony of PW-5 Abdul Aziz who is not a reliable witness. He has submitted that witness Abdul Aziz claims himself to be a friend of the deceased but his version is belied by the MLC Ex.PW-13/A. It is PW-5 Abdul Aziz who had taken the deceased to the hospital. However, in the column of the description of the deceased, his name, parentage and the address are shown as `unknown'. He has pointed out that similarly even DD No.21-A dated 10-11/5/1991 Ex.PW-10/A also records that the Duty Constable, Hindu Rao Hospital had conveyed information to the police station on telephone that a person aged 25 years with name, address and parentage not known was brought in injured condition by Abdul Aziz. It is argued that had the deceased been his friend, Crl.A.212/1996 Page 4 of 8 the witness PW-5 Abdul Aziz would definitely have disclosed the name of deceased Mohinder Singh at the time of preparation of the MLC. It is also pointed out by learned counsel for the appellant that even the alleged history detailing the cause of injuries suffered by the deceased is not mentioned in the MLC which leads to an inference that PW-5 Abdul Aziz had not seen the actual occurrence but he happened to come across the injured after the occurrence and brought him to the hospital.
9. Learned counsel for the State, on the other hand, has supported the conclusion arrived at by the learned trial Judge. He, however, has not been able to explain as to how the deceased came to be described in the MLC as `unknown', s/o `unknown', resident of `unknown' .
10. We have considered the submissions made by respective parties and perused the material on record.
11. The entire case of the prosecution rests mainly upon the testimony of PW-5 Abdul Aziz who is claimed to be the eye witness to the occurrence as also the witness to the recovery of the weapon of offence i.e. chhuri Ex.P-2. PW-5 Abdul Aziz has stated that on the fateful night, he had gone to see the movie at Vijay Cinema along with his friend Mohinder Singh on the scooter of Mohinder Singh. He has also stated that after movie, the appellant Kirpa Shankar joined them and they proceeded from the cinema hall on the two-wheeler Crl.A.212/1996 Page 5 of 8 scooter of Mohinder Singh. After they had moved about 150 yards from the cinema hall, Kirpa Shankar asked Mohinder Singh to stop the scooter and, thereafter, he took him aside to a distance of 6-7 paces and demanded Rs.4000/- from him. In the meanwhile, he was also joined by his co-accused Rakesh and Zafar Ali. Mohinder Singh protested that he did not owe any money to the appellant and on this at the instance of appellant Kirpa Shankar, Zafar Ali caught hold of Mohinder Singh and he stabbed Mohinder Singh twice or thrice with a chhuri which blows ultimately proved to be fatal. If this version of the witness is to be believed, then he was well- acquainted with the deceased. Had the aforesaid version been true, in all probabilities PW-5 Abdul Aziz would have given the particulars of the deceased at the time of his admission in the hospital when the MLC Ex.PW-13/A was recorded. The description of the deceased in the MLC Ex.PW-13/A as `unknown', s/o `unknown', resident of `unknown' leads us to the inference that the deceased was not previously known to Abdul Aziz. Not only this, even no history of cause of injury to the deceased is recorded in the MLC Ex.PW-13/A. Had PW-5 Abdul Aziz actually witnessed the occurrence, he definitely would have given the history of injuries caused to the deceased as due to stabbing and that history would have found mention in the MLC. Non mention of the identity of the deceased as well as history of cause of injuries suffered by the deceased in the MLC Ex.PW-13/A raise a strong doubt that neither PW-5 Abdul Aziz was a friend of the deceased nor he was the witness of the occurrence. A possibility cannot be ruled out that PW-5 Abdul Aziz Crl.A.212/1996 Page 6 of 8 by chance came across the deceased lying in injured condition at the spot of occurrence and brought him to the hospital for treatment. We, therefore, find it difficult to accept the testimony of PW-5 Abdul Aziz being unreliable.
12. The other important factor which persuaded the learned Trial Judge to return finding of conviction against the appellant is the recovery of weapon of offence i.e. chhuri Ex.P-2 at the instance of the appellant. PW-5 Abdul Aziz is again the star witness of the prosecution to prove the recovery of weapon of offence at the instance of the appellant. He has stated in his testimony that the appellant Kirpa Shankar made a disclosure statement Ex.PW-5/F that he could get the chhuri recovered and pursuant to that he got it recovered from a park under the bushes. He also proved the sketch of chhuri Ex.PW-5/D and the pointing out-cum-recovery memo Ex.PW-5/E and stated that he appended his signatures on these exhibits as witness. Once we have concluded the testimony of PW-5 Abdul Aziz in respect of the occurrence is unreliable, we find it unsafe to rely upon his testimony regarding the disclosure statement made by the appellant leading to recovery of chhuri Ex.P-
2. The other witnesses to the disclosure statement and the recovery of weapon of offence are police officials who obviously are the witnesses interested in the success of the case. Thus, we do not deem it safe to rely upon their testimony and we feel that this is a fit case in which benefit of doubt should have been extended to the appellant Kirpa Shankar.
Crl.A.212/1996 Page 7 of 8
13. In view of the discussion above, the impugned judgment of conviction and consequent order on sentence cannot be sustained. The appeal is, therefore, accepted and the appellant is acquitted.
14. Appellant is on bail. His bail-cum-surety bonds are cancelled.
AJIT BHARIHOKE, J.
September 07, 2009 SANJAY KISHAN KAUL, J.
Ks
Crl.A.212/1996 Page 8 of 8