* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 31.08.2009
% Date of decision : 07.09.2009
+ CRL. A. No. 157 of 1994
RAJ KUMAR ... ... ... ... ... ... ... APPELLANT
Through : Ms. Nandita Rao, Advocate.
-VERSUS-
STATE (DELHI ADMINISTRATION) ... ... ... RESPONDENT
Through : Mr. Sunil Sharma, Advocate.
CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes
SANJAY KISHAN KAUL, J.
1. The appellant and the deceased, Maina were both residents of a jhuggi cluster in Motia Khan, Pahar Ganj, Delhi. The appellant is alleged to have inflicted multiple stab wounds with a knife on the deceased while she was sitting on a cot outside her jhuggi at 6.45 p.m. on 12.09.1992, while she was cleaning pulses and rice. The appellant is alleged to have been shouting that the _____________________________________________________________________________________________ CRL. A. No. 157 of 1994 Page 1 of 13 deceased had killed his son Deepu and, thus, he would not leave her alive, whereafter the knife wounds were inflicted. The appellant thereafter started running from the spot towards his jhuggi and is alleged to have thrown the knife in a public urinal whereafter he ran away. The deceased was taken to the main road by Rattan Lal, PW - 3 and others where an ambulance van was present. A.S.I. Sri Krishan removed her to RML Hospital where she was declared brought dead. The appellant is also stated to have approached the ambulance on account of injuries sustained by him and was simultaneously removed to the hospital. A statement of PW - 3 was recorded and thereafter the FIR was registered under Section 302 of the Indian Penal Code (for short, 'IPC') and the appellant was arrested. On completion of investigation, the appellant was charged with offences under Section 302 of the IPC and under Section 27 of the Arms Act. The appellant pleaded not guilty and prayed for trial. In terms of the judgment dated 18.05.1994 and the order of sentence dated 20.05.1994, the appellant was found guilty of offences under Section 302 of the IPC as also under Section 27 of the Arms Act and sentenced to undergo life imprisonment and pay a fine of Rs.5,000/- under Section 302 of the IPC and to undergo rigorous imprisonment of one year under Section 27 of the Arms Act. The appellant, thus, preferred the present appeal. _____________________________________________________________________________________________ CRL. A. No. 157 of 1994 Page 2 of 13
2. The undisputed fact is that the son of the appellant died about eight months prior to the incident and it was the belief of the appellant that he was murdered by the deceased. This is stated by the prosecution to be one of the motives for the crime apart from a dispute about water supply through a tap for which the payment was not made by the appellant and, thus, the deceased was alleged to be not permitting the appellant and his family to take water from the tap.
3. The case of the prosecution is based on occular evidence of the complainant PW - 3, PW - 2 and PW - 5. The facts leading to registration of the FIR and its investigation have been explained by the prosecution thus : H.C. Ram Bahadur Singh, PW - 10 was the duty officer at P.S. Pahar Ganj on 12.09.1992 when a call was received from an unknown person at about 7 p.m. and DD No. 20A (Exhibit PW - 10/E) was recorded to the effect that a quarrel was going on at Motia Khan. The DD was marked to A.S.I. Jia Ram, PW - 14, who went to the spot of jhuggi No. 580 and found that a blood-stained saree of Maina was lying there and blood was spread on the ground. Rice and pulses were found scattered and he was informed that the injured had been removed to the RML Hospital. A.S.I. Jia Ram went to the Hospital where he met S.I. Rajinder Singh and S.H.O. J.L. Sawhney. S.I. Rajinder Singh produced the MLC of the appellant and the deceased. _____________________________________________________________________________________________ CRL. A. No. 157 of 1994 Page 3 of 13 The statement of Rattan Lal (Exhibit PW - 3/A) was recorded and the rukka (Exhibit PW - 10/A) was sent for registration of the case through Constable Salim Ahmed whereafter FIR No. 431/1992 was registered (Exhibit PW - 10/B).
4. A.S.I. Jia Ram subsequently went to the spot and got it photographed. S.H.O. took over the investigation and blood samples were lifted along with the blood-stained earth, scattered rice and pulses and blood-stained dhoti. The blood-stained shirt of Rattan Lal was also taken into possession by the S.H.O. The appellant was brought to the spot and made a disclosure statement (Exhibit PW - 3/D) and led the police party to the urinal at D.B.G. Road from where the knife was recovered. A carbon copy of the site-plan prepared by the SHO J.L. Sawhney, PW - 19 is Exhibit PW - 19/H and the scaled site-plan prepared subsequently on the basis of the visit made on 02.11.1992 is Exhibit PW - 1/A.
5. PW - 3 is the principal eye-witness to the incident, who has stated that he knew the appellant and the deceased as they were living in the same neighbourhood. The said witness was inside the jhuggi when he heard the voice of the appellant saying that since the deceased had got his son killed, the appellant would not spare her and thereafter he heard a voice of the deceased that the appellant had stabbed her. It is at that stage that the _____________________________________________________________________________________________ CRL. A. No. 157 of 1994 Page 4 of 13 witness came out and saw the appellant holding a knife in his right hand and gave one knife blow on the right side of the shoulder of the deceased and ran away from the spot and the appellant is stated to have fallen down while being chased by other persons, but managed to escape and threw the knife near the urinal by the bus stand while running towards the police station. PW - 3 called up the police from the public booth and returned to the spot at which stage the deceased was lifted and brought outside on the main road from where the van took her to the hospital. The appellant is stated to have gone himself to the police station and was also in the same vehicle, which took them to the hospital. The motive stated by the said witness is the same as explained hereinbefore. The witness took part in the inquest proceedings and further stated that the appellant had stabbed the deceased three times in his presence. The son and husband of the deceased are stated not to have come personally to collect the dead body as the husband was blind and the son was sick on the said day. However, the last rites were performed by the husband and son of the deceased. The other eye-witness is PW - 2, Guddo, who lived in front of the jhuggi of the deceased and saw the whole incident. She claimed that she became so nervous on seeing the incident that she fell unconscious. She, however, further stated that there _____________________________________________________________________________________________ CRL. A. No. 157 of 1994 Page 5 of 13 was a general rumour in the neighbourhood that the deceased had got the son of the appellant killed and made it a case of suicide. She also referred to another rumour in the neighbourhood that the husband of the deceased Omi Lal had murdered the deceased because of Rattan Lal and falsely implicated the appellant because of personal animosity with the deceased.
6. The deposition of PW - 5, Bimla, who was watching a film in the neighbourhood and came out on hearing the noise, establishes that she saw PW - 3 chasing the appellant, the deceased was lying on the floor with the blood oozing out of her and on seeing the deceased, she also became nervous and unconscious. She also referred to the dispute about the water from the tap.
7. PW - 18, Jagbir Singh, Record Clerk of RML Hospital, appeared in the witness box as PW - 18 and proved the MLC prepared by Dr. Nalin Sinha. Dr. Alpana Sinha, who conducted the post-mortem of the deceased and prepared the report (Exhibit PW - 20/A), appeared in the witness box as PW - 20. She opined that the cause of death was shock due to hemorrhage from the stab wound on the lung caused by external injury No. 6. Injuries No. 5 and 6 were stated to be caused by a sharp- pointed cutting weapon and injury No.6 was sufficient in the ordinary course of nature to cause death. _____________________________________________________________________________________________ CRL. A. No. 157 of 1994 Page 6 of 13
8. We may notice at this stage that the blood-stained shirt of PW - 3, clothes of the deceased as well as the knife was sent to CFSL for analysis. The blood group of the deceased was 'B', which was found both on the shirt of PW - 3 and on the knife.
9. Learned counsel for the appellant sought to contend that the case of the prosecution was really based on the sole eye-witness testimony of PW - 3 since PW - 2 and PW - 5 both claimed that they had fainted and the testimony of PW - 3 is stated to be full of contradictions. In this behalf, it has been urged that though the appellant is alleged to have killed the deceased with a knife, post- mortem report reveals injuries by three objects - (i) sharp-cutting object resulting in four wounds; (ii) pointed- sharp cutting object resulting in two wounds; one of which was fatal and (iii) a blunt object.
10. In respect of the aforesaid plea, we really see no contradiction because if the edge of the knife is used, it would cause a sharp cut, while if the head of the knife would be used, it would cause a pointed sharp cut. The blunt injury could be with some act with the back of the knife or otherwise in the process of attack and fall.
11. Learned counsel for the appellant also pleaded that PW -
3 is an interested witness and it is his clothes, which were blood-stained and the knife was recovered through _____________________________________________________________________________________________ CRL. A. No. 157 of 1994 Page 7 of 13 him. It is alleged that PW - 3 was really the paramour of the deceased.
12. If the testimony of PW - 3 is read as a whole, we find no contradiction. There is nothing, which prevents the testimony of even an interested witness to be relied upon so long as it is consistent and trustworthy. The blood- stained clothes of PW - 3 were a direct result of handling the body of the deceased and carrying her to the main road. The recovery of the knife was on the disclosure statement of the appellant, though the testimony of PW - 3 also supports the factum of the appellant throwing the knife away since initially PW - 3 chased the appellant. Otherwise also, the testimony of PW-3 is corroborated by PW-2, Guddo, who has also witnessed the stabbing as also PW-5 who saw the appellant running away and being chased by PW-3, as is apparent from this version detailed hereinbefore.
13. A further aspect relied upon by learned counsel for the appellant is that the conduct of the accused in himself going towards the police station and getting on the ambulance is inconsistent with the conduct of a person, who has murdered another person and is running away from the site. In this behalf, it may be noticed that the appellant had fallen as deposed by PW - 3 and had injured himself and was running in the straight direction, which went towards the police station. The appellant _____________________________________________________________________________________________ CRL. A. No. 157 of 1994 Page 8 of 13 having been injured wanted to be taken to the hospital for treatment. This fact by itself would not absolve the appellant of the crime.
14. Learned counsel for the appellant also sought to attack the motive since the incident about the death of the son of the deceased occurred more than eight months before and the appellant had not implicated the deceased for the death of his son. In our considered view, the fact remains that the testimony of occular witnesses shows that there was a grudge held by the appellant as he perceived a role of the deceased in the death of his son. It appears that the same continued to trouble the mind of the appellant and on the fateful day something appears to have snapped to cause the appellant to take the extreme step of stabbing the deceased.
15. Learned counsel for the appellant referred to the judgment in Toran Singh v. State of M.P., (2002) 6 SCC 494 to contend that a prosecution case should rest on its own strength and not on the absence of explanation of plausible defence by the accused. A reading of the judgment, however, shows that what weighed with the Supreme Court was that there were material contradictions and omissions in the statement of witnesses, which indicated serious infirmities and improbabilities of the prosecution case giving rise to _____________________________________________________________________________________________ CRL. A. No. 157 of 1994 Page 9 of 13 grave doubt. In the present case, we find really no such contradiction if the testimonies are read as a whole.
16. Learned counsel for the appellant had also referred to the judgment in Ramji Surjya Padvi & Anr. v. State of Maharashtra, (1983) 3 SCC 629 to contend that where there is only a sole eye-witness to the crime, conviction may be recorded against the accused concerned provided the court, which hears such witness, regards him as honest and truthful, but prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against whom some motive or ill-will is suggested. Once again, there is no doubt about this abstract proposition but, in the present case, the testimony of PW - 3 is consistent and reliable. Not only that, it is not possible to ignore the testimony of PW - 2 and PW - 5, who were at the site. PW - 2 did faint, but saw the appellant inflicting blow on the deceased. PW - 5 saw the appellant running away with the knife from the site with PW-3 chasing him. The learned Trial Court has rightly noticed that in the cross-examination of PW - 2 she has stated that she became nervous on seeing the knife in the hand of the appellant and she could not speak out anything, but this did not mean that she had _____________________________________________________________________________________________ CRL. A. No. 157 of 1994 Page 10 of 13 not witnessed the occurrence of stabbing. Even PW - 5 in her examination-in-chief had supported the case of the prosecution to the extent of the identity of the appellant who was seen by her carrying a knife in his hand and the deceased Maina lying on the floor bleeding and this part of the statement could not be ignored simply because she had turned hostile. The trial court has rightly noticed that where a witness has found to have given unreliable evidence in regard to certain particulars, then the Court should scrutinize the rest of his evidence with care and caution and if the remaining evidence is trustworthy and the substratum of the prosecution case remains intact, then the Court should uphold the prosecution case to the extent it considers safe and trustworthy. Thus, there is, in our considered view, sufficient material to establish the guilt of the appellant beyond reasonable doubt.
17. It may further be noticed that the learned trial court has rightly arrived at a categorical finding that the injury caused by the appellant to the deceased was sufficient in the ordinary course of nature to cause death. The story set up by the appellant before the learned trial court that someone had given him a danda blow on his head by a person as a result of which he fell down has been belied by the learned trial court on the ground that the appellant was carried to the hospital along with the deceased in the same ambulance van and, therefore, it _____________________________________________________________________________________________ CRL. A. No. 157 of 1994 Page 11 of 13 was clear that he had not become unconscious on receiving of such injury and had someone hit him on his head, he would have tried to chase the said person and apprehend him. This is also clear from the fact that in the process of running away, the appellant fell down and received injuries on his head.
18. We may also notice that the learned trial court has rightly observed that non-availability of Bhagwan Dass, son of the deceased, would not adversely affect the case of the prosecution more particularly when the case of the prosecution is based on occular evidence and all the eye- witnesses had seen the appellant carrying a knife in his hand, either stabbing the deceased or running away with the knife from the spot.
19. The last aspect urged by learned counsel for the appellant is that the appellant has been in custody for a number of years. The incident, if at all it has occurred, is of a momentary anger and the appellant should not be sent back to incarceration.
20. The facts of the present case, however, show that the crime cannot be brought within the four corners of Section 304 Part II of the IPC. There was no immediate provocation. The appellant was troubled by some fact and at some stage decided to take law into his own hand to commit the crime. The case is clearly covered under the provisions of Section 300 of the IPC. The _____________________________________________________________________________________________ CRL. A. No. 157 of 1994 Page 12 of 13 consequence of such conviction has to result in at least a sentence of life imprisonment as the option of any lesser sentence is not available with the Court since the same has not been provided for by the Legislature.
21. We find the appeal without any merits and the same is dismissed. The appellant be taken into custody to undergo the remaining sentence.
SANJAY KISHAN KAUL, J.
SEPTEMBER 07, 2009 AJIT BHARIHOKE, J. madan
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