* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Appeal 504/1999
Reserved on: 8th November, 2010
Decided on: 4th February, 2011
GULZARI LAL ..... Petitioner
Through: Mr.G.B. Sewak, Amicus Curiae
versus
STATE ..... Respondent
Through: Mr. Manoj Ohri, APP for State
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Not necessary
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
MUKTA GUPTA, J.
1. By this appeal a challenge is laid to the judgment convicting the Appellant for offence punishable under Section 307 IPC and an order of sentence directing him to undergo Rigorous Imprisonment for four years and to pay a fine of `3,000/- and in default of payment of fine, to further undergo simple imprisonment for six months. On realization of the fine amount, `2,500/- was to be paid to the injured as compensation. Crl. A. 504/1999 Page 1 of 12
2. The prosecution case in brief is that on 2nd December, 1994 at 8:50 p.m. an information was received at Police Post Mianwali, Police Station Paschim Vihar vide D.D. No. 28, Ex.PW8/A that a fight has taken place at C-Block, Camp-4, Jawalapuri. PW8 HC Satish Chander along with PW9 Constable Ramesh Kumar reached the spot where accused Gulzari Lal had already been apprehended by PW7 HC Ravi Dutt and PW4 Constable Rajneesh who were on patrolling duty. Thereafter PW11, ASI Mahinder Singh also reached the spot. PW7 handed over one „Churi‟ to ASI Mahinder Singh and informed that the Appellant has injured one Vijay with this Churi who has been removed to DDU Hospital through PW9 who was accompanied by PW3 Preetam Singh, the brother of the injured. On reaching the hospital, the doctor declared the injured Vijay Singh fit for statement and at 10:15 p.m., PW11 recorded the statement of Vijay Singh Ex. PW2/A wherein he stated that he was working on contract basis in the factory of Horilal at R 241, Camp No. 5, Jawalapuri. The Appellant herein was also working as a labourer in the factory. However, his services were terminated as he was not working satisfactorily. He was re- employed after some time but again because of his non-performance, his services were terminated on 1st December, 1994. On that day i.e. 2nd December, 1994, he along with his brother Preetam Singh who was also working in the same factory were returning to their house and at about 8:40 Crl. A. 504/1999 Page 2 of 12 p.m. when they reached C-Block turning, they found the accused already present there. While the injured and his brother were passing through him, he came in front of them. The Appellant was armed with a Churi in his right hand and retorted the injured that he was removing him from service time and again and was not allowing him to work, so he would finish him. The Appellant attacked him with the Churi on his neck, backside of neck and his back. His brother intervened and tried to save him, in the meantime, two police officials reached the spot who overpowered the Appellant and apprehended him. They took the Churi in their possession. On this statement of the injured, ASI Mahinder Singh made an endorsement Exhibit PW11/A and case FIR No. 881/1994, Exhibit PW1/B under Section 307 IPC was registered at P.S. Pachim Vihar. After the completion of investigation, charge-sheet was filed. The learned Trial Court after recording of the prosecution evidence, statement of the Appellant under Section 313 Cr.P.C. and the defence evidence, convicted and sentenced the Appellant as mentioned above.
3. Learned counsel for the Appellant challenging the impugned judgment contends that PW2, the injured himself has made material improvements in his statement before the Court as regards the place of incident and the fact that they were returning to their home on a bicycle. No bicycle has been seized by Crl. A. 504/1999 Page 3 of 12 the police from the spot nor has any statement been made by the injured PW2 or PW3 Preetam his brother in this regard to the police. Though, the place of incident was a locality where a number of public persons were present however, no independent public witness has either been cited or examined as a witness to the incident. The conduct of PW 3 Preetam Singh, the brother of the injured is unnatural as after his brother Vijay Singh was injured he first left the bicycle at the factory of Hori Lal and then reached the hospital. He is not an eye-witness of the incident and has been planted as an eye witness. There are contradictions in the deposition of the witnesses and the site plan Ex. PW11/B. Though witnesses have stated that it was a residential area and street light was there, however the same has not been shown in the site plan. The injury received on the person of the Appellant has remained unexplained by the prosecution and thus a doubt is cast upon on the entire prosecution case. No incident took place at C-Block, as no blood was found on the spot though it is the case of the prosecution that the injured was bleeding profusely. No earth control has been seized from the spot. Thus, the place of occurrence is doubtful.
4. Learned counsel for the Appellant further contends that PW10 Dr. Ashok Acharya rendered the opinion on the nature of injuries to be "dangerous" without going through the entire case-sheet. Dr. Sunita Pandey Crl. A. 504/1999 Page 4 of 12 who had prepared the MLC has not been examined as a witness. No opinion has been sought from the doctor that the injuries on the person of the injured Vijay Singh were possible by the said weapon, that is, churi in the present case and hence the weapon which is seized in the present case cannot be said to be connected to the crime. The CFSL report Ex. PW11/C records that no human blood could be detected on the knife which also points out the fact that the said knife is not connected to the crime. Though, the witness has deposed that the Appellant inflicted two injuries on the victim, however, the MLC records three injuries on the person of Vijay Singh. It is stated that the Appellant has been falsely implicated in this case and in view of the material discrepancies in the prosecution case, he is entitled to be acquitted. The learned amicus curiae further prays that the Appellant is a poor man and was working as a tailor when his services were dispensed with and now he is doing petty odd jobs in his native place at Sikar, Rajasthan. He has undergone more than two years of sentence and in case this Court comes to the conclusion that the Appellant has been rightly convicted for the offence punishable under Section 307 IPC, his sentence be modified for the period of imprisonment already undergone.
5. Learned APP on the other hand contends that the testimony of injured Vijay Singh PW2 sufficiently proves the case of the prosecution beyond Crl. A. 504/1999 Page 5 of 12 reasonable doubt. Immediately after the incident, he had been admitted in the hospital. As per his MLC Ex. PW 10/A it is opined that the injured had received three injuries; on the right, left side of occipital region and right side of low back. Thus the injuries sustained on the right and left side of the occipital region has been considered to be one injury by the witnesses and thus they have deposed correctly. The Appellant was overpowered and apprehended on the spot and „Churi‟ recovered from him was blood-stained however, no blood group could be detected on the clothes and no opinion regarding the presence of human blood on the knife could be given as the blood had disintegrated. Also the testimony of the injured proves the motive for commission of the offence as it was due to the victim/injured that the Appellant had lost his job due to which the Appellant took revenge. Furthermore, the testimony of PW2 stands corroborated by the testimony of his brother Preetam PW3. The presence of PW3 is natural as both the brothers were working in the same factory and would be thus, returning back to his house together after completing their work from the factory. Non- joining of public witnesses at the spot of occurrence does not discredit the cogent testimony of PW2 and PW3. As regards the contention of the learned Amicus Curiae that there are material improvements in the testimony of the injured victim as regards the bicycle, it is contended by the learned APP that Crl. A. 504/1999 Page 6 of 12 they are not material improvement which would discredit the otherwise cogent evidence of PW2. The injuries on the person of the Appellant are minor abrasions on the eyes and right side of forehead and could have been caused during the scuffle at the spot. The fact that the Appellant was apprehended on the spot further stands proved by the MLC of the Appellant which was prepared at 11:25 on 2nd December, 1994 by Dr. Suneeta Pandey i.e. immediately after the incident thus, ruling out the possibility of any false implication. The injured was also admitted at DDU hospital immediately after the incident and he was declared fit for statement at 10.15 p.m. Thus the appeal deserves to be dismissed being devoid of merit.
6. I have heard the learned counsel for the parties and perused the record. PW2 Vijay Singh is an injured witness who has received stab injuries. The testimony of this witness not only proves the incident but also the motive on the part of the Appellant to harm the victim; as he exhorted by the Appellant that he was getting his services terminated every now and then. PW2 states that on 2nd December, 1994 when he was returning from duty at about 8:40 p.m., he was waylaid and inflicted injuries by the Appellant. PW2 in his cross examination stated that he was the one who was bringing work to be carried out in the factory and was responsible that the work should be done as per the specifications. Since, the Appellant did not work as per specifications, his Crl. A. 504/1999 Page 7 of 12 services were dispensed with. PW 3 and the Appellant were working as tailors whereas PW2 was the Contractor. Thus, the Appellant had a grudge against PW2.
7. The injuries on PW2 have been opined to be dangerous in the MLC Exhibit PW10/A. As per MLC Ex. PW10/A, the injuries received on the person of the Appellant are (i) CLW 3cm x 3cm right side of occipital region
(ii) CLW 3cm x 2cm left side of occipital region and (iii) Stab wound 3cm x 2cm right side of low back. Though PW10 Dr. A. Acharya has stated that he did not check the entire case sheet but this fact does not discredit his opinion because for rendering the nature of the injury each and every aspect in the case-sheet is not required to be looked into. It is the nature of injury, the size thereof, the part of body where it is caused and the possibility of the weapon by which it can be caused has to be looked into. Moreover PW12 Dr. R.P. Kaur has opined that as an expert she can also say that the injuries on the person of PW2 Vijay were dangerous in nature.
8. I also do not find any merit in the contention for the learned counsel for the Appellant that since the weapon of offence has not been shown to the doctor, the same cannot be connected with the offence. It is well settled that the weapon of offence can be connected to the injuries caused by either the opinion of the doctor that the injuries are possible by the said weapon or by Crl. A. 504/1999 Page 8 of 12 the witness identifying the weapon of offence from which the injuries are caused. In the present case both PW2 the injured and PW3 Preetam Singh have identified the churi. Also PW7 HC Ravi Dutt who reached the spot and apprehended the Appellant has also identified the churi Exhibit P-1 to be the same which was seized immediately on his apprehension. Thus the weapon of offence „churi‟ in the present case is connected with the injuries caused to PW2.
9. The injured PW2 has also identified his shirt and baniyan Ex.P2 and P3 respectively which as per CFSL report Ex.PW11/C are opined to contain human blood. The defence of the Appellant was that PW2 received injuries due to fall on a sharp object, PW12 Dr. R.P. Kaur in her cross examination has denied that the injury No.1 and 2 i.e., the injuries on the head of PW2 could be caused if someone falls on some sharp edged object. These evidences together are sufficient to further corroborate the cogent and convincing testimony of PW 2 the injured. The fact that a quarrel was going is mentioned in the first DD Entry No. 28 Ex. PW8/A. The Appellant has received abrasions. PW12 Dr. R.P. Kaur has stated in her cross examination that the abrasions suffered by the Appellant could have been caused by struggle. She has further stated bruises are caused by fist blows and not abrasions, thus demolishing the Appellants defence that he was beaten by HC Ravi Dutt. The Crl. A. 504/1999 Page 9 of 12 injuries being simple blunt, the non-explanation thereof by the prosecution is not fatal to the prosecution case. The law on the said issue is well settled as laid down in Sikander Singh vs. State of Bihar, JT 2010 (7) SC 637:
"29. Finally, the third question for consideration is as to what is the effect of non-explanation of injuries suffered by Appellant Sheo Jee Singh. It cannot be held as an unqualified proposition of law that whenever the accused sustains an injury in the same occurrence, the prosecution is obliged to explain the injury and on failure of the prosecution to do so, the prosecution case has to be disbelieved. In Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors: [JT 2001 (Suppl. 1) SC 415: (2001) 6 SCC 145], a Bench of three Judges of this Court, referring to earlier three-Judge Bench decisions, observed that before non- explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect prosecution case, the Court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of occurrence in question.
30. In our view, in the present case, having regard to the nature of the injuries allegedly suffered by the said Appellant, the case of the prosecution cannot be overthrown because of non- explanation of the said injuries. As per the medical report, the injuries allegedly suffered by Sheo Jee Singh were - 'swelling covering around the lower 1/3 of right upper arm just above right elbow and fracture of underlying bone'. The injuries are simple and superficial in nature. In view of the fact that the evidence against the Appellants for having committed the afore- stated offences has been found to be cogent and creditworthy, in our opinion, it outweighs the effect of the omission on the part of the prosecution to explain the injuries. We reject this ground as well."
Crl. A. 504/1999 Page 10 of 12
10. The fact that PW 3 first went to drop his bicycle at the factory and then reached the hospital cannot belie his version and lead to the inference that he was not present at the spot. The injured was being taken to the hospital in a rickshaw by PW4 Constable Rajneesh and thus PW3 immediately reached after dropping his bicycle. Thus, this contention of the learned Amicus Curiae that this is an unnatural conduct on the part of PW3 the brother and his not being an eye witness to the offence is liable to be rejected. The two Constables PW7 and PW4 who were on patrolling and reached at the spot hearing the screams of PW2 Vijay Singh and PW3 Preetam have stated that when they reached at the spot, PW2 Vijay Singh was found injured and PW3 Preetam Singh was trying to apprehend the accused Gulzari Lal. They apprehended the Appellant and snatched Churi from his hand. The testimony of PW4 and PW7 further corroborates the presence of PW3 along with PW2 on the spot. Moreover, the version of coming on the bicycle is not an improvement as the same was not stated by PW3 in his examination in chief but was elicited in the cross examination.
11. From the testimonies of PW 2 Vijay Singh, PW3 Preetam Singh, PW 7 Ravi Dutt, PW4 Constable Rajneesh, PW9 Constable Ramesh Kumar, and the testimonies of medical experts PW10 Dr. Ashok Acharya and PW 12 Dr. R.P. Kaur, the prosecution has proved its case beyond reasonable doubt. Thus, the Crl. A. 504/1999 Page 11 of 12 impugned judgment of conviction for offence punishable under Section 307 IPC is not liable to be disturbed in the present appeal.
12. The Appellant has been awarded a sentence to undergo Rigorous Imprisonment for four years and to pay a fine of `3,000/-. The Appellant has already undergone a sentence of more than two years. The incident is of the year 1994. He has faced the ordeal of the trial and the appeal for the last 16 years and is on bail for the last ten years during which he has re-established ties in the society. It would be thus in the interest of justice to modify the sentence of the Appellant to the period already undergone.
13. The appeal is, accordingly, disposed of upholding the conviction for offence punishable under Section 307 IPC and modifying the order on sentence to imprisonment for a period already undergone. The bail bond and the surety bond are hereby discharged.
(MUKTA GUPTA) JUDGE FEBRUARY 04, 2011 dk Crl. A. 504/1999 Page 12 of 12