Inderjit vs The State
1985 Latest Caselaw 182 Del

JUDGMENT

Malik Sharief Ud Din, J.

1. This judgment will dispose of the criminal appeals : Crl. A 27 of 1982 (Inderjit v. State) and Crl. Appeal No. 356 of 1982 (Prem Shanker v. State) as these arise out of the same facts and circumstances.

2. A case under S. 302/34, IPC and S. 27 of the Arms Act came to be tried by Shri T. S. Oberoi, Addl. Sessions Judge, Delhi against the appellants. The appellants were found guilty under S. 302/34, IPC and were sentenced to undergo imprisonment for life. The appellant Prem Shanker alias Kalva was also convicted under S. 27 of the Arms Act and was sentenced to rigorous imprisonment for three years. The learned Addl. Sessions Judge directed that both the sentences should run concurrently. The conviction and sentence were recorded on January 15, 1982 and it is against this order that present appeals were filed.

3. We make a reference to the facts giving rise to the prosecution. On 31st August, 1980 one Girwar Singh and his wife, Smt. Bhagwati and their son Nathi were repairing their Jhuggi at Gaushala Marg, Bara Dari, Delhi. They are respectively the father, mother and brother of Rajinder Kumar deceased. At about 4 to 4.15 p.m. on the same day Rajinder Kumar deceased came to his Jhuggi with stab wounds from which he was bleeding. He was wearing towel around his waist. He fell on the ground and on enquiry he told his father, mother and brother that appellant Inder caught him and Kalva inflicted stab wounds on his person. He was immediately removed in the three-wheeler scooter by his father and brother to Hindu Rao hospital where he was admitted. The Duty Constable at Hindu Rao hospital made hectic efforts to pass on information about this event on telephone to the police post but since the telephone was not of order he failed to convey the message but then deputed one Kishan Chand Patna to transmit information about this incident to the police post which was accordingly done by him by transmitting information to police post Sheadipura. This Information was recorded as D.D. report No. 24 dated 31st August, 1980, at 6.00 p.m. by Constable Hukum Chand and a request was made in the message vide D.D. report No. 24 that some police officer may immediately be sent to Hindu Rao hospital. A copy of the D.D. report was sent through Constable Harbans Singh to S.I. Ajab Singh who was already in the area in connection with the case, FIR No. 448/80 near Filmistan Cinema, Delhi. On receipt of report, Ajab Singh, S.I. went to Hindu Rao hospital accompanied by some other police officials. The deceased Rajinder Kumar was declared unfit to make statement. Ajab Singh S.I. thereafter forwarded D.D. report No. 24 to police station Original read (sic) for registration of the case along with his endorsement, Meanwhile, Ajab Singh S.I. accompanied by A.S.I. Parkash Singh went to the scene of incident. On his way he met Nathi PW and recorded his statement. On examining the scene of incident he did not find anything at the site as it had been disturbed by the people who moved through it. Ajab Singh thereafter recorded statement of Bhagwat and Girwar Singh mother and father of the deceased. He also recorded statement of the two eye-witnesses Ram Asre P.W. 6 and Jagbir Singh P.W. 7. Thereafter, search for the accused started but they could not be traced. On 2nd September, 1980 accused Prem Shanker, alias Kalva, surrendered at the police post at the time when P.W. 7 Jagbir Singh, P.W. 13 Nathi Ram and P.W. 14 Ved Parkash had come to hand over the towel which the deceased Rajinder Kumar had wrapped around his waist at the time of incident. It had been washed by the wife of P.W. Nathi Ram, not knowing the implication thereof. Prem Shanker accused was interrogated in the presence of the aforesaid witnesses during the course of which he is stated to have made a disclosure statement in pursuance of which a dagger, Ext. P-2 was discovered in a gutter near railway quarters in the presence of the aforesaid set of witnesses. The dagger was secured and sealed and sketch thereof was prepared and the site Plan of the place of discovery was also drawn. Search for another accused continued. Meanwhile, on 5-9-1980 at about 2 p.m. the police was informed that Ranjinder Kumar died in the hospital. A.D.D. report No. 18 came to be recorded and S.I. Ajab Singh went to the hospital along with photographer Kali Ram and constables Chander Singh and Daya Krishna. The dead body was photographed and inquest papers were prepared and the dead body was sent for post mortem. As per the post mortem report of Dr. Bharat Singh P.W. 8, injury No. 2 was found to be fatal and sufficient in the ordinary course of nature to cause death. The remaining two injuries were also found to be on the vital parts of the body of the deceased. The case property was sent for the opinion of C.F.S.L. New Delhi. Accused Inderjit was arrested on 20th September, 1980 from Ajmal Khan Park. C.F.S.L., however, could not determine the origin of the blood on the dagger as it was too small for serological examination.

4. We may at this stage make a reference to the injuries which on post mortem were found by Dr. Bharat Singh PW 8 on the person of the deceased :-

1. One stitched wound over the left side front of chest 1 1/2" below the medieval end of left clavicle placed obliquely size 1" long x chest wall deep (operational).

2. On stitched wound over the left side lateral aspect of chest placed transversely 3 1/2" below the left nipple size of the wound was 4" long x ? (this wound coincided with the side of injuries described in medico-legal report of Hindu Rao Hospital, but size was more probably the wound had interfered by surgeon who operated on the body).

3. One stitched wound over the left paramedical line of abdomen 7" long x abdominal cavity deep (operational)

4. One stitched wound over the right side chest 4" below the right nipple, size 1 1/2" long x chest wall deep. (operational)

5. Drainage tube wound on the left side of abdomen (operational)

6. On stitched wound over the right iliac crest placed transversely size 3/4" x 2/10".

7. One stitched wound on the right forearm medial size on its lower third placed horizontally, size 1" long x muscle deep.

8. Cut open mark for drip on both angle (operational).

5. We have heard the learned counsel for the parties and have carefully perused the record. The learned Addl. Sessions Judge has made a detailed reference to the evidence examined in the case. We, however, feel that we are not concerned with the formal evidence. We are only making reference to the evidence which is material for determination of these appeals.

6. P.W. Dr. A. K. Gupta first attended on the deceased. According to him, the deceased was brought to the hospital at 4.45 p.m. on 31st August, 1980 with alleged history of having been stabbed by someone. He found injuries fresh as caused by sharp-edged weapon. We are making a reference to this statement only to indicate the point of time at which the deceased was taken to the hospital as he was illegally stabbed between 4 and 4.15 p.m. on the same day.

7. The fate of the case, in fact hinges on the testimony of P.W. 6 Ram Asre, P.W. 7 Jagbir Singh, P.W. 12 Bhagwati, P.W. 13 Nathi Ram, P.W. 18 S.I. Ajab Singh. It is not at all necessary for us to make reference to the testimony of all the witnesses to the disclosure statement of the accused Prem Shanker or to the testimony relating to discovery of the dagger. The reason is that on the examination of CFSL the blood on the dagger was found too inadequate for serological examination as such could not be directly connected with the commission of this offence.

8. The testimony of P.W. 6 and P.W. 7. Ram Asre and Jagbir Singh is similar. Both of them have seen the incident. Ram Asre at the time of incident had gone to bring water from the municipal tap near his house while Jagbir Singh P.W. 7 at the time of incident was going from his house to his tea shop. Both of them saw Rajinder Kumar deceased and the appellants abusing each other and exchanging hot words near Bharat Sewak Samaj in front of a stair case. They have seen accused Inderjit catching hold of the deceased from behind and have also seen Prem Shanker taking out a knife from his dub and inflicting stab wound on the person of the deceased. Both have testified to the effect that after having inflicted injuries the appellants escaped towards Bhagat Singh Nagar while Rajinder Kumar deceased went towards his house. They have also stated that at that time Rajinder Kumar was wrapping a towel around his waist. The accused as well as Rajinder Kumar deceased were known to them.

9. P.Ws. 12 and 13, Bhagwati and Nathi Ram, mother and brother of the deceased have deposed that on the day of incident when they were busy in repairing their Jhuggi at about 4 to 4.45 p.m. Rajinder Kumar deceased appeared before them in an injured condition and was bleeding. He was wearing a towel around his waist and on enquiry he told that the appellant Inderjit caught hold of him and Prem Shanker appellant inflicted stab wounds on his person. Girwar Singh, father of the deceased and Nathi Ram, brother of the deceased, then removed him to Hindu Rao Hospital where he ultimately died on 5-9-1980 due to these stab wounds.

10. P.W. 18 Ajab Singh, who has investigated this case, has stated that he received copy of D.D. report and went to the hospital and immediately after the deceased was declared unfit to make a statement he came to the scene of incident where he recorded the statements of P.Ws. 6, 7, 12 and 13 as also the father of the deceased, Girwar Singh; that the accused could not be found out and the accused Prem Shanker surrendered at police post on 2-9-1980 where on interrogation he made a disclosure statement resulting in the discovery of a dagger. That on 5th September, 1980 at about 2 p.m. he was informed about the death of Ranjinder Kumar in the hospital and that the accused Inderjit was arrested from Ajmal Khan Park on 20-9-1980. He, however, admits that there is no mention of eye-witnesses in the inquest report.

11. The first contention of the learned counsel for the appellant is that FIR is blind and there is no mention as to who caused injuries on the person of the deceased. This objection cannot be sustained for the simple reason that the FIR came to be recorded at the instance of Duty Constable posted at Hindu Rao Hospital whose duty was to convey information in respect of the admission of persons having received stab wounds to the police post. There is nothing on record that the Duty Constable had any conversation with the father or the brother of the deceased or that he even met them. This objection could be maintained only if the FIR had been registered at the instance of Girwar of Nathi Ram. It was also contended by the learned counsel for the appellant that P.Ws. 6 and 7, in fact, are not eye-witnesses as according to them they made no efforts either to inform the police or to inform the parents of the deceased. This contention from our point of view is also without any force for the simple reason that within the knowledge of P.Ws. 6 and 7 Rajinder Kumar deceased had gone to his Jhuggi and had informed his parents and brother as to what had happened.

12. Yet another objection raised by the learned counsel for the appellants is that Rajinder Kumar deceased has not named Prem Shanker and instead has named Kalva and it is not known who that Kalva is. This argument is also without any force as there is evidence of Bhagwati and Nathi Ram that Prem Shanker accused resides in their vicinity and he is generally called by the name of Kalva. It will be noticed that he is also known to both P.W. 6 and P.W. 7 Ram Asre and Jagbir Singh and they have also named both the accused persons in their statements. It will be noticed that the testimony of all this witnesses P.Ws. 6, 7, 12 and 13 is so natural and straightforward that there is no reason to doubt the same. From the facts of this case it is abundantly clear that deceased did travel from the scene of incident to his home which goes to show that he was conscious he naturally must have told his household people as to how and at whose hands the incident took place. P.Ws. 6 and 7 Ram Asre and Jagbir Singh bear no grudge against the accused and have named the appellants as the persons who caused this incident immediately after the incident on the same evening.

13. It is next argued that since the names of the eye-witnesses are not mentioned in the inquest report prepared on 5-9-80 it would be reasonable for the Court to conclude that the eye-witnesses were not available up to that date. The contention to our mind under the circumstances of this case is of no avail. The reason being that all the eye-witnesses to the incident were examined by Ajab Singh S.I. on the same evening. Non-mention of eye-witnesses as such in the inquest report can only be attributed to incompetence and inexperience of the investigation officer, Ajab Singh. In fact, the sole challenge to P.Ws. 6 and 7 Ram Asre and Jagbir Singh is that they did not inform police or any one else about the incident. The argument cannot be sustained for the simple reason that the victim himself had told this story and it was known as to who were the assailants. About P.Ws. 12 and 13 the challenge is that they also did not report the matter. We do not agree with this argument because they being the people who were immediately concerned with the safety of the victim, their first concern was to remove him to hospital for immediate medical aid and by the time they were available for making report the police had already come on the spot and the incident had already come to the notice of the police as it has been reported by the Duty Constable from the hospital.

14. With these observations we are of the view that Appeal No. 35 of 1982, (Prem Shanker v. State) fails. We accordingly dismiss the appeal filed by Prem Shanker and uphold the conviction and sentence passed by the learned Addl. Sessions Judge against him.

15. As far as the case of Inderjit is concerned, it is on a different footing. The case against Inderjit is that he caught hold of the deceased and after Prem Shanker appellant inflicted stab wounds on the person of Rajinder Kumar he escaped with Prem Shanker. This in short is his involvement. From the facts of the case we find that in fact the dispute arose in respect of some money which the deceased is stated to owe to the accused. This is testified by P.W. 6 Ram Asre. In the first place there has been exchange of abuses and then there was a quarrel. It was in that quarrel that Inderjit caught hold of the deceased but then suddenly Prem Shanker is said to have taken out a dagger from his dub and inflicted stab wounds on Rajinder Kumar which ultimately resulted in his death. It is difficult to believe that the appellant Inderjit had any knowledge that Prem Shanker was carrying a dagger or that Prem Shanker was going to attack the deceased with knife and inflict fatal blows. He cannot, therefore, be said to be possessed of any knowledge that Prem Shanker was either carrying a murder weapon or intended to commit murder of the deceased. The maximum that can be said about Inderjit is that he wanted to pick up a quarrel with the deceased. Under the circumstances, therefore, it is difficult to hold that he had a common intention to murder Rajinder Kumar deceased though it cannot be ruled out that he had common intention to pick up a quarrel with Rajinder Kumar.

16. For these reasons we are of the view that the case against Inderjit is distinguishable. We, therefore, accept his Appeal No. 27 of 1982 and acquit him.

17. Order accordingly.