Chander Shekar And Others vs The State
1986 Latest Caselaw 175 Del

JUDGMENT

Malik Sharief-Ud-Din, J.

1. Three persons, Narain Dass, Chander Shekhar and Vidya Devi were tried by the Addl. Sessions Judge. Narain Dass is the father of Chander Shekhar, while Vidya Devi is his wife. Narain Dass and Chander Shekhar (hereinafter for short called appellants) were sentenced to life imprisonment under S. 302 read with S. 34 IPC and also to the payment of fine of Rs. 200/- each. In default of payment of fine a further imprisonment of six months was also imposed. Appellant Chander Shekhar was also convicted under S. 27/54/59 of Arms Act and was sentenced to undergo rigorous imprisonment for two years. Accused Vidya Devi was convicted under S. 201 IPC but was released on probation of good conduct. Sentences passed against appellant, Chander Shekhar were made concurrent. Aggrieved by the order, Narain Dass, and Chander Shekhar have filed this appeal.

2. The deceased in this case is one Makhan Lal brother of appellant Narain Dass. They are a number of brothers and reside in close proxinity. The date of incident is 15th October, 1980 at about 8.15 p.m. The case as put up by the prosecution is that appellant Narain Dass caught hold of the deceased while appellant Chander Shekhar stabbed the deceased with a dagger. The place of incident is 537/6 B Mansrover Park, Police Station, Shahdara. There is no evidence with regard to motive or even immediate cause for the commission of this crime. At about 8.15 p.m. on the date of incident, P.W. 1 Veena widow of the deceased noticed the deceased being pushed into their house by the appellants. She at once went to the police station and gave the following information :-

"Narain and Kala (meaning thereby appellant Chander Shekar) my neighbours have served wine to my husband and they are giving beating to him. I have come to report the matter. Action may be taken."

3. Pursuant to this information Soban Singh S.I. P.W. 2 went to the scene of incident. He was followed by Veena P.W. 1. He learnt on spot that the deceased had been injured by the appellants and he has been removed to hospital. After making arrangements for securing the scene of incident he proceeded to the General Hospital, Shahdara where he learnt that the deceased had died due to the injury received in this incident. On his endorsement to the above effect, F.I.R was registered at 10 a.m. He completed all the formalities on reaching the scene of incident.

4. Dr. Bharat Singh P.W. 10 on 16-10-80 at about 12 noon conducted the postmortem of the dead body and opined that the injury sustained by the deceased was an incised stab wound over the left side back of chest below the inferior angle of scapula (left). He further opined that injury was antemortem and was caused by a double edge sharp weapon, and, that it was sufficient to result in death in the ordinary course of nature. Death according to the autopsy surgeon was due to hemorrhage and shock from injury to the left lung. According to him the injury was possible by the dagger Ex. P-1 seized in this case. No further details about the report of autopsy surgeon need be given as neither the injury sustained by the deceased nor the cause of his death is in controversy.

5. Before we take up for consideration the contentions urged before us by Mr. D. R. Sethi, learned counsel for the appellants, we may notice one more fact as it does provide a clue to what apparently seems to have happened preceding the incident. In this case appellant, Chander Shekhar was arrested on 16/10/80. On 17/10/80 when injuries were noticed on his person he too was sent for medical examination. P.W. 11 Dr. Mukhtiar Singh examined him on 17-10-80 at about 1.55 p.m. and noticed the following injuries on his person :-

1.5 linear abrasions in the area 2" x 1" middle part of the chest left side. They were having hard scab.

2. Abrasion 1" x 1" with hard scab anterior surface upper part of the left forearm.

The duration of these injuries was placed at 1 to 2 days old. The injuries were caused by blunt object or surface.

6. It will be noticed that these injuries on the person of the appellant Chander Shekhar almost correspond to the date and time of incident. Although the appellant have not taken the stand that there was a quarrel preceding the incident, this circumstance definitely provides a clue that in all probability a quarrel had preceded the incident. This feature of the case we are highlighting as in the ultimate assessment of evidence it will in the circumstances of this case have some bearing on the determination of the nature of offence committed.

7. The determination of the guilt or otherwise of the appellants rests upon the testimony of P.W. 1 Veena widow of the deceased and P.W. 3 Dayawati wife of another brother of the deceased namely, Sunder Lal, who also is a resident of House No. 537/6 Mansrover Park, Shahdara. Besides there are two pieces of evidence. Appellant Chander Shekhar on 16/10/80 makes a disclosure statement, pursuant to which a blood stained dagger is taken into possession at his instance. On 17-10-80 a blood stained pant is recovered from him. The Central Forensic Science Laboratory on an analysis of various exhibits sent to it for analysis has opined that the blood group of the deceased was 'A' and that both the dagger and the pant seized at the instance of the appellant Chander Shekhar were found to be stained with human blood of 'A' group same as that of the deceased.

8. At this stage we may notice the contentions raised by Mr. Sethi on behalf of the appellants. His first contention is that the prosecution has failed to show the genesis of the incident. His second contention is that there is absolutely no evidence regarding the involvement of Narain Dass appellant in this crime and that there is no credible evidence against Chander Shekhar. While elaborating, Mr. Sethi contended that, no blood stains were found on the Pant of appellant Chander Shekhar on 16-10-80 when he was arrested and the investigating officer's explanation that he only noticed it on 17-10-80 is intriguing. Mr. Sethi has also invited our attention to the statement of P.W. 3 Daya Wati under S. 161 Cr.P.C. to indicate that there is no mention about appellant Chander Shekhar alias Kala having stabbed and to that extent she has improved her testimony. He also contended that even the investigating officer has admitted that when he went to the scene of incident and to hospital he could not contact any eyewitness. Mr. Sethi has also raised the objection that no public witness was involved at the time the disclosure statement was made or, the recovery pursuant to it was effected and that this has been done even though public witnesses were walking about. We will take up the contentions raised by Mr. Sethi first for consideration.

9. One of the greatest disadvantages of living in highly urbanized areas is that people are out of sympathy with their neighbours and fellow citizens. This is for a variety of reasons. None wants to get involved in such matters. Our experience is that in the recent past it is really becoming difficult to involve public witnesses in court cases particularly in cases of capital offences. It is common-place experience that in Delhi if an accident takes place, hardly anybody feels concerned. Life is so mechanical and fast that nobody has time to sympathise with a fellow citizen. We blame none for it as this is the life style growing in highly urbanized areas. Even those who feel concerned keep away for fear of their own security and getting involved in tardy proceedings. There is a subdued murmur that the law and order agency has failed to provide security to the law abiding citizens and, what rules, now, is the might and ingenuity of the criminals. Under these circumstances it will be dangerous not to rely on relation witnesses and police witnesses in such matters. Of course, provided, such witnesses are confirmed to be truthful when tested at the yardstick of the peculiar facts and circumstances of each case.

10. As far as the genesis of the incident is concerned, we do find, Mr. Sethi's contention weighty. It, however, appears to us that a quarrel has taken place on some matter. This is a fact, regarding which the only person who could enlighten the court is no more. We, however, on the basis of the injuries sustained by Chander Shekhar appellant feel that a quarrel had taken place between the parties preceding the incident. What was the cause of that quarrel was, either known to the deceased or to the accused. The deceased is no more and the accused are tight lipped, obviously, in their own interests.

11. It is possible that the investigating officer may not have noticed the blood stains on the Pant of the appellant Chander Shekhar when he was arrested on 16-10-80. We find no reason to distrust his evidence that, he only noticed it on 17-10-80. If the idea was to manipulate evidence, he could very easily have shown the seizure on 16-10-80. This contention in our view is extravagant and no importance can be attached to it.

12. The disclosure statement was made by the appellant Chander Shekhar before Soban Singh PW 20 Constable Ram Pal Udal Singh H.C. PW 17, Sunder Lal P.W. 7. The recovery of dagger was made at the instance of appellant Chander Shekhar before the same set of witnesses. The recovery of Pant of this very appellant is also witnessed by the same set of witnesses. It is true that P.W. 7 Sunder Lal has not supported the disclosure or the discovery and also the seizure of Pant, but that to our mind is of no consequence under the circumstances of this case. P.W. 7 Sunder Lal with the assistance of Hari Singh P.W. 13 admittedly had removed the deceased to hospital immediately after the incident. He was in fact expected to support the prosecution case, but at trial he did make a volte face by declining to support it. Blood is, indeed, thicker than water but, nobody seems to be with the blood that is no more. It is understandable why, he is not supporting any aspect of the case. His wife P.W. 3 Daya Wati, however, to us appears to be a more conscientious and god fearing. Under these circumstances it is not possible for us to distrust the evidence of P.W. 17 H. C. Udal Singh, Soban Singh, S.I. P.W. 20 on this aspect of the case. Needless to repeat that, the knife recovered at the instance of the appellant Chander Shekhar pursuant to his disclosure and, the Pant seized from his person were found stained with human blood of 'A' group, same as that of the deceased. This has not been explained by the appellant Chander Shekhar. How then can one escape the conclusion that he got these blood stains on his pant at the time of incident. Dagger too was buried by him and this was within his exclusive knowledge. In our view, in the circumstances of this case, this is a piece of evidence which cannot be ignored or overlooked.

13. This also goes to strengthen our belief that P.W. 3 Daya Wati wife of Sunder lal is a truthful witness. She is living in the same house No. 587/6B Mansrover Park, Shahdara. Being a house wife she at that hour of the night must have been at home. She has in no dubious words stated that a quarrel had taken place between appellant Chander Shekhar and the deceased and, she saw the appellant Chander Shekhar stabbing the deceased with a knife and that on receipt of the injury the deceased fell on the ground. She has not involved Narain Dass. Daya Wati P.W. 3's ethics and courage indeed, is commendable. She seems to have revolted in pursuance of the voice of her conscience despite her husband P.W. 7 Sunder Lal. From the circumstances of the case her version to us appears to be truthful. She has not involved Narain Dass. The scene of the incident as noticed by the investigating officer clearly lends support to what she has deposed.

14. Closely connected with the testimony of P.W. 3 Daya Wati, is the evidence tendered by P.W. 1 Veena the most unfortunate victim of this heinous crime, a crime which has rendered her helpless and destitute, a crime which has ended her matrimonial life and, a crime which has given her the greatest shock of her life.

15. Even at the risk of repetition we may recall that she is not an actual witness to the commission of this crime. She is a witness to the limited extent that within her sight on some matter, not known to her, the deceased was being pushed by the appellants inside their house. Apprehending that something wrong might happen, she immediately, rushes to the police station and, gives information about it, never knowing that in the meantime the deceased had been done to death. The information given by her to the police is innocuous, not implicating anyone of any serious crime. That goes to show that she felt apprehensive. That also goes to show that, she did not expect, any assistance from the other brothers of the deceased. Normally, if the deceased was being pushed by the appellants into their house and, given beating, she would approach the other brothers of the deceased. Why she has not done so, one can only guess. In all probability all the brothers of the deceased were out of sympathy with the deceased. That is the reason for all the kith and kin of the deceased to decline to support the prosecution case. All the witnesses namely Phool Wati P.W. 4, Ram Dayal, P.W. 5, Prem Chand P.W. 6, Sunder Lal P.W. 7, all brothers of the deceased, who were expected to support the prosecution case, made a volte face, by declining to depose what the prosecution expected of them. It is impossible to believe that none of them was in his home at the time of incident. In particular, we feel that, Sunder Lal P.W. 7, who was living in the same house, has deliberately spoken lies. We say so, for the reason that he was the person immediately available for removing the deceased to the hospital. In any case, it is not possible to agree with the contention of Mr. Sethi that, P.W. 1 and P.W. 3 are witnesses on whose evidence no implicit faith can be placed. Viewing their depositions in the light of the circumstantial evidence, the scene and setting of the crime we are left with no option but to brush aside the contention raised.

16. Having said so, there is no need, in our view, to refer to any other evidence which is more or less of a formal nature. However, we do consider it of cardinal importance to consider the two main contentions of the learned counsel for the appellants. In respect of the contention of Mr. Sethi that there is no evidence against the involvement of appellant Narain Dass, we find no reason to disagree. There is, of course no evidence against him and, he deserves a clean acquittal. We order accordingly. However, on the facts and evidence of this case we find that the appellant Chander Shekhar cannot escape from the act of his commission. We are of the view that there is sufficient and ample evidence for the conclusion that, he is involved in the commission of this crime. The fact, however, remains, as contended by Mr. Sethi as to the offence he has committed. According to Mr. Sethi, the facts and circumstances of the case clearly show that, a quarrel took place between the appellant Chander Shekhar and the deceased preceding the incident. Considering the medical evidence regarding the injuries on the person of appellant Chander Shekhar we are inclined to go with Mr. Sethi. Dr. Mukhtiar Singh has opined that the injuries on the person of appellant Chander Shekhar could not be due to beating. Of course, the fact that these could be due to a fall on hard surface he does not rule out. The injuries on the person of appellant Chander Shekhar correspond to the time and date of incident. P.W. 3 Daya Wati has deposed that a quarrel did take place between the appellant Chander Shekhar and the deceased. She has further deposed that appellant Chander Shekhar then picked up a dagger and gave one stab blow. This is consistent with medical evidence. There is only one injury inflicted on the person of the deceased. It cannot, therefore, in the circumstances of this case be said that there was any intention to kill. We have no evidence before us that, the deceased was called to their house by the appellants. Obviously, he had himself gone there and, had picked up a quarrel. It is possible that in that heat of passion, appellant Chander Shekhar picked up the knife and gave a stab blow. But in doing so, he cannot be said to have intended to kill. He can at the best be imputed the knowledge that, he was likely to cause an injury which may result in death.

17. We under these circumstances and in view of this state of evidence agree with Mr. Sethi that, there is no case against appellant Narain Dass. To that extent we accept the appeal. We set aside the conviction and sentence of appellant Narain Dass and acquit him. In so far as the appellant Chander Shekhar is concerned, we agree with Mr. Sethi that his case will fall under S. 304 Part II. We, therefore, set aside the conviction and sentence under S. 302/34 IPC and instead he is convicted under S. 304 Part II and is sentenced to undergo rigorous imprisonment for six years. The conviction and sentence of appellant Chander Shekhar under S. 27/54/59 of Arms Act is maintained. We further direct that both the sentences shall run concurrently.

18. Appeal is disposed of accordingly.

19. Order accordingly.