Krishan Murari And Anr. vs State (Delhi Administration)
1988 Latest Caselaw 37 Del

JUDGMENT

Charanjit Talwar, J.

(1) By this appeal, Krishan Murari @ Pappu and his younger brother Krishan Pal Kuckoo challenge the legality of the judgment dated the 31st January, 1984 passed by the Additional Sessions Judge, Delhi, whereby they were convicted under Section 302 read with Section 34 of the Indian Penal Code. They further challenge his order of the same date sentencing them to life imprisonment. The further sentence imposed on Krishan Pal under Section 324 of the Indian Penal Code to undergo 9 months, rigorous imprisonment is also sought to be set aside.

(2) Before proceeding to the merits of the case, we have to highlight that the appellants were adolescent on the date of commission of offence, i.e., 18th February, 1983. Their statements under Section 313 of the Code of Criminal Procedure were recorded on 17th January, 1984. Krishan Murari declared himself to be 19 years old and his younger brother Krishan Pal stated that he was 17 years old. Their ages it appears from the record were not challenged by the prosecution. The learned trial Court has not given any finding about their ages although it has been noticed in the order sentencing them that life imprisonment has been awarded to them "considering the age of the accused". The learned Judge was of the view and rightly so that because of their young ages, they ought not be sentenced to death.

(3) As one of the questions raised before us is that the appellants ought to have been directed to be detained in a Borstal Institution under Section 5 of the Punjab Borstal Act, 1926 in lieu of the sentence imposed on them, we wanted to hold an inquiry about their ages. By our order of 27th November, 1987 while noticing the ages given by the appellants in their said statements, we directed the state counsel to ascertain whether the prosecution was contesting the ages given by the appellants. We noticed that, "We agree with her that in case the State is not contesting the ages of the appellants, as given by them, then the ages given by the appellants in their statements have to be accepted."

(4) On 27th November, 1987 Ms. Wasa, counsel for the respondent, after taking instructions submitted that Krishan Pal, appellant No. 2 was 18 years old at the time of commission of offence and his elder brother Krishan Murari was about 21 years of age at that time. In view of this statement, we did not consider it necessary to hold further inquiry. As to the effect of this admission of the respondent regarding the ages of the appellants, we would advert to it after analysing the evidence.

(5) The substance of the prosecution case against the appellants is contained in the charge which was framed by the learned trial Court on 19th September, 1983. In that charge Krishan Murari's age has been given as 19 years and that of Krishan Pal as 18 years. The charge reads :

THAT on 10-2-1983 at about 8.15 A.M. near House No. WZ-1563, you both in furtherance of your common intention caused bodily injury to Raj Kumar which was sufficient in the ordinary course of nature to cause death and thereby caused his death and thus you committed the offence of murder punishable under Section 302 read with Section 34 Indian Penal Code and within the jurisdiction of this Court.

THAT you Krishan Pal @ Kuckoo at the aforesaid date, time and place intentionally caused hurt to Shri Nand Kishore with a knife with such intention and under such circumstances that had he died in consequence of your acts, you would have been guilty of murder and thereby you committed the offence punishable under Section 307 Indian Penal Code and within the jurisdiction of this Court.

Andi hereby direst that you be tried on the said charges by this Court."

(6) The learned court has noticed the facts of the prosecution case in detail. In our view no useful purpose would be served by repeating them all over again. It appears that during investigation none of the prosecution witnesses except for the first informant Nand Kishore, Public Witness 1, had alleged that Krishan Murari had caught hold of Raj Kumar, the deceased, when Krishan Pal stabbed him (Raj Kumar). In the First Information Report (Ex. Public Witness 1/A) the first informant Nand Kishore after narrating the fact that Krishan Pal gave knife blows to him (the witness) stated that "Thereafter Krishan Murari and Krishan Pal both the brothers, held my nephew Raj Kumar and caused knife injuries to him on the front of his chest and he fell down on receiving the knife blow and blood started oozing out." In the witness box, this witness while describing the attack on the deceased stated that "my sister's son Raj Kumar was blushing his teeth, Krishan Murari caught bold of him and Krishan Pal stabbed him on his chest." From the examination of the record it appears that all the other witnesses who appear be near relations of the deceased although in their previous statements had ascribed any role to Krishan Murari regarding his catching hold of the deceased, yet in their testimony before the Court have tried to support Nand Kishore, Public Witness I. They were all confronted with their earlier statements where they had not stated so. As we have noticed above, even the informant Nand Kishore in his statement before the Police, which statement was made the basis of the First Information Report, had not specifically attributed the role of catching hold of the deceased only to Krishan Murari. It seems that because in the First Information Report the role attributed to both the appellants was that they had "held my nephew Raj Kumar and caused knife injuries to him", as such in the charge no specific allegation against Krishan Murari that he was the one who had caught hold of Raj Kumar was made.

(7) We may note that the presence of Nand Kishore on 18th February, 1983 at about 8 Am near House No. WZ-1563, Nangal Raya, i.e., the house of the appellants where the stabbing incident took place, cannot be disputed as he was given two knife blows immediately before the injury sustained by the deceased. A public hydrant is installed in front of their (Appellants) house in the public street The deceased was also living nearby. Nand Kishore Along with his father Public Witness 2 Lachhi Ram was living in another house namely WZ-553D, which is situate about 10 yards away from the house of the appellants. It appears that the appellants' mother had objected to the people of the locality having a bath or washing clothes at that site, i.e., the public hydrant. The prosecution case was that the appellants' mother Prabhato Devi exchanged hot words with Public Witness 2 Lachhi Ram on 18th February, 1983 at about 8 A.M. at that place and that on hearing the raised voices Nand Kishore went to the spot to find out the reason of the commotion from his father Lachhi Ram. There he saw the appellants and their mother. In his statement (Ex. Public Witness 1/A) he stated that he hardly reached that place when Krishan Pal gave him a knife blow ; he tried to save himself but nevertheless sustained a scratch on his left shoulder near the back. Thereupon Krishan Pal gave another knife blow to him and caused injury on his left side abdomen as a result of which blood started oozing out and he fell down. He affirmed this part of the prosecution case in his testimony also but went on to say that when Raj Kumar who was brushing his teeth came to the spot (presumably to save his maternal uncle Nand Kishore), Krishan Murari caught hold of Raj Kumar and Krishan Pal stabbed him on the front of his chest. As per the F.I.R., S/Shri Yudh Vir Singh and Dharam Singh, apart from many others whose names he did not disclose, were present at the spot.

(8) The injured persons, i.e., Nand Kishore and Raj Kumar were removed to the hospital by Ramesh Chand, Public Witness 5, brother of Nand Kishore in a three-wheeler scooter. (In Ex. Public Witness I/A Nand Kishore did not name his brother having been present at the spot). At the hospital Raj Kumar was declared dead but Nand Kishore was admitted therein as he was found to have received a grievous injury.

(9) According to the prosecution it was Ramesh Chand, Public Witness 5 who had set the Police agency in motion by informing their control room at about 8.23 A.M. on the date of the incident, i.e., 18th February, 1983 that a quarrel was going on at his residence. The Daily Diary of that date maintained in the control room, translation of which is Ex. Public Witness 13/A, reads : "INFORMATION regarding knife stabbing incident Time 8.23 (A.M.) Shri Ramesh Chand has informed from WZ-553, Nangal Raya through telephone No. 552847 that a quarrel is going on at his house and his brother has been stabbed with a knife. The report has been lodged with P.S. Delhi Cantt and the van has been dispatched to the spot. sd/- Hem Chand S.I."

(10) It was on receipt of this message from the control room that Pw 23 Shri Om Sagar, Station House Officer of the Delhi Cantt Police Station reached the place of incent. There he was informed that the injured have already been removed to the Safdarjung Hospital by Shri Ramesh Chand. He left A.S I. Ram Singh and Constable Mohan Singh at the spot for guarding it and thereafter went to the hospital. There he learnt that Raj Kumar had succumbed to his injuries and that Nand Kishore, the other injured person had been admitted. After taking permission of the Doctor on duty, he interrogated the injured and recorded his statement (Ex. Public Witness 1/A) which is the basis of the First Information Report (Ex. Public Witness 8/C). As the statement disclosed the commission of offence under Section 302 read with 307 of the Indian Penal Code, he sent that statement Along with his report for recording of the case and commenced the investigation. He met Ramesh Chand who informed him that he was title one who had reported to the control room about the incident and that he had brought the injured to the hospital. He (P.W. 23) came back to the spot and according to him had the scene of occurrence photographed and also recorded the statement of Lachhi Ram (P.W. 2) and that of Dharam Chand, Public Witness 7. While at the spot, he received secret information that Krishan Murari was present at a nearby bus stand. He went there and arrested Krishan Murari. On his search nothing was recovered. After interrogation Krishan Murari was sent to the lock up and produced in the Court on the next date, i.e., 19th February, 1983 and his police remand was obtained. Thereafter, the Investigating Officer went to the spot again and met P W. 3 Tara Chand and recorded his statement. He also obtained the post mortem report. On 20th February, 1983 he recorded the statement of Public Witness 5 Ramesh Chand and of one Hari Chand. On 21st February, 1983 the investigation was banded over by him to S.I. Moti Singh who has appeared as Public Witness 20.

(11) At this stage we may notice that Public Witness 23 Inspector Om Sagar, the Station House Officer admits having met Ramesh Chand in the hospital on 18th February, 1983. The presence of Ramesh Chand in the hospital cannot be doubted as he is the one who took the injured there in a three wheeler scooter. However, if Ramesh Chand was an eye-witness to the occurrence, he would have definitely disclosed the facts alleged to have occurred in his presence to the Investigating Officer. Ramesh Chand is a very close relation of the injured ; he is younger brother of Nand Kishore, P.W. 1 and maternal uncle of Raj Kumar, the deceased. The information which he gave to the control room from a telephone being No. 552847 which is installed in a nearby house at 8.23 A.M. on that date has been quoted above. In that report he did not give the name of the assailants. All that he reported was that a quarrel was going on at his house and his brother had been stabbed with a knife. That information coupled with the fact that though the Investigating Officer had met Ramesh Chand 'in the hospital, yet the non-recording of his statement goes to show that Ramesh Chand was unaware of the details of the stabbing incident as he had not witnessed the same. His statement was recorded after two days of the occurrence. In the First Information Report also, Nand Kishore, Public Witness 1 does not name his younger brother as an eye-witness. Thus the presence of Ramesh Chand at that time of the incident is really doubtful.

(12) Nand Kishore's version about the stabbing incident in Court was that after hearing about the quarrel which was going on near the public hydrant at about 8.15 A.M. on 18th February, 1983, he went to the spot and found the appellants giving a beating with a slick to his father. According to him Raj Kumar had accompanied him. In his own words, "When I reached there Krishan Pal stabbed me with a knife on my left shoulder and then my right side below the armpit. 1 was injured on the left shoulder 'Chaku Ki Ragar Aai'. While under the armpit, I received stab would. My sister's son Raj Kumar (was) brushing his teeth. Krishan Murari caught hold of him and Krishan Pal stabbed him on the chest. I bleeded from my injury. Raj Kumar also bleeded from the injury. Raj Kumar was wearing Baniyana and underwear. When I wps injured I sat down. I do not know whether the people gathered there or not. Ramesh Chand took me and Raj Kumar to the hospital in a three-wheeler scooter. We were taken to Safdarjung Hospital. I was medically treated there. At the hospital, Raj Kumar was declared dead. Police came to the hospital and recorded my statement, which is Ex Public Witness I/A. It bears my signatures at point A. It was not read over to me there." In cross-examination he submitted that when he reached. the spot he saw the accused and their mother beating his father with a stick. He corrected himself and said that the accused (meaning thereby the appellants herein) were beating him with fists while their mother was beating his father with stick He denied the suggestion that infact Raj Kumar was wanting to have a bath at the public hydrant to which the mother of the appellants objected and prevented him to do so. He further denied that it was because of the objection raised by the mother of the appellants that Raj Kumar went back to his house and informed their father Lachhi Ram who Along with other relations armed with sticks came to the spot and assaulted Smt. Prabbato, mother of the appellants. Regarding the factum of beating being given to his father, he stated that he had said so before the Police but on confrontation of the earlier statement, it was found that that fact had not been recorded.

(13) As we have noticed earlier, in the First Information Report there is no specific role given to Krishan Murari of catching hold of Raj Kumar by this witness The other witnesses who tried to support this version were confronted with their earlier statements in which they had not stated so. It. appears there was a quarrel between Lachhi Ram and the mother of the appellants. From the evidence on record it appears that Lachhi Ram was not sent for medical examination. Lachhi Ram's presence, however, at the spot when the incident took place, cannot be doubted. Lachhi Ram appeared as Public Witness 2. He fully supports the version of Public Witness I Nand Kishore that Krishan Pal did stab him (Nand Kishore). The first injury inflicted resulted in a scratch and the other one was a slab wound near the arm pit. It is not very clear as to why Lachhi Ram was permitted to be cross-examined by the Additional Public Prosecutor. It appears that he (Lachhi Ram) had not supported the version of the Police to a certain extent. According to him after his son and grand son had been removed to the hospital, the police did not visit the spot. He further stated that no one had come to the spot to prepare the sketch. The prosecution case that the sketch was prepared on the pointing out of Lachhi Ram was not corroborated by this witness. The witness had also stated in his testimony that he had also been injured by a danda blow given by the appellants because of which he fell down and after some lime became unconscious and, therefore, did not know as to who took the injured to the hospital. He further staled that Krishan Murari was infact arrested from the house of his father but Krishan Pal ran away.

(14) We have carefully considered the testimony of Lachhi Ran who although declared 'hostile' by the Additional Public Prosecutor as he (Lachhi Ram) did not support the investigation to the extent that it was carried out property or in an orderly manner, yet we are of the view that he supports Nand Kishore to the extent that (1) there was a quarrel on 18th February, 1983 near the public hydrant due to the fact that Prabhato had objected to the people of the locality having a bath there, (2) that the appellants were pre sent Along with their mother when hot words were being exchanged between Lachhi Ram and Prabhato, (3) that Nand Kishore and Raj Kumar reached the spot after hearing the exchange of hot words from their respective houses which are situate nearby the house of the appellants and (4) that Krishan Pal not only gave knife blows to Nand Kishore but also stabbed Raj Kumar.

(15) We may note that apart from Smt. Bimla, Public Witness 6 who is the daughter-in-law of Public Witness 2 Lachhi Ram and sister-in-law of Nand Kishore and Public Witness 5 Ramesh Chand, the other eye-witnesses to the occurrence namely P.W.3TaraChand,P.W.7DharamChand,P.W.15 Daya Ram Public Witness 21 Yudhvir Singh did not support the prosecution case at all. Public Witness 3 Tara Chand in his examination in chief stated that on reaching the spot after hearing the quarrel he saw Krishan Pal stabbing Raj Kumar but as far as injury to Nand Kishore was concerned, he was unable to say as to who had injured him. Public Witness 7 Dharam Chand in his examination-in-chief stated that he had not seen any stabbing incident but had come to know that Raj Kumar had been stabbed. P.W. 21 Yudhvir Singh who bad been named in the F.I.R. as an eye-witness merely stated that he had reached the spot after the injured had been removed. The public prosecutor did not seek permission to cross-examine him. We may note that he is one of the witnesses apart from Dharam Singh whose name is mentioned in the F.I.R. as an eye-witness.

(16) Public Witness 6 Bimla is the wife of Dharam Pal. She says that Prabhato had objected to her washing a gunny bag at the site of the public hydrant on 17th February, 1983 and she reported the matter to her father-in-law, i.e., Lachhi Ram on 18th February, 1983. According to her, her father-in-law on the day of the incident asked Prabhato not to "hurl abuses" and "Prabhato thereupon gave a danda blow on the head of my father-in-law but it hit the shoulder and he fell down unconscious. At that time, myself, my father-in-law, Prabhato and both the accused were only present. When my father-in-law was lying unconscious, Nand Kishore came there of his own. Nobody had raised alarm at that time. When Nand Kishore came there, Krishan Pal stabbed him with a knife. He gave two knife blows to Nand Kishore. There my husband's sister's son Raju came running. Krishan Murari caught hold of him and Krishan Pal stabbed him on the chest. Then Ramesh Chand came there and putting both of them in scooter and took them away. When Krishan Pal stabbed Raj Kumar other people had also come but none had the courage to stop the accused".

(17) In cross-examination she admitted that on 18th February, 1983 she had told all the facts to the Police but the significant fact which is to be noted is that her statement was only recorded under Section 161 of the Code of Criminal Procedure on 13th May, 1983 by Public Witness 22 Rohtas Singh, almost three months after the incident. Inspector Rohtas Singh stated that on 13th May, 1983 he had taken over the investigation of the case and recorded the statement of Smt. Bimla, Public Witness 6 and the supplementary statements of Nand Kishore and Ramesh Chand. He also recorded the statements of a few Constables and after completion of the investigation submitted the report under Section 173 of the Code of Criminal Procedure,

(18) Learned counsel for the appellants correctly pointed out that if Bimla had been an eye-witness as deposed by her and if she had disclosed all these facts to the Investigating Officer on 18th February, 1983, her statement would have definitely been recorded on that day. It appears that after the stabbing incident a lot of people had gathered, possible she was one of them. At any rate she admitted that it was after the incident that Ramesh Chand had come at the spot and taken the injured away. After scrutinising the evidence on record we are of the view that Nand Kishore's statement qua the role of Krishan Pal is corroborated only by Lachhi Ram. Nand Kishores statement that he had been stabbed by Krishan Pal is supported by Lachhi Ram's testimony. We are further of the view that Public Witness 5 Ramesh Chand and Public Witness 6 Bimla for the reasons stated above were not eye-witnesses to the occurrence. We hold that Krishan Pal did give stab injuries to Nand Kishore as well as to Raj Kumar. However, from the testimony and the other material on record, it is unsafe to hold that Krishan Murari had caught hold of Raj Kumar when he was given stab blow by Krishan Pal. The role assigned to him of catching hold of Raj Kumar seems definitely to be an improvement of the earlier statements. We thus hold that case against Krishan Murari has not been proved beyond reasonable doubt. But we uphold the finding of the learned trial Court as far as the offences committed by Krishan Pal are concerned. Thus we reject the appeal of Krishan Pal challenging his conviction under Sections 302 Indian Penal Code and 324 Indian Penal Code while allowing the appeal of Krishan Murari. We find that Krishan Murari is on bail. The bail bond and the surety bond are hereby discharged.

(19) Now reverting to the question of sentence to be imposed on Krishan Pal. As we have noticed in the beginning that it is the admitted case of the prosecution that he was 18 years old at the time of commission of offence. Infact in the Charge which was framed on 19th July, 1983, the learned Judge has noticed his age as about 18 years. Therefore, on the date of conviction namely 31st January, i984, this appellant was just about 19 years old. Thus the learned trial Court had the jurisdiction to pass an order under Section 5 of the Punjab Borstal Act as extended to the Union Territory of Delhi. It was within its jurisdiction to have directed that in lieu of the sentence of life imprisonment imposed on the appellant he be detained in a Borstal institution for not less than 2 years but not exceeding 7 years. As the learned trial Judge did not hold any inquiry as required under Section 13 of the Act or pass an order as envisaged under Section 5 thereof, we wanted to hold an inquiry. But the respondents did not contest the age of Krishan Pal. Therefore, the necessity did not arise. We find from the record that the appellant Krishan Pal is not a previous convict. The power of the Court to pass a sentence of detention in a Borstal institution in the case of a convict under 21 years of age in lieu of rigorous imprisonment is provided in Section 5 of the Act. That Section reads : "5.Powers of courts to pass a sentence of detention in a Borstal institution in the case of a convict under twenty-one years of age in lieu of transportation or rigorous imprisonment:-(1) When any male person less than twenty-one years of age is convicted of an offence by a court of Session, a Magistrate specially empowered under Section 30 of the Code of Criminal Procedure, 1898, or a Magistrate of the first class, or is ordered to give security for good behavior and fails to give such security and when by reason of his criminal habits or tendencies or associations with persons of bad character it is expedient in the opinion of the Judge or Magistrate may, in lieu of passing a sentence of transportation or rigorous imprisonment, pass an order of detention for a term which shall not be less than two years and shall not exceed seven years when the order is passed by a court of sessions or the Magistrate specially empowered under Section 30 of the Code of Criminal Procedure, 1898, and shall not be less than two years nor exceed three years, when the Forder is passed by a Magistrate of the first class not so empowered. (2) When any Magistrate, , empowered to pass such order, is of opinion that an offender convicted by him is a person in respect of whom such orders should be passed in accordance with the provisions of Sub-section (1) he may, without passing any sentence, record such opinion and submit his proceedings and forward the accused to the District Magistrate to whom he is subordinate. (3) The District Magistrate to whom the proceedings are so submitted may make such further enquiry (if any) as he may deem fit and pass such order for the detention of the offender or such other sentence or order, as he might have passed if the trial had been held by him from its commencement."

(20) The trial Court has not passed the order contemplated under the provision quoted above. Under Sub-section (2) of Section 10 of the Punjab Borstal Act, 1926, an appellate Court in exercise of its powers or the High Court in exercise of its revisional powers is entitled to alter the sentence of imprisonment if it considers it expedient to do so. That provision reads : "(2)Notwithstanding anything contained in Section 123 of the Code of Criminal Procedure, 1898, when a person who at the time of his conviction was less than twenty-one years of age has been convicted of an offence, or when such person on being ordered to furnish security for good behavior has failed to furnish such security, an appellate Court or the High Court in the exercise of its powers of revision, may in pursuance of Sub-section (1) and the provisions of the Code of Criminal Procedure, 1898, and after making such inquiry as it may deem fit, alter a sentence of imprisonment or an order of commitment to prison under Section 123 of the Code of Criminal Procedure to an order of detention, if for reasons described in Sub-section (1) of Section 5, it considers such alteration expedient, and may alter an order of commitment to prison under Section 123 of the Code of Criminal Procedure, as the case may be, provided that the sentence of imprisonment, order of commitment, or order of detention, shall not be in excess of the powers of the trial Magistrate or court."

(21) In this case we find that according to the testimony of Bimla, P.W. 6 (which witness we have held to be not present at the time of occurrence), there was an exchange of hot words between her and the mother of the appellants on 17th February, 1983, a day prior to the incident. This witness wanted to wash a gunny bag at the public hydrant which is installed admittedly a toot or two outside the house of the appellants in front of the main door (as per the sketch Ex. Public Witness 9/A). It is reasonable to believe her to the extent that she responded the mailer to her husband and her father-in-law Lachhi Ram, Public Witness 2 It is on the record that on the next day, i.c, the date of occurrence, Prabhato the mother of the appellants objected to the men- folk having bath at that public hydrant. It seems to us that her objection was valid as the ladies in her household were bound to feel embarrassed. On her objection a quarrel ensued between her and Lachhi Ram and the appellants joined in it. The near relations of Lachhi Ram also collected there. Thereafter the stabbing incidents took place. We are not for a moment condoning the act of Krishan Pal. He did commit a dastardly act. We are upholding his conviction under Section 302 Indian Penal Code as well as under Section 324 Indian Penal Code But keeping the background of the case in view and particularly the fact that he was just about 18 years old and possibly due to misplaced loyally to his mother he committed the offence, we are of the view that he ought not to be permitted to associate himself with hardened criminals any longer. As we have noticed, the record shows that he is not a previous convict. It appears that he was arrested on 18th February, 1983. He was not released on bail during trial. Further his application for suspension of sentence imposed on him vide judgment and order dated the 31st January, 1984 was rejected by this Court. Thus he has already spent almost five years ; one year as an undertrial and four years of imprisonment. He has spent this period with hardened criminals. He ought not to be associated with them any longer. We are of the view that it is expedient that he should be detained in a Borstal institution. The maximum period for which, under Section 5 of the said Act, the appellant could be detained is seven years, but four years have already elapsed from the date of the impugned judgment. As at present advised, we are of the view that on altering of the sentence to detention, the appellant would under law forego the remissions which he has already earned. Therefore, while altering the sentence of imprisonment for life and further rigorous imprisonment of 9 months, we direct that the appellant Krishan Pal be detained in a Borstal institution for three years from today. We hope that in these three years he is given some vocational training which enables him to lead a better life after his detention period.

(22) Thus we alter the sentence of life imprisonment awarded to the appellant to that of detention in a Borstal institution for three years in all from today. The appeal of Krishan Pal is allowed to the extent indicated above.