Manoj @ Mannu vs State Of Delhi
1999 Latest Caselaw 1032 Del

ORDER

K.S. Gupta, J.

1. This appeal by the accused/appellant is directed against the judgment and order both dated 13th August, 1998 of an Addl. Sessions Judge convict-

ing him under Section 307 IPC and sentencing to undergo R.I. for 5 years and pay a fine of Rs. 5,000/-. In default of payment of fine, he was to further undergo R.I. for 1 year.

2. Case of the prosecution as born out from the charge sheet filed under Section 173 Cr.P.C., in brief, is that on receipt of copy of DD No. 8 dated 1st March, 1996, HC Jaipal Singh PW-4 alongwith Constable Vijender Kumar PW-8 reached Gali No.10, Prem Vihar, Shiv Vihar and there he came to know that the injured had been taken in a PCR van to G.T.B. Hospital. PW-4 went to that Hospital and collected MLC, Ex. PW-10/A and recorded the statement, Ex. PW-1/A of Vinod Kumar, injured (PW-1) to the effect that on that date around 11.00 AM accused Manoj @ Mannu came to his house and asked his mother to send him outside as he wanted to have some talks with him as told to him by his mother. He came out of the house in the gali. Accused enquired from him why his friend abused him yesterday at Shiv Vihar pulia and why did he not sto him from abusing inspite of the fact that he was present there. Thereupon, he told the accused that he would make his friend understand. However, the accused started hurling abuses on him and when he opposed, he in a fit of anger took out a knife from his pocket and assaulted him in the abdomen, chest and the right thigh saying that he would kill him. He raised the alarm of 'bachao bachao'. In the meantime, his mother and a neighbour reached there. Accused ran away from the spot. He was taken in a police van to. G.T.B. Hospital. After making endorsement Ex. PW-4/A on statement Ex.PW-1/A, the same was sent by PW-4 to the police station and on the basis thereof FIR (carbon copy Ex. PW-11/A) was registered under Section 307 IPC. Investigation was handed over to SI Jagdish Prasad, PW-5. During investigation, PW-5 recorded the statements of the PWs, prepared the site plan, Ex. PW-5/A and arrested the accused on 2nd June, 1996. Pursuant to the disclosure statement Ex.PW-5/B the accused got recovered dagger Ex. P-1 and the same was taken into possession vide memo, Ex. PW-5/C by PW-5. Vinod Kumar, PW-1 was opined to have suffered grievous injuries. After recovery of dagger, Section 27 Arms Act was added. Accused had thus committed the offences under Sections 307 IPC and 27 Arms Act.

3. To bring home the charges framed under Sections 307 IPC and 27 Arms Act against the accused/appellant, the prosecution examined 11 PWs in all.

4. In the statement under Section 313 Cr.P.C., the plea taken by the appellant is of plain denial.

5. At the outset, it may be stated that the appellant was acquitted of the charge under Section 27 Arms Act as the trial court was of the opinion that the alleged recovery of dagger, Ex. P-1 on his pointing out, was doubtful.

6. In regard to the offence under Section 307 IPC for which the appellant stands convicted the statements of Vinod Kumar, PW-1, PW-2 Smt. Kashmiri, mother of PW-1 and Smt. Savitri, PW-3 are relevant. PW-1 deposed that on 1st March, 1996 around 10.00 A.M. while he was sleeping, the accused came to his house and enquired from his mother about him. His mother woke him up and told that someone had come to meet him. Accused took him towards temple on the pretext of playing cricket. After taking by the side of wall, the accused gave knife blows in the abdomen, chest and thigh to him. He became unconscious. His mother reached the spot and took him to G.T.B. Hospital. There the police recorded his statement, Ex. PW-1/A which bears his signature. In cross-examination, he stated that after he came out of the house on being woken up he found the accused standing outside the main gate of house. He went with the accused for a distance of 100 to 150 paces. He told the police that the accused took him from the house on the pretext of playing cricket (confronted with Ex. PW-1/A where it is not so recorded). After the occurrence, his baniyan, Shirt and jean became blood stained and excepting the jean which was returned to him remaining clothes were left behind in the hospital. His statement was recorded by the police when he was in emergency. There was no enmity or grudge between him and the accused nor anything had happened which might have motivated him to strike him. He denied the suggestion that on a day prior to 1st March, 1996 at Shiv Vihar pulia, his friend had abused the accused and he did not stop him from abusing. He further denied the suggestion that on said dated to told the accused that he will make his friends understand and made statement to that effect to the police (confronted with portion A to A of Ex. PW1/A where it is so recorded).

7. Smt. Kashmiri, PW-2 deposed on 1st March, 1966 at about 10.00 A.M. accused came to her house and enquired about PW-1. He told to woke him up. Accused took along PW-1. After sometime, Savitri, a neighbour came and told her in regard to PW-1 being assaulted. When she reached the spot, she found PW-1 in injured condition. On enquiry, PW-1 told that he was assaulted by the accused. When cross-examined by the A.P.P., she denied of having made the statement that the accused assaulted PW-1 with a dagger after she had reached the spot on being called by Savitri (confronted with portion A to A of the statement, Ex. PW-2/A under Section 161 Cr.P.C. where it is so recorded). On being cross-examined on behalf of the accused, she deposed that Savitri Devi came to inform her about the quarrel after about half -an-hour of the departure of PW-1 and there are many residential houses near the spot. She denied the suggestion that the accused had been implicated falsely on the asking of Omkar who is having enmity with the father of the accused on account of purchase of a house.

8. Smt. Savitri, PW-3 stated that she did not remember the date and month of occurrence. When she was present at her house and cleaning utensils around 10-11 A.M. she saw the accused and PW-1 standing near her house and quarrelling with each other. She went to the house of PW-1 and called his mother. On her return to the spot, she found PW-1 lying in injured condition on the ground. Accused had fled away from the spot. When cross-examined by A.P.P., she denied of having seen the accused assaulting PW-1 with a knife and having made such a statement to the police (confronted with portion A to A of the statement, Ex. PW-3/A under Section 161 Cr.P.C. where it is so recorded). In cross-examination on behalf of the accused, she stated that the distance between her house and that of PW-1 is about 60 to 70 paces. She denied the suggestion that she did not see the accused and PW-1 quarrelling and being neighbour of PW-1, had deposed falsely.

9. PW-1 on being taken to G.T.B. Hospital by Constable Prasanna Pathak, was medically examined by Dr. T.R. Ramtek, PW-10, then working as G.M.O. PW-10 stated that on medical examination he found - 1. stab wound over abdomen 1 Cm. above umbilicus, 2. stab wound at right areola near nipple 3 Cm. long and 3. stab wound on upper part right thigh on lateral side 1 Cm. He prepared the MLC, Ex. PW-10/A and referred PW-1 for surgery and X-Ray. Dr. Umesh, Sr. Surgeon has opined the injuries suffered by PW-1 as grievous caused by a sharp object. MLC, Ex. PW-10/A bears the signature of Dr. Umesh which he identifies. In cross-examination, he stated that he had worked with Dr. Umesh but had not seen report of surgery prepared by Dr. Umesh. Dr. Umesh is now not working in the hospital.

10. It was urged by Sh. K.B. Andley appearing for the appellant that the weapon of offence was neither shown to the concerned Doctor or the injured, PW-1 nor sent to CFSL for opinion. Blood stained baniyan and shirt of PW-1 having corresponding cut marks seized by the police, were also neither shown to PW-1 at the time his statement was recorded in Court nor sent to CFSL for opinion. According to him, even the blood stained earth from the spot was not seized by the I.O. nor Dr. Umesh who opined the nature of injuries suffered by PW-1 being grievous, examined by the prosecution. Further, the prosecution was responsible for padding the evidence as is manifest from the depositions of Smt. Kashmiri, PW-2, Smt. Savitri, PW-3 and the finding recorded by the trial court while exonerating the appellant of the charge under Section 27 Arms Act. Strong reliance was placed on the decisions in Irlapati Subbaya Vs. The Public Prosecutor, Andhra Pradesh, 1974 SCC (Crl.) 455 and Lakshmi Singh & Ors. Vs. State of Bihar, 1977 CAR 28 (SC).

11. It may be noticed that in both Irlapati Subbaya and Lakshmi Singh's cases (supra), it was suggested to the prosecution witnesses/taken by way of defense that the real occurrence had taken place elsewhere and in that context on the facts of those cases it was held that omission on the part of prosecution to seize from the spot the blood stained earth and to send it for Chemical examination which could have fixed the situs of assault, was fatal to the prosecution. Ratio in both these decisions have no applicability to the facts of the present case as the plea taken by the appellant in the statement under Section 313 Cr. P.C. regarding the occurrence is of plain denial. It may further be noticed that showing of the weapon of offence and blood stained baniyan and shirt having corresponding cut marks, if any, to Vinod Kumar, injured (PW-1) or Dr. T.R. Ramtek, PW-10 at the time their statements were recorded in Court, would have only corroborated the testimony of PW-1 in regard to the occurrence in question and because of the lapse pointed out, the prosecution case cannot be thrown out being unreliable. This equally covers the argument in regard to non-for-warding of the weapon of offence and blood stained clothes of the injured to CFSL for opinion. Further, taking note of the statement of Dr. T.R. Ramtek, PW-10, as it stands, the non-examination of Dr. Umesh who opined the nature of injuries of PW-1 being grievous, cannot be destructive to the prosecution case. As regards another limb of argument regarding adding, the criminal justice should not be made the casualty for the wrongs committed by the Investigating Officer. It is pertinent to note that the statement Ex. PW-1/A made by injured, PW-1 which incorporates the first hand version about the occurrence in question is completely silent that the occurrence was witnessed either by Smt. Kashmiri, PW-2 or Smt. Savitri, PW-3. As is manifest from the site plan, Ex. PW-5/A, house of Smt. Savitri, PW-3 is just in front of the place of occurrence and, therefore, there was every likelihood of PW-3 having seen the injured (PW-1) and the appellant quarrelling with each other as deposed to by her. Statements referred to above recorded on oath of both PWs. 2 & 3 inspire confidence despite their denial of having made the portions A to A of the statements recorded under Section 161 Cr.P.C. which give the impression as if the occurrence in question was witnessed by them. Further, not much significance need be attached to the conclusion reached by the trial court in regard to the alleged recovery of dagger at the pointing out of the appellant, being doubtful as the recovered dagger which could have been used by way of corroborative evidence, was not connected in evidence as having been used for assault on PW-1 by the assailant. PW-1 is not shown to have any enmity with the appellant. Deposition of PW-1 coupled with the statements of said PWs. 2, 3 & 10 prove beyond any shadow of doubt that it was the appellant alone who was responsible for causing the injuries found on the person of PW-1 on 1st March, 1996. Looking at the seat of injuries particularly the abdomen and chest as also the fact that the appellant repeatedly stabbed PW-1, the trial court had rightly convicted the appellant under Section 307 IPC and awarded him the sentence of imprisonment and fine as noticed above. Appeal, thus, deserves to be dismissed being without merit.

12. Consequently, the appeal is dismissed.