Chiranji Lal vs State (Nct Of Delhi)
2001 Latest Caselaw 808 Del

ORDER

Usha Mehra, J.

1.

Appellant Chiranji Lal has felt aggrieved with the order of his conviction under Section 302 IPC thereby sentencing him for life imprisonment and a fine of Rs.100/-, in default rigorous imprisonment for three months. He has assailed his conviction & sentence primarily on the ground that learned Additional Sessions Judge having acquitted the co-accused Hira Lal after disbelieving the evidence of prosecution witnesses, he could not have convicted the appellant on the basis of that evidence.

2. The factual matrix of this case is that Hira Lal was the owner of House No. B-392, JJ Colony, Hastsal, Delhi. Deceased Smt. Bhagwati was the tenant of one room on the first floor of that house. Shish Mohan (PW-7) was tenant of another room on the first floor. His room was adjacent to the room of deceased Smt. Bhagwati. There was a perennial dispute between the landlord Hira Lal and the tenant Smt. Bhagwati because landlord wanted her to vacate the tenanted premises but she refused to oblige. Present appellant is the brother of said Hira Lal.

3. On 4th September, 1989 at about 10.00 PM while constable Narender Singh (PW-15) was crossing in front of house no.B-392, J.J. Colony, Hastsal he heard the shrieks coming from the first floor of the said house. He went upstairs and saw Chiranji Lal, the appellant herein, inflicting dagger blows to Bhagwati. Bhagwati was lying in pool of blood in the courtyard in front of her room. Hira Lal, the co-accused exhorted to finish her. When constable Narender Singh (PW-15) caught hold of the appellant herein, in the meantime, Hira Lal made good his escape through the stairs. The appellant herein threw the dagger which was in his hand near the feet of the deceased. Because of her shrieks number of people had collected downstair. Out of them someone informed the PCR which came at the spot immediately.

4. Learned Additional Sessions Judge by the impugned judgment acquitted Hira Lal the co-accused. While convicting the appellant herein the learned Additional Sessions Judge relied on the testimony of Shish Mohan (PW-7). As regard witnessing of the actual occurrence, the learned Additional Sessions Judge observed that implicit faith in the testimony of constable Narender Singh (PW-15) could not be placed. For arriving at this conclusion he mentioned that constable Narender Singh (PW-15) in his examination-in-chief stated he saw accused chiranji Lal stabbing the deceased whereas in the cross-examination held on 25th May, 1995 he stated that he had not seen the accused giving knife injuries. He saw merely holding of the knife in the hand of chiranji Lal. However, in the subsequent cross-examination held on 3rd June, 1996, he reiterated that he had seen accused Chiranji Lal giving knife blows to the deceased. This according to the learned Additional Sessions Judge amounted to wavering on the part of Narender Singh (PW-15). Narender Singh (PW-15) was not stead fast on his claim of having seen the actual assault. Counsel for the State contended that this observation by the learned Additional Sessions Judge is not supported from the record. In fact there is overwhelming evidence available on record to establish that constable Narender Singh (PW-15) had witnessed the occurrence. It is an admitted fact on record that constable Narender Singh (PW-15) apprehended this appellant at the spot. On the basis of his statement that DD message No.20-A was sent. On the basis of the rukka the FIR in question was registered. Therefore, it cannot be disputed that constable Narender Singh was present at the spot. HE found the deceased in pool of blood lying in the courtyard and accused inflicting dagger blows. The incident is of 10.00 P.M. The rukka was sent to the police station at 11.00 P.M. So, the presence of constable Narender Singh (PW-15) at the place of crime stood established. At the first available opportunity i.e. in his statement under Section 161 Cr.P.C. he named this appellant to be the person who inflicted dagger blows to the deceased as a result of which she fell down in pool of blood. The mere fact that at one point of time in his cross-examination he mentioned that he saw accused Chiranji Lal holding dagger in his hand does not in any way mean that he had not seen the accused inflicting blows to the deceased. What he meant in his cross-examination of 25th May, 1995 was that he had not seen the inflicting of initial blow. He, however, saw accused inflicting dagger blows when deceased was lying in pool of blood in the courtyard. We see force in the submission of Mr. Chadha, counsel for the State. It is possible that accused might have inflicted some blows before Narender Singh (PW-15) went upstair. He heard shrieks of the deceased and when he reached upstair he saw Chiranji Lal still inflicting dagger blows to the deceased who was lying in the courtyard in pool of blood. Having seen Narender Singh (PW-15) accused threw the dagger which fell near her feet. He tried to run away but before he could do so Constable Narender Singh (PW-15) caught hold of him. Moreover, in his cross-examination conducted on 3rd June, 1996, he clarified that he had seen accused giving dagger blows to the deceased. The appellant herein never confronted Narender Singh (PW-15) with his statement of 25th May, 1995. The reply given by him in his cross-examination dated 25th May, 1995 was never got confronted to the witness when he made further statement either on 12th December, 1995 or on 3rd June, 1996. We cannot lose sight of the fact that the incident had taken place on 4th September, 1989 and Constable Narender Singh (PW-15) was cross-examined on 25th May, 1995, therefore, due to lapse of time he might have said that he had not seen inflicting of knife but when further subjected to cross-examination on 3rd June, 1996, he reiterated his stand. He had been consistent in his version of the incident. Hence it cannot be said that his testimony did not stand the test of cross-examination or is not reliable on this count. The version of Narender Singh (PW-15) got support from the testimony of Gopi Ram (PW-4), father of the deceased. He came at the spot within minutes of the occurrence and saw constable Narender Singh (PW-15) catching hold of accused Chiranji Lal. To the same effect is the testimony of Tirath Ram (PW-9), brother of the deceased. SI Madan Lal (PW-14) also corroborated this aspect of Narender Singh's statement. Having held that constable Narender Singh (PW-15) was present at the spot and saw accused Chiranji Lal inflicting the dagger blow, it was he who caught hold of the Chiranji Lal at the spot, lend support to the version of the prosecution. We find the statement of constable Narender Singh (PW-15) steadfast and reliable. It cannot be said he wavered throughout rather we are of the view that he was consistent in his version throughout. Learnede Addl. Sessions Judge was, thus, not justified in not placing reliance on his testimony.

5. So far as the testimony of Shish Mohan (PW-7) in concerned, as per the testimony of SI Madan Lal (PW-14), he was present at the spot when he reached the place of occurrence. But before their statements could be recorded Shish Mohan left the place. Presence of Shish Mohan (PW-7) is established from the rough sketch plan prepared at the site vide Ex.PW-14/C. It shows the presence of Bimla etc. Etc. in this case would stand for her husband Shish Mohan (PW-7). It was Shish Mohan (PW-7) with his wife Bimla who were occupying the other room on the first floor of this house. Hence, Shish Mohan (PW-7) was the natural witness to have seen the occurrence. Shish Mohan (PW-7) says that he was in his house when he heard the cries of Bhagwati Devi "Bachao Bachao". He came out and saw appellant holding a knife in his hand giving knife blows to the deceased. This part of his statement got support from the testimony of Narender Singh (PW-15). Narender Singh (PW-15) heard the shrieks of Bhagwati Devi on the ground floor. After hearing the same he went upstairs, whereas Shish Mohan (PW-7) was occupying the adjacent room on the first floor itself. It shrieks could be heard by a passerby on the ground floor it is difficult to believe that Shish Mohan (PW-7) did not hear the same while living in the adjacent room. Anyone out of curiosity would come out to see why a lady was crying so loudly. Hence, the learned Additional Session Judge rightly observed that Shish Mohan was the natural witness to the occurrence.

6. Contention of Mr. Ahuja that Shish Mohan's statement was recorded after 7 days, hence, creates doubt about his presence at the sight has no force. SI Madan Lal stated that he saw Shish Mohan (PW-7) and his wife standing there when he reached at the spot. However, when he started the formalities, they left. Therefore, his statement on that day could not be recorded. Shish Mohan (PW-7) was a neighbour, his wife, Bimla (PW-9), who has been declared hostile admitted that on the date and time of occurrence, she Along with her husband Shish Mohan were present in their room. Therefore, it cannot be said Shish Mohan had been planted as a witness. Moreover, for the negligence of the investigating officer in recording the statement of Shish Mohan (PW-7) late by 7 days, it cannot be said that his statement become unreliable or lost evidenciary value. Secondly, rough site plan Ex.PW14/C was prepared at the pointing out of Narender Singh (PW-15). In the said document Ext.PW14/C at point 'D' where Bimla (PW-9) etc. were standing meaning thereby even Narender Singh (PW-15) saw Bimla and her husband on the date of incident at point 'D' i.e. in their own courtyard. The dividing wall between the courtyard of the deceased and that the Shish Mohan (PW-7) was 100 cm. in height i.e. approximately 3 or 3-1/2 ft. Therefore, standing at point 'D' of his courtyard as shown vide Ex.PW14/C, Shish Mohan (PW-7) could easily see the occurrence. It is a fact on record that when Narender Singh (PW-15) climbed the stairs and reached the courtyard of the deceased there was no other person present in deceased's courtyard except the accused. Shish Mohan (PW-7) was standing in the portion of his courtyard. Therefore, from the circumstances and the events which have been unfolded on the record by documentary and ocular evidence, we find no infirmity in the conclusion arrived at by the learned trial court that the testimony of Shish Mohan (PW-7) is truthful and reliable.

7. Having come to the conclusion that the testimonies of constable Narender Singh (PW-15) and of Shish Mohan (PW-7) inspire confidence and that they were present at the spot and had seen the accused inflicting dagger blow to the deceased, the next question which arises for consideration is the effect of acquittal of the co-accused Hira Lal. We find acquittal of Hira Lal in no way weaken the case of the prosecution. The appellant has not been convicted in the aid of Section 34 IPC. Hence, acquittal of Hira Lal is of no benefit to this appellant.

8. The presence of the appellant at the spot with dagger in his hand is duly established. From the testimonies of Shish Mohan (PW-7) and Narender Singh (PW-15) it is also established that he inflicted dagger blow. This fact also find support from the blood stained pants and shirt of accused Chiranji Lal, taken into possession at the spot. These clothes were sent to the Forensic Science Laboratory for test and report. Serological report was submitted vide Ex.PW3/C and ExPW3/D. These show that on the pants (Ex. P7), there was human blood of 'O' Group. Similarly on appellant's shirt (Ex. P8) there was human blood of 'O' Group. Deceased's blood group was of 'O' group. If Chiranji Lal had not been there and had not inflicted the injuries on the deceased, how would deceased's blood fallen on his shirt and pant. It is not appellant's case that he lifted the deceased or touched her or went near her. How her blood came on his pant and shirt, he has not explained. To a question No. 29 put to him in his statement under Section 313 Cr.P.C. he merely denied it. Vague denial is no denial in the eye of law. Question No. 29 is reproduced as under:-

"Q.29 It is also in evidence that the pant Ex. P7 and Shirt Ex. P8, which you were wearing at that time were stained by blood and same were taken in possession vide memo Ex. PW14/G, after sealing the same with MLC. What do you say?

Ans. It is wrong."

9. He did not explain how his shirt and pant got blood stains. He took the plea that he was not present at the spot on that day and at that time. If that be so then all the more a reason he should have given cogent reason of his clothes getting blood stains and that too the blood of the deceased. According to him, he was arrested the next day from his house. That he was falsely implicated. This shows that he had no explanation to offer of the blood stains on his pant and shirt. This circumstance coupled with the fact that Constable Narender Singh (PW-15) and neighbour Shish Mohan (PW-7) found him inflicting the dagger to the deceased lead to only on irresistable conclusion that deceased was done to death by this appellant.

10. The motive to eliminate her has also been established from the testimony of Gopi Ram (PW-4) and Tirath Ram (PW-9). Deceased was tenant of a room of Hira Lal brother of the appellant. Their relations with deceased were strained because they wanted her to vacate the premises but she declined to do. Moreover, she had not been paying the rent. It was for this reason the appellant decided to eliminate her.

11. Mr. Ahuja contended that testimony of Shish Mohan (PW-7) should not be relied because Supreme Court in upteem number of cases has observed that when an eye witness does not come forward to make the statement rather hold himself back and there is an inordinate delay, his testimony should not be relied upon. There is no quarrel with this proposition. But on the facts on record, the ratio of Supreme Court as pointed out is distinguishable on facts. In the present case Shish Mohan's presence at the spot at the time, place and date is not in dispute. It was the negligence of the investigating officer who did not record his statement immediately. Whereas in a case where the statement of a witness who had seen the occurrence and concealed it for considerable time and then come forward, the Apex court observed that such a witness's statement is doubtful but not when the presence of the witness at the time of occurrence is not in doubt and negligence in recording the statement was that of the Investigating Officer.

12. Mr. Ahuja then contended that the learned Additional Session Judge has made observation that the investigation in the present case was tainted and yet relying on the statement of Shish Mohan (PW-7) convicted the appellant. there is not doubt that the learned Additional Sessions Judge has made those observations against the investigating Agency but the fact that Constable Narender Singh (PW-15) and Shish Mohan had seen appellant inflicting blow to the deceased the defect in the investigation will not fail the case of the prosecution which otherwise stood established from the unrebutted testimonies of Shish Mohan (PW-7) and Constable Narender Singh (PW-15). Their statement inspire confidence. They are trustworthy and straight forward. The recovery of the dagger at the spot and the blood stained clothes of the accused Chiranji Lal also lend support to the case of prosecution. Observation of Supreme Court that even a chance witness can be relied upon if it inspires confidence squarely apply to the facts of this case. We find that statement of Constable Narender Singh (PW-15) and of Shish Mohan (PW-7) inspire confidence. Their statements are corroborated by the documentary evidence available on record.

13. For the reason stated above, we are not able to persuade ourselves to accept the contentions of the appellant. The appeal is accordingly dismissed but with no order as to costs. Order be conveyed to the appellant through Superintendent Central Jail, Tihar.