Shiv Kumar And Karan vs State
2002 Latest Caselaw 1413 Del

JUDGMENT

R.S. Sodhi, J.

1. Criminal Appeals 70 of 1997 and 79 of 1997 are directed against the judgment and order dated 19.11.1996 of the learned Additional Sessions Judge in Sessions Case No. 72/96 holding the appellants guilty under Section 302/34 IPC and sentencing each of them to undergo rigorous imprisonment for life with a fine of Rs. 500/- and in default of payment of fine, to further undergo rigorous imprisonment for one month.

2. Brief facts of the case, as noted by the learned Additional Sessions Judge, are that:

"On 18.8.94, PW13 Inspector Mohan Lal was handed over D.D.No. 55B for enquiry which is Ex.PW13/A by Const. Hari Singh when he was patrolling the area at about 3.45 p.m. He went to the spot Along with the said constable where he was informed that the injured had been taken to G.T.B. Hospital. He went to the hospital leaving behind Const. Hari Singh at the spot to safe guard it. Const. Veer Pal had also reached there in the said hospital. He collected the MLC of the injured Ram Sahai. Ram Sahai was declared dead as brought in the hospital. He also received copy of d.D.Ex.PW13/B in the said hospital through const. Veer Pal. The complainant Smt. Girja Rani met him in the hospital. He recorded her statement which is Ex.PW6/A. He made his endorsement on the said statement and sent the ruqqa through Const. Veer Pal to the P.S. for getting the case registered. The copy o the FIR is Ex.PW11/B.

Const. Veer Pal brought the ruqqa and copy of the FIR at the spot. He went to the spot from the hospital.

He inspected the spot and prepared the site plan Ex.PW13/C at the instance of the complainant. He got the spot photographed. He summoned the crime team. He seized from the spot the earth control, blood and a handle of the knife having the inscription Super Z and sealed those articles and seized the same vide memo Ex.PW7/A. He recorded the statements of the witnesses. He again went to the hospital. He conducted the inquest proceedings of the dead body which are Ex.PW2/A and Ex.PW3A. He made an application Ex.PW13/D for the post mortem of the dead body. He prepared death report Ex.PW13/E.

He wrote the brief facts Ex.PW13/F. He got the dead body post mortem. The death certificate is Ex.PW13/G. The MLC is Ex.PW13/H regarding the deceased. His request for pot mortem is Ex.PW13/J.

The MLC issued by the hospital is Ex.PW13/K. After the post mortem the dead body was handed over to legal claimants. He seized vide memo Ex.PW13/L sealed parcel and sample containing the clothes of the deceased with corresponding cut of knife. On 19.8.1994, he arrested the two accused persons present in court at the pointing out of the complainant and effected their personal searches vide memo Ex.PW6/C for Karan and Ex.PW6/B for Shiv Kumar. He summoned the draftsman Insp. Devender Singh on 28.10.94 and got the scaled plan mae. He collected the result of the medical examination. He got sent the exhibits to CFSL and collected the CFSL result. The scaled site plan is Ex.PW13/M. He tendered in evidence the CFSL report Ex.PW13/O.

During the investigation, he recorded the statement of Kali Charan, and Vidhya Devi, which are Ex.PW1/A and PW6/A. He had seized from the hospital a sealed envelop containing the shirt of the deceased vide memo Ex.PW13/L and also lifted from the spot the blood of the deceased with the help of cotton and put the same in vial which was sealed by him at the spot. He had also sealed two blood stained pieces of bricks and one handle of the knife. These all were sealed in different parcels with his seal and were taken into possession vide memo Ex.PW8/A. He identified the two bricks pieces by stating that the same were blood stained and were lifted from the spot which are Ex.PW13/A and 2. He also identified the handle of knife which is Ex.PW13/3. He further stated that the accused Jageshwar and Chat Pal were declared P.O. as both of them were not traceable and their supplementary challan was submitted in the court.

After hearing both the parties, a prima facie case under Section 302/34 IPC is made out against both the accused persons. Accordingly, a formal charge under Section 302/34 IPC was framed to which both the accused persons pleaded not guilty and claimed trial.

3. The Prosecution, in order to establish its case, examined, as many as 18 witnesses. Of these 18 witnesses, PW-6, Smt. Girja Devi, is the eye-witnesses, PW-4, Smt. Bundi, is the witness to establish motive while Dr. Anil Kohli, PW-14, is the doctor who conducted post mortem on the deceased. PW-1, Kali Charan, has not supported the Prosecution's version. The Prosecution's case primarily hinges on the testimony of PW-6, Smt. Girja Devi who has stated in her deposition that the deceased was her husband. He was not having illicit relation with any one including PW-4, Smt. Bundi and was killed on 18.8.1994. She has stated that a month prior to the occurrence, four persons including the two present in court, had been loitering near her house. She knew them earlier. According to this witness, the accused were loitering near her house in order to kill the deceased, her husband. PW-4, Smt. Bundi, used to work with the deceased on account of which PW-4's husband, Chatpal, and other persons wanted to kill Smt. Bundi. At about 8.30 p.m. on 18.8.1994 this witness saw the four accused persons in Gali No. 10 near the spot. The deceased came towards the spot from the bus stand when he was caught hold of by these accused persons and Chatpal repeatedly stabbed the deceased with a knife. The occurrence was witnessed by her daughter, Lal Kumar, who was with her at that time. An alarm was raised by both of the but nobody came to their assistance. The accused persons, after causing injuries to the deceased, ran away from the spot. A report, Ex.PW-6/A was lodged with the police which was read over an signed at point 'A'. The deceased expired on account of the injuries inflicted by Chatpal. PW-6 did not support the Prosecution's case as regards the illicit relation of the deceased with PW-4 on the which account this witness was allowed to be cross-examined by the Public Prosecutor who put to this witness her previous statement regarding the motive, but was denied by the witness.

4. PW-4, Bundi, wife of Chatpal, has stated that the deceased-Ram Sahai, was her nephew. She was married 10-12 years ago and was living in Delhi for over six years. She has a daughter aged 3 years and that the witness is a baildar. She has stated that she had taken a house in Kalyanpuri about 3-4 years ago which property was in her name. Jai Narain, her brother-in-law, objected to the purchase of the house in the name of this witness and had been pestering Chatpal to force this witness to give permission for sale of the house; otherwise, Jai Narain would kill this witness. Her husband brought her to Delhi and tried to electrocute her and on this account and out of fear ran away leaving this witness at Delhi. Ram Sahai, the deceased, who was living in the adjacent house took care of Bundi and began looking after her daily needs. The accused, Karan, along with Chatpal came there at about 9 or 10 p.m. about one year ago and they both began quarrelling with the deceased. Chatpal objected to the deceased keeping Bundi and further broke into the house where Bundi was staying and beat her and the deceased. Chatpal had threatened while leaving that he would kill Bundi and the deceased within ten days. This incident was reported to the police and this witness shifted residence to Kondli which was provided for by the deceased. Besides Chatpal, even the other accused persons had threatened Bundi 3-4 times with dire consequences. Shortly after the incident where the deceased and this witness were beaten, on the fateful day at about 3.30 p.m. while she was going towards Khiripur, she was informed that Ram Sahai had been killed by her husband, Chatpal. In fact, according to this witness, Ram Sahai had been killed by Chatpal and three other accused persons. In cross-examination it was put to her that she was having illicit relations with the deceased which was objected to by her husband.

5. PW-14, Dr. Anil Kohli, conducted the post mortem on the deceased. He found the following injuries:

1. Incised stab wound 3.5 c.m. x 0.8 c.m. present over centre on front of abdomen placed obliquely clean cut margins and one angle of the wound being more acute than the other. The lower angle of the bound is placed 1.5 c.m. above umblicus and a midline of front of abdomen. It is spindle shape on dissection the tract of the wound is going upwards, laterally and posteriorly entering the abdominal cavity and cutting the right lobe of liver on its under surface where it terminated. Haemorhages and extravacation of blood present along the track of the wound. Depth of wound is 13 c.m.

2. Incised wound 3.5 c.m. x 0.4 c.m. x 0.1 c.m. present over right side front of chest placed 0.6 c.m. to the right of midline and 22 c.m. below interior border of right clavicle.

3. Incised wound measuring 2 c.m. x 0.1 c.m. x 0.1 c.m. present over right side front of chest placed 3.5 c.m. to the right of midline and 20 c.m. below interior border of clavicle.

4. Incised wound 1 c.m. x 0.2 c.m. x 0.1 c.m. present on the right side front of chest placed 3.5 c.m. to the right of midline and 12.5 c.m. below inferior border of clavicle.

5. Incised wound measuring 4 c.m. x 0.8 x 0.3 c.m. present over inner aspect of right lower arm, placed just above the elbow joint.

6. Incised wound measuring 2.5 c.m. x 0.6 x 0.1 c.m. present over inner aspect of right lover arm placed 3 c.m. above elbow joint.

7. Incised wound measuring c.m. x 0.6 x 0.1 c.m. present over inner aspect of right upper forearm placed just below the elbow joint.

8. (a) Incised wound measuring 1.2 x 0.1 x 0.3 c.m. present over palmer aspect of right index finger placed 0.5 c.m. proximal to finger tip.

(b) Incised wound 1.5 x 0.4 x 0.3 c.m. present over palmar aspect of right middle finger placed 2.6 c.m. proximal to finger tip.

(c) Incised wound 1.4 x 0.2 x 0.3 c.m. present over palmar aspect of right ring finger placed 2.4 c.m. proximal to finger tip. (injuries (b) and (c) are placed horizontally in the same line.)

9. Incised wound 2 c.m. x 0.5 c.m. x 0.2 c.m. present over left side front of chest, inner margin being in midline of front of chest and placed 19 c.m. below inferior border of left clavicle.

10. Incised stab wound measuring 2.4 c.m. x 0.4 c.m. present over left side front of chest. it is obliquely placed inner angle being 6.5 c.m. to the left of midline and upper margin being 2 c.m. below left nipple. It is spindle shape with clean cut margins and one angle of the wound being more acute than the other. On dissection the track of the wound is entering the chest cavity after cutting through the fourth intercostal muscle then cutting through and through the upper lobe of left lung cutting the pericordial sac. and then cutting the left venticular wall of heart and finally terminating in the left venticular cavity. The tract of the wound is going upwards medially and posteriorly and depth of the wound is 10 c.m. Haemorhage and extravascation of blood present along the tract of the wound.

11. Incised wound 1.8 c.m. x 0.3 c.m. x 1 c.m. present over left side of chest placed 11 c.m. below anterior exillary fold and 7.5 c.m. to the left of nipple.

12. Incised wound 3.5 c.m. x 0.3 c.m. x 0.2 c.m. present in left axillary region.

13. Incised wound 3 x 0.3 x 0.2 c.m. present over left side of front of abdomen placed 16 c.m. to the left of midline and 10 c.m. above the hip bone.

14. Incised wound 1.5 c.m. x 0.2 x 0.1 c.m. present over palmar aspect of left hand, placed near root of little finger.

15. Incised wound 1.5 c.m. x 0.2 x 0.2 c.m. present over left side of jaw, placed 7.5 c.m. to the left of midline.

16. Incised wound 2 c.m. x 0.3 x 0.3 present over left side of neck laced 3 c.m. to the left of midline and 2 c.m. below mandable.

Scalp - NAD; Skull - NAD; Bran 1240 gms pale. Neck structures - NAD. Trachea and bronchi -NAD. Rib cage incised wound of intercostal muscle as mentioned earlier. Left plural cavity contains about 750 ml of blood and blood clothes, lungs, right 40 grams pale.

Left 360 grams pale incised wound as mentioned earlier. Pericordial sac contains about 100 ml of blood. Incised wound as mentioned earlier. Heart -260 grams. Incised wound as mentioned earlier.

Abdominal cavity contains about a litre of blood and blood clots. Stomach contains digested food material mucosa normal. Intestines - NAD. Liver - Incised wound as mentioned earlier. 1100 gms. Pale splean 160 gm. Pale Kidneys 100 grams each, pale urinary bladder - NAD.

Underwear and blood sample of deceased duly sealed and handed over to the police. Time since death - about 18 hours. Cause of death - Haemorrhageic shock produced as a result of antemortem injuries to the heart lung and liver caused by sharp edged weapon. Injuries No. 1 and 10 were sufficient to cause death in the ordinary course of nature. Both collectively and individually."

6. It was argued by learned counsel for the appellants that there is nothing on record to show that Karan or Shiv Kumar knew that Chatpal entertained the intention to cause death and, therefore, they should be dealt with for their individual acts. He also argued that the motive of the crime has not been proved and, therefore, the Prosecution's case should be thrown out.

7. We have carefully examined the record of the case.

From the statement of PW-6, who is the eyewitness, as noticed above, we find that the case of the Prosecution regarding the stabbing has been fully supported. Nothing has been brought out in cross-examination to show that the witness is not reliable. It is evident that while Chatpal was inflicting multiple knife blows, the other accused persons held the deceased immobilising him in defense. It cannot be said that there was no common intention for even prior to the occurrence the accused persons had beaten the deceased and PW-4 while threatening them with dire consequences. The threat given was put to action by all the accused persons, each doing his act. Common intention to cause murder of the deceased in this case has been fully proved.

8. Taking into consideration the testimony of PW-4 and PW-6, we find that there is sufficient material on record to justify the conclusion of the trial court holding the appellants guilty under Section 302/34 IPC.

9. We have carefully gone through the judgment under appeal and find that the same suffers from no infirmity.

Consequently, he same is upheld. Criminal Appears 70 of 1997 and 79 of 1997 are dismissed.

JUDGMENT

R.S. Sodhi, J.

10. Crl.A. 79 of 1997 stands dismissed. For orders, see Crl.A. 70 of 1997.