Kishen Kumar vs State [Along With Criminal Appeal ...
2005 Latest Caselaw 180 Del

JUDGMENT

R.S. Sodhi, J.

1. By Criminal Appeal No. 778 of 2002 and 775 of 2002 the appellants seek to challenge the judgment and order dated 31.8.2002 of the Additional Sessions Judge, Delhi, in Sessions Case No. 202/96 whereby the learned Judge held Joginder Singh and Lalit Kumar guilty under Section 323 IPC while holding Kishen Kumar guilty under Section 302/307 IPC and further by his order dated 2.9.2002 sentenced Kishan Kumar under Section 302 to undergo imprisonment for life and to pay a fine of Rs.5000/- and I default further rigorous imprisonment for one year. Under Section 307 IPC to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/- and in default further RI for six months. Both the sentences were directed to run concurrenty. Accused Joginder Singh and Lalit Kumar were sentenced to undergo imprisonment for one year each under Section 323 IPC.

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

''....that one Girish Kumar and Krishen Kumar were admitted in RML hospital and the doctor reported on the MLC of Krishen Kumar as brought dead whereas injured Girish Kumar made a statement stating that at 7.15 p.m. he was present at his house and his father told him that while he was returning from his office he asked the boys not to play cricket in the street on which Joginder s/o Raja Ram laughed at him gave a hit to him whereas Lalit gave a slap on his face. These acts of those boys were disliked by him and this complainant then went to the spot where he found Joginder, Lalit, Kishen, Rajesh, Golu s/o Bhim Sain, Ravinder s/o Hira Lal, Babla @ Tunda and Raja Ram standing and this complainant asked as to why they had misbehaved and gave beating to his father which made these persons annoyed and they started abusing him and he started raising noise Bachao Bachao which attracted Kishen s/o Ramesh to the scene of occurrence and he tried to intervene and Joginder, Lalit, Raja Ram raised a lalkara ''Aaj In Salon Ko Jaan Se Khatam Kar Do Bare Aaye Baap Ki Aad Laine Wale''. Joginder was armed with a Thapi, Rajesh and Golu are stated to have caught hold of him and Kishen was caught hold of by Ravinder, Babla alias Tundya and Lalit brought a danda and he was give beating by Joginder and Lalit with thapi and danda and Kishen gave knife blow on complainant's head and on hearing the noise Jaswanti and Rajni and other persons came there and they were removed to the hospital where Kishen was reported brought dead.''

3. On the material on record, charges under Sections 307/149 and 302/149 IPC were framed. Accused persons pleaded not guilty and claimed trial.

4.The prosecution, to prove its case, examined as many as 21 witnesses. Of these, PW-1, Madan Kapil, identified the dead-body of the deceased, Kishan Chand. HC Harlal Singh, PW-2, as Mohrar, deposed about the deposits made with him by SHO, Jia Lal, on 24.8.1992, 27.8.1992 and 29.8.1992 as also on 2.9.1992 and 6.9.1992. He also proved sending of the pulandas to CFSL on 7.9.1992 besides proving the entires as Ex.PW-2/A.

5. PW-3 is Head Constable Saleem Ahmad who states that on 28.4.1992 he was posted at Police Station, Paharganj on which date he along with SI Madan Gopal and HC Ramesh Kumar went to RML Hospital where SHO Jia Lal Sahni met them and recorded the statement of the injured witness, Girish Kumar, PW-4 after Girish Kumar was declared fit for statement. It was this statement which formed the basis of the FIR.

6. PW-4, Girish Kumar, the injured witness, is the most material witness in this case. It is primarily on his testimony that the case of the prosecution rests.

7. PW-5, is HC Ram Bahadur Singh who deposes that he was posted at Police Station Paharganj and was working as Duty Officer where he received the rukka from SHO Jia Lal Sahni through Constable Saleem Ahmad on the basis of which he recorded FIR No. 384/92, under Sections 147/148/149/307/302 IPC. The original is Ex. PW-5/A.

8. PW-6 is Constable Netra Singh who deposes that on 24.8.1992 while working as duty constable in the Hospital, he saw Kishan Chand and Girish Kumar being brought to the hospital by Jaswanti. The doctor on duty declared Kishan Chand 'brought dead' while Girish Kumar, in an injured condition, was attended to by the doctor. PW-6 informed the police station about their admission in the hospital. He also received one pulanda containing clothes of the deceased, Kishan Chand, duly sealed by the doctor along with sample seals which were handed over to the Investigating Officer vide Memo Ex. PW-6/A.

9. PW-7, Constable Rajinder Pal states that on 24.8.1992 at the request of the Investigating Officer, he went to house No. 4336, Bari Basti, Paharganj and took nine photographs of the place of occurrence. The negatives were exhibited as Ex. PW-7/1-9 and positives, Ex. PW-7/A-10 to A-18.

10. PW-8, is Rajni Devi. She states that on 24.8.1992 at about 7/7.15 p.m. she was present in her house and, on hearing noise, followed her son, Girish Kumar, who had gone out earlier on hearing noise of quarrel between the accused and her husband at which time her husband had been beaten up by Rajesh, Joginder and others. She, however, had not seen the occurrence. Kishan Chand, the brother of her sister-in-law, also reached the spot. At that time this witness saw deceased, Kishan Chand, being inflicted knife blow by the accused, Kishen Kumar, who also inflicted knife blow on the head of Girish Kumar. She categorically states that she herself had seen the accused, Kishen Kumar, giving a blow to the deceased, Kishan Chand, and her son, Girish Kumar. he saw the deceased, Kishan Chand, bleeding profusely. Jaswanti Devi, Kadan and Khyali Ram took the deceased to RML Hospital in a three-wheeler. She deposes that her blood-stained saree was seized. Girish Kumar was also taken to the RML Hospital in the same three-wheeler. The seizure memo of her saree is Ex.PW-8/A. In cross-examination, this witness states ''it is correct that except accused, Kishen Kumar, no other accused had knife in hand and they had not given any knife blow and that my statement that all accused persons had given knife blows is wrong''. She also states that ''I had stated before the police that when I reached the place of occurrence, accused, Rajesh, and his son, Bhola (Babla) and Tuiyan (Manjeet) etc. all ran away. It is correct that I had seen the accused aforesaid only running away and had not actually seen them giving blow to anyone''.

11. PW-9, Jaswanti, states that on 24.8.1992 at about 7/7.15 p.m. she was present in her house on the second floor, she heard noise of quarrel in the gali. Her brother, Kishan Chand, was present in the house and hearing the commotion, Kishan Chand, deceased, went down followed by Jaswanti. There she saw that her brother, Kishan Chand, was lying on the ground while Kishen Kumar, accused, Rajesh, Joginder, Lalit, Babla, Ravinder and Mohinder were running away from the spot. She also deposed of her taking the deceased, Kishan Chand, and injured, Girish Kumar, to RML Hospital. Her blood stained saree was seized vide Memo Ex. PW-9/A. In cross-examination, she states that Rajni had come to the spot after her.

12. PW-10, Khyali Ram states that on 24.8.1992, he was present in his house along with his wife, Rajni and his daughter. He states that he resides on the first floor while Jaswanti, his sister-in-law is on the second floor of the house. He was in the toilet when his wife informed him that there was a quarrel going on outside the house. He also came down and found commotion near the chopal. Some children were seen coming running. There he saw Kishan Chand, deceased, lying unconscious and bleeding. he also saw his son, Girish, with injuries on his head. His wife and Jaswanti took Kishan Chand and Girish to the hospital on a three-wheeler. This witness informed the PCR. Local police seized his blood stained bushirt. He states that he had not seen who had caused injuries to Kishan Chand, deceased, or Girish Kumar since the assailants had run away. In cross-examination, this witness states that ''it is correct that on 7.9.1992 I had pointed out accused, Bholu and Rajesh present in court who were arrested and personal search conducted vide Memo Ex.PW-10/A, PW-10/B''. He also states that ''it is correct that accused, Joginder, had got recovered thapi used in quarrel on 27.8.1992 and that the same was seized vide Memo Ex. PW-10/C. It is correct that the police had lifted blood from the place of occurrence on 28.8.1992 along with other articles mentioned in the seizure memo, Ex. PW-10/D. He identified the thapi, Ex. P-4 which was got recovered by Joginder. On further examination, he states that ''Ex. P-4 was not sealed in his presence nor was the chappal, Ex.P-5.

13. PW-11, SI, Mukesh Kumar is the draftsman who prepared the scaled sketch Ex.PW-11/A. PW-12 is Constable Dinesh who handed over seventeen parcels duly sealed at the CFSL vide receipt No. RC 84/21. PW-13, Daulat Ram is the witness of arrest of Raja Ram. PW-14, Dev Kumar stated to have identified accused, Joginder. PW-15, HC, Ramesh, states that on 24.8.1992 he was posted at Police Station Paharganj, working as motor-cycle rider. He delivered copy of the FIR to the Metropolitan Magistrate and other police officials at their residence. PW-16, Inspector Madan Gopal, states that on 25.8.1992, while posted, as SI, Police Station Paharganj, along with Inspector J.L. Sahni, SHO, Police Station Paharganj, went to Lady Hardinge Hospital where inquest proceedings were being conducted on the deceased, Kishan Chand. The body was sent for post mortem after inquest proceedings. He collected the MLC of the injured, Girish Kumar, from where SHO, J.L. Sahni took over the investigation. On 25.8.1992, he along with SHO and Head Constable Ramesh, on a secret information, arrested Joginder and Ravinder near the New Delhi Railway Station at about 10.30 p.m. He states that accused, Joginder and Ravinder, while in custody, made disclosure statements separately, Ex. -16/D and E respectively. On 27.8.1992, Joginder made a disclosure statement and led the police party to C-5/126, Yamuna Vihar and got recovered one thapi from the bush near the Mandir which was sealed vide Memo. Ex.PW-10/C. On 29.8.1992, he joined in exestuation when Lalit Kumar and Kishen Kumar, in custody, made disclosure statements, Ex.PW-16/F and ExPW-16/G respectively. This witness deposes that Lalit Kumar got recovered danda from near the wall of balika chaman from the bushes, Ex. PW-16/H. Kihen Kumar got recovered dagger from near platform No. 10, New Delhi Railway Station, Ex. PW-16/J. On 2.9.1992 he collected the post mortem report vide Ex. PW-16/K. On 17.9.1992, he along with Ramesh Chand on pointing out of PW-10, Khayali Ram arrested olu and Rajesh and search memos prepared Ex.PW-10/A and Ex.PW-10/B. The accused made disclosure statements. On 23.9.1992 Raja Ram was arrested from his office. He too made a disclosure statement.

14. PW-16 is Inspector Madan Gopal. This witness gave a detailed account of the recoveries, PW-17, Constable Arvind Kumar, is witness of handing over of the dead body to the father of the deceased. PW-18, Dr. Yogesh Chander, states that on 24.8.1992 he examined Girish Kumar and prepared MLC, Ex. PW-13/A. PW-19, Ram Kumar, is the recovery witness of the danda and the knife. PW-20 is the Investigating Officer who details the steps taken during investigation while PW-21, Surinder Singh, is the record clerk who identifies the signature of Dr. Nalini Sinha who prepared the MLC, Ex. PW-21/A, on the deceased, Kishan Chand.

15. Counsel for the appellant attacked the testimony of PW-4, Girish Kumar, on the ground that the witness is vacillating and, therefore, not trustworthy. He submitted that the recoveries are doubtful and the Doctor who examined PW-4 has not been produced which has gravely prejudiced the accused besides submitting that the FIR is a padding since the same was signed after four days after the statement recorded of the complainant.

16. With the assistance of counsel for both the parties, we have carefully examined the record of the case, and in particular examined the statement of PW-4. Indeed, while going through the statement of PW-4, it appears that in the examination-in-chief he does not support the version in the FIR on all fours but has gone on to describe the incident differently from what has been stated in Ex. PW-4/A except that he attributes the knife blow given to him as also the deceased to Kishen Kumar, accused. I his cross-examination, however, the entire case of the prosecution has been elicited. He states how the quarrel began between his father and the accused which thereafter developed into the incident where his Chacha, Kishan Chand, deceased, received injuries at the hands of Kishen Kumar who was armed with knife as also having received injury on his head from the dagger wielded at him by Kishen Kumar besides the injuries received by danda blows and the thapi. In his cross-examination he states:-

''It is correct that no incident had taken place when I was returning from my school to my house and whatever I had stated on 18-11-98 in that context is wrong. (Vol. The incident took place when I came out of my house at 7.15 p.m.). I had not stated before the police that I came out of my house. I was dragged in the gail by all accused. When I was given knife blows my father, my mother, my chachi Jaswanti and Madan and my brother Rajesh were coming towards me and were at a distance of about 35-40 paes and my chachi Jaswanti was ahead of all of them. There is a 'Chopal' (raised cemented platform) at a distance of about 20 paces from the place of occurrence. My house is at a distance of about 30-40 paces from that platform in a gali. It is correct that the place of occurrence is not visible from my house or the gali, but is visible only from that platform. My parents, aunti and cousin and brother Rajesh had not seen actual knife blow being given to me. It is correct that Kishan was given knife bow before, I was hit with knife. Accused Manjeet and Ravinder had not given me any beating and I have wrongly stated so in my statement dt. 13-11-98. I had seen knife in the hands of accused Kishan when I saw him for the first time after coming from gai. When I had reached 'Chopal' I saw all the accused. I had seen knife in the hands of accused Kishan from 'Chopal' itself. I had also seen 'thapi' from 'Chopal'. I was scared before I reached near accused as I had seen knife and thapi. I was dragged from 'Chopal' itself from house no.4315, 4316, 4317.''

He also states in his cross-examination:

''At 7.15 p.m. I was present in my house when my father came and told me that accused had misbehaved with him and so I came out of my house feeling bad about it. It is correct that I directly reached the place where some of the accused were playing cricket directly to protest against misbehavior with my father.''

He also states in his cross-examination:

''I was dragged up to near house of Pratap . It is correct that there is another gali which leads to house of Raja Ram before house of Pratap. There is a gali which leads to main market and another which leads to house of Raja Ram accused and they both starts before house of Raja Ram and Pratap connected with each other. I was dragged into the gali which leads to house of Raja Ram. I was dragged down the gali up to distance of about 15 feet from the corner of gali leading to house of Raja Ram. It is ncorrect that the place where occurrence took place was not visible from 'chopal' alleged.''

He further states:

''It is correct that when I protested against behavior of accused with my father then accused also got angry and started quarreling.''

17. From this witness, the defense has elicited the entire case of the prosecution which is admissible evidence and can be used to reach the truth. From an analysis of the statement of this witness it can safely be said that Girish Kumar was present at the time of the occurrence. He was an eye witness to the incident. This witness received injuries at the hands of Kishen Kumar as also thapi and danda blows from other accused. His statement gets corroborated by medical evidence which shows injuries in his head and forehead and also the injuries on the deceased. The narration of events by this witness gets corroborated, to some extent, by PW-8, Rajni Devi, and PW-9, Jaswanti, who saw the accused running away from the spot and reaches the spot soon after the accused had inflicted injuries and are instrumental in taking the injured and the deceased to the hospital.

18. Even if the recoveries are dis-believed for reasons stated by counsel for the appellant inasmuch as the site plan varies from the description given by the recovery witness, yet the prosecution case would not get affected. The ocular evidence of the eye witness and other corroborative material placed on record leaves no manner of doubt that the prosecution has been able to bring home their case. On a re-appraisal of the material on record with the assistance of learned counsel, we find that the reaoning of the trial court in arriving at its conclusion cannot be faulted with. In that case we find no reason to differ with the findings arrived at by the trial court and uphold the impugned judgment and order dated 31.8.1992. On the question of sentence, the sentence awarded by the trial court to accused, Kishen Kumar, under Section 302/307 IPC is confirmed while the sentence awarded in the case of Joginder Singh and Lalit Kumar under Section 323 IPC is modified to the period already undergone.

19. With this Criminal Appeal No. 778 of 2002 is dismissed. Criminal Appeal No. 775 of 2002 is disposed of. The bail bonds and the sureties furnished by Joginder Singh and Lalit Kumar shall stand discharged.