Delhi High Court
Bijender Singh vs State on 10 December, 2008
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M. B. No. 980/2008 in Crl.Appeal No.218/2006
% Date of Decision: 10.12.2008
Bijender Singh .... Appellant
Through Pt.R.K.Naseem, Advocate.
Versus
State .... Respondent
Through Mr.M.N.Dudeja, APP for the State.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
*
The applicant Bijender Singh seeks suspension of his sentence
during the pendency of appeal and his release on bail by this
application.
It has been contended on behalf of applicant that the police are
guilty of prompting the witnesses who have not chosen to make
statements as allegedly manufactured by the police. FIR is stated to be
ante-timed and the testimony of PW.7 is not reliable as his testimony
has variations in his statement and in the cross examination.
According to the applicant, the purpose of cross examination is to
smash the version in the examination in chief and considering the cross
examination of the witnesses, no reliance could be given on the
testimony of PW.7 and thus, the judgment convicting the appellant and
sentencing him suffers from material illegality.
The learned counsel Pandit R. K. Naseem, has also contended
that on PW.7 becoming hostile, he has not been cross examined by the
prosecution with the aid of his statement given under Section 161 of
Criminal Procedure Code, 1973. It has also been contended that the
testimony of PW.8 Ms. Seema Chandra could also not be considered as
the same is only hear-say and also because she has improved in her
testimony before the Court over the police statement given by her. It is
further contended that the alleged weapon of offence is a kitchen knife
which was used in the heat of passion without choosing any specific
part of the body and the knife injury was on the chest by accident.
PW.7 Mr. Anand Narain Srivastav had testified in his statement
that on 12th July, 2003 there was altercation between the accused and
the deceased and they were separated from the scuffle which they had
with each other. However, later on accused gave the knife blow under
the left armpit of the deceased and he thereafter intimated PW.8 Ms.
Seema Chandra who was the Food Production Incharge.
The testimony of PW.7 was recorded on 1st April, 2004, however
he was not cross examined by the applicant despite the opportunity
given to him. Later on an application was filed on behalf of the
applicant for recalling the said witness for cross examination, which
was allowed and he was cross examined on 25th August, 2004.
However, later on he turned hostile and denied whatsoever was stated
by him in his examination-in-chief on 1st April, 2004. Though, PW.7
had turned hostile later on, however, considering the facts and
circumstances the testimony of PW.7 on oath in examination-in-chief
cannot be discarded altogether. The fact regarding scuffle between he
appellant and the deceased and separation of the applicant and the
deceased and later on deceased being fatally stabbed by the applicant
were also communicated to Ms.Seema Chanda who has also deposed
about the same. The testimony of PW.8 corroborates the incident of
knifing of the deceased. The injury caused to the deceased was
sufficient to cause his death which has also been testified by PW.3 Dr.
Alexander F. Khakha. Prima facie there is sufficient evidence to convict
the applicant. The applicant has also not given any explanations about
his versions in his statement under Section 313 of the Criminal
Procedure Code. Considering the period of incarceration already
undergone by the applicant, the appeal is likely to be listed for hearing
within measurable distance of time as appeals are listed in the category
of "Regular Matters" according to the period of incarcerations already
undergone by the convicts.
In the totality of facts and circumstances and for the forgoing
reasons, we are not inclined to suspend the sentence of the applicant/
appellant and to release him on bail. The application of the appellant/
applicant is, therefore, dismissed.
Criminal Appeal No. 218/2006
Trial Court record be requisitioned. Compilation of documents
and evidence be got prepared within eight weeks. On compilation being
ready the copies of the same be given to the learned counsel for the
parties.
List in the category of "Regular Matters" according to the period of
incarceration undergone by the appellant.
ANIL KUMAR, J.
December 10, 2008 V.K. SHALI, J.
mk
