Delhi High Court
Vijender Kumar @ Vijay vs State Of Delhi on 9 April, 2009
Author: B.N.Chaturvedi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.A.No.351/2005
% Date of Decision : 9th of April, 2009
# VIJENDER KUMAR @ VIJAY ......Appellant
! Through: Mr. K.B.Andley, Sr.Adv.
with Mr. M.L. Yadav &
Mr. M. Shamik, Advs.
versus
$ STATE OF DELHI .....Respondent
^ Through: Ms. Richa Kapoor, APP
* CORAM:
HON'BLE MR.JUSTICE B.N. CHATURVEDI
HON'BLE MR.JUSTICE G.S. SISTANI
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes
: B.N.CHATURVEDI, J.
1. The appellant was tried for offences punishable
under Sections 302 & 201 IPC and convicted therefor
by the Court of learned Additional Sessions Judge,
Delhi vide judgment dated 19.4.2005 and sentenced
to imprisonment for life under Section 302 IPC and
rigorous imprisonment for one year under Section 201
IPC vide order dated 21.4.2005. The sentences so
awarded are to run concurrently.
2. Aggrieved by the said conviction and sentence,
the appellant has preferred the instant appeal.
3. Material facts of the prosecution case are thus:
Yagesh @ Bhima @ Chhotu was employed as a
helper in a bus owned by appellant's father. He was
being suspected of misappropriating part of fare
collected by him from passengers. On 9th of April,
2002, at Karampura Bus Terminal, Delhi the
appellant felt that there was some shortfall in
collection. He questioned the deceased to find out if
he had withheld some amount with him. The
deceased answered in the negative. The appellant
was, however, not convinced. He, therefore, subjected
the deceased to a personal search which resulted into
recovery of an amount of Rs.100/- from his person.
The appellant got furious and started beating the
deceased. The deceased protested whereupon the
appellant brought out a knife from the dickey of his
two-wheeler scooter parked nearby and stabbed him.
Unexpected course of event left the other members of
the bus crew shocked. They advised the appellant to
remove the deceased to a hospital. The appellant
thereupon, assisted by one Kanhiya, took the
deceased in an injured condition, on his two-wheeler
scooter, to a private clinic. The doctor concerned at
the clinic, looking at his condition, advised the
appellant to take the injured to some hospital. The
appellant, accordingly, took the injured/deceased to
ESI Hospital and got him admitted there. While getting
the injured/deceased admitted in the hospital, the
appellant informed the doctor concerned that the
injured/deceased was found by him lying unconscious
on the road side and had brought him to the hospital
from there. On duty constable at the ESI Hospital
informing the police station concerned about
admission of Yogesh in injured condition, a DD Entry
No.17-A dated 19.4.2002 was recorded at Police
Station Moti Nagar, New Delhi and a copy of such
entry was passed on to SI D.P.Kajala for necessary
action. SI D.P.Kajla, accordingly, proceeded to ESI
Hospital. He was accompanied by constable Raj
Kumar No.2052/W. On reaching the hospital, the
doctor on duty certified the injured/deceased unfit to
make a statement. SI D.P.Kajla keeping in view the
contents of MLC, which he had collected from the
hospital, made his endorsement on the copy of the
said DD report and sent the same to Police Station
Moti Nagar, New Delhi through constable Raj Kumar
No.2052/W for registration of a case under Section
307 IPC and an FIR was, accordingly, registered.
4. On the same day at about 10.20 p.m., based on
an information by duty constable Karamvir
No.1616/W at ESI Hospital that the injured had been
declared dead by the doctor concerned, another DD
Entry No.66-B dated 9.4.2002 was recorded at Police
Station Moti Nagar, Delhi. The FIR was thereupon
converted into the one under Section 302 IPC and
further investigation of the case was taken over by
Insp.B.S.Jhakar from SI D.P.Kajla.
5. In the course of investigation, Insp.B.S.Jhakar
was able to ascertain the identity of the deceased with
the help of a photograph of his dead body.
Insp.B.S.Jhakar made inquiries about the incident
from the driver and fellow crew members of the bus on
which the deceased was working. They gave an eye-
witness account of the incident inculpating the
appellant. The appellant was thereupon arrested. He
made a disclosure statement, pursuant to which a
knife wrapped in a piece of cloth was got recovered
from the dickey of his scooter parked at his house.
Apart from the knife so recovered and seized by the
police, the appellant also led to recovery of his shirt
from an almirah in his house. Some faint bloodstains
were found on the appellant's shirt so recovered as he
had allegedly washed the same before its recovery. On
the knife and cuttings of appellant's shirt being
referred to CFSL, the knife and the shirt cuttings were
found to be bearing bloodstains, positive for test and
on examination, blood swab guage(knife) was opined
to be having human blood of `A' Group, which
happened to be the blood group of the deceased.
Though on shirt cuttings human blood was detected,
the test to ascertain its group was recorded as
inconclusive.
6. Alleged eye-witnesses, namely, Jaspal @ Pinki,
PW-1, Kanhaiya, PW-2, Ravinder Singh @ Motu, PW-3,
and Devinder, PW-4, trampled upon prosecution case
and did not support it. The learned Additional
Sessions Judge in a salvaging act, turned to
circumstantial evidence and in the ultimate analysis
adjudged the culpability of the appellant being proved
beyond doubt to record the impugned conviction and
sentence.
7. Challenge to the impugned conviction and
sentence emanates from non-supportive statements of
Jaspal @ Pinki, PW-1, Kanhaiya, PW-2, Ravinder
Singh @ Motu, PW-3, and Devinder, PW-4, who had,
according to the prosecution version, witnessed the
deceased being assaulted by the appellant and fatally
injured by a stab blow. Shri K.B.Andley, Senior
Advocate, appearing for the appellant, contended that
apart from the fact that none of the alleged eye-
witnesses support the case of the prosecution
regarding appellant's involvement in the commission
of the offence, there is no evidence even to establish
that the deceased was in the employment of
appellant's father on the date of incident. He referred
to the depositions of deceased's father Chander Pal,
PW-8, and brothers, Ram Parkash, PW-9 and Manoj
Kumar, PW-10, who stated that they were not aware of
the employer with whom the deceased had been
serving. It was contended that contrary to the claim of
the prosecution that the dead body of the deceased
was got identified at the mortuary of DDU Hospital by
Manoj Kumar, PW-10, the affirmation by Manoj
Kumar, PW-10, that he saw the dead body of his
deceased brother only when the same was brought to
the house from the hospital, renders the identification
of the dead body doubtful. Shri Andley further argued
that Dr.Narender Kumar, PW-6, did not, in the course
of his statement before the Court, identify the
appellant being the one who had, as per prosecution
version, taken the deceased in injured condition to his
clinic first before removing him to ESI Hospital and
getting him admitted there on being so advised by the
said witness. Sustainability of impugned conviction
and sentence was questioned by Shri Andley on the
ground that there being no direct evidence connecting
the appellant with commission of the offence, the
circumstantial evidence, as noticed by the trial Judge,
was not sufficient to hold the appellant guilty of the
offences he was charged with and tried for. Alleged
recovery of bloodstained knife and shirt of the
appellant bearing bloodstains, pursuant to his
disclosure, argued Shri Andley, could not suffice to
adjudge culpability of the appellant in the commission
of the crimes particularly when the knife allegedly
recovered at the instance of the appellant was not
shown to the doctor concerned who conducted the
post-mortem examination on the dead body of the
deceased to elicit his opinion if the stab injury in
question that resulted into death of Yogesh, could
have been used as the weapon of the offence and also
as the credibility of claim in regard to recovery of
bloodstained knife and shirt is rendered questionable
since the same was effected without associating any
person from the public in spite of availability of a
number of persons.
8. Ms.Richa Kapoor, Additional PP, representing
the State, on the other hand, countered the arguments
raised on behalf of the appellant by contending that
even though the prosecution suffered on account of
non-supportive stance of the eye-witnesses to the
occurrence, the circumstantial evidence available on
record that were taken into account by the learned
trial court to convict and sentence the appellant for
the offences he was charged with, clearly establish
beyond doubt the culpability of the appellant. She
contended that it was the appellant himself who
removed the deceased in injured condition from the
scene of crime and eventually got him admitted in ESI
Hospital. The same is a clear indicator of his
committing the crime and then trying to escape from
legal consequences by making a false disclosure to the
doctor concerned at ESI Hospital that the deceased
was brought by him from a place on road side where
he found him lying unconscious in an injured
condition. Ms.Richa Kapoor pointed out that the
appellant even accompanied the concerned police
officer after registration of an FIR under Section 307
IPC to a particular place from where he claimed to
have had removed the deceased in injured condition to
the hospital and a site plan of that place was prepared
accordingly at his pointing out. It was further
contended that as far as identification of dead body of
Yogesh is concerned, the same was, in any case,
identified by Chander Pal, PW-8, father of the
deceased, at the mortuary of the hospital before the
same was handed over to him. Referring to a decision
of the Supreme Court in "Gura Singh Vs. State of
Rajasthan", 2001 CRI.L.J.487, Ms.Kapoor contended
that as a matter of legal proposition even though the
eye-witnesses of the incident did not support the
prosecution case, their entire testimony is not
rendered unworthy of consideration and part thereof
could still be taken into consideration for
corroboration wherever necessary. On witnesses from
public being not joined to witness the recovery of
incriminating knife and shirt at the instance of the
appellant, the learned Additional PP, referring to the
statements of SI D.P.Kajala, PW-18, Insp.B.S.Jhakar,
PW-20, pointed out that the investigating officer did
make efforts to secure presence of some of the
witnesses from public before effecting the said
recoveries, though without success due to reluctance
on their part to come forward.
9. We have heard the arguments from either side.
Apart from being taken though the relevant parts of
the evidence on record during the course of
arguments, we have otherwise perused the impugned
judgment/order of conviction and sentence, as also
the entire evidence on record.
10. The statements of all the eye-witnesses that
were recorded during the course of trial are wholly
inconsequential in view of each one of them having
expressed complete ignorance in regard to the incident
taking place at Karampura Bus Terminal. Absence of
effective cross-examination of such witnesses leaves
the prosecution high and dry as no part of their
testimony is capable of being taken into consideration
to supplement the circumstantial evidence leading to
the finding of the appellant's involvement in the
commission of the crimes.
11. From the impugned judgment one gathers that
the learned trial court held the appellant guilty of the
offences on the basis of following circumstances:
i) That the appellant had taken the deceased with
stab wound on his person and got him admitted
in the hospital by wrongly disclosing to the doctor
concerned that the deceased was brought by him
from a place on the road side where he was found
lying unconscious in an injured condition, which
was, on investigation, found to be incorrect.
ii) That the bloodstained knife, used as weapon of
offence, was recovered at the instance of the
appellant pursuant to a disclosure by him in that
regard.
iii)That the shirt of the appellant bearing bloodstains
was recovered from the house of the appellant at
his instance.
12. Alleged admission of the deceased in ESI
hospital in an injured condition is of vital import. The
claim of the appellant playing the role of a good
Samaritan by picking up the deceased in injured
condition from roadside lacks any support from the
material on record. Though the appellant has denied
having taken the deceased in injured condition to ESI
Hospital to get him admitted there, the statement of
Dr.R.K.Sharma, PW-5, coupled with the testimony of
Constable Raj Kumar, PW-12 and SI D.P.Kajala, PW-
18, clearly establish the identity of the appellant as
being the one who got the deceased admitted in the
hospital in an injured condition. The evidence
produced by the appellant in his defence to the effect
that he was lying admitted at Primary Health Centre,
Mehrauli, New Delhi as indoor patient from 9th April,
2002 to 10th April, 2002 and that he was discharged
from there at 6.00 p.m. on 10th of April, 2002 was not
accepted, and rightly so, by the learned trial Judge for
the reasons recorded in the impugned judgment. The
only evidence produced by the appellant in support of
plea of alibi is an extract of patient register Ex.DW-
1/C, a discharge slip Ex.DW-1/A and a certificate
issued by the doctor concerned, namely, Dr.Gopal
Bhagat, DW-1. No indoor patient slip which could
have proved that the appellant remained actually
admitted there as an indoor patient from 9th of April,
2002 to 10th of April, 2002 has been placed on record.
The admission card on the basis of which the
appellant was admitted as indoor patient is also not
available on record. The entries in the patients'
register, extract whereof has been proved on record,
would appear to have been made on the basis of such
admission card only. From the extract of patients
register Ex.DW-1/C, it is gathered that only two
patients are shown admitted in the hospital as indoor
patients on 9th of April, 2002, the appellant being one
of them. The name of the appellant at S.No.13 appears
at the end of the page and before him only one patient
was admitted as indoor patient. Contrary to discharge
slip Ex.DW-1/A where the appellant is shown to have
been admitted as patient of gastro entritis, there is no
mention of the ailment he was suffering from against
the relevant entry in the patients' register vide Ex.DW-
1/C. None of the entries, including the one relating to
the appellant appear to have been signed by Dr.Gopal
Bhagat, DW-1. In the circumstances, the possibility of
the appellant getting the entry in question in his name
manipulated in the register at a subsequent point of
time, in connivance with the official concerned
maintaining the patients' register cannot be ruled out.
The certificate Ex.DW-1/B was got issued only on 11 th
of September, 2002, much after the claimed date of
discharge of the appellant. It is notable that the
appellant is shown as resident of TS-782, Baljeet
Nagar, Patel Nagar, Delhi, which is far away from
Primary Health Centre, Mehrauli, New Delhi. In his
examination under Section 313 Cr.P.C., in order to
explain his admission in a hospital at such a far off
place, the appellant stated that on 9th of April, 2002,
he had gone to see Qutub Minar where he fell ill all of
a sudden and was got admitted at the Primary Health
Centre, Mehrauli, New Delhi by 2/3 persons belonging
to the MCD. Taking into account the plausibility of
the defence version and evidence produced in support
thereof, the learned trial court committed no error in
rejecting the plea of alibi.
13. The MLC vide Ex.PW-5/A clearly mentions the
name of the appellant, his parentage as well as
residential address being the one who got the
deceased admitted in the hospital with stab wound on
his person. At the time of admission, he had disclosed
to Dr.R.K.Sharma, PW-5, that he had brought the
injured(deceased) from the Nazafgarh Road near Moti
Nagar Police Station where he was lying unconscious.
Though the appellant had, according to SI D.P.Kajala,
pointed out the place on Nazafgarh Road from where
he claimed to have had picked up the deceased in
injured condition to take him to ESI Hospital and a
site plan vide Ex.PW-18/C was prepared at the
instance of the appellant, in the course of
investigation, no evidence could be found to support
the correctness of the information furnished by the
appellant as noted by Dr.R.K.Sharma, PW-5, in the
MLC, Ex.PW-5/A. On the contrary, the investigation
into the matter led to a different place, as indicated in
the site plan, Ex.PW-20/A and PW-15/A, being
identified as the actual place of occurrence. To begin
with, the police officers concerned were unable to fix
the identity of the deceased and, therefore, the
investigation could make little headway. It was only
on 11th of April, 2002 that the investigating officer
Insp.B.S.Jhakar, PW-20, could succeed in getting the
dead body identified with the help of photograph of the
dead body. According to SI D.P.Kajala, PW-18, and
Const. Raj Kumar, PW-12, they were, with a view to fix
the identity of the deceased, showing the photograph
of the dead body to various persons at Karampura
Bus Terminal where they per chance came across with
Manoj Kumar, PW-10, brother of the deceased, who
identified the dead body to be of his brother Yogesh @
Bhim @ Chhotu. No doubt Manoj Kumar, PW-10 did
not support that he ever came across with police
officials at Karampura Bus Terminal or that he, on
seeing the photograph of the dead body, had
identified the same to be of his brother Yogesh or that
he accompanied the police officials to identify the
dead body of his brother Yogesh at DDU Hospital, the
testimony of SI D.P.Kajala, PW-18 and Constable Raj
Kumar, PW-12 clearly establish that Manoj Kumar,
PW-10 helped the police in fixing the identity of the
deceased. Manoj Kumar, PW-10, who otherwise
deposed contrary to the prosecution case, affirmed
that he came to know about the death of his brother
Yogesh in the hospital from his brother Ram Parkash,
PW-9. Chander Pal, PW-8, father of Manoj Kumar,
PW-10, however, who also like his son Manoj Kumar,
PW-10, turned hostile, stated that he came to know
about the death of his son Yogesh in an accident from
some person on 11th April, 2002 and identified the
dead body of his son at DDU Hospital. If Ram
Parkash, PW-9, another son of Chander Pal, PW-8,
was in the know of death of Yogesh in the hospital as
testified by Manoj Kumar, PW-10, there was no
question of someone else other than Ram Parkash,
PW-9, informing Chander Pal, PW-8, about the death
of his son Yogesh in an accident. Obviously, the
father(Chander Pal, PW-8) and his two sons, namely,
Ram Parkash, PW-9, and Manoj Kumar, PW-10,
deliberately omitted to tell the truth for reasons best
known to them and even went to the extent of
expressing complete ignorance about the place of
employment and the name of the employer of the
deceased, Yogesh. The fact that the police was able to
achieve a breakthrough in fixing the identity of the
deceased with the help of a photograph of the dead
body of Yogesh at Karampura Bus Terminal, the
presence of Manoj Kumar, PW-10, at that bus
terminal where he appeared to have had gone to find
the whereabouts of his deceased brother for his not
having returned to his house for the last two days,
provides a clear indication that he expected to gather
some information relating to his brother, Yogesh, from
persons at that place. The appellant in his statement
under Section 313 Cr.P.C. admitted that bus No.DL 1
PD 1490 plying on route No.234 was owned by his
mother. According to Insp.B.S.Jhakar, PW-20, he
prepared the site plan Ex.PW-20/A at the instance of
the witnesses of occurrence. Of course, the eye-
witnesses did not corroborate the statement of
Insp.B.S.Jhakar, PW-20, in this regard and as a
matter of fact, while deposing before the court they
expressed complete ignorance about the whole
incident, there is no reason to disbelieve
Insp.B.S.Jhakar, PW-20 in this respect. It is, thus,
evident that the place of incident was Karampura Bus
Terminal only. In spite of the fact that the father and
two brothers of the deceased, as also the eye-
witnesses of the incident, omitted to state that the
deceased was working in the bus owned by the mother
of the appellant plying on route No.234 from
Karampura Bus Terminal, the presence of the
deceased at Karampura Bus Terminal where the
incident of stabbing took place is a clear indicator of
his association with that place in someway or the
other. Taking this circumstance together with
admission of the deceased in injured condition at ESI
Hospital by the appellant, in turn, unmistakably lead
to find that the deceased was one who was very much
known to the appellant on the date of incident. The
recovery of bloodstained knife at the instance of the
appellant from the dickey of his scooter parked at his
house pursuant to a disclosure, Ex.PW-12/F by him,
is an additional circumstance which clearly connects
him with the commission of murder of Yogesh. The
CFSL report, Ex.PX, proves that the knife recovered at
the instance of the appellant bore bloodstains
matching the blood group `A' of the deceased. The
recovery of knife was questioned by the learned senior
counsel for the appellant on the ground that no
person from public was associated in spite of their
availability. Insp.B.S.Jhakar, PW-20 and SI
D.P.Kajala, PW-18, testified that in spite of being
requested, nobody from public came forward to be a
witness to recovery of bloodstained knife from the
dickey of appellant's scooter. Of course, the
statements of other two police witnesses of recovery
contradict the factum of any effort to associate
witnesses from public being made, the same cannot be
taken to account for statements of the said two police
officers being discarded.
14. Another argument raised on behalf of the
appellant was that the knife in question was not
shown to the doctor, namely L.K.Barua, PW-7, at the
time of post-mortem examination on the dead body of
Yogesh to elicit his opinion if the same could have
been used to cause the stab injury on the person of
Yogesh that eventually resulted into his death. The
omission on the part of investigating officer to seek the
opinion of the doctor concerned at the time of post-
mortem examination was no doubt there but in view of
the fact that Dr.L.K.Barua, PW-7, had the occasion of
seeing the same in the course of his statement before
the court and opined that the stab injuries on the
person of Yogesh could have been caused by a knife
like Ex.P-1, the lapse of not showing the knife to
Dr.Barua at the time of post-mortem examination
cannot be held fatal to the prosecution case.
15. In view of circumstances emanating from the
evidence on record, we find no reason to hold a view
different from the one recorded by the learned trial
court to convict the appellant for the commission of
murder of Yogesh as also for trying to screen himself
from legal punishment by giving false information to
Dr.R.K.Sharma, PW-5 and the police. Accordingly, we
uphold the impugned judgment of conviction and
order of sentence and dismiss the appeal.
(B.N.CHATURVEDI)
JUDGE
(G.S. SISTANI)
April 09 , 2009 JUDGE
RS/
