Delhi High Court

Santosh @ Sanju vs State on 9 April, 2009

Author: Pradeep Nandrajog

*                HIGH COURT OF DELHI AT NEW DELHI

+                             Crl. Appeal No. 437/2004


%                              Date of Order : April 09, 2009

SANTOSH @ SANJU                                     ..... Appellant
             Through :               Mr. Rajesh Mahajan, Advocate

                                   VERSUS

STATE                                             .....Respondent
                         Through : Mr. Pawan Sharma, Advocate

CORAM :-
 HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
 HON'BLE MS. JUSTICE ARUNA SURESH


        (1) Whether reporters of local paper may be

             allowed to see the judgment?

        (2) To be referred to the reporter or not?        Yes

        (3) Whether the judgment should be reported

              in the Digest ?                             Yes

PRADEEP NANDRAJOG, J.(Oral)

1.               Vide     impugned     judgment    and    order     dated

25.2.2004, the appellant has been convicted for the offence of

having murdered Kelment Nandan @ Raju.

2.               In a nut shell, the reasons given by the learned Trial

Judge are:-

A.               Notwithstanding PW-1 and PW-4, cited by the

prosecution as eye witnesses, turning hostile, their testimony

that the appellant and the deceased were seen quarrelling

     Crl.A.No.437/2004                                            Page 1 of 8
 coupled with the fact that PW-1 admitted his signatures on his

statement Ex.PW-1/1 and also admitted his signatures on the

seizure memo Ex.PW-1/2 and the personal search memo of the

deceased Ex.PW-1/3 as also admitted his signatures on the

disclosure statement Ex.PW-1/4 of the accused and his

signatures on the seizure memos Ex.PW-1/5 and Ex.PW-1/6

established that the appellant was the assailant of the

deceased.

B.               That a knife i.e. the weapon of offence, stained with

blood was recovered pursuant to the disclosure statement of

the appellant and on his taking the police to the place where

the knife was recovered, being concealed in the roof of the

house of the appellant; upon which knife vide FSL Report

Ex.PX1 human blood was detected.

C.               The clothes which the appellant was wearing at the

time of the commission of the crime were found stained with

blood as per FSL Report and matched the blood group of the

deceased.

3.               Circumstance B and C noted hereinabove have

been used by the learned Trial Judge to reinforce the finding of

guilt.

4.               It is not in dispute that at 3:28 AM on 11.10.2002

i.e. in the intervening night of 10th and 11th October 2002


     Crl.A.No.437/2004                                        Page 2 of 8
 information was received at the local police station about a

dead body lying near Durga Puja Bhoomiheen Camp near DDA

Flats in Kalka Ji which was noted vide DD No.18A Ex.P-8/1

pursuant whereto SI Dharampal Singh PW-10 accompanied by

HC Raghuvinder Singh PW-8 left for the spot and found the

dead body of a male with fresh stab wounds at the spot. They

met Uttam Burman PW-1 at the spot who resides in jhuggi

No.224, Bhoomiheen Camp. He told SI Dharampal Singh that

he i.e. Uttam Burman, the deceased, the appellant, Nepal Dass

PW-4 and another person were drinking liquor. While drinking

the appellant abused the deceased who pushed the appellant,

as a result whereof the appellant fell down and after getting up

picked up a knife and stabbed the deceased and ran away.

That being petrified all others left the place but on seeing the

police reaching the spot he picked up the courage to come

back.

5.               On the basis of the statement Ex.PW-1/1, the FIR in

question i.e. Ex.PW-7/1 was registered.

6.               It is apparent that if the complainant i.e. Uttam

Burman and Nepal Dass who were examined as PW-1 and PW-

4 respectively, stood their ground, there would be hardly

anything for the appellant to urge with respect to the incident

in question, save and except to urge that it is a case of the


     Crl.A.No.437/2004                                      Page 3 of 8
 appellant acting upon a sudden quarrel and hence the offence

punishable is not as held by the learned Trial Judge but

culpable homicide not amounting to murder; an offence

punishable under Section 304 IPC.

7.               In his testimony PW-1 deposed as under:-

            "I am residing in Jhuggi no.244, Bhumiheen Camp
            Govind Puri for the last 14- 15 years. I know
            accused [email protected] present in court and also
            Nepal Das as we are residing in the same jhuggi
            camp. I however did not know Raju. On the night
            intervening 10-11.10.2002 I, Sanju @ Santosh and
            Nepal Das and one more person were taking liquor
            in DDA flats Kalka Ji, near Water Tank at about
            2:00 AM. The deceased was not amongst those
            who were taking liquor and I did not know him.
            There was a collision between the accused and the
            deceased.      There was exchange of abuses
            between the accused and the deceased. I became
            scared and ran away. I went inside a tent where
            Puja was being performed. Nepal had also run
            away from the spot where there was exchange of
            abuses between the accused and the deceased.
            Later on Nepal came to the tent where Puja was
            being performed and told me that dead body of
            the deceased was lying. Many of us reached the
            spot and found the dead body of the deceased
            lying there. The accused was not present there. I
            cannot say how the deceased expired. I have now
            come to know that the name of deceased was
            Raju. The name of the fourth person who was
            taking liquor with us was Bhagat."

8.               On being declared hostile and on being cross

examined by the learned APP, PW-1 admitted his signatures on

his statement Ex.PW-1/1 as also on various other memos

which were prepared by the police.

9.               Nepal PW-4 deposed as under:-

     Crl.A.No.437/2004                                      Page 4 of 8
         "I know accused Sanju @ Santosh present in the
        Court and also know PW-1 Uttam. In the night of
        11.10.2002, I was taking liquor with accused, PW-1
        Uttam and deceased Raju near tent where Durga
        Puja was being performed, in Kalka Ji. I left the
        spot, where we were taking liquor and by that time
        there was no quarrel. Uttam had also left the spot
        when I left.    The accused and the deceased
        remained there. There was no quarrel in my
        presence. When I was present in the tent I came
        to know that there was a quarrel taking place.
        When I came to the spot I found deceased Raju
        lying dead. The accused was however not present
        at that time. Police came to the spot. Police had
        recorded my statement. I had told the police that I
        had not seen as to who had killed the deceased."

10.          Assuming that PW-1 did not actually see the

appellant stab the deceased, but his testimony shows that he

was present when the deceased, the appellant, Nepal Dass

and one more person were consuming liquor and there was a

collision between the accused and the deceased followed by

exchange of abuses between the two.        Assuming PW-1, on

becoming scared ran away, but the fact that immediately

thereafter the deceased was found injured, leads to the only

inference that the appellant had injured the deceased.

11.          In our decision dated 18.3.2009 in Crl.A.No.246/01

Vijender @ Bijoo Vs. The State, in paras 25 to 29, we had

discussed as under:-


      "25.       That apart, it is settled law that facts
      which are not themselves in issue may affect the
      probability of the existence of facts in issue, and
      thus can be used as the foundation of inferences

 Crl.A.No.437/2004                                       Page 5 of 8
     respecting the facts in issue; such facts are relevant
    facts. The only requirement is that such facts have
    to be relevant to the facts under enquiry and have to
    be sufficiently connecting with the later to afford
    good ground for an inference as to the existence or
    non-existence of the facts under enquiry. Facts

which are so closely or inseparably connected with the facts in issue are often said to be forming part of the same transaction. A transaction may constitute a single incident occupying a few moments and encompassing a variety of acts occurring at the same or different places. All these acts are constituents of the same incident and are relevant because they accompany and tend to explain the fact in issue. They form a chain as it were encircling the fact in issue.

26. Section 6 of the Evidence Act makes relevant, facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, whether they occur at the same time and place or at different times and places. It is important to bear in mind that what is admissible under Section 6 are facts which are connected with the facts in issue as part of the transaction under investigation. In order that different acts constitute the same transaction they must be connected by proximity of time, unity or proximity of place, continuity of action and community of purpose or design.

27. Where a fact has occurred with a series of acts preceding or accompanying it, it can safely be presumed that the fact was possible as a direct cause of the preceding or accompanying acts unless there exists a fact which breaks the chain upon which the inference depends.

28. The evidence of last seen is based on the reasoning above. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. To put it differently, as held in the

decision reported as AIR 2003 SC 3131 Mohibur Rahman Vs. State of Assam there may be cases, where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the deceased suffered death or should own the responsibility for homicide.

29. Thus, the fact that the appellants chased Anita and appellant Vijender was armed with a thapki and appellant Om Prakash was armed with a button operated knife, and within less than two minutes of Anita and the appellants leaving the room, Anita is found stabbed with a knife and hit by a blunt object, are facts by themselves sufficient to draw an adverse inference against the appellants unless they explain as to how Anita was stabbed and hit with a blunt object."

12. We thus hold that even on the truncated testimony

of PW-1 the learned Trial Judge has rightly concluded that the

same establishes that the appellant was the assailant.

13. But, we find that the learned Trial Judge has lost

sight of Exception 4 to Section 300 IPC. Indeed, if the offence

is committed without pre-meditation in a sudden fight and in

the heat of passion upon a sudden quarrel, the offence has to

be culpable homicide not amounting to murder.

14. From the testimony of PW-1 it is apparent that the

deceased and the appellant as also PW-1 and PW-4 and one

more person were sitting as good friends drinking liquor and

for no apparent cause, a sudden quarrel ensued which resulted