Anil Kumar vs State
2009 Latest Caselaw 1465 Del

*            HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment reserved on : 15.04.2009
                              Judgment delivered on: 18.04.2009


+                           Crl. Appeal No.482/2008


      ANIL KUMAR                         ..... Appellant
               Through : Ms.Anu Narula, 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.

1. As per the case of the prosecution, two boys of

Sarvodaya Bal Vidyalaya, Madipur, Delhi; namely Anil

(accused) and Ujala (deceased), students in the afternoon shift

of the school, had a fight during the recess hours at around

4:15 PM - 4:30 PM on 27.5.2005. Having a verbal duel, both

reached House No.446 Pocket-3 Paschim Puri New Delhi

situated a little away from the school. A carpenter was

working in front of the aforesaid house. All of a sudden, Anil

picked up a „rapi‟ (chisel) and caused multiple stab injuries on

Ujala and fled, but was chased by some students of the school.

Since the students were shouting „pakdo-pakdo‟; Ranjan PW-3

and Rajesh PW-4 who were also students of the same school

got attracted by the noise and saw the accused running while

being chased by other students. They joined the chase and

succeeded in apprehending Anil, who was dutifully produced

before the Vice Principal of the school, before whom, Anil

made a confession that he had inflicted the injuries on the

deceased.

2. The police was informed of the incident at 4:10 PM,

which information was noted at the police station vide DD

No.32 Ex.PW-19/A by HC Sudesh PW-19. A copy of the DD

entry was handed over to Inspector Jarnail Singh PW-21, who

reached the spot accompanied by Const. Rajesh PW-17. Since

a PCR Van had arrived at the spot and had removed the

injured to Maharaja Agrasen Hospital, Inspector Jarnail Singh

went to the hospital and collected the MLC Ex.PW-16/A of

Ujala, which recorded that the injured was brought dead to the

hospital. Inspector Jarnail Singh drew out a tehrir by making an

endorsement Ex.PW-21/A on the aforesaid DD No.32 and

handed it over to Const. Rajesh PW-17 for an FIR to be

registered.

3. After the registration of the FIR, the investigation of

the case was handed over to Inspector Lakhinder Singh PW-18,

who directly reached the hospital from the police station,

where he was handed over a pullanda containing the clothes

of the deceased along with one black purse containing Rs 10/-

and one I-card of the deceased which he seized vide seizure

memo Ex.PW-17/A. The body was sent to Sanjay Gandhi

Memorial Hospital Mangolpuri for post-mortem.

4. Thereafter, Inspector Lakhinder Singh PW-18

reached the place of the incident in front of House No.446

Pocket-3, Paschim Puri and prepared a rough site plan Ex.PW-

18/B. He summoned the crime team to the place of incident

and HC Ram Niwas PW-10, of the crime team, took the

photographs Ex.PW-10/1 to Ex.PW-10/10 of the place of

incident.

5. Inspector Lakhinder Singh learnt that the accused

had been taken to Sarvodaya Bal Vidyalaya, Madipur. He went

to the school and found the accused sitting in front of the

principal‟s office wearing blood stained shoes. The accused

was arrested. The pair of shoes Ex.P1 were seized vide seizure

memo Ex.PW-5/C. He interrogated the accused and recorded

his disclosure statement Ex.PW-18/D as per which, inter alia,

the accused informed that he can lead the police to the place

where he had thrown the rapi. Thereafter the accused led

Inspector Lakhinder Singh to House No.447 Pocket-3, Paschim

Puri and pointed out the place where he threw the rapi Ex.P-2

which was recovered from the said spot and seized vide

seizure memo Ex.PW-18/F. A sketch Ex.PW-18/E of the rapi

was prepared by Inspector Lakhinder Singh.

6. The statements of Ranjan PW-3 and Rajesh PW-4 as

also of Yuvraj Lal PW-5, the Vice Principal of the school were

recorded under Section 161 Cr.P.C. Vijay Pal Singh PW-1, the

carpenter whose rapi was used as the weapon also made a

statement under Section 161 Cr.P.C. As per the statements of

PW-3, PW-4 and PW-5, the appellant was the assailant of the

deceased. As per the statement of the Vice Principal of the

school, the appellant had made an extra-judicial confession to

him.

7. The post-mortem of the deceased was conducted

on 28.7.2005 by Dr.Samir Pandit PW-11 at Sanjay Gandhi

Memorial Hospital. The post-mortem report Ex.PW-11/A

records the following injuries on the person of the deceased:-

1. Incised cut mark left side of the upper chest and anteriorly 4cm below clavical and 5cm medial to anterior axillary fold, transversely placed 2.3cm X 5mm subcutaneous tissues deep.

2. Incised cut mark left side of chest vertically placed 6cm from mid line and 4 cm below and medial left nipple, 2.3cm X 0.9 cm size with both angles sharp is cavity deep.

3. Incised cut mark left iliac fossa of abdomen 9cm from midline and 1cm above anterior, superior iliac spine obliquely placed 2.5cm X 1.5cm size cavity deep with intestinal loops prolapsed out and sharp angles.

4. Incised cut mark right side of back of chest 9.5cm from mid line obliquely placed over lower angle of scapula 2.3cm X 0.9cm size is bone deep with sharp angles.

5. Incised cut mark right side of lumbar spine 6cm from mid line obliquely placed 1.8cm X 0.5cm is muscle deep.

6. Incised cut mark right side back of trunk over iliac crest 10cm from mid line, 2.3cm X 6mm skin deep with bewelling of lower edge.

7. Incised cut mark left side of saccral region transversely placed 2cm from mid line, 2.5cm X 1cm going into lumbo saccral joints space.

8. Incised cut mark left buttock in upper medial quadrant 6cm below injury No.7, 2.3 X 0.9cm size muscle deep.

Chest: on exposing injury No.2 there is cut on the 6th rib costochondral junction further going into chest cavity which contains about 2 ltrs. of liquid and clotted blood, further passing through pericardium to right side of heart over right ventricular wall and passing into the cavity of right ventricle."

8. The cause of death was recorded to be

haemmorhagic shock as a result of injury to heart. Injury No.2

and 3 along with their underlying injuries were stated to be

sufficient to cause the death in the ordinary course of nature

individually as well as collectively. After the post mortem, the

blood sample of the deceased taken on a piece of gauze was

handed over to Inspector Jarnail Singh.

9. The clothes of the deceased, the shoes of the

accused and the rapi were sent to FSL Rohini through Const.

Rajesh PW-19. As per the FSL report Ex.PX-1 human blood was

detected on the shoes Ex.P-1 of the accused as well as on the

weapon of offence Rapi Ex.P-2 but the blood group thereon

could not be detected.

10. A charge sheet was filed against the accused for

having murdered Ujala.

11. At the trial, Vijay Pal Sharma PW-1, deposed that on

the date of incident i.e 27.5.2005 he was working as a

carpenter in House No.446, Pocket-3, Paschim Puri. At about

4:15 PM while he was busy with his work, two boys who were

quarreling came there. Several school children were also

present. One out of the two boys who were quarreling, lifted

his tool and attacked the other boy with it. However, he could

not identify who that boy was.

12. In his cross-examination, he stated that the

accused was apprehended by the police the next day when he

also got the weapon of offence recovered.

13. Rajan PW-3, deposed that he knew the accused as

well as the deceased, since they were students of his school.

On 27.7.2005 when he and Rajesh were taking lunch in a shop

outside the school, the accused came running and the

students had raised an alarm „pakdo pakdo‟. He and Rajesh

apprehended the accused and handed him over to the

principal. Relevant would it be to note that on being declared

hostile and cross examined by the learned APP, PW-3 denied

having told the police what was recorded at point A to A, point

B to B, point C to C and point D to D in the statement Ex.PW-

3/A i.e. the statement recorded by the police under Section

161 Cr.P.C. It be noted that in said statements, it finds

mention that PW-3 had seen the accused assault the

deceased.

14. On being cross examined by the counsel for the

accused, PW-3 denied that he and Rajesh did not apprehend

the accused. He also denied the suggestion that the accused

was not handed over to the principal of the school.

15. Rajesh PW-4, deposed that he knew the accused

and the deceased, who were students of the same school. On

27.7.2005 he and Rajan were taking lunch outside the school,

when he saw the accused running and being chased by

students. That he and Rajan apprehended the accused and

handed him over to the principal. Relevant would it be to note

that even Rajesh was declared hostile and was confronted with

statements recorded by the police as made by him under

Section 161 Cr.P.C. to the effect that he had witnessed the

accused attack the deceased, which statements were denied

by Rajesh as having been made by him to the police. On being

cross examined by the counsel for the accused, Rajesh denied

that he and Rajan did not apprehend the accused. He denied

the suggestion put to him that the accused was not handed

over to the principal of the school.

16. Yuvraj Lal PW-5, the Vice-Principal of Sarvodaya Bal

Vidyalaya Madipur, deposed that on 27.7.2005 when he was in

the school, at around 4:00 PM, Rajan and Rajesh, students of

his school, came to his office along with the accused. They

told him that the accused had stabbed Ujala, a student of the

school. That he asked the accused regarding the incident, and

the accused confessed having stabbed Ujala. He saw blood

stains on the shoes of the accused and informed the police

post Madipur. After some time, the police reached and he

handed over the accused to the police, who was arrested vide

arrest memo Ex.PW-5/B, which was witnessed by him. The

accused was interrogated by the police but he could not hear

the same as he was sitting at a distance. The shoes Ex.P-1

were seized by the police in his presence vide seizure memo

Ex.PW-5/C. On being cross examined, PW-5 admitted that the

accused was perplexed at the time he i.e. the witness

questioned the accused and that he i.e. the accused became

more perplexed when he told the accused that he would hand

him over to the police.

17. Inspector Lakhinder Singh PW-18, deposed facts

pertaining to the police receiving information about the crime

and he along with Const.Rajesh leaving for the place where the

crime was committed and therefrom to Maharaja Agrasen

Hospital where they collected the MLC and the clothes of the

deceased. He deposed of having apprehended the accused

who was in the custody of the Vice-Principal of the school and

having interrogated the accused. He deposed that the

disclosure statement of the accused Ex.PW-18/D was recorded

by him. He deposed that the site plan Ex.PW-18/B was drawn

by him. He deposed that he lifted blood stained earth, blood

sample and earth from the site and drew up the seizure memo

Ex.PW-18/C. He deposed that the accused led him to the place

of occurrence and pointed out the spot, behind a grill,

wherefrom the rapi Ex.P-2 was recovered and seized vide

seizure memo Ex.PW-18/F and that he prepared the sketch

Ex.PW-18/E of the rapi.

18. Dr.Sameer Pandit PW-11, deposed that on

28.7.2005 he had conducted the autopsy of Ujala, and had

noted his findings on the post-mortem report Ex.PW-11/A. On

being cross examined, he stated: 'only injuries No.2, 3 and 4

could be possible by a sharp double edged weapon'.

19. Vide impugned judgment and order dated

17.12.2007, the learned Trial Judge has held that the appellant

was guilty of murdering the deceased. Noting that no witness

of the prosecution has directly indicted the accused, learned

Trial Judge has held that the testimony of PW-1 establishes

that two boys had quarreled near the place PW-1 was carrying

on his work as a carpenter and one out of the two had picked

up his tool to attack the other. With reference to the

testimony of PW-3 and PW-4, the learned Trial Judge has held

that the same established that the accused was being chased

by some students of the school who were yelling that the

accused be apprehended and that the two apprehended the

accused; meaning thereby, the factum of the accused

attempting to flee from the spot and being chased by a crowd

of students required an inference to be drawn qua his guilt.

The fact that the shoes worn by the accused were found to be

stained with blood and the report of the serologist was that the

blood was of human origin and there being no explanation by

the accused as to how his shoes got stained with blood,

learned Trial Judge has found another link in the chain of

circumstances against the accused. It has also been held that

the rapi was recovered pursuant to the disclosure statement

made by the accused and was recovered from a place which

was pointed out by the accused. The fact that the rapi was

opined to be stained with human blood has also been held to

be another event linking the chain of circumstances against

the accused. Lastly, the learned Trial Judge has held that the

testimony of PW-5 establishes that the accused had made an

extra judicial confession.

20. At the hearing of the appeal, Ms.Anu Narula learned

counsel for the appellant, urged that the extra judicial

confession made by the appellant was under threat and hence

was inadmissible in evidence. Counsel urged that from the

testimony of PW-1 it was apparent that the appellant was

apprehended the next day and the rapi was produced by him

on the next day which belied the testimony of the other

witnesses that the appellant was arrested on the day of the

incident itself and the rapi was recovered on the same day.

Counsel urged that only injuries 2, 3 and 4 were opined to be

possible by a sharp double edged weapon (as per the

testimony of PW-11); hence, it was urged that obviously two

weapons of offence were used, meaning thereby, there were

two assailants. Lastly, counsel urged that it was not a case of

murder but of culpable homicide not amounting to murder.

21. Pertaining to the extra judicial confession made by

the accused to PW-5, the Vice-Principal of the school, we note

that on being cross examined, PW-5 responded:-

"It is correct that the accused was perplexed at that time at the time I interrogated him. He was perplexed at the time I told him that I would report the matter to the police."

22. Learned counsel for the State had urged that it is

apparent that the accused was questioned by the Vice-Principal

and when so questioned he made an extra judicial confession

and it was only thereafter the Vice-Principal threatened to hand

him over to the police. Thus, learned counsel for the State

urged that the extra judicial confession was without any threat

or fear.

23. Deposition by witnesses cannot be treated as

mathematical formula and broken into sub-components i.e. as

in Algebra, complex equations for resolution thereof, being

broken into linear equations. We agree with the submission

made by the learned counsel for the appellant that it appears

that the appellant was made to confess to the crime by the

Vice-Principal under threat of being handed over to the police.

The words "proceeding from a person in authority" in Section

24 of the Evidence Act are broad enough to include any person

having dominion over the accused. A Vice-Principal of a school

would be a person in authority vis-à-vis student. We thus

exclude the extra judicial confession made by the appellant.

But, the deposition of the Vice-Principal of the school that when

the appellant was brought before him, he was perplexed and

that he became more perplexed when he told him that the

police would be summoned is admissible in evidence pertaining

to the conduct of the accused; admissibility being by virtue of

Section 8 of the Evidence Act.

24. The plea of learned counsel that the testimony of

PW-1 establish that the appellant was apprehended the next

day, requires not much consideration by us, for the reason, it is

obviously a case of PW-1, a man of humble origin (a petty

carpenter by profession), forgetting the dates and events. We

say so for the reason, the Malkhana register, extracts whereof

were proved as Ex.PW-13/A, records vide serial No.3139, that

the blood stained pair of shoes; the rapi and the clothes of the

deceased as also his blood sample on a gauze were deposited

in the Malkhana on 27.7.2005 i.e. on the very day when the

crime took place.

25. It is thus apparent that the rapi was recovered on

27.7.2005; for the reason its entry in the malkhana register

could not have been made on 27.7.2005 unless the same had

been seized by the investigating officer and handed over to the

duty officer in charge of the malkhana for safe custody in the

malkhana. It is obvious that the memory of PW-1 has failed

him.

26. The plea that since only injuries 2, 3 and 4 were

opined to be the result of the use of a double edged weapon

require an inference to be drawn that two weapons of offence

were used and hence it was a case of two persons assaulting

the deceased; appears to have been made by learned counsel

without appreciating what a rapi is and without perusing the

sketch Ex.PW-18/E.

27. The rapi, a chisel, recovered in the instant case, as

per Ex.PW-18/E, has a handle 11.7 cm long and a blade 8.1 cm

in length. The head of the chisel is 2.4 cm broad. He who has

seen a chisel, would understand that the head of a chisel is

sharpened as a blade and even the edges are sharp covering a

little distance of the blade i.e. the head of the blade is

tempered by heating and then cooling and at each stage,

grinded to sharpen the same, so that wood can be shaved. We

have noted the injuries on the person of the deceased in para 7

above. Save and except injury No.2, 3 and 4 which have

penetrated deep into the body, all other injuries are either skin

deep or subcutaneously deep; depth ranging from 0.5 cm to

0.9 cm. Injuries 5 to 8 are on the rear of the body, evidencing

that they were inflicted when the victim was attempting to flee.

Injury No.2 and 3 are on the chest. The nature of injuries

suggest that after the injured received the blows on the chest,

he attempted to flee and the assailant persisted with the

assault; injury No.4 was struck on the back side of the chest

followed by the other injuries; all of which are on the rear of the

body. These injuries which have not penetrated much deep,

can possibly be caused when the rapi was struck at an angle

and only one edge cut through the skin and the muscle

beneath.

28. It is true that PW-1, PW-3 and PW-4 have not

supported the case of the prosecution to the full, and have

denied having witnessed the appellant assaulting the

deceased. But, from the testimony of PW-1 it stands

established that at the time of the incident he had seen two

boys fighting, one of whom picked up his rapi and assaulted the

other. The testimony of PW-3 and PW-4 proves, that from the

place where the crime took place, the appellant was seen

running away and was being followed by a group of students of

the school who were shouting that the appellant be caught and

PW-3 and PW-4 joined the chase and apprehended the

appellant. When they did so, the shoes of the appellant were

stained with fresh blood. The testimony of PW-5 establishes

that when he was brought before him and questioned, the

appellant was in a perplexed state of mind. The rapi was

recovered from the place which was disclosed to the police by

the appellant i.e. the verandah of House No.447, Pocket-3,

Paschim Puri i.e. the house just adjoining House No.446 where

the carpenter was working and from where the rapi was picked

up. Human blood was detected on the rapi and the shoes of

the appellant. Said evidence forms a chain complete,

wherefrom the only inference which can be drawn is that of the

guilt of the appellant; ruling out his innocence.

29. There is no evidence that the appellant

premeditated the attack. The testimony of PW-1 establishes

that the appellant and the deceased were having a verbal

quarrel as they were walking down the street and all of a

sudden the appellant picked up the rapi which belonged to PW-

1 and assaulted the deceased. The origin of the quarrel is

unknown and therefore we give the benefit of doubt to the

appellant and hold that the facts of the case require it to be

held that the assault was the result of a sudden quarrel.

30. Learned counsel for the appellant cited the decision

reported as 2008 AIR SCW 7726 State of M.P. vs. Sughar Singh

& Ors. three injuries being (i) incised wound 1" x ½" x ¼" on

the middle of the head; (ii) incised wound 1" x ¼" x 1" on the

right leg and (iii) multiple contusions 4" x 2" and 5" x 2" were

held to be attracting culpable homicide not amounting to

murder and punishable under Section 304 Part II IPC.

31. The conceptual distinction between the offence of

„murder‟ punishable under Section 302 IPC and the offence of

culpable homicide not amounting to murder punishable under

Section 304 Part I or Part II IPC was explained in the decision of

the Supreme Court reported as State of AP v. R.Punnayya AIR

1977 SC 45. The decision guides that when a Court is

confronted with the question whether the offence is „murder‟ or

„culpable homicide not amounting to murder‟ on the facts of

the case, it will be convenient for it to approach the problem in

three stages. The question to be considered at the first stage

would be, whether the accused has done an act by doing which

he was caused the death of another. Proof of such causal

connection between the act of the accused and the death,

leads to the second stage for considering whether the act of

the accused amounts to „culpable homicide‟ as defined in

Section 299. If the answer to this question is, prima facie,

found in the affirmative, the stage for considering the operation

of Section 300, of Penal Code is reached. This is the stage at

which the court should determine whether the facts proved by

the prosecution bring the case within the ambit of any of the

four clauses of the definition of „murder‟ contained in Section

300. If the answer to this question is in the negative, the

offence would be „culpable homicide not amounting to murder‟

punishable under the first or the second part of Section 304,

depending, respectively, on whether the second or third clause

of Section 299 is applicable. If this question is found in the

positive, but the case comes within any of the Exceptions

enumerated in Section 300, the offence would still be „culpable

homicide not amounting to murder‟, punishable under the First

Part of Section 304 of the Penal Code.

32. We thus hold that the offence committed by the

appellant is not of murder but of culpable homicide not

amounting to murder.

33. The only question which arises to be considered now

is whether part-I of Section 304 IPC is attracted or part-II

thereof.

34. From the injuries caused on the person of the

deceased it is apparent that the first three blows were directed

on the chest. The ferocity of the blows No.2 and 3 can be

gauzed by the depth to which said blows have traversed the

body. The fourth injury, at the back of the chest is also

indicative of the ferocity of the attack. In fact, injury No.2 had

pierced through the right ventricle of the heart. Thus, from the

acts it can safely be inferred that the intention was of causing

such bodily injuries as were actually caused. The doctor‟s

opinion is clear that the injuries No.2, 3 and 4 were fatal. Thus,

the offence squarely falls under Part-I of Section 304 IPC.

35. We partly allow the appeal. The conviction of the

appellant for the offence under Section 302 IPC is modified, in

that, the appellant is convicted for the offence punishable

under Section 304 Part-I IPC. We sentence the appellant to

undergo rigorous imprisonment for a period of ten years and to

pay a fine of Rs.500/-; in default of payment of fine the

appellant shall undergo simple imprisonment for one month.

36. Copy of this decision be sent to the Superintendent,

Central Jail, Tihar for necessary action since the appellant is still

in jail.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

April 18, 2009 mm