Rakesh @ Bhoop Singh vs State (N.C.T. Of Delhi)
2009 Latest Caselaw 3052 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Judgment reserved on: July 28, 2009

                               Judgment delivered on : August 07, 2009


+       CRIMINAL APPEAL NO. 51/1997

        RAKESH @ BHOOP SINGH                            ..... Appellant
                     Through:            Ms.Charu Verma, Advocate

                          Versus

        STATE (N.C.T. OF DELHI)                         ..... Respondent
                        Through:         Mr.M.N. Dudeja, Advocate

        CORAM:
        HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
        HON'BLE MR. JUSTICE AJIT BHARIHOKE


1.      Whether Reporters of local papers may be
        allowed to see the judgment?                              No
2.      To be referred to the Reporter or not ?                   No
3.      Whether the judgment should be reported
        in Digest ?                                               No


AJIT BHARIHOKE, J.

1. The appellant Rakesh has preferred the instant appeal

against the judgment of the learned Additional Sessions Judge in

Sessions case No.12/1995 arising out of FIR No.6/90, P.S. Parshad

Nagar, vide which he has been convicted under Section 302 IPC

for having committed murder of the deceased Prem Singh and

also under Section 27 of the Arms Act and the consequent order

on sentence.

2. Briefly stated the case of the prosecution is that in the

morning of 6th January, 1990, information about an incident of

fight near public toilets Arya Samaj Road, New Delhi was

conveyed by the Police Control Room to the Police Station

Parshad Nagar. It was recorded in the daily diary as entry No.9A.

Copy of the DD report was given to S.I. Ved Parkash who

proceeded to the spot of incident along with Constable Virender.

He found that the injured had already been removed to the

hospital. So, S.I. Ved Parkash went to JPN Hospital, there he met

PW Joginder, brother of the deceased and recorded his statement

(Ex.PW 5/A) and sent it to the Police Station for registration of

case and on the basis of the aforesaid statement, FIR No.6/90

under Section 307 IPC was registered. Prem Singh died on 6th

January, 1990 at 7.15 PM.

3. PW Joginder had stated to the Investigating Officer that at

about 10.00 a.m. in the morning, a boy met him on the road and

told him that his brother has been stabbed with knife by one

person. On this, he immediately reached near the tea shop, Arya

Samaj Road and saw his brother in injured condition having

stabbed injuries on his neck, abdomen and chest. His brother

deceased Prem Singh told him that he was stabbed by one

Rakesh, R/o Anand Parbat on the issue of some money

transaction. Thereafter he took his brother in a TSR to RML

Hospital from where he was referred to JPN Hospital due to the

strike of nurses.

4. S.I. Ved Parkash went to the spot and recorded statement of

the witnesses, he prepared site plan of the place of occurrence,

on the information conveyed by PW Makhan Singh. He seized the

blood stained earth and sample earth from the spot and searched

for the appellant accused but with no result. Further investigation

was taken over by Inspector Hoshiyar Singh. He arrested the

accused appellant on 7th January, 1990. On interrogation, the

appellant accused made a disclosure statement Ex.PW-5/C

wherein he disclosed that he could get the weapon of offence and

the clothes which he was wearing at the time of occurrence

recovered. Pursuant to the disclosure statement, the appellant

led the police party to House No. J-11, Punjabi Basti, Anand Parbat

and from there, he got recovered the dagger Ex.P3, his pant

Ex.P4, shirt Ex.P5, pair of shoes Ex.P1/1 to 2 and cover of the

dagger Ex.P6. On completion of necessary formalities of

investigation, the appellant was sent for trial.

5. The appellant was charged for offences punishable under

Section 302 IPC and Section 27 of the Arms Act. He pleaded not

guilty on both the counts and claimed to be tried.

6. Learned Amicus has submitted that the trial Court has erred

in not appreciating that the prosecution case is based upon the

motive i.e., dispute regarding loan transaction of Rs.1,050/-

between the deceased and the appellant, eye-witness account

and the recovery of weapon of offence and incriminating articles

at the instance of the appellant accused.

7. Regarding motive learned Amicus has submitted that the

learned trial Court ought to have considered that PW-5 Joginder,

who is brother of the deceased has deposed that there was no

previous quarrel at all between the deceased and the appellant.

In view of the aforesaid statement, learned trial Court ought to

have held that the prosecution has failed to prove motive on the

part of the appellant to kill the deceased.

8. We do not find any merit in the above submission of learned

Amicus. It would be seen from the record that PW7 Dev Karan,

though he is hostile to the case of prosecution, on the point of

actual stabbing has categorically stated that on 6th January, 1990,

at about 10.30 a.m. while he was going to take tea via public

toilets, he noticed the deceased Prem and the appellant accused

were having altercation with each other over the payment of

some money. He has not been cross-examined on this aspect by

the accused, therefore, his aforesaid version is deemed to have

been admitted as correct. Otherwise also version of PW7 Dev

Karan finds corroboration from the testimony of PW8 Makhan

Singh who has also stated that at the relevant time, he was using

public toilet and from within, he over-heard the deceased

demanding money from the appellant Rakesh. From the

aforesaid evidence, it is amply proved on record that there was

some money dispute between the deceased and the appellant

which culminated in the actual occurrence.

9. The learned Amicus Curiae has submitted that learned trial

Court has committed a gross error by convicting the accused on

the basis of eye-witness account of PW7 Dev Karan and PW8

Makhan Singh which was not put to the appellant in his statement

under Section 313 Cr.P.C. for affording him an opportunity to

explain the said incriminating evidence against him. In support of

this contention, she has relied upon the judgment in the case of

State of Goa vs. Subhash Ghogle, 2008 (14) Scale 75 and

Lalu Mahto & Anr. Vs. State of Bihar, 2008 (3) JCC 1800.

10. There can be no dispute on the legal position that the

incriminating evidence which has not been put to the accused in a

statement under Section 313 Cr.P.C. cannot be taken into account

for basing conviction. However, aforesaid argument of the

appellant has lost significance because we, during the

proceedings taking note of the grievance of the appellant, have

cured that irregularity making use of Section 465 Cr. P.C. and

recorded supplementary statement of the appellant Rakesh

regarding the eye-witness account of actual occurrence. The

appellant has taken a defence that he has been falsely implicated

in this case. He had strained relations with PW8 Makhan Singh

and because of that reason he has deposed against him.

11. The learned Amicus Curiae has further submitted that in the

instant case, only two alleged eye-witnesses have been examined

by the prosecution. Out of them PW7 Dev Karan has turned

hostile and not supported the case of the prosecution. So far as

PW8 Makhan Singh is concerned, defence of the accused is that

he had strained relations with Makhan Singh because of

professional rivalry and, therefore, Makhan Singh has deposed

falsely against him. Thus his testimony has to be analysed in that

background. She has pointed out that Makhan Singh admittedly

is a resident of Bulandshahar, U.P. and not of Arya Samaj Road,

New Delhi. He was employed in the factory of the deceased Prem

and his working hours were from 8.00 a.m. to 5.00 p.m. and

according to him, his factory was at a distance of 500 feet from

the place of occurrence. She has submitted that 6th January, 1990

being a working day of the factory, PW8 Makhan Singh was

supposed to be working in the factory at 10.30 a.m. when the

incident allegedly occurred. As such his presence at the spot of

occurrence at the relevant time is highly doubtful. In this view of

the matter, she has submitted that the testimony of PW8 is not

reliable and the appellant is entitled to the benefit of doubt.

12. We do not find any merit in the above argument of the

learned Amicus Curiae. Perusal of testimony of PW8 Makhan

Singh would reveal that in the cross-examination, he has stated

that he left the factory for going to public toilet at about 9.45 a.m.

after informing his brother-in-law Kishori. Therefore, there is

nothing unnatural in the witness being present in the public

toilets Arya Samaj Road at the relevant time. Further it would be

seen from testimony of PW7 Dev Karan, though he has not

supported the case of prosecution on the point of actual stabbing

of the deceased by the appellant, has stated that at about 10.30

a.m., he noticed accused and the deceased having altercation on

the issue of payment of money. Thereafter he went to take tea

and while he was taking tea, he heard the cries of "MAAR DIYA

MAAR DIYA BACHAO" and he rushed towards the spot of

occurrence. He saw deceased Prem, who was bleeding, being

chased by the appellant having knife in his hand. No suggestion

was given to PW7 that such a scene did not occur, therefore,

there is no reason to disbelieve his version which gives sufficient

corroboration to the testimony of PW8 Makhan Singh who has

categorically stated that he saw the appellant Rakesh giving knife

blow on the deceased. Thus there is no scope for any doubt

against the correctness of version of PW8 Makhan Singh.

13. The learned Amicus Curiae has submitted that perusal of

MLC of the deceased Ex.PW9/A would show that deceased was

brought to the hospital by one Pappu which belies the story of the

prosecution that PW5 Joginder took him to the hospital. This

argument of the learned Amicus Curiae is without any substance

because PW8 Makhan Singh in his cross-examination has

explained that PW5 Joginder the brother of the deceased is also

known as Pappu.

14. The learned Amicus Curiae has further submitted that the

prosecution has left lacuna in the trial by not producing the doctor

who prepared the MLC Ex.PW9/A and also not showing the

weapon of offence to PW18 Dr.P.C. Dixit, who conducted the post-

mortem on the dead body of the deceased, to seek his opinion

whether the injuries on the deceased Prem could have been

caused by the aforesaid dagger. This, as per learned Amicus

Curiae, has caused a grave prejudice to the appellant, therefore,

he ought to have been extended the benefit of doubt.

15. We do not find any merit in this contention firstly, because

so far as non-production of Dr.Sanjeev Aggarwal for proving the

MLC prepared by him is concerned, PW9 Nand Lal, Record Clerk,

RML Hospital, who has proved MLC Ex.PW9/A by way of secondary

evidence, has explained that Dr.Sanjeev Aggarwal has left the

service of the hospital. Therefore, it is apparent that he could not

have been produced without undue delay and expense. Coming

to the other limb of the argument, it would be seen from the

testimony of PW18 Dr.P.C. Dixit that he has categorically stated

that injury no.1, 2, 4 and 5 on the dead body of the deceased

could be caused by a sharp edged weapon. Which opinion is

consistent with the story of the prosecution that the deceased

was stabbed by the accused with a knife/dagger. Therefore, in

our view non-production of the dagger before the concerned

doctor to seek his opinion, does not materially affect the outcome

of this case particularly when the testimony of the eye-witness is

found to be reliable.

16. The learned Amicus Curiae has submitted that the recovery

of the weapon of offence i.e. dagger Ex.P3 and incriminating

articles including blood stained shirt Ex.P5 of the appellant at his

instance is highly doubtful, firstly, because there is no public

witness to the recovery, secondly, it would be seen that even as

per the testimony of PW17 S.I. Ved Parkash and PW19 ACP

Hoshiyar Singh, the house from where the recovery was affected

was open and it belonged to the friend of the deceased. She has

argued that since the house was open, anybody could have

access to the aforesaid house and have placed the blood stained

dagger as well as blood stained shirt in the aforesaid house.

17. We are not convinced with the above referred submission

by the learned Amicus Curiae. There is no principle of law that

without corroboration by independent witnesses, the testimony of

police personnel, which is otherwise reliable, cannot be relied

upon. Seeking corroboration to the testimony of police personnel

is only a rule of prudence. It is a known fact that in our country,

public persons are generally reluctant to participate in criminal

investigations. Therefore, to our mind, it is not a proper judicial

approach to suspect the credibility of police officers without good

grounds. It would be seen from record that the Investigating

Officer ACP Hoshiyar Singh has explained the absence of

independent witnesses to the recovery by stating that he did

summon the public persons from nearby houses but they refused

to join the investigation. Therefore, also we do not find fault with

the investigation which may make the credibility of the

Investigating Officer and PW-17 S.I. Ved Parkash suspect.

Further, on perusal of testimony of PW-19 ACP Hoshiyar Singh,

which finds corroboration by the testimony of PW-17 S.I. Ved

Parkash, it is apparent that the accused led the police party to the

aforesaid house and took out the dagger Ex.P3 and other

incriminating articles i.e. clothes etc. from „Parchchatti‟. Only

because the house from where the recovery was affected

belonged to the friend of the appellant, it cannot be inferred that

those articles were not recovered at the instance of the appellant

pursuant to his disclosure statement. The fact that the house

belonged to the friend of the accused appellant gives an

assurance that he could have access to the aforesaid house.

Further it transpires from the evidence that the appellant got

recovered the dagger and other articles from the „Parchchatti‟

which provides sufficient indication to the fact that the appellant

had a knowledge that the aforesaid articles including the weapon

of offence were concealed there.

18. The learned Amicus Curiae has further submitted that PW7

Dev Karan has stated that while he was taking tea near the spot

of occurrence, he heard the noise „MAAR DIYA MAAR DIYA

BACHAO" and then he ran towards the spot and saw deceased

Prem, who was bleeding, being chased by the appellant having

knife in his hand. She has submitted that if the aforesaid

testimony is true, then there should have been a tea shop near

the spot of occurrence. However, on perusal of site plan

Ex.PW17/B prepared by the Investigating Officer, it transpires that

no tea shop has been shown near the spot of occurrence. She

has thus urged us to infer that the prosecution story is doubtful.

19. We find no merit in this contention. If the Investigating

Officer has not shown the location of the tea shop in the site plan,

it cannot be taken as a ground to reject the testimony of the

prosecution witnesses which is otherwise natural and trustworthy.

Further, if at all the appellant really wanted to make an issue out

of this discrepancy in the site plan, it was expected of him to put

the site plan to the witnesses including PW17 S.I. Ved Parkash in

their cross-examination to pin point the location of the tea shop or

to find out whether or not there was a tea shop actually located

near the spot of occurrence. Since he has not opted to do so, now

he cannot be permitted to take advantage of this minor

discrepancy if at all this is a minor lapse on the part of the

Investigating Officer.

20. The learned Amicus Curiae has further submitted that as

per the testimony of the recovery witness, there were no blood

stain on dagger Ex.P3 when it was recovered, whereas CFSL

report Ex.PX suggests that that the dagger when sent for

serological examination gave positive test for blood. She has

submitted that in view of that contradiction, the evidence of

recovery becomes highly doubtful. We do not find any merit in

this contention because perusal of the seizure memo Ex.PW5/D

would reveal that in the seizure memo, it is clearly mentioned

that front portion of the recovered dagger was stained with blood.

21. Lastly, the learned Amicus Curiae has submitted that even if

for the sake of argument, the case of prosecution is taken to be

true, then also given the circumstance that the occurrence took

place as a result of altercation regarding recovery of minor sum of

Rs.1050/- at the spur of movement, no intention could be imputed

to the appellant for committing the murder of the deceased.

Therefore, at the most, the case of the appellant falls within the

definition of culpable homicide not amounting to murder

punishable under Section 304 IPC and not under Section 302 IPC.

In support of this contention, she has relied upon the judgment in

the case of Ramchandra Dhondiba Kaware Vs. State of

Maharashtra, 2009 (2) Scale.

22. We do not find any merit in the above contention. The facts

which emerge from the evidence of the prosecution is that the

appellant had taken advance of Rs.1050/- from the deceased

which fact he has admitted in his statement under Section 313

Cr.P.C. On the fateful day, there was an altercation between the

appellant and the deceased regarding return of that money. The

appellant was carrying a knife/dagger at public place which itself

is an offence and that he stabbed the deceased brutally. From

the testimony of PW18 Dr.P.C. Dixit who conducted the post-

mortem of the deceased as many as 6 injuries were found on the

body of the deceased out of which two injuries were found as a

result of operative procedures, remaining four injuries were as

below:-

"1. Stiched incised steb would 2.5 cm obliquly placed over upper lateral part of left side neck, 3 cms. below the left ear lobule and 10.5 cm below and lateral to left angle of mouth. On removing the stiches the upper angle is acute and the lower angle was obtuse. The wound was going downwards, backwards and medially in the underlying tissue and perotid gland upto an extend of 4.5 cm. approximately . The lower angle is 152 cms. above the left heel.

2. Incised stitched steb would 2 cm, transversely placed over front of neck, 1cm.right to middleline and 8 cm. above the medial end of right clavical. On removing the stitches lateral angle was acute and medial one was obtuse. The wound was going medially, downwards and backwards upto an extent of 2.5 cm to out the Anterior Jugular vein on the right side. The lateral angle was 148cms. above the right heel.

4. Stiched incised stab would 4.5 cm. obliguly placed over upper part of abdomen right side. 1.5cm. right to middle line and 10.5cm. below and medial to right nipple. On removing the stitches the upper angle was acute. Lower angle was obtuse. The wound was abdominal cavity deep. The lower end was 118 cm. above the right heel.

5. Incised stab would 2.8 cmX1.2 cms pindle shaped obliquely placed over lower outer part of right side abdomen, 15 cms. right to midline and 21 cms. below and lateral to right nipple. The lower angle was acute and upper one was obtuse. The wound was going upwards backwards and medially in the underline mussletissue up to an extent of 4.5 cm. The lower angle was 111 cm above the right heel.

23. In the opinion of PW18 Dr.P.C. Dixit, injuries 2 and 4 were

sufficient to cause death in ordinary course individually as well as

collectively. As many as 4 injuries were given to the deceased,

who was unarmed, on vital parts of the body namely the neck and

the abdomen. Injury no.2 was so grave that it caused a wound

going medially downwards and backwards upto the extent of 2.5

cm to cut the anterior jugular vein on the right side and even the

injury no.4 was so grave that on removing the stitches it was seen

that the wound was abdominal cavity deep. This shows the state

of mind of the deceased and leaves no scope for doubt that the

above referred injuries were inflicted by the appellant with a clear

intention to cause death of the deceased or to cause such injuries

which in all eventualities were likely to cause death of the

deceased.

24. We do not find any infirmity in the conviction recorded by

learned trial Judge under Section 302 IPC. In view of our

discussion above, we do not find any merit in the appeal which is

accordingly dismissed.

25. The appellant Rakesh @ Bhoop Singh is on bail. His bail-

cum-surety bond is, accordingly cancelled. He is ordered to be

taken into custody to undergo the remaining sentence as

awarded by the learned Additional Sessions Judge.

AJIT BHARIHOKE, J.

August 07, 2009                    SANJAY KISHAN KAUL, J.
gm