Ram Avtar vs The State(Nct Of Delhi)
2009 Latest Caselaw 3058 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Judgment reserved on : July 29, 2009
                                Judgment delivered on : August 07, 2009

+                 CRIMINAL APPEAL NO.120/1995

         RAM AVTAR                                         ..... Appellant
                                Through:    Mr.Sumeet Verma, Amicus
                                            Curiae with appellant in
                                            person.

                                versus

         THE STATE(NCT OF DELHI)                          ..... Respondent
                            Through:        Mr.M.N.Dudeja, APP.

         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. This appeal is directed against the judgment of learned

Additional Sessions Judge dated 31st March 1995 vide which

the appellant has been convicted for the offence punishable

under Section 302 IPC read with Section 34 IPC for having

committed murder of his father Sohan Lal and also for the

offence punishable under Section 324 IPC read with Section 34

IPC for having caused simple injury to PW-7 Shyam Babu with

a sharp edged weapon and the consequent order on sentence.

2. Briefly stated, case of the prosecution is that on 11 th

September 1990 at about 1.20 AM, Duty Constable Chaman

Singh who was on duty from GTB Hospital Shahdara

telephonically informed the police station that one Shyam

Babu injured was got admitted in the hospital by one Vinod

Kumar. The information was recorded as DD No.23A.

Pursuant to the DD report, S.I. Niranjan Singh proceeded to the

hospital. In the meanwhile, SHO Police Station Nand Nagri Shri

Prem Singh also reached there along with police party. After

obtaining the MLC of the injured Shyam Babu, SHO Prem Singh

recorded his statement Ex.PW-7/A. The statement of Shyam

Babu revealed that he was a tenant of the deceased Sohan

Lal. On 11th September 1990, Shyam Babu, his wife and

Sohan Lal after watching a movie on VCR proceeded to sleep

on the roof of the building. At about 11.30 PM, appellant Ram

Avtar along with his co-accused came to the roof via staircase.

Their faces were covered and they were carrying knife in their

hands. Both of them attacked Sohan Lal with the knives.

Consequently, Sohan Lal suffered injuries and fell down. When

Shyam Babu tried to catch hold of them, they also attacked

him and caused him injuries. His wife raised an alarm and on

this appellant Ram Avtar and his co-accused ran away. PW-2

Vinod Kumar, thereafter, took injured Shyam Babu to GTB

Hospital in a three-wheeler scooter. After recording the

statement of Shyam Babu, the police party went to the place

of occurrence i.e. House No.C-455, Gali No.6, Ashok Nagar,

Delhi and found dead body of the deceased Sohan Lal at the

roof of the house. Thereafter, the statement of Shyam Babu

Ex.PW-7/A was endorsed by the SHO detailing the fact about

the death of Sohan Lal and recovery of his dead body and sent

it to the police station for the registration of the case. On the

basis of said statement, duly endorsed by the SHO, formal FIR

was recorded at Police Station Nand Nagri.

3. SHO Inspector Prem Singh, during the course of investigation,

got the spot of occurrence photographed. He seized from the

spot broken spectacles, two pairs of chappals, a single blood

stained chappal. He also lifted the sample of blood with the

help of cotton from the roof of the house as well as from the

ground floor of the house. He took into possession control

earth samples, recorded the statement of the witnesses and

sent the police party headed by S.I. Niranjan Singh in search of

the appellant. Appellant was arrested by S.I. Niranjan Singh

and his personal search was conducted vide memo Ex.PW-2/G.

Though during investigation appellant Ram Avtar made a

disclosure statement but no recovery was effected pursuant to

the personal search. The co-accused of the appellant could

not be arrested and he was declared a proclaimed offender.

After completing necessary formalities of the investigation,

appellant Ram Avtar was sent for trial for having committed

the offences punishable under Sections 302/307/34 IPC.

4. The appellant was charged under Section 302/307/34 IPC for

having committed murder of the deceased Sohan Lal and

attempting to murder Shyam Babu in furtherance of his

common intention with his co-accused.

5. Learned Amicus Curiae has assailed the impugned judgment

on the ground that learned Trial Court has not properly

appreciated the evidence and relied upon the testimony of eye

witnesses without assessing their credibility and

trustworthiness. Expanding the argument, he has contended

that the witnesses of prosecution have contradicted

themselves on various aspects, therefore their testimony is

under cloud. He has pointed out that according to PW-6 Sarla

Devi, at the relevant time, deceased Sohan Lal, her husband

Shyam Babu and she herself were sleeping on the roof of the

house whereas Shyam Babu has given a contradictory version

by stating that apart from three of them, one tenant was also

sleeping on the roof. Learned Amicus has also pointed out

that according to PW-7 Shyam Babu, after being stabbed was

pushed by the accused persons down the stairs and he fell

down in the veranda whereas his wife PW-6 Sarla Devi has

stated that her husband chased the accused persons even

upto ground floor where he fell down. Learned Amicus has

further pointed out that PW-2 Vinod Kumar has stated that

while he was sleeping in his room on the ground floor, he

heard the noise `bachao bachao' which fact is contradicted by

PW-3 Smt. Veena who has stated that she heard the noise of

`pakro pakro'. Learned Amicus has submitted that in view of

the aforesaid contradictions in the testimonies of the

witnesses of the prosecution, learned Trial Court ought to have

concluded that they were not being truthful and extended the

benefit of doubt to the appellant.

6. We have gone through the testimonies of the witnesses and in

our considered view the contradictions pointed out by the

learned Amicus are inconsequential and minor in nature. It is

seen from the record that the incident took place on 11th

September 1990 and the witnesses were examined sometime

from March 1993 onwards i.e. after a lapse of 2 ½ years. The

fact that the witnesses were examined after such a long time,

minor variations in their testimonies are bound to occur and

can be attributed to the failure of memory due to lapse of

time. Otherwise also, we do not find that there is much

difference between `pakro pakro' and `bachao bachao'. Even

the contradiction pointed out in the testimony of PW-6 Sarla

Devi and PW-7 Shyam Babu regarding the fact whether Shyam

Babu chased the appellant and his companion upto the ground

floor or whether he was pushed down the stairs is of no

consequence. The fact remains that both the witnesses are

consistent on the point that injured Shyam Babu fell down in

the veranda at the ground floor. PW-7 Shyam Babu sustained

injuries in the occurrence therefore his presence at the spot of

occurrence cannot be doubted. His version is fully

corroborated by PW-6 Sarla Devi on all material aspects of the

case. Therefore, we find no reason to disbelieve his

testimony. Otherwise also, even PW-3 Veena has corroborated

their version by stating that when she came out on hearing the

noise `pakro pakro', she saw PW-7 Shyam Babu drenched in

blood and wife of Shyam Babu told that Narender and Ram

Avtar had stabbed her husband. The said utterance on the

part of PW-6 Smt.Sarla Devi immediately after the occurrence

is so inter-twinned with the occurrence that it forms part of the

same transaction and amounts to her conduct during the

transaction which is admissible as a relevant piece of evidence

under Section 6 of the Indian Evidence Act. Therefore, even

the statement of PW-3, Smt. Veena, in our view, gives support

to the version of PW-7 Shyam Babu and PW-6 Sarla Devi.

Thus, under the circumstances, we do not find any infirmity in

the conclusion of the learned Trial Court to the effect that the

appellant along with his co-accused had actually stabbed the

deceased Sohan Lal and PW-7 Shyam Babu resulting in death

of Sohan Lal and simple injury to Shyam Babu.

7. The learned Amicus Curiae has submitted that the case of the

prosecution is that the appellant Ram Avtar was arrested on

12.09.1990 and at that time, he was wearing blood stained

pant and shirt, which story, according to the learned Amicus

Curiae, is highly improbable because under natural course of

circumstances, first reaction of the appellant, if he had

committed the murder, would have been to get rid of his blood

stained clothes which had a potential to establish his

culpability. He has urged us to infer from the aforesaid

circumstance that this is a case of unfair investigation by the

police.

8. The submission made by the learned Amicus Curiae is

speculative in nature. There can be so many reasons for the

appellant not trying to get rid of the blood stained clothes. We

do not propose to speculate on those reasons. From the

discussion above, it is apparent that the eye witness account

in this case is natural and consistent with the story of the

prosecution and there an aura of truth around the testimony of

the witnesses, one of them being injured Shyam Babu, who

himself is the victim of the occurrence.

9. The learned Amicus Curiae has further submitted that

prosecution case is doubtful because the weapon of offence,

i.e., dagger has not been recovered.

10. We do not find any merit in this submission. Non-recovery of

dagger by itself is not a circumstance to reject otherwise

truthful and reliable testimony of the witnesses.

11. Lastly, it is submitted by the learned Amicus Curiae that the

learned Trial Court has committed an error in law by

convicting the appellant under Section 302 IPC, whereas as

per the facts and circumstances of the case, the case of the

appellant falls within the purview of culpable homicide not

amounting to murder punishable under the first part of Section

304 IPC.

12. The facts which emerge from the evidence are that the

appellant and his co-accused (absconding), armed with deadly

weapons, i.e., knives, had entered the house of the deceased

Sohan Lal in the late hour of the night when he was about to

sleep and stabbed him brutally. As per the version of PW-12,

Dr. L.K. Barua, who conducted post mortem on the dead body,

the deceased had suffered as many as eight incised wounds

and out of which, four injuries were individually sufficient to

cause death in the ordinary course of nature. From the

aforesaid circumstances, no inference other than a clear

intention to murder can be drawn. Therefore, in our view, the

learned trial Judge has rightly convicted the appellant under

Section 302 IPC.

13. In view of our discussion above, we do not find any infirmity in

the impugned judgment. Appeal is, accordingly, dismissed.

AJIT BHARIHOKE, J.

August 07, 2009                            SANJAY KISHAN KAUL, J.
Ks/pst