Kishan Lal vs State
2009 Latest Caselaw 3376 Del

R-75
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of Decision: 26th August, 2009

+                            CRL.A. 407/2001


       KISHAN LAL                                  ..... Appellant
                Through:            Ms. Charu Verma, Advocate

                                    Versus

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

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE INDERMEET KAUR

1.     Whether the Reporters of local papers 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. Charged with the offence of having trespassed into

flat No.X-41/C DDA Colony, New Ranjit Nagar after making

preparations for causing hurt to the deceased Tilak Raj, and for

the offence of having murdered Tilak Raj, the appellant stands

convicted vide judgment and order dated 22.11.2002.

2. For the offence punishable under Section 452 IPC,

the appellant has been sentenced to undergo RI for three

years and pay a fine in sum of Rs.300/-. In default of payment

of fine he has been sentenced to undergo further

imprisonment for 20 days. For the offence of murder the

appellant has been sentenced to undergo imprisonment for life

and pay a fine in sum of Rs.500; in default of payment of fine

to undergo further imprisonment for one month.

3. To sustain the conviction against the appellant, the

learned Trial Judge has held that the testimony of Budho Devi

PW-1, the mother of the deceased and Puran PW-2, the brother

of the deceased, as also the testimony of a public witness;

namely, Hari Singh PW-8, inspires confidence and establishes

that with the intention of killing the deceased the appellant

entered flat No.X-41/C where the deceased resided with his

mother and his brother; the appellant was armed with an iron

pipe Ex.P-1 and a knife Ex.P-3. Both were used as weapon of

offence. A blow was inflicted on the head of the deceased with

the iron pipe and two stab wounds were inflicted in the chest

with the knife. The injuries caused with the knife cut through

the fourth inter-costal space, piercing the left lung at two

places, as a result the left lung collapsed triggering the death

due to haemorrhagic shock. That the appellant was

apprehended at the spot while fleeing and was beaten by the

public.

4. The learned Trial Judge has also held that the

prosecution has successfully established that pursuant to the

disclosure statement Ex.PW-1/G made by the appellant to the

investigating officer, the blood stained knife Ex.P-3 was

recovered from the roof of flat bearing No.X-44/C which is in

the vicinity of the flat where the crime was committed, as

recorded in the seizure memo Ex.PW-1/C. Lastly, it has been

held that a pair of chappal recovered from the spot where the

crime was committed, as noted in the seizure memo Ex.PW-

1/A, was proved to be those of the appellant.

5. Machinery of law was set into motion, when at 9:13

PM, DD Entry No.26A, Ex.PW-8/C, was recorded by the duty

officer at PS Patel Nagar that a quarrel had taken place near a

drain at Ranjit Nagar, X Block and police be sent.

6. ASI Satyavir Singh PW-10 accompanied by

Const.Randhir Singh PW-4 proceeded to the spot. Const.Faruq

PW-5 on beat duty also proceeded to the spot as some public

person told him of a quarrel in House No.X-41/C, DDA Colony,

Ranjit Nagar. In this manner, three police officers reached flat

No.X-41/C, DDA Colony, Ranjit Nagar. They learnt that the

injured named Tilak Raj had been removed to RML Hospital.

ASI Satyavir Singh proceeded to the hospital i.e. RML Hospital

and found that Tilak Raj son of Tara Chand had been admitted

at the hospital at 9:45 PM by his brother Puran PW-2.

7. He obtained a copy of the MLC Ex.PW-12/A of Tilak

Raj as per which Tilak Raj was unconscious and unfit for

making any statement.

8. Returning to the flat where the offence was

committed ASI Satyavir Singh recorded the statement Ex.PW-

1/A of Budho Devi PW-1, the mother of Tilak Raj as per which

statement, her son Tilak Raj was taking dinner while sitting on

a charpai at 9:00 PM when appellant, who resides in flat No.D-

25 and was known to her from before as he used to frequently

visit her house, came with an iron pipe in his hand and without

any cause hit her son on the head with the iron rod saying that

he would teach him a lesson. The assault on the head was

followed by the appellant inflicting knife blows on the chest of

her son. Her younger son Puran and she pounced upon the

appellant. They raised a noise at which people gathered and

caught the appellant before he could flee. Her son was

removed to the hospital.

9. An endorsement Ex.PW-9/A was made under the

statement aforesaid by ASI Satyavir Singh and dispatched to

the police station for FIR to be registered at 11:30 PM, the time

noted in the endorsement Ex.PW-9/A. The FIR was registered

at the police station at 11:45 PM. In the endorsement Ex.PW-

9/A it has been noted that the appellant was apprehended by

the neighbours and was beaten.

10. From the spot the iron pipe Ex.P-1 was seized and

noted in the seizure memo Ex.PW-1/B. A pair of chappals Ex.P-

5 and Ex.P-6 stained with blood were seized as noted in the

memo Ex.PW-1/E. Blood was lifted from the floor on a piece of

cotton as recorded in the memo Ex.PW-1/D. A photographer

Const.Naresh PW-14 was summoned who took three

photographs, Ex.PW-14/1 to Ex.PW-14/3 of the place of crime.

11. Since the appellant was apprehended at the spot

his custody was taken over by ASI Satyavir Singh who formally

arrested him and recorded his disclosure statement Ex.PW-

1/G. By the time the disclosure statement was recorded, the

next day had commenced i.e. 8.2.1996 and hence the

disclosure statement records that it was recorded on 8 th

February, 1996.

12. In the disclosure statement the appellant not only

confessed to the crime but stated that the knife with which he

had inflicted injuries on the deceased could be got recovered

by him from the roof of the flat where he had thrown the

same. Thereafter, the appellant led the investigating officer to

flat No.X-44/C and from the roof thereof got recovered a knife.

13. Since the appellant was injured he was taken to the

hospital where he was given medical treatment and his MLC

Ex.PW-15/A was obtained which notes injuries on the person of

the appellant.

14. Unfortunately, the injured could not be survived for

long and died at around 11:15 PM on the following day i.e.

8.2.1996. Information of the death was transmitted by the

duty officer at the hospital to the police station and said

information was recorded vide DD No.90-B, Mark A, at 11:15

PM in the hospital.

15. The body of the deceased was seized and sent to

the mortuary where post-mortem was conducted by

Dr.L.T.Ramani PW-20. The post-mortem report Ex.PW-20/A

was prepared by him recording that there were three injuries

on the person of the deceased. The first was on the skull. The

second and third were incised wounds in the chest cavity. He

further opined that injury No.1 was caused by a blunt weapon

and injury No.2 and 3 were caused by a sharp edged weapon

and were sufficient to cause death for the reason the left lung

had been cut at two places; one each being the resultant

internal injury pertaining to external injury No.2 and 3. That

the left lung partially collapsed triggering haemorrhagic shock

occasioned by blood loss.

16. The iron pipe Ex.P-1 which was seized from the flat

where the deceased reside and where the assault took place

along with the knife recovered pursuant to the disclosure

statement of the appellant as also the clothes of the appellant

and other blood smeared articles lifted from the place where

the crime was committed, upon serological examination

resulted in a report of blood being detected on the knife and a

pair of chappals stated to be that of the appellant recovered

from the scene of the crime. It was further opined that the

blood was of group „A‟ i.e. the blood group of the deceased.

17. We eschew reference to the disclosure statement of

the appellant and the recovery of the blood stained knife

pursuant thereto for the reason the appellant, as would be

noted hereinafter, was apprehended at the spot itself. There

was no occasion for him to go about secreting the weapon of

offence.

18. What has happened is clear. The flat of the

deceased is on the 4th floor as clarified by PW-1 during her

cross examination. The roof of the flat wherefrom the knife

was recovered is the roof of a flat in the vicinity owned by Hari

Singh PW-8. It is apparent that after the knife was used it was

flung outside either through the window or the door and hence

landed on the roof of a flat in the vicinity. We would only wish

to state that it is advisable for the investigating officers to

record the facts as truthfully as they ought to be recorded, for

the reason twisted statements of fact tend to cloud the truth

and give an impression of fabrication. There is no law that

each and every recovery must be pursuant to a disclosure

statement. When an accused, as in the instant case, is

apprehended at the spot and the weapon of offence is thrown

nearby, it would inspire equal confidence if evidence of its

recovery is led by speaking the truth i.e. by stating that a

blood stained knife was seen lying nearby and commonsense

guided the investigating officer that in all probability the same

was the weapon of offence and hence he seized the same. Or,

where a witness points towards the weapon of offence used by

the accused, which, keeping in view human conduct, we

presume would be the natural conduct of a witness, the

investigating officer should truthfully record said fact.

19. Be that as it may, we proceed to consider the

testimony of Budho Devi, her son Puran Singh and Hari Singh

the neighbour.

20. Budho Devi deposed the facts which we have noted

hereinabove while noting the contents of her statement

Ex.PW-1/A pursuant whereto the FIR has been registered. She

deposed that the statement Ex.PW-1/A bears the thumb

impression of her right thumb at point „A‟. She deposed that

the iron pipe Ex.P-1 was recovered from her flat i.e. flat No.X-

41/C DDA Colony Near Ranjit Nagar in her presence and the

seizure memo Ex.PW-1/B pertaining thereto was witnessed by

her and her thumb impression is at point „Y‟. She deposed

that the chappals of the accused Ex.P-5 and Ex.P-6 were

seized in her presence as noted in the seizure memo Ex.PW-

1/E and her right thumb impression was at point „R‟. She

deposed that blood was lifted from within her flat as recorded

in the memo Ex.PW-1/D which bears her right thumb

impression at point „P‟.

21. Eschewing reference to her testimony pertaining to

the recovery of the knife, qua her cross-examination, suffice

would it be to note that no suggestion has been given to her

that the blood shown as lifted in the memo Ex.PW-1/D was not

lifted from within her flat or that the iron pipe Ex.P-1 or the

chappals Ex.P-5 and Ex.P-6 were not lifted from within her flat.

22. Puran PW-2 the son of PW-1, deposed that he was

resting in a room in flat No.X-41/C at 9:00 PM on 7.2.1996. His

elder brother Tilak Raj, the deceased, was sitting on a cot with

his son Tarun and was taking meals. He heard: "I will not

leave you alive". Upon hearing this, he came out and saw

Kishan Lal with an iron pipe in his hand which he struck on the

head of his brother who started bleeding. Kishan Lal took out

a knife and stabbed his brother. He intervened and with the

help of his mother over-powered Kishan Lal. Public people

gathered and gave a beating to him. Somebody informed the

police. The police came and the custody of Tilak Raj was

handed over to the police.

23. Hari Singh PW-8 deposed that he was present in his

flat No.X-44/C DDA Colony New Ranjit Nagar, New Delhi and

saw appellant enter the house of the deceased. He heard

alarm sounds "Mar diya - Mar diya, Bachao - Bachao". He saw

the accused coming out of the house of accused Kallu and was

under the grip of the mother and brother of Kallu. (We note

that the witness is referring to the deceased Tilak Raj as Kallu).

He i.e. Hari Singh intervened and apprehended the accused.

24. We may note the testimony of two more witnesses

namely Const.Naresh PW-14 who took three photographs

Ex.PW-14/1 to Ex.PW-14/3 of the place of the crime. He

deposed that in the intervening night of 7 th and 8th February

1996 he was summoned by the investigating officer at around

12:00 night and took photographs of the spot i.e. the flat No.X-

41/C DDA Colony, New Ranjit Nagar, New Delhi. We note that

Naresh Kumar was not subjected to any cross examination.

25. Lastly we note the testimony of ASI Satyavir Singh

PW-10 who proved the various seizure memos referred to in

the testimony of PW-1 and also proved having recorded the

statement Ex.PW-1/A of Budho Devi. He deposed that the

seizures shown as recorded in the various memos prepared

were from the scene of the crime i.e. flat No.X-41/C.

26. Conscious of the fact that there was overwhelming

evidence against him as he was apprehended at the spot

itself, when he was examined under Section 313 Cr.P.C. the

appellant tried to explain the death of the deceased and

injuries on him, which as per the prosecution were the result of

the public beating him, when he was apprehended at the spot.

He claimed that the deceased and he were known to each

other and the deceased was a bad character of the area. They

used to smoke smack in a park in Ranjit Nagar colony. On the

day when the deceased died and he received injuries, Hari

Singh PW-8 saw them smoking smack. Puran PW-2 was also

present in the park. Both started beating him and Tilak Raj.

Relatives of the deceased and members of his community

came and started giving beating to Tilak Raj and him, with

whatever articles were lying in the park. He received injuries

on the forehead. Tilak Raj received grievous injuries and was

removed to his house. He was then taken to the hospital

where he died.

27. It is apparent that as per the appellant, the

deceased was injured at the park.

28. The defence of the appellant is clearly false for the

reason no witness of the prosecution, who has proved lifting of

blood of the deceased and other blood stained articles from

flat No.X-41/C, has been given even a suggestion that the said

blood stained articles were actually lifted from a park. The

photographer i.e. PW-14 who deposed that he took the

photographs of the scene of the crime from within flat No.X-

41/C has not even been cross examined.

29. It is apparent that the place where the crime took

place is the residence of the deceased i.e. flat No.X-41/C DDA

Colony, New Ranjit Nagar, New Delhi.

30. The only blemish in the evidence led by the

prosecution pertains to the recovery of the weapon of offence

i.e. the knife Ex.P-1, in respect whereof we have already

penned our thoughts hereinabove.

31. Apart from the blemish in the recovery of the knife,

learned counsel urges that the testimony of PW-1 to the effect

that her son i.e. the deceased was taking meals is false for the

reason the post-mortem report Ex.PW-20/A categorically

records that the food taken by the deceased was digested.

32. The argument has to be noted and rejected for the

simple reason, the deceased was taking food at 9:00 PM on

7.2.1996 when he was attacked and died the next day at

11:15 PM. It is obvious that the food taken by the deceased

was digested in the next 26 hours.

33. Learned counsel also submits that there are injuries

on the person of the accused as noted in his MLC Ex.PW-15/A.

34. The prosecution has explained the injuries on the

accused through the testimony of PW-2 who has deposed that

when the appellant was apprehended by the residents of the

colony they gave him beating. We note that the said fact has

been noted at the first instance i.e. in the endorsement Ex.PW-

9/A made by ASI Satyavir Singh.

35. In view of the eye witness account namely the

testimony of PW-1, PW-2 and PW-8 who have successfully

withstood the test of cross examination we concur with the

reasons and the conclusion arrived at by the learned Trial

Judge.

36. The appeal is dismissed.

37. The appellant has been admitted to bail. The bail

bond and surety bonds are cancelled. The appellant is

directed to surrender and suffer the remaining sentence.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

AUGUST 26, 2009       / mm