Gore Lal vs State
2009 Latest Caselaw 3395 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Reserved on: 24th August, 2009
                      Judgment Delivered on: 27th August, 2009

+                            CRL.A.392/2001

        GORE LAL                                    ..... Appellant
                             Through:    Mr.Sumeet Verma, Adv.

                                   versus

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


        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


INDERMEET KAUR, J.

1. Vide impugned judgment and order dated 3.8.1996,

accused Gore Lal had been convicted for having committed murder

of Lakhan. He had been sentenced to undergo imprisonment for life

and to pay a fine of Rs.5000/-; in default of payment of fine to

undergo R.I. for six months. The other co-accused had been

acquitted for lack of sufficient evidence against them.

2. This incident is dated 26.4.1991. The version of the

prosecution has been unfolded in the statement Ex.PW-2/A of the

complainant Halki Bai which had subsequently formed the basis of

the FIR. As per her version, at about 7.30 PM her husband Lakhan

was lying on a cot in the lane outside their jhuggi and in front of

Shiv Mandir. She was present in the gali out side. Co-accused

Kamta Prasad accosted her husband as to why he had spread his

cot in the public lane. Her husband, Lakhan got annoyed and told

him he would spread his cot wherever he wanted to, pursuant to

which abuses were exchanged between the two. Thereafter co-

accused Kallu, Mattu and present appellant Gore Lal also reached

the spot and asked Lakhan to remove his cot from the public lane

upon which Lakhan refused. Kamta Prasad exhorted his

companions by shouting „Mar Sale Ko‟; co-accused Kallu and Mattu

pinned down Lakhan and Gore Lal gave him repeated knife blows;

thereafter all the aforesaid persons fled away.

3. On this fateful day, Const.Joginder Singh, PW-8 was on

patrolling duty as a beat constable, in the aforestated area i.e.

Khanna Market, Lodhi Colony, New Delhi. He reached near the

place of quarrel; matter was reported by him on telephone vide DD

No.17-A Ex.PW-1/F to the local police station. This D.D. was marked

to SI Ram Niwas PW-18 who along with Const.Duli Chand PW-16 and

Const.Raj Kapoor PW-11 reached near the Shiv Mandir, Indira

Gandhi Camp, Lodhi Colony behind Khanna Market. A dead body

identified as that of Lakhan was found lying on the spot. His wife

Halki Bai PW-2 was found weeping. Her statement Ex.PW-2/A was

recorded upon which the endorsement Ex.PW-18/A was made and

thereafter the rukka was sent pursuant to which the formal FIR

Ex.PW-5/D was registered by HC Mahinder Singh PW-5.

4. Another eye-witness Baldev PW-3, the brother of the

deceased, had also been examined by the Investigating Officer and

he has corroborated the version as given by PW-2.

5. Crime team and the dog squad were summoned. The

scene of occurrence was photographed by Const. Sunder Singh PW-

13 and seven photographs Ex.PW-13/P1 to Ex.PW-13/P7 were taken;

the negatives of which are Ex.PW-13/P8 to Ex.PW-13/P14. Const.

Rajender Singh PW-14 had also taken four photographs Ex.PW-14/A

to Ex.PW-14/D and negatives have been proved as Ex.PW-14/E to

Ex.PW-14/H. Rough site plan Ex.PW-18/C was prepared by the

Investigating Officer and thereafter the site plan to scale Ex.PW-9/A

was prepared by Insp.Devender Singh PW-9. The exhibits which

included blood stains from the spot as also a pair of chappals were

seized.

6. On 27.4.1991 at the pointing out of Baldev, the accused

Gore Lal was arrested vide memo Ex.PW-4/A and his disclosure

statement Ex.PW3/C was recorded. He thereafter got a knife Ex.P-9

recovered from the bushes which was seized vide memo Ex.PW3/D

i.e. the alleged weapon of offence. Blood stained shirt of Gore Lal

was also taken into possession vide memo Ex.PW-4/E. The CFSL

vide its report Ex.PW-18/E and Ex.PW-18/G opined that the shirt was

stained with blood group B which was the blood group of the

deceased. No reaction on the blood stained knife could, however,

be obtained.

7. The post-mortem on the deceased was conducted on

the following day i.e. 28.4.1991 by Dr.D.N.Bhardwaj PW-1 vide his

report Ex.PW-1/A, who had noted the following injuries:

"1. Stab wound was present on left side of chest plasted obliquely situated 8 c.m. below left nipple and 10 c.m. left the mid line. Size of wound was 2 c.m. x 0.5 c.m. x chest cavity D. Margines were clean cut gapping was present and the wound was going medially upwards and backwards and on dysection intercostel muscles were cut obliquely there was cut in the pericardium and puncturing at its apex. In the heart dimensions of the wound were 1.5 c.m.s into 0.25 c.m. x deep in the heart cavity. Hemo paricarian was present total depth of the wound were seven c.m. and the wound was situated in the fifth intercostel space.

2. Stab wound was present on left side of chest placed obliquely situated 15 c.m. below interior axillary fold and 17 c.m. left from mid line. Size of wound was 2.2 c.m. into 0.5 c.m.x chest cavity deep. The wound was in the 10th intercostel space. Margins were clean cut gapping was present. The wound was going medially backward and upward cutting intercostel mussels obliquely and piercing spleen on its lateral aspect. Size of cut in the spleen was 1.5 c.m. x 0.2 c.m. x 1 c.m. and total depth of this wound was 7.5 c.m. Both these injuries were ante mortem in nature and fresh before death. In the chest about two

litres of blood was present which was semi cogulated in the peritorial cavity about one litre of semi cogulated blood was present. The cause of death in my opinion was haemohrragic shock following above mentioned ante mortem injuries."

8. He had opined that both the injuries individually as well

as collectively are sufficient to cause death; vide his subsequent

opinion dated 29.7.1991 Ex.PW-1/B he, after examination of the

knife had opined that this could be the weapon of offence. In the

opinion Ex.PW-1/B, the sketch of the knife with reference whereto

the opinion was given has been drawn. The sketch shows that the

knife has a blade of 9.3 cms i.e. is less than 4 inches long. It is

apparent that the knife is an ordinary pocket/pen knife.

9. The learned Trial Judge had convicted the accused by

placing reliance upon the versions of the eye-witnesses PW-2 and

PW-3. The recovery of the blood stained knife by the appellant

pursuant to his disclosure statement was the additional

incriminating circumstance. There being no sufficient evidence

against any other co-accused, they stood acquitted.

10. On behalf of the appellant it has been argued that the

testimony of the eye-witnesses is clearly suspect. There are

inherent contradictions in the version of Halki Bai, PW-2, qua her

first version before the Investigating Officer; she has specifically

been confronted with her statement made to the police Ex.PW-2/A

and she had denied that she was present in the gali outside her

house at the time of the incident. She had also denied that co-

accused Kamta Prasad had a verbal duel with her deceased

husband Gore Lal or that any argument had ensued thereafter on

the placement of the cot; no role had also been attributed by PW-2

to the other co-accused which had found mention in her statement

before the Investigating Officer. It is stated that these are material

omissions which have been made by PW-2 in her version on oath in

court which discredit and shake her testimony. Attention has also

been drawn to the version of Pw-3 Baldev, the other eye-witness. It

is argued that this witness had also been declared hostile by

learned Additional Public Prosecutor and permission had been

granted by the court to cross examine him. He had also not

attributed any role to the co-accused; it is argued that this appears

to be a clear case where both PW-2 and PW-3 who are the wife and

the brother of the deceased are hell-bent to secure a conviction

against Gore Lal for some enmity or ulterior motive and they have

given a clean chit to the other companions of Gore Lal. These

versions of PW-2 and PW-3 are irreconcilable and no reliance can be

placed upon their testimonies. The recovery of the weapon of

offence is also demolished in view of the fact that this had been

recovered from an open place near the bushes which is a area

accessible to the public at large; it is not the case of the prosecution

that the weapon of offence has any special mark of identification

which could be associated with accused alone. For all the

aforestated reasons benefit of doubt has to be given in favour of the

accused.

11. We have perused the record and we have noted the

submissions.

12. This is an eye-witness account. The court has to

carefully scrutinize the versions of PW-2 and PW-3 to draw a

conclusion as to whether their testimonies are trustworthy and

reliable enough to sustain the conviction of the accused.

13. Halki Bai has come into the witness box as PW-2. She

had deposed that on the fateful day i.e. 26 th of the month, her

husband Lakhan was sitting on a cot; Shiv Mandir is at a short

distance from their house and in between there is another jhuggi;

she heard noise and came out; it was about 7 O‟clock; she saw

police outside her house; accused Gore Lal had stabbed her

husband and blood was coming out of his stab wounds; on seeing

the injuries she fainted. She was permitted to be cross-examined

by the learned APP. Learned Trial Judge had noted that the witness

is illiterate. In her cross-examination she had admitted that her

husband was lying on a cot near the Shiv Mandir. She had

reiterated that Gore Lal had attacked her husband with knife many

times and she saw Gore Lal running away after stabbing her

husband; her husband had bled profusely after he received injury

and he collapsed there. She stated that she does not remember if

her brother-in-law Baldev saw the incident or not. She has further

denied that she had told the police that she was sitting in the gali

outside at the time when the incident had occurred; she had also

denied that Kamta Prasad had asked her husband as to why he had

spread his cot on the public lane, pursuant to which a verbal

argument had taken place between the two. She had also denied

that she had in her earlier version to the Investigating Officer stated

that Kallu and Mattu had pinned down her husband and thereupon

the accused Gore Lal had attacked him with a knife; she also denied

that Kamta Prasad had exhorted his companions by shouting „Mar

Sale Ko‟.

14. These are the omissions which have been highlighted

by the learned defence counsel which did not find mention while

she was deposing in court but had been stated by Halki Bai in her

statement to the Investigating Officer.

15. Baldev PW-3 is the brother of the deceased Lakhan. He

deposed that on 26.4.1991 at about 7.30 PM he was present near

the place of occurrence and his deceased brother was sitting on a

cot near the temple; Gore Lal stabbed him repeatedly 5-7 times

with a knife; the wife of his brother Lakhan was busy in looking after

her child who had just defecated; no one else was present there;

after stabbing Gore Lal fled away from the scene. Next day he was

arrested; the other co-accused were also arrested. He has further

deposed that Gore Lal had also produced the weapon of offence and

had got it recovered from the bushes near the railway station which

is close to Karbala. He was also permitted to be cross-examined by

the learned prosecutor as he was resiling from his earlier version

given to the Investigating Officer. In his cross-examination by the

prosecutor he has stated that his brother was sitting on a cot;

Kamta Prasad came in a drunken stage and asked him to remove

the cot pursuant to which abuses were exchanged between them.

He had admitted that Kallu, Gore Lal and Mattu also came there.

Gore Lal stabbed his brother; he fled away from the scene; he did

not see the other accused persons. He stated that he does not

remember if the shirt of Gore Lal was blood stained or not. In his

cross-examination by the defense counsel, he stated that Gore Lal

had given the knife to the police in the police station. This witness

had also ascribed no role to the other co-accused.

16. The court has to examine the aforestated versions i.e.

the versions of PW-2 and PW-3 to decide the submission of the

learned defence counsel as to whether they are so irreconcilable

that they cannot pass the test of credibility and hence these

versions have to be discarded.

17. While scrutinizing these versions, we have to keep in

mind that both the aforesaid witnesses are rural witnesses who are

illiterate village rustics and this has also been so observed by the

presiding officer while recording the version of PW-2. We have also

to bear in mind that variances on the fringes, discrepancies in

details, contradictions in narrations and embellishments in

inessential parts cannot militate against the veracity of the core of

their testimony, provided there is the impress of truth and

conformity to probability in the substantial fabric of the testimony

delivered. In its decision dated 29.5.2009 disposing of 3 criminal

appeals, lead matter being Crl.A.No.327/2007 Akbar & Anr. Vs.

State, with reference to the decisions of the Supreme Court

reported as Tahsildar Singh Vs. State of UP AIR 1959 SC 1012,

Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat AIR 1983 SC 753

& Leela Ram Vs. State of Haryana AIR 1997 SC 3717, 13 principles

to be followed while evaluating evidence of eye witnesses were

culled out being:-

I While appreciating the evidence of a witness, the approach

must be whether the evidence of the witness read as a whole

appears to have a ring of truth. Once that impression is formed, it is

undoubtedly necessary for the Court to scrutinize the evidence

more particularly keeping in view the deficiencies, drawbacks and

infirmities pointed out in the evidence as a whole and evaluate

them to find out whether it is against the general tenor of the

evidence given by the witness and whether the earlier evaluation of

the evidence is shaken as to render it unworthy of belief.

II If the Court before whom the witness gives evidence had the

opportunity to form the opinion about the general tenor of evidence

given by the witness, the appellate court which had not this benefit

will have to attach due weight to the appreciation of evidence by

the trial Court and unless there are reasons weighty and formidable

it would not be proper to reject the evidence on the ground of

minor variations or infirmities in the matter of trivial details.

III When eye-witness is examined at length it is quite possible for

him to make some discrepancies. But courts should bear in mind

that it is only when discrepancies in the evidence of a witness are

so incompatible with the credibility of his version that the Court is

justified in jettisoning his evidence.

IV Minor discrepancies on trivial matters not touching the core of

the case, hyper technical approach by taking sentences torn out of

context here or there from the evidence, attaching importance to

some technical error committed by the investigating officer not

going to the root of the matter would not ordinarily permit rejection

of the evidence as a whole.

V Too serious a view to be adopted on mere variations falling in

the narration of an incident (either as between the evidence of two

witnesses or as between two statements of the same witness) is an

unrealistic approach for judicial scrutiny.

VI By and large a witness cannot be expected to possess a

photographic memory and to recall the details of an incident. It is

not as if a video tape is replayed on the mental screen.

VII Ordinarily it so happens that a witness is overtaken by events.

The witness could not have anticipated the occurrence which so

often has an element of surprise. The mental faculties therefore

cannot be expected to be attuned to absorb the details.

VIII The powers of observation differ from person to person. What

one may notice, another may not. An object or movement might

emboss its image on one person's mind whereas it might go

unnoticed on the part of another.

IX By and large people cannot accurately recall a conversation

and reproduce the very words used by them or heard by them. They

can only recall the main purport of the conversation. It is unrealistic

to expect a witness to be a human tape recorder.

X In regard to exact time of an incident, or the time duration of

an occurrence, usually, people make their estimates by guess work

on the spur of the moment at the time of interrogation. And one

cannot expect people to make very precise or reliable estimates in

such matters. Again, it depends on the time-sense of individuals

which varies from person to person.

XI Ordinarily a witness cannot be expected to recall accurately

the sequence of events which take place in rapid succession or in a

short time span. A witness is liable to get confused, or mixed up

when interrogated later on.

XII A witness, though wholly truthful, is liable to be overawed by

the court atmosphere and the piercing cross examination by

counsel and out of nervousness mix up facts, get confused

regarding sequence of events, or fill up details from imagination on

the spur of the moment. The sub-conscious mind of the witness

sometimes so operates on account of the fear of looking foolish or

being disbelieved though the witness is giving a truthful and honest

account of the occurrence witnessed by him.

XIII A former statement though seemingly inconsistent with the

evidence need not necessarily be sufficient to amount to

contradiction. Unless the former statement has the potency to

discredit the later statement, even if the later statement is at

variance with the former to some extent it would not be helpful to

contradict that witness.

18. PW-2 has categorically ascribed a specific role to Gore

Lal i.e. act of stabbing Lakhan repeatedly with a knife. As per her

version, when she came out of the jhuggi, she saw Gore Lal

stabbing her husband and he gave him repeated knife blows,

pursuant to which he started bleeding profusely and he collapsed

there and then. She fainted. It is for this reason that she could not

make a categorical assertion as to whether her brother-in-law

Baldev had witnessed the incident or not. In our view, she is not a

tutored witness who has made a parrot-like recitation toeing the line

of the prosecution to secure a conviction qua the accused. She has

with clarity stated that because she fainted she cannot say as to

whether Baldev had witnessed the incident or not and this is

reiterated in her cross-examination wherein she has admitted that

she saw Baldev when she regained her consciousness. She had not

witnessed the earlier altercation i.e. verbal abuse between Kamta

Prasad and her deceased husband about the shifting of the cot from

the lane and this finds corroboration from the testimony of PW-3

who has stated that at that time his bhabhi i.e. PW-2 was busy with

her child who had just defecated.

19. PW-2 appears to be a trustworthy witness and the

omission with regard to this first part of the incident i.e. the

argument between Kamta Prasad and Lakhan not going to the core

of the incident; the fact in issue being as to who had stabbed

Lakhan; which fact has been reiterated by PW-2 in her lengthy

cross-examination that it was Gore Lal who had given knife blows to

her husband. Even otherwise, there could seldom be a case in

which some inaccuracies which are not of a serious nature do not

appear but they would not affect the genesis of the prosecution

case. PW-2 had also not ascribed any specific role to the co-

accused; so also is the version of PW-3 which had led to the

acquittal of the other co-accused.

20. Version of PW-3 is categorical that a verbal altercation

had taken place between his brother and Kamta Prasad about the

spreading of the cot in the service lane near the temple; Gore Lal

had stabbed his brother 5-7 times. Gore Lal is known to him.

21. No suggestion has been given to either of the two eye-

witnesses i.e. either PW-2 and PW-3 that they have deposed falsely

for any ulterior reason or purpose or that they have any specific

enmity qua Gore Lal for which they have falsely implicated him.

22. We have to bear in mind that eye-witnesses to a

incident may not react uniformly and reaction of each individual

may be different. PW-2 had fainted when she saw the stab injury on

her husband. She regained her consciousness in intermittent

stages; that was the reason why she could not state whether her

brother-in-law Baldev had witnessed the incident or not. PW-3 was

more composed. PW-2 has further stated that there were many stab

injuries which were given by the accused; PW-3 has given the

number as 5-7. Both these eye-witnesses i.e. PW-2 and PW-3 had

been examined and cross-examined at length and there are bound

to be some discrepancies; these discrepancies, in our view, which

have been pointed out are however not so incompatible which can

lead the court to draw a conclusion that their versions must be

discarded; they are minor discrepancies on trivial matters which

have not touched the core of the case. Both PW-2 and PW-3 have

categorized the role of the accused Gore Lal as the offender who

had inflicted the stab injuries on the victim. We also have to keep

in mind that these witnesses are rustic villagers and while

scrutinizing their testimonies, the intelligence power, observation as

also the retentive memory of the witness has to be kept in mind.

Testimony has to be read in its entirety to decide whether it has a

ring of truth nor not.

23. In our view, both the witnesses have pass the test of

reliability and their versions are natural, probable, coherent and

cogent.

24. We have chosen to ignore the recovery of the blood

stained knife from the bushes as the said recovery was from an

open place which is an area accessible to the public at large;

recovery had been effected one day after the incident; PW-3 has

admitted that the knife was given by the accused in the Police

Station. There was also no reaction on the grouping of the blood

which had been detected on the knife.

25. The post-mortem report had evidenced two vital injuries

on the deceased i.e. on the chest of the deceased.

26. An unfortunate life has been lost but the question which

arises for decision is whether the present is a case of murder

simplicitor or culpable homicide not amounting to murder. The line

of distinction between the two offences is there but nevertheless

distinct.

27. The weapon of offence is a pocket knife. As per the

seizure memo Ex.PW-1/B, the length of the blade is 9.3 cms., length

of the handle is 11.7 cms., total length of the knife 21 cms.; it

cannot strictly qualify as a weapon of offence; it was a pocket knife

which was presumably in the pocket of the accused and not as if he

had brought that weapon for the act which was committed by him.

28. It cannot be laid down as a rule of universal law that

whenever death occurs, Section 302 IPC is attracted. Each case

would depend upon its own facts, the weapon used the size of it,

the force with which the blow was given as also the part of the body

where it was given. In this case what has been elicited in the

testimony of the witnesses is that the initial dispute had arisen over

the placement of the cot, which was also not between the accused

and the deceased; arguments had first started between Kamta

Prasad and Lakhan; accused Gore Lal had also reached the spot;

without premeditation, with his pocket knife, he attacked Lakhan

twice on his chest which had resulted in his death. It was a sudden

quarrel without premeditation.

29. In Krishna Tiwary and Anr. vs. State of Bihar AIR 2001

SC 2410 where the accused inflicted knife blows in the heat of

passion without any premeditation and without any intention that

he would cause that injury, his case was covered within Exception 4

to Section 300 IPC and he was convicted by the Supreme Court

under Section 304 Part I IPC.

30. In our view, the offence committed by the accused

would fall under Section 304 Part I of the IPC and not the offence

punishable under Section 302 IPC.

31. Accused is convicted for the offence punishable under

Section 304 Part I IPC. He is sentenced to under rigorous

imprisonment for ten years and to pay a fine of Rs.2000/-; in default

of payment of fine, rigorous imprisonment for one year. Benefit of

Section 428 Cr.P.C. shall be extended to the appellant. Appeal is

allowed with this partial modification and is disposed of accordingly.

Accused is reported to be on bail. His bail bond and surety bonds

are cancelled. He shall surrender forthwith to suffer the remaining

sentence.

(INDERMEET KAUR) JUDGE

(PRADEEP NANDRAJOG) JUDGE August 27, 2009 rb