Surinder Kumar vs The State (Govt. Of Delhi)
2009 Latest Caselaw 5198 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment reserved on: September 02, 2009
                             Judgment delivered on : December 15, 2009


+      CRIMINAL APPEAL NO.271/1994

       SURINDER KUMAR                              ..... APPELLANT
                              Through:   Ms. Seema Gulati, Advocate

                    Versus

       THE STATE(GOVT. OF DELHI)                   ..... RESPONDENT
                        Through:         Mr. Pawan Sharma, 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?

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?


AJIT BHARIHOKE, J.

1. The appellant, having been convicted in Sessions Case No.92/94

FIR No.90/93 for the offences punishable under Section 302 IPC and

Section 27 of the Arms Act and sentenced to undergo imprisonment for

life for the offence under Section 302 IPC and to pay fine of Rs.1000/-,

in default of payment of fine to undergo SI for a period of one year and

for offence under Section 27 of the Arms Act to undergo RI for the

period of three years with fine of Rs.500/-, in default of payment of fine

to undergo SI for three months, has preferred the instant appeal.

2. Briefly stated, case of the prosecution is that on 07.04.1993 at

about 3:52 PM, wireless operator visited the Police Station Sadar, Delhi

and informed the Duty Officer that Head Constable Mohd. Jamil

No.92/N has informed that a knife stabbing incident had taken place at

Nawab Road after some exchange of hot words. Information was

recorded as DD No.12A and copy of the DD was sent to SI Ram Khilari,

through Constable Dharamvir Singh for necessary action.

3. SI Ram Khilari, PW15 along with Constable Dharamvir Singh

reached at Nawab Road. He met PW6 Om Parkash S/o Jai Ram and

recorded his statement. PW6, Om Parkash stated to the Investigating

Officer that at the relevant time, he was sitting on a cot on the

pavement of Nawab Road along with Chain Sukh S/o Chaman Lal and

some other persons. At about 3:30 PM, he saw appellant Surinder

Kumar @ Bittoo and the deceased Hari Singh @ Kallu quarrelling with

each other. Appellant Surinder, in the process, stabbed Hari Singh @

Kallu with a knife and thereafter ran away after leaving the knife at the

spot. In the meantime, Lakhpat, brother of the appellant Surinder,

picked up the knife from the spot and ran away. Hari Singh @ Kallu

was taken to the hospital in a three-wheeler scooter. On the basis of

his aforesaid statement Ex.PW6/A, formal FIR under Sections 307/201

IPC was registered and the investigation was handed over to SI Ram

Khilari.

4. At about 5:00 PM, Constable Netar Singh who was on duty at RML

Hospital conveyed an information to the Police Station that Hari Singh

was admitted in hospital by his wife and that he was declared dead.

This information was recorded as DD No.15A at the Police Station and

copy of said DD report was also sent to SI Ram Khilari, through

Constable Surinder Kumar. Information was also conveyed to the

Inspector who was on patrol duty in the area. The Inspector along with

his staff reached at the hospital where he met SI Ram Khilari and

obtained the MLC of the deceased. The dead body was sent to the

mortuary. Subsequent investigation was taken over by Inspector M.S.

Chikara. By that time, SI Ram Khilari had already collected a packet of

clothes of the deceased from the Doctor concerned. Inspector M.S.

Chikara conducted the inquest proceedings and he sent the dead body

for post mortem with his request Ex.PW19/A and after post mortem,

the dead body was handed over to the relatives of the deceased. The

Inspector recorded the statements of the witnesses. He went to the

spot and prepared site plan of the scene of occurrence. During the

course of the investigation, it was revealed that in the morning of

07.04.93, deceased Hari Singh @ Kallu had a quarrel with Lakhpat, co-

accused because Lakhpat had made some remarks against the fidelity

of wife of Daya Chand. When the other co-accused Shiv Lal came to

know about the beatings suffered by Lakhpat at the hands of Hari

Singh @ Kallu, he rebuked him and instigated him to kill Hari Singh and

he sent Lakhpat and his wife Jagotri to call the appellant Surinder from

9/15, M.C.D. Quarters, Rameshwar Nagar, near Adarsh Nagar.

Appellant Surinder along with him went to Nawab Road where he found

the deceased Hari Singh @ Kallu. An altercation took place between

them and Surinder, in the process, took out a knife which he had

carried from his house and stabbed Hari Singh thrice. Hari Singh was

taken to RML Hospital by his wife Kaushalya Devi.

5. On completion of formalities of the investigation, a charge sheet

was filed against the appellant as well as Lakhpat and Shiv Lal.

6. Appellant was charged for offences punishable under Section 302

read with 34 IPC and Section 27 of the Arms Act, whereas Lakhpat was

charged for the offence punishable under Section 302 read with 34 IPC

and Shiv Lal was charged for the offence punishable under Section 302

IPC read with 109 IPC. All of them pleaded innocence and claimed to

be tried.

7. The prosecution case rests mainly on the eye witness account of

the ocular witnesses. The prosecution examined six purported eye

witnesses, namely, PW4 Khem Chand, PW6 Om Parkash (complainant),

PW7 Manohar Lal, PW8 Mahesh Kumar, PW9 Chain Sukh and PW12

Kaushalya Devi, wife of the deceased. Out of those, PW4 Khem Chand,

PW6 Om Parkash (complainant) and PW9 Chain Sukh turned hostile

and did not support the case of the prosecution at all. PW7 Manohar

Lal is also a partly hostile witness. He has, however, supported the

case of the prosecution on the aspect of the knife wound inflicted by

the appellant to the deceased by stating that the appellant Surinder

stabbed the deceased Hari Singh @ Kallu in his presence. He denied

having any knowledge as to whether the appellant left the knife at the

spot or took away the knife with him.

8. PW12 Kaushalya Devi and PW8 Mahesh Kumar have supported

the prosecution case. PW12 Kaushalya Devi in her evidence stated

that on 07.04.93 at about 3:30 pm, she was sitting on the "Chabutara"

at Nawab Road when Daya Chand and deceased came with some iron

pieces. Daya Chand went inside with the goods brought by them and,

in the meanwhile, appellant Surinder came and caller her husband.

They started talking and the appellant suddenly struck his head against

the head of the deceased. Thereafter, the appellant locked the neck of

the deceased in his armpit and inflicted two or three knife blows on his

chest. She ran towards her husband and saved him, but the appellant

ran away after inflicting the injuries. She attended to her husband. In

the meanwhile, PW8 Mahesh Kumar reached there, who hired a

scooter, and with the help of Mahesh she managed to put her husband

in the scooter and took him to Ram Manohar Lohia Hospital. The

witness identified the blood-stained shirt and "baniyan" (vest) of her

husband Exhibits P-2 and P-3, which he was wearing at the time of

incident. She also identified his pant and underwear Exhibits P-4 and

P-5. Witness stated that her clothes were also stained with blood of

her husband, but those were not seized by the police. PW8 Mahesh

Kumar also deposed in an almost similar manner.

9. The defence taken by the appellant in his statement under

Section 313 Cr.P.C. was complete denial. According to him, he was

falsely implicated by the relatives of the deceased only on the basis of

suspicion. He did not produce any witness in his defence.

10. The learned Additional Sessions Judge did not find sufficient

evidence to bring home the guilt of co-accused Lakhpat and Shiv Lal

and acquitted them of charges levelled against them. The learned Trial

Court, however, relying upon the eye witness account given by PW12

Kaushalya Devi and PW8 Mahesh Kumar, found the appellant guilty of

causing death of the deceased Hari Singh by stabbing him with a knife

and convicted him under Section 302 IPC as also Section 27 of the

Arms Act and sentenced him accordingly in terms of the order on

sentence dated 31.10.1994.

11. Learned counsel for the appellant has submitted that the

prosecution case is based upon the eye witness account given by the

ocular witnesses. Six purported eye witnesses were examined by the

prosecution to bring home the guilt of the accused, out of them four

namely, PW4 Khem Chand, PW6 Om Parkash (complainant), PW7

Manohar Lal and PW9 Chain Sukh have not supported the case of the

prosecution. Only eye witnesses who have supported the prosecution

case are PW8 Mahesh Kumar and PW12 Kaushalya Devi and their

testimonies also do not inspire confidence because of following

reasons.

12. It is contended that PW8 Mahesh Kumar is not a reliable witness

and his presence at the spot of occurrence is doubtful, because from

the record it is apparent that his statement under Section 161 Cr.P.C.

was recorded by the Investigating Officer on 09.04.1993 though the

incident took place on 07.04.1993. Learned counsel has pointed out

that PW8 has admitted in his cross-examination that on the day

following the day of incident, he had himself gone to the police station

and he also stated that he had gone to collect the dead body of the

deceased from the mortuary, but his statement was not recorded by

the police. There is no explanation forthcoming on the record as to

why the statement of this witness was not recorded earlier despite the

fact that he met the police twice on 08.04.1993 and thus it is urged

that a possibility cannot be ruled out that PW8 Mahesh Kumar was not

an eye witness and he has been subsequently introduced as a witness

to falsely implicate the appellant.

13. We find no merit in this contention. The recording of the

statement of the witness during investigation is in the hands of

Investigating Officer and if he was not prompt in recording the

statement under Section 161 Cr.P.C., this, by itself, cannot be taken as

a reason to suspect the testimony of the witness, which otherwise

appears to be reliable. We may note that FIR Ex.PW 2/B pertaining to

this case was registered promptly on 07.04.93 at 4:25 pm at the Police

Station Sadar Bazar, wherein the appellant was named as culprit. This

FIR was registered on the basis of statement of PW7 Manohar Lal, who

claimed to have seen the occurrence, therefore, there was neither any

necessity nor any occasion for the Investigating Officer to introduce

PW8 Mahesh Kumar as a witness in the case unless he actually was the

witness to the occurrence.

14. Learned counsel for the appellant has further submitted that

even the presence of PW12 Kaushalya Devi at the time of occurrence is

highly doubtful because, on the one hand, she claims that she saw the

occurrence and took her husband to the hospital and, on the other

hand, as per the prosecution case her statement Ex.PW12/DA under

Section 161 Cr.P.C. was recorded after a lapse of nine days on

16.04.1993, for which delay there is no explanation on record. He has

also submitted that according to PW12 Kaushalya Devi, her clothes

were stained with the blood of her husband, but those clothes have not

been seized by the police, which circumstance also raises a strong

doubt that she actually was not present at the time of occurrence and

her version, to the effect that she saw the incident and after the

incident she took her husband to the hospital, is not reliable.

15. We are not persuaded by the argument advanced by the

appellant. Perusal of the MLC of the deceased Ex.PW1/A reveals that

the deceased was brought to Ram Manohar Lohia Hospital on

07.04.1993 at around 3:45 pm by Kaushalya Devi. This by itself gives

an assurance that Kaushalya Devi was present at the time of

occurrence. So far as the delay in recording of statement of Kaushalya

Devi under Section 161 Cr.P.C. by the Investigating Officer is

concerned, we are of the view that she cannot be faulted for the same

and it cannot be taken as a reason to discard her otherwise reliable

testimony.

16. Learned counsel for the appellant has further submitted that PW8

Mahesh Kumar and PW12 Kaushalya Devi have made improvements in

their testimony in court and their evidence in the court is at variance

with their statements recorded under Section 161 Cr.P.C. Learned

counsel for the appellant has pointed out that both these witnesses in

their statements under Section 161 Cr.P.C. had referred to the earlier

incident involving the deceased and co-accused Lakhpat, but they did

not say even a single word about that incident and their testimony is

confined only to the period of the incident of stabbing, which took

place on 07.04.1993 at 3:30 pm. He has further pointed out that these

witnesses in their statements under Section 161 Cr.P.C. have only

stated about the appellant inflicting knife wounds to the deceased,

whereas in their testimony in court, they have improved upon that

version by stating that the appellant hit the deceased on the head with

his head and thereafter he locked the neck of the deceased in his

armpit and stabbed him with the knife two or three times on the chest,

which reflected upon the interestedness of the witnesses and makes

their testimony doubtful. The improvements/variations pointed out by

learned counsel for the appellant in the evidence of PW8 Mahesh

Kumar and PW12 Kaushalya Devi vis-a-vis their statements recorded

under Section 161 Cr.P.C., in our considered view, are inconsequential

and are not so material so as to cast a doubt on the version of the

witnesses, which is consistent and is also corroborated by the medical

evidence. While appreciating the evidence, the court is not required to

do word splitting. It is required to carefully go through the evidence

and read it as a whole and on such reading if the evidence appears to

be consistent and trustworthy, then minor infirmities here and there

should not come in the way of placing reliance upon the evidence.

17. We may note that even the testimony of hostile witnesses PW6

Om Parkash and PW7 Manohar Lal also tend to corroborate the version

of PW8 Mahesh Kumar and PW12 Kaushalya Devi. PW6 Om Parkash in

his examination-in-chief has stated that on 07.04.1993, he was sitting

at a cot on Nawab Road in front of his house along with some persons.

Chain Sukh (PW9) was also there. At about 3:30 pm, he heard the

noise of a quarrel, which was between Kallu @ Hari Singh (deceased)

and Surinder @ Bittoo (appellant) and he heard that Surinder accused

had stabbed the deceased Hari Singh and ran away. The aforesaid

version of PW6 Om Parkash has not been challenged by the appellant

in the cross-examination. As a matter of fact, no cross-examination on

the said aspect was done. Said version of PW6 Om Parkash is relevant

under Section 6 of the Evidence Act, in particular illustration (a), as it

speaks about the reaction of the bystanders at the spot of occurrence

immediately after the occurrence, which reads thus:

"Section 6. Relevancy of facts forming part of same transaction.- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

Illustrations

(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact."

18. Similarly, PW7 Manohar Lal, though he is hostile on the aspect of

the incident which took place earlier in the morning and the recovery

of knife at the instance of accused Lakhpat, has supported the

prosecution version regarding the main incident by stating that on

07.04.1993, appellant Surinder stabbed the deceased Hari Singh @

Kallu in his presence and thereafter Mohalla people and wife of the

deceased took him to the hospital. He stated that he also

accompanied them to the hospital. Said version does corroborate the

version of PW8 Mahesh Kumar and PW12 Kaushalya Devi. Therefore,

we find no reason to doubt the testimony of PW8 Mahesh Kumar and

PW12 Kaushalya Devi.

19. The next submission on behalf of the appellant is that no reliance

should be placed upon the evidence of PW8 Mahesh Kumar and PW12

Kaushalya Devi as it is inconsistent with the scientific evidence.

Learned counsel for the appellant has submitted that as per PW8

Mahesh Kumar and PW12 Kaushalya Devi, the appellant inflicted

two/three stab wounds with the knife on the person of the deceased,

which version is belied by the post mortem report Ex.PW11/A, wherein

there is mention of five injuries found on the body of the deceased.

20. On perusal of the post mortem report Ex.PW11/A, it transpires

that there were following five injuries found by Dr. L.T. Ramani, PW11

on the body of the deceased:

"1. An incised wound 2cm. X 1 cm. X ? vertically placed on the left side of chest wall in the anterior axillary line, 13 cm. below the arm pit. The upper end of the injury was acutely cut.

2. An incised wound 1.2 cms. X 0.5 cm. X ? vertically placed on the left lateral chest wall in posterior axillary line, 6 cms. behind injury No. 1, upper end of the injury was acutely cut.

3. An incised stab wound 3.5. cms. X 2 cms. X ? placed vertically on the lower part left side chest wall in mid-axillary line. Upper end of the wound was more acutely cut.

4. A triangular abrasion 0.5 cms. X 0.3 Cms. on the right side of front of chest 6 cms. medial to right nipple.

5. Small abrasion 0.5 cms. X 0.5 cms. on the right elbow."

21. It can be seen that out of five injuries found on the person of the

deceased, three injuries No.1 to 3 are incised wounds and remaining

two injuries No.4 and 5 are abrasions. Thus, we find no conflict in the

testimony of the witnesses to the effect that the appellant gave two or

three knife wounds to the deceased vis-a-vis the post mortem report

Ex.PW11/A, which also speaks of only three incised wounds, which

injuries, as per Dr. L.T. Ramani, could have been caused by the knife

Ex.P-1.

22. It is also submitted on behalf of the appellant that there is a

conflict between the ocular testimony of PW8 Mahesh Kumar and PW12

Kaushalya Devi and the CFSL report Ex.PW19/G inasmuch as that as

per the witnesses, the appellant inflicted only two/three knife wounds

on the person of the deceased, which implies that there should have

been maximum three cuts corresponding to the stabs inflicted on the

shirt of the deceased, whereas as per the CFSL report Ex.PW19/G there

were five cuts on the shirt which casts a strong doubt on the credibility

of the witnesses.

23. We do not find any substance in the above contention. It is seen

from the CFSL report Ex.PW19/G that besides the shirt, the vest of the

deceased was also sent for CFSL examination and there were only

three cuts on the vest, which is consistent with the ocular version given

by Mahesh Kumar(PW8) and Kaushalya Devi (PW12). We may note

that the shirt is generally a loose fitted apparel. Therefore, a possibility

cannot be ruled out that one or more knife blows might have pierced

through some loose fold of the shirt worn by the deceased, resulting in

more than one cut on the shirt caused by a single knife stab. This

explains the presence of five cuts on the shirt of the deceased. Thus,

we do not find any conflict in the testimony of the eye witnesses vis-a-

vis the CFSL report. As a matter of fact, the CFSL report corroborates

the version of the above referred two witnesses.

24. Lastly, it was argued on behalf of the appellant that even if for

the sake of argument, the prosecution case is taken to be true, then

also there was no justification for conviction of the appellant under

Section 302 IPC because as per the evidence on record, the stabbing

was preceded by an altercation between the appellant and the

deceased. Therefore, at best it is a case of an act committed in the

heat of moment without premeditation in a sudden fight upon a sudden

quarrel, as such, the learned Trial Court ought to have extended the

benefit of Exception 4 to Section 300 IPC to the appellant and the

appellant should have been convicted under Section 304 IPC for the

offence of culpable homicide not amounting to murder.

25. There is no merit in the argument. As per the post mortem

report Ex.PW11/A, three knife wounds were inflicted on the left side of

the chest of the deceased, which is a vital part of the body. PW11 Dr.

L.T. Ramani, who conducted the post mortem, has opined that all of

those three injuries were sufficient to cause death individually as well

as collectively. From the medical evidence, it is established that the

appellant had stabbed the deceased on the vital part of his body not

only once but thrice. From this, it can be safely inferred that there was

an intention on the part of the appellant to cause death of the

deceased or to inflict such injury which, in the ordinary course of

nature, was sufficient to cause death. PW8 Mahesh Kumar and PW12

Kaushalya Devi have categorically stated that the appellant came

armed with a knife and stabbed the deceased three times which, by

itself, is sufficient to draw an inference that the appellant had come to

the spot of occurrence with a clear intention to cause his death and, by

no stretch of imagination, it can be said that the act of the appellant

was committed without any premeditation in the heat of passion as a

consequence of a sudden fight. Therefore, Exception 4 to Section 300

is not attracted in this case and, in our view, the learned Trial Court

was right in convicting the appellant for the offence of murder

punishable under Section 302 IPC.

26. The result of above discussion is that we find no infirmity in the

impugned judgment. The learned Trial Court has rightly relied upon the

testimony of PW8 Mahesh Kumar and PW12 Kaushalya Devi, which is

consistent and has a ring of credibility around it. Otherwise also, there

is nothing on record to show as to why the above witnesses would

depose falsely against the appellant and allow the real culprit to go

scot free. Thus, we conclude that the learned Trial Court has rightly

convicted the appellant under Section 302 IPC.

27. The appeal is devoid of merit and is accordingly dismissed.

28. Appellant is on bail. His bail bond and surety bond stand

cancelled. Appellant be taken into custody to undergo the remaining

sentence.

AJIT BHARIHOKE, J.

DECEMBER 15 , 2009                       SANJAY KISHAN KAUL, J.
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