Ramesh Kumar . vs State (Govt. Of Nct Delhi)
2009 Latest Caselaw 340 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                          Crl. Appeal No. 344/2008

%                           Date of Order : February 02, 2009

RAMESH KUMAR                     ..... Appellant
            Through : Mr.K.K. Jha, Advocate.


                                VERSUS

STATE (GOVT. OF NCT DELHI)             .....Respondent
              Through : Mr. Pawan Sharma, APP


CORAM :-
 HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
 HON'BLE MS. JUSTICE ARUNA SURESH

      (1) Whether reporters of local paper may be
          allowed to see the judgment?

      (2) To be referred to the reporter or not?

      (3) Whether the judgment should be reported
          in the Digest ?


PRADEEP NANDRAJOG, J. (Oral)

1. Heard learned counsel for the parties.

2. Police surfaced on the scene when on 1.7.2006 at

about 9.30 P.M. a telephonic information was given at number

100 informing that a stabbing incident had taken place in a

street at Khajuri Khas. The information was recorded at Police

Station Khajuri Khas. SI Rajesh Dogra PW-21 and Insp.

B.P.Sharma PW-22, accompanied by a constable proceeded to

the spot and met Shashi PW-1 who happens to be the wife of

the appellant and sister of the deceased Chander Prakash.

Her statement Ex.PW-22/A was recorded by Insp. B.P.

Sharma.

3. As per the statement she disclosed to the police

that she was a resident of house No.E-2, Gali No.16, Bijli Ghar,

Sonia Vihar, Delhi and her husband used to drink liquor in the

house of one Hari Ram, which was objected to by her. Due to

this, her husband used to be annoyed with her. That at 9.30

P.M. her husband was sitting outside the house of Hari Ram.

When she went to call him he got angry and on returning to

the house started quarreling with her. He said that she had

insulted him in front of neighbours and started beating her.

He picked up a knife and stabbed her in her hand. She

immediately went to the house of her mother Brijwati PW-5

and brother Chander Prakash @ Dabboo who lived nearby.

That her brother and her mother came to the house with her.

Her husband attacked her brother Chander Prakash and

injured him. Bhagwan Shah PW-6, and other people gathered

at the spot. After inflicting injuries on her brother her

husband fled and that her brother was taken to the hospital.

4. Inspector B.P.Sharma made an endorsement,

Ex.PW-22/B, beneath the statement and forwarded the same

to the Police Station for registration of a FIR.

5. Since Shashi was found with an injury on her hand

she was taken to the hospital where she was examined by Dr.

P. Ram PW-20, who recorded the MLC Ex.PW-20/A to the

effect that Shashi had a superficial incised wound over the

left forearm. While recording the history of the injury he

recorded "Alleged H/O Assault".

6. At the hospital, namely Trauma Centre, Majnu Ka

Tila, where Chander Prakash was removed Inspector

B.P.Sharma learnt that Chander Prakash had been declared

dead when brought to the hospital. Dr. G.C. Prabhat PW-18,

had recorded the MLC of the deceased Ex.PW-18/A. It was

noted on the MLC that Chander Prakash had been brought to

the hospital by Bhagwan Shah. History of the injuries was

noted as "Alleged H/O stabbed by his relative as told by B/by

No.2".

7. The doctor removed the clothes of the deceased

and handed over the same to Insp. B.P. Sharma who seized

the same vide seizure memo Ex.PW-3/A and affixed the seal

of 'BPS' on the same.

8. The dead body was sent for post-mortem which

was conducted by Dr. Arvind PW-19 who recorded the result

of the post-mortem in the post-mortem report Ex.PW-19/B as

under:-

"(1) Stab wound of size 2.8 cm x 0.3 cm present over the right lower chest, wound was 7 cm right to mid line and 5.5 cm below to right nipple. Wound was vertically placed, upper edge of wound was acute. The direction of the wound was backward and medial. Wound entered the chest cavity after cutting fifth rib and fourth inter costal muscle at mid clavicular line, making a nic on lower margin of upper lobe of right lung and then entered the abdominal cavity after cutting diaphragm into the right lobe of liver. Right chest cavicty and abdominal cavity was containing blood and blood clot. Total depth of the wound was 11 cm.

(2) Incised would of size 1.2 cm x .3 cm x .5 cm present over left temple region 1 cm lateral to outer border of left eye brow placed obliquely, tailing was present for a distance of .5 cm on lower lateral edge of wound.

Injury No. 1 was opined to be sufficient in the

ordinary course of nature to cause death.

9. Returning to the spot, control earth, blood-stained

earth and grass stained with blood were lifted and sealed by

Insp. B.P. Sharma; seizure whereof was noted in the seizure

memos Ex.PW-21/A and Ex.PW-21/B.

10. A rough site plan was prepared at the pointing out

of Shashi. The spot where the deceased was attacked, was

pointed out by Shashi as recorded in the pointing out memo

Ex.PW-21/C. Ct. Sanjeev PW-9 was summoned who took five

photographs of the site of the incident Ex.PW-9/A-1 to Ex.PW-

9/A-5; negatives whereof are Ex.PW-9/B-1 to Ex.PW-9/B-5.

11. Site plan to scale was thereafter prepared by PW-

16 SI Mukesh Jain. The same is Ex.PW-16/A.

12. The appellant was apprehended as per arrest

memo Ex.PW-6/D and at the time of his arrest a shirt worn by

him and having blood stains thereon was seized vide seizure

memo Ex.PW-6/C. The seal of 'BPS' was affixed on the

pullandah prepared.

13. We eschew reference to the alleged recovery of a

knife at the instance of the appellant for the reason there is

conflicting evidence of the circumstance and the time when

the same was seized. Indeed, the learned trial Judge has not

used the same as a piece of incriminating evidence against

the appellant.

14. But we hasten to note that the learned trial Judge

has held, in our opinion correctly, that merely because the

weapon of offence is not recovered does not mean that the

accused has to be let off on said ground.

15. The blood stained clothes of the deceased seized

at the hospital; the blood stained earth and blood stained

grass seized at the site of occurrence; the shirt worn by the

appellant and seized at the time of his arrest were all sent for

forensic examination to Forensic Science Laboratory (FSL) at

Madhuban Chowk. The report of the FSL, Ex.PW-22/F, was

obtained, as per which the clothes worn by the deceased and

handed over to the police by the doctor as also the blood

stained grass and earth control seized from the site of

occurrence and additionally the shirt worn by the appellant

were opined as having blood of human origin. Save and

except blood stains on grass and earth which gave no

reaction, all other articles were opined to be having blood

group 'A'.

16. During investigation statement of Brijwati PW-5 the

mother of the deceased as also Bhagwan Shah PW-6 were

recorded. As per the said statements the appellant was

named by them as the assailant.

17. Armed with the aforesaid material i.e. seizures

effected, and as noted above, the report of the FSL, the MLC

and the post-mortem report of the deceased and hoping that

the witnesses who had disclosed to the police what had

happened would support the case of the prosecution, a

charge sheet was filed charging the appellant of having

murdered his brother-in-law.

18. PW-1 Shashi, the wife of the appellant and the

sister of the deceased did not support the case of the

prosecution. She deposed that on 1.7.2006 she was returning

after attending call of nature and heard commotion. She

hurried to reach her house and in the process fell over a stone

and sustained injuries on her hand. She deposed that she

became perplexed and when she reached her house she saw

that the police had reached; lot of people had gathered and

thereafter the police took away her husband.

19. Relevant would it be to note that when she was

cross examined by the learned Public Prosecutor she stated "I

had pointed out the place to the police from where Dabboo

was lifted". Dabboo is the pet name of Chander Prakash.

20. Brijwati, mother of the deceased and mother-in-

law of the appellant was examined as PW-5. She fully

supported the case of the prosecution and deposed that her

daughter Shashi had come to their house complaining that

the accused had beaten her and that her son Chander

Prakash accompanied by herself i.e. Brijwati and Shashi went

to the house of the accused. Accused stabbed Chander

Prakash with a knife. Her son fell down. He was stabbed

again. She raised cries. People gathered. The appellant fled.

Police came. Her son was removed to the hospital where he

died. She stated that the police recorded the statement of

her daughter at the spot.

21. She was cross examined. Indeed, nothing has

been brought out in the cross examination to discredit the

witnesses. None has been shown to us at the hearing today.

22. Bhagwan Shah PW-6 also did not support the case

of the prosecution fully. He stated that it was dark when he

reached the spot and saw Chander Prakash lying in the street.

He deposed that he summoned the PCR van and took

Chander Prakash to the Trauma Centre in the ambulance.

But, he supported the prosecution with reference to the

appellant being arrested on information provided by him. He

supported the prosecution with reference to the seizure of the

bloodstained shirt which the appellant was wearing as

recorded in the seizure memo Ex.PW-6/C. He affirmed that

the mother and the sister of the deceased were present at the

spot when he reached the spot.

23. On being cross-examined by counsel for the

appellant he stated that it was correct that at the time of the

incident there was darkness in the area.

24. Dr. G.C. Prabhat PW-18 deposed that Chander

Prakash was brought to the hospital and that he correctly

recorded what he saw and was told in the MLC Ex.PW-18/A.

25. We note that the witness was cross examined and

no questions were put to him by the counsel for the accused

with reference to how he had recorded the fact that injured

was stabbed by a relative as told to him by 'brought by No.2'.

We note that in the MLC the name of the person recorded as

"Brought by 2 is Bhagwan Shah".

26. Dr. P.Ram PW-20 who had treated Shashi when

she was brought to the hospital proved the MLC of Shashi

Ex.PW-20/A. We note that Dr. P.Ram was not cross examined.

27. We eschew reference to the testimony of the

police witnesses who were associated with the investigation

for the reason no submissions have been made pertaining to

the seizure effected.

28. Learned trial Judge has believed the testimony of

PW-5 and noting the post-mortem report has held that the

evidence establishes the intention of the appellant to murder

his brother-in-law. The result is the conviction of the appellant

for the offence of murdering his brother-in-law.

29. At the hearing of the appeal learned counsel for

the appellant has made the following submissions:-

(a) PW-6 categorically stated that it was dark as

there was no electricity supply. The time was 9.30 P.M. Thus,

PW-5 could not have seen what she allegedly deposed.

(b) That PW-5 was an interested witness as she

was the mother of the deceased and therefore her testimony

has to be ignored.

(c) The third submission made by counsel is that

there is no reason to disbelieve PW-1 who was the natural

witness as also PW-6 and that their testimonies show that the

assailant was an unknown person.

30. The submissions made by learned counsel for the

appellant have hardly impressed us.

31. PW-5, the mother of the deceased happens to be

the mother-in-law of the appellant. If she did not know who

the assailant was, surely she would not have implicated her

son-in-law.

32. A related witness is not an interested witness. An

interested witness is a witness who has a motive to falsely

implicate the accused persons. Enmity of said witness with

the accused has to be shown. Indeed, in the instant case

none has been shown to us.

33. We note that Shashi has not supported the case of

the prosecution but has admitted one fact which runs

contrary to her earlier deposition. As noted above, she has

admitted that she pointed out to the police the place where

her brother Dabboo was lifted before he was transported to

the hospital. If she had seen nothing, wherefrom could she

point out the place where her brother fell after he was

stabbed and was removed to the hospital? This admission of

Shashi shows that she had indeed assisted the police when

the site plan was prepared because the investigating officer

has clearly deposed that he prepared the site plan with the

assistance of Shashi.

34. We note that PW-6 has corroborated Shashi's

presence at the spot as also the presence of Brijwati PW-5, in

that, he categorically stated that both were present at the

spot when he had reached. We note that this statement of

PW-6 has gone unchallenged. Thus, presence of PW-5 at the

spot stands corroborated.

35. We note that when she appeared in the Court

Shashi may have disclaimed the circumstance under which

she received injuries on her forearm, but it has to be further

noted that when Dr.P.Ram PW-20 deposed, no question has

been put to him; no suggestion has been made to him, with

respect to the circumstance of his having written on the MLC

of Shashi that the injury was a result of assault. The MLC

Ex.PW-20/A proves the fact that Shashi had told the doctor

that she had sustained injuries as a result of being assaulted.

36. This corroborates PW-5 with respect to what had

happened, requiring PW-5 to reach the house of the appellant

along with her son Chander Prakash. Indeed, if Shashi was

not injured by her husband, she would not have gone to the

house of her mother seeking help and as a result thereof, her

mother Brijwati and brother Chander Prakash would not have

visited her house.

37. The appellant has not explained as to wherefrom

blood came on his shirt. The appellant has rendered no

explanation on the fact that the blood of the same group was

found on his shirt as was found on the clothes of the

deceased.

38. We note that from the blood stained earth and the

grass lifted from the site, human blood was detected.

39. We are satisfied that the learned trial Judge has

correctly appreciated the evidence and has returned a correct

finding, namely, that the deceased was assaulted by the

appellant.

40. On the issue whether it is a case of murder or

culpable homicide not amounting to murder, suffice would it

be to say that no submission has been made on this issue at

the hearing of the appeal. Indeed, the injury caused on the

deceased as per the post-mortem report, contents whereof

have been noted by us in para 8 above show that the knife

blow was directed at a vital part of the body. The knife

entered the chest cavity after cutting the fourth and fifth rib

costal muscle at mid-clavicular line. It pierced through the

upper lobe of the right lung and cutting through the

abdominal cavity pierced further ahead, cutting the

diaphragm and then the right lobe of the liver. The knife had

caused a wound 11 cms deep. This shows the force with

which the blow was inflicted. Indeed, from the act of the

appellant an intention to cause the death of the deceased can

be reasonably inferred. In any case, the intention to cause a

dangerous injury can be gathered. The nature of the injury

itself shows that it was so imminently dangerous that death

would result in all probability.

41. The appeal is dismissed.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

February 02, 2009 vk