Daulat vs State
2009 Latest Caselaw 492 Del

i.14
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CRL.A. 453/2006

%                               Date of Order : February 11, 2009


      DAULAT                                    ..... Appellant
                     Through:   Ms. Latika Chaudhary, Advocate for
                                Ms. Poornima Sethi, Advocate

                                versus

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

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

      1. Whether reporters of local papers may be allowed
         to see the judgment?

      2. To be referred to the Reporter or not?

      3. Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J. (Oral)

1. Heard learned counsel for the parties.

2. Whereas co-accused Sonu, against whom the

prosecution alleged the role of exhorting the appellant who

thereupon inflicted two stab wounds on the person of the

deceased Ram Singh, has been acquitted on account of

insufficient evidence to prove the alleged exhortation, vide

impugned judgment dated 18.11.2005, the appellant has been

convicted for the offence of murdering Ram Singh. The

appellant has been directed to undergo imprisonment for life

and to pay a fine of Rs.5,000/-.

3. The case of the prosecution is that in the intervening

night of 25/26.11.2003 Ram Singh, a resident of Block B-3,

Raghubir Nagar was outside his house No.925. He was in the

company of his wife Pushpa Devi. They were unloading goods

from a cart. The appellant and Sonu were passing by and told

them to get out of the site. Without any provocation, Sonu

instigated Daulat saying "ye sala dada banta hai, aaj iska kaam

tamam hi kar dete hain", upon which, appellant took out a knife

from his pant and stabbed Ram Singh twice in the abdomen.

4. Somebody rang up the police and informed about the

incident which was recorded at PS Rajouri Garden vide DD

No.54, Ex.PW-4/A, by Const.Raghunath Prasad PW-4. ASI Om

Prakash PW-14, accompanied by Const.Satish PW-6, left for the

spot and on learning that the injured had been removed to DDU

Hospital went to the hospital. They found Ram Singh admitted

in the hospital and in an injured condition. Pushpa Devi PW-11,

the wife of Ram Singh who was present in the hospital made a

statement Ex.PW-11/A, based whereon, the FIR was registered

at 2:20 AM on 26.1.2003 by HC Jagdish Prasad PW-1. It may be

noted that in her statement, Pushpa Devi told the police that on

the exhortation of Sonu, the appellant had stabbed her husband.

5. It may be noted that when ASI Om Prakash and

Const.Satish reached the spot, the appellant and the co-accused

were already apprehended and were being held on to by Prabhu

Dayal PW-12 and Yaad Ram PW-13. The police formally arrested

both from the spot.

6. The weapon of offence, a knife, was seized at the

spot. We note that there is a slight diversion in the testimony of

the witnesses, whether the knife was recovered from a drain

next to the spot where Ram Singh was injured or it was

recovered from the possession of the appellant.

7. We shall be dealing with this aspect a little later.

8. After the FIR was registered, the investigation at the

spot was completed by calling a photographer who took

photographs of the site. Control earth, earth stained with blood

and the knife recovered were kept inside a parcel and the same

were sealed. The shirt which was worn by the appellant was

seized vide seizure memo Ex.PW-6/A, for the reason ASI Om

Prakash and Const.Satish Kumar saw that the same was stained

with blood.

9. At the hospital, injured Ram Singh was examined by

Dr.Romit Gupta PW-7, who recorded the MLC Ex.PW-7/A, noting

thereon, that the injured had a stab injury on the right abdomen

and another stab injury on the left abdomen. The patient was

referred for surgery.

10. Ram Singh was given medical treatment in the form

of a surgical intervention for the reason, the internal wounds

had to be sutured.

11. Ram Singh died on 30.11.2003. The body was sent

for post-mortem, where on 2.12.2003, Dr.B.N.Mishra PW-19,

conducted the post-mortem and gave his report Ex.PW-18/C, in

which he recorded that there were four external injuries, the

first two were surgical wounds made at the time of laprotomy.

Injuries 3 and 4; one a spindle shape stab wound piercing 4.5

cms into the body having entry on the left side of anterior

abdomen had reached the colon and the second stab injury was

found to be muscle deep i.e. having a depth of 1.3 cms. and

had remained within the muscle tissue.

12. The cause of death opined in the post-mortem report

Ex.PW-18/C is as under:-

"1. The cause of death was due to septicemic shock consequent upon development of acute peritonitis followed by piercing (perforation) of transverse colon by injury No.3.

2. The injury No.3 and 4 was inflicted by sharp edged weapon.

3. The exhibited weapon (knife) liable to inflict injury No.3 and 4."

13. It is significant to note that in the post-mortem report,

the doctor gave no opinion whether injury No.3 was sufficient in

the ordinary course of nature to cause death or not.

14. The blood stained clothes of the deceased as also the

blood sample on a gauze piece were handed over to the

investigating officer. The same, along with the blood stained

shirt of the appellant and the knife which was seized at the spot

as also the blood stained earth were sent for serological

examination to a serologist who gave a report on 29.1.2004,

Ex.PW-22/D, to the effect that the blood stained earth revealed

presence of human blood, group whereof could not be

determined. The knife was also opined to be stained with human

blood, group whereof could not be determined. The shirt of the

appellant as also the clothes of the deceased and the blood

sample of the deceased were opined to be human blood of group

„B‟.

15. Armed with the aforesaid material and 3 eye

witnesses, namely the wife of the deceased Pushpa Devi PW-11,

Prabhu Dayal PW-12 and Yaad Ram PW-13, the charge sheet was

filed. The appellant and the co-accused Sonu were charged for

the offence of murdering Daulat Ram. The indictment was under

Section 302/34 IPC.

16. Pushpa Devi PW-11 deposed that at 11:15/11:30 PM

on 25th of the month she and her husband were removing

peanuts from the cart and she heard noise that somebody had

stabbed her husband. She came down and saw that her

husband was having a stab injury in his abdomen. The persons

were apprehended at the spot who had stabbed her husband.

She stated that they were appellant Daulat and co-accused Sonu

who live in Raghubir Nagar. She deposed that the knife was

lying on the floor and a PCR van came. She deposed that she

reached the spot on hearing the screams of her husband that

"isne chaku maar diya". She was declared hostile. Reason why

she was declared hostile cannot be fathomed by us. She

appears to have supported the prosecution in full.

17. Be that as it may, when the learned APP cross

examined her, she stated that she did not know the reason why

her husband was stabbed. She stated that she did not herself

see as to who stabbed her husband.

18. The latter part of her deposition on being declared

hostile, runs in the teeth of her earlier deposition. But, for the

moment, we leave it at that.

19. PW-12 who gave his name as Prabhu Dayal, deposed

that he reached the place upon hearing noise of Pushpa Devi

that her husband was stabbed. He stated that he apprehended

appellant Daulat on suspicion and that learnt after 2 hours that

even Sonu had been arrested. But surprisingly he deposed that

he had witnessed the arrest of the two and that the arrest

memos Ex.PW-6/E (pertaining to Daulat) and Ex.PW-6/F

(pertaining to Sonu) bore his signatures.

20. Yaad Ram PW-13, fully supported the prosecution,

stating that on the intervening night of 25 th and 26th November

2003 at about 11:15 PM a quarrel took place amongst the

appellant Daulat and Sonu on the one hand and the deceased

Ram Singh on the other. That Daulat took out a knife from his

shoes and inflicted two blows on Ram Singh. He apprehended

Daulat and Sonu was apprehended by one Chawla, a resident of

the same locality. He stated that the accused threw the knife in

a drain when he apprehended them. Police came to the spot

and removed the injured to the hospital. The knife Ex.P-1 was

seized by the police in his presence. He was extensively cross

examined as to who was that person named Chawla to whom he

had referred to as the one who had apprehended Sonu. He

stated that the person named Chawla was a resident of the area.

21. But, we note that arrest memo of the appellant and

Sonu has been witnessed by Yaad Ram and a person whose

name has been noted as Prabhu Dayal Chawla. The address of

Prabhu Dayal Chawla is House No.926/B/III, Raghubir Nagar, the

same as was disclosed by Prabhu Dayal PW-12 when he

appeared as a witness; meaning thereby, the person whose

surname is Chawla, is none other than Prabhu Dayal PW-12.

22. Since neither Prabhu Dayal nor Yaad Ram deposed of

Sonu giving any exhortation and since the learned public

prosecutor, for unexplainable reasons got declared Pushpa Devi

hostile, the learned Trial Judge has belittled her testimony and as

a result Sonu has been acquitted. The reason is obvious. The

factum of Sonu having given exhortation which led the appellant

to inflict the injuries on Prabhu Dayal has failed.

23. Pertaining to the appellant, from the fact that the

appellant was apprehended at the spot and that PW-13 has fully

supported the case of the prosecution, coupled with the fact that

even Prabhu Dayal Chawla did not deny his having witnessed the

arrest of the appellant and having signed as a witness on the

arrest memo, coupled with the fact that he identified the knife as

the one which was recovered by the police from the spot; with

reference to the FSL report which recorded presence of human

blood of group „B‟ on the shirt of the appellant; there being no

explanation from the side of the appellant as to how blood came

on his shirt; the fact that the blood group of the deceased was

„B‟, the learned Trial Judge has held that there is sufficient

evidence to convict the appellant for having murdered Ram

Singh.

24. At the hearing of the appeal today learned counsel for

the appellant draws our attention to the fact that the wife of the

deceased, Prabhu Dayal and Yaad Ram have deposed at

variance pertaining to the recovery of the knife. Counsel further

urges that even ASI Om Prakash PW-14 and Const.Satish Kumar

PW-6 have deposed at variance, in that, some witnesses speak

of the knife being in the hand of the appellant when he was

apprehended and even when the police formally arrested him,

some speak of the knife being thrown by the appellant in the

drain next to the street and recovered therefrom.

25. The said variation in the testimony of the witnesses is

not material. With passage of time, human memory fades; that

somebody spoke of the knife being thrown and somebody spoke

of the same not being thrown, is inconsequential.

26. The fact that the appellant was apprehended at the

spot; the fact that Yaad Ram PW-13 has witnessed the incident

and has with stood the test of cross examination; the fact that

the blood group of the deceased was B and blood of same group

was found on the shirt of the appellant; the fact that the

appellant has not explained the presence of blood on his shirt,

are sufficient evidence to hold that indeed, the appellant was the

person who inflicted the stab injuries on Ram Singh.

27. But, there is a problem with respect to whether the

appellant has to be convicted for the offence punishable under

Section 302 IPC or whether the offence would be punishable

under Section 304 IPC.

28. As noted above, in the post-mortem report, the doctor

has not given any opinion whether injury No.3, which proved to

be fatal was sufficient in the ordinary course of nature to cause

death. Unfortunately, when Dr.B.N.Mishra PW-19, the Doctor

who conducted the post-mortem was examined in Court, no

opinion was sought from him whether the injury in question was

sufficient in the ordinary course of nature to cause death.

29. It has to be noted that the injury had cut through the

left lower abdominal wall, and has gone 4 cms. deep. Traversing

this short distance, the knife pierced the colon of the deceased.

The colon is a part of the digestive system of the human body

and is located towards the back and not towards the front cavity

of the stomach. It is positioned at the lower end of the stomach

cavity. Its position is at a place where vital body organs are not

to be found.

30. Intention of a person has to be gathered from his

acts, as indeed there is no other measure of ascertaining the

same.

31. Single stab blow which happens to be fatal, have

always foxed the Court, whether the offence would fall under

Section 302 IPC or would fall under Section 304 IPC. Further,

even when attracting Section 304 IPC, whether part I or part II

thereof is attracted becomes a complicated issue.

32. Adopting a common sense approach, when a single

knife blow is inflicted, the intensity of the attack (to be measured

by the distance the weapon of offence has cut into the body);

the nature of the weapon of offence; the body part towards

which the injury is directed and the circumstances of the assault

are considered by the Court. Where it is found that the intensity

of the blow was ferocious, evidenced by the knife piercing a

large segment of the body of the deceased and was directed

towards a vital part of the body, for example the chest or the

upper abdomen, judicial opinion has leaned in favour of the view

that such an act evidences an intention to cause the injury which

has proved to be fatal. Thus, the focus of attention has been

"such injury" vis-à-vis "an injury".

33. In the decision reported as AIR 1990 SC 2252 Hemraj

Vs. State (Delhi Administration), a single stab injury on the chest

of the deceased, occurrence happening on the spur of the

moment and upon a sudden quarrel and there being no pre-

meditation in the matter of causing injury, was opined to be a

case where intention to cause death could not be imputed.

However, knowledge was inferred that from the injury in

question, death was likelihood and hence conviction was

sustained under Section 304 Part II IPC. The concurrent finding

returned by the Court of the Sessions and the High Court that

the conviction had to be under Section 302 IPC was reversed.

34. In the decision reported as 2008 AIR SCW 7726 State

of M.P. Vs. Sughar Singh & Ors. three injuries being (i) incised

wound 1" x ½ " x ¼ " on the middle of the head; (ii) incised

wound 1" x ¼ " x 1" on the right leg and (iii) multiple contusions

4" x 2" and 5" x 2" were held to be attracting culpable homicide

not amounting to murder and punishable under Section 304 Part

II IPC.

35. Taking aid of the aforesaid decisions of the Supreme

Court and noting that in the instant case Ram Singh died as a

result of the colon being punctured resulting in faeces spreading

into the abdomenal cavity causing infection; septicemia resulting

and the same being the cause of the death, we are of the

opinion that since the other stab wound was only 1.3 cm deep

and hardly cut through the muscle tissue and that the stab

wound which was the cause of the death was 4 cm deep; death

resulting after 5 days due to the cause as noted above, it cannot

be said that the intention of the appellant was to cause the

death of Ram Singh or that the intention was to cause such

injury which was sufficient in the ordinary course of nature to

cause death. We note that there is no opinion of any doctor that

the injury was sufficient in the ordinary course of nature to cause

death.

36. We partially allow the appeal. The impugned

conviction of the appellant for the offence of murder is modified.

The appellant is convicted for the offence punishable under

Section 304 Part II IPC.

37. We impose the sentence of rigorous imprisonment of

8 years upon the appellant which we feel is sufficient

punishment for the appellant. The appellant shall be entitled to

the benefit of Section 428 Cr.P.C.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

FEBRUARY 11, 2009 mm