Santosh Chander Rajput vs State
2009 Latest Caselaw 201 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                              Crl. Appeal No.475/2003

%                                Date of Order : January 21, 2009

        SANTOSH CHANDER RAJPUT             ..... Appellant
                Through : Mr. V.K.Raina, Advocate

                                       VERSUS

        STATE                                         .....Respondent

Through : Ms. Richa Kapoor, Advocate

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. Vide judgment and order dated 23.4.2003, the

appellant has been convicted for the offence under Section

302 IPC. He has been awarded a sentence of life

imprisonment and fine of Rs.10,000/-, in default to undergo

simple imprisonment for three months.

2. It has been held that in view of the testimony of

Kailash Kumar PW-10, the testimony of Const. Vinod PW-4,

and the testimony of Rishi Kumar PW-14, it stands established

that the appellant had with an intention to cause death,

stabbed the deceased in the abdomen inflicting an injury

which has resulted in the death of the deceased.

3. Since at the arguments advanced today a doubt

was cast on the testimony of PW-10 and PW-4 by urging that

both gave evidence that the deceased had told them that the

appellant was the assailant, but testimony of PW-8 Dr.Sanjeev

Lalwani establishes that the deceased had become

unconscious within 5-10 minutes of the injury, we propose to

re-charter the steps walked contemporaneously by the

prosecution witnesses at the time of the incident.

4. Admittedly, vide DD Entry No.21-A the duty officer

at P.S. Badarpur noted at 11:15 P.M. on 19.4.2000 that a

wireless message had been received informing that a person

has been stabbed near Badarpur School, STD Booth. SI Anil

Malik PW-16, accompanied by Const. Jitender reached the

spot and learnt that the person who was stabbed was

removed in a PCR Van to the hospital. HC Vinod Kumar PW-4,

on duty on the PCR Van „Egale-31‟ had also received an

information on wireless at 11:15 P.M. that a person has been

stabbed in front of Government School Badarpur near STD

Booth. He took the van to the STD Booth and found a person

clutching his stomach and in an injured condition. Kailash

PW-10 was also at the STD Booth. He rushed the injured

accompanied by Kailash to All India Institute of Medical

Sciences and on the way, on making enquiry from the injured,

was told by the injured that his name was Kalu Ram and that

the appellant, a labourer employed at the school had stabbed

him.

5. The PCR Van reached All India Institute of Medical

Sciences, as disclosed by Kailash Kumar in his testimony in

Court, at around 11:45 P.M. Dr.Sri Kishan examined Kalu Ram

and recorded his condition in the MLC Ex.PW-12/A to the

effect that the patient was gasping and that the heart sound

was not audible. The injured could not be revived and died in

the hospital, as recorded in the death summary, at around

1:00 A.M. on 20.4.2000. Since SI Anil Malik had reached

AIIMS soon after Kalu Ram was admitted there, he submitted

an application, Ex.PW-16/B, to the doctor for recording the

statement of Kalu Ram. The doctor declared Kalu Ram unfit

for statement. Since SI Anil Malik informed Inspector Puran

Singh PW-23, then working as an officiating SHO of P.S.

Badarpur, by means of a telephonic call, that Kalu Ram was

serious, PW-23 rushed to the hospital and on learning that the

doctor had declared Kalu Ram unfit for statement, recorded

the statement, Ex.PW-10/A, of Kailash Kumar. He prepared a

tehrir, Ex.PW-23/A, and handed over the same to Const.

Satish with a direction to go to the police station for

registration of a FIR. The statement of Kailash, Ex.PW-10/A,

was received by HC Satya Pal Singh PW-1, at the police

station who recorded the FIR, Ex.PW-1/A at 2:25 A.M.

6. Relevant would it be to note at this stage that PW-

4 who had received the information of a person being stabbed

at the PCO Booth Badarpur School at 11:15 P.M. had reached

the spot; removed the injured and reached the hospital by

11:45 P.M. It may also be noted that the approximate

distance between the site at Badarpur and AIIMS is about 17

kms.

7. Since Kailash had named the appellant as the

assailant of Kalu Ram, the police got about to apprehend the

appellant who was arrested on 3.5.2000.

8. Reverting back to the events which unfolded on

the intervening night of 19-20/4/2000, the police lifted control

earth containing blood from the site at Badarpur School

where, as per Kailash, the deceased was injured. The site

plan was prepared. The MLC of the deceased was obtained

and body sent for post-mortem.

9. Thereafter, the police recorded statements of

various persons under Section 161 Cr.P.C. Rishi Kumar PW-

14, an employee at the STD Booth Badarpur informed the

police that around 11:00 P.M. on 19.4.2000, in his presence at

the STD Booth, a person came to the booth and rung up the

PCR at No.100 and that he heard him inform the police that

somebody was stabbed by someone and that the injured was

sitting outside the booth and that soon thereafter a PCR Van

came and took the injured to the hospital. Three persons,

Ram Pal PW-6, Om Prakash PW-7, and Ram Prasad PW-22,

informed the police that at around 7:00 P.M. on 19.4.2000, in

their presence at the school, one Santosh a munshi of Brij

Mohan Contractor had quarreled with one Ram Prashad, a

labourer, in the presence of the deceased Kalu Ram and that

Om Prakash and the deceased had intervened to separate the

two.

10. As noted above, the appellant was apprehended on

3.5.2000 and was interrogated by Inspector Puran Singh PW-

23, who recorded his disclosure statement Ex.P-20/B, as per

which the appellant disclosed where he had hidden the

weapon of offence used by him to inflict the injury on Kalu

Ram and the appellant volunteered to get the same

recovered.

11. In the presence of HC Om Prakash PW-20, and

Jawahar Lal PW-11, a public witness, the appellant took SI

Puran Singh to a Nala near the school and pointed out the

place in the Nala wherefrom a knife stained with oil; (there

being oil in the Nala), was recovered and seized vide seizure

memo Ex.PW-11/C and thereafter a sketch thereof Ex.PW-

11/A was prepared.

12. The dead body of the deceased was sent to a

mortuary where PW-8 Dr.Sanjeev Lalwani along with Dr.Arun

Agnihotri conducted the post-mortem on 20.4.2000, and

noted the following injuries:-

"1. Stab wound around 2 cm x 0.5 cm obliquely placed in the epigastric region 6.5. cm above umbilicus and 6 cm from xephisternum in the midline which piercing underlying muscles subcutaneous tissue, peritoneal cavity and finally into liver over anterior surface of Rt. lobe lower part near felciform ligament with going obliquely upward; towards Rt. and backward and finally coming out of upper surface.

2. Incised wound of 3 cm over anterior lower part of neck which is skin deep and 2.5 cm from suprasternal notch."

13. At the trial, Const. Vinod PW-4 deposed of having

received a call at his PCR Van at around 11:15 P.M. on

19.4.2000 to which he immediately responded and reached

the Government School near STD Booth. He stated that he

found a person pressing his stomach and in an injured

condition, whom he rushed to AIIMS and that Kailash, PW-10

was present with the injured and that the injured disclosed his

name as Kalu Ram and told him that the appellant had

stabbed him. PW-14 Rishi Kumar, deposed that at 11:00 P.M.

on 19.4.2000, a person rung up the police from his booth and

he heard him inform the police that the injured was sitting

outside and that somebody had stabbed him. He deposed

that soon thereafter a PCR Van came and took the injured to

the hospital. Kailash Kumar PW-10, deposed that he was

doing work of white washing in Delhi for about last 7 years

and that at the time of the incident he was doing work of

white washing in Government Boys Senior Secondary School

Badarpur and that he was present in the school on 19.4.2000,

when at 7:00 P.M. a quarrel took place between one Ram

Prasad a labour, doing work of white washing and the

accused, who was the munshi of the Thekedar Brij Mohan. He

stated that the deceased Kalu Ram was also present when the

fight took place and that a gujar Om Prakash and Kalu Ram

separated Ram Prasad and the accused. He deposed that

thereafter the accused left but came back to the school at

around 11:00 P.M. Kalu Ram who was a chowkidar in the

school asked the appellant as to where was he going to which

the accused responded that he was going to drink water. He

deposed that the accused had consumed liquor and went

towards the rear of the school where the water tank was

situated. The deceased told him i.e. Kailash Kumar to follow

the accused but before he i.e. Kailash Kumar could do so, the

deceased followed the accused and returned after 2-3

minutes, holding his belly, and told him that the accused had

stabbed him. He deposed that he went to the rear and saw

the accused jumping over the wall and running away. He

deposed that since he could not apprehend the accused he

returned to Kalu Ram and went to a telephone booth to inform

the police and that the police came to the spot and removed

Kalu Ram to AIIMS and that the police recorded his statement

Ex.PW-10/A and obtained his signatures thereon at the place

mark „A‟. Thereafter the police took him to the site and

prepared a sketch. In cross examination he stated that he

informed the PCR at around 11:10 P.M. and that the PCR Van

reached the spot after 15-20 minutes and that they reached

AIIMS by around 11:45 P.M. On further cross examination he

admitted that the undernoted 8 statements made by him in

his examination in chief were not recorded in his statement

Ex.PW-10/A:-

"1. I had told the police that Om Prakash had separated accused and Ram Prasad.

2. I had also told the police that Om Prakash gave one or two slap to both Santosh and Ram Prasad.

3. Kalu Ram chowkidar had also separated accused Santosh and Ram Prasad.

4. I had told the police that Santosh had taken liquor.

5. I had told the police that Kalu Ram asked me to follow accused Santosh while he was going to take water.

6. I had also told the police that Kalu Ram again asked me not to go and he himself will follow as Santosh was drunken.

7. I had informed the police that after 2-3 minutes Kalu Ram returned back holding his belly.

8. I had told the police that when I asked about Santosh from Kalu Ram then Kalu Ram told me that accused Santosh was in the rear portion of School."

14. PW-11 Jawahar Lal, proved the pointing out memo,

Ex.PW-11/A, prepared when the accused pointed out the spot

wherefrom the weapon of offence was recovered; deposing

that he was present when the event happened. He deposed

that the knife Ex.P-1 was recovered in his presence from the

spot pointed out by the accused and that the knife was seized

in his presence vide seizure memo Ex.PW-11/C. He stated

that the sketch of the knife Ex.P-11/B was prepared

thereafter. PW-6 Ram Pal deposed that on 19.4.2000, at

around 6:00 P.M. in presence of the deceased Kalu Ram the

appellant had an altercation with Ram Prasad in the school

and that PW-7 Om Prakash intervened and separated the two.

Om Prakash PW-7, corroborated PW-6 about the fight between

the appellant and Ram Prasad. He stated that the appellant

was drunk at that time. PW-22 also corroborated PW-6 about

the fight which took place in the evening and stated that the

appellant was drunk. It is relevant to note that the three

witnesses were not cross examined pertaining to their

testimony where they stated that the appellant had a fight

with Ram Prasad in the school at around 7:00 P.M. on

19.4.2000. No suggestion has been put to the witnesses that

the appellant was not present in the school at around 7:00

P.M.

15. Dr.Sanjeev Lalwani PW-8 proved the post-mortem

report Ex.PW-8/A and on being shown the knife Ex.P-1, in

Court, stated that the same could cause the injuries

mentioned in the post-mortem report. On cross examination

he stated that the injury on the deceased was of a kind where

blood loss was excessive and the person so injured would

become unconscious within 5 to 10 minutes.

16. We are eschewing reference to the other witnesses

as they are police officers associated with the investigation

and no submissions have been urged today with reference to

their testimony and facts proved by them.

17. The appellant took a plea of alibi and examined his

father as DW-1 who deposed that there was a marriage in the

family on 19.4.2000 at village Ohndera and that the appellant

had attended the wedding in his presence. The marriage card

Ex.DW-1/A was proved which records that Kumari Angita

daughter of Chattar Pal Rajput was to get married on

19.4.2000. It may be noted that on being cross examined,

DW-1 stated that no photographs were taken at the time of

the marriage.

18. Learned Trial Judge has held that the evidence on

record establishes the presence of the appellant in the school

building in the evening of 19.4.2000 and his altercation with

Ram Prasad. That the evidence establishes that the appellant

inflicted the injuies on the deceased who made a dying

declaration immediately before his death to PW-10 followed

thereafter by a dying declaration to PW-4 and there was no

reason to disbelieve said witnesses who deposed that before

he died, Kalu Ram named the appellant as the assassin.

19. At the hearing held today, four submissions have

been urged by learned counsel for the appellant. The first

submission made is with reference to the testimony of PW-8

Dr.Sanjeev Lalwani, who deposed that a person with the

injuries as were found on the person of Kalu Ram would

become unconscious within 5-10 minutes. It is urged that PW-

10 Kailash Kumar, on being cross examined, stated that the

police PCR reached at the spot after about 15-20 minutes.

Thus, counsel urges, PW-4 could not have been told by Kalu

Ram of being injured by the appellant, because by that time

he was already unconscious. Counsel urges that the MLC of

Kalu Ram, Ex.PW-12/A, records that heart sound was not

audible; meaning thereby, that Kalu Ram was nearly dead by

the time he reached the hospital; wherefrom it is urged, that

an inference can be drawn that Kalu Ram was not in a state of

consciousness when the PCR Van reached the PCO Booth.

20. The second submission made is that Kailash PW-10,

the star witness of the prosecution, has made improvements

upon his previous statement Ex.PW-10/A. Learned counsel

drew our attention to the 8 statements (noted in para 13

above) made by PW-10 in his examination in chief which were

not a part of his previous statement Ex.PW-10/A. Thus,

counsel urges that PW-10 is not a trustworthy witness.

21. The third submission made is that there was no

reason to disbelieve DW-1 who proved through the medium of

the wedding card Ex.DW-1/A that indeed there was a wedding

in the family in the village on 19.4.2000 and that the

appellant was in the village to attend the wedding. Counsel

urges that taking photographs on marriages is not a custom in

villages and merely because no photograph of the

marriage were produced does not mean that no marriage took

place. With reference to the testimony of PW-2 Deen Dayal

Sharma, who on cross examination stated that on 17.4.2000

he had given Rs.6,000/- in cash to the appellant as he had

wanted to go to his native village to attend a marriage,

learned counsel urges that the plea of alibi has to be

accepted.

22. Lastly, it is urged that a single injury was caused

and hence at best conviction can be under Section 304 IPC

and not Section 302 IPC.

23. Neither submission has impressed us. Pertaining

to the first submission made, as noted hereinabove, we have

meticulously noted the exact sequence of events and the time

as to what transpired in the night of 19.4.2000.

24. As per the testimony of PW-10, the appellant had

assaulted the deceased sometime after 11:00 P.M. but before

11:10 P.M. PW-10 has stated that the appellant had come to

the school at 11:00 P.M. and Kalu Ram asked him as to where

was he going to which appellant responded that he was going

to drink water and went towards the rear of the school where

the water tank was situated; the deceased followed the

appellant and returned after 2-3 minutes holding his belly with

a stab wound in the belly. At 11:15 P.M. DD Entry No.21-A

stands recorded. By the same time i.e. 11:15 P.M. PW-4,

received a message in the PCR Van to rush to the spot. As

per PW-10, then in an injured condition the deceased was

removed to the hospital and reached the hospital at 11:45

P.M. That PW-10 stated that the PCR Van reached the spot

after 10-15 minutes of the telephone call is neither here nor

there because PW-10 is not a very literate person evidenced

by the fact that he is a person working as a labourer doing

work of whitewashing and would be expected to refer to time

span in a loose and laconic manner. In any case, his

subsequent statement that the injured was admitted at AIIMS

at 11:45 P.M. shows that by 11:45 P.M. a distance of about 17

kms was covered after the injured was put inside the PCR

Van; meaning thereby that the PCR Van had reached the spot

immediately. It has to be noted that the message was

received by PW-4 at 11:15 P.M. and within half an hour

thereof he reached the spot; put the injured inside the PCR

Van and brought him to the hospital. The journey time itself

would take between 20-25 minutes. Thus within less than 5

minutes the PCR Van must have reached the spot. Further,

PW-8 has given an opinion only and not a categoric finding. 5-

10 minutes referred to by him could well be 5-12 minutes. Be

that as it may, in the absence of any suggestion given to PW-4

that he had an enmity with the appellant and was thus

deposing falsely, and independent thereof, finding no reason

for PW-4 to depose falsely, we are of the opinion that the

testimony of PW-4 has to be believed. The testimony of PW-4

as also PW-14 establishes that PW-10 was present with Kalu

Ram. His presence at the site cannot be doubted.

25. Pertaining to the second plea i.e. the alleged

improvements by PW-10 while deposing in Court vis-à-vis his

statement Ex.PW-10/A, we note that 8 statements made by

him in the examination in chief are alleged to be

improvements, in that, the same are not recorded in Ex.PW-

10/A.

26. We have noted the said 8 statements in para 13

above. Pertaining to the 4th statement we note that in Ex.PW-

10/A it stands recorded that Santosh was intoxicated.

Whether a witness says that the accused had taken liquor or

whether the witness says that the accused was intoxicated,

convey the same meaning. Thus, statement No.4 is not an

improvement.

27. If one peruses statements 1 to 4, it would be

evident that the said statements are not material statements

and hence cannot cast any doubt on the testimony of PW-10.

Statements 5 to 8 do appear to be improvements at the first

blush. But if read carefully, with reference to PW-10/A, one

notices that in his first statement made to the police, Ex.PW-

10/A, PW-10 has stated that when Santosh came to the school

at 11:00 P.M. and deceased asked him as to where was he

going he responded that he was going to drink water from the

tap at the rear of the school and that Kalu Ram followed him

with a torch in the hand and after 5 minutes, clutching his

stomach Kalu Ram came back and said „bete mujhe bachao

ke santosh ne mujhe chaku mar diya hai'. It is apparent that

in his first statement to the police, PW-10, disclosed about

Santosh going towards the rear of the school to drink water

and Kalu Ram following him and returning back holding his

belly and saying that Santosh had stabbed him. Thus,

statement No.7 and 8 do form part of the statement made by

PW-10 to the police, and hence cannot be called

improvements. The only statement not forming part of

Ex.PW-10/A, is Kalu Ram asking the witness to follow Santosh

while he was going to take water and not informing the police

that Santosh was in a drunken condition even at 11:00 P.M.

28. But, do these statements amount to material

improvements? We wonder how? Even otherwise, law does

not require to throw out, lock stock and barrel, the testimony

of a witness who improves upon his previous statements.

Encountering such a situation, the Court has to separate the

grain from the chaff. There is no suggestion given to PW-10

of his having any animosity with the accused i.e. the appellant

and thus we see no reason for PW-10 to falsely implicate the

appellant. Even otherwise the testimony of PW-4 is enough to

hold that the deceased made a dying declaration to him about

the cause of his death and who caused the injury.

29. Pertaining to the plea of alibi, as noted

hereinabove, PW-6, PW-7 and PW-22 as also PW-10 have

categorically deposed of the appellant being present in the

school at around 7:00 P.M. on 19.4.2000 and having an

altercation with Ram Prasad. This testimony of the four

witnesses has not been challenged, evidenced by the fact that

no question has been put to the witnesses pertaining to the

fight which took place at 7:00 P.M. in the evening. No

suggestion has been made to the said witnesses that the

appellant was not even present in the school at 7:00 P.M.

Thus, it stands established that the appellant was in Delhi on

the date of occurrence. He was present in the school in the

evening of 19.4.2000 and hence could not be in the village

Ondhera in the evening of 19.4.2000. The testimony of DW-1

who is the father of the appellant has rightly been rejected by

the learned Trial Judge.

30. Pertaining to the testimony of PW-2 we note that

he was examined and cross examined on 5.1.2001. He never

deposed that on 17.4.2000 he gave Rs.6,000/- in cash to the

appellant who left for the village on 17.4.2000. On an

application filed to recall PW-2 for further cross examination

and on the same being allowed, PW-2 was further cross

examined on 17.3.2003, when he made a statement in Court

to the effect that on 17.4.2000 he had given Rs.6,000/- in

cash to the accused who left for his village to attend some

marriage. It is obviously a case where PW-2 was won over

after more than 2 years.

31. Pertaining to the last submission made that the

evidence on record does not establish an intention to cause

death and hence the appellant cannot be convicted for the

offence of murder; suffice would it be to state that there is no

rule of law which states that when a single injury is caused

the offence of murder can never be made out. Intention of a

person has to be gathered from his conduct and the acts

committed by the person. A person is presumed to intend the

natural consequences of his acts flowing. The weapon of

offence, the circumstances under which it was used, the part

of the body i.e. vital or non-vital on which the injury is

inflicted, the force used to inflict the injury; all have to be

considered. In the instant case the injury which has caused

the death has been directed towards a vital part of the body

i.e. the abdomen. The exact place of the injury is midway

between the umbilicus (belly button) and xephisternum (the

lower end of the sternum). The knife has cut through the

muscle tissue and has entered the peritoneal cavity i.e. the

stomach region and has entered the liver at the anterior

surface of the right lobe near felciform ligament and travelling

obliquely upwards has cut through the liver and emerged

outside the liver at the upper surface. Human anatomy

guides us that the internal wound is spanning a length of at

least 9 to 10 inches. This evidences the ferocity with which

the blow was inflicted. It is not a case of a single injury.

There is another injury at the anterior lower part of the neck.

The two injuries show that the appellant had the intention to

attack the vital organs of the deceased. There is a motive

emerging. It is anger against the deceased who had

intervened when the appellant and Ram Prasad had a quarrel

at 7:00 P.M. May be, something was said at that time which

was not to the liking of the appellant. There is no evidence

that the appellant was provoked. The appellant has not

stated when examined under Section 313 Cr.P.C. as to what

led him to do what he did. Thus, it is a clear case of the act

being done with an intention to cause death. In any case

Section 300 thirdly of the Indian Penal Code is fully attracted.

32. We are satisfied that the evidence on record has

established the guilt of the appellant.

33. There is no merit in the appeal.

34. The same is dismissed.

(PRADEEP NANDRAJOG) JUDGE

(ARUNA SURESH) JUDGE January 21, 2009 mm