Kishan @ Babli vs State
2009 Latest Caselaw 317 Del

*                       IN THE HIGH COURT OF DELHI

                                   Judgment reserved on : January 13, 2009
%                                  Judgment delivered on : January 30, 2009

+                                   CRL.A.65/2006

       KISHAN @ BABLI                                   ..... Appellant
                Through:            Ms. Charu Verma, Advocate

                                    versus

       STATE                                           ..... 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?                 Yes.

3. Whether judgment should be reported in Digest?                Yes.

: PRADEEP NANDRAJOG, J.

1. On 24.06.2002 at about 9.00 A.M. a telephonic call

was received by HC Ishwar Jan Rai PW-4, to the effect that two

persons have been injured near Arun Hotel. Pursuant thereto,

PW-4 rushed to the spot where he found two persons named

Prabhu Dayal @Kalu and Bhagat Ram in an injured condition.

The said injured persons were immediately removed to Lady

Hardinge Hospital for medical aid. Simultaneously, wireless

information regarding the said incident was sent to the police

station concerned pursuant to which, DD Entry No.10 A, Ex.PW-

5/A, was recorded.

2. Taking along with them a copy of DD No.10 A,

Const.Dheeraj Singh PW-5, Const.Vijender PW-8, SI Kamla

Meena the SHO of the police station PW-15 and SI Arvind Kumar

PW-16 went to the spot and on learning that the injured had

been removed to Lady Hardinge Hospital, SI Kamla Meena

accompanied by Const. Dheeraj proceeded to the hospital and

on reaching there learnt that Prabhu Dayal @ Kalu (hereinafter

referred to as the "Deceased") had been declared brought dead.

The other injured person Bhagat Ram PW-3, was admitted in an

injured condition and was fit for making a statement. SI Kamla

Meena PW-15, recorded the statement Ex.PW-3/A of Bhagat Ram

and made an endorsement Ex.PW-15/A thereon, and at around

11.00 A.M. handed over the same to Const. Dheeraj Singh PW-5,

for registration of a FIR. Dheeraj Singh took Ex.PW-3/A to the

police station and handed over the same to ASI Rajbir Singh PW-

1, who recorded the FIR No.181/02, Ex.PW-1/A, at 11.20 A.M. on

24.06.2002. (A perusal of the trial court record reveals that two

witnesses namely ASI Rajbir Singh and Inspector Usha Sharma

have been numbered as PW-1). It may be noted here that Raju

PW-2, was also at the hospital when the police reached there.

3. In his statement Ex.PW-3/A, Bhagat Ram stated that

he is earning his livelihood by working as a rickshaw puller. That

on 24.06.2002 at about 8.00 A.M., he along with the deceased

who was his friend and Raju PW-2, who was the brother of the

deceased were sitting near Govt. toilets, Arya Samaj Road, when

Kishan @ Babli s/o Dayal Singh r/o 303-H, Bapa Nagar, Delhi (the

accused) who was well-known to him came armed with an open

knife and demanded money from the deceased for purchasing

liquor. The deceased refused to give him money and asked him

to depart, at which the accused got angry and said that the

deceased had insulted him in front of everybody, and

threatened to kill the deceased. That the accused gave a blow

with a knife on the abdomen of the deceased at which the

deceased fell on the ground. That when he i.e. Bhagat Ram and

Raju tried to stop the accused, he gave a knife blow on the back

of his i.e. Bhagat Ram's right thigh and ran away. That

thereafter he informed the police about the incident over the

phone at which a PCR van came to the spot and removed him

and the deceased to Lady Hardinge Hospital where he learnt

that the deceased had died.

4. The MLC of Bhagat Ram Ex.PW-14/A records that one

injury 'CLW 3 cm X 1 cm' was noted on the right thigh.

5. Since the other injured Kalu was declared brought

dead at the hospital, his body was sent to the mortuary where

PW-6 Dr.Upender Kishore conducted the post-mortem on

25.06.2002 and gave his report Ex.PW-6/A which records the

following external ante-mortem injuries:-

"Incised stab wound of size 2.5 x 0.8 x 13 cm. Cavity deep well shaped present in the epigastric region just adjacent to mid line on right side placed 5 cm. above the umblicus. The one angle is more acute than the other angle, the skin subcutaneous tissue, fascia and muscle has been cut and entered the abdominal cavity, cutting the left boarder of liver. Size about 5 cms. went below the liver, cut the left regional arteries in its course the direction in its course the direction is horizontally inward and backward from right to left." (Emphasis supplied)

6. The internal examination recorded in the post-

mortem Ex.PW-6/A, is as under:-

"Abdominal cavity contains three litre of fluid and clotted blood. Massive extragavation of blood in left kidney area. Left regional artery cut as mentioned all internal organs are pale. And opined cause of death as shock due to hemorrhage as a result of injury to left regional artery produced by sharp stabbing, single edged weapon and sufficient to cause death in the ordinary course of nature. However, injury to liver can also cause death independently and collectively. All injuries are ante mortem in nature and fresh in origin. Time since death was about 30 hours."

7. In the meanwhile spot proceedings were conducted

at the place of the occurrence on 24.6.2002. PW-15 prepared

the site plan Ex.PW-15/B; recording therein the place at point 'A'

where the deceased was stated to have been stabbed. Blood

sample earth, sample earth control and blood sample cotton

were lifted and seized vide memos Exhibits PW-2/A, PW-2/B and

PW-2/C respectively. The sample of the blood and clothes of the

deceased were seized vide memo Ex.PW-10/A. The sample of

the blood of Bhagat Ram PW-3 and the pant which he was

wearing at the time of the incident were seized vide memos

Exhibits PW-9/A and Ex.PW-3/B respectively.

8. Since in his statement Ex.PW-3/A, made to PW-15,

Bhagat Ram had informed that the appellant was the assailant,

the police set out to apprehend the appellant. The appellant

was apprehended on 28.06.2002 as per arrest memo Ex.PW-2/D.

A search was conducted on the person of the appellant but no

article was recovered from his possession as evidenced from

personal search memo Ex.PW-2/E.

9. The appellant was interrogated by SHO Kamla Meena

PW-15 in the presence of SI Arvind Kumar PW-16 and

Const.Ambrish PW-13. The appellant made a disclosure

statement Ex.PW-2/F, pursuant to which the police recovered

and seized vide seizure memo Ex.PW-2/I a knife at the pointing

out of the appellant as also a shirt, which according to the police

the appellant was wearing at the time of the incident. The

sketch of the said knife Ex.PW-2/H was drawn by PW-15.

10. The seized materials were sent to the Forensic

Science Laboratory for forensic examination. Vide FSL report

dated 31.10.2002 human blood of 'B' group was found on the

sample earth, clothes of the deceased and pant of Bhagat Ram.

11. Armed with the aforesaid material a challan was filed

accusing the appellant of having murdered the deceased Kalu;

causing grievous hurt to Bhagat Ram by means of a dangerous

weapon; and of being in illegal and unlawful possession of a

dangerous weapon. Charges were framed against the appellant

for having committing offences punishable under Sections

302/324 IPC and Section 27 of the Arms Act.

12. At the trial, apart from examining afore noted police

officers who were involved with the investigation who proved

the receipt of initial information; the police visiting the place of

the occurrence; registration of the FIR; recording statement of

Bhagat Ram during investigation; disclosure statement of the

accused; preparation of the plan of the site; the doctor who

conducted the post-mortem of the deceased Kalu, Bhagat Ram

and Raju were examined as PW-6, PW-3 and PW-2 respectively

who deposed in harmony with each other and stated facts

recorded in the statement Ex.PW-3/A made by Bhagat Ram to

the police pursuant whereto the FIR was registered.

13. In his statement recorded under Section 313 Cr.P.C.

the appellant denied everything.

14. Believing the testimony of Bhagat Ram PW-3 and

Raju PW-2, in view of the post-mortem report Ex.PW-6/A of the

deceased and MLC of Bhagat Ram Ex.PW-14/A, vide judgment

dated 14.05.2004, the learned Trial Judge has convicted the

appellant under all the charges and vide order dated 17.05.2004

has sentenced him to undergo imprisonment for life for offence

punishable under Section 302 IPC; RI for two years for offence

punishable under Section 324 IPC; RI for one year for offence

punishable under Section 27 of Arms Act. All the sentences

awarded to the appellant have been directed to run

concurrently.

15. At the hearing of the appeal the first submission

advanced by the learned counsel for the appellant was that the

learned Trial Judge has erred in convicting the appellant on the

basis of the testimony of Bhagat Ram who was a person of

questionable antecedents inasmuch as he admitted that he has

been in prison many times and is a drug addict.

16. We only note the decision reported as State of

Punjab v Wassan Singh 1981 Cri LJ (SC) 410 wherein it was

observed as under:-

"27. It is true that both these witnesses are related to the deceased, and, as such, are interested witnesses. Their antecedents, also, are of a questionable nature. But their antecedents or mere interestedness was not a valid ground to reject their evidence. Persons with such antecedents are not necessarily untruthful witness. Nor mere relationship with the deceased was a good ground for discarding their testimony, when, as we have already held, their presence at the scene of occurrence was probable. All that was necessary was to scrutinise their evidence with more than ordinary care and circumspection with reference to the part or role assigned to each of the accused. An effort should have been made to sift the grain from the chaff; to accept what appeared to be true and to reject the rest. The High Court did not adopt this methodology in appreciating their evidence. Instead, it took a short- cut to disposal, and rejected their evidence wholesale against all the accused, for reasons which, as already discussed, are manifestly untenable. (Underlining emphasized)

17. In the instant case, the ocular version of Bhagat Ram

PW-3 that the appellant had given a knife blow on his right thigh

finds corroboration from the MLC, Ex.PW-14/A, which records

that one injury 'CLW 3 cm X 1 cm' was found on his right thigh

and the fact that other eye-witness Raju PW-2 has also

supported the evidence of Bhagat Ram in its material particulars

has to be kept in mind. It is further relevant to note that both

the witnesses were cross-examined at length but nothing

tangible could be extracted to create a shadow of doubt on their

testimony.

18. The second submission advanced by the learned

counsel for the appellant was that the appellant only inflicted a

solitary knife blow on the abdomen of the deceased and hence

can only be attributed with intention to cause an injury which

was likely to cause death and not with an intention to cause the

death of the deceased or an injury sufficient in the ordinary

course of nature to cause death. Hence, counsel urged that at

best it was a case of culpable homicide not amounting to

murder.

19. If, as a result of a solitary blow by a weapon of

offence the victim is done to death, the question as to whether

the offence falls under Section 302 or Section 304 IPC admits of

no straight answer. Pertaining to a homicidal death, if the facts

proved by the prosecution bring the case within the ambit of

any of the four clauses of Section 300 IPC, the offence would be

murder. If the case cannot be encompassed by any of the

aforesaid four clauses, the offence would be culpable homicide

not amounting to murder.

20. The legal position relating to cases of solitary blow

was succinctly stated by the Supreme Court in the decision

reported as Jagrup Singh v State of Haryana 1981 CriLJ 1136

(SC) in following words:-

"6. There is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in the death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under S.304. Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either Clause Firstly or Clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the mount of force employed and the circumstances attendant upon the death."

21. In the decision reported as State of Karnataka v

Vedanayagam 1995 (1) SCC 326, the facts were that the

accused, shouting "you have defamed me. I would not leave

you. I will kill"; stabbed the deceased on the left side of the

chest as a result whereof the deceased died. There was neither

a quarrel nor a fight between the deceased and the accused.

The words uttered by the accused followed by the attack on the

left side of the chest of the deceased was held to clearly

indicate that he intended to cause that particular injury which

was objectively found to be sufficient in the ordinary course of

nature to cause death. It was held that the accused intended to

cause that particular injury on the chest which proved fatal and,

therefore, Clause (3) of Section 300 IPC, was clearly attracted.

In the decision reported as Aditya Mahapatra v State of

Orissa 1980 Cri LJ 1475, a single stab blow in the chest of the

deceased; penetrating to a depth 1-3/4, piercing the left lung,

cutting the fourth rib was found indicative of the fact that

considerable force had been used and the offence was held to

be of murder.

22. Thus it cannot be said as a rule of universal

application that whenever a single blow is inflicted and death

results, the charge of murder cannot be sustained. It would

depend upon the facts of each case. The nature of the weapon

used; if a knife or a dagger, the size of the blade thereof; the

part of the body i.e. vital or not towards which the blow is

directed; the ferocity of the attack and the back drawn facts in

which the assault was committed are all relevant facts to

determine the intention of the accused.

23. Ex.PW-2/H is the sketch of the knife used by the

appellant for stabbing the deceased and Bhagat Ram PW-3. The

knife is S-shaped. The total length of the knife is 24.6 cm; length

of the blade is 11.6 cm; width of the blade is 2 cm; length of the

handle is 11 cm; the length of metal strip connecting the blade

with the handle is 2 cm. It is no ordinary kitchen knife. It is

more akin to a dagger.

24. Ex.PW-6/A, the post-mortem report of the deceased,

evidences that the appellant had struck the deceased on a vital

part of his body i.e. the abdomen and pierced a vital body

organ, the liver. The ferocity of the blow or its intensity

can be gauged from the fact that the knife penetrated to a

depth of 13 cm; piercing the liver and cut the left arteries of the

liver. Another pointer indicating that considerable force was

used by the appellant is the fact that not only the blade but

even a portion of the handle of the knife penetrated inside the

body of the deceased for the reason the length of the blade is

only 11 cm but the injury has traversed a distance of 13 cms.

25. It is also relevant to note that it has come in

evidence against the appellant that he had tried to extort

money from the deceased and when the deceased refused to

part with money, stating that he would teach him a lesson, the

appellant stabbed the deceased. That the appellant even

inflicted a knife injury on Bhagat Ram who tried to intervene

and save the deceased also evidenced the intention of the

appellant to give effect to the consequences of his acts.

26. A mild attempt was made to urge that the evidence

shows that the appellant only intended to extort some money to

buy liquor and thus it cannot be said that he approached the

deceased with an intention to kill him. The plea is neither here

nor there. It is settled law that where a person primarily intends

the commission of a particular offence, say robbery; but is

armed and uses the weapon of offence if obstructed in the act

to rob, an intention to use force to achieve robbery and in said

act to overcome resistance at all costs can be inferred. If during

the act of committing robbery, on facing resistance, injury is

inflicted on a person who obstructs the robbery and the injury is

sufficient in the ordinary course of nature to cause death, the

charge of murder would stand.

27. We find no merits in the appeal. The appeal is

dismissed.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

JANUARY 30, 2009 mm