[email protected] Bhura vs State
2009 Latest Caselaw 84 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision : 14th January, 2009

+                             CRL.A. 142/2007

       [email protected] BHURA                          ..... Appellant
                Through:            Mr.Javed Alvi, 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 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. (Oral)

Crl.M.B.94/2008

Learned counsel for the appellant and the State

jointly state that the main appeal may be heard today itself. The

application is dismissed as infructuous since we are hearing

arguments in the main appeal.

Crl.Appeal No.142/2007

1. The case of the prosecution is that Const.Gajender

Singh, PW-2, while on patrol duty at 10:00 PM on 18.10.2002

found a person in an injured condition on Thekewala Road near

Sulabh Sauchalya, Metro Apartments, Jahangir Puri, murmuring

in pain, that he had been stabbed. Const.Gajender took the

injured on a rickshaw to BJRM Hospital and claims that on the

way to the hospital the injured informed him that Bhura i.e. the

appellant was the assailant. Const.Gajender claimed that on the

way to the hospital, wife of the deceased, PW-1, Sangeeta had

incidentally met him and had disclosed the name of the injured,

introducing herself as the wife of the injured.

2. As per MLC, Ex.PW-13/A, the injured was declared

dead when he was brought to the casualty of the hospital at

10.15 P.M.

3. FIR No.699/02, Ex.PW-9/A was registered by PW-9,

ASI Zahur Singh at PS Jahangir Puri.

4. As per the prosecution, the accused made a

disclosure statement in the presence of HC Jogi Ram, PW-7,

pursuant whereto the weapon of offence, a knife was recovered

at the instance of the appellant who pointed out the place where

the knife was ostensibly hidden by him after committing the

crime.

5. It is not in dispute that another FIR, being FIR

No.698/02, under Section 25 of the Arms Act was registered on

18.10.2002 at the same police station i.e. PS Jahangir Puri

against the appellant, as according to the police he was found in

possession of a knife. It is not in dispute that in FIR No.698/02,

PS Jahangir Puri, the appellant was arrested by the police at 7.30

PM and continued to be in the custody of the police till he was

produced before a Magistrate the next day.

6. At the trial, PW-1, the wife of the deceased did not

support the case of the prosecution inasmuch as she deposed

that on the day of the occurrence i.e. 18.10.2002 she received

an information by a neighbour at 11.30 PM that her husband

was lying near a liquor shop at Jahangir Puri. She reached the

liquor shop and found that her husband was lying cold having

injuries on the stomach and that a crowd had collected at the

spot. She stated that the police had reached there. She stated

that the police took her husband to the hospital where she

identified the dead body of her husband and thereafter her

statement, Ex.PW-1/B, was recorded. She stated that she was

not aware as to how her husband was killed.

7. A two-fold contention was urged before the learned

Trial Judge during arguments. Firstly, that PW-1 had

contradicted PW-2 with respect to PW-2 having met her and she

having told him that the injured person he was taking to the

hospital was her husband Gurudev. It is urged that the

testimony of Const.Gajender, PW-2 was thus suspect.

8. A more forceful submission has been made. It is

urged that as per the record of the police station pertaining to

FIR No.698/02, the appellant was arrested at 7.30 PM. Where

was the occasion for him to have inflicted the injuries on the

person of the deceased at around 10.00 P.M? Learned counsel

urges that PW-2 has falsely deposed of the deceased having

made a dying declaration to him.

9. We find from the impugned judgment that the

learned Trial Judge has brushed aside both submissions.

Though, the same have been noted as the contentions urged by

the defence.

10. The conviction of the appellant has been sustained

on the basis of the purported oral dying declaration made by the

deceased to Const.Gajender, PW-2. The learned Trial Judge has

found support in the case of the prosecution with reference to

the disclosure statement of the appellant and the recovery of a

knife at the instance of the appellant to hold that the charge has

been established against the appellant.

11. With respect to the appellant being in custody of the

police at 7.30 PM on 18.10.2002, learned counsel for the State

does not dispute the said fact; as indeed the police record

pertaining to FIR No.698/02 PS Jahangir Puri shows that the

appellant was arrested at 7.30 P.M on 18.10.2002 and remained

in police custody thereafter throughout the night.

12. Learned counsel for the State urges that as per the

disclosure statement of the appellant in FIR No.698/02, Ex.PW-

7/C, he admitted having stabbed the deceased at around 7.00

PM and made a further disclosure qua the place where he could

get the weapon of offence i.e. the knife recovered. Counsel

further urges that thereafter the appellant took the police to the

spot where from the weapon of offence i.e. the knife was

recovered. Counsel urges that it is within the realm of

possibility that the injured who was stabbed at 7.00 PM

remained unnoticed till 10.00 PM when he was found in an

injured condition by Const.Gajender.

13. To appreciate the contention urged by learned

counsel for the State pertaining to the deceased being injured at

7.00 PM and not being found by the side of the road till 10.00

PM, two facts are important. The same de-probablize the

projected plea of learned counsel for the State.

14. The first is the fact that at 10.15 P.M, as recorded in

the MLC, Ex.PW-13/A, the deceased was declared dead when

brought to the hospital. This shows the extreme fragile

condition of the deceased. Obviously, the deceased died within

15 minutes after 10:00 P.M.

15. The second fact of importance is that the place where

Const.Gajender found the deceased is a public place. The road

in question passes through a crowded locality. The place at

which the deceased was found by Const.Gajender is next to the

Shulabh Sauchalya. It is difficult to believe that the injured was

lying on the road from 7.00 PM till 10.00 PM without any person

noticing him.

16. The aforesaid facts are sufficient to cast a cloud on

the version of the prosecution, more so for the reason as per the

report of the forensic science laboratory, the knife which was

ostensibly recovered at the disclosure statement made by the

appellant did not contain any blood.

17. The appeal is accordingly allowed. Impugned

judgment and order dated 16.1.2007 convicting the appellant

for the offence under Section 302 IPC is set aside. The sentence

imposed upon the appellant vide order dated 16.1.2007 is set

aside.

18. If not in detention in any other case the appellant is

directed to be released forthwith.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

JANUARY 14, 2009/dk