Rajiv Katyal vs State
2009 Latest Caselaw 2453 Del

           THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment delivered on: 03.07.2009

+      CRL A. 187/1993

RAJIV KATYAL                                             ...       Appellant

                                 - Versus -

STATE                                                    ...       Respondent

Advocates who appeared in this case:-

For the Appellant        : Mr Ajay Burman with Mr R.K. Singh and
                           Mr R. Samanotra
For the Respondent       : Mr Sunil Sharma


CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.B. GUPTA

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

2. To be referred to the Reporter or not ? Yes

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

BADAR DURREZ AHMED, J

1. The appellant Rajiv Katyal was found guilty of having murdered

his uncle (father‟s brother) Satya Pal and was accordingly convicted for

the offence punishable under Section 302 IPC by the learned

Additional Sessions Judge, Delhi by his judgment dated 27.10.1993 in

Sessions Case No.56/1992 (Old No.21/1986) arising out of FIR No.

558/1985 under Section 302 IPC registered at Police Station Moti

Nagar, Delhi. By virtue of a separate order of the same date, the

learned Additional Sessions Judge sentenced the appellant to undergo

rigorous imprisonment for life as also to pay a fine of Rs 3,000/- and in

default of payment of fine, he was to suffer further rigorous

imprisonment for a period of one year.

2. As per the prosecution, the appellant Rajiv Katyal committed the

murder of his uncle Satya Pal on 19.11.1985 at about 9.00 a.m. near C-

183, Moti Nagar, New Delhi. The said murder is said to have been

committed by the appellant by using a pointed iron object referred to as

„sua‟. It is alleged that the appellant repeatedly stabbed his uncle Satya

Pal with the said sua on his chest and abdomen and thereafter fled from

the scene. Satya Pal was first taken to Vohra Nursing Home, Rajouri

Garden by PW-5 (Gulshan Kumar, another uncle of the appellant and

brother of the deceased Satya Pal) and others. Since no doctor was

available at the said nursing home, the injured Satya Pal was taken to

Rana Nursing Home. As per Exhibit PW-9/DB, injured Satya Pal

arrived at Rana Nursing Home at 9.45 a.m. and passed away shortly

thereafter at 9.51 a.m. and the police was thereafter informed.

3. The prosecution case is based upon the statement (Exhibit PW-

1/A) of PW-1 (Kundan Lal, another uncle of the appellant and brother

of the deceased Satya Pal) given to the police on that date, i.e.,

19.11.1985. As per the statement, the appellant Rajiv was the son of

his brother PW-12 (Jagdish Lal) who resided at C-187, New Moti

Nagar and that Rajiv had thrown out his father Jagdish Lal from his

house for the last about one year. He further stated that the appellant

Rajiv had bad habits and that he took money from the house and wasted

it. As per the said statement (Exhibit PW-1/A), Kundan Lal stated that

his brother PW-12 (Jagdish Lal) had objected to the activities of the

appellant Rajiv and it is due to this that the appellant Rajiv alongwith

his mother DW-1 (Vimla) had ousted PW-12 (Jagdish Lal) from his

house so that they may live freely. It is thereafter that PW-12 (Jagdish

Lal) started residing with his parents at 20/14, East Punjabi Bagh where

his younger brother PW-5 (Gulshan Kumar), Satya Pal and Rajpal were

also residing. The statement (Exhibit-PW-1/A) goes on to further

indicate that due to this, the appellant had enmity with his uncle Satya

Pal and he used to question him as to why his (appellant‟s) father was

being kept by him (Satya Pal) in their house. Satya Pal did not bother

about this. The appellant is said to have threatened Satya Pal many

times that if he continued to keep Jagdish Lal with him, he would have

to pay for it and the result would be very bad.

4. It was further stated that on 19.11.1985 at about 8.30 a.m., PW-1

(Kundan Lal) had gone to C-183, New Moti Nagar in order to find out

about the mare which had to be arranged for his brother Gulshan‟s

marriage to be held on 29.11.1985. There, he met PW-2 (Narain Dass)

and discussed about the mare and the petromax which was also to be

arranged. He further stated that while he was talking with Narain Dass,

the appellant Rajiv @ Bawa came out of his house and started abusing

Staya Pal. He stated that Satya Pal had given him time to meet the

ghori wala and he had arrived. While abusing, the appellant Rajiv is

said to have gone inside his house C-187, New Moti Nagar and from

there he brought a pointed iron object and injured Satya Pal by

attacking him and giving blows on his chest and abdomen. Satya Pal

started bleeding. As per Exhibit-PW-1/A, the said incident was

witnessed by him [PW-1 (Kundan Lal)], PW-2 (Narain Dass) and other

public persons who were standing nearby. They tried to apprehend the

appellant but he, while showing the pointed object in his hand and

giving threats, ran away. Due to fear, he was not chased by them. In

the meantime, PW-5 (Gulshan Kumar) also arrived. It is further stated

that they took Satya Pal to Vohra Nursing Home, Rajouri Garden but,

as no doctor was available there, they took him to Rana Nursing Home.

There, the doctor examined him and treated him, but Satya Pal died at

9.51 a.m. The doctor at Rana Nursing Home informed the police. As

per Exhibit-PW-1/A, PW-1 (Kundan Lal) claimed that his brother

Satya Pal had been killed deliberately by the appellant and sought that

legal action be taken against him.

5. On the basis of this statement, the ruqqa was prepared by PW-24

(Manohar Lal Sharma), the investigating officer in this case, and sent to

the police station through PW-9 (Constable Shambhu Dayal).

Thereafter the FIR was registered.

6. After the inquest proceedings, the dead body was sent for post

mortem examination etc. Statements of the witnesses were recorded.

A search was made for the appellant who was apprehended in a park

near the ganda nala. The appellant is alleged to have made a

disclosure statement disclosing the fact of where he had thrown the sua

in the ganda nala. However, the sua was not recovered. At this

juncture, it may be pointed out that no attempt for making the recovery

or taking the appellant to the place from where the sua could be

recovered appears to have been made. The post mortem report was

obtained and thereafter the CFSL report was also received. The

challan was filed. Charge under Section 302 IPC was framed and since

the appellant pleaded not guilty, the trial was undertaken.

7. The prosecution examined as many as 25 witnesses in support of

its case. The Section 313 CrPC statement of the appellant was recorded

and the defence also examined two witnesses, namely, DW-1 (Smt.

Vimla, appellant‟s mother) and DW-2 (Smt. Sunita, appellant‟s sister).

8. The main thrust of the defence case before the trial court was that

the entire prosecution case hinges upon the solitary testimony of PW-1

(Kundan Lal). The other eye witnesses, PW-2 (Narain Dass), PW-3

(Shankar Lal), PW-5 (Gulshan Kumar) and PW-7 (Satbir) have all

indicated that they did not see anyone inflicting the injuries and,

therefore, have not supported the prosecution case. The learned

defence counsel also submitted before the learned Additional Sessions

Judge that even the testimony of PW-1 (Kundan Lal) cannot be

believed because of serious contradictions. His testimony is not of

such a quality that it could be made the basis of a conviction without

seeking any other corroborative evidence. The learned Additional

Sessions Judge rejected the plea raised by the defence counsel and took

the view that although there were contradictions in the testimony of

PW-1 (Kundan Lal), they were not so material as to be fatal to the

entire prosecution case. The court was also of the view that PW-1

(Kundan Lal) was the uncle of the appellant and there was no reason

why he would depose against his own nephew naming him to be the

assailant of his brother. The learned Additional Sessions Judge also

brushed aside the fact that the sua which was the so-called weapon of

offence had also not been recovered. He noted the fact that PW-25

(Dr L.T. Ramani), who conducted the post mortem examination, had

clearly observed that all the nine injuries on the person of Satya Pal

were puncture wounds. Such wounds were only possible by a weapon

like a sua and, therefore, according to the learned Additional Sessions

Judge, non-recovery of the weapon of offence from the possession of

the appellant or at his instance was of no consequence. Consequently,

the learned Additional Sessions Judge, believing the testimony of PW-1

(Kundan Lal) to be a true eye witness account, found the appellant

guilty for the offence of murder punishable under Section 302 IPC.

9. Before us, the learned counsel for the appellant reiterated the

arguments advanced by the defence counsel before the trial court. The

sum and substance of his arguments was that there is only one witness

and that is PW-1 (Kundan Lal), who appears to support the prosecution

case. All the other eye witnesses have either turned hostile or have not

otherwise supported the prosecution case. The testimony of PW-1

(Kundan Lal), on which the entire prosecution case hinges, is full of

contradictions. The nature of contradictions is such that serious doubts

are cast on the truthfulness of the account given by PW-1 (Kundan

Lal). In such a situation, the conviction of the appellant cannot be

upheld on the basis of the solitary evidence of PW-1 (Kundan Lal),

which is not corroborated by any other prosecution evidence. The

learned counsel for the appellant also argued that the entire case was

manipulated and framed with the assistance of the prosecuting agency.

It was submitted that the appeal ought to be allowed and the conviction

and the order on sentence be set aside.

10. Mr Sunil Sharma, appearing on behalf of the State, fully

supported the impugned judgment and order on sentence. It was his

contention that the trial court has gone into the evidence in great detail

and has examined not only the testimony of the prosecution witnesses,

but also those of the defence witnesses, threadbare, and it has then

come to the conclusion that the testimony of PW-1 (Kundan Lal) was

fully reliable. According to Mr Sunil Sharma, the victim, the accused

and many of the witnesses belong to the same family. He submitted

that there may be contradictions of a minor nature with regard to the

D.D. entries, but they do not affect the merits of the case. He also

submitted that the motive for the murder also stood established.

According to him, the motive was supplied by the strained relations

between the appellant and his father as also the fact that his father had

been thrown out of his house by the appellant and that his father had

been supported and given a place to stay by his uncles and in particular

Satya Pal. This circumstance annoyed the appellant who harboured

deep animosity against Satya Pal. Mr Sunil Sharma submitted that this

was the motive for the appellant committing the murder of his uncle.

11. Mr Sunil Sharma also submitted that the enmity was actually

between the appellant and the deceased Satya Pal and not between the

appellant and PW-1 (Kundan Lal). This being the position, according

to him, there was no reason as to why PW-1 (Kundan Lal) would

falsely implicate the appellant. Mr Sharma submitted that if the

testimony of PW-1 (Kundan Lal) is to be regarded as being above

board, then the prosecution case stands established irrespective of

minor contradictions. He submitted that the trial court has rightly

concluded that the testimony of PW-1 (Kundan Lal) with regard to the

actual incident is believable. That being the case, according to Mr

Sharma, no further corroboration is necessary and the conviction of the

appellant has rightly been based solely on such testimony. It was,

therefore, submitted by Mr Sharma that the appeal be dismissed and the

conviction and sentence be upheld.

12. Since PW-1 (Kundan Lal) is the key to this case, let us see what

he has stated with regard to the alleged incident. In his examination-in-

chief, he has, inter alia, stated as under:-

"The marriage of my brother Gulshan was scheduled to take place on 29th November, 1985. We had hired petromax and mare etc. from Narain Dass Arora C-183, New Moti Nagar. Prior to 19.11.1985 we had agreed with Narain Dass Arora, petromax owner that we will come to his shop on the morning of 19th November, 1985 and there we will finalise the whole programme. On 19.11.1985 at about 8.30 AM I started from my house to reach Narain Dass Arora, the petromax owner and reached there within 5-6 minutes. When I reached there near about that very time Sat Pal also came there. While I and Sat Pal were talking to Narain Dass Arora, Rajiv @ Bawa came out of his house No. C-187, New Moti Nagar and approached us and started abusing Sat Pal. One or two minutes thereafter went into his house and returned again within about two minutes to Narain Dass Arora‟s shop. When he came at the shop for the second time he was holding a pointed object of iron and immediately on reaching there he started stabbing

Sat Pal by the said pointed object. At that time I was standing near thiya of Narain Dass. Accused stabbed 7-6 times at one stretch on the stomach, chest and throat of Sat Pal by the said pointed object. Before the accused had started stabbing Sat Pal my younger brother Gulshan had also arrived there at the spot and was present there at the time of occurrence. We and other persons present at the spot tried to apprehend the accused but he waiving the sua while holding in his hand and threatening us fled towards Milan Cinema. There was bleeding from the body of Sat Pal on account of injury but the blood was soaked by his clothes and did not trickle down the ground. Gulshan had come to the shop by car. I and Gulshan put Sat Pal into the car and took him to Vohra Nursing Home Rajouri Garden but no doctor was available there. Therefore, at that very time we took Sat Pal to a nearby Rana Nursing Home Rajouri Garden. The doctor examined Sat Pal there but Sat Pal died at 9.51 AM. The concerned doctor of Rana Nursing Home informed the police after death of Sat Pal and after some time the police arrived there. The police recorded my statement at the Nursing Home itself which was read over to me and I appended my signature thereto. My report is Exhibit Pw1/A. The police completed inquest proceedings and the dead body was taken to the police station on a police vehicle. Inquest report was prepared in my presence and I signed the same. I identified the dead body. Inquest report is Exhibit PW1/B and my statement identifying the dead body is Exhibit PW1/C. Later, the police went to the spot also and I told them the place of occurrence. The site plan was prepared by the police."

13. While PW-2 (Narain Dass) admitted that he did repair work for

petromax etc. for marriages at the pavement near his house C-183, New

Moti Nagar and that deceased Satya Pal had booked petromax from

him in connection with the marriage of his brother, he also stated that

he had not seen the appellant Rajiv inflicting injuries on any person.

He stated that he did not know anything about the occurrence of this

case. Thereafter, PW-2 (Narain Dass) was treated as a hostile witness

and was cross-examined by the learned Additional Public Prosecutor

(APP). He was also cross-examined by the defence counsel and in the

course of such cross-examination, he stated that it was correct that on

16.11.1985, the younger son of Jagdish, who was his grandson, had

died and, therefore, he had not opened his shop on 19.11.1985.

14. The next person mentioned in the testimony of PW-1 (Kundan

Lal), apart from the deceased Satya Pal and the appellant Rajiv, is PW-

5 (Gulshan Kumar). It must be remembered that PW-5 (Gulshan

Kumar) is Kundan Lal‟s brother and is also an uncle of the appellant

Rajiv Katyal. In fact, the appellant Rajiv Katyal is the son of PW-12

(Jagdish Lal), whose four brothers include the deceased Satya Pal, PW-

1 (Kundan Lal), Rajpal and PW-5 (Gulshan). As per PW-1 (Kundan

Lal) "before the accused had started stabbing Satya Pal my younger

brother Gulshan had also arrived there at the spot and was present there

at the time of occurrence". This is a clear improvement from his

statement (Exhibit-PW-1/A) where it is not so stated. In fact, in PW-

1/A, it is recorded that Gulshan Kumar arrived at the spot after the

stabbing incident was over and after the appellant is alleged to have run

away. Now, let us compare this testimony with what PW-5 (Gulshan

Kumar) has stated. In his examination-in-chief, PW-5 (Gulshan

Kumar) stated that on 19.11.1985 at about 9.30 a.m., he had gone to see

Narain Dass ghori wala at C-183, New Moti Nagar in connection with

his marriage in a car borrowed from his friend. He had gone to meet

Narain Dass ghori wala for fixing the time for the mare and the

petromax for his marriage. He further stated that when he reached the

shop of Narain Dass, he heard an alarm there "mar gaya... mar gaya"

and on reaching the spot, he found his brother Satya Pal in an injured

condition. Importantly, he stated that he had not seen the person who

had injured Satya Pal at the time when he had injured Satya Pal. He

stated that he and his brother Kundan Lal took Satya Pal in an injured

condition in a car to Vohra Nursing Home where no doctor was

available. Then, they took him to Rana Nursing Home and at Rana

Nursing Home, the doctor concerned examined Satya Pal and declared

him to be dead. The doctor informed the police and the police came

over to Rana Nursing Home. However, this witness was declared to be

hostile and was cross-examined by the learned APP. Thus, he does not

support the version given by PW-1 (Kundan Lal).

15. There are other contradictions in the testimony of PW-1 (Kundan

Lal) which have already been acknowledged by the trial court. Those

contradictions related to the time, the place where PW-1‟s (Kundan

Lal‟s) statement was recorded by the police, the time at which the

photographs were taken, etc. In fact, PW-1 (Kundan Lal) had so

contradicted himself with regard to the recording of his statement

Exhibit-PW-1/A that the court had to put a question to him to the

following effect:-

"Court Q:- In your statement dated 02.06.1986 recorded in the court, you have stated that the police had recorded your statement Exhibit PW1/A at Rana Nursing Home and you had signed on that. Today, in your statement in the court, you have stated that you signed on Exhibit PW1/A at the spot. Thus you have made two contradictory statements. Can you tell if out of these two statements, which one is correct and which is wrong because both the statements cannot be two (sic: true) at the same time ?

A. Today‟s statement of mine is correct. On Exhibit PW1/A I had in fact signed at the spot. My earlier statement that I had signed on Exhibit PW1/A at Rana Nursing Home is not correct. I had made that statement due to confusion/ misunderstanding."

16. PW-3 (Shankar Lal), who was cited as a public witness also

turned hostile. He stated that he had noticed a crowd near Punjabi

Bagh Bridge. He also stated that he had not seen the appellant Rajiv

inflicting injury on the person of anybody. He also stated that some

people in the crowd were telling that a Sikh had run away after injuring

someone and that he had seen him fleeing at a far distance. He further

stated that the person with whom the fight with the Sikh had taken

place had gone towards Punjabi Bagh on a rickshaw. Obviously, this

witness was also declared to be hostile and was cross-examined by the

learned APP. PW-4 (Jagdish Lal) is the son of PW-2 (Narain Dass).

He was declared to be hostile inasmuch as he did not support the

prosecution case with regard to the preparation of the receipt dated

06.10.1985 with respect to the booking of the petromax and the mare in

connection with the marriage of Gulshan Kumar. According to him,

the receipt was prepared later at the instance of the police. In cross-

examination by the defence counsel, he further stated that 3-4 days

prior to the occurrence, i.e., on 16.11.1985, his son had died. He

produced the certificate marked DA in respect of his son‟s death. He

further stated that on account of the said death, their shop remained

closed on 19.11.1985.

17. PW-7 (Satbir Singh), who is also a public witness, indicated that

when he reached the shop of the mare and petromax near Milan

Cinema at about 8.45 a.m. or 9.00 a.m., he saw a crowd collected there

and that Satya Pal was bleeding. He also stated that he did not see

anybody inflicting the injuries on the person of Satya Pal deceased.

The said witness was also declared hostile and was cross-examined by

the learned APP.

18. From a review of the evidence on record, it is apparent that none

of the prosecution witnesses, who were said to have been eye

witnesses, other than PW-1 (Kundan Lal), have supported the

prosecution case. The entire edifice of the prosecution case rests on the

testimony of PW-1 (Kundan Lal). The learned Additional Sessions

Judge has believed the testimony of PW-1 (Kundan Lal) after arriving

at the conclusion that there was no occasion for PW-1 (Kundan Lal) to

have lied in court and falsely implicated his nephew for the murder of

his brother. The question that seems to have weighed heavily with the

learned Additional Sessions Judge was - Why would Kundan Lal lie

about the incident ? But this very question can be posed in respect of

the appellant‟s other uncle PW-5 (Gulshan Kumar) also. Why would

one uncle [PW-1 (Kundan Lal)] want to implicate the appellant and the

other uncle [PW-5 (Gulshan Kumar)] testify against the prosecution

case ? This is a question which is very difficult to answer, if at all.

But, the fact remains that it is the word of one witness PW-1 (Kundan

Lal) against the word of all the others. Furthermore, why did PW-1

(Kundan Lal) make an improvement in his testimony before court that

PW-5 (Gulshan Kumar) had arrived at the spot prior to the alleged

stabbing incident when, in his statement (Exhibit-PW-1/A), which he

claimed to be his true and correct statement, made to the police officer,

he had indicated that PW-5 (Gulshan Kumar) arrived at the scene after

the stabbing incident and after the appellant had fled from the scene ?

When this circumstance is read alongwith the other contradictions with

regard to the time when the photographs were taken; with regard to

whether they went to the police station at all with the dead body or not;

with regard to where PW-1 (Kundan Lal‟s) statement (Exhibit-PW-

1/A) was recorded - whether at the spot or at Rana Nursing Home -

serious doubts arise about the accuracy and truthfulness of the

testimony of PW-1 (Kundan Lal). There has also been a suggestion on

the part of the defence that PW-1 (Kundan Lal) was eyeing the

properties of the appellants father PW-12 (Jagdish Lal). Apart from

this, there are several gaps in the prosecution case. One of them is that

the car in which the injured Satya Pal is said to have been taken to the

hospital has not been identified or recovered. The second is that

although it is alleged that the appellant had made a disclosure statement

disclosing the place where he had thrown the sua in the ganda nala and

even a pointing out memo had been prepared, no attempt was made to

recover the said sua. The non-recovery of the sua, in these

circumstances, is certainly a factor which goes against the prosecution

case. There is also the circumstance that the inquest papers were not

sent alongwith the dead body for the purposes of post mortem, but were

sent later on. The body had been received at the place where the post

mortem was to be conducted at 08.15 p.m. on 19.11.1985. The papers,

however, were received at 9.00 a.m. the next day, i.e., on 20.11.1985.

19. There is another dimension to this case and that is whether the

injured Satya Pal arrived at Rana Nursing Home on his own or was he

accompanied by PW-1 (Kundan Lal) and PW-5 (Gulshan Kumar) ?

PW-13 (Dr S.P. Gogia of Rana Nursing Home) stated that the patient

came to the nursing home and expired. He informed the police.

Exhibit-PW-9/DB is some kind of a report written on the letter head of

Rana Nursing Home. The portion marked „X‟ which bears the name

Satya Pal son of „blank‟ and address 20/14, Punjabi (East) Bagh, T. No.

535369 P.P.; 503419 P.P. was clearly stated by PW-13 (Dr S.P. Gogia)

as not to have been written in his hand. He also stated that the portion

marked „Y‟ which contains the writing „motorcycle‟ which is scratched

out and beneath it „DIX 3344‟ is written, is also not in the hand of PW-

13 (Dr S.P. Gogia). The rest of Exhibit-PW-9/DB is stated to be in his

hand writing and bears his signature.

20. From these, the learned counsel for the appellant sought to draw

the inference that when Satya Pal came to the hospital in an injured

condition, the doctor was not aware of his name and address and that

was added later on. The further inference is that Satya Pal was not

accompanied by either PW-1 (Kundan Lal) or PW-5 (Gulshan Kumar)

inasmuch as if that had been the case, they would have certainly given

the name and address and would have also given his father‟s name.

The writing which indicates the motorcycle number was obviously

added much later on, but it is not known by whom. PW-13 (Dr S.P.

Gogia) stated that he cannot say as to why the said portion which was

marked „X‟ was written and he cannot say whether the patient came on

a motorcycle. Importantly, this witness stated in his cross-examination

that he did not meet any relative of the patient nor was he informed

about the history of the injured.

21. Considering the evidence on record and the totality of the

circumstances, we are of the opinion that the testimony of PW-1

(Kundan Lal) is not free from doubt. Apart from his testimony, as

already indicated above, there is no other evidence which conclusively

points towards the guilt of the appellant. Thus, the benefit of doubt has

to go to the appellant. Consequently, the impugned order / judgment

and the order on sentence are set aside. The appellant is acquitted of all

charges in this case. The appellant is on bail. His bail bond stands

cancelled and the sureties stand discharged.

The appeal is allowed.

BADAR DURREZ AHMED, J

V.B. GUPTA, J July 03, 2009 dutt