Sita Ram vs State
2009 Latest Caselaw 2526 Del

R-22


*        IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                 Date of Decision : 8th July, 2009


+                      CRL. APPEAL NO.53/2001


         SITA RAM                                ..... Appellant
                       Through:   Mr.M.L.Yadav, Advocate.


                                  versus


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

CORAM :-
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR


       (1) Whether reporters of local paper may be
           allowed to see the judgment?

       (2) To be referred to the reporter or not?             Yes

       (3) Whether the judgment should be reported
           in the Digest ?                                     Yes


PRADEEP NANDRAJOG, J. (Oral)

1. The involvement of the police for purpose of

registration and investigation of the instant case commenced,

when at 8:55 PM on 15.2.1995, DD Entry No.22-B was

recorded by the duty officer at PS Sarai Rohilla about a quarrel

in a jhuggi abutting clinic of Dr.Rajiv at Shahzada Bagh, Sarai

Rohilla.

2. HC Jagan Nath and Const. Rameshwar went to the

spot and were soon followed by the SHO and 2 other police

personnel.

3. The SHO, Inspector Ran Singh PW-22, found Vishwa

Nath PW-7, at the spot and recorded his statement Ex.PW-7/A.

He went to Hindu Rao Hospital where the injured had been

removed to and learnt that the injured had died. He i.e.

Inspector Ran Singh made an endorsement Ex.PW-22/A

beneath the statement Ex.PW-7/A directing the duty officer to

register an FIR. Since it was disclosed by PW-7 in his

statement that the appellant had inflicted knife blows on the

person of the deceased and since the forward movement of

the investigating officer to the hospital where the deceased

was removed resulted in further information that the deceased

had died, it was directed in the endorsement that case be

registered for an offence punishable under Section 302 IPC.

4. As recorded in the endorsement Ex.PW-22/A, the

same was forwarded to the police station at 11:10 PM

evidenced by DD No.28-A. The FIR was registered at 11:20

PM.

5. It is apparent that there is no time lag between the

receipt of information at the police station about the incident

and registration of an FIR pursuant thereto, keeping into

account the time which would be taken for the police

personnel to reach the spot where the crime was committed

and record the statement of Vishwanath and thereafter

proceed to the hospital where the injured was admitted and

obtain the MLC of the injured.

6. From the place where the offence was committed

i.e. the jhuggi at Daya Basti, Inspector Ran Singh collected

blood stained soil and earth control as recorded in the seizure

memo Ex.PW-7/B and Ex.PW-7/C. He prepared the site plan

Ex.PW-22/B with the assistance of Vishwa Nath PW-7,

recording therein the spot where the deceased had been

stabbed and the spot wherefrom PW-7 had witnessed the

crime. A photographer Const.Subhash Chand PW-15 was

summoned who took 8 photographs of the scene of the crime

being Ex.PW-15/1 to Ex.PW-15/8.

7. The person who was injured was named Sri Ram.

He was removed in a PCR Van by HC Islammudin to Hindu Rao

Hospital where he was declared brought dead. The dead body

of the deceased was seized by Inspector Ran Singh and sent to

the mortuary of Hindu Rao Hospital where Dr.C.B.Dabas PW-18

conducted the post-mortem and prepared the post-mortem

report.

8. We note that Dr.C.B.Dabas PW-18 has deposed in

Court on 31.7.2000 and has stated that he conducted the post-

mortem of the deceased, but unfortunately the post-mortem

report was not formally got proved and the effect thereof is

that the injuries which were noted on the person of the

deceased have to be culled out with reference to the

deposition of the witness, who we note, was not subjected to

any cross examination by learned counsel for the accused in

spite of opportunity granted. We may note that in the

impugned judgment, the learned Trial Judge has referred to

the post-mortem report as Ex.PW-18/A, but we find that the

original post-mortem report in the Trial Court Record has not

been assigned any exhibit mark. Even in the testimony of

Dr.C.B.Aggarwal, we find no mention to any such report being

exhibited.

9. In his deposition Dr.C.B.Dabas stated that the post-

mortem of the deceased conducted by him revealed to him

four injuries, two of which i.e. injury No.three and four were

fatal and were sufficient to cause death in the ordinary course.

The four injuries were as under:-

1. Incised wound over bridge of nose.

2. Incised wound over left side of nose.

3. A stab wound in the epigastric region on front

of abdomen.

4. A stab wound on left side iliacfossa on front of

abdomen.

10. He deposed, and as recorded in the post-mortem

report (though not proved), that the stab wounds pertaining to

injury No.3 and 4 had cut the small intestines as also the

interior venacava and the abdominal aorta.

11. Needless to state it was deposed to by him, as

recorded in the unproved MLC, that injury No.3 had traversed

12 cms deep and injury No.4 had traversed 10.5 cms deep.

12. During course of investigation, the police recorded

statements of Ram Bharat PW-1, Ram Narayan PW-5 and Shiv

Narayan PW-6 who were the residents of the jhuggi cluster and

told the police that they had witnessed the incident. They

named the appellant as the assailant of the deceased.

13. Thus, in all, the police claimed to have had four eye

witnesses being PW-1, PW-5, PW-6 and PW-7.

14. At the trial, PW-1 Ram Bharat, deposed that he was

resident of Jhuggi No.232-A, Daya Basti and on the day of the

incident he was sitting outside the jhuggi along with Hari Ram,

Shiv Narayan and Ram Narayan. Vishwa Nath PW-7, who is his

uncle came there. One Rajender and the deceased were also

present. They requested him to permit them to stay in his

jhuggi. He told them to sit in the jhuggi and left for purchasing

vegetables as it was getting dark. When he returned he saw

people running and he also ran away.

15. PW-1 resiled from his statement recorded by the

investigating officer under Section 161 Cr.P.C. He was

confronted with his statement and he denied having ever told

the investigating officer that he saw the appellant stab the

deceased Sri Ram.

16. Ram Narayan PW-5 deposed that he was a resident

of Jhuggi No.231-A which was owned by his brother and on the

day of the incident when he was cooking meals, a villager

came to him and handed over a letter to be delivered to

Vishwa Nath PW-7. That Vishwa Nath and the deceased Sri

Ram came to him and took the letter and went to the house of

Ram Bharat. On some matter, a quarrel took place between

Sri Ram and Vishwa Nath on one side and the appellant on the

other side. Appellant Sita Ram came out shouting that he will

do away with the life of Sri Ram. Deceased was leaving the

spot but was caught from his collar by the appellant. The

deceased turned towards the appellant and the appellant

stabbed him with a knife on his abdomen twice.

17. Relevant would it be to note that during cross

examination PW-5, while clarifying on the issue, stated that he

had not seen what had happened inside the jhuggi and had

only heard noises of quarrel coming from within the jhuggi.

18. Shiv Narayan PW-6 deposed that he was present in

his jhuggi No.231-A, Daya Basti on 15.2.1995. That what

happened inside the jhuggi where the stab took place was not

known to him. Pertaining to what he had seen and heard he

deposed:-

"Accused Sita Ram present in Court today came out of his house and threatened Sri Ram who was accompanying Viswa Nath. I heard that accused ask deceased Sri Ram as to in what capacity he was asking him to vacate the jhuggi. Then the quarrel took place between the accused Sita Ram and deceased Sri Ram. I only saw when deceased Sri Ram fell down on the ground. When the people who gathered there started lifted Sri Ram they said that Sri Ram was stabbed by accused Sita Ram."

19. Vishwa Nath PW-7 supported the prosecution and

deposed facts which have formed the basis of the FIR i.e. his

statement Ex.PW-7/A. He deposed that when he was speaking

with the deceased Sri Ram, the accused demanded that Sri

Ram should go and bring liquor and upon refusal, caught hold

of the hand of Sri Ram and started twisting his arm.

Immediately thereafter he took out a knife and inflicted knife

blows on the left and right side of the abdomen of Sri Ram

saying that he i.e. the accused will kill Sri Ram. That he tied a

muffler on the abdomen of Sri Ram and immediately contacted

the police. The PCR Van came and took the injured Sri Ram to

the hospital. He stayed back and when the investigating

officer came gave his statement Ex.PW-7/A.

20. Vide impugned judgment and order dated

4.11.2000, the learned Trial Judge has held that from the

testimony of PW-1, PW-5, PW-6 and PW-7 it was apparent that

PW-7 was an eye witness. That PW-5 and PW-6 corroborated

the presence of each other and the presence of PW-7 as also

the deceased and the accused at the place where the crime

was committed. Holding that nothing was brought out to

discredit the testimony of PW-7, with reference to the post-

mortem report and the testimony of Dr.C.B.Dabas; noting the

injuries recorded during the post-mortem of the deceased,

learned Trial Judge has returned a finding that the evidence

establishes that the appellant, with the intention of causing

bodily injury which were caused on the person of the deceased,

acted to do so, and the injuries caused being opined to be

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

committed the offence of murder.

21. Learned counsel for the appellant urges that the

conduct of PW-7 of not accompanying the deceased to the

hospital is a suspicious conduct and therefore there is a serious

doubt whether at all he was present with the deceased when

the deceased was injured. Learned counsel urges that as per

the testimony of PW-7, the deceased was his friend. Counsel

urges that the normal conduct of a friend who has seen his

friend being injured would be to rush the injured friend to the

hospital and not stay back at the spot waiting for the police to

record his statement.

22. We are hardly impressed with the argument urged

by learned counsel for the appellant. Our reason for the same

is that PW-7 did an act to remove the injured to the hospital.

He did so by informing the police. The police responded by

sending a PCR Van. It is not a case where PW-7 is proved to be

the owner of a vehicle which was stationed nearby. We could

have appreciated the submission if there was evidence that

PW-7 had means of transport to immediately remove the

deceased to the hospital. That apart, how different witnesses

react in different circumstances stands catalogued in various

decisions and we need not make an inventory of the same.

Indeed, human conduct, reaction and action, on seeing a

crime, differs from person to person.

23. The conduct of PW-7 in informing the police and

awaiting a PCR Van to reach the spot where the crime took

place is not an unnatural conduct. We may only emphasize the

fact that the place where the crime took place is a slum cluster

where public transport is not easily available.

24. Though the learned Trial Judge has referred to the

testimony of PW-5 and PW-6 to corroborate the presence of

PW-7 as also the presence of the accused and the deceased at

the place where the crime took place, but we note that the

evidentiary worth of their testimony is much more.

25. From the testimony of PW-5 it is apparent that he

had heard a quarrel. Since the quarrel was inside the jhuggi he

may not have seen what had happened inside, but his

testimony certainly establishes that the appellant had walked

out of the jhuggi inside which the deceased was stabbed.

26. We may hasten to add that at one stage i.e. in para

12 of the impugned decision, the learned Trial Judge has found

the testimony of PW-5 convincing and truthful vis-à-vis the

earlier part of his deposition.

27. Pertaining to the testimony of PW-6, it is apparent

that the only thing which he deposed not having seen is the

actual act of stabbing. But, he has categorically deposed that

a quarrel took place between the accused Sita Ram and

deceased Sri Ram. What he states is that since a crowd had

gathered, he could not witness the full acts pertaining to the

quarrel and that after the appellant i.e. the accused left, he

heard the people who had gathered at the spot saying, that the

appellant had stabbed Sri Ram.

28. Statements made by by-standers, at the time when

an act is being committed, are admissible evidence under

Section 6 of the Evidence Act and hence the evidentiary value

of the testimony of PW-6 is much more that what has been

held to be by the learned Trial Judge.

29. From the testimony of PW-5, PW-6 and PW-7 we find

corroboration to each other regarding the presence of the

appellant and the deceased at the jhuggi as also the presence

of the witnesses. Their testimony corroborates each other on

the point that the appellant and the deceased had a quarrel.

The quarrel being the demand by the appellant qua the

deceased to purchase liquor and the refusal by the deceased

to do so.

30. The quarrel is not of a kind where the origin is not

unknown. The quarrel is not of a kind where the deceased

contributed or aggravated to the same. The quarrel is a one

sided quarrel, being an unreasonable demand by the appellant

and refusal to succumb thereto by the deceased.

31. It is apparent that the evidence on record

establishes that when the deceased refused to purchase liquor,

the appellant got infuriated and without any provocation and

without anything being contributed by the deceased to

aggravate the situation; to give vent to his anger or hatred, the

appellant took out a knife and gave 4 blows to the person of

the deceased, 2 of which have proved fatal.

32. Evidence establishes that the appellant yielded the

knife intending to cause injuries on the person of the deceased.

2 of the 4 injuries have been proved to be sufficient in the

ordinary course of nature to cause death.

33. Part 3 of Section 300 IPC is clearly attracted.

37. The ferocity of the blows is evidenced from the

depth of the injury No.3 and 4 and as noted hereinabove.

39. We concur with the view taken by the learned Trial

Judge.

40. The appeal is dismissed.

41. Vide order dated 17.1.2006 the appellant was

admitted to bail. The bail bond and surety bond are cancelled.

The appellant is directed to surrender and suffer the remaining

sentence, which we note is to undergo imprisonment for life.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

JULY 08, 2009 mm