Anish @Monu vs State
2009 Latest Caselaw 2791 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of Decision : July 23, 2009

+                   CRL. APPEAL NO.341/2001

       ANISH @MONU                           ...Appellant.
               Through : Mr.R.P.Khatana, Advocate.

                                  VERSUS
       STATE                                ...Respondent
                    Through : Mr.Pawan Sharma, APP.

                    CRL. APPEAL NO. 342/2001

       SATENDER @SEETU                   ...Appellant.
               Through : Mr.R.P.Khatana, Advocate.

                                  VERSUS
       STATE                                ...Respondent
                    Through : Mr.Pawan Sharma, APP.

                    CRL. APPEAL NO. 343/2001

       KRISHAN KUMAR                      ...Appellant.
                Through : Mr.R.P.Khatana, Advocate.

                                  VERSUS
       STATE                                ...Respondent
                    Through : Mr.Pawan Sharma, APP.

                    CRL. APPEAL NO. 381/2001

       SURESH KUMAR @LUCHRA                   ...Appellant.
                Through : Mr.R.P.Khatana, Advocate.

                                  VERSUS
       STATE                                ...Respondent
                    Through : Mr.Pawan Sharma, APP.

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

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

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

Crl.Appeal Nos.341, 342, 343 & 381/2001                Page 1 of 13
      3. Whether the judgment should be reported in the
        Digest?                               Yes


PRADEEP NANDRAJOG, J. (ORAL)

1. Vide impugned judgment and order dated

10.5.2001, appellant Suresh Kumar @ Luchra has been

convicted for the offence of having murdered Vijender son of

Khyali Ram. All the appellants have been convicted for the

offence of causing simple hurt to Harish as also for wrongfully

confining Harish i.e. for the offence punishable under Section

323 IPC and the offence punishable under Section 341 IPC. A

co-accused Sunil died during trial. We may clarify that since

there were five accused and the allegation against them was of

having formed an unlawful assembly, the conviction for the

offence of simple hurt and wrongful confinement is with the aid

of Section 149 IPC. As per the impugned decision, since the

object of the unlawful assembly was to cause hurt to Harish,

the act of accused Suresh Kumar of stabbing the deceased,

who had intervened later on when Harish was being beaten,

has been held to be the individual act of Suresh Kumar and not

the object of the unlawful assembly or within the contemplation

of the other members of the unlawful assembly.

2. At 1959 hours on 16.4.1997 DD No.44-B, Ex.PW-

16/A, was recorded at PS Najafgarh that a person has been

stabbed and was lying in an injured condition at the bus stand

of village Chhawla. SI Shyam Pal Singh PW-17 accompanied by

Const. Ashok reached the spot and on learning that the injured

had been removed to DDU Hospital proceeded to the hospital.

3. At the hospital the injured named Vijender was

brought in a Maruti van by Subhash Chand PW-5, Khyali Ram

PW-1 and Samai Singh PW-4. Khyali Ram is the father of

Vijender and Samai Singh is his brother. Dr.Sanjiv Vashisht

was on duty in the emergency of DDU Hospital and he

prepared the MLC Ex.PW-13/A of Vijender, noting therein that

the patient was dead. Being relevant, it may be noted that in

the MLC it has been recorded that the patient Vijender has

been got admitted by his father.

4. Narender Kumar PW-2, a resident of village Chhawla

was also present at the hospital and his statement Ex.PW-2/A

was recorded by SI Shyam Pal Singh PW-17. The said

statement has formed the basis of the First Information Report

and as recorded in the endorsement Ex.PW-17/B beneath the

statement, the same was dispatched from the hospital at 11:30

PM. The FIR in question has been registered at 0:30 hours on

17.4.1997. In the statement Ex.PW-2/A, Narender stated that

he and his friend Harish were standing at the bus stop of

village Chhawla when at 7:30 PM the five accused came there

and on seeing Harish, started slapping and kicking him. He

intervened to save Harish. Even he was beaten, being given

blows. His brother Vijender happened to come to the bus stop

and intervened to save him and Harish. All of a sudden, Suresh

caught Vijender by the neck and said that he would teach him

a lesson and in a flash took out a knife from his pant pocket

and stabbed Vijender in the chest and all ran away. They took

Vijender to the clinic of Dr.Lakra who told them to remove the

injured to a government hospital. Subhash Chand, a resident

of the village removed Vijender to the hospital in his van and

was accompanied by their father.

5. Needless to state, evidenced by the statement

Ex.PW-2/A, Narender and Harish are vital eye-witnesses of the

prosecution. They have been examined as PW-2 and PW-3. It

is obvious that if the evidence establishes that PW-2 and PW-3

were present at the bus stop and Vijender was stabbed in their

presence and their testimony stands the judicial scrutiny, the

impugned decision would have to be upheld. This is the

position conceded at the Bar by learned counsel for the

appellants and the State.

6. We may note that the alleged weapon of offence

Ex.P-2 has been ostensibly got recovered after accused Suresh

Kumar was apprehended but we note that the knife recovered

is from an area accessible to the public and when the knife was

sent to Dr.Komal Singh PW-9, the autopsy surgeon, he gave an

opinion that the injury on the person of the deceased could not

be caused by the knife. The reason was the apparent

mismatch between the blade of the knife and the solitary

wound inflicted in the chest of the deceased, one end whereof

was obtuse and the other was elliptical. The post-mortem

report Ex.PW-9/A shows that the blow was inflicted at a spot

5.5 cm from the left nipple and 5 cm from midline.

Unfortunately, the heart got pierced resulting in cardiac arrest.

7. The author of the first information report namely

Narender Kumar PW-2 has stood by his statement which has

formed the basis of the FIR with the exception that whereas in

the FIR he does not state that accused Sunil and Krishan

caught the hands of his brother Vijender, he has so stated

while deposing in Court. In Court, while deposing as PW-2, he

has stated that Sunil and Krishan caught the hands of his

brother and thereupon Suresh took out the knife from his right

pant pocket and gave a knife blow on the chest of his brother.

8. We may note that Narender has been subjected to a

lengthy cross-examination and has successfully withstood the

same.

9. Harish Kumar PW-3 has also deposed on the same

lines as PW-2 and even he has stated that accused Krishan and

Sunil caught the hands of Vijender before Suresh could stab

him. But, Harish has deposed something more. After deposing

the facts till the stage Vijender was injured and the five

accused fled, Harish went on to depose as under:-

"The villagers came there and helped me to get into a truck and I reached Police Post Kapashera. My report was not recorded by the police of P.P.Kapashera and they directed me to go to PS Najafgarh. At that time, I was feeling pain and I went to a private doctor for

medical help. The police recorded my statement on 18.4.1997."

10. Pertaining to the incident disclosed by Harish till the

stage of the accused stabbing Vijender and running away,

Harish has spoken on the same lines as Narender including the

improvement made by Harish vis-à-vis his statement Ex.PW-2/A

of assigning a role of catching hold to Krishan and Sunil. We

may note that pertaining to said testimony of his, Harish has

also successfully withstood the cross-examination.

11. One would thus jump to the conclusion that nothing

more needs to be looked into and the appeals should be

dismissed. But this is not to be so and therefore our reasons

for the same.

12. The testimony of Narender and Harish Kumar till the

stage of the accused running away is identical and spans

sixteen lines on a typed sheet of paper and consists of about

200 words. Where a person deposes in a very cryptic manner

it indeed becomes difficult to demolish the testimony because

the witness says that he just remembers the core of the

incident. The law also requires the core to be considered

because embellishments here or there or variations here or

there are irrelevant, because of the time gap of the incident

and the deposition of a witness, resulting in possible memory

lapses.

13. In such situations it becomes critical to evaluate

whether at all the witness was present at the spot and saw

what he is telling about. Of course, one method is to contradict

the witness himself while cross-examining him or to show

contradictions in the testimony where there are more than one

witness. There is yet another method to test the presence of a

witness and the same is to look into the circumstances under

which the offence was committed and therefrom see whether

circumstances exist which deprobablize the very presence of

the witness at the spot.

14. It would be of importance to note that in the

statement Ex.PW-2/A, Narender has stated that after the

accused fled, Vijender was taken to the clinic of Dr.Lakra who

told them to take Vijender to a government hospital and

Subhash Chand removed his brother Vijender in a Maruti van to

the hospital and was accompanied by his father. Indeed, the

MLC Ex.PW-13/A of Vijender shows that Khyali Ram, father of

Vijender has brought him to the hospital.

15. Khyali Ram PW-1 has simply deposed as under:-

"On 17.4.1997 I identified the dead body of my son Vijender Kumar in Deen Dayal Upadhyay Hospital. I had received the dead body of my son Vijender Kumar vide memo Ex.PW-1/A which bears my thumb impressions at point „A‟."

16. We are surprised at the fact that the prosecution

has not examined Khyali Ram to make him testify any further

fact. Be that as it may, Khyali Ram has nowhere deposed of

Narender or Harish being present at the bus stop or near or at

the clinic of Dr.Lakra.

17. As per Narender, Subhash Chand was the man in

whose van his brother Vijender was removed to the hospital.

Subhash Chand PW-5 has deposed that when he reached the

bus stand of village Chhawla he saw Vijender on the ground in

the company of Khyali Ram and Samai Singh and they all put

Vijender in the Maruti van and took him to the hospital and

thereafter he went home.

18. It is important to note that Subhash Chand has

denied the presence of Narender or Harish at the bus stop

when he was cross-examined by the learned APP after being

declared a hostile witness.

19. Samai Singh PW-4, the brother of the deceased and

Narender, who was present at the spot, but after the incident

took place and before the injured was removed to the hospital,

and has been referred to by Narender in his statement Ex.PW-

2/A, deposed as under:-

"On 17.4.1997 I had identified the dead body of my brother Vijender Kumar @Vijay in the DDU Hospital. My statement in this regard is Ex.PW-4/A."

20. As we were surprised with the testimony of Khyali

Ram, we are equally surprised with the testimony of Samai

Singh. The prosecution has not made him speak a word about

the presence of anybody at the spot.

21. Before we draw the conclusions, which we feel are

the only conclusions possible with reference to the testimony of

PW-1, PW-4 and PW-5 qua the presence of PW-2 and PW-3 at

the spot, certain other relevant facts and circumstances need

to be noted.

22. The first and foremost fact which stares us is there

being no MLC pertaining to Narender being proved at the trial.

Now, as per Narender even he was beaten when he intervened.

The assailants were five. Assuming that the assailants gave

only slaps/fist blows or kicks to Narender, some injury, in the

least being tenderness of the tissue where the blow was

directed would have resulted. As per Narender and SI Shyam

Pal Singh PW-17, Narender was present at DDU Hospital. We

see no reason why Narender could not have got himself

medically examined at the hospital, for after all he was also the

victim of an offence and not only needed medical help but

could have brought on record of the hospital proof of his being

injured. If not more, a doubt arises in the judicial mind:

Whether at all Narender was beaten as claimed by him.

23. Turning to the testimony of Harish, we find that he

claims to have shown himself to a private doctor and gone

home. Who is that doctor is not known. We find that Harish

has got himself examined on 18.4.1997 i.e. two days after the

incident at Safdarjung Hospital. His MLC Ex.PW-11/A shows

that Harish was examined at Safdarjung Hospital on 18.4.1997

and himself gave the history of his wounds. The wounds noted

in the MLC are bruises in the back and tenderness in the back.

The history given by the patient himself i.e. Harish pertaining

to the cause of the injuries is: "Assault with wooden stick on

back and face". Harish has not deposed in Court of being

assaulted with sticks. His testimony in Court is that he was

given leg and fist blows by all the accused. It is apparent that

on 18.4.1997, to the doctor at Safdarjung Hospital Harish said

something else and in the Court he said something else qua

the assault on him. We further find it strange that Harish, who

as claimed by him was injured, did not accompany his

grievously injured friend i.e. Vijender in the van of PW-5 to the

hospital. To explain his afore-noted unnatural conduct, Harish

claims to have been helped to get into a truck by villagers and

his going to police post Kapashera where the police officers

present did not record his statement and directed him to go to

PS Najafgarh. Harish has not gone to PS Najafgarh. There is no

evidence of his having reached the police station. It is indeed

doubtful whether Harish was present and saw what he told. It

is indeed doubtful whether Harish received any injuries as

claimed. The simple injuries on Harish noted in Ex.PW-11/A can

well be self-inflicted or can be inflicted by a benevolent friend

to create false evidence.

24. We link ourselves back to para 21 above. What are

the conclusions which a logical mind would unhesitatingly

reach, keeping in view the facts noted in para 22 and 23 above

and the testimony of PW-1 Khyali Ram, his son Samai Singh

PW-4 and Subhash Chand PW-5.

25. There being no evidence that Narender received any

injuries, it is doubtful whether the claim of Narender of being

beaten at the spot is truthful. That Harish did not go to any

doctor and avail medical aid on 16.4.1997 is also suggestive of

the fact that even he did not receive any beating at the spot as

claimed by him. The post incident conduct of Harish renders it

highly suspect that he was at the spot where Vijender was

assaulted. The attempt of Harish to get himself examined on

18.4.1997 and bring on record proof of his being injured has

resulted in a messed up act committed by him inasmuch as, he

told the doctor, as recorded in the MLC Ex.PW-11/A, that he

received injuries when he was beaten by a wooden stick; his

claim in the Court being of given fist blows and kicks. Khyali

Ram is the person who has brought Vijender to the hospital,

evidenced by Vijender‟s MLC Ex.PW-13/A. The prosecution has

chosen not to make Khyali speak anything pertaining to how he

received information of his son being injured; who met him at

the spot and who helped him to remove his son to the hospital.

A suspicion arises in our mind, being that, neither Narender nor

Harish were present as claimed by them, for the reason had

the prosecution made Khyali speak more than what he did, the

prosecution feared that Khyali would spill the truth. In this

connection the testimony of Subhash Chand PW-5 assumes

importance because he speaks of only Khyali Ram and Samai

Singh being seen by him near the body of Vijender when he

first saw Vijender lying near the bus stop and thereafter with

the help of Khyali Ram and Samai Singh removed Vijender to

the hospital.

26. The incident has taken place in a rural village in the

Union Territory of Delhi. Vijender was grievously injured at

7:30 PM is not in doubt. It is common knowledge that news of

a fellow villager being fatally stabbed travels very fast in

villages, where unlike in metropolitan cities, kinship is deeply

rooted. It appears that Narender got news of his brother being

injured and removed to DDU Hospital. He reached the hospital

and learnt that his brother had died. He did not witness his

brother being injured.

27. When a near and/or a dear one is stabbed on a

public street and as a result thereof he dies, every human mind

would reflect upon the past and a question would arise in said

mind as to who could possibly be the perpetrator of the crime.

The names of all those with whom relations were inimical

would surface in the mind. The fertile human mind starts

thinking and very soon the thought turns into a belief and one

starts believing that the belief is the truth. The accused are

residents of the same village and the possibility of some

previous misunderstanding, grievance or ill-will between the

accused and Narender or Harish cannot be ruled out and hence

the version of Narender and Harish that the accused had

stabbed Vijender.

28. It is unfortunate that a young life has been lost, but

there are enough circumstances wherefrom it becomes

doubtful whether Narender or Harish were present at the spot

as claimed by them. The evidence on record has germinated a

seed of suspicion and hence a doubt in the judicial mind

regarding the guilt of the appellant and hence the appellants

are entitled to the benefit of doubt.

29. The appeals are allowed. The impugned judgment

and order dated 10.5.2001 convicting the appellants is set

aside. The appellants are acquitted of the charges framed

against them. The order of sentence dated 11.5.2001 is also

set aside.

30. The appellants are on bail. Their bail bonds and

surety bonds are discharged.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

July 23, 2009 Dharmender