Parmesh Kumar vs State
2009 Latest Caselaw 773 Del

            THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment delivered on: 06.03.2009

+ CRL APPEAL No. 52/1993


PARMESH KUMAR                                            ... Appellant

                                   - versus -

STATE                                                    ... Respondent

Advocates who appeared in this case:

For the Appellants        : Mr Sanjeev Sharma
For the Respondent/State : Mr Sunil Sharma, APP

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, Parmesh Kumar, has been found guilty of the

offence punishable under Section 302 IPC by the learned Additional

Sessions Judge, New Delhi by virtue of his judgment dated 27.02.1993.

The order on sentence is also dated 27.02.1993. The appellant was

sentenced to undergo rigorous imprisonment for life. The appellant is

aggrieved by the said judgment and order on sentence.

2. The charge against the appellant was framed by the

Additional Sessions Judge on 08.08.1988. In terms of the charge, the

appellant was accused of causing the murder of Aditya, son of

Sh. Brahma Shankar and thereby having committed the offence

punishable under Section 302 IPC. It was alleged that the appellant

committed the said murder on 28.12.1987 at about 9:05 am at house

No. A-195, J. J. Colony, Khan Pur, New Delhi within the jurisdiction

of Police Station Ambedkar Nagar.

3. The prosecution case is that on 28.12.1987 at about 10 am

duty Constable Jai Prakash at Safdarjang Hospital informed the Police

Station Ambedkar Nagar on telephone that one Aditya had been

admitted in the hospital in an injured condition by one Anil Kumar. On

receipt of this information DD No. 9-B was recorded and was marked

to ASI Bal Kishan, who along with Constable Satbir Singh went to the

hospital. Anil Kumar (PW10), who had got the injured Aditya

admitted in the hospital, met ASI Bal Kishan and made a statement

(Exhibit PW9/B) to the effect that on 28.12.1987 at about 9 am he

along with his friend Aditya (deceased) went to meet the appellant

(Parmesh Kumar) to collect his balance amount of Rs 100/-. In

connection with this, the appellant picked up a quarrel with PW10 Anil

Kumar and Aditya and abused them. During the altercation, the

appellant, with the intention of killing, gave a blow with a pair of

scissors on Aditya‟s chest. As a result of this blow Aditya‟s chest

started bleeding. It is further revealed in the statement Exhibit PW9/B

that thereafter Aditya was admitted in an injured condition in

Safdarjang Hospital.

4. On the basis of this statement a case under Section 307 IPC

was registered and the investigation was handed over to SI Mehar

Chand, who visited the spot, prepared the site plan and recorded the

statements of some of the witnesses. On 29.12.1987 Aditya was

declared fit for statement and his statement under Section 161 Cr. P.C

was allegedly recorded, though the original statement was not produced

before the trial court as it was allegedly not available. Aditya was

discharged from the hospital on 31.12.1987. The appellant was

arrested on 30.12.1987. It is alleged that during his police remand he

made a disclosure statement regarding the weapon of offence, namely,

the pair of scissors but the same could not be recovered. On

01.01.1988, Aditya was again brought to the hospital but he was

declared as "brought dead". The FIR was converted from one under

Section 307 IPC to one under Section 302 IPC. On 02.01.1988 the

inquest proceedings were conducted and the body was sent for post

mortem examination. Cause of death was opined to be shock and

haemorrhage due to ante mortem injury to the lung which was

sufficient to cause death in the ordinary course of nature and was likely

to be caused by a sharp penetrating weapon. Clothes of the deceased

which had been sent to the CFSL, on chemical analysis revealed human

blood of „O‟ group. After completion of investigation the police

submitted the challan against the appellant under Section 302 IPC. As

already indicated above, the appellant was charged under Section

302 IPC, to which he pleaded not guilty and claimed trial.

5. In all 24 witnesses were examined but there is only one

alleged eye witness, namely, PW10 Anil Kumar. In his Section

313 Cr. P. C. statement, the appellant admitted that he was a tenant in

house No. D-56, J. J Colony, Khan Pur owned by PW18 Sher Singh

(father of PW10 Anil Kumar) during the months of September, October

and November, 1987 at the rate of Rs 200 per month. The appellant

denied that any amount of rent was due against him and he completely

denied his involvement in the alleged incident and stated that he had

been falsely implicated. No defence evidence was led.

6. We have heard the counsel for the parties and we feel that

the entire case turns on the testimony of the sole eye witness PW10

Anil Kumar. If the testimony of PW10 is to be believed, then the

complicity of the appellant would stand established. It is only

thereafter that the alternative arguments submitted by the learned

counsel for the appellant with regard to the appellant being involved

only in the minor offence under Section 326 or Section 304 Part-II IPC

would come up for consideration. If, however, we are of the opinion

that the testimony of PW10 Anil Kumar cannot be relied upon, then the

appellant would be entitled to acquittal. In that event, the alternative

arguments would become irrelevant. It is, therefore, necessary to

scrutinize the testimony of PW10 Anil Kumar with care and in detail.

For this purpose, it would be necessary for us to compare his testimony

in Court with his statement under Section 161 Cr.P.C (Exhibit PW9/B).

This would give us an indication as to whether his testimony in Court

has been embellished and/ or materially improved so as to secure the

conviction of the appellant.

7. In Exhibit PW9/B Anil Kumar stated that at about 9 am on

the fateful day he and his friend Aditya went to meet Parmesh Kumar

to collect "his/ their" balance of Rs 100 from him. However, in the

examination-in-chief in Court PW10 Anil Kumar stated that Parmesh

Kumar (the appellant herein) was his father‟s tenant and that he had

been paying rent at the rate of Rs 200 per month. He also stated that on

28.12.1987 at 9 am they had gone to collect the balance amount of

Rs 100 on account of remaining rent. It is clear that the two

statements, one under Section 161 Cr. P.C and the other the testimony

in Court, are at variance on this point. While Exhibit PW9/B does not

reveal as to how the amount of Rs 100 was recoverable from the

appellant, the testimony in Court indicates that it was on account of

balance rent inasmuch as the appellant was his father‟s tenant. The

factum of tenancy is not mentioned in Exhibit PW9/B. Of course, this

variance by itself is not material inasmuch as it is established that the

appellant was a tenant of PW10 Anil Kumar‟s father.

8. Again, in Exhibit PW9/B there is no mention of any dialogue

between Aditya and the appellant whereas in examination-in-chief,

PW10 stated that when he demanded money from the appellant, the

appellant picked up a quarrel and started abusing him and his friend

Aditya and it is at that point of time that Aditya questioned the

appellant as to why was he abusing him when the dispute was between

the appellant and Anil Kumar.

9. While in Exhibit PW9/B it is merely stated that a quarrel and

an altercation took place and that the appellant, with the intention of

killing, gave a blow with a pair of scissors on Aditya‟s chest, in the

testimony of PW10 before Court it is stated that because Aditya had an

exchange of words with the appellant, as indicated above, the latter got

enraged. The appellant then went inside his house and brought a pair of

scissors and gave a blow on Aditya‟s chest which started bleeding.

10. In Exhibit PW9/B there is no mention as to what happened to

Aditya on receiving the said blow. However, in PW10‟s testimony

before Court, it is indicated that Aditya became unconscious and fell

down.

11. Although in both Exhibit PW9/B as also his testimony

before Court PW10 Anil Kumar has stated that he admitted Aditya in

an injured condition in Safdarjang Hospital, the statement Exhibit

PW9/B does not indicate as to how and under what circumstances

Aditya was removed from the spot to the hospital. Even in his

examination-in-chief PW10 Anil Kumar has not revealed as to how

and in what manner he took Aditya to hospital. He has only indicated

that Aditya was unconscious at the time he took him to emergency

ward. This, of course, was not stated in Exhibit PW9/B. In his cross-

examination PW10 Anil Kumar stated that he took Aditya to hospital in

a three-wheeler scooter and that he had fetched the three-wheeler

scooter at a distance of less than half a kilometer from the spot. These

facts are not narrated in Exhibit PW9/B.

12. Exhibit PW9/B also does not reveal that PW10 Anil Kumar

hired the scooter running on the road and that it took him five minutes

to bring the scooter to the spot. It is obvious that since the mode of

transport itself had not been mentioned in his statement Exhibit

PW9/B, it was also not stated as to how he lifted Aditya in his arms

from the spot and placed him in the scooter and that he sat on one seat

and that Aditya was adjusted in the remaining seat in the rear. These

statements are only to be found in the cross-examination of PW10

before Court. Interestingly, PW10 Anil Kumar stated that he had lifted

Aditya in his arms from the spot and placed him in the scooter. He also

stated that Aditya‟s clothes were stained with blood but his (Anil

Kumar‟s) clothes did not receive any blood stains. Furthermore, in his

cross-examination PW10 stated that no other person came when he

shifted Aditya and that people had collected at the spot after the

stabbing, later on. He also revealed that the altercation between the

appellant and the deceased Aditya took place for hardly two-three

minutes and that he did not raise any alarm when the appellant stabbed

Aditya.

13. From the above, it is apparent that the story emanating from

the statement Exhibit PW9/B has been vastly improved and

embellished by PW10 Anil Kumar in his testimony before Court.

14. PW10 Anil Kumar was put a very dangerous question,

dangerous on the part of the defence, as to how the alleged stabbing

was done. However, that question put in cross-examination has

revealed an interesting answer and perhaps key to the case. The answer

given by PW10 Anil Kumar was that stabbing was done by holding one

grip and one blade in the hand and the remaining blade was stabbed on

Aditya which caused the injury. According to the learned counsel for

the appellant this is an impossibility. However, when this contention

was raised before the Trial Court, the said Court rejected the same, in

our view incorrectly, by holding that a scissor blow given with force by

holding one grip and one blade in one hand can very well cause a stab

wound as noticed on the chest of Aditya. We have given our anxious

consideration to this aspect of the matter and have tried to visualize as

to how the scissors held in the manner indicated by the said witness

could have at all caused an injury on the deceased Aditya. As

submitted by the learned counsel for the appellant, scissors work on the

principle of levers and we find that the grip or the handle portion of the

scissors is usually larger than or at least the same length as the blades.

Consequently, when the scissors are held in such a fashion where the

scissors are opened and one blade and one grip / handle is held together

in one hand, then the remaining blade and grip are also in a similar

position in the opposite direction. If the blade is shorter than or equal

in length to the grip then there is no possibility of the blade causing an

injury. This is the position with an average pair of scissors. The

prosecution has not presented a case to suggest that the scissors used in

the present case were of a special nature. It is for these reasons that we

do not agree with the conclusion of the Trial Court on this point.

Furthermore, the blade and grip / handle, if held in the manner

indicated, would, in all likelihood, have also resulted in some injury to

the hand of the person who stabbed. But, no injury was received by the

appellant. If PW10 Anil Kumar is to be believed, then the manner of

holding the scissors would not only negate the possibility of causing an

injury as suggested by him but, also rule out the appellant. In fact, this

is a pointer in the direction that PW10 Anil Kumar did not actually

witness the incident.

15. Another important aspect of the matter is that although the

appellant was taken into custody on 30.12.1987 and was in police

remand, the alleged weapon of offence was not recovered.

16. These circumstances have led us to believe that the testimony

of PW10 Anil Kumar cannot be made the sole basis for convicting the

appellant. Apart from the testimony of PW10 Anil Kumar, there is no

other evidence leading to the conviction of the appellant. Of course,

there is the post mortem report and the MLC which indicate that the

deceased Aditya received a stab injury on his chest, but that by itself

would not be sufficient to link the appellant with the injury. It is also

important to remember that while Aditya was in the hospital, no

statement was recorded which could have been termed as his dying

declaration. Aditya had been declared fit for statement on 29.12.1987

itself and in fact he was only given conservative treatment while he was

in the hospital. The wound did not even require stitches. His condition

was satisfactory and he was discharged on 31.12.1987 at about 12

noon. He was brought back as dead on 01.01.1988 at 6 pm in the

hospital. The prosecution has not explained what happened during the

period 12 noon of 31.12.1987 and 6 pm of 01.01.1988. Another

interesting aspect is that the X-ray report Exhibit PW6/B indicates

consolidation of the left lower lobe of lungs. However, the doctor S. K.

Verma PW19, who conducted the post mortem examination, noted that

there was no consolidation in this case. This clearly contradicts the X-

ray report. However, the said witness stated that there is no

relationship between bleeding and consolidation. It is quite possible

that since consolidation was present in the lower lobe of the left lung of

the deceased Aditya, he was probably suffering from some disease.

17. We may also try to visualize what happened on the fateful

day on the basis of PW10‟s testimony before Court. According to him

balance rent of Rs 100/- was due from the appellant Parmesh Kumar.

He along with his friend Aditya had gone to Parmesh Kumar‟s house to

collect the said balance amount of Rs 100/-. When the demand was

made, the appellant Parmesh Kumar picked up a quarrel and started

abusing them. Aditya told him as to why he was abusing him when the

dispute was actually between the appellant and PW10 Anil Kumar.

Supposedly, on this statement, the appellant got so enraged that he

went inside his house and brought out a pair of scissors which he held

in the strange manner, as indicated above, and then gave one blow on

Aditya‟s chest which started bleeding and Aditya became unconscious

and fell down. In such a situation, PW10 Anil Kumar did nothing. He

neither helped his friend Aditya in trying to avoid the scissors blow nor

did he raise any alarm. Instead, he left Aditya in an unconscious

condition and went away at a distance of about half a kilometer to hire

a three-wheeler scooter from the road. It must be visualized that all this

while Aditya was left on the ground on his back (according to PW10)

outside the appellant Parmesh Kumar‟s house which was one of the

passages in the J.J Colony. In this time, which was five minutes

according to PW10 Anil Kumar, nobody encountered the injured

Aditya lying on the ground in an unconscious state. This is all the

more surprising because of the alleged time of occurrence being 9 O‟

Clock in the morning and the location being a passage on which there

were jhuggis on both sides in a densely populated J. J Colony.

Anyhow, the injured Aditya, who was lying in an unconscious

condition, was left there alone and the appellant Parmesh Kumar, if he

really intended to kill him, had full opportunity to do so. But that did

not happen.

18. Then, as per the testimony of PW10 Anil Kumar, he returned

to the place of occurrence with the three-wheeler scooter. There was

nobody else at that point of time. With his bare hands he lifted the

injured Aditya, who was still unconscious and placed him in the rear

seat of the three-wheeler scooter. It is also important to note that the

prosecution has not produced the scooter driver or even given the

registration number of the three-wheeler scooter. One can easily

visualize how difficult it is for a single person to lift an unconscious

person in his arms. It is even more difficult to visualize as to how a

person can lift an injured person, who is bleeding, in his arms and not

have any blood stains on his own clothes. But, this is what has

happened according to PW10 Anil Kumar.

19. Furthermore, PW10 Anil Kumar stated that at the time when

he took Aditya to the emergency ward, he was still unconscious. He

also had no talk with the doctor. If this is the case, then how is it that

the MLC Exhibit PW6/A, which was recorded at 10 am on 28.12.1987,

indicates:- "no h/o unconsciousness". The MLC also indicates that the

patient is conscious and well oriented to time and place. This clearly

indicates that if Aditya was conscious at that point of time, then PW10

Anil Kumar‟s testimony that Aditya fell down unconscious and was

taken to the emergency in an unconscious condition cannot be believed.

It is also clear that if PW10 Anil Kumar did not talk to the doctor, as

stated by him, and if Aditya was in an unconscious state when he was

brought to the emergency ward, then how does the MLC Exhibit

PW6/A indicate "alleged h/o stab injury in part of left side of chest by

a pair of scissors".

20. While PW9 ASI Bal Kishan, the person who recorded the

statement of Anil Kumar Exhibit PW9/B, stated that there was blood at

the spot, i.e., place of occurrence, this has been negated / controverted

by the Investigating Officer PW21 Mehar Chand, who stated in his

cross-examination that there were no blood marks at the spot nor was

the spot photographed. In any event, no sample of the blood stained

soil was taken. This also makes the place of occurrence uncertain.

21. Apart from this, there is also the question of motive. Of

course, there have been cases where courts have convicted the accused

despite there not being a clear or established motive, but those are cases

where there is clear undented ocular testimony or other such evidence

to establish the guilt of the accused. Where the ocular testimony is

dented or is not believable, even partially, motive becomes a relevant

factor. In the present case PW10 Anil Kumar is the alleged sole eye

witness. His testimony does not inspire confidence and, therefore, the

question of motive attains importance. What was the motive for

appellant Parmesh Kumar to have intended to kill the deceased Aditya?

Aditya and Parmesh Kumar had no prior dealings. The appellant

Parmesh Kumar was PW10 Anil Kumar‟s father‟s ex-tenant. The

alleged sum of Rs 100/-, which was due, was from appellant Parmesh

Kumar to PW10 Anil Kumar‟s father. The deceased Aditya had

nothing to do with it. In our view, there was no motive for the

appellant Parmesh Kumar to have caused the death of deceased Aditya.

We may also note that even as per the prosecution the only purported

reason as to why the appellant Parmesh Kumar stabbed Aditya with the

pair of scissors was because Aditya told him as to why he was abusing

him (Aditya) when the dispute was between the appellant Parmesh

Kumar and PW10 Anil Kumar. Apparently, this got the appellant

Parmesh Kumar so enraged that he went inside his house and returned

with a pair of scissors with which he gave a blow on Aditya‟s chest.

This, to us, does not constitute a reason enough or motive enough to

cause the death of Aditya. It must also be pointed out at this juncture

that when the appellant Parmesh Kumar went inside his house, both

Anil Kumar and Aditya had ample opportunity of escaping and running

away. We must also keep in mind the fact that PW10 Anil Kumar and

Aditya are the ones who are alleged to have gone to the appellant

Parmesh Kumar‟s house without any prior information and, therefore,

there cannot even be an allegation that the appellant Parmesh Kumar

was waiting for them and was ready with a plan or an intention to

assault them.

22. All the above circumstances lead us to only one conclusion

and that is that the conviction of the appellant Parmesh Kumar cannot

be sustained. The appeal is, therefore, allowed. The impugned

judgment and/ or order on sentence are set aside. The appellant‟s bail

bond is cancelled and the surety stands discharged.

BADAR DURREZ AHMED, J

V.B. GUPTA, J March 06, 2009 SR