Mahesh @ Kale vs State
2009 Latest Caselaw 780 Del

*                    IN THE HIGH COURT OF DELHI

%                               Judgment reserved on : 04.03.2009
                               Judgment delivered on : 06.03.2009

+                                 CRL.A.827/2008


MAHESH @ KALE                                    ..... Appellant
             Through:             Mr.S.K.Sharma, Mr.Dhruv Kumar and
                                  Mr.Mayank, Advocate

                     versus
STATE                                     ..... Respondent
              Through:       Mr.Pawan Sharma, Advocate


                                  CRL.A.5/2009


JITENDER @ JEETU                             ..... Appellant
         Through:            Mr.Anand Saini, Advocate

                     versus
STATE                                     ..... Respondent
              Through:       Mr.Pawan Sharma, 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.

1. On 7.9.2002 at 2.10 PM, Const.Meenakshi PW-7,

recorded DD No.25-B, Ex.PW-7/A on an information received

through the police control room that near house No.N-228 Maddi

Wali Gali, near Khyala School, a quarrel had taken place. Soon

thereafter, at 2.26 PM, on information given by one Chander,

same information was re-recorded vide DD No.26-B, Ex.PW-7/B.

2. ASI Gyan Chand PW-22, accompanied by Head

Const.Ram Narain PW-6, reached the given place as recorded in

the two DD entries and found Hem Raj PW-3, at house No.N-228

Vishnu Garden, who made the statement Ex.PW-3/A recorded by

ASI Gyan Chand PW-22, in which he informed that he resides

with the other family members at house No.N-228 Vishnu

Garden and that Mahesh and Jitender (the appellants) also

reside in the same locality and some-time back had teased his

sister-in-law because of which his brother Prakash, had a fight

with them. That today, at around 1.30 PM, he and Prakash were

walking towards Raghubir Nagar and had reached gali No.7,

block NA Vishnu Garden, when the appellants who were armed

with hockey sticks stopped them and started quarreling with his

brother Prakash; they said that they would see as to who would

save him today. Both started hitting Prakash on his head with

hockey sticks. Prakash fell down and became unconscious. He

raised a hue and cry. Both the appellants fled.

3. ASI Gyan Chand made an endorsement Ex.PW-22/A

on the statement Ex.PW-3/A and sent HC Ram Narain for

registration of an FIR. At 3.50 PM, ASI Kailash Chand PW-5,

registered the FIR, Ex.PW-5/A.

4. Though not recorded in the statement Ex.PW-3/A,

Hem Raj informed ASI Gyan Chand that his brother Prakash had

been removed to Guru Gobind Singh Government Hospital by his

brother Chandra Bhan PW-2 and his sister Sunita. ASI Gyan

Chand went to the hospital and attempted to record the

statement of the injured who was not certified fit for statement

by the doctor. ASI Gyan Chand returned and accompanied by

Hem Raj went to the spot pointed out by Hem Raj where his

brother was assaulted i.e. at gali No.7. ASI Gyan Chand prepared

the site plan Ex.PW-22/E. He called a photographer, Dheeraj

Kumar PW-8, who took two photographs Ex.PW-8/A and PW-8/B;

negatives whereof are Ex.PW-8/A1 and Ex.PW-8/B1 respectively.

From the place of the occurrence ASI Gyan Chand lifted blood

sample and blood stained earth vide seizure memo Ex.PW-6/A.

5. On 8.9.2002 appellant Mahesh was arrested from

House No.N-148 Vishnu Garden, Delhi vide arrest memo Ex.PW-

10/C by ASI Gyan Chand and Const.Pushpraj PW-10. Appellant

Jitender was also arrested at the instance of Hemraj vide arrest

memo Ex.PW-10/D. On interrogation, appellants Mahesh and

Jitender made disclosure statements Ex.PW-10/A and Ex.PW10/B

respectively, to ASI Gyan Chand as per which they admitted

assaulting the deceased with hockey sticks and volunteered to

get the same recovered. Appellant Jitender got a hockey stick

recovered from the roof of his house which was seized vide

memo Ex.PW-10/G and appellant Mahesh also got a hockey

recovered from the corner of his house NA-5 Vishnu Garden,

which was seized vide Ex.PW-10/H.

6. On 9.9.2002, ASI Gyan Chand visited the trauma

centre near Chandgi Ram Akhada, where the injured had been

shifted on the advice of the doctor of Guru Gobind Singh

Hospital, where the doctor declared the injured unfit for making

a statement. ASI Gyan Chand met Chander Bhan PW-2 at the

trauma centre and recorded his statement under Section 161

Cr.P.C.

7. At around 7.30 AM on 17.9.2002 information was

received at the police station that Prakash had died. ASI Gyan

Chand PW-22 went to the hospital and seized the dead body and

sent the same for post-mortem to the mortuary.

8. Dr.Sarvesh Tandon PW-13, conducted the post-

mortem and submitted his report Ex.PW-13/A, dated 18.9.02,

which records nine injuries on the deceased, as under:-

(i) Stitched wound - just above right eye on outer side, 2 black stitches, lacerated margins.

(ii) Stitched wound - over tragus of right ear, black stitch, lacerated margin.

(iii) Stitched wound - over pinna of right ear, black stitch, lacerated margins.

(iv) Stitched wound - over right subclaviculor region, black stitch, lacerated margins.

(v) Healed abrasion - on right frontal prominence, 2 cms size.

(vi) Lacerated wound on top of head, in back part, 2 cms long, present antroposteriety.

(vii) Lacerated wound on top of head, in back part, 2 cm to the left of injury No.(vi).

(viii) Left side of face swollen, 11 x 7 cm size.

(ix) Nacmatoma (boggy swelling) over left side of head 10 x 6 cm size."

9. He opined the cause of death as cranio cerebral

damage, consequent upon blunt force diverted upon the head,

by a heavy, hard, blunt object by the other party and all the

injuries were ante-mortem in nature and probably of the same

duration as mentioned in MLC. Cranio cerebral injuries, as

mentioned above, were opined to be fatal and sufficient to

cause death in ordinary course of nature.

10. On 23.9.02, SI Neeraj Kumar PW-12, was handed over

the investigations of the case. He summoned Tirath Raj PW-9

who prepared a site plan to scale Ex.PW-9/A.

11. Armed with the seizure memos, disclosure

statements, post-mortem report of the deceased and citing the

police officers associated with the investigation and two public

witnesses namely, Hemraj and Chander Bhan, the brother of the

deceased, a charge sheet was filed indicting the appellants for

the offence of murdering Prakash i.e. the offence punishable

under Section 302/34 IPC.

12. Needless to state the case of the prosecution hinged

upon the testimonies of Hemraj PW-3, and Chander Bhan PW-2.

13. Hemraj PW-3, in his testimony deposed that on

7.9.02 he and his elder brother Prakash were going towards

Raghubir Nagar at around 1.30 PM. On reaching gali No. 7, they

found both the appellants standing there, holding hockey sticks

in their hands. Appellant Jeetu held Prakash's collar from the

back and started saying "dekhte hain beta aaj tujhe kaun

bachata hai". Then both appellants started hitting Prakash on

his head with hockey sticks; Prakash became unconscious and

fell down. When he started shouting for help, the appellants ran

away from the spot. That after 5/7 minutes, his elder brother

Chander PW-2 came there, and the two removed Prakash to

Guru Govind Singh Hospital in a rickshaw. While Chander Bhan

stayed in the hospital, he returned home with his sister. Police

met him at his house and recorded his statement Ex.PW-3/A,

and took him to the hospital, from where he led them to the

place of occurrence. That on 8.9.2002, at his pointing out the

investigating officer arrested both the appellants. On cross

examination, he deposed that the clothes which he was wearing

at the time of occurrence had received stains of Prakash's blood,

but that he did not hand over the same to the police as he had

thrown those clothes away.

14. Chander Bhan PW-2, the elder brother of the

deceased Prakash deposed that on 7.9.02 at about 1.30 PM,

some boys informed him at his house No.N-228 Vishnu Garden,

Delhi, that Jitu and Kaley were beating Prakash in the

Videogame wali gali, NA Block, Vishnu Garden. He reached there

and found his brother lying in a pool of blood. He, along with his

sister Sunita took Prakash in a three-wheeler scooter to Guru

Teg Bahadur Hospital, from where Prakash was shifted to the

Trauma Centre. He deposed that about 5/6 months prior to the

date of incident, he had seen the appellants beat his brother

Prakash and Suraj.

15. Holding that Hemraj PW-3 and Chander Bhan PW-2

are trustworthy witnesses and that Hemraj was a witness to the

incident; with reference to the testimony of Hemraj and the

recovery of the two hockey sticks pursuant to the disclosure

statements of the appellants and at their instance; further

recording a finding of motive for the crime, vide judgment and

order dated 25.8.2008 the Learned Trial Judge has held that the

prosecution has successfully established that acting with a

common intention, the appellants assaulted deceased Prakash.

With reference to the injuries suffered by Prakash as per post-

mortem report Ex.PW-13/A; since they were on a vital part of the

body i.e. the skull and were nine in number, it has been held

that the acts of the appellants make them liable for having

committed an offence punishable under Section 302 IPC. The

appellants have been directed to undergo imprisonment for life

and to pay a fine in sum of Rs.2,000/- each; in default of

payment of fine to undergo rigorous imprisonment for one

month.

16. Arguing the appeal, the learned counsel for the

appellants urged the following submissions:-

(a) Questioning the conduct of Hemraj PW-3 in not

attempting to rescue his brother Prakash, when he was

being beaten up by the appellants, learned counsel urged

that Hemraj was about 16 years old at the time of the

incident which was not too young an age to have

prevented him from at least making an attempt to rescue

Prakash.

(b) The learned counsel urged that the presence of

Hemraj at the place of occurrence and hospital itself

becomes doubtful, considering that Chander Bhan PW-2,

nowhere mentioned in his testimony about Hemraj being

present either at the place of incident or at the hospital.

Learned counsel urged that Chander Bhan PW-2 had only

mentioned about his sister Sunita who accompanied him in

taking Prakash to the hospital. Thus counsel urged that

testimonies of Hemraj PW-3 and Chander Bhan PW-2 cast a

doubt on the presence of Hemraj. Learned counsel further

urged that whereas Hemraj deposed that Prakash was

removed to the hospital in a rickshaw, Chander Bhan

deposed that Prakash was removed in a three-wheeler

scooter. Further, Chander Bhan deposed that Sunita was

present but Hemraj did not speak about Sunita's presence

at the spot where Prakash was injured.

(c) Learned counsel for the appellants urged that as per

the testimony of Hemraj PW-3, his clothes got stained with

blood but surprisingly were not handed over to the police;

learned counsel urges that Hemraj told a lie because he

was not present at the spot and the question of his clothes

being stained with blood does not arise. Learned counsel

urged that Hemraj told a further lie when being cross-

examined that he threw the clothes away.

(d) Learned counsel urged that each witness of the

prosecution has spoken about his presence or seeing

Prakash injured at a different place. Thus, learned counsel

urged that the same casts a doubt about the presence of

the witnesses as claimed by them. The testimonies of

Chander Bhan PW-2 and Hemraj PW-3 and DD No.25-B

were referred to. It was pointed out that Chander Bhan

PW-2 disclosed the place of occurrence as Videogame Wali

Gali, NA Block, Vishnu Garden; Hemraj PW-3 disclosed the

place of occurrence as Gali No.7. It was pointed out that

the seizure memo Ex.PW-6/A prepared by ASI Gyan Chand

while seizing blood sample and blood stained earth from

the place of occurrence records the place as Gali No. 5 NA

Block, H.No.NA-94 Vishnu Garden. DD entry No.25-B,

Ex.PW-7/A records N-228 Maddi Wali Gali, near Khyala

School, as the place of incident.

(e) Learned Counsel questioned as to why Sunita the

sister of deceased has not been made a witness, when

Chander Bhan in his testimony had categorically deposed

that he with the help of his sister Sunita shifted Prakash to

Guru Gobind Singh Hospital. Learned counsel also

questioned as to why the boys who had allegedly informed

Chander Bhan PW-2 about Prakash being beaten up by

Kaley and Jitu have not been made witnesses.

17. From a perusal of the decision of the learned Trial

Judge, it is apparent that of the five submissions made before us

in appeal, only two appear to have been urged before the

learned Trial Judge and hence have been dealt with. We note

that certain submissions which were urged before the learned

Trial Judge and have been dealt with by him have not been

urged in appeal. The two submissions which were urged before

the learned Trial Judge pertain to non seizure of the clothes

worn by Hemraj, which according to him were stained with the

blood of his brother. The other is pertaining to the place of the

occurrence.

18. In para 60 and 61 of the decision, the learned Trial

Judge has dealt with the issue of the police not seizing the blood

stained clothes of Hemraj. The learned Judge has opined as

under:-

"60. Another submission made by Ld.counsel for the accused persons is that according to PW-3 Hemraj, he lifted his injured brother in his arms and his clothes were blood stained but his clothes were not seized by the investigating officer. The blood stained clothes of Hemraj have not been produced in Court. In support of his submission he has relied upon Judgment in case titled as Khima Mikamshi & Ors. vs. State of Gujarat reported as 2003 (2) RCR (Criminal) 793.

61. Again the argument is without any merit. In Khima Mikamshi's case (supra), there was no blood stains on the person of witnesses in spite of their holding body of deceased, absence of any blood stained earth at the place of incident, non-filing of complaint at the police outpost in the village. In the instant case Shri Hemraj (PW-3) has testified that his clothes were having blood stains of his brother Prakash. He threw the said blood stained clothes and did not hand over the same to the police. At the most, non seizure of blood stained clothes of Shri Hemraj, is a lapse on the part of investigating officer. But it is settled principle of law that defective investigation or lapses on the part of the investigating agency are not sufficient to acquit the culprits and cannot be made base of acquittal. The prosecution case cannot be made to die at the hands of the police officials. In this regard reliance can be placed on a Judgment in case titled as State of West Bengal vs. Mir Mohd. Omar & Ors. Reported as JT 2000 (9) SC 467 and another case titled as State of U.P. vs. Hari Mohan & Ors. Reported as 2001 Criminal Law Journal 170 (SC). In Mir Mohd. Omar's case (supra) it has been held that flaws in investigation, if made basis of acquittal, criminal justice would be a victim. In the instant case the blood had come on the clothes of Shri Hemraj. Mr.Hemraj while appearing as PW-3 has testified that there was blood

on his clothes, he threw his clothes and the same were not handed over to the police. Moreover, the blood stained earth was seized from the spot."

19. We note that the Trial Court has extensively noted

the above contention and the evidence has been correctly

appreciated. We only wish to add that the MLC of Prakash

shows that he was bleeding from the nostrils. We further note

that the injuries received by Prakash were internal and the blood

loss was internal. Not much blood would spill out. It appears to

be a case where Hemraj has over-stated himself by

exaggerating the facts. It is not uncommon in India for

witnesses to mix fiction with facts and try and go for an over kill.

There are large numbers of decisions which require, due to said

reason, the Court to separate the grain from the chaff. It has to

be noted that the statement of Hemraj under Section 161 Cr.P.C.

was recorded by the police on the day of the incident itself at

around 3.30 PM as recorded in the rukka. The incident in

question had taken place at around 1.30 PM, meaning thereby

there was hardly any time available with Hemraj to fabricate a

false story.

20. The dispute of the place of occurrence as emanating

with reference to the testimonies of Chander Bhan and Hemraj;

the recovery memo and the place of incident recorded in DD

No.25-B has been dealt with by the learned Trial Judge in paras

51, 52 and 53 of the impugned decision which read as under:

"51. Ld. Counsel for the accused persons also contended that the place of incident has not been proved by the prosecution. According to him PW-2 Chander has stated that incident took place in Video game wali gali, NA Block and PW-3 Shri Hemraj has deposed that incident took place in gali No.7, NA Block. He pointed out that there is distance of about 200/250 feet between gali No.5 and gali No.7, NA Block, Vishnu Garden, Delhi. In support of his submission he has relied upon Judgment in case titled as Syed Ibrahim vs. State of Andhra Pradesh reported as 2006 (3) RCR (Criminal) 864.

52. Again the argument is without any substance. PW-2 Chander Bhan has deposed that he was informed that the accused persons were beating his brother Prakash in Video game wali gali, NA Block, Vishnu Garden. He has not been cross examined on this aspect. No question was put on behalf of the accused persons that Video game wali gali is gali No.7. Shri Hem Raj (PW-

2) is an eye witness and he has testified that when he and his brother reached in gali No.7 both the accused persons met them and the accused persons gave beating with Hockeys to injured Prakash. Moreover, PW-3 Hemraj in his cross examination has explained that gali No.5 is situated at a distance of about 15 - 20 feet from the place of incident. The prosecution has proved the site plan prepared by IO as Ex.PW-22/E and the place of incident has been shown at point A in the site plan. The prosecution has also proved the scaled site plan which is Ex.PW-3/A and the place of incident has been shown at No.1. The site plan has not been disputed by the accused persons. In any case it has come on record that the accused persons gave beating with Hockeys to deceased Prakash, who received multiple injuries and later on succumbed to his injuries on 11.09.2002.

53. The Apex Court in case titled as State of HP vs. Lekh Raj & Anr. reported as JT 1999 (9) SC 43 has observed that the traditional dogmatic hyper technical approach has to be repealed by rational, realistic and

genuine approach for administering justice in a criminal trial."

21. The learned Trial Judge has correctly appreciated the

facts. The learned Trial Judge has noted the clarification given

by Hemraj PW-3 when he was cross-examined with reference to

the place of occurrence. We note that the learned Trial Judge

has not referred to DD Entry 25-B Ex.PW-7/A, which records the

place of incident as N-228 Maddi Wali Gali, near Khyala School.

22. DD entries are recorded in the police station in Delhi

mostly as a relayed information for the reason the informant

rings up the number 100 and the call is received at the police

control room which is centralized. The duty officer at the police

control room there upon conveys the information either over the

telephone or wireless to the concerned police station where the

duty officer at the police station notes down the same. In the

process there is likelihood of the place where from the informant

has rung up the police with the address of the injured or the

place of occurrence getting mixed up. It is not out of place to

note that N-228 Maddi Wali Gali is the house of the deceased

and there is every probability that while recording the DD entry

the duty constable incorrectly recorded the same as the place of

occurrence. Be that as it may, a DD entry is not a substantive

piece of evidence inasmuch as it only sets into motion the

involvement of the police in the investigation. By its very

nature, it is a record of a cryptic information received at the

police station. Pertaining to the fact that in the seizure memo

the place of occurrence is referred to as Gali No.5, whereas the

actual place of occurrence as shown in the site plan Ex.PW-9/A is

in between Gali No.5 and Gali No.7 and this accounts for Hemraj

deposing that the place of occurrence was Gali No.7 and the

recovery memo recording it as Gali No.5. Had Hemraj deposed

that the place of incident was near Gali No.7 and had the

investigating officer recorded in the recovery memo that the

place of incident was near Gali No.5, it would have ruled out any

controversy on said point. It is obvious that each one has been a

little lazy in not expressing himself correctly.

23. The submission pertaining to the so called unnatural

conduct of Hemraj PW-3, in not attempting to rescue his brother

and on said account should an inference be drawn that he was

not present at the spot as urged by learned counsel for the

appellant presupposes that the conduct of every brother would

be to rush and save his brother who is being assaulted. How a

man or a woman would react when faced with a hostile

environment cannot ever be uniform for all. Each individual has

a different nerve and thus reacts differently. Hemraj was aged

16 years. The assailants were much older and were armed with

hockey sticks. His brother was being assaulted. As per Hemraj

he started weeping. It is not unnatural for a brother to get

frozen with fear on witnessing his brother being beaten. We find

nothing unnatural or abnormal in the conduct of Hemraj and

merely because he did not go to rescue his brother does not

mean that he was not present at the spot.

24. Pertaining to the plea that Chander Bhan PW-2 did

not depose about the presence of Hem Raj and deposed that his

sister Sunita had accompanied him to the hospital; that Hemraj

deposed that Prakash was removed to the hospital in a rickshaw

and Chander Bhan deposed that Prakash was removed to the

hospital in a three-wheeler scooter; that Chander Bhan deposed

that Sunita was present but Hemraj did not depose about

Sunita's presence and hence an inference should be drawn that

Hemraj was not present, is nothing but an attempt to clutch to

straws. The incident took place on 7.9.2002. PW-2 and PW-3

deposed on 7.11.2003 and 8.1.2004 respectively. With the

passage of time, trivial aspects of an incident fade in the

memory. Merely because Chander Bhan did not depose that he

met Hemraj at the spot does not mean that Hemraj was not

present. We note that Hemraj has categorically deposed that he

also went to the hospital along with Chander Bhan and returned

home leaving Chander Bhan with his brother Prakash at the

hospital. We give credence to the fact that the statement of

Hemraj was recorded by the police at around 3.30 PM i.e. soon

after the incident and there was hardly any time for Hemraj to

spin a false story. That a witness spoke about the victim being

carried in a rickshaw and another witness spoke about the victim

being carried in a three-wheeler scooter is neither here nor there

because in common parlance, in the city of Delhi, a three-

wheeler scooter is also referred to a rickshaw.

25. That Sunita the sister of the deceased and the

persons who informed Chander Bhan about Prakash being

beaten, not being cited as witnesses of the prosecution leads the

defence nowhere. It is not the number of witnesses and the

volume of evidence which is relevant at a criminal trial. It is the

quality of the evidence which matters.

26. The only question which now remains to be

considered is whether the acts attract Section 304 IPC or Section

302 IPC.

27. The appellants were armed with hockey sticks.

Blows which have caused injuries No.1, 2, 3, 4, 5, 6 and 7 have

been directed towards the head of the deceased; a vital part of

the body. The remaining blows are directed towards the lower

part of the body. If not intention, knowledge has to be attributed

to persons who inflict seven blows with hockey sticks directed

towards the head that the acts are so imminently dangerous that

they must, in all probability, cause death or such bodily injury as

is likely to cause death.

28. We find no merit in the appeals. The appeals are

dismissed.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

March 06, 2009 Dharmender