Sunil @ Babloo vs State
2009 Latest Caselaw 868 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                              Crl. Appeal No. 418/2004

%                               Date of Order : March 18, 2009

SUNIL @ BABLOO                     ..... Appellant
             Through : Mr.H.J. S. Ahluwalia, 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 paper may be
    allowed to see the judgment?

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

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

PRADEEP NANDRAJOG, J. (Oral)

1. Vide impugned judgment and order dated 30 th

January 2004 the appellant has been convicted for the offence

of murdering Ashish. The appellant has also been convicted

for the offence punishable under Section 27 of the Arms Act.

2. Vide order on sentence dated 31st January 2004,

he has been sentenced to undergo imprisonment for life and

to pay a fine of Rs.3,000/-; in default of payment of fine, to

undergo S.I. for three months pertaining to the offence of

murder. For the offence punishable under Section 27 of the

Arms Act sentence imposed is to undergo R.I. for three years

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

to undergo S.I. for two months.

3. Needless to state, both sentences have been

directed to run concurrently.

4. Four persons, namely, Rakesh PW-5, Anil PW-6,

Manju PW-9 and Ikram PW-16 were cited as the eye witnesses

to the incident.

5. Rakesh and Anil are the brother of the deceased

whose name was Ashish. Manju is the wife of Ashish. Ikram

is a neighbor.

6. The place of incident is a public street. The exact

spot is outside house No.U-554, Bal Hanuman Mandir Marg,

2nd Pusta, New Usmanpur. The time of the incident is around

9.00 AM on 1.1.2001.

7. The appellant is a resident of House No.U-555, Bal

Hanuman Mandir Marg, 2nd Pusta, New Usmanpur.

8. The case of the prosecution is that on 31.12.2000

a quarrel had taken place at around 9.00 - 10.00 P.M.

between the appellant and his neigbours i.e. Anil, Rakesh and

Ashish. Ikram, a neighbour had intervened and had sorted

out the matter. But, while leaving, the appellant threatened

Ashish that he would see him some other time. That on

1.1.2001 at about 9.00 A.M. Ashish was cleaning the drain

(nalli) outside his house. The appellant started quarreling

with Ashish pertaining to the issue of the previous evening.

He started grappling with Ashish who gave a head butt on the

left eye of the accused, whereupon the accused took out a

knife and inflicted two blows on the chest of Ashish, who fell

down and started bleeding profusely. Attempts to apprehend

the appellant at the spot were frustrated. He ran away.

9. The events which unfolded on 1.1.2001 stand

reflected in the MLC of the deceased; the DD entry recorded

at the Police Station when information was received from the

duty constable at LNJP hospital regarding the deceased

having been brought to the hospital and his having died; the

statement of Rakesh PW-5 recorded by SI Pramod and the FIR

registered pursuant thereto.

10. The MLC Ex.PW-1/A of Ashish evidences that he

was brought to the hospital i.e. LNJP hospital at 10.20 A.M. by

Rakesh. Before any timely medical aid could be given to

Ashish he died at 10.30 A.M.

11. In the MLC the name of the patient first written as

„Anil‟ has been scored off and the name „Ashish‟ has been

written. The cutting has been initialed by the doctor who

prepared the MLC.

12. Information pertaining to an injured being brought

at the hospital and the fact of his death has been recorded in

DD entry No.5-A dated 1.01.2001. The document is Ex.PW-

17/A. The duty constable at Police Station New Usman Pur has

recorded the information received from Babu, the duty

constable at LNJP hospital that Anil son of Ram Bharose aged

about 24 years, resident of U-554, 2nd Pusta, Usman Pur was

brought in an injured condition; being stabbed with a knife,

and that he had died.

13. The DD entry is recorded at 11.30 A.M.

14. On receipt of the information at the local Police

Station SI Pramod PW-17 accompanied by Const. Vijender

Singh PW-11 left for the hospital and met Rakesh PW-5 whose

statement Ex.PW-5/A was recorded in which he informed

about the quarrel which had taken place the previous night

and that in the morning of 1.1.2001 at around 9.00 A.M. when

his brother Ashish was cleaning the drain outside the house,

the appellant had an altercation pertaining to the issue of the

previous night and that he stabbed Ashish twice on the chest

and thereafter ran away. The attempts by Ikram and Anil to

apprehend him failed.

15. Making an endorsement Ex.PW-17/B on the

statement Ex.PW-5/A, both were dispatched from the hospital,

as recorded in the endorsement Ex.PW-17/B, at 1.30 P.M. The

FIR Ex.PW-2/A was recorded at 1.40 P.M. on 1.1.2001.

16. The appellant was apprehended and arrested, as

recorded in the arrest memo Ex.PW-17/C, at 6.20 P.M. on the

same day i.e. on 1.1.2001. The place of arrest is ISBT

Kashmere Gate. The appellant was interrogated and made a

statement Ex.PW-5/B in which he disclosed to the police that

he knew the whereabouts of the weapon of offence i.e. churri

with which he had inflicted the injuries on Ashish and offered

to get the same recovered.

17. Thereafter, appellant led the Investigating Officer

to a sweet shop at 2nd Pusta of Hanuman Gali and from a

drain near electric pole got recovered a knife Ex.P-1 which

was seized vide seizure memo Ex.PW-16/B. Sketch whereof

Ex.PW-16/A was drawn by the SHO of the Police Station who

had also joined the investigation.

18. The dead body of Ashish was sent to the mortuary

where Dr. Anil Kumar PW-13 conducted the postmortem at

2.45 P.M. on 2.1.2001 and noted two external injuries: (1)

Incised stab wound 2 x 0.8 cms: chest cavity deep on the left

side of the chest; 7 cm above the left nipple. The wound was

placed obliquely with both angles acute. (2) The second stab

wound with dimension 2.5 x 1.2. cms on chest, cavity deep,

on the left side lower front of chest at a distance of 7.2. cms

below the left nipple and 9.5 cms from the midline. The

internal examination was noted that the left lung had been

pierced. The dimension of the internal injuries may be noted

from the postmortem report itself, which records the same as

under:-

"Rt. Lung - NA Wt. 450 Gms. Left lung shows a cut in the lower edge of upper lobo & upper edge of lower lobe of dimension 4 cms x 0.5 cms passes through the lower lobe of lung to exter the outer aspect of chest wall of left side to furnish there in sixth intercostals space with cut mark 4 x .8 cms (via injury No.2) the direction of track of injury No.2 being downwards backwards and outer wards. The total length of track being about 12 cms.

Injury No.1 enters the Ist intercostals space on left

side, to enter and pass through the original of ascends auta making a cut 2.5 x 0.2 cms passed backward with a cut in pulmonary truck 1.5 x 0.2 cms and then passing through the right main brounchus cutting its front all of funish in the lumen. The direction of the wound being downwards backwards and slightly inwards. The length of the backbeing about 10 cms."

19. The postmortem report is Ex.PW-13/A.

20. The opinion of the doctor was specifically sought

with respect to the knife Ex.P-1 and vide report Ex.PW-13/B it

was opined that the injuries could be caused by the knife in

question.

21. At the trial, Rakesh PW-5 deposed that he was a

resident of House No.U-554, 2nd Pusta, New Usmanpur. That

on 1.1.2001 appellant inflicted knife blows on his brother

Ashish. He was present. His brother was cleaning a nalli

outside the house. That the accused inflicted two blows on

the chest of his brother. That the previous night there was a

quarrel between the accused and his brother. That he took

his brother to the hospital. That Anil, his younger brother

chased the accused but could not apprehend him. Ikram and

other people were present. He took his brother to the

hospital. His brother was named Ashish. He stated that

initially he incorrectly gave name of his brother to the doctor

as „Anil‟ but later on got the same corrected as „Ashish‟. He

stated that his statement Ex.PW-5/A was recorded by the

police and that it bears his signatures at Point A. He went on

to depose that the accused was brought to Usmanpur and got

recovered a churri from a nalli. He deposed that the accused

was interrogated and that the accused told the police that he

had murdered Ashish.

22. On being cross examined, Rakesh stated that the

police never recorded his statement but he was made to sign

some papers. He stated that he did not sign any paper in the

hospital and that whatever he was made to sign was at the

Police Station. When questioned as to in what manner Ashish

was taken to the hospital, he stated that firstly in a rickshaw

and then in a TSR.

23. We note that Rakesh is a witness to the recovery

memo Ex.PW-16/B and is also a witness to the disclosure

statement Ex.PW-5/B.

24. Anil PW-6, deposed that on 31.12.2000 a quarrel

had taken place between Ashish and the appellant and with

the intervention of the neighbours the quarrel was quenched.

That in the morning, on 1.1.2001, he was standing outside his

house. The time was 9.00 A.M. Ashish, his brother, was

cleaning a naali. Appellant started quarreling on reaching the

spot and took out a knife and inflicted blows on Ashish. That

Rakesh and Ikram were present. That his brother was

removed to the hospital in a TSR. That after inflicting the

injuries the appellant ran away from the spot and took the

knife along with him.

25. Manju PW-9, deposed that she was the wife of

Ashish and that on 31.12.2000 at 9.30 P.M. a quarrel had

taken place between the appellant and her husband. With

the intervention of neighbours, in particular Ikram, the issue

was sorted out. That the next day at 9.00 A.M. her husband

was cleaning the nalli. She was inside the house. She heard

commotion and came out of the house. She saw appellant

quarreling with her husband. That all of a sudden, the

appellant struck two blows with a knife on her husband. That

thereafter appellant ran away. Her elder brother-in-law took

her husband to the hospital. That she became nervous and

started crying and did not remember as to what happened

thereafter.

26. Ikram PW-16, deposed that on 31.12.2001 a

quarrel had taken place between the appellant and the

deceased. He had sorted out the matter. On 1st January

Ashish was cleaning a nalli. A quarrel ensued between the

appellant and Ashish. A hue and cry was raised. He saw

blood oozing from the body of Ashish, who had fallen down.

That appellant had given knife blows. That Rakesh and Anil

removed Ashish to the hospital. That the appellant was

apprehended there and then and was tied to a pole. One

Balraj went to the Police Station and brought the police to the

spot. That the appellant took out a knife from a naali and was

apprehended. That the sketch Ex.PW-16/A of the knife bears

his signatures. He identified the knife as Ex.P-1. On being

cross examined, he denied that the appellant was not

apprehended at the spot.

27. SI Pramod Chauhan PW-17 deposed that on receipt

of DD No.5-A, Ex.PW-17/A, accompanied by Const. Vijender he

went to LNJP hospital and learnt that injured had died. That

he recorded the statement Ex.PW-5/A made by Rakesh and

that he made an endorsement Ex.PW-17/B thereon and sent

the same through Const. Vijender for registration of an FIR.

He deposed that on receiving information that the appellant

was at ISBT Kashmere Gate, accompanied by the SHO of the

Police Station he went to Kashmere Gate and apprehended

the appellant and prepared his arrest memo Ex.PW-17/B.

That on interrogation, the accused made a statement Ex.PW-

5/B. That thereafter the appellant led the police party to Saini

Halwai Shop, 2nd Pusta and from near a electric pole got

recovered a knife Ex.P-1. That seizure memo Ex.PW-16/B was

prepared and sketch Ex.PW-16/A was drawn.

28. Inspector Ramesh Chand PW-18, the SHO of the

police station deposed that he went to the spot where the

offence has occurred at around 2.30 P.M. on 2.1.2001 and

prepared the site plan Ex.PW-18/A. He deposed that he

received secret information that appellant was available at

ISBT Kashmere Gate. That he took Rakesh along with him as

also PW-17. That at the pointing out of Rakesh, the appellant

was arrested and arrest memo Ex.PW-17/C was prepared.

That he interrogated the appellant who made a statement

Ex.PW-5/B and pursuant thereto led the police to Saini Halwai

Shop and from a naali near Hanuman Mandir got recovered

the knife Ex.P-1. That it was seized vide memo Ex.PW-17/D

and that the sketch Ex.PW-16/A thereof was drawn in his

presence.

29. The learned trial Judge has held that eye witnesses

have corroborated each other with respect to the presence of

each other and the appellant being the assailant. Learned

trial Judge has held that the motive of the crime i.e. the

quarrel which took place the last evening has also been

established by the testimony of each witnesses who have

corroborated each other.

30. Certain variations and contradictions which have

been urged even before us and which we would be discussing

hereinafter, have been noted by the learned trial Judge and a

finding has been returned that the variations are natural and

pertains to the fringes of the deposition of the witnesses and

do not affect the credibility of their evidence pertaining to the

core area of the fact in issue.

31. The first and foremost thing noted by the learned

trial Judge and which has been argued before us is that

Rakesh PW-5, the complainant, at whose instance the FIR has

been registered stated during cross examination that he

made no statement at the hospital and that he had signed

some papers in the Police Station. That the police had shown

him the papers. He had merely signed the same.

32. As regards the said statement made by Rakesh

during cross examination, it is important to note that in

examination in chief he deposed that he took his brother to

the hospital where his brother was declared dead. He

deposed : "My statement was recorded by the police. Same

is Ex.PW-5/A. It bears my signatures at Point A". He stated

that the police took him to various places to search the

accused and that he was taken to a bus stand. He deposed:

"the accused was found present at the bus stand and I

identified him. The accused was brought to New Usmanpur

where from he brought out a chhuri which was lying in a

naali".

33. That Rakesh comes from a humble background is

evidenced by the fact, as disclosed by him while deposing in

Court, he is a carpenter by profession. His command over the

language would presumably be weak. Witnesses and

especially those who come from humble background get

overwhelmed in a Court room. They tend to mix up facts.

What is relevant to be noted is that Rakesh has admitted that

the police recorded his statement and that the same was

Ex.PW-5/A and that it bears his signatures at point „A‟. It is

not out of place to note that while deposing in Court, Rakesh

has stated the same facts which have been recorded in

Ex.PW-5/A. Further, Rakesh has deposed that the police took

him to various places to search the accused and that he

pointed out the accused at a bus stand and after he was

arrested by the police the accused was brought to New

Usmanpur and from a naali in New Usmanpur the accused

brought out a chhuri.

34. It is apparent that the witness has proved, if not

the disclosure statement of the accused, at least, the factum

of recovery of a knife from a place at the pointing out by the

accused.

35. It is true that on being cross-examined Rakesh

stated that firstly the deceased was taken in a rickshaw and

thereafter in a TSR to the hospital. But, that does not mean

that there is a contradiction in the testimony of PW-6 and PW-

16 who deposed that the deceased was removed to the

hospital in a TSR.

36. The sight of blood unnerves even man of steel.

When a person is injured with a knife, the scene at the spot

becomes fairly chaotic. Witnesses and specially if they are

the near and dear ones of the injured, get extremely

perturbed, confused and in a state of excitement. Their

concern is to see that medical aid is given to the injured

without loss of time. Their concern is not to know as to who is

doing what. As observed by the Supreme Court in the

decision reported as Bharwada Bhoginbai Hirjibhai v State of

Gujarat AIR 1983 SC 753:-

"Over much importance cannot be attached to minor discrepancies. The reasons are obvious: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen:

(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the

main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person,

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.

Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses." (Emphasis supplied)

37. Indeed, every person who witnesses a murder

reacts in his own way. Some are stunned, some become

speechless and stand rooted to the spot. Some become

hysteric and start wailing. Some start shouting for help.

Others run away to keep themselves as far removed from the

spot as possible. Yet others rush to the rescue of the victim,

even going to the extent of counter-attacking the assailants.

Every one reacts in his own special way. There is no set rule

of natural reaction.

38. Indeed, the deposition of Manju Devi PW-9 brings

out the aforesaid. She stated that when she saw her husband

attacked she became nervous. She started crying. She just

do not remember as to what happened thereafter. This is

natural conduct of an Indian housewife. Manju wife of Ashish

was aged 18 years when she saw her husband being

attacked.

39. With respect to the presence of Rakesh, Anil,

Manju and Ikram at the spot, as noted herein above, she has

corroborated the presence of each other. The only point

worth noting is that Rakesh, Anil and Ikram have not talked

about Manju being present. They have not done so for the

reason as stated by Manju herself, she started crying. She

became nervous. She just did not remember as to what had

happened. It is obvious that Manju remained stationed and

rooted at the door of her house. The male members of the

family and Ikram did the rescue act. Thus, presence of Manju

was not noted by them.

40. Pertaining to the place of arrest of the accused, no

doubt, Ikram has stated that the accused was apprehended at

the spot by the public and was tied to a pole and was handed

over to the police who came to the spot soon thereafter.

41. But, it would be important to note that in his

deposition, pertaining to the recovery of the knife he

deposed: "Knife was recovered in front of Saini Sweet Shop.

The knife was packed. Its search memo Ex.PW-16/A bears my

signatures. Pointing out-cum-recovery memo Ex.PW-16/B

bears my signatures at point „A‟. The knife is Ex.P-1."

42. Ikram has supported the recovery of the knife at

the instance of the appellant from in front of Saini Sweet

Shop. Ikram has affirmed and proved the pointing out-cum-

recovery memo and the sketch of the knife which was drawn

in his presence.

43. Now, if the appellant was apprehended at the spot,

the knife would be recovered from the spot itself. This has

not happened.

44. Ikram also comes from a humble background. He

deals in sale and purchase of cloth. New Usmanpur is an

unauthorized colony in Delhi. It is inhabited by the under-

privileged. The wild imagination of Ikram to project a scene

of Hindi movie perhaps seen by him had led him intermingle

imagination with reality. His statement that the accused was

apprehended at the spot and tied with a pole, is an

introduction of fantasy in the reality. After fantasizing the

same, Ikram re-entered the world of reality by deposing facts

pertaining to the recovery of the knife at the instance of the

accused from a place in front of Saini Sweet Shop.

45. The part of testimony of Ikram pertaining to

apprehension of the appellant at the spot has to be severed.

In any case, two witnesses, viz. PW-5 and PW-6 have

corroborated PW-17 and PW-18 pertaining to the

apprehension of the appellant from ISBT Kashmiri Gate.

46. We are satisfied that the evidence on record

establishes the presence of the appellant at the spot and that

the appellant attacked the deceased and inflicted two knife

blows on the chest of the deceased which have proved to be fatal.

Indeed, the doctor who conducted the post-mortem of the

deceased opined that both injuries were individually and

collectively sufficient to cause death in the ordinary course of

nature.

47. The knife used by the appellant as per its sketch

Ex.PW-6/A shows that it has a blade of 16 cms. It has a handle of

13 cms. The knife is akin to a dagger. The ferocity of the blows is

evidenced by the internal injuries which have cut through the lung.

It is obviously a case where the intention to cause death is

evidenced by the act and the weapon of offence used. The motive

for the crime, as noted above, is the incident of the previous night.

That at 9‟o clock in the morning the appellant came armed with a

knife also indicates the intention of the appellant.

48. We are satisfied with the view taken by the learned

Trial Judge. We find no infirmity in the impugned decision.

49. The appeal is dismissed.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

March 18, 2009 vk