Ravi vs State
2009 Latest Caselaw 876 Del

*               HIGH COURT OF DELHI AT NEW DELHI


+                              Crl. Appeal No. 442/2007


%                                Date of Order : March 18, 2009


RAVI                                            ..... Appellant
                           Through : Mr. Ashish Kumar Das, Advocate


                                    VERSUS


STATE                                           .....Respondent
                           Through : Ms. Richa Kapoor, 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?      Yes.

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

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



PRADEEP NANDRAJOG, J. (Oral)

1. Being unconventional, but to save on time and

paper, we commence our decision a little unconventionally.

We note the answer given by the appellant after his

statement was recorded under Section 313 Cr.P.C., to the

question: do you want to say anything else in this case? The

appellant replied:-

"I have been falsely and wrongly implicated in this false case. I went to Gopala Tower in search of a job at 7th Floor in the office of CADMACH Pharmaceutical and while I was coming down from the 7th Floor, I saw that a man was running and one person was crying that „maar diya‟ „mar diya‟. On hearing this, I also tried to chase that man and the man who was running absconded somewhere. I fell down and sustained injuries on my right hand fingers from a piece of glass. Blood started oozing out from my hands. The police arrested me under the impression that I am the assailant. Thereafter, I was falsely implicated in this case by the police."

2. It is apparent that the appellant was apprehended

at the spot and had an injury on his hand. His MLC Ex.PW-2/A

records that the appellant was brought to Sucheta Kriplani

Hospital at 6:45 PM on 21.6.2000 by HC Kartar Singh and

Const.Suresh PW-6 who told the doctor that the appellant had

suffered the injury from a knife while stabbing a victim.

3. The place of the incident is Gopala Tower, 25,

Rajender Place, New Delhi. The time is around 6:00 PM. The

date is 21.6.2000.

4. HC Kartar Singh PW-26 posted in the PCR Van

„OSCAR‟ received information at 6:16 PM on 21.6.2000 that a

person had been killed at Gopala Tower. He proceeded in the

van to Gopala Tower and on reaching there found a young

man standing who was encircled with public persons. The

young man was having knives in his hands and a bag on his

shoulder having blood stains thereon. He saw the young man,

on seeing the PCR Van, put the knives in the bag. With the

help of Const. Neeraj Kumar, HC Kartar Singh apprehended

the young man and took possession of the bag in which the

knives were kept. The young man is the appellant.

5. In the meanwhile, DD No.24-A was recorded at PS

Prasad Nagar at 6:15 PM by the Duty Constable regarding a

stabbing incident at Gopala Tower. SI Umesh PW-32

accompanied by Const. Prem Singh and HC Kattar Singh left

for the spot. They reached soon thereafter and from HC

Kartar Singh took custody of the appellant and the bag in

which the two knives were kept. The sketch of the two knives

Ex.PW-9/A and Ex.PW-9/B were prepared by SI Umesh. While

SI Umesh was preparing the sketch of the two knives, the SHO

of the police station, Inspector S.S.Malik PW-33 also reached

the spot as he had received a wireless message of the

incident. He seized the two knives vide seizure memo Ex.PW-

9/C and completed the formality of the formal arrest of the

appellant vide arrest memo Ex.PW-9/E.

6. The appellant, who had a knife injury on his hand,

was sent to Sucheta Kriplani Hospital under custody of HC

Kartar Singh where his MLC Ex.PW-2/A was drawn up after he

was examined by the doctor.

7. Jagdish, working with Indian Toners & Developers

Ltd. was present at the spot and claimed to be an eye

witness. Inspector S.S.Malik PW-33 recorded his statement

Ex.PW-4/A and made an endorsement Ex.PW-33/A thereon

and handed over the same to Const. Rajbir for registration of

an FIR.

8. A photographer was summoned at the spot who

took photographs. The site plan was prepared. The body of

the deceased named Shiva was taken into possession vide

seizure memo Ex.PW-32/A and the body was sent for post-

mortem.

9. Dr.Aakash Jhanjee PW-3, conducted the post-

mortem on 22.6.2000 and on the post-mortem report Ex.PW-

3/A noted as many as 23 injuries, which as per his testimony

in Court, were caused by two different sharp edged weapons.

He opined that the death was caused by haemorrhagic shock

consequent upon the injuries. Thereafter a few days later,

with reference to the two knives which were recovered from

the appellant at the spot, he opined that the injuries could be

caused by the said two knives.

10. At the spot on 21.6.2000 itself, apart from Jagdish

at whose instance the FIR was recorded, one Sandeep PW-5,

Kailash PW-7, A.K.Channana PW-8, B.N.Joshi PW-10 and

N.L.Gautam PW-30, who claimed to be eye witnesses and

were present at the spot when the police arrived, made

statements implicating the appellant.

11. The bag and the blood stained knives which were

recovered at the spot itself by HC Kartar Singh from the

possession of the appellant, along with the blood sample of

the deceased were sent to the serologist and as per report

Ex.PW-21/A, Ex.PW-21/B and Ex.PW-21/C, it was opined that

the blood group of the deceased was of Group „O‟ and that

human blood of same group was found on the bag. On the

two knives, human blood was detected, but on reaction, did

not yield the group thereof.

12. Needless to state the fate of the case of the

prosecution hinged upon the testimony of the eye witnesses.

13. At the trial PW-4, PW-5, PW-8 and PW-10 turned

hostile and save and except admitted their presence at the

spot and Shiva being murdered, resiled from their earlier

statements, in which they had implicated the appellant.

14. PW-7 Kailash Singh, employed in the kitchen of

Indian Toners & Developers Ltd. deposed that on 21.6.2000

he was present in the kitchen at around 6:00 PM and heard an

alarm. That Jagdish PW-4 and Sandeep PW-5 came out of

their office along with him. They ran towards the 6 th Floor.

He kept standing on the 5th Floor. He saw the appellant with

two knives in his hands going towards the ground floor.

Jagdish yelled from the 6th Floor that the appellant be chased

as he had killed Shiva. That he i.e. PW-7 chased the accused

and followed him till the ground floor. He raised an alarm.

The Estate Manager and 10-15 drivers surrounded the

accused and after sometime the police came and

apprehended the accused.

15. In cross examination, he admitted having made

some statements in Court which were not forming part of his

statement made to the police i.e. his statement under Section

161 Cr.P.C. We shall be referring to said statement while

discussing the contentions made by learned counsel for the

appellant. During cross examination he made an admission

that the accused was chasing a person, but immediately

corrected by saying that we were running after the accused.

He further stated: it is wrong to suggest that accused had

come in the premises and he was the person among the

crowd who were following the person who had inflicted the

injury on the person of Shiva.

16. PW-30 Sh. N.L.Gautam, deposed that he was the

Estate Manager Gopala Tower and that on 21.6.2000 was

sitting in his cabin at 6:00 PM. He noticed a person running

downstairs said person was being followed by some persons

who were shouting „chor chor‟. He came out. A good crowd

had gathered. The crowd encircled the boy who had two

knives in his hands. That boy started saying „call police, call

police‟. He said that he was under fear of being beaten by the

crowd. The police arrived and apprehended the boy. PW-30

identified appellant as the boy who was holding the knives

and was apprehended.

17. HC Kartar Singh PW-26 deposed that while posted

in the PCR Van „OSCAR‟, on 21.6.2000 he received a call at

around 6:16 PM informing that a person had been killed in

Gopala Tower. He proceeded in the van to Gopala Tower and

on reaching there found a young man standing who was

encircled with public persons. The young man was having

knives in his hands and a bag on his shoulder having blood

stains thereon. He saw that the young man, on seeing the

PCR Van, put the knives in the bag. With the help of Const.

Neeraj Kumar he apprehended the young man and took

possession of the bag in which the knives were kept. He

deposed that appellant was the young man apprehended at

the spot.

18. SI Umesh PW-32 and Inspector S.S.Malik PW-33

deposed having reached the spot and taking custody of the

appellant and his formal arrest as also the seizure of the bag

containing the two knives which was handed over by HC

Kartar Singh to them. We note that S.S.Malik PW-33 stated in

cross-examination that he recorded the statement of Anita

PW-29 on 13.7.2000. PW-6 Const.Suresh Chand stated in

cross-examination that he had received the pullandas

containing the clothes of the appellant from the doctor on

31.6.2000.

19. Since certain submissions have been made with

reference to the testimony of PW-24, PW-25 and PW-11, all

police officers, we note their testimony in brief and the

relatable controversy thereto.

20. PW-11 HC Satpal, deposed that he was on duty as

a motorcycle rider on 21.6.2000 and while patrolling saw a

crowd at Gopala Tower. A PCR Van was parked. He saw the

appellant in custody and that HC Kartar Singh had recovered

two chhuras from the appellant which he handed over to SI

Umesh who prepared the sketches Ex.PW-9/A and Ex.PW-9/B

in his presence and that the seizure memo Ex.PW-9/C was

prepared in his presence. In cross examination he admitted

that nothing was recovered from the spot in his presence.

21. PW-24 Const. Manish Kumar deposed that on

31.8.2000 he took 13 pullandas from the Malkhana to FSL

Malviya Nagar, but in cross examination stated that the

probable date was 30.8.2000.

22. PW-25 Inspector Laxmi Narain, deposed that the

investigation of the case was taken over by him on 4.8.2000

and on 30.8.2000 he arranged to send 13 pullandas to the

Forensic Science Laboratory at Malviya Nagar.

23. Anita PW-29, deposed that she knew accused Ravi

as he was her classmate since school and both had studied

together from the 8th Standard to the 12th Standard. They fell

in love in 12th Standard. Due to unavoidable reasons their

married could not be formalized and she stopped meeting

Ravi. Six years after Ravi i.e. the appellant surfaced, but by

that time she was engaged to the deceased Shiva. That 2-3

days after her engagement she received a phone call from

Ravi extending congratulations but thereafter he started

pestering her to break her engagement. She refused. She

told Shiva about her past. Shiva told her that she could go

back to Ravi. She told Shiva that because Ravi had

abandoned her six years ago she was not ready to go back to

him. Shiva wanted the residential address of Ravi. Ravi told

her not to give his residential address but could give his office

phone number. That Ravi started threatening Shiva. That on

21.6.2000 she received a call from Ravi at around 9:30 AM

and he told her „mera deemag bahut garam ho raha hai‟ and

requested her to come back to him otherwise there may be

bad consequences. At 2:30 PM she received another call from

Ravi who pressurized her to return to him.

24. In cross examination she deposed that her

statement was recorded by the police on 22.6.2000.

25. Vide impugned judgment and order dated

16.5.2007, the appellant has been convicted for the offence of

murdering Shiva and for possessing and using the two knives,

has been convicted for the offence punishable under Section

27 of the Arms Act. The appellant has been directed to

undergo imprisonment for life for the offence of murdering

Shiva.

26. At the hearing today learned counsel for the

appellant urged that neither PW-7 nor PW-30 are truthful

witnesses. Learned counsel urged that PW-7 had made 3

improvements in his deposition in Court, in that, deposed that

(i) he had followed the accused towards the ground floor (ii)

and while so doing had made noises and (iii) lastly 10-15

drivers surrounded the accused. We note that said 3

statements do not form part of his statement recorded by the

police.

27. To our mind the alleged improvements are

inconsequential. Relevant would it be to note that certain

accompanying statements pertaining to a fact in issue have

not to be put at par with evidence given by a witness which

directly relates to a fact in issue.

28. It happens more than once, that immediately after

a gruesome incident is seen, for sometime the mental

faculties are impaired and one omits some minor points but

discloses the same, when in composure.

29. As noted in para 15 above, the witness made an

admission during cross examination that the accused was

chasing a person, but immediately corrected by saying that all

were running after the accused. He categorically deposed it is

wrong to suggest that accused had come in the premises and

he was the person among the crowd who were following the

person who had inflicted the injury on the person of Shiva. It

is apparent that a slip of the tongue is sought to be

capitalized upon. We find no merit in the plea urged at the

hearing that the admission of PW-7 shows that the appellant

was a person who was chasing the assailant.

30. Pertaining to the testimony of PW-30, learned

counsel urged that in cross examination the witness stated

that his statement mark „C‟ was not made by him and it was

never read over to him. But we wonder, as to what turns

thereon. The fact of the matter remains that while deposing

in Court, PW-30 identified the appellant as the person whom

he saw armed with two knives and was apprehended at the

spot.

31. Pertaining to the deposition of PW-24 and PW-25,

suffice would it be to note that both witnesses deposed in the

year 2004 and whether the date on which the pullandas were

deposited at the FSL Malviya Nagar was 30.8.2000 or was

31.8.2000, could well be a memory lapse. In any case, it is

not the case of the appellant that the seals were tampered

with. Unfortunately, the Malkhana register was not produced

in evidence and therefore there is no evidence as to whether

the pullandas were taken out from the malkhana on

30.8.2000 or 31.8.2000. In any case, the fact that there is no

controversy that the seals were tampered with, makes the

issue a non-issue.

32. With reference to the deposition of PW-11, as noted

above, a submission was urged that the recovery of the

knives from the appellant stands disproved because, in cross-

examination, PW-11 admitted that nothing was recovered

from the spot in his presence.

33. The argument is without a foundation for the

reason, in his deposition PW-11 deposed: Kartar Singh had

already recovered two chhuras, which he produced to SI

Umesh, IO prepared the sketches of the said chhuras and

thereafter he prepared the parcel and fixed the seal of UB on

the said parcel. The sketches of Ex.PW-9/A and Ex.PW-9/B

and the seizure memo is Ex.PW-9/C. Thus, his statement in

cross-examination that nothing was recovered from the spot

in his presence is correct and does not contradict the witness.

Being a police officer, PW-11 was aware of the difference

between the recovery of an object from the spot and the

handing over of an object already recovered. In his

examination-in-chief he has deposed the fact that he saw

Kartar Singh produce the chhuras before the Sub Inspector.

We note that in his deposition Kartar Singh has categorically

deposed that when he reached the spot he took possession of

the bag containing two chhuras from the appellant. We note

that Kartar Singh is the first police officer to reach the spot.

34. The plea, that in his deposition, PW-6 has deposed

that he received the pullanda from the doctor on 31.6.2000

after the appellant was examined by the doctor and hence

this shows that the appellant was not arrested on 21.6.2000

needs to be noted and rejected for the simple reason, the

month of June does not have 31 days. It is apparent that due

to a typographic error the date 21.6.2000 has got wrongly

typed as 31.6.2000.

35. The circumstance of an accused not satisfactorily

explaining his presence at the place where the crime was

committed is an incriminating circumstance.

36. The appellant has sought to explain his presence

by stating that he went to the office of Cadmach

Pharmaceuticals at the 7th Floor in the building called Gopala

Tower i.e. the building where the offence was committed. As

per the appellant when he was coming down he saw a man

running and one man was crying „maar diya maar diya‟; upon

hearing said cry he chased the man who was absconding, but

fell down and thinking that he was the accused, the police

apprehended him. The appellant could have examined a

witness from Cadmach Pharmaceuticals to prove the said fact.

No attempt has been made by the appellant to do so.

37. The appellant has admitted injuries on his right

hand fingers and blood oozing there from when he was

apprehended. He has sought to explain the injury by stating

that when he was chasing the absconder, he fell down and

sustained injuries on the fingers of his right hand from a piece

of glass. It is not in dispute that after he was apprehended,

the appellant was taken to Lady Hardinge Medical College and

was examined by Dr.Sonia who prepared the MLC Ex.PW-2/A.

She was examined as PW-2. Not a suggestion has been put to

her by the appellant nor has she been questioned whether the

cut injury suffered by the appellant could be the result of

falling on glass. It is important to note that had this

happened, glass stained with blood would have been found at

the site of the crime. None was lifted from the spot by the

police.

38. We see no reason as to why the police officers and

in particular HC Kartar Singh PW-26, to whom no suggestion

has been put of any animus against the appellant, should

depose falsely against the appellant.

39. Conduct of an accused pertaining to motive for any

fact in issue is relevant under Section 8 of the Evidence Act.

The deposition of PW-29 shows the obsession of the appellant

with her. That on 21.6.2000, at around 9.30 AM, the appellant

rang up PW-29 and told her "mera deemag bahut garam ho

raha hai" shows his mental condition. The fact that he

contacted her for the second time on said date at around 2.30

PM and pressurized her to return to him is also relevant and

incriminating in the context of the mental condition of the

appellant on 21.6.2000 i.e. the day when Shiva was

murdered.

40. The last submission that the investigating officer

PW-33 deposed that he recorded the statement of Anita on

13.7.2000 and hence there is an inordinate delay in recording

Anita‟s statement, has no meaning unless it is shown that in

the interregnum Anita could have cooked up a story. In this

connection, it is relevant to note that Anita PW-29

categorically deposed that her statement was recorded by the

IO on 22.6.2000. It appears that the investigating officer

wrongly mentioned the date for the reason, we note that

along with the challan the statement of Anita recorded by the

police has been filed and it bears the date 22.6.2000. That

apart, Anita is not an eye-witness. She has only deposed

about her past affair with the appellant and the appellant

abandoning her and she being engaged to the deceased and

soon thereafter the appellant again re-entering her life and

pestering her to marry him. Her deposition establishes a

motive i.e. to do away with a suitor and marry the girl.

41. It would be interesting to note that Anita has

subsequently married the appellant and even an attempt was

made to re-examine Anita; obviously for the reason, Anita has

married the appellant and she would have resiled from her

earlier deposition. What we want to convey is that Anita had

no motive to falsely implicate the appellant and at the

relevant time she spoke the truth.

42. We find no merit in the appeal. The appeal is

dismissed.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

March 18, 2009 mm