Vijender @Bijo vs State
2009 Latest Caselaw 879 Del

*                     IN THE HIGH COURT OF DELHI

%                            Judgment reserved on : 12.03.2009
                             Judgment delivered on: 18.03.2009

+                               CRL.A. No.246/2001

       VIJENDER @BIJO                                 ...Appellant
                           Through :   Mr.Gagan Chhabra, Advocate.

                                  versus

       STATE                                            ...Respondent
                           Through :   Ms.Richa Kapoor, Advocate.

                                CRL.A. No.434/2001

       OM PRAKASH                                     ...Appellant
                           Through :   Mr.Gagan Chhabra, 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 papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J.

1. At 8.05 AM on 23.9.1997 Inspector Mahesh Kumar

PW-16 was handed over copy of DD No.8, Ex.PW-8/A which

recorded that a lady was stabbed near the house of one Chet

Ram. Accompanied by HC Satya Prakash PW-11, he proceeded

to the spot and was informed that two persons, who were

injured, had been removed to Safdarjung Hospital. Both

proceeded to Safdarjung Hospital and learnt that a lady named

Anita was brought dead at the hospital at 8.50 AM, as recorded

in the MLC Ex.PW-15/A. A male, named Zahir Alam, was

admitted in an injured condition having a lacerated injury on the

scalp and an abrasion on the left elbow as per MLC Ex.PW-15/C

of Zahir Alam. He was fit for making a statement. Inspector

Mahesh Kumar PW-16 recorded the statement Ex.PW-13/A of

Zahir Alam and made an endorsement Ex.PW-16/A thereon and

forwarded the same through HC Satya Prakash PW-11 for

registration of a First Information Report. The statement and

the endorsement was dispatched at 11.40 AM and pursuant

thereto HC Usha Rani PW-5 registered the FIR Ex.PW-5/A.

2. Back at the spot, Inspector Mahesh Kumar prepared a

rough site plan Ex.PW-16/B at the instance of Ramwati PW-1, the

mother of Anita. He lifted blood stained earth from the spot

where Anita was stated to have been stabbed as also from a

room where Zahir Alam was stated to have been injured.

3. The body of Anita was sent for post-mortem to the

mortuary where Dr.Alexander PW-12 conducted the post-

mortem and in the post-mortem report Ex.PW-12/A noted fifteen

injuries on her person, being as under:-

"1. Lacerated wound on the left side top back of head of size 4.5 cms x .7 cms x .5 cms.

2. Lacerated wound on the right side of forehead of size 3 cms x 1 cms x 5 cm.

3. Lacerated wound on the left side of forehead 1 cm above the left eyebrow of size 3 cms x 1 cms x 5 cms.

4. Abrasion on the right side of face over the zygomatic process of size 1.7 cms x 1.2 cms.

5. Horizontal stab wound on the anterior aspect of left side chest at the level of 2nd intercostals space of size 2.3 cms x 1 cm x 32. Cms. Both the margins were sharp and clean cut. The medial edge was sharp and acute and the lateral edge was blunt. The Centre of the wound was 132 cms above the level of left heel and 2.5 cms lateral to the median plain. The direction of the wound was backwards horizontal and slightly lateral.

6. Horizontal stab wound on the anterior aspect of left side chest at the level of 5th intercostals space of size 2.5 cms x .5 cms x 3.5 cms. Both the margins were sharp and clean cut. The medial edge was sharp and acute and the lateral edge was blunt. The centre of the wound was 124.5 cms above the level of left heel and 1 cms lateral to the median plain. The direction of the wound was backwards, horizontal and lateral.

7. Horizontal stab wound on the anterior lateral aspect of left chest at the level of 6th intercostals space of size 3 cms x 1 cm x 4.5 cms. Both the margins were sharp and clean cut. The medial edge was sharp and acute and the lateral edge was blunt. The centre of the wound was 120 cms above the level of left heel and 7 cms lateral to the median plain. The direction of the wound was backwards, slightly downwards and medial.

8. Incised wound on the lateral aspect of left arm middle third of size 7 cms x .3 cms x .3 cms.

9. Oblique stab wound on the right epigastric region of the anterior abdomen of size 2.8 cms x 1 cms x 7 cms. Both the margins were sharp and clean cut. The lateral edge was upwards and blunt and the medial edge was downwards and acute. The centre of the wound was 115 cms above the level of right heel

and six cms lateral to median plain. The direction of wound was backwards, downwards and slightly medial.

10. Oblique stab wound ont eh right umbilical region of the anterior abdomen of size 2.5 cms x 1 cms x 3 cms. Both the margins were sharp and clean cut. The medial edge was sharp and upwards and the lateral edge was blunt and downwards. The centre of the wound was 111 cms above the level of right heel and 9 cms lateral to median plain. The direction of the wound was backwards, lateral and slightly downwards.

11. Incised wound on the vertical aspect of middle philaynx of right ring finger of size 1 cm x .3 cm x .3 cm.

12. Incised wound on the lower third medial aspect of right thigh of size 1 cm x .5 cms x .5 cms.

13. Incised wound on the superior lateral aspect of right knee of size 3 cms x .5 cms x 1.2 cms.

14. Incised wound on the left side of pelvis, over the left posterior, superior, liac spine of size 3 cms x 2 cms x .5 cms.

15. Abrasion on the front of left knee of size 1.3 cms x 1 cm."

4. He recorded that internal examination showed that

the stab wound No.5 had pierced the left upper lobe of the lung

at the medial border and that injury No.6 had punctured the

right ventricle of heart and the inferior vena cava. Injury No.7

was noted to have cut through the intercostal muscles and the

pleural cavity and thereafter had pierced the lower lobe of the

left lung. He opined that the said injuries were individually and

collectively sufficient in the ordinary course of nature to cause

death. He opined that injuries No.1, 2, 3, 4 and 15 were caused

by blunt force impact with a blunt object and that injuries No.5

to 14 were caused by a sharp edged weapon.

5. Since in his statement, Ex.PW-13/A, Zahir Alam had

named the appellants as the assailants of Anita and named

appellant Vijender as the one who had hit him with a thapki (a

wooden bat shaped object used for washing clothes), the police

started searching for the appellants who were found absconding

from their respective houses and were ultimately arrested on

29.9.1997 near Prakash Puri Ashram, Gurgaon. Both were

interrogated. Appellant Vijender made a disclosure statement

Ex.PW-16/G and inter alia stated that the thapki with which Zahir

Alam and Anita were assaulted by him was hidden by him and

that he could get the same recovered. Appellant Om Prakash

made a disclosure statement Ex.PW-16/H and inter alia stated

that a button operated knife, used by him to stab Anita, was

hidden by him and that he could get the same recovered.

Thereafter, appellant Vijender led the police to Oberoi Farms

and from near a wall got recovered a thapki Ex.P-2 which was

seized vide seizure memo Ex.PW-16/L, sketch whereof drawn by

Inspector Mahesh Kumar is Ex.PW-16/K. Appellant Om Prakash

led the police to the shop of Vijender and got recovered a button

operated knife Ex.P-1 which was seized vide seizure memo

Ex.PW-16/J, sketch whereof drawn by Inspector Mahesh Kumar is

Ex.PW-16/I.

6. SI Madan Pal, a draftsman was later on taken to the

site, who under instructions of Inspector Mahesh Kumar

prepared the site plan to scale Ex.PW-10/A.

7. On 21.10.1997 the thapki and the knife were sent for

opinion to Dr.Alexander, who opined that injuries No.1, 2, 3, 4,

and 15 on the person of Anita could possibly be caused by the

thapki and that the remaining injuries could be caused by the

knife.

8. During investigation, Ramwati PW-1, mother of Anita

disclosed to Inspector Mahesh Kumar PW-16 that Vijender had

hit Anita with the thapki and Om Prakash had stabbed her with a

knife. Amarjeet PW-2 informed the police that around the time

when Anita was stabbed, in his taxi, he had dropped the

appellants at village Khatwali. Anand Prakash PW-3, a resident

of the area, was associated as an independent witness when the

knife was recovered pursuant to the disclosure statement of Om

Prakash and after he i.e. Om Prakash led the police to the shop

of Vijender from where the knife was recovered.

9. A charge-sheet was filed against the appellants for

having murdered Anita and for having attempted to murder

Zahir Alam.

10. At the trial, Amarjeet PW-2 and Anand Prakash PW-3

turned hostile and did not support the case of the prosecution.

11. Ramwati PW-1 also did not support the case of the

prosecution save and except to a limited extent of deposing that

Anita was residing in Kapashera with Zahir Alam and that Anita

was the wife of appellant Om Prakash but had left him to live

with Zahir Alam.

12. Zahir Alam PW-13 deposed that in the year 1997 he

was residing in a room in village Kapashera and Anita used to

live with him along with her mother Ramwati PW-1. That on

23.9.1997 appellants came to his residence and inquired as to in

what capacity he had kept Anita with him. He informed them

that he had married Anita. That the appellants told him to show

papers, in proof of his marriage with Anita. He informed them

that the papers were with his brother. Thereafter, appellant

Vijender picked up a thapki and hit him on his head. Om

Prakash took out a knife. Crying, Anita went outside and

reached near a water tank. Vijender started hitting Anita with

the thapki and Om Prakash inflicted knife injuries on her

stomach and thereafter ran away. He summoned the police and

removed Anita to Safdarjung Hospital where the police recorded

his statement Ex.PW-13/A. He deposed that Ramwati PW-1 was

present in the house when the appellants came there.

13. On being cross-examined he deposed; since an

argument was advanced in relation to the said part of the

deposition of Zahir Alam, we propose to reproduce the same

verbatim. It reads as under:-

"On the day of incident the accused persons remained in my room hardly for five minutes. Firstly the accused asked politely but thereafter they raised their voices and there was noise. No neighbour came in the verandah or to my room on hearing noises. I was not knowing the names of any of the accused when they came to my room nor I was knowing them otherwise or their relation with Anita. The mother of Anita told me the names of both the accused persons after they left the room. Their relation with Anita was also told by mother of Anita. Mother of Anita told me the names of accused and their relationship with Anita after they left the room. ................... After my mother-in-law told me the names of the accused and their relationship with Anita, I along with my mother-in-law went after the accused persons ............ Injuries had been caused to me in the room itself and blood had oozed out of my wounds and had fallen on the floor of room also. ........ Anita had not received any injury when she left the room........... The place where Anita was caused injuries was at a distance of thirty or forty steps from the main gate of the building. One side there was a building and on other side there was a vacant plot, where Anita was caused injuries. The water tank was inside the ground and no water tank was outside the ground............ The accused persons stayed near water tank for about two minutes. ........... I saw the incident while I was on way."

14. Dr.Geetanjali Dey PW-15, proved the MLCs of Anita

and Zahir Alam respectively being Ex.PW-15/A and Ex.PW-15/C.

Dr.Alexander PW-12, who conducted the post-mortem of Anita

proved his report Ex.PW-12/A and deposed facts regarding his

opinion given with respect to the thapki and the knife as the

possible weapons with which the injuries could be inflicted on

Anita.

15. The various police officers associated with the

investigation deposed the relevant facts pertaining to the

investigation conducted or the investigation with which they

were associated as also the registration of the FIR. We do not

note their deposition for the reason, no arguments were

advanced at the hearing of the appeal pertaining thereto; save

and except to note that SI Madan Pal PW-10 proved the site plan

Ex.PW-10/A and Inspector Mahesh Kumar PW-16 deposed the

facts pertaining to the investigation conducted by him and

proved the rough site plan Ex.PW-16/B.

16. Notwithstanding PW-1, PW-2 and PW-3 turning

hostile; believing Zahir Alam PW-13 as a truthful witness and

finding corroboration to his ocular testimony with reference to

his MLC and the post-mortem report of Anita; linking further

incriminating evidence in the form of the thapki Ex.P-2 and the

knife Ex.P-1 (which were duly identified by Zahir Alam as the

weapons of offence seen by him) recovered pursuant to the

disclosure statements of the appellants and at their instance;

the learned Trial Judge has convicted the appellants of having

murdered Anita. Pertaining to the injury inflicted on Zahir Alam,

both appellants have been convicted for the offence punishable

under Section 323/34 IPC. Vide order of sentence dated

21.3.2001, for the offence of murder, the appellants have been

directed to undergo imprisonment for life and for the offence

punishable under Section 323/34 IPC, they have been sentenced

to undergo imprisonment for three months. Both sentences

have been directed to run concurrently.

17. At the hearing of the appeals, learned counsel for the

appellants urged that the testimony of Zahir Alam showed that

appellant Vijender had accompanied Om Prakash to the room

where Zahir Alam was residing and that Vijender was not armed

with any object. The thapki was picked up at the spot and only

a single blow was inflicted on Zahir Alam and there was no

participative act of Om Prakash in the said assault. That from

the testimony of Zahir Alam it is apparent that the appellants

simply went to enquire as to how Anita was living with Zahir

Alam and that the testimony of Zahir Alam to the effect that

initially both the appellants spoke politely but flared up later on

evidences a sudden rush of blood in the head of Vijender and

therefore Om Prakash cannot be made vicariously liable for the

act of Vijender pertaining to the injury caused to Zahir Alam.

18. The second submission urged was that Zahir Alam

could not have witnessed the appellants inflicting injuries on

Anita. Counsel urged that Zahir Alam admitted during cross-

examination that when Anita went out of the room, she was

followed by the appellants and that Zahir Alam stayed back in

the room and inquired from Anita's mother as to who were the

appellants. She told him that Om Prakash was the husband of

Anita and Vijender was her brother. Counsel urged that this

interactive dialogue between Zahir Alam and Anita's mother

would take at least 10 - 12 seconds, by which time, Anita would

have at least run a distance of 30 - 35 meters. With reference

to the site plan Ex.PW-10/A, learned counsel pointed out that

the spot where Anita was stabbed, i.e. the place where blood

stained soil was lifted, is at a distance of about 50 meters from

the room where Zahir Alam and Anita were living. Learned

counsel further pointed out that the site plan charters the route

taken by Anita to reach the spot where she was stabbed. It was

pointed out that to reach said spot, Anita had to run a distance

of 7 meters towards the South after coming out of the room and

thereafter, taking a turn towards the right she had to run in the

Western direction for about 15 meters and again taking a turn

towards the right, had to run a distance of 13 meters.

Thereafter, taking a turn towards the left she had to run in the

Western direction for another about 16 meters. Counsel urged

that under no circumstances could Zahir Alam see Anita being

chased, much less stabbed and hit by the assailants.

19. With respect to the post-mortem report of Anita,

learned counsel for the appellant did not dispute that two

weapons of offence were used and hence there were two

persons who had attacked Anita.

20. We propose to deal with the second contention urged

before dealing with the first.

21. Let us recreate the scene in the room immediately

after Anita went out and was followed by the appellants; as per

the testimony of Zahir Alam:-

"Scene: Anita has left the room followed by the appellants, one of whom, namely Vijender is holding a thapki and the other, Om Prakash is holding a knife.

Zahir Alam to Ramwati: Who were these men?

Ramwati to Zahir Alam: One of them is the ex-husband of Anita and the other is her brother.

Zahir Alam to Ramwati: Who is who?

Ramwati to Zahir Alam: The one who hit you with the thapki is Anita's brother and the other who had the knife in his hand is her ex-husband."

22. We have timed the conversation. It takes precisely

14 seconds to conclude the dialogue while speaking with the

ordinary speed.

23. It is apparent that by the time Zahir Alam left the

room, Anita would have run across the first 7 meters of the

street as also the next 14 meters and probably even the third

segment spanning 13 meters and would have taken at least 2

turns, each at right angle, and under no circumstances could

Zahir Alam have seen Anita being chased. By the time even he

ran the said 3 segments covering a distance of 7 meters, 14

meters and 13 meters respectively and had reached the last

segment, Anita would have already reached the spot where she

was attacked. From the site plan it is apparent that he who

reached the last segment of the route chartered by Anita could

see the spot where Anita was stabbed; thus, the time covered to

run the last segment covering 16 meters is irrelevant.

24. But, that does not mean that Zahir Alam could not

have seen the appellants attacked Anita. The reason is obvious.

There are 10 stab injuries on the person of Anita. Some of the

injuries are fairly deep. In fact the two injuries which have

turned out to be fatal are fairly deep. Re-enacting the injuries

being inflicted by the assailant, we note that at least 20 to 25

seconds would be needed if the assailant were to inflict the 10

stab wounds, even giving the benefit that the blows were

inflicted very rapidly. Thus, the 14 second time lag after which

Zahir Alam left the room after Anita, under the facts and

circumstances of the instant case, loses all significance.

25. That apart, it is settled law that facts which are not

themselves in issue may affect the probability of the existence of

facts in issue, and thus can be used as the foundation of

inferences respecting the facts in issue; such facts are relevant

facts. The only requirement is that such facts have to be

relevant to the facts under enquiry and have to be sufficiently

connecting with the later to afford good ground for an inference

as to the existence or non-existence of the facts under enquiry.

Facts which are so closely or inseparably connected with the

facts in issue are often said to be forming part of the same

transaction. A transaction may constitute a single incident

occupying a few moments and encompassing a variety of acts

occurring at the same or different places. All these acts are

constituents of the same incident and are relevant because they

accompany and tend to explain the fact in issue. They form a

chain as it were encircling the fact in issue.

26. Section 6 of the Evidence Act makes relevant, facts

which, though not in issue, are so connected with a fact in issue

as to form part of the same transaction, whether they occur at

the same time and place or at different times and places. It is

important to bear in mind that what is admissible under Section

6 are facts which are connected with the facts in issue as part of

the transaction under investigation. In order that different acts

constitute the same transaction they must be connected by

proximity of time, unity or proximity of place, continuity of action

and community of purpose or design.

27. Where a fact has occurred with a series of acts

preceding or accompanying it, it can safely be presumed that

the fact was possible as a direct cause of the preceding or

accompanying acts unless there exists a fact which breaks the

chain upon which the inference depends.

28. The evidence of last seen is based on the reasoning

above. The last seen theory comes into play where the time-gap

between the point of time when the accused and the deceased

were seen last alive and when the deceased is found dead is so

small that possibility of any person other than the accused being

the author of the crime becomes impossible. To put it

differently, as held in the decision reported as AIR 2003 SC 3131

Mohibur Rahman Vs. State of Assam there may be cases, where

on account of close proximity of place and time between the

event of the accused having been last seen with the deceased

and the factum of death, a rational mind is persuaded to reach

an irresistible conclusion that either the accused should explain

how and in what circumstances the deceased suffered death or

should own the responsibility for homicide.

29. Thus, the fact that the appellants chased Anita and

appellant Vijender was armed with a thapki and appellant Om

Prakash was armed with a button operated knife, and within less

than two minutes of Anita and the appellants leaving the room,

Anita is found stabbed with a knife and hit by a blunt object, are

facts by themselves sufficient to draw an adverse inference

against the appellants unless they explain as to how Anita was

stabbed and hit with a blunt object.

30. There is a clear motive for the crime. The motive is

revealed from the testimony of Zahir Alam. It is clear that the

appellants were not sure whether Anita was living in adultery or

whether she was married to Zahir Alam. Their queries were not

satisfactorily answered because Zahir Alam could not produce

the marriage papers. That, Om Prakash came armed with a

button operated knife shows his intention. It is true that Vijender

did not come armed but it is settled law that an intention to

commit a crime can spring up at the spur of the moment and can

be shared by the accused who otherwise may not have had any

meeting of the mind prior thereto. This intention can be

gathered by the contemporaneous acts of the accused.

31. From the testimony of Zahir Alam it is apparent that

Om Prakash had taken out the knife in the room itself. He

followed Anita. Vijender who had the thapki in his hand also

followed Anita. Both of them used the respective weapon in

their hands. Om Prakash inflicted 10 stab wounds on Anita.

Vijender gave her 5 blows with the thapki. The acts of the two

show participation in the commission of the crime and each

would thus be tainted with the acts of the other.

32. Pertaining to the conviction of the appellants for the

offence punishable under Section 323/34 IPC, suffice would it be

to state that the conviction pertains to the injury caused by

Vijender on Zahir Alam. There is no participative act of Om

Prakash. From the testimony of Zahir Alam it is apparent that

the accused persons were speaking politely and suddenly a

heated argument ensued and at that Vijender struck a blow with

a thapki on Zahir Alam. There is qualitative difference in the

evidence of Zahir Alam till the stage Anita walked out. The

difference is that, by the time Anita had walked out, passions

had already roused and a common intention formed at the spur

can be deciphered from the acts of the appellants. But before

Anita left the room, events prior thereto are qualitatively

different and do not evidence a common intention to attack

Zahir Alam. Thus, on said account, we give benefit of doubt to

appellant Om Prakash vis-à-vis the injury inflicted on Zahir Alam.

33. The appeal filed by Vijender is dismissed. The appeal

filed by Om Prakash is partially allowed, in that his conviction for

the offence punishable under Section 323/34 IPC is set aside.

His conviction for the offence of murder is sustained.

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

surety bonds are cancelled. The appellants shall surrender and

suffer the remaining sentence.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

March 18, 2009 dk/mm