Amandeep vs State
2009 Latest Caselaw 938 Del

*                     IN THE HIGH COURT OF DELHI

%                             Judgment reserved on : 12.03.2009
                              Judgment delivered on: 23.03.2009

+                                CRL.A. No.399/2007

       AMANDEEP                                           ...Appellant
                            Through :   Mr. O.P.Wadhwa, Adv. with
                                        Mr. Javed Akhtar and
                                        Mr. Akashdeep, Advocates

                                  versus


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

                                 CRL.A. No.622/2007

       SANJAY @ SANJU                                     ...Appellant
                            Through :   Mr. Anupam Sharma, Advocate
                                        Mr. Javed Akhtar, 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. Criminal law was set into motion when Const. Kanwar

Singh PW-13, posted as Duty Constable at DDU Hospital,

transmitted information to Police Station Tilak Nagar on the

intervening night of 13th and 14th August 2003 that two persons

named Randhir Chandela @Lala (hereinafter referred to as the

"deceased") and Dhanpal (PW-1) have been admitted in an

injured condition in the hospital.

2. On the receipt of said information, SI Kashmiri Lal PW-10,

accompanied with Const. Dayanand PW-14, reached the

hospital. Simultaneously, Inspector R.K. Ojha PW-23, who had

also received the said information reached the hospital. On

reaching the hospital, they were informed that Randhir

Chandela had been brought dead as noted in the MLC Ex.PW-

3/B and Dhanpal was admitted in an injured condition as noted

in MLC Ex.PW-3/A. It was noted in the MLC Ex.PW-3/A that

Dhanpal was conscious but drowsy and the smell of alcohol

was present. Statement of Dhanpal could not be recorded.

3. Const. Dayanand PW-14, remained at the hospital. SI

Kashmiri Lal PW-10 and Inspector R.K. Ojha PW-23, proceeded

to the spot where the incident took place. It may be noted

that on what basis the said two police officers reached the

place where the offence was committed is not forthcoming on

record, but it appears that they must have learnt about the

same from Dhanpal, whose statement was not recorded by

them. At the spot they met one Neeraj Chandela PW-6, who is

the nephew of the deceased. PW-10 recorded the statement

Ex.PW-6/A of Neeraj Chandela, and made an endorsement

Ex.PW-10/A thereon and handed over the same to Const. Hari

Bhagwan PW-19, for registration of an FIR. Const. Hari

Bhagwan took Ex.PW-10/A to the police station and handed

over the same to ASI Daya Kishan PW-9, who recorded the FIR

No.624/2003 Ex.PW-9/A at 2.20 A.M. on 14.08.03.

4. In the meanwhile at the hospital, Dhanpal had to be

given the requisite medical treatment keeping in view he had

suffered two stab wounds which were noted by Dr.Renu Nagar

PW-3 who had prepared the MLC Ex.PW-3/A. The two injuries

are as under:-

"1. Clean incised wound approximately 3 x 1.5 cm on the left side of the chest medial to the nipple. The depth of the wound could not be assessed.

2. The clean incised wound approximately 3 x 1.5 cm in the epigastric region. The depth of the wound could not be assessed."

5. On the MLC Ex.PW-3/A Dr.Renu Nagar made an

endorsement referring Dhanpal to the Radiologist. Dr.Deepak

Kumar, Senior Radiologist, recommended PA view of the chest

X-ray of Dhanpal. But, the X-ray technician could not take the

X-ray of the PA view of the chest because Dhanpal did not

cooperate and as recorded at the place encircled XA in Ex.PW-

3/DA i.e. the referral form filled up by the senior radiologist,

after recording that the patient was not cooperating, took the

X-ray pertaining to the PA view of the chest. Before the

doctors could decide on the course of action to be followed

and medical treatment given to Dhanpal he absconded from

the hospital at around 1.15 AM on 14.8.2003 i.e. in the middle

of the night. Thus, on the MLC Ex.PW-3/A the doctor on duty

recorded that no opinion pertaining to the injuries could be

recorded because the patient has absconded.

6. In his statement Ex.PW-6/A, Neeraj Chandela stated that

he resides with his father and is a student of class XII. That

today he was present in his house when at around 10.45 P.M.

one Lala Khabri who is the tenant of his neighbour Praveen

and was in a perplexed condition came to his house and told

him that some persons have murdered Lala. That on hearing

this he rushed to the office A-one properties of his uncle

Randhir Chandela @ Lala which was situated at N-231, Main

Khayala Road where he found that the door of the office was

open and that T.V. was running. That he saw that the

deceased who was in an injured condition was lying in an

unconscious condition and that Dhanpal, the maternal uncle

of the deceased, whose body was soaked in blood was lying on

a setti in the room. That both deceased and Dhanpal were

having wounds on their bodies. That in the meantime Praveen

Chandela also came there and brought his Maruti car at his

asking. That he, Praveen Chandela and Dharmpal who is the

brother of Dhanpal removed the deceased and Dhanpal to

DDU hospital where doctor declared the deceased as brought

dead and admitted Dhanpal in the hospital. That some persons

had entered the office of the deceased and had launched a

dangerous attack on the deceased and Dhanpal.

7. At the site of the offence, PW-23 prepared the site plan

Ex.PW-23/B recording therein the place at points 'A' and 'B'

where the deceased and Dhanpal respectively were found

lying. The portion of the carpet at the spot which was stained

with blood, sample carpet control, the mattress of the setti at

the spot which was stained with blood and part of the wall of

the room at the spot which was stained with blood were seized

vide memo Ex.PW-10/B. HC Vijay (Photographer) PW-17 and SI

Devender Singh (Finger Print Expert) PW-24, from the crime

team were summoned. 22 photographs (out of which only 21

could be developed) i.e. Ex.PW-17/B1 to Ex.PW-17/B20 and

Ex.PW-10/DA; negatives whereof are Ex.PW-17/A1 to Ex.PW-

17/A22 were taken. Chance finger-prints were attempted to be

lifted. (Vide report Ex.PW-24/A, PW-24 opined that no chance

prints could be lifted.)

8. Randhir Chandela was declared brought dead, his body

was sent to the mortuary where Dr.L.K. Barua PW-2, conducted

the post-mortem at 11.40 A.M. on 14.08.03 and gave his

report Ex.PW-2/A which records that following 4 external ante-

mortem injuries on the deceased:-

"1. One incised wound on the right side of epigastrium size 2.5 cms X 1 cm. Both the angles of the wound were acutely cut. The margins were also cleanly cut.

2. Two beveling cut injuries on the left forearm on its middle part of size 1 inch and 1.2 inches. Both the injuries were communicating with each other and was caused by a single blow.

3. Incised wound on the left forearm size 1.8 cms X 1 cm muscle deep.

4. Incised wound on the left hand on its dorsal aspect size 1 cm."

9. The post-mortem report Ex.PW-2/A further records that

the cause of death was excessive bleeding and shock. It was

opined that injury no.1 noted above was sufficient to cause

death in the ordinary course of nature.

10. Dhanpal surfaced at 5.30 AM on 14.8.2003 at Khetrapal

Nursing Home. That was the time recorded by the said Nursing

Home as the time of his admission. On 15.08.2003 the

statement of Dhanpal was recorded by Inspector R.K.Ojha PW-

23, wherein he named that Amandeep Singh @Saibi

(hereinafter referred to as the "Accused No.1"), Sanjay @

Sanju (hereinafter referred to as the "Accused No.2"), Arvinder

Singh (hereinafter referred to as the "Accused No.3") and

Ankur Singh (hereinafter referred to as the "Accused No.4")

are the assailants of the deceased. The medical record Ex.PW-

5/A of Dhanpal was collected from the nursing home after

Dhanpal was discharged from the nursing home.

11. Since Dhanpal had implicated the afore-noted accused,

the police set out to apprehend them. The accused were

apprehended at 6.30 P.M. on 18.08.03 as evidenced from the

arrest memos Ex.PW-10/J to Ex.PW-10/M. They were

interrogated by Inspector R.K.Ojha PW-23, in the presence of

SI Kashmiri Lal PW-10 and SI Balihar Singh PW-20. Accused

No.1 made a disclosure statement Ex.PW-10/Q confessing to

his guilt and stated that he can get recovered the T-shirt

which he was wearing at the time of the incident and a mobile

phone which he was using at that time. Pursuant to his

disclosure statement, accused No.1 got recovered a mobile

phone and a T-shirt which were seized vide memos Ex.PW-

20/A and Ex.PW-10/R respectively. Accused No.3 also made a

disclosure statement Ex.PW-10/N confessing to his guilt and

stated that he can get recovered a mobile phone which he was

using at the time of the incident. Pursuant to his disclosure

statement, accused No.3 got recovered a mobile phone which

was seized vide memo Ex.PW-20/B. (It be noted here that the

other two accused persons also purportedly made a disclosure

statements but nothing could be recovered pursuant to their

disclosure statements). It may be noted here that no recovery

of an object linking the maker of the statement to the crime

was recovered pursuant to the disclosure statements and

thus, the disclosure statements are nothing but confessional

statements made to the police and hence are inadmissible in

evidence.

12. The investigation was conducted. Statements of Vijay

Singh PW-7 and Atul PW-8 as also the statement of Lal Babu

PW-11 were recorded. We may note that Vijay Singh and Atul

informed the police of an incident which had taken place on

11.8.2003 i.e. 3 days prior to the date of offence and if true,

establishes past enmity of the appellants with the deceased

and hence the motive for the crime. Lal Babu informed the

police that in the night of 13.8.2003 he had heard noise from

the office of the deceased and when he went there he saw

four persons running away and the deceased and Dharampal

lying inside in an injured condition.

13. The four accused persons were sent to trial with the

charge of having entered into a criminal conspiracy to murder

Randhir Chandela as also Dhanpal and in furtherance thereof

having murdered Randhir Chandela, but having failed in the

endeavour to kill Dhanpal, having committed the offence of

attempt to murder. 25 witnesses have been examined by the

prosecution. The deposition of Dhanpal PW-1, Vijay Singh PW-

7, Atul PW-8 and Lal Babu PW-11 needs to be noted because,

as conceded by learned counsel for the appellants and the

State, only their testimony is relevant. The various police

officers who deposed only proved that an offence had been

committed and their deposition is not relevant to determine as

to who the offender was. The deposition of the doctors need

not be considered because they spoke nothing more than

what was recorded in the MLCs of the deceased and Dhanpal

as also the medical record Ex.DW-5/A of Dhanpal pertaining to

the treatment given to him at Khetrapal Nursing Home. Since

the injuries for which treatment was given to Dhanpal by

Dr.Anil Khetrapal PW-5 at Khetrapal Nursing Home have been

spoken of by PW-5 and something turns on the said treatment

we shall be noting the testimony of Dr.Anil Khetrapal.

14. The deposition of Dhanpal PW-1 can be broken into two

components. Part-I pertaining to a fight which he claims took

place on 11.8.2003 and the second part relating to who

inflicted the knife injuries on the deceased and on himself i.e.

Dhanpal.

15. Pertaining to the incident of 11.8.2003 he deposed that

he was present in his office with his nephew Randhir @Lala at

about 8.30 PM. Vijay Singh (PW-7) a partner of Randhir was

present in the office. The time was 8.30 PM. All were taking

liquor. At 9.00 PM Atul (PW-8) a friend of Randhir came and

said that he owed some money to Mandeep @Raju @Pista. He

informed that Mandeep was threatening him that either his

money should be returned or else he would tell sons of

Gurnam Singh (A-2 and A-3 are the sons of Gurnam Singh).

That Atul told that Mandeep had threatened that if his money

was not paid he would have him beaten up. That on hearing

Atul, Randhir, Vijay, Atul and himself i.e. Dhanpal went to N-38

and reached there at around 9.00 PM. A-1, A-2 and A-3 were

present at N-38. Randhir said to A-1, A-2 and A-3 as to why

they were acting as gangsters. An altercation ensued and A-1

started hurling abuses at Randhir and gave him fist blows. He

i.e. Dhanpal intervened and separated them.

16. Pertaining to the events which transpired on 13.8.2003,

we propose to note the deposition in its entirety, but by giving

serial number to each statement because of facility of

reference to the different parts of his deposition while

discussing the same when we reach the stage of discussing

the evidence. He deposed:-

"(I) On 13-8-03 at about 10.45 p.m. I and my nephew Randhir @ Lala were present in the office of at N-38, A One Properties and were taking liquor. (II) At that time accused Saibi and Sanju, both present in court, came and accused Saibi gave blow on the table lying in front of us and then accused Saibi hurling abuses retorted 'Saale aaj bata deta huin badmashi kya hoti hai'. (III) Then accused Saibi pulled out a knife from dub of his pant and started giving blows to Randhir @ Lala with that knife. (IV) I am not sure if accused Saibi had

taken out the knife from right or left dub of his pant. (V) Randhir @ Lala received 2-3 blows on his arm and one knife blow on his chest. (VI) Randhir @Lala fell on the table after receiving knife blows. (VII) I tried to came forward towards accused Saibi and Sanju and then accused Sanju started giving me fists blows and kicks. (VIII) I gave a forcible push to Sanju and then managed to catch hold of accused Saibi from behind. (IX) Accused Saibi then gave two knife blows in my chest but I hugged him and caught him. (X) In the meantime accused Ravinder and Onkar (Arvinder and Ankur) came inside the office and both gave me fist blows and kicks and got freed of Saibi. (XI) I raised an alarm and on hearing my noises one person Lal Babu Kabadi came inside the office. (XII) I saw Lal Babu coming in the office and then I became unconscious and fell on the setty in the office. (XIII) I regained consciousness at about 11 p.m. on 14-08-03 and I was present in Khetrapal Nursing Home, Bali Nagar at that time. (XIV) On 15.08.03 police met me at the Nursing Home at 12.00 noon but I am not sure about the time."

17. We may note that Saibi is Amandeep Singh and Sanju is

Sanjay i.e. A-1 and A-4.

18. In cross-examination Dhanpal admitted that the

deceased was an accused in a murder case and that even he

was an accused in a murder case. We eschew reference to the

various improvements made by Dhanpal Singh while deposing

in Court vis-à-vis his statement recorded by the police under

Section 161 Cr.P.C. But, we note that when questioned as to

for how long he continued to hug accused Saibi, he replied

that he hugged him for 1-1½ minutes.

19. Vijay Singh PW-7 and Atul PW-8 deposed to a quarrel

which had taken place on 11.8.2003 i.e. the quarrel about

which Dhanpal had deposed, but each gave a materially

different description thereof.

20. Lal Babu PW-11 deposed that on 13.8.2003 he heard

noises from the office of the deceased and went there. He saw

four persons coming out of the office and running away, but

could not identify them as he had not seen their faces. That

he saw the deceased and Dhanpal lying injured.

21. Neeraj Chandela PW-6 deposed the facts which were told

to the police and form part of his statement Ex.PW-6/A.

22. Dr.Anil Khetrapal PW-5 proved the medical records

Ex.PW-5/A of Dhanpal and deposed that three injuries were

noted on the person of Dhanpal namely (1) a small lacerated

wound in the midline about 3/4 inches x 1 inch, depth of which

could not be ascertained; (2) a wound at the level of fourth IC

transversely placed at about 1 x 1/3 inch; (3) a wound at the

vental aspect of the left arm subcutaneous deep about 1 x ¾

inches x 1 inch. He deposed that the injuries sustained by

Dhanpal were dangerous in nature as they involved the liver,

pancreatic and peri-spleenic region.

23. It is apparent that the case of the prosecution hinged

upon the testimony of PW-7 and PW-8 as also part testimony

of Dhanpal PW-1 to prove the motive for the crime in relation

to the incident which took place on 11.8.2003. To prove that

the appellant Amandeep had inflicted the knife injuries on the

deceased as also Dhanpal and that appellant Sanjay and the

two other co-accused Arvinder and Ankur had facilitated the

attack, the testimony of Dhanpal became relevant; limited to

some extent for corroboration to the testimony of Lal Babu

PW-11 who had seen four persons leaving the site of the

crime, but failed to recognize them.

24. It is relevant to note that the alleged weapon of offence

was never recovered and no clothes stained with blood of

either of the accused persons were recovered. No finger print

of either accused was lifted from the site where the crime took

place.

25. Pertaining to the incident of 11.8.2001, noting serious

discrepancies in the deposition of Dhanpal PW-1 as also Vijay

Singh PW-7 and Atul PW-8, the learned Trial Judge has

recorded a finding as under:-

"39. I have gone through the arguments from both the parties. The main point to consider whether there was any conspiracy by all the accused to kill Randhir @ Lala. I have gone through the evidence of PW-1, 7 and 8. It is clear that there was no enmity between Ankur Singh, Arvinder Singh and the deceased. On 11.08.01 deceased with other went into the search of Amandeep @ Rajue and not for Ankur Singh and Arvinder Singh. It is also on the record that the deceased had scuffle with Amandeep Singh and not

with these two accused. There is a discrepancy regarding the glasses which were used for consuming liquor on 11.08.03. On witness says that two glasses were used and other say that three glasses were used for consuming liquor. There is discrepancy in respect of bottle of liquor as PW-1 states that he had asked for half bottle whereas in the photograph the full bottle is shown. PW-8 Atul had stated that when he reached the office on that day he had found only PW-7 Vijay and not PW-1 Dhanpal. PW-8 did not mention that Dhanpal had accompanied them to Gurnam‟s house whereas PW-7 stated that he along with deceased, Dhanpal and Atul went to Gurnam‟s house. All these above noted discrepancies point out that Dhanpal may not be present on 11.08.03 when the scuffle between Saibi and Lala took place. It is also established that on 11.08.03 accused Arvinder Singh and Ankur Singh were not involved in any kind of brawl or scuffle with the deceased or any other person as per the evidence on record."

26. Pertaining to the issue whether at all the prosecution has

proved a conspiracy amongst the accused, learned Trial Judge

has held that no evidence whatsoever has been brought on

record pertaining to the charge of conspiracy. The learned Trial

Judge has held that the charge of conspiracy was predicated on

the premise that the accused persons hatched a conspiracy

after the incident of 11.08.03 which itself was a doubtful

incident. Thus, it has been held that the charge of conspiracy

has not been established.

27. As to what happened on 13.08.03, the learned Trial Judge

has returned a finding in paras 43 to 45 as under:-

"43. The incident dated 13.08.03 when Randhir @ Lala and PW-1 were stabbed by Amandeep Singh the PW-1 is alleged to have caught him from back. It is admitted by PW-1 that after receiving injuries his

clothes were blood soaked but no blood was found the shirt (Ex.P-5) of Amandeep Singh. An inference can be drawn here that either PW-1 had not caught hold of Amandeep Singh or he is not truthful on the aspect of catching the accused from behind. He also admitted that he had seen the blood on his clothes when accused Amandeep Singh @ Saibi managed to free himself. In his statement u/s 161 Cr.P.C. he had not given the names of Arvinder Singh and Ankur Singh giving him fist cuffs and blows on 13.08.03. This fact he was confronted as had mentioned this fact in the Court for the first time.

44. The statement of PW-1 was recorded on 15.08.03 as he had gained consciousness of Khetarpal Nursing home on 14.08.03 at 11.00 pm. This gave him sufficient time to thin over the entire episode and names the accused persons to the police. Accused PW-1 is stated to be 57 years old as stated before the court and 70 years in the MLC. This becomes clear that he is an aged persons and cannot match a young man of 25 years approx. It also seems improbable that after receiving two stab wound in the chest area he was able to caught hold the accused Amandeep Singh for one and half minute from behind in such a manner that it required Ankut Singh and Arvinder Singh to beat him in order get Amandeep Singh freed. In that case, the blood of PW-1 should also be present on the back side of shirt of Amandeep Singh which is not the case. The shirt of Saibi is clean and without blood spots.

45. In my consider opinion there is some doubt on the statement of PW-1 as far as the implication of Arvinder Singh and Ankur Singh is concerned. Even PW-11 Lal Babu Kabadi who had heard the noises in the shop of Randhir deceased found four persons running away but he failed to recognize them."

28. In a nut shell the learned Trial Judge has held that it

would be unsafe to convict co-accused Arvinder and Ankur on

the testimony of Dhanpal, but it could safely be concluded that

appellant Amandeep inflicted the fatal knife blows on the

deceased and the stab wounds on Dhanpal and that Sanjay

acted in concert with Amandeep in the murder of the

deceased. The result is the acquittal of Arvinder and Ankur.

The appellants have been convicted for the offence of murder

of Randhir Chandela. Appellant Amandeep has been convicted

for the offence punishable under Section 324 IPC for the

injuries caused to Dhanpal. Both have also been convicted for

the offence punishable under Section 452 IPC. For the offence

of murder sentenced imposed upon the appellants is to

undergo imprisonment for life and pay a fine of Rs.5,000/-

each; in default of payment of fine to further undergo simple

imprisonment for 6 months. Appellant Amandeep has been

sentenced to undergo a sentence for 2 years and pay a fine of

Rs.1,000/-; in default of payment of fine to undergo simple

imprisonment for a period of 1 month for the offence

punishable under Section 324 IPC. For the offence punishable

under Section 452 IPC both have been sentenced to undergo

imprisonment for 2 years and pay a fine of Rs.1,000/-; in

default of payment of fine to undergo simple imprisonment for

1 month. Needless to state, the sentences have been directed

to run concurrently.

29. A perusal of the decision of the learned Trial Judge and

the discussion of the evidence in para 43 of the decision shows

that the learned Trial Judge has disbelieved the deposition of

Dhanpal pertaining to the manner in which he described

appellant Amandeep inflicting the injuries on him. The reason

is obvious. While noting the relevant testimony of Dhanpal

where he described the assault firstly on Randhir and

thereafter on him, we have, for facility of reference, given

serial number (I) to (XIV) to his deposition while reproducing

the same in para 16 above. Describing how he i.e. Dhanpal

received the injuries with a knife, Dhanpal has deposed that

when Amandeep inflicted 2-3 blows with a knife on the arm of

Randhir @ Lala and a blow on his chest, he i.e. Dhanpal came

forward towards accused Amandeep and accused Sanjay

started giving fist blows and kicks to him. He gave a forcible

push to Sanjay and managed to catch hold of Amandeep from

behind. He went on to state that thereafter Saibi i.e.

Amandeep gave two knife blows on his chest, but he hugged

him and caught him and in the meanwhile accused Arvinder

and Ankur came inside and gave him fist blows and kicks and

got freed Saibi i.e. Amandeep. For facility of reference, we

once again note his testimony on said aspect. It reads:-

Randhir @ Lala received 2-3 blows on his arm and one knife

blow on his chest. Randhir @Lala fell on the table after

receiving knife blows. I tried to came forward towards accused

Saibi and Sanju and then accused Sanju started giving me fists

blows and kicks. I gave a forcible push to Sanju and then

managed to catch hold of accused Saibi from behind. Accused

Saibi then gave two knife blows in my chest but I hugged him

and caught him. In the meantime accused Ravinder and

Onkar (Arvinder and Ankur) came inside the office and both

gave me fist blows and kicks and got freed of Saibi.

30. With reference to the two injuries suffered by

Dhanpal and as recorded in his MLC Ex.PW-3/A it is apparent

that one injury is on the left side of the chest, medial to nipple.

The other injury is in the epigastric region. It is just not

possible that Amandeep who was being hugged by Dhanpal

from the back could have inflicted the two injuries in the

manner as described by Dhanpal. We fail to understand as to

how a man who is caught from behind can assault the person

who is holding him from the behind on the chest of the said

person. At best the person holding the knife can give jab

thrusts by holding the knife inwards and in said eventuality

can at best cause injuries on the extremities of the chest on

the side portion of the torso. Faced with this dilemma, in para

43 to 45 of the decision, the learned Trial Judge has rightly

opined that PW-1 could not be believed regarding the manner

in which he received the injury.

31. But, after holding so, we fail to understand as to how

could the learned Trial Judge return a finding that Amandeep

has caused the injuries. In our opinion if an injured eye

witness cannot explain how he received the injuries or his

explanation is found to be untrustworthy, a serious doubt

arises on the credibility of his testimony pertaining to the

nature and manner of the assault.

32. In our opinion, once the learned Trial Judge, in para 43 of

the decision opined: „an inference can be drawn here that

either PW-1 had not caught hold of Amandeep Singh or he is

not truthful on the aspect of catching the accused from

behind', it became imperative for the learned Trial Judge to

further consider the conduct of Dhanpal on the night of the

fateful day i.e. the intervening night of 13 th and 14th October,

2003 and with reference thereto answer the question whether

Dhanpal was avoiding the police? If yes, why?

33. In his deposition (refer statement XII extracted in para 16

above) Dhanpal stated that when he saw Lal Babu coming in

the office he became unconscious and regained consciousness

at about 11:00 PM on 14.8.2003 in Khetrapal Nursing Home. It

has to be noted that Dhanpal‟s statement was recorded by the

police at about 12:00 noon on 15.8.2003. Dhanpal is obviously

lying when he stated that he regained consciousness at 11:00

PM on 18.8.2003. Firstly, for the reason, the X-ray requisition

form prepared by the radiologist at DDU Hospital shows that

the radiologist recommended PA view of the chest X-ray.

There are two types of chest X-ray examination i.e. PA view or

Posteroanterior view and AP View or Anteroposterior view. In a

PA view, a patient stand in front of the X-ray unit with his

hands on hips, shoulders sallowed and chin lifted. The X-ray

machine operator makes the patient stand still with breath

held while taking the X-ray. AP view is taken when a patient is

unable to sit up or who cannot go to the radiology section. It is

apparent that for a PA view of the chest the patient has to co-

operate. The fact that the radiologist recommended the PA

view of the chest to be X-rayed evidences that the radiologist

found Dhanpal responsive and in a condition that a PA view of

the chest X-ray could be carried out. It is apparent that in the

night of 13.8.2003, Dhanpal was not unconscious. It is also

important to note that the X-ray technician could not take the

PA view of the chest because Dhanpal did not co-operate, a

fact noted by the technician in Ex.PW-3/DA. This corroborates

the consciousness of Dhanpal. It may be argued that non-

cooperation by Dhanpal for the PA view of the chest to be X-

rayed could well be the result of his being semi-conscious.

But, this is not so for the reason as recorded in MLC of Dhanpal

i.e. Ex.PW-3/A he absconded from the hospital at around 1:15

AM on 14.8.2003 i.e. the intervening night of 13 th and 14th

August, 2003. The evidence on record conclusively

establishes that Dhanpal was fully conscious in DDU Hospital

and was somehow or the other attempting that the police

should not record his statement.

34. The answer to the question, why Dhanpal did so is

obvious. Dhanpal was admittedly an accused in an offence

relating to murder. Knowledge can be imputed to him of how

the police investigates a crime and in particular a serious

crime like murder. Knowledge can be imputed to him of being

aware that the police would ask him questions as to how

Randhir @ Lala was killed and how did he i.e. Dhanpal sustain

the injuries. That Dhanpal had no ready statement to make is

an inference possible from his conduct of not cooperating with

the doctors at DDU Hospital and in absconding from the

hospital. An inference can be drawn that Dhanpal was buying

time to cook up a story.

35. If Dhanpal is to be disbelieved, God alone knows as to

what happened in the room in which Randhir @ Lala was killed

and Dhanpal was injured.

36. What is relevant is the fact that Dhanpal‟s conduct

evidences his disinclination to make a statement to the police

and his desire to buy time and then make a thought over

statement. Thus, whatever was told by Dhanpal to the police

on 15.8.2003 has to be taken with a pinch of salt.

37. The fact that the manner in which Dhanpal has explained

the injuries suffered by him, which is just not possible, coupled

with his conduct discussed hereinabove is sufficient to totally

discard the version of Dhanpal more so for the reason a

tainted evidence requires corroboration for such part of the

evidence which appears to be truthful.

38. Not only that. It is apparent that at Khetrapal Nursing

Home, Dhanpal has managed to fake a surgery. As noted in

para 4 above, at DDU Hospital, Dr. Renu Nagar PW-3 recorded

two injuries on Dhanpal being:-

"1. Clean incised wound approximately 3 x 1.5 cm on the left side of the chest medial to the nipple. The depth of the wound could not be assessed.

2. The clean incised wound approximately 3 x 1.5 cm in the epigastric region. The depth of the wound could not be assessed."

39. At Khetrapal Nursing Home, as deposed to by Dr. Anil

Khetrapal PW-5, three injuries were noted on Dhanpal being:

(1) a small lacerated wound in the midline about 3/4 inches x 1

inch, depth of which could not be ascertained; (2) a wound at

the level of fourth IC transversely placed at about 1 x 1/3 inch;

(3) a wound at the vental aspect of the left arm subcutaneous

deep about 1 x 3/4 inches x 1 inch.

40. Wherefrom injury No.3 has emerged, is a mystery. If he

compare the description of injury No.1 and 2 as recorded in the

MLC Ex.PW-3/A and injury No.1 and 2 as deposed to by Dr. Anil

Khetrapal, it becomes evident that the injury No.1 recorded in

the MLC Ex.PW-3/A is noted as injury No.2 by Dr. Anil Khetrapal

and injury No.2 recorded in the MLC Ex.PW-3/A is injury noted

as No.1 by Dr. Anil Khetrapal.

41. Dr. Renu Nagar could not record the depth of the injury in

the MLC Ex.PW-3/A because Dhanpal absconded from the

hospital. But, from the deposition of Dr. Anil Khetrapal it is

apparent that the depth of the injury referred to him as injury

No.1 could not be ascertained by him. Thus, the other injury

i.e. injury No.2 deposed to by Dr. Anil Khetrapal could be the

only injury which could have damaged the liver, pancreatic and

peri-spleenic region for the reason the third wound deposed to

by Dr. Anil Khetrapal was at the vental aspect of the left arm

and was subcutaneous deep about 1 x 3/4 inches x 1 inch.

42. The entry wound No.2 deposed to by Dr. Anil Khetrapal

was at the level of fourth IC. It has been described in the MLC

as on the left side of the chest, medial to the nipple. The knife

which had entered the chest cavity at the fourth IC i.e. between

the fourth and fifth rib had to cut through the lung before

piercing the liver, the pancreas and the peri-spleenic region. A

book on human anatomy guides us that the knife had to

traverse not only downward but towards the back because the

pancreatic and peri-spleenic region is towards the back. It is

just not possible that the knife which has entered the chest at

the fourth IC could have damaged the liver and the pancreatic

and peri-spleenic region for the reason admittedly, the left lung

of Dhanpal was not damaged.

43. The totality of the circumstances noted hereinabove

render it most unsafe to believe Dhanpal who appears to have

lied on virtually every material aspect.

44. Even the injuries on the deceased as recorded in his MLC

appear not to be possible in the manner Dhanpal has deposed

about the manner in which they were caused. The site plan

Ex.PW-16/A shows that the room in which the fight took place

ad measures 12 feet x 10 feet. The setty on which Dhanpal

claims having fallen after receiving the injuries is about 6 feet

long and 4 feet wide. It is placed just next to the door adjoining

the northern wall of the room. Just adjacent to the setty is a

table ad-measuring 2 feet 6 inches x 6 feet. On the other side

of the table just next to the Eastern wall of the room are three

chairs. As per the site plan Randhir was sitting on the chair in

the center. A fourth chair is shown on the side of the table

towards the Southern wall. Referring back to the deposition of

Dhanpal, as noted in para 16 above, when Saibi and Sanju i.e.

the appellants came inside the room, Saibi gave a blow on the

table and hurled abuses and pulled out a knife from the dub of

his pant and started giving blows to Randhir with a knife. It is

apparent that Saibi i.e. Amandeep was on one side of the table

and deceased Randhir was sitting on a chair which was on the

other side of the table. The width of the table is 2 feet 6

inches. The person standing on one side of the table, to injure

a person sitting on the chair on the other side of the table,

width of which is 2 feet 6 inches would swipe i.e. hit or try to hit

with a swinging blow. The likely injury to be caused would be a

cut wound and not an incised penetrating wound cutting into

the liver by about 5 cms. We note that in his testimony Dr.

L.K.Barua PW-2, the doctor who conducted the post-mortem

has deposed that injury No.1 on the epigastrium region, on

internal examination revealed having cut through into the liver

by about 5 cms. Assuming that Amandeep lunged forward to

thrust the knife into the chest or the abdomen of Randhir, the

natural and instinctive reaction of Randhir would be to take

evasive action by leaning backward on the chair and recreating

the said offensive act of Amandeep and the defensive reaction

of Randhir it becomes most unlikely that such a deep injury

could be caused in the manner as deposed by Dhanpal.

45. To sum up, the testimony of Dhanpal has been

disbelieved by the learned Trial Judge pertaining to the incident

of 11.8.2003. His testimony pertaining to how he was attacked

by Amandeep and how Amandeep inflicted two stab injuries on

his chest, with reference to the place where the injuries were

found on the chest, has been disbelieved. The learned Trial

Judge has not discussed the conduct of Dhanpal, which, as

discussed hereinabove is not only suspicious but evidences a

conscious mind telling the body to avoid contact with the

police. The past record of Dhanpal shows his criminal

background. Dhanpal has managed to obtain papers pertaining

to a fake surgery is also another circumstance to be kept in

mind and lastly his deposition pertaining to how Randhir @ Lala

was attacked appears to be untrue. The totality of the above

renders it most unsafe to believe Dhanpal.

46. It is not out of place to incidentally mention that even the

learned Trial Judge was in a quandary evidenced by the fact

that pertaining to the injuries caused on Dhanpal, the learned

Trial Judge has convicted Amandeep for the offence of causing

hurt by a dangerous weapon and not for the offence punishable

under Section 325 IPC or Section 307 IPC. If the testimony of

Dr. Anil Khetrapal has to be believed, indeed, the injury noted

by him is grievous and life threatening.

47. The appeals are allowed.

48. Impugned judgment and order dated 4.5.2007 convicting

the appellants is set aside. The appellants are acquitted of all

the charges. The appellants are directed to set free if not

required to be kept in custody in some other case.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

March 23, 2009 mm