Dharam Singh vs State
2009 Latest Caselaw 942 Del

*                     IN THE HIGH COURT OF DELHI

                         Judgment reserved on : March 12, 2009
%                        Judgment delivered on : March 23, 2009


                           CRL.A. 403/2004

DHARAM SINGH                                          ..... Appellant
                      Through:   Mr.Aman Lekhi, Sr.Advocate with
                                 Mr.Shishir Singh, Advocate,
                                 Mr.Jaspreet Singh, Advocate and
                                 Mr.Vaibhav Vats, Advocate.

                      versus

STATE                                          ..... Respondent
                      Through:   Mr. Pawan Sharma, APP for
                                 the State.

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. On 16.6.2003 at 8:25 AM vide DD No.3A, Ex.PW-1/B,

the duty officer PS Sriniwaspuri recorded information about a

stabbing incident that had taken place at R-4, Private Colony,

Banghal Mandir, Sriniwaspuri. SI Mukesh Kumar PW-10

accompanied by Const. Madan Pal and Const. Hodal Singh

reached the spot.

2. At the spot, SI Mukesh Kumar met Sher Singh PW-5,

a neighbour of the injured named Jaggu. SI Mukesh Kumar

recorded the statement, Ex.PW-5/A, of Sher Singh and made

an endorsement, Ex.PW-10/A, thereon. He forwarded the same

through Const. Madan Pal to the police station where ASI Kiran

Sood PW-1, the duty officer, recorded the FIR, Ex.PW-1/A,

under Section 302 & 34 IPC at 9:55 AM.

3. The statement Ex.PW-5/A, made by Sher Singh to SI

Mukesh Kumar reads as under:-

"Statement of Shri Sher Singh S/o Shri Amar Chand R/o Q-26 Pvt. Colony, Sri Niwaspuri, New Delhi, Age 50 years. I reside at the abovementioned address with family and work at Delhi Jal Board G.K I as an assistant meter reader. Today i.e 16.6.2003 at about 8-8:15 am Dharam Singh s/o Bhupan came to house no. R-4 and a quarrel took place between accused Dharam Singh and Jaggu over the digging of a drain. The people of the area had to intervene to get the matter settled. Thereafter, Dharam Singh left the spot. Immediately after that Bhupan, the father of Dharam Singh, came to the spot along with his wife Devki. Bhupan was armed with a danda, both Bhupan and Devki caught hold of Jaggu, Devki was hitting Jaggu with her slipper while Bhupan hit him with the danda on his head. In the meanwhile Dharam Singh came back to the spot armed with a churri (knife) and stabbed Jaggu on his chest straight away without saying a word, blood started oozing out from Jaggu‟s chest as well as his mouth. That I tried to stop the loss of blood with a cloth. That the three assailants immediately ran away from the spot after causing the injuries. That someone called the police in the meanwhile and a PCR Van arrived at the spot. Dharam Singh, Bhupan and Devki who reside at T-71, Pvt. Colony Sri Niwaspuri killed [email protected] Jagdev Singh in front of my eyes. There was a litigation pending between Jaggu and Bhupan for the past 15-20 years. My statement has been read over to me and is correct"

4. From the spot, SI Mukesh Kumar seized a churi

(knife), vide seizure memo, Ex.PW-5/E. A pair of hawai

chappals were seized vide seizure memo Ex.PW-5/D. Another

pair of chappals were seized vide seizure memo Ex.PW-5/J. SI

Mukesh Kumar sent the dead body to the mortuary of AIIMS.

5. Since Sher Singh had named, apart from the

appellant, Devki and Bhupan as the accused, the police started

searching the three. Devki and Bhupan were arrested by SI

Mukesh Kumar the same day in the evening from their house

at T-71, Private Colony Sriniwaspuri, New Delhi. Accused

Bhupan made a disclosure statement Ex.PW-10/D, in which he

told the police of having hit the deceased with a danda and

said that he can get the same recovered. Thereafter, from

within his house he got recovered a danda which was seized

vide seizure memo Ex.PW-10/D.

6. Appellant Dharam Singh was arrested the next day

i.e on 17.6.2003 and he made a disclosure statement, Ex.PW-

10/F, the same day. In his disclosure statement, Dharam Singh

said that when he inflicted the stab wound on the deceased,

his i.e. Dharam Singh‟s clothes got stained with blood and that

he can get the same recovered. Thereafter, from his house,

Dharam Singh got recovered a pant stained with blood as also

a shirt stained with blood which were seized vide seizure

memo Ex.PW-10/G.

7. At the mortuary Dr.Jayan PW-4 conducted the post-

mortem of the deceased Jaggu on 17.6.2003 and noted his

observations on the post-mortem report Ex.PW-4/A. He

handed over the same along with a blood sample of the

deceased, taken on a piece of gauze, to the police officer who

had submitted the inquest papers. On the post-mortem report

the following injuries on the person of the deceased have been

recorded:-

1. A stab wound, slightly and obliquely placed on the right side of the chest. In the third inter coastal space of size 3x1.5cm with slightly contused upper margins contused, 1.5cm from the midline, 7cm from sterna notch, 9 cm from the right nipple and 31cm from the umbilicus. On exploration of the wound third rib was found to be transected along with right main bronchus, left atrium was punctured on the posterior wall. Pulmonary veins were cut in the immediate proximity of the atrium.

2. Abrasion reddish brown colour 3x2cm size on the right shoulder posteriorly.

8. He noted that the internal examination revealed

that the right lung had collapsed as the knife had pierced

through the right lobe of the lung. The pericardial cavity was

found filled with 220 ml of blood. He opined that the cause of

death was haemorrhagic shock due to injury No.1 which was

caused by a sharp edged weapon. The injury was stated to be

sufficient to cause death in the ordinary course of nature.

9. The blood stained knife recovered at the instance of

the appellant, the clothes recovered at the instance of the

appellant, the chappals recovered at the site, and the blood

sample of the deceased were sent to a serologist and as per

FSL report Ex.P-Y, it was opined that the blood group of the

deceased was A and that human blood of group A was found

present on the knife. Human blood was found on the pair of

chappals but group thereof could not be detected. Human

blood was detected on the pant and the shirt recovered at the

instance of the appellant but group thereof could not be

detected.

10. Apart from Sher Singh, at whose instance the FIR

was registered, one Chet Ram also claimed to be an eye

witness to the incident. Even his statement under Section 161

Cr.P.C. was recorded by the Investigating Officer.

11. Needless to state, Sher Singh and Chet Ram told

the Investigating Officer that the appellant, Devki and Bhupan

were responsible for the death of Jaggu. Thus, the appellant,

Devki and Jaggu were sent to trial; charged with the offence of

acting in concert and murdering Jaggu.

12. Needless to state, the case of the prosecution

hinged upon the eye witness account; namely on the

deposition of Sher Singh and Chet Ram.

13. Sher Singh PW-5 deposed that he knew the accused

who are his neighbours and that the deceased Jaggu was their

tenant. That on 16.6.2003, at about 8/8:15 AM, he was about

to go to his office when he heard a commotion and came out.

All the accused and the deceased were exchanging hot words

due to a nalli. Appellant Dharam Singh inflicted a blow with a

churi on the chest of Jaggu. That Bhupan and Devki were

present. Thereafter all the accused ran away. A call was

made to the police who arrived after about 15 minutes. That

the statement Ex.PW-5/A was signed by him. Since qua

Bhupan and Devki, the role which he had prescribed to them in

his statement Ex.PW-5/A was not attributed to Devki and

Bhupan, the learned Additional Public Prosecutor got the

witness declared hostile and cross examined him. On being

cross examined by the learned APP, he said that something

might have happened before he was present and that he had

no knowledge that Bhupan was armed with a danda and

inflicted a blow on the head of Jaggu with the same. He stated

that he informed the police only about the incident of Dharam

Singh having stabbed Jaggu. He admitted that Bhupan got

recovered a danda as recorded in the memo Ex.PW-5/C. He

admitted that the articles shown seized from the spot as per

seizure memo Ex.PW-5/D and Ex.PW-5/J were recovered from

the spot in his presence. On being cross examined by the

accused, Sher Singh stated that the deceased kept lying at the

spot for about 1 hour or 1¼ hours and that during this period

nobody tried to give him medical aid. That the area being

thickly populated about 100 people assembled at the spot.

That the police stayed at the spot for about 1½ to 2 hours.

That on the day of the incident he went to duty. He deposed

that his duty hours were from 9:30 AM to 5:30 PM. The last

sentence of his cross examination is relevant. He stated: „the

police had come to the spot within 15-20 minutes after

stabbing'.

14. Chet Ram PW-9 deposed that he was a TSR driver

by profession and knew the accused who were his neighbours.

On 16.6.2003 a road was being constructed in the area due to

which the nallis got choked and water stopped flowing in the

nallis. Jaggu was trying to open a nalli and Dharam Singh

came and hot words were exchanged between the deceased

and Dharam Singh. They grappled with each other. The crowd

separated them. After hearing about the quarrel, Bhupan and

Devki arrived. Bhupan was having a danda. Dharam Singh

said that he would see to it and went inside his house and

brought out a knife and inflicted a blow on the chest of Jaggu.

That he does not know what role was played by Bhupan or

Devki because there was a big crowd. Since Chet Ram was

not supporting the case of the prosecution qua the role of

Bhupan and Devki, he was declared hostile and was cross

examined by the learned APP. On cross examination he

denied having seen Bhupan inflict a blow with a danda on the

head of Jaggu or Devki having given chappal blows to Jaggu,

but admitted that Bhupan and Devki caught hold of the

deceased when Dharam Singh inflicted the knife blow. On

being cross examined by the accused, he stated that the

quarrel took place at about 8/8:15 AM and he telephoned the

police who came to the site after 20-25 minutes. He stated

that about 50 persons were present at the spot. Confronted

with his statement under Section 161 Cr.P.C. where it was not

recorded that he had seen Bhupan and Devki having caught

the deceased when Dharam Singh stabbed the deceased, he

stated that though not recorded in his statement, but he had

disclosed said fact to the police.

15. Discussing the deposition of PW-5 and PW-9 i.e.

Sher Singh and Chet Ram, the learned Trial Judge, in para 13

of the impugned decision dated 17.4.2004 has observed: It is

thus clear that their evidence is an inchoate mix or

irreconcilable opposites.

16. Though not expressly stated in the impugned

decision, the underlining reasoning of the learned Trial Judge

appears to be that Sher Singh having not assigned any role to

Bhupan and Devki and the role assigned by Chet Ram to them

i.e. of having caught hold the deceased when appellant

attacked the deceased with a knife, a fact not told by him to

the police when his statement was recorded by the police and

hence the same being an improvement, did not establish the

participative role of Bhupan and Devki. However, qua the

appellant, noting that both the eye witnesses had corroborated

each other qua the acts of the appellant, his accomplicity in

the crime stood established. The result is the conviction of the

appellant for the offence of having murdered Jaggu, and

acquittal of the co-accused.

17. At the hearing of the appeal, Mr. Aman Lekhi,

learned senior counsel for the appellant urged that the finding

recorded by the learned Trial Judge in para 13 of the impugned

decision that it was clear that the testimony of Sher Singh and

Chet Ram was an inchoate mix of irreconcilable opposites,

logically leads to their evidence being discarded in its totality

and hence the appellant cannot be convicted for the offence of

having murdered Jaggu.

18. At the outset, we may note that on what basis has

the learned Trial Judge recorded an opinion in para 13 that the

evidence of Sher Singh and Chet Ram is an inchoate mix of

irreconcilable opposites has not been brought out with clarity

in the decision. In the preceding two paras, the learned Trial

Judge has simply noted the testimony of Sher Singh and Chet

Ram. Without juxtaposing the statements made by the two

and then analyzing them, the learned Trial Judge has recorded

his opinion.

19. A perusal of the impugned decision shows the

penchant of the learned Trial Judge to use flowery language,

without really understanding the precise meaning of the words

and phrases used by the learned Judge. „Irreconcilable

opposites‟, means two statements which are diametrically

opposite to each other and cannot be reconciled at all,

because each is destructive of the other. For example the

statement: A is my wife, is destructive of the statement that: A

is my daughter. The reason is obvious. Evidence of A being

the wife of the maker of the statement, would itself destroy

that A is the daughter of the maker of the statement, and vice

versa. But, the statement: A is my wife would not be

diametrically opposite to the statement: Myself and A have a

live in relationship; for the reason, proof of the first would not

itself destroy the basis for the second.

20. A variation in the narrative of an incident by two

eye witnesses cannot be ever a case of irreconcilable

opposites for the reason both disclose the same facts in issue

but differ on other facts which encompass the facts in issue. A

series of acts spread over a duration of time but

interconnected with each other are relevant facts because

they form a complete chain enwombing the fact in issue.

Thus, merely because there is some discrepancy which

narrating the facts which encompass the fact in the issue,

would not mean that irreconcilably opposite views are

emerging. In such a situation, care has to be taken to find out

whether the difference in the narrations relate to the facts in

issue or the attendant facts. Similarly, it has to be kept in

mind that human beings seldom have photogenic memory and

while deposing to events seen by them in the past, do tend to

blur the facts, but merely on said account, it cannot be said

that the witnesses are deposing falsely. Similarly,

improvements and variations vis-à-vis the previous statements

of the witnesses, unless they are on material points, have to

be ignored.

21. Sher Singh has deposed that he heard a commotion

and came out and saw that the accused and the deceased

were exchanging hot words and Dharam Singh inflicted a blow

on the chest of Jaggu. In other words, Sher Singh categorically

deposed that all the accused i.e. Devki, Bhupan and Dharam

Singh were present, but only Dharam Singh inflicted the blow.

He deposed that thereafter all the accused ran away. Chet

Ram deposed that Jaggu and Dharam Singh exchanged hot

words and grappled with each other. The crowd separated

them. On hearing the quarrel Bhupan and Devki arrived.

Dharam went inside and brought out a knife and inflicted a

blow on the chest of Jaggu.

22. It is quite possible that Sher Singh came out a little

later than Chet Ram and did not see the first part of the

quarrel seen by Chet Ram i.e. when Jaggu and Dharam

exchanged hot words and grappled and were separated by the

crowd and on upon hearing the quarrel Bhupan and Devki

arrived. It is possible that Sher Singh came out at that stage

and saw the appellant inflict the stab wound on the chest of

the deceased.

23. The deposition of Sher Singh evidences that he saw

only the later part of what actually happened and not the first

part thereof, as deposed to by Chet Ram.

24. Far from there being any irreconcilable opposites

emerging from the testimony of Sher Singh and Chet Ram, we

find substantial corroboration in the testimony of each.

25. Now, dealing with the submissions urged in the

appeal, Mr.Aman Lekhi, learned senior counsel for the

appellant urged that on being cross examined Sher Singh

deposed that the body kept lying at the spot for 1 hour to 1¼

hours and nobody gave medical aid, meaning thereby, as

urged by learned counsel for the appellant, that as per the

witness, the police came to the spot after 1 hour or 1¼ hours.

Thus, learned counsel urged that it becomes doubtful whether

Sher Singh was at all present because he admitted during

cross examination that on the day of the incident he went to

duty and that his duty hours were from 9:30 AM to 5:30 PM.

26. The argument is a roller coaster argument and is

founded by picking up statements here and there, and drawing

inferences. Now, Sher Singh has clearly deposed that at about

8-8:15 AM, when he was about to go to his office, he heard a

commotion which propelled him to go out and that on going

out he saw Dharam Singh stab the deceased. As noted

hereinabove, in cross examination, he deposed that the police

came to the spot within 15-20 minutes of the stabbing

incident. To a question as to what were his duty hours, he

replied that they were from 9:30 AM to 5:30 PM. To the

question whether on the day of the incident he went to duty,

he replied in the affirmative. Where was the supplementary

question asked: On the day of the incident, when did you

report for duty? Had this question been asked, the witness

would have given some answer. If the answer was that he

reported for duty at 9:30 AM, another question would have

become relevant as to what was the distance between the

house of the witness and his office and what was the mode of

transport used by him to cover the distance. No such question

was asked. Thus, no inference can be drawn that on the day

of the incident Sher Singh was in his office at 9:30 AM. It is

further important to note that the statement Ex.PW-5/A of Sher

Singh, with the endorsement Ex.PW-10/A was forwarded to the

police station by SI Mukesh PW-10, as recorded on the

endorsement itself at 9:40 AM. Further, the FIR Ex.PW-1/A,

records the time of its registration being 9:55 AM. No

suggestion has been put to SI Mukesh Kumar or to Sher Singh

pertaining to the time when the statement Ex.PW-5/A was

recorded; the time on which the said statement and the

endorsement thereon was sent from the spot for registration of

an FIR and the time when the FIR was registered. Thus, the

presence of Sher Singh at the spot when the police arrive

within 15-20 minutes of the commission of the crime stands

corroborated through the medium of said documentary

evidence, purity of which has not been questioned by learned

counsel for the appellant.

27. We need not make a list of a plethora of judicial

pronouncements, for the reason their list would run into 1000s

of cases, where it has been held that witnesses in India tend to

exaggerate facts and frolic in verbosity; requiring the Court to

be careful and remove what possibly has been fantasized by

the witness and spoken of as having been seen by him, vis-à-

vis, what has been actually seen by the witness and narrated

thereto, while appearing as a witness in a Court.

28. The only difference we find in the deposition of Sher

Singh and Chet Ram on the issue of appellant having inflicted

the stab blow on the deceased is that Sher Singh who deposed

of Devki and Bhupan being present does not ascribe the role to

them of having caught hold of the deceased, but Chet Ram

ascribing said role to them.

29. Both the witnesses have spoken of the crowd

having assembled. According to Chet Ram about 50 people

had assembled. According to Sher Singh about 100 people

had assembled. In a crowd, estimation of persons being

present would vary from person to person, for the reason,

obviously a head count was not taken. The point we want to

bring out is that when so many people had gathered, a chaotic

scene would obviously be the result, and in such situation,

either somebody not seeing something or somebody just

imagining something happening cannot be ruled out.

30. In any case, benefit thereof would be to the account

of co-accused, which benefit we note have already been given

to them.

31. From the evidence on record we are satisfied that

the role of the appellant stands clearly established.

32. It was argued that since a single stab blow was

inflicted on the deceased, at best offence made out attracts

Section 304 IPC and not Section 302 IPC.

33. Merely because a single stab blow is inflicted, by

itself, does not mean that Section 302 IPC is not attracted. It

all depends upon the facts and circumstances of each case

and the relatable evidence thereto. Where an intention

surfaces and it is shown that the intention was to cause an

injury and that the injury which has been caused is proved to

be sufficient in the ordinary course of nature to cause death,

the act clearly attracts Section 300 thirdly. In the instant case,

the intention to cause the injury is clearly evidenced by the

fact that the appellant had used a knife and had directed the

blow towards the chest of the deceased, a vital part of the

body, containing vital organs i.e. the lung and the heart.

34. From the post-mortem report, it is apparent that

the knife pierced the right lung which collapsed. Due to

excessive bleeding, the deceased died at the spot itself. It is

obvious that the knife was thrust with a considerable force.

35. Seldom, in criminal law, can one find a case near

identical to another on facts and thus strictly speaking there

can be no precedent in a criminal case. But there are always

exceptions. Instant case has a precedent on identical facts. In

the decision reported as 2007 Cri LJ 1663 Imthiaz & Anr. Vs.

State of U.P. on a civil dispute between the deceased and the

accused over drainage, on the day of the incident, the

deceased and his brother were cleaning a drain and the

accused, one of whom was armed with a spear inflicted a

single stab injury on the left side of the chest, 3 inches above

the left nipple, which pierced the lung of the deceased who

suffered an instant death. The conviction of the accused was

sustained for the offence punishable under Section 302 IPC.

The Supreme Court observed that being armed with a deadly

weapon such as a spear itself evidences the definite intention

to cause death or at least a grievous injury with the spear, and

if the injury caused is found to be sufficient in the ordinary

course of nature to cause death, the offence would be under

Section 302 IPC and not Section 304 IPC.

36. We find no merit in the appeal.

37. The appeal is dismissed.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

March 23, 2009 mm