Delhi High Court
Ramu Paswan vs State on 18 May, 2009
Author: Pradeep Nandrajog
i.8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 18th May, 2009
+ CRL. APPEAL 66/2009
RAMU PASWAN ..... Appellant
Through: Ms.Charu Verma, Advocate.
versus
STATE ..... Respondent
Through: Mr.Pawan Sharma, APP and
Ms. Richa Kapoor, APP
for the State.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether judgment should be reported in Digest? Yes
: PRADEEP NANDRAJOG, J. (Oral)
1. Vide impugned judgment and order dated 6.7.2004,
the appellant has been convicted for the offence of having
murdered Mrs.Raminder Khurana W/o Brig. Devinder Singh
Khurana at their residence i.e. Flat No.H-3/8 Shanker Vihar,
Delhi Cantt., New Delhi. Vide order dated 7.7.2004, the
appellant has been sentenced to undergo rigorous
imprisonment for life and to pay a fine in sum of Rs.500/-; in
default of payment of fine to undergo simple imprisonment for
six months.
2. The entire case of the prosecution stands
summarized and set out in the statement Ex.PW-3/A made by
Smt.Sunita Malik W/o Col.Anil Malik (PW-3) and the tehrir
Ex.PW-23/A recorded by Inspector S.P.Gupta PW-23.
3. On 29.9.1999 at 1521 hours DD No.16-A was
recorded by the Duty Constable at PS Delhi Cantt. to the effect
that police control room had flashed a wireless message
pertaining to a housewife being stabbed at H-3/8 Shanker
Vihar.
4. Inspector S.P.Gupta PW-23 accompanied by ASI
Gopal Krishan and Const. Rakesh left for the spot and on
reaching the place of the occurrence met Smt.Sunita Malik W/o
Col. Anil Malik PW-3 who informed the Inspector, as recorded in
her statement Ex.PW-3/A, as under:-
"Statement of Smt.Sunita Malik, W/o Col.Anil Malik, R/o
H-3/6, Shankar Vihar, Delhi Cantt. New Delhi, aged 42
years
I reside at the aforenoted address with my family. My
husband Col. Malik is posted at the Army HQ New
Delhi. Today at around 3 O‟ clock I heard sound of
knocking at the main door followed by ringing of the
bell. On opening the door I saw Mrs.Raminder
Khurana smeared in blood lying outside the main door.
She was bleeding profusely from the chest. At the
gallery outside Mrs.Shashi and my servant Santosh
W/o Kali Charan as also another servant were
standing. A servant ran downstairs and called
Col.Gurang so that Mrs.Khurana could be removed to
the hospital. I handed over the key of my car to
Col.Gurang. Neighbours removed Mrs.Khurana to the
car. Santosh told me that she had responded to the
shrieks of her house mistress and as she reached the
house of Brig.Khurana she saw somebody closing the
door from inside. Somebody informed the police. On
arrival the police broke the main door of the flat of
Brig.Khurana and from within took out the domestic
servant Ramu working with Brig.Khurana. At that time
the clothes of Ramu were stained with blood."
5. On the statement Ex.PW-3/A, Inspector S.P.Gupta
made the endorsement Ex.PW-23/A recording as under:-
"To the duty officer Delhi Cantonment New Delhi.
On receipt of a wireless message that the wife of a
brigadier has been stabbed at house No.H-3/8,
Shankar Vihar, along with ASI Gopal Kishan and
Const.Rakesh 976/SW I reached H-3/8, Shankar Vihar
and found SI Uddham Singh along with the staff of the
PCR present. I learnt that Mrs.Raminder Kaur W/o
Brig.Devender Singh who had stabbed with a knife had
been removed to R.R.Hospital from outside house
No.H-3/8, Shankar Vihar and H-3/6 Shankar Vihar as
she was found lying in the space outside said two
flats. Blood stains are present at the place of
occurrence. Statement of Smt.Surinder Malik R/o H-
3/6 Shankar Vihar has been recorded at the spot as
per which she has informed that somebody had closed
the main door of the flat of Mrs.Raminder Khurana
from within. With the help of all police personnel the
main door was broken a person whose identity was
disclosed as Ramu S/o Rogani Paswan, R/o Village
Pachari was found inside with a belt in one hand and a
hammer in the other. He was overpowered. The
statement of Smt. Sunita Malik has been affirmed by
her. Thereafter leaving SI Uddham Singh to guard the
spot I proceeded with Const.Rakesh to the Army
R.R.Hospital where as per MLC No.277/99 it was
recorded that Mrs.Raminder Khurana W/o
Brig.D.S.Khurana R/o H-3/8 Shankar Vihar was
declared brought dead. The aforesaid facts disclosed
the commission of an offence punishable under
Section 302 IPC and thus the tehrir is being sent
through Const.Rakesh for registration of an FIR. The
crime team and a photographer be sent. I am
proceeding to the place of occurrence.
Date and time of incident - 29.9.1999 at about 3:00
PM. Place of incident - Flat No.H-3/8, Shankar Vihar
Delhi Cantt. ND. Time of dispatch of tehrir - 5:30 PM."
6. Needless to state, as recorded in the endorsement
Ex.PW-23/A, Mrs.Raminder Kaur W/o Brig. Devinder Singh had
already been removed to the hospital. The door of house
No.H-3/8 Shanker Vihar, which was found locked from within,
had to be broken and from within, the appellant was
apprehended with clothes stained with blood.
7. The crime team as well as a photographer were
summoned. In spite of attempt, chance prints could not be
lifted. Photographs Ex.PW-8/1 to Ex.PW-8/17; negatives
whereof are Ex.PW-8/1A to Ex.PW-8/17A were taken.
8. Inspector S.P.Gupta proceeded to the hospital
where the injured was removed and learnt that she had been
declared dead. Her body was seized and sent for post-
mortem.
9. Dr.Arvind, Chief Medical Officer, Safdarjung Hospital
conducted the post-mortem on 30.9.1999 and recorded the
injuries on the person of the deceased, being a stab wound on
the left side of the chest at the level of the third rib, obliquely
placed. The second injury was an incised wound on the right
hand below right ring.
10. Internal examination revealed that the first stab
wound had pierced the chest cavity between the third and
fourth rib on the right side, cutting through the muscles and
the pericardium. The weapon of offence had pierced the upper
part of the right ventricle as also the right lung.
11. The injures were opined to be ante-mortem and
injury No.1 was opined to be caused by a sharp edged weapon
like a knife and was sufficient, in the ordinary course, to cause
death. Along with the post-mortem report, the clothes of the
deceased and blood sample on a gauze was handed over to
the investigating officer.
12. We note that a stitch wound on the left nipple was
also noted and was opined to be a surgical incised wound.
13. At the spot the kitchen knife Ex.P-1 was seized from
within the precincts of the house as recorded in the recovery
memo Ex.PW-6/B. The shirt Ex.P-2 and the pant Ex.P-3 worn
by the appellant at the time of his apprehension were seized
as recorded in the seizure memo Ex.PW-6/E.
14. The knife, the shirt and the pant as also the blood
sample of the deceased handed over after the post-mortem on
a piece of gauze were sent for serological examination and as
per report Ex.PW-23/G and Ex.PW-23/H it was opined that the
blood group of the deceased was „B‟. Human blood of group
„B‟ was detected on the shirt Ex.P-2. Due to inadequacy of the
blood on the knife Ex.P-1, the same could not be subjected to a
serological examination. Similar is the report qua pant Ex.P-3.
15. The appellant was sent for trial.
16. 23 witnesses were examined by the prosecution.
We need not note the testimony of all the witnesses for the
reason, no submissions have been made pertaining to the
testimony of the formal witnesses.
17. Lt.Col.K.K.Upadhyay PW-1, deposed that on
29.9.1999 the deceased was brought at the Referral Army
Hospital in a critical condition. She had a wound over second
intercostal space just left to the sternum. She was declared
dead at the hospital as recorded in MLC, Ex.PW-2/A which was
penned by Major Sabina Arora. PW-2 Major Sabina Arora
deposed that the MLC Ex.PW-2 was penned by her.
18. Dr.Anil, Chief Medical Officer, Safdarjung Hospital
deposed as PW-4 and stated that on 30.9.1999 he had
conducted the post-mortem of the deceased and the report
Ex.PW-4/A was in his handwriting. He deposed that three
injuries, one surgical and two others were noted by him which
he had so mentioned in the post-mortem report (the injuries
are as noted in para 9 above). He deposed that the cause of
death was haemorrhagic shock consequent upon the stab
injury No.1 and was sufficient in ordinary course to cause
death. He further deposed that the knife Ex.P-1 shown to him
in Court could be the weapon of offence by which the two
injuries were caused on the person of the deceased.
19. Smt.Sunit Malik PW-3, at whose instance the FIR
was registered, deposed that she used to reside at house
No.H-3/6 Shanker Vihar, Delhi Cantt. as on 29.9.1999 and
knew appellant Ramu Pawan. That on 29.9.1999 she was
present inside her house at about 3:00 PM and on hearing
knocking on the door of her house, opened the same, and saw
Mrs.Raminder Khurana (the deceased) was lying on the floor in
a pool of blood. Her servant Santosh and another servant of a
neighbour were present. She immediately went down and
called Col. Gurang who was on leave on that day. Col. Gurang
took Mrs.Raminder Khurana to the hospital in her car. That the
appellant had bolted the main door from inside. The police
was called. The police broke open the door of the house of the
deceased and at that time her maid Santosh and some
neighbours were present. Statement Ex.PW-3/A was made by
her and bore her signatures at point „A‟. That the appellant
was apprehended and at that time his clothes were smeared
with blood.
20. Sunita Malik was cross-examined. Indeed, nothing
has been brought out in cross-examination to demolish her
testimony.
21. Santosh, the maid servant of PW-3, about whose
presence PW-3 has referred to in her deposition, was examined
as PW-10. She deposed that on 29.9.1999 she was present at
the ground floor below flat No.3, Shanker Vihar, New Delhi and
at about 3:15 PM heard the noise of cries. She and her sister
Suman, who was sitting by her side, ran towards the place
upon hearing the cries of the injured. She saw the owner of
house No.H-3/8 Shanker Vihar fall down at the door of house
No.H-3. They rang bell of house No.H-3/8 Shanker Vihar. Her
„memsaab‟ namely Sunita Malik came out and helped the
deceased to be removed to the hospital in her car.
22. We note that for unexplainable reasons, the learned
APP requested to cross-examine the witness. A request which,
for unexplainable reasons, was allowed by the Court. We find
nothing said by Santosh which is not supportive of the case of
the prosecution. Probably she was not using words which were
desired to be spoken of through her mouth by the learned APP.
23. On numerous occasions we have encountered such
a situation and have clarified the law on the subject. If a
witness of the prosecution is unable to comprehend a question
or while answering a question, omits certain details which are
desirous to be brought on record, it is always open for the
learned Public Prosecutor to seek permission of the Court to
put a leading question or give a suggestion to the witness.
This is the procedure which is required to be followed in such a
situation and not get a witness declared hostile.
24. Be that as it may, continuing with a descriptive
reference to the testimony of Santosh PW-10, suffice would it
be to note that she deposed that as she went upstairs to the
house of Brig. Khurana she saw that somebody had closed the
door from within. She stated that she could not remember if
Mr.Gurang had driven the car. She admitted that many people
had collected at the spot.
25. Suman PW-18, deposed that she and her friend
Santosh were sitting in a room at the ground floor and at about
3:00 PM, on 29.9.1999, heard cries of a lady. The cries were
coming from House No.3/8. She and Santosh immediately
rushed towards the direction from where cries were
emanating. She saw the wife of Brig. Khurana lying on the
floor and was bleeding.
26. Even Suman was declared a hostile witness and
was cross-examined by the learned APP for no apparent
reason.
27. On being cross-examined, she stated that when she
saw the injured lady for the first time, she i.e. the injured lady,
was knocking at the door of the neighbour i.e. House No.3/6
and was crying „bachao - bachao Sunita - Sunita‟. She stated
that she could not remember whether Mrs.Malik called
Col.Gurang.
28. Col.Shakti Gurang PW-22, deposed that on
29.9.1999 he was present at his house bearing No.H-2/2
Shanker Vihar, New Delhi. That two/three ladies including
Mrs.Sunita Malik came to his house and rang the door bell and
he opened the door. Mrs.Sunita Malik informed him that her
neighbour was stabbed by somebody and requested for help to
take the injured to the hospital as none of the ladies knew
driving. At that time he did not own a car and accordingly
removed the injured to the hospital in the car of Mrs.Malik.
The injured lady was unconscious. He was accompanied by
the daughter of Mrs.Malik. When he left for the hospital, on
the way he saw a girl coming from the opposite direction, who
happened to be the daughter of the injured. The daughter of
the injured also sat in the car and proceeded to the hospital.
On the way, the daughter of the injured pointed a car coming
from the opposite direction and said that the same was her
father‟s official car. He stopped. The husband of the injured
managed to sit on the rear seat of his car and all reached
R.R.Army Hospital at Rao Tula Ram Marg. The doctor on duty
started attending to the injured. He returned to his house and
handed over the car and the keys to Mrs.Malik.
29. Jaspal Jolly PW-6 deposed that the deceased was his
elder sister and that in the afternoon of 29.9.1999 his niece
Simran informed him that their servant Ramu Paswan had
stabbed the deceased who was removed to R.R.Hopsital. He
reached the hospital and identified the dead body of his sister
as per his statement Ex.PW-6/A. He joined the investigation.
In his presence the knife Ex.P-1 was seized by the police from
near the door of the kitchen as recorded in the seizure memo
Ex.PW-6/B and that a hammer Ex.P-4 and a belt Ex.P-5 were
seized from near a table in the corridor as recorded in the
seizure memo Ex.PW-6/G. He deposed that the clothes of the
accused were seized vide seizure memo Ex.PW-6/C, but went
on to add that the accused was not present there and had
already been arrested. He further deposed that the police
seized the blood with the help of cotton from near the main
door as also the drawing room near the fridge as recorded in
the seizure memo Ex.PW-6/D. That blood from outside the
main door was seized as recorded in the seizure memo Ex.PW-
6/E. He identified his signatures at point „A‟ on all the recovery
memos afore-noted.
30. Major General Rajiv Chopra PW-21 deposed that he
was posted as a Brigadier in MCC Directorate on 29.9.1999 and
at about 3/3:30 PM was present in his office. Wing
Commander Bhupinder Singh informed him of having received
telephonic information that wife of Brigadier Khurana was
murdered in her house. On receiving the information,
accompanied with Col. Man Singh, he reached the house of
Brig. Khurana. The police was present. The main door of the
house was bolted from within. The police officers knocked the
door several times and requested the person inside to open
the door, but the same was not opened by him. Ultimately,
the door had to be broken open. On opening the door, Ramu
Paswan was found inside, holding a hammer like object in his
hand and his clothes were blood stained.
31. Brig. Devinder Singh Khurana PW-5, the husband of
the deceased, deposed that Ramu Paswan was employed by
him as a domestic servant. On 29.9.1999 he had left his house
at about 8:30 AM for his office. He returned home at 1:30 PM
and left the house at 2:05 PM. At that time, his wife and
accused Ram Paswan were present in the house. His daughter
was in the college. That Ramu Paswan used to live in a
servant quarter attached to his house and Ramu Paswan used
to take money for his daily needs only, requiring remaining
amount to be retained by him; to be given at the request of
Ramu Paswan as and when he desired to go to his house and
that some days prior to the incident, the accused had
requested for leave to go to his house and that they had told
the accused to visit his house after the marriage of their
nephew which had to take place on 24.10.1999. He deposed
that at 3:00 PM, when he was in his office, he received a
message from Col.Anil Malik on telephone that he should
immediately reach his house as his wife Mrs.Raminder Khurana
had been stabbed by someone. He immediately proceeded to
his house in an official vehicle and on the way saw a maruti car
coming from the opposite direction in which his daughter was
sitting. At her indication he stopped his vehicle and saw his
wife lying on the rear seat in an injured condition and the
maruti car being driven by Col.Gurang. His wife was
unconscious. He also sat in the maruti car and took his wife to
the Army Hospital. Attempt made to revive his wife was futile
as she died.
32. On being cross-examined Brig. Devinder Singh
admitted that two orderlies were provided by the Indian Army
whose names were Havaldar P.C.Nair and Nayak Harinder
Singh to assist him in his house, but stated that the said
orderlies were not working in the kitchen and therefore
accused Ramu Paswan was employed by him for cooking in the
house. He stated in cross-examination that a servant quarter
attached to his flat was given by him to Ramu Paswan to
reside and the entrance of the servant quarter was separate.
He admitted that on the day of the incident the accused
prepared the breakfast for the family. He stated that he used
to pay Rs.600/- as salary to the accused. He admitted that
accused Ramu Paswan was a quite person and would never
speak in a high tone.
33. Mohan Singh PW-19 deposed that on 29.9.1999 he
was posted as a Head Constable In-charge of PCR van „Zebra-
41‟. On receiving information from the control room of
stabbing incident at army officers‟ colony Shanker Vihar, he
reached the colony and saw the first floor of house No.H-3/8
Shanker Vihar was bolted from outside and within. He
informed the local police and in pursuance thereof Inspector
S.P.Gupta, SHO, Delhi Cantt. reached the spot and pushed
open the door. Accused Ramu Paswan was taken out from the
house.
34. Inspector Udham Singh PW-20, deposed that on
receipt of copy of DD No.16A, accompanied by Const. Sunder
Lal he reached House No.3/8 Shanker Vihar and saw that a
crowd had gathered in front of the house. He was informed by
somebody that Smt.Raminder Khurana, the wife of
Brig.Khurana had been stabbed and had been removed to
R.R.Hospital by some person. He learnt that somebody was
present inside the house and had bolted the door from within.
Inspector S.P.Gupta, SHO, PS Delhi Cantt. along with the staff
reached there and in his presence, requested the person inside
to open the door and even warned him to do so. The person
inside refused to open the door. The door was broken open.
Accused Ramu Paswan was found inside the house, holding a
hammer in one hand and a belt in the other. Blood stains were
noted by him on the shirt of Ramu Paswan. Accused was
captured. In the process, the hammer and the belt fell down.
Inspector S.P.Gupta recorded the statement of Smt.Sunita
Malik and went to the R.R.Hospital after handing over the
custody of the accused to him. Inspector S.P.Gupta returned
to the spot at 5:45 PM. Site plan was prepared. Crime team
and a photographer were summoned. Crime team inspected
the spot. Photographer photographed the place of incident.
Inspector S.P.Gupta again went to R.R.Hospital and returned at
7:00 PM and recorded the statement of the witnesses who
were present. Accused Ramu Paswan was formally arrested at
7:40 PM as per arrest memo Ex.PW-20/A which bore his
signatures at point „A‟. That the accused was interrogated and
his disclosure statement Ex.PW-20/C, which bore his signatures
at point „A‟ was recorded. The accused got recovered a knife
which was seized vide seizure memo Ex.PW-6/B which bore his
signatures at point „A‟. That the hammer and the belt which
had fallen down were seized vide seizure memo Ex.PW-6/G
which bore his signatures at point „B‟. Blood was lifted in front
of the house i.e. the gallery between House No.H-3/6 and H-
3/8. It was also lifted from various places within the house as
recorded in the three memos Ex.PW-6/D, Ex.PW-6/E and
Ex.PW-6/F all of which bore his signatures at point „B‟. That
the hammer Ex.P-4 and the belt Ex.P-5 were the ones which
were lifted from the spot as recorded in the seizure memo.
That the knife Ex.P-1 was the same knife which was seized
vide seizure memo Ex.PW-6/B.
35. On being cross examined, Inspector Udham Singh
stated that the PCR van had reached the spot prior to him.
The SHO reached the spot after about 10/15 minutes of his
reaching the spot. The door of the house was broken open
after the SHO arrived at the spot and that he remained at the
spot till 10:15 PM. The crime team tried to lift finger-prints but
could not lift the same and remained at the spot for about 2 ½
hours. That the accused remained at the spot till all left for the
police station in the night at about 10:15 PM. Statement of
Sunita was also recorded in his presence. He stated that the
various seizure memos which were drawn in his presence were
signed by him along with Jaspal Jolly.
36. Inspector S.P.Gupta PW-23 deposed that on
29.9.1999 he was posted as the SHO PS Delhi Cantt. and
received a message that wife of a Brigadier had been stabbed
at H-3/8 Shanker Vihar, Delhi Cantt. On receipt of the
message, accompanied by ASI Gopal Krishan and Const.
Rakesh he reached the spot. SI Udham Singh along with his
staff had already reached there. Sunita Malik met him there
and revealed that a person had bolted the door of house No.H-
3/8 from inside and that person could be involved in the
stabbing of Mrs.Khurana. He knocked at the door of H-3/8
repeatedly and also instructed the person present inside to
open the door, but received no reply. He broke open the door
and found the accused present inside, holding a belt in one
hand and a hammer in the other, and that there were stains of
blood on his shirt. He recorded the statement Ex.PW-3/A of
Sunita Malik and went to the R.R.Hospital where the injured
was admitted but had died. He made the endorsement Ex.PW-
23/A on the statement of Sunita Malik and sent the same
through Const.Rakesh for FIR to be registered at the police
station. The FIR Ex.PW-9/A was registered. He returned to the
spot and prepared a site plan Ex.PW-23/B. A photographer and
a crime team were summoned. Photographs Ex.PW-8/1 to
Ex.PW-8/17 were taken in his presence. He prepared the
inquest papers Ex.PW-5/B after dead body was identified by
Jaspal Jolly and Brig.Devinder Singh Khurana. He arrested the
accused as recorded in the arrest memo Ex.PW-20/A. The
blood stained clothes of the accused were seized by him as
recorded in the seizure memo Ex.PW-6/C. He interrogated the
accused and recorded his statement Ex.PW-20/C. He seized
the knife, hammer and belt as recorded in the seizure memo
Ex.PW-6/B and Ex.PW-6/G. He lifted blood from various spots
and recorded the same in the seizure memos Ex.PW-6/D and
Ex.PW-6/E. Blood was lifted from the main gate of the place of
incident as recorded in the seizure memo Ex.PW-6/F. He
obtained the post-mortem report Ex.PW-4/A. After a few days,
he got prepared the site plan to scale Ex.PW-7/A and sent the
various exhibits to the CFSL laboratory and obtained the
reports Ex.PW-23/G and Ex.PW-23/H. He deposed that he
recorded the statement of the various witnesses. He identified
the knife Ex.P-1, the hammer Ex.P-4 and the belt Ex.P-5 as the
ones seized by him. He identified the shirt Ex.P-2 and the pant
Ex.P-3 which he took possession of from the person of the
appellant.
37. Three incriminating circumstances have been held
to be established by the learned Trial Judge. Firstly that the
deceased and the appellant were the only two persons in the
house when the offence took place and there being no
explanation by the accused as to how the deceased was
injured. Secondly that human blood of group „B‟ i.e. the same
group as that of the deceased was detected on the shirt of the
accused and that the accused could not account for the same.
Lastly, the conduct of the accused who was a domestic help in
the house of bolting the door of the house from within after the
lady of the house stumbled out of the house in an injured
condition.
38. Though not so expressly stated by the learned Trial
Judge, the signature tune of the reasoning is apparent. The
deceased was admittedly proved to have been stabbed inside
her house. She stumbled out of the house. A person within
the house locked the door. Nobody entered the house
thereafter. The door was broken open. The wounds were not
opined to be self inflicted. In the absence of any explanation
given by the person found inside the house as to how the
deceased sustained the injuries, the obvious presumption
would be that the person concerned had done the act. Add on
to it the circumstance of blood of human origin of the same
group as that of the deceased being detected on the shirt of
the accused. The inevitable conclusion would be the guilt of
the accused.
39. Learned counsel for the appellant has urged that
the witnesses of the prosecution have deposed that when the
main door of the house was broken they saw the accused
standing inside the house holding a hammer in one hand and a
belt in the other. Counsel urges that the post-mortem report
of the deceased does not show that the hammer and the belt
were the weapons of offence. Counsel submits that the
evidence on record does not rule out the possibility of
somebody else being the assailant. It is urged that no motive
has been proved. It is urged that the finger print of the
appellant has not been detected on the knife Ex.P-1. Counsel
urges that the testimony of PW-6 demolishes the seizure of the
shirt and the pant allegedly worn by the accused at the time of
the incident and seized at the spot. Counsel urges that
Simran, the daughter of the deceased, as also the two
orderlies of the deceased namely Havaldar P.C.Nair and Nayak
Harinder have not been examined. Counsel urges that the
accused has been shown to be arrested at 7:30 PM. Counsel
submits that the samples seized by the police on 29.9.1999
were sent to the CFSL laboratory after two months i.e. on
30.11.1999. Lastly, counsel urges that a single stab blow has
been inflicted on the person of the deceased and hence it
cannot be said that the intention of the accused was to murder
the deceased.
40. Arguments which do not anchor have no substance
or meaning. Rolled over submissions take the Court nowhere.
Unless a submission is anchored to a conclusion, by itself the
same would have no meaning.
41. It is not necessary to establish motive for every
crime. Many a times, it becomes difficult for the prosecution
to lead satisfactory evidence pertaining to motive.
42. But it cannot be said that in the instant case no
motive is surfacing.
43. A possible motive is surfacing from the testimony of
Brigadier Devinder Singh Khurana PW-5, the husband of the
deceased. He has deposed that the accused had wanted
leave, to go to his house and that the same was turned down
as there was a marriage of his nephew scheduled for
24.10.1999. The possibility of the accused having an
altercation with the house-mistress cannot be ruled out on said
issue.
44. We fail to understand as to what would be the
consequences of the accused holding a hammer and a belt in
his hand which obviously are not the weapons of offence.
What turns thereon? Nothing we can think of.
45. It is possible that the accused picked up the
hammer and the belt when he heard the door of the house
being pounded, apprehending that the public outside may
assault him and that in the said circumstance he would either
scare them or use the hammer or the belt as weapons of
defence.
46. That no chance fingerprints could be lifted is a
coincidence. It is not that the prosecution made no attempt to
lift chance fingerprints. It does happen that chance finger
prints are not developed when attempted to be picked up.
47. We fail to understand the logic of the argument of
Simran and Havalder P.C.Nair and Nayak Harinder Singh not
being examined. It is not the case of the defence or
prosecution that they were eye-witnesses.
48. As noted herein above, through the testimony of
PW-5 and the testimony of PW-22, we have on record that
Simran, the daughter of the deceased was not present in the
house as she had gone to the college. When her mother, in an
injured condition, was being removed to the hospital by PW-22,
the daughter of PW-22 who was accompanying him, saw
Simran and made her sit in the car. What would be the
necessity to examine Simran? Obviously none.
49. PW-5 has categorically deposed that when he left
his house at 2:05 PM his wife and his servant Ramu Paswan
were present in the house. No suggestion has been made to
the witness during cross-examination that even Havaldar
P.C.Nair and Nayak Harinder Singh were present in the house.
There is no evidence that said official orderlies provided to
Brig. Devinder Singh Khurana were present in the house. What
was the need to examine them? Obviously none.
50. That the accused was arrested at 7:30 PM is a
matter of fact. But, where does that take us to? We note that
except for urging that the accused was formally arrested at
7:30 PM learned counsel could take the argument no further.
51. When an accused is apprehended, there is always a
hiatus vis-à-vis the formality of the arrest being completed.
52. From the testimony of the investigating officer i.e.
PW-23, it is apparent that after they broke open the house
where the crime took place, he recorded the statement Ex.PW-
3/A of Sunita Malik and proceeded to the R.R.Hospital. He did
so for the reason the consequences of the act of the accused
had to be ascertained i.e. whether the FIR had to be for an
offence of attempt to murder or murder. He came back to the
spot after learning that the deceased had died and thereafter
made an endorsement Ex.PW-23/A for registration of the FIR.
The time of the incident is 3:00 PM. The police reached the
place soon thereafter. The main door was broken open. The
statement Ex.PW-3/A was recorded. The investigating officer
proceeded to the hospital. He spent some time at the hospital.
He reached thereafter. Time was consumed. The formality of
the arrest being completed at 7:30 PM is accordingly
explainable.
53. At this stage it becomes important to note that the
tehrir Ex.PW-23/A was dispatched from the spot at 5:30 PM. As
noted above, the incident took place at 3:00 PM. The tehrir
was dispatched at 5:30 PM. We have noted herein above the
contents of the statement Ex.PW-3/A and the tehrir Ex.PW-
23/A. The same record the complete investigation which was
over within less than two hours of the crime being committed.
That leave no scope for the police to manipulate or plant any
evidence against the accused. It records the presence of
Santosh PW-10, Suman (wrongly noted as Shashi) PW-18, as
also the presence of Sunita Malik and the role played by the
Col. Gurang to rescue the deceased.
54. So soon have the contemporaneous events been
recorded that they lend assurance and credibility to the facts
unearthed by the prosecution and as led and proved at the
trial.
55. It is no doubt true that the various exhibits lifted
and seized by the police on 29.9.1999 were sent to the
laboratory on 30.11.1999. But, from the said fact alone, we
cannot draw any adverse inference of anything being
tampered with.
56. The testimony of the malkhana incharge i.e. HC
Satbir PW-15 shows that all the articles which were seized on
30.9.1999 were deposited in the malkhana on the same day
vide entry at serial No.1407 and 1409. Only one box i.e. the
box containing the knife was sent to the CFSL laboratory on
4.10.1999 which was received back on 11.11.1999. Nine other
parcels were removed from the malkhana on 30.11.1999 and
were received back on 2.8.2000.
57. It is apparent that the seized articles remained in
the malkhana and were not in the custody of the investigating
officer. The day they were removed from the malkhana was
the day they were deposited with the FSL laboratory at Malviya
Nagar.
58. The delay in sending the seized articles to the FSL
laboratory is the unfortunate consequence of inadequate
laboratories functioning in the Union Territory of Delhi. We
have only two FSL laboratories in Delhi. One is the Central
Forensic Science Laboratory at R.K.Puram and the other is the
Central Forensic Science Laboratory at Malviya Nagar and now
relocated to Rohini. The FSL Laboratories do not receive
samples at random. On prior intimation given, the FSL
Laboratories give a priority position for samples to be sent and
only thereafter, as per date notified by the laboratory the
samples are sent. This explains the delay in sending the
seized articles to the FSL Laboratory.
59. But, what is important is that the purity of the
seized articles has remained intact. They were deposited in
the malkhana on the day on which they were seized. They
were removed from the malkhana the very day they were
deposited at the forensic science laboratory.
60. That leads us to the last stage of our decision.
Whether on the evidence on record an inference can be drawn
pertaining to the guilt of the accused?
61. PW-5 Brig. Devinder Khurana has categorically
deposed that Ramu Paswan was employed as a domestic help
by him. This testimony of PW-5 has gone unchallenged. He
has further deposed that on the day of the incident the
accused had prepared breakfast for the entire family and he
had left for his office and his daughter had left for her college.
He returned home at 1:30 PM and changed his uniform, and in
a civil dress left at 2:05 PM and at that time, his wife and his
servant Ramu Paswan were present in the house and his
daughter had not returned. This testimony of PW-5 has gone
unchallenged. No suggestion has been put to the witness that
when he left the house at 2:05 PM any other servant or person,
much less Havalder P.C.Nair and Nayak Harinder Singh were
present in the house.
62. The testimony of PW-5 establishes that when he left
his house at 2:05 PM on 29.9.1999 the deceased and the
accused were the only two persons present in the house.
63. The testimony of PW-3, PW-10 and PW-18
establishes that when the deceased had stumbled out of her
house, shrieking for help and knocking at the door of the
opposite flat i.e. the flat of PW-3, the door of the flat in which
the crime was committed was closed from within. Nobody
entered the house thereafter. The door of the house where
the crime took place had to be broken open, as per testimony
of the three witnesses as also the testimony of PW-19, PW-21,
PW-16, PW-21 and PW-23.
64. From the afore-noted facts i.e. that the deceased
and the accused were the only two persons present in the
house and that after the deceased was injured inside the
house and on her stumbling out of the door, the house was
locked from within, any logical mind would reach the inevitable
conclusion that in the absence of any explanation from the
side of the accused, the only inference possible is of the guilt
of the accused.
65. Indeed, the theory of last seen evidence says so.
The theory of last seen evidence requires that where the
deceased is seen alive with an accused and so soon thereafter
the deceased is found dead or injured and there is no
possibility of any other person accessing the deceased, unless
the accused explains the circumstance under which the
deceased sustained the injuries, the accused must own up the
guilt. It was so 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.
66. Thus, ignoring all other evidence against the
accused, from the testimony of PW-3, PW-10, PW-18, PW-19,
PW-21, PW-16, PW-21 and PW-23 it is apparent that the
findings returned by the learned Trial Judge are correct.
67. Add on the further evidence that the shirt Ex.P-2
recovered from the person of the accused when the accused
was apprehended has been opined to be stained with human
blood of group „B‟ i.e. the same group as that of the deceased
adds another incriminating circumstance against the accused
who has not explained as to how his shirt came to be stained
with human blood of group „B‟.
68. The last contention urged that there being only one
fatal injury, it cannot be said that the accused intended to kill
the deceased thus, at best, case is made out for the offence
punishable under Section 304 IPC and not for the offence
punishable under Section 302 IPC needs to be dealt with.
69. We notice that the accused has not projected any
defence of being provoked by the deceased. We note that the
accused has given no explanation, when examined under
Section 313 Cr.P.C. as to what made him commit the crime.
Thus, explanation pertaining to a sudden and grave
provocation or the accused acting upon a sudden quarrel
cannot be projected as defence by the accused.
70. The only evidence we have on record is the post-
mortem report. The dead body has spoken through the post-
mortem report.
71. Two injuries have been inflicted by a knife on the
deceased. The first is a defensive wound on the hand. The
other is a stab blow which has pierced the chest cavity from
between the third and the fourth rib. Piercing through the
heart the knife has cut through the right lung.
72. It is apparent that the accused was acting under an
impulse to either kill the deceased or inflict an injury on a vital
part of the body. That the deceased managed to ward off one
attack, evidenced by the injured on the hand of the deceased,
does not mean that the said injury has to be ignored.
73. Intention to cause an injury has to be gathered with
reference to the injury caused. Needles to state, a normal
presumption has to be raised by the Court that every person
intends the consequences of his acts.
74. The injury caused on the person of the deceased
which has proved to be fatal is the injury on the chest. The
ferocity of the blow is evidenced by the fact that the knife has
pierced about 10 cm deep into the chest cavity cutting through
the heart and piercing the right lung. The ferocity of the
attack is a fact wherefrom an intention can be gathered.
75. Assuming that some leeway has to be given to the
accused on the fact that only one fatal injury has been caused,
Part-IV of Section 300 IPC has not to be kept out of sight and
out of mind.
76. If a person commits an act knowing that it is so
imminently dangerous that it must, in all probability cause
death or said bodily injury as is likely to cause death and
commits such an act without any excuse for incurring the risk
of causing death or said injury as aforesaid, is guilty of murder.
77. The chest cavity houses the heart and the lung.
Both are vital organs. He who thrusts a knife with sufficient
force was so as to pierce the chest cavity by about 10 cm
deep, piercing the heart and the lung in the process, can
certainly be attributed of knowingly doing an act so imminently
dangerous that it would, in all probability cause death or such
bodily injury as is likely to cause death.
78. Thus, on the evidence on record Section 300
Fourthly, if not Thirdly, is clearly attracted.
79. We find no merit in the appeal. The same is
dismissed.
PRADEEP NANDRAJOG, J.
INDERMEET KAUR, J.
May 18, 2009
Dharmender
