Prem Kumar vs The State
2009 Latest Caselaw 2361 Del

            THE HIGH COURT OF DELHI AT NEW DELHI
%                               Judgment delivered on:30.05.2009

+       CRL APPEAL NO. 233/1994

PREM KUMAR                                            ...     Appellant
                                 - Versus -
THE STATE                                             ...     Respondent

Advocates who appeared in this case:-

For the Appellant         : Ms. Neelam Grover
For the Respondent        : Mr M.N. Dudeja


CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE AJIT BHARIHOKE

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

AJIT BHARIHOKE , J

1. This appeal is directed against the judgment and order on

sentence both dated 1st October, 1994 of the Additional Sessions Judge,

Delhi by which the appellant has been convicted of an offence

punishable under Section 302 of the Indian Penal Code and has been

sentenced to undergo life imprisonment and to pay a fine of Rs 3000/-

and in default to undergo further rigorous imprisonment for a period of

one year.

2. Briefly stated case of the prosecution is that, on 1 st December,

1992, at about 7.30 P. M, near Akbar Hotel, near Ganga Mai Mandir,

A-Block, Madi Pur, Punjabi Bagh, Delhi, deceased Arun Kumar was

stabbed with a chhuri (dagger) by the accused/appellant Prem Kumar,

while he was going towards his residence. The deceased was

accompanied by PW-1 Panna Lal. On being stabbed, the deceased

somehow ran and managed to reach his house. He was followed by

Panna Lal. There he told his father Kartar Singh that he has been

stabbed by accused Prem Kumar. Kartar Singh and Panna Lal then

took the deceased Arun Kumar to ESI Hospital. The duty constable

present at the hospital conveyed the information to the police station

which was recorded as DD no. 30, dated 1st December, 1992. Copy of

the DD report was handed over to ASI Jai Kishan who arrived at the

hospital. In the meanwhile SI Harpal Singh also came to know about

the information and reached the hospital. He obtained the MLC of Arun

Kumar who was declared unfit for statement. SI Harpal Singh recorded

the statement of PW-1 Panna Lal at the hospital and it was sent to the

police station for registration of the case. SI Harpal Singh also collected

the sealed packet of the clothes of the deceased from the duty

constable. He also took possession of the blood stained pants of PW-1

Panna Lal and father of the deceased. Putting those pants into sealed

packets, SI Harpal Singh, thereafter, came to the spot and lifted the

blood stained earth and controlled earth which was taken into

possession after placing them in sealed parcels. On the same night on

pointing of PW-1 Panna Lal, investigation officer apprehended accused

Prem Kumar near his house. On search it was found that he was in

possession of one chhuri (dagger) Ex. P-9 which was tucked in the belt

of pant of the accused and concealed under the shirt. There were blood

stains on the chhuri (dagger). Sketch of the dagger was prepared and it

was taken into possession. Investigating Officer also took into

possession blood stained pant and the shirt of the accused after putting

those clothes into a sealed packet. During investigation IO visited

Akbar Hotel. There he met eye witnesses PW-6 Daulat and PW-7

Ismail Khan. He recorded their statements. The IO also prepared a

rough site plan of place of occurrence Ex.PW 22/C on 2.12.1992 and

got prepared scaled site plan Ex.PW 11/A from the draftman on

2.2.1993. He arranged for sending of blood stained clothes of the

deceased, the accused, PW-9 Kartar Singh and PW-1 Panna Lal as also

blood stained earth sample and the dagger to Central Forensic Science

Laboratory (CFSL). On serological examination human blood of blood

group 'O' was found on all the samples except the control earth sample

which gave no reaction for blood. The IO also sent the accused for

medical examination and obtained his MLC which indicated linear

abrasion (scratch) on medial aspect of his right thigh about 3.5 cm in

size. On completion of the investigation the accused was sent for trial.

3. The learned Additional Sessions Judge has relied upon the

testimonies of PW-6 Daulat and PW-7 Ismail Khan and PW-9 Kartar

Singh, father of the deceased, as also the evidence pertaining to

recovery of chhuri /dagger from the possession of the accused at the

time of his arrest which had blood stains and those blood stains

ultimately were found to be of the group 'O' which was the blood

group of the deceased, and concluded that prosecution has proved the

guilt of the appellant beyond reasonable doubt.

4. Ms. Neelam Grover, learned counsel for the appellant has

contended that the prosecution case is full of infirmities and it has

failed to make out the case against the appellant beyond reasonable

doubt. Inasmuch as PW-1 Panna Lal has not supported the case of

prosecution and has even denied that the rukka was prepared at his

behest. She has contended that names of the eye witnesses PW-6

Daulat and PW-7 Ismail Khan do find mention in the FIR and even

their presence at the spot at the time of occurrence is highly doubtful.

The learned counsel for the appellant has further argued that the

recovery of the weapon of offence i.e. dagger Ex.P-9 is also doubtful as

it is most unnatural that the accused would carry the weapon of offence

on his person after inflicting serious stab injuries to the deceased for

hours after the occurrence. Thus, she has urged us to infer that

prosecution has failed to establish the guilt of accused beyond

reasonable doubts and that the appellant has been falsely implicated in

this case.

5. The learned counsel for the State on the other hand has contended

that learned trial court has rightly relied upon the testimonies of PW-6

Daulat and PW-7 Ismail Khan as also the father of the deceased, Kartar

Singh, regarding his son having told him the name of the appellant as

the assailant and also about the recovery of the blood stained dagger

from the possession of the accused at the time of the arrest. The

learned counsel for the State further contended that non-mention of

names of eye witnesses PW-6 Daulat and PW-7 Ismail Khan in the FIR

would not render their testimonies unreliable, if otherwise trustworthy.

He also submitted that the factum of PW-1 Panna Lal turning hostile, is

of no consequence because the guilt of the accused stands proved

beyond reasonable doubt from the testimonies of the eye witnesses

which finds corroboration from the evidence of the recovery of dagger

having blood stains of blood group 'O' which was the blood group of

the deceased and also the dying declaration made by the deceased to his

father Kartar Singh immediately after the occurrence.

6. It has been urged on behalf of the appellant that presence of PW-

6 Daulat near the spot of occurrence is highly doubtful. In support of

this contention, the learned counsel for the appellant has drawn our

attention to the testimony of PW-6 Daulat, wherein he has stated that

he, at the relevant time, was working at a chappal shop at Karol Bagh

and on working days he used to leave the shop at about 8/8.30 P.M,

thereafter, he used to proceed for his home by bus and the travelling

time from Karol Bagh to his home was about twenty minutes. Ld.

Counsel has pointed out that in his cross-examination PW-6 Daulat has

admitted that the day of occurrence was a working day and not a

holiday. On the aforesaid facts she has argued that if it was a working

day, PW-6 Daulat could not have reached the spot of occurrence at 7.30

p.m, therefore, his testimony ought to have been rejected as doubtful.

We are not in agreement with this contention of the learned counsel for

the appellant. It is not uncommon that people sometimes leave their

place of work earlier to closing hours because of various reasons. It is

possible that the witness might have left the shop early on the relevant

day. It would be noticed from his cross-examination that the learned

defence counsel has not asked any question to seek clarification from

the witness whether or not he left the shop on the relevant day earlier to

the closing hours.

7. The learned counsel for the appellant has further urged that

testimony of PW-7 Ismail Khan is also not reliable because he has

stated that immediately after the occurrence he visited the house of the

accused but he did not disclose his name to the father of the deceased.

The learned counsel has further submitted that if PW-7 Ismail Khan

had seen the accused stabbing the deceased, it was expected of him to

tell the father of the deceased his address and that the appellant Prem

Kumar has stabbed his son. Thus, she has urged us to reject his

testimony. We are not convinced with the submission because we

cannot lose sight of the fact that when the deceased had reached home

he was seriously injured and at that time the main concern of the father

of the deceased as also the others was to immediately take him to

hospital to save his life. Otherwise, also it is not clear whether on

reaching the house of the deceased witness, Ismail Khan had an

opportunity to talk to the father of the deceased. It is note worthy that

different people react to a situation in a different manner, therefore, just

because the witness did not give his name to the father of the deceased

his testimony cannot be rejected as unreliable.

8. The learned counsel for the appellant has further submitted that

PW-6 Daulat and PW-7 Ismail Khan have been introduced only to

provide support to the prosecution. In support of her contention,

learned counsel has drawn our attention to the site plan Ex. 22/C, which

obviously was prepared on 2nd December, 1992. She has argued that in

this rough site plan mark, D and E, are shown as points defining the

position of eye witnesses PW-6 Daulat and PW-7 Ismail Khan at the

time of occurrence. In support of the argument she has drawn our

attention to the testimony of PW-22, SI Harpal Singh, the I.O, and has

submitted that according to the statement of SHO Sh. S. Kumar

(PW27), he along with SI Harpal Singh visited the spot of occurrence

in the morning of 3rd December, 1992 at around 11.30 to 11.45 A.M for

making inquiry from the locals. Learned Counsel has pointed out that

SHO, Sh. S. Kumar, is categoric in his version that except PW-6 Daulat

and PW-7 Ismail Khan who came forward, everyone else expressed

ignorance about the occurrence. She contended that from the above

evidence, it is apparent that PW-6 Daulat and PW-7 Ismail Khan met

the SHO S. Kumar for the first time on 3rd December, 1992, therefore,

it remains unexplained as to how position of said witnesses at the time

of occurrence came to be shown in the site plan Ex. PW 22/C, which

was prepared on 2nd December, 1992. Thus, she has submitted that

presence of PW-6 Daulat and PW-7 Ismail Khan at the time of

occurrence is doubtful and the learned Additional Sessions Judge has

erred by placing reliance on their testimony.

9. The argument on the face of it appears to be convincing but

we are not inclined to accept it, particularly when SI Harpal Singh, who

is the author of site plan Ex. PW 22/C, in his cross examination

recorded on 23rd August, 1994 has stated that on 2nd February 1993 (it

appears that 1993 is a typographical error in the evidence and it should

have been 1992) all the three witnesses indicated the respective places

where they were standing at the time of occurrence, to the draftman.

He has also stated in his cross-examination that on the said date he had

summoned all the three witnesses to the spot occurrence. This clarifies

the position that Daulat and Ismail Khan had actually met SI Harpal

Singh on 2nd December, 1992 and on their pointing out the rough site

plan Ex. PW 22/C was prepared. Therefore, much mileage cannot be

obtained by the appellant because of the slight discrepancy as regards

the date on which eye witnesses Daulat and Ismail Khan, first met the

Investigating Officer and this minor lapse, can be attributed to the

failure of human memory.

10. The learned defence counsel has further submitted that

presence of PW-6 Daulat and PW-7 Ismail Khan at the spot of

occurrence is highly doubtful as their names do not find mention in the

FIR or the rukka Ex.PW1/A. She has further stated that had they been

present at the spot of occurrence, complainant Panna Lal would have

mentioned their names in his statement which is recorded in rukka

Ex.PW1/A. It is true that name of PW-6 Daulat and PW-7 Ismail Khan

does not find mention in the rukka Ex. PW1/A. To our minds this by

itself will not render the testimony of the witnesses unreliable,

particularly when these two witnesses, as per their testimonies, were

present near a tea shop, near Akbar Hotel. The incident had taken place

in the month of December at about 7.30 P.M. In winters, sun sets quite

early and it is dark by 7.00 P. M. Therefore, it is possible that PW-1

Panna Lal who was accompanying the deceased at the time of

occurrence might not have noticed the witnesses PW-6 Daulat and PW-

7 Ismail Khan standing near Akbar Hotel. This explains non-mention of

their names in the rukka. Otherwise also, it is settled law that it is not

absolutely necessary that names of all witnesses must figure in the FIR.

It depends upon the peculiar facts of the case, as to how much

importance is to be given to the omission of names of witnesses in the

FIR. If the court, on appreciation of evidence, is satisfied about the

trustworthiness of the testimonies of witnesses non-mention of their

names in the FIR will not render their testimonies unreliable. On

consideration of evidence, we are of the view that PW-6 Daulat and

PW-7 Ismail Khan are independent witnesses. Neither of them have

any link either with the appellant or the deceased or the father of the

deceased to render them as a partisan witness. Therefore, we are of the

view that learned trial Judge has rightly relied upon their testimonies.

11. The learned counsel has submitted that testimony of PW-9 Kartar

Singh regarding dying declaration of his son, to the effect that he was

stabbed by the appellant Prem Kumar, is unreliable. Learned counsel

for the appellant has submitted that admittedly PW-9 Kartar Singh

accompanied the deceased to the hospital along with Panna Lal, if that

was so, under natural course of circumstances such important fact of

dying declaration, made by the deceased should have found mention in

the rukka Ex. PW-1/A prepared on the basis of statement of Panna Lal

in whose presence the dying declaration was made. To our minds the

contention of the learned counsel for the appellant is not acceptable.

We cannot lose sight of the fact that PW-1 Panna Lal was an eye

witness to the occurrence which he narrated in his statement Ex. PW

1/A, wherein he directly implicated appellant Prem Kumar as assailant.

Therefore, he might not have given importance to the fact that deceased

also told his father that he was stabbed by the appellant Prem Kumar.

Further, under the natural course of circumstances, it is not expected of

a father to introduce the name of a third person as a culprit, knowing

fully well that such a statement would pave the way for the actual

culprit to go scot free. Therefore, we have no hesitation in accepting the

testimony of PW-9 Kartar Singh.

12. The learned counsel for the appellant also made a feeble attempt

at discrediting the evidence of recovery of the dagger Ex. P-9 from the

possession of the appellant at the time of his arrest. She has argued that

it is highly improbable that the appellant after commission of a serious

offence would carry the weapon of offence with him, which obviously

has a potential of establishing his culpability. We are not convinced

with the aforesaid argument. There can be a number of reasons for the

appellant carrying the weapon of offence with him, till he was arrested

on the same night. PW-22 SI Harpal Singh has categorically stated that

accused was arrested from near his house and on search, the dagger Ex.

P-9 was recovered from him. The aforesaid version finds corroboration

from the MLC of the accused Ex. PW-23/A. On perusal of the MLC, it

transpires that the accused had a linear abrasion (Scratch) on medial

aspect of right thigh about 3.5 cm in size. As per the opinion of the

doctor concerned, the said abrasion was caused because of sharp

trauma. This injury could obviously be caused due to friction of the

blade of the dagger on the thigh of the accused. Accused in his

statement under Section 313 Cr.PC has tried to explain that injury by

stating that aforesaid injury was caused by the nails of the arresting

police persons. The said explanation obviously is false because as per

testimony of PW-22, SI Harpal Singh, at the time of arrest, accused

was wearing pant and a shirt, therefore, the possibility of said injury

having been caused by the nails of arresting officer is ruled out. Thus,

under the circumstances, we have no reason to suspect recovery of the

dagger Ex.P-9 from the possession of the accused.

13. In view of the discussion above, we are of the view that the

learned trial Judge has rightly relied upon the testimony of eye

witnesses PW-6 Daulat and PW-7 Ismail Khan which finds

corroboration from the testimony of PW-9 Kartar Singh about the

dying declaration made by the deceased implicating accused Prem

Kumar as a person responsible for his injury and also the recovery of

weapon of offence i.e. dagger Ex. P-9 from the possession of the

accused and serological report which confirmed that the blood stains on

the dagger Ex. P-9 and pant and shirt of the appellant match with blood

group of the deceased i.e. group 'O'. Thus, we find no infirmity in the

impugned judgment.

14. The appeal is accordingly dismissed. The appellant, Prem

Kumar, is on bail. He is ordered to be taken into custody to undergo the

sentence as awarded by the learned Additional Sessions Judge. Period

of detention already undergone by appellant, Prem Kumar, shall be set

off in terms of Section 428 of Code.

AJIT BHARIHOKE, J

BADAR DURREZ AHMED, J

MAY 30, 2009 ab