Delhi High Court
Surender Kumar @Dimpy & Ors. vs State on 19 November, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 11th November, 2009
Judgment Delivered on: 19th November, 2009
+ CRL.APPEAL NO.702/2001
SURENDER KUMAR @DIMPY & ORS. ...........Appellant
Through: Mr.D.C.Mathur, Senior Advocate with
Mr.Tarun Diwan, Advocate for
Appellant Surender.
Mr.Dilip Singh, Advocate for
Appellants Ramesh Chand and Ved Rani.
Versus
STATE ...........Respondent
Through: Mr.M.N.Dudeja, A.P.P.
Ms.Richa Kapoor, A.P.P.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
PRADEEP NANDRAJOG, J
1. Vide impugned judgment and order dated
07.08.2001 the appellants have been convicted for the offence
of having murdered Kishan Lal. Vide order dated 22.08.2001
they have been sentenced to undergo imprisonment for life.
2. Discussing the evidence, the finding returned by
the learned Trial Judge in para 29 of the impugned decision,
which also summarises the case of the prosecution is as
under:-
"29. The evidence on the record thus duly proves that
accused Surinder used to tease and mis-behave with
Usha and he again teased her on 13.1.99 and on the
complaint of Usha, her mother, maternal uncle (Kishan
Lal deceased) and her brothers had gone to the spot,
where a quarrel had taken place and accused Ramesh
Chand and Ved Rani caught hold of deceased Kishan
Lal and accused Surinder @ Dimpy stabbed him with
the knife on his chest and the injuries sustained by the
deceased proved fatal and he expired in the hospital."
3. The first recorded information pertaining to the
death of Kishan Lal (hereinafter referred to as the deceased),
is when DD No.7-A Ex. PW-18/A was recorded at the PS Patel
Nagar by HC Pushpa PW-18 pertaining to information being
received about a man being stabbed somewhere near
H.No.T-313/8, Baljeet Nagar. The said DD entry shows that the
information was logged at 12:15 noon.
4. Armed with a copy of aforenoted DD entry, SI
Jagdish PW-20, accompanied by Ct.Sunil PW-11 left for the
spot and on learning that the injured had been removed to
Ram Manohar Lohiya Hospital proceeded straight to the
hospital where SI Jagdish learnt that Kishan Lal had been
declared brought dead at 12:15 PM at the hospital, as
recorded in the MLC Ex.PW-16/A.
5. SI Jagdish met Krishna PW-5, the sister of Kishan Lal
whose statement Ex.PW-4/A was recorded by him. (We may
note that there is a consistent mismatch in the marking of the
exhibit numbers to the various proved documents, in that
many numbers pertained to the previous witness. For
example, the statement of Krishna PW-5 has been exhibited as
Ex.PW-4/A). On the basis of said statement FIR Ex.PW-18/E
was registered. As per DD No.11-A, Ex.PW-18/C, the FIR was
registered at 2:05 PM. As deposed to by DW-1 Mahesh
Chand, the Ahalmad attached to the court of Sh.Suraj Bhan,
Metropolitan Magistrate, Delhi, the endorsement Ex.DW-1/A on
the said FIR acknowledging receipt by Sh.V.K.Goyal functioning
as the Metropolitan Magistrate of the area on 14.01.1999 was
in the hand of Sh.V.K. Goyal and recorded the receipt of the
FIR by the learned Magistrate at 7:00 AM on 14.01.1999.
6. Since the deceased was brought dead, his body was
taken into possession by SI Jagdish. At that stage the
investigation was taken over by Insp.Rajinder Prasad PW-21,
who prepared the inquest papers Ex.PW-21/C on 14.01.1999
i.e. the next day of the incident and sent the body of the
deceased for post-mortem.
7. Dr. Ashok Jaiswal PW-12 conducted the post-
mortem on the body of the deceased on 14.01.1999 and noted
only one external injury as under:-
"An incise stale wound obliquely placed on left side
chest in front paraseternal region 3 rd 4th space 9 cm.
below medial angle of left clavical of size 2.7 cm. X 1
cm. with upper angle being acutely cut with margins
clean, cut and everted."
8. The injury aforenoted has been recorded in the
post-mortem report Ex.PW-12/A which also records that
exploring injury No.1, it was found cutting through the 3rd
and 4th intercostal space; traversing inward and upward the
weapon of offence pierced the right ventrical and came out
from the posterior surface. The wound pierced 10 cms.
deep. Needless to state, the death was instantaneous due
to haemorhhagic sock since the ventrical of the heart was
pierced. It is apparent that the weapon of offence was a
knife.
9. In her statement Ex.PW-4/A Krishna stated that
her daughter Usha used to be teased by appellant Surender
Kumar @ Dimpy who resided in the neighbourhood and that
at 12:00 Noon on 13.01.1999 her daughter Usha left for the
market but returned soon and informed that Surender @
Dimpy who was standing at the street corner had teased
her at which her brother Kishan Lal who had come to her
house to celebrate the festival of Lohri went out
accompanied by her sons Rajesh and Naresh. Even she
accompanied them. They saw Surender at the corner of the
street. She and her brother Kishan Lal requested Surender
not to tease Usha at which a verbal altercation ensued
between Surender and Kishan Lal. Hearing the altercation
Ramesh Chand father of Surender and Ved Rani, mother of
Surender came out of their house and both of them jointly
exhorted: "Let us teach them a lesson today." So
exhorting, Ramesh Chand took her brother Kishan Lal in a
bear hug from behind and even Ved Rani caught hold of the
hands of her brother from behind. Thereafter Ved Rani and
Ramesh Chand jointly exhorted: "Dimpy finish him off
today." Before they could even realize the gravity of the
situation, Surender @ Dimpy ran to his house and returned
with a knife and struck a blow on the chest of her brother
and while striking the blow said: "I will finish you off today."
On receiving the blow her brother fell down and they
remained stunned. Sunil resident of T-318/C, Baljeet Nagar
and one Virender resident of T-342 Baljeet Nagar were
standing there. They all attempted to apprehend Surender,
his father and his mother, but all fled.
10. It is apparent that the witnesses of the
prosecution were Usha PW-1, the young girl who was
allegedly teased by Surender Krishna PW-5, the mother of
Usha who claimed to be an eye-witness Naresh PW-2 and
Rajesh PW-3, the sons of Krishna as also Sunil Kumar PW-7
and Virender who was not examined by the prosecution. If
what was stated by Krishna to the police was correct, her
sons Naresh and Rajesh as also Sunil Kumar, besides
herself, had witnessed the incident.
11. Usha PW-1 deposed that she was residing with
her mother Krishna Devi and brothers Rajesh, Naresh and
Vikas at house bearing Municipal No.T-313/18, Baljeet
Nagar, Delhi. The appellants Surender, Ved Rani and
Ramesh Chand were residing at house bearing Municipal
No.T-313/17, Baljeet Nagar, Delhi. Accused Surender often
used to tease and misbehave with her. At about 11/11:30
AM on 13.1.1999 when her maternal uncle Kishan Lal had
come over to their house for the festival of „Lohri‟, her
mother asked her to bring some snacks from the market.
When she went outside her house accused Surender was
standing at the corner of the street and on seeing her he
passed some filthy remarks. She immediately, returned
home and told her uncle Kishan Lal, her mother and her
brothers about the act of accused Surender. On this, Kishan
Lal, her mother and her brothers went outside to talk to
Surender about said incident; she was asked to stay at
home. Later on she learnt that Surender had stabbed her
uncle Kishan Lal.
12. Smt.Krishna PW-5 deposed that she was working as
a safai karamchari in a Government School at S-Block, West
Patel Nagar. She has three sons and one daughter; namely,
Rajesh, Naresh, Vikas and Usha. The accused persons resided
in the house next to their house. On the day of „Lohri‟ when
her brother visited them, Usha went to the market to get some
eatables, however, Usha returned within some time and
informed them that accused Surender @Dimpy had
misbehaved with her. On hearing this, accompanied by Kishan
Lal @Bholey, her sons Rajesh and Naresh, she i.e. Smt.Krishna
went outside the house where accused Surender was standing
and asked him why he misbehaved with Usha. Kishan Lal told
Surender that he should be ashamed of his acts. As a result a
verbal duel ensued between Surender and Kishan Lal; and
both started abusing each other. Due to the noise, parents of
Surender i.e. accused Ramesh Chand and Ved Rani, reached
the spot; Ramesh Chand caught hold of Kishan Lal from behind
and Ved Rani caught hold of the hands of Kishan Lal. Ramesh
@Kukku exhorted Surender by stating „aaj inko sabak sikhatey
hain‟ and both Ved Rani and Ramesh then stated „aaj iska
kaam tamaam karte hain‟. Resultantly, Surender @Dimpy
inflicted knife blows on the left chest of her brother Kishan Lal
whereupon Kishan Lal fell on the ground. With the help of her
son Rajesh she took her brother to Wellingdon Hospital in a
three-wheeler scooter where her brother was declared dead.
After some time police arrived at the hospital and recorded her
statement.
13. On being cross-examined by the counsel for the
accused she stated that her brother was held by accused
Ramesh Chand @Kukku from his side and not from behind and
Ved Rani had held the hands of the deceased from back. That
in between when Surender went to his house to fetch a chhuri
she and her sons had tried to free her brother from the
clutches of Ramesh Chand. That Surender did not attempt to
give a second blow on the person of Kishan Lal.
14. Rajesh PW-3 deposed that the accused were his
neighbours. His sister Usha had told his mother that the
accused Surender used to often tease and abuse her. At
around 11.15/11.30 AM on 13.01.1999, when his uncle Kishan
Lal @ Bhola visited them for delivering customary articles for
the festival of „Lohri‟, Usha went to the market to bring some
eatables for Kishan Lal. Accused Surender who was standing
at the corner of the street abused Usha and as a result Usha
returned home within a few seconds. She informed them i.e.
Kishan Lal, Krishna, Naresh and Rajesh about the incident. His
uncle Kishan Lal asked them to stay at home while he would
go and persuade Surender not to misbehave with Usha. But
his mother, his brother Naresh and he followed Kishan Lal and
saw accused Surender standing at the corner of the street.
Kishan Lal asked Surender as to why he used to misbehave
with Usha who was like his sister. In the meantime accused
Ramesh Chand and Ved Rani, the parents of Surender,
reached said place and both caught hold of Kishan Lal from
behind. They exhorted Surender by stating "Dimpy Aaj Inka
Kam Tamam Kar De". Dimpy then stabbed Kishan Lal on his
chest, whereupon Kishan Lal fell on the ground and as his
mother, his brother and he attended to Kishan Lal, the three
accused managed to escape. Sunil and Vijender, who were
also present at the spot, immediately brought a TSR and
suggested that Kishan Lal be taken to the hospital. His mother
and he took Kishan Lal to Ram Manohar Lohiya Hospital where
the doctor declared Kishan Lal dead.
15. On being cross-examined by counsel for accused,
he stated that the incident took place outside house bearing
Municipal No.T-325 which is at the corner of the street.
Accused Ramesh Chand caught hold of Kishan Lal from the left
of his backside, by stretching his arms around Kishan Lal in
such a manner that the arms of Kishan Lal remained free. The
arms of Kishan Lal were towards the back and Ved Rani caught
hold of them from behind. Surender did not open the knife in
his presence, but was carrying an already opened knife. It was
like a vegetable cutting knife. The house of Rajesh i.e. house
bearing No.T-313/18 was about 100 feet away from the house
bearing No.T-325 i.e. outside where the incident took place.
16. Naresh PW-2 deposed that he resided with his
mother Krishna, brothers Rajesh and Vikas and sister Usha at
house bearing Municipal No.T-313/18. The accused were their
neighbours. Usha often complained to his mother about
accused Surender teasing her. At about 11.30 AM on
13.01.1999, when his maternal uncle Kishan Lal visited them
for „Lohri‟, his sister went to the market to bring some
eatables. She returned within five minutes and informed that
accused Surender @ Dimpy was standing at the corner of their
lane and was teasing her. On this, his uncle Kishan Lal went
outside the house and his mother, his two brothers and he
followed Kishan Lal. There was an exchange of hot words
between Kishan Lal and accused Surender and as a result of
the noise, parents of accused Surender i.e. accused Ramesh
Chand and Ved Rani also reached said spot. Ved Rani
exhorted Surender by stating "Aaj Inhe Sabak Sikha Hi Do";
Ramesh Chand also stated "Aaj Inka Kam Tamam Kar Do". As
a result accused Surender inflicted a blow with a sharp object
on the left side of the chest of Kishan Lal. The three accused;
namely, Surender, Ramesh Chand and Ved Rani fled from the
spot. Vijender and Sunil were standing at the corner of the
street. His maternal uncle was removed to the hospital in a
three-wheeler scooter by his mother and brother Rajesh; he
stayed at home. Later on he was informed on telephone that
his uncle had expired.
17. On being cross-examined by the counsel for State,
he clarified that while accused Ramesh Chand caught hold of
Kishan Lal by putting his hands around the waist of Kishan Lal
from behind; accused Ved Rani caught hold of the hands of
Kishan Lal from front. On being cross-examined by the
counsel for the accused, he stated that Kishan Lal was a little
taller than him and was of medium built. Since Ramesh Chand
had caught Kishan Lal only from the waist, the hands of Kishan
Lal remained free, which were then, caught hold off by Ved
Rani. At that time, Kishan Lal did not push Ved Rani. He was
not sure whether Ved Rani was about the height of the
shoulder of Kishan Lal. The three-wheeler scooter was brought
by Sunil and Vijender.
18. Sunil Kumar PW-7 deposed that at about
11.45/12.00 Noon on 13.01.1999, he was standing in the
street with Virender. He saw a quarrel taking place between
Kukku and Ved Rani on one side and the deceased and Krishan
on the other. Accused Surender @ Dimpy was also engaged in
said quarrel. Kukku stated "Aaj Inka Kaam Tamam Kar Do", on
which accused Dimpy rushed back to his house and brought a
knife with which he inflicted blows on the left side of the
deceased. Accused Kukku and Ved Rani both had caught the
deceased.
19. Some further evidence needs to be noted for the
reason Shri Dinesh Mathur, learned senior counsel for the
appellants, very strenuously urged that the FIR was ante timed
and the result was that Krishna PW-5 got enough time to spin
a fabricated version; though not expressly conceding, the
underlying submission of learned counsel was that since
Surender had been teasing Usha and single handedly was
responsible for the injury inflicted upon the deceased, Krishna
got a golden opportunity to ensnare even the parents of
Surender. Learned counsel urged that the investigating officer
had connived in a belated FIR being ante timed.
20. HC Pushpa PW-18 working as a duty officer at PS
Patel Nagar on 13.1.1999 from 9:00 AM to 5:00 PM deposed
that DD No.7A Ex.PW-18/A was registered by her at 12:15 PM
and that DD No.10A Ex.PW-18/B was registered by her at
12:47 PM when SI Jagdish Rai gave telephonic information
from RML Hospital that Krishan Lal had died at the hospital.
She further deposed that after registering DD No.10A she
informed Inspector Veer Singh the SHO of the police station
and that at 2:05 PM she received Krishna‟s statement Ex.PW-
4/A as also the endorsement Ex.PW-11/A sent by SI Jagdish Rai
to the police station through Const.Sunil and registered the FIR
in question in respect whereof she made DD entry No.11A
Ex.PW-18/C at 2:05 PM recording the commencement of the
registration of the FIR. She deposed that thereafter she had
also recorded DD No.12A Ex.PW-18/D at 2:50 PM recording
that the investigation had been assigned to Inspector Rajender
Prasad. She joined the investigation of the present case at
5:30 PM on 13.1.1999 and went to Peeragarhi crossing in
connection with the investigation.
21. During cross-examination HC Pushpa PW-18
deposed:-
"It is correct that till the time I had left for Pira Garhi
chowk, no case of any offence was registered in the
police station and the DD entries at that time pertain
to formalities of departure, arrival and a call from the
PCR"
22. Const.Sunil Kumar PW-11 inter alia deposed that he
took the rukka from the hospital at 12:30 noon and got the
case registered at PS Patel Nagar at 1:45 PM. Const. Satish
Kumar PW-14 deposed that he recorded his departure vide DD
No.12-A (Ex.PW-18/D) at 2:50 PM on 13.1.1999 when he went
to deliver a copy of the FIR to the Area Magistrate.
Const.Satish Kumar has not been subjected to any cross-
examination. Insp.Rajender Prasad PW-21 deposed that he
took over the investigation on 13.1.1999 immediately after the
FIR was registered and conducted the spot proceedings i.e. got
the scene of the offence photographed, lifted blood samples,
earth control, blood stained earth and prepared the rough site
plan.
23. DW-1 Mahesh Chand deposed that he was the
Ahlmad in the Court of Shri Suraj Bhan, MM, Delhi who was the
Successor Judge in the Court of Shri V.K.Goyal, MM, Delhi and
that he could identify the signatures and writing of Shri
V.K.Goyal and that the endorsement Ex.DW-1/A on the FIR in
question was in the handwriting of Shri V.K.Goyal. It may be
noted that the endorsement Ex.DW-1/A records that Shri
V.K.Goyal had received the FIR at 7:00 AM on 14.1.1999.
24. Stage to note the submission urged by learned
senior counsel for the appellants.
25. With reference to the cross-examination of HC
Pushpa PW-18, contents whereof have been noted in para 21
above, Shri Dinesh Mathur, learned senior counsel for the
appellants urged that the said admission completely
demolished the version of the prosecution that the FIR was
registered as claimed by HC Pushpa PW-18 at 2:05 PM on
13.1.1999. With reference to the inquest papers Ex.PW-21/C
admittedly prepared on 14.1.1999 by Inspector Rajender
Prasad PW-21 and drawing attention of the Court to Section
174 Cr.P.C. counsel urged that the requirement of law being to
commence the inquest proceedings immediately and in the
instant case it not having been so done, it was apparent that
the FIR was registered belatedly but ante timed. With
reference to DD Entry No.11A, Ex.PW-18/C purporting to bear
the time 2:05 PM counsel submitted that the said entry
pertained to the registration of the FIR, but contained no
contents, not even a brief summary of the FIR. Learned senior
counsel urged that it was apparent that the DD entry was a
mere ruse as the investigating officer had sent no rukka but
had impressed upon a junior officer to record the DD entry and
assigned the number in the register pertaining to the
registration of FIRs and keep available blank space in the said
register, to be filled in later on as per the convenience of the
investigating officer. Learned senior counsel relied upon the
decision reported as 1976 Chandigarh Law Reporter (Delhi) 41
Balwant Singh vs. State of Punjab to make good the point that
where the substance of the FIR registered under Section 154
Cr.P.C. is not entered in the daily diary and where the inquest
papers are not promptly sent containing the brief facts an
adverse inference of the contemporaneous record being ante
timed can be reasonably inferred. Counsel urged that in said
decision the twin taint of the DD entry pertaining to the
registration of the FIR being found to be sans a brief
summarization of the FIR and the inquest proceedings being
belated, an adverse finding of the FIR being ante timed was
drawn.
26. The second submission urged by learned senior
counsel was that the reason why everything has been ante
timed is that nobody knew what had happened and the
investigation officer gave time for the complaint to be made;
the reason for giving the time was to enable the family
members of the deceased to spin out a plausible version.
Elaborating the submission further, with reference to the
language of Krishna‟s statement Ex.PW-4/A, learned senior
counsel pointed out that the reading of the statement shows
the well thought of statement made by Krishna to falsely
implicate, if not all, at least the parents of Surender. Learned
senior counsel wondered as to how, at the spur of the
moment, two persons at two different points of time utter
identical words. Learned counsel highlighted that in the said
statement Krishna imputed two exhortations to Ramesh Chand
and Ved Rani, the parents of Surender, being: „let us teach
them a lesson today‟ and „Dimpy finish him off today‟.
Counsel urged that this evidence Krishna‟s statement being a
thought over statement and not a contemporaneous
statement.
27. An extended limb of the second submission urged
was that Krishna and her sons Naresh and Rajesh had a grouse
against Surender as they thought that Surender used to tease
Usha, the sister of Naresh and Rajesh and daughter of Krishna.
For said reason all three have deposed falsely to seek
vengeance against the entire family of Surender i.e. Surender
himself and his parents. Having a motive to falsely implicate
the appellants, learned senior counsel urged that the
testimony of the three witnesses is suspect, more so for the
reason the FIR has been ante timed.
28. The third submission urged was that there are
serious discrepancies with respect to the commission of the
offence and the role played by the accused in the testimony of
the witnesses of the prosecution. Learned senior counsel
pointed out that whereas Krishna, in her cross-examination,
stated that after Ramesh Chand and Ved Rani caught hold of
her brother Kishan Lal and exhorted their son, Surender went
home and returned with a knife and thereafter struck a blow in
the chest of Kishan Lal; to the same effect is the deposition of
Sunil Kumar PW-7. The other witnesses i.e. Naresh PW-2 and
Rajesh PW-3 have not deposed about Surender going to his
house and bringing a knife; as per them Surender when
Ramesh Chand and Ved Rani exhorted Surender: „Dimpy aaj
inka kaam tamam kar de‟ Surender stabbed Kishan Lal in the
chest and thereafter all of them fled. It was urged that it was
apparent that there was an attempt to bring on record a false
version by the witnesses of the prosecution, who were not the
eye-witnesses, but came out of their house, on hearing the
noise when somebody had already stabbed Kishan Lal.
29. The second limb of the third submission urged by
learned senior counsel was pertaining to the manner in which
Kishan Lal was allegedly caught hold of by Ved Rani and
Ramesh Chand. Learned senior counsel pointed out that
whereas in her statement Ex.PW-4/A made to the police,
Krishna PW-5 stated that Ramesh Chand took Kishan Lal in a
bear hug from behind (Peechhe Se Kohli Bharli) and Ved Rani
caught hold of the hands of Kishan Lal from behind; in her
testimony PW-5 deposed that Ramesh Chand caught Kishan
Lal from his side and not from behind. Learned senior counsel
further pointed out that each of the alleged witnesses to the
incident gave a slightly varied version of the manner in which
the accused Ramesh Chand and Ved Rani held the deceased.
While Naresh PW-2 stated that Ramesh Chand had caught the
deceased from behind by holding on to his waist and Ved Rani
had caught the hands of the deceased from the front; Rajesh
PW-3 deposed that Ramesh Chand caught deceased at his
waist from the left of his back side in a manner that the arms
of Kishan Lal remained free and were towards the back of
Kishan Lal and that Ved Rani caught hold of the arms of the
deceased from behind; Krishna PW-5 deposed that Ramesh
Chand held Kishan Lal from the side and Ved Rani caught the
hands of Kishan Lal from behind; but Sunil Kumar PW-7
deposed that Ved Rani had held the deceased from his back
and Ramesh Chand had simply caught hold of the deceased.
With reference to the above, learned counsel urged that it was
apparent that all the said witnesses were contriving and
straining themselves to attribute roles to Ramesh Chand and
Ved Rani and in so attempting had fumbled at places.
Pertaining to the discrepancy between the statement Ex.PW-
4/A of Krishna PW-5 and her deposition in court regarding the
manner, in which Ramesh Chand held Kishan Lal, learned
senior counsel urged that the same was deliberately induced
by Krishna PW-5 in order to make it appear more conceivable.
The reason being, if her first version, given in statement
Ex.PW-4/A, that Ramesh Chand had caught the deceased in a
bear hug from the back of Kishan Lal was true, there was no
room for Ved Rani to stand further behind and catch the hands
of the deceased; as a result it is just not possible that Ramesh
Chand and Ved Rani could have jointly held the deceased from
behind. For similar reasons, urged learned counsel, Rajesh
PW-3 also stated before the court that Ramesh Chand held
Kishan Lal from his left back side. That apart, it was further
urged that had the deceased been caught by Ramesh Chand
and Ved Rani as deposed by said witnesses, it was just not
possible for Surender to strike a blow in the chest of the
deceased.
30. The fourth submission urged by learned senior
counsel was, and which gets connected to the first and second
submission, is that the accused were three in number, if at all
they were present, from the side of the deceased the family
members present were four being the deceased himself, his
nephews Naresh and Rajesh, the sister of the deceased
Krishna. Besides, said four family members, two well wishers
being Sunil Kumar and Virender were also present. Learned
counsel urged that if this be so, it is just not possible that the
incident took place as claimed by the witnesses of the
prosecution.
31. The fifth submission urged by learned senior
counsel was with respect to the role of Ramesh Chand and Ved
Rani and their liability with the aid of Section 34 of the Penal
Code. With reference to the testimony of Usha PW-1 learned
counsel submitted that it was apparent that what led the
deceased, his nephews and his sister to go to the corner of the
street was the provocation of Surender teasing Usha. As
deposed to by all witnesses of the prosecution only Surender
was standing alone at the corner of the street and when the
deceased questioned him as to why he had teased Usha, a
verbal altercation ensued and the resultant noise which was
generated attracted the attention of Ramesh Chand and Ved
Rani to come out of their house and on seeing an ongoing
verbal quarrel between their son and the deceased the two
also joined in the verbal quarrel. The heat of the words turned
physical and when Surender‟s parents caught the deceased
with the intention of either pushing him or slapping him at the
most, in a flash Surender inflicted the knife blow. Counsel
urged that the theory propounded by Krishna PW-5 and Sunil
PW-7 that when Ramesh Chand and Ved Rani caught the
deceased and exhorted their son to attack him, Surender went
home and returned with a knife and then inflicted the blow is
simply not believable for the reason the other family members
of the deceased, in the mean time, who were present at the
spot as claimed by them, would have freed the deceased from
the clutches of Ramesh Chand and Ved Rani. Had they seen
Surender approach with a knife in his hand, enough time was
available to all of them to hurry up the act of freeing the
deceased and taking defensive action. With reference to the
version deposed to by the other three witnesses, counsel
urged that the question of imputing vicarious liability to Ved
Rani and Ramesh Chand does not arise. Thus, learned senior
counsel urged that Ved Rani and Ramesh Chand are entitled to
be acquitted.
32. Pertaining to Surender, learned counsel urged that
evidence established that a verbal altercation took place
before the act of stabbing; the verbal altercation was between
Surender and the deceased and in the heat of the moment
Surender gave a stab blow at the side of the chest but
unfortunately at a wrong angle. With reference to the post-
mortem report Ex.PW-12/A which noted the trajectory of the
wound, learned senior counsel pointed out that the knife
traversed inward and upward towards the right side, entry
wound being on the left side of the chest and unfortunately
pierced the ventricle of the heart. Counsel urged that the
intention to cause the death of the deceased could not be
attributed to Surender with reference to his act. Learned
counsel urged that at best a knowledge of a lesser degree
referable to the third limb of Section 299 IPC i.e. that the injury
caused was likely to cause death could be attributed to
Surender and thus his conviction could be sustained only for
the offence punishable under Section 304 Part-II IPC, for which
submission learned senior counsel cited the decisions reported
as 1983 SCC (Cri.) 459 Jagtar Singh vs. State of Punjab and
1983 SCC (Cri.) 805 Jawaharlal & Anr. vs. State of Punjab.
33. The basis of the first plea pertaining to the time
when the FIR was registered is obviously the result of HC
Pushpa PW-18 responding to a question during cross
examination, contents whereof have been noted in para 21
above. As recorded, Pushpa has apparently admitted that till
the time she left for Peera Garhi Chowk, no case of the offence
was registered at the police station. As deposed to by her she
went to Peera Garhi Chowk at 5:30 PM. DD No.11-A records
that the FIR was registered at 2:05 PM. Now, the manner in
which testimony of Pushpa has been recorded, makes it
apparent that everything has been ante-timed. But, the
question which needs to be further examined is whether there
is a possibility of a typographic error while recording the
testimony of HC Pushpa. Is it possible that the word „incorrect‟
got wrongly typed as „correct‟.
34. A perusal of the testimony of Pushpa shows that
she has positively stated that the 4 DD entries Ex.PW-18/A to
Ex.PW-18/D were recorded by her at 12:15 PM, 12:47 PM, 2:05
PM and 2:50 PM respectively. She has not stated that she
ante-timed the said DD entries.
35. A presumption has to be raised pertaining to the
correctness of official record and only upon cogent evidence
led can the presumption be rebutted.
36. Const.Sunil Kumar PW-11 has categorically deposed
that he left the hospital with the rukka at 12:30 noon and got
the FIR registered at 1:45 PM. Const.Satish has deposed that
he left the police station at 12:50 PM to deliver the FIR to the
Area Magistrate. Const.Satish has not been cross examined.
PW-21 has deposed that the investigation of the case was
handed over to him on 13.1.1999 immediately after the FIR
was registered. It is no doubt true that the endorsement
Ex.DW-1/A on the FIR shows that the Area Magistrate received
the same on 14.1.1999 at 7:00 AM, but we note that while
cross examining Satish PW-14, no question has been put to
him as to how come, having left the police station at 2:50 PM
on 13.1.1999 he delivered the FIR to the Area Magistrate on
14.1.1999. It is settled law that unless a witness is given an
opportunity to explain his conduct, no inference adverse can
be drawn on the basis of the conduct. The decision reported
as (2005) 9 SCC 298 Sunil Kumar vs. State of Rajasthan may
be conveniently referred.
37. It has to be kept in mind that 13.1.1999 was an
auspicious day as the festival of Lohri was to be celebrated on
said day. In Northern India, the festival of Lohri is celebrated
with gusto and friends and relatives visit each other and give
sweets. There may be a possibility that the learned Area
Magistrate was not in his house. Be that as it may, since
Const.Satish Kumar has not been questioned on the issue, we
hold that no adverse inference can be drawn qua the timing of
the FIR with reference to it be delivered the Area Magistrate
the next day. It is apparent that there is a typographic error
while recording the cross examination of HC Pushpa. We
conclude by holding that the FIR has been recorded at the time
as per DD No.11-A at 2:05 PM and there is no delay in
registration of the FIR. We hold that the registration of the FIR
has not been ante-timed.
38. We would wish to pen a paragraph as to how
suggestions and answers thereto have to be recorded when a
witness is under cross examination. This is the 9th case where
we have noted a typographic error where the word „incorrect‟
has been recorded as „correct‟. Due to the said error the very
meaning of the answer gets reversed. The problem can be
conveniently avoided by not recording the answer, if it is a
denial to the suggestion, by typing „it is incorrect to
suggest...‟. By resorting to this method of recording evidence
there is every chance of the word „incorrect‟ getting wrongly
typed as „correct‟. A better method could be to record the
answer „it is wrong to suggest...‟. If recorded with the use of
the word „wrong‟ vis-à-vis the word „incorrect‟, there would be
no occasion for an error to creep in. We hope that henceforth,
the learned Trial Judges would be more careful.
39. It is true that there has been a delay in conducting
the inquest proceedings. It is also true that DD No.11A only
records the time of commencement of registration of the FIR.
It does not record the substance of the FIR or the brief facts
pertaining thereto. But, in view of the decision reported as AIR
1998 SC 663 Babu Ram v. State (Delhi Administration), it is
apparent that the view taken in the decision reported as 1976
Chandigarh Law Reporter (Delhi) 41 Balwant Singh vs. State of
Punjab, stands over-ruled. The lapses relating to directory
procedural provision cannot vitiate the case of the prosecution
as other independent evidence established the veracity of the
case of the prosecution.
40. The second submission, including the extended
limb thereof; the third submission including the second limb of
the third submission and the forth submission pertain to the
conduct of Naresh, Rajesh, Krishna, Sunil Kumar and Virender
in not rescuing the deceased as also their testimony pertaining
to the exhortation given by Ved Rani and Ramesh Chand as
also the role played by the two in catching hold of the
deceased relate to an appreciation of the testimony of the eye-
witnesses i.e. PW-2, PW-3, PW-5 and PW-7.
41. On a reading of the testimonies of PW-2, PW-3, PW-
5 and PW-7, it is clear that when the deceased met appellant
Surender at the corner of the street, appellants Ramesh Chand
and Ved Rani were not present with him at that time. As
deposed to by PW-2, PW-3 and PW-5 who were accompanying
the deceased, a verbal altercation ensued between the
deceased and appellant Surender and the resultant noise
attracted the other two co-accused who were till then in their
house and upon hearing the quarrel came out. PW-7 who was
standing on the street also got attracted to the place where
the verbal altercation was taking place. Ramesh Chand and
Ved Rani took the side of their son and said something. What
they said would be dealt by us a little later. But what
happened then has two versions emanating from the
testimony of the witnesses of the prosecution. Whereas
Krishna PW-5 stated during cross-examination, which fact was
deposed to by Sunil PW-7 in his examination-in-chief, Ved Rani
and Ramesh Chand caught hold of the deceased and Surender
went to his house and returned with a knife in his hand. The
other witnesses did not say so. We may note at this stage
that as deposed to by Rajesh PW-3, the house of Surender was
at a distance of about 100 yards from the place where the
altercation took place. If Krishna and Sunil have deposed
truthfully, it is just not possible that Ved Rani and Ramesh
Chand continued to hold on to the deceased and PW-2, PW-3
and PW-5 who were his immediate relatives stood as mute
spectators and even Sunil and Virender continued to do so. At
least when Surender returned with a knife they would have
certainly reacted to save the deceased. It is apparent that
Krishna and Sunil have deposed an incorrect version of what
actually happened. The probability of what actually happened,
evidenced by a single blow on the person of the deceased, is
that the blow was sudden and swift.
42. Since the focus of all submissions centered on the
fact that PW-2, PW-3 and PW-5 got a golden opportunity to
rope in the family members of Surender, we look into the
testimony of the witnesses of the prosecution pertaining to
what was said and done by Ramesh Chand and Ved Rani.
43. Pertaining to what was said, as per Ved Rani‟s
statement Ex.PW-4/A, both of them jointly made two
exhortations: "let us teach them a lesson today" and "Dimpy
finish him off today". Ex-facie, it is difficult to believe that two
persons and that too twice over would use identical words
while making an exhortation. While deposing in Court Krishna
PW-5 deposed somewhat at a variance stating that first
exhortation was by Ramesh who said "Aaj inko sabak sikhatey
hain" and the second exhortation was joint: "Aaj iska kaam
tamam kartey hain". As per Naresh PW-2, Ved Rani exhorted
"Aaj inhe sabak sikha hi do". Ramesh Chand exhorted: "Aaj
inka kaam tamam kar do". Rajesh PW-3 deposed that Ramesh
Chand and Ved Rani gave only one exhortation: "Dimpy aaj
inka kaam tamam kar de". As per PW-7 the exhortation given
was only by Ramesh Chand who allegedly stated: "Aaj inka
kaam tamam kar dey".
44. It is apparent that the witnesses of the prosecution
are straining themselves to try and inculpate Ved Rani and
Ramesh Chand vis-à-vis what they said. The possibility of the
witnesses so doing to rope in Ved Rani and Ramesh Chand
cannot be ruled out. It is difficult to accept that two persons
would use identical phrases during a verbal duel. Ignoring the
different versions coming from the mouth of the witnesses of
the prosecution with respect to the language of the
exhortation and the number of sentences spoken for the
reason when many witnesses depose qua same facts it is quite
possible that each would express himself in different words,
but looking at the issue as a whole, keeping in view the fact
that even in the past Surender used to tease Usha, due to
enmity, there is a possibility that the prosecution witnesses
seized upon the opportunity to ensnare Ved Rani and Ramesh
Chand.
45. Dealing with the physical acts attributable to
Ramesh Chand and Ved Rani, it is obvious that as stated by
Krishna in her statement Ex.PW-4/A, it is not possible that the
deceased could be stabbed as claimed by her for the reason
she states that Ramesh Chand caught the deceased from
behind in a bear-hug and Ved Rani caught his hands from
behind. It is just not possible for Ved Rani to be standing
behind Ramesh Chand to be able to catch hold of the hands of
the deceased. Probably realizing the improbability of her
initial statement, Krishna deposed in Court at a slight variance.
To give space to Ved Rani, she deposed that Ramesh Chand
caught the deceased from the side and Ved Rani caught his
hands from the back. Likewise, Rajesh PW-3 also deposed on
the same lines. Sunil PW-7 simply stated that Ved Rani and
Ramesh Chand caught the deceased. Naresh PW-2 stated that
Ramesh Chand caught the deceased from the back and Ved
Rani caught the deceased from the front when he was
stabbed.
46. As regards the version of Naresh, it is apparent that
if Ved Rani had caught the deceased from the front, there was
no possibility of the stab blow being inflicted on his chest. His
version is obviously incorrect. Pertaining to the version of the
three other witnesses we certainly find traces of the three
contriving and straining their language to assign a role in the
assault to the parents of Surender.
47. Concluding on this issue we note that Surender
used to tease Usha in the past and did so on the date of the
incident. The resultant verbal duel attracted the attention of
his parents who came out of the house. A single stab blow
being inflicted by Surender shows that everything happened in
a flash before anyone could react. Just as PW-2, PW-3, PW-5,
PW-7 and Virender got no time to react to save the deceased,
likewise would have happened vis-à-vis Ved Rani and Ramesh
Chand i.e. when they were standing and participating in the
verbal duel, Surender did the offending act. Had the deceased
been caught hold of by Ved Rani and Ramesh it is not probable
that it took place in a flash of the moment. It had to be
preceded by the two coming into physical contact with the
deceased who certainly would have resisted the physical
contact resulting in some pushing around. This would have
certainly invited the intervention of PW-2, PW-3, PW-7 and
Virender, if not PW-5 who was a lady.
48. The evidence on record does not rule out the
possibility of the physical roles played by Ved Rani and
Ramesh Chand being over stated by the witnesses of the
prosecution.
49. What appears to have happened is that during the
verbal duel Surender stabbed the deceased and since his
parents were standing nearby, in all probability yelling and
shouting, the witnesses of the prosecution, three of whom
were close relatives of the deceased, attributed roles to them;
twisted the words spoken by the two and assigned a physical
role in the drama, not actually played by the two, i.e. made
embellishments to falsely implicate the parents of Surender.
50. That apart, on the issue of common intention
shared by the accused, it has to be noted that the starting
point of the episode was Surender being the antagonist on the
street who teased Usha who went home and complained
leading to the deceased, her two brothers and her mother
going to the street to settle scores with Surender, who still
remained the sole antagonist on the street. His parents joined
the scene at stage two when at stage one a verbal duel was
going on between Surender on the one hand and the
deceased, Rajesh, Naresh and Krishna on the other hand.
What did they know about the deceased carrying a knife with
him? There is no evidence that they knew. Even if they
caught hold of the deceased it cannot be said that they did so
sharing any common intention to murder the deceased or the
common intention to inflict a knife injury on the chest of the
deceased by Surender.
51. It is difficult, if not impossible, to procure direct
evidence of common intention and in most cases intention has
to be inferred from the act and the conduct of the accused and
the surrounding circumstances. In the decision reported as
Suresh Vs. State of U.P. 2001 (3) SCC 673 it was observed:-
"23. Thus to attract Section 34 IPC two postulates are
indispensable: (1) The criminal act (consisting of a
series of acts) should have been done, not by one
person, but more than one person. (2) Doing of every
such individual act cumulatively resulting in the
commission of criminal offence should have been in
furtherance of the common intention of all such
persons.
24. Looking at the first postulate pointed out above,
the accused who is to be fastened with liability on the
strength of Section 34 IPC should have done some act
which has nexus with the offence. Such an act need
not be very substantial, it is enough that the act is
only for guarding the scene for facilitating the crime.
The act need not necessarily be overt, even if it is
only a covert act it is enough, provided such a covert
act is proved to have been done by the co-accused in
furtherance of the common intention. Even an
omission can, in certain circumstances, amount to an
act. This is the purport of Section 32 IPC. So the act
mentioned in Section 34 IPC need not be an overt act,
even an illegal omission to do a certain act in a
certain situation can amount to an act, e.g. a co-
accused, standing near the victim face to face saw an
armed assailant nearing the victim from behind with a
weapon to inflict a blow. The co-accused, who could
have alerted the victim to move away to escape from
the onslaught deliberately refrained from doing so
with the idea that the blow should fall on the victim.
Such omission can also be termed as an act in a given
situation. Hence an act, whether overt or covert, is
indispensable to be done by a co-accused to be
fastened with the liability under the section. But if no
such act is done by a person, even if he has common
intention with the others for the accomplishment of
the crime, Section 34 IPC cannot be invoked for
convicting that person. In other words, the accused
who only keeps the common intention in his mind, but
does not do any act at the scene, cannot be convicted
with the aid of Section 34 IPC.
25. There may be other provisions in the IPC like
Section 120-B or Section 109 which could then be
invoked to catch such non-participating accused. Thus
participation in the crime in furtherance of the common
intention is a sine qua non for Section 34 IPC.
Exhortation to other accused, even guarding the scene
etc. would amount to participation. Of course, when the
allegation against an accused is that he participated in
the crime by oral exhortation or by guarding the scene
the court has to evaluate the evidence very carefully
for deciding whether that person had really done any
such act." (Emphasis Supplied)
52. We accordingly hold, agreeing with the fifth
contention urged that the evidence on record does not bring
out the sharing of any common intention by Ramesh Chand
and Ved Rani and hence we hold that their conviction with the
aid of Section 34 is not warranted.
53. That leaves us with the last submission pertaining
to the act of Surender and the offence relatable thereto.
54. No doubt, from the mere fact that only one stab
wound has been inflicted no inference of the offence not being
murder can be drawn. There is enough case law on the point
that even a single stab injury can attract the offence of
murder. The problem arises not in the domain of law or legal
principles but in the domain of evidence.
55. When everything happens all of a sudden it
becomes difficult to ascertain as to whether the single injury
was intended to be inflicted on the part of the body where the
injury has actually been inflicted as a matter of fact. The
problem gets aggravated when the accused and the victim
had a chance meeting. In the instant case, there is no
evidence that Surender knew that the deceased would be
coming to meet his sister i.e. Krishna PW-5. He never
expected to be confronted by the relatives of Usha whom he
had teased a few minutes prior to the incident. Thus, the
meeting of the deceased with Surender was a chance meeting
and therefore it cannot be said that Surender was standing
with any premeditation in his mind qua the deceased.
56. But the fact that Surender used the knife obviously
shows that he intended to cause an injury on the person of the
deceased. He knew that the weapon which he was yielding
was a knife. He struck the blow on the left side of the chest;
he struck it in a manner that the knife pierced inward and
upward. The place where he struck the knife is a vital part of
the body and the manner in which he struck the knife i.e.
making the knife travel inward and upward shows that the
path of the knife was towards the heart. The offence
committed by Surender attracts the offence punishable under
Section 304 Part-I IPC. We take sustenance from the decision
reported as AIR 1975 SC 179 Hardev Singh & Anr. vs. State of
Punjab.
57. The appeal accordingly stands disposed of
acquitting appellants Ramesh Chand and Ved Rani of the
offence punishable under Section 302/34 IPC. Both of them
are on bail. Their bail bond and surety bonds are discharged.
Insofar the appeal relates to appellant Surender, the same is
partially allowed. Surender is acquitted of the charge
punishable under Section 302 IPC but is convicted for having
committed an offence punishable under Section 304 Part-I IPC,
for which offence we sentence him to undergo rigorous
imprisonment for a period of ten years. Appellant Surender is
on bail. His nominal roll shows that as on 12.3.2004 he had
undergone a sentence of five years two months and twenty
five days. He was admitted to bail vide order dated 26.3.2004.
It is apparent that Surender has to undergo further sentence.
He shall do so. Needless to state, Surender would be entitled
to the benefit of Section 428 Cr.P.C.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
NOVEMBER 19, 2009
Dharmender/mm
