Anil Kumar vs State
2009 Latest Caselaw 4773 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                    Judgment delivered on: November 23, 2009


+      Crl.A No.258/1996

       ANIL KUMAR                                            ..... Appellant
                                    Through:     Mr.Deepak Vohra, Amicus
                                                 Curiae/Advocate.
                       Versus

       STATE                                                 ..... Respondent

                                    Through:     Mr.Pawan Sharma, APP.


                                    AND


+      Crl.A No.67/1997

       SUNIL KUMAR                                           ..... Appellant
                                    Through:     Mr.Deepak Vohra, Amicus
                                                 Curiae/Advocate.
                       Versus


       STATE                                                 ..... Respondent
                                    Through:     Mr.Pawan Sharma, APP.



       CORAM:
       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       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 ?


SANJAY KISHAN KAUL, J.(ORAL)

1. The appellants in these appeals are aggrieved by the impugned judgment dated

24.9.1996 and the order of sentence of even date convicting the appellants for the

murder of Ram Kumar (deceased) while acquitting the third accused Bhim Sain for

the offence under Sections 302/449/506 read with Section 34 IPC imposing a

sentence of life imprisonment apart from fine.

2. The incident is stated to have occurred in the night intervening 9th and 10th

February 1992 in Jhuggi No.F-208, Raghubir Nagar where the deceased and his

brother Munna Kumar Yadav, PW7 were sleeping. The said PW7 went to PS Rajouri

Garden along with a neighbour Sher Singh, PW5 to lodge a complaint to the effect

that there were rumours in the jhuggies that the deceased had illicit relations with

Bimla, the mother of the appellants, because of which the appellants nursed a grudge

towards the deceased. At about 00.30 hours, the appellants along with Bhim Sain

came to the jhuggi and dared the deceased to come out while hurling abuses at him.

The deceased wanted to run away but in the mean time, the appellants are stated to

have pushed the door open with their legs while Bhim Sain unsuccessfully tried to

pull the deceased out of the jhuggi. The appellants being both armed with knives

entered the jhuggi and inflicted several stab wounds on the deceased. The deceased is

stated to have suffered deep stab wounds in his chest and neck upon which he fell

down. The appellants threatened PW7 that if he dared to raise alarm, he would also

be killed. The deceased died on the spot. PW7 remained silent due to fear and after

about 10 minutes when the appellants and Bhim Sain left, he came out and by that

time several persons had gathered outside the jhuggi. Thereafter, accompanied by

Sher Singh, he went to the police station and lodged the complaint, which was

registered as Ex.PW9/A.

3. The investigation was marked to SI Gurcharan Singh, PW15 who visited the

spot and prepared the site plan. Photographs were taken and blood stained clothes

and samples were seized. The post mortem was carried out by Dr.L.K. Barua, PW14,

who found two incised wounds, one just below the right angle of mandible and

another on the right side front of the chest. The doctor opined that each of these

wounds were individually sufficient to cause death in the ordinary course of nature.

The appellants were arrested on 13.2.1992. On interrogation, the weapon of offence

being the "Churri" Ex.PX was recovered with its blade buried in the earth from the

park at the instance of appellant Anil. The blood stained shirt of the said accused

Anil was also taken into possession. The opinion of Dr.L.K. Barua is that the

inflicted injuries could have been caused by the "Churri" Ex.PX. The case property

was subsequently sent to CFSL and on serological analysis, human blood group „A‟

(which is the blood group of the deceased) is stated to have been found both on the

knife and the shirt recovered from Anil Kumar. The opinion of Shri C.K. Jain, Senior

Scientific Officer, as per his report Ex.PW13/D is that the cut marks on the shirt of

the deceased have been caused by the weapon having one edge sharp and other edge

blunt.

4. The prosecution examined 16 witnesses to prove its case but three testimonies

are material for consideration apart from the testimony of the doctor. PW5 Sher

Singh, who had accompanied PW7 to record the complaint, turned hostile. Though

he stated that PW7 had informed him about the murder of the deceased, but he denied

that suggestion of learned APP that PW7 named the appellants and Bhim Sain as the

persons who killed his brother. Hari Chand, PW6, security guard near Nehru Stadium

also turned hostile in the same manner deposing almost similarly. Above said

witnesses also denied any relationship between the deceased and Bimla. Thus, the

only eye witness account available was of PW7, which has been the basis of

conviction in terms of the impugned judgment.

5. It is material to note that even Munna Kumar Yadav, PW7 turned hostile to the

extent that he absolved Bhim Sain of any role and even denied the presence of Bhim

Sain. On being confronted with his complaint, he went as far as to suggest that the IO

had threatened him and forcibly implicated Bhim Sain. The said witness thus casts a

doubt on the investigation while deposing before the Court and absolving Bhim Sain

which resulted in his acquittal. The matter does not rest at this. The Trial Court

noticed the variance between the testimony of PW7 vis-à-vis the FIR Ex.PW9/A and

has detailed the same as under :-

"I According to the FIR Ex.PW7/A both accused Anil and Sunil were armed with Knives and both had inflicted stab wounds. At the stage of evidence however, PW 7 Munna Kumar states that only accused Sunil had stabbed Ram Kumar @ Ramu while accused Anil facilitated stabbing by holding Ramu in his grip.

II The weapon of offence mentioned in the FIR is knives, whereas at the stage of evidence Munna Kumar Yadav says that the fatal injury was caused by one Gupti or Kleech.

III The allegation in the FIR is that accused Bhim Sain had tried to pull out Ramu from Jhuggi. PW 7 Munna Kumar Yadav, however, states that accused Bhim Sain was not present at all.

IV The story given in the FIR is that the accused persons had pushed the door with their legs and there upon deceased Ramu opened the door. At the stage of evidence Munna Kumar Yadav makes a departure by saying that the accused had broken the door.

V The locus of injuries at the two stages is also different. In the FIR Munna Kumar Yadav states that the injuries ware inflicted on chest and neck but in the court he says that the injuries were on the stomach and neck."

6. Despite the aforesaid, the Trial Court found that the testimony of PW7

implicating the appellants could be segregated which provided the basis of conviction.

A great weightage has been given to the fact that PW7 explained that his complaint

was not correctly recorded by the police and when he asserted that Bhim Sain was

innocent, one policeman abused him.

7. The incident occurred at 00.30 hours and the complaint was made at 1.20 a.m.

There is nothing on record to show that the police had any animosity towards Bhim

Sain so as to implicate him falsely.

8. Learned APP in fact, fairly states that the prosecution would stand by what

was recorded by the IO in the complaint insofar as it contradicts the testimony of

PW7. If this is the position, then the testimony of PW7 becomes extremely shaky

even regarding the remaining aspect of the role of the appellants.

9. The Trial Court in Para 19 has noticed that the presence of PW7 at the spot of

occurrence cannot be doubted and both PW6 and PW5, even though hostile,

corroborated PW7 coming upto them and informing them of the murder of the

deceased. We have no quarrel with this proposition. The question, however, remains

as to whether PW7 actually saw who had killed the deceased or whether his suspicion

got translated into allegation against the appellants.

10. The Trial Court has concluded that there was harmony between the testimony

of Munna Kumar Yadav, PW7 and the medical evidence i.e. the post mortem report

Ex.PW14/A. The basis of the said conclusion was that PW7 had stated in the Court

that "Gupti" was used by the assailants, which, as per observation of the learned Trial

Court, is a double edged weapon. The learned Trial Court has analysed that on

consideration of the nature of injuries found on the dead body, it is apparent that

those injuries could be caused by a double edged weapon which was possible with a

"Gupti". The above theory propounded by the learned Trial Court in Para 20 of the

impugned judgment is belied by the CFSL report Ex.PW13/D. On perusal of the

CFSL report, it transpires that Shri C.K. Jain, Senior Scientific Officer, after

laboratory examination of the shirt of the deceased which he was wearing at the time

of the occurrence, has opined that the cut mark Q2 on the shirt could have been

caused by a weapon having one edge sharp and other edge blunt like the knife Ex.P7

produced in the Court. What appears to have been weighed with the Trial Court is

apparent from Para 21 of the impugned judgment that since a person had lost his life,

there must be someone responsible for his death and the same was witnessed by the

brother, PW7. It is the job of the prosecution to prove beyond reasonable doubt that

the accused had caused death and it would not be for the Court to question that if the

accused did not cause injury then who would have caused the injury?

11. The legal principle is settled that multiple witnesses are not required to prove

the case of the prosecution. The conviction can be based upon the testimony of a

single witness, provided it is found to be trustworthy. In the instant case of sole

witness, PW7 Munna Kumar Yadav has given a version before the Court which is at

variance with the FIR recorded on his complaint on various material aspects. The

witnesses, PW5 Sher Singh and PW6 Hari Chand, who were examined by the

prosecution to prove the motive and also to prove that PW7, immediately after the

occurrence, went to the jhuggi of PW5 and told him that the appellants and Bhim Sain

had killed the deceased by stabbing him, have also turned hostile on the above

aspects. Thus, we do not consider it safe to convict the appellants on the basis of the

sole testimony of such an ocular witness, whose version is at variance on material

aspects with the allegation made in the complaint. Even the version of PW7 is not

substantiated by the other witnesses. The benefit of doubt in such a case would

clearly go to the appellants.

12. The appeals are accordingly allowed and the impugned judgment of conviction

and order on sentence are set aside. The appellants are accordingly acquitted giving

the benefit of doubt. The appellants be released forthwith unless wanted in some

other case.

13. A copy of the order be forwarded expeditiously to Superintendent, Tihar Jail.

SANJAY KISHAN KAUL, J.

NOVEMBER 23, 2009                                 AJIT BHARIHOKE, J.
gm