Kishori S/O Babu Lal vs State
2009 Latest Caselaw 4385 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Decision : 29th October, 2009

+                                CRL.A. 19/2008

       KISHORI S/O BABU LAL                               ..... Appellant
                      Through:              Mr.Sumeet Verma, Advocate.
                 versus
       THE STATE                                          ..... Respondent
                      Through:              Mr.M.N. Dudeja, A.P.P.

+                                CRL.A. 187/2008

       RAKESH                                              ..... Appellant
                                 Through:   Mr.Sumeet Verma, Advocate.

                       versus
       STATE                                               ..... Respondent
                                 Through:   Mr.M.N. Dudeja, 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?

     3. Whether the judgment should be reported in the
        Digest?

PRADEEP NANDRAJOG, J. (Oral)

1. Vide impugned judgment and order dated 18.9.2007

appellants Kishori and Rakesh have been convicted for the

offence punishable under Section 302/34 IPC. It has been held

that the testimony of Meena PW-5 and Kishan Swarup PW-6

establishes that appellant Kishori caught hold of Satish and

exhorted 'Finish the bastard' whereupon appellant Rakesh

inflicted two knife blows, one each on the neck and the chest of

Satish who succumbed to the injuries. Co-accused Virender

Kumar and Jaiprakash have been acquitted. Charge for the

offence punishable under Section 308/34 IPC against all accused

has been held to be not established.

2. It may be noted that the charge for the offence

punishable under Section 308 IPC pertained to the alleged

assault on Jai Kumar PW-1, who admittedly sustained injuries at

the same time and at the same place where Satish received

injuries, but during trial Jai Kumar turned hostile and stated that

he did not know as to who assaulted him.

3. Meena PW-5 is the sister of the deceased. Kishan

Swarup PW-6 is the father of the deceased. As deposed to by

both of them they were present in their house and heard noise

at around 9:45 PM on 6.1.2003. The noise led them to go

outside their house and they saw Satish surrounded by the

accused. Kishori was seen holding Satish and he said 'Kill the

bastard' at which Chhotu @Rakesh stabbed him i.e. Satish with

a knife.

4. The cross-examination of the two witnesses suggests

that the defence projected was that there was a blackout in the

area due to which the children were on the street. There was

excessive noise on the street and thus Meena and her father

could not have heard any quarrel and in any case could not

have seen who stabbed Satish because there was darkness all

around and Meena and her father admitted that the place

wherefrom they saw Satish being stabbed was about 25 to 30

paces from the spot where they were standing.

5. Learned counsel for the appellants concedes, with

reference to the testimony of Praveen PW-7, that the same

establishes presence of Meena and her father at the spot and

there being no blackout in the area.

6. We note that it is not in dispute that Praveen Kumar

PW-7, took the deceased to the hospital on a scooter and

handed over his i.e. Praveen Kumar's blood stained shirt to the

police, which shirt was detected with human blood of the same

group as that of the deceased. We note that the testimony of

Praveen Kumar that when he came out of his house he saw

Meena PW-5 and Kishan Swarup PW-6 at the spot with Satish

lying on the street and that the area was well lit has not been

questioned by cross-examining Praveen Kumar.

7. Undisputably, Satish was stabbed on the public street

at a distance of about 25 - 30 paces from the house where he

lived at around 9:30 PM on 6.1.2003 and thus the presence of

his father and sister as claimed by them is not unlikely. Both of

them are natural witnesses to the incident.

8. We thus hold, that the testimony of Meena and

Kishan Swarup establishes that Kishori caught the deceased and

Rakesh inflicted two knife blows on him.

9. We note that Meena and Kishan Swarup alleged no

role played by the other two co-accused with respect to the

injuries caused to the deceased and hence the two have been

acquitted. Their acquittal has attained finality.

10. But, the learned Trial Judge has lost sight of a very

important fact. Even appellant Kishori evidenced by his MLC

Ex.PW-22/C received injuries. He suffered a lacerated wound on

the scalp and had swelling and tenderness in the left leg. As per

the testimony of SI Bhopal Singh PW-26 and the testimony of

Insp. Balwan Singh PW-29, Kishori was found admitted at Babu

Jagjiwan Ram Memorial Hospital as he had received injuries.

11. As deposed to by Jai Kumar PW-1, he was present in

his house and rushed out on hearing noise. He saw a quarrel

going on and in the hustle and bustle claims that somebody

struck him.

12. The PCR form Ex.PW-3/A records information that the

caller had informed of a quarrel going on involving Satish and

Kishori.

13. Meena and her father had tried to explain the injury

on Kishori by stating that the public caught Kishori and gave him

a beating. But, neither PW-26 nor PW-29, the two officers who

reached the spot where the offence took place on receiving

information about the quarrel have stated that anyone from the

public handed over Kishori to them and noticing that even

Kishori was injured, they took him, or sent him under custody to

the hospital. On the contrary, both of them have stated that

they found Kishori admitted at the hospital and deputed a guard

to keep a watch on him. Undisputably, Kishori has been

arrested from the hospital. There is obviously an embellishment

made by Meena and her father.

14. Thus, the contention urged by learned counsel for the

appellants that there was a quarrel, origin whereof has

remained shrouded in darkness, has to be accepted. In any

case, the benefit of the doubt relatable to the origin of the

quarrel has to be given to the accused.

15. With reference to the exhortation, it may be noted

that the testimony of the witnesses in vernacular is translated

and recorded in English. Thus, the actual words used get

mutated. The exhortation: 'maar harami ko', which may mean

'beat the bastard' may get translated as 'kill the bastard'. It all

depends upon how the translator perceives the issue.

16. To ascertain as to what was the exhortation referred

to by the two witnesses in their statement recorded by the

police under Section 161 Cr.P.C., we have seen the statement

Ex.PW-5/DA made by Meena. The exhortation referred to by her

and as recorded in vernacular reads: 'Chhotu maar saale ko

chaaku, bach kar nahi jaana chhahiye'. We have also seen the

statement of Kishan Swarup, which has not been exhibited

probably for the reason Kishan Swarup was not confronted with

the same. No such exhortation is to be found in his statement.

Thus, there is all the more reason to read the exhortation to

mean that the deceased should be hit.

17. Be that as it may, there is admittedly a quarrel which

took place. The origin of the quarrel is not known. Thus, the

accused i.e. the appellants are entitled to the benefit of

Exception-IV to Section 300 IPC.

18. Thus, the acts of the appellants constitute an offence

punishable under Section 304 Part-I/34 IPC.

19. Noting that the appellants have no previous criminal

record and were aged 21 years (Kishori) and 23 years (Rakesh),

we are of the opinion that the ends of justice would be met if

they are sentenced to undergo rigorous imprisonment for 10

years.

20. The appeals stand disposed of by modifying the

conviction of the appellants from the offence punishable under

Section 302/34 IPC to the offence punishable under Section 304

Part-I/34 IPC, for which offence we sentence the appellants to

undergo rigorous imprisonment for 10 years. Needless to state,

the appellants are entitled to the benefit of Section 428 Cr.P.C.

21. Since the appellants are still in jail, copy of this order

be sent to Superintendent, Central Jail, Tihar for necessary

action and being supplied to the appellants.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

October 29, 2009 Dharmender