Daya Ram & Anr. vs The State
2009 Latest Caselaw 4418 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                        Judgment reserved on : October 26, 2009
                        Judgment delivered on : October 30, 2009



+      CRIMINAL APPEAL NO.68/1996


       DAYA RAM & ANR.                         ..... Appellants
                              Through:   Mr.K.B. Andley, Sr. Advocate
                                         with Mr.Y.N. Singh, Advocate.

                   Versus

       THE 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 ?


AJIT BHARIHOKE, J.

1. Daya Ram and Suresh Chand having been convicted in terms of

impugned judgment dated 20.3.1996 in Sessions Case No.9/92, FIR

No.312/91, P.S. Okhla Industrial Area under Section 302 IPC read with

Section 34 IPC for having committed murder of one Mahesh and under

Section 307 IPC read with Section 34 IPC for attempting to commit

murder of PW2 Parmod Kumar and sentenced in terms of a separate

order on sentence dated 20.3.1996 on both counts, have preferred the

instant appeal challenging the impugned judgment and consequent

order on sentence.

2. Briefly stated, the case of the prosecution is that on the night

intervening 11-12th October 1991 at about 2:10 a.m., lady Constable

Janesh from Police Control Room informed the Duty Officer, Police

Station Okhla Industrial Area that a person had been stabbed with a

knife in House No.445, Gali No.15, Tughlakabad Ext., New Delhi which

was recorded as DD No.66-B (Ex.PW12/B). The Duty Officer conveyed

the said information to S.I. Chinta Singh, who was on night patrol duty

on wireless and also sent a police vehicle to Inspector Raghbir Singh for

taking him to the spot of occurrence. S.I. Chinta Singh along with the

other staff reached at the spot. Inspector Raghbir Singh PW24 also

reached at the spot where he found that the injured persons had

already been removed to the hospital by a PCR van. Inspector Raghbir

Singh left S.I. Chinta Singh at the spot and went to AIIMS along with ASI

Mahender Singh and other police staff. He obtained the MLC of the

deceased Mahesh and injured Parmod Kumar. Mahesh was declared

brought dead on his MLC and Parmod Kumar, injured was declared fit

for making statement. The Investigating Officer recorded the

statement of the injured Parmod Kumar Ex.PW2/A and sent it to the

police station after endorsing it for the registration of FIR. On the basis

of said statement, formal FIR No.312/91 was recorded at the police

station.

3. PW2 Parmod Kumar in his statement EX.PW2/A stated that his

brother Munesh was resident of House no.445, Gali No.15, Tughlakabad

Extension and his friend Rajender was also living with him in the

aforesaid house with his family. He further stated that on the fateful

night when he returned back from duty, his brother Mahesh (deceased)

told him that neighbours of their brother Munesh had fought with him.

On this, he along with deceased Mahesh proceeded to the house of

Munesh at Tughlakabad to find out about his welfare. On reaching

there, they found that Munesh and his friend Rajender were not at

home. So they inquired about the quarrel from the wives of Munesh

and Rajender. In the meanwhile, at about 2.00 a.m. in the night, the

neighbours of Munesh, Daya Ram and his brother Suresh came inside

the house. Daya Ram was carrying a knife in his hand. On entering

the house, Suresh caught hold of the deceased Mahesh and exhorted

Daya Ram by uttering the words 'Aaj Is Jhagrae Ko Khatam Hi Kar

Detein Hain, Maar Sale Ko Chaku'. Reacting to the exhortation,

appellant Daya Ram stabbed Mahesh with a knife and when

he(Parmod) tried to catch hold of Daya Ram, Suresh let go of Mahesh

and apprehended him and appellant Daya Ram stabbed him in his

back. When his sister-in-law Guddo and wife of Rajender raised alarm,

both the appellants ran away. Police reached after some time and took

them to the hospital.

4. The Investigating Officer prepared rough site plan and he got the

scene of crime photographed. He arranged for sending of dead body

for post mortem examination. Both the accused were arrested and on

interrogation, they made disclosure statements. Accused Daya Ram,

pursuant to the disclosure statement got the weapon of offence i.e.

Knife Ex.P1 recovered from the house of his brother Mahender Singh.

Investigation revealed that prior to the occurrence in question an

altercation between Munesh, brother of the injured Parmod Kumar and

Mahender Singh, brother of the appellants had taken place in which

Mahender Singh had sustained injuries and he was medically

examined at AIIMS.

5. Learned Additional Sessions Judge framed charges under

Sections 302 read with Section 34 IPC and 307 IPC read with Section 34

IPC against both the appellants to which they pleaded not guilty and

claimed to be tried.

6. In order to bring home the guilt of the appellants, prosecution

examined 24 witnesses. The case of the prosecution, however is

mainly based upon the eye-witness account of the occurrence narrated

by PW1 Savitri Devi, wife of Rajender, injured PW2 Parmod Kumar and

PW4 Sushma @ Guddo, wife of Munesh. PW8 Munesh, brother of the

deceased deposed that earlier in the day he had an altercation with

Mahender, brother of the appellants. PW15, Head Constable Babu Din

had taken Mahender Singh who met him in injured condition, to AIIMS

on 11.10.1991. He also proved MLC Ex.PW19/A. PW23 S.I. Chinta

Singh and PW24 Inspector Raghbir Singh are the police officers who

conducted investigation in this case. Appellants were examined under

Section 313 Cr.P.C. and their statements were recorded where they

took a defence of complete denial of having played any role in the

occurrence. According to them, they have been falsely implicated by

the complainant party because of their enmity with their real brother

Mahender Singh.

7. The learned Additional Sessions Judge relying upon the testimony

of the eye-witnesses and the evidence of recovery of knife Ex.P1 at the

instance of the appellant Daya Ram, which as per CFSL report

Ex.PW24/F had stains of human blood group 'A' which match with the

blood group of the deceased Mahesh. Relying upon this, he found both

the appellants guilty of the charge under Section 302 IPC read with

Section 34 IPC as also charge under Section 307 read with Section 34

IPC.

8. Learned Senior Counsel for the appellants has submitted that the

learned Additional Sessions Judge has grossly erred in the appreciation

of evidence. He has argued that the prosecution case is based mainly

on the eye witness account given by PW1 Savitri Devi, PW2 Parmod

Kumar and PW4 Sushma @ Guddo. He has submitted that none of the

aforesaid witnesses is reliable and their testimony do not inspire

confidence.

9. Regarding PW1, Savitri Devi, he has submitted that she is not a

reliable witness, firstly because she could not tell how many stab blows

were given by the appellant Daya Ram and in her examination-in-chief,

she could not identify the weapon of offence Ex.P-1 and instead she

categorically stated that it was not the knife which was used for

stabbing. He has further submitted that besides the above infirmities,

she has made improvements upon her earlier statement Ex.PW1/DA

made to the Police under Section 161 Cr.P.C. during investigation.

10. The case of the prosecution is that the occurrence took place in

the wee hours of the night at around 2:00 AM in House No.445, Gali

No.15, Tuglakabad Extension, New Delhi. As per the testimony of PW2

Parmod Kumar, his brother Munesh used to reside in the said house

along with his friend Rajender Singh and his family. PW1 Savitri Devi is

the wife of Rajender Singh, therefore, her presence at the house in wee

hours of the night cannot be doubted. Merely because she could not

identify the knife Ex.P-1 which was used in an occurrence which may

not have taken more than few minutes, the credibility of her version

cannot be doubted. So far as the improvements over the previous

statement made to the Police is concerned, those are not in respect of

the material aspects of the case. Therefore, in our considered view,

much importance cannot be given to those inconsequential

improvements which resulted in confronting of the witness with her

statement Ex.PW1/DA. Another challenge to the testimony of PW1

Savitri Devi is that she could not tell how many stab wounds were

given by the appellant in a split of second action in which two persons

were stabbed. It is not expected of a witness to keep an account of the

stab wounds. Therefore, this infirmity also, in our view, is

inconsequential.

11. Regarding PW4 Sushma @ Guddo W/o Munesh Kumar also, the

stand of the appellant is that her testimony is not reliable because of

several reasons. Firstly, she has made improvements, in her testimony

in the court, over her earlier statement Ex.PW4/DA recorded by the

Police under Section 161 Cr.P.C. Secondly, as per the prosecution,

though the site plan was prepared at her instance, she was not in a

position to explain the site plan during her cross-examination. Thirdly,

she was not in a position to tell who called the Police to the spot.

Fourthly, she did not fully support the case of prosecution in her

examination-in-chief and she had to be cross-examined by the

learned A.P.P.

12. From the record, it is obvious that PW4 Sushma @ Guddo was

examined after a lapse of almost one year from the date of occurrence.

Therefore, it is not unnatural that she had forgotten some facts for

which the APP had to seek permission to cross-examine her with a view

to set the record straight. So far as the improvements made in the

statement in the court viz-a-viz the earlier statement is concerned, we

find that the improvements are not so material to suspect the

correctness of her version and those can be attributed to lapse of

memory. The argument regarding the witness not being able to read

and explain the site plan, to our mind, is misconceived because the site

plan admittedly was prepared by the Police on the pointing out by the

witness. This, however, does not mean that a witness who is not

equipped to read and understand a site plan cannot point out the

specific places or locations of appellant or victim etc. Thus, we find no

reason to doubt the credibility of PW4 Sushma @ Guddo, whose

presence at the spot in the wee hours of night in her house is natural.

13. Coming to Parmod Kumar, PW2. It is argued that he is not a

reliable witness so far as identity of the appellant is concerned because

he admittedly did not tell the Doctor, who prepared the MLC, the name

of the assailants. This lapse, to our mind, is inconsequential because

while preparing the MLC the Doctor is not supposed to seek all the

facts from the patient, but his main concern is to attend to the injury of

the patient and save his life. Otherwise also, the witness has explained

that he did not name the assailants because the examining Doctor did

not ask for the same.

14. Next challenge to the testimony of Parmod Kumar, PW2 is that

his testimony is inconsistent with the medical evidence. The learned

Senior Counsel for the appellants in support of the contention has

drawn our attention to the testimony of PW2, Parmod Kumar who

stated that two or three knife blows were given by the appellants to his

brother Mahesh, whereas according to the MLC of Mahesh Ex.PW19/C,

he suffered only one stab injury.

15. The inconsistency pointed out by the learned Senior Counsel for

the appellants is not that material so as to discard the testimony of

PW2, Parmod Kumar, who also sustained injuries in the incident.

Otherwise also, it has come in evidence that the occurrence took place

suddenly. Therefore, the witness was not expected to keep count all

the blows given to his brother Mahesh. Further PW1 Savitri Devi and

PW4 Sushma @ Guddo have also supported the version of PW2 Parmod

Kumar regarding stabbing of Mahesh by the appellants.

16. Learned Senior Counsel for the appellants has also submitted

that as per cross-examination of PW2 Parmod Kumar, he has admitted

that there was no quarrel between them and the appellants at the time

of the incident and that they did not say anything at the time of the

incident. This submission of the learned Senior Counsel for the

appellants is misconceived and against the facts. He has tried to pick

up one sentence from the cross-examination and quote it out of

context. The witness actually stated that "we had no quarrel with the

accused persons. The quarrel was with their brother Mahender Singh

because of flow of water to our house. No altercation or any quarrel

took place at the time of incident." If aforesaid version is read as a

whole, it means that the witness initially was referring to the earlier

quarrel between his brother Mahesh when he stated that he had no

quarrel with the accused persons and in the latter part of his version

when he stated that no altercation or any quarrel took place at the

time of incident, he meant that neither he nor Mahesh fought with the

appellants, which fact is clarified from the further statement of the

witness to the effect that the accused persons rushed inside and

caused the injuries all of a sudden. Thus, in our considered view,

learned Senior Counsel for the appellants has failed to point out any

reason to disbelieve the testimony of PW2 Parmod Kumar.

17. From the evidence on record, it is obvious that PW2 Parmod

Kumar also suffered stab injuries in the incident. Therefore, his

presence at the spot cannot be doubted. He is categoric in his

assertion that Mahesh was caught by appellant Suresh Chand and was

stabbed by Daya Ram and when he tried to intervene, Suresh Chand

left Mahesh (deceased) and caught him from his arm and Daya Ram

appellant stabbed him in his back. His aforesaid version finds

corroboration from the testimony of PW1 Savitri Devi and PW4 Sushma

@ Guddo, whose presence at the time of occurrence also cannot be

doubted. As per the evidence, both of them were residing in the house

in which the stabbing took place. Therefore, their presence in the

house at wee hours of the night i.e. 2:00 AM is natural. Further, it is

highly improbable that PW2 Parmod Kumar in his anxiety to settle

some score with the appellants would falsely implicate them and let

the assailants, who killed his brother and also stabbed him go scot free.

Thus, under the circumstances, we are of the view that the learned

Trial Court has rightly relied upon the testimony of PW1, Savitri Devi,

PW2 Parmod Kumar and PW4 Sushma @ Guddo to hold the appellants

guilty of the charges.

18. The second submission of learned Senior Counsel for the

appellants is that genesis of the occurrence which resulted in the death

of Mahesh and injury to PW2 Parmod Kumar lies in the earlier incident

of a quarrel between Munesh Kumar, brother of the deceased and

Mahender, brother of the appellants. Despite of that the prosecution

has failed to examine Mahender as a witness, nor has he been

impleaded as an accused. This circumstance, according to the learned

Senior Counsel for the appellants, leaves a gap in the prosecution case

and makes the prosecution story doubtful.

19. We are not convinced with the above submission. Admittedly,

Mahender who had an altercation with the brother of the deceased

Mahesh is the brother of the appellants. Therefore, there was no

purpose in prosecution citing him as their own witness because under

the natural course of circumstances, he was expected to support the

case of the appellants. The argument as to why he has not been made

an accused with the appellants is also without any merit because

unless the investigation revealed the role of Mahender in the

occurrence, he could not have been cited as an accused. Thus, only

because his brothers took upon themselves to take revenge from the

family members of the complainants, under law he could not have

been cited as a co-accused.

20. It is further submitted on behalf of the appellant that prosecution

has failed to prove the MLC's either of PW2 Parmod Kumar or the

deceased Mahesh. This has deprived the appellants of cross-

examining the Doctor concerned and questioning him about the nature

of injuries and whether or not those injuries could be caused by the

knife Ex.P-1, which has resulted in a serious prejudice to the defence.

Therefore, the appellants are entitled to the benefit of doubt.

21. On perusal of record, we find that MLC of PW2 Parmod Kumar

Ex.PW19/B and MLC of the deceased Mahesh Ex.PW19/C have been

proved on record by examining Kirti Uniyal , Record Clerk, AIIMS-PW19.

As per his statement, these MLCs are in the hand writing of Dr. Sanjay

Sood who had declared Mahesh as brought dead and had also declared

PW2 Parmod Kumar to be fit for statement. Dr. Sanjay Sood has not

been examined to prove the above medico-legal reports. In our

considered view, though it may have been ideal if Dr. Sanjay Sood was

examined to proved the MLCs, yet his non-examination is not of much

significance because so far as PW2 Parmod Kumar is concerned, as per

the MLC.Ex.PW19/B, the nature of injury suffered by him is opined as

simple. Thus, non-examination of Dr. Sanjay Sood has not caused any

prejudice to the appellants. Had this been a case of grievous injury or

dangerous injury then, of course, the appellants could have a reason to

be aggrieved with the non-production of Doctor concerned which has

deprived them to cross-examine him and seek clarification about the

nature of injuries. So far as the deceased Mahesh is concerned, his

dead body was sent for post mortem examination and the post mortem

report is proved on record by PW20 Dr. Rajesh Kumar as Ex.PW20/A.

Dr. Rajesh Kumar was also shown the knife Ex.P-1 and he opined that

the injury found on the person of deceased could be possible with that

knife. He has also given his opinion regarding cause of death. Since

the Doctor who conducted the post mortem has been examined to

prove the injuries on the persons of the deceased, cause of death and

the fact whether or not the injury caused was sufficient to cause death,

we find that no prejudice has been caused to the appellant due to non-

examination of the Doctor who prepared the MLC of the deceased.

22. We find from the testimony of the Investigating Officer that knife

Ex.P-1 (weapon of offence) was sent for serological examination and as

per the report of serological examination Ex.PW24/F, blood stained

were found on the knife and even the blood of human group A was

found on the knife which matched with the blood group of the

deceased which was also A. This also corroborates the testimony of

eye witnesses PW1 Savitri Devi, PW2 Parmod Kumar and PW4 Sushma

@ Guddo, which appears to be natural and truthful. Thus, we have no

hesitation in concluding that the learned trial Judge has rightly

convicted the appellants on both the counts.

23. Learned Senior Counsel for the appellants has further submitted

that even if the prosecution case is taken to be true, then also the

purported act of the appellants do not constitute the offence of

culpable homicide amounting to murder punishable under Section 302

IPC because in the given factual matrix of the case, the intention to

cause death of the deceased is lacking. He has pointed out that as per

the case of prosecution, admittedly only one stab blow was given to

the deceased Mahesh, which is indicative of absence of intention to

commit murder. Thus, he has urged us to convert the conviction under

Section 302 IPC into the conviction for culpable homicide not

amounting to murder punishable under Section 304 Part II IPC. In

support of this contention, he has placed reliance upon the case of

Surendra Singh @ Bittu Vs. State of Uttaranchal, 2006 (1) CAR

(SC) 429.

24. In order to appreciate the submission of learned Senior Counsel

for the appellants, it is necessary to have a look at Section 300 IPC,

which is reproduced thus:

"Section 300. Murder-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-

Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is

likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."

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Exception I-When culpable homicide is not murder-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

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Exception 2-Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

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Exception 3-Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting or the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.

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Exception 5-Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

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25. A plain reading of the above provision shows that a culpable

homicide is murder if the wrongful act of the accused falls within either

of four clauses of Section 300 IPC unless the case is covered under any

one of the five Exceptions.

26. On careful reading of eye witness account given by PW1 Savitri

Devi, PW2 Parmod Kumar, injured and PW4 Sushma @ Guddo, we find

that it is proved on record that the appellants had trespassed in the

house of Munesh, brother of the deceased, in the late hours of night at

2:00 AM. Appellant Daya Ram at that time was holding a knife in his

hand. On entering the house, appellant Suresh caught hold of the

deceased and exhorted appellant Daya Ram to stab him and on his

instigation, Daya Ram inflicted fatal injury on the neck of the deceased

just below the chin, which is a vital part. In view of the aforesaid

matrix, only inference which could be drawn is that the appellants had

attacked the deceased Mahesh and PW2 Parmod Kumar with a knife in

furtherance of their common intention to cause their death.

27. The judgment in the matter of Surendra Singh @ Bittu Vs.

State of Uttaranchal(Supra) is not applicable to the facts of this case

because aforesaid judgment was based upon its own peculiar factual

matrix. In the said case matter, case of the prosecution was that the

cattle belonging to the appellant had damaged the standing crops of

the deceased and when he protested, hot words were exchanged.

There was a scuffle and on the exhortation of his elder brother, the

appellant fired a shot from his gun which caused fatal injury to the

deceased. The Investigating Officer, however, did not find any

evidence in this behalf and since the underlying cause which resulted

in exchange of hot words and scuffle was not established and only one

gun shot was fired and also that the appellant was not apprehended at

the spot, the Supreme Court took the view that in the aforesaid factual

matrix it could not be said that the appellant had an intention to kill the

deceased and concluded that the case against the appellant in that

case would fall within Section 304 Part II of the IPC. Factual matrix of

the case is entirely different. In the instant case, prosecution has been

able to establish that the appellants armed with a deadly weapon, a

knife, entered the house of Munesh in the late hours of the night at

about 2:00 AM and suddenly one of them Suresh caught hold of the

deceased and the appellant Daya Ram gave him fatal blow with the

knife on the exhortation of Suresh and when PW2 Parmod Kumar tried

to intervene, he was also stabbed by Daya Ram. From the aforesaid

facts, it can be safely inferred that the appellants had trespassed into

the house of Munesh with the intention to kill. Even as per the post

mortem report Ex.PW20/A and the opinion of Dr. Rajesh Kumar, PW20,

the injury inflicted on the neck of the deceased, which is obviously a

vital part of the body was sufficient to cause death of the deceased.

Therefore, we have no doubt in our mind that the case of the

appellants squarely falls within Section 300 IPC Clause Thirdly.

28. It may also be relevant to point out at this stage that learned

Senior Counsel for the appellants has not been able to show us any

evidence which could bring the case of the appellants under either of

the Exceptions to Section 300 IPC.

29. Thus, we are of the view that the learned Trial Judge has rightly

held the appellants guilty of the offences punishable under Section 302

read with 34 IPC and Section 307 read with 34 IPC.

30. The result is that the appeal is devoid of merit. It is accordingly

dismissed.

31. Appellants are on bail. Their bail bond and surety bond are

cancelled. The appellants be taken into custody to undergo the

remaining sentence.

AJIT BHARIHOKE, J.

OCTOBER 30, 2009                          SANJAY KISHAN KAUL, J.
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