Amul Kumar Sardar vs State
2009 Latest Caselaw 3576 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Date of Decision: 4th September, 2009

+                               CRL.A. 438/2005

       AMUL KUMAR SARDAR               ..... Appellant
               Through: Mr. Sumeet Verma, Advocate

                                    versus

       STATE                                        ..... Respondent

                     Through:       Mr. M.N.Dudeja, Advocate

                                CRL.A. 924/2005

       SUNIL @ SONU                            ..... Appellant
                Through:            Mr. V.K.Raina, Advocate

                                    versus

       STATE                                        ..... Respondent
                     Through:       Mr. M.N.Dudeja, Advocate

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR

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.(Oral)

1. Vide impugned judgment and order dated

9.12.2002 the appellants have been convicted for the offence

of having murdered Kul Bahadur Thapa. Vide order of even

date, they have been sentenced to undergo imprisonment for

life.

2. The appellants have been convicted on the sole

testimony of PW-1 Jagdish who deposed that when he was

stationed at his handcart he saw the accused chasing a boy

whom they stabbed while running. We note that Jagdish

admitted that the time was around 8/8:30 PM. He denied that

there was darkness in the street where the deceased was

stabbed.

3. That a boy was stabbed near DDA flats Kalkaji was

recorded at the police station Kalkaji vide DD No.14A dated

24.12.2000. It transpired that the boy who was stabbed was

Kul Bahadur Thapa.

4. The post-mortem report Ex.PW-8/A of Kul Bahadur

Thapa shows two stab wounds, one on the right chest placed

4.5 cm below right nipple and 6.5 cm from midline which was

muscle deep. The second was a stab wound on the left side of

the abdomen, 3 cms from umbilicus and 24 cm from the left

nipple.

5. Needless to state the first injury is a simple injury

caused by a sharp edged weapon. The second is a grievous

injury and was the cause of death of the deceased because

after cutting through the muscles of the stomach, the weapon

of offence even cut the intestines of the deceased. The result

was excessive bleeding triggering haemorrhagic shock.

6. Some light is thrown on the issue at hand by

Mohd.Munshi PW-14 who deposed that he was a conductor in

bus No. DL 1PA 5131 which used to ply on the route Ambedkar

Nagar to Lajpat Nagar. The bus commenced its return journey

from Lajpat Nagar at 8:00 PM and while he was selling tickets

to the passengers, a quarrel ensued between some

passengers. He disclaimed any further knowledge and was

declared hostile. On being cross examined by the learned

Public Prosecutor he admitted that the deceased alighted from

the bus, but denied that two other boys also alighted from the

bus. He admitted that enroute, the bus had to cross DDA flats

near Tuglakabad Extension.

7. Mohd.Munshi has suppressed certain aspects of the

truth evidenced by the fact that the testimony of PW-1 clearly

establishes that the accused had chased the deceased near

DDA flats Tuglakabad Extension.

8. But, the testimony of Mohd.Munshi establishes that

a quarrel took place between passengers in his bus and that

the deceased de-boarded the bus. It is thus apparent that the

deceased and the appellants had a quarrel in the bus and as

deposed to by Mohd.Munshi the deceased de-boarded the bus

and so did the appellants. Thus, everything happened upon a

sudden quarrel, the origin whereof has not seen the light of

the day.

9. We note that after they were apprehended, the

appellants refused to participate in the Test Identification

Proceedings. The Test Identification Proceedings pertaining to

appellant Sunil i.e. Ex.PW-22/A bearing signatures of Sunil at

point Ex.PW-22/B record the reason for Sunil's refusing to

participate in the Test Identification. He refused to join the

Test Identification stating that his accomplice Amul had

inflicted a knife blow to a Nepali in bus route No.416 and that

the witness who had come to do the Test Identification had

seen him along with the accomplice. The witness who was

supposed to do the Test Identification was the conductor of the

bus i.e. Mohd.Munshi. Similarly, as recorded in the record of

the Test Identification Proceedings pertaining to Amul, i.e.

Ex.PW-22/H, he has refused to participate in the Test

Identification stating that on the day of the incident he was in

the bus with Sonu (Sunil) but he did nothing and since he has

been shown to the witness he refuses to participate in the Test

Identification Proceedings and that Sonu had stabbed the

deceased.

10. The reasons given by the appellants while refusing

to participate in the Test Identification Proceedings have let

the cat out of the bag. Ignoring the confessional part of their

statements made to the Magistrate who had conducted the

Test Identification Proceedings, suffice would it be to note that

both of them have given no justifiable cause to refuse

participation in the Test Identification Proceedings. Qua Amul

there is no evidence that the witness was permitted to see him

when he was in custody. Thus, the refusal to participate in the

Test Identification Proceedings is also an incriminating

evidence against them.

11. It is not a case where the appellants had any

previous enmity with the deceased.

12. The stabbing incident had taken place at 8:30 PM

on 24.12.2000. By that time of the year i.e. Christmas Eve

time, darkness sets in at Delhi by 5:30 PM. By 8:30 PM it is

completely dark. The site plan Ex.PW-12/A shows that the spot

from where Jagdish witnessed the occurrence is Mark B and at

a distance of 8 meters across is an electric pole. The place

where the deceased was stabbed has been shown as Mark A

which would be at a distance of about 5 meters from where

Jagdish was standing. The electric pole would be throwing

light from the opposite side to where Jagdish was standing i.e.

would be illuminating persons in front of Jagdish from the rear

of the said persons. As per Jagdish the appellants were

running after the deceased and while running, stabbed him.

13. It cannot thus be said that the prosecution has

successfully established that the appellants had intended to

strike the deceased in the stomach. It is possible that a blow

directed towards the deceased accidentally struck the

stomach of the deceased. Thus, it cannot be said that it has

been established that the appellants intended to cause injury

on the stomach of the deceased. That apart, if a person stabs

another person when the two are running, it would be a

situation akin to the assailant indiscriminately attacking and

thereby requiring an inference to be drawn that the specific

injury caused was not the one intended to be caused.

14. In the decision reported as 2007 (6) SCALE 649

Sunder Lal Vs. State of Rajasthan, an incident in almost dark

conditions with feeble light and attack being indiscriminate

with one blow landing on the head which proved to be fatal

was held to be the commission of an offence punishable under

Section 304 Part I IPC.

15. We thus hold that the evidence establishes the

commission of an offence punishable under Section 304 Part I

IPC and not the offence of murder.

16. We partially allow the appeals, in that we hold the

appellants guilty of committing culpable homicide not

amounting to murder and for the offence, punish them under

Section 304 Part I IPC by directing that the appellants shall

undergo RI for 10 years. Needless to state the appellants

would be entitled to the benefit of Section 428 Cr.P.C.

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

order be sent to the Superintendent Central Jail Tihar for

necessary action.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE September 04, 2009 mm