Kirpa Shankar vs State
2009 Latest Caselaw 3589 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Judgment reserved on : September 3, 2009
                         Judgment delivered on : September 7, 2009


+      CRIMINAL APPEAL NO.212/1996


       KIRPA SHANKAR                              ..... Appellant
                         Through:Mr.Sumeet Verma, Advocate/
                                 Amicus Curiae.


                               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 ?


AJIT BHARIHOKE, J.

1. Appellant Kirpa Shankar has been convicted for an offence

punishable under Section 302 IPC in Sessions Case No.47/1991

arising out of FIR No.88/1991 registered at Police Station Model

Town, Delhi for having committed murder of Mohinder Singh and

sentenced to undergo imprisonment for life and also to pay a fine of

Rs.500/-, in default, to undergo RI for a period of six months.

2. Briefly stated, case set up by the prosecution is that on 10 th

May 1991 the appellant Kirpa Shankar had gone to see night show

at Vijay Cinema along with his co-accused Rakesh and Zafar Ali.

Mohinder Singh and PW-5 Abdul Aziz had also gone to see the night

show at Vijay Cinema. During the interval, some talks took place

between the appellant and the deceased Mohinder Singh. After the

show was over, the appellant Kirpa Shankar, Mohinder Singh

deceased and PW-5 Abdul Aziz left the cinema hall on a two-wheeler

scooter No.DEU 4569. When they reached at a distance of 150

yards near the petrol pump, appellant raised a demand of Rs.4,000/-

from the deceased and forced them to stop the scooter. Meanwhile,

his accomplices Zafar Ali and Rakesh also arrived. It is stated that

Kirpa Shankar warned PW-5 Abdul Aziz to stay near the scooter and

he along with Zafar Ali and Rakesh took the deceased to the left

side of the road. Appellant Kirpa Shankar asked the deceased to

return his 4000/- rupees failing which he threatened to kill him.

Deceased protested that he owed no money to the appellant.

Thereafter, at the instance of appellant Kirpa Shankar, Zafar Ali and

Rakesh caught hold of the deceased and the appellant Kirpa

Shankar gave 3 or 4 chhuri blows to the deceased. As a result of

chhuri blows, deceased fell down and all the three accused including

the appellant Kirpa Shankar fled away towards Lal Bagh. PW-5

Abdul Aziz took the deceased to Hindu Rao Hospital in a three-

wheeler scooter where he was declared brought dead.

3. It is alleged that PW-5 Abdul Aziz before taking the deceased

to the hospital also informed police control room about the incident.

Pursuant to the information, ASI Ram Kumar along with one

Constable reached at the spot of occurrence and found that the

injured had already been removed to the hospital. He, thereafter,

contacted Abdul Aziz and recorded his statement Ex.PW-5/A and

sent it to the police station for registration of the formal FIR.

4. It was further alleged that on the pointing of Abdul Aziz,

appellant Kirpa Shankar as well as his co-accused Rakesh and Zafar

Ali were arrested from the park C-Block, Industrial Area, Wazir Pur.

On interrogation, they made disclosure statement. Appellant Kirpa

Shankar in his disclosure admitted having committed the murder

and stated that he had concealed the weapon of offence i.e. chhuri

in the corner of the park. Thereafter, he led the police party to a

corner of C-Block park and got the chhuri recovered. The sketch of

the chhuri was prepared. It was sealed and taken into possession.

The blood stained clothes of the appellant were also taken into

possession and the case property was deposited in the malkhana.

After completing necessary formalities of investigation, charge

sheet against the appellant and his other co-accused was submitted

in the Court.

5. Appellant Kirpa Shankar and his co-accused were charged for

offence punishable under Section 302 IPC read with 34 IPC. All of

them pleaded not guilty and claimed to be tried.

6. Accused Rakesh Kumar died during the pendency of the trial.

Learned trial Judge found that involvement of Zafar Ali in the

commission of crime was doubtful. He accordingly acquitted him

giving him benefit of doubt. Appellant Kirpa Shankar, however, was

convicted under Section 302 IPC.

7. The impugned order of conviction mainly rests upon the eye

witness account of the occurrence given by PW-5 Abdul Aziz and

purported recovery of the weapon of offence i.e. chhuri Ex.P-2 and

the blood stained clothes of the appellant at his instance. It may

be pointed out that PW-5 Abdul Aziz is also the witness to the

aforesaid recovery of incriminating articles.

8. Learned counsel for the appellant has submitted that the

impugned judgment is based on sole testimony of PW-5 Abdul Aziz

who is not a reliable witness. He has submitted that witness Abdul

Aziz claims himself to be a friend of the deceased but his version is

belied by the MLC Ex.PW-13/A. It is PW-5 Abdul Aziz who had taken

the deceased to the hospital. However, in the column of the

description of the deceased, his name, parentage and the address

are shown as `unknown'. He has pointed out that similarly even DD

No.21-A dated 10-11/5/1991 Ex.PW-10/A also records that the Duty

Constable, Hindu Rao Hospital had conveyed information to the

police station on telephone that a person aged 25 years with name,

address and parentage not known was brought in injured condition

by Abdul Aziz. It is argued that had the deceased been his friend,

the witness PW-5 Abdul Aziz would definitely have disclosed the

name of deceased Mohinder Singh at the time of preparation of the

MLC. It is also pointed out by learned counsel for the appellant that

even the alleged history detailing the cause of injuries suffered by

the deceased is not mentioned in the MLC which leads to an

inference that PW-5 Abdul Aziz had not seen the actual occurrence

but he happened to come across the injured after the occurrence

and brought him to the hospital.

9. Learned counsel for the State, on the other hand, has

supported the conclusion arrived at by the learned trial Judge. He,

however, has not been able to explain as to how the deceased came

to be described in the MLC as `unknown', s/o `unknown', resident of

`unknown' .

10. We have considered the submissions made by respective

parties and perused the material on record.

11. The entire case of the prosecution rests mainly upon the

testimony of PW-5 Abdul Aziz who is claimed to be the eye witness

to the occurrence as also the witness to the recovery of the weapon

of offence i.e. chhuri Ex.P-2. PW-5 Abdul Aziz has stated that on the

fateful night, he had gone to see the movie at Vijay Cinema along

with his friend Mohinder Singh on the scooter of Mohinder Singh. He

has also stated that after movie, the appellant Kirpa Shankar joined

them and they proceeded from the cinema hall on the two-wheeler

scooter of Mohinder Singh. After they had moved about 150 yards

from the cinema hall, Kirpa Shankar asked Mohinder Singh to stop

the scooter and, thereafter, he took him aside to a distance of 6-7

paces and demanded Rs.4000/- from him. In the meanwhile, he was

also joined by his co-accused Rakesh and Zafar Ali. Mohinder Singh

protested that he did not owe any money to the appellant and on

this at the instance of appellant Kirpa Shankar, Zafar Ali caught hold

of Mohinder Singh and he stabbed Mohinder Singh twice or thrice

with a chhuri which blows ultimately proved to be fatal. If this

version of the witness is to be believed, then he was well-

acquainted with the deceased. Had the aforesaid version been true,

in all probabilities PW-5 Abdul Aziz would have given the particulars

of the deceased at the time of his admission in the hospital when

the MLC Ex.PW-13/A was recorded. The description of the deceased

in the MLC Ex.PW-13/A as `unknown', s/o `unknown', resident of

`unknown' leads us to the inference that the deceased was not

previously known to Abdul Aziz. Not only this, even no history of

cause of injury to the deceased is recorded in the MLC Ex.PW-13/A.

Had PW-5 Abdul Aziz actually witnessed the occurrence, he

definitely would have given the history of injuries caused to the

deceased as due to stabbing and that history would have found

mention in the MLC. Non mention of the identity of the deceased as

well as history of cause of injuries suffered by the deceased in the

MLC Ex.PW-13/A raise a strong doubt that neither PW-5 Abdul Aziz

was a friend of the deceased nor he was the witness of the

occurrence. A possibility cannot be ruled out that PW-5 Abdul Aziz

by chance came across the deceased lying in injured condition at

the spot of occurrence and brought him to the hospital for

treatment. We, therefore, find it difficult to accept the testimony of

PW-5 Abdul Aziz being unreliable.

12. The other important factor which persuaded the learned Trial

Judge to return finding of conviction against the appellant is the

recovery of weapon of offence i.e. chhuri Ex.P-2 at the instance of

the appellant. PW-5 Abdul Aziz is again the star witness of the

prosecution to prove the recovery of weapon of offence at the

instance of the appellant. He has stated in his testimony that the

appellant Kirpa Shankar made a disclosure statement Ex.PW-5/F

that he could get the chhuri recovered and pursuant to that he got it

recovered from a park under the bushes. He also proved the sketch

of chhuri Ex.PW-5/D and the pointing out-cum-recovery memo

Ex.PW-5/E and stated that he appended his signatures on these

exhibits as witness. Once we have concluded the testimony of PW-5

Abdul Aziz in respect of the occurrence is unreliable, we find it

unsafe to rely upon his testimony regarding the disclosure

statement made by the appellant leading to recovery of chhuri Ex.P-

2. The other witnesses to the disclosure statement and the

recovery of weapon of offence are police officials who obviously are

the witnesses interested in the success of the case. Thus, we do not

deem it safe to rely upon their testimony and we feel that this is a

fit case in which benefit of doubt should have been extended to the

appellant Kirpa Shankar.

13. In view of the discussion above, the impugned judgment of

conviction and consequent order on sentence cannot be sustained.

The appeal is, therefore, accepted and the appellant is acquitted.

14. Appellant is on bail. His bail-cum-surety bonds are cancelled.

AJIT BHARIHOKE, J.

September 07, 2009                       SANJAY KISHAN KAUL, J.
Ks