Raj Kumar vs State (Delhi Administration)
2009 Latest Caselaw 3603 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                       Reserved on : 31.08.2009
%                                                   Date of decision : 07.09.2009


+                               CRL. A. No. 157 of 1994


RAJ KUMAR               ...       ...    ...    ...    ...     ...    ... APPELLANT
                                Through : Ms. Nandita Rao, Advocate.


                                     -VERSUS-


STATE (DELHI ADMINISTRATION) ...    ...     ...    RESPONDENT
                    Through : Mr. Sunil Sharma, Advocate.


CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE


1.        Whether the Reporters of local papers
          may be allowed to see the judgment?                            Yes

2.        To be referred to Reporter or not?                             Yes

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


SANJAY KISHAN KAUL, J.

1. The appellant and the deceased, Maina were both

residents of a jhuggi cluster in Motia Khan, Pahar Ganj,

Delhi. The appellant is alleged to have inflicted multiple

stab wounds with a knife on the deceased while she was

sitting on a cot outside her jhuggi at 6.45 p.m. on

12.09.1992, while she was cleaning pulses and rice. The

appellant is alleged to have been shouting that the _____________________________________________________________________________________________

deceased had killed his son Deepu and, thus, he would

not leave her alive, whereafter the knife wounds were

inflicted. The appellant thereafter started running from

the spot towards his jhuggi and is alleged to have thrown

the knife in a public urinal whereafter he ran away. The

deceased was taken to the main road by Rattan Lal, PW -

3 and others where an ambulance van was present.

A.S.I. Sri Krishan removed her to RML Hospital where she

was declared brought dead. The appellant is also stated

to have approached the ambulance on account of injuries

sustained by him and was simultaneously removed to the

hospital. A statement of PW - 3 was recorded and

thereafter the FIR was registered under Section 302 of

the Indian Penal Code (for short, 'IPC') and the appellant

was arrested. On completion of investigation, the

appellant was charged with offences under Section 302

of the IPC and under Section 27 of the Arms Act. The

appellant pleaded not guilty and prayed for trial. In

terms of the judgment dated 18.05.1994 and the order of

sentence dated 20.05.1994, the appellant was found

guilty of offences under Section 302 of the IPC as also

under Section 27 of the Arms Act and sentenced to

undergo life imprisonment and pay a fine of Rs.5,000/-

under Section 302 of the IPC and to undergo rigorous

imprisonment of one year under Section 27 of the Arms

Act. The appellant, thus, preferred the present appeal.

_____________________________________________________________________________________________

2. The undisputed fact is that the son of the appellant died

about eight months prior to the incident and it was the

belief of the appellant that he was murdered by the

deceased. This is stated by the prosecution to be one of

the motives for the crime apart from a dispute about

water supply through a tap for which the payment was

not made by the appellant and, thus, the deceased was

alleged to be not permitting the appellant and his family

to take water from the tap.

3. The case of the prosecution is based on occular evidence

of the complainant PW - 3, PW - 2 and PW - 5. The facts

leading to registration of the FIR and its investigation

have been explained by the prosecution thus : H.C. Ram

Bahadur Singh, PW - 10 was the duty officer at P.S. Pahar

Ganj on 12.09.1992 when a call was received from an

unknown person at about 7 p.m. and DD No. 20A (Exhibit

PW - 10/E) was recorded to the effect that a quarrel was

going on at Motia Khan. The DD was marked to A.S.I. Jia

Ram, PW - 14, who went to the spot of jhuggi No. 580

and found that a blood-stained saree of Maina was lying

there and blood was spread on the ground. Rice and

pulses were found scattered and he was informed that

the injured had been removed to the RML Hospital. A.S.I.

Jia Ram went to the Hospital where he met S.I. Rajinder

Singh and S.H.O. J.L. Sawhney. S.I. Rajinder Singh

produced the MLC of the appellant and the deceased.

_____________________________________________________________________________________________

The statement of Rattan Lal (Exhibit PW - 3/A) was

recorded and the rukka (Exhibit PW - 10/A) was sent for

registration of the case through Constable Salim Ahmed

whereafter FIR No. 431/1992 was registered (Exhibit PW -

10/B).

4. A.S.I. Jia Ram subsequently went to the spot and got it

photographed. S.H.O. took over the investigation and

blood samples were lifted along with the blood-stained

earth, scattered rice and pulses and blood-stained dhoti.

The blood-stained shirt of Rattan Lal was also taken into

possession by the S.H.O. The appellant was brought to

the spot and made a disclosure statement (Exhibit PW -

3/D) and led the police party to the urinal at D.B.G. Road

from where the knife was recovered. A carbon copy of

the site-plan prepared by the SHO J.L. Sawhney, PW - 19

is Exhibit PW - 19/H and the scaled site-plan prepared

subsequently on the basis of the visit made on

02.11.1992 is Exhibit PW - 1/A.

5. PW - 3 is the principal eye-witness to the incident, who

has stated that he knew the appellant and the deceased

as they were living in the same neighbourhood. The said

witness was inside the jhuggi when he heard the voice of

the appellant saying that since the deceased had got his

son killed, the appellant would not spare her and

thereafter he heard a voice of the deceased that the

appellant had stabbed her. It is at that stage that the

_____________________________________________________________________________________________

witness came out and saw the appellant holding a knife

in his right hand and gave one knife blow on the right

side of the shoulder of the deceased and ran away from

the spot and the appellant is stated to have fallen down

while being chased by other persons, but managed to

escape and threw the knife near the urinal by the bus

stand while running towards the police station. PW - 3

called up the police from the public booth and returned

to the spot at which stage the deceased was lifted and

brought outside on the main road from where the van

took her to the hospital. The appellant is stated to have

gone himself to the police station and was also in the

same vehicle, which took them to the hospital. The

motive stated by the said witness is the same as

explained hereinbefore. The witness took part in the

inquest proceedings and further stated that the appellant

had stabbed the deceased three times in his presence.

The son and husband of the deceased are stated not to

have come personally to collect the dead body as the

husband was blind and the son was sick on the said day.

However, the last rites were performed by the husband

and son of the deceased. The other eye-witness is PW -

2, Guddo, who lived in front of the jhuggi of the deceased

and saw the whole incident. She claimed that she

became so nervous on seeing the incident that she fell

unconscious. She, however, further stated that there

_____________________________________________________________________________________________

was a general rumour in the neighbourhood that the

deceased had got the son of the appellant killed and

made it a case of suicide. She also referred to another

rumour in the neighbourhood that the husband of the

deceased Omi Lal had murdered the deceased because

of Rattan Lal and falsely implicated the appellant

because of personal animosity with the deceased.

6. The deposition of PW - 5, Bimla, who was watching a film

in the neighbourhood and came out on hearing the noise,

establishes that she saw PW - 3 chasing the appellant,

the deceased was lying on the floor with the blood oozing

out of her and on seeing the deceased, she also became

nervous and unconscious. She also referred to the

dispute about the water from the tap.

7. PW - 18, Jagbir Singh, Record Clerk of RML Hospital,

appeared in the witness box as PW - 18 and proved the

MLC prepared by Dr. Nalin Sinha. Dr. Alpana Sinha, who

conducted the post-mortem of the deceased and

prepared the report (Exhibit PW - 20/A), appeared in the

witness box as PW - 20. She opined that the cause of

death was shock due to hemorrhage from the stab

wound on the lung caused by external injury No. 6.

Injuries No. 5 and 6 were stated to be caused by a sharp-

pointed cutting weapon and injury No.6 was sufficient in

the ordinary course of nature to cause death.

_____________________________________________________________________________________________

8. We may notice at this stage that the blood-stained shirt

of PW - 3, clothes of the deceased as well as the knife

was sent to CFSL for analysis. The blood group of the

deceased was 'B', which was found both on the shirt of

PW - 3 and on the knife.

9. Learned counsel for the appellant sought to contend that

the case of the prosecution was really based on the sole

eye-witness testimony of PW - 3 since PW - 2 and PW - 5

both claimed that they had fainted and the testimony of

PW - 3 is stated to be full of contradictions. In this

behalf, it has been urged that though the appellant is

alleged to have killed the deceased with a knife, post-

mortem report reveals injuries by three objects - (i)

sharp-cutting object resulting in four wounds; (ii) pointed-

sharp cutting object resulting in two wounds; one of

which was fatal and (iii) a blunt object.

10. In respect of the aforesaid plea, we really see no

contradiction because if the edge of the knife is used, it

would cause a sharp cut, while if the head of the knife

would be used, it would cause a pointed sharp cut. The

blunt injury could be with some act with the back of the

knife or otherwise in the process of attack and fall.

11. Learned counsel for the appellant also pleaded that PW -

3 is an interested witness and it is his clothes, which

were blood-stained and the knife was recovered through

_____________________________________________________________________________________________

him. It is alleged that PW - 3 was really the paramour of

the deceased.

12. If the testimony of PW - 3 is read as a whole, we find no

contradiction. There is nothing, which prevents the

testimony of even an interested witness to be relied upon

so long as it is consistent and trustworthy. The blood-

stained clothes of PW - 3 were a direct result of handling

the body of the deceased and carrying her to the main

road. The recovery of the knife was on the disclosure

statement of the appellant, though the testimony of PW -

3 also supports the factum of the appellant throwing the

knife away since initially PW - 3 chased the appellant.

Otherwise also, the testimony of PW-3 is corroborated by

PW-2, Guddo, who has also witnessed the stabbing as

also PW-5 who saw the appellant running away and being

chased by PW-3, as is apparent from this version detailed

hereinbefore.

13. A further aspect relied upon by learned counsel for the

appellant is that the conduct of the accused in himself

going towards the police station and getting on the

ambulance is inconsistent with the conduct of a person,

who has murdered another person and is running away

from the site. In this behalf, it may be noticed that the

appellant had fallen as deposed by PW - 3 and had

injured himself and was running in the straight direction,

which went towards the police station. The appellant

_____________________________________________________________________________________________

having been injured wanted to be taken to the hospital

for treatment. This fact by itself would not absolve the

appellant of the crime.

14. Learned counsel for the appellant also sought to attack

the motive since the incident about the death of the son

of the deceased occurred more than eight months before

and the appellant had not implicated the deceased for

the death of his son. In our considered view, the fact

remains that the testimony of occular witnesses shows

that there was a grudge held by the appellant as he

perceived a role of the deceased in the death of his son.

It appears that the same continued to trouble the mind of

the appellant and on the fateful day something appears

to have snapped to cause the appellant to take the

extreme step of stabbing the deceased.

15. Learned counsel for the appellant referred to the

judgment in Toran Singh v. State of M.P., (2002) 6 SCC

494 to contend that a prosecution case should rest on its

own strength and not on the absence of explanation of

plausible defence by the accused. A reading of the

judgment, however, shows that what weighed with the

Supreme Court was that there were material

contradictions and omissions in the statement of

witnesses, which indicated serious infirmities and

improbabilities of the prosecution case giving rise to

_____________________________________________________________________________________________

grave doubt. In the present case, we find really no such

contradiction if the testimonies are read as a whole.

16. Learned counsel for the appellant had also referred to

the judgment in Ramji Surjya Padvi & Anr. v. State of

Maharashtra, (1983) 3 SCC 629 to contend that where

there is only a sole eye-witness to the crime, conviction

may be recorded against the accused concerned

provided the court, which hears such witness, regards

him as honest and truthful, but prudence requires that

some corroboration should be sought from the other

prosecution evidence in support of the testimony of a

solitary witness particularly where such witness also

happens to be closely related to the deceased and the

accused are those against whom some motive or ill-will is

suggested. Once again, there is no doubt about this

abstract proposition but, in the present case, the

testimony of PW - 3 is consistent and reliable. Not only

that, it is not possible to ignore the testimony of PW - 2

and PW - 5, who were at the site. PW - 2 did faint, but

saw the appellant inflicting blow on the deceased. PW -

5 saw the appellant running away with the knife from the

site with PW-3 chasing him. The learned Trial Court has

rightly noticed that in the cross-examination of PW - 2

she has stated that she became nervous on seeing the

knife in the hand of the appellant and she could not

speak out anything, but this did not mean that she had

_____________________________________________________________________________________________

not witnessed the occurrence of stabbing. Even PW - 5

in her examination-in-chief had supported the case of the

prosecution to the extent of the identity of the appellant

who was seen by her carrying a knife in his hand and the

deceased Maina lying on the floor bleeding and this part

of the statement could not be ignored simply because

she had turned hostile. The trial court has rightly noticed

that where a witness has found to have given unreliable

evidence in regard to certain particulars, then the Court

should scrutinize the rest of his evidence with care and

caution and if the remaining evidence is trustworthy and

the substratum of the prosecution case remains intact,

then the Court should uphold the prosecution case to the

extent it considers safe and trustworthy. Thus, there is,

in our considered view, sufficient material to establish

the guilt of the appellant beyond reasonable doubt.

17. It may further be noticed that the learned trial court has

rightly arrived at a categorical finding that the injury

caused by the appellant to the deceased was sufficient in

the ordinary course of nature to cause death. The story

set up by the appellant before the learned trial court that

someone had given him a danda blow on his head by a

person as a result of which he fell down has been belied

by the learned trial court on the ground that the

appellant was carried to the hospital along with the

deceased in the same ambulance van and, therefore, it

_____________________________________________________________________________________________

was clear that he had not become unconscious on

receiving of such injury and had someone hit him on his

head, he would have tried to chase the said person and

apprehend him. This is also clear from the fact that in

the process of running away, the appellant fell down and

received injuries on his head.

18. We may also notice that the learned trial court has

rightly observed that non-availability of Bhagwan Dass,

son of the deceased, would not adversely affect the case

of the prosecution more particularly when the case of the

prosecution is based on occular evidence and all the eye-

witnesses had seen the appellant carrying a knife in his

hand, either stabbing the deceased or running away with

the knife from the spot.

19. The last aspect urged by learned counsel for the

appellant is that the appellant has been in custody for a

number of years. The incident, if at all it has occurred, is

of a momentary anger and the appellant should not be

sent back to incarceration.

20. The facts of the present case, however, show that the

crime cannot be brought within the four corners of

Section 304 Part II of the IPC. There was no immediate

provocation. The appellant was troubled by some fact

and at some stage decided to take law into his own hand

to commit the crime. The case is clearly covered under

the provisions of Section 300 of the IPC. The

_____________________________________________________________________________________________

consequence of such conviction has to result in at least a

sentence of life imprisonment as the option of any lesser

sentence is not available with the Court since the same

has not been provided for by the Legislature.

21. We find the appeal without any merits and the same is

dismissed. The appellant be taken into custody to

undergo the remaining sentence.

SANJAY KISHAN KAUL, J.

SEPTEMBER 07, 2009                                                  AJIT BHARIHOKE, J.
madan

_____________________________________________________________________________________________