Satya Prakash & Ors. vs State
2009 Latest Caselaw 3798 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved On: 8thSeptember, 2009
                     Judgment Delivered On: 16th September, 2009

+                          CRL.A. 583/2001

        SATYA PRAKASH & ORS.                ..... Appellants
                 Through: Ms. Ritu Gauba, Advocate

                                  versus
        STATE                                    ..... Respondent
                      Through:    Ms. Richa Kapoor, 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.

1. Satya Prakash, his wife Saroj and his sons, Raj

Kumar @ Raju and Harish have challenged the judgment and

order dated 2.8.2001 convicting them for the offence

punishable under Section 302/34 IPC; 307/34 IPC and for the

offence punishable under Section 452 IPC. For the offence of

murder they have been directed to undergo imprisonment for

life. For the offence punishable under Section 307 IPC they

have been directed to undergo imprisonment for 10 years and

for the offence punishable under Section 452 IPC they have

been directed to undergo imprisonment for 5 years. All

sentences have been directed to run concurrently.

2. The charge of murder related to the death of Ajay

son of Ram Singh. The charge of attempt to murder related to

the assault on Ram Singh. The charge pertaining to Section

452 IPC related to committing house trespass in the house of

Ram Singh after making preparation for causing hurt to Ram

Singh.

3. In returning the finding of guilt the learned Trial

Judge has laid emphasis on the fact that Ram Singh PW-5

being an injured, is obviously an eye witness, and there was

nothing to show that Ram Singh had not deposed the truth.

With reference to the place where the blood of the deceased

and blood of Ram Singh was lifted, as deposed to by the

investigating officer, the learned Trial Judge has held that the

same established that the assault on Ram Singh and his son

took place within the precincts of the residence of Ram Singh.

With reference to the post-mortem report Ex.PW-1/A of Ajay;

noting injury No.1, the learned Trial Judge has held that the

same established the intention of the accused to murder Ajay.

With reference to the MLC Ex.PW-4/A of Ram Singh, the

learned Trial Judge has held that it establishes a murderous

assault on Ram Singh, who survived the assault due to good

luck.

4. At the hearing of the appeal, learned counsel for

the parties had agreed that the fate of the appeal needs to be

decided on the testimony of Ram Singh and the defence of the

appellant taken at the very beginning i.e. Ram Singh and his

son were the aggressors. That an incident did take place on

11.9.1997 in which Ram Singh, Ajay and Satya Prakash

sustained injuries was admitted.

5. Before noting the testimony of Ram Singh and the

defence taken, it may be noted that even Satya Prakash,

appellant No.1 had received fairly serious injuries at the time

of the incident; but unfortunately, what those injuries were has

not come on record since the MLC of Satya Prakash has not

seen the light of the day. Neither the prosecution filed the

same nor Satya Prakash produced the same in defence. But,

the fact that even Satya Prakash had received serious injuries

is evidenced from DD No.31A, Ex.PW-10/A, recorded at the

police station by the duty officer HC Banwari Lal PW-10 at 7:45

PM on 11.9.1997, which notes that two men named Ram Singh

and Satya Prakash both residents of House No.457, Old

Hospital, Najafgarh had come together to the police station to

lodge cross complaints. But since both were bleeding heavily

and their clothes were soaked in blood, they were sent to

Safdarjung Hospital. At the trial HC Banwari Lal PW-10 proved

DD No.31A. He deposed that both Ram Singh and Satya

Prakash were badly injured when they came to the police

station and Const.Surat Singh of Home Guard took them to

Safdarjung hospital.

6. MLC Ex.PW-4/A of Ram Singh, duly proved at the

trial by the author thereof; namely, Dr.Sunil Dayal PW-4,

records that Ram Singh aged 70 years was examined at the

hospital at 9:00 PM and had the following injuries:-

"1. 1½ long incised wound, one inch lateral to left nipple horizontally along the axis of the rib.

2. 1 inch long incised wound 1½ inch lateral to left nipple at the level of 5th rib (horizontal).

3. 1 incised wound at the level of 9th rib vertically at the level of vertical line of mid axilla.

4. 1 cm incised wound at the level of 2nd rib lateral to xiphisternum.

5. Punctured wound 2 inchanges right aliac crust with exposure of omentum."

7. Ajay was removed from the spot to the hospital by

ASI Raj Singh PW-13 who was incharge of PCR Gypsy (Zebra)

and received information that a stabbing incident had taken

place in a house at Hospital Road, Najafgarh behind a

Dharamshala. He took the gypsy to House No.457, Najafgarh,

as deposed to by him, and took Ajay to the hospital. The MLC

Ex.PW-3/A of Ajay prepared by Dr.H.Ganesh PW-3 records that

Ajay was brought dead.

8. The body of Ajay was seized and sent for post-

mortem. Dr.Alexander PW-1 conducted the post-mortem and

prepared the post-mortem report Ex.PW-1/A noting that Ajay

died due to haemorrhagic shock consequent upon injury No.1

which was caused by a double edged sharp weapon. He

opined that the injury was sufficient in the ordinary course of

nature to cause death. Seven other injuries were noted and

were opined to be caused by blunt force impact with a hard

surface or a blunt object used as a weapon. All injuries were

opined to be ante-mortem. The eight injuries i.e. one caused

by a sharp edged weapon and the other seven caused by a

blunt force impact were as under:-

"(i) Longitudinal stab injury on the left epigastric region of the anterior abdomen of size 3 cm x 0.5 cm x 10 cm. Both the margins were sharp and clean cut with small intestine and omentum protruding out. Both edges acute. The center of the wound being 106 cm above the level of left heel and 5 cm below the level of left hypochondrial margin.

(ii) Abrasion on the front of forehead of size 1 cm x 1 cm.

(iii) Abrasion on the back of right elbow of size 1 cm x 1 cm.

(iv) Abrasion over the left eyebrow of size 1 cm x 0.5 cm.

(v) Multiple graze abrasion on the upper aspect of anterior left side chest within an area of 2 cm x 3 cm.

(vi) Multiple grazed abrasion on the lower aspect of anterior right side chest within an area of 15 cm x 3 cm.

(vii) Multiple abrasions on the front of middle 3 rd left leg within an area of 6 cm x 4 cm.

(viii) Abrasion on the back of left elbow of size 1 cm x 0.5 cm."

9. Suffice would it be to note that injury No.(i) has

pierced 10 cms into the abdominal cavity cutting the small

intestines and also the duedonum. The left renal artery had

been cut as recorded in the post-mortem report under the

caption „internal injuries‟.

10. Unfortunately, PW-1 was not cross examined as to

whether the abrasion injuries No.(v) to (viii) and especially

injury No.(v) and (vi) which were recorded as grazed abrasions

could be the result of being pulled on a staircase. Had he

been questioned as aforenoted, some light could have been

thrown as to what actually happened for the reason the

photographs taken at the spot and especially the photograph

marked A-6 shows considerable blood on the staircase. From

the photograph one can estimate that the width of the

staircase is about 3 feet.

11. The site plan Ex.PW-12/A prepared by Insp.Rajesh

Kumar PW-12, who has not been cross examined with respect

to the site plan shows the spots from where Insp.Rajesh Kumar

lifted blood. The site plan shows that House No.457, Old

Hospital Road, Najafgarh has two parts. The northern part is

the house of the appellants and the southern half is the house

of Ram Singh. The place where Ajay was picked up in an

injured condition has been marked A which is at the point

where the flight of steps leading upto the first floor is shown.

Spot B, C and D are the three spots wherefrom blood was

lifted. Spot B is in the staircase. Spot C and D are on the open

terrace on the first floor abutting a room at the rear of the

open terrace.

12. Since the investigating officer has not been

questioned with respect to his testimony pertaining to the site

plan Ex.PW-12/A and lifting of blood from spots A, B, C and D,

it is apparent that the incident took place in the house of Ram

Singh and to this extent it is apparent that the intruders has

entered the house of Ram Singh and not that Ram Singh and

his son went outside.

13. We feel that we have reached the stage to note the

testimony of Ram Singh as also the testimony of his brother

Gopi Chand PW-9 and thereafter look at the defence. But, we

note that the knives allegedly used by Raj Kumar and Harish

were not recovered.

14. Ram Singh PW-5 deposed that he was having a

constant feud with his brother Satya Prakash and on 11.9.1997

after attending a hearing at Tis Hazari Courts pertaining to a

property dispute relating to the property of his mother, he

returned home at 6:00 PM and was sitting in his house with his

son Ajay. At 7:00 or 7:15 PM, Satya Prakash, his wife Saroj and

his sons Raju and Harish entered his house. Satya Prakash

said that he would teach him a lesson for not deposing

favourably in Court. Raju said that somebody should catch

him so that he could inflict a knife injury on him. Satya

Prakash grabbed him and Raju inflicted injuries on his

abdomen and chest four or five times with a knife. Till then

the other accused remained standing. His son Ajay tried to

save him. Satya Prakash and Saroj gave lathi blows to both of

them and Harish stabbed Ajay with a knife on the right side of

his abdomen. Immediately thereafter the accused fled. He

deposed that his son became unconscious. He went to the

police station leaving behind his son. Even Satya Prakash

reached the police station. Police removed Satya Prakash and

himself to the hospital and at the hospital he learnt that his

son had died.

15. On being cross examined Ram Singh admitted that

the plaint Ex.PW-5/DA pertained to the suit for partition filed

by him. He admitted that the suit was instituted on 30.4.1998.

He denied the suggestion that no case was listed in Court on

11.9.1997. He denied that on 11.9.1997 he went to Court in

connection with a case of FIR No.257/89 PS Najafgarh under

Section 326/34 IPC. He admitted that he was an accused in a

case under Section 448 IPC titled State Vs. Ram Kumar. He

admitted that a case pertaining to his beating their brother

Gopi Chand was also pending trial. He denied that his son Ajay

and his other son Vijay had dragged Ravi the brother-in-law of

Satya Prakash inside his house and gave him beating upon

which Ravi stabbed Ajay and fled. He denied that he and his

sons Ajay and Vijay went to the house of Satya Prakash and

asked him to sign papers to surrender his share in the property

in his i.e. Ram Singh‟s favour.

16. From the cross examination of Ram Singh it is

apparent that as per Satya Prakash, Ram Singh had come to

his house to compel Satya Prakash to sign some papers and

that his i.e. Ram Singh‟s two sons; namely, Ajay and Vijay were

present and that some altercation took place. Ravi, the

brother-in-law of Satya Prakash intervened and was dragged to

the house of Satya Prakash where Ravi stabbed Ajay.

17. Suffice would it be to state that the defence put up

is falsified from the fact that blood has been lifted from the

open terrace on the first floor of the house of Ram Singh and it

is not possible that without resistance Ravi was dragged

upstairs. Further, the defence put up does not explain how

Satya Prakash received injuries. It is apparent that the

defence is nothing but a futile attempt to create a smoke

screen.

18. But one thing emerges from the testimony of Ram

Singh. It is a continuous past history of bickering between the

brothers and criminal cases lodged against Ram Singh. Due to

this enmity, Ram Singh could possibly rope in all family

members of Satya Prakash whose involvement in the offence

is evidenced from the fact that even Satya Prakash had

received injuries as deposed to by PW-3.

19. Thus, we have to look carefully at the testimony of

Ram Singh who has spoken, if not more, at least two lies. The

first lie is that he went to Court on 11.9.1997 to attend a

hearing in the suit for partition filed by him. Ex.PW-5/DA is the

plaint of the suit filed by Ram Singh against his brothers which

shows that the plaint was verified on 30.9.1998. Ram Singh

has admitted that the suit was instituted on 30.9.1998. The

second lie spoken by Ram Singh is that he was assaulted by

Satya Prakash and Saroj with sticks. As noted above, as per

Ram Singh he was first attacked by Raju with a knife when

Satya Prakash had caught him and that when his son Ajay

tried to save him, Harish stabbed Ajay with a knife and prior

thereto Satya Prakash and Saroj gave lathi blows to him and

Ajay. The MLC Ex.PW-4/A of Ram Singh does not show any

lacerated or abrasion wound and thus rules out any assault on

Ram Singh with a lathi. The injuries on Ram Singh, save and

except the last are all incised wounds i.e. wounds caused by a

knife or any other sharp edged weapon.

20. That apart, the photographs A-1 to A-6 show a

narrow staircase leading upto the first floor. The open terrace

on the first floor appears not to be very big in size.

Unfortunately, no site plan to scale has been proved at the

trial and rough site plan Ex.PW-12/A does not give the

dimensions. What we intend to convey is that there is not

much probability of 6 people fighting on the open terrace.

21. Witnesses can be classified into three categories.

Wholly reliable; partially reliable and wholly unreliable.

22. Witnesses in category one can be believed without

corroboration. Witnesses in the last category have to be

discarded. It is the mid category witnesses which create a

problem for the reason the Court has to sift their testimony to

separate the grain from the chaff. To do so, corroboration is

the only method available.

23. We now have a look to the testimony of the third

brother namely Gopi Chand who has deposed in line of the

defence taken by the accused. He has deposed that Ram

Singh desired Satya Prakash to sign some papers and when

Satya Prakash refused to do so, Ram Singh brought a lathi

from his house and assaulted Satya Prakash. Ravi intervened

and was attacked. Ravi was dragged into the house of Ram

Singh and Ravi inflicted the fatal stab blow on Ajay as also

inflicted injuries on Ram Singh.

24. Gopi Chand has obviously lied and appears to have

settled scores with Ram Singh. Our reason for so stating is the

fact that it is not possible that Ravi was dragged up the stairs

till the open terrace on the first floor of the house of Ram

Singh.

25. The only corroboration we have to the testimony of

Ram Singh is through the MLC of Ram Singh and the post-

mortem report of his son. The only truth which we can

segregate in the testimony of Ram Singh is of his being

attacked with a knife and his son being stabbed with a knife

and hit by a lathi. Ram Singh‟s testimony that he i.e. Ram

Singh was hit by a lathi is false. We have evidence that even

Satya Prakash was grievously injured and was heavily

bleeding. If it was a case of four assailants versus two

defenders, it would be difficult for the two defenders to launch

a counter attack and grievously injure Satya Prakash. That

only Satya Prakash i.e. one out of four assailants received

serious injuries and the others none indicates something more,

being that, in all probability there were three attackers and

two defenders and in the fight two out of the three attackers

being armed with knives inflicted four incised wounds on Satya

Prakash and a fatal stab wound on Ajay and some lathi blows

on Ajay, and in return, one attacker; namely, Satya Prakash

received lathi blows. There have to be three persons who

have attacked Ram Singh and his son for the reason three

weapons of offence have been used; namely, two knives and a

stick.

26. This is our process of reasoning for separating the

grain from the chaff in light of the fact that admittedly, the

assault has taken place in the house of Ram Singh whose

family members could not be the assailants. Admittedly Satya

Prakash received injuries which made him shed considerable

blood. (We note that DD No.31 A notes that clothes of Satya

Prakash and Ram Singh were soaked in blood and that was the

reason their statements were not recorded and both were sent

to the hospital).

27. The question arises as to who accompanied Ram

Singh?

28. In view of the fact that there is past enmity

between the brothers and that Ram Singh has not deposed the

full truth; taking note of the injuries inflicted upon Ajay and

Ram Singh; the fact that even Satya Prakash was injured; the

fact that three weapons of offence have admittedly been used

to cause injuries on Ajay and Ram Singh; the fact that there is

past enmity between the family of Ram Singh and Satya

Prakash leading to a possibility of false implication of the

entire family of Satya Prakash; we conclude by holding that

Satya Prakash, Raju and Harish were the ones who

participated in the assault and as deposed to by Ram Singh,

Harish inflicted the fatal injury on Ajay, and Raju inflicted knife

injuries on Ram Singh and Satya Prakash inflicted lathi blows

on Ajay.

29. Further question which needs to be answered is

whether Satya Prakash, Harish and Raju acted in concert to

cause the death of Ajay.

30. It is apparent that Harish, Raju and Satya Prakash

are the aggressors and went to the house of Ram Singh. They

were armed to the knowledge of each other. Satya Prakash

was armed with a stick. Harish and Raju were armed with a

knife each. On entering the house of Ram Singh, Satya

Prakash exhorted that Ram Singh would be taught a lesson.

Raju responded by saying that somebody should catch Ram

Singh to facilitate his attacking Ram Singh. Satya Prakash

grabbed Ram Singh and Raju inflicted injuries with a knife on

the chest and the abdomen of Ram Singh. Ajay tried to save

Ram Singh and was assaulted by Satya Prakash and Harish. A

knife was in the hand of Harish who used the same to stab

Ajay on the stomach. The blow hit the stomach of Ajay

evidenced by the post-mortem report of Ajay. The intention to

cause the injury which has actually been caused has been

proved through the testimony of Ram Singh. The post-mortem

report shows that the blow was struck with considerable force.

The internal injuries show that the intended injury was

sufficient in the ordinary course of nature to cause death.

Thus, Satya Prakash, Raju and Harish must suffer the

consequence of their concerted action. It is apparent that they

shared a common intention. The principle architect of the

assault is Satya Prakash. His sons actively assisted him till the

end.

31. The appellants Satya Prakash, Raju and Harish have

rightly been convicted. We give the benefit of doubt to Saroj.

32. The appeal stands dismissed qua Satya Prakash,

Raju and Harish. The appeal stands allowed qua Saroj who is

acquitted of the charges framed against her.

33. The appellants are on bail. The bail bond and

surety bonds furnished by Satya Prakash, Raju and Harish are

cancelled. They are directed to surrender and suffer the

remaining sentence. The bail bond and surety bonds furnished

by Saroj are discharged.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

September 16, 2009/mm