Sanjeev Kumar vs State
2009 Latest Caselaw 3883 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+             Crl.A. No. 155/1995 & Crl.A. No. 161/1995

                                               Reserved On : 07.09.2009
%                                           Date of decision : 22.09.2009

SANJEEV KUMAR (Crl. A. No. 155/1995)
SURESH KUMAR (Crl. A. No. 161/1995)
     ...    ...   ...      ...     ...    ...    ...    ...    .APPELLANTS
                     Through : Ms. Rebecca John,
                                Advocate.

                                   -VERSUS-

STATE           ...       ...        ...    ...    ...     ...     ... ..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?              No

2.        To be referred to Reporter or not?               No

3.        Whether the judgment should be
          reported in the Digest?                          No


SANJAY KISHAN KAUL, J.

1. The appellants were charged under Section 302 read

with Section 34 of the Indian Penal Code (for short,

„IPC‟) for having committed murder of the deceased

Rakesh Kumar in furtherance of their common intention

on 18.07.1990 and on being tried were found guilty in

terms of the impugned judgment dated 22.07.1995 and

were sentenced to undergo life imprisonment and to

pay a fine of Rs.2,000/- each and in default to undergo

S.I. for two months as per the order of sentence dated

22.07.1995. The conviction is based on the testimony

of eye-witness, PW - 4, who was the father of the

deceased.

2. The case of the prosecution was that PW - 4 along with

the deceased was carrying on the business of hardware

at a rented Shop No. 2406, Tota Ram Bazar, Delhi. PW -

4 was also the owner of Shop No. 2400, Tota Ram

Bazar, Tri Nagar, Delhi, which had been rented out to

one Badlu Ram. There was some litigation pending in

the Court of the Additional Rent Controller in respect of

Shop No. 2400. Suresh Kumar, the appellant in Crl. A.

No. 161/1995, is the son of Badlu Ram and used to carry

on the business of sale of cigarettes and bidis in the

said shop. The electricity in respect of this shop had

been cut-off in pursuance to the orders of the Court and

Suresh Kumar wanted the deceased to provide him

electricity. This is the background to the incident and

the stated motive of the crime. On 18.07.1990, PW - 4

is stated to have left the shop from where he was

carrying on the business at about 9 p.m. leaving his son

to do the closing, who had to follow PW - 4 thereafter.

PW - 4 claimed that when he reached home on the first

floor, he heard shrieks of his son and when he peeped

out from the window, he saw the accused Suresh Kumar

from the front and two boys from the back inflicting

knife blows on the deceased. One of the boys identified

is Sanjeev Kumar, the appellant in Crl. A. No. 155/1995.

PW - 4 claims to have rushed downstairs and when he

approached the deceased and made an enquiry, it was

confirmed that Suresh and two other boys had inflicted

the wounds. PW - 4 was assisted by his son-in-law,

Satish Kumar, who reached the spot and the deceased

was rushed to the hospital in a car, but was declared

brought-dead as per the MLC (Exhibit PW - 26/A).

3. The police recorded the statement of PW - 4 (Exhibit PW

- 4/A) at his house. In the T.I.P., PW - 4 could not

recognize the third assailant.

4. The investigation officer also joined in public witnesses,

but they became hostile at the stage of trial. PW - 2,

Kapil Garg witnessed the crime and ran after assailants

to apprehend them. However, in so far as identifying

the appellants was concerned, he resiled from his

earlier statement. The conduct of PW - 5, Rajiv Kumar

and PW - 7, Anil Garg, was no different, who also resiled

from their earlier statements : PW - 5 stated that he

was not present, while PW - 7 claimed that he had gone

to the police station along with PW - 4 later on

21.07.1990 when the I.O. had got his signatures on

three or four blank pages.

5. The facts leading to the FIR are that PW - 25, Lady

Constable Pushpa was on duty in the PCR in the evening

of 18.07.1990 when she received a telephonic message

about the injuries caused to the deceased at 9.45 p.m.

near electronic transformer at Tota Ram Bazar, which

was forwarded to P.S. Keshavpuram and D.D. No. 27

(Exhibit PW - 8/A) was recorded. Inspector Gurbaksh Lal

Mehta, PW - 33, who was posted as SHO, P.S.

Keshavpuram received D.D. No. 30 and reached the

spot along with staff including SI Prem Chand. On

reaching the spot, they were informed that the injured

had been removed to the hospital. He thereafter left

the spot for the hospital leaving a constable to

safeguard the spot. On reaching the hospital, ASI Sri

Chand handed over the MLC of the victim, who had

been brought-dead. Thereafter, the statement was

recorded of PW - 4. ASI Dharam Singh, PW - 6, also

partly resiled from his earlier statement as he stated

that nothing was taken into custody by the I.O. in his

presence. In this behalf, it may be stated that SI Prem

Chand, PW - 27 had stated that both the accused were

arrested on 21.07.1990 and their personal search was

conducted. It is the appellant Suresh Kumar, who

pointed out the place of occurrence and on 19.07.1990,

one dagger lying on the Patri near Chhabra Tailors was

taken into possession by PW - 33. The trial court while

recording the testimony of PW - 6 has noted that the

dagger did not fit into the cover, which was taken into

possession by the I.O., but who did not recollect having

signed the seizure memo.

6. It is Inspector Gurbaksh Lal Mehta, PW - 33, who

conducted the inquest proceedings and arrested the

appellants from Dhaula Kuan at the instance of an

informer and carried out the personal search. The T.I.P.

was carried out in which the appellant Sanjeev Kumar

refused to participate. The appellant Suresh Kumar had

disclosed that he had kept the blood stained clothes in

the house of Madan Mohan at Gandhi Vihar and

recovery of the clothes took place from the house of the

Madan Mohan, which were sealed and converted into a

parcel.

7. The post-mortem was conducted by Dr. L.K. Baruah, PW

- 21. The shirt and the baniyan were bearing cut marks

corresponding to the injuries on the body as deposed by

him and the injuries were ante-mortem caused by

sharp-cutting weapon. Injury Nos. 1, 2 and 5 were

stated to be individually sufficient in the ordinary course

of nature to cause death. Davinder Kumar, Record

Clerk, PW - 26, proved the MLC (Exhibit PW - 26/A) by

identifying that it was in the hand of Dr. K. Gopal.

8. Learned counsel for the appellants sought to contend

that the impugned judgment and the order of sentence

could not be sustained as PW - 4 was closely related to

the deceased being his father and his testimony should

not be treated as reliable. In this behalf, learned

counsel contended that though PW - 4 claims to have

taken the deceased to the hospital, the MLC did not

mention any name of the person causing the injury

though the appellant knew at least Suresh Kumar. It

was also pointed out by learned counsel that when the

Draftsman PW - 23, Inspector Davinder Singh visited the

site, he was not shown any window from where PW - 4

could have seen the incident. It was further submitted

that there was no occasion for the said witness on

approaching the deceased at the site to have asked him

as to who had caused the injuries if he was an eye-

witness. These are the factors, which according to the

learned counsel, cast a doubt on PW - 4 being an eye-

witness and since the conviction is based solely on the

testimony of that single eye-witness, it was submitted

that there were inconsistencies which entitle the

appellant to at least the benefit of doubt. This plea is

also supported by the fact that the other eye-witnesses

turned hostile.

9. Learned counsel for the appellants also submitted that a

perusal of the Crime Team Report (Exhibit PW - 33/DA)

and of the Rukka showed that the FIR was ante-dated.

10. In so far as the recovery of weapon is concerned,

learned counsel submitted that the weapon could not be

connected to the appellants or the crime and, thus, it is

a case where the weapon was never traced out.

11. The last submission of learned counsel for the

appellants was that the trial court has wrongly taken the

refusal of one of the appellants, Sanjeev Kumar, to

participate in the T.I.P. as a circumstance against him.

It was pleaded that there were justifiable grounds for

the said appellant not to participate as the testimony of

witnesses showed that the said appellant was taken

around in public transport with an un-muffled face. In

this behalf, learned counsel has referred to the

testimony of PW - 19, Constable Mahesh, who stated

that the said appellant, Sanjeev Kumar was taken by

him on 23.07.1990 to be produced before the Court and

his face was muffled. Thereafter he was taken from one

Court to the other, but his face was stated to be un-

muffled while taking him from the Court of Shri N.K.

Sharma to the Court of Shri Sukhdev Singh.

Surprisingly, just before stating so, his testimony shows

that he had claimed that the face was muffled. In cross-

examination, he has stated that the appellant was taken

from Tis Hazari to Tihar Jail in DTC bus, which took

about two and a half hours to reach Tihar Jail.

12. Learned counsel has also drawn our attention to the

testimony of Constable Bhagwat Singh, PW - 16, who

was asked to identify Sanjeev Kumar in the Court and

the witness had stated that he was not present. In fact,

the witness had become hostile.

13. Learned APP has, however, contended that there was no

inconsistency or doubt cast on the testimony of the eye-

witness, PW - 4. The absence of the name of the

appellant, Suresh Kumar in the MLC as the assailant is

explained by the fact that the MLC is recorded in the

hand of the doctor. It was further submitted that the

mental state of the father, who had rushed his son to

the hospital and that the son was declared having been

brought-dead must be kept in mind. There was no

reason for PW - 4 as the father of the deceased to let go

of the real culprits and rope in the appellants even if

there was a prior civil dispute. The I.O. had taken care

to include independent witnesses, but the same had

turned hostile.

14. In so far as the Draftsman preparing the draft and PW -

4 watching the incident is concerned, learned APP has

drawn our attention to the discussion in this behalf in

para 34 of the impugned judgment, which reads as

under :-

"34. ... It is true that the front elevation of the house of Tej Ram and the window has not been shown in the scaled site-plan but it has been duly exhibited in the unscaled site-

plan Ex. PW33/B wherein not only the existence of the window from where Tej Ram had first witnessed the occurrence. On hearing the shrieks of his son has been shown but even the distance between the window and the place of occurrence has been shown to be 24.3 feet. Therefore, it cannot be said that Tej Ram could not have witnessed the stabbing of his son through the first floor window which had iron bars only upto half height of the window."

15. Learned APP also submitted that there was no ante-

dating of the FIR though he did not dispute the fact that

the weapon recovered could not be connected with the

crime, but in that behalf submitted that at best it would

be treated as a case of weapon not being traced.

16. We have examined the rival contentions of the parties.

17. In our considered view, the testimony of PW - 4 cannot

be disregarded solely on the ground that he was the

father of the deceased, i.e., an interested witness.

Learned trial court has rightly appreciated the law laid

down by the Supreme Court in Anil Phukan v. State of

Assam; (1993) 3 SCC 282. The relevant observations of

the Apex Court are as under :

"3.... Indeed, conviction can be based on the testimony of a single eyewitness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that

the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect. ... ... ... ... ... ... ...

4. ... Of course, mere relationship with the deceased is no ground to discard his testimony, if it is otherwise found to be reliable and trustworthy. In the normal course of events, a close relation would be the last person to spare the real assailant of his uncle and implicate a false person. ... ..."

18. A reference may be made to the judgement of the Apex

Court in Munshi Prasad v. State of Bihar; (2002) 1 SCC

351 wherein it was observed that the Court should

scrutinize the evidence of an interested witness more

carefully, and if on such scrutiny their evidence is found

to be trustworthy, the same cannot be rejected merely

on the ground of being interested.

19. We find the testimony of PW - 4, when read as a whole

is free from contradictions and is trustworthy. The fact

that PW - 4 asked his son as to who had caused the

injuries does not have much relevance as it is evident

from the testimony of PW - 4 that it was not in the

sense of a question, but rather an exclamation in shock

of a father who had seen his son being stabbed. It can

also not be ruled out that he could be enquiring about

the names of the other two assailants whom PW - 4 did

not know.

20. We find force in the contention of learned APP that the

MLC was recorded in the hand of the doctor and at the

time PW - 4 was grief stricken and in shock and, thus,

was not able to give the details of the incident to the

doctor.

21. Learned trial court has rightly observed in para 34 of

the impugned judgement, as quoted hereinabove, that

PW - 4 could have witnessed the occurrence from his

house and the same was at a distance of about 25 feet

from the place of occurrence. It has rightly been noted

that though a window has not been shown in the scaled

site-plan, the same has been noted in the un-scaled

site-plan (Exhibit PW - 33/B). It is, thus, abundantly

clear that PW - 4 witnessed the incident from his house.

22. The submission of learned counsel for the appellants

that the FIR was ante-dated is also liable to be rejected

in view of the findings recorded by the learned trial

court that the mere fact that the next consecutive FIR

No. 155 was recorded at 9.05 a.m. on 20.7.1990 is not

sufficient to hold that the FIR was ante-dated.

Moreover, the Crime Team reached the spot at 11.15

p.m. while the statement of PW - 4 with the

endorsement of the SHO was recorded and forwarded to

the Police Station at 11.50 p.m. and it is possible that

the Crime Team did not know about the version given

by PW - 4 by the time they gave their report (Exhibit PW

- 33/DA).

23. Learned counsel for the appellants had also pointed out

that the weapon of offence could not be connected to

the appellants. This submission of learned counsel for

the appellants is also without any merit as the case of

the prosecution is based on ocular evidence and not

circumstantial evidence. It is trite to say that if there is

an eyewitness to a crime and his testimony is found to

be truthful and reliable, then the non-recovery of

weapon of offence cannot be said to be fatal to the case

of the prosecution. We are fortified in our view by the

judgement of the Apex Court in Lakshmi and Ors v.

State of U.P.; (2002) 7 SCC 198 wherein it was observed

that when the prosecution case is established on the

basis of trustworthy testimony of eyewitnesses, non-

identification of the deceased, non-ascertainment of the

cause of death and non-recovery of the crime weapons

would not be fatal to the prosecution. We have found

the testimony of PW - 4 to be trustworthy and hence the

factum of the weapon of offence being not connectable

to the appellants becomes immaterial.

24. Learned counsel placed reliance on the testimony of

Constable Mahesh, PW - 19, to contend that the

appellant Sanjeev Kumar had not been kept in a muffled

face throughout and hence, the learned trial court ought

not to have held the fact that the said appellant refused

to take part in the TIP against him. The relevant portion

of the examination of PW - 19 is as under :

"... Again from the court of Shri N.K.

Sharma, accused was taken in muffled face in

the court of Shri Sukhdev Singh, M.M. Again said when the accused was again taken to the court of Sh. Sukhdev Singh, MM from the Court of Sh. N.K. Sharma, his face was un-muffled."

25. In our considered view, the testimony of PW - 19 cannot

be relied upon. He has affirmed a fact and thereafter

denied the same. His testimony is suffering from a

glaring infirmity, and hence can neither come to the aid

of the prosecution nor the appellants. Nothing much

also turns on the testimony of Constable Bhagwat

Singh, PW - 16, who is a hostile witness. The

prosecution has led overwhelming evidence to prove

that the appellant Sanjeev Kumar had been kept in a

muffled face throughout his period of custody and

hence his refusal to participate in the TIP has been

rightly held against him by the learned trial court.

26. Learned counsel for the appellants placed reliance upon

the judgement in State (Delhi Admn.) v. Balbir Chand &

Ors; 42 (1990) DLT 511. In this case, the prosecution

evidence comprised of interested witnesses related to

the deceased and no independent witnesses were

examined or cited and neither was the name of the

assailants, witnesses mentioned in the daily dairy and

there were serious contradictions in the statements of

the eyewitnesses and hence the acquittal was upheld.

We do not find as to how the said judgment has any

application in the present case when the facts of the

case are quite different. In the present case, the I.O.

had included public witnesses, though they resiled from

their earlier statements. There is also no infirmity in the

testimony of the eyewitness, PW - 4.

27. In view of the aforesaid discussion, the appeals are

dismissed and accordingly the impugned judgment and

the order of sentence both dated 22.07.1995 are

upheld.

28. The appellant in Crl. A. No. 155/1995, Sanjeev Kumar, is

in custody in Rohini Jail in case FIR No. 218/2009 u/s 307

IPC, P.S. Jahangir Puri, Delhi. The regular bail granted to

the appellant in Crl. A. No. 161/1995, Suresh Kumar,

stands cancelled and he is ordered to be arrested to be

commuted to Central Jail, Tihar for serving remainder of

the sentence. The concerned trial court is directed to

take necessary action.

29. A copy of the order be sent forthwith to the concerned

trial court for compliance. A copy of the order be also

sent forthwith to the Superintendent Jail, Tihar for

intimation to the appellant in Crl. A. No. 155/1995,

Sanjeev Kumar.

SANJAY KISHAN KAUL, J.

September 22, 2009                                 AJIT BHARIHOKE, J.
madan