Pawan vs State
2010 Latest Caselaw 3667 Del

             THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment Reserved on: 03.08.2010
                                    Judgment Pronounced on: 09.08.2010

+            CRL.A. 259/1997

PAWAN                                                     .....Appellant

                                    - versus -
STATE                                                     ..... Respondent

Advocates who appeared in this case:

For the Appellant       : Ms Kamna Vohra, Amicus Curiae
For the Respondent      : Mr Sanjay Lao, APP

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN

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

     2.    To be referred to the Reporter or not?                    Yes

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

V.K. JAIN, J

1. This appeal is directed against the judgment dated

18th February 1997 and Order on Sentence dated 19 th

February 1997, whereby the appellant was convicted under

Section 302 of IPC and was sentenced to undergo

imprisonment for life and to pay a fine of Rs1000/- or to

undergo R.I. for six months in default.

2. The case of the prosecution, in brief, is that in the

night intervening 26th/27th July 1994, deceased Shankar was

sleeping in the street in the varanda of a medical store. The

appellant, who came later after seeing the movie, also went to

the street to sleep there and later committed murder of the

deceased, giving a knife blow in his abdomen.

Eye Witnesses account

3. The case of the prosecution is based primarily on the

ocular testimony of complainant Faudari Kumar and his

roommates Chhotu, Ashok Kumar, Bhopal and their landlord

Suresh Chand. It is also the case of the prosecution that after

committing murder, the appellant absconded from the spot

and later when he was arrested, the knife used for committing

the murder was got recovered by him from the bushes near a

drain in Chirag Delhi.

4. The complainant Faudari Kumar brother of the

deceased came in the witness box as PW-5 and stated that in

the month of July, 1994, he was residing on the first floor of

House No. 180, Chirag Delhi along with Bhopal, Chhotu,

Ashok and his younger brother deceased Shankar. He further

stated that on 24th July 1994, the appellant Pawan Kumar

gave a rupee 10 note to the deceased and asked him to bring

half litre of milk. When the appellant asked the deceased to

return the balance amount of Rs4.50 left with him after

purchasing the milk, he claimed that the appellant himself

owed that much amount to him. A quarrel ensued between

them on this issue, but both of them were pacified, though the

appellant threatened to settle the score with the deceased. He

further stated that on 27th July 1994, the appellant came back

at about 2.00 AM after seeing a movie, brought his bed from

the first floor and went to sleep in the street where the

deceased Shankar was already sleeping in front of a medical

store. On hearing the noise of the deceased and the appellant,

he along with Bhopal, Ashok and Chhotu came to the ground

floor and found that the appellant had stabbed his brother

Shankar with a knife and ran away from there. He removed

Shankar to hospital where he was declared dead. PW-4

Bhopal, who was residing in the same premises along with the

complainant, Chhotu, Ashok, deceased Shankar and the

appellant stated that at about 2.00 AM they heard a noise and

ran towards the ground floor and found that the appellant had

stabbed the deceased with a knife and ran away from there.

In cross-examination, he stated that he was at a distance of

10-15 paces when the appellant stabbed Shankar with knife.

He chased the appellant, but could not catch hold of him.

PW-3 Ashok Kumar, who was residing with the complainant

and others in that house, corroborated the deposition of PW-4

and PW-5 and stated that in the night, the appellant and the

deceased were sleeping on the ground floor and he saw that

the appellant thrust the knife in the abdomen of Shankar and

fleeing away from there. However, in cross-examination, he

admitted that when he reached the ground floor, deceased

Shankar was lying there, smeared with blood. He also claimed

that all of them had come down together after hearing the

noise. PW-2 Chhotu stated that when they came downstairs

on hearing the noise, he saw the appellant fleeing from there.

5. PW-1 Suresh Chand is the landlord of the premises

in which the above referred witnesses were residing together.

He confirmed that in July 1994 Faudari Kumar, deceased

Shankar, the appellant Pawan, Bhopal Rai and Chhotu were

living in two rooms as his tenants. He also identified the

appellant Pawan Kumar in the Court. He stated that he woke

up in the night at about 2.00-2.30 AM and saw deceased

Shankar lying in the street and blood oozing out of his

stomach. He also found 6-7 Biharis, who were his tenants

standing near him. Obviously he was referring to Faudari

Kumar, Bhopal and Chhotu as his tenants, who were seen by

him standing near the deceased. In cross-examination, he

stated that Faudari Kumar and Chhotu had told him that the

appellant Pawan had run away after inflicting knife injuries on

the person of deceased Shankar.

Recovery of weapon

6. PW-16 SI Govind Sharma is the IO of the case, who

carried out investigation. He stated that while searching for

the appellant along with the complainant, he found him at the

bus stand of Swami Nagar and arrested him. The appellant

made disclosure statement Ex. PW5/G and got recovered the

knife Ex. P-3 from the bushes near Ganda Nala, Chirag Delhi.

However, no blood was found on the knife, when it was

examined in CFSL.

Motive

7. The motive for the murder is alleged to be a quarrel

which took place between the appellant and the deceased a

few days before this incident when the deceased refused to

return a sum of Rs 4.50 which was left with him after

purchasing milk for the appellant. Not only the complainant

but also PW-2 Chhotu, PW-3 Ashok Kumar and PW-4 Bhopal

specifically stated about this quarrel between them.

Cause of death

8. PW-8 Dr A.K. Sharma conducted postmortem on the

dead body of deceased Shankar on 27th July 1994 and found

the following injuries:-

"Penetrating stab incised wound with protruded abdomen was placed horizontally on the middle front of abdomen. After reducing omentum the size of the wound was 3x1 cm x cavity deep, its right outer angle was acute, left outer angle was obtuse. It was 5cm above the umbilicus and

11cm below the apigastrium. On exploration of wound, it was found directing backwards slightly upwards and passed through following structures and terminating finally injuring abdominal aorta: skin subcutaneous tissues - muscles peritoneum transverse mesocolon -

duodenum and Aorta. Peritoneal cavity contained about 3.5 liter of blood. Total depth of the wound was 11cm."

Cause of death was found to be hameorrhagic shock

following injury No.1 caused by penetrating sharp edged

weapon and the injury was opined to be sufficient to cause

death in the ordinary course of nature. He also examined the

weapon sent to him for opinion and was of the view that the

injury on the dead body of Shankar could have been caused

by the weapon produced before him by SI Govind Sharma.

Version Of the Appellant

9. In his statement under Section 313 Cr.P.C., the

appellant admitted that in July 1994 he along with Faudari

Kumar, Dinesh, Ashok and deceased Shankar was residing as

a tenant in two rooms on the first floor of House No. 180,

Chirag Delhi, which is owned by Suresh Chand. He, however,

denied having any quarrel with the deceased. He admitted

that in the night intervening 26th/27th July 1994 he came

back in late hours after seeing movie and went to the street to

sleep. He also admitted that deceased Shankar was also

sleeping in the street in the varanda of a medical store. He,

however, denied having stabbed the deceased and run away

from there. He denied that he was arrested from the bus

stand of Swami Nagar and claimed that he himself had gone to

the Police Station to inform police about the death of Shankar.

The alleged recovery of knife was also denied by him.

Analysis of evidence

10. It is an admitted case that the deceased, the

appellant and the eye-witnesses of this case were living

together in two rooms let out to them by PW-1 Suresh Chand.

It is also an admitted case that in the night of 26th/27th July

1994, the appellant had returned late after seeing a movie and

had gone to sleep downstairs in the street. It is also an

admitted case that deceased Shankar was already sleeping in

the street when the appellant went there to sleep.

11. We see no reason to disbelieve the ocular testimony

of PW-3 Ashok Kumar, PW-4 Bhopal and the complainant PW-

5 Faudari Kumar. The appellant does not claim any enmity or

ill-will between him or any of these witnesses. Hence, none of

them had any motive or reason to depose falsely against him

and implicate him in the murder of deceased Shankar. It is

true that PW-5 Faudari Kumar happens to be the brother of

the deceased but, his testimony cannot be rejected merely

because he happens to be related to the deceased. A relative

cannot be considered to be an interested witness merely on

account of his relationship with the deceased unless it is

shown that he had a grudge against the accused and,

therefore, had a motive to drag him in a false case. In fact a

relative of the deceased would ordinarily be the last person to

screen the real offender and implicate the innocent person. A

person can be said to be interested only if it is shown that he

had a motive, direct or indirect to get the accused somehow

convicted, on account of a previous animus, which he had

with him. Even the testimony of an interested witness is not

per se unworthy of credence, the only rule of prudence being

that it should be subjected to a careful scrutiny, and should

be accepted, if, on such scrutiny it is found to be reliable and

probable. Since the complainant Faudari Kumar admittedly

was residing in House No. 180, Chirag Delhi and the site plan

Ex. PW16/B shows the incident took place in the varanda of a

house situated just opposite that house, at about 2.00 AM

when the inmates of the house are expected to be present

there, his reaching the place of occurrence immediately on

hearing the noise of quarrel cannot be disputed. In any case,

the testimony of Faudari Kumar finds corroboration from the

deposition of other eye-witnesses, who were natural witnesses

of the incident since all of them were residing there and had

also reached the spot on hearing the noise.

12. According to PW-1 Suresh Chand, Faudari Kumar

and Chhotu had told him that the appellant had run away

after inflicting knife injuries on the person of deceased

Shankar. The statement made by Faudari Kumar to PW-1

soon after the incident, being his previous statement made

immediately after the incident is corroborative of his

deposition in the Court. Any former statement made by a

witness at or about the time when the incident took place

becomes usable as of corroborative value under Section 157 of

the evidence Act. Though such statements are not part of the

main transaction, they have a probative value for corroborative

purpose, if made without delay. If delay was involved in

making such a statement, its utility would be restricted to

confronting the maker for contradicting him. Such a statement

would then have no corroborative value. Whether the

statement was made at or about the time of the incident can

be decided on the facts of each case. No hard and fast rule can

be laid down for it. The principle is that the time interval

between the incident and the utterance of the statement

should not be such as to afford occasion for reflection or even

contemplation. If the time interval was so short as between the

two that the mind of the witness who made the statement was

well connected with the incident without anything more

seeping in, such statement has credence, and hence can be

used, though not as substantive evidence, as corroborating

evidence, on the principle contained in Section 157 of the

Evidence Act.

13. PW-2 Chhotu also corroborated the deposition of the

complainant Faudari Kumar to some extent when he stated

that when he reached the ground floor on hearing the noise,

he saw the appellant fleeing from there. So far as PW-3 Ashok

Kumar is concerned, he fully corroborated the deposition of

Faudari Kumar when he said that on reaching the ground

floor, he saw that Pawan Kumar gave knife blow in the

abdomen of Shankar and fled from there. He also confirmed

that there was light at the place where the incident took place.

Hence, the witnesses were in a position to see that part of the

incident which took place in their presence. He specifically

denied the suggestion that he did not witness the deceased

being stabbed by the appellant. PW-4 Bhopal also

corroborated his testimony since he stated that he had seen

the appellant stabbing Shankar with a knife and running away

from there. He also chased the appellant, though he could not

catch him. The ocular testimony of PW-3 Ashok Kumar, PW-4

Bhopal and PW-5 Faudari Kumar which finds some

corroboration from the testimony of PW-1 Suresh Chand and

PW-2 Chhotu is sufficient to prove that the appellant had

stabbed deceased Shankar with a knife and had then run

away from the spot.

14. Though the issue on which the quarrel took place

seems to be rather petty, we need not go further in this aspect

since the motive for committing the crime becomes immaterial

in view of the ocular testimony of PW-3 Ashok Kumar, PW-4

Bhopal and PW-5 Faudari Kumar. We need to appreciate that

motive is something which remains in the mind of the culprit

and, therefore, it may not be possible to prove it during trial.

15. No doubt if there is clear proof of motive for the crime

that lends additional support to the finding of the court that

the accused was guilty but absence of clear proof of motive

does not necessarily lead to the contrary conclusions. No

proof can be expected in all cases as to how the mind of the

accused worked in a particular situation. Sometimes it may

appear that the motive established by the prosecution is a

weak one but that by itself is not sufficient to lead to any

inference adverse to the prosecution. Most of the times it is

only perpetrator of the crime alone who knows as to what

circumstances prompted him to taking a course of action

leading to the commission of crime. The mere fact that the

prosecution failed to translate the mental disposition of the

accused into evidence does not necessarily mean that no such

mental condition existed in his mind.

16. In Nathuni Yadav & Ors. v. State of Bihar: AIR1997

SC 1808 the Supreme Court, inter alia, observed as under:-

"Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act.

Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable."

17. The testimony of the prosecution witnesses shows

that the appellant had run away from the spot though he was

chased by some of them. There is no explanation from the

appellant as to why he fled from the spot immediately after the

murder of the deceased. Though the appellant claims that he

himself had gone to police station, to inform the police, this

obviously is false, since the police had already been informed

and in fact was looking for him at that time.

18. The testimony of PW-16 SI Govind Sharma shows

that the knife Ex.P-3 was got recovered by the appellant from

under the bushes near Chirag Delhi drain. It was opined by

PW-8 Dr A.K. Sharma, who conducted the postmortem on the

dead body of the deceased that death could have been caused

by the weapon produced before him. Absence of blood on the

knife alleged to have been recovered from the appellant may

not be material considering that the appellant was not

arrested immediately after the incident and, therefore, had

ample opportunity to remove blood stains, before throwing the

knife in the bushes. Hence, even if we exclude the recovery of

knife from consideration, the ocular testimony of the witnesses

coupled with the fact that: (i) he had a quarrel with the

deceased a few days before this incident (ii) he admittedly went

to sleep at the same place where the deceased was sleeping (iii)

he ran away from the spot after the murder; proves it beyond

reasonable doubt that he had killed the deceased using a knife

for this purpose. If the witnesses produced by the prosecution

are found to be reliable and trustworthy and inspire

confidence in the mind of the Court, failure to recover the

weapon of offence may not be fatal to the prosecution case.

19. It is true that only a single knife blow was given to

the deceased. However, in the facts and circumstance of the

case, that by itself does not bring the case of the appellant

with the purview of explanation IV to Section 300 of IPC which

is punishable under Section 304 thereof. The prerequisite

condition for the applicability of explanation IV to Section 300

of IPC are that (i) the culpable homicide is committed without

premeditation (ii) it is committed in a sudden fight (iii) it is

committed in the heat of passion upon sudden quarrel and (iv)

the offender does not take any undue advantage and does not

act in a cruel and unusual manner. In such a case there is no

deliberation or determination to fight with each other and a

fight takes place at the spur of the moment for which both the

parties need to share the blame. The number of wounds

suffered by the deceased alone is not a decisive factor in such

cases, the necessary requirement being that the accused must

act suddenly and the occurrence should not be premeditated

or preplanned.

20. The single blow to the deceased may in some cases

entail conviction under Section 302 of IPC whereas in other

case it may fall within the purview of Section 304 thereof. The

question with regard to the nature of offence needs to be

determined on the facts and circumstances of each case, the

guiding factor being the nature of injury, whether it is on a

vital or non-vital part of the body, the weapon used for offence,

ferocity of the attack, whether the injury was inflicted during

the struggle or grappling, circumstance and manner in which

the injury is caused and all other relevant factors which would

help the Court in determining the intention or knowledge of

the offender.

21. The intention and knowledge are two separate states

of mind and knowledge of the consequences of the act is not

the same thing as the intention that those consequences

should ensue. Ordinarily where a person commits an act, he

is presumed to know the natural consequences of the act

committed by him. The mere fact that the injury caused to the

deceased is sufficient to cause death in the ordinary course of

nature does not necessarily mean that the accused intended to

cause the injury of that nature. Ordinarily, when an accused

inflicts a blow with a deadly weapon, such as a knife, the

presumption is that he intended to inflict injury caused by

him. But, there may be circumstances which could rebut

such a presumption.

22. In State of Karnataka v. Vedanayagam (1995)1 SCC

326 the accused inflicted a single knife blow on the chest

resulting in instant death and the trial court convicted him

under Section 302, but, on appeal being preferred, the High

Court of Karnataka altered the same to one under Section 304

Part II. When the matter was brought to Supreme Court,

judgment of the trial court convicting the accused under

Section 302 was restored observing "there is no doubt

whatsoever that the accused intended to cause that particular

injury on the chest which necessarily proved fatal. Therefore,

Clause Thirdly of Section 300 IPC is clearly attracted.

23. In Mahesh Balmiki alias Munna v. State of M.P.

1999 Cri. LJ 4301 the accused gave a single fatal blow with

knife on the chest on the left side of the sternum between the

costal joint of the 6th and 7th ribs, fracturing both the ribs and

track of the wound going through the sternum, pericardium,

anterior and posterior after passing the ribs and thereafter

entering the liver and perforating a portion of stomach. There,

conviction under Section 302 of the Penal Code was upheld by

the Supreme Court.

24. In the case before us, we have no evidence that there

was a fight between the appellant and the deceased. The only

evidence we have is that the witnesses heard a noise of the

appellant and the deceased and when they reached

downstairs, the appellant was found stabbing the deceased

with a knife and then running away from the spot. It has

come in evidence that the appellant took his bed for going

downstairs to sleep. There is no evidence that the appellant

normally used to sleep downstairs at the same place where the

deceased was sleeping. Therefore, his going to the same place

where the deceased was already sleeping is an indicator of

preplanning in his mind. A person going to sleep late in the

night is not expected to keep a knife with him. The very fact

that the appellant carried and then used a knife, at the dead

hours of the knife and that too after going downstairs on the

pretext of going to sleep there shows that his intention was to

use that knife to commit murder of the deceased. A perusal of

the MLC of the appellant shows that no injury was found on

his body. The postmortem report of the deceased also does

not show injuries other than the knife wound. This would

indicate that in fact there was no fight between the appellant

and the deceased. The MLC of the deceased Ex. PW2/A shows

that he was brought dead to the hospital. This would mean

that his death was instant and in all probability at the place of

occurrence itself. The stab wound was given in the abdomen

of the deceased, which is a vital part of the body. The wound

was found to be 11 cm deep. Thus the knife blow was given

with such a ferocity and such a force that the deceased died

instantly as a result of the injury caused to him. The relations

between the appellant and the deceased were not cordial as

stated by the eye-witnesses. There is no evidence of any

grappling between the appellant and the deceased. In these

circumstances, it is difficult to bring this case within the

purview of explanation IV to Section 300 of Indian Penal Code.

In any case, it was not the argument before us that the case of

the appellant was covered under Section 304 of IPC.

CONCLUSION

25. For the reasons given above, we find no merit in the

appeal. During the course of arguments, we were informed

that the appellant is absconding. He be, therefore, arrested

and be committed to prison to undergo the remaining part of

the sentence awarded.

The appeal is dismissed.

(V.K. JAIN) JUDGE

(BADAR DURREZ AHMED) JUDGE

AUGUST 09, 2010 Ag/RS