Shiv Dutt @ Titu vs State
2010 Latest Caselaw 1041 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Date of Decision : 23rd February, 2010

+                   CRL.APPEAL NO.882/2005

       SHIV DUTT @ TITU                             ......Appellant
                Through:       Mr.V.Madhukar, Advocate and
                               Mr.Jayendra Sevada, Advocate.

                               Versus

       STATE                                 ......Respondent
                    Through:   Ms.Richa Kapoor, A.P.P.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     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. With reference to the testimony of Prem Prakash

PW-1, Raj Kumar PW-2 and Sahib Singh PW-5, who claimed to

be eye-witnesses to the incident, all of whom have deposed

that in front of their eyes the appellant fatally stabbed the

deceased Dharam Singh and fled, the learned Trial Judge has

returned a verdict of guilt against the appellant.

2. The learned Trial Judge has found link evidence in

the form of the recovery of a dagger Ex.P-1/A after the

appellant was apprehended and made a disclosure statement

that he could get recovered the weapon of offence and led the

police to a vacant plot and produced the dagger Ex.P-1/A

which as per the report Ex.PW-3/D of the doctor who

conducted the post-mortem, was opined to be capable of

causing the injuries noted on the person of the deceased.

3. Further link evidence inculpatory of the guilt of the

appellant is the report of the serologist as per which human

blood of the same group as that of the deceased was detected

on the dagger Ex.P-1/A.

4. It is apparent that the fate of the instant appeal has

to be decided on an appreciation of the evidence of PW-1, PW-

2 and PW-5.

5. At the backdrop it has to be kept in mind, a fact not

disputed by learned counsel for the appellant, that the place

where the deceased was stabbed happens to be a public street

opposite the shop from where the appellant carries on

business. It is a street in Block-J, Jahangirpuri, Village Bhalswa.

6. The earliest written record of the crime being

committed is to be found in the PCR form Ex.PW-16/A, duly

proved by Const.Indu PW-16, in which it is recorded that at

18:35 hours one Manoj has rung up from telephone

No.7115609 and informed that a person has been stabbed

outside House No.J-1786 Jahangirpuri i.e. house of the

appellant.

7. The next written record of the crime is the MLC

Ex.PW-15/A proved by Ms.Vineet Kiran PW-15, a record clerk,

who has deposed that she was working as the record clerk in

Babu Jagjiwan Ram Memorial (BJRM) Hospital since May 2000

and was conversant with the handwriting and signature of

Dr.Manik Gupta and that the MLC Ex.PW-15/A is in the hand of

Dr.Manik Gupta and bears his signature. The MLC records that

a patient named Dharam Singh son of Kishan Singh aged 27

years has been brought to BJRM Hospital by his brother Sahib

Singh PW-5 at 7:00 PM. It stands recorded that Dharam Singh

was stabbed on various parts of his body including the

abdomen. It is recorded that the pupils of Dharam Singh were

fixed and dilated. There was no pulse nor was the blood

pressure recordable. In simple words, Dharam Singh was

declared 'brought dead'.

8. Information received at the police control room was

transmitted over the wireless to PS Jahangirpuri and the same

was noted by the duty constable vide DD No.44-B Ex.PW-6/D,

duly proved by ASI Dharamvir Singh PW-6. As noted in DD

No.44-B it was recorded at the police station at 6:40 PM.

9. SI Paramjit Singh PW-11 was entrusted with a copy

of DD No.44-B and accompanied by Const.Ranbir Singh he left

for the place of the incident where Const.Gajender met them.

As deposed to by him, he saw blood in plenty at the road and

learnt that the injured had been removed to BJRM Hospital.

Leaving Const.Gajender at the spot he went with Const.Ranbir

Singh to the said hospital where he learnt that the injured

Dharam Singh who had been brought to the hospital by his

brother Sahib Singh was dead. He met Sahib Singh in the

hospital and recorded his statement Ex.PW-5/A and sent the

same to the police station for FIR to be registered at 9:30 PM,

a fact recorded in the endorsement Ex.PW-6/A penned by him

beneath the statement Ex.PW-5/A.

10. From the afore-noted facts it is apparent that the

crime was reported to the police control room at 6:35 PM and

hence it can be safely inferred that the crime took place on or

around 6:30 PM. We also have on record, through the medium

of MLC Ex.PW-15/A, that Sahib Singh PW-5, the brother of

Dharam Singh had transported the injured Dharam Singh from

the spot where the crime was committed to BJRM Hospital.

11. Unfortunately, we do not have on record the

distance between the spot where the crime was committed

and BJRM Hospital. Through the testimony of Sahib Singh PW-

5 we have on record that he took his brother in a rickshaw to

the hospital. Unfortunately, we do not have on record the

likely time consumed in requisitioning the time taken for the

rickshaw to paddle down the streets to reach BJRM Hospital.

12. We have used the expression 'unfortunately' for the

reason the only submission, which possibly can be urged, with

reference to the claim of Sahib Singh that he was an eye-

witness, is the possibility of Sahib Singh reaching the place of

occurrence on getting information from somebody else and

then transporting his brother to the hospital.

13. The fact that Sahib Singh has transported his

injured brother to the hospital at 7:30 PM and the crime being

committed around 6:30 PM required an inference to be drawn

that the claim of Sahib Singh that he was with his brother,

unless dented by some evidence, needs to be accepted.

14. In that view of the matter, we note the testimony of

Sahib Singh who deposed that he was carrying on business of

running a milk dairy on his land in Village Bhalswa, in J-Block

Jahangirpuri and he was a proud owner of 5 buffaloes. His

brother Dharam Singh used to reside near his dairy and the

accused was on visiting terms with his brother. The accused

used to borrow money from his brother but return the same.

There were many such money transactions. A sum of

Rs.2,40,000/- had to be paid by the accused to his brother and

that on 3.4.2002 i.e. the date of the incident he was going to

milch his cattle and when he reached near the house of the

accused i.e. J-1786 Jahangirpuri (which incidentally is the

house number given and recorded in the PCR form Ex.PW-

16/A) he saw his brother on the ground and the accused was

saying that he would teach a lesson to his brother for

demanding money. The accused had a knife in his right hand

and he yielded a stab blow on the stomach of his brother. He

raised an alarm. Many people gathered. With the help of

other persons he took his injured brother in a rickshaw to the

hospital and on the way his brother told him that he had gone

to the house of the accused to demand money and for said

reason he was stabbed. When he reached the hospital his

brother was declared dead. Police recorded his statement

Ex.PW-5/A. He deposed that since the intestines of his brother

were protruding out he removed his shirt and tied it on the

tummy of his brothers to keep the intestines intact and that

the police had taken possession of the shirt vide memo Ex.PW-

1/B and that at the spot, in his presence, the police lifted blood

stained earth and control earth from the place where the crime

was committed and as entered in the memo Ex.PW-1/A. He

deposed that the shirt Ex.P-1 shown to him in the Court was

the one which he had tied around the waist of his brother.

15. In cross-examination, Sahib Singh admitted that

nearly 200 or more persons gathered at the spot and that 5 or

6 persons had accompanied him to the hospital, 2 of whom

were Prem Prakash and Raj Kumar.

16. We note that the part of the testimony of Sahib

Singh that he happened to be passing by the place as he was

going to his dairy has not even been touched upon during

cross-examination. No attempt has been made to question the

witness on issues wherefrom the defence could urge that

Sahib Singh had no reason to be at the place as claimed by

him and that there was a possibility of Sahib Singh learning

through somebody else that his brother had been stabbed and

since Sahib Singh resides in the same area, he reached the

spot thereafter. No suggestions have been given to Sahib

Singh that he was not in the street.

17. The submission of learned counsel for the appellant

that the claim of Sahib Singh that his brother made a dying

declaration to him on the way to the hospital is false for the

reason so severe are the injuries on the person of the

deceased evidenced by the post-mortem report Ex.PW-3/A that

there is just no possibility of the deceased surviving the attack

even for a minute is meritless.

18. First of all, it may be noted that as per the post-

mortem report neither the heart nor the lungs of the deceased

were punctured. There was an extensive damage to the

intestines and the liver. There was excessive bleeding as the

intestines were badly cut. Small intestines were protruding

through the stomach muscle.

19. In the absence of any opinion being elicited from

Dr.R.K.Puniya as to what would be the likely time for which

such a injured could live and be in a position to speak,

common-sense and medical jurisprudence guides us that such

an injured person would be conscious and oriented, if not for

more, at least for 2 to 3 minutes, and would lose the

consciousness after a litre or so of blood is lost. It is at this

stage that the oxygen carrying capacity in the blood would

deplete thereby impairing the body organs which includes the

brain.

20. Thus, pertaining to the stabbing incident, in view of

the fact that the deceased and the accused have business

dealings, it would be natural for Sahib Singh to enquire from

Dharam Singh as to why did the accused stab him and to

answer the same, Dharam Singh responding that he had gone

to collect money.

21. Thus, the scope of there being any embellishment

or exaggeration in the testimony of Sahib Singh is not within

the realm of a probability and does not justify the acceptance

of the afore-noted argument. In this connection we may once

again note that this assertion of Sahib Singh in examination-in-

chief has not even been tested in cross-examination. In fact,

the same has not even been challenged.

22. It is settled law that where evidence of an eye-

witness is found credible, no corroboration needs to be found.

Thus, on the evidence of Sahib Singh we are of the opinion

that no further evidence needs to be looked into.

23. But, we have two other persons who claim to be

eye-witnesses, namely, Prem Prakash and Raj Kumar who have

also withstood the test of cross-examination.

24. There are two controversies regarding their

testimony. The first is their claim that they accompanied

Sahib Singh to the hospital vis-a-vis the categorical statement

of the police officers who reached the hospital that save and

except Sahib Singh meeting the police, no other person was

present in the hospital and that these two persons met the

investigating officer when he returned to the place of the

crime after visiting the hospital, and secondly, improvements

made by the two witnesses vis-à-vis their statements recorded

by the investigating officer under Section 161 Cr.P.C.

25. As regards the claim of the two to have

accompanied Sahib Singh to the hospital when he removed

Dharam Singh in a rickshaw, we note that Sahib Singh has

categorically deposed that many persons accompanied him

and his brother to the hospital and that two of them were Prem

Prakash and Raj Kumar. This testimony of Sahib Singh has not

been challenged. Thus, Sahib Singh's uncontroverted

testimony establishes the presence of Prem Prakash and Raj

Kumar with him.

26. Secondly, both of them had stated that they

remained at the hospital or about 30 - 40 minutes and

returned to the spot. This accounts for the police officers not

meeting the two.

27. As noted above, the crime was reported to the

police control room at 6:35 PM. It was reported at the police

station concerned at 6:40 PM. As claimed by the investigating

officer he and the constable accompanying him first went to

the spot and there from to the hospital. Sometime would

obviously be taken to pen the DD entry in the police station.

Further time would be taken to prepare a copy thereof.

Sometime would be taken to find out as to which senior police

officer is available for making inquiry. That officer would pick

up a constable. Departure entry would be made in the

register. The two would reach the spot. Further time would be

taken by them to gather information where the injured is

removed. Time would be taken to reach the hospital.

28. Thus, the mere fact that the police personnel claim

that Prem Prakash and Raj Kumar were not seen by them in

the hospital stands explained by the explanation of the two

witnesses and hence on the said fact alone it cannot be said

that the two did not go to hospital. Their claim of being

present at the spot when the crime was committed has

remained unrebutted.

29. As regards the embellishments made by the two as

also the improvements vis-à-vis their statement recorded

under Section 161 Cr.P.C. we find that the same relate to

certain facts deposed to by them surrounding the incident in

question. Their statements recorded under Section 161 Cr.P.C.

are cryptic and hence the reason the same not being found

vis-à-vis what they deposed in Court.

30. It does happen that a person responds to the

questions put and hence volunteers information with reference

to the question put. It depends upon the skill of the person

who questions. It is apparent that the investigating officer (IO)

was satisfied with the cryptic statements made by the two

witnesses that they saw the accused assaulting the deceased.

It appears that the IO did not question them in detail about the

incident and hence they never told him the facts in detail. But,

when they appeared in Court, with reference to the questions

put by the public prosecutor they have answered more.

31. Assuming that Prem Prakash and Raj Kumar have

volunteered to back up the claim of their friend Sahib Singh

and for said reason we were to exclude their testimony, but as

noted above, the testimony of Sahib Singh and his claim of

being with his brother is of unimpeachable character and thus

on his testimony alone we find sufficient evidence to convict

the appellant.

32. We find no merit in the appeal which is dismissed.

33. Since the appellant is in jail we direct that a copy of

this order be sent to the Superintendent, Central Jail, Tihar to

be supplied to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE FEBRUARY 23, 2010 dkb