Prem Raj vs State Of Delhi
2010 Latest Caselaw 139 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI



                            CRL. APPEAL NO. 99 OF 1997



%                                            Date of Decision: 13th January, 2010.

PREM RAJ                                                                 . . . APPELLANT
                                   Through:                   Mr. M.L. Yadav, Advocate.

                                            VERSUS

STATE OF DELHI                                                     . . .RESPONDENT
                                   Through:                   Mr. Pawan Sharma, Standing
                                                              Counsel.

CORAM :-
    HON'BLE MR. JUSTICE A.K. SIKRI
    HON'BLE MR. JUSTICE AJIT BHARIHOKE

        1.       Whether Reporters of Local newspapers
                 may be allowed to see the Judgment?
        2.       To be referred to the Reporter or not?
        3.       Whether the Judgment should be
                 reported in the Digest?

AJIT BHARIHOKE, J. (ORAL)

1. The appellant on being convicted for the offences punishable

under Sections 302 IPC, 307 IPC and 323 IPC vide impugned

judgment dated 30.11.1996 and consequent order on sentence of

even date has preferred the present appeal.

2. Briefly stated, the case of the prosecution is that on

17.8.1991 at around 9.00 pm, Sumer Chand, PW-1 was sitting on a

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cot outside his house at Madangir. The appellant is stated to have

come there from a `gali' and pushed PW-1, Sumer Chand. As a

result thereof, he sustained injury. When Sumer Chand raised

alarm, his son Daulat (hereinafter referred to as „the deceased‟)

came and tried to rescue him. The appellant took the deceased to

a side of the `gali' and inflicted 2/3 knife blows on his person. On

hearing the cries of the deceased, his mother Bhagwan Devi, PW-2

and his uncle Arjun, PW-3 came out of the house to rescue him.

The appellant is stated to have stabbed Bhagwan Devi as well as

Arjun and thereafter he fled away from the spot.

3. Someone, in the meanwhile, informed the police. PCR Van

arrived at the spot. By that time, the deceased had already been

taken to the hospital in a three-wheeler scooter of Kanan K.

Lingam. Officials of PCR took Sumer Chand, Bhagwan Devi and

Arjun to AIIMS in the police van. By the time police reached the

hospital, Daulat had already expired.

4. The Investigating Officer, Shri Randhir Singh, S.I.(PW-19), met

Sumer Chand (PW-1), Bhagwan Devi (PW-2) and Arjun (PW-3) in the

hospital. Bhagwan Devi was declared unfit for statement. So, the

Investigating Officer recorded the statement of Sumer Chand (PW-

1) who narrated the above mentioned facts. Investigating Officer

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appended his endorsement on the statement of Sumer Chand and

sent it to the police station for the registration of case and on the

basis of the said statement, formal FIR was registered at Police

Station Ambedkar Nagar, Delhi. Subsequent investigation was

taken over by the SHO. He along with Randhir Singh, S.I. reached

the spot of occurrence, which was got photographed. Blood stains

from three places were taken into possession vide memo

Ex.PW5/B.

5. In the meanwhile, duty Constable conveyed the information

about admission of the appellant in RML Hospital with the alleged

history of injury, which was recorded as DD No.73B. On the receipt

of the said DD report, SHO reached RML hospital and found that the

appellant had been discharged. The MLC of the appellant

Ex.PW19/A was collected. The appellant was arrested by the police

on 18.8.1991 from his house. On interrogation, he made the

disclosure statement Ex.PW1/B and pursuant to the said disclosure

statement he got recovered the weapon of offence, i.e. a knife,

which was taken into possession vide memo Ex.PW1/D. The

accused also got recovered bloodstained clothes from his house.

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6. The dead body was also sent for post-mortem examination.

As per Dr. M.S. Sagar (PW-18), the following external ante-mortem

injuries were found:

"1. stab wound left side of chest placed 10 cm. below clavicular margin and 6 cm. lateral to mid line of size 2cmx1cm. Transversely placed with clean cut everted margins going medially and posteriorly passing through 4th intercestal space cutting the intercestal muscles going through the pori cardium into left atrium valve with incise wound in the left atrium of size .9cm x .2cm.

2. stab wound left chest placed 10cm left of midline and 19cm below clavicular margin placed obliquely of size 2.5 x 1.1 cm. with clean cut averted margin going medially and downward passing through the diaphragm and entering into the anterior wall of the stomach with incise wound of size 1cm. x .3cm."

7. PW-18 opined that the above referred injuries were caused by

a sharp edged weapon and were sufficient to cause death in the

ordinary course of nature individually as well as collectively. The

post-mortem report is Ex.PW18/A.

8. Dr. M.S. Sagar, PW-18 converted pant and underwear of the

deceased in a sealed packet and handed it over to the police

Constable along with blood sample of the deceased, which were

sent along with knife Ex.P-1 and blood-stained paint and shirt of the

appellant to CFSL for serological examination and on examination,

human blood of AB Group was detected on the clothes of the

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deceased as also on the pant and bushirt of the appellant. No

blood was found in chhuri/knife.

9. On completion of the necessary formalities of investigation,

the appellant was charged for having committed the murder of

Daulat Ram and for attempting to commit murder of Arjun and

Bhagwan Devi and also for causing simple injury with a blunt force

to Sumer Chand, punishable under Sections 302, 307 and 323 IPC

respectively.

10. Incriminating circumstances appearing in evidence were put

to the appellant to seek his explanation. He denied the prosecution

case and claimed that he has been falsely implicated in this case.

The appellant examined DW-1 Tuki Ram in his defence. He has

deposed about the character of the appellant.

11. The learned trial Judge on appreciation of the evidence/record

found the appellant guilty on all three counts and convicted him

under Sections 302, 307 and 323 IPC.

12. The case of prosecution rests mainly on the eyewitness

account given by Sumer Chand (PW-1), Bhagwan Devi (PW-2) and

Arjun (PW-3). Other four purported eye witnesses of the

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occurrence, i.e., Chunni Lal (PW-4), Dharma (PW-5), Chiranji Lal

(PW-7) and Trilok Kumar (PW-8) have not supported the case of the

prosecution and they claimed to have reached at the spot after the

occurrence. They were cross-examined by the learned APP with

the permission of the Court.

13. PW-1 Sumer Chand stated in the Court that on 17.8.1991 at

around 9.00 pm while he was sitting on a cot in the lane outside his

house, the appellant came there and pushed him. As a result, his

head hit against the wall and he sustained injury and he raised

alarm. When his son, Daulat (deceased) came to his rescue, the

appellant, Prem Raj took him aside in the lane and inflicted 2/3

knife blows. When Daulat (deceased) raised alarm "Bachao

Bachao", his mother Bhagwan Devi (PW-2) and uncle Arjun (PW-3)

tried to intervene and rescue him, but both of them were stabbed

by the appellant. He further stated that Daulat was taken to the

hospital on a three-wheeler scooter. Someone informed the police

and the PCR Van came to the spot and took him, his wife and

brother Arjun to AIIMS where his statement Ex.PW1/A was

recorded. We may note that the FIR was registered on the basis of

the aforesaid statement.

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14. The witness also stated that on the next day, the appellant

was arrested and on interrogation he made a disclosure statement

Ex.PW1/B stating that he had thrown the weapon of offence, i.e.,

knife in a drain near the place of incident and pursuant to that he

got recovered the said knife Ex.P1 from the drain. The knife was

taken into possession vide memo Ex.PW1/D after the preparation of

its sketch Ex.PW1/C. The witness also stated that the appellant got

recovered his blood-stained clothes from his house, which were

taken into possession vide memo Ex.PW1/E. He was cross-

examined at length by learned defence counsel and he denied the

suggestions to the effect that he had sustained injury on the

forehead because of a fall while under intoxication and that neither

the knife Ex.P1 nor the clothes (pant and shirt of the appellant)

were recovered in his presence. He was confronted with his earlier

statement Ex. PW1/A, where the factum of his raising alarm

"bachao bachao" is not recorded. Bhagwan Devi (PW-2) and Arjun

(PW-3) have also given almost similar version about the incident.

15. Dharma (PW-5), though he turned hostile, has supported the

case of the prosecution to a certain extent by stating that on

hearing the noise, he came out in the 'gali' and he heard the family

members of the deceased shouting that Prem Raj has assaulted

them and that he ran after Prem Raj to apprehend him, but did not

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succeed. Chiranji Lal (PW-7) and Trilok Kumar (PW-8) were totally

hostile to the case of prosecution and denied the suggestions given

to them by the learned APP.

16. The learned Trial Court relying upon the testimony of the eye

witnesses Sumer Chand PW-1, Bhagwan Devi PW-2 and Arjun Singh

PW-3 as also the evidence regarding the recovery of the weapon of

offence, i.e., knife Ex.P-1 and blood-stained clothes of the appellant

Exhibits P-2 and P-3 as also the serological reports Exhibits PA to

PD held the appellant guilty on all the three counts and convicted

him.

17. Learned counsel for the appellant has assailed the impugned

judgment on several counts. His first challenge to the impugned

judgment is that the prosecution has failed to establish the motive

for the alleged crime for which the appellant has been charged.

He has submitted that a person does not commit a voluntary act of

crime without any motive. Therefore, proof of existence of a

motive is an important component to establish the guilt of the

accused and since there is no evidence whatsoever about the

motive of the crime, the prosecution case is suspect.

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18. We find no merit in this contention. It is true that normally

there is a motive behind every criminal act and the motive

therefore is an important factor to lead towards the guilt or

innocence of the accused. It is also true that motive is the state of

mind of a person, which can be inferred from the surrounding facts

and circumstances; however it is not always possible for the

investigating agency to collect evidence of motive on the part of

the accused. It is well settled that where direct evidence regarding

the commission of crime is reliable and worthy of credence, the

question of motive loses its significance and becomes more or less

academic. In the matter of Molu v. State of Haryana, AIR 1976

SC 2499, the Supreme Court, dealing with the issue of motive,

observed thus:-

"It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes, however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however, the evidence of the eye witnesses is credit-worthy and is believed by the Court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant".

19. From the above enunciated principle of law, it is obvious that

in a case based upon the testimony of ocular witnesses, the

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significant factor would be the credibility of the eye witnesses and

absence of motive would not play any role if the eye witness

account is found reliable.

20. The next submission put forth on behalf of the appellant is

that PW-1 Sumer Chand is not a reliable witness as his conduct is

highly unnatural. Learned counsel for the appellant submitted that

from the MLC, Ex. PW17/C of PW-1 Sumer Chand, it is clear that he

had suffered a simple injury. Despite that, he neither tried to save

his son nor he accompanied his injured son Daulat (deceased) to

the hospital which conduct, as per learned counsel for the

appellant, is highly unnatural and thus he has urged us to infer that

the presence of PW-1 Sumer Chand at the time of the incident is

highly doubtful and as such, he cannot be relied upon.

21. We find no merit in this contention. Working of a human mind

is complex and there can be no universal rule about the reaction

and behaviour of a person in a given situation. People do react

differently in similar situations. As per the evidence, the appellant

had initially assaulted PW-1 Sumer Chand and, thereafter, he took

the deceased aside and stabbed him with a knife. He even stabbed

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PW-2 Bhagwan Devi and PW-3 Arjun, who, on hearing alarm ran

towards the spot of occurrence to rescue the deceased. It is

possible that on seeing the appellant using the knife, PW-1 Sumer

Chand might have gone under shock or he feared for his own

safety. Thus, much significance cannot be attached to PW-1 Sumer

Chand not trying to rescue his son. We may add that from the MLC

Ex.PW17/C, it stands established that PW-1 Sumer Chand had

sustained injuries in the occurrence. Therefore, there can be no

doubt about his presence at the spot. Once there is no evidence of

any acrimony or ill-will between the complainant party and the

appellant, we find no reason as to why PW-1 Sumer Chand would

falsely implicate the appellant and let the real culprit go scot free.

22. The next submission on behalf of the appellant is that PW-2

Bhagwan Devi has stated that she came out of her house on

hearing the alarm of the deceased who was shouting that he had

been stabbed and according to PW-3 Arjun he came out of his

house on hearing the noise and by that time Daulat had already

been stabbed. From this, he has urged us to infer that neither PW-2

Bhagwan Devi nor PW-3 Arjun are the eye witnesses of the

occurrence and therefore it is not firmly established as to who

inflicted fatal knife injuries on the person of the deceased.

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23. We do not find any merit in this contention. PW-2 Bhagwan

Devi has also stated that when she came out of the house, she saw

the appellant chasing her son with a knife in his hand and when she

tried to catch him he gave a knife blow on her stomach. Similarly,

PW-3 Arjun has stated that when he came out of his house, though

the appellant had already stabbed Daulat with a knife, he noticed

him with a knife in his hand and that the appellant stabbed him with

a knife in the left side of the abdomen. From the above evidence of

PW-2 Bhagwan Devi and PW-3 Arjun, it is apparent that

immediately after the stabbing of the deceased, the appellant was

found chasing the deceased with a knife in his hand and when the

above witnesses tried to intervene, the appellant stabbed both of

them. From this, it can be safely inferred that the causing of fatal

injury to Daulat as well as the injury to PW-2 and PW-3 are part of

the same transaction and the aforesaid act was committed by the

appellant. The fact that PW-2 Bhagwan Devi and PW-3 Arjun had

suffered dangerous stab injuries with a sharp object as is apparent

from their respective MLCs Ex.PW17/B and Ex.PW17/C is sufficient

assurance of their presence at the time of occurrence and the fact

that they are telling the truth. Thus, in our view, the learned trial

Judge has rightly relied upon their testimony, which is consistent

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with the prosecution case and is corroborated by their medical

record.

24. The next submission on behalf of the appellant is that Kanan

K. Lingam who, as per the case of the prosecution, took the

deceased to the hospital in his three-wheeler scooter has not been

produced by the prosecution as a witness and this lapse on the part

of the prosecution has caused prejudice to the appellant as he has

been deprived of cross examining the said witness, which could

have brought out true facts on record. In our considered view, non

examination of Kanan K. Lingam, scooter driver, by the prosecution

is of no consequence in view of the consistent reliable evidence

given by PW-1 Sumer Chand, PW-2 Bhagwan Devi and PW-3 Arjun

who, as per record, sustained injuries in the occurrence and have

withstood the test of cross examination. We may add that even if

the prosecution had failed to examine Kanan K. Lingam, nothing

prevented the appellant from summoning him as a defence witness.

25. It is next submitted on behalf of the appellant that though the

appellant sustained injuries in the occurrence, the prosecution has

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not led any evidence to explain as to how and under what

circumstances the appellant sustained injuries. In support of this

contention, learned counsel for the appellant has referred to the

MLC Ex.PW19/D of the appellant which was prepared on the date of

incident at 10.00 pm. Thus, it is urged that the benefit of aforesaid

failure of the prosecution to explain the injury must go to the

appellant. We do not find any merit in the contention. The

appellant was given an opportunity to explain incriminating

circumstances appearing against him in the evidence. He,

however, in his statement under Section 313 Cr.P.C., apart from

denying the correctness of prosecution case, did not come out with

any explanation. It is not the case of the appellant that the

complainant party was the aggressor and he sustained injuries in

the scuffle or fight with them. Therefore, non explanation of injury

on the person of the appellant is of no consequence. Further, since

the appellant had sustained an injury, he was the best person to

know under what circumstances those injuries were caused but he

has opted to remain silent and failed to come out with his version

regarding the said injury. Learned counsel for the appellant further

submitted that as per the Punjab Police Rules, the police was under

obligation to record the substance of allegations contained in the

FIR in the daily diary Ex.PW9/A which provision has not been

complied with, therefore, a possibility of manipulation in the FIR

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cannot be ruled out. This argument is of no avail to the appellant.

It is suffice to say that above referred rule is only a rule of caution

to ensure that no manipulation in the FIR is done by the

investigating agency. Non compliance with the aforesaid rule by

itself cannot be taken as a ground to reject the otherwise reliable

eye witness account given by as many as three witnesses,

particularly when the appellant has not been able to point out

anything from the record which may raise even a slightest suspicion

of manipulation of the contents of FIR.

26. It is next submitted on behalf of the appellant that the only

witnesses who have supported the case of the prosecution i.e. PW-1

Sumer Chand, PW-2 Bhagwan Devi and PW-3 Arjun are parents and

uncle of the deceased who have an interest in the success of the

case, whereas the other independent witnesses examined in this

case, namely, PW-4 Chunni Lal, PW-5 Dharma, PW-7 Chiranji Lal and

PW-8 Trilok Kumar have not supported the prosecution story. Thus,

he has submitted that the testimony of PW-1 to PW-3 is suspect,

they being the interested witnesses.

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27. We do not find merit in this contention. There is no law which

provides that the testimony of interested/related witnesses cannot

be taken as a basis for conviction unless it is corroborated by some

independent evidence. Just because the witnesses are related to

the deceased, their evidence cannot be rejected. In the matter of

Dalip Singh v. State of Punjab AIR 1953 SC 364, while dealing

with the issue relating to the appreciation of evidence of an

interested witness, the Supreme Court observed thus:

"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan. We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."

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28. A similar view was taken in a later decision of this Court in

Masalti v. State of U.P. AIR 1965 SC 202 where Supreme Court

observed as follows:

"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice."

29. The legal position which emerges from the above referred

judgments is that there is no bar on relying upon the testimony of

partisan or interested witnesses without corroboration but the

Court is under obligation to appreciate the evidence given by such

witnesses with extra care and caution. In the instant case, all the

three eye witnesses, namely, PW-1 Sumer Chand, PW-2 Bhagwan

Devi and PW-3 Arjun have fully supported the case of the

prosecution and nothing material so as to discredit them has come

out from their cross examination. The said three witnesses

suffered injuries in the incident, therefore, even their presence at

the time of occurrence is assured. Even the hostile witness PW-5

Dharma to a certain extent has corroborated the version of the

above referred three eye witnesses by deposing that when he

came out of his house, he saw Daulat lying in an injured condition

in the `gali' and the family members of Daulat were shouting that

Prem Raj has assaulted Daulat. He further deposed that he ran

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after Prem Raj for about 20 to 30 steps but was unable to

apprehend him. The aforesaid testimony of PW-5 Dharma speaks

volumes about the conduct of the family members of the deceased,

namely, PW-1 to PW-3, as also the appellant, which is relevant

under Section 8 of the Indian Evidence Act. The fact that

immediately after the occurrence, the appellant was named as a

culprit and he was seen running away is sufficient corroboration to

the ocular version given by the above three witnesses. Thus, we

do not find any infirmity in the impugned judgment relying upon

the testimony of PW-1 to PW-3.

30. Lastly, it is submitted that even if the testimony of PW-1 to

PW-3 is believed, then also there is no justification for the

conviction of the appellant for the offence of murder punishable

under Section 300 IPC because there is no evidence to show that

the appellant had any intention or motive to cause death of the

deceased or to cause him such injury which in all likelihood would

have resulted in his death. In support of this contention, learned

counsel has drawn our attention to the evidence of the eye

witnesses and submitted that from their version, it is apparent that

the dispute started with a push given by the appellant to PW-1 and,

thereafter, when the son of PW-1 intervened, some scuffle took

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place and perhaps in the heat of moment the appellant stabbed the

deceased with a knife, which blows unfortunately proved to be

fatal.

31. No doubt, there is a very thin line of distinction between

`culpable homicide not amounting to murder‟ and `murder‟.

Intention of the accused is paramount to conclude whether the

offence falls within the purview of murder as defined under Section

300 IPC or culpable homicide not amounting to murder punishable

under Section 304 IPC. The intention being the state of mind of a

person can be inferred only from the accompanying circumstances.

As per the evidence on record, the appellant not only stabbed the

deceased twice with a knife, that too on a vital part of the body i.e.

abdomen. He also stabbed PW-2 Bhagwan Devi and PW-3 Arjun

who tried to intervene and rescue the deceased and caused them

dangerous injuries. From the aforesaid sequence of events, it can

be safely inferred that the appellant had come to the place of

occurrence duly armed with a knife with a clear intention to cause

death or to cause such injury which in ordinary course of nature

would have caused death of the deceased. Therefore, we are of

the view that the trial Court has rightly concluded that the

appellant is guilty of the offence of murder of Daulat, punishable

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under Section 302 IPC. Further, as per the medical reports, PW-2

and PW-3 had sustained dangerous injuries, therefore, we find no

infirmity in the impugned judgment holding the appellant guilty of

attempt to commit murder of said two persons.

32. The result of the above discussion is that this appeal is devoid

of any merit. We do not find any infirmity in the impugned order.

The appeal is accordingly dismissed. The appellant is on bail. He

be taken into judicial custody immediately and sent to the jail to

undergo the remaining sentence awarded by the Trial Court.

A.K. SIKRI, J.

AJIT BHARIHOKE, J.

JANUARY 13, 2010.

pst/ks

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