Ajay Kumar @ Bitoo vs State
2010 Latest Caselaw 212 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                      Judgment Reserved on: 11th January, 2010
                      Judgment Delivered on: 15th January, 2010


+                     CRL.APPEAL NO.803/2004

       AJAY KUMAR @ BITOO               ......Appellant
            Through: Mr.Pradeep Chaudhary, Advocate

                                 Versus
       STATE                                   ......Respondent
           Through:        Mr.M.N.Dudeja, Advocate


       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. Believing the testimony of Smt.Kanta Rani PW-1 the

wife of the deceased, and of Toni PW-2 the son of the

deceased, and the fact that the knife Ex.P-4 recovered

pursuant to the disclosure statement of the appellant was

found to be stained with the blood of the same group as that

of the deceased, vide impugned judgment and order dated

28.8.2004 a finding has been returned that the prosecution

has successfully established that the appellant murdered Trilok

Chand @ Triloki. The learned Trial Judge has also referred to

the fact that the T-shirt Ex.P-5 got recovered by the appellant

pursuant to his disclosure statement was stained with human

blood, but it appears that the said fact has not been used as

an incriminating circumstance, probably for the reason the

group of the blood on the shirt could not be ascertained by the

serologist.

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

the appellant urged that the wife and the son of the deceased

were planted witnesses and could not have been a witness to

the crime. To highlight the said plea, learned counsel referred

to the site plan to scale Ex.PW-20/A as per which the spot

where blood of the deceased was lifted was on the public

street outside the residence of the deceased. It was urged

that the wife and the son of the deceased deposed that the

deceased was assaulted inside the house. Counsel submitted

that the place where the assault took place was marked B in

the site plan which spot was in the verandah of the house. Our

attention was drawn to the fact that no trail of blood was

detected from the spot mark B to the spot mark A. As a limb

of this submission it was urged that the post-mortem report of

the deceased showed injuries on the chest but the two

witnesses stated that the appellant stabbed the deceased in

the abdomen. It was thus urged that it was apparent that the

two witnesses had not witnessed the assault. The third limb of

this submission was that neither the wife nor the son rescued

the deceased by removing him to the hospital as was expected

from the wife and the son; it was submitted that this

circumstance also establishes that neither the wife nor the son

were near the deceased when he was stabbed. The second

point urged to discredit the testimony of the wife and the son

of the deceased was by highlighting the improvements made

by the two vis-à-vis the statements made by them before the

police. Thirdly, it was urged that there were material

contradictions and variations inter se the testimony of the wife

and the son of the deceased, in reference whereto it was

urged that none of them could be believed as regards their

version of the crime. Lastly, on the issue of recovery of the

knife Ex.P-4 at the instance of the appellant, it was urged that

no independent witness was associated in the recovery; thus,

counsel urged that the recovery of the knife has to be ignored.

3. On the issue of the recovery of the knife Ex.P-4,

suffice would it be to state that recoveries of ordinary knives

etc. by the accused are treated as weak evidence. In the

instant case the fate of the appellant would obviously be

decided on the credibility of the testimony of the wife and the

son of the deceased; namely Smt.Kanta Rani and Toni.

4. But before that it may be noted that as per the

post-mortem report Ex.PW-15/A it is apparent that the

deceased was attacked twice on the chest. He had three other

abrasion injuries. The testimony of Dr.Jain Kumar Gupta PW-

10 and the MLC Ex.PW-10/A of the deceased establishes that

the death was instant for the reason the deceased was

declared brought dead at 10:25 PM by Dr.Jain Kumar Gupta at

the Hindu Rao Hospital. The reason why the deceased died an

instant death is to be found in the post-mortem report Ex.PW-

15/A and the testimony of Dr.Parvinder Singh PW-15. The

injury No.1 at the chest entered the peritoneum cavity after

piercing the skin and the underlined muscles and the

xiphisternum sterna. The right lobe of the liver and the

diaphragm on the right side were cut. Cause of death was

haemorrhagic shock resulting from injury No.1 which was

found to be sufficient in the ordinary course of nature to cause

death. The sketch of the knife Ex.P-4 i.e. Ex.PW-23/C shows

that the blade of the knife has a length of 18.2 cm and a

handle of 11.8 cm. At the handle the thickness of the knife is

2.3 cm and just before the tip the thickness is reduced to 1.5

cm. The knife is tapering towards the tip and suddenly

sharpens at the tip. It is apparent that the blow was struck

with considerable force resulting in the entire blade of the

knife piercing nearly the entire segment of the blade into the

body of the deceased.

5. It may be noted that the MLC Ex.PW-10/A of the

deceased Trilok records that he was brought by the driver

Kuldeep Rana of the CATS van at 10:25 PM to Hindu Rao

Hospital on 28.8.2001. It may also be noted that information

was received at the local police station through the police

control room at 9:40 that a man had been stabbed at house

No.311, A-Block, Shakurpur as noted vide DD No.60-B Ex.PW-

21/A.

6. Who made the call to the police control room?

Amrit Lal PW-8 has thrown light on the issue by deposing that

he was running a PCO/STD booth from the ground floor of his

house C-8, J.J. Colony, Shakurpur and that around 9:30 PM on

28.8.2001 Smt.Kanta living nearby his house had come to his

PCO booth regarding a murder and had telephoned at No.100.

7. Kanta PW-1 has deposed that she was the one who

had rung up the police. Thus, from the evidence of PW-8 and

from DD No.60-B Ex.PW-21/A, it is apparent that by 9:35 PM,

Kanta had informed the police about her husband being

murdered. It is apparent that she was nearby.

8. SI Rajender Dabas was the police officer to whom

copy of DD No.60-B was handed over for investigation and as

deposed to by him on reaching the spot and learning that the

injured had been removed to Hindu Rao Hospital, proceeded to

the hospital and returned to the spot after obtaining the MLC

of the injured who had died and met Kanta at the spot whose

statement Ex.PW-1/A was recorded by him and after making

the endorsement Ex.PW-21/B he forwarded the same through

Ct.Gokul Chand for FIR to be registered. The time of dispatch

of the tehrir as recorded thereon is 12:10 AM on 29.8.2001 i.e.

soon after midnight. The statement Ex.PW-1/A of Kanta has

resulted in the FIR being registered.

9. Inspector Surender Singh PW-23 was the SHO of the

concerned Police Station and as deposed to by him he reached

the spot on receiving message over the wireless of the crime

and he prepared the rough site plan Ex.PW-21/C, blood control

earth and control earth was lifted by him as recorded in the

memos Ex.PW-12/A and Ex.PW-12/B. These were lifted from

the streets outside house No.A-311, J.J.Colony, Shakurpur,

Delhi. The said spot has been marked as point 'A' on the

rough site plan as also the site plan to scale subsequently

prepared i.e. Ex.PW-20/A.

10. The conduct of Kanta and Toni referred to by

learned counsel for the appellant and the aberrations in their

testimony pointed out require this Court to note the testimony

of the two witnesses.

11. Kanta Rani PW-1 deposed that she was married to

late Shri Trilok Chand and they resided at house No.A-311,

Shakurpur, J.J.Colony, Delhi and that at 6:30 PM on 28.8.2001,

the appellant came to the house and enquired about her

husband who was not in the house. Later on, Toni, her son

told her that the appellant was beating her husband in the

park. She went to the park and met her husband whose vest

was torn. Her husband informed her that the appellant had

assaulted him. She and her husband returned home and at

around 9:30 PM appellant, in a drunken condition, came to

their house and abused her husband who told appellant not to

abuse him. Appellant asked Toni to give him cold water. Toni

went to the fridge to bring water. Appellant gave knife blow at

the abdomen of her husband and by the time she could reach

out to her husband, he gave a second knife blow. Her husband

caught the appellant and took him outside the house so that

the appellant may not assault Kanta Rani and her son Toni.

She raised a hue and cry. People gathered. She went to a

PCO booth and informed that police control room. An

ambulance came and took her husband to Hindu Rao Hospital

where he died.

12. On being cross-examined as to why she did not

take her husband to the hospital, she stated that she

persuaded some TSR drivers to take her husband to the

hospital but they refused and that an ambulance came and

removed her husband to the hospital informing that they

would be taking him to Jahangir Puri. She went to the hospital

at Jahangir Puri but could not find her husband. She later on

learnt that her husband was taken to H.R. Hospital. She went

to said hospital but was not allowed entry in the Emergency

Ward and that she returned after about half-an-hour.

13. Vis-à-vis her statement Ex.PW-1/A we note that the

cross-examination brings out 4 variations. They may be called

improvements. The first is that it is not recorded in her

statement Ex.PW-1/A that Toni told her that the appellant had

assaulted her husband in the park. It is recorded that her

husband told her that the appellant had assaulted him in the

park. The second is that in her statement Ex.PW-1/A it has not

been recorded that she went to the park and returned with her

husband. The third is the different manner in which Ex.PW-1/A

records how her husband was assaulted. The difference is that

while deposing in Court she stated that appellant inflicted a

knife blow on the abdomen of her husband and before she

could come to the rescue of her husband, the appellant

inflicted the second blow. In the statement Ex.PW-1/A it is

recorded that the appellant took out a chhuri from behind and

started attacking her husband with intention of killing him.

Lastly, in her statement Ex.PW-1/A she has not stated that her

husband caught the appellant and took him out so that he may

not assault her or Toni.

14. Toni PW-2, deposed that on 29.8.2001 he was a

student of class VI and was sitting on the bed in the house with

his mother when appellant came at around 9:30 PM.

Thereafter he saw the appellant beat his father in the park.

The vest of his father was torn and his father came back and

took dinner. Appellant returned at about 9:30 PM and asked

his father to accompany him to the park. Appellant asked him

to bring water and after drinking water, threw the glass

towards the bed. His father asked him to go inside. His father

cried. Appellant stabbed his father in the verandah. His father

took the appellant outside. His mother threw a danda at the

appellant. Appellant ran away. His mother informed the

police. His father was removed to the hospital by the police

where he died.

15. It may be noted that the improvements made by

Toni vis-à-vis his statement recorded by the police are that in

the said statement it is not recorded that he saw his father

being beaten in the park by the appellant. It is also not

recorded that his father had taken dinner or that his father

asked him to go inside.

16. With reference to the deposition of Toni it is

apparent that he has mumbled jumbled the facts pertaining to

his father being beaten in the park and what happened in the

house at 9:30 PM. As is noted from his statement he

commences his deposition by stating that he was present in

the house at 9:30 PM with his parents and that the appellant

came. He follows it up by saying that he saw his father being

beaten in the park and that his father came back home and

after taking dinner he i.e. Toni lay down on the bed at 9:30 PM

and the appellant came and asked his father to accompany

him to the park.

17. Toni was aged 13 years (a fact noted in his

testimony) when he deposed in Court on 6.5.2002. It is

apparent that he was aged about 12 years when the incident

took place. The inchoateness and variations and

improvements in the testimony of Toni have to be considered

in light of his tender age as also the fact that he comes from a

humble socio-economic background.

18. It is time to deal with the contentions urged by

learned counsel for the appellant which have been noted in

para 2 above. The first plea urged was that the site plan

Ex.PW-20/A shows that blood was lifted from the street outside

and there was no trail of blood from the house to the street

evidences that Trilok Chand was stabbed on the street and not

inside the house as claimed by Kanta and Toni and thus it is

doubtful that the two were eye witnesses.

19. The site plan Ex.PW-20/A shows that the spot

wherefrom blood was lifted from the street is hardly 4 feet

away from the boundary of the house and the said spot is

about 10 feet from the spot inside the verandah where Trilok

Chand was stated to be stabbed. From the testimony of Kanta

and Toni it is to be revealed that Trilok Chand moved out when

he was stabbed. From the post-mortem report Ex.PW-15/A it is

revealed that apart from 3 abrasions Trilok Chand had a stab

wound, entry point whereof was 15 cm below the inner to left

nipple and 11 cm above umbilicus and the second was and

incised wound, entry point whereof was near injury No.1. This

incised wound was not very deep. Injury No.1 had pierced

deep into the abdomen, which we all know is a cavity. It is

apparent that when Trilok Chand was stabbed fatally i.e. when

injury No.1 was inflicted, the knife pierced through the

peritoneum cavity and the xiphisternum sternal and went on

to pierce the liver. The knife was travelling at an angle

downwards i.e. towards the abdomen. Thus, the blood did not

ooze out. It may be highlighted that the post-mortem report

records that the internal examination revealed that the

abdomen peritoneum cavity was full of blood. This explains no

trail of blood from the verandah to the spot A on the street

wherefrom blood was lifted.

20. The second plea that the post-mortem report

revealed two stab wounds on the chest whereas the witnesses

deposed that the deceased was stabbed in the abdomen

requires an inference to be drawn that the two were not eye

witnesses has to be rejected for the reason, as noted above

the situs of the entry point of the two stab wounds is 15 cm

below the inner to left nipple and 11 cm above umbilicus.

Technically, the two spots are the chest region but are fairly

close to the abdominal region. Besides, the wife and the son

of the deceased are not well-conversant with the nuances of

terms. We say so for the reason the testimony of Kanta who

stated that she does not understand what an ambulance

means but knows what it is shows her innocent knowledge of

words and phrases. The innocence of Toni has been noted by

us in the preceding paras while commenting on his deposition.

Thus, nothing turns on the issue of the two deposing that

Trilok Chand was stabbed in the stomach but the actual

injuries are little above.

21. The third limb of the submission predicated on the

conduct of Kanta and Toni ignores the fact that Amrit Lal PW-8

has categorically deposed that Kanta came to his PCO Booth at

9:30 PM to ring up the police and inform about a murder. This

is around the time the incident took place evidenced by the

fact that DD No.60-B at the local police station records a

stabbing incident at the spot in question. Kuldeep Rana PW-18

the in-charge of the CATS van has corroborated that even he

received wireless message at around 9:30 PM about the

stabbing of a person and that he transported the patient from

premises No.A-311, Shakurpur to Hindu Rao Hospital. That

Kanta did not accompany her husband to the hospital and

even did not meet the investigating officer at the hospital has

been explained by her when she stated that by the time she

returned from the PCO Booth an ambulance had taken her

husband to the hospital and that prior thereto she had

requested TSR drivers to take her husband to the hospital, but

none agreed. She stated that she thought that her husband

was being taken to the hospital at Jahangirpuri and thus she

went to said hospital but learnt that her husband had been

removed to Hindu Rao Hospital and when she reached there,

nobody allowed her entry into the casualty and she returned

home where she met the police. As regards Toni, it may be

noted that he was a child studying in class-V and his conduct

of not accompanying his father is not abnormal or irrational.

Thus, the third limb of the first submission made by learned

counsel for the appellant is rejected.

22. The second submission pertaining to the

improvements in the testimony of Kanta and Toni require a

look at the so called improvements made by Kanta as noted by

us in para 13 above and those attributable to Toni as noted in

para 15 above. Even to a layperson it is apparent that these

are natural variations when an illiterate lady and a young boy,

both coming from humble socio-economic background narrate

about an incident which had taken place a year ago. None of

them are of a kind which discredit the two witnesses. The

embellishments are at the fringe facts and not pertaining to

the facts in issue i.e. material facts.

23. We see no material contradictions and variations in

the testimony of Kanta and Toni. As noted in para 16 above it

is apparent that Toni has mumbled-jumbled some facts, in

respect whereof we have penned our comments in para 17

above and hence we reiterate no further.

24. It is to be noted that the stabbing incident took

place at around 9:30 PM in the house of the deceased. The

wife and the minor son of the deceased are the natural

witnesses inasmuch as they are expected to be in the house at

9:30 PM.

25. Ignoring the recovery of the knife Ex.P-4 pursuant

to the disclosure statement of the appellant, in light of the

testimony of the various witnesses noted herein above and in

particular that of Kanta and Toni who are eye-witnesses, we

find no merit in the appeal which is dismissed.

26. Since the appellant is in jail, copy of this order be

sent to the Superintendent, Central Jail, Tihar, to be made

available to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE JANUARY 15 , 2010 mm / dk