Shankar & Anr. vs State (N.C.T) Of Delhi
2010 Latest Caselaw 3144 Del

            THE HIGH COURT OF DELHI AT NEW DELHI

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                               Judgment Reserved on: 06.07.2010
                               Judgment Delivered on: 07.07.2010
+             CRL.A 273/1997

SHANKAR & ANR.                                      ..... Appellants

                               - versus -
STATE (N.C.T) OF DELHI                              .....Respondent

Advocates who appeared in this case:
For the Appellant   : Mr Vikran Sarin
For the Respondent  : Mr Lovkesh Sawhney

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 and

Order on Sentence dated July 5, 1997, whereby the appellants

were convicted under Sections 449 and 302 of IPC read with

Section 34 thereof and were sentenced to undergo R.I. for life

and to pay fine of Rs.2,000/- each or to undergo R.I. for one

year each in default under Section 302/34 of IPC and were

further sentenced to undergo R.I. for 5 years each and to pay

fine of Rs.1,000/- each or to undergo R.I. for 6 months each in

default under Section 449/34 of IPC.

2. On 20th December 1993 at about 8.42 AM Police

Control Room informed Police Station Srinivas Puri that one

person had been stabbed in 11/25 Nehru Nagar and had died

on the spot. The information was recorded vide DD No. 3A of

the Police Station. On receipt of copy of DD, Inspector Ram

Kishan, SHO Police Station Srinivas Puri went to the spot and

found dead body of deceased Joginder Kumar in the house.

He recorded the statement of Hem Lata, wife of the deceased,

who met him on the spot. Hem Lata stated that her husband,

who was working a lottery shop, had borrowed Rs.3,000/-

from Mohan Lal, who was engaged in the business of lottery in

Lajpat Nagar. She also stated that for the last 3-4 days Mohan

Lal and his son Shankar had been visiting their house and

demanding the amount of Rs.3,000/- borrowed by her

husband and that they had been seeking time from him for

repayment of the loan. She also stated that on 19th December

1993 at about 10.00 PM, when all of them were present in the

house, Mohan Lal and Shankar knocked at the door, which

was opened by her husband Joginder. On coming inside,

Mohan Lal and Shankar started beating her husband.

Shankar was carrying a long Suan like weapon with him.

When she came forward to save her husband, Mohan Lal

pushed her as well as her mother and slapped them. Mohan

Lal then caught the hands of her husband, whereas Shankar

gave blow, using a Suan like weapon, on the left side of his

chest, as a result of which her husband fell on the cot.

Thereafter, both of them left after threatening her and her

mother-in-law, in case they reported the matter to the police.

While leaving, they bolted the door from outside. Thinking

that her husband had slept, she did not raise alarm in the

night. In the morning she found her husband dead and also

noticed blood on the left side of his chest. His vest and shirt

were also found soaked with blood. She and her mother-in-

law raised alarm and knocked at the door, which was opened

by her maternal uncle who was residing in her neighbourhood.

She claimed that Shankar and Mohan Lal had murdered her

husband.

3. The prosecution examined 16 witnesses in support of

its case. No witness was examined in defence. PW-3 Shanti

Devi, PW-4 Hem Lata, PW-14 ASI Rasal Singh, PW-15

Inspector Ram Kishan and PW-16 Dr. L.C. Gupta are the

material witnesses.

4. PW-3 Shanti Devi, who is the mother of the deceased,

stated that on 19th December 1993, both the accused came to

their house at about 10 PM and demanded money from their

son. They gave beating to him. When she and Hem Lata

intervened, they pushed them, as a result of which they fell

down. The accused Shankar was having a Suan in his hand

and he gave a Suan blow on the chest of her son Joginder. At

that time, accused Mohan Lal had caught hold of Joginder.

Her son fell down on receiving injury. Both the accused left

after threatening them not to report the matter to the police.

She further stated that finding that Joginder had slept, she

and Hem Lata also went to sleep. In the morning they found

Joginder lying dead. His vest was soaked with blood. She

identified Ex.P-1 as the Suan with which her son was stabbed.

In cross-examined she stated that she became unconscious

when she fell after the accused had pushed her.

5. PW-4 Smt. Hem Lata, wife of the deceased,

corroborated the deposition of her mother-in-law and stated

that she was also slapped by accused Mohan Lal. She also

identified Ex.P-1 as the Suan with which her husband had

been stabbed. In cross-examination, she stated that her

husband had neither cried nor raised an alarm, when he was

stabbed with Suan and that she did not go near her husband

to see the injury on his person. She also stated that she did

not try to see her husband in the night of 19th December 1993

and they did not inform anyone in the night, when her

husband was stabbed with Suan.

6. PW-14 ASI Rasal Singh had stated that while in

police custody, the accused Shankar led them to a drain near

PGDAV College and got recovered one Gupti from there, after

taking it out from the bushes. According to him Ex.P-1 is the

Gupti/Suan got recovered from the accused. PW-15 Inspector

Ram Kishan is the IO of the case. He has corroborated the

deposition of PW-14 regarding recovery of Gupti and has

identified the weapon Ex.P-1.

7. PW-16 Dr. L.C. Gupta conducted the postmortem on

the dead body of the deceased and found the following injuries

on his person:-

"incised stab wound of elliptical shape of 1.2X3cmXchest cavity deep placed at left side front of chest, 2 cm above and outer to left nipple, in 3rd intercostals space, it was 13 cm below mid clavicular point, lower end of wound was contused and margins of wound were clear cut, well- defined and regular.

2. Abrasion of 1.5X.6 cm at left side base of nose.

3. Cresentric abrasion present over outer part of right side forehead, right mallar of face, right side face cheek, right side forehead, back of right forearm. Skull was NAD, brain was pale, cerebral vessels were empty. Orbital nazal, aural cavities NAD. Mouth, tongue and pharynx Neck, Lyranx and thyroid and other neck structures NAD. Chest. On the right side of front of chest in continuation to injury No.1 a treack is communicating from middle lobe of lung (lingual part) in which a clear cut was present of size 1X1.5 cm and it was further communication to left ventrical then right ventrical after crossing inner verticular septum."

According to him cause of death was internal

haemorrhage shock, due to injury No.1 to heart and lung. He

has also opined that injury No.1 could be inflicted with the

weapon Ex.P-1.

8. In their statements under Section 313 Cr.P.C. the

appellants denied having lent money to deceased Joginder and

having gone his house on 19th December, 1993. Both of them

claimed to be innocent.

9. The trial court convicted the appellants believing the

testimonies of PW-3 Shanti Devi and PW-4 Hem Lata, though

the evidence produced by the prosecution regarding recovery

of the Suan/Gupti Ex.P-1 was disbelieved.

10. According to PW-4 complainant Hem Lata, her

husband neither cried nor raised any alarm when he was

stabbed with the Suan. We find it difficult to accept that a

person, who is beaten by two outsiders in his own house in

the presence of his wife and mother and the beatings given to

him were followed by pushing his mother and wife and

slapping his wife, would not raise an alarm in order to save

himself and his mother and wife. The natural conduct of a

person in such a situation would be to raise an alarm so that,

hearing the alarm, his neighbours can come to their rescue

and save them from further harm at the hands of the

intruders. This is more so when the intruder is armed with a

weapon, which would naturally make him apprehensive that

the weapon was likely to be used against him and a close

relative of the persons subjected to beating is residing in the

neighbouring house and, therefore, he can be hopeful of

getting help from him and other persons in the

neighbourhood. He will at least make an attempt to get help

by raising alarm so as to draw the attention of the neighbours

towards his house. It is, therefore, difficult for us to accept

the version given by PW-3 Shanti Devi and PW-4 Hem Lata in

this regard.

11. Neither Smt. Shanti Devi nor Smt. Hem Lata raised

alarm when the appellants allegedly entered their house, gave

beatings to Joginder, slapped Hem Lata and gave Suan blow

on the chest of Joginder or after they had left their house,

leaving Joginder in injured condition. Joginder was none

other than the son of Shanti Devi and husband of Hem Lata.

The attempt of the mother and the wife of the victim in such

circumstance would be to at least raise alarm particularly

when they are in their own house and can be reasonably

confident of getting help in the event of alarm being raised by

them. Therefore, the conduct of Smt. Shanti Devi and Smt.

Hem Lata in not raising any alarm either during presence of

the appellants or after they had left, creates a serious doubt

on their presence at the time of the incident. Presuming that

being ladies, they had got scared and, therefore, did not raise

alarm in the presence of the accused persons, they had no

reason to continue to be afraid of the accused persons, once

they had left the house after causing injury to Joginder. It is

difficult to believe that the mother and wife of the injured

would not raise alarm in their own house even after the

assailants have left.

12. Admittedly, PW-3 Shanti Devi and PW-4 Hem Lata

did not take the deceased to any hospital or any doctor, after

the accused had left. The deceased, having been beaten and

given blow with a deadly weapon in his chest, the first attempt

of his family members would be to take him to the hospital, so

that medical aid may be provided to him. It defies logic that

the mother and wife of the injured would not make any

attempt to take him to the doctor or to call the doctor to their

place, despite his having received to a serious injury at a vital

part of his body. According to these witnesses, the deceased

had fallen on the cot and had slept. If the injured becomes

unconscious immediately on injury being inflicted on him, the

apprehension of the family members would be that he has

probably succumbed to the injury and in that case their first

attempt would be to take him to the hospital, so that he may

be treated for the injury caused to him. They will not presume

that the man, who was attacked at the most vital part of his

body, with a sharp weapon, had just gone to sleep and did not

require any medical attention. If the injured does not become

unconscious immediately on being injured, he would be

seething with extreme pain, when attacked with a deadly

weapon and, therefore he would ask his family members at

that time to immediately take him to the doctor or call the

doctor at home for the purpose of his treatment and they

would accordingly rush him to the hospital, or call a doctor to

attend him. Since PW-3 and PW-4 admittedly did not make

any attempt to provide medical aid to the deceased, the logical

inference is that, in fact, they were not present at the time the

deceased was attacked in his house. Had they witnessed the

incident, as claimed by them, their first attempt would have

been to take him to take hospital with the aid of their

neighbours, including their close relative, who was residing in

the adjoining house.

13. Admittedly, PW-3 and PW-4 did not inform PW-2

Gyan Chand, brother of PW-3, Shanti Devi even after the

accused persons had left their house, leaving deceased

Joginder in injured condition. In the ordinary course of

human conduct, Gyan Chand being their close relative and

immediate neighbour, they would have either rushed to him or

would have informed the police, after the assailants had left

their house. Though the case of the prosecution is that

accused persons had bolted the door from outside while

leaving the house of Joginder, no such statement was made

either by PW-3 and PW-4 when they came in the witness box.

Even PW-2 Gyan Chand did not say that when he went to the

house of Joginder, he had found the door bolted from the

outside. In any case, even if the door was bolted from outside,

nothing prevented PW-3 and PW-4 from raising alarm and

seeking help of the neighbours, to open the door.

14. Considering the conduct of PW-3 and PW-4 in (i) not

raising any alarm either in the presence of the accused

persons or after they had left (ii) not making any attempt to

take Joginder to doctor or to call the doctor to attend him (iii)

not reporting the matter to Gyan Chand or any other

neighbour and the police, is a strong indicator that they had

not witnessed the incident, as claimed by them.

15. According to PW-4 Hem Lata, wife of the deceased,

she did not even go near her husband to see the injury on his

person. It is extremely difficult to accept that the wife of a

person, who has been injured with a deadly weapon in her

presence, would not even have a look at the injuries sustained

by her husband. Her first attempt, after the assailants have

left, would be to check the body of her husband to see the

injuries sustained by him and to ask him how he was feeling.

No one falls asleep as a result of an injury, though he may

become unconscious. If the husband does not respond, the

wife, instead of presuming him to be asleep, would apprehend

that either he had succumbed to the injuries or had become

unconscious. She would not just go to sleep, presuming the

husband to be alright. According to her, during night, she did

not try even to see her husband. This again, is not expected

from the wife of a person injured by using a deadly weapon

having blade measuring 27 cms.

16. According to PW-3 and PW-4, Ex.P-1 is the weapon

used by the accused Shanker for causing injury to the

deceased. A perusal of the report of CFSL would show that on

scientific examination, blood was detected on the pant, shirt,

jacket, vest/baniyan of the deceased as well as on the weapon

exhibit Bio/B sent to the laboratory. The report further shows

that human origin of the blood was confirmed only on pant

marked Ex. Bio/A1, shirt marked Bio/A2 and vest/Baniyan

Bio/A4, which means that the blood found on the weapon

marked Bio/B1 was not of human origin. When the Senior

Scientific Officer, who examined the exhibits reported that

human origin of the blood was confirmed on Exs. Bio/A1,

Bio/A2 and Bio/A4 only he was ruling out human origin of the

blood on the weapon marked Bio/B. If the blood found on the

weapon Bio/B was not human blood that means it was not the

weapon used for causing injury to the deceased. Since PW-3

and PW-4 have specifically identified the very same weapon as

the weapon used by the accused Shanker for causing injury to

deceased Joginder, the necessary inference is that these

witnesses did not witness the incident and that is why they

identified Ex.Bio/B as the weapon of offence, they being

interested only in conviction of the appellants, even if they had

to tell a lie for this purpose. It will, therefore, not be safe to

rely upon the testimony of such witnesses in the facts and

circumstances of the case.

17. Before the Court bases conviction on the testimony of

an eye-witness, it must be satisfied that he is a truthful

witness so that implicit reliance can be placed on his

testimony. In order to form basis of conviction, the testimony

of the eye-witness should be such that it inspires confidence

and leaves no reasonable doubt about his presence at the

scene of occurrence. If the behaviour of the person claiming to

be an eye-witness is contrary to the course in which a

similarly situated person would normally behave and there is

no satisfactory explanation for such an abnormal conduct, it

will not be safe to base the conviction solely on the basis of his

testimony, since his very credibility stands impeached and

becomes suspect on account of such a behaviour.

18. No doubt post incident conduct varies from person to

person and different persons may react differently in similar

situation. The conduct of a witness can be termed as

„unnatural‟, when the reaction demonstrated by him is so

improbable or so inconceivable, that it cannot be expected

from a human being placed in the situation, in which he was

placed. But, when the conduct is so strange and unnatural

that no person is likely to act in the way he is found to have

acted, it will be totally unsafe to make his testimony the sole

basis of conviction for a serious offence such as murder.

19. If the testimony of PW-3 and PW-4 is excluded from

consideration, there is no other evidence to connect either of

the appellants with the murder of deceased Joginder. The

Trial Court has disbelieved the alleged recovery of Gupti/Suan

at the instance of the appellant Shanker. Even if we believe the

alleged recovery that does not advance the case of the

prosecution in any manner, since the prosecution has failed to

prove that the murder of the deceased was committed using

this very weapon. As noted earlier, the blood on this weapon

was not found to be of human origin, which rules out the

possibility of its having been used for committing murder of

deceased Joginder.

20. For the reasons given in the preceding paragraphs,

the impugned judgment and Order on Sentence are set aside

and both the appellants are hereby acquitted. Their Bail

Bonds stand discharged.

(V.K. JAIN) JUDGE

(BADAR DURREZ AHMED) JUDGE

JULY 07, 2010 Ag/bg