Chaman Lal vs The State (Delhi Admn.)
2010 Latest Caselaw 3205 Del

             THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment delivered on: 12.07.2010

+            Crl.A.No.251/1997

CHAMAN LAL                                             ..... Appellant

                                   versus


THE STATE (DELHI ADMN.)                                ..... Respondent

Advocates who appeared in this case:

For the Appellant : Mr Rajesh Mahajan 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?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in Digest?

BADAR DURREZ AHMED, J (ORAL)

1. The appellant has been convicted under Section 302/324 of the

Indian Penal Code for causing the murder of Almina as also injuries on the

person of her husband Chunan Khan @ Ali Hassan. The appellant, by virtue

of the Order on Sentence dated 27.11.1996 has been ordered to undergo

rigorous imprisonment for life in respect of the offence under Section 302

IPC and also to pay a fine of Rs 5,000/- and in default of payment to further

undergo rigorous imprisonment for one month. The appellant was also

sentenced in respect of the offence under Section 324 IPC and was ordered

to undergo rigorous imprisonment for one month and to pay a fine of Rs

100/- and in default of payment of such fine to further undergo rigorous

imprisonment for a period of 15 days. The sentences were to run

concurrently.

2. The case of the prosecution is that on 05.10.1991, at about 10.45

pm, the appellant, who was residing in the same locality as that of the

deceased and the injured, started abusing Almina. It is also the case of the

prosecution that the appellant stabbed Almina in her abdomen several times

and on her raising an alarm, her husband Chunan Khan @ Ali Hassan also

came out of the house and when he tried to rescue his wife from the

appellant, he was also stabbed by the appellant in his abdomen and,

thereafter, the appellant ran away from the spot while abusing him.

Subsequently, the deceased Almina and her husband Chunan Khan @ Ali

Hassan were taken to JPN hospital. Almina was unfit to make a statement.

Chunan Khan @ Ali Hassan was also admitted and he was also declared to

be unfit to make a statement.

3. The prosecution examined as many as 15 witnesses, of which, the

most material witnesses were the three alleged eye-witnesses PW-5 Noor

Jahan, PW-6 Haseena and the injured witness PW-7 Chunan Khan @ Ali

Hassan. The Investigating Officer, Inspector V.K. Gupta, was examined as

PW-15. As per the prosecution, the ruqqa was prepared on the basis of the

statement of PW-6 Haseena, who is said to have been residing in the same

locality and who is said to have witnessed the entire incident. Her statement

has been recorded as Ex.PW-2/A and at the end bears her thumb impression.

On the basis of the statement, the ruqqa, Ex.PW-2/B was prepared and was

sent to the Police Station through Constable Narender for registration of the

case. Thereafter, the FIR No.580/1991 was registered initially under Section

307, and after the death of Almina, Section 302 was added. As per the

prosecution, the weapon of offence, which was said to be a knife (churi) was

recovered at the instance of the appellant. The said knife was bloodstained

and the CFSL reports Ex.PW-15/1 and PW-15/2 indicated that blood was

detected on the knife of the alleged weapon of offence as also on the clothes

which were worn by the appellant at the time of his arrest. As per the CFSL

report, human blood was detected in the above items and the blood group in

each case was ‗B'.

4. The post-mortem was conducted by PW-10 Dr. George Paul and

his opinion was that the injury Nos. 7 and 9, singly and collectively, were

sufficient to cause the death of Almina. These injuries were as under:

―7. Transverse incised stab would 5X1 cm on the lower outer front part right side of chest the inner end being just over the right midclavicular line in the 7th inter costal space and above the right common cartilage margin. Both the margins were clean cut; inner angle acute outer angle somewhat less acute; cutting expose muscles of 7th inter costal space underneath and going backward slightly downward and inward into chest and abdominal cavity tissues, the inner angle being 8.2 cm from midline and 102 cm above right heal.‖

―9. Incised/stab wound 4.1 cm X 0.3 cm in somewhat curvilinear manner present in the upper outer front of left side abdomen, somewhat saucer shape. Both margins were clean cut with slight undermining, upper outer margin which also showed a somewhat irregular margin. Lower inner margin was somewhat velled both angle somewhat acute going before backward and slightly inward. Upper inner angle being 13.5cm from midline,

lower outer angle being 93.7 cm above left heel, going into chest cavity deep.‖

5. Apart from the aforesaid fatal injuries, the deceased Almina also

received several incised injuries on her face, cheek, chest, limbs including

forearm. It is clearly indicated that several attacks were made on the

deceased and she had tried to defend herself, but was unsuccessful.

6. Of the three eye-witnesses, namely, PW-6 Haseena, PW-5 Noor

Jahan and PW-7 Chunan Khan @ Ali Hassan, the first, i.e., PW-6 did not

support the case of the prosecution and was declared hostile. However, PW-

5 Noor Jahan, who was the daughter of the deceased Almina, supported the

case for the prosecution and corroborated her father's (PW-7 Chunan Khan)

testimony in material particulars. It is on the basis of the testimonies of

these eye-witnesses that the Trial Court came to the conclusion that the

appellant was guilty of committing the murder of deceased Almina and

inflicting injuries on Chunan Khan @ Ali Hassan.

7. The learned Amicus Curiae, appearing on behalf of the appellant,

challenged the impugned judgment on several grounds. Four of the grounds

taken by him were also taken by the defence before the Trial Court. The

said grounds were: (i) that the eye-witnesses, namely, PW-5 Noor Jahan and

PW-7 Chunan Khan @ Ali Hassan were close relatives of the deceased and

thus their testimonies should be regarded as that of interested witnesses and

should not be relied upon for basing a conviction; (ii) PW-6 Haseena, who

was an independent witness, had turned hostile and as such this fact ought to

be a circumstance which should be taken in favour of the defence and

against the prosecution; (iii) PW-5 Noor Jahan, in any event, being a child

witness ought not be relied upon for basing a conviction in case as there

were contradictions between her testimony and that of the other witnesses.

It was submitted that the testimony of PW-5 Noor Jahan ought to be looked

upon with great care and caution; (iv) Fourthly, it was also contended that

there were several contradictions in the statements of PW-5 and PW-7. The

nature of the contradictions were with regard to whether Chunan Khan @

Ali Hassan and Almina were having the meal together or whether it was Ali

Hassan who was taking his meal inside the house or one of them was inside

the house or the other was outside the house. Other contradictions were

sought to be pointed out between the testimony of PW-2 SI Rajpal Singh and

PW-15 Inspector V.K. Gupta with regard to recording of the statement of

PW-6 Haseena and the sending of the ruqqa and sealing of the weapon of

offence.

8. Another ground taken by the defence was that in her deposition,

PW-5 Noor Jahan had stated that she had not seen the knife in the hands of

the appellant and that it was only on the next day that her father told her that

the appellant was armed with a knife. According to the learned counsel for

the appellant, this was a material circumstance which led to the innocence of

the appellant.

9. Apart from the aforesaid grounds taken by the learned counsel,

which were also grounds taken before the Trial Court, additional points have

been raised before us. The first point, which was taken, was that as per the

MLC of the deceased and the injured being Ex.PW-13/A and PW-13/B, it

would appear that the assault was not by a single person, but by a group of

persons. This, according to the counsel, is in clear contradiction of the case

set up by the prosecution. Another additional point, which is taken by the

learned counsel, was that as per the post-mortem report submitted by PW-10

Dr. George Paul, there was an indication that not just one weapon was used,

but more than one weapon was used. The third and last point taken by the

learned counsel appearing on behalf of the appellant was that the CFSL

reports, Exs.PW-15/1 and 15/2, were inadmissible in evidence in view of the

provisions of Section 293 of the Code of Criminal Procedure, 1973 on

account of the fact that the authors of the report were Senior Scientific

Assistants of Biology and Serology, respectively and they were not the

named or authorized persons, referred to in Section 293. It was submitted

that since they were not the named experts, mentioned in Section 293

Cr.P.C., their non-production meant that the reports would be inadmissible.

10. The learned counsel for the State supported the decision of the

Trial Court and made his submissions accordingly.

11. In this case, we have to see as to whether the testimony of the

eye-witnesses can be disbelieved. Insofar as PW-6 Haseena is concerned,

she has clearly turned hostile for whatever reason. The fact that she turned

hostile cannot be taken advantage of by the appellant. It is also to be noted

as was observed by the Trial Court that PW-6 Haseena admittedly put her

thumb impression on Ex.PW-2/A which was the statement recorded by the

IO SI Rajpal which formed the basis of the ruqqa and, subsequently, the

FIR. In that statement, we may also point out that there was only one

assailant and that was Chaman Lal, the present appellant, whose name was

mentioned.

12. We are now led to examine the other two witnesses, namely, PW-

5 Noor Jahan and PW-7 Chunan Khan @ Ali Hassan. Insofar as the PW-5 is

concerned, she is the daughter of the deceased Almina and the injured

Chunan Khan. The incident took place just outside her house and she was a

natural witness. It is true that she was only about 9 years of age on the date

of the occurrence and was about 12 years at the time of deposition, yet, her

testimony cannot be discarded solely on the ground that she was a child

witness. It is true that the testimony of a child witness has to be considered

with great care and caution so as to eliminate the possibility of tutoring as

well as exaggeration. It is for this reason that normally, corroboration is

sought for. In the present case, there is no difficulty insofar as the

corroboration is concerned because we have the testimony of the other eye-

witness and that, too, of the injured eye-witness PW-7. The fact that PW-5

and PW-7 were closely related is of no consequence if otherwise their

testimonies cannot be disbelieved. The learned counsel for the appellant has

suggested that there was a serious contradiction between the testimonies of

PW-5 and PW-7 inasmuch as PW-5 had indicated that she had not seen the

knife in the hands of the appellant and that she had stated that Almina and

Chunan Khan @ Ali Hassan were stabbed by the appellant with the knife

only when she was informed that the appellant was armed with a knife by

her father the next morning.

13. In her cross-examination, PW-5 Noor Jahan stated that:-

―I had not seen knife at the time of the incident, in the hand of accused, but my father told me that accused had given knife blow on the next day.‖

This statement, by itself, could possibly have led to the

conclusion that PW-5 was tutored. But, it is no so because in the testimony

of PW-7 Chunan Khan @ Ali Hassan, it is also stated as follows:-

―On 05.10.91 at about 10.30 or 11.45 PM at that time I was taking meal at my house. My wife Albeena was sitting outside our house and my daughter Noor Jahan was cleaning utensils. Accused Chaman Lal present in court came abusing to my wife. She caught hold of my wife. At that time I did not see the weapon which was used by Chaman Lal. On hearing noise I came out. I thought that he was causing fists blows. I intervened seeing that he continuously causing blows after blows to my wife.

I got her released with great difficulty then accused caused knife blows to me on my abdomen. Then I shouted ‗Isne Chaku Mara Hain'. My wife was also bleeding from her abdomen and for that reason I say that she was also stabbed with knife as it was dark I did not notice knife before I was stabbed.‖ (underlining added)

From the above testimony of PW-7 Ali Hassan, it appears that in

the first instance even he did not notice the knife in the hands of Chaman Lal

because of darkness. It is only when he himself received knife blows that he

realized that Chaman Lal was armed with a knife. It is with the same weapon

that blows were given to his wife as well as to him. His wife succumbed to

the injuries because of the serious nature of the same and the fact that

multiple attacks were made upon her.

14. Thus, we feel that the statement of PW-5 Noor Jahan to the

extent that she had not seen the knife in the hands of the appellant Chunan

Khan @ Ali Hassan is not at all a material circumstance as the same is fully

explained and is certainly not a circumstance which goes in favour of the

defence or against the prosecution.

15. As regards the contradictions, we find that the contradictions are

of a very minor nature and are on peripheral issues. On the core issue of

Chaman Lal attacking Almina with a knife and also attacking PW-7 Chunan

Khan @ Ali Hassan, there is no contradiction in the testimonies of the two

eye-witnesses. The fact remains that Chaman Lal attacked Almina and

caused her death and also injured Chunan Khan @ Ali Hassan when he went

to save her. This incident was seen not only by PW-5 Noor Jahan, who was

a natural witness, but also by Ali Hassan, who himself was injured and there

is no reason for us to disbelieve either testimony.

16. We now move on the additional points urged by the learned

counsel for the appellant before this Court. The first point that was urged

was with regard to there being a group of people who had assaulted the

deceased and the injured PW-7 as per the MLC reports Exs.PW-13/A and

PW-13/B. If we closely examine the Ex. PW-13/A, which is in respect of

Almina, it has been shown that she was brought by Chunan Khan @ Ali

Hassan. Under the heading - ―Particulars of Injuries & Symptoms‖, it is,

inter alia, recorded as under:-

―Alleged H/o stabbed by group of people‖

In Ex.PW-13/B which pertains to Chunan Khan @ Ali Hassan, it

has been indicated that he was himself brought by one Surinder Kumar S/o

Charan, R/o 28/92 Trilok Puri, Delhi. Under the heading - ―Particulars of

Injuries & Symptoms‖, it was, inter alia, stated as under:

―alleged H/o attack by group of people by knife, stab wound‖

It is on the basis of these two entries in these exhibits that the

learned counsel for the appellant states that the attack was by a group of

people and not by the appellant as set up by the prosecution. We must point

out straightaway that when Chunan Khan @ Ali Hassan himself had been

brought by another person (Surinder Kumar), as mentioned in Ex.PW-13/B,

there was no occasion for noting that Almina was brought by Chunan Khan

@ Ali Hassan. It appears that both of them were brought by Surinder

Kumar and it is Surinder Kumar who may have given the alleged history

with regard to the offence. We have already noted at the beginning of this

judgment that both Almina and Chunan Khan @ Ali Hassan had been

declared unfit for making any statement. This also helps us in leading to the

conclusion that the alleged history of the occurrence was given not by

Almina or Chunan Khan @ Ali Hassan, but by someone else, perhaps,

Surinder Kumar. We also noted the fact that in the said two Exs.PW-13/A

and PW-13/B, the assault is said to have been made by a group of people

and not by Chaman Lal alone. In the cross-examination of PW-7 Chunan

Khan @ Ali Hassan, no suggestion was given to him with regard to

purported alleged history of occurrence indicating that the assault was by a

group of persons and not by Chaman Lal. For all these reasons, we cannot

accept the plea raised by the learned counsel for the appellant that the

incident did not happen in the manner set up by the prosecution and as

testified by the two witnesses PW-5 and PW-7.

17. As regards the two weapon theory raised by the learned counsel

for the appellant, we find that this argument also cannot be accepted. The

reason for this is very clear. Even upon a reading of the post-mortem report

of PW-10 Dr. George Paul, it cannot be construed that two weapons were

used. In the post-mortem report, it was inter alia mentioned as under:-

―Inj. No.1,2,3,4,6,7,8 and 9 were caused by some sharp cutting weapon, Nos. 7,8 and 9 by some sharp cutting either thin bladed single edged or double bladed weapon with one edge not so sharp cutting--stabbing weapon.‖

18. Although on first reading of the said opinion, it may appear that

there is a description of two separate weapons, but that is not so. This is

because the very first portion of the said statement clearly refers to all the

injuries Nos. 1 to 4 and 6 to 9 and then there is a separate reference to injury

Nos.7, 8 and 9. The meaning is very clear that all the injuries bearing

numbers 1 to 4 and 6 to 9 could have been caused by a single weapon - a

sharp cutting weapon. The fact that injuries 7, 8 and 9 could have been

inflicted by a sharp cutting weapon which could have been a single edged or

a double edged weapon with the edges having differing degrees of sharpness

does not lead to the conclusion that two weapons were used. All the said

injuries 1 to 4 and 6 to 9 could be caused by a single weapon and this is also

corroborated by the injured witness. Therefore, we are not impressed with

the submission of the learned counsel for the appellant with regard to the

two-weapon theory.

19. Insofar as the objection regarding the admissibility of the CFSL

report is concerned, the learned counsel for the State submitted that the said

documents were exhibited without any objection on the part of the defence

and such an objection cannot, now, be taken. It is also submitted that had

such an objection be taken at that point of time, they could have produced

the authors of the said reports. In any event, we feel that we need not enter

into the controversy of the admissibility of the said reports because even de

hors the said reports, the oral testimonies of the eye-witnesses are sufficient

to incriminate the appellant. We have already pointed out earlier that there

is nothing which has been brought to our notice which could render the eye-

witness accounts of PW-5 and PW-7 to be unreliable. Even during cross-

examination, the defence has not been able to bring out any motive on the

part of the said witnesses to falsely implicate the appellant.

20. For all these reasons, we decline to interfere with the impugned

judgment and Order on Sentence. Consequently, the conviction as well as

sentence awarded to the appellant are upheld.

The appeal is dismissed.

BADAR DURREZ AHMED, J

V.K. JAIN, J

JULY 12, 2010 BG