Subhash vs State
2010 Latest Caselaw 1270 Del

R-100, 101 & 102
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Decision: 8th March, 2010

+                     CRL. APPEAL NO.604/2007

       SUBHASH                                      ..... Appellant
                      Through:      Mr.R.P.Sharma, Advocate with
                                    Ms.Lakshna Oberoi and Mr.Brijesh
                                    Oberoi, Advocates

                                    Versus

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

                      CRL. APPEAL NO.421/2007

       MAUSAM                                        ..... Appellant
                      Through:      Mr.Satish Tamta, Advocate with
                                    Ms.Nisha Narayan and Ms.Ruchi
                                    Kapoor, Advocates

                                    Versus

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

                      CRL. APPEAL NO.450/2007

       RAM GOPAL @ GOPAL                 ..... Appellant
               Through: Mr.Satish Tamta, Advocate with
                         Ms.Nisha Narayan and Ms.Ruchi
                         Kapoor, Advocates

                                    Versus

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

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


Crl.A.Nos.604/07, 421/07 & 450/07                           Page 1 of 16
      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. (Oral)

1. Mr.Satish Tamta learned counsel who has filed the

appeal on behalf of co-accused Mausam has filed a

vakalatnama in Court on behalf of co-accused Ram Gopal

which is taken on record.

2. Arguments have been heard.

3. We proceed to judgment.

4. Vide impugned judgment and order dated

22.5.2007, appellant Subhash has been convicted for the

offence punishable under Section 302/34 IPC pertaining to the

death of Vinod. The finding returned is that Subhash along

with juvenile co-accused Khalid are the offenders and were the

ones who used a knife each to inflict injuries on the person of

the deceased. Appellants Subhash and Mausam have been

held guilty of sharing the intention with the other two accused

to cause injuries on the deceased and not death and thus the

two have been convicted for the offence punishable under

Section 326/34 IPC.

5. Vide order on sentence dated 1.6.2007, Subhash

has been sentenced to undergo imprisonment for life.

Mausam and Ram Gopal have been sentenced to undergo

imprisonment for a period of 10 years and have been directed

to pay a fine in sum of Rs.50,000/-; in default of payment of

fine have been directed to undergo SI for 1 year. It has been

further directed that if the amount of fine is realized,

Rs.40,000/- each shall be given to the legal heirs of deceased

Vinod.

6. We note that Mausam and Ram Gopal are present

in Court and they inform that they have deposited the fine.

7. In convicting the appellants, the learned Trial Judge

has accepted the testimony of PW-1, PW-2, PW-3 and PW-13.

We note that PW-1 is the father of the deceased. PW-2 is the

brother of the deceased. PW-3 is the wife of the deceased and

PW-13 is a relative of the deceased.

8. As per the aforenoted witnesses it all began when

Pushpender PW-13 who is a nephew of Kunwar Pal PW-1, and

had been staying in the house Kunwar Pal for about a week

prior to 5.12.2003, left Kunwar Pal's house bearing No.A-257,

Gali No.6, Mandoli Extension, Delhi to meet his uncle Jagdish

who resided in Gali No.6. The date was 5.12.2003 and as

deposed to by Kunwar Pal and Pushpender, the time was 4:00

PM.

9. As Pushpender was on his way to meet Jagdish he

reached Veeru ki Bhatti where 4 persons including Subhash

and Mausam accosted him and asked him to give them

Rs.1,000/-. He hesitated. They persisted. He gave Rs.1,000/-

and returned to complain to Kunwar Pal who along with Vinod

went to Veeru ki Bhatti and met juvenile co-accused Khalid,

appellants Mausam, Subhash and Gopal. He asked them why

they extracted Rs.1,000/- from Pushpender. A verbal

altercation ensued. Local people gathered. Peace was

brokered. Kunwar Pal and Vinod returned to their house.

10. This is stage one of the incident and forms the

backdrop of what happened at 9:30 PM.

11. It is urged by learned counsel for the appellants

that so trivial is the incident which took place at 4:00 PM that it

is difficult to believe that actuated out of malice or motivated

by the same, the appellants and Khalid would go to the house

of Kunwar Pal to commit the crime. It is alternatively urged

that assuming the appellants and Khalid had some grievances

pertaining to what may have been said to them by Kunwar Pal,

the target would not be Vinod.

12. We do not agree with the said submission for the

reason the accused may have gone back with a feeling of

revenge and whosoever could be laid hands upon would

become the target of the assault.

13. Crime in Delhi is not showing any determinative

pattern. Reasons and reasons, some of them must trivial, are

being noticed by us in the commission of the crime. May be,

the desire to show one's muscle or may be out of youth,

unable to control one's feelings, people are resorting to crime.

It assumes importance to note that the appellants were

between 19 to 23 years when the offence was committed.

Khalid was a juvenile i.e. less than 18 years. Want of adequate

employment and want of adequate education and the city of

Delhi being over-staffed is resulting in serious crime being

committed over trivial issues.

14. Reverting back to the stage two of what happened

on 5.12.2003, as consistently deposed to by PW-1, PW-2, PW-3

and PW-13, they were all present in the house along with

Vinod when a knock on the door was heard at 9:30 PM. Vinod

opened the door. Khalid, probably assisted by Subhash

pounced upon Vinod and dragged him from the door of the

house to the street where Mausam and Gopal joined and

caught Vinod. Only Subhash and Khalid pulled out knives and

inflicted stab injuries on the deceased. All ran away

thereafter. 4 injuries proved fatal.

15. As deposed to by the 4 witnesses, they brought

Vinod inside the house and put him on a cot. A rescue vehicle

i.e. a TSR was arranged for. Vinod was put in the TSR and was

taken to GTB Hospital and as recorded on the MLC Ex.PW-17/A

he was admitted at said hospital at 10:00 PM. It stands

recorded that Vinod was brought to the hospital by his brother

Kishan Kumar (PW-2) and one Nathu, who we note has not

been examined as a witness by the prosecution.

16. As recorded on the MLC Ex.PW-17/A, Vinod was

declared brought dead.

17. Information of the crime was received through two

different sources at the police control room. The same was

transmitted to PS Nand Nagri for the reason the place of the

crime is House No.257, Gali No.6, Mandoli Extension i.e. the

house where the deceased resided with his father, brother and

wife. Entry at the police station pertaining to two relayed

informations being received from the police control room, one

after the other, stands entered in DD No.28, Ex.PW-8/A. It

stands recorded that at 9:45 PM the police control room has

informed that somebody has been stabbed at House No.257,

Gali No.6, Mandoli Extension.

18. ASI Chet Ram PW-16 accompanied by Const.Jaiveer

were entrusted with a copy of DD No.28 and the two

proceeded to the spot i.e. House No.257, Gali No.6, Mandoli

Extension. But, before the two could reach the said place, SI

Kailash PW-17 who was on patrol duty got information of the

crime and he reached the spot a little earlier and thus ASI Chet

Ram and Const.Jaiveer joined his company at the spot.

Information was passed on to Insp.Gajender Singh PW-19, the

SHO of the police station and even he proceeded to the spot.

Thus, 4 police officers, ASI Chet Ram, Const.Jaiveer, SI Kailsah

and Insp.Gajender reached the spot and learnt that Vinod had

been removed to GTB Hospital.

19. Whereas Insp.Gajender and Const.Jaiveer remained

at the spot, ASI Chet Ram and SI Kailash proceeded to GTB

Hospital where they learnt that Vinod was declared brought

dead. They obtained a copy of his MLC and met Kunwar Pal

PW-1 at the hospital. As deposed to by SI Kailash and Kunwar

Pal, Kunwar Pal's statement Ex.PW-1/A was recorded by SI

Kailash who made an endorsement Ex.PW-17/B beneath the

said statement and dispatched the same for FIR to be

registered through ASI Chet Ram. As recorded on the

endorsement Ex.PW-17/B the tehrir was dispatched from the

hospital at 10:40 PM and by 11:00 PM vide DD No.21 A, the FIR

was registered.

20. Unfortunately, as admitted by Insp.Gajender PW-19,

nobody bothered to lift blood from the scene of the crime.

But, a photographer Const.Padam Singh PW-11 was

summoned who took 4 photographs Ex.PW-11/1 to Ex.PW-

11/4; negatives whereof are Ex.PW-11/5 to Ex.PW-11/8. The

photographs show blood on the street as also on a cot inside

the house as also on the floor beneath the cot.

21. As deposed to by PW-11 he was summoned to

House No.257, Gali No.7, Mandoli Extension and took the

photographs at the said spot. Thus, we have on record

evidence that on the street outside the house and within the

house, on the cot and on the floor of the house just under the

cot, blood was to be seen.

22. Two knives have been claimed by the prosecution

to have been recovered pursuant to the disclosure statements

of Subhash and Khalid, both of which have been opined to be

the possible weapon of offence.

23. Needless to state, the case of the prosecution

hinges upon the testimony of PW-1, PW-2, PW-3 and PW-13, all

of whom have deposed in sync and stated facts as noted in

paras 14 and 15 above. PW-1 has in addition deposed to what

happened at 4:00 PM the same day.

24. With reference to the testimony of the 4 witnesses

learned counsel for the appellants had tried to urge that it is

difficult to believe that all 4 were present when the crime took

place for the reason the natural conduct of the 4 would have

been to save Vinod and rush him immediately to the hospital.

As a limb of this argument it is urged that it is unnatural

conduct that the 4 would bring Vinod inside the house and

make him lie on the cot. It is urged that the normal conduct

would be to rush the injured to a hospital.

25. Second contention urged is that the witnesses have

not clearly deposed to in what sequence they walked behind

Vinod when he was allegedly pulled out. With reference to the

testimony of Kunwar Pal it is pointed out that as per him, after

Vinod was pulled in the gali, Kunwar Pal followed. Thereafter

Meena PW-3 followed and then Kishan PW-2. It is pointed out

that Kishan PW-2 could not disclosed as to in what sequence

the family members went out of their house when Vinod was

pulled out. With reference to the testimony of Meena PW-3 it

is pointed out that as per her, first her father-in-law,

then she, followed by her brother-in-law Kishan went outside

the house. As regards Pushpender it is urged that as per him

first Kunwar Pal, thereafter he and then the others went out.

26. It is urged that Kunwar Pal has not taken the

deceased to the hospital for the reason had it been so, in the

MLC of Vinod his i.e. Kunwar Pal's name would have been

recorded as the one who brought Vinod to the hospital.

27. None of the submissions have compelled us to take

a view contrary to the one taken by the learned Trial Judge

with reference to the testimony of PW-1, PW-2, PW-3 and PW-

13.

28. The incident in question took place on 5.12.2003

and the witnesses of the prosecution deposed on various dates

between 13.4.2005 to 25.10.2005. With the passage of time

human memory gets blurred. A witness does not possess a

video camera inside his brain which he switches on nor does

he have with him a tape recorder in his mind, button whereof

he presses to speak. Thus, narratives of past events by

ordinary persons have to come along with the imperfect

recollection which is the failing of every human being. Who

followed whom, is most trivial and merely because the

witnesses have given a different sequence in which the family

members walked outside following Vinod, is an inconsequential

fact vis-à-vis the alleged discrepant statements.

29. Qua their conduct, the witnesses have clearly

stated that when Vinod was grievously injured, a rescue had to

be arranged and pending that, Vinod was brought inside and

made to lie on the cot. We have referred to the photographs of

the spot which corroborate to the said version of the 4

witnesses of the prosecution. Thus, it is not that all stood as

by-standers. There is nothing unnatural to make an injured lie

on the cot till a vehicle is arranged to remove him to the

hospital.

30. Thus, notwithstanding the unfortunate serious lapse

committed by the investigating officer in not picking blood

samples or control earth from the scene of the crime we find

that the credible version deposed to by the eye witnesses has

more than offset the said lapse. We need not refer to the

decisions where the exclusionary rule has been debated vis-à-

vis the heavy price to be paid by society if criminals are

allowed to be set free on account of a lapse in investigation.

With reference to serious crimes, the view taken is that if there

is credible evidence wherefrom conviction can be sustained,

lapses by the prosecution during investigation have to be

ignored. Only where the investigation has caused prejudice to

the accused or has resulted in planting being done with

impunity, the exclusionary rule has to be applied.

31. Now, the witnesses have deposed in unison that

PW-2, the brother of the Vinod, as also Kunwar Pal his father,

and some persons from the neighbourhood went to the

hospital.

32. On the MLC of the deceased, it stands recorded that

the persons who have brought the deceased to the hospital

are his brother Kishan Pal and a neighbour Nathu.

33. We have noted hereinabove that DD No.28, Ex.PW-

8/A, has been recorded at 9:45 PM at the police station. The

MLC records that the injured has been brought at the hospital

at 10:00 PM.

34. So closed is the proximity of time of the crime and

the victim being taken to the hospital that it lends assurance

to Kishan Pal being with his brother.

35. PW-17 has stated that he recorded the statement

Ex.PW-1/A of Kunwar Palk at the hospital. Kunwar Pal does not

say so with clarity. But, the tehrir Ex.PW-17/B beneath the

statement Ex.PW-1/A shows that the statement and the tehrir

have been dispatched from GTB Hospital. Thus, in view of the

documentary evidence it is apparent that Kunwar Pal was at

the hospital. We note that Kunwar Pal has claimed to be

present in the hospital.

36. At this stage we may notice that it has been

brought to our notice, with reference to the cross-examination

of Kishan Kumar PW-2, that he stated during cross

examination: 'it is incorrect that I got admitted my brother in

the hospital'.

37. This is probably the 12th or 13th time where we have

noticed evidence where the dispute vis-à-vis 'incorrect' and

'correct' has been debated upon.

38. We have repeatedly highlighted and do so once

again for the reason we find that the learned Trial Judges are

obstinately continuing to record evidence using expressions

like 'correct' and 'incorrect'. We have highlighted that where

a witness denies a suggestion, it would be better to record that

'it is wrong...... (whatever may be the suggestion)'.

39. If we peruse the testimony of Kishan Kumar, in his

examination-in-chief, he has categorically stated that along

with his father he removed his brother to GTB Hospital. Even

during cross-examination, in the sentence prior to where the

aforenoted sentence stands recorded, i.e. it is incorrect that I

went to the hospital, he has said that police officers

accompanied them to the hospital. Immediately after the

aforenoted sentence being debated upon, he has said: 'it is

incorrect that my father was not present in the hospital at the

time of admission of Vinod'. It is apparent that in the sentence

in question there is either a typographic error or the witness

did not correctly understand the negative import of the

question put to him during cross-examination.

40. On sentence, the learned counsel for Subhash and

Mausam draws our attention to the fact that the two were just

beyond the age of minority and had turned the age of

majority. Mausam was around 19 years and Ram Gopal was 2

years older. Though major, the two lacked the maturity of an

experienced man for the obvious reason the two had hardly

any experience behind them. Learned counsel urges that

Mausam and Ram Gopal have since got married. They have a

wife each. They have been blessed with two children who are

studying in school. Learned counsel draws our attention to the

fact that nominal roll of Mausam and Ram Gopal does not

show their prior involvement in any crime. Counsel urges that

sending Mausam and Ram Gopal to jail would be not much

punishment to them but to their wife and chidren. Their

children would be on the street. Their wives would be likewise

on the streets. It is pointed out that Mausam and Ram Gopal

are petty hawkers who earn their daily bread and butter by

hawking goods and with the fruits of their labour feeding their

wives and children. In a nut shell, what is urged is that since

Mausam and Ram Gopal have been held not to be sharing any

common intention with Subhash and Khalid to murder the

deceased and for said reason have been convicted for the

offence punishable under Section 326 IPC, it would be

appropriate to modify the sentence qua them by directing that

the same stands reduced to the period already undergone.

41. We note that Mausam and Ram Gopal have

undergone an actual sentence of a little over 4 years and 8

months. They have earned some remissions.

42. Noting the arguments advanced by learned counsel

for Mausam and Ram Gopal we are of the opinion that ends of

justice would be met if their conviction is maintained but

sentence reduced to the period already undergone. The

imposition of fine is also to be maintained.

43. As regards Subhash we ntoe that even Subhash

was not of much matured aged, but unfortunately for him, we

cannot extend the benefit of directing his release on the

sentence already undergone for the reason there is no scope

for any argument that when two persons joined together in an

assault and cause multiple stab injuries, 4 of which are serious,

it can be said that their intention was something other than to

murder the victim.

44. Thus, the conviction of Subhash for the offence of

murder and the sentence for him to undergo imprisonment for

life has to be maintained.

45. The three appeals stand disposed of by dismissing

Crl.A.No.604/2007 filed by Subhash. Crl.A.No.421/2007 and

Crl.A.No.450/2007 filed by Mausam and Ram Gopal are

disposed of by maintaining their conviction but modifying the

sentence imposed. The two are sentenced to undergo

imprisonment for the period they have already undergone.

The fine imposed on the two is maintained.

46. We modify the directions of the learned Trial Judge

that only Rs.40,000/- would be paid to the kin of deceased

Vinod. We direct that the entire fine realized to be paid over

to the widow of Vinod i.e. Meena Devi PW-3.

47. In view of the sentence which stands imposed upon

Mausam and Ram Gopal, noting that they are on bail and need

not be taken into custody, we discharge the surety bond and

bail bonds furnished by Mausam and Ram Gopal.

48. Taking further notice of the fact that Subhash is still

in jail we direct that a copy of this order be sent to the

Superintendent Central Jail Tihar to be made available to

Subhash.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE March 08, 2010 mm