Kiran Kumar vs State Of Delhi
2010 Latest Caselaw 4460 Del

            THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment delivered on: 22.09.2010

+            CRL.A. 321/1997

KIRAN KUMAR                                                   ..... Appellant

                                       versus

STATE OF DELHI                                                ..... Respondent

Advocates who appeared in this case:

For the Appellant       : Mr K.B. Andley, Sr Advocate with Mr M.L. Yadav and
                          Mr M. Shamikh
For the Respondent      : Mr Sanjay Lao

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

BADAR DURREZ AHMED, J

1. The present appeal by the appellant Kiran Kumar is directed

against the judgment and order on sentence passed by the Additional

Sessions Judge on 14.07.1997, whereby the appellant was held guilty

under Section 302 IPC for having committed the murder of Mukesh and

was sentenced to undergo rigorous imprisonment for life and to pay a sum

of ` 500/-, in default whereof, he was required to undergo further rigorous

imprisonment for two months.

2. The appellant Kiran Kumar alongwith co-accused Duli Chand

@ Kalu were charged for having committed the murder of Mukesh in

furtherance of their common intention. As per the charge, on 02.01.1995

at about 6.45 p.m. at House No.16/606, Gali No.18, Arya Samaj Road,

Bapa Nagar within the police station of Prasad Nagar, the appellant Kiran

Kumar and co-accused Duli Chand @ Kalu, in furtherance of their

common intention, caused the death of Mukesh with a chhuri and

committed culpable homicide amounting to murder.

3. The prosecution case is that Mukesh was carrying on a leather

cutting business at a rented godown bearing No.16/606, Gali No.18, Arya

Samaj Road. PW-6 Prem Chand and Mukesh had become friends. It was

alleged that on 01.01.1995, Mukesh told PW-6 Prem Chand that he had an

altercation with a person named Kiran and some other associates and that

they had threatened to take revenge. Subsequently, on 02.01.1995, at

about 6.45 p.m., while PW-6 Prem Chand and Mukesh were sitting in the

said godown, Kiran and his friend Kalu came there and started abusing

Mukesh. Thereafter, Kiran Kumar is said to have told Kalu that Mukesh

is the person who had dismantled their flags on the night of 31.12.1994.

On hearing this, Kalu is said to have exhorted the appellant Kiran Kumar

to kill Mukesh and not to spare him as he had insulted him. It is alleged

that in the meantime, PW-7 Ram Gopal, who was Mukesh's brother-in-

law, also arrived at the scene of occurrence. At that point, Kalu allegedly

overpowered Mukesh from behind and on his exhortation, Kiran stabbed

Mukesh on the chest. The appellant Kiran is said to have inflicted another

injury on the left axilla. It was also alleged that when PW-6 Prem Chand

and PW-7 Ram Gopal raised an alarm, Duli Chand @ Kalu struck PW-6

Prem Chand on his head with an iron rod and thereafter both Kiran Kumar

and Duli Chand @ Kalu allegedly ran away. Mukesh was bleeding and it

is alleged that PW-6 Prem Chand and PW-7 Ram Gopal took him to Ram

Mohan Lohia Hospital in a three wheeler scooter and it is there that he

(Mukesh) succumbed to his injuries and died.

4. In an attempt to prove its case, the prosecution examined as

many as 19 witnesses. The defence also produced three witnesses. After

considering the testimonies of the aforesaid witnesses and the other

evidence on record, the trial court acquitted Duli Chand @ Kalu and

convicted the appellant Kiran Kumar under Section 302 IPC for having

committed the murder of Mukesh. The trial court examined the

testimonies of the two alleged eye-witnesses PW-6 Prem Chand and PW-7

Ram Gopal in great detail. Insofar as PW-7 Ram Gopal is concerned, the

trial court disbelieved the presence of this witness. The trial court also

disbelieved the recovery of the knife and clothes at the instance of Kiran

Kumar. The trial court observed that PW-6 Prem Chand, PW-7 Ram

Gopal, PW-14 Jagdish and PW-19 Ishwar Singh are the witnesses of

arrest and disclosure. PW-6 Prem Chand had stated that the disclosure

statement (Exhibit PW-6/C) of the appellant Kiran Kumar was in his own

hand. Since this was not the case, the trial court observed that the

authenticity of the alleged disclosure statement (Exhibit PW-6/C) was

doubtful.

5. The recovery of the knife as well as the clothes was disbelieved

by the trial court. The reason for this, as disclosed in the impugned

judgment, is that the recovery of the knife and clothes was alleged to have

been made from a parchhatti, but PW-6 Prem Chand and PW-7 Ram

Gopal were not able to describe the size of the parchhatti. They also did

not know whether the parchhatti had a door or not. Apart from this, PW-

14 Jagdish, had turned hostile and had categorically stated that the blood

stained clothes had not been recovered in his presence. Furthermore, with

regard to the knife, he had stated that it was produced by the appellant

Kiran Kumar in his presence, but the recovery memo (Exhibit PW-6/E)

did not bear his signatures. The trial court was also of the opinion, and

rightly so, that the prosecution has not been able to link the knife (Exhibit

P-1) with the murder inasmuch as the CFSL report (Exhibit PW-19/F) did

not confirm that the blood on the knife was of human origin. It is in these

circumstances and, rightly so, that the trial court disbelieved the

disclosure of the appellant Kiran as well as the consequent recovery of the

knife and clothes. In the absence of this evidence, the trial court was left

with the alleged ocular evidence of PW-6 Prem Chand and PW-7 Ram

Gopal.

6. The trial court entertained serious doubts about the presence of

PW-7 Ram Gopal inasmuch as PW-7 Ram Gopal claimed to be present at

the time of occurrence as also in the hospital, yet the MLC (Exhibit PW-

18/A) in respect of Mukesh neither mentions the father's name nor the

address of Mukesh and in response to both these pieces of information,

the word "Unknown" is written. We agree with the reasoning adopted by

the trial court that if PW-7 Ram Gopal, who was the brother-in-law of

Mukesh and was, therefore, closely related to him had, in fact, gone with

Mukesh to the hospital, he would have definitely given the name of

Mukesh's father as well as the address to the person preparing the MLC

and, therefore, the word "Unknown" would not have been written thereon

against the father's name and address of Mukesh.

7. From a reading of the evidence on record and the reasoning

adopted by the trial court, we find that, inter alia, PW-6 Prem Chand has

been disbelieved as regards the presence of PW-7 Ram Gopal and also as

regards the disclosure made by the appellant Kiran Kumar. PW-6 Prem

Chand has also been disbelieved with regard to the recovery of the alleged

weapon of offence. Because of this, Mr Andley, the learned senior

counsel appearing on behalf of the appellant, submitted that when PW-6

Prem Chand's testimony cannot be believed on these vital issues, the

testimony ought to be rejected in toto. In any event, he submits that these

circumstances create a serious doubt with regard to the credibility of PW-

6 Prem Chand. Once such a doubt is created, the benefit must go to the

appellant.

8. We find that this very aspect had also been considered by the

trial court in the impugned judgment. The trial court was conscious of the

fact that PW-6 Prem Chand's testimony was not believable in its entirety

and, particularly with regard to the presence of PW-7 Ram Gopal and the

disclosure of the appellant Kiran Kumar and the consequent recovery of

the clothes and the alleged weapon of offence. Yet, as PW-6 Prem

Chand's presence at the time and place of occurrence could not be

doubted because PW-6 Prem Chand himself had received injuries and he

had also accompanied Mukesh to the hospital. This fact is clear from the

MLC (Exhibit PW-18/B, which is in respect of PW-6 Prem Chand. In

fact, even DW-1 (Chander Bhan), who claims to be the driver of the three

wheeler scooter in which Mukesh was allegedly removed to the hospital,

stated that one Prem and one other person also went within him to the

hospital. In his cross-examination, DW-1 stated that Prem Chand and the

injured were both in the open body attached to the TSR. DW-2 (Rampal

Mohanpuria), in his cross-examination, also stated that Prem and one

other person had gone with the injured in the TSR.

9. PW-11 (Constable Babu John) also affirmed that Mukesh was

brought to hospital by PW-6 Prem Chand. In these circumstances, we

agree with the conclusion arrived at by the trial court that the presence of

PW-6 (Prem Chand) at the place of occurrence is established as also the

fact that PW-6 Prem Chand had accompanied Mukesh to the hospital.

10. PW-6 (Prem Chand), in his testimony, stated categorically that

Mukesh was a good friend of his and that on 02.01.1995 at 6.45 p.m.,

when he and Mukesh were sitting in the latter's godown, the appellant

Kiran Kumar and co-accused Kalu arrived there and started abusing

Mukesh. Kiran is said to have told Kalu that it is Mukesh who had

damaged their flags on 31st and that he had insulted them and, therefore,

he is not to be spared. On account of the noise of this quarrel, PW-7 Ram

Gopal is alleged to have come there. Of course, the presence of PW-7 has

been disbelieved and, therefore, this part of PW-6's testimony, as regards

the presence of Ram Gopal, is to be discarded. However, PW-6 Prem

Chand further goes on to state that co-accused Kalu caught the right hand

of Mukesh from behind and exhorted Kiran Kumar to kill Mukesh and

thereafter Kiran Kumar inflicted the knife injury on the chest of and he

gave another injury below the left armpit. He further testified that when

he raised an alarm alongwith Ram Gopal, co-accused Kalu hit him on

head with an iron rod and then both the assailants ran away. He also

stated that he and Ram Gopal took the blood soaked Mukesh to Ram

Manohar Lohia Hospital in a three wheeler and that after examination by

the doctors, he was subsequently declared dead.

11. We have already indicated above that we are in agreement with

the conclusion arrived at by the trial court that PW-7 Ram Gopal's

presence at the scene of occurrence is very doubtful and, therefore, to the

extent PW-6 Prem Chand's testimony refers to incidents relating to PW-7

Ram Gopal, the same is to be discarded from consideration. This being

the case, we have to see what remains. That PW-6 Prem Chand was

present at the scene of occurrence cannot be denied and stands

established. He is, therefore, an eye witness of the incident. He may have

stated that two blows were inflicted by the appellant Kiran Kumar, one on

the chest and one under the left armpit, whereas the post mortem indicates

a third injury, but this part of his testimony that the appellant Kiran Kumar

had assaulted Mukesh with a knife and had given him a blow in the chest

and below the left armpit could not be shaken in cross-examination and is

also corroborated by the post mortem report (Exhibit PW-13A). The

presence of a third injury, as indicated in the said post mortem report, does

not belie PW-6 Prem Chand's statements. In any event, the injury which

was sufficient in the ordinary course of events to have caused the death of

Mukesh, was injury No.3, which is the wound inflicted in the left axilla

(below the left armpit). This injury has clearly been stated to have been

inflicted by the appellant Kiran Kumar in the testimony of PW-6 Prem

Chand. Thus, separating the "chaff from the grain", the truth remains that

PW-6 Prem Chand was an eye witness to the incident and that he had seen

the appellant Kiran Kumar inflict the fatal blows on Mukesh as a result of

which Mukesh died subsequently in hospital.

12. For the aforesaid circumstances, we see no infirmity in the

impugned judgment and consequently we see no reason to disturb the

finding of guilt under Section 302 IPC insofar as the appellant Kiran

Kumar is concerned in connection with the death of Mukesh. The appeal

is dismissed and the conviction and order on sentence are maintained.

The appellant, who is on bail, be taken into custody to serve out the

remainder of his sentence.

BADAR DURREZ AHMED, J

V.K. JAIN, J SEPTEMBER 22, 2010 dutt