Delhi High Court

Ashok Kumar vs The State (Delhi Admin) on 24 September, 2010

Author: Badar Durrez Ahmed

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Judgment delivered on: 24.09.2010

+       CRL.A. 304/1997


ASHOK KUMAR                                                  .... Appellant

                                        - versus -


THE STATE (DELHI ADMIN)                                      .... Respondent

Advocates who appeared in this case:-

For the Appellant          : Mr Rajiv Awasthi
For the Respondent         : Ms Richa Kapur


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. This appeal is directed against the judgement dated 26.04.1997

delivered by the Additional Sessions Judge, Delhi in Sessions Case

No.61/94, arising out of FIR No. 141/91 u/s 302 IPC of Police Station

Adarsh Nagar, whereby, while co-accused Ram Gopal and Ram Parsad were

acquitted, the appellant (Ashok Kumar) has been convicted u/s 302 IPC for

the murder of Vinod. By virtue of the said conviction, the appellant has

been sentenced by a separate order dated 29.04.1997 to undergo

imprisonment for life and to pay a fine of ` 500/- and in default of the fine

to undergo further rigorous imprisonment for two months.

2. The appellant and co-accused Ram Gopal and Ram Parsad were

charged u/s 302 IPC read with section 34 IPC of having intentionally or

knowingly, in furtherance of a common intention, committed the murder of

Vinod on 04.06.1991 at about 6.00 pm at the Bus Stop of Village Bharola,

G.T.K. Road, Delhi.

3. Before we proceed further it would be appropriate to set out the

relationship between the deceased Vinod and the accused. This would be

clear from the following figure:

4. The prosecution case, shorn of unnecessary details, is that the

complainant Kasturi Devi (PW3) was residing in Village Bharola, Azadpur,

Delhi alongwith her husband Pyare Lal and their son Vinod. The accused

Ashok Kumar, Ram Parsad and Ram Gopal also resided in the same village.

It is alleged that PW3 Kasturi Devi had a dispute with Dayanand (brother of

accused Ram Parsad and Ram Gopal) in respect of a wall. Dayanand's

house was adjoining Kasturi Devi's house. On 04.06.1991, Vinod had set

out for Shalimar Bagh to return the VCR which he had taken on rent for

viewing a movie. His mother PW3 Kasturi Devi allegedly followed him as

she had to purchase wheat flour from some shop. At about 6.00 pm, when

Vinod allegedly reached the Bus Stand of Village Bharola, accused Ashok

Kumar, Ram Gopal and Ram Parsad appeared on the scene. Ram Gopal and

Ram Parsad are said to have caught hold of Vinod on either side. The

appellant Ashok Kumar who is alleged to have taken out a knife in the

meanwhile stabbed Vinod 2-3 times on his left buttock as well as on his

chest. PW3 Kasturi Devi, who was allegedly at a distance of about 15 paces

saw this and rushed to save her son Vinod. She was allegedly pushed by

Ram Parsad and she fell on the road on her back. It is further the case of the

prosecution that Vinod had started bleeding profusely and had fallen down

on the central verge of GTK Road. The three assailants ran away from the

spot. It is alleged that PW7 Surinder Kumar, who is a son-in-law of PW3

Kasturi Devi, had also witnessed the incident from the Adarsh Nagar Bus

Stand, GTK Road and he happened to be there as he had come from his

house and was going towards his in-laws house (i.e., PW3 Kasturi Devi's

house).

5. It is further alleged that PW3 Kasturi Devi became unconscious on

seeing her son bleeding and regained consciousness only after 15-20

minutes. In the meanwhile, PW12 SI Kanshi Ram who was incharge of

PCR Van No.R-90, on receiving information that one person was lying in an

injured condition near the DTC Bus Stand at Village Bharola at GTK Road,

reached the spot and took injured Vinod to H.R. Hospital and got him

admitted there at about 6.30 pm. On the way to the hospital, Vinod is alleged

to have told PW12 SI Kanshi Ram that he knew the person who had stabbed

him. PW3 on regaining consciousness, when she came to know that her son

had been removed to hospital, rushed to H.R. Hospital in a TSR (three-

wheeler scooter rickshaw). In the Hospital, PW3 Kasturi Devi's statement

Ex. PW3/A was recorded by SI Mahender Singh who sent the ruqqa for

registration of the case and on the basis of which the FIR No. 141/91 was

recorded at about 8.50 pm on 04.06.1991 by HC Shamsuddin, initially u/s

307/34 which, on the death of Vinod, was subsequently converted to one u/s

302/34 against the three accused.

6. SI Mahender Singh then reached the place of occurrence and prepared

a rough sketch plan (Ex. PW17/B) on the pointing out of PW3 Kasturi Devi

and PW7 Surinder Kumar. He also lifted the blood stained earth control

sample from the spot and seized the blood stained clothes (Salwar and

Kurta) of PW3 Kasturi Devi. Vinod succumbed to his injuries and passed

away in the said hospital at about 11.30 pm on 04.06.1991. The appellant

Ashok Kumar was allegedly arrested at about 8 pm on 05.06.1991. Ram

Parsad and Ram Gopal were said to have been arrested at 10.20 pm on

07.06.1991 and 9.30 pm on 09.06.1991, respectively.

7. As many as 23 witnesses were examined by the prosecution in an

attempt to prove their case against the three accused. The defence did not

produce any evidence. After examining the evidence on record, the learned

Additional Sessions Judge (ASJ), as aforesaid, acquitted Ram Gopal and

Ram Parsad but convicted the appellant Ashok Kumar u/s 302 IPC.

8. We may point out that out of the two alleged eye witnesses, the

learned ASJ disbelieved and discarded the testimony of PW7 Surinder

Kumar in toto. And, the conviction of the appellant has been based

primarily on the testimony of PW3 Kasturi Devi which has been believed in

part. Coming back to PW7 Surinder Kumar, it ought to be mentioned that

after he was examined in chief and cross-examined by the learned counsel

for Ashok Kumar, further cross-examination on behalf of the accused Ram

Gopal and Ram Parsad was deferred as the witness was not feeling well.

Unfortunately, before he could be cross-examined by the learned counsel for

Ram Gopal and Ram Parsad, PW7 Surinder Kumar passed away. Hence, his

testimony could not be read against Ram Gopal and Ram Parsad. Even in

respect of the appellant Ashok Kumar, the testimony of PW7 Surinder

Kumar was rejected as being unreliable and not believable. PW7 Surinder

Kumar stated that he standing at Adarsh Nagar bus stand en route to his in-

laws' house when he saw that Ram Gopal and Ram Parsad had caught hold

of his brother-in-law Vinod. He also stated that his mother-in-law was

trying to separate Vinod from the clutches of the accused persons and Ram

Parsad gave her a push as a result of which she fell on the pavement.

Thereafter, Ashok gave three knife blows to Vinod, who started bleeding.

The accused persons fled with the knife towards Adarsh Nagar. He stated

that he went running to his in-laws' house to intimate them.

9. Pausing here, we may observe that his testimony lacks in specifics.

He does not state as to where the accused assaulted Vinod. Was it at Adarsh

Nagar Bus Stand or was is at the Village Bharola Bus Stand (diagonally

across the GTK Road)? Or was it on the GTK Road or the verge dividing

the road? He also does not mention about Vinod falling down after being

stabbed. His presence is therefore very doubtful on this count alone. But

there are more reasons to disbelieve this witness as we find that his conduct

was not natural if, indeed, he had seen the incident. He was closely related

to the victim Vinod, being his brother-in-law. He had seen him being

stabbed and had also seen his mother-in-law Kasturi Devi being pushed onto

the pavement. The assailants had fled from the scene. As there was no

danger to him, his normal reaction would have been to rush to the aid of his

injured brother-in-law. He did not do so. He also did not bother to go to the

assistance of his mother-in-law whom he had seen being pushed onto the

pavement. On the contrary, he stated that he ran towards his in-laws' house

in village Bharola . Furthermore, he does not say as to who he met in the

village or as to who he informed about the incident.

10. Continuing further with his testimony, we find that he stated :-

"When I returned at the spot from the village Bharola I met the police at the spot. The police had taken blood sample and earth sample and did the writing work which I had signed. I have seen memo Ex. PW7/A which is signed by me at point A. My mother in law who had gone to the hospital returned to the spot, the police asked for her clothes i.e., Salwar and Kurta because they were blood stained. Writing work to this effect was also done which is Ex PW7/B which bears my signature at point A. The stains on the clothes came when she tried to pick up Vinod after stabbing."

11. We may recall that it was PW12 SI Kanshi Ram who was incharge of

the PCR Van No.90 who first reached the spot on receiving information of

an injured person lying there. PW12 did not say that he met any relative of

the injured Vinod at the spot. On the contrary, on being cross-examined by

the counsel for Ram Gopal, PW12 admitted that he "did not enquire from

any person present at the spot about the incident". Furthermore, he also

admitted that - "nobody at the spot had told me that he was the relative of

the injured". It is thus obvious that PW7 Surinder Kumar was not present on

the spot when PW12 Kanshi Ram arrived in his PCR Van and removed the

injured Vinod to hospital. Now, let us see the testimony of PW17 SI

Mahender Singh who stated that he met Surinder Kumar at the spot when he

went there after obtaining the MLC of injured Vinod and after the doctor had

declared Vinod unfit for making a statement. In his cross-examination,

PW17 SI Mahender Singh stated that from the hospital he reached the spot at

8.40 pm. The incident is said to have taken place at 6 pm. And, PW7

Surinder Kumar stated that when he returned to the spot he met the police

viz. PW17 Mahender Singh. But this meeting could not have happened

prior to 8.40 pm. So, if PW7 Surinder Kumar were to be believed, he ran to

the village, which was a stones throw away, at 6 pm and returned to the spot

over 2 ½ hours later! This is wholly unbelievable, particularly when he had

rushed to the village only to inform the others of the incident and he knew

that his brother-in-law was badly injured and bleeding profusely. Would he

not have returned to the spot immediately, even if we were to believe that he

had witnessed the incident and that he had rushed to the village?

12. Even the meeting and the preparation of Ex. PW7/A and Ex PW7/B at

the spot are belied by this witness himself as he has stated in his cross-

examination at the instance of appellant Ashok Kumar that -

"On the following day of occurrence I had gone to the police station. I had gone at about 6 or 7 P.M. There the police showed me the prepared papers and asked me to sign which I accordingly signed. Those papers are Ex. PW/7A & 7/B."

The testimony of PW7 Surinder Kumar is, therefore, very suspect, to say the

least. The learned ASJ has rightly rejected it in toto even in respect of the

appellant Ashok Kumar.

13. That leaves us with the testimony of the other alleged eye-witness -

PW3 Kasturi Devi. The trial court believed this witness in part and

convicted the appellant Ashok Kumar. As per PW3 Kasturi Devi, the

accused Ram Gopal and Ram Parsad had caught hold of Vinod from both

sides and Ashok assaulted Vinod with "some" sharp (painee) object on the

left pelvic joint and 2-3 times on the back and once on the chest. First of all,

the incident could not have happened as alleged as the learned ASJ

disbelieved the presence of more than one attacker. This was on the basis of

the testimony of PW12 SI Kansi Ram who took Vinod to hospital. PW12

stated that - "[o]n the way to the Hospital, the injured had told me that the

person who had stabbed him was known to him." Even Ex. PW8/A (the

MLC of injured Vinod) clearly indicated that Vinod was conscious at the

time of his arrival (6.35 pm on 04.06.1991) at the hospital. The said MLC

further reveals that alleged history of "being stabbed by somebody". The

implication is that Vinod was attacked by a solitary assailant.

14. Even if we look at the nature of injuries we find that it negates the

possibility of two persons catching hold of Vinod on either side when the

blows were given. As per PW6 Dr L.K. Baruwa, who conducted the post-

mortem examination on the dead body of Vinod, the following injuries were

seen:

1. An incised wound on the left buttock. Placed horizontally with upper part of size 5 cm. x 1 cm. x 15cm.

2. Incised wound on the lateral aspect of the left thigh on its lower third placed obliquely of size 5.5 cm. x 0.5 cm. x skin to muscle deep.

3. Incised wound on the middle of the front of the chest placed obliquely horizontal of size 3 cm. x 0.2 cm x skin deep.

4. Incised wound on the lower part of front chest on right side 10 cm. below the right nipple of size 2.5 cm. x 0.2 cm x skin deep.

5. Abrasions on the back of right elbow involving an area of 1 ½ inches x 1 inch.

6. Incised wound on the left side on the front of the chest, 15 cm. below the left anterior axillary fold placed horizontally of size 9 cm. x 1cm. x skin to muscle deep.

15. Injuries 3 and 4 are small skin deep cuts on the chest. Injuries 1, 2

and 6 are all on the left side. Injury 1 (on the left buttock) was obviously

caused from behind. Injury 2 is on the side of the lower left thigh. Injury 6

is also on the left side, but as it is below the anterior (front) axillary fold, it

could be caused only from the front. Thus, for causing the injuries 1, 2 and

6 as also injuries 3 and 4, the attacker must have moved in such a manner

that he could inflict injuries from the back to the front (or vice versa) around

the left of the victim. But, that would not be possible if Vinod had been held

by someone on his left. Consequently, the nature of injuries also belie the

prosecution case of Vinod being caught hold of by two persons on either

side while the appellant was free to deliver knife blows on Vinod.

16. Once, the three-attackers theory dissolves into a sole attacker

situation, the entire testimony of PW3 Kasturi Devi becomes suspect. If

Ram Gopal and Ram Parsad are removed from the scene, the statement of

PW3 that she was caught by Ram Parsad and pushed back, as a result of

which she fell on her back, also goes.

17. Although motive is not necessarily a critical element when there is a

clear eye witness account of an offence, in the present case we find that it

does have a bearing as the ocular testimony is not entirely believable. Going

back to the genealogical table at the beginning of this judgment, we find that

the dispute, as alleged by the prosecution, was in respect of the common

wall between the adjoining houses of PW3 Kasturi Devi and Dayanand.

Now, Dayanand, Ram Gopal and Ram Parsad are brothers. They are the

cousins of PW3 Kasturi Devi's husband PW2 Pyare Lal. On the other hand

the appellant Ashok is the grandson of PW2 Pyare Lal's brother. If the

dispute was between Kasturi Devi and Dayanand, who was Jai Lal's son,

over their common wall and if Ram Parsad and Ram Gopal (brothers of

Dayanand) were not involved in the offence, what issue would appellant

Ashok, who belonged to a different branch of the family, being a descendant

of Ram Kela, have with Kasturi Devi or her son Vinod? It is not the case of

the prosecution that there was any dispute with Ashok. So, the element of

motive also becomes very doubtful.

18. Another reason why we feel that the testimony of PW3 Kasturi Devi

cannot be relied upon for convicting Ashok is that according to her when she

saw her son Vinod bleeding she became unconscious and regained

consciousness only after 15-20 minutes when Vinod had already been taken

to hospital in the PCR van. No witness (other than PW7 Surinder Kumar,

whose testimony has been discarded) has come forward to testify that PW3

was present at the scene of occurrence or that she had become unconscious.

It is the case of the prosecution that Kasturi Devi's clothes got stained with

the blood of her son Vinod when she went to the spot to lift him. And, that

she became unconscious on seeing her son bleeding. Which means that she

must be lying just next to her injured son. But, PW12 SI Kanshi Ram, who

was incharge of PCR Van No.R-90 and was the first person to arrive at the

spot, did not state that he saw any lady lying unconscious next to the injured

Vinod. On the contrary, in his cross-examination, he stated that -

"At the time when I reached the spot, injured was lying on the left curve and about 5/10 ladies and gents were also standing at the bus stand surrounding the injured".

It is obvious that there was no reference to Kasturi Devi as she could not be

standing because, according to her, she had become unconscious. Ms Richa

Kapoor, the learned counsel for the state submitted that in the following

portion of PW12's cross-examnination, a reference to Kasturi Devi is

apparent:

"No body at the spot had told me that he was the relative of the injured. Out of the 4/5 ladies, one wanted to tell me something but I did not listen as she could not speak and I removed the injured to the Hospital."

We do not agree. The 4/5 ladies referred to above are out of the 5/10 ladies

and gents mentioned earlier and they were all stated to be standing. By no

stretch of imagination could an unconscious person stand. Clearly, the 4/5

ladies mentioned by PW12 can have no reference to Kasturi Devi, who, as

per her own statement had become unconscious and continued in the same

state till after her injured son Vinod had been removed to hospital.

19. All these circumstances tend to negate the presence of PW3 Kasturi

Devi at the time of the occurrence. As a consequence, we cannot base a

conviction on her testimony. Apart from this, there is the added

circumstance that the VCR which Vinod was supposed to be carrying was

never recovered. The murder weapon was also not recovered. There is too

much doubt in the prosecution's case and the benefit must go to the