Gulab vs State
2011 Latest Caselaw 3949 Del

*                   IN THE HIGH COURT OF DELHI, AT NEW DELHI

                                                                       Decided on : 16.08.2011


+                                    CRL.A. 171/1998 & Crl. A. 279/1998


      CRL.A. 171/1998
      GULAB                                                                     ..... Appellant
                                     Through: Sh. Anurag Jain, Advocate.
                    versus

      STATE                                                                  ..... Respondent

Through: Sh. M.N. Dudeja, APP.

      Crl. A. 279/1998
      SUDAMA                                                                 ..... Appellant
                                     Through: Sh. Sumeet Verma, Amicus Curiae.
                    versus

      STATE                                                                  ..... Respondent
                                     Through: Sh. M.N. Dudeja, APP.

      CORAM:
      HON'BLE MR. JUSTICE S. RAVINDRA BHAT
      HON'BLE MR. JUSTICE G. P. MITTAL

      1.     Whether reporters of local papers may be
             allowed to see the Order?                           Yes

      2.     To be referred to the Reporter or not?              Yes

      3.     Whether the Order should be reported
             in the Digest?                                      Yes

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

%

Brief Overview

1. The appellants (hereafter called by their names, Sudama and Gulab) impugn a judgment and order of the Additional Sessions Judge, Delhi, dated 21.02.1998 in FIR No.106/1995,

CRL. A. 171/1998 & CRL.A. 279/1998 Page 1 whereby they were convicted of the offence punishable under Section 302/34 IPC. They were sentenced to undergo life imprisonment and fined a sum of ` 2,000 each. In default of payment of fine the convicts would further undergo rigorous imprisonment for 6 months each.

2. The Prosecution's case is that on the night intervening 27/28-4-1995, information regarding a quarrel was received at the Police Station, Rohini. The SHO, along with a few other police men reached the Rajiv Jhuggi camp, Ahimsa Marg, where it had taken place. When they reached the spot, PW-3 Haliman - the deceased's wife, and a few others had brought back her husband's body in a three wheeler, after having taken it to Shree Balaji Hospital, where the doctors had declared him dead. She then met the SHO and her statement was recorded; an inquest over the dead body was performed, and the body was sent for post mortem. The facts recorded were that, PW-3 and her husband were walking back home after shutting shop, when they saw the two appellants at Rajiv Chowk. They asked her husband to consume liquor with them but he refused. This led to a quarrel, and in the course of the altercation, Sudama gave her husband lathi blows on his head and leg, and Gulab gave him a knife blow on his chest. She started screaming for help („Bachao! Bachao!‟). On hearing her screams, PW-2 (Jaan Mohammed) and PW-4 (Mohammed Shamim) reached the spot. She says that the two accused ran away as soon as she started screaming for help. She, along with the persons gathered there, took her husband to the hospital, where he was declared dead. Then they brought the body back to the jhuggi, by which time the police too had arrived.

3. On 28-4-1995, the police received information that the accused Sudama could be found in the jhuggi near Jaipur Golden Hospital. The police team, along with PW- 2 reached the jhuggi, where on the basis of information already received, and also the identification of the accused by PW-2, he was arrested at around 6.30 PM. On being interrogated, Sudama revealed that he had hidden the seru used in the attack, in some bushes behind Shakti Apartment (his disclosure statement was marked as Ex. PW-6/C during the trial). He was taken to the place by the police, and he went into the bushes and recovered the Seru which was about three feet long and blood stained. Then Sudama was brought to the spot of occurrence of the incident and asked to show where the incident took place, which he did. Thereafter, the SHO recorded the statements of Jaan Mohd (PW-2).

CRL. A. 171/1998 & CRL.A. 279/1998 Page 2

4. On 3-5-1995, the police received information regarding the whereabouts of Gulab, who was apparently to be found in the Central Park of Sector XIV. They proceeded to the location with PW-4. On reaching the spot they found him, he was identified by PW-4 and apprehended. On interrogation, he too revealed where he had hidden the Churra (in bushes in front of Lal Jyoti Apartment, disclosure statement Ex.PW- 6/E). He was taken there, and the blood stained Churra was recovered (Ex. PW-6/H). He too identified the place of occurrence of the crime. Both the accused were charged under Sections 302/34 IPC; they pleaded not guilty and claimed trial. After considering the prosecution witnesses' testimonies, as well as the materials brought on record, and hearing the submissions of counsel for parties, the Trial Court, by the impugned judgment, convicted the appellants, for the offences they were charged with, and sentenced them, in the manner described previously in the judgment.

5. During the course of the trial, sixteen witnesses were examined. PW-2 Jaan Mohd, PW-3 Haliman, and PW-4 Mohd. Shamim were the main witnesses since according to their Section 161 CrPC statements they had witnessed the incident which resulted in the death of Zahiruddin Khan. However, during the course of the trial, all three witnesses were declared hostile by the prosecution because at different stages of their examination, each one made a complete turnaround with respect to having actually witnessed the incident. Each denied that he/she had seen the two accused attack Zahiruddin.

6. The Trial Court relied on the Supreme Court judgments reported as Rabinder Kumar Dev vs. State of Orissa 1976 (4) SCC 233 and Sayeed Iqbal vs. State of Karnataka 1980 (1) SCR 95 where it was held that prosecution witnesses' testimony could not be rejected in toto even if he or she is declared hostile. The evidence of such witness cannot be effaced altogether, but those parts can be considered to the extent that they can be considered dependable. Therefore, the Trial Court relied on the first deposition made by the witness, wherein she had stated that she had witnessed the attack on her husband by Sudama and Gulab, on the ground that this deposition, to the extent that it was consistent with her statement made to police immediately after the attack, under Section 161, was not made under any police pressure and that it was probable that she was with her husband at the time of the attack and that she had witnessed the attack in the moonlight; and her later deposition under Section 311 CrPC, where she stated having made her earlier statement under police pressure and falsely implicated the two accused,

CRL. A. 171/1998 & CRL.A. 279/1998 Page 3 was disbelieved on the ground that something must have transpired that compelled her to wriggle out of her earlier statement. A similar approach was taken in respect of the testimonies of PW-2 and PW-4 - whose earlier depositions were accepted, and the later versions, were rejected.

7. It was argued on behalf of the Appellants that the prosecution failed to establish the guilt of the accused beyond reasonable doubt, as its star witness PW-3 Haliman (wife of the deceased) and other witnesses PW-2 and PW- 4 did not support the prosecution story and were declared hostile. It was urged that the Trial Court erred in disbelieving the testimony of PW-3 Haliman, recorded on 20.1.1998 under Section 311 Cr.PC, where she had stated that she had deposed falsely against the accused due to police pressure. The Trial Court disbelieved her statement under Section 311 Cr.PC stating that there was high probability of her being won over by the Appellants. The Appellants urge that this opinion was not founded on any substantial basis as the Appellants were entirely in police custody following their arrest and throughout the course of the trial. The Trial Court also believed that PW-2 had been won over by the Appellants.

8. It was next urged that the appellant was falsely implicated by the local police, and that the case is based on a false story which is evident from the relevant and important documents such as Ex. PW- 10/A, Ex. PW-10/B, Ex. PW-10/C etc. Counsel argued that the findings of the CFSL (Ex. PW-16/J and Ex. PW- 16/K) do not connect the appellant with the alleged offence. The tests performed on the blood stained chopper, allegedly recovered at the instance of Gulab, could not identify the blood found on it as belonging to the deceased. The appellant submitted that even otherwise, the CFSL report could not be relied upon, as they are not admissible as evidence as they have not been proved.

9. It was urged that even if the prosecution is said to have proved its allegations, the Trial Court erred in holding that the Appellants were guilty of the offence punishable under Section 302; at best, their conviction could have been for the offence punishable under Section 304 Part II, IPC, since the prosecution did not establish any real motive. Having regard to the nature of the injury, there was no intention to kill the deceased.

10. The learned APP argued that the Trial Court's findings required no interference, because it adopted the correct approach. Counsel submitted that all eyewitnesses, particularly the deceased's wife, had supported the prosecution case, in the examination in chief. However, they

CRL. A. 171/1998 & CRL.A. 279/1998 Page 4 did not support the prosecution in cross examination, and appeared to have been won over. Those parts of their testimonies were untrustworthy, and the Trial Court correctly rejected it, and chose to rely on the examination in chief, which was not only plausible, but completely supported the case against the accused. Here, argued the APP, even if all other evidence, save that of PW-3's examination-in-chief were to be taken into account, the offences which the Appellants are alleged to have committed, stood proved, beyond reasonable doubt.

11. It would be necessary now to analyze the depositions of the material witnesses. PW-2 Jaan Mohammed, a tea vendor at Rajiv Jhuggi, Rohini, in his examination-in-chief deposed that on 28-04- 1995, at about 12-12.30 A.M, when he was at home, he heard Haliman (PW-3), crying out that her husband (the deceased) had been stabbed by someone. Haliman went to his house, and said the same thing. He then accompanied PW-3 to where her husband was lying, bleeding, and moved him, with the help of 1-2 other persons, besides Haliman, to Shri Balaji Hospital on the deceased's three wheeler. At Balaji Hospital, the doctors declared him dead, and so they brought his body back to Rajiv Jhuggi. His body was taken to the police station. Haliman, her brother, him and some other people accompanied the body to the police station. The post-mortem was performed on the body, after which it was returned to them. He states that he did not witness the incident of the attack on Zahiruddin, and could not explain how the deceased had received those injuries or identify who was responsible for them which is contrary to his statement recorded under Section 161 CrPC. In cross-examination, he was confronted with her statement under Section 161, he denied nearly everything that was recorded in the statement. He categorically denied that the police had interrogated him regarding the incident on 28-04-1995. He says that they only obtained his signature on some papers when he had returned from the cremation of the deceased. He said he knew both of the accused men, as well as the deceased as they lived in the same jhuggi as he did.

12. PW-2 denied telling the police that the two accused used to sell illicit liquor in the jhuggi which was not liked by its residents, but that they did not take any action since they were scared of the accused. He denied having told the police that the deceased had threatened to report them to the Police if they did not stop the sale of liquor. He denied that he had told the police that Haliman had come to his house to tell him that someone had stabbed Zehru with a knife. He denied that the reason he had not told the police of this was because Haliman had not come to his

CRL. A. 171/1998 & CRL.A. 279/1998 Page 5 house to tell him of the attack. He denied having stated that he was not in his house when he heard Haliman. Most importantly, he was confronted with the portion of his Section 161 statement where he had stated that he had seen the two accused beating the deceased, one with a charpaai seru and the other with a churra. He denied having made such a statement to the police. He denied having been 20/25 metres away and witnessing the two accused run away from the spot. He denied that the police recorded Haliman's statement in his presence, once they brought back the body to the jhuggi from the hospital. He denied having stated that the Police lifted soil and blood samples in his presence, or that the police received information about Sudama's location in his presence. He denied identifying Sudama, leading to his arrest, and that in his presence the accused pointed out the location from which his weapon of offence was recovered. When the weapon of offence and the blood stained sari of the deceased's wife were shown to him, he refused to identify them saying neither had been recovered in his presence.

13. PW-3 Haliman is the deceased's wife; she deposed that she knew the two accused, as they used to sell liquor in her neighborhood, and that they used to quarrel with her husband since he used to tell them not to sell liquor in the neighborhood. She stated that on the night intervening 27/28 April, she and her husband were walking back home after shutting shop, when they saw the two appellants at Rajiv Chowk. They asked her husband to consume some liquor but he refused. This led to a quarrel, and in the course of the altercation, Sudama gave her husband lathi blows on his head and leg, and Gulab gave him a knife blow on his chest. She started screaming for help („Bachao! Bachao!‟). Upon hearing her screams, PW-2 and Mohd. Salim reached the spot. She says that the two accused fled when she started screaming for help. She along with those gathered there, took her husband to the hospital, where he was declared dead. Then they brought the body back to the jhuggi, by which time the police had also arrived there. She made a statement to the police (Ex. PW-3/A). Then the body was taken to the police station. She also handed over her blood stained saree to the police.( Ex. P1). The Police also seized earth from the spot of the incident. She stated that she had pointed out the spot of the incident to the photographer. In cross-examination, she deposed that Jaan Mohammed was her brother-in-law. She mentioned that she could not recall the length of the danda used by Sudama,or the knife used by Gulab.

CRL. A. 171/1998 & CRL.A. 279/1998 Page 6

14. It would be interesting to note that this witness (PW-3) later, moved an application, under Section 311 Cr.PC, asking that she be allowed to depose again, as this time her mind was clear. She stated that she had deposed against the accused and stated false facts in her earlier statement under police pressure. She stated that she had not seen either of the appellants doing anything to her husband. At the spot all that she could see when her husband was lying on the ground was some persons fleeing. She said that during the course of the altercation, she was unconscious. She categorically stated that she never saw either of the appellants doing anything to her husband. She even stated that she had not told the police that she saw Sudama and Gulab kill her husband. She denied that there had been some altercation between her husband and the two appellants over the consumption of liquor.

15. PW-4 Mohammed Shamim too lived in the same neighborhood. In his examination-in- chief he narrated a version of events which materially differed from that recorded in his Section 161 Cr.PC statement. He stated that he reached the spot of the incident only when he heard a sound, and when he got there, he saw Haliman crying and resting her husband on her lap. He along with some others then took him to the hospital where he was declared dead, after which his body was brought back to the jhuggi, from where the police took it to perform a post mortem. He denied that he had seen either of the accused at the police station. In his cross-examination, by the prosecution, when confronted with portions of the Section 161 Cr.PC statement reproduced above, he denied them all. He also deposed that he was called to the police station 8/10 days later and made to sign a few papers which were already written on. He did not know what was written on the papers as he was illiterate and the same was not read out to him.

16. From the sequence of events established through the evidence led, it is clear that a quarrel preceded the attack culminating in death of Zahiruddin Khan. The Appellants asked him to have some liquor. He refused and this led to a quarrel. It was during the course of the quarrel that the two appellants attacked him with a seru and danda respectively, and the injuries suffered led to his death. It is clear that motive was absent in the attack and since the death was the outcome of a quarrel, there could have been no premeditation. It is obvious that the requirement of intention to cause death, a precondition for the applicability of Section 300 Part I, is not made out. The postmortem report (Ex. PW-14/A) stated that death was the result of an injury caused by a knife. The deceased had been inflicted with four injuries; one (Injury No. 4) was a knife blow on the

CRL. A. 171/1998 & CRL.A. 279/1998 Page 7 chest; the others were abrasions and injuries caused by a rod, on the eyebrow, left shoulder and left zygoma region. PW-14 testified that death was the result of shock and hemorrhage consequent to the injury to the heart.

17. The above conclusion about the Appellants' participation in the attack, on the injured, does not dispose of their appeals. The question which the court has to address itself is what is the offence the Appellants are guilty of. The quarrel occurred at the heat of the moment; the cause was no doubt trivial. The Appellants of course were aggressors; however, the prosecution does not allege or prove any previous enmity between them and the deceased. The use of iron rod and a knife, though dangerous weapons, by itself cannot be a decisive circumstance. Several previous decisions (Jagrup Singh v. State of Haryana AIR 1981 SC 1552, Randhir Singh v. State of Punjab AIR 1982; Kulwant Rai v. State of Punjab AIR 1982; Jagtar Singh v. State of Punjab 1983 Cri LJ 852) have held that Explanation 4 to Section 300, would apply in such circumstances. The provision reads as follows:

"XXXXXX XXXXXX XXXXXX

Exception 4 : Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.

Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault.

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In Tholan v. State of Tamil Nadu 1984 (2) SCC 133, the Supreme Court held that:

"XXXXXX XXXXXXX XXXXXX

9. Learned Counsel for the Appellant contended that having regard to the genesis of the occurrence and the surrounding circumstances and the fact that one blow with a knife was given which happened to land on the chest it cannot be said with reasonable certainty that Appellant intended to commit murder of deceased Sampat or Appellant intended to cause the particular injury and the injury intended to be inflicted was sufficient in the ordinary course of nature to cause death.

CRL. A. 171/1998 & CRL.A. 279/1998                                                           Page 8
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12. It is equally not in dispute that Appellant gave only one blow with a knife. Appellant had no quarrel or dispute with deceased Sampat. It is not shown that deceased Sampat had anything to do with the chit organised by K.G. Rajan. No malice has been alleged to have been entertained by the accused towards deceased Sampat. The incident occurred on the spur of the moment. It appears that the house of the deceased Sampat was somewhere near the house in which the organizers or at least one of them was residing. Appellant had his dispute and grievance with the organizers of the chit. It is the prosecution case that accused abused organizers of the chit. Deceased Sampat. is not shown to be the organizer of the chit. Probably when the deceased Sampat told the accused not to misbehave in the presence of ladies and not to use vulgar and filthy language the Appellant retorted by questioning the authority of Sampat to ask him to leave the place. Presence of Sampat is wholly accidental. Altercation with Sampat was on the spur of the moment. Even the meeting was accidental. There arose a situation in which Appellant probably misguided by his own egocentric nature objected as to why Sampat should ask him to leave the place and in this background he gave one blow with a knife which landed on the right side chest of the deceased, which has proved fatal. Could the Appellant be said to have committed murder In other words, whether Part I or Part III of Section 300. I.P.C. would be attracted in the facts of this case. Even Mr. Rangam learned Counsel for the State of Tamil Nadu could not very seriously contend that the Appellant intended to commit murder of Sampat. His submission was that at any rate Appellant when he wielded a weapon like a knife and gave a. blow on the chest, a vital part of the body, must have intended to cause that particular injury and this injury is objectively found by the medical evidence to be fatal and therefore Part III of Section 300 would be attracted. On this aspect, the decisions are legion and it is not necessary to recapitulate them here merely to cover idle parade of familiar knowledge. One can profitably refer to Jagrup Singh v. State of Haryana AIR 1981 Randhir Singh v. State of Punjab AIR 1982; Kulwant Rai v. State of Punjab AIR 1982 and Hari Ram v. State of Haryana AIR 1983. to this list two more cases can be added Jagtar Singh v. State of Punjab MANU/SC/0105/1983 : 1983 Cri LJ 852 and Ram Sunder v. State of U.P. Crl. A. No. 555/83 decided on 24-10-83. Having regard to the ratio of-each of these decisions, we are satisfied that even if exception I is not attracted the requisite intention cannot be attributed to the Appellant. But in the circumstances herein discussed he wielded a weapon like a knife and therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death. In such a situation he would be guilty of committing an

CRL. A. 171/1998 & CRL.A. 279/1998 Page 9 offence under Section 304 Part II of the Penal Code. Having regard to the circumstances of the case a sentence of 5 years would be quite adequate.

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In Kulwant Rai it was held that:

               "XXXXXX                      XXXXXX                        XXXXXX

3. When the matter was before the High Court it was strenuously urged that in the circumstances of the case part I of Section 300 would not be attracted because it cannot be said that the accused had the intention to commit the murder of the deceased. In fact, that is conceded. More often, a suggestion is made that the case would be covered by part 3 of Section 300 Penal Code in that pot only the accused intended to inflict that particular injury but the injury intended to be inflicted was by objective medical test found to be sufficient in the ordinary course of nature to cause death. The question is in the circumstances in which the offence came to be committed, could it ever be said that the accused intended to inflict that injury which proved to be fatal. To repeat, there was an altercation. There was no premeditation. It was something like hit and run. In such a case, part 3 of Section 300 would not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the circumstances herein discussed, it would appear that the accused inflicted an injury which he knew to be -likely to cause death and the case would accordingly fall under Section 304 Part II Penal Code.

XXXXXX XXXXXX XXXXXX"

In a more recent decision, Dashrath Singh v. State of U.P 2004 (7) SCC 408 it was held that:

"XXXXXX XXXXXX XXXXXX

24. Firstly, it must be noted that the intention to cause the death of Pratap Singh cannot be imputed to the accused Raja Ram'. Apart from the finding of both the Courts that the common object of the unlawful assembly was not to kill Pratap Singh or any other member of his family but only to cause hurt or apply criminal force in order to desist them from asserting the rights over the disputed site, one more circumstance that rules out the intention on the part or any of the accused to kill Pratap Singh is that after the single blow inflicted on the victim with the

CRL. A. 171/1998 & CRL.A. 279/1998 Page 10 kanta, there was no further move to attack him. PW1 made this clear in his deposition. If Raja Ram intended to kill him, he would not have stopped at injuring him once only. Still, the question remains whether the offensive act done by the Appellant Raja Ram falls within clause thirdly of Section 300. That the Appellant intended to cause bodily injury to the victim by striking him on his head with a sharp-edged weapon the Appellant was carrying cannot be denied in view of the sequence of events deposed to by P Ws 1 to 4. From the medical evidence of P Ws 6 & 8 coupled with the magnitude of the injury caused on head with a dangerous weapon, it can be presumed that the injury which was inflicted and intended to be inflicted is sufficient in the ordinary course of nature to cause death. PW 8 who performed the surgery on 13.8.1977 noted the pre-operative diagnosis on Exhibit ka-9 as follows:

"Right front-parietal infected compound commutated fracture of skull with brain herniated, underneath: brain abscess and cerebrates with herniaion."

25. He prescribed post-operative treatment. PW 8 stated that the death was on account of the head injury which caused brain abscess and such injury could lead to the occurrence of death in the ordinary course of nature. The evidence of PW 8 leaves no doubt that the skull and brain injury caused to the victim was sufficient in the ordinary course of nature to cause death. PW6 who attended on the victim on the day of occurrence itself noticed the incised wound of 15 cm x 5 cm x brain tissue deep found on the head of the patient. He stated that the injury was appearing to be dangerous to life and the injury must have been inflicted by a sharp-edged object thrust with sufficient force."

XXXXXX XXXXXX XXXXXX"

18. Here too, the record shows no pre-meditation before the attack by the Appellants. Evidently they were drinking, and wanted the deceased to join them; he refused. This resulted in a brawl, during which they attacked him. They did use weapons. However, the lack of pre- meditation, and the nature of injuries points to the intention not being to kill the deceased, but to inflict such injuries which would have, in the normal course of nature resulted in his death. In view of these findings, the Appellants' conviction is substituted to one under Section 304 Part I,

CRL. A. 171/1998 & CRL.A. 279/1998 Page 11 IPC. Their sentence is substituted to RI for 8 years. The Appellants are entitled to remissions earned, if any, as well as benefit of Section 428, Cr. PC.

S. RAVINDRA BHAT (JUDGE)

G.P.MITTAL (JUDGE) AUGUST 16, 2011

CRL. A. 171/1998 & CRL.A. 279/1998 Page 12