Chaman Lal vs State
2011 Latest Caselaw 1000 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       Crl. A. 275/2001

%                                           Reserved on: 8th December, 2010

                                            Decided on: 21st February, 2011

CHAMAN LAL                                                    ..... Appellant
                              Through:    Mr. Jitendra Sethi and Mr. Abhishek
                                          Kumar Singh, Advocates
                     versus

                                                           ..... Respondent
STATE                          Through:    Mr. Manoj Ohri, APP

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may
   be allowed to see the judgment?                         Not necessary

2. To be referred to Reporter or not?                      Yes

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

MUKTA GUPTA, J.

1. On 11th July, 1987 at about 6:30 a.m. Sgt. Shivji Roy PW9 got recorded

an information at Police Station Nazafgarh vide D.D. Entry No. 9A Ex.

PW1/A stating that one Kishan Singh has been killed by Chaman Lal, a

washer man, in a quarrel and Chaman Lal has been detained by Sergeant

Dahiya in the guard room so police be sent and action be taken. On this

information, S.I. Hari Ram reached at the spot and recorded the statement of

Mohan Singh PW2, the son of the deceased vide Ex. PW2/A, who was present

at the spot. He stated that their neighbour Chaman Lal lives in dhobi quarter

no. 27 and a quarrel was going on between them and Chaman Lal and his

children from the last 4-5 years. On 10th July, 1987 at about 9:30 p.m.,

Chaman Lal and his children picked up a quarrel with them which was

pacified by the neighbours Anand Ballabh Pandey and Dharampal. Thereafter

they all went to sleep. He was sleeping outside his house and his parents were

sleeping inside. At about 2.00 a.m. in the night, Chaman Lal came holding a

danda in his hand and gave danda blow on his right leg and hand. On his

raising an alarm, his parents came out of the house. Chaman Lal hurled

abuses and stated that he would finish the quarrel by killing him and gave

danda blows on the head of his father. Anand Ballabh Pandey, their neighbor

tried to intervene and save his father, however, Chaman Lal kept on giving

danda blows to his father due to which his father fell down on the road.

Thereafter, Chaman Lal tried to escape and while he was running, he fell

down in front of his house due to which he sustained injuries. This incident

was witnessed by his mother, Anand Bhallabh Pandey, Dharampal and also by

other neighbours. Thereafter, Dharampal and Anand Bhallabh Pandey went to

inform the officers and Chaman Lal was apprehended at the spot and was

taken by Sergeant Dahiya. The doctor declared his father dead. He further

stated that Chaman Lal had killed his father to take revenge and had come

with complete preparation. On the statement of Mohan Singh, FIR No.

250/1987 under Section 302 IPC was registered at P.S. Nazafgarh and after

completion of investigation, charge-sheet was filed. The learned Trial Judge

framed charges under Section 302 IPC r/w Section 323 IPC against the

Appellant. After recording the prosecution evidence, statement of the accused

under Section 313 Cr. P.C. and the defence evidence, learned Additional

Session Judge, convicted the Appellant for offence punishable under Section

304 Part (II) IPC. Keeping in view the age of the Appellant and that he was

the only support to his family, the Appellant was awarded a sentence of

Rigorous Imprisonment for the period already undergone and to pay a fine of

`13,000/- and in default of payment of fine to undergo further rigorous

imprisonment for one year. In case the fine was realized, `10,000/- was

directed to be paid to the wife of the deceased as compensation. The judgment

of conviction and order on sentence are under challenge in the present appeal.

2. Learned counsel for the Appellant contends that the prosecution had

cited allegedly four eye witnesses of the incident PW2 Mohan Singh s/o the

deceased, PW10 Gobindi w/o the deceased, PW5 Dharampal and PW12

Anand Ballabh Pandey, both neighbours living in the vicinity. Though, PW5

appeared for examination-in-chief, but since he did not appear for cross-

examination his testimony could not be looked into and thus the prosecution is

left with the witnesses PW2, PW10 and PW12. It is urged that even as per the

testimony of PW2 in the Court, he could not have witnessed the incident when

danda blows were given on the head of his father as in his cross-examination

he has deposed that immediately after receiving injury, he ran away and had

gone to call Dharampal and Dharampal had reached the place of occurrence

prior to PW2. Moreover, as per PW10 Gobindi w/o deceased, Dharampal had

reached the spot after Kishan Singh had expired. Therefore, PW2 cannot be

an eyewitness of the incident. It is further urged by the learned counsel for the

Appellant that PW2 is not a reliable witness as according to Dr. Vijay Laxmi

who has been examined as PW6, the injuries suffered by PW2 were

superficial in nature and could be self-suffered. PW2 in his testimony has

stated that he suffered injuries caused by the danda blows given to him by the

Appellant on his left foot however as per the extracts of emergency register,

the injury recorded on his person was a blunt injury on the right knee,

contusion of 3 cm which could have been caused by friction against a hard

substance. Thus PW2's version of the cause of injury on his person is contrary

to the opinion of the medical expert who had examined him on the same day

itself.

3. It is pointed out by the learned counsel for the Appellant that the

statement of PW10 Gobindi gives a totally different version of the whole

incident and is full of material contradictions and improvements. Reference is

made to Yudhishtir vs. State of Madhya Pradesh, (1971) 3 SCC 436. As per

the testimony of PW12, Anand Ballabh Pandey, he had not witnessed the

alleged incident at 9:30 p.m. He deposed that he had only seen Sergeant

Dahiya and M.C. Das as a quarrel had taken place and he did not know

between whom the quarrel took place. With regard to the incident which took

place at around 2.00 a.m. in the night, the testimony of this witness is full of

material improvements and contradictions.

4. It is next contended that the prosecution case falls flat as the Appellant

had sustained injuries which according to PW7 Dr. Rajinder Rajan were

opined to be caused by danda blows. Also the eye-witnesses have not

explained the said injuries and they have all deposed that they had not seen

any injury on the person of the accused on the day of the incident. Reliance is

placed on Lakshmi Singh & Others vs. State of Bihar, AIR 1976 SC 2263 to

contend that it is the bounden duty of the prosecution to give a reasonable

explanation for the injuries sustained by the accused in the course of the

occurrence. The circumstance of deliberate suppression of the injuries on the

person of the accused is a very important circumstance to discredit the entire

prosecution case. It is well settled proposition that fouler the crime, higher the

proof and hence in a murder case where the accused is proved to have

sustained injuries in the course of the same occurrence, the non-explanation of

such injuries by the prosecution is a manifest defect in the prosecution's case

and shows that the origin and genesis of the occurrence had been deliberately

suppressed which leads to the irresistible conclusion that the prosecution has

not come out with a true version of the occurrence. It is further urged that the

story of PW2, that accused while trying to run from the spot was obstructed

by a stone lying on the road due to which he fell down and as a result of the

same he sustained the injuries on his head cannot be believed as no stone from

the spot has been taken into possession.

5. Learned counsel further contends that though the accused has been

allegedly apprehended at the spot, but the recovery of danda at his instance,

which was allegedly used by him to hit the deceased was recovered from his

residence and there was no occasion for the Appellant to have kept the danda

in his house if he was apprehended on the spot. Moreover, no opinion of the

doctor who conducted the post-mortem was sought in regard to the fact that

injury on the person of deceased was possible by the said danda. Hence this

recovery of danda cannot be co-related with the offence committed which has

also been held by the learned Trial Judge. Moreover, PW2 and PW12 in their

respective testimonies have not stated about the recovery of danda. Reliance is

placed on Ishwar Singh vs. State of U.P., AIR 1976 SC 2423 to contend that it

is the duty of the prosecution and no less of the Court to see that the alleged

weapon of offence if available, is shown to the medical witness and his

opinion invited as to whether all or any of the injuries on the victim could be

caused with that weapon. Failure to do so, may sometime cause aberration in

the course of justice.

6. The last contention of the learned counsel for the Appellant is that it is

unanimously admitted by the witnesses that dog squad was summoned at the

spot and the accused as well as witnesses, besides other people were made to

line up to identify the accused. The very fact that the dog squad was

summoned to identify the accused negates the claim of the prosecution that

the incident was witnessed by PW2, PW5, PW 10 and PW 12. Reference is

made to Sarwan Singh Rattan vs. State of Punjab, AIR 1957 SC 637 to

contend that once the investigation is found to be tainted, the whole of the

prosecution case becomes open to serious doubts and challenges. It is for the

prosecution to travel the inevitably long distance between "may be true" and

"must be true" and whole of this distance must be covered by legal, reliable

and unimpeachable evidence.

7. Learned APP for the State on the other hand, contends that there were

two incidents which took place on the fateful night, one at about 9:30 p.m. on

10th July, 1987 and the other at about 2:30 a.m. on the intervening night of

10th and 11th July, 1987. The incident at about 9:30 p.m. has been witnessed

by PW2, PW8 and PW10. There is no inconsistency in the testimony of PW2,

the son of the deceased and PW10, wife of the deceased. Moreover, PW2 was

examined on 8th March, 1989 i.e. more than one and half year after the

occurrence whereas PW10 Gobindi, wife of deceased was examined on 27th

October, 1998 after more than 11 years of the incident. Thus, there were

bound to be certain variations in the testimony of the witnesses. PW2 is an

injured witness, who was examined on the same day that is 11th July 1987 by

PW6 Dr. Vijay Laxmi who has opined PW2 to have received blunt injury i.e.

contusion of 3 cm on the right knee. In regard to the suggestion put to the

witness that the injury on the person of PW2 could be self-suffered and the

witness affirming the same to be possible, learned counsel contends that this

was a hypothetical answer in response to a hypothetical question. Relying on

D. Sailu vs. State of Andhra Pradesh, 2007(14) SCC 397, it is contended that

it would be erroneous to accord undue primacy to the hypothetical answers of

medical witnesses to exclude the eye witness's account which had to be used

independently and not treated as the variable keeping the medical evidence as

the constant. Where the eye witness's account is found to be credible and

trustworthy, the medical opinion pointing to alternative possibilities cannot be

accepted as conclusive. It is further contended that the version of PW2 &

PW10 that PW12 was present at the time of incident at 2.30 a.m. and had also

reached after the incident of 9:30 p.m., is corroborated by the fact that even

PW 8 Shri N.C. Das who is an independent officer, in his testimony has stated

that at about 9:30 p.m. PW12 Anand Ballabh Pandey informed him about the

incident and when he went, everything was pacified and normalized by that

time. He further stated about the incident at about 2:30 a.m. that both PW5

and PW12 informed him that Chaman Lal had murdered Kishan Singh. He

rushed to the spot with Sergeant Dahiya and found Kishan Singh dead. This

fact has been further verified by PW11 P. Padam Nabhan, Warrant Officer

who stated that on 1st July, 1987 at about 3:00 a.m. he had received the

information in the morning that a murder had taken place. It is stated that

Shivji Roy PW9 had gone to lodge the complaint to the police station

Najafgarh at 6:30 a.m. which information was recorded in DD No. 9A

Ex.PW-1/A where it has been stated that Chaman Lal had murdered Kishan

Singh and has been detained in the guardroom. Thus the inference being

drawn that the accused was not arrested at the spot and was only apprehended

after the dog squad came, does not warrant merit as it is clear from the

testimony of PW9 Shivji Roy that the Appellant was detained in the

guardroom. The Investigating Officer PW19 S.I. Hari Ram has explained that

the dog squad was sent by the SHO and ACP as they did not know that the

accused had already been arrested.

8. As regards non-explanation of the injuries on the accused reliance is

placed on State of Gujarat vs. Bai Fatima & Anr. 1975 (2) SCC 7; Lakshmi

Singh & Others vs. State of Bihar, AIR 1976 SC 2263; Hari vs. State of

Maharashtra, J.T. 2009 (4) S.C. 234; Amar Malla & Ors vs. State of Tripura,

2002 (7) SCC 91 and Sikandar Singh & Ors. vs. State of Bihar J.T. 2010 (7)

SC 637, that when the prosecution case is proved by the eye-witnesses, then

merely because the prosecution has failed to explain the injuries on the

Appellant, does not ipso facto throw away the prosecution case. It is next

contended that there are no improvements or contradictions in the testimony

of the witnesses and witnesses have been examined after more than 11 years

of the incident hence minor variations are bound to occur in their testimony.

The incident is of 2:00/2:30 a.m., in the intervening night of 10th and 11th July

and PW2 the son of the deceased and PW10 wife of the deceased are natural

witnesses as their presence at that time of the night is obvious and natural.

Replying to the contention that since the Appellant was apprehended on the

spot, there was no time for him to have concealed the danda at his residence,

learned APP states that this contention of the defence is ill founded as the

Appellant and the deceased were next door neighbours and immediately after

the incident since he had run away, therefore, there was sufficient time with

him to have concealed the danda at his house. It is further contended that the

defence has taken inconsistent and false pleas and in view of the decision

rendered in Shankarlal Gyarasilal Dixit v. State of Maharashtra, 1981(2) SCC

35, though a false plea may not prove the guilt of the accused but the same is

an additional circumstance, if other circumstances point unfailingly to the

guilt of the Appellant. It is stated that according to the statement of the

Appellant under Section 313 Cr.P.C. in reply to question no. 31, he admits

that a quarrel took place between him and Kishan Singh deceased at 9:45 p.m.

on the 10th July, 1987 after which he was detained in the guardroom and he

explains his injuries also. DW1 Surya Narain Mishra also admits the incident

at 9:30-9:45 p.m. but according to him Kishan had received injures and was

lying on the ground. In his further statement, he does not admit having

witnessed the incident at 2:00 a.m. as he slept till 5:00 a.m. next day. This

testimony of DW1 and the statement of the Appellant under Section 313

Cr.P.C. is not only contrary to the testimony of eyewitnesses but also the

independent official witness PW8 Sh. N.C. Das who has deposed that he was

informed about the incident at 9:30 p.m. and when he reached at the place of

the incident, everything had settled and normalized. It is thus prayed that

there is no merit in the appeal and the same be dismissed.

9. I have heard the learned counsel for the parties and perused the records.

PW2 Mohan Singh, the Complainant, the son of the deceased is a natural and

an injured eye witness in this case. PW2 also proves the fact of frequent

quarrels between the families of the deceased and the Appellant over trivial

issues. According to him on 10th July, 1987, at about 9:30 p.m., there was a

quarrel between his father and Chaman Lal who was under the influence of

liquor and at about 9:45 p.m. their neighbours Dharampal and Anand Ballabh

Pandey reached and got the matter settled. This version of PW2 stands

corroborated by his mother PW10 Gobindi, PW12 Anand Ballabh Pandey and

also by PW8, Sh. N.C. Dass, Master Warrant Officer who deposed that there

was a quarrel between Chaman Lal and one Kishan Singh which was

informed to him by Dharampal and Anand Ballabh Pandey at about 9:30 p.m.

and he along with Sergeant Dahiya went there at about 10.00 p.m. and found

everything normal. This witness has not been cross-examined on this aspect

and this part of his testimony has gone unchallenged. PW 10 states that after

the incident, they made their son Mohan Singh sleep outside and she and her

husband went inside to sleep. PW2 Mohan Singh has stated that when he was

sleeping outside the house at about 2:00 a.m., the Appellant attacked him with

the danda on the left foot. Thereafter, Chaman Lal gave a danda blow on the

door whereupon his father came out and the accused attacked his father with

the danda. Learned counsel for the Appellant has sought to impeach the

testimony of this witness on the ground that immediately on receiving the

danda blow, he ran away to call Dharampal and as per the testimony of the

witnesses he came only after Dharampal had come and when Dharampal came

his father had already died. This contention looses ground in view of the

testimony of PW2 wherein he has stated that after the Appellant hit him and

gave danda blow on the door, his father came out and the Appellant attacked

his father as a result of which he fell down. This testimony of PW2 is duly

corroborated by PW10 who states that at about 3.00 a.m., the Appellant gave

danda blow to her son who was sleeping outside, who raised an alarm she and

her husband got up, and when she opened the door the Appellant followed her

son in the house and was holding a danda. She further stated that her husband

asked him to go out and not to quarrel with the children, on which he dragged

her husband out of the house on the road and gave danda blows on his head.

Both these witnesses have clearly stated that Anand Ballabh Pandey who is

living in the neighbourhood had come at the spot and tried to intervene. Only

Dharampal came after her husband had died. She further stated that thereafter

Anand Ballabh Pandey along with her daughter went to the guardroom to

inform the officers and then accused Chaman Lal was apprehended. PW12

has stated that at about 2:00/2:30 a.m. he was sleeping in his courtyard he

heard noises which appeared to be that of Appellant Chaman Lal quarrelling

with his wife and then Chaman Lal came out of the house. He was holding a

danda in his hand and was under the influence of liquor. Despite his wife

requesting him to stop, he went to the house of Kishan Singh where Mohan

Singh was sleeping outside the house. When the Appellant struck Mohan

Singh he reached there. Mohan Singh got up, raised the alarm and went

towards the door of his house. The door was opened and Kishan Singh came

out. Appellant rushed towards Kishan Singh and gave danda blow on his

head. Kishan Singh went towards the road and tried to lift a stone to hit back

but before he could get up, accused gave another Danda blow to Kishan Singh

on his head and he fell down. The fact that PW2 had gone to call Dharampal

and Dharampal reached only after his father was dead does not warrant that

PW2 did not witness the incident. He is an injured natural witness and his

testimony is duly corroborated by that of PW10 and PW12 and thus, cannot

be discarded.

10. It is for the prosecution to prove its case beyond reasonable doubt,

which the prosecution has done by the testimony of PW2, PW10 and PW12.

However it is settled law that if the defence takes false pleas then the same

can be used as an additional link in the chain of circumstances if the other

circumstances prove the guilt of the accused. According to the Appellant, he

received injuries in the incident dated 10th July, 1987 at 9:45 p.m. when

Kishan Singh hit him with a danda on his head and fingers. Kishan Singh and

Dharam Pal ran away from the spot. Somebody informed Sergeant Dahiya

who then took him to the guardroom and gave him first aid and confined him

in the guardroom till 9:30 a.m. of the next morning. Later he was handed over

to the police and nothing was recovered from him and the said danda was

planted on him. Thus, the Appellant stated that he received injuries in the

incident at 9:30 p.m. and was detained in the guardroom thereafter till the next

day morning and thus was not connected with the incident at 2.30 a.m. This

defence is totally contrary to the version of the independent witness PW8 N.C.

Das, Warrant Officer who stated that when on being informed about Chaman

Lal murdering Kishan Singh, he along with Shri Dahiya rushed to the spot and

found Kishan Singh dead and when he went to Chaman Lal, who confessed

having murdered Kishan Singh because he could not control his anger which

was unbearable. He then sent Chaman Lal through Sh. Dahiya to the main

guard room to be handed over to the police on duty.

11. I also did not find any merit in the contention of the learned counsel for

the Appellant that as the injuries on the Appellant have not been explained,

the case of the prosecution falls foul and the Appellant is entitled to the

benefit of doubt. As per DW1 Surya Narain Mishra on the date of incident,

after returning from the Rum-Punch Party, he went to his quarter and at about

9:30-9:45 p.m. on hearing some noise he reached near the quarter of deceased

Kishan where he saw the Appellant Chaman Lal had sustained injuries on his

forehead, right elbow and fingers also. Injuries on the person of the deceased

Kishan were also seen who was lying on the ground. He questioned the

accused Chaman Lal as to how he got injured to which he answered that a

quarrel was going on between Dharampal and the deceased and he intervened

and separated them. Thereafter, he was beaten by Kishan. This witness has

also deposed that accused Chaman informed him that deceased Kishan was

beaten up either by Dharampal or Pandey with Dandas. Thereafter, Sergeant

Dahiya reached at the spot and took the Appellant to the guardroom where he

was given first aid and he also followed them to the guardroom. In his cross-

examination, this witness has deposed that on the date of incident he went to

sleep at 10:00 p.m. and woke up only at 5:00 a.m. the next day and thus had

not seen what had happened after he was asleep. Thus as per the defence

version itself the injuries to the Appellant were inflicted in the incident at 9:30

p.m. and not at 2:30 a.m. The version of prosecution is that no injury was

caused to the Appellant except PW2 who has stated that the Appellant

received injures when he was escaping from the spot, he trumped on the stone

at the time of the incident

12. In Lakshmi Singh (supra) relied upon by the learned counsel for the

Appellant, the Hon'ble Supreme Court while considering State of Gujarat vs.

Bai Fatima (supra) held that:

"11.It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version:

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosedition one."

In view of the law laid down, it is thus to be seen that whether the

version of the defence which explains the injuries on the person of the accused

renders probable so as to throw out the prosecution. In the present case, as per

the defence of the Appellant, he received injuries at the incident about 9:30

p.m. It is not the defence of the Appellant that he received injuries at the

incident which happened at 2:30 a.m. in the night. According to him and

DW1, he was not on the spot and was detained in the guardroom after the 9:30

p.m. incident. Thus, the defence version does not throw doubt on the veracity

of the prosecution version with regard to the incident at 2:30 a.m. which

resulted in the death of the deceased. Thus, the prosecution version that no

injuries were seen or inflicted on him at about 2:30 a.m. is not shrouded with

the clouds of mystery. Though the prosecution witnesses have not stated

about the injuries received by the Appellant in the incident at 9:30 p.m., but in

view of the law laid down by the Hon'ble Supreme Court it would be

improper to discard the entire prosecution case on this ground. It is the duty

of the Court to separate the grain from the chaff and find out the truth as held

by the Hon'ble Supreme Court in State represented by Inspector of Police vs.

Sarvanam & Another, AIR 2009 SC 152.

13. There is yet another aspect, that is the alleged incident is of 11th July,

1987, whereas PW2 was examined on 8th March, 1989 and the wife of the

deceased PW10 was examined in the Court on 28th October, 1998 that is after

more than one and a half years and 11 years respectively after the incident and

thus there are bound to be minor abrasions in their testimonies. As regards

opinion of PW6 Dr. Vijay Laxmi that the injury of PW2 may be self suffered,

I find force in the contention of the learned APP that the reply of the witness

that the injury on the person of PW2 could be self suffered injury is a

hypothetical answer to the hypothetical question. In D. Sailu (supra), the

Hon'ble Supreme Court has categorically held that it is erroneous to accord

undue primacy to the hypothetical answers of medical witnesses. The

Hon'ble Supreme Court held where eye-witnesses can be believed, then the

medical opinion pointing to alternative possibilities cannot be accepted as

conclusive.

14. I also do not find any merit in the contention of learned counsel for the

Appellant that PW2, PW10 and PW12 were introduced as eye-witnesses

subsequently as it is the admitted case of all the witnesses that at about

10.a.m., the dog squad was called which searched for the accused and if the

Appellant was already in their custody then there was no need to call the dog

squad and it was only on the dog squad smelling the Appellant that he was

implicated in this case. This contention of the learned counsel for the

Appellant is to be rejected as in the information received at the police station

at 6:30 a.m. on 11th July, 1987 vide D.D. 9/A at P.S. Nazafgarh Ex. PW1/A

itself it is recorded that Kishan Singh has been killed by Chaman Lal in a

quarrel and Chaman Lal has been detained by Sergeant Dahiya in the

guardroom. The witness PW9 who reported the matter stating these facts has

not been cross-examined and thus his testimony has gone unchallenged. Also,

PW2 in his statement Ex. PW 2/A on which the FIR was registered, has also

named the Appellant, who killed his father. Moreover, PW 19 S.I. Hari Ram,

Investigating Officer has given an explanation that the dog squad was

summoned by him as per the instruction of SHO and ACP and he had not told

the SHO & ACP that the accused was already identified so there was no need

to call the dog squad. He gave his further statement that he could not argue

with the seniors. This statement on the part of PW19 gives the explanation for

the dog squad being pressed into service.

15. The contention of learned counsel for the Appellant that if the

Appellant was apprehended on the spot, then there was no way that he could

have concealed the danda in his house and thus, the recovery of the danda

from the house of the Appellant is planted upon him also deserves to be

rejected. PW10, wife of the deceased has stated that after injuring her husband

the Appellant escaped from the spot. The Appellant and the deceased were

neighbours, thus, it would have taken no time for the Appellant to conceal the

danda in his house behind the door. As per the CFSL report Ex. PWA and

PW B, it was opined that the blood on the danda matched with the blood of

the deceased. Thus, this opinion admissible under Section 293 CrPC clearly

connects the danda recovered from the house of the Appellant to the injuries

caused. Moreover, the contention of the learned counsel relying on Ishwar

Singh v. State of U.P., AIR 1976 SC 2423 that since the danda has not been

shown to the doctor and his opinion is not sought as to whether the injury was

possible by the danda, the recovery of the danda is not connected with the

crime and hence this recovery is to be ignored is erroneous. In Ishwar Singh

(Supra), their Lordships were dealing with a case of multiple injuries with

multiple weapons. In the said case the testimony of the post mortem doctor

was that the punctured wound was caused by "some sharp edged pointed

weapon". He further stated that the wound "might have been caused with a

ballam". Their Lordships held that implicit reliance cannot be placed on the

testimony of the witnesses as to who stuck the deceased with the ballam and

were thus looking for independent corroboration. It was also observed that

ballam and bhala are similar types of weapon and had the doctor seen the

weapons seized from the houses of the Appellants therein it might have been

possible for him to say which of them caused the injury. In Criminal Appeal

No. 151/2001 in Nanko Devi vs. State this court, held that in case eye-witness

identifies the recovered weapon to be the one by which the injury was caused,

then there is no need for a separate opinion to be sought from the doctor to

connect the weapon of offence with the injury caused. This is an essential

factor in a case of circumstantial evidence. In the present case, the eye-

witness PW12 has identified that the Appellant had caused the injury by the

danda Ex.PW-1 which was like an arm of the cot and also the CFSL report

proves that the blood on the danda matched with the blood of the deceased.

Thus there is sufficient evidence to connect the danda recovered at the

instance of the Appellant from his house with the injury caused on the person

of deceased.

16. From the evidence on record and the testimony of the eye witnesses

including the injured eye witness, in my opinion, the prosecution has proved

its case beyond reasonable doubt against the Appellant for commission of

offence punishable under Section 304 Part (II) IPC. I find no reason to

interfere with the impugned judgment. The appeal is accordingly dismissed.

Since the Appellant has been awarded a sentence of imprisonment for the

period already undergone and to pay a fine of `13,000/- out of which if

realized, `10,000/- is to be awarded to the wife of the deceased, the learned

Trial Court would ensure that the amount so recovered is paid to her and in

case of default of payment of fine the Appellant undergoes Rigorous

Imprisonment for one year as awarded by it.

(MUKTA GUPTA) JUDGE FEBRUARY 21, 2010 dk