Ramesh Kumar vs State
2011 Latest Caselaw 1189 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                 Crl. A. Nos. 737/2000 & 9/2001

%                                          Reserved on: 13th December, 2010
                                           Decided on : 28th February, 2011
Crl. A. 9/2001

ASHOK KUMAR                                                     ..... Appellant
                                Through:        Mr. N.S. Dalal, Advocate
                          Versus
STATE                                                      ..... Respondents
                                Through:        Mr. Pawan K. Bahl, APP

Crl. A. 737/2000

RAMESH KUMAR                                                    ..... Appellant
                                   Through:     Mr. N.S. Dalal, Advocate
                          versus
STATE                                                          ..... Respondent
                                   Through:     Mr. Pawan K. Bahl, 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. By the present Appeals a challenge is laid to the judgment of conviction

passed by the Addl. Sessions Judge convicting the Appellants for offences

punishable under Sections 304/34 IPC and sentence of Rigorous

Imprisonment for a period of five years.

2. The case of the prosecution in nutshell is that on 16th August, 1990 two

persons namely Ramesh and Ashok who were drivers of two different trucks

bearing no. DIG 6572 and HR-13-0376 respectively, reached near check-post

at Badarpur and parked their respective trucks near the check post. At about 8

a.m. they ordered tea to one Malkhan Singh who used to run a kiosk near the

check post. Malkhan Singh prepared the tea and supplied to them. However,

both of them did not like the tea and subsequently there was exchange of

heated arguments between the Appellants and Malkhan Singh. On this,

Ramesh caught hold of both his hands and Ashok pressed his throat with his

hands and he died on the spot. Malkhan Singh was taken to Holy Family

Hospital, where he was declared brought dead. Both the accused persons

were apprehended on the spot by Constable Jasbir Singh PW2 and other

persons. On the statement of one Kaptan Singh Ex.PW16/1, FIR No. 240/90

Ex.PW13/1 under Section 304/34 IPC was registered at P.S. Badarpur. On

completion of investigation, charge-sheet was filed. After recording of

prosecution evidence and statement of the Appellants under Section 313 Cr.

P.C., both the accused were convicted as above.

3. Learned counsel for the Appellants contends that out of 16 prosecution

witnesses examined PW1 Asha Devi, PW2 Constable Jasbir Singh, PW3

Kalyan Singh and PW10 Mahesh claim to be eye-witnesses of the incident.

Out of the four alleged eye-witnesses, the presence of PW1 Asha Devi and

PW10 Mahesh who claim to be present on the spot at the time occurrence, has

been held to be doubtful by the Ld. Trial Court and their testimonies have

been excluded as there are material contradictions and inconsistencies in the

same. Presence of PW1 Asha Devi is doubtful as PW2 Const. Jasbir Singh

has deposed that when he along with Kaptan Singh reached at the spot where

Malkhan Singh was lying unconscious, Asha Devi came later on i.e. after

about 5-10 minutes and public persons separated Malkhan Singh from

accused persons. However, PW1 Asha Devi deposed that no one else was

present at the time of occurrence except PW2 Constable Jasbir and PW10

Mahesh. As per the testimony of PW3 Kalyan Singh who was working in the

Melrose Bread Company (factory) near the tea stall of Malkhan Singh, when

he reached at the spot PW1 Asha Devi was present there. PW1 Asha Devi in

her testimony had stated that when Malkhan Singh was in the clutches of

accused persons, she got Malkhan Singh released from them and she took him

to the Holy Family Hospital. Learned counsel contends that it seems highly

improbable that PW1 took the truck to the hospital. On being recalled for

cross-examination PW1 Asha Devi contradicted her own statement by

deposing that she along with PW10 Mahesh took the deceased to the hospital

and that it was incorrect to suggest that accused Ashok had throttled the

deceased. On the contrary, PW10 Mahesh, brother of the deceased in his

statement states that many persons got Malkhan Singh released and he along

with PW3 Kaptan Singh and PW1 Asha Devi took Malkhan Singh to the Holy

Family Hospital. PW10 Mahesh, brother of deceased in his cross-examination

has deposed that when he reached at the place of occurrence Asha Devi was

not present there and he called Asha Devi from her hotel. Mahesh PW10,

who is the brother of the deceased in his statement, has nowhere stated that he

got Malkhan Singh released from the clutches of the accused and this conduct

of PW10 is highly unnatural being brother of the deceased, and thus it shows

that he was not present at the time of incident. Further Kaptan Singh, uncle of

the deceased, on whose statement FIR was registered, died during the course

of trial, hence his statement could not be recorded. Thus, the prosecution has

failed to prove the fact as to who got released Malkhan Singh from the

clutches of accused persons and thus presence of the PW1 and PW10 is highly

doubtful as there are material improvements and inconsistencies in their

statements.

4. The next contention of the learned counsel for the Appellant is that as

per the statements of the alleged eyewitnesses, a crowd of about 50-60

persons gathered at the spot when the quarrel took place, however, no one

from the crowd has been examined as witness. As per the testimonies of PW1

Asha Devi, PW2 Constable Jasbir Singh, PW3 Shri Kalyan Singh, PW10

Mahesh, accused Ramesh caught hold of both the hands of the deceased and

accused Ashok pressed his throat. Thus he died due to strangulation.

However, as per the post-mortem report Ex.PW8/A, PW8 Dr. G.K. Chaubey

who conducted the post mortem of the deceased opined that there was no

external or internal injuries found on the person of the deceased and the cause

of death was opined to be "vaso-vagal shock". PW8 in his cross-examination

has deposed that vaso-vagal shock can result because of extremes of emotion,

fear and due to pressure over sensitive areas. He has further deposed that

vaso-vagal shock is due to stimulation of vagal nerves which causes cardiac

arrest. Thus, in view of the post-mortem report, the case of the prosecution is

without any merit as there is inconsistency between the medical evidence and

the alleged eye witness account. The learned Trial Court has failed to

appreciate that there was no external or internal injury on the person of the

deceased proving that the accused persons had not throttled the neck of the

deceased. No marks of manual strangulation were noticed on the neck of the

deceased by the doctor while conducting the post mortem.

5. Learned counsel further contended that as per the testimony of PW1

Asha Devi and PW3 Kalyan Singh, employed at Melrose Bread Company

there were three drivers for whom the deceased had prepared and supplied tea.

However, identity of third person is not known and no investigation has been

conducted by the police in this regard. Even as per the version of PW4 Raj

Pal, the owner of the truck bearing number DIG 6572, on the day of incident

there were two drivers on the said truck i.e. one being the accused Ramesh

and other was Ajit Kumar. But the prosecution has not recorded any

statement of the said Ajit Kumar which was essential for a fair investigation

as it could have thrown light on the facts of the case. For the non-examination

of such a material witness, an adverse inference should be drawn against the

prosecution.

6. Learned counsel for the Appellants states that immediately after the

incident crime team was summoned at the spot for lifting chance prints.

However, as per the report Ex.PW6/A no chance prints were found or

developed at the spot. It is urged that as per testimony of PW16 Inspector O.P.

Swami, the Investigation Officer on the date of incident the then SHO, PS

Badarpur, at about 9.00 a.m. on receipt of the information about the incident

vide DD No. 4A when he was leaving for the place of incident with his team,

PW2, PW3, along with ASI Jagdish Chander and Kaptan Singh brought both

the accused persons to the police station. Thereafter, he recorded the statement

of Kaptan Singh and along with accused persons went to the spot, and seized

both the trucks present at the spot at 10:45 a.m. However, as per testimony of

other PWs both the trucks were seized at 8:00 a.m. Hence, the version of PW

16 cannot be relied upon. It is also contended that it is not natural and cannot

be accepted that out a crowd of 50-60 persons, nobody rescued or reacted

when the deceased Malkhan Singh was being throttled by the accused

persons. Thus the prosecution has failed to prove its case beyond reasonable

doubt and hence the Appellants be acquitted.

7. Learned APP on the other hand contends that, late Kaptan Singh was

the Complainant on whose statement FIR at the Police Station Badarpur vide

Ex.PW16/1 was recorded. He was the eyewitness of this case and his presence

at the place of occurrence has not been denied by any of the prosecution

witnesses. Though, there are minor contradictions in the testimony of PW1,

PW2, PW3 and PW10 however, their evidence cannot be discarded on the

basis of such minor contradictions. As per the statement of PW3 Kalyan Singh

an eyewitness and employed at Melrose Bread Company, on hearing about a

quarrel, when he reached at the spot he saw accused Ramesh holding hands of

Malkhan Singh and accused Ashok was pressing his throat. In the cross-

examination by counsel for Appellants no suggestion was given to this

witness that the Appellants were not present at the spot. The presence of this

witness at the spot and witnessing the incident cannot be doubted and the

same is reliable.

8. Learned APP next contended that as per the post-mortem report

prepared by PW8 Dr. G.K. Chaubey, the deceased died due to vaso-vagal

shock. PW8 in his cross-examination has further stated that vaso-vagal shock

can be a result of extremes of emotion, fear and due to a pressure over

sensitive areas. Throat is very sensitive part of the body and the deceased was

strangulated by pressing the throat by the Appellants. Thus, the contention of

the learned counsel for the Appellants that there were no external or internal

injury on the person of the deceased has no merit and is liable to be ignored.

The Appellants have not disputed their presence at the spot and no suggestion

has been given to PW10 Mahesh who has also deposed about the role of the

each of the two accused. A scuffle took place at the tea stall is not disputed.

PW2, PW3 and PW10 are natural witnesses who have proved the sequence of

events. Minor variations or discrepancies in their statements will not be fatal

to the prosecution case. The prosecution has thus proved its case beyond

reasonable doubt against the Appellants.

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

far as the statement of PW1 Smt. Asha Devi is concerned, I am of the opinion

that her statement is not trustworthy. All that has been deposed by her in her

examination-in-chief, is an improvement and she has been duly confronted

with her earlier statement recorded under Section 161 Cr. P.C. Ex. PW1/DA.

The improvement is to the extent that as per the statement to the police, she is

not an eye-witness and had reached the spot only after the deceased Malkhan

Singh lay unconscious. Thus, the alleged offence had already been committed

by the Appellants when PW1 reached at the scene of occurrence. However,

the testimony of PW10 Mahesh, the brother of the deceased, PW2 Constable

Jasbir Singh, an independent witness, who was posted at the check post,

Badarpur at the relevant time and PW3 Kalyan Singh employed at Melrose

Bread Company factory near the tea stall of Malkhan Singh clearly proves the

case of the prosecution. As per PW10, deceased Malkhan Singh had taken the

tea for accused Ashok and Ramesh both the Appellants who were standing

near their respective trucks. After consuming the tea, when the deceased

demanded money from them they said "Teri Chai Me Na Patti Hai Na Mitha

Hai Tujhe Maja Chakhate Hai: Paise Nahin Denge". In the meantime,

accused Ramesh caught hold of the hands of his brother and accused Ashok

strangulated his throat. On Malkhan Singh making a noise, several persons

collected there which included PW2 Constable Jasbir Singh, PW3 Kalyan

Singh etc. Since, PW10 was at the spot, PW2 and PW3 were present at a

distance, he has given the details which naturally could not have been given

by PW2 and PW3 who watched the incident from a distance and rushed to the

spot.

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

Appellants that though the crowd of 50-60 persons had collected, however,

none of them was cited as a witness. The prosecution has cited two natural

and public witnesses who have witnessed the occurrence i.e. PW2 and PW3.

It is common knowledge that people gather to watch a scuffle or fight but

most of those who witness the incident in the crowd immediately leave the

place after the incident or they may have actually not witnessed the incident

and would have come after the incident, thus cannot depose about the

incident. Thus, the prosecution rightly did not examine or cite them as eye-

witnesses. As per the testimony of PW8 Dr. G.K. Chaubey who conducted the

post-mortem it is opined that the cause of death was "Vaso-Vagal Shock" and

vaso-vagal shock can result because of extremes of emotion, fear and due to a

pressure over sensitive areas. It is further deposed that vaso-vagal shock is due

to stimulation of vagal nerves which causes cardiac arrest. In the present case,

the throat is an area which encompasses the air passage and any constriction

thereon can result in a fatal injury. Medical jurisprudence guides us that vagal

nerves are present and pass through the neck and in the present case the neck

of the deceased was pressed, which resulted in the pressing of vagal nerves

and proved to be the cause of death of the deceased Malkhan Singh. In The

Essentials of Forensic Medicine and Toxicology by Dr. K.S. Narayan Reddy

and Medy's Medical Jurisprudence and Toxicology it is noted that "a blow on

the front of the neck may cause unconsciousness or even death due to vagal

inhibition." Thus the stimulation of the vagal nerve is directly relatable to the

act of the Appellants in pressing the neck in furtherance of their common

intention. In Taylor's Principles and Practice of Medical Jurisprudence, it is

noted:

"The larynx is a cartilaginous structure which becomes provessively calcified with age. It is generously supplied with sensitive nerve endings, and excessive stimulation of some of the vagal nerve endings may result in sudden cardiac arrest from „vagal inhibition‟.

Blow to the front of the neck may cause instant death when directed against the larynx. Special units during hostilities are trained to strike enemy personnel across the larynx with the side of their hand, causing instant and silent death."

Thus, the testimony of eyewitnesses who have deposed about the said

act of manual strangulation stands corroborated by the evidence of the doctor

who conducted the post-mortem.

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

the Appellant that the third person for whom the third cup of tea was taken has

not been examined and thus in the absence of examination of that unknown

person, the prosecution case becomes doubtful. Taking of three cups of tea

would normally be meant for three person but the witnesses, that is, PW3 and

PW10 have stated that three cups were taken for the drivers. PW3 in his

examination-in-chief has deposed that when he came to the stall and told

Malkhan to prepare tea for him, he told him that he was going to deliver three

glasses of tea to the drivers. PW10 also deposed on similar lines that on the

date of incident Malkhan Singh had taken three glasses of tea for accused

Ramesh Kumar and Ashok Kumar. Nothing has been stated by the witnesses

about the presence of any other person with the two accused person at the

spot. Thus the contention of learned counsel that there were three cups

recovered from the spot which shows the presence of some other person at the

sport is liable to be dismissed. Assuming, in view of the statement of PW4

Rajpal that he had employed two drivers on his truck on the date of incident

and the other driver i.e. Ajit Singh has not been examined, the same would not

be fatal to the prosecution case. From the testimony of the witnesses and the

complaint Ex.PW16/1 it is clear that there was no other person present with

accused persons and if there was something contrary the Appellants could

have proved by bringing the said witness in defence. As stated above, the

prosecution has already examined two independent witnesses besides the

brother of the deceased who have given the entire sequence of the incident

and which clearly proves the case of the prosecution. In this case the

complainant Kaptan Singh uncle of the deceased had expired before he could

be examined in the Court.

12. The contention of the learned counsel for the Appellant that the time of

seizure of the two trucks casts a doubt on the prosecution version does not

demerit the prosecution case as the witnesses have consistently deposed about

the presence of the two trucks and Appellants have also not disputed the

seizure of the trucks on that date. In their statements under Section 313 CrPC

they have admitted the seizure of the trucks but have stated that the trucks

were falsely taken into possession. Moreover, PW2, Constable Jasbir Singh

has deposed that both the trucks were seized vide seizure memo Ex.PW2/B

and Ex.PW2/C. PW16 Inspector O.P. Swami, SHO PS Badarpur who had

seized the two trucks has also deposed only about the factum of seizure of

trucks and they being parked near the place of occurrence. Nothing on the

timing of the seizure has been deposed or put as a suggestion to the witnesses.

13. I also do not find any merit in the contention of the learned counsel that

there is contradiction as to who took the deceased to the hospital and thus the

prosecution case should be discarded on that count. Though the testimony of

PW1 Asha Devi is not believable on the factum of her being an eye-witness to

the incident but in her testimony before the Court she had deposed that she

and Mahesh PW10 had removed deceased Malkhan Singh to Holy Family

Hospital in Truck No. DBL 6638, where the Doctor who examined Malkhan

Singh declared him brought dead. PW10 Mahesh, the brother of deceased has

also deposed that he along with Kaptan Singh and PW1 Asha Devi removed

the deceased Malkhan Singh to Holy Family Hospital, PW2 Constable Jasbir

Singh had deposed that he does not recollect as to who took deceased to

hospital. This deposition of PW2 has been pointed out as a material

discrepancy by the learned counsel for the Appellant. Such minor

discrepancies and variations in the testimony of the witnesses which do not go

to the root of the matter, the entire prosecution case which is otherwise

trustworthy cannot be discredited.

14. Ordinarily it so happens that a witness is overtaken by the events. The

witness could not have anticipated the occurrence of the event which most

often has an element of surprise. The mental faculties therefore cannot be

expected to be attuned to absorb all the details. The power of observation

differs from person to person. What one may notice, another may not. An

object or movement might emboss its image on one person‟s mind whereas it

might go unnoticed by another. By and large people cannot accurately recall

a conversation and reproduce the exact and the same specific words used by

them or heard by them. They can only recall the main purport of the

conversation. It is unrealistic to expect a witness to be a human tape recorder.

15. From the acts of the Appellants i.e. Ramesh Kumar holding the hands

of the deceased thus making him defenceless and Ashok Kumar throttling the

neck, the intention to commit the injury that is likely to cause death is clearly

attributable.

16. For the reasons aforesaid, I find no merit in the present appeals and the

same are accordingly dismissed. The Appellants are on bail. Their bail bonds

and surety bonds are cancelled. The Appellants be taken into custody to

undergo the remaining sentence.

(MUKTA GUPTA) JUDGE FEBRUARY 28, 2011 dk