Gulzari Lal vs State
2011 Latest Caselaw 677 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+               Crl. Appeal 504/1999

                                          Reserved on: 8th November, 2010
                                          Decided on: 4th February, 2011
GULZARI LAL                                              ..... Petitioner
                            Through:    Mr.G.B. Sewak, Amicus Curiae

                   versus

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

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 this appeal a challenge is laid to the judgment convicting the

Appellant for offence punishable under Section 307 IPC and an order of

sentence directing him to undergo Rigorous Imprisonment for four years and

to pay a fine of `3,000/- and in default of payment of fine, to further undergo

simple imprisonment for six months. On realization of the fine amount,

`2,500/- was to be paid to the injured as compensation.

Crl. A. 504/1999

2. The prosecution case in brief is that on 2nd December, 1994 at 8:50 p.m.

an information was received at Police Post Mianwali, Police Station Paschim

Vihar vide D.D. No. 28, Ex.PW8/A that a fight has taken place at C-Block,

Camp-4, Jawalapuri. PW8 HC Satish Chander along with PW9 Constable

Ramesh Kumar reached the spot where accused Gulzari Lal had already been

apprehended by PW7 HC Ravi Dutt and PW4 Constable Rajneesh who were

on patrolling duty. Thereafter PW11, ASI Mahinder Singh also reached the

spot. PW7 handed over one „Churi‟ to ASI Mahinder Singh and informed that

the Appellant has injured one Vijay with this Churi who has been removed to

DDU Hospital through PW9 who was accompanied by PW3 Preetam Singh,

the brother of the injured. On reaching the hospital, the doctor declared the

injured Vijay Singh fit for statement and at 10:15 p.m., PW11 recorded the

statement of Vijay Singh Ex. PW2/A wherein he stated that he was working

on contract basis in the factory of Horilal at R 241, Camp No. 5, Jawalapuri.

The Appellant herein was also working as a labourer in the factory. However,

his services were terminated as he was not working satisfactorily. He was re-

employed after some time but again because of his non-performance, his

services were terminated on 1st December, 1994. On that day i.e. 2nd

December, 1994, he along with his brother Preetam Singh who was also

working in the same factory were returning to their house and at about 8:40

Crl. A. 504/1999

p.m. when they reached C-Block turning, they found the accused already

present there. While the injured and his brother were passing through him, he

came in front of them. The Appellant was armed with a Churi in his right

hand and retorted the injured that he was removing him from service time and

again and was not allowing him to work, so he would finish him. The

Appellant attacked him with the Churi on his neck, backside of neck and his

back. His brother intervened and tried to save him, in the meantime, two

police officials reached the spot who overpowered the Appellant and

apprehended him. They took the Churi in their possession. On this statement

of the injured, ASI Mahinder Singh made an endorsement Exhibit PW11/A

and case FIR No. 881/1994, Exhibit PW1/B under Section 307 IPC was

registered at P.S. Pachim Vihar. After the completion of investigation,

charge-sheet was filed. The learned Trial Court after recording of the

prosecution evidence, statement of the Appellant under Section 313 Cr.P.C.

and the defence evidence, convicted and sentenced the Appellant as

mentioned above.

3. Learned counsel for the Appellant challenging the impugned judgment

contends that PW2, the injured himself has made material improvements in

his statement before the Court as regards the place of incident and the fact that

they were returning to their home on a bicycle. No bicycle has been seized by

Crl. A. 504/1999

the police from the spot nor has any statement been made by the injured PW2

or PW3 Preetam his brother in this regard to the police. Though, the place of

incident was a locality where a number of public persons were present

however, no independent public witness has either been cited or examined as

a witness to the incident. The conduct of PW 3 Preetam Singh, the brother of

the injured is unnatural as after his brother Vijay Singh was injured he first

left the bicycle at the factory of Hori Lal and then reached the hospital. He is

not an eye-witness of the incident and has been planted as an eye witness.

There are contradictions in the deposition of the witnesses and the site plan

Ex. PW11/B. Though witnesses have stated that it was a residential area and

street light was there, however the same has not been shown in the site plan.

The injury received on the person of the Appellant has remained unexplained

by the prosecution and thus a doubt is cast upon on the entire prosecution

case. No incident took place at C-Block, as no blood was found on the spot

though it is the case of the prosecution that the injured was bleeding

profusely. No earth control has been seized from the spot. Thus, the place of

occurrence is doubtful.

4. Learned counsel for the Appellant further contends that PW10 Dr.

Ashok Acharya rendered the opinion on the nature of injuries to be

"dangerous" without going through the entire case-sheet. Dr. Sunita Pandey

Crl. A. 504/1999

who had prepared the MLC has not been examined as a witness. No opinion

has been sought from the doctor that the injuries on the person of the injured

Vijay Singh were possible by the said weapon, that is, churi in the present

case and hence the weapon which is seized in the present case cannot be said

to be connected to the crime. The CFSL report Ex. PW11/C records that no

human blood could be detected on the knife which also points out the fact

that the said knife is not connected to the crime. Though, the witness has

deposed that the Appellant inflicted two injuries on the victim, however, the

MLC records three injuries on the person of Vijay Singh. It is stated that the

Appellant has been falsely implicated in this case and in view of the material

discrepancies in the prosecution case, he is entitled to be acquitted. The

learned amicus curiae further prays that the Appellant is a poor man and was

working as a tailor when his services were dispensed with and now he is

doing petty odd jobs in his native place at Sikar, Rajasthan. He has undergone

more than two years of sentence and in case this Court comes to the

conclusion that the Appellant has been rightly convicted for the offence

punishable under Section 307 IPC, his sentence be modified for the period of

imprisonment already undergone.

5. Learned APP on the other hand contends that the testimony of injured

Vijay Singh PW2 sufficiently proves the case of the prosecution beyond

Crl. A. 504/1999

reasonable doubt. Immediately after the incident, he had been admitted in the

hospital. As per his MLC Ex. PW 10/A it is opined that the injured had

received three injuries; on the right, left side of occipital region and right side

of low back. Thus the injuries sustained on the right and left side of the

occipital region has been considered to be one injury by the witnesses and

thus they have deposed correctly. The Appellant was overpowered and

apprehended on the spot and „Churi‟ recovered from him was blood-stained

however, no blood group could be detected on the clothes and no opinion

regarding the presence of human blood on the knife could be given as the

blood had disintegrated. Also the testimony of the injured proves the motive

for commission of the offence as it was due to the victim/injured that the

Appellant had lost his job due to which the Appellant took revenge.

Furthermore, the testimony of PW2 stands corroborated by the testimony of

his brother Preetam PW3. The presence of PW3 is natural as both the

brothers were working in the same factory and would be thus, returning back

to his house together after completing their work from the factory. Non-

joining of public witnesses at the spot of occurrence does not discredit the

cogent testimony of PW2 and PW3. As regards the contention of the learned

Amicus Curiae that there are material improvements in the testimony of the

injured victim as regards the bicycle, it is contended by the learned APP that

Crl. A. 504/1999

they are not material improvement which would discredit the otherwise

cogent evidence of PW2. The injuries on the person of the Appellant are

minor abrasions on the eyes and right side of forehead and could have been

caused during the scuffle at the spot. The fact that the Appellant was

apprehended on the spot further stands proved by the MLC of the Appellant

which was prepared at 11:25 on 2nd December, 1994 by Dr. Suneeta Pandey

i.e. immediately after the incident thus, ruling out the possibility of any false

implication. The injured was also admitted at DDU hospital immediately after

the incident and he was declared fit for statement at 10.15 p.m. Thus the

appeal deserves to be dismissed being devoid of merit.

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

PW2 Vijay Singh is an injured witness who has received stab injuries. The

testimony of this witness not only proves the incident but also the motive on

the part of the Appellant to harm the victim; as he exhorted by the Appellant

that he was getting his services terminated every now and then. PW2 states

that on 2nd December, 1994 when he was returning from duty at about 8:40

p.m., he was waylaid and inflicted injuries by the Appellant. PW2 in his cross

examination stated that he was the one who was bringing work to be carried

out in the factory and was responsible that the work should be done as per the

specifications. Since, the Appellant did not work as per specifications, his

Crl. A. 504/1999

services were dispensed with. PW 3 and the Appellant were working as tailors

whereas PW2 was the Contractor. Thus, the Appellant had a grudge against

PW2.

7. The injuries on PW2 have been opined to be dangerous in the MLC

Exhibit PW10/A. As per MLC Ex. PW10/A, the injuries received on the

person of the Appellant are (i) CLW 3cm x 3cm right side of occipital region

(ii) CLW 3cm x 2cm left side of occipital region and (iii) Stab wound 3cm x

2cm right side of low back. Though PW10 Dr. A. Acharya has stated that he

did not check the entire case sheet but this fact does not discredit his opinion

because for rendering the nature of the injury each and every aspect in the

case-sheet is not required to be looked into. It is the nature of injury, the size

thereof, the part of body where it is caused and the possibility of the weapon

by which it can be caused has to be looked into. Moreover PW12 Dr. R.P.

Kaur has opined that as an expert she can also say that the injuries on the

person of PW2 Vijay were dangerous in nature.

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

the Appellant that since the weapon of offence has not been shown to the

doctor, the same cannot be connected with the offence. It is well settled that

the weapon of offence can be connected to the injuries caused by either the

opinion of the doctor that the injuries are possible by the said weapon or by Crl. A. 504/1999

the witness identifying the weapon of offence from which the injuries are

caused. In the present case both PW2 the injured and PW3 Preetam Singh

have identified the churi. Also PW7 HC Ravi Dutt who reached the spot and

apprehended the Appellant has also identified the churi Exhibit P-1 to be the

same which was seized immediately on his apprehension. Thus the weapon of

offence „churi‟ in the present case is connected with the injuries caused to

PW2.

9. The injured PW2 has also identified his shirt and baniyan Ex.P2 and P3

respectively which as per CFSL report Ex.PW11/C are opined to contain

human blood. The defence of the Appellant was that PW2 received injuries

due to fall on a sharp object, PW12 Dr. R.P. Kaur in her cross examination

has denied that the injury No.1 and 2 i.e., the injuries on the head of PW2

could be caused if someone falls on some sharp edged object. These evidences

together are sufficient to further corroborate the cogent and convincing

testimony of PW 2 the injured. The fact that a quarrel was going is mentioned

in the first DD Entry No. 28 Ex. PW8/A. The Appellant has received

abrasions. PW12 Dr. R.P. Kaur has stated in her cross examination that the

abrasions suffered by the Appellant could have been caused by struggle. She

has further stated bruises are caused by fist blows and not abrasions, thus

demolishing the Appellants defence that he was beaten by HC Ravi Dutt. The

Crl. A. 504/1999

injuries being simple blunt, the non-explanation thereof by the prosecution is

not fatal to the prosecution case. The law on the said issue is well settled as

laid down in Sikander Singh vs. State of Bihar, JT 2010 (7) SC 637:

"29. Finally, the third question for consideration is as to what is the effect of non-explanation of injuries suffered by Appellant Sheo Jee Singh. It cannot be held as an unqualified proposition of law that whenever the accused sustains an injury in the same occurrence, the prosecution is obliged to explain the injury and on failure of the prosecution to do so, the prosecution case has to be disbelieved. In Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors: [JT 2001 (Suppl. 1) SC 415: (2001) 6 SCC 145], a Bench of three Judges of this Court, referring to earlier three-Judge Bench decisions, observed that before non- explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect prosecution case, the Court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of occurrence in question.

30. In our view, in the present case, having regard to the nature of the injuries allegedly suffered by the said Appellant, the case of the prosecution cannot be overthrown because of non- explanation of the said injuries. As per the medical report, the injuries allegedly suffered by Sheo Jee Singh were - 'swelling covering around the lower 1/3 of right upper arm just above right elbow and fracture of underlying bone'. The injuries are simple and superficial in nature. In view of the fact that the evidence against the Appellants for having committed the afore- stated offences has been found to be cogent and creditworthy, in our opinion, it outweighs the effect of the omission on the part of the prosecution to explain the injuries. We reject this ground as well."

Crl. A. 504/1999

10. The fact that PW 3 first went to drop his bicycle at the factory and then

reached the hospital cannot belie his version and lead to the inference that he

was not present at the spot. The injured was being taken to the hospital in a

rickshaw by PW4 Constable Rajneesh and thus PW3 immediately reached

after dropping his bicycle. Thus, this contention of the learned Amicus Curiae

that this is an unnatural conduct on the part of PW3 the brother and his not

being an eye witness to the offence is liable to be rejected. The two

Constables PW7 and PW4 who were on patrolling and reached at the spot

hearing the screams of PW2 Vijay Singh and PW3 Preetam have stated that

when they reached at the spot, PW2 Vijay Singh was found injured and PW3

Preetam Singh was trying to apprehend the accused Gulzari Lal. They

apprehended the Appellant and snatched Churi from his hand. The testimony

of PW4 and PW7 further corroborates the presence of PW3 along with PW2

on the spot. Moreover, the version of coming on the bicycle is not an

improvement as the same was not stated by PW3 in his examination in chief

but was elicited in the cross examination.

11. From the testimonies of PW 2 Vijay Singh, PW3 Preetam Singh, PW 7

Ravi Dutt, PW4 Constable Rajneesh, PW9 Constable Ramesh Kumar, and the

testimonies of medical experts PW10 Dr. Ashok Acharya and PW 12 Dr. R.P.

Kaur, the prosecution has proved its case beyond reasonable doubt. Thus, the

Crl. A. 504/1999

impugned judgment of conviction for offence punishable under Section 307

IPC is not liable to be disturbed in the present appeal.

12. The Appellant has been awarded a sentence to undergo Rigorous

Imprisonment for four years and to pay a fine of `3,000/-. The Appellant has

already undergone a sentence of more than two years. The incident is of the

year 1994. He has faced the ordeal of the trial and the appeal for the last 16

years and is on bail for the last ten years during which he has re-established

ties in the society. It would be thus in the interest of justice to modify the

sentence of the Appellant to the period already undergone.

13. The appeal is, accordingly, disposed of upholding the conviction for

offence punishable under Section 307 IPC and modifying the order on

sentence to imprisonment for a period already undergone. The bail bond and

the surety bond are hereby discharged.

(MUKTA GUPTA) JUDGE

FEBRUARY 04, 2011 dk

Crl. A. 504/1999