Kishan vs State
2011 Latest Caselaw 1253 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Date of Decision 3rd March, 2011.

+                    CRL.APPEAL NO.128/1999

       KISHAN                                   ......Appellant
                     Through:    Mr. Bhupesh Narula, Amicus-Curiae

                                 Versus

       STATE                                 ......Respondent
                     Through: Mr. Pawan Sharma, Standing
                     Counsel for State.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?

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

PRADEEP NANDRAJOG, J.

1. Vide impugned judgment and order dated 20th August 1998, the appellant, Kishan, has been convicted for the offence of having murdered deceased Prem Chand and for which offence he has been sentenced to undergo imprisonment for life and pay fine in sum of ` 1,000/-. Appellant has also been convicted for an offence punishable under Section 27 of the Arms Act and for which we find no sentence imposed upon him.

2. In convicting the appellant, the learned Trial Judge has relied upon the stated eye witness account of 3 persons; namely Bihari Lal PW-1, Smt. Meena Kumari PW-7 and Mool Chand PW-10.

3. Record shows that Mool Chand was with the deceased at the spot where the assault took place. MLC, Ex. PW2/A, records that Prem Chand S/o Bihari Lal, aged 34 years, was brought at the casualty of G.T.B. Hospital by Mool chand at 8.45 p.m. on 2nd September, 1991.

4. Statement Ex.PW10/A made by Mool Chand soon after the crime which has formed the basis of the F.I.R. and the endorsement there-under evidences that the rukka was dispatched at 9.40 p.m. from the spot. D.D.No.20A, Ex. PW13/A, shows that F.I.R.No.281/1991 was registered at the Police Station at 9.55 p.m.

5. D.D. No. 18A was recorded at Police Station Nand Nagari at 8.45 p.m. about somebody being stabbed at the place of the crime.

6. The fact that the crime took place at around 8.30 p.m. stands established by D.D.No.18A. Mood Chand‟s presence with the deceased stands established by the M.L.C. of the deceased. The rukka and the D.D. entry pertaining to the time F.I.R. was registered evidences that there was hardly any scope for Mool Chand to be planted.

7. Even otherwise, we note that Mool Chand would be a natural witness for the reason the scene of the crime is Public Street near the house of the deceased and that of Mool Chand.

8. As deposed to by Mool Chand, a fight took place at around 6.30 - 7.00 p.m. between accused and one Hoshiyara. Deceased intervened. He separated the two.

9. This appears to be the grudge which the appellant had against the deceased.

10. As further deposed to by Mool Chand, at around 8.00 p.m. the appellant came and suddenly launched a lethal assault on the deceased and before the deceased could be rescued, the appellant ran away. He i.e. Mool Chand removed the seriously injured deceased to the hospital where he was declared brought dead.

11. Relevant would be to note that during cross-examination a suggestion has been put to Mool Chand which he denied, but the nature of the suggestions is important. It was suggested to Mool Chand that at the relevant time, he i.e. Mool Chand was in his house. That he came out when he saw the appellant quarrelling with the deceased. That Mool Chand had a knife in his hand which he used to target a blow on the appellant but in the process caused injury to the deceased.

12. It is apparent from the cross-examination and the suggestions afore-noted that appellant admits presence of Mool Chand at the spot.

13. Bihari Lal PW-1, has deposed in sync with PW-10 and we note that during cross-examination, similar suggestion has been given by the appellant. The suggestions being that Mool Chand was armed with a knife and he tried to strike the

accused and instead of hitting the accused, struck a lethal blow into the body of Prem Chand.

14. Meena Kumari PW-7, the sister of the deceased and wife of Mool Chand has corroborated the testimony of PW-1 and PW-10.

15. Nothing has been brought out by learned counsel for the appellant during arguments to discredit the testimony of PW-1, PW-7 and PW-10.

16. Noting the line of cross-examination adopted while putting suggestions to PW-1 and PW-10, we may note that when examined under Section 313 Cr. P.C., the appellant never gave any such version. He simply denied everything.

17. We are in agreement with the view taken by the learned Trial Judge that appellant had inflicted the fatal wounds upon the person of the deceased.

18. Whether the acts constitute the offence of culpable homicide not amounting to murder or murder requires us to have a look at post-mortem report of the deceased and the testimony of the author thereof Dr.L.T. Ramani PW-5, who noted 5 injuries on the person of the deceased as under:

"(1) An incised wound 2.5 cms x 2.5 cms x ? present vertically on the middle of left arm on the lateral aspect. Lower end of the injury was actually cut.

(2) An incised wound 1.5 cms x 2.5 cms x ? vertically placed on the medial aspect of left arm showing lower end actually cut. Injuries No 1 and 2 were found to be communicating with each- other.

(3) Incised stab wound 2.3 cms x 1 cm x ? placed obliquely on the left capular area 2 cms below and lateral to inferior angle of scapula. Lower medial end of the injury was actually cut. (4) Incised wound 2 cms x 1 cm x ? obliquely placed on the upper outer part of left buttock. Lower end was actually cut.

(5) An abrasion 1 cm x 0.5 cm on the right elbow."

19. The injuries inflicted on the person of the deceased are indicative of the intention. The injuries show that the deceased managed to ward of two attacks using his left arm to defend his torso and he could not do so by the time the third blow was struck. We further note that it is injury No.3 which has proved to be fatal; entering the left chest cavity through the 6th inter costal space the knife cut the lower left lung 3 cms deep. Total depth of the injury was 7 cms.

20. Keeping in view the testimony of PW-1, PW-7 and PW-10, it is apparent that nurturing an anger and hatred against the deceased for having rescued Hoshiyara from the clutches of the appellant at around 7-7.30 pm, armed with a knife, appellant returned after about an hour and launched a brutal attack upon the deceased. The attack is pre-meditated and keeping in view the injuries inflicted upon the deceased, we hold that the appellant had the requisite intention to cause death of the deceased.

21. Ignoring recovery of a knife on which human blood of the same group that of the deceased was found; recovery being at the instance of the appellant, and preferring to be guided by the eye witnesses, we dismiss the appeal.

22. The bail-bond and surety bond, furnished by the appellant are cancelled. Appellant shall surrender to serve the remaining sentence.

PRADEEP NANDRAJOG,J

SURESH KAIT, J MARCH 03, 2011 „acm‟