Jitender Kumar vs State Of Delhi
2011 Latest Caselaw 2553 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of Hearing : 28th April, 2011
                                               Date of Decision : 12th May, 2011
+     CRL.A No.128/1998

JITENDER KUMAR                                    ...     APPELLANT
                               Through: Mr. K.B. Andley, Senior Advocate with
                                        Mr. M.L. Yadav, Advocate.

                                      Versus

STATE OF DELHI                                    ...   RESPONDENT
                               Through: Mr.Lovkesh Sawhney, APP for the State

         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?                                No
         2. To be referred to the Reporter or not?                   No
         3. Whether the Order should be reported
            in the Digest?                                           No

                                  JUDGMENT

G.P. MITTAL, J.

1. This Appeal is directed against the judgment dated 11.03.1998 and the order on sentence dated 12.03.1998 whereby the Appellant was convicted for the offence punishable under Section 300 read with Section 302 Indian Penal Code (IPC) and was sentenced to undergo imprisonment for life and to pay the fine of `500/- or in default of payment of fine to undergo Simple Imprisonment for ten days.

2. Succinctly stated, the case of the prosecution is that on 06.06.1995 at about 7:00 P.M. Bharat Chetteri (the deceased) along with his friends Raju Chouhan (PW-1), Jaifry Massi (PW-2), Dalip, Nanu and others was taking tea at Ramu's tea stall. Deceased needed some money as he had to attend the Court proceedings on the next day. He, therefore, requested Raju Chouhan (PW-1) to lend him ` 400/-. Raju Chouhan, in order to help the deceased approached his sister Lata, a resident of D-8/4, Vasant Vihar New Delhi to arrange the

said sum. The deceased and Raju went to the house of Lata on Raju's motorcycle. While the deceased waited outside, PW-1 went inside the house. He (PW-1), however, was unable to arrange the money. The deceased, therefore, requested PW-1 to arrange at least ` 200/-. PW-1 again went inside the house of his sister. PW-1's sister expressed her inability to arrange even that much of money and he informed the deceased about the same.

3. At about 7:30 P.M., 20-25 boys came from RBI colony's side. They were collecting contribution for "Mata Ka Jagran". Those boys surrounded the deceased. One of them, namely, Vicky (acquitted by the learned ASJ by the impugned judgment) caught hold of both the hands of the deceased and struck his head on the deceased's head. Appellant Jitender took out some sharp edged weapon from the left side of his pant exclaiming "Aaaj Iska Kaam Tamam Kar Deta Huin". Appellant gave the blows in Bharat's abdomen with the sharp edged weapon. Deceased fell on the ground. PW-1 ran to his sister's house while raising an alarm "Bachao-Bachao". Some people gathered at the spot. Dalip, Nanu, Jaifry also came at the spot. PW-1 and others (Dalip, Nanu and Jaifry Massi) removed the deceased to Holy Angels Hospital.

4. The deceased was given first aid at Holy Angels Hospital and the patient was referred to Safdarjung Hospital. DD No.37-A, Ex.PW-5/C6 was recorded at 10:05 P.M. in Police Station Vasant Vihar regarding admission of the deceased in Safdarjung Hospital in an injured condition. SI S.S.Rana (PW-

16) reached Safdarjung Hospital at about 10:30 P.M. The deceased succumbed to the injuries at about 10:40 P.M. before he could be examined by the Investigating Officer (IO). Information regarding the death of Bharat Chetteri was recorded in the Police Station at 11:00 P.M. Inspector Mahender Singh, SHO Police Station Vasant Vihar proceeded to the spot at 11:10 P.M. for making inquiries into the incident. DD No.39-A (Ex.PW-5/C8) was recorded in the Police Station in this regard.

5. SI S.S.Rana was informed by Rajender @ Nanu, who had taken the deceased to Safdarjung Hospital that Raju Chouhan (PW-1) was present along with the deceased at the time of the incident. SI S.S. Rana also reached the spot from the Hospital and found Raju Chouhan there. The SI recorded the statement

Ex.PW-1/A of Raju Chouhan and made his endorsement Ex.PW-16/A and sent the same to the Police Station through Constable Balraj Singh for registration of a case under Section 302/34 IPC.

6. The FIR Ex.PW-8/A was recorded in the Police Station at 12:30 A.M. DD No.3-A dated 07.06.1995 Ex.PW-8/D was recorded at 12:30 A.M. regarding arrival of Constable Balraj with the rukka (Ex.PW-16/A) from SI S.S. Rana. The Special Report was sent to learned Illaqa Magistrate and investigation was taken over by Inspector Mahender Singh (PW-25).

7. The Appellant and co-accused Vicky pleaded not guilty to the charge framed under Section 302 read with Section 34 IPC. The prosecution, in order to bring home the guilt of the accused, examined 25 witnesses.

8. PW-1 Raju Chouhan is an eye witness to the incident, PW-2 Jaifry Massi, PW-5 Dr. G.K. Chobey, PW-16 SI S.S.Rana and PW-25 Inspector Mahender Singh are the important and material witnesses produced by the prosecution.

9. Testimony of PW-2 Jaifry Massi gives the motive for commission of the offence and is corroborative to the version given by PW-1 Raju Chouhan that they had tea at Ramu's Dhaba at 7:00/7:15 P.M. and saw PW-1 and deceased leaving Ramu's Dhaba together and that he reached the spot on hearing an alarm from PW-1 "Bhart Ko Maar Diya Chaku, Churi Se Maar Diya".

10. PW-5 Dr. G.K.Chobbey conducted autopsy on the dead body of Bharat Chetteri (the deceased). He found three stab injuries and one abrasion on the dead body of the deceased. He deposed that the internal examination revealed the peritoneal cavity was full of blood, approximately 4 liters of blood present. He opined the cause of death due to hemorrhagic shock as a result of sharp edged weapon. Injuries No.1 and 2 individually and collectively were opined to be sufficient to cause death in the ordinary course of nature. Blood swab and blood gauge were preserved and handed over to the police with a sample seal.

11. PW-16 SI S.S. Rana carried out the initial investigation in the case. He reached Safdarjung Hospital on receipt of information regarding admission of the injured Bharat Chetteri. He recorded statement Ex.PW-1/A of PW-1 and

sent rukka to the Police Station for registration of the case. He remained associated in the investigation of the case with PW-25 Inspector Mahender Singh.

12. PW-25 Inspector Mahender Singh was working as SHO Police Station Vasant Vihar on 06.06.1995. He reached street D-8/4, Vasant Vihar (i.e. the spot) at 12:15 A.M. in the night. He deposed that SI S.S. Rana along with the other staff was also present there. He read the statement Ex.PW-1/A which was sent to the Police Station for registration of the case. He lifted blood, blood earth, control earth, prepared site plan at the instance of Raju Chouhan. After registration of the case, he recorded statement of other witnesses. He deposed that at 9:30 A.M., he reached Safdarjung Hospital and held inquest proceedings and sent the dead body for postmortem examination. Appellant Jitender was arrested at about 2:45 P.M., his disclosure statement Ex.PW- 15/D was recorded leading to the recovery of „Chorsi‟ (Chisel) which was seized by memo Ex.PW-11/B.

13. On closure of prosecution evidence, the Appellant and the co-accused were examined under Section 313 Cr.P.C. The Appellant denied the prosecution's allegations and pleaded his false implication. He stated that he refused to join the Test Identification Parade as Raju Chouhan (PW-1) knew him before hand. He stated that he was brought to the Police Station at 2:00/2:30 in the night. The Chorsi was also there in the Police Station and he was implicated in the case falsely at the instance of the police.

14. By impugned judgment, the Trial Court acquitted co-accused Vijay @ Vicky on the grounds that there were doubts about his identity and the role ascribed to him was not substantiated by medical evidence.

15. With regard to the Appellant, the Trial Court found the recovery of Chorsi (Chisel) Ex.P-1 to be doubtful on appreciation of evidence of PW-11 Kallan and the postmortem examination conducted by PW-5 Dr. G.K. Chobbey. We have our reservations about the reasoning given by the learned ASJ to reach the said conclusion. However, since blood, particularly blood group of the deceased was not detected on the Chorsi Ex.P-1, its recovery cannot be said to be a discovery of any fact within the meaning of Section 27 of the Evidence

Act. Hence, we are not inclined to go into that question and re-appreciate the evidence regarding recovery of the Chorsi.

16. The prosecution case mainly rests on the testimonies of PW-1 Raju Chouhan and PW-2 Jaifry Massi.

17. It is argued by the learned counsel for the Appellant that PW-1 was blowing hot and cold as categorically stated in his cross examination conducted on behalf of the Appellant that he had not heard the conversation of 20-25 boys at the tea stall. He saw 20-25 boys for the first time from a distance of 100 yards. They were coming from the side of Kuredaan. As soon as one of the boys caught his shirt, he ran away inside his sister's house. He returned after five minutes. Those boys were not there. He did not see anyone beating Bharat at any time.

18. It is urged that the conduct of PW-1 is highly unnatural. If he had seen the incident taking place, it was natural for him to have intervened and immediately informed the police. It is urged that Raju's sister, an important witness to the unfolding of the prosecution version was not examined. There is delay of 2-3 hours in recording of the FIR which results in the embellishment and introduction of coloured version.

19. Lastly, it was urged that there was no motive and thus the case of the prosecution is not proved beyond reasonable doubt. Thus, argued the learned counsel that the Appellant is entitled to be acquitted giving him benefit of doubt.

20. On the other hand, it is urged by the learned APP that PW-1 wavered in his cross-examination only on the ground of threats extended by the Appellant as his cross-examination was recorded after about eight months of recording of his examination-in-chief. There is no reason to disbelieve the version given by PW-1 in his examination-in-chief as it was corroborated by PW-2. It is argued, the FIR was promptly recorded as soon as the information regarding the incident was received in the Police Station. The Special Report was sent to the learned Illaqa Magistrate in the dead of the night. Though, in case of direct evidence, the prosecution is not required to prove motive, yet the prosecution has place on record DD No.25-A, Ex.PW-8/K recorded on

04.06.1995 whereby the Appellant had made a complaint against the deceased regarding the beatings given to him.

21. For proper appreciation of the testimony of PW-1, it would be appropriate to extract part of his examination-in-chief hereunder:-

"I had know deceased Bharat who was residing in Vasant Vihar since his childhood. On 6.6.95 at about 7 P.M. I alongwith Bharat, Jaifry, Dalip and Nanu was taking tea at the tea stall of one Ramu at D block, Vasant Vihar. Deceased Bharat took me a side and asked for Rs.400/- which he needed in connection with his hearing in the court. I then took deceased Bharat on my motor cycle to the house of my sister at D-8/4 Vasant Vihar. I left Bharat on the road under a tree and went to my sister who had her house first floor in the servant quarter and asked for the money from my sister but she refused. I returned and told Bharat that my sister had refused to give Rs.400/- on which Bharat asked me to bring Rs.200/- in the meantime 20 to 25 boys came and they went to the tea stall where other boys were taking tea named above amongst those 20/25 persons there were both the accused present in the court. They asked the boys who were at the tea stall as to where Bharat would be available and then those 20/25 persons came and surrounded Bharat. Then accused Vicky gave a blow with his head on the head of Bharat and he also gave a fist blow then Vicky caught hold of Bharat by his hands and then accused Jitender (witness correctly identified, accused Jitender and Viky) took out gupty, used by a carpenters and he gave three four blows with the gupty on the stomach of Bharat. I raised alarm and I ran towards the house of my sister. Bharat on receipt of blows had fallen down. I called out saying "BHARAT KA KOON HO GAYA" on which Dalip, Nanu, Jaifry and Lalit came from the tea stall and they removed Bharat to the Holy Angels there the doctor did not take him and told that since it was a police case he would not take up the case and said that the inured be taken to Safdarjung Hospital. From Holy Angels I returned to my house. I learned in the night at about 10:00 P.M. that Bharat had expired. Police came to my house and I gave my statement which was reduced into writing. My Statement is Ex.PW-1/A which bears my sign at point A. The police then took me to P.S. Vasant Vihar where my statement was taken and then I was allowed to go and was asked that I would be called again if required.............".

22. Cross-examination of PW-1 on behalf of co-accused Vijay @ Vicky was also recorded on the same date i.e. 03.04.1996. In cross-examination, PW-1 fully supported the prosecution version.

23. On 03.04.1996 a request was made by the learned counsel for the Appellant that he had been engaged only on that day and needed some time to prepare

the case to enable him to cross-examine the witnesses. The cross-examination was deferred for 20.05.1996. Again an application for an adjournment was moved on behalf of the Appellant on the ground that his counsel was not available. After a couple of hearings, his cross-examination was recorded on 04.02.1997 i.e. after ten months of recording of his examination-in-chief. It was at this time that PW-1 tried to give a twist to the prosecution case and to his deposition recorded in examination-in-chief by stating that as soon as one of the boys caught hold of his shirt, he ran away to his sister's house and returned after five minutes. He deposed that the boys were not there and he did not see anyone beating Bharat at any time.

24. The witness was allowed to be cross-examined on behalf of the State. The incriminating part deposed by this witness in his chief examination was put to him in the cross-examination. The witness stated that, that part of his statement was false and he deposed under fear.

25. It has emerged in cross-examination of PW-2, recorded on 03.04.1996 that members of both the parties i.e. the accused party and the deceased party had gone to attend the hearing (on 03.04.1996). He admitted that Raju Chouhan (PW-1) had expressed fear to his life after making statement in Court, in the forenoon and that protection was given to him at the instance of the Public Prosecutor.

26. The Trial Court referred to the circumstances i.e. disclosure to Jaifry Massi (PW-2) (immediately on his reaching the spot just after the crime) that the Appellant had committed the crime, was admissible as res gestae under Section 9 of the Indian Evidence Act. The Trial Court found that the FIR was promptly recorded on the basis of the statement of PW-1 and was sent to the Illaqa Magistrate at 3:30 A.M. The Trial Court observed that if the witness had any fear of the police, the same would have been disclosed by him on 03.04.1996, when the examination-in-chief was recorded. The Court, therefore, opined that the statement made in the examination-in-chief was the true version and the cross-examination recorded on 04.02.1997 was false.

27. We subscribe to the reasoning given by the Trial Court. PW-2 reached the spot on hearing an alarm and whatever was stated by PW-1 immediately after the incident i.e. "Bharat Ko Maar Diya Chaku, Churi Se Maar Diya" is

admissible res gestae under Section 9 of the Indian Evidence Act. Immediately, the deceased was seen lying on the road unconscious and bleeding from the mouth. The Supreme Court in Swaran Singh v. State of Punjab, (2000) 5 SCC 668, commented about the practice of seeking adjournments in the criminal cases to tire the witnesses. The Supreme Court held as under:-

".........It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. ........"

28. In Khujji v. State of M.P., (1991) 3 SCC 627, a witness changed his stand on the identity of the accused. The Supreme Court held that the statement in cross-examination on the question of identity of the Appellant was a clear attempt to wriggle out what the witness had stated earlier in his examination- in-chief.

29. In Nisar Khan v. State of Uttaranchal, (2006) 9 SCC 386, the eye witnesses supported the prosecution case consistently. Their cross-examination was recorded after about one year of the recording of their examination-in-chief. In cross-examination, the witnesses turned hostile as PW-1 has turned hostile in this case. The Supreme Court observed that the accused and the prosecution witnesses were at loggerheads and known to each other earlier. It was held that by that time the eye witnesses were recalled, they were won over either by money or by muscle power or by threats or intimidation. The testimony of the witnesses in examination-in-chief was thus relied upon for conviction of the accused.

30. Nisar Khan (supra) fully applies to the facts of this case.

31. In view of the foregoing discussion, we are of the view that the testimony of PW-1 regarding infliction of the injuries with a sharp edged weapon on the person of the deceased is credible and reliable. The same finds support from the testimony of PW-2 in the form of res gestae as observed by us earlier.

32. There is no unexplained delay in recording the FIR. The information regarding admission of an injured is normally sent by the hospital where the

injured is admitted. In this case, the injured was taken to Holy Angels Hospital which was close to the spot. The doctor from that hospital preferred to refer the injured to a Govt. Hospital after providing him the first aid. As soon as the deceased was taken to Safdarjung Hospital, intimation was sent to Police Station Vasant Vihar on the basis of which DD No.37-A, Ex.PW-5/C6 was recorded. SI S.S. Rana reached Safdarjung Hospital at 10:30 P.M., yet unfortunately, the deceased succumbed to the injuries at about 10:40 P.M. SI S.S.Rana and then Inspector Mahender Singh reached the spot and recorded statement of PW-1 Raju Chouhan on the basis of which the case was immediately registered at 12:30 A.M. in the night and the copy of the FIR reached the Illaqa Magistrate at 03:30 A.M.

33. In the circumstances, we are of the view that there was no unexplained delay in recording of the FIR.

34. As far as non-examination of Lata, PW-1's sister is concerned, she was a corroborative witness, who ought to have been examined by the IO. This is, however, a minor lapse on the part of the Investigating Officer, which does not affect the prosecution version, as we are convinced that the incident was witnessed by PW-1 Raju Chouhan and which finds support from the testimony of PW-2 who immediately reached the spot.

35. An accused cannot be acquitted merely because of some lapse on the part of the Investigating Officer, as held by the Supreme Court in Gyasuddin Khan v. State of Bihar, 2003 (12) SCC 516 and State of West Bengal v. Mir Mohammad Omar, 2000 (8) SCC 382.

36. The injuries No. 1 and 2 on the person of deceased Bharat Chetteri were found by PW-5 Dr. G.K. Chobbey individually as well as collectively sufficient to result in death in the ordinary course of nature. The injuries were on vital parts of the body given by Chorsi used by the carpenters, which is very dangerous when used as a weapon. The injuries were caused with the intention of causing death and even otherwise the injuries which were intended to be inflicted were sufficient to cause death in the ordinary course of nature. Thus, there is no escape from the conclusion that the Appellant

committed offence of murder as defined under Section 300 IPC. The Appellant was rightly convicted under Section 302 IPC.

37. We do not find any error or infirmity in the impugned judgment and order.

The Appeal is devoid of any merit. It is bound to fail and is accordingly dismissed. The Appellant shall surrender before the Trial Court on 24.5.2011 to serve the remainder of his sentence. The Registry shall transmit the Trial Court records and this judgment, forthwith, to ensure compliance.

(G.P. MITTAL) JUDGE

(S. RAVINDRA BHAT) JUDGE MAY 12, 2011 vk