Delhi High Court

Narain Singh vs State on 16 July, 2012

Author: Sanjiv Khanna

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       CRIMINAL APPEAL NO.337/1998

                                    Reserved on:     5th JULY, 2012
%                                   Date of Decision: 16th JULY, 2012


NARAIN SINGH                                     ..... Appellant
                          Through   Mr. Jayant K. Sud, Mr. Harendra
                                    Singh and Mr. Vishal Dabas,
                                    Advocates.

                          versus

STATE                                               ..... Respondent

Through Ms. Richa Kapoor, APP.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE S.P.GARG

SANJIV KHANNA, J:

Narain Singh, the appellant impugns his conviction vide

judgment dated 23rd July, 1998, under Section 302 of the Indian Penal

Code, 1860 („IPC‟ for short) for murder of Pradeep Kumar and under

Section 324 IPC for having caused injuries to Prem Pal. The appellant

also impugns the order on sentence directing the appellant to undergo

rigorous imprisonment for life and fine of Rs.2,000/- (in default to

undergo rigorous imprisonment for one year) for the offence under

Section 302 IPC and rigorous imprisonment of one year for the offence

under Section 324 IPC. The two sentences are to run concurrently and

the appellant has been granted benefit of Section 428, Code of

Criminal Procedure, 1973.

2. Death due to injuries caused on the head of deceased Pradeep

Kumar on 22nd March, 1994 is not disputed. It is also not disputed that

Prem Pal, who had appeared as PW6, had suffered injuries on his right

palm. The prosecution has proved the Medico Legal Report of the

deceased Pradeep Kumar as Ex.PW11/A issued by Dr. Preetish S.

Vaidyanathan, the examining Medical Officer, Safdarjung Hospital,

which states that the deceased Pradeep Kumar was brought to the

hospital at 3.25 p.m., with an alleged history of assault. He was

declared dead at 3.55 p.m. Dr. Preetish S. Vaidyanathan had appeared

as PW11. The post mortem report has been proved as Ex.PW12/A.

Similarly, injuries suffered by Prem Pal have been proved by Medico

Legal Report, Ex.PW3/A which was recorded by Dr. A. Ganesh, the

examining Medical Officer. The same was recorded at 4 p.m. on 22nd

March, 1994 with "alleged history of assault". As Dr. A. Ganesh had

left the hospital for UK after preparing Prem Pal‟s MLC report, Dr.

Preetish S. Vaidyanathan (PW11) identified Dr. A. Ganesh‟s

handwriting and signature on the MLC report.

3. The case of the prosecution, which has been accepted by the trial

court, is that the appellant had caused injuries to Pradeep Kumar and

Prem Pal by an axe Ex.P-1 in his house at 279, Sector-II, R.K. Puram,

Delhi on 22nd March, 1994. The case made out against the appellant is

that he knew the deceased Pradeep Kumar and Prem Pal from before.

On the date of the occurrence, the appellant saw them coming from

market and asked them to come inside his house as he wanted to talk to

them about something urgent. Pradeep Kumar and Prem Pal came

inside the house of the appellant. The appellant asked them why they

were spreading rumours about him and a girl, Veena. Thereafter, the

appellant went towards the kitchen. When he came back, he took out

an axe from underneath the bed and gave two blows from the axe on

the head of the deceased Pradeep Kumar. The appellant gave a third

blow on the right hand palm of Prem Pal. Prem Pal ran away to save

himself and went to inform the mother of Pradeep Kumar at village

Mohammadpur. Subsequently, he came back to the bus stand of the

village Mohammdpur and informed some boys standing there about the

incident. The said boys reached the appellant‟s house, where they

found Pradeep Kumar and took him in a three-wheeler scooter to

Safdarjung Hospital. Prem Pal also went to the said hospital. The

information regarding the incident was recorded in DD No.24,

Ex.PW5/A. After the death of Pradeep Kumar, DD No.27,

Ex.PW12/B was recorded. Another DD being DD No.28, Ex.PW5/C

was recorded on receiving information that Prem Pal had been

admitted in the hospital in injured condition.

4. There is ample evidence to show that the incident in question

had taken place at the scene of crime i.e. House No.279, Sector-II,

R.K. Puram, Delhi. SI Manu Sharma, PW-18 in his statement had

stated that pool of blood was found on the floor of the house. He had

also found blood stains on the axe, Ex.P-1, which was lying there. The

site map Ex.PW18/C gives details of the blood which was found on the

floor of the house. The said statement is corroborated by other police

witnesses, namely, ASI Narender Sing (PW4), SI V.P. Singh (PW7)

and Constable Ravinder Singh (PW-16). The police seized a blood

stained ball pen (Ex.P7), slippers (Ex.P1), some hair (Ex.P3), and earth

from the spot (Ex.PW6/H). Photographs were also taken and have been

marked as Ex.PW18/B1 to Ex.PW18/B5.

5. The appellant was arrested in the night intervening 22-23,

March, 1994 while he was sitting at the bus stand of Munirka, Sector 4

at Pratap Market. The next question is whether the appellant had

caused the said injuries on Pradeep Kumar and Prem Pal.

6. Prem Pal, the injured, is the eye witness to the injuries caused by

the appellant to Pradeep Kumar. He appeared as PW-6 and stated that

Pradeep Kumar was his friend as they were studying in the same

school in class Xth. About two months prior to 22 nd March, 1994, one

girl Monika had come to his house when the deceased Pradeep Kumar

was also present. She wanted to „develop friendship‟ with Pradeep

Kumar. When she came out of the house after 10-15 minutes, she saw

that Narain Singh was standing outside his house. She asked Prem Pal

to ask the appellant Narain Singh to step inside his house and, only

then she would come out. Prem Pal asked the appellant, Narain Singh

to go inside his house and on this Narain Singh abused him and stated

that he would give knife blow to him. Narain Singh chased him with

an axe in his hand and Prem Pal had to run away to save his life. On

22nd March, 1994 at about 2.45 p.m. Prem Pal along with the deceased

were coming back after strolling in the market and saw the appellant

standing on the stairs of his house. The appellant called them and

stated that he wanted to have urgent talk with them. He took them

inside his house. He spoke to them about their raising false rumours

against him and a girl, Veena. After about 2-3 minutes, the appellant

went towards the kitchen and then came back. Immediately, he took

out an axe from underneath the bed/cot and exhorted that he would not

leave them alive. He gave two blows with the axe on the head of

Pradeep Kumar and third blow on the palm of the Prem Pal.

Thereupon, Prem Pal ran towards the entrance of the house to save his

life. After opening the bolt, he went towards Mohammadpur and

reported the incident to the mother of the Pradeep Kumar. Then he

came back to the bus stand of village Mohammadpur and narrated the

incident to some of the boys, who were standing there. The said boys

went to the site of the crime and took Pradeep Kumar to Safdarjung

hospital. Prem Pal also reached the hospital. He came to know that

Pradeep Kumar had died. SI Manu Sharma recorded his statement

Ex.PW6/A. He identified the clothes worn by the appellant i.e. pant,

shirt and shoes, which were marked Ex.P-5, 6 and Ex.PW-4/1-2.

7. Prem Pal (PW6) was cross-examined at great length but he has

affirmed what was stated by him in the examination in chief. His

testimony could not be shaken/challenged.

8. Leaned counsel for the appellant has submitted that PW-6 SI,

Prem Pal had not given the name of the boys from Mohammadpur with

whom he had conversation about the incident. The boys had

transported the deceased Pradeep Kumar to the hospital but were not

produced or even named as witnesses. It was submitted that the

conduct of Prem Pal to first go to village Mohammadpur and talk to the

mother of Pradeep Kumar, rather than taking Pradeep Kumar to the

hospital casts a serious or grave doubt whether he was an eye witness

at all. It was stated that he did not even know the name of the boys

who had taken Pradeep to the hospital. Our attention was drawn to the

MLC, Ex.PW11/A, in which the name of the person who had brought

Pradeep Kumar to the hospital was mentioned as Chander Pal s/o Om

Prakash. He also submitted that the alleged conversation and incident

much prior to 24th March, 1994 relating to girl Monika was concocted

and she was not produced as a witness. Our attention was also drawn

to the statement in the cross examination of PW-6 Prem Pal that he did

not see the accused taking out axe from underneath the bed.

9. We have examined the contentions, but do not finding any merit

in the same. Presence of appellant Narain Singh at the time of incident

in the house has not been disputed. Narain Singh‟s finger prints were

found on the Ex. P-1 and have been proved in the CFSL Report (Ex. 4-

A). The chance finger prints marked as Q2 and Q6 are identical with

the right palm and left palm (S1 & S2) of the palm impressions of

Narain Singh. Appellant Narain Singh in his statement under Section

313 of the Code of Criminal Procedure, 1973 had stated as under:-

"A. I am innocent. I have been falsely implicated in this case. I was attacked by the deceased and his friends at my house. They came in my house forcibly and were armed with knives and Axe. I snatched the axe and used the same in my private defence otherwise they would have killed me."

10. Reference to the incidence involving Monika, two months prior

to the date of occurrence as a pre-cursor, it appears was to explain and

establish motive. Monika was a young girl, who was studying in a

school, is apparent from the cross-examination of PW6 Prem Pal. The

prosecution and Prem Pal PW6 had not alleged or stated that Monika

had seen the appellant running behind Prem Pal with an axe. It is well

settled that prosecution is not required to necessarily prove motive

when it relies upon direct evidence i.e. evidence of eyewitnesses.

Failure to establish motive, it was observed in Shivji Genu Mohite vs.

State of Maharashtra, (1973) 3 SCC 219, would not reflect upon the

credibility of a witness who is proved to be a reliable eyewitness. Of

course evidence as to motive may go a long way in cases wholly

dependent on circumstantial evidence (See Bipin Kumar Mondal vs.

State of West Bengal, (2010) 12 SCC 91, State of Uttar Pradesh vs.

Krishna Master, (2010) 12 SCC 324.) Failure to cite and produce

Monika as a witness in the facts of the present case is not material.

11. Immediately after the incident and on suffering injuries, Prem

Pal PW-6 ran away from site, i.e. house of the appellant. This was

natural. He wanted to save himself. It was also natural for PW-6 Prem

Pal to run to the residence of the mother of Pradeep Kumar and inform

her about the attack on her son. Thereafter, he returned and had

spoken to the boys at the bus stand. The conduct of PW6 Prem Pal is,

therefore, not abnormal but understandable and natural. The conduct

does not create any doubt. The said boys have not been produced as

witnesses, but this need not distract us and does not cast or create

premonition about the prosecution case. Failure to examine the boys

or the person, who had taken Pradeep Kumar to the hospital, does not

affect and dilute the statement of Prem Pal PW6 as an eye witness to

the offence. There is ample evidence and material to show that the

deceased Pradeep Kumar was taken to the hospital by a third person

and was seen by the Examining Medical Officer Dr. Preetish S.

Vaidhyanathan (PW11). He was brought to the hospital at 3.25 PM

soon after the incident and was declared dead at 3.55 PM. MLC

recording the said facts was proved and marked Ex.PW 11/A. In these

circumstances, we do not think that the prosecution has failed to prove

or establish the commission and involvement of the appellant because

they have not examined the boys or the person who had brought

Pradeep Kumar to the hospital. The said boys were not eye witnesses

to the occurrence but post occurrence witnesses. Their non

examination is not fatal to the prosecution case, when the eye witness

to the occurrence, PW 6 Prem Pal‟s statement is trustworthy and

reliable. It is corroborated by medical evidence, forensic evidence,

photographs etc. In such cases, the question which has to be raised and

answered is whether the evidence actually produced is reliable or not?

Once it is held that the prosecution evidence is reliable and trustworthy

and proves the offence, failure to examine other witnesses is not fatal.

Non examination of further witnesses does not affect the credibility of

the witnesses relied upon. It is quality of the evidence and not the

number of witnesses that matters. (See Pal Singh vs. State of U.P.,

(1979) 4 SCC 345, State of UP vs. Anil Singh, AIR 1988 SC 1998 and

Krishna Mochi vs. State of Bihar, (2002) 6 SCC 81).

12. We also do not agree that one sentence in the cross-examination

of PW-6 Prem Pal that he did not see the accused taking out the axe

from underneath the bed creates doubt whether the appellant Narain

Singh had taken out the axe. The PW-6 Prem Pal had stated that he

was sitting on the chair and there was a table in front of the chair. A

cot/bed was on the right side of the chair. The appellant was sitting on

the bed. He has stated that the appellant Narain Singh took out the axe

from underneath the bed. The single sentence in the cross examination

of PW 6 that he did not see the appellant take out the axe from

underneath the bed, read with the aforesaid statement, indicates that he

did not bend down or actually see the appellant take out the axe but the

manner in which axe was taken out indicated that the axe was

underneath the bed. The contention of the counsel ignores and fails to

take due notice of the entire testimony and repeated statements of

PW6. He has repeatedly stated and reiterated that the appellant had

taken out the axe from underneath the bed.

13. There is no evidence or material to show that the deceased

Pradeep Kumar and PW-6, Prem Pal had barged or had trespassed into

the house. Pradeep Kumar and Prem Pal were two in number, whereas

the appellant-Narain Singh was alone but they and not the appellant

had suffered injuries. It is not the case of the appellant that he had

suffered injuries and no such allegation was made before the

Magistrate when he was produced for the first time after arrest. There

was no damage to the furniture, fixtures or the main door of the house.

We have reproduced the relevant portion of the statement of Narain

Singh under Section 313 of the Code of Criminal Procedure. The

appellant had pleaded private self defence but did not even try to

establish the said plea. Recently in Arjun versus State of

Maharashtra, (2012) 5 SCC 530, the Supreme Court has observed:-

"21. Further, there is also sufficient evidence to show that the appellant had inflicted injuries on the wife of the deceased as well when she tried to save her husband. The deceased was unarmed so also his wife and the son. At the same time, the accused was armed with a knife. No explanation is forthcoming either in his statement under Section 313 CrPC or otherwise as to why he was having a knife (sura) in his hand at the time of the incident. There is no evidence to show that the deceased, his wife (PW 8) or his son (PW 1) had ever attacked the accused.

22. The law clearly spells out that the right of private defence is available only when there is a reasonable apprehension of receiving injury. Section 99 IPC explains that the injury which is inflicted by a person exercising the right should commensurate with the injury with which he is threatened. True, that the accused need not prove the existence of the right of private defence beyond reasonable doubt and it is enough for him to show as in a civil case that preponderance of probabilities is in favour of his plea. The right of

private defence cannot be used to do away with a wrongdoer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of right to private defence.

23. It is for the accused claiming the right of private defence to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution, if a plea of private defence is raised. (Munshi Ram v. Delhi Admn. [AIR 1968 SC 702 : 1968 Cri LJ 806] , State of Gujarat v. Bai Fatima [(1975) 2 SCC 7 : 1975 SCC (Cri) 384 : AIR 1975 SC 1478] , State of U.P. v. Mohd. Musheer Khan [(1977) 3 SCC 562 : 1977 SCC (Cri) 565 : AIR 1977 SC 2226] , Mohinder Pal Jolly v. State of Punjab [(1979) 3 SCC 30 : 1979 SCC (Cri) 635 : AIR 1979 SC 577] and Salim Zia v. State of U.P. [(1979) 2 SCC 648 : 1979 SCC (Cri) 568 : AIR 1979 SC 391] )

24. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find out whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting.

25. Section 97 deals with the subject-matter of right of private defence. The plea of right comprises the body or property of the person exercising the right or of any other person, and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to the property.

26. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of

private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To plea a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him."

14. It is correct that the finger prints of Prem Pal, PW-6 or the

deceased Pradeep Kumar were not taken. This does not, however, in

the present case, taint or affect the prosecution version. As per the

CFSL reports, Exhibit PW 13/C and Exhibit PW 13/D, chance finger

prints found on the axe marked Q 3, 4 and 5 were either hazy, blurred

or smudged and did not disclose sufficient details for comparison.

Other prints matched with the appellant.

15. Another contention raised on behalf of the appellant was that

there was no motive or intention to kill and, therefore, conviction

should be modified from Section 302 to one under Section 304 Part I

of the IPC. Reliance was placed upon the decision of the Supreme

Court in Gurdip Singh and Another versus State of Punjab, AIR 1987

SC 1151 and decision of this Court in Gurdeep Singh versus State,

1995 JCC 138, 1994 (31) DRJ 579. We do not agree with the said

contention. The Supreme Court in Gurdip Singh's case (supra)

observed that the Court were not fully satisfied that the convicted

appellant had the intention to kill the deceased. It was observed that

they had considerable doubt in their mind, whether the appellant‟s

intention was to kill the victim or he wanted to merely attack him in

order to take revenge for the victim‟s suspected illicit relations with a

female member of their family. This judgment was relied by the Delhi

High Court in Gurdeep Singh (supra) and the Division Bench has

observed that the appellant therein had no motive or intention to kill

the deceased in the said case. He lost self control when filthy abuses

were hurled at him. Consequently, the appellant therein gave random

blows on different parts of the body.

16. Reference was made to Jagtar Singh @ Jagga @ Ganja vs.

State of Delhi 2012 II AD (DELHI) 517, of which one of us (S.P. Garg

J.) was a member. In the said decision, conviction under Section 302

was converted into Section 304 Part I of the IPC, inter-alia recording as

under:-

"11. In the present case, there were two injuries on the neck, and two in the chest, of the deceased, caused by a sharp edged weapon. There were other minor injuries and abrasions; in all there were nine injuries. According to the doctor who conducted the post mortem of Parveen's body, the shock caused as a result of the injuries to the neck and chest was sufficient to cause death in the ordinary course of nature. The surrounding circumstances in the case point to some previous quarrel between the deceased and the Appellant; the latter was agitated and confronted the deceased in the first part of the incident, on the day of

occurrence. The eyewitnesses sought to mollify the Appellant; however, the deceased slapped him. This resulted in the Appellant holding out a threat of dire consequences, and returning very shortly later, and inflicting knife injuries. Though he did inflict several blows - some of which were fatal, it is clear that he did not set out with a pre-meditated intention to kill the deceased. The facts clearly establish an offence under Section 304 Part-I, in which the intention was to cause such bodily injuries as would have resulted in death in the ordinary course of nature."

(emphasis supplied)

The said decision refers to Kandaswamy vs. State of Tamil Nadu,

(2008) 11 SCC 97 in which reference was made to Preetam Singh vs.

State of Rajasthan, (2003) 12 SCC 594 and Subran vs. State of

Kerala (1993) 3 SCC 32.

17. However, in the present case the factual position as noticed

above is entirely different. The appellant had used an axe. The

injuries suffered by Pradeep Kumar, as per the MLC Exhibit PW-11/A,

are as under:-

"1) Sharp incised wound 5 cm long, 3 cm deep in frontal region

2) Sharp incised wound 5 cm long and 3 cm deep in occipital region,

brain matter being visible from both the injuries."

18. In the post mortem report Exhibit PW 12/A, it is stated that the

following injuries were suffered by the deceased Pradeep Kumar:

"1. One incised wound on the right parietal region, obliquely placed, both margins cut out, the upper margin contused and front margin not contused. Both angles acutely cutting the underneath parietal bone. Middle angle was 8cm above from bridge of nose, size 7cm x 1cm x brain tissue deep, cutting the right parietal bone and superior surface of right parietal lobes corresponding with the injury externally.

2. One incised wound longitudinally placed on the left parietal region, the frontal angle was 3 cm away from injury no.2, both margins clean cut lateral (on the left side) margins contused, both angles acute, size 8cm x 1.3cm x brain tissue deep. Underneath left parietal bone cutting upto the superior surface of the left parietal lobe, size 5.9cm x 1 cm

3. One incised wound transversely placed in the middle of the right parietal region 8 cm away from injury no. 1, both margins clean cut, posterior margin contused, with both angles acute size 8cms x 1.3cm x brain tissue deep. Underneath right parietal lobe, cutting of superior surface of right parietal lobe corresponding with ante mortem injury externally size 6.1 cm x 1.2cm x brain deep.

4. One longitudinally placed incised wound on left occipital region, outer of left mastoid region, both angles acute, both margins clean cut and contused size 7cm x 1cm x bone deep (with clotting of left occipital bone)

5. One incised wound transversely placed in the left and right occipital region, both margins clean cut, contused, both angles acute size 10cm x 2.3cm x brain tissue deep, fracture of occipital bone size 8.3cm x 2.1cm x brain deep.

Internal injuries:

Cutting of right parietal bone frontal side with cutting of brain tissue size 6cm x 1.2cm x brain tissue deep, corresponding with ante mortem injury no.1 Both the lungs, kidneys and spleen were congested Stomach contained semi digested liquid contents weighing 190gm, with healthy mucosa."

19. These injuries were on the head. The present case is of a brutal

attack causing multiple injuries on the head with an axe. The present

case would not fall under Section 304 Part I and the appellant has been

rightly convicted under Section 302. Section 302 IPC is attracted

when death is caused by an act done with the intention of causing death

and also when the intention is to cause a bodily injury and the said

injury inflicted is sufficient in the ordinary course to cause death (See

Abdul Waheed Khan Vs. State of A.P., (2002) 7 SCC 175 and Virsa

Singh Vs. State of Punjab, 1958 SCR 1495). PW-12, Dr. Chander

Kant, who had conducted the post mortem and given his report, has

opined and stated that the cause of death was due to shock,

haemorrhage and head injuries. The injuries were caused by a sharp