Satinder Kumar vs State
2012 Latest Caselaw 3440 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Reserved on : 13.04.2012
                                                Decided on : 23.05.2012

+                                CRL.A. 408/1997

        SATINDER KUMAR                      ..... Appellant
                    Through : Sh. C.S. Rathore, Advocate.

                                       versus

        STATE                                    ..... Respondent

Through : Ms. Richa Kapoor, APP.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE S.P.GARG

MR. JUSTICE S.RAVINDRA BHAT

%

1. This appeal is directed against a judgment and order of the learned Additional Sessions Judge, Delhi, dated 20.10.1997 and 21.10.1997 respectively, in SC No. 119-A/96 whereby Satinder Kumar (hereafter called "the appellant") was convicted for the offence punishable under Section 302 IPC and sentenced to undergo life imprisonment, and other sentences.

2. The brief facts of the prosecution case are that on 29.01.1995, PW-11 Inspector O.D. Yadav received message, recorded a daily diary entry (D.D. NO.47B) and later went to Village Saboli at about 5.30 PM with members of his staff, to Khubi Singh's house. Other police men were there. The information received was about a fight; he saw the blood lying in the gali

Crl.A. No.408/1997 Page 1 near Khubi Singh's house. He also learned that the injured, Khubi Singh was taken to the hospital. Saroj Devi, the wife of the deceased met him at her house and gave her statement about the incident. It was alleged that on 28.01.1995 at about 04.45 PM, the Appellant went to her house and called out to Khubi Singh. He used to quarrel with her husband. She too went near the main gate of her house. She saw that the appellant was quarreling in a loud voice with her husband at the corner of the gali. He stabbed her husband with a knife which he had with him. The deceased was stabbed on the left side of his chest. After sustaining injuries, her husband fell down; Satinder fled from the spot. PW-11 recorded the statement, Ex.PW4/A and gave his endorsement, Ex.PW11/A below it. S.I. Gajraj Singh brought the MLC of Khubi Singh. He forwarded the statement, Ex.PW4/A for registration of FIR.

3. Saroj Devi pointed out the place of incident and on her pointing out, he prepared rough site plan. Public witnesses Ashok Kumar and Zile Singh also came there and he recorded their statements. Om Parkash photographer came at the spot who took the photographs at the place of incident at his instance. He also seized blood stained earth, blood and earth control sample from the place of incident. Seal after use was handed over to S.I. Gajraj Singh. He also recorded the supplementary statement of Saroj Devi while preparing the rough sketch, at her instance and then went in search of the Appellant Satinder. He was later arrested.

4. After conclusion of investigation, the appellant was charged with the commission of the offence. He denied involvement, and claimed trial. During the course of proceedings, the prosecution relied on the testimony of several prosecution witnesses, and also brought on record documentary

Crl.A. No.408/1997 Page 2 evidence. After an overall consideration of all these, the Trial Court convicted the appellant, for the offences, he was charged with.

5. The Trial Court relied on the testimony of Saroj Devi, PW-4, and held that she witnessed the incident and that her statement was recorded at the earliest opportunity. It was also held that the Appellant's arrest and disclosure statement led to the recovery of incriminating articles, including the knife.

6. Counsel for the Appellant contended that PW-1, the deceased's brother did not support the prosecution case. He also argued that public witnesses examined by the prosecution, i.e PW-2 Zile Singh and PW-3 Ashok Kumar turned hostile and did not support the prosecution version. In these circumstances, it was hazardous on the part of the Court to base its conviction relying only on the sole testimony of a so-called eye witness, despite such person being an interested witness (being a relative of the deceased). The appellant was clearly entitled to the benefit of doubt, and required to be acquitted.

7. It was next argued that the prosecution examined only one witness PW4, the deceased's wife. Being an interested witness, her statement cannot be treated as trustworthy and reliable without corroboration from independent witnesses. Her testimony was not corroborated by other witnesses; also the prosecution did not examine any independent public witness. Furthermore, she did not accompany the deceased to the hospital, which was a completely unnatural conduct. In the circumstances, having regard to the fact that other witnesses whom the prosecution claimed to be

Crl.A. No.408/1997 Page 3 eyewitnesses, did not support her statement, the statement of PW4 could not be believed.

8. The appellant's counsel further urged that though the incident took place on 28.1.95, yet inquest proceedings were conducted by the I.O. only on 30.1.95. No explanation was given by the I.O. for not conducting inquest proceedings on 28.1.95 or 29.1.95 which revealed that no eye witness was present for the I.O. to record the statement from. This also proved that the police waited for Smt. Saroj Devi PW-4 to come from the village, and introduce her as an eye witness. Initially there was no one who claimed to be an eye witness. It was also contended that a copy of the FIR was not sent to the Learned Metropolitan Magistrate (M.M) and to the Senior Officers immediately after recording of the FIR due to which the M.M. neither put a date or any time on the FIR about when it was received by him. This also showed that the FIR was registered only on 30.1.95 and only thereafter was it sent to the magistrate, who was asked by the SHO not to put the date and time. The FIR was clearly ante dated and ante-timed. This benefit should enure to the Appellant who should be acquitted.

9. Counsel for the Appellant further urged that the IO did not join any public person at the time of arrest and recovery of weapon of offence from the Appellant and the statements of police officials on the point of arrest of the Appellant and the recovery of knife at his instance cannot be believed to be trustworthy as the same have not been corroborated by any independent public witness and the same is liable to be rejected and it should be held that the Appellant was not arrested and no recovery of weapon of offence was affected at the instance of the Appellant. The only public witness introduced

Crl.A. No.408/1997 Page 4 by the police was the brother of the deceased Sahab Singh PW1 who turned hostile and he did not support the case of the prosecution on the point of arrest of the Appellant and on the point of recovery of knife at his instance. He has further submitted that the other witness included at the time of arrest of the Appellant and recovery of weapon of offence is Const. Ishwar Singh PW9; however, the witness, PW9 Const Ishwar Singh was on roznamcha duty on 5.2.95 so the contention that he was present at the time of arrest of the Appellant and recovery of the knife was utterly untrue and the benefit of this major contradiction should be given to the Appellant who should be acquitted. Counsel for the Appellant further submitted that no blood group was found on the knife. The knife therefore could not be connected with the commission of crime and benefit of this discrepancy should be given to the Appellant. It was further submitted that the place of recovery of knife is an Electric Sub-Station which is a public thoroughfare and the recovery, thus, is no recovery in the eyes of law.

10. It was also argued that the ocular evidence does not find corroboration from the medical evidence. He has stated that PW4 Smt. Saroj deposed before the Court that her husband was given only one stab blow by the Appellant while Dr. A.K. Tyagi PW7 who conducted the post mortem of the dead body of Khoobi Singh has deposed before the Court that the deceased had received two stab injuries on his person which further shows that Smt. Saroj Devi was not present at the time of incident and the ocular evidence of Smt. Saroj Devi does not find corroboration from the medical evidence and her statement should be rejected out-right and the Appellant should be acquitted. He further submitted that PW17 H.C. Suraj Bhan who recorded

Crl.A. No.408/1997 Page 5 the D.D. No. 9A of Kaimi Mukadma did not give the gist of the FIR in the said D.D. which is a serious lapse on the part of the police.

11. On behalf of the state, the learned APP opposed the arguments advanced by the Appellant and submitted that when the police reached the spot they found Smt. Saroj Devi PW4 wife of the deceased at the spot and her statement was recorded by the IO and the rukka was sent from the spot on the basis of which FIR was registered. Smt. Saroj Devi who is the only witness to the occurrence has fully supported the case of the prosecution and has stated before the Court that Appellant Satinder is the assailant of her husband and he stabbed her husband as a result of which he died. All the remaining witnesses have also supported the case of the prosecution. The prosecution has successfully proved its case against the Appellant beyond reasonable doubt. The Appellant should be punished according to law.

12. There is no dispute that the death of Khubi Singh in this case was homicidal. The medical evidence suggests that the death was the result of two knife injuries, placed immediately adjacent to each other. The prosecution alleged that the homicidal attack was by the appellant, whom the deceased knew. The deceased's brother knew the accused, and even though he did not support the prosecution version, during the trial, he deposed that both the deceased and the accused knew each other, and lived in the same neighbourhood.

13. PW1, Sahib Singh deposed that deceased Khubi Singh was his brother. He was informed about his death on 29.1.95 in Aligarh U.P. in the evening. He had identified his dead body in the inquest proceedings by his statement Ex.PW1/A. The dead body was taken by him. The Appellant was

Crl.A. No.408/1997 Page 6 known to him as he had been visiting the deceased; the Appellant was the deceased's neighbor, living opposite to his house. He deposed that the Appellant was not arrested by the police in his presence; he denied the appellant's interrogation by the police in his presence. The appellant did not make any disclosure statement in his presence nor pointed out the place which led to recovery of the knife, by the police, in his presence. The witness was declared hostile and cross examined by the prosecution.

14. PW2 Zile Singh deposed that he was running a shop at his residence. He knew the deceased, his neighbour who died more than a year ago. He was murdered near a shop of Dhobi at main road Saboli which was made of bricks. They heard the noise from the public that Khubi Singh had been stabbed. He informed the police on telephone and then he went to the spot. Khubi Singh was bleeding and lying unconscious. He had a stab injury on the right side of his chest and on the back. Police arrived at the spot, lifted the blood and earth control from the spot and sealed in separate small bottle. Some people from public were telling that deceased had been stabbed by Satinder. He know the Appellant Satinder, being their neighbour. Blood etc. were taken into possession. He did not find Smt. Saroj, the wife of the deceased at the place of incident; she was not there. This witness was also declared hostile by the prosecution as he did not support its case. He was cross examined; even in the cross examination he did not support the prosecution case.

15. PW-3 Ashok Kumar deposed that he knew the deceased and the Appellant; both were his neighbors. Khubi Singh died on 28.1.95. He did not know the manner of his death or anything about the occurrence. He had seen the deceased in dead condition bleeding profusely. The police was also

Crl.A. No.408/1997 Page 7 there. He did not know as to with what injury the deceased had died. The police had seized from the spot the blood and earth control after putting in parcel and sealing. Khubi Singh's wife Saroj did not meet him there. She did not tell him that Appellant had killed the deceased. This witness was also declared hostile by the prosecution and was cross examined. Even during the cross examination he did not support the case of the prosecution at all.

16. PW4 Smt. Saroj was by far the most important prosecution witness. She stated before the Court that she knew the Appellant Satinder as he has been living in her neighborhood. On 28.1.95 at about 4.45 PM., she was present near a drain (nali) under construction in the gali and her husband Khoobi Singh was standing at the corner of the main gali. The Appellant had called her husband from their house about 20 minutes prior to the time of incident, asking him to go there. The Appellant was talking with her husband at the corner of the gali and he was saying loudly to her husband "Chamar ke Tujhe Jaan Se Maar Doonga". Her husband thereupon with folded hands told the Appellant that "Maarley Main Tera Chhota Bhai Hoon, Maine Kya Kasoor Kiya Hai" (Kill me, I am your younger brother; what is my fault?"). Thereafter the Appellant took out a knife from his pocket and stabbed her husband on the left side of his chest. After getting stabbed by Appellant, her husband fell down on his back. Several persons had witnessed this incident. After some time, police came to the spot and took her husband to the hospital and the police made enquiries from her as to how it all had happened and the police recorded here statement which is Ex. PW-4/A. She had stated to the police how the incident had taken place. Her husband had died at the spot.

Crl.A. No.408/1997 Page 8

17. PW7 is Dr. A.K. Tyagi conducted the post mortem examination on Khoobi Singh's body on 30.1.95. According to his opinion, death was due to shock as a result of haemorrhage caused by injury to the heart. The injuries were ante-mortem and caused by sharp single edged cutting/stabbing weapon and were sufficient to cause death in the ordinary course of nature. The witness after seeing the knife Ex.P-1 stated that the possibility of the injury on the person of the deceased cannot be ruled out.

18. The materials on record show that according to PW-4, the attack took place at 4:45 PM on the day of the incident. The police reached the spot at 5:30, according to PW-11. The police had received intimation at 5:05 PM, (DD No. 13, Ex. PW-19/A). The eyewitnesses relied on by the prosecution, PW-1, the deceased's brother, turned completely hostile; beyond admitting that the appellant lived in the neighbourhood and had interactions with the deceased, he did not support the prosecution case at all. The FIR in this case (Ex. PW-DA) was registered at 7:00 PM; it is based entirely on the statement of Saroj Devi (PW-4/A). The entries in the register (Road Certificate) at P.S. Nand Nagri, produced as Ex. PW-17/A, Ex. PW-17/C and Ex. PW-17/D reveal that the special report, in terms of Section 157 Cr. PC, i.e. a copy of the FIR was dispatched through a motorcycle rider at 7:40 PM; that motorcyclist reported back at 2:30 AM next morning. At the same time, the death report was prepared in the morning of 30-1-1995; the same day, at around 10-35 AM, the request for post mortem was made. Though the prosecution would have been under a duty to explain these, two factors, i.e. the entries in the Malkhana Register, mentioned above, and the time of death, recorded in the application for post-mortem examination, i.e. 5:35

Crl.A. No.408/1997 Page 9 PM, when the body was taken to the hospital, reassure that the scope for manipulation in this case was minimal, because the statement PW-4/A and FIR were recorded within two hours of the incident.

19. Now it is well established that a conviction can be based on a single eyewitness testimony; in this context, in Anil Phuken v State of Assam AIR 1993 SC 1462, it was held that:

"..Indeed, conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye-witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then, the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect."

As far as the circumstance that PW-4 was the deceased's wife, and therefore, the Court should have looked at other supporting evidence to return a conviction is concerned, there is no universal norm that witnesses who testify in a trial, and are relatives of the victim of the crime, should be subjected to a higher standard of scrutiny. If they are natural witnesses, the court would examine their testimonies in the light of all the circumstances. In the absence of special features about the deceased or victim's peculiar relationship (or with the witness) is shown during the trial, which would put

Crl.A. No.408/1997 Page 10 the court on guard, just the fact that the witnesses are related to the victim is not relevant.

20. In Lehna vs. State of Haryana, (2002) 3 SCC 76, the Supreme Court while rejecting a similar contention by the convicted accused, in respect of the deceased's relatives' testimony held that even if there was some hostility between the accused and the family members of the deceased (who had deposed against the accused during the trial) that would not be a ground to reject their deposition since it is inconceivable that they would shield the actual culprit and falsely implicate an innocent person. Similarly, in Ashok Kumar Chaudhary v State of Bihar 2008 (114) Cr. LJ 3030 (SC), reviewing the previous law, held that:

"In Dalip Singh v. State of Punjab, AIR 1953 SC 364 this Court had the occasion to deal with the question as to whether a relative is per se an "interested" witness. Dispelling the general impression that relatives were not independent witnesses, speaking for the Court, Vivian Bose, J., observed thus :

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."

Crl.A. No.408/1997 Page 11

21. The testimony of PW-4 is consistent, about the facts surrounding the attack, as well as the identity of the assailant. However, a close scrutiny of Ex.PW-4/A would reveal that in the earliest account recorded by the police, she did not mention anything about the abuse, by the appellant, or the words used by the deceased and the appellant. However, in her Court deposition, she made an improvement; she said that the appellant abused the deceased, saying "Chamar ke Tujhe Jaan Se Maar Doonga". She deposed in the trial that her husband, with folded hands told the Appellant that "Maarley Main Tera Chhota Bhai Hoon, Maine Kya Kasoor Kiya Hai" (Kill me, I am your younger brother; what is my fault?"). These are clear improvements. Further, in the statement Ex. PW-4/A the witness said that the appellant used to quarrel with the deceased about the place where the latter used to park his vehicle. On the day of the incident, he was quarreling, and later attacked the deceased, with a knife. These improvements, in our opinion are significant.

They point to the fact that some differences between the appellant and the deceased had existed; on the day of the incident, the appellant was quarreling with the deceased, and in the course of the altercation, he stabbed him.

22. According to PW7, who conducted the post mortem examination of the deceased's body on 30.1.95, death was due to shock as a result of haemorrhage caused by injury to the heart. In the post mortem report, he clarified that even though it appeared that there were two injuries, there was really one, an incised, 3.2 x 2.0 cm cavity wound, which went obliquely downwards, entered the left chest cavity, entering the right ventricle of the heart. The total length of the knife used, and recovered by memo Ex. PW-

Crl.A. No.408/1997 Page 12 1/E, was 32 cm; (its blade was 14.5 cm in length and the hilt was 17.5 cm long).

23. The above discussion of the evidence, in this Court's opinion leaves no room for doubt that the appellant was responsible for the homicidal attack. The question however, is whether he was guilty of murder punishable under Section 302 IPC, or some other offence. Exception 4 of Section 300, IPC, reads as under:-

"300, Murder.-

Exception 1. - xxxx xxxx xxxx xxxx

Exception 2. - xxxx xxxx xxxx xxxx

Exception 3. - xxxx xxxx xxxx xxxx

Exception 4. - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.

Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault."

24. It is clear from the testimonies of PWs 4, and 1 that there was no previous animosity between the Appellant and deceased. Both were living in the same neighborhood. There was no complaint about the Appellant's conduct and behavior at any time by the deceased or his family members. There is nothing on record if at any time prior to the occurrence, any serious quarrel took place between the two; there were irritants and altercations. Even on the date of incident, initially there was no hostility between the two.

Crl.A. No.408/1997 Page 13 During their conversation, a sudden quarrel took place; the Appellant got enraged and attacked the deceased. The incident took place without premeditation. The time gap between the normal conversation and the altercation resulting in the attack, was a few minutes. This clearly indicates that it was a sudden fight and there was no time for tempers to have cooled so as to allow in the concept of premeditation. We see no evidence that Appellant had taken undue advantage or acted in a cruel or unusual manner. The Appellant had taken out his knife and stabbed the deceased in a fit of rage. In Golla Yelugu Govindu v.State of Andhra Pradesh (2008) 16 SCC 769, at about 2:00 A.M. when the deceased was in the house there was exchange of hot words and quarrel between the accused and the deceased. This happened in the presence of the children. Suddenly the accused hacked the deceased in the neck with a sickle and the deceased fell down and the accused once again hacked on the neck and left ear of the deceased causing severe bleeding injuries. It resulted in the death of the lady. The Appellant therein submitted that Section 302 IPC had no application to the assault made during the course of a sudden quarrel and Exception 4 of Section 300, IPC applied. The Supreme Court, after discussing the law in detail converted the conviction to one under Section 304 Part 1 IPC.

25. The distinction between culpable homicide and murder was aptly drawn by the Supreme Court in Kandaswamy v. State of Tamil Nadu (2008) 11 SCC 97. It was held that:

"XXXXXX XXXXXX XXXXXX

whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to

Crl.A. No.408/1997 Page 14 Crl.A No.467/1997 Page 12 of 17 murder,' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section299. If the answer to this question is prima jade found in the affirmative, the stage for considering the operation of Section300, Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section304, depending, respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Penal Code.

XXXXXX XXXXXX XXXXXX"

26. In Preetam Singh v. State of Rajasthan, (2003) 12 SCC 594, it was held that:

"XXXXXX XXXXXX XXXXXX

20. In the present case, there are three head injuries, two on the scalp and one on the left parietal region. The first two injuries are, undoubtedly, fatal injuries. As a result of those injuries, multiple fractures of the right parietal bone occurred, the membranes got severed and there was injury to the brain matter. As regards the third injury, which is an incised wound of 2? × 1? on the left parietal region, it cannot be said for

Crl.A. No.408/1997 Page 15 certain that in the ordinary course it would have caused death. The medical evidence is silent on this aspect. The doctor did not Crl.A. No.467/1997 Page 13 of 17 even say what impact this third injury had internally. All the three appellants inflicted injuries on the head of the deceased with the weapons in their hands according to the prosecution witnesses. There is an allegation that after the deceased fell down all the three went on giving blows on the leg and waist. Certain injuries were found on the knee joint, elbow joint and left forearm of the deceased....

XXXXXX XXXXXX XXXXXX

...intention that can be safely imputed to Appellants 1 to 3 o 3 was to cause bodily injuries to Pyara Singh which were likely to cause death. It is this common intention which, in our view, had developed on the spot. Therefore, the offence committed by Appellants 1 to 3 would be culpable homicide not amounting to murder and they are liable to be convicted and punished under Section 304 (Part I). They are also liable to be convicted under Section 148 IPC for the offence of rioting. On the basis of the evidence on record and the findings recorded by the High Court, there is no escape from the conclusion that the appellants were members of an unlawful assembly of five or more persons having the common object falling within the scope of clause (iii) of Section 141, though the common object was not to kill or hurt the deceased person.

XXXXXX XXXXXX XXXXXX"

27. On an application of the law declared by the Supreme Court, this Court hereby convicts the Appellant under Section 304 (Part I), IPC. The conviction under Section 302 IPC is set aside. Coming to the question of sentence, we are of opinion that the appellant a policeman, ought to have been in his senses. Although he was on bail for all these years, the fact remained that he kept a knife, and wielded it, on the deceased, when he least not expect it. This Court, therefore, sentences him to undergo imprisonment

Crl.A. No.408/1997 Page 16 for a period of nine years. The appellant shall be entitled to the benefit of Section 428 CrPC, and set off the period of sentence undergone after his conviction. The appellant shall surrender to serve the remainder of his sentence before the Trial Court, on 28-05-2012; the Registry is directed to transmit the records forthwith to the said Trial Court. The appeal, Crl. A. 408/1997 is disposed of in terms of the above directions.

S. RAVINDRA BHAT (JUDGE)

S.P. GARG (JUDGE)

MAY 23, 2012

Crl.A. No.408/1997 Page 17