Ram Lal vs State
2013 Latest Caselaw 1881 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CRIMINAL APPEAL NO. 1317/2012

                                  Reserved on     : 17th April, 2013
%                                 Date of Decision: 26th April, 2013


RAM LAL                                              ..... Appellant
                     Through Mr. Bhupesh Narula, Advocate.

                            Versus

THE STATE                                             ..... Respondent

Through Mr. Sanjay Lao, APP for the State.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE V.P. VAISH SANJIV KHANNA, J:

1. The appellant Ram Lal impugns his conviction vide judgment dated

15th October, 2009. under Section 302 of the Indian Penal Code, 1860 (IPC)

for murder of Kalam on 6th September, 2006 at about 9.30-10.00 p.m. He

has been sentenced to life imprisonment and fine of Rs.10,000/-, which,

upon realization, is to be equally distributed amongst the family members of

the deceased.

2. There is ample evidence to show that Kalam died a homicidal death

pursuant to injuries suffered by a sharp edged weapon. Dr. Sapna (PW-3),

who was working as a Junior Resident at Safdarjung Hospital, had examined

Kalam and had prepared his MLC (Ex.PW3/A). The said MLC (Ex.PW3/A)

records that at 10.35 P.M. Kalam was brought to the hospital with alleged

history of assault and two lacerated wounds.

3. Kalam subsequently died and inquest papers were prepared. The

autopsy was conducted by Dr. Yogesh (PW-8). The post mortem report

(Ex.PW8/A) records the following two external injuries:-

"1. Stab wound vertically place 1 cm below left nipple 10 cm from middle eye of size 2.5 cm× .6 cm between found and fifth ribs going into the chest cavity, backwards and medially up to 7.5 cm, perforating lower margin of upper lobe of left lung and reaching up to left ventricle of heart with a cut of 2.5 cm × .5 cm.

2. Cut injuries present over (a). Right palm proximal to little finger of size 3×.2 cm ×.8cm(b) left middle finger middle phalanx back of size 2×.2×1 cm.(c) first web space of left hand 1×.2×1 cm."

Cause of death was opined to be shock as a result of ante mortem stab

injury to left side of the chest which perforated the left lung i.e. injury No.1.

We shall subsequently refer to the opinion given by PW-8 when we deal

with the question whether the appellant is the perpetrator, who had caused

the said injuries.

4. The deceased Kalam was taken to the hospital by Mani Lal, who has

appeared as PW-1. He has deposed that he was running a leather factory at

Kapashera and the appellant Ram Lal and deceased Kalam used to work in

his factory. On 6th September, 2006, he had came to the factory at about 6

p.m. and found that the appellant had consumed liquor. On being

questioned, the appellant informed that he had given Rs.50/- to the deceased

Kalam and had sent him to bring more liquor. As deceased did not return,

the appellant had taken umbrage. At about 9.30 p.m. both the deceased and

the appellant returned and an altercation took place between them over

Rs.50/-. PW-1 had even offered to pay the said amount to the appellant, but

he was adamant that the deceased should pay. PW-1 thereafter went to the

roof of the factory, but rushed downstairs when he heard noise/cries. There

he found that the appellant had a pair of scissors in his hands. Appellant and

deceased were grappling with each other. He intervened and separated

them. He also sustained injuries on his left hand. The deceased had

sustained injuries on his chest and was bleeding profusely. PW-1 took the

deceased to the hospital and after half an hour Kalam died. The police

reached the hospital and recorded his statement Ex.PW1/A. The appellant

had absconded and was arrested on 10th September, 2006 from ISBT Kale

Khan and his personal search (memo Ex.PW-1/G) was prepared. Munni Lal

(PW-1) was a witness to the said memo. The appellant had made disclosure

statement Ex.PW1/H and on the basis of the disclosure statement, one pair

of scissors was recovered near the boundary wall of Delhi Jal Board. He has

identified the sketch of the scissors marked Ex.PW1/J. The Investigating

Officer also seized the pant and shirt worn by the appellant vide memo

Ex.PW1/L. The said pant and shirt was identified by PW-1 as Ex. P5 and

P6, respectively. The scissors was identified by PW-1 as Ex.P4. The pant

(Ex.P3) belonging to PW-1, which was seized, was also identified by him.

5. Learned counsel for the appellant has relied upon the cross-

examination and submitted that PW-1 himself was a prime accused and the

police had grave doubts viz. PW-1‟s involvement. It is accordingly

submitted that PW-1 is not a reliable and credible witness. PW-1 in his

cross-examination has stated that he had remained with the police

throughout the night and sometimes they used to take him to the police

station and hospital. He has also stated that there were four other employees

in the police station including one Kamal, who was related to the appellant

Ram Lal. Police used to call all of them daily to the police station. He has

further deposed that he was freed from the police station after two days and

was asked to trace the appellant. He reiterated in the cross-examination that

the appellant was arrested from Saria Kale Khan on 10th September, 2006 at

about 8.00-8.30 p.m.

6. We have examined the statement made by PW-1. However, we are

inclined to accept the statement made by PW-1 as truthful, credible and one

which should be accepted. In fact, the statement made by PW-1, in the

cross-examination, that he was repeatedly asked to come to the police station

and was put under restrain, reveals that he is a truthful witness, who did not

conceal or hide any fact from the court. We do not agree with the contention

of the appellant that PW-1‟s conduct is doubtful and he can be the

perpetrator who had caused injuries on Kalam. There are several reasons for

the same. PW-1 had himself taken the deceased to the hospital. On the

basis of PW-1‟s statement (Ex.PW1/A), „rukka‟ was recorded and sent to the

police station for recording of FIR at about 1 a.m. on 7th September, 2006.

The FIR in question i.e. FIR No. 308/2006 was registered under Section 302

IPC vide DD No.2A at 2 a.m. on 7th September, 2006. Copy of the said FIR

(Ex.PW10/A) was received by the concerned Metropolitan Magistrate on 7th

September, 2006 at about 10 a.m. In the "rukka" and the FIR, name of the

appellant Ram Lal is clearly mentioned. He has been described as a

perpetrator of the crime. Mani Lal (PW-1) himself was slightly injured and

Dr. Sapna (PW-3) in her deposition has testified that Dr. Vipin Kumar had

prepared the MLC of Mani Lal dated 7th September, 2006 marked

(Ex.PW3/B). In addition to the said MLC, we have also on record the OPD

card of Mani Lal (PW-1). In the case history or the brief facts, which were

sent along with the inquest report, name of the appellant is mentioned.

7. The appellant in his statement, recorded under Section 313 Code of

Criminal Procedure, 1973 (Cr.P.C.), has accepted that he and the deceased

Kalam were working in the factory of PW-1. On the question of arrest on

10th September, 2006, he has stated that this was incorrect and Mani Lal

(PW-1) and other police officials called him from Mathura and had falsely

implicated him in the present case. He has further stated that nothing was

recovered from him or at his instance and the police had obtained his

signature on blank papers while he was in police custody.

8. The appellant was arrested on 10th September, 2006 and, as per the

prosecution case, he thereafter had made the disclosure statement Ex.PW1/4.

The scissors (Ex.P4) was recovered. This fact is deposed by Mani Lal (PW-

1) as well as by SI Mahesh Soni (PW-7). The scissors was recovered near

the boundary wall of Delhi Jal Board. PW-7 prepared sketch (Ex.PW1/J) of

the scissors and had also seized the same vide memo Ex.PW1/K.

9. PW-7 had also seized the pant and shirt of the appellant, which he

was wearing at the time of occurrence, vide memo Ex.PW1/L. He was

wearing the same clothes as per the police version at the time of arrest.

Similar statement has been made by Constable Ram Mehar (PW-5).

However, we are inclined to discard the evidence with regard to the seizure

of the blood stained pant and shirt as it is highly improbable that the

appellant would have worn the same clothes even after four days of the

occurrence, when he returned to Delhi and was arrested.

10. As noticed above, the appellant has not disputed his arrest on 10th

September, 2006, though he has claimed that he was called from Mathura

and thereafter arrested. The scissors was shown to Dr. Yogesh (PW-8) and

he opined in his subsequent opinion dated 27th November, 2006 (Ex.PW8/B)

that the injuries on the chest of the deceased was possible by the scissors

examined by him. He had also prepared the sketch of the said scissors

marked Ex.PW8/C. At this stage, we may note that the FSL report (Ex.PX-

PY) records that blood was detected on the scissors, but the blood group

could not be ascertained.

11. The appellant had examined four witnesses in his defense. Kamal

Singh (DW-1) has stated that on the date of occurrence at night police had

knocked at his door and then he came to know about the death of Kalam.

Thereafter, they took him, PW-1 and some others and confined them for

three days. They all went to Mathura as police wanted to implicate

someone. They picked the appellant from Mathura and handed over him to

Delhi Police. In the cross-examination he has accepted that these facts were

being disclosed for the first time before the Court and he had not made any

complaint to the police officers or senior police officers. It is claimed that

these facts were not disclosed because of fear. He has deposed as incorrect,

the suggestion give by the Additional Public Prosecutor that PW-1 had

committed murder of Kalam. As recorded, the appellant was named as the

perpetrator of the crime/injury in the FIR itself. Thus, the question of police

wanting to implicate and arrest „anyone" does not arise.

12. Mahavir Singh (DW-1A) has stated that he did not know anything

about the case, but he had worked in the factory of PW-1. PW-1 had two

factories in the same compound but they were separated by a wall. The

appellant and DW-1A were working in the same factory, but the deceased

Kalam was working in a different factory. He has accepted as correct that

he was not present and had left the factory at about 8 p.m. on the date of

occurrence. Manik Chand (DW-2) has deposed on the similar lines as DW-1

and DW-1A that he did not know anything about the case and has accepted

that at the time of occurrence he was not present. Kamal Singh (DW-3)

again has deposed on the similar lines as DW-1, DW-1A and DW-2 and has

accepted that at the time of occurrence he was not present in the factory.

DW-3 has deposed that he had never worked in the factory of PW-1 and has

stated that the deceased was working with Manik Chand in a different

factory. (we hope and trust that DW1 and DW3 are different persons).

13. The statement of the defense witnesses do not cast or create any

predilection or doubt about the prosecution case and involvement of the

appellant as the perpetrator, who had caused the injuries to Kalam. The

appellant has in his statement under Section 313 Cr.P.C. accepted as correct

that he and the deceased Kalam were employees working in the factory of

PW-1. Statements of the defense witnesses that the appellant was not an

employee of PW-1 are clearly false and dubious assertions.

14. The next question, which arises for consideration, is whether the

appellant has been rightly convicted under Section 302 IPC and whether the

Exception 4 to Section 300 is applicable to the facts of the present case.

From the deposition of PW-1, the sole eye witness to the occurrence, it is

clear that the appellant and deceased had consumed alcohol. Smell of

alcohol is confirmed in the MLC (Ex.PW3/A) of the deceased. The

deposition of PW-1 in the Court is somewhat at the variance to the first

statement (Ex.PW1/A) made by him to the police. In the statement

Ex.PW1/A it was stated that on 6th September, 2006 at about 9.30 p.m. he

had gone to the terrace to have food when he heard abuses and came down.

There he had found that the appellant and the deceased were fighting with

each other and the appellant was demanding that the deceased should return

Rs.50/- because he had not brought liquor. PW-1 tried to intervene and

separate them. He had tried to pacify by even offering to immediately pay

Rs.50/- and would deduct the said amount from the salary payable to the

deceased. This had happened in the passage in front of the factory. Upon

this, the deceased started walking out of the factory. At that moment, the

appellant who was behind him, suddenly took out 10 inches scissors

commonly used for cutting at the factory, and hit the deceased on his chest.

PW-1, in the court, has deposed to the effect that, at about 9.30 P.M., the

deceased and the appellant had a quarrel but he intervened and pacified

them. Thereafter, he went to the roof of the factory but rushed down when

he heard noises. There he found the appellant was having scissors in his

hand and the deceased had sustained injuries on the chest. Both of them had

grappled and he had to intervene to separate them.

15. The scissors in question is used by tailors and would have been easily

available in the factory or with the appellant, since he was a tailor by

occupation and worked in a factory where leather goods were manufactured.

Both the appellant and deceased were inebriated and had consumed

considerable amount of liquor. There were certainly heated arguments as

the deceased had taken Rs.50/- from the appellant and had not brought

liquor, which the appellant wanted to consume.

16. It is apparent that the quarrel had taken place between 9.30 p.m.-10

pm on 6th September, 2006 and by about 10.35 P.M. Kalam had been taken

to the hospital as per the MLC Ex.PW3/A. As the appellant had caused

injuries resulting in death of Kalam, we have to take the statement of PW-1

on the appellant‟s conduct in the quarrel with some reservation as there

could be some element of exaggeration or overemphasis as to the wrongful

act and culpability of the appellant viz. Kalam. In the preceding paragraph,

we have brought out the difference between the two versions, Ex.PW1/A,

which formed the "rukka" and the statement of PW-1 recorded in the Court.

In the court testimony PW-1 has stated that when he came down the scissors

in the appellant‟s hands was visible and that the deceased had inflicted

injuries on the appellant‟s chest. He did not actually see how and from

where the appellant had got hold of the scissors and how the verbal quarrel

had turned into a physical one. He was not privy to the whole altercation

and was certainly not present when the arguments escalated and the injury

was caused. We cannot say with full conviction who had first picked up the

scissors or had tried to hit the other person physically. In these

circumstances, we feel that the case is one of sudden fight and falls within

the parameters of the fourth exception to Section 300 IPC. It is apparent that

both the appellant and Kalam were friends and had drinks together. There

was a quarrel on a trivial issue of Rs.50/- as Kalam had taken the money

from the appellant, but had not brought the liquor, as the deceased expected.

There is a doubt whether the appellant was the first to physically assault the

deceased. The weapon i.e. the scissors was available in the factory as it is an

implement and tool used by the workers and was not specially procured to

commit the said crime. In all probability it was picked up from the spot

itself.

17. In these circumstances, we give benefit of doubt to the appellant and

hold that he did not take undue advantage and/or had not acted in a cruel or

gruesome manner in the absence of any direct or other evidence to show

what actually transpired after the altercation took an ugly turn, while PW-1

had gone to the roof/terrace to have food. The fact that PW-1 had gone to

the terrace to have food shows that he had no cause to fear that there could

be such grave consequences of the fight or the fight would escalate. When

the quarrel exacerbated PW-1 was upstairs and there is no account of what

actually transpired, in that interim period. It is pertinent to mention that only

one injury was caused, though it was inflicted on a vital part. PW-1 has

averred that the deceased had initially walked into the hospital and was

conscious, but subsequently he vomited and expired within half an hour.

Looking at the totality of these circumstances, we convert the conviction of

the appellant from Section 302 IPC to Section 304, Part I IPC.

18. The next question relates to the quantum of sentence. Keeping in

view the injuries caused, the trivial issue on which the quarrel had taken

place and the initial attempt made by PW-1 to pacify, we feel that the

appellant should be sentenced to Rigorous Imprisonment for a period of 12

years with fine of Rs.10,000/-. In default of payment of fine, he shall

undergo Simple Imprisonment for a further period of 4 months. We are not

inclined to reduce or give lesser punishment to the appellant, in the present

case, keeping in view that the injury was caused at the vital part of the body

i.e. the chest with a pair of scissors.

19. Accordingly, the appeal is partly allowed. Conviction of the

appellant is converted from Section 302 IPC to Section 304, Part I IPC. The

sentence is altered to Rigorous Imprisonment for a period of 12 years and

fine of Rs.10,000/- with stipulation that in case of default or failure to pay

the fine, the appellant shall undergo Simple Imprisonment for a period of 4

months. Fine, if collected, shall be paid to the legal heirs of the deceased

Kalam.

-sd-

(SANJIV KHANNA) JUDGE

-sd-

(V.P. VAISH) JUDGE APRIL 26, 2013 NA