Vijay Bahadur vs State (N.C.T.) Of Delhi
2013 Latest Caselaw 737 Del

6
*          IN THE HIGH COURT OF DELHI AT NEW DELHI

       +       CRL.A. 826/2010 & Crl.M.(Bail)No.1005/2012

%                             Date of decision : 14th February, 2013

       VIJAY BAHADUR                        ..... Appellant
                   Through :            Ms. Charu Verma, Adv.

                     versus

       STATE (N.C.T.) OF DELHI               ..... Respondent
                       Through :        Ms. Ritu Gauba, APP.

        CORAM:
        HON'BLE MS. JUSTICE GITA MITTAL
        HON'BLE MR. JUSTICE J.R. MIDHA

GITA MITTAL, J. (Oral)

Crl.M.(Bail)No.1005/2012 We are of the view that the appeal deserves to be taken up for consideration.

Accordingly, the appeal is taken up for consideration and this application is dismissed.

CRL.A.No.826/2010

1. The appellant before us has challenged the judgment dated 15th February, 2010 whereby the appellant was convicted for commission of offence under Section 302 of the Indian Penal Code and the order of sentence dated 18th February, 2010 whereby the appellant was sentenced to undergo a rigorous imprisonment for life with fine of Rs.3,000/- in default of payment of which, he was

required to undergo six months rigorous imprisonment. The case of the prosecution before the trial court was that on the night intervening 10th/11th September, 2005 at about 12:00 am, the accused Vijay Bahadur was indulging in a drinking session with the deceased - Dalip in his tenanted room at C-102/103, J.J. Colony, Madipur, Delhi. He was joined in this bout of drinking by his father-in-law - Shri Lal Bahadur.

2. It is in evidence that the accused was residing in the said premises along with his wife and children.

3. As per the prosecution, at about 10:30 pm, PW-2 - Prem Singh, brother-in-law of the deceased went to call him to eat his dinner. PW-2 - Prem Singh has stated in the witness box that the deceased told him that he would eat later. About one and a half hours later, PW-2 - Prem Singh heard three persons fighting with each other and that they proceeded to the terrace from the room where they were drinking. PW-2 has claimed that he heard noise and shout of the accused. When he came out of the room, he saw the accused coming from the roof and the accused stated to him "maine Dalip ka kaam tamam kar diya hai aur ek or karoonga". PW-2 has stated that when he proceeded to the roof, he saw the deceased lying in a bloodied condition on the roof of the premises.

4. The police has claimed to have recovered a blood stained dagger on 11th November, 2005 from the "taand" from the room of the appellant - Vijay Bahadur. As per PW-13 - Inspector Ramesh Chander, a sketch - Ex.PW2/C was prepared of the dagger which was seized vide seizure memo - Ex.PW2/D.

5. The appellant was arrested on 11th November, 2005. It is claimed that he made a disclosure statement - Ex.PW5/C and got recovered his blood stained shirt from a yellow colour polythene bag which was kept in a hollow in the stem of a tree near house no.C-102/103, J.J. Colony, Madipur.

6. A chargesheet was filed by the police on completion of the investigation on 9th December, 2005 and vide the order passed on 25th September, 2006, the appellant was arrayed to stand trial for commission of an offence under Section 302 of the IPC. The prosecution examined 16 witnesses in support of their case. Before this court, both the parties have drawn our attention to the testimony of PW-1 - Dr. Binay Kumar who recorded the MLC; PW-2 - Prem Singh (brother-in-law of the deceased); PW-3 - Dr. Manoj Dhingra who had conducted the post-mortem on the dead body of the deceased; PW-4 - Lal Singh (brother of the deceased); PW-13 - Inspector Ramesh Chander (Investigating Officer); PW- 15 -Shashi Bala, Sr. Scientific Assistant who has proved the forensic examination from the samples; PW-16 - S.I. Jai Narain who was assigned the investigation of the case originally.

7. PW-2 has explained that he got so flustered when he saw the condition of the deceased that he immediately ran to the house of PW-4 - Lal Singh (brother of the deceased) to inform him about the incident and returned with him to the spot. The deceased is stated to have been in an unconscious condition when PW-2 left him on the roof and found him in the same condition when he

returned with his brother. It is in evidence that PW-4 - Lal Singh had made the call to the Police Control Room.

8. The prosecution has contended that at about 12:45 am on the 11th of September 2005, a call was received by the Police Control Room with regard to the fight. The said information was recorded as DD No.3 (Ex.PW8/A) by the police station Punjabi Bagh, Delhi. A perusal thereof would show that the police was informed of an accident of knife stabbing in a fight as taken place in the house no.C-102, J.J. Colony, Madipur (near Shiv Mandir). The police proceeded to the spot.

9. So far as the fate of the deceased - Dalip is concerned, we find that the prosecution did not examine ASI R.P. Shukla who as per the MLC No.003156 - Ex.PW1/A of the deceased took the deceased to the Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi. As per this MLC, the deceased was examined in the hospital at about 2:30 am when the deceased was declared brought dead. The MLC has noted one injury on the deceased which was one "punctured wound over the left lateral side (Ant part) of chest". The post-mortem - Ex.PW3/A was conducted on the body of the deceased on the 12th of September 2005 which confirmed the same injury. The doctor who conducted the post-mortem on the body of the deceased opined the cause of death as cardiogenic shock as a result of stab injury. It was also opined that the injury was sufficient to cause death in the ordinary course of nature.

10. The seized knife and recovered clothes were sent for forensic examination to the Forensic Science Laboratory, Sector-14, Madhuban Chown, Rohini, Delhi-110085. As per the forensic report dated 31st May, 2006 - Ex.PW13/E, the laboratory had confirmed human blood of „O‟ Group on the shirt and human blood of „O‟ Group on the knife. Unfortunately, the prosecution failed to lead any evidence with regard to the blood group of the deceased to connect the blood stains on the knife or the shirt with the blood of the deceased.

11. Be that as it may, so far as the challenge to the judgment of the trial court is concerned, the same rests primarily on the submission by learned counsel for the appellant to the effect that PW-2 - Prem Singh is not reliable given the manner in which he has acted himself after he saw the condition of his deceased brother-in-law. It is submitted at great length that the conduct of the PW-2 was most unnatural and it is unbelievable that he was ready to leave his injured and unconscious relative without taking steps for removing him to the hospital and instantly rushed to the house of the brother of the injured instead of proceeding for instantaneous medical assistance.

12. It is trite that the reaction to a situation of violence varies from person to person. It is conceivable that a person would get so shocked and traumatized that he may not first look for medical assistance in a condition of violence but may reach out to a relative. We are not inclined to disbelieve the testimony of PW-2 - Prem Singh on the sole ground that he did not report the incident

immediately or that he did not rush with the appellant to the hospital. The evidence on record would show that the brother of the deceased was residing in the immediate vicinity of the place of occurrence and was at the spot within a short period of the occurrence and information was given to the police immediately thereafter.

13. Ms. Charu Verma, learned counsel for the appellant has pointed out that both the recoveries are shrouded in doubt inasmuch as Inspector Ramesh Chander has claimed that the knife was seized from an open room. The police witness has stated that the wife of the appellant as well as his children were present.

14. Ms. Charu Verma, learned counsel for the appellant has also challenged the recovery of the knife for the reason that the recovery was from an open room and that the signatures of the wife or any other public person had not been taken thereon. The recovery is challenged on the ground that the knife was recovered two days after the occurrence and it is impossible that the blood stained knife could have been got remained in open place for such period and more so, in the house of the accused. This objection is also to be noted for the sake of rejection alone. The recovery is stated to have been effected in search in the room of the appellant. It was recovered from a „taand‟ which would be near the roof of the room and not from an open place. There is nothing to show that the placement of the knife was such that it was beyond reach but was such that it was visible to all. For this reason, it is not possible to disbelieve the seizure of the knife from the place in

question for the reason that it was from an open place. There is however, no public witness to the said seizure.

15. However, the police has also not lifted any finger prints from the dagger. It is in the testimony of the witness that there were no blood stains even on the „taand‟ from where the dagger was recovered.

16. Learned counsel has also drawn our attention to the report from the Forensic Science Laboratory which though has reported that there was human blood on the knife, but has failed to connect the blood to the blood of the deceased.

17. So far as the recovery of the blood stained clothes is concerned, Ms. Charu Verma, learned counsel for the appellant has pointed out that the approach to the tree wherefrom the yellow colour polythene bag and blood stained shirt are claimed to have been recovered, was through the roof of a nearby tailor‟s shop. No other access to the said hole has been stated by any of the witnesses.

18. It is submitted that the alleged incident is stated to have been taken place at about 12:00 am on the night intervening 10 th/11th September, 2005. PW-2 - Prem Singh has stated that he had seen the appellant coming down from the staircase and running away from the premises. The tailor‟s shop would not have been open in the middle of the night. There is no evidence at all as to how and when the accused could have accessed hollow of the tree to hide the blood stained shirt.

19. So far as the recovery of the shirt is concerned, there thus appears to be some merit in the objection raised by learned counsel for the appellant to the effect that in case the testimony of PW-2 is accepted, there was no occasion for the accused to have reached the hollow of the tree to hide the blood stained shirt. Given the case of the prosecution that the appellant was seen running away from the spot and there was no evidence that he returned to the spot coupled with the fact that the access to the said hollow was only through the tailor‟s shop in the area, it is difficult to accept the claim by the prosecution that it was the disclosure by the appellant which led to the recovery of a blood stained shirt.

20. The above narration shows that even though we were to disbelieve the recovery of the shirt at the instance of the appellant, given the testimony of the PW-2 - Prem Singh, there is still enough evidence with regard to the involvement of the appellant in the incident for which he was tried.

21. It is noteworthy that there is no evidence on record at all as to the whereabouts of or what happened to the father-in-law - Shri Lal Bahadur who was drinking with the deceased and also present on the roof at the time of the incident. None of the witness including PW-2 has made any statement with regard to the whereabouts of the father-in-law. The prosecution has failed to record his statement or to produce him as a witness even though he was a material and crucial witness so far as the commission of the offence is concerned. Learned counsel for the appellant has contended that the prosecution has withheld this important

evidence which would have established the innocence of the appellant.

22. Ms. Charu Verma, learned counsel for the appellant has also submitted that entire incident as deposed by PW-2 - Prem Singh is shrouded in doubt inasmuch as the police has not recovered any alcohol bottles or glasses either from the room of the appellant or the roof where, as per Prem Singh, the drinking session was held.

23. Given the fact that there was no eye-witness to the said incident, the prosecution has attempted to build a case of motive on the part of the appellant. PW-2 has suggested that the deceased had given a loan of Rs.100/- to the accused over which there was acrimony between the two persons. If this was the case, the prosecution has rendered no explanation as to how the two were drinking together, along with PW-4 - Shri Lal Singh, first in the room of the appellant and then they proceeded to the roof to continue with their drinking session. If there was acrimony between the parties, certainly there would be no question of such a session together. Bonhomie between the accused and the deceased is also apparent from the statement of PW-2 - Prem Singh that when he called deceased - Dalip for dinner, he was told by the deceased that he would eat later.

24. The very fact that the three persons were drinking together would suggest that there was no animosity or ill-will and that the same is further manifested from the evidence of PW-2 - Shri Prem Singh who has stated that the deceased refused to come away and had told him that he would eat later. This fact by itself suggest that

even at that point of time, there was no ill-will among the three persons and they were enjoying their bout of drinking together.

25. Ms. Charu Verma, learned counsel for the appellant has submitted that even if it were to be held that the appellant was responsible for the stab wound on the body of the deceased, there was no evidence at all to show that he had any intention to cause such an injury which would result in death of the appellant. It is submitted that for this reason, the conviction of the appellant for the commission of offence under Section 302 of the IPC is not justified and that the appellant at best could have been held guilty for commission of offence under Section 304 Part II of the IPC. It is further submitted that the appellant along with his father-in-law and the deceased - Dalip were enjoying a drinking session together manifesting the good spirits when the unfortunate incident is alleged to have taken place and that there is nothing on record to establish that the appellant intended to kill the deceased. In support of her submission, reliance is placed on the pronouncement of the Supreme Court reported at AIR 1968 SC 1390, Laxman Kalu v. State of Maharashtra; 2011 (1) SCALE 120, Laxmichand @ Balbutya v. State of Maharashtra; 2012 (5) SCALE 357, Abdul Nawaz v. State of West Bengal; (1983) 2 SCC 342, Jagtar Singh v. State of Punjab; and 1984 SCC (Crl.) 164, Tholan v. State of Tamil Nadu.

26. Learned counsel for the appellant submits that in the given facts, the appellant has at the worst to be held guilty for commission of offence under Section 304 Part II of the IPC and the

sentence is required to be reduced to the period already undergone. In this regard, learned counsel for the appellant has placed reliance on the pronouncement of the Supreme Court reported at (1975) 3 SCC 822, Kundan Singh v. Delhi Administration.

A perusal of this pronouncement would show that it was the case of the prosecution that the accused persons had caused blows on the head of the deceased. The cause of death was opined by the doctor to be a result of rupture of the spleen as well as of one of the blows on the head. It could not be determined as to which of the accused had caused such injuries on the head. Consequently, the Supreme Court had held that all the accused could not be held liable for the blow. Because of this doubt, though the appellants were convicted for commission of offence under Section 304 Part II of the IPC, the sentence was reduced to the undergone period of five years.

27. In the present case, this court is left completely in a dark as to how a drinking session resulted in a homicidal attack on the deceased. There is no evidence of the nature of the event which resulted in a single stab injury on the person of Dalip. There is not an iota of evidence which would show the appellant intended to cause a fatal stab injury on the deceased - Dalip. Though given the nature of the weapon and the injury which resulted, it has to be held that the appellant would have the knowledge that the injury could result in the death of Dalip.

28. In similar facts, in the judgment of the Supreme Court in Laxmichand @ Balbutya (supra), the Supreme Court held that the

commission of the offence attributed to the accused - appellant would come under Section 304 Part II of the IPC. The other judicial pronouncements cited by learned counsel for the appellant noted hereinbefore, are to the same effect. It has been repeatedly held that "the act of the appellant which tantamount to commission of culpable homicide would not amount to murder if the same is committed without any pre-meditation and in a sudden fight, in the heat of passion, in the course of sudden quarrel without the offender taking undue advantage or acting in a cruel or in an unusual manner". Reference in this regard may be made to Abdul Nawaz (supra).

29. In view of the above discussion, it would appear that learned trial judge has overlooked the aspect of the lack of evidence to establish the intention to cause the death of the deceased on the part of the appellant. For this reason, the conviction of the appellant for commission of the offence under Section 302 of the IPC is not sustainable. However, in the light of the above discussion, it has to be held that the appellant was guilty of commission of offence which would fall under Section 304 Part II of the IPC.

30. So far as the appropriate sentence is concerned, considering the nature of the injuries and the conviction of the appellant for commission of offence under Section 304 Part II of the IPC, we are of the view that the rigorous imprisonment of eight years would meet the ends of justice. It is ordered accordingly.

This appeal is disposed of in the above terms.

GITA MITTAL, J

J.R. MIDHA, J FEBRUARY 14, 2013 aj