Rakesh Kumar vs State (Nct Of Delhi)
2013 Latest Caselaw 3942 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                            Reserved on:         7th August, 2013
%                           Date of Decision:   5th September, 2013

+                    CRIMINAL APPEAL NO.98/2009

RAKESH KUMAR                                          ..... Appellant
            Through:            Mr.Pawan Bahl, Amicus Curiae.


                                versus


STATE (NCT OF DELHI)                                 ..... Respondent

              Through:          Mr.Sanjay Lao, APP for State.


CORAM:
HON'BLE MR. JUSTICE P.K. BHASIN
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J:

1. The appellant challenges the judgment dated 30th November,

2007 and order on sentence dated 14th December 2007 passed by

learned Additional Sessions Judge, Karkardooma Court, Delhi in

Sessions case No.72/07 arising out of FIR No.554/04 under Section

302 of the Indian Penal Code (‗IPC' for short), P.S. Pandav Nagar.

2. The appellant has been convicted for the offence under Section

302 IPC for committing murder by causing death of Chhajjan on 20th

October, 2004. The appellant has been sentenced to undergo

imprisonment for life with fine of Rs.500/- and in default of payment

of fine to undergo simple imprisonment for a period of 15 days.

3. Succinctly stated, the case of the prosecution is that on 20th

October, 2004, DD No.16A was recorded at P.S. Pandav Nagar

regarding a quarrel near Akshardham Temple, Delhi and it was handed

over to HC Jagsaran. On receiving the said DD, HC Jagsaran along

with Constable Devraj reached at Pushta Yamuna Khadar near

Akshardham Temple and found the dead body of one

Chhajjan(deceased) lying on a charpai. Thereafter DD No.18A was

recorded at P.S. Pandav Nagar and the same was handed over to SI

Madan Meena for investigation, who along with Constable Rameshwar

Dyal, reached the spot and inspected the scene of crime. Some

cauliflower leaves with blood stains, one pair of chappal and one blood

stained ‗wooden seru' (wooden bamboo used in a cot) were found at

the spot which were seized. Statement of eye-witness Shadre Alam @

Chhotu (PW-5) was recorded. Accused was arrested, site plan was

prepared and post mortem on the dead body of the deceased was got

done. After completion of investigation, charge-sheet was filed. The

trial was conducted, leading finally to the passing of the impugned

judgment and order on sentence.

4. Learned Amicus Curiae for the appellant contended that the trial

Court has failed to appreciate the facts and circumstances of the case.

The prosecution story is false, frivolous and concocted. The

prosecution has neither brought forth the motive of the appellant to

cause murder nor has anything come on record to show that there was

any prior dispute or enmity between the appellant and the deceased. It

is further contended that star witness of the prosecution namely, Shadre

Alam (PW-5) who is the first eye-witness and has narrated the

incident, could not have seen the appellant hit the deceased with a

wooden seru as he was in his fields and cutting fodder in Yamuna

Khadar in the field of jwar which is around 8-10 feet high and he could

not have been in a position to look around while cutting jwar. Also

while cutting crops from the bottom, a farmer has to sit and cut crop

from the bottom near the ground and in such a situation, the possibility

of his statement being fabricated cannot be ruled out. Shadre Alam

(PW-5) has also not specified the location of the field of the appellant

and also whether from the distance where he was working he could

actually see the incident happening.

5. Learned Amicus Curiae for the appellant lastly contended that

the prosecution has not brought forth the purpose of visit of the victim

to the field of the appellant. Also Avtar Singh (PW-7) has not

described his whereabouts at the time of incident.

6. On the other hand, learned APP for the State contended that the

case of prosecution stands proved from testimony of Shadre Alam

(PW-5) and Avtar Singh (PW-7), they both are eye-witnesses of the

incident and were present at the spot. No motive was imputed to PW-7

in cross-examination to make false deposition against the appellant and

also nothing has been brought on record to show that any prior dispute

existed between these witnesses and the appellant, so that it can be said

that they had falsely deposed against him. He further contended that

the appellant has failed to give any explanation to the incriminating

evidence against him, nor has he examined any witness in his defence

to falsify the testimony of prosecution witnesses. It is lastly contended

by learned APP for the State that the testimony of Shadre Alam

(PW-5) stands corroborated with the testimony of Avtar Singh (PW-7).

The contention that PW-5 could not have seen the appellant hit the

deceased is without any merit and should be rejected.

7. We have heard learned Amicus Curiae for the appellant and

learned APP for the State and gone through the material on record.

8. At the outset, it would be important to reproduce the testimony

of the eye-witnesses Shadre Alam (PW-5) and Avtar Singh (PW-7).

Shadre Alam (PW-5) has in his testimony stated that on 19th October,

2004 at about 11.00 a.m., he was cutting fodder in Yamuna Khadar

near the temple near power house. The appellant was also working in

a nearby field along with other person. The deceased (Chhajjan) had

gone to the field where appellant Rakesh Kumar was working and

there the appellant hit the head of the Chhajjan from the back with seru

(the wooden bamboo used in a cot). One another person had also seen

the appellant hitting the deceased who was working with him. After

receiving the seru blow, Chhajjan fell down in the fields, they both

reached near him in the fields where he was lying in injured condition.

They lifted him and put him on the cot for taking him to the hospital,

however, he died near the Pushta. Number of persons had gathered at

the spot, the appellant was apprehended there, lastly, was handed over

to the police. He stated that he was unaware as to why the appellant

had beaten the deceased and also that he had never seen the appellant

and the deceased in a quarrel earlier. In his cross-examination

conducted on 5th October, 2006, he has admitted that from the place

where he was working, the other places were not visible. The

appellant was not visible from the place where he was sitting and

working in his fields due to height of ‗jwar'. On hearing his name

from the other eye-witness from the fields where appellant was

working, he rushed to that fields where he saw that the deceased had

fallen on the ground and the appellant was standing with a seru in his

hand. He further stated that he reached there in seconds. The other

eye-witness was already present there and 2-3 other persons were also

present who snatched seru from the appellant. He volunteered that the

appellant even tried to hit them with seru. Further in his cross-

examination dated 7th November, 2011, he reiterated that he reached

the place of occurrence after hearing the noise from the distance of half

a kilometer and nothing was visible from the place where he was

standing. The said witness was re-examined on that day wherein he

stated that the appellant was working in the fields along with other

person. Appellant (Rakesh Kumar) hit Chhajjan with seru on his head

from the behind. However, he stated that he had not seen the appellant

while hitting on the head of the deceased. The person whose name was

probably Avtar immediately reached the spot and caught hold of seru

from the hand of the appellant. He also stated that he has given his

statement to the effect that the appellant had hit Chhajjan with seru as

per the version told to him by the said Avtar.

9. Avtar (PW-7) in his testimony stated, that on 20th October, 2004

around 11.00 a.m., he was doing job in the fields. On that day, he had

returned from the mandi after selling vegetables and was present at the

house. Rakesh Kumar and Chhajjan were doing labour work in the

fields of Kartar. Both started quarrelling and abusing each other.

Chhajjan sat near brah (drain). In the meantime, Rakesh Kumar came

towards his jhuggi and brought a charpai seru (wooden danda)

thereafter the appellant uttered ‗Tu Mera Baap banana chah rah hai'

and he hit wooden danda on the head of the Chhajjan. Chhajjan asked

him as to why he was beating him, he once again hit the wooden danda

on the head of the Chhajjan. When he was hitting the third blow of

danda, he along with Shadre Alam tried to save him from the

appellant. At that time, they apprehended the appellant, 2-3 other

persons came there and the appellant was tied with the rope. All

persons made Chhajjan lie on the cot. He was brought to Pushta

however, when they were in the process of taking him to the hospital,

he died. In his cross-examination, he stated that he was sitting outside

his jhuggi at the time of incident. The distance between the place of

incident and his jhuggi was 10 steps. He denied the suggestion that he

was not present at the jhuggi on the date of incident. He further stated

that Chhajjan was doing the work in the fields but the quarrel took

place later on. The fields where Chhajjan was working was at a

distance of 15-20 yards from his jhuggi. Shadre Alam (PW-5) was

working in his fields at a distance of about 40-50 yards away from the

place of incident. He further stated that he could have seen Shadre

Alam cutting fodder. He denied the suggestion that Rakesh

Kumar (appellant) was also doing work in jwar field and that he was

not visible from his jhuggi. He further stated that at the time of

incident, he, Shadre Alam, his brother and parents reached the spot.

Shadre Alam put the deceased on the cot but he did not help him in

putting the deceased on the cot.

10. A perusal of the testimony of both these witnesses would show

that the deceased was hit by the appellant with a wooden seru on his

head, as a result of which he had fallen down on the ground and when

he was being taken to the hospital, he had passed away near Pushta.

Avtar (PW-7) has fully supported the case of prosecution as an eye-

witness of the incident and Shadre Alam (PW-5) has corroborated in

his testimony that he had seen that the deceased was hit by the

appellant on his head. However, in his first cross-examination dated

5th October, 2006, he has stated that the appellant was not visible from

the place where he was sitting and working and also that on hearing his

name from other eye-witness from the fields where the appellant was

working, he rushed and saw that the deceased had fallen on ground and

the appellant was standing with seru in his hand. Also, in his re-

examination dated 7th November, 2007 by learned APP for the State,

he stated that he had not seen the appellant while hitting on the head of

the deceased and that he was told by Avtar (PW-7) that the appellant

had hit the deceased. Although the said witness has not been declared

hostile, there are certain discrepancies in his statement made in cross-

examination. Even that be so, his testimony cannot be discarded as a

whole, as per the judgment of the Supreme Court in Khujji @

Surendra Tiwari vs. State of Madhya Pradesh, (1991) 3 SCC 627.

In the said case, it was observed as under:-

"6. ............. It seems to be well settled by the decisions of this Court that - Bhagwan Singh v. State of Haryana [(1976) 1 SCC 389: 1976 SCC (Cri) 7 : (1976) 2 SCR 921], Rabindra Kumar Dey v. State of Orissa [(1976) 4 SCC 233 : 1976 SCC (Cri) 566 : AIR 1977 SC 170] and Syad Akbar v. State of Karnataka [(1980) 1 SCC 30 : 1980 SCC (Cri) 59 : (1980) 1 SCR 95] - the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses

cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof...........‖

11. Moreover, the testimony of Shadre Alam (PW-5) is corroborated

in material parts with the testimony of Avtar (PW-7) with respect to

the deceased lying in the field and the appellant being present on the

place of incident with seru in his hand from where he was

apprehended.

12. Even if we do not treat Shadre Alam (PW-5) as an eye-witness

to the said incident, the sole testimony of Avtar (PW-7) corroborated in

material parts as stated above would be sufficient to base the

conviction of the appellant. We observe that Section 134 of the Indian

Evidence Act, 1872 does not lay down any particular number of

witnesses to prove a fact. The evidence has to be weighed and not

counted. The Supreme Court in Kunju vs. State of Tamil Nadu,

(2008) 2 SCC 151 observed as under:-

"11. ―8. In Vadivelu Thevar v. State of Madras [AIR 1957 SC 614] this Court had gone into this controversy and divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly, neither wholly reliable nor wholly unreliable. In the case of the first two categories this Court said that they pose little difficulty but in the case of the third category

of witnesses, corroboration would be required. The relevant portion is quoted as under: (AIR p. 619, paras 11-12) ‗11. ... Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.'

9. Vadivelu Thevar case [AIR 1957 SC 614] was referred to with approval in Jagdish Prasad v. State of M.P. [1995 SCC (Cri) 160 : AIR 1994 SC 1251] This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short ‗the Evidence Act'). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence

has a ring of truth, is cogent, credible and trustworthy, or otherwise.‖

13. The homicidal death of the deceased is not disputed. Moreover,

the same is proved by Dr.Vinay Kumar Singh (PW-3) who conducted

post mortem on the body of the deceased. He has deposed that on

21.10.2004 at about 12.30 p.m., he conducted the post mortem of

Chhajjan, s/o Ramji Lal with the alleged history of assault with

wooden seru. On external examination, he found following injuries on

his body:-

―Injury no.1- laccerated wound of 10 x 3 cms, margins irregular, obliquely placed over right fronto parietal region, bone deep.

Injury no.2 - lacerated wound, 11 x 2 cms in size, margins irregular, vertically placed over left fronto parietal region, bone deep.

Injury no.3 - bruise, 13x4 cms in size, present over left temporal region, obliquely placed.

Injury no.4 - bruise, 3 x 1.5 cms in size present over tip of the left shoulder.

Injury no.5 -laccerated wound, of 5 x 3 cms in size, bone deep present over left shin 4 cms below knee joint irregular in shape.‖

14. Further, cause of death has been opined as cranio cerebral

damage consecutive (sic) upon blunt force impact to the head, all

injuries were antemortem in nature and recent in duration.

15. Dr.Vinay Kumar Singh (PW-3) stated in the post mortem report

that time since death is 22-28 hours. As per his report, death took

place around 12.00 p.m. on 20.10.2004 whereas as per the version of

eye-witnesses, incident took place around 11.00 a.m. on 20.10.2004.

In view of above contradiction, learned counsel for the appellant

concedes that there is a variation of 1-2 hours between the time of

incident and time since death. However, we observe that this variation

is natural variation and the time since death given by the doctor is only

approximate and not exact. If there is a contradiction between ocular

evidence and medical evidence, then the ocular evidence is to be

believed by the Court. In this regard, reliance can be placed upon

Mangu Khan and Ors. Vs. State of Rajasthan, (2005) 10 SCC 374,

wherein it was held that ―on Forensic Medicine to show the time

within which rigor mortis develops all over the body also has no

factual basis. It depends on various factors such as constitution of the

deceased, season of the year, the temperature in the region and the

conditions under which the body has been preserved‖.

16. In another case Solanki Chimanbhai Ukabhai vs. State of

Gujarat, (1983) 2 SCC 174, it was held by the Supreme Court that

―13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.‖

17. In the instant case, as per the post mortem report, the autopsy

was started at 12.30 p.m. and was concluded at 2.00 p.m. The time

since death was opined as 22-28 hours. As per the report, time of

death must be 12'O clock whereas actual time of incident which was

reported is 11'O clock on 20th October, 2004. Although, there is a

variation of one hour approximately but it is not a material variation

which can be fatal to the case of prosecution in view of the above

discussion.

18. Perusal of the post mortem report (Ex.PW3/A) shows that

injuries No.1, 2 and 3 were caused by a blunt object and that too on a

vital part of the body i.e. head, and were sufficient to cause death in the

ordinary course of nature.

19. Moreover, the weapon of offence i.e. seru was recovered from

the spot and was sent to Department of Forensic Medicine and

Toxicology, where Dr.Vinay Kumar Singh (PW-3) after examination

of the weapon, opined that ‗seru' was a blunt object having blood

stains at one end and mud stains on the other. Further, he opined that

injuries described in post mortem report are possible with this weapon

and he proved the report in this regard as Ex.PW3/B.

20. In the instant case, the intention to cause bodily injury is made

out from the testimonies of the witnesses namely, Shadre Alam (PW-5)

and Avtar (PW-7) and its sufficiency to cause death in ordinary course

of nature is proved by the post mortem report.

21. Also, the contention of the appellant that the distance between

the place of incident and the place where Shadre Alam (PW-5) was

present was 500 meters and he would not have seen or heard about the

incident from such a distance is devoid of any merit in the light of site

plan (Ex.PW12/A). The site plan clearly indicates the distance

between PW-5 (described as `e' and the incident described as `a') was

50 meters and not 500 meters from where it is possible to clearly see

the incident and hear the voice.

22. Last but not least, learned Amicus Curiae for the appellant

contended that even if we believe that the appellant had cause the death

of the deceased, however, in the circumstances of the case his case is

still covered by Fourth Exception to Section 300 IPC and therefore, he

should be convicted not under Section 302 IPC rather under Section

304 IPC. Here it is important to note that to avail the benefit of

Exception IV to Section 300 IPC, the defence is required to probalise

that the offence was committed without pre-meditation in a sudden

fight in the heat of passion upon a sudden quarrel and the offender had

not taken any undue advantage and the offender had not acted in a

cruel or unusual manner. The Exception is based upon the principle

that in the absence of pre-meditation and on account of total

deprivation of self-control but on account of heat of passion, the

offence was committed which, normally any man of sober urges would

not resort to. Sudden fight though not defined under the Act, implies

mutual provocation. It has been held by Courts that a fight is not per

se palliating circumstances and only unpremeditated fight as such. The

time gap between quarrel and the fight is an important consideration to

decide the applicability of the incident. If there intervenes a sufficient

time for passion to subside giving the accused time to come to

normalcy and the fight takes place thereafter, the killing would be

murder but if the time gap is not sufficient, the accused may be held

entitled to the benefit of this Exception.

23. It is not possible to enunciate any general rule as to what shall be

deemed to be a sudden quarrel. It is a question of fact and whether a

quarrel is sudden or not must necessarily be depend upon the true facts

of each case. For the application of Exception IV, it is not sufficient to

show that there was a sudden quarrel and there was no pre-meditation.

It must further be shown that the offender has not taken undue

advantage or acted in cruel or unusual manner.

24. In the instant case, concededly no evidence was lead to show

that there was sudden quarrel between the deceased and the appellant.

But even if we believe that as there was no previous enmity between

them, it could be a sudden quarrel, then also it can be clearly observed

that the appellant had acted in cruel manner and took undue advantage

as deceased was not found in possession of any weapon and moreover,

the appellant had hit the deceased not once, but thrice and that too on

the head, which is a vital part of the body. This shows that appellant

had the intention of causing death of the appellant which is out of the

purview of Exception IV to Section 300 IPC, also the onus was on the

appellant to prove that his case fell within this exception by adducing

evidence to this effect instead of a mere statement which he has failed

to discharge. Therefore, the matter rests under Section 302 IPC only.

According to the rule laid down in Virsa Singh vs. State of Punjab,

AIR 1958 SC 465, even if the intention of the accused was limited to

the infliction of a bodily injury or injury sufficient to cause death in the

ordinary course of nature and did not extend to the intention of causing

death, the offence could be murder. On that score also, the proper

conviction will be under Section 302 IPC.

25. In view of the aforesaid discussion, the appeal fails, deserves to

be dismissed and the same is hereby dismissed. The judgment dated

30th November, 2007 and the order on sentence dated 14th November,

2007 are upheld.

(VED PRAKASH VAISH) JUDGE

(P.K. BHASIN) JUDGE

September 05, 2013 gm