Delhi High Court

Shankar [email protected] vs State (Nct Of Delhi) on 3 April, 2014

Author: Sanjiv Khanna

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CRIMINAL APPEAL NO. 476/1998

                               Reserved on: 28th February, 2014
%                          Date of Decision: 3rd April, 2014


SHANKAR [email protected]                                      ..... Appellant

                    Through     Mr. Rajan Bhatia, Advocate.

                          Versus

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

Through Ms. Rajdipa Behura, Additional Public Prosecutor.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE G.P. MITTAL

SANJIV KHANNA, J:

Shankar Lal @ Shankar by the impugned judgment dated 30th

September, 1998 stands convicted under Sections 302 of the Indian

Penal Code, 1860 (IPC) for murder of his uncle Mukesh Kumar. Said

Mukesh Kumar was son of Mishri Lal from his second wife, whereas

the appellant herein is son of Rohtas, who was born from the first wife

of Mishri Lal. By order on sentence dated 6th October, 1998, the

appellant has been sentenced to life imprisonment and fine of

Rs.5000/-, in default of which, he has to undergo Rigorous

Imprisonment for six months.

2. The main contention or plea raised in the appeal is that the

appellant has been wrongly indicted and is not the culprit or perpetrator

of the crime. It is submitted that there is no legal evidence to implicate

the appellant. The second plea and connected contention raised relates

to the doubt or debate on the question of cause of death of Mukesh

Kumar.

3. At the outset, we notice and record that there is no eye witness to

the occurrence. The alleged eye witness Rajinder (PW-1) was declared

hostile and has not supported the prosecution case as to who was the

perpetrator or how the crime was committed. The prosecution relies

upon several factors like place of crime, attempt to cover up,

abscondence of appellant, recovery of the blood stained knife/dagger

and "blood stained" clothes of the deceased and the CFSL report,

which opines that the blood group found on the knife/dagger and

clothes of the deceased, matched.

4. Mukesh Kumar was declared brought dead at Guru Teg Bahadur

Hospital on 12th January, 1996 at 7 p.m. This MLC was proved and

marked as Ex.PW2/A. It records that Pawan Kumar, son of Rohtas and

resident of the same address as that of the patient, i.e. B-273, Gamri

Road, Ghonda (sic B270, Gamri Road Ghonda), had brought Mukesh

Kumar to the hospital. The patient Mukesh Kumar has been described

as son of Mishri Lal and the time of admission mentioned was 7 p.m.

It was alleged that the patient had history of fall and against the column

"cause" in the MLC report it was mentioned "Blunt (H/o fall)". The

said MLC was proved by Dr. R.K. Nagar (PW-2) of the said hospital.

However, we do not find any reason to dispute or even debate the

cause of death in view of the post mortem report, Ex.PW3/A. Dr.

K.K. Banerjee (PW-3) of Guru Teg Bahadur Hospital had conducted

the said post mortem on 15th January, 1996 between 10.45 a.m. to

12.15 p.m. As per the said post mortem report and court deposition of

the PW-3, the deceased had suffered the following ante mortem

injuries:-

"Ante-mortem injuries:-1. A spindle shaped incised stab wound of sixe 2.2 cm. × -2 cm. × cavity deep present in the right side of chest in front placed 5 cm. below the right nipple and 7.5 cm. to the right of midline placed obliquely having one angle more acute than the other with evidence of bleeding in and around the margin going posteriorly downwards and slightly to the midline. The wound has pierced through the seven inter costal space in the chest cavity or right side cutting the4 anterior margin of lower lobe or right lung, cutting the diaphragm and going into the anterior surface of right lobe of

lever making a wedged shaped stab wound of size 2.1 × .2 cm. and coming out of the inferior surface or right lobe of lever near the hilum. The whole length of the tract being 10 cm. with bleeding in its entire course.

2. Spindle shaped incised stab wound of sixe 2-4 cm. × -4 cm. into cavity deep present in the right hypo chronogram place 4 cm. below the right costal margin almost in the main clavicular line 10 cm lateral to midline directed backwards, downwards and medially having one angle more acute than the other cutting in its tract the inferior venacava after entering the poritonial cavity and piercing, the loops of intestines. It has also cut the interior spinal muscles on right side. The left kidney in the middle of anterior surface measuring 6 cm. × .3 cm × 3 cm. and superficial clean cut on the first lumber vertebra 5 cm. × .2 cm-3 cm. The total length of the tracts being about 14 cm. evidence of bleeding in its entire length.

3. An abrasion red colour present posteriorly of size 2.2 cm. .5 cm. on the tip of right elbow."

5. The post mortem report refers to internal injuries, which states

that nothing abnormal was detected in the brain and scalp, but the chest

cavity was filled with liquid and clotted blood. Abdomen cavity was

filled with liquid blood with massive retroperitoneal hemorrhage in the

form of clotted blood, quantity of which was about 2 liters. The

stomach was full of digested food material. Cause of death was

described as shock due to hemorrhage as a result of injuries to the

internal organs produced by a sharp edged weapon. It was opined that

injury Nos.1 and 2 mentioned above were sufficient to cause death in

ordinary course of nature both independently and collectively. We

shall be referring to the opinion of Dr. K.K. Banerjee (PW-3) and his

court testimony with reference to the weapon of offence subsequently.

The testimony of PW-3 and the post mortem report, Ex.PW3/A

completely rule out possibility of death of the deceased Mukesh Kumar

on account of fall from height. The cause of death were two incised

wound injuries clearly deposed to and opined by PW-3 in the post

mortem report, Ex.PW3/A.

6. At this stage, it would be important to refer to the testimonies of

Inspector M.C. Katoch (PW-12), SI Surender Kumar (PW-13) and

Constable R.P. Meena (PW-8). PW-13 was the first Investigating

Officer to whom DD No.14A, Ex.PW8/B was marked. The said DD

entry does not mention name of the appellant as the perpetrator, but it

was recorded at about 7.15 p.m. after Mukesh Kumar was taken to

Guru Teg Bahadur Hospital and his MLC, Ex.PW2/A was recorded.

PW-13 has stated that they went to the hospital, collected the MLC and

the body was sent to the mortuary. Thereupon, they came to the spot

i.e. B-273, Gamri Road, Ghonda and found blood in the gallery and on

the Chabutra. PW-13 inspected the spot and on physical examination

came to the conclusion that body could not have fallen on the Chabutra

from the Chajja i.e. canopy on the first floor. He went back to the

hospital, but no eye witness could be found. On 13th January, 1996, he

examined the dead body in the mortuary and noticed stab injuries on

the chest and the right side of the abdomen. He prepared rukka,

Ex.PW13/A and handed over the same to the Duty Officer at the police

station to register the case after making endorsement at portion

Ex.PW5/A. Thereafter, the investigation was handed over to the SHO,

M.C. Katoch (PW-12). He had lifted the blood sample from the

Chabutra and gallery. Photographs, Ex.PW7/A, B and C were taken in

his presence.

7. SI Surender Kumar (PW-13) has also referred to the abscondence

of the appellant and stated that they made inquiries and searched for the

appellant, who was later on apprehended at New Delhi Railway Station

in the waiting room at Ajmeri Gate side. Personal search of the

appellant was conducted vide memo Ex.PW12/B. Appellant made

disclosure statement Ex.PW12/C and led the police party to B-5, Brij

Puri, house of one Manmohan Kalia from where the knife Ex.P-7 was

recovered from the mumty on the roof. Sketch of the said knife was

prepared and the same was seized vide memo Ex.PW12/G. The Site

plan, Ex.PW12/D of the place of recovery was also prepared by the

SHO. The appellant thereafter led them to B-270 from where "blood

stained" clothes Ex.PW-5 and P-6 were seized vide memo Ex.PW12/F.

8. There is nothing in the cross-examination of PW-13, which dents

or creates doubt on his testimony on 3 aspects; (i) that on physical

examination, the story that the deceased Mukesh Kumar had fallen

from the Chajja was found to be incorrect and improbable as the Chajja

extended beyond the Chabutra. Blood stains were found inside the

gallery and under the Chajja. Thus, an attempt was made to cover up

and camouflage the occurrence. This was corroborated by the injuries,

which PW-13 had noticed on the body of the deceased; (ii) PW-13 had

deposed that the appellant was absconding immediately after the

occurrence and was subsequently arrested on 14th January, 1996 from

the waiting room at Ajmeri Gate side of New Delhi Railway Station

and; (iii) Pursuant to the disclosure statement, Ex.PW12/C, one

knife/dagger from B-5, Brij Puri was recovered.

9. Inspector M.C. Katoch (PW-12) who took over the investigation

has deposed on identical lines on the three aspects. Blood was found

on the Chabutra and gallery of House No. B-270, Gamri Road,

photographs of which were taken. He had deposed that he searched for

the appellant Shankar Lal but he could not be traced. He received a

letter from the office of Deputy Commissioner of Police on constitution

of medical board for autopsy of the dead body of the deceased Mukesh

Kumar. Autopsy could not be done on 14th January, 1996 as it was a

Sunday. But on the said date they had tried to locate Shankar Lal at

Brij Puri, Ghonda, Punjabi Bagh and Sultanpuri but finally he was

apprehended in the waiting hall at New Delhi Railway Station towards

Ajmeri Gate side. PW-12 had recorded disclosure statement (Ex.

PW12/C) and pursuant thereto knife was recovered from B-5 Brij Puri,

residence of Manmohan Kalia. Site plan of the place of recovery and

sketch of the knife were prepared and were marked Ex. PW-12/D and

PW-12/E respectively. Clothes worn by the appellant, which were

"blood stained", were also seized vide Ex. PW-12/F. CFSL report in

respect of clothes of the deceased, the appellant, knife and blood

samples were obtained. He identified the clothes, knife etc. In the

cross-examination, Insp. M.C. Katoch (PW12) accepted that there were

houses including shops on both sides and he had requested the

shopkeepers to join the proceedings but they refused. Chabutra

existed on both sides of the spot and in the house there was a gallery.

At the time of recovery Manmohan Kalia was present at B-5 Brij Puri.

10. Deposition of R.P. Meena (PW8) is similar. He has stated that

after collecting MLC of Mukesh Kumar, he along with Investigating

Officer went to the spot where blood was found on the chabutra and

gallery. The blood was collected in a bottle with the help of cotton and

sealed. Place of occurrence was photographed. Rukka was prepared

and the FIR was registered. The dead body was kept in the mortuary

for post mortem and subsequently post mortem was conducted on 15 th

January, 1996. However PW8 had not deposed as to the abscondence

of the appellant but this fact as noticed above, has been clearly deposed

to by PW12 and PW13. The fact that blood was found under the

chabutra and in the gallery is also proved from the photographs which

were taken by Satish Sharma (PW7) were marked Ex. PW7A, B and C

and negatives were given marks Ex. PW7/A-1 to C-1. The witness

PW-7 was not cross-examined. The photographs reveal that blood was

found just adjacent to the door of the house which was underneath the

Chajja. The blood would not have been present at the said spot in case

the deceased had fallen from the first floor as then he would not have

fallen on the Chabutra and blood would not have been visible or to be

found on the Chabutra next to the door. This is also clear from the

site plans scaled and unscaled Ex PW-9/A and Ex. PW9/12A

respectively. Visual site plan unscaled was prepared in the presence of

PW12.

11. At this stage, it would be relevant to refer to the testimonies of

Vishnu Dutt (PW-10) and Krishan Gopal (PW-11), brothers of the

deceased Mukesh Kumar. Both were residents of village Kaseru,

District Aligarh, Uttar Pradesh. Leaned counsel for the appellant is

right that the assertions made by PWs-10 and 11 that they had heard or

Pawan Kumar, brother of the appellant had told them that Mukesh

Kumar had been killed or stabbed by Shanker Lal, the appellant herein,

is hearsay evidence and not admissible. However, the statements of

PWs-10 and 11 prove and establish that a few days before the

occurrence, Mukesh Kumar had left the village and had come with

Parveen Kumar, brother of Shanker Lal to Delhi to work at his shop.

Subsequently, Pawan Kumar, another brother of Shankar Lal had come

to the village from Delhi and informed them about death of Mukesh

Kumar. They have also deposed that their grandfather Mishri Lal had

two wives. Mukesh Kumar was son from one wife, whereas Shanker

Lal was a grandson of Misfri Lal from his other wife.

12. This brings us to the disclosure statement of the appellant

(Exhibit PW-12/C), recovery of the "blood stained" clothes of the

appellant and the knife from the residence of Manmohan Kalia at B-5,

Brijpuri. At the outset, we record that Manmohan Kalia did not depose

as a witness though he was cited as he had died. This fact was recorded

in the order dated 17th August, 1998. Recording of the disclosure

statement (Exhibit PW-12/C) has been deposed to by Inspector M.C.

Katoch (PW-12) and SI Surender Kumar (PW-13). This was

immediately after the appellant was arrested on 14 th January, 1996.

The place of recovery of the knife was elucidated by PW-12 and stands

collated with the unscaled site plan (Exhibit PW-12/D). We have the

drawing or sketch of the knife (Exhibit PW-12/E), which was

recovered from B-5, Brijpuri, Delhi. As per the deposition of Insp.

M.C. Katoch (PW-12), the knife was recovered from the roof of the

mumty of the house B-5, Brijpuri, which was in occupation of

Manmohan Kalia. Similar deposition has been made by SI Surender

Kumar (PW-13) that from roof of the mumty of house No. B-5

Brijpuri, house of Manmohan Kalia, a knife was recovered at the

instance of the appellant. Later on the appellant took the police party

to B-270 and the clothes of the appellant, which were alleged to be

blood stained were recovered. The recoveries were sealed and the seal

after use was given to Manmohan Kalia.

13. The CFSL report (Exhibit Marked „X‟) opines that human blood

of Group „A‟ was found on the cotton wool swab, underwear, blood

stained gauze, the knife described as kirpan, but blood could not be

detected on Exhibits 5a and 5b, i.e., a T-shirt and the pant worn by the

appellant. As noticed above, the T-shirt and the pant worn by the

appellant were seized from house more than 48 hours after the

occurrence, whereas the knife was recovered from B-5, Brijpuri, where

the appellant had hidden the same. Recovery of the knife with blood

group of the deceased is an incriminating fact admissible under section

27 of The Evidence Act, 1872.

14. Learned counsel for the appellant is right in his submissions that

Rajinder (PW-1), who is appellant‟s neighbour has not supported the

prosecution case and was completely hostile, but this according to us

does not deviate or entitles the appellant to claim acquittal, as the

prosecution has been able to prove their version by circumstantial

evidence. We do not find any merit in the contention of the appellant

that his family members were not examined and have not deposed as

witnesses. The reason is obvious that the family members of the

appellant were reluctant and did not want to depose against the

appellant. They were trying to cover up the occurrence and protect the

appellant. The deposition of Vishnu Dutt and Krishan Gopal, PWs-10

and 11 does show and disclose motive and the cause which led to the

occurrence. However, as PWs-10 and 11 were not present at the spot

or the place of occurrence, their depositions to the said effect is

inadmissible and has to be ignored.

15. Abscondence of the accused does not necessarily lead to an

assertive or affirmative conclusion regarding guilt of an accused as an

innocent person, who is not guilty, may abscond in a state of panic to

try and evade arrest. Abscondence by itself, therefore, may not

establish by implication the guilt, as preservation instinct is normal and

has to be given due cognizance. However, in the facts of the present

case and on a holistic examination of the entire circumstantial

evidence, we feel abscondence is a relevant factor, though not a

clinching factor as an independent fact. The reason is that the

deceased-Mukesh Kumar had suffered and died an unnatural death

with incised wounds caused by a sharp weapon on the ground floor of

the house/residence, which was occupied by the appellant and other

family members. Attempt was made by the family members of the

appellant to conceal and cover up the said occurrence by claiming that

the deceased- Mukesh Kumar had hurt himself in a fall from the first

floor. On physical inspection of the place of occurrence, the attempt to

obfuscate failed and ensconce did not work. There was a certain and

concerted attempt to conceal the crime and disguise it as an accident.

The attempt was made with the intention to protect and save a family

member, i.e. the appellant, who had absconded and concealed himself.

In such circumstances, the abscondence of the appellant is of some

relevance and is a factum, which cannot be ignored or treated as

inconsequential. In Matru v. State of U.P., (1971) 2 SCC 75 Supreme

Court observed:-

"19. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence."

Similar observations were made by the Delhi High Court in Kalloo

Passi v. State, CRL.A. No.413/2001 decided on 1st April, 2009:-

"16. It is settled law that mere absconding by itself does not necessarily lead to a conclusion of a guilty mind. The act of self-preservation is such that even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime. The act of absconding is no doubt a relevant piece of evidence to be considered along with other evidence but its value

would always depend on the circumstances of each case. For instance, the circumstance of abscondence can be extremely fatal if the prosecution is able to prove that the victim was last seen in the company of the accused and that the accused is absconding after the death of the victim. Normally, the courts are disinclined to attach much importance to the act of absconding, treating as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused."

16. In cases of circumstantial evidence, cumulative or combined

effect of all facts proved and established by the prosecution have to be

weighed to determine whether the prosecution version has been proved

beyond doubt and rule out of possibility of a third person being the

perpetrator. It should be shown and established on the basis of the

evidence read as a whole that the appellant/accused was the

perpetrator, who had committed the offence and ruling out possibility

of a third person. In the facts of the present case, we agree with the

conclusion reached by the trial court that the prosecution has led

cogent and has firmly established circumstances, which unerringly

point towards the guilt of the accused-appellant and the said

circumstances when taken cumulatively form a chain so complete that