Shiv Kumar vs State (Nct) Of Delhi
2014 Latest Caselaw 2141 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                  CRIMINAL APPEAL NO. 892/2009

                                       Reserved on : 20th February, 2014
                                       Date of decision: 30th April, 2014

       SHIV KUMAR
                                                        ..... Appellant
                         Through Mr. Sumeet Verma, Advocate.

                         Versus

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

Through Ms. Rajdipa Behura, APP for the State.

CORAM:

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

SANJIV KHANNA, J. :

By the impugned judgment dated 6th March, 2009, the appellant-

Shiv Kumar stands convicted for murder of Chander Pal and by an order of

sentence dated 9th March, 2009, he has been sentenced to imprisonment for

life and fine of Rs.10,000/-, in default of which, he has to undergo Simple

Imprisonment for six months. The impugned judgment also convicts the

appellant under Section 201 of the Indian Penal Code, 1860 (IPC, for short)

and the appellant has been sentenced to Rigorous Imprisonment for three

years and fine of Rs.2,000/-, in default of which, he was to undergo Simple

Imprisonment for one month. The sentences are to run concurrently and

benefit of Section 428 Cr.P.C. has been granted.

2. The conviction arises in charge sheet filed after investigation of FIR

No. 396/2003, Police Station Mangolpuri, Delhi.

3. The deceased-Chander Pal was admitted in Sanjay Gandhi Memorial

Hospital, Mangolpuri on 25th July, 2003 at 1.30 P.M. with stab wound in

the abdomen. This is proved from the MLC marked Exhibit PW-14/C,

which was proved by Dr. V.K. Jha (PW-14), who had identified signature

of Dr. Suresh Jaiswal on the said MLC. The MLC states that a stab wound

was noticed in the right hypochondrium and the size of the wound was 4

cm x 2 cm just lateral to midline. The patient was gasping for breath.

Pulse and blood pressure were not recordable.

4. Post-mortem of the dead body was conducted on 26th July, 2003 by

Dr. R.K. Punia (PW-11) and he recorded external injury in the form of

obliquely placed stab incised wound over the front of the right side

abdomen 2.7 cm x 1.1 cm and abdominal deep cavity. The track of the

wound showed that the injury had perforated the skin, abdominal muscle,

peritoneum and penetrated the liver. Peritoneum cavity contained about

3000 ml of blood and blood clots. The said injury was ante mortem in

nature, fresh and sufficient to cause death in the ordinary course of nature.

Death was due to shock and haemorrhage as a result of injury to the liver.

Thus, homicidal death of deceased-Chander Pal has been proved beyond

doubt and debate.

5. The first controversy pertains to the involvement of the appellant and

whether the appellant is responsible for the said injury, as held in the

impugned judgment.

6. On the said aspect, the State primarily relies upon the testimony of

Chiranji Lal, father of deceased-Chander Pal, who has deposed as PW-1.

PW-1 has testified that on 25th July, 2003, he along with his son Chander

Pal was present in his house, when at about 12.30 P.M. the appellant-Shiv

Kumar called out his son-Chander Pal, upon which Chander Pal went

outside and both of them started quarrelling loudly. As a result, PW-1

came outside the house. The appellant at that time was stating that a day

earlier Chander Pal had escaped but today he would not leave but kill him.

The appellant caught hold of the neck of Chander Pal by one hand and

gave a stab blow to him in his abdomen. Chander Pal started bleeding

profusely. PW-1 tried to chase and catch hold of Shiv Kumar, but he felt

giddiness and fell down. A rickshaw puller had taken deceased Chander

Pal to the hospital where he eventually died. Statement of Chiranji Lal

(Exhibit PW-1/A) was recorded by the police and thereupon FIR was

registered. He identified the dead body of the deceased, which was also

handed over to him for cremation after post-mortem.

7. In his cross-examination, Chiranji Lal (PW1) has stated that the

appellant-Shiv Kumar used to reside near his house. He deposed that

Chander Pal, his son had not gone for his duty on 25th July, 2003 and he

was present in the house. He has further stated that by the time he reached

the spot, the appellant had already given a knife blow in Chander Pal‟s

adbodmen and, therefore, he had no chance to save him. The quarrel had

taken place at a distance of 10 to 12 paces from his house. After the

incident, he heard the appellant but he became unconscious and after half

an hour he regained consciousness and went to the hospital.

8. SI Mahesh Kumar (PW-5) has stated that on 25th July, 2003 he along

with Constable Rajpal Singh (PW-2) went to Sanjay Gandhi Memorial

Hospital where Chander Pal was admitted and was undergoing treatment.

However, he died at about 2.15 P.M. and his MLC was prepared. They

then recorded the statement of Chiranji Lal (PW-1), father of the deceased

and thereafter, FIR under Section 302 IPC was registered. PW-5 in his

cross-examination has stated that he reached the hospital at 1.25 P.M. and

Chiranji Lal met him only after 2.15 P.M. He had sent Constable Rajpal

Singh with rukka at about 4.30 P.M. and he returned with a copy of the FIR

at about 5.30 P.M. Similar deposition has been made by Constable Rajpal

Singh (PW-2) regarding recording of statement of Chiranji Lal (PW-1),

writing of rukka by SI Mahesh Kumar and receipt of copy of the FIR. PW-

2 has further deposed with regard to lifting of blood stained earth control

from the spot, which was seized vide memo Exhibit PW-2/A.

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

there is no explanation or justification for the prosecution to not examine

Ahibaran Singh S/o Ram Singh, resident of Budh Vihar, Sultanpuri, the

name mentioned in the MLC Exhibit PW-14/C of Sanjay Gandhi Memorial

Hospital, Mangolpuri. Chander Pal was brought to the hospital by

Ahibaran as recorded in the said MLC. This factual position is also

mentioned in DD No. 18A (Exhibit PW-5/A). The said DD entry was

made at Police Station Mangolpuri and marked to SI Mahesh Kumar (PW-

5) for inquiry/investigation. However, there are good and cogent reasons

why we feel that the appellant is not entitled to acquittal for the said

reason. The Investigating Officer Azad Singh (PW-15), who was then the

Additional SHO, Police Station Mangolpuri was not cross-examined on the

said aspect. Moreover, we are satisfied that Chiranji Lal (PW-1) has

rightly deposed as to the occurrence on 25th July, 2003. We have already

referred to PW-1‟s deposition in detail. In the cross-examination, PW-1

had stated that he used to work as a watchman at night and come back

home at 10 A.M. from his duty. His presence in the house at the time of

occurrence, i.e., 12.30 P.M. on 25th July, 2003 was, therefore, natural and

normal. It has not been debated and questioned before us that the actual

stabbing and occurrence had taken place just outside the building/property

where the deceased and PW-1 used to reside. The said factual position has

been proved and established beyond doubt from the unscaled and scaled

site plans marked Exhibit PW-15/A and Exhibit PW-4/A respectively. The

photographs of the place of occurrence, which also show the blood stains,

have been marked Exhibit PW-7/A1 to A4. The said site plans were

proved by SI Manohar Lal (PW-4) and Inspector Azad Singh (PW-15).

The photographs were taken by Constable Dalvir Singh (PW-7), who had

deposed to the said effect. SI Manohar Lal (PW-4), Constable Dalvir

Singh (PW-7) and Inspector Azad Singh (PW-15) were not cross-examined

on the question of the site plans both unscaled and scaled and the

photographs.

10. However, we agree with the counsel for the appellant that Chiranji

Lal (PW-1) may not have seen the actual occurrence, i.e., when the stab

wound was inflicted and PW-1‟s statement to the extent that he had seen

the actual incident of stabbing is possibly an exaggeration, as in fact he

came outside the house only after hearing noise and by that time injury had

been inflicted on Chander Pal. PW-1 in his examination in chief had

claimed that he had seen the actual occurrence in which the knife blow was

given but in his cross-examination he had accepted that when he had

reached the spot, the accused had given the knife blow in the abdomen of

his son. It is, therefore, probable that on hearing loud noise, PW1 came out

but by then the appellant had already given the knife blow to Chander Pal.

PW-1 tried to chase the appellant but in the meanwhile he became giddy

and fell down. At this stage, it would be relevant to state that Chiranji Lal

(PW-1) at the time of his court deposition on 9 th December, 2004 was

about 65 years old and, therefore, at the time of occurrence was about 64

years of age. In the cross-examination, PW-1 confirmed that he had

become unconscious and stated that he regained consciousness after about

an hour and then went to the hospital.

11. In the MLC (Exhibit PW-14/C), name, parentage, age, residential

address etc. of deceased Chander Pal is mentioned. We do not know who

had given these details before they were recorded in the MLC (Exhibit

PW-14/C). Possibly they had been given by Ahibaran, the rickshaw

puller, who had brought the deceased to the hospital as the name of the

deceased is also mentioned in DD No. 18A (Exhibit PW-5/A) recorded at

Police Station Mangolpuri at about 1.10 P.M. and this was the first entry or

recording in the Police Station with regard to the occurrence. However,

how and when details came to the knowledge of Ahibaran could have been

best explained by the said person, but this should not deter us from

completely disbelieving the testimony of Chiranji Lal (PW-1). Chiranji

Lal (PW-1) had also mentioned that after the occurrence many persons had

collected at the spot. The occurrence had taken place right below the

residence of Chiranji Lal (PW-1) and the deceased Chander Pal. Persons

in the neighbourhood could have given the said details. It is also apparent

that the persons in neighbourhood did not come forward and volunteer to

make statements before the Investigating Officer, though from the said site

plans (Exhibits PW-15/A and PW-4/A) it is apparent that the street in

question was frequented and had food stalls. The loud noise referred to by

Chiranji Lal (PW-1) would have compelled others to also look out and

inquire as to what was happening.

12. This brings us to the second primary issue in alternative argued by

the appellant, i.e., the challenge to conviction of the appellant under

Section 302 IPC and the submission that at best conviction under Section

304 Part-I IPC is made out. Both sides accept that it is a case of single

blow and this is a relevant factor but not the determinative circumstance to

decide whether the offence would be brought under Section 302 or Section

304 Part I or II, IPC. A single blow cannot always imply or mean

conviction under Section 304 Part I or II. The difference between Sections

302 and 304 IPC has already been explained and elucidated in the locus

classics Virsa Singh versus State of Punjab, AIR 1958 SC 465 and in the

subsequent decisions of the Supreme Court in Jai Prakash versus State

(Delhi Administration), (1991) 2 SCC 32, State of Karnataka versus

Vedanayagam, (1995) 1 SCC 326 and Arun Nivalaji More versus State of

Maharashtra, AIR 2006 SC 2886.

13. In order to decide whether the case falls under thirdly of Section 300

or Section 304 Part I/II IPC, we would refer to a decision of the Supreme

Court in Pulicherla Nagaraju versus State of A.P., (2006) 11 SCC 444,

wherein it has been elucidated:-

"18. The third contention relates to the question whether the offence is a murder punishable under Section 302, or culpable homicide not amounting to murder punishable under Section 304 Part II. The evidence shows that there was a long-standing enmity between the families of the two brothers (A-1 and PW 2). There was a quarrel on 24-4-1999 in respect of PW 2 taking a tractor through the land of A-1. There was another quarrel when A-1 allegedly removed the fence and PW 1 and PW 2 questioned A-1 as to why he removed the fencing, which led to an altercation between A-1 and A-3 on the one hand and PW 1 and PW 2 on the other about half an hour before the stabbing of the deceased, which resulted in injuries to PW 1 and PW 2. After the second incident, Purushotham Reddy followed by PW 1 and PW 2 was going towards A- 1's house to protest against A-1 and the appellant causing injuries to PW 1 and PW 2. Neither Purushotham Reddy nor PW 1 and PW 2 were armed with any weapon. There was no indication that they intended to cause any physical harm to the accused, or that they intended to retaliate for the earlier incident. The nature and size of the weapon used by the appellant (barisa, which is a big size dagger), the force with which the weapon was used, the part of the body where the injury was caused, just below the neck, a vital part of the body, the nature of the injury, stab wound measuring 3 cm × 5 cm × 12 cm, resulting in instantaneous collapse leading to death, leaves no room to doubt that the intention of the appellant was to cause the death or, at all events, cause bodily injury, which is sufficient in the ordinary course of nature to cause death."

(emphasis supplied)

14. Dealing with Exception 4 to Section 300 in Mahesh Balmiki versus

State of Madhya Pradesh, (2000) 1 SCC 310, it has been observed:-

"7. Now Exception 4 to Section 300 IPC is in the following terms:

"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."

The requirements of this exception are:

(a) without premeditation in a sudden fight;

(b) in the heat of passion upon a sudden quarrel;

(c) the offender has not taken undue advantage; and

(d) the offender has not acted in a cruel or unusual manner.

Where these requirements are satisfied, culpable homicide would not be murder."

15. Applying the aforesaid parameters and tests in the present case, we

feel that benefit of doubt should be given to the appellant and the

conviction of the appellant should be converted from „murder‟ to „culpable

homicide not amounting to murder‟ under Section 304, Part I IPC. It is an

apparent case of sudden quarrel, the cause and reason for which remain

unknown, an aspect not necessary for determining applicability of

Exception 4. MLC (Exhibit PW-14/C) also records and refers to smell of

alcohol when the deceased Chander Pal was brought to the hospital. This

fact has not been deposed or stated by Chiranji Lal (PW-1) in his court

deposition.

16. On the nature of the injury, we have evidence in the form of post-

mortem report (Exhibit PW-11/A) and testimony of Dr. R.K. Punia (PW-

11) to the effect that the injury was ante mortem and fresh and sufficient to

cause death in the ordinary course of nature. The cause of death was shock

and haemorrhage as a result of injury to the liver. Regarding the question

whether this was the intended injury, Chiranji Lal (PW-1) has deposed that

after hearing a loud noise he came out and heard the appellant saying that

Chander Pal had escaped a day earlier but today he would not leave him.

He then caught hold of the appellant from his neck by one hand and gave

stab blow in the abdomen with the other hand. This, as we have noted

above, appears to be an exaggeration and probably PW-1 had not seen the

actual occurrence, as by the time he came down the actual stab wound had

been delivered in view of what has been stated by PW-1 in his cross-

examination, i.e., that when he reached the spot, the appellant had already

given knife blow. What had by then transpired and happened outside

before the knife blow was given is not on record.

17. The weapon of offence has not been recovered in the present case as

the appellant had absconded and was arrested after nearly two months on

22nd October, 2003. Recovery of a knife is however attributed and claimed

from the appellant. As pointed out by the trial court, the recovery of knife

had resulted in registration of FIR No. 666/2003 under Section 399/402

IPC, Police Station Mangolpuri. Chiranji Lal (PW-1) could not identify

the weapon of offence nor did it have any distinctive mark. It has been

observed in paragraph 29 of the impugned judgment that the disclosure

statement (Exhibit PW-6/A) is inadmissible and hit by Section 25 of the

Evidence Act and no recovery could be attributed to the said disclosure

statement under Section 27 as a knife had already been recovered prior to

recording of the disclosure statement.

18. We agree with the counsel for the appellant that there are

circumstances to indicate that there was no pre-meditation or a plan to stab

the deceased. Chiranji Lal (PW-1) has deposed that appellant had called

out and thereupon the deceased Chander Pal had himself gone out of the

house to talk to the appellant. Chiranji Lal (PW-1) did not follow the

deceased and did not ask or prevent the deceased from going out or

speaking to the appellant. PW-1 did not, suspect that there would be

violence and had only gone out of the house when he heard loud noise or

spat outside and when he reached there, the appellant had stabbed the

deceased in the abdomen.

19. From the deposition of PW-1 and the inference drawn by us, it is

clear that they were on talking terms. Even if they were not friendly, the

appellant and the deceased were not antagonistic. They were known to

each other and not apprehensive and did not suspect each other. We are

not aware as to the cause of the quarrel or the differences between the

appellant and the deceased. The appellant, as per the prosecution version

and we accept, had come to the house of the deceased to speak to him and

had called him outside for a conversation, when the occurrence took place.

There was no proved past history of violence or of quarrel between them.

PW-1 has referred to a sentence spoken by the appellant, which we have

disbelieved. It is also apparent that PW-1 has not given any reason for the

differences between the appellant and the deceased.

20. The real issue to look into would be, did the appellant take undue

advantage and act in a cruel or unusual manner? Secondly, did the

appellant intend to cause the said injury in the abdomen?

21. Judgment of the Supreme Court in Virsa Singh (supra) and other

decisions do indicate that the statement of the accused under Section 313

Cr.P.C. is of crucial importance and relevance as it could help establish and

prove how the appellant accused got possession of weapon of offence and

in what circumstances and how the injury was caused. Statement of the

appellant under Section 313 Cr.P.C. does not help and assist the appellant

in the present case as he has neither stated nor indicated how he came into

possession of the knife or as to the injury caused. In the absence of

explanation, the appellant/accused is entitled to rely upon evidence and

material produced by the prosecution and in some cases, failure to cite and

produce relevant/material evidence without justification may lead to

adverse inference. In the facts of the present case, it is noticeable and it

has been proved that the deceased was under the influence of

liquor/alcohol. The issue is whether the prosecution had failed and faulted

in collecting, ascertaining and producing material evidence and effect

thereof. We have concluded and held that Chiranji Lal (PW1) had not

seen the actual occurrence but had reached the spot after the stab wound or

injury was caused. The occurrence had taken place in a street outside. It is

understandable and one can appreciate the problem and the difficulty of the

police as public witnesses who might have witnessed the actual occurrence

had not come forward and accepted that they had seen the occurrence and

therefore failure to cite them cannot be a ground to convert the conviction.

But, there is evidence and material to show that one rickshaw wala named

Ahibaran had brought the deceased Chander Pal to the hospital. He had

given the address and parentage of Chander Pal in the MLC. Address and

other details of Ahibaran stand recorded in the MLC. However, the said

Ahibaran has not been examined by the police and there is no explanation

regarding the same. In fact, Ahibaran was not cited as a witness and his

statement under Section 161 Cr.P.C. was also not recorded.

There is no reason or ground why Ahibaran was not questioned and it was

not ascertained whether he had seen the occurrence or not. It was natural

and normal to ask and ascertain details from Ahibaran. It is probable that

Ahibaran had seen the occurrence but the said witness has neither been

produced nor has he deposed about the occurrence. In the present case,

therefore, the prosecution had necessary information and could have

without being put to impossibility or even disproportionate labour and

inconvenience, established and produced evidence as to the actual

occurrence by ascertaining the facts and producing Ahibaran. To this

extent, therefore, the prosecution has failed and, thus we feel that benefit of

the said failure to the limited extent of converting the conviction of the

appellant from Section 302 IPC to Section 304-B, Part I, IPC can and

should be given. Thus, though the appellant has been silent in his

statement under Section 313 Cr.P.C., we are inclined to give benefit of

doubt to him in view of the aforesaid factual matrix.

22. In view of the aforesaid discussion, we uphold the finding of the

Trial Court that the appellant was the perpetrator who had caused

injuries/stab wound resulting in death of Chander Pal, however, we convert

his conviction from murder under Section 302 IPC to Section 304 Part I,

IPC. We also uphold the conviction of the appellant under Section 201

IPC as he had caused evidence of commission to disappear with the

intention to screen himself from legal punishment. The weapon of offence

in the present case was concealed or made to disappear and has not been

recovered.

23. On the question of quantum of sentence, we uphold the sentence

awarded to the appellant under Section 201 IPC i.e. Rigorous

Imprisonment for three years and fine of Rs.2,000/-, in default of which, he

has to undergo Simple Imprisonment for one month. The appellant has

already undergone the said sentence of imprisonment, substantive and in

default. On the question of quantum of sentence under Section 304 Part I,

IPC, we notice that the appellant has already undergone sentence for more

than 10 years, 3 months and 25 days as on 18th February, 2014. He had

earned remission of 8 months and 7 days. In these circumstances, we

direct the appellant would be released on the sentence undergone for the

offence under Section 304 Part I, IPC and the remission earned shall be

regarded as period spent in jail in lieu of fine of Rs.5,000/-. Both sentences

shall run concurrently and benefit of Section 428 Cr.P.C. stands granted.

24. The appeal is disposed of.

(SANJIV KHANNA) JUDGE

(G.P. MITTAL) JUDGE APRIL 30th, 2014 VKR/kkb