Sunil Kumar & Ors. vs Govt Of Nct Of Delhi
2014 Latest Caselaw 698 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI


                                  Date of decision:- 5th February, 2014
+                  CRIMINAL APPEAL 413/1998

      SUNIL KUMAR & ORS.                         ..... Appellant
               Through    Mr. G.S. Sharma and Mr. R.A.
               Sharma, Advocates.

                         versus

      GOVT OF NCT OF DELHI                  ..... Respondent
               Through  Ms. Rajdipa Behura, APP.

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

       SANJIV KHANNA, J.

The third appellant, namely, Om Prakash @ Bengali

brother of the other two appellants Sunil Kumar and Om Babu

@ Pappu expired during the pendency of the present appeal.

The present appeal, therefore, has been pressed on behalf of

Sunil Kumar and Om Babu @ Pappu.

2. The two appellants along with the deceased appellant Om

Babu @ Pappu by the impugned judgment dated 17th September,

1998 stand convicted under Section 302 read with Section 34

Indian Penal Code, 1860 (IPC) for murder of Tejpal at about

8.00-8.30 p.m. on 2nd October, 1992. By order of sentence dated

19th September, 1998, the two appellants have been sentenced to

life imprisonment for the offence under Section 302 read with

Section 34 IPC and fine of Rs.5,000/- each. In default of

payment of fine, the appellants have to undergo Rigorous

Imprisonment for three months.

3. On the question of involvement of the appellants, we have

testimonies of two eye witnesses Sukhbir Singh (PW-10) and

Ved Prakash (PW-12). FIR was also registered on the basis of

statement made by PW-10, which has been marked Ex.PW-

10/A. In the said complaint, name of the two appellants is

mentioned. PW-10 and PW-12 in their Court deposition have

clearly named the two appellants and that they along with Om

Babu @ Pappu and a fourth person were present at Nehar Pul,

100 feet Road at a meat/kharora shop. PWs-10, 12 and the

deceased had also gone to the said shop to eat „kharoras‟.

Altercation took place between them as appellant Sunil Kumar

had asked kharorewala to serve him kharora first, which was

objected to by Sunil. PW-10 and PW-12 have deposed that this

led to scuffle between Sunil and deceased Tejpal. Om Prakash

also joined and held the deceased by his neck (Gireban). The

third appellant Om Babu, who had expired, caught hold of

Tejpal by his right hand. Thereupon, as per PW-10 and PW-12,

Sunil took out a knife from his right side pant pocket and gave

5-6 knife blows to Tejpal. These blows were given on the left

shoulder, right shoulder and the chest. PW-10 remained at the

spot and PW-12 went to call Arvind, who has appeared as PW-

4. Three of them took Tejpal to GTB Hospital where doctor

declared the injured as brought dead. Police came to the

hospital and statement of PW-10 i.e., the complaint Ex.PW10/A

was recorded, which is signed by PW-10. PW-10 has deposed

that on 3rd October, 1992, he was summoned by the police. He

along with Ved Prakash (PW-12) and police had gone to the

house of Sunil. The two appellants Sunil and Om Babu @

Pappu along with Om Prakash were arrested while standing at

the corner of the street. It may be noted that no recovery

pursuant to the alleged disclosure statements was made. Two

more persons, namely, Sanjay and Rajjan were also arrested and

charge sheeted. Recovery of the alleged knife used is attributed

to the disclosure statement made by Sanjay. Trial court has

acquitted Sanjay and Rajjan by granting them a benefit of doubt.

Trial court disbelieved recovery of the knife at the behest and

pursuant to the alleged disclosure statement of Sanjay and has

also doubted the use of the said knife in the offence.

5. At this stage, we only record that the State has not

preferred any appeal against acquittal of Sanjay and Rajjan.

Findings recorded by the trial court regarding the to knife will be

examined subsequently.

6. Arvind (PW-5) has deposed that on 2nd October, 1992 at

about 8 p.m. he was present near Babarpur Terminal, when Ved

Prakash (PW-12) told him that some persons were beating

Tejpal. Thereupon, he went to Nehar Pul, 100 Feet Road and

found Tejpal in an injured condition. They i.e. Arvind (PW-5),

Sukhbir Singh (PW-10) and Ved Prakash (PW-12) took Tejpal

to GTB Hospital, where the doctors declared him as brought

dead. In the cross-examination, PW-5 has stated that Ved

Prakash (PW-12) and Sukhbir Singh (PW-10) did not tell him

the names of the persons, who were beating Tejpal. We do not

think that the said assertion made by PW-5 in the cross-

examination in any way negates the version given by PW-10 and

PW-12 as to the involvement of the appellants as perpetrators.

The reason is obvious as the name of the appellants are

mentioned in the complaint Ex.PW10/A, which was recorded at

11.15 p.m. Statements made by PW-10 and PW-12 in framing

the two appellants as perpetrators are credible and reliable.

7. Our attention is drawn to the cross-examination of the first

Investigating Officer SI Murari Lal (PW-14), who had deposed

in the cross-examination that he did not seize clothes worn by

the witnesses because they were not blood stained. It is

highlighted that the deceased was taken to the hospital as per the

version of PWs-5, 10 and 12 in a three-wheeler scooter and,

therefore, in normal course there should have been blood stains

on the clothes worn by them. It is accordingly submitted that

PWs-5, 10 and 12 had not taken the deceased to the hospital.

We are not inclined to accept the said submission, though there

appears to be some lapse on the part of the first Investigating

Officer in not seizing the clothes. DD No.18A was recorded at

9.25 p.m. and the aforesaid three witnesses met PW-14, SI

Murari. There are several reasons and grounds why we should

accept presence of PW-10 and PW-12 at the spot and that they

along with PW-5 had taken the deceased to the hospital. PWs-5,

10 and 12 have deposed that they met the police officers in the

hospital. Similar statement was made by PW-14, who has stated

he met three of them in the hospital and thereafter they went to

the spot in question. Thereupon, PW-14 recorded statement of

Sukhbir (PW-10) at about 9.50/9.55 p.m. and the rukka was

completed by 10.50/10.55 p.m. The ocular statements made by

the said witnesses to the said effect, inspires confidence and

does not deserve rejection for the aforesaid lapse by the

Investigating Officer in collecting their clothes in collecting

their clothes. The version given by PWs-10 and 12 does not

reveal any past history of enmity or prior history. As already

noted above, name of the two appellants finds mention in the

complaint Ex.PW-10/A.

8. The next question which arises for consideration is

whether the appellants have been rightly convicted under

Section 302 IPC or their conviction should be converted into

Section 304, Part-I as submitted on behalf of the appellants.

Reliance is placed upon Exception 4 to Section 300. Learned

Additional Public Prosecutor on the other hand relying upon the

statements made by PW-10 and PW-12 submits that the

appellant Sunil was carrying a knife in his pocket and had given

multiple stab wounds to the deceased and, therefore, the trial

court is justified in convicting the appellants under Section 302

IPC.

9. As far as the injuries suffered by the deceased are

concerned, his MLC has not been exhibited or proved.

However, we have on record the post mortem report, Ex.PW8/A,

which was proved by Dr. S.K. Verma (PW-8). He has referred

to seven wounds on the body of the deceased including

abrasions. There is also reference to five incised wounds and it

is indicated that cause of death was shock due to antemortem

injury No.5 caused by a sharp edged weapon. The said injury

was sufficient to cause death in the ordinary course of nature

collectively and independently. Wound or injury No.5 was on

the right side of the chest, above the right nipple and was about

9 cm deep. The exact details of the said wound, as per the

deposition of PW-8, are as under:-

"5. 1 stab wound places upside down of size 2.5 × 1.1" cms × cavity deep placed in midclomicular line on right side chest enteriroly 6 cms above the right nipple and 8 cms lateral to midline going ertically backwards in the 2nd intercostals space cutting skin, intercostals muscles pkura and then entering into the anterior surface of upper lobe of right lung and coming out of posterior surface. Rt. Lung was collapsed. The wound was spindle shaped with an angle more acute then other. Total length of the wound was appr. 9 cms. Blood was present in and around the wound. Both angles of the wound were acute."

10. PW-10 and PW-12 have both deposed that the knife was

taken out by appellant Sunil. However, as noticed above, the

trial court in the impugned judgment has disbelieved the

recovery of knife pursuant to the alleged disclosure statement of

accused Sanjay, who was acquitted giving the following

reasons:-

"37. It was next argued by the ld. Counsel

that independent witnesses were not joined at the time of the arrest of any of the five accused and the recovery and that the arrest and recovery of the weapon of offence is only a concoction. PWs Sukhbir and Ved Prakash did accompany the police party at the time of the arrest of the five accused and the recovery. It is true that they may not be termed as independent witnesses now and at the stage of arrest and recovery, but they did not lose any credit merely because they are also the eye-witnesses of the incident specially when the defence never suggested to them that those witnesses had any kind of animosity against any of the accused persons. I may also add here that joining of persons from the public, otherwise, not connected within the occurrence, is a very very hard nut to crack these days as public persons generally stay away from joining any such proceedings specially when they know that they would be required to depose against some suspected criminals for a serious offence. As far as arrest of accused persons and recovery of weapon is concerned, I do not see any discrepancies or inconsistencies in the statements of the witnesses, however, I do seem to be agreeing with the next defence contention that the recovery of the weapon of offence in the given circumstances is actually discovery of an unknown or hidden fact since it stood admitted by all the related witnesses that the place of the alleged recovery was accessible to all in a normal manner, the recovery spot situated just near a common pathway and the handle of the dagger/knife was visible even without disturbing anything around it and the grass was also of the height of 1". I do not think it can be said to be any safe place for someone to hide or dispose of the knife, particularly when its handle is visible- being above the ground and the grass. It was a fact which could be known to any person, recovery point being freely accessible and a place which was frequently visited by nearby residents and other persons. I would not attach much

importance to this recovery as this knife does not connect, in any particular and specific way, it‟s having been used in the crime as the CFSL report failed to analyse the blood group seen thereon. The opinion given by the Doctor, who conducted post mortem on the body of the deceased and also examined this knife and the cuts mark found on the clothes of the deceased, would also not be anyway material as far any links between knife Ex.P1 and the occurrence or any accused is concerned, since the opinion only reads that such cuts could be caused by a knife of the given type, and, we can take a general note that knife Ex.P1 cannot be the only knife of its kind and therefore I do not see that prosecution can got any benefit out of the recovery of this knife at the alleged instance of accused Sanjay. Defence contention that weapon of offence could not be connected and linked with the crime has to fail despite my view to keep the weapon of offence out of the satisfaction of the requirement of Section 27 Indian Evidence Act which I so hold simply as a matter of abundant caution. I may also add here that even in case there had been no recovery of the weapon of offence then also a benefit, otherwise, could not have gone to any of the accused as non-recovery of the weapon of offence, other evidence remaining acceptable, cannot be considered fatal for the prosecution.

11. At this stage, it would be important to refer to the lapse

pointed out by the learned counsel for the appellants. It is stated

the Kharorewala was not cited as a witness and even his

statement under Section 161 of Code of Criminal Procedure,

1973 was not recorded. We do not think that the appellants can

be acquitted for the said reason or this creates doubt as to

whether the appellants were the actual perpetrators. However,

the failure of the prosecution to examine the Kharorewala does

leave certain doubts and relevant unanswered on the aspect

relating to whether the conviction should be under Section 304,

Part-I or 302 IPC. SI Murari Lal (PW-14), the first Investigating

Officer in the cross-examination was asked whether he had met

Kharorewala on return to the spot, but he denied the said

suggestion. He claimed that he did not come to know the name

of Kharorewala even thereafter till 4th October, 1992, when

investigation was taken over by the SHO. However, he has

accepted as correct that some hawkers and rickshawalas used to

stand around and in the near vicinity of the spot, but not always.

He also stated that he did not meet any other person who could

give details of the incident corroborating the version of the

complainant.

12. Sukhbir Singh (PW-10) in his cross-examination had

stated that he did not know the name of the Kharorewala, but had

accepted that they had visited the Kharorewala‟s shop earlier also.

Kharorewala used to reside somewhere in Maujpur, but he had

not seen his house. PW-10 accepted that he came to know about

Kharorewala‟s address during conversation on their earlier visits.

He also accepted that they were two persons in the Kharorewala‟s

shop. One of them was the Kharorewala himself and other person

was his helper, who used to wash utensils. The Kharoewala had a

fixed and permanent place where he used to station his „rehri‟ on

the patri. PW-12 too accepted that Kharorewala was present at

the shop at the time of incident.

13. The second Investigating Officer, Inspector Bal Kishan to

whom PW-14 had handed over investigation, appeared and

deposed as PW-11. He has taken over the investigation of the

case on 5th October, 1992. He has not deposed and referred to any

inquiries or attempt made by him to locate the Kharorewala and

record his statement. The aforesaid aspect becomes relevant as

knives are normally kept and used at meat shops. It is apparent

from the testimonies of PW-10 and PW-12 that there was no pre

meditation and the appellants did not have any earlier history of

quarrel with Tejapal. The appellants and Tejpal happened to be at

Kharorewala‟s shop to eat cooked meat/kharoras. Tejpal had

demanded that he should be served first, which was objected to by

Sunil. For the said small cause/dispute, scuffle took place

between Sunil and Tejpal. PWs-10 and 12 have deposed that Om

Babu had joined in and caught Tejpal by his neck. Sunil had

taken out a knife from his pocket and stabbed Tejpal. PW-10 and

PW-12 averred and stated that they remained spectators and did

not participate or prevent injuries being inflicted to Tejpal.

13. We are not inclined to accept the contention of the

appellants that the aforesaid version given by PW-10 and PW-12

appears to be an exaggeration and may not reveal the exact and

true nature of the actual occurrence. We have some doubts

whether we should accept the testimonies of PW-10 and PW-12

regarding the fact whether Sunil was carrying a knife in his

pocket. As per the police version, length of knife in question was

about 9.5 inches including blade of 3.9 inches as mentioned in

Ex.PW-10/K. It is possible, as pleaded and submitted, that knife

may have been picked up from the spot itself. It may be noted

that no recovery pursuant to the alleged disclosure of the two

appellants was effected. As noted above, the trial court has

disbelieved recovery of knife pursuant to the disclosure statement

made by Sanjay, who has been acquitted. The witnesses PW-10

and PW-12 remained unhurt and were not touched.

14. Keeping in view the aforesaid facts, we are inclined to

accept the contention of the appellants that the occurrence in

question was result of a sudden fight or quarrel and not due to pre

meditation and prior planning. In the heat of passion, while

grappling was going on, injuries were caused. There was only one

major injury which had resulted in death of Tejpal. In these

circumstances, we apply Exception 4 to Section 300 and convert

the conviction of appellants from Section 302 IPC to Section 304,

Part-I.

15. The last question relates to quantum of sentence. Tejpal

had died as a result of the injuries caused. Order sheets in the

appeal reveal that Sunil was directed to be released on suspension

of sentence vide order dated 1st October, 2002 followed by order

dated 7th November, 2002, after he had already undergone

incarceration of 6 years 8 months and 28 days as on 28th August,

2002. Appellants Om Babu and Om Prakash were also released

subsequently, pursuant to the order of suspension of sentence

dated 12th May, 2003, wherein it is recorded that they had

undergone imprisonment of almost 5 years in jail. This order was

followed by another order dated 27th May, 2003, by which the

amount of surety, which was required to be furnished for bail, was

reduced. This shows that the appellant Om Babu had remained in

jail at least till 27th May, 2003, though it appears that he was

granted bail during trial.

16. Normally for the offence in question, the two appellants

deserve a long sentence, but keeping in view the fact that they

were released on suspension of sentence and have been on bail for

more than 10 years and are not involved in any other case, we are

inclined to sentence the appellants to the period already

undergone. The appellants, however, will pay fine of Rs.5,000/-

each imposed by the trial court within 45 days from today and in

default, will have to undergo Rigorous Imprisonment of two

months.

The appeal is accordingly disposed of.

SANJIV KHANNA, J.

G.P. MITTAL, J.

FEBRUARY 05, 2014 NA