Om Parkash @ Ram Kirpal vs State
2014 Latest Caselaw 907 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CRIMINAL APPEAL NO. 384/1998

                                Reserved on: 13th January, 2014
%                           Date of Decision: 19th February, 2014


OM PARKASH @ RAM KIRPAL                            ..... Appellant

                    Through     Mr. Ashok Kumar Jha, Advocate.

                          Versus

STATE                                          ..... Respondent

                    Through     Mr. Rajat Katyal, Additional Public
                    Prosecutor.


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

SANJIV KHANNA, J:

Om Prakash, the appellant stands convicted under Sections 302

and 324 of the Indian Penal Code, 1860 (IPC for short) by the

impugned judgment dated 30th May, 1998 arising out of FIR

No.217/1991, police station Dabri. By order on sentence dated 30th

May, 1998, the appellant has been sentenced to life imprisonment and

fine of Rs.500/- for the offence under Section 302 IPC. In default of

payment of fine, he has to undergo Simple Imprisonment for 15 days.

For the offence under Section 324 IPC, the appellant has been

sentenced to Rigorous Imprisonment for one year. The sentences were

to run concurrently and the appellant was entitled to the benefit of

Section 428 Code of Criminal Procedure, 1973 (Code, for short).

Baijnath was also tried along with the appellant but he has been

acquitted by the impugned judgment. State has not preferred any

appeal against his acquittal and, therefore, we are only concerned with

the order of conviction and sentence of Om Prakash.

2. Homicidal death of Mithu Rai in the intervening night of 11th

and 12th July, 1991 stands established and proved beyond doubt in

terms of testimony of Dr. Umed Singh (PW-7), who had proved the

MLC of Mithu Rai Ex. PW7/A prepared by Dr. Chaman. Dr. Chaman

had left service of DDU Hospital and his whereabouts were not known.

PW-7 has identified the signature and handwriting of Dr. Chaman and

has deposed that the MLC was prepared on 12th July, 1991 at 4.45 a.m.

The said MLC, marked Ex.PW7/A, records that Mithu Rai was brought

dead in the hospital at 4.45 a.m. on 12th July, 1991. However, the MLC

of Mithu Rai is infact marked Ex.PW-15/E. He was not breathing. The

pulse was not palpable and the heart beat was not audible. The pupils

were fixed and dilated. As many as 5 injuries were noticed on local

external examination. PW-7 has also deposed that Jawahar, who had

appeared as PW-11, was also medically examined by Dr. Ronu vide

MLC, Ex. PW7/B. Jawahar was brought to the hospital on 12 th July,

1991 at 4.45 a.m. with alleged history of assault and was discharged

after treatment. He had a clean lacerated wound (CLW) on the right

arm and elbow. The said injury, as recorded, was caused by a sharp

weapon and was simple in nature, though, PW-7 in his court deposition

had opined that this injury could have been caused by a blunt object, as

a sharp weapon when used, causes clean incised wound.

3. Dr. L.T. Ramani (PW-16) had conducted a post mortem on the

dead body of Mithu Rai and has delineated the following external

injuries:-

"1. An incised wound 3cm× into muscle deep near out end of right eye brow.

2. Bruise 6×5 cm on the right side front of chest midile (sic) to the right nipple.

3. An incised stab wound 3.5 c.m. × 1 cm×? on the right sternal border lower part. Upper middile (sic) end of the injry (sic) was acutely cut.

4. Incised wound 3.5 c.m. ×? Vertically placed on the left coastal margin, upper part of the route showed bifurcation into actutely cut end.

5. An incised wound 1.5 c.m. into skin deep. The base of right thumb.

6. Defence cut between right middle and index finter (sic) 1 c.m. × skin deep.

7. Multiple abrasion 4" ×3" on the back of right shoulder.

8. Incised wound 3 c.m. ×1 c.m. × ? just above the right buttuck (sic), outer and was acutely cut.

9. Two incised wound 2 and 3 cm long into muscle deep on the back of left shoulder.

10. Incised wound 5 cm× two c.m. on the left axxilary (sic) wall, medile (sic) and was acutely cut.

11. 5 incised wound 2.5 to 4 c.m. long on the posterior aspect of the left side chest scattered over an area of 11× 8 c.m."

4. PW-16 has deposed that injuries were ante mortem. Injury Nos.

2 and 7 were caused by a blunt object, but all other injuries were

caused by a sharp weapon. Injury Nos.3, 4 and 11 were individually

sufficient in ordinary course of nature to cause death. Five wounds

described at Sr. No.11 were in chest and cavity deep. One of them

had cut the diaphragm, and the stomach. The depth of the said injury

was 12 cm. The remaining four had cut the left lung, which had

partially collapsed. Injury No.4 after cutting the coastal margins had

touched the liver. The total length of the cut on the liver surface was 3

cm and was 5 cm deep from the body surface. Injury No.3 had entered

the right chest cavity and continued downwards over the diaphragm

and liver. The total depth of this injury was 6 cm from the body

surface. Subsequently, the weapon of offence i.e. the knife, sketch of

which was marked Ex.PW3/B, was shown to PW-16 and he has

deposed that all injuries except injury Nos.2 and 7 were possible from

the said knife. He has stated that no blood was visible on the knife.

He proved the post mortem report marked Ex.PW16/A, signed by him

along with inquest papers etc.

5. On the question of involvement of the appellant, we have an eye

witness i.e. the son of the deceased, namely Ranjeet Kumar. He was

about 11 years old when his statement was recorded as PW1 in the

court on 19th April, 1993. This means that he was about 9 years old at

the time of occurrence. The trial court was conscious that it was

recording the statement of a child witness and, therefore, had put

questions to Ranjeet Kumar (PW-1) before recording his evidence.

PW-1 has stated that he was studying in third standard in NDMC

School, Mahavir Enclave, Part-II, Delhi. On the intervening night of

11th and 12th July, 1991, he was sleeping with his father on the same

cot in the gallery. He woke up when his father became uncomfortable

and struggled. He saw the appellant, who was present in the court,

sitting on his father‟s feet and giving knife blows. On raising alarm,

two tenants, Moti Lal and Sakal Dev Pandit came there. They

apprehended the appellant Om Prakash. Later on other neighbours

came to the spot and his father was taken to the hospital by Sakal Dev,

Surender and other persons. Police also came to the spot and recorded

PW-1‟s statement. PW-1 could not give the number of knife blows

given by the appellant, but stated that the knife blows were given in his

presence. In his cross-examination, he stated that he could not state the

time when police had reached the spot, but the police had come

approximately two hours after the incident. PW-1 stated that around

100 people had gathered and the police remained at the spot for about

one and a half hours.

6. Learned counsel for the appellant has submitted that it was dark

and, therefore, Ranjeet Kumar (PW-1) could not see the appellant. We

do not agree with the said contention. PW-1 has stated that the

appellant was detained/caught on the spot. Similarly, we do not agree

with the contention of the counsel that PW-1 was tutored. PW-1 has

stated that he did not know the name of the appellant but could identify

and thereafter identified the appellant. In the cross-examination, he

deposed that the appellant had disclosed that his name was Om

Prakash. He had never seen Om Prakash. The police officer had told

him that Om Prakash had a beard. He also deposed that the knife was

not recovered in his presence. PW1 has been truthful and did not

conceal facts from the court. This apart we find that PW1 testimony is

corroborated and affirmed by other witnesses as well as

documentary/material evidences.

7. Sakal Dev Pandit, who had appeared as PW-2, has deposed on

identical lines. He testified that he had woken up after hearing shouts

of Ranjit Kumar (PW-1) that dacoits were giving knife blows to his

father. He knew the father of PW-1. He switched on the light and

came running and saw that a person was giving knife blows to Mithu

Rai. The said person was the appellant Om Prakash. He raised alarm

and tried to intervene and in the process sustained injuries on his left

hand. Since he was not able to overpower the appellant, he ran out to

call others to overpower the appellant. The appellant tried to run away,

but in the meanwhile villagers had gathered at the spot with stones.

The appellant was apprehended near the hand pump by Davinder,

Siyaram and Jawahar. The appellant was trying to remove, handle of

the hand pump to hit them but did not succeed. Sakal Dev Pandit (PW-

2) took Mithu Rai to the hospital and on the way the police met them.

The knife was recovered by Davinder from underneath the Malba

(garbage). The appellant was arrested in his presence and his personal

search was undertaken vide memo Ex.PW2/B. In the cross-

examination, PW-2 has deposed that the police had come after half an

hour. At the time of the attack, he was a tenant and residing in the

property of the deceased. Mithu‟s son, Ranjeet Kumar raised alarm. He

recognized Om Prakash as the attacker. During the attack, he and the

other tenant Motilal also sustained a few knife blows. Subsequently the

accused was apprehended by the neighbours.

8. Davinder Pandit appeared as PW-3 and has similarly testified.

On hearing noise from Ranjeet‟s house (PW-1), he came running and

saw that the appellant was giving knife blows to Mithu Rai, Ranjeet‟s

father. Mithu Rai was lying on the bed and in the meanwhile Jawahar

(PW-11) also reached the spot and tried to apprehend the appellant. He

received a knife blow on his right arm. Sakal Dev Pandit was also

present at the spot when the villagers came there with stones in their

hands. The appellant tried to run away from the spot and hid the knife

underneath Malba (garbage). The appellant also tried to take out the

handle of the hand pump but was apprehended and overpowered. The

police came to the spot and the appellant was handed over to a police

constable. The knife was recovered from underneath the Malba

(garbage) and also handed over to the police. Knife was taken into

possession vide memo Ex.PW3/A. The knife was shown to PW-7 and

identified and consequently marked Ex.P1. He (PW-7) has proved the

sketch of the knife which was marked Ex.PW3/B. The appellant was

arrested in his presence.

9. Davinder Pandit (PW-3) was partly cross-examined on 18th

October, 1993, and examination-in-chief was recorded. Subsequently,

he had appeared as PW-8 on 16th November, 1993 and was cross-

examined on the said date. His primary deposition remains undented.

10. Siyaram (PW-6) has deposed on similar lines and has identified

the appellant as the culprit and perpetrator who had given knife blows.

PW6 had reached the house of Mithu Rai on hearing noise from there

at 3.00 AM at night. Mithu Rai was sleeping and blood was oozing out

and the person who caused the injury was running away while

brandishing the knife. Public started throwing stones on him and he

had seen the culprit throwing the knife in debris. The culprit was

overpowered and given beating. Police came and took him away.

Knife was recovered from the debris by Devender. Incriminating

material evidence was collected by the police. Culprit was Om

Prakash, whom PW6 identified in the court. In the cross-examination,

he had stated that he had not seen the appellant before and he had not

seen the appellant giving knife blows and has seen him bandishing the

knife. He identified the knife as P1.

11. The injured eye-witness Jawahar appeared as PW-11. PW11 has

deposed that the deceased was his neighbour and the occurrence had

taken place in the intervening night of 11th & 12th July, 1991. On

hearing noise "catch the thief", he had rushed out to his house and

found that 10 persons were present there. He tried to catch the thief

Om Prakash who was brandishing the knife in his hands. In the

process his hand got injured. Shakaldev tenant of Mithu Rai was

present there. He had also tried to catch the appellant and had suffered

injury. The appellant went outside and threw the knife in the debris.

The appellant tried to take out handle of the hand pump but the public

pelted stones and caught hold of him. Mithu Rai was taken to the

hospital but was declared brought dead. PW11 was also medically

examined. In the cross-examination, PW11 has stated that he had

heard the noise at 3.30 AM and earlier or before the said date, he had

never seen Om Prakash and no one was present with Om Prakash. He

had accepted that he had not seen Mithu Rai getting hurt or injured but

he got injured at the hands of Om Prakash. One of the suggestions

given to PW11 was that the appellant was not holding a knife but an

iron strip. He deposed that on the basis of the statement given by

master Ranjeet (PW-1), Rukka (Ex.PW1/A) was recorded and

subsequently the FIR was registered at about 9.35 a.m. In the „Rukka‟

the name of the two witnesses, namely, Sakal Dev Pandit and Jawahar

were also mentioned. Assertions and facts stated in the „Rukka‟ are

identical to the statements made by PW-1, the eye witness, PW-2, PW-

3, PW-6 and PW-11. It is possible that the actual stabbing may not

have been seen by Jawahar (PW-11) or even by Davinder Pandit (PW-

3) and Siyaram (PW-6), but this does not make any difference as they

reached the spot within minutes of the act of stabbing and at that time

the appellant was present there with the knife in his hand. Appellant

tried to flee but was apprehended and the knife was recovered from the

garbage.

12. This brings us to the statement of the police officers who had

visited the crime scene. SI Puninder Singh (PW15) had stated that on

12th July, 1991, on receipt of DD entry 24A at 5.30 AM, he had gone to

DDU Hospital and obtained MLC of deceased Mithu Rai who had

expired. He also obtained MLC of Jawahar who had been discharged

after treatment. He went to the place of occurrence i.e. at RZ297A

Mahavir Enclave at about 6.30 - 6.45 AM and met Ranjeet Kumar

(PW1) son of the deceased. Incriminating evidence etc. was collected

and seized. He had mentioned that Om Prakash was the accused.

Similar statement has been made by HC Ved Prakash PW18 who had

stated that on 12th July, 1991 he was posted at PS Dabri. At 5.30 AM,

he along with ASI Pulinder Singh went to DDU Hospital from where

they came to know that Mithu Rai had died and thereafter they came to

the site of crime at about 6 AM. Statement of Ranjeet Kumar (PW1)

was recorded by ASI Pulinder Singh who made an endorsement and

they went to Police Station for getting the case registered and came

back to the site of occurrence at about 10 AM. Incriminating material

and evidence at the spot was collected.

13. Another relevant and important police witness is PW13 HC

Braham Prakash who was posted as Duty Officer at P.S. Dabri, on 12 th

July, 1991. He has deposed that on the said date at 5.30 AM, the

appellant was brought before him and he prepared the injury sheet Ex.

PW11/A and had sent the appellant for medical examination through

Const. Anang Pal and Lali Ram. He was informed that the appellant

after giving knife blow to one person was running away but was

accosted after stones were thrown at him. On 13th July, 1991,

appellant was produced before Metropolitan Magistrate and police

remand was taken.

14. The case was investigated by Insp. Kapoor Singh (PW17) who

had gone to the site at about 9.30 AM when he met ASI Puninder

Singh. He also met the public witnesses and had recorded statements.

He had also obtained the MLC of appellant Om Prakash who had been

discharged from the hospital. At that time Om Prakash was already in

police custody.

15. Constable Anang Pal (PW-11)(sic)stated that he went to the hospital

along with Om Prakash with the injury sheet given by the Duty Officer

HC Braham Prakash. Appellant was admitted in Safdarjung Hospital

and subsequently discharged. He had stated that the appellant was

taken at about 5.40 AM to the hospital from PS Dabri and discharged

on the same date at about 2.30 PM. He had spoken to the appellant in

the hospital.

16. The appellant was severely beaten up and was taken to

Safdarjung Hospital at about 7.50 a.m. in the morning. The said MLC

marked Ex.CW1/A records that the appellant was conscious and

oriented but had suffered injuries on the left forearm and a clean

lacerated wound on the left and right hand. He was taken to the

hospital by Const. Anang Pal. There were injuries on the other parts of

the body as well. X-ray of both the hands and left forearm was done

and it was opined that Om Prakash had suffered a fracture on the mid

shaft of the left radius and ulna. The appellant had also suffered a

fracture on the first proximal of the distal phalynx of the second

metacarpal on the left. The clothes worn by the appellant were seized

vide seizure memo Ex.PW-3/C.

17. MLC of the appellant Ex. CW-1/A was recorded at about 7.50

AM. There is some time gap between 5.30 AM and 7.50 am i.e. the

time mentioned by Const. Anang Pal (PW11) and HC Braham Prakash

(PW13) and the MLC. This however can be explained as some time

may be taken in commuting and reaching the hospital. Moreover, the

time mentioned in the MLC is by different pen whereas individual

particulars and details were written in different pen/ink.

18. As per the CFSL report (Ex.PY), blood of human origin was

found on the pant, shirt, vest and shoes worn by the appellant. The

vest did not give any reaction to ascertain the blood group, but blood

group AB was ascertained on the pant, shirt and shoes worn by the

appellant. The said blood group AB matched with the blood stained

gauze i.e. the blood group of the deceased. Blood of the said group

was also found on the Lungi and Pillow, which were seized from the

spot.

19. The appellant in his statement under Section 313 of the Code has

stated that he was sleeping but thereafter was beaten up by some

person, whose name he did not know. He has also stated that he was

sleeping in the verandah of Baijnath‟s house where he was living on

rent. At about 5 am one or two persons came and inquired about

Baijnath. When he refused, they started beating him and thereafter he

became unconscious. He stated that he did not know if he was taken to

the hospital. He gained consciousness in the hospital and then noticed

the police.

20. The Additional Session Judge while recording statement under

Section 313 of the appellant, Om Prakash noticed that the prosecution

had not bothered to examine and lead evidence on the injuries suffered

by Om Prakash. Accordingly, observations were made in the order of

the same date. We agree that it was the duty of the prosecution to

show and establish the cause of injuries and also prosecute parties, who

caused the said injuries, as commission of an offence was made out.

However, at this stage, we are not inclined to issue direction for

initiation of prosecution. This is because considerable time has lapsed

and more importantly the appellant in his Section 313 statement had

not specifically named anyone.

21. Injuries suffered by the appellant were grievous and, therefore,

FIR should have been registered by the police against the perpetrators.

It was also the duty of the police to prosecute the perpetrators who had

caused grievous injuries on the appellant after identifying the culprits.

This has been a serious lapse and failure of the police. Whenever such

facts are brought to the notice of the court, action/appropriate direction

should be issued at the initial stage itself. This would be in the interest

of justice and to ensure that the guilty are punished.

22. The learned counsel for the appellant is also right in his

contention that the other tenant, namely, Moti Lal, whose name is

mentioned in the „Rukka‟ Ex.PW1/A was not cited and produced as a

witness, but we do not think that for this reason and ground, the

prosecution version can be disbelieved in view of the evidence

produced and the statement of PW-1, PW-2, PW-3/8, PW-6 and PW-

11. We do not think that failure to examine Moti Lal is fatal to the

prosecution version in view of the ocular and documentary evidence on

record.

23. In view of the aforesaid discussion, we confirm the finding

recorded by the trial court that the appellant was the perpetrator who

had committed the murder under Section 302. He had also caused

injuries to Jawahar (PW11). We also affirm and do not see any reason

to interfere in the order of sentence for imprisonment for life and

sentence of fine of Rs.500/- for the offence under Section 302 IPC.

Under Section 324, the appellant was sentenced for rigorous

imprisonment for one year which appears to be on higher side but the

sentence had to run concurrently, and the appellant has already

undergone the said sentence. The appellant was released on

suspension of sentence pursuant to the order dated 23 rd September,

1999, after he had undergone more than seven years of imprisonment.

He will surrender within one month from the date of this decision to

undergo the remaining sentence. The appropriate authorities while

considering the question of remission will take into account the

grievous injuries suffered by Om Prakash on the date of occurrence

which have been proved beyond doubt in form of MLC (Ex. CW-1/A).

24. The appeal is dismissed.

-sd-

(SANJIV KHANNA) JUDGE

-sd-

(G.P. MITTAL) JUDGE

FEBRUARY 19, 2014 NA/KKB