Kali Ram & Ors. vs State N.C.T. Of Delhi
2014 Latest Caselaw 601 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Date of Decision: 31st January, 2014

+                        CRL.A. 629/2000
       KALI RAM & ORS.                          ..... Appellant
                    Through          Mr. K.K. Sharma, Amicus
                                     Curiae

                         versus

       STATE N.C.T. OF DELHI                     ..... Respondent
                      Through        Mr. Sunil Sharma, APP
                                     Inspector Arvind Kumar, SHO,
                                     Sub Inspector Anil, Police
                                     Station Kalyan Puri, Delhi.
%
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA

                         JUDGMENT

: SUNITA GUPTA, J.

1. The celebration of birth of newly born child of Satbir turned

into mourning when due to anguish of not receiving invitation to

attend the party, neighbour Pramod and other family members went

to the house of Satbir and stabbed him with knife, resulting in his

death and causing simple and grievous injuries to Mahipal (PW1),

Harbir(PW2), Jaipal(PW3) and Dharampal(PW4) who had also come

to attend the function.

2. The factual matrix of the case lies in narrow compass. On 14th

September, 1990, there was a function in the house of Satbir on the

occasion of birth of his son. Many persons were present. Accused

Pramod came in drunken condition and said „he would see how they

are celebrating the birth of the child‟. He stabbed Satbir with knife in

his abdomen which proved fatal. In the meantime, his father Ant

Ram with his uncles, namely, Kali Ram and Mithan and brother

Manu, armed with lathis and dandas came and gave several blows on

the persons of Mahipal, Harbir, Jaipal and Dharampal, as a result of

which Mahipal, Harbir and Jaipal sustained simple injuries while

Dharampal sustained grievous injuries. During the course of

investigation, all the accused persons were arrested. In pursuance to

the disclosure statement made by accused Ant Ram and Manu, lathi

and danda were recovered. After completing investigation, charge

sheet was submitted against all the accused.

3. Charge for offence u/S 302/307/323/308/34 ÌPC was framed

against the accused persons to which they pleaded not guilty and

claimed trial. However, during the proceedings of the case, accused

Ant Ram and Mithan expired.

4. In order to bring home the guilt of the accused, prosecution in

all, examined 17 witnesses. Statement of accused persons was

recorded under Section 313 Cr.P.C., which were one of the denial

simplicitor. They claimed their innocence and alleged false

implication in this case.

5. After meticulously examining the evidence led by the

prosecution, vide impugned judgment dated 21st July, 2000, learned

Additional Sessions Judge convicted accused Pramod u/s 302 and 307

IPC while accused Kali Ram and Manu were held guilty for offence

punishable u/S 323/308/34 IPC. Vide order dated 27 th July, 2000,

accused were sentenced as under:-

(i) Accused Pramod was sentenced to undergo rigorous

imprisonment for life and fine of Rs.5000/- for offence

u/s 302 IPC and in default of payment of fine, he was

further sentenced to rigorous imprisonment for two

years. He was further sentenced to undergo rigorous

imprisonment for 5 years and fine of Rs.2000/- for

offence u/S 307 IPC and in default of payment of fine,

one year simple imprisonment.

(ii) Accused Kali Ram and Manu were sentenced to undergo

rigorous imprisonment for 5 years and fine of Rs.2000/-

for offence punishable u/S 308/34 IPC and in default of

payment of fine, further simple imprisonment for six

months. They were further sentenced to undergo simple

imprisonment for one year and fine of Rs.1,000/- each

for the offence u/S 323/34 IPC. In default of payment of

fine, one month simple imprisonment.

Benefit of Section 428 Cr.P.C. was given to the convicts.

All the sentences were to run concurrently.

6. Accused Pramod filed an appeal bearing No.633/2000.

However, during the pendency of the appeal, he expired, as such, the

appeal stands abated against him.

7. Separate appeal bearing No.629/2000 was preferred by Kali

Ram and Manu assailing the judgment and order on sentence passed

by learned Additional Sessions Judge. However, the appellant Kali

Ram also expired on 5th November, 2005, as such, the proceedings

against him stands abated.

8. We have heard Sh. K.K. Sharma, Amicus Curiae on behalf of

the appellant-Manu and Mr. Sunil Sharma, learned Additional Public

Prosecutor for the State and have perused the record.

9. It is submitted by the learned counsel for the appellant that

PW1-Mahipal has deposed that Manu gave him lathi blow on his

back. The injuries have been opined to be simple by the doctor.

PW2-Harbir although has deposed that Manu gave him lathi blow,

however, as per the MLC, the injuries, i.e., CIW in right hand with

sharp weapon and no injury was caused by the blunt weapon, as such,

the appellant has not caused any lathi blow to PW2-Harbir.

According to PW3-Jaipal, Manu gave lathi blow to him when he tried

to intervene. As per the opinion of the doctor, the injuries were

opined to be simple. PW4-Dharampal has deposed that when he tried

to intervene, accused Ant Ram and Kali Ram started beating him with

lathis. The injuries have been opined to be grievous but the same

cannot be solely attributed to accused Manu because lathi blows were

also given by other accused. As such, the appellant is entitled to

benefit of doubt on this account. Furthermore, although, it is the case

of prosecution that the danda was recovered in pursuance to the

disclosure statement made by the accused, however, that danda was

neither deposited in Malkhana nor was shown to the witnesses in

order to ascertain whether the danda was the same with which they

were given blows by the appellant. The danda was exhibited only in

the statement of the Investigating Officer of the case. Under the

circumstances, it was submitted that prosecution has failed to bring

home the guilt of the accused beyond shadow of doubt and, as such,

the accused is entitled to benefit of doubt. Alternatively, it was

submitted that at the most, offence u/S 323 IPC is made out. The

appellant has remained in Jail for a period of more than 1½ years and,

as such, he is entitled to be released on the period already undergone.

No offence u/S 308 IPC is made out in the facts and circumstances of

the case.

10. Per contra, it was submitted by the learned Additional Public

Prosecutor for the State that there are four injured persons and all of

them have taken a consistent stand attributing the role to each and

every accused. When injury is caused to several persons by several

accused, it is difficult to ascertain the role of each and every

individual accused. However, all the witnesses have deposed

regarding stabbing of Satbir by knife, giving danda blows to

remaining injured which stands corroborated by the medical evidence

and the scientific evidence. The danda was recovered in pursuance to

the disclosure statement made by the accused and was duly identified

by the investigating officer of the case. As such, the impugned order

does not suffer from any infirmity. However, it was fairly conceded

that offence u/S 308 IPC is not made out but since Dharampal

sustained grievous injuries, as such, offence u/S 325/323 IPC are

clearly made out against the accused. The appeal, being bereft of

merit, is liable to be dismissed.

11. We have given our considerable thoughts to the respective

submissions of the learned counsel for the parties and have perused

the record.

12. The prosecution case has been substantiated by the eye-witness

account of the incident, who are also the injured persons. PW1

Mahipal has unfolded that on 14th September, 1990, there was a

function in the house of his brother-in-law on the occasion of birth of

his son. He had gone to attend the party. Accused Pramod came in

drunken condition, who was not invited for the party. He said that he

would see how they were making celebrations. Thereupon, he stabbed

his brother-in-law Satbir with a knife in his abdomen. Satbir fell

down. He tried to lift Satbir. In the meantime, Ant Ram @ Atma

Ram gave a lathi blow on his head, then Manu came there and gave a

lathi blow on his back, even then he lifted Satbir. Thereupon, Kali

Ram gave him lathi blow. They were about to take Satbir to Police

Station, then Mithan gave a knife blow to Harbir, who stopped him

from doing so and caught the knife with his hand. Thereafter, he

went to the hospital. Police came at the spot and took them to police

station. He lodged the report Ex.PW1/A. Satbir died in the hospital.

He was medically examined.

PW2 Harbir was also present in the party and has also deposed

about Satbir being stabbed by knife by the accused Pramod. He also

deposed that he was given lathi blow by the accused Mithan and

Manu. An attempt was made to stab him with knife, however, he

caught the knife with his right hand and received injuries on his ring

finger.

PW3-Jaipal corroborated the version of PW1 and PW2 for

submitting that Satbir was stabbed by the accused Pramod. He

further deposed that when he tried to intervene, he was given lathi

blows by Manu, Ant Ram and Kali Ram.

To the same effect is the testimony of PW4-Dharampal who

also deposed regarding stabbing of Satbir by Pramod and giving lathi

blows by Ant Ram, Kali Ram and Manu.

13. The law is well settled that the evidence of injured witness has

greater evidentiary value and unless compelling reasons exist, their

statements are not to be discarded lightly. In Akhtar and Ors. Vs.

State of Uttaranchal, (2009) 13 SCC 722 their Lordships held that

credence to the testimony of injured eye witness is to be given since

his presence at the scene of crime is seldom doubtful. The report

reads as under:-

"18. In Krishan vs. State of Haryana, (2006) 12 SCC 459 this Court has taken the view that if the prosecution case is supported by two injured eyewitnesses and if their (injured eyewitnesses) testimony is consistent before the police and the Court and corroborated by the medical evidence, their testimony cannot be discarded. Similarly, in Surender Singh Vs. State of Haryana, (2006) 9 SCC 247, this Court has opined that:-

"9. The testimony of an injured witness has its own relevancy and efficacy. The fact that the witness is injured at the time and in the same occurrence, lends

support to the testimony that the witness was present during occurrence and he saw the happening with his own eyes."

14. Substantially similar view was taken in Mano Dutt and Anr.

Vs. State of UP, (2012) 2 SCC (Cri) 226; Abdul Sayeed v. State of

Madhya Pradesh, (2010) 10 SCC 259 and Jarnail Singh v. State of

Punjab, (2009) 9 SCC 719.

15. In the instant case, all these witnesses were subjected to cross-

examination, however, nothing material could be elicited to discredit

their testimony. All of them have reiterated that the incident took

place when celebration of birth of son of Satbir was going on and

accused Pramod in drunken condition came to the house of Satbir

being annoyed as to why he and his family members were not invited

in the party followed by the remaining accused. All these witnesses

sustained injuries at the same time when Satbir was stabbed by

Pramod. All the accused were well known to the injured persons

from before. No animosity has been alleged against them for which

reason they will falsely implicate them in this case allowing the real

culprit to go scot free.

16. Further, ocular testimony of the injured persons find due

corroboration from medical evidence. All the injured persons were

taken to hospital. PW12-Dr. Dipankar Chatterjee examined injured

Satbir, Harbir, Jaipal and Dharampal. He examined PW1-Mahipal

and prepared his MLC- Ex.PW12/A. He opined injury as simple

caused by blunt object. He also examined PW3 Jaipal and prepared

his MLC-Ex.PW11/B and further opined that the weapon was blunt.

Injuries on the person of Jaipal were opined to be simple by PW11-

Dr.C.B.Dabbas. Dr. Dipankar Chatterjee also examined PW2-Harbir

and prepared his MLC-Ex.PW11/A and opined that weapon of

offence was sharp. PW4-Dharampal was also examined and his

MLC-Ex.PW11/C was prepared and the injuries were opined to be

caused on his person by blunt object. As per the MLC-Ex.PW11/C,

Dharmpal has sustained "fracture on the tip of tibia" besides other

injuries, as such, the injuries were opined by PW11- Dr.C.P Dabbas

to be "grievous".

17. It is a matter of record that on 17th September, 1990, accused

Ant Ram and Manu were arrested by Inspector R.S.Nehra in the

presence of PW9-Head Constable Ranbir and PW17-SI Babu Singh

when he along with co-accused Ant Ram was getting down from the

bus. Both of them were arrested. Accused Manu made disclosure

statement-Ex.PW7/C that he can get the danda recovered from his

jhuggi. Thereupon, he led the police party to his jhuggi and got

recovered danda (Ex.P1) which was seized vide seizure memo

Ex.PW7/F.

18. Much emphasis has been laid by the learned counsel for the

appellant for submitting that the danda(Ex.P1) was not deposited in

the Malkhana and it was not shown to the injured witnesses in order

to ascertain as to whether it was the same danda with which the

injuries were inflicted on their persons. Although, it is true that no

cogent evidence has come on record to prove that the danda was

deposited in the Malkhana, however, nothing was elicited in the

cross-examination either of the Investigating Officer or of the MHCM

to ascertain as to whether it was deposited in Malkhana. It was

produced in the Court when the witnesses of recovery were examined

and PW7-Inspector R.S. Nehra, PW9-HC Ranbir Singh and PW17-SI

Babu Singh identified the danda-Ex.P1 to be the same which was

recovered at the instance of accused Manu. Even otherwise, at the

most, it can be taken that in the absence of showing the danda to

injured witnesses, it is not proved beyond reasonable doubt that

danda-Ex.P1 was the same with which injuries were inflicted on the

persons of the injured. However, in view of the cogent, consistent

and the clinching evidence coming on record in the testimony of all

the injured witnesses that they were given danda/lathi blows by the

accused and the doctor has also opined that injuries were caused by

blunt object, the mere fact that danda was not shown to the injured

does not cast any dent on prosecution case.

19. The last limb of the arguments that although the injuries on the

person of Dharampal has been opined to be grievous but the same

cannot be solely attributed to accused Manu because lathi blows were

also given by other accused, same is devoid of any substance,

inasmuch as, the fact that all the accused came together and while

accused Pramod inflicted knife blow on the person of Satbir, the other

accused gave lathi blows. That being so, it was difficult to ascertain

the role of each and every individual accused but the common

intention of all the accused is manifest from the fact that

indiscriminate lathi and danda blows were given on the person of

Mahipal, Harbir, Jaipal and Dharampal by accused Kali Ram, Ant

Ram and Manu. As such, even if it cannot be ascertained as to which

lathi blow resulted in grievous injuries to Dharampal, the appellant

cannot escape his liability.

20. The result of the aforesaid discussion is that the prosecution

had succeeded in establishing that the appellant Manu along with co-

accused came to the house of Satbir and while accused Pramod

stabbed Satbir with a knife, the remaining accused gave danda/lathi

blows on the persons of Mahipal, Harbir, Jaipal and Dharampal

resulting in simple injuries to Mahipal and Jaipal and grievous

injuries to Dharmpal.

21. Learned Trial Court has convicted the appellant u/S 308/323

IPC. However, it was rightly conceded by learned Additional Public

Prosecutor for the State that Section 308 IPC is not attracted in the

facts and circumstances of the case, however, keeping in view the fact

that PW4-Dharampal sustained fracture on the tip of tibia, as such,

the injuries being grievous falls under Clause Seventhly of Section

320 IPC punishable u/S 325 IPC.

22. Under the circumstances, the judgment dated 21st July, 2000

and order on sentence dated 27th July, 2000 is modified to the extent

that the conviction of the appellant u/S 323/34 IPC and the sentence

to undergo simple imprisonment for one year and fine of Rs.1000/-

each is upheld. However, the conviction u/S 308/34 IPC is modified

to Section 325/34 IPC. As per the record, the appellant has remained

in jail for about 1½ years, as such, ends of justice will be met if he is

sentenced to the period already undergone. He is, however, directed

to pay a sum of Rs.15000/- as fine, in default of payment of fine, to

undergo simple imprisonment for two months. He is granted 15 days‟

time to deposit the fine with the Trial Court and place the receipt on

record.

23. The appeal stands disposed of accordingly.

(SUNITA GUPTA) JUDGE

(KAILASH GAMBHIR) JUDGE JANUARY 31, 2014 rs