Dalip Kumar @ Albeli vs State (Govt. Of Nct Of Delhi)
2014 Latest Caselaw 1241 Del

$~R-13
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Date of decision: 7th March, 2014
+       CRL.A.749/2010
        DALIP KUMAR @ ALBELI                  ..... Appellant
                     Through: Ms. Manjusha Wadhwa, Advocate

                         versus

        STATE (GOVT. OF NCT OF DELHI)             ..... Respondent
                      Through: Mr. Rajat Katyal, APP for the State.

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

                            JUDGMENT

SANJIV KHANNA J. (ORAL)

1. The Appellant Dalip Kumar @ Albeli impugns his conviction by the

impugned judgment dated 24.04.2010 passed in Sessions Case

No.75/2009 arising out of FIR No.314/2006, Police Station Model

Town. The appellant has been convicted under Section 302 of the

Indian Penal Code, 1860 (IPC for short) for murder of Lal Bahadur

between 10:30 to 11:00 p.m. on 20th May, 2006 at house No.H-107,

DESU Colony, Rana Pratap Bagh, Delhi.

2. By order on sentence dated 28.04.2010, the Appellant has been

sentenced to undergo imprisonment for life and pay fine of Rs.10,000/-

in default of which he is to undergo rigorous imprisonment for three

years.

3. Homicidal death of Lal Bahadur pursuant to incised wounds has been

proved beyond doubt and was not challenged by Ms. Manjusha

Wadhwa, Amicus Curiae appearing for the appellant. MLC of the

deceased Ex.PW-17/A was proved by Dr. Ranjan Verma, (PW-17),

CMO Hindu Rao Hospital who deposed that on the intervening night

of 20/21st May, 2006 at about 12:30 a.m. he had examined Lal

Bahadur, son of Madan Lal, aged 50 years. Deceased was brought by

Head Constable Rajinder of PP Sangan Park. He was declared brought

dead and the body was sent to the mortuary. The post-mortem was

conducted by Dr. C.B. Dabas, (PW-15) on 22.05.2006 and in the post-

mortem report Ex.PW-15/A and as per in the Court deposition of PW-

15, the following injuries were observed on the body of the deceased:-

(1) Incised wound 1.8 x 0.5cms skin deep on right forearm on front part.

(2) Incised wound 2.7 x 0.5 cm muscle deep over middle front part of right thigh.

(3) Incised wound 3.1 x 0.6 cm muscle deep over back of right thigh in middle and lower part with upper angle of the wound was round and lower angle was actue.

(4) Incised wound 5 x 0.8 cm over front of right leg in middle part.

(5) Incised wound 3 x 0.5 cms over back of right leg. (6) Two incised wounds measuring 4 x 0.4 cms over left leg on medial and lower part and communicating with each other.

(7) Incised wound two in number located on middle back part of left thigh measuring 2.5 x 0.8 cm and 2.5 x 0.6 cms respectively and communicating with each other.

(8) Incised wound 3 x 0.5 cm and 2.5 x 0.6 cms respectively and communicating with each other.

(9) Multiple abrasions of varying sizes of 0.5 x 0.5 cms to 2.5 x 1 cms over back of chest and back of abdomen around spin.

(10) One stabbed would 5 cm x 0.8 cm located on left side front of chest in fifth inter costal space, 6 cms outer to mid line and 127 cms above-left heel. Wound was placed obliquely with upper and right angle being acute in lower angle being round. The wound was penetrating into chest cavity.

4. PW-15 has testified that on dissection and exploration of injury No.10,

it was noticed that this injury had entered the chest cavity through fifth

inter costal space cutting the lower border of fifth rib and then

perforating through pericardium, anterior and posterior walls of left

ventricle, posterior part of pericardium, anterior surface of left lung in

its lower border of upper lobe and ended in upper part of lower lobe.

There was effusion of blood alongwith track of the wound. Length of

the track was 14 cms. PW-15 opined that injury No.10 had been caused

by a sharp edged weapon which was sufficient to cause death in the

ordinary course of nature. Injury Nos.1 to 8 were also caused by sharp

edged weapon and injury No.9 had been caused by blunt force impact

with a hard surface or object. All the injuries were ante mortem in

nature. The time of death was approximately 35 to 36 hours. A knife

Ex.P-1 was also shown to PW-15 and he observed that the injuries in

question except injury No.9 were possible with the said weapon.

5. On the question of involvement of the Appellant, the learned counsel

for the Appellant has submitted that Anita, Meera and Versha, PW-1,

PW-2 and PW-3 respectively have turned hostile. They were cross-

examined by the Additional Public Prosecutor. She submits that this

has dented the prosecution case and the Trail Court has erred in partly

relying upon the statements of PW-1 and PW-2 and Shashi (PW-27).

She has drawn our attention to the scaled and unscaled site plan marked

Ex.PW-26/A and Ex.PW-30/A and pointed out that there was a rear

door to both flats/quarters Nos.H-105 and H-107, the fact reluctantly

accepted by ACP Hira Lal (PW-30).

6. We have considered the said contentions but we do not find any merit

and substance in the same. Shashi (PW-27) has deposed that she had

been living in quarter No.H-105, DESU colony with the deceased Lal

Bahadur and his family since her childhood. Lal Bahadur was her

brother. She identified the appellant as Albeli when her deposition was

recorded on 04.10.2008. She has stated that at 9:00 p.m. on 20.05.2006

Albeli and the deceased were sitting in quarter No.H-107, while she

was in her quarter. At that time verbal heated exchange had taken place

between the two and Albeli went away stating that he shall come back.

She testified that the appellant might have borrowed money earlier

from the deceased Lal Bahadur. At about 10:30 or 11:00 p.m. the

appellant came back and bolted the door of their quarter, i.e. Quarter

No.H-105 from outside. At that time, Lal Bahadur was in Quarter

No.H-107. When they heard loud cries they became worried and tried

to open the door. Thereupon their neighbour Anita came and opened

the door of their quarter from outside. She saw her brother Lal

Bahadur lying in a pool of blood in quarter No.H-107. She, her sisters

Shallu, Neelam and Nanda and wife of Lal Bahadur, Meera started

crying. Telephone number 100 was dialled and Lal Bahadur was taken

to the hospital. Meera accompanied her husband Lal Bahadur to the

hospital and later on they came to know that Lal Bahadur had expired.

In her cross-examination PW-27 has stated that Quarter No.H-105 had

three rooms, open courtyard and a kitchen. She was living in a separate

room constructed between Quarter No.105 and 107 and she used to

have petty quarrels with her brother Lal Bahadur. Lal Bahadur was not

residing in Quarter No.H-107 but used to spend time there. She did not

know who was the owner (sic occupier) of Quarter No.H-107 but there

was a garwali. She voluntarily deposed that at that time Quarter No.H-

107 was vacant. PW-27 was unable to identify the house number of

Anita but had given her name in the examination-in-chief as the person

who had opened their door. She testified that Lal Bahadur used to take

drugs but she was unaware of the drug and could not categorically state

whether Lal Bahadur used to take smack. No household articles were

lying in Quarter No.H-107. Lal Bahadur had old relationship with the

appellant and they had not informed the police that the appellant had

earlier come and threatened the deceased. Door of their Quarter No.H-

105 used to remains open and they used to only close the door when

they went out. She accepted that she had not seen anybody bolting the

door from the outside. Her bhabhi Meera (PW-2) told her that the door

had been bolted from outside. She accepted that statements of her

sisters were not recorded.

7. Meera (PW-2) has deposed on identical lines. She accepted that her

husband used to consume intoxicants and on the said date between

10:00 to 11:00 p.m. while she was present in her quarter, her husband

was sitting in a vacant room of quarter No.H-107. He was taking some

substance at that time. The appellant used to reside in Kabir Nagar

jhuggi. The appellant had met Lal Bahadur in the said room and was

asked to refund Rs.3,000/-. The appellant refused and an altercation

had taken place between the two. The appellant had then threatened

her husband. After half an hour, the appellant came back and went to

the room of her husband, i.e. quarter No.H-107 but prior to that he had

locked the room of her sister-in-law Shashi (PW-27). She was cross-

examined by the Additional Public Prosecutor. She accepted that the

appellant had locked the room of their quarter No.H-105 and she was

in the said quarter with Shashi. She deposed that she forgotten facts

due to passage of time and sudden demise of her husband. Thus, PW-2

had initially deposed that the appellant had locked the door of the room

of PW-27 but on cross-examination by the Additional Public

Prosecutor accepted that the door of the quarter where she and Anita

were present was bolted from outside. We do not think the aforesaid

discrepancy is such that we should discard and disbelieve the testimony

of PW-2 as an unreliable or untrustworthy witness. PW-2 has further

stated that she had seen the appellant coming out of the room of her

husband after the bolt was opened by Anita, their neighbour. She went

inside and saw her husband Lal Bahadur lying in a pool of blood.

Thereupon her neighbour Varsha (PW-3) made a call to the police from

her residence. In cross-examination, PW-2 had stated that she had seen

the appellant killing her husband and who thereafter left the spot. This

apparently was an exaggeration, as in the examination-in-chief PW-2

had stated that when she was going towards the room of her husband,

when she saw the appellant coming out after killing her husband. On

further cross-examination PW-2 accepted that she had not seen the

appellant stabbing her husband. The Trial Court in the impugned

judgment has rightly observed that PW-2 and PW-27 were illiterate

ladies hailing from poor economic background. When we examine

their narration of the incident in a sequential manner, some degree of

latitude and room is required.

8. Anita (PW-1) had accepted that she heard noise at about 10:30/11:00

p.m. She went to the lane behind quarter No.H-106, DESU Colony and

opened the door of quarter No.H-106, DESU Colony. She found

Meera (PW-2) inside the house. Meera (PW-2) ran towards the

adjoining house. The learned counsel for the appellant has submitted

that Anita (PW-1) has deposed that Meera (PW-2) was inside quarter

No.H-106 and she had opened the bolt of the said quarter. We do not

think that the said statement on the quarter number should be accepted.

PW-1 has stated that quarter No.H-106, DESU Colony was her quarter.

PW-1 apparently made a mistake by referring to the number of her

quarter. This was clarified by PW-1 when she was cross-examined by

the Additional Public Prosecutor. She has accepted the fact that upon

opening the door, Meera came out from the room and ran towards Lal

Bahadur in the quarter No.H-107, DESU Colony, Delhi. At that time,

Meera had raised hue and cry, that the Appellant had killed Lal

Bahadur. PW-1 supports the prosecution version and the testimony of

PW-2 and PW-27 that Anita had opened the bolt of the quarter from

outside and PW-1 and PW-2 went to quarter No.H-107, but Lal

Bahadur had already been stabbed by the appellant who ran away.

9. Versha (PW-3) was declared as hostile but we notice that she has

accepted that on 20.05.2006 at 11:00/11:30 p.m. at night she was

present and came outside upon hearing screams. Family members of

Lal Bahadur were crying. Lal Bahadur was found to be lying in quarter

No.H-107 in a pool of blood. Then she had made a call to the police on

number 100 and Lal Bahadur was removed from the spot by the police.

In the cross-examination by Additional Public Prosecutor, PW-3

deposed that she had not seen the appellant coming out of the house of

Lal Bahadur but accepted as correct that she did tell the police that the

appellant used to visit the area. She claimed that she did not know

whether appellant was also known as Dalip Kumar but she knew him

as Albeli.

10. The aforesaid statements of PW-1, 2 and 27 is corroborated by the

testimonies of the police officers. W/Constable Urmila (PW-7) has

deposed that at about 23:56 p.m. on 20/21.05.2006 she had received a

telephone call from Varsha from telephone No.55358516 about a

quarrel at quarter No.H-105, DESU Colony, Pratap Bagh, Delhi. She

recorded this information in the Police Control Room (PCR) form

marked Ex.PW-7/A. Head Constable Ishwar Singh (PW-14) has

deposed that at 12:05 a.m. he had received information from the

control room and had gone to the Quarter No.H-105. He was

accompanied by SI Veerpal Singh, ASI Karamvir Singh and Head

Constable Prem Singh. Meanwhile, Additional SHO had reached the

spot and had taken the deceased to Hindu Rao Hospital. The

Additional SHO had also recorded statement of Meera (PW-2) and on

this basis rukka was prepared and the FIR was registered. In the cross-

examination by the Additional Public Prosecutor PW-14 accepted that

the occurrence had taken place in House No.H-107 and not in House

No.H-105 as stated by him. PCR form Ex.PW-7/A which was

contemporaneously recorded as stated by PW-17 reads as under:-

"Lal Bahadur s/o Madan Lal, R/o the aforesaid (address), age 45 years was stabled by B.C. Albeli of Kabir Nagar. The knife blows inflicted are 02 in the left leg, 02 in the right leg and 01 in the chest on the left side totalling 05 knife blows. He was declared "brought dead" by the doctor at H.R. Hospital. His wife was accompanying him who said that B.C. Albeli had come to their house at 9 o'clock in the night and the quarrel had started regarding some money matter. She said that the incident had occurred 10 minutes earlier to the call. B.C. Albeli had fled from the spot. Additional SHO, Model town and ASI Karambeer are on the spot."

11. At this stage, it would be suffice to notice that the name of the

appellant is mentioned in the rukka and the FIR as the perpetrator who

had wounded and injured the deceased Lal Bahadur.

12. We have also examined the testimony of Insp. Sunita Sharma (PW-23),

who had prepared the rukka, Insp. Swatantar Singh (PW-24) and SI

Virpal Singh (PW-25) who have similarly deposed as to what had

transpired after they reached the spot and further investigation

undertaken. The Investigating officer ACP Hira Lal, (PW-30) has

stated that he recorded the statement of Meera (PW-2) and had

inspected the spot/place of occurrence. Blood was scattered in one

room of quarter No.H-107. He had prepared the unscaled site plan

Ex.PW-30/A. The unscaled site plan prepared by PW-30 refers to

location of two doors X1 and X2. X1 was the door on the rear side of

quarter No.H-105. Door X2 was shown in the unscaled site plan

Ex.PW-30/A, but was not specially given an indication. X2 was the

entry door of quarter No.H-107. The scaled site plan makes the

position clear and the door of House No.H-107 was clearly indicated in

the scaled site plan Ex.PW-26/A. The door of quarter No.H-105, which

was locked from outside as deposed by PW-27, PW-2 and PW-1 stands

indicated at point D in the scaled site plan Ex.PW-26/A and the

unscaled site plan Ex.PW-30/A. Thus, there is no real and substantial

divergence in the two site plans Ex.PW-30/A and Ex.PW-26/A.

13. We do not find any merit in the contention of the learned counsel for

the Appellant that PW-27 and PW-2 could have and should have exited

from the rear door upon hearing cries of Lal Bahadur, instead of

shouting and asking someone to open the bolt of their door. The said

argument has to be rejected for several reasons. The bolted door

shown in the unscaled site plan was adjacent to door of quarter No.H-

107. It was natural for PW-27 and PW-2 to shout and ask someone to

open the said door, when they heard cries coming from quarter No.H-

107. Anita thereupon opened the said door and they ran to quarter

No.H-107 where they found that Lal Bahadur was lying in a pool of

blood having suffered injuries. They saw the appellant running away

from the spot, i.e. the room in quarter No.H-107.

14. The appellant was subsequently arrested as per arrest memo Ex.PW-

16/B on 21.05.2006 at 9:00 a.m. as deposed to by Head Constable

Amar Singh (PW-16), who had also reached the place of occurrence on

the said night along with other police officers. SI Karambir Singh (PW-

28) has testified on similar lines in the court. Statement of ACP Hira

Lal (PW-30) is identical.

15. On the basis of the disclosure statement Ex.PW-16/D, the appellant got

recovered one blood stained knife from his room which was seized by

memo Ex.PW-16/G. The knife was identified by PW-30 and marked

Ex.P-1. The said recovery is corroborated by the oral testimony of SI

Karamvir Singh (PW-28). It was submitted on behalf of the appellant

that no public witness had joined or signed the recovery/seizure memo

Ex.PW-16/G. The Appellant, it is accepted, was a bad character (B.C.)

of the area. The deceased apparently was a drug addict. The

reluctance on behalf of the public or person from the locality to join is

apparent. The FSL reports does not mention presence of blood on the

pant and the shirt seized from the appellant. However, blood was

detected on the weapon of offence but the blood group could not be

ascertained. In view of the aforesaid, the FSL report can only be partly

relied upon by the prosecution as to the presence of human blood on

the knife, Ex.P-1 which was seized. The appellant was arrested very

next day at 9:00 a.m., within 12 hours of the occurrence.

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

Criminal Procedure, 1973 (Cr.P.C.) has stated that he had surrendered

at the Police Station Model Town the next day, that is, 21.05.2006 as

his family members were put under pressure from the police. This is

not acceptable in view of the fact that the appellant was arrested within

a few hours of the registration of the FIR. We agree with the learned

counsel for the appellant that an incorrect question was put to the

appellant for answer in the statement under Section 313 Cr.P.C., as it

was suggested that as per the report of the Serologist, blood group A

was found on the pant and shirt, i.e. the clothes worn by the appellant.

The said suggestion should not have been given as the said shirt/pant

belonged to the deceased. However, this will not materially affect the

verdict and our final conclusion. We are also not inclined to accept the

contention on behalf of the appellant that absence of blood on his

clothes creates doubts as to the prosecution version on the involvement

of the appellant. The ocular testimony of PW-2 and PW-27 are

categorical, candid and merits acceptance. We do not think their

testimony, clearly and fulgently describing and stating the appellant

was the perpetrator, can be ignored for this reason. The appellant was

mentioned and named at the very first instance, rather immediately

after the occurrence. The appellant's name as the culprit is mentioned

in the contemporaneous initial PCR record Ex.PW-7/A.

17. Keeping in view the aforesaid factual position and discussion it would

be wrong and incorrect to hold that the testimonies of PW-2 and PW-

27, whose presence at the spot at the time of occurrence in the

house/quarter was natural and normal, should be disbelieved in spite of

their categorical and explicit depositions. Thus, we have no difficulty

in confirming the findings recorded by the Trial Court on the question

of involvement of the appellant and hold that the appellant has been

rightly convicted under Section 302 IPC. However, on the question of

sentence, we feel the sentence directing the appellant to undergo

rigorous imprisonment for three years in default of payment of fine of

Rs.10,000/- requires modification and relaxation. The appellant before

us has been represented by Amicus Curiae. Accordingly, we modify

the said portion of the sentence and direct that in case the appellant

does not pay fine of Rs.10,000/- he shall undergo simple imprisonment

for a period of six months.

18. We accordingly dispose of the appeal upholding the conviction of the

appellant under Section 302 IPC and the sentence of life imprisonment

with fine of Rs.10,000/- but direct that the appellant will suffer simple

imprisonment for six months, if the fine is not paid.

19. Copy of the order be sent to the Trial Court for information.

(SANJIV KHANNA) JUDGE

(G.P. MITTAL) JUDGE MARCH 07, 2014 vk