Dharmender Kumar vs State
2014 Latest Caselaw 4049 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                 Judgment Reserved on: August 28, 2014
%                                Judgment Delivered on: September 01, 2014

+                       CRL.A. 108/2004

      DHARMENDER KUMAR                                  ..... Appellant
                  Represented by:           Mr.Vivek Sood, Mr. Prem
                                            Prakash, Advs.

                        versus

      STATE                                        .... Respondent
                        Represented by:     Ms.Aashaa Tiwari, APP with
                                            Insp. Ramesh PS Moti Ngr.

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J.

1. Dharmender Kumar is convicted for causing the murder of Radhey Shyam with a knife of prohibited length later recovered from him on the strength of testimony of Ms. Sita PW-7 and Dilip Kumar PW-11, the daughter and son of the deceased, who are eye-witnesses. Dharmender Kumar assails the judgment dated December 18, 2003 convicting him for offences punishable under Section 302 IPC read with Section 25/27 Arms Act and the order on sentence dated December 20, 2003 directing him to undergo imprisonment for life with fine of `1000/- for offence punishable under Section 302 IPC, rigorous imprisonment for 3 years and fine of `1000/- for offence punishable under Section 25 Arms Act and rigorous imprisonment for 7 years and fine of `1000/- for offence punishable under

Section 27 of the Arms Act.

2. Learned counsel for the appellant challenges the judgment on the ground that the manner of crime as deposed by the witnesses has changed. Though Dilip Kumar son of the deceased an alleged eye-witness claims that he had picked up his father to admit him in the hospital, however his blood stained clothes has not been seized thus creating a doubt on the fact whether Dilip Kumar was an eye-witness. There are material discrepancies in the evidence of witnesses with regard to recovery of alleged weapon of offence and the blood stained T-shirt of Dharmender Kumar. No public witness has been joined in the investigation and evidence has been fabricated against the appellant.

3. No defence evidence has been led by the appellant and his explanation in his statement recorded under Section 313 Cr.P.C. is of false implication only.

4. We have heard learned counsel for the parties and perused the record.

5. The investigating machinery was set into motion in the present case on receipt of an information at 1.30 PM on August 25, 1999 at PS Moti Nagar recorded vide DD No. 15A informing that knife is being used at Rama Road, Plot No. B-58 and one person has died due to knife injury, Police officer be sent. HC Jai Bhagwan PW-4 PCR Incharge reached the place of quarrel on receipt of the wireless message where he found Radhey Shyam injured and bleeding with injury on his chest. He got him admitted in DDU hospital at 2.00 PM where he was declared brought dead. An information in this regard was sent to PS Moti Nagar vide DD No.16A on August 25, 1999 recorded at 2.15 PM.

6. ASI Azad Singh with Constable Sanjay reached the spot on receipt of

DD No.15A where he found that lot of blood was clattered on the ground and the injured had been taken to DDU hospital. He reached the hospital where he met Dilip who got recorded his statement vide Ex.PW-11/A on the basis of which FIR was registered. MLC of Dilip was also got conducted vide Ex.PW-12/A which showed simple blunt injury i.e. bruise 2 x 3 cms on right side of the back.

7. Dilip PW-11 stated that he was doing a private job at Raghubir Nagar. His younger sister aged 16 years was studying in school at Karam Pura in 9th standard. On the previous day Sita informed her that a boy named Dharmender staying at B-58 Rama Road used to misbehave with her while going and coming from the school. She asked him to explain Dharmender that he should not misbehave with her. On August 25, 1999 at around 12.45 noon Dilip went to the school of his sister. When he reached at Milan Road near Hanuman Mandir he found Dharmender S/o Nandji, R/o B-409, B-58 Rama Road, Delhi and explained to him that his act was not proper. On this Dharmender took out his belt which he was wearing, hit Dilip Kumar on his back and stated that he was tarnishing his image. After saying this Dharmender ran away. When he reached with his sister around 1.10 PM in the gali of his house, he saw his father standing outside the house. In the meantime Dharmender Kumar came from his jhuggi. He had a knife in his right hand. He started abusing them that they were defaming him so he would finish him on that date. He gave knife blows to his father twice so as to kill him. Thereafter, Police vehicle came and took his father to the hospital.

8. Dilip Kumar appeared as PW-11 in the witness box and deposed in sync with his previous statement on the basis of FIR was registered. No

doubt this witness in his cross-examination-in-chief itself states that he lifted his father and felt that he was dead. However, he clarifies that in the meantime Police arrived and his father was taken to DDU hospital. He did not accompany the Police to the hospital and was taken to Police Station by Police man where his statement Ex.PW-11/A was recorded. However, the fact that this witness did not accompany his father to the hospital and his blood stained clothes not being seized would not be sufficient to discredit his testimony. The events took place in a sequence while Dilip was following his sister to ensure that she is not troubled, Dharmender again abused her on that day. When Dilip tried to bring him to senses instead Dharmender retorted that he was being defamed and gave blows by his belt on the back of Dilip and soon thereafter Dharmender came to their house and killed Dilip's father who was standing outside. This version of Dilip is corroborated not only by the evidence of Sita PW-7 but also by his MLC Ex.PW-12/A which shows bruise marks 2 x 3 cms on the right side of the back when he was medically examined on August 25, 1999.

9. Sita PW-7 the daughter of deceased Radhey Shyam stated that Dharmender was residing in a jhuggi about 100 meters away from their jhuggi at Rama Road. She was studying in Government Secondary School in 9th standard, however after the murder of her father she gave up her studies in August 1999. On August 23/24 while she was going to the school in the morning at about 6.45 AM, near Campa Cola Factory, Dharmender came in front of her. He blocked her way and started abusing her as to why she was not listening to him. Sita also abused him whereupon he caught her hair plait and gave her a slap. On this Sita stated that she would complaint to her brother, however Dharmender replied that he was not afraid of

anybody. She narrated the incident to her brother in the evening of August 24, 1999. On August 25, 1999 when she again went to the school at about 6.30 AM Dharmender again met her on the same place and teased her. At about 12.35 PM when she was returning from the school she saw her brother following her. When she reached near the mechanics shop near dispensary she found Dharmender present along with other persons. Dharmender followed her by clapping both his hands. Her brother came and told him not to do so. He started abusing his brother. Dharmender pulled out his belt and gave 2-3 blows to his brother. Her brother told her to go home and so she went away. It was about 12.50 PM and she narrated the incident to her mother. She along with her mother came out of her jhuggi. Her father was also standing in the street. Dharmender came there having a knife with him and there was one more boy namely Sanjay. In the meantime her brother also arrived there. Sanjay caught hold of the throat of her father and Dharmender present in the Court gave two knife blows on her father's stomach and chest. After causing injuries both Sanjay and Dharmender started running away from the spot and her brother tried to chase them but all the persons present their suggested that her brother should first take care of their father. So her brother first attended to their father. In the meantime both the assailants ran away. This witness was cross-examined with regard to Sanjay as in the previous statement recorded under Section 161 Cr.P.C. this witness made no reference to Sanjay. This witness identified the clothes of her father.

10. Undoubtedly, the testimony of this witness with regard to Sanjay is an improvement on her previous statement, however since Sanjay was never sent for trial and is not before this Court the same is not relevant. As regards

Dharmender is concerned though this witness has been confronted with her previous statement Ex.PW-7/DA, however nothing material has been elicited and the crux of her statement made in the Court is in sync with her statement recorded under Section 161 Cr.P.C. with usual change of phraseology. There being no material improvement with regard to the role attributed to Dharmender we find no reason to discredit the testimony of this witness.

11. The post-mortem of the Radhey Shyam was conducted by Dr.L.K. Barua PW-13 who noticed the following injuries on the body:

"External injury

1. Incised wound on the right side front side of the chest 4 cm below the right nipple of size 4 cm x 1.5 cm. The upward end was slightly blunt in comparison to the lower end.

2. Incised wound on the left side lower part front side of chest just above the rib of size 6 cm x 1 cm; 3 cm x 1 cm. The upward end was slightly blunt and the lower end was acutely cut.

On internal examination, the injury No.1 had entered the chest cavity through six inter-coastal space and had cut the right ventrical of the heart. Total depth was about 7 cm. The injury No.2 entered the abdominal cavity and had cut the stomach and the intestine. The total depth was about 9 cm. The right chest cavity at the abdominal cavity contained blood."

12. Dr.L.K.Barua exhibited the post-mortem report vide Ex.PW-13/A and opined that the injuries mentioned in his report were ante-mortem in nature caused by sharp aged weapon and were independently sufficient to cause death in ordinary course of nature. He also opined that death was due to hemorrhagic shock resulting from injury. Pursuant to the recovery of knife

the same was also sent to him for his subsequent opinion. He rendered his subsequent opinion vide Ex.PW-13/B and opined that the injuries mentioned in the post-mortem report could be possible by the same knife which was sent to him in the sealed parcel. The knife was found to be blood stained. Thus the weapon of offence allegedly recovered at the instance of Dharmender stands connected with the injuries caused on the deceased.

13. As per the prosecution pursuant to the arrest Dharmender made a disclosure statement Ex.PW-11/E and got recovered the weapon of offence knife from scrap lying behind a box on the roof of jhuggi No. B-409 B-58, Rama Road which knife was further kept in torn yellow and brown lining. This recovery has been assailed by Dharmender on the ground that though memo Ex.PW-11/D has been signed by Dilip, however he does not depose in this regard when he appears in the witness box. Dilip PW-11 has deposed that Dharmender was arrested after 2-3 days of the incident and Police had recovered the knife from the roof of the house of accused Dharmender in his presence on the same day i.e. the date of incident. He identified the knife which was having a black handle and had been recovered from the house of the accused. He also identified the signatures on the seizure memo Ex.PW- 11/D and sketch Ex.PW-11/C. The seizure memo Ex.PW-11/D is dated August 28, 1999 and thus the minor error which crept on account of the date of recovery in the cross-examination of Dilip is required to be ignored.

14. In view of the testimony of Dilip and Sita the two eye-witnesses which is duly corroborated by the post-mortem report, the fact that Dilip had been received injury from Dharmender immediately before Radhey Shyam was stabbed, further corroborated by the recovery of weapon of offence at the instance of Dharmender and the opinion of the post-mortem doctor that

the injury was possible by the said knife, we are of the considered opinion that the prosecution has proved beyond reasonable doubt that Dharmender committed the murder of Radhey Shyam by using the knife recovered. Thus, we find no merit in the appeal and the same is dismissed. Appellant will suffer the remaining sentence.

15. T.C.R. be returned.

16. Two copies of the judgment be sent to the Superintendent Central Jail Tihar one for his record and the other to be handed over to the appellant.

(MUKTA GUPTA) JUDGE

(PRADEEP NANDRAJOG) JUDGE SEPTEMBER 01, 2014 'ga'