Shiv Lal @ Lala vs State
2015 Latest Caselaw 2197 Del

             * IN THE HIGH COURT OF DELHI AT NEW DELHI
                           + CRIMINAL APPEAL No.608/2013


%                                           Judgment Reserved On: 10th March 2015
                                        Judgment Delivered On: 16th March, 2015


SHIV LAL @ LALA                                              .......... Appellant
                                   Through: Mr. Chetan Anand, Advocate.
                                   versus
STATE                                                        ...........Respondent
                                   Through: Mr. Sunil Sharma, APP for State
CORAM :
HON'BLE MR. JUSTICE G. S. SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

G. S. SISTANI, J.

1. Challenge in this appeal, filed under Section 374(2) of the Criminal

Procedure Code, is to the judgment dated 17.09.2012 and the order on

sentence dated 18.09.2012 whereby the appellant has been convicted and

sentenced to rigorous imprisonment for life and fine of Rs. 5,000/- has been

imposed for the offence punishable under Section 302 of IPC and in default

of payment of fine simple imprisonment for a period of one year more.

2. The case of the prosecution, as noticed by the trial court, is that:

"On 26.02.2008 at about 6:15pm the accused started quarrelling with his

mother Vedwati and when deceased Mamta (wife of his brother Pawan)

intervened, the accused picked up a kitchen knife and stabbed her. DD No.

12A was registered and was assigned to ASI Habib Ahmed who alongwith

Const. Ashok Kumar and Const. Jitender reached at the spot i.e C-98, Ankur

Enclave, Karawal Nagar, Delhi and found the injured Mamta lying on a

rickshaw and bleeding from the wound in her stomach. On being questioned

regarding the incident, the deceased Mamta disclosed that her jeth Shiv Lal

had stabbed her. Injured was sent to GTB hospital where she was declared

brought dead. The MLC of the deceased was collected, statement of Vedwati

(mother of the accused) was recorded and FIR was registered against the

accused. On secret information, accused was arrested and one kitchen knife

was recovered from the right side pocket of his pants. Postmortem of the

deceased was carried out and the Doctor opined that injury was possible by

the given knife. After completion of investigation, charge sheet was filed

against the accused u/s 302 IPC.

3. Learned counsel for the appellant submits that the impugned judgment

passed by the learned trial court is bad in law, based on conjectures and

surmises and not based upon cogent, clear, credible or unimpeachable

evidence.

4. Counsel for the appellant further submits that the trial court did not

appreciate that as per DD No. 12A Ex.PW2/A, information regarding scuffle

was provided by Const. Ved Prakash and he has not been examined. He

further contends that the PCR official whose name is disclosed in MLC

Ex.PW8/A as HC Brij Mohan and who removed the injured to the hospital

has not been examined. Also the children of the deceased have not been

examined.

5. In support of his submissions, reliance is placed by learned counsel for the

appellant in the case of Sahaj Ram & Ors. Vs The State of U.P 1973 CAR

102 (SC), wherein the Hon'ble Supreme Court observed that, though the

prosecution is not bound to call all available witnesses, irrespective of

considerations of number and of reliability, witnesses essential to the

unfolding of the narrative on which the prosecution case is based must be

called by the prosecution, whether the effect of their testimony is for or

against the case of the prosecution.

6. With regard to injury inflicted on the deceased Mamta, counsel for the

appellant submits that as per the sketch of the knife Ex.PW3/E, it is a small

kitchen knife and the blade of the knife is 7cms and the handle of the knife is

10.1cms and as per Ex.10/B the depth of injury is 10.5cms and therefore

from such a small knife the kind of injury reflected in the post mortem report

Ex.PW10/A is not possible.

7. Elaborating his arguments further, learned counsel for the appellant, submits

that there are material contradictions in the testimony of prosecution

witnesses regarding the arrest of the appellant and the recovery of weapon of

offence from him. It is further contended that the PW1 Vedwati who is the

author of FIR and sole eye witness has not supported the prosecution story in

her cross examination and even when she was re examined on 05.12.2011.

8. Counsel for the appellant further submits that PW3 Ashok Kumar Sharma

and PW4 Smt. Poonam, the neighbours of PW1 Smt Vedwati are not the eye

witnesses as they reached the spot after the alleged incident took place so

their testimonies were wholly hearsay and therefore, inadmissible.

9. With regard to the identity of the dead body it is submitted by counsel for the

appellant that prosecution has failed to examine Pawan (husband of the

deceased) and Krishan Kumar (Jeth of the deceased) who identified the dead

body of the deceased Mamta and since they have not been examined, the

identity of the dead body is not established.

10. Counsel for the appellant also submits that circumstantial evidence is of

weak type of evidence and unless unbreakable chain is proved the conviction

is bad in law.

11.Counsel further submits that the arrest memo Ex.PW3/C, Personal search

memo Ex.PW3/D and sketch of knife Ex.PW3/E have not been signed by

PW11 SI Satender Pal Singh as deposed by him in his testimony. Also PW3

Ashok Kumar Sharma in his testimony deposed that the appellant/accused

Shiv Lal was arrested at 6:15pm or 6:30pm but as per the arrest memo

Ex.PW3/C on record, the appellant/accused was arrested at 11:55pm. On the

basis of aforesaid submissions counsel urged that these contradictions are

material enough to throw doubts about the credibility of the prosecution's

version, and ought to have led the Trial Court to acquit the appellant/accused

and in the alternative, that even if the appellant/accused is held guilty, he

could not have been convicted for murder u/s 302 of IPC.

12.Per contra, learned counsel for the State, submits that the prosecution has

been able to establish its case beyond any shadow of doubt. Counsel further

submits that the testimony of the material witnesses PW1 Vedwati, PW3

Ashok Kumar Sharma and PW4 Smt. Poonam coupled with the statement of

PW8 Dr. P Phukan who proved the MLC of deceased Mamta and the

statement of PW10 Dr. Sumit Tellewar who proved the post-mortem report

prove beyond reasonable doubt that it was the appellant/accused who

committed the murder of the deceased Mamta.

13.Counsel further submits that the recovery of knife and bloodstained pants of

the appellant/accused prove that he was the author of the crime.

14.Counsel for the state contended that the dying declaration made by the

deceased Mamta to ASI Habib Singh (PW6) that her jeth stabbed her with

the knife and the circumstantial evidence i.e recovery of knife from the

possession of appellant/accused, his bloodstained pants and the fact that

appellant/accused absconded from the house points towards the guilt of the

appellant/accused in commission of offence and trial court rightly convicted

him u/s 302 of IPC.

15.We have heard the learned counsel for the parties, considered the rival

submissions made by them and carefully perused the trial court record. The

prosecution in all examined 16 witnesses. In order to appreciate the

submission of learned counsel for the appellant, it would be useful to refer to

the evidence of some of the material witnesses, as noticed by the trial Court:

PW1 Vedwati deposed that on 26.02.2008 at about 6pm,

appellant/accused Shiv Lal started quarrelling with her and was

beating her when the deceased Mamta intervened and tried to

save her when appellant/accused stabbed her with a kitchen

knife. She further deposed that police recorded her statement

Ex.PW1/A, and she pointed out the place of occurrence and

identified the kitchen knife with which the appellant/accused

Shiv Lal stabbed the deceased Mamta.

In her cross-examination by learned defence counsel this

witness deposed that appellant/accused Shiv Lal did not stab

deceased Mamta with a knife and somebody told her that her

daughter in law (deceased Mamta) has been stabbed. She

further deposed in her cross examination that police arrived at

the spot and obtained her thumb impression on the document

Ex.PW1/A and the contents of Ex.PW1/A were not read over to

her by the police.

PW3 Ashok Kumar Sharma who is a neighbour of the deceased

Mamta has deposed that on 26.02.2008 at about 6:20pm he

heard loud noise and on hearing the same he came out of his

house and saw that PW1 Vedwati was crying "Shiv Lal ne apni

Bhabhi ko chaku Maar diya". He further deposed that

appellant/accused Shiv Lal was standing there with a knife in

his hand and deceased Mamta was lying in the house and blood

was oozing from her abdomen. He next deposed that the

appellant/accused was arrested in his presence vide arrest memo

Ex.PW3/C and one knife was recovered from the right side

pocket of the appellant/accused which was seized vide memo

Ex.PW3/F and disclosure statement ExPW3/G was made by the

appellant/accused.

PW4 Smt. Poonam who is also a neighbour of the deceased

Mamta deposed that on 26.02.2008 at about 6pm on hearing the

commotion she came out of the house and saw deceased Mamta

lying near the main door of the house and her clothes were

soaked in blood. She further deposed that persons who were

present there told her that appellant/accused Shiv Lal had

stabbed his bhabhi Mamta and appellant/accused was present

there having a knife in his hand but later he fled from the scene.

In her cross examination it was deposed by PW4 that Vedwati

(PW1) told her that appellant/accused Shiv Lal had stabbed

deceased Mamta and while they were taking the deceased

Mamta to the hospital in rickshaw, police arrived and deceased

Mamta told police officials that appellant/accused Shiv Lal had

stabbed her.

PW10 Dr Sumit Tellewar proved the post-mortem report

(Ex.PW10/A) and deposed that the cause of death was shock as

a result of antemortem injury to the heart produced by a sharp

cutting/stabbing weapon. He further deposed that injury no.1 as

mentioned in post-mortem report Ex.PW10/A is antemortem in

nature and is sufficient to cause death in the ordinary course of

nature. He next deposed that injury no.1 was possible by the

knife (Ex.PW10/B).

16.We may notice that there is some variation in the evidence of PW1, PW3

and PW4 but what is required to be considered is whether the aforesaid

variations are material and would affect the case of the prosecution

substantially. It is a settled law that every variation may not adversely affect

the case of the prosecution.

17. It can be seen from the above discussion that the prosecution had relied on

the testimony of PW1, PW3 and PW4. While PW1 Vedwati deposed in the

examination in chief recorded on 02.01.2009 in favour of the prosecution

about having witnessed the incident, she resiled from the version in the cross

examination conducted on 31.01.2009 and re-examination on 5.12.2011. In

the case of Khujji vs. State of Madhya Pradesh, AIR 1991 SC 1853 it was

held by the Court that:

"the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."

Relying upon the aforestated case, trial court chose to discard the cross

examination deposition of PW1, and relied only on her testimony recorded

during examination in chief.

18.The question is whether the Trial Court was justified in rejecting the cross

examination deposition of PW1 and solely relying on the testimony made in

examination in chief. We are of the view that the observation made by the

trial court was correct as the presence of PW1 Vedwati is not disputed at the

place of occurrence, nowhere in her examination she denied this fact that she

was not present at the place of incident. Also the statement of PW1 Vedwati

was recorded immediately after the incident and there is no reason why PW1

will falsely implicate her own son as she was the one who lodged the FIR

and narrated the incident to the police. In our opinion, the trial court rightly

felt that she had been either won over or intimidated during the interval

(between his examination in chief, and the time when her cross examination

took place).

19. In case of Syad AkbarVs.State of Karnataka (1980) 1 SCC 30 it was held

as under:

"As a legal proposition, it is now settled by the decisions of this Court, that the evidence of a prosecution witness cannot be rejected wholesale, merely on the ground that the prosecution had clubbed him 'hostile' and had cross-examined him."

20.In another case of Sat Paul v. Delhi Administration 1976 CriLJ 295,

similarly, it was observed that:

"Even in a criminal prosecution when a witness is cross- examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of is testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of is testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."

21. For the reasons stated above, we are of the view that there is no ambiguity

in the examination in chief of PW1 Vedwati as it clearly supported the

prosecution allegations totally about the appellant/accused Shiv Lal stabbing

the deceased Mamta. This finds corroboration in the testimony of PW4 Smt.

Poonam who deposed that she reached the place of occurrence and was told

by persons standing there that appellant/accused Shiv Lal stabbed the

deceased Mamta and spotted Shiv Lal there with a knife in his hand. The

testimony of PW4 is corroborated by the testimony of PW3 Ashok Kumar

Sharma who deposed that when he reached the place of occurrence PW1

Vedwati was crying "SHIV LAL NE APNI BHABHI KO CHAKU MAAR

DIYA". Also the presence of human blood on the weapon (knife) and pants

of the appellant/accused lends corroboration to the prosecution case. In these

circumstances, the reliance placed on, or the preference given by the Trial

Court to the examination in chief of PW1 Vedwati, on the one hand, and

discarding the statement in cross examination, was not improper. The

medical evidence, too vitally supports that version, since the death occurred

due to one fatal blow.

22.The last submission of the learned Counsel for the appellant is that in any

event, the present case does not fall within Section 302 of IPC but the same

would fall under Exception IV of Section 300 of IPC and the appellant be

given benefit of Section 304 of IPC as there was no motive on the part of the

appellant to kill the deceased Mamta who was his sister in law. Even as per

the prosecution the appellant had not pre-planned to kill anyone and the

appellant had no animosity with the deceased. The incident took place

because of sudden altercation when appellant/accused was beating his

mother (PW1) and deceased Mamta tried to intervene and he stabbed her

with a kitchen knife.

23.Also the present case is not such in which it can be said that the appellant

had inflicted injuries on the deceased with the intention to kill her or he had

the intention to cause such bodily injuries to the deceased which would be

sufficient to cause death in the ordinary course of nature and, therefore, the

case is covered under Exception IV to Section 300 of the Indian Penal Code.

24. To invoke the Exception IV of Section 300 IPC, four requirements must be

satisfied by the accused; he must show that (i) there was a sudden fight; (ii)

there was no premeditation on the part of the accused; (iii) the act of the

accused resulting in the death of the victim was done in the heat of passion;

and (iv) the assailant should not have taken any undue advantage of the

situation and should not have acted in a cruel manner. Unless all these

requirements are fulfilled an accused cannot get the benefit of exception IV

of Section 300 of IPC.

25.In order to consider the contention of learned Counsel for the appellant, it

would be fruitful to have a look at the law relating to culpable homicide.

The distinction between two types of culpable homicide that is, murder

and culpable homicide not amounting to murder has been analysed by the

Supreme Court in leading case titled as State of A.P. v. Rayavarappu

Punnayya AIR 1977 SC 45. The relevant portion of the judgment is

reproduced as under:

"In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the code practically

recognizes three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide which is defined in Section 300 as "murder". The second may be termed as "culpable homicide" of the second degree". This is punishable under the 1st part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section 304".

26.Let us now examine the present case in the light of abovementioned settled

law. It is well settled, that the question with regard to the nature of offence

has to be determined on the facts and in the circumstances of each case. The

nature of the injury, whether it is on the vital or non-vital part of the body,

the weapon used, the number of injuries inflicted, the circumstances in

which the injury is caused and the manner in which the injury is inflicted are

all relevant factors which may go to determine the required intention or

knowledge of the offender and the offence committed by him.

27.The prosecution has not placed any material on record with regard to any

previous grudge or any enmity, pre-planning by the Appellant or pre-

meditation or motive in causing death of the deceased Mamta.

28.In Surinder Kumar v. Union Territory, Chandigarh AIR 1989 SC 1094,

there was a heated argument between the parties followed by uttering of

filthy abuses. The Appellant/accused got enraged, picked up a knife from the

kitchen and gave one blow on the neck of the witness and three knife blows,

one on the shoulder, the second on the elbow and the third on the chest of the

deceased. The Supreme Court convicted the Appellant under Section 304 of

IPC.

29.In Krishna Tiwary and Anr. v. State of Bihar AIR 2001 SC 2410 where the

accused inflicted knife blows in the heat of passion without any

premeditation and without any intention that he would cause that injury, his

case was covered within Exception 4 to Section 300 IPC and he was

convicted by the Supreme Court under Section 304 IPC.

30.In the facts and circumstances of the case, we are of the view that there was

no premeditation or preplanning, there was no previous enmity between the

deceased and the appellant, the appellant had no motive to commit murder of

the deceased and one injury was caused to the deceased Mamta in a heat of

passion on an issue of deceased Mamta intervening between the

appellant/accused and his mother PW1 Vedwati with a kitchen knife. The

case is clearly covered under Exception IV of Section 300 of IPC. We

accordingly alter the conviction of the appellant from Section 302 IPC to

section 304 Part I of IPC.

31.After verifying the record, it appears that the appellant has nearly spent eight

years in jail including the remission earned by him during the period when

he was in jail. In view of the background of the present case and taking into

consideration all the facts and circumstances of the case, we alter

the sentence to the period undergone. The appellant be released forthwith, if

not required in any other case.

32.A copy of this order be sent to the Superintendent Jail.

33.The appeal stands partly allowed accordingly. Trial Court record be sent

back.

G. S. SISTANI, J

SANGITA DHINGRA SEHGAL, J MARCH 16, 2015 sc

.