Karan Singh vs State
2015 Latest Caselaw 3804 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                        CRL.A.179/2013
                               Reserved on: 20th April, 2015
%                              Date of Decision: 13.05.2015
KARAN SINGH                                     ..... Appellant
                         Through:    Mr.Chetan Anand, Advocate.
                    Versus
STATE                                     ..... Respondent

                         Through:    Ms.Aasha Tiwari, APP.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
ASHUTOSH KUMAR, J:

1. Karan Singh has been convicted by the impugned judgment dated

22.8.2012 passed by the learned Additional Sessions Judge, Saket Courts,

New Delhi in Sessions Case No.2/2009 (refer FIR No.508/2008,

P.S.Sangam Vihar) for murdering Shravan by stabbing him. By the order

of sentence dated 25.8.2012, the appellant has been sentenced to undergo

imprisonment for life and has been ordered to pay a fine of Rs.50,000/-

and on failure to pay the same, to suffer simple imprisonment for one

year for the offence under Section 302 of the Indian Penal Code ('IPC'

for short).

2. The case of the prosecution according to the first information

report (Ex.PW.14/A) is that one Giriraj Vashisht, PW.19 lodged his

statement (Ex.PW.26/A) alleging that on 14.8.2008 at about 11 PM in the

night while he was at his dairy shop in Sangam Vihar, Karan, (the

appellant), whom he knows from before, was standing at the crossroads

near the shop of one Rajan Singh (PW.15) and was abusing him. Many

people of the locality were asking him not to abuse but he was paying no

heed to such suggestions. It has further been alleged that at the same time

Shravan (deceased) came and prevented the appellant from abusing. The

appellant, infuriated, caught the collar of Shravan and whipped out a

knife and assaulted the deceased with the knife on his chest. As a result

of such assault, Shravan fell down on the ground. On hearing the noise,

younger brother of Shravan namely Gulbir (PW.1), came down of his

house to save and rescue his brother but he too was assaulted by knife on

his body. Another brother of Shravan namely Yudhister (PW.2) was also

hit on his face by means of fist. The residents of the locality made

attempts to apprehend the appellant but he managed to escape. It was also

stated in the First Information Report that a telephone call was made by

someone to the police whereupon PCR van came and took the injured

Shravan and Gulbir (PW.1) to AIIMS hospital. Injured Shravan was

declared brought dead whereas Gulbir and Yudhister were treated. On the

basis of the aforementioned statement, First Information Report vide

Sangam Vihar P.S case No.508/2008 was instituted for the offence under

Sections 302, 307 and 323 of the IPC.

3. The appellant challenges his conviction, on the ground of failure

and lack of proper appreciation of evidence. The prosecution, in order to

support its case has examined 29 witnesses. It would not be necessary for

us to deal with all the witnesses except the material ones whose

testimony need be examined to accept or discard the prosecution case.

4. Gulbir Singh, (PW.1) who is an eye witness to the occurrence, has

clearly deposed before the Court that when he heard commotion in the

street, he came down from the first floor of his house and saw that the

appellant along with his three associates namely Subhash, Bablu and

Chotu had held of his brother Shravan captive (Subhash, Bablu and

Chotu have not been put on trial). In his presence, the appellant stabbed

his brother in the chest. When he tried to save his brother, Subhash held

him from behind whereas Bablu and Chotu stabbed him with a knife.

After receiving injuries PW.1 lost consciousness for a moment. He

thereafter regained consciousness and stood up. After the occurrence, the

appellant and his three associates fled away from the spot. The incident,

as stated by PW.1 was seen by others in the locality. In the meantime, a

PCR van came and took him and his brother Shravan to Trauma Centre,

AIIMS Hospital, where the brother of PW.1 was declared brought dead,

whereas PW.1 received treatment.

5. Gulbir Singh (PW.1) has also testified to the fact that Yudhister,

PW.2, his other brother, had also come and he too was given a fist blow

on his face by the accused persons. The cause, as per PW.1, was that the

appellant at an earlier point of time was accosted and scolded by the

deceased for an act of theft in a lady's house. Appellant used to consume

liquor and abuse them standing in the street. The appellant therefore

nursed a grudge against the deceased.

6. PW.1 was discharged from the hospital on 15.9.2008. The doctor

had taken his blood stained clothes. The blood stained clothes of the

deceased was also seized by the doctor. The post mortem was done and

thereafter the dead body was handed over to the family members. The

deceased was taken to the village for cremation and PW.1 returned from

his village on 28/29.9.2008. It was only then that his statement under

Section 161 of the Code of Criminal Procedure, 1973 (Cr.P.C for short)

was recorded by the police (Ex. PW.1/DA).

7. Similar assertions have been made by PW.2 Yudhister, brother of

PW.1 and the deceased. He has narrated the incident and that he had seen

the appellant stabbing the deceased. His statement was recorded by the

police on 28/29.9.2008 (Ex. PW.2/DA). The suggestions given to him

that the deceased was killed by somebody else was vehemently denied.

8. Dr.Arvind Kumar (PW.13), conducted the post mortem of the dead

body of the deceased Shravan. The post mortem report (Ex.13/A) reveals

the following ante mortem injuries on the person of Shravan.

1. Stab wound of size 3x1.6 cm present just medial to left nipple, about 14 cm deep which 5 cm left lateral to midline and 21 cm below left shoulder. Tract directed rightward, backward and upward going through intercostal space number found, cutting the intercostal muscles, pericardium and origin of pulmonary truck (1.5 cm long). Pericardium filled with blood about 500 mm. partially clotted.

2. Superficial abrasion of size 2x0.4 cm, over left supra- clavicular fossa, reddish brown in colour.

3. Superficial abrasion 2x0.5 cm, obliquely present over right arm, frontal aspect, 11 cm below right shoulder.

4. Skin (epidermis) over pissiform tuberosity (antero medial) aspect of right wrist found finely sliced off. No extravassation of blood."

9. The opinion of PW.13 about the cause of death is hemorrhagic

shock consequent to stab injury No.1 caused by sharp edged weapon

which was sufficient in the ordinary course of nature to cause death.

Injury No.4, it has been stated by PW.13, was also possible by a sharp

edged weapon. Whereas injury Nos.2 and 3 were possible with blunt

force. All the injuries were found to be ante mortem in nature.

10. PW.13 was asked to clarify regarding injuries by use of the

weapon vide letter dated 6.12.2008 (Ex.PW.13/C). On receipt of the

letter, he gave his opinion in detail (Ex.PW.13/D). He identified the knife

(Ex.PX). However, he has stated that the knife was not shown to him

prior to 6.12.2008.

11. The viscera was preserved for Toxicological analysis. The FSL

report (Ex.PW.3/A) discloses that blood sample (Ex.1C) contained ethyl

alcohol 415 mg/100 ml of blood.

12. It would be relevant here in this context to refer to the evidence of

Dr.Shabir (PW.10) who prepared the MLC of the deceased in the first

instance. Dr.Shabir, (PW.10) has stated that besides the stab injury on the

left pericardium which was 4 cm in width (depth was not measured),

there was no other injury. The MLC has been brought on record as

exhibit PW.10/A.

13. From the deposition of PW.10 and PW.13 the fact that the

deceased died a homicidal death is established and proved. During the

course of arguments, it was urged that the testimonies of PW.10 and 13

are not in consonance with each other as PW.10, while preparing the

MLC (Ex.PW.10/A) found only one injury on the chest and no other

injury on the person of the deceased. However, post mortem report refers

to four injuries.

14. From a perusal of the post mortem report it is very clear that the

grave and vital injury found on the person of the deceased is injury No.1,

whereas the other three injuries are only in the nature of abrasion which

might have escaped the attention of PW.10 or was not considered

necessary to state. We do not see any anomaly in the two reports and

have no reason to disbelieve the fact that the deceased was done to death

in the same occurrence where the appellant is said to have inflicted the

stab wound.

15. What is noticeable from the testimonies of PWs.1 and 2 is that

both of them have not attributed the assault on them by the appellant. The

first information report, on the contrary, lodged on the statement of

PW.19 discloses that the appellant assaulted PWs.1 and 2; PW.1 by

knife, whereas PW.2 by fist. The MLCs of PWs.1 and 2 (Ex.PW.29/A

and 29/B) have been proved by PW.29 who has identified the

handwriting of Dr.Lokesh who prepared the MLC. We will be referring

about this aspect later.

16. Giriraj Vashisht, (PW.19) is also an eye witness to the occurrence

and has testified to the assault on the deceased by the appellant. PW.19

tried to lift the deceased in order to save him but since the PCR van came

at the opportune time, the injured Shravan (deceased) and Gulbir (PW.1)

were taken to AIIMS hospital, where Shravan was declared dead.

17. PW.19 has stood the test of cross examination and nothing could

be elicited from him so as to disbelieve him. His presence at the place of

occurrence was most natural. He runs a dairy shop and was present in

front of his shop when the occurrence took place. There is some

contradiction about the injuries caused to PW.1 and 2 as they have not

stated about their having been assaulted by the appellant, but this would

not affect and dent their testimony on involvement of the appellant

Karan Singh and that they had seen the appellant inflicting the stab

injury. In fact, such contradiction is of a very trivial nature and does not

make PW.19 even a bit doubtful. The occurrence admittedly took place

sometime before midnight. On the narration of events by the witnesses, it

is very apparent that many persons had assembled there. It is quite

possible that in the melee, PW.19 did not see as to who assaulted PW.1

and PW.2. The entire focus and attention was on the injured Shravan,

who, in the first instance was stabbed by the appellant as a result of

which he bled profusely and fell down.

18. Nem Singh, (PW.20) and Shyamwati, (PW.16) have also witnessed

the occurrence and the statement by both the witnesses are quite in

consonance with the prosecution version namely the appellant had

stabbed the deceased.

19. The eye witnesses account which we have referred to above, brings

the appellant within the four corners of the mischief of Section 300 IPC.

The appellant had the intention and knowledge, both, of inflicting such

injury and the impact and the end result of such injury.

20. Smt.Gyatri Devi (PW.11) had admitted of calling the police when

the incident had taken place. The PCR van came only after that.

21. Rajan Singh (PW.15), before whose shop, the appellant was

standing and abusing, has not fully supported the prosecution version but

has admitted that the appellant was abusing in the street and he had

requested him to go away.

22. We do not deem it proper to fully reject the entire testimony of

PW.15. Almost ad nauseum, the position of law in this regard is settled.

The whole of such evidence of a hostile witness is not to be discarded

and relevant part thereof, which is true and trustworthy can be made use

of. (Refer Bhagwan Singh vs. State of Haryana, AIR 1976 SC 202;

Rabindra Kumar Dey vs. State of Orissa, AIR 1977 SC 170; Khujji @

Surendra Tiwari vs. State of Madhya Pradesh, AIR 1991 SC 1853).

PW.15 confirms the presence of the appellant on the fateful night on the

street at the relevant time.

23. Sunder, (PW.15) and Vijay Kumar, (PW.18), both cousins of the

deceased have identified the dead body of the deceased.

24. The learned advocate appearing for the appellant submitted that the

prosecution case is highly doubtful in as much as there is no reference of

any source of light and therefore, identification of the assailant especially

when the allegation is about the occurrence taking place in the night,

becomes doubtful. The other grounds for doubting the prosecution case is

that, inexplicably, the other three accomplices of the appellant namely

Subhash, Chotu and Pappu have not been made accused and the appellant

has deliberately and wrongly been put to trial, and that the knife with

which the appellant is said to have attacked the deceased was not shown

to PW.13, the doctor conducting the post mortem prior to 6.12.2008

when the same was shown to him. A grievance also has been laid on the

ground that the three scalp hair recovered was not matched with the

appellant so as to ascertain whether the knife was handled by him only

and nobody else. It has been further argued that there has been

inconsistent statement of the witnesses at the trial which go to the root of

the case and has made the prosecution case highly suspicious.

25. The submissions on behalf of the defence has been noted by us

only to be rejected. The appellant and the witnesses who have claimed to

have seen the occurrence were all residents of the same street. It is a

matter of common knowledge that even during night, there is some light

be it street light, bulbs outside the shops, residence etc. and it would not

be difficult for a neighbour or the person of the same locality to identify

another known resident. The knife may not have been shown to the

doctor (PW.13) prior to the post mortem, nonetheless the opinion

regarding the knife was taken by PW.13 later. The knife Ex.P4 itself was

recovered later on. The statements of witnesses are consistent and we

have not been able to find any material inconsistency between the

testimonies of witnesses inter-se.

26. In order to substantiate the allegation against the appellant and the

recovery, ASI Pritam Singh, PW.26 has deposed that he had arrested the

appellant on 15.9.2008. The appellant made a disclosure statement

(Ex.PW.12/C) and pursuant to his disclosure a blood stained knife,

wrapped in polythene, was recovered from the right side corner of the

roof inside the room. The recovery of the knife, we feel, lends support to

the prosecution version. The recovery was from a private room and not a

public place and knowledge about the same could have been only with

the appellant and nobody else.

27. PW.26 has also testified to the fact that the clothes of the appellant

which he was wearing at the time of the incident were seized. The blood

group on the knife or on the clothes of the appellant though was found to

be of human origin, could not be ascertained. The cut marks on the

clothes of the deceased have also been opined upon by the FSL

authorities (PW.5, Parshuram Singh) as having been caused by a sharp

edged weapon thereby lending credence to the theory of the use of knife

(Ex.P4) in the crime.

28. Cumulatively the medical, forensic and the ocular evidence which

have been referred to above do not leave any room for doubt that the

appellant had killed the deceased by stabbing him in his chest.

29. The presence of the appellant at the place of occurrence and his

involvement, when put to the appellant in course of his Section 313

Cr.P.C statement, had elicited the response that at the time of the

occurrence the appellant was under the influence of liquor. He fell down

after the quarrel and received injuries on his head. However, he has

denied to have known either the deceased or any of the witnesses.

30. The deceased also, according to the FSL report of viscera

(Ex.PW.3/A), had consumed liquor. However, this fact, of itself, will not

in any manner lessen the guilt of the appellant.

31. We have noticed that the two brothers of the deceased, PW.1 and

PW.2 have spoken about the active involvement of Subhash, Pappu and

Chotu, along with the appellant. The other witnesses have not adverted to

their participation. Despite this, it is disquieting that Subhash, Pappu and

Chotu have neither been charge sheeted nor put on trial. When specific

averments were made by two of the eye witnesses during the course of

trial, it was expected of the Trial Court to have deliberated on the issue

whether they also ought to have been summoned and tried.

32. While scrutinizing the evidence of the witnesses, we have noticed

that PWs.1 and 2 have not stated that the appellant had attacked them.

The statement with respect to assault on their person is vague and there is

a general and omnibus allegation of their having been assaulted by the

accused persons. No doubt PW.1 has received sharp edged injuries but

who caused the same is unknown. In that view of the matter the appellant

cannot be saddled with the charge of Section 307 or 323 of the IPC. He

has rightly been acquitted of the aforesaid sections by the learned Trial

Court.

33. We are in total agreement with the Trial Court so far as the charge

under Section 302 IPC against the appellant is concerned. The

prosecution has been able to prove, squarely and beyond reasonable

doubts the charge of murder as against the appellant.

34. Accordingly, we see no reason to interfere with the conviction and

the sentence as well.

35. The appeal fails and is dismissed.

36. Trial Court records be returned.

                                               (ASHUTOSH KUMAR)
                                                    Judge



MAY 13, 2015                                     (SANJIV KHANNA)
k                                                    Judge