Naresh Kumar vs State Of Nct Of Delhi & Others
2016 Latest Caselaw 7414 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CRL.A. 715/2012
                               Date of Decision: 15.12.2016
       NARESH KUMAR                              ..... Appellant
                   Through:          Ms.Inderjeet Sidhu, Amicus
                                     Curiae

                  versus
    STATE OF NCT OF DELHI & OTHERS .... Respondents

Through: Ms.Aashaa Tiwari, APP for the State CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MS. JUSTICE ANU MALHOTRA

GITA MITTAL, J (Oral)

1. The appellant assails his conviction by the judgment dated 10th May, 2010, passed by the learned Additional Sessions Judge in Sessions Case No.118/09 arising out of FIR No.898/2005 registered under Section 302 of the Indian Penal Code and the Section 27/54/59 of the Arms Act registered by the police station Prashant Vihar with regard to an incident which took place on 15th October, 2005. The appellant also challenges the consequential order of sentence dated 2nd June, 2010 whereby he stands sentenced to undergo imprisonment for life and fine of Rs.20,000/- in default to undergo further imprisonment for a period of six month under Section 302 of the IPC. He was also sentenced to undergo Rigorous Imprisonment for a period of one year under Section 25 of the Arms Act.

2. For reasons of clarity we first consider the police intervention in the incident and then the evidence on the unfolding of the events.

3. The record of the case shows that at about 10:53 a.m. on 15 th October, 2005, a person named Jai Prakash informed the Police Control Room from telephone No.9213225959, that one lady has been murdered and the dead body is lying in the park of Sector 16- 17, Dividing Road, Rohini, Delhi. This information was entered in the police record as DD Entry No.373 as Ex.PW-14/A. The intimation of this incident was sent by the Police Control Room to the police post Sector 16 under the jurisdiction of Police Station Prashant Vihar at 10:55 a.m. which was logged as DD No.22 (Ex.PW-13/A) by HC Laxmi Narain (PW-13). A copy thereof was handed over to SI Sunil Kumar (PW-16) who along with ASI Bal Kishan (PW-3), Ct. Jitender Kumar (PW-10), Ct. Radha Kishan (PW-2), proceeded to the spot. The record of the police control room shows an entry report logged by police van bearing No.T53A at 11:10 hours which reported from the spot that the lady who had been stabbed with a knife had been removed to a private hospital in a TSR (auto rickshaw). The police control room notes that ASI Bal Kishan was present at the spot. It is also noted that the assailant had been chased by the public and thrashed by the public and later on had also been removed to the hospital by the CAT Ambulance.

4. This record of the police control room was proved in evidence in the testimony of Ct. Gurmeet singh (PW-14). He also

proved the receipt of information from Jai Prakash and was responsible for filling the PCR form bearing No.373 at the spot.

5. The prosecution has examined SI Sunil Kumar (PW-16) who was the first investigating officer of this case. SI Sunil Kumar has stated that when he reached the spot at DDA Park, G-6 Block, Sector-16, Rohini, he found a crowd gathered there. He also learnt that one lady had been stabbed by her husband and had been shifted to Baba Sahab Ambedkar Hospital (hereinafter called as BSA Hospital). SI Sunil Kumar (PW-16) along with other officers at the spot, proceeded to the BSA hospital and collected the MLC No.5603/05 of Santra Devi, the victim. Surender Kumar (PW-4), who was the son of the deceased, met SI Sunil Kumar (PW-16) at the hospital and disclosed that his father Naresh Kumar was employed with MCD as Safai Karamchari who used to keep beating his mother Santra Devi on minor issues as he nursed doubts about his mother‟s fidelity. Surender Kumar (PW-4) also disclosed that his father was a habitual drinker and used to keep telling his mother to stop such activity, otherwise he would take her life some day. Surender Kumar (PW-4) disclosed that he had intervened to save his mother on several occasions for this reason. Because of his father‟s alcoholism, he did not give money in the house as well, for which reason his mother as well as his elder sister were compelled to take up cleaning jobs in other houses. Surender Kumar (PW-4) also disclosed that three days prior to the incident, in a fight, his father had threatened his mother that he would kill her. For this

reason, Surender Kumar (PW-4) had told his mother Santra Devi that she should not accompany his father alone to any place.

6. So far as the incident on 15th October, 2015 is concerned, Surender Kumar (PW-4) had disclosed that at about 8:30 a.m. that morning his father had asked his mother to accompany him to the bank to take out money for the purpose of getting the house white- washed for the Diwali festival. Surender Kumar (PW-4) told his mother not to accompany his father, however, Santra Devi was persuaded by her husband to accompany him. Surender Kumar (PW-4) stated that at about 10 am he left for his place of work in the shop in Sector-16, Rohini. He reached at3 his place of work at about 10:45 a.m. After having undertaken the cleaning of the shop, when he was standing outside the shop, towards Sector 11, he saw his parents proceeding towards the Sector-16, Mother Dairy Booth. A thought struck him at that point that his father might kill his mother and that he should stop his mother from proceeding with his father. Before he could complete his thought, his parents had proceeded a little ahead. Within a minute or two thereafter, he heard his mother‟s screams at which he ran towards the place from which the sound was coming. Surender Kumar (PW-4) claimed that he ran towards the corner of G/6 Sector-16 DDA park, where he saw that his father was continuously attacking his mother with a knife and that some persons of the public were making a noise and running towards that corner; that his mother had fallen on the ground; his father started running from the spot and threw the knife

somewhere which, because of the crowd, he could not spot where. The public overpowered his father and started beating him. Surender Kumar (PW-4) told the police that he put his bleeding mother in a TSR and rushed her to the hospital where the doctor declared her as dead. This statement was scribed by Inspector Sunil Kumar (PW-16) as the „rukka‟ and after making the endorsement, handed over to Ct. Radha Kishan for taking it to the police station for registration of the case.

7. Based on this statement FIR No.898/2005 (Ex.PW-16/B) was registered by the Police Station Prashant Vihar which registration was logged as DD no.14 A and DD No.15 A (Ex.PW- 16/C) at the police station Prashant Vihar. A copy of the FIR as well as the rukka were handed over to the second IO, Inspector Ram Mehar Singh (PW-15).

8. It appears that the appellant Naresh Kumar was arrested also at the BSA hospital on same day at 4:30 p.m. vide arrest memo (Ex.PW-4/E) and taken to the spot. His personal search was effected by the Memo Ex. PW-4/F. Clothes of Naresh Kumar, being a shirt having red, blue and cream colour stripes and one grey pant were also seized vide seizure memo Ex. PW-4/I .

9. At the spot, the Crime Team stood summoned. Photographs were taken and the crime team prepared its report (Ex.PW-15/A). Seizure of blood stained earth, grey colour hawai chappals was effected from the spot vide seizure memo Ex.PW-4/B, C and D respectively, placed in a separate pullanda and sealed with the seal

of RS. The police also seized the blood stained clothes which had been worn by Surender Kumar (PW-4) while shifting his mother to the hospital vide arrest memo (Ex.PW4/D1) and kept in a sealed pullanda.

10. It appears that the appellant made a voluntary disclosure statement to the police (Ex.PW-14/G). Pursuant thereto he got recovered a knife (Churi) from bushes near the spot. The Investigating officer prepared a sketch of the said knife (Ex.PW- 15/C). The knife was wrapped in cloth and sealed with the seal of RS and serial No.5 was given to the pullanda. The knife was taken to the police station vide seizure memo EX.PW-4/H. We find that Inspector Ram Mehar Singh, drew up a sketch of the knife (Ex.PW-15/C), carefully noting therein the dimensions of the blade and handle. The knife was 9.5 inches in length and 2.5 inches in width.

11. On the request of the police, post-mortem was conducted on the body of Santra Devi on 16th October, 2005 by Dr.Anil Shandilya (PW-9) who proved his report in the witness box as Ex.Pw-9/A & Ex.PW-9/B. The doctor found the following twenty ante mortem injuries on the body of the deceased:

"Ante-mortem Injuries:

i. Penetrating incised wound left side chest 11 cm below left nipple, 9.5 cm from mid line size 5cm X 1 cm X Cavity deep with well defined regular margins with dried up blood clots.

ii. Incised wound 2.5 cm above and medial to left nipple 8cm from mid line 1.5 cm X 1cm X S,.C. deep with sell defined regular margins, both angle acute with dried up blood and clots along margin.

iii. Incised wound left side chest 3cm from mid line 8cm medial to left nipple size 2cmX 0.5 cm X S.C. deep, with both angled acute well defined regular margin with dried up blood clots along. iv. 4.5 cm from mid line left side chest 2.3 cm X 1.5 cm X S.C. deep incised wound with well defined regular margins with dried up blood clots along margins both angle acute 3.4 cm from injury no.1.

v. Penetrating incised wound 9 cm from umbilicus, 29 cm from left nipple, 5.5 cm from mid line left side abdomen size 3 cmX 1 cm X cavity deep with both angles acute with well defined regular margins with dried up blood clots.

vi. Incised would 16 cm from left anterior superior iliac spine on left anterior aspect thigh size 4cm X 1 cm X S.C. to muscle deep both angles acute with regular margins with dried up blood clots. vii. 17 cm from injury no.6, incised wound anterior aspect left thigh size 3 cm X 1.5 cm X S.C. deep with well defined regular margins and blood clots along.

viii. 7 cm from injury no. 7, 2 incised wound, dorsal aspect of left knee intervening distance 2 cm from each other size 2.5 cm X 1 cm and 3 cm X 0.5 cm with well defined regular margins with dried up blood clots.

ix. Incised wound 2 cm from left cubital fossa size 7cm X 2cm X muscle deep anterior aspect well defined regular margins with dried up blood clots.

x. Incised wound left distal forearm flexor aspect,

2 in number adjoining each other size 1.5 cm X 0.5 cm X S. C. deep 3 cm X 0.5 cm X S.C. deep with well defined regular margins with blood clots.

xi. Incised wound right upper chest 6cm above right nipple, 8cm from mid line size 1cm X 0.5 cm X S.C. deep both angles acute well defined regular margins with blood clots.

xii. 2.5 cm from mid line below nipple 6.8 cm right side chest size 1cm X 0.5 cm X S.C. deep well defined regular margins with blood clots. xiii. Penetrating incised wound from right nipple 25 cm on right side abdomen 11 cm from umbilicus size 1.5 cm X 1 cm X cavity deep with well defined regular margins with blood clots. xiv. Incised wound size 5cm X 1.5 cm X S.C., deep with well defined regular margins on right hand with dried up blood clots.

xv. Incised wound anterior aspect right thigh 4 in number of varying size from 1.6 cm X 0.8 cm to 2.6 X 1.1. cm S.C. with well defined regular margins with blood clots.

xvi. Incised wound medial aspect right side leg below knee sxe 3cm X 1 cm X S.C. deep with week defined regular margins with blood clots. xvii. 19 cm from lower border of neck penetrating incised wound obliquely across mid line back of check 23 cm from natal cleft size 3.5 cm X 1.5 cm X cavity deep with well defined regular margins with dried up blood clots.

xviii. 2.5 cm left to mid line. 9 cm from injury 17 below back of chest size 5 cm X 1.2 cm X Cavity deep with well defined regular margins with dried up blood clots.

xix. 58.5 cm, 56 cm and 47 cm from head back of left gluteal and thigh incised wound of size 6cm X 1.5 cm, 6cm X 1.4 cm and 7 cm X 1.5 cm muscle deep with well defined regular margins

with dried up clots.

xx. 4 cm above elbow back of left arm incised wound of size 2.5 cm X 1.1 cm X S.C. deep with well defined regular margins with dried up

correspondingly penetrating into chest cavity with corresponding cuts in left lung, heart through and through in respective intescostal spaced 6th 7th and cutting 8th and 9th rib correspondingly and injury no.5 and 13 penetrated to abdominal cavity cutting to coils of intestine and left and right kidney correspondingly chest cavity and abdominal cavity full of liquid blood and clots about 2.2 litres and 1.1 litres."

12. The doctor opined the cause of death as " haemorrhagic shock resulting from injury to lung, heart, kidney, coils of intestine which was sufficient to cause death in ordinary course of nature consequent upon penetrating injury cause by sharp edged weapon". The post-mortem was conducted at 12:15 a.m. and the time of death was opined as approximately 24 hours prior thereto, corroborating the statement of Surender Kumar (PW-4).

13. The doctor had preserved the clothes of the deceased as well as her blood sample in a piece of gauze sealed and handed over to the police office.

14. It appears that the police produced the recovered knife before the doctor (Dr.Anil Shandilya) and also sought his opinion as to whether the recovered knife (Churi) could be the weapon of the offence. The doctor also prepared a sketch of the knife which

was produced before him Ex.Pw-9/C. PW-9 Dr.Anil Shandilya has also noted the dimensions of the knife in EX.PW-9/C which was admeasuring 24cm in length. After examining the recovered knife which had one blunt edge and a sharp edge on the other side, Dr. Anil Shandilya (PW-9) has given his opinion on 5th December, 2005 (Ex.PW-9/D) that the above injuries mentioned in the post mortem were possible to be caused by the weapon examined or a similar like weapon. The weapon was re-sealed by the doctor and handed over to the investigating officer.

15. It is important to note the history noted by Dr. Raj Mohan Trivedi (PW-5) who first examined the victim when she was brought to the hospital. He deposed that Smt.Santara Devi was brought dead to the hospital and he recorded the MLC No. 5603/05 (Ex.PW-5/A) on 15th October, 2005 at 11:05 a.m. The doctor has noted on Ex.PW-5/A that the patient Santara Devi was brought to the hospital by her son Surender Kumar who had informed that she had been "allegedly stabbed by her husband". Thus again, corroborating the statement made by Surender Kumar to the police in the rukka.

16. So far as the appellant Naresh Kumar is concerned, he was also examined by Dr. Raj Mohan Trivedi at the BSA Hospital at 1:20 p.m. on 16th October, 2005 and his MLC recorded which was proved as Ex.PW-5/B.

17. During investigation, the site plan was prepared of the spot, at the instance and pointing out of Surender Kumar (PW-4), the son of the deceased. The site plan is Ex.PW-15/B.

18. The seized articles, kept in duly sealed pullandas in seven parcels, were sent to Forensic Science Laboratory, Rohini, Delhi by the SHO of Police Station Prashant Vihar and were subjected to a forensic examination. The report of the Forensic Science Laboratory was proved by PW-17 Sh.V Shankaranayanan as Ex.PW-17/A and B.

19. In the laboratory the forwarded articles were given the following exhibit marks:

"DESCRIPTION OF ARTICLES CONTAINED IN PARCEL

Parcel „1‟ :One sealed cloth parcel sealed with the seal of „R.S‟containing exhibit „1‟ Exhibit '1' :Vegetative material along with earth having brown stains described as 'Blood stained grass and soil'. Parcel „2‟ :One sealed cloth parcel sealed with the seal of „R.S‟containing exhibit „2‟ Exhibit „2‟ : Vegetative material along with earth described as „Sample soil and grass‟.

Parcel „4‟ :One sealed cloth parcel sealed with the seal of „R.S‟containing exhibits „4a & 4b‟ Exhibit '4a' :One T-shirt having brown stains. Exhibit '4b' :One pants having brown stains. Parcel „6‟ :One sealed cloth parcel sealed with the seal of „R.S‟containing exhibits „6a & 6b‟.

Exhibit '6a' :One shirt having brown stains. Exhibit '6b' :One pants having brown stains. Parcel „7‟ :One sealed cloth parcel sealed with the seal of „FMT BJRM HOSPITAL DELHI‟containing exhibit „7‟ Exhibit '7' :One weapon of offence with metallic blade and wooden handle having rusty brownish stains. Parcel „8‟ :One sealed cloth parcel sealed with the seal of „FMT BJRM HOSPITAL DELHI‟containing exhibits „8a‟, „8b‟, „8c‟ & „8d‟ Exhibit '8a' :One lady's shirt having brown stains. Exhibit '8b' :One brassier having darker stains. Exhibit '8c' :One chunni having darker stains. Exhibit '8d' :One salwar having brown stains. Parcel „9‟ :One sealed envelope sealed with the seal of „FMT BJRM HOSPITAL DELHI‟containing exhibit „9‟ Exhibit '9' :Brown gauze cloth piece described as 'Blood sample'.

20. After conducting the forensic examination of these articles vide (Ex.PW-17/A), the laboratory reported as follows:

" RESULTS OF ANALYSIS

1. Blood was detected on exhibits '1', '4a', '4b', '6a', „6b‟, „7‟, „8a‟, „8b‟, „8c‟, „8d‟ & „9‟.

2. Blood could not be detected on exhibit „2‟."

21. A further serological analysis was conducted on the exhibits on which blood was identified and its grouping disclosed. As per the report Ex.PW-17/B, the following was reported:

"Portion of exhibits as detailed in the main Biology Report have been examined using various serological techniques. The results obtained have been analysed as given below:

Exhibits                     Species        of ABO Group/Remarks
                             Origin
„1‟    Blood     stained Human                  No reaction.
vegetative material
„2‟ vegetative material No reaction             ----
(Control)
'4a' T-shirt                 Human              'O' Group
'4b' Pants                   Human              'O' Group
'6a' Shirt                   Human              'O' Group
„6b‟ Pants                   Human              No reaction
'7' Weapon of offence        Human               No reaction
„8a‟Lady‟s shirt             Human              No reaction
„8b‟ Brassier                Human              No reaction
„8c‟ Chunni                  Human              „O‟ Group
„8d‟ Salwar                  Human              „O‟ Group
'9' Blood stained gauze Human                   'O' Group
cloth
                                                       (Emphasis by us)

22. We find that the laboratory identified the blood group „O‟ as that of the deceased on Exhibit-9, her blood sample on the gauze. The blood group „O‟ of the deceased thus was also confirmed on all her clothes which were forwarded to the laboratory.

23. It is also reported in Ex.PW-17/B that blood „O‟ group was identified on Exhibit 6(a) which was the shirt worn by the appellant before us, which had been seized as well as Exhibits 4(a) & (b) which were the T-shirt and pant which were worn by Surender Kumar PW-4.

24. So far as the knife (Exhibit 7 in the laboratory report) is concerned, we find that vide Ex.PW-17/A, the laboratory did identify human blood on the recovered knife, though the group could not be identified as per Ex.PW-17/B.

25. After completion of the investigation, chargesheet was filed before the Metropolitan Magistrate and by an order passed on 3rd October, 2006 the case was committed for trial before the learned Additional Sessions Judge. The appellant was charged with commission of the offence of murder of his wife under Section 302 of the IPC. A separate charge under Sections 25/27 of the Arms Act was also framed. The appellant pleaded not guilty and claimed trial.

26. During trial, the prosecution examined 17 witnesses in support of the charge. The appellant was given an opportunity to explain the incriminating circumstances under Section 313 of the Code of Criminal Procedure.

27. After a careful scrutiny of the evidence led by the prosecution as well as the explanation of the appellant, the learned trial judge by its judgment dated 10th May, 2010 found the

appellant guilty for commission of both the offences with which he was charged. By a subsequent order on the point of sentence order dated 2nd June, 2010, the appellant was sentenced to undergo imprisonment for life and a fine of Rs.20,000/- for commission of the offence under Section 302 IPC and in default of payment of fine sentenced to undergo simple imprisonment for a period of six months. For his conviction under Section 25 of the Arms Act, the appellant was sentenced to undergo rigorous imprisonment for a period of one year. The Trial Court recorded that the sentences would run concurrently. It was noted that the convict has not paid the fine.

28. This judgment of conviction and order of sentence have been assailed before us by way of present appeal. We have heard Ms.Inderjeet Sidhu, amicus curiae, for the appellant and Ms. Aashaa Tiwari, learned APP for the State, both of whom have very ably assisted us and meticulously taken us through the record.

29. It is to be noted that the case of the prosecution primarily rests on the eyewitness account. The prosecution examined Surender Kumar (PW-4) (son of the appellant and the deceased Santra Devi) and Jai Prakash (PW-7) as it main witnesses.

30. Surender Kumar (PW-4) was also the complainant on whose statement (EX.PW-4/A), the FIR came to be registered. This witness, though supporting the making of the statement Ex.PW- 4/A, turned partially hostile in the witness box and retracted from his prior statement (Ex.PW-4/A) of having witnessed his father

actually stabbing his mother in the park. He however corroborated the statement recorded by the police to the extent that while standing outside his office at about 10:45 a.m. on 15 th October, 2005, he had noticed his parents going towards sector-11 Rohini and heard noise of his mother after sometime. In court the witness testified that he found his mother in injured condition as she had received knife injuries on her stomach and that he had rushed his mother to the BSA Hospital. The doctor declared her dead. The witness also stood by his statement with regard to the investigation conducted by the police at the spot and seizure of the articles including his mother‟s slippers and his own clothes.

31. This witness Surender Kumar (PW-4) proved the seizure memo of the knife Ex.PW-4/H as well as its sketch. Even though he stated that he could not remember as to where his father Naresh Kumar got the knife recovered from, he identified his signatures on Ex.PW-4/H, the seizure memo of the knife. Surender Kumar (PW-

4) has clearly testified that his father Naresh Kumar had handed over the "blood stained clothes which he was wearing at the time of the incident" to the police. The witness has also admitted the suggestion that his father had thrown the knife on seeing the members of the public, though he would not give the reason why his father was beaten by the public.

32. Further admissions have been made by Surender Kumar (PW-4) in his cross-examination by the counsel for the accused. The witness has stated that he heard cries of his mother at about

11/11:30 a.m and denied the suggestion that he had not seen his father in the corner of the park or that the investigation was not carried out in his presence. The witness also stated that his father used to beat his mother in the presence of all family members and categorically denied the suggestion that the appellant never beat his mother. In his testimony, PW-4 has also admitted that talks of withdrawing the money from the bank took place between his mother and father on 14th October, 2015 at about 8:15 a.m. to 8:30 a.m. morning.

33. We may also examine the eye-witness account given by Jai Prakash (PW-7) who was a florist and was selling his flowers near bus stand at the G Block, Sector-16, DDA Park pavement since for the last about 10 to 15 years. He stated that he remained present at the spot all twenty four hours. Jai Prakash (PW-7) recognized the appellant for the reason that he was employed as sweeper with the MCD who used to sweep where he (Jai Prakash) was selling his flowers.

34. The testimony of PW7 is on all fours with the statement as recorded in the rukka Ex.PW-4/A. This witness has given a graphic account of the incident. He has stated that at about 11 a.m. he heard noise of a woman who was screaming „bachao..bachao". He also saw the appellant giving repeated churi blows to a woman who was rolling on the ground and heard the noise made by the public. After giving multiple injuries to the woman, the appellant Naresh Kumar tried to escape from the spot, however, he was over

powered by the public persons. He lateron came to know that the victim was the wife of the appellant. Jai Prakash (PW-7) also stated that PW-4 took the injured woman to the hospital.

35. Jai Prakash (PW-7) has also stated that he gave call from his mobile number to the Police Control Room. The witness has also affirmed that the appellant was also sent to the hospital. The testimony of PW-7 Jai Prakash could not be assailed by the appellant in cross-examination.

36. The testimony of the eye witness Jai Prakash (PW-7) stands corroborated in all material particulars by the police witnesses; the medical evidence of Dr. Anil Shandilya (PW-9) and the scientific evidence in the nature, FSL reports Ex.PW-17/A and Ex.PW-17/B. Dr. Anil Shandilya (PW-9) has categorically opined that the injuries suffered by the deceased were sufficient in normal course to cause death. The above discussion shows that prosecution has established beyond any manner of doubt that the appellant had inflicted fatal twenty penetrating incised wounds by a churi, a dangerous weapon, on the deceased Santra Devi, who was his wife. The appellant has not been able to assail the findings returned by the trial Court on any legally tenable grounds.

37. In view thereof, we find no merit in this appeal. The appeal is dismissed.

The Secretary Delhi High Court Legal Services Committee shall ensure that the Amicus Curiae appointed by the Court on

behalf of the appellants/respondents are paid their fees in accordance with Rules.

A copy of this judgment be made available to the appellant through Superintendent, Central Jail, Tihar, Delhi.

GITA MITTAL, J

ANU MALHOTRA, J DECEMBER 15, 2016/sv