State vs Manoj
2016 Latest Caselaw 813 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                     Date of decision: February 03, 2016

+                        CRL.A. 483/2000
       STATE                                            ..... Appellant
                         Represented by:     Mr.Varun Goswami, APP for
                                             the State.

                         versus

       MANOJ                                           ..... Respondent
                         Represented by:     Mr.Anupam Sharma, Advocate.

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)

1. Vide impugned judgment dated February 27, 1996 Manoj Kumar was acquitted of the charge for the murder of Sukhbir punishable under Section 302 IPC. Leave to appeal petition filed before this Court was declined on September 18, 1996. On Special Leave Petitions filed by Smt.Trikha Devi, maker of the FIR and mother of the deceased Sukhbir and the State, the Supreme Court vide its order dated April 13, 2000 granted leave to appeal and directed the High Court to hear the appeal on merits.

2. Police machinery sprung into action on receipt of DD No.28A on June 27, 1992 recorded at 7.30 PM informing that at Gali No.4, Punjabi Basti, Pankha Road, Anand Parbat a quarrel has taken place. The police reached the spot and Dhappo and Sanjay daughter and son of Kallo were brought to the police station. At 8.15 PM another call was received that a boy has received knife injury. When the police reached the spot, the injured Sukhbir

son of Onkar Singh had been taken to JPN Hospital where he was declared brought dead.

3. Statement of Smt.Trikha Devi, mother of Sukhbir was recorded who stated that she was residing at House No.654/2C, Gali No.4, Punjabi Basti, Anand Parbat. In front of her house a lady namely Kallo sold fruits and on the other side of the house Kallo‟s daughter Dhappo sold toffees for children. Both of them used to sell these articles outside the house. At around 7.00 PM her son Sukhbir Singh went to Kallo to purchase grapes for 50 paise however, there was an argument on the money which resulted in a scuffle between the two parties. Her daughter Leela and Smt.Rani wife of her son Harbir intervened in the matter with Sukhbir whereas Sanjay, Dhappo and Kallo grappled from the other side. In the process, all of them received injuries. The police came and took away Dhappo and Sanjay. Her son Sukhbir went away from the house. After about 45 minutes her son Sukhbir came and went to Kallo to apologise when again arguments started between the two. Manoj son of Tej Ram intervened and gave a knife blow on the chest of his son Sukhbir and ran away from the spot along with the knife. Manoj is the grandson of Kallo and stays in the same gali. After receiving the stab injury her son laid down on the cot outside the house and when she raised hue and cry, Dharam Pal took him to the hospital in a three- wheeler. She followed them to the hospital and on reaching she was informed that her son was dead. She stated that besides her, the incident of stabbing was witnessed by Hukum Chand son of Kale Ram and Gulzari Lal son of Hira Lal.

4. On the statement of Smt.Trikha Devi FIR No.147/1992 under Section 302 IPC was registered at PS Anand Parbat and investigation was carried

out.

5. Post-mortem of Sukhbir was conducted by Dr.Basant Lal, PW-12 who found the following injuries:

"External Injuries:

1. Superficial incised wound 1 x 0.1 x 0.1 cm situated on the front, middle, lower, left palm, 2.5 cms. above the proximal crease of middle finger, transversely placed. Clotted blood was found present in the palm-defence wound.

2. Incised stab wound 2.6 cm x 1.4 cm. x chest cavity deep, vertically placed/with both the margins clear placed over the front and left side of chest, 3 cm. from mid-line, 14 cms. below the medial end of clavical and 129 cm. from the left heel. Both the margins clear and lower inner angle was acute than upper outer. Blood was found oozing on the body movements or pressure on chest. This was situated at the fifth and sixth costocondral level."

6. Dr.Basant Lal, PW-12 opined the cause of death due to haemorrhage and shock consequent upon incised stab wound of heart, liver and stomach via injury No.2. All the injuries were ante-mortem and recent in duration and caused by single edged sharp cutting and stabbing weapon. Injury No.2 was sufficient to cause death in ordinary course of nature.

7. Manoj was arrested on June 30, 1992 at about 4.00 PM from near the Liberty Cinema and on interrogation he disclosed where he had concealed the knife. Pursuant to the disclosure statement recorded he got recovered the knife and his blood stained clothes. Though the knife was not sent to Dr.Basant Lal, PW-12 for opinion, the said opinion was sought to be obtained while he was examined in the Court to which Dr.Basant Lal PW-12 stated that he could not give the opinion in Court like this and in case this

weapon is sent to his department he could render the opinion. As per the CFSL report blood could not be detected on the clothes of Manoj however, the same was detected on the knife and was found to be of „B‟ Group, that of the deceased.

8. Hukum Chand and Gulzari Lal, the two witnesses, who, as per Smt.Trikha Devi, had witnessed the incident were examined as PW-2 and PW-3 respectively however, they did not support the prosecution case to the extent that they witnessed the incident. They stated that on reaching they found Sukhbir on the cot and Dharam Pal took him to the hospital. Leela, daughter of Smt.Trikha Devi who was also cited as a witness though supported the incident prior to stabbing which took place at about 7.00 PM when Sukhbir went to fetch grapes from Kallo however, with regard to stabbing incident she stated that she went to the house, started viewing the television and had not seen Manoj stabbing Sukhbir.

9. For the reason, the three alleged eye witnesses turned hostile, the learned Additional Sessions Judge came to the conclusion that only Smt.Trikha Devi supported the prosecution case who was an interested witness. Learned ASJ acquitted Manoj for the reasons that admittedly when the first incident occurred at 6.45/7.00 PM, the quarrel took place between Sukhbir and Smt.Kallo for the price of the grapes, when Manoj was not present. Even when the second incident took place though Manoj allegedly stabbed Sukhbir, he had not given any exhortation and there was no provocation for him to have participated in the occurrence. The Court also disbelieved the version of Ghansham PW-8 who stated that when Manoj was arrested roaming near Liberty Cinema his clothes were blood stained. Further in the disclosure statement Manoj disclosed about a knife without

the handle however, as per CFSL report Ex.P4, the knife was metallic with rusty blade and handle. Thus the learned ASJ held the knife to be planted. Further as per the CFSL report, the three clothes of Manoj were not blood stained. Moreover no independent witness was joined at the time of recovery thus granting benefit of doubt, Manoj Kumar was acquitted.

10. Supreme Court in the decision reported as (2007) 4 SCC 415 Chandrappa & Ors. Vs. State of Karnataka laid down the principles in relation to the scope of interference by the High Court in a judgment of acquittal by the learned Trial Court as under:-

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the

accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

11. As noted above, the clothes of Manoj were not blood stained and hence not connected with the crime. Further no opinion was sought from the doctor whether the injuries on the deceased were possible by the knife and the only evidence to connect the knife to the deceased was that the knife was found to be stained with human blood of Group-B which was that of the deceased. As per the disclosure statement, the knife was without handle. The said controversy gets clarified by examining the sketch of the knife which shows that though the knife has blade of 22.2 cms it has a handle of 11.7 cm however, the handle is not covered by the wood. The word used in the disclosure statement is ("Bina Hathi Ka"). The knife recovered has a handle but not the cover of the handle. Thus, the finding of the learned ASJ that the knife was planted is clearly an erroneously finding.

12. The main issue required to be considered is whether on the sole testimony of Trikha Devi, can conviction of Manoj be based? It is well settled that it is not the quantity of the evidence but quality of evidence. Conviction can safely be based on the testimony of one reliable eyewitness. In the decision reported as 2007 (14) SCC 150 Namdeo vs. State of Maharashtra it was held:

28. From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the Legislature (Section 134, Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eye witness, therefore, has no force and must be negatived.

29. It was then contended that the only eye witness PW6- Sopan was none other than the son of the deceased. He was, therefore, 'highly interested' witness and his deposition should, therefore, be discarded as it has not been corroborated in material particulars by other witnesses. We are unable to uphold the contention. In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterised as "interested". The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive.

30. Before more than half a century in Dalip Singh v. State of Punjab [1954]1 SCR 145, a similar question came up for consideration before this Court. In that case, the High Court observed that testimony of two eye witnesses required corroboration since they were closely related to the deceased. Commenting on the approach of the High Court, this Court held that it was 'unable to concur' with the said view. Referring to an earlier decision in Rameshwar Kalyan Singh v. State of Rajasthan 1952 CriL J 547, their Lordships observed that it was a fallacy common to many criminal cases and in spite of endeavours to dispel, "it unfortunately

still persists, if not in the judgments of the courts, at any rate in the arguments of counsel".

31. Speaking for the Court, Vivian Bose, J. stated:

"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that here is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.

(emphasis supplied) The Court, no doubt, uttered a word of caution: However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

(emphasis supplied)

13. It would be thus necessary to note the testimony of Trikha Devi and we reproduce her statement made on oath before the Court:

"One Kallo used to sell fruits near my house in the gali. Her daughter‟s name is Dhapo and she also puts up in front of my house. Dhappo used to sell toffees. Sukhbir Singh

was my son. About 20 months before at about 7 P.M. my son went to fetch grapes from Kallo. A quarrel arose between my son and Kallo regarding the purchase of grapes and settlement of its price. On this count my son, Kallo, Dhapo and Sanjay grappled among themselves. My daughter Leela and my daughter in law Rani came and intervened and in this intervention they also suffered injuries and Kallo and Dhapo and Sanjay also sustained injuries in this transaction. After the two were separated my daughter and my daughter in law came to our house and in the meanwhile the police came and my son out of the fear of police ran away. And the police took Sanjay and Dhapo. My son came at 7.45 P.M. and he begged for pardon from Kallo. There was an electric light in the gali. During this Manoj came out of his house armed with a knife. Accused Manoj is present today in the Court. As soon as Manoj appeared on the scene he thrust the knife into the chest of my son, and taking that knife out ran away, with that knife. Gulzari was coming from towards the staircase and Hukam Chand was coming from the side of Lajja‟s house. I raised alarm only. I helping my son made him lie on the cot. My son became unconscious after receiving the stab injury. Dharam Pal and one boy more took my son putting him in a T.S.R to J.P.L.N. Hospital. I also followed them in another TSR. As soon as I reached the hospital the doctor declared my son „brought dead‟. This incident was witnessed by Gulzari Lal, myself. I can‟t say whether Leela saw it with her own eyes or not because she was lying on a cot. After some time the police came in the hospital and enquired who brought my son in the hospital. The police was told by Dharma Pal that he brought him. My statement was recorded by the police in the hospital which is thumb marked by me at point A and the same is Ex.PW4/A. I identified the dead body of my son on 28.06.92. My statement was recorded by the police to this effect which is Ex.PW4/B which was also thumb marked by me at point B. After recording my statement I was sent by the police at my home. I pointed out the place of occurrence to the police.

C.Q. Please tell what clothes were worn by your son at the time of incident?

A. He was wearing pant and shirt and a shawl.

At this stage one parcel sealed with the seal of CFSL is opened and pant, shirt and shawl are taken out which have been identified by PW4 to be the same which her son was wearing at the time of incident. Pant is Ex.P1, shirt Ex.P2 and shawl is Ex.P3. Shawl Ex.P3 I put on my son when he was made to lie on the cot, after he was stabbed."

14. In the cross-examination, nothing has been brought out to show that there was any improvement in the testimony of Smt.Trikha Devi from the statement she made immediately after the incident on the basis of which FIR was registered. In cross-examination she admitted that her son ran away from the house due to fear of police, lest he would be arrested. A perusal of the cross-examination would show that nothing material has been put to her and questions have been asked with regard to the elder son of Smt.Trikha Devi, his having committed suicide and Sukhbir having strained relations with his wife which have no relevance to the incident. In the present case the incident took place just outside the house of the deceased Sukhbir and being summer it was not unnatural for Smt. Trikha Devi to be sitting on the cot outside and having witnessed the incident.

15. In the decision reported as 1981 (3) SCC 675 Hari Obula Reddy & Ors.vs.The State of Andhra Pradesh it was held:

"13. ......Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is

that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony. We may again emphasise that these are only broad guidelines which may often be useful in assessing interested testimony, and are not iron-cased rules uniformly applicable in all situations.

16. The findings of the learned Additional Sessions Judge that the mother was an interested witness and on her testimony the conviction could not be based and the knife was planted, as noted above, are perverse findings which

are required to be set aside. From the testimony of Trikha Devi which inspires confidence coupled with the recovery of knife at the instance of Manoj which was stained of human blood of Group-B that of the deceased it can be safely held that Manoj stabbed Sukhbir.

17. It is now to be considered whether the circumstances in which Manoj committed the offence would fall under Section 302 IPC or 304 IPC. Admittedly it was not a pre-meditated attack by Manoj. Just half hour prior to the incident of stabbing, an altercation and scuffle took place between the two parties wherein Sukhbir, his sister and sister-in-law were on the one side and Kallo, Dhappo and Sanjay on the other side. Both parties received injuries. The police came and took away Dhappo and Sanjay. After the incident Sukhbir again went to Kallo of his own volition though ostensibly to apologise however, as stated by Trikha Devi an altercation ensued, Manoj being the maternal grandson of Kallo got alarmed and intervened to save the grandmother who had earlier also received injuries as admitted by Trikha Devi herself. The knife used was ordinary knife available with the fruit vendors. Hence the offence committed by Manoj would fall under Section 304 Part-II IPC and not under Section 302 IPC.

18. In the decision reported as AIR 1983 SC 284 Jawahar Lal & Anr.vs.State of Punjab in a similar situation the Supreme Court held:

"20. What then is the offence committed by the 1st appellant? Looking to the age of the 1st appellant at the time of the occurrence, the nature of the weapon used, the circumstances in which one blow was inflicted, the time of the day when the occurrence took place and the totality of other circumstances, namely, the previous trivial disputes between the parties, we are of the opinion that the 1st appellant could be attributed the knowledge that he was

likely to cause an injury which was likely to cause death. Accordingly, the 1st appellant is shown to have committed an offence under Section 304, Part II of the Indian Penal Code and he must be convicted for the same and sentenced to suffer rigorous imprisonment for five years maintaining the sentence of fine."

19. The impugned judgment dated February 27, 1996 acquitting Manoj is set aside. Manoj is convicted for the offence punishable under Section 304 Part II IPC.

20. The alleged incident is dated June 27, 1992. Manoj had undergone custody of nearly four years during the pendency of the trial whereafter he was acquitted. Thus he is released on the period already undergone.

21. Appeal is disposed of. Bail bond and surely bond of Manoj are discharged.

22. Copy of the judgment be sent to the Superintendent, Tihar Jail for updation of the record.

23. TCR be returned.

(MUKTA GUPTA) JUDGE

(PRADEEP NANDRAJOG) JUDGE FEBRUARY 03, 2016 'vn'