Delhi High Court
Naresh Kumar @ Raju & Ors. vs State Of Delhi on 3 January, 2017
$~
*IN THE HIGH COURT OF DELHI AT NEW DELH
% Reserved on: 1st December, 2016
Date of decision: 3rd January, 2017
+ CRL.A. No. 523/2000
NARESH KUMAR @ RAJU & ORS. ..... Appellant
Through: Mr.Vinod Pant with
Mr.Deepak Kumar Raut, Advs.
versus
STATE OF DELHI ..... Respondent
Through: Ms. Aashaa Tiwari, APP for
the State
+ CRL.A. No. 535/2000
MUKESH KUMAR ..... Appellant
Through: Mr.Vinod Pant with
Mr.Deepak Kumar Raut, Advs.
versus
STATE OF DELHI ..... Respondent
Through: Ms. Aashaa Tiwari, APP for
the State
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
GITA MITTAL, J.
1. These two appeals assail the judgment dated 7th August,
2000 finding the appellants guilty of commission of the offence
under Section 302 read with Section 34 of the IPC in Sessions Case
No. 246/1996, arising out of FIR No.603/1995 which was
registered by the police station Nand Nagri, after a joint trial by the
common judgment. Pursuant to their conviction by a separate
order of 7th August, 2000 itself, the appellants were sentenced to
imprisonment for life each and fine of `5,000/- each, in default of
payment of fine, it was directed that they shall undergo simple
imprisonment for one month each.
2. Inasmuch as the appellants Naresh Kumar @ Raju,
Purshottam Kumar @ Kaku and Mukesh Kumar have filed
Crl.A.Nos.523/2000 & 535/2000 assailing this common judgment
and order on sentence, we have taken them together for
consideration and adjudication.
3. The record of the case shows that one Kashmiri Lal, 16 year
old resident of D-3/356, Nand Nagri, Delhi was admitted to the
Tandon Nursing Home, D-229, Vivek Vihar, Delhi by his brother
Billu (PW4) and a cousin brother Vinod Kumar (PW7) who had
"presented C (with) H/o (History of) fall in park while running and
sustaining injury". He was examined by Dr. S.N. Sharma, the
Resident Medical Officer (PW16) who recorded the following
history sheet of the patient (Exh.PW16/A) and made the following
observation with regard to his condition:
"O/E
P. Fully conscious
Pulse - 100/ms
BP - 110/70 mmh
Temp - N
R/R - 18/mt.
Local Er :- Penetrating injury in Rt Lower Chest
(4x1 cm)
Bleeding ++
Superficial injury Rt arm and neck
Abrasions over B/L Knee's present
Systemic Ex :-
PiA - Tenderness over Rt upper Abdomen
Chest - B/L Air Ending equal
CVS - NHD
CNS - Fully ............."
Thus, at the time of his admission to the hospital and
examination by the doctor, the patient Kashmiri Lal was fully
conscious. It is also in the testimony of Dr. S.N. Sharma (PW16)
that the above noted history as noted in Exh.PW16/A was given by
the patient himself.
4. It appears that at about 2.40 a.m. on 3rd December, 1995, Dr.
S.N. Sharma (PW16) also telephonically informed the police
station Vivek Vihar about the admission of injured Kashmiri Lal
who got himself admitted in the Tandon Nursing Home which
information was logged as DD-24A by HC Vijay Kumar.
Information of this report was given to SI Pyar Singh via the
wireless.
5. Pursuant to the receipt of the information, it appears that SI
Pyar Singh proceeded to the Tandon Nursing Home and made
enquiries. Upon return to the police station at about 7.15 a.m., he
got his observations and enquiries logged as DD no.2A by HC
Vijay Kumar (PW2) (Exh.PW2/B). SI Pyar Singh has reported
therein that at the Tandon Nursing Home, the mother of Kashmiri
Lal who had informed that Kashmiri Lal had fallen to the ground in
the park near their house and got injured with some glass lying
there. He had reported that the mother of the injured had stated
that no one was to be blamed for this injury.
6. Mr. Vinod Pant, learned counsel appearing for the appellants
has drawn our attention to a handwritten letter (Ex.PW16/B) in
vernacular by Billu (PW4), brother of Kashmiri Lal. This letter is
duly witnessed by their cousin Vinod Kumar (PW7). The letter
Exh.PW16/B has been translated in the following terms :
"Our patient has received hurt by a pointed thing
through his own mistake. His condition is precarious.
We want his treatment here of our own free will and we
do not want any police action. The Doctors have
explained about the condition of the injured to us very
well. If need arises, the patient may have to undergo
major operation. We are fully ready for that."
7. In the form (Exh.PW10/B), the family of Kashmiri Lal has
clearly stated that they do not want any police action.
8. It is in the evidence of Dr.S.N.Sharma (PW-16) that
Kashmiri Lal was given first aid at 2.20 a.m. For the purposes of
the surgery, Dr. Tilak Gupta (Surgeon) was informed at 2 a.m. The
notes of the surgeon have been proved on record as Exh.PW16/D.
These notes manifest that even at the time of examination by the
surgeon, the vital parameters of Kashmiri Lal were normal. The
surgeon has noted that the patient was conscious. It has been
opined in the notes that the abdomen had to be examined for which
purpose, surgery had to be performed and an anaesthesiologist was
required to be informed for surgery. Dr. Anil Kapur (PW-9), the
Anaesthesiologist was also called as an operation was required to
be performed on the patient.
9. The surgical procedure was explained to the family members
of the Kashmiri Lal. The Nursing Home had required the consent
of the patient's family for the purposes of administering anaesthetic
performance of the surgical procedure. The consent obtained for a
laprotomy was obtained in writing under signatures of the patient's
cousin Vinod Kumar. The signatures of Vinod Kumar were duly
witnessed by Billu (PW-4) and Sant Ram (PW-6) which is
Exh.PW16/C as well as signatures of Billu (PW-4) were obtained.
10. We find that the prosecution has examined the
anaesthesiologist Dr. Anil Kapur as PW-9 as well who has proved
his notes as Exh.PW9/A. Dr. Kapur has recorded that upon
examination of the patient, he had found him to be conscious
without any respiratory distress. There was no cyanosis. His
general condition was low with a severe pallor, pulse of 96 per
minute which was regular and blood PP 100/60 of Hg. The
anaesthesiologist noted the injury on his right upper abdomen.
Even post operation, the patient was found fully conscious and
talking and the anaesthesiologist (PW-9) had even advised that he
be shifted to the regular ward.
11. Kashmiri Lal was next examined by Dr. Sudha Bhardwaj
(PW13), a resident medical officer at the Tandon Nursing Home
who attended to him at about 8.30 a.m. on 3rd December, 1995 and
found him to be conscious with his vitals being normal. According
to Dr. Bhardwaj, the patient complained regarding pain on the side
where he was operated whereupon she discussed his condition with
Dr. Tilak Gupta, the surgeon who advised her to continue the
medication. The patient thereafter became restless and was
sinking. He was given emergency treatment including intubation
and cardiac massage. However, at 9.30 a.m. of the 3rd of December
1995, the patient expired. PW13 proved her medical notes as
Exh.PW13/A.
Post mortem
12. After the death of Kashmiri Lal, Inspector Rajbir Sharma
(PW22) had prepared the brief facts of the case (Exh.PW22/A) and
also made an application for conducting the post-mortem
examination on the dead body (Exh.PW22/C).
13. A post-mortem was conducted on the body of Kashmiri Lal
by Dr. S.K. Verma on 4th December, 1995 (Exh.PW15/A) at 2.10
p.m. vide post mortem report bearing no.803/1995 (Ex.PW15/A).
The doctor had found the following ante-mortem injuries on the
body of the deceased:
"1. A reddish Brown Abrasion of size 2x0.4 cm placed
in the supra clavicular region on right side neck 0.5 cm
above the superior border of right clavic and 9 cm right
of mid-line.
2. A reddish brown abrasion of size 1.5x0.4 cm
placed 1.2 cm to the right of injury no.1 just over the
clavicle.
3. A reddish brown abrasion in an area of 6x2.5 cm
on the posterior surface of right upper arm 15 cm.
Above the dip of the elbow and 18 cm below the
acromion process.
4. A reddish brown abrasion of size 1.3x7 cm placed
0.8 cm above the superior border of right patella in the
right upper leg region over front medial surface.
5. A reddish brown abrasion oval in shape of size
1x0.6 cm placed on the front of the knee 3.7 cm to the
right of medial border of patella.
6. A reddish brown abrasion of size 8x1 cm placed
over the right leg shin 5.5 cm below the lower border of
right patella.
7. A reddish brown abrasion of size 4.5x1.8 cm
placed in the front of left thigh 39.5 cm below the out
superior liac spine.
8. A reddish brown abrasion of size 3x3.3 cm placed
on the left upper leg 1 cm below the lower border of left
patella.
9. A reddish brown oval abrasion of size 1.5x1.0 cm
placed on the medial side of left leg 4 cm below the
lower border of left patella.
10. A midline surgical wound 16 cm long having 10
interrupted silk sutures.
11. Incised wound 10 cm long stitched with 6
interrupted silk sutures present in the right
hypochondium and right lower chest starting 2.5 cm
below the coastal margin. The wound was directed
medially downwards and backwards in the abdominal
cavity, cutting the 9th inter-coastal pace (6.5x0.5 cm)
entering into the liver through the superior surface and
coming out through inferior surface (5x0.5 cm) of right
lobe. The wound at the superior surface was stitched
with momentum. Haematoma of size 10x8x1 cm was
found between the surface of liver and diaphragm. The
total depth of the wound was approximately 9 cm. The
wound over liver shows one angle more acute than the
other.
12. Surgical drain wound in right iliac fossa.
The abdominal cavity contains about 1500 Ml. Of
clotted and fluid blood. All other internal organs were
pale. Time since death is about 30 hours and the cause
of death was shock due to haemorrhage due to injury
no.11 likely to produce by sharp edged weapon and is
sufficient to cause death in ordinary course of nature."
14. So far as the cause of death is concerned, the doctor had
opined that shock due to haemorrhage due to injury no.11 likely to
have been produced by a sharp edged weapon was sufficient to
cause death in the ordinary course of nature. The doctor had also
opined that the time since death was about 30 hours.
15. A blood sample of the deceased Kashmiri Lal in gauze as
well as the clothes which he was wearing were preserved and
handed over to the police.
16. The dead body was identified by Mukesh and Billu, brothers
of the deceased vide Ex.PW22/D and Ex.PW22/E respectively.
After the post mortem was conducted, Inspector Rajbir Sharma
(PW22) handed over the dead body of Kashmiri Lal to Billu vide
memo Exh.PW22/G who brought it home.
17. At about 10.35 a.m., information was received by the
wireless operator at police station Nand Nagri from L.Ct. Vandana
that there was a quarrel at the premises C-1/6, Nand Nagri and that
the police should be sent there. This information was logged as
DD 9B (Exh.PW11/B) on 3rd Decemmber, 1995 at the police
station. Copy of DD 9B (Exh.PW11/B) was handed over to
Additional SHO Inspector Rajbir Sharma (PW22) who proceeded
to the residence of the deceased at D-3/356 and found the dead
body of Kashmiri Lal on the ground.
18. At this stage, he recorded the statement of Billu Kumar
@Billu (PW4) (Exh.PW4/A) who stated that in the night
intervening 2/3rd December, 1995, the deceased Kashmiri Lal and
he had gone to attend a wedding in the neighbourhood; that after
having their dinner, both of them with some other boys were
singing and dancing. After some time, Billu (PW-4) asked for
change of the cassette. At this, Raju and his brother Kaku who
were residents of B-3/337, Nand Nagri started abusing PW4. At
this, PW4 gave a fist blow at Raju's face but they did not allow
him to change the cassette. Some guests at the wedding intervened
("beech bachao karaya") and both the parties returned to their
respective homes. PW4 has further stated in Exh.PW4/A that after
that, his brother started warming his hands at the "tandoor" near
the wedding while he, along with a neighbour Sant Ram, were
sitting on a cot in front of their house and conversing. About half
an hour so passed when, at about 11.30 p.m., Raju, Kaku and
Mukesh, who were known to Billu from before, came there and
started saying that now they would teach him a lesson for inflicting
the fist blow. Raju was holding a sword ("talwar"), Kaku was
holding an iron rod ("lohe ki chad") and Mukesh was holding a
stick ("danda"). Mukesh and Kaku held Kashmiri by both his
hands while Raju stabbed his brother with the sword which was in
his hand. When Sant Ram and he moved towards his brother to
save him, those persons ran away from the spot. At that time,
Vinod Kumar (Billu's mausi's maternal aunt's son), heard the
noise and reached there. With the help of Sant Ram and his cousin
Vinod Kumar, Billu rushed Kashmiri Lal to the Tandon Nursing
Home, Vivek Vihar in Titu's (another son of his mausi - maternal
aunt's) car and got him admitted there where he had been operated
upon and expired.
19. Inspector Rajbir Sharma, Additional SHO, Police Station
Nand Nagri, made an endorsement (Ex.PW3/A) on the statement
(Ex.PW4A) and handed it over to Constable Pawan Kumar for
registration of the First Information Report.
20. This statement formed the basis of FIR No.603/95 which
was registered by Head Constable Ravinder Kumar (PW-3)
between 12.45 p.m. (DD8A) and 1.20 p.m. (DD9A) at the police
station Vivek Vihar, a carbon copy whereof was proved on record
as Exh.PW3/B. Ct. Pawan Kumar brought a copy of the FIR to the
spot and handed it over to Inspector Rajbir Sharma (PW22) on 3 rd
December, 1995 itself along with the rukka. Inspector Rajbir
Sharma (PW-22) has proved at that time that one Billu (PW-4)
produced one bloodstained white shirt with blue colour stripes
which the deceased was wearing at the time of the incident which
was seized vide Exh.PW4/B and sealed with the seal of RS.
Investigations
21. On 7th December, 1995, Purshottam Kumar @ Kaku was
arrested and his personal search was conducted vide memo
Exh.PW4/D and Naresh @ Raju was arrested outside the house of
his maternal uncle and his personal search was conducted vide
memo Exh.PW4/E.
22. The prosecution relies on their pointing out of the place of
occurrence in front of D-3/344, Main Road, Nand Nagri, Delhi and
the pointing out memos in this regard were proved on record as
Exh.PW4/C and Exh.PW4/F.
23. The prosecution has also placed reliance on a disclosure
statement of Naresh @ Raju who pursuant thereto, got recovered a
sword ('talwar') from his house B-3/337, Nand Nagri vide memo
Exh.PW4/G. The sword was found to have a length measuring 70
cms. So far as the other dimensions of the sword was concerned, it
had a blade of 60 cms. and an iron handle of 10 cms. The sword
had a wooden covering and was seized vide memo Exh.PW4/H.
The sword was deposited in the malkhana. The seizures were
witnessed by ASI Gopal Singh and Ct. Praveen from police station
Nand Nagri as well as Billu Kumar (PW4). The sword was
brought on the court record as Exhibit P4.
24. On 7th December, 1995, Mukesh surrendered before the
concerned court. He was arrested in the case vide Exh.PW18/A
and was taken on police remand of one day.
25. On 3rd December, 1995, Inspector Rajbir Sharma had got the
scene of the occurrence photographed vide photos Exh.P-1 to P-4.
At the instance of Billu Kumar, a rough site plan (Exh.PW22/H)
was prepared by Inspector Rajbir Sharma, Additional SHO
(PW22).
26. Subsequently, on 31st January, 1996 Inspector Rajbir Sharma
took SI Mukesh Kumar to the place of occurrence to prepare a
scaled site plan after taking rough notes and measurements at the
instance of PW-22. However, in the scaled site plan (Exh.PW20/A)
the two small parks shown in Ex.PW22/H are not shown creating
doubt on its correctness.
27. The investigating officer recorded the statements of
witnesses and also collected the report of the post-mortem as well
as the treatment papers from the Tandon Nursing Home.
28. So far as the seized articles are concerned, the same were
sent to the Forensic Science Laboratory, Chandigarh by Inspector
Rajbir Sharma (PW22). The report of the Forensic Science
Laboratory dated 29th August, 1996 (Exhibit PX) notes that four
sealed parcels alongwith the sample seal were sent through Ct. Hari
Singh and received by the Laboratory on 14th February, 1996. The
Laboratory marked the articles as follows:
"Exhibits Description
1. A sword with black iron blade.
2. A full sleeved shirt with black longitudinal
bands on white.
3a A grey full sleeved shirt.
3b. A deep purple pant with faded red lines on it.
4 A stained gauze."
29. After a scientific examination of the exhibits, as per Exh.PX,
it was opined as follows:
"Report
i. Blood was detected exhibit 2,3a,3b and 4.
ii. Its human origin was confirmed on 2, 3a
and 4.
iii. Exhibits 2 and 4 gave positive grouping
tests for group 'AB'. No blood group could
be found on exhibit 3a.
iv. Blood was not detected on exhibit 1."
30. Therefore, the bloodstained gauze i.e. the sample of
deceased Kashmiri Lal showed that his blood belonged to the
Group AB. Human blood was confirmed on Exh.P2 which was the
full sleeved shirt with black longitudinal bands on white. Human
blood was identified additionally on the Ex.3a being the grey full
sleeved shirt. The scientific tests reported that there was no blood
on Exh.1 which was the sword with the iron blade.
Proceedings before the court
31. After completion of investigation, the challan was filed
before the court of the learned Metropolitan Magistrate on or about
the 4th March, 1996. By an order dated 16th April, 1996, the
proceedings were committed for trial to the Sessions Court.
32. After consideration of the material on record, the learned
Additional Sessions Judge, Shahdara, Delhi had found a prima
facie case under Section 302/34 of the IPC made out against the
appellants. Consequently, by an order dated 1st November, 1996,
the trial court framed the charge against the appellants for
commission of offences punishable under Section 302/34 of the
IPC. The appellants pleaded not guilty and claimed trial.
33. During trial, the prosecution examined 22 witnesses in
support of the charge. The trial court examined the appellants
under Section 313 of the CrPC and gave them an opportunity to
explain the evidence against them. The appellants examined one
witness HC Naresh Kumar (DW1) in defence. It appears that this
witness was unable to produce the summoned record relating to
DD Register B for the period 2nd December, 1995 and 3rd
December, 1995 by police station Nand Nagri for the reason that
this record stood destroyed pursuant to the order no. 964-
1013/HAR/NE dated 26th March, 1998.
34. The ld. Trial Judge considered the matter at length and by
the impugned judgment dated 7th August, 2000 found the
appellants guilty of the offences with which they were charged and
thereafter by the impugned order dated 7th August, 2000 sentenced
the appellants as noted above.
Discussion
35. We have heard Mr. Vinod Pant, learned counsel for the
appellants and Ms. Aashaa Tiwari, learned APP for the State at
great length and carefully scrutinised the record of the trial court.
36. The above narration would show that there can be no dispute
that Kashmiri Lal suffered injuries in the very late hours of 2nd
December, 1995 and was admitted to the Tandon Nursing Home,
Vivek Vihar, Delhi. He was admitted to the hospital and a MLC
prepared vide Exh.PW13/A and was treated by Dr. S.N. Sharma
(PW16). Thereafter, he underwent surgery which was performed
by Dr. Tilak Gupta, Surgeon (Exh.PW16/D and Exh.PW16/E).
Anaesthesia was administered by Dr. Anil Kapur (Exh.PW9.A).
Kashmiri Lal was recovering when his condition suddenly
worsened in the morning at about 9.30 a.m. (Exh.PW13/A) and he
unfortunately expired in the presence of Dr. Sudha Bhardwaj
(PW13).
37. The prosecution has primarily relied upon the testimony of
Billu (PW-4), brother of Kashmiri Lal as an eye-witness account of
the incident in which the deceased suffered the injuries. During
trial, Billu (PW4) gave a testimony on the same lines as his
statement to the police on which basis FIR No.603/95 was
registered. What has to be seen is whether this is a truthful account
and sufficient to hold the appellants guilty of murder of Kashmiri
Lal or are there serious infirmities in the evidence, sufficient to
doubt this version?
38. We have extracted above the record of the Tandon Nursing
Home as well as the police documentation till such time Kashmiri
Lal expired. Dr. S.N. Sharma, Kashmiri Lal's treating doctor at the
Tandon Nursing Home has proved the history sheet Exh.PW16/A
of Kashmiri Lal which was recorded at the time of his admission at
1.50 a.m. when the patient was conscious. As per Dr.S.N. Sharma
(PW16), the history extracted above to the effect that Kashmiri Lal
had suffered a fall in the park while running and sustained injuries
was actually given by the patient himself.
39. We find that Dr. S.N. Sharma (PW16) who had examined
Kashmiri Lal and also reported the admission of the injured in the
hospital to the police, has testified that when the police arrived and
made enquiries, the patient Kashmiri Lal was conscious. He has
also specifically testified that the police had made enquiries from
the deceased. This fact is also confirmed by Vinod Kumar (PW7),
cousin of Kashmiri Lal who has submitted that the police had made
enquiries from the injured Kashmiri Lal.
40. We have noted above that Kashmiri Lal was conscious at all
material times. It is also in the prosecution evidence and noted on
the Treatment Sheet (Ex.PW16/A) that Dr. S.N. Sharma from the
Tandon Nursing Home had himself informed Mr. Sunil Kumar,
Duty Officer at the police station Vivek Vihar at 2.40 a.m. by a
telephone call about the admission of Kashmiri Lal. A noting to
this effect stand made on Ex.PW16/A itself. This information has
been logged as DD 24A (Exh.PW2/A) which also records that it
was the doctor who had informed the police that the patient had got
himself admitted.
41. Receipt of this information was handed over to SI Pyar
Singh for appropriate action. As a result, SI Pyar Singh had
proceeded to the spot and upon his return to the police station from
the Tandon Nursing Home at 7.15 a.m. documented the same as
DD No.2A wherein he has categorically recorded the information
disclosed to him by Kashmiri Lal's mother to the effect that
Kashmiri Lal had fallen on the floor and was injured.
42. The prosecution has also proved in evidence the letter dated
3rd February, 2015 (Exh.PW16/B) as well as the consent for
laprotomy (Exh.PW16/C) given by Billu (PW-4) endorsed by
Kashmiri Lal's relatives wherein also it is stated that Kashmiri Lal
got injured by his own fault and that he was getting himself treated
with his own consent at the hospital.
43. In the rukka Exh.PW4/A as well as in the witness box, Billu
has thus set up a version completely contrary to that contained in
Exh.PW16/A, 16/B and 16/C. So what is the witness' explanation
and is it reliable? In the witness box, Billu (PW4) has attempted to
explain that the version recorded in Exh.PW16/A, B and C was at
the instance of the doctors so that they may treat Kashmiri Lal and
that it was on their suggestion that he had told the doctors that
Kashmiri Lal was playing in the park and fell over broken glass
which pierced his abdomen. However, this explanation is not
supported by the record.
44. In Exh.PW16/B, it has been stated by Billu that they did not
want any police action. However, we find that despite this
expressed desire of the patient Kashmiri Lal's relatives, Dr.S.N.
Sharma (PW16) has, shortly after the patient's admission, informed
the police at 2.40 a.m. on 3rd December, 1995 itself. Clearly, if the
Nursing Home and the doctors had not wanted police intervention
and had actually told the patient's relatives to change their version
of the circumstances in which the deceased suffered the injuries,
they would not have informed the police of Kashmiri Lal's
admission.
45. Dr.S.N Sharma (PW16) has clearly stated that the history
written by him on Exh.PW16/A was disclosed by Kashmiri Lal
who was fully conscious.
46. Pursuant to the intimation by the police logged as DD
No.24A (Exh.PW2/A), S.I. Pyar Singh visited the hospital and
himself met the patient Kashmiri Lal. His mother also had told SI
Pyar Singh that no one was at fault for the injury suffered by
Kashmiri Lal which fact was recorded by him in DD No.2A upon
his return to the police station.
47. The explanation tendered by Billu (PW4) and Vinod Kumar
(PW7) for the version given in the rukka and in the witness box is
not supported either by the testimony of the doctors at the Tandon
Nursing Home nor by the record relating to Kashmiri Lal and
cannot be relied upon to base a conviction.
48. Even in the changed version given in court, Vinod Kumar
(PW7) refers to Billu having told him that Kashmiri had been
stabbed by "some boys" without naming the assailants. The
evidence on record establishes that the deceased explained his
injuries to the doctor and also spoke to the police, he clearly did
not name the appellants as his assailants.
49. It is noteworthy that the factum of giving a false statement to
secure treatment of the injured at the time of admission in the
Tandon Nursing Home is not mentioned in the rukka Exh.PW4/A.
It is also not mentioned in the brief facts of the case as made out by
the investigating officer at the time of making the request for the
autopsy.
50. Our attention has been drawn to the testimony of Sant Ram
(PW-6) and Vinod Kumar (PW-7) who were also examined by the
prosecution. Sant Ram (PW6) is concerned, he has stated at one
place in court that he had named only Raju with other boys
involved in the attack while at another place, he has stated that he
had only told the name of Vinod to the police as one of the
assailants.
51. It is noteworthy that the police reached the hospital when
Kashmiri Lal was receiving treatment at the Tandon Nursing
Home. Billu (PW4) who was present there, Sant Ram (PW-6) and
Vinod Kumar (PW-7) would have come to know that the doctor
had informed the police. They made no disclosure of the version to
the police which finds recorded in the rukka or in their court
testimony.
52. The suggestion of urgency in taking Kashmiri Lal to the
Tandon Nursing Home is also falsified inasmuch as it is in the
evidence of PW-4 that two government hospitals, Guru Teg
Bahadur Hospital and Swami Dayanand Hospital fell on the way.
The witnesses mentioned some reservation about taking Kashmiri
Lal to Guru Teg Bahadur Hospital because of death of a relative
prior thereto in that hospital but there was no reason as to why the
deceased could not be taken to the other Hospital. In fact, these
hospitals were closer to the residence of the deceased.
53. Vinod Kumar (PW7) has submitted that 15-20 persons had
gathered at the spot. No members of the public have been
examined or produced as a witness by the prosecution. Sant Ram
(PW6) has stated that 5-7 persons were chasing the assailants and
that some of them were "bakriwala ladka". He names them as
"Billu", "Titoo" and others.
54. Inspector Rajbir Sharma (PW22) has also referred to having
made enquiries from some persons on the spot but these persons
had not seen the incident.
55. If what was stated by these witnesses was correct, the
testimony of these persons of the public, especially those who
chased the assailants, was material which has not been produced
before the court.
56. It is suspicious that despite their presence at the wedding and
singing and dancing going on, PW4 and PW6 are the only
witnesses to the incident which is alleged to have taken place at
about 11.30 p.m. No other guests from the wedding or the member
of the public has been examined.
57. Both Billu (PW4) and Sant Ram (PW6) have stated that
blood had fallen on the ground. However, the police has found no
blood on the spot and no bloodstained soil has been recovered or
sealed In the endorsement made by Additional SHO Rajbir Sharma
on the rukka (Exh.PW3/A), Inspector Sharma has clearly written
that there were no bloodstains on the spot. The police has also not
bothered to investigate the presence of the blood in the car in
which Kashmiri Lal was taken to the hospital.
58. SI Pyar Singh who actually went to the hospital and met
Kashmiri Lal while he was undergoing treatment at the Tandon
Nursing Home has not been examined. His testimony was
certainly an important piece of evidence.
59. Kashmiri Lal's mother, whose statement is mentioned in DD
24A recorded at about 7.15 a.m. on 3rd December, 1995 has also
not been examined as a witness. In fact, Billu (PW4) has testified
that it was his mother who called the police from the hospital when
the deceased had died.
60. Mr. Vinod Pant, learned counsel for the appellants has
pointed out that the presence of a park close to the residence of the
deceased is established on the court record. In this regard, our
attention is drawn to the testimony of Vinod Kumar (PW7) about
the existence of a park at a distance of 2 or 3 galis from the alleged
place of occurrence in which household waste i.e. broken glass was
being thrown. We also find that in the rough site plan
Exh.PW22/H, two parks are shown in the area. It has been
pointed out that this supports the possibility that deceased Kashmiri
Lal had actually suffered injury as revealed to the Tandon Nursing
Home by the deceased.
Recovery of the sword
61. Apart from the oral evidence of PW4 and PW6, the
prosecution has placed heavy reliance on the alleged recovery of
the sword. Unfortunately, this recovery is also not above
suspicion. This sword was not produced for an opinion before the
post-mortem doctor - Dr. S.K. Verma (PW15) to seek his opinion
as to whether it could possibly have been the weapon of offence.
In the court, when the sword was shown to Dr. S.K. Verma
(PW15), after examination of the injuries noted by him in the post
mortem report Exh.PW15/A, he had opined that injury no.11
mentioned therein was possible with the sword shown to him in
court only in case the sword was straight at the time of occurrence
or use. We have no evidence of the position in which the weapon
was used to inflict the injury upon Kashmiri Lal, if at all.
62. It is in evidence of the investigating officer Inspector Rajbir
Sharma (PW22) that he had not prepared any sketch of the sword
Exhibit P4.
63. The report of the Forensic Science Laboratory (Exh.PX) has
found no blood on the blade of the sword. This sword is clearly
not the weapon of the offence.
Non-compliance of Section 157 CrPC
64. The Code of Criminal Procedure ("Cr.P.C." hereafter)
requires certain mandatory compliances which have been stipulated
by the legislature to ensure credibility in the lodging of the
complaint and the investigation. The requirement of Section 157
Cr.P.C. is one such stipulation. As per Section 157 of the Cr.P.C.,
it is mandated thus :
"157. Procedure for investigation preliminary inquiry.
(1) If, from information received or otherwise, an officer
in charge of a police station has reason to suspect the
commission of an offence which he is empowered
under section 156 to investigate, he shall forthwith
send a report of the same to a Magistrate empowered to
take cognizance of such offence upon a police report
and shall proceed in person, or shall depute one of his
subordinate officers not being below such rank as the
State Government may, by general or special order,
prescribe in this behalf, to proceed, to the spot, to
investigate the facts and circumstances of the case, and,
if necessary, to take measures for the discovery and
arrest of the offender; Provided that-
(a) when information as to the commission of any such
offence is given against any person by name and the
case is not of a serious nature, the officer in charge of a
police station need not proceed in person or depute a
subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police
station that there is no sufficient ground for entering on
an investigation, he shall not investigate the case.
(2) In each of the cases mentioned in clauses (a) and (b)
of the proviso to sub- section (1), the officer in charge of
the police station shall state in his report his reasons for
not fully complying with the requirements of that sub-
section, and, in the case mentioned in clause (b) of the
said proviso, the officer shall also forthwith notify to the
informant, if any, in such manner as may be prescribed
by the State Government, the fact that he will not
investigate the case or cause it to be investigated."
Thus, Section 157 of the CrPC mandates that an officer
incharge of a police station to forthwith send report of the
commission of an offence which he is empowered under Section
156 to investigate, to the Magistrate, empowered to take
cognizance of the offences upon a police report. Section 156
empowers a police officer to investigate cognizable offences.
65. In the present case, we are concerned with commission of an
offence punishable under Section 302 of the IPC which is a
cognizable offence. It was mandatory for the SHO of the police
station Vivek Vihar to send a report of the same to the concerned
Magistrate.
66. We find that in the present case, there is no evidence that
special report of the registration of the offence of murder was ever
sent to the higher police officers. There is no evidence of any entry
in the daily diary of the police station regarding handing over of
the special report to a police official for service upon the
Magistrate, nor an entry of it having been actually served. No
evidence in this regard has been cited. Given the positive evidence
of the doctors at the Nursing Home, the documentary evidence of
the treatment, letters executed by the relatives of the deceased and
the contemporaneous record of the police station and the volte face
by Billu (PW4) and Sant Ram (PW6), the compliance with Section
157 of the CrPC cannot be overlooked. In fact, it casts substantial
doubt on the entire prosecution case against the appellants.
67. Failure to comply with the requirements of sub-section 3 of
Section 157 of the CrPC is coupled with delay in making the
complaint by the brother of deceased and consequential delay in
recording the first information report. The incident happened in
the late night of 2nd December, 1995, despite the police
intervention at the earliest at around 2 a.m. on 3rd December, 1995
and the evidence of police officials having met Kashmiri Lal, then
injured as well as his mother when the other prosecution witnesses
including Vinod (PW7) were present at the Nursing Home, no
complaint was made to them. The evidence establishes that the
report of the admission of Kashmiri Lal in injured condition was
given by Dr. S.N. Sharma (PW16) to the police station.
68. The witnesses do not even suggest any reason why they did
not disclose the incident in terms of their subsequent allegations. In
these circumstances, the delay in informing the police at the
earliest of the version disclosed in Exh.PW4/A suggests that it may
be an afterthought, renders the same suspect and has to be treated
as fatal to the prosecution case.
69. The discussion advanced in the impugned judgment for the
registration of the FIR only after the death of the deceased is
clearly unacceptable in as much as the police was present in the
hospital itself.
70. The finding of the trial court that the FIR was not ante-timed
or that the non-compliance with requirements of Section 157
Cr.P.C. was only a formality and inconsequential, is clearly
unsustainable.
Failure to establish delivery of the sealed samples to the Central
Forensic Science Laboratory
71. The prosecution has led the evidence of HC Ashwini Kumar
(PW1) to the effect that he had taken the five pullandas to the
CFSL on 28th February, 1996 including the sample seal. However,
the CFSL report (Exh.PX) has mentioned that on 14th February,
1996, four sealed parcels were brought by Ct. Hari Singh. The
record of the case shows that the entries in Register No. 19 support
the Forensic Science Laboratory report Exh.PX to the effect that it
was Ct. Hari Singh who carried the pullandas on 14 th February,
1996.
72. Another circumstance which would show that it was not
article which was seized during investigation which was sent for a
forensic examination to the laboratory is illustrated by the Forensic
Science Report Exhibit PX. As per the investigating officer
Inspector Rajbir Sharma (PW22) as well as the brother of the
deceased Billu (PW4), on 3rd December, 1995, Billu (PW4) had
produced a white bloodstained shirt having blue colour stripes
which the deceased was wearing was seized vide Exh.PW4/B.
However, we find that the Forensic Science Laboratory in its report
dated 29th August, 1996 (Exhibit PX) makes a reference to Exhibit
PX being a "full sleeved shirt with black longitudinal bands on
white". There is a lot of difference between blue and black
suggesting that the police had not sent the shirt which was seized to
the Forensic Science Laboratory. The benefit of doubt must enure
to the benefit of the appellants.
73. Even the trial court has noted in para 17 of the impugned
judgment that the prosecution has failed to explain as to why Ct.
Ashwini Kumar was cited and examined as a witness and how his
wrong statement has been recorded.
Conclusion
74. A perusal of the impugned judgment would show that the
learned trial judge has accepted the explanation for change of
version of Billu (PW4) completely ignoring the other evidence on
record, both oral of the three doctors at the Nursing Home as well
as the documentary evidence of the version of the deceased as to
how he had suffered the injuries. The learned trial judge has
completely ignored the evidence on record which included not only
statements attributed to the deceased of the circumstances leading
to his death but also the explanation given by the mother of
deceased Kashmiri Lal to Ct. Pyar Singh as noted in DD 24A. The
fact that the deceased Kashmiri Lal himself had given the history to
not only the doctors but had also spoken to the police also militates
against the explanation admitted to be given by Billu (PW4) to
explain his turn around.
75. The fact that Kashmiri Lal was conscious when he was
admitted in the hospital and thereafter stands established not only
from the oral testimony of Dr. S.N. Sharma (PW16) but also of Dr.
Sudha Bhardwaj (PW13) and the treatment sheets. There is no
basis for the finding returned by the trial judge that the deceased
Kashmiri Lal could not have talked to anybody or given his history
to the concerned doctor or that the doctor had slipped on this count.
76. In the light of the above discussion, it has to be held that the
version put forth by Billu (PW4), Sant Ram (PW6) and Vinod
(PW7) in the witness box is not above suspicion and cannot be
relied upon to uphold the conviction of the appellants. There is,
therefore, no credible evidence to support the conviction of the
appellants.
Result
77. For this reason, the judgment dated 7th August, 2000 passed
by the learned Additional Sessions Judge, Karkardooma in
Sessions Case No.246/96 and the consequential order on sentence
dated 7th August, 2000 and the same are hereby set aside and
quashed. The appellants Naresh @ Raju, Purshotam @ Kaku and
Mukesh Kumar are, therefore, acquitted in relation to the alleged
commission of the offence punishable under Section 302/34 of IPC
1860 in relation to FIR No.603/95 PS Nand Nagri.
78. The record shows that in Crl.A.523/2000, the sentence
imposed upon Naresh @ Raju was suspended by the order dated
15th January, 2003 while that of Purshottam Kumar @ Kaku was
suspended by the order dated 4th August, 2003. So far as Mukesh
Kumar is concerned, in Crl.A.535/2000, his sentence was also
suspended by an order dated 4th August, 2003. In view thereof, the
bonds submitted by them and on their behalf shall stand
discharged.
The Criminal Appeal No.523/2000 and 535/2000 are thus
allowed.
The Trial Court record be returned.
Copy of this judgment be sent to the Superintendent, Tihar
Jail, Delhi.
GITA MITTAL, J
JANUARY 3, 2017 ANU MALHOTRA, J
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