Shri Nath vs The State
2019 Latest Caselaw 2004 Del

      *       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                CRL.A. 430/2003


                                           Reserved on : 14.02.2019.
                                           Date of Decision: 12.04.2019.

IN THE MATTER OF:

SHRI NATH                                                       ..... Appellant
                              Through :    Mr. Mukesh K. Singh and Mr. M.
                                           Yasir Khan, Advocates

                              versus
THE STATE                                                       ..... Respondent
                              Through :    Mr. Amit Gupta, APP

CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI


MANOJ KUMAR OHRI, J.

1. The present appeal has been filed challenging the judgment of conviction dated 29.03.2003 arising out of Sessions Case No.55/1997 in FIR No.77/1997, P.S. Tughlaq Road whereby the appellant has been convicted for the offence punishable under Sections 302 IPC and vide order on sentence dated 31.03.2003, he was sentenced to undergo RI for life and to pay a fine of Rs.1,000/- and in default thereof, to further undergo SI for one month.

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

"Brief facts of the case as called from the record are that Ram Kirpal PW1 complained in police station in form of the statement Ex.PW1/A on 24.3.97 at about 1.15 p.m. that he was present in his jhuggi at Race Course club and watching TV and his wife Bimla went out of Jhuggi he heard shriek of his wife. He came out and saw Shrinath stableman giving knife blow to his wife. On seeing him, he (accused) ran away and he chased him but Shrinath accused threatened him that he would stab him, he became scare and went near his wife who had fallen in injured condition and there were blood stains on the ground. He took her to Chowk where her father in law Ram Dularey had met him and they took her to Safdarjung Hospital in TSR. She was treated there by the doctor but was declared dead after an hour. Shrinath stableman had been visiting her jhuggi/ house for the last 4/5 months but dispute took place with him over the money of Rs.500/- which he (accused) had given to his wife but his wife told that she had not received any money from the accused and he levelled false allegation against her and verbal altercation took place between him and his wife and later on a compromise arrived at and thereafter, he did not come to his jhuggi but used to threaten him during this period. He made murderous assault on her wife. He had given a knife blow on both side of her chest on account of which his wife was murdered by him."

3. On the above statement of Ram Kirpal, husband of Bimla (deceased), a FIR under Section 302 IPC was registered on the same day and was marked for investigation to SI Yashwant (PW-20), who conducted the investigation. The appellant was arrested on 25.03.1997 and pursuant to his disclosure, a blood-stained knife, his shirt and pant were recovered from underneath a round stone lying in a flower bed at Panchseel Marg roundabout.

4. After completing the investigation, a charge sheet was filed and charge for commission of offence punishable under section 302 IPC was framed against the appellant. During the trial, the prosecution examined a total of 20 witnesses.

Scientific Evidence

MLC

5. The MLC (Ex. PW-15/A) was proved by Dr. Sunil Dayal (PW-15) according to which the deceased was brought to the hospital by her husband on 24.03.1997, at about 1.40 pm.

Post Mortem Report.:-

6. PW-6, Dr. G K Chaubey conducted the post mortem of the deceased on 25.03.1997 at about 3:30 pm and proved his report as Ex.PW-6/A. The relevant portion of the PM report is reproduced herein below:

"On examination I found the following external injuries:

1. Stitched incised wound 11 cm in length placed obliquely from right axilla to 5th inter costal space of right chest, on removal of stiches the wound was found to be penetrating through forth inter costal muscle's, size 3 x 1 cm, margins were clean cut and it was going to lateral part of upper lobe of right lung, size of the wound over the lung was 3 x 2 cm. Right thoresic cavity was full of blood approximately 3 liters of blood, lungs were collapsed.

2. Incised wound, left shoulder 4 x 3 cm.

3. Incised wound left scapula 3 x 2 cm.

4. Incised wound left back below inferior angle of scapula 7x2.8 cm.

5. Incised wound left back below injury no.4 7x 3 cm.

6. Incised wound right back 2 x 1 cm placed 2 inches away from mid line.

7. Stab would over left chest inframammary region size 3x2x3 cm. In all the above injuries except 2nd, 3rd 4th 5th 6th one angle was acute and another angle was obtuse.

8. Incised wound front of left thigh both angles acute 2 x 1 cm.

9. Incised wound left thigh over back of left thigh both angles were acute 3 x 1 cm.

10. Multiple abrasions over right knee 6 x 4 cm.

11. Abrasions over left shin of tibia 6x3 cm size. Injuries were anti mortem in measure and fresh before death. Internal examination Stomach contained semi digested food. All the other organs were pale. Time since death was approximately 24 hours. Cause of death was due to hemorrhagic shock as a result of stab injury no.1 and was sufficient to cause death in ordinary course of nature. Blood stained clothing (blouse, brassier, petticoat) and blood sample, blood swab were duly preserved and sealed and handed over to police officers concerned with the seal. My written report is Ex.PW6/A and in my handwriting and bears my signatures at point A."

7. Dr. G K Chaubey also proved his subsequent opinion on the knife as below:

"Subsequent opinion ... Injuries mentioned in PM report No.466/97 numbering I to IX could be produced by the examined weapon."

FSL

8. Besides the samples collected from the spot, samples handed over by the Post Mortem Doctor including the clothes of the deceased along with recoveries made at the instance of the appellant were all sent for analysis to the FSL. Dr. V K Goyal (PW-14) proved the FSL reports (Ex. PW-14/A and Ex. PW-14/B). As per the FSL report, blood was detected on the churra (knife) and the shirt of the appellant. In the

serological analysis, although the blood grouping on the shirt remained inconclusive, but blood of group 'A' was detected on the underwear of the deceased, blood stained gauge (handed over by the Post Mortem Doctor), the churra and the broken brick lifted from the spot.

9. Arguments were addressed by Mr. Mukesh K Singh and Mr. M Yasir Khan, Advocates appearing on behalf of the appellant and Mr. Amit Gupta, learned APP appearing for the State.

10. The learned defence counsel has challenged the impugned judgment on the following grounds:-

1) The appellant was falsely implicated;

2) Testimony of Ram Kirpal is not credible;

3) Testimonies of Ram Kirpal and Ram Dularey are contrary to each other;

4) Absence of any public witness despite the fact that the incident happened in broad-day light that too on the festival of 'Holi'.;

5) Material discrepancies in the injury reports as mentioned in the MLC as compared to the PM report;

6) Difference in the dimensions of the knife as recorded while preparing the sketch vis-à-vis those mentioned in the second opinion of the doctor; and

7) Finger prints and sniffer dog reports were not placed on record.

Material Witnesses

11. The present case is of direct evidence and involves the testimony of the husband of the deceased. As is borne out from the facts, the incident took place on 24.03.1997, when 'Holi' festival was being celebrated. The

incident happened outside the jhuggi of the deceased at about 1-1:30 pm. Ram Kirpal (PW-1) deposed that while he was resting inside his jhuggi, he heard his wife screaming outside, whereupon he immediately rushed outside and saw that the appellant was stabbing his wife (Bimla) with a churra on the left and right side below her armpit. On seeing Ram Kirpal, the appellant fled with the churra in his hand and when Ram Kirpal tried to chase him, the appellant threatened to hurt him as well. Ram Kirpal lifted his injured wife and went towards the chowk where his father-in- law, Ram Dularey, joined him and together they took the injured Bimla in a three-wheeler scooter (TSR) to the hospital. Ram Kirpal further deposed that on the way to the hospital, on enquiry made by Ram Dularey, Bimla told them that the appellant had assaulted her with a churra. Ram Kirpal also deposed that the appellant was known to them and used to visit their jhuggi. About 2 months before the incident, a scuffle had taken place between him and the appellant over an issue regarding non-payment of a loan of Rs.500/- by Bimla as she had denied having taken the said loan from the appellant. He further deposed that, for resolving the dispute, he along with the appellant had approached Raja Ram, the leader of the camp, who had told the appellant not to visit the jhuggi of Ram Kirpal henceforth but the appellant had continued visiting them.

12. Ram Dularey, father of the deceased, was examined as PW-3. He deposed that he was a resident of the same camp and was attending a kirtan when he was informed that his daughter had been injured at about 1-1:30 pm. He went towards the jhuggi and saw that Ram Kirpal was carrying the injured Bimla in his arms and was taking her towards the chowk. He further deposed that he had accompanied Ram Kirpal and his injured daughter to the hospital in a TSR. While on the way to the hospital, he

had enquired from Bimla as to what had happened on which she told him that she was stabbed by the appellant with a churra. He clarified that he had not enquired from Bimla about the incident before she was shifted in the TSR. Further, he had enquired about the incident from Ram Kirpal only when they were going to the hospital in the TSR.

13. The prosecution had examined Sanjay, the TSR driver as PW-2. He testified that on 24.03.1997, between 1:00-2:00 pm, while he was playing Holi, on the request made by the people, he had taken the injured lady along with two male persons in the TSR to Safdarjung hospital. In his cross examination by the learned counsel for the appellant, he stated that the lady was bleeding and was saying something but her voice was feeble and he could not hear what was being said by her, as he was concerned about driving the TSR.

14. Another witness, Ram Kishan, a resident of the same camp was examined by the prosecution as PW-5. He stated that on 24.03.1997, at about 1:30 pm, while he was going to wash his face, he saw the appellant running away with a churra in his hand and scaling over the wall of the Airforce Station. The witness also deposed that the appellant was known to him, being a resident of the same locality. The witness clarified that since he had just glanced at the churra, he was not in a position to identify the same.

15. Raja Ram, the President of the camp, was examined as PW-4 who deposed that about 4-5 months prior to the day of the incident, the appellant and Ram Kirpal had approached him for settlement of their dispute over non-payment of a loan. Chameli (PW-15), a resident of the same camp was examined to prove the loan transaction, however, she turned hostile.

16. SI Yashwant (PW-20) deposed that on receipt of the information regarding the incident, he had reached the spot and recorded the statement of Ram Kirpal and prepared the Rukka (EX. PW-20A). He made seizures from the spot, which included blood stained brick, broken bangles, blood stained earth, blood stained plaster etc. The same were seized vide seizure memos, Ex. PW-8/A to PW-8/G. He along with HC Preetpal arrested the appellant and pursuant to the appellant's disclosure and pointing out, he recovered the churra and appellant's shirt and pant. HC Preetpal was examined as PW-19. His testimony was cumulative to the deposition of SI Yashwant. Rest of the witnesses were examined to prove the registration of FIR and other parts of the investigation.

17. Ram Kirpal (PW-1) had clearly stated that about two months prior to the date of the incident, he had a scuffle with the appellant regarding non-payment of loan of Rs.500/- and that dispute was even discussed with the leader of the camp, Raja Ram (PW-4). It is relevant to note that the factum of the occurrence of the dispute on a previous occasion about non- payment of a loan amount, was not denied by the appellant. The only challenge made was to the time of the dispute. In fact, no suggestion was made to any witness to rebut the factum of a scuffle between the appellant and Ram Kirpal on an earlier occasion. It is also relevant to note that no suggestion was given to the witnesses, disputing the presence of the appellant at the spot at the time of the incident. The deposition of Ram Kirpal about the dispute being resolved by Raja Ram stands corroborated by the testimony of Raja Ram as he too deposed that the appellant and Ram Kirpal had approached him regarding settlement of a loan dispute around 4 to 5 months prior to the date of the incident.

18. So far as the discrepancy in the time period of the said dispute is concerned, it was argued that though Ram Kirpal stated that 'it' happened two months prior to the date of incident, but Raja Ram stated that 'it' happened 4-5 months prior to the day of incident. In view of the fact that the witnesses were examined after over 2 years of the dispute, this difference appears to be of no significance. The prosecution has successfully proved that there was a prior dispute between the appellant and Ram Kirpal on non-payment of loan by the deceased, Bimla to the appellant.

19. Learned counsel for the appellant has doubted the credibility of Ram Kirpal being an eye witness also on the ground that he was related to the deceased. No doubt, the testimony of a related witness is to be scrutinized with utmost care and caution. In this context, in Gangabhavani V Rayapati Venkat Reddy and Ors. (2013) 15 SCC 298, the Supreme Court held as under:

"15...... Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. "18. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased." (emphasis added)

20. Reference may also be made to State of U.P. vs. Kishanpal and Ors. (2008) 16 SCC 73 and Mohabbat and Ors. vs. State of M.P. (2009) 13 SCC 630 where a similar view has been expressed.

21. Ram Kirpal happens to be the husband of the deceased. It was a day of 'Holi' festival and the witness deposed that he was present in his jhuggi alongwith his wife. He deposed that his wife had gone out of the jhuggi and after some time, on hearing her shrieks, he rushed outside his jhugii and saw that the appellant was giving churra blows to his wife below the left and right side of her armpit. A perusal of cross examination of Ram Kirpal reveals that no suggestion was put to him that he was not present in his jhuggi at the time of the incident. On the contrary, it was suggested that he was watching TV inside his jhuggi on the day of the incident when people were playing Holi outside.

22. The appellant did not dispute the spot of the incident. No suggestion to the contrary was given to any of the witnesses. The spot of the incident was just opposite to the jhuggi of Ram Kirpal. In this regard, the relevant portion of his cross examination is reproduced herein below:

".....The incident had taken place in front of the jhuggi of Hari Lal and my jhuggi was situated at a distance of just two steps from the place of incident. It is incorrect to suggest that the accused Shri Nath did not cause any injury to my wife."

23. The testimony of Ram Kirpal about the deceased receiving injuries on her left and right side below the armpit with a churra, outside the jhuggi stands corroborated by the Post Mortem report, the doctor's subsequent opinion and the FSL report (the broken brick seized from the spot showed presence of blood group 'A' which was the blood group of the deceased).

24. Ram Kirpal had also deposed that he carried his injured wife to the chowk and then alongwith Ram Dularey (his father-in-law), took her in a TSR driven by Sanjay (PW-2), to the Safdarjung hospital. Ram Dularey, father of the deceased, and Sanjay the TSR driver were also residents of the same camp. Sanjay is an independent witness. A culminative reading of testimonies of Ram Dularey & Sanjay reveal that they support the deposition of Ram Kirpal to the effect that he had carried his injured wife to the chowk and then taken her to the hospital in a TSR. The MLC was recorded at 1.40 pm and showed that the injured was brought by her husband, Ram Kirpal.

25. It is also noteworthy that both, Ram Dularey and Ram Kirpal had deposed that while the deceased was taken in the TSR, on being enquired by Ram Dularey, she had stated that she was assaulted by the appellant with a churra. The factum of the deceased saying something in feeble voice was also corroborated by Sanjay, the independent witness who was driving the TSR. Though in his statement recorded by the police, Ram Kirpal did not state about the injured stating that the appellant had assaulted her with a churra, however, Ram Dularey in his statement recorded by the police on the date of the incident itself, had stated so. No suggestion was given to Ram Kirpal or Ram Dularey that Bimla was unconscious or that she did not tell them anything. It is relevant that Bimla had succumbed to her injuries within an hour of reaching the hospital. In terms of the scientific evidence on record, it was successfully proved that the death had occurred on account of churra blows. In these circumstances, the statement made by Bimla could well be treated as her 'dying declaration', in terms of S. 32 Indian Evidence Act. Reference in this regard is made to the decision of the Supreme Court in "Sharad

Birdhichand Sarda vs. State of Maharashtra" reported as (1984) 4 SCC 116 wherein it was held as under:

"21. Thus, from a review of the authorities mentioned above and the clear language of S.32(1) of the Evidence Act, the following propositions emerge:-

(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of S.32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under S.32.

(3) The second part of clause (1) of S.32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross- examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a

false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that S.32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of S.32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant." [emphasis added]

26. In this regard, reference may also be made to "Mukhtyar Jabbar Tadvi vs. State of Maharashtra" reported as (2018) SCC Online SC 2279.

27. In light of the above legal position it can be safely inferred that the oral statement made by the deceased to her father in the TSR in presence of her husband, just an hour before her death, would fall under Section 32 of the Indian Evidence Act, relating to the cause of her death and would be admissible.

28. Learned counsel for the appellant had also contended that the testimonies of Ram Kirpal and Ram Dularey are contrary to each other. He pointed out that whereas in his testimony, Ram Kirpal had stated that he had lifted his wife and gone to the chowk where he hailed a TSR. His father-in-law came there and accompanied him with his wife to the hospital. On the other hand, Ram Dularey stated that on coming to know about the incident, he went to the jhuggi and then went towards the chowk and saw Ram Kirpal lifting the injured and taking her towards the chowk. Ld. counsel also pointed out that in the cross examination of Ram Dularey,

he had stated that he didn't enquire from Bimla about the incident before she was shifted in the TSR. He contended that a reading of the above would show that Ram Dularey never enquired from Bimla and rather, enquired from Ram Kirpal. The relevant portion of the cross examination of Ram Dularey is reproduced hereinbelow:

"I did not enquire from Bimla about the incident before she was shifted in the TSR. Similarly, I enquired about the incident from Ram Kirpal only when we were going to hospital in three- wheeler scooter."

29. We do not find any merit in the above pleas as there is no contradiction in the testimonies of the two witnesses and that Ram Dularey had clearly stated that he did not enquire from Bimla about the incident before she was shifted in the TSR, not that he did not ask her how she got injured while travelling in the TSR.

30. The next contention of the learned defence counsel was regarding the absence of any public witness. It was clarified by PW-1 during his deposition that no public person was present outside his jhuggi when he had come out on hearing the screams of his wife. Further, Sanjay, the TSR driver is indeed an independent witness who had deposed that it was PW- 1 and PW-3 who had taken the injured lady to the hospital in his vehicle. He also deposed that the lady was bleeding and was trying to say something which he could not hear as her voice was too feeble.

31. The incident happened at about 1:00 to 1:30 pm and MLC was prepared at about 1:40 pm followed by a rukka at 4:00 pm. It was neither the case of the appellant, nor was any such suggestion put to any of the witnesses that the FIR was ante timed.

32. Coming next to the contention regarding the difference in the number of injures as reflected in the MLC and the PM report, it is contended that the PM report noted 11 injuries on the deceased, whereas the MLC observed only two injuries. Because the MLC is only a preliminary examination whereas the PM report is a detailed examination, the latter takes precedence over the observations made in an MLC.

33. Learned counsel for the appellant argued that the prosecution has failed to connect the churra with the offence, on the ground that the dimensions of the churra are different in the sketch prepared at the time of seizure as against the sketch prepared at the time of the Doctor giving his subsequent opinion. The dimensions of the chhura, as observed in the two sketches, are tabulated below:-

          In the Sketch            At the time of subsequent opinion
                              Wooden handle
 Length             13 cm                        13 cm
 Width                ...                          3.4 cm
                                  Blade
 Length             27.5 cm                      27 cm
 Width              5.8 cm                       5 ½ cm

34. The Churra (knife), along with blood stained shirt and pant, were recovered pursuant to the arrest and disclosure of the appellant on 25.03.1997. In the seizure memo of the churra (Ex. PW-18/G) and its sketch (Ex. PW-19/A), it was mentioned that the churra was blood stained, it had a pointed end and it had an iron strip on the upper part. While giving the subsequent opinion (Ex. PW6/B), on the churra, the doctor had described it as blood stained with one side of blade as sharp edged and the other side blunt and finishing end a little sharp. The tabulated

measurements of the churra, given above, though prepared at different points of time by different persons, reflects a very insignificant difference. The description of the churra given in the two exhibits also match. Moreover, no question or suggestion was given to either PW-6, or PW-19 or PW-20 in whose presence sketch of the churra was prepared.

35. As for the contention of the learned counsel for the appellant that no finger prints or sniffer dog's report was brought on record, SI Yashwant, during his cross examination, clarified that he did not take any chance print. As far as report regarding the sniffer dog is concerned, SI Yashwant stated that no report was submitted by the master of the dogs.

Conclusion:-

36. We are of the view that Ram Kirpal, being husband of the deceased, was a natural witness who was present in his jhuggi on the day of the incident, being a day of the festival of 'Holi'. The testimony of Ram Kirpal, having seen the appellant assaulting Bimla, with the churra, is found to be credible and trustworthy. His deposition regarding the manner in which injuries were caused to the deceased stands corroborated by scientific evidence on record. The churra, the weapon of offence, stood successfully connected by the prosecution with the injuries suffered on the body of the deceased, which resulted in her death. Further, the oral dying declaration of the deceased naming the appellant is admissible under Section 32 of the Indian Evidence Act. Even though, the present is a case of direct evidence, yet the prosecution has successfully proved the motive of the appellant in causing the murder of the deceased. We do not find any merit in any of the pleas taken by learned counsel for the appellant to assail the impugned judgment.

37. The appeal is accordingly dismissed. The impugned judgment is upheld. Bail bond of the appellant is cancelled and he is directed to surrender before the trial court within one week from the date of pronouncement of this judgment. Trial court record be sent back along with a copy of this judgment.

(MANOJ KUMAR OHRI) JUDGE

(HIMA KOHLI) JUDGE APRIL 12th, 2019 sm