Delhi High Court
Gurmeet Singh @ Lucky vs The State (Nct Of Delhi) on 28 February, 2020
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 69/2004
GURMEET SINGH @ LUCKY ..... Appellant
Through Mr. Mukesh Kalia, Advocate with
Mr. M.L. Yadav, Advocate.
versus
THE STATE (NCT OF DELHI) ..... Respondent
Through Ms. Aashaa Tiwari, APP for the State
% Reserved On: 18th February, 2020
Date of Decision: 28th February, 2020
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
JUDGMENT
MANMOHAN, J:
1. Present appeal has been filed by appellant-convict challenging the
judgment dated 11th December, 2003 and the order on sentence dated 19th
December, 2003 passed by Additional Sessions Judge, Delhi in Sessions
Case No. 82/2003 arising out of FIR No. 120/2001 registered with Police
Station Kirti Nagar, whereby he had been convicted under Sections 302/201
of the Indian Penal Code (hereinafter referred to as 'IPC') and sentenced to
life imprisonment with a fine of Rs. 10,000/- for an offence punishable
under Section 302 IPC and three years rigorous imprisonment with fine of
Rs. 2,000/- for the offence punishable under Section 201 IPC.
CASE OF THE PROSECUTION
2. Briefly stated, the prosecution's case is that on 7 th March, 2001, at
about 4:20 am, police was informed through a PCR call that someone had
thrown a body in Ghungroo wali Gali, Ramesh Nagar and this information
was recorded in DD No. 30A (Ex. PW-5/A). Upon receiving this
information, the investigating officer - Inspector Babu Lal (PW-16) reached
the spot and found that the dead body of Bhupender Singh was lying outside
the gate of House No. 97A, Single storey, Ramesh Nagar, New Delhi (house
of the deceased) and the deceased had several injury marks on his body.
3. The investigating officer - Inspector Babu Lal (PW-16) examined the
house of the deceased and he observed that the floor had been cleaned. Upon
suspicion, he questioned the son of the deceased i.e. appellant-convict, who
made a disclosure statement. Thereafter, certain articles were recovered and
the appellant-convict was arrested vide memo Ex. PW-14/A at around 2 pm
on 7th March, 2001. The Trial Court had framed charges under Section 302
and 201 IPC against the appellant-convict.
FINDING OF THE TRIAL COURT
4. The Trial Court after a full trial held the appellant-convict guilty. The
conclusion of the Trial Court is reproduced hereinbelow:-
―41. To sum up, prosecution could bring the following
circumstances against the accused :-
1. Accused used to reside in H. No. 97A Single Storey
Ramesh Nagar, Delhi with his father, mother and younger
sister.
2. There are two bedrooms in the house, one was used by
the deceased and the other by the accused and other
members of the family.
3. In the bedrooms of the deceased blood spots were found
on walls, doors and some portion of the floor.
4. Blood stained pair of shoes and handkerchief were
recovered from the said room.
5. Deceased was an alcoholic who used to quarrel with his
wife, members of the locality and used to borrow money for
liquor and never returned the same, thereby eye-brows were
raised against the deceased and his family members, which
gave motive to the accused to commit ghastly crime.
6. Dead body of deceased was found lying outside the house
with a trail of blood thereby suggesting that his dead body
was dragged upto that spot.
7. A telephone call was given to PCR in order to pass off
that someone had murdered the deceased and thrown his
dead body there.
8. Accused made a disclosure statement and got recovered
cot-arm and cable wire from sun-shed of the said house.
9. Cot-arm was having blood over it.
10. Accused got recovered clothes from central verge of
Najafgarh Road which were stained with blood.
11. Autopsy surgeon opined that cot-arm could have been
used in causing injury on the person of the deceased,
including the fatal blow.
12. Autopsy report opined that death of deceased was caused
on account of head injury.
13. Cable wire recovered at the instance of the accused could
have been used to cause ligature mark present over the dead
body, opines autopsy surgeon.
14. Blood sample and clothes of the deceased were seized.
15. Plaster was broken from walls, seized and sent to FSL.
16. Blood sample and clothes of the deceased were having
blood of human origin and of AB Group.
17. Clothes recovered from central verge Najafgarh Road
near Basaidarapur at the instance of the accused were
having blood of human origin and of AB Group.
18. Cement plaster piece seized from wall of the deceased
was having blood of human origin and of AB Group.
20. Cot arm was having blood over it of human origin.
21. Cable wire recovered from sun-shed as well as seized
from the bedroom of the deceased were of similar texture,
design, diameter and markings etc.
xxxx xxxx xxxx xxxx
43. In order to cause disappearance of evidence of murder,
the accused had cleaned floor of the room and had thrown the
dead body of his father outside the house. It was so done by him
intentionally in order to screen himself from the offence of
murder. Telephone call was given to PCR to pass of that his
father was murdered by someone and had thrown his dead body
outside the house. All these instances are sufficient to conclude
that the accused caused disappearance of evidence and sent
wrong information to police control room in order to screen
himself from punishment. Therefore, it is clear that he has also
committed an offence of causing disappearance of evidence of
murder.
44. The circumstances brought over the record are sufficient
to announce facts in favour of the prosecution. Accused has
failed to raise even an iota of doubt in the case, not to talk of
explaining the circumstances brought over the record.
Therefore, the accused is held guilty and convicted for offences
punishable under section 302 and 201 of the Penal Code. ―
ARGUMENTS ON BEHALF OF THE APPELLANT-CONVICT
5. Mr. Mukesh Kalia, learned counsel for the appellant-convict stated
that in the present case there were two sets of recoveries i.e. one made from
the place of incident and the other made from Najafgarh road. He contended
that the first set of recoveries was doubtful inasmuch as the only
independent witness to those recoveries namely Surjeet Singh (PW-2) had
not supported the case of the prosecution. He pointed out that the alleged
weapon of offence i.e. recovered wooden cot piece and the cable wire were
not shown in the site plan made by the investigating officer (Ex. PW-16/D).
6. Learned counsel for the appellant-convict further contended that the
second set of recoveries (from the Najafgarh road) was made from a public
place which was accessible to all and further, no public person had been
made a witness to the said recoveries. He pointed out that ASI Maharaj
Singh (PW-14), who was a witness to the second set of recoveries, had
stated in his cross-examination that from the place of incident he had
directly gone to the police station. In view of the aforesaid, learned counsel
for the appellant-convict stated that the recoveries in the present case were
wholly unreliable and liable to be discarded. In any event, he contended that
mere recovery of bloodstained articles would not be sufficient to conclude
that the appellant-convict was the perpetrator of the crime. In support of his
contention he relied upon the judgment of this Court in Kallo Passi vs. State,
Crl.A 431/2001.
7. Mr. Kalia emphasised that the prosecution had failed to establish that
the injuries caused to the deceased were ―sufficient in the ordinary course of
nature to cause death‖ as neither the post-mortem report of the deceased nor
the Doctor had deposed to that effect. He submitted that since the aforesaid
fact (i.e. the nature of injuries) had not been established, the essential
ingredient of Section 302 of IPC was not fulfilled and at best, the present
case would fall under Section 304 Part I of IPC.
8. Learned counsel for the appellant-convict contended that there was no
evidence on record to attribute any motive to the appellant-convict. He
stated that the only evidence regarding an alleged motive was the disclosure
statement of the appellant-convict but the same was not admissible in law
and therefore, cannot be relied upon.
9. He pointed out that the mother of the appellant-convict as well as the
younger sister were living in the same house as the appellant-convict yet
neither of them had been examined by the prosecution.
10. Learned counsel for the appellant-convict lastly stated that there was
no direct evidence in the present case and it was entirely based on
circumstantial evidence, which the prosecution had failed to establish.
Consequently, he prayed that the impugned judgment be set aside and the
appellant-convict be acquitted.
ARGUMENTS ON BEHALF OF THE STATE
11. Per contra, Ms. Aashaa Tiwari, stated that as per the post mortem
report of the deceased (Ex. PW-1/A), there were seven injuries on his body
and the time since death was about one and a half days which comes out to
be early morning of 7th March, 2001 and the doctor had opined ―Death due
to head injury‖. The relevant portion of the Post-Mortem report is
reproduced hereinbelow:-
―SCHEDULE OF OBSERVATION
A-GENERAL
1. Name Sardar Bhupinder Singh S/o Gurbux Singh Age 52 yrs Sex M
2. Address R/o 97A, Single Storey, Ramesh Nagar
3. Height 5'7‖ Weight -- Physique Well built
xxx xxx xxx
7. Injuries (briefly but accurately describe all) (State whether injuries
are ante-mortem with reasons):
1. One larcerated wound on right tibial shil 12 cm. below right
knee size 6 cm X 2 cm. muscle deep.
2. One larcerated wound on right ring finger dorsil aspect of
discal phelanx on medial aspect of nale size 2 cm. x .5 cm
into muscle deep.
3. Contusion on left forehead 4 cm. above left eyebrow size 2
cm x 1 cm.
4. Two contusions on left shoulder size 2 cm x .5 cm and second
one .5 x .5 cm.
5. One stellate type (star shaped) wound seen on the left
temparo-parietel region comprising of five larcerated wounds
communicating with each other at one central point situated at
1 cm. above a left ear pinna and 15 cm. from left eyebrow.
1. 3.5 cm x 1 cm. x muscle deep
2. 2 cm x .5 cm. x muscle deep.
3. 2.5 cm x 1.5 cm. x muscle deep.
4. 2 cm. x .5 cm. x muscle deep.
5. 4 cm. x .5 cm. x muscle deep.
6. One triangle shape wound seen 2 cm. right to injury no.5
having three lacerated wounds communicating with each other
at one central point.
1. 1.5 cm x .5 cm x skin deep
2. 1 cm x .5 cm. x skin deep
3. 1.5 cm. X .5 cm. skin deep
7. One transfer ligature mark abraded one seen on the neck
crossing its front at the upper level of thyroid cartilage. On left
side it is going backward horizontally for 14.5 cm. and on left
side it is going backward horizontally for 6.5 cm. The
maximum width .5 cm. It is deficient on posterior and right
posteriro lateral aspect of neck. Dissection under the ligature
mark.
No corresponding bruise under the skin and subcutanous
space. Sternocladomastoid muscle. Hhoid bone cricoid
cartilage thyroid cartilage and tracheal rings are normal and
intact. The jugular and carotid vessels are normal and intact.
xxx xxx xxx
I. TIME SINCE DEAD: App. 1½ days
J. OPINION: Death due to Head Injury
Sd/-
Dr. M.M. NARNAWARE
CMO (N.F.S.C.)
Deptt. Of Mortuary
DDU Hospital, Hari Nagar.‖
12. She contended that since the post mortem report was silent about the
fact whether the head injury was sufficient to cause death in ordinary course
of nature, the same would have to be determined from the facts of the
present case. In support of her contention she relied upon the judgment of
the Supreme Court in State of Rajasthan vs. Shera Ram alias Vishnu Dutta
AIR 2012 SC 1.
13. She emphasized that the subsequent opinion of the Doctor regarding
the recovered weapon of offence had also opined that the injuries caused to
the deceased were possible by the wooden cot piece and the cable wire.
Consequently, according to her the head injury was sufficient to cause death
in ordinary course of nature.
14. Learned APP for the State stated out that the reason why the
recovered wooden piece of cot and the cable wire had not been shown in the
Site Plan (Ex. PW-16/D) had been explained by the investigating officer -
Inspector Babu Lal (PW-16) in his deposition wherein he had deposed that
the recoveries had taken place after the site plan had been prepared. She
emphasised that these articles had been shown in the scaled site plan (Ex.
PW-11/A) which was prepared after the recovery. The relevant portion of
the testimony of the investigating officer - Inspector Babu Lal (PW-16) is
reproduced hereinbelow:-
―It is correct that in the scaled site plan at point F the cable wire
and wooden piece of cot were recovered and that place has not
been shown in site plan prepared by me. (Vol. I had prepared the
site plan before seizing the exhibits but later on when the draftsman
visited the spot I had pointed out the place from where cable wire
and wooden piece were recovered). I had seized the wooden piece
of cot and the cable after preparing site plan Ex.P.W.16/D. At the
spot I had prepared first of all rukka. And then I recorded
statement about identification of dead body and then conducted
inquest proceedings. Then I prepared memo about lifting of blood,
control earth and blood sample of the dead body from where the
dead body was lying. Thereafter I recorded disclosure statement of
the accused. Thereafter I had lifted exhibits from the room and
seized them.
In the disclosure statement of accused there is reference of cable
and piece of cot. The site-plan was prepared earlier to that. It is
correct that I might have omitted to point out the place from where
the cable and piece of cot were recovered. It is incorrect that I
concocted the story of cable and cot piece later on at P.S. It is
incorrect that accused was falsely implicated in this case after
fabricating the evidence.‖
15. Learned APP for the State contended that the deceased was an
alcoholic who used to quarrel with his wife as well as his family and other
members of the locality and was in the habit of borrowing money for liquor
without ever returning the same. She stated that in view of these facts, there
was sufficient motive for the appellant-convict to commit the crime.
16. She stated that the prosecution had established all the circumstances
in the present case and the impugned judgment was based on proper
appreciation of the evidence.
COURT'S REASONING
THE LAW RELATING TO A CASE BASED ON CIRCUMSTANTIAL
EVIDENCE ENUMERATED
17. The present case is entirely based upon circumstantial evidence as
there is no eyewitness to the incident. The law relating to a case based on
circumstantial evidence has been recently discussed by this Court in Amit
Sehrawat @ Lamba vs. State, Crl.A. 242/2018 decided on 20 th February,
2020. The relevant portion of the said judgment is reproduced hereinbelow:-
―21. Having heard the learned counsel for the parties and
having perused the evidence on record, this Court is of the
opinion that the present case is based on circumstantial
evidence. Consequently, it is essential to outline the conditions
that have to be fulfilled before such a case can be said to be fully
established. The Supreme Court in Sharad Birdhichand Sarda
vs. State of Maharashtra, (1984) 4 SCC 116 after referring to
its earlier decision in Hanumant, Son of Govind Nargundkar
vs. State of Madhya Pradesh, 1952 SCR 1091 stated the five
golden principles, constituting the Panchsheel, of proof of a case
based on circumstantial evidence as follows:-
―(1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned ―must or should‖ and not ―may be‖
established. There is not only a grammatical but a legal
distinction between ―may be proved‖ and ―must be or should be
proved‖ as was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC
(Cri) 1033 : 1973 Crl LJ 1783] where the observations were
made: [SCC para 19, p. 807: SCC (Cri) p. 1047]
―Certainly, it is a primary principle that the accused must be and
not merely may be guilty before a court can convict and the
mental distance between ‗may be' and ‗must be' is long and
divides vague conjectures from sure conclusions.‖
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the
accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the one
to be proved, and
(5) there must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused.‖
(emphasis supplied)‖
18. Keeping in view the aforesaid, it is essential to discuss all the
circumstances that are against the appellant-convict and in favour of the
prosecution.
ITEMS RECOVERED FROM THE HOUSE OF THE DECEASED WERE
FOUND CONTAINING HUMAN BLOOD. CONSEQUENTLY, IT IS
PROVED THAT THE DECEASED WAS KILLED IN HIS HOUSE AND
THEN HIS BODY WAS DRAGGED OUTSIDE.
19. The information regarding the present case had been received through
a PCR call which was recorded vide DD No. 30A (Ex. PW-5/A). Thereafter,
the investigating officer-Inspector Babu Lal (PW-16) had reached the spot.
After he had examined the dead body lying outside the house of the
deceased, Inspector Babu Lal (PW-16) had gone inside to inspect wherein
he had observed that the floor of the room of the deceased had been recently
cleaned. He had, however, observed bloodstains on the wall of the said
room. The relevant portion of the testimony of the investigating officer-
Inspector Babu Lal (PW-16) is reproduced hereinbelow:-
―On 7-3-2001 I was posted at P.S. Kirti Nagar as S.H.O.
On that day after receiving D.D.No.30A by ASI Maharaj Singh
I was also informed I went to place of incident 97A, Single
Storey, Ramesh Nagar. I found one dead body of a Sikh male
person whose name revealed later on Bhupinder Singh aged
about 52 years was lying in front of door of H.No.97A. I
inspected the place of incident. The blood was coming out of
the dead body. No eye witness met me there........ I inspected
the house of the deceased i.e. place of incident and I found the
floor of the house clean, but I noticed blood on the walls and
doors of the room of the house in which deceased used to sleep.
Accused met me there and I interrogated him and during
interrogation he disclosed about the commission of the offence
and I arrested accused present in the court............The accused
took us to the ‗Chhajli' of his house and got recovered one
blood stained cot piece (Sheru). The length of the cot piece was
3'3‖ and the same was sealed in pullanda with seal of BL and
accused also got recovered cable wire of black colour. The
length of wire was 11'11‖. On which Kent Cable was written.
The cable wire was also sealed with the same seal and both
these articles were taken into possession vide memo Ex.PW2/B
and accused also signed the same at point ‗A'. The accused
took us into the house and got recovered his pant having blood
stains under the almirah and the paint was sealed in a pullanda
with the seal of BL and was seized vide memo Ex.PW2/C and
accused also signed the same at point ‗A'. After that accused
took us to another room where the incident had allegedly
committed and then I took blood stained plaster, blood stained
floor and blood stained doors and cable wire fixed with T.V.
From that wire the other wire was cut by accused and blood
stained shoes and one handkerchief and these articles were
sealed in pullandas with seal of BL and were seized vide memo
Ex.PW2/D.....‖
(emphasis supplied)
20. It is pertinent to mention that the items recovered from the house of
the deceased i.e. shoes, handkerchief, cement sample etc. were sent for FSL
examination and they were found containing human blood. The
'bloodstained cemented concrete' even had the blood of the deceased i.e.
blood group 'AB'. The relevant portions of the FSL reports (Ex. PW-15/A
and Ex. PW-15/B) are reproduced hereinbelow:-
A. FSL Report Ex. PW-15/A
―FORENSIC SCIENCE LABORATORY
GOVT. OF NCT OF DELHI
Police Complex, Malviya Nagar, New Delhi- 110017
xxx xxx xxx xxx
DESCRIPTION OF ARTICLES CONTAINED IN PARCEL
xxx xxx xxx
Exhibit ‗2' : Cemented concrete having dark brown stains described as
―Blood stained earth‖.
Exhibit ‗3' : Cemented concrete described as ―Sample earth‖.
Exhibit ‗4' : Pieces of cemented plaster described as ―Blood stained
plaster‖.
Exhibit ‗5' : Cotton wool swab having brown stains described as ―Blood
stained cotton‖.
Exhibit ‗6' : Cemented concrete pieces having brown stains described as
―Blood stained floor‖.
Exhibit ‗7a' : Pair of brown shoes.
Exhibit ‗7b' : Pair of socks.
Exhibit ‗8' : One handkerchief having brownish stains.
Exhibit ‗9' : One wooden stick described as ―Blood stained wooden cot
piece‖.
Exhibit ‗10' : One pants described to be of accused.
xxx xxx xxx xxx
RESULTS OF ANALYSIS
1. Blood was detected on exhibits ‗1', ‗2', ‗4', ‗5', ‗6', ‗7a', ‗8', ‗9',
‗11a', ‗11b', ‗11c', ‗11d', ‗11f', ‗11g', ‗11h', ‗12a', ‗12b', ‗12c'and
‗13'.
2. Blood could not be detected on exhibits ‗3', ‗7b', ‗10' and ‗11e'.
3. Report of serological analysis in original is attached herewith.
xxx xxx xxx xxx
(DR. DHRUW SHARMA)
Senior Scientific Officer (Biology)
Forensic Science Laboratory, Delhi
Cum Ex Officio Chemical Examiner to the
Govt. of National Capital Territory of Delhi
(emphasis supplied)
B. FSL Report Ex. PW-15/B
―FORENSIC SCIENCE LABORATORY
GOVT. OF NCT OF DELHI
Police Complex, Malviya Nagar, New Delhi- 110017
BIOLOGY DIVISION
xxx xxx xxx xxx
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:
Species of ABO Group/ Remarks
Exhibits
Origin
xxx xxx xxx
‗2' Blood stained cemented concrete Human ‗AB' Group
No
‗3' Control cemented concrete -
reaction
‗4' Blood stained plaster Human No reaction
‗5' Cotton wool swab Human No reaction
‗6' Blood stained concrete Human No reaction
‗7a' Pair of shoes Human No reaction
‗8' Handkerchief Human Inconclusive
‗9' Wooden stick Human No reaction
xxx xxx xxx
(DR. DHRUW SHARMA)
Senior Scientific Officer (Biology)
Forensic Science Laboratory, Delhi
Cum- Ex Officio Chemical Examiner to the
Govt. of National Capital Territory of Delhi‖
(emphasis supplied)
21. In view of the aforesaid, it is proved that the deceased was killed in
his house and then his body was dragged outside.
IT IS AN ADMITTED FACT THAT THE APPELLANT-CONVICT WAS
RESIDING AT THE PLACE OF INCIDENT. HOWEVER, HE HAS FAILED
TO THROW ANY LIGHT UPON FACTS WHICH WERE SPECIALLY
WITHIN HIS KNOWLEDGE AND WHICH COULD NOT SUPPORT ANY
THEORY OR HYPOTHESIS COMPATIBLE WITH HIS INNOCENCE.
CONSEQUENTLY, THIS COURT IS OF THE OPINION THAT THE
APPELLANT-CONVICT'S FAILURE TO ADDUCE ANY EXPLANATION
IS AN ADDITIONAL LINK WHICH FORMS A PART OF THE CHAIN OF
EVENTS.
22. It is an admitted fact that the appellant-convict was residing in House
No. 97A, Single storey, Ramesh Nagar, New Delhi (i.e. the place of
incident). It is not the appellant-convict's case that he was not at home or
was elsewhere when the incident had occurred.
23. Since it was proved that the appellant-convict was present at the scene
of crime, it was for the appellant-convict to show how his father had died
and how the dead body was found lying outside their house. However, the
appellant-convict has failed to throw any light upon facts which were
specially within his knowledge and which could not support any theory or
hypothesis compatible with his innocence. Consequently, this Court is of the
opinion that the appellant-convict's failure to adduce any explanation is an
additional link which forms a part of the chain of events.
DR. MM NARNAWARA (PW-1) HAD OPINED THAT INJURIES
MENTIONED IN THE POST MORTEM REPORT OF THE DECEASED
COULD BE POSSIBLE FROM THE WEAPONS RECOVERED AT THE
INSTANCE OF THE APPELLANT-CONVICT NAMELY A BLOOD-
STAINED WOODEN COT PIECE AND A CABLE WIRE.
24. Two weapons were recovered (vide seizure memo Ex. PW-2/B) at the
instance of the appellant-convict namely a blood-stained wooden cot piece
and a cable wire, as mentioned in the aforesaid testimony of the
investigating officer-Inspector Babu Lal (PW-16). FSL examination had
confirmed that human blood was present on the wooden cot piece. Both
these weapons were sent for subsequent opinion to Dr. MM Narnawara
(PW-1) who had opined that injuries mentioned in the post mortem report of
the deceased could be possible from these weapons. The relevant portion of
the subsequent opinion (Ex. PW-1/B) of Dr. M.M. Narnawara (PW-1) is
reproduced hereinbelow:-
―Received two sealed packets with B.L. Seal on 30/3/2001.
1. On opening one packet, one wooden-cot piece was found inside
the packet. The injuries Serial No.1 to 6 could have been
caused from this weapon.
2. On opening second packet a cable wire (Black colour) was
found inside the packet. The injury No.7 could have been
caused from this ligature material.
Both the items resealed with LKB seal and handed over to I.O.
Sd/-
Dr. M.M. NARNAWARE
CMO (N.F.S.C.)
Deptt. Of Mortuary
DDU Hospital, Hari Nagar.‖
(emphasis supplied)
25. The cable wire recovered at the instance of the appellant-convict from
the ―chajjli‖/ balcony, which was opined to have caused injury number
seven to the deceased, was found to be similar to the cable wire that was
recovered from the room of the deceased. The relevant portion of the FSL
report (Ex. PW-15/C) is reproduced hereinbelow:-
―FORENSIC SCIENCE LABORATORY
GOVT. OF NCT OF DELHI
POLICE COMPLEX, MALVIYA NAGAR, NEW DELHI- 110017
REPORT No. FSL 2001/B-1038/P-166/2001 Dated 19.11.2001
xxx xxx xxx
Exhibit 14 : One black colour cable wire measuring approximately two
meters in length having connecting plug at one end.
xxx xxx xxx
Exhibit 15 : One black colour cable wire measuring approximately 3.5
meter in length.
RESULTS OF EXAMINATION
Examined the cable wires in Exhibit-14 and Exhibit-15 physically
and under magnification. They were found to be similar in respect of colour,
texture, design, diameter of cable, diameter of inner white plastic core,
diameter of copper wires, design of the shield wires, markings on the cable
and microscopic appearance.
Note: Exhibits sent to this division for examination have been sealed with
the seal of ―S.V.-FSL-DELHI‖.
(Dr. SWAROOP VEDANAND)
Senior Scientific Officer (Physics)
Forensic Science Laboratory, Delhi
Cum Ex Officio Chemical Examiner to the
Govt. of National Capital Territory of Delhi‖
(emphasis supplied)
INSOFAR THE CONTENTION THAT THE INDEPENDENT WITNESS TO
THE RECOVERY HAD TURNED HOSTILE IS CONCERNED, THIS
COURT IS OF THE VIEW THAT THE SAME DOES NOT AFFECT THE
CASE OF PROSECUTION AS THE OTHER POLICE WITNESS NAMELY
ASI MAHARAJ SINGH (PW-14) HAD EXHIBITED THE RECOVERY
MEMO REGARDING RECOVERED ARTICLES.
26. Insofar the contention that the independent witness to the recovery
had turned hostile is concerned, this Court is of the view that the same does
not affect the case of prosecution as the other police witness namely ASI
Maharaj Singh (PW-14) had supported the case of the prosecution and
exhibited the recovery memo regarding recovered articles. The Supreme
Court in Rameshbhai Mohanbhai Koli & Ors. Vs. State of Gujarat, (2011)
11 SCC 111 has held that even if panch witness turns hostile the evidence of
person who effected the recovery would not stand vitiated. The relevant
portion of the said judgment is reproduced hereinbelow:-
―24. Another important piece of evidence in the form of
panchnama of the scene of offence is Ext. 384. The prosecution
has relied upon the oral testimony of Vijaybhai Bhagvanjibhai
Zariya, PW 35 (Ext. 383) and Babubhai Chakubhai Vania, PW
68 (Ext. 519). It is true that both the panchas have turned hostile
and not supported the case of the prosecution, however,
panchnama has been exhibited in the cross-examination of PW
35. As requested by the State counsel, we verified the said
panchnama which is available in the paper book (vide p. 2081)
which is an application form bearing No. 001351 of A-1
Rameshbhai Mohanbhai Vaghani with his residential address
was found wherein he applied for a loan of Rs. 60,000 for the
purpose of purchasing rickshaw and on the said form also
bloodstains were found. In view of the same, the said form was
recovered while preparing panchnama of the scene of offence.
This document is one of the circumstances against A-1 about his
presence at the time of occurrence at the place of incident. This
evidence can be relied upon to show that A-1 was present at the
place of offence at the relevant time.
25. In the same manner, though panchas of several other
panchnamas in respect of recovery of handkerchief, seat of
motorcycle and other articles with bloodstains have turned
hostile and not supported the prosecution case, those
panchnamas were exhibited during the examination of the
investigating officer and for a limited purpose, therefore, they
can be relied upon.
xxxx xxxx xxxx xxxx
Evidence of the investigating officer
32. An argument was advanced about reliance based on the
evidence of investigating officer. This Court in State of
U.P. v. Krishna Gopal [(1988) 4 SCC 302 : 1988 SCC (Cri) 928]
has held that courts of law have to judge the evidence before
them by applying the well-recognised test of basic human
probabilities.
―3. ... prima facie public servants must be presumed to act
honestly and conscientiously and their evidence has to be
assessed on its intrinsic worth and cannot be discarded merely
on the ground that being public servants they are interested in
the success of their case.‖ (Vide State of Kerala v. M.M.
Mathew [(1978) 4 SCC 65 : 1978 SCC (Cri) 503 : 1978 SCC
(Tax) 209] at SCC p. 68, para 3.)
33. In Modan Singh v. State of Rajasthan [(1978) 4 SCC 435 :
1979 SCC (Cri) 56] it was observed (at SCC p. 438, para 9) that
where the evidence of the investigating officer who recovered the
material objects is convincing, the evidence as to recovery need
not be rejected on the ground that seizure witnesses did not
support the prosecution version. Similar view was expressed
in Mohd. Aslam v. State of Maharashtra.‖
34. In Anter Singh v. State of Rajasthan [(2004) 10 SCC 657 :
2005 SCC (Cri) 597] , it was further held that: (SCC p. 661, para
10)
―10. ... even if panch witnesses turn hostile, which happens
very often in criminal cases, the evidence of the person who
effected the recovery would not stand vitiated.‖
(emphasis supplied)
INSPECTOR BABU LAL (PW-16) HAD EXPLAINED THE ABSENCE OF
WOODEN COT PIECE AND CABLE WIRE IN THE UNSCALED SITE
PLAN INASMUCH AS HE HAD DEPOSED THAT WOODEN COT PIECE
AND CABLE WIRE HAD BEEN RECOVERED AFTER HE HAD
PREPARED THE SAID SITE PLAN. THE RECOVERY OF THE WEAPONS
(I.E. BLOOD-STAINED WOODEN COT PIECE AND A CABLE WIRE)
USED IN THE COMMISSION OF THE CRIME AT THE INSTANCE OF
APPELLANT-CONVICT IS ADMISSIBLE UNDER SECTION 27 OF THE
EVIDENCE ACT AND IS AN IMPORTANT CIRCUMSTANCE AGAINST
THE APPELLANT-CONVICT.
27. Further, this Court is in agreement with the learned APP that the
investigating officer - Inspector Babu Lal (PW-16) had explained the
absence of wooden cot piece and cable wire in the unscaled site plan (Ex.
PW-16/D) inasmuch as he had deposed that wooden cot piece and cable
wire had been recovered after he had prepared the said site plan. The scaled
site plan (Ex. PW-11/A) that was prepared subsequent to the recoveries
shows the presence of these weapons i.e. wooden cot piece and cable wire.
28. Consequently, the recovery of the weapons (i.e. blood-stained wooden
cot piece and a cable wire) used in the commission of the crime at the
instance of appellant-convict is admissible under Section 27 of the Evidence
Act and is an important circumstance against the appellant-convict.
THE ARTICLES THAT WERE RECOVERED FROM CENTRAL VERGE OF
THE NAJAFGARH ROAD WERE NOT ORDINARILY VISIBLE TO THE
PUBLIC AND THE PLACE OF RECOVERY WAS WITHIN THE
EXCLUSIVE KNOWLEDGE OF THE APPELLANT-CONVICT.
CONSEQUENTLY, THE SAID RECOVERY CANNOT BE DISCARDED ON
THE GROUND THAT IT WAS MADE FROM A PUBLIC PLACE. THE
CONTENTION THAT THE RECOVERY IS UNRELIABLE BECAUSE
THERE WAS NO PUBLIC WITNESS TO THE SAME IS UNTENABLE IN
LAW. FURTHER, THE RECOVERED CLOTHES WERE FOUND TO
HAVE BLOOD OF THE DECEASED BEING BLOOD GROUP ‗AB'.
29. The appellant-convict had also contended that since ASI Maharaj
Singh (PW-14) had stated in his cross-examination that from the place of
incident, he had directly gone to the police station, the recovery from central
verge of Najafgarh Road would be inadmissible. However, it is relevant to
point out that ASI Maharaj Singh (PW-14) had specifically denied a
suggestion that 'the appellant-convict had not got recovered clothes from
Najafgarh Road'. The relevant portion of the testimony of ASI Maharaj
Singh (PW-14) is reproduced hereinbelow:-
―......Then accused led the police party to Najafgarh Road
opposite Basai Dara Pur and from central verge of the road
accused got recovered ‗ one Potli' containing four shirts, two
pieces of bed sheet, the bed sheet of which ‗Potli' was made.
All clothes were blood stained and same were sealed with seal
of BL and seized vide memo Ex.PW14/C. Then accused was
brought to P.S.......
xxxx xxxx xxxx xxxx
.......It is also incorrect to suggest that accused had not got
recovered four shirts two pieces of bed sheet and one from the
Najafgarh road. It is also incorrect to suggest that I was not
alongwith the SHO in this case and only joined the
proceedings with him in the PS.......‖
(emphasis supplied)
30. Keeping in view the aforesaid as well as the entire testimony of ASI
Maharaj Singh (PW-14), this Court is of the opinion that the statement made
by ASI Maharaj Singh (PW-14) in his cross examination was a minor
discrepancy as he had supported the case of the prosecution including the
recovery made at the instance of appellant-convict from the central verge of
Najafgarh road.
31. In fact, as held by the Trial Court, after the recovery of weapons, the
appellant-convict had led the police team to central verge of Najafgarh road
and got a bundle of clothes recovered vide seizure memo Ex. PW-14/C. The
investigating officer (PW-16) had deposed that the said articles were
concealed under a tree. The relevant portion of his testimony on this aspect
is reproduced hereinbelow:-
―.......After that accused led us to Najafgarh Rod, Central Verge
opposite Yateen Motors, Basai Dara Pur and got recovered one
pullanda of clothes which was concealed by him under the tree
of Kaner. The pullanda was opened and it was found to contain
one piece of bed sheet having blood stains of orange colour
designdar, one piece of another bed sheet blood stains of black
and yellow colour, one shirt having blood stains of black and
white checkdar and one shirt of blue check having blood stains,
one shirt of blue check having blood stains, one underwear and
one piece of cloth of blue colour blood stained. All these
clothes were put in a gunny bag and were sealed with seal of BL
and were seized vide memo Ex.PW14/C......‖
(emphasis supplied)
32. Consequently, the articles that were recovered from central verge of
the Najafgarh road were not ordinarily visible to the public and the place of
recovery was within the exclusive knowledge of the appellant-convict.
Accordingly, the said recovery cannot be discarded on the ground that it was
made from a public place, as sought to be contended by the learned counsel
for the appellant-convict. The Supreme Court in State of Himachal Pradesh
vs. Jeet Singh, AIR 1999 SC 1293 has held as under:-
―26. There is nothing in Section 27 of the Evidence Act which
renders the statement of the accused inadmissible if recovery of
the articles was made from any place which is ―open or
accessible to others‖. It is a fallacious notion that when recovery
of any incriminating article was made from a place which is open
or accessible to others, it would vitiate the evidence under
Section 27 of the Evidence Act. Any object can be concealed in
places which are open or accessible to others. For example, if
the article is buried in the main roadside or if it is concealed
beneath dry leaves lying on public places or kept hidden in a
public office, the article would remain out of the visibility of
others in normal circumstances. Until such article is disinterred,
its hidden state would remain unhampered. The person who hid it
alone knows where it is until he discloses that fact to any other
person. Hence, the crucial question is not whether the place was
accessible to others or not but whether it was ordinarily visible
to others. If it is not, then it is immaterial that the concealed
place is accessible to others.
27. It is now well settled that the discovery of fact referred to in
Section 27 of the Evidence Act is not the object recovered but the
fact embraces the place from which the object is recovered and
the knowledge of the accused as to it (Pulukuri
Kottaya [Pulukuri Kottaya v. Emperor, AIR 1947 PC 67 : 74 IA
65] ). The said ratio has received unreserved approval of this
Court in successive decisions.....‖
(emphasis supplied)
33. The other contention of the appellant-convict that the second set of
recovery is unreliable because there was no public witness to the same is
untenable in law. The Supreme Court in a catena of judgments has held that
recovery of evidence does not become doubtful merely on account of non-
joining of public witnesses. The Supreme Court in State, Govt. of NCT of
Delhi Vs. Sunil and Another, (2001) 1 SCC 652 has held that in absence of
any evidence to the contrary, testimony of police witnesses ought to be
believed. The relevant portion of the said judgment is reproduced
hereinbelow:-
―21. We feel that it is an archaic notion that actions of the police
officer should be approached with initial distrust. We are aware
that such a notion was lavishly entertained during the British
period and policemen also knew about it. Its hangover persisted
during post-independent years but it is time now to start placing
at least initial trust on the actions and the documents made by
the police. At any rate, the court cannot start with the
presumption that the police records are untrustworthy. As a
proposition of law the presumption should be the other way
around. That official acts of the police have been regularly
performed is a wise principle of presumption and recognised
even by the legislature. Hence when a police officer gives
evidence in court that a certain article was recovered by him on
the strength of the statement made by the accused it is open to the
court to believe the version to be correct if it is not otherwise
shown to be unreliable. It is for the accused, through cross-
examination of witnesses or through any other materials, to show
that the evidence of the police officer is either unreliable or at
least unsafe to be acted upon in a particular case. If the court
has any good reason to suspect the truthfulness of such records
of the police the court could certainly take into account the fact
that no other independent person was present at the time of
recovery. But it is not a legally approvable procedure to presume
the police action as unreliable to start with, nor to jettison such
action merely for the reason that police did not collect signatures
of independent persons in the documents made contemporaneous
with such actions.‖
(emphasis supplied)
34. The bundle of clothes recovered from central verge of Najafgarh road
were sent for FSL examination and the clothes were found to have blood of
the deceased being blood group 'AB'. The relevant portions of the FSL
reports (Ex. PW-15/A and Ex. PW-15/B) on this aspect are reproduced
hereinbelow:-
A. FSL Report Ex. PW-15/A
―FORENSIC SCIENCE LABORATORY
GOVT. OF NCT OF DELHI
Police Complex, Malviya Nagar, New Delhi- 110017
xxx xxx xxx xxx
DESCRIPTION OF ARTICLES CONTAINED IN PARCEL
xxx xxx xxx xxx
Exhibit ‗11a' : One dari having brownish stains.
Exhibit ‗11b' : One cut/torn cloth piece (Bed sheet).
Exhibit ‗11c' : One cloth (curtain).
Exhibit ‗11d' : One black-white shirt having brown stains.
Exhibit ‗11e' : One bluish shirt.
Exhibit ‗11f' : One bluish shirt having brown stains.
Exhibit ‗11g' : Blue cloth piece having brownish stains.
Exhibit ‗11h' : One brown underwear having dirty stains.
xxx xxx xxx xxx
RESULTS OF ANALYSIS
1. Blood was detected on exhibits ‗1', ‗2', ‗4', ‗5', ‗6', ‗7a', ‗8', ‗9',
‗11a', ‗11b', ‗11c', ‗11d', ‗11f', ‗11g', ‗11h', ‗12a', ‗12b', ‗12c'and
‗13'.
2. Blood could not be detected on exhibits ‗3', ‗7b', ‗10' and ‗11e'.
3.Report of serological analysis in original is attached herewith.‖
xxx xxx xxx xxx
(DR. DHRUW SHARMA)
Senior Scientific Officer (Biology)
Forensic Science Laboratory, Delhi
Cum Ex Officio Chemical Examiner to the
Govt. of National Capital Territory of Delhi‖
(emphasis supplied)
B. FSL Report Ex. PW-15/B
―FORENSIC SCIENCE LABORATORY
GOVT. OF NCT OF DELHI
POLICE COMPLEX, MALVIYA NAGAR, NEW DELHI- 110017
BIOLOGY DIVISION
xxx xxx xxx xxx
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 Origin ABO Group/ Remarks
xxx xxx xxx
‗11a' Dari Human ‗AB' Group
‗11b' Cloth piece Human ‗AB' Group
‗11c' Curtain Human ‗AB' Group
‗11d' Shirt Human ‗AB' Group
‗11f' Shirt Human ‗AB' Group
‗11g' Cloth Piece Human ‗AB' Group
‗11h' Underwear Human ‗AB' Group
Xxx xxx xxx
(DR. DHRUW SHARMA)
Senior Scientific Officer (Biology)
Forensic Science Laboratory, Delhi
Cum- Ex Officio Chemical Examiner to the
Govt. of National Capital Territory of Delhi‖
(emphasis supplied)
THIS COURT IS IN AGREEMENT WITH THE CONTENTION OF THE
LEARNED APP THAT IN VIEW OF THE MONEY BORROWING AND
DRINKING HABIT OF THE DECEASED, THE APPELLANT-CONVICT
HAD SUFFICIENT MOTIVE TO COMMIT THE CRIME.
35. It is settled law that motive is not a sine qua non for the conviction of
an accused person, yet it is a relevant factor in a case based upon
circumstantial evidence. In the present case, the appellant-convict had
admitted in his statement recorded under Section 313 Cr. P.C. that his
deceased-father was an ―alcoholic who used to fight everyday with everyone
in the mohallah and sometimes with outsiders‖.
36. Consequently, this Court is in agreement with the contention of the
learned APP that in view of the money borrowing and drinking habit of the
deceased, his son i.e. the appellant-convict had sufficient motive to commit
the crime.
KEEPING IN VIEW THE FOLLOWING CIRCUMSTANCES, ESPECIALLY
THE MEDICAL AND SCIENTIFIC EVIDENCE, WHICH IS OF
CONCLUSIVE NATURE, THIS COURT IS OF THE VIEW THAT THE
CHAIN OF EVENTS IS COMPLETE.
37. Considering the aforesaid findings, the following circumstances have
been proved and they form a complete chain of events:-
A. The appellant-convict had admitted that he used to reside at the
place of incident i.e. House No. 97A, Single storey, Ramesh Nagar,
New Delhi along with his family members which included his
deceased-father.
B. The appellant-convict had admitted that his deceased-father
―was an alcoholic who used to fight everyday with everyone in the
mohallah and sometimes with outsiders‖. This proves that appellant-
convict had motive.
C. On 7th March, 2001 i.e. the date of the incident, at about 4:20
am a PCR call was received and the caller had informed that someone
had thrown a body outside House No. 97A, Single storey, Ramesh
Nagar, New Delhi (house of the deceased) and DD No. 30A regarding
the said information was recorded.
D. Upon receiving the information vide DD No. 30 A, the
investigating officer - Inspector Babu Lal (PW-16) had reached the
place of incident and examined the spot. He had noticed bloodstains
on the walls of the room of the deceased and other bloodstained
articles were recovered from the same room. This proves that the
incident had taken place inside the room of the deceased and
thereafter, the body had been dragged outside.
E. Though the appellant-convict was at home when the incident
had occurred, yet he failed to adduce any explanation as to how his
father had died. Consequently, Section 106 of the Evidence Act is
attracted to the present case.
F. Appellant-convict was arrested on 7th March, 2001 vide arrest
memo Ex. PW-14/A and the weapons of offence namely a
bloodstained wooden cot piece and a cable wire were recovered at the
instance of the appellant-convict vide seizure memo Ex. PW-2/B.
G. Other materials (plaster sample from the room of the deceased,
shoes, handkerchief etc.) were also seized from the place of incident
and they were also found to be bloodstained.
H. Thereafter, a bundle of clothes (bedsheet, curtain, shirt etc.),
which were concealed under a tree near the central verge of Najafgarh
road, were also recovered at the instance of the appellant-convict vide
seizure memo Ex. PW-14/C. These clothes were found to have blood
of the deceased i.e. blood group 'AB'.
I. On 8th March, 2001, post-mortem of the deceased was
conducted.
J. As per the subsequent medical opinion (Ex.PW-1/B), injuries
mentioned in the post-mortem report of the deceased were possible by
the recovered weapons of offence i.e. bloodstained wooden cot piece
and a cable wire.
K. FSL report (Ex.PW-15/A) confirmed that human blood was
present on the recovered bloodstained wooden cot piece.
L. FSL report (Ex. PW-15/C) confirmed that the cable wire
recovered at the instance of the appellant-convict from the
―chajjali‖/balcony was similar to the cable wire recovered from the
room of the deceased.
M. The investigating officer had observed that the floor of the
room of the deceased (where the incident had taken place) was
cleaned and the body was dragged outside, where it was lying on a
dari/cloth piece.
38. Keeping in view the abovementioned circumstances, especially the
medical and scientific evidence, which is of conclusive nature, this Court is
of the view that the chain of events is complete and the circumstances
against the appellant-convict are fully established.
HOWEVER, THIS COURT IS OF THE VIEW THAT THE PROSECUTION
HAS FAILED TO BRING ANY EVIDENCE ON RECORD TO ATTRACT
THIRD CLAUSE OF SECTION 300 OF THE IPC AND THE INJURIES
SUFFERED BY THE DECEASED HAVE NOT BEEN PROVED TO BE
―SUFFICIENT IN THE ORDINARY COURSE OF NATURE TO CAUSE
DEATH‖. CONSEQUENTLY, THE APPELLANT-CONVICT HAD
CAUSED INJURIES TO HIS FATHER AND RESULTANTLY COMMITTED
AN OFFENCE PUNISHABLE UNDER SECTION 304 PART I OF IPC.
39. However, neither the post mortem report, nor the death report or the
doctor who had conducted the post mortem i.e. Dr. MM Narnawara (PW-1)
had specifically stated that any of the injuries suffered by the deceased were
―sufficient in the ordinary course of nature to cause death‖. Section 300 of
IPC reads as under:-
"Section 300 Murder.--Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by which
the death is caused is done with the intention of causing
death, or--
Secondly.--If it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause the
death of the person to whom the harm is caused, or--
Thirdly.--If it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to
cause death, or--
Fourthly.--If the person committing the act knows that it is
so imminently dangerous that it must, in all probability,
cause death, or such bodily injury as is likely to cause
death, and commits such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid.
(emphasis supplied)
40. After examining the post mortem report and statement of witnesses, it
cannot be said that the injuries suffered by the deceased were such that they
would have certainly resulted in death of the victim. The Supreme Court in
State of Rajasthan vs. Shera Ram alias Vishnu Dutta (supra) has held that
whether an injury was sufficient to cause death or not is a question of fact
and the same has to be determined by the Court in light of evidence adduced
by the prosecution and other facts of the case. The relevant portion of the
said judgment is reproduced hereinbelow:-
―34. In the present case also, there is no documentary
or oral evidence to prove the fact that the injuries caused by
the respondent to the deceased were sufficient in the
ordinary course of nature to cause death. This, however,
cannot be stated as an absolute proposition of law and the
question whether the particular injury was sufficient in the
ordinary course of nature to cause death or not is a
question of fact which will have to be determined in light of
the facts, circumstances and evidence produced in a given
case. (Ref. Halsbury's Laws of India, 5(2), Criminal Law
II.).
35. There could be cases where injuries caused upon the
body of the deceased per se can irresistibly lead to the
conclusion that the injuries were sufficient to cause death in
the ordinary course of nature, while there may be other
cases where it is required to be proved by documentary and
oral evidence. Resultantly, it will always depend on the facts
of each case. Thus, in such cases, it may neither be
permissible nor possible to state any absolute principle of
law universally applicable to all such cases.‖
(emphasis supplied)
41. The Supreme Court in Laxman Kalu Nikalje Vs. State of
Maharashtra, AIR 1968 SC 1390 has held as under:-
―11. That section requires that the bodily injury must be
intended and the bodily injury intended to be caused must
be sufficient in the ordinary course of nature to cause death.
This clause is in two parts; the first part is a subjective one
which indicates that the injury must be an intentional one
and not an accidental one; the second part is objective in
that looking at the injury intended to be caused, the court
must be satisfied that it was sufficient in the ordinary course
of nature to cause death. We think that the first part is
complied with, because the injury which was intended to be
caused was the one which was found on the person of
Ramrao. But the second part in our opinion is not fulfilled,
because but for the fact that the injury caused the severing
of artery, death might not have ensued. In other words,
looking at the matter objectively, the injury which Laxman
intended to cause did not include specifically the cutting of
the artery but to wound Ramrao in the neighbourhood of the
clavicle. Therefore, we are of opinion that the thirdly of
Section 300 does not cover the case. Inasmuch as death has
been caused, the matter must still come within at least
culpable homicide not amounting to murder. There again,
Section 299 is in three parts. The first part takes in the
doing of an act with the intention of causing death. As we
have shown above, Laxman did not intend causing death
and the first part of Section 299 does not apply. The second
part deals with the intention of causing such bodily injury as
is likely to cause death. Here again, the intention must be to
cause the precise injury likely to cause death and that also,
as we have shown above, was not the intention of Laxman.
The matter therefore comes within the third part. The act
which was done was done with the knowledge that Laxman
was likely by such act to cause the death of Ramrao. The
case falls within the third part of Section 299 and will be
punishable under the second part of Section 304 of the
Indian Penal Code as culpable homicide not amounting to
murder. We accordingly alter the conviction of Laxman
from Section 302 to Section 304 of the Indian Penal Code
and in lieu of the sentence of imprisonment for life imposed
on him, we impose a sentence of rigorous imprisonment for
7 years. With this modification, the appeal shall stand
dismissed.‖
(emphasis supplied)
42. In view of the aforesaid, this Court is of the view that the prosecution
has failed to bring any evidence on record to attract third clause of Section
300 of the IPC and the injuries suffered by the deceased have not been
proved to be ―sufficient in the ordinary course of nature to cause death‖.
43. Consequently, the prosecution has successfully proved beyond
reasonable doubt that the appellant-convict had caused injuries to his father-
Bhupender Singh only and resultantly committed an offence punishable
under Section 304 Part I of IPC.
44. Further, the fact that the room of the deceased had been cleaned and
the body was dragged outside the house proves that the appellant-convict
had tried to cause disappearance of evidence in order to protect himself from
punishment. Consequently, he is also guilty of the offence punishable under
Section 201 IPC.
CONCLUSION
45. In view of the aforesaid, present appeal is partly allowed. The
conviction and order on sentence under Section 302 IPC is altered and
appellant-convict is convicted under Section 304 Part I of the IPC.
46. Keeping in view the fact that the appellant was about nineteen years
on the date of the offence and he had been incarcerated for more than five
years, the appellant is sentenced to imprisonment for seven years with a fine
of Rs. 10,000/-.
47. The conviction and order on sentence of the appellant-convict under
Section 201 IPC is confirmed and he shall be entitled to the benefit under
Section 428 Cr.P.C. The impugned judgment of the Trial Court and order
on sentence stand modified accordingly.
48. The bail bond of the appellant-convict is cancelled and he is directed
to surrender within four weeks before the concerned Jail Superintendent.
49. Trial court record be sent back.
50. Copy of the judgment be sent to the concerned Jail Superintendent.
MANMOHAN, J
SANGITA DHINGRA SEHGAL, J
FEBRUARY 28, 2020
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