Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 882/2016
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% Date of decision : 10 January, 2017
ROBIN TAMANG @ JO-JO ..... Appellant
Through: Mr. Chetan Lokur and Nitish
Chaudhary, Advs.
versus
STATE ..... Respondent
Through: Ms. Aashaa Tiwari, APP for
the State with Insp. Ramesh
Chand from PS Burari
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT (Oral)
GITA MITTAL, J.
1. By way of the instant appeal, the appellant assails his
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conviction by the judgment dated 26 July, 2016 for commission
of an offence under Section 302 of the Indian Penal Code, 1860
(‘IPC’ hereafter) with which he was charged in the case being SC
No. 27842/16 (Old No.86/15) arising out of FIR No.421/13 by
Police Station Burari.
2. Mr. Chetan Lokur, learned counsel appearing on behalf of
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the appellant has primarily assailed the impugned judgment on the
ground that the conviction of the appellant rests on the solitary eye
witness account of one Bikas Gurang who was examined as PW1.
Learned counsel would contend that the testimony of this witness
is unreliable and shaky and, therefore, the conviction based thereon
cannot be sustained.
3. It is further submitted that the testimony suffers from
improvements in material particulars as well as embellishments
which render the eye witness account given by him as unreliable.
It is submitted that given the nature of his testimony in court, the
learned trial judge should have insisted upon corroboration of the
evidence tendered by this witness.
4. The investigation into the case was set into motion based
upon telephonic information received by the Police Station Burari
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in the night intervening 14/15 October, 2013 at 0025 hours from
the Police Control Room to the effect that one person had been
stabbed in Gali No. 1, A-2 Block, West Sant Nagar and that
appropriate action be taken thereon. This information was
recorded by the duty officer HC Ram Phool (PW6) as DD No.10B
(Exh.PW6/A) and copy thereof was handed over to SI Devender
(PW18).
5. On receipt of the copy of DD no.10B (Exh.PW6/A), SI
Devender (PW18) accompanied by Ct. Hanuman proceeded to the
spot in front of House No.8, Gali No.1, A-2 Block, West Sant
Nagar, Burari and found blood lying scattered in the gali as well as
a bloodstained green shirt which was produced by Bikas Gurang
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(PW1) and blue coloured jeans. On enquiry, it was learnt from the
public persons present that one Neeraj had been stabbed by Robin
Tamang in a quarrel over a girl named Hira and a sim card and that
friends of the victim had rushed him to the Hindu Rao Hospital.
In the meantime, Inspector Sher Singh (PW20), SHO of
Police Station Burari also reached the spot while SI Devender
(PW18) also received information that the victim Neeraj as
declared having been brought dead in the Hindu Rao Hospital.
6. In the meantime, the eye witness Bikas Gurang (PW1), who
had taken the deceased Neeraj to the Hospital returned to the spot
and SI Devender (PW18) scribed his statement which is
Exh.PW1/A. This statement as noted by the learned trial judge in
para 2 of the impugned judgment reads as follows :
“2. As per statement of said complainant
Bikas Gurang, he is preparing and selling
Momos and about two days ago his sister in law
(Bhabhi), namely, Pinki had called him on phone
to her house No.8, Gali No.1, A-2 Block, West
Sant Nagar, Burari for doing the work of selling
Momos as the work load had increased due to
the festival of Dusshera and he was residing and
working with the said Pinki since then, said
Neeraj, who hailed from his village was also
residing with the said Pinki and was doing the
same work on 14.10.2013 at about 11.30 pm, he
along with Ram returned back to the house of
said Pinki after selling Momos at Jharoda, Delhi
and paid the amount of the sale to the said Pinki
and he came out and started wearing his shoes
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outside the door of the house and at that time
said Neeraj was talking to someone inside the
house on phone and in the meantime, one Robin,
who also hailed from his village, and related to
said Pinki being her brother in law, came in the
gali and started calling said Neeraj loudly. One
Amin Kheshtri @ Abhishek, who also came with
said Robin went inside the house of said Pinki
and that after repeated calls given by the said
Robin, Neeraj came out of the house and Robin
started quarrelling with him over some SIM card
and one girl Heera and suddenly gave knife
blows at the chest and hand of said Neeraj and
when he (the complainant) shouted, said Pinki,
Ram and Amin Kheshtri @ Abhishek also came
out of the house and on looking at all the said
persons, said Robin started rushing from there
with the knife and that he (the complainant)
chased said Robin upto some distance but came
back to help the said Neeraj, who was blood
soaked and was lying inconscious in the gali and
with the help of said Pinki and other persons, he
and said Ram removed the said Neeraj in an
auto to Hindu Rao Hospital, where doctor had
declared him as dead.”
7. SI Devender (PW18) made his endorsement on the statement
Exh.PW18/A and sent the rukka for getting the case registered
through Ct. Hanuman Yadav (PW16) as the statement disclosed
commission of an offence of murder.
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8. At the police station, HC Ram Phool (PW6) registered FIR
No.421/13 (Exh.PW6/C) through the computer operator vide DD
No.4A and also made an endorsement on the original rukka
(Exh.PW6/D). The computer generated copy of the FIR was sent
to Inspector Sher Singh (PW20) for further investigation through
Ct. Hanuman Yadav (PW16) vide DD no.5A (Exh.PW6/F). HC
Ram Phool (PW6) also issued and proved the requisite certificate
under Section 65B of the Evidence Act with regard to the computer
generated FIR Exh.PW6/E.
9. The copy of the FIR was delivered to Inspector Sher Singh at
the spot by Ct. Hanuman Yadav (PW20).
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10. Copy of the FIR No. 421/13 was also sent on 15 October,
2013 at 0340 hours through a special messenger Ct. Dharampal on
motorcycle to the concerned Magistrate as well as senior officers
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which information was logged as DD no.5A on 15 October, 2013
itself (Exh.PW6/F) in compliance with the requirements of sub-
section 2 of Section 157 of the CrPC.
11. During the course of investigation by Inspector Sher Singh
(PW20), the police vide seizure memo Exh.PW1/B seized
bloodstained earth control at the spot; bloodstained tiles; one green
colour bloodstained shirt and a blue coloured jeans. These articles
were converted into parcels and sealed with the seal of ‘SS’. The
sample seal was handed over to SI Devender (PW18) after use.
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12. On 15 October, 2013, Inspector Sher Singh also seized an
XTEL mobile phone vide seizure memo Exh.PW18/B bearing
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model no. X909 and IMEI no. 359987045359507. On 16
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October, 2013, Inspector Sher Singh (PW20) vide seizure memo
Exh.PW1/C seized one Samsung mobile from Bikas Gurang (PW1)
which belonged to the deceased Neeraj. The sealed articles were
duly deposited with HC Devender (PW11) who was working as the
MHC(M), case property in the police station Burari at the relevant
time who made the entry no.2298/13 in Register No.19 in the
original malkhana register no.19 (Exh.PW11/A).
13. The mobile phone which was seized vide seizure memo
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Exh.PW1/C on 16 October, 2013 was also deposited in the
malkhana vide entry no.2301/13 (Exh.PW11/B).
14. Inspector Sher Singh (PW20) deposited two sealed parcels
alongwith the sample seal of the articles seized from the Hospital
which were deposited in the malkhana vide entry at serial no.2308
in register no.19 (Exh.PW11/C).
15. The investigating officer Inspector Sher Singh (PW20)
prepared a rough site plan Exh.PW20/A on the pointing out of the
complainant Bikas Gurang.
16. The crime spot was also got inspected by the mobile crime
team which included Ct. Irshad Ahmed (PW10) and SI Pradeep
Kumar (PW14). Ct. Irshad Ahmed had taken 12 photographs of
the spot which were proved on record as Exh.PW10/A-1 to
Exh.PW10/A-12. Their corresponding negatives were proved on
record as Exh.PW10/B-1 to Exh.PW10/B-12.
17. SI Pradeep Kumar (PW14) has corroborated the testimony of
SI Devender Dahiya (PW18) with regard to the position which was
subsisting at the spot with regard to the bloodstains on the walls of
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the houses; bloodstains in front of house no. 18 and the
bloodstained green coloured shirt. This witness also proved the
report of the crime team on record as Exh.PW14/A and had
instructed Ct. Irshad Ahmed (PW10) to take the photographs.
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18. The appellant could be arrested in the case only on 19
October, 2013 by HC Chanderpal (PW13) when a search was
effected for him in Sector 18, Gurgaon, Haryana and he was
brought to the Police Station Burari. The custody of the appellant
was handed over to Inspector Sher Singh who interrogated the
appellant and arrested him vide arrest memo Exh.PW13/A while
his personal search was effected vide Exh.PW13/B.
19. It appears that during interrogation, the appellant made a
disclosure statement Exh.PW13/C. Pursuant to the disclosure
statement, the bloodstained clothes of accused which he was
wearing at the time of crime which included a multicoloured check
shirt bearing the label “ CR-Y 100% Cotton Made in India ” and
jeans bearing the label “ Fashion Jeans ” which had been recently
washed and were hanging for drying on the first floor of his house
were got recovered from the house near Amit Theatre and seized
vide memo Exh.PW13/D.
20. The appellant was subjected to medical examination in
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Aruna Asaf Ali Hospital on 20 October, 2013. The appellant
thereafter led the police party, which included HC Chanderpal and
Insp. Sher Singh, to Gurgaon.
21. So far as deceased Neeraj is concerned, SI Devender Dahiya
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(PW18) visited Hindu Rao Hospital on the night of 15 October,
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2013. We find that the prosecution has proved the MLC No.
8046/13 of the deceased Neeraj Pradhan, on record as Exh.PW9/A.
The MLC notes that the person was brought to the hospital at 12.50
a.m. in an unconscious condition with “ alleged h/o physical
assault ” in which the doctor had declared the patient dead at 12.52
am. The MLC further notes that the person was brought to the
hospital at 12.50 a.m. in an unconscious condition when his pupils
were not reactive to light and his body was sent to the mortuary.
22. A request was made by Inspector Sher Singh vide his letter
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dated 17 October, 2013 (Exh.PW20/B) to the Head of the
Department of Forensic Medicine, Hindu Rao Hospital for
performing the autopsy on the body of deceased Neeraj and to get
an opinion with regard to cause of death. Pursuant thereto, an
autopsy was conducted on the body of Neeraj Pradhan by Dr. M.K.
Panigrahi of the Department of Forensic Medicine, Hindu Rao
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Hospital on 17 October, 2013 at 12.30 p.m. The report of the post
mortem examination (Exh.PW17/A) has noted the following
injuries on the body of the deceased:
“ 5. External Injuries
(1) A stab wound of size 2.8 cm x 1 cm x
chest cavity deep, obliquely placed on the
anterior aspect of the left side of the chest wall.
The lower end of the wound is acute angled and
is laterally placed and the upper end is rounded
and medially placed. The wound is placed just
below the medial end of the Lt. clavicle about 3
cm away from the midline from the sterna notch,
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‘14’ cm above the Lt. Nipple, 12 cm medial to
the Lt. anterior axillary fold and 133 cm above
the heel of left foot. The margins of the wound
are clean cut.
(2) A stab wound of size 2 cm x 1 cm x
muscle deep, obliquely placed on the Lateral
Aspect of the lower part of the Lt. Arm. The
lower end of the wound of acute angled and the
upper end appears rounded. The wound is
placed about 5 cm above the lateral apicandyle
of the humerous bone and about 21 cm below the
tip of the Lt. shoulder. The margins of the
wound are clean cut. The depth of the wound is
about 2 cm.
(3) A stab wound of size 2 cm x 1 cm x
muscle deep, Horizontally placed on the back of
the lower part of the Lt. Arm just above the Lt.
elbow joint. The wound is placed about 2 cm
above the (illegible) process of ulna bone and 25
cm below the top of the Lt. shoulder. The
margins of the wound are clear cut. The depth
of the wound measures 2 cm.
(4) Incised wound of size 6 cm x 1.5 cm x
muscle deep obliquely placed on the anterior
medial aspect of the upper part of the Lt.
forearm just below the Lt. elbow joint. The
margins of the wound are clear cut. The
muscles and tissues and blood vessels
underneath are clean cut. The wound is placed
about 5 cm below the medial epicandyle of the
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Lt. humerous bone and 18 cm above the stylid
process of the lower end of the ulna.
(5) Incised wound of size 1 cm long,
superficial and is placed horizontally as the
palmar aspect of the Lt. hand 1.5 cm below the
matacarpophalangeal joint of the Lt. index
finger. Margins of the wound are clear cut.
(6) Incised wound of size 1 cm long,
superficial in nature is placed horizontally on
the palmar aspect of the base of of the distal
phalanx of the Lt. middle finger.”
23. The post-mortem doctor has noted the track of the external
injury no.1 which was as follows:
“Track of Ext. Injury No.- I :-
A track has been established from the external
injury No.(1) which pierces through the
subertaneous tissues underneath and cut the
medial end of cartiligenous part of the left
clavicle 0.5 cm lateral to the Lt. Sterno
clavicular joint, the intercostal muscles below
and partially cut the superior border of the
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cartiligenous part of the 2 rib (Lt) about 1.5 cm
lateral to the sterno costal joint, which measures
about 3 cm long. Then it completely cut the Lt.
Subclavian artery and other vessels nearby and
underneath the chest wall and then pierces
through the cervical parietal pleural (Lt.) on its
anterior aspect and later into the Lt. pleural
cavity and ends in the Lt. side. A superior
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medi......after piercing. The media...pleura. The
track measures about ‘5’ cm long. The
directions of the track is downwards, before
backwards and or from lateral to medial. The
Lt. pleural cavity is filled with about 12 litre of
blood mixed with clots.”
24. As per the opinion of Dr. M.K. Panigrahi, the cause of death
of the deceased was due to “ haemorrhage and shock consequent to
the injuries. All the injuries mentioned above” were opined to be
“are ante-mortem in nature”.
25. The doctor had also opined the time since death at the time
of the post mortem examination as being about 60 hours to 61
hours approximately.
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26. On 7 January, 2014, Inspector Sher Singh (PW20) directed
HC Ram Phool (PW8), the then MHC(M) at the Police Station
Burari to hand over the sealed exhibits and sample seals to Ct.
Krishan Kumar vide RC No. 1/21/14 in sealed condition for
depositing the same at the Forensic Science Laboratory, Rohini,
Delhi. These articles were duly deposited at the Laboratory against
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the receipt dated 7 January, 2014 (Exh.PW11/G).
27. The Forensic Science Laboratory, Rohini duly conducted the
forensic examination on the articles received in nine parcels in
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sealed condition and gave a report dated 30 May, 2014
(Exh.PW20/D). We extract hereunder the description of the
articles in nine parcels forwarded by the Police Station Burari in
sealed condition which were examined by the Laboratory:
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DESCRIPTION OF ARTICLES CONTAINED IN PARCEL
Parcel ‘1’ : One sealed paper envelope sealed with teh seal of
“FM HRH” containing exhibit ‘1a’, ‘1b’, ‘1c’,
‘1d’ stated to be of deceased.
Exhibit
‘1a’
: One dirty knicker having dark brown stains at
places.
Exhibit
‘1b’
: One dirty T-shirt having dark brown stains at
places.
Exhibit ‘1c’ : One dirty baniyan having dark brown stains at
places.
Exhibit
‘1d’
: One dirty underwear.
Parcel ‘2’ : One sealed paper envelope sealed with the seal of
“FM HRH” containing exhibit ‘2’ stated to be of
deceased.
Exhibit 2 : Blood stained gauzed cloth piece described as
“Blood sample”.
Parcel ‘3’ : One sealed plastic dibbi sealed with the seal of
“SS” containing exhibits ‘3’ stated to be
recovered from place of occurrence.
Exhibit 3 : Lumps of earth along with loose earth described
as “Blood stained earth”.
Parcel ‘4’ : One sealed plastic dibbi sealed with the seal of
“SS” containing exhibits ‘4’ stated to be
recovered from place of occurrence.
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Exhibit 4 : Lumps of earth along with loose earth described
as “Earth control”.
Parcel ‘5’ : One sealed plastic dibbi sealed with the seal of
“SS” containing exhibits ‘5’ stated to be
recovered from place of occurrence.
Exhibit 5 : Two pieces of stone having dark brown stain
described as “Blood stained tile”.
Parcel ‘6’ : One sealed plastic dibbi sealed with the seal of
“SS” containing exhibits ‘6’ stated to be
recovered from place of occurrence.
Exhibit ‘6’ : One piece of stone described as “Control tile”.
Parcel ‘7’ : One sealed cloth parcel sealed with the seal of
“SS” containing exhibits ‘7’ stated to be
recovered from place of occurrence.
Exhibit 7 : One dirty shirt having dark brown stains at places
Parcel ‘8’ : One sealed cloth parcel sealed with the seal of
“SS” containing exhibits ‘8’ stated to be
recovered from place of occurrence
Exhibit 8 : One dirty jeans pant having darker stains
Parcel ‘9’ : One sealed cloth parcel sealed with the seal of
“SS” containing exhibits ‘9a’, ‘9b’ stated to be of
accused
Exhibit 9a : One dirty jeans pant
Exhibit 9b : One dirty shirt
28. A comparison of the seizure memos and the above exhibits
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marks given by the Laboratory would show that Exhibit 1a, 1b and
1c are the clothes of the deceased which were seized by the doctor
who conducted the post mortem of the deceased. The blood
sample of the deceased collected on the gauze, cloth piece was
marked Exhibit 2 by the Forensic Science Laboratory. Exhibits 3,
4 and 5 were the bloodstained samples of earth and stone which
were seized by the investigating officer while conducting the
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investigation at the spot on 15 October, 2013. Exhibits 7 and 8
were the bloodstained shirt and the jeans which had been worn by
the complainant at the time of the incident and that he had rushed
the deceased to Hindu Rao Hospital. Exhibits 9a and 9b were the
jeans and shirt which were recovered at the instance of the accused
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pursuant to disclosure statement on 19 October, 2013.
29. After examination the Forensic Science Laboratory
submitted the following report so far as the presence of blood on
the seized articles is concerned :
“Results of analysis
1. Blood was detected on exhibit ‘1a’, ‘1b’, ‘1c’, ‘1d’, ‘2’,
‘3’, ‘5’, ‘7’, ‘8’ & ‘9a’
2. Blood could not be detected on exhibit ‘4’, ‘6’, ‘9b’
3. Report of serological analysis in original is attached
herewith
30. The articles on which blood was found were thereafter
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subjected to examination using serological techniques. The result
of this examination as reported by the Laboratory in the report
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dated 30 May, 2014 is extracted in extenso below:
Exhibits Species
of
Origin
ABO
Grouping/Remarks
‘1a’ knicker Human Group ‘A’
‘1b’ T-shirt Human Group ‘A’
‘1c’ Baniyan Human Group ‘A’
‘1d’ Underwear Human No reaction
2 Bloodstained gauze Human Group ‘A’
3 bloodstained earth Human No reaction
5 bloodstained tile Human Group ‘A’
7 shirt Human Group ‘A’
8 pant Human Group ‘A’
9a Jeans pant Human Inconclusive
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31. On completion of the investigation, the prosecution filed a
charge sheet under Section 173 CrPC before the court of the
learned Magistrate. The Magistrate committed the case for trial to
the Court of Sessions in accordance with law and the matter was
placed before the learned Additional Sessions Judge for further
proceedings.
32. After consideration of the entirety of the matter placed by
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the police on record, by an order dated 1 April, 2014, the learned
Additional Sessions Judge found a prima facie case for commission
of an offence under Section 302 of the IPC against the appellant
and charged him accordingly. The appellant pleaded not guilty and
claimed trial.
33. During trial, the prosecution examined 20 witnesses in
support of its case. An opportunity was given to the appellant to
explain the incriminating circumstances against him under Section
313 of the CrPC. The appellant led no evidence in his defence.
34. The matter was considered at length by the learned
Additional Sessions Judge, thereafter by the impugned judgment
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dated 26 July, 2016 as above, the appellant was found guilty of
commission of the offence with which he was charged and by an
order on sentence of even date sentenced him to life imprisonment
and fine of ` 25,000/- and in default of payment of fine, he was
further directed to undergo simple imprisonment for a period of
two years. The benefit of Section 428 CrPC stood allowed to the
appellant.
Aggrieved thereby, the present appeal has been filed.
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35. We have heard Mr. Chetan Lokur, learned amicus curiae as
well as Ms. Aashaa Tiwari, learned APP for the State who have
carefully taken us through the record of the case.
36. As noted hereinabove, the primary ground of challenge rests
on the plea that the solitary testimony of Bikas Gurang (PW1)
ought not to be accepted and that the conviction for such a serious
offence cannot be premised on the solitary evidence of this witness.
37. We have noted above the statement of Bikas Gurang which
formed the basis of the registration of the FIR No. 421/2013. This
statement was recorded barely a couple of hours after the infliction
of the fatal injuries upon the deceased Neeraj Pradhan by multiple
blows of a knife. We find that Bikas Gurang has given a graphic
account of the manner in which the incident occurred and has
described the presence of the appellant at the spot; his having
called deceased Neeraj and inflicted the multiple injuries with the
knife which was in his possession. In Exh.PW1/A itself, Bikas
Gurang has described the manner in which the appellant had
attempted to flee and how he had unsuccessfully tried to chase him.
38. Bikas Gurang (PW1) has appeared and has been examined as
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a witness in court on 6 August, 2014. In the witness box, Bikas
Gurang (PW1) has given a testimony which is identical to his
narration of the events as disclosed in Exh.PW1/A.
39. While under cross examination, Bikas Gurang (PW1), has
mentioned that apart from Ram, he was accompanied by two
persons of the locality when they had removed the deceased to the
hospital. It is submitted by Mr. Lokur that this is a contradiction
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with the evidence on record.
40. Mr. Chetan Lokur, learned amicus curiae for the appellant
has pointed out that Bikas Gurang has also made a reference to one
Bhopal as having chased the appellant while he was fleeing with
the knife after the incident. An objection is taken that Bhopal was
not produced in the witness box.
41. At best, the reference to two additional persons having
accompanied the witness to the hospital and one having also chased
the appellant while he was fleeing are the best embellishments
which do not make any difference to the substantive testimony of
the witness so far as manner in which the events unfolded is
concerned. In our view, these two additions in the statement in
court do not impact the clear and graphic account given by the
witness with regard to the manner in which the appellant had come
to the spot, called out to the deceased, then entered into a quarrel
with him and inflicted the fatal injuries on his person.
42. In the present case, Bikas Gurung (PW1) is a reliable witness
who has given a credible account of the events of the fateful day.
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We find that the incident has occurred in the early hours of 15
October, 2013. There is nothing on record which would establish
that any other eye witness was present at the time when the
incident had occurred.
43. The report of the Forensic Science Laboratory was per se
admissible in evidence under Section 293 of the CrPC and has been
produced in evidence by the investigating officer Inspector Sher
Singh (PW20). The forensic evidence establishes that the deceased
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was having blood group A which was identified on not only his
clothes but also on the clothes of the complainant corroborating his
testimony that he had helped the deceased Neeraj Pradhan and
rushed him to the hospital.
44. So far as the clothes of the accused are concerned, the
Laboratory has identified human blood on the jeans which had
been worn by the accused. The presence of human blood is
sufficient corroboration of the eye witness account in the case with
regard to the involvement of the appellant in the commission of the
offence.
45. The oral testimony of PW1 is corroborated by the forensic
evidence and medical evidence as recorded above which
establishes the injuries on the body of the deceased.
46. The inability of the investigating officer to trace out the
weapon of offence would not impact the result of the case given the
clear testimony of the prosecution witness with regard to the
culpability of the appellant for commission of the murder.
47. It is trite that if the testimony of a solitary eye witness is
found credible and worthy of proof, it is open to the court to
premise the conviction for the commission of the offence with
which the person has been charged. Consequently, the finding of
the trial judge that the appellant was guilty of commission of the
offence with which he was charged cannot be faulted on the ground
that the prosecution had examined only Bikas Gurang (PW1) as the
solitary eye witness to the occurrence.
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We appreciate the assistance rendered to this court by Mr.
Chetan Lokur, learned amicus curiae as well as Ms. Aashaa Tiwari,
learned APP for the State.
48. For all the foregoing reasons, the appellant is unable to assail
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the impugned judgment dated 26 July, 2016 on any legally
tenable ground.
We find no merit in this appeal which is hereby dismissed.
Let a copy of this judgment be sent to the appellant through
Superintendent, Tihar Jail, Delhi.
GITA MITTAL, J
ANU MALHOTRA, J
JANUARY 10, 2017/ kr
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