Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Reserved on: 17 August, 2016
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Pronounced on:15 September, 2016
+ CRL.A. 250/2000
ANIL KUMAR @ MITHU & ORS. ..... Appellants
Through: Mr. K.T.S. Tulsi, Senior Advocate with
Mr. Pawan Sankhla, Adv.,
Mr. Padam Sankhla, Adv.,
Mr. Lalit Sankhla, Adv. &
Mr. Raj Kamal, Adv.
versus
STATE ..... Respondent
Through: Mr. Varun Goswami, APP for the State.
+ CRL.A. 394/2000
DINESH KUMAR ..... Appellant
Through: Mr. Rajpal Singh, Adv.
versus
STATE ..... Respondent
Through: Mr. Varun Goswami, APP for the State.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K. GAUBA, J:
1. The appellants with one another (Satish Chander @ Chandra) were
sent up for trial before the court of Sessions on the basis of report under
Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C.) submitted on
13.11.1990 upon conclusion of investigation into first information report
(FIR) No.222/1990 of police Station Dabri (the police station) for offences
Crl. A. No.250/2000 & 394/2000 Page 1 of 28
punishable under Sections 302/324 read with Section 34 of Indian Penal
Code, 1860 (IPC). Upon consideration of the evidence gathered during
investigation by the police, as set out in the said police report (charge sheet),
the learned additional sessions judge in seisin of the sessions case
(No.30/1992) framed charge against all the four said persons for offences
under Sections 302 read with Section 34 IPC.
2. Midway the trial, the fourth accused (Satish Chander @ Chandra)
jumped bail and inspite of the issuance of duress process against him, his
presence could not be secured. He was declared a proclaimed offender by
the trial court vide order dated 27.02.1999. The trial continued against the
remaining three (appellants before this Court) and culminated in judgment
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on 2 March, 2000 whereby all of them i.e. Anil Kumar @ Mithu (A-1),
Sunil Kumar @ Dudha (A-2) and Dinesh Kumar Sharma (A-3) were held
guilty and convicted, as charged, for offence under Section
302 read with 34 IPC whilst appellant Anil Kumar @ Mithu (A-1) was also
held guilty, again as charged, for offence under Section 324 IPC. By order
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passed by the trial court on 9 March, 2000, rigorous imprisonment for life
with fine of ₹ 1,000/- was awarded for the offence of murder under Section
302/34 IPC to each of the three appellants. In addition, Anil Kumar @
Mithu (A-1) was awarded rigorous imprisonment for one year for offence
under Section 324 IPC, it having been directed to be run concurrently.
3. By their joint appeal (Crl. Appeal No.250/2000) Anil Kumar @ Mithu
(A-1) and Sunil Kumar @ Dudha (A-2) and by his separate appeal
(Crl.Appeal No. 394/2000) Dinesh Kumar Sharma (A-3) assailed the
judgment and order on sentence.
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4. Some facts which are not disputed or beyond the pale of any
controversy or doubt may be taken note of at the outset.
5. The charge for the offence of murder arises out of death of Ravi Kant
son of Chandra Kant (PW-8), and husband of Santosh (PW-6), then resident
of house No. K-643, Gali No. 9, Indira Park, Palam Colony, New Delhi. He
was about 35 years old at the relevant point of time (per death certificate Ex.
PW-11/C), in government service, he being the eldest among five siblings,
his brothers including Uma Kant (PW-3) and Shashi Kant. It appears Uma
Kant (PW-3) and Shashi Kant were earning their livelihood from a small
shop in the name of Shashi Arts in the same locality. Though in the FIR,
registered on the basis of statement (Ex.PW-2/A) of Shakuntala (PW-2), as
noted in deposition of the said first informant (PW-2), she is described as
wife of the brother of the deceased, the evidence of Uma Kant (PW-3)
would clarify that her husband Tej Ram is cousin brother of the deceased.
Tej Ram with his family including his wife Shakuntla (PW-2), first
informant, would live separately in their house bearing No. RZ4/C, Gali
No.2 in the same locality (Indira Park).
6. Appellant Anil Kumar @ Mithu (A-1) and Sunil Kumar @ Dudha (A-
2) are real brothers (sons of Chattar Singh) and residents of a house
separated by just one another from that of the deceased and his family
{including brother (PW-3), wife (PW-6) and father (PW-8)} on the same
street (Gali No.9). It was not disputed at any stage during the trial, nor has
been raised as a bone of contention before us during the hearing on the
appeals that the said witnesses being close neighbours, have been acquainted
with the said appellants as indeed with appellant Dinesh Kumar Sharma (A-
3) by faces and names from before. In fact, the evidence about past enmity
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(it having been presented as the root cause of the subject incident) has gone
unchallenged and unimpeached, it also being reflective of ability of the
witnesses to indentify the appellants.
7. Whilst on the subject, we may note that PW-3, PW-6 and PW-8
testified at length, about the previous incidents of quarrel involving
members of the family of the deceased, on one hand, and that of A-1 and A-
2, on the other, primarily showing Indrawati, mother of A-1 and A-2, being
the one who would be the cause for trouble for various reasons including
blockage of the drainage, throwing of banana peels and brick-bats, calling
names etc, at times leading to reports being lodged with the police about
such incidents (mark PW-19/A to 19/F) which were brought in during the
testimony of Inspector Kapur Singh (PW-19), Investigating Officer (IO) and
have been referred to not only by the prosecution as the proof of motive for
assault on the part of the appellants but also by the learned counsel
representing the appellants as reflective of possibility of false implication.
The evidence of PW-3, PW-6 and PW-8 with regard to the past quarrels is
corroborated by the unimpeached testimony of R.C. Dogra (PW-7), the
president of local resident’s welfare association. He spoke particularly of a
quarrel that had occurred 4-5 days prior to the subject incident where both
the sides had been called to the police station and a compromise had been
brokered.
8. That Ravi Kant suffered two deep set stab injuries at or about 7.45
p.m. on 13.08.1990 at an open place, opposite Gali No. 7 of Indira Park,
close to the railway lines running parallel to the locality, and died as a
consequence thereof on the same night has been established by the
prosecution through evidence which is beyond reproach. Sometime around
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8.15 p.m. a public person introducing himself as Sant Nath made a telephone
call to the police control room (PCR) about an individual having been
stabbed in the area of Gali No.8, Indira Park, Palam Colony. This
information was conveyed by lady constable Babli of PCR to the police
station at 8.15 p.m., whereupon it was logged as DD entry No. 17B (Ex.PW-
4/D) by ASI Chander Pal (PW-4) who was then working as the duty officer.
The matter was entrusted for inquiry to SI Ajaib Singh (PW-17) who, as per
the said DD entry, set out accompanied by Constable Omvir Singh (PW-16)
for the place of incident.
9. The victim Ravi Kant, in the meantime, had been taken by his father
(PW-8), statedly also accompanied by his brother Shashi Kant (per PW-6),
to Deen Dayal Upadhyay Hospital where, in the casualty, his arrival and
medical status were recorded at 8.30 p.m. on 13.08.1990 by Dr. Reena Garg
(PW-11), in the medico legal certificate (MLC). The MLC (Ex.PW-11/B)
proved by the said medical officer indicates that though Ravi Kant who had
come with history of stab injuries was fully conscious but his pulse was very
feeble and he had been found with two stab wounds, one on the right side
back and the other on the left side buttock. Having regard to his then
medical condition, he was admitted to emergency ward at 9.00 p.m. by Dr.
Lokesh Gupta as per his endorsement on the same document. The arrival of
Ravi Kant in the hospital accompanied by his father and he having been
examined against MLC was duly conveyed to the police station by the duty
constable P.P. Verghese (PW-14) and logged there vide DD entry No. 18A
(Ex.PW-4/C) at 8.30 p.m.
10. The records of hospital and police including the death summary
(Ex.PW-19/D), death report (Ex.PW-19/E), inquest report (Ex.PW-19/C)
Crl. A. No.250/2000 & 394/2000 Page 5 of 28
and the testimony of PW-11 reveal that Ravi Kant died during treatment in
the hospital at 03.30 hours on 14.08.1990. We note here itself that Ravi
Kant was never in a position to make any statement to the police before his
death. As mentioned earlier, he was brought to the hospital in a critical
state, his vitals showing feeble pulse. When PW-17 had arrived in the
hospital, he moved an application (Ex.PW-11/E) before Dr. Neeraj Khanna
under whose care the victim was then being treated. The latter confirmed by
his endorsement on the said application that Ravi Kant was unfit for
statement, mentioning the time as 9.20 p.m. The medical record reveals his
condition only deteriorated thereafter till death.
11. The fact that Ravi Kant died as a result of the two stab injuries and
that his death was a case of culpable homicide has been proved by the
prosecution beyond the pale of any doubt, inter alia, on the basis of post
mortem examination report (Ex.PW-9/A) which had been prepared by Dr.
L.K. Baruah (PW-9) on the basis of autopsy conducted in the civil hospital,
Delhi in the afternoon of 14.08.1990, on the application (Ex.PW-19/B) of
the IO. PW-9 affirmed on oath that the autopsy had revealed that the
deceased had suffered two incised wounds which he described as under:-
“ One incised wound was seen on the back side of the abdomen in
the lumber area and the size of the injury was 3 cm x 0.5 cm x ? The
injury was placed closed to the right side para vertebral region and
14 cm. above the mid gluteal fold. On examination of the injury both
the angles of the wound were seen to be acutely cut. There was no
signs of any abrasions near the wound. The size and shape of the
injury No.1 is given in the encircled portion at point A in (my) report
Ex.PW9/A.
One incised wound was seen on the left buttock closed to the
perinlalfole placed obliquely and size of the injury was 3 cm x 0.5
cm x ? Both the angles of the wound were seen to be acutely cut”.
Crl. A. No.250/2000 & 394/2000 Page 6 of 28
12. As per the testimony of PW-9, the internal examination of the dead
body had revealed that the first injury noted above had entered:-
“the abdomen cavity from back of the right side. During its
course it had cut the inferior vena gava and then continued to
the hilar region of right kidney. The hilar region of the right
kidney showed one incised wound of size 1.5 cm and the depth
of about 2 cm. The renal blood vessel and other ureteric were
also seen to be cut. Right side repro peritoneal area and
structures all around the right kidney and some part of the left
kidney near the hilar region showed effusion of blood clot. The
total depth of injury No.1 from skin surface to the inner most
area of the hilar region of the kidney was about 10 cm”.
13. Similarly, on examination of injury No.2, PW-9 deposed:
“ it was seen to be continuing upwards and backwards and then
entered the pelvic cavity of the left side piercing the peritoneal
wall and had cut the blood vessels of the left pelvic area and
then it continued to the rectal lumen. The total depth of this
injury on the skin surface was about 12 cm. The pelvic cavity
contained about 500 ml. of liquid and clotted blood”.
14. In the opinion of the autopsy doctor, both the above-mentioned
injuries, ante mortem in nature, had been caused by sharp cutting weapon
and were individually sufficient to cause death in the ordinary course of
nature. The death had occurred due to haemorrhagic shock resulting from
the said injuries. Though it was suggested to him by the defence during
cross-examination that the deceased could have survived in case proper
medical aid had been provided at the earliest and further that death had
occurred due to excessive loss of blood, the autopsy doctor having denied
Crl. A. No.250/2000 & 394/2000 Page 7 of 28
these suggestions as incorrect, the defence did not press home any other
theory.
15. In the face of above material on record, there is no scope for doubt
being expressed as to the fact that the two stab wounds had been voluntarily
inflicted by the assailant(s) with a sharp edged cutting instrument having a
long blade, the two blows meant to cause deep cuts inside the body. The
nature of injuries noted by autopsy doctor by itself is sufficient to take us to
the conclusion that the injuries were intended and were inflicted with the
intention of causing death. That the injuries were sufficient, according to
the medical opinion, in the ordinary course of nature to cause death, only re-
inforces the conclusion that it was a case of culpable homicide within the
meaning of the expression defined in Section 299 IPC. We reserve our
comment, for later, on the issue as to whether or not this case of culpable
homicide amounted to murder since, for such purposes, we need to bear in
mind the ocular testimony as well.
16. The FIR (Ex.PW-4/B) was also registered in the police station at
10.30 p.m. on 13.08.1990, initially for investigation into offence under
Section 324/34 IPC (since Ravi Kant was still alive at that stage), on the
basis of Rukka (Ex. PW-4/A) sent by PW-17 referring to the version
(Ex.PW-2/A) attributed to Shakuntla (PW-2) and his own observations of
the scene. After getting the FIR registered, PW-17, the first investigation
officer (first IO), had prepared a site plan without scale (Ex.PW-17/A)
describing the lay out of the locality depicting the various streets
(particularly Gali Nos. 7, 8 and 9), the railway line running close by and the
place where Ravi Kant and PW-2 were assaulted. We must observe here
that though the prosecution also relied upon a site plan drawn to scale
Crl. A. No.250/2000 & 394/2000 Page 8 of 28
(Ex.PW-12/A) prepared during investigation by SI Madan Pal (PW-12),
both sides have chosen to refer extensively instead to the first (rough) site
plan (PW-17/A) since it is more descriptive and clear.
17. Be that as it may, the first IO in the course of his testimony also
proved steps taken in initial investigation by him including by arranging a
photographer Bishamber Singh (PW-5) and collection of evidence from the
scene of crime including by taking up blood–stained soil (vide Ex.PW-8/B).
The photographs (Ex.PW-5/A1 to 6) prepared by PW-5 with the help of
negatives (Ex.PW-5/B1 to B6) exposed by him at the place in question, the
observations in the rough site plan (Ex.PW-17/A) and the oral testimony of
the first IO, as indeed of material witnesses including Chander Kant (PW-8),
who had accompanied the victim to the hospital, conjointly prove and leave
no scope for any dispute, as to the fact that the fatal assault on the person of
Ravi Kant was staged at the corner of Gali No.7 close to the railway lines (at
point A in the site plan Ex.PW-17/A) in the locality of Indira Park on
13.08.1990. We may mention here itself that though the incident occurred at
the fag end of the second week of August when 7.45 p.m. would generally
be the time of twilight, from the testimonies of the witnesses of the scene,
particularly the first informant (PW-2), and wife of the deceased (PW-6),
who have so admitted, we find that it had gone dark by the time the fatal
assault took place.
18. Appellant Anil Kumar @ Mithu (A-1) was also charged, and has
been convicted, additionally for the offence punishable under Section 324
IPC for having voluntarily caused hurt on the person of Shakuntla (PW-2)
with a knife. This injury was mentioned in the version (Ex.PW-2/A)
attributed to Shakuntala (PW-2), it forming part of the contents of the FIR
Crl. A. No.250/2000 & 394/2000 Page 9 of 28
(Ex.PW-4/B), that she (PW-2) had also suffered injuries around the same
time on the said date, the same having been inflicted voluntarily by an
assailant and affirmed on oath not only by her (PW-2) but also corroborated
by her MLC (Ex.PW-11/D) which had been prepared by Dr. Neeraj Khanna,
a medical officer on duty in the casualty of Deen Dayal Hospital working
alongside Dr. Reena Garg (PW-11). Dr. Khanna had given up the job in the
hospital by the time his turn to depose at the trial of the case came. Due to
his non-availability, the prosecution called upon Dr. Reena Garg (PW-11) to
prove the MLC. PW-11 proved the document (MLC) in the handwriting of
Dr. Khanna, she being acquainted with the same, both having worked
together. Her evidence in this regard has remained unchallenged. The MLC
of Shakuntala (Ex.PW-11/D) shows that she had come to the hospital at 9.30
p.m. on 13.08.1990 brought by the police, one hour after the victim had been
examined by MLC (Ex.PW-11/B). The injury suffered by Shakuntala is
shown by her MLC as stab wound on left side of the forearm. Though it
was suggested to PW-3 during her cross-examination that the injury suffered
by her was self-inflicted, she having denied the same, no such questions
having been raised with reference to her MLC during the testimony of PW-
11, and there being no other good material supporting such possibility, we
must accept the prosecution evidence to the effect that Shakuntala was also
wounded with a sharp-edged weapon around the same time as Ravi Kant –
her injury, however, being simple, rather superficial.
19. The prosecution case about the complicity of the three appellants in
the fatal assault on the person of Ravi Kant and for the injuries inflicted on
the person of Shakuntala (PW-2) rests on the ocular testimonies of
Shakuntala (PW-2), Santosh (PW-6) and Chander Kant (PW-8). As per the
Crl. A. No.250/2000 & 394/2000 Page 10 of 28
prosecution version, the appellants had picked up quarrel with Uma Kant
(PW-3), at about 7.30 p.m. on 13.08.1990 giving him beatings in Gali No. 8,
Indira Park. PW-3 had somehow escaped and come home. PW-2 is stated
to have come to the house where the deceased was living for inquiring about
the welfare in the wake of news about the above said incident. When she
was returning to her house in Gali No. 2, accompanied by PW-6, at about
7.45 p.m. they are stated to have seen the three appellants, aided and assisted
by the proclaimed offender (Satish Chander @ Chandra), holding up Ravi
Kant who was on his way to home, near Gali No.7 and inflicting stab
wounds on his person. Per the version of eye-witnesses quoted in the
charge-sheet, Anil Kumar @ Mithu (A-1) had caught hold of Ravi Kant
from behind and Sunil Kumar @ Dudha (A-2) with Satish Chander @
Chandra proclaimed offender had caught hold of his arms while Sunil
Kumar @ Dudha (A-2) had inflicted two knife blows, one on his back and
the other on his hip. The prosecution case based on the version in the FIR
and on the statements of witnesses under Section 161 Cr.P.C. on the above-
mentioned lines was that when she Shakuntala (PW-2) had intervened and
had tried to come to the rescue of Ravi Kant, Anil Kumar @ Mithu (A-1),
also holding a knife, had inflicted bleeding injury on her left forearm (near
wrist). PW-8, father of victim Ravi Kant was stated in the prosecution case
to be also a witness to this sequence, he being present at the corner of Gali
No. 7, the assault occurring very close to his position.
20. PW-2, the first informant, was declared hostile as even in the opening
part of her examination-in-chief she denied that any injury had been caused
to Ravi Kant in her presence or to her by the persons facing the trial. She
was cross-examined by the Additional Public Prosecutor and confronted
Crl. A. No.250/2000 & 394/2000 Page 11 of 28
with her version in the rukka (Ex.PW-2/A) whereupon she affirmed the
prosecution story about injuries suffered by Ravi Kant and herself to some
extent but, generally, being reluctant to confirm the role and complicity of
the appellants. PW-6 and 8, on the other hand, also presented as eye
witnesses to the occurrence, deposed affirming the prosecution case to the
hilt. The learned trial court accepted their evidence, drawing corroboration
from some parts of the testimony of PW-2, and, by the impugned judgment,
returned findings of guilty.
21. According to the prosecution evidence in the wake of death of Ravi
Kant in the wee hours of 14.08.1990 in the hospital, the case was converted
into one for investigation into offence under Section 302 IPC. Thus, the
investigation was taken over by Inspector Kapur Singh (PW-19), then posted
as station house officer (SHO) in the police station. Per the testimony of
PW-19, he had carried out raids at the houses of the accused persons (the
appellants and the proclaimed offender) but they, being not available, could
not be arrested. It is on 20.08.1990 that appellant Anil Kumar @ Mithu (A-
1) was arrested by him after personal search (vide Ex.PW-8/C). On the same
date, per his testimony, he had arrested appellants Dinesh Kumar Sharma
(A-3) and Satish Chander @ Chandra (proclaimed offender) after their
personal search (vide Ex.PW-8/D and Ex.PW-8/E respectively). According
to the evidence, appellant Sunil Kumar @ Dudha (A-2) remained
unavailable till information was received on 1.9.1990 about his arrest in FIR
No. 338/1990 under Section 25 of Arms Act of police station Nangloi.
Thus, on the request of PW-19, A-2 was produced before the court of
magistrate and was formally arrested for purposes of this case on
03.09.1990.
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22. As per the evidence of PW-19, the final investigating officer, after his
arrest, appellant Anil Kumar @ Mithu (A-1) had made a disclosure
statement (Ex.PW-8/F) and had led to recovery of knife (Ex.P-1) from its
place of concealment at the southern end of Gali No.7 in Indira Park, the
knife having been seized after its sketch (Ex.PW-2/G) had been prepared
and it had been properly sealed as per memo (Ex.PW-2/F), in the presence
of PW-2, PW-8 and PW-17. The evidence adduced at trial further reveals
that the prosecution relied on disclosure (Ex.PW-8/L) statedly made by
Sunil Kumar @ Dudha (A-2) after his formal arrest on 03.09.1990, inter
alia, about the knife used in the fatal assault on the person of Ravi Kant but
the same having not led to any recovery.
23. We may note here that during the testimony of autopsy doctor (PW-
9), the learned Additional Public Prosecutor, showed the knife (Ex.P-1),
statedly recovered at the instance of Anil Kumar @ Mithu (A-1), to
ascertain if it could have been the weapon of offence, used for assault on the
deceased Ravi Kant. The autopsy doctor was not sure if it could be the
weapon of offence respecting the second injury noted in the autopsy report
but accepted the possibility in this regard concerning the first injury,
referring, in this context, to the size of the blade (10 cm) of the cutting
instrument shown to him.
24. The learned senior counsel representing A-1 and A-2 and the learned
counsel representing A-3 have argued that all the above mentioned
witnesses (PW-2, 6 and 8) are wholly un-reliable and their versions are full
of contradictions rendering the prosecution case doubtful. It was submitted
that the fatal assault on the person of Ravi Kant took place when there was
no witness around and that the FIR was registered belatedly, PW-2 having
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been planted as an eye-witness, by design, her injury being self-inflicted.
The appellants submit through counsel that the version of Sant Nath, the
person who had called the PCR resulting in logging of the DD entry No.
17/B (Ex.PW-4/D) reveals the possibility that a passerby had seen the victim
(Ravi Kant) lying injured, then not identified. In their submission, neither
Sant Nath (the caller to PCR) nor lady constable Babli (the PCR official who
had received the call) having been examined, adverse view deserves to be
taken against the prosecution case. The defence also submits that there is
inconsistency between the ocular evidence and medical/scientific opinion
and, therefore, the prosecution case ought not be believed. It was further
argued that the theory of past enmity, based on earlier complaints to the
police, being double edged the possibility of false implication cannot be
ruled out. On these submissions, the appellants urge that they deserve
benefit of doubts and to be acquitted.
25. Per contra , the additional public prosecutor submitted that the
evidence of PW-6 and PW-8 is wholly consistent and reliable. He argued
that PW-2, for certain reasons, opted to be not supportive and that her denial
of the prosecution case during her examination-in-chief was not convincing.
His submission was that the evidence of PW-2 also lends substantial support
to the word of PW-6 and PW-8 with regard to the genesis of the dispute and
the sequence of events and, in the facts and circumstances, their ocular
testimony bringing out the complicity of the three appellants in the crime
has been correctly appreciated and accepted by the trial court. He, thus,
urged that the findings returned in the impugned judgment be sustained.
26. The first and the foremost argument of the learned senior counsel
representing appellant Anil Kumar @ Mithu (A-1) and appellant Sunil
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Kumar @ Dudha (A-2) is based on the contents of the DD No.17-B
(Ex.PW-4/D). The submission is that the DD entry reflects that no eye
witnesses were present at the scene of incident, which is why a stranger
named Sant Nath (who was not even located) had to take it upon himself to
activate the police machinery by telephonically informing the PCR about the
victim of an offence of stabbing. The learned counsel submitted that since
the DD entry would not mention the presence of any eye witnesses and since
it also is conspicuously silent about identity of the victim, it must be
concluded that the victim (Ravi Kant) was lying in injured state, all alone,
unattended. Another argument which is closely connected to this line of
submission is that, if anyone, it was the caller to the PCR (Sant Nath) who
would have been the first witness on the scene whose evidence would have
been most crucial. It is argued that Sant Nath not having been examined,
with lady constable Babli (of PCR) also kept away from the witness box, the
best evidence has been withheld for which reason adverse inference
deserves to be drawn.
27. We are not impressed with the above noted submissions. The role of
lady constable at PCR was only that of a post office. Her appearance as a
witness would have not added further to the available information. The DD
entry (Ex.PW-4/D) reveals that the caller to PCR, having given his name as
Sant Nath, had not shared the full particulars. There is no reference even to
the number of the telephone from where call was made to PCR. In absence
of such information, it was virtually impossible for the investigating police
to trace out the caller. The DD entry notes the brief information conveyed.
It was too cryptic to be the basis of FIR or of any assistance in tracing out
the identity of the assailants. In the given facts and circumstances, the caller
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to PCR could not conceivably have been a person acquainted with the victim
by name or face, he apparently being only a good samaritan who thought it
necessary to share the information about the stabbing with the police.
Merely because he did not chose to reveal his full identity or convey
anything beyond the fact of stabbing cannot lead to the conclusion that Sant
Nath (the caller) was either an eye witness to the occurrence or the first (or
the sole) person on the scene immediately after the occurrence. There is also
nothing in the DD entry from which it can be deduced that the victim was
lying unattended at the spot.
28. It was then argued by the learned counsel for the appellants that the
eye witness account is contradictory to the documentary evidence.
Reference was also made to the initial part of the testimony of PW-2
wherein she had denied that either she or Ravi Kant had been injured by the
appellants. Reference was made to her version forming part of the FIR
wherein there was no mention of the presence of PW-6 or PW-8 at the time
of stabbing. The learned counsel also pointed out that PW-2 had disputed
the prosecution case as to the role of appellant Sunil Kumar @ Dudha (A-2)
in the fatal assault on the person of Ravi Kant and she having disowned the
statement (Ex.PW-2/A) attributed to her. In their submission the evidence
of PW-2 is contradicted by that of PW-6 who, instead, mentioned the
presence of one Laxman at the scene of occurrence and though claiming to
be an eye witness had conceded, under cross-examination, that her statement
was never recorded by the police during investigation. It was also argued
that the FIR was deliberately belated and a concocted story had been cooked
up, as an afterthought, planting PW-2 as an eye witness, the police having
failed to secure the version of the victim who, as per the MLC, was “fully
Crl. A. No.250/2000 & 394/2000 Page 16 of 28
conscious” when he was brought to the hospital by his father (PW-8) at 8:35
p.m. It was submitted that the presence of PW-6 and PW-8 is not shown
even in the site plan (Ex.PW-17/A) which, by itself, is a good reason for
doubts to be entertained as to the veracity of their version. In this very
context, the learned counsel further submitted that PW-2 had suffered
injuries which were possibly self-inflicted, this having been arranged so as
to make her version acceptable, which is why the witness was reluctant to
support the prosecution case when called upon to depose at the trial.
29. The thrust of the above submissions essentially is that the three
witnesses presented as witnesses to the occurrence (PW-2, PW-6 and PW-8)
have not testified fully corroborative of each other and that they were in no
position to even otherwise see the occurrence or to be able to identify the
assailants as they admit that the place was in darkness. Arguing that the
evidence supporting the theory of previous enmity is founded on stale
documentary material, the learned counsel referring to State of Punjab vs.
Sucha Singh, 2003 (3) SCC 153, submitted that the animosity is a double
edged sword and if the discrepancies in the ocular and medical evidence
render the presence of witnesses at the scene doubtful, the question of
motive becomes inconsequential.
30. Reliance is placed on Tulsiram vs. State of M.P., (2008) 17 SCC 13 to
submit that the first informant (PW-2) projected as the injured (star) witness
but having turned hostile, the genesis of the incident is rendered doubtful of
which the accused deserve to be given benefit. Reliance is also placed on
Tamilselvan vs. State, (2008) 7 SCC 755 and Karamjit Singh vs. State of
Punjab, (2000) 3 SCC 150 to argue that identity of the appellants as the
assailants has not been specifically established. Placing reliance on Golbar
Crl. A. No.250/2000 & 394/2000 Page 17 of 28
Hussain vs. State of Assam, (2015) 11 SCC 242 and Shyamal Saha vs. State
of West Bengal, (2014) 12 SCC 321, it was argued that the substratum of the
prosecution case falls flat as the testimonies of PW-2, PW-6 and PW-8 are
not properly supported by the evidence of PW-4 and PW-5 what with
independent witnesses (Laxman and Sant Nath) having been kept away.
31. We have already dealt with the submission of the appellants with
regard to the non-examination of Sant Nath as a witness for the prosecution.
Laxman, whose name figures in the evidence, had been examined during the
investigation by the police. He was even cited as a witness in the charge
sheet, his evidence expected to provide independent corroboration to the
word of PW-2, PW-6 and PW-8. As per his particulars mentioned in the
report under section 173 Cr.P.C. Laxman was a local resident. But, the
record of the trial court also shows that when attempts were made to secure
his presence for gathering his evidence, it came to be revealed that Laxman
had moved away from the locality (where he had been living in a premises
on rent), to some undisclosed location. The proceedings recorded by the trial
court reveal that several attempts were made to trace his whereabouts, but
with no success. Eventually, the prosecution was constrained to give up on
the said witness, primarily because of his non-availability, also for the added
reason that his evidence would have only been repetitive to what had been
adduced through the above mentioned three witnesses.
32. Given the efforts that were made to trace out and serve Laxman for
securing his evidence, it is not fair to say that the said witness has been
wrongfully kept out by the prosecution. In these circumstances, there is no
reason why an adverse view should be taken on such account.
Crl. A. No.250/2000 & 394/2000 Page 18 of 28
33. The submission that the presence of PW-8 at the scene of incident at
the time of occurrence is doubtful because his name does not figure in the
site plan is against the record. Rough site plan (Ex.PW-17/A) was prepared
by the first IO immediately after the registration of the FIR. It mentions the
location from where PW-8 claimed to have seen the sequence of events
leading to the stabbing of his son (Ravi Kant).
34. It is true that PW-8 was an ordinary resident of a house in gali no.9
whereas the incident is shown by the evidence to have occurred outside
eastern end of gali no.7. But, PW-8 has given sufficient explanation with
regard to his presence close to the said corner of gali no.7 at the crucial point
of time. One of his sons had been involved in a quarrel with the family of
the first two appellants (A-1 and A-2) only a few hours earlier. As noted
earlier, his family had been on difficult terms with the family of the
appellants for various reasons for quite some time past. There is ample
evidence available on record to accept the prosecution case that it was the
appellants’ side who had been the cause for provocation in the previous
incidents. Given this background and the episode of possible assault on his
other son having been evaded only a few hours earlier, PW-8 was seemingly
anxious to ensure that his other son (Ravi Kant) who had gone out on some
errand (purchasing kerosene oil) safely returned home. Under these
circumstances, we do not have any reasons to doubt the veracity of PW-8 as
to his presence very close to the place where Ravi Kant was stabbed.
35. PW-6 has also satisfactorily accounted for her presence at the scene.
Her Jethani (PW-2) had come to check on the welfare of the family after the
earlier dispute in the evening. By the time she was ready to go back it had
gone dark. Thus, PW-6 was escorting her back to her house and happened
Crl. A. No.250/2000 & 394/2000 Page 19 of 28
to be on the scene when the stabbing took place. The omission of the IO to
ascertain and specifically note her location in the site plan is a lapse which
he only should have been called upon to explain. This police lapse cannot
adversely impact the credibility of PW-6.
36. As already observed by us, PW-2 was injured, though suffering
superficial wound on her forearm, around the same time as that of stabbing
of Ravi Kant. During cross-examination at the hands of the learned
additional public prosecutor, she did come out with facts broadly supporting
the prosecution case, particularly about the injuries suffered by Ravi Kant
and herself in the course of same transaction. She was apparently not being
truthful when she started her deposition on the note denying even her ability
to identify the appellants. The falsity of her denial stood exposed by her
later deposition wherein she confirmed having heard the names Dudha and
Mithu being called out by Ravi Kant in the midst of the attack on him. She
lives a few streets away from the houses of the deceased and the first two
appellants (A-1 and A-2). She is closely related to the family of the
deceased. The word of the earlier assault on the brother of the deceased on
the same evening had apparently spread around. This is why PW-2 had felt
the need to come over to the house of the deceased to enquire about welfare
of the family. It is inconceivable in such scenario that she would not even
know as to the identity of the family with whom such quarrels had been
taking place at regular intervals. As already observed, there is nothing before
us on which we can presume that the injuries of PW-2 were self-inflicted.
37. The MLC of Ravi Kant (the victim) does contain mention about he
being fully conscious when brought to the hospital by his father. But, the
document has to be read in entirety and along with other medical record.
Crl. A. No.250/2000 & 394/2000 Page 20 of 28
His condition was critical as the pulse was very feeble. So much so that, in
less than an hour he had been rendered unfit for making any statement.
Thus, by the time the investigating police arrived, there was no possibility of
the statement of the victim being recorded.
38. We see no reason why the testimony of PW-6 and PW-8 in particular
should be rejected only because they are close relatives of the victim (the
deceased). On the contrary, their close relationship (wife and father
respectively) with the deceased, in the fact-situation at hand, is an added
assurance that they would not falsely implicate an innocent person to screen
the real culprit. [See: Dalip Singh vs. State of Punjab, AIR 1953 SC 364;
1953 Crl.LJ 1465; Hari Obula Reddy vs. State of A.P., (1981) 3 SCC 675;
1981 SCC (Cri.) 795; and Jodhan vs. State of Madhya Pradesh, 2015 (11)
SCC 52 ] .
39. We are not impressed with the argument concerning darkness. The
appellants were well known to the witnesses, particularly PW-6 and PW-8,
they being close neighbours with whom they had had innumerable
showdowns in the past. The witnesses were at close quarters when the
stabbing took place. PW-6 noticeably was walking along side PW-2
escorting her back to her house. The fact that PW-2 had intervened and had
also been injured in the process, though only slightly, reveals that the
distance between then and the assailants was virtually non-existent. From
the evidence it is clear that even PW-8 was positioned close by. In these
circumstances, the darkness by itself would not mean absolute impossibility
of identifying the assailants. In the given scenario mere silhouettes would
be sufficient to reveal and pin down the identity.
Crl. A. No.250/2000 & 394/2000 Page 21 of 28
40. It is true that the names of the assailants were not reported to the
medical officer at the time of MLC. This is no reason why the prosecution
case is to be doubted. Such omission cannot discard the word of the eye
witness for the simple reason the examining doctor in the hospital would be
least interested in knowing the identity of the assailants, his focus being on
the medical condition and the course of treatment required. [See: Pattipati
Venkaiah vs. State of Andhra Pradesh, 1985 (4) SCC 80].
41. We reject the argument of it being a case of ante-timing of the FIR. It
has to be borne in mind that witnesses are also human beings who are
susceptible to trauma and disturbed emotional quotient particularly when
they have seen a gory incident taking place involving their own near or dear
one right in their presence. It takes some time for a person in state of shock
to come out and regain composure. Some delay in reporting, or coherent
narration of facts, to the law enforcement agency (the police) is bound to
occur in the ordinary course. So long as the delay is not inordinate, it ought
not be viewed with suspicion. But, in the present case, as we demonstrate in
the following para, there has been no delay at all.
42. The incident had occurred at about 7:45 p.m. on 13.08.1990. The
police learnt about the incident at about 8:15 p.m. through the PCR call. The
victim (Ravi Kant) was brought to the hospital at 8:30 p.m. An information
to this effect was conveyed to the police at 8:35 p.m. When the victim was
taken to the hospital, his father (PW-8) and the brother had accompanied
him in the three wheeler scooter (TSR). There is sufficient explanation given
in the evidence that because the TSR would not accommodate more, PW-2
could not accompany them in the TSR to the hospital at that stage. She was
thus taken to the hospital by the police, she having arrived there at 9:30 p.m.
Crl. A. No.250/2000 & 394/2000 Page 22 of 28
By that time the investigating officer was hoping to secure the version of the
victim (Ravi Kant). Ravi Kant having been declared to be unfit for
statement at about 9:20 p.m. (Ex.PW-11/C), the IO (PW-17) depended on
the word of PW-2, she having been injured in the same incident. Thus, he
recorded her statement (Ex.PW-2/A) and dispatched the rukka (Ex.PW-4/A)
at 10:10 p.m. and on such basis FIR (Ex.PW-4/B) was recorded at 10:30
p.m. There is no delay in the registration of the FIR, least of all an inordinate
or unexplained delay. Rather, the registration of FIR could not have been
more prompt than the one at hand.
43. The learned counsel for the appellants have submitted that the
prosecution has contradicted itself by securing from the autopsy doctor
(PW-9) opinion as to the possible use of knife (Ex.P-1) for causing first of
the two fatal injuries suffered by the deceased (Ravi Kant). It was pointed
out that the said knife (Ex.P-1), according to the evidence, had been
recovered at the instance of appellant Anil Kumar @ Mithu (A-1) who, as
per the ocular evidence, had not inflicted any stab injury on the person of the
victim, the stabbing having been attributed to appellant Sunil Kumar @
Dudha (A-2). It was also pointed out that no weapon has been recovered
from the appellant Sunil Kumar @ Dudha (A-2). Reliance is also placed on
Khambam Raja Reddy vs. State of A.P., (2006) 11 SCC 239 to urge that
ocular evidence must be rejected as the same does not assist in connecting
the injuries to the attendant circumstances.
44. There is no merit in the above noted submissions. The endeavor of
the public prosecutor examining the autopsy doctor (PW-9) to seek his
opinion as to the possible use of knife (Ex. P1) was unnecessary and
meaningless. It appears that in his overzealousness he forgot that the
Crl. A. No.250/2000 & 394/2000 Page 23 of 28
investigation has not brought out any connection between knife (Ex.P1)
recovered at the instance of appellant Anil Kumar @ Mithu (A-1) and the
injuries suffered by the deceased. It also seems to have escaped his attention
that no weapon could be recovered from appellant Sunil Kumar @ Dudha
(A-2). In this view, the defence cannot derive any advantage out of the
opinion expressed by the autopsy doctor vis-à-vis the possibility of knife
(Ex.P1) as the weapon of offence directed against the deceased.
45. The documents brought on record showing the complaints having
been lodged by the family of the deceased against that of the first and the
second appellants may be a few years prior to the date of occurrence. But, it
is not correct to say that the evidence respecting past incidents of quarrel is
stale. To illustrate, we need mention here only the fact of quarrel that had
taken place just a few hours prior to the fatal assault of which account PW-2
had paid a visit to the house of the deceased.
46. It is trite that non recovery of the murder weapon cannot materially
affect the prosecution case, particularly if the oral evidence is found to be of
unimpeachable character and amply corroborated by medical evidence
[ Nankaunoo vs. State of Uttar Pradesh, 2016 (3) SCC 317].
47. It is correct that PW-2, the first informant, turned hostile. Her refusal
to support the prosecution case, however, cannot be clinching particularly
when, mercifully, other witnesses of the scene of incident are available and
there is no reason to question their veracity. It is trite that the court looks for
quality of evidence and not the number or quantity of witnesses. [ Manjit
Singh & Anr. vs. State of Punjab & Anr., 2013 (12) SCC 746]. It is also well
settled that evidence even of a hostile witness can be used to return finding
Crl. A. No.250/2000 & 394/2000 Page 24 of 28
against the accused to the extent it provides corroboration to the other
material on record. [ Devraj vs. State of Chatisgarh, 2016 (7) Scale 369] .
48. In a judgment of the Supreme Court reported as The State of Punjab
vs. Jagir Singh & Ors., (1974) 3 SCC 277, it was observed thus:-
“23. A criminal trial is not like a fairy tale wherein one
is free to give flight to one’s imagination and phantasy. It
concerns itself with the question as to whether the
accused arraigned at the trial is guilty of the crime with
which he is charged. Crime is an event in real life and is
the product of interplay of different human emotions. In
arriving at the conclusion about the guilt of the accused
charged with the commission of a crime, the court has to
judge the evidence by the yardstick of probabilities, its
intrinsic worth and the animus of witnesses. Every case
in the final analysis would have to depend upon its own
facts. Although the benefit of every reasonable doubt
should be given to the accused, the courts should not at
the same time reject evidence which is ex facie
trustworthy on grounds which are fanciful or in the
nature of conjectures.”
49. It is well settled that it is not every contradiction that gives rise to
doubts as to the truthfulness of the prosecution evidence. For a doubt
stemming from a contradiction on account of improvement or omission in
the testimony of a witness to be of any import or effect, it must not only be
one that can be reasonably drawn but also one that goes to the root of the
matter. In a previous judgment in Criminal Appeal No.453/2016, titled
th
Rohit @ Mona vs. Govt. of NCT of Delhi, decided by us on 24 August,
2016, we summarized the law thus:-
“34. Small embellishments or variations in the
statements of material witnesses, not of any significant
import, cannot be allowed to be used to question the
Crl. A. No.250/2000 & 394/2000 Page 25 of 28
credibility of their version which is otherwise consistent
and corroborative of each other and carrying a ring of
truth. Some exaggerations or embroidery in the
description of the sequence of events witnessed by them,
particularly when they are called upon to depose in the
court at some distance of time from the date of the
incident, are quite natural. After all, they depend on
human memory which is generally susceptible to become
fainter with each passing day and definitely cannot be
photographic, nor synchronizable with a universal watch
giving the ability to each individual to peg a particular
event to a particular stroke of the hour with exactitude.”
50. On careful scrutiny of the evidence on record, we do not find any
such contradictions or inconsistencies as can reasonably lead to doubts about
the complicity of any of the three appellants.
51. In the given fact situation, the half-hearted deposition of PW-2 cannot
become the touchstone for testing the veracity of PW-6 and PW-8. The
evidence of the said two witnesses has to be examined for their intrinsic
worth on the basis of overall facts and circumstances. Their testimonies are
substantially corroborative of each other and do not suffer from any such
contradictions as can render their account incredible.
52. We, thus, uphold the impugned judgment, accepting the prosecution
evidence, particularly the eye witness account of PW-6 and PW-8, and find
that Ravi Kant (the victim) had been waylaid by the three appellants with
another associate on 13.08.1990 at about 7:45 p.m. outside Gali no.7 of
Indira Park, Palam Colony, New Delhi, with atleast two of them – viz. the
appellant Sunil Kumar @ Dudha (A-2) and appellant Anil Kumar @ Mithu
(A-1) – armed with knives. All four of them held the victim (Ravi Kant)
forcibly, appellant Anil Kumar @ Mithu (A-1) and appellant Dinesh Kumar
Crl. A. No.250/2000 & 394/2000 Page 26 of 28
Sharma (A-3) aiding and assisting, appellant Sunil Kumar @ Dudha (A-2)
inflicted two knife blows on his body, the consequent injuries later resulting
in his death. In this sequence of events, the intention to cause death is bound
to be inferred. We, therefore, affirm the findings that the death of Ravi Kant
(the victim) was a case of murder punishable under Section 302 IPC,
brought about due to acts of commission on the part of the three appellants
and their fourth associate, all acting together and thereby indicating sharing
of common intention on their part, thus attracting Section 34 IPC. Similarly,
the evidence has also brought home, to our satisfaction, that when PW-2 had
tried to intervene and come to the rescue of Ravi Kant (the victim) appellant
Anil Kumar @ Mithu (A-1) turned his attention towards her and inflicted a
cut on her left forearm causing injury with the knife which he was wielding
at that point of time. His guilt for the offence of voluntarily causing hurt by
a cutting instrument, punishable under Section 324 IPC, also resultantly has
been brought home.
53. For the foregoing reasons, we find no merit in the appeal in so far as
the challenge was brought to the findings of guilty and conviction of all the
three appellants for offence under Section 302 read with Section 34 IPC and
of first appellant Anil Kumar @ Mithu (A-1) for offence under Section 324
IPC. In our opinion, the sentences awarded by the learned trial Judge also
call for no interference.
54. In the result, the appeals are found devoid of substance and, therefore,
dismissed.
55. The sentences awarded against the three appellants were suspended
and they were enlarged on bail pending hearing on these appeals. They are
now directed to surrender to custody within 30 days of this judgment and
Crl. A. No.250/2000 & 394/2000 Page 27 of 28
undergo the punishment awarded in this case. The learned trial court (or the
successor court) and the station house officer of the police station Dabri
shall take suitable steps to ensure compliance with these directions.
(R.K. GAUBA)
JUDGE
( GITA MITTAL)
JUDGE
SEPTEMBER 15, 2016
vk/nk
Crl. A. No.250/2000 & 394/2000 Page 28 of 28