$~ *IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:- 5th February, 2014 + CRIMINAL APPEAL4131998 SUNIL KUMAR & ORS. ..... Appellant Through Mr. G.S. Sharma and Mr. R.A. Sharma, Advocates. versus GOVT OF NCT OF DELHI ..... Respondent Through Ms. Rajdipa Behura, APP. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE G.P. MITTAL SANJIV KHANNA, J.
The third appellant, namely, Om Prakash @ Bengali brother of the other two appellants Sunil Kumar and Om Babu @ Pappu expired during the pendency of the present appeal. The present appeal, therefore, has been pressed on behalf of Sunil Kumar and Om Babu @ Pappu.
2. The two appellants along with the deceased appellant Om Babu @ Pappu by the impugned judgment dated 17th September, 1998 stand convicted under Section 302 read with Section 34 Indian Penal Code, 1860 (IPC) for murder of Tejpal at about 8.00-8.30 p.m. on 2nd October, 1992. By order of sentence dated 19th September, 1998, the two appellants have been sentenced to life imprisonment for the offence under Section 302 read with Section 34 IPC and fine of Rs.5,000/- each. In default of payment of fine, the appellants have to undergo Rigorous Imprisonment for three months.
3. On the question of involvement of the appellants, we have testimonies of two eye witnesses Sukhbir Singh (PW-10) and Ved Prakash (PW-12). FIR was also registered on the basis of statement made by PW-10, which has been marked Ex.PW10/A. In the said complaint, name of the two appellants is mentioned. PW-10 and PW-12 in their Court deposition have clearly named the two appellants and that they along with Om Babu @ Pappu and a fourth person were present at Nehar Pul, 100 feet Road at a meat/kharora shop. PWs-10, 12 and the deceased had also gone to the said shop to eat „kharoras‟. Altercation took place between them as appellant Sunil Kumar had asked kharorewala to serve him kharora first, which was objected to by Sunil. PW-10 and PW-12 have deposed that this led to scuffle between Sunil and deceased Tejpal. Om Prakash also joined and held the deceased by his neck (Gireban). The third appellant Om Babu, who had expired, caught hold of Tejpal by his right hand. Thereupon, as per PW-10 and PW-12, Sunil took out a knife from his right side pant pocket and gave 5-6 knife blows to Tejpal. These blows were given on the left shoulder, right shoulder and the chest. PW-10 remained at the spot and PW-12 went to call Arvind, who has appeared as PW4. Three of them took Tejpal to GTB Hospital where doctor declared the injured as brought dead. Police came to the hospital and statement of PW-10 i.e., the complaint Ex.PW10/A was recorded, which is signed by PW-10. PW-10 has deposed that on 3rd October, 1992, he was summoned by the police. He along with Ved Prakash (PW-12) and police had gone to the house of Sunil. The two appellants Sunil and Om Babu @ Pappu along with Om Prakash were arrested while standing at the corner of the street. It may be noted that no recovery pursuant to the alleged disclosure statements was made. Two more persons, namely, Sanjay and Rajjan were also arrested and charge sheeted. Recovery of the alleged knife used is attributed to the disclosure statement made by Sanjay. Trial court has acquitted Sanjay and Rajjan by granting them a benefit of doubt. Trial court disbelieved recovery of the knife at the behest and pursuant to the alleged disclosure statement of Sanjay and has also doubted the use of the said knife in the offence.
5. At this stage, we only record that the State has not preferred any appeal against acquittal of Sanjay and Rajjan. Findings recorded by the trial court regarding the to knife will be examined subsequently.
6. Arvind (PW-5) has deposed that on 2nd October, 1992 at about 8 p.m. he was present near Babarpur Terminal, when Ved Prakash (PW-12) told him that some persons were beating Tejpal. Thereupon, he went to Nehar Pul, 100 Feet Road and found Tejpal in an injured condition. They i.e. Arvind (PW-5), Sukhbir Singh (PW-10) and Ved Prakash (PW-12) took Tejpal to GTB Hospital, where the doctors declared him as brought dead. In the cross-examination, PW-5 has stated that Ved Prakash (PW-12) and Sukhbir Singh (PW-10) did not tell him the names of the persons, who were beating Tejpal. We do not think that the said assertion made by PW-5 in the crossexamination in any way negates the version given by PW-10 and PW-12 as to the involvement of the appellants as perpetrators. The reason is obvious as the name of the appellants are mentioned in the complaint Ex.PW10/A, which was recorded at 11.15 p.m. Statements made by PW-10 and PW-12 in framing the two appellants as perpetrators are credible and reliable.
7. Our attention is drawn to the cross-examination of the first Investigating Officer SI Murari Lal (PW-14), who had deposed in the cross-examination that he did not seize clothes worn by the witnesses because they were not blood stained. It is highlighted that the deceased was taken to the hospital as per the version of PWs-5, 10 and 12 in a three-wheeler scooter and, therefore, in normal course there should have been blood stains on the clothes worn by them. It is accordingly submitted that PWs-5, 10 and 12 had not taken the deceased to the hospital. We are not inclined to accept the said submission, though there appears to be some lapse on the part of the first Investigating Officer in not seizing the clothes. DD No.18A was recorded at 9.25 p.m. and the aforesaid three witnesses met PW-14, SI Murari. There are several reasons and grounds why we should accept presence of PW-10 and PW-12 at the spot and that they along with PW-5 had taken the deceased to the hospital. PWs-5, 10 and 12 have deposed that they met the police officers in the hospital. Similar statement was made by PW-14, who has stated he met three of them in the hospital and thereafter they went to the spot in question. Thereupon, PW-14 recorded statement of Sukhbir (PW-10) at about 9.50/9.55 p.m. and the rukka was completed by 10.50/10.55 p.m. The ocular statements made by the said witnesses to the said effect, inspires confidence and does not deserve rejection for the aforesaid lapse by the Investigating Officer in collecting their clothes in collecting their clothes. The version given by PWs-10 and 12 does not reveal any past history of enmity or prior history. As already noted above, name of the two appellants finds mention in the complaint Ex.PW-10/A.
8. The next question which arises for consideration is whether the appellants have been rightly convicted under Section 302 IPC or their conviction should be converted into Section 304, Part-I as submitted on behalf of the appellants. Reliance is placed upon Exception 4 to Section 300. Learned Additional Public Prosecutor on the other hand relying upon the statements made by PW-10 and PW-12 submits that the appellant Sunil was carrying a knife in his pocket and had given multiple stab wounds to the deceased and, therefore, the trial court is justified in convicting the appellants under Section 302 IPC.
9. As far as the injuries suffered by the deceased are concerned, his MLC has not been exhibited or proved. However, we have on record the post mortem report, Ex.PW8/A, which was proved by Dr. S.K. Verma (PW-8). He has referred to seven wounds on the body of the deceased including abrasions. There is also reference to five incised wounds and it is indicated that cause of death was shock due to antemortem injury No.5 caused by a sharp edged weapon. The said injury was sufficient to cause death in the ordinary course of nature collectively and independently. Wound or injury No.5 was on the right side of the chest, above the right nipple and was about 9 cm deep. The exact details of the said wound, as per the deposition of PW-8, are as under:
“5. 1 stab wound places upside down of size 2.5 × 1.1” cms × cavity deep placed in midclomicular line on right side chest enteriroly 6 cms above the right nipple and 8 cms lateral to midline going ertically backwards in the 2nd intercostals space cutting skin, intercostals muscles pkura and then entering into the anterior surface of upper lobe of right lung and coming out of posterior surface. Rt. Lung was collapsed. The wound was spindle shaped with an angle more acute then other. Total length of the wound was appr. 9 cms. Blood was present in and around the wound. Both angles of the wound were acute.”
10. PW-10 and PW-12 have both deposed that the knife was taken out by appellant Sunil. However, as noticed above, the trial court in the impugned judgment has disbelieved the recovery of knife pursuant to the alleged disclosure statement of accused Sanjay, who was acquitted giving the following reasons:
“37. It was next argued by the ld. Counsel that independent witnesses were not joined at the time of the arrest of any of the five accused and the recovery and that the arrest and recovery of the weapon of offence is only a concoction. PWs Sukhbir and Ved Prakash did accompany the police party at the time of the arrest of the five accused and the recovery. It is true that they may not be termed as independent witnesses now and at the stage of arrest and recovery, but they did not lose any credit merely because they are also the eye-witnesses of the incident specially when the defence never suggested to them that those witnesses had any kind of animosity against any of the accused persons. I may also add here that joining of persons from the public, otherwise, not connected within the occurrence, is a very very hard nut to crack these days as public persons generally stay away from joining any such proceedings specially when they know that they would be required to depose against some suspected criminals for a serious offence. As far as arrest of accused persons and recovery of weapon is concerned, I do not see any discrepancies or inconsistencies in the statements of the witnesses, however, I do seem to be agreeing with the next defence contention that the recovery of the weapon of offence in the given circumstances is actually discovery of an unknown or hidden fact since it stood admitted by all the related witnesses that the place of the alleged recovery was accessible to all in a normal manner, the recovery spot situated just near a common pathway and the handle of the dagger/knife was visible even without disturbing anything around it and the grass was also of the height of 1”. I do not think it can be said to be any safe place for someone to hide or dispose of the knife, particularly when its handle is visiblebeing above the ground and the grass. It was a fact which could be known to any person, recovery point being freely accessible and a place which was frequently visited by nearby residents and other persons. I would not attach much importance to this recovery as this knife does not connect, in any particular and specific way, it‟s having been used in the crime as the CFSL report failed to analyse the blood group seen thereon. The opinion given by the Doctor, who conducted post mortem on the body of the deceased and also examined this knife and the cuts mark found on the clothes of the deceased, would also not be anyway material as far any links between knife Ex.P1 and the occurrence or any accused is concerned, since the opinion only reads that such cuts could be caused by a knife of the given type, and, we can take a general note that knife Ex.P1 cannot be the only knife of its kind and therefore I do not see that prosecution can got any benefit out of the recovery of this knife at the alleged instance of accused Sanjay. Defence contention that weapon of offence could not be connected and linked with the crime has to fail despite my view to keep the weapon of offence out of the satisfaction of the requirement of Section 27 Indian Evidence Act which I so hold simply as a matter of abundant caution. I may also add here that even in case there had been no recovery of the weapon of offence then also a benefit, otherwise, could not have gone to any of the accused as non-recovery of the weapon of offence, other evidence remaining acceptable, cannot be considered fatal for the prosecution.
11. At this stage, it would be important to refer to the lapse pointed out by the learned counsel for the appellants. It is stated the Kharorewala was not cited as a witness and even his statement under Section 161 of Code of Criminal Procedure, 1973 was not recorded. We do not think that the appellants can be acquitted for the said reason or this creates doubt as to whether the appellants were the actual perpetrators. However, the failure of the prosecution to examine the Kharorewala does leave certain doubts and relevant unanswered on the aspect relating to whether the conviction should be under Section 304, Part-I or 302 IPC. SI Murari Lal (PW-14), the first Investigating Officer in the cross-examination was asked whether he had met Kharorewala on return to the spot, but he denied the said suggestion. He claimed that he did not come to know the name of Kharorewala even thereafter till 4th October, 1992, when investigation was taken over by the SHO. However, he has accepted as correct that some hawkers and rickshawalas used to stand around and in the near vicinity of the spot, but not always. He also stated that he did not meet any other person who could give details of the incident corroborating the version of the complainant.
12. Sukhbir Singh (PW-10) in his cross-examination had stated that he did not know the name of the Kharorewala, but had accepted that they had visited the Kharorewala‟s shop earlier also. Kharorewala used to reside somewhere in Maujpur, but he had not seen his house. PW-10 accepted that he came to know about Kharorewala‟s address during conversation on their earlier visits. He also accepted that they were two persons in the Kharorewala‟s shop. One of them was the Kharorewala himself and other person was his helper, who used to wash utensils. The Kharoewala had a fixed and permanent place where he used to station his „rehri‟ on the patri. PW-12 too accepted that Kharorewala was present at the shop at the time of incident.
13. The second Investigating Officer, Inspector Bal Kishan to whom PW-14 had handed over investigation, appeared and deposed as PW-11. He has taken over the investigation of the case on 5th October, 1992. He has not deposed and referred to any inquiries or attempt made by him to locate the Kharorewala and record his statement. The aforesaid aspect becomes relevant as knives are normally kept and used at meat shops. It is apparent from the testimonies of PW-10 and PW-12 that there was no pre meditation and the appellants did not have any earlier history of quarrel with Tejapal. The appellants and Tejpal happened to be at Kharorewala‟s shop to eat cooked meat/kharoras. Tejpal had demanded that he should be served first, which was objected to by Sunil. For the said small cause/dispute, scuffle took place between Sunil and Tejpal. PWs-10 and 12 have deposed that Om Babu had joined in and caught Tejpal by his neck. Sunil had taken out a knife from his pocket and stabbed Tejpal. PW-10 and PW-12 averred and stated that they remained spectators and did not participate or prevent injuries being inflicted to Tejpal.
13. We are not inclined to accept the contention of the appellants that the aforesaid version given by PW-10 and PW-12 appears to be an exaggeration and may not reveal the exact and true nature of the actual occurrence. We have some doubts whether we should accept the testimonies of PW-10 and PW-12 regarding the fact whether Sunil was carrying a knife in his pocket. As per the police version, length of knife in question was about 9.5 inches including blade of 3.9 inches as mentioned in Ex.PW-10/K. It is possible, as pleaded and submitted, that knife may have been picked up from the spot itself. It may be noted that no recovery pursuant to the alleged disclosure of the two appellants was effected. As noted above, the trial court has disbelieved recovery of knife pursuant to the disclosure statement made by Sanjay, who has been acquitted. The witnesses PW-10 and PW-12 remained unhurt and were not touched.
14. Keeping in view the aforesaid facts, we are inclined to accept the contention of the appellants that the occurrence in question was result of a sudden fight or quarrel and not due to pre meditation and prior planning. In the heat of passion, while grappling was going on, injuries were caused. There was only one major injury which had resulted in death of Tejpal. In these circumstances, we apply Exception 4 to Section 300 and convert the conviction of appellants from Section 302 IPC to Section 304, Part-I.
15. The last question relates to quantum of sentence. Tejpal had died as a result of the injuries caused. Order sheets in the appeal reveal that Sunil was directed to be released on suspension of sentence vide order dated 1st October, 2002 followed by order dated 7th November, 2002, after he had already undergone incarceration of 6 years 8 months and 28 days as on 28th August, 2002. Appellants Om Babu and Om Prakash were also released subsequently, pursuant to the order of suspension of sentence dated 12th May, 2003, wherein it is recorded that they had undergone imprisonment of almost 5 years in jail. This order was followed by another order dated 27th May, 2003, by which the amount of surety, which was required to be furnished for bail, was reduced. This shows that the appellant Om Babu had remained in jail at least till 27th May, 2003, though it appears that he was granted bail during trial.
16. Normally for the offence in question, the two appellants deserve a long sentence, but keeping in view the fact that they were released on suspension of sentence and have been on bail for more than 10 years and are not involved in any other case, we are inclined to sentence the appellants to the period already undergone. The appellants, however, will pay fine of Rs.5,000/each imposed by the trial court within 45 days from today and in default, will have to undergo Rigorous Imprisonment of two months. The appeal is accordingly disposed of. SANJIV KHANNA, J.
G.P. MITTAL, J.
FEBRUARY05 2014 NA