* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRIMINAL APPEAL No.384/1998 Reserved on:
13. h January, 2014 Date of Decision:
19. h February, 2014 % OM PARKASH @ RAM KIRPAL Through ..... Appellant Mr. Ashok Kumar Jha, Advocate. Versus STATE ..... Respondent Through Mr. Rajat Katyal, Additional Public Prosecutor. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE G.P. MITTAL SANJIV KHANNA, J: Om Prakash, the appellant stands convicted under Sections 302 and 324 of the Indian Penal Code, 1860 (IPC for short) by the impugned judgment dated 30th May, 1998 arising out of FIR No.217/1991, police station Dabri. By order on sentence dated 30th May, 1998, the appellant has been sentenced to life imprisonment and fine of Rs.500/- for the offence under Section 302 IPC. In default of payment of fine, he has to undergo Simple Imprisonment for 15 days. For the offence under Section 324 IPC, the appellant has been sentenced to Rigorous Imprisonment for one year. The sentences were to run concurrently and the appellant was entitled to the benefit of Section 428 Code of Criminal Procedure, 1973 (Code, for short). Baijnath was also tried along with the appellant but he has been acquitted by the impugned judgment. State has not preferred any appeal against his acquittal and, therefore, we are only concerned with the order of conviction and sentence of Om Prakash.
2. Homicidal death of Mithu Rai in the intervening night of 11th and 12th July, 1991 stands established and proved beyond doubt in terms of testimony of Dr. Umed Singh (PW-7), who had proved the MLC of Mithu Rai Ex. PW7/A prepared by Dr. Chaman. Dr. Chaman had left service of DDU Hospital and his whereabouts were not known. PW-7 has identified the signature and handwriting of Dr. Chaman and has deposed that the MLC was prepared on 12th July, 1991 at 4.45 a.m. The said MLC, marked Ex.PW7/A, records that Mithu Rai was brought dead in the hospital at 4.45 a.m. on 12th July, 1991. However, the MLC of Mithu Rai is infact marked Ex.PW-15/E. He was not breathing. The pulse was not palpable and the heart beat was not audible. The pupils were fixed and dilated. As many as 5 injuries were noticed on local external examination. PW-7 has also deposed that Jawahar, who had appeared as PW-11, was also medically examined by Dr. Ronu vide MLC, Ex. PW7/B. Jawahar was brought to the hospital on 12 th July, 1991 at 4.45 a.m. with alleged history of assault and was discharged after treatment. He had a clean lacerated wound (CLW) on the right arm and elbow. The said injury, as recorded, was caused by a sharp weapon and was simple in nature, though, PW-7 in his court deposition had opined that this injury could have been caused by a blunt object, as a sharp weapon when used, causes clean incised wound.
3. Dr. L.T. Ramani (PW-16) had conducted a post mortem on the dead body of Mithu Rai and has delineated the following external injuries:
“1. An incised wound 3cm× into muscle deep near out end of right eye brow.
2. Bruise 6×5 cm on the right side front of chest midile (sic) to the right nipple.
3. An incised stab wound 3.5 c.m. × 1 cm×?. on the right sternal border lower part. Upper middile (sic) end of the injry (sic) was acutely cut.
4. Incised wound 3.5 c.m. ×?. Vertically placed on the left coastal margin, upper part of the route showed bifurcation into actutely cut end.
5. An incised wound 1.5 c.m. into skin deep. The base of right thumb.
6. Defence cut between right middle and index finter (sic) 1 c.m. × skin deep.
7. Multiple abrasion 4” ×3” on the back of right shoulder.
8. Incised wound 3 c.m. ×1 c.m. × ?. just above the right buttuck (sic), outer and was acutely cut.
9. Two incised wound 2 and 3 cm long into muscle deep on the back of left shoulder.
10. Incised wound 5 cm× two c.m. on the left axxilary (sic) wall, medile (sic) and was acutely cut.
11. 5 incised wound 2.5 to 4 c.m. long on the posterior aspect of the left side chest scattered over an area of 11× 8 c.m.”
4. PW-16 has deposed that injuries were ante mortem. Injury Nos. 2 and 7 were caused by a blunt object, but all other injuries were caused by a sharp weapon. Injury Nos.3, 4 and 11 were individually sufficient in ordinary course of nature to cause death. Five wounds described at Sr. No.11 were in chest and cavity deep. One of them had cut the diaphragm, and the stomach. The depth of the said injury was 12 cm. The remaining four had cut the left lung, which had partially collapsed. Injury No.4 after cutting the coastal margins had touched the liver. The total length of the cut on the liver surface was 3 cm and was 5 cm deep from the body surface. Injury No.3 had entered the right chest cavity and continued downwards over the diaphragm and liver. The total depth of this injury was 6 cm from the body surface. Subsequently, the weapon of offence i.e. the knife, sketch of which was marked Ex.PW3/B, was shown to PW-16 and he has deposed that all injuries except injury Nos.2 and 7 were possible from the said knife. He has stated that no blood was visible on the knife. He proved the post mortem report marked Ex.PW16/A, signed by him along with inquest papers etc.
5. On the question of involvement of the appellant, we have an eye witness i.e. the son of the deceased, namely Ranjeet Kumar. He was about 11 years old when his statement was recorded as PW1 in the court on 19th April, 1993. This means that he was about 9 years old at the time of occurrence. The trial court was conscious that it was recording the statement of a child witness and, therefore, had put questions to Ranjeet Kumar (PW-1) before recording his evidence. PW-1 has stated that he was studying in third standard in NDMC School, Mahavir Enclave, Part-II, Delhi. On the intervening night of 11th and 12th July, 1991, he was sleeping with his father on the same cot in the gallery. He woke up when his father became uncomfortable and struggled. He saw the appellant, who was present in the court, sitting on his father‟s feet and giving knife blows. On raising alarm, two tenants, Moti Lal and Sakal Dev Pandit came there. They apprehended the appellant Om Prakash. Later on other neighbours came to the spot and his father was taken to the hospital by Sakal Dev, Surender and other persons. Police also came to the spot and recorded PW-1‟s statement. PW-1 could not give the number of knife blows given by the appellant, but stated that the knife blows were given in his presence. In his cross-examination, he stated that he could not state the time when police had reached the spot, but the police had come approximately two hours after the incident. PW-1 stated that around 100 people had gathered and the police remained at the spot for about one and a half hours.
6. Learned counsel for the appellant has submitted that it was dark and, therefore, Ranjeet Kumar (PW-1) could not see the appellant. We do not agree with the said contention. PW-1 has stated that the appellant was detained/caught on the spot. Similarly, we do not agree with the contention of the counsel that PW-1 was tutored. PW-1 has stated that he did not know the name of the appellant but could identify and thereafter identified the appellant. In the cross-examination, he deposed that the appellant had disclosed that his name was Om Prakash. He had never seen Om Prakash. The police officer had told him that Om Prakash had a beard. He also deposed that the knife was not recovered in his presence. PW1 has been truthful and did not conceal facts from the court. This apart we find that PW1 testimony is corroborated and affirmed by other witnesses as well as documentary/material evidences.
7. Sakal Dev Pandit, who had appeared as PW-2, has deposed on identical lines. He testified that he had woken up after hearing shouts of Ranjit Kumar (PW-1) that dacoits were giving knife blows to his father. He knew the father of PW-1. He switched on the light and came running and saw that a person was giving knife blows to Mithu Rai. The said person was the appellant Om Prakash. He raised alarm and tried to intervene and in the process sustained injuries on his left hand. Since he was not able to overpower the appellant, he ran out to call others to overpower the appellant. The appellant tried to run away, but in the meanwhile villagers had gathered at the spot with stones. The appellant was apprehended near the hand pump by Davinder, Siyaram and Jawahar. The appellant was trying to remove, handle of the hand pump to hit them but did not succeed. Sakal Dev Pandit (PW2) took Mithu Rai to the hospital and on the way the police met them. The knife was recovered by Davinder from underneath the Malba (garbage). The appellant was arrested in his presence and his personal search was undertaken vide memo Ex.PW2/B. In the cross- examination, PW-2 has deposed that the police had come after half an hour. At the time of the attack, he was a tenant and residing in the property of the deceased. Mithu‟s son, Ranjeet Kumar raised alarm. He recognized Om Prakash as the attacker. During the attack, he and the other tenant Motilal also sustained a few knife blows. Subsequently the accused was apprehended by the neighbours.
8. Davinder Pandit appeared as PW-3 and has similarly testified. On hearing noise from Ranjeet‟s house (PW-1), he came running and saw that the appellant was giving knife blows to Mithu Rai, Ranjeet‟s father. Mithu Rai was lying on the bed and in the meanwhile Jawahar (PW-11) also reached the spot and tried to apprehend the appellant. He received a knife blow on his right arm. Sakal Dev Pandit was also present at the spot when the villagers came there with stones in their hands. The appellant tried to run away from the spot and hid the knife underneath Malba (garbage). The appellant also tried to take out the handle of the hand pump but was apprehended and overpowered. The police came to the spot and the appellant was handed over to a police constable. The knife was recovered from underneath the Malba (garbage) and also handed over to the police. Knife was taken into possession vide memo Ex.PW3/A. The knife was shown to PW-7 and identified and consequently marked Ex.P1. He (PW-7) has proved the sketch of the knife which was marked Ex.PW3/B. The appellant was arrested in his presence.
9. Davinder Pandit (PW-3) was partly cross-examined on 18th October, 1993, and examination-in-chief was recorded. Subsequently, he had appeared as PW-8 on 16th November, 1993 and was crossexamined on the said date. His primary deposition remains undented.
10. Siyaram (PW-6) has deposed on similar lines and has identified the appellant as the culprit and perpetrator who had given knife blows. PW6 had reached the house of Mithu Rai on hearing noise from there at 3.00 AM at night. Mithu Rai was sleeping and blood was oozing out and the person who caused the injury was running away while brandishing the knife. Public started throwing stones on him and he had seen the culprit throwing the knife in debris. The culprit was overpowered and given beating. Police came and took him away. Knife was recovered from the debris by Devender. material evidence was collected by the police. Incriminating Culprit was Om Prakash, whom PW6 identified in the court. In the cross-examination, he had stated that he had not seen the appellant before and he had not seen the appellant giving knife blows and has seen him bandishing the knife. He identified the knife as P1.
11. The injured eye-witness Jawahar appeared as PW-11. PW11 has deposed that the deceased was his neighbour and the occurrence had taken place in the intervening night of 11th & 12th July, 1991. On hearing noise “catch the thief”, he had rushed out to his house and found that 10 persons were present there. He tried to catch the thief Om Prakash who was brandishing the knife in his hands. In the process his hand got injured. Shakaldev tenant of Mithu Rai was present there. He had also tried to catch the appellant and had suffered injury. The appellant went outside and threw the knife in the debris. The appellant tried to take out handle of the hand pump but the public pelted stones and caught hold of him. Mithu Rai was taken to the hospital but was declared brought dead. PW11 was also medically examined. In the cross-examination, PW11 has stated that he had heard the noise at 3.30 AM and earlier or before the said date, he had never seen Om Prakash and no one was present with Om Prakash. He had accepted that he had not seen Mithu Rai getting hurt or injured but he got injured at the hands of Om Prakash. One of the suggestions given to PW11 was that the appellant was not holding a knife but an iron strip. He deposed that on the basis of the statement given by master Ranjeet (PW-1), Rukka (Ex.PW1/A) was recorded and subsequently the FIR was registered at about 9.35 a.m. In the „Rukka‟ the name of the two witnesses, namely, Sakal Dev Pandit and Jawahar were also mentioned. Assertions and facts stated in the „Rukka‟ are identical to the statements made by PW-1, the eye witness, PW-2, PW3, PW-6 and PW-11. It is possible that the actual stabbing may not
3) and Siyaram (PW-6), but this does not make any difference as they reached the spot within minutes of the act of stabbing and at that time the appellant was present there with the knife in his hand. Appellant tried to flee but was apprehended and the knife was recovered from the garbage.
12. This brings us to the statement of the police officers who had visited the crime scene. SI Puninder Singh (PW15) had stated that on 12th July, 1991, on receipt of DD entry 24A at 5.30 AM, he had gone to DDU Hospital and obtained MLC of deceased Mithu Rai who had expired. He also obtained MLC of Jawahar who had been discharged after treatment. He went to the place of occurrence i.e. at RZ297A Mahavir Enclave at about 6.30 – 6.45 AM and met Ranjeet Kumar (PW1) son of the deceased. Incriminating evidence etc. was collected and seized. He had mentioned that Om Prakash was the accused. Similar statement has been made by HC Ved Prakash PW18 who had stated that on 12th July, 1991 he was posted at PS Dabri. At 5.30 AM, he along with ASI Pulinder Singh went to DDU Hospital from where they came to know that Mithu Rai had died and thereafter they came to the site of crime at about 6 AM. Statement of Ranjeet Kumar (PW1) was recorded by ASI Pulinder Singh who made an endorsement and they went to Police Station for getting the case registered and came back to the site of occurrence at about 10 AM. Incriminating material and evidence at the spot was collected.
13. Another relevant and important police witness is PW13 HC Braham Prakash who was posted as Duty Officer at P.S. Dabri, on 12 th July, 1991. He has deposed that on the said date at 5.30 AM, the appellant was brought before him and he prepared the injury sheet Ex. PW11/A and had sent the appellant for medical examination through Const. Anang Pal and Lali Ram. He was informed that the appellant after giving knife blow to one person was running away but was accosted after stones were thrown at him. On 13th July, 1991, appellant was produced before Metropolitan Magistrate and police remand was taken.
14. The case was investigated by Insp. Kapoor Singh (PW17) who had gone to the site at about 9.30 AM when he met ASI Puninder Singh. He also met the public witnesses and had recorded statements. He had also obtained the MLC of appellant Om Prakash who had been discharged from the hospital. At that time Om Prakash was already in police custody.
15. Constable Anang Pal (PW-11)(sic)stated that he went to the hospital along with Om Prakash with the injury sheet given by the Duty Officer HC Braham Prakash. Appellant was admitted in Safdarjung Hospital and subsequently discharged. He had stated that the appellant was taken at about 5.40 AM to the hospital from PS Dabri and discharged on the same date at about 2.30 PM. He had spoken to the appellant in the hospital.
16. The appellant was severely beaten up and was taken to Safdarjung Hospital at about 7.50 a.m. in the morning. The said MLC marked Ex.CW1/A records that the appellant was conscious and oriented but had suffered injuries on the left forearm and a clean lacerated wound on the left and right hand. He was taken to the hospital by Const. Anang Pal. There were injuries on the other parts of the body as well. X-ray of both the hands and left forearm was done and it was opined that Om Prakash had suffered a fracture on the mid shaft of the left radius and ulna. The appellant had also suffered a fracture on the first proximal of the distal phalynx of the second metacarpal on the left. The clothes worn by the appellant were seized vide seizure memo Ex.PW-3/C.
17. MLC of the appellant Ex. CW-1/A was recorded at about 7.50 AM. There is some time gap between 5.30 AM and 7.50 am i.e. the time mentioned by Const. Anang Pal (PW11) and HC Braham Prakash (PW13) and the MLC. This however can be explained as some time may be taken in commuting and reaching the hospital. Moreover, the time mentioned in the MLC is by different pen whereas individual particulars and details were written in different pen/ink.
18. As per the CFSL report (Ex.PY), blood of human origin was found on the pant, shirt, vest and shoes worn by the appellant. The vest did not give any reaction to ascertain the blood group, but blood group AB was ascertained on the pant, shirt and shoes worn by the appellant. The said blood group AB matched with the blood stained gauze i.e. the blood group of the deceased. Blood of the said group was also found on the Lungi and Pillow, which were seized from the spot.
19. The appellant in his statement under Section 313 of the Code has stated that he was sleeping but thereafter was beaten up by some person, whose name he did not know. He has also stated that he was sleeping in the verandah of Baijnath‟s house where he was living on rent. At about 5 am one or two persons came and inquired about Baijnath. When he refused, they started beating him and thereafter he became unconscious. He stated that he did not know if he was taken to the hospital. He gained consciousness in the hospital and then noticed the police.
20. The Additional Session Judge while recording statement under Section 313 of the appellant, Om Prakash noticed that the prosecution had not bothered to examine and lead evidence on the injuries suffered by Om Prakash. Accordingly, observations were made in the order of the same date. We agree that it was the duty of the prosecution to show and establish the cause of injuries and also prosecute parties, who caused the said injuries, as commission of an offence was made out. However, at this stage, we are not inclined to issue direction for initiation of prosecution. This is because considerable time has lapsed and more importantly the appellant in his Section 313 statement had not specifically named anyone.
21. Injuries suffered by the appellant were grievous and, therefore, FIR should have been registered by the police against the perpetrators. It was also the duty of the police to prosecute the perpetrators who had caused grievous injuries on the appellant after identifying the culprits. This has been a serious lapse and failure of the police. Whenever such facts are brought to the notice of the court, action/appropriate direction should be issued at the initial stage itself. This would be in the interest of justice and to ensure that the guilty are punished.
22. The learned counsel for the appellant is also right in his contention that the other tenant, namely, Moti Lal, whose name is mentioned in the „Rukka‟ Ex.PW1/A was not cited and produced as a witness, but we do not think that for this reason and ground, the prosecution version can be disbelieved in view of the evidence produced and the statement of PW-1, PW-2, PW-3/8, PW-6 and PW11. We do not think that failure to examine Moti Lal is fatal to the prosecution version in view of the ocular and documentary evidence on record.
23. In view of the aforesaid discussion, we confirm the finding recorded by the trial court that the appellant was the perpetrator who had committed the murder under Section 302. He had also caused injuries to Jawahar (PW11). We also affirm and do not see any reason to interfere in the order of sentence for imprisonment for life and sentence of fine of Rs.500/- for the offence under Section 302 IPC. Under Section 324, the appellant was sentenced for rigorous imprisonment for one year which appears to be on higher side but the sentence had to run concurrently, and the appellant has already undergone the said sentence. The appellant was released on suspension of sentence pursuant to the order dated 23 rd September, 1999, after he had undergone more than seven years of imprisonment. He will surrender within one month from the date of this decision to undergo the remaining sentence. The appropriate authorities while considering the question of remission will take into account the grievous injuries suffered by Om Prakash on the date of occurrence which have been proved beyond doubt in form of MLC (Ex. CW-1/A).
24. The appeal is dismissed.-.sd(SANJIV KHANNA) JUDGE -sd(G.P. MITTAL) JUDGE FEBRUARY19 2014 NA/KKB