Sanjeev Kumar Vs. State - Court Judgment

Excerpt:
[k.g. balakrishnan; p. sathasivam; j.m. panchal, jj.]negotiable instruments act, 1881 - sections 138, 139, 118(a) - dishonour of cheque for insufficiency, etc., of funds in the account -- in the present case, the trial court had acquitted the appellant-accused in a case related to the dishonour of a cheque under section 138 of the negotiable instruments act, 1881 [hereinafter `act']. the accused had then issued a cheque bearing no. 0886322, post-dated for 8-2-2001 for rs. 45,000 drawn on syndicate bank, kudremukh branch. consequently, on 8-2-2001, the complainant had presented this cheque through karnataka bank, ranebennur for encashment. the complainant had then issued notice to the accused in this regard on 26-2-2001. it was observed that the accused's failure to reply to the notice sent by the complainant did not attract the presumption under section 139 of the act since the complainant had failed to prove that he had given a hand loan to the accused and that the accused had issued a cheque as alleged. however, on appeal against acquittal, the high court reversed the findings and convicted the appellant-accused. this presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. with regard to the present facts, the high court found that the defence raised by the accused was not probable. in respect of the accused's stand that he had lost a blank cheque bearing his signature, the high court noted that in the instructions sent by the accused to his bank for stopping payment, there is a reference to cheque no. 0886322, dated 20-7-1999. this is in conflict with the complainant's version wherein the accused had given instructions for stopping payment in respect of the same cheque, albeit one which was dated 8-2-2001. the high court also noted that if the accused had indeed lost a blank cheque bearing his signature, the question of his mentioning the date of the cheque as 20-7-1999 could not arise. furthermore, during the cross-examination of the complainant, it was suggested on behalf of the accused that the complainant had the custody of the cheque since 1998. this suggestion indicates that the accused was aware of the fact that the complainant had the cheque, thereby weakening his claim of having lost a blank cheque. once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under section 139 of the negotiable instruments act has to be raised by the court in favour of the complainant. the presumption referred to in section 139 of the n.i. act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. the defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. presumptions as to negotiable instruments. the purpose of a post-dated cheque is to provide some accommodation to the drawer of the cheque. existence of legally recoverable debt is not a matter of presumption under section 139 of the act. the courts below, as noticed hereinbefore, proceeded on the basis that section 139 raises a presumption in regard to existence of a debt also. apart from not raising a probable defence, the appellant-accused was not able to contest the existence of a legally enforceable debt or liability. the appellant engaged the services of the respondent-engineer for supervising the construction of his house. the appellant requested the respondent for a hand loan to meet the construction expenses. in view of the acquaintance, the respondent paid the same by way of cash. the appellant issued a cheque for repayment of the said amount. the respondent presented the cheque for encashment. the bank issued a return memo stating that the payment had been stopped by the drawer. thereafter, the appellant did not honour the cheque within the statutorily prescribed period and also did not reply to the notice u/s. 138 of the negotiable instruments act, 1881. the respondent filed a complaint against the appellant for offence punishable u/s.138 of the act. the trial court acquitted the appellant u/s.138 in view of some discrepancies in the complainant's version. the high court holding that the appellant did not raise a probable defence to rebut the statutory presumption, convicted the appellant for commission of offence u/s. 138 of the act and directed to pay fine of rs. 75,000/-. hence the present appeal. disposing of the appeal, the court held: 1. ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in s.138 of the negotiable instruments act, 1881 have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by s.139 of the act. with respect to the facts of the instant case, it must be clarified that contrary to the trial court's finding, s.138 of the act can indeed be attracted when a cheque is dishonoured on account of `stop payment' instructions sent by the accused to his bank in respect of a post- dated cheque, irrespective of insufficiency of funds in the account. [para 9] [518-d-f] goa plast (pvt.) ltd. v. chico ursula d'souza (2003) 3 scc 232, referred to. 2.1. the presumption mandated by s.139 of the act does indeed include the existence of a legally enforceable debt or liability. this is in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. however, there can be no doubt that there is an initial presumption which favours the complainant. section 139 of the act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. while s.138 of the act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption u/s. 139 is a device to prevent undue delay in the course of litigation. however, it must be remembered that the offence made punishable by s.138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. in such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. in the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. when an accused has to rebut the presumption under s.139, the standard of proof for doing so is that of `preponderance of probabilities'. therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. [para 14] [525-g; 526-a-g] 2.2. the high court's view that the accused did not raise a probable defence is accepted. the defence of the loss of a blank cheque was taken up belatedly and the accused had mentioned a different date in the `stop payment' instructions to his bank. the instructions to `stop payment' had not even mentioned that the cheque had been lost. a perusal of the trial record also shows that the accused appeared to be aware of the fact that the cheque was with the complainant. furthermore, the very fact that the accused had failed to reply to the statutory notice u/s.138 of the act leads to the inference that there was merit in the complainant's version. apart from not raising a probable defence, the appellant-accused was not able to contest the existence of a legally enforceable debt or liability. the fact that the accused had made regular payments to the complainant in relation to the construction of his house does not preclude the possibility of the complainant having spent his own money for the same purpose. as per the record of the case, there was a slight discrepancy in the complainant's version, in so far as it was not clear whether the accused had asked for a hand loan to meet the construction-related expenses or whether the complainant had incurred the said expenditure over a period of time. either way, the complaint discloses the prima facie existence of a legally enforceable debt or liability since the complainant has maintained that his money was used for the construction-expenses. since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant. thus, there is no reason to interfere with the final order of the high court which recorded a finding of conviction against the appellant. 1. whether the reporters of local papers may be allowed to see the judgment?2. to be referred to reporter or not?3. whether the judgment should be reported in the digest? 1. believing that deepak pw-13 was an eye-witness to the incident and accepting his testimony as creditworthy; further finding strong incriminating circumstantial evidence through the percipient testimonial evidence of hc ram charan pw-10 and ct.jaipal pw-15, vide impugned judgment and order dated 5.9.1998, the appellant has been convicted for the offence of having murdered brij mohan @bobby on 14.9.1995 at around 1:30/1:45 pm.2. let us note the facts leading to the registration of fir ex.pw-12/a (we find that on the fir exhibit mark written is ex.pw/a). vide dd no.21 dated 14.9.1995, ex.pw-8/a, duly proved at the trial through the testimony of its scribe ct.raj kumar pw-8, at the police picket trilokpuri it was recorded in the daily diary that pursuant to information flashed by the police control room through lady constable asha at 2:25 pm, it was informed that at block no.36, gurudwara road, trilokpuri a boy has been stabbed and the assailant has been apprehended in block no.22, trilokpuri by hc ram charan and police be sent. at about 2:45 pm, as recorded vide dd no.22, ex.pw-8/b, proved at the trial by the scribe thereof, ct.raj kumar pw-8, it was recorded that the duty constable at jpn hospital had informed through wireless that one brij mohan s/o jagdish prasad was got admitted at the hospital in an injured condition by his brother pramod kumar and that the injured was declared brought dead.3. relevant would it be to note that ct.raj kumar has duly proved dd no.21 and dd no.22. his testimony has not been challenged evidenced by the fact that when tendered for being cross-examined, counsel for the appellant did not cross- examine ct.raj kumar. thus, it conclusively stands proved that information was conveyed to the police post at 2:25 pm that the person who had stabbed a boy in block 36, gurudwara road, trilokpuri had been apprehended by hc ram charan a few blocks away.4. indeed, brij mohan s/o jagdish prasad was brought to jpn hospital and as recorded on the mlc ex.pw-16/a, proved at the trial by dr.m.s.chopra who identified the signatures of dr.dutta, the author of the mlc as dr.m.s.chopra claimed to have seen dr.dutta write and sign during official duties, it stands recorded that at 2:00 pm on 14.9.1995 brij mohan s/o jagdish prasad r/o 36 trilokpuri was brought to the hospital by pramod kumar s/o jagdish prasad a resident of the same place as the patient, who was declared dead on arrival. it stands recorded therein that there were 3 stab injuries on the chest as also various other injuries on the head, neck and back.5. it be noted that dr.m.s.chopra has not been cross- examined with respect to his testimony and he having duly proved the mlc ex.pw-16/a, has not been quizzed qua the said mlc.6. the fir in question has been registered on the basis of the statement ex.pw-13/a made by deepak and upon which the endorsement ex.pw-17/a has been made by insp.dharam pal singh pw-17, who, as deposed to by him was at block no. 27 trilok puri at 2:30pm when he received information that a stabbing incident had taken place near gurudwara in block no.36 and the assailant had been caught and was in the custody of hc ram charan and another constable, thus he proceeded to block no.36. as mentioned in the endorsement ex.pw-17/a it was dispatched from the spot at 4:10 pm.7. it may be noted that the statement ex.pw-13/a and the endorsement ex.pw-17/a spans 2 pages, legibly written, having about 15 words in each line and 42 lines on the first page and 21 lines on the second. it would have approximately 915 words written thereon and one can safely estimate that it would have taken not less than 30 minutes to write the two.8. it may be noted that while being cross-examined no suggestion has been made to insp.dharam pal pw-17 that the statement ex.pw-13/a and the endorsement ex.pw-17/a is not in his handwriting.9. it stands recorded in ex.pw-13/a that the statement was made by deepak s/o shripal sharma r/o 36/53-54 trilokpuri, delhi. as per the statement deepak told insp.dharam pal that along with his mother he was residing with his maternal uncles brij mohan, pramod kumar, rajender prasad and jitender kumar at the address disclosed and was a student of class-ix in the government boys senior school, block-27, trilokpuri. that in the year 1994 nanhe @munna r/o 26/70 trilokpuri was murdered and in that connection, rajender, kunwar pal both residents of block 36 trilokpuri and my maternal uncle brij mohan were arrested and sent to jail. after their acquittal brij mohan came to the house on 15.7.1995 and after that rajender and his brother sanjeev many times threatened brij mohan for having falsely implicated rajender in munna's murder. on the evening of 12.9.1995 brij mohan had a scuffle with sanjeev near mother dairy booth. his uncle brij mohan had gone with his tsr to indira market, block 36, trilokpuri to have a punctured tyre repair and he had gone to the same market to buy copy and books when at about 1:45 pm near the gurudwara on the main road he saw sanjeev pushing his uncle and yelling "aaj mauka mila hai ab tujhe bachaney waala nahi aayega" and took out a knife from the right pocket of his trousers and inflicted several blows on the chest and temple region of his uncle who fell on the ground in a pool of blood.as he ran towards his uncle raging an alarm, sanjeev ran towards block 26 with blood stained chhuri in his hand and he i.e. deepak ran to his house to inform his family members who took brij mohan, in a tsr to jpn hospital.10. it stands recorded in the endorsement ex.pw-17/a as under:-"hon'ble duty officer trilokpuri delhi. it is stated that during the patrolling i was present at 13 block trilokpuri and at about 2.27 pm i received a wireless message that in block 36 gurudwara road, trilokpuri one boy has stabbed somebody and the assailant has been captured at 22 block trilokpuri by head constable ramcharan and arup. for receiving this information when i reached near jhughis in block 26 trilokpuri main road there head constable ram charan no.66/8 and constable jaipal no.1323/8 presented accused sanjeev @bittoo, whose name and address was known after enquiry, who was holding blood stained bented churri in his right hand and blood was on his clothes and shoes as well on his both hands. when i reached near by about 50 yards in 36 block trilokpuri in front of indira market on main road there was blood on road and deceased was taken to unknown hospital."11. it may be noted that as per the post-mortem report ex.pw-9/a of the deceased, proved through the testimony of the author thereof, dr.harish, who we note has not been cross- examined, in spite of opportunity granted, 4 incised wounds were suffered by the deceased on his head and on the face in front of the left ear lobe, abrasions and contusions and lacerations were found on the hand and the neck. 4 penetrating incised wound injuries on the chest and 1 on the back of the shoulder have also been recorded.12. cause of death is haemorrhagic shock consequent upon injury no.10 and 11, which we note pierced the right lung and the heart.13. injury no.1, 4, 5 and 6 on the face near the ear and the head were opined to be caused by some sharp pointed object and injury no.10, 11, 12 and 13 were opined to be caused by a sharp, double-edged cutting weapon. injury no.10 and 11 were opined to be sufficient in the ordinary course of nature to cause death.14. it would be apparent to the reader of the present decision that the case required hardly any investigation, it was all a question whether the witnesses supported the case of the prosecution.15. deepak pw-13 deposed in line with his statement ex.pw- 13/a, contents whereof have been briefly noted by us herein above and stated that the statement ex.pw-13/a was recorded at the spot when the police came after some time of the incident by which time his uncle had been removed to the hospital. he disclosed that he had seen the incident from a distance of 30-40 yards and that a crowd had gathered at some distance. he stated that the police came after 5 10 minutes after his uncle had been removed to the hospital and by which time the accused, holding a bent blade of a knife was also brought to the spot. that his shirt ex.p-5 was taken into possession by the police and the pant ex.p-3 and the t-shirt ex.p-2 worn by the accused were also taken into possession by the police in his presence.16. relevant would it be to note that deepak was cross- examined at length and indeed, nothing has been brought out worthy of being noted which could discredit his testimony.17. hc ram charan pw-10 and ct.jaipal pw-15 deposed that they were on duty and were proceeding towards the gurudwara near block 26, trilokpuri and when they were near super bazar main road saw the accused running in a perplexed condition with a knife ex.p-1 in his hand, front blade portion whereof was bent. the blade had blood thereon. they caught the accused who told them about the incident and when they were still enquiring, insp.dharam pal and his staff came. insp.dharam pal made a sketch ex.pw-10/b of the knife and seized the same as per seizure memo ex.pw-10/a. the inspector recorded the statement of deepak sharma and made an endorsement thereunder and was handed over to ct.ram phool for fir to be registered who left the spot at 4:00 pm.18. the 2 witnesses further deposed to the spot proceedings conducted with respect to the seizures effected at the spot and deposed on the same lines as deepak qua the t-shirt and the pant of the accused being seized as also that of deepak.19. insp.dharam pal singh pw-17 deposed on similar lines.20. the fsl report ex.pa-1 establishes that the t-shirt and shirt seized at the spot which were worn by the accused as also the shirt of deepak was detected with human blood of the same group as that of the deceased. even the knife ex.p-1 was detected with human blood of the same group as that of the deceased.21. the prosecution has not proved the fir being sent to the area magistrate as required by section 157 cr.p.c.22. this has been latched upon by the learned counsel for the appellant to urge that deepak was a planted witness and that the time recorded on the fir as the time when it was registered has been ante timed. extending the argument further, learned counsel urged that it was a working day and at 1:30 pm, the stated time of the incident, deepak should have been in his school. conceding that there was nothing in the cross-examination of deepak which could falsify him, counsel relied upon deepak's conduct of not running to help his uncle. counsel further highlighted that deepak admitted having watched the incident from a distance of about 40 yards and that a crowd had gathered at the spot and wherefrom it was urged that it would be difficult for deepak to have identified the assailant.23. before analyzing the submissions, we may note that pramod kumar pw-4, the brother of the deceased deposed that his brother had gone to the market and at around 2:00 pm, deepak informed that brij mohan had been stabbed. he i.e. pramod kumar, his brother rajender and deepak went to block 36, near the gurudwara where brij mohan was lying in blood and they removed him to the hospital where the doctor declared him dead. that pertaining to a murder in anand vihar, rajender, real brother of the accused was arrested by the police and rajender and the accused suspected that brij mohan had named rajender for the said murder and this was the reason for enmity. he deposed that when he came to the spot police took into possession his vest which was seized vide memo ex.pw-4/a. it may be noted that nothing has been brought out in the cross-examination of the witness which could discredit him.24. it is true that the prosecution has been negligent in not leading evidence to establish that a copy of the fir in question was delivered promptly to the area magistrate, but that does not mean that we should not look to other evidence wherefrom the time when deepak's statement was recorded at the spot and pursuant whereto the fir was registered can be gathered.25. now, the effect of the fir being ante timed could be evidence being planted. but, we note that much before the fir was registered, at 2:25 pm on 14.9.1995 it stands recorded in dd no.21, ex.pw-8/a that the assailant who had stabbed somebody near gurudwara in block no.36 trilokpuri had been apprehended by hc ram charan. as noted herein above the scribe of the dd entry was not cross-examined on the contents thereof. thus, virtually contemporaneous with the time when the crime was committed, we have unimpeachable evidence of it being recorded in the official records that hc ram charan had apprehended the accused who had stabbed somebody near the gurudwara at block no.36, trilokpuri. hc ram charan pw-10 and ct.jaipal pw-15 have deposed having apprehended the accused at the super bazar near block no.26, trilokpuri i.e. at a spot quite near the place of the incident and their testimony establishes that the accused was perplexed, had a bent knife ex.p-1 having blood thereon and his clothes having blood stains. it is apparent that the appellant was caught near the place of the crime and nothing has been shown to us from the cross-examination of the 2 police officers that they could be possibly deposing falsely.26. it is in this background we have to consider the fact that deepak was aged 15 years when the incident took place and his conduct of running to his house nearby to summon a rescue for his uncle is not such unreasonable conduct wherefrom he can be discredited. a perplexed young boy, seeing nobody from the crowd reaching to help his uncle, may be justified in running to his house to summon his other uncles. in a panic situation rationality evidenced by a reasonable man in a normal situation cannot be expected.27. it is not unknown for children to bunk school and therefore it is inconsequential that the time and the date of the offence was when deepak was expected to be in his school. we note the testimony of deepak that his shirt ex.p-5 was taken into possession by the police has not been challenged and the fact that on the shirt human blood of the same group as that of the deceased was detected is proof of the fact that when the deceased was injured, deepak was nearby, immediately or soon thereafter. now, deepak has explained his shirt being stained with the blood of his uncle inasmuch as he has stated that when he returned to the spot with his uncles all of them put the deceased inside a tsr and removed him to the hospital. it is apparent that at that point of time deepak's shirt got stained with the blood of his uncle. that pramod kumar pw-4 took the deceased to the hospital is evidenced by the mlc ex.pw-16/a and this establishes that at some point of time prior thereto he was with his brother and removed him from the spot and took him to the hospital. on oath pramod kumar has stated that he reached the spot where his brother was injured on being informed by deepak. this testimony has not been challenged. thus, it was deepak who had summoned a rescue for his injured uncle.28. the post-mortem of the deceased was conducted the next day i.e. on 15.9.1995 and it assumes importance that deepak's statement was recorded on 14.9.1995. in his statement he had disclosed that his uncle was stabbed on the face, head and chest and we note that the post-mortem report also evidenced deceased being injured on the said part of his body. deepak telling the body parts where his uncle was attacked and the same being corroborated through the post- mortem report is an indication of deepak having seen what he told.29. that deepak stated that he saw the incident from a distance of about 40 yards was a distance stated by approximation and not that deepak measured the same using a measuring tape. the distance could be 30 yards, it could also be 50 yards. the time of the incident is around 1:30 pm and the date is 14.9.1995. no suggestion has been given to any witness that it was a cloudy day. thus, one can safely presume that it was bright sunshine which had lit the area and one could recognize known persons from the distance of 50 yards. the testimony of deepak and his uncle pw-4 clearly establish that the accused was known to deepak and deepak could certainly have recognized him from a distance of 30 50 yards. that there was a crowd at the spot, does not mean that the crowd was blocking the vision of deepak. it be noted that as per deepak the crowd was nearby. no questions have been put to deepak as to the exact spot where the crowd had gathered and thus no speculative argument can be advanced to discredit deepak.30. it was then urged that the knife ex.p-1 was not sent to the doctor who conducted the post-mortem of the deceased to elicit an opinion whether the injuries on the deceased could be caused by the knife in question. this obviously is a lapse of the investigating officer and sufficient would it be for us to record that if there is credible evidence of unimpeachable character, lapses by the investigating officer cannot be used to throw out the case of the prosecution.31. it was then urged that as per the opinion of the doctor who conducted the post-mortem, injuries 1, 4, 5 and 6 on the person of the deceased were caused by a sharp pointed object.32. it be noted that injury no.1 is on the left back of the head directly above the left ear. injury no.4 is on the left ear, communicating with the ear meatus. injury no.5 is on the left side of the face, just in front of the left ear lobe and injury no.6 is on the left face, 1 cm inner to injury no.5.33. the situs of the injuries shows that they are on the part of the body having virtually no muscle or fat mass. the bare minimum epidermis tissue with the skin tissue above would obviously receive a wound caused by a sharp pointed object if the same is struck vertically and not horizontally. if blows are inflicted horizontally they would result in incised wounds. now, the sketch ex.pw-10/b of the knife ex.p-1 which was recovered from the hand of the appellant when he was apprehended near the spot shows the blade, in a bent condition; the blade tapering towards the front i.e. being a pointed knife.34. a feeble attempt was made to urge that the intention of the appellant was to grievously injure the deceased evidenced by the fact that of the 14 injuries, 10 are on the neck, the face and the head.35. it may be noted that there are 4 injuries on the other parts of the body, 1 on the left back shoulder and 3 in the chest region. the injuries on the deceased shows that he was caught by the scuff of his neck, obviously to demobilize him and repeated blows were struck. that 3 blows were directed towards the chest and with sufficient force evidenced by the fact that as per the post-mortem report and testimony of the doctor, the fatal injuries cut 10 cm deep inside the body. there is hardly any scope to debate that the intention was not to murder the deceased.36. the motive for the crime has emerged through the testimony of pw-4 and pw-13 i.e. the accused harbouring a grouse that the deceased was responsible for his brother being falsely implicated in a prior murder case. we may note that what has happened is that when brij mohan was arrested in a murder case, in his disclosure statement he had named rajender, the brother of the appellant as his associate and as a result thereof rajender was also arrested in the said case and had to remain in jail along with the deceased, till both of them were acquitted.37. the totality of the evidence unequivocally establishes beyond reasonable doubt that it is the appellant who has committed the murder of the deceased. the percipient evidence of deepak and the testimony of hc ram charan and ct.jaipal is akin to what is conventionally understood as res gestate evidence. in a case of percipient evidence, which is direct evidence, the witness acts as the eye of the court and if he is believed, no further inferences have to be drawn.38. the appeal is dismissed. the bail bond and surety bond furnished by the appellant are cancelled. the appellant is directed to surrender and suffer the remaining sentence, which we note is to undergo imprisonment for life.

Judgment:
1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported in the Digest?

1. Believing that Deepak PW-13 was an eye-witness to the incident and accepting his testimony as creditworthy; further finding strong incriminating circumstantial evidence through the percipient testimonial evidence of HC Ram Charan PW-10 and Ct.Jaipal PW-15, vide impugned judgment and order dated 5.9.1998, the appellant has been convicted for the offence of having murdered Brij Mohan @Bobby on 14.9.1995 at around 1:30/1:45 PM.

2. Let us note the facts leading to the registration of FIR Ex.PW-12/A (we find that on the FIR exhibit mark written is Ex.PW/A). Vide DD No.21 dated 14.9.1995, Ex.PW-8/A, duly proved at the trial through the testimony of its scribe Ct.Raj Kumar PW-8, at the police picket Trilokpuri it was recorded in the Daily Diary that pursuant to information flashed by the Police Control Room through Lady Constable Asha at 2:25 PM, it was informed that at Block No.36, Gurudwara Road, Trilokpuri a boy has been stabbed and the assailant has been apprehended in Block No.22, Trilokpuri by HC Ram Charan and police be sent. At about 2:45 PM, as recorded vide DD No.22, Ex.PW-8/B, proved at the trial by the scribe thereof, Ct.Raj Kumar PW-8, it was recorded that the Duty Constable at JPN Hospital had informed through wireless that one Brij Mohan S/o Jagdish Prasad was got admitted at the hospital in an injured condition by his brother Pramod Kumar and that the injured was declared brought dead.

3. Relevant would it be to note that Ct.Raj Kumar has duly proved DD No.21 and DD No.22. His testimony has not been challenged evidenced by the fact that when tendered for being cross-examined, counsel for the appellant did not cross- examine Ct.Raj Kumar. Thus, it conclusively stands proved that information was conveyed to the police post at 2:25 PM that the person who had stabbed a boy in Block 36, Gurudwara Road, Trilokpuri had been apprehended by HC Ram Charan a few blocks away.

4. Indeed, Brij Mohan S/o Jagdish Prasad was brought to JPN Hospital and as recorded on the MLC Ex.PW-16/A, proved at the trial by Dr.M.S.Chopra who identified the signatures of Dr.Dutta, the author of the MLC as Dr.M.S.Chopra claimed to have seen Dr.Dutta write and sign during official duties, it stands recorded that at 2:00 PM on 14.9.1995 Brij Mohan S/o Jagdish Prasad R/o 36 Trilokpuri was brought to the hospital by Pramod Kumar S/o Jagdish Prasad a resident of the same place as the patient, who was declared dead on arrival. It stands recorded therein that there were 3 stab injuries on the chest as also various other injuries on the head, neck and back.

5. It be noted that Dr.M.S.Chopra has not been cross- examined with respect to his testimony and he having duly proved the MLC Ex.PW-16/A, has not been quizzed qua the said MLC.

6. The FIR in question has been registered on the basis of the statement Ex.PW-13/A made by Deepak and upon which the endorsement Ex.PW-17/A has been made by Insp.Dharam Pal Singh PW-17, who, as deposed to by him was at Block No. 27 Trilok puri at 2:30pm when he received information that a stabbing incident had taken place near Gurudwara in Block No.36 and the assailant had been caught and was in the custody of HC Ram Charan and another constable, thus he proceeded to Block No.36. As mentioned in the endorsement Ex.PW-17/A it was dispatched from the spot at 4:10 PM.

7. It may be noted that the statement Ex.PW-13/A and the endorsement Ex.PW-17/A spans 2 pages, legibly written, having about 15 words in each line and 42 lines on the first page and 21 lines on the second. It would have approximately 915 words written thereon and one can safely estimate that it would have taken not less than 30 minutes to write the two.

8. It may be noted that while being cross-examined no suggestion has been made to Insp.Dharam Pal PW-17 that the statement Ex.PW-13/A and the endorsement Ex.PW-17/A is not in his handwriting.

9. It stands recorded in Ex.PW-13/A that the statement was made by Deepak S/o Shripal Sharma R/o 36/53-54 Trilokpuri, Delhi. As per the statement Deepak told Insp.Dharam Pal that along with his mother he was residing with his maternal uncles Brij Mohan, Pramod Kumar, Rajender Prasad and Jitender Kumar at the address disclosed and was a student of Class-IX in the Government Boys Senior School, Block-27, Trilokpuri. That in the year 1994 Nanhe @Munna R/o 26/70 Trilokpuri was murdered and in that connection, Rajender, Kunwar Pal both residents of Block 36 Trilokpuri and my maternal uncle Brij Mohan were arrested and sent to jail. After their acquittal Brij Mohan came to the house on 15.7.1995 and after that Rajender and his brother Sanjeev many times threatened Brij Mohan for having falsely implicated Rajender in Munna's murder. On the evening of 12.9.1995 Brij Mohan had a scuffle with Sanjeev near Mother Dairy Booth. His uncle Brij Mohan had gone with his TSR to Indira Market, Block 36, Trilokpuri to have a punctured tyre repair and he had gone to the same market to buy copy and books when at about 1:45 PM near the Gurudwara on the main road he saw Sanjeev pushing his uncle and yelling "Aaj mauka mila hai ab tujhe bachaney waala nahi aayega" and took out a knife from the right pocket of his trousers and inflicted several blows on the chest and temple region of his uncle who fell on the ground in a pool of blood.

As he ran towards his uncle raging an alarm, Sanjeev ran towards Block 26 with blood stained chhuri in his hand and he i.e. Deepak ran to his house to inform his family members who took Brij Mohan, in a TSR to JPN Hospital.

10. It stands recorded in the endorsement Ex.PW-17/A as under:-

"Hon'ble Duty Officer Trilokpuri Delhi. It is stated that during the patrolling I was present at 13 Block Trilokpuri and at about 2.27 PM I received a wireless message that in Block 36 Gurudwara Road, Trilokpuri one boy has stabbed somebody and the assailant has been captured at 22 Block Trilokpuri by Head Constable Ramcharan and Arup. For receiving this information when I reached near jhughis in Block 26 Trilokpuri Main road there Head Constable Ram Charan No.66/8 and Constable Jaipal No.1323/8 presented accused Sanjeev @Bittoo, whose name and address was known after enquiry, who was holding blood stained bented churri in his right hand and blood was on his clothes and shoes as well on his both hands. When I reached near by about 50 yards in 36 block Trilokpuri in front of Indira Market on Main Road there was blood on road and deceased was taken to unknown hospital."

11. It may be noted that as per the post-mortem report Ex.PW-9/A of the deceased, proved through the testimony of the author thereof, Dr.Harish, who we note has not been cross- examined, in spite of opportunity granted, 4 incised wounds were suffered by the deceased on his head and on the face in front of the left ear lobe, abrasions and contusions and lacerations were found on the hand and the neck. 4 penetrating incised wound injuries on the chest and 1 on the back of the shoulder have also been recorded.

12. Cause of death is haemorrhagic shock consequent upon injury No.10 and 11, which we note pierced the right lung and the heart.

13. Injury No.1, 4, 5 and 6 on the face near the ear and the head were opined to be caused by some sharp pointed object and injury No.10, 11, 12 and 13 were opined to be caused by a sharp, double-edged cutting weapon. Injury No.10 and 11 were opined to be sufficient in the ordinary course of nature to cause death.

14. It would be apparent to the reader of the present decision that the case required hardly any investigation, it was all a question whether the witnesses supported the case of the prosecution.

15. Deepak PW-13 deposed in line with his statement Ex.PW- 13/A, contents whereof have been briefly noted by us herein above and stated that the statement Ex.PW-13/A was recorded at the spot when the police came after some time of the incident by which time his uncle had been removed to the hospital. He disclosed that he had seen the incident from a distance of 30-40 yards and that a crowd had gathered at some distance. He stated that the police came after 5 10 minutes after his uncle had been removed to the hospital and by which time the accused, holding a bent blade of a knife was also brought to the spot. That his shirt Ex.P-5 was taken into possession by the police and the pant Ex.P-3 and the T-shirt Ex.P-2 worn by the accused were also taken into possession by the police in his presence.

16. Relevant would it be to note that Deepak was cross- examined at length and indeed, nothing has been brought out worthy of being noted which could discredit his testimony.

17. HC Ram Charan PW-10 and Ct.Jaipal PW-15 deposed that they were on duty and were proceeding towards the Gurudwara near Block 26, Trilokpuri and when they were near Super Bazar Main Road saw the accused running in a perplexed condition with a knife Ex.P-1 in his hand, front blade portion whereof was bent. The blade had blood thereon. They caught the accused who told them about the incident and when they were still enquiring, Insp.Dharam Pal and his staff came. Insp.Dharam Pal made a sketch Ex.PW-10/B of the knife and seized the same as per seizure memo Ex.PW-10/A. The Inspector recorded the statement of Deepak Sharma and made an endorsement thereunder and was handed over to Ct.Ram Phool for FIR to be registered who left the spot at 4:00 PM.

18. The 2 witnesses further deposed to the spot proceedings conducted with respect to the seizures effected at the spot and deposed on the same lines as Deepak qua the T-shirt and the pant of the accused being seized as also that of Deepak.

19. Insp.Dharam Pal Singh PW-17 deposed on similar lines.

20. The FSL report Ex.PA-1 establishes that the T-shirt and shirt seized at the spot which were worn by the accused as also the shirt of Deepak was detected with human blood of the same group as that of the deceased. Even the knife Ex.P-1 was detected with human blood of the same group as that of the deceased.

21. The prosecution has not proved the FIR being sent to the Area Magistrate as required by Section 157 Cr.P.C.

22. This has been latched upon by the learned counsel for the appellant to urge that Deepak was a planted witness and that the time recorded on the FIR as the time when it was registered has been ante timed. Extending the argument further, learned counsel urged that it was a working day and at 1:30 PM, the stated time of the incident, Deepak should have been in his school. Conceding that there was nothing in the cross-examination of Deepak which could falsify him, counsel relied upon Deepak's conduct of not running to help his uncle. Counsel further highlighted that Deepak admitted having watched the incident from a distance of about 40 yards and that a crowd had gathered at the spot and wherefrom it was urged that it would be difficult for Deepak to have identified the assailant.

23. Before analyzing the submissions, we may note that Pramod Kumar PW-4, the brother of the deceased deposed that his brother had gone to the market and at around 2:00 PM, Deepak informed that Brij Mohan had been stabbed. He i.e. Pramod Kumar, his brother Rajender and Deepak went to Block 36, Near the Gurudwara where Brij Mohan was lying in blood and they removed him to the hospital where the doctor declared him dead. That pertaining to a murder in Anand Vihar, Rajender, real brother of the accused was arrested by the police and Rajender and the accused suspected that Brij Mohan had named Rajender for the said murder and this was the reason for enmity. He deposed that when he came to the spot police took into possession his vest which was seized vide memo Ex.PW-4/A. It may be noted that nothing has been brought out in the cross-examination of the witness which could discredit him.

24. It is true that the prosecution has been negligent in not leading evidence to establish that a copy of the FIR in question was delivered promptly to the Area Magistrate, but that does not mean that we should not look to other evidence wherefrom the time when Deepak's statement was recorded at the spot and pursuant whereto the FIR was registered can be gathered.

25. Now, the effect of the FIR being ante timed could be evidence being planted. But, we note that much before the FIR was registered, at 2:25 PM on 14.9.1995 it stands recorded in DD No.21, Ex.PW-8/A that the assailant who had stabbed somebody near Gurudwara in Block No.36 Trilokpuri had been apprehended by HC Ram Charan. As noted herein above the scribe of the DD entry was not cross-examined on the contents thereof. Thus, virtually contemporaneous with the time when the crime was committed, we have unimpeachable evidence of it being recorded in the official records that HC Ram Charan had apprehended the accused who had stabbed somebody near the Gurudwara at Block No.36, Trilokpuri. HC Ram Charan PW-10 and Ct.Jaipal PW-15 have deposed having apprehended the accused at the Super Bazar near Block No.26, Trilokpuri i.e. at a spot quite near the place of the incident and their testimony establishes that the accused was perplexed, had a bent knife Ex.P-1 having blood thereon and his clothes having blood stains. It is apparent that the appellant was caught near the place of the crime and nothing has been shown to us from the cross-examination of the 2 police officers that they could be possibly deposing falsely.

26. It is in this background we have to consider the fact that Deepak was aged 15 years when the incident took place and his conduct of running to his house nearby to summon a rescue for his uncle is not such unreasonable conduct wherefrom he can be discredited. A perplexed young boy, seeing nobody from the crowd reaching to help his uncle, may be justified in running to his house to summon his other uncles. In a panic situation rationality evidenced by a reasonable man in a normal situation cannot be expected.

27. It is not unknown for children to bunk school and therefore it is inconsequential that the time and the date of the offence was when Deepak was expected to be in his school. We note the testimony of Deepak that his shirt Ex.P-5 was taken into possession by the police has not been challenged and the fact that on the shirt human blood of the same group as that of the deceased was detected is proof of the fact that when the deceased was injured, Deepak was nearby, immediately or soon thereafter. Now, Deepak has explained his shirt being stained with the blood of his uncle inasmuch as he has stated that when he returned to the spot with his uncles all of them put the deceased inside a TSR and removed him to the hospital. It is apparent that at that point of time Deepak's shirt got stained with the blood of his uncle. That Pramod Kumar PW-4 took the deceased to the hospital is evidenced by the MLC Ex.PW-16/A and this establishes that at some point of time prior thereto he was with his brother and removed him from the spot and took him to the hospital. On oath Pramod Kumar has stated that he reached the spot where his brother was injured on being informed by Deepak. This testimony has not been challenged. Thus, it was Deepak who had summoned a rescue for his injured uncle.

28. The post-mortem of the deceased was conducted the next day i.e. on 15.9.1995 and it assumes importance that Deepak's statement was recorded on 14.9.1995. In his statement he had disclosed that his uncle was stabbed on the face, head and chest and we note that the post-mortem report also evidenced deceased being injured on the said part of his body. Deepak telling the body parts where his uncle was attacked and the same being corroborated through the post- mortem report is an indication of Deepak having seen what he told.

29. That Deepak stated that he saw the incident from a distance of about 40 yards was a distance stated by approximation and not that Deepak measured the same using a measuring tape. The distance could be 30 yards, it could also be 50 yards. The time of the incident is around 1:30 PM and the date is 14.9.1995. No suggestion has been given to any witness that it was a cloudy day. Thus, one can safely presume that it was bright sunshine which had lit the area and one could recognize known persons from the distance of 50 yards. The testimony of Deepak and his uncle PW-4 clearly establish that the accused was known to Deepak and Deepak could certainly have recognized him from a distance of 30 50 yards. That there was a crowd at the spot, does not mean that the crowd was blocking the vision of Deepak. It be noted that as per Deepak the crowd was nearby. No questions have been put to Deepak as to the exact spot where the crowd had gathered and thus no speculative argument can be advanced to discredit Deepak.

30. It was then urged that the knife Ex.P-1 was not sent to the doctor who conducted the post-mortem of the deceased to elicit an opinion whether the injuries on the deceased could be caused by the knife in question. This obviously is a lapse of the investigating officer and sufficient would it be for us to record that if there is credible evidence of unimpeachable character, lapses by the Investigating Officer cannot be used to throw out the case of the prosecution.

31. It was then urged that as per the opinion of the doctor who conducted the post-mortem, injuries 1, 4, 5 and 6 on the person of the deceased were caused by a sharp pointed object.

32. It be noted that injury No.1 is on the left back of the head directly above the left ear. Injury No.4 is on the left ear, communicating with the ear meatus. Injury No.5 is on the left side of the face, just in front of the left ear lobe and injury No.6 is on the left face, 1 cm inner to injury No.5.

33. The situs of the injuries shows that they are on the part of the body having virtually no muscle or fat mass. The bare minimum epidermis tissue with the skin tissue above would obviously receive a wound caused by a sharp pointed object if the same is struck vertically and not horizontally. If blows are inflicted horizontally they would result in incised wounds. Now, the sketch Ex.PW-10/B of the knife Ex.P-1 which was recovered from the hand of the appellant when he was apprehended near the spot shows the blade, in a bent condition; the blade tapering towards the front i.e. being a pointed knife.

34. A feeble attempt was made to urge that the intention of the appellant was to grievously injure the deceased evidenced by the fact that of the 14 injuries, 10 are on the neck, the face and the head.

35. It may be noted that there are 4 injuries on the other parts of the body, 1 on the left back shoulder and 3 in the chest region. The injuries on the deceased shows that he was caught by the scuff of his neck, obviously to demobilize him and repeated blows were struck. That 3 blows were directed towards the chest and with sufficient force evidenced by the fact that as per the post-mortem report and testimony of the doctor, the fatal injuries cut 10 cm deep inside the body. There is hardly any scope to debate that the intention was not to murder the deceased.

36. The motive for the crime has emerged through the testimony of PW-4 and PW-13 i.e. the accused harbouring a grouse that the deceased was responsible for his brother being falsely implicated in a prior murder case. We may note that what has happened is that when Brij Mohan was arrested in a murder case, in his disclosure statement he had named Rajender, the brother of the appellant as his associate and as a result thereof Rajender was also arrested in the said case and had to remain in jail along with the deceased, till both of them were acquitted.

37. The totality of the evidence unequivocally establishes beyond reasonable doubt that it is the appellant who has committed the murder of the deceased. The percipient evidence of Deepak and the testimony of HC Ram Charan and Ct.Jaipal is akin to what is conventionally understood as res gestate evidence. In a case of percipient evidence, which is direct evidence, the witness acts as the eye of the Court and if he is believed, no further inferences have to be drawn.

38. The appeal is dismissed. The bail bond and surety bond furnished by the appellant are cancelled. The appellant is directed to surrender and suffer the remaining sentence, which we note is to undergo imprisonment for life.