Full Text
JUDGMENT
MANBIR @ MANNU @ BABUJI ..... Appellant
Through: Mr.K.B.Andley, Senior Advocate with Mr.M.Shamikh, Advocate.
Through: Mr.Pawan Sharma, Standing Counsel (Criminal) with Mr.Harsh
Prabhakar, Advocate.
VIJAY KUMAR @ KALLU ..... Appellant
Through: Mr.K.B.Andley, Senior Advocate with Mr.M.Shamikh, Advocate.
Through: Mr.Pawan Sharma, Standing Counsel (Criminal) with Mr.Harsh
Prabhakar, Advocate.
HON'BLE MR. JUSTICE SUNIL GAUR
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? 2011:DHC:4585-DB PRADEEP NANDRAJOG, J.
1. As laid in the challan, prosecution alleged against the appellants that they are brothers and deceased Sukhbir @ Kallu was their cousin. (Not to be confused with appellant Vijay Kumar also called Kallu). That deceased used to behave inappropriately with Urmila wife of appellant Manbir and on an earlier occasion had tried to molest her and for which reason he was declared a persona non-grata in the house of the appellants. On 5th August 1997, Sukhbir came to house of Harbans Lal (PW-6) which was on the same street on which house of appellant was constructed and the purpose of the visit was to discuss with Harbans Lal the terms on which the deceased would give on hire a bus with respect to the marriage of the son of Harbans Lal. At that time, wife of appellant Manbir i.e. Urmila reached and questioned why Sukhbir had entered their street and left to return with appellant Manbir who was armed with a lathi, but was persuaded to go back and returned within minutes with a lathi in hand and his brother Vijay Kumar in company, who inflicted knife blows on Sukhbir. After inflicting knife blows the two fled. Sukhbir died as a result of the knife injuries received before he could be rendered any medical assistance. The incident was stated to have been witnessed by Sahib Singh PW-4, who had a shop in his house on the street as also by Satish Kumar (PW-5) and Harbans Lal.
2. Needless to state, at the trial, Sahib Singh, Satish Kumar and Harbans Lal were produced as eye-witnesses and Urmila wife of appellant Manbir was produced as a witness to prove the motive for the crime; and as was expected, Urmila did not support the case of the prosecution; the reason obviously being her compulsion to weaken the case of the prosecution and save her husband.
3. The place where the stabbing took place is not in dispute, being the spot on the street abutting the house where Harbans Lal lived, which is a little away from the building in which Sahib Singh has a shop.
4. Whereas Sahib Singh PW-4 deposed being present at his shop and having seen a person, in an injured condition, falling in front of his shop with left portion of the chest stained with blood and being attempted to be lifted by Harbans Lal, but he did not support the case of the prosecution that the appellants had caused the injuries to the deceased inasmuch as he said that he does not know who injured Sukhbir. Relevant would it be to highlight that PW-4 was not crossexamined and thus his testimony that Harbans Lal was in the company of the deceased when the deceased was injured and that Harbans Lal was trying to lift the deceased who had fallen down as a result of the injuries has gone unchallenged and there-from we can safely infer that Harbans Lal was present at the spot when the deceased was injured.
5. Harbans Lal PW-6 has deposed by way of examination-in-chief on 29.1.1998 and his examination-in-chief reads as under:- “I am a three-wheeler driver. Accused person, present before the Court, are known to me since they are my neighbours. Kalu, the deceased, was also known to me. On 5.8.1987 at about 5:30 PM I was present at my house. Kalu came to be, since I was to engage the bus of Kalu for the marriage of my son. There wife of accused „Babuji‟, present before the Court, came and questioned Kalu as to how he had entered that gali. She was the real sister-in-law of Kalu. Again said Kalu was the mother‟s sister‟s son of accused Babuji. Kalu told her that she cannot stop his entry into the street and he has not come to her house. In the meantime accused „Babuji‟ reached there with a lathi. He abused Kalu. Witness Satish persuaded „Babuji‟ to go away from there. After about 20 minutes accused Kallu and Babuji came there. Accused Kallu was having a knife. „Babuji‟ was having a lathi. Accused Kallu wielded knife blows and accused „Babuji‟ wielded lathi blows on Kalu, the deceased. Kalu received knife blow on his chest. I removed Kalu to police post. Police Control Room van reached and removed him to hospital. He, namely, Kallu, fell in front of the shop of Sahib Singh. My statement Ex.PW-6/A was recorded by the police, which bears my signatures at point „A‟. My shirt was blood stained, which was taken into possession by the police vide memo Ex.PW-5/A, which bears my signatures at point „B‟. When I had taken the injured to hospital in PCR van, my shirt was stained with blood.”
6. The testimony being incomplete, Harbans Lal was further examined on 27.5.1998 and he deposed only 2 lines:- “I am not aware about the name of the accused whom I am referring as „Babuji‟.
7. Learned counsel for the appellants conceded before Court that appellant Vijay Kumar was also called Kallu and appellant Manbir used to be known as Babuji in the colony.
8. Harbans Lal was cross-examined on 6.8.1998 i.e. after a gap of 6 months and during cross-examination he deposed as under:- “I am a three-wheeler driver by profession. On the date of incident, I reached my home at about 4:30 or 5:00 PM. Sahib Singh run a „purchun shop‟ there. I saw a crowd there. Kallu was present there in injured condition. I sent someone from the crowd and called a cot there. I took him to the police post. I stayed at the police post for 10-15 minutes and then taken Kallu to hospital. I had gone to hospital with regard. I returned to police post at 11:00 PM from the hospital. Senior officers were present there. My signatures were obtained there on Ex.PW-5/A, Ex.PW-6/A. I am illiterate and these documents were not read over to me.”
9. On being re-examined, Harbans Lal stated:- “Facts stated by me today are correct.”
10. We are surprised at the competence of the learned APP who was satisfied by the witness stating, on reexamination, that the facts stated by him during crossexamination were correct. The learned APP did not even bother to ask questions to the witness seeking clarification with respect to what the witness had deposed during examination-in-chief 7 months earlier.
11. It needs to be highlighted that during crossexamination, Harbans Lal changed his version by stating that by the time he reached his house the deceased had already been injured and was surrounded by a crowd and being an illiterate person he cannot say what were the contents of the seizure memo Ex.PW-5/A and his complaint Ex.PW-6/A; both bearing his signatures.
12. Satish Kumar PW-5 deposed on 29.1.1998 as under:- “On 5.8.97 at about 5:00 PM I reached Gali No.8, Sri Ram Colony, Delhi. Accused persons present before the Court were quarelling with Kalu, who has expired. Accused Vijay @ Kallu was having a knife in his hands and accused Babuji was having a lathi in his hands. When I reached there Kalu took shelter behind me. Accused Vijay @ Kallu gave me a push to take out Kalu from my shelter. I fell down on one side. When I saw towards Kalu, he was bleeding from his chest. From the spot, we people had removed Kalu to the police post, on a cot. On the way PCR van met us and took the injured to the hospital. Accused persons are well known to me. Except the accused persons, none was quarelling with Kalu. When I reached there at the spot, Kalu was not having any injury on his person. He received injuries after I was pushed by accused Vijay @ Kallu. I could not see as to which of the accused had inflicted injuries on his person. Police had lifted blood, blood stained soil, earth control samples from the spot and had taken the same into possession vide memo Ex.PW-5/A which bears my signatures at point „A‟.
13. He was cross-examined on 6.8.1998 and during cross-examination he deposed:- “We call the General Merchant shopkeeper by the name of Jat. He is commonly known as Jat in our colony. When I heard the noise and came out of my house, I saw a quarrel going on in front of the house of Sh.Harbans Lal with Kallu, the deceased. Entire incident had taken place in front of the house of Harbans Lal. After Kallu was stabbed, Harbans Lal was taking him to police post. When Kallu reached near the shop of Jat, he was put on a cot and then taken from there. I helped in lifting the said cot. I had not gone to hospital. Sh.Harbans Lal had gone along with Kallu to the hospital. First of all we had taken the injured to the police post. There the injured remained for about 10-15 minutes and thereafter he was removed to the hospital. I reached the spot when exchange of words were going on and the entire incident happened in my presence. I tried to intervene, since accused Kallu had given me a push, hence I could not intervene. Harbans Lal brought a cot. Since we had gone to the police post along with the injured, hence police reached at the spot thereafter. I was interrogated by the police, at about 7 – 8 p.m. Blood stained soil and earth control sample etc. along with the blood were lifted from a place in front of the shop of Jat. It is incorrect that I had not seen the incident. It is also incorrect that accused Kallu had not given a push to me. I remained at the spot for about 10 minutes. After the date of incident, I was not called at the police post. Harbans met me at the police post, after returning from the hospital at about 8:00 or 9:00 PM. I had never given any affidavit regarding the facts of this case. I am illiterate and cannot read and write. When I appeared before this Court for the first time to give evidence Sh.R.S.Goswami, Advocate presented a paper before me saying that the said document is an official document and I must affix my thumb impression on the same. At the instance of Sh.Goswami, Advocate I affixed my thumb impression on Ex.PW-5/D[1]. Contents of this document were neither read over to me nor I am illiterate to read it. It is incorrect that the contents of this document were read over to me. It is also incorrect that I affixed my thumb impression over the same knowingly and having knowledge about the contents of this document. It is incorrect that I am deposing falsely.”
14. Knife Ex.P-9 stated to have been recovered pursuant to the disclosure statement of accused Vijay Kumar @ Kallu was opined not to be the likely weapon of offence with which injury No.2 could be caused on the person of the deceased as deposed to by Dr.N.K.Aggarwal PW-13 who had conducted the post-mortem on the body of the deceased and had recorded 2 stab injuries, the first on the lower back of the left side of the chest, entry point being 2 cm from the midline entering at the level T-12 and L-1; moving forward and inward as also downward, cutting the small intestines at several places in the abdominal cavity; suggesting of the knife being moved when inside the body, so that maximum injuries could be inflicted on the internal organs. The second injury was 4 cm below the left nipple and 11 cm from midline in the 5th intercostals space. The injury had pierced the left lung. Both injuries were opined to be individually and collectively sufficient to cause death in the ordinary course of nature and indeed did evidence by the fact, as deposed to by Dr.Manoj Kumar PW-12 who attended on Sukhbir when he was brought to GTB Hospital that the patient was brought dead. It is apparent that the death was instant.
15. The FIR has been registered pursuant to the statement Ex.PW-6/A made by Harbans Lal to Insp.Safdar Ali PW-11 and highlighting that the teherir scribed beneath the statement shows that the statement was dispatched from the spot at 8:15 PM and FIR, as per DD No.15A, was registered soon thereafter, but copy of the FIR was delivered to the Area Magistrate at 3:45 in the middle of the night.
16. Highlighting the fact that as per the FSL report the shirt of Harbans Lal seized vide memo Ex.PW-5/A was found contaminated with human blood of the same group as that of the deceased, we proceed to consider the arguments advanced before us.
17. It may be true that there is a delay in delivering the FIR to the Area Magistrate, who as noted in para 15 above received the same past midnight, in fact around dawn at 3:45, but there-from it cannot be said that the FIR has been antetimed to plant an eye-witness. We need to highlight that Sahib Singh PW-4, categorically stated that Harbans Lal was seen by him attempting to lift Sukhbir who was injured and this testimony has not been challenged. Even Harbans Lal PW-6 deposed in examination-in-chief that he lifted the deceased when he was injured and indeed we find that the shirt which he was wearing was seized by the Investigating Officer and on the same human blood of the same group as that of the deceased was detected. Even Satish Kumar, in crossexamination has deposed to Harbans Lal being present when the incident took place. Thus, in the teeth of the overwhelming evidence we hold that the FIR has not been ante-timed. Delay in delivering the FIR to the Area Magistrate is a lapse by the Investigating Officer.
18. It was then urged that Harbans Lal turned turtle when he was cross-examined and the re-examination by the learned APP is useless. Thus, it was urged that Harbans Lal‟s stated eye-witness account as per his testimony by way of examination-in-chief is worthless.
19. Highlighting that on 29.1.1998 Harbans Lal fully supported the case of the prosecution including his statement Ex.PW-6/A and categorically stated that the memo Ex.PW-5/A was drawn up after his shirt, which was stained with the blood of the deceased, was seized by the police, when crossexamined after a gap of 6 months on 6.8.1998 he took a somersault by stating that he saw Kallu in an injured condition and took him to the police post, we proceed to consider the effect of Harbans Lal attempting to water down his examination-in-chief.
20. A similar situation had confronted the Supreme Court in the decision reported as 1991 (3) SCC 627 Khujji vs. State of Madhya Pradesh, wherein a witness had likewise turned turtle in between the date of his examination-in-chief on 16.11.1976 and the date of cross-examination, being 15.12.1978. Paragraph 7 of the decision of the Supreme Court would reveal that in light of the surrounding evidence, the Supreme Court relied upon the examination-in-chief and ignored the cross-examination holding the same to be a clear attempt to wriggle out of what was deposed by way of examination-in-chief. We highlight that while deposing by way of examination-in-chief, Harbans Lal had categorically stated that his statement Ex.PW-6/A was recorded by the police and his signatures were to be found on point „A‟. The fact of his shirt, stained with blood of the deceased, was seized by the Investigating Officer, is proof of his presence at the spot and his providing relief to the injured deceased and it is clear that he contradicted himself as he was suborned in between the period of his being examined in chief and cross-examined. It is not that the prosecution has only one eye-witness. As noted herein-above there is another eye-witness Satish Kumar PW-5 who has totally corroborated Harbans Lal‟s examination-inchief and thus the argument that if the testimony of Harbans Lal has to be ignored, nothing would remain, is rejected by us.
21. With respect to the testimony of Satish Kumar PW- 5, it is urged that as per his testimony it does not surface as to who out of the 2 accused inflicted the knife injury and who inflicted a lathi blow. But the argument takes the appellants nowhere for the reason we have believed the examination-inchief of Harbans Lal PW-6 wherein the role of the appellants is brought out. It was appellant Manbir who wielded a lathi blow and it was appellant Vijay Kumar who wielded the knife blows.
22. The argument that the post-mortem report of the deceased does not show any injury with a blunt force and thus Harbans Lal and Satish Kumar cannot be believed is an argument which is premised as if there is a contradiction between the ocular and the medical evidence. It is only where the ocular and the medical evidence so contradict each other that none can withstand itself can it be said that ocular evidence has to be ignored. In the instant case, neither witness has deposed that Manbir mercilessly gave lathi blows to the deceased. Witnesses in India confuse between the singular and the plural and where they have to say that a single lathi blow was inflicted, tend to say that lathi blows were inflicted. Now, if only 1 lathi blow was wielded, it is possible that the deceased successfully avoided the same and hence no blunt object injury upon the person of the deceased.
23. The matter can be looked at like this. The testimony of Harbans Lal would show that when deceased came to his house, wife of Manbir came and picked up an issue as to why the deceased had visited the gali, and when the deceased replied that he had every right to do so she returned accompanied by her husband Manbir who was armed with a stick. He abused the deceased. Manbir was persuaded to leave but returned after 20 minutes accompanied by his brother Vijay Kumar who was having a knife and upon returning, knife blows were inflicted on the deceased. It is thus apparent that there was an issue in the past of a serious nature which had angered Manbir‟s wife when she saw the deceased in the street where she was residing with her husband and her brother-in-law i.e. the appellants. The nature of the dialogue between Manbir‟s wife and the deceased shows that the past incident was a serious matter, enough to rouse the anger of Manbir‟s wife and Manbir coming to the spot at the asking of his wife with a lathi in his hand and when persuaded to leave, returning with his younger brother who was armed with a knife. There is tell-tale evidence of Manbir and Vijay Kumar returning with an intention to teach the deceased a lesson of his life. They were armed with a knife which was in the hand of Vijay Kumar. 2 blows were inflicted on the person of the deceased. The two certainly shared a common intention and acted in concert.
24. Before dealing with the last submission as to what was the common intention shared, we note the argument that the knife Ex.P-9 was opined not to be the one with which the 2nd injury could be caused, but there-from no benefit can be granted to the appellants inasmuch as the accused getting recovered wrong weapons to mislead the prosecution is not unknown.
25. It was urged that the intention at best could be to grievously injure the deceased and the unfortunate circumstance of the deceased dying would make liable both appellants to be convicted for the offence of culpable homicide not amounting to murder and for which it was urged that only 2 knife blows being inflicted is suggestive of an intention of the lesser magnitude and not the higher.
26. Now, single or two knife blows inflicted, being held to be not indicative of an intention to cause death are to be found in only such decisions where the act of stabbing was not premeditated. Those were cases where inference of intention had to be drawn from the act of stabbing and no other evidence. In the instant case there is evidence that when Manbir‟s wife saw the deceased and got angry and questioned him how come he had entered the street where she resided and the deceased telling her that he had every right to be in the street, her going back and summoning her husband i.e. Manbir who came armed with a lathi, but going back on being persuaded and returning with his younger brother in tow who was armed with a knife and upon returning the assault being launched is clearly indicative of a determined mind to inflict fatal knife blows on the person of the deceased. We have highlighted herein above that the internal injuries caused by the knife showed small intestines being cut in a manner which can be caused only when the knife was moved inside the stomach cavity suggestive of a higher degree of professionalism. It is apparent that the intention was to cause the death of the deceased and not simply to cause a grievous injury. That both appellants immediately fled when they saw the deceased falling as a result of the injuries further strengthens the belief that the two acted in tandem sharing the common intention.
27. We dismiss the appeals and cancel the bail bond and surety bonds furnished by the appellants who are directed to surrender and suffer the remaining sentence, which needless to state is to suffer imprisonment for life.
(PRADEEP NANDRAJOG) JUDGE (SUNIL GAUR) JUDGE September 07, 2011 dk