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Crl.A.No.99 of 1997 HIGH COURT OF DELHI CRL. APPEAL NO. 99 OF 1997
Date of Decision: 13th January, 2010.
PREM RAJ . . . APPELLANT
Through: Mr. M.L. Yadav, Advocate.
Through: Mr. Pawan Sharma, Standing Counsel.
HON’BLE MR. JUSTICE AJIT BHARIHOKE
JUDGMENT
1. Whether Reporters of Local newspapers may be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest? AJIT BHARIHOKE, J. (ORAL)
1. The appellant on being convicted for the offences punishable under Sections 302 IPC, 307 IPC and 323 IPC vide impugned judgment dated 30.11.1996 and consequent order on sentence of even date has preferred the present appeal.
2. Briefly stated, the case of the prosecution is that on 17.8.1991 at around 9.00 pm, Sumer Chand, PW-1 was sitting on a 2010:DHC:164-DB -------------------------------------------------------------------------------------------------------------cot outside his house at Madangir. The appellant is stated to have come there from a `gali’ and pushed PW-1, Sumer Chand. As a result thereof, he sustained injury. When Sumer Chand raised alarm, his son Daulat (hereinafter referred to as „the deceased‟) came and tried to rescue him. The appellant took the deceased to a side of the `gali’ and inflicted 2/3 knife blows on his person. On hearing the cries of the deceased, his mother Bhagwan Devi, PW-2 and his uncle Arjun, PW-3 came out of the house to rescue him. The appellant is stated to have stabbed Bhagwan Devi as well as Arjun and thereafter he fled away from the spot.
3. Someone, in the meanwhile, informed the police. PCR Van arrived at the spot. By that time, the deceased had already been taken to the hospital in a three-wheeler scooter of Kanan K. Lingam. Officials of PCR took Sumer Chand, Bhagwan Devi and Arjun to AIIMS in the police van. By the time police reached the hospital, Daulat had already expired.
4. The Investigating Officer, Shri Randhir Singh, S.I.(PW-19), met Sumer Chand (PW-1), Bhagwan Devi (PW-2) and Arjun (PW-3) in the hospital. Bhagwan Devi was declared unfit for statement. So, the Investigating Officer recorded the statement of Sumer Chand (PW-
1) who narrated the above mentioned facts. Investigating Officer -------------------------------------------------------------------------------------------------------------appended his endorsement on the statement of Sumer Chand and sent it to the police station for the registration of case and on the basis of the said statement, formal FIR was registered at Police Station Ambedkar Nagar, Delhi. Subsequent investigation was taken over by the SHO. He along with Randhir Singh, S.I. reached the spot of occurrence, which was got photographed. Blood stains from three places were taken into possession vide memo Ex.PW5/B.
5. In the meanwhile, duty Constable conveyed the information about admission of the appellant in RML Hospital with the alleged history of injury, which was recorded as DD No.73B. On the receipt of the said DD report, SHO reached RML hospital and found that the appellant had been discharged. The MLC of the appellant Ex.PW19/A was collected. The appellant was arrested by the police on 18.8.1991 from his house. On interrogation, he made the disclosure statement Ex.PW1/B and pursuant to the said disclosure statement he got recovered the weapon of offence, i.e. a knife, which was taken into possession vide memo Ex.PW1/D. The accused also got recovered bloodstained clothes from his house.
6. The dead body was also sent for post-mortem examination. As per Dr. M.S. Sagar (PW-18), the following external ante-mortem injuries were found: “1. stab wound left side of chest placed 10 cm. below clavicular margin and 6 cm. lateral to mid line of size 2cmx1cm. Transversely placed with clean cut everted margins going medially and posteriorly passing through 4th intercestal space cutting the intercestal muscles going through the pori cardium into left atrium valve with incise wound in the left atrium of size.9cm x.2cm.
2. stab wound left chest placed 10cm left of midline and 19cm below clavicular margin placed obliquely of size 2.[5] x 1.[1] cm. with clean cut averted margin going medially and downward passing through the diaphragm and entering into the anterior wall of the stomach with incise wound of size 1cm. x.3cm.”
7. PW-18 opined that the above referred injuries were caused by a sharp edged weapon and were sufficient to cause death in the ordinary course of nature individually as well as collectively. The post-mortem report is Ex.PW18/A.
8. Dr. M.S. Sagar, PW-18 converted pant and underwear of the deceased in a sealed packet and handed it over to the police Constable along with blood sample of the deceased, which were sent along with knife Ex.P-1 and blood-stained paint and shirt of the appellant to CFSL for serological examination and on examination, human blood of AB Group was detected on the clothes of the -------------------------------------------------------------------------------------------------------------deceased as also on the pant and bushirt of the appellant. No blood was found in chhuri/knife.
9. On completion of the necessary formalities of investigation, the appellant was charged for having committed the murder of Daulat Ram and for attempting to commit murder of Arjun and Bhagwan Devi and also for causing simple injury with a blunt force to Sumer Chand, punishable under Sections 302, 307 and 323 IPC respectively.
10. Incriminating circumstances appearing in evidence were put to the appellant to seek his explanation. He denied the prosecution case and claimed that he has been falsely implicated in this case. The appellant examined DW-1 Tuki Ram in his defence. He has deposed about the character of the appellant.
11. The learned trial Judge on appreciation of the evidence/record found the appellant guilty on all three counts and convicted him under Sections 302, 307 and 323 IPC.
12. The case of prosecution rests mainly on the eyewitness account given by Sumer Chand (PW-1), Bhagwan Devi (PW-2) and Arjun (PW-3). Other four purported eye witnesses of the -------------------------------------------------------------------------------------------------------------occurrence, i.e., Chunni Lal (PW-4), Dharma (PW-5), Chiranji Lal (PW-7) and Trilok Kumar (PW-8) have not supported the case of the prosecution and they claimed to have reached at the spot after the occurrence. They were cross-examined by the learned APP with the permission of the Court.
13. PW-1 Sumer Chand stated in the Court that on 17.8.1991 at around 9.00 pm while he was sitting on a cot in the lane outside his house, the appellant came there and pushed him. As a result, his head hit against the wall and he sustained injury and he raised alarm. When his son, Daulat (deceased) came to his rescue, the appellant, Prem Raj took him aside in the lane and inflicted 2/3 knife blows. When Daulat (deceased) raised alarm “Bachao Bachao”, his mother Bhagwan Devi (PW-2) and uncle Arjun (PW-3) tried to intervene and rescue him, but both of them were stabbed by the appellant. He further stated that Daulat was taken to the hospital on a three-wheeler scooter. Someone informed the police and the PCR Van came to the spot and took him, his wife and brother Arjun to AIIMS where his statement Ex.PW1/A was recorded. We may note that the FIR was registered on the basis of the aforesaid statement.
14. The witness also stated that on the next day, the appellant was arrested and on interrogation he made a disclosure statement Ex.PW1/B stating that he had thrown the weapon of offence, i.e., knife in a drain near the place of incident and pursuant to that he got recovered the said knife Ex.P[1] from the drain. The knife was taken into possession vide memo Ex.PW1/D after the preparation of its sketch Ex.PW1/C. The witness also stated that the appellant got recovered his blood-stained clothes from his house, which were taken into possession vide memo Ex.PW1/E. He was crossexamined at length by learned defence counsel and he denied the suggestions to the effect that he had sustained injury on the forehead because of a fall while under intoxication and that neither the knife Ex.P[1] nor the clothes (pant and shirt of the appellant) were recovered in his presence. He was confronted with his earlier statement Ex. PW1/A, where the factum of his raising alarm “bachao bachao” is not recorded. Bhagwan Devi (PW-2) and Arjun (PW-3) have also given almost similar version about the incident.
15. Dharma (PW-5), though he turned hostile, has supported the case of the prosecution to a certain extent by stating that on hearing the noise, he came out in the ‘gali’ and he heard the family members of the deceased shouting that Prem Raj has assaulted them and that he ran after Prem Raj to apprehend him, but did not -------------------------------------------------------------------------------------------------------------succeed. Chiranji Lal (PW-7) and Trilok Kumar (PW-8) were totally hostile to the case of prosecution and denied the suggestions given to them by the learned APP.
16. The learned Trial Court relying upon the testimony of the eye witnesses Sumer Chand PW-1, Bhagwan Devi PW-2 and Arjun Singh PW-3 as also the evidence regarding the recovery of the weapon of offence, i.e., knife Ex.P-1 and blood-stained clothes of the appellant Exhibits P-2 and P-3 as also the serological reports Exhibits PA to PD held the appellant guilty on all the three counts and convicted him.
17. Learned counsel for the appellant has assailed the impugned judgment on several counts. His first challenge to the impugned judgment is that the prosecution has failed to establish the motive for the alleged crime for which the appellant has been charged. He has submitted that a person does not commit a voluntary act of crime without any motive. Therefore, proof of existence of a motive is an important component to establish the guilt of the accused and since there is no evidence whatsoever about the motive of the crime, the prosecution case is suspect.
18. We find no merit in this contention. It is true that normally there is a motive behind every criminal act and the motive therefore is an important factor to lead towards the guilt or innocence of the accused. It is also true that motive is the state of mind of a person, which can be inferred from the surrounding facts and circumstances; however it is not always possible for the investigating agency to collect evidence of motive on the part of the accused. It is well settled that where direct evidence regarding the commission of crime is reliable and worthy of credence, the question of motive loses its significance and becomes more or less academic. In the matter of Molu v. State of Haryana, AIR 1976 SC 2499, the Supreme Court, dealing with the issue of motive, observed thus:- “It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes, however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however, the evidence of the eye witnesses is credit-worthy and is believed by the Court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant”.
19. From the above enunciated principle of law, it is obvious that in a case based upon the testimony of ocular witnesses, the -------------------------------------------------------------------------------------------------------------significant factor would be the credibility of the eye witnesses and absence of motive would not play any role if the eye witness account is found reliable.
20. The next submission put forth on behalf of the appellant is that PW-1 Sumer Chand is not a reliable witness as his conduct is highly unnatural. Learned counsel for the appellant submitted that from the MLC, Ex. PW17/C of PW-1 Sumer Chand, it is clear that he had suffered a simple injury. Despite that, he neither tried to save his son nor he accompanied his injured son Daulat (deceased) to the hospital which conduct, as per learned counsel for the appellant, is highly unnatural and thus he has urged us to infer that the presence of PW-1 Sumer Chand at the time of the incident is highly doubtful and as such, he cannot be relied upon.
21. We find no merit in this contention. Working of a human mind is complex and there can be no universal rule about the reaction and behaviour of a person in a given situation. People do react differently in similar situations. As per the evidence, the appellant had initially assaulted PW-1 Sumer Chand and, thereafter, he took the deceased aside and stabbed him with a knife. He even stabbed PW-2 Bhagwan Devi and PW-3 Arjun, who, on hearing alarm ran towards the spot of occurrence to rescue the deceased. It is possible that on seeing the appellant using the knife, PW-1 Sumer Chand might have gone under shock or he feared for his own safety. Thus, much significance cannot be attached to PW-1 Sumer Chand not trying to rescue his son. We may add that from the MLC Ex.PW17/C, it stands established that PW-1 Sumer Chand had sustained injuries in the occurrence. Therefore, there can be no doubt about his presence at the spot. Once there is no evidence of any acrimony or ill-will between the complainant party and the appellant, we find no reason as to why PW-1 Sumer Chand would falsely implicate the appellant and let the real culprit go scot free.
22. The next submission on behalf of the appellant is that PW-2 Bhagwan Devi has stated that she came out of her house on hearing the alarm of the deceased who was shouting that he had been stabbed and according to PW-3 Arjun he came out of his house on hearing the noise and by that time Daulat had already been stabbed. From this, he has urged us to infer that neither PW-2 Bhagwan Devi nor PW-3 Arjun are the eye witnesses of the occurrence and therefore it is not firmly established as to who inflicted fatal knife injuries on the person of the deceased.
23. We do not find any merit in this contention. PW-2 Bhagwan Devi has also stated that when she came out of the house, she saw the appellant chasing her son with a knife in his hand and when she tried to catch him he gave a knife blow on her stomach. Similarly, PW-3 Arjun has stated that when he came out of his house, though the appellant had already stabbed Daulat with a knife, he noticed him with a knife in his hand and that the appellant stabbed him with a knife in the left side of the abdomen. From the above evidence of PW-2 Bhagwan Devi and PW-3 Arjun, it is apparent that immediately after the stabbing of the deceased, the appellant was found chasing the deceased with a knife in his hand and when the above witnesses tried to intervene, the appellant stabbed both of them. From this, it can be safely inferred that the causing of fatal injury to Daulat as well as the injury to PW-2 and PW-3 are part of the same transaction and the aforesaid act was committed by the appellant. The fact that PW-2 Bhagwan Devi and PW-3 Arjun had suffered dangerous stab injuries with a sharp object as is apparent from their respective MLCs Ex.PW17/B and Ex.PW17/C is sufficient assurance of their presence at the time of occurrence and the fact that they are telling the truth. Thus, in our view, the learned trial Judge has rightly relied upon their testimony, which is consistent -------------------------------------------------------------------------------------------------------------with the prosecution case and is corroborated by their medical record.
24. The next submission on behalf of the appellant is that Kanan
25. It is next submitted on behalf of the appellant that though the appellant sustained injuries in the occurrence, the prosecution has -------------------------------------------------------------------------------------------------------------not led any evidence to explain as to how and under what circumstances the appellant sustained injuries. In support of this contention, learned counsel for the appellant has referred to the MLC Ex.PW19/D of the appellant which was prepared on the date of incident at 10.00 pm. Thus, it is urged that the benefit of aforesaid failure of the prosecution to explain the injury must go to the appellant. We do not find any merit in the contention. The appellant was given an opportunity to explain incriminating circumstances appearing against him in the evidence. He, however, in his statement under Section 313 Cr.P.C., apart from denying the correctness of prosecution case, did not come out with any explanation. It is not the case of the appellant that the complainant party was the aggressor and he sustained injuries in the scuffle or fight with them. Therefore, non explanation of injury on the person of the appellant is of no consequence. Further, since the appellant had sustained an injury, he was the best person to know under what circumstances those injuries were caused but he has opted to remain silent and failed to come out with his version regarding the said injury. Learned counsel for the appellant further submitted that as per the Punjab Police Rules, the police was under obligation to record the substance of allegations contained in the FIR in the daily diary Ex.PW9/A which provision has not been complied with, therefore, a possibility of manipulation in the FIR -------------------------------------------------------------------------------------------------------------cannot be ruled out. This argument is of no avail to the appellant. It is suffice to say that above referred rule is only a rule of caution to ensure that no manipulation in the FIR is done by the investigating agency. Non compliance with the aforesaid rule by itself cannot be taken as a ground to reject the otherwise reliable eye witness account given by as many as three witnesses, particularly when the appellant has not been able to point out anything from the record which may raise even a slightest suspicion of manipulation of the contents of FIR.
26. It is next submitted on behalf of the appellant that the only witnesses who have supported the case of the prosecution i.e. PW-1 Sumer Chand, PW-2 Bhagwan Devi and PW-3 Arjun are parents and uncle of the deceased who have an interest in the success of the case, whereas the other independent witnesses examined in this case, namely, PW-4 Chunni Lal, PW-5 Dharma, PW-7 Chiranji Lal and PW-8 Trilok Kumar have not supported the prosecution story. Thus, he has submitted that the testimony of PW-1 to PW-3 is suspect, they being the interested witnesses.