Ram Avtar v. The State (NCT of Delhi)

1. Whether Reporters of local papers may be allowed to see the judgment? No

2. To be referred to the Reporter or not ? No

3. Whether the judgment should be reported in Digest ? No AJIT BHARIHOKE, J.

1. This appeal is directed against the judgment of learned Additional Sessions Judge dated 31st March 1995 vide which the appellant has been convicted for the offence punishable under Section 302 IPC read with Section 34 IPC for having committed murder of his father Sohan Lal and also for the offence punishable under Section 324 IPC read with Section 34 2009:DHC:3140-DB IPC for having caused simple injury to PW-7 Shyam Babu with a sharp edged weapon and the consequent order on sentence.

2. Briefly stated, case of the prosecution is that on 11th September 1990 at about 1.20 AM, Duty Constable Chaman Singh who was on duty from GTB Hospital Shahdara telephonically informed the police station that one Shyam Babu injured was got admitted in the hospital by one Vinod Kumar. The information was recorded as DD No.23A. Pursuant to the DD report, S.I. Niranjan Singh proceeded to the hospital. In the meanwhile, SHO Police Station Nand Nagri Shri Prem Singh also reached there along with police party. After obtaining the MLC of the injured Shyam Babu, SHO Prem Singh recorded his statement Ex.PW-7/A. The statement of Shyam Babu revealed that he was a tenant of the deceased Sohan Lal. On 11th September 1990, Shyam Babu, his wife and Sohan Lal after watching a movie on VCR proceeded to sleep on the roof of the building. At about 11.30 PM, appellant Ram Avtar along with his co-accused came to the roof via staircase. Their faces were covered and they were carrying knife in their hands. Both of them attacked Sohan Lal with the knives. Consequently, Sohan Lal suffered injuries and fell down. When Shyam Babu tried to catch hold of them, they also attacked him and caused him injuries. His wife raised an alarm and on this appellant Ram Avtar and his co-accused ran away. PW-2 Vinod Kumar, thereafter, took injured Shyam Babu to GTB Hospital in a three-wheeler scooter. After recording the statement of Shyam Babu, the police party went to the place of occurrence i.e. House No.C-455, Gali No.6, Ashok Nagar, Delhi and found dead body of the deceased Sohan Lal at the roof of the house. Thereafter, the statement of Shyam Babu Ex.PW-7/A was endorsed by the SHO detailing the fact about the death of Sohan Lal and recovery of his dead body and sent it to the police station for the registration of the case. On the basis of said statement, duly endorsed by the SHO, formal FIR was recorded at Police Station Nand Nagri.

3. SHO Inspector Prem Singh, during the course of investigation, got the spot of occurrence photographed. He seized from the spot broken spectacles, two pairs of chappals, a single blood stained chappal. He also lifted the sample of blood with the help of cotton from the roof of the house as well as from the ground floor of the house. He took into possession control earth samples, recorded the statement of the witnesses and sent the police party headed by S.I. Niranjan Singh in search of the appellant. Appellant was arrested by S.I. Niranjan Singh and his personal search was conducted vide memo Ex.PW-2/G. Though during investigation appellant Ram Avtar made a disclosure statement but no recovery was effected pursuant to the personal search. The co-accused of the appellant could not be arrested and he was declared a proclaimed offender. After completing necessary formalities of the investigation, appellant Ram Avtar was sent for trial for having committed the offences punishable under Sections 302/307/34 IPC.

4. The appellant was charged under Section 302/307/34 IPC for having committed murder of the deceased Sohan Lal and attempting to murder Shyam Babu in furtherance of his common intention with his co-accused.

5. Learned Amicus Curiae has assailed the impugned judgment on the ground that learned Trial Court has not properly appreciated the evidence and relied upon the testimony of eye witnesses without assessing their credibility and trustworthiness. Expanding the argument, he has contended that the witnesses of prosecution have contradicted themselves on various aspects, therefore their testimony is under cloud. He has pointed out that according to PW-6 Sarla Devi, at the relevant time, deceased Sohan Lal, her husband Shyam Babu and she herself were sleeping on the roof of the house whereas Shyam Babu has given a contradictory version by stating that apart from three of them, one tenant was also sleeping on the roof. Learned Amicus has also pointed out that according to PW-7 Shyam Babu, after being stabbed was pushed by the accused persons down the stairs and he fell down in the veranda whereas his wife PW-6 Sarla Devi has stated that her husband chased the accused persons even upto ground floor where he fell down. Learned Amicus has further pointed out that PW-2 Vinod Kumar has stated that while he was sleeping in his room on the ground floor, he heard the noise `bachao bachao’ which fact is contradicted by PW-3 Smt. Veena who has stated that she heard the noise of `pakro pakro’. Learned Amicus has submitted that in view of the aforesaid contradictions in the testimonies of the witnesses of the prosecution, learned Trial Court ought to have concluded that they were not being truthful and extended the benefit of doubt to the appellant.

6. We have gone through the testimonies of the witnesses and in our considered view the contradictions pointed out by the learned Amicus are inconsequential and minor in nature. It is seen from the record that the incident took place on 11th September 1990 and the witnesses were examined sometime from March 1993 onwards i.e. after a lapse of 2 ½ years. The fact that the witnesses were examined after such a long time, minor variations in their testimonies are bound to occur and can be attributed to the failure of memory due to lapse of time. Otherwise also, we do not find that there is much difference between `pakro pakro’ and `bachao bachao’. Even the contradiction pointed out in the testimony of PW-6 Sarla Devi and PW-7 Shyam Babu regarding the fact whether Shyam Babu chased the appellant and his companion upto the ground floor or whether he was pushed down the stairs is of no consequence. The fact remains that both the witnesses are consistent on the point that injured Shyam Babu fell down in the veranda at the ground floor. PW-7 Shyam Babu sustained injuries in the occurrence therefore his presence at the spot of occurrence cannot be doubted. His version is fully corroborated by PW-6 Sarla Devi on all material aspects of the case. Therefore, we find no reason to disbelieve his testimony. Otherwise also, even PW-3 Veena has corroborated their version by stating that when she came out on hearing the noise `pakro pakro’, she saw PW-7 Shyam Babu drenched in blood and wife of Shyam Babu told that Narender and Ram Avtar had stabbed her husband. The said utterance on the part of PW-6 Smt.Sarla Devi immediately after the occurrence is so inter-twinned with the occurrence that it forms part of the same transaction and amounts to her conduct during the transaction which is admissible as a relevant piece of evidence under Section 6 of the Indian Evidence Act. Therefore, even the statement of PW-3, Smt. Veena, in our view, gives support to the version of PW-7 Shyam Babu and PW-6 Sarla Devi. Thus, under the circumstances, we do not find any infirmity in the conclusion of the learned Trial Court to the effect that the appellant along with his co-accused had actually stabbed the deceased Sohan Lal and PW-7 Shyam Babu resulting in death of Sohan Lal and simple injury to Shyam Babu.

7. The learned Amicus Curiae has submitted that the case of the prosecution is that the appellant Ram Avtar was arrested on 12.09.1990 and at that time, he was wearing blood stained pant and shirt, which story, according to the learned Amicus Curiae, is highly improbable because under natural course of circumstances, first reaction of the appellant, if he had committed the murder, would have been to get rid of his blood stained clothes which had a potential to establish his culpability. He has urged us to infer from the aforesaid circumstance that this is a case of unfair investigation by the police.

8. The submission made by the learned Amicus Curiae is speculative in nature. There can be so many reasons for the appellant not trying to get rid of the blood stained clothes. We do not propose to speculate on those reasons. From the discussion above, it is apparent that the eye witness account in this case is natural and consistent with the story of the prosecution and there an aura of truth around the testimony of the witnesses, one of them being injured Shyam Babu, who himself is the victim of the occurrence.

9. The learned Amicus Curiae has further submitted that prosecution case is doubtful because the weapon of offence, i.e., dagger has not been recovered.

10. We do not find any merit in this submission. Non-recovery of dagger by itself is not a circumstance to reject otherwise truthful and reliable testimony of the witnesses.

11. Lastly, it is submitted by the learned Amicus Curiae that the learned Trial Court has committed an error in law by convicting the appellant under Section 302 IPC, whereas as per the facts and circumstances of the case, the case of the appellant falls within the purview of culpable homicide not amounting to murder punishable under the first part of Section 304 IPC.

12. The facts which emerge from the evidence are that the appellant and his co-accused (absconding), armed with deadly weapons, i.e., knives, had entered the house of the deceased Sohan Lal in the late hour of the night when he was about to sleep and stabbed him brutally. As per the version of PW-12, Dr. L.K. Barua, who conducted post mortem on the dead body, the deceased had suffered as many as eight incised wounds and out of which, four injuries were individually sufficient to cause death in the ordinary course of nature. From the aforesaid circumstances, no inference other than a clear intention to murder can be drawn. Therefore, in our view, the learned trial Judge has rightly convicted the appellant under Section 302 IPC.