Full Text
JUDGMENT
RAKESH @ BHOOP SINGH ..... Appellant
Through: Ms.Charu Verma, Advocate
Through: Mr.M.N. Dudeja, Advocate
HON'BLE MR. JUSTICE AJIT BHARIHOKE
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. The appellant Rakesh has preferred the instant appeal against the judgment of the learned Additional Sessions Judge in Sessions case No.12/1995 arising out of FIR No.6/90, P.S. Parshad Nagar, vide which he has been convicted under Section 302 IPC for having committed murder of the deceased Prem Singh and also under Section 27 of the Arms Act and the consequent order on sentence.
2. Briefly stated the case of the prosecution is that in the 2009:DHC:3141-DB fight near public toilets Arya Samaj Road, New Delhi was conveyed by the Police Control Room to the Police Station Parshad Nagar. It was recorded in the daily diary as entry No.9A. Copy of the DD report was given to S.I. Ved Parkash who proceeded to the spot of incident along with Constable Virender. He found that the injured had already been removed to the hospital. So, S.I. Ved Parkash went to JPN Hospital, there he met PW Joginder, brother of the deceased and recorded his statement (Ex.PW 5/A) and sent it to the Police Station for registration of case and on the basis of the aforesaid statement, FIR No.6/90 under Section 307 IPC was registered. Prem Singh died on 6th January, 1990 at 7.15 PM.
3. PW Joginder had stated to the Investigating Officer that at about 10.00 a.m. in the morning, a boy met him on the road and told him that his brother has been stabbed with knife by one person. On this, he immediately reached near the tea shop, Arya Samaj Road and saw his brother in injured condition having stabbed injuries on his neck, abdomen and chest. His brother deceased Prem Singh told him that he was stabbed by one Rakesh, R/o Anand Parbat on the issue of some money transaction. Thereafter he took his brother in a TSR to RML Hospital from where he was referred to JPN Hospital due to the strike of nurses.
4. S.I. Ved Parkash went to the spot and recorded statement of the witnesses, he prepared site plan of the place of occurrence, on the information conveyed by PW Makhan Singh. He seized the blood stained earth and sample earth from the spot and searched for the appellant accused but with no result. Further investigation was taken over by Inspector Hoshiyar Singh. He arrested the accused appellant on 7th January, 1990. On interrogation, the appellant accused made a disclosure statement Ex.PW-5/C wherein he disclosed that he could get the weapon of offence and the clothes which he was wearing at the time of occurrence recovered. Pursuant to the disclosure statement, the appellant led the police party to House No. J-11, Punjabi Basti, Anand Parbat and from there, he got recovered the dagger Ex.P[3], his pant Ex.P[4], shirt Ex.P[5], pair of shoes Ex.P1/1 to 2 and cover of the dagger Ex.P[6]. On completion of necessary formalities of investigation, the appellant was sent for trial.
5. The appellant was charged for offences punishable under Section 302 IPC and Section 27 of the Arms Act. He pleaded not guilty on both the counts and claimed to be tried.
6. Learned Amicus has submitted that the trial Court has erred in not appreciating that the prosecution case is based upon the motive i.e., dispute regarding loan transaction of Rs.1,050/between the deceased and the appellant, eye-witness account and the recovery of weapon of offence and incriminating articles at the instance of the appellant accused.
7. Regarding motive learned Amicus has submitted that the who is brother of the deceased has deposed that there was no previous quarrel at all between the deceased and the appellant. In view of the aforesaid statement, learned trial Court ought to have held that the prosecution has failed to prove motive on the part of the appellant to kill the deceased.
8. We do not find any merit in the above submission of learned Amicus. It would be seen from the record that PW[7] Dev Karan, though he is hostile to the case of prosecution, on the point of actual stabbing has categorically stated that on 6th January, 1990, at about 10.30 a.m. while he was going to take tea via public toilets, he noticed the deceased Prem and the appellant accused were having altercation with each other over the payment of some money. He has not been cross-examined on this aspect by the accused, therefore, his aforesaid version is deemed to have been admitted as correct. Otherwise also version of PW[7] Dev Karan finds corroboration from the testimony of PW[8] Makhan Singh who has also stated that at the relevant time, he was using public toilet and from within, he over-heard the deceased demanding money from the appellant Rakesh. From the aforesaid evidence, it is amply proved on record that there was some money dispute between the deceased and the appellant which culminated in the actual occurrence.
9. The learned Amicus Curiae has submitted that learned trial Court has committed a gross error by convicting the accused on the basis of eye-witness account of PW[7] Dev Karan and PW[8] Makhan Singh which was not put to the appellant in his statement under Section 313 Cr.P.C. for affording him an opportunity to explain the said incriminating evidence against him. In support of this contention, she has relied upon the judgment in the case of State of Goa vs. Subhash Ghogle, 2008 (14) Scale 75 and Lalu Mahto & Anr. Vs. State of Bihar, 2008 (3) JCC 1800.
10. There can be no dispute on the legal position that the incriminating evidence which has not been put to the accused in a statement under Section 313 Cr.P.C. cannot be taken into account for basing conviction. However, aforesaid argument of the appellant has lost significance because we, during the proceedings taking note of the grievance of the appellant, have cured that irregularity making use of Section 465 Cr. P.C. and recorded supplementary statement of the appellant Rakesh regarding the eye-witness account of actual occurrence. The appellant has taken a defence that he has been falsely implicated in this case. He had strained relations with PW[8] Makhan Singh and because of that reason he has deposed against him.
11. The learned Amicus Curiae has further submitted that in the instant case, only two alleged eye-witnesses have been examined by the prosecution. Out of them PW[7] Dev Karan has turned hostile and not supported the case of the prosecution. So far as PW[8] Makhan Singh is concerned, defence of the accused is that he had strained relations with Makhan Singh because of professional rivalry and, therefore, Makhan Singh has deposed falsely against him. Thus his testimony has to be analysed in that background. She has pointed out that Makhan Singh admittedly is a resident of Bulandshahar, U.P. and not of Arya Samaj Road, New Delhi. He was employed in the factory of the deceased Prem and his working hours were from 8.00 a.m. to 5.00 p.m. and according to him, his factory was at a distance of 500 feet from the place of occurrence. She has submitted that 6th January, 1990 being a working day of the factory, PW[8] Makhan Singh was supposed to be working in the factory at 10.30 a.m. when the incident allegedly occurred. As such his presence at the spot of occurrence at the relevant time is highly doubtful. In this view of the matter, she has submitted that the testimony of PW[8] is not reliable and the appellant is entitled to the benefit of doubt.
12. We do not find any merit in the above argument of the learned Amicus Curiae. Perusal of testimony of PW[8] Makhan Singh would reveal that in the cross-examination, he has stated that he left the factory for going to public toilet at about 9.45 a.m. after informing his brother-in-law Kishori. Therefore, there is nothing unnatural in the witness being present in the public toilets Arya Samaj Road at the relevant time. Further it would be seen from testimony of PW[7] Dev Karan, though he has not supported the case of prosecution on the point of actual stabbing of the deceased by the appellant, has stated that at about 10.30 a.m., he noticed accused and the deceased having altercation on the issue of payment of money. Thereafter he went to take tea MAAR DIYA BACHAO” and he rushed towards the spot of occurrence. He saw deceased Prem, who was bleeding, being chased by the appellant having knife in his hand. No suggestion was given to PW[7] that such a scene did not occur, therefore, there is no reason to disbelieve his version which gives sufficient corroboration to the testimony of PW[8] Makhan Singh who has categorically stated that he saw the appellant Rakesh giving knife blow on the deceased. Thus there is no scope for any doubt against the correctness of version of PW[8] Makhan Singh.
13. The learned Amicus Curiae has submitted that perusal of MLC of the deceased Ex.PW9/A would show that deceased was brought to the hospital by one Pappu which belies the story of the prosecution that PW[5] Joginder took him to the hospital. This argument of the learned Amicus Curiae is without any substance because PW[8] Makhan Singh in his cross-examination has explained that PW[5] Joginder the brother of the deceased is also known as Pappu.
14. The learned Amicus Curiae has further submitted that the prosecution has left lacuna in the trial by not producing the doctor who prepared the MLC Ex.PW9/A and also not showing the weapon of offence to PW18 Dr.P.C. Dixit, who conducted the postmortem on the dead body of the deceased, to seek his opinion whether the injuries on the deceased Prem could have been caused by the aforesaid dagger. This, as per learned Amicus Curiae, has caused a grave prejudice to the appellant, therefore, he ought to have been extended the benefit of doubt.
15. We do not find any merit in this contention firstly, because so far as non-production of Dr.Sanjeev Aggarwal for proving the MLC prepared by him is concerned, PW[9] Nand Lal, Record Clerk, RML Hospital, who has proved MLC Ex.PW9/A by way of secondary evidence, has explained that Dr.Sanjeev Aggarwal has left the service of the hospital. Therefore, it is apparent that he could not have been produced without undue delay and expense. Coming to the other limb of the argument, it would be seen from the testimony of PW18 Dr.P.C. Dixit that he has categorically stated that injury no.1, 2, 4 and 5 on the dead body of the deceased could be caused by a sharp edged weapon. Which opinion is consistent with the story of the prosecution that the deceased was stabbed by the accused with a knife/dagger. Therefore, in our view non-production of the dagger before the concerned doctor to seek his opinion, does not materially affect the outcome of this case particularly when the testimony of the eye-witness is found to be reliable.
16. The learned Amicus Curiae has submitted that the recovery of the weapon of offence i.e. dagger Ex.P[3] and incriminating articles including blood stained shirt Ex.P[5] of the appellant at his instance is highly doubtful, firstly, because there is no public witness to the recovery, secondly, it would be seen that even as per the testimony of PW17 S.I. Ved Parkash and PW19 ACP Hoshiyar Singh, the house from where the recovery was affected was open and it belonged to the friend of the deceased. She has argued that since the house was open, anybody could have access to the aforesaid house and have placed the blood stained dagger as well as blood stained shirt in the aforesaid house.
17. We are not convinced with the above referred submission by the learned Amicus Curiae. There is no principle of law that without corroboration by independent witnesses, the testimony of police personnel, which is otherwise reliable, cannot be relied upon. Seeking corroboration to the testimony of police personnel is only a rule of prudence. It is a known fact that in our country, public persons are generally reluctant to participate in criminal investigations. Therefore, to our mind, it is not a proper judicial approach to suspect the credibility of police officers without good grounds. It would be seen from record that the Investigating Officer ACP Hoshiyar Singh has explained the absence of independent witnesses to the recovery by stating that he did summon the public persons from nearby houses but they refused to join the investigation. Therefore, also we do not find fault with the investigation which may make the credibility of the Investigating Officer and PW-17 S.I. Ved Parkash suspect. Further, on perusal of testimony of PW-19 ACP Hoshiyar Singh, which finds corroboration by the testimony of PW-17 S.I. Ved Parkash, it is apparent that the accused led the police party to the aforesaid house and took out the dagger Ex.P[3] and other because the house from where the recovery was affected belonged to the friend of the appellant, it cannot be inferred that those articles were not recovered at the instance of the appellant pursuant to his disclosure statement. The fact that the house belonged to the friend of the accused appellant gives an assurance that he could have access to the aforesaid house. Further it transpires from the evidence that the appellant got recovered the dagger and other articles from the „Parchchatti‟ which provides sufficient indication to the fact that the appellant had a knowledge that the aforesaid articles including the weapon of offence were concealed there.
18. The learned Amicus Curiae has further submitted that PW[7] Dev Karan has stated that while he was taking tea near the spot of occurrence, he heard the noise „MAAR DIYA MAAR DIYA BACHAO” and then he ran towards the spot and saw deceased Prem, who was bleeding, being chased by the appellant having knife in his hand. She has submitted that if the aforesaid testimony is true, then there should have been a tea shop near the spot of occurrence. However, on perusal of site plan Ex.PW17/B prepared by the Investigating Officer, it transpires that no tea shop has been shown near the spot of occurrence. She has thus urged us to infer that the prosecution story is doubtful.
19. We find no merit in this contention. If the Investigating Officer has not shown the location of the tea shop in the site plan, it cannot be taken as a ground to reject the testimony of the prosecution witnesses which is otherwise natural and trustworthy. Further, if at all the appellant really wanted to make an issue out of this discrepancy in the site plan, it was expected of him to put the site plan to the witnesses including PW17 S.I. Ved Parkash in their cross-examination to pin point the location of the tea shop or to find out whether or not there was a tea shop actually located near the spot of occurrence. Since he has not opted to do so, now he cannot be permitted to take advantage of this minor discrepancy if at all this is a minor lapse on the part of the Investigating Officer.
20. The learned Amicus Curiae has further submitted that as per the testimony of the recovery witness, there were no blood stain on dagger Ex.P[3] when it was recovered, whereas CFSL report Ex.PX suggests that that the dagger when sent for serological examination gave positive test for blood. She has submitted that in view of that contradiction, the evidence of recovery becomes highly doubtful. We do not find any merit in this contention because perusal of the seizure memo Ex.PW5/D would reveal that in the seizure memo, it is clearly mentioned that front portion of the recovered dagger was stained with blood.
21. Lastly, the learned Amicus Curiae has submitted that even if for the sake of argument, the case of prosecution is taken to be true, then also given the circumstance that the occurrence took place as a result of altercation regarding recovery of minor sum of Rs.1050/- at the spur of movement, no intention could be imputed to the appellant for committing the murder of the deceased. Therefore, at the most, the case of the appellant falls within the definition of culpable homicide not amounting to murder punishable under Section 304 IPC and not under Section 302 IPC. In support of this contention, she has relied upon the judgment in the case of Ramchandra Dhondiba Kaware Vs. State of Maharashtra, 2009 (2) Scale.
22. We do not find any merit in the above contention. The facts which emerge from the evidence of the prosecution is that the appellant had taken advance of Rs.1050/- from the deceased which fact he has admitted in his statement under Section 313 Cr.P.C. On the fateful day, there was an altercation between the appellant and the deceased regarding return of that money. The appellant was carrying a knife/dagger at public place which itself is an offence and that he stabbed the deceased brutally. From the testimony of PW18 Dr.P.C. Dixit who conducted the postmortem of the deceased as many as 6 injuries were found on the body of the deceased out of which two injuries were found as a result of operative procedures, remaining four injuries were as below:- “1. Stiched incised steb would 2.[5] cm obliquly placed over upper lateral part of left side neck, 3 cms. below the left ear lobule and 10.[5] cm below and lateral to left angle of mouth. On removing the stiches the upper angle is acute and the lower angle was obtuse. The wound was going downwards, backwards and medially in the underlying tissue and perotid gland upto an extend of 4.[5] cm. approximately. The lower angle is 152 cms. above the left heel.
2. Incised stitched steb would 2 cm, transversely placed over front of neck, 1cm.right to middleline and 8 cm. above the medial end of right clavical. On removing the stitches lateral angle was acute and medial one was obtuse. The wound was going medially, downwards and backwards upto an extent of 2.[5] cm to out the Anterior Jugular vein on the right side. The lateral angle was 148cms. above the right heel.
4. Stiched incised stab would 4.[5] cm. obliguly placed over upper part of abdomen right side. 1.5cm. right to middle line and 10.5cm. below and medial to right nipple. On removing the stitches the upper angle was acute. Lower angle was obtuse. The wound was abdominal cavity deep. The lower end was 118 cm. above the right heel.
5. Incised stab would 2.[8] cmX[1].[2] cms pindle shaped obliquely placed over lower outer part of right side abdomen, 15 cms. right to midline and 21 cms. below and lateral to right nipple. The lower angle was acute and upper one was obtuse. The wound was going upwards backwards and medially in the underline mussletissue up to an extent of 4.[5] cm. The lower angle was 111 cm above the right heel.
23. In the opinion of PW18 Dr.P.C. Dixit, injuries 2 and 4 were sufficient to cause death in ordinary course individually as well as collectively. As many as 4 injuries were given to the deceased, who was unarmed, on vital parts of the body namely the neck and the abdomen. Injury no.2 was so grave that it caused a wound going medially downwards and backwards upto the extent of 2.[5] cm to cut the anterior jugular vein on the right side and even the injury no.4 was so grave that on removing the stitches it was seen that the wound was abdominal cavity deep. This shows the state of mind of the deceased and leaves no scope for doubt that the above referred injuries were inflicted by the appellant with a clear intention to cause death of the deceased or to cause such injuries which in all eventualities were likely to cause death of the deceased.
24. We do not find any infirmity in the conviction recorded by learned trial Judge under Section 302 IPC. In view of our discussion above, we do not find any merit in the appeal which is accordingly dismissed.
25. The appellant Rakesh @ Bhoop Singh is on bail. His bailcum-surety bond is, accordingly cancelled. He is ordered to be taken into custody to undergo the remaining sentence as awarded by the learned Additional Sessions Judge. AJIT BHARIHOKE, J. August 07, 2009 SANJAY KISHAN KAUL, J. gm