Sunder Lal v. State

1. The present appeal instituted under the provision of section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C’) assails the judgment dated 21.9.2001 and the order on sentence dated 24.9.2001, rendered by learned Additional Sessions Judge, Tis Hazari, Delhi, in Session Case No. 121/1997, titled as ‘State vs. Munna & Ors’, emanating from F.I.R No. 222/1997 under section 302/34 of the Indian Penal Code, 1860 (hereinafter referred to 2019:DHC:4085-DB as ‘IPC’) registered at Police Station Jahangirpuri; whereby the appellant, Sunder Lal, was convicted for the offence under Section 302 IPC read with Section 34 IPC and sentenced to undergo imprisonment for life along with a fine of Rs. 2000/-. In default of the payment of fine, the appellant has been sentenced to further undergo a further rigorous imprisonment of 2 months. The benefit of section 428, Cr.P.C, has been granted to the appellant.

2. The case of the prosecution as elaborated by the learned Trial Court is briefly encapsulated as follow: - “ On 23.4.97 wireless operator gave an information that lady constable Prabha had given wireless message that knife was inflicted on one person in juuggies at A-1 Block, Jahangir Puri, Shiva Marker, Mangal Bazar Road. The same was recorded as DD No. 60B. The said information was conveyed to Inspector and inspector reached at the spot viz opposite A-1 Market near jhuggi. He found HC Govind Singh and constable Dhiraj present at the spot ad one person wo name and address was known as Pardeep Kumar S/o Narain Dsss aged about 35 years in dead condition. On inspection of dead body there was sign of injury and blood clot with sharp edged weapon on the left side of body and injury and clot of blood on the right side ear of the body and blood was ossing from on both the said injuries. The deceased was wearing pant of kathai colour, underwear (Katch) of blue colour. There was torn baniyan and without chappal in his legs/ there was one leg of cot towards head of the dead body. The head of the dead body was towards southern side and legs were on northern side. Smt. Munni Devi was present at the spot and her statement was recorded. In her statement Smt. Munni Devi stated that at about 8 P.M. on 23.4.97 she was sitting on cot in front of her jhuggi, her son Ajit aged 8 years and Dalip aged 10 years were coming from Mangal Bazar road. After seeing Jagran when they reached at jhuggi near park in front of A-1 market her neighbor Rashid S/o Munna @ Total had caught hold her son Dalip and started beating him. She stood up and tried to rescue her son. In the meantime, Rani W/o Munna also came and caught hold her hairs and started quarrelling with her. After hearing noise of the quarrel her husband Pardeep Kumar also reached there and Munna @ Total also came and they started quarrelling, during quarrel with them, Munna called Anwar and Sunder and went to his jhuggi and came with a churiin his hand and Sunder came with leg of cot and told that they will finish Pradeep. Anwar and Rani W/o Munna and her son Rashid gripped her husband Pardeep Kumar and Munna @ Total inflicted knife blow on the chest of her husband Pardeep Kumar and also inflicted on the head on her right side of her husband and Sunder attacked with leg of cot on her husband Pardeep Kumar as a result of which her husband became in pool of blood and fell down and Sunder left the spot, after leaving the leg of cod there. Said other person also left the spot. Her husband Pardeep Kumar expired at the spot. Rani W/o Munna, Rashid S/o Munna, Anwar, Sunder and Munna @ Total had caused the deathof her husband Pardeep Kumar. On the basis of said statement of Smt. Munni Devi a ruqqa was prepared and sent to the police station for registration of F.I.R and on inspection of the dead body said inspector investigated the matter and got the site photographed. Site plan was prepared and the exhibits were taken into possession from the spot. The post mortem was conducted on the dead body of Pardeep Kumar and after post mortem dead body was handed over to his heirs on 24.4.97. All the accused Munna, Anwar and Sunder were arrested. Munna @ Total made a disclosure statement and got recovered a knife and a case u/s 27/25/54/59 Arms Act was registered. Accused Anwar and Sunder Lal made disclosure statement and all the three accused pointed out the spot. The statement of witnesses were recorded and opinion of doctor was obtained. The exhibits were sent to office of F.S.L. the proceedings U/s 82/83 Cr.P.C. against Rani and Rashid were conducted. The names of accused Rani and Rashid were mentioned in column No. 2. After completion of investigation challan U/s 302/34 IPC and 25/27/54/59 Arms Act was prepared and filed before concerned Metropolitan Magistrate.”

3. Upon completion of investigation, charge-sheet was filed for the offences punishable under section 302/34 IPC and 25/27/54/59 Arms Act, 1959 and charges were framed against the appellant under sections 302 read with 34 IPC. The appellant pleaded not guilty and claimed trial.

4. To establish the case against the appellant, the prosecution examined 17 witnesses at trial.

5. The statement of the appellant under section 313 Cr.P.C. was recorded, wherein he denied the case of the prosecution and stated that he was lifted from his house and falsely implicated in the case. The appellant did not lead any defence evidence in his support.

6. Broadly speaking, the Trial court convicted the appellant (along with his co-accused, Munna) on the statement of the eye witnesses, Smt Munni Devi (hereinafter referred to as ‘PW-1’) and Dalip (hereinafter referred to as ‘PW-4’) coupled with the circumstantial evidence of post mortem report and the report of the Forensic Science Laboratory (hereinafter referred to as ‘the FSL’).

7. Mr. Akshay Chandra, learned counsel on behalf of the appellant, asseverated the innocence of the appellant and that the appellant was falsely implicated in the present case. He assails the impugned judgment of the Trial court on the following grounds: a. That the trial court erred in convicting the appellant by relying on the testimonies of PW-1 & PW-4, in as much as, their testimonies were at variance with the medical evidence in the present case; b. That there is a contradiction in the statement of PW-1 as she stated in her testimony in court that Munna exhorted that ‘Pradeep ka kaam tamaam kar dete hai’, however, in her complaint given to the police [Ex.PW1/A], she stated that Sunder gave such exhortation; c. That there were improvements in the evidence of PW-4 in his testimony in court, which were not stated by him to the police in his statement under section 161 Cr.P.C., to following extent: i. that Rani (wife of the co-accused) held the hair of his mother, PW-1, ii. that Munna stated to Anwar and Sunder that let us finish-off Pradeep (Pradeep ka aaj kaam tamam kar dete hain), iii. that Sunder had struck Pradeep in the head with the leg of the cot; d. That PW-1 & PW-4 being the wife of the deceased and the son of the deceased, respectively, were interested witnesses and as such their testimonies could not be considered trustworthy and reliable; e. That the motive to commit the present offence was not proved in the Trial court as only PW-1 alleged the same and no other independent witness or evidence was adduced to establish motive to commit the present offence; f. That no finding was given by the doctor in the post mortem report that, the deceased was hit in the head with the leg of the cot and as such, the appellant could not have been said to have caused the death of the deceased in absence of such finding; g. That common intention under section 34 IPC could not be attributed to the appellant, in the absence of a finding of injury on head of the deceased and that the only act attributed against him was of being called to the spot and going to bring the leg of the cot; h. That in the testimony of PW-10, the doctor who conducted the post mortem of the deceased, it was stated that the cause of death was Cardiac Temponade (heart failure consequent to injury no. 2) and that in the of post mortem report it was opined that “Skull Bones” and “Base of Skull” were found intact and that therefore, the appellant could not have said to have caused the death of the appellant by striking him on the head with the leg of the cot. All the above circumstances, it is asserted, render the impugned judgment of the Trial court liable to be set aside, qua the appellant.

8. To drive home his argument on the unreliability of the prosecution witnesses, learned counsel on behalf of the appellant relied on the judgment of the Hon’ble Supreme Court of India in Thaman Kumar v. State, reported as 2003 6 SCC 380 wherein it was observed that: “The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye-witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful.”

9. Per contra, Ms. Radhika Kolluru, Learned Additional Public Prosecutor appearing on behalf of the State, assiduously supported the impugned judgment of the trial court, and asserted that the statements of PW-1 & PW-4 were creditworthy, reliable and as such, minor variations in their statements could not discredit them. Ms. Kolluru also pointed out that, both being injured eye witnesses, their statements have a higher sanctity in law.

10. It is further submitted on behalf of the State that, the appellant was convicted by the Trial court under section 302 read with section 34 IPC; hence, the role of the appellant could not be seen in isolation, but has to be examined in light of the acts and conduct of the other accused persons, as well as his own.

11. We have heard counsel appearing on behalf of the parties and perused the evidence on record.

12. To effectively adjudicate the present appeal, it is incumbent upon us to reproduce the entire testimony of PW-1 & PW-4, both of whom were injured eye-witnesses in the instant case, before the trial court. The testimony of PW-1 is as follows: “®m ] Sm] n Æ W mदेवी w/o ÿUm Yकुमार r/o Jhuggi A[1] ] kD¥ Nजहाँगीर पूरी lUÐa m ससपथ ÿlUYकुमार मेरा घर वाला था 23.4.97 को ] §अपने घर के बाहर चारपाई पर अपनी Ln µ Fm के सामने बैठी थी रात के 8 बजे का समय था (Eight PM) मेरे लड़के दलीप व अजीत जागरण देखने गए hò > थे| जागरण मेरी Ln µ Fmके नजदीक हो रहा था | मेरे लड़के आठ बजे रात के करीब वािपस आए | मुलिजम ] n Æ W kहािजर अदालत के लड़के रासीद ने मेरे लड़के से झगड़ा करा वह ] n Æ W kDì Ln µ Flh के पास थे रासीद ने मेरे लड़के दलीप का मारा | ] §वहाँ Yhò I mकर बीच बचाओ करा | ] n Æ W kDì घरवाली रानी भी वहाँ आ गई उसने मेरे बाल िखंचे | मेरे साथ झगड़ा करा | मेरी आवाज सुन कर मेरा आदमी ÿUm Yवहाँ आ गया उसके बाद ] n Æ W kहािजर अदालत भी वहाँ मौके पर आ गया व उसने भी h] ¤मारना e n łकर िदया | ] n Æ W kने अनवर व सुंदर को आवाज दी वह भी मौके पर आ गया ] n Æ W kबोला Dì आज ÿUm Yका काम तमाम कर दो ] n Æ W k अपनी Ln µ Fmमे गया वह चूरी लेकर आया | मूo सुंदर चारपाई का पावा लाया | अनवर रासीद व रानी ने मेरे आदमी को पकड़ िलया व ] n Æ W kन मेरे आदमी Dì छुरी छाती व िसर पर मारा व सुंदर मूo ने मेरे पित के िसर पर चारपाई का पावा मारा िजसके लगते ही मेरा आदमी िफर गया | सब मूo वहाँ से भाग गए | ] §पुिलस Ö N te Wगई | पुिलस मौके पर आई | चारपाई का पावा मौके पर छोड़ गए | ] § W t मौके पर पुिलस को िशकायत िलखाई exhibit/A मेरे UÖ ES h§| ] §मुलिजम ] n Æ W k व मूo सुंदर हािजर अदालत के शनाखत करती hó 1| यह वही e ³g है lKÆ hxW tमेरे आदमी को मारा | ] §मूo रानी वह रासीद को भी जानती hó 1³^Ō lD वह मेरे पड़ौस ] ¤रहते थे | Xxxx by Sh V K Jain Con for accused जागरण मेरी Ln µ Fmसे 100-150 कदम Dì दूरी पर हो रहा था | झगड़ा 10-20 िमंट तक चला | जब झगड़ा hò 5 ] xhÐa tके कई लोग मोजूद था िकसी ने भी हमे न बचाया मेरे पित का चारपाई का पावा से एक बार मारा व छूरी दो बार मारी | उस समय मुलिजम ] n Æ W kके भाई बगेरा भी रहते थे | Public के ऐसे िकसी आदमी माँ नाम न बता सकती hó £ 1जो मौके वार दात के समय मौजूद थे | ] §पुिलस Ö N te Wपैदल गई थी | 10-15 िमंट मे वहाँ Yhò I गई | थाने जाने से पहले ] § W ttelephone 100 न o पर करा | मेरा Ê^kWपुिलस ने मौके पर िलखा था |मेरे Ê^kWपुिलस ने थाने ] ¤न िलखा | पुिलस वाले dk³^ के आधे घंटे से पहले आगए ] §आज court मे सुबह 10 बजे आ गई थी यह गलत है Dì पुिलस ने मुझे आज ³^kÊ^kWदेना है वह समझाया था | पुिलस ने मुझसे पूछ ताछ Dì पुिलस ने और ³^kकारवाई Dì ] §न बता सकती hó 1| मेरे सामने दलीप मेरे लड़के को दो I kN ¤रासीद ने मारे इस dk³^tसे 15-20 िदन पहले हमारा सुंदर से झगड़ा hò 5 था खुद कहा तब उसने मुझे VÌDì दी थी Dì व मेरे आदमी को दो महीने ] ¤मार U¤ Ft| हमने सुंदर के माँ बाप को िशकायत Dì थी और पुिलस ] ¤िशकायत न Dì थी यह गलत है Dì मेरे सामने कोई झगड़ा न hò 5 यह गलत है ] § झूठी गवाही दे रही hó 1| यह गलत है Dì मूo मौके पर मौजूद न थे |”

13. The testimony of PW-4 is as follows: “दलीप S/O ÿ] xUage 13 years r/o Ln µ FmA-1 Market जहाँगीर पूरी lUÐa m ससपथ मुझे पता है Dì ] §अदालत ] ¤गवाही देने आया hó 1] ¤gkSdéD±k] ¤पढ़ता hó 1| The witness is able to give answer to question let his statement be recorded on oath ] §जो Dhó Fkg¸I बोलूँगा ससपथ 23.4.07 को ] §रात के 8 बजे मंगल बाज़ार ] ¤जागरण देख कर अपने घर Dì तरफ जा रहा था | ] §Mother Dairy के पास था रानी Dì a „ Dì व कुछ और [ ¸I tआ रहे थे मेरे हाथ रानी Dì a „ Dì के लग गया रानी Dì a „ Dì ने मुझे गाली दी |] § W tउसे गाली देने के िलए मना करा उसने अपने भाई रासीद को आवाज दी रासीद वहां आ गया | रासीद मुझे मारने लगा मेरी ] Ì] mमुझे छुड़ाने के िलए आई मेरी ] Ì] mमुझे छुड़ा रही थी तभी रानी वहाँ आ गई | रानी मेरी ] Ì] mसे लड़ाई करने लगी | रानी ने मेरी ] Ì] mके बाल पकड़ िलए | इतने ] ¤मेरे िपता जी वहां आ गए | मूo ] n Æ W kहािजर अदालत भी आ गया ] n Æ W kमेरे िपता जी से लड़ने लग गया | ] n Æ W kअपने घर गया व अनवर व सुंदर से कहा Dì ÿUm Yका आज काम तमाम कर देते h§| ] n Æ W kचाकू लेकर आया सुंदर के पास चारपाई का पावा था | अनवर भी मौजूद था | रासीद व रानी भी मौजूद थे | मेरे िपता को रानी, रानी के लड़के रासीद व अनवर ने पकड़ िलया | ] n Æ W k ने मेरे िपता Dì छाती पर िसर पर चाकू मारा | सुंदर ने मेरे िपता के िसर पर चारपाई का पावा मारा मेरे िपता के खून बहने लगा िफर वह िगर गए | ] §मूo सुंदर हािजर अदालत के e W k´ S करता hó 1| Xxx by Sh V K Jain Adv ] §वहां से अपने चाचा के घर चला गया था | जब ] §अपने चाचा के साथ आधे घÁ N t बाद आया तो पुिलस मौजूद थी पुिलस ने मेरे से पूछ ताछ Dì थी | पुिलस ने थाना ] ¤मेरे से पूछ ताछ Dì थी | अगले िदन को भी ] §थाने अगले िदन गया था िदन ] ¤गया था | ] §थाने ] ¤ आधे GÁ N tरहा | ] §उससे अगले रोज़ भी थाने गया था | उस िदन मुझसे कोई पूछताछ न Dì | 25.4.97 को मेरे कोई Ê^kWन hò > | ] § W tपुिलस के मेरी माँ के बाल पकड़ने Dì बताई थी confronted with the statement mark A of the witness where it is not recorded | यह भी पुिलस को बताया था Dì दलीप का काम तमाम कर देते h§confronted with mark A statement where it is not recorded. पुिलस को बताया था Dì मू o सुंदर ने मेरे िपता जी के िसर पर चारपाई का पावा मारा confronted with mar A where not recorded | मेरे साथ मेरी दादी आई है यह गलत है Dì मेरी दादी ने मुझे ] n a lƒ ] Ō को िदखाया है | झगड़ा करीब आधे घंटे तक चला | जहां झगड़ा hò 5 था वहाँ से हमारी Ln µ Fmका एक िमनट का _kÖ Skहै | यह सही है Dì जब झगड़ा hò 5 आस पास के लोग 6³DOtहो गए थे | 10-20 आदमी 6³DOtहो गए थे | मुझे नी पता पुिलस ने उनके Ê^kWिलखे | यह गलत है Dì मूo मौके पर मौजूद न थे | यह गलत है Dì कोई झगड़ा न hò 5 यह गलत है Dì मूo हािजर अदालत ने मेरे िपता को चाकू वह चारपाई के पावा से न मारा | यह गलत है Dì ] ¤अपनी माँ के कहने पर झूठी गवाही दे रहा hó 1|”

14. From a holistic and conjoint reading of the above testimonies which are credible and trustworthy and have not been shaken in cross examination, it is evident that both PW-1 & PW-4 have categorically testified that the appellant came to the spot on being called by Munna (co-accused) and exhorted that, “Pradeep ka aaj kaam tamam kar dete hain”. It is also unequivocally testified that subsequent to the above exhortation, the appellant went and brought the leg of the cot, struck the deceased on his head, consequent upon which, the deceased collapsed on the spot.

15. Both, PW-1 & PW-4, are injured eye witnesses. The testimony of an injured eye witness is kept on a higher pedestal and is accorded a special status in law as held by the Hon’ble Apex Court in Abdul Sayeed vs. State of Madhya Pradesh, reported as (2010) 10 SCC 254, reproduced as follows: “The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.”