Delhi High Court
Ramesh Kumar vs The State (Delhi Admn.) on 17 November, 1989
Equivalent citations: 1990CRILJ255
JUDGMENT V.B. Bansal, J.
1. Ramesh Kumar s/o Parbhat was tried for the offence of murder under S. 302, I.P.C, on the allegations that on 3rd July, 1983 at 7.45 p.m. at Chowk Argarha, Chandni Chowk. Delhi committed murder by intentionally or knowingly causing the death of Dinesh Kumar and thereby committed an offence punishable under S. 302, I.P.C. He has been found guilty of the said offence and sentenced to imprisonment for life along with a fine of Rs. 100/- or in default further R.I. for one month vide judgment and order dated 25th April, 1986 by Shri V. S. Aggarwal, Addl. Sessions Judge, Delhi.
2. Feeling aggrieved from his conviction and sentence Ramesh Kumar has filed this appeal.
3. Briefly stated the prosecution story is as under :-
Dinesh Kumar was brought to the casualty of LNJPN Hospital, New Delhi by Raju (PW 3) with alleged history of having been stabbed by some one. The injured was examined by Dr. Akshay Bhardwaj vide MLC (OPD Card) Ext. PW 17/A proved by Record Clerk K. K. Chhibar (PW 17) since the doctor had already left the hospital and his present whereabouts were not known. The injured was declared as brought dead having lacerated wound and one incised wound.
4. Constable Devi Ram (PW 12) was working as a Duty Constable in the LNJPN Hospital who gave information on telephone to P.S. Kotwali on the basis of which constable constable Hans Raj (PW 13) recorded D.D. No. 37-B (Ext. PW 13/A) at 9.05 p.m. about the bringing of Dinesh Kumar in the casualty of the hospital. Constable Hans Raj gave copy Ext. PW 13/A of this D.D. entry to Inspector O. P. Tiwari SHO P.S. Kotwali who along with S.I. Dharam Pal and other officials left the police station for going to LNJPN Hospital.
5. Inspector O. P. Tiwari (PW 13) reached LNJPN Hospital and met Ashok Kumar s/o Shri Anant Ram r/o 1933, Argarha, Chandni Chowk, Delhi whose statement was recorded. It was inter alia stated by him that he had been residing in the Argarha and was running a tea shop in the street, that on that day at about 7.45 p.m. after closing his shop he was going to his house and at Chowk Argarha Parbhat Ram Altar s/o Godha Ram and Dina Nath Bhaiyan s/o Jagdish having a quarrel when Ramesh s/o Parbhat r/o 1933 Argarha was standing with a danda in his hand for the help of Ram Avtar, that in the meantime Dinesh Kumar resident of the same Argarha came and enquired from Ramesh as to whether he was standing with danda in order to give beating to Dina Nath upon which Ramesh got enraged and inflicted an injury on the head of Dinesh Kumar with that danda, that Dinesh snatched danda from the hand of Ramesh who went running to his house and came back having a knife in his hand, that Ramesh proclaimed that Dinesh considered elf of be a supporter of Dina Nath and that he would be killed and saying so Ramesh inflicted a knife blow on the left side of the chest of Dinesh who sat on the ground while Ramesh escaped; that Raju and Pammi removed Dinesh to J.P.N. Hospital in a three-wheeler scooter and he too followed them in an another scooter; that Pammi and Raju left the hospital for giving information to the relations of the deceased and that Dinesh had been killed by
6. Inspector O. P. Tiwari recorded his endorsement on the statement of Ashok Kumar and rukka was sent to the Police Station through S.I. Dharam Pal at 9.45 p.m. PW 20 H.C. Raghbir Singh who was working as Duty Officer at P.S. Kotwali recorded FIR No. 552/83 at 10.05 p.m. copy of which is Ext. PW 20/A and the investigation was entrusted to Inspector O. P. Tiwari.
7. On 4-7-1983 Dr. Vishnu Kumar (PW 10) conducted post-mortem examination on the body of Dinesh Kumar and found the following injuries :
"1. Lacerated wound 5 x .8 cm on the left side of head 7 cm. above left ear and inner back and being 6 cm from midline.
2. Incised punctured wound 2 x 6 cm., oblique on the left side front of chest in 5th intercostal space, inner lower and being 4.2 cm. from midline. Both margins were clean cut, inner lower angle was acute while outer angle was wedge shaped. Inner angle was 117 cm. above left haul. The wound was chest cavity deep and on pressure over chest, blood came out of the injury.
3. Incised wound 1.5 x .3 cm. over the outer part of left elbow.
4. Incised punctured wound .8 x .2 cm. situated in mid axillary line 16 cm. below the apex of armpit over 9th rib, going 1.5 cm. deep into the subcutaneous tissue only." The internal examination revealed as under :-
"On internal examination left side chest cavity contained approximately 2.5 litres of blood Heart showed an oblique cut of 2 cm. on the front surface of right ventricle wall near apex and it was cavity deep. After entering into right ventricular cavity, this injury went upwards through inter ventricular septum to left ventricular cavity after making an oblique cut of 3 cm. just below the medial cusp of mistral valve towards left ventricular cavity. A pin head size small niche was also present at the route of medial cusp of mistral valve. The total depth of this injury in this heart was approximately 7 cm.
Injury No. 2 entered the chest cavity after making cut in the 5th intercostal space and upper border of 6th rib, then made a cut in the pericardium, then entered in the right ventricle of heart, then through the inter ventricular septum to the left ventricle where it finished by making a small niche behind medial cusp of mistral valve. This injury was approximately 9 to 10 cm. deep from skin to finishing point and its direction was slightly left to right upward and backwards."
8. Dr. Bishnu Kumar opined that death in this case was due to shock associated with haemorrhage consequent upon stab injury to heart via injury No. 2. According to him the injuries were ante-mortem and recent and injury No. 1 was caused by some blunt object or surface, while injuries Nos. 2, 3 and 4 were caused by sharp single edged penetrating weapon. Dr. Bishnu Kumar opined that injury No. 2, was sufficient to cause death in the ordinary course of nature vide his correct report Ext. PW 10/A.
9. Ramesh KUMAR was rested on 5-7-1983. Danda produced by Prone was seized by the Investigating Officer after converting it into a sealed parcel. Ramesh Kumar made a disclosure statement upon which a knife was recovered from a well at the pointing out of the accused which was also seized after converting it into a sealed parcel. The exhibits were sent to CFSL from where reports were received. The investigation revealed commission of the offence under S. 302, I.P.C.
10. We have heard Ms. Avnish Ahlawat the learned counsel for the appellant and Shri Sodhi Teja Singh learned counsel for the State.
11. The learned counsel for the appellant has submitted that the prosecution has failed to prove on record the writing of F.I.R. at the time at which it is claimed to have been recorded. She also submitted that there has not been any evidence on the record to prove motive of the appellant forth commission of the offence and the witnesses examined by the prosecution have, in fact, been introduced subsequently. She has also submitted that the material witness Ram Avtar has been withheld by the prosecution without any valid ground and the references have also been planted upon the appellant. The prayer has, therefore, been made for the acquittal of the appellant.
12. The learned counsel for the State has, on the other hand, submitted that the prosecution has proved by cogent, independent and reliable witnesses that the appellant had intentionally inflicted injuries to Dinesh resulting in his death and placed reliance upon the statements of Ashok Kumar (PW 1), Dina Nath ales Bhaiyan (PW 2), Raju (PW 3) and Paramjit alias Pammi (PW 4). He has also submitted that F.I.R. has been recorded at 10.05 p.m. in respect of the incident which took place at 7.45 p.m. and information about this incident was received in the police station at 9.05 p.m. He has also submitted that the prosecution has proved the recovery of danda and knife used by the accused for the inflicting of injury to the deceased and, thus, submitted that the learned trial Court has correctly convicted and sentenced the appellant. A prayer has, therefore, beep made for the dismissal of the appeal.
13. We have given our thoughtful consideration to all these submissions and have carefully gone through the records. We have no hesitation in holding that in the prosecution has not been able to bring home guilt against the appellant beyond a reasonable doubt. The reasons for our conclusion are given hereinafter.
14. The first and the foremost question is about the registration of the case. As already referred to this incident took place at 7.45 p.m. in Argarha within the jurisdiction of P.S. Kotwali. Dinesh was removed to LNJPN Hospital by Raju and Pammi at 8.30 p.m. where he was declared as brought dead. Information in this regard was received in P. S. Kotwali at 9.05 p.m. when D.D. No. 37B, Ext. PW 13/A, was recorded. Inspector O. P. Tiwari (PW 23) has claimed that Cri 3-7-1983 after getting Ext. PW 131/A he along with S.I. Dharam Pal went to J.P.N. Hospital and met Ashok Kumar whose statement Ext. PW 1/A was correctly recorded by him. He has also claimed that he recorded his correct endorsement Ext. PW 13/A and a rukka was sent to P.S. through S.I. Dharam Pal. During cross-examination he has denied that the statement was not recorded by him in the hospital and it was subsequently recorded in the police station. S.I. Dharam Pal (PW 21) has claimed that on 3-7-1983 he along with Inspector O. P. Tiwari reached LNJPN Hospital at about 9.00 p.m. where statement Ext. PW 1/A Ashok Kumar was recorded which along with endorsement Ext. PW 23/A was given to him by the S.H.O. he has claimed having taken the rukka to Duty Officer P.S. Kotwali at 9.30 p.m. who wrote FIR and gave to him a copy of the FIR along with case diary which he took to the Investigating Officer at the spot. During cross-examination he has denied that the statement of Ashok Kumar was not recorded in the hospital or that it was recorded after mid-night in connivance with Dina Nath friend of the deceased. H.C. Ragubir Singh (PW 20) was working as duty officer at P.S. Kotwali and has claimed that on that day at 10.05 p.m. he recorded FIR No. 552 copy Ext. PW 20/A and that special report was sent through a constable at 10.25 p.m. During cross-examination he has admitted that D.D. No. 12A was recorded at 10.05 p.m. about the registration of the case. He did not mention in it the brief fates of the case, name of the assailant and names of the witnesses. He did not mention the name of the constable through whom special report was sent and claimed that no such constable came back till 10.00 a.m. on 4-7-1983. He denied that F.I.R. was written in the morning of 4-7-1983 after due deliberation. Ashok Kumar (PW 1) has also supported the aforesaid witnesses when he claimed that his statement was recorded in the hospital. He has denied that his statement was, in fact, recorded Date at night in the police station or that he had not gone to the hospital. According to S.I. Dharam Pal (PW 21) he reached the spot and found Dina Nath present.
15. Apparently the statements of the aforesaid witnesses indicate that the FIR was recorded at 10.05 p.m. on 3-7-83. However, it is admitted case of the prosecution that Dina Nath (PW 2) remained at the spot and was found there when the police officer reached there. It has clearly been stated by P.W. 2 that police came to the spot about one hour after the incident when Ashok Kumar was present. Ashok Kumar when examined as P.W. 1 has initially claimed that he had not seen the incident and that injured was removed to the hospital by Raju and Pammi. During cross-examination by the Learned Additional Public Prosecutor he claimed having gone to the hospital in a separate scooter.
16. It is, thus, apparent from the aforesaid evidence that the prosecution has not been able to bring on record the name of the constable through whom the special report is claimed to have been sent to the Ilaka Metropolitan Magistrate and other authorities. PW 3 Raju and PW 4 Pammi have nowhere stated that Ashok had also gone to the hospital or that he had even seen the incident.
17. The law is well settled that the duty officer is required to mention the brief facts including the name of the assailant, names of the witnesses and the weapon used in the daily diary entry about the registration of the case. In the instant case all these details are conspicuous by their absence from D.D. entry Ext. PW 20/DA. There is no valid explanation as to why these details have not been mentioned. We have not been able to appreciate as to how the special report was sent without mentioning the name of the constable through whom it was dispatched, and no efforts have at all been made to bring on record the testimony of this constable which could have led corroboration to the testimony of the duty officer and other police officials about the factum of the recording of the FIR at the time at which it is claimed to have been recorded. We may also note that the prosecution has not even brought on record copy of the FIR which was delivered to the Ilaka Metropolitan Magistrate as a special report as the same would have indicated from the endorsement which is requires to be made by the magistrate showing the date and time of its receipt. As already referred to if Ashok Kumar was present at the spot when police came there as claimed by Dina Nath (PW 2) there could hardly be any occasion for the police officer to record his statement in the hospital. Considering all these facts we have no hesitation in coming to the conclusion that the prosecution has not been able to prove on record that the FIR was recorded at th time at which it is claimed to have been recorded.
18. According to the prosecution story the occurrence was witnessed by many persons and in order to prove its case the prosecution has examined Ashok Kumar (PW 1), Dharam Pal (PW 2), Raju (PW 3) and Paramjit alias Pammi (PW 4) as eyewitnesses.
19. Ashok Kumar (PW 1) initially did not support the case of the prosecution and claimed that he had not seen the inflicting of injuries to Dinesh. He had stated that on 3-7-1983 at about 7.30 p.m. after closing his shop he was returning home with cash box and had hardly gone up to 20 paces when he noticed Ram Altar and Dina Nath alias Bhaiyan exchanging hot words who were separated by 4 or 5 persons. He went on to state that he went home and was counting the cash when he heard noise and on coming to the spot near the house of Ram Gopal he found Dinesh lying in an injured condition who was removed at the hospital by his younger brother Raju and one Pammi in a three-wheeler scooter. He claimed having made statement Ext. PW 1/A to the police which he signed at point 'A'. He was allowed to be cross-examined by the learned Additional Public Prosecutor on his request when he claimed having stated to the police that Ramesh s/o Parbhat armed with a danda was standing for the help of Ram Altar, that in the meantime Dinesh who lives in the same street came over there, that Dinesh enquired from Ramesh as to whether he had brought the danda to give beatings to Bhaiyan; that instantly accused Ramesh hit danda on the head of Dinesh, that Dinesh, snatched the danda from Ramesh; that Ramesh then brought one knife from his house and told Dinesh that he was a helper of Bhaiyan and would be killed. These are the facts claimed by the witness to have been deposed to the police but he has no-where stated that these were witnessed by him. He has, however, claimed that Ramesh stabbed on the left part of the chest of Dinesh with the knife and thereafter he ran away. He has during cross-examination admitted that even after the going of Raju and Pammi to the relations of the deceased he did not go to the police station and did not inform the police as to who had seen the occurrence. As we have quoted earlier FIR was recorded or his statement and he has not mentioned the names of the eye-witnesses in his statement to the police.
20. Dina Nath (PW 2) has stated that he owed Rs. 50/- to Ram Altar which he borrowed about 20 days earlier and that on 3-7-1983 at about 7.45 p.m. he had exchanged of hot words with Ram Altar when Ramesh armed with a danda was standing by the side of Ram Avtar. He went on to state that in the meantime Dinesh, Raju and Pammi came and Dinesh inquired from Ramesh if he was standing with a danda to give beatings to him upon which Ramesh gave a danda blow on th head of Dinesh who snatched the danda. He went on to state that Ramesh went to his house and brought a knife with which he stabbed Dinesh on the left side of his chest and ran away. According to him only Raju and Pammi removed the injured to the hospital. He during cross-examination admitted that there was no writing about the loan from Ram Altar and he remained at the spot. He has also claimed having stated to the police about having borrowed Rs. 50/- from Ramesh but was confronted with portion A to A of his statement Ext. PW 2/DA where the amount mentioned was Rs. 25/- only. He has admitted having not asked anybody to give information to the police. According to him Ram Avtar was also arrested in this case along with Ramesh accused. He has claimed having stated to the police that the incident was witnessed by Ashok but was confronted with his statement Ext. PW 2/DA where it was not so recorded. According to him, there was no bleeding from the head of Dinesh and denied that he was making false statement.
21. Raju (PW 3) has also claimed that on 3-7-1983 at about 7.45 p.m. Ram Avtar and Dineshnath alias Bhaiyan exchanged hot words when Ramesh was standing with a danda. According to him Dinesh came arid inquired from Ramesh if he was striding with a danda to give beatings to Dinanath upon which accused retorted and gave a danda blow on the head of Dinesh who snatched it. According to him accused ran to his house and brought knife with which he stabbed Dinesh on the left side of his chest and then ran away. He has also claimed that he and Pammi removed the injured to L.N.J.P.N. Hospital where he was declared dead and he along with Pammi went to give information to the relations of the deceased while Ramu driver stayed in the hospital. During cross-examination he has claimed that he and Pammi stood outside when Dinesh was taken inside and doctor Game out and informed them about the death of Dinesh. He has also claimed the doctor made no enquiries as to how the injured had received the injuries. He has denied having told the doctor that some one had stabbed Dinesh. He has admitted that his statement was recorded by the police next day at 6.00 p.m.
22. Similar has been the statement of Paramjit alias Pammi (PW 4). He has also claimed that Dinesh was removed to the hospital in a scooter; his head was kept in his lap and there was bleeding fix his head but his (Paramjit's) clothes did not get bloodstains, he has admitted that Raju had gone inside to see the doctor while he remained outside with the duty constable. He has denied that he has not seen the occurrence or that he is making a false statement.
23. As already referred to Dinesh injured was got admitted in the casualty of LNJPN Hospital by Raju (PW 3). A perusal of the MLC Ext. PW 17/A shows that the injured was taken with the alleged history of having been stabbed by some one. It is admitted case of the prosecution that Raju accompanied the injured and so there could be no escape from the conclusion that the history must have been given by him to the doctor. The very fact that it was stated to the doctor that some one stabbed Dinesh is a clear indication of the fact that Raju had not witnessed the occurrence and was not aware of the assailant. It has clearly been stated by Paramjit alias Pammi (PW 4) that Raju had gone inside to see the doctor and, thus, it is he who was to give information about the history. If Paramjit had witnessed the occurrence, he would have given the name of the assailant to Raju while taking the injured to the hospital. It has been admitted by the learned counsel for the respondent that the statements of Raju and Paramjit were recorded in the evening of 4-7-1983. Both Raju and Pammi have claimed having gone to give information to the relation of the deceased. PW 5 Santosh Kumar and P.W. 6 Vishwa Bandhu claimed having received information about the death of Dinesh at about 10.00 p.m. on 3-7-1983. If it is so they should have been available for statement that night or during the day time of 4-7-83. No valid explanation is forthcoming for the delay in the recording of their statements, if really they had seen the incident and were available. As regards the claim of Ashok Kumar to be an eye witness PW 3 Raju and PW 4 Paramjit have not stated about him to be an eyewitness. Dina Nath (PW 2) claimed having stated to the police that the incident was witnessed by Ashok Kumar but was confronted with his statement Ext. PW 2/DA where it was not so recorded. It is, thus, an improvement in court made by him.
24. It is well known that man may lie but circumstances do not. According to the testimony of all the eye witnesses one Danda blow and one knife injury was inflicted to Dinesh (deceased) by Ramesh Kumar accused They, however, stand contradicted from the medical evidence of P.W. 10 Dr. Bishnu Kumar who had conducted post-mortem examination on the body of Ramesh on 4-7-1983. According to Dr. Bishnu Kumar there were three incised wounds and one lacerated wound on the body of Ramesh and, thus, the injuries found on the body of the deceased do not find corroboration from the testimony of the eye witnesses. If really they all were eye witnesses as claimed by them there would not have been a mistake by them in giving the details of the injuries. The only possible contusion could be that they may not have seen the actual incident
25. The prosecution has also placed reliance upon the recovery of danda Ext. P1 alleged to have been used by the accused appellant for the inflicting of injuries to Dinesh. Reliance has been placed in this regard on the testimony of PW 21 Dharam Pal and Inspector O. P. Tiwari (PW 23). According to S.I. Dharam Pal (PW 21) on 5-7-1983 he had accompanied Inspector Tiwari along with other staff in search of the accused and the accused was arrested at about 3.00 p.m. in Mandir Mahant, Charkhewalan. He has also claimed that at about 3.45 p.m. they came near fountain when all Puran Singh brought danda and produced the same before the S.H.O. which was seized vide seizure memo Ex. PW 9/B after converting it into a sealed parcel. To the same effect is the statement of Inspector O. P. Tiwari (PW 23). According to the prosecution story Puran was an eye witness of this incident and had produced the danda before the Investigating Officer which according to him was the weapon of offence. Puran was, thus, a very important witness who could have deposed as to how and under what circumstances he came in possession of the danda Ext. P1 and why it was kept by him up to 5th July, 1983 when it was claimed to have been produced before the police. In these circumstances, this evidence about the recovery of danda cannot be considered to be sufficient to hold that the accused had used this danda for inflicting of injury on the, head of the deceased.
26.There recovery of the knife again cannot be sufficient to hold the appellant guilty in view of our earlier discussion about the appreciation of the evidence of the ocular witnesses.
27. We may also note that there has not been any allegation with regard to the motive for the accused appellant for the inflicting of injuries to Dinesh resulting in his death. According to th case of the prosecution a quarrel was going on between Ram Avtar and Dina Nath over the demand of money by Ram Avtar from Dina Nath. Ram Avtar was a material witness but he has not been produced. According to the learned counsel for the State this Ram Avtar was not even examined by the Investigating Officer during the investigation of the case. PW 2 Dina Nath has, however, claimed that Ram Avtar was also arrested in this case with Ramesh accused. The learned counsel for the State has not been able to give any cogent reason for the lapse on the part of the Investigating Officer in not examining Ram Avtar.
28. In view of our aforesaid discussion, the appeal is allowed. Conviction and sentence of the appellant are hereby set aside. Giving him the benefit of doubt Ramesh Kumar appellant is hereby acquitted. He shall be released forthwith, if not required in any other case.
29. Appeal allowed.