Delhi District Court
Sc No. 02/2009 State vs Karan Singh Page No. 1/23 on 22 August, 2012
IN THE COURT OF ADDITIONAL SESSION JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET COURTS: NEW
DELHI
PRESIDED BY : SMT. MADHU JAIN.
IN THE MATTER OF
ID CASE NO. 02403R0026422009
SESSIONS CASE NO. 02/2009
FIR NO. 508/2008
POLICE STATION SANGAM VIHAR
UNDER SECTION : 302/307/323 IPC
STATE
VERSUS
1) KARAN SINGH
S/O SH. MAM CHAND,
R/O H.NO. 70, GALI NO.2, GUPTA COLONY,
SANGAM VIHAR, NEW DELHI.
DATE OF INSTITUTION : 12.12.2008
DATE OF RESERVING ORDER : 18.08.2012
DATE OF DECISION : 22.08.2012
J U D G M E N T
Case of Prosecution:
1. On 14.09.2008 at about 11.18 pm DD No. 62B was received via wireless message at police station Sangam Vihar that a person has been stabbed with a knife at Gupta colony, Gali No.2, Kabristan Wali Gali. After receiving the information, ASI Pritam Singh along with Ct. Meenda Ram reached at the spot where they came to know that injured persons have been taken to AIIMS SC No. 02/2009 State Vs Karan Singh Page No. 1/23 Hospital. After leaving Constable Meenda Ram at spot, ASI Pritam Singh reached at AIIMS Hospital and collected the MLC of the injured persons namely Gulbir Singh and Yudhishter and the deceased Shrawan. Shrawan was declared brought dead by doctors. On MLC of injured Gulbir doctor has opined injuries with alleged history of stab injury and on MLC of Yudhishter doctor opined alleged history of assault. Statement of complainant namely Giriraj Vashisht was recorded by ASI Pritam Singh and case under Section 302/327/323 of IPC was registered against the accused Karan Singh. Further investigation of the case was handed over to Inspector Ram Chander. Crime Team and Photographer were called at the spot. On 15.09.2008 accused Karan Singh was arrested. Exhibits were sent to the FSL, Rohini, New Delhi.
Statement of witnesses were recorded by the Investigating officer and after completion of the investigation, charge sheet under section 302/307/323 of IPC was filed against the accused in the Court.
2. Since the offence under Section 302 of IPC is exclusively triable by the Court of Session, therefore, after supply of documents, the Ld. Metropolitan Magistrate committed the case to the Court of sessions. Charge against the accused:
3. Prima facie case under section 302/307/323 of IPC was made out against accused Karan Singh. Charge under Section 302/307/323 of IPC was framed against the accused by my Ld. Predecessor vide order dated 04.02.2009 to which he pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined twenty nine witnesses in all. The brief summary of the deposition of the prosecution SC No. 02/2009 State Vs Karan Singh Page No. 2/23 witnesses is as under:
Material Witnesses:
5. PW1 is Gulbir Singh, one of the injured/brother of deceased Shrawan. He stated that accused Karan Singh resides in his gali. On 14.09.2008 at about 11 pm while he was sleeping on the roof of his house he heard a noise which was coming from the shop of Rajan. At that time, accused Karan was abusing and reached in front of his house along with other persons namely Subhash, Bablu and Chotu. He saw accused Karan and his associates holding his brother Sharwan Singh. PW1 immediately came down in front of his house and saw that accused Karan had stabbed his brother Shrawan on his chest. He tried to save his brother but other persons namely Subhash caught hold him from behind and Bablu and Chotu stabbed him with knife and he became unconscious.
6. PW2 is Yudhishter, injured/brother of the deceased Shrawan. He stated that on 14.09.2008 he was studying in his house. At around 11 pm he heard a noise of quarrel and he along with his brother Gulbir came down from the roof of the house. He saw Karan, Bablu, Chotu and one other person at the spot. PW2 stated that accused Karan and Bablu were hitting his brother Shrawan. Accused Karan stabbed his brother Shrawan on his chest and hand. Accused Bablu and Chotu caught hold of his brother Gulbir and accused Subhash stabbed his brother Gulbir four times on his body. Someone from the accused persons also hit him on his teeth. His brother Gulbir became unconscious and fell down. He along with his brothers were taken to the hospital and thereafter he gave his statement to the police officials.
7. PW19 is Giri Raj Vashisht who is the complainant of the case. SC No. 02/2009 State Vs Karan Singh Page No. 3/23 He deposed that he is running a milk diary. On 14.09.2008 he was present at his milk dairy. At about 11 pm, he saw that accused Karan was quarreling with Rajan. By that time, Shravan singh also came there and asked the accused not to abuse and leave from there. At this, accused Karan Singh caught hold the collar of Shravan and gave knife blows to him. He along with other public persons tried to rescue Sharvan but he fell down on the ground. By that time, his brother namely Gulbir Singh also came there and accused Karan singh also stabbed him. Accused Karan singh also gave fist blows to Yudhishter, brother of Shravan who also came there and was present there. He stated that he along with public persons tried to apprehend accused Karan singh but he ran away from the spot. Someone called the PCR Van at 100 number and both the injured Shravan and Gulbir were taken to the AIIMS Hospital in the PCR Van where Shravan was declared brought dead by the doctors.
8. PW20 is Nem Singh who stated that he is doing the work of whitewashing. On 14.09.2008 at about 11 pm he along with his wife Shyamvati was present in the gali and were taking /filling water. At that time, accused Karan Singh was abusing at the shop of Rajan tikki wala. He stated that the public persons including his son asked the accused Karan singh not to abuse and leave from there. By that time, Sharavan Singh also came there and also asked the accused not to abuse but the accused started scuffling with Shravan Singh. Accused Karan Singh then took out a knife and stabbed Shravan. PW20 stated that on hearing the noise two brothers of Shravan also came there. Accused Karan singh also attacked them and they also sustained injuries. Accused fled away from the spot. PCR van was called and injured were taken to the AIIMS Hospital.
SC No. 02/2009 State Vs Karan Singh Page No. 4/23
9. PW27 is Inspector Satyapal Singh, initial investigating officer of the case. He arrested the accused, collected earth control, blood stained earth etc. and proved all the memos in this regard.
10. PW28 is ACP Ram Chander, investigating officer of the case. He collected the FSL report, MLC, recorded the statement of witnesses etc. Formal witnesses:
11. PW3 is Jitender Kumar, Sr. Scientific Assistant from FSL, Rohini who examined the exhibits vide Ex.PW3/A.
12. PW4 is Dr. Dhruv Sharma, Sr. Scientific Officer (Biology), from FSL, Rohini who also examined the exhibits vide Ex.PW4/A.
13. PW5 is Parsu Ram Singh, Sr. Scientific Officer ( Physics), from FSL, Rohini who examined the exhibits and proved his report Ex.PW5/A.
14. PW6 is Head Constable Ram Pal, Photographer from Crime Team, South District. He stated that he reached at the spot along with Crime team and took six photographs Ex.PW6/1 to Ex.PW6/6 of the spot from different angles and the same were collected by the investigating officer.
15. PW7 is Constable Anil Kumar who deposed that he collected the sealed pullanda along with sample seal and FSL form from Malkhana and deposited the same in the FSL, Rohini, Delhi.
16. PW8 is Constable Badri Prasad Meena who deposed that he delivered the copies of FIR at the residence of senior police officials and Area Magistrate.
17. PW9 is Head Constable Girish Kumar who deposed that he received the message regarding stabbing of a person vide DD No. 62B and proved the same as Ex.PW9/A. SC No. 02/2009 State Vs Karan Singh Page No. 5/23
18. PW11 is Smt. Gayatri Devi who is running a Kiryana shop ( grocery shop) in the Gali. She deposed that on 14.09.2008 at about 11 pm, accused Karan was abusing Rajan Singh. When she was closing her shop, she heard the noise that Shravan has been stabbed by knife. She made a call at 100 number from her mobile number 9818968026.
19. PW12 is Head Constable Prahlad Kumar who deposed that he remained with the investigating officer during the whole investigation of the case.
20. PW14 is Sub Inspector Prakash Singh who deposed that he recorded formal FIR Ex.PW14/A and registered the same. He handed over the rukka and copy of FIR to Constable Mohan Lal who took the same to the Investigating officer.
21. PW15 is Sh. Rajan Singh who deposed that on 14.09.2008 at about 10.30 pm he was inside his house. Accused Karan Singh was abusing in the gali. He came out of his house and requested accused Karan Singh to go from there. He stated that he does not know anything else about this case.
22. PW16 is Smt. Shyamwati who stated that on 14.09.2008 she was at her house. She came outside her house on hearing a noise and saw that accused Karan singh and Rajan were quarelling. She stated that public persons were asking the accused Karan singh to leave the spot but accused did not hear the public persons. In the meanwhile, Shravan Singh also came there and asked the accused not to abuse. At this, accused Karan Singh scuffled with Sharavan Singh and stabbed him with a knife.
23. PW17 is Sunder Singh, cousin brother of deceased Sharvan. He deposed that he visited the mortuary and identified the dead body of his cousin SC No. 02/2009 State Vs Karan Singh Page No. 6/23 brother/deceased Sharvan Singh vide Ex.PW17/A.
24. PW18 is Vijay Kumar, cousin brother of deceased Sharvan. He deposed that he visited the mortuary and identified the dead body of his cousin brother/deceased Sharvan Singh vide memo Ex.PW18/A.
25. PW21 is Constable M.R. Meena who stated that on the intervening night of 14/15.09.2008 he was on emergency duty with ASI Pritam Singh. On the said night he along with ASI Pritam singh reached at the spot. ASI Pritam Singh lifted the blood with the help of cotton, the Hawai sleeper and also collected the blood stained earth and the earth control and sealed the same vide seizure memos Ex.PW21/A to Ex.PW21/D.
26. PW22 is Lady constable Manish who recorded the information regarding stabbing of a person in the PCR form Ex.PW22/A and certified computerized print out Ex.PW22/B.
27. PW23 is Constable George Kutti who deposed that he handed over the sealed pullandas Ex.PW23/A containing the clothes of deceased Shravan and injured Gulbir singh to the investigating officer.
28. PW24 is Head Constable Mohan Lal who stated that he was with investigating officer during the whole investigation of the case.
29. PW25 is Head Constable Manmohan Krishan who deposed that he along with Constable Suresh went to FSL, Rohini and collected the exhibits and reports and handed over the same to the Investigating officer.
30. PW26 is ASI Pritam singh who lifted the blood with the help of cotton, the Hawai sleeper and also collected the blood stained earth and the earth control and sealed the same vide seizure memos Ex.PW21/A to Ex.PW21/D. SC No. 02/2009 State Vs Karan Singh Page No. 7/23 Medical Witnesses:
31. PW10 is Dr. Shabbir who examined the deceased Sharvan Singh and prepared the MLC report Ex.PW10/A.
32. PW13 is Dr. Arvind Kumar who examined and conducted postmortem of the dead body of deceased Sharavan Singh and gave his postmortem report Ex.PW13/A. He also gave his report on the weapon of offence i.e. knife vide Ex.PW13/D.
33. PW29 is Dr. Akhilesh Raj who proved on record medical examination of injured Gulbir, Yudhishter and Karan singh prepared by Dr. Lokesh vide Ex.PW29/A to Ex.PW29/C. Statement & Defence of accused:
34. Statement of accused under section 313 Cr.P.C was recorded wherein accused denied the case of the prosecution and stated that he is innocent and has been falsely implicated in the present case. Accused further chose not to lead any evidence in his defence.
35. I have heard the Ld. Amicus curiae for accused and Ld. Additional Public Prosecutor for the State and have carefully perused the record.
Arguments of Ld. Counsel for accused:
36. Ld. Counsel for accused argued that relatives of the deceased have taken the names of other persons who stabbed the deceased. They have given the complaint in this regard to the police also. There were other persons who attacked deceased Sharwan but no action has been taken by the police officials on the complaint of the relatives of the deceased. He further argued that Doctor who conducted the Postmortem on the dead body i.e. PW13 has SC No. 02/2009 State Vs Karan Singh Page No. 8/23 clearly stated in his cross examination that knife was not shown to him prior to 06.12.2008. The three scalp hair which were recovered from the palner aspect of right hand were not got matched by him to ascertain as whom the same belonged and the injury no.1 Ex.PW13/A might have been caused by taking the knife in hand with the handle of the knife downwards and the blade causing the injuries upward. He further argued that the witnesses have given different version regarding the source of light at the time of incident. He stated that incident took place in the night wherein no electricity pole was there and therefore the identification of the accused has not been established by the prosecution.
Arguments of Ld. APP for the state:
37. On the other hand, Ld. APP for state argued that from the testimony of the injured and other public witnesses, it is clear that it was accused Karan Singh who stabbed deceased Shrawan. He further argued that may be there were other persons along with accused Karan singh who have been named in their complaint by the relatives of deceased but the role of accused Karan singh has been clearly established and proved by the public witnesses who happened to be the eye witnesses. Testimony of a witness cannot be read in isolation and it has to be read along with the testimony of other witnesses on record. The knife was sent subsequently for opinion of the Doctor and therefore if the doctor opined subsequently on the same, then no adverse presumption can be drawn. The blood stains of the deceased was found on the clothes of the accused for which no explanation has come from the accused Karan Singh. He further argued that accused in his statement under Section 313 Cr.P.C has admitted his presence at the spot and also stated that he was SC No. 02/2009 State Vs Karan Singh Page No. 9/23 under the influence of liquor a fact which has been established by his MLC also. All the witnesses of the prosecution have duly supported the case of the prosecution. They have clearly taken the name of accused Karan singh and have further stated that it was accused Karan singh who stabbed deceased Sharwan who when taken to the hospital, was declared brought dead. Nothing material has come out from the cross examination of the public witnesses which can shatter the case of the prosecution and prosecution has been fully able to prove its case beyond reasonable doubt against the accused.
CONCLUSION:
38. Section 300 IPC defines murder as :
" Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly. If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly. If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly. If the person committing the act knows that is is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as SC No. 02/2009 State Vs Karan Singh Page No. 10/23 aforesaid.
Essential ingredients:
Culpable homicide is murder if the act by which death is caused is done with any of the intentions or knowledge mentioned below:
(a) Intention of causing death.
(b) Intention of causing such bodily injury as the offender knows to be likely to cause the death of person to whom harm is caused.
(c) Intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
(d) Knowledge that the act is imminently dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death, the act having been committed without any excuse for murdering, the risk of causing death or such (bodily) injury as aforesaid.
39. In the case in hand, PW1 is one of the injured as well as the eye witness of the case. He has stated that he knows the accused and also identified the accused in the court. He further stated that accused resides in his gali and his house was 200 meters away from his house. Accused used to do nothing and was the bad element of the society. On 14.09.2008, he was going to sleep on the cot on the roof when he heard the noise of accused which was coming from the shop of Rajan and he reached in front of his house. At that time, accused Karan singh was abusing and Subhash, Bablu and Chotu were also present with him. Accused Karan singh and his other associates caught his brother Sharwan singh. He immediately came down from the roof and came in front of his house. In the meanwhile, Subhash caught him from behind and he SC No. 02/2009 State Vs Karan Singh Page No. 11/23 saw accused Karan singh stabbing his brother Sharvan singh on his chest. He tried to save his brother Sharwan singh but could not do so as he was caught hold by Subhash from behind. After receiving the injury, he became unconscious for a moment but immediately got consciousness. Bablu and Chotu stabbed him 45 times. His brother Shrawan fell down after receiving the injury. After stabbing his brother, accused Karan singh along with Subhash, Bablu and Chhotu ran away from the spot. This incident was also witnessed by public persons namely Sh. Nem singh, Sh. Girraj and Sh. Rajan. Somebody informed the police. PCR Van took him and his brother Shrawan singh to the hospital. His brother Shrawan singh expired on the same day. At the time of quarrel his younger brother Yudhisher also reached at the spot who was also given fist blows by the accused persons. He stated that doctors took his blood stained clothes and that of his brother/deceased Shrawan singh and postmortem was done by the doctors on the dead body of his brother Shrawan singh. Dead body of his brother Sharwan singh was handed over to his family members. He further stated that prior to the incident accused Karan singh used to consume liquor and used to abuse them in the gali. His brother Sharwan singh asked accused Karan singh not to abuse in the gali on which accused Karan singh became furiated. Accused Karan singh stole a gadder from the house of one lady and Sharwan singh scolded him for the same. This witness further identified his clothes and also clothes of his brother/deceased Shrawan. He has been cross examined at length by the Ld. Counsel for accused but nothing material has come out of the cross examination of this witness. Except for the fact that statement of this witness was recorded 1012 days after the date of incident there is nothing on record to shatter the statement of this witness. That there is a time gap of 15 days between incident and recording of statement SC No. 02/2009 State Vs Karan Singh Page No. 12/23 of this witness has been duly explained by the prosecution. Statement of this witness recorded by the police after a long time has been explained by the witness himself as he stated that he took the dead body of his brother Shrawan to his village along with his younger brother and after doing the cremation returned back on 28/29.09.2008. Accused Karan singh is not only seen by PW1 but also by other witnesses who have been examined by the prosecution. There is no reason to disbelieve the testimony of PW1. The defence taken by the accused is that PW1 along with his younger brother Yudhishter has beaten him mercilesly and caused injuries on his head and legs and when he went to lodge the complaint in this regard with the police, he was falsely implicated in the case. Even if for the arguments sake, we believe his defence that Karan singh was beaten by deceased along with PW1 and PW2 Yudhishter but still it is not explained by him as to how Shrawan after giving beatings to him had received injuries. Accused Karan singh had taken the plea that it was deceased Shrawan singh who along with his brother PW1 gave beatings to him. He has further undertaken the defence that a quarrel was going on between some persons and in the defence he also received injuries in that quarrel. In his statement under Section 313 Cr.P.C he has stated that he does not know these persons. If that was so, why so many public persons have taken his name in unison has not been explained by him.
40. PW2 is Yudhishter who has also deposed on the lines of PW1. There is no reason to disbelieve the testimony of this witness also. He is also the witness to the entire incident and nothing material has come out of the cross examination of this witness also. Both PW1 and PW2 have clearly stated that police met them on the night of 15.09.2008 but at that time they did SC No. 02/2009 State Vs Karan Singh Page No. 13/23 not give any statement. The defence taken by accused Karan singh during the cross of PW1 is in contradiction to PW2. To PW1 accused has given the suggestion that it was PW1 along with deceased Shrawan singh who attacked accused Karan singh but to PW2 suggestion has been given that deceased Shrawan singh was attacked by some other unknown persons while he was under the influence of liquor and due to all these injuries he subsequently died. No such suggestion has been given to PW1 that deceased Shrawan singh was attacked by some unknown assailants while he was under the influence of liquor and due to all these injuries he died subsequently. Accused has given suggestion to PW1 that PW1 along with deceased Sharwan singh had attacked the accused with rods and caused injuries on his head and legs and when he went to lodge the complaint he was falsely implicated in this case. Similar, suggestion has been given to PW2 but how the deceased Sharwan singh received injuries has not been explained during cross examination of PW1. Subsequently, during the cross examination of PW2 accused has improved slightly and stated that deceased was attacked by some unknown persons. From the defence taken by the accused himself it was deceased along with his brother PW1, who attacked the accused Karan singh, the presence of accused Karan singh at the spot is clearly established.
41. PW11 is Smt. Gayatri Devi who stated that on 14.09.2008 accused Karan singh was abusing Sh. Rajan singh. While she was closing her shop, she heard the noise that Shrawan singh has been stabbed by knife. She made a call at number 100 from her mobile phone number 9818968026. PW11 though in her examination in chief stated that she does not remember exactly amongst them who was accused Karan singh but subsequently she has SC No. 02/2009 State Vs Karan Singh Page No. 14/23 identified the accused in the court and has stated that he was the same person who was abusing Rajan. Nothing material has come out from the cross examination of this witness also who made a phone call at 100 number and further stated that STD booth was installed at her shop. She has also stated that her statement was recorded by the police and there is no reason to disbelieve her testimony. Even during her cross examination to a question on quarrel, she answered in affirmative that she witnessed the quarrel.
42. PW15 is Sh. Rajan Singh. This witness though has not fully supported the case of the prosecution but he has admitted this fact that accused Karan singh was abusing in the gali. It is a well settled principle of law that not the whole testimony of hostile witness can be effaced altogether and that much of his testimony wherein he or she has supported the case of the prosecution can be taken into consideration.
43. It has been held in Crl. A. 589/2010 and Crl. A. 822/2010, Vijay Kumar @ Vijay and Others Vs State 2011 VIII AD (Delhi) 610 that: "18. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. ( Vide:
Bhagwan Singh Vs The state of Haryana, AIR 1976 SC 202; Rabindra Kumar Dey Vs State of Orissa, SC No. 02/2009 State Vs Karan Singh Page No. 15/23 AIR 1977 SC 170; Syad Akbar Vs State of Karnataka, AIR 1979 SC 1848; and Khujji @ Surendra Tiwari Vs State of Madhya Pradesh, AIR 1991 SC 1853."
Similarly, in State of U.P. Vs Ramesh Prasad Misra & Anr., AIR 1996 SC 2766, Hon'ble Apex Court observed as under "this court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reitertated by this court in Balu Sonba Shinde Vs State of Maharashtra, (200) 7 SCC 543; Gagan Kanojia & Anr. Vs State of Punjab, (2006) 213 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. Vs State of UP., AIR 2006 SC 951 ;
Sarvesh Narain Shukla Vs Daroga Singh & Ors., AIR 2008 SC 320; and Subbu Singh Vs State by Public Prosecutor, (2009) 6 SCC462. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant party thereof which are admissible in law, can be used by the prosecution or the defence."
This witness has not deposed anything about the incident or the SC No. 02/2009 State Vs Karan Singh Page No. 16/23 fact that who stabbed Sharwan singh but has admitted the fact on that day at the time of incident accused Karan singh was present at the spot and was abusing in the gali.
44. PW16 is Smt. Shyamwati who stated that on 14.09.2008 she was filling water in the pots and after hearing the noise she sent outside and saw public persons standing there. Accused Karan singh was abusing Rajan and public persons were asking him to leave. Deceased Sharwan singh also came there and accused Karan singh had a scuffle with Sharwan singh. Accused Karan singh stabbed Sharwan singh with knife. Subsequently, regarding other injured this witness initially did not support the case of the prosecution but during her cross examination she has fully supported the case of the prosecution. Nothing material has come out of the cross examination of this witness except for the fact that she is accused in number of excise cases from police station Sangam vihar. Merely for the reason that PW16 is accused in many excise cases is no ground to throw away her testimony and to disbelieve the testimony of this witness.
45. PW19 is Sh. Giriraj Vashisht who has duly supported the case of the prosecution and he is also one of the eye witness of the case. Nothing material has come out from the cross examination of this witness except for the fact that whether there was an electricity pole at the spot or not. PW20 is Sh. Nem Singh who is also an eye witness of the case. In his cross examination this witness has stated that there was no light but merely because this witness has stated there was no light is no ground to disbelieve the testimony of this witness or to throw away the case of the prosecution on presumption that he did not identify the accused at spot. PW20 has stated that accused was abusing SC No. 02/2009 State Vs Karan Singh Page No. 17/23 when he reached at the spot. He took the accused to his house but he again came out. This version has been given by the PW20 in his cross examination which shows that PW20 has definitely seen the accused at the time of incident. There is no reasons to disbelieve the testimony of this witness and also not only PW20 but other eye witness of the case have also fully supported the case of the prosecution. Counsel for the accused argued that how it would be ascertained that whether it was a full moon light or not and whether witness was able to see the accused. PW20 himself has stated in his cross examination that he took accused to his house but he again came out of his house. It shows that PW20 not only saw the accused but also knew about his house and there is no reason to disbelieve his testimony. All the public witnesses examined by the prosecution in the present case are also the eye witness of the case. All of them have duly supported the case of the prosecution and have taken the name of accused Karan singh who stabbed deceased Sharwan. There is no reason to disbelieve their testimony. Accused has not shown any prior enmity with the public witnesses who deposed against him. Neither at the time of defence of the accused nor during the arguments or in his statement under Section 313 Cr.P.C accused has taken the plea that he had prior enmity with the public witnesses due to which he was falsely implicated in the case. Rather in his statement under Section 313 Cr.P.C accused has taken the plea that he does not know any of these public persons/witnesses. Furthermore, he himself has admitted his presence at the spot in his statement under Section 313 Cr.P.C as he has stated that he was under the influence of liquor at that time and coming from Peepal chowk and already a quarrel was taking place between some persons whose name he does not know. In his statement accused has further SC No. 02/2009 State Vs Karan Singh Page No. 18/23 stated that he received injuries on his head which shows that he was present at the spot at the time of quarrel. In his statement under Section 313 Cr.P.C he gave an answer to question number 7 that he was under the influence of liquor and he does not know anybody. He has also admitted in reply to question number 3 that he was under the influence of liquor at that time and already a quarrel was taking place between some persons whose name he does not know. His answers to these questions shows his presence at the spot. Regarding the fact that he did not know any of the persons who were quarreling he himself has given suggestion to PW1 and PW2 that deceased Sharwan along with PW1 gave beatings to him which is in complete summer sault to the plea taken by him in his statement under Section 313 of Cr.P.C that he did not know any of the persons who were quarreling at the spot.
46. PW10 is Dr. Shabbir who examined patient Sharwan singh in the casualty and stated that patient was declared brought dead to Trauma Center at 11:43 pm on 14.09.2008 and there was a stab injury to left precordium in unresponsive condition. He also deposed that besides this stab injury to left precordium, there was no other injury found on the body of the deceased/patient Sharwan singh. PW13 is Dr. Arvind Kumar who conducted postmortem on the dead body of deceased Sharwan singh and proved the postmortem report Ex.PW13/A. On examination he stated that following antemortem injuries were found on the body of deceased:
(i) Stab wound of size 3x1.6 cm present just medial to left nipple, about 14 cm deep which 5cm left lateral to midline and 21 cm below left shoulder. Tract directed rightward, backward and upward going through intercostal space number found, cutting the intercostal muscles, pericardium and origin of pulmonary trunk (1.5 cm long). Pericardium filled with blood SC No. 02/2009 State Vs Karan Singh Page No. 19/23 about 500 mm, partially clotted.
(ii) Superficial abrasion of size 2x0.4 cm, ovr left supra clavicular fossa, reddish brown in color.
(iii) Superficial abrasion 2x0.5cm, obliquely present over right arm, frontal aspect, 11cm below right shoulder.
PW13 further deposed that cause of death was due to haemorrhagic shock, consequent to stab injury number 1, caused by sharp edged weapon and is sufficient to cause death in ordinary course of nature itself. Ld. counsel for accused argued that PW10 has stated that only one stab injury was found on the dead body of deceased Sharwan singh whereas PW13 has given description of other injuries also. So far as these other injuries are concerned, these are only abrasion marks and could not be termed as proper injury marks on the dead body of the deceased. Therefore, there is no contradiction in the testimony of PW10 and PW13 in this regard. PW13 as per his subsequent opinion report has further stated that injuries number 1 and 4 on the dead body of deceased Sharwan singh could be possible with the weapon i.e. Knife and the injury no.3 could be possible with a stone. PW13 has also given his report regarding the injury on the person/injured Gulbir singh and stated that all the incised wounds on the dead body of Gulbir singh are possible from the single weapon. This witness has further identified the knife on which he has given the opinion. Ld. counsel for accused argued that knife Ex.PX was not shown to the witness prior to 06.12.2008. Ld. APP for the state argued that knife was subsequently sent to the doctors for opinion after being recovered from FSL which has been duly proved by PW13 and further clarification regarding injury and murder weapon was sought by Investigating officer. Submission of Ld. APP for state bears force. If three scalp hair which SC No. 02/2009 State Vs Karan Singh Page No. 20/23 were recovered from the palner aspect of right hand of deceased were not got matched by the witness /PW13, it does not lead to any adverse conclusion.
47. PW22 is Lady Constable Manish who stated that she received a call from the mobile phone number 9818968026 upon which she filled up the PCR form regarding the stabbing of a person and the information was reduced into Ex.PW22/B. That in the PCR form Ex.PW22/B names of both the injured persons as well as of the accused have been mentioned. Testimony of PW22 corroborates the testimony of PW11 who stated that she informed 100 number from her mobile number 9818968026. This fact further fortifies the case of the prosecution regarding the presence of the accused on the spot as well as regarding the fact that both Gulbir singh and Sharwan singh were stabbed at the spot. PCR is the first forum where the call was received by the police officials and in that first call itself not only the name of the injured but also the accused has been mentioned.
48. PW26 ASI Pritam Singh has deposed that he reached at the spot after the receipt of DD No. 26B Ex.PW9/A. Subsequently, he went to hospital where accused Karan singh was also hospitalized and subsequently he was interrogated and arrested. Accused Karan Singh made a disclosure statement Ex.PW12/C. In pursuance of his disclosure statement, accused Karan singh led police officials to his room where from the right side corner of the roof inside the room, the accused got recovered one blood stained knife wrapped in a polythene which was seized by the Investigating officer vide Ex.PW12/G. It is a well settled principle of law that the disclosure statement by accused made to the police is not admissible in evidence except where in consequence of that disclosure statement, recovery of some fact or things has been made by the SC No. 02/2009 State Vs Karan Singh Page No. 21/23 police. In the present case this fact was only in the knowledge of accused Karan singh where the knife was hidden by him. Knife has been recovered from the room of the accused. It is a private room and not a public place where only accused or his family members had access. Thus, recovery of the knife at the instance of accused Karan singh gives rise to the presumption in favour of prosecution that it was accused only who hid the knife there which accused has failed to rebut. Investigating officer also seized the clothes of the accused which he was wearing at the time of the incident. As per FSL result Ex.PW4/A blood has been detected on the knife and also on the clothes of the accused Karan singh i.e. 5A Jeans pant, 5B Shirt and 5C Handkerchief. Though, on the pant as well as on the handkerchief the blood group was inconclusive as per Ex.PW4/B. That the blood group detected on shirt of accused was of group 'A' which is also of the deceased as on the deceased pant i.e. Ex.7A blood group 'A' has been detected as per Ex.PW4/B. The finding of blood stains having same blood group on the shirt of the accused to that of the deceased clothes also corroborates version of public witnesses that it was accused who stabbed the deceased Sharwan singh. Though, the finding regarding the blood group is not conclusive vide Ex.PW4/B but as per Ex.PW4/B blood group which has been found on the knife or on the other clothes of the deceased was of human origin.
49. The clothes of the injured Gulbir singh was also sent for FSL examination but on those clothes blood group 'O' has been detected and not group 'A'. It is only on the clothes of deceased as well as of accused that the blood group 'A' has been detected which gives rise to two conclusion that either the accused had 'A' group or deceased had 'A' group and the detection of blood stain of the same group on clothes of accused and deceased gives rise to SC No. 02/2009 State Vs Karan Singh Page No. 22/23 presumption against the accused and further corroborates version of the prosecution that it was the accused who stabbed deceased.
50. PW5 Sh. Parsu Ram Singh has also given the opinion regarding cut marks on the clothes of the deceased and opined that cut marks could have been caused by sharp edge weapon and possibility of use of knife Ex.4 cannot be ruled out. Thus, FSL report as well as subsequent opinion given by the doctors regarding the knife also corroborates the version of the public witnesses that it was accused Karan singh who stabbed the deceased with a knife. PW1 Gulbir singh though, has stated that accused Karan singh stabbed his brother but for his own injury he has not stated that it was accused Karan singh who stabbed him or accused injured him. Neither PW1 has talked about any injuries given by accused to him or to PW2. Similarly, PW2 has not stated that accused also caused injury to his brother PW1 or to him. Therefore, so far as section 307/323 of IPC are concerned prosecution has failed to prove its case against the accused Karan singh. Prosecution however, has been fully able to establish its case under Section 302 of IPC against accused Karan singh.
51. In view of the above said discussion, accused Karan Singh is held guilty and convicted for the offence under Section 302 of IPC. He is however, acquitted of the offence under Section 307/323 of IPC.
ANNOUNCED IN THE OPEN COURT
ON 22.08.2012 (MADHU JAIN)
DESIGNATED JUDGE
TADA/POTA/MCOCA
ASJ SE01/NEW DELHI/22.08.2012
SC No. 02/2009 State Vs Karan Singh Page No. 23/23