Delhi High Court
Kiran Kumar vs State Of Delhi on 22 September, 2010
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed, V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 22.09.2010
+ CRL.A. 321/1997
KIRAN KUMAR ..... Appellant
versus
STATE OF DELHI ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr K.B. Andley, Sr Advocate with Mr M.L. Yadav and Mr M. Shamikh For the Respondent : Mr Sanjay Lao CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may be allowed to see the judgment ? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in Digest ? Yes BADAR DURREZ AHMED, J
1. The present appeal by the appellant Kiran Kumar is directed against the judgment and order on sentence passed by the Additional Sessions Judge on 14.07.1997, whereby the appellant was held guilty under Section 302 IPC for having committed the murder of Mukesh and was sentenced to undergo rigorous imprisonment for life and to pay a sum of ` 500/-, in default whereof, he was required to undergo further rigorous imprisonment for two months.
2. The appellant Kiran Kumar alongwith co-accused Duli Chand @ Kalu were charged for having committed the murder of Mukesh in CRL. A. No.321/97 Page No.1 of 8 furtherance of their common intention. As per the charge, on 02.01.1995 at about 6.45 p.m. at House No.16/606, Gali No.18, Arya Samaj Road, Bapa Nagar within the police station of Prasad Nagar, the appellant Kiran Kumar and co-accused Duli Chand @ Kalu, in furtherance of their common intention, caused the death of Mukesh with a chhuri and committed culpable homicide amounting to murder.
3. The prosecution case is that Mukesh was carrying on a leather cutting business at a rented godown bearing No.16/606, Gali No.18, Arya Samaj Road. PW-6 Prem Chand and Mukesh had become friends. It was alleged that on 01.01.1995, Mukesh told PW-6 Prem Chand that he had an altercation with a person named Kiran and some other associates and that they had threatened to take revenge. Subsequently, on 02.01.1995, at about 6.45 p.m., while PW-6 Prem Chand and Mukesh were sitting in the said godown, Kiran and his friend Kalu came there and started abusing Mukesh. Thereafter, Kiran Kumar is said to have told Kalu that Mukesh is the person who had dismantled their flags on the night of 31.12.1994.
On hearing this, Kalu is said to have exhorted the appellant Kiran Kumar to kill Mukesh and not to spare him as he had insulted him. It is alleged that in the meantime, PW-7 Ram Gopal, who was Mukesh's brother-in- law, also arrived at the scene of occurrence. At that point, Kalu allegedly overpowered Mukesh from behind and on his exhortation, Kiran stabbed Mukesh on the chest. The appellant Kiran is said to have inflicted another injury on the left axilla. It was also alleged that when PW-6 Prem Chand and PW-7 Ram Gopal raised an alarm, Duli Chand @ Kalu struck PW-6 CRL. A. No.321/97 Page No.2 of 8 Prem Chand on his head with an iron rod and thereafter both Kiran Kumar and Duli Chand @ Kalu allegedly ran away. Mukesh was bleeding and it is alleged that PW-6 Prem Chand and PW-7 Ram Gopal took him to Ram Mohan Lohia Hospital in a three wheeler scooter and it is there that he (Mukesh) succumbed to his injuries and died.
4. In an attempt to prove its case, the prosecution examined as many as 19 witnesses. The defence also produced three witnesses. After considering the testimonies of the aforesaid witnesses and the other evidence on record, the trial court acquitted Duli Chand @ Kalu and convicted the appellant Kiran Kumar under Section 302 IPC for having committed the murder of Mukesh. The trial court examined the testimonies of the two alleged eye-witnesses PW-6 Prem Chand and PW-7 Ram Gopal in great detail. Insofar as PW-7 Ram Gopal is concerned, the trial court disbelieved the presence of this witness. The trial court also disbelieved the recovery of the knife and clothes at the instance of Kiran Kumar. The trial court observed that PW-6 Prem Chand, PW-7 Ram Gopal, PW-14 Jagdish and PW-19 Ishwar Singh are the witnesses of arrest and disclosure. PW-6 Prem Chand had stated that the disclosure statement (Exhibit PW-6/C) of the appellant Kiran Kumar was in his own hand. Since this was not the case, the trial court observed that the authenticity of the alleged disclosure statement (Exhibit PW-6/C) was doubtful.
5. The recovery of the knife as well as the clothes was disbelieved by the trial court. The reason for this, as disclosed in the impugned CRL. A. No.321/97 Page No.3 of 8 judgment, is that the recovery of the knife and clothes was alleged to have been made from a parchhatti, but PW-6 Prem Chand and PW-7 Ram Gopal were not able to describe the size of the parchhatti. They also did not know whether the parchhatti had a door or not. Apart from this, PW- 14 Jagdish, had turned hostile and had categorically stated that the blood stained clothes had not been recovered in his presence. Furthermore, with regard to the knife, he had stated that it was produced by the appellant Kiran Kumar in his presence, but the recovery memo (Exhibit PW-6/E) did not bear his signatures. The trial court was also of the opinion, and rightly so, that the prosecution has not been able to link the knife (Exhibit P-1) with the murder inasmuch as the CFSL report (Exhibit PW-19/F) did not confirm that the blood on the knife was of human origin. It is in these circumstances and, rightly so, that the trial court disbelieved the disclosure of the appellant Kiran as well as the consequent recovery of the knife and clothes. In the absence of this evidence, the trial court was left with the alleged ocular evidence of PW-6 Prem Chand and PW-7 Ram Gopal.
6. The trial court entertained serious doubts about the presence of PW-7 Ram Gopal inasmuch as PW-7 Ram Gopal claimed to be present at the time of occurrence as also in the hospital, yet the MLC (Exhibit PW- 18/A) in respect of Mukesh neither mentions the father's name nor the address of Mukesh and in response to both these pieces of information, the word "Unknown" is written. We agree with the reasoning adopted by the trial court that if PW-7 Ram Gopal, who was the brother-in-law of CRL. A. No.321/97 Page No.4 of 8 Mukesh and was, therefore, closely related to him had, in fact, gone with Mukesh to the hospital, he would have definitely given the name of Mukesh's father as well as the address to the person preparing the MLC and, therefore, the word "Unknown" would not have been written thereon against the father's name and address of Mukesh.
7. From a reading of the evidence on record and the reasoning adopted by the trial court, we find that, inter alia, PW-6 Prem Chand has been disbelieved as regards the presence of PW-7 Ram Gopal and also as regards the disclosure made by the appellant Kiran Kumar. PW-6 Prem Chand has also been disbelieved with regard to the recovery of the alleged weapon of offence. Because of this, Mr Andley, the learned senior counsel appearing on behalf of the appellant, submitted that when PW-6 Prem Chand's testimony cannot be believed on these vital issues, the testimony ought to be rejected in toto. In any event, he submits that these circumstances create a serious doubt with regard to the credibility of PW- 6 Prem Chand. Once such a doubt is created, the benefit must go to the appellant.
8. We find that this very aspect had also been considered by the trial court in the impugned judgment. The trial court was conscious of the fact that PW-6 Prem Chand's testimony was not believable in its entirety and, particularly with regard to the presence of PW-7 Ram Gopal and the disclosure of the appellant Kiran Kumar and the consequent recovery of the clothes and the alleged weapon of offence. Yet, as PW-6 Prem Chand's presence at the time and place of occurrence could not be CRL. A. No.321/97 Page No.5 of 8 doubted because PW-6 Prem Chand himself had received injuries and he had also accompanied Mukesh to the hospital. This fact is clear from the MLC (Exhibit PW-18/B, which is in respect of PW-6 Prem Chand. In fact, even DW-1 (Chander Bhan), who claims to be the driver of the three wheeler scooter in which Mukesh was allegedly removed to the hospital, stated that one Prem and one other person also went within him to the hospital. In his cross-examination, DW-1 stated that Prem Chand and the injured were both in the open body attached to the TSR. DW-2 (Rampal Mohanpuria), in his cross-examination, also stated that Prem and one other person had gone with the injured in the TSR.
9. PW-11 (Constable Babu John) also affirmed that Mukesh was brought to hospital by PW-6 Prem Chand. In these circumstances, we agree with the conclusion arrived at by the trial court that the presence of PW-6 (Prem Chand) at the place of occurrence is established as also the fact that PW-6 Prem Chand had accompanied Mukesh to the hospital.
10. PW-6 (Prem Chand), in his testimony, stated categorically that Mukesh was a good friend of his and that on 02.01.1995 at 6.45 p.m., when he and Mukesh were sitting in the latter's godown, the appellant Kiran Kumar and co-accused Kalu arrived there and started abusing Mukesh. Kiran is said to have told Kalu that it is Mukesh who had damaged their flags on 31st and that he had insulted them and, therefore, he is not to be spared. On account of the noise of this quarrel, PW-7 Ram Gopal is alleged to have come there. Of course, the presence of PW-7 has been disbelieved and, therefore, this part of PW-6's testimony, as regards CRL. A. No.321/97 Page No.6 of 8 the presence of Ram Gopal, is to be discarded. However, PW-6 Prem Chand further goes on to state that co-accused Kalu caught the right hand of Mukesh from behind and exhorted Kiran Kumar to kill Mukesh and thereafter Kiran Kumar inflicted the knife injury on the chest of and he gave another injury below the left armpit. He further testified that when he raised an alarm alongwith Ram Gopal, co-accused Kalu hit him on head with an iron rod and then both the assailants ran away. He also stated that he and Ram Gopal took the blood soaked Mukesh to Ram Manohar Lohia Hospital in a three wheeler and that after examination by the doctors, he was subsequently declared dead.
11. We have already indicated above that we are in agreement with the conclusion arrived at by the trial court that PW-7 Ram Gopal's presence at the scene of occurrence is very doubtful and, therefore, to the extent PW-6 Prem Chand's testimony refers to incidents relating to PW-7 Ram Gopal, the same is to be discarded from consideration. This being the case, we have to see what remains. That PW-6 Prem Chand was present at the scene of occurrence cannot be denied and stands established. He is, therefore, an eye witness of the incident. He may have stated that two blows were inflicted by the appellant Kiran Kumar, one on the chest and one under the left armpit, whereas the post mortem indicates a third injury, but this part of his testimony that the appellant Kiran Kumar had assaulted Mukesh with a knife and had given him a blow in the chest and below the left armpit could not be shaken in cross-examination and is also corroborated by the post mortem report (Exhibit PW-13A). The CRL. A. No.321/97 Page No.7 of 8 presence of a third injury, as indicated in the said post mortem report, does not belie PW-6 Prem Chand's statements. In any event, the injury which was sufficient in the ordinary course of events to have caused the death of Mukesh, was injury No.3, which is the wound inflicted in the left axilla (below the left armpit). This injury has clearly been stated to have been inflicted by the appellant Kiran Kumar in the testimony of PW-6 Prem Chand. Thus, separating the "chaff from the grain", the truth remains that PW-6 Prem Chand was an eye witness to the incident and that he had seen the appellant Kiran Kumar inflict the fatal blows on Mukesh as a result of which Mukesh died subsequently in hospital.
12. For the aforesaid circumstances, we see no infirmity in the impugned judgment and consequently we see no reason to disturb the finding of guilt under Section 302 IPC insofar as the appellant Kiran Kumar is concerned in connection with the death of Mukesh. The appeal is dismissed and the conviction and order on sentence are maintained. The appellant, who is on bail, be taken into custody to serve out the remainder of his sentence.
BADAR DURREZ AHMED, J V.K. JAIN, J SEPTEMBER 22, 2010 dutt CRL. A. No.321/97 Page No.8 of 8