Judgment reserved on : October 26, 2009 Judgment delivered on : October 30, 2009

* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on : October 26, 2009 Judgment delivered on : October 30, 2009 + CRIMINAL APPEAL NO.68/1996 DAYA RAM & ANR. THE STATE Versus Through: Through:... Appellants Mr.K.B. Andley, Sr. Advocate with Mr.Y.N. Singh, Advocate.... Respondent Mr. Pawan Sharma, APP CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in Digest? AJIT BHARIHOKE, J. 1. Daya Ram and Suresh Chand having been convicted in terms of impugned judgment dated 20.3.1996 in Sessions Case No.9/92, FIR No.312/91, P.S. Okhla Industrial Area under Section 302 IPC read with Section 34 IPC for having committed murder of one Mahesh and under Section 307 IPC read with Section 34 IPC for attempting to commit Crl.A.No.68/1996 Page 1 of 18

murder of PW2 Parmod Kumar and sentenced in terms of a separate order on sentence dated 20.3.1996 on both counts, have preferred the instant appeal challenging the impugned judgment and consequent order on sentence. 2. Briefly stated, the case of the prosecution is that on the night intervening 11-12 th October 1991 at about 2:10 a.m., lady Constable Janesh from Police Control Room informed the Duty Officer, Police Station Okhla Industrial Area that a person had been stabbed with a knife in House No.445, Gali No.15, Tughlakabad Ext., New Delhi which was recorded as DD No.66-B (Ex.PW12/B). The Duty Officer conveyed the said information to S.I. Chinta Singh, who was on night patrol duty on wireless and also sent a police vehicle to Inspector Raghbir Singh for taking him to the spot of occurrence. S.I. Chinta Singh along with the other staff reached at the spot. Inspector Raghbir Singh PW24 also reached at the spot where he found that the injured persons had already been removed to the hospital by a PCR van. Inspector Raghbir Singh left S.I. Chinta Singh at the spot and went to AIIMS along with ASI Mahender Singh and other police staff. He obtained the MLC of the deceased Mahesh and injured Parmod Kumar. Mahesh was declared brought dead on his MLC and Parmod Kumar, injured was declared fit for making statement. The Investigating Officer recorded the statement of the injured Parmod Kumar Ex.PW2/A and sent it to the police station after endorsing it for the registration of FIR. On the basis Crl.A.No.68/1996 Page 2 of 18

of said statement, formal FIR No.312/91 was recorded at the police station. 3. PW2 Parmod Kumar in his statement EX.PW2/A stated that his brother Munesh was resident of House no.445, Gali No.15, Tughlakabad Extension and his friend Rajender was also living with him in the aforesaid house with his family. He further stated that on the fateful night when he returned back from duty, his brother Mahesh (deceased) told him that neighbours of their brother Munesh had fought with him. On this, he along with deceased Mahesh proceeded to the house of Munesh at Tughlakabad to find out about his welfare. On reaching there, they found that Munesh and his friend Rajender were not at home. So they inquired about the quarrel from the wives of Munesh and Rajender. In the meanwhile, at about 2.00 a.m. in the night, the neighbours of Munesh, Daya Ram and his brother Suresh came inside the house. Daya Ram was carrying a knife in his hand. On entering the house, Suresh caught hold of the deceased Mahesh and exhorted Daya Ram by uttering the words Aaj Is Jhagrae Ko Khatam Hi Kar Detein Hain, Maar Sale Ko Chaku. Reacting to the exhortation, appellant Daya Ram stabbed Mahesh with a knife and when he(parmod) tried to catch hold of Daya Ram, Suresh let go of Mahesh and apprehended him and appellant Daya Ram stabbed him in his back. When his sister-in-law Guddo and wife of Rajender raised alarm, both the appellants ran away. Police reached after some time and took them to the hospital. Crl.A.No.68/1996 Page 3 of 18

4. The Investigating Officer prepared rough site plan and he got the scene of crime photographed. He arranged for sending of dead body for post mortem examination. Both the accused were arrested and on interrogation, they made disclosure statements. Accused Daya Ram, pursuant to the disclosure statement got the weapon of offence i.e. Knife Ex.P1 recovered from the house of his brother Mahender Singh. Investigation revealed that prior to the occurrence in question an altercation between Munesh, brother of the injured Parmod Kumar and Mahender Singh, brother of the appellants had taken place in which Mahender Singh had sustained injuries and he was medically examined at AIIMS. 5. Learned Additional Sessions Judge framed charges under Sections 302 read with Section 34 IPC and 307 IPC read with Section 34 IPC against both the appellants to which they pleaded not guilty and claimed to be tried. 6. In order to bring home the guilt of the appellants, prosecution examined 24 witnesses. The case of the prosecution, however is mainly based upon the eye-witness account of the occurrence narrated by PW1 Savitri Devi, wife of Rajender, injured PW2 Parmod Kumar and PW4 Sushma @ Guddo, wife of Munesh. PW8 Munesh, brother of the deceased deposed that earlier in the day he had an altercation with Mahender, brother of the appellants. PW15, Head Constable Babu Din had taken Mahender Singh who met him in injured condition, to AIIMS Crl.A.No.68/1996 Page 4 of 18

on 11.10.1991. He also proved MLC Ex.PW19/A. PW23 S.I. Chinta Singh and PW24 Inspector Raghbir Singh are the police officers who conducted investigation in this case. Appellants were examined under Section 313 Cr.P.C. and their statements were recorded where they took a defence of complete denial of having played any role in the occurrence. According to them, they have been falsely implicated by the complainant party because of their enmity with their real brother Mahender Singh. 7. The learned Additional Sessions Judge relying upon the testimony of the eye-witnesses and the evidence of recovery of knife Ex.P1 at the instance of the appellant Daya Ram, which as per CFSL report Ex.PW24/F had stains of human blood group A which match with the blood group of the deceased Mahesh. Relying upon this, he found both the appellants guilty of the charge under Section 302 IPC read with Section 34 IPC as also charge under Section 307 read with Section 34 IPC. 8. Learned Senior Counsel for the appellants has submitted that the learned Additional Sessions Judge has grossly erred in the appreciation of evidence. He has argued that the prosecution case is based mainly on the eye witness account given by PW1 Savitri Devi, PW2 Parmod Kumar and PW4 Sushma @ Guddo. He has submitted that none of the aforesaid witnesses is reliable and their testimony do not inspire confidence. Crl.A.No.68/1996 Page 5 of 18

9. Regarding PW1, Savitri Devi, he has submitted that she is not a reliable witness, firstly because she could not tell how many stab blows were given by the appellant Daya Ram and in her examination-in-chief, she could not identify the weapon of offence Ex.P-1 and instead she categorically stated that it was not the knife which was used for stabbing. He has further submitted that besides the above infirmities, she has made improvements upon her earlier statement Ex.PW1/DA made to the Police under Section 161 Cr.P.C. during investigation. 10. The case of the prosecution is that the occurrence took place in the wee hours of the night at around 2:00 AM in House No.445, Gali No.15, Tuglakabad Extension, New Delhi. As per the testimony of PW2 Parmod Kumar, his brother Munesh used to reside in the said house along with his friend Rajender Singh and his family. PW1 Savitri Devi is the wife of Rajender Singh, therefore, her presence at the house in wee hours of the night cannot be doubted. Merely because she could not identify the knife Ex.P-1 which was used in an occurrence which may not have taken more than few minutes, the credibility of her version cannot be doubted. So far as the improvements over the previous statement made to the Police is concerned, those are not in respect of the material aspects of the case. Therefore, in our considered view, much importance cannot be given to those inconsequential improvements which resulted in confronting of the witness with her statement Ex.PW1/DA. Another challenge to the testimony of PW1 Savitri Devi is that she could not tell how many stab wounds were Crl.A.No.68/1996 Page 6 of 18

given by the appellant in a split of second action in which two persons were stabbed. It is not expected of a witness to keep an account of the stab wounds. Therefore, this infirmity also, in our view, is inconsequential. 11. Regarding PW4 Sushma @ Guddo W/o Munesh Kumar also, the stand of the appellant is that her testimony is not reliable because of several reasons. Firstly, she has made improvements, in her testimony in the court, over her earlier statement Ex.PW4/DA recorded by the Police under Section 161 Cr.P.C. Secondly, as per the prosecution, though the site plan was prepared at her instance, she was not in a position to explain the site plan during her cross-examination. Thirdly, she was not in a position to tell who called the Police to the spot. Fourthly, she did not fully support the case of prosecution in her examination-in-chief and she had to be cross-examined by the learned A.P.P. 12. From the record, it is obvious that PW4 Sushma @ Guddo was examined after a lapse of almost one year from the date of occurrence. Therefore, it is not unnatural that she had forgotten some facts for which the APP had to seek permission to cross-examine her with a view to set the record straight. So far as the improvements made in the statement in the court viz-a-viz the earlier statement is concerned, we find that the improvements are not so material to suspect the correctness of her version and those can be attributed to lapse of Crl.A.No.68/1996 Page 7 of 18

memory. The argument regarding the witness not being able to read and explain the site plan, to our mind, is misconceived because the site plan admittedly was prepared by the Police on the pointing out by the witness. This, however, does not mean that a witness who is not equipped to read and understand a site plan cannot point out the specific places or locations of appellant or victim etc. Thus, we find no reason to doubt the credibility of PW4 Sushma @ Guddo, whose presence at the spot in the wee hours of night in her house is natural. 13. Coming to Parmod Kumar, PW2. It is argued that he is not a reliable witness so far as identity of the appellant is concerned because he admittedly did not tell the Doctor, who prepared the MLC, the name of the assailants. This lapse, to our mind, is inconsequential because while preparing the MLC the Doctor is not supposed to seek all the facts from the patient, but his main concern is to attend to the injury of the patient and save his life. Otherwise also, the witness has explained that he did not name the assailants because the examining Doctor did not ask for the same. 14. Next challenge to the testimony of Parmod Kumar, PW2 is that his testimony is inconsistent with the medical evidence. The learned Senior Counsel for the appellants in support of the contention has drawn our attention to the testimony of PW2, Parmod Kumar who stated that two or three knife blows were given by the appellants to his Crl.A.No.68/1996 Page 8 of 18

brother Mahesh, whereas according to the MLC of Mahesh Ex.PW19/C, he suffered only one stab injury. 15. The inconsistency pointed out by the learned Senior Counsel for the appellants is not that material so as to discard the testimony of PW2, Parmod Kumar, who also sustained injuries in the incident. Otherwise also, it has come in evidence that the occurrence took place suddenly. Therefore, the witness was not expected to keep count all the blows given to his brother Mahesh. Further PW1 Savitri Devi and PW4 Sushma @ Guddo have also supported the version of PW2 Parmod Kumar regarding stabbing of Mahesh by the appellants. 16. Learned Senior Counsel for the appellants has also submitted that as per cross-examination of PW2 Parmod Kumar, he has admitted that there was no quarrel between them and the appellants at the time of the incident and that they did not say anything at the time of the incident. This submission of the learned Senior Counsel for the appellants is misconceived and against the facts. He has tried to pick up one sentence from the cross-examination and quote it out of context. The witness actually stated that we had no quarrel with the accused persons. The quarrel was with their brother Mahender Singh because of flow of water to our house. No altercation or any quarrel took place at the time of incident. If aforesaid version is read as a whole, it means that the witness initially was referring to the earlier quarrel between his brother Mahesh when he stated that he had no Crl.A.No.68/1996 Page 9 of 18

quarrel with the accused persons and in the latter part of his version when he stated that no altercation or any quarrel took place at the time of incident, he meant that neither he nor Mahesh fought with the appellants, which fact is clarified from the further statement of the witness to the effect that the accused persons rushed inside and caused the injuries all of a sudden. Thus, in our considered view, learned Senior Counsel for the appellants has failed to point out any reason to disbelieve the testimony of PW2 Parmod Kumar. 17. From the evidence on record, it is obvious that PW2 Parmod Kumar also suffered stab injuries in the incident. Therefore, his presence at the spot cannot be doubted. He is categoric in his assertion that Mahesh was caught by appellant Suresh Chand and was stabbed by Daya Ram and when he tried to intervene, Suresh Chand left Mahesh (deceased) and caught him from his arm and Daya Ram appellant stabbed him in his back. His aforesaid version finds corroboration from the testimony of PW1 Savitri Devi and PW4 Sushma @ Guddo, whose presence at the time of occurrence also cannot be doubted. As per the evidence, both of them were residing in the house in which the stabbing took place. Therefore, their presence in the house at wee hours of the night i.e. 2:00 AM is natural. Further, it is highly improbable that PW2 Parmod Kumar in his anxiety to settle some score with the appellants would falsely implicate them and let the assailants, who killed his brother and also stabbed him go scot free. Thus, under the circumstances, we are of the view that the learned Crl.A.No.68/1996 Page 10 of 18

Trial Court has rightly relied upon the testimony of PW1, Savitri Devi, PW2 Parmod Kumar and PW4 Sushma @ Guddo to hold the appellants guilty of the charges. 18. The second submission of learned Senior Counsel for the appellants is that genesis of the occurrence which resulted in the death of Mahesh and injury to PW2 Parmod Kumar lies in the earlier incident of a quarrel between Munesh Kumar, brother of the deceased and Mahender, brother of the appellants. Despite of that the prosecution has failed to examine Mahender as a witness, nor has he been impleaded as an accused. This circumstance, according to the learned Senior Counsel for the appellants, leaves a gap in the prosecution case and makes the prosecution story doubtful. 19. We are not convinced with the above submission. Admittedly, Mahender who had an altercation with the brother of the deceased Mahesh is the brother of the appellants. Therefore, there was no purpose in prosecution citing him as their own witness because under the natural course of circumstances, he was expected to support the case of the appellants. The argument as to why he has not been made an accused with the appellants is also without any merit because unless the investigation revealed the role of Mahender in the occurrence, he could not have been cited as an accused. Thus, only because his brothers took upon themselves to take revenge from the Crl.A.No.68/1996 Page 11 of 18

family members of the complainants, under law he could not have been cited as a co-accused. 20. It is further submitted on behalf of the appellant that prosecution has failed to prove the MLC s either of PW2 Parmod Kumar or the deceased Mahesh. This has deprived the appellants of crossexamining the Doctor concerned and questioning him about the nature of injuries and whether or not those injuries could be caused by the knife Ex.P-1, which has resulted in a serious prejudice to the defence. Therefore, the appellants are entitled to the benefit of doubt. 21. On perusal of record, we find that MLC of PW2 Parmod Kumar Ex.PW19/B and MLC of the deceased Mahesh Ex.PW19/C have been proved on record by examining Kirti Uniyal, Record Clerk, AIIMS-PW19. As per his statement, these MLCs are in the hand writing of Dr. Sanjay Sood who had declared Mahesh as brought dead and had also declared PW2 Parmod Kumar to be fit for statement. Dr. Sanjay Sood has not been examined to prove the above medico-legal reports. In our considered view, though it may have been ideal if Dr. Sanjay Sood was examined to proved the MLCs, yet his non-examination is not of much significance because so far as PW2 Parmod Kumar is concerned, as per the MLC.Ex.PW19/B, the nature of injury suffered by him is opined as simple. Thus, non-examination of Dr. Sanjay Sood has not caused any prejudice to the appellants. Had this been a case of grievous injury or dangerous injury then, of course, the appellants could have a reason to Crl.A.No.68/1996 Page 12 of 18

be aggrieved with the non-production of Doctor concerned which has deprived them to cross-examine him and seek clarification about the nature of injuries. So far as the deceased Mahesh is concerned, his dead body was sent for post mortem examination and the post mortem report is proved on record by PW20 Dr. Rajesh Kumar as Ex.PW20/A. Dr. Rajesh Kumar was also shown the knife Ex.P-1 and he opined that the injury found on the person of deceased could be possible with that knife. He has also given his opinion regarding cause of death. Since the Doctor who conducted the post mortem has been examined to prove the injuries on the persons of the deceased, cause of death and the fact whether or not the injury caused was sufficient to cause death, we find that no prejudice has been caused to the appellant due to nonexamination of the Doctor who prepared the MLC of the deceased. 22. We find from the testimony of the Investigating Officer that knife Ex.P-1 (weapon of offence) was sent for serological examination and as per the report of serological examination Ex.PW24/F, blood stained were found on the knife and even the blood of human group A was found on the knife which matched with the blood group of the deceased which was also A. This also corroborates the testimony of eye witnesses PW1 Savitri Devi, PW2 Parmod Kumar and PW4 Sushma @ Guddo, which appears to be natural and truthful. Thus, we have no hesitation in concluding that the learned trial Judge has rightly convicted the appellants on both the counts. Crl.A.No.68/1996 Page 13 of 18

23. Learned Senior Counsel for the appellants has further submitted that even if the prosecution case is taken to be true, then also the purported act of the appellants do not constitute the offence of culpable homicide amounting to murder punishable under Section 302 IPC because in the given factual matrix of the case, the intention to cause death of the deceased is lacking. He has pointed out that as per the case of prosecution, admittedly only one stab blow was given to the deceased Mahesh, which is indicative of absence of intention to commit murder. Thus, he has urged us to convert the conviction under Section 302 IPC into the conviction for culpable homicide not amounting to murder punishable under Section 304 Part II IPC. In support of this contention, he has placed reliance upon the case of Surendra Singh @ Bittu Vs. State of Uttaranchal, 2006 (1) CAR (SC) 429. 24. In order to appreciate the submission of learned Senior Counsel for the appellants, it is necessary to have a look at Section 300 IPC, which is reproduced thus: Section 300. Murder-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 it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is Crl.A.No.68/1996 Page 14 of 18

likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. ----- ----- Exception I-When culpable homicide is not murder-culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. ----- ----- Exception 2-Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. ------ ------ Exception 3-Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting or the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. ------ ------ Exception 5-Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. ------- ------- 25. A plain reading of the above provision shows that a culpable homicide is murder if the wrongful act of the accused falls within either Crl.A.No.68/1996 Page 15 of 18

of four clauses of Section 300 IPC unless the case is covered under any one of the five Exceptions. 26. On careful reading of eye witness account given by PW1 Savitri Devi, PW2 Parmod Kumar, injured and PW4 Sushma @ Guddo, we find that it is proved on record that the appellants had trespassed in the house of Munesh, brother of the deceased, in the late hours of night at 2:00 AM. Appellant Daya Ram at that time was holding a knife in his hand. On entering the house, appellant Suresh caught hold of the deceased and exhorted appellant Daya Ram to stab him and on his instigation, Daya Ram inflicted fatal injury on the neck of the deceased just below the chin, which is a vital part. In view of the aforesaid matrix, only inference which could be drawn is that the appellants had attacked the deceased Mahesh and PW2 Parmod Kumar with a knife in furtherance of their common intention to cause their death. 27. The judgment in the matter of Surendra Singh @ Bittu Vs. State of Uttaranchal(Supra) is not applicable to the facts of this case because aforesaid judgment was based upon its own peculiar factual matrix. In the said case matter, case of the prosecution was that the cattle belonging to the appellant had damaged the standing crops of the deceased and when he protested, hot words were exchanged. There was a scuffle and on the exhortation of his elder brother, the appellant fired a shot from his gun which caused fatal injury to the deceased. The Investigating Officer, however, did not find any Crl.A.No.68/1996 Page 16 of 18

evidence in this behalf and since the underlying cause which resulted in exchange of hot words and scuffle was not established and only one gun shot was fired and also that the appellant was not apprehended at the spot, the Supreme Court took the view that in the aforesaid factual matrix it could not be said that the appellant had an intention to kill the deceased and concluded that the case against the appellant in that case would fall within Section 304 Part II of the IPC. Factual matrix of the case is entirely different. In the instant case, prosecution has been able to establish that the appellants armed with a deadly weapon, a knife, entered the house of Munesh in the late hours of the night at about 2:00 AM and suddenly one of them Suresh caught hold of the deceased and the appellant Daya Ram gave him fatal blow with the knife on the exhortation of Suresh and when PW2 Parmod Kumar tried to intervene, he was also stabbed by Daya Ram. From the aforesaid facts, it can be safely inferred that the appellants had trespassed into the house of Munesh with the intention to kill. Even as per the post mortem report Ex.PW20/A and the opinion of Dr. Rajesh Kumar, PW20, the injury inflicted on the neck of the deceased, which is obviously a vital part of the body was sufficient to cause death of the deceased. Therefore, we have no doubt in our mind that the case of the appellants squarely falls within Section 300 IPC Clause Thirdly. 28. It may also be relevant to point out at this stage that learned Senior Counsel for the appellants has not been able to show us any Crl.A.No.68/1996 Page 17 of 18

evidence which could bring the case of the appellants under either of the Exceptions to Section 300 IPC. 29. Thus, we are of the view that the learned Trial Judge has rightly held the appellants guilty of the offences punishable under Section 302 read with 34 IPC and Section 307 read with 34 IPC. 30. The result is that the appeal is devoid of merit. It is accordingly dismissed. 31. Appellants are on bail. Their bail bond and surety bond are cancelled. The appellants be taken into custody to undergo the remaining sentence. AJIT BHARIHOKE, J. OCTOBER 30, 2009 SANJAY KISHAN KAUL, J. gm/pst Crl.A.No.68/1996 Page 18 of 18