Chandan vs The State

Ajit Bharihoke, J.—Appellant Chandan, having been convicted for the offence punishable u/s 302 IPC in Sessions case No.61/94, FIR No.312/93, P.S. Kashmere Gate vide impugned judgment dated 08.11.1996 and sentenced to undergo imprisonment for life and also to pay a fine of Rs.1,000/-, in default of payment of which to undergo RI for a further period of three months in terms of order on sentence dated 13.11.1996, has preferred this appeal.

Briefly stated, case of the prosecution is that on 28.05.1993 at about 8.40 p.m., ASI Karan Singh of PCR informed P.S. Kashmere Gate about the stabbing of one person in Ram Bazar, Mori Gate. This information was recorded as DD No.17A in daily diary maintained at the police station. Copy of the said DD report Ex.PW5/A was entrusted to PW8 S.I. Dharam Pal, who along with Constable Subhash left for the place of occurrence. On reaching the place of occurrence, S.I. Dharam Pal found that the injured person had already been removed to Hindu Rao Hospital by Constable G. Raj Kumar and the complainant PW2 Neelam, sister-in-law of the injured. S.I. Dharmpal then visited the hospital along with PW17 SHO Inspector K.K. Kaushik who had also reached at the spot of occurrence. PW17 obtained the MLC of the injured Rakesh (Ex.PW17/C) vide which he was declared brought dead. PW2 Ms.Neelam was present at the hospital and her statement Ex.PW2/A was recorded by SHO Inspector K.K. Kaushik. He appended his endorsement on the said statement of Ms.Neelam and sent it to the police station at 9.50 p.m. for registration of the case. On the basis of said statement formal FIR No.312/93 (Ex.PW17/D) was registered at police station Kashmere Gate.

PW2 Ms.Neelam in her statement Ex.PW2/A stated that in the evening of 28.05.1993 at about 8.15 p.m. she was going to Ram Bazar for some personal work. Her brother-in-law Rakesh (hereinafter referred to as "deceased") was also going to Ram Bazar, Mori Gate along with the appellant Chandan, son of Govind Ram. They were slightly ahead of her. When they reached the clinic of Dr.Kalra, they suddenly started grappling with each other. Before she could react, appellant Chandan, who was carrying a "churi'' in his hand, inflicted several "churi'' blows on the person of the deceased while uttering the words ''Mein Tera Kaam Abhi Karta Hoon''. Thereafter the appellant ran away. She took the deceased to the clinic of Dr.Kalra but she was advised to immediately take him to the hospital. In the meanwhile Constable G. Raj Kumar who was on patrol duty reached at the spot and with his help, she took the deceased to Hindu Rao Hospital in a three wheeler scooter where the doctor, after examining him, declared him brought dead.

It is also the case of the prosecution that in the same evening at about 9.00 p.m., PW12 Head Constable Brahm Pal Singh and Constable Mahavir, while on patrol duty in the area, noticed the appellant coming from the side of "ganda Nala" with a blood stained "churi'' in his hand. He was apprehended by the above police officials and the "churi'' was taken from him. The appellant was thereafter produced along with "churi'' before PW17 Inspector K.K. Kaushik, who had returned back from hospital to the spot of occurrence i.e. the corner of Ram Bazar, Mori Gate. Inspector K.K. Kaushik prepared the sketch of the said "churi'' (Ex.PW8/A) and took it into possession after converting it into a sealed packet. The shirt of the accused was stained with blood. He was made to remove the shirt and the said shirt was taken into possession after converting it into a sealed packet. By that time complainant Neelam also came back from the hospital and she identified the appellant as the person who had stabbed the deceased. Inspector K.K. Kaushik also prepared the rough site plan and he lifted the blood samples from the spot of occurrence besides the earth control. The Rexene of the bench in the clinic of Dr.Kalra was also stained with blood, therefore, the blood stained samples of Rexene was also seized. The place of occurrence was got photographed, inquest proceedings were conducted by Inspector K.K. Kaushik and the dead body was sent for post mortem examination, which was conducted by Dr.L.T. Ramani on 29.05.1993. As per the post mortem report, the cause of death of the deceased was shock and haemorrhage consequent to injuries. Dr.Ramani also opined that the injuries found on the dead body were possible with the "churi'' Ex.P1 and that the shirt of the deceased was having cut marks corresponding to the injuries. The exhibits seized from the spot of occurrence as well as the "churi'' seized from the appellant and the shirt of appellant as well as the clothes of the deceased were sent for chemical analysis and as per the CFSL report all the samples except the earth control and the blood stained gauze tested positive for human blood and the blood group found on the shirt of the appellant as well as the "churi'' matched with the blood group of the deceased found on his pant and shirt, besides the blood group found on the Rexene piece seized from the clinic of Dr.Kalra. On completion of formalities of investigation, challan against the appellant was submitted and he was sent to face trial for murder of the deceased Rakesh.

The appellant was charged for the murder of Rakesh punishable u/s 302 IPC. He pleaded not guilty to the charge and claimed to be tried.

In order to bring home the guilt of the appellant, prosecution has examined 18 witnesses. However, the material witnesses for the purpose of disposal of this appeal are PW2 Smt. Neelam and PW7 Satya Prakash, who were claimed to be the eye witnesses to the occurrence as also PW12 HC Brahm Pal Singh, who purportedly apprehended the appellant shortly after the occurrence with blood stained "churi" Ex.P1 in his hand. Before adverting to the submissions made on behalf of the appellant, we deem it necessary to have a look upon the testimony of the above witnesses.

PW2 Ms. Neelam is the sister-in-law of the deceased. She, in her testimony, has claimed that on 28.05.1993 at about 08:15 pm, when she was going to the market, she saw the appellant Chandan and the deceased quarrelling with each other at some distance ahead of her. Before she could react and reach near them, the appellant Chandan Dass inflicted 4/5 ''churi'' blows on the person of the deceased and ran away. She claimed that while inflicting ''churi'' blows, the appellant was uttering the words that he would just finish him off. She took the injured Rakesh (deceased), who was bleeding profusely, to the clinic of Dr. Kalra but she was advised to take the deceased to the hospital. Thus, she took the deceased to the hospital in a Three Wheeler Scooter with the help of Constable Raj Kumar, who by chance, reached there and at the hospital, the deceased was declared brought dead. She also claimed that police met her at the hospital and recorded the statement Ex.PW2/A, which was signed by her at Point X.

PW7 Satya Prakash, the other eye witness examined by the prosecution turned hostile and he has not supported the case of the prosecution. He, however, in his cross-examination by the learned Prosecutor admitted his signatures on the seizure memos Exhibits PW6/A and PW7/B relating to seizure of the blood-stained piece of Rexene from the bench lying in the clinic of Dr. Kalra, Shop No. 3017, Ram Bazar, Mori Gate, Delhi and the seizure of the blood-stained earth after breaking the stones at the place of occurrence as well as the earth control sample respectively.

PW12 Head Constable Brahm Pal Singh testified that on 28.05.1993, he was on patrol duty with Constable Mahavir. At about 09:00 pm, at the petrol pump near Mori Gate, someone informed him that a person known by the name Chandan had stabbed one Rakesh and disappeared in the "gali". On this information, he along with the Constable proceeded in search of the accused and near "ganda nala", near Hamilton Road, they spotted the appellant Chandan coming from the side of "ganda nala" with a ''churi'' in his hand. The appellant was apprehended and ''churi'' Ex.P1 was stained with blood. Shirt of the appellant was blood stained. PW12 further claimed that on inquiry, the appellant admitted his guilt. He was therefore taken to the police station where they came to know that the SHO had already left for the spot of occurrence. Therefore, he took the appellant and "churi" to the spot of occurrence at the corner of Ram Bazar, Mori Gate and produced the appellant as well as the ''churi'' Ex.P1 before the SHO Inspector K.K.Kaushik (PW17). The SHO prepared sketch of the ''churi'' Ex.PW8/A, converted the ''churi'' into a sealed packet and took it into the possession vide seizure memo Ex.PW8/B. The witness identified his signatures on the sketch of ''churi'' Ex.PW8/A and seizure memo Ex.PW8/B.

PW9 Dr. L.T.Ramani is another important witness, who conducted post-mortem examination on the dead body of the deceased on 29.05.1993. He has proved his report Ex.PW9/A. According to Dr.L.T.Ramani, post-mortem examination revealed following injuries on the person of the deceased:

An incised stab wound 22 cm X 2 cm X? Places vertically on the left claricular area. (collar bone region).

The lower end of the injury was actually cut.

An incised wound 2 cm X 1 cm X ? vertically present just below and medial to the left nipple.

An incised wound 3 cm X 1.5 cm X? transversally places on the middle of left arm over anterolateral surface. The medial end was actually cut.

An incised wound 1.5 cm X 0.8 cm X? Transversally placed on the back of left arim upper part. The posterior end of the injury was actually cut.

Injury No. 3 and 4 were found to be communication with each other.

An incised wound 2.5 cm X 1.5 X ? vertically placed on the left lateral chest wall on the seventh ribs, lower end was acute.

An incised wound 20.cm X 1.5 cm. X ? sprindle shape on the top of left shoulder.

An incised wound 2 cm X 0.5 cm. X muscle deep on the left scapular area.

An incised wound 2 cm. X 1 cm. X ? placed vertically on the left renal angle.

On Internal examination

Scalp tissues were normal, skull bones were intact, brain was pale, neck tissues were normal.

Injury no. 1 on the chest was only muscle deep. So was injury no.2. Injury no. 5 had entered left chest cavity through 7th intercostals space and was directed upwards and medially where it is involved pericardium and tip of the left ventricle of the heart. Left chest cavity was full of blood. Stomach contained little food. Other abdominal organs were normal and pale.

In the opinion of PW9 Dr. L.T.Ramani, all the injuries were ante mortem and caused by a sharp weapon and injury No. 5 was sufficient in the ordinary course of nature to cause death. The witness opined that the death was caused due to shock and haemorrhage consequent to the injuries and the injuries found on the person of the deceased were possible with the ''churi'' Ex.P1. He fixed the time of death around 18 hours prior to the post-mortem examination. Dr.L.T.Ramani (PW9) further stated that at the time of post-mortem examination, the deceased was wearing shirt Ex.P8 and pant Ex.P9 which were stained with blood and those clothes were sealed by him in a packet with the seal of "LTR".

PW8 SI Dharam Pal was initially entrusted with the copy of DD report regarding the incident for verification. He conducted part investigation before it was taken over by the SHO Inspector K.K.Kaushik (PW17). PW17 Inspector K.K.Kaushik has testified about the investigation done by him.

The appellant has denied the case of the prosecution in his statement u/s 313 Cr.P.C. He explained that he was in the business of flower decoration. On the fateful night at about 09:00 pm, he had gone to purchase medicines for his ailing father and on the way, he came across police constables who asked him to accompany them to the police station as the SHO wanted some flower decoration done at the police station for some public function to he held there. However, at the police station, he was falsely involved in this case. The appellant categorically denied his involvement in the murder of the deceased or the recovery of blood-stained ''churi'' from his possession. He further stated that when he was taken to the police station, there were no blood-stains on his clothes. In his defence, the appellant has examined three witnesses namely DW1 Bharat Bhushan, DW2 Joginder Kumar and his mother DW3 Smt. Prem.

DW1 Bharat Bhushan has deposed that on the fateful night at about 08:15 pm, he came out of his house for a stroll and found a large crowd on the left side of his house. When he went there out of curiosity, he saw the deceased lying there in injured condition. Since deceased Rakesh was known to him, he went to his house but the brother of the deceased was not available. He, therefore, informed the sister-in-law (''bhabi'') of the deceased that Rakesh had sustained injuries. He also claimed that he had seen 3/ 4 persons taking the deceased to the clinic of Dr. Kalra, which was located near the place of occurrence. He also stated that when he came back after informing the ''bhabi'' of the deceased, he saw the deceased being taken in a Three Wheeler Scooter by a constable and one other person. ''Bhabi'' of the deceased, who had accompanied him, inquired from Dr. Kalra as to where her brother-in-law Rakesh (deceased) had been taken by those persons. She was told that Rakesh had been taken to the hospital and on this, he brought a Three Wheeler Scooter on which "bhabi'' of the deceased went to the hospital along with two other persons.

DW2 Joginder Kumar has stated that he used to supply flowers to the appellant. On 28th May, 1993 at about 9:00 pm, while he was going to the house of the appellant to supply flowers, near Parkash Dhaba, Mori Gate, he saw the appellant standing with two persons and one of those persons was in police uniform. When he asked the appellant to accompany him, the appellant told him that he was going to purchase medicines for his father and also to the police station with those two persons as there was some order for flower decoration at the police station. Thereafter, the appellant left with those two persons. The witness further stated that at that time, there were no blood-stains on the white ''kurta pajama'' which the appellant was wearing.

DW3 Smt. Prem is the mother of the appellant. She had stated that on 28.05.1993 at about 8:45 pm, she sent the appellant for purchasing medicines for his father, who was suffering from cancer. She has further stated that on the said night, DW2 Joginder Kumar, who used to supply flowers to the appellant, visited her house and told her that he had seen two persons taking the appellant Chandan towards police station side. He also told that those two persons were police officials and they told him that they were taking Chandan to the police station for flower decoration. The witness further stated that DW Joginder then unloaded the flowers from rickshaw and went away.

The learned Trial Judge, on consideration of the evidence on record, found the appellant guilty of committing murder of the deceased Rakesh and convicted him of the charge u/s 302 IPC.

Learned Ms. Meena Chaudhary Sharma, Advocate appearing on behalf of the appellant has submitted that the appellant is innocent and he has been falsely implicated by the police after picking him from near his house. Learned counsel submitted that the case of the prosecution rests solely on the testimony of purported eye witness PW2 Neelam, who admittedly is the sister-in-law of the deceased. Thus, she can be categorized as an interested witness. Learned counsel further submitted that PW2 Neelam is not a reliable witness, firstly, because her presence at the time of occurrence is highly doubtful for the reason that though she claims that she saw the occurrence, she has not mentioned the name of the appellant Chandan as the person who stabbed the deceased while giving the alleged history to the doctor concerned at the time of preparation of the MLC of the deceased Ex.PW17/C. Learned counsel argued that the presence of PW2 Neelam at the time of occurrence is also doubtful for the reason that though she claims that she took the injured, who was profusely bleeding, from the spot of occurrence to Dr. Kalra''s clinic and from there, to Hindu Rao Hospital in a TSR along with Constable G. Raj Kumar, she could not tell in cross-examination whether or not her clothes were stained with blood. Admittedly, her blood-stained clothes were not seized by the police, which leads to an inference that there was no blood on the clothes of the witness, which circumstance belies her version and rules out her presence at the time of occurrence. Learned counsel for the appellant also referred to the testimony of DW1 Bharat Bhushan detailed above and submitted that from the said evidence of DW1, it is apparent that it was DW1 who had informed PW2 about the deceased lying in injured condition at the spot and thereafter, PW2 reached there, which rules out a possibility of her having witnessed the occurrence. Learned counsel also submitted that the version of PW2 Neelam is also doubtful because of the fact that there is no independent witness to the occurrence and her conduct is unnatural in not trying to save the deceased when she noticed the appellant grappling with him.

We do not find merit in the above argument. Undoubtedly, PW2 Neelam is related to the deceased being his ''bhabi'', but this by itself, cannot be taken as a reason to discard her testimony at the outset. It is trite law that mere relationship with the deceased alone cannot be a ground to discard the testimony of a witness. However, as a matter of prudence, in such a case, the court is required to scrutinize the evidence of such witness with extra care and caution before acting upon the same. In the instant case, on careful scrutiny of the evidence on record, we do not find any reason to suspect the veracity and credibility of PW2 Neelam. As per the case of the prosecution, the occurrence took place at about 08:15 pm near Dr. Kalra''s clinic, Premises No. 3107, Ram Bazar, Mori Gate, Delhi. As per the MLC of the deceased Ex.PW17/C, he was brought to the hospital by PW2 Ms. Neelam on 28.05. 1993 at 08:55 pm with the "alleged history of stab chest and abdomen". The fact that PW2 Neelam had reached the hospital along with the deceased within about 40 minutes of the occurrence gives an assurance of her presence at the time of occurrence. Merely because the Investigating Officer did not care to seize her clothes, which obviously would have some blood stains, her testimony cannot be suspected. It is neither the case of the prosecution nor the defence of the appellant that there was any ill-will or enmity between the parties or their respective families. Thus, we find no reason as to why PW2 Neelam would implicate the appellant for the murder of her brother-in-law Rakesh. On the other hand, the fact that PW2 Neelam is ''bhabi'' of the deceased provides an assurance that she is telling the truth, because a close relative of the victim would never like the real culprit to go unpunished. As regards, the testimony of DW1 Bharat Bhushan referred to by the learned defence counsel, we may note that he does not appear to be a truthful witness. DW1 Bharat Bhushan has stated that on the relevant day, he found the deceased lying in injured condition surrounded by a crowd in the street near his house. He therefore, went to the house of the deceased to inform his relations and met ''bhabi'' of the deceased and informed her that the deceased was lying injured in the street. He also claims that he had seen 3/4 persons taking the deceased to Dr. Kalra''s clinic and when he returned back, after informing the ''bhabi'' of the deceased, he saw one Constable and another person taking away deceased in a TSR. According to this witness, ''bhabi'' of the deceased also came there and when she was told that the deceased had been taken to the hospital, she also went there in a TSR along with two other persons. If this version is to be believed, then PW2 Neelam, ''bhabi'' of the deceased had followed the deceased to Hindu Rao Hospital after some time gap. In that eventuality, it is apparent that deceased must have been admitted in the hospital by the said Constable or the person who had accompanied him and the deceased to the hospital. The MLC, however, tells a different story. As per the MLC Ex.PW17/C, the deceased was brought to the hospital by PW2 Neelam. This circumstance in itself is sufficient to show that DW1 Bharat Bhushan is not a truthful witness, thus unreliable. The fact that the appellant has tried to introduce a false witness also goes against him and gives an assurance that PW2 Neelam is telling the truth.

As regards the criticism to the testimony of PW2 that her version has not been corroborated by the other purported eye-witness PW7 Satya Prakash, it is suffice to say that he is a hostile witness and if he has chosen not to support the prosecution case, this cannot be taken as a circumstance to suspect the testimony of PW2, which is otherwise reliable. It is pertinent to note that though, in his cross-examination, PW7 denied the suggestion that the sample blood from the stone as well as the control earth were seized in his presence by the IO and also that the sample of blood-stained Rexene from a bench lying in the clinic of Dr. Kalra was seized in his presence, he admitted his signatures as a witness on the seizure memos Exhibits PW6/A and PW7/B pertaining to the abovesaid seizures. He has not explained, if he was not a witness to the said seizures, why and under what circumstances he signed those seizure memos as a witness. In absence of any such explanation, one can safely infer that PW7 is suppressing the truth and he is an unreliable witness.

Learned counsel for the appellant also submitted that absence of the name of the assailant who had stabbed the deceased, in the MLC Ex.PW17/C, also casts doubt against the credibility of PW2 Neelam. She submitted that had PW2 Neelam been the witness of occurrence, under the natural course of circumstances, she would have mentioned the name of the assailant as Chandan while giving history of the injuries of the deceased to the concerned Doctor who prepared the MLC. We do not find merit in this contention. From the record, it is obvious that the deceased had sustained serious injuries and he was bleeding profusely. As a matter of fact, he reached the Hospital almost dead and he was declared brought dead after examination. In such a situation, one can imagine that PW2, because of her concern for the life and safety of her brother-in-law Rakesh (deceased), must have been under severe stress and trauma and when she took the deceased to the Doctor, her first concern at that moment obviously was to ensure immediate treatment to her brother-in-law in order to save his life. If, under such traumatic circumstances, she failed to mention the name of the assailant while giving history of the incident to the Doctor, it cannot be taken as a circumstance to doubt her testimony.

Testimony of PW2, when read as a whole, is consistent with the case of the prosecution and it appears to be natural. This witness has been cross-examined at length by the learned defence counsel but nothing material so as to discredit her version could be elicited. It is pertinent to point out that as per PW2, she had taken the injured Rakesh from the spot of occurrence to the clinic of Dr. Kalra, which version stands corroborated by the fact that the piece of blood-stained Rexene seized by the Investigating Officer Inspector K.K.Kaushik, when sent for CFSL examination, as per the report, tested positive for human blood group B, which matched with the blood-group of the blood-stains found on the shirt and pant of the deceased. According to the statement of PW2 Neelam, the incident took place at 08:15 p.m. on 28.05.1993. As per the MLC Ex.PW17/C, the deceased was brought to the hospital by PW2 Neelam at 08:55 p.m. and as per the FIR, which is also exhibited as Ex.PW17/C, the case was registered at the police station at 10:25 p.m. From this, it is apparent that the FIR in this case was registered within approximately two hours of the occurrence, which time factor in itself rules out any possibility of manipulation or cooking up a false story against the appellant Chandan. Thus, we find that the learned Additional Sessions Judge has rightly relied upon the testimony of PW2 to hold the appellant guilty.

Learned counsel for the appellant further submitted that this is a case of unfair investigation inasmuch as that the ''churi'' Ex.P1 has been planted to have been recovered from the possession of the appellant. The case of the prosecution in this regard is that on 28th May 1993 at about 09:00 pm, the appellant was found coming from the side of "ganda nala" with the blood-stained ''churi'' Ex.P1 in his hand and he was apprehended by PW12 Head Constable Brahm Pal Singh and Constable Mahavir. Learned counsel submitted that aforesaid story of prosecution is highly improbable because no reasonable person, after committing a murder, would keep on holding the weapon offence instead of immediately getting rid of it. She submitted that the testimony of PW12 Head Constable Brahm Pal Singh to prove said recovery is not reliable, also because of the reason that the other witness to the recovery of "churi" Ex.P1 i.e. Constable Mahavir has not been examined on this fact.

In the first blush, the version given by PW12 Head Constable Brahm Pal Singh appears to be unnatural because under the normal course of circumstances, no reasonable man, after stabbing a person would keep on roaming around in the vicinity of the place of occurrence with the blood-stained weapon of offence in his hand. But, such a conduct is not an impossibility because different people react to the same situation in a different manner. Moreover, the act of causing a serious bodily harm or committing murder does impact on the psychology of the accused and as an after effect of such a heinous act, rational thinking on the part of the accused gets impaired. Therefore, a possibility cannot be ruled out that PW12 Head Constable Brahm Pal Singh might be telling the truth, particularly when he had no axe to grind with the appellant. Be that as it may, version of PW12 is certainly suspect. This however cannot be taken as a reason to discard the testimony of PW2 Neelam, which is found reliable. It is well known that police in this country indulge in padding to strengthen its case against the accused but such padding on the part of the Investigating Officer cannot be taken as a reason for rejecting the testimony of a witness, which on careful scrutiny, is found to be truthful and reliable.

Learned counsel for the appellant has also raised the issue of juvenility of the appellant at the time of commission of offence and submitted that if he is found to be guilty, in the alternative, his case should be dealt with in accordance with the "Juvenile Justice (Care and Protection of Children) Act, 2000" (for short the "Act"). In support of this contention, she has placed on record a School Leaving Certificate of the appellant purported to have been issued by the Principal of Government Boys Senior Secondary School-I, Mori Gate, Delhi. On perusal of the School Leaving Certificate, it transpires that the date of birth of the appellant is 15th March, 1975. As per the prosecution case, the incident took place on 28th May, 1993. Going by the date of birth of the appellant mentioned in the School Leaving Certificate, it is apparent that on the date of occurrence, i.e. 28.05.1993, the age of the appellant was slightly more than 18 years and 2 months. A Juvenile or child has been defined in Section 2(k) of the Act as a person who has not completed 18th year of age. In the instant case, the appellant was more than 18 years old at the time of occurrence. Therefore, his case does not fall within the purview of the Act.

In view of the discussion above, we find that the learned Additional Sessions Judge has rightly relied upon the testimony of PW2 to find the appellant guilty of murder and we find no reason to interfere with the judgement. There is no merit in the appeal, which is accordingly dismissed.

The appeal is disposed of.