Laxmi Prasad @ Lachhi vs State

Sanjay Kishan Kaul, J.—On being convicted in terms of the impugned judgment dated 09.09.1996 for the murder of Ram Charan (hereinafter called as deceased) punishable u/s 302 IPC and sentenced to undergo RI for life and to pay a fine of Rs. 1,000/-, in default of payment of fine to undergo further RI for a period of six months in terms of the order on sentence of the even date, the appellant has preferred this appeal.

Briefly stated, case of the prosecution is that on the night of 28.06.1992 at around 11.30 p.m., the appellant suddenly entered the jhuggi of the deceased and inflicted a stab wound on the left side of his abdomen with a knife. He threw the knife at the spot and further made an endeavour to strangulate the deceased with his hands. PW2, Din Dayal tried to intervene and caught hold of the appellant with the aid of other persons. The deceased was rushed to the hospital where he was declared brought dead. The constable on duty at RML Hospital conveyed this information to the police station, which was recorded as DD No. 21A (Ex.PW8/A) at 1.00 a.m. on 29.06.1992. On the receipt of DD report, PW8/ASI Bheem Singh along with PW7/Constable Om Parkash reached AIIMS. PW19/S.I. Ranbir Sngh also reached there. S.I. Ranbir Singh recorded the statement (ExPW2/A) of PW2/Din Dayal regarding the occurrence and sent it to the police station along with his endorsement (ExPW19/A) for the registration of the case. On the basis of said statement, formal FIR No. 350/92 was registered u/s 302 IPC at 3.00 a.m. and special report was forwarded to the concerned Magistrate and senior officers. S.I. Ranbir Singh along with other officials and the complainant came at the spot of occurrence. PW1, Bhoni and PW4 Chottey Lal produced the appellant before the Investigating Officer. The knife Ex.P1 which was lying at the spot was seized, blood stained "moonj" of the cot, Ex.P2 and cot Ex.P5 were also seized from the spot. Pyjama, Ex.P3 and Baniyan Ex.P4 of the accused which were stained with blood were also seized and the appellant was arrested. Inquest proceedings were completed and the dead body was sent for post mortem. The seized material was sent to CFSL for chemical analysis and the report was obtained. Scaled site plan was prepared.

On completion of investigation, the appellant was sent for trial for the offence punishable u/s 302 IPC. On being charged for the offence of murder of the deceased, the appellant pleaded innocence and claimed to be tried.

The case of the prosecution is based on the eye witness testimony of PW2 as also of PW1 and PW4. PW4/Chhotey Lal, however, turned hostile. PW1 Sh.Bhoni deposed that on a noise being heard he woke up and saw the appellant having caught hold of the neck of the deceased whereafter PW4/Chhotey Lal and he along with other neighbours caught hold of the appellant and made him sit down in front of his jhuggi. The deceased was rushed to the hospital by PW1, PW2 and 2/3 other persons. The said witness denied any knowledge about the reason for the quarrel though he stated that the appellant had earlier been living with the deceased in his jhuggi. It may be noticed that PW1 was examined on 06.07.1993. However, his cross examination was deferred at the request of the defence counsel and took place only on 09.11.1995. In the cross examination, the said witness partially changed from his original testimony recorded on 06.07.1993 before the Court. He denied that the police had come in his presence or that the knife had been sealed in his presence. He has further stated that when he reached the place of occurrence, the appellant had already been apprehended by other persons who had collected there and he had not seen anything.

In view of the ambivalence in the testimony of PW1 as originally recorded as against what he had stated in his cross examination, testimony of PW2 becomes most material. The said witness is related to the appellant as their wives are sisters. He deposed that the appellant and his wife remained in the jhuggi of the deceased for about one and half months. The appellant used to beat up his wife almost everyday. It was in these circumstances that PW2 and the deceased asked the wife of the appellant to go back to her native village. He denied any knowledge about the cause of beating. On the fateful day, PW2 had gone to meet the deceased at his jhuggi, but the deceased is stated to have returned after 9 P.M. to the jhuggi whereupon PW2 told him that he had already had his meal. It was around 11/11.30 P.M. when the appellant suddenly came there and stabbed the deceased with a knife. PW2 tried to intervene but the appellant threw the knife and started pressing the neck of the deceased with his bare hands. At that stage, PW2 again intervened and raised an alarm. The place of stab wound is stated to be on the left side of his abdomen. PW2 has, however, turned hostile insofar as the motive of the crime is concerned. In the statement recorded u/s 161 of Cr.P.C., the said witness had stated that the appellant had got suspicious that the deceased was having illicit relations with his wife due to which a quarrel had taken place between the appellant and the deceased about two years ago. The witness was confronted with his earlier statement ExPW2/A, who denied having made that statement. He further deposed that the appellant had not met his wife for the last 3-4 years.

The testimony of PW-5/Dr. M.S. Sagar is also material as he had conducted the post mortem. The following ante mortem injuries were found on the body of the deceased:

Abrasion right forearm middle 1/3rd of size 2 cm x 1 cm.

Stab wound left side of the chest placed transversely of size 3.5 cm x 1.3 cm. with tailing of size 7 cm extending medially. The wound was spindle shape with clean cut everted margin placed 2 cm lateral of midline and 20 cm below clavicular margin. The direction was medially upward and backward. It was entering into the pleural cavity through 7th intercostals space causing stab wound of left lower lobe of lung and right ventricle of the heart.

Injury No. 3 multiple contusions (3 in number) with cresenteric abrasions present on the left side of neck covering an area of 7 cm x 5 cm placed parallel to the mandible, placed 3 cm below chin and 5 cm left of midline. There was contusion of underline subcutenous tissues and muscles. The thyroid cartridge and hypoid bone were normal. PW5/Dr. M.S. Sagar has further opined that there was a stab wound on left lower lobe of lung of sixe 1.8 cm x 0.8 cm piercing through and entering into the pericardium. There was a stab wound on right ventricle of the heart of size 1 cm x 0.4 cm. It was cavity deep and there was hamo-pericardium about 80 cc. The cause of death was haemorrhage and shock as a result of above mentioned ante mortem injuries caused by sharp-edged weapon and injury No. 2 was sufficient to cause death in the ordinary course of nature.

Learned Counsel for the appellant has contended before us that in view of vacillation in the testimony of the ocular witnesses, it would not be safe to convict the appellant on the basis of such testimony and the appellant must be given the benefit of doubt.

PW4/Chhotey Lal had turned hostile while PW1/Bhoni had turned hostile during cross examination. PW2/Din Dyal had also turned hostile insofar as the motive of the crime was concerned. The submission of learned Counsel for the appellant is that PW1/Bhoni is actually not an eye witness since he did not see the stab wound being inflicted which has been opined to be the cause of death. learned Counsel has also submitted that PW2 in his testimony has stated that the stab wound was given in the abdomen while PW5/Dr. M.S. Sagar has opined the stab wound to be on the chest. There is also alleged to be contradiction in the testimonies of PW1 and PW2 since PW2 has deposed to the effect that on being apprehended the appellant was tied with a rope. learned Counsel also pleads that no motive has been established as the witnesses turned hostile on the issue of motive.

It is further the submission of learned Counsel for the appellant that the prosecution has not taken due care to show the alleged weapon of offence to PW5/Dr.M.S.Sagar to elicit an opinion as to whether the injury which is opined to have caused the death was capable of being inflicted with the weapon of offence. learned Counsel for the appellant in this regard relies upon the observations of the Supreme Court in Kartarey and Others Vs. The State of Uttar Pradesh, to submit that there is a duty cast upon the prosecution and the Trial Court to do so.

The last submission advanced by learned Counsel for the appellant is that even if the complete case of the prosecution was to be believed, it is an incident of one stab wound alone and that too with a kitchen knife having plastic hand and a blade of about 10.5 cm. Though blood stains of the blood group of the deceased were found on the baniyan and pyjama of the appellant, it is pleaded that the same cannot prove that the appellant had caused the single fatal injury with the intention to cause death and his case at best falls within the ambit of Section 304 Part II and not u/s 302 IPC. learned Counsel in this behalf relies upon a recent order of the Supreme Court in Chhotu Vs. State of Haryana, .

Learned Counsel for the respondent/State on the other hand seeks to support the impugned judgment and submits that insofar as PW2 is concerned, judicial notice must be taken of the time gap between his examination in chief recorded on 06.07.1993 and the cross examination recorded on 02.08.1996, which is more than two years and four months. It is thus pleaded that the time gap has been utilized by the appellant to win over the witness and the testimony of the said witness recorded in the Court originally cannot be brushed away. learned Counsel for the respondent/State has referred to judgment of the Supreme Court in Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, to contend that the original testimony of PW1 should be relied upon and what was deposed after more than two years and four months by PW1 in his cross examination needs to be ignored. Supreme Court, in the instant case, observed as follows:

But counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of the evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this Court � Bhagwan Singh v. State of Haryana, Rabindra Kumar Dey v. State of Orissa and Syad Akbar v. State of Karnataka that the evidence of a prosecution witness cannot be rejected in to merely because the prosecution chose to treat him as hostile and cross-examined 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 their version is found to be dependable on a careful scrutiny thereof.

Insofar as the motive is concerned, once again it is submitted that originally the motive given was the suspicion of the appellant that the deceased was having illicit relations with his wife in respect of which a quarrel had taken place between them about two years ago though PW2 resiled from the same so as not to affect the honour of the family. The knife was seized from the spot as also the blood stains on the baniyan and pyjama of the appellant were having the same blood group AB as that of the deceased. The same blood was also found on the knife.

On examination of the testimony of the witnesses and in the circumstances referred to aforesaid, we find no reason to doubt the testimony of PW2 insofar as the infliction of the wound by the appellant on the deceased and his endeavor thereafter to strangulate the deceased is concerned. PW2 was at the site and in the same place where the appellant attacked the deceased. PW2 has deposed about a wound being inflicted in the left side of abdomen of the deceased, but the nature of injury, as noticed by PW5/Dr. M.S. Sagar, shows how and to what extent the injury has been caused. The distance between the abdomen and lower part of the chest is not large. The stab wound is on the left lobe of the lung and has pierced through and entered into the pericardium. The stab wound has gone to the right ventricle of the heart. We cannot thus say that the variance between the medical evidence and the site of wound inflicted by the appellant on the deceased as given by PW2 is such that he needs to be disbelieved. There is common testimony of PW1 and PW2 in respect of the endeavour of the appellant to thereafter strangulate the deceased to finish the job though he was apprehended and as stated by PW5/Dr. M.S. Sagar there was evidence of attempted manual strangulation and that the stab wound was sufficient to cause death. PW2 has no doubt resiled from his original statement made before the police u/s 161 of Cr.P.C., but that is only on the issue of motive for the crime. The motive was undoubtedly weak in the present case for the reason that even as per the statement of PW2 recorded on 06.07.1993, whatever incident had occurred was more than two years ago and the wife of the appellant had not been seeing the appellant for the last 3-4 years as she was residing in the village. However, the mind of a human being is complex and as to how a person would react and in what manner does not follow a definite pattern.

We also find force in the submission of the learned Counsel for the respondent/State that the testimony of PW1, as recorded on 06.07.1993, cannot be ignored and has to be given due weightage. A partial somersault made by PW1 in his cross examination on 09.11.1995 needs to be ignored, there being a time lag of more than two years and four months between the two and in view of the observations of the Supreme Court in Khujji @ Surendra Tiwari v. State of Madhya Pradesh�s case (supra)

The testimony of PW1 and PW2 has to be seen as a whole and we find that the same is sufficient to establish the guilt of the appellant. The incident in the present case occurred at 11/11.30 P.M. and the deceased was rushed to the hospital where after the Duty Constable informed the police authorities at 1 A.M., the rukka was sent at 2.30 A.M. and the FIR was registered at 3 A.M. The promptness shown by the police authorities in this process thus gives an assurance that there is no possibility of any manipulation on the part of the police authorities so as to falsely implicate the appellant who was apprehended at the spot.

We are also unable to accept the contention of the learned Counsel for the appellant that PW1 cannot be treated as an eye witness. No doubt, PW1 does not depose to the knife injury being inflicted on the deceased by the appellant, but was present at the site to be an ocular witness of the continuing act of the appellant in endeavouring to strangulate the deceased. The deceased had a knife injury to which PW2 has deposed, the knife was recovered from the spot and the appellant was seeking to strangulate the deceased. The testimony of PW1 is thus extremely relevant for this purpose.

The knife was recovered from the spot and the knife was a kitchen knife with a plastic handle. However, the nature of injury would depend on the angle at which the knife is used, the force with which is it is used and the sharpness of the knife. The blade of the knife was 10.05 cm long. The prosecution, no doubt, has been slightly remiss in not confronting PW5/Dr. M.S. Sagar, who conducted the post mortem, with the weapon of offence, but the categorical statement of PW5 that the death was caused by the ante mortem injury caused by a sharp edged weapon coupled with the recovery of knife from the spot is sufficient to bring home the guilt of the appellant.

The next submission on behalf of the appellant is that admittedly the weapon of offence i.e. knife Ex.P1 was not shown to PW5 Dr .M.S. Sagar either during the investigation or trial, to seek his opinion whether fatal injury found on the body of the deceased could have been caused by Ex.P1. From this, he has urged us to infer that the prosecution has not been able to link the knife Ex.P1 with the fatal injury. In support of this contention, he has relied upon the judgment of Supreme Court in the matter of Kartarey v. State of U.P. (supra)

In our considered view, the above judgment is based upon its own peculiar facts and is not applicable to the facts of this case. Perusal of the above referred judgment reveals that in that case there were six accused who had assaulted the deceased and the deceased had suffered multiple wounds and, therefore, the Supreme Court highlighted the problem faced by the Courts in such cases where all or any of the injuries could be caused with one or more weapons and in such cases, it becomes important to connect the weapon of offence with the injury to come to the conclusion as to who caused the fatal injury. Otherwise also, the relevant observation of the Supreme Court is in the nature of a caution highlighting the rule of prudence. In the instant case, there is only one knife stab injury caused by a single accused, therefore, non-showing of the weapon of offence to the doctor, in our view, is not fatal to the case of the prosecution, though it would have been ideal to show the knife to the doctor concerned and seek his opinion.

We may also note that the blood group of the deceased was AB and the same blood group has been found on the baniyan and pyjama of the appellant which have been seized for which there was no explanation given by the appellant in his statement recorded u/s 313 of Cr.P.C.

The last aspect to be examined is the plea of the learned Counsel for the appellant that the wound inflicted being a single knife wound, the case of the appellant at best is covered u/s 304 of IPC and not u/s 302 of IPC. We are not impressed with this argument. It is not a case of any sudden fight. The time of the incident is 11/11.30 P.M. The appellant had no reason to visit the jhuggi of the deceased at that time. The appellant came with the kitchen knife to the jhuggi of the deceased and inflicted the stab wound. The intention of the appellant is further clear from his endeavour thereafter also to strangulate the deceased. The appellant was apprehended but the stab wound itself was sufficient to have caused the death of the deceased as opined by PW5/Dr.M.S.Sagar. In this behalf, facts of each case would have to be seen and the order in Chhotu v. State of Haryana�s case (supra) is of no help taking into consideration the nature of injury caused. It is in fact an order and not a judgment. Para 5 of the said order shows that the case was one where there were no external marks of injuries over the body except a diffused swelling over left temporal region. In the facts of the present case, there is an infliction of a knife stab, one which has pierced through right lung and part of the heart. The case of Chhotu v. State of Haryana would thus have no applicability to the facts of the present case.

We find no infirmity in the impugned judgment dated 09.09.1996 and the order on sentence of the even date vide which the appellant has been convicted u/s 302 of IPC and sentenced to RI for life and to pay a fine of Rs.1,000/- in default of payment of fine to further undergo RI for six months.

The appeal is accordingly dismissed. The appellant, who is in custody, shall serve the remaining sentence.

A copy of the Judgment be forthwith sent to the concerned jail authorities.