Prem Kumar vs The State

Ajit Bharihoke, J.—This appeal is directed against the judgment and order on sentence both dated 1st October, 1994 of the Additional Sessions Judge, Delhi by which the appellant has been convicted of an offence punishable u/s 302 of the Indian Penal Code and has been sentenced to undergo life imprisonment and to pay a fine of Rs 3000/- and in default to undergo further rigorous imprisonment for a period of one year. W.P.(Crl.) 1052/2008 Page 2 of 14

Briefly stated case of the prosecution is that, on 1st December, 1992, at about 7.30 P. M, near Akbar Hotel, near Ganga Mai Mandir, A-Block, Madi Pur, Punjabi Bagh, Delhi, deceased Arun Kumar was stabbed with a chhuri (dagger) by the accused/appellant Prem Kumar, while he was going towards his residence. The deceased was accompanied by PW-1 Panna Lal. On being stabbed, the deceased somehow ran and managed to reach his house. He was followed by Panna Lal. There he told his father Kartar Singh that he has been stabbed by accused Prem Kumar. Kartar Singh and Panna Lal then took the deceased Arun Kumar to ESI Hospital. The duty constable present at the hospital conveyed the information to the police station which was recorded as DD No. 30, dated 1st December, 1992. Copy of the DD report was handed over to ASI Jai Kishan who arrived at the hospital. In the meanwhile SI Harpal Singh also came to know about the information and reached the hospital. He obtained the MLC of Arun Kumar who was declared unfit for statement. SI Harpal Singh recorded the statement of PW-1 Panna Lal at the hospital and it was sent to the police station for registration of the case. SI Harpal Singh also collected the sealed packet of the clothes of the deceased from the duty constable. He also took possession of the blood stained pants of PW-1 Panna Lal and father of the deceased. Putting those pants into sealed packets, SI Harpal Singh, thereafter, came to the spot and lifted the blood stained earth and controlled earth which was taken into possession after placing them in sealed parcels. On the same night on pointing of PW-1 Panna Lal, investigation officer apprehended accused Prem Kumar near his house. On search it was found that he was in possession of one chhuri (dagger) Ex. P-9 which was tucked in the belt of pant of the accused and concealed under the shirt. There were blood stains on the chhuri (dagger). Sketch of the dagger was prepared and it was taken into possession. Investigating Officer also took into possession blood stained pant and the shirt of the accused after putting those clothes into a sealed packet. During investigation IO visited Akbar Hotel. There he met eye witnesses PW-6 Daulat and PW-7 Ismail Khan. He recorded their statements. The IO also prepared a rough site plan of place of occurrence Ex.PW 22/C on 2.12.1992 and got prepared scaled site plan Ex.PW 11/A from the draftman on 2.2.1993. He arranged for sending of blood stained clothes of the deceased, the accused, PW-9 Kartar Singh and PW-1 Panna Lal as also blood stained earth sample and the dagger to Central Forensic Science Laboratory (CFSL). On serological examination human blood of blood group ''O'' was found on all the samples except the control earth sample which gave no reaction for blood. The IO also sent the accused for medical examination and obtained his MLC which indicated linear abrasion (scratch) on medial aspect of his right thigh about 3.5 cm in size. On completion of the investigation the accused was sent for trial.

The learned Additional Sessions Judge has relied upon the testimonies of PW-6 Daulat and PW-7 Ismail Khan and PW-9 Kartar Singh, father of the deceased, as also the evidence pertaining to recovery of chhuri /dagger from the possession of the accused at the time of his arrest which had blood stains and those blood stains ultimately were found to be of the group ''O'' which was the blood group of the deceased, and concluded that prosecution has proved the guilt of the appellant beyond reasonable doubt.

Ms. Neelam Grover, learned Counsel for the appellant has contended that the prosecution case is full of infirmities and it has failed to make out the case against the appellant beyond reasonable doubt. Inasmuch as PW-1 Panna Lal has not supported the case of prosecution and has even denied that the rukka was prepared at his behest. She has contended that names of the eye witnesses PW-6 Daulat and PW-7 Ismail Khan do find mention in the FIR and even their presence at the spot at the time of occurrence is highly doubtful. The learned Counsel for the appellant has further argued that the recovery of the weapon of offence i.e. dagger Ex.P-9 is also doubtful as it is most unnatural that the accused would carry the weapon of offence on his person after inflicting serious stab injuries to the deceased for hours after the occurrence. Thus, she has urged us to infer that prosecution has failed to establish the guilt of accused beyond reasonable doubts and that the appellant has been falsely implicated in this case.

The learned Counsel for the State on the other hand has contended that learned trial court has rightly relied upon the testimonies of PW-6 Daulat and PW-7 Ismail Khan as also the father of the deceased, Kartar Singh, regarding his son having told him the name of the appellant as the assailant and also about the recovery of the blood stained dagger from the possession of the accused at the time of the arrest. The learned Counsel for the State further contended that non-mention of names of eye witnesses PW-6 Daulat and PW-7 Ismail Khan in the FIR would not render their testimonies unreliable, if otherwise trustworthy. He also submitted that the factum of PW-1 Panna Lal turning hostile, is of no consequence because the guilt of the accused stands proved beyond reasonable doubt from the testimonies of the eye witnesses which finds corroboration from the evidence of the recovery of dagger having blood stains of blood group ''O'' which was the blood group of the deceased and also the dying declaration made by the deceased to his father Kartar Singh immediately after the occurrence.

It has been urged on behalf of the appellant that presence of PW-6 Daulat near the spot of occurrence is highly doubtful. In support of this contention, the learned Counsel for the appellant has drawn our attention to the testimony of PW-6 Daulat, wherein he has stated that he, at the relevant time, was working at a chappal shop at Karol Bagh and on working days he used to leave the shop at about 8/8.30 P.M, thereafter, he used to proceed for his home by bus and the travelling time from Karol Bagh to his home was about twenty minutes. Ld. Counsel has pointed out that in his cross-examination PW-6 Daulat has admitted that the day of occurrence was a working day and not a holiday. On the aforesaid facts she has argued that if it was a working day, PW-6 Daulat could not have reached the spot of occurrence at 7.30 p.m, therefore, his testimony ought to have been rejected as doubtful. We are not in agreement with this contention of the learned Counsel for the appellant. It is not uncommon that people sometimes leave their place of work earlier to closing hours because of various reasons. It is possible that the witness might have left the shop early on the relevant day. It would be noticed from his cross-examination that the learned defence counsel has not asked any question to seek clarification from the witness whether or not he left the shop on the relevant day earlier to the closing hours.

The learned Counsel for the appellant has further urged that testimony of PW-7 Ismail Khan is also not reliable because he has stated that immediately after the occurrence he visited the house of the accused but he did not disclose his name to the father of the deceased. The learned Counsel has further submitted that if PW-7 Ismail Khan had seen the accused stabbing the deceased, it was expected of him to tell the father of the deceased his address and that the appellant Prem Kumar has stabbed his son. Thus, she has urged us to reject his testimony. We are not convinced with the submission because we cannot lose sight of the fact that when the deceased had reached home he was seriously injured and at that time the main concern of the father of the deceased as also the others was to immediately take him to hospital to save his life. Otherwise, also it is not clear whether on reaching the house of the deceased witness, Ismail Khan had an opportunity to talk to the father of the deceased. It is note worthy that different people react to a situation in a different manner, therefore, just because the witness did not give his name to the father of the deceased his testimony cannot be rejected as unreliable.

The learned Counsel for the appellant has further submitted that PW-6 Daulat and PW-7 Ismail Khan have been introduced only to provide support to the prosecution. In support of her contention, learned Counsel has drawn our attention to the site plan Ex. 22/C, which obviously was prepared on 2nd December, 1992. She has argued that in this rough site plan mark, D and E, are shown as points defining the position of eye witnesses PW-6 Daulat and PW-7 Ismail Khan at the time of occurrence. In support of the argument she has drawn our attention to the testimony of PW-22, SI Harpal Singh, the I.O, and has submitted that according to the statement of SHO Sh. S. Kumar (PW27), he along with SI Harpal Singh visited the spot of occurrence in the morning of 3rd December, 1992 at around 11.30 to 11.45 A.M for making inquiry from the locals. Learned Counsel has pointed out that SHO, Sh. S. Kumar, is categoric in his version that except PW-6 Daulat and PW-7 Ismail Khan who came forward, everyone else expressed ignorance about the occurrence. She contended that from the above evidence, it is apparent that PW-6 Daulat and PW-7 Ismail Khan met the SHO S. Kumar for the first time on 3rd December, 1992, therefore, it remains unexplained as to how position of said witnesses at the time of occurrence came to be shown in the site plan Ex. PW 22/C, which was prepared on 2nd December, 1992. Thus, she has submitted that presence of PW-6 Daulat and PW-7 Ismail Khan at the time of occurrence is doubtful and the learned Additional Sessions Judge has erred by placing reliance on their testimony.

The argument on the face of it appears to be convincing but we are not inclined to accept it, particularly when SI Harpal Singh, who is the author of site plan Ex. PW 22/C, in his cross examination recorded on 23rd August, 1994 has stated that on 2nd February 1993 (it appears that 1993 is a typographical error in the evidence and it should have been 1992) all the three witnesses indicated the respective places where they were standing at the time of occurrence, to the draftman. He has also stated in his cross-examination that on the said date he had summoned all the three witnesses to the spot occurrence. This clarifies the position that Daulat and Ismail Khan had actually met SI Harpal Singh on 2nd December, 1992 and on their pointing out the rough site plan Ex. PW 22/C was prepared. Therefore, much mileage cannot be obtained by the appellant because of the slight discrepancy as regards the date on which eye witnesses Daulat and Ismail Khan, first met the Investigating Officer and this minor lapse, can be attributed to the failure of human memory.

The learned defence counsel has further submitted that presence of PW-6 Daulat and PW-7 Ismail Khan at the spot of occurrence is highly doubtful as their names do not find mention in the FIR or the rukka Ex.PW1/A. She has further stated that had they been present at the spot of occurrence, complainant Panna Lal would have mentioned their names in his statement which is recorded in rukka Ex.PW1/A. It is true that name of PW-6 Daulat and PW-7 Ismail Khan does not find mention in the rukka Ex. PW1/A. To our minds this by itself will not render the testimony of the witnesses unreliable, particularly when these two witnesses, as per their testimonies, were present near a tea shop, near Akbar Hotel. The incident had taken place in the month of December at about 7.30 P.M. In winters, sun sets quite early and it is dark by 7.00 P. M. Therefore, it is possible that PW-1 Panna Lal who was accompanying the deceased at the time of occurrence might not have noticed the witnesses PW-6 Daulat and PW-7 Ismail Khan standing near Akbar Hotel. This explains non-mention of their names in the rukka. Otherwise also, it is settled law that it is not absolutely necessary that names of all witnesses must figure in the FIR. It depends upon the peculiar facts of the case, as to how much importance is to be given to the omission of names of witnesses in the FIR. If the court, on appreciation of evidence, is satisfied about the trustworthiness of the testimonies of witnesses non-mention of their names in the FIR will not render their testimonies unreliable. On consideration of evidence, we are of the view that PW-6 Daulat and PW-7 Ismail Khan are independent witnesses. Neither of them have any link either with the appellant or the deceased or the father of the deceased to render them as a partisan witness. Therefore, we are of the view that learned trial Judge has rightly relied upon their testimonies.

The learned Counsel has submitted that testimony of PW-9 Kartar Singh regarding dying declaration of his son, to the effect that he was stabbed by the appellant Prem Kumar, is unreliable. Learned Counsel for the appellant has submitted that admittedly PW-9 Kartar Singh accompanied the deceased to the hospital along with Panna Lal, if that was so, under natural course of circumstances such important fact of dying declaration, made by the deceased should have found mention in the rukka Ex. PW-1/A prepared on the basis of statement of Panna Lal in whose presence the dying declaration was made. To our minds the contention of the learned Counsel for the appellant is not acceptable. We cannot lose sight of the fact that PW-1 Panna Lal was an eye witness to the occurrence which he narrated in his statement Ex. PW 1/A, wherein he directly implicated appellant Prem Kumar as assailant. Therefore, he might not have given importance to the fact that deceased also told his father that he was stabbed by the appellant Prem Kumar. Further, under the natural course of circumstances, it is not expected of a father to introduce the name of a third person as a culprit, knowing fully well that such a statement would pave the way for the actual culprit to go scot free. Therefore, we have no hesitation in accepting the testimony of PW-9 Kartar Singh.

The learned Counsel for the appellant also made a feeble attempt at discrediting the evidence of recovery of the dagger Ex. P-9 from the possession of the appellant at the time of his arrest. She has argued that it is highly improbable that the appellant after commission of a serious offence would carry the weapon of offence with him, which obviously has a potential of establishing his culpability. We are not convinced with the aforesaid argument. There can be a number of reasons for the appellant carrying the weapon of offence with him, till he was arrested on the same night. PW-22 SI Harpal Singh has categorically stated that accused was arrested from near his house and on search, the dagger Ex. P-9 was recovered from him. The aforesaid version finds corroboration from the MLC of the accused Ex. PW-23/A. On perusal of the MLC, it transpires that the accused had a linear abrasion (Scratch) on medial aspect of right thigh about 3.5 cm in size. As per the opinion of the doctor concerned, the said abrasion was caused because of sharp trauma. This injury could obviously be caused due to friction of the blade of the dagger on the thigh of the accused. Accused in his statement u/s 313 Cr.PC has tried to explain that injury by stating that aforesaid injury was caused by the nails of the arresting police persons. The said explanation obviously is false because as per testimony of PW-22, SI Harpal Singh, at the time of arrest, accused was wearing pant and a shirt, therefore, the possibility of said injury having been caused by the nails of arresting officer is ruled out. Thus, under the circumstances, we have no reason to suspect recovery of the dagger Ex.P-9 from the possession of the accused.

In view of the discussion above, we are of the view that the learned trial Judge has rightly relied upon the testimony of eye witnesses PW-6 Daulat and PW-7 Ismail Khan which finds corroboration from the testimony of PW-9 Kartar Singh about the dying declaration made by the deceased implicating accused Prem Kumar as a person responsible for his injury and also the recovery of weapon of offence i.e. dagger Ex. P-9 from the possession of the accused and serological report which confirmed that the blood stains on the dagger Ex. P-9 and pant and shirt of the appellant match with blood group of the deceased i.e. group ''O''. Thus, we find no infirmity in the impugned judgment.

The appeal is accordingly dismissed. The appellant, Prem Kumar, is on bail. He is ordered to be taken into custody to undergo the sentence as awarded by the learned Additional Sessions Judge. Period of detention already undergone by appellant, Prem Kumar, shall be set off in terms of Section 428 of Code.