CASE NO.: Appeal (crl.) 874 of 2001 PETITIONER: ASHOK KUMAR PANDEY Vs. RESPONDENT: STATE OF DELHI DATE OF JUDGMENT: 15/03/2002 BENCH: M.B. Shah & B.N. Agrawal JUDGMENT:
B.N.AGRAWAL, J.
Condemned prisoner has impugned the judgment rendered by the High
Court of Delhi whereby his conviction under Section 302 of the Penal Code,
recorded by the trial court, has been upheld and sentence of death confirmed,
the reference having been accepted.
Prosecution case, as unfolded by one Daya Kant Pandey (PW.2) in his
fard beyan, was that the appellant used to consume liquor habitually and was in
the habit of getting angry, became wild, incoherent and at times assaulted his
wife deceased Neelam. He was employed in American Embassy in Chanakaya
Puri and was residing with his wife and one and a half years old daughter on the
first floor of house No. B-49, Dabri Extension, Delhi, which had been taken on
rent by him from one Hira Nand (PW 1). On 11th September, 1996, which was
the fateful day, at 4 P.M., PW.2 had gone to the house of the appellant to know
about the welfare of his daughter. At that time, Sita Ram Pandey, father of the
appellant (DW.1), was also present. The appellant returned home at about 7.00
p.m. At dinner the appellant consumed liquor. After dinner PW.2 and DW1 went
to the terrace for sleeping. After some time at about 9.30 p.m., PW.2 heard
some noise from downstair. He thought that the noise was coming from the
portion occupied by the landlord, i.e., the ground floor. After some time, he heard
cries of his daughter whereupon he immediately rushed down and found that the
accused was inflicting stab wounds on his daughter, Neelam, with a knife while
she was bleeding profusely. He also saw his granddaughter Annu lying injured
on the ground bleeding. The appellant came towards PW.2 in a state of anger
with knife in his hand and PW.2 retraced his steps. At this stage, appellant ran
downstairs. PW.2 then raised alarm and the landlord and others gathered
there. PW.2 and DW.1 took the injured Neelam and Annu to Din Dayal
Upadhaya Hospital, (hereinafter referred to as ‘the hospital’), but they were
declared dead when the doctor examined them in the hospital. Sub Inspector
Ganga Ram (PW.7) and Constable Jai Ram (PW 6) were on patrol duty and they
met Head Constable Suresh Kumar and Constable Hari Om and constable
Ashloof Khan (PW 10). At that time it was noticed by them that the appellant was
coming from Dabri side holding a knife and on seeing the police, he tried to flee
but the police officials apprehended him and the knife was snatched away from
him. Later on, it revealed that the accused had used that knife to cause death of
his wife and child. The Sub Inspector, PW.7, went to the house and found a
crowd there where on query he was told that the injured Neelam and her child
Annu had been taken to the hospital by PW.2 and DW.1. PW.7 gave a
telephonic message with regard to the crime to the police station. After leaving
head constable Suresh Kumar and other police officials for taking care of the
scene of crime and of the accused, he went to hospital. There he found that the
doctor had declared Neelam and Annu to have been brought dead. Stating the
aforesaid facts, fard beyan of Daya Kant Pandey, PW.2, was recorded in the
same night at 0045 hours and the same was immediately despatched to the
police station through constable Jai Ram, PW.6, on the basis of which case
under Section 302 of the Penal Code was registered at 0120 hours. Police after
registering the case, took up investigation and on completion thereof submitted
charge sheet whereupon cognizance was taken and the appellant was
committed to the court of Session to face trial.
Defence of the appellant was that he was innocent, had no complicity with
the crime and had been falsely implicated in the case on hand by the informant
who did not like him. According to him, his wife and daughter were sleeping in
the room whereas he was sleeping with his father on the terrace and during night
upon hearing alarm, they rushed to the room, where his wife told him in an
incoherent voice that they, presumably referring to some assailants, were
running away. Thereupon, the appellant asked his father to take care of his wife
and daughter and he went to downstairs and raised alarm by which time the
culprits took to their heels. When returned after 15-20 minutes, he learnt that his
wife and daughter had been taken to the hospital by his father and he gave
information to the employer of his father-in-law on telephone asking him to
convey the message to the latter who was residing in Ghaziabad. Thereafter, the
appellant rushed to the police station to lodge the first information report where
he was arrested by the police and whereafter the informant arrived the hospital
after two to three hours from Ghaziabad blaming the appellant for the murder.
During trial, the prosecution examined ten witnesses, out of whom, Hira
Nand, PW.1, is the landlord, Daya Kant Pandey, PW.2, is the informant, father-
in-law of the appellant. Dr. Rakesh Bhardwaj, PW.5, and Dr. Kamal Singh,
PW.8, are the doctors out of whom PW.8 held postmortem examination on the
dead bodies of the two victims. Vijay Kumar, PW.9, is a formal witness who has
taken photographs of the place of occurrence and others are police witnesses.
The accused, however, examined his father Sita Ram Pandey as DW.1. Upon
conclusion of trial, the appellant was convicted, as stated above, and the same
having been confirmed by the High Court, the present appeal by Special Leave.
Mr. Ashok Arora, learned counsel appearing on behalf of the appellant in
support of the appeal submitted that the High Court was not justified in upholding
conviction of the appellant as there was inordinate delay in lodging the first
information report as well as its despatch to and receipt by the Court. Learned
counsel further submitted that no steps were taken by the informant to inform the
police and instead of informing the police, he rushed to the hospital. Learned
counsel also submitted that no reliance should have been placed upon the
solitary testimony of the informant, Daya Kant Pandey, PW.2, who was solitary
eye witness and being father of the victim, was a highly interested witness.
Lastly, learned counsel submitted that in any view of the matter, it was not a
case where the extreme penalty of death was called for as the same did not fall
within the category of rarest of rare cases. On the other hand, Mr. B.A.Mohanty,
learned senior counsel appearing on behalf of the State, submitted that the first
information report was lodged immediately, its copy was sent to the court with
utmost expedition and the evidence of PW.2 was rightly relied upon as the same
was quite consistent as well as corroborated by other evidence, including
medical evidence and objective finding of the police, as such the High Court was
quite justified in upholding the imposition of death penalty.
First, we proceed to consider medical evidence. Dr. Kamal Singh, PW.8,
who was posted as Medical Officer at Din Dayal Upadhyay Hospital, conducted
postmortem examination on 11th September, 1996 on the dead body of Neelam,
wife of the appellant, at 2300 hours and on that of Annu, daughter of the
appellant, at 2305 hours. The postmortem examination was conducted within
one and half hours of the time of the alleged occurrence and doctor found injuries
on the vital parts like heart, liver, lungs and abdominal cavity, which were caused
by dagger and both the injured succumbed to their injuries inasmuch as death
could not have been averted. When the dagger, which was recovered from the
accused, was produced in court and shown to the doctor for ascertaining as to
whether the injuries could be inflicted by the same to deceased persons, he
specifically stated, after seeing the same, that the injuries sustained by both the
deceased could be possible by the said weapon. Thus, the postmortem report
supports the prosecution case that both the deceased received injuries by
dagger on vital parts of their bodies and succumbed to the same.
Positive findings of the investigating officer also support the prosecution
case. The investigating officer found one quarter bottle of Aristocrat liquor lying
empty near the Almirah in the room in which the incident is said to have taken
place. He seized blood stained earth from the place of occurrence and a blood
stained dhoti belonging to the appellant. The blood stained earth, dhoti and
dagger seized from the appellant apart from the blood stained clothes which the
deceased persons were wearing were sent to the chemical examiner who
reported that the same contained human blood and its group was ‘A’ which was
blood group of the two deceased persons. Thus, objective finding of the
investigating officer and the report of the chemical examiner go to show
complicity of the appellant with the crime.
It has been submitted on behalf of the appellant that there was inordinate
delay in lodging the first information report, as the occurrence is said to have
taken place at 2130 hours on 11th of September, 1996, the formal first
information report was registered on 12th September, 1996 at 0120 hours,
inasmuch as no steps were taken by the informant for lodging the first
information report before the police arrived the hospital. In our view, at the time
PW.2 and DW.1, on hulla, came to the room of the victim and after the appellant
fled away with blood stained dagger in his hand, seeing condition of the injured,
they immediately rushed them to the hospital hoping against hope that they may
survive where the doctor declared them brought dead. It is natural conduct of a
normal human being to rush with injured persons to the hospital more so when
they are so near and dear ones like daughter and granddaughter instead of
leaving them at the place of occurrence to die and go to the police station to give
information about the occurrence. Therefore, no adverse inference can be
drawn against the prosecution as the informant did not go to the police station to
lodge the first information report rather rushed to the hospital with the deceased
persons to save their lives. Further, it cannot be said that there was any delay at
all in lodging the first information report much less inordinate one, as the incident
is said to have taken place on 11th September, 1996 at 2130 hours, fard beyan
was recorded in the hospital at 0045 hours in the same night and despatched to
the police station through special messenger where formal first information report
was drawn at 0120 hours in the fateful night itself.
Learned counsel further submitted that there was inordinate delay in
despatch of the first information report to Court and its receipt there which
makes the prosecution case highly suspicious and doubtful. It may be stated that
the fard beyan of the informant was recorded in the midnight of 11th/12th
September, 1996 at 0045 hours, despatched to the police station immediately on
the basis whereof, first information report was drawn up at 0120 hours and the
same was despatched to the court through special messenger which was
received by the learned Magistrate in the morning at 0730 hours on 12th
September, 1996. In our view, in the present case, there was no delay at all
either in its despatch to or receipt by the Court. In our view, even in cases
where there is some delay in despatch of the first information report to court and
its receipt by it, that alone can in no case be taken to be a ground for throwing
out the prosecution case if otherwise the same is proved by unimpeachable
evidence. However, in cases where court otherwise doubts veracity of the
prosecution case, this may be taken to be one of the grounds to discard the
same.
Now, we consider ocular version of the occurrence as disclosed by
solitary eye witness, Daya Kant Pandey, PW.2, who is nobody else than father
of one of the victims and father-in-law of the appellant. In his evidence in Court,
he has supported the case, disclosed in the first information report, that when he
along with father of the appellant had gone to terrace of the house for sleeping,
on hearing the cries of his daughter, went outside the room, found the same
locked from inside, opened it by giving a kick and found that the appellant was
inflicting knife blows upon his daughter Neelam and Annu, his daughter’s
daughter, was lying in the room on the ground in a pool of blood. When this
witness shouted in horror, the appellant came towards him with a knife and this
witness moved aside and started crying loudly whereupon the accused took to
his heels. In the meantime, Sita Ram Pandey, DW.1, father of the appellant, also
came there from the terrace and landlord Hira Nand, PW.1, arrived first floor of
the house. The witness stated that with the help of father of the appellant, DW.1
and the landlord, PW.1, the injured persons were brought to the ground floor and
a three wheeler was hired in which this witness and DW.1 took the injured
persons to the hospital where the doctor declared them brought dead. He further
stated that the police went to the hospital and recorded his fard beyan there.
Thereafter he went to the police station and from there to the place of
occurrence. This witness has consistently supported the prosecution case. It
has been pointed out on behalf of the appellant that when the witness had seen
that the appellant was inflicting injury upon his daughter, he did not take any
steps to rescue her which is not natural conduct of a human being, especially
when he is father of the deceased and the same shows that this witness was
never present at the place of occurrence, had never seen any occurrence and
arrived the hospital after having received the information at Ghaziabad where he
was residing. It appears that before the witness arrived the appellant had
inflicted injuries on different parts of the body of his daughter who was lying on
ground in a pool of blood and when he arrived on hearing the cries of his
daughter, the appellant was found giving indiscriminate dagger blows to Neelam,
daughter of this witness, on different parts of her body and when this witness
protested, he ran towards him. In these circumstances, it cannot be said to be
unnatural if he could not take any steps to save life of his daughter as he being
unarmed, as an ordinary normal human being, could not have taken risk to his
life at the hands of the appellant which was so imminent. It was pointed out that
no reliance should have been placed upon the evidence of PW.2, the solitary
interested eye witness, as he being father of the deceased lady and grandfather
of the deceased child, chances of false implication of the appellant, who was not
liked by this witness, could not be ruled out. It is well settled that evidence of a
witness cannot be discarded merely on the ground that he is either partisan or
interested or both, if otherwise the same is found to be credible. Reference in
this connection may be made to the decisions of this Court in the cases of
Rameshwar vs. State of Rajasthan, AIR 1952 SC 54, Dalip Singh and ors. v.
The State of Punjab, AIR 1953 SC 364, Vadivelu Thevar v. The State of
Madras, AIR 1957 SC 614, Masalti v. The State of Uttar Pradesh, AIR 1965
SC 202, State of Punjab v. Jagir Singh, Baljit Singh and Karam Singh, AIR
1973 SC 2407, and Guli Chand and ors. v. State of Rajasthan, AIR 1974 SC
276,. The evidence of this witness is corroborated by the statement of the
landlord who had been examined in this case as PW .1 and was residing in the
ground floor of the house. By the time PW.1 arrived the room, upon hearing the
hulla, he found that PW.2 was carrying his daughter and DW.1 was carrying his
granddaughter, who were besmeared with blood, and brought them to the ground
floor from where they took both of them to the hospital on a three wheeler. The
statement of PW.1 is consistent and there is nothing to doubt his testimony.
Thus, we find that the evidence of Daya Kant Pandey, PW.2, who is solitary eye
witness, is consistent and his presence at the place of occurrence on the fateful
night cannot be doubted inasmuch as his evidence is corroborated by the
statement of PW.1, besides the medical evidence, the positive finding of
investigating officer and finding of blood group belonging to the deceased
persons upon the blood stained earth taken from the place of occurrence, the
blood stained dhoti belonging to the appellant, blood stained clothes of the
victims and the blood stained dagger from which injuries were inflicted. Further,
the circumstances that the victims were removed to the hospital immediately
where they were declared brought dead, postmortem examination was
conducted within one and half hours of the occurrence and first information report
was recorded with utmost expedition also go to show that PW.2 was a quite
reliable witness. This being the position, merely because PW.2 was an
interested witness, it is not possible to reject his evidence. From these facts, it
becomes clear that the prosecution has succeeded in proving its case beyond
reasonable doubts and the High Court was quite justified in upholding conviction
of the appellant.
Now, we come to the question as to whether it is a fit case in which
extreme penalty of death was called for. Reference in this connection may be
made to the Constitution Bench decision of this Court in the case of Bachan
Singh v. State of Punjab, AIR 1980 SC 898, as well as, following the same, 3-
Judge Bench decision of this Court in Machhi Singh & Ors. v. State of Punjab,
1983 (3) SCC 470, wherein various circumstances have been enumerated and it
was laid down that if the case squarely falls within its ambit, only in that
eventuality, death penalty can be awarded. It was observed that in rarest of rare
cases when collective conscience of the community is so shocked that it will
expect the holders of the judicial power centre to inflict death penalty irrespective
of their personal opinion as regards desirability or otherwise retaining death
penalty, such a penalty can be inflicted. In the facts and circumstances of the
present case, it is not possible to come to the conclusion that the present case
would fall within the category of rarest of rare one. Therefore, we are clearly of
the opinion that in the fitness of things, extreme penalty of death was not called
for and the same is fit to be commuted to life imprisonment.
In the result, the appeal is allowed in part and while upholding
conviction of the appellant, the sentence of death awarded against him is
commuted to rigorous imprisonment for life.
.J.
[ M.B.SHAH ]
J.
[ B.N.AGRAWAL ]
March 15, 2002.