* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision 3rd March, 2011.
+ CRL.APPEAL NO.128/1999
KISHAN ......Appellant
Through: Mr. Bhupesh Narula, Amicus-Curiae
Versus
STATE ......Respondent
Through: Mr. Pawan Sharma, Standing
Counsel for State.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the 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 the
Digest?
PRADEEP NANDRAJOG, J.
1. Vide impugned judgment and order dated 20th August
1998, the appellant, Kishan, has been convicted for the
offence of having murdered deceased Prem Chand and for
which offence he has been sentenced to undergo
imprisonment for life and pay fine in sum of ` 1,000/-.
Appellant has also been convicted for an offence punishable
under Section 27 of the Arms Act and for which we find no
sentence imposed upon him.
CLR. A. 128/1999 Page 1 of 6
2. In convicting the appellant, the learned Trial Judge has
relied upon the stated eye witness account of 3 persons;
namely Bihari Lal PW-1, Smt. Meena Kumari PW-7 and Mool
Chand PW-10.
3. Record shows that Mool Chand was with the deceased at
the spot where the assault took place. MLC, Ex. PW2/A,
records that Prem Chand S/o Bihari Lal, aged 34 years, was
brought at the casualty of G.T.B. Hospital by Mool chand at
8.45 p.m. on 2nd September, 1991.
4. Statement Ex.PW10/A made by Mool Chand soon after
the crime which has formed the basis of the F.I.R. and the
endorsement there-under evidences that the rukka was
dispatched at 9.40 p.m. from the spot. D.D.No.20A, Ex.
PW13/A, shows that F.I.R.No.281/1991 was registered at the
Police Station at 9.55 p.m.
5. D.D. No. 18A was recorded at Police Station Nand Nagari
at 8.45 p.m. about somebody being stabbed at the place of the
crime.
6. The fact that the crime took place at around 8.30 p.m.
stands established by D.D.No.18A. Mood Chand‟s presence
with the deceased stands established by the M.L.C. of the
deceased. The rukka and the D.D. entry pertaining to the time
F.I.R. was registered evidences that there was hardly any
scope for Mool Chand to be planted.
7. Even otherwise, we note that Mool Chand would be a
natural witness for the reason the scene of the crime is Public
Street near the house of the deceased and that of Mool Chand.
CLR. A. 128/1999 Page 2 of 6
8. As deposed to by Mool Chand, a fight took place at
around 6.30 – 7.00 p.m. between accused and one Hoshiyara.
Deceased intervened. He separated the two.
9. This appears to be the grudge which the appellant had
against the deceased.
10. As further deposed to by Mool Chand, at around 8.00
p.m. the appellant came and suddenly launched a lethal
assault on the deceased and before the deceased could be
rescued, the appellant ran away. He i.e. Mool Chand removed
the seriously injured deceased to the hospital where he was
declared brought dead.
11. Relevant would be to note that during cross-examination
a suggestion has been put to Mool Chand which he denied, but
the nature of the suggestions is important. It was suggested
to Mool Chand that at the relevant time, he i.e. Mool Chand
was in his house. That he came out when he saw the
appellant quarrelling with the deceased. That Mool Chand had
a knife in his hand which he used to target a blow on the
appellant but in the process caused injury to the deceased.
12. It is apparent from the cross-examination and the
suggestions afore-noted that appellant admits presence of
Mool Chand at the spot.
13. Bihari Lal PW-1, has deposed in sync with PW-10 and we
note that during cross-examination, similar suggestion has
been given by the appellant. The suggestions being that Mool
Chand was armed with a knife and he tried to strike the
CLR. A. 128/1999 Page 3 of 6
accused and instead of hitting the accused, struck a lethal
blow into the body of Prem Chand.
14. Meena Kumari PW-7, the sister of the deceased and wife
of Mool Chand has corroborated the testimony of PW-1 and
PW-10.
15. Nothing has been brought out by learned counsel for the
appellant during arguments to discredit the testimony of PW-1,
PW-7 and PW-10.
16. Noting the line of cross-examination adopted while
putting suggestions to PW-1 and PW-10, we may note that
when examined under Section 313 Cr. P.C., the appellant
never gave any such version. He simply denied everything.
17. We are in agreement with the view taken by the learned
Trial Judge that appellant had inflicted the fatal wounds upon
the person of the deceased.
18. Whether the acts constitute the offence of culpable
homicide not amounting to murder or murder requires us to
have a look at post-mortem report of the deceased and the
testimony of the author thereof Dr.L.T. Ramani PW-5, who
noted 5 injuries on the person of the deceased as under:
“(1) An incised wound 2.5 cms x 2.5 cms x ?
present vertically on the middle of left arm on the
lateral aspect. Lower end of the injury was
actually cut.
(2) An incised wound 1.5 cms x 2.5 cms x ?
vertically placed on the medial aspect of left arm
showing lower end actually cut. Injuries No 1 and
2 were found to be communicating with each-
other.
CLR. A. 128/1999 Page 4 of 6
(3) Incised stab wound 2.3 cms x 1 cm x ?
placed obliquely on the left capular area 2 cms
below and lateral to inferior angle of scapula.
Lower medial end of the injury was actually cut.
(4) Incised wound 2 cms x 1 cm x ? obliquely
placed on the upper outer part of left buttock.
Lower end was actually cut.
(5) An abrasion 1 cm x 0.5 cm on the right
elbow.”
19. The injuries inflicted on the person of the deceased are
indicative of the intention. The injuries show that the
deceased managed to ward of two attacks using his left arm to
defend his torso and he could not do so by the time the third
blow was struck. We further note that it is injury No.3 which
has proved to be fatal; entering the left chest cavity through
the 6th inter costal space the knife cut the lower left lung 3 cms
deep. Total depth of the injury was 7 cms.
20. Keeping in view the testimony of PW-1, PW-7 and PW-10,
it is apparent that nurturing an anger and hatred against the
deceased for having rescued Hoshiyara from the clutches of
the appellant at around 7-7.30 pm, armed with a knife,
appellant returned after about an hour and launched a brutal
attack upon the deceased. The attack is pre-meditated and
keeping in view the injuries inflicted upon the deceased, we
hold that the appellant had the requisite intention to cause
death of the deceased.
21. Ignoring recovery of a knife on which human blood of the
same group that of the deceased was found; recovery being at
the instance of the appellant, and preferring to be guided by
the eye witnesses, we dismiss the appeal.
CLR. A. 128/1999 Page 5 of 6
22. The bail-bond and surety bond, furnished by the
appellant are cancelled. Appellant shall surrender to serve the
remaining sentence.
PRADEEP NANDRAJOG,J
SURESH KAIT, J
MARCH 03, 2011
„acm‟
CLR. A. 128/1999 Page 6 of 6