* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 21st July, 2011
Judgment Delivered On: 18th August, 2011
+ CRL.A.135/1999
STATE ..... Petitioner
Through: Mr.Pawan Sharma, Standing
Counsel (Crl.) with Mr.Harsh
Prabhakar, Advocate
versus
DEEPAK DONYAL .....Respondent
Through: Mr.K.B.Andley, Senior Advocate
with Mr.M.L.Yadav, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the
Digest?
PRADEEP NANDRAJOG, J.
1. Criminal law was set into motion on 08.05.1993 at
about 05.30 P.M. when HC Joginder Singh PW-14, recorded
DD No.16, Ex.PW-11/A, that an unknown person had
informed over the telephone of an incident of stabbing by
knife having taken place in front of house bearing Municipal
No.B-25, Sawal Nagar.
2. A copy of Ex.PW-11/A was handed over to Inspector
Ram Kumar PW-11 who accompanied by Ct.Akhilesh Tyagi
Crl.A.No.135/1999 Page 1 of 18
PW-8, went to the place in question where he met Krishan
Kumar PW-1, who informed that his brother Rakesh Kumar
(hereinafter referred to as the “Deceased”) has been
stabbed and removed to the hospital by his neighbours and
that he had witnessed the incident. Inspector Ram Kumar
recorded the statement Ex.PW-11/A of Krishan Kumar and
made an endorsement Ex.PW-11/B thereon, and at around
07.00 P.M. forwarded the same to the police station through
Ct.Akhilesh Tyagi PW-8, for registration of an FIR. Const.
Akhilesh Tyagi took the endorsement Ex.PW-11/B to the
police station and handed over the same to HC Joginder
Singh PW-14, who recorded the FIR No.196/1993, Ex.PW-
8/A, at about 08.00 P.M. on 08.05.1993, as recorded in the
entry Ex.PW-14/C made in the Roznamcha Register.
Simultaneously with the registration of the FIR Ex.PW-8/A
i.e. at about 08.00 P.M. on 08.05.1993 HC Joginder Singh
handed over a copy of the FIR Ex.PW-8/A to Ct.Vinay Kumar
PW-15, to be delivered to the Area Magistrate as recorded in
the entry Ex.PW-15/A made in the Roznamcha Register. At
about 12.05 A.M. on 09.05.1993 Ct.Vinay Kumar returned to
the police station after delivering the copy of the FIR Ex.PW-
8/A at the residence of the Area Magistrate as recorded in
the entry Ex.PW-15/B made in the Roznamcha Register. Be
it noted here that an endorsement is made on the copy of
the FIR Ex.PW-8/A delivered to the Area Magistrate records
that the same was received by the Magistrate at his
residence at about 06.00 A.M. on 09.05.1993.
3. In his statement Ex.PW-11/A, Krishan Kumar stated
that today, at about 04.00 P.M. he along with Shiv Charan,
Crl.A.No.135/1999 Page 2 of 18
Sanjay Kumar and Deepak Dangwal (hereinafter referred to
as the “Accused”) were playing cards in the house of Shiv
Charan, at which time there was an exchange of hot words
between the accused and Sanjay Kumar. At that time his
elder brother i.e. the deceased was lying down on a cot kept
in the house of Shiv Charan. During the course of the
quarrel between the accused and Sanjay Kumar the accused
picked up a pan and tried to hit Sanjay Kumar with the
same, at which time the deceased got up and separated the
accused and Sanjay Kumar from each other. At that time
the accused extended a threat to the deceased that since
he is a well-wisher of Sanjay Kumar he would finish him off
today and left from there. After sometime the accused
returned there with a sword in his hand. The accused
attacked the deceased with the sword upon which the
deceased sustained an injury on the palm of his left hand.
Shiv Charan snatched the sword from the accused
whereupon the accused got angry and again extended a
threat to the deceased and left from there. Thereafter the
deceased went to his house where he got his palm
bandaged from his father. At about 04.45 P.M. the accused
came to the street in front of their house and started
shouting that he would kill the deceased. Thereafter the
deceased came downstairs from his house to the street and
upon seeing the knife in the hand of the accused he ran
from there. When he i.e Krishan Kumar reached downstairs
he saw that the accused was chasing the deceased upon
which he also started running behind them. After running for
a distance of about 40-50 yards the accused caught hold of
Crl.A.No.135/1999 Page 3 of 18
the deceased and inflicted several knife blows on the person
of the deceased in the street in front of Decent Hair Cutting
saloon. The deceased got himself freed from the clutches of
the accused but the accused again got hold of him and
inflicted knife blows on the person of the deceased. He
shouted to save the life of the deceased upon which the
accused ran towards him. He got scared and ran towards
the fields. The deceased was removed to the hospital by the
boys of their neighbourhood. The incident in question was
witnessed by one Suryanayak and some other persons from
his neighbourhood.
4. After registration of the FIR Ex.PW-8/A, Inspector Ram
Kumar PW-11, prepared rough site plan Ex.PW-11/B of the
place of the occurrence and lifted blood lying at the place of
occurrence as also earth control from the place of
occurrence and seized the same vide memo Ex.PW-11/D.
Thereafter Inspector Ram Kumar proceeded to the hospital
where he learnt that the deceased was declared brought
dead at about 06.25 P.M. as recorded in the MLC Ex.PW-
10/A of the deceased.
5. In the meantime, the crime team arrived at the place
of occurrence and inspected the place of occurrence and
prepared the report Ex.PW-11/N at about 08.20 P.M. on
08.05.1993 and relevant would it be to note that the crime
team report has left blank the column pertaining to the FIR
Number in respect whereof the crime team had visited the
spot and also records that the Investigating Officer is
advised to record the statements of the eye witnesses.
Crl.A.No.135/1999 Page 4 of 18
6. Thereafter Inspector Gajinder Singh PW-16, took over
the investigation of the present case.
7. Since Krishan Kumar had indicted the accused i.e. the
respondent as the assailant of the deceased, the police set
out to apprehend him. On 09.05.1993 the police
apprehended him. Upon being interrogated by Inspector
Gajinder Singh PW-16, in the presence of Inspector Ram
Kumar PW-15, the accused made a disclosure statement
Ex.PW-11/E wherein he stated that he can get recovered the
knife used by him for murdering the deceased. Pursuant
thereto, the accused led the aforesaid police officers to a
park and got recovered a knife hidden in the hedges, which
knife was seized by Inspector Gajinder Singh vide memo
Ex.PW-11/F.
8. On the same day i.e. 09.05.1993 the body of the
deceased was sent to the mortuary of AIIMS hospital where
at about 11.30 A.M. Dr.M.S.Sagar PW-9, conducted the post-
mortem of the deceased and prepared the report Ex.PW-9/A.
The post-mortem report Ex.PW-9/A of the deceased records
that following 7 external injuries were found on the person
of the deceased:-
“1. Stitched wound left side of chest in V
intercoastal space 15 cm long curved in shape.
2. Shoe shaped contusion left arm middle
portion lateral aspect & size 8 cm x 3.5 cm.
3. Abrasion right thumb dorsal aspect 1.5 cm x 1
cm & abrasion left glutal & lambosacral region &
size 5 cm x 3 cm.
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4. Stab wound left arm & the labial aspect spleen
21 cm bebra aeromian & 9 cm above elbow joint &
size 27 X 1 cm. Irregular sharp margin inverted and
obliquely placed going medially upward backward
causing a track of 9 cm thigh muscles & going out
at left arm medial aspect size 2.5 cm x 1 cm placed
16 cm above elbow & 14 cm below aeromian.
5. Incised wound left chest placed in anterior
auxillary plane in IV intercoastal space in size 1.2 x
1.4 cm muscle deep spindle shape with clean cut
inverted margin not penetrating into plural cavity
placed 15 cm left of mid line & 16 cm below
clavicular margin.
6. Incised wound left side of chest & 1.5 cm x 1.5
cm with sharp clean cut inverted margin placed
vertically 11 cm left of mid line & 16 cm below
clavicular margin just below left nipple, causing cut
impression on 5th rib, not penetrating into chest
cavity.
7. Stab wound left side of chest placed obliquely
over 6th ICS of size 3 cm x 0.6 cm placed 15 cm left
midline and 22 cm below clavicular margin in
midclavicular plane entering into left pleural cavity
through 6th ICspace causing stab wound of heart as
mentioned above. The direction of the wounds is
medially, upward and forward.”
9. The post-mortem report Ex.PW-9/A of the deceased
further records that the death of the deceased was caused
due to shock as a result of afore-noted ante-mortem injuries
found on the person of the deceased. Injuries Nos.4 to 7
found on the person of the deceased were caused by sharp
edged weapon whereas injuries Nos.2 and 3 were caused by
blunt force. Injury No.7 found on the person of the deceased
was sufficient to cause death in ordinary course of nature.
10. After the post-mortem, the doctor handed over the
clothes and blood sample of the deceased on a gauze to
Crl.A.No.135/1999 Page 6 of 18
Inspector Ram Kumar PW-11, who seized the same vide
memo Ex.PW-11/L.
11. The seized materials; viz. the blood sample and
clothes of the deceased and knife recovered at the instance
of the accused to the Central Forensic Science Laboratory
for serological examination. Vide CFSL reports it was opined
that the blood group of the deceased as A and that human
blood was found on the knife recovered at the instance of
the accused, group whereof could not be determined.
12. During the course of the investigation of the present
case, Inspector Gajinder Singh PW-16, recorded the
statements Ex.PW-2/A, Ex.PW-16/A and Ex.PW-4/A of
Suryanayak, Shiv Charan and Sanjay Kumar respectively,
wherein they stated that they had seen the accused
inflicting several knife blows on the person of the deceased.
13. Needless to state, the accused was sent for trial.
Charge was framed against him for having committed the
offence punishable under Section 302 IPC.
14. At the trial, the prosecution examined 16 witnesses.
15. Krishan Kumar PW-1, deposed on similar lines as the
contents of his statement Ex.PW-11/A. On being questioned
about his return to the place of occurrence the witness
stated: (Quote) „When I returned back to the scene of
occurrence after about 5/7 minutes, I noticed blood lying in
front of the Decent Hair Cutting Saloon‟. On being
questioned about the time of recording of his statement
Ex.PW-11/A the witness stated: (Quote) „The police had
Crl.A.No.135/1999 Page 7 of 18
recorded my statement on the day of the incident at about
05.50 P.M. or 5.55 P.M.‟
16. Suryanayak PW-2, deposed that on 08.05.1993 at
about 04.30 P.M. or 05.00 P.M. he was standing outside his
house when he heard some loud voices coming from the
side of a barber shop which was located near his house
upon which he started proceeding there. Upon reaching
there he saw that the accused was holding a knife in his
hand and chasing the deceased. Thereafter the accused
inflicted several knife blows on the person of the deceased
in front of the barber shop. After sometime the deceased
ran towards the main road to save his life but the accused
managed to catch hold of the deceased and again inflicted
several knife blows on his person. In the meantime the
younger brother of the deceased Krishan Kumar came there
and started crying upon which the accused started chasing
Krishan Kumar. Krishan Kumar ran towards the fields to save
his life. In the meantime the deceased fell on the ground
and was removed to the hospital by some people from the
neighborhood and one Shiv Charan. Thereafter he went to
the house of the brother of the deceased to inform him
about the incident. Shiv Charan and one another person
whose name he does not know were also running behind
Krishan Kumar. On being questioned about his relations with
the deceased the witness stated: (Quote) „My house is
situated very near to the house of the deceased. I know this
family quite well since 1970. I am a frequent visitor in this
house. Similarly, the deceased‟s family used to visit my
house.‟ On being questioned about his conduct at the time
Crl.A.No.135/1999 Page 8 of 18
of the incident of murder of the deceased the witness
stated: (Quote) „I did not intervene when I saw the accused
chasing Rakesh Kumar with his knife in his hand. I did not
extend any help either to save Rakesh Kumar nor made any
endeavor to apprehend the accused. Nor did I raise any
alarm to attract people either to save Rakesh or to
apprehend the accused. I did not make any effort to lift the
injured (since deceased) even after the accused had turned
towards Krishan Kumar….I had not gone to the hospital to
see Rakesh Kumar (deceased).‟
17. Shiv Charan PW-3 and Sanjay PW-4, turned hostile and
did not support the case of the prosecution. The witnesses
denied having given any statements to the police or that
they had seen the accused murdering the deceased.
18. Ct.Vinay Kumar PW-5A/PW-15, was examined by the
prosecution on two occasions, once as PW-5/A and on other
as PW-15. He deposed that he had delivered the copy of the
FIR Ex.PW-8/A to the Area Magistrate at his residence at
about 08.30 P.M. – 08.45 P.M. on 08.05.1993.
19. Inspector Ram Kumar PW-11 and Inspector Gajinder
Singh PW-16, deposed regarding the role played by them in
the investigation of the present case. Be it noted here that
Inspector Ram Kumar PW-11, deposed that he reached the
place of occurrence at about 05.40 P.M. on 08.05.1993. On
being questioned about the visit of the crime team at the
place of occurrence Inspector Ram Kumar stated: (Quote)
„Crime team was called at the site of crime on 8th when I
reached at the site. Crime team came at about 8 or 8-30
Crl.A.No.135/1999 Page 9 of 18
p.m. I do not remember the exact time. It is incorrect that
till arrival of the crime team, no statement of complainant
was recorded nor the case was registered. The crime team
at given their report by about 9-30 p.m. and thereafter, they
went. The report Ex.PW11/N was given by the Crime team.
Q. I suggest it to you that even according to this report no
FIR or statement of the complainant or any statement of eye
witness was recorded till the submission of the report by the
crime.
Ans: The FIR was recorded by that time. There may be an
error in the report of the crime team.‟
20. In his statement under Section 313 Cr.P.C. the accused
denied everything and pleaded false implication.
21. After holding that (i) the testimony of Krishan Kumar
PW-1, is unconvincing because of following reasons; namely,
(a) the conduct of Krishan Kumar of running away from the
place of occurrence and not save his brother i.e. the
deceased from the clutches of the accused makes his
presence at the place of occurrence at the time of the
incident suspect; (b) even if it is believed that Krishan
Kumar ran away from the place of occurrence in order to
protect himself from the accused the conduct of Krishan
Kumar of not returning to the place of occurrence at the
earliest to remove the deceased to the hospital despite
knowing that the deceased was critically injured by the
accused again makes his presence at the place of
occurrence at the time of the incident susceptible; (ii) the
Crl.A.No.135/1999 Page 10 of 18
testimony of Suryanayak PW-2, also does not inspire
confidence for the reason the conduct of Suryanayak of not
even making an effort to save the deceased from the
clutches of the accused despite being on good terms with
the family of the deceased is most unnatural and makes his
presence at the place of occurrence at the time of the
incident susceptible; (iii) entry Ex.PW-15/B made in the
Roznamcha Register recording that Ct.Vinay Kumar returned
to the police station at about 12.05 A.M. on 09.05.1993 after
delivering the copy of the FIR Ex.PW-8/A to the Area
Magistrate runs in teeth of the endorsement made by the
Area Magistrate in the copy of the FIR Ex.PW-8/A delivered
to him that he received the same at his residence at 06.00
A.M. on 09.05.1993 and that the said discrepancy between
the entry Ex.PW-15/B made in the Roznamcha Register and
the copy of the FIR delivered to the Area Magistrate strongly
suggests that the FIR registered in the present case was
ante-timed which turns raises a serious question mark on
the veracity of the case of the prosecution and (iv) mere
recovery of a blood-stained knife at the instance of the
accused is not sufficient to convict the accused particularly
when the group of the blood found on the said knife could
not be ascertained, vide impugned judgment dated
26.07.1997 the learned Trial Judge acquitted the accused.
22. Aggrieved by the impugned judgment dated
26.07.1997 passed by the learned Trial Judge acquitting the
accused of the charge framed against him the State has
obtained Leave to Appeal against the impugned decision.
Crl.A.No.135/1999 Page 11 of 18
23. During the hearing of the present appeal, following 3
submissions were advanced by the learned counsel for the
State:-
A. That the learned Trial Judge committed an illegality in
discarding the evidence of Krishan Kumar PW-1 and
Suryanayak PW-2, merely because the said witnesses did
not come to the rescue of the deceased when he was being
attacked by the accused. Learned counsel for the State
argued that the criminal courts should not expect a set
reaction from any eye-witness on seeing an incident of
murder. Every person who witnesses a murder reacts in his
own way. Some are stunned, become speechless and stand
rooted to the spot. Some become hysteric and start wailing.
Some run away to keep themselves as far away from the
spot as possible. Some rush to the rescue the victim, even
going to the extent of counter-attacking the assailants.
Learned Counsel argued that unless the reaction
demonstrated by an eye-witness is so improbable or so
inconceivable from any human being pitted in such a
situation it is unfair to dub his reactions as unnatural.
Learned counsel further argued that in the instant case
witnesses Krishan Kumar and Suryanayak were unarmed
whereas the accused was armed with a knife. In a situation
like this the instinct of self-preservation can be the
dominant instinct. That being the position, the inaction of
the said witnesses in not coming to the rescue of the
deceased cannot be a ground for discarding their evidence.
Crl.A.No.135/1999 Page 12 of 18
B. That the learned Trial Judge committed an illegality in
discarding the case set up by the prosecution against the
accused on the ground that there was a delay in sending the
copy of the FIR registered in the present case to the
Magistrate. Learned counsel for the State argued that it is
settled legal position that delay in sending the FIR to the
Magistrate is not sufficient for throwing out the entire
prosecution case as being fabricated if the prosecution had
produced reliable evidence to prove the guilt of the
accused.
C. That the learned Trial Judge committed an illegality in
not attaching due importance to the circumstance that
human blood was detected on the knife recovered at the
instance of the accused. Learned counsel for the State
argued that the aforesaid circumstance speaks volumes
about the guilt of the accused particularly when the accused
did not offer any explanation as to how human blood was
detected on the knife recovered at his instance.
24. Before proceeding further, let us note following legal
principles which the appellate courts are required to keep in
mind while adjudicating an appeal against an order of
acquittal:-
I The order of acquittal generally shall not be interfered
with because the presumption of innocence of the accused
is further strengthened by the acquittal of the accused.
II If the reasons which have formed the basis of the
order of the trial court acquitting the accused are
Crl.A.No.135/1999 Page 13 of 18
reasonable and plausible and cannot be entirely and
effectively dislodged or demolished the appellate court
should not interfere with the order of acquittal.
III The appellate court should interfere with the order of
acquittal of the accused only when there are compelling and
substantial reasons to do so.
IV A miscarriage of justice which may arise from acquittal
of the guilty is no less than from the conviction of the
accused.
25. More often than not, FIRs are ante-timed to gain time
to plant eye-witnesses or to provide sufficient time to the
maker of the FIR to enable him spin a false story. The
promptness in registering an FIR lends an assurance to the
truthfulness of the facts stated therein for the reason
anything said spontaneously by a person is presumably the
truth for the reason to create and spin lies the evil mind has
to be put to work and fed on the malice inside, which needs
time.
26. Section 157 of the Code of Criminal Procedure, 1973
requires sending of copy of an FIR to the Magistrate
promptly and without undue delay. The importance of
prompt dispatch of a copy of the FIR to a Magistrate can be
hardly overemphasized. The time at which an FIR is
received by a Magistrate goes a long way in coming to the
conclusion as to the time at which the FIR was registered.
No doubt, the non-compliance of Section 157 does not
constitute a ground to throw away a prosecution case but is
Crl.A.No.135/1999 Page 14 of 18
a factor to be seriously reckoned with while appreciating the
evidence led by the prosecution.
27. Inspector Ram Kumar PW-11 claims to have recorded
the statement Ex.PW-11/A of Krishan Kumar PW-1 and sent
the rukka at 7:00 PM on 8.5.1993 as per the endorsement
Ex.PW-11/B. The FIR purports to be recorded at 8:00 PM as
per Ex.PW-14/C and as per Ex.PW-15/A Ct.Vinay Kumar PW-
5A/PW-15 left the police station around same time to deliver
FIR to the Area Magistrate. Entry Ex.PW-15/B shows
Ct.Vinay Kumar having returned to the police station after
delivering FIR to the Area Magistrate at 5 minutes past 12 in
the midnight.
28. But, the Area Magistrate received the FIR at 6:00 AM
as per the endorsement to be found on Ex.PW-8/A. It
assumes importance that the crime team arrived at the
place of occurrence at 8:20 PM and as per the testimony of
Inspector Ram Kumar PW-11 left at 9:30 PM. The relevant
column in the proforma of the report where FIR Number had
to be recorded was left blank and the crime team advised
the IO to record the statements of the eye witnesses. Now,
the crime team which reached at the spot at 8:20 PM
remained at the spot as per the testimony of Inspector Ram
Kumar till 9:30 PM and it remains a mystery that in the
report of the Crime Team the column pertaining to FIR
number remained blank. The cumulative of the aforesaid
circumstances i.e. FIR being admittedly received by the
Magistrate at 6:00 AM but DD entry 15-B recording that
Ct.Vinay Kumar had returned to the police station at 5
Crl.A.No.135/1999 Page 15 of 18
minutes past 12 in the midnight after delivering copy of the
FIR to the Area Magistrate as also the documentary and oral
evidence pertaining to the report of the Crime Team creates
great suspicion on the time when the FIR was recorded and
there is every possibility of the FIR being ante-timed and
this time being used to plant eye-witnesses.
29. This takes us to deal with the reason predicated upon
the conduct of witnesses Krishan Kumar PW-1 and
Suryanayak PW-2, given by the learned Trial Judge to acquit
the accused.
30. Suryanayak PW-2, deposed that Shiv Charan and
Sanjay Kumar were following Krishan Kumar at the time
when he was running behind the accused who was chasing
the deceased. Shiv Charan and Sanjay Kumar were the
friends of Krishan Kumar and the deceased as evident from
the testimony of Krishan Kumar PW-1. Krishan Kumar and
Suryanayak together with Shiv Charan and Sanjay Kumar
could have overpowered the accused at the time when he
was attacking the deceased and rescued the deceased but
they did not do so. According to Krishan Kumar, the accused
attempted to attack him when he tried to rescue the
deceased due to which he got scared and ran away from the
place of occurrence. One could have understood the
conduct of Krishan Kumar of running away from the place of
occurrence in order to protect himself had he been all alone
with no help from any quarter, which was not the case. If
evidence of Suryanayak PW-2, is to be believed, Krishan
Kumar was surrounded by three well-wishers namely
Crl.A.No.135/1999 Page 16 of 18
Suryanayak, Shiv Charan and Sanjay Kumar at the time
when the accused was attacking the deceased. As regards
Suryanayak PW-2, there was no reason for him to not come
forward to rescue the deceased despite being a well-wisher
of the family of the deceased.
31. The matter can also be looked at from another angle.
The incident in question happened around 05.00 P.M. on
08.05.1993. Inspector Ram Kumar PW-11, was the first
police officer to reach the place of occurrence after
receiving the information of the incident. Inspector Ram
Kumar reached the place of occurrence at about 05.40 P.M.
and allegedly met Krishan Kumar, the younger brother of
the deceased. By that time, the deceased was removed to
the hospital. The natural conduct would be to rush to the
hospital and not stay at the spot to make a statement
before a police officer. We concur with the reasoning of the
learned Trial Judge that the conduct of the two stated eye
witnesses is most unnatural and belies the claim of the two
being eye witnesses.
32. We would be then left with the incriminating evidence
of a knife being recovered at the instance of the respondent
on which human blood was detected.
33. As observed in the decisions reported as Deva Singh
Vs. State of Rajasthan 1999 Cri LJ 265 (SC), Prabhoo Vs.
State of U.P. AIR 1963 SC 1113 and Surjeet Singh Vs. State
of Punjab AIR 1994 SC 110, mere recoveries of a blood
stained knife or an axe and/or recovery of blood stained
clothes stated to be worn by the assailant pursuant to the
Crl.A.No.135/1999 Page 17 of 18
disclosure statement of the assailant, without any further
evidence, are insufficient circumstances leading to a
conclusion on a reasonable hypothesis that the person
concerned is guilty of the offence.
34. The view taken by the learned Trial Judge is a
reasonable probable view and thus we dismiss the appeal.
35. TCR be returned.
(PRADEEP NANDRAJOG)
JUDGE
(P.K.BHASIN)
JUDGE
AUGUST 18, 2011
mm
Crl.A.No.135/1999 Page 18 of 18