{"id":170960,"date":"2002-03-15T00:00:00","date_gmt":"2002-03-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ashok-kumar-pandey-vs-state-of-delhi-on-15-march-2002"},"modified":"2017-06-04T05:18:30","modified_gmt":"2017-06-03T23:48:30","slug":"ashok-kumar-pandey-vs-state-of-delhi-on-15-march-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ashok-kumar-pandey-vs-state-of-delhi-on-15-march-2002","title":{"rendered":"Ashok Kumar Pandey vs State Of Delhi on 15 March, 2002"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Ashok Kumar Pandey vs State Of Delhi on 15 March, 2002<\/div>\n<div class=\"doc_author\">Author: B.N.Agrawal<\/div>\n<div class=\"doc_bench\">Bench: M.B. Shah, B.N. Agrawal<\/div>\n<pre>           CASE NO.:\nAppeal (crl.) 874  of  2001\n\n\n\nPETITIONER:\nASHOK KUMAR PANDEY\n\n\tVs.\n\nRESPONDENT:\nSTATE OF DELHI\n\nDATE OF JUDGMENT:\t15\/03\/2002\n\nBENCH:\nM.B. Shah &amp; B.N. Agrawal\n\n\n\n\nJUDGMENT:\n<\/pre>\n<p>B.N.AGRAWAL, J.\n<\/p>\n<p>\tCondemned prisoner has impugned the judgment rendered by the High<br \/>\nCourt of Delhi whereby his conviction under Section  302 of the Penal Code,<br \/>\nrecorded by the trial court, has been  upheld and  sentence of death confirmed,<br \/>\nthe reference having been accepted.\n<\/p>\n<p>\tProsecution case, as unfolded by one Daya Kant Pandey (PW.2) in his<br \/>\nfard beyan, was that the appellant used to consume  liquor habitually and was in<br \/>\nthe habit of getting angry, became wild, incoherent and at times assaulted his<br \/>\nwife deceased Neelam.  He was employed in American Embassy in Chanakaya<br \/>\nPuri and was residing with his wife and one and a half years old daughter on the<br \/>\nfirst floor of house No. B-49, Dabri Extension, Delhi, which had been taken on<br \/>\nrent by him from one Hira Nand (PW 1).\t On 11th September, 1996, which was<br \/>\nthe fateful day, at 4 P.M.,  PW.2  had gone to the house of the appellant to know<br \/>\nabout the welfare of his daughter.  At that time, Sita Ram Pandey, father of the<br \/>\nappellant (DW.1), was also present.  The appellant returned home at about 7.00<br \/>\np.m.  At dinner the appellant consumed liquor.\tAfter dinner PW.2 and DW1 went<br \/>\nto the terrace for sleeping.  After some time at about 9.30 p.m., PW.2 heard<br \/>\nsome noise from downstair.  He thought that the noise was coming from the<br \/>\nportion occupied by the landlord, i.e., the ground floor.  After some time, he heard<br \/>\ncries of his daughter whereupon he immediately rushed down and found that the<br \/>\naccused was inflicting stab wounds on his daughter, Neelam, with a knife while<br \/>\nshe was bleeding profusely.   He also saw his granddaughter Annu lying injured<br \/>\non the ground bleeding.\t The appellant came towards PW.2 in a state of anger<br \/>\nwith knife in his hand and PW.2 retraced his steps.  At this stage, appellant ran<br \/>\ndownstairs.  PW.2 then raised  alarm and the landlord and others  gathered<br \/>\nthere.\tPW.2 and DW.1 took the injured Neelam and Annu to Din Dayal<br \/>\nUpadhaya Hospital, (hereinafter referred to as &#8216;the hospital&#8217;), but they were<br \/>\ndeclared dead when the doctor examined them in the hospital.  Sub Inspector<br \/>\nGanga Ram (PW.7) and Constable Jai Ram (PW 6) were on patrol duty and they<br \/>\nmet Head Constable Suresh Kumar and Constable Hari Om and constable<br \/>\nAshloof Khan (PW 10).  At that time it was noticed by them that the appellant was<br \/>\ncoming from Dabri side holding a knife and on  seeing the police, he tried to flee<br \/>\nbut the police officials apprehended him and the knife was snatched away from<br \/>\nhim. Later on,\tit  revealed that the accused had used that knife to cause death of<br \/>\nhis wife and child.  The Sub Inspector, PW.7, went to the house and found a<br \/>\ncrowd there  where on query he was told\t that the injured Neelam and her child<br \/>\nAnnu had been taken to the hospital by PW.2 and\t DW.1.\tPW.7 gave a<br \/>\ntelephonic message with regard to the crime to the police station.  After leaving<br \/>\nhead constable Suresh Kumar and other police officials for taking care of the<br \/>\nscene of crime and of the accused, he went to hospital.\t There he found that the<br \/>\ndoctor had declared Neelam and Annu to have been brought dead. Stating the<br \/>\naforesaid facts, fard beyan  of Daya Kant Pandey, PW.2, was recorded in the<br \/>\nsame night at 0045 hours and  the same was immediately despatched to the<br \/>\npolice station through constable Jai Ram, PW.6, on the basis of which  case<br \/>\nunder Section 302 of the Penal Code was registered at 0120 hours.   Police after<br \/>\nregistering the case, took up investigation and on completion thereof submitted<br \/>\ncharge sheet whereupon cognizance was taken and the appellant was<br \/>\ncommitted to the court of Session to face trial.\n<\/p>\n<p>\tDefence of the appellant was that he was innocent, had no complicity with<br \/>\nthe crime and had been falsely implicated in the case on hand by the informant<br \/>\nwho did not like him.\tAccording to him, his wife and daughter were sleeping in<br \/>\nthe room whereas he was sleeping with his father on the terrace and during night<br \/>\nupon hearing alarm, they rushed to the room, where his wife told him in an<br \/>\nincoherent voice that they, presumably referring to some assailants, were<br \/>\nrunning away.  Thereupon, the appellant asked his father to take care of his wife<br \/>\nand daughter and he went to  downstairs and raised alarm by which time the<br \/>\nculprits took to their heels.  When  returned after 15-20 minutes, he learnt that his<br \/>\nwife and daughter had been taken to the hospital by his father and he gave<br \/>\ninformation to the employer of his father-in-law  on telephone asking him to<br \/>\nconvey the message to the latter who was residing in Ghaziabad.\t Thereafter, the<br \/>\nappellant rushed to the police station to lodge the first information report where<br \/>\nhe was arrested\t by the police and whereafter  the informant arrived the hospital<br \/>\nafter two to three hours from Ghaziabad blaming the appellant for the murder.\n<\/p>\n<p>\tDuring trial, the prosecution examined ten witnesses, out of whom, Hira<br \/>\nNand, PW.1, is the landlord, Daya Kant Pandey, PW.2, is the informant, father-<br \/>\nin-law of the appellant.   Dr. Rakesh Bhardwaj, PW.5, and Dr. Kamal Singh,<br \/>\nPW.8, are the doctors out of whom PW.8\theld postmortem examination on the<br \/>\ndead bodies of the two victims.\t Vijay Kumar, PW.9, is a formal witness who has<br \/>\ntaken photographs of the place of occurrence and others are police witnesses.<br \/>\nThe accused, however, examined his father Sita Ram Pandey as DW.1. Upon<br \/>\nconclusion of  trial, the appellant was convicted, as stated above, and the same<br \/>\nhaving been confirmed by the  High Court, the present appeal by Special Leave.\n<\/p>\n<p>\tMr. Ashok Arora, learned counsel appearing on behalf of the appellant in<br \/>\nsupport of the appeal submitted that the High Court was not justified in upholding<br \/>\nconviction of the appellant as there was  inordinate delay in lodging the first<br \/>\ninformation report as well as  its despatch to\tand receipt by the Court.  Learned<br \/>\ncounsel further submitted that no steps were taken by the informant to inform the<br \/>\npolice and instead of informing the police, he rushed to the hospital.\tLearned<br \/>\ncounsel also submitted that no reliance should have been placed upon the<br \/>\nsolitary testimony of the informant, Daya Kant Pandey, PW.2, who was  solitary<br \/>\neye witness and being father of the victim, was a highly interested witness.<br \/>\nLastly, learned counsel submitted that in any view of the matter, it was   not a<br \/>\ncase where the extreme penalty of death was called for as the same did\tnot fall<br \/>\nwithin the category of rarest of rare cases.  On the other hand, Mr. B.A.Mohanty,<br \/>\nlearned senior counsel appearing on behalf of the State, submitted that the first<br \/>\ninformation report was lodged immediately, its copy was sent to the court with<br \/>\nutmost expedition and the evidence of  PW.2 was rightly relied upon as the same<br \/>\nwas quite consistent as well as\t corroborated by other evidence, including<br \/>\nmedical evidence and objective finding of the police, as such the High Court was<br \/>\nquite justified in upholding the imposition of death penalty.\n<\/p>\n<p>\tFirst, we proceed to consider medical evidence.\t Dr. Kamal Singh, PW.8,<br \/>\nwho was posted as Medical Officer at Din Dayal Upadhyay Hospital, conducted<br \/>\npostmortem examination on 11th September, 1996 on the dead body of Neelam,<br \/>\nwife of the appellant,\tat 2300 hours and on that of Annu, daughter of the<br \/>\nappellant, at 2305 hours.  The postmortem examination was conducted within<br \/>\none and half hours of the time of the alleged occurrence and doctor found injuries<br \/>\non the vital parts like heart, liver, lungs and abdominal cavity, which were caused<br \/>\nby dagger and both the injured succumbed to their injuries inasmuch as\tdeath<br \/>\ncould not have been averted.  When the dagger, which was recovered from the<br \/>\naccused, was produced in court and shown to the doctor for ascertaining as to<br \/>\nwhether the injuries could be inflicted by the same to deceased persons,  he<br \/>\nspecifically stated, after seeing the same, that the injuries sustained by both the<br \/>\ndeceased could be possible by the said weapon.\t  Thus, the postmortem report<br \/>\nsupports the prosecution case that both the deceased received injuries by<br \/>\ndagger on vital parts of their bodies and succumbed to the same.\n<\/p>\n<p>Positive findings of the investigating officer also support the prosecution<br \/>\ncase.  The investigating officer  found one quarter bottle of Aristocrat liquor lying<br \/>\nempty near the Almirah in the room in which the incident is said to have taken<br \/>\nplace.\t He seized blood stained earth from the place of occurrence and\t a blood<br \/>\nstained dhoti belonging to the appellant.  The blood stained earth, dhoti and<br \/>\ndagger seized from the appellant apart from the blood stained clothes which the<br \/>\ndeceased persons were wearing were sent to the chemical examiner who<br \/>\nreported that the same contained human blood  and its group was &#8216;A&#8217; which was<br \/>\nblood group of the two deceased persons. Thus, objective finding of the<br \/>\ninvestigating officer and the report of the chemical examiner go to show<br \/>\ncomplicity of the appellant with the crime.\n<\/p>\n<p>It has been submitted on behalf of the appellant that there was inordinate<br \/>\ndelay in lodging the first information report, as the occurrence is said to have<br \/>\ntaken place at 2130 hours on 11th of September, 1996,  the formal first<br \/>\ninformation report was registered on 12th September, 1996 at 0120 hours,<br \/>\ninasmuch as no steps were taken by the informant for lodging the first<br \/>\ninformation report before the police arrived the hospital.  In our view, at the time<br \/>\nPW.2 and  DW.1, on hulla, came to the room of the victim and after  the appellant<br \/>\nfled away with blood stained dagger in his hand,  seeing  condition of the injured,<br \/>\nthey immediately rushed them  to the hospital hoping against hope that they may<br \/>\nsurvive where the doctor declared them brought dead.  It is natural conduct of a<br \/>\nnormal human  being to rush with  injured persons to the hospital more so when<br \/>\nthey are so near and dear ones like daughter and granddaughter instead of<br \/>\nleaving them at the place of occurrence to die and go to  the police station to give<br \/>\ninformation  about the occurrence.  Therefore, no adverse inference can be<br \/>\ndrawn against the prosecution as the informant did not go to the police station to<br \/>\nlodge the first information report rather rushed to the hospital with the deceased<br \/>\npersons to save their lives.  Further,\tit cannot be said that there was any delay at<br \/>\nall in lodging the first information report much less inordinate one, as the incident<br \/>\nis said to have taken place on 11th September, 1996 at 2130 hours, fard beyan<br \/>\nwas recorded in the hospital at 0045 hours in the same night and despatched to<br \/>\nthe police station through special messenger where formal first information report<br \/>\nwas drawn at 0120 hours in the fateful night itself.\n<\/p>\n<p>Learned counsel\t further submitted that there was inordinate delay in<br \/>\ndespatch of  the first information report to Court and its receipt there which<br \/>\nmakes the prosecution case highly suspicious and doubtful.  It may be stated that<br \/>\nthe fard beyan of the informant was recorded in the midnight of 11th\/12th<br \/>\nSeptember, 1996 at 0045 hours, despatched to the police station immediately  on<br \/>\nthe basis whereof, first information report was drawn up at 0120 hours\tand the<br \/>\nsame was despatched to the court through  special messenger which was<br \/>\nreceived by the learned Magistrate in the morning at 0730 hours on  12th<br \/>\nSeptember, 1996.  In our view, in the present case, there was no delay at all<br \/>\neither in its  despatch to or  receipt by the Court.  In our view, even in cases<br \/>\nwhere there is some delay in despatch of the first information report to court and<br \/>\nits receipt by it, that alone can in no case be taken to be a ground for throwing<br \/>\nout the prosecution case if otherwise the same is proved by unimpeachable<br \/>\nevidence.  However, in cases where  court  otherwise  doubts veracity of the<br \/>\nprosecution case, this may be taken to be one of the grounds to\t discard the<br \/>\nsame.\n<\/p>\n<p>Now, we consider  ocular version of the occurrence as disclosed by<br \/>\nsolitary eye witness, Daya Kant Pandey, PW.2, who is nobody else than  father<br \/>\nof one of the victims and father-in-law of the appellant.  In his evidence in Court,<br \/>\nhe has supported the case, disclosed in the first information report, that when he<br \/>\nalong with father of the appellant had gone to terrace of the house for sleeping,<br \/>\non hearing  the cries of his daughter, went outside the room, found the same<br \/>\nlocked from inside, opened it by giving a kick\tand found that the appellant was<br \/>\ninflicting knife blows upon his daughter Neelam and Annu, his daughter&#8217;s<br \/>\ndaughter,    was lying in the room on the ground in a pool of blood.  When this<br \/>\nwitness shouted in horror, the appellant came towards him with a knife and this<br \/>\nwitness moved aside and started crying loudly whereupon the accused took to<br \/>\nhis heels.  In the meantime, Sita Ram Pandey, DW.1, father of the appellant, also<br \/>\ncame there from the terrace and landlord Hira Nand,  PW.1, arrived first floor of<br \/>\nthe house. The witness stated that with the help of father of the appellant, DW.1<br \/>\nand the landlord, PW.1, the injured persons were brought to the ground floor and<br \/>\na three wheeler was hired in which  this witness and  DW.1 took the injured<br \/>\npersons to the hospital where the doctor declared them brought dead.  He further<br \/>\nstated that the police went to the hospital and recorded his fard beyan there.<br \/>\nThereafter he went to the police station and from there to the place of<br \/>\noccurrence.  This witness has consistently supported the prosecution case.  It<br \/>\nhas been pointed out on behalf of the appellant that when the witness had seen<br \/>\nthat the appellant was inflicting injury upon his daughter, he did not take any<br \/>\nsteps to rescue her which is not  natural conduct of a human being, especially<br \/>\nwhen he is father of the deceased and the same shows that this witness was<br \/>\nnever present at the place of occurrence, had never seen any occurrence and<br \/>\narrived the hospital after having received the information at Ghaziabad where he<br \/>\nwas residing.  It appears that before the witness arrived the appellant had<br \/>\ninflicted injuries on different parts of the body of his daughter who was lying on<br \/>\nground in a pool of blood and when  he\tarrived on hearing the cries of his<br \/>\ndaughter,  the appellant was found giving indiscriminate dagger blows to Neelam,<br \/>\ndaughter of this witness, on different parts of her body and when this witness<br \/>\nprotested, he ran towards him.\t In these circumstances, it cannot be said to be<br \/>\nunnatural if he could not take any steps to save life of his daughter as he being<br \/>\nunarmed, as an ordinary normal human being, could not have taken risk to his<br \/>\nlife at the hands of the appellant which was so imminent.  It was pointed out  that<br \/>\nno reliance should have been placed upon the evidence of  PW.2, the solitary<br \/>\ninterested eye witness, as he being father of the deceased lady and grandfather<br \/>\nof the\tdeceased child, chances of false implication of the appellant, who was not<br \/>\nliked by this witness, could not be ruled out. It is well settled that\tevidence of a<br \/>\nwitness cannot be discarded merely on the ground that he is either partisan or<br \/>\ninterested or both, if otherwise the same is found to be credible.  Reference in<br \/>\nthis connection may be made to the decisions of this Court in the cases of<br \/>\n<a href=\"\/doc\/1420504\/\">Rameshwar vs. State of Rajasthan, AIR<\/a> 1952 SC 54, <a href=\"\/doc\/770422\/\">Dalip Singh and ors. v.<br \/>\nThe State of Punjab, AIR<\/a> 1953 SC 364, <a href=\"\/doc\/406841\/\">Vadivelu Thevar v. The State of<br \/>\nMadras, AIR<\/a> 1957 SC 614, Masalti v. The State of Uttar Pradesh, AIR 1965<br \/>\nSC 202,\t <a href=\"\/doc\/313314\/\">State of Punjab v. Jagir Singh, Baljit Singh and Karam Singh, AIR<\/a><br \/>\n1973 SC 2407, and  <a href=\"\/doc\/674898\/\">Guli Chand and ors. v. State of Rajasthan, AIR<\/a> 1974 SC<br \/>\n276,.  The evidence of this witness is corroborated by the statement of the<br \/>\nlandlord who had been examined in this case as PW .1 and was residing in the<br \/>\nground floor of the house.  By the time\t PW.1 arrived the room, upon hearing the<br \/>\nhulla,\the found that  PW.2 was carrying his daughter and  DW.1 was carrying his<br \/>\ngranddaughter, who were besmeared with blood, and brought them to the ground<br \/>\nfloor from where they took both of them to the hospital on a three wheeler.  The<br \/>\nstatement of  PW.1 is consistent and there is nothing to doubt his testimony.<br \/>\nThus, we find that the evidence of Daya Kant Pandey, PW.2, who is solitary eye<br \/>\nwitness, is consistent and his presence at the place of occurrence on the fateful<br \/>\nnight cannot be doubted inasmuch as  his evidence is corroborated  by the<br \/>\nstatement of  PW.1, besides the medical evidence, the positive finding of<br \/>\ninvestigating officer and finding of blood group belonging to the deceased<br \/>\npersons upon the blood stained earth taken from the place of occurrence, the<br \/>\nblood stained dhoti belonging to the appellant, blood stained clothes of the<br \/>\nvictims and the blood stained dagger from which injuries were inflicted.  Further,<br \/>\nthe circumstances that the victims were removed to the hospital immediately<br \/>\nwhere they were declared brought dead, postmortem examination was<br \/>\nconducted within one and half hours of the occurrence and first information report<br \/>\nwas recorded with utmost expedition also go to show that PW.2 was a quite<br \/>\nreliable witness.  This being the position,  merely because PW.2  was an<br \/>\ninterested witness, it is not possible to reject his evidence.\tFrom these facts, it<br \/>\nbecomes clear that the prosecution has succeeded in proving its case beyond<br \/>\nreasonable doubts and the High Court was quite justified in upholding  conviction<br \/>\nof the appellant.\n<\/p>\n<p>Now, we come to the question as to whether it is a fit case in which<br \/>\nextreme penalty of death was called for.  Reference in this connection may be<br \/>\nmade to the Constitution Bench decision of this Court in the case of Bachan<br \/>\nSingh v. State of Punjab, AIR 1980 SC 898, as well as, following the same, 3-<br \/>\nJudge Bench decision of this Court in <a href=\"\/doc\/545301\/\">Machhi Singh &amp; Ors. v. State of Punjab,<\/a><br \/>\n1983 (3) SCC 470, wherein various circumstances have been enumerated and it<br \/>\nwas laid down that if the case squarely falls within its ambit, only in that<br \/>\neventuality, death penalty can be awarded.  It was observed that in rarest of rare<br \/>\ncases when collective conscience of the community is so shocked that it will<br \/>\nexpect the holders of the judicial power centre to inflict death penalty irrespective<br \/>\nof their personal opinion as regards desirability or otherwise retaining death<br \/>\npenalty, such a penalty can be inflicted.  In the facts and circumstances of the<br \/>\npresent case, it is not possible to come to the conclusion that the present case<br \/>\nwould fall within the category of rarest of rare one.  Therefore, we are clearly of<br \/>\nthe opinion that in the fitness of things,  extreme penalty of death  was not called<br \/>\nfor and the same is fit to be  commuted to life imprisonment.\n<\/p>\n<p>    In the result, the appeal is allowed in part and while upholding<br \/>\nconviction of the appellant, the sentence of death awarded against him is<br \/>\ncommuted to rigorous imprisonment for life.\n<\/p>\n<p>\t\t\t\t\t\t\t.J.\n<\/p>\n<p>\t\t\t\t\t\t\t[ M.B.SHAH ]<\/p>\n<p>\t\t\t\t\t\t\tJ.\n<\/p>\n<p>\t\t\t\t\t\t\t[ B.N.AGRAWAL ]<\/p>\n<p>March 15, 2002.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India Ashok Kumar Pandey vs State Of Delhi on 15 March, 2002 Author: B.N.Agrawal Bench: M.B. Shah, B.N. Agrawal 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 &amp; B.N. Agrawal JUDGMENT: B.N.AGRAWAL, J. Condemned prisoner has impugned [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-170960","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Ashok Kumar Pandey vs State Of Delhi on 15 March, 2002 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ashok-kumar-pandey-vs-state-of-delhi-on-15-march-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ashok Kumar Pandey vs State Of Delhi on 15 March, 2002 - Free Judgements of Supreme Court &amp; 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