{"id":191099,"date":"2011-08-18T00:00:00","date_gmt":"2011-08-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-deepak-donyal-on-18-august-2011"},"modified":"2017-08-15T16:04:08","modified_gmt":"2017-08-15T10:34:08","slug":"state-vs-deepak-donyal-on-18-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-deepak-donyal-on-18-august-2011","title":{"rendered":"State vs Deepak Donyal on 18 August, 2011"},"content":{"rendered":"<div class=\"docsource_main\">Delhi High Court<\/div>\n<div class=\"doc_title\">State vs Deepak Donyal on 18 August, 2011<\/div>\n<div class=\"doc_author\">Author: Pradeep Nandrajog<\/div>\n<pre> *      IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                   Judgment Reserved On: 21st July, 2011\n                    Judgment Delivered On: 18th August, 2011\n\n+                        CRL.A.135\/1999\n\n        STATE                                  ..... Petitioner\n                    Through:   Mr.Pawan    Sharma,      Standing\n                               Counsel (Crl.) with Mr.Harsh\n                               Prabhakar, Advocate\n\n                               versus\n\n        DEEPAK DONYAL                          .....Respondent\n                 Through:      Mr.K.B.Andley, Senior Advocate\n                               with Mr.M.L.Yadav, Advocate\n\n        CORAM:\n        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG\n        HON'BLE MR. JUSTICE P.K.BHASIN\n\n     1. Whether the Reporters of local papers may be allowed\n        to see the judgment?\n\n     2. To be referred to Reporter or not?\n     3. Whether the judgment should be reported in the\n        Digest?\nPRADEEP NANDRAJOG, J.\n<\/pre>\n<p>1.      Criminal law was set into motion on 08.05.1993 at<br \/>\nabout 05.30 P.M. when HC Joginder Singh PW-14, recorded<br \/>\nDD No.16, Ex.PW-11\/A, that an unknown person had<br \/>\ninformed over the telephone of an incident of stabbing by<br \/>\nknife having taken place in front of house bearing Municipal<br \/>\nNo.B-25, Sawal Nagar.\n<\/p>\n<p>2.      A copy of Ex.PW-11\/A was handed over to Inspector<br \/>\nRam Kumar PW-11 who accompanied by Ct.Akhilesh Tyagi<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.135\/1999                                      Page 1 of 18<\/span><br \/>\n PW-8, went to the place in question where he met Krishan<br \/>\nKumar PW-1, who informed that his brother Rakesh Kumar<br \/>\n(hereinafter referred to as the &#8220;Deceased&#8221;) has been<br \/>\nstabbed and removed to the hospital by his neighbours and<br \/>\nthat he had witnessed the incident. Inspector Ram Kumar<br \/>\nrecorded the statement Ex.PW-11\/A of Krishan Kumar and<br \/>\nmade an endorsement Ex.PW-11\/B thereon, and at around<br \/>\n07.00 P.M. forwarded the same to the police station through<br \/>\nCt.Akhilesh Tyagi PW-8, for registration of an FIR.      Const.<br \/>\nAkhilesh Tyagi took the endorsement Ex.PW-11\/B to the<br \/>\npolice station and handed over the same to HC Joginder<br \/>\nSingh PW-14, who recorded the FIR No.196\/1993, Ex.PW-<br \/>\n8\/A, at about 08.00 P.M. on 08.05.1993, as recorded in the<br \/>\nentry    Ex.PW-14\/C   made   in   the   Roznamcha   Register.<br \/>\nSimultaneously with the registration of the FIR Ex.PW-8\/A<br \/>\ni.e. at about 08.00 P.M. on 08.05.1993 HC Joginder Singh<br \/>\nhanded over a copy of the FIR Ex.PW-8\/A to Ct.Vinay Kumar<br \/>\nPW-15, to be delivered to the Area Magistrate as recorded in<br \/>\nthe entry Ex.PW-15\/A made in the Roznamcha Register. At<br \/>\nabout 12.05 A.M. on 09.05.1993 Ct.Vinay Kumar returned to<br \/>\nthe police station after delivering the copy of the FIR Ex.PW-<br \/>\n8\/A at the residence of the Area Magistrate as recorded in<br \/>\nthe entry Ex.PW-15\/B made in the Roznamcha Register. Be<br \/>\nit noted here that an endorsement is made on the copy of<br \/>\nthe FIR Ex.PW-8\/A delivered to the Area Magistrate records<br \/>\nthat the same was received by the Magistrate at his<br \/>\nresidence at about 06.00 A.M. on 09.05.1993.\n<\/p>\n<p>3.      In his statement Ex.PW-11\/A, Krishan Kumar stated<br \/>\nthat today, at about 04.00 P.M. he along with Shiv Charan,<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.135\/1999                                     Page 2 of 18<\/span><br \/>\n Sanjay Kumar and Deepak Dangwal (hereinafter referred to<br \/>\nas the &#8220;Accused&#8221;) were playing cards in the house of Shiv<br \/>\nCharan, at which time there was an exchange of hot words<br \/>\nbetween the accused and Sanjay Kumar. At that time his<br \/>\nelder brother i.e. the deceased was lying down on a cot kept<br \/>\nin the house of Shiv Charan. During the course of the<br \/>\nquarrel between the accused and Sanjay Kumar the accused<br \/>\npicked up a pan and tried to hit Sanjay Kumar with the<br \/>\nsame, at which time the deceased got up and separated the<br \/>\naccused and Sanjay Kumar from each other. At that time<br \/>\nthe accused extended a threat to the deceased that since<br \/>\nhe is a well-wisher of Sanjay Kumar he would finish him off<br \/>\ntoday and left from there. After sometime the accused<br \/>\nreturned there with a sword in his hand. The accused<br \/>\nattacked the deceased with the sword upon which the<br \/>\ndeceased sustained an injury on the palm of his left hand.<br \/>\nShiv   Charan       snatched   the   sword   from   the   accused<br \/>\nwhereupon the accused got angry and again extended a<br \/>\nthreat to the deceased and left from there. Thereafter the<br \/>\ndeceased went to his house where he got his palm<br \/>\nbandaged from his father. At about 04.45 P.M. the accused<br \/>\ncame to the street in front of their house and started<br \/>\nshouting that he would kill the deceased. Thereafter the<br \/>\ndeceased came downstairs from his house to the street and<br \/>\nupon seeing the knife in the hand of the accused he ran<br \/>\nfrom there. When he i.e Krishan Kumar reached downstairs<br \/>\nhe saw that the accused was chasing the deceased upon<br \/>\nwhich he also started running behind them. After running for<br \/>\na distance of about 40-50 yards the accused caught hold of<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.135\/1999                                         Page 3 of 18<\/span><br \/>\n the deceased and inflicted several knife blows on the person<br \/>\nof the deceased in the street in front of Decent Hair Cutting<br \/>\nsaloon. The deceased got himself freed from the clutches of<br \/>\nthe accused but the accused again got hold of him and<br \/>\ninflicted knife blows on the person of the deceased. He<br \/>\nshouted to save the life of the deceased upon which the<br \/>\naccused ran towards him. He got scared and ran towards<br \/>\nthe fields. The deceased was removed to the hospital by the<br \/>\nboys of their neighbourhood. The incident in question was<br \/>\nwitnessed by one Suryanayak and some other persons from<br \/>\nhis neighbourhood.\n<\/p>\n<p>4.    After registration of the FIR Ex.PW-8\/A, Inspector Ram<br \/>\nKumar PW-11, prepared rough site plan Ex.PW-11\/B of the<br \/>\nplace of the occurrence and lifted blood lying at the place of<br \/>\noccurrence      as   also   earth   control   from   the   place    of<br \/>\noccurrence and seized the same vide memo Ex.PW-11\/D.<br \/>\nThereafter Inspector Ram Kumar proceeded to the hospital<br \/>\nwhere he learnt that the deceased was declared brought<br \/>\ndead at about 06.25 P.M. as recorded in the MLC Ex.PW-<br \/>\n10\/A of the deceased.\n<\/p>\n<p>5.    In the meantime, the crime team arrived at the place<br \/>\nof occurrence and inspected the place of occurrence and<br \/>\nprepared the report Ex.PW-11\/N at about 08.20 P.M. on<br \/>\n08.05.1993 and relevant would it be to note that the crime<br \/>\nteam report has left blank the column pertaining to the FIR<br \/>\nNumber in respect whereof the crime team had visited the<br \/>\nspot and also records that the Investigating Officer is<br \/>\nadvised to record the statements of the eye witnesses.\n<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.135\/1999                                          Page 4 of 18<\/span><\/p>\n<p> 6.    Thereafter Inspector Gajinder Singh PW-16, took over<br \/>\nthe investigation of the present case.\n<\/p>\n<p>7.    Since Krishan Kumar had indicted the accused i.e. the<br \/>\nrespondent as the assailant of the deceased, the police set<br \/>\nout   to    apprehend   him.   On   09.05.1993       the   police<br \/>\napprehended him. Upon being interrogated by Inspector<br \/>\nGajinder Singh PW-16, in the presence of Inspector Ram<br \/>\nKumar PW-15, the accused made a disclosure statement<br \/>\nEx.PW-11\/E wherein he stated that he can get recovered the<br \/>\nknife used by him for murdering the deceased. Pursuant<br \/>\nthereto, the accused led the aforesaid police officers to a<br \/>\npark and got recovered a knife hidden in the hedges, which<br \/>\nknife was seized by Inspector Gajinder Singh vide memo<br \/>\nEx.PW-11\/F.\n<\/p>\n<p>8.    On the same day i.e. 09.05.1993 the body of the<br \/>\ndeceased was sent to the mortuary of AIIMS hospital where<br \/>\nat about 11.30 A.M. Dr.M.S.Sagar PW-9, conducted the post-<br \/>\nmortem of the deceased and prepared the report Ex.PW-9\/A.<br \/>\nThe post-mortem report Ex.PW-9\/A of the deceased records<br \/>\nthat following 7 external injuries were found on the person<br \/>\nof the deceased:-\n<\/p>\n<p>      &#8220;1. Stitched wound left side of chest in              V<br \/>\n      intercoastal space 15 cm long curved in shape.\n<\/p>\n<p>      2.    Shoe shaped contusion left arm            middle<br \/>\n      portion lateral aspect &amp; size 8 cm x 3.5 cm.\n<\/p>\n<p>      3.    Abrasion right thumb dorsal aspect 1.5 cm x 1<br \/>\n      cm &amp; abrasion left glutal &amp; lambosacral region &amp;<br \/>\n      size 5 cm x 3 cm.\n<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.135\/1999                                      Page 5 of 18<\/span><\/p>\n<p>       4.    Stab wound left arm &amp; the labial aspect spleen<br \/>\n      21 cm bebra aeromian &amp; 9 cm above elbow joint &amp;<br \/>\n      size 27 X 1 cm. Irregular sharp margin inverted and<br \/>\n      obliquely placed going medially upward backward<br \/>\n      causing a track of 9 cm thigh muscles &amp; going out<br \/>\n      at left arm medial aspect size 2.5 cm x 1 cm placed<br \/>\n      16 cm above elbow &amp; 14 cm below aeromian.\n<\/p>\n<p>      5.    Incised wound left chest placed in anterior<br \/>\n      auxillary plane in IV intercoastal space in size 1.2 x<br \/>\n      1.4 cm muscle deep spindle shape with clean cut<br \/>\n      inverted margin not penetrating into plural cavity<br \/>\n      placed 15 cm left of mid line &amp; 16 cm below<br \/>\n      clavicular margin.\n<\/p>\n<p>      6.    Incised wound left side of chest &amp; 1.5 cm x 1.5<br \/>\n      cm with sharp clean cut inverted margin placed<br \/>\n      vertically 11 cm left of mid line &amp; 16 cm below<br \/>\n      clavicular margin just below left nipple, causing cut<br \/>\n      impression on 5th rib, not penetrating into chest<br \/>\n      cavity.\n<\/p>\n<p>      7.    Stab wound left side of chest placed obliquely<br \/>\n      over 6th ICS of size 3 cm x 0.6 cm placed 15 cm left<br \/>\n      midline and 22 cm below clavicular margin in<br \/>\n      midclavicular plane entering into left pleural cavity<br \/>\n      through 6th ICspace causing stab wound of heart as<br \/>\n      mentioned above. The direction of the wounds is<br \/>\n      medially, upward and forward.&#8221;\n<\/p>\n<p>9.    The post-mortem report Ex.PW-9\/A of the deceased<br \/>\nfurther records that the death of the deceased was caused<br \/>\ndue to shock as a result of afore-noted ante-mortem injuries<br \/>\nfound on the person of the deceased. Injuries Nos.4 to 7<br \/>\nfound on the person of the deceased were caused by sharp<br \/>\nedged weapon whereas injuries Nos.2 and 3 were caused by<br \/>\nblunt force. Injury No.7 found on the person of the deceased<br \/>\nwas sufficient to cause death in ordinary course of nature.\n<\/p>\n<p>10.   After the post-mortem, the doctor handed over the<br \/>\nclothes and blood sample of the deceased on a gauze to<br \/>\n<span class=\"hidden_text\">Crl.A.No.135\/1999                                     Page 6 of 18<\/span><br \/>\n Inspector Ram Kumar PW-11, who seized the same vide<br \/>\nmemo Ex.PW-11\/L.\n<\/p>\n<p>11.     The seized materials; viz. the blood sample and<br \/>\nclothes of the deceased and knife recovered at the instance<br \/>\nof the accused to the Central Forensic Science Laboratory<br \/>\nfor serological examination. Vide CFSL reports it was opined<br \/>\nthat the blood group of the deceased as A and that human<br \/>\nblood was found on the knife recovered at the instance of<br \/>\nthe accused, group whereof could not be determined.\n<\/p>\n<p>12.     During the course of the investigation of the present<br \/>\ncase,    Inspector   Gajinder   Singh   PW-16,   recorded    the<br \/>\nstatements      Ex.PW-2\/A,   Ex.PW-16\/A   and    Ex.PW-4\/A     of<br \/>\nSuryanayak, Shiv Charan and Sanjay Kumar respectively,<br \/>\nwherein they stated that they had seen the accused<br \/>\ninflicting several knife blows on the person of the deceased.\n<\/p>\n<p>13.     Needless to state, the accused was sent for trial.<br \/>\nCharge was framed against him for having committed the<br \/>\noffence punishable under Section 302 IPC.\n<\/p>\n<p>14.     At the trial, the prosecution examined 16 witnesses.\n<\/p>\n<p>15.     Krishan Kumar PW-1, deposed on similar lines as the<br \/>\ncontents of his statement Ex.PW-11\/A. On being questioned<br \/>\nabout his return to the place of occurrence the witness<br \/>\nstated: (Quote) \u201eWhen I returned back to the scene of<br \/>\noccurrence after about 5\/7 minutes, I noticed blood lying in<br \/>\nfront of the Decent Hair Cutting Saloon\u201f. On being<br \/>\nquestioned about the time of recording of his statement<br \/>\nEx.PW-11\/A the witness stated: (Quote) \u201eThe police had<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.135\/1999                                     Page 7 of 18<\/span><br \/>\n recorded my statement on the day of the incident at about<br \/>\n05.50 P.M. or 5.55 P.M.\u201f<\/p>\n<p>16.   Suryanayak PW-2, deposed that on 08.05.1993 at<br \/>\nabout 04.30 P.M. or 05.00 P.M. he was standing outside his<br \/>\nhouse when he heard some loud voices coming from the<br \/>\nside of a barber shop which was located near his house<br \/>\nupon which he started proceeding there. Upon reaching<br \/>\nthere he saw that the accused was holding a knife in his<br \/>\nhand and chasing the deceased. Thereafter the accused<br \/>\ninflicted several knife blows on the person of the deceased<br \/>\nin front of the barber shop. After sometime the deceased<br \/>\nran towards the main road to save his life but the accused<br \/>\nmanaged to catch hold of the deceased and again inflicted<br \/>\nseveral knife blows on his person. In the meantime the<br \/>\nyounger brother of the deceased Krishan Kumar came there<br \/>\nand started crying upon which the accused started chasing<br \/>\nKrishan Kumar. Krishan Kumar ran towards the fields to save<br \/>\nhis life. In the meantime the deceased fell on the ground<br \/>\nand was removed to the hospital by some people from the<br \/>\nneighborhood and one Shiv Charan. Thereafter he went to<br \/>\nthe house of the brother of the deceased to inform him<br \/>\nabout the incident. Shiv Charan and one another person<br \/>\nwhose name he does not know were also running behind<br \/>\nKrishan Kumar. On being questioned about his relations with<br \/>\nthe deceased the witness stated: (Quote) \u201eMy house is<br \/>\nsituated very near to the house of the deceased. I know this<br \/>\nfamily quite well since 1970. I am a frequent visitor in this<br \/>\nhouse. Similarly, the deceased\u201fs family used to visit my<br \/>\nhouse.\u201f On being questioned about his conduct at the time<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.135\/1999                                   Page 8 of 18<\/span><br \/>\n of the incident of murder of the deceased the witness<br \/>\nstated: (Quote) \u201eI did not intervene when I saw the accused<br \/>\nchasing Rakesh Kumar with his knife in his hand. I did not<br \/>\nextend any help either to save Rakesh Kumar nor made any<br \/>\nendeavor to apprehend the accused. Nor did I raise any<br \/>\nalarm to attract people either to save Rakesh or to<br \/>\napprehend the accused. I did not make any effort to lift the<br \/>\ninjured (since deceased) even after the accused had turned<br \/>\ntowards Krishan Kumar&#8230;.I had not gone to the hospital to<br \/>\nsee Rakesh Kumar (deceased).\u201f<\/p>\n<p>17.   Shiv Charan PW-3 and Sanjay PW-4, turned hostile and<br \/>\ndid not support the case of the prosecution. The witnesses<br \/>\ndenied having given any statements to the police or that<br \/>\nthey had seen the accused murdering the deceased.\n<\/p>\n<p>18.   Ct.Vinay Kumar PW-5A\/PW-15, was examined by the<br \/>\nprosecution on two occasions, once as PW-5\/A and on other<br \/>\nas PW-15. He deposed that he had delivered the copy of the<br \/>\nFIR Ex.PW-8\/A to the Area Magistrate at his residence at<br \/>\nabout 08.30 P.M. &#8211; 08.45 P.M. on 08.05.1993.\n<\/p>\n<p>19.   Inspector Ram Kumar PW-11 and Inspector Gajinder<br \/>\nSingh PW-16, deposed regarding the role played by them in<br \/>\nthe investigation of the present case. Be it noted here that<br \/>\nInspector Ram Kumar PW-11, deposed that he reached the<br \/>\nplace of occurrence at about 05.40 P.M. on 08.05.1993. On<br \/>\nbeing questioned about the visit of the crime team at the<br \/>\nplace of occurrence Inspector Ram Kumar stated: (Quote)<br \/>\n\u201eCrime team was called at the site of crime on 8th when I<br \/>\nreached at the site. Crime team came at about 8 or 8-30<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.135\/1999                                  Page 9 of 18<\/span><br \/>\n p.m. I do not remember the exact time. It is incorrect that<br \/>\ntill arrival of the crime team, no statement of complainant<br \/>\nwas recorded nor the case was registered. The crime team<br \/>\nat given their report by about 9-30 p.m. and thereafter, they<br \/>\nwent. The report Ex.PW11\/N was given by the Crime team.\n<\/p>\n<p>Q. I suggest it to you that even according to this report no<br \/>\nFIR or statement of the complainant or any statement of eye<br \/>\nwitness was recorded till the submission of the report by the<br \/>\ncrime.\n<\/p>\n<p>Ans: The FIR was recorded by that time. There may be an<br \/>\nerror in the report of the crime team.\u201f<\/p>\n<p>20.    In his statement under Section 313 Cr.P.C. the accused<br \/>\ndenied everything and pleaded false implication.\n<\/p>\n<p>21.    After holding that (i) the testimony of Krishan Kumar<br \/>\nPW-1, is unconvincing because of following reasons; namely,\n<\/p>\n<p>(a) the conduct of Krishan Kumar of running away from the<br \/>\nplace of occurrence and not save his brother i.e. the<br \/>\ndeceased from the clutches of the accused makes his<br \/>\npresence at the place of occurrence at the time of the<br \/>\nincident suspect; (b) even if it is believed that Krishan<br \/>\nKumar ran away from the place of occurrence in order to<br \/>\nprotect himself from the accused the conduct of Krishan<br \/>\nKumar of not returning to the place of occurrence at the<br \/>\nearliest to remove the deceased to the hospital despite<br \/>\nknowing that the deceased was critically injured by the<br \/>\naccused      again   makes   his   presence   at   the   place     of<br \/>\noccurrence at the time of the incident susceptible; (ii) the<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.135\/1999                                        Page 10 of 18<\/span><br \/>\n testimony of Suryanayak PW-2, also does not inspire<br \/>\nconfidence for the reason the conduct of Suryanayak of not<br \/>\neven making an effort to save the deceased from the<br \/>\nclutches of the accused despite being on good terms with<br \/>\nthe family of the deceased is most unnatural and makes his<br \/>\npresence at the place of occurrence at the time of the<br \/>\nincident susceptible; (iii) entry Ex.PW-15\/B made in the<br \/>\nRoznamcha Register recording that Ct.Vinay Kumar returned<br \/>\nto the police station at about 12.05 A.M. on 09.05.1993 after<br \/>\ndelivering the copy of the FIR Ex.PW-8\/A to the Area<br \/>\nMagistrate runs in teeth of the endorsement made by the<br \/>\nArea Magistrate in the copy of the FIR Ex.PW-8\/A delivered<br \/>\nto him that he received the same at his residence at 06.00<br \/>\nA.M. on 09.05.1993 and that the said discrepancy between<br \/>\nthe entry Ex.PW-15\/B made in the Roznamcha Register and<br \/>\nthe copy of the FIR delivered to the Area Magistrate strongly<br \/>\nsuggests that the FIR registered in the present case was<br \/>\nante-timed which turns raises a serious question mark on<br \/>\nthe veracity of the case of the prosecution and (iv) mere<br \/>\nrecovery of a blood-stained knife at the instance of the<br \/>\naccused is not sufficient to convict the accused particularly<br \/>\nwhen the group of the blood found on the said knife could<br \/>\nnot    be    ascertained,   vide   impugned   judgment   dated<br \/>\n26.07.1997 the learned Trial Judge acquitted the accused.\n<\/p>\n<p>22.    Aggrieved     by     the    impugned   judgment   dated<br \/>\n26.07.1997 passed by the learned Trial Judge acquitting the<br \/>\naccused of the charge framed against him the State has<br \/>\nobtained Leave to Appeal against the impugned decision.\n<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.135\/1999                                    Page 11 of 18<\/span><\/p>\n<p> 23.    During the hearing of the present appeal, following 3<br \/>\nsubmissions were advanced by the learned counsel for the<br \/>\nState:-\n<\/p>\n<p>A.     That the learned Trial Judge committed an illegality in<br \/>\ndiscarding the evidence of Krishan Kumar PW-1 and<br \/>\nSuryanayak PW-2, merely because the said witnesses did<br \/>\nnot come to the rescue of the deceased when he was being<br \/>\nattacked by the accused. Learned counsel for the State<br \/>\nargued that the criminal courts should not expect a set<br \/>\nreaction from any eye-witness on seeing an incident of<br \/>\nmurder. Every person who witnesses a murder reacts in his<br \/>\nown way. Some are stunned, become speechless and stand<br \/>\nrooted to the spot. Some become hysteric and start wailing.<br \/>\nSome run away to keep themselves as far away from the<br \/>\nspot as possible. Some rush to the rescue the victim, even<br \/>\ngoing to the extent of counter-attacking the assailants.<br \/>\nLearned       Counsel   argued   that   unless   the    reaction<br \/>\ndemonstrated by an eye-witness is so improbable or so<br \/>\ninconceivable from any human being pitted in such a<br \/>\nsituation it is unfair to dub his reactions as unnatural.<br \/>\nLearned counsel further argued that in the instant case<br \/>\nwitnesses Krishan Kumar and Suryanayak were unarmed<br \/>\nwhereas the accused was armed with a knife. In a situation<br \/>\nlike this the instinct of self-preservation can be the<br \/>\ndominant instinct. That being the position, the inaction of<br \/>\nthe said witnesses in not coming to the rescue of the<br \/>\ndeceased cannot be a ground for discarding their evidence.\n<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.135\/1999                                      Page 12 of 18<\/span><\/p>\n<p> B.      That the learned Trial Judge committed an illegality in<br \/>\ndiscarding the case set up by the prosecution against the<br \/>\naccused on the ground that there was a delay in sending the<br \/>\ncopy of the FIR registered in the present case to the<br \/>\nMagistrate. Learned counsel for the State argued that it is<br \/>\nsettled legal position that delay in sending the FIR to the<br \/>\nMagistrate is not sufficient for throwing out the entire<br \/>\nprosecution case as being fabricated if the prosecution had<br \/>\nproduced reliable evidence to prove the guilt of the<br \/>\naccused.\n<\/p>\n<p>C.      That the learned Trial Judge committed an illegality in<br \/>\nnot attaching due importance to the circumstance that<br \/>\nhuman blood was detected on the knife recovered at the<br \/>\ninstance of the accused. Learned counsel for the State<br \/>\nargued that the aforesaid circumstance speaks volumes<br \/>\nabout the guilt of the accused particularly when the accused<br \/>\ndid not offer any explanation as to how human blood was<br \/>\ndetected on the knife recovered at his instance.\n<\/p>\n<p>24.     Before proceeding further, let us note following legal<br \/>\nprinciples which the appellate courts are required to keep in<br \/>\nmind while adjudicating an appeal against an order of<br \/>\nacquittal:-\n<\/p>\n<p>I       The order of acquittal generally shall not be interfered<br \/>\nwith because the presumption of innocence of the accused<br \/>\nis further strengthened by the acquittal of the accused.\n<\/p>\n<p>II      If the reasons which have formed the basis of the<br \/>\norder    of    the   trial   court   acquitting   the   accused    are<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.135\/1999                                          Page 13 of 18<\/span><br \/>\n reasonable and plausible and cannot be entirely and<br \/>\neffectively dislodged or demolished the appellate court<br \/>\nshould not interfere with the order of acquittal.\n<\/p>\n<p>III     The appellate court should interfere with the order of<br \/>\nacquittal of the accused only when there are compelling and<br \/>\nsubstantial reasons to do so.\n<\/p>\n<p>IV      A miscarriage of justice which may arise from acquittal<br \/>\nof the guilty is no less than from the conviction of the<br \/>\naccused.\n<\/p>\n<p>25.     More often than not, FIRs are ante-timed to gain time<br \/>\nto plant eye-witnesses or to provide sufficient time to the<br \/>\nmaker of the FIR to enable him spin a false story. The<br \/>\npromptness in registering an FIR lends an assurance to the<br \/>\ntruthfulness of the facts stated therein for the reason<br \/>\nanything said spontaneously by a person is presumably the<br \/>\ntruth for the reason to create and spin lies the evil mind has<br \/>\nto be put to work and fed on the malice inside, which needs<br \/>\ntime.\n<\/p>\n<p>26.     Section 157 of the Code of Criminal Procedure, 1973<br \/>\nrequires sending of copy of an FIR to the Magistrate<br \/>\npromptly and without undue delay. The importance of<br \/>\nprompt dispatch of a copy of the FIR to a Magistrate can be<br \/>\nhardly overemphasized. The time at which an FIR is<br \/>\nreceived by a Magistrate goes a long way in coming to the<br \/>\nconclusion as to the time at which the FIR was registered.<br \/>\nNo doubt, the non-compliance of Section 157 does not<br \/>\nconstitute a ground to throw away a prosecution case but is<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.135\/1999                                    Page 14 of 18<\/span><br \/>\n a factor to be seriously reckoned with while appreciating the<br \/>\nevidence led by the prosecution.\n<\/p>\n<p>27.    Inspector Ram Kumar PW-11 claims to have recorded<br \/>\nthe statement Ex.PW-11\/A of Krishan Kumar PW-1 and sent<br \/>\nthe rukka at 7:00 PM on 8.5.1993 as per the endorsement<br \/>\nEx.PW-11\/B. The FIR purports to be recorded at 8:00 PM as<br \/>\nper Ex.PW-14\/C and as per Ex.PW-15\/A Ct.Vinay Kumar PW-<br \/>\n5A\/PW-15 left the police station around same time to deliver<br \/>\nFIR to the Area Magistrate.        Entry Ex.PW-15\/B shows<br \/>\nCt.Vinay Kumar having returned to the police station after<br \/>\ndelivering FIR to the Area Magistrate at 5 minutes past 12 in<br \/>\nthe midnight.\n<\/p>\n<p>28.    But, the Area Magistrate received the FIR at 6:00 AM<br \/>\nas per the endorsement to be found on Ex.PW-8\/A.              It<br \/>\nassumes importance that the crime team arrived at the<br \/>\nplace of occurrence at 8:20 PM and as per the testimony of<br \/>\nInspector Ram Kumar PW-11 left at 9:30 PM. The relevant<br \/>\ncolumn in the proforma of the report where FIR Number had<br \/>\nto be recorded was left blank and the crime team advised<br \/>\nthe IO to record the statements of the eye witnesses. Now,<br \/>\nthe crime team which reached at the spot at 8:20 PM<br \/>\nremained at the spot as per the testimony of Inspector Ram<br \/>\nKumar till 9:30 PM and it remains a mystery that in the<br \/>\nreport of the Crime Team the column pertaining to FIR<br \/>\nnumber remained blank.     The cumulative of the aforesaid<br \/>\ncircumstances i.e. FIR being admittedly received by the<br \/>\nMagistrate at 6:00 AM but DD entry 15-B recording that<br \/>\nCt.Vinay Kumar had returned to the police station at 5<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.135\/1999                                  Page 15 of 18<\/span><br \/>\n minutes past 12 in the midnight after delivering copy of the<br \/>\nFIR to the Area Magistrate as also the documentary and oral<br \/>\nevidence pertaining to the report of the Crime Team creates<br \/>\ngreat suspicion on the time when the FIR was recorded and<br \/>\nthere is every possibility of the FIR being ante-timed and<br \/>\nthis time being used to plant eye-witnesses.\n<\/p>\n<p>29.    This takes us to deal with the reason predicated upon<br \/>\nthe    conduct      of   witnesses   Krishan   Kumar   PW-1    and<br \/>\nSuryanayak PW-2, given by the learned Trial Judge to acquit<br \/>\nthe accused.\n<\/p>\n<p>30.    Suryanayak PW-2, deposed that Shiv Charan and<br \/>\nSanjay Kumar were following Krishan Kumar at the time<br \/>\nwhen he was running behind the accused who was chasing<br \/>\nthe deceased. Shiv Charan and Sanjay Kumar were the<br \/>\nfriends of Krishan Kumar and the deceased as evident from<br \/>\nthe testimony of Krishan Kumar PW-1. Krishan Kumar and<br \/>\nSuryanayak together with Shiv Charan and Sanjay Kumar<br \/>\ncould have overpowered the accused at the time when he<br \/>\nwas attacking the deceased and rescued the deceased but<br \/>\nthey did not do so. According to Krishan Kumar, the accused<br \/>\nattempted to attack him when he tried to rescue the<br \/>\ndeceased due to which he got scared and ran away from the<br \/>\nplace of occurrence. One could have understood the<br \/>\nconduct of Krishan Kumar of running away from the place of<br \/>\noccurrence in order to protect himself had he been all alone<br \/>\nwith no help from any quarter, which was not the case. If<br \/>\nevidence of Suryanayak PW-2, is to be believed, Krishan<br \/>\nKumar was surrounded by three well-wishers namely<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.135\/1999                                       Page 16 of 18<\/span><br \/>\n Suryanayak, Shiv Charan and Sanjay Kumar at the time<br \/>\nwhen the accused was attacking the deceased. As regards<br \/>\nSuryanayak PW-2, there was no reason for him to not come<br \/>\nforward to rescue the deceased despite being a well-wisher<br \/>\nof the family of the deceased.\n<\/p>\n<p>31.    The matter can also be looked at from another angle.<br \/>\nThe incident in question happened around 05.00 P.M. on<br \/>\n08.05.1993. Inspector Ram Kumar PW-11, was the first<br \/>\npolice officer to reach the place of occurrence after<br \/>\nreceiving the information of the incident. Inspector Ram<br \/>\nKumar reached the place of occurrence at about 05.40 P.M.<br \/>\nand allegedly met Krishan Kumar, the younger brother of<br \/>\nthe deceased. By that time, the deceased was removed to<br \/>\nthe hospital. The natural conduct would be to rush to the<br \/>\nhospital and not stay at the spot to make a statement<br \/>\nbefore a police officer. We concur with the reasoning of the<br \/>\nlearned Trial Judge that the conduct of the two stated eye<br \/>\nwitnesses is most unnatural and belies the claim of the two<br \/>\nbeing eye witnesses.\n<\/p>\n<p>32.    We would be then left with the incriminating evidence<br \/>\nof a knife being recovered at the instance of the respondent<br \/>\non which human blood was detected.\n<\/p>\n<p>33.    As observed in the decisions reported as Deva Singh<br \/>\nVs. State of Rajasthan 1999 Cri LJ 265 (SC), Prabhoo Vs.<br \/>\nState of U.P. AIR 1963 SC 1113 and Surjeet Singh Vs. State<br \/>\nof Punjab AIR 1994 SC 110, mere recoveries of a blood<br \/>\nstained knife or an axe and\/or recovery of blood stained<br \/>\nclothes stated to be worn by the assailant pursuant to the<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.135\/1999                                  Page 17 of 18<\/span><br \/>\n disclosure statement of the assailant, without any further<br \/>\nevidence,      are   insufficient   circumstances     leading   to    a<br \/>\nconclusion on a reasonable hypothesis that the person<br \/>\nconcerned is guilty of the offence.\n<\/p>\n<p>34.    The view taken by the learned Trial Judge is a<br \/>\nreasonable probable view and thus we dismiss the appeal.\n<\/p>\n<p>35.    TCR be returned.\n<\/p>\n<p>                                    (PRADEEP NANDRAJOG)<br \/>\n                                           JUDGE<\/p>\n<p>                                       (P.K.BHASIN)<br \/>\n                                            JUDGE<br \/>\nAUGUST 18, 2011<br \/>\nmm<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.135\/1999                                          Page 18 of 18<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"<p>Delhi High Court State vs Deepak Donyal on 18 August, 2011 Author: Pradeep Nandrajog * 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 &#8230;.. Petitioner Through: Mr.Pawan Sharma, Standing Counsel (Crl.) with Mr.Harsh Prabhakar, Advocate versus DEEPAK DONYAL [&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":[14,8],"tags":[],"class_list":["post-191099","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>State vs Deepak Donyal on 18 August, 2011 - 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\/state-vs-deepak-donyal-on-18-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Deepak Donyal on 18 August, 2011 - Free Judgements of Supreme Court &amp; 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