Kumar Vs. State (Delhi Admn.)  INSC 31 (29 January 1992)
K. Ramaswamy, K. Mohan, S. (J)
1993 AIR 973 1994 SCC Supl. (1) 462
appellant was charged for the offenceof murder of Sudhir on March 19, 1973 at 12 noon. The trial court acquitted him of the charge, but on appeal
the High Court reversed the acquittal and convicted him under Section 302 IPC
and sentenced him to imprisonment for life. Thus this appeal under Section 2 of
the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1972.
facts in brief are that on March 19, 1973 being the Holi day, the appellant and
one Rajan Mani went to the shop of the deceased bearing No. 1259/A/B situated
at Balbir Nagar, Shahdara, New Delhi and requested him to close the tea shop
which he was vending and asked him to take part in playing Holi. Thereon the
deceased refused to accede to their request. Thereafter, in a huff the
appellant and Rajan Mani went away with a dire threat to the deceased and his
father, Ved Prakash, PW-1, who remonstrated against the threat. One hour
thereafter the appellant came holding a gupti (sharp edged weapon) in his right
hand to the shop by which time the deceased was closing the shop. Rajan Mani
took the deceased in his arms and held him back. The appellant inflicted a
fatal blow near the neck and also gave other minor injuries. PW 1 and PW 3 have
seen the occurrence. The deceased was made to walk for a distance of 2530 feet
and thereafter he fell down at the house of PW 4.
he was taken to the hospital. The deceased died two days thereafter, namely, on
March 21, 1973. PW 12, the doctor, conducted the
autopsy and found that there were as many as nine injuries and injury No. 2 was
found to be fatal which in the opinion of the doctor was sufficient to cause
death in the ordinary course of nature. PW 1 is the father of the deceased. PW
3 is another independent witness, who happened to come over to the area to his
sister's house to play Holi.
trial court disbelieved the evidence of PW 3 on the ground that PW 1 did not
disclose the name of the PW 3 either in his initial statement under Section 161
or in his supplementary statement. The name of PW 3 was also not disclosed in
the FIR. The statement under Section 164 of CrPC was got recorded. As a result,
his evidence was suspect. The evidence of PW 1 was also disbelieved. The High
Court considered the evidence afresh and found that PW 3 is an independent
witness. PW 1 being the father of the deceased is not 464 interested to exclude
the real offender and implicate an innocent person as the assailant of his son
and that, therefore, their evidence was found acceptable. The High Court
accordingly convicted the appellant and confirmed the acquittal of the co-accused,
Das Bahl, learned counsel for the appellant has reiterated the contentions
which were found acceptable to the trial court, but on consideration of the
evidence we find no justifiable reason to differ from the High Court.
seen that in the cross-examination of PW 3 he has graphically explained the
attack mounted by the appellant on the deceased, but for the fact that he was
an eyewitness, it would be difficult to give such a graphic description of the
happening of the occurrence. Absolutely PW 3 has no axe to grind against the
appellant. No material contradictions have been brought out to doubt his
veracity except stating that he was speaking falsely. PW 3 being an independent
witness, his evidence cannot become suspect merely because the statement under
Section 164 CrPC was got recorded by the police. Perhaps with a view to see
that he cannot be gained over, the police in its usual precaution has got the
statement of PW 3 recorded under Section 164 CrPC. It might be that there is an
attempt to pressurise PW 3 by getting the statement under Section 164 and the
prosecution attempted to pin him down to the statement given to them.
that ground should be taken as a caution to scrutinise the evidence of PW 3 and
subject it to critical examination.
have carefully scanned his evidence keeping these factors in view and we find
that absolutely there are no compelling reasons to differ from the assessment
of the evidence by the High Court to disbelieve his evidence. That apart, we
have the evidence of PW 1, Ved Prakash, father of the deceased, which is
sufficient to hold that the appellant alone has inflicted the injury which
resulted in the death of Sudhir.
not disputed that PW 1 was present at the time when the shop was being closed.
Even at the first instance also, the father was present when the threat was
administered by the appellant to the father himself, when he remonstrated
against the obstruction to his son continuing the tea business in his shop. PW
1 being the father is interested to bring to book the real culprit and he does
not exclude the real culprit and inculpate an innocent person.
from this perspective, we find that the evidence of PW 1 also is natural. It is
consistent though there are some discrepancies in his evidence vis-a-vis the
statement under Section 161 which are not on material particulars of the
totality of the facts and the circumstances, we are satisfied that the evidence
of PW 1 and PW 3 inspires confidence to be acceptable. Accordingly, we accept
their evidence. From their evidence, it is clear that the prosecution has
established that the appellant alone has inflicted the injury No. 2 which
resulted in the death of Sudhir.
next question is what is the offence the appellant had committed. We have seen
the evidence. Mr V.C. Mahajan, learned counsel for the State contended that the
appellant came one hour after the initial exchange of words; he came with sharp
edged weapon and without any provocation he inflicted the injury on the
deceased when he was held back by the acquitted co-accused. That would show
that there is an intention to kill him, and as per the doctor the injury was
sufficient in the ordinary course of nature to cause the death coming within
clause thirdly of Section 300 IPC. It is no doubt true, as rightly contended,
that if read in isolation by itself the offence may be murder, but when closely
465 scrutinised the evidence in this behalf, we find that the evidence cannot
conclusively show that the offence can be brought within clause thirdly of
Section 300 IPC.
have seen the nature of the injuries and also the time gap between the time ofinfliction
of the injury till the date of death which was two days after the injurywas
inflicted. We have no sufficient material as to the nature of the treatment
given to the deceased during those two days.
these circumstances, though the injury had resulted in the death of the
deceased, we cannot conclusively say that it was sufficient to cause his death.
the offence would be one falling under Section 304 Part 11 of IPC. In the
result, we set aside the conviction under Section 302 IPC and sentence of life
imprisonment and convict the appellant under Section 304 Part 11 of IPC and
impose a sentence of imprisonment for a period of seven years' rigorous
imprisonment. The appeal is accordingly allowed to the above extent and the
appellant shall undergo rigorous imprisonment for a period of seven years.