Criminal Appeal No.577 of 2002

15th January, 2003

JUDGMENT

JUDGMENT :- The appellant herein was Accused 2 before the learned Additional Sessions Judge, Delhi in SC No.13 of 1998.

2. This appellant and another accused named Mukesh who was A-1 before the trial court were charged for offence punishable under Section 302 read with Section 34 IPC for having caused the death of Dinesh Kumar at about 9.00 p.m. on 6-4-1998 at Anand Parbat located in Delhi. The trial court after considering the material on record came to the conclusion that the accused are guilty of offences punishable under Section 304 Part I read with Section 34 IPC, hence, sentenced both the accused persons to undergo 10 years' rigorous imprisonment and imposed a fine of Rs.1000 each and in default to undergo further period of one month. Their appeal before the High Court of Delhi having failed, the second accused alone has preferred this appeal before this Court.

3. The brief facts necessary for the disposal of this appeal is that deceased Dinesh Kumar was related to one Dhiraj Kumar and PW 12 Ravinder Kumar. There was enmity between the uncle of Dhiraj Kumar and A-1 Mukesh and criminal cases were pending against each other. In the evening of 6-4-1998 it is stated by the prosecution that deceased Dinesh Kumar came to visit the family of Dhiraj Kumar and at about 9.00 p.m. the deceased along with Dhiraj Kumar and PW 12 Ravinder Kumar went to a juice shop for drinking juice, at that time it is stated that the appellant herein along with A-1 Mukesh came to the said shop and on seeing the deceased Dhiraj Kumar and PW 12 Ravinder Kumar, A-1 allegedly told the appellant to catch hold with an intention to assault them. On being told so by A-l, A-2 Bishan held the deceased Dinesh Kumar while A-1 Mukesh stabbed him in the right side of the abdomen. The further case of the prosecution is that the accused persons ran away from the place of occurrence and injured Dinesh Kumar was taken to Ram Manohar Lohia hospital by Dhiraj Kumar and PW 12 Ravinder Kumar where Dinesh Kumar died next morning. The incident in question was reported by Dhiraj Kumar to the police by lodging a complaint at about 10.05 p.m. on 6-4-1998, consequent to which the police visited the hospital and recorded the statement of Dhiraj Kumar which was treated as FIR at about 1.05 a.m. on 7-4-1998, and the FIR which was originally registered under Section 307 was converted under Section 302 read with Section 34 IPC and after conducting investigation and arresting the accused persons the investigating agency filed the charge against the accused persons, as stated above.

4. During the pendency of the trial Dhiraj Kumar who was one of the witnesses to the incident with whom A-1 had enmity was murdered in a separate incident, hence, his evidence was not available by the prosecution. The prosecution strongly relied on the evidence of PW 12 Ravinder Kumar who is also related to the deceased and who according to the prosecution was present at the time of incident. Relying on the evidence of this witness, the court came to the conclusion that the prosecution has established the fact that the deceased was killed by these accused persons and based on this evidence the trial court convicted the appellant and A-1, as stated above.

5. In the appeal before the High Court, the learned counsel who appeared for the accused persons after arguing the matter on merit for some time, confined his arguments only in regard to the nature of the offence and the sentence awarded to the accused.

6. Mr T. C. Sharma, learned counsel appearing for the appellant herein, contended that this was done by learned counsel without instructions from his client, therefore, the appellant's case was prejudiced and he wanted to argue this appeal on facts also. In the normal course, we would not have accepted this argument of the learned counsel because of the specific statement recorded in the judgment of the High Court but as an exception and in the interest of justice, we decided to examine the appeal by examining the evidence with the help of learned counsel.

7. From the evidence of PW 12, it is clear that the incident in question, as stated by the prosecution, had taken place, and the court below was justified in coming to the conclusion that the accused were responsible for the death of the deceased Dinesh Kumar. However, the learned counsel for the appellant contended that the investigating agency has failed to recover the bloodstained clothes of the eye-witnesses which creates a doubt as to the presence of PW 12. Though this is a correct statement of fact, the prosecution has given some explanation why this was not done. The prosecution states that since PW 12 and Dhiraj Kumar, the other eye-witnesses, were busy removing the deceased to the hospital, and were in the hospital throughout the night and thereafter the deceased having died in the morning of 7-4-1998, it could not recover the bloodstained clothes. The trial court has considered this aspect of the case and rejected the defence argument on this point primarily on the ground that when it accepted the ocular evidence of PW 12, this omission on the part of the prosecution in not recovering the bloodstained clothes of the witness did not vitiate the prosecution case. On this basis accepting the evidence of PW 12 and relying on the corroborating evidence of PWs.10 and 11, the trial court found the accused guilty. We agree with the reasoning of the trial court that once the court is satisfied that the evidence of the eye-witness is reliable and acceptable, some omission on the part of the investigating agency ipso facto would not affect the genuineness of the evidence of the said witness. In the instant case, as stated above, if PW 12's evidence can be accepted in regard to the incident in question, the fact that his bloodstained clothes were not seized by the investigating agency, would not, in any manner, render the evidence of the said eyewitness unreliable. The trial court having accepted the evidence of PW 12, we do not find any reason to interfere with the said finding.

8. Learned counsel for the appellant then contended that this appellant had no motive whatsoever to take part in the attack on the deceased. He pointed out that the deceased was not a person of the same locality and even according to the prosecution the appellant had met him for the first time, therefore, he pleaded that this appellant should be treated leniently, taking into consideration the facts and circumstances of this case. We have examined this aspect of the argument of the learned counsel for the appellant and having taken into consideration all aspects of the case, we are of the opinion that the sentence awarded to the appellant is somewhat on the higher side, therefore, we reduce the same to 7 years' RI and maintain the fine awarded by the court below. With the above modification, this appeal fails and the same is hereby dismissed.

Order accordingly.