IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : INDIAN PANEL CODE. CRL APPEAL No. 52/1993 PARMESH KUMAR. - versus STATE

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : INDIAN PANEL CODE Judgment delivered on: CRL APPEAL No. 52/1993 PARMESH KUMAR Appellant - versus STATE... Respondent Advocates who appeared in this case: For the Appellants : Mr Sanjeev Sharma For the Respondent/State : Mr Sunil Sharma, APP CORAM:- HON'BLE MR JUSTICE BADAR DURREZ AHMED HON BLE MR JUSTICE V.B. GUPTA BADAR DURREZ AHMED, J 1. The appellant, Parmesh Kumar, has been found guilty of the offence punishable under Section 302 IPC by the learned Additional Sessions Judge, New Delhi by virtue of his judgment dated The order on sentence is also dated The appellant was sentenced to undergo rigorous imprisonment for life. The appellant is aggrieved by the said judgment and order on sentence. 2. The charge against the appellant was framed by the Additional Sessions Judge on In terms of the charge, the appellant was accused of causing the murder of Aditya, son of Sh. Brahma Shankar and thereby having committed the offence punishable under Section 302 IPC. It was alleged that the appellant committed the said murder on at about 9:05 am at house No. A-195, J. J. Colony, Khan Pur, New Delhi within the jurisdiction of Police Station Ambedkar Nagar. 3. The prosecution case is that on at about 10 am duty Constable Jai Prakash at Safdarjang Hospital informed the Police Station Ambedkar Nagar on telephone that one Aditya had been admitted in the hospital in an injured condition by one CRL. A. 52/93 Page No.1 of 10

2 Anil Kumar. On receipt of this information DD No. 9-B was recorded and was marked to ASI Bal Kishan, who along with Constable Satbir Singh went to the hospital. Anil Kumar (PW10), who had got the injured Aditya admitted in the hospital, met ASI Bal Kishan and made a statement (Exhibit PW9/B) to the effect that on at about 9 am he along with his friend Aditya (deceased) went to meet the appellant (Parmesh Kumar) to collect his balance amount of Rs 100/-. In connection with this, the appellant picked up a quarrel with PW10 Anil Kumar and Aditya and abused them. During the altercation, the appellant, with the intention of killing, gave a blow with a pair of scissors on Aditya s chest. As a result of this blow Aditya s chest started bleeding. It is further revealed in the statement Exhibit PW9/B that thereafter Aditya was admitted in an injured condition in Safdarjang Hospital. 4. On the basis of this statement a case under Section 307 IPC was registered and the investigation was handed over to SI Mehar Chand, who visited the spot, prepared the site plan and recorded the statements of some of the witnesses. On Aditya was declared fit for statement and his statement under Section 161 Cr. P.C was allegedly recorded, though the original statement was not produced before the trial court as it was allegedly not available. Aditya was discharged from the hospital on The appellant was arrested on It is alleged that during his police remand he made a disclosure statement regarding the weapon of offence, namely, the pair of scissors but the same could not be recovered. On , Aditya was again brought to the hospital but he was declared as brought dead. The FIR was converted from one under Section 307 IPC to one under Section 302 IPC. On the inquest proceedings were conducted and the body was sent for post mortem examination. Cause of death was opined to be shock and haemorrhage due to ante mortem injury to the lung which was sufficient to cause death in the ordinary course of nature and was likely to be caused by a sharp penetrating weapon. Clothes of the deceased which had been sent to the CFSL, on chemical analysis revealed human blood of O group. After completion of investigation CRL. A. 52/93 Page No.2 of 10

3 the police submitted the challan against the appellant under Section 302 IPC. As already indicated above, the appellant was charged under Section 302 IPC, to which he pleaded not guilty and claimed trial. 5. In all 24 witnesses were examined but there is only one alleged eye witness, namely, PW10 Anil Kumar. In his Section 313 Cr. P. C. statement, the appellant admitted that he was a tenant in house No. D-56, J. J Colony, Khan Pur owned by PW18 Sher Singh (father of PW10 Anil Kumar) during the months of September, October and November, 1987 at the rate of Rs 200 per month. The appellant denied that any amount of rent was due against him and he completely denied his involvement in the alleged incident and stated that he had been falsely implicated. No defence evidence was led. 6. We have heard the counsel for the parties and we feel that the entire case turns on the testimony of the sole eye witness PW10 Anil Kumar. If the testimony of PW10 is to be believed, then the complicity of the appellant would stand established. It is only thereafter that the alternative arguments submitted by the learned counsel for the appellant with regard to the appellant being involved only in the minor offence under Section 326 or Section 304 Part-II IPC would come up for consideration. If, however, we are of the opinion that the testimony of PW10 Anil Kumar cannot be relied upon, then the appellant would be entitled to acquittal. In that event, the alternative arguments would become irrelevant. It is, therefore, necessary to scrutinize the testimony of PW10 Anil Kumar with care and in detail. For this purpose, it would be necessary for us to compare his testimony in Court with his statement under Section 161 Cr.P.C (Exhibit PW9/B). This would give us an indication as to whether his testimony in Court has been embellished and/ or materially improved so as to secure the conviction of the appellant. 7. In Exhibit PW9/B Anil Kumar stated that at about 9 am on the fateful day he and his friend Aditya went to meet Parmesh Kumar to collect his/ their balance of Rs CRL. A. 52/93 Page No.3 of 10

4 100 from him. However, in the examination-in-chief in Court PW10 Anil Kumar stated that Parmesh Kumar (the appellant herein) was his father s tenant and that he had been paying rent at the rate of Rs 200 per month. He also stated that on at 9 am they had gone to collect the balance amount of Rs 100 on account of remaining rent. It is clear that the two statements, one under Section 161 Cr. P.C and the other the testimony in Court, are at variance on this point. While Exhibit PW9/B does not reveal as to how the amount of Rs 100 was recoverable from the appellant, the testimony in Court indicates that it was on account of balance rent inasmuch as the appellant was his father s tenant. The factum of tenancy is not mentioned in Exhibit PW9/B. Of course, this variance by itself is not material inasmuch as it is established that the appellant was a tenant of PW10 Anil Kumar s father. 8. Again, in Exhibit PW9/B there is no mention of any dialogue between Aditya and the appellant whereas in examination-in-chief, PW10 stated that when he demanded money from the appellant, the appellant picked up a quarrel and started abusing him and his friend Aditya and it is at that point of time that Aditya questioned the appellant as to why was he abusing him when the dispute was between the appellant and Anil Kumar. 9. While in Exhibit PW9/B it is merely stated that a quarrel and an altercation took place and that the appellant, with the intention of killing, gave a blow with a pair of scissors on Aditya s chest, in the testimony of PW10 before Court it is stated that because Aditya had an exchange of words with the appellant, as indicated above, the latter got enraged. The appellant then went inside his house and brought a pair of scissors and gave a blow on Aditya s chest which started bleeding. 10. In Exhibit PW9/B there is no mention as to what happened to Aditya on receiving the said blow. However, in PW10 s testimony before Court, it is indicated that Aditya became unconscious and fell down. CRL. A. 52/93 Page No.4 of 10

5 11. Although in both Exhibit PW9/B as also his testimony before Court PW10 Anil Kumar has stated that he admitted Aditya in an injured condition in Safdarjang Hospital, the statement Exhibit PW9/B does not indicate as to how and under what circumstances Aditya was removed from the spot to the hospital. Even in his examination-in-chief PW10 Anil Kumar has not revealed as to how and in what manner he took Aditya to hospital. He has only indicated that Aditya was unconscious at the time he took him to emergency ward. This, of course, was not stated in Exhibit PW9/B. In his cross-examination PW10 Anil Kumar stated that he took Aditya to hospital in a threewheeler scooter and that he had fetched the three-wheeler scooter at a distance of less than half a kilometer from the spot. These facts are not narrated in Exhibit PW9/B. 12. Exhibit PW9/B also does not reveal that PW10 Anil Kumar hired the scooter running on the road and that it took him five minutes to bring the scooter to the spot. It is obvious that since the mode of transport itself had not been mentioned in his statement Exhibit PW9/B, it was also not stated as to how he lifted Aditya in his arms from the spot and placed him in the scooter and that he sat on one seat and that Aditya was adjusted in the remaining seat in the rear. These statements are only to be found in the crossexamination of PW10 before Court. Interestingly, PW10 Anil Kumar stated that he had lifted Aditya in his arms from the spot and placed him in the scooter. He also stated that Aditya s clothes were stained with blood but his (Anil Kumar s) clothes did not receive any blood stains. Furthermore, in his cross-examination PW10 stated that no other person came when he shifted Aditya and that people had collected at the spot after the stabbing, later on. He also revealed that the altercation between the appellant and the deceased Aditya took place for hardly two-three minutes and that he did not raise any alarm when the appellant stabbed Aditya. 13. From the above, it is apparent that the story emanating from the statement Exhibit PW9/B has been vastly improved and embellished by PW10 Anil Kumar in his testimony before Court. CRL. A. 52/93 Page No.5 of 10

6 14. PW10 Anil Kumar was put a very dangerous question, dangerous on the part of the defence, as to how the alleged stabbing was done. However, that question put in cross-examination has revealed an interesting answer and perhaps key to the case. The answer given by PW10 Anil Kumar was that stabbing was done by holding one grip and one blade in the hand and the remaining blade was stabbed on Aditya which caused the injury. According to the learned counsel for the appellant this is an impossibility. However, when this contention was raised before the Trial Court, the said Court rejected the same, in our view incorrectly, by holding that a scissor blow given with force by holding one grip and one blade in one hand can very well cause a stab wound as noticed on the chest of Aditya. We have given our anxious consideration to this aspect of the matter and have tried to visualize as to how the scissors held in the manner indicated by the said witness could have at all caused an injury on the deceased Aditya. As submitted by the learned counsel for the appellant, scissors work on the principle of levers and we find that the grip or the handle portion of the scissors is usually larger than or at least the same length as the blades. Consequently, when the scissors are held in such a fashion where the scissors are opened and one blade and one grip / handle is held together in one hand, then the remaining blade and grip are also in a similar position in the opposite direction. If the blade is shorter than or equal in length to the grip then there is no possibility of the blade causing an injury. This is the position with an average pair of scissors. The prosecution has not presented a case to suggest that the scissors used in the present case were of a special nature. It is for these reasons that we do not agree with the conclusion of the Trial Court on this point. Furthermore, the blade and grip / handle, if held in the manner indicated, would, in all likelihood, have also resulted in some injury to the hand of the person who stabbed. But, no injury was received by the appellant. If PW10 Anil Kumar is to be believed, then the manner of holding the scissors would not only negate the possibility of causing an injury as suggested by him but, also rule out the appellant. In fact, this is a pointer in the direction that PW10 Anil Kumar did not actually witness the incident. CRL. A. 52/93 Page No.6 of 10

7 15. Another important aspect of the matter is that although the appellant was taken into custody on and was in police remand, the alleged weapon of offence was not recovered. 16. These circumstances have led us to believe that the testimony of PW10 Anil Kumar cannot be made the sole basis for convicting the appellant. Apart from the testimony of PW10 Anil Kumar, there is no other evidence leading to the conviction of the appellant. Of course, there is the post mortem report and the MLC which indicate that the deceased Aditya received a stab injury on his chest, but that by itself would not be sufficient to link the appellant with the injury. It is also important to remember that while Aditya was in the hospital, no statement was recorded which could have been termed as his dying declaration. Aditya had been declared fit for statement on itself and in fact he was only given conservative treatment while he was in the hospital. The wound did not even require stitches. His condition was satisfactory and he was discharged on at about 12 noon. He was brought back as dead on at 6 pm in the hospital. The prosecution has not explained what happened during the period 12 noon of and 6 pm of Another interesting aspect is that the X-ray report Exhibit PW6/B indicates consolidation of the left lower lobe of lungs. However, the doctor S. K. Verma PW19, who conducted the post mortem examination, noted that there was no consolidation in this case. This clearly contradicts the X-ray report. However, the said witness stated that there is no relationship between bleeding and consolidation. It is quite possible that since consolidation was present in the lower lobe of the left lung of the deceased Aditya, he was probably suffering from some disease. 17. We may also try to visualize what happened on the fateful day on the basis of PW10 s testimony before Court. According to him balance rent of Rs 100/- was due from the appellant Parmesh Kumar. He along with his friend Aditya had gone to Parmesh Kumar s house to collect the said balance amount of Rs 100/-. When the CRL. A. 52/93 Page No.7 of 10

8 demand was made, the appellant Parmesh Kumar picked up a quarrel and started abusing them. Aditya told him as to why he was abusing him when the dispute was actually between the appellant and PW10 Anil Kumar. Supposedly, on this statement, the appellant got so enraged that he went inside his house and brought out a pair of scissors which he held in the strange manner, as indicated above, and then gave one blow on Aditya s chest which started bleeding and Aditya became unconscious and fell down. In such a situation, PW10 Anil Kumar did nothing. He neither helped his friend Aditya in trying to avoid the scissors blow nor did he raise any alarm. Instead, he left Aditya in an unconscious condition and went away at a distance of about half a kilometer to hire a three-wheeler scooter from the road. It must be visualized that all this while Aditya was left on the ground on his back (according to PW10) outside the appellant Parmesh Kumar s house which was one of the passages in the J.J Colony. In this time, which was five minutes according to PW10 Anil Kumar, nobody encountered the injured Aditya lying on the ground in an unconscious state. This is all the more surprising because of the alleged time of occurrence being 9 O Clock in the morning and the location being a passage on which there were jhuggis on both sides in a densely populated J. J Colony. Anyhow, the injured Aditya, who was lying in an unconscious condition, was left there alone and the appellant Parmesh Kumar, if he really intended to kill him, had full opportunity to do so. But that did not happen. 18. Then, as per the testimony of PW10 Anil Kumar, he returned to the place of occurrence with the three-wheeler scooter. There was nobody else at that point of time. With his bare hands he lifted the injured Aditya, who was still unconscious and placed him in the rear seat of the three-wheeler scooter. It is also important to note that the prosecution has not produced the scooter driver or even given the registration number of the three-wheeler scooter. One can easily visualize how difficult it is for a single person to lift an unconscious person in his arms. It is even more difficult to visualize as to how a person can lift an injured person, who is bleeding, in his arms and not have any blood CRL. A. 52/93 Page No.8 of 10

9 stains on his own clothes. But, this is what has happened according to PW10 Anil Kumar. 19. Furthermore, PW10 Anil Kumar stated that at the time when he took Aditya to the emergency ward, he was still unconscious. He also had no talk with the doctor. If this is the case, then how is it that the MLC Exhibit PW6/A, which was recorded at 10 am on , indicates:- no h/o unconsciousness. The MLC also indicates that the patient is conscious and well oriented to time and place. This clearly indicates that if Aditya was conscious at that point of time, then PW10 Anil Kumar s testimony that Aditya fell down unconscious and was taken to the emergency in an unconscious condition cannot be believed. It is also clear that if PW10 Anil Kumar did not talk to the doctor, as stated by him, and if Aditya was in an unconscious state when he was brought to the emergency ward, then how does the MLC Exhibit PW6/A indicate alleged h/o stab injury in part of left side of chest by a pair of scissors. 20. While PW9 ASI Bal Kishan, the person who recorded the statement of Anil Kumar Exhibit PW9/B, stated that there was blood at the spot, i.e., place of occurrence, this has been negated / controverted by the Investigating Officer PW21 Mehar Chand, who stated in his cross-examination that there were no blood marks at the spot nor was the spot photographed. In any event, no sample of the blood stained soil was taken. This also makes the place of occurrence uncertain. 21. Apart from this, there is also the question of motive. Of course, there have been cases where courts have convicted the accused despite there not being a clear or established motive, but those are cases where there is clear undented ocular testimony or other such evidence to establish the guilt of the accused. Where the ocular testimony is dented or is not believable, even partially, motive becomes a relevant factor. In the present case PW10 Anil Kumar is the alleged sole eye witness. His testimony does not inspire confidence and, therefore, the question of motive attains importance. What was the motive for appellant Parmesh Kumar to have intended to kill the deceased Aditya? CRL. A. 52/93 Page No.9 of 10

10 Aditya and Parmesh Kumar had no prior dealings. The appellant Parmesh Kumar was PW10 Anil Kumar s father s ex-tenant. The alleged sum of Rs 100/-, which was due, was from appellant Parmesh Kumar to PW10 Anil Kumar s father. The deceased Aditya had nothing to do with it. In our view, there was no motive for the appellant Parmesh Kumar to have caused the death of deceased Aditya. We may also note that even as per the prosecution the only purported reason as to why the appellant Parmesh Kumar stabbed Aditya with the pair of scissors was because Aditya told him as to why he was abusing him (Aditya) when the dispute was between the appellant Parmesh Kumar and PW10 Anil Kumar. Apparently, this got the appellant Parmesh Kumar so enraged that he went inside his house and returned with a pair of scissors with which he gave a blow on Aditya s chest. This, to us, does not constitute a reason enough or motive enough to cause the death of Aditya. It must also be pointed out at this juncture that when the appellant Parmesh Kumar went inside his house, both Anil Kumar and Aditya had ample opportunity of escaping and running away. We must also keep in mind the fact that PW10 Anil Kumar and Aditya are the ones who are alleged to have gone to the appellant Parmesh Kumar s house without any prior information and, therefore, there cannot even be an allegation that the appellant Parmesh Kumar was waiting for them and was ready with a plan or an intention to assault them. 22. All the above circumstances lead us to only one conclusion and that is that the conviction of the appellant Parmesh Kumar cannot be sustained. The appeal is, therefore, allowed. The impugned judgment and/ or order on sentence are set aside. The appellant s bail bond is cancelled and the surety stands discharged. Sd./- BADAR DURREZ AHMED, J March 06, 2009 Sd./- V.B. GUPTA, J CRL. A. 52/93 Page No.10 of 10