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1997 Supreme(Del) 832
DELHI HIGH COURT
Y. K. SABHARWAL AND A. K. SRIVASTAVA, JJ.
SUBHASH ALIAS BASSI
VERSUS
STATE (DELHI ADMN.)
Crl. A. Nos. 50/94 and 77/94,
Decided on : 1-10-1997.
Important Points
Subject
Criminal Law - APPEAL
Act Referred
INDIAN PENAL CODE : S.323, S.506, S.325, S.324, S.302, S.149, S.34, S.307, S.147
Headnote
CRIMINAL APPEAL - FACTUAL DISPUTE - SOLE WITNESS TESTIMONY - RELIABILITY - CORROBORATING EVIDENCE - MEDICAL EVIDENCE - DELAY IN REPORTING - FIR - INVESTIGATION DEFECTS - CONVICTION AND SENTENCE - MAINTENANCE.
Fact of the Case:
Two accused, Subhash and Niranjan, appealed their convictions and sentences for the murder of Shyam Lal and the assault of Surender Kumar. The prosecution's case was that the accused, along with three others, attacked the victims with knives, hockey sticks, and sticks after a quarrel at a Lohri festival. The main issue was whether the sole eyewitness, Surender Kumar, could be believed, as the other alleged eyewitnesses had turned hostile.
Finding of the Court:
The court found that the testimony of Surender Kumar was truthful and reliable, despite some inconsistencies between his statement under Section 161 of the Code of Criminal Procedure and his testimony in court. The court also found that the prosecution had proved its case beyond a reasonable doubt and that the defects in the investigation were not so material as to demolish the prosecution case.
Issues: 1. Whether the testimony of the sole eyewitness, Surender Kumar, could be believed. 2. Whether the prosecution had proved its case beyond a reasonable doubt. 3. Whether the defects in the investigation were so material as to demolish the prosecution case.
Ratio Decidendi: 1. The court held that the testimony of Surender Kumar was truthful and reliable, despite some inconsistencies between his statement under Section 161 of the Code of Criminal Procedure and his testimony in court. The court found that Surender Kumar was an injured witness who had been examined by a doctor soon after the alleged incident, and that there was no reason to disbelieve him unless there were cogent reasons to do so. 2. The court held that the prosecution had proved its case beyond a reasonable doubt. The court found that there was ample evidence on record to prove that the FIR had not been anti-timed, that there were no material contradictions, and that the investigation had not been defective so as to demolish the prosecution case. 3. The court held that the defects in the investigation were not so material as to demolish the prosecution case. The court found that the defects were technical and other defects that did not demolish the prosecution case itself.
Final Decision: The court dismissed the appeals and maintained the convictions and sentences of the appellants.
A. K. Srivastava, J. :- These two appeals filed by two convicts against one judgment and order passed by Shri P.K. Dham, Additional Sessions Judge, Shahdara, Delhi in Sessions Trial No. 105/86 arising from FIR No. 18/86 under Section 147/506/149/302/149/307/409, IPC, police station Krishna Nagar, are being decided by this common judgment and order.
2. In the said sessions trial four accused persons, namely, Subhash @ Bassa, Ashok @ Chhidi, Niranjan and Babu were tried. By the impugned judgment and order, Niranjan has been convicted under Sections 302 and 324, IPC, Ashok @ Chhidi and Babu have been convicted under Section 323 read with Section 34 of IPC and Subhash has been convicted under Section 325 of IPC.
3. Out of the above four persons convicted, Subhash @ Bassa and Niranjan only have filed these appeals being No. 50/94 and 77/94 respectively.
4. The case of the prosection before the lower Court was that on the night of 13th January, 1986 Lohri festival was being celebrated at the house of one Anil Khanna where besides others Anil. Brijesh, Shyam Lal, Ram Gopal and Surender were present. In that festival ladies of the family were dancing. At about 8 O'clock in the night accused Niranjan started dancing with the ladies which was objected to by the male members resulting in a quarrel.
5. Accused Niranjan along with Babu, Chhidi @ Ashok, Subhash @ Bassa and Harkesh left the aforesaid place of Lohri festival and went away. At about 9.30 P.M., when Brijesh, Om Prakash, Shyam Lal, Surender Kumar and Anil were returning to Chandni Chowk from the aforesaid place of Lohri festival and when they had reached near Shiv Mandir, Shankar Nagar opposite the shop of Shiv Halwai, accused persons Niranjan, Subhash @ Bassa, Ashok @ Chhidi, Babu and Harkesh ghehraoed them. Niranjan was armed with a knife, Subhash @ Bassa was armed with a hockey and the rest three were armed with dandas. it is said that accused Niranjan stabbed Surender and accused Subhash attacked with hockey and the rest attacked with dandas. After injuring Subhash and Surender, the accused persons fled away after giving threat of dire consequences if any report was lodged with the police.
6. In the aforesaid incidence, Surender and Shyam Lal received injuries, Shyam Lal succumbed to the injuries on 18th January, 1986.
7. Injured Shyam Lal was examined in the Hindu Rao Hospital on 14th January, 1996 at 1 A.M. in the night by Dr. V.K. Goel, who found the following injuries :-
"(i) Two 1" long stitched wond on the left side of chest in the seventh intercostal space, one in the anterior auxillary line and the second was posterior auxillary line. Surgical emphysema was present and air entry was diminished in the left side.
(ii) Incised wound on left fore-arm.
(iii) Tenderness at the middle third of right leg."
8. After Shyam Lal died, post-mortem of his dead body was made by Dr. L.T. Ramani, P.W. 15 and he found the following injuries :-
"i) Stitched wound 2" long placed antero-posteriorly on the vault of the skull.
ii) Stitched wound 1" long placed vertically in the left auxillary line 6" below the armpit.
iii) Small 1 incised wound half an inch x one and one fourth inch x depth placed transversely on the left side of chest wall in midauxllary line 7" below the armpit.
iv) Small incised wound of 1/4" x 2/10" x skin deep size on the left side of the chest one and one fourth inch below injury No. 2.
v) Drainage wound with a corrugated drain on the left lumber were abdomen (operational).
vi) Laportomy stitched wound 7" long, left paramedain present between xiphold process and umbilicus (Operational).
vii) Superficial incised wound 3/4" x 1/4" x 1/4" skin deep on the back of the left forearm middle. The edges were regular and both ends were equal.
viii) Bruise 2" x 2" with swelling on the dersem on left hand.
ix) Swelling on the dersem of right hand.
x) Small laceration 1/2" x 1/4" x bone deep on the front of right leg skin with bruising around the fracture of shaft of right tibia.
xi) Two sti
