NARESH KUMAR Vs. STATE OF DELHI

JUDGEMENT

(1.) Births of crimes and culprits concerned, occur together. Yet, under the criminal justice delivery system only on concluding findings on commission of the crime concerned in the affirmative, the question whether the accused is its culprit would arise. Culpability can be fixed, if at all it is to be fixed, on the accused upon conclusive proof of the same established by the prosecution only after following various procedural safeguards recognizing certain rights of an accused. Failure to comply with such mandatory procedures may even vitiate the very trial, subject to the satisfaction of conditions, therefor. Foremost among one such right is embedded in Sec. 313 of the Code of Criminal Procedure, 1973 (for short the 'Cr.PC'). Though questioning under clause (a) of sub-Sec. (1) of Sec. 313, Cr.PC, is discretionary, the questioning under clause (b) thereof is mandatory. Needless to say, a fatal non-compliance in the matter of questioning under Clause (b) of sub-sec. (1) thereof, in case resulted in material prejudice to any convict in a criminal case the trial concerned, qua that convict should stand vitiated. This prelude becomes necessary as in the captioned appeal the main thrust of the argument advanced is founded on fatal, non-compliance in the matter of questioning under Sec. 313, Cr.PC, qua the appellant who is a life convict. We will dilate on this a little later.

(2.) The appellant, who was accused No.4 in Sessions Case No.3/97 is challenging the confirmation of his conviction under Sec. 302, IPC, with the aid of Sec. 34, IPC, under the impugned judgment in Criminal Appeal No.540/2000 dtd. 20/12/2016 passed by the High Court of Delhi. As per the prosecution, an argybargy over spilling of drops of water over the roof of the appellant's house while Laxmi, the sister of the deceased-Arun Kumar was cleaning the chajja (parapet) of their house resulted in the accurst incident, where the said Arun Kumar lost his life on 14/6/1995 at 08.45 pm. The case of the prosecution is that enraged by the dropping of water over the roof, the wife of the appellant, namely, Meena, hurled filthy words at Laxmi. Then the appellant came out and he, too, started abusing. Thereupon, the deceased asked him to stop abusing his sister and then the appellant exhorted his brother Mahinder Kumar to come out and finish them. Soon, Mahinder came out with a knife and the appellantNaresh Kumar caught hold of Arun Kumar and Mahinder stabbed on his chest repeatedly with the knife. The necroscopic evidence in this case consists of the oral testimony of PW-17, Dr. LK Baruah and the postmortem report Ext.PW7/A, which disclosed that the deceased had sustained the following antemortem injuries:

(3.) Taking note of the said necroscopic evidence corroborating the events unfolded through the oral testimonies of the eye-witnesses viz., Anil Kumar (PW-7), Smt. Prem Devi (PW-8), Sanjay (PW-20), who are respectively the brother, mother and one cousin of the deceased and Smt. Madhu (PW-19) and Anand Kumar (PW-22) besides the other evidences, the trial Court found that the homicidal death of Arun Kumar amounts to murder and culpability was fixed on Mahinder Kumar, the first accused. We make it clear that we are not going to make any observation in respect of Sri Mahinder Kumar in this appeal and reference about him was made solely for the purpose of disposing this appeal.