Laxman S/O Pratap Singh vs The State (Delhi Admn.)
2005 Latest Caselaw 527 Del

JUDGMENT

Mukundakam Sharma, J.

1. By this common judgment and order, we are disposing of the two criminal appeals, namely, Crl.A. No. 348/1997 filed by Laxman and Crl.A. No. 354/1997 filed by Shyam. Both the aforesaid persons were chargesheeted for committing an offence under Sections 302/307/34 IPC.

2. The case of the prosecution in brief is that on 10th January, 1992 around 7.00 P.M one Chander Bhan was lying in a drunken condition near the railway line beneath Pul Bangash, Subzi Mandi. Jagdish, PW3, a neighbourer of Chander Bhan was passing by the said place at that relevant time and he saw both the appellants/accused Shyam and Laxman searching the person of Chander Bhan. On seeing the same, Jagdish protested against the conduct of the accused and took Chander Bhan along with him to his house. It is alleged that the two accused persons, however, removed the Identity Card of Chander Bhan from his pocket. It is alleged that when Jagdish took Chander Bhan to his house, Sat Pal and Brahm Pal, sons of Chander Bhan, were present at the house and Jagdish told them that the identity card of their father had been taken by the two accused persons at the railway line. Thereafter, Brahm Pal and Jagdish went to the market and purchased some liquor bottles and while they were coming back they saw Sat Pal talking to the accused persons. On Brahm Pal asking Sat Pal as to why he was talking to them, accused Shyam took Sat Pal in his grip and exhorted his companion to stab him. Laxman stabbed Sat Pal in the left portion of his chest. When Brahm Pal intervened, accused Shyam exhorted his companion to stab him also and thereupon Laxman stabbed Brahm Pal on the chest and abdomen. Jagdish raised alarm and when people from the locality rushed to the spot, accused Laxman ran away whereas accused Shyam was apprehended at the spot. Jeetan Ram and Vinkesh took the injured brother to the Hindu Rao Hospital. Accused Shyam, who was apprehended at the spot, was handed over to the police.

3. The police after registering a case started investigation and during the course of the same, the police arrested Laxman. On the basis of the disclosure statement made by Laxman the police recovered certain articles, namely, the weapon of offence , the identity card of Chander Bhan and his blood stained shawl from the roof of Young Man Club. The said articles were sealed and were taken in possession. After completion of the investigation the police submitted a chargesheet under Section 302/304/34 IPC. Charges were framed as against both the appellants to which they pleaded not guilty and claimed to be tried.

4. During the trial, the prosecution examined 20 witnesses in support of its case. Jagdish , who had initially seen the accused persons searching the person of Chander Bhan and taking out the identity card from him, was examined as PW3 whereas the injured Brahm Pal was examined as PW4. Both of them also happened to be the eye-witnesses to the occurrence. PW2 and PW5, namely, Vinkesh and Jeetan Ram arrived at the spot immediately after the incident. They are the persons who took the injured to the hospital. PW16 and PW19 are the witnesses, who were examined to prove the recovery at the instance of the accused persons. After completion of the trial, the learned Additional Sessions Judge delivered his judgment holding both the accused persons guilty of the offence punishable under Section 302/34 IPC for committing murder of Sat Pal. He also held them guilty under Section 307/34 IPC for attempting to murder Brahm Pal. The learned Additional Sessions Judge by his separate order dated 4th April, 1997 sentenced both the accused persons to undergo rigorous imprisonment for life and to pay a find of Rs.500/- each as fine for committing murder of Sat Pal under Section 302/34 IPC. They were further sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.500/- each as fine for attempting to commit murder of Brahm Pal under Section 307/34 IPC. In default of payment of fine they were directed to under rigorous imprisonment for a further period of six months.

5. Being aggrieved by the aforesaid judgment and order, the present appeals were filed from jail. As the appellants were not represented, we appointed Mr.Sumit Verma, Advocate as an amices curiae to represent both the accused persons. He argued both the appellants before us extensively and had taken us through the entire evidence on record. He has mainly advanced threefold submissions before us. His first submission was that the identity of the accused persons was doubtful as it was dark when the alleged incident had taken place and, therefore, test identification parade having not been held in this case, the conviction and the sentence of the appellants is required to be set aside and quashed.

6. He next submitted that the recovery of the weapon of offence and other articles from a crowded place accessible to all and there being contradictions in the evidence of the witnesses regarding the place from which it was recovered, the said recovery is not believable and is doubtful and, therefore, no reliance should be placed on such allegations of recovery of articles at the instance of the accused persons.

7. He next submitted that the evidence adduced by the witnesses are contradictory and conflicting in nature and, therefore, no reliance should have been placed on such unreliable and untrustworthy evidence and on the basis thereof both the accused persons should have been acquitted by the learned trial court. It was also submitted that ,at any rate , no case under Section 302 IPC is made out as against Shyam, one of the accused inasmuch as the only allegation against him is that he had exhorted with the words ' maar saale ko' and caught hold of the deceased from behind.

8. For appreciating the aforesaid contentions we have carefully scrutinised and analysed the evidence on record. PW-3, Jagdish, is an eye-witness to the occurrence along with PW-4 Brahm Pal, who was an injured person. He has stated in his examination-in-chief that his relative Chander Bhan, who has since expired, was surrounded by the two accused persons, who were taking search of Chander Bhan and when questioned by him the two accused persons as to what they were doing with Chander Bhan, they replied that they were colleagues of Chander Bhan. The said witness took Chander Bhan with him and called Brahm Pal for help and he along with Brahm Pal took Chander Bhan to the house of PW-3. It is also stated by him that he and Brahm Pal went to the 'theka' of country liquor and while they were returning they saw that Sat Pal was having some talk with the accused persons under Pul Bangash. It is also stated by him that when they reached near them and when Brahm Pal rebuked his brother Sat Pal as to why he had come over there, accused Shyam exhorted Laxman 'maar saale ko'. Said PW3 further deposed that Shyam caught hold of accused Shyam when Laxman stabbed Sat Pal with a churi on his chest and that he also stabbed Brahm Pal on lower portion of abdomen. That after stabbing, Laxman ran away whereas accused Shyam was apprehended on the spot by PW3. The said witness was cross-examined extensively by the counsel appearing for both the accused persons. He also stated that the accused Laxman disclosed that the knife and the identity card of Brahm Pal were hidden by him in the 'rain basera' opposite railway station and that accused Laxman led him and the police to the 'rain basera' and he produced a double edged knife, the identity card of Chander Bhan and bedsheet from a quilt in the 'rain basera'. He had stated in the cross-examination that the incident had taken place at about 7.00 P.M and it was not very dark. He also stated that as soon as Sat Pal was stabbed, he caught hold of accused Shyam and that accused Laxman ran away.

9. PW4, Brahm Pal, is the injured and the brother of the deceased Sat Pal. He stated that on the date of the incident Jagdish came to his house and told that his father, Chander Bhan, had been detained by two persons and when he went to Pul Bangash his father was lying. He along with Jagdish brought his father Chander Bhan to his house. He further deposed that thereafter, he went to the market and while they were coming back, they saw both the accused persons standing near the railway track with his brother Sat Pal. Jagdish told him that the two accused persons were the same, who were searching the person of their father and when his brother Sat Pal asked the accused persons as to why they had done so, accused Shyam exhorted 'maar saale ko'. After uttering the said words, accused Shyam caught hold of his brother from behind and the accused Laxman stabbed on the left side of chest of his brother with a knife. He further stated that since it was dark he could not identify the knife. He also stated that after stabbing his brother, accused Laxman ran away and when he tried to apprehend him, accused Laxman stabbed him also with the same knife on the lower portion of his abdomen and thereafter he ran away. Accused Shyam was apprehended by Jagdish and that thereafter he and Sat Pal were taken to the hospital where Sat Pal succumbed to the injury. He was also cross-examined extensively by the accused persons. He stated that while he was returning from the liquor shop, which was at a distance of about one kilometer from his house, he saw Sat Pal along with two accused persons. He also stated that there was no light at that place and it was quite dark. He stated that accused Shyam could not run and he was over powered at the spot itself.

10. In view of the nature of the aforesaid evidence adduced by the two eye witnesses, a plea was taken by the counsel appearing for the appellants before us that as it was dark when the alleged incident had taken place and ,therefore, the identity of the appellants could not have been established and since no test identification parade was held, both the accused persons are required to be acquitted. We have considered the aforesaid submission of the counsel appearing for the appellants. Both PW3 and PW4 have categorically stated that it was Shyam, who exhorted by uttering the words 'maar saale ko' caught hold of the deceased from behind whereupon accused Laxman gave a dagger blow on the left side of the chest of the deceased Sat Pal. The vivid description of the incident by both the eye-witnesses corroborate with each other, on all relevant aspects. The said description of the manner in which the incident had happened and as to how the dagger blow was given and injury was caused is corroborated by the medical evidence available on record. PW4 is the injured person and no enmity is proved between the accused persons and the deceased and the injured and, therefore, there could be no reason for PW4 to implicate the accused persons falsely. An injured person would always desire and make an endeavor to see that the real culprit is apprehended and is punished in accordance with law. Both the eye-witnesses have categorically stated that it was Laxman, who had given the dagger blows on the left side of the chest of the deceased Sat Pal and, therefore, no contradiction whatsoever could be pointed out in their statements to disbelieve their statements. We accordingly hold that the statements of the said eye-witnesses in respect of the manner in which the incident had occurred and the role of the two accused persons are found to be reliable and trustworthy.

11. One of the accused persons, namely, Shyam was apprehended at the spot itself by PW3, Jagdish and there is no denial to the aforesaid fact whereas accused Laxman was arrested by the police during the course of investigation after accused Shyam led the police party to majnu-ka-tilla where accused Laxman was apprehended. Thereupon weapon of the offence, the identity card of Chander Bhan and bedsheet were recovered from a quilt at the instance of Laxman. He made a disclosure statement and after making the said statement he led the police party to the place where the aforesaid articles were hidden and the same were recovered and seized by the police at the instance of accused Laxman. The said part of the disclosure statement is admissible under the provisions of Section 27 of the Evidence Act. However, a plea was raised by the counsel appearing for both the appellants regarding the place of recovery of the said articles. He contended that according to PW3 said articles were recovered from the 'rain basera' whereas according to PW4, PW16 and PW19 the same were recovered from the Youngman Club. According to the learned counsel, the two places mentioned by the two witnesses as the place from which recovery of articles was made, therefore, the said fact of recovery of articles should have been disbelieved. We have given our anxious consideration to the aforesaid submission of the counsel appearing for the appellants.

12. PW16 and PW 19 categorically stated that all the aforesaid articles, namely, the weapon of offence, the identity card of Chander Bhan and the bedsheet were recovered from a quilt, which was hidden in the Youngman Club, which is situated just opposite the Old Delhi Railway Station. The said witness also stated that accused Laxman disclosed that he had hidden the dagger and the identity card of Chander Bhan at the roof of Youngman Club at S.P.Marg and thereafter he led the police party to the Youngman Club and there he produced the dagger, identity card of Chander Bhan and a woolen shawl of light red colour bearing blood stains from the space between the roof and the jaali. The evidence of PW 16 and PW19 in respect of the fact of recovery of the said articles tally with each other and there is no discrepancy at all. However, PW3, who was also present with the recovery party, stated that the aforesaid articles were recovered from the 'rain basera. Considering the evidence on record, we cannot hold that 'rain basera' and Youngman Club are two different places, for no such evidence exists on the record of the case. There is a map placed on record, which is proved as Ex.PW19/A, in which Youngman Club is shown, which is located near the MCD office. In the said map there does not exist any 'rain basera'. The same is proved. A sketch map of the place of recovery is also placed on record and is proved as Ex.PW19. PW3 has stated that the knife and the identity card of Chander Bhan was hidden by him in the 'rain basera' opposite Old Delhi Railway Station, which was pointed out by the accused Laxman.

13. After considering the entire evidence on record, we cannot disbelieve the statements of PW16 and PW19 to the effect that the aforesaid articles were recovered at the instance of the accused Laxman from Youngman Club only because PW3 has stated that the same were recovered from the 'rain basera'. It is nowhere stated that the 'rain basera' and Youngman Club are two different places. On the other hand, the evidence adduced disclose that Youngman Club is also located just opposite the Old Delhi Railway Station like the 'rain basera' and, therefore, when the PW3 stated that the aforesaid articles were recovered from the 'rain basera' what he meant was that it was recovered from the said place, which was also known as Youngman Club. Therefore, the aforesaid statement of the counsel appearing for the appellants raising doubt about the place of recovery of the articles is also found to be without any basis.

14. On going through the entire evidence on record, we find that there is no contradictions in the evidence adduced by the witnesses, which belies the prosecution case and there are two eye-witnesses to the occurrence , who have categorically stated that accused Laxman gave the vital blow to the deceased by the dagger, which was later on recovered at his own instance and he had done so on the exhortion of accused Shyam, the co-accused and one of the appellants herein. Stabbing of PW4 by Laxman is also proved by the eye-witnesses and supported by the medical evidence. Shyam was apprehended at the place of occurrence immediately after the occurrence. It is, however, true that apart from exhorting the words ' maar saale ko' and catching hold of the deceased from behind, no other role is ascribed in the evidence as against accused Shyam.

15. We may, at this stage, appropriately refer to two decisions of the Supreme Court in which the Supreme Court had the occasion to deal with similar facts. In the case of Matadin and Anr. v. State of Maharastra , one of the appellants, namely, Matadin exhorted his fellows by saying 'maro sale ko' and thereafter the other accused stabbed the deceased, which resulted in his death. In the said background of the case, the Supreme Court held that even after the said words were used by the Matadin in an abusive way, but from that it could not be said that he exhorted his fellows to kill the deceased. In the said case, conviction of Matadin was lowered from Section 302/34 IPC to Section 324/110 IPC and his sentence was reduced to imprisonment for the period already undergone by him. In the second case, in Ajay Sharma v. State of Rajasthan reported in 1999 SCC (Cri) 74, the expression used by one of the accused was 'maro'. On the said fact the Supreme Court held that by saying 'maro' it cannot be said that there was a common intention to kill the deceased and that since the appellant only said 'maro' which did not mean 'to kill', therefore, he ought not to have been convicted under Section 302 read with Section 34 IPC. The Supreme Court accordingly convicted him under Section 324 read with Section 110 IPC and sentenced to the period already undergone.

16. In the present appeals, so far accused Laxman is concerned, he used the dagger and stabbed the deceased on the left side of his chest and also the injured (PW4) on the abdomen, which was stated both by PW-3 and PW4. The narration of events of the incident by the two eye-witnesses corroborate with each other on all material particulars. The injuries stated to have been caused by the accused persons on the deceased and the injured are supported by the medical evidence. The said blow on the deceased was sufficient in the ordinary course of nature to cause death. Therefore, we hold that the other appellant, namely, Laxman is guilty under Sections 302/34 IPC and also under Section 307/34 IPC. His conviction and sentence under Section 302/34 IPC and Section 307/34 IPC is, therefore, upheld whereas the conviction and sentence of accused Shyam is altered to Section 324/110 IPC from Section 302/34 IPC and also under Section 307/34 IPC and he is sentenced to imprisonment for the period already undergone. He shall be set at liberty forthwith unless he is wanted in any other case. So far the appellant Laxman is concerned, his conviction under Section 302/34 IPC and sentence for life and under Section 307/34 is upheld. He shall serve out the remaining period of sentence. Both the appeals stand disposed of in terms of the aforesaid order.