Delhi High Court
Chaman And Anr.(Raju) vs State on 19 December, 2008
Author: Vikramajit Sen
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. A.494/1998
#CHAMAN AND ANR. (RAJU) .....Appellant
Through: Mr. D.P. Sharma, Adv.
versus
$STATE ...... Respondent
^ Through: Mr. Sunil Sharma, APP
WITH
CRL. A. 180/1999
OM SINGH .....Appellant
Through: Mr. Sanjay Jain, Sr. Adv./
Amicus Curiae with
Ms. Nitika Mangla,
Mr. Sumit Rajput &
Mr. Sarfaraz Ahmad, Advs.
versus
STATE ..... Respondent
Through: Mr. Sunil Sharma, APP
Date of Hearing : December 05, 2008
% Date of Decision : December 19, 2008
CORAM:
* HON‟BLE MR. JUSTICE VIKRAMAJIT SEN
HON‟BLE MR. JUSTICE V.K. SHALI
1. Whether reporters of local papers may
be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be
reported in the Digest?
Crl.A.180/99 Page 1 of 72
VIKRAMAJIT SEN, J.
JUDGMENT
1. These Appeals assail the Judgment dated 4.9.1998
pronounced by the Additional Sessions Judge, Delhi by which
the Appellants/Convicts had been found guilty of an offence
punishable under Section 302 read with Section 34 of the Indian
Penal Code (IPC). Vide Orders dated 5.9.1998 the Appellants
have been sentenced to undergo Life Imprisonment along with a
fine of Rupees 15,000/- each and in default of payment to
undergo Rigorous Imprisonment for one year.
2. According to the Prosecution, at approximately 8:00 P.M.
the Police had received telephonic information that Devender,
son of Prem Singh, aged 35 years, resident of A-1/418, Nand
Nagri, Delhi had been stabbed with a knife (the murder weapon)
in the A-1 Market, Nand Nagri, Delhi and had been admitted in
Guru Teg Bahadur Hospital, Dilshad Garden, Delhi (GTB
Hospital for short) by his brother, Ramesh. DD Entry Number
56B dated 19.8.1990 was accordingly recorded. Subsequently,
FIR No.218 dated 19.8.1990 under Sections 302/34 IPC P.S.
Nand Nagri, Delhi was registered.
3. The FIR records that while the Inspector was on patrolling
duty he was handed over DD No.56B by Sub-Inspector
Mahendra Singh. He reached GTB Hospital and obtained
Medico Legal Certificate (MLC) No.2129/1990 and also
recorded the following statement (as translated by Court
officials) of Rakesh, son of Prem Singh, resident of A-1/418,
Nand Nagri, Delhi:
That my brother Devender was consuming liquor while
sitting at the meat shop of Raghu Rai along with Om
Singh, Chaman, Raju and Arvind Dubey. When I for the
purpose of calling my brother went to the aforesaid
meat shop, I found that Arvind Dubey and Om Singh
were quarrelling with each other on the issue of a
watch. After that, Om Singh, Chaman and Raju, all the
three altogether first gave kick and fist blows to
aforesaid Arvind Dubey and made him fall on the
ground and thereafter, the aforesaid Om Singh whipped
out a knife from the right pocket of his wearing (pants)
and gave knife blows to said Arvind Dubey as a result
whereof a lot of blood oozed out from the body of Arvind
and the aforesaid Arvind Dubey died there itself. When
my brother Devender asked the said Om Singh not to do
the same, the aforesaid Chaman and Raju immediately
caught hold of my brother Devender and Om Singh gave
knife blows to my brother Devender. Consequently, the
blood started oozing out from the body of Devender.
After that, I raised an alarm and on hearing my alarm
my elder brother, Ramesh also came to the spot and we
both brothers immediately removed our brother
Devender to GTB Hospital in a TSR and got him
admitted there. Thus, the aforesaid Arvind Dubey, s/o
Narayan Das, r/o ______(torn) 612, Gali No.13, Mandoli
Extn. had died at the spot itself and the death of
Devender, s/o Prem Singh, r/o A-1/418, Nand Nagri,
Delhi had occurred in the night at about 12:00 o‟clock.
4. Thereafter, the Chargesheet dated 28.10.1990 was filed,
the relevant column (Charge or Information) of which reads as
under:
Sir,
It is submitted that on 19.8.1990 I, the
Inspector, was present at 100 Feet Road, Nand Nagri
while patrolling for the prevention of crime alongwith
the staff by means of a government vehicle. During the
aforesaid patrolling Shri Mahender Singh, Sub
Inspector, along with Constable Kishan Chand Number
569/NE met me and told me the facts and
circumstances regarding copy of report No.56B dated
19.8.1990 of Police Station Nand Nagri whereupon I,
the Inspector along with S.I. Mahender Singh and other
staff members reached GTB Hospital where I obtained
the MLC No.2129/1990 belonging to Devender Singh,
s/o Prem Singh, resident of A-1/418, Nand Nagri on
which the Doctor had mentioned the injuries "not fit for
statement." After that, Rakesh, s/o Prem Singh,
resident of A-1/418, Nand Nagri, Delhi met me there
and got his statement recorded which is as under:
I along with my family reside at the aforesaid address
and I do the lathe work in B-Block, Nand Nagri.
Today at about 7:45 P.M., I had gone to meat shop of
Raghu Rai to call my brother, Devender therefrom to
the house who was consuming liquor while sitting
there along with Om Singh, Chaman, Raju and Arvind
Dubey alias Ballu who were already known to me.
After reaching there, I found that the aforesaid
Arvind Dubey and Om Singh were quarrelling with
each other on the issue of a watch. Immediately
thereafter, the aforesaid Om Singh, Chaman and
Raju altogether gave leg and fist blows to the said
Arvind Dubey first and made him fall on the ground
and immediately thereafter, the aforesaid Om Singh
whipped out a knife from the right pocket of his
wearing (pants) and gave knife blows to the said
Arvind Dubey as a result whereof the blood started
oozing out from the body of the said Arvind Dubey
profusely and the said Arvind Dubey died there itself.
On this, when my brother Devender asked the said
Om Singh not to do the same, the aforesaid Chaman
and Raju immediately caught hold of my brother,
Devender and Om Singh gave knife blows to my
brother Devender also. As a result whereof my
brother, Devender, fell down on the ground and
blood started oozing out from his body whereupon,
when I raised an alarm, my brother, Ramesh, also
came at the spot and we both brothers brought our
brother Devender in GTB Hospital in a TSR. The
aforesaid all the three, namely, Om Singh, Chaman
and Raju have altogether killed the said Arvind
Dubey and have caused severe injuries to my
brother, Devender also. Legal action may be taken
against all the three persons. I have heard the
statement and the same is correct".
Police Proceedings
The contents of the foregoing statement and the
inspection of the MLC reveal that commission of an
offence under Section 307/302/34 IPC. On the basis of
aforesaid statement a writing was prepared and sent
through Constable, Ashok Kumar No.989/NE to the
Police Station for the purpose of registration of a case
and the aforesaid case was got registered. Thereafter,
I, the Inspector, alongwith accompanying staff
members and the Complainant, Rakesh, had left for the
spot and I myself investigated the case. During
investigation, I, the Inspector, had prepared the site
plan after inspecting the spot and got the spot
photographed by a government photographer. The
Crime Team also came to the spot. As per the
instruction of the Crime Team, the blood smeared soil
and sample soil had been lifted from near the dead
body of the deceased, Arvind Dubey and after keeping
the same into separate phials, these were converted
into a parcel. The blood smeared soil and sample soil
were also lifted from near the place where the blood of
injured Devender was lying and these were also
converted into a parcel after keeping the same into
separate phials and after that these parcels were taken
into police possession and the statement of the
witnesses were recorded. After that, the Inquest papers
regarding the said deceased, Arvind, were prepared
and since it was late hours, so the post-mortem
examination was got conducted on the next morning.
On 20.8.1990 the aforesaid injured, Devender Kumar,
had died in GTB Hospital whereupon, the inquest
papers of Devender Kumar, the deceased, were also
prepared and the post-mortem examination was got
conducted on his dead body also. The dead bodies (?)
were handed over to their heirs after the post-mortem
examination. After that, the aforesaid accused persons,
namely, Om Singh, Chaman and Raju were searched.
On 20.8.1990 the aforesaid accused persons, namely,
Om Singh, s/o Shri Sharwan Kumar, Raju alias Githa,
s/o Shri Atar Singh and Chaman Lal, s/o Shri Mithan
Lal were arrested in the aforesaid case. During their
arrest, the disclosure statement of all the three accused
persons, namely, Om Singh, Raju alias Githa and
Chaman Lal were recorded separately. All the aforesaid
three accused persons had disclosed that on 19-8-90 at
about 7:45 P.M. in the evening they all the three
alongwith the aforesaid Devender and Arvind Dubey
had altogether consumed liquor while sitting at the
meat shop of Raghu Rai situated at A-1, Nand Nagri
and that during discussion there itself, an altercation
had ensued on the issue of a watch whereupon, the
aforesaid Om Singh immediately whipped out a knife
from the right pocket of his wearing (pants) and gave
knife blows to Arvind and Devender and further that
Raju and Chaman both had caught hold of the said
Arvind Dubey and Devender. The aforesaid Arvind
Dubey had died at the spot itself. After the occurrence,
the said Om Singh had thrown his knife near the trees
of Eucalyptus near Gagan Cinema which was recovered
on the point out of Om Singh and it was taken into
police possession and parcels so prepared have been
got deposited in CFSL, Lodhi Estate for the purpose of
analysis. After obtaining the result of the aforesaid
analysis it will be tagged with the file. On the basis of
the investigation conducted so far, the statements of
the witnesses, the facts and circumstances of the case
and the post-mortem report, a lot of evidence have
been obtained which are sufficient to challan the
accused persons, namely, Om Singh, Raju and Chaman
mentioned in Column No.3. On the basis of the
aforesaid evidence of the witnesses mentioned in
Column No.6, a Challan is prepared against the
accused persons, namely, Om Singh, Raju and Chaman
mentioned in Column No.3 and the same is being
submitted. The accused persons are on J/C remand till
09-11-90. Hence, this case may please be heard after
summoning the witnesses. It is prayed accordingly.
Sd/- Illegible
(In English)
S.H.O.
P.S. Nand Nagri
28/10/90
5. The Additional Sessions Judge, Shahdara, charged Om
Singh, Raju and Chaman in these words:- "That, on 19.8.1990 at
about 7:45 P.M. at A-1 Market, near Shop No.9 of Raghu Rai,
Nand Nagri within the jurisdiction of P.S. Nand Nagri, in
furtherance of common intention of you all committed the
murder of Arvind Dubey and Devender and thereby committed
an offence punishable under Section 302 read with Section 34 of
the IPC and within the cognizance of this Court. And I hereby
direct that you be tried by this Court on the said charge".
6. The Appellants pleaded not guilty to the Charge and
claimed Trial. The Prosecution has produced twenty witnesses.
The Defence has examined two witnesses. Shri Des Raj, Head
Constable, has been examined as CW1, for purposes of
declaring Om Singh as a Proclaimed Offender.
7. PW1, Ramesh Kumar, is the brother of the deceased,
Devender. In his Examination-in-Chief he has deposed that
around 7:00 P.M. he had sent his deceased brother, Devender,
to purchase meat from the shop of Raghu Rai (PW2) which shop
is located in A-1 Market, Nand Nagri, Delhi. After some time, as
deceased Devender had not returned, PW1 dispatched his other
brother, Rakesh (PW8), to call Devender. Thereafter, he heard
his brother Rakesh calling out to him. He rushed towards the
shop of Raghu Rai (PW2). He saw his brother, Devender, in an
injured condition lying in a pool of blood alongside the road near
the shop of Raghu Rai. Arvind Dubey was also lying there and
blood was oozing from his injuries, and on feeling his pulse he
concluded that Arvind Dubey was dead. He found his brother
gasping and screaming as a consequence of his injuries. He,
along with PW8, removed Devender to GTB Hospital in a TSR.
PW1 has further stated that he was told by Rakesh (PW8) that
Om Singh, Chaman and Raju had committed the murder of
Arvind Dubey and had inflicted injuries upon Devender; we are
fully mindful that this portion of his testimony may be precluded
from consideration on the ground of it being hearsay. Arvind
Dubey was also taken to the Hospital. In the Hospital, Arvind
Dubey and Devender were declared dead.
8. The salient features of the Cross-Examination of PW1,
inter alia, are that on Sunday 19.8.1990 he was sitting in front
of his house. At that time he was living in his own house. PW1
has denied the suggestion that on that date he was not at home.
At that time his younger brother, Rakesh (PW8), was already
married and lived on the First Floor where PW1 lived and was
employed in Nand Nagri in a lathe workshop where others were
also employed. Devender (deceased) also used to sell his
merchandise (school bags) in weekly pavement bazaars. On
19.8.1990 Devender was not doing business as he had not been
feeling well for 2-3 days; but it was not a serious illness. The
deceased lived in the house adjoining that of PW1 and PW8.
PW1 has also stated that he knew Arvind Dubey, although not
personally. He has denied the suggestion that his house was
situated in the 5th street after the road in front of A-1 Market, at
a distance of half kilometre. He has denied the suggestion that
Rakesh (PW8) had not told him that Om Singh, Chaman and
Raju had murdered Arvind Dubey and had injured Devender.
He has further deposed in Cross-Examination that public
persons were present at the spot but that he could not state how
many for the reason that he was busy in removing his brother to
the Hospital. Both Arvind Dubey and Devender were lying on
the ground with their faces upwards and were smeared with
blood. He and Rakesh (PW8) had lifted Devender into the
backside of a TSR by holding him from his hands and feet. He
kept the head of Devender on his thigh and Rakesh sat in the
front next to the driver. Blood was still oozing out of the wounds
of Devender; however he did not remember whether any blood
stains were received on his clothes or on the clothes of Rakesh
(PW8); these clothes were not given by them to the police. PW1
has denied the suggestion that PW8 was not present at the spot.
He has agreed with the suggestion that he did not join the
Police in any further proceedings after having got his brother
admitted in the Hospital. He has denied the suggestion that he
had ever at any stage stated that Arvind Dubey had been taken
by him or his brother, Rakesh, to the Hospital. Arvind Dubey
was declared dead in the Hospital, although not in his presence.
Importantly, he has stated that -"It is wrong to say that incident
occurred on 18.8.1990 and that we kept on hiding the incident
and kept on getting treatment of my brother privately and that
he was admitted to GTB Hospital on 19.8.1990 only after
knowing that his condition was serious."
9. So far as the evidence of PW 1 is concerned it is important
to underscore the fact that the Defence did not categorically
state that the deceased, Devender, had been injured in some
other incident on 18.8.1990. The manner of the suggestion
made to him is only to the effect that the incident, that is, the
physical assault on the two deceased, Devender and Arvind
Dubey, took place one day prior to 19.8.1990. It is also relevant
to highlight the fact that there was no Cross-Examination of
PW1 on the aspect of whether it was possible for him to have
heard the cries/alarm of his brother, Rakesh (PW8) from his
residence. We cannot appreciate how any advantage can be
gathered by the Defence from putting suggestions to this effect
to other witnesses. For that matter the version that the cries of
PW8 could not have been audible to PW1 has not even been put
to the former. The Defence has made a futile effort to cause
confusion, firstly, with regard to the distance between the place
where the assault occurred and the residence of PW1 and PW8;
and secondly, on whether the alarm/cries of PW8 could have
reached PW1. Cross-Examining both these witnesses on this
important aspect of the case was imperative. It is relevant that
PW8 has deposed that their residence was "15-20 steps away
from the spot". PW20, Inspector Prem Singh, was not
competent, as are PW1 and PW8, to state the distance unless he
had deposed that he actually got the distance measured. The
Defence should have been precise as regards this distance. On
the contrary their suggestion to PW1 was that the distance was
half-kilometer, whereas to PW8 the suggestion is one kilometre.
We have no reason to doubt the statement of PW8 that this
distance was about "hardly twenty paces away" (that is 20
yards). We are also not persuaded to hold that the alarm raised
by PW8 was not audible to PW1 at his home.
10. PW1 has also stated that his brother PW8 had told him
that it was the Appellants who had murdered Devender and
Arvind Dubey. PW1 has been cross-examined on this point
although it is of no evidentiary value, being hearsay. We can
only conjecture that one of the intentions of the Defence may
have been to get this witness to say that he had witnessed the
murder. The deposition of PW1 to the effect that he had
dispatched both his deceased brother, Devender and PW8,
Rakesh to the shop of Raghu Rai (PW2), and that he went to the
spot of the murder on hearing the alarm/call of PW8, and that
he along with PW8 had removed their brother, Devender to the
GTB Hospital in a TSR, has not been dented or eroded. Our
attention has been drawn to a portion of the Cross-Examination
of Inspector, Prem Singh (I.O.) to the effect that he had gone to
the house of Chaman which was about 100-125 yards from the
spot in A-2, Nand Nagri and that the house of the deceased was
also 100-125 yards but in the opposite direction. As has already
been noted above, deceased, Devender, did not reside in the
same house as his brothers PW1 and PW8. It was imperative for
the Defence to elicit from PW20 the distance between the spot
and the residence of PW1 in order to substantiate their
argument that the cries/alarm of PW8 could not have been
heard by PW1. Accordingly, it is our conclusion that if an alarm
had been given by PW8, it would have been heard by PW1 who
was about twenty yards (paces) away.
11. PW3, that is PI, Mahinder Singh, CID, has deposed that on
19.9.1990 he was posted at Police Station, Nand Nagri as S.I.
when Constable Raj Kumar handed over DD Entry No.56-B
regarding an incident at A-1, Nand Nagri involving alleged
stabbing of two persons and that one of them has been taken to
the hospital. As per his statement, on receiving the said
information, he proceeded along with Constable Kishan Chand
towards GTB Hospital. There he met Rakesh, brother of one of
the deceased. He recorded his statement and sent a Rukka to
the P.S. for registration of the case. Thereafter, he came to the
spot of incident at A-1, Nand Nagri where the dead body of
Arvind Dubey was found lying. Samples of blood stained on
earth were taken and the body of Arvind Dubey was sent for
post-mortem. In his cross-examination, the defence has
questioned him on the details of persons present at the spot of
incident and shops etc. located around the spot of the incident.
Suggestions were given that he had not even gone to the spot of
the incident and that the memos prepared were not prepared at
that spot but in the police station. The witness has categorically
denied these suggestions. In response to the question put to him
by the defence counsel, he has stated that the distance between
the shop of Raghu Rai and dead body was 4/5 yards and that
one or two shops were open when he arrived. At one place,
though, he has stated that the face of dead body was towards
the earth which statement is in variance to the statement of
Raghu Rai and photographs on record, Exhibit PW15/A where
the face of the dead body of Arvind Dubey is facing the sky. We,
however, find it loath to impeach the credibility of the said
witness on such minor contradiction as same may be the result
of limitations of human memory which may after lapse of some
time show faults due to non-recollection. The facts stated in the
statement of this witness substantiate the prosecution case on
all other points and no material advantage can be derived by the
defence.
12. PW4, namely, Dr. K.K. Baruah has deposed that he
conducted the post-mortem on the body of Arvind Dubey which
was sent by Inspector Prem Singh, SHO and brought by Udaiver
Singh and got identified by Rakesh (PW8). As per the Report
submitted by him the body bore injuries which were caused by a
sharp object puncturing the lung and the heart, and that the
injuries nos. 2 and 3 were sufficient in ordinary course to cause
death. It was further stated that the stomach contained
undigested food and emitted a smell of alcohol. PW4 has
further deposed that on the same day he conducted post-
mortem on the body of Devender brought by Constable Krishan
Lal and got identified by father of the deceased in the mortuary.
The incise wounds on the body were also said to be caused by a
sharp object, causing wounds of 12-13 cm of depth but not
cutting through any major blood vessel. In this case also, the
second and third injury caused is said to be individually
sufficient in ordinary course of nature to cause death. PW4
was crossed-examined on the point that he had given his opinion
on the cause of death of Arvind Kumar Dubey on 31.10.90 and
not on 20.08.90. It was put to him that this delay was because
he had altered his opinion; and the opinion submitted on
31.10.90 was not his original opinion. He denied these
suggestions and said that his opinion was based on the findings
recorded in the post-mortem Report dated 20.08.90. Further, he
clarified that it was wrong to suggest that he did not give his
opinion on 20.08.90 and that it was given afterwards and that
the non-submission of the opinion to Investigation Officer (IO)
on 20.08.1990 was a result of inadvertent oversight and the
same was later submitted on 31.10.1990. We find the opinion
and findings of Dr. K.K. Baruah are material to determine the
cause of death of Arvind and Devender and the nature of assault
by the assailants with which the deceased were done to task.
The presence of undigested food and smell of alcohol from the
stomach of deceased Arvind also provides substance to the
account of the Prosecution that the assailants and the deceased
were eating and drinking liquor prior to the alleged assault.
The time of death recorded by the doctor also conforms with
that of other witnesses.
13. PW5, Inspector Davinder Singh, who is the draftsman and
prepared the Site Map annexed as Exhibit PW5/A was also
produced in the Witness Box. He has deposed that he had gone
with Sub-Inspector Niranjan Singh to that spot and had taken
rough notes and measurements at the instance of eye-witness,
Rakesh (PW8) and on the basis of these measurements and
rough notes he had prepared the said scaled Site Plan (Exhibit
PW 5/A) on 27.10.1990. The defence has failed to establish in
his cross-examination that he did not visit the place of
occurrence and has merely drawn the Site Map at the instance
of IO and not the eye witness, Rakesh Kumar.
14. PW6, namely, Constable Udaivir Singh has deposed that
he took the two dead bodies, one of Devender and other of
Arvind Dubey for post-mortem to Subzi Mandi Mortuary on the
directions of the IO on 19.08.90 and that on 20.08.90 the post-
mortem was conducted and after that the bodies of deceased
were handed over to their respective relations on the same day.
In his cross-examination he failed to tell the nature of the
documents which he carried along with the dead body that were
handed over to him by the doctor and said that the details of the
nature of the documents were mentioned in his statement by
the IO himself. We do not find anything material in this, though
he should have written the particulars mentioned in his
statement in his own handwriting but slight irregularity will not
impeach his testimony.
15. PW7 is Head Constable Ishwar Singh who has deposed
that he received exhibits pertaining to this case on 19.08.90
from SHO Inspector Prem Singh. He has further said that IO
had deposited eleven sealed parcels (pulandas) with the seal of
Police Station and that all the said exhibits were entered in the
Register maintained at the Malkhana. He has further stated that
these exhibits were sent to CFSL vide RC No.32/21 through
Head Constable Giasi Ram (PW17). On his return, Giasi Ram
deposited with him the copy of RC as receipt. In his cross-
examination, the defence failed to establish that the parcels sent
to CFSL were either tampered or not even deposited with him.
16. Constable Ashok Kumar who appeared as PW9 has
deposed that after receiving the information about DW No.56B
from S.I. Mahendra Singh and Constable Kishan Chand he
accompanied the SHO to GTB Hospital where SHO received the
MLC pertaining to injured deceased Devender and recorded the
statement of Rakesh Kumar. Thereafter, he said that the
recorded and endorsed statement was handed over to him and
he took it to the Duty Officer at the Police Station who recorded
FIR No.218/90. Thereupon, he came back to the spot with the
said FIR. In his cross-examination, he was asked to disclose the
crime scene on his reaching the spot with FIR, to which he has
said that electricity was running when he reached the spot after
10:00 P.M. IO recorded some statements and place was got
photographed by the photographer and nothing else was done in
his presence. He has denied the suggestions that he did not take
the Rukka to the Police Station or that he had deposed falsely.
Nothing contrary to Prosecution‟s case has been obtained from
the Defence in our opinion.
17. PW 10 and PW11 are officials from CFSL who have given
their Reports as Exhibit PW 10/A and PW11/A. PW 12 is the ASI,
Ram Chander who was the Duty Officer in PS: Nand Nagri and
recorded formal FIR at the instance of Constable Ashok Kumar.
Further, PW13, Constable Chaman Singh, is examined who has
stated that at about 8:00 P.M. one inured Devender Kumar was
got admitted by one Rakesh and DD No.56-B dated 19.08.90 is
recorded in Police Station Nand Nagri pursuant to that. They
have not been cross-examined.
18. PW14, SI Ram Kishore, from crime team has deposed that
on 19.08.90 on receiving information from Police Station Nand
Nagri that a dead body was lying on the road, he went to the
spot which is stated by him to be near a nallah adjacent to a
road of A-1 Market, Nand Nagri. The dead body of a person
whose name was revealed to him as Arvind Dubey was lying
there and he was told that another body had already been
removed to the Hospital. He then examined this body and gave
his Report to the IO. This further substantiates that the incident
of stabbing of Devender also occurred at the same spot since
otherwise he would not have learnt about his removal to the
hospital. PW14 has not been cross-examined at all.
19. Constable Ravinder Singh, PW15, who was the
photographer, has stated that on 19.08.90 at 9:00 A.M. he went
to the spot and took seven photographs of the dead body of
Arvind and also of the spot where blood of Devender was said to
be lying. In his cross-examination, he has stated that he visited
the spot at 9:00 A.M. on 19.08.90 which could not be possible if
the incident had occurred during the night of 19.08.90.
Secondly, he has also stated that there were two bodies lying
separately but no corpse were found near the blood of which he
had taken the photograph. It was at this juncture that learned
ASJ has made an adverse observation on the abnormal
demeanour of this witness; that he appeared to be drowsy and
that he repeatedly was looking downwards even when a simple
question was asked of him. In response to a Court query as to
why he had stated that there were two bodies lying at the spot,
he clarified that he did not say that two dead bodies were lying
there and that only one body was lying there and some blood
was lying some distance away from it and that he might have
confused the questions but he was certain that one dead body
was there at that time.
20. The examination and the statement recorded is thus
marred by the apparent contradictions in the cross-examination
which significantly runs counter to the case of both Prosecution
as well as Defence as none of them have said that there were
two dead bodies lying on the spot. The time of arrival at the
spot also casts suspicion on the testimony of the photographer
as the same cannot be true. We are circumspect in believing the
new fangled account of the crime scene that appears from the
cross-examination. However, we do not disbelieve his testimony
in totality. The part of his testimony that finds affirmation by the
photographs taken by him, annexed as PW15/A where the blood
stained earth and one dead body of deceased Arvind is shown in
separate photographs cannot be ignored on account of his
blemished demeanour during his cross-examination. His
evidence is relevant to mow down the Defence version that the
incident with Davinder occurred a day earlier and somewhere
else and that the Accused had been falsely implicated in this
case.
21. PW 16, Dr. B.D. Singh of GTB Hospital has been produced
by Prosecution in relation to the MLC. He has testified about the
veracity of the MLC, PW16/A, prepared by Dr. Raj Mohan who
has not been produced for the reason that he has left the
Hospital and his whereabouts were not known. He identified the
signatures and handwriting of Dr.Raj Mohan on the said MLC.
In his cross-examination he could not reply satisfactorily to the
questions put to him about the cuttings made on the MLC. He
said that he could not tell as to when these cuttings were made
and whether these cuttings were made in the MLC after the
duration of injuries was told. He has stated that while preparing
the MLC, the Doctor must give the duration of the injury. On a
perusal of the said MLC we observe that the writing that has
been cut is in a different hand and with a different ink. Thus, we
find the suggestion of the Defence that the portion that was cut
was bearing the duration of time of injury and the same was cut
to deliberately conceal the actual time of receiving the injuries
to be unacceptable.
22. PW 17, Head Constable Gyasi Ram has deposed that on
6.9.90 he was posted in P.S. Nand Nagari and that he was given
some parcels by MHCM bearing the seal of the P.S. and of the
Doctor for being taken to CFSL vide RC No. 32/21 which he
deposited with the CFSL office. In his cross-examination he has
deposed that he had also taken CFSL Form along with the
parcels, but that he did not remember as to how many specimen
stamps had been affixed on the CFSL Form.
23. PW 18, Constable Krishan Chand has deposed that on the
instruction of the SHO he along with Constable Udai Bir Singh
had taken the dead body of Arvind Dubey from the spot in Nand
Nagri near Village Kanchi Pur to the Subzi Mandi Mortuary for
post mortem. Thereafter they took another dead body from GTB
hospital pertaining to case FIR No 218/90 to Subzi Mandi
Mortuary for post mortem. After the post-mortem the dead
bodies were handed over to the respective relatives. The Doctor
at the mortuary had given parcels after sealing them which
were handed over to the Duty Officer. He further deposed in his
cross-examination that the dead body was taken by them in the
evening period but he could not tell the exact time. However, it
was somewhere after 8 P.M.
24. PW 19, Sub Inspector Niranjan Singh has, along with
police party, played a material role in tracing of the Accused
and in recovering the murder weapon. He deposed that on
20.8.90 he was posted in PS Nand Nagri. He along with
Inspector Prem Singh and ASI Bhram Pal and some other police
staff had gone to GTB hospital. The Inspector conducted Inquest
proceedings on the dead body of Arvind Dubey which was found
kept in the mortuary of the Hospital. From there they went in
search of the accused persons.
25. In his cross-examination, he has stated that on the night of
19/20.08.90 at about 12:50 A.M. he went straight to GTB
Hospital. PW Rakesh had accompanied them from the Police
Station itself. They stayed in the Hospital till about 5 A.M. on
20.08.90. From GTB Hospital they went straight to
Sriniwaspuri, to the house of the father of the accused Om
Singh. They stayed at Sriniwaspuri for about 20-25 minutes and
then went to Jalebi Chowk. He kept sitting in the vehicle while
the Inspector, PW20, had gone to a nearby house. He stayed
there for about half an hour. He further deposed that they might
have left Kalyanpuri at about 7 A.M. PW Rakesh had
accompanied the SHO from Jalebi Chowk to the nearby house.
He has also stated that in Okhla he also kept sitting in the
vehicle, while PW8, Rakesh, SHO and other police staff went to
some house. Thereafter, they went to P.S. Okhla and stayed
there for about one hour from where they departed at about
10 A.M. for village Karkari Mandal. They reached Karkari
Mandal at about 11:15 A.M. The house in front of which the
accused were found sitting was in the north-east side of the
village Karkari Mandal. That house was almost at the entrance
of the village. He had noticed the accused persons for the first
time when he was about 50 yards away from them. All three
accused were sitting on a single cot and they were talking to
each other. It is stated that he did not see them eating or taking
anything at that time. The accused persons had tried to run
away after seeing them but they were apprehended within a
chase of 5 to 7 steps.
26. In his statement he had said that the witness Rakesh
correctly identified all the three accused by taking their names
and pointing towards them. The Accused were apprehended on
being pointed out by the PW Rakesh who was also present with
the police party. Taking the Accused in their custody they came
to Nand Nagri 100‟ Road in the police vehicle where they
alighted from the vehicle. The Accused Om Singh had taken the
police party to A1 Market Nand Nagri and took them to a park
in front of Raghu Rai‟s Tea Shop and from under the grass
under the safeda tree (eucalyptus) he picked up one button-
actuated knife which was stained on its blade. At this stage, a
parcel with Court seal was opened and the Knife, Exhibit P1,
was taken out which PW19 identified being the same knife
which accused the Om Singh had got recovered from „under
grass‟ under the safeda tree that day.
27. We shall now deal with the medical Reports/Opinions
available on record. The Post Mortem Report (Exhibit PW4/A),
which was prepared on 20.8.1990, discloses that three incise
wounds and one abrasion was found on the body of Arvind
Dubey; two injuries being individually sufficient to cause death
in the ordinary course of nature; death occurred due to shock
and haemorrhage. The Post Mortem Report of Devender
(Exhibit PW4/B) also prepared on 20.8.1990 discloses two
stitched wounds and one incise wound on his body, all being
ante mortem, and injuries two and three being individually
sufficient to cause death in the ordinary course of nature; death
occurred due to haemorrhage. It has been opined that these
injuries had been caused by a sharp-edged weapon.
28. We shall now recount the testimony of three Witnesses
who, in our opinion, are most prominent amongst others. PW2,
Raghu Rai, was running a Meat Shop where the incident had
taken place. In his Examination-in-Chief he has stated that on
18.8.1990 (Sunday) at about 7 P.M. the Accused, namely, Om
Singh, Raju and Chaman who were regular visitors had visited
his shop along with deceased, Devender and Babloo. On that
day, Om Singh had ordered meat and has stated that they would
take liquor in the shop. On his objecting to it, Om Singh
threatened him with dire consequences and had shown him a
knife. He thereupon arranged five plates of meat. They started
consuming liquor that they were carrying. Om Singh paid the
bill of Rupees Twenty Five and went out of the shop. Some
altercation started between them about a wrist watch of
Devender. In the quarrel Om Singh brought down Babloo to the
ground. Despite deceased Devender‟s objections, Om Singh
stabbed Babloo. Devender again objected and all the three
started beating and kicking him. When Devender, deceased,
tried to get up, Chaman and Raju caught hold of him with their
hands and Accused Om Singh stabbed him. Deceased Devender
fell on the ground and all the Accused ran towards Gagan
Cinema along with the knife. PW2 closed the shop due to fear
and he gave a statement to the Police. Babloo died at the spot,
whereas Devender was removed to the Hospital. PW2 has
clarified that the correct date of the incident was 19.8.1990 and
that the incident had happened at 7:45 P.M.. He has also
clarified that all the three Accused had given kicks and fist
blows to Arvind Dubey.
29. In this case, consequent upon the Orders of the High
Court of Delhi, PW2 was examined afresh. Both his
Examinations-in-Chief are similar.
30. In cross-examination PW2 has volunteered that out of
forty shops only five to six remained open till 7-8 P.M., but he
could not recollect how many shops were open at the time of the
incident. No customer was present at the spot of PW2 when the
three Accused and the two deceased had come there. The
Witness did not rule out the presence of other persons in the
market. He has categorically stated that - "Arvind Dubey who
was of small height (nata) was beaten and stabbed right in front
of my shop". He did not intervene in the beatings of Arvind
Dubey as he was scared and kept fully quiet. Arvind Dubey was
stabbed in the stomach by Om Singh while he was lying on the
ground. The liquor as well as the meat was fully consumed.
PW 2 has admitted that there was no electric light that day in
the market and that he had lit one lamp (glass bottle). He has
admitted that he had gone first to the Police Station and then to
the Court and this was because his father had been murdered
by Om Singh while he was on Parole. PW2 has admitted that he
worked with Accused, Chaman but has denied the suggestion
that he owed Chaman any money and also that Chaman never
consumed liquor or tobacco. PW2 has denied the suggestion
that Chaman had not come to his shop on the fateful day or that
Chaman did not beat or catch hold of either of the deceased. He
has denied the suggestion that the „incident‟ took place on
18.8.1990 and not on 19.8.1990. In our view, this suggestion is
of importance as it admits that the incident narrated by the
Prosecution had actually taken place, albeit one day earlier. In
the cross-examination conducted by learned counsel for the
Accused, Om Singh and Raju, PW2 has stated that the house of
Devender was about 15-20 paces from the spot and the
Nala/Drain was about 8-10 feet away from the entrance of his
shop, after which a 25-30 feet wide road existed. PW2 has
stated that he learnt of the death of Arvind Dubey when he
came back after arrival of the Police at the spot. When he
returned to his shop, PW2 has deposed that Arvind Dubey‟s
body was lying there and the injured Devender had been
removed to the Hospital. As it was summer, despite there being
no electricity, he could see the incident easily, as kerosene
bottle lamp was lit in his shop. Although Devender was stabbed
in his presence, he could not tell how many times this had
happened. PW2 has further deposed that deceased Devender
was caught from one side of his body by one accused and of the
other by the other accused. He has denied this suggestion that
no such incident took place on 19.8.1990 and that the dead body
of Arvind Dubey was found following morning. He has denied
the suggestion that he has deposed falsely on police
pressurisation; that the incident had taken place on 18.8.1990
and Devender was treated at home and removed to the Hospital
only on 19.8.1990 when his condition had deteriorated.
31. The other important witness is PW8, namely, Rakesh. He
is the younger brother of deceased, Devender. He know all the
three Accused. He has deposed that on 19.8.1990 at about 7:30-
7:45 P.M. Devender had gone to fetch meat from the shop of
Raghu Rai (PW2). When he reached the shop, he witnessed an
on-going quarrel between Om Singh and Arvind Dubey on the
issue of the wrist watch in the course of which Arvind was given
fist blows and kicks by the Accused; Om Singh took out a knife
and the other two Accused, Raju and Chaman, caught hold of
Arvind. At that stage, Devender objected but Om Singh stabbed
Arvind. Thereupon, Devender was also beaten by Accused,
Chaman and Raju; they held on to Devender and Om Singh
stabbed Devender twice as a result of which Devender fell down
and started bleeding. At this point all three Accused ran away
from the spot. Rakesh raised an alarm, hearing which his other
brother, Ramesh arrived at the spot. They found that Arvind
Dubey had died, whereas their brother, Devender was groaning
with pain. They removed their brother to GTB Hospital in a TSR.
The statement of Rakesh (Exhibit PW8/A) was recorded at the
Hospital. Ramesh then accompanied the Police to the spot
where the latter lifted the earth samples, stained with blood of
Arvind Dubey and also lifted controlled earth and blood stained
earth relating to Devender, all of which were sealed into
parcels. It was at that time and place that Rakesh learnt of
the death of his brother, Devender in the Hospital at about
9:30 P.M.. Rakesh has stated that he had joined Inquest, the
proceedings of which (Exhibit PW8/B) have been signed by him.
His statement is recorded in the Inquest proceedings (Exhibit
PW8/C). The position is similar in respect of Arvind Dubey also.
32. Rakesh has further deposed that on 20.8.1990 he
accompanied the Police while they were searching for the
Accused. The entire party reached Karkari Mandal which he had
not visited earlier. All three Accused were found sitting and
were apprehended by the Police on his pointing out. Thereafter,
Om Singh led the Police party to a Nursery in Nand Nagri near
the spot from which he got the knife recovered from under a
Safeda tree. The knife was sealed in a parcel on which he
signed. Rakesh has identified the knife (Exhibit P1) being what
was got recorded by Om Singh. Rakesh was first examined by
Shri D.P. Sharma, counsel for Accused, Chaman. He reiterated
that Raghu Rai‟s shop is hardly twenty paces from his house. He
has stated that it was Ramesh who had asked him to go to the
shop of Raghu Rai. Rakesh was confronted with Exhibit PW8/A
with the purpose of highlighting that he had not made a
statement to the Police to this effect as also to the effect that
Accused Chaman and Raju had caught hold of Arvind Dubey
after he had fallen down to the ground and Om Singh had
stabbed him. Rakesh has also stated that at that time the market
was open and lights were on. Although the market was open,
there was no rush there. Arvind and Devender were lying at a
distance of about four paces from the open shop of Raghu Rai.
The shop was open but no customer other than the three
Accused and the two deceased were present there. The stabbing
of both the deceased took place within the duration of five
minutes. Rakesh has deposed that after the stabbing Arvind was
lying on the ground face-up, but that he did not recall how
Devender was lying after his stabbed injuries. The bodies were
lying within two paces of each other. A lot of blood has oozed
out from their bodies which were badly smeared in blood.
Devender was still bleeding, although in very small quantity,
even when he was taken to the TSR, the number of which was
not noted. Devender was laid down on the seat of the TSR and
Rakesh sat with the driver. He could not say whether any blood
had fallen on the scooter seat. According to this Witness, his
brother, Ramesh, had told the Doctor as to how injuries had
been received by Devender. He has denied that he was not in
the know as to who had stabbed Devender and for this reason
had not given the name to the Doctor.
33. PW8 has further deposed that when he returned to the
spot of occurrence from the Hospital it was about 9 P.M. and
thirty-forty persons were present there. The market had closed
by then. Since he had not met Raghu Rai, he could not recall
whether he was present at the site at that time. He remained
with the Police at the spot for about half an hour and remained
with them throughout till the next date. All items, including
liquor, were lying untouched in front of the shop of Raghu Rai.
He signed several documents but because he was not very
literate, he was unable to tell what was written thereon. In
cross-examination Rakesh has further stated that he went to
Sriniwas Puri and Kalyan Puri on the night of the incident
among other places, details of which he could not give. He went
to Bhogal and Karkari Mandal thereafter. Significantly, Rakesh
has admitted that the place where the Accused persons were
found sitting was surrounded by residential locality (this is
significant for the reason that it is the case of the Accused
themselves that they were found by the Police party
accompanied by Rakesh sitting in a place which was surrounded
by residential locality). Importantly, in the cross-examination he
has narrated that he had seen the Accused persons in Karkari
Mandal, a distance of fifteen-twenty paces and that they were
consuming alcohol and that the Police had surrounded the
Accused before they were apprehended. It was because of this
reason that their efforts to run away were futile. The knife was
recovered from a Nursery in Nand Nagri, the ownership of
which he cannot give. The party came back to the Police Station
after sitting in the Nursery for about half an hour. He has
denied the suggestion that he was neither present at the spot
nor had any incident taken place there. He has also denied that
there was no „light‟ (electricity) at the spot or even in the entire
market or that there was a breakdown of electricity at that time.
34. Rakesh, PW8, was thereafter examined by Shri Dasa Ram,
learned Advocate for Om Singh and Raju. He has stated that he
was seven-eight paces away from the Accused persons and he
saw Arvind Dubey fighting with them; that he raised the alarm
only after Devender had been stabbed. He has also denied that
his brother, Devender, was getting treated privately and only
when his condition deteriorated on 19.8.1990 was he taken to
the Hospital. On a reading of the cross-examination, it becomes
evident that the witness had not contradicted himself; nay he
had recounted the events several times quite accurately and
consistently.
35. The last prosecution witness, PW 20, Inspector Prem
Singh has stated in his Examination-in-Chief that he was posted
at P.S. Nand Nagri on 19.08.1990. At about 8 P.M. he was
patrolling at 100‟ Road when S.I. Mahender Singh and
Constable Kishan Chand met him and informed him that
Devender(deceased) had been admitted in GTB Hospital in
injured condition after a quarrel. He reached GTB Hospital and
obtained the MLC of the injured Devender, who, according to
the Doctor, was unfit to give his statement. PW20 met Rakesh in
the Hospital and he recorded his statement (Ex PW 20/A). He
sent the same to the Police Station through Constable Ashok
Kumar for the registration of case. He along with his staff and
PW 8, Rakesh reached the spot at A1 market Nand Nagri
opposite meat shop of Raghu Rai where a dead body of a male
person whose name was revealed to him as Arvind Dubey was
found. He summoned the Crime Team and the Photographer,
through whom the spot was got photographed. He (PW20)
prepared a rough Site Plan Ex. PW 20/B with its marginal notes.
Thereafter, he took samples of bloodstained earth and
controlled earth from the spot where the dead body of Arvind
Dubey was lying and the spot where blood of injured Devender
had fallen. All the samples, Exhibit PW 3/A to E, were sealed in
separate phials. He conducted the Inquest proceedings in
respect of Arvind Dubey on 19.8.1990 and the same is Exhibit
PW20/C. After this he sent the dead body of Arvind to mortuary
for post-mortem. He further states that he was informed about
the death of injured Devender on 20.8.1990. On receiving this
information he went to GTB Hospital along with his staff and
conducted Inquest proceedings (Exhibit PW8/B) on the body of
Devender. Thereafter, he recorded the statement of Prosecution
Witnesses.
36. PW20 has further deposed that he commenced the Search
for the Accused soon after he left the Hospital along with S.I.
Mahendra Singh, SI Niranjan Shah, ASI Braham Pal and PW8
(Rakesh) besides other staff. They went first to the house of Om
Singh where they were told by Om Singh‟s father that he might
be found in the area of P.S. : Kalyan Puri near Jalebi Chowk. On
reaching there, they could not find the Accused Om Singh but
were told that he could be found in the area of Bhogal. From
Bhogal they went to Karkari Mandal. At Karkari Mandal all the
three Accused persons were found sitting on a cot and on being
correctly pointed out by PW8, Rakesh, by taking their names, all
the Accused were apprehended at about 3 P.M. The personal
search of the Accused was conducted, they were interrogated
and their Disclosure Statements were also recorded. Disclosure
Statement of Accused Om Singh is Exhibit PW8/K, of Raju is
Exhibit PW8/L and of Chaman is Exhibit PW8/M. PW20 has
further deposed that thereafter Om Singh led the Police party to
the place of occurrence and also to a nearby park from where in
the bushes near a Safeda tree he took out a buttondar knife
(button-actuated knife). The blade was found to be stained with
blood. The said knife was measured and sketched. The same is
Exhibit PW8/O and the recovered knife/weapon of murder is
Exhibit PW8/N respectively. The Exhibits were deposited in the
Malkhana from where they were got sent to CFSL. He also
collected the post-mortem Reports and photographs etc. and got
prepared the scaled Site Plan which are PW10/A and 11/A
respectively. PW20 has also stated that he collected the clothes
of PW8, Rakesh, being his pant, shirt and handkerchief on the
next day, that is, 21.8.1990 vide Memo Exhibit PW20/D which
bears his signatures and were sealed with the seal of Police
Station.
37. In his cross-examination by Shri B.P. Gupta, Advocate for
Accused Raju, PW 20 has stated that he had no information
about the incident until he was told about the same by Sub
Inspector Mahendra Singh. On receiving that information he
reached GTB Hospital in about ten minutes and collected the
MLC of the injured. He states that the deceased Arvind was not
there in the Casualty Ward. He stated that he stayed in the
Hospital for about one and a half hour and also recorded the
statement of PW8, Rakesh at about 8:30 P.M. He has
confirmed that the distance of the point where the dead body of
Arvind was lying was about ten to twelve feet from the point
where the blood of injured was lying. He also clarified in his
cross-examination that the statement of Rakesh was not
recorded in the Hospital as he had to rush immediately to the
spot. He has also denied the suggestion that he did not meet
Complainant, Rakesh or Ramesh in the Hospital and that he did
not send any Ruqqa from the Hospital.
38. In his cross-examination by Shri Dasa Ram, Advocate for
the Accused Om Singh he has stated that on 19.8.1990 after
getting information about DD No.56.B he stayed in the Hospital
till about 9:30 P.M. On the next day, that is 20.8.1990, he
reached the Hospital in the noon period and that he proceeded
for the Search of the Accused persons in the afternoon period
along with Sub Inspector Niranjan Singh, ASI Braham Pal,
Constable Ramesh, Constable Raghubir, Constable Ashok and
one driver. From Hospital they first went to Bhogal where they
had gone to the house of Mausi (Aunt) of Accused Om Singh at
about 2:30 P.M. and then to Karkari Mandal village at about
3 P.M.. They left their vehicles outside the village; on entering
the village they found the three Accused sitting on a cot outside
the house in the open on the left side of the entrance of that
house. He spotted the Accused from a distance of twenty-twenty
five yards. The Accused persons tried to run from there, but
they were apprehended as they had been surrounded by the
Police party from both sides. He stated that he tried to include
some village persons in the proceedings earlier but no one had
agreed. It took them about half an hour in conducting the
proceedings at that place. The personal Search Memos and
Disclosure Statements were recorded by S.I. Niranjan Singh at
his instance. They left the place at about 3:30 P.M. and came
back to the spot at A-1 Market. They prepared a "Pointing Out
Memo" at that spot and then Accused Om Singh led them to a
Safeda tree and got recovered a knife. The said knife was quite
near the pagdandi leading to that park, and that the knife was
not visible from the pagdandi and got revealed only after it was
lifted by the Accused. No public person was found present near
the park at that time. The point of recovery of the knife was
about twenty five-thirty yards away from their entry point in the
park.
39. PW20 has reiterated that he had summoned the Crime
Team at the spot of the incident and the Crime Team gave its
Report on the same day which is Exhibit PW14/A and was
handed over to him on 19.8.1990 and the date 18.8.1990 written
on the Report was just by inadvertence. He has denied the
suggestion that the said Accused persons were not arrested
from village Karkari Mandal, or that they had made any
Disclosure Statements or that Accused Om Singh was arrested
from his house on 19.8.1990.
40. In the cross-examination by Mr. D.P. Sharma, Advocate for
Accused Chaman he has again stated that he had reached the
Hospital at about 8:15 P.M. and he came to know that the
injured Devender was brought to Hospital in a TSR by PWs
Rakesh and Ramesh from the recorded statement of Rakesh,
PW8. However, PW8, Rakesh could not tell him the number of
TSR as he had not noted the same. It is pertinent to note that he
has stated that PW8, Rakesh told him that some blood had fallen
in the scooter but he did not ask Rakesh if some blood had fallen
on his clothes also, neither did he see any blood stains on the
clothes of PW8 Rakesh himself. As regards the crime scene, he
states that he did not find any shop open at or near the spot at
the time he went there from the hospital and that he had
instructed the duty officer to depute some police officers to
guard the spot. PW20 has admitted that he did not make any
mention about this in the „zimney‟ but he declined the
suggestion that the same was omitted because the said incident
was of 18.8.1990 and not of 19.08.1990. He further denied the
suggestion that there was no light at the spot at the time of the
incident or from 7:50 to 9:00 P.M. that day. He did not
remember if he had shown the street light pole in the site plan
or what was the distance of the closest street light from the
spot. He has denied the suggestion that the police photographer
had visited the spot on the morning of 19.08.90 instead of the
evening of the same day. He has further stated that on his
reaching the spot, he found the meat shop closed. Some
benches and tables were lying in from of it. He then went to the
house of accused Chaman after 10:30 P.M. and that his house
was about 100 to 125 yards away from the spot and the house of
the deceased Devender was also 100-125 yards away from the
spot but in the other direction. He denied the suggestion that
accused Chaman was falsely implicated in this case and that PW
Raghu Rai and Rakesh are planted witnesses. He also confirmed
that PW Raghu Rai had met him for the first time at about 10:30
P.M. in the night at the spot only. He further denied the
suggestion that the accused Chaman was not arrested for
village Karkari Mandal and that he was instead lifted from his
house or that he is deposing falsely.
41. Thirty five questions were addressed to the Accused
Chaman Lal under Section 313 of Code of Criminal Procedure
(Cr.PC for short), fourteen of which he answered in the words -
"It is incorrect"; nineteen he answered in the words- "I do not
know". In response to the question whether he had anything
else to say, he has stated that he was innocent and had been
falsely implicated and was picked-up from his house on
19.8.1990; that PW1, Raghu Rai was working with him and had
borrowed money from him which resulted in a dispute between
them with the consequence that Raghu Rai had deposed against
him.
42. Similarly, of the thirty six questions asked to Om Singh he
had replied to fourteen in the words - "It is incorrect". Nineteen
in the words -"I do not know". His reply to whether he had
anything else to say was that he was a dismissed constable of
the Delhi Police; that one constable of P.S. Nand Nagri, P.P.
Sunlight Colony approached him to become a secret informer.
Since he declined, the Constable became hostile. This Constable
became highly inimical towards him and, therefore, this case
was planted on him. It is remarkable that the name of the
Constable has not been given.
43. So far as the cross-examination of Accused Raju under
Section 313 of the Cr.PC is concerned, of the thirty six questions
asked, he has replied to fourteen in the words - "It is incorrect".
Sixteen in the words -"I do not know". He has further stated
that this case is a false case and that the Prosecution Witnesses
are false and Interested Witnesses; that he is innocent; and that
he did not know why he had been implicated in the case.
44. The purpose of Section 313 of the Cr.PC is to ensure that
the accused are given a fair chance to tender an explanation to
the case against them. Since such statements are not under
Oath, the law now enables latitude to the accused inasmuch as
they do not unfold purgery proceedings. It is essential that all
the points which are indicative of his guilt are put to the
accused. The Supreme Court has now diluted the golden rule of
yesteryears, that is, the right of the accused to remain silent;
facts within his special knowledge and to some extent to his
defence on vital issues should be disclosed in reply to the
Interrogatories addressed to him by the Court. As we have
already noted, Om Singh ought to have given the name of the
Constable who, according to him, was instrumental in causing
him to be falsely implicated in the present case. So far as
Chaman is concerned, he ought to have made good the case of
his insinuation that Raghu Rai had deposed falsely against him
because of some financial transactions between them. So far as
Raju is concerned, his cross-examination under Section 313 is of
no significance.
45. DW1, Shri Thakur Das, has attempted to provide an alibi
for Accused Chaman by stating that on 19.8.1990 Chaman was
watching T.V. with him. He has deposed that at 7:30 P.M. the
viewers could not see the T.V. because of a breakdown of
electricity. The viewers sat outside his residence till 9 P.M. He
has stated that the Police had arrested Chaman on 20.11.1990,
which is an obvious error and should be read as 20.8.1990 as is
also evident from his cross-examination because of repeated
references to the date 20.8.1990. This contradicts the statement
of Chaman under Section 313 inasmuch as he has replied to
question 35, inter alia, as - "I am innocent and falsely implicated
in this case after picking-up from my house on 19.9.1990 ....".
Shri Vijay, who was allegedly watching T.V. along with Accused
Chaman, could have, but has not been produced as a witness. In
cross-examination he has admitted that he did not make any
complaint to any higher officer of the Police regarding the
alleged false implication of Chaman. He has denied the
suggestion that Chaman was not watching T.V. on 19.8.1990 at
7 P.M. or that there was no breakdown of electricity at that
time. He has also denied the suggestion that Accused Chaman
was apprehended by the Police on 20.8.1990 from village
Karkari Mandal.
46. DW2, Shri Pyare Lal, has filled-up what we perceive as a
gap in the Prosecution‟s case in that he has stated that the
Accused Raju belongs to village Karkari Mandal and was,
therefore, known to him since his childhood. This is important
as it affords an explanation as to why the three Accused would
have been apprehended from village Karkari Mandal on
20.8.1990. In cross-examination DW20 has stated that Police
had taken Raju away on the evening of 20.8.1990; he thereafter
stated that he was taken away on 19.8.1990 of which he gained
knowledge the following day. He has denied the specific
suggestion that the Accused Raju was arrested while sitting on a
cot with the two co-accused on 20.8.1990. In any event, his
statement is hit by the principle of hearsay so far as the arrest
of concerned.
47. On behalf of the Accused several contentions have been
raised:-
Rakesh (PW 8) is a planted witness as his presence at
the alleged scene is doubtful; and that the conduct of
Rakesh was not natural as he instead of calling his
brother, first watched the alleged attack on Arvind
Dubey and then watched the assault on Devender and
did not even try to save his brother;
PW1, Ramesh would not have sent his brother Devender
(deceased) to fetch meat from the shop of Raghu Rai
since the latter was sick on that day; and that Ramesh
could not have heard the alarm of Rakesh from the spot
of the incident from a distance of 125 Yards, about 375
ft.; and that Rakesh and Ramesh are „Interested
Witnesses‟ and their testimonies are highly vulnerable;
Raghu Rai is a doubtful witness as he could not have
seen the incident because of the insufficiency of light; by
the time Raghu Rai reappeared for Examination-in-Chief
he had become an interested witness, and in the second
round, he improved upon his original narrative and
repeated the version of Police in parrot-like manner.
Hence he is also an untrustworthy witness;
There are contradictions in the statements of Rakesh and
Raghu Rai. Raghu Rai claims that his statement was
recorded at the spot on 19.08.1990, whereas Rakesh,
who says that the police did not record any statement on
19.08.1990, claims to have accompanied the IO from the
Hospital till the following day;
The circumstances indicate that it cannot be ruled out
that the incident with Devender took place on 18th
August and not 19th August 1990, whereas Arvind Dubey
was found dead on 20th August 1990 on the road as
suggested to the alleged eyewitness Raghu Rai and that
the accused have been implicated despite no connection
with either of the two independent incidents;
The version of the prosecution as to the circumstances
surrounding the arrests of the accused does not inspire
confidence, especially since no public witnesses have
been examined in this regard;
The disclosure of the knife and its recovery from the
alleged place of hiding also casts doubts on prosecution
story; That the MLC does not contain the name of the
assailants and hence should be ignored. That there are
cuttings on MLC and it says nothing about the duration
of injuries which raises a presumption in favour of the
Accused;
The two eyewitnesses PW 2 and PW8 were not shown
the Knife for identification of the murder weapon when
shown in the Court; That the I.O. did not take the blood
stained clothes of deceased Devender (deceased)
immediately after the incident, and the same were
handed over to him after two days. Blood stained clothes
of the brothers who carried the injured Devender to the
Hospital were also not recovered;
The blood group could not be got identified from the
blood stains found on the knife/ murder weapon in CFSL
report, though it could be ascertained that the blood was
human blood. The report indicating "no reaction"
disproves the prosecution story that the knife allegedly
recovered was the same knife with which any or both the
deceased were stabbed;
The liquor bottles and the glasses in which the accused
and the deceased allegedly consumed alcohol were also
not seized by the police which could have been used for
the purpose of obtaining finger print marks which could
have then been matched with that of the accused and
thus linked them to the spot of incident as per the
prosecution story. Therefore there is nothing concrete to
link the accused with the incident;
The Police Photographer who came to the spot to
photograph the incident testified contrary to the version
of the Prosecution; The testimonies of the police officials
contradict each other as regards the time of detaining
the accused and the places visited prior to that are
concerned;
The Crime Team Report nowhere mentions the name of
Rakesh who in his testimony says that he was present at
that time when the said Report had been made. They
have also put the date as 18th and not 19th August 1990,
suggesting that the deceased Devender may have
received injuries on 19.08.1990; (13) The pleas of
Chaman that Raghu Rai had taken some loan from him
and out of that animosity, Raghu Rai Deposed/Framed
him, as contained in statements under section 313 CrPC
has not been proved as incorrect by the prosecution;
Plea of Om Singh that he had animosity with some police
constable and that he was the one who falsely implicated
him in this case has also not been disproved. The
prosecution has not led any evidence to discredit/
disapprove this "explanation of circumstances" by
accused under Section 313 CrPC;
No question was put to the accused under Section 313
Cr.PC that Rakesh had accompanied the Police at the
time of recovery of weapon. Therefore, the Prosecution
cannot rely upon this „incriminating circumstances‟
against the accused; There is no medical evidence to
establish that the bodily injuries suffered by the
deceased were inflicted by the same knife that was
seized by the Police;
For the main accused Om Singh, in the alternative it is
urged by the defence counsel that he is entitled to the
Exception IV of Sec. 300 IPC, as the alleged murderous
assault was a result of a sudden fight in the heat of
passion and that there was no premeditation nor any
exceptional circumstance to warrant presumption of
murder;
In the defence of Chaman and Raju, it is sought to be
urged that no offence under 302/34 IPC can be made out
against them;
The Accused has already undergone imprisonment for
seventeen/eighteen years (excluding remission) and it is
fit case to be considered under Section 304 IPC in view
of the mitigating circumstances.
48. We shall now consider the arguments raised by learned
counsel for the Accused. Mr. Sanjay Jain, learned Senior
Advocate/Amicus Curiae has contended that PW8 (Rakesh) is a
planted witness as his presence at the alleged scene is
doubtful. We must immediately distinguish between a planted
witness and a witness whose testimony does not inspire
confidence. According to the Amicus Curiae the presence of
PW8 at the alleged scene is doubtful because of his unnatural
conduct in that instead of calling his deceased brother, he
stood by and watched the alleged assault on him and Arvind by
the Accused; that he did not attempt to save his brother. The
evidence discloses that when PW8 reached the spot the assault
on Arvind had already commenced and on his brother followed
immediately. He has stated that within two minutes of his
arrival Arvind Dubey was stabbed and within another two
minutes his brother was stabbed; the entire incident took
place within five minutes. PW8 was a young man of only 21
years of age at the relevant time. We do not find his conduct to
be unnatural for the reason that it is a common occurrence
that a person who suddenly witnesses a heinous or gruesome
attack is left spellbound to such an extent that he can neither
act nor speak. PW8 had come to the spot with the purpose of
calling his brother and instead witnesses an assault on him.
Had the assault lasted for a long period of time, he would, in
the natural scheme of things, have tried to intervene and/or
tried to summon his elder brother. In this regard, we may only
refer to State of U.P. -vs- Shyam Sunder, (2000) 10 SCC 49
where their Lordships have opined that the first action of the
witnesses would be "to remain stunned for a while particularly
after seeing a bloodthirsty man acting like a devil holding a
lethal weapon. If they did not dare to go near him then how
can that conduct be dubbed as unnatural."
49. It has next been contended that PW1, Ramesh, the eldest
brother, would not have sent the deceased to the shop of PW2,
Raghu Rai, since he was unwell. None of the witnesses have
been examined on this point. It is not in evidence that
Devender was so unwell that he was not able to move. We find
nothing unusual in deceased having gone to the shop of Raghu
Rai to fetch a meat preparation.
50. In our opinion, learned counsel for the Accused are not
justified in relying on the evidence of PW20 so far as the
distance of 125 yards between the spot and the residence of
PW1 and PW8 is concerned. All the local residents, namely,
PW1,PW2 and PW8 have testified that the distance between
the spot and the residence of PW1 and PW8 was about 10-15
paces. Added to that is the fact that PW8 witnessed the
gruesome murder of his brother approximately at mid
distance, that is, a few paces short of the shop of PW2. The
location has been shown in the Site Plan which has not been
disputed on this point. PW10, in our opinion, was an unreliable
witness so far as the distance is concerned. Keeping in view
the distance of the local witnesses as well as the Site Plan
before us, we entertain no doubt whatsoever that an alarm
raised by PW8 from the place where he had witnesses the fatal
assault on his deceased brother would have been heard by his
eldest brother,PW1 at their residence. Moreover, PW1 has also
clarified that at the relevant time he was sitting in front of his
house.
51. It has been contended that the brothers, namely,
Ramesh, PW1 and Rakesh, PW8 are Interested Witnesses and,
therefore, their testimonies are highly vulnerable. This
argument is not well-founded in view of the pronouncement in
Arumugam -vs- State in Criminal Appeal No.967/2001. The
Court opined that - "Relationship is not factor to affect
credibility of a witness. It is more often than not that a relation
would not conceal actual culprit and make allegations against
an innocent person. Foundation has to be laid if plea of false
implication is made. In such cases, the court has to adopt a
careful approach and analyse evidence to find out whether it is
cogent and credible". The Court referred to the previous
Judgment in Dalip Singh -vs- State of Punjab, AIR 1953 SC
364 consistently followed for half a century. No useful
purpose will be served in mentioning several judgments that
have been considered in Arumugam. In the background of the
evidence of PW1 and PW8 we are satisfied that their evidence
is not tainted in any manner or partisan for the reason that
they are the brothers of the deceased, Devender.
52. Learned counsel for the Accused have vehemently
contended that PW2, Raghu Rai, could not have seen the
incident because of the insufficiency of light and hence his
testimony should be rejected. It must be borne in mind that
Raghu Rai was a witness from the very start. He has testified
that Accused Om Singh had threatened him with a knife
(switch blade or button-actuated knife) when he had initially
objected to their consuming alcohol at his shop. He had seen
the Accused as well as the deceased for at least a quarter of an
hour immediately before the incident. Such a witness would be
in a very good position to narrate the assault in detail. The
following passage from Nathuni Yadav -vs- State of Bihar,
AIR 1997 SC 1808 justifies extraction:-
8. Even assuming that there was no moonlight then,
we have to gauge the situation carefully. The proximity
at which the assailants would have confronted with the
injured, the possibility of some light reaching there
from the glove of stars, and the fact that the murder
was committed on a roofless terrace are germane
factors to be borne in mind while judging whether the
victims could have had enough visibility to correctly
identify the assailants. Over and above those
factors, we must bear in mind the further fact
that assailants were no strangers to the inmates
of the tragedy bound house, the eye witnesses
being well acquainted with the physiognomy of
each one of the killers (emphasis supplied).
53. Some benefit is sought to be taken from the statements
of the witnesses that there was no electricity in the market.
The version of PW2 which has not been challenged is that he
had alternative lighting in his shop which obviously was
sufficient to enable the Accused and the deceased to eat meat
and consume liquor in front of the shop. The spot where the
fatal assault took place on Devender and Arvind was not so far
away that none of the light from the shop would have reached
there. In any event, the observations in Dalip Singh as well as
in Nathuni Yadav are extremely relevant. Reference to
Kommu Vinja Rao -vs- State of Andhra Pradesh, AIR 1998 SC
2856 is justified. It has next been contended that PW2, Raghu
Rai, should not be believed as he became an Interested
Witness in the second round of proceedings by which time
Accused Om Singh had killed his father. This Bench has
already dismissed the Appeal of Om Singh against his
conviction for that incident. In addition to the Judgments
mentioned above, we may also recall observations made in
Kulesh Mondal -vs- State of West Bengal, AIR 2007 SC 3228
where the Court found no substance in the argument that
witness of close relatives should be found credible. We are also
not convinced that the evidence of Raghu Rai was parrot-like.
54. Learned counsel for the Accused has attempted to dent
the statement of PW 2 and 8 on the ground of inconsistency.
Stress has been laid on the statement of PW2 to the effect that
his evidence was recorded at the site on 19.8.1990, whereas
Rakesh has deposed that the Police did not record any
statement on 19.8.1990. In the first place, the Defence has
failed altogether in establishing the exact time of examination
of PW2 and PW8. In other words, does the timing of when the
statement of PW2 was recorded overlap the presence of PW8
at the scene? In this context, it should be recalled that PW2
has stated that he could not recall the presence of PW8. This
unrebutted position indicates that the statement of PW2 was
not recorded in the presence of PW8. PW2 has deposed that he
ran away from the scene and returned to it only when the
Police was present. Moreover, PW8 has stated that no
statement was recorded on 19.8.90 in his presence. The
contradiction arises if PW2 had deposed that his statement
had been recorded in the presence of PW8.
55. Learned counsel for the Accused, laying emphasis on the
evidence of some of the witnesses, have contended that the
incident of Devender took place on 18.8.90 and not on
19.8.1990 and the body of Arvind Dubey was found on
20.8.1990. At the beginning of his cross-examination PW2 has,
no doubt, stated that the incident took place on 18.8.90, but he
has almost immediately corrected his error by stating that it
took place on 19.8.90 and that the error was inadvertent. In
the cross-examination conducted on behalf of the Accused he
has denied the suggestion that no such incident took place on
19.8.90 and/or that the body of Arvind Dubey was found
following morning. He has also denied the suggestion that the
incident took place on 18.8.1990 and that deceased Devender
was treated at home and removed to Hospital on 18.8.90 when
his condition had deteriorated. In our opinion, the error is
obviously inadvertent and no significance can be attached to it.
Apart from PW2, PW15, who was the Photographer, has stated
that on 19.8.90 at 9:00 A.M. he went to the spot and took the
photographs of the dead body. As we have already observed
above, while his testimony runs counter to the case established
by the Prosecution, it also negates the defence taken on behalf
of the Accused that deceased Devender was injured at some
other spot and at some other time. This witness is unreliable
and his demeanour has already been observed unfavourably by
the learned Additional Session Judge. It appears that a
Departmental Inquiry has been instituted against this witness
and the same is pending. Finally, the Report (Exhibit PW14/A)
of the Crime Team bears the date 19.8.90 in the beginning but
18.8.90 thereafter and also at the end. However, he has
opened his statement on his deposition in Court with a
mention of 19.8.90. Moreover, he has not been cross-examined
on the point now raised by learned counsel for the Accused
before us. The Report as well as deposition of PW14, read
holistically and completely, shows that the witness has not
been careful in preparation of the Report (Exhibit PW14/A).
There has been no cross-examination of this witness, even
though he has only mentioned 19.8.90. It is, therefore, not
open to the Accused to raise the conjectures in this regard.
However, his deposition in Court has not been assailed and,
therefore, we are in no doubt that the date mentioned by him
was actually 19.8.90 and not 18.8.90. The Hospital records
conclusively prove that deceased Devender was brought to the
Hospital on the night of 19.8.90, where he died. The body of
Arvind Dubey was brought to the Hospital on the morning of
20.8.90. It is wholly unbelievable that the assault on Arvind
Dubey could have taken place twenty-four hours earlier and
that his body would lie on the road for one full day.
56. Learned counsel for the Respondent have also
questioned the Prosecution case pertaining to the arrest of the
Accused, especially the fact that no public witnesses are
available. The following paragraph from Karamjit Singh -vs-
State, AIR 2003 SC 1311 immediately comes to mind :-"The
testimony of police personnel should be treated in the same
manner as testimony of any other witness and there is no
principle of law that without corroboration by independent
witnesses their testimony cannot be relied upon. The
presumption that a person acts honestly applies as much in
favour of police personnel as of other persons and it is not a
proper judicial approach to distrust and suspect them without
good grounds. It will all depend upon the facts and
circumstances of each case and no principle of general
application can be laid down". The Court cannot ignore the
position that the public is most reluctant to make a statement
to the Police because they do not want to invite the enmity of
the accused. We find no reason to disbelieve the case of the
Prosecution only on the ground that public witnesses are not
available. Learned counsel for the Defence have also
challenged the murder weapon on several grounds -firstly, that
in the case of arrest no public witnesses are forthcoming. We
reiterate the same answer that we had given on the first point.
We cannot overlook the fact that PW8 has clearly deposed that
the recovery of the knife was made in front of him from the
public park. Secondly, the contention is that since the
recovery has been made from a public park, public witnesses
should have been available. Once again, we reiterate that in
the present time it is extremely difficult for the Police to
garner the support of the respectable section of public, and
this absence should not be taken against the Prosecution. The
evidence speaks of the murder weapon lying hidden in the tall
grass under the Eucalyptus tree. Since the knife was
recovered from a place where it was concealed, learned
counsel for the Accused have not raised any objection
pertaining to the manner of its recovery.
57. So far as the knife is concerned, it has been argued that
PW2 was not confronted with it for the purposes of
identification. There can be no two opinions that PW2 should
have been cross-examined on the issue of the knife as he was
the best placed to depose on this issue having been threatened
with it by Accused Om Singh . This failure, however, does not
lead inexorably to the position that the Prosecution case must
be rejected. It would have indeed strengthened the case of the
Prosecution if the evidence was there. So far as the additional
evidence is concerned, it will be suffice to refer to State of
Haryana -vs- Ram Sarup, AIR 2002 SC 3114 wherein murder
weapon had not been sent for forensic examination. Their
Lordships observed that had this been done, it would have led
to the availability of supportive evidence. Failure to do so did
not mean that the case had to be rejected.
58. In these circumstances it is the forensic or expert
evidence which becomes extremely important. Although it has
been reported that the murder weapon (Exhibit PW8/N)
contains human blood, the exact blood group has not been
identified. The decision in State of Rajasthan -vs- Dhool Singh,
AIR 2004 SC 1264 becomes relevant as a conviction has been
sustained even though it had not been conclusively proved that
the sword which has been recovered was the one used in the
assault. The Court observed that it was apparent from the
injuries that they would have been caused by a weapon akin to
a sword and that was sufficient. In the case before us the
Experts have deposed that the murder weapon could have
caused the injuries that were found on the deceased.
59. Learned counsel for the Accused have also brought to
the surface another failure on the part of the Prosecution viz.
that the glass tumblers in which the Accused and the deceased
had allegedly consumed liquor in front of the shop of PW2 had
not been forensically examined, inter alia, for the purpose of
fingerprints. These lapses are most unfortunate and are the
probable consequence of the reality that the Investigation
Officers (IOs) are not sent for special instructions. It seems to
be assumed that the ordinary police duties, such as
maintaining public peace and tranquillity is akin to
investigation of serious crimes. We can only hope that it is
made a compulsory prerequisite for all IOs to successfully
complete a course on investigative and forensic skills. It has
been our experience that even where the capital offences are
committed very often, fingerprinting is not even thought of. On
this issue there can be no two opinions that the glass tumblers
as well as the plate on which a meat preparation was
consumed by the Accused and the deceased, should not only
have been collected and retained, but also have been sent for
forensic examination. So far as the present case is concerned,
since it is based on the eye witnesses account, absence of
corroborative evidence losses significance. The contention of
learned counsel for the Accused that there is nothing concrete
to link the Accused with the incident is, therefore, without
merit.
60. The Report of the Crime Team has been assailed on the
ground that it fails to mention PW8. We have perused the
Report and find that it was not essential to its veracity that a
mention of PW8 should have been made, since a Form has
been filled-up. It should be observed in this regard that each
and every witness is not expected to prove the entire case.
Furthermore, since the Report mentions 18.8.90, but refers to
both Devender as well as Arvind, either the whole Report must
be ignored or it should be accepted that mention of 18.8.90 is
an inadvertent error. We have already indicated above that we
think it to be an inadvertent error. This is for the reason that it
is inconceivable that the dead body of Arvind would have
remained on the road for one whole day, since it is
uncontroverted that the dead body was taken to the Hospital
on 20.8.90.
61. Learned counsel for the Accused has also tried to
convince us of the material differences in the testimony of
PW19 and 20. If witnesses speak in the same words, that is a
good ground to disbelieve for the reason that they have been
tutored. Minor differences or inconsistencies are not sufficient
ground for rejecting the evidence. So far as the arrest of the
Accused is concerned, the versions are by and large similar.
The Police already reached the village Karkari Mandal where
three Accused were found sitting on a cot, they made a futile
effort to flee. Not all the witnesses will recall the incident in
the same detail; there will always be minor variations (See
Krishan Mochi -vs- State of Bihar, AIR 2002 SC 1965 : JT
2002(4) SC 166), the observations of which have been
reiterated in Kulesh Mondal. Their Lordships had carved out
a dichotomy between material discrepancies and normal
discrepancies and had opined that- "while normal
discrepancies do corrode the credibility of a party‟s case,
material discrepancies do so". The inconsistencies pointed out
by learned counsel for the Accused, in our view, fall in the
category of normal discrepancies.
62. After careful cogitation we are of the opinion that none
of the arguments raised on behalf of the Accused crate a doubt
in our minds as to the Prosecution case.
63. We are of the opinion that the Prosecution has
succeeded in proving the complexity of the Accused, Raju and
Chaman, in the death/murder of Devender and Arvind Dubey,
deceased. PW2, Raghu Rai, has given a graphic account of the
assault, and the individual action of three Accused in the
murder of the deceased. PW8 has similarly given a detailed
account of these events. We find the testimony of those these
eye witnesses to be truthful and relevant. Over half a century
ago the law that has been enunciated by the Supreme Court in
Vadivelu Thevar -vs- State of Madras, AIR 1957 SC 614 in
these words- (1) "As a general rule, a court can and may act on
the testimony of a single witness though uncorroborated. One
credible witness outweighs the testimony of a number of other
witnesses of indifferent character. (2) Unless corroboration is
insisted upon by statute, courts should not insist on
corroboration except in cases where the nature of the
testimony of the single witness itself requires as a rule of
prudence, that corroboration should be insisted upon, for
example in the case of a child witness, or of a witness whose
evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness
is or is not necessary, must depend upon facts and
circumstances of each case and no general rule can be laid
down in a matter like this and much depends upon the judicial
discretion of the Judge before whom the case comes". Kunju -
vs- State of Tamil Nadu, (2008) 2 SCC 151 refers to Vadivelu
Thevar and Jagdish Prasad -vs- State of M.P., AIR 1994 SC
1251 and reiterates that the Court may act on the testimony of
a single witness provided he is wholly reliable, on the logic of
Section 134 of Evidence Act. Vadivelu Thevar has been
followed in Shorabkhan -vs- State of Madhya Pradesh, 1992
Supp (2) SCC 173.
64. Since the Court has before it evidence of two eye
witnesses who have independently deposed that the three
Accused and the two deceased had an altercation in the course
of which Chaman and Raju hit Dubey and held his hands and
Om Singh stabbed him and likewise Devender was hit by Om
Singh and when he got up he was held by Chaman and Raju
and stabbed by Om Singh. This is sufficient to sustain the
conviction of the three Accused who are Appellants before us.
The Appellants would have to disclose the evidence showing
that the version given by the eye witnesses was false. It is
insufficient for the Accused/Appellants to show minor
discrepancies. It is also of no use for them to show
discrepancies in collection and presentation of evidence.
Courts have, time and again, observed that the officers
entrusted with the investigation do not possess requisite
expertise, experience and knowledge in the manner and extent
of collection of evidence. In the present case, however, the
Prosecution case is proved by the two eye witnesses. So far as
the date of incident is concerned, independent evidence is
available in the form of the records of the Hospital; Post-
Mortem on the bodies of both deceased; and the expert
witness which is to the effect that the switch blade or button-
actuated knife which had been recovered (Exhibit PW8/N)
could not cause injuries that were found on the body of the two
deceased.
65. We must now consider the forceful arguments of Mr.
Jain, learned Senior Counsel and Amicus Curiae appearing on
behalf of the Accused/Appellant and of Mr. Sunil Sharma, APP
to the effect that their actions falls within Exception IV to
Section 300 of the Indian Penal Code, 1860 (IPC). It states that
- "Culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a
sudden quarrel and without the offender having taken undue
advantage or acted in a cruel or unusual manner". In such
cases Section 304 of the IPC comes into play. So far as
premeditation is concerned, it is relevant that Om Singh was
carrying a lethal weapon in the form of a blade/button-
actuated knife, size of which was sufficient to cause death.
The statement of PW2 with regard to the possession of the
knife by Om Singh has withstood cross-examination. The
account of the assault on the deceased discloses that neither
of the latter had retaliated or assaulted the Accused. Both of
them were given fist blows and kicks, were held by their arms
by Chaman and Raju and stabbed by Om Singh. The Accused
had, therefore, taken undue advantage as well as acted in a
cruel and unusual manner. In the ordinary course the assault,
in our view, should have been restricted to fist blows and
kicks. Stabbing of the deceased was a deliberate and cruel act.
In Kikar Singh -vs- State of Rajasthan, AIR 1993 SC 2426 their
Lordships observed that - "there must be a mutual combat in
exchanging blows on each other. And however slight the first
blow, or provocation, every fresh blow becomes a fresh
provocation. The blood already heated or warms up at every
subsequent stroke. The voice of reason is heard on neither
side in the heat of passion. Therefore, it is difficult to
apportion between them respective degrees of blame with
reference to state of things at the commencement of the fray
but it must occur as a consequence of a sudden fight, i.e.
mutual combat and not one side track. It matters not what the
cause of the quarrel is, whether real or imaginary, or who
draws or strikes first. The strike of the blow must be without
any intention to kill or seriously injure the other. If two men
start fighting and one of them is unarmed while the other uses
a deadly weapon, the one who uses such weapon must be held
to have taken an undue advantage denying him the entitlement
to Exception 4. True the number of wounds is not the
criterion, but the position of the accused and the deceased
with regard to their arms used, the manner of combat must be
kept in mind when applying Exception 4. When the deceased
was not armed but the accused was and caused injuries to the
deceased with fatal results, the Exception 4 engrafted to
Section 300 is accepted and the offences committed would be
one of murder". The observations to the same effect are to be
found in Dhirajbhai Gorakhbahi Nayak -vs- State of Gujarat,
AIR 2003 SC 2855 and Kulesh Mondal. We, once again,
underscore the fact that neither of these deceased had entered
into a fight with the Accused. So far as Arvind Dubey is
concerned the controversy was only as regards mortgage of
his wrist watch. Devender had merely requested the Accused
not to beat Arvind Dubey, and for this entreaty he has been
stabbed to death. So far as Chaman and Raju are concerned,
they played an active part in the death of the deceased. They
were not idle spectators or mere friends of Om Singh. The eye
witnesses have testified that they had also administered blows
and kicks to both deceased and they also hold the arms of the
deceased, in the absence of which it may have been difficult
for Om Singh to have stabbed the deceased.
66. The unimpeached testimony of the two eyewitnesses
indubitably reveals the factum of active participation of all the
three accused namely Om Singh, Raju and Chaman in
consortium. It is clearly and consistently stated by both the eye
witnesses, that is Rakesh PW 8 and Raghu Rai PW 2, that
Chaman and Raju together with Om Singh gave kick and fist
blows to Arvind Dubey and made him fall on the ground after
which Om Singh took out a switchblade and gave fatal blows
with the said knife on Arvind Dubey‟s chest which blows were
sufficient to cause death in the ordinary course. On Devender
having objected to the diabolic act, he was also given kick and
fist blows; and then Accused Raju and Chaman held Devender
by his arm whereupon Om Singh administered similar mortal
wounds with the knife on the body of Devender.
67. To sustain charges against the accused under Section
302/34 it is necessary that all of them had a common intention
in the furtherance of which some overt or covert act had been
committed by them. It is argued in the alternative by the
learned Defence Counsel for Accused Raju and Chaman that the
alleged incident occurred on the spur of the moment and there
was no premeditation on part of the two accused, hence Section
34 will not be attracted. It is no longer res integra that such a
common intention may develop on the spur of the moment and
where this is proved, it is not necessary for the defence to
further establish the existence of any prearranged plan or prior
meeting of mind (See Dukhmochan Pandey -vs- State of Bihar,
(1997) 8 SCC 405: AIR 1998 SC 40). The existence of a common
intention having formed on the spur of the moment has to be
evident from the facts and circumstances of the case. The facts
adumbrated before us clearly reveal that the Accused Chaman
and Raju first aided Om Singh in carrying out a murderous
assault on Arvind. Even if some doubts as regards the common
intention of the three accused remain in our mind in respect of
the first attack, they are dispelled by the subsequent assault
carried out on Devender moments after the first one, in a similar
consorted manner by the three Accused persons.
68. It has been observed by their Lordships in the case of Raju
Pandurang Mahale -vs- State of Maharashtra, (2004) 4 SCC
371, at page 378 :
16. Section 34 has been enacted on the principle of
joint liability in the doing of a criminal act. The section
is only a rule of evidence and does not create a
substantive offence. The distinctive feature of the
section is the element of participation in action. The
liability of one person for an offence committed by
another in the course of criminal act perpetrated by
several persons arises under Section 34 if such
criminal act is done in furtherance of a common
intention of the persons who join in committing the
crime. Direct proof of common intention is seldom
available and, therefore, such intention can only be
inferred from the circumstances appearing from the
proved facts of the case and the proved circumstances.
In order to bring home the charge of common
intention, the prosecution has to establish by evidence,
whether direct or circumstantial, that there was plan or
meeting of minds of all the accused persons to commit
the offence for which they are charged with the aid of
Section 34, be it pre-arranged or on the spur of the
moment; but it must necessarily be before the
commission of the crime. The true concept of the
section is that if two or more persons intentionally do
an act jointly, the position in law is just the same as if
each of them has done it individually by himself. As
observed in Ashok Kumar v. State of Punjab (1977) 1
SCC 746 : 1977 SCC (Cri) 177 : AIR 1977 SC 109, the
existence of a common intention amongst the
participants in a crime is the essential element for
application of this section. It is not necessary that the
acts of the several persons charged with commission of
an offence jointly must be the same or identically
similar. The acts may be different in character, but
must have been actuated by one and the same common
intention in order to attract the provision.
69. We have considered the judgments given by Mr. Jain on
28.11.2008. In our considered opinion, the ratio of none of these
judgments, which are on the issue of veracity of eye-witness
testimony and conversion of the offence from one punishable
under Section 302 to Section 304 with the aid of Exception IV of
Section 300, is applicable to the facts of the present case.
70. Thus, in light of the facts of the case and the
pronouncements of the Apex Court, we hold all the Accused
guilty under Section 302 read with Section 34 of the IPC. We
concur with the impugned sentence imposed on them, and
dismiss the Appeals which are devoid of merit.
71. We express our gratitude to Mr. Sanjay Jain, learned
Senior Advocate, who has unflinchingly given his time and effort
to assist us an Amicus Curiae on behalf of Om Singh. Although
it is insufficient compensation for the time dedicated by him and
his instructing counsel in both the Appeals, viz. Crl. A.
Nos.127/1999 and 180/1999, we direct the Delhi Legal Services
Authority to pay towards professional fee a sum of Rupees Fifty
Thousand Only within one month from today.
( VIKRAMAJIT SEN )
JUDGE
December 19, 2008 ( V.K. SHALI )
tp JUDGE
