Vineet @ Gapodi vs State
2009 Latest Caselaw 4634 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Judgment Reserved on: 6th November, 2009
                          Judgment Delivered on :13th November, 2009

+                            CRL.APPEAL No.106/2006

       VINEET @ GAPODI                        ...........Appellant
                Through:         Mr.Rajesh Mahajan, Advocate.

                                  versus

       STATE                                    ...........Respondent
                      Through:   Mr.M.N.Dudeja, APP.

+                            CRL. APPEAL No. 163/2009

       SAJID @ SHAMBHU                         ...........Appellant
                 Through:        Ms. Anita Abraham, Advocate.

                                  versus

       STATE                                    ...........Respondent
                      Through:   Mr.M.N.Dudeja, APP.



       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the 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?


PRADEEP NANDRAJOG, J.

1. Appellants Vineet @ Gapodi and Sajid @ Shambhu

have been convicted for the offence of having murdered Gopal

and for the offence of having attempted to murder Bhagat Singh

PW-1. Three other co-accused, namely, Sunil, Sachhe Ram and

Vickey have been acquitted. The trial of the sixth co-accused

was conducted before a Juvenile Court as he i.e. Deepender was

a juvenile when the crime was committed. It may be noted that

Deepender has been acquitted.

2. A perusal of the impugned judgment and order dated

26.10.2005 shows that Sunil, Sachhe Ram and Vickey have been

acquitted because no witness, not even Bhagat Singh PW-1,

stated anything against them. The appellants have been

convicted on the sole testimony of Bhagat Singh PW-1. We note

that Sumitra PW-5, who was also cited as an eye-witness turned

hostile and denied having witnessed the incident. The other

evidence held incriminating against the appellants is the recovery

of a shirt each by the two appellants which they claimed, as per

their disclosure statements, to be worn by them when the crime

was committed, which shirts were found to be stained with

human blood, group whereof could not be determined. Against

appellant Vineet further incriminating evidence is the recovery of

a knife, which was opined by the doctor who conducted the post-

mortem of the deceased Gopal to be the possible weapon of

offence.

3. It is apparent that everything would turn on the

testimony of Bhagat Singh PW-1, who indisputably received stab

injuries on the day of the incident, i.e. 03.04.2003 as finds

mentioned in the MLC Ex.PW-10/C which records that Bhagat

Singh was admitted at Lok Nayak Hospital at 1.30 PM. He was

having three stab injuries on the temporal region and the

epigastric region. As noted above, the learned Trial Judge has

held that the testimony of Bhagat Singh PW-1 is without blemish

and inspires confidence.

4. We propose to note the contentions urged by learned

counsel for the appellants and thereafter note the case of the

prosecution and the evidence in support thereof.

5. With reference to the admission of Bhagat Singh PW-1

that he did not know the name of the appellants prior to

02.04.2003 and that he did not know their names when he

deposed in court on 19.11.2003 as also the admission of SI

Rajneesh Kumar PW-21 that on the day of the incident he brought

the dossiers of appellants Gapodi and Shambhu and showed

them to Bhagat Singh, it was urged that it was apparent that

Bhagat Singh did not know the name of the appellants and that

their names find a mention in the statement Ex.PW-1/A made by

Bhagat Singh and recorded by SI Rajneesh Kumar PW-21 which

has formed the basis of the First Information Report requires an

inference to be drawn that Bhagat Singh named the appellants at

the instance of SI Rajneesh Kumar after SI Rajneesh Kumar

showed the dossiers of the appellants to Bhagat Singh. Taking

this argument a little further, with reference to the FIR Ex.PW-6/B

which records that it was dispatched to the Area Magistrate on

04.04.2003 at 8.30 AM, it was urged that the FIR was ante-time

and that the recording contained therein that it was registered at

3.10 PM on 03.04.2003 is manipulated. In a nutshell, it was

urged that after the incident in which Gopal died and Bhagat

Singh was injured, nobody knew the names of the assailants. The

police was maintaining the dossiers of the appellants and SI

Rajneesh Kumar manipulated the name of the appellants in the

statement of Bhagat Singh which purportedly was recorded at

2.45 PM but as a matter of fact was recorded much after 7.00 PM

resulting in an ante-timed FIR being registered. Since Bhagat

Singh named the appellants at the instance of SI Rajneesh

Kumar, his testimony stood discredited.

6. Further, in an attempt to discredit PW-1, the counsel

pointed out two more variations in the statements given by PW-1.

First being that in his examination-in-chief, PW-1 deposed that

appellant Sajid gave the fatal knife blows to the deceased, but on

being cross-examined by the counsel for State in this regard, he

stated that appellant Vineet inflicted the knife blows on Gopal.

Second discrepancy pointed out is that in statement Ex.PW-1/A

made to the police, PW-1 stated that he was the driver of the RTV

in which the incident took place, but in his deposition before the

court, he stated that he was a Government servant working in

Delhi Jal Board. With reference to these inconsistencies, the

counsel urged that from the fact that PW-1 has fumbled at places

in his statements, an inference of his being an untruthful witness

and deposing at the tutoring of the prosecution can reasonably

be drawn.

7. Next, it was submitted by the counsel, that the

evidence of recovery of a blood stained T-shirt worn by appellant

Sajid @ Shabhu and a blood stained shirt worn by appellant

Vineet @ Gapori, at the time of the incident as recorded in

seizure memos Ex.PW-21/P and Ex.PW-17/A, at their behest,

pursuant to their disclosure statements Ex.PW-21/O and Ex.PW-

21/R was doubtful and appeared to be planted. Further, it was

urged that the recovery of knife claimed to be used in the offence

as recorded in seizure memo Ex.PW-17/C, at the instance of

appellant Vineet @ Gapori pursuant to his disclosure statement

was also planted against the appellant.

8. Pertaining to appellant Sajid @ Shambhu, apart from

the afore-said submissions, learned counsel additionally

submitted that PW-1 does not attribute any specific role to

appellant Sajid @ Shambhu with respect to the stabbing of

Gopal; the only role alleged by PW-1 against appellant Sajid @

Shambhu is that he caught hold of PW-1 to facilitate appellant

Vineet to inflict knife blows on him. As a result, it cannot be said

that a common intention to cause death of Gopal, existed or was

formed at the spur of the moment, between appellant Sajid @

Shambhu and appellant Vineet. Therefore, at best, he can be

convicted for an attempt to murder Bhagat Singh PW-1 and no

more.

9. Lastly, for both appellants, learned counsel urged

that if at all the appellants are found guilty, then, at best they

can be convicted for the offence punishable under Section 304

Part II IPC. The reason being, the appellants had no motive to kill

Gopal as they had no prior enmity with him. Learned counsel

urged that it is not in dispute that the actual target of the

assault was PW-1 and that Gopal was assaulted only when he

attempted to save PW-1, and as such, there being no intention

on part of appellants to murder the deceased, and the death

having been caused in the heat of passion, at best a case under

Section 304 Part II IPC is made out.

10. Before dealing with the arguments set forth by the

counsel for the appellants in paras 5 to 9 above, we broadly

note the case of the prosecution.

11. The case of the prosecution is that at about 6.00 PM

on 02.04.2003 i.e. a day prior to the day when deceased Gopal

was put to death and Bhagat Singh was critically injured, the

appellants and their associates Sunil @Rinku, Vickey Gupta,

Sachhe Ram and Deepender were extorting money from the

drivers of TSRs parked at Karawal Nagar Chowk. Bhagat Singh

PW-1, who was present there at that time, being a social worker,

intervened in the matter and as a result the appellants and their

associates went away. But on the next day i.e. on 03.04.2003, at

about 1.00 PM, when Bhagat Singh was in the RTV bearing No.DL-

1V-A-0947, both the appellants and their associates attacked

him. While appellant Sajid caught hold of him, appellant Vineet

inflicted knife blows on him. Gopal, a helper in the bus was also

present there and when he tried to save Bhagat Singh, appellant

Vineet stabbed him. Thereafter the appellants and their

associates fled away.

12. The process of criminal law was set in motion when at

1.17 PM on 03.04.2003 HC Nirmala PW-6 the duty officer at PS

Timarpur received information from the PCR about the stabbing

of a person near Balak Ram Bus Stand, Timarpur and recorded

DD No.15/A Ex.PW-6/A. A copy of said DD was entrusted to SI

Rajnish Kumar PW-21 for investigation. He along with a constable

reached the spot and on learning that the two injured had gone

to Sushruta Trauma Centre, he went there. He found the two

injured; namely, Bhagat Singh and Gopal admitted in the

hospital; both were fit for making statements. He recorded

statement Ex.PW-1/A of Bhagat Singh wherein Bhagat Singh

stated that he was the driver of RTV bearing No.DL-1V-A-0947

and at around 1.00 PM on that day i.e. 03.04.2003, when he was

present in said RTV with Gopal, appellants Shambhu and Gapori

attacked him. When Gopal tried to save him, Gapori stabbed

Gopal.

13. SI Rajnish Kumar made an endorsement Ex.PW-21/A

under said statement of Bhagat Singh and sent it for registration

of an FIR. An FIR Ex.PW-6/B was registered under Sections

307/34 IPC at 3.10 PM. SI Rajnish got the spot and the RTV in

question photographed and made the relevant seizures. Since at

2.25 PM, Gopal succumbed to his injuries and was declared dead,

FIR was amended and Section 302/34 IPC was added thereto. SI

Rajnish Kumar filled in the requisite inquest papers and sent the

body to the mortuary of Civil Hospital, Sabji Mandi, Delhi for the

conduct of post-mortem. Dr.Ashok Jaiswal PW-18 conducted the

post-mortem and noted four incised wounds on the body of the

deceased, one linear scratch on his right forearm and one

abrasion injury below his left eye. He opined that the cause of

death of Gopal was haemorrhagic shock and that injury No.2 was

sufficient to cause death in the ordinary course of nature. It may

be noted that injury No.2 had pierced the upper lobe of the left

lung cutting the aorta resulting in excessive bleeding.

14. The appellants were arrested. On interrogation they

made disclosure statements and pursuant thereto got recovered

the blood stained clothes worn by them at the time of the

incident. Pursuant to his disclosure statement, appellant Vineet

also got recovered a knife used in the offence. The said knife was

sent to Dr. Ashok Jaiswal PW-18, who opined the same to be the

possible weapon of offence.

15. After the completion of the investigation, the

appellants and the co-accused were put to trial. Prosecution

examined 25 witnesses. Since the issue in appeal needs to be

adjudicated with reference to the afore-noted submissions made

by learned counsel as noted in paras 5 to 9 above, we note the

relatable evidence thereto.

16. Bhagat Singh PW-1 is the star witness of the

prosecution since Sumitra PW-5 another stated eye-witness has

turned hostile. In his examination-in-chief, Bhagat Singh deposed

as under:-

"I am a Govt. Servant and is working in Delhi Jal Board. On 2.4.2003 at about 6 PM I saw two accused persons whose names I do not know but this witness pointed out towards accused Sajid and accused Vineet and states that they standing at Karawal Ngr. Chowk and were snatching money from TSR drivers. People had gathered there. The said people and Sajid Ali were quarreling with each other. I intervened and separated Sajid Ali from the said person being a social worker also. Next day i.e. on 3.4.2003 at about 1 PM the RTV bearing No. DL-IV-A- 0947 belonging to my friend namely Inder Singh Negi was stationed/parked at Timar Pur Balak Ram Hospital bus stand to fetch the school children. I was sleeping in the said RTV vehicle.

The helper namely Gopal was also in the said RTV. Accused Sajid Ali caught hold of me and accused Vineet gave me a blow of knife saying that my name is Gapori having a big knife ad measuring approximately 1 ft. Accused Sachhe Ram was holding a desi katta, accused Vickey Gupta was also standing with them. I do not know whether accused Rinku @ Sunil was with the accused persons or not. One other boy namely Jitender @ Bittoo was also with accused persons and his case is being tried in Juvenile Court. Thereafter accused Sajid gave two knife blows to Gopal. Thereafter accused persons ran away from the said place. Public had gathered there and someone had rang PCR. I waited for fifteen minutes and PCR Van failed to come there I drove said RTV to Roma Centre, Chandagi Ram Akhara. I was in an injured condition and one of my intestines has oozed out. Gopal was also lying in the said RTV. In my presence, injured Gopal was got down from the RTV and was taken inside the hospital by the doctor and other persons. Thereafter I lost my consciousness......".

17. On being cross-examined by the learned APP, Bhagat

Singh PW-1 stated as under:-

" I had told the police that I was driver of said RTV on the day of the incident alone as the school children were to be picked up. I was asked by owner of RTV to take RTV from B.R.Hospital to Karawal Nagar. (Vol.) It is correct to suggest that the associates of accused Gapori @ Vinees and Sajid Ali caught hold of Gopal and accused Vineet @ Gapori gave knife blow to deceased Gopal...."

18. On being cross-examined by the counsel for the

accused Vineet, he stated as under:-

"...I had no enmity with accused and neither I knew their names earlier to 2.4.2003. I had not seen accused persons prior to 2.4.2003..."

19. HC Nirmala PW-6, deposed that on 03.04.2003 she

was the duty officer at PS Timarpur from 9.00 AM to 5.00 PM. At

around 1.17 PM she received a call regarding the stabbing of a

person near Balak Ram Hospital, Timarpur by 3-4 persons, she

recorded DD No.14-A to this effect and sent a copy of the same

to SI Rajneesh Kumar. At about 3.10 PM she received a ruqqa

sent by SI Rajneesh Kumar and on basis thereof she registered

FIR No.143/2003 Ex.PW-6/B under Section 307/34 IPC. The said

witness was not cross-examined on the issue of the time when

she received the ruqqa and recorded the FIR. The only question

put to her was, to which she replied that it was correct that in

DD No.14-A the name of the assailant was not mentioned.

20. It may be noted here that in the FIR it stands

recorded that it was dispatched to the Court of the learned

Magistrate on 4.4.2003 at 08:30 hours.

21. SI Rajnish Kumar PW-21, deposed that on 03.04.2003

DD No.14-A was assigned to him for investigation. Accompanied

by other staff he reached the spot near Balak Ram Bus Stand

Timarpur. On learning that one of the injured had taken the

other to Sushruta Trauma Centre, he also went to said hospital.

He noticed an RTV bearing No.DL-IV-A-0947 parked outside the

hospital with blood lying on its floor board. On enquiring from

the hospital authorities, he learnt that the injured namely Gopal

and Bhagat Singh were admitted in the hospital and were fit to

make statements. He recorded statement of Bhagat Singh,

made an endorsement thereunder and sent it for registration of

an FIR. He got the RTV and the spot photographed. After some

time injured Gopal succumbed to his injuries. He made the

relevant seizures and recorded statements of witnesses. He

then went to PS Gokulpuri and brought dossiers of appellants

Gapori and Shambhu, showed them to Bhagat Singh who

identified the persons in the photographs on the dossiers as the

assailants.

22. In his cross-examination, he clarified that it was

around 7.00 PM when Bhagat Singh PW-1 was shown the

photograph of appellant Vineet @ Gapori from which he

identified Gapori. He denied the suggestion that Bhagat Singh

first saw the photograph and then named the appellant in his

statement Ex.PW-1/A which formed the basis of the FIR.

23. It is no doubt true that in the FIR Ex.PW-6/B it stands

recorded that the same was sent to the Area Magistrate at 8:30

hours on 4.4.2003. It is apparent that there is a delay in

forwarding the FIR to the Area Magistrate. But we note that

reason for the delay has not surfaced for the reason PW-6 nor

the investigating officer has been cross-examined as to why the

FIR was sent so belatedly to the Area Magistrate.

24. HC Nirmala PW-6 has categorically deposed that she

received the ruqqa sent by SI Rajnish Kumar at 3:10 PM on

3.4.2003. Said testimony of hers has not been challenged. She

has not been cross-examined with reference to said testimony.

Thus, from the mere fact that the FIR was forwarded to the Area

Magistrate after more than 17:00 hours of it being registered, it

cannot be said that a presumption needs to be drawn of

something being hanky panky. A somewhat similar situation

existed in the decision reported as (2005) 9 SCC 298 Sunil

Kumar vs. State of Rajasthan. It was held that in the absence of

giving an opportunity to the investigating officer to explain the

delay in forwarding the FIR to the Area Magistrate, no adverse

inference could be drawn pertaining to the time when the FIR

was registered.

25. If the FIR was registered at 3:10 PM, that SI Rajnish

showed the dossiers of the appellants to Bhagat Singh at 7:00

PM makes no difference. It is apparent that SI Rajnish did so to

seek confirmation that the person who was boasting his name

as Gapodi when he stabbed Bhagat Singh and the other person

named Shambhu were the ones whose photographs existed on

the dossiers. It is apparent that the appellants were listed bad

characters of the area.

26. Appellants can draw no sustenance from the fact that

Bhagat Singh stated during cross-examination that prior to

2.4.2003 he did not know the names of the appellants nor had

he seen them prior to 2.4.2003. Nor can the appellants gain any

benefit from the fact that Bhagat Singh stated in Court that he

did not know the names of the appellants. Our reason for so

holding is that while deposing in Court, Bhagat Singh clearly

stated that on 2.4.2003 he saw the appellants, whose name he

did not know, when they were snatching money from TSR

drivers. He clearly deposed that on 3.4.2003 Sajid caught him

and Vineet gave him a blow with a knife saying that his name

was Gapori. No supplementary question has been put to Bhagat

Singh as to how did he disclose the names of the appellants in

his statement Ex.PW-1/A. Had such a question been put to him,

he would have answered the same and depending upon the

answer, the issue could have been debated.

27. From the testimony of Bhagat Singh it is apparent

that appellant Vineet @Gapodi was bragging, as street

hoodlums normally do; telling his name while stabbing Bhagat

Singh. Gangsters do so to instill fear in the mind of the victim.

We note that Bhagat Singh has merely stated that on 2.4.2003

he did not know the names of the appellants. He did not state

that on 3.4.2003 he did not know the name of the appellants.

We reiterate that no cross-examination has been done with

respect to the knowledge of Bhagat Singh as on 3.4.2003 of the

names of the appellants. That after seven months of the

incident, Bhagat Singh did not know the names of the appellants

is also explainable for the reason he had heard of their names

only once on 3.4.2003 and immediately after the incident he

disclosed their names to the investigating officer. In connection

with this, it is relevant to note that the incident took place at

around 1.00 PM. DD No. 15-A pertaining to the incident was

recorded at PS Timarpur at 1.17 PM. A copy of the DD was

entrusted to SI Rajneesh Kumar PW-21 for investigation; who

first went to the spot i.e. near Balak Ram Bus Stand, Timarpur,

and from there went to Sushruta Trauma Centre, where the

injured were admitted. At the hospital, he recorded statement

Ex. PW-1/A of Bhagat Singh and as recorded in endorsement

Ex.PW-21/A, sent it for registration of an FIR at 2.45 PM. So

short is the gap between the time of occurrence and the time

when the statement of the complainant was recorded and sent

for registration of a case, that the possibility of any manipulation

in the recording of the statement is ruled out.

28. With the passage of time memory fades. The mind

remembers the core of an incident and at fringes the picture

becomes hazy.

29. It may be re-assured that Bhagat Singh clearly

identified the appellants as the ones who participated directly

while assaulting him. No motive on the part of Bhagat Singh to

falsely implicate the appellants has been brought out.

30. It is fairly well settled that the testimony of an injured

eye-witness has to be accepted if it is by and large credible. The

reason being, a victim of an assault would seldom let go the real

culprits who injured him and inculpate innocent persons in their

place. See the decisions reported as AIR 2008 SC 3259 Dinesh

Kumar vs. State of Rajasthan, 2007 (8) SCALE 649 Sukhdev vs.

State of Punjab, AIR 1994 SC 1624 Brijpal Singh & Ors. vs. State

of U.P. & Ors. and AIR 1985 SC 386 Mer Dhana Sida vs. State of

Gujarat.

31. That Bhagat Singh had to correct himself with respect

to the role of Sajid Ali in the death of Gopal; correction being

made when a leading question was put to him by the learned

APP does not discredit Bhagat Singh. When the number of

persons who participate in the commission of a crime are many

and the narrative of the incident is being made after a few

months there is a possibility of the narrator incorrectly assigning

the role of one to the other. If the narrator corrects himself on

being asked a leading question with reference to his

contemporaneous statement soon after the incident, it can

hardly be a ground to label him as an untruthful witness.

32. That in his examination-in-chief Bhagat Singh stated

that he was an employee of the Delhi Jal Board and in his

statement Ex.PW-1/A he stated that he was the driver of the RTV

also does not make him an untruthful witness. That Bhagat

Singh was an employee of the Delhi Jal Board was so stated by

him when he deposed in Court on 19.11.2003. It is apparent

that Bhagat Singh disclosed his occupation as on the date of his

statement. He never stated that he was employed with the

Delhi Jal Board when the incident took place. That apart, in his

examination-in-chief he clearly stated that the RTV belonged to

his friend Inder Singh Negi who had employed Gopal as a helper.

In his cross-examination he stated that his friend asked him to

drive the RTV on the day of the incident as school children had

to be picked up.

33. Thus, we hold that the findings of fact returned by

the learned Trial Judge against the appellants are correct.

34. Pertaining to the death of Gopal, evidenced by the

post-mortem report Ex.PW-18/A and the testimony of Dr.Ashok

Jaiswal PW-18 there is hardly any scope for a debate that the act

by which Gopal suffered death would be murder if the necessary

intention can be attributed to the doers of the act.

35. From the testimony of Bhagat Singh it is apparent

that the knife blows were inflicted upon Gopal by Vineet

@Gapori. Thus, Vineet @Gapori has to suffer the consequences

of his acts. With reference to the testimony of Bhagat Singh it is

apparent that Sajid @Shambhu caught him and Vineet @Gapori

stabbed him. Three stab injuries have been inflicted upon

Bhagat Singh. Thus, it is apparent that Sajid kept holding

Bhagat Singh to facilitate the blows being inflicted upon him by

Vineet. The vicarious liability of Sajid is apparent.

36. The injuries on Bhagat Singh are life threatening and

thus we hold that the appellants have been rightly convicted for

the offence punishable under Section 307/34 IPC.

37. Pertaining to appellant Sajid qua the death of Gopal,

it is true that no specific role has been assigned to Sajid in the

death of Gopal. Bhagat Singh has stated that the associates of

Gapori and Shambhu held on to Gopal when Gapori stabbed

him. Which associate caught hold of Gopal, has not been

stated.

38. But the circumstance under which Gopal was

attacked has to be considered. From the testimony of Bhagat

Singh it is apparent that both appellants and the other co-

accused had come to take revenge for being prevented by

Bhagat Singh on the previous day, from extorting money from

the TSR drivers. From the testimony of Bhagat Singh it is

apparent that he was directly targeted by the appellants with

Sajid demobilizing him by catching him and Vineet inflicting the

knife blows on Bhagat Singh. Gopal was targeted as he

intervened to save Bhagat Singh. It is apparent that both

appellants shared a common intention to murder Bhagat Singh,

as also a common intention that if anyone intervened to save

Bhagat Singh, they would overcome the resistance. It is settled

law that if in the doing of an offence, evidence establishes, that

the accused had intended to overcome all resistance to achieve

their common intention, the accused would be presumed to be

having a common intention to do all acts to overcome the

resistance.

39. Dealing with organized gangsterism and organized

crime, the Courts have to be vigilant enough not to lose sight of

the backdrop facts. In the instant case, the backdrop facts are

that the appellants and their associates were extortionists and

were moving around fully armed. A reasonable presumption can

be drawn that each one of them shared a common intention. It

can reasonably be presumed that the common intention was to

overcome resistance and overpower anyone who resisted the

act of extortion or prevented them from extorting money.

40. Though the State has not challenged the acquittal of

the co-accused, we note that there is sufficient evidence against

them in the commission of the crime.

41. The learned Trial Judge has let off the co-accused

because Bhagat Singh apparently said nothing about them

except for their presence. The learned Trial Judge has ignored

that Bhagat Singh has clearly said that the associates of the

appellants, meaning thereby the three co-accused who have

been acquitted, had caught hold of Gopal when Gapori stabbed

him. Their roles have been clearly defined. Further, Bhagat

Singh has categorically stated that Sachhe Ram was holding a

desi katta in his hand and Vicky Gupta was standing there when

he was stabbed.

42. The learned Trial Judge lost sight of the fact that

organized gangsterism may not require active participatory role

to be played by all. Six gangsters, as in this case, may surround

a victim with only two assaulting him and the four hanging

around. The fact that four are merely hanging around would not

ipso facto mean that they had no role to play. The threatening

presence of the four is intended to scare the persons in the

vicinity who might otherwise intervene to save the victim. An

act may be committed positively. It may be committed

negatively. When organized crime takes place, the co-horts

who stand around menacingly are obviously there to instill fear

in the minds of the victims and the persons in the vicinity and by

their very presence participate in the commission of the crime, if

not more, by preventing rescue.

43. It is settled law that if the reasoning of the learned

Trial Court in acquitting some of the accused is wrong, the

relatable evidence can still be looked into by the Appellate

Court. See the decision reported as AIR 1962 SC 1211 Surender

& Ors. vs State of Punjab.

44. We find no merits in the appeals which are dismissed.

45. Since the appellants are in jail, copy of this order be

sent to the Superintendent, Central Jail, Tihar for being made

available to the appellants.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE November 13, 2009 sb / dk