Delhi High Court
Vinod Solanki vs Dalel Singh & Ors on 21 October, 2009
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 12th October, 2009
Judgment Delivered on: 21stOctober, 2009
CRL.REV.P.581/2000
VINOD SOLANKI ..... Petitioner
Through: None.
Versus
DALEL SINGH & ORS. ..... Respondents
Through: Mr.Mohit Mathur with
Mr.Vishwajit Singh and
Mr.Shikhar Jain, Advocates for
Respondent Nos. 1 to 6.
Ms.Fizani Husain, APP for the
State/Respondent No.7.
CRL.A.576/2000
RAKESH KUMAR ..... Appellant
Through: Mr.Mohit Mathur with
Mr.Vishwajit Singh and
Mr.Shikhar Jain, Advocates.
Versus
STATE OF N.C.T. OF DELHI
..... Respondent
Through: Ms.Fizani Husain, APP.
CRL.A.671/2000
DALEL SINGH ..... Appellant
Through: Mr.Mohit Mathur with
Mr.Vishwajit Singh and
Mr.Shikhar Jain, Advocates.
Versus
STATE OF N.C.T. OF DELHI ..... Respondent
Through: Ms.Fizani Husain, APP.
AND
Crl.Rev.P.581/2000 and Crl.A.Nos.576/2000,671/2000 & 360/2004 Page 1 of 24
CRL.A.360/2004
PREM WATI ..... Appellant
Through: Mr.Mohit Mathur with
Mr.Vishwajit Singh and
Mr.Shikhar Jain, Advocates.
Versus
STATE ..... Respondent
Through: Ms.Fizani Husain, APP.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
INDERMEET KAUR, J.
1. This judgment will dispose of the aforementioned appeals
which have arisen out of a common incident dated 14.7.1997
which had become the subject matter of FIR No.447/1997
registered under Sections 304/452/34 IPC P.S. Dabri.
2. Accused Dalel Singh, Ved Parkash, Khazan Singh, Mam
Chand, Ramesh, Rakesh Kumar and Ram Dass i.e. seven persons
had been set up for trial in the first instance. Vide judgment dated
26.8.2000, all the accused persons except accused Ram Dass had
been convicted for the offence punishable under Section
147/148/452/149/304-II/149/501-I/149 of the IPC. They had been
sentenced to undergo RI for one year for the offence punishable
under Section 147 of the IPC; RI for two years for the offence
punishable under Section 148 of the IPC; RI for three years and a
fine of Rs.500/- in default of payment of fine RI for three months
for the offence punishable under Section 452/149 of the IPC; for
the offence punishable under Section 506-I/149 of the IPC the
aforestated convicts have been awarded RI for one year; for the
offence punishable under Section 304-II/149 of the IPC Accused
Dalel Singh, Khazan Singh, Ramesh, Mam Chand and Ved Prakash
were awarded the substantive sentence of the imprisonment
already undergone by them besides a fine of Rs.10,000/-; in
default of payment of fine to undergo RI for two years. Out of the
total fine deposited Rs.45,000/- was to be paid to the widow of the
deceased by way of compensation. Accused Rakesh Kumar had
been sentenced for the offence punishable under Section
304-II/149 of the IPC to undergo RI for a period of five years and to
pay a fine of Rs.10,000/-; in default of payment of fine RI for two
years, out of which an amount Rs.9000/- was to be paid to the
share of the widow of the deceased. Accused Ram Dass had been
acquitted of all the charges leveled against him.
3. Accused Rakesh Kumar has challenged this order of
conviction and sentence vide Crl.A.No.576/2000. Dalel Singh had
challenged the order of conviction and sentence vide
Crl.A.No.671/2000.
4. Accused Prem Wati had not been arrested in the first
instance. She had been evading arrest and a supplementary
charge-sheet had been filed against her. Vide impugned
judgment dated 15.4.2000, she had been convicted for the
offence punishable under Sections 147/148/149/304-II/501-I/452
of the IPC vide order of sentence dated 19.4.2004. She had been
sentenced to undergo RI for one year for each of the offence
punishable under Section 147/148/149 of the IPC. She had been
sentenced to undergo RI for three years and to pay a fine of
Rs.10,000/-; in default of payment of fine to undergo RI for 10
months for the offence punishable under Section 304-II of the IPC.
She had further been sentenced to undergo RI for one year and to
pay a fine of Rs.1000; in default of payment of fine to undergo RI
for one month for the offence punishable under Section 452 of the
IPC. For the offence punishable under Section 506 Part I of the IPC
she had been sentenced to undergo RI for one year. This
judgment and order of sentence was challenged by Prem Wati
vide Crl.A.No.360/2004.
5. Vinod Solanki was the complainant in this case. Vide
Crl.Rev.P.No.581/2000 he had challenged the order of sentence
dated 30.8.2000 inflicted upon Dalel Singh, Ved Prakash, Khazan
Singh, Mam Chand, Ramesh and Rakesh Kumar and had sought
enhancement of their sentence.
6. The facts as culled out by the prosecution are as follows:
(i) On 14.7.1997 between 9 to 10 PM Dalel Singh along
with his wife Prem Wati, his four sons Khajan Singh, Ramesh,
Rakesh Kumar and Ved Prakash along with Mam Chand and
Ram Dass had trespassed into the house of deceased Shri
Krishan i.e. house no. QZ 791, Palam Village, New Delhi.
Dalel Singh along his family was living in the house opposite
the house of the deceased Shri Krishan. The accused
persons were armed with dandas, lathis, iron rods and a
brick. At that time, the house of the victim was locked;
hearing noises and cries, Shri Krishan unbolted the entrance
door. Dalel Singh, Rakesh, Khazan Singh, Ramesh, Ved
Prakash & Mam Chand along with the wife of Dalel Singh i.e.
Prem Wati came inside the house; Ved Prakash and Rakesh
were holding dandas and Mam Chand and Ramesh were
having iron rods. Dalel Singh was holding a lathi and wife of
Dalel was having a piece of brick in her hand. Ramesh was
exalting the other co-accused 'Mar Do Salon Ko Taki Roz Ka
Jhagda Khatam Ho'. Khazan Singh had caught hold of Shri
Krishan; Prem Wati threw a piece of brick upon him which hit
him on his nose; efforts to save the victim by his son Vinod
were frustrated when Dalel Singh and Ved Prakash pushed
Vinod with a force pursuant to which he fell down. Rakesh
holding a danda struck Shri Krishan on his head as a result
of which Shri Krishan fell down. The injured was removed to
DDU hospital, where he was declared brought dead.
(ii) Statement of Vinod the son of deceased Shri Krishan
Ex.PW-2/A was recorded in the hospital whereupon this
investigation was set into motion. The rukka was
dispatched at 1.05 AM in the early morning hours of
15.7.1997 pursuant to which the present FIR was registered.
(iii) Two sons of the victim Shri Krishan have been
examined. Vinod PW-2 was an eye-witness to the incident;
the second son of the victim Nitu who had reached the spot
immediately after the incident and saw his father lying in an
unconscious condition has been examined as PW-1; wife
Sheela Devi was also a an eye-witness and she has been
examined as PW-3. Shukhbir PW-6 was the elder brother of
the victim. Another brother of the victim Jai Bhagwan has
been examined as PW-4. Injured had been removed to the
DDU hospital where he was examined by Dr.Vijay Kumar
PW-12 vide MLC Ex.PW-12/A noting that the patient had
been brought dead in the casualty. Dr.Komal Singh PW-7
had conducted the post-mortem on the deceased and the
cause of death was opined as death due to comma caused
by head injury; head injury was sustained by a blunt impact
on the head sufficient to cause death in the ordinary course
of nature. His report had been proved as Ex.PW-7/A. Vide
Ex.PW-7/C a subsequent opinion had been given by
Dr.Komal Singh on the weapon of offence i.e. the bamboo
danda which had been produced before him. His opinion
was to the effect that the swelling on the occipital region of
scalp could have been caused by this weapon. The
investigating officer SI Rakesh Giri had come into the
witness box as PW-14.
7. On behalf of the accused it has been argued that the
judgment of the trial court suffers from several infirmities.
(i) Testimony of the eye-witnesses PW-2 and PW-3 is
liable to be disbelieved as they are close relations of the
victim being the son and the wife of the deceased and being
interested witnesses. Their testimony has to pass the test of
a strict scrutiny and they have failed to pass this test. Their
conduct is highly unnatural; they had made no efforts to
save the victim and this is evident from the fact that neither
of them have received any injuries; reliance has been placed
upon AIR 1993 SC 1462 Anil Phukan vs. State of Assam to
support this submission. Attention has been drawn to the
cross-examination of PW-2; when confronted with his earlier
statement made before the police Ex.PW-2/A wherein
improvements made by the witness on oath in court have
been pointed out. It is submitted that in his first statement
before the investigating officer PW-2 had not stated that
when he was returning back along with his mother to the
house, Dalel Singh and his four sons were standing in the
lane. The details of the arms carried by the accused persons
had also not been mentioned in his first statement. PW-3
had also been confronted with his statement Ex.PW-3/DA
made before the investigating officer. It is submitted that in
her first statement PW-3 had not mentioned that Dalel
Singh, Mam Cand and Rakesh were talking outside the
house of Dalel Singh when she bolted the entrance gate of
her house. The omissions in this statement had also been
pointed out qua her version on oath in court. It is submitted
that in her statement before the investigating officer she
had not mentioned that Ram Das had also accompanied the
accused persons or that he was holding a danda and this
had found mentioned for the first time in her version on oath
in court.
(ii) The weapon of offence i.e. the danda has a length of
116.4 cms i.e. approximately 4 feet. The incident had taken
place in the gallery of the house. On this score, attention
has been drawn to the version of PW-1 who has admitted
that the gallery in the house is 15 to 20 feet in length and
the width is about 3 to 3 ¼ feet. Investigating Officer PW-14
has stated that the height of the gallery his 7 feet. Attention
has also been drawn to the site plan Ex.PW-14/B; Mark A
being the place where the victim was found lying in an
unconscious state. In these circumstances, it would not
have been possible to swing this weapon of offence which is
four feet in length in a circumference of a gallery having a
height of only seven feet and being not more than three feet
wide.
(iii) Medical report is inconsistent with the oral version of
the eye-witnesses, namely, PW-2 and PW-3. It is submitted
that as per the version of PW-2, Khazan Singh had caught
hold of the deceased by putting his arms from behind
whereupon accused Rakesh holding a danda struck him on
the head; since this injury was inflicted while the deceased
was being held from the back, the injury suffered by the
victim should have been on the nape of his neck. Attention
has been drawn to the post-mortem report Ex.PW-7/A where
swelling had been noted on the occipital region and a linear
fracture had been noted on the occipital bone. It is
submitted that the occipital region being the front portion of
the head; this medical evidence is contrary to the oral
version of the eye-witnesses.
(iv) There is no explanation as to why material witnesses
i.e. Rishi Prakash and Kavita have not been examined.
(v) Role attributed to each accused has not been defined;
reliance has been placed upon 1977 SCC (Crl.) 538 Hiralal
Mallick vs. State of Bihar in support of this argument.
(vi) Recovery of the danda was effected pursuant to the
disclosure statement of Rakesh which was recorded on
24.9.1997 i.e. after a lapse of more than two months; the
danda as per the version of Jai Bhagwan PW-4 who was a
witness to the recovery was admittedly from an open place
which was accessible to all; such a recovery has no sanctity
in the eye of law.
(vii) Unequal sentences for identical offences is also not
permitted; Rakesh, Dalel and Prem Wati have all been
awarded separate sentences; Rameshwar Dayal vs. State of
U.P. 1971 (3) SCC 924 prohibits such a policy.
8. For all the aforestated reasons, it is clear that the
investigation is tainted and benefit of doubt has to accrue in
favour of the appellants entitling them to an acquittal.
9. The record has been perused and the submissions and the
counter-submissions made by the respective parties have been
appreciated.
10. The incident is dated 14.7.1997. Occurrence is between 9
to 10 PM. Before this incident at about 8.50 PM as per the version
of Sukhbir Singh PW-6 while he was returning home, near the Shiv
Mandir on the road of the Dharamshala, he noted that Mam
Chand, Rakesh and Dalel were standing. Mam Chand was hurling
abuses at him at the behest of Rakesh and Dalel; Mam Chand was
under the influence of liquor. His sister-in-law i.e. Sheela PW-3
and his nephew i.e. Vinod PW-2 joined him there; they i.e. PW-2
and PW-3 accompanied PW-6 back to his residence; after about 15
minutes PW-6 noticed PW-3 coming to his house; she was crying
and informed him that Rakesh, Dalel, Ved Prakash, Ramesh,
Khazan Singh and Mam Chand and wife of Dalel had entered their
house and attacked her husband; the said persons were armed
with dandas, rods and brick pieces; Shri Krishan had become
unconscious. PW-6 accompanied PW-3 to the spot where he found
that his nephew Vinod PW-2, Nitu PW-1 and Rishi Prakash had
removed the injured to the hospital; on reaching the hospital PW-6
learnt that Shri Krishan had been brought dead. In his cross-
examination PW-6 has admitted that when he reached the house
of his brother, he found Kavita his daughter present in the house;
none of the other family members was present; two or three
tenants were present; he reached the DDU hospital in his car;
there was no blood in the house when he reached his brother's
house; the gallery was empty. He denied the suggestion that he is
deposing falsely.
11. PW-1 Nitu, the elder son of the deceased was returning back
to his house on the fateful evening at about 9.15 PM when he
noticed that all the accused persons namely Dalel Singh, Khazan
Singh, Ramesh, Rakesh Kumar, Ved Prakash, Prem Wati and Mam
Chand beating the door of his house; some were having dandas
and others were having iron rods; Ved Prakash shouted 'Pakad Lo
Sale Ko Jaan Se Mar Do Jane Na Paye'; on hearing this exaltation
PW-1 rushed back towards the Shiv Mandir situated near the lane
of his house and hid himself behind the temple. He remained
there for three to four minutes. He saw his mother PW-3 coming
out from the house. She was weeping and was shouting 'Maar
Diya-Maar Diya'. PW-1 came out of the temple and went towards
his house and saw his father lying in the gallery of the house; his
younger brother PW-2 was massaging his feet. On enquiry from
PW-2 he was told that all the accused had come inside his house
and Rakesh had given a danda blow on the head of his father; his
mother went to call his uncle Sukhbir Singh. PW-1 along with his
cousin Rishi Kumar and another uncle Jai Bhagwan removed their
father to the Sunil Nursing Home; doctor in the nursing home
advised them to take the injured to a big hospital i.e. the DDU
hospital, in the casualty his father was reported declared dead.
Police reached the hospital. In his cross-examination, PW-1 has
stated that his father was aged about 48 years; the gallery in his
house is about 15 to 20 feet in length; the width being 3 to 3 ¼
feet; he did not notice any blood in the gallery; he noted abrasions
over the nose of his father. He has admitted that from the temple
where he had hidden himself, his house was visible. He denied
the suggestion that he is deposing falsely because of enmity with
the accused persons. He also denied the suggestion that his
father had suffered a heart attack or a stroke prior to this incident
or that his father was a chronic epilepsy patient.
12. Eye-witnesses to the incident have been examined as Vinod
PW-2 and Sheela PW-3, the son and wife of the deceased.
13. PW-2 has deposed that on 14.7.1997 when was returning to
his house at about 9 PM, near the corner of the lane he noticed
that accused Mam Chand was abusing his uncle Sukhbir; his
mother Sheela also reached there. He i.e. PW-2 and his mother
requested his uncle Sukhbir not to enter into any argument with
Mam Chand as Mam Chand had consumed liquor; he i.e. PW-2 and
PW-3 accompanied Sukhbir back to his house; PW-2 and his
mother returned back to the house; after sometime Dalel Singh
and his sons namely Rakesh, Khazan Singh, Ved Prakash, Ramesh
along with Mam Chand started shouting absuses outside their
house. PW-2 heard Ved Prakash shout that Nitu had come and
'Pakar Lo Sale Ko Jan Say Mar Do, Bach Kar Na Jaye'. PW-2 thought
that Dalel Singh might have caught hold of Nitu; door of the house
was opened; at that time Dalel Singh, Rakesh, Kazan Singh,
Ramesh, Ved Prakash, Mam Chand along with the wife of Dalel
Singh came inside their house. Ved Prakash and Rakesh were
holding dandas, Mam Chand and Ramesh were having iron rods.
Dalel was holding lathi and wife of Dalel was having pieces of brick
in her hand. Ramesh shouted 'Maar Do Salo Ko Takee Roz Ka
Jhagra Khatam Ho'; Khazan Singh caught hold of Shri Krishan by
putting his arms behind him; wife of Dalel threw pieces of brick on
Shri Krishan which hit him on his nose. PW-2 ran to save his
father; Dalel Sigh and Ved Prakash pushed him Krishan as a result
of which he fell down. Rakesh was having a danda in his hand.
He struck the danda on the head of his father; his father fell down;
accused persons ran away from the house; while running Ramesh
and Khazan Singh were shouting 'Sudhar Jao Sao Warna Sabhi Ka
Yahi Haal Karenge'; Nitu and his cousin brother Rishi Kumar came
to the house; PW-2 disclosed the said incident to them. Thereafter
the injured was removed in the emergency ward of the DDU
hospital where he was declared dead. His statement Ex.PW-2/A
was recorded in the hospital; PW-2 along with Nitu and Rishi
Kumar returned back to the house. At about 1.30 AM; the pieces
of brick were seized by the police from the spot. In his cross-
examination, PW-2 has admitted that he was a 10th Class student
at the time of the incident; his house is situated at a distance of
40-45 yards away from the place where his uncle Sukhbir was
being abused; the house of accused Mam Chand is situated at the
corner of the lane. PW-2 has admitted that there is a gallery in
their house which is about 20 feet in length and rooms are
situated on either side of the gallery. There is a courtyard at the
end of the gallery from where there is access to the first floor.
PW-2 has further stated that the door of the house was opened by
his father and he and his mother were just behind their father. He
has admitted that the accused had entered upto a distance of
about 2-3 feet in the gallery and they surrounded the three of
them i.e. his deceased father, his mother PW-3 and himself in the
gallery. He denied the suggestion that he is deposing falsely
because of enmity with the accused persons and this was a
chance to implicate them in a false case.
14. The second eye-witness is Sheela Devi examined as PW-3.
She was the widow of deceased Shri Krishan. She has
corroborated the version of PW-3. She has deposed that on
14.7.1997 at about 9-9.15 PM she was present inside the house
when she heard a noise coming from outside; the noise was
coming from near Shiv Mandir Dharamshala; she went to the said
spot and found Mam Chand filthily abusing Sukhbir her younger
brother-in-law, her son Vinod also joined them; they i.e. PW-2 and
PW-3 requested Sukhbir not to talk with Mam Chand; they i.e. PW-
2 and PW-3 accompanied Sukhbir back to his house and thereafter
they returned back to their own home; the house of accused Dalel
Singh is situated in front of their house; she went inside the room
and bolted the door; just after one or two minutes there was a
banging on the door; she i.e. PW-3 heard shouts of 'Salo Darwaja
Khol Do Har Roz Ka Ragra Mita Denge'; PW-3 heard Ved Prakash
shouting that Nitu had come and he should be caught. Shri
Krishan opened the door of their house to protect Nitu; when Shri
Krishan opened the door Dalel, his wife Pram Wati, his four sons
Ved Prakash, Rakesh, Ramesh and Khazan Singh along with Mam
Chand came inside their house; Rakesh was holding a danda;
Dalel was having lathi; Khazan was carrying danda; Ved Prakash
was also having a danda; Mam Chand and Ramesh were having
iron rods in their hands and Prem Wati was holding piece of brick.
Khazan caught hold of Shri Krishan; Prem Wati threw piece of brick
on his nose; Rakesh hit danda blow forcefully on the head of Shri
Krishan; Shri Krishan fell down; Vinod intervened to rescue his
father; Dalel and Ved Prakash pushed him; all the accused persons
ran way; while running they threatened that 'Salo Sudhar Jao
Warna Tum Sab Ka Yahi Hal Karenge'. PW-3 went to call her
brother-in-law Sukhbir and related the incident to him. In her
cross-examination, she had admitted that the width of gallery in
their house is about 20 feet; the height being about 10 feet. She
has categorically deposed that her husband was never ill in his
lifetime and he did not suffer from epilepsy; he was a healthy
man. She admitted that the incident had occurred inside the
gallery which was at a distance of about 2 feet from the entrance
door; no blood had fallen in the gallery. She denied the
suggestion that because of enmity the accused persons have been
falsely implicated. She denied the suggestion that she did not
witness the incident.
15. PW-2 and PW-3 are the eye-witnesses. Their versions are
consistent, cohesive and cogent. No discrepancies have been
noted which could assail their versions in any manner. They have
in graphic detail described the first incident i.e. the verbal
altercation which had taken place between Sukhbir and Mam
Chand whereupon PW-2 and PW-3 had intervened and requested
Sukhir not to enter into any argument with Mam Chand as Mam
Chand was in an intoxicated stage. The subsequent incident i.e.
the incident which is the subject matter of the present FIR had
occurred within the next 15 minutes when the accused persons
had reached the house of the deceased victim. On this count as
well PW-2 and PW-3 are fully corroborative of one and other. PW-2
had turned to save his father but his effort was frustrated when
Dalel Singh and Khazan Singh pushed him forcibly as a result of
which he fell down. PW-1, the elder son of the deceased has also
in a natural flow described the manner in which the incident had
occurred; he had been frightened when he had heard the accused
persons shouting his name as all of them were armed with dandas
and lathis and fearing the attack on himself he had hidden himself
behind the temple in the lane from where he could see his house;
within the next three to four minutes he saw his mother coming
out of the house crying and shouting that her husband had been
attacked; PW-1 reached the spot forthwith. His version is also
clear and categorical and being a contemporaneous transaction is
admissible under the doctrine of res gestae as contained in
Section 6 of the Indian evidence Act.
16. Version of PW-6 who was the first person with whom the
verbal duel had occurred with Mam Chand had testified about the
earlier enmity between the families i.e. between the complainant
and the accused. In his cross-examination, he had admitted that
in May, 1995 an altercation between the parties had occurred and
in that incident Shri Krishan had received injuries on his head
which wounds had to be stitched. His version of the earlier enmity
between the two parties has not been assailed in his cross-
examination.
17. Witnesses, as Bentham has said, are the eyes and ears of
justice. The presence of the eye-witnesses in the present incident
is natural and probable; they being members of the family and the
incident having occurred in the late evening hours of the day, it
was natural for the family members to have been present in the
house and have witnessed the incident. A distinction has to be
drawn between a 'related' witness and an 'interested' witness;
one is not equivalant to the other. The term 'Interested'
postulates that the person concerned had some direct interest in
the result of the litigation, whereas a witness who is a natural one
but yet a relative of the victim cannot be termed as 'interested'; a
close relationship of the witness to the deceased is no ground to
reject his testimony if otherwise it is reliable.
18. The site plan has been proved as PW-14/A; Mark A is the
place where victim was found lying unconscious which is the
gallery in the house. Incident had admittedly occurred in the said
gallery and this is borne out from the versions of PW-2 and PW-3.
PW-1 had described this gallery as about 15-20 feet in length and
width being about 3 to 3 ¼ feet. PW-3 has described the gallery
as 20 feet long and the height being about 10 feet.
19. The submission of the learned defence counsel that the four
feet long danda which was the weapon of offence could not have
been swung in the dimension of the gallery as described above
has little force. Ocular version of PW-2 and PW-3 recites that the
accused persons had after entering the house, entered the gallery
and although all of them were armed, it was Rakesh who had
wielded the four feet long danda and struck it on the head of Shri
Krishan pursuant to which he had fallen down. Even presuming
that the width of the gallery was not more than 3 ¼ feet, it would
not prevent the attack by a four feet long danda in a 20 feet long
gallery, having a height of 10 feet; attack by a danda of such a
dimension was well probable.
20. MLC of the victim Ex.PW-12/A has been proved in the
version of Dr.Vijay examined as PW-12. He had examined the
patient at 9.45 PM and had declared him brought dead. Post-
mortem was conducted on the following day by PW-7 vide his
report Ex.PW-7/A. Cause of death was death due to comma
caused by a head injury; scotted blood was noted present on the
parieto occipital region at the sub scapular area and a linear
fracture of the occipital bone, 3.2 cm. in size had also been noted.
This injury was sufficient to cause death in the ordinary course of
nature. On 13.10.1997 vide Ex.PW-7/C a subsequent opinion had
been given by PW-7 opining that the bamboo stick which has been
brought to him could have been the weapon of offence and the
cause of injury pursuant to which the victim had died.
21. Arguments of the defence counsel that the medical evidence
is contrary to the ocular testimony of Pw-2 and PW-3 is without
force. PW-2 has deposed that Khazan Singh had caught his father
by putting his arms from behind his father and Rakesh holding a
danda had struck him with force on his head. This witness has
nowhere stated that Rakesh was behind his father at the time
when he struck him which would have caused the injuries on the
nape of his neck. PW-3 has also deposed that her husband had
been caught hold by Khazan Singh whereupon Rakesh had hit a
danda blow forcibly on his head. Neither of the two eye-witnesses
have deposed that the victim had been attacked from behind his
back. There is no contradiction in this ocular and medical
evidence.
22. The weapon of offence had been got recovered by accused
Rakesh on 24.9.1997 in the presence of Jai Bhagwan PW-4, the
elder brother of the victim. Investigating Officer PW-14 had
arrested accused Rakesh on the same day i.e. on 24.9.1997 vide
memo Ex.PW-14/D; his disclosure statement is Ex.PW-11/M;
recovery memo of the danda Ex.PW-4/A has been signed by PW-4
at point A. Recovery was no doubt effected two months after the
day of the incident; PW-4 has deposed that this recovery had been
effected from the shop in a plot where after removing some earth,
Rakesh had got the bamboo stick recovered. In his cross-
examination PW-4 had admitted that this place was an open place
accessible to all but this has reference to the open plot where the
shop was located. Version of prosecution established through the
testimony of PW-4 is to the effect that it was after removing the
earth from a shop in the plot that the recovery had been effected;
obliviously, implying that the bamboo stick was lying in a hidden
condition and not accessible to the public view at large.
23. This evidence has been collected by the prosecution in
Crl.A.567/2000 titled as Rakesh Kumar vs. State and
Crl.A.No.671/2000 titled as Dalel Singh vs. State.
24. In Crl.A. No.360/2004 titled as Prem Wati vs. State the same
witnesses have been examined under different heads; Vinod has
been examined as PW-1; Sukhbir has been examined as PW-4;
Nitu has been examined as PW-2, Jai Bhagwan has been examined
as PW-3; Dr.Vijay has been examined as PW-7; Dr.Komal Singh
has been examined as PW-6 and investigating officer SI Rakesh
Giri has been examined as PW-9.
25. From the aforenoted evidence both oral and documentary, it
is clear that a specific role has been attributed to each of the
present appellants. Accused Rakesh Kumar was armed with
danda; he was the person who had wielded this weapon of offence
leading to the fatal injury which had caused death of the victim.
His mother Prem Wati was holding a brick in her hand and had
attacked the victim on his nose. Dalel Singh, the father of Rakesh
Kumar was holding a lathi in his hand. He had entered the house
of the victim along with the other co-accused jointly with the
common object of attacking the victim.
26. Section 149 of the IPC creates a specific and distinct
offence. The vicarious liability of the members of an unlawful
assembly extends to those acts which are done in prosecution of
the common object of the unlawful assembly and such offences as
the members of the unlawful assembly knew to be likely to be
committed in prosecution of that object. Each case has to be
adjudged according to the facts as unfolded.
27. In the instant case, it is clear that the principle embodied in
this Section is attracted; the members of this unlawful assembly
knew that by their co-joint participation in the offence actually
committed it was likely to be committed in the prosecution of their
common object i.e. of the attack on the victim; this can well be
gathered from the holding of different weapons of offence by each
member of the unlawful assembly; exaltation by Ved Prakash on
seeing Nitu followed by the banging of the entrance door of the
victim and thereupon attacking him; each of the co-accused
person knew about the likelihood of the commission of this
offence; actual physical attack by each member of the unlawful
assembly being not a pre-requisite for the application of this
section; which is based on the principle of a vicarious liability.
28. It is clear that the prosecution has established its case
beyond reasonable doubt against each of the appellant; besides
the eye-witness accounts of PW-2 and PW-3; version of PW-1 who
had reached the spot within seconds of the incident; testimony of
PW-6 also being contemporaneous coupled with the medical
opinion, the recovery of the weapon of offence, as also the earlier
enmity between the complainant and the accused family having
been proved, it is evident that the accused persons are guilty of
the offence for which they have convicted.
29. Conviction of the accused persons calls for no interference.
The sentence awarded to accused Rakesh is a maxim substantive
sentence of RI for five years; accused Dalel Singh had been
sentenced to the substantive sentence already undergone by him;
accused Prem Wati had been sentenced for a substantive
maximum sentence for three years.
30. The judgment relied upon by the learned defence counsel
reported in Rameshwar Dayal vs. State of U.P. 1971 (3) SCC 924
would not be applicable to the facts of the instant case. The said
case was a statutory offence committed by two constables under
the U.P.Pradeshik Armed Constabulary Act, 1948 for having
deserted their post; the offences, defences and the facts being
absolutely the same, different sentence by two different courts
could not operate. In the instant case, the sentence awarded to
each of the accused persons has been passed with regard to the
specific role which was attributed to each of the accused; Rakesh
having wielded the actual weapon of offence had been granted
the maximum sentence; the attack by Prem Wati with a brick had
caused abrasions on the nose of the victim; Dalel Singh was
leading the unlawful assembly with no role of a physical attack; it
was these acts of each of the accused which had weighed in the
mind of the Trial Judges while awarding different sentences to
each of the accused. The said sentences are proportionate and in
conformity to the offences committed and call for no interference.
31. None has appeared in Crl.Rev.P.581/2000 i.e. the revision
petition filed by the complainant Vinod Solanki seeking
enhancement of the sentence. Orders of sentence, even
otherwise being fair call for interference. All the three appeals
and the revision petition are accordingly dismissed. Accused Dalel
has already undergone the substantive sentence; bail bonds and
surety bonds of Prem Wati and Rakesh are cancelled; they are
directed to surrender to suffer the remaining sentence.
(INDERMEET KAUR)
JUDGE
21st October, 2009/rb
