Rakesh Alias Pahelwan vs State (Nct Of Delhi)
2009 Latest Caselaw 3472 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment Reserved on: 28.07.2009
                              Judgment delivered on: 01.09.2009

                          Crl. Appeal No. 189/2009

MOHAN LAL @ TONY & ORS.                            ..... Appellant

                                       Vs

STATE (NCT OF DELHI)                               ..... Respondent

Crl. Appeal No. 196/2009

DAYA SHANKER @ RAJU @ CHHOTE ..... Appellant

Vs

STATE (NCT OF DELHI) ..... Respondent

Crl. Appeal No. 204/2009

RAKESH @ PAHELWAN ..... Appellant

Vs

STATE (NCT OF DELHI) ..... Respondent

Advocates who appeared in this case:

For the Appellants : Mr B.S. Chowdhary, Ms Chitra Goswami & Mr Pradeep Sharma, Advocates For the Respondent : Mr Amit Sharma, Addl. Public Prosecutor

CORAM :-

HON'BLE MR JUSTICE RAJIV SHAKDHER

1. Whether the Reporters of local papers may be allowed to see the judgment ?

2.     To be referred to Reporters or not ?              Yes
3.     Whether the judgment should be reported           Yes
       in the Digest ?

RAJIV SHAKDHER, J

1. These are the appeals filed under Section 374 of the Code of

Criminal Procedure, 1973 (hereinafter referred to in short as

„Cr.P.C.‟) against the common judgment and sentence dated

20.02.2009 passed by the Additional Session Judge (FTC)/West/Delhi

(in short the „ADJ‟).

2. The case of the prosecution is: On the night of 10th & 11th

August 2000, an information was received at Police Station Rajouri

Garden, Delhi by ASI Jora Singh (PW9) at about 2.10 a.m. from duty

constable Kamal at Deen Dayal Upadhaya (in short the „DDU‟)

Hospital that one Jaswinder Kaur @ Gogi, wife of Mohan Lal, had

been admitted to the hospital in an injured condition. This

information was dutifully entered as DD Entry 23A (Ex. PW9/A). ASI

Jora Singh (PW9) communicated this information to SI Naresh Kumar

(PW19) for further inquiry.

2.1 S.I. Naresh Kumar (PW19) along with ASI Prem Singh (PW3)

visited the DDU hospital. Further inquiry revealed that the injured

was Jaswinder Kaur (PW8). Jaswinder Kaur (PW8) was accompanied

by her friend Babbal to the DDU hospital. Babbal has since died due

to burn injuries. A criminal case with respect to that was also

registered. S.I. Naresh Kumar (PW19) recorded the statement of

Babbal (Ex. PW19/A). Since Babbal, as indicated above, died during

the course of trial, she could not be examined.

2.2 At about 3.35 a.m., constable Mukesh Kumar (PW4) brought a

rukka to police station Rajouri Garden which was sent by S.I. Naresh

Kumar (PW19), based on which FIR No. 818/2000 (Ex. PW9/B) was

registered under Section 307/34 of the Indian Penal Code, 1860 (in

short the „IPC‟).

2.3 Between 25.08.2000 and 04.09.2000, all the three appellants/

accused were arrested in the said case. They were offered an

opportunity of a test identification proceeding (in short „TIP‟), which

the appellants/accused declined. This fact was recorded by the

learned Magistrate vide order dated 09.09.2000. After completion of

investigation a chargesheet was filed and all three appellants/

accused were sent up for trial. By an order dated 05.10.2001 all

three appellants/accused were charged under Section 307/34 of the

IPC.

2.4 All three appellants/accused pleaded „not guilty‟ and claimed

trial. The prosecution in order to prove its case, cited 19 witnesses.

The appellants/accused in their defence did not cite any witness.

However, the statement of the appellants/accused was recorded

under Section 313 of the Cr.P.C.

2.5 The case of the prosecution is largely pivoted around the

testimony of its star witness, i.e., Jaswinder Kaur @ Gogi (PW8). The

testimony of Jaswinder Kaur (PW8) revealed that she was a widow,

whose husband had died in 1997. About 4 to 5 years prior to the date

of the incident, she got acquainted with appellant/accused Mohan Lal

@ tony. The wife of the appellant/accused Mohan Lal, one Lakshmi

according to Jaswinder Kaur (PW8), had been murdered. Jaswinder

Kaur (PW8) maintained a live-in relationship with appellant/accused

Mohan Lal. The appellant/accused Mohan Lal had children from his

earlier marriage with Lakshmi.

2.6 On 10.08.2000, appellant/accused Mohan Lal visited 58/59,

T.C. Camp, Raghubir Nagar, Delhi (in short „T.C. Camp‟), where his

children from his marriage with Lakshmi, were residing. Jaswinder

Kaur (PW8) also reached T.C. Camp, in the evening hours. On

reaching T.C. Camp, she found apart from appellant/accused Mohan

Lal, the other appellants/accused, i.e., Daya Shanker @ Raju &

Rakesh @ Pahelwan, also present. At T.C. Camp, Jaswinder Kaur

(PW8) entered into a conversation with the other appellants/accused

which veered around the murder of Lakshmi. Jaswinder Kaur (PW8)

along with the three appellants/accused left T.C. Camp at about 10

p.m. in a maruti car. While moving around in the car, Jaswinder Kaur

(PW8) along with all the appellants/accused drank whisky, and also

had their meals. In the course of the journey, once again, a quarrel

broke out between the Jaswinder Kaur (PW8) and the appellants/

accused over the murder of Lakshmi. At this juncture, Jaswinder

Kaur (PW8) who was sitting in the front passenger seat of the car

along with the appellant/accused Mohan Lal, who was driving the

car, with the other appellants/accused Daya Shanker @ Raju and

Rakesh @ Pahelwan in the back seat, was physically assaulted. After

some time, all four reached the house of Babbal, that is, the friend of

Jaswinder Kaur (PW8). On reaching there, they got to know that she

had gone to her aunt‟s house for the night. Thereupon, all four

proceeded to the house of Babbal‟s aunt. It is at this point in time

that matters became worse. When Jaswinder Kaur (PW8) entered the

house of Babbal, where she was met by Babbal, she was both

terrified and perplexed. The reason being that, the quarrel over the

death of Lakshmi had continued between the four, through the

journey, and all this while, the appellants/accused made accusation

against Jaswinder Kaur (PW8) that she was involved in the murder of

Lakshmi. The quarrel continued in Babbal‟s aunt‟s house. In this

fracas, Rakesh @ Pahelwan hit Jaswinder Kaur (PW8) with the

revolver; a bullet got fired, which hit the left side of Jaswinder Kaur‟s

(PW8) leg. Immediately thereafter, the accused/Daya Shanker,

Babbal and her husband, Ranjeet poured liquor on Jaswinder Kaur‟s

(PW8) wound. Jaswinder Kaur (PW8) was thereafter, bundled into

the maruti car, in which all four had travelled to the Babbal‟s aunt‟s

house and took her to DDU hospital. On reaching the DDU hospital,

the appellants/ accused left Jaswinder Kaur (PW8) to fend for herself.

Jaswinder Kaur (PW8) was admitted for treatment by the staff of

DDU hospital. It is here that Jaswinder Kaur (PW8) was operated.

3 At the trial, the prosecution examined Dr. P.S. Sarangi (PW1),

Surgical Specialist at the DDU hospital. Dr. Sarangi proved the MLC

(Ex. PW1/A). Dr. Sarangi deposed that since the doctors who had

examined Jaswinder Kaur (PW8), i.e., Dr. Manoj, Dr. Vivek Sharma &

Dr. S.K. Bhagat were no longer in the service of the hospital and

their present whereabouts were not known, he had offered to prove

the MLC as he was in a position to identify their hand writing and

signatures having seen them writing and signing papers in the past in

the course of his official duty. The MLC (Ex. PW1/A), amongst

others, referred to the following injury being inflicted on Jaswinder

Kaur (PW8):

               "(1)    CLW (app 1x1m) over medial side left leg
                       CLW (app 4x3m) over lateral side left leg
                       CLW (app 1x1m) over medial side right leg
               (2)     Palpable hard substance (bullet?) over lateral
                       side right leg."
3.1    Dr. Dewan Seth (PW2), who was at the relevant point of time,

the radiologist at the DDU hospital, had examined the x-ray no. 5514-

15 dated 25.09.2000. He further deposed that there was evidence of

fracture of upper and left fibula.

3.2 ASI Prem Singh (PW3) deposed primarily with regard to the

fact that he had accompanied S.I. Naresh Kumar (PW19), Constable

Mukesh Kumar (PW4) to the DDU hospital, and thereafter, to the

place of the incident.

3.3 Constable Mukesh Kumar (PW4) had in his deposition mainly

stated that he alongwith SI Naresh Kumar (PW19) and ASI Prem

Singh (PW3) went to the DDU hospital, and thereafter carried the

rukka to the police station on the basis of which the FIR was

registered. After registration of FIR, a copy of the rukka was carried

by Constable Mukesh Kumar (PW4) to the place where the incident

took place, i.e., 304 T.C. Camp, Raghubir Nagar, Delhi. He further

deposed that at the site he was met by SI Naresh Kumar (PW19) and

ASI Prem Singh (PW3). At the site, SI Naresh Kumar (PW19)

prepared the site plan in the presence of Babbal, who had

accompanied him. He also deposed that the IO had lifted the

blood samples and stained earth from the spot where the

incident took place and sealed the same with his seal NK. He

further deposed that a seizure memo was prepared which bore his

signature at point „A‟. In his deposition, he also stated that from

the site they went back to DDU hospital where they recorded

the statement of Jaswinder Kaur (PW8). At that point

Jaswinder Kaur (PW8) produced the blood stained chunni

which she had tied to her injured leg. The blood stained salwar

and chunni were seized and sealed by the IO with the seal NK and

accordingly, a seizure memo PW4/B and PW4/C were prepared for

the Chunni and Salwar respectively. He proved his signatures on the

said seizure memo. It is important to note that in his cross-

examination, PW4 has stated that when they went back to the DDU

hospital, they were unable to record the statement of Jaswinder Kaur

(PW8) as she was unconscious.

3.4 Bitto (PW5), who was the nephew of the appellant/accused

Mohan Lal, deposed that the appellant/accused Mohan Lal had

purchased the maruti car bearing no. DL4CE 5853 which was used

to ferry the appellants/accused and Jaswinder Kaur (PW8) to the

house of Babbal‟s aunt and thereafter, to the DDU hospital, was, on

paper, owned by him, whereas the real owner was appellant/accused

Mohan Lal.

3.5 Constable Kamal Singh (PW6), who was posted as duty

constable at DDU hospital, reported that on the night intervening 10th

and 11th August, 2000, he was handed over by the CMO of the

hospital, a sealed pulanda (packet) with the seal of the CMO which

contained a bullet. He handed over the same to the IO, S.I. Naresh

Kumar, who seized it and prepared a seizure memo (Ex. PW6/A)

which bore his signature at point „A‟.

3.6 Constable Kailash (PW7) deposed with regard to the arrest of

one of the accused Rakesh @ Pahelwan.

3.7 ASI Jora Singh (PW9), as indicated above, was the police officer

who in the instant case received information, in the first instance,

about the incident from DDU hospital.

3.8 Constable Anil Kumar (PW10) deposed with regard to the

arrest of the other appellant/accused Daya Shankar @ Raju. He also

deposed that appellant/accused Daya Shanker @ Raju had taken the

police party to the place where the incident occurred and also

disclosed that the appellant/accused Rakesh @ Pahelwan was the one

who had fired the bullet at Jaswinder Kaur (PW8).

3.9 Constable Bijender singh (PW11) deposed that on 23.10.2000

he had been assigned the duty of carrying five sealed samples to FSL,

Malviya Nagar vide RC No. 245/01 and that he had deposited the

sample with the FSL with the seal intact.

3.10 HC Rohtash, PW(12) deposed with regard to the fact that SI

Naresh Kumar (PW19) had deposited with him, at the malkhana on

11.08.2000, a sealed packet containing the blood stained chunni and

salwar. He further deposed that on 25.08.2000, a motor car bearing

no. DL 4CE 5853 was also brought in for custody. Similarly, he

deposed that on 07.10.2000, SI Dinesh Kumar had deposited one

blood sample of Jaswinder Kaur (PW8), which was, duly sealed with

the seal of CMO of the DDU hospital. He proved the signatures in

the register being Ex. PW12/A. He further deposed that on

23.10.2000 five sealed parcels were handed over by him to constable

Bijender Singh (PW11) vide RC No. 245/21 for being deposited in

FSL, Malviya Nagar, as indicated above.

3.11 S.I Narender Kumar (PW13) deposed, with respect to the arrest

of appellant/accused Mohan Lal, in FIR No. 234/2000 at Police

Station Welcome. He also deposed that appellant/accused Mohal Lal

had made a disclosure statement which is marked as Ex A, on which

he proved a signature at point „A‟.

3.12 Inspector Ramesh Yadav (PW14) deposed with respect to the

fact that he had submitted a photocopy of the FIR No. 935/2000 and

photocopy of the postmortem report pertaining to the deceased

Babbal, the friend of Jaswinder Kaur (PW8).

3.13 S.I. Gulshan Nagpal (PW15) deposed with respect to the fact

that on 27.08.2000 when he was posted in Police Station Welcome,

accused Mohan Lal was arrested in FIR No. 234/2000, in which case

he made a disclosure statement which is marked as EX. A and bore

his signature at point „B‟.

3.14 S.I. Narender Kumar (PW13), SI Gulshan Nagpal (PW15) and SI

K.P. Shah (PW16) deposed the manner in which the accused Mohan

Lal was arrested in the case. It is important to note that SI K.P. Shah

(PW16), who is posted as special staff in North-West Distt, had

received information about collection of certain bad characters in H.

No. 98, Welcome. When they reached there, they were confronted by

certain boys and ladies. They were shot at; and it is here that

appellant/accused Mohal Lal was arrested.

3.15 ASI Sushila PW 17 deposed that on 28.08.2000 she received

information from SI K.P. Shah (PW16) at about 11.00 a.m. about the

arrest of appellant/accused Mohan Lal, in FIR no. 234/2000. This

information was reduced by her to writing in DD No. 10A (Ex.

PW16/A).

3.16 Sh. Sanjeev Aggarwal, Learned ARC, Tis Hazari, Delhi (PW18)

deposed with regard to the correctness of the TIP proceedings dated

09.09.2000 with respect to the appellants/accused Rakesh @

Pahelwan and Daya Shanker @ Raju.

3.17 S.I. Naresh Kumar (PW19), who is the investigation officer

(I.O.) of the case, deposed with regard to the fact that how he had

received information as regard the injured Jaswinder Kaur (PW8)

being treated at DDU hospital; his interrogation with Jaswinder

Kaur‟s (PW8) friend Babbal and the fact that he recorded her

statement with regard to the events, as they transpired, which led to

the injury of Jaswinder Kaur (PW8). He also deposed with regard to

the fact that he had made out a rukka which was sent with Constable

Mukesh Kumar (PW4) for registration of the FIR. He specifically

testified that he had prepared the site plan (Ex. 19/C) of the spot

where the incident had taken place. In his deposition, he

specifically stated that at the spot of the incident, he had

found blood and that he had lifted the blood with the help of

cotton which was sealed in a packet and accordingly a seizure

memo (Ex. PW4/A) was prepared. He further stated that he went

back to the DDU hospital on 11.08.2000 where he met Jaswinder

Kaur (PW8), who handed over a blood stained chunni and salwar

which was also seized and a seizure memo (Ex. PW4/B and Ex. PW4/C

respectively) was prepared by him. He also deposed that it was

constable Kamal Singh (PW6) who handed over to him a sealed

packed containing a bullet; which he seized and prepared a seizure

memo (PW6/A). He also testified that the appellant/accused Rakesh

@ Pahelwan was arrested on 28.08.2000; as also with respect to the

information that was received with regard to the arrest of the

appellant/accused Mohan Lal on 28.08.2000, in FIR no. 234/2000 at

Police Station Welcome, North-West Distt. As regards the

appellant/accused Daya Shanker @ Raju he deposed that he was

arrested on 31.08.2000. He categorically deposed that in the present

case the appellant/accused Mohan Lal was arrested on 01.09.2000.

He also deposed with regard to the fact that Babbal, friend of

Jaswinder Kaur (PW8), had died in 2000, and a FIR No. 935/2000

under Section 302 was registered at Police Station Rajouri Garden.

In his cross examination SI Naresh Kumar (PW19) admitted

that he had neither found the empty shell nor the weapon of

offence from which the bullet was alleged to have been fired.

He also admitted that at the time of the incident Jaswinder

Kaur (PW8) was in a drunken condition. He further volunteered

that Jaswinder Kaur (PW8) was forced to consume liquor.

4. At this stage, it is important to take note of a very disturbing

fact, which is that, the statement of all the three appellants/accused

recorded under Section 313 of the Cr.P.C. are identical. As a matter

of fact, a perusal of the statement of the appellants/accused would

show that there has been a complete non-application of mind in

recording the statement of the appellants/accused under Section 313

of the Cr.P.C. This is evident from one singular example. Each

accused was asked the following question, which is serialized as Q.4.

Both the question and the answer are identical. A bare perusal of the

question and the answer, which is extracted below, would show that

there is mechanical approach adopted by the court below to what is a

very crucial part of the trial of a case:

Statement of accused Mohan Lal @ Tony under Section 313 Cr.P.C. without oath

Q.4 It is in evidence against you accused Mohan Lal that your children were residing at H. NO. 58-59, T.C. Camp, Raghubir Nagar and on 10.08.2000, during evening time, you had gone to see your children at the said house. What have you to say?

Ans. It is correct.

Statement of accused Rakesh @ Pahelwan under Section 313 Cr.P.C. without oath

Q.4 It is in evidence against you accused Mohan Lal that your children were residing at H. NO. 58-59, T.C. Camp, Raghubir Nagar and on 10.08.2000, during evening time, you had gone to see your children at the said house. What have you to say?

Ans. It is correct.

Statement of accused Daya Shanker @ Raju under Section 313 Cr.P.C. without oath Q.4 It is in evidence against you accused Mohan Lal that your children were residing at H. NO. 58-59, T.C. Camp, Raghubir Nagar and on 10.08.2000, during evening time, you had gone to see your children at the said house. What have you to say?

Ans. It is correct.

5. Based on the aforesaid, it was submitted by the learned counsel

for the appellants that there is no evidence against the

appellants/accused and hence offences under Section 307/34 of the

IPC were not made out. He submitted that there was no evidence of

common intention to cause the death of Jaswinder Kaur (PW8). In

this regard, he relied upon the testimony of Jaswinder Kaur (PW8) to

show that in her cross-examination it has clearly been revealed that

the bullet got fired because of an altercation and that when

Jaswinder Kaur (PW8) was injured an attempt was made to help her

by pouring liquor on the wound and then taking her to the hospital.

He submitted that a close perusal of the statement of Jaswinder Kaur

(PW8) would show that appellants/accused Mohan Lal and Daya

Shankar @ Raju had not participated in the offence, in as much as,

the testimony of Jaswinder Kaur (PW8) would show that both the

appellants/accused Mohan Lal and Daya Shanker @ Raju had entered

the room after Rakesh @ Pehalwan had allegedly fired the bullet. He

submitted that Jaswinder Kaur (PW8) has further testified that

accused Mohan Lal and her children had tried to save her. The

learned counsel for the appellants submitted that the court below

had failed to appreciate that for convicting a person in respect of an

offence under Section 307/34 of the IPC it was essential for the court

to come to a conclusion that there was, firstly, an intention or

knowledge or the necessary mens rea to commit murder and this

intention was followed by an act to fulfill the intention. He submitted

that the events of 10.08.2000, which have come to light by virtue of

the testimony of Jaswinder Kaur (PW8), would show that she

accompanied the appellants/accused willingly from the deceased

Lakshmi‟s house at T.C. Camp, where the appellant/accused Mohan

Lal and the other two appellants/accused Rakesh @ Pahelwan &

Daya Shanker @ Raju had assembled, till the house of Babbal, a

friend of Jaswinder Kaur (PW8), and thereafter to the house of

Babbal‟s aunt. He submitted that there was no evidence to show that

at any point in time, the appellants/accused had shared a common

intention or that there was a prior meeting of mind to commit the

murder of Jaswinder Kaur (PW8). The learned counsel in support of

his submission relied upon the judgment of the Supreme Court in

Rangaswami vs State of Tamilnadu AIR 1989 SC 1137. The

learned counsel also submitted that presently the appellant/ accused

Rakesh @ Pehalwan, who is alleged to have fired the bullet, has

already undergone sentence of nearly six and a half years, out of the

seven years awarded to him by the trial court. He submitted that the

prosecution had miserably failed to prove its case. The testimony of

Jaswinder Kaur (PW8) was unreliable. The forensic evidence did not

support the case of the prosecution.

6. As against this Mr Amit Sharma, learned APP submitted that a

shared common intention could easily be adduced from the testimony

of the prosecution witness, in particular, that of Jaswinder Kaur

(PW8). He contended that the testimony of the said witness would

show that an altercation ensued between Jaswinder Kaur (PW8) and

the appellants/accused over the involvement of Jaswinder Kaur (PW8)

in the murder of Lakshmi, wife of appellant/accused Mohan Lal. The

quarrel which erupted at the house of the deceased Lakshmi

continued while Jaswinder Kaur (PW8) travelled with the

appellants/accused in the car to the house of Babbal, and thereafter

to the house of Babbal‟s aunt where Babbal was staying for the night.

He submitted that Jaswinder Kaur (PW8) in her testimony has clearly

deposed that while she was sitting in the front passenger seat of the

car, which was driven by the appellant/accused Mohan Lal, the other

two appellants/accused Daya Shanker @ Raju and Rakesh @

Pehalwan, assaulted her physically. This peculiar behavior of Mohan

Lal @ Tony continued even when they reached Babbal‟s aunt‟s house

where Jaswinder Kaur (PW8) got injured by virtue of bullet fired from

the revolver of the appellant/accused Rakesh @ Pahelwan. It was the

learned APP‟s submission that appellant/accused Mohan Lal allowed

such assault to take place not only when they were travelling in the

car which he was driving but also at Babbal‟s aunt‟s house. Mr Amit

Sharma, APP submitted that for the purposes of holding that the

appellants/accused shared a common intention, active participation

of all appellant/accused was not necessary. In other words he

submitted the fact that when the bullet was fired by the

appellant/accused Rakesh @ Pahelwan, the other two appellants/

accused Mohan Lal and Daya Shanker @ Raju were not in the room

would in no way effect the case of the prosecution if the

circumstantial evidence, as it does in this case, point to a shared

common intention to murder Jaswinder Kaur (PW8).

7. I have heard the learned counsel for the appellant as well as Mr

Amit Sharma, APP. In my view, in order to hold the appellants guilty

of the offence under Section 307/34 of the IPC it would be important

to unearth the intention of the appellants/accused. Undoubtedly, the

intention of the appellants/accused should be a shared common

intention prior to the commission of the crime. In other words the

evidence should unequivocally establish prior concert to murder the

victim, and in ascertaining this intention the attendant facts and

circumstances are crucial. Therefore, the seriousness of the

resultant injury, or even case where there is no injury is not always

determinative of the fact whether or not an offence under Section

307 and 34 of the IPC has been committed. Section 307 of the IPC is

basically an offence, which brings within its fold, an attempt to

commit murder. Therefore, whether there is presence of relevant

mens rea to commit murder, which is followed by an act; would have

to be necessarily proved by the prosecution either by direct or

circumstantial evidence. Section 307 of the IPC, as is evident from a

bare reading, is in three parts. Where there is an attempt, but it does

not result an injury, the punishment, which may be imposed, can

extend upto 10 years. However, where the attempt results in the

victim being „hurt‟ or „injured‟ then the offender is liable to be

punished either with a sentence of imprisonment for life or to such

sentence as described in the first part. The third part relates to an

offender who is already under the sentence of imprisonment for life

and who commits an offence, as described under Section 307, which

results in a hurt. In such a situation the offender can be punished

with death. With the aforesaid legal parameters what requires to be

seen is whether the prosecution has been able to prove its case

beyond a reasonable doubt.

8. Jaswinder Kaur (PW8) is thus the pivotal witness on which the

edifice of the prosecution‟s case is built. Therefore, a close scrutiny

of Jaswinder Kaur (PW8) testimony is vital. A careful perusal of the

testimony of Jaswider Kaur (PW8) would show that on the fateful day

10.08.2000, she met the appellant/accused Mohan Lal @ Tony at the

house of his former deceased wife Lakshmi situate at T.C. Camp;

where evidently he had gone to meet his children. At T.C. Camp, the

appellants/accused Daya Shanker @ Raju as well as Rakesh @

Pahelwan were also present, according to Jaswinder Kaur (PW8).

Jaswinder Kaur (PW8) has testified that it is at T.C. Camp that an

altercation erupted between her and the other appellants/accused

over the death of Lakshmi. In her deposition, she admits that

accusations were hurled at her, by the other appellants/accused, in

regard to her involvement in the murder of Lakshmi. It seems

strange that despite this quarrel Jaswinder Kaur (PW8) travelled with

the appellants/accused to the house of her friend Babbal. On her

own admission, in her journey in the car from the house of the

deceased Lakshmi to the house of Babbal, she was physically

assaulted. At the same time she also testified that prior to the

assault she shared food with appellants/accused in the car, in which,

they travelled to Babbal‟s house. On her own admission, the

appellants/accused also consumed liquor in the car. Though she

denies having consumed liquor, her MLC (Ex. PW1/A) demonstrates

otherwise. It is also accepted by her that she was aware of the fact

that the appellant/accused Rakesh @ Pahelwan was in possession of

a revolver, while the other appellant/ accused Daya Shanker @ Raju

was in possession of a knife. What makes it even more strange is

that, after they reached Babbal‟s house she made no attempt to get

away from the appellants/accused. As a matter of fact, Jaswinder

Kaur (PW8) has deposed that from there she travelled with the

appellants/accused to the house of Babbal‟s aunt as Babbal was not

available in her house, and was reportedly spending the night at her

aunt‟s house. The incident is alleged to have taken place in the

house of Babbal‟s aunt. A close scrutiny of her testimony would show

that while she says that one of the appellant/accused Rakesh @

Pahelwan hit her with the revolver, there is no clarity as to whether

he had actually pointed the revolver at her to kill, when the shot was

fired. She also testified that Daya Shanker @ Raju, Babbal and her

husband poured liquor on her wound, and thereafter she was bundled

into the car, by the appellants/accused, and taken to DDU hospital. A

close scrutiny of her testimony also shows that, there is an attempt to

shield appellant/accused Mohan Lal which is evident from her

deposition where she has categorically stated that accused Mohan

Lal did not give her „substantial beatings‟ and that, he and his

children tried to save her. This behavior of appellant/accused Mohan

Lal is incongruous with his inaction in not protecting Jaswinder Kaur

(PW8) from physical assault by appellant/accused Daya Shanker @

Raju & Rakesh @ Pahelwan while she was travelling with the

appellants/accused in the car. This aspect becomes even more

apparent from the fact that in her cross-examination Jaswinder Kaur

(PW8) has stated that accused Mohan Lal and Daya Shanker @ Raju

entered the room after accused Rakesh @ Pehalwan had fired the

shot. Based on her testimony, I am unable to persuade myself to

come to a conclusion that prior to the incident, there was a meeting

of mind and a shared common intention to eliminate Jaswinder Kaur

(PW8). If this was so, that is, if there was a common intention, the

appellants/ accused could have committed the offence at any time

during Jaswinder Kaur‟s (PW8) journey in the car with them from

deceased Lakshmi‟s house to the house of Babbal‟s aunt where the

incident is alleged to have taken placed. There is no evidence

whatsoever placed on record by the prosecution to enable me to

come to a conclusion that there was such meeting of mind prior to

commission of the alleged offence.

8.1 As a matter of fact, the testimony of Jaswinder Kaur (PW8) does

not inspire confidence. She seems an untrustworthy witness in so far

as her testimony vis-a-vis the person who was responsible for

inflicting the injury. The reason for this is while there is no denying

the fact that Jaswinder Kaur (PW8) was injured, she, in the first

instance, on being admitted to DDU hospital did not disclose the

identity of the assailants.

8.2 It is no doubt true that a great weight is to be given to the

testimony of an injured witness. The reason being that such a

witness would not ordinarily screen the real offender and involve in

his place an innocent person. But this principle, that a person can be

convicted on the basis of the sole testimony of an injured witness,

would apply to a witness whose testimony is trustworthy and wholly

reliable. If it is shown that there is material infirmity and falsehood

impregnated in the evidence of such a witness, it would not be safe to

convict an accused solely on the evidence of an injured witness

without independent corroboration by material evidence. See

observations in Hari Har vs State of UP 1971 Cri. L.J. 1578 (All.)

paragraph 5 at page 1580; Vijai Shanker Misra vs State 1984

All. L.J. 1316 paragraph 22 at page 1323; L.L. Kale vs State of

Maharashtra & Ors. (2000) 1 SCC 295 paragraph 8 & 9 at page

298-300; and Desraj vs State 1969 ALJ 784. In the present case,

it is clear that the testimony of the injured Jaswinder Kaur (PW8) is

not reliable.

8.3 Juxtapose the above with the following: The prosecution has not

been able to produce either the weapon of offence or the empty shell.

The bullet which was evidently extracted from the injured leg of

Jaswinder Kaur (PW8), as per the FSL report, did not have any blood

stain on it. As a matter of fact, the prosecution has not been able to

establish as to whether the scene of the incident was the house of

Babbal‟s aunt. The reason for the same is: SI Naresh Kumar (PW19)

deposed that he collected blood stains from the spot on a cotton

swab. The FSL report has clearly opined that no blood could be

detected on the cotton swab. What makes matter worse for the

prosecution is that the blood sample of Jaswinder Kaur (PW8), which

was Ex. 5, could not be matched with the blood found on the Salwar

as the sample had „putrefied‟. As regards the blood on the chunni,

even though the FSL report states that the blood was of human

origin, it could not be matched with the blood sample of Jaswinder

Kaur (PW8). It is important to note that in the MLC, it has been

clearly recorded that Jaswinder Kaur (PW8), at the time when she

was admitted to the hospital, smelled of alcohol. It is also pertinent

to note that in the MLC the initial examination did not establish

categorically that the injury was caused by a bullet. The prosecution

attempted to establish the same by relying upon the testimony of

constable Kamal Singh (PW6) who deposed that a sealed pulanda

(packet) was handed over to him which contained the bullet,

evidently removed after Jaswinder Kaur (PW8) was operated at DDU

Hospital. SI Naresh Kumar (PW19) deposed that the said sealed

pulanda (packet) with the seal of CMO, DDU Hospital was handed

over by constable Kamal Singh (PW6). What the prosecution has not

thereafter been able to establish is that whether the bullet, which

was sent to FSL for examination, was the bullet which was lodged in

the left leg of Jaswinder Kaur (PW8). Further, as to whether, the said

bullet was the one which was fired by appellant/accused Rakesh @

Pahelwan, since the weapon of offence was not found by the

prosecution. There is also a contradiction in the testimony of

constable Mukesh Kumar (PW4), who, in his examination-in-chief,

said that the statement of Jaswinder Kaur (PW8) was recorded by the

I.O. immediately after he returned from the spot of incident to the

hospital. He contradicted himself in the cross-examination when he

deposed that on reaching the DDU hospital from the spot of the

incident, they were not in a position to record the statement of

Jaswinder Kaur (PW8) as she was still unconscious. The evidence,

produced by the prosecution, does not inspire confidence, there are

far too many untied ends. As stated above, testimony of Jaswinder

Kaur (PW8) clearly seems designed to shied on the one hand

appellant/accused Mohan Lal @ Tony and on the other frame the

other appellants/accused Daya Shanker @ Raju and Rakesh @

Pahelwan.

9. The trial court‟s observation to effect that there was a shared

common intention, in as much as, the appellant/accused Mohan Lal

did nothing to protect Jaswinder Kaur (PW8) while she was beaten up

and was a mute witness to the attempt to murder is, according to me,

a misappreciation of the facts as well as the law. As observed above,

in order to attract the provisions of Section 34 of the IPC, it was

incumbent on the prosecution to prove, by direct or circumstantial

evidence, that there was a prior meeting of mind as amongst the

appellants/accused before the commission of offence. In the instant

case, there is no evidence to show either a prior shared common

intention or even evidence to show that the bullet was actually fired

by the appellants/accused Rakesh @ Pehalwan, or that the other

accused, were present at the spot, where the incident is said to have

taken place. The prosecution has not examined any public witnesses.

The testimony of Jaswinder Kaur (PW8) as observed in this instant

case is completely unreliable. It seems the testimony of Jaswinder

Kaur (PW8) is designed to frame the appellants/accused, if not all, at

least the appellants/accused Daya Shanker @ Raju & Rakesh @

Pehalwan. Even if it is assumed that appellant/accused Rakesh @

Pahelwan did fire the shot, injured Jaswinder Kaur‟s (PW8), own

testimony belies the fact that the shot was fired with an attempt to

murder Jaswinder Kaur (PW8). Her own testimony seems to suggest

that in the altercation the revolver fired and the bullet hit her. Her

own testimony is suggestive of the fact that there was no attempt to

murder Jaswinder Kaur (PW8).

10. In view of the discussion above, I am of the view that the

prosecution has failed to establish its case beyond reasonable doubt

as against all the appellants/accused. The benefit of doubt must go in

favour of the appellants/ accused. As a matter of fact, as noted

hereinabove, the trial court has in my view compromised the defence

of appellants/accused by recording their statement under Section 313

of the Cr.P.C. without due diligence and application of mind.

Resultantly, the impugned judgment dated 20.02.2009 of the trial

court is set aside; and the appeals are allowed. The appellants are

acquitted. The appellants shall be set free, if they are not required

in any other case.

RAJIV SHAKDHER, J SEPTEMBER 01, 2009 kk