Delhi High Court
Sanjeev vs State on 14 September, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 4thSeptember, 2009
Judgment Delivered On: 14th September, 2009
+ CRL.A. 541/2001
SANJEEV ..... Appellant
Through: Mr. Sandeep Sethi, Sr. Advocate
with Mr.Anurag Jain, Mr. Sindhu
Sinha, Mr. Nikhil Bhalla and
Mr. Mohit Bakshi, Advocates
versus
STATE ..... Respondent
Through: Mr. M.N.Dudeja, Advocate
CRL.A. 542/2001
KAMAL ..... Appellant
Through: Mr. Sandeep Sethi, Sr. Advocate
with Mr. Anurag Jain, Mr. Sindhu
Sinha, Mr. Nikhil Bhalla and
Mr. Mohit Bakshi, Advocates
versus
STATE ..... Respondent
Through: Mr. M.N.Dudeja, Advocate
CRL.A. 544/2001
SANT RAM ..... Appellant
Through: Mr. Sandeep Sethi, Sr. Advocate
with Mr. Anurag Jain, Mr. Sindhu
Sinha, Mr. Nikhil Bhalla and
Mr. Mohit Bakshi, Advocates
versus
STATE ..... Respondent
Crl.A.Nos.541, 542, 544 & 545/2001 Page 1 of 13
Through: Mr. M.N.Dudeja, Advocate
CRL.A. 545/2001
DHAN PAL ..... Appellant
Through: Mr. Sandeep Sethi, Sr. Advocate
with Mr. Anurag Jain, Mr. Sindhu
Sinha, Mr. Nikhil Bhalla and
Mr. Mohit Bakshi, Advocates
versus
STATE ..... Respondent
Through: Mr. M.N.Dudeja, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
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
PRADEEP NANDRAJOG, J.
1. The appellants have been convicted with the aid of
Section 34 IPC for the offence of murder of Ajay and have been
sentenced to undergo imprisonment for life.
2. The appellants are related to each other as under:-
a. Appellant Kamal is the son of appellant Dhanpal @
Dhannu.
b. Appellant Dhanpal @ Dhannu and appellant Sant
Ram @ Santu are brothers.
c. Appellant Sanjeev Kumar is the son-in-law of
appellant Dhanpal @ Dhannu. Thus, he is the brother-in-law of
appellant Kamal.
3. The complainant side and the deceased Ajay are
also related to each other as under:-
a. Complainant Sanjay Sharma PW-1 is the brother of
the deceased Ajay.
b. Narender Kumar Sharma PW-3 is the paternal uncle
(chacha) of the deceased and Ajay Kumar Sharma.
c. Shobha Ram PW-4 is the maternal uncle (mausa) of
Sanjay Sharma and the deceased Ajay.
4. It is not in dispute that Ajay was fatally stabbed
outside his house on the public street at around 6:50 PM on
9.8.1996 and information thereof was recorded at PS Bhajan
Pura vide DD No.61B Ex.PW-19/A. Copy of DD No.61B was
handed over to SI Surender Kumar PW-19 for investigation. He
left the police station in the company of Const.Ramphal PW-8
and Const.Pradeep Kumar PW-6. He reached the place where
Ajay was stabbed and learnt that Ajay had been removed to
GTB Hospital. Const.Pradeep remained stationed at the spot
to guard the same. SI Surender Kumar and Const.Ramphal
went to GTB Hospital and collected the MLC Ex.PW-16/A of
Ajay which recorded that Ajay was brought dead. They met
Sanjay Sharma PW-1 at the hospital. SI Surender Kumar
recorded the statement Ex.PW-1/A of Sanjay Sharma and after
making the endorsement Ex.PW-19/B sent Const.Ramphal for
FIR to be registered. As recorded in the endorsement Ex.PW-
19/B the statement of Sanjay Sharma was dispatched from the
hospital at 9:00 PM i.e. within 2 hours and 10 minutes of
registration of DD No.61B.
5. Sanjay Sharma implicated the appellants of having
murdered Ajay. As per him, on 9.8.1996 i.e. the day of the
occurrence, at 6:15 PM his handcart was outside his house
when accused Sanjeev came on a two-wheeler scooter which
struck his handcart. Accused Sanjeev abused him and a verbal
altercation ensued. His uncle Shoba and Narender Kumar
separated them. Sanjeev left and returned after a few minutes
with the other accused and on the exhortation of appellant
Dhannu: "Leh lo gaadi wale ko bach ke jaane na pai" appellant
Sanjeev and Santu as also Dhannu caught hold of Ajay and
Kamal inflicted knife blows on his buttock, abdomen and chest.
6. SI Surender Kumar seized the body and sent it to
the mortuary for post-mortem and returned to the spot. He
summoned a photographer to take photographs of the spot.
He prepared the site plan Ex.PW-19/C and lifted blood and
earth control from the spot as recorded in the memo Ex.PW-
3/A.
7. At the mortuary, post-mortem of the deceased was
conducted by Dr.Anil Kohli who prepared the post-mortem
Ex.PW-14/A noting thereon 7 injuries on the persons of Ajay,
being as under:-
"1. Incised stab wound measuring 1.6 cm x 0.3 cm
x 4 cm present over right side of buttock, going
upwards, medially and anteriorly. It is spindle
shaped with clean cut margins and are angle of the
wound is more acute than the other. No major blood
vessels cut. It is placed 7.5 cm to the right of gluteal
cleft.
2. Incised stab wound 2 cm x 0.3 cm, present over
midline of front of chest, placed 15 cm below the
sternal notch. It is spindle shaped with clean cut
margins and are angle of the wound is more acute
than the other. On dissection the track of the wound
is cutting the sternum, entering the pericardial sac,
passing through and through the right ventricle of
heart and terminated on cutting the lower lobe of
right lung. Its direction is going downwards laterally
and posterially and depth is 9 cm.
3. Incised stab wounds, 2 cm x 0.4 cm, present
over midline of front of abdomen 8.5 cm below the
xiphoid process. It is spindle shaped with clean cut
margin and are angle of the wound is more acute
than the other. On dissection the track of the wound
is going subcutaneously, upwards and anterially and
terminated on cutting the sternum. No major blood
vessel or organ cut. Length of track is 8 cm.
4. Incised stab wound 1.6 x 0.2 cm present over
right side of chest in the mid axillary line, placed 12
cm to the right of right nipple and 8 cm below the
axillary fold. It is spindle shaped with clean cut
margins and are angle of the wound is more acute
than the other. On dissection the track of the wound
is going subcutaneously upwards, posteriorly to
medially for a length of 6.8 cm. No major blood
vessel or organ was cut.
5. Incised wound 1.5 cm x 0.2 cm x 0.1 cm
present in midline over front of abdomen placed 5
cm below the umbilicus.
6. Red abrasion 2 cm x 0.6 cm present over back
of left forearm 2 cm elbow jt.
7. Linear scratch 4 cm x 0.1 cm present over left
side front of neck started from midline and going
obliquely 3 cm below the angle of mandalble."
8. Eschewing reference to the recoveries got effected
from the accused, since learned counsel for the parties agreed
that the fate of the appeals hinges upon the testimony of PW-
1, PW-3 and PW-4, the three eye-witnesses, we proceed to
straight away note the testimony of the three witnesses.
9. Sanjay Sharma PW-1 deposed in harmony with his
statement Ex.PW-1/A pursuant whereto the FIR was registered.
He deposed the facts as noted in para 5 above. Suffice would
it be to note that while deposing in Court and as stated in
Ex.PW-1/A Kamal took out a knife at the spur of the moment
and attacked Ajay.
10. Narender Kumar Sharma PW-3 deposed in harmony
with the testimony of Sanjay Sharma, with the exception he
quoted the exhortation of Dhannu as "Leh lo daadi wale ko
bach ke jaane na pai".
11. Shoba Ram PW-4 deposed substantially the same
as deposed by PW-1 save and except assigned no roles as to
who caught and who stabbed. He simply stated that all the
accused attacked Ajay.
12. There are, thus, discrepancies in the evidence and
far from being surprised at the discrepancies, we would rather
be surprised if there were none. Witnesses do not have
photogenic memories and as long as in the core and in the
substance they narrate, in their own language, the relevant
facts, it can safely be said that the witnesses have
corroborated each other. When many people participate in the
commission of an offence and many persons witness the
same, due to lapse of memory, it may happen that a particular
witness may assign an incorrect role to a particular accused.
13. From the testimony of the three eye-witnesses it is
apparent that PW-1 and PW-3 have categorically stated that
accused Kamal had inflicted the knife blows. Both of them
have stated that accused Dhannu gave the exhortation. Both
of them categorically say that Dhannu, Sanjeev and Sant Ram
caught the deceased. The variation is with respect to the
exact words spoken by Dhannu when he gave the exhortation.
Of course, PW-4, as noted above has deposed in an omnibus
manner. The variation in the language of exhortation as
deposed to by the three witnesses relates to the word „gaadi‟
and „daadi‟. We need not expound. The phonetic similarity of
the two words is the likely cause of confusion.
14. We are satisfied that the three witness have
deposed truthfully and being residents of the house outside
where the deceased was killed are natural witnesses keeping
into account that the incident took place between 6:15 and
6:30 PM, a time when people return home after work.
15. Sanjay's presence with the deceased is
independently established by the fact that the MLC of the
deceased shows that Sanjay had brought Ajay to the hospital.
His statement Ex.PW-1/A has been recorded within about two
hours of the incident giving him hardly any time to cook up a
version.
16. The only point worthy of consideration in the
appeals is whether Dhannu, Sanjeev and Santu can be painted
with the same taint as Kamal, who must face the consequence
of his acts. The injuries caused by him, as noted in para 7
above, show that injuries No.2 to 5 are directed towards the
chest and the abdomen and have gone very deep inside. Qua
him, intention to cause the injuries inflicted by him is proved
through the testimony of PW-1 and PW-3 who have deposed
that Kamal struck blows on the chest and the abdomen as also
on the buttock of the deceased. It is apparent that Kamal
intended to strike and succeeded in striking four blows on the
chest and the abdomen. He struck lethally. The acts
committed by him clearly attract the third limb of Section 300
IPC.
17. Pertaining to the other three co-accused, we
proceed to analyze the evidence by recreating what had
happened. A verbal quarrel took place on a trivial issue
between Sanjay PW-1 and appellant Sanjeev. With the
intervention of the family elders of Sanjay, peace was
restored. Sanjeev left and returned within a few minutes with
Kamal, Sant Ram and Dhanpal. Kamal was carrying a knife
hidden somewhere, most probably in his pant pocket. In any
case he was not having a knife in his hand. The three co-
accused were unaware that Kamal was carrying a knife. It is
apparent that the accused returned to the spot to resume the
quarrel. Now, it is apparent that the accused must have
thought of an action plan which the prosecution could not
unearth. It does become difficult to bring on record evidence
of prior concert, especially when the retaliation is within
minutes. But one thing is certain. The accused returned with
an intention of doing something. On reaching the spot,
appellant Dhannu gave an exhortation which evidences that
the intention of the appellants was to physically take on Sanjay
or may be Ajay. Of course, ordinarily, Sanjay should be the
target. But, Ajay, brother of Sanjay could equally be a target
because the grievance of the accused was that the Sharma
family would park a handcart belonging to the Sharmas on the
narrow public street. Simultaneous with Dhannu giving the
exhortation, appellant Sanjeev and Sant Ram caught the
deceased. So did Dhannu. This shows, that if not more, the
intention was no less than beating Ajay. Simultaneously,
Kamal took out a knife and started the assault.
18. From the aforesaid admitted facts, to be fair to the
appellants, none can hold at this stage that there was a prior
meeting of minds to murder the deceased. There is no
evidence that Sanjeev, Sant Ram and Dhannu were aware that
Kamal was carrying a knife.
19. If not impossible, it is difficult to procure direct
evidence to prove the intention of a group. Thus, intention has
to be gathered from the acts of the parties and the attendant
relevant circumstances enwombing the acts. Concerted
conduct during the commission of the offence and the
subsequent conduct has to be seen. Thus, we have to analyze
further evidence with respect to the participation of Sanjay,
Sant Ram and Dhannu when Kamal took out the knife and
started stabbing Ajay.
20. Ajay has been inflicted five stab wounds and
prudence guides us that this would take anything between ten
to fifteen seconds. Evidence proves that Sanjeev, Dhannu and
Santu caught hold of the deceased. The said accused persons,
instead of preventing each other from resorting to violence,
participated in the incident to the fullest extent i.e. continued
to catch hold of the deceased till the last stab wound was
inflicted. Injury No.7, a linear scratch 4 cm x 0.1 cm present
over left side front of neck starting from midline and going
obliquely 3 cm below the angle of mandible shows, that in an
iron grip, the neck of Ajay, was being held. Except for one
injury on the buttock inflicted with the knife, four stab wounds
have been inflicted on the front portion of the body of Ajay and
are on the chest and the abdomen. There are no defence
injuries, meaning thereby that Ajay was demobilized for at
least ten to fifteen seconds by Sanjay, Dhannu and Santu.
21. A common intention can spring even at the spur of
the moment. It can be gathered from the act and the conduct
of the accused.
22. In the decision reported as 1973 RLR 54 Krishan Lal
& Anr. vs. State, an act of a co-accused of holding on to the
deceased with a cast iron grip and continuing to hold on,
thereby exposing the injured to an attack with a knife, was
held to be attracting Section 34 of the Penal Code. The act
was held indicative of a common intention. The decision
shows that where the co-accused participates to the fullest
extent in the commission of the crime, it shows his common
intention with the other co-accused.
23. In another decision, also involving an accused with
a similar name; being Kishan Lal, reported as 1995 Cri.L.J.2161
Kishan Lal & Ors. vs. The State, in para 15 it was observed as
under:-
"15. It appears that in that case the appellant Inderjit
was merely present with the assailants and he had not
taken any part in the assault on the deceased and
therefore, it was held that he could not be held guilty
under Section 34 but in the case before us the
evidence of the three prosecution witnesses clearly
shows that the appellant Kishan Lal had tightly caught
hold of deceased Amir Chand till the appellant Ashok
Kumar had finished him by giving the four blows of the
knife one after another and then both of them left him
there and took to their heels. Therefore, in the case
before us there is active participation of appellant
Kishan Lal in assaulting the deceased and hence the
appellant Kishan Lal is rightly held guilt under Section
302 read with Section 34 IPC."
24. We thus hold that appellants Sanjay, Dhannu and
Sant Ram @Santu, by their acts of catching hold and
continuing to catch hold of the deceased till the very end, and
having participated in the incident to the fullest extent, by
exposing Ajay to the assault till the end, have evidenced their
intention common with that of Kamal and hence are
vicariously liable for the action of Kamal.
25. We find no merit in the appeals which are
dismissed.
26. The appellants are on bail. The bail bonds and
surety bonds furnished by the appellants are cancelled. The
appellants are directed to surrender and undergo the
remaining sentence.
(PRADEEP NANDRAJOG)
JUDGE
(INDERMEET KAUR)
JUDGE
September 14, 2009
mm/dk
