Delhi High Court
Manvir Singh & Rakesh @ Raju & Anr. vs State on 24 December, 2010
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: May 12, 2010
Judgment delivered on: December 24 , 2010
+ CRIMINAL APPEAL NO.83/1997
MANVIR SINGH ..... APPELLANT
Through: Mr. K.K. Sud, Sr. Advocate with
Mr. Neeraj Jain, Advocate.
Versus
STATE ..... RESPONDENT
Through: Mr. Lovkesh Sawhney, APP
WITH
CRIMINAL APPEAL NO.158/1997
RAKESH @ RAJU AND ANOTHER ..... APPELLANTS
Through: Mr. Mukesh Kalia, Advocate
Mr. Jitender Sethi, Advocate.
Versus
STATE ..... RESPONDENT
Through: Mr. Lovkesh Sawhney, APP
CORAM:
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
Crl. A. Nos. 83/1997 & 158/1997 Page 1 of 29
3. Whether the judgment should be reported in Digest ?
AJIT BHARIHOKE, J.
1. Above referred appeals are directed against the impugned
judgment dated 25.01.1997 of Additional Sessions Judge in Sessions
case No.202/93, FIR No.105/88, P.S. Shakarpur finding the appellants
Manvir Singh, Rakesh Kumar, Mukesh Kumar and co-accused Manjeet
Singh guilty of murder of Ashwani Kumar in furtherance of their
common intention and also holding the appellant Rakesh Kumar @
Raju guilty of offence punishable under Section 27 of the Arms Act and
convicting them accordingly as also against the consequent order on
sentence dated 29.01.1997 in terms of which the appellants have been
awarded sentence for the respective offences committed by them.
2. Briefly stated, case of the prosecution is that on 12.5.1988 at
about 9.55 p.m., some unknown person telephonically intimated P.S.
Shakarpur about a stabbing incident at Sarojini Park, Shastri Nagar,
Delhi. This information was recorded as DD No.20A (Ex.PW21/DA).
Copy of the DD report was entrusted to ASI Gian Singh, PW15 for
taking necessary action, who along with Trainee Sub Inspector Manoj
Panth, PW19 and Head Constable Mangat Ram, PW7 left for the spot of
occurrence. On reaching the spot of occurrence, ASI Gian Singh found
that the injured had already been taken to Walia Nursing Home. He
went to Walia Nursing Home where he found that the injured had been
taken to LNJP Hospital, then he reached LNJP Hospital where the SHO
Inspector Balbir Singh(PW21) was already present along with other
police staff. He handed over the copy of the DD report to the SHO.
3. On 12.5.1988 at about 10.53 p.m., another information was
received at Police Post Shakarpur from Constable Jeet Singh posted at
LNJP Hospital that one Ashwani Kumar has been brought dead to LNJP
Hospital by his brother Raj Kumar. This information was recorded as
DD No.22A(Ex.PW18/DA) in Daily Diary Register maintained at Police
Post Shakarpur. On this, SHO Inspector Balbir Singh went to LNJP
Hospital in an official vehicle along with the other police staff and
collected the MLC of the deceased wherein he was declared brought
dead.
4. Inspector Balbir Singh, PW21 met Raj Kumar, PW2 at the hospital
and recorded his statement Ex.PW2/A. Raj Kumar, in his statement
Ex.PW2/A claimed that on the night of 12.5.1988 at about 9.40 p.m., he
and his brothers Rajinder Kumar, PW3 and Ashwani Kumar (hereinafter
referred to as deceased) started from House No.82-A, Shastri Nagar,
Sarojini Park for their House No.17/55, Geeta Colony. He and PW3
Rajinder Kumar were walking ahead and the deceased was following
them at a distance of 15 to 20 paces. On the way, they noticed the
appellants, namely, Manvir, his sons Mukesh and Rakesh and co-
accused Manjeet, (friend of Rakesh) standing in front of House No.54-A,
Shastri Nagar. They had hardly gone 20/25 paces ahead of that house
when they heard cries of their brother Ashwani (deceased) as „Bachao
Bachao‟. On this, they turned back and saw the appellant Mukesh and
co-accused Manjeet were holding the deceased and Rakesh was
holding a dagger in his hand. Appellant Manvir exhorted Rakesh @
Raju to kill the deceased by uttering the words "Raju Dekhta Kya Hai
Maar Churri". On the exhortation of Manvir, Rakesh @ Raju inflicted
dagger blows on the person of the deceased. Complainant Raj Kumar
claimed that they ran towards the place of incident but all the four
accused persons ran away from the spot. The deceased fell down due
to the injuries. He was taken in a three wheeler scooter to Walia
Nursing Home and from there, he was taken to LNJP Hospital where he
was declared brought dead. Inspector Balbir Singh appended his
endorsement Ex.PW21/A on the said statement of complainant Raj
Kumar and sent it to the police station for registration of the case.
5. From LNJP Hospital, Inspector Balbir Singh came to the spot of
occurrence along with the witnesses. He prepared rough site plan of
the place of occurrence Ex.PW21/B and also got the scene of
occurrence photographed. The positive photographs are Ex.PW6/3 and
Ex.PW6/4. Investigating Officer also lifted and seized the sample of
blood-stained earth as well as sample earth from the spot of
occurrence, vide respective memos Ex.PW2/B and Ex.PW2/C. He took
into possession blood-stained kurta pyjama Exs.P1 and P2 of
complainant Raj Kumar vide memo Ex.PW2/D. He recorded statements
of the witnesses, conducted inquest proceedings and sent the dead
body of Ashwani Kumar for post-mortem examination.
6. Appellants Mukesh and Manvir were arrested on the same night.
Co-accused Manjeet and appellant Rakesh were arrested on 14.5.1988
from Bihari Colony. Appellant Rakesh, on interrogation made a
disclosure statement that he had concealed the weapon of offence in
some papers lying in his house. His disclosure statement Ex.PW15/A
was reduced into writing. On 15.5.1988, appellant Rakesh led the
police party to his house and from there he produced a dagger Ex.P8
and its cover Ex.P9 from a heap of papers and books lying in the house.
The dagger Ex.P8 as well as its cover Ex.P9 were both stained with
blood. The sketch of dagger as well as its cover Ex.PW12/A was
prepared and both were sealed and taken into possession vide memo
Ex.PW12/B. The exhibits were sent to CFSL for analysis in untampered
condition and the report of CFSL Ex.PW21/E was collected. On
completion of the formalities of investigation, appellants were
challaned and sent for trial.
7. Learned Additional Sessions Judge charged the appellants for the
murder of Ashwani Kumar in furtherance of their common intention
under Section 302 IPC read with Section 34 IPC. Appellant Rakesh @
Raju was also charged for the offence punishable under Section 27 of
the Arms Act. The appellants pleaded not guilty to the respective
charges framed against them and claimed to be tried.
8. In order to bring home the guilt of the appellants, the prosecution
has examined 21 witnesses including the eye-witnesses PW2 Raj
Kumar, PW3 Rajinder Kumar and PW11 Jugal Kishore, TSR driver.
9. PW-2 Raj Kumar is the complainant as well as brother of the
deceased. He testified that there was some dispute over financial
dealings between the deceased Ashwani Kumar @ Bachu one hand and
the appellants Rakesh @ Raju and Manvir on the other hand. He
further claimed that on 12.5.1988 at about 9.40 p.m., he along with his
brother Rajinder(PW3) and Ashwani(deceased) was going to Geeta
Colony from House No.82-A, Shastri Nagar. He and PW-3 Rajinder and
Ashwani(deceased) was going to Geeta Colony from House No.82-A,
Sarojini Park, Shastri Nagar. He and PW-3 Rajinder were walking ahead
and the deceased was following them at a distance of 20-25 paces.
When they reached near House No.54-A, Shastri Nagar, he noticed the
appellants Manvir Singh, Mukesh and Rakesh standing with the co-
accused Manjeet. While they moved ahead, they heard the alarm
`bachao bachao‟. On this, they turned back and saw that the appellant
Mukesh and co-accused Manjeet were holding the deceased physically.
There was a knife in the hand of the appellant Rakesh. Appellant
Manvir exhorted Rakesh @ Raju to stab Ashwani by saying "dekhta kya
hai maar de chhuri" and on exhortation, appellant Raju inflicted several
knife injuries on the person of Ashwani(deceased) and, thereafter all
the four accused persona fled away. He further claimed that he along
with his brother Rajinder (PW-3) and Jugal Kishore(PW-11) took injured
Ashwai Kumar in a three wheeler scooter to Walia Nursing Home,
Shakar Pur and from there the deceased was taken to J.P.N. Hospital in
an ambulance where he was declared brought dead. Witness testified
that his statement was recorded by the police which he signed at the
police station. He has proved his statement Ex.PW-2/A. PW-2 Raj
Kumar further stated that police brought him and his brother Rajinder
to the spot of occurrence and prepared rough site plan with his
assistance. The police also took into possession blood stained earth as
well as control earth from the place of occurrence and put the samples
separately in empty match boxes which were sealed at the spot and
taken into possession vide seizure memos. He further stated that while
taking the deceased Ashwani Kumar to Walia Nursing Home, his
clothes got stained with blood, which clothes i.e. Kurta and Payjama
were handed over to the police and the police converted said Kurta and
Payjama into a sealed parcel and took into possession vide seizure
memo Ex.PW-2/D. He identified Kurta and Payjama as Ex.P-1 and P-2
respectively.
10. PW-3 Rajinder Kumar is also the brother of the deceased and he
has deposed in a manner almost similar to the version of PW-2.
11. PW-11 Jugal Kishore has stated that earlier he used to drive a
three wheeler scooter. On 13th April 1988 at about 9.40 p.m., he was
going on his three wheeler scooter towards his house at Kundan Nagar.
When he reached near Halwai shop near Nehru Crossing, he saw the
appellants Rakesh, Mukesh and Manvir and co-accused Manjeet
beating Ashwani(deceased) and the aforesaid appellants thereafter ran
away towards Shastri Nagar. Ashwani was having stab injuries on the
front portion of his body on the chest and was bleeding. He stated that
he saw that Manjeet and Mukesh had caught hold of Ashwani and
Rakesh @ Raju had given stab injuries. He further claimed that two
brothers of Ashwani took him to Walia Nursing Home in his three
wheeler scooter and from there Ashwani was taken away in an
ambulance and thereafter he came home. He also stated that Manvir
had exhorted other co-accused to beat Ashwani.
12. The appellants in their statement under Section 313 Cr.P.C.
denied the prosecution case in its entirety and claimed themselves to
be innocent. Appellant Rakesh in his statement has claimed that he
was picked up from his house on the night of 12.5.1988 and falsely
implicated by the police. He claimed that the dagger Ex.P8 was not
recovered from his possession. According to him, initially one Rakesh,
s/o Mohan Lal was arrested by the police, but he was subsequently
released at the instance of the complainant for some ulterior motive
and he (appellant Rakesh) was falsely implicated in this case.
Appellant Manvir Singh has claimed that the deceased Ashwani Kumar
was known to him. There was a dispute between the deceased and his
brother Ashok Kumar over the sale of plot of land in Sarojini Park,
Shastri Nagar, Delhi, which was sold by Ashok vide general power of
attorney Ex.PW2/DA on 11.5.1988. He claimed that PW2 Raj Kumar
and PW3 Rajinder Kumar were apprehensive that in that dispute, he
was taking side with Ashwani Kumar, as such he has been falsely
implicated on suspicion. Appellant Mukesh Kumar has taken a plea of
alibi. He claimed that he had gone to Agra in connection with his BA
examination. Since there were some holidays in between he boarded a
train on 12.5.1988 and reached home at Delhi at about 10.30 p.m. His
father Manvir Singh and his brother Rakesh were present at the house.
On the same night, police came and apprehended all of them and took
them to the police station. On 14.5.1988 he was again taken to the
police station. Accused Manjeet has claimed that he has been falsely
implicated by the police for the reason that his name happens to be
Manjeet and the police had failed to trace the real culprits. He also
claimed that on 13.5.1988 and even on 14.5.1988, the police had
inquired from him if he had any knowledge about the murder of
Ashwani Kumar and he had told them that he had no knowledge about
the murder of the deceased.
13. Appellant Mukesh, in order to prove his alibi, has examined DW1
Mahesh Chand and DW2 Narender Kumar. DW1 Mahesh Chand has
stated that Mukesh, s/o Manvir Singh stayed at his house at Agra from
19.4.1988 to 12.5.1988, in connection with BA first year examinations.
On 12.5.1988, Mukesh appeared for Hindi first paper in the morning
shift and his Hindi second paper was scheduled for 13.5.1988, which
was postponed for 19.5.1988. On coming to know, Mukesh decided to
go to Delhi and he left Agra by Taj Express on 12.5.1988 at about 7.00
or 7.15 p.m. He stated on 19.12.1988, he had sworn an affidavit
Ex.DW1/A in this regard before the notary at Agra. DW2 Narender
Kumar, brother-in-law of appellant Mukesh, claimed that on 12.5.1988,
he was sitting at the shop of DW1 at Agra. At about 5.45 p.m.
appellant came there and told him that his next examination has been
postponed from 13.5.1988 to 19.5.1988, therefore, he wanted to leave
for Delhi by Taj Express. He stated that Mukesh left for Delhi on
12.5.1988 by Taj Express at about 7.00 p.m. Later on he came to know
that Mukesh has been falsely implicated in a murder case at Delhi. He
also stated that he sworn an affidavit Ex.DW2/A in this regard before
the notary on 20.12.1988. DW3, Head Constable Prem Chand was
Moharir Malkhana, P.S. Seelampur, Delhi. He deposed on the basis of
daily diary registers maintained at P.S. Seelampur and proved DD
No.104B pertaining to arrest of appellant Manjeet Singh in case FIR
No.256/92, under the Arms Act, registered at P.S. Seelampur as
Ex.D3/1. He also proved DD No.36A relating to case FIR No.255/92
under the Arms Act regarding putting up of the appellant Manjeet
Singh in lock up as Ex.D3/2.
14. Learned Additional Sessions Judge, on consideration of the
evidence, found the appellants guilty of murder of Ashwani Kumar
punishable under Section 302 IPC read with Section 34 IPC. He also
found the appellant Rakesh Kumar @ Raju guilty of the charge under
Section 27 of the Arms Act and convicted the appellants accordingly.
15. Learned Shri K.K.Sud, Senior Advocate appearing for the
appellant Manvir Singh in Crl.A.No.83/1997 and learned Shri Mukesh
Kalia, Advocate and Shri Jitender Sethi, Advocate appearing for the
appellants Mukesh and Rakesh in Crl. A. No.158/97 have assailed the
impugned judgment on almost similar lines. It is submitted on behalf
of the appellants that they are innocent and they have been falsely
implicated in this case. It is contended that learned trial Judge has
committed a grave error in not appreciating the fact that this is a clear
case of unfair investigation -there was no motive on the part of the
appellants to kill the deceased - and the ocular witnesses, namely,
PW2 Raj Kumar (complainant), PW3 Rajender Kumar and PW11 Jugal
Kishore are not reliable as their presence at the time of occurrence is
highly doubtful. It is also contended that prosecution story, when
tested in the background of the medical evidence, is highly improbable.
Thus, it is urged that in view of the above referred infirmities, the
appellants are entitled to acquittal.
16. As regards unfair investigation, contention of the appellants is
two-fold. It is argued that this is a clear case of delay in registration of
the case. Dilating on the argument, learned counsels appearing for the
appellants submitted that from the testimony of PW1 Dr. Ashok Walia,
it is evident that the deceased was taken to Walia Nursing Home on the
fateful night somewhere around 9:30 pm and the police also reached
there and removed the deceased to the hospital. If this is true then
obviously, the police had an opportunity to record the statement of two
or three boys who had accompanied the deceased to Walia Nursing
Home there, but instead, as per the version of the Investigating Officer,
the statement of the complainant was recorded at JPN Hospital much
later. Learned counsels also drew our attention to the testimony of
PW2 Raj Kumar who has stated that he signed the complaint Ex.PW2/A
at the Police Station and submitted that from this it can be safely
inferred that that the statement of the complainant was not even
recorded at JPN Hospital as projected by the prosecution. From the
above circumstances, learned counsels have urged us to infer that this
is a clear case of delay in registration of FIR. It is further submitted
that the delay in registration of FIR and ante timing of the same is
further confirmed by the fact that the prosecution has failed to prove
the special report sent to the area Metropolitan Magistrate as
envisaged under Section 157 Cr.P.C.
17. We are not convinced with the above argument. On perusal of
the rukka Ex.PW21/A vide which the complaint Ex.PW2/A was sent to
the Police Station for registration of the case, it transpires that the
incident took place somewhere around 9:40 pm and the rukka was sent
to the Police Station from the JPN Hospital at about 11:50 pm. From
FIR Ex.PW16/A, it is evident that it was registered vide DD No.22A on
30.05.1988 at 12.30 pm. Thus, it is clear from the aforesaid
documents that the FIR pertaining to the occurrence was registered
within three hours from the incident. During this period, as per the
evidence, two brothers of the deceased had taken the injured
deceased to Walia Nursing Home and from there to JPN Hospital where
the Investigating Officer met the complainant and recorded his
statement. In that backdrop, by no stretch of imagination, the FIR
registered within three hours of the incident can be termed as a
delayed FIR. Thus, in our view, the FIR in this case has been registered
promptly and this rules out any possibility of the FIR being the
consequence of deliberations on the part of the complainant and others
to falsely implicate the appellants. Just because PW2 Raj Kumar in his
testimony stated that he signed the complaint Ex.PW2/A at the Police
Station, it cannot be inferred that the Investigating Officer Balbir Singh,
SHO (PW21) has deposed falsely to the effect that he recorded the
statement of the complainant Raj Kumar at JPN Hospital and sent rukka
from there. The above version of PW2 Raj Kumar regarding signing of
complaint at Police Station can be attributed to the lapse of memory
due to passage of time and it is of no consequence.
18. Learned counsels further submitted that in the instant case,
prosecution has failed to prove that special report was promptly sent to
the Metropolitan Magistrate as required under Section 157 Cr.P.C.
Therefore, there is a strong possibility of ante timing of FIR by the
investigating agency. In this regard, testimony of PW13 Constable
Satpal is relevant. He has testified that on the night intervening 12th
and 13th May, 1988, duty officer P.S. Shakar Pur handed over to him
documents for delivery at the house of Ilaka Magistrate. In the cross-
examination, PW13 stated that he delivered the copy of the FIR at the
residence of Ilaka Magistrate on the night of 13.05.1988 at about 1:25
or 1:30 am, but he did not obtain signatures of learned M.M. in token of
his having delivered the copy of FIR to him. From the aforesaid
testimony of Constable Satpal, it is established that special report was
delivered to Ilaka Metropolitan Magistrate without delay on the same
night within an hour of the registration of FIR. Thus, under the
circumstances, we are not convinced with the submission that this is a
case of ante timing or delay in registration of the FIR.
19. Regarding the reliability of the testimony of the ocular witnesses,
learned counsels for the appellants have submitted that the learned
trial Judge has failed to appreciate that the prosecution case is based
upon the testimony of two brothers of the deceased and so-called eye
witness Jugal Kishore (PW11). It is submitted that Jugal Kishore is a
planted witness and his presence at the time of occurrence is highly
doubtful for the reason that PW2 Raj Kumar in his cross-examination
admitted that Jugal Kishore was known to him for three to four years
prior to the occurrence and despite this, his name does not find
mention in the FIR.
20. We find no merit in this contention. It is well settled that FIR
basically is the information regarding the commission of offence which
sets the investigating agency into motion. FIR is a document
containing facts constituting the information regarding commission of
offence. There is no legal requirement under any law that the FIR must
indicate all the minute details of the occurrence constituting the
offence and indicate names of all the eye witnesses. The Supreme
Court while dealing with this issue in the matter of Gunnana
Pentayya v. State of A.P., (2009) 16 SCC 59, inter alia, observed
thus:
"9. So far as non-mention of the details in Ext. P-1 is concerned, the
first information report is not supposed to be encyclopaedia of all
details. In the instant case, all relevant details have been indicated
in the first information report. ......
12..... in State of M.P. v. Mansingh it was observed that mere non-
mention of name of the witness does not render the prosecution
version fragile. There can be no hard-and-fast rule that names of
witnesses, more particularly, eyewitnesses should be indicated in
the FIR. ......"
21. In view of the above enunciation of law, non-mention of the name
of PW11 Jugal Kishore in the FIR as a witness is of no consequence.
22. Learned counsels further submitted that Jugal Kishore was a TSR
driver and his presence at the time of incident is doubtful for the
reason that as per his cross-examination, he did not have requisite
badge for driving the TSR. In this regard, appellants drew our attention
to the cross-examination of PW Jugal Kishore on behalf of appellant
Rakesh, wherein he stated "since that badge was out of stock and
there was endorsement on the licence that badge was out of stock for
the last three years". Learned counsels argued that the prosecution
has failed to prove the aforesaid driving licence to verify the above
explanation given by Jugal Kishore and this circumstance casts a strong
doubt against the prosecution story that Jugal Kishore actually took the
deceased and his brothers to Walia Nursing Home in his TSR.
23. We do not find any merit in this contention. PW11 Jugal Kishore
has candidly explained that he was not having a TSR driving badge as
the badges were out of stock. There is no reason to suspect the
correctness of said explanation. Otherwise also, it is common
knowledge that in Delhi, several persons drive vehicles, commercial or
private, without licence or without the driver or conductor badge.
Therefore, non-availability of TSR badge with Jugal Kishore cannot be
taken as a reason to suspect his version or his presence at the time of
occurrence.
24. Learned counsels further contended that even the presence of
PW3 Rajender Kumar at the time of occurrence is doubtful, which
makes him an unreliable witness. In support of this contention,
learned counsels urged that as per the case of prosecution, the
deceased was taken from the spot of occurrence by PW2 and PW3 in a
three wheeler scooter of Jugal Kishore. Admittedly, the deceased had
sustained multiple stab injuries, which imply that he must have been
profusely bleeding. Despite that, there were no blood-stains on the
clothes of PW3 Rajender Kumar, otherwise his clothes would have been
seized by the Investigating Officer. Learned counsels urged that it is
highly improbably that if Rajender Kumar (PW3) had accompanied the
deceased in a TSR to Walia Nursing Home, his clothes would not have
been stained with blood.
25. We are not convinced with the argument. PW3 Rajender Kumar
has testified that the deceased was lifted from the spot of occurrence
by his brother Raj Kumar and put in the three wheeler scooter.
Thereafter, they removed him in the TSR of Jugal Kishore to Walia
Nursing Home, Shakar Pur. From this version, it is evident that Raj
Kumar did not lift the injured for helping him board the TSR. This
explains the absence of blood-stains on his clothes. From the post
mortem report Ex.PW5/A, it is apparent that the deceased had
sustained injuries on the front portion of his body. It is possible that
the deceased was placed in TSR in such a manner that his front portion
was towards PW2 Raj Kumar and PW3 Rajender Kumar did not come in
contact with his front portion and in that situation, there was no
possibility of PW3 Rajender getting blood-stains on his clothes. Thus,
absence of the blood-stains on the clothes of Rajender Kumar cannot
be taken as a circumstance to rule out his presence at the spot or
doubt his testimony.
26. Learned counsels further argued that the prosecution story is
highly improbable. Dilating on the argument, they submitted that as
per the testimony of PW-5 Dr.Vishnu Kumar, Autopsy Surgeon, there
were as many as 15 external injuries on the person of the deceased,
which are detailed below:-
"1. Incised penetrating wound with entry wound of 1.4 X 0.5 CM
oblique, over outer part of right cheek region, lower inner
end being 4.5 CM outside the lower outer part of right side
nostril. Margins of the wound were clean cut but showed
abrasions at places around. This was then going underneath
the skin and came out as exit wound just above and outside
entry wound of 1.4 CM just below and outside the outer angle
of right eye.
2. Multiple abrasions in 4.5X 0.5 CM on right upper eye lid
running transversely.
3. Incised wound 1.3X 0.2 CM present just to the right of bridge
of nose, bone deep and few abrasions around margin.
4. Multiple small abrasions in an area of 7X2 CM over right side
forehead and inner part of left side forehead.
5. Abrasion 1.5 X 1 CM on the upper part of left side of nose just
below the bridge.
6. Abrasion 1.5 X 1 CM in left temple region of head.
7. Bruise involving nearly whole of right external ear and a
small area of scalp behind right ear.
8. Abrasion 5.5 X 1 CM on the top of right shoulder.
9. Multiple small abrasions in 3 X .5 CM area on the inner part of
right elbow region.
10. Deference cuts present on the front surfaces of left hand
inner three fingers just below the proximal interphalyngealy
joints, bone deep.
11. Small superfacial cus-defence cut 0.7 X 0.1 CM, transverse on
left palm just near the base of left middle finger.
12. Small superfacial cut-defence cut of 0.6 X 0.1 CM on the
inner border of left hand thumb near its middle region.
13. Multiple superfacial abrasions scattered in 7 X 5 CM area on
the inner part of left elbow region.
14. Small abrasions 1 X 0.5 CM in right mid-lumbar region on the
back near mid line.
15. Incised stab wound 2.3 X 1 CM, vertical, unstitched, on the
outer surface of right side of chest in posterior axillary line,
both margins clean cut, both angles acute and lower end
being 1.7 CM above right heel. It was chest cavity deep and
blood was oozing out of pressure over chest wall."
Learned counsels contended that as per the case of prosecution, the
deceased was physically held by the appellant Mukesh and co-accused
Manjeet and he was inflicted multiple stab wounds by the appellant
Rakesh @ Raju on the exhortation of the appellant Manvir. It is
contended that if aforesaid version was true, then all the injuries on the
person of the deceased would have been incised wounds caused by a
sharp weapon. This, however, is not the case and injuries
No.2,4,5,6,7,8,9 and 14 are abrasions and bruises which could be the
result of beating by blunt force or fall or dragging on the ground, which
is not the case of the prosecution. Thus, the aforesaid injuries remain
unexplained and this casts a strong doubt on correctness of the version
of the prosecution witnesses i.e. PW-2 Raj Kumar, PW-3 Rajinder and
PW-11 Jugal Kishore.
27. At the first blush, the argument advanced on behalf of the
appellants appears to be attractive. But on closer scrutiny of evidence,
we find no merit in this contention. From the statement of PW-2 Raj
Kumar, which is corroborated by PW-3 Rajinder, it transpires that at the
time of the incident, they were walking 15-20 paces ahead of the
injured and their attention was diverted towards the place of
occurrence on hearing the alarm `bachao bachao‟. It is possible that
there might have been some time gap between the start of beating
given to the deceased and his raising alarm and during said period, he
might have fallen down or been beaten, resulting in the aforesaid
abrasion and bruises. Otherwise also, as per the version of PW-2 Raj
Kumar and PW-3 Rajinder, the incident took place suddenly and if they
had failed to notice the entire episode of occurrence, it cannot be taken
as a reason to suspect the correctness of their version. Further, on
perusal of the complaint statement of Raj Kumar Ex.PW-2/A which was
recorded by the police shortly after the incident at J.P.N. Hospital, it
transpires that he had named all the four accused persons in the
complaint and had stated that appellant Rakesh inflicted dagger blows
on the person of the deceased at the exhortation of Manvir. Under the
natural course of circumstances, it is highly improbable that within an
hour or so of the death of his brother Ashwani due to brutal stabbing,
the complainant might have thought to settle scores with the
appellants by falsely implicating them, knowing fully well that this
would result in the real culprit going scot free. Thus, we do not find
merit in the above contention.
28. It is further contended on behalf of the appellants that even the
arrest of the appellants Rakesh and Manjeet and the recovery of the
weapon of offence i.e. the dagger at the instance of the appellant
Rakesh is highly doubtful. In support of this contention, learned
counsels submitted that as per the case of prosecution, appellants
Rakesh and Manjeet were arrested on the pointing of complainant Raj
Kumar on 14th May 1988 and Raj Kumar signed their personal search
memos as a witness. Raj Kumar, however, in his testimony has stated
that none of the accused persons were arrested in his presence. Thus,
in view of the above version of Raj Kumar, it is a mystery as to how the
police could identify and arrest the appellants Rakesh and Manjeet on
14th May 1988, particularly when their physical description was not
given by the complainant in his complaint Ex.PW-2/A.
29. We find no merit in this contention. The statement of
complainant Raj Kumar to the effect that none of the appellants was
arrested in his presence is not so material so as to discard the
testimony of PW-15ASI Gian Singh, who categorically stated that on
14th May 1988 above referred two appellants were arrested on the
pointing out of the complainant Raj Kumar. On perusal of personal
search memos of the appellants Rakesh Kumar and Manjeet Ex.PW-2/J
and PW-2/K, it transpires that these memos have been signed by the
complainant Raj Kumar, which indicates that Raj Kumar was actually
present at the time arrest of those two accused persons.
30. It is further contended that even the evidence of prosecution
regarding recovery of knife at the instance of the appellant Rakesh @
Raju is doubtful. Dilating on this argument, learned counsels submitted
that as per the case of prosecution, the disclosure Ex.PW-15/A made by
Rakesh was that "the dagger with which I inflicted blows at the person
of Ashwani Kumar alias Bichu at the night of 13.5.88, has been
concealed by me in the bundle of papers at my factory of book binding.
I can point out the said bundle of papers and can get recovered the
dagger", whereas the recovery of the dagger has been allegedly
effected by the appellant from the residential house No.13/B, New
Lahore Colony, Shastri Nagar and not from a factory.
31. In our considered view, this infirmity pointed out by learned
counsel for the appellants is of no consequence. As per the disclosure
statement, appellant Rakesh had stated that he could get the dagger
recovered from his book binding factory where he had concealed the
same under the bundle of papers. In the disclosure statement,
appellant Rakesh Kumar has not given the address of his factory. As
per the recovery memo, the recovery was effected from House No.13-
B, New Lahore Colony, Shastri Nagar and it was produced by the
accused from a godown of papers from within the bundle of papers
lying near the west wall of the godown. If we compare the disclosure
statement with the facts recorded in the pointing out-cum-recovery
memo, it can be safely inferred that the appellant Rakesh was doing
book binding work from his residence, which he referred to as factory
in his disclosure statement. Otherwise also, the fact remains the
recovery has been effected at the instance of the appellant Rakesh
Kumar. Therefore, we find no reason to suspect the disclosure
statement of appellant Rakesh Kumar or recovery of dagger
consequent thereupon.
32. Another argument advanced on behalf of the appellants is that
recovery of the dagger at the instance of the appellant Rakesh Kumar
is suspect for the reason that the Investigating Officer has admittedly
failed to join two or more independent and respectable inhabitants of
the locality as witnesses to the recovery which amounts to violation of
Section 100(4) of the Code of Criminal Procedure.
33. Section 100(4) of the Code of Criminal Procedure reads thus:
"Section 100. Persons in charge of closed place to allow search.
(4) Before making a search under this Chapter, the officer or other
person about to make it shall call upon two or more independent and
respectable inhabitants of the locality in which the place to be
searched is situate or of any other locality if no such inhabitant of the
said locality is available or is willing to be a witness to the search, to
attend and witness the search and may issue an order in writing to
them or any of them so to do."
34. On bare reading of the above provision, it is evident that this
provision makes it obligatory on the part of the Investigating Officer to
join two or more independent inhabitants of the locality before
conducting search of a premises under Chapter VII (C) of the Code of
Criminal Procedure, which deals with general provisions relating to
searches. Now the question is, whether the Investigating Officer had
gone to conduct search of House No.13-B, New Lahore Colony, Shastri
Nagar which led to recovery of the dagger i.e. weapon of offence? To
our mind, answer to this question is in the negative. As per the case of
prosecution, appellant Rakesh @ Raju on interrogation made a
disclosure statement and claimed that he could get the weapon of
offence recovered and pursuant to that, he himself led the police party
to his house and recovered the weapon of offence i.e. the dagger from
within the bundle of papers lying in the go-down. Thus, this is not a
case of a search conducted by the Investigating Officer. Actually, it
was the accused Rakesh who himself led the police party to his house
for getting recovered the dagger. Otherwise also, an independent
witness, namely, Satpal (PW12) was joined by the Investigating Officer
to witness the recovery of dagger at the instance of Rakesh. Thus, we
find no violation of Section 100 of the Code of Criminal Procedure
which may cast a shadow of doubt on the recovery of the dagger at the
instance of appellant Rakesh Kumar. It is not out of place to mention
that independent witness Satpal has fully supported the prosecution
case regarding recovery by stating that on 15.05.1988 he was joined
as a witness in the police party and on the said day, appellant Rakesh
Kumar led the police party to House No.13-B, New Lahore Colony,
Shastri Nagar. After opening the door of the house, he produced the
blood stained knife lying in the bundle of books, which was taken into
possession after preparing its sketch PW-12/A. He has been cross
examined at length. We find no reason to disbelieve his version
regarding recovery. It may also be pointed out that the recovered
dagger was sent to CFSL for serological examination and as per the
report of Serological Division of CFSL, human blood of group `B‟ was
found on the dagger which matched with the blood group of the stains
found on the clothes of the deceased.
35. Learned counsels for the appellants further contended that the
story of the prosecution is also improbable because there is no cogent
evidence on the record to establish any motive or reason on the part of
the appellants to kill the deceased or cause him injury.
36. In this regard, testimony of PW2 Raj Kumar (complainant) is
relevant. He in his cross-examination stated that there was some
money dispute between the deceased on the one hand and Manvir and
Rakesh on the other hand in respect of sale of a plot and that Manvir
and Rakesh owed some money to the deceased. This could be a
possible motive for the occurrence. However, PW2 Raj Kumar, when
asked, could not give the specific details of said money dispute.
Therefore, the evidence of motive, to our mind, is very weak. This, by
itself, is of no help to the appellants for the reason that in a criminal
case based upon ocular evidence, motive is not of much relevance. We
draw support from the judgment of the Supreme Court in the matter of
Thaman Kumar v. State of Union Territory of Chandigarh, (2003)
6 SCC 380, which is, inter alia, reproduced thus:
"18. .... There is no such principle or rule of law that where the
prosecution fails to prove the motive for commission of the crime, it
must necessarily result in acquittal of the accused. Where the ocular
evidence is found to be trustworthy and reliable and finds
corroboration from the medical evidence, a finding of guilt can safely
be recorded even if the motive for the commission of the crime has not
been proved. In State of H.P. v. Jeet Singh[(1999) 4 SCC 370] it was
held that no doubt it is a sound principle to remember that every
criminal act was done with a motive but its corollary is not that no
offence was committed if the prosecution failed to prove the precise
motive of the accused to commit it, as it is almost an impossibility for
the prosecution to unravel the full dimension of the mental disposition
of an offender towards the person whom he offended. In Nathuni
Yadav v. State of Bihar[(1998) 9 SCC 238] it was held that motive for
doing a criminal act is generally a difficult area for prosecution as one
cannot normally see into the mind of another. Motive is the emotion
which impels a man to do a particular act and such impelling cause
need not necessarily be proportionately grave to do grave crimes. It
was further held that many a murder have been committed without any
known or prominent motive and it is quite possible that the aforesaid
impelling factor would remain undiscoverable. In our opinion, in the
facts and circumstances of the case, the absence of any evidence on the
point of motive cannot have any such impact so as to discard the other
reliable evidence available on record which unerringly establishes the
guilt of the accused."
37. On careful perusal of the record, it transpires that PW2 Raj Kumar
has fully supported the case of prosecution and his presence at the
spot cannot be doubted for the reason that the complaint was recorded
on his statement within few hours of the occurrence. Further, his
clothes were stained with blood, which gives credence to his version
that he took the deceased to Walia Nursing Home in the TSR of Jugal
Kishore (PW11). Version of Raj Kumar is also supported by the
testimony of PW3 Rajender and PW11 Jugal Kishore. All these
witnesses have been cross-examined at length, but there is nothing
material in the cross-examination to provide reason for suspecting the
correctness of their version. Further from the testimony of PW21 SHO
Balbir Singh and PW12 Satpal, it is established on record that the
weapon of offence i.e. the dagger was recovered from the residence of
appellant Rakesh Kumar @ Raju at his instance. The dagger was blood
stained and as per serological report, the blood found on the dagger
was human blood of group B and it matched with the blood group of
the blood of the deceased. Thus, from the aforesaid evidence, we have
no doubt in our mind that the trial court has rightly convicted the
appellants.
38. It is submitted on behalf of the appellants Manvir Singh and
Mukesh that even if the prosecution story is taken to be true, then also
conviction of the aforesaid two appellants under Section 302 IPC with
the aid of Section 34 IPC is unwarranted. Dilating on the argument,
learned counsels submitted that as per the prosecution story, while the
deceased was going to Geeta Colony, he by chance came across the
appellants and their co-accused in front of House No. 54-A, Shastri
Nagar when the occurrence took place. Learned counsels contended
that from this, it is apparent that the incident took place by chance and
it is not the result of a pre-arranged plan amongst the appellants and
their co-accused to kill the deceased or to cause him dangerous
injuries. It is submitted that a pre-arranged plan or meeting of minds is
a sine qua non for invoking Section 34 IPC to hold a person vicariously
liable for the act committed by another, which obviously is missing in
this case. Therefore, the conviction of Manvir Singh and Mukesh under
Section 302 IPC with the aid of Section 34 IPC is unwarranted.
39. Section 34 of the Indian Penal Code is only a rule of evidence and
it does not create a substantive offence. It lays down a principle of
vicarious liability. When two or more persons join actively in an assault
on a third person, they are directly responsible for the injuries or harm
caused to the victim, if they had common intention to cause those
injuries or harm and the common intention amongst the accused
persons is to be gathered from the facts and circumstances of the
case. Before a person can be held liable for the act done by another
under the provisions of Section 34 IPC, it must be established that (a)
there was a common intention amongst the accused persons in the
sense of a pre-arranged plan between them and (b) the persons sought
to be so held liable had participated in some manner in the act
constituting the offence. Unless both the above ingredients are
present, vicarious liability for a criminal act committed by someone
else cannot be foisted upon the accused.
40. In the instant case, from the ocular evidence provided by the
complainant Raj Kumar (PW2), Rajender Kumar(PW3) and Jugal Kishore
(PW11), it is established on record that the appellant Mukesh Kumar
and the co-accused Manjeet caught hold of the deceased and
restrained him while the appellant Rakesh @ Raju inflicted multiple
stab injuries on the person of the deceased on the exhortation of the
appellant Manvir. From the aforesaid factual matrix, it can be safely
inferred that the appellants Manvir and Mukesh Kumar were nursing a
common intention with the appellant Rakesh to commit murder of the
deceased. As regards the contention that there could be no common
intention to kill the deceased as the incident in which the deceased
sustained fatal injuries is a chance occurrence, it is well settled that to
invoke Section 34 IPC, it is not essential to have a pre-arranged plan to
commit the offence, but the common intention can suddenly develop at
the spot. In the instant case, it is established that appellant Mukesh
along with Manjeet physically held and restrained the deceased,
whereas on the exhortation of the appellant Manvir, Rakesh who was
holding a knife, gave multiple stab injuries to the deceased. Thus, in
our considered view, learned Additional Sessions Judge has rightly
convicted the appellants Manvir and Mukesh Kumar for the offence of
murder of the deceased punishable under Section 302 IPC with the aid
of Section 34 IPC.
41. In view of the discussion above, we find that the appellants have
been rightly convicted by the learned Additional Sessions Judge.
Appeals are devoid of merit and they are accordingly dismissed.
42. Appellants are on bail. They be taken into custody to undergo the
remaining period of their sentence.
AJIT BHARIHOKE, J.
DECEMBER 24, 2010 A.K. SIKRI, J.
pst/ks
