Suresh Kumar & Ors. vs State
2010 Latest Caselaw 2463 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI
%                              Judgment delivered on: 7th May, 2010
+                    CRIMINAL APPEAL NO. 120 OF 1994


#      SURESH KUMAR & ORS.                              ...Appellants
!

                               versus


$      STATE                                          ...Respondent
^
Advocates who appeared in this case:
For the Appellants        : Mr. R.M. Tufail with Mr. Anwar Ahmed Khan
                            and Mr. Vishal Sehejpal, Advocates.
For the Respondent        : Mr. Sunil Sharma, APP.

       CORAM:
*      HON'BLE MR. JUSTICE BADAR DURREZ AHMED
       HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see
   the Judgment?(Yes)
2. To be referred to the Reporter or not?(Yes)
3. Whether the judgment should be reported in the digest?(Yes)


                         JUDGMENT

P.K.BHASIN,J:

This appeal was filed by three accused persons against the judgment

and order dated 30-04-1994 passed by the Additional Sessions Judge

whereby they were convicted under Section 302/34 IPC and one of them

was convicted under Section 324 IPC also and were awarded sentence of

life imprisonment for their conviction under Section 302/34 IPC. Accused

Suresh was additionally awarded one year‟s imprisonment for his

conviction under Section 324 IPC but the same was ordered to run

concurrently with his other sentence.

2. The appeal qua appellant no.1 Suresh, however, has abated since he

has died during the pendency of the appeal and so we have now to decide

the fate of the remaining two convicts, namely, Sunder Singh and Surat

Singh

3. The prosecution case regarding the murder of the deceased Surinder

is reflected in the first information statement of his brother-complainant

Inder Singh (PW-1) who claimed himself to be an eye witness of the

occurrence leading to the murder of his brother Surinder. Inder Singh had

stated before the police in his statement Ex. PW- 1/A that on 25.8.89 at

about 11.45 P.M. he was sleeping in his house no. 416, Saini Mohalla,

Nangloi when Madan Singh (PW-3), who was employed at his factory in

Laxmi Park, came to him and told that Suresh (the deceased accused) was

quarrelling with his brother Surinder (the deceased). On hearing that he

went to his cousin brother Ishwar(PW-18) who was residing in house No.

353, Saini Mohalla and woke him up and then they proceeded towards

Laxmi Park factory. When they took a turn from the gali towards factory

they saw that near the house of Suraj Bhan, Suresh (the deceased accused-

appellant no.1) was giving knife blows to his brother Surinder and

Suresh‟s brother Sunder Singh(appellant no.2 herein) and their cousin Surat

Singh(appellant no.3 herein) were telling Suresh „Maar sale ko, isne bada

gadar macha rakha hai‟. The complainant further stated that on his raising

hue and cry „bachao-bachao‟ these three persons ran away from the spot.

4. On the basis of the said statement of Inder Singh the police had

registered FIR under Section 307/34 IPC at 1.40 a.m. on 26/08/89. Since

the injured Surinder was declared as „brought dead‟ by the doctor at the St.

Stephen‟s Hospital the police converted the case into one under Section

302/34 IPC. The investigation commenced. During investigation the police

recorded the statement of PW-2 Satyawan who narrated about an incident

of fight which took place at a liquor party thrown by the deceased accused

Suresh at the house-cum-factory of the deceased Surinder in Laxmi Park

to celebrate the birth of his(Suresh‟s) nephew(son of accused Sunder). That

party was organized on the night of 26th August, 1989 sometime before the

above incident of stabbing narrated by Inder Singh and was attended by

PW-2 Satyawan, PW-6 Kulwant and the deceased Surinder. During that

party there was a quarrel between the deceased accused Suresh and PW-2

Satyawan and at that time the deceased Surinder had sided with Satyawan

and had also slapped Suresh. During that incident Satyawan was injured by

Suresh. Accused Suresh, Sunder and Surat were arrested and in due course

were charge-sheeted. Charge under Sections 302/34 IPC was framed

against all the three accused by the Sessions Court. Against the deceased

accused Suresh additional charge under Section 27 of the Arms Act was

also framed and in respect of the incident in which he had injured

Satyawan he was charged under Section 324 IPC also. All the accused had

pleaded not guilty and claimed trial.

5. Prosecution had sought to establish its case primarily on the strength

of evidence of PW-1 Inder Singh (complainant), PW-2 Satyawan, PW-3

Madan, PW-3 Kulwant Singh, PW-17 Bansi Lal, PW-18 Ishwar Singh and

PW-19 Jagdish. Out of these witnesses PW-1, PW-3 and PW-17 were

examined as eye witnesses. PW-17 had turned hostile while the other two

eye witnesses supported the prosecution during the trial and accepting their

evidence as truthful the learned trial Judge convicted and sentenced the

three accused as noticed already. Feeling aggrieved, this common appeal

was filed by the three convicted accused persons out of whom, as also

noticed already, one of them Suresh has died.

6. As far as the fact that the deceased Surinder died homicidal death,

which was sought to be established by the prosecution from the post-

mortem report Ex.PW-28/A, is concerned the same was not challenged

before us by Shri R.M.Tufail, learned counsel for the two surviving

appellants. His attack was on the veracity of the prosecution case as far as

the involvement of the two surviving appellants in the alleged incident of

stabbing of the deceased Surinder by the deceased accused Suresh is

concerned. It was argued that the testimony of the two eye witnesses of that

incident is highly doubtful and in any event accused Sunder Singh and

Surat Singh could not be held guilty for the offence of murder by having

recourse to Section 34 IPC.

7. In order to find out whether the submissions made on behalf of the

two surviving appellants have any merit we shall have to examine the

evidence of the material prosecution witnesses. We start with the evidence

of PW-2 Satyawan who was allegedly injured by the deceased accused

Suresh in the incident which had preceded the incident of stabbing in which

the deceased Surinder had received fatal stab injuries and which incident

created the motive part of the prosecution case. This is what this witness

deposed before the trial Court:

"On 25.8.89 Suresh accused present in the court gave us a liquor party on the occasion of kua-poojan ceremony in connection with the birth of a son to his brother Sunder, accused present in the court. Kulwant, Surender my cousin were also present in that party. That party was held in the factory of Surender at B-13, Laxmi Park. We reached that factory at about 9 p.m. Jasram and Madan workers of the factory were also present in the factory. While taking liquor, I uttered abuse to Suresh. Suresh slapped me. Surender took my side and gave 1 or 2 slaps to Suresh. Suresh was enraged and ran after me hurling abuses. I ran towards the village. At the plot of Imrat, 4-C, Laxmi Park, Suresh caught hold of me. He picked up a bottle which was lying near a water tank, broke the bottle at the water tank and hit me with the broken bottle on my neck. I fell down. Accused Suresh threw the bottle and ran away. Bansi helped me half a distance to my house and thereafter Suraj Bhan took me to Nav Jeewan, Paschim Vihar. I remained in the hospital for about 10- 15 days."

8. Now we come to the evidence of PW-3 Madan who was also present

in the factory of the deceased when the liquor party was going. This is what

he deposed before the trial Court in respect of the happenings at the party:

"On 25.8.89 I was employed in the factory of Indar Singh situated at B-13, Laxmi Park, Nangloi.

Surender, friend of my employer Inder, Suresh, Satyawan and Kulwant started taking liquor. After about 2 hours, while the party was still going on, they started hurling abuses and fighting. Thereafter I went to inform Inder at his house who

was sleeping at the roof of his house..........................................."

9. PW-6 Kulwant Singh is the other witness who was also enjoying

the liquor party on the night of the incident alongwith the accused and the

deceased Surinder. He is the cousin brother of Inder Singh and deceased

Surinder He deposed about the incident in the following manner:

" On 25.8.89 I had gone to the factory of my cousin Surinder at B-30 Laxmi Park to attend a party given by Suresh accused present in court since on account of birth of his nephew son of his brother Surinder Singh, accused present in the court. Myself, Satyavan, Suresh, Surinder and two employees of the factory Madan & Jas Ram attended the party at factory.................. While we were taking liquor after about half an hour/40 minutes of the staring of party, Satyawan, Suresh and Surinder grappled with each and abused each other. Suresh told Surinder why he thinks himself as a Dada and why he has threatened him and Surinder Singh to kill them, and he should desist from such action and shall not counter him, otherwise we will kill him. Thinking that liquor had gone to the head I left the place and went to sleep.

10. The evidence of PWs-2, 3 and 6 was not challenged before us by the

learned counsel for the two appellants. Obviously because nothing could be

elicited from them in cross-examination which could throw any doubt

about their truthfulness and secondly because these witnesses had not

involved accused-appellants Surat Singh and Sunder Singh in the incident

at the liquor party. As per the prosecution case these two accused were not

attending that liquor party. As far as the murder of the deceased Surinder is

concerned it was that incident at the liquor party at his factory premises, as

narrated by the injured Satyawan, in which he slapped the deceased

accused Suresh which infuriated Suresh and feeling humiliated he must

have decided to settle the score with Surinder. That incident, thus,

according to the prosecution constituted the motive for the murder of

Surinder.

11. Now, we proceed to the main incident which according to the case of

the prosecution was an off-shoot of the said liquor party incident and in

which the accused persons had fatally assaulted the deceased. However,

before we notice the evidence about that incident and the involvement of

the two surviving appellants-accused we would like to notice here that the

relations between the deceased and the accused persons were quite normal

before the incidents in question. In fact their relationship was quite cordial

as is evident from the fact that the deceased accused Suresh had organized

liquor party for his friends including the deceased not at his own place but

at the factory of the deceased Surinder to celebrate the birth of his nephew.

12. PW-1 Inder Singh is the brother of the deceased as well as the

complainant of the case. He is also an eye witness of the incident of

stabbing. The relevant part of his examination-in-chief is being re-produced

below:

"I am running a lathe-machine at my house, address given above. Surinder Singh was my younger brother.

On 25.8.89, at about 11.45 p.m., I was sleeping on the roof of my house. An employee of my factory named Madan Singh came to me and told that Suresh quarrelling with Surinder my brother. I woke up my cousin Ishwar who is also my neighbor and we two want towards the factory along with Madan. Opposite the house of Suraj Bhan, at the corner of Laxmi Park, I saw Suresh, accused present in the court, hitting my brother Surinder with knife. Sunder Singh elder brother of Suresh, present in the court, and Surat Singh, present in the court, who is

the cousin of accused Surinder, they were accosting Suresh to kill Surinder by saying that „Maar Sale Ko Bara Gadar Macha Rakha Hai". Suresh hit Surinder on his chest with the knife. Surinder fell down. Bansi Lal, lifted Surinder. I raised cries for help. I was a little behind.

All the three accused persons ran away towards Nihal Vihar.

Bansi Lal brought Surinder to our factory where Kulwant Singh and Roshan Lal also reached there. Roshan Lal and Kulwant took my brother Surinder to St. Stephens Hospital. I telephoned the police from the telephone of Jagdish, my neighbor.

13. PW-3 Madan, whose evidence in respect of the incident at the liquor

party has been noticed by us already had also deposed that when the fight

there started he had gone to inform PW-1 Inder, brother of Surinder about

the fight and then he went on to depose as to what he witnessed while

going towards the place of incident alongwith PW-1 and PW-17 Ishwar

(who however has not supported prosecution). This is what he deposed:

".....................I along with Inder and Ishwar, his cousin, started coming towards the factory.

Opposite the house of Suraj Bhan, I saw accused Suresh, present in the court, giving knife blows to Surinder. Surtey and Sunder Singh, present in the court, were asking Suresh to hit Surinder by saying "Mar Sale Ko Esney Bada Gadar Macha Rakha Hai".(observed, the witness has earlier said that Surtey and Sunder were asking Suresh "Mar Bahin Chod Ko, Esney Bada Gadar Macha Rakha Hai"). As soon as those words were uttered, Suresh hit Surender on his chest. Surender fell down on the ground. Inder raised cries for help. Bansi lifted Surender and brought him to the factory which was in the house. All the three accused persons ran away towards Nihal Vihar. Roshan Lal and Kulwant removed Surender to the hospital in a jeep...................................................."

14. Third eye witness PW-17 Ishwar, as noticed already, had turned

hostile. So, the prosecution had to rely upon the evidence of PWs 1 and 3

only and the trial Court has accepted their evidence in respect of the

incident of stabbing. The veracity of the evidence of PW-1 Inder Singh was

assailed by the leaned counsel for the appellants only and that too half

heartedly on the ground that his conduct at the time of the incident and

even after the accused had fled away from the spot was highly unnatural

inasmuch as he did not even go to the hospital with his injured brother and

allowed him to be taken to hospital by strangers. That unnatural conduct of

PW-1, according to Mr. Tufail, throws considerable doubt about his being

an eye witness of the incident. Evidence of PW-3 Madan was also

challenged half heartedly on the ground that he being the employee of the

deceased and PW-1 had deposed against the accused. The contention

which was, however, urged forcefully was that even if the evidence of the

two eye witnesses is accepted as it is the two appellants cannot be

convicted for the offence of murder with the aid of Section 34 IPC.

15. We, however, do not find any infirmity in the evidence of the two

eye witnesses. Nothing could be elicited from them in cross-examination

which could discredit them. Regarding the conduct of PW-1 Inder Singh

in not himself going to the hospital with his injured brother we find from

his cross-examination that on being asked in that regard he had stated that

when he had telephoned the police about the incident he was told by the

police to remain at home. PW-3 Madan had also given a clear narration of

the incident of stabbing and has fully corroborated the evidence of PW-1

Inder Singh on all material particulars. His evidence cannot be rejected

because of the fact that he was an employee in the factory of the deceased.

He had no reason to depose falsely against any of the accused and, in fact,

even PW-1 had no reason to depose falsely. Evidence of PW-1 is also

corroborated by PW-24 Jagdish from whose house he had informed the

police about the incident. This witness has also deposed that PW-1 had

come to his house to telephone the police and had informed him that his

brother Surinder had been stabbed by Suresh etc. We have already noticed

that this is not a case of the complainant and the accused party being on

inimical terms for any reason. So, we have also no hesitation in accepting

their evidence in respect of the incident of stabbing.

16. Now, we come to the contention raised on behalf of the two

appellants that they cannot be convicted for the murder of the deceased by

invoking Section 34 IPC against them since there is no circumstance

suggesting that they had shared common intention with the deceased

accused Suresh to kill Surinder simply by making the exhortations to

Suresh at the time of the incident as deposed to by PWs 1 and 3.

17. In " Idrish Bhai Daudbhai vs State of Gujarat", 2005 Criminal Law Journal

1422, the Supreme Court has held that " Exhortation, furthermore, by itself is

not sufficient enough to prove common intention on the part of an accused.".

In the said case the Supreme Court had observed that since the

prosecution has failed to bring any materials on record to show that there

had been any pre-concert or pre-arranged plan between the accused who

had stabbed the deceased and the accused who had exhorted the stabber by

uttering the words "beat ... beat..." and since it was also found that the

accused who had exhorted the co-accused after infliction of injuries,

benefit of doubt was given to the accused who had simply exhorted his co-

accused upon which the co-accused had actually stabbed the deceased.

18. Similarly, in " Parshuram Singh vs State of Bihar", (2002) 8 Supreme Court

Caes 16 it was observed by the Supreme Court that for convicting a person

merely on the basis of the oral statement made at the spot, the Court must

have other surrounding circumstances to ensure that the accused made such

an exhortation. These observations came to be made by the Supreme Court

on finding that the accused who had given exhortation to his co-accused

had not even used the lathi which he was carrying with him at the time of

incident and he had simply ordered the killing of the deceased and the

prosecution had not shown that he had any reason to get the deceased

killed. Therefore, that accused was ordered to be acquitted of the charge

under Section 302 read with Section 34 IPC.

19. And earlier in "Mithu Singh vs State of Punjab", 2001 Criminial Law

Journal 1820 the Supreme Court had observed that "An inference as to common

intention shall not be readily drawn; the culpable liability can arise only if such

inference can be drawn with a certain degree of assurance.".

20. We now come to the facts of the case in hand. In order to test

whether the case of the two accused-appellants case falls under Section 34

IPC or not the sequence of events preceding the stabbing incident and the

alleged exhortation by these two appellants has to be kept in mind.

Admittedly, it is not a case of pre-determined and planned common

intention of the three accused to kill Surinder. As noticed already, there

was an incident sometime before the main incident of stabbing in which, it

appears, the deceased Surinder, the deceased accused Suresh as well as the

injured PW-2 Satyawan had all got intoxicated after taking liquor and PW-

2 Satyawan had started abusing the deceased accused Suresh and the

deceased Surinder had at that time taken the side of Satyawan and had also

slapped Suresh. PW-1 Madan, an employee of the deceased Surinder, was

present in the factory when liquor party was going on and on seeing the

deceased, accused Suresh, the deceased and PW-2 Satyawan fighting under

the influence of liquor he rushed to inform PW-1 Inder Singh, the brother

of deceased Surinder who was living at a distance of about 1000 yards

from the factory of Surinder. As per the prosecution case, PW-2 Satyawan,

in order to avoid the fight taking an ugly turn had run away from the party

place but the deceased accused Suresh ran after him. It appears that the

deceased Surinder also must have followed them and in the meanwhile

someone must have informed accused Sunder Singh, brother of accused

Suresh and their cousin accused Surat Singh, who were also residing in

Saini Mohalla where PW-1 Inder Singh was living and so they also must

have reached the spot on getting the information about the fight involving

their brother. From the sequence of events emerging from the evidence of

witnesses whose evidence has been noticed by us it appears that the two

appellants on reaching the place of incident of stabbing and on seeing the

fight between the deceased accused Suresh and the deceased Surinder had

simply started taking the side of Suresh being their brother without any

intention to see to it that Surinder was killed and we say so because the

prosecution has not brought on record any circumstance like enmity etc.

between the two sides, from which it could be said that there was a reason

for the accused appellants to exhort their brother Suresh by saying "maar

sale ko" with the intention that Surinder was not left alive. Even though

these two accused-appellants had also uttered the words "isne bada gadar

macha rakha hai" (he has created lot of nuisance) while exhorting their co-

accused Suresh but the prosecution has not led any evidence to show as to

how Surinder was a nuisance for the accused persons. It is significant to

note that as per the post-mortem report the injury on the chest was the only

serious injury which had proved to be fatal and which as per the post-

mortem report Ex.PW-28/A, which was not challenged before us, was by

itself found to be sufficient to cause death in the ordinary course of nature

while other injuries noted in the post-mortem report were in the nature of a

scratch, bruise and lacerated wound. It is not very clear from the evidence

of PWs 1 and 3 whether the fatal blow on the chest of the deceased

Surinder with the knife was caused by the deceased accused Suresh after

his two co-accused Surat Singh and Sunder Singh had exhorted him by

saying "maar sale ko". PW-1 in his cross-examination had claimed that he

had informed the police that the deceased accused had inflicted knife injury

on the chest of deceased Surinder after the exhortation to him by Surat

Singh and Sunder Singh. However, when he was confronted with his

police statement Ex. PW-1/A it was not found recorded therein that

deceased Suresh had inflicted fatal knife injury on the chest of deceased

Surinder only after being exhorted by Sunder Singh and Surat Singh to do

so. Similarly though PW-3 had also claimed in chief-examination that fatal

knife blow on the chest of the deceased was struck by Suresh after the

exhortation by his co-accused persons but in cross-examination he stated

that when he had reached the spot Surinder had already received stab

injuries. So, all that can be attributed to the appellants Surat Singh and

Sunder Singh is the act of simple exhortation. Therefore, keeping in view

the already extracted views of the Supreme Court as to the culpability of an

accused who simply makes exhortation, we are of the view that the two

surviving appellants, namely, Surat Singh and Sunder Singh are entitled to

the benefit of doubt and resultantly to be acquitted of the charge under

Section 302/34 IPC.

21. This appeal, therefore, is allowed in so far as appellants Surat Singh

and Sunder Singh are concerned. The judgment of the learned Additional

Sessions Judge convicting them under Section 302/34 IPC and the order

dated 30th April 1994 sentencing them to undergo life imprisonment are set

aside and consequently both these accused stand acquitted. The sentence of

imprisonment awarded to them by the trial Court was suspended during the

pendency of the appeal and now that both of them stand acquitted, their

bail bonds stand discharged and they need not surrender now. The appeal

in respect of appellant Suresh, however, already stands abated because of

his death during the pendency of the appeal.

P.K.Bhasin, J

Badar Durrez Ahmed, J

May 07, 2010