Navjeet @ Prince & Ors. vs State
2010 Latest Caselaw 4522 Del

         THE HIGH COURT OF DELHI AT NEW DELHI
%                      Judgment Reserved on: 20.09.2010
                       Judgment Pronounced on: 27.09.2010

+            CRL.A. 542/2009

NAVJEET @ PRINCE & ORS.                      ..... Appellants


                             - versus -

STATE                                        ..... Respondent

Advocates who appeared in this case:

For the Appellants : Mr Avninder Singh For the Respondent : Mr Sanjay Lao, APP

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE V.K. JAIN

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 Digest? Yes

V.K. JAIN, J

1. This appeal is directed against the judgment dated

27th April, 2009 and Order on Sentence dated 30th April,

2009, whereby both the appellants were convicted under

section 302 and 307 of the Indian Penal Code (IPC) read

with section 34 thereof for committing murder of Sanjay

Sharma and attempting to commit murder of the informant

Sagar Sharma and were sentenced to imprisonment for life

and to pay fine of Rs.5,000/- or to undergo SI for 3 months

each in default under section 302/34 of the IPC. Identical

sentence was awarded to them under section 307 of the IPC

read with section 34 thereof.

2. The case of the prosecution, as disclosed in the FIR

registered on the statement of Sagar Sharma, nephew of the

deceased, is that a quarrel had taken place between the

informant Sagar Sharma and the appellant Navjeet on

payment of money for purchase of eggs by the informant on

2nd December, 2003. This is also the case of the

prosecution that on 3rd December, at about 11.15 p.m.

when the informant along with his uncle deceased Sanjay

Sharma was returning after attending a marriage reception,

the appellants who are brothers, stopped the motorcycle

being driven by the deceased, saying that they have been

searching him since the previous day, and would teach him

a lesson. This was followed by the appellants abusing him.

The informant was dragged from the motorcycle and the

appellant Tavinder gave knife blows on his left shoulder and

stomach. When deceased Sanjay Sharma tried to save him

the appellant Navjeet held him whereas Tavinder gave a

knife blow on his chest, as a result of which he fell on the

ground. Thereafter Tavinder gave a number of knife blows

to the deceased. In the meanwhile his uncle Babloo Sharma

and the younger brothers of the deceased, namely, Lalit

Sharma and Amit Sharma, who also were returning after

attending the same marriage reception, stopped there on

seeing them. When they raised alarm and rushed towards

them, the appellant Tavinder fled away along with his knife,

but, the appellant Navjeet was apprehended by Babloo and

Lalit Sharma. A number of persons from the public also

rushed there on hearing the alarm and Navjeet sustained

some minor injuries when he was overpowered by them. The

informant and Amit Sharma brought Sanjay Sharma to

S.D.N. Hospital where he was declared brought dead. The

murder as well as the attempt to commit his murder,

according to the informant, was actuated by a feeling to

take revenge for the incident which had taken place on 2nd

December, 2003.

3. The case of the prosecution against the appellants

is based on ocular as well as circumstantial evidence. The

ocular evidence comprises of the testimony of the informant

Sagar Sharma, his uncle Babloo Sharma and younger

brothers of the deceased, namely, Lalit Sharma and Amit

Sharma. The following circumstances were also alleged by

the prosecution against the appellants:

(a) There was a quarrel between the informant and the

appellant Navjeet which constituted motive for the

murder and the attempted murder;

(b) The appellant Navjeet was apprehended on the spot;

(c) An abrasion was found on the right side outer angle of

the right eye of the appellant Tavinder when he was

examined in the hospital on 5th December, 2005,

which indicates his involvement in the incident.

(d) The weapon used for committing the offence was

recovered concealed in a park pursuant to the

disclosure statement made by the appellant Tavinder;

(e) The knife recovered at the instance of the appellant

Tavinder was found stained with blood and it was

opined by the doctor that injuries to the deceased were

possible from that knife;

Ocular Evidence

4. The complainant Sagar Sharma came in the

witness box as PW-1 and stated that on 2nd December, 2003

at about 9:30 p.m. he gave a Fifty Rupee note to the

appellant Navjeet, who along with his brother and co-

appellant Tavinder used to sell eggs, towards payment of

four eggs. He, however, did not return the balance amount

and started abusing him. The appellant Tavinder also

abused him and pushed him. He then came back to his

house.

He further stated that on 3rd December, 2003 at

about 11:15 p.m., he along with Sanjay Sharma, was

returning on the motor cycle of Sanjay Sharma, after

attending the wedding reception of his neighbor Sonu, held

at Sanatam Dharam Shala Gali No.13, Shanti Mohalla.

When they reached near house No.3938, Gali No.13 of

Shanti Mohalla both the accused persons came in front of

their motor cycle which was stopped by Sanjay Sharma.

Navjeet caught hold of him(PW1) and dragged him from the

motorcycle saying that he had been searching him and

would teach him a lesson. He also started abusing him.

Tavinder gave a knife blow on his right chest and left

shoulder. When Sanjay Sharma tried to save him, Navjeet

caught hold of him (Sanjay Sharma) and Tavinder gave knife

blow on his chest as a result of which he fell down.

Tavinder then gave 5-6 blows to Sanjay Sharma. Jatinder

Sharma alias Babloo, Lalit Sharma and Amit Sharma also

reached there and caught hold of Navjeet, whereas Tavinder

ran away from the spot. He along with Amit Sharma took

Sanjay Sharma to S.D.N. Hospital, where he was declared

brought dead. He further stated that Navjeet also sustained

minor injuries when he was overpowered by Jitender

Sharma and Lalit Sharma. He also identified Exhibit P1 as

the knife which was used by Tavinder for causing injuries to

him and to his uncle deceased Sanjay Sharma.

5. PW-2 Jitender Sharma alias Babloo stated that on

3rd December, 2003 at about 11:20 p.m. when he was

coming back after attending the reception ceremony of his

friend Sonu held at Sanatam Dharam Shala Gali No.13,

Shanti Mohalla along with his two small children and

reached Gali No. 13, at Shanti Mohalla, he saw Tavinder

giving knife blows to Sanjay Sharma and Navjeet quarreling

Sagar Sharma. He, Lalit Sharma, and Amit Sharma asked

the accused persons as to why they were stabbing Sanjay

Sharma, Tavinder then ran away with knife in his hand

whereas Navjeet was apprehended by him with the help of

Lalit Sharma and some persons from the public who had

gathered on the spot. Police came to the spot and the

accused Navjeet was handed over to the police.

6. PW-3 Lalit Sharma stated that when he along with

Amit Sharma reached Gali No. 13 while returning from the

wedding reception on foot, he saw Tavinder giving knife

blows to Sanjay Sharma and Navjeet quarreling with Sagar

Sharma. When he cried and asked them as to why they

were beating Sanjay Sharma Tavinder ran away with knife

whereas Navjeet was apprehended by him and Jitender

Sharma. Amit Sharma and Sagar Sharma took Sanjay

Sharma to S.D.N. Hospital whereas Navjeet was handed

over to the police.

7. PW-5 Amit Sharma corroborated the deposition of

the informant Sagar Sharma and stated that when he

reached Gali No.13, Shanti Mohalla along with his brother

Lalit Sharma and PW-2 Jitender Sharma alias Babloo after

attending the wedding reception held at Shiv Mandir

Dharam Shala, Shanti Mohalla, he saw Navjeet holding his

brother Sanjay Sharma who was lying on the ground

whereas Tavinder was stabbing him with a knife. When

they cried and asked them not to beat their brother,

Tavinder ran away with knife. He chased him but on

account of darkness could not catch hold of him. He then

came back to the spot. In the meanwhile his brother Lalit

and Jitender had over powered Navjeet with the help of

some persons from the public. He and Sagar Sharma then

took Sanjay Sharma to S.D.N. Hospital, where he was

declared dead by the doctors.

8. In his statement under section 313 of the Code of

Civil Procedure the appellant Navjeet alias Prince admitted

that he used to sell eggs on a cart but denied that his

brother Tavinder was also selling eggs with him. He denied

the incident of 2nd December, 2003. As regards the incident

of 3rd December, 2003 he, while denying the case of the

prosecution against him, stated that he was beaten by the

deceased and several prosecution witnesses and not by the

public, when he was going to the police station for making

enquiry about their complaint. He further stated that after

giving beating to him they fled from the spot. He also stated

that Tavinder had gone to seek help when he was beaten by

the deceased and the prosecution witnesses. He claimed

that no one was injured by him and his brother.

9. The appellant Tavinder, however, admitted that he

along with his brother co-appellant Navjeet alias Prince

used to sell eggs at Shanti Mohalla on a cart. He, however,

denied the incident of 2nd December, 2003. He also denied

the case of the prosecution against him regarding the

incident which took place on 3rd December, 2003 and stated

that the deceased had suffered injuries somewhere else and

had implicated him and his brother in the case. He claimed

that his brother Navjeet was beaten by the deceased and

prosecution witnesses when they were going to the police

station to enquire about their complaint. He also claimed

that he had gone to seek help when his brother was beaten

by the deceased and the prosecution witnesses. He also

denied having caused injuries to the deceased or to any

other injured.

10. PW-14 Dr. N.K. Tangri who was posted as CMO in

S.D.N. Hospital, Shahdara on 4th December, 2003 examined

PW-1 Monu Sharma alias Sagar Sharma and found that he

had a clean incised wound right side lower part of chest 8

mm x 2 mm deep up to subcutaneous deep. He also found

5 cm long abrasion over left upper arm which was skin

deep. The injuries were noted by him on the MLC Exhibit

PW14/B.

11. The MLC of the informant Sagar Sharma coupled

with his deposition in the court leaves no doubt that he was

injured in the incident which took place in the night

intervening 3/4th December, 2003 at Shanti Mohalla. Being

injured, the informant is the best witness of the incident in

which injuries were caused to him and in the absence of

strong and compelling reasons, his testimony needs to be

believed since being one of the victims of the crime, he is

unlikely to spare the real culprit and implicate an innocent

person. He would rather be keen to ensure that the real

culprit does not go unpunished.

Though, in his statement under section 313 of

Cr.PC the appellant Tavinder claimed that the injuries by

the deceased and the prosecution witnesses were sustained

in some other incident, he did not tell the court as to what

that incident was, where it had taken place and who had

caused injuries to the deceased and to the informant Sagar

Sharma. There is absolutely no evidence of either the

deceased or the informant having sustained injuries in some

other incident. Therefore, we see no reason to disbelieve the

injured Sagar Sharma who categorically and unequivocally

stated that he was injured by the appellant Tavinder in the

course of the same incident in which injuries were caused

by him to the deceased Sanjay Sharma.

As held by the Supreme Court in a number of

cases including Machhi Singh vs State of Punjab 1983 Crl.

LJ 1457, Makan Jivan and Ors. vs State of Gujarat: AIR

1971 SC 1797; Mori Lal and Anr. vs State of U.P. AIR

1970 SC 1969; and Jamuna Chaudhary and Ors. vs State

of Bihar AIR 1974 SC 1822, the evidence of the injured

alone is sufficient to bring home the guilt of the accused,

even if the evidence of other witnesses is excluded from

consideration. Therefore, even if the testimony of PW-2

Jitender Sharma, PW-3 Lalit Sharma and PW-5 Amit

Sharma is excluded from consideration, the deposition of

injured Sagar Sharma by itself is sufficient to prove the

involvement of the appellants in the incident in which

deceased Sanjay Sharma lost his life and the informant was

injured.

12. A perusal of the MLC of the deceased Exhibit PW

14/A and the MLC of the informant Exhibit PW-14/B shows

that they were brought to the hospital by Amit Sharma s/o

Ravinder Kumar Sharma, who had been examined as PW-5

in this case. He has fully corroborated the deposition of the

informant from the stage he reached the spot. Since the

deceased was brought to S.D.N. Hospital by the informant

as well as PW-5 Amit Sharma as is evident from their MLC

besides their oral deposition, we see no reason to disbelieve

this witness. His testimony cannot be rejected merely

because he happens to be the brother of the deceased. In

fact, none of the appellants specifically claimed that this

witness was not present at all when the incident took place.

13. The testimony of PW-2 Jitender Sharma, PW-3

Lalit Sharma and PW-5 Amit Sharma was assailed by the

learned counsel for the appellants on the ground that being

relatives of the deceased they are interested witnesses and

since no independent eye witness was examined by the

Investigating Agency, their testimony should not form basis

of the conviction of the appellants. We find no merit in the

contention. Relationship of the witnesses with the deceased

does not by itself affect their credibility. A witness cannot

be said to be an interested witness merely because he

happens to be a relative of the victim of the crime. As

observed by Supreme Court in Ashok Kumar Chaudhary

vs State of Bihar 2008 Crl.L.J 2030, the term "interested"

postulates that the person concerned has some direct or

indirect interest in seeing that the accused is somehow or

the other convicted either, because he had some animus

with the accused or for some other oblique motive.

14. The only rule of caution the Court may adopt with

respect to such a witness is to scrutinize his evidence with

care and caution but, if on such scrutiny his evidence is

found to be reliable, probable and trustworthy, conviction

can be based even on the sole testimony of a witness who is

related to the victim of the crime. In this regard Supreme

Court in Dalip Singh vs State of Punjab 1954 SCR 145

inter alia observed as under:-

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that here is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."

Hence, the testimony of PW-2, PW-3 & PW-5 cannot

be discarded merely on account of their relationship with

the deceased, particularly when there is no evidence of any

of them having any kind of animus against the appellants or

harbouring any grudge against them.

15. It was contended by the learned counsel for the

appellants that the case of the appellants is covered by

Exception IV to Section 300 of IPC, since the stabbing was

preceded by a quarrel and happened in a heat of passion

generated during the quarrel. In support of his contention,

the learned counsel for the appellant has referred to the

decision of the Supreme Court in Satish Narayan Sawant

vs State of Goa JT 2009 (12) SC 224. In that case there

was a heated exchange of words between the appellant and

the deceased. Thereafter, the appellant and the other

accused gathered in a hall to assault the deceased, PW-1

and PW-8, who in order to avoid the assault, went to the

balcony. The appellant then brought a knife from the room

of his brother and stabbed the deceased, using that knife.

Only one main injury was caused to the deceased, other

injuries being superficial and that main injury was also

given on his back side. It was also noticed that there was

scuffle between the parties before the incident of stabbing

took place. It was held by Supreme Court that the appellant

could not be said to have any intention to kill or to inflict an

injury of a particular degree of seriousness. It was,

therefore, held that the case fell under Section 304 Part II of

IPC.

16. Exception IV

An accused is entitled to the benefit of exception IV to

section 300 of the Indian Penal Code, only if the act

committed by him satisfies the following conditions:

(i) It is committed without premeditation;

(ii) it is committed in a sudden fight; and

(iii) the act is committed in the heat of passion upon a

sudden quarrel, provided the offender does not take any

undue advantage and does not act in a cruel and unusual

manner.

17. All the above conditions must exist before this

exception is invoked. Even if one of the aforesaid conditions

is missing. The case of the accused cannot be brought

within the purview of this exception.

18. „Undue advantage‟ would mean an unfair

advantage. The nature of the weapon used by the accused

and the manner of attack made by him have a material

bearing while deciding whether the accused had taken an

undue advantage or not. If the nature of the fight does not

justify the use of weapon actually used by the accused, this

would clearly amount to taking undue advantage of the

victim and would take the case of the accused out of the

purview of Exception IV to section 300 of the Indian Penal

Code. After considering the facts and circumstances of the

case, including the nature of the quarrel between the

accused and the deceased, if it is found that use of the

weapon actually used by the accused was wholly unjustified

and unwarranted, that by itself may amount to acting in a

cruel manner and may deprive the accused of the benefit of

this exception.

19. In the case of Satish Narain (supra), initially the

appellant did not have any weapon with him and he lifted it

from the room of his mother during the course of the

quarrel, whereas in the case before us the appellant

Tavinder Singh was already armed with a knife when he met

the deceased and the informant. There could be no good

reason for the appellant Tavinder Singh to be carrying a

knife with him late in the night. According to the

appellants, they were going to the Police Station to enquire

about the complaint made by them, against the informant,

with respect to the incident of 2nd December 2003, when

they met him and the deceased on the way to the Police

Station. The plea taken by the appellants, however, is not

convincing at all. Ordinarily, one would not go to make an

enquiry of this nature past 11 „O‟ Clock in the night, when

very few police officials are expected to be available in the

Police Station. In any case, there could be no reason for the

appellant Tavinder to be carrying a knife with him while

going to the Police Station. The logical inference, therefore,

is that the appellants were at least prepared to cause injury

to the informant, using a knife for the purpose, when they

intercepted them in the night of 3rd December 2003.

Moreover, the appellant Tavinder first gave two knife blows

to the informant which was followed by giving one knife

blow to the deceased on his chest. He did not stop even

there and, despite the deceased having fallen on the ground

on receipt of the knife blow on his chest, and gave three

other knife blows to him, which clearly indicates an

intention to commit his murder by giving repeated knife

blows on vital parts of his body. The following stab wounds

were found on the body of the deceased when postmortem

was conducted by PW-13 Dr Akash Jhanjee:-

1. Incised penetrating wound 2.2 x 0.5 cms present over front of lower half left side chest 015 cm above the level of left heel, 12.2 cms below and inner to left nipple with margins clean cut. The upper and outer angle was rounded and lower inner angle was acute.

2. Incised punctured wound 1.2 x 0.5 cms present over back of lower half left side chest 8.2 cms below and inner to left scapula inferior angle, 3.8 cms to the

left of midline slightly obliquely placed with margins clean cut outer angle rounded and inner angle acute. Wound was muscle deep with depth of 0.4 cms.

3. Incised penetrating wound 2.3 x 0.6 cms present over back of lower half left side chest 3.2 cms below and inner to injury no. 2, almost near midline with outer angle acute and inner angle rounded.

4. Incise punctured wound 1.8 x 0.5 cms obliquely placed over back of upper half right side abdomen placed obliquely with margins clean cut 3 cm below and to the right of injury no. 3. Wound was muscle deep with depth of 0.5 cm.

The blade of the knife recovered by the police at the

instance of the appellant Tavinder Singh was found to be

about 11cm long. The depth of injury No. 1 was found to be

9.5cm whereas the depth of injury No. 3 was found to be

8.6cm. This clearly shows that full force was applied by the

appellant Tavinder while giving knife blows to the deceased,

inasmuch as almost whole of the blade was thrust in his

body. The injury No. 1 had cut through the skin,

subcutaneous tissues, inter costal muscle of eight left inter

costal muscle space, entered into left side chest cavity, then

cut through the anterior wall of pericardialsac, produced a

cut 0.5 cm in length over anterior wall of right ventricle and

ended in the cavity of the right ventricle. The third injury

cut through the skin, subcutaneous tissues, inter costal

muscle of seventh left inter costal muscle space, entered

into left side chest cavity then cut through the plural layer

of left lung lower lobe, then substance of lower lobe through

just above the lower border producing a cut in the left dome

of diaphragm and ended there, near its attachment with left

costal cage border.

20. In a recent decision in Singapagu Anjaiah vs.

State of Andhra Pradesh 2010 (6) SCALE 374, PW-1 S.

Ramulu was abused by one of the accused for which he was

admonished by the witness. He then assaulted the witness.

In the meanwhile, another accused, the appellant before the

Supreme Court, came from behind, held his head and threw

him down. Accused person then assaulted PW-1 to PW-5,

all of whom sustained various injures on their person. The

appellant before the Supreme Court then hit the deceased at

his head, with a crow bar causing serious injury. It was

contended on behalf of the appellant that even if the case of

the prosecution is accepted, the allegations proved against

the appellant made out, the case under Section 304 Part II

of IPC and, therefore, conviction of the appellant under

Section 302 of IPC was bad in law. Rejecting the contention,

Supreme Court observed that no one can enter into the

mind of the accused and his intention has to be gathered

from the weapon used, the part of the body chosen for the

assault and the nature of injury caused. Noticing that the

appellant had chosen a crow bar as the weapon of offence

and a vital part of the body, i.e., head for causing injury

which had caused multiple fractures of the skull and

indicated the force applied while using the weapon, the only

conclusion was that the appellant intended to cause death

of the deceased.

Considering the number of knife injuries given to

the deceased, even after he had fallen on the ground on

receiving the first stab injury, the force used while giving

knife blows and the vital part chosen by the appellant

Tavinder to give knife blows, we have no reasonable doubt

in our mind that his intention was to commit murder of the

deceased.

If the accused gives repeated knife blows at vital

blows of the body, using full force for the purpose, even

after the deceased has already fallen on the ground on

receiving the first injury, it cannot be said that the accused

did not take any undue advantage of the situation in which

the deceased was placed at that time and did not act in

cruel manner.

21. The learned counsel for the appellant has next

referred to the decision of the Supreme Court in Manubhai

vs State of Gujarat AIR 2007 SC 2437. In the case before

the Supreme Court the accused had used a knife causing

injury just below the stomach and the knife had gone 6cm

deep, which the Supreme Court found indicative of the fact

that blow was given with great force. It was noticed that the

deceased was trying to pacify the party and no role was

played by him in the exchange of words which was taking

place at the spot. The trial court convicted the appellant

under Section 304 Part I of IPC noticing that only one blow

was given to the deceased. The High Court, however,

altered the conviction of the appellant from Section 304 to

Section 302 of IPC. The appeal filed by the appellant was

dismissed and alteration of the conviction to Section 302 of

IPC was upheld by the Supreme Court. We fail to

appreciate how this judgment helps the appellant in any

manner. In fact this judgment rather goes against the

appellant since even in a case of single blow conviction

under Section 302 of IPC was upheld by the Supreme Court,

considering the force used by giving knife injury to the

deceased.

22. The learned counsel for the appellant has referred

to Imtiaz & Anr vs. State of U.P. 2007 Cri.L.J 1663. In

that case, the appellant, who was convicted under Section

302 of IPC, claimed benefit of Exception I to Section 300 of

IPC, claiming that the act was not premeditated and was

done in grave and sudden provocation given by the

deceased. While rejecting the plea, the Supreme Court

observed that for taking benefit of Section 300 of IPC it was

incumbent upon the accused to prove beyond doubt that

the complainant or his brother had abused or used any

provocative words sufficient to provoke reasonable person in

ordinary circumstances. It was also held that for claiming

exception a heavy burden lies upon the accused.

Dismissing the appeal filed by the appellant, his conviction

under Section 302 of IPC was maintained.

23. In order to bring the case within Exception I, the

following conditions must be complied with:

(i) The deceased must have given provocation to the accused;

(ii) The provocation must be grave;

(iii) The provocation must be sudden;

(iv) The offender, by reason of the said provocation, shall have been deprived of his power of self-control;

(v) He should have killed the deceased during the continuance of the deprivation of the power of self-control; and

(vi) The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident.

Another requirement of Exception I to Section 300

of IPC is that the provocation must have come from the

victim and if it comes from someone else, the Exception

does not apply and the accused cannot claim its benefit.

The provocation should be of such a decree that the person

who is given provocation ceased to be the master of his

understanding becomes incapable of cool reflection and lose

control over his passions.

24. In the case before us, the deceased Sanjay Sharma

did not give any provocation at all to either of the appellants

not to talk of a sudden and a grave provocation. He only

tried to save the informant, who was his nephew, when he

was attacked by the appellants. The case of the appellants

is that one of them, Navjeet was beaten by the deceased and

the PWs. They however do not say that the appellant

Tavinder gave knife blows to the informant as well as to the

deceased Sanjay Sharma on account of beatings given by

them to the appellant Navjeet. Their case is that the stab

injuries were sustained by the informant as well as by the

deceased elsewhere and they were not responsible for

causing those injuries. It is true that mere failure of an

accused to specifically set up a plea of sudden and grave

provocation will not come in the way of his getting the

benefit of the Exception, if it is otherwise attracted to the

facts and circumstances of the case, but, we find no

material on record from which it may be inferred that the

appellant were beaten by the informant and the deceased

before knife blows were given to them. The testimony of the

witnesses rather shows that the injuries by the appellant

Navjeet were sustained when he was overpowered by the

prosecution witnesses with the help of some person from

the public, who had gathered on the spot. While returning

from the wedding reception, the informant and the

deceased, would not be expecting to meet the appellants at

the place where this incident took place. Even if it is

presumed, as claimed by the appellant, that one of them

Navjeet was beaten by the informant and the deceased, that

did not in our mind constitute grave and sudden

provocation sufficient to deprive them of their power of self

control, to the extent of inflicting multiple injuries to the

deceased at vital parts of his body and that too using full

force for the purpose. A normal reasonable person, if given

beatings without use of any arm, is not likely to lose his

control to the extent that he would use a knife and that too

repeatedly and at vital parts of the body of the victim.

Therefore, no case of sudden and grave provocation within

the meaning of Exception I to Section 300 of IPC is made

out in the facts and circumstances of the case.

25. The learned counsel for the appellant has also

referred to Jagriti Devi vs State of H.P. Criminal Appeal

No. 823/2003 decided on 06.07.2009. In that case, there

was an altercation between the appellant and the deceased,

wherein the appellant was insulted and thereby provoked by

the deceased. Thereafter, the deceased took out a Khurki

kept under her pillow, with intent to assault the deceased.

Thereupon the assailant, in order to save herself, grappled

with the deceased and during that process, she also

received injuries. In these circumstances, it was held by

Supreme Court that it was a case falling under Section 304

Part II of IPC. However, in the case before us, the deceased

was not armed with any weapon. It was the appellant

Tavinder who was carrying the knife, which he used for

giving multiple stab injuries to him at vital parts of his

body. There is no evidence of any grappling between

appellant Tavinder and the deceased. In these

circumstances, the case of the appellant cannot be brought

within the purview of Exception I or IV to Section 300 of

IPC.

26. Pointing out the injuries sustained by the

appellants, it was contended by the learned counsel for the

appellants that since the prosecution has failed to explain

the injuries sustained by them, the version given by the

prosecution witnesses should not be believed. A perusal of

the MLC of the appellant Tavinder would show that he had

one scratch measuring 1 cm x 1 cm over left side of outer

angle of his left eye and a 4 cm long liner vertical abrasion

over right side outer angle of right eye. The MLC of the

appellant Navjeet was not filed by the prosecution along

with the charge sheet but was produced by DW 2

Superintendent, Jail No. 4 as a part of his medical record

available in the Jail Hospital. In fact, an application under

section 391 of Cr.PC has also been filed by the appellants

seeking permission to place on record some documents

including his MLC to show the injuries suffered by him

when he was beaten by the informant and the appellants in

the night of 3rd December, 2003. On a perusal of the

documents, we find that the appellant Navjeet had swelling

and tenderness on his right index finger and hand, swelling

on lower eyelid and adjacent region, swelling on right

parietal area of skull, mild swelling and tenderness on right

thigh and some bruises on his body.

27. In State of Gujarat Vs. Bai Fatima (1975) 2 SCC

7, the Supreme Court was of the view that:

"in a situation when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:

(i) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self- defence.

(ii) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

(iii) It does not affect the prosecution case at all."

The Supreme Court specifically held that there may be

cases where the non-explanation of injuries by the

prosecution may not affect the prosecution case. This

principle would apply to cases where the injuries sustained

by the accused are minor and superficial or where the

evidence is so clear and cogent, witnesses are independent

and disinterested, and their testimony is so probable,

consistent and creditworthy that it far outweighs the effect

of the omission on the part of the prosecution to explain the

injuries.

In State of Madhya Pradesh Vs. Sardar, 2001 (5)

AD (SC) 566, the Supreme Court held that where the

evidence is clear, cogent and creditworthy, a reasonable

inference which can be drawn is that the accused received

injuries during the course of occurrence and some members

of the prosecution party inflicted such injuries.

In Kashmir Lal & Others Vs. State of Punjab

1996 1 SCC 471, the Supreme Court held that a person who

is unlawfully attacked has every right to counteract and

attack his assailant and cause such injury as may be

necessary to ward off the apprehended danger or threat.

In Rajender Singh Vs. State of Bihar AIR 2000

SC 1779, the Supreme Court reiterated that ordinarily the

prosecution is not obliged to explain each injury on an

accused even though the injuries may have been caused in

the course of the occurrence, provided that the injuries are

minor in nature.

28. The following propositions of law emerge from

these cases:

a. The prosecution needs to explain the serious

injuries sustained by an accused in the course of the

some transaction in which he is alleged to have

committed the offence attributed to him. This applies

particularly to a murder case.

b. The prosecution is not bound to explain the

minor injuries, if any, sustained by an accused.

c. If the serious injuries sustained by an accused

in the course of some transaction are not explained by

the prosecution and a defence version is put up by the

accused and the injuries sustained by the accused are

compatible with the defence version, the court may

believe the defence version, giving benefit of doubt to

the accused.

d. Even if the prosecution fails to explain the

serious injury sustained by an accused, that by itself

will not result in the entire case of the prosecution

being rejected on this ground alone where the

testimonies of the witnesses is found to be

unambiguous, creditworthy and reliable and the court

is in a position to ascertain the true facts of the incident

by separating the chaff from the grain.

e. If the court, on analyzing the evidence

produced by the prosecution, finds that the accused

was the aggressor who went to the place of the

prosecution witness(s) and inflicted injuries to him,

right of private defence will not be available to the

accused who by going to the place of the prosecution

witness and attacking him had invited a counter-attack

on him.

29. Since the injuries sustained by the appellant

Navjeet were minor in nature, the only inference which can

be drawn in the facts and circumstances of this case is that

either he received them in the course of being overpowered

by prosecution witnesses and/or persons from the public

who gathered there on account of the alarm raised by the

witnesses, as claimed by the prosecution witnesses or they

were caused to him by the deceased and/or the informant,

in the process of counteracting and attacking them in order

to save themselves from him and his co-accused Tavinder.

As regards the injuries sustained by the appellant Tavinder

which again are very minor and superficial in nature, the

only inference which can be drawn in the facts and

circumstances of the case is that these injuries suffered by

him at the hands of the informant and/or the deceased, in

the process of they defending themselves from him and his

co-accused Navjeet. In any case, considering that the

injuries were minor and testimony of prosecution witnesses,

particularly, that by the informant and PW-5 Amit Sharma

who took the deceased to the hospital along with the

informant is found to be unambiguous, reliable and

trustworthy, no ground for discarding the version given by

them is made out. This is more so as no defence version

compatible with their injuries has been put forward by the

appellant who claim that no injuries were caused by either

of them to the informant Sagar Sharma and/or the

deceased Sanjay Sharma.

30. The learned counsel for the appellants in this

regard referred to Krishan and others vs. State of

Haryana (2006) 12 SCC 459; Shaikh Majid and Anr. vs.

State of Maharashtra and ors. (2008) 11 SCC 131;

Lakshmi Singh and others etc. vs. State of Bihar AIR

1976 SC 2263; and Cherlopalli Cheliminabi Saheb and

others vs. State of A.P. (2003) 2 SCC 571. Considering

the settled proposition of law as discussed by us, these

judgments do not help the appellants in any manner.

31. The learned counsel for the appellant has also

referred to State vs Sunil and Anr (2001) 1 SCC 652. In

that case, the blood stained knickers of the deceased were

seized by the police pursuant to a disclosure statement

made by the accused. No independent witness was,

however, joined in the seizure. The seizure of the Knickers

was assailed on the ground that it was not attested by any

independent witness. Rejecting the contention Supreme

Court inter alia observed as under:

"In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person "and signed by such witnesses"...

...But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the

Code..... Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by the independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the investigating officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The Court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth."

We fail to appreciate how this judgment helps the

appellants in any manner. In fact in the case before us,

the recovery of knife pursuant to the disclosure

statement made by the appellant Tavinder was attested

not only by the police officials but, also by the informant

Sagar Sharma @ Monu, who signed the seizure memo as

an attesting witness. When he came in the witness box

as PW-1, Sagar Sharma clearly stated that not only was

the disclosure statement was made by Tavinder in his

presence and bears his signature at point „A‟, the knife

concealed by him in the park, under the earth was also

recovered in his presence and the seizure memo of the

knife Ex PW 1/D bears his signature at point „A‟. Thus

we have evidence not only of police officials but, also of a

public witness as regards the disclosure statement made

by the appellant Tavinder and the recovery of the knife

pursuant to the disclosure statement made by him.

32. The learned counsel for the appellants has also

referred to Pandappa Hanumappa Hanamar and another

vs. State of Karnataka (1997) 10 SCC 197; Aagdish Narain

and another vs. State of U.P. AIR 1996 SC 3136; Tama @

Tamal Mal vs. State of West Bengal (2007) 10 SCC 493;

and Machhi Singh vs State of Punjab 1983 Crl. LJ 1457.

We have done through the judgments. We have not been

able to find any such proposition of law in any of these

cases which can be of any help to the appellants.

33. The ocular evidence produced by the prosecution

finds corroboration from recovery of the knife Exhibit P-1 at

the pointing out of the appellant Tavinder pursuant to the

disclosure statement made by him while in police custody.

In his statement to the police, to the extent it is admissible

in evidence, the appellant Tavinder stated that the knife was

thrown by him in Pratap Park, Kanti Nagar which he could

get recovered. This part of his statement is admissible in

evidence under section 27 of the Evidence Act, since

pursuant to this statement the police discovered the fact

that a knife was lying in Pratap Park, Kanti Nagar. PW-14

Dr. N.K. Tangri vide his opinion on MLC Exhibit PW 14/B

was of the view that the injuries to the informant Monu

alias Sagar Sharma could be caused by this weapon.

Similar opinion was given by PW-13 Dr. Akash Jhanjee with

respect to the injuries sustained by the deceased. A perusal

of the report of CFSL Exhibit PW 21/G would show that

human blood was found on the knife recovered by the

appellants.

34. Three possibilities arise from the statement made

by the appellant Tavinder to the police and consequent

recovery of knife by the police from the park. One

possibility is that he himself had concealed the knife in the

park. The second possibility is that he had seen someone

concealing the knife there. The third possibility is that

someone had informed him that the knife had been

concealed in the park. The appellant Tavinder did not tell

the Court as to how he had come to know that a knife had

been concealed in the park under the earth. Though the

park is a public place the knife was not lying in the open

and had been concealed under the earth. In these

circumstances, the inevitable inference is that the appellant

Tavinder himself had concealed the knife at the place from

where it was recovered by the police. There is no

explanation from the appellant for concealing a knife

stained with human blood, in a park. Considering the

ocular evidence produced by the prosecution and the

opinion of the doctors, the Court would be justified in

inferring that it was the same knife which was used by him

for causing injuries to the deceased and the informant.

Therefore, recovery of a blood stained knife at the instance

of the appellant Tavinder is an incriminating circumstance

which corroborates the ocular evidence produced by the

prosecution.

35. The injuries found on the person of the appellants,

though minor in nature, also corroborate the case of the

prosecution by showing that they were the persons involved

in the incident which resulted in murder of the deceased

and injuries to the informant. The quarrel between the

informant and the appellant Navjeet on 2nd December, 2003

is an admitted fact and is yet another circumstance

incriminating to the appellants. It is also an admitted case

that the appellant Navjeet was apprehended at the same

spot, where this incident took place, and was handed over

to police.

36. However, even if the circumstantial evidence is

excluded from consideration, the testimony of eye witnesses,

particularly that of the injured informant Sanjay Sharma

and PW-5 Amit Sharma, who took the deceased to the

hospital along with the informant is sufficient to prove that

it was the appellant Tavinder who had committed the

murder of deceased Sanjay Sharma.

37. As regards the charge under section 307 of the

IPC, we find that the informant Sagar Sharma had

sustained two injuries one of which was an abrasion over

left upper arm 5 cm long and skin deep, whereas the other

was a clean incised wound measuring 8 mm x 2 mm on the

right side of lower part of his chest. A perusal of his MLC

Exhibit PW 14/B would show that the injury sustained by

him was found to be simple. Considering the nature of the

injuries caused to him, we find it difficult to hold that the

appellants intended to commit his murder. Had that been

the intention, as in the case of the deceased, the knife blow

would have been given with substantial force and the

appellant Tavinder may not have stopped at giving one knife

blow to him. In our view, the appellants intended only to

cause injuries to him using a knife, which is a sharp edged

weapon and also an instrument of cutting and stabbing.

Hence, the charges under section 307 of IPC does not stand

established and the appellant Tavinder is liable to be

convicted only under section 324 of IPC for causing injuries

to the informant Monu alias Sagar Sharma.

38. Coming to the role of the appellant Navjeet, it is an

admitted case that no weapon was used by him either

against the deceased or against the informant. The

exhortation attributed to him is that he, while dragging the

informant from the motor cycle, said that he had been

searching him and would teach him a lesson. No intention

to commit murder either of the deceased or of the informant

is to be necessarily inferred from the statement attributed to

him, though it does disclose at least an intention to cause

injuries to him, with the knife which his brother and co-

appellant Tavinder was carrying with him at that time.

It has come in the deposition of the informant as

well as the PW 5 Amit Sharma that the appellant Navjeet

had held the deceased, when knife blows were given to him

by the appellant Tavinder. However, PW-2 Jitender Sharma

and PW-3 Lalit Sharma, both of whom are stated to be eye

witnesses to the stabbing of the deceased, clearly stated

that when they reached the spot, they found Tavinder giving

knife blow to Sanjay Sharma and Navjeet quarreling with

Sagar Sharma. These two eye witnesses, therefore, do not

support PW-1 Sagar Sharma and PW-5 Amit Sharma as

regards the role attributed by them to the appellant Navjeet,

at the time the deceased was stabbed by his co-appellant

Tavinder. Thus, if we go by the version given by PW-1 and

PW-5, the appellant Navjeet had held the deceased, when

fatal knife blows were given to him by the appellant

Tavinder, whereas if we go by the version given by the PW-2

Jitender and PW-3 Lalit Sharma, the appellant Navjeet was

found engaged in quarreling with the informant Sagar

Sharma, meaning thereby that he was not holding the

deceased when stab blows were given to him by the

appellant Tavinder. If two versions of the same incident are

given by the prosecution witnesses, one of which goes in

favour of the accused, the Court needs to give benefit of

doubt to the accused by accepting the version which is

favorable to him, unless it is shown that the version

favorable to him was improbable and the incident could not

have happened in the manner disclosed in that version.

Considering the simple nature of the lone stab injury found

on the person of the informant, he was in a position to

engage the appellant Navjeet even after having received that

injury. Therefore, the version given by PW-2 Jitender

Sharma and PW-3 Lalit Sharma cannot be said to be

inherently improbable and unacceptable. We, therefore, are

inclined to give benefit of doubt to the appellant Navjeet as

far as the charge under section 302 of IPC read with section

34 thereof is concerned.

However, in the facts and circumstances of this

case charge under section 324 of the IPC read with section

34 thereof stands duly proved against him since he shared a

common intention with the appellant Tavinder to cause

injuries to the informant, using the knife which his brother

Tavinder was carrying with him.

39. For the reasons given in the preceding paragraphs,

we maintain conviction of the appellant Tavinder under

section 302 of the IPC. His conviction under section 307 of

the IPC read with section 34 thereof is converted into

conviction under section 324 of the IPC read with section 34

thereof. The appellant Navjeet is acquitted of the charge

under section 302 of the IPC read with section 34 thereof.

His conviction under section 307 of IPC read with section 34

thereof is converted into conviction under section 324 read

with section 34 thereof.

40. Since the appellant Tavinder has been sentenced

to imprisonment for life and to pay fine of Rs. 5,000/- only,

we see no reason to interfere with the sentence awarded to

him under section 302 of the IPC. Both the appellants are

sentenced to undergo imprisonment for three years each

and to pay fine of Rs.5,000/- each or to undergo simple

imprisonment for three months each in default under

section 324 of the IPC read with section 34 thereof.

The appeal stands disposed of accordingly.

(V.K. JAIN) JUDGE

(BADAR DURREZ AHMED) JUDGE SEPTEMBER 27, 2010 RS/Ag