Delhi High Court
Sripal vs State on 25 April, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 25th March, 2011
Date of Decision: 25th April, 2011
+ CRL. A. 01/1998
SRIPAL ...APPELLANT
Through: Mr. Gauri Shankar Sharma, Advocate with
Appellant in person.
Versus
STATE ...RESPONDENT
Through: Mr. Lovkesh Sawhney, APP for the State.
AND
+ CRL. A. 456/1997
MAHESH ...APPELLANT
Through: Mr. Gauri Shankar Sharma, Advocate with
Appellant in person.
Versus
STATE ...RESPONDENT
Through: Mr. Lovkesh Sawhney, APP for the State.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE G.P.MITTAL
1. Whether reporters of local papers may be
allowed to see the Order? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Order should be reported
in the Digest? Yes
JUDGMENT
G.P. MITTAL, J.
1. Appellants Sripal and Mahesh along with one Ramesh (Juvenile) are
accused (hereinafter accused party) of committing murder of Ajay and
Anil and causing injuries on the person of Kalawati (PW8) (hereinafter
complainant party) with such intention and knowledge that if she had died
they would have been guilty of murder. By the impugned order the
appellants were held guilty for the offence punishable under Sections 302
and 307 read with Section 34 of Indian Penal Code (IPC) and were
sentenced to undergo imprisonment for life and to pay a fine of ` 3,000
each or in default of payment of fine to further undergo rigorous
imprisonment (RI) for three months each for the offence punishable under
Sections 302/34 IPC. They were further sentenced to undergo Rigorous
Imprisonment for two years each and pay a fine of ` 2,000 each or in
default of payment of fine to further undergo RI for 15 days each. The
sentences were to run concurrently.
2. Feeling aggrieved the two Appellants have approached this Court by way
of two separate Appeals.
3. Briefly stated, the case of prosecution is this. The deceased Ajay andAnil,
PW3 Deepak Kumar, PW-8 Kalawati and Ram Das, father of Deepak
Kumar are residents of House No.A-42/4, Hardevpuri. The Appellants
and the members of their family were also residents of the same area. A
plot of land opposite the complainant party‟s house was vacant. 20/25
days before the occurrence, the accused party started a factory for
manufacturing aluminum utensils. According to the prosecution, there was
use of acids and chemicals in the utensil‟s production. As a result thereof,
there used to be emission of toxic and foul smell. The complainant party
had been making grievance in this regard to the accused party.
4. The deceased‟s father requested the Appellants to install a chimney in
their factory to obviate the fumes and foul smell reaching the complainant
party‟s house; the accused party did not bother to install the said Chimney.
On the other hand, the appellants quarreled with the deceased and their
father whenever the issue was raised.
5. According to the prosecution Ram Das(father of the deceased and PW-3)
was in service in Naya Bazaar. He used to leave for work at about 7:30
AM and would return at about 10:30 PM. The deceased also used to leave
for their work at 8:00 AM and would return at 8/9 PM.
6. It is alleged that on the evening of 16.10.1992 Deepak (PW-3) returned
from the school at about 6:30 PM. Appellant Sripal and his two sons
hurled abuses at Deepak (PW-3) and Kalawati (PW-8) and threatened to
kill them when the issue of fumes and foul smell was raised. According to
the prosecution, the Appellants used derogatory language stating, "Tum
Haram Ke Bij Hamari Factory Ke Duhven ke liye Kehte Ho. Hum Tumhe
Jaan Se Maar Denge". Out of fear PW-3 and PW-8 returned home. On
17.10.1992 at about 6:30 AM deceased‟s and Deepak‟s father left for
work. At about 7:30 AM, Anil and Ajay took up the issue of the fumes
and foul smell with the Appellants and Ramesh (juvenile). They (Ajay
and Anil) requested the Appellants to make some arrangement to
minimize the ill effects of fumes failing which they (the complainant
party) would lodge a police report. Appellant Sripal got enraged and
exclaimed that they (complainant party) would be able to lodge a report
only if they are permitted to leave the place. Appellant Sripal and Ramesh
(Juvenile), armed with knives, Appellant Mahesh armed with hammer and
one of the Appellant‟s servant armed with Saria came out of the factory
and pounced on Ajay, Anil and Deepak exclaiming "Aaj Tumahara Kaam
Nipta Detey Hain". The Appellant Mahesh caught hold of Anil, their
servant caught hold of Ajay and Deepak, whereas Ramesh (Juvenile) and
Appellant Sripal started inflicting knife blows on the person of Anil. Ajay
got himself freed from the grip of the servant. Ramesh, however,
overpowered him at a distance of 8/10 paces and inflicted several knife
blows. Deepak Kumar (PW-3) raised an alarm and got himself freed.
7. On hearing the noise Kalawati (PW-8) came out of her house and
intervened to save the deceased. Thereupon, Appellant Sripal attacked
Kalawati with the knife. Deepak Kumar (PW-3) ran from the spot and hid
himself in a house. In the meanwhile a crowd gathered. Deepak also came
out of the hiding and noticed Appellant Mahesh and Ramesh (Juvenile)
being beaten by the persons of the public. Ajay, Anil and Kalawati were
removed to GTB Hospital. Deepak (PW-3) also reached the Hospital.
8. On receipt of DD No.2A (Ex. PW-19/A) Inspector Kanwar Singh PW-19
(IO) reached the spot. He was informed that the injured had been removed
to the Hospital. Since, no eye witness was available at the spot the IO
proceeded to GTB Hospital while leaving some police staff at the spot.
The IO came to know that Ajay and Anil were declared "brought dead" in
the Hospital while injured Kalawati was in the Operation Theatre. He met
Deepak and recorded his statement Ex.PW-3/A and made endorsement
Ex.PW-13/A on the basis of which formal FIR Ex. PW-5/B was recorded
in Police Station Nand Nagri. The IO returned to the spot along with
Deepak (PW-3). He prepared the site plan Ex.PW-19/P on Deepak‟s
instance; got the scene of incident photographed, lifted blood from four
places and seized it by Memo Ex. PW-18/A. After sealing the bottle with
the seal of „KS‟, the inquest proceedings were held in respect of the dead
body of Ajay and Anil and the dead bodies were sent to the mortuary with
a request to the doctor to conduct the post-mortem examination. The
inquest papers and brief facts were handed over to the doctor on
18.10.1992. Appellant Mahesh and Ramesh (Juvenile) were found to be
admitted in the Hospital. MLC Ex.PW-19/G of Appellant Mahesh was
received by the IO. Appellant Mahesh was interrogated on 19.10.1992
after he was declared fit to make the statement.
9. Appellant Mahesh made a disclosure statement Ex.PW-5/B. There was,
however, no discovery in pursuance of that statement. Accused Ramesh
(Juvenile) made a disclosure statement Ex.PW-19/H and pursuant to it a
dagger Ex.PW-14/1 was recovered. Appellant Sripal was arrested by SI
Laxmi Chand. Dagger Ex.PW-14/1 was shown to Dr. Anil Kohli, seeking
his opinion with regard to the injuries found on the person of deceased
Ajay and Anil. The IO collected CFSL reports Ex.PW-19/K and Ex.PW-
19/L in respect of the clothes of the two deceased and the blood / blood
stained earth lifted from the spot.
10. After completion of the investigation a charge sheet under Section 173
Cr.P.C. was filed against the Appellants.
11. In support of its case, the prosecution examined 22 witnesses. PW-3
Deepak, PW-8 Kalawati, PW-14 Dr. Anil Kohli, PW-18 SI Brijesh Kumar
and PW-19 Inspector Kanwar Singh (IO) are the important and material
prosecution witnesses.
12. PW-3 who is the author of the FIR corroborated the prosecution version as
given in the FIR. He deposed that there was a factory for manufacturing of
aluminum utensils belonging to the Appellants. There was use of acids for
utensils‟ production which led to emission of foul smell and smoke. There
were three servants working with the Appellants. He testified that since
they had difficulty on account of the smell and fumes, a complaint was
made to the Appellants. They requested the Appellants to install a
Chimney in the factory. The Appellants instead of installing a Chimney
used to quarrel with them.
13. He further deposed that on 16.10.1992, he returned from his school at 6:30
P.M. There was an altercation and exchange of hot words between the
Appellants (and the Juvenile) on the one hand and his mother (PW-8) and
him on the other. The Appellants threatened to kill them and used foul
language towards them. On account of fear of the Appellants, they
returned to their house.
14. On 17.10.1992 his (PW-3) father left for work at 6:30 A.M. At about 7:30
A.M. they (PW-3 and the two deceased) again made a complaint to the
Appellants about the foul smell emanating from their factory. They (PW-
3 and two deceased) also informed the Appellants that they would lodge a
complaint against them (the accused party, if they did not install a
Chimney) to the police. The Appellants‟ servant, whose name the witness
did not know, took out a pointed iron rod; Appellant Sripal armed with a
knife, accused Ramesh (Juvenile) also armed with a knife and Appellant
Mahesh armed with a Dagger came out. The servant caught hold of PW-3
whereas the Juvenile stabbed his brother Ajay with a knife. The servant of
Appellant Sripal caught hold of his brother Ajay and Appellant Sripal
inflicted knife blows on his brother Anil. Appellant Mahesh hit his
brother Ajay with a hammer. In order to save himself, Ajay freed himself
and tried to run away. Appellant Mahesh caught hold of him (PW-3)
whereas Juvenile Ramesh caught hold of Ajay by chasing him for a
distance of about 8-10 steps. He (Ramesh) repeatedly inflicted knife
blows on the person of Ajay. On hearing an alarm, his mother reached the
spot in order to save them and Appellant Sripal stabbed his mother with
knife. He (PW-3) ran from the spot and hid to save himself and later
returned to the spot. He came to know that his brothers and his mother
have been removed to GTB hospital. He also reached the hospital and
came to know that his two brothers had been declared brought dead. He
identified his statement Ex.PW-3/A made to the IO. He also identified the
under garments of the deceased.
15. To the same effect is the testimony of PW-8 Kalawati.
16. PW-14 Dr. Anil Kohli testified that on 18.10.1992 at about 10:15 A.M. he
conducted postmortem examination on the dead body of deceased Anil
and proved the postmortem report No.369/1992 Ex.PW-14/A. He found
as many as 14 serious injuries on the person of deceased Anil. Most of
which were incised wounds inflicted by a sharp object. PW-14 opined the
cause of death to be shock due to hemorrhage produced by multiple ante
mortem injuries caused by a sharp edged weapon. He further opined that
injuries No. 1, 4 and 10 collectively as also independent of each other
were sufficient to cause death in the ordinary course of nature.
17. On that very day at 11:30 A.M., PW-14 conducted autopsy on the dead
body of Ajay and proved the post mortem report Ex.PW-14/B. In case of
Ajay PW-14 found 15 injuries; most of which again were incised wounds
caused by a sharp object. The doctor opined the cause of death to be
shock due to hemorrhage produced by multiple ante-mortem injuries. He
opined that injuries No.3, 4, 7 and 8 collectively as well as independent of
each other were sufficient to cause death in the ordinary course of nature.
18. PW-18 had accompanied Inspector Kanwar Singh, the then SHO of Police
Station Nand Nagri to Gali No.4 Hardev Puri on 17.10.1992 on receipt of
information regarding the incident of stabbing by DD No.2-A. They came
to know that the injured had already been removed to GTB Hospital.
Inspector Kanwar Singh while leaving SI Brijesh Kumar at the spot
proceeded to GTB Hospital. He deposed about lifting of the blood from
various places in Gali No.4, Hardev Puri by the IO, it‟s sealing with the
seal of „KS‟ and its seizure by memo Ex.PW-18/A.
19. PW-19 Inspector Kanwar Singh, the then SHO Police Station Nand Nagri
deposed about his visit to the spot, to GTB Hospital, recording of
statement of Deepak, and completion of various other formalities during
investigation of the case.
20. On close of the prosecution evidence, the Appellants were examined under
Section 313 Cr.P.C. in order to enable them to explain the incriminating
evidence appearing in the trial. The Appellants took the plea that there was
delay in recording of the FIR. The FIR was recorded after a lot of
deliberations and that is why the special report could be delivered to the
Illaqa Magistrate only at 8:30 P.M. They pleaded innocence and false
implication.
21. The Appellant Sripal took an additional plea that he was not even present
at the spot as he had gone to see his sister at Ghaziabad who was not
keeping good health. The Appellants admitted that aluminum factory was
started by them but stated that there was no emission of foul smell or
smoke as they had installed a Chimney of 10-12 feet inside their house.
22. The Appellants examined five witnesses in their defence in order to show
that Sripal was not present on the date of the incident and that the incident
had not taken place in the manner as alleged by the prosecution. The
Appellants also summoned MHC (R) who produced two copies of the FIR
out of which one was received by the learned Metropolitan Magistrate on
17.10.1992 at 8:20 P.M. which was purported to have been received by the
learned Illaqa Magistrate on 17.10.1992 at 4:30 P.M.
23. By the impugned judgment, the learned Additional Sessions Judge (ASJ)
repelled the contentions raised on behalf of the Appellants that there was a
delay in recording the FIR resulting into an introduction of coloured
version; that the Appellants were not involved in the incident or that
Appellant Sripal was not present at the spot. He convicted the Appellants
under Section 302 and 324 read with Section 34 of the IPC as stated
earlier.
24. Feeling aggrieved, the two Appellants have approached this Court by
these two appeals.
25. We have heard Mr. Gauri Shankar Sharma, learned counsel for the
Appellants and Mr. Lovkesh Sawhney, learned Additional Public
Prosecutor (APP) for the State.
26. It is argued by the learned counsel for the Appellants that the FIR is
purported to have been recorded at 10:05 A.M. on 17.10.1992, yet the
copy of the FIR Ex.DW-5/A was received by the Illaqa Magistrate only at
8:20 P.M. This shows that the FIR was ante-timed. It is contended that the
injuries were inflicted on the person of Appellant Mahesh and Juvenile
Ramesh by the complainant party and it were the Appellants‟ servants
who got enraged on seeing their Masters being beaten that they caused
injuries on the person of the deceased and Kalawati. The prosecution has
failed to establish any motive on the part of the Appellants to cause
injuries on the person of the deceased and Kalawati. The incident,
according to the prosecution version, had taken place in broad daylight at
7:30 A.M., yet, no independent witness has been produced in support of
the case which coupled with the delay in recording the FIR would cast
serious doubt on the credibility of the two relation witnesses, who are
interested in the success of the case.
27. On the other hand, it is contended on behalf of the State that there is
absolutely no delay in recording the FIR. If a Special Report is received
late by the Illaqa Magistrate that would not mean that the FIR was not
recorded in time. There was consistent dispute between the two families
on the installation of Chimney in the factory and thus, there was a strong
motive for the Appellants to teach the complainant party a lesson. It is
submitted that the presence of the Appellants and their role in inflicting
the injuries was clearly established from the testimony of the two eye
witnesses. PW-8 Kalawati sustained injuries in the incident and is,
therefore, the most reliable witness. It is argued that a relation witness
would never leave the real culprit and implicate any person falsely.
DELAY IN LODGING THE FIR
28. According to PW-19 Inspector Kanwar Singh, statement of PW-3 Deepak
was recorded in GTB hospital at about 9:30 A.M. and the rukka Ex.PW-
13/A was sent to the Police Station for registration of the case at about
9:55 A.M.
29. The testimony of DW-5 Vijay Kumar, Ahlmad in the Court of learned
Metropolitan Magistrate, Shahdara, that the copy of FIR No.385/1992,
Police Station Nand Nagri bore endorsement of the Metropolitan
Magistrate and the time of receipt of the FIR is mentioned as 8:20 P.M. on
17.10.1992, was not challenged during cross-examination. Photocopy of
the FIR purported to have been received by the Illaqa Magistrate was
proved as Ex.DW-5/B.
30. It is argued by the learned APP that merely because the special report is
received late by the Illaqa Magistrate, no inference can be drawn that the
FIR was ante-timed. No suggestion was given to the IO Inspector Kanwar
Singh that rukka was not sent at 9:55 A.M. or that the FIR was ante-timed.
31. In order to prove the recording of the FIR and sending it to the learned
Metropolitan Magistrate, the prosecution examined PW-13 ASI Harkesh
Singh who was posted as Duty Officer in Police Station Nand Nagri on
17.10.1992 from 8:00 A.M. to 4:00 P.M. This witness testified that rukka
Ex.PW-13/A was received by him from Inspector Kanwar Singh at 10:05
A.M. through Constable Lila Ram; he thereupon recorded FIR
No.385/1992 and proved the same as Ex.PW-13/B. He deposed that the
copy of the special report was sent immediately after recording the FIR to
the Senior Officers and the area Magistrate through special messenger.
DD No.6-A was also recorded simultaneously at the time of recording of
this FIR to incorporate the substance. The testimony of this witness that
the FIR was registered at 10:05 A.M. was not challenged by in cross-
examination. The fact that the copy of the special report was dispatched to
the Illaqa Magistrate immediately after recording the FIR was also not
challenged.
32. The learned counsel for the Appellants submitted that an application under
Section 311 of the Code of Criminal Procedure (Cr.P.C.) was moved by
the Appellants on 26.05.1997 for recalling of PWs 13, 19 and 20 for their
cross-examination. The said application, however, was not disposed of by
the Trial Court and, therefore, it cannot be said that the testimonies of
PWs 13 and 19 were not challenged in cross-examination.
33. We have perused the Trial Court record. It seems that an application
under Section 311 Cr.P.C. was moved before the Reader of the Court after
the case was adjourned as the next date of hearing on the said application
has been mentioned as 26.06.1997. A perusal of the orders dated
26.06.1997 and thereafter till the passing of the impugned judgment show
the application was never pressed on behalf of the Appellants. In fact,
there was not even a mention at any point of time before the learned ASJ
that any such application was presented after the case was adjourned on
26.05.1997 for the next date. Thus, we are of the view that the application
was never pressed on behalf of the Appellants and the Appellants cannot
be permitted to raise a plea that the application moved for recalling of
PWs 13, 19 and 20 was not disposed of by the learned ASJ.
34. Thus, it is established that the testimony of PW-13 regarding receipt of
rukka at 10:05 A.M. and recording of the FIR immediately was not
challenged by the Appellants nor was any suggestion given to the IO
(PW-19) that the rukka was not sent at 9:55 A.M. nor that the FIR was
ante-timed.
35. In State of H.P. v. Gian Chand, 2001 (6) SCC 71, the three Judges Bench
of the Supreme Court observed that delay in lodging the FIR cannot be
used as a ritualistic formula for doubting the prosecution case and
discarding the same solely on the ground of delay in lodging the first
information report. Delay has the effect of putting the court on its guard
to search if any explanation has been offered for the delay, and if offered,
whether it is satisfactory or not. If the prosecution fails to satisfactorily
explain the delay and consequently, there is a possibility of embellishment
in the prosecution version, the delay would be fatal to the prosecution.
However, if the delay is explained to the satisfaction of the court, it
cannot, by itself be a ground for disbelieving and discarding the entire
prosecution case.
36. The Courts insist on spontaneous recording of the FIR so as to dispel the
possibility of introduction of any coloured version, embellishment or
introduction of a false witness or an accused.
37. In this case, apart from the testimony of PW-3 Deepak, on whose
statement, the FIR was recorded; PW-8 Kalawati is an injured and a
natural witness who has testified to all the essential facts, pertaining to the
attack by the Appellants. We would deal with the version and the
testimonies of PW-3 and PW-8 a little later, yet we are convinced that
both these witnesses are credible and trustworthy and there is no
possibility of introduction of any coloured version and thus, the time of
recording of the FIR otherwise loses significance.
38. In Balram Singh & Anr. v. State of Punjab, 2003 (11) SCC 286, it was
observed by the Supreme Court that if the ocular evidence adduced by the
prosecution is worthy of acceptance the element of delay in registering the
FIR/complaint or sending the same to the jurisdictional Magistrate by
itself would not in any manner weaken the prosecution case.
39. Thus, we are of the opinion that there was no delay in lodging the FIR and
the delay, if any, is not material in the circumstances.
40. It is argued that PW 3 and 8 are the brother and mother of the two
deceased respectively and, therefore; it would be highly unsafe to rely
upon their testimonies in the absence of any corroboration from any
independent witness. It is contended that according to the prosecution, the
incident had taken place at 7:30 A.M.; PW-3 hid himself in order to
establish the attack and came out only when he saw presence of the public
(who were giving beatings to the Appellants).
41. It is true that even if the entire incident was not witnessed by the members
of the public, they did gather either towards the end of the incident or
immediately after the incident. It was, therefore, expected of the
Investigating Officer to have joined some public witnesses to testify to the
facts on the later part of the incident or immediately after the incident.
However, no public witness was joined. It may be noticed that IO was not
cross-examined as to the reasons for non-joining of independent witnesses.
Unfortunately, in our country, persons of the public, particularly, the
neighbours prefer to remain neutral and are not willing to testify against a
neighbour.
42. In State of A.P. vs. S. Rayappa and Ors., (2006) 4 SCC 512, the Supreme
Court commented upon the reasons for reluctance of the public persons to
join as witnesses in criminal cases. In para 7 of the report, it was observed
as under:-
"7. On the contrary it has now almost become a fashion
that the public is reluctant to appear and depose before the
Court especially in criminal case because of varied
reasons. Criminal cases are kept dragging for years to
come and the witnesses are a harassed lot. They are being
threatened, intimidated and at the top of all they are
subjected to lengthy cross-examination. In such a
situation, the only natural witness available to the
prosecution would be the relative witness. The relative
witness is not necessarily an interested witness. On the
other hand, being a close relation to the deceased they will
try to prosecute the real culprit by stating the truth. There
is no reason as to why a close relative will implicate and
depose falsely against somebody and screen the real culprit
to escape unpunished. The only requirement is that the
testimony of the relative witnesses should be examined
cautiously. The High Court has brushed aside the testimony
of PW.1 and PW.2 on the sole ground that they are
interested witnesses being relatives of the deceased."
43. Therefore, no adverse inference can be drawn against the prosecution for
non-joining of any independent witness from the locality.
44. In S. Rayappa and Ors. (supra) it was also observed that relative witnesses
cannot be termed as interested witnesses. The term „interested‟ postulate
that the person concerned must have some direct interest in seeing the
accused persons being convicted somehow or the other either because of
any animosity or some other reasons. Yet, the Court has to be on its guard
while scrutinizing the evidence of the relation witness.
45. PW-8 Kalawati is not a witness to the initial part of the incident. She
testified that about four years ago (the statement of this witness was
recorded on 30.10.1996 and the incident had taken place on 17.10.1992)
her three sons (Anil, Ajay and Deepak) felt disturbed on account of the
smoke coming from the factory of the Appellants. They went outside to
complain to Sripal. On hearing the noise, she came out of her house and
saw that Appellant Mahesh had caught hold of her elder son Anil and the
Appellant Sripal and Ramesh (juvenile) were inflicting knife blows on
Anil‟s person. Her sons Ajay and Deepak were caught hold by the
servants of Sripal. Ajay was trying to extricate himself from the grips of
the servants and thereupon Ramesh (Juvenile) inflicted knife blows on the
person of her son Ajay. She deposed that Mahesh had also inflicted knife
blow on the person of Anil. As she advanced towards Appellant Sripal, he
inflicted three knife blows on her person on the left side of her body. Her
injured son started bleeding at the spot. She became unconscious.
46. The factum of receipt of three stab injuries on the person of PW-8
Kalawati establishes her presence at the spot at the time of occurrence.
47. There is a small discrepancy in the role assigned to Appellant Mahesh by
PW-8 Kalawati and PW-3 Deepak.
48. PW-8 Kalawati had made Appellant Mahesh also responsible for inflicting
knife blow on the person of Anil. She had not stated this fact in her
statement under Section 161 Cr.P.C. made to the police. She was
confronted with her statement Ex.PW-8/DA recorded by the IO. PW-3
Deepak assigned the role of catching hold, giving hammer blow on the
person of Ajay. PW-3 also testified that when his brother Ajay extricated
himself from the clutches of the servant (of Sripal), Appellant Mahesh
caught hold of him and then Ramesh (Juvenile) repeatedly inflicted knife
blows on the person of Ajay. The Court has to keep in mind that power of
observation, retention and recall (of facts and situations) differ from
person to person. Thus, even if the knife blow claimed by PW-8 Kalawati
to be inflicted on Ajay‟s person by Mahesh are excluded he had equally
participated in the incident by firmly holding Anil while knife blows were
inflicted by Appellant Sripal and Ramesh (Juvenile) and then holding Ajay
while Ramesh (Juvenile) inflicted knife blows. This discrepancy in the
testimonies of these witnesses does not affect the substratum of the
prosecution version.
49. Considering the large number of injuries on the person of deceased Anil
and Ajay and three injuries on the person of PW-8 Kalawati, we find no
reason to disbelieve the account of the incident as given by PW-8. The
same is also corroborated by the testimony of PW-3 Deepak in all material
particulars as also by the MLC Ex.PW-11/A of PW-8 Kalawati and the
Postmortem report Ex.PW-14/A and Ex.PW-14/B of deceased Anil and
Ajay respectively.
50. The involvement of the two Appellants and Ramesh son of Appellant
Sripal is established.
51. The defence tried to make out a case that it was the servant of Appellant
Sripal who caused injuries on the person of the two deceased and PW-8
Kalawati.
52. We do not agree with the plea raised on behalf of the Appellants. It has
been proved on record that there was a constant complaint by the
complainant party regarding the emission of smoke and foul smell from
the factory belonging to the accused party. It is proved from the testimony
of PW-3 Deepak that the Appellants had threatened and used foul
language against the deceased and PW-3 when they had lodged a protest
on this issue, the previous evening. Therefore, the servant of Appellant
Sripal may have helped his Master, but, it was the Appellant Sripal and his
two sons who were leading the attack. Of course, the aforesaid servant of
Sripal was not arrested to face trial but that cannot absolve the Appellants
of their criminal act.
53. The Appellants examined DW-1 Rakesh Khosla who deposed that on
17.10.1992 he went to the factory of Sripal in Hardev Puri. He saw two
persons assaulting two boys who had fallen on the ground. He gave the
names of the two persons who had fallen (as per DW-2 Harender Kumar
to be Ramesh (Juvenile) and Mahesh (The Appellant)). He deposed that
two persons holding a knife came out of the factory of Sripal and assaulted
the persons standing there. To the same effect is the testimony of DW-2
Harender Kumar. DW-3 Sudesh and DW-4 Kirno deposed about the visit
of Appellant Sripal to their house in Modi Nagar and then accompanying
them to Ghaziabad.
54. DWs 1 and 2 are completely silent about the presence of any lady (i.e.
PW-8 Kalawati). They did not make any complaint to the higher
authorities nor did they ask Appellant Sripal to lodge a report. Their
version does not explain injuries on the person of PW-8 Kalawati. The
Trial Court rightly disbelieved the version as given by DWs 1 and 2.
Otherwise also, it is not believable that a servant or two servants would
cause such serious injuries on unknown persons simply on the ground that
such persons had caused some injuries on the person of the sons of the
owner of the factory.
55. From the sequence of events, it is established that the Appellants had a
motive to teach a lesson to the complainant party because of the nagging
complaints being made by them (complainant party) for running the
factory for manufacture of utensils.
56. PWs 3 and 8 are the most natural witnesses at the time of the incident.
Their presence is also established by spontaneous recording of the FIR and
the injuries on the person of PW-8 Kalawati.
57. An attempt was made by the learned counsel for the Appellants to show
that PWs 3 and 8 were not aware of the identity of the Appellants as the
factory was started just 20-25 days prior to the incident. This contention
of the learned counsel for the Appellants is misconceived. It is true that
the accused party had started the factory 20-25 days prior to the incident.
PW-3 Deepak deposed that prior to this, the accused persons used to visit
to look after the premises which was lying vacant for 15-16 years. PW-3
further deposed that the construction on the above plot was also raised by
the accused persons after selling half portion of the plot. Thus, both PWs
3 and 8 had the opportunity to see the Appellants for 20-25 days prior to
the incident. PW-3 even saw the accused persons while construction was
raised on the plot of land (for starting factory). The names of the accused
persons were given in the FIR. Thus, there is no manner of doubt about
the identity of the assailants.
58. The contention raised on behalf of the Appellants that there was no motive
for commission of the crime is also misconceived. As we have discussed
earlier, there was motive on the part of the Appellants to teach the
complainant party a lesson for their constant nagging for running the
factory.
59. PW-19 IO of the case testified in his cross-examination that there was no
Chimney in the factory of the Appellants, though a suggestion was given
that a Chimney was installed in the centre of the factory with a height of
15-20 feet. Yet, no documentary evidence was produced regarding the
purchase or installation of the Chimney.
60. An attempt was made on behalf of the Appellants to make out a case that
the cause of quarrel was some buffaloes. DWs 1 and 2 also deposed about
the presence of two buffaloes in the street outside the factory of the
Appellants. A suggestion was given to PW-3 that the complainant party
owned three buffaloes and that PW-8 used to tie them outside the
Appellants‟ house. No suggestion was given to PW-3 that any buffalo
was owned by the complainant party. A suggestion was also given to the
IO that the complainant party used to tie three buffaloes in front of the
factory of the accused party which was objected to by Ramesh (Juvenile)
or that he was given beatings on that account by deceased Anil and Ajay
with sticks and that when Appellant Mahesh intervened, he was also given
beatings. The appellants did not suggestto PW-3 and PW-8 about details
of purchase of the buffaloes and when the first complaint was lodged by
the accused party and what was the reaction in respect of the first
complaint. We are, therefore, not inclined to believe the Appellants‟
version that any buffalos were owned by the complainant party or that the
cause of quarrel was the tethering the buffaloes outside the factory of the
accused party resulting into nuisance to them. We are of the view that this
story has been invented by the Appellants just to put up a defence to the
incident.
61. It is argued by the learned counsel for the Appellants that even if the
prosecution version is believed, the Appellants can be held guilty for the
offence of committing culpable homicide punishable under Section 304
IPC only as the injuries were caused on account of sudden fight without
any premeditation. On perusal of the record we find no evidence of sudden
quarrel. This is true that an accused can show from prosecution evidence
that the case would fall under any exception. MLC of Appellant Mahesh
is on record, he had suffered three injuries by a blunt object. The MLC of
Ramesh (Juvenile) is not on record. The theory of the buffaloes owned by
the complainant party has been disbelieved by us earlier. It was for the
Appellants to show that their case falls under exception IV or under any
other exception. This has not been done. On the other hand, when the
Appellants were examined under Section 313 Cr.P.C., they completely
denied the incident. Appellant Sripal took the plea that he was not present
at the time of the incident. It was claimed that he was not even in Delhi.
62. Appellant Mahesh simply stated that there was some altercation regarding
the nuisance caused by the presence of buffaloes in the street which was
objected to by them and that is why the case had been made against them.
Thus, it is not even suggested either in the cross-examination as to how the
quarrel started or how the Appellants caused injuries on the person of
deceased Anil, Ajay and PW-8 Kalawati.
63. We have already disbelieved the defence that it were the servants who had
caused knife blows numbering 14-15 each on deceased Anil and Ajay.
64. It is established that the Appellants Sripal and Ramesh (Juvenile) were
armed with knife. Appellant Mahesh was armed with a hammer.
Appellant Mahesh gave a hammer blow on the person of Ajay. Initially,
servant of Appellant Sripal caught hold of deceased Ajay; Ajay freed
himself and tried to run away when Appellant Mahesh overpowered him
and Ramesh (Juvenile) followed Ajay and stabbed him repeatedly.
Appellant Sripal and Ramesh also caused knife injuries on the person of
Anil and Appellant Sripal further caused knife injuries on the person of
PW-8 Kalawati.
65. Section 34 IPC is an exception to the general law that a person is
responsible for his own act as it makes a person vicariously responsible for
the act of others, if he has common intention to commit an offence. To
hold a person guilty for the act of another there has to be pre-arranged plan
and acting in concert pursuant to the plan. The common intention, to
bring about a result, may also well develop on the spot.
66. In Girija Shankar v. State of U.P. (2004) 3 SCC 793; the Supreme Court
elucidated the principle of joint liability of a criminal act in the following
words:-
"Section 34 has been enacted on the principle of joint
liability in the doing of a criminal act. The section is only a
rule of evidence and does not create a substantive offence.
The distinctive feature of the section is the element of
participation in action. The liability of one person for an
offence committed by another in the course of criminal act
perpetrated by several persons arises under Section 34 if
such criminal act is done in furtherance of a common
intension of the persons who join in committing the crime.
Direct proof of common intention is seldom available and,
therefore, such intention can only be inferred from the
circumstances appearing from the proved facts of the case
and the proved circumstances".
67. No injury by blunt object was noticed on the person of Ajay in post
mortem report Ex.PW-14/B by PW-14 Dr. Anil Kohli. PW-14, however,
noticed as many as 15 incised wounds on various parts of the body. If any
knife blow is inflicted over any blow given by a hammer (i.e. a blunt
object) the stab injury may over shadow a blunt injury and the same may
not be noticed. Even if, it is assumed that hammer blow given by
Appellant Mahesh had not fallen on Ajay, still the factum of Ajay being
held by Appellant Mahesh while co-accused Ramesh (Juvenile) was
repeatedly inflicting injuries on his person was sufficient to hold that he
shared the common intention to cause serious injuries on the vital parts of
the body of Ajay.
68. In Murari Thakur v. State of Bihar, (2009 ) 16 SCC 256, it was held as
under:-
"7. We agree with the view taken by the High Court and
the trial court that the accused had committed murder of
deceased Bal Krishna Mishra after overpowering him in
furtherance of their common intention on 26-8-1998 at 4
p.m. No doubt it was Sunil Kumar, who is not before us,
who cut the neck of the deceased but the appellants before
us (Murari Thakur and Sudhir Thakur) also participated in
the murder. Murari Thakur had caught the legs of the
deceased and Sudhir Thakur sat on the back of the
deceased at the time of commission of this murder. Hence,
Section 34 IPC is clearly applicable in this case."
69. The intention or the knowledge of the offender has to be gathered by the
Court from the conduct of the accused. As per the first clause of section
300 IPC, culpable homicide is murder, if the act by which the death is
caused is done with the intention of causing death. The second clause is
attracted where an act is done with the intention of causing such bodily
injuries as the offender knows to be likely to cause death of the person to
whom the harm is caused. The third clause is attracted when the intention
is of causing bodily injury to any person and the bodily injury intended to
be inflicted is sufficient in the ordinary course of nature to cause death.
The fourth clause comprehends the commission of an imminently
dangerous act which must in all probabilities cause death like firing in a
crowd.
70. First clause and third clause of Section 300 IPC are attracted in the present
case on account of the large number of injuries inflicted on the person of
deceased Ajay and Anil. Considering the number and site of the injuries,
there is no manner of doubt that it was a murderous assault caused by the
two Appellants in concert with the co-accused. Out of 14 injuries found on
the person of Anil, injuries No.1, 4 and 10 were sufficient to cause death
in the ordinary course of nature independently of each other. Similarly,
out of the 15 injuries found on the person of deceased Ajay, injuries No.3,
4, 7 and 8 individually were sufficient to cause death in the ordinary
course of nature. A number of injuries were found on the vital parts of the
deceased Anil and Ajay. It is not a case where the injury was intended to
be inflicted on another part of the body which landed on the vital part.
Thus, it can very well be said that the Appellants had the intention or
knowledge to cause death as also to cause such bodily injuries as were
sufficient to cause death in the ordinary course of nature. The case clearly
falls under first clause and third clause of Section 300 IPC as far as
injuries on the person of deceased Anil and Ajay are concerned. With
regard to injury on the person of PW-8 Kalawati, the nature of injuries
though stated to be dangerous as per the MLC Ex.PW-11/A, could not be
properly proved and thus instead of holding the Appellants guilty under
Section 307/34 IPC, they were convicted under Section 324/34 IPC. The
State has not challenged that finding.
71. In view of the foregoing discussions, we are of the opinion that the Trial
Court rightly convicted the Appellants for the offence punishable under
Section 302/34 IPC and 324/34 IPC. The Appeal, therefore, has to fail; it
is accordingly dismissed.
72. The Appellants shall surrender before the Trial Court on 3rd May, 2011 to
serve the balance of their sentence. The Registry shall transmit the Trial
Court records and this judgment, forthwith, to ensure compliance.
(G.P. MITTAL)
JUDGE
(S. RAVINDRA BHAT)
JUDGE
APRIL 25, 2011/vk
