Delhi High Court
Rakesh vs State on 28 April, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Hearing : 30th March, 2011
Date of Decision : 28th April, 2011
+ CRL.A No.10/2011
MURARI ... APPELLANT
Through: Mr.Sameer Chandra, Advocate.
Versus
STATE ... RESPONDENT
Through: Mr.Jaideep Malik, APP for the State
AND
CRL.A No.228/2011
SANDIP @ SANJU ... APPELLANT
Through: Ms.Meenakshi Lekhi, Advocate.
Versus
STATE ... RESPONDENT
Through: Mr.Jaideep Malik, APP for the State
AND
CRL.A No.241/2011
CHANDAN @ CHANDU ... APPELLANT
Through: Mr.Ranjit Singh, Advocate.
Versus
STATE ... RESPONDENT
Through: Mr.Jaideep Malik, APP for the State
AND
CRL.A No.139/2011
RAKESH ... APPELLANT
Through: Mr.Sameer Chandra, Advocate.
Versus
STATE ... RESPONDENT
Through: Mr.Jaideep Malik, APP for the State
AND
CRL.A No.11/2011
SURESH ... APPELLANT
Through: Mr.Sameer Chandra, Advocate.
Crl.A Nos.10/2011 etc. Page 1 of 24
Versus
STATE ... RESPONDENT
Through: Mr.Jaideep Malik, 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.
Crl. A. Nos. 10/2011, 228/2011, Crl. A. Nos. 241/2011, 139/2011 & 11/2011
1. Criminal law was set into motion when on the basis of information given
by operator S-53 (of PCR) that there was a quarrel at Lado Sarai T point,
near Masjid and a person was lying there in a serious condition, DD
No.41/A (PW17/A) recorded in Police Station (PS) Mehrauli was handed
over to Head Constable Mahender Bhardwaj for necessary action. Since
the area of the incident fell within the jurisdiction of Police Post (PP)
Saket, HC Mahender Bhardwaj transmitted the said information to the
Police Post which was recorded by Constable Satbir at 10:50 P.M. by DD
No.29 (Ex.PW27/A). DD No.29 was assigned to SI Aishvir Singh in
charge PP Saket. He (SI Aishvir Singh) left for the spot along with HC
Shiv Kumar, HC Devender and HC Jagdish.
2. On reaching the spot PW-29 SI Aishvir Singh (the SI) found a pool of
blood at two places. One big stone and one small stone (both blood
stained) were lying there. A motor cycle (Hero Honda Splendor) bearing
No.DL3SAJ 7048 was parked at a distance of 50-60 metres from the spot.
On inquiry SI Aishvir Singh came to know that the injured had been
removed to AIIMS in his vehicle by a public person. HC Jagdish was
directed to remain present at the spot to secure it. The SI proceeded to
AIIMS along with other members of the staff.
3. On reaching AIIMS, the SI obtained the MLC (Ex.PW16/A) of Jitender
Panwar (the deceased) who had been declared brought dead at 11:15 P.M.
One Mohd. Sagir (PW-9A) met him who claimed to have seen the
incident. The deceased‟s belongings were handed over to him by the Duty
Constable Satish which were seized by him by memo Ex.PW12/A. SI
recorded Mohd. Sagir‟s statement (Ex.PW-9A). He made an endorsement
Ex.PW29/A and sent the same to the Police Station for registration of the
case.
4. The SI along with his staff, the deceased‟s car and witnesses, namely,
Nand Kishore, Naveen Kumar, Mohd. Sagir and Fakre Alam reached the
spot at 12:45 A.M. He requisitioned the crime team.
5. Inspector Pankaj along with SHO and other staff met him at the spot. The
investigation of the case was handed over to Inspector Pankaj (IO). He
(SI) entrusted him (the IO) DD No.29 and MLC Ex.PW16/A of the
deceased.
6. According to the prosecution, the crime team reached the spot at about
12:50 A.M. SI Vinod Kumar and Constable Girdhar of the crime team
took photographs of the spot from various angles. The crime team gave its
report to the IO at 1:25 A.M. with direction to send the dead body to the
autopsy surgeon to ascertain the cause of death. The IO prepared the site
plan Ex.PW-9/B at the instance of Mohd Sagir PW-9A. The IO lifted the
blood from the spot. Blood stained earth and control earth were seized
from the spot. The articles seized were given various serial numbers and
were taken into possession by the IO by memo Ex.PW-9/A. A "Splendor"
motorcycle bearing No. DL 3SAJ 7048 was seized by memo Ex.PW-9/D.
Two blood stained teeth were found in the backseat of the Maruti Zen car
bearing no. DL2CN 7646. They were kept in a plastic box, which was
converted into a pulanda and sealed with the seal of „PS‟. The seat cover
also had blood stains. These were kept in a plastic bag sealed with a seal
of „PS‟ and seized by memo Ex.PW9/F. A blood stained large stone was
kept in a plastic bag whereas a blood stained roda was kept in a separate
white plastic bag. SI Aishvir Singh got the names of registered owners of
both motorcycles bearing No. DL3SAJ 7048 (make Splendor) and DL
4SAU 5239 (make CBZ) from the traffic helpline. Case property was
deposited by Inspector Pankaj at Police Post Saket. The police party then
reached H.No.C-18, JJ Colony, Khanpur, the residence of Mukesh
(registered owner of the Splendor motorcycle). He informed the IO that
the said motor cycle was taken by Appellant Suresh. According to the
prosecution at about 9:30 A.M. Inspector Pankaj along with other police
staff again went to AIIMS where he met the relatives of the deceased,
namely, Dharmender Panwar and Sunil. The IO recorded their statements
Ex.PW-7/A and Ex.PW-1/A regarding identification of the dead body. He
held the inquest proceedings and sent the body for post mortem
examination.
7. According to the prosecution, on 17.07.2007 at about 2:00 P.M. the IO
received secret information regarding the presence of the four accused
near a food rehri at T point Khanpur and arrested Appellants Rakesh,
Suresh, Sandip and Chandan on identification by a secret informer.
Motorcycle bearing No. DL 4SAU 5239 was parked near these four
Appellants. After personal search of the Appellant Sanjay keys of the
Splendor motorcycle bearing No. DL3SAJ 7048 were also recovered. The
keys were converted into a packet and sealed with a seal of „PS‟.
8. Appellants Suresh, Sandeep, Rakesh and Chandan made disclosure
statements Ex.PW12/P, Ex.PW12/Q, Ex.PW12/R and Ex.PW12/S
respectively. The four Appellants then led the police party to the spot and
pointed out the place of incident. The IO prepared the pointing out memo
Ex.PW12/T. Appellant Rakesh got a helmet recovered (Ex.P12/3) from
the left side of the road at Anuvart Marg which was seized by memo
Ex.PW12/V. Appellant Sandeep got recovered a helmet (Ex.P12/4) which
was seized by memo Ex.PW12/W. Appellant Chandan took the police
party to a place in front of a CNG petrol pump and took out a danda lying
adjacent to the MCD office. The said danda was seized by memo Ex.
PW12/X after preparing it into a sealed packet. Appellants Chandan,
Sandeep, Suresh, Rakesh were found wearing blood stained shirts. They
were asked to take them off; the shirts were seized by memos Ex.PW12/Y,
Ex.PW12/Z, Ex.PW12/Z1 and Ex.PW12/Z2 respectively. According to
the prosecution, the four Appellants were instructed to muffle their faces
when they were produced in the Court on 18.07.2007.
9. On 18.07.2007 at about 6:00 P.M. Appellant Murari was arrested from his
house No.L-I/150, Gali No.13, Sangam Vihar and arrest memo
Ex.PW12/Z3 was prepared. He took out a white colour shirt from his bath
room; it had blood stains on its left shoulder and arm. The shirt was
seized by seizure memo Ex.PW12/Z6 after converting it into a pulanda
and sealing it with a seal of „PS‟.
10. During investigation the Appellants refused to join the Test Identification
Proceedings. Autopsy on the dead body of the deceased was performed
by Dr. B.L. Choudhary (PW-24) who found seven injuries. He opined the
cause of death to be coma as a result of head injury (injury No.1). The IO
of the case produced a sealed bag with a seal of „PS‟ seeking his opinion
regarding the stone recovered from the spot. PW-24 testified that on
opening the sealed bag it was found to contain one stone weighing 20 kg
with dimension 40x27x21 cms. of irregular size. He along with Dr.
Raghvender Kumar, a junior resident opined that injuries No. 1 to 6 were
possible due to impact of that stone. PW-24 was also shown the danda
seized during investigation. PW-24 opined that injury No.7 was possible
from this danda. After completion of investigation a report under Section
173 Cr.P.C was filed in the Court.
11. The Appellants pleaded not guilty to the charge for the offence punishable
under Section 302 read with Section 34 IPC. The prosecution, in order to
prove its case examined 29 witnesses. PW-2 Fakre Alam, PW-9A Mohd.
Sagir and PW-22 Constable Rohtash claimed to be eye witnesses. PW-16
Dr. Sunil Kumar medically examined the deceased when he was removed
to the casualty section of AIIMS. He declared the patient brought dead
and proved his report Ex.PW16/A. PW-24 Dr. B. L. Choudhary
performed the autopsy and proved post mortem report Ex.PW-24/A and
gave his opinion in respect of the weapon of offence as Ex.PW-24/B.
PW-7 Dharmender Panwar, (brother of the deceased) deposed that on
16.07.2007 (at about 10:30/11:00 P.M.) receiving a telephone call from a
police man from AIIMS that his brother Jitender Panwar had met with an
accident. He, along with his father reached AIIMS and identified his
brother‟s corpse. On 17.07.2007 during cross-examination, the witness
deposed having reached AIIMS between 10:30/11:00 P.M. and he was
there till 4:00 /5:00 A.M. He met a police man, Shiv Kumar. He did not
meet anyone else. Rest of the witnesses are police officials and have
deposed about the part played by them during investigation of the case.
12. PW-9A Mohd. Sagir is an eye witness to the incident. The FIR was
recorded on the basis of his statement Ex.PW9/A. He (PW-9A) deposed
that on 16.07.2007 he along with Fakre Alam was returning from Lado
Sarai park after seeing a cricket match. At about 10:30 P.M. they reached
Lado Sarai Red Light, T-point, when they saw one Maruti Zen car bearing
No.7646. In the meanwhile, one Hero Honda Splendor bearing No.
DL3SAJ 7048 hit the bumper of the said car. Deceased Jitender Panwar
(whom they knew previously) got down from the car and argued with the
two boys on the motor cycle. The two boys started arguing with Jitender
Panwar (the deceased). Jitender Panwar picked up a danda from his car
and showed it to those boys and then sat in his car. In the meanwhile, three
persons reached on a motorcycle CBZ No. 5239. They had a word with
the two persons on the other motorcycle (who had argued with the
deceased) and started abusing Jitender Panwar. He proceeded further and
stopped at the Traffic Signal in front of the Masjid. He went out from the
car with a danda. The said five persons too reached the spot and got off
their motor cycles. There was a quarrel between Jitender Panwar and
those five persons. The two persons who were driving the motor cycle
started beating Jitender Panwar with the help of helmets whereas the
others (three persons) kicked him and gave fist blow and snatched the
danda. He was given danda blows as a result of which he fell down on
the road. They gave beatings to Jitender Panwar while he was lying on the
road. They picked up a stone lying nearby and started hitting the
deceased‟s head with it. They (PW9A and PW-2) raised an alarm and
tried to chase the five culprits. In the meanwhile, one police man also
reached the spot and accompanied them in their chase to catch the culprits.
The three persons on the CBZ motorcycle fled on the bike. One of the
other two tried to start the other motor cycle in order to escape, but could
not start it. He, therefore, tried to run with the motor cycle. The fifth man
ran towards Lado Sarai. Since the motorcycle (the Hero Honda) did not
start, its rider ran towards the forest after leaving it on the left side of the
bus stand. The witnesses‟ chase to catch the culprits was unsuccessful;
therefore, they returned to the spot and found that members of the public
had taken Jitender Panwar to AIIMS in his (deceased‟s) car. They also
reached AIIMS where Jitender Panwar was found declared "brought
dead".
13. PW-2 Fakre Alam and PW-22 Constable Rohtash gave their own account
of the incident which we would discuss in a later part of the judgment.
14. 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
circumstances on the record against them. All of them denied
involvement in the incident and took the plea that they were falsely
accused in the case by the police. They stated that eye witnesses were
planted by the police and had deposed falsely.
15. The Appellants Murari, Suresh and Rakesh produced, DW-1 Ram Avtar,
DW-2 Mohd Farooque and DW-3 Ghanshaym to prove that at the time of
the alleged incident they were with them.
16. DW-1 Ram Avtar deposed that he knew Appellant Murari for the last 10-
12 years. On 16.07.2007 at about 9:00 P.M. the Appellant went to his
house to clear the dues on account of milk supplied by him. He (Murari)
had his dinner with him (DW-1) and left his house at 11:30 P.M.
17. DW-2 Mohd. Farooque testified that on 16.07.2007 at about 8:45 P.M. he
and Appellant Suresh were present at Sainik Farms Gate No.1 and they
had proceeded to Pali for loading a truck. The Appellant Suresh remained
with him till 11:45 P.M.
18. Similarly, DW-3 Ghanshyam deposed that Appellant Rakesh was his
neighbour. On 16.07.2007 at about 9:00 P.M. the Appellant Rakesh went
to attend the birthday party of his daughter and he remained at his (DW-3)
residence till 11:00 P.M.
19. By impugned judgment the learned Additional Sessions Judge (ASJ)
found that Appellants Murari and Suresh were responsible for causing
Injury No.1 on the person of the deceased which proved fatal. They were
thus, individually and jointly held liable under Section 300 (3) read with
Section 302 IPC. It was further held that the Appellants Sandeep,
Chandan and Rakesh had shared the common intention of causing serious
injuries on the person of the deceased and thus they were also held
vicariously liable for the acts of the Appellants Murari and Suresh.
Accordingly, all the Appellants were convicted under Section 302 read
with Section 34 IPC and sentenced as stated earlier.
20. We have heard Mr. Sameer Chandra Advocate for Appellants Murari,
Rakesh and Suresh, Ms. Meenakshi Lekhi Advocate for Appellant
Sandeep, Mr. Ranjit Singh Advocate for Appellant Chandan and Mr.
Jaideep Malik, Additional Public Prosecutor for the State and have
perused the record.
21. It is urged by the learned counsel for the Appellants that PW-2 and PW-
9A who were claimed by the prosecution to be eye witnesses to the
occurrence are chance witnesses. Their testimonies do not inspire
confidence as their conduct was unnatural. PW-22 (Constable Rohtash)
who claimed himself to be an eye witness was disowned by the IO to be
so. The testimonies of the three witnesses (i.e. PW-2, PW-9A and PW-22)
are discrepant on major aspects of the prosecution version. Mohd. Sagir
(PW-9A) did not give even the slightest description of the assailants;
Constable Rohtash (PW-22) an alleged eye witness was associated in the
search and apprehension of the culprits, though the culprits were
previously not known to him which would make the investigation tainted
and unfair. Therefore, it would be unsafe to rely upon their testimonies to
base conviction of the Appellants.
22. Learned counsel for the Appellants referred to the crime team report
Ex.PW-11/A which does not mention the weapon used, the name of the
complainant is mentioned as „PCR‟ though the FIR had already been
recorded on the basis of the statement of PW-9A. It is contended that as
per the prosecution version the statement Ex.PW-9/A of Mohd. Sagir was
recorded at about 12:15 A.M. on 17.07.2007 on the basis of which the FIR
was allegedly recorded immediately which is falsified by the scribe (of
Ex.PW-9/A) SI Aishvir Singh initial IO of the case, who testified that the
statements of Fakre Alam and Mohd. Sagir were recorded later, after
completing search for the accused persons at about 6:00 A.M.
23. It is pleaded that the story of the arrest of the four Appellants Sandeep,
Chandan, Rakesh and Suresh on 17.07.2007 at 2:00 P.M. at the pointing
out of the secret informer at Khanpur T Point where the Appellants were
allegedly standing near a food rehri is improbable and unbelievable. It is
contrary to normal human conduct that four persons after committing a
crime would casually stand near the place of the incident, wearing blood
stained shirts. It is submitted that it has been stated by PW-24 Dr. B.L.
Choudhary that "blood could not have splashed after the face of the
deceased was hit with the stone as there was no large size damage of the
arteries" and thus, there cannot be any blood stains on the clothes of the
Appellants.
24. It is submitted that the prosecution version was that the quarrel took place
all of a sudden, on a spur of moment without any preconcert or pre-
planning and the Appellants were not armed with any weapon. Thus, the
Appellants cannot be made liable for the act of others with the aid of
Section 34 IPC.
25. On the other hand, it is contended on behalf of the State that there are
some minor variations and discrepancies here and there in the testimonies
of the three eye witnesses which do not affect the main substratum of the
prosecution version. The recovery of danda and blood stained clothes at
the instance of the Appellants has put a seal of authenticity on the
prosecution version. The two public witnesses are reliable and
trustworthy and thus the Appeals are liable to be dismissed.
26. PW-2 Fakre Alam is a resident of Ward No.1 Mehrauli, whereas PW-9A
Mohd. Sagir is a resident of Ward No.6 Mehrauli. Deceased Jitender
Panwar was not their immediate neighbour. The two public witnesses and
the deceased were not travelling together. The incident took place at quite
a distance from the place of their residence. According to PW-2 he along
with Mohd. Sagir (PW-9A) was returning to his home in the Wagon R
when they had seen this incident. If by a coincidence or by chance
someone happens to be at a crime scene at the time it takes place, he is
called a "chance witness". And if he or she happens to be a relative or
friend of the victim or is inimically disposed towards the accused then his
being a chance witness is viewed with suspicion. (Bahal Singh v. State of
Haryana, 1976 SCC (Cri.) 461). Of course, testimony of such a witness
cannot be discarded such witness ipso facto is not unworthy of credence.
The testimony of such witness, however has to be scrutinized with due
care.
27. Both PWs 2 and 9A claim to have witnessed the incident from the Wagon
R in which they were travelling. PW-2 deposed that on the way they
noticed a Zen Car bearing No.7646. A black coloured motor cycle
(Splendor make) with two boys hit the rear of the Zen. Jitender (deceased
whom they knew previously) came out of the Zen Car; there was an
altercation between the boys (on the motorcycle) and the deceased.
Another motor cycle with three boys reached there. This resulted in an
altercation between the five boys and the deceased. The deceased took out
a danda from the car and showed it to the five boys. The red light turned
green, the deceased‟s car and the motor cycles went ahead. At Anuvart
Marg in front of the Masjid the two motor cycles went in front of the
deceased‟s car. He went out and hit one of the boys and they snatched the
danda. Those boys hit the deceased on his head with helmets and the
danda which they had snatched (from the deceased). He fell down. Two
boys came towards the foot path, picked up a stone and hit the deceased
on the head. The witnesses raised alarm; the three boys on the CBZ motor
cycle escaped, one boy who wielded the stone ran towards Lado Sarai; the
other boy wheeled the motor cycle, and could not start it. He later left the
motor cycle, and ran towards the jungle. A police man came. Mohd.
Sagir, PW-2 and the police man followed the CBZ motor cycle in their
Wagon R, but could not nab the assailants. The witnesses and the
policeman returned to the spot. They learnt that some persons had
removed the deceased to AIIMS.
28. PW-9A on the material aspect as to what happened after hitting of the car
by the motor cyclist deposed that the deceased came down from the car
and scolded the two boys. The said two boys started arguing with the
deceased. The deceased picked up a danda from his car and showed it to
them. Thereafter, the deceased sat in the car. In the meanwhile, three
persons reached there on a CBZ motor cycle. They had a word with the
two boys and then started hurling abuses at the deceased. The deceased
proceeded further and the five persons on the two motor cycles chased
him. The deceased crossed the traffic signal and stopped the car in front
of a Masjid and got down with a danda. The five persons who reached the
spot on the motor cycles also got down and a scuffle took place. Two
persons who were riding the motor cycles started beating the deceased
with their helmets and others started giving kick and fist blows to the
deceased. They snatched the danda from him and beat him with it as a
result of which he fell on the road. They gave beating to the deceased
with danda while he was lying on the road. They picked up a stone lying
nearby and started hitting the deceased on his head. The witnesses raised
alarm and tried to chase the five culprits. In the meanwhile, one police
Constable reached there. He accompanied them in their chase of the
culprits. Three of them escaped on the CBZ motor cycle while one of
them tried to start the other motor cycle could not do so. He, therefore,
held the handle of Hero Honda motor cycle and tried to flee. The fifth
attacker of them ran towards Lado Sarai. The accused who was wheeling
Hero Honda Motor cycle (on foot) parked it to the left of the bus stand and
ran towards the jungle after crossing the iron fencing. They tried
unsuccessfully to chase above said five assailants in their car. They
returned to the spot and saw that some members of the public had
removed the deceased to AIIMS.
29. Constable Rohtash PW-22 testified that on 16.07.2007 at about 10:30 P.M.
he was patrolling the area on his motor cycle. He stopped his motor cycle
at the Lado Sarai traffic signal and MB Road crossing. He noticed five
persons quarreling with someone near the Mosque. They were giving leg
and fist blows to a man and beating him with danda and helmets. As soon
as the signal turned green the witness went forward and saw Appellants
Murari and Suresh giving a stone blow on the head of that person.
Appellants Rakesh and Sandeep were beating with the helmets. The
Appellant Chandan was beating that person with a danda. He parked his
motor cycle on one side of the road and raised an alarm pakro-pakro, the
Appellant Murari fled towards Lado Sarai on foot, the Appellant Sandeep
dragged the motor cycle by the handle as it did not start. Appellants
Rakesh, Suresh and Chandan fled on the CBZ motor cycle towards traffic
signal of Anuvart Marg and Aurbindo Marg. Appellant Sandeep parked
his motor cycle near a bus stand as it did not start and ran towards the
jungle. They unsuccessfully chased the Appellants Suresh, Chandan and
Rakesh till Adhchini. He, therefore, returned to the spot. Some public
persons had removed the injured in his vehicle to AIIMS. When cross-
examined, this witness deposed that he chased the accused persons on his
motor cycle and the two public persons were sitting on his motor cycle at
that time.
30. There is contradiction in the testimony of the two public witnesses and
Constable Rohtash about the role assigned to each of the Appellants.
There is also contradiction between the statement Ex.PW-9/A on the basis
of which the FIR was recorded and the testimony of PW-9 Mohd. Sagir
where the manner in which the incident took place is recorded. Similarly,
there is contradiction on some aspects of the prosecution version in the
statement under Section 161 Cr.P.C. of PW-2 Fakre Alam and his
statement in the Court. The witnesses were cross-examined and also
confronted with their earlier statements with regard to the improvements.
We may not attach much importance to them as the witnesses are not
expected to have a photographic memory. They are bound to mix up
certain facts, particularly when, the number of assailants are five.
31. There is a contradiction on an important aspect of the prosecution version
which a witness is not likely to forget or make a mis-statement even after a
long lapse of time. According to PW-2 and PW-9A, Constable Rohtash
(PW-22) chased the culprits in their Wagon R. The chase according to
PW-22 was by him on his motor cycle and the two public persons were
sitting on the pillion seat. Even if, it is assumed that the two public
persons (sitting on his motor cycle) were other than PW-2 and PW-9A, yet
there is no explanation as to how Constable Rohtash could accompany
PW-2 and PW-9A in their Wagon R. It has emerged in the cross-
examination of these witnesses that 20 minutes after the chase they
returned to the spot, when the injured had already been taken to AIIMS.
As per the prosecution version, (which has been corroborated by PW-2,
PW-9A and PW-22) the Splendor motor cycle did not start, as a result of
which it was dragged by the Appellant Sandeep, on foot. According to the
prosecution, when the motor cycle did not start, it was parked near the bus
stand on the left side. A perusal of the site plan Ex.PW-9/B reveals that
the altercation took place between the two Appellants and the deceased at
Point A, the assault of the deceased by the Appellants took place at Points
B and C and the Splendor motor cycle was parked near the bus stand at
Point D. PWs 2 and 9A claim to have chased the Appellants in their
Wagon R whereas PW-22 (the police Constable) claimed to have chased
them on his motor cycle. As noticed earlier, one of the culprits, Sandeep
was dragging the motor cycle on foot (as it did not start). The distance
between the place of the occurrence and the place where the motor cycle
was found parked is about 50-60 metres. It would be very easy for anyone
to apprehend someone who is wheeling (and not riding) a motorcycle,
because its weight would slow him. In the instant case, the chase was on a
motor cycle and in a car which in any case would be swifter than someone
dragging a motor cycle for 50-60 metres. It is highly improbable, rather
impossible that three persons chasing a person situated in a position such
as the Appellant Sandeep would not be in a position to apprehend him
even if it is believed that the other culprits could manage to escape.
32. According to the prosecution, PWs 2 and 9A and the police constable gave
a chase in pursuit of the culprits and could return to the spot only after 20
minutes. Though, we are not even inclined to believe that a police
Constable would chase a culprit than taking a mortally injured public
person to a nearby hospital, yet the two acquaintances i.e. PWs 2 and 9A
obviously would be more interested in saving the life of their friend rather
than chasing the assailants and that too for as long as 10 minutes in a
Wagon R (assuming that 10 minutes were spent in chasing and 10 minutes
in returning to the spot). While dealing with this contention the Trial
Court held that it would be the mental state of a witness which would
govern which course to follow. We do not agree. PWs 2 and 9A were
quite close to the deceased‟s car. Once the five Appellants had gathered
and one of them had snatched the danda from the deceased and started
giving him blows (while two others started giving him helmet blows) it
would be the natural conduct of PWs 2 and 9A who were also young boys
to intervene and save the deceased from the clutches of the five
Appellants. If they preferred not to intervene, (though there was no reason
not to intervene) as the Appellants were not armed with any weapon, it
cannot be expected that they would give a chase to the Appellants instead
of helping the deceased. Similarly, PW-22 was riding a motor cycle. He
could have reached the spot in no time to intervene and save the deceased.
The conduct of PW-22 also creates doubts about his presence at the time
of the incident. In fact, PW-27 Inspector Pankaj Singh admitted (when
cross examined) that PW-22 was not an eye witness to the incident.
33. At this time, the testimony of PW-7 Dharmender Panwar, brother of the
deceased assumes importance. He deposed that on 16.07.2007 at about
10:30 /11:00 P.M. he received a telephone call from a police man (from
AIIMS) in his house that Jitender Panwar (his brother) had met with an
accident. He reached AIIMS along with his father. In cross-examination,
he deposed to having remained in AIIMS till about 4:00 / 5:00 A.M. He
met a police man named Shiv Kumar and other police men were also
present there. He, however, did not meet anyone else. If the brother (PW-
7) of the deceased was present in AIIMS from 11:00 P.M. till at least 4:00
A.M. he would naturally have met PWs 2 and 9A (Mohd. Sagir and Fakre
Alam) who knew the deceased. A specific reply regarding the absence of
any person other than the police personnel negates the presence of PW-2
Fakre Alam and PW-9A Mohd. Sagir (whose statement Ex.PW-9/A was
recorded in AIIMS by SI Aishvir Singh on the basis of which the present
case was registered).
34. We would like to refer to the crime team report Ex.PW-11/A at this stage.
According to PW-27 (IO) and PW-29 (SI) the crime team was summoned
to the spot by PW-29. Both these witnesses were present at the spot at
12:50 A.M. at the time of the arrival of the crime team. The crime team
(as per Ex.PW-11/A) inspected the spot from 12:45 A.M. to 1:20 A.M.
The name of the deceased is mentioned as Jitender Panwar, aged about 35
years. The date and time of occurrence is mentioned as 16.07.2007, about
10:45 P.M. This information must have been given either by the SI (PW-
29) or by the IO (PW-27). The name of the complainant is mentioned as
PCR and the modus operandi is mentioned as by beating "with a blunt
weapon". The absence of the complainant‟s name i.e. Mohd. Sagir and
the weapon used in the assault in the crime team report Ex.PW-11/A by
1:20 A.M. shows that the SI (PW-29) and the IO (PW-27) were not aware
of the complainant‟s name and the weapon used by that time. In other
words, the statement of PW-9A (Ex.PW-9/A) on the basis of which the
FIR was registered had not been recorded by that time. This shows that
the IO had not even met Mohd. Sagir by that time. This inference is
supported by the SI (PW-29). Though, PW-29 stated in his examination-
in-chief that on reaching AIIMS he recorded statement of Mohd. Sagir, yet
when cross-examined by the counsel for the Appellants Suresh, Rakesh
and Murari, he stated that "statements of Fakre Alam and Sagir were
recorded later on after completing the search of the accused persons when
it was about 6:00 A.M. and thereafter they were sent to their houses".
35. As stated earlier, the IO admitted, in his cross-examination, that PW-22
was not an eye witness to the incident. If we apply the test of caution
while analysing the testimony of chance witnesses as held in Bahal Singh
(supra) we have no option except to hold that their presence at the spot at
the time of the incident is extremely doubtful.
36. Appellants Sandip @ Sanju, Chandan @ Chandu, Rakesh and Suresh were
arrested on 17.07.2007 by the IO in presence of SI Aishvir Singh and HC
Shiv Kumar. PW-27 (the IO) deposed that on 17.07.2007 at about 2:00
P.M. he along with SI Aishvir, HC Shiv Kumar, HC Devender and
Constable Rohtash reached Khanpur T Point. He called HC Jagdish,
Constable Jitender, Constable Bijender and Constable Rajender there. A
secret informer informed the SHO that the two persons who were standing
near the food rehri were Rakesh and Suresh (the Appellants) and two
persons who were standing near the motor cycle were Sandip and
Chandan (the Appellants) who were involved in the case. He interrogated
and arrested them. It is quite strange that the aforesaid four Appellants
were found wearing blood stained shirts at the time of their arrest. The
Trial Court while dealing with this contention held that the police had
conducted the raids on the night of the incident at the houses of the
accused and had deputed PW-5 and other police Constables there which
could have alerted the Appellants to change the blood stained clothes
before they were apprehended. We are not convinced with the reasoning
given by the Trial Court. The presence of the four Appellants near the
place of incident and that too wearing blood stained shirts is improbable
and highly suspect. If we go by the reasoning of the Trial Court that the
police personnel were stationed near the Appellants‟ houses and had no
opportunity to return to their houses and were therefore out of the house
the whole night till their arrest, there was no reason for their presence near
the place of the incident. Rather, they would have kept themselves away
from the area and would have destroyed or washed the blood stained
clothes (if there was any blood thereon).
37. In Khalil Khan v. State of M.P., 2004 SCC Cri. 1052, the Supreme Court
declined to rely upon the recovery of the blood stained clothes made in
similar circumstances. Moreover, it is also doubtful that the clothes of the
five Appellants could be stained with the blood of the deceased if the
incident took place in the manner as alleged by the prosecution.
38. According to the prosecution, two Appellants gave beatings to the
deceased with their helmets, (there is discrepancy in the statements of PW-
2 and PW9A, as PW-2 deposed in his examination-in-chief that Sandip
and Rakesh gave helmet blows and in cross-examination he deposed that
Chandan hit the deceased with the helmet whereas PW-9A testified that
Sandip and Rakesh hit the deceased with the helmets, one Appellant
(Chandan) gave a danda blow and two Appellants (Murari and Suresh)
gave the fatal blow with the big stone). After the fatal blow no other
injury was inflicted by any of the Appellants. PW-24 stated in his cross-
examination that blood could not have splashed after the face of the
deceased was hit with the stone as there was no large size damage of the
arteries. There could have been presence of blood stains on the clothes of
one or two of the Appellants who were in close contact of the deceased (in
the absence of any splash of blood). Thus, the presence of blood stains on
the shirt of all the five Appellants itself is suspect and points to its being
planted by the police.
39. This conclusion is strengthened from the entry in register No.19 Ex.PW-
15/A. The blood stained shirt of Appellant Murari was seized on
18.07.2007 as he was arrested only on that day. As per Ex.PW-15/A the
shirt (though recovered on 18.07.2007) was deposited in the malkhana
with PW-15/A HC Banwari Lal on 17.07.2007. It is not a case of the date
being mentioned wrongly in the malkhana register because there is an
entry regarding deposit of the articles belonging to the deceased by SI
Aishvir Singh on 17.07.2007 after the deposit of the shirt of the Appellant
Murari. This also shows that the investigation was unfair and tainted.
40. The presence of the big stone weighing 20kg at the spot is very doubtful as
it does not find mention in the Crime Team Report Ex. PW11/A.
Moreover, if two persons lift a stone weighing 20 kg and hit someone on
the head, the head/face would be totally smashed or crushed. The assailant
in the given situation would not like to hold the stone and give only a mild
blow to the victim.
41. The prosecution heavily relies on the refusal of the Appellants to join the
Test Identification Parade (TIP) coupled with the identification of the
Appellants in the Court by the two public witnesses. Refusal to participate
in TIP would lead to an inference that if the Appellants had joined the TIP
they would have been identified by the witnesses. This does not
necessarily mean proof of guilt. There could be justification on the part
of an accused to refuse to join a TIP for either he or his photograph had
been shown to the witnesses or there could be other opportunities to the
witnesses to see him.
42. According to the prosecution, Appellants Suresh, Rakesh, Sandip and
Chandan were arrested on 17.07.2007 at about 3:00 P.M. They were also
taken to the spot. No evidence has been produced by the prosecution to
show that the Appellants were instructed to keep their faces muffled at the
time of their arrest. Moreover, if the investigation is not fair, there is every
possibility of the Appellants being shown to the witnesses. Although,
Constable Rohtash was alleged to be an eye witness, yet he was associated
by the IO in the search of the assailants (the Appellants). Moreover, not
even a bare minimum description of the assailants (the Appellants) was
given in his statement Ex.PW-9/A by Mohd. Sagir. Even the age, the
build, the height or the clothes worn by the assailants were not mentioned
in the statement. After the apprehension of the Appellants TIP has to
follow when the crime was committed by unknown persons. Associating
Constable Rohtash in search of the Appellants casts serious reflection on
the fairness of the investigation by the IO. While refusing to participate in
the TIP, the five Appellants stated that their photographs were taken
through mobile phone and they were shown to the witnesses. This plea of
the Appellants cannot be easily brushed aside. Even otherwise, the refusal
to join the TIP itself is not sufficient to hold the Appellants guilty.
43. We are conscious of the fact that an accused cannot be acquitted merely
on the ground that the investigation is defective or is tainted. (Paras
Yadav v. State of Bihar, 1999 (2) SCC 126 and Zahira Habibulla H.
Sheikh v. State of Gujarat, (2004) 4 SCC 158). The probability that PWs
2, 9A and 22 were not present at the spot at the time of the actual incident
is too strong and cannot be ignored rendering their testimonies to be
suspect and unworthy of reliance.
44. In view of the foregoing discussions, we are of the view that there are
grave doubts in the case of the prosecution in the manner the occurrence
took place, who participated in the assault and whether all the five
Appellants were at all present at the spot during the incident. The
Appellants are entitled to the benefit of the doubt.
45. There is another aspect of the prosecution case. All the Appellants have
been convicted by the aid of Section 34 IPC. In criminal law, every
accused is responsible for his own act of omission or commission. This
rule is subject to the exception of vicarious liability enshrined under
Section 34 IPC. Direct proof of common intention is seldom available and
therefore such intention can only be inferred from the facts and
circumstances of each case. In Munni Lal v. State of M.P. 2009 (11) SCC
395, it was held as under:-
"..........In order to bring home the charge of common
intention, the prosecution has to establish by evidence,
whether direct or circumstantial, that there was a plan or
meeting of minds of all the accused persons to commit the
offence for which they are charged with the aid of Section
34, be it prearranged or on the spur of the moment; but it
must necessarily be before the commission of the crime.
The true contents of the section are that if two or more
persons intentionally do an act jointly, the position in law
is just the same as if each of them has done it individually
by himself. As observed in Ashok Kumar v. State of Punjab
the existence of a common intention amongst the
participants in a crime is the essential element for
application of this section. It is not necessary that the acts
of the several persons charged with commission of an
offence jointly must be the same or identically similar. The
acts may be different in character, but must have been
actuated by one and the same common intention in order to
attract the provision.
The section does not say „the common intentions of all‟, nor
does it say „an intention common to all‟. Under the
provisions of Section 34 the essence of the liability is to be
found in the existence of a common intention animating the
accused leading to the doing of a criminal act in
furtherance of such intention. As a result of the application
of principles enunciated in Section 34, when an accused is
convicted under Section 302 read with Section 34, in law it
means that the accused is liable for the act which caused
death of the deceased in the same manner as if it was done
by him alone. The provision is intended to meet a case in
which it may be difficult to distinguish between acts of
individual members of a party who act in furtherance of the
common intention of all or to prove exactly what part was
taken by each of them. As was observed in Chinta Pulla
Reddy v. State of A.P. Section 34 is applicable even if no
injury has been caused by the particular accused himself.
For applying Section 34 it is not necessary to show some
overt act on the part of the accused."
46. According to the prosecution version, after the altercation between the
deceased and the Appellants at Lado Sarai T point, the deceased
proceeded further on Anuvrat Marg and the five boys on their motor
cycles followed him. The deceased got down from his car while holding a
danda in his hand. The five boys also got down from their respective
motor cycles. There was a scuffle between the deceased and these five
boys. The deceased gave danda blows to the boys. Two of the boys
inflicted helmet blows on the head of the deceased whereas the third one
snatched the danda and gave danda blows on the head of the deceased.
The two boys on the Splendor lifted a big stone lying nearby on the
pavement and hit it on the head of the deceased.
47. It is evident that the five boys were unarmed whereas the deceased was the
aggressor who took out the danda from his car simply because the bumper
of his car was struck by one of the motor cyclists. It was he who started
the attack by giving them danda blows. The Trial Court relied upon
Pandu Rao v. State of Hyderabad, AIR 1955 SC 216 where it was held as
under:-
"The plan need not be elaborate, nor is a long interval of
time required. It could arise and be formed suddenly, as for
example when one man calls on bystanders to help him kill
a given individual and they, either by their words or their
acts, indicate their assent to him and join him in the
assault. There is then the necessary meeting of the minds.
There is a pre-arranged plan however hastily formed and
rudely conceived."
48. The Trial Court held that the common intention which initially was merely
to teach a lesson to the deceased progressed into common intention to
cause serious injuries after the deceased came out with his danda from the
car. We do agree that there may have been a common intention to teach
the deceased a lesson who himself was an aggressor or to cause serious
injuries on his person as he (the deceased) himself had given danda blows
to the five boys. It was stated by PW-22 in his cross-examination that it
took one or two minutes for the first incident (Lado Sarai T point where
altercation took place) and one/two minutes for the second incident. True,
common intention can develop at the spot or on the spur of moment. Even
if, the prosecution version given in the FIR is admitted as it is, in our view,
there was no common intention to cause any injury till the deceased got
down and gave danda blows to the five boys. Thereafter, the acts of the
assailants were spontaneous. At the most there could be common
intention to cause serious injuries on the person of the deceased but there
was no common intention to cause injuries with the intention or
knowledge to cause death of the deceased.
49. Therefore, the three Appellants Sandip, Rakesh and Chandan could not be
fastened with the vicarious liability of committing murder with the aid of
Section 34 IPC. Even if, the prosecution case is accepted as it is, they
could have been held guilty for the offence punishable under Section 325
read with section 34 IPC.
50. It is argued by the learned counsel for the Appellants that no injury was
caused on the person of the deceased by any big stone as is the case of the
prosecution. The learned counsel cited several reasons for the same.
51. We have been taken through the report of the crime team Ex.PW-11/A.
The crime team was summoned to the spot by the IO after recording
statement Ex.PW-9/A of Mohd. Sagir wherein he had disclosed the
injuries inflicted with the stone on the person of the deceased. According
to the report Ex.PW-11/A the crime team made an inspection between
12:45 A.M. to 1:20 A.M. The presence of any stone is absent in the report.
According to the IO and SI Aishvir Singh the stone was seized from the
spot along with the other articles just after 2:10 A.M. The two stones/roda
having blood stains were kept in separate white plastic bags were
converted into two packets, sealed with the seal of „PS‟ and seized by
memo Ex.PW-12/D. All these articles were deposited in Police Post Saket
at 3:30 A.M. A perusal of register No.19, Ex.PW-15/A however reveals
that the blood stained stone was deposited after the helmets, blood stained
danda, blood stained clothes of the accused persons (which were
recovered at the instance of some of the Appellants at 3:00 P.M.) and box
containing viscera were deposited on 17.07.2007.
52. This is not the end of the matter. PW-2 and PW-9A the two public
witnesses, who according to the prosecution witnessed the occurrence,
returned to the spot from AIIMS along with the IO. Though, PW-9A
Mohd. Sagir is a witness to the seizure of blood, blood stained earth,
Splendor motor cycle, blood stained shoes of the deceased and blood
stained seat cover of the Maruti Zen Car (belonging to the deceased)
which are Exs. PW-9/C, PW-9/D, PW-9/E and PW-9/F respectively, he is
not a witness to the recovery of the blood stained roda and stone Ex.PW-
12/B and Ex.PW-12/C respectively. This shows that the stone and the roda
were not seized in presence of PWs 2 and PW9A.
53. The autopsy on the dead body was performed by Dr. B.L. Choudhary on
17.07.2007 and the Post Mortem report was immediately made available.
The big stone in a sealed bag was produced before PW-24 for his opinion
only on 21.08.2007. PW-24 gave the dimensions of the stone as 40 cms x
cms x 21 cms and to be of an irregular shape. The doctor further opined
that injuries No.1,2,3,4,5 and 6 were possible by impact of this stone. The
stone Ex.PW12/1 was seized from the spot in the wee hours of 17.07.2007
this would have been shown to the doctor either before the post mortem or
immediately thereafter. The fact that the IO waited for over a month to
produce the big stone Ex.PW-12/1 before PW-24 makes the recovery in
the manner alleged by the prosecution doubtful.
54. In view of the reasons recorded above, the contention raised on behalf of
the Appellants that the big stone Ex.PW-12/1 was subsequently planted
cannot be easily brushed aside.
55. The Danda Ex.P-12/5 is alleged to have been recovered at the instance of
Appellant Chandan from near the petrol pump in pursuance of the
disclosure statement Ex.PW-12/S purported to have been made by
Appellant Chandan. According to the prosecution version, the Appellants
including the Appellant Chandan ran away after inflicting injuries on the
person of deceased. PWs 2, 9A and 22 chased the Appellants in order to
catch them. If danda was thrown by Appellant Chandan, it must have been
noticed by PWs 2, 9A and 22. In any case, the danda Ex.P-12/5 could not
have been hidden by the Appellant Chandan. The recovery of danda at
the behest of the Appellant Chandan therefore cannot be believed.
56. In this view of the matter, Appellants Murari and Suresh cannot be held
liable for committing murder of the deceased either individually or
collectively with the aid of Section 34 IPC.
57. On filing appeal being Criminal Appeal No.139/2011 an application was
moved by the Appellant Rakesh claiming himself to be a juvenile on the
date of the commission of the offence. A plea with regard to juvenility
can be raised at any stage and even in Appeal. (Jyoti Prakash Rai v. State
of Bihar, AIR 2008 SC 1696; Pratap Singh v. State of Jharkhand, AIR
2005 SC 2731; Gurpreet Singh v. State of Punjab,2005 (12) SCC 615;
Jitender Ram v. State of Jharkhand, 2006 (9) SCC 428; Rajnit Singh v.
State of Haryana 2008 (9) SCC 453). By order dated 03.02.2011, this
Court directed an enquiry to be conducted by the Trial Court. As per the
report dated 01.03.2011, Appellant Rakesh was 17 years and 24 days on
the date of the commission of the offence. Thus, he was a juvenile on the
date of the commission of the offence and, therefore, could not have been
tried by any Court. On the other hand, only an inquiry could have been
conducted by the Juvenile Justice Board under Section 14 of Juvenile
Justice Act of 2000.
58. Since we have already taken a view that the case against the Appellants
including the juvenile is not free from doubts, we do not, therefore,
consider appropriate to remit the case of the Appellant Rakesh to the
Juvenile Justice Board for inquiry under Section 14 of the Juvenile Justice
Act of 2000.
59. In view of foregoing discussion, we are of the view that there are grave
and serious doubts in the prosecution version. The learned Additional
Sessions Judge fell into error in convicting the Appellants under Section
302 read with Section 34 IPC. The Appeals have to succeed. Accordingly,
we set aside the judgment and order of the Trial Court and acquit the
Appellants of the charge framed against them. Their personal bonds and
surety bonds are discharged. They are ordered to be set at liberty.
(G.P. MITTAL)
JUDGE
(S. RAVINDRA BHAT)
JUDGE
APRIL 28, 2011
sa/vk
