Delhi High Court
Virender Pal @ Neelu & Anr. vs State on 22 March, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 11th March, 2011
Judgment Delivered on:22nd March, 2011
+ CRL.A.30/1999
VIRENDER PAL @ NEELU & ANR. ..... Appellants
Through: Mr.Ajay Marwah, Advocate with
Mr.Sumit Sinha, Advocate
Versus
STATE .....Respondent
Through: Mr.Pawan Sharma, Standing
Counsel (Crl.) with Mr.Harsh
Prabhakar, Advocate
CRL.A.132/1999
JITENDER @ VICKY ..... Appellant
Through: Mr.Ajay Marwah, Advocate with
Mr.Sumit Sinha, Advocate
Versus
STATE .....Respondent
Through: Mr.Pawan Sharma, Standing
Counsel (Crl.) with Mr.Harsh
Prabhakar, Advocate
CRL.A.185/1999
BRIJ PAL @ KARATE ..... Appellant
Through: Mr.Ajay Marwah, Advocate with
Mr.Sumit Sinha, Advocate
Versus
STATE .....Respondent
Through: Mr.Pawan Sharma, Standing
Counsel (Crl.) with Mr.Harsh
Prabhakar, Advocate
Crl.A.No.30/99 & connected matters Page 1 of 30
CRL.A.234/1999
SANJAY SHARMA ..... Appellant
Through: Mr.Ajay Marwah, Advocate with
Mr.Sumit Sinha, Advocate
Versus
STATE .....Respondent
Through: Mr.Pawan Sharma, Standing
Counsel (Crl.) with Mr.Harsh
Prabhakar, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. Vide impugned judgment and order dated 30.11.1998,
appellants Virender Pal @ Neelu, Sat Pal @ Pappu, Sanjay
Sharma, Brij Pal @ Karate and Jitender @ Vickey as also one
Raj Kumar @ Raju who died during the pendency of the appeal
filed by him have been convicted for the offence of having
murdered Surender @ Buddha (hereinafter referred to as the
„Deceased‟), for which offence they have been sentenced to
undergo imprisonment for life and pay fine in sum of `5,000/-
each; in default to undergo rigorous imprisonment for one
year. Appellant Sat Pal has also been convicted for the offence
of having attempted to murder Arvind, for which offence he
has been sentenced to undergo rigorous imprisonment for 10
years and pay fine in sum of `2,000/-; in default to undergo
rigorous imprisonment for 4 months. Appellants Sat Pal,
Virender and Brij Pal have also been convicted for the offence
of having been in possession of firearms in contravention of
Section 5 of Arms Act 1959, for which offence they have been
sentenced to undergo rigorous imprisonment for 10 years. Co-
accused Raj Kumar has also been convicted for the offence of
having possessed firearms in contravention of Section 5 of
Arms Act 1959, for which he has been sentenced to undergo
rigorous imprisonment for 1 year. It may be noted that Raj
Kumar died during the pendency of the appeal and hence qua
him the appeal filed by him stood disposed of as having
abated.
2. Case of the prosecution is that Hari Om, son of Om
Prakash PW-16, was involved in the murder of Gurcharan
Singh, an associate of appellant Sat Pal, due to which reason
Sat Pal was inimically disposed towards the family of Om
Prakash. On 14.07.1993 at about 07.45 P.M. appellants and Raj
Kumar came to the street where the house of Om Prakash was
located and inflicted 19 stab wounds with knives and daggers
on the body of the deceased, second son of Om Prakash, and
fled. Om Prakash PW-16, the father of the deceased had
witnessed the incident.
3. Needless to state the case of the prosecution hinged
upon the veracity and credibility of Om Prakash PW-16.
4. Criminal law was set into motion when around 08.10 P.M.
on 14.07.1993, DD Entry No.20A, Ex.PW-9/A, was recorded by
HC Lakhapat Singh PW-9, to the effect that a wireless
information has been received informing that a quarrel is
taking place in front of the shop of Dr.Bhola in Mohalla Mehram
in Shahdara. On receiving the information about the incident,
ASI Partap Singh PW-3, Const. Mohan Lal PW-14 and SI Dinesh
Kumar PW-18, went to the clinic of Dr.Bhola where they learnt
that the deceased and Arvind have been removed to GTB
hospital.
5. Leaving Ct.Mohan Lal PW-14, at the place of occurrence,
SI Dinesh Kumar PW-18 and ASI Partap Singh PW-3, proceeded
to GTB hospital where they were informed that the deceased
has been brought dead as noted in the MLC Ex.PW-26/C and
that Arvind is not fit to give a statement to the police as noted
in the MLC Ex.PW-26/A. The relevant portion of the MLC Ex.PW-
26/C of the deceased reads as under:-
"Name of relative or friend: B/by Suraj Singh
s/o Gopal Singh
....
Date and hour of arrival: 14/7/93 8.45 pm"
6. The relevant portion of the MLC Ex.PW-26/A of Arvind
reads as under:-
"Name of relative or friend: B/by Jitender Singh
s/o (Illegible)
....
Date and hour of arrival: 14/7/93 9.35 P.M.
....
Pt not fit for statement at 9.35 P.M. on 14/7/93
.....
Injury:-
1. Stab wound about 6 cm above the umbilicus
and 2 cm x 1 cm in size. Omentum protruding out.
.....
Name of injuries: Stab Injury Abdomen
Simple, Grievous or dangerous: Dangerous
The kind of weapon used.... Sharp Weapon"
7. Thereafter SI Dinesh Kumar PW-18 and ASI Partap Singh
PW-3, met Om Prakash PW-16, at the hospital who claimed to
have witnessed the incident. SI Dinesh Kumar recorded the
statement Ex.PW-16/A of Om Prakash and made an
endorsement Ex.PW-18/A thereunder, and at around 10.00
P.M. forwarded the same to the police station through ASI
Partap Singh PW-3, for registration of an FIR. ASI Partap Singh
took the endorsement Ex.PW-18/A to the police station where
SI Chhaila Ram PW-5, recorded the FIR No.224/93 at 10.50
P.M. on 14.07.1993.
8. In his statement Ex.PW-16/A, Om Prakash stated that he
resides in a house bearing Municipal No.6/57, Mohalla Mehram,
Shahdara and is engaged in the business of supplying books
published by Kathuria publications. He has 4 sons and one son
Hari Om is lodged in jail in connection with a case of murder.
Hari Om and Sat Pal were inimically disposed towards each
other since a very long time. Sat Pal had extended threats to
him on various occasions that since Hari Om had murdered his
associate Gurcharan Singh he would take revenge from his
family. Today, at about 07.00 P.M. he was sitting on the stairs
of the dispensary situated opposite to his house when Vickey
who runs a motorcycle repair shop, accompanied by Sanjay
came there on a motorcycle. Vickey was driving the
motorcycle and Sanjay was sitting on the pillion seat. Vickey
enquired from him about the whereabouts of his son Om
Prakash and he told him that his son was not present. Vickey
told him that he has some work with his son regarding some
committee and thereafter Vickey and Sanjay went away. At
about 07.45 P.M. Sanjay and Vickey returned on the
motorcycle by which time his son who was wearing a vest and
underwear came out of his house. Vickey pointed towards his
son and told Sanjay that this was the brother of Hari Om.
Immediately Sat Pal @ Pappu and his brother Neelu, Brij Pal @
Karate who is a bad character of Gandhi Nagar and Raju who is
a resident of Babar Pur came from the other side. Sat Pal
exhorted to murder his son upon which Raju and Sanjay
caught hold of his son and Sat Pal and his brother Neelu as
also Brij Pal @ Karate stabbed his son with knives. He raised
an alarm upon which his nephew Arvind @ Bobby came there.
When he and Bobby tried to save his son Sanjay inflicted a
knife blow on the person of Arvind and thereafter all fled away.
The accused had visited his locality on various occasions. His
son and Arvind who were smeared with blood were removed to
GTB Hospital.
9. After recording the statement Ex.PW-16/A of Om Prakash,
SI Dinesh Kumar PW-18, returned to the place of occurrence.
In the meantime, Insp.HPS Cheema PW-18, also reached the
place of occurrence where he saw blood lying in front of house
bearing Municipal No.6/40 situated in the street where the
dispensary is located. Insp.HPS Cheema lifted the blood
sample, blood stained earth and earth control from the said
spot and seized the same vide memos Ex.PW-14/A and Ex.PW-
14/B respectively. Insp.HPS Cheema prepared the rough site
plan Ex.PW-27/A of the place of occurrence; recording therein,
points „A‟ and „C‟ being the spots where the deceased was
stabbed by the accused and from where Om Prakash
witnessed the incident respectively.
10. Since the deceased was brought dead at the hospital, his
body was sent to the mortuary of GTB hospital where Dr.Anil
Kohli PW-10, conducted the post-mortem at about 02.00 P.M.
on 15.07.1993 and gave his report Ex.PW-10/A, which records
that 19 external anti-mortem injuries were found on the
person of the deceased. Out of the said nineteen injuries, 5
injuries were found on the frontal region of the upper half of
the body of the deceased, 3 injuries were found on the frontal
region hands and arms of the deceased, 2 injuries were found
on the frontal region of the lower body of the deceased, 3
injuries were found on the posterior region of the upper half of
the body of the deceased, 2 injuries were found on the
posterior region of the hands and arms of the deceased and 3
injuries were found on the posterior region of the lower half of
the body of the deceased respectively. The injuries found on
the frontal region of the upper half of the body of the deceased
are as under:-
"1. Incised stab wound 2.3 cm x 0.3 cm
horizontally placed over right side of front of
abdomen. Inner angle being 9 cms to the right of
mid line and upper margin is 3 cm below lower
border of ribcage. It is spindle shaped with clean
cut margins and one angle of the wound is more
acute than the other. On dissection the wound is
terminating on entering the abdominal cavity.
Hemorrhages present along the track of the wound.
The direction of the wound is going downwards and
posteriorly. Depth of the wound is 5.5 cm.
2. Incised stab wound measuring 2cm x 4 cm
present over outer aspect of right side of chest,
horizontally placed, inner angle is 9 cm to the right
of right nipple and upper margin is 14 cm below
anterior axillary fold. It is spindle shaped with clean
cut margins and one angle of the wound is more
acute than the other. On dissection the track of the
wound is subcutaneous throughout with
hemorrhages along track of the wound. Its direction
is upwards and posteriorly and the depth of the
wound is 4 cm.
3. Incised wound measuring 1.3 cm x 0.6 cm x
0.3 cm placed 4 cm lateral to injury No.11, over
outer aspect of right side of chest.
4. Incised stab wound measuring 3 cm x 0.4 cm
present over right side front of chest. It is obliquely
placed with inner margin being 11 cm to the right of
midline and upper angle being 3.5 cm below lower
border of lateral end of clavicle. It is spindle shaped
with clean cut margins and one angle of the wound
is more acute than the other. On dissection there is
hemorrhage and extravascation of blood along the
track of the wound. The axillary artery and vein are
cut. Large blood clots can be seen around the
affected site. (Chest wall containing about 800 ml of
blood and blood clots). The direction of the track of
the wound is going backwards (posteriorly),
medially and upwards. Total depth is 7.5. cm.
5. Incised wound measuring 1.8 cm x 0.4 cm x
0.8 cm placed 0.4 cm over injury No.6, over right
side front of chest."
11. The injuries found on the frontal region of the hands and
arms of the deceased are as under:-
"1. Incised wound measuring 5.5 cm x 0.6 cm x
0.4 cm present over inner aspect of left forearm,
vertically placed, upper angle being 3.5 cm below
the elbow joint. Tailing present for a distance of 1.2
cm from the lower angle of the wound vertically.
2. Incised stab wound measuring 4 cm x 0.6 cm
present over front of left arm, placed 7 cm above
the elbow joint. It is spindle shaped with clean cut
margins and one angle of the wound is more acute
than the other. On dissection there is hemorrhage
and extravascation of blood along the track of the
wound. The track is cutting the muscles of the arms
and its direction is going upwards, medially and
posteriorly. Total depth of the wound is 6 cm.
3. Incised wound measuring 2 cm x 0.6 cm x 0.4
cm vertically placed over front of right arm, 8 cm
above the elbow joint."
12. The injuries found on the frontal region of the lower body
of the deceased are as under:-
"1. Incised wound vertically placed over inner
aspect of right leg measuring 2.8 cm x 0.4 cm x 1
cm, upper angle being 7 cm below the knee joint.
2. Red abrasion measuring 2 cm x 1 cm present
over outer aspect of left knee joint."
13. The injuries found on the posterior region of the upper
half of the body of the deceased are as under:-
"1. Red colored abrasion measuring 1 cm x 0.6
cm over centre of back, placed 20 cm below nape
of neck.
2. Incised wound measuring 3.5 cm x 0.6 cm x
2.5 cm present over right side back of chest, inner
angle being 14 cm to the right of midline and upper
margin being 16 cm below tip of shoulder. It is
horizontally placed."
14. The injuries found on the posterior region of hands and
arms of the deceased are as under:-
"1. Incised wound measuring 3 cm x 0.2 cm x 1
cm placed over outer aspect of left index finger of
hand.
2. Incised wound measuring 4 cm x 0.6 cm x 0.4
cm, vertically placed over outer aspect of right arm,
1cm above the elbow joint.
3. Incised wound measuring 2.1 cm x 0.4 cm
present over outer aspect of right arm, placed 11
cm below tip of shoulder, with clean cut inverted
margins and one angle of the wound more acute
than the other. The track of wound is exiting from
inner aspect of right arm making an exit wound of
1.8 cm x 0.4 cm with clean cut inverted margins.
There is hemorrhage and extravascation of blood
along the track of the wound. The direction of the
wound is downwards, medially and anteriorly. The
wound is cutting the muscles of the arm and total
depth of the wound is 5 cm."
15. The injuries found on the posterior region of the lower
half of the body of the deceased are as under:-
"1. Incised wound measuring 1.7 cm x 0.4 cm x
0.5 cm present over right buttock, placed 16 cm to
right of glutted cleft and 26 cm below the tip of hip
bone.
2. Incised wound measuring 2.2 cm x 0.8 cm x
0.6 cm present over back of right thigh placed 26
cm above the right knee joint.
3. Incised wound measuring 1.5 cm x 0.6 cm x
0.5 cm placed over centre of back of left thigh,
situated 12.5 cm above the knee joint."
16. The post-mortem report Ex.PW-10/A of the deceased further
records that the cause of death of the deceased was shock due to
hemorrhage produced as a result of ante-mortem injuries found on
the person of the deceased, which injuries were caused by a sharp
edged weapon. That injury No.4 found on the frontal region of the
upper half of the body of the deceased was sufficient to cause
death of the deceased in the ordinary course of nature,
independently as also collectively with other injuries.
17. Since the stated eye-witness; namely, Om Prakash PW-16,
had indicted the appellants and Raj Kumar of having murdered the
deceased, the police set out to apprehend them.
18. On 16.07.1993 a police team consisting of Insp.HPS Cheema
PW-27, HC Dev Karan PW-12 and SI Dinesh Kumar PW-18,
apprehended Jitender @ Vickey and interrogated him and recorded
his confessional statement, contents whereof are not being noted
as the same is inadmissible in evidence but would highlight that no
recovery was made pursuant thereto.
19. On 31.07.1993 a police team consisting of HC Jamaluddin PW-
15, Ct.Subash Chand PW-21 and SI Niranjan Singh PW-24,
apprehended Virender and upon persona search a dagger was
recovered from the dub of his pant which was seized vide memo
Ex.PW-15/B. On 05.08.1993 a police team consisting of Insp.HPS
Cheema PW-27, Ct.Subash Chand PW-21 and SI Niranjan Singh PW-
24, apprehended Raj Kumar @ Raju and a dagger was recovered
from the dub of his pant which was seized vide memo Ex.PW-21/C.
20. On the same day i.e. 05.08.1993 Insp.HPS Cheema PW-27,
recorded the statement of Arvind under Section 161 Cr.P.C. wherein
he also indicted the appellants and Raj Kumar as the assailants of
the deceased.
21. On 22.08.1993 a police team consisting of ASI Mahmood Ali,
Ct.Subash Chand PW-21, Inspector Ashok Kumar PW-22 and
Inspector Vinod Kumar PW-23 apprehended Sat Pal and Sanjay and
recorded their disclosure statements Ex.PW-22/B and Ex.PW-22/A
respectively and disclosed that they can get recovered the daggers
used by them to commit the crime pursuant whereto they led HC
Jamluddin PW-15 and SI Niranjan Singh PW-24 to a forest and got
recovered 2 daggers buried in the ground which were seized vide
Ex.PW-15/E and Ex.PW-15/F respectively. On 01.09.1993 a police
team consisting of SI Niranjan Singh PW-24 and Insp.HPS Cheema
PW-27, apprehended Brij Pal @ Karate who made a disclosure
statement Ex.PW-24/B and stated that he can get recovered the
knife used by him for murdering the deceased pursuant whereto he
led Insp.HPS Cheema PW-27, HC Jamaluddin PW-15 and SI Niranjan
Singh PW-24, to a place where some scrap was lying and got
recovered a knife hidden in the scrap which was seized vide memos
Ex.PW-15/H.
22. On 05.10.1993 HC Balbir Singh PW-4, a draftsman, was taken
to the place of occurrence by Insp.HPS Cheema PW-27, where at the
instance of Om Prakash PW-16, he prepared the site plan to scale
Ex.PW-4/A.
23. On 09.10.1993 the knives and daggers recovered at the
instance of the accused were sent to Dr.Anil Kohli PW-10, for his
opinion regarding weapon of offence. Vide his opinions Ex.PW-10/B
and Ex.PW-10/D Dr.Anil Kohli opined that none of the injuries found
on the person of the deceased are possible to have been caused by
the daggers recovered at the instance of Sat Pal and from the
possession of Raj Kumar respectively. Vide his opinions Ex.PW-10/C,
PW-10/E and PW-10/F Dr.Anil Kohli opined that some of the injuries
found on the person of the deceased are possible to have been
caused by the dagger and knife recovered at the instance of Sanjay
and Brij Pal.
24. The knives and daggers recovered at the instance or from the
possession of the accused were sent to Central Forensic Science
Laboratory for serological examination. Vide CFSL report Ex.PW-
27/D, it was opined that blood was not detected on the said knives
and daggers.
25. Armed with the aforesaid materials, the police filed a charge
sheet under Sections 302 and 307 IPC read with Section 34 IPC,
Sections 147, 148 and 149 IPC and Sections 25, 27, 54 and 59 of
Arms Act, 1959.
26. Needless to state, the appellants and Raj Kumar were sent for
trial. Notwithstanding the facts that besides other charges the
charge sheet was laid under Sections 147, 148 and 149 IPC and that
the offenders were 6 in number, the learned Trial Judge did not
frame charges pertaining to offences relating to unlawful assembly
and proceeded to frame charges for offences punishable under
Section 302 IPC. Section 307 IPC. Both read with Section 34 IPC.
Additionally against Sanjay, Raj Kumar, Brij Pal, Virender and Sat Pal
charges were framed under the Arms Act.
27. Apart from examining the police officers associated with the
investigation, the prosecution examined HC Balbir Singh, SI Chhaila
Ram, Ct.Sansar Singh, Om Prakash and Insp.HPS Cheema as PW-4,
PW-5, PW-6, PW-16 and PW-27 respectively.
28. HC Balbir Singh PW-4, deposed that on 05.10.1993 he
prepared the site plan to scale of the place of occurrence at the
instance of Om Prakash. On being questioned about the house
bearing Municipal No.6/40 he stated that:- (Quote) „House no.6/40
Mohalla Maha Ram has not been shown by me in site plan Ex.PW-
4/A. I have shown the position of blood at point „K‟ in front of house
no.6/50....I was not told by any person that blood was lying in front
of house no.6/40. It is wrong to say that I have wrongly shown the
place of blood in plan Ex.PW-4/A in front of house no.6/50 since
showing of blood in front of house no.6/40 was against the story of
prosecution and that the site plan is not prepared as per the correct
version‟.
29. SI Chhaila Ram PW-5, deposed that he registered the FIR
No.224/93 on 14.07.1993 and that he forwarded the copy of the FIR
to the Area Magistrate and senior police officials through Ct.Krishan
Kumar immediately after the registration of the FIR. Be it noted here
that save and except appellant Raj Kumar the evidence of the
witness was not controverted by the other appellants. Be it further
noted here that no suggestion was given to the witness on behalf of
appellant Raj Kumar that the FIR was ante-timed.
30. Ct.Sansar Singh PW-6, deposed that he was posted as Duty
Constable at GTB hospital on 14.07.1993. On 14.07.1993 at about
08.45 P.M. the deceased was brought to GTB hospital by one Soraj
s/o Gopal.
31. Om Prakash PW-16, the father of the deceased, deposed on
the lines of his statement Ex.PW-16/A. Additionally, he deposed that
in October 1993 a draftsman came to his house and prepared the
site plan to scale Ex.PW-4/A of the place of occurrence at his
instance. He told the draftsman that the murder of the deceased
had taken place at a house, the old and new municipal numbers
whereof are 6/40 and 6/50 respectively. On being questioned about
the house wherefrom the police lifted the blood, he stated that:-
(Quote) „It is correct that house nos. given in these two memos from
where samples were lifted are correct as being 6/40 voltd. The new
no. of this house 6/40 is 6/50.‟ On being questioned about the clinic
of Dr.Bhola he stated that:- (Quote) „Dr. Bhola‟s clinic was 15-20
feet away from the place of occurrence‟. On being questioned about
the removal of the deceased and Arvind to the hospital he stated
that:- (Quote) „Budda was removed from the spot by me, Mahesh,
Swaraj Vinod Guatam in Vinod Gautam‟s car to GTB hospital. Injured
Bobby was also taken in the same vehicle.....Injured Arvind was also
taken in the Casulity at the time my son was taken. The Doctor had
started examining Arvind and my son Buddha on being taken inside
the casuality.....Injured Arvind was left in the Casulity at about 8.45
p.m. but I do not know at what time he was admitted in the
hospital....A duty constable had come outside the Casulity and had
enquired as to who had been brought by whom. That constable did
not ask any specific person about this fact. I told that constable that
I brought the injured persons there. This happened almost the same
time when we reached outside the Casulity. I had told that
constable that the injured persons had been stabbed but I had not
given the names of the assailants. On being questioned about his
son Hari Om he stated that:- (Quote) „My son Hari Om was an
accused in a case regarding murder of Gurcharan Singh...Gurcharan
and Sat Pal were not related to each other. Voltd. They were
friends....It is correct that my son Hari Om is in jail today as an
accused for the murder of mother of Sat Pal.‟ On being questioned
about the fact that whether the blood was oozing out from the
injuries of the deceased and Arvind at the time when they were
removed to the hospital he stated that:- (Quote) „I cannot say
whether blood was coming out or not from the injuries of the injured
persons when they were put in the van however, there was
sufficient blood on their clothes.‟
32. Insp.HPS Cheema PW-27, deposed that he had conducted the
investigation of the present case. On being questioned about the
factum of lifting of blood from the place of occurrence he stated
that:- (Quote) „Sample of blood, blood stained earth and earth
control were lifted from in front of house no 6/40, Mohalla Maharan.‟
33. It may be noted that Arvind was cited as a witness by the
prosecution and in spite of various court summons and notices
issued to him to appear and give evidence, his testimony could not
be recorded during the trial inasmuch as he could not be located by
the police.
34. When examined under Section 313 Cr.P.C. the appellants
pleaded innocence and false implication. Appellant Jitender @
Vickey stated that Om Prakash has falsely implicated him in the
present case as he was inimically disposed towards him. Appellants
Sanjay and deceased accused Raj Kumar @ Raju stated that SI
Niranjan Singh has falsely implicated them in the present case as he
was inimically disposed towards them. Appellants Sat Pal and
Virender @ Leelu stated that Om Prakash has falsely implicated
them in the present case as his sister and brother-in-law had lodged
a criminal case against the son of Om Prakash.
35. In defence, the appellants examined Farooq Hussain, UDC,
House Tax Department, MCD. He deposed that the municipal
number 6/49-50 has not been changed since the year 1958.
36. Believing the testimony of Om Prakash PW-16, to be
creditworthy and holding that the fact that the knives and daggers
recovered from the possession of/at the instance of the appellants
when seen in the light of the post-mortem report Ex.PW-10/A of the
deceased which records that the injuries found on the person of the
deceased were caused by sharp edged weapon and the opinion
Ex.PW-10/C, Ex.PW-10/E and PW-10/F of Dr.Anil Kohli that some of
the injuries found on the person of the deceased are possible to
have been caused by the dagger and knife recovered at the
instance of appellants Sanjay and Brij Pal and the knife recovered
from the possession of deceased accused Raj Kumar respectively
lends support to the case set up by the prosecution against the
appellants, vide judgment dated 30.11.1998 the learned Trial Judge
has convicted the appellants and Raj Kumar.
37. At the hearing of the appeal, learned counsel for the
appellants advanced following 6 submissions:-
A. Firstly that Om Prakash, even as per his testimony was
inimical towards the appellants and thus unless corroborated by
some witness, the conviction could not be sustained on his sole
testimony. Additionally, it was submitted that his conduct did not
inspire any confidence on his being an eye witness. Reference to
his conduct wherefrom it could be inferred that he was not an eye
witness was his not receiving any injury and the submission was
that being the father of the deceased his instinctive reaction would
be to save his son and this would have resulted in his sustaining
some injury. Secondly that the MLCs Ex.PW-26/C and Ex.PW-26/A of
the deceased and Arvind respectively show the two to be brought to
the hospital by other persons and not Om Prakash and the
submission urged was that this shows Om Prakash not even
accompanying his son to the hospital, trashing his claim of
removing his son to the hospital, it is further urged that had he
done so, his clothes would have been smeared with blood and
admittedly the investigating officer has not seized them, wherefrom
counsel would urge that it was obvious that they were not smeared
with blood and stated that had they been so, the investigating
officer would have seized them. His claim of informing the duty
constable at GTB hospital of having brought his son and Arvind to
the hospital was contradicted by the testimony of Ct.Sansar Singh
PW-6. Counsel highlighted that the MLC Ex.PW-26/C of the
deceased records the deceased being admitted in the hospital at
8:45 PM and the MLC Ex.PW-26/A of Arvind records his being
admitted at the hospital at 9:35 PM and this falsifies Om Prakash‟s
claim of having removed both to the hospital. In a nut shell, the
submission was that not only conduct but even the exaggerated
claim of Om Prakash rendered him unworthy of any credence.
B. The second submission advanced by the learned counsel for
the appellants was that there are serious discrepancies in the
evidence on record regarding the place of occurrence, which in turn
raises considerable doubt on the claim of Om Prakash of having
witnessed the incident in question. The first discrepancy pointed out
by the learned counsel was that the DD entry Ex.PW-9/A records
that a quarrel was taking place in front of shop of Dr.Bhola whereas
as per Om Prakash PW-16, the occurrence took place in front of his
house. The second discrepancy pointed out by the learned counsel
was that as per site plan to scale Ex.PW-4/A the occurrence took
place in front of the house bearing Municipal No.6/50 whereas the
seizure memos Ex.PW-14/A and Ex.PW-14/B records that the blood
was lifted by the police from front of the house bearing Municipal
No.6/40 suggesting thereby that the occurrence took place in front
of the said house. Counsel submitted that the aforesaid discrepancy
between the site plan to scale Ex.PW-4/A and the seizure memos
Ex.PW-14/A and Ex.PW-14/B gets confounded by the fact that
neither of the two houses nor the spot from where the police lifted
the blood were shown in the rough site plan Ex.PW-27/A of the place
of occurrence. Counsel submitted that the occurrence took place in
front of house bearing Municipal No.6/40 and since the same ran
contrary to the story of the prosecution inasmuch as Om Prakash
could not have witnessed the incident in question while sitting on
the stairs of the dispensary for the said house was situated in the
rear side of the dispensary the police introduced the house bearing
Municipal No.6/50 in the site plan to scale Ex.PW-4/A. Counsel lastly
submitted that the fact that the deposition of Om Prakash that the
municipal number 6/40 was changed to 6/50 ran contrary to the
evidence of Farooq Hussain DW-1, lends credence to the claim of
the defence that the occurrence took place in front of house bearing
Municipal No.6/40.
C. The third submission advanced by the learned counsel for the
appellants was that in the complaint Ex.PW-16/A an insertion has
been made pertaining to the motive which is evident by the fact
that as against the normal space in all the preceding lines, in
between the last but third and fourth line, another line has been
inserted and from this counsel urges is proof of manipulation by the
Investigating Officer.
D. The fourth submission advanced by the learned counsel for
the appellants was that the statement of Arvind under Section 161
Cr.P.C. was recorded by the police after a considerable delay
inasmuch as the same was recorded about 15 days after the
happening of the incident in question.
E. The fifth submission advanced by the learned counsel for the
appellants was that an adverse inference needs to be drawn against
the prosecution for non-examination of Arvind in terms of
illustration (g) appended to Section 114 of Evidence Act that had
Arvind been examined he would not have supported the case of the
prosecution.
F. The sixth submission advanced by the learned counsel for the
appellants was that the only overt act attributed to appellant
Jitender @ Vickey was that he along with appellant Sanjay came to
the place of occurrence on two occasions on the date of the
occurrence and inquired about the whereabouts of the deceased
from his father Om Prakash. As per the counsel, in such
circumstances, it cannot be said appellant Jitender was sharing any
common intention with the other appellants to murder the
deceased, therefore, he ought not to have been convicted under
Section 302 IPC read with Section 34 IPC to murder the deceased.
38. Animosity is a double-edged weapon. It cuts both sides. It
could be a ground for false implication and could also be a motive
for committing the crime. The possibility that appellants Sat Pal and
Virender murdered the deceased who was the brother of Hari Om in
order to avenge the death of their mother and friend cannot be
ruled out.
39. Be that as it may, it is settled legal position that the testimony
of a witness cannot be disregarded merely on the ground that the
witness is inimically disposed towards the accused. The rule of
prudence requires the court to microscopically examine the
testimony of such a witness. (See the decision of Supreme Court
reported as Chandra Mohan Tiwari v State of MP 1992 CriLJ 1091).
Thus, we find no merit in the submission advanced by the learned
counsel for the appellants pertaining to Om Prakash having a
motive. Even if he had one, it was directed against Sat Pal and his
family and thus why would he falsely implicate others.
40. The submission advanced by the learned counsel for the
appellants predicated upon the conduct of Om Prakash PW-16, is
based upon an incorrect reading of the statement Ex.PW-16/A of
Om Prakash and his testimony. The statement Ex.PW-16/A of Om
Prakash categorically records that when Om Prakash and Arvind
tried to rescue the deceased from the clutches of the appellants,
appellant Sanjay inflicted a knife blow on the person of Arvind. It
has to be kept in mind that when Om Prakash deposed in Court he
gave his age to be 72 years. He deposed on 12.12.1997. The date
of the incident is 14.7.1993. It is apparent that Om Prakash was
aged 68 years when the incident took place and thus his not
actively participating in the rescue of his son is not unnatural
conduct. It has also to be kept in mind that his son was brutally
stabbed and it is not unknown for a parent to be stupefied and
hence standing dumb in such a situation. That the MLC of the
deceased and of Arvind record the names of different persons and
not Om Prakash as the ones who brought them to the hospital and
that if he had rescued his son and taken him to the hospital his
clothes would have been stained with blood and would have been
seized by the investigation officer are neither here nor there for the
reason it is apparent that Om Prakash, aged 68 years could not play
a very pro-active role. His son was murdered just outside their
house. It would be expected that the neighbours would come to
rescue after the assailants had fled. His son received 19 stab
wounds and obviously would be smeared in blood. He had
witnessed a brutal assault. Overcome by fear and handicapped by
age, it is obvious that he would permit the neighbours to do the
running around while he would be grieving. As regards the
discrepancy in the time of the deceased and Arvind being brought
to the hospital we may note that the number of MLC of Arvind is
46207/93 and that of the deceased bears No.46208/93. What
appears to be strange is that the preceding MLC records the time
9:35 PM when Arvind was brought and the succeeding MLC records
the time 8:45 PM when the deceased was brought. What has
happened is obvious. It was the deceased who was more serious
and it was he who received attention immediately. His MLC was
filled up. Arvind‟s MLC was filled up later. The doctor concerned,
looked at his watch when he filled up Arvind‟s MLC and forgetting
that he was filling up the same at a later point of time, recorded
Arvind‟s time of being brought at the hospital as the same time.
This is the only explanation which surfaces with reference to the
number of the two MLCs. Now, pertaining to the non-medical part
of an MLC, a doctor would be a little casual and whosoever
volunteers his name as the one who brought the victim, if more
than one persons have brought the victim to the hospital, would be
recorded by the doctor and this explains 2 different persons being
recorded as the ones who brought the deceased and Arvind to the
hospital. We find no question being asked to the IO whether he saw
blood stains on the clothes of Om Prakash. We see no questions
asked to Om Prakash whether or not his clothes were smeared with
blood. The argument advanced is premised that if Om Prakash had
rescued his son than his clothes would have been smeared with
blood and this would have been noted by the investigating officer
who would have seized the same and since the clothes were not
seized, walking backward it would be apparent that they were not
smeared with blood and walking further backward we reach the
stage that Om Prakash was never with his son. Since we have held
that the very premise itself is speculative, the further reasoning
would obviously be speculative. That apart, as held in the decision
reported as Gurunath Donkappa Kery vs. State of Karnataka (2009)
7 SCALE 482 an error on the part of the investigating officer is not
sufficient to discard the case of the prosecution.
41. We highlight that the DD entry No.22A, Ex.PW-9/A was
recorded at the police station at 8:10 PM. SI Dinesh Kumar PW-18
and ASI Pratap Singh PW-3 proceeded to the spot and there from
reached the police station. Om Prakash‟s statement Ex.PW-16/A
was recorded and as per the endorsement Ex.PW-18/A was sent to
the police station at 10:00 PM and the FIR, as deposed to by SI
Chhaila Ram PW-5 was registered at 10:50 PM. It is apparent that
Om Prakash had met the 2 police officers at the hospital. Nothing
has been shown to us that the FIR was ante-timed.
42. Pertaining to the alleged discrepancy pointed out by learned
counsel for the appellants in respect of the place of occurrence, it is
important to note that the eye-witness Om Prakash PW-16, as also
the police officials who had conducted the investigation in the
instant case have deposed that the clinic of Dr.Bhola was very close
to the place of the occurrence. There is a tendency among persons
to associate a particular place with a prominent landmark situated
near the said place for the purposes of identification. It is apparent
that the person who informed the police giving information of the
place of occurrence referred to Dr.Bhola‟s clinic as a landmark and
there-from it cannot be concluded that the crime took place near
Dr.Bhola‟s clinic and Om Prakash stood contradicted with reference
to DD No.20A.
43. In order to deal with the discrepancy pointed out by the
learned counsel for the appellants in the seizure memos Ex.PW-14/A
and Ex.PW-14/A and the site plan to scale Ex.PW-4/A, it is most
important to note the seizure memos Ex.PW-14/A and Ex.PW-14/B,
record that blood was lying in front of the house bearing Municipal
No.6/40 situated in the street where the dispensary is located. As
per the appellants, the house bearing Municipal No.6/40 was
situated at the rear side of the dispensary. When the house bearing
Municipal No.6/40 was situated at the rear side of the dispensary
there was no occasion for the author of the seizure memos Ex.PW-
14/A and Ex.PW-14/B to have described the said house in the said
memos as being situated in the street where the dispensary is
located is the argument. To that extent, there is a discrepancy in
the seizure memos Ex.PW-14/A and Ex.PW-14/B which has been
correctly discussed by the learned Trial Judge as a result of
inadvertence as recording house number to be 6/40 instead of 6/50.
It appears that Om Prakash has tried to overcome this discrepancy
by lying, but we find that his not telling the truth is on a minor point
and is obviously a blemish.
44. As regards less space being to be found in the statement
Ex.PW-16/A where motive stands attributed for the crime, it has to
be noted that the end of the page was nearing and so was the
narrative of the events and it is not uncommon for a writer to try
and squeeze a line or two extra towards the end of a page. We
have seen Ex.PW-16/A and find the same being scribed in the same
hand and the same pen. The scribe is SI Dinesh Kumar and we find
he not being cross-examined on the said point and thus in view of
the decisions reported as Rahim Khan vs. Khurshid Ahmed AIR 1975
SC 290 and State of UP vs. Anil Singh 1988 Suppl.(SCC) 686 hold
that the accused can derive no benefit there-from.
45. It is true that Arvind‟s statement under Section 161 Cr.P.C. has
been recorded very belatedly, but from Arvind‟s MLC we find that he
had received a stab wound and his omentum was protruding.
Omentum is a sheet of fat covered by the teritoneum i.e. a
membrane. Omentum is in two segments called greater omentum
and lesser omentum. The greater omentum is attached to the
bottom edge of the stomach and hangs down in front of the
intestines. The lesser omentum is attached to both edges of the
stomach and extends to under surface of the liver. The depth of the
stab wound received by Arvind is not on record, but the fact that his
omentum was protruding indicates that the wound was fairly deep.
It is possible that Arvind, who was surgically operated upon was
under heavy medication. We find no question put to either SI
Niranjan Singh PW-24 or Insp.H.P.S.Cheema PW-27 on the issue and
since the two were given no opportunity to explain the reason for
the delay, nothing adverse can be drawn from said fact. As regards
non-examination of Arvind shows that he was cited as a witness in
the charge-sheet filed and was served with a court summon to
appear as a witness. Order dated 19.4.1996 records his being
exempted to appear in Court due to medical reasons. Order dated
11.11.1997 shows an application filed by Om Prakash seeking police
protection as he apprehended danger to his life. Order dated
12.12.1997 also evidences said fact. Order dated 5.5.1998 records
SI Niranjan‟s Singh submission to the Court that he was unable to
catch hold of even Om Prakash. Order dated 5.8.1998 and 6.8.1998
show that Arvind became non-traceable. The file shows that Om
Prakash‟s statement could be recorded on 12.12.1997 only after he
was provided police protection. It is apparent that Arvind, fearing
danger to his life chose to run away from his house and make
himself not available.
46. The next question which needs determination is that whether
appellant Jitender can be attributed with the intention of murdering
the deceased.
47. Section 34 IPC does not create a substantive offence. It simply
states that if two or more persons intentionally do a thing jointly, it
is just the same as if each of them has done it intentionally. The
constructive liability under this Section would arise if following two
conditions are fulfilled: - (i) there must be a common intention to
commit a criminal act and (ii) there must be participation of all the
persons in doing of such act in furtherance of that intention.
Common intention requires a prior concert or pre-planning.
Common intention to commit a crime should be anterior in point of
time to the commission of the crime, but may also develop at the
instant when such crime is committed.
48. It is difficult, if not impossible, to procure direct evidence of
common intention. In most cases it has to be inferred from the act
and conduct of the accused persons and other relevant
circumstances of the case. This inference can be gathered by the
manner in which the accused arrived on the scene and mounted the
attack, the determination with which the injury was inflicted, the
concerted conduct of the accused persons during the commission of
the offence and subsequent to the commission of the offence. In
other words, intention has to be gathered from the acts of the
accused persons and the attendant relevant circumstances
enwombing the act. The totality of the circumstances must be taken
into consideration in arriving at the conclusion whether the accused
had a common intention to commit an offence with which he could
be convicted.
49. To determine the extent of culpability of appellant Jitender, we
proceed to analyze the evidence by recreating what had happened
on the date of the incident. The brother of the deceased Hari Om
was involved in the murder of one Gurcharan Singh who was the
associate of appellant Sat Pal and that appellant Sat Pal wanted to
take revenge from the family of Hari Om. On 14.07.1993 at about
07.00 P.M. appellants Jitender and Sanjay came to the place of
occurrence on a motorcycle driven by appellant Jitender and
appellant Jitender made inquiries from Om Prakash about the
whereabouts of the deceased upon which Om Prakash told him that
the deceased is not present there. After about 45 minutes
appellants Jitender and Sanjay again came to the place of
occurrence at which time the deceased came out of his house.
Appellant Jitender pointed towards the deceased and told appellant
Sanjay that the deceased is the brother of Hari Om. At that very
instance, appellant Raj Kumar, Sat Pal, Virender and Brij Pal arrived
at the place of the occurrence. Appellant Sat Pal gave an
exhortation to murder the deceased upon which appellants Sanjay
and Raj Kumar caught hold of the deceased and appellants Sat Pal,
Virender and Brij Pal started stabbing the deceased. When Om
Prakash and Arvind tried to save the deceased appellant Sanjay
inflicted a knife blow on the person of the deceased and thereafter
the appellants including appellant Jitender fled from the place of
occurrence.
50. From the aforesaid narratives, following facts clearly emerge
on the record: - (i) the situs of the external injuries found on the
person of the deceased shows that the knife blows were inflicted by
appellants Sat Pal, Virender and Brij Pal all over the body of the
deceased including the frontal and posterior region of the arms and
legs of the deceased, which circumstance is suggestive of the fact
that the deceased was a tough guy who tried to protect himself and
held his ground even after being repeatedly stabbed by appellants
Sat Pal, Virender and Brij Pal; (ii) appellant Jitender came to the
place of occurrence on two occasions on the date of occurrence and
made inquiries from the father of the deceased about the
whereabouts of the deceased; (iii) appellant Jitender identified the
deceased as the brother of the deceased and (iv) appellant Jitender
could have easily left the place of occurrence on his motorcycle
when appellants Sat Pal, Virender and Brij Pal started stabbing the
deceased but he did not do so and remained present at the place of
occurrence throughout the time when appellants Sat Pal, Virender
and Brij Pal were stabbing the deceased.
51. From the aforesaid facts, particularly the fact that appellant
Jitender remained present at the place of occurrence throughout the
time when appellants Sat Pal, Virender and Brij Pal were stabbing
the deceased strongly suggests that appellant Jitender shared a
common intention with the other appellants to murder the deceased
and that the role assigned to him was to lure the deceased who was
a tough guy to come out of his house and entrap him so that the
other appellants could overpower and murder him.
52. Having repelled the submission advanced by the learned
counsel for the appellants, we proceed to determine whether the
prosecution has been successful in establishing the guilt of the
appellants.
53. In the instant case, the incident occurred around 07.45 P.M. on
14.07.1993. The statement Ex.PW-16/A of Om Prakash, which
formed the basis of the registration of the FIR Ex.PW-5/A, was
recorded at 10.00 P.M. on 14.07.1993. The FIR stood registered at
around 10.50 P.M. on 14.07.1993. (Be it noted here that the
registration of the FIR at around 10.50 P.M. on 14.07.1993 was not
challenged by the appellants for save and except appellant Raj
Kumar the evidence of the scribe of the FIR Ex.PW-5/A Chhaila Ram
was not controverted by the other appellants and that no
suggestion was given to the witness on behalf of appellant Raj
Kumar that the FIR was ante-timed). In these circumstances, the
possibility of Om Prakash contriving facts and spinning a false story
in such less time is remote.
54. Om Prakash PW-16, the father of the deceased, was cross-
examined at great length apparent from the fact that the cross-
examination of the witness spans nearly 16 pages, but nothing
tangible could be elicited therefrom which could cast a doubt on the
genuineness of his testimony. Furthermore, it would militate against
natural human conduct that Om Prakash PW-16, the father of the
deceased, would let real culprits of the murder of his son off the
hook and falsely implicate the appellants.
55. In view of the above, we have no hesitation is concluding that
Om Prakash PW-16, is a creditworthy witness. As a necessary
corollary thereof, the instant appeals are dismissed. The bail bonds
and surety bonds of the appellants are cancelled. The appellant
shall surrender forthwith to serve the remaining sentence.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
MARCH 22, 2011
mm
