Vicky Kumar vs State
2012 Latest Caselaw 7325 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     RESERVED ON : 5th November, 2012
                                     DECIDED ON : 21st December, 2012

+      CRL.A.732/2011

       VICKY KUMAR                                         ..... Appellant
                               Through :   Mr.R.P.Luthra, Advocate with
                                           Mr.Saurabh Luthra, Advocate.

                      versus

       STATE                                               ..... Respondent
                               Through :   Mr.Sanjay Lao, APP.

       CRL.A.601/2011
       SUNNY                                              ..... Appellant
                               Through :   Mr.Swastik Singh, Advocate.

                      Versus

       THE STATE                                          ..... Respondent
                               Through :   Mr.Sanjay Lao, APP.


       CRL.A.713/2011

       VIKKI                                               ..... Appellant
                               Through :   Mr.Swastik Singh, Advocate.

                      Versus

       STATE & ORS.                                        ..... Respondents
                               Through :   Mr.Sanjay Lao, APP.


Crl.A.Nos. 732/11, 601/11 & 713/11                                Page 1 of 18
         CORAM:
        MR. JUSTICE SANJIV KHANNA
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Vikki Kumar S/o Ashok Kumar (A-1), Sunny (A-2) and

Vikki S/o Prem Pal (A-3) have directed the appeals against the judgment

dated 08.03.2011 and order on sentence dated 07.04.2011 in Sessions

Case No.110/06/10 of learned Additional Sessions Judge by which they

were held responsible for committing Pradeep's murder and sentenced to

undergo imprisonment for life with fine.

2. On 21.10.2005, at about 21.46 hours Daily Diary No.34A

was recorded at Police Station Mayur Vihar to the effect that a quarrel

was going on between 'two groups' in front of Baraat Ghar 35/109, Trilok

Puri. The investigation was assigned to SI Onkar Singh who with HC

Prabhat Singh went to the spot and came to know that the injured had

already been shifted to Lal Bahadur Shastri (LBS) Hospital by PCR. He

went to the hospital and collected Pradeep's MLC who was unfit to make

statement. Adeesh Kumar, Pradeep's brother met him in the hospital and

made statement (Ex.PW-7/A). The Investigating Officer recorded 'rukka'

and lodged First Information Report under Section 307 IPC. Adeesh

disclosed that at about 09.00 P.M., when he was present near Ashoki

Hotel, A-1 and A-3 picked up a quarrel with him. On hearing commotion,

his brother Pradeep reached there at about 09.15 P.M. A-2 with one Vikas

(since acquitted) also arrived there. A-2 had a churi. On the exhortation of

A-1, A-2 inflicted churi blow on Pradeep's head, while A-3 and Vikas

caught hold of him. A-1 also inflicted two or three knife blows on his

forehead and back. The assailants fled the spot. He with Ajay brought

Pradeep to LBS Hospital.

3. Later on, Pradeep succumbed to the injuries and the

investigation was taken over by Insp.S.S.Kaushik. At around 02.30 A.M.

Vikas and A-1 were apprehended and their disclosure statements were

recorded. A-2 and A-3 surrendered before the Court. On 27.10.2005, A-2

recovered churi used in the incident from Safada Park. During the course

of investigation, the Investigating Officer sent the exhibits to Forensic

Science Laboratory and collected reports. Statements of the witnesses

conversant with the facts were recorded. After completion of the

investigation, a charge-sheet was submitted against A-1 to A-3 and Vikas.

They were duly charged and brought to trial. The prosecution examined

seventeen witnesses to prove the charges. Incriminating material

appearing against the accused was put in 313 Cr.P.C. statements. They

pleaded false implication. The accused examined seventeen witnesses in

defence.

4. After appreciating the evidence and documents on record and

considering rival contentions of the parties, the Trial Court acquitted

Vikas and convicted A-1 to A-3 for committing offence under Section

302/34 IPC. Being aggrieved, A-1 to A-3 have preferred the appeals. We

note that State has not filed appeal challenging Vikas's acquittal.

5. Learned counsel for the appellants while assailing the

impugned judgment urged that the Trial Court did not appreciate the

evidence in its true perspective and erroneously placed reliance on the

testimonies of PW-7 (Adeesh Kumar) and PW-8 (Ashish Kumar) who

were close relatives of the deceased and were interested witnesses. It did

not ensure their reliability and credibility. Conduct of PW-7 (Adeesh

Kumar) and PW-8 (Ashish Kumar) was unreasonable and unnatural and

ruled out their presence at the spot. Neither of them lodged report with the

police or took the victim to the hospital. They did not intervene in the

occurrence. PW-12 (Ajay Nagwal)'s name alone finds mention in the

MLC (Ex.PW-2/A). The appellants had no motive to inflict fatal injuries

to the victim. Pradeep sustained injuries at the hands of unknown persons

at the house of Kunwar Pal where he and PW-7 (Adeesh Kumar) used to

consume liquor and indulge in gambling. PW-7 (Adeesh Kumar) made

vital improvements in his deposition in the Court. The Trial Court did not

believe PW-7 (Adeesh Kumar) and PW-8 (Ashish Kumar) to convict

Vikas. It is further argued that even if case of the prosecution is taken on

its face value, it is not a case of murder as single blow was inflicted in a

sudden quarrel.

6. Learned APP while supporting the judgment urged that the

appellants in furtherance of common intention inflicted fatal blows to the

victim without provocation. The victim was unarmed and had no

confrontation with the appellants. The appellants were annoyed due to a

quarrel over bread with PW-7 (Adeesh Kumar). Though PW-12 (Ajay

Nagwal) did not support the prosecution, exclusion of his testimony

would not cause dent in the prosecution case. PW-7 (Adeesh Kumar) and

PW-8 (Ashish Kumar) had no animosity to depose falsely against the

appellants and were interested to bring the real culprits to book.

7. We have considered the submissions of the parties and have

examined the Trial Court records.

8. Homicidal death of Pradeep is not under challenge. He was

brought in injured condition at LBS Hospital on 21.10.2005 at about

09:55 P.M. with the alleged history of 'assault'. PW-2

(Dr.S.B.Jangpangi) examined him vide MLC (Ex.PW-2/A). Pradeep

succumbed to the injuries and was declared dead at 11:15 P.M. PW-15

(Dr.Mukta Rani) conducted post-mortem examination of the body on

22.10.2005 vide report Ex.PW-15/A. The cause of death was hemorrhage

and shock consequent upon stab injury No.(iii). All the injuries were

antemortem, fresh and produced by stabbing and cutting weapon. Injury

No.3 was sufficient to cause death in the ordinary course of nature. She

opined in her report Ex.PW-15/B that injury No.(iii) was possible with the

weapon of offence shown to her. Undoubtedly, it was a case of culpable

homicide.

9. PW-8 (Ashish Kumar), the deceased's brother-in-law

claimed that the occurrence was witnessed by him. He deposed that on

21.10.2005 at about 9/9:30 P.M. when he was going to meet his sister, he

saw A-2 inflicting a knife blow on Pradeep's head while A-3 had caught

hold of him. When he started bleeding, A-2 further caused 2/3 knife blows

on his back. Several persons gathered at the spot. He fled the spot.

Pradeep had expired before he reached LBS Hospital in the night.

Presence of this witness at the spot is doubtful. His conduct is unnatural

and unreasonable. Pradeep was his sister's husband and was allegedly

stabbed in his presence. He did not raise hue and cry and intervene to

save Pradeep. Neither did he assist PW-7 (Adeesh Kumar) to take the

injured to the hospital nor did he report the incident to the police. He did

not explain the purpose of his visit to his sister at that time. There is

inconsistency whether he had gone to meet his sister or a friend. He made

vital improvements in his deposition in the Court and was confronted with

161 Cr.P.C statement (Ex.PW-8/DA). In the statement under Section 161

Cr.P.C., he named four assailants who caused injuries to Pradeep,

however, in the statement before the Court, he implicated only A-2 and A-

3. His version is contrary to PW-7's statement, an eye witness. PW-8

(Ashish Kumar) admitted that he did not meet PW-7 (Adeesh Kumar) at

the spot. There is delay in recording statement under Section 161 Cr.P.C.

PW-8's house was situated at a distance of half kilometer from the place

of occurrence but he did not inform anybody in the house about the

incident. When he met PW-7 (Adeesh Kumar) in the hospital at 1:30

A.M., he did not inform him about his presence at the place of occurrence.

House of his sister was at a distance of 10-20 yards from the spot. He did

not go to inform them. PW-7 (Adeesh Kumar) did not speak PW-8's

presence at the spot. In 161 Cr.P.C. statement, he stated that Pradeep was

taken to the hospital in a TSR by PW-7 from the spot. For all these

reasons, we doubt his presence at the spot and are not inclined to place

reliance on his testimony and ignore it.

10. Undisputedly PW-12 (Ajay Nagwal) assisted to take Pradeep

to the hospital. In MLC Ex.PW-2/A, he is stated to be the relative or

friend of the victim who admitted him. PW-7 (Adeesh Kumar) deposed

that PW-12 (Ajay Nagwal) had accompanied him to the hospital in a TSR.

PW-12 did not support the prosecution and expressed complete ignorance

about the case. Instead of requesting the Court for permission to cross-

examine him, Additional Public Prosecutor, without any reasons opted to

'give up' the witness as unnecessary. Consequently, he was not further

examined in the court. PW-12 was not confronted with his 161 Cr.P.C.

statement and it cannot be relied upon for any purpose.

11. PW-7 (Adeesh Kumar), deceased's brother is a crucial

witness as initial confrontation took place with him. He deposed that on

21.10.2005 at about 09:00 P.M., when he was present ahead of Ashoki

Hotel, Extra Block No.35, Trilok Puri, Delhi, A-1 and A-3 met him. A-1

caught him by collar and inquired why he had quarreled over bread three

days back and started abusing him. After sometime, A-2 who had a knife

arrived there with Vikas and they started quarrelling with him. When

around 09:15 P.M., his younger brother Pradeep @ Laloo reached there,

on the exhortation of A-1 to kill (maar do jaan se sale ko). A-2 attacked

him (Pradeep) with a knife on his head. When he attempted to flee, Vikas

and A-3 caught hold of him and A-2 inflicted 2/3 knife blows on his back.

The assailants fled the spot. He and Ajay took Pradeep to LBS hospital in

a TSR and was referred to GTB hospital but on the way, he succumbed to

the injuries. The police recorded his statement Ex.PW-7/A in the hospital.

In the cross-examination, he admitted that there were many public persons

at the spot. He was not sure at what time his statement was recorded. He

admitted that his and that of Ajay's bloodstained clothes were not seized

by the police. He elaborated that there was street light and the lane where

the occurrence took place was 10/12 feet wide. He admitted that he had

not lodged report with the police for the previous altercation. He stated

that there was exchange of hot words for 10-12 minutes and he sustained

injury on teeth and kick blow on his abdomen but was not medically

examined. He denied the suggestion that he and Pradeep used to indulge

in gambling and on the day of occurrence, Pradeep had consumed liquor

and when he was gambling at the house of Kunwar Pal, in an altercation,

he sustained injuries there with brick bats and stones. He further denied

any attempt to extort ` 1 lac from Subhash Chand, father of the accused-

Vikas to settle the matter. He stated that Pradeep reached all of a sudden

and could not get chance to release him from the clutches of the accused.

12. We have no reasons to disbelieve or doubt PW-7's presence

at the spot. The initial confrontation took place with him for about 10/12

minutes and there was exchange of hot words. PW-7 even claimed that he

sustained injuries when the accused quarreled with him before Pradeep's

arrival. The occurrence took place at about 09:00 P.M. PW-16 (SI Onkar

Singh) reached the spot on assignment of Daily Diary No.34/A (Ex.PW-

11/A). The victim had already been shifted to LBS hospital. He deposed

that the injured's elder brother met him in the hospital and he recorded his

statement (Ex.PW-7/A). He prepared rukka at 11.00 P.M. and lodged

First Information Report at police station Mayur Vihar. First Information

Report in a criminal case is a vital and valuable piece of evidence for

corroborating the oral evidence. The object of insisting upon prompt

lodging of the report to the police is to obtain early information regarding

the circumstances in which the crime was committed, the names of the

actual culprits and the part played by them as well as the names of eye

witnesses present at the scene of occurrence without any fabrication. In

the instant case, the FIR was recorded promptly without any delay before

there was time and opportunity to embellish the version. In his statement

made to the police at the first instance, PW-7 claimed that the incident

was witnessed by him and the victim was admitted by him and Ajay at the

hospital. He named the assailants and narrated how and under what

circumstances, they had inflicted injuries to Pradeep.

13. PW-7 deceased's brother was acquainted with the accused.

His close relationship to the deceased is no ground to reject his testimony

if otherwise it is reliable. He would be most reluctant to spare the real

assailants and falsely implicate an innocent one. We have no reasons to

suspect him as an interested witness to have a hostile attitude towards the

accused facing trial. In such cases, the Court has to adopt a careful

approach and analyze evidence to find out whether it is cogent and

credible. His presence at the spot was natural as initial confrontation

occurred with him and he lived nearby. PW-7's presence was not

challenged in the cross-examination. He was extensively cross-examined

but nothing material emerged to discredit his entire version. He attributed

specific role to the each accused. We are conscious that Vikas was

implicated but acquitted. However, acquittal of a co-accused for certain

reasons detailed in the impugned judgment is not a ground to give benefit

to the appellants. The maxim 'falsus in uno falsus in omnibus' has not

received general acceptance nor has this maxim come to occupy the status

of a rule of law. It is merely a rule of caution. The doctrine merely

involves the question of weight of evidence which a court may apply in a

given set of circumstances, but it is not what may be called 'a mandatory

rule of evidence'. Merely because some of the accused persons have been

acquitted, though evidence against all of them, so far as direct testimony

went, was the same does not lead as a necessary corollary that those who

have been convicted must also be acquitted. It is always open to a court to

differentiate the accused who had been acquitted from those who were

convicted. PW-7 cannot be branded as liar and his evidence cannot be

rejected outright even if part of his testimony is found to be true and

correct. The said part can be accepted and relied. The Court has to

appraise the evidence to see to what extent it is worthy of acceptance.

PW-7 categorically affirmed that fatal blow was inflicted with the aid of

knife by A-2. A-1 exhorted his associates to kill. A-3 assisted A-2 in

inflicting injury to the victim when he caught hold of him. The accused

did not deny their presence at the spot. They participated in the crime and

fled the spot after the occurrence.

14. Churi (Ex.P1) was recovered pursuant to A-2's disclosure

statement and seized vide seizure memo Ex.PW-14/B. The weapon of

offence was shown to Autopsy Surgeon who was of the opinion that

injuries on the victim's body were possible with that 'churi'. It was also

sent to Forensic Science Laboratery and as per CFSL report (Ex.PW-

17/H) blood group 'A' was detected on it. It was the deceased's blood

group. There is thus, no conflict between the ocular and medical evidence.

We have no doubt that the appellants are the perpetrator of the crime and

they in furtherance of their common intention caused injuries to the

victim.

15. There is inconsistency in MLC (Ex.PW-2/A) and post-

mortem report (Ex.PW15/A). MLC ( Ex.PW2/A) was prepared by PW-2

(Dr.S.B.Jangpangi) on 21.10.2005 at about 09:55 P.M. and it depicted one

incised wound and two lacerated wounds on the body. However, the

post-mortem report (Ex.PW-15/A) proved by PW-15 (Dr.Mukta Rani)

mentions three stab incised wound of various dimensions. The

prosecution did not reconcile the two reports. MLC (Ex.PW-2/A)

specifically records that injuries were caused by sharp and blunt objects.

The injuries had not resulted in the death of the victim at the spot. PW-2

in the cross-examination admitted that victim was in a position to speak

and he (victim) had given the history of 'assault' to him. It appears that

the victim had sustained only one incise stab wound with knife which

proved fatal. PCR record reveals that a quarrel had taken place between

two groups and stones were pelted. It seems that the lacerated wounds

mentioned in Ex.PW-2/A were the result of pelting of stones.

16. This takes us to the alternative plea taken by the counsel that

even assuming the case to be true, the mater would still not fall within the

definition of murder but would be culpable homicide not amounting to

murder punishable under Section 304 part I IPC. On scrutinizing the

evidence and considering the circumstances in which the occurrence took

place, we are also of the view that the accused had no 'intention' to

murder Pradeep. Intention is a subjective element and in most of the cases

direct proof of intention is not forthcoming. The man's intention is a

question of fact and it can be gathered from his acts. Intention to cause a

specified result or actor's purpose has to be gathered and inferred from the

action of the person and the surrounding circumstances such as motive of

the accused, utterances made, nature of attack, the time and place of

attack, the nature and type of weapon used, the nature of injuries caused

and so on. These and other factors are to be taken into consideration to

determine whether the accused had requisite intention.

17. In the instant case, an altercation took place on a trivial issue

between PW-7 (Adeesh Kumar) and A-1 and A-3 without any pre-

meditation. They were not armed with any weapon and did not cause

physical harm to PW-7 (Adeesh Kumar). They did not anticipate that PW-

7 would be available at the spot. A-2 and Pradeep were not present during

that scuffle. Both arrived later on. It appears that a quarrel without

apparent excuse ensued in which stones were also pelted. There was no

previous intention or determination to fight. In the said sudden quarrel, A-

2 on the exhortation of A-1 inflicted a solitary knife blow to Pradeep. A-2

had no animosity with PW-7 or Pradeep and had no nexus with the quarrel

genesis of confrontation of PW-7 with A-1 and A-3. The weapon used in

the occurrence was a normal vegetable knife. A-2 did not take undue

advantage and did not proceed to inflict other injuries. The accused were

not aware that Pradeep would arrive at the spot. A-2 did not cause any

harm with the aid of knife to PW-7 (Adeesh Kumar). The circumstances

in which the incident occurred reveal that sudden fight took place between

the two groups and the victim was stabbed in a sudden fight, in a fit of

rage which ruled out 'intention' to murder Pradeep. It is relevant to note

that it was not an instantaneous death. The victim was conscious and

oriented at the time of medical examination at LBS Hospital. Initially, the

First Information Report was lodged for the commission of offence under

Section 307 IPC. Pradeep succumbed to the injuries subsequently.

18. In the case of 'Sukhbir Singh v.State of Haryana', AIR 2002

SC 1168, there was no enmity between the parties. The occurrence took

place when Sukhbir Singh got mud stains on account of sweeping of a

street by Ram Niwas and a quarrel ensued. The deceased slapped the

appellant for no fault of his. The quarrel was sudden and on account of a

heat of passion. The accused went home and returned armed in the

company of others without telling them of his intention. The time gap

between the quarrel and the fight was a few minutes only. The Supreme

Court observed that it was, therefore, probable that there was insufficient

lapse of time between the quarrel and the fight which meant that the

occurrence was 'sudden' within the meaning of Exception 4 of Section

300, IPC. In another case of 'Golla Yelugu Govindu v.State of Andhra

Pradesh', (2008) 16 SCC 769, at about 2:00 A.M., when the deceased was

in the house there was exchange of hot words and quarrel took place

between the accused and the deceased. This happened in the presence of

the children. Suddenly the accused hacked the deceased in the neck with

a sickle and the deceased fell down and the accused once again hacked on

the neck and the left ear of the deceased causing severe bleeding injuries.

It resulted in the death of the lady. The Appellant there submitted that

Section 302 IPC had no application to the assault made during the course

of a sudden quarrel and Exception 4 of Section 300, IPC applied. The

Supreme Court discussing the law in detail converted the conviction to

Section 304 Part 1 IPC. In 'Sudhakar vs. State of Maharashtra', (2012) 9

SCC 725, the appellant father stabbed his son who was misbehaving as

usual in a drunken state. There was conclusive proof to hold that it was

the appellant who was responsible for single stab injury inflicted upon the

deceased with the aid of a knife. The Supreme Court held that there was

nothing to suggest that there was any plea pre-meditation in the mind of

the appellant to cause the death of the deceased. The behaviour of the son

was a continual source of torment to him. Unmindful of consequences,

though not in a cruel manner, the father inflicted a single blow which

caused severe damage to vital organs, resulting into the death of the

deceased. It was held that the offence proved against the father was under

Section 304 part I IPC.

19. In the light of the above discussion, we are of the opinion that

conviction of the appellants is required to be altered from Section 302 IPC

to Section 304 Part-I IPC. We have also heard the parties on the point of

sentence. Considering the role played by each accused, their young age,

clean antecedents, the order on sentence is modified. A-2 who had caused

the stab wound and had yield the knife is sentenced to undergo rigorous

imprisonment for eight years. A-1 and A-3 shall undergo rigorous

imprisonment for six years each. Other sentences are left undisturbed. The

appellants A-1 and A-3 are directed to surrender and serve the remainder

of their sentence. For this purpose, they shall appear before the Trial

court on 05.01.2013. The Registry shall transmit the Trial Court records

forthwith to ensure compliance with the judgment.

20. The appeals are partly allowed and orders of conviction and

sentence are modified in the above terms.

(S.P.GARG) JUDGE

(SANJIV KHANNA) JUDGE DECEMBER 21, 2012 Sa/tr