Delhi High Court
Pardeep And Anr. vs State Nct Of Delhi on 30 March, 2012
Author: S.Ravindra Bhat
IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on:27.03.2012
Decided on: 30.03.2012
+ Crl.A. 244/2010
DEVENDER alias BITTOO ..... Appellant
versus
STATE NCT OF DELHI ..... Respondent
+ Crl.A. 317/2010
PARDEEP AND ANR. ..... Appellant
versus
STATE NCT OF DELHI ..... Respondent
+ Crl.A. 162/2010
DHARAMBIR AND ORS. ..... Appellant
versus
STATE ..... Respondent
+ Crl.A. 163/2010
SATENDER alias SANJU ..... Appellant
versus
STATE ..... Respondent
.....Appellants
Through: Sh. K.B. Andlay, Sr. Advocate
with Sh. M. Shamikh, Advocates, in Crl.A.
317/2010.
Sh. Jitendra Sethi with Sh. Sharad Saini,
Advocates in Crl.A.244/2010.
Sh. Mukesh Kalia with Sh. Varun Jamwal
and Ms. Akriti Mahendra, Advocates.
.....Respondents
Through: Ms. Richa Kapoor, APP.
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 1
MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE S.P. GARG
MR. JUSTICE S.RAVINDRA BHAT
%
1. In these appeals three accused i.e. Devender, Pradeep and Parvesh
were convicted for the offences punishable under Sections 302/34/452/149
IPC; the accused Satinder, Dharamvir and Gulab Rai were convicted for the
offences punishable under Sections 307/34 IPC and Sections for 452/149
IPC. The appellant Mahender was convicted for the offence punishable
under section 452/34 IPC and acquitted of other charges. All the appellants
were sentenced to undergo various prison terms; those convicted for the
offence punishable under Sections 302/34 IPC were sentenced to
imprisonment for life; for other offences, they were sentenced to lesser
sentences. Those convicted for offences under Sections 307/34 and 452/149
IPC were sentenced for 3 years' imprisonment and other sentences.
Mahender too was sentenced to undergo 3 years' imprisonment. All the
sentences were directed to operate concurrently.
2. The incident in this case occurred in the late evening of 27-11-1999 at
11:55 PM. The police received intimation- recorded in the form of a Diary
entry (DD) Ex. PW-5/C, that there was fighting at House Number 6205, Dev
Nagar, Gali No.1, Block No.1. The police station concerned marked the
information to Inspector Dinesh Tiwari who deposed during the trial as PW-
22, and Constable Narain Singh, PW- 11. They went to the spot but the
victims had been taken to the RML Hospital by the PCR Van. In the hospital
they were informed that one Veer had succumbed to injuries and died. They
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 2
met the injured, Rajendra Prasad (PW-3) and recorded his statement, which
formed the basis of the first information report (F I R) that was registered at
2:30 AM in the morning of 28-11-1999. The F I R was produced as Ex. PW-
5/A.
3. The police case was that Satinder, Gulab Rai, Dharamveer, Pravesh
and Pradeep were arrested on 28-11-1999 from the spot and were identified
by the complainant. Mahender and Devender were arrested on 16 December
1999; they surrendered in the court.
4. The prosecution case against the accused was that on 27-11-1999 the
stone laying ceremony had taken place in the locality where the deceased
and his family members including PW-3 lived, in which the street was
named as Prabhu Dayal Pareva street. Family members of Prabhu Dayal,
who belonged to the Khatik Samaj, lived there. The locality was inhabited
by members of another community i.e.the Raiger Samaj. After the function,
the Baba Dur, Bal Nath procession took place around 8:30 PM. The
members of the Pareva family, including the accused were abusing loudly, in
the street, that whoever had broken the stone in which their grandfather's
name was engraved (and installed that day, apparently) would not be spared
by them. PW-3 in his statement recorded to the police at the hospital, stated
that about 11 PM the accused went up the first floor where he used to reside;
they called him out, saying that they would teach him a lesson for breaking
the stone. PW-3 stated that he opened the door and said that he had not
broken the stone; Gulab Rai took hold of him and the Dharambir caught hold
of his left hand. It was alleged that the Veer, his nephew came down, at
which Dharmbir said that he ought to be taken down, and killed, to teach the
Raigar (community) a lesson. PW-3 stated that Pradeep and Pravesh caught
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 3
hold of Veer, and Mahender caught hold of his collar and dragged him
(Veer) down. The two accused who had caught the witness continued to hold
him. Devender gave a knife or dagger blow to Veer. He told the other
accused that he had finished his work and asked Satinder that he should
finish off the others including the complainant. The complainant tried to
escape, and staved off blows, but could not avoid a knife injury given by
Satinder. He was rescued, by members of the general public.
5. As mentioned earlier the F I R was registered at around 2:30 AM in
the morning. The judicial record reveals that the special report (about the
incident recorded in the F I R) was received by the Magistrate concerned in
terms of Section 157 Cr. PC. at 5:30 AM in the morning.
6. After completion of investigation and on the basis of the materials
collected during its course, the police charged the accused for committing
various offences. They denied guilt and claimed trial. During the trial the
prosecution relied on the testimonies of 23 witnesses and various exhibits
including the post-mortem report as well as the MLC's (i.e. medico legal
reports) of the accused as well as the injured parties. On an overall analysis
of these the Trial Court concluded that the three accused mentioned
previously in the judgment were guilty for having committed the offence
punishable under section 302 IPC along with other offences. The other
accused were variously held guilty for offences under Sections 307 IPC and
sections 452/149 IPC.
7. It was argued on behalf of the Appellants that attack, as well as the
sequence of events were not established by the prosecution. It was urged that
the Court should not have believed the testimony of the so-called eye-
witnesses. It was argued, with some vehemence that PW-3 was
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 4
untrustworthy, and admitted more than once, during the course of his
deposition that the place was ill- lit, and as a result, there was no scope for
identification of the accused, positively as attackers. It was submitted that
during the cross examination, the witness also admitted that he was not
aware of the names of the accused, and had not interacted with them. In
these circumstances, there was no question of the witness, or other
witnesses, being in a position to identify the accused, positively as the
attackers, and rule out the possibility of others' involvement.
8. It was argued that even though in law the Court may, in some certain
circumstances, believe the testimonies of relatives, as being eye-witnesses,
there is no general rule that such witnesses are always trustworthy or would
not lie. It was submitted that such witnesses, on account of their relationship
with the victim or the deceased, would be interested in ensuring some
conviction, and the possibility of their creating stories to implicate third
party innocent people cannot be ruled out.
9. It was next submitted that the prosecution was unable to give any
explanation regarding the injuries sustained by the accused themselves, such
as Pradeep, Pravesh, Satender and Gulab Rai. The Appellant's counsel relied
on Ex. PW-4/A, Ex. PW-4/B, Ex. PW-4/C and Ex. PW-4/DA. These showed
that the incident reported was not accurate at all, and the Appellants too had
been injured. Having regard to the overall circumstances, the materials
placed before the Trial Court did not lead to the conclusion that the accused
were guilty; rather they were the victims. Counsel submitted that having
regard to the overall circumstances and facts of this case, it could not be said
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 5
that there was a pre-planned or pre-meditated attack, on the part of the
accused.
10. It was argued that the Trial Court overlooked a material contradiction
which went into the root of the matter, namely that an important prosecution
witness, i.e PW-14 resiled from the version given to the police during the
investigation, and did not support the testimony of his brother, PW-3. This,
coupled with the high degree of improbability regarding identification of the
accused, during pitch dark, (since there was no electricity supply,
concededly at the time of incident, in the locality) ought to have alerted the
Trial Court in proceeding to tread with caution. Instead, it chose to accept in
a wholesale manner, the testimony of the said witness, erroneously.
11. Counsel for the accused next submitted that the possibility of the FIR
being ante timed in this case could not be ruled out. It was submitted that the
evidence in the case, revealed that DD No. 24A was recorded at 10:00 PM in
respect of the incident, i.e. quarrel, etc. However, the prosecution
intentionally withheld this document, as it would have falsified the entire
story. The learned counsel submitted that the absence of the accused's
names in documents, such as the brief facts, inquest report, etc. This strongly
pointed to the possibility of the assailants being some others. Counsel also
submitted that the prosecution evidence - as per statement of PW-15 was
that nine injured individuals had been taken to the hospital, including Gulab
Rai, and the three others. However, no attempt was made to arrest them,
even though the prosecution alleged that the statement of PW-3 was
recorded there. This was a material suspicious circumstance, entitled to be
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duly weighed and considered, to verify whether the incident took place in
the manner, time, and place alleged, or in altogether different circumstances.
12. Learned counsel emphasized that even according to the accounts of
the prosecution witnesses, independent witnesses were present, and some of
them were instrumental in rescuing PW-3; yet no attempt was made to
record their statements or even ascertain their identities. The complete lack
of any independent witness undermined the credibility and truthfulness of
the prosecution version. The Trial Court's failure to look into, and consider
this vital aspect vitiated its judgment. Similarly, submitted counsel, the
recovery of the alleged weapon of offence was highly doubtful in the
circumstances of the case, since it was not witnessed by any member of the
public or independent witness, though they were available at hand.
13. It was argued that the testimony of PW-3 as regards the identification
of the accused, was also suspicious and unreliable because he clearly
admitted in the cross examination that he was told about their names, etc by
the police. Elaborating on this, it was submitted that this admission was
crucial to the appellants, since it established that the witness did not know
the accused, and did not even have occasion to interact with them. In the
circumstances, it was highly suspicious that he would, on the basis of
tenuous recollection or understanding, have been able to identify them. It
was urged in this context, that the deposition of PW-3 also established that
his claim that he could identify accused, by voice, was unconvincing if not
down-right false. In this context, it was urged that without any social
interaction, and without knowing the individuals, the witness could never
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 7
had any occasion to say definitely who had actually attacked his nephew, or
him.
14. Learned counsel submitted that in the absence of any active role
spoken to by the witnesses for the prosecution, the conviction of some of
them under Section 307 was unsustainable. It was also argued that the Trial
Court fell into error in not examining or segregating the role of each
accused, and proceeding to lump them together. It was urged that nowhere
did anyone attribute a role that would attract a conviction under Section 307
IPC; similarly, there was no intention on the part - nor was any proved, by
the prosecution, for sustaining a conviction under Section 452 IPC.
15. Counsel for the appellants submitted that even assuming (though not
admitting) the prosecution allegations were deemed to have been proved, the
Trial Court still fell into error, in not seeing that the deceased Veer died as a
result of a single knife blow. It was submitted that having regard to the
circumstances, only a conviction under Section 304-II IPC could have been
warranted, since the assault was a result of a sudden quarrel, and fell within
the fourth exception to Section 300 IPC. Counsel relied on Ramesh
Vithalrao Thakre & Anr. vs. State of Maharashtra 1995 Crl.L.J. 2907, a
decision by the Supreme Court, where it was held that:
"XXXXXX XXXXXX XXXXXX
7. There is no denying the fact that one single injury was caused
to the deceased by Ramesh when Rekha intervened to save her
brother Ashok being assaulted. The primary target of Ramesh
was Ashok, who got saved when Rekha received the injury on
her chest. After causing the single injury to Rekha, it is the
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 8
prosecution case itself, that Ramesh did not cause any other
injury to Rekha nor even to Ashok, PW-1. From the evidence on
the record and the established circumstances, it is not possible
to say with certainty that the appellant intended to cause the
death of Rekha. Even though the principle contained in Section
301 IPC would be applicable to the case, it appears to us that
the appellant can only be clothed with the knowledge that the
injury which he was causing was likely to cause the death of
Rekha but without any intention to cause her death or to cause
such bodily injury as is likely to cause death. The offence, under
the circumstances, would be one which would fall under Section
304 Part II IPC.
XXXXXX XXXXXXX XXXXXX"
Similarly, it was argued that in Harjinder Singh vs. Delhi Administration
AIR 1968 SC 867, the accused sought to teach the deceased, and his brother
a lesson, on account of a quarrel. He went back, armed with a knife, with
which he inflicted blows on the witness, when he was sought to be rescued,
the accused trained his guns on the deceased, and landed two knife blows.
The Court held that the conviction would be justified under Section 304-II
IPC.
16. It was argued by the learned APP that the appellants did not show any
substantial or compelling reasons for interference with the impugned
judgment. It was argued in this context that the submissions regarding ante
timing of the first information report, and consequent false implication are
without any foundation. Elaborating on this, the State submitted that the
reporting of the crime occurred almost simultaneously; the police reached
the spot within minutes of occurrence of the incident. The statement of
injured witnesses were recorded at the hospital, since by then members of
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 9
the public and other members of the family had taken them for medical
treatment and attention. The information leading to the registration of the
first information report was recorded at 02:20 A.M; the F I R itself was
recorded at 02:30 A.M. the Magistrate concerned was given special report
within reasonable time, around 5 AM. In the circumstances the submission
regarding late recording of the F I R and falsification have no basis at all.
17. It was submitted that the findings of the Trial Court have to be left
undisturbed because they were premised on the testimony of injured
eyewitnesses such as PW- 03. Counsel argued that this witness was
consistent with the story given by him or the version recorded in support of
the F I R. He was not only able to name all the assailants but even
specifically mentioned the role and stated the entire sequence of events.
Counsel emphasised that at the earliest opportunity, in the intimation and his
statement recorded around 2 AM in the morning, the names of all the
attackers had been mentioned. Since there was no controversy in this, the
possibility of false implication or roping in others who were not present was
completely eliminated. Learned counsel pointed out that the testimony of
this witness was recorded about after over five years later as a result of
which naturally some minor discrepancies or inconsistencies were bound to
arise. However, these did not detract from the basic quality of his evidence
which was entirely trustworthy. He clearly attributed a very aggressive role
to three of the accused who were responsible for the death of his nephew.
Two of them held him while the other i.e. Satinder, stabbed him. Having
regard to the nature of the injury and the depth of the knife wound, there
could be no doubt in the mind of the court that the intention of the assailants
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 10
was to kill and not merely cause grievous injury. Learned counsel
emphasised that the question of converting the conviction from one under
Section 302 IPC to a conviction under Section 304 IPC did not arise having
regard to the site of the wound and the that of the injury. There was no
history of quarrel; the appellants were clearly aggressors who felt slighted on
account of an imagined wrong. They consequently went in a group and
started pulling out PW-3 and his nephew as well as other members of the
family in order to teach them a lesson. This resulted in a tragic incident.
Consequently the question of sudden quarrel with in the contemplation of
Explanation 4 to Section 300 IPC did not arise at all.
18. It was submitted next by the State that even though the deposition of
PW- 14 another relative did not fully support the prosecution, and he had to
be put leading questions with the permission of the court, that itself did not
deflect in any manner from the quality of evidence placed on the record
through PW-3's deposition. It was submitted that PW- 14 like the other
witnesses was examined more than five years after the incident in 2008. He
deposed whatever he could remember. It was not as if he completely denied
the prosecution evidence or contradicted the others. Highlighting this aspect,
counsel urged, that at best the evidence of PW- 14 by itself cannot be a
ground for conviction and yet it is not so inconsistent with the overall
prosecution story as to reject it altogether. Counsel argued that PW- 14 was
not even the complainant and his statement was recorded later. Therefore
even if the court were not to rely on his testimony, nevertheless, the
conviction recorded by the impugned judgement would be independently
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 11
sustained on the basis of the other materials particularly the testimony of
PW- 03.
19. Commenting on the submissions made on behalf of the appellants,
counsel for the State submitted that the argument about lack of light or the
improbability regarding identification of the attackers was adequately dealt
with by the Trial Court in the impugned judgement. The submission here
was that according to the position of PW- 03, being a resident of the area, he
clearly identified all the attackers. In this context learned counsel argued that
even though the witness did not have any social interaction with the accused,
nevertheless the possibility of his knowing who they were could not be ruled
out since he saw them on an everyday basis. In this context it was further
argued that the accused and the victims belonged to different communities;
the accused must have grievance that the victim and his family were
somehow responsible for what they felt was a slight cast on their
grandfathers' memory. This led to their attacking the victim with his family
resulting in the death of Veer. Submitting that it was not necessary for an
individual to know the names of those living in his or her neighbourhood in
order to be familiar with them, the APP stated that absence of any social
intercourse or interaction or even lack of knowledge of the personal details
of someone would not necessarily or inevitably mean that a neighbour would
be unfamiliar with him. Commenting on the repeated cross examination
regarding the identity, the APP highlighted the fact that PW- 03 clearly
mentioned that he could identify the accused through their voices in the
darkness.
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 12
20. As noticed in the previous part of the judgment, the incident occurred
late in the evening. By PW-3's account, the ceremony or a function had
taken place earlier during the day when the accused's grandfather's name
engraved on a stone had been installed. Apparently, the accused felt insulted
since some people had damaged the stone and went around the
neighborhood, abusing those responsible that they would not be spared. The
evidence also indicates that the accused belonged to the Khatik community
and the deceased as well as his relatives belonged to the Raigar community
or Samaj. Both these communities lived in the same locality. In this
background, PW-3 narrated that he used to live on the second floor of the
building and his nephew Veer lived on the first floor. The witness claimed
that he knew the accused by names and by their voices before the incident
and that they belonged to the Khatik Samaj. The Trial Court noted that this
witness was examined in-chief by the prosecution on 29.07.2002. His cross-
examination, however, was conducted on different dates. His identification
of the accused, for the first time, noted the Trial Court, was challenged
during the cross-examination on 15.03.2008. A very crucial aspect which the
appellant's counsel highlighted is that at the time of the incident, the locality
was in darkness since the electricity supply had failed. PW-3 was dragged
down from the second floor but he testified that he had seen the faces. He
later admitted that he could not clearly see the faces since it was dark but he
could hear the voices of the attackers. He clarified that he could identify the
individuals who committed the acts of aggression, by their voices. The Trial
Court, in this context explained the seeming contradiction by stating that the
long lapse of time, of about five years was a reasonable explanation why the
witness was unable to satisfy the identity. In this regard, the Trial Court
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 13
relied upon the testimony in Khujji v. State of M.P. 1991-(3) SCC 627. The
Trial Court also reasoned that PW-3 and the accused used to live in the same
locality and, therefore, the witness was in a position to identify them
distinctly. The Trial Court also took into consideration the circumstance that
PW-3 was dragged from inside his house and even though there was no
electricity, it was highly improbable that he would have opened the door
without ascertaining who went there. PW-3 deposed that on being accused
of having defiled the stone containing the accused's grandfather's name, he
said that he was not responsible. The accused persons, however, were not to
be mollified; Gulab Rai caught hold of his right hand and Dharamvir caught
hold of his left and and Satinder pushed him down from the back and
dragged him to the ground floor. He deposed that Devender and Satinder
took out their daggers; the other accused continued to hold him. His nephew,
Veer, the deceased, on hearing the commotion went outside. Parvesh and
Pradeep caught hold of him and Devender inflicted the knife or dagger blow
on his chest. Thereafter Devender said that since he had finished the work,
the other accused Satinder should finish his, i.e. PW-3. The witness went on
to say that Rajbir, his brother saved him with the members of the general
public, who had collected by then. He also deposed to having reached the
RML Hospital and that Veer was also taken there. In the hospital, Veer was
declared dead.
21. The witness deposed to having accompanied the police, on 8.11.1999,
to Satinder's house which led to the recovery of dagger from beneath a
mattress. Satinder had made a disclosure statement to the police, as a result
of which the dagger was seized. He also deposed about arrest of Gulab Rai,
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 14
Pradeep, Parvesh and Dharamvir. Since the witness did not further depose
about other recoveries seized from the house of Satinder, he was put leading
questions at the behest of the prosecution. During the cross-examination of
the witness, on 06.05.2005, PW-3 deposed that his house was situated at a
distance of 5 minutes' walk; he was unable to say whether members of his
family went to the police station at 11.00 PM when the incident happened.
He also deposed that the hospital was at a distance of 4-5 kms. He testified
that he went to the hospital on his brother's scooter but was unable to say
how long it took to reach there. He was not aware whether Gulab Rai one of
the appellants, had been injured and admitted in the same hospital; he did
not state that the police enquired about Gulab Rai from him in the hospital.
In the cross-examination, the witness, on 15.03.2008, for the first time,
admitted that there was no electricity supply in the area, when he was pulled
down from the second floor and that it was dark. To a specific question, he
said that though there was no light of any kind when he was brought to the
road, 50-60 persons had gathered at the spot; 7-8 had brought him down
from the second floor; He could not state how long the quarrel continued
with any precision. He admitted in the cross-examination that when
attacked with the knife, there was some bleeding which stained his shirt and
that it had been seized by the police. In the cross-examination, he stated that
2-3 persons could comfortably go side-by-side by the staircase, to his house.
He also stated that though he could not see the faces of the accused or the
attackers, he could hear their voices clearly. To a specific query, he stated
that he was very scared and could not see the faces clearly but could identify
the persons by their voices.
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 15
22. In the cross-examination on behalf of Satinder, Devender and
Mahender, PW-3 admitted on 12.08.2008 ignorance about the work done by
the members of the accused's family, the details of their family and also
stated that he had neither played or had any dealings with them or any
association or contact or association. In reply to another query, he stated that
Satinder's house was a three-storeyed one and explained his ignorance as to
how many rooms it had, or other details. He also did not know the
particulars of Satender's family or who were living on the first floor. He
mentioned about the recovery of the dagger from the second floor and
signatures on the memo and also stated that the dagger was measured with
an inch-tape. He denied the suggestion of having signed on blank paper and
stated that he signed on written sheets; he confirmed to the contents of the
statement recorded, Ex.3/A put to him by the learned counsel for the accused
Gulab Rai and Parvesh.
23. The first question which this court is to address itself is whether the
incident took place at the time, and manner, alleged by the prosecution. PW-
3 stated that the attack and its aftermath, occurred around 11:00 PM. He also
stated that the police station was nearby and the hospital was within 4-5 kms
radius. His testimony further is that he went to the hospital on his brother's
scooter. The MLC records that he reached the hospital at around 12-15 AM
on 28-11-1999. PW-23 corroborates the deposition of PW-3, saying that
around 11:30 PM, someone went and told him on a scooter about the fight;
he went there and saw that a crowd had collected at the spot. He took the
injured (the deceased) lying there to the hospital, where he was declared
dead. He informed another PCR van to reach the spot. The FIR was
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 16
registered at 2:30 AM; earlier, the intimation (rukka) forming the basis of
the FIR was registered upon the statement of PW-3; it clearly implicated all
the accused, and specifically named and assigned the roles the witness
attributed to each of them.
24. Two serious objections about the testimony of PW-3 articulated
during the Appellants' submissions were that there was a black out, due to
electricity failure; the area was covered in darkness. If one considered this
with the PW-3's statement that the police had told him regarding the
identity, and his further deposition during cross examination, that he had no
occasion to talk to, interact or have any contact with them, the witness was
untrustworthy. Facially, the argument is powerful. Yet, the overall effect of
the witnesses' testimony has to be considered rather than snatches of what
he said. He very specifically stated about the awareness or ability to
recognize the accused's voices. The Trial Court has observed - to our mind,
pertinently - that the appellant and the witnesses' family lived in the same
locality, and that the witness had specifically mentioned his ability to
recognize the voices of the accused. Kedar Singh v State of Bihar AIR 1999
SC 1481, is an authority for a court to accept identification on the basis of
not only face recognition, but also on the basis of other attributes such as
body shape, voice, gait, manner of walking and so on. Similarly, the
Supreme Court's ruling, in Anwar Hussain v. The State of U.P. (AIR 1981
SC 2073) is an authority that even if there is insufficient light, a witness can
identify someone, with whom he is fairly acquainted or is in intimate terms,
from his voice, gait, features etc. As a consequence, the court does not find
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substantial the argument that the witness PW-3 could not have identified the
accused, due to darkness.
25. As regards the second submission with respect to identification, ie.
PW-3 not having any occasion to socialize, or having any social contact with
the accused, the Court notices two salient features. One, immediately after
his treatment, at around 12-12:30 AM, the witness recorded his statement. In
this, he clearly named all the accused, and even attributed specific roles to
each of them. This strong circumstance could not be shaken by the
Appellants during cross examination of PW-3. The witness significantly
mentioned that the house which he lived in, i.e No. 6205, Gali No. 1,
belonged to the Pareva family, which was from the Khatik community, and
that his community had differences with the Khatik community. The
evidence on record also shows that in the examination in chief, the witness
had clearly mentioned awareness about the identity of the accused, before
the incident. Having regard to these facts, and the witnesses' repeated
assertion, that he could identify the attackers, due to their voices, the Court
is of opinion that the Trial Court's finding that since the accused, as well as
the deceased lived in the same locality, he was aware about the accused, is
justified and correct. Though the witness was cross examined, on several
dates extensively and his examination was spread over 5 years, the essence
of his deposition remained unshaken.
26. The next question which the court has to consider is the injuries on the
accused. These have been proved by the MLCs, Ex. PW-4/A (Pradeep); Ex.
PW-4/B (Satender); Ex. PW-4/C (Parvesh) and Ex. PW-4/DA (Gulab Rai).
Great emphasis was given to the fact that the injury of Gulab Rai, was a
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 18
serious one, as he had broken his ankle, even though the doctor stated that it
was simple. Now, the evidence of PW-3 itself reveals that soon after the
attack on him, or in the latter part of the incident, a crowd had collected, and
some scuffle and even beatings had taken place. The appellants had
submitted that the failure of the police to nab Gulab Rai, or anyone else,
from the same hospital, falsified the prosecution story. This court is of
opinion that these arguments are without merit.
27. First, the question of injuries on the accused. All the MLCs concerned
clearly show that the injuries, according to the attending doctor, were not
serious. In the case of PW-3, on the other hand, the doctor, PW-4, deposed
that he had been inflicted with multiple stab injuries. He was cross
examined, but not challenged about his opinion that the nature of the
accused injuries or that they were simple injuries. Therefore, the question is
whether in this factual background, where the injuries are not serious, does
the prosecution owe a duty to the Court to furnish an explanation. In this
regard, the Supreme Court, after re-visting the previous decisions on the
issue, had this to say, in its ruling reported as Shajahan v State of Kerala
2007 (113) Cr. LJ 2291:
"XXXXXX XXXXXX XXXXXX
non-explanation of the injuries sustained by the accused may
assume greater importance where the defence gives a version
which competes in probability with that of the prosecution. But
where the evidence is clear, cogent and creditworthy and where
the Court can distinguish the truth from falsehood the mere fact
that the injuries are not explained by the prosecution cannot by
itself be a sole basis to reject such evidence, and consequently
the whole case. Much depends on the facts and circumstances of
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 19
each case. These aspects were highlighted by this Court in
Vijayee Singh and Ors. v. State of U.P. (AIR 1990 SC 1459).
Non-explanation of injuries by the prosecution will not affect
the prosecution case where injuries sustained by the accused
are minor and superficial or where the evidence is so clear and
cogent, so independent and disinterested, so probable,
consistent and creditworthy, that it outweighs the effect of the
omission on the part of prosecution to explain the injuries. As
observed by this Court in Ramlagan Singh v. State of Bihar
(AIR 1972 SC 2593) prosecution is not called upon in all cases
to explain the injuries received by the accused persons. It is for
the defence to put questions to the prosecution witnesses
regarding the injuries of the accused persons. When that is not
done, there is no occasion for the prosecution witnesses to
explain any injury on the person of an accused. In Hari Krishna
Singh and Ors. v. State of Bihar (AIR 1988 SC 863), it was
observed that the obligation of the prosecution to explain the
injuries sustained by the accused in the same occurrence may
not arise in each and every case. In other words, it is not an
invariable rule that the prosecution has to explain the injuries
sustained by the accused in the same occurrence. If the
witnesses examined on behalf of the prosecution are believed by
the Court in proof of guilt of the accused beyond reasonable
doubt, question of obligation of prosecution to explain injuries
sustained by the accused will not arise. When the prosecution
comes with a definite case that the offence has been committed
by the accused and proves its case beyond any reasonable
doubt, it becomes hardly necessary for the prosecution to again
explain how and under what circumstances injuries have been
inflicted on the person of the accused. It is moreso when the
injuries are simple or superficial in nature. In the case at hand,
trifling and superficial injuries on accused are of little
assistance to them to throw doubt on the veracity of the
prosecution case. (Surendra Paswan v. State of Jharkhand
(2003)) : (2003 AIR SCW 6905) 8 Supreme 476 and Anil Kumar
v. State of U.P. (JT 2004 (8) SC 355) : (2004 AIR SCW 5238).
XXXXXX XXXXXX XXXXXX"
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 20
Having regard to the nature of injuries on the accused, and the deposition of
PW-3 about the background of the quarrel as well as the circumstances of
the attack itself, (and his statement that some of the accused were beaten up
soon after the incident) this court is of opinion that the prosecution's
omission to furnish any explanation cannot lead to any adverse inference
against it.
28. So far as the role of the accused goes, PW-3 mentioned that Satender
and Devender were armed with a dagger, and a knife. These were recovered
at their instance, and produced as Ex. P-5; the dagger was seized through
Memo Ex. PW-11/G. The deposition of PW-11, who spoke about the
recovery of the dagger, at the instance of Satender, mentioned that the
complainant PW-3 was called to House No. 6216, Gali No. 1, where he
identified Satender, Gulab Rai, Pravesh, Pradeep and Dharambeer. They
were arrested. Satender's disclosure led to recovery of the dagger, which
was seized, and taken into possession. In cross examination, the witness
PW-11 mentioned that the recovery was made from the first floor, at the
disclosure of Satender. PW-3, who also spoke of recovery of the dagger,
mentioned that it took place from the second floor. According to this
witness, the dagger was measured with an inch tape; PW-11 said it was
measured with a ruler. Though there are minor variations, they can be put
down to normal memory lapses on account of lapse of time. However, the
broad details of what took place, have matched in the testimonies of the two
witnesses. These depositions have a ring of truth, and the Court cannot
ignore them. Consequently, the Court is of the opinion that the prosecution
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 21
was able to prove the recovery of the knife and dagger, from the places
alleged by it.
29. The deposition of PW-14 does not support the prosecution - a
circumstance heavily relied on by the appellants' counsel to undermine the
entire edifice of the allegations levelled against them. Here, the Trial Court
noticed the deposition of the witness, and remarked that he partially
supported the prosecution to the extent he heard commotion (he lived on the
third floor of the building where PW-3 lived), and peeped out; he came
down and saw his nephew, the deceased, lying on the road. No doubt, the
witness did not mention about having seen the attack, or described its
details, therefore, his testimony is just not relevant. What therefore, had to
be seen, were if there were other materials and whether they were sufficient
to measure up to the standard of proof beyond reasonable doubt, to convict
the accused for the offences they were charged with. The deposition of PW-
3, in Court, as well as the early reporting of the crime, in which he
mentioned the role played by each accused, which in turn was backed by the
nature of injuries suffered by him, (proved through PW-4/D, the MLC)
shows that the witness is truthful and reliable.
30. The all important question which the Court now has to address itself
to is whether the convictions returned by the Trial Court, vis-à-vis various
accused, is justified and sustainable. The deposition of PW-3 shows that
Satender knocked at his door, asking him to come out, he opened the door,
and remonstrated that he had not broken the stone. Gulab Rai caught hold of
his right hand, Dharambir caught hold of his left hand; Satender pushed him
down. Devender and Satender drew out their daggers. In the meanwhile, the
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 22
deceased Veer had come out; Pravesh and Pradeep caught hold of him.
Devender gave him a knife blow, and said that he had finished the work
"Kaam Tamam kar diya"in respect of Veer and that Satender ought to finish
his (PW-3's) work. He claimed that Gulab Rai and Satender attacked his
right arm with daggers. Now, in this entire narrative, there are two distinct
features. The first is Satender asking the witness to go out and his being
restrained. The second is the attack on Veer, by Devender, with a dagger;
Pradeep and Parvesh facilitated this, by holding the deceased (Veer). He also
said that Mahender had caught hold of Veer, by the collar, and dragged him
down from the building.
31. As far as the offence under Section 302 IPC is concerned, it is clearly
made out against Devender. The nature of the weapon, and the planned
manner in which the attack was executed, leaves no scope for doubt that the
accused, set out to attack the victims, and had made up the minds to teach
them a lesson. The submission of the Appellants that having regard to the
background of facts, at best the intention to cause injury which would in all
likelihood have resulted in death, cannot be accepted. The Appellants were
incensed over the stone bearing their grandfather's name being damaged;
they took it as an affront. They suspected members of the Raigar
community, and particularly the victim's family and with a view to punish
them went to the building where they lived. PW-3 was first dragged out;
later the deceased, Veer was pulled out. Both were in their homes, at the
time, around 11:00 PM. The incident, when the accused went around
warning people in the neighbourhood about reprisals, took place around 8:30
PM. There was considerable gap of time, for tempers to cool off. In any
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 23
case, there is no evidence to suggest an altercation around 8:30 PM nor was
there anything said in that regard by the accused. In these circumstances, the
accused went to the building where PW-3 and the deceased lived; pulled
them out of their homes, and attacked them. Two of the accused were armed
with daggers. Devender's attack on Veer, was calculated to cause maximum
harm, and did so. The single knife blow on the chest, pierced the lungs. The
stab wound, according to PW-18, was placed obliquely over the front of left
side of the chest. The lower end was 3.5 cm upper and inner to the left
nipple and the upper end 6 cm outer to the midline. The size of the wound
was 2.8 cm x 1.2 cm; it was chest cavity deep. The left chamber of the heart
revealed a through and through cut 1.2 cm in length. Death resulted as the
consequence of stoppage of heart, due to collection of blood in the cavity
surrounding the heart. This injury alone was sufficient to cause in the
ordinary course of nature. In the decision reported as Mahesh Balmiki v State
of MP 2000 (1) SCC 319, it was held that:
"XXXXXX XXXXXX XXXXXX
there is no principle that in all cases of a single blow Section
302 IPC is not attracted. A single blow may, in some cases,
entail conviction under Section 302 IPC, in some cases under
Section 304 IPC and in some other cases under Section 326
IPC. The question with regard to the nature of offence has to be
determined on the facts and in the circumstances of each case.
The nature of the injury, whether it is on the vital or non-vital
part of the body, the weapon used, the circumstances in which
the injury is caused and the manner in which the injury is
inflicted are all relevant factors which may go to determine the
required intention or knowledge of the offender and the offence
committed by him. In the instant case, the deceased was
disabled from saving himself because he was held by the
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 24
associates of the appellant who inflicted though a single yet a
fatal blow of the description noted above. These facts clearly
establish that the appellant had the intention to kill the
deceased. In any event, he can safely be attributed the
knowledge that the knife-blow given by him was so imminently
dangerous that it must in all probability cause death or such
bodily injury as is likely to cause death.
XXXXX XXXXXX XXXXX"
In the case of State of Karnataka v. Vedanayagam (1995) 1 SCC 326 the
accused inflicted one knife injury on the chest resulting in instant death and
the trial court convicted him under Section 302 but on appeal to the High
Court the conviction was altered to one under Section 304 Part II. When the
matter was brought to the Supreme Court, the judgment of the Trial Court
convicting the accused under Section 302 was restored and the Court
observed that:
"XXXXXX XXXXXX XXXXXX
there is no doubt whatsoever that the accused intended to cause
that particular injury on the chest which necessarily proved
fatal. Therefore clause thirdly of Section 300 IPC is clearly
attracted"
XXXXXX XXXXXX XXXXXX.
In Dhupa Chamar v State of Bihar 2002 (6) SCC 506, the Court,
similarly observed that:
"XXXXXX XXXXXX XXXXXX
The above circumstance would show that the accused
intentionally inflicted the injury and the same would indicate
such a state of mind of the appellant Dhupa Chamar that he
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 25
aimed and inflicted the injury with a deadly weapon. In the
absence of evidence or reasonable explanation to show that this
appellant did not intend to inflict injury by bhala in the chest
with that degree of force sufficient to rupture important blood
vessels and cutting of aorta and other artery, it would be
perverse to conclude that he did not intend to inflict the injury
that he did. When once the ingredient "intention" is established
then the offence would be murder as the intended injury was
sufficient in the ordinary course of nature to cause death.
Therefore the inevitable conclusion would be that Appellant 1
Dhupa Chamar has committed the offence of murder and not
culpable homicide not amounting to murder. This being the
position, we do not find that the High Court has committed any
error in upholding conviction of Appellant 1 Dhupa Chamar
under Section 302 of the Penal Code.
XXXXXX XXXXXX XXXXXX"
So far as Pradeep and Pravesh are concerned, no doubt PW-3 attributed the
role of their being facilitators, in the sense that they restrained the deceased,
which helped Devender to attack him. Even if one were to assume the worst
against these accused, that they were aware that Devender was armed with a
dangerous weapon, which he would have used, in all likelihood, the nature
of common intention to fix joint criminal responsibility for murder, under
Section 302 IPC has not been proved. There is no doubt that these accused
accompanied the others. However, the sequence of events shows that there
was no apparent pattern; Satender pulled out PW-3, whereas Devender
pulled out a knife, and attacked the deceased. Pradeep and Parvesh were
unarmed. Though they shared a common intention with Satender, that by
itself is not conclusive for the Court to hold that the common design was to
commit murder. In this context, the court recollects the decision in Vencil
Pushparaj v State of Rajasthan, AIR 1991 SC 536 to the following effect:
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 26
"XXXXXX XXXXXX XXXXXX
The only question that arises for consideration is whether the
facts and circumstances of the case unerringly fasten the
appellant with the criminality in question so as to robe him with
the aid of S. 34 IPC. The High Court disagreeing the review of
the Trial Court found the appellant guilty holding thus:-
"We are fully convinced that Pappu caught hold of Durga
and kept him pinned down till Kannu had stabbed him
five times over on the chest, and abdomen region.
Pappu's conduct in running away from the scene of
occurrence also lends corroboration to the conclusion
that he participated in the murder of Durga by Kannu
........."
5. Admittedly, Kannu at time of his arrest by the SHO on the
morning of the very next day i.e. 31-8-72 was having injuries on
his person namely on the fingers of his hands, feet, back and left
thigh which injuries are not explained by the prosecution. The
evidence of PW-22 indicates that the deceased and the
appellant were very close friends and that this itself annoyed
Kannu who found fault with the appellant and questioned him
as to why he was having friendship with his enemy, namely, the
deceased. These facts indicate that the occurrence had
happened not in the manner as put forth by the prosecution but
under different circumstances.
6. Further a scrutiny of the materials placed before us does not
spell out that the appellant had shared the intention of Kannu in
murdering the deceased and that he held the deceased in order
to facilitate Kannu to stab the deceased. There is no material
worth-mentioning even to draw an inference that the appellant
and Kannu had acted in concert and/or there was existence of a
pre-arranged plan to commit the murder of the deceased.
Therefore, we are unable to infer the common intention on the
part of this appellant with Kannu.
XXXXXX XXXXXX XXXXXX"
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 27
In a similar vein, it was held in Harbans Nonia v State of Bihar AIR 1992
SC 125, that:
"XXXXXX XXXXXX XXXXXX
Shyambali Nonia has been convicted under Section 302 IPC
which is not under challenge before us. Therefore, we have to
examine as to what is the nature of the offence these two
appellants committed in the circumstances of the case. The
various circumstances attending the prosecution which we have
pointed out above show that these two appellants did not have
any intention to participate with Shyambali Nonia to cause the
death of the deceased. At the same time it is, however,
absolutely impossible to relieve them of any liability whatsoever
in connection with the stab injury which was facilitated by their
catching hold of the deceased when Shyambali Nonia was
inflicting the stab wound. Hence, there is no escape for the
conclusion on the evidence available that these two appellants
shared at least the common intention with Shyambali Nonia to
cause grievous hut punishable under Section 326 read with
Section 34 IPC vide State of U.P. v. Ram Kishun [(1976) 3 SCC
449 : 1976 SCC (Cri) 443]. For all the reasons stated above,
we set aside the conviction of these two appellants under
Section 302 read with Section 34 IPC and the sentence of
imprisonment for life, instead convict them under Section 326
read with Section 34 IPC.
XXXXXX XXXXXX XXXXXX"
In the absence of any clear cut motive, or proof of pre-meditated design,
what this court discerns is that first PW-3 was dragged out, after which the
deceased was pulled out from his home. The intention of all the accused who
went to the victim's house, is undoubtedly suspect. Yet, it is difficult to
conclude without any doubt that Pradeep and Parvesh shared the common
intention with Devender that he would commit the offence punishable under
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 28
Section 302 IPC since they could not have been aware that injury would be
inflicted on such a vital part of the body. In these circumstances, they can be
attributed that the acts of Devender would have resulted in injuries on the
deceased, that would have led to death in the ordinary course of nature.
Their conviction under Section 302 IPC is accordingly modified to one
under Section 304 Part I. The other conviction under Section 452/149 IPC is
affirmed. The conviction of Devender too, for offences under Sections
452/149 IPC is maintained.
32. As regards PW-3, no doubt he is an injured witness. Yet, the injuries
suffered by him, were simple, according to the attending doctor, PW-4. His
MLC, PW-4/D also states that there was a single sharp edged weapon injury
on the arm; it was evaluated as simple. Therefore, Satender, who inflicted
that injury, is guilty for the offence punishable under Section 324, IPC. The
others who held PW-3 to facilitate his attack, i.e Gulab Rai and Dharambir,
are guilty by association, by theory of joint responsibility, on account of
common intention, under Section 34, IPC. Their conviction under Section
452/149 IPC is also affirmed. As far as Mahendra is concerned, his
conviction under Section 452 IPC is left undisturbed.
33. In view of the above findings, the conviction of Devender is
maintained in respect of all the offences. The conviction of Pradeep and
Pravesh, for the offence under Section 302 IPC is substituted to one under
Section 304-I/34 IPC. Their sentence is modified from life imprisonment to
imprisonment for 10 years each. Their sentences for the offences punishable
under Section 452/149 IPC are confirmed.
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 29
34. The conviction of Gulab Rai, Satender and Dharamvir, having been
modified to one under Section 324, instead of Section 307 IPC, the sentence
is accordingly altered to 2 ½ years. The conviction and sentence under
Sections 452/149 IPC, is left undisturbed. The conviction of Appellant
Mahender under Section 452/149 IPC is left undisturbed. In all the cases, the
sentences of fine are left undisturbed.
35. All the sentences in respect of all the appellants shall run
concurrently. All the Appellants shall be entitled to the benefit of Section
428 Cr. PC, and the period or periods of remission, available to each of
them, according to law. In the event of any one of the accused having
undergone the period of sentences, he or they shall be released, if not
required in any other case. The Appeals are disposed of in the above terms.
S. RAVINDRA BHAT
(JUDGE)
S.P. GARG
(JUDGE)
MARCH 30, 2012
Crl.A. 244/2010, Crl. 317/2010, Crl.A. 162/2010 & Crl.A. 163/2010 Page 30
