Delhi High Court

Saurav @ Khokan vs State (Nct Of Delhi) on 22 November, 2012

Author: Sanjiv Khanna

$~12 & 13
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   DECIDED ON : 22nd November, 2012


+      CRL.A. 817/2012

       MONTU @ BAHADUR                       ..... Appellant
               Through : Mr.S.K.Sethi, Advocate.
                      versus
       THE STATE (NCT OF DELHI)               ..... Respondent

Through : Mr.Sanjay Lao, APP.

Insp.Digvijay Singh, PS Ambedkar Nagar.

+      CRL.A. 1111/2012

       SAURAV @ KHOKAN                      ..... Appellant
               Through : Ms.Rakhi Dubey, Amicus Curiae.
                      versus
       STATE (NCT OF DELHI)                           ..... Respondent
                     Through :        Mr.Sanjay Lao, APP.
                                      Insp.Digvijay Singh, PS Ambedkar
                                      Nagar.

        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
        HON'BLE MR. JUSTICE S.P.GARG

SANJIV KHANNA, J. (OPEN COURT)

1. The appellants impugn their conviction under Section 302

and 394 read with Section 34 of the Indian Penal Code 1860 (IPC for

short). For the offence under Section 302 IPC, the appellants have been

sentenced to life imprisonment and fine of `10,000/- each, in default of

payment of fine, they are to undergo rigorous imprisonment for two

months. For the offence under Section 394 IPC, the appellants have been

sentenced to rigorous imprisonment for ten years and fine of `2,000/-

each, in default of payment of fine, they are to undergo rigorous

imprisonment for fifteen days. The prosecution case, accepted by the Trial

Court, is that the two appellants had committed robbery at N-10, Sanik

Farm, New Delhi, on 3rd October, 2003, at about 08.00 P.M., and in the

course, committed murder of Ajay Kumar, who expired the same day, and

injured Pamelia Parkash (PW-2).

2. Homicidal death of Ajay stands established, beyond doubt,

by Dr. Asad (PW-7) who conducted and proved the MLC marked Ex.PW-

7/A. He has stated that, on 3rd October 2003, Ajay was brought to the

hospital but, on clinical examination, it was observed that he had already

expired.

3. As per the Post Mortem Report (Ex. PW-3/A) and the

statement of Dr. Chitranajan Behra (PW-3), who had conducted the post-

mortem, the deceased Ajay had the following ante mortem injuries :

"1. Chop wound of length 17 cm., gaping 4.5 cm., abrasion at upper margin, obliquely placed over left upper neck 4 cm. below left mastoid process, inner end 3 cm

lateral to anterial mid line, 11 cm. above the left shoulder tip and 150 cm. from left heel. Under-mining occurs in downward and back ward direction with depth ranging from 4 cm. to 6.5 cm. where the medial end is deep. On dissection over the wound underlying subcutaneous tissues, left sterno- cleidomastoid muscle, left external jugular vein, left internal jugular vein, left cartid artery, spine of c3 and c4 is cut associated with haematoma.

2. Chop wound of length 6 cm. gaping 1 cm. obliquely present over left upper postero-lateral neck, 1 cm. below and parallel to injury no.1, inner end 12 cm. Left lateral to anterior midline, undermining occurs in downward and backward direction with depth 2 cm. On dissection over the wound the underlying suhcutaneous tissues, muscles and occipital bone is cut associated with aematoma.

3. Chop wound of length 11 cm. gaping 5 cm. bone deep obliquely present over the left neck in middle 1/3 rd 1.5 cm. below and parallel to injury no.2 medial end 7.5 cm. left lateral to midline. Undermining occurs in downward and backward direction. On dissection over the wound the subcutaneous tissues left sterno-cleidomastoid muscle, underlying vessels, spine of vertical coloumn c5 cut associated with haematoma.

4. Superficial incised wound of length 3 cm. horizontally present over left upper face 1 cm. below and lateral to lateral angel of left eye.

5. Multiple contusion of size ranging from (9 cm. x 5 cm.) to (5 cm. x .5 cm.) obliquely placed over left shoulder region anterior side. "

4. PW-3 had further opined that the cause of death was

hemorrhagic shock, as a result of injury No.1, 2 and 3, caused by a heavy,

sharp-edged weapon. Injury No.1 and 3 were sufficient to cause death

individually, as well as collectively, in the ordinary course of nature.

Injury No.4 was caused by a sharp-edged weapon and injury No.5 was

caused by blunt force.

5. Dr. Rakesh Yadav (PW-6), who proved injuries caused to

Pamelia Parkash (PW-2), has stated that, on 3rd October 2003, PW-2 was

brought with the alleged history of trauma and vomiting, to the hospital,

and, on examination, there was swelling tenderness on occipital region

and 1 cm. cut on left side occipital region. Her MLC was proved as

Ex.PW-6/A. In the cross-examination, he has stated that the injuries could

be caused by a sharp cut or blunt object but it cannot be determined what

weapon was used, to cause these injuries, because of excessive swelling.

6. The core issue, argued before us, pertains to whether the

appellants were the perpetrators of the said crime.

7. FIR No.497/2003 was registered under Section

302/394/397/34 IPC, in Police Station, Ambedkar Nagar, on 4th October

2003, on the basis of statement by Aditya Parkash (PW-1) S/o Pamelia

Parkash (PW-2). The FIR records that PW-1, on returning home, on 3rd

October 2003, at about 08.00 P.M., entered the house via the iron-gate,

which he opened from inside, and then he went through the kitchen door.

He saw his mother, in an injured condition, in his parents‟ bed room. She

was lying on the bed and was trying to get up. In front of the bed, on the

floor, Ajay Kumar, the house cook, was lying with his throat slit and

blood oozing out. His hands and legs were tied. Bed room‟s almirahs were

open and articles, including jewellery boxes, were found scattered around.

PW-1 raised an alarm „chor chor‟, and, on that, his gardener and servant

came, from the servant quarters. One or two neighbourhood servants also

came to the spot. Ajay‟s hands and legs were untied. Telephone No.100

was dialed and ambulance was called. PW-2, his mother, was taken to

Modi Hospital, where she was admitted. Ajay was taken to Batra Hospital

where he was admitted but declared as "brought dead". At this stage, we

may record that none of the witnesses, including PW-1, knew the name,

address or the identity of the assailants who had entered the house, had

committed the robbery and inflicted injuries on Ajay, who subsequently

died because of the injuries, and injuries caused to PW-2. The identity of

the assailants/robbers was unknown.

8. On 21st February 2004, the appellants Saurav @ Khokhan

and Montu @ Bahadur were arrested, in FIR No.100/2004, Police Station,

Mehrauli, under Section 186/353/307/34 IPC and Section 25/27/54/59

Arms Act. The prosecution alleges that the two admitted their

involvement in the present case and disclosed the names of two other

assailants/associates as Monu and Mona. The disclosure statements

(Ex.PW-19/A and Ex.PW-19/B), of the two appellants, were recorded by

Insp.Vikram Singh (PW-21), Investigating Officer of FIR No.100/2004,

Police Station Mehrauli. Statements or confessions, made by the accused,

to the police officers when in custody, are admissible to the extent the

statement or portion thereof is covered under Section 27 or 8 of the

Evidence Act. Otherwise or other parts these statements/confessions are

inadmissible, under Section 25 and 26 of the Evidence Act. We do not

think that reliance can be placed upon the aforesaid disclosure statements,

under Section 27 of the Evidence Act, as no recoveries have been made.

Section 8 of the Evidence Act can be applied to the limited extent that the

arrest, of the two appellants, gave a lead/clue to the police through which

they solved FIR No.497/2003, registered in the present case.

9. After the arrest of the appellants, on 21st February 2004, in

FIR No.100/2004, an application for conducting Test Identification Parade

(TIP), by PW-2, was moved by the prosecution. PW-2, in the TIP, held

on 5th March, 2004, identified the appellant Saurav. The appellant Montu

@ Bahadur refused to participate in the TIP proceedings conducted by

Ms. Barkha Gupta-Metropolitan Magistrate (PW-18). We shall refer to

her statement subsequently, when we examine the contention, of the

appellants, that the TIP identification was invalid and inconsequential.

10. Pamilia Prakash (PW-2), an housewife, who is the injured

victim and also an eye witness, in the present case, has, in clear and

categorical terms, recapitulated the occurrence and identified the two

appellants, as perpetrators of the crime. She has stated that the appellants

had tress-passed in the house, caused injuries to her and had committed

the robbery. She recollected that, on 3rd October, 2003, she came back to

the house and was resting when she noticed that four unknown boys had

entered her bed room, with her servant Ajay. One boy pounced on her and

covered her mouth and her nose, in such a way, that she could not breath.

The other boy caught hold of her hands and pushed her down so that she

could not get up. They demanded keys of the almirahs which were given

to them. They opened the cup-boards and took out jewellery, silver,

watches and cash. They forced Ajay to sit down on the floor. They also

pushed her down and made her sit near him. One of the boys asked her to

give more cash. She went to the cupboard and took out her wallet and

gave the cash. However, the assailants/ robbers were not satisfied and

wanted more cash and jewellery. She went towards the telephone to call

her husband, to arrange for more money, when one of the assailants/

robbers, who had a dagger and was repeatedly asking for more money,

closed her mouth. Then she was attacked, with the dagger, on the back of

the head and she became unconscious. After some time, when she

regained semi consciousness, she found her son had just entered the house

and Ajay was on the floor, with his throat slit and blood oozing out. She

was removed to the hospital, by her son, where she was medically

examined. She later came to know that Ajay had expired. She averred that

she could identify the culprits. She correctly identified Saurav to be the

one who had the „dao‟, had closed her mouth and had demanded jewellery

money/cash. She also identified Montu @ Bahadur, as one of the

assailants, who had removed the money and jewellery items from the

almirah. It is relevant to note here that the third accused Abdul Mohan

was not identified by PW-2, in the Court, and she was sure/certain that she

had not seen him, at the time of the occurrence. She was cross-examined,

by the learned APP, but she stuck, on her stand, that accused Abdul

Mohan was not involved in the offence and he was accordingly acquitted,

by the Trial Court.

11. PW-2 has averred that she had gone to Tihar jail, to identify

the accused person, and had identified one of them. She identified and

proved the TIP proceedings which were marked as Ex.PW-2/A.

12. We have examined the cross-examination of PW-2, but there

is nothing doubtful or debatable about the identification of Saurav and

Montu, made by PW-2. In the cross-examination, PW-2 has stated that the

assailants/ robbers had not covered their faces at the time of the incident.

She denied that she had been tutored or was shown the accused, before her

statement was recorded.

13. Learned counsel for the appellants has submitted that PW-2,

in her examination-in-chief, has used the word „boy‟. Our attention was

drawn to the statement of PW-2, recorded under Section 161 Cr.P.C.,

where she had stated that one of the assailants was 20 to 25 years old and

other three assailants were in the age group of 18 to 20 years. As per the

Trial Court judgment, the appellant Saurav @ Khokan was 40 years and

Montu @ Bahadur was 46 years old, on the day of their conviction i.e. on

24th December 2011. The order on sentence was pronounced nearly seven

years from the date of occurrence. Estimation regarding age, on the basis

of physical appearance, can be deceptive and is always based on

approximation. This estimation, on the basis of physical appearance, given

under Section 161 Cr.P.C. statement, cannot be the sole ground to

discredit the categorical identification, made in the Court/TIP

proceedings. We do not think the statement, under Section 161 Cr.P.C.,

creates doubt about the identity or identification of the appellants in the

court. PW-2 has referred to the assailants as "boys", in her statement, but

had, at certain places, referred to them as „person‟. We do not think the

aforesaid word (boy) creates a doubt about the appellants‟ identification,

made by PW-2, in the Court. Identification by the victim who is also an

injured eye witness has its own sanctity, credence and acceptance if it is

found that the evidence is credible then it merits acceptance and reliance.

It should not be discarded.

14. It is relevant to note that, in the present case, the

Investigating Officer Insp. Jagdish Yadav (PW-23) had moved an

application, for TIP proceedings and identification of the two appellants,

by PW-2. The application was moved on 24th Feb 2004, within two days

of the arrest of the appellants, in FIR No.100/2004. The TIP was

conducted on 5th March, 2004 in the presence of Ms. Barkha Gupta (PW-

18). In the TIP proceedings, conducted in the Tihar jail, on 5th March,

2004, the appellant Montu @ Bahadur refused to participate in spite of

warning and caution by PW-18. The TIP proceedings were proved by

PW-18 as Ex.PW-18/B. The same day, the appellant Saurav @ Khokan

was produced and he agreed to join the TIP proceedings. When the

appellant Saurav was produced, before PW-18, no one else was present.

The appellant Saurav was asked to pick other under trials, of similar

physique and built. All necessary and required precautions were taken and

the door of the room was closed so that the appellant could not be seen.

The appellant had one cut mark, in the middle of his eye brows which was

an identification mark. Accordingly appellant and all other under trials,

part of the live up assembly, were asked to cover the said area, with a

paper slip, so that the said mark could not be seen and used as the basis

for identification. Yet, PW-2 correctly identified the appellant Saurav @

Khokan, as one of the assailants/ robbers, in the TIP proceedings (marked

and proved as Ex.PW-2/A). We may note here that the counsel for the

appellants did not cross-examine PW-18.

15. Learned counsel for the appellant-Saurav has submitted that

the TIP proceedings should be disbelieved as, in the present case, the

participants were asked to affix a paper slip, on their face, to hide the

mark on the face of the appellant. We do not agree. As observed above,

this made the task of identification more difficult and accordingly, free

from doubt. We do not think the decision in „Chaman vs. State of UP‟,

AIR 1992 SC 601 has any application in the present case. In Chaman case

(supra) the size of paper rendered the TIP unreliable. There is no such

allegation, in the present case. The paper slip, put on the head of the

appellant, did not render identification or recognition impossible or

unreliable. No such suggestion was given to PW-2 or PW-18.

16. Learned counsel for the appellants submitted that PW-4

(Chhuna), one of the servants in the house, did not recognize the two

appellants and therefore, the testimony of PW-2 should be rejected. We

have examined the statement of PW-4 who was working as a servant. He

has stated that he was taking rest in his room, after meals, when 2 or 3

persons entered his room. They grabbed his mouth and tied his hands,

with a rope, from behind. He was asked to stay quite otherwise they

threatened that he would be killed. They pushed him and covered him

with the blanket. Thereafter, they left the room. After five or ten minutes,

he managed to cut the rope, with a knife, open the door and came out,

from the room. He found that blood was oozing out, from PW-2‟s head,

who was standing at the gate. She asked him to see Ajay and accordingly,

he went inside the room of PW-2. He found Ajay, on the floor, with his

neck slit and his hands and legs tied. In the meantime, other people came

there. The police reached the spot and took Ajay to the hospital. He

recollected that there was one tall boy, with the knife in his hand, but he

was not able to identify the assailants because it was dark, at the time of

incident. He was cross-examined, by the Add L.P.P. The statement of

PW-4 reflects his own version, of the incident, and what he had

recollected. This does not mean that PW-2, who is an injured eye witness,

had no occasion to see the assailants and, corollary, her identification

should be disbelieved. Assailants had entered her bed room, harmed her

and had continuously pressurized her to give money. It is reasonable to

accept that she had ample opportunity to see the assailants. Her testimony

is truthful, credible and should be accepted. Since she was in doubt, about

the involvement of the third accused Abdul Mohan, she accordingly, did

not identify him in the Court.

17. In law, testimony of an injured witness has its own relevance

and efficacy, as has been reiterated in Abdul Sayeed v. State of Madhya

Pradesh, (2010) 10 SCC 259:-

"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness."

18. In light of observations above, we uphold the conviction of

the two appellants under Section 302 IPC read with Section 34 IPC for

murder of Ajay and under Section 397 IPC read with Section 34 IPC for

robbery with injuries. The sentence of imprisonment and fine is also

affirmed. However, we modify the direction of rigorous imprisonment in

default of payment of fine to simple imprisonment, for a period of two

months, for failure to pay fine of `10,000/-, for the offence under Section

302/34 IPC, and simple imprisonment, for fifteen days, for fine of

`2,000/- imposed for offence under Sections 394 IPC and 397 IPC. The

appellants should be entitled to benefit of Section 428 Cr.P.C. The appeals

are accordingly disposed of.

19. Ms.Rakhi Dubey, Advocate, who has appeared as Amicus