* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRIMINAL APPEAL No. 538/2011
Date of decision: 2nd April, 2013
KARTAR ....Appellant
Through Mr. Sumer Kumar Sethi, Advocate.
Versus
STATE OF THE NCT OF DELHI ....Respondent
Through Mr. Sanjay Lao, APP for the State.
+ CRIMINAL APPEAL No. 539/2011
PAWAN KUMAR ....Appellant
Through Ms. Nandita Rao, Advocate.
Versus
STATE OF THE NCT OF DELHI ....Respondent
Through Mr. Sanjay Lao, APP for the State.
+ CRIMINAL APPEAL No. 561/2011
RAM KISHAN ....Appellant
Through Mr. Bhupesh Narula, Advocate.
Versus
STATE OF THE NCT OF DELHI ....Respondent
Through Mr. Sanjay Lao, APP for the State.
+ CRIMINAL APPEAL No. 404/2013
RAJESH ....Appellant
Through Mr. Bhupesh Narula, Advocate.
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 1 of 28
Versus
STATE (NCT OF DELHI) ....Respondent
Through Mr. Sanjay Lao, APP for the State.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
SANJIV KHANNA, J.:
1. Kartar, Pawan Kumar, Ram kishan and Rajesh have preferred
the instant appeals questioning their conviction under Section 302/34
of the Indian Penal Code, 1860 (IPC) vide impugned judgment dated
14th February, 2011 for committing the murder of Dinesh, at about
9:30 p.m. on 25th June, 2007. By an order on sentence dated 23rd
February, 2011, they have been sentenced to undergo rigorous
imprisonment for life and pay fine of Rs.5,000/- each. In default of
payment of fine, the appellants are to undergo Simple Imprisonment
for six months.
2. Homicidal death of Dinesh is not under dispute. Dinesh was
taken to All India Institute of Medical Sciences (AIIMS) on 25th June,
2007 in a PCR Van at about 10.24 p.m. The MLC of Dinesh has been
proved on record as Ex. PW17/A by Dr. C.H. Gyan Singh (PW-17).
According to PW-17, the MLC of Dinesh, Ex. PW17/A was prepared
by Dr. Sameer Jagati who has left the services of the hospital. However
PW-17 identified the handwriting and signature of Dr. Sameer Jagati.
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 2 of 28 PW-17 Dr. C.H. Gyan Singh has deposed that on 25th June, 2007 one
patient, namely, Dinesh, an adult male, aged about 26 years was
brought by Head Constable Suraj Bhan(not examined) in an injured
condition with alleged history of stab wound inflicted at Lal Kuan at
9.30 p.m. with a sharp instrument. The patient was examined and the
following seven injuries were noticed on the person of Dinesh:-
"1. Laceration with exposed subcutaneous fascia 7×4 cm.
2. Laceration over the base occipital area (6×2×2 cm).
3. Laceration over the mouth (upper lip) 3×2 cm.
4. Stab injuries at the abdomen with exposed small intestine.
5. Old scar marks over the chest.
6. Laceration over the left iliac.
7. Laceration over the left elbow."
3. MLC Ex PW-17/A records that patient (Dinesh) was not fit for
statement. PW-17 was not cross-examined.
4. Dinesh died on 27th June, 2007 and thereafter post mortem was
conducted on his body by Dr. Sukhdeep Singh. The post mortem report
which is Ex PW-12/A however, stands proved from the statement of
Dr. Sushil Sharma (PW-12). He identified the handwriting and
signature of Dr. Sukhdeep Singh. As per the post mortem report Ex.
PW-12/A, the deceased had suffered the following injuries:-
"1. A surgical stitched wound vertically placed on the abdomen running from 3 cm above the
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 3 of 28 umblicuous and 14 cm below it (total length 17 cms). The wound confined in to left side of abdomen running up to a distance of 9 cm. The wound was opened and after removal of stitches, the track of the horizontal would was found to be running vertically obliquely (downward backward and laterally) to a depth of 15 cm. 1.5 to 2 liter of blood clot seen in peritoneal cavity. All superficial muscles, fascia and mesentry were cut in the way.
2. Incised wound placed obliquely on the middle of the dorsum of right forearm 4 cm in length.
3. Incised wound placed horizontally on the dorsum of right finger.
4. A incised wound 10 cm in length on the posterior lateral aspect of back (middle right side).
5. A incised wound 7 cm in length obliquely placed on the upper lip.
6. Multiple incised wounds size 4 to 12 cms obliquely placed over the anteromedial aspect of right leg with tailing towards right side.
7. Incised wounds horizontally placed over the right knee 3 cm in length.
8. Incised wound obliquely placed 4 cm in length over the lateral aspect of the right ankle.
9. An abrasion 3×2 cm placed over anterior aspect of middle of the right shin.
10. A incised wound 5 cm length present over the occipital region 1 cm below this wound. There is another wound 7 cm in length.
11. Multiple superficial incised wound size 5 to 12 cm, 5 in number running obliquely over the left side of leg.
12. A superficial incised wound 4 cm in length obliquely placed present on the middle of the thigh.
13. Contusion in the lift knee.
14. Contusion over the left ankle.
15. Contusion over the left upper eye lid with a lacerated wound 1 cm in size in the middle of the root of eye lid.
16. A incised wound 3 cm in length running from lateral aspect of right ala of nose and then obliquely downward forward left side on upper and lower lip associated with swelling.
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 4 of 28
17. A contusion with abrasion in an area of 3×3 cm over the left cheek eminence.
18. A incised sutured wound of length 45 cm present 4 cm below the left pinna, obliquely running downward and crossing the lower boarder of left mandible.
19. A linear abrasion of length 30 cm × .5 cm width running obliquely from left shoulder to the manubrium sterni, obliquely placed with tailing towards left side.
20. A linear incised wound 4 cm in length vertically placed on the lower one third of anterior aspect of left forearm.
21. A incised wound 8 cm in length present over the dorsum of hand running up to the base of thumb.
22. Multiple incised wound 4 to 6 cm in length present 3 cm below elbow.
23. Incised wound over the lateral aspect of arm 4 cm in length and obliquely placed.
24. Incised wound obliquely placed 4 cm in length over the lateral aspect of left arm.
25. Incised wound 12 cm in length running vertically downward over dorsum of left forearm.
26. Multiple abrasions over the lateral aspect of abdominal wall on left side."
5. According to the post mortem report Ex PW-12/A, the cause of
death was shock (Septicemic) consequent upon stab injury on the
abdomen (injury No.1). Injury Nos.1 to 8, 10 to 12, 16, 18 and 20 to
25 were caused by a sharp edged weapon and injury Nos.9, 13 to 15,
17, 19 and 26 were caused by blunt force. Stab Injury No.1 was
sufficient to cause death in ordinary course of nature. However, other
injuries could also collectively lead to death in ordinary course of
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 5 of 28 nature. The time of death was opined to be half a day before the
autopsy was conducted.
6. Dr. Sushil Sharma (PW-12) also proved the opinion, Ex PW-
12/B tendered by Dr Sukhdeep Singh regarding the weapon of the
offence which consisted of stones Ex P-2 and knife with a broken
handle, Ex P-1. PW-12 has deposed that injury Nos. 1 to 8, 10 to 12,
16, 18 and 20 to 25 mentioned in postmortem report, ExPW-12/A
could be caused by Ex 1 (the knife with the broken handle). He further
deposed that injuries no. 9, 13 to 15, 17, 19 and 26 could either be
produced by handle of knife or due to the blunt force by fall on the
stones.
7. On the question of involvement of the appellants, it is urged by
the learned counsels for the appellants that the eye witnesses, namely,
Smt. Mangi (PW-4) and Shushila (PW-9) are unreliable and their
testimonies are apparently contradictory. In this regard, reference is
specifically made to the statement of Sushila (Ex.PW9/A) recorded
under Section 161 of the Code of Criminal Procedure, 1973 (Cr.P.C.)
to contend that Mangi (PW-4) had reached the spot of occurrence after
the actual incident of stabbing and she was not an eye witness to the
alleged incident. Next, reference is made to the two site plans,
Ex.PW20/A (the rough and unscaled site plan) and Ex.PW5/A (the
scaled site plan). From the difference between the two site plans it is
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 6 of 28 pointed out that Mangi (PW-4) could not have seen the occurrence as
the house of deceased-Dinesh was located at a distance of about 70 feet
and the actual place of occurrence as mentioned in the two site plans
was not visible from the residence of Mangi (PW-4). It is stated that
there were a number of houses in between the house of the deceased,
PW-4 Mangi and the place of occurrence therefore, from the house of
Mangi it was not possible to view or see the occurrence. It is stated that
there is a dispute whether Mangi (PW-4) was actually present at the
spot of occurrence as her presence is not recorded or mentioned in the
MLC of Dinesh (Ex.PW17/A). It is urged that the prosecution did not
produce Head Constable Suraj Bhan or any other police officer from
the PCR van to establish the presence of PW-4 Mangi at the spot or in
the hospital. It is also pointed out that rukka was prepared on the basis
of Mangi‟s statement Ex.PW4/A which led to the registration of FIR
No. 615/2007 (Ex PW-2/A) initially under Section 307/34 IPC and not
on the statement Ex PW-9/A furnished by PW-9 Shushila under
Section 161 Cr. P.C. With regard to the registration of FIR, the
Counsel for the appellants submitted that the statement (Ex PW-4/A)
of Mangi was recorded by the police officers at police post at 2 a.m.
past midnight on 25th June, 2007. However, the FIR in question (Ex
PW-2/A) had been recorded at 12.45 a.m. and accordingly, it is
contended that FIR has been ante-timed making the prosecution case is
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 7 of 28 inherently unreliable. It is next contended the investigation is vitiated
on two counts. Firstly, it is highlighted that the crime team was not
called to the spot as no crime team report is on record. Secondly,
before the trial court the so-called disclosure statements of the
appellants Kartar, Rajesh and Ramkishan recorded by the Investigating
Officer, were not filed or were not traceable. On the question of arrest
of the four appellants, the Counsels for the appellants have drawn our
attention to the arrest memos Ex.PW11/C1 to Ex.PW11/C4. It is
submitted that the arrests have been shown to be made between 5 p.m.
to 5.25 p.m. on 26th June, 2007 whereas per the prosecution the
appellants were arrested between 5:00 a.m. to 5:25 a.m. near Badarpur
on the 26th June, 2007. Our attention is also drawn to the statements
made by the defence witnesses i.e. DW-1 to DW-5 for disputing the
place from where the appellants were apprehended. It is also contended
that the identification by the alleged eye-witnesses should be
disbelieved as no public witness or neighbours, who were residing in
the said locality where the alleged incident took place, were joined in
investigation and their statements were not recorded by the police.
8. On the question of occurrence, the prosecution case relies upon
the testimony of Mangi (PW-4) and Sushila (PW-9). Mangi (PW-4) is
also the complainant on whose statement the rukka (Ex PW-4/A) and
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 8 of 28 the FIR No (Ex.PW2/A) was registered. PW-4 Mangi was residing at
B 334, Chungi No.2, Lal Kuan, Delhi and has deposed that on the date
of occurrence at about 9.30 p.m. she was present in her house.
Deceased Dinesh, brother of her husband, was residing in a house just
in front of her house in the same street. On the date of incident, the
appellant Ram Kishan, whom she identified correctly in the court,
along with his two brother-in-laws namely Sunder and other unnamed,
were present in the house of the deceased Dinesh. At about 9.00-9.30
p.m. while she was in her house, she heard noise and cries of deceased
Dinesh saying "Maar Diya, maar diya" which was when she came out
of the house. She saw that the four appellants whom she knew from
before along with unknown assailants were causing injuries to Dinesh
by chhuri, knife, swords, stones, etc. PW-4 correctly identified the four
appellants namely Ram Kishan, Kartar, Pawan and Rajesh in the court.
PW-4 deposed that Sushila (PW-9), wife of Dinesh was also present
there. PW-4 made a telephone call to police on number 100. The
appellants ran away from the spot. It rained thereafter. The police
removed deceased Dinesh to AIIMS Hospital. She has deposed that
motive for committing the offence was that daughter of Bulli, brother-
in-law (saala) of Dinesh, had got married to the younger brother of
deceased Dinesh against the consent and wishes of the parents of the
couple. This marriage had caused annoyance to the appellants as
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 9 of 28 Appellant Pawan is son of Bulli. PW-4 testified that the she had also
gone to the hospital and from the hospital she went to police post
Prahaldpur where her statement was recorded by the police and the
same is Ex PW-4/A. PW-4 has further deposed that she had seen the
appellant Rajesh holding a chhuri (knife), appellant Pawan was holding
a sword and appellant Ram kishan had hit Dinesh with a stone on the
back side of his head. However, as it was night time, she deposed that
she could not observe the specific weapon used by each of the
appellant. She identified the knife, which was produced and shown to
her, as the same which was used by the appellants. The knife was
marked Ex.P1.
9. We have gone through the examination-in-chief and the cross-
examination of PW-4. In the cross-examination as well as the in the
examination-in-chief, PW-4 has mentioned names of Sunder and
another person, whom she described as the brother-in-laws of the
appellant Ram kishan. However, examination in chief she could not
recollect the name of the other person who was subsequently identified
by PW-4 in her cross examination as Vinod. Sunder and Vinod were
not charge-sheeted and have not been prosecuted. However, on the
question of involvement of the four appellants, PW-4‟s statement is
clear and categorical which has not been demolished in cross
examination. The four appellants, as per PW-4, were involved in the
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 10 of 28 occurrence and had actually caused injuries to Dinesh. She has seen
the said occurrence in which injuries were caused.
10. In the examination-in-chief as noted above, PW-4 has stated that
she had gone to the hospital and from the hospital she came back to the
Police Post Prahladpur where her statement (Ex.PW4/A) was recorded
by the police. Similar statement has also been made in the cross-
examination by PW-4. In cross examination, Mangi PW-4 further
stated that her statement (Ex PW-4/A) was recorded by the police
around 2:00 am past midnight. In this premise it is urged by the
counsel for the appellants that the FIR which was registered at about
12:45 am on the statement of Mangi PW-4 is ante timed. Statement
(Ex.PW4/A) of PW-4 was recorded by SI Ramesh Singh (PW-3). PW-
3 SI Ramesh Singh has deposed that on 25.06.2007 he was posted as
sub inspector at police post Prahaladpur when he received DD No 31
and 32 (Ex PW-14/A and B). He along with Ct Pratham (PW-11)
reached House No. D-334 Chungi No.2 Lal Kuan where considerable
amount of blood was lying on the road. No eye witness was present on
the spot and PW-3 was informed that injured Dinesh had been
removed to the hospital by a PCR Van. PW-3 along with Ct. Pratham
(PW-4) and Ct. Tej Ram (PW-15) reached AIIMS hospital where they
found injured Dinesh admitted in the hospital. In the hospital, he met
Mangi (PW-4) who identified herself as an aunt of Dinesh. PW-3 has
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 11 of 28 deposed that he recorded the statement, Ex PW-4/A of PW-4 Mangi at
AIIMS Hospital and when he had reached there, he found that the
deceased Dinesh was admitted in the hospital in an injured condition.
He has further deposed that he prepared rukka by making endorsement
(Ex PW-3/A) on the said statement (Ex.PW4/A) made by PW-4
Mangi. Thereafter, rukka was sent to police station through Constable
Tej Ram for registration of FIR, which was initially registered under
Sections 307/34 IPC. Thereupon, PW-3 went to the spot and met SI
Nirbhay Kumar (PW-20), who took over investigation of the case after
the registration of the FIR.
11. Similarly, Constable Pratham Singh (PW-11) has deposed that
on 25th June, 2007, after DD Nos. 31 and 32 were received, he along
with SI Ramesh Singh (PW-3) had reached House No. B-334, Chungi
No.2, Lal Kuan and at the spot they came to know that the injured
Dinesh had been removed to the hospital. He along with PW-3 and
Constable Tej Ram (PW-15) went to the AIIMS Hospital where
injured Dinesh was admitted, but was declared unfit for statement by
the doctor. Mangi (PW-4) was present in the hospital and her
statement (Ex.PW4/A) was recorded by SI Ramesh Singh (PW-3).
Thereafter, PW-3 made an endorsement on the said statement and
„rukka‟ was dispatched through Ct. Tej Ram (PW-15) to the police
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 12 of 28 station for registration of FIR. After registration of FIR, the
investigation was handed over to SI Nirbhay Singh (PW-20).
12. Constable Tej Ram appeared as PW-15 and has testified that he
along with SI Ramesh Singh (PW-3) and Constable Pratham (PW-15)
had gone to the AIIMS Hospital where they met Mangi (PW-4), the
aunt of Dinesh. SI Ramesh Singh made inquiries from PW-4, recorded
her statement and made endorsement on the said statement and gave it
to him for getting the FIR registered at police station Sangam Vihar.
As directed by the investigating officer, he came back at the spot along
with rukka and copy of the FIR.
13. Ex.PW3/A clearly records that rukka was sent to the police
station at 12.20 a.m. on 26th June, 2007 for registration of FIR and the
statement (Ex.PW4/A) of Mangi (PW-4) was recorded in the AIIMS
Hospital. Thereupon, FIR No.615/2007 (Ex PW-2/A) dated 26th June,
2007 was recorded at 12.45 a.m. under Sections 307/34 IPC at police
station Sangam Vihar vide DD No.36A.
14. Afore noted testimonies of the police officers clearly show that
the statement (Ex.PW4/A) of PW-4 Mange was recorded in the AIIMS
Hospital. This is corroborated from the official records in form of FIR
and DD entry and the time mentioned/recorded therein. With respect to
the dispute in time and place of recording statement Ex PW-4/A, it is
noticeable that statement of PW-4 was recorded in the court on 11th
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 13 of 28 November, 2008 nearly one and a half years after the occurrence.
Further, PW-4 had remained with the police for sometime in the
hospital and may be thereafter. It is noteworthy that PW-4 is an
illiterate lady and had put her thumb impression on the statement
recorded in the court. PW-4 has affirmed that she had gone to the
hospital. It is quite possible that PW-4 may not fully remember the
intricacies as to where and at what time her statement was recorded by
the police officials. What is important and relevant is that in
Ex.PW4/A, PW-4 had undoubtedly mentioned and named the four
appellants as the perpetrators of the crime/offence. Thus, if for the sake
of argument we accept and believe that the statement of PW-4 was
recorded at police post Prahaladpur and not in the hospital, it would
not dent or destroy the contents of her statement. The incorrect
mentioning of the place where the statement was recorded will not
nullify the contents of the statement ExPW-4/A.
15. In this background, the Counsel for the appellants contends that
the PW-4 Mangi was never present at the hospital as her name does not
find mention in the MLC of Dinesh, Ex PW-17/A. PW-4‟s visit
and presence in the hospital cannot be doubted. Dinesh was
taken to the hospital in PCR Van and therefore, name
of the police officer Ct. Suraj Bhan is mentioned in
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 14 of 28 MLC of Dinesh(Ex PW 17/A) but this does not show and establish that
PW-4 did not reach the hospital.
16. Shushila, the other eye witness appeared as PW-9, is the wife of
the deceased Dinesh. She deposed that she used to reside with her
husband deceased Dinesh at B-34, Lal Kuan, Badarpur, New Delhi.
Mangi (PW-4) also used to reside in the same locality and her house
was situated in front of their house. She has deposed that Manoj (PW-
10), her husband‟s brother had married sister of the appellant Pawan
and this was objected to by the girl‟s family. Marriage had taken place
one year prior to the alleged occurrence. The girl‟s family had given
threat to her kill her husband Dinesh as well as to Manoj (PW-10).
She has deposed that Mangi (PW-4) had got Dinesh arrested in a
criminal case so that appellants could not harm the deceased Dinesh
who remained under detention. Dinesh was released from the jail on
Saturday and remained in the house on Sunday. The occurrence, in
which Dinesh was killed, had taken place on Monday. She has
deposed that the appellant Ram kishan along with his brother-in-laws
namely Vinod and Sunder were demanding money from her husband
for settlement of the issue of marriage between Manoj (PW-10) and the
appellant Pawan‟s sister against the wishes of the girl‟s family . On
Monday, deceased Dinesh had given the demanded money to appellant
Ram kishan at about 2.30 p.m. or 3.00 p.m. At that time Vinod,
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 15 of 28 Sunder and one Veer Singh were also present. Thereafter, they all sat
together and kept on eating and drinking. PW-9 cooked food for them
and they continued sitting there till the evening. Appellant Ram kishan
left the house and came back with the other appellants. Appellant Ram
kishan, Vinod and Sunder with use of force took her husband Dinesh
out of the house in the street where appellants Pawan, Kartar and
Rajesh were already present. The later three were armed with weapons
like sword, knife and chhuri. Appellant Ram Kishan had hit Dinesh
with a stone on the back side of his head. The four appellants
assaulted Dinesh and caused serious injuries by the weapons which
they were carrying. When she saw her husband being assaulted, she
raised hue and cry. She had also received injury on her left hand palm.
The appellants were assaulting Dinesh badly and when she tried to
save her husband, the appellants pushed her aside. She has deposed
that the appellant Pawan was first to assault and was holding a button
actuated knife and whereas Rajesh and Ram kishan were holding
sword and Chhuri, respectively. She deposed that in the meanwhile
Mangi (PW-4) also arrived at the spot and made a telephone call to the
police. PW-9 became unconscious on seeing the occurrence.
17. Reliance placed by the learned counsel for the appellants on the
statement (Ex.PW9/A) of Shushila recorded under Section 161 Cr.P.C.
for contending that PW-4 Mange was not present at the scene of crime
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 16 of 28 when the alleged incident took place does not help them. In the said
statement, Shushila (PW-9) has referred to the occurrence and in the
end she had stated that her relative Mangi (PW-4), who was residing in
front of her house, came running and her husband was lying there in a
pool of blood. She has also deposed that while her husband was being
beaten, PW-9 had shouted. It may be relevant to state that PW-9 in her
cross-examination was not specifically confronted with the said portion
of Ex.PW9/A, which is being highlighted and shown to us. PW-9 was
confronted with certain other portions of her statement. It is an
accepted and admitted position that the house of Mangi (PW-4) was in
front of the house of deceased Dinesh. The occurrence, in which the
four appellants had participated, had resulted in hue and cry being
raised. Presence of Shushila (PW-9) at the spot being the wife of
Dinesh is natural and usual. On hearing commotion and noises, it was
also natural and normal for PW-4 to rush to the spot to ascertain as
what has happened. Sushila (PW-9), who was already present at the
spot, could not tell when and at what time exactly Mangi (PW-4) had
reached the spot. Sushila (PW-9) has even stated that on seeing the
occurrence she became unconscious. We do not think that in these
circumstances, the statement of Mangi (PW-4) should not be
disbelieved and disregarded on the ground that she was not an eye
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 17 of 28 witness to the actual occurrence and had wrongly identified the four
appellants as perpetrators of the crime.
18. PW-9‟s statement that Mangi PW-4 had made a complaint
against deceased Dinesh and got him arrested for a period of months to
protect Dinesh has to be taken with a pinch of salt. The deceased
Dinesh was apparently involved in other criminal cases and had been
detained several times in the past. Mangi (PW-4) it appears had also
made a complaint leading to the arrest and detention of the deceased
Dinesh for a considerable period but now PW-4 has deposed before
court implicating and attributing the injuries suffered by the deceased
on the Appellants. PW-9 Shushila in her testimony, therefore, had tried
to justify the detention of Dinesh on the complaint filed by Mangi PW-
4. However, mere lodging of the complaint by Mangi PW-4 against the
deceased Dinesh cannot be a ground to disbelieve and disregard
statement of Mangi (PW-4). PW-9 is the wife of the deceased who has
clearly implicated and stated that the appellants herein were the author
of the crime and had committed the said offence. She has also stated
and mentioned the motive and reason behind the commission of the
said crime. As per PW-9, Manoj PW-10, brother of deceased Dinesh
had got married to the sister of appellant-Pawan and this was being
objected to and was not acceptable to the family of the girl. The
contention of the appellant that Sushila (PW-9) wanted to and has
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 18 of 28 falsely implicated the appellants instead of Mangi (PW-4) has to be
rejected. Shushila (PW-9) is the wife of the deceased and she had no
reason or cause to falsely implicate the appellants and protect/shield
Mangi (PW-4). Here it is pertinent to note that the appellant Ram
kishan and Sushila (PW-9) are related. Sushila and wife of appellant
Ram kishan are first cousins. This is clear from the cross-examination
of Mangi (PW-4) wherein it was suggested and she had accepted as
correct that the deceased Dinesh and the appellant Ram kishan were
married in the same village i.e. village Tigot, Palwal, Haryana and
their wives are sisters (cousins). Appellants Pawan, Rajesh and Kartar
are also residents of the same village and they are related to each other.
Appellant Pawan, in other words, is the nephew of Sushila (PW-9).
Except for the marriage of Manoj (PW-10) with the sister of appellant
Pawan there appears to be no other dispute between the appellants and
PW-9 Shushila. No such suggestion with regard to existence of any
other dispute has been given to Shushila (PW-9) and Mangi (PW-4) in
their cross-examination.
19. In order to establish motive the prosecution produced Manoj,
who appeared as PW-10. PW-10 has deposed that he had married to
Veermati, the sister of the appellant Pawan. He has stated that family
members of Pawan were not agreeable and did not accept the said
marriage. He has further deposed that marriage had taken place 10-11
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 19 of 28 months prior to the occurrence. Family members of appellant Pawan
were threatening him through their relatives. Manoj (PW-10) was
cross-examined, but in his cross-examination also, no suggestion has
been given to him to show or suggest that there was some other dispute
between deceased Dinesh, Sushila (PW-9) and the family member of
appellant Pawan or the appellants.
20. The contention raised by the appellants that Shushila (PW-9)
was not medically examined in spite of the injuries suffered by her in
left palm is without merit. PW-9 has stated that she became
unconscious on seeing the ghastly act. PW-9 has not claimed that she
had gone to the hospital and it is PW-4 who states that she had
immediately gone to the hospital after the occurrence. Although PW-9
testified that she had received injuries on her palm but these do not
appear to have been serious in nature. In fact, the assailants appellants
were related PW-9 and there was good reason not to cause serious
injuries to PW-9 Shushila.
21. The Counsels for the Appellants have also contended that
Constable Suraj Bhan was not examined by the prosecution. No doubt,
Constable Suraj Bhan, who had taken Dinesh to the hospital, has not
been examined, but this does not mean that we should ignore testimony
of the eye witnesses PW-4 Mangi and PW-9 Sushila who as discussed
above are worthy of credence. Constable Suraj Bhan was not an eye
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 20 of 28 witness to the actual occurrence. Further, the fact that name of Mangi
(PW-4) is not mentioned in the MLC of Dinesh Ex PW-17/A does not
prove that Mangi was not present at the spot. Her presence at the spot
was natural and normal as she was residing just in front of the house of
deceased Dinesh both of which were in very close proximity to the
place of occurrence. The distance between the house of Mangi (PW-4)
and the place of occurrence is hardly 60 meters. As noticed above,
Dinesh‟s house was situated at a distance of about 21 meters from the
house of Mangi (PW-4). Further, the presence of Sushila (PW-9), wife
of Dinesh in her house is natural and should be accepted as the
occurrence in question had taken place at about 9 p.m. in the early
night of 25th June, 2007.
22. Now we shall deal with contention regarding the difference in
two site plans. We have examined the two site plans Ex.PW 20/A and
Ex.PW5/A. Ex.PW20/A is an unscaled and rough site plan, which was
prepared by the Investigating Officer SI Nirbhaya Kumar (PW-20).
The said site plan indicates the location of the house of Mangi (PW-4),
the location of the place where the deceased Dinesh was stabbed and
attacked as also the place from where he was dragged outside in the
street. The scaled site plan Ex.PW5/A is more detailed/elaborate and
shows that there was a park between the residence of Mangi (PW-4)
and the deceased Dinesh. The total length of the park has been shown
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 21 of 28 as 2155 cms or about 21 meters. Thereafter, there is a small street and
then there is the house of the deceased Dinesh. We do not think that
the distance between the two houses is long enough or such that it was
not possible for PW-4 Mangi to come and see the occurrence when hue
and cries were raised. The place where the actual stabbing had taken
place is also near the residence of deceased Dinesh. It was possible for
PW-4 to come out from her residence and then have a clear look at the
occurrence, in which the deceased Dinesh was stabbed and hit by
stones by the four appellants. We do not think that the two site plans
as such show and negate the prosecution version or create doubts that
Mangi (PW-4) and Sushila (PW-9) were not the eye witnesses to the
said occurrence.
23. The contention of the appellants that Mangi (PW-4) and Sushila
(PW-9) could not have been properly identified the assailants as there
was no electricity in the said area, cannot be a ground to disbelieve the
statement and identification of the appellants by the said witnesses. It
is clear from the statement of PW-4 Mangi and PW-9 Sushila that they
knew the assailants from before. The name of the assailants is clearly
mentioned in the statement (Ex.PW4/A) of PW-4, which was recorded
nearly after three hours of the occurrence. The four appellants were
arrested immediately thereafter. It is also contended that other public
witnesses from the locality have not deposed about alleged incident. In
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 22 of 28 this regard it is sufficient to state that it not the quantity but quality of
evidence which is required to be produced by the prosecution. A sole
eye witness who is worthy of credence is sufficient for convicting an
accused guilty of a crime.
24. The next contention on behalf of the appellants that Mangi
(PW-4) could also be the executor of the crime is palpably incorrect
and merits rejection. It is difficult to visualize and accept that Mangi
(PW-4), a woman had inflicted grievous injuries as projected by the
post mortem report Ex. PW-12/A on the deceased and thereafter had
the courage and did a daring act to go to the hospital to ascertain and
inquire about the well being of Dinesh. It is implausible that PW-4
Mange after assaulting the deceased in such a brutal manner would
have run the risk of staying around the deceased and actually pay him a
visit at the hospital or make the complaint Ex.PW4/A.
25. The contention that no crime team was called to the spot also
does not help the appellants in as much as the lapses in conducting the
investigation must shake the core prosecution case. We also note that
initially the FIR in question was under Section 307 IPC and only after
death of Dinesh Section 302 IPC was invoked. The testimony of eye
witnesses PW-4 Mangi and PW-9 Shushila is not dented either by non-
summoning of a crime team or non presence of a crime team report.
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 23 of 28 Both the eye witnesses have stated in clear terms that the appellants
were the perpetrators of the crime.
26. As regards disclosure statements not having been placed on
record during the investigation, it is noted that disclosure statement Ex
PW-11/E of the appellant Pawan is on record but disclosure statements
of other appellants namely Ram kishan, Rajesh and Kartar were not
traceable in trial court even when the evidence was being recorded.
The result is that the prosecution cannot rely upon the said disclosures.
We do not think any advantage because of this factual position can
accrue to the appellants. It has not come on record whether any
recovery of a physical object was made pursuant to the purported
disclosures statements. On the basis of the disclosure statement (Ex.
PW-11/E) of appellant Pawan, a pant was recovered from a bucket in
Boutique International but as per the FSL report no blood stains were
found. Recovery of pant is, therefore, not an incriminating fact. Except
for the broken knife Ex P-1 and stones Ex P-2 which were seized from
the spot no other weapons like swords, churri were found. From the
nature of injuries found on the body of the deceased, it is clear that a
sharp edged weapon was used. It is pertinent to note that opinion of the
Dr. Sukhdeep Singh on the weapon of offence (Ex PW-12/B) clearly
records that injuries nos. 1-8, 10-12,16, 18, 20-25 could have been
caused by knife with a broken handle Ex P-1. The ocular testimonies
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 24 of 28 of PW-4 Mangi and PW-9 Shushila on the alleged incident are clear
and categorical. Failure of the police to recover any other weapon does
not fatally destroy or dent the prosecution case.
27. On the issue of arrest of the appellants, we have examined the
arrest memos Ex.PW11/C1 to Ex.PW11/C4. It is the submission of the
counsel for the appellants that the appellants were arrested between
5.00 p.m. to 5.25 p.m. on 26th June, 2007. However, as per the
prosecution version the appellants were arrested between 5.00 a.m. to
5. 25 a.m. on 26th June, 2007. At the very outset, we may state that we
have examined arrest memos Ex.PW11/C1 to Ex.PW11/C4 and it is
not possible to say with clarity whether the time of arrest on the arrest
memos has been written in a.m. or p.m. The trial court record,
however, shows that the four appellants were produced before the
Metropolitan Magistrate on 26th June, 2007 and were remanded to
judicial custody on the same day. Therefore, it cannot be doubted that
the appellants were produced before the court of concerned
Metropolitan Magistrate and not before a duty Magistrate. Production
before the concerned Metropolitan Magistrate has to be before 4.30
p.m. on 26th June, 2007. Moreover, the Investigating Officer SI
Nirbhay Kumar (PW-20) has deposed that he had arrested the
appellants near Badarpur Border between 12 midnight and 1 a.m. in
the night. This statement was made by PW-20 in the cross-
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 25 of 28 examination by the advocate for the appellant Ram kishan. However,
PW-20 was not cross-examined or questioned specifically with regard
to the arrest memos Ex.PW11/C1 to Ex.PW11/C4 and it was not put to
him that the appellants were arrested on 26th June, 2007 between 5.00
p.m. to 5.25 p.m. and not at night or in the morning. The factum of
arrest of the four appellants in the intervening night between 25th and
26th June, 2007 is also deposed to by Constable Pratham Singh (PW-
11) and Constable Tej Ram (PW-15). Both of them were also not
confronted or questioned on the arrest memos Ex.PW11/C1 to
Ex.PW11/C4 and it was not suggested that the appellants were arrested
in the evening of 26th June, 2007 between 5.00 p.m. to 5.25 p.m. and
not in the night intervening between 25th and 26th June, 2007, as stated
by them. It may be relevant to state here that that the four appellants in
their statements under Section 313 Cr.P.C. have stated that they were
arrested in the morning of 26th June, 2007. They have not stated that
they were arrested in the evening of 26th June, 2007. It is, thus, clear
that the appellants were arrested soon after the occurrence and in fact
within few hours, after the FIR was registered at about 1 a.m. on 26th
June, 2007. As noticed above, the names of the appellants were clearly
and specifically mentioned in the present FIR, Ex PW-2/A.
28. Appellant Ram kishan produced DW-1 Anang Pal, DW-2 Anil
and DW-3 Vijay Bakshi in his defence to canvass the point that he was
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 26 of 28 arrested by the police not from Badarpur but from his place of work.
Similarly appellants Pawan and Rajesh examined DW-4 Vijender to
show that they were lifted by the police officials from Boutique
International. The three witnesses DW-1, DW-2 and DW-3 have
accepted that inspite of arrest of appellant Ram Kishan, they did not
make any statement/write to the police officials or appropriate
authority that Ram Kishan was with them at the purported time when
the occurrence had taken place. DW-2 accepted that he had deposed at
the instance of the family members of appellant Ram Kishan. DW2
also accepted that there was strained relationship between the deceased
Dinesh and the appellant Ram Kishan on a girl. DW3 has similarly
deposed that he had come to the court at the instance of the family
members of the appellant Ram Kishan and there was dispute between
deceased Dinesh and the appellant Ram Kishan on a girl. DW4‟s
statement is not reliable. DW-4 has accepted that the police officer did
not make any inquiry in his presence. He could not even till the date
when he had started working in the Boutique Company. He did not
make any complaint to appropriate authority or court regarding
innocence or the arrest of the appellants Pawan and Rajesh. He had
come to depose at the instance of the family members of the said
appellants. DW5 Rohtas has deposed that the appellant Kartar‟s
brother was sick and they i.e. appellant and DW-5 had taken him to a
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 27 of 28 Doctor at 6 p.m. and came back at 7 p.m. Thereafter, he went to the
appellant‟s house and looked after his ailing brother till 1.30 AM. In
between 1 AM to 1.30 AM police officers came and forcibly took
appellant Kartar with them. In the cross-examination, he accepted that
he was called by the appellant Kartar from his village to depose in his
favour and that he had not made any complaint to Senior Officers,
authority or the court. We have no doubt that the statement of DW1 to
DW5 are unreliable and not worthy of credence. Their testimonies do
not inspire confidence.
29. In view of the aforesaid position, we do not find any merit in the
present appeals. Conviction and sentence of the appellants are upheld
and maintained. The appeals are dismissed.
(SANJIV KHANNA) JUDGE
(SIDDHARTH MRIDUL) JUDGE APRIL 02, 2013 NA/VKR
Crl.A.Nos.538/2011, 539/2011, 561/2011 & 404/2013 Page 28 of 28
