Sanjay @ Panji vs State
2013 Latest Caselaw 1973 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       CRIMINAL APPEAL No.857/2009

                                            Reserved on : 23rd January, 2013
%                                          Date of Decision: 01st May, 2013


SANJAY @ PANJI                                       ....Appellant
                        Through Mr. S.P. Kaushal and Mr. Varun Rai
                        Sharma, Advocates.

                         Versus

STATE                                                           ...Respondent

                        Through            Ms. Richa Kapoor, APP for the State.

+                       CRIMINAL APPEAL No. 858/2009


KESU @ PAWAN                                          ....Appellant
                        Through Mr. S.P. Kaushal and Mr. Varun Rai
                        Sharma, Advocates.

                         Versus

STATE                                                           ...Respondent
                        Through            Ms. Richa Kapoor, APP for the State.


+                       CRIMINAL APPEAL No. 860/2009


GUDDI                                                ....Appellant
                        Through Mr. S.P. Kaushal and Mr. Varun Rai
                        Sharma, Advocates.

                         Versus

STATE                                                           ...Respondent
                        Through            Ms. Richa Kapoor, APP for the State.



 CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

SANJIV KHANNA, J.:

1. These three appeals by Pawan @ Kesu, Sanjay @ Panji and

Guddi Devi impugn common judgment dated 17th September, 2009

and order on sentence dated 24th September, 2009 arising out of FIR

No.857/2006, Police Station Najafgarh. The three appellants have

been convicted under Section 302 read with Section 34 of the Indian

Penal Code, 1860 (IPC) for murder of Suman on 5th September, 2006

at about 5.00 p.m. and under Section 323 read with Section 34 IPC for

causing simple injuries in furtherance of common intention to Sunita,

Dilbagh and Zile Singh between 3.30 pm. to 5.00 p.m., on the same

day. The appellants have been sentenced to life imprisonment and fine

of Rs.5,000/- each for the offence under Section 302 read with Section

34 IPC and Rigorous Imprisonment of one year each for the offence

punishable under Section 323 read with Section 34 IPC. In default of

payment of fine of Rs.5,000/-, they have to undergo Simple

Imprisonment for six months.

2. Guddi Devi is the mother of Pawan and Sanjay is cousin brother

of Pawan (son of Guddi‟s Jeth).

3. As per the prosecution version, there were two incidents which

occurred on 5th September, 2005 at the shop of Sunita, located at Gali

Masjidwali, New Roshanpura, Najafgarh. In the first occurrence, at

about 3.30 p.m., the three appellants had caused injuries to Sunita and

her husband Dilbagh, who were then taken to Rao Tula Ram Memorial

Hospital, Jafarpur, Delhi. The second occurrence happened at about

5.00 p.m. Suman suffered injuries. She was declared brought dead by

the same hospital. Zila Singh also sustained injuries in the second

occurence.

4. As far as the first occurrence is concerned, appellant Pawan in

his statement under Section 313, Code of Criminal Procedure, 1973

(Cr.P.C.) has accepted that he was present along with appellant Sanjay,

but has stated that it was injured Dilbagh who had first beaten him and

he was saved by Sanjay. Sanjay had snatched "danda" from the hands

of Dilbagh and had given blow to Dilbagh. This averment was not a

one off remark but was repeated several times, in response to various

questions. Pawan has claimed that the appellant Guddi was not present

at that time as she had gone to market. Pawan has further stated that

he was taken to the police station at about 3.00-3.15 p.m., after the first

occurrence, and he did not know about the second occurrence. He has

given a detailed response regarding motive and reason, which we shall

refer to subsequently. Appellant Sanjay in his statement, under Section

313 Cr.P.C, has stated that quarrel had taken place on 5 th September,

2006, when both sides gave beatings to each other. Dilbagh and Sunita

had caused injuries to them. At that time, Guddi was not present there.

He has denied as incorrect his involvement in the second occurrence.

Guddi in her Section 313 Cr.P.C. statement has denied her

involvement whatsoever in the two incidents.

5. We have adopted this unusual manner of first referring to the

statements of the appellants, under Section 313 Cr.P.C., to curtail

prolixity and to focus on the core disputed facts. About the first

occurrence at about 3.30 P.M. there is controversy and doubt viz.

involvement of Guddi. Appellant Pawan and Sanjay accept their

presence and admit that a quarrel had taken place with Sunita and

Dilbagh, on 5th September, 2006 at 3.30 P.M. The second occurrence

has been vehemently questioned and contested by the appellants on

various grounds.

The First Occurrence

6. With regard to the first occurrence, appellants Pawan and Sanjay

have submitted that Dilbagh and Sunita were the culprits and Sanjay

had caused injuries in retaliation, after they were attacked.

7. On the first occurrence, we have statements of Dilbagh Singh

and Sunita, who appeared as PW-2 and PW-3, respectively. PW-2 has

stated that he came to the shop, at about 3.00 p.m., from the Masjid

where he was working after being informed that some persons had

gathered and an altercation was going on at the shop. When he

reached, he found his wife Sunita lying on the ground. He named the

three appellants and stated that they had encircled him. He has

claimed that he was hit by Pawan and Sanjay, and Guddi slapped him.

His daughter Suman reached the spot and saw him bleeding. She made

a call to police at number 100. Police came there and removed PW-2

and PW-3 to the hospital at Jafarpur. After about one or one and a half

hour, dead body of Suman was brought to the hospital. Police

recorded statement of his father-in-law Zile Singh (PW-1) and others.

In the cross-examination he has deposed that after the first altercation

the appellants ran away from the spot he and his wife reached the

hospital at 4.00 p.m. He has further stated that Zile Singh was not

present at the time of the first occurrence and had reached the spot later

on. In the cross-examination, on behalf of the appellant Pawan, PW-2

has stated that in his presence no money was snatched and brother of

Sanjay was taken in the PCR Van, but was dropped at the police

station. Brother of Sanjay was not taken to the hospital. In the

subsequent portion of the cross-examination, the name of the brother

of Sanjay was given as Kulber. This is an important clarification as it

was wrongly suggested during the course of arguments that reference

to brother of Sanjay would be Pawan. Pawan himself was facing

prosecution and there was no need for PW-2 to refer to Pawan as

brother of Sanjay and not by name.

8. Sunita (PW-3) has deposed on the similar lines and averred that

Guddi, Pawan and Sanjay had come to the shop. Pawan and Sanjay

were having Lathis in their hand. Guddi caught hold of her hair. No

one was present in the shop at that time, but somebody had called her

husband. The three appellants gave beatings to her and her husband.

Her daughter Suman had called police at 100 number. PW-3 and her

husband were taken to the hospital in a PCR Van, but the appellants

fled from the spot before arrival of the PCR. In the cross-examination

she was confronted with her statement (Ex.PW3/D1) under Section

161 Cr.P.C. where it was not recorded that Guddi was present with

Pawan and Sanjay. Thus, PW-3 in her Section 161 statement had not

named or implicated Guddi. Neither had she stated that Guddi was

present during the first occurrence, at about 3.00-3.30 p.m.

9. Presence of Guddi at the time of first occurrence is not

mentioned in the complaint (Ex.PW1/A) made by Zile Singh, which

formed the basis of "rukka". Zile Singh in Ex.PW1/A had claimed that

he was present at the spot when the first occurrence had taken place in

which his daughter Sunita (PW-3) and son-in-law Dilbagh (PW-2)

were given beatings by the duo i.e. the appellants Pawan and Sanjay.

It would be sufficient to state here that presence of Zile Singh, who had

appeared as PW-1, at the first occurrence has to be disbelieved in view

of his statement in the Court wherein he did not aver that he was

present at the shop during the first occurrence. However, Ex.PW1/A

was recorded at about 9.50 p.m. on 5th September, 2006. By that time

Zile Singh had sufficient opportunity and occasion to interact with

PW-2 and PW-3 in the hospital and, in his statement, he has mentioned

about the presence of only Pawan and Sanjay at the time of the first

occurrence at about 3.00-3.30 p.m and had not implicated and stated

that Guddi was present. This position is corroborated from the

recordings made in the PCR Form (Ex.PW13/A) on 5th September,

2006 at 15.41 hours. It is recorded therein that Suman had made a call

from telephone number 6513822 to the effect that boys from

neighbourhood had stolen money from her shop and injured her father.

She knew those boys. There was no reference to the presence of a

woman in the said statement. In these circumstances, benefit of doubt

has to be given to Guddi Devi, with regards to her presence at the time

of first occurrence.

10. Constable Kashi Nath (PW-13) on 5th September, 2006 was

posted in police control room and at about 3.41 p.m. he had received

information given by Suman from telephone number 65138522 that

neighbourhood boys had looted money from her shop and her father

was beaten up. She knew the boys from before. He proved the police

control room form 52(X) as Ex.PW13/A.

11. There is ample evidence regarding presence of Pawan and

Sanjay and we are inclined to accept the statement of PW-2 and PW-3

to this extent. It transpires that the two appellants had come to the

shop of Sunita (PW-2) and this fact has been established beyond doubt.

Appellant Pawan in his statement, under Section 313 Cr.P.C, has

accepted that they went to the shop of Sunita, at the time of the first

occurrence. The motive behind this incidence shall be examined later.

12. We notice that during the first incident injuries suffered by

Dilbagh (PW-2) and Sunita (PW-3), as recorded in the MLCs

Ex.PW10/A and Ex.PW-10/ B, were simple in nature. There were two

bruises on PW-2. One each on the two legs and lacerated wound over

the scalp of 1×3 cm. In the case of PW-2 generalized tenderness was

seen. There was no history of convulsion, vomiting and ENT (Ear,

nose and throat) bleeding, in either case.

The motive

13. Before we examine the second occurrence, it will be appropriate

to consider and know the motive or the cause behind the first

occurrence. This is necessary as it would throw light on the second

occurrence.

14. PW-3 has deposed that on 4th September, 2006, Suman was

cleaning utensils when Pawan and Sanjay came to their house and

threw pebbles on her and indulged in eve teasing. At that time PW-3

was present at the shop. Thereafter, PW-3 went and spoke to the

mother of Pawan i.e. Guddi and had asked her to make the two boys,

i.e. Pawan and Sanjay, understand that they should behave. Appellant

Guddi had purportedly used abusive language. On 5th September, 2006,

PW-3 had spoken to the villagers about the said incident. The villagers

asked her not to escalate the matter as Suman was a girl. They assured

that they would take care. Dilbagh (PW-2) has deposed that PW-3 had

informed him about the occurrence of 4th September, 2006 and,

thereafter, PW-2 had spoken to Guddi at her residence. PW-3 in her

cross-examination was confronted with her statement (Ex.PW3/D1)

wherein she had mentioned that she had abused Guddi. She deposed

that Guddi had told her that she would scold her sons.

15. Appellant Pawan in his statement, under Section 313 Cr.P.C.,

has stated that deceased Suman used to like him and wanted to elope

and get married to him. They used to study in the same school and

earlier he used to visit Suman‟s house, but later objections were raised.

His statement under Section 313 Cr.P.C. to this effect is rather

expatiated, but it would be suffice to note that Pawan had stated that

one day before the occurrence his mother i.e. Guddi Devi had

confronted him and stated that she would take him to Sunita and

Dilbagh. She had even cursed him. Next day he along with Sunny, his

uncle‟s son, had gone to the shop of PW-3. PW-3 was having a „saria"

in her hand and she started abusing him. PW-2, who was playing

cards, caught hold of his neck and was carrying a danda. At that time,

Sunny, uncle‟s son, gave a danda blow to Dilbagh (PW-2) but no hurt

was caused to Sunita. Police came and took Dilbagh to the hospital.

16. There is no evidence or material that Suman liked Pawan except

for the averment made by the appellant Pawan in his statement under

Section 313 Cr.P.C. Pawan, in his statement, had mentioned about the

hand written notes or letters, but none were placed on record. On the

contrary, as per ExPW13/A i.e. the Police Control Room Form

information regarding the first occurrence was given by Suman. This

is specifically recorded in the said form. The appellants had produced

defence witnesses but they have not averred or stated a single word

about any relationship between Pawan and Suman.

17. Deceased Sunita was a girl aged about 16 years, as per her MLC

(Ex. PW-10/C) and the post mortem report (Ex.PW7/A). She belonged

to a conservative family. Without discounting the fact that girls from

conservative families can fall in love, we do not think that there is any

material to suggest that Suman liked appellant Pawan. Factum that

Suman had made a telephone call to the police soon after the

occurrence, in which her father and mother suffered injuries, is a clear

indicator to the contrary. In fact, Suman stated to the effect that Pawan

and Sanjay had robbed and stolen money from the shop. In these

circumstances, it is difficult to give credence to the appellant Pawan‟s

averments regarding his over friendly relations with Suman.

18. The motive proved and established by the prosecution has,

however, come to the rescue and endeared the appellant Guddi. She

has been implicated because she is the mother of Pawan.

The Second Occurrence

19. This brings us to the second incident in which Suman had lost

her life. At the time of the second occurrence, PW-2 and PW-3 were

in the hospital and were not present at the shop i.e. the place of

occurrence. Zile Singh (PW-1) has claimed that he was present at the

spot. He has averred that at about 5 p.m. he was present at the shop

when the three appellants came there and dragged Suman out from the

shop. Suman managed to free herself and ran about ten steps towards

her house. Appellant Guddi apprehended Suman and threw her on the

ground and the two boys thrashed Suman with lathi with which they

were armed. PW1 tried to intervene, but was beaten up. He fell down

on the ground and became unconscious. He was removed to the

hospital in a PCR Van and his statement (Ex.PW1/A) was recorded.

Suman was taken to the hospital, but he did not know who had taken

her. In the cross-examination, however, he has stated that in the PCR

Van, his wife, his son Rahees and Suman were there. This discrepancy

in the statement of PW-1, who was about 70 years of age at that time,

does not impel us to disbelieve PW1‟s substantive statement. PW-1,

when cross-examined, has accepted as correct that he had a weak

memory and could not remember details like house numbers. We have

examined PW1‟s statement with great care keeping in mind his age,

the fact that he is deceased‟s relative, the motive and the cause of

occurrence, in order to exclude the possibility of a false statement

and/or wrong/innocent person being implicated.

20. Before us it was vociferously argued that PW-1 was not present

at the spot at the time of the second occurrence. It was highlighted that

PW-1 is the maternal grandfather of Suman i.e. father of Sunita and,

therefore, his presence at the shop should be doubted and disbelieved.

We are not inclined to accept the said contention. Presence of PW-1 at

the shop at the time of the second occurrence has been explained. PW-

1 has stated that on 5th September, 2006 he went to collect his pension

and he was apprised of the first occurrence later. Thereafter, he came

to the shop where Suman was present. He has deposed that Suman

was moved to the hospital in a PCR Van and he had become

unconscious for about 2-3 minutes. He has deposed that Sunita and

Dilbagh had already been taken to the hospital before he reached the

spot and at the time of occurrence he was the only person present and

no one else was present. As noted above, "rukka" was recorded on the

basis of his statement (Ex.PW1/A).

21. Counsel for the appellants has tried to highlight minor

discrepancies in the statement of PW-1 to the effect that he had stated

that the three appellants simultaneously came from the roof through

stair case and that his statement (Ex.PW-1/A) was recorded at 5.00

p.m.-5.30 p.m. These minor discrepancies, in the statement of an aged

rustic villager 70 years old, do not affect the credibility and

truthfulness of his statement as to the actual occurrence.

22. Dr. A.S. Yadav (PW-21) had examined Zile Singh (PW-1) on 5th

September, 2009 at 8.00 p.m. vide MLC Ex.PW21/A. No swelling or

deformity was seen, but there was tenderness in the right palm and

right calf muscle. PW-21 advised medicines and injections. The crime

team report (Ex.PW5/A) records that they had inspected the spot

between 7.45 p.m. to 9.00 p.m. on 5 th September, 2006. The name of

the complainant was mentioned therein is Zile Singh (PW-1).

23. At this stage, it would be important and relevant to note the

complete change in the defence of the appellants in the present appeals

viz. the defence taken by the appellants at the Trial Court. In the

appellate proceedings it is submitted that PW-1 was not present at the

spot and had not seen the occurrence, whereas before the Trial Court

the appellants had accepted the position that PW-1 was present at the

time of the second occurrence. It was suggested and PW-1 was cross-

examined to the effect that the appellant Sanjay had come to the spot to

enquire about his brother and PW-1 chased him and tried to hit him

with danda. Suman tried to intervene and save Sanjay. In this process,

PW-1‟s danda blow meant for Sanjay had hit Suman on her head. This

suggestion was not only given to PW-1 in the cross-examination on

behalf of Pawan, but was reiterated by Pawan in his statement under

Section 313 Cr.P.C. He has averred that Sanjay had told him that

someone tried to intervene and save him and for this reason danda

blow given by Zile Singh (PW-1) fell on Suman, as a result of which

she fell on the ground. Zile Singh had caused the said injuries and had

falsely implicated Sanjay. Interestingly, Sanjay in his Section 313

Cr.P.C statement is quiet on the said aspect.

24. Appellants Pawan and Guddi Devi also led defence evidence.

Parsu Ram (DW-1), Umrao Singh (DW-2), Rohtash (DW-3) and

Chanda (DW-4) villagers residing in Roshanpura, Najafgarh have

deposed that Zile Singh (PW-1) had given "lath" blow to Sanjay which

fell on Suman. We have disbelieved the statements of DW-1 to DW-4

because they have tried to help and save the appellants for reasons

stated below. We have presently referred to the said statements and

depositions to record and conclude that the appellants never doubted or

questioned that PW-1 was not present at the crime spot at the time of

the second occurrence. The case set out by the appellants was that

only Sanjay had gone to the spot and when Zile Singh had tried to hit

Sanjay with a "danda", Suman came to save and intervene, but the

blow landed on Suman. Suman ultimately died because of the said

blow. The plea now taken by the appellants that Zile Singh (PW1) was

not present is an after-thought. Presence of PW1 at the spot and that he

was an eye-witness should be accepted. We reject the contention of the

appellants that PW-1 was not present at the time of the second

occurrence.

25. Regarding the contention that Zile Singh had tried to hit Sanjay

and the blow had fallen on Suman, we record that the appellants have

not once raised the said contention before us and even otherwise we do

not think that the said contention merits acceptance. Parsu Ram (DW-

1) has stated that Zile Singh hit Suman by lath (danda) and thereafter

ran away. He and others picked up Suman and put her on a cot. Police

was informed. DW-1 has stated that Zile Singh came to the "Chowk"

i.e. near the shop at about 5.00 p.m. If we are to believe the appellants‟

version we still would fail to comprehend why and for what reason the

appellant Sanjay would come alone, after the earlier occurrence. DW-1

has deposed that he never met and made representation to police that

Sanjay was wrongly arrested. In the cross-examination he has deposed

that he did not know whether Pawan was arrested and charged with the

murder in this case. He has claimed that he did not know that Pawan

was in jail and he had not met Pawan after the said date. He had come

to depose as a defence witness on behalf of Pawan on the request of his

sister.

26. Umrao Singh (DW-2) has stated that he was a neighbour of

Dilbagh and had seen Zile Singh (PW-1) trying to hit Sanjay and in

that process the lath (danda) hit Suman, who fell down. Thereafter

police came, but he was busy in his own work. He has deposed that he

had been called by Pawan‟s sister to make the said statement in the

Court. For substantially the same reasons as given while dealing with

statement of DW1, we do not accept DW 2 statement that the blow was

given by Zile Singh (PW1).

27. Rohtas (DW-3), interestingly, had also appeared as a

prosecution witness PW-9. As defence witness he has stated that he

had seen the two occurrences at 3.00 p.m. or 3.15 p.m. and then at 5.15

p.m. At 3.00 p.m. or 3.15 p.m. altercation had taken place between

Dilbagh (PW-2) and appellant Pawan and at that time police came and

took Pawan and Dilbagh (PW-2) with them. At the time of the second

occurrence at 5.15 p.m., Zile Singh (PW-1) was sitting outside the

shop. PW-1 chased Sanjay with lath (danda) in his hand and was

trying to hurt him. Deceased Suman tried to intervene and the blow,

which was meant for Sanjay, fell on Suman who fell down. She was

lifted by a neighbour, Sayyad and his wife. Police reached the spot at

about 6.00 or 6.30 p.m. In the cross-examination he has deposed that

police did not carry out investigation in his presence and nobody had

told him about the case. He was not aware whether Pawan was

charged with murder, though he knew that the appellant Guddi was

facing murder trial. As PW-9, Rohtas had deposed that on 5th

September, 2006 at about 2.30 p.m. or 3.00 p.m. altercation had taken

place between Sunita (PW-3) and appellant Pawan, but he did not

know the reason. Thereafter, he had gone to the fields. At that time,

Suman was not present at the shop. He has further stated that he had

no knowledge whether Dilbagh (PW-2), Sunita (PW-3) and Sanjay

were taken from the spot. He did not know whether a PCR van had

reached the spot and removed the injured to the hospital. He has

further deposed that he had not apprised the police that people were not

willing to come forward and give statements as most villagers

belonged to the Mula Jaat community.

28. Chanda (DW-4) has stated that he was residing in the village for

last 40-45 years and his house is located at a distance of 250 meters

from the house of Dilbagh (PW-2). Quarrel had taken place on two

occasions. One at 3.00 p.m. and another at 5.00 p.m. He had deposed

that Pawan and his mother Guddi were present and they quarreled with

Zile Singh (PW-1). Appellants Guddi and Pawan were taken by the

police at 3.00 p.m. The second quarrel had taken place at 5 p.m.

between Zile Singh (PW-1), his daughter Sunita (PW-3) and son-in-

law. He had deposed that in the second quarrel at 5.00 p.m. Sanjay

was present and granddaughter of Zile Singh was also present. In the

cross-examination, he has deposed that Sunita, daughter of Zile Singh

and his son-in-law Dilbagh were taken away by the police. Appellant

Guddi was also taken away by the police at 3.00 p.m. House of Guddi

was located at a distance of 100 meters from the place where they were

playing cards. DW-4 along with several others had gone to the police

station at about 7.00-8.00 p.m. and had remained there for about half

an hour or 45 minutes. He had come to depose in the Court at the

request made by Mausi of Pawan and sister of Sanjay. Contradictions

and inconsistencies in testimony of DW-4 are apparent and substantial.

Persons with reference to the first and second occurrence have been

wrongly stated.

29. At this stage, it would be relevant to refer Ex.PW4/A i.e. the

records maintained by the Police Control Room and the recordings

made by the police officers, who had reached the spot. At about 17.17

i.e. 5.17 p.m. a call was received from telephone number 65138522 i.e.

from the telephone at the shop that violence and quarrel was taking

place. Thereupon, the police reached the spot at about 5.28 p.m. and at

5.36 p.m. the following report was sent:-

"Two boys of the village ran away after hitting daughter of Dilbagh. The girl is injured. She is being taken to hospital along

with his maternal uncle (mama). About 150/200 people of the village had gathered there."

30. The said report at 5.36 p.m. makes reference to the two boys of

the village, who had hit daughter of Dilbagh (PW-2) i.e. Suman, who

was taken to the hospital. The next report states that Suman was

declared brought dead and her head had ruptured from behind. Further

report in Column 747A/1833-293 records that maternal grandfather of

the girl i.e. Zile Singh had disclosed that injury was caused by hitting

leg of the bed/cot. This incident had occurred after the quarrel a day

before, when Suman was washing utensils and a boy, named Sanjay

had thrown pebbles at her. This was informed by Suman to her

mother. Mother of Suman had gone to the house of Sanjay and had

protested. Next afternoon the boys came and had indulged in violence.

It is an accepted position and appellant Pawan has stated that Sunita

(PW3) mother of deceased Suman had on 4th Sept.,2009 protested and

spoken to Guddi mother of Pawan. Thus reference to Sanjay and his

mother in the said report Ex.Pw4/A is incorrect and in fact reference is

to the appellants Pawan and his mother Guddi.

31. The prosecution relies upon statement of Rahees Ahmad (PW-6)

mama of Suman i.e brother of Sunita. In his examination-in-chief he

has stated that at about 5.00 p.m. on 5 th September, 2006 when he

reached the shop of his sister at Masjidwali Gali, New Roshan Pura, he

saw appellants Pawan, Sanjay and Guddi Devi running away. He saw

his father Zile Singh (PW-1) and niece Suman in an injured condition.

He made a call at 100 number. A PCR Van reached there and removed

his father and niece to the hospital. He went with them. He has stated

that he had informed the name of the perpetrators to the police. He

found his sister Sunita (PW-3) and brother-in-law Dilbagh (PW-2),

admitted in the hospital. In the examination-in-chief he has not stated

that he had seen the actual occurrence. However, he was extensively

cross-examined by the counsel for the appellants, in which he

elaborated that he had seen the actual occurrence wherein violence

took place i.e. he saw the appellants Pawan, Sanjay and Guddi. Pawan

and Sanjay were having lathi in their hand. Guddi had caught hold of

Suman and Sanjay gave a lathi blow to Suman. Thereafter, Guddi

caught hold of his father and Pawan hit his father with lathi. We are

not inclined to accept the statement made by PW-6 in the cross-

examination. PW-6‟s examination-in-chief is more credible and

trustworthy. PW-6 had certainly reached the spot but immediately

after the occurrence and had made a telephone call to the police.

However, he may not have actually seen the occurrence itself. PW-6

was working as a labourer and in the cross-examination accepted that

he had reached his home at about 4.00 p.m. and thereafter left for the

police station when he came to know that his sister and brother-in-law

had sustained injuries and had been taken to the hospital. He remained

there for about 35-40 minutes and then came back to the shop. In case

PW-6 would have seen the actual occurrence, he would have been

made the complainant and his deposition in examination-in-chief

would have been more elaborated and detailed. On the other hand, his

father Zile Singh (PW-1), who was aged about 70 years, was the

complainant as he claimed that he had seen the actual occurrence. We

also note that PW-1 in his deposition in the Court had not stated that

PW-6 had seen the actual violence i.e. use of lathis. In the cross-

examination he has stated that no one was present except Suman and

him when accused persons had come. He has stated that Rahees, his

son and the PCR Van almost reached there simultaneously and the

police had reached the spot within 4-5 minutes.

32. Learned Additional Public Prosecutor has relied upon

Ex.PW1/A i.e. the statement made by Zile Singh (PW-1), which

formed basis of "rukka". It is mentioned that on the second occasion

the three appellants had come and were hurling abuses. According to

the rukka, Zile Singh (PW-1) along with his son ran behind the three

appellants to save Suman. Ex.PW1/A was recorded on 5th September,

2006 at about 9.50 p.m. i.e. after a gap of nearly 5 hours. Zile Singh

was taken to the hospital and examined at about 8.00 p.m.. MLC

(Ex.PW10/C) of the deceased Suman was recorded at 6 p.m. and

mentions that the patient was declared brought dead. There is thus a

gap of about 5 hours between the second incident and when Ex.PW1/A

was recorded. We have mentioned about the motive or the cause

which led to the said occurrence on 5 th September, 2006 when son of

Guddi and his nephew had eve teased and troubled Suman. Sunita

(PW-3) had gone to the house of Guddi and had protested against the

conduct of Pawan and Sanjay.

33. Keeping in view the aforesaid facts, we feel that there is no

credible evidence to show that Guddi was present at the time of the

second occurrence or had indulged in any violence. In this connection,

we also rely upon the PCR Form (Ex.PW4/A) details which mentions

that two boys of the village had caused injuries to Suman. This was

the first statement forwarded by the PCR officials, who had visited the

spot, to the control room. We also note that Guddi, as per the police

version, was arrested on 6th September, 2006 at 6.30 a.m. vide arrest

memo Ex.PW16/A. Appellant Guddi has stated that she was arrested

from her house on 5th September, 2006 in the evening. She has

accepted that on 4th September, 2006, Sunita (PW-3) had come to her

house and told her that her son Pawan had given a letter to PW-3‟s

daughter Suman. Sunita had allegedly shouted to make Pawan

understand that he should maintain distance from Suman, otherwise

she would kill him. Appellant Guddi, at that time, had suggested she

would talk to her son and PW-3 should also talk to her daughter. On

this suggestion, PW-2 had abused her.

34. This brings us to the question of presence of the appellants

Sanjay and Pawan and whether they had caused injuries to Suman at

5.00 p.m. on the second occasion. As noted above, Police Control

Room Form (Ex.PW4/A) supports the version that two boys had

caused injuries to Suman. Zile Singh (PW-1) has averred that Pawan

and Sanjay had caused injuries to Suman. Pawan and Sanjay accept

their presence at the spot on the first occasion. Pawan claims that he

was arrested and detained in the police station on the first occasion and

thus could not have been miraculously present later on. There is,

however, no material or evidence to support the said contention. In

response to the question that his mother was arrested on 6th September,

2006 at 6.00 a.m., Pawan has stated that he came to know about the

arrest of his mother while he was in Tihar Jail. As per the prosecution

case and arrest memo Ex.PW22/B, Pawan was arrested on 6 th

September. 2006 at 4.30 p.m. Pawan claims that he was taken to the

hospital after the first occurrence on 5th September, 2006, but again

there is not material or evidence to support this proposition. Pawan

further claims that Sanjay had gone to the spot or the place of

occurrence at 5.00 p.m. Presence of Sanjay at the spot is supported by

the statement of Zile Singh (PW-1). Sanjay was arrested vide arrest

memo Ex.PW22/A on 6th September, 2006 at 4.00 p.m. from the same

location from where appellant Pawan was arrested. As stated after the

first occurrence, violence and police complainant, it is difficult to

accept that the appellant Sanjay would have gone to the shop once

again after 2 hours all alone.

35. Even if we disregard the recovery of the weapons of the offence,

we do not think that any benefit could accrue to the appellants Pawan

and Sanjay. It was pointed out to us that there is discrepancy with

regard to place of recovery, in the statement of PW-6 and the police

witnesses, and there is discrepancy in the description as FSL report (

Ex. P4 and P2) has mentioned one of the Lathi as wooden stick. FSL

report in any case does not show presence of blood on the two

bamboos/sticks.

36. The PCR Form (Ex.PW4/A) was recorded by Constable Mahesh

(PW-4), who was on duty in the Police Control Room, Police

Headquarters. He has stated that on 5th September, 2006 at 5.17 p.m.

he had received telephonic information about a quarrel at RZ-43,

Masjid Wali Gali, New Roshan Pura. The said information had been

received from telephone number 65138522 and he had flashed the said

information. SI Udham Singh (PW-5) was posted as Incharge, Mobile

Crime Team, which had inspected the spot at about 7.15 p.m. after

receiving information from the control room. He had proved the

Mobile Crime Team Report as Ex.PW5/A. Scene of the crime was

also photographed by Constable Prabhu Dutt. Dr. Shankar Narayan

(PW-10) had examined Dilbagh (PW-2), Sunita (PW-3) and Suman

and has proved their MLCs as Ex.PW10/A, B and C, respectively. He

had opined that the injuries suffered by PW-2 and PW-3 were simple

blunt injuries, whereas Suman was brought dead in the hospital

through PCR, Zebra 93 by ASI Hawa Singh (PW-24).

37. The site plan of the occurrence was proved by Constable

Hardeep Singh (PW-19), who had visited the spot on 9th November,

2006 and had prepared the scaled site plan marked Ex.PW19/A on 11 th

November, 2006. The photographs Ex.PW20/1 to Ex.PW20/14 were

proved by Constable Brahm Dutt (PW-20). SI Anand Prakash (PW-

22), SI Amarpal Singh (PW-25) were involved in the investigation of

the present case with Inspector Kailash Chander (PW-26), the

Investigating Officer. SI Amarpal Singh (PW-25) had prepared the site

plan marked Ex.PW25/A.

38. ASI Hawa Singh was examined as PW-24. He has deposed that

he had visited the location twice on 5th September, 2006. On the first

occasion visit was made at about 15.42 hours when PCR call was made

regarding a quarrel. Daughter of Dilbagh had disclosed to him that 2

or 3 persons had caused injuries to them. Injured were removed to the

hospital in a PCR Van. Thereafter, at 17.18 hours another call was

received from the same place. On this occasion, Suman was found in

injured condition. She was taken to the hospital. Her maternal uncle

accompanied them and on reaching the hospital Suman was declared

brought dead.

39. In view of the aforesaid position, we accept the prosecution

version that appellants Pawan and Sanjay were the perpetrators, who

had hit and injured Suman at 5.00 p.m. PW-1‟s statement to this

extent is corroborated and fully supported by the PCR Form

(Ex.PW4/A) and statement of PW-2, PW-3 on the question of motive.

Cross-examination of the witness on behalf of the appellants Pawan

and Sanjay also fortifies the prosecution version, at least to the effect

that Sanjay was present at the time of the second occurrence. We have

referred to the MLC (Ex.PW10/C) of Suman that she was brought dead

to the hospital at about 6.00 p.m. The said MLC was proved by Dr.

Shankar Narayan (PW-10), who had examined Dilbagh (PW-2) and

Sunita (PW-3) vide MLC (Ex.PW10/A and Ex. PW10/B). He has

stated that Suman was brought dead to the hospital through PCR,

Zebra 93 by ASI Hawa Singh (PW-24). She was having lacerated

wound over left tempro parietal region measuring 1×5 cm bone deep.

PW-10 was not cross-examined on whether Pawan was brought to the

same hospital for examination but was cross-examined whether

Kulber, brother of Sanjay, was produced before him by the police on

5th September, 2006 along with Dilbagh and Sunita.

40. Now, we will examine some of the other contentions raised by

the appellants in the oral arguments and written submissions. It is

submitted that PW-1, 2, 3 and 6 are related witness and, therefore, their

testimonies should be disbelieved. It is further submitted that PW-1 is

the only eye witness, whose presence itself is doubtful, and therefore

Court should not convict the appellants on the basis of the alleged

single eye witness. It is also submitted that there was delay in

recording of FIR. Common intention under Section 34 IPC should be

disbelieved as this is a case of single blow. PW-1, 2, 3 and 6 no doubt

are related to the deceased, but their testimonies cannot be disbelieved

and rejected out rightly because they are related to Suman. Their

testimonies have to be examined with great caution and care to ensure

that no person is falsely implicated and no innocent person is punished.

Normally relatives would not like the real culprits to escape. We have,

therefore, examined the statements of PW-1, 2, 3 and 6 with great

caution and care. We have thus given benefit of doubt to Guddi Devi.

However, as far as involvement of appellants Pawan and Sanjay is

concerned, there is ample evidence to show their presence on the two

occasion/incidents. The contention that names of the appellants is not

mentioned in the PCR Form (Ex.PW4/A) does not help the appellants.

PCR Forms were recorded on the basis of the information given by the

caller, who was in a hurry to inform the police. PCR Form normally

contains brief information and not elaborated details. We have

referred to the PCR Forms and do not find any reason to acquit the

appellants by giving them benefit of doubt solely because their names

do not find mention in the PCR Forms. Appellant Pawan has accepted

his presence and presence of Sanjay at the time of the first occurrence.

He also claims that Sanjay was present at the time of the second

occurrence, but he was detained and with the police at the time of the

second occurrence. Common intention is apparent when we accept

that Pawan and Sanjay had together come to the shop after the first

round of violence. The five hour gap in recording of FIR has been

examined earlier. Another contention raised is that HC Ramesh, who

had visited the hospital, as per the statement of Constable Rishi Pal

(PW-23), was not examined. It is stated that HC Ramesh was not cited

as a witness in the charge sheet. This is incorrect. HC Ramesh was

cited as a witness, but statement was made by the Additional Public

Prosecutor as recorded in the order dated 28th January, 2009. His name

was dropped since SI Anand Prakash (PW-22) had deposed on the

relevant facts.

41. In view of the aforesaid discussion, we allow the appeal filed by

Guddi giving her benefit of doubt. She is acquitted and her conviction

is set aside. However, we dismiss the appeals filed by Pawan and

Sanjay. Their conviction and sentence under Section 302 read with

Section 34 and 323 read with Section 34 IPC are maintained. The

appeals are accordingly disposed of.

(SANJIV KHANNA) JUDGE

(SIDDHARTH MRIDUL) JUDGE MAY 1st , 2013 NA/VKR