Jai Kishan @ Jacky vs State
2013 Latest Caselaw 2282 Del

$~

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.A.1433/2010

       Prakash Kumar @ Pakka                         ..... Appellant
                       Through:           Mr. Ajay M. Lal, Advocate

                      versus

       STATE                                         ..... Respondent
                               Through:   Ms. Ritu Gauba, APP

                               AND

+      CRL.A. 1194/2010

       Jai Kishan @ Jacky                            ..... Appellant
                         Through:         Mr. Mohit Garg, Advocate

                      versus

       STATE                                         ..... Respondent
                               Through:   Ms. Ritu Gauba, APP

                               AND

+      CRL.A. 1432/2010

       Suraj Kumar Thakur                             ..... Appellant
                        Through:          Mr. G.S. Sharma, Advocate

                      versus

       STATE                                         ..... Respondent
                               Through:   Ms. Ritu Gauba, APP

                               Date of Decision: May 16, 2013




Crl. A. 1432-33/2010 & Crl.A.1194/2010                          Page 1 of 54
 CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE SUNITA GUPTA

                              JUDGMENT

: SUNITA GUPTA, J.

1. These appeals have been preferred under Section 374 of Criminal Procedure Code, 1973 assailing the order dated 26th August, 2010 vide which the appellants Prakash Kumar @ Pakka, Suraj Kumar Thakur and Jai Kishan @ Jacky were held guilty for offences under Section 302/34 IPC while co-accused Prakash Raj @ Pintu was acquitted giving him benefit of doubt. Vide order dated 30th August, 2010, all the appellants were sentenced to undergo life imprisonment and also to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for two months.

2. Prosecution case succinctly stated is as follows.

3. Police machinery was set in motion on receipt of an information regarding stabbing of one person, namely, Ram Chander on 22 nd January, 2004 on the basis of which DD No. 16A, Ex. PW22/A was recorded in the Police Station, Patel Nagar. The said DD was handed over to SI Suresh Kumar who along with Constable Suresh Kumar reached the place of occurrence at Jhuggi No. WZ 157/207, Gali No. 1, Prem Nagar, Patel Nagar, Delhi. On reaching there, he came to know that Ram Chander was removed to hospital in PCR. No eye witness was available at the spot. After leaving Constable Suresh Kumar at the spot, SI Suresh Kumar went to DDU Hospital. In the

meanwhile, Constable Kishan Singh reached DDU Hospital and handed over DD No.44B, Ex. PW 22/B mentioning about the death of Ram Chander to SI Suresh Kumar. Inspector Ram Sewak, SHO, Police Station, Patel Nagar also reached the DDU Hospital on being apprised about both the DD entries. SI Krishan Kumar collected the MLC of deceased Ram Chander on which the doctor had mentioned „brought dead to casualty‟. On inspection of dead body, one stab injury on left side of the chest of the deceased was noticed. Ramadheen @ Molla, elder brother of the deceased met the police officials in the hospital and SI Suresh Kumar recorded his statement Ex. PW3/A, which became bedrock of investigation. FIR Ex.PW2/A was recorded.

4. Scene of the occurrence was inspected by the Investigating Officer of the case. The Crime Team and the photographer arrived at the spot and photographs were taken. Site Plan of the scene of occurrence was prepared at the instance of Ramadheen @ Molla. Blood lying in the Jhuggi, earth control, blood stained stones were lifted from the spot and were seized vide seizure memos Ex. PW-3/B to Ex.PW3/D. Post mortem of the dead body of the deceased Ram Chander was conducted by Dr. M.M.Narnaware who gave his report Ex.PW12/A. After post mortem, the dead body of deceased Ram Chander was handed over to his brother and wife, vide handing over memo Ex. PW3/F.

5. It is further the case of the prosecution that on 1 st February, 2004, accused Suraj was apprehended from the gate of Railway Station, Patel Nagar at the identification of complainant Ramadheen.

He was arrested vide memo Ex. PW3/G. On 13th April, 2004 accused Prakash Kumar @ Pakka and accused Prakash Raj @ Pintu were apprehended on the basis of secret information from Punjabi Basti, Baljit Nagar, Delhi. Both of them were interrogated and their disclosure statements Ex. PW-3/P and Ex. PW-3/Q were recorded. Both the accused were arrested. Both the accused pointed out the place of incident. In pursuance to the disclosure statement made by the accused Prakash Kumar @ Pakka, one button actuated knife was recovered from the bushes near Railway line, which was seized vide seizure memo Ex.PW3/U. The case properties were deposited in Malkhana. Subsequent opinion of the Doctor regarding weapon of offence was obtained. Search for remaining accused were made but they could not be arrested as such charge sheet was submitted against three accused, namely, Suraj Kumar, Prakash @ Pakka and Prakash Raj @ Pintu. Accused Jai Kishan @ Jacky and Vikram were put in column No.2.

6. During the course of trial, accused Jai Kishan @ Jacky who was earlier declared proclaimed offender was arrested on 26th February, 2005 and supplementary charge sheet was filed against him. However, Vikram @Vakhat Ram could not be arrested and he was declared proclaimed offender.

7. After the case was committed for trial, charge for offence under Section 302 IPC was framed against the accused Suraj Kumar Thakur, Prakash @ Pakka and Prakash Raj @ Pintu on 7th October 2004 whereas accused Jai Kishan @ Jacky was charged for the same offence on 15th July, 2008. All the accused pleaded not guilty to the

charge and claimed trial.

8. In order to substantiate its case, prosecution examined 27 witnesses.

9. All the incriminating evidence was put to the accused persons while recording their statements under Section 313 Cr. P.C. All the accused pleaded their innocence and alleged false implication in the case. Prakash @ Pakka and Prakash Raj @ Pintu examined DW-1 Constable Lachha Ram who proved the DD No. 421 dated 9 th April, 2004, DD No. 464 dated 10th April, 2004, DD No.465 dated 10th April, 2004 and DD No. 503 dated 11th April, 2004(Ex. DW1/A to DW1/D). Accused Suraj examined DW-2 Sh. Subhash Kumar, his father, who deposed that he was lifted by Delhi Police on 30 th January, 2004 from the house at about 11:00 pm by SI Babu Lal. He was taken to police station at Patel Nagar and was detained there for 2-3 days. Thereafter his son was forced to surrender in the police station Patel Nagar and only thereafter he was allowed to leave the police station.

10. After hearing learned counsel for the parties vide impugned order, accused Prakash @ Pukka, Suraj Thakur and Jai Kishan @ Jacky were held guilty for offence under Section 302/34 IPC while accused Prakash Raj @ Pintoo was acquitted granting him benefit of doubt. The said order of conviction has been assailed by all the three convicted appellants by filing the present appeal.

11. We have heard Mr. Ajay M. Lal, Mr. Mohit Garg and Mr.G.S. Sharma, counsel for the appellants and Ms. Ritu Gauba, learned APP. It was submitted by learned counsel for the appellants that the prosecution‟s case hinges on the testimony of PW-3 Ramadheen, PW-

4 Sonu, PW-6 Seema and PW-7 Rekha, who are relatives of the deceased. However, PW-4 Sonu has not supported the case of prosecution. PW-6 Seema, wife of the deceased has admitted that she was not present at the place of incident and her testimony was only hearsay. PW-3 Ramadheen is the complainant, however his testimony has not even been relied upon by the learned trial court regarding main incident of stabbing but was referred to on collateral points. Testimony of PW-7 Rekha also suffered from material improvements. According to her, her statement was recorded at 4:15 pm even before the injured was taken to hospital and before the statement of her husband was recorded. If that be so, FIR should have been recorded immediately on her statement but it was recorded only after 7:00 pm. On the statement of Ramadheen, in fact, none of the witnesses were present at the spot. Otherwise they being close relatives of the deceased would have been the first persons to take him to the hospital but as per MLC, the deceased was brought to the hospital by the police officials. Even PW-23 deposed that injured was lying on the road and they removed him to hospital.

12. It was further submitted that the prosecution heavily relied upon motive to commit the crime by alleging that the accused persons used to indulge in indecent activities and used to tease girls, which was objected to by the deceased and his brother. However, no other person of the locality has been examined to prove this fact. There is no complaint by any mohalla person regarding this fact. Moreover, different versions are forthcoming inasmuch as according to wife of the deceased, the relations of deceased with the accused persons were

cordial and they even used to visit her house whereas PW-7 Rekha at the outset of her examination-in-chief deposed that their relations were strained. Motive is, however, a double edged weapon and that may be a reason for falsely implicating the accused persons in such a heinous crime. It was further submitted that although accused Prakash @ Pakka and Prakash Raj @ Pintu were shown to have been arrested from A-170, Punjabi Basti, Baljit Nager, Delhi. However, the appellants examined DW-1 Constable Lachha Ram, who brought DDs to prove that the accused were arrested under Section 41(3)/109 Cr. P.C. in Rajasthan. They were produced before the SDM, Police Station Sumer Pur, who had released them on executing a personal bond for six months. Subsequently, on 11 th April, 2004, they were again called in police station Sumer Pur and were handed over to SI Kishan from police station, Patel Nagar, Delhi. In view of this documentary evidence, the oral testimony of the witnesses that the accused were arrested from Punjabi Basti, Baljit Nagar, Delhi stands falsified and therefore, the subsequent recovery of knife allegedly at the instance of accused Prakash @ Pakka also does not deserve any credence.

13. Learned counsel for the accused Jai Kishan besides supporting the submissions made by the other co-accused, submitted that the question of law involved in the instant case qua this accused is the applicability of Section 299 of the Code of Criminal Procedure. It was submitted that this appellant was shown in column No. 2 in the charge sheet submitted on 27th April, 2004. Thereafter, he was declared as proclaimed offender by virtue of proceedings under Section 82 of the

Code of Criminal Procedure, 1973 on 22nd September, 2004. The Magistrate committed the case to the Court of Sessions vide order dated 27th April, 2004 and at that point of time there was no mention of any order under Section 299 Cr. P.C. and in fact, no request was made throughout the proceedings and no order under Section 299 Cr. P.C. was passed by the trial court. As such, the evidence led against the other accused persons could not be read against this appellant inasmuch as the provisions of Section 299 Cr. P.C. have not been complied with. Even though this accused was arrested in the year 2005, charge was framed only on 15th July, 2008 by observing that non framing of the charge against this accused was just an irregularity. It was submitted that framing of charge is not a technical formality and in fact it is the very foundation of the case against the accused. After the arrest of the accused the material witnesses were not recalled for the purpose of examination qua this accused and as such their testimony cannot be read in evidence against him which form the basis of his conviction. As such, it was submitted that his conviction is also liable to be set aside on this ground. Reliance was placed on Jayender Vishnu Thakur Vs. State of Maharashtra and Anr., (2009) 7 SCC

104.

14. Rebutting the submissions of learned counsel for the appellants, it was submitted by learned public prosecutor that merely because material prosecution witnesses are relatives of the deceased is no ground to discard their testimony inasmuch as they would be the last person to falsely implicate the accused persons and allow the real accused to go scot free. Reliance was placed on Gajoo Vs. State of

Uttarakhand, (2012) 9 SCC 532; Mookkiah and Anr. Vs. State, (2013) 1 SCC (Cri) 848 and Hari vs. State of Maharastra, (2009) 3 SCC (Cri) 1254.

15. It was further submitted that even if PW-4 Sonu did not support the case of prosecution, however, that part of the testimony which supports the case of prosecution, still can be considered. Reliance was placed on Ramesh bhai Mohan bhai vs. State of Gujarat, (2011) 3 SCC (Cri) 102. Mere fact that witnesses did not accompany the deceased to hospital is no ground to doubt their presence at the spot. Reliance was placed on Abu Thakur and Ors. Vs. State of Tamil Nadu, (2010) 2 SCC (Cri) 1258. Further the ocular testimony of the prosecution witnesses find due corroboration from the medical evidence. After the arrest of the accused when knife was recovered, it was sent to the doctor and subsequent opinion was received that the injuries were possible by the recovered weapon. Further, human blood was found on the concrete material and stones at the Railway line which is another incriminating piece of evidence against the accused persons. Prosecution has also proved motive to commit the crime inasmuch as the deceased and his family members used to object to the indecent activities of the accused persons whereby they used to tease girls of the locality and the accused persons had even earlier threatened the deceased and on the fateful day, they came armed with knife and gave knife blow on the left side of the chest of the deceased which proved fatal. The deceased was unarmed and the accused persons took undue advantage. That being so, the offence under Section 302 IPC was squarely made out against them. Reliance

was placed on Satbir @ Lakha vs. State of Haryana, (2013) 1 SCC (Crl) 129 and Rajpaul Singh & Ors vs. State, (2013) 1 SCC (Crl) 7. All the accused shared common intention, as such were rightly held guilty under Sections 302/34 IPC. Reliance was placed on Mrinal Das vs. State of Tripura AIR 2011 SC 3753; Mano Dutt and Anr. Vs. State of U.P. (2012) 2 SCC (Cri) 226; Nand Kishore vs. State of M.P., (2012) 1 SCC (Cri) 378; Abdul Mannan vs. State of Assam, (2010) 2 SCC (Cri) 75 and Deepak Verma vs. State of Himachal Pradesh (2012) 1 SCC (Cri) 203.

16. As regards accused Jaikishan, it was submitted that charge was framed against him on 15th July, 2008 which was never challenged by the accused as such the same attained finality. The prosecution moved an application under Section 311 Cr.P.C. for recalling PW-3 Ramadheen and PW-7 Rekha after the arrest of this accused. However, sincere efforts were made to trace these witnesses even through DCP but the witnesses could not be traced. Under the circumstances, their testimonies were rightly relied upon by learned trial court under Section 299 Cr.P.C. qua this accused. Under the circumstances, while supporting the judgment pronounced by learned trial court, it was submitted that there is no merit in the appeals and the same are liable to be dismissed.

17. We have given our considerable thoughts to the respective submissions of learned counsel for the parties and have perused the records.

18. As regards the actual incident, prosecution case rests on the testimonies of PW-3 Ramadheen, PW-4 Sonu, PW-6 Seema and PW-7

Rekha.

19. PW-3 Ramadheen @Molla testified that he was doing cobbler‟s

job. On the date of incident he returned from his job and was taking

bath outside his house. He asked his deceased brother to bring food for

him. His brother came back and told him that accused Prakash @

Pakka, Pintu, Suraj, Jai Kishan and Vikram were coming to beat him.

Thereafter all the three accused started beating his brother and in the

meantime, accused Prakash @ Pakka asked accused Suraj to take out a

knife . Suraj took out a knife from his pocket and thereafter churi was

taken by accused Prakash @ Pakka and he gave that churi blow on

the left side of chest of his brother Ram Chander. He got scared and to

save himself he went to hide himself in another room. After changing

his clothes he came out and found his brother unconscious. His wife

was also present and he asked his wife to tie the wound with the help

of chunni. His friend Sonu was also present there and he asked him to

take his brother to hospital. He also called the police at 100 number.

Police came and took his brother to hospital. Later on, he also reached

hospital. On enquiry he was informed that his brother had already

expired. Police met him in the hospital and recorded his statement Ex.

PW 3/A. In cross-examination, he deposed that incident took place at

about 3:45 p.m. He was taking bath at a distance of 2-3 paces from the

Jhuggi. He denied the suggestion that since he was taking bath he had

not seen accused Prakash @ Pakka giving churi blow on the chest of

his brother - Ram Chander. He was confronted with some of the

portions of the statement Ex.PW3/A, where some of the facts as

deposed in the Court did not find mention.

20. PW4 Sonu is the friend of PW3 Ramadheen. This witness,

however, did not support the case of the prosecution in as much as he

deposed that after finishing his work, he was coming to his house and

saw Ram Chander having a stab injury lying on his bed inside the

house. At the instance of his elder brother he took him to the hospital.

Since the witness did not support the case of the prosecution, he was

cross-examined by learned Public Prosecutor and in cross-

examination, he denied having made any statement to the police to the

effect that on 22.01.2004 at about 3:45 p.m., he was present at the

Jhuggi or that accused Prakash @ Pakka, Jai Kishan and Suraj entered

the Jhuggi or that accused Suraj gave knife to Prakash @ Pakka and

Prakash @ Pakka inflicted knife injuries on the chest of Ram Chander.

21. PW6 Smt. Seema is the wife of the deceased and has deposed

that her husband was stabbed by Prakash @ Pakka and Suraj and one

more person. These boys used to come to the street and used to tease

girls to which her husband raised objection. On this the accused

persons extended threats to kill her husband. Her husband was

removed to hospital from the spot and he died in the hospital. In cross-

examination, she admitted that she was not present at Jhuggi No. WZ

157/207, Prem Nagar, Gali No.1, Delhi and did not witness the

occurrence. The incident was narrated to her by her sister-in-law.

22. PW7 Rekha is the wife of complainant PW3 Ramadheen. It has

come her deposition that the accused Prakash @ Pakka and Suraj used

to come in the street and used to tease girls. Even 3-4 days prior to the

date of the incident both of them came to the street. Her brother-in-law

Ram Chander asked them not to visit the street and not to tease the

girls, on which they left from the spot and next day again came along

with three more persons. Ram Chander again raised objection on

which all the five boys extended threat to him by saying „Tu kaun hota

hai tera kaam tamam kar denge‟. Then, they left from there and again

came on the next day. Accused Prakash @ Pakka, Suraj and Jai

Kishan entered the Jhuggi. Accused Prakash @ Pakka asked Jai

Kishan and Suraj to catch hold of the hands of her brother-in-law -

Ram Chander and asked Suraj to give him a knife. Thereupon Suraj

gave him a knife and Prakash @ Pakka inflicted knife blow on the

chest of Ram Chander. At that time her husband was taking bath and

due to the incident she, her husband and Sonu ran from there. Accused

Prakash @ Pakka followed her husband, then she, her husband and

Sonu hide themselves to save themselves from accused persons. Later

on, Ram Chander was removed to hospital where he succumbed to

the injuries.

23. Testimonies of all these witnesses have been assailed by learned

counsel for the appellant on the ground that PW4 - Sonu has not

supported the case of the prosecution. Remaining witnesses are

relations of deceased. PW6 Seema has admitted that she was not

present in the Jhuggi at the time of incident and her testimony is only

hear say based on information given to her by the Bhabi of her

husband. As far as the complainant - Ramadheen is concerned, he also

could not have witnessed the incident in as much as per his own

version, he was taking bath at a distance of 2-3 paces away from the

Jhuggi. Testimony of PW7 Rekha suffers from improvement. As such,

no credence can be given to her testimony. Moreover, the conduct of

the witnesses reflects that they were not present at the spot in as much

as had they been present over there, they would have removed the

injured to hospital, but as per the MLC and testimony of police

officials injured were removed to hospital by police officials.

24. As regards the fact that PW4 Sonu did not support the case of

prosecution, firstly, it may be mentioned that it is a settled legal

proposition that the evidence of a prosecution witness cannot be

rejected in toto merely because the prosecution chose to treat him

hostile and cross examine him. The evidence of such witness cannot

be treated as effaced or washed off the record altogether but the same

can be accepted to the extent that their version is found to be

dependable on a careful scrutiny thereof. Vide Bhagwan Singh Vs.

State of Haryana, (1976) 1 SCC 389, Rabindra Kumar Dey Vs. State

of Orissa, (1976) 4 SCC 233, Khujji Vs. State of M.P, (1991) 3 SCC

627 and Rameshbhau Mohanbhai Koli (supra).

25. Moreover, it has to be kept in mind that he was only neighbour

of the complainant and that being so, it is quite possible that he is

trying to suppress the manner in which Ram Chander sustained

injuries by deposing that he did not witness the incident. However, he

admitted that at the instance of his elder brother he removed injured to

hospital- meaning thereby he is not denying his presence at the spot,

but for reasons best known to him he is trying to suppress the genesis

of the case. It will be advantageous to produce the observations made

by Hon‟ble Supreme Court in Krishna Mochi vs. State of Bihar, 2002

6 SCC 81 in this regard:-

"It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of cross-examination which may sometimes be because he is a bucolic person and is not able to understand the question put to him by the skilful cross-examiner and at times under the stress of cross-examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. These days it is not difficult to gain over a witness by money power or giving him any other all urence or giving out threats to his life and/or property at the instance of persons, in/or close to powers and muscle men or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent."

26. Furthermore the prosecution case does not rest solely on his

testimony but there are other witnesses, which are PW-3 PW-6 and

PW-7. Although a submission was made that they are relations of the

deceased and as such no reliance can be placed on their testimony,

however, relationship is not a factor to affect credibility of a witness.

It is very often said that near relations would not conceal actual facts

and make allegations against any innocent person. They would not

allow the real culprits to go scot free and to rope in falsely innocent

persons.

27. In Hari (supra) it was observed by Hon‟ble Supreme Court that

relationship by itself cannot be a ground to discard their evidence. In

that case the occurrence had taken place within the house and it was

observed that in such a situation only relations would be witnesses.

The Hon‟ble Supreme Court relied upon Dalip Singh vs. State of

Punjab, AIR 1953 SC 364 where the law relating to appreciation of

evidence by relations was laid down with such lucidity that it was

quoted as :-

"26. ...Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true,

when feelings run high and there is personal cause for enmity, that here is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

25. The said principle was also followed by a Constitution Bench in Masalti and Ors. v. State of Uttar Pradesh, AIR 1965 SC

202. The Constitution Bench speaking through Chief Justice Gajendratgadkar approved the decision in the case of Dalip Singh (supra) and held as under:

"14. ...But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

26. Justice Thomas, speaking for Apex Court, in the case of State of Rajasthan v. Teja Bahadur and Ors., 2001 (3) Crimes 360 (SC) held that over insistence on witnesses having no relation with the victim will result in the criminal justice system going awry. In SCC P.513, para 20, the learned Judge held that when any incident happens in a dwelling house, the most natural

witnesses would be the inmates of the house and in such a situation "it is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything".

27. The learned Judge further clarified: (Teja Ram case, SCC P.513 para 20)

"...The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighborhood may be replete with other residents also."

The aforesaid observation fits in with the fact situation in this case in as much as the incident took place within the precincts of the house of the deceased and the relations are the only natural witnesses.

28. Substantially similar view was taken in Mookkiah (supra) and

Gajoo (supra). In view of these authoritative pronouncements, the

submission that witnesses being close relations and consequently

being partisan witnesses, should not be relied upon has no substance.

The only caution is that the Court has to adopt a careful approach and

analyse evidence to find out whether it is cogent and reliable. In this

background the testimonies of PW-3, PW-6 and PW-7 are to be

scrutinised.

29. So far as PW-3 Ramadheen is concerned, although it has come

in his testimony that he was taking bath outside the house but it was

only 2-3 paces away from the jhuggi and therefore it cannot be said

that the witness could not have witnessed the incident. He has denied

in the cross examination that the incident was not witnessed by him.

Moreover the presence of the witness at the spot stands proved in view

of the fact that it was he who had informed the PCR and also asked

PW-4 Sonu to take his brother to hospital.

30. As regards PW-6 Seema wife of the deceased, it is true that it

has come in her cross examination that she was not present at the spot

at the time of the incident and she did not witness the occurrence. Her

version was based on the narration of facts given to her by her

Jethani. As such, as regards the incident, her testimony is hearsay.

Even PW-7 Rekha has admitted that at the time of the incident Seema

was not present in the house.

31. Even if the testimony of PW-6 Seema is not to be considered

being hearsay and witnessing the occurrence by PW-3 Ramadheen is

not proved beyond doubt, even then there is the testimony of PW-7

Rekha. This witness has given a vivid narration of the entire incident

by deposing that the accused persons used to tease girls in the street

which was objected to by her husband Ramadheen and her brother-in-

law who used to ask them not to visit the street and to tease girls. This

was not liked by the accused persons and they extended threats to her

brother-in-law. On the day of the incident the accused persons came

to the jhuggi. Accused Prakash @ Pakka asked Jai Kishan and Suraj

to catch hold of her Dewar. Prakash @ Pakka also asked Suraj to give

knife to him . Thereupon Suraj gave him knife and Prakash @ Pakka

inflicted knife blow on the left side of the chest of deceased Ram

Chander. She became scared and she along with her husband ran

away from the spot. Her testimony has been assailed on the ground

that in cross examination she has deposed that her statement was

recorded in the night as well as on the next date of incident and that

her statement was recorded even prior to taking the injured to hospital

and even before the statement of her husband was recorded. It was

submitted that if that had been the case why the FIR was not recorded

on her statement. It has come in evidence that the witness is illiterate

and as such may not be intelligent enough in narrating the sequence of

events which had taken place. However, she had been very specific

in assigning the role of each and every accused by deposing that on

the asking of Prakash @ Pakka, Suraj and Jai Kishan caught hold of

the hands of Ram Chander. Suraj gave knife to Prakash @ Pakka who

inflicted the same on the left side chest of Ram Chander. She

reiterated in cross examination that accused Suraj gave knife to Pakka

and stabbed her brother-in-law. As regards the identification of the

accused persons is concerned, she deposed that Suraj and Prakash @

Pakka were known to her prior to the incident as they used to come to

the locality. However, accused Prakash Raj started visiting the

locality just about three days prior to the incident. The suggestions

given to the witness reflects that accused Prakash Raj is not even

disputing his presence at the spot in asmuch as it was suggested to her

that when the "marpit incident" started then she came to the spot.

While denying the suggestion she reiterated that she was already

present at the spot. The facts unfolded by this witness are found to be

consistent. No inherent infirmity attacking the sub stratum of the case

is noted in her testimony. She projected the sequence of events in a

cohesive manner. True account of events has been projected by her.

She fared well during the course of cross examination. Defence could

not dispel the case detailed by this witness. She is a reliable witness

and accountability of the accused can be adjudged on her sole

testimony. It is well settled that in a criminal trial, even a solitary

witness can form the basis of conviction. Law does not postulate or

require that a particular number of eye witness should depose before

conviction of murder can be sustained. It is not the number but

credibility which can be attached to a statement that matters.

Conviction is possible on the basis of statement made by sole eye

witness where his presence at the spot is established and proved. The

incident in the instant case has taken place in the jhuggi of this witness

and her presence at the spot is established. Variation in the testimony

of the witness is not on basic substratum of the case. Identity of the

accused person is not doubtful as all the accused were well known to

her from before. Even if some minor contradiction or improvement

has taken place that does not affect the sub stratum of the case. In fact,

there are catena of decisions to the effect that human memory fades

away with lapse of time and some minor inconsistencies and

discrepancies are bound to be there.

32. In Krishna Pillai Vs. State of Kerala, 1981 Cr.L.J.

1743 : AIR 1981 SC 1237, it was held as under :-

"The prosecution evidence no doubt suffers from inconsistencies here and discrepancies there, but that is a short coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies

etc. go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."

33. In Sidhan Vs. State of Kerala, 1986 Cr.L.J. 470, it was

held :--

"Minor discrepancies regarding minute details of the incident including the sequence of events and overt acts are possible even in the versions of truthful witnesses. In fact such discrepancies are inevitable. Such minor discrepancies only add to the truthfulness of their evidence. If, on the other hand, these witnesses have given evidence with mechanical accuracy that must have been a reason to contend that they were giving tutored versions. Minor discrepancies on facts which do not affect the main fabric need not be taken into account by the Courts if the evidence of the witnesses is found acceptable on broad probabilities."

"The principles that can be culled out from the aforesaid decisions are minor discrepancies and inconsistencies cannot give (sic) importance. The Court has to see whether inconsistencies can go to the root of the matter and affect the truthfulness of the witnesses while keeping in view that discrepancies are inevitable in case of evidence of rustic and illiterate villagers, who speak them after long lapse of time."

34. In 2010 III AD (Delhi) 34 Gore Lal vs. State, Division

Bench of this Court observed that variances on the fringes,

discrepancies in details, contradictions in narrations and

embellishments in inessential parts cannot militate against the

veracity of the core of their testimony, provided there is the

impress of truth and conformity to probability in the

substantial fabric of the testimony delivered. High Court

relied upon Crl. A.No.327/2007 Akbar & Anr. Vs State, and

decisions of Hon'ble Supreme Court reported as Tahsildar

Singh vs State of UP, AIR 1959 SC 1012, Bharwada

Bhoginbhai Hirjibhai vs. State of Gujarat, AIR 1983 SC

753 & Leela Ram (Dead) through Dulichand vs. State of

Haryana, AIR 1999 SC 3717 and observed that 13 principles

are to be followed while evaluating evidence of eye witnesses:

I. While appreciating the evidence of a witness, the

approach must be whether the evidence of a witness read

as a whole appears to have a ring of truth. Once that

impression is formed, it is undoubtedly necessary for

the Court to scrutinize the evidence more particularly

keeping in view the deficiencies,drawbacks and infirmities

pointed out in the evidence as a whole and evaluate

them to find out whether it is against the general tenor of

the evidence given by the witness and whether the earlier

evaluation of the evidence is shaken as to render it

unworthy of belief.

       II.       If the Court before whom the witness                gives

       evidence      had the opportunity to form the opinion about

the general tenor of evidence given by the witness, the

appellate court which had not this benefit will have to

attach due weight to the appreciation of evidence by

the trial court and unless there are reasons weighty and

formidable it would not be proper to reject the evidence

on the ground of minor variations or infirmities in the

matter of trivial details.

       III.        When eye-witness is examined at length it is

       quite possible for him to make some discrepancies.             But

       courts     should      bear in mind that       it is only when

       discrepancies        in the evidence    of a witness     are so

incompatible with the credibility of his version that the

Court is justified in jettisoning his evidence.

IV. Minor discrepancies on trivial matters not

touching the core of the case, hyper technical approach

by taking sentences torn out of context here or there

from the evidence, attaching importance to some

technical error committed by the investigating officer

not going to the root of the matter would not ordinarily

permit rejection of the evidence as a whole.

V. Too serious a view to be adopted on mere

variations falling in the narration of an incident (either

as between the evidence of two witnesses or as between

two statements of the same witness) is an unrealistic

approach for judicial scrutiny.

       VI.     By and large          a witness       cannot   be expected

       to     possess a photographic           memory and to recall the

       details of an incident.            It is not as if a video tape is

       replayed on the mental screen.

       VII. Ordinarily,          it so happens        that a witness        is

       overtaken       by events.         The witness    could     not have

anticipated the occurrence which so often has an element

of surprise. The mental faculties therefore cannot be

expected to be attuned to absorb the details.

VIII. The powers of observation differ from person to

person. What one may notice, another may not. An

object or movement might emboss its image on one

person's mind whereas it might go unnoticed on the part of

another.

IX. By and large people cannot accurately recall a

conversation and reproduce the very words used by them

or heard by them. They can only recall the main purport

of the conversation. It is unrealistic to expect a

witness to be a human tape recorder.

       X.         In regard to exact time of an incident, or the

       time duration of an occurrence                usually people make

       their estimates        by guess        work    on the spur of the

       moment at the time of interrogation.              And one cannot

expect people to make very precise or reliable estimate in

such matters. Again, it depends on the time-sense of

individuals which varies from person to person.

XI. Ordinarily a witness cannot be expected to

recall accurately the sequence of events which take place

in rapid succession or in a short time span. A witness is

liable to be confused, or mixed up when interrogated

later on.

XII. A witness though wholly truthful, is liable to

be overawed by the court atmosphere and the piercing

cross examination by counsel and out of nervousness

mix up facts, get confused regarding sequence of

events, or fill up details from imagination on the spur

of the moment. The sub- conscious mind of t he

witness sometimes so operates on account of the fear of

looking foolish or being disbelieved though the witness

is giving a truthful and honest account of the occurrence

witnessed by him.

       XIII.       A     former          statement     though      seemingly

       inconsistent       with     the evidence       need not necessarily

       be sufficient to amount to contradiction. Unless                    the

       former      statement      has the potency         to discredit      the

later statement, even if the later statement is at variance

with the former to some extent it would not be h elpful to

contradict that witness.

35. A minute scrutiny of the testimony of PW-7 Rekha reveals

that she has passed the test of reliability and her version is natural,

probable, coherent and cogent.

36. Much emphasis was laid by learned counsel for the appellant

for submitting that had these witnesses been present at the spot the

natural conduct would have been to remove the injured to hospital.

Even after noticing that the real brother has sustained such serious

injuries, Ramadheen did not took him to hospital rather asked

PW4 - Sonu to take him to hospital.

37. In Rana Partap and Ors. Vs. State of Haryana, 1983 (3)

SCC 327, Hon‟ble Supreme Court observed that every witness, who

witnesses a murder reacts in his own way. Some are stunned, some

become speechless and stand rooted to the spot. Some become

hysteric and start wailing. Some start shouting for help. Others run

away to keep themselves as far removed from the spot as possible.

Yet others rush to the rescue of the victim, even going the extent of

counter-attacking the assailants. Every one reacts in his own special

way. There is no set rule of natural reaction. To discard the

evidence of witnesses on the ground that he did not react in any

particular manner is to appreciate evidence in a wholly unrealistic

and unimaginative way.

38. In Abu Takiar (supra) it was held by the Apex Court that

behavourial pattern of individual differs and response of each

individual may not be similar. In that case, after witnessing ghastly

attack on deceased, witnesses fled away from palce of occurrence

and did not report the matter to police, it was held that presence of

witnesses at place of occurrence cannot be disbelieved on that

ground.

39. Under the circumstances, the mere fact that Ramadheen or

for that matter, Rekha did not remove the injured to hospital does

not cast doubt about their presence at the spot.

40. It has further come in evidence of PW-3 Ramadheen that the

police came to the spot and lifted the earth control (blood) etc. from

the spot and the seizure memos Ex. PW-3/B, PW-3/C & PW-3/D

bears his signatures. PW-22 Inspector Suresh Kumar and PW-27

Inspector Ram Sewak have also deposed that blood lying in the

Jhuggi, earth control and blood stained stones were lifted and were

seized vide seizure memo Ex. PW-3/B, PW-3/C and PW-3/D. During

the course of investigation, the same were sent to FSL and the report

Ex. PY was given by Sh. V. Sankaranarayanan, Senior Scientific

Assistant, Biology, opining that blood was detected on blood stained

concrete material and piece of stone. It was further opined that origin

of blood was "Human". Although, on blood stained concrete material,

blood group could not be given, however, blood sample of the

deceased was taken which was opined to be of AB group and on the

piece of stone also human blood of AB group was opined. This is also

an incriminating piece of evidence against the accused persons.

41. The ocular testimony of PW-7 Rekha that after taking knife

from accused Suraj, accused Prakash @ Pakka inflicted knife blow on

the left side of the chest of Ram Chander, finds corroboration from the

medical record inasmuch as after intimation was given to PCR, Head

Constable Giriraj, PW-23 reached the spot and removed injured Ram

Chander to DDU Hospital. In DDU Hospital PW-5 Dr. Nishu

Dhawan examined the patient vide MLC Ex. PW-5/A and found:-

"stab injury of size about 3 x 0.5 cm cavity deep on left seventh inter central space mid axillary line and

opined that the person was brought dead."

42. Thereafter, post mortem on the dead body was conducted by Dr.

M.M. Narware whose report was proved by PW-12 Dr. L.K. Barua as

the doctor had since expired. On post mortem examination, the doctor

found the following injuries on the person of Ram Chander:-

One spindle shaped penetrating wound seen on lateral aspect of left side of chest, located at 9.5 cm from left nipple and 12.5 cm from axilla. The margins are clean cut and well defined. Both the angles are acute. Size was 2.5 cms x1cm x cavity deep. In the course of injury, it penetrated the chest wall, entered the left thorasic cavity then pierced the left lung.

It was opined that injury number 1 was, in ordinary cause of nature, sufficient to cause death.

43. The other incriminating piece of evidence against accused

Prakash @ Pakka is the recovery of weapon of offence at his instance.

It has come in the testimony of PW-27 Inspector Ram Sewak that on

13th April, 2004, accused Prakash @ Pakka and accused Prakash Raj

@ Pintu were apprehended on the basis of secret information from

Punjabi Basti, Baljit Nagar. PW-16 Constable Ajit Singh, PW-26 SI

Sudesh Pal were also present. PW-3 Ramadheen also reached the spot

and he identified both the accused. ASI Sudesh Pal also identified

accused Prakash @ Pakka as he had arrested him earlier in another

case. Both the accused made disclosure statements Ex. PW-3/Q and

PW-3/P and they also pointed out the place of incident vide memo Ex.

PW-3/R and Ex. PW-3/S. Pursuant to his disclosure statement

accused Prakash Kumar @ Pakka led them to the bushes near Railway

line and pointed out the bushes and got recovered one button actuated

knife. Thereafter, remaining proceedings viz. preparation of sketch of

knife Ex. PW-3/T, converting it into a cloth parcel and sealing the

same vide seizure memo Ex. PW-3/U were conducted. Site plan of

the place of recovery of knife, Ex. PW-27/D was also prepared. The

recovery was effected in the presence of PW-3 Ramadheen and this

witness has supported the case of prosecution regarding recovery of

knife at the instance of accused Prakash @ Pakka from the bushes

near his jhuggi and significantly, his testimony was not challenged in

cross-examination. That being so, the same goes un-rebutted,

unchallenged and unshattered. It is settled law that where a party fails

to avail right of cross examination of witness despite there being

sufficient opportunity and testimony of such witness remains

unrebutted and unimpeached then in such circumstances, such

testimony has to be given due credence vide Mst. Qaisar Jahan

Begum vs. Ramzan Karim and Ors., 1998 (46) DRJ 7, Rajinder

Prasad by LRs vs. Smt. Darshana Devi, 93 (2001) DLT 1 (SC),

Sterling Holiday Resorts (India) Ltd. Vs. Mr. Manohar, 2011 (1) AD

(Delhi) 387. Moreover, all the police officials referred above also

corroborated testimony of each other regarding recovery of knife at

the instance of accused Prakash @ Pakka. Ramadheen has identified

the knife to be the same with which injuries were inflicted on the

person of his brother. During the course of investigation, the knife

was sent to FSL from where report Ex. PX was received. The blood,

however, could not be detected on the same. It may be due to the

reason that although the incident had taken place on 22nd January,

2004, however, recovery was effected only on 13th April, 2004. The

parcel containing knife was received in FSL on 30th June, 2004. This

time gap was sufficient for non-detection of blood on the knife.

However, that itself is not sufficient to presume that this was not the

knife used in the commission of offence. In Mookkiah (supra) also the

articles were allegedly blood stained but no blood was found by FSL.

It was explained that since these objects were lying on the earth and

due to efflux of time, no blood was found. It was held that recovery

itself cannot be doubted when articles concerned were duly received in

presence of witness. Subsequent opinion was also sought from the

doctor and Dr. M.M. Narware gave his opinion Ex. PW-28/A opining

that the injuries as per post mortem report could have been caused

from the weapon, which was produced before him. Under these

circumstances, even if PW-4 Sonu did not support the case of

prosecution, PW-6 Seema is not an eye witness of the incident and to

some extent it cannot be said with certainty that PW-3 Ramadheen

who although was present at the spot had actually witnessed the

incident but PW-7 Smt. Rekha has proved the case of prosecution.

44. Motive to commit the crime is also duly proved. PW3

Ramadheen and PW7 Rekha have deposed that accused Prakash @

Pakka and Suraj used to come in their street and used to do indecent

activities, and tease the girls. Even 3-4 days prior to the incident they

had come in the street, which was objected by PW3 Ramadheen and

his deceased brother Ram Chander. Deceased Ram Chander had asked

them not to visit the street, not to tease the girls and not to keep ill will

against the women of the locality. At that time they had left from

there. Rekha has further deposed that on the next day these two

accused came along with three more persons. Deceased Ram Chander

again objected to their act. All the boys extended threats to him by

saying "Tu Kaun hota hai tera kaam tamam kar denge". PW6 -

Seema has also deposed that accused Prakash @ Pakka, Suraj and one

more person used to come to their street and used to tease the girls.

Her deceased husband had raised objection not to tease them. She

further deposed that accused Jai Kishan used to come to street to tease

girls, which was objected by her deceased husband. Even two days

prior to the incident all the four accused had extended threats to kill

her husband by saying "Kaam Tamam kar denge". The fact that

accused used to indulge in indecent activities in the area prior to the

incident is not even disputed by the accused persons in as much as a

categorical suggestion was given to PW7 Rekha and she deposed:-

"It is correct that accused persons used to do indecent activities in the area prior to the incident also but we did not lodge any complaint against them in this respect."

45. The mere fact that no complaint was made by the witnesses

either to the Pradhan or to the police does not mean that the accused

did not indulge in such activities. As such, since objections were

raised by the deceased and his brother, the accused persons were

nurturing grudge against them and on that fateful day, armed with

knife entered the Jhuggi of Ramadheen and inflicted knife blow on the

person of Ram Chander, which proved fatal. The submission of

learned counsel for the appellant that motive is a double edged

weapon is true, however, it is to be kept in mind that there was no

personal enmity between the accused and the deceased or his family

members, and it was only on moral/ethical grounds that the conduct of

the accused persons was objected to by the deceased and his family

members, therefore it cannot be said that for that reason they will

implicate them falsely in such a serious case and will allow the real

culprits to go scot free. Moreover, when direct evidence regarding the

assault is worthy of credence and can be believed, the question of

motive more or less become academic as held in Molu versus State of

Haryana, 1976 (4) SCC 362.

46. In Bhagirath and Ors. vs. State of Haryana, AIR 1996 SC

3431, it was held that all that is required is to scrutinise the evidence

of the witnesses very carefully. Motive is a double edged weapon. It is

well settled that when prosecution relies upon the evidence of the eye

witnesses to prove the incident, motive assumes a secondary role. In

the present case testimony of PW7 Rekha has been found to be

acceptable and therefore adequacy of motive is not relevant.

47. Coming to the defence of accused, DW-2 Subhash, father of

Suraj deposed that he was detained in the police station for 3-4 days

and was allowed to leave the police station only after accused Suraj

surrendered there. However, it was admitted by him that he did not

make any complaint against the conduct of the police officials before

any authority or to any senior officers, as such no reliance can be

placed on his testimony. As regards DW-1, the accused have tried to

raise a defence that they were arrested by Police Station Sumer Pur in

Rajasthan and were falsely shown to be arrested in Delhi. Learned

trial court has rightly observed that as per DD dated 9 th April, 2004,

Ex. DW1/A, both the accused Prakash Kumar @ Pakka and Prakash

Raj @ Pintu were arrested under Section 41(3)/109 Cr. P.C. in

Rajasthan and they were produced before the SDM, Police Station

Sumer Pur where they were released on executing personal bond for

six months. Subsequently, on 11th April, 2004 they were again called

in Police Station Sumer Pur and were handed over to SI Krishan from

PS Patel Nagar, Delhi. Nothing has been brought on record to show as

to why and in what capacity the accused persons were asked to appear

in the Police Station on 11th April, 2004 after they were released by

SDM on 10th April, 2004. It was submitted that it has come in the

statement of the Investigating Officer that SI Kishan was posted in

Police Station, Patel Nagar during that period and as per the DD Ex.

DW-1/D they were handed over to him by Rajasthan Police. Had that

been the case, before bringing the accused persons from Rajasthan, the

Delhi Police would have sought transit remand of the accused or

would have arrested them and their arrest-memo would have been

prepared there only. DD Ex. DW-1/D only mentions that accused

persons were handed over to SI Krishan but accused have not

examined SI Krishan to prove that accused were handed over to him

or he had brought them to Delhi. Under the circumstances, the

accused do not get any benefit from these DDs.

48. Coming to the submission of learned counsel for the appellant

Jaikishan that the testimony of PW-3 and PW-7 cannot be read in

evidence against him inasmuch as these witnesses were not recalled

for further examination after the arrest of this accused and proper

proceedings under Section 299 Cr. P.C. were not initiated, the

submission is devoid of merit. Before coming to the submission, it

will be appropriate to consider the relevant provisions of the Code.

49. Chapter XXIII of the Code provides for evidence in inquiries

and trials. Section 273 of the Code mandates that all evidence taken in

the course of the trial or other proceedings shall be taken in the

presence of the accused or, when his personal attendance is dispensed

with, in the presence of his pleader, which was specifically provided.

50. Section 299 of the Code expressly provides for the power of

the Court to record evidence in absence of the accused in the

following term:-

299. Record of evidence in absence of accused:- (1) If it is

proved that an accused person has absconded, and that there

is no immediate prospect of arresting him, the Court

competent to try or commit for trial, such person for the

offence complained of, may, in his absence, examine the

witnesses (if any) produced on behalf of the prosecution, and

record their depositions and any such deposition may, on the

arrest of such person, be given in evidence against him on the

inquiry into, or trial for, the offence with which he is

charged, if the deponent is dead or incapable of giving

evidence or cannot be found or his presence cannot be

procured without an amount of delay, expense or

inconvenience which, under the circumstances of the case,

would be unreasonable.

(2) If it appears that an offence punishable with death or

imprisonment for life has been committed by some person or

persons unknown, the High Court or the Sessions Judge may

direct that any Magistrate of the first class shall hold an

inquiry and examine any witnesses who can give evidence

concerning the offence and any depositions so taken may be

given in evidence against any person who is subsequently

accused of the offence, if the deponent is dead or incapable of

giving evidence or beyond the limits of India.

51. It is neither in doubt nor in dispute that Sub-section (1) of the

said provision is in two parts. The first part provides for proof of

jurisdictional fact in respect of abscondence of an accused person and

the second that there was no immediate prospect of arresting him. In

the event, an order under the said provision is passed, deposition of

any witness taken in absence of an accused may be used against him if

the deponent is dead or incapable of giving evidence or cannot be

found or his presence cannot be procured without any amount of

delay, expense or inconvenience which, under the circumstances of

the case, would be unreasonable.

52. Now, we may also take note of Section 33 of the Evidence

Act, 1872, which reads as under:

33. Relevancy of certain evidence for proving, in subsequent

proceeding, the truth of facts therein stated. Evidence given by a

witness in a judicial proceeding, or before any person authorized

by law to take it, is relevant for the purpose of proving, in a

subsequent judicial proceeding, or in a later stage of the same

judicial proceeding, the truth of the facts which it states, when

the witness is dead or cannot be found, or is incapable of giving

evidence, or is kept out of the way by the adverse party, or if his

presence cannot be obtained without an amount of delay or

expense which, under the circumstances of the case, the Court

considers unreasonable;

Provided that-, the proceeding was between the same parties or their representatives in interest;

that the adverse party in the first proceeding had the right and opportunity to cross-examine;

that the questions in issue were substantially the same in the first as in the second proceeding.

Explanation.- A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

53. The right of an accused to watch the prosecution witnesses

deposing before a Court of law indisputably is a valuable right.

However, Section 299 of the Code is an exception. Since the law

empowers the court to utilize such statements of persons whose

statements were recorded in the absence of the accused as an

exception to the normal principles embodied in Section 33 of the

Evidence Act, inasmuch as, the accused has been denied the

opportunity of cross-examining witnesses, it is, therefore, necessary

that the pre-conditions for utilizing such statements in evidence during

trial must be established and proved like any other fact. There

possibly cannot be any dispute with the proposition of law that for

taking the benefit of Section 299 of the Code of Criminal Procedure,

the conditions precedent therein must be duly established and the

prosecution which proposes to utilize the said statement as evidence in

trial must, therefore, prove about the existence of pre-conditions

before tendering the evidence.

54. Learned counsel for the appellant relied upon Jayender Vishnu

Thakur (supra). The facts of this case, however, are quite

distinguishable inasmuch as in that case one Suresh N. Dubey was shot

dead at Nallasopara Railway Station in the suburbs of Mumbai on 9th

October, 1989. The brother of the deceased filed a complaint petition

with regard to the incident. The appellant absconded. A proclamation

under Section 82 of the Code was thereafter issued on 9 th February, 1993

declaring the appellant as a proclaimed offender. Subsequently the said

proclamation was also published in different newspapers. After

completion of investigation, charge sheet was initially submitted against

12 persons on 27th August, 1993 wherein eight persons including the

appellant, were shown to be absconding. The appellant was arrested in

Delhi in another case on 23rd July, 1993. The Investigating Officer of

the case informed the designated Judge, TADA Court at Mumbai vide

letter dated 1st September, 1993 in regard to the appellants arrest in Delhi

case. Appellant was arrested by Maharashtra Police on 23 rd October,

1993 in two other cases. The State of Maharashtra filed writ application

before the High Court of Delhi for securing the presence of the

appellants in the case pending in the State of Maharashtra including the

case in question, which was dismissed. On 11th July, 1995 an application

under Section 83 of the Code was filed by the IO wherein, it was

admitted that the appellant had not been absconding. An application was

moved by the State of Maharashtra to the designated Judge, TADA,

Delhi for transfer of the appellant to Maharashtra which was declined.

The appellant also moved an application for production warrant, which

was dismissed on 25th July, 1995. During the period 6th November, 1995

to 22nd January, 1997, ten witnesses were examined who had expired.

The appellant was formally arrested on 4th August, 1997. A

supplementary charge sheet was filed on 19th August, 1997.

Applications were filed by the public prosecutor for exhibiting the

deposition of witnesses who had since expired, which was allowed. The

appellant challenged the order. It was observed that for the purpose of

invoking the provisions to Section 299 of the Code, all the conditions

prescribed therein must be strictly complied with before recording the

statement of witnesses produced by the prosecution. The court must be

satisfied that the accused has absconded and there is no immediate

prospect of arresting him in that case. On facts, it was found that the

accused had not absconded. That being so, since, this jurisdictional fact

was not proved, therefore, the prosecution could not take the shelter of

Section 299 of the Code. However, things are entirely different in the

instant case. Charge sheet was submitted on 27.04.2004, wherein this

appellant was shown in column No. 2. Thereafter, proceedings under

Section 82-83 Cr. P.C. were initiated against him. Learned Metropolitan

Magistrate, after recording the statement of process server, and after

satisfying himself, declared the appellant (Jaikishan) and Vikram to be

proclaimed offenders. Since there were three more accused, trial

proceeded. After this accused was arrested, supplementary charge sheet

was filed against him. Charge was framed. Most of the witnesses were

recalled for further examination. However, as regards PW-3 and PW-7,

the judgment records that summons sent to these witnesses were

received back un-executed with report that premises were found locked.

Prosecution also moved an application under Section 311 Cr.P.C to

summon these witness once again. The process of both these witnesses

were ordered to be served through the SHO as well DCP (Central) at

both the available addresses of the witnesses in Delhi as well as in Bihar.

However, the report was received at Delhi address that „premises found

to remain closed. Search was made in the vicinity but the witnesses

could not be located.‟ At the Bihar address, it was reported that both

husband and wife were residing in Delhi but their forwarding address in

Delhi was not known to the neighbours in Bihar. That being so, since

these witnesses „could not be found‟, despite best efforts therefore,

evidence recorded under Section 299 Cr. P.C. qua this accused could

have been considered and was rightly considered by the learned trial

court.

55. Now coming to the applicability of Section 34 IPC, it is a

settled principle of law that to show common intention to commit a

crime it is not necessary for the prosecution to establish, as a

matter of fact, that there was a pre-meeting of the minds and

planning before the crime was committed. In the case of

Surendra Chauhan vs State of Madhya Pradesh,AIR 2000 SC

1436, Hon'ble Supreme Court held that common intention can be

developed e v e n on the spur of the moment. Also, under

Section 34, a person must be physically present at the place of

actual commission of the crime. The essence is the simultaneous

consensus of the minds of persons participating in the criminal act

and such consensus can be developed on the spot. It is not mandatory

for the prosecution to bring direct evidence of common intention

on record and this depends on the facts and circumstances of the

case. The intention could develop even during the course of

occurrence. In this regard reference can be made to Ramaswami

Ayyangar vs State of Tamil Nadu, (1976) 3 SCC 779 and Rajesh

Govind Jagesha vs State of Maharashtra, (1999) 8 SCC 428. In

other words, to apply Section 34, two or more accused should be

present and two factors must be established, i.e., common intention and

participation of the accused in the crime. Section 34 moreover,

involves vicarious liability and therefore, if intention is proved but no

overt act is committed, the section can still be invoked.

56. Section 34 has been enacted on the principle of joint liability in

the doing of a criminal act. The section is only a rule of evidence and

does not create a substantive offence. The distinctive feature of the

section is the element of participation in action. The liability of one

person for an offence committed by another in the course of criminal act

perpetrated by several persons arises under Section 34 if such criminal

act is done in furtherance of common intention of the persons who join

in committing the crime. Direct proof of common intention is seldom

available and, therefore, such intention can only be inferred from the

circumstances appearing from the proved facts of the case and the

proved circumstances. In order to bring home the charge of common

intention, the prosecution has to establish by evidence, whether direct or

circumstantial, that there was plan or meeting of minds of all the accused

persons to commit the offence for which they are charged with the aid of

section 34, be it pre-arranged or on the spur of the moment but it must

necessarily be before the commission of the crime. The true concept of

the section is that if two or more persons intentionally do an act jointly,

the position in law is just the same as if each of them has done it

individually by himself. As observed in Ashok Kumar Vs. State of

Punjab, AIR 1977 (1) SCC 746 the existence of a common intention

amongst the participants in a crime is the essential element for

application of this section. It is not necessary that the acts of the several

persons charged with commission of an offence jointly must be the same

or identically similar. The acts may be different in character, but must

have been actuated by one and the same common intention in order to

attract the provision.

57. The section does not say "the common intentions of all" nor does

it say "an intention common to all". Under the provisions of Section 34

the essence of the liability is to be found in the existence of a common

intention animating the accused leading to the doing of a criminal act in

furtherance of such intention. As a result of the application of principles

enunciated in Section 34, when an accused is convicted under Section

302 read with section 34, in law it means that the accused is liable for the

act which caused death of the deceased in the same manner as if it was

done by him alone. The provision is intended to meet a case in which it

may be difficult to distinguish between acts of individual members of a

party who act in furtherance of the common intention of all or to prove

exactly what part was played by each of them. As was observed in

Chinta Pulla Reddy Vs. State of AP, 1993 Supp (3) 134, Section 34 is

applicable even if no injury has been caused by the particular accused

himself. For applying Section 34, it is not necessary to show some overt

act on the part of the accused.

58. In the instant case, the role attributable to each of the accused

clearly demonstrates common intention and common perspective to

achieve the object of killing the deceased.

59. In, Satbir @ Lakha Vs. State of Haryana, 2013 (1) SCC (Cri)

129, a quarrel ensued. Appellant and other accused A-3 and A-4

caught hold of PWs while A-1 inflicted knife injuries on them. It was

held that but for the overt act of appellant and other accused in having

held the victims, there would have been no scope for A-1 to have

inflicted injuries. Conviction u/s 34 read with Sections 307 and 324

IPC was affirmed by High Court and Apex Court dismissed the

appeal.

60. In Raj Pal Singh & Another Vs. State, (2013) 1 SCC (Cri) 7, in

that case A-1 in fully drunken condition started abusing complainant

in filthy language. Complainant‟s husband warned appellant not to

abuse complainant. A-1 did not pay heed and asked his wife to get a

knife. A-1‟s wife A-2 brought knife and gave it to A-1 who then

stabbed the complainant. As a result whereof he fell down with

bleeding injury and was taken to hospital where he died subsequently.

A1 was arrested and at his instance knife was recovered. It was held

that deceased was unarmed and there was absolutely no physical threat

from deceased to the appellants, and A1 after being provided with

knife by A2 stabbed deceased on left side of chest on instigation of

A2, resulting in the death of the deceased. This was, thus a case

where the appellants took undue advantage and acted in a cruel or

unusual manner. Appellants were rightly held guilty of committing

murder under Section 302 read with S.34 IPC.

61. In the instant case also, the fact that deceased was unarmed and

there was absolutely no physical threat from his side to the appellants

and accused together came to the spot, armed with knife, and accused

Prakash @ Pakka asked Jaikishan @ Jacky and Suraj to hold the

hands of Ram Chander and thereupon on the asking of Prakash Kumar

@ Pakka, Suraj handed over knife to him and then Prakash @ Pakka

inflicted knife blow on the chest of the deceased Ram Chander makes

it quite clear that all the three accused shared common intention. In

other words, criminal act was done with the common intention to kill

the deceased Ram Chander. Learned trial court has rightly noticed in

its judgment that the act of all the accused persons coming together

and giving serious knife blow with active participation shows a

common intention to murder the deceased. Under these

circumstances, the conclusion arrived at by the learned trial court does

not call for any interference. The judgment of the court below does

not suffer from any illegality or infirmity.

62. While finding no merit in the appeals, we dismiss the same.

SUNITA GUPTA, J

REVA KHETRAPAL, J May 16, 2013 rs