Delhi High Court
Sanjeev Alias Sonu & Birender @ ... vs State Of Nct Of Delhi on 24 May, 2013
Author: Gita Mittal
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DATE OF DECISION: 24th MAY, 2013
+ CRL.A. No.897/2010
SANJEEV ALIAS SONU & BIRENDER @ BOYA ... Appellants
Through: Ms. Kamna Vohra, Adv.
Versus
STATE OF NCT OF DELHI ..... Respondent
Through: Ms. Ritu Gauba, APP.
+ CRL.A. No.900/2010
YAD RAM & BABLOO ... Appellants
Through: Ms. Kamna Vohra, Adv.
Versus
STATE NCT OF DELHI ..... Respondent
Through: Ms. Ritu Gauba, APP.
+ CRL.A. No.487/2012, CRL.M(BAIL) 822/2012 &
CRL.M.A.5241/2012
RAJIV ALIAS RAJU ... Appellant
Through: Ms. Kamna Vohra, Adv.
Versus
STATE ..... Respondent
Through: Ms.Ritu Gauba, APP
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE V.K. SHALI
GITA MITTAL, J
Crl.A.897/2010 & 900/2010
1. These three appeals have been filed by the appellants assailing the
judgment dated 28th May, 2010 arising out of the same incident whereby
Yad Ram and Babloo (Appellants in Cril.App.900/2010) have been
found guilty of commission of offences punishable under Section 302/34
of the Indian Penal Code while they have been acquitted of the charge of
commission of offences punishable under Section 307/34 with which
also they had been charged as well as the order of sentence dated 31st of
May, 2010 whereby they have been sentenced to suffer imprisonment for
life as well as payment of fine of Rs.5000/- each and in default of
payment of fine, to suffer simple imprisonment for a period of six
months each..
2. Sanjeev @ Sonu and Birender @ Boya (appellant in
Crl.App.897/2010) also assail the judgment dated 28th of May, 2010
whereby they have been found guilty of commission of offences
punishable under Section 307/34 of the Indian Penal Code as well as the
order of sentence dated 31st of May, 2010 whereby they have been
sentenced to undergo rigorous imprisonment for a period of four years
each for commission of the offence punishable under Section 307/34 IPC
as well as payment of fine of Rs.2000/- each; in default of which they are
required to undergo simple imprisonment for a period of six months
each.
3. Rajiv @ Raju appellant in Crl.Appeal No.487/2012 was also
arraigned for trial along with the other co-accused. He was admitted on
bail on 24th May, 2005. However, he absconded thereafter when the trial
was at the stage of recording his statement under Section 313 of the
Cr.P.C. He was subsequently declared as a proclaimed offender by the
trial court by an order dated 22nd December, 2008.
4. The trial was completed against accused Yad Ram, Babloo, Sanjeev
@ Sonu, Birender @ Boya and Manju wife of Yad Ram. After considering
the evidence and hearing the contentions of the parties, the trial court by
order dated 28th May, 2010 convicted Yad Ram and Babloo under
Section 302/34 IPC and acquitted them for commission of offences
under Section 307/34 IPC. Virender @ Boya and Sanjeev @ Sonu
though convicted under Section 307/34 IPC stand acquitted for offences
under Section 302/34 IPC. Co-accused Manju (who is the wife of Yad
Ram and sister of the other appellants) stood acquitted for all the
charges for which she was tried.
5. During the course of hearing of these appeals, the factum of
abscondance of Rajiv @ Raju was brought to the notice of this Court. An
order was consequently passed by this court on 12th January, 2012,
directing Sh. Hari Chand (who had stood surety for Rajiv @ Raju) and
was present in the court was directed to ascertain the whereabouts of
Rajiv @ Raju. The surety was also directed to produce Rajiv @ Raju.
Pursuant to the order passed on 12th January, 2013, Rajiv @ Raju was
rearrested on 25th February, 2013. He was thereafter produced before
this court and by an order dated 28th February, 2012 directed to be
produced before the concerned trial court on 2nd March, 2012.
6. After production before the trial court, Rajiv @ Raju stood trial
from the stage of recording of his statement under Section 313 of the
Cr.P.C. at which stage he had absconded. The charge was also amended
under Section 302/34 and 307/34 IPC by the trial court on 3rd March,
2012. The trial court considered the evidence on record and heard the
arguments of the learned counsel appearing for Rajiv @ Raju. By a
judgment dated 27th March, 2012, the trial court held Rajiv @ Raju not
guilty for offences under Section 302/34 and 307/34 IPC and acquitted
him for the same. However, the trial court held him guilty for
commission of an offence under Section 324/34 IPC by the same
judgment and Rajiv @ Raju was awarded a sentence for rigorous
imprisonment of two years and fine of Rs.1,000/- and in default of
payment of fine, simple imprisonment of one month by order of
sentence dated 29th March, 2012. Rajiv @ Raju assailed the judgment
dated 27th March, 2012 and order of sentence dated 29th March, 2012 by
way of Crl.A.No.487/2012.
7. Inasmuch as the appeals lay a challenge to the judgments which
relate to the same incident on the night of 25th February, 2004 and have
been rendered on common evidence, the three appeals are taken up
together for the purposes of consideration.
8. The proceedings in the case commenced upon a wireless message
received by the police station Kotla Mubarakpur, Delhi at 11.39 p.m. on
the 25th of February, 2004 which was recorded as DD No.21A (Exhibit
PW16/A) to the effect that there had been a fight in House No.737,
Bhagwan Gali, Gurudwara Road, Kotla Mubarakpur.
9. The details of the incident stand narrated in a statement (Exhibit
PW1/A) attributed to Rizwan Khan, son of the deceased Mohd Rashid
Ahmed Khan recorded by SI Fateh Singh (PW 16). Briefly summed up,
Rizwan Khan had disclosed that his deceased father Mohd Rashid
Ahmed Khan was having an illicit relationship with Manju, wife of the
appellant-Yad Ram - a tenant on the second floor of the building
wherein the deceased was residing with his family on the ground floor.
Kamrunisa (wife of the deceased) had commiserated with Yad Ram
(Manju‟s husband) as well as her four brothers Babloo, Rajiv @ Raju,
Sanjeev @ Sonu and Birender @ Boya about this illicit relationship in this
regard and asked them to reason with Manju about the same. For this
reason, Manju‟s relatives started nursing a vengeance against the family
of Rizwan Khan and were frequently abusing and threatening them. On
the 25th of February, 2004 at about 11.15 p.m., when the deceased and his
family were at home, Yad Ram came to the courtyard of the building
with an iron rod in his hand and started abusing Kamrunisa and her
daughter and levelled unfounded allegations against them. Rizwan,
along with his elder brother Imran, younger brother Ijaz, sister Kiran
and parents went out into the courtyard. Manju also reached there and
supported her husband in levelling false allegations against Rizwan‟s
sister. All of them tried to reason with Yadram & Manju. At this, Manju
called out to her four brothers (Babloo; [email protected]; [email protected]
and [email protected]) who lived on the first floor of the opposite house and
exhorted them that this was a good occasion to finish these people.
Manju grabbed his (Rizwan„s) sister-Kiran‟s hair and started beating her.
Yad Ram beat the deceased Mohd. Rashid Ahmed Khan giving fist
blows, and also beat him with his leg as well as the iron rod. In the
meantime, Babloo, Rajiv @ Raju, Sanjeev @ Sonu and Birender @ Boya
(four brothers of Manju), came down to the courtyard wielding and
waving knives. With one object, these persons stated that they would
not leave them alive. Yad Ram held Mohd Rashid Ahmed Khan and
Babloo attacked him on the neck with a knife. Sonu attacked Rizwan
Khan from the front while Rajiv @ Raju and Birender @ Boya attacked
Rizwan Khan‟s younger brother Ijaz with their knives. Manju threw his
sister Kiran by her hair. Their father starting bleeding from the injury on
his neck inflicted by Babloo‟s knife and fell near the cycles in the
courtyard. At that time, a lot of people from the neighbourhood
gathered. On seeing the crowd and taking advantage of the same, the
assailants ran away from the spot. Rizwan Khan also suffered injury on
his hand because of the knife attack and his father on the neck and
brother Ijaz who was attacked with knives, suffered injury on his back
and on the back side of his right thigh. Rizwan Khan and his younger
brother removed their father Mohd Rashed Ahmed Khan in a three
wheeler vehicle to the All India Institute of Medical Sciencies. He was
declared brought dead by the doctor in the hospital. MLC no.1928 was
recorded at 11.42 p.m. regarding the same (Exhibit PW11/A).
10. SI Fateh Singh, PW-16 was posted on emergency duty on the
intervening night of 25th and 26th February, 2004 at PS Kotla
Mubarakpur. On receipt of DD-21A (Exhibit PW-16/A), SI Fateh Singh
accompanied by Constables Satya Narain and Virender proceeded to the
spot in House No.737 Bhagwan Gali, Gurudwara Road, Kotla
Mubarakpur where they were informed that the injured had been
shifted to the hospital. PW-9-Ct. Virender was left at the spot. PW 16-SI
Fateh Singh accompanied by Ct. Satya Narayan (PW3), proceeded to the
All India Institute of Medical Sciences (`AIIMS‟). He collected the MLC
of Mohd Rashid Khan and found Mohd Rizwan and Mohd Ijaz also
injured at the hospital whose medical had also been conducted.
11. PW-16 moved an application seeking the doctor‟s opinion with
regard to the fitness of the injured brothers. Upon the doctor declaring
them fit for statement, he recorded the statement of Rizwan vide memo
PW-1/A gave his endorsement (Exhibit PW-16/B) thereon; prepared the
rukka which was handed over to Constable Satya Narayan for
registration of the FIR and intimation to the crime branch.
Based on this rukka, FIR No.86/2004 (Exhibit PW2/A) was
registered on 26th February, 2004 under Sections 302/307/34 of the
Indian Penal Code and Section 27 of the Arms Act at the police station
Kotla Mubarakpur.
12. PW-16 SI Fateh Singh returned to the spot, where the crime team
was already present. At the spot, the police lifted blood from four
different places as well as from cycles which were standing near a tree at
the spot; vide memo Exhibit PW9/A, a blood stained piece of earth; vide
memo Exhibit PW9/B, one blood stained iron rod from the roof top of
the house; vide memo Exhibit PW9/C, a blood stained curtain; vide
memo Exhibit PW9/D, clothes of Mohd Rizwan ; vide memo Ex.PW9/E,
blood stained t-shirt of Javed; vide memo Exhibit PW9/F; blood stained
clothes of Ijaz and vide memo Exhibit PW9/G, clothes of Kamrunisha
and Kehkhasa.
13. A post mortem was conducted on the body of deceased Md.
Rashid Khan on 26th February, 2004 by Dr.Parthasarthi Pramanik who
gave a detailed report dated 26th February, 2004.
14. At this stage during the investigation, information was received
that the accused Yadram was present in the area and was arrested on
26th February, 2004. A disclosure statement given by him was recorded
as (exhibit PW-16/C) and his personal search was conducted (Ex.PW
9/H). Yadram was found having injuries over his head and was sent to
the hospital for his medical examination in custody with Constable
Balbir. The other accused persons could not be traced.
15. During the course of the investigation, PW-5 SI Mahesh Kumar
visited the place of occurrence, which was the open chowk in the
Bhagwan Gali, Bhola Nagar, K.M. Pur on 5th March, 2004 and on the
pointing out of PW-15 Imran, took rough notes and measurements based
whereon he prepared the scaled site plan exhibit PW-5/A. The site plan
shows the position of the place where the assailants attacked the
deceased, Mohd. Rashid Khan; injured Rizwan Khan and his brother as
well as the place where blood was found on the site; the position of the
cycles which had blood stains as well as the place where the blood
stained iron rod was recovered.
16. On completion of the investigation, the police filed a chargesheet
on 21st May, 2004 against Yadram (who had been arrested) while
Surinder @ Babloo, Rajiv @ Raju, Sanjeev @ Sonu, Birender @ Boya
(accused) and Manju were shown as absconding. The challan stated that
the proceedings under Section 82/83 had been initiated against
absconders. A perusal of the impugned judgment of the trial court
would show that on 20th June, 2004, Surinder @ Babloo and Sanjeev @
Sonu were present in Court. They were arrested and their personal
search was effected vide memo exhibit PW-18/A and exhibit PW-18/B.
17. Manju (wife of Yadram); Birender @ Boya & Rajiv @ Raju also
surrendered on 24th June, 2004 and were taken into custody.
18. The learned trial judge framed the following charges on 28th
September, 2004 against appellant Yad Ram for commission of the
offence under Section 302/307/34 of the Indian Penal Code:-
"C H A R G E
That on 25/2/04 at about 11.15 pm at courtyard of
House No.737, Bhagwan Gali, Bhola Nagar, Kotla Mubarak
Pur, New Delhi, you alongwith your co-accused Babloo,
Rajiv, Sanjiv, Virender and Manju (all Pos) in furtherance of
your common intention and object committed murder of
Md. Rashid Khan and thereby committed an offence
punishable u/s 302 IPC r/w Section 34 IPC and within my
cognizance.
Secondly, on the abovesaid date, time and place
you alongwith your co-accused in furtherance of common
intention of you all voluntarily caused injuries with knife
on the person of Md. Azad with such intention and
knowledge under such circumstances that if the death of
said Md. Azad is caused you all will be guilty of murder
and thereby committed an offence punishable u/s 307 IPC
r/w Section 34 IPC."
19. The charges were amended by an order dated 18th May, 2010 when
the name of the co-accused Rajiv @ Raju was added.
20. Rajiv @ Raju appeared in the matter when the prosecution
evidence was recorded. But on 20th of December, 2008, at the stage when
his statement under Section 313 Cr.P.C. was to be recorded, he stopped
appearing and was declared a proclaimed offender.
21. Apart from the account given by these witnesses, the prosecution
has placed reliance on the medical legal cases of the deceased as well as
PW1-Rizwan Khan; PW4-Mohd Ijaz and the post mortem report of the
deceased.
22. With regard to the same incident, the prosecution has also proved
the MLC of PW 1 Rizwan @ Kushu (Exhibit PW7/A recorded at 1 a.m.
on the 26th of February, 2004 by Dr. Parvez who has noted a lacerated
wound on the right ring finger and index finger and opined that the
injuries were simple in nature and inflicted with a blunt object. The
prosecution has also proved the MLC of Aizaj/Ijaz @ Bholu recorded at
12.45 a.m. (Exhibit PW7/B) wherein the doctor has noted a punctured
sharp wound on the back of the right thigh and on his back and opined
that the injuries were simple in nature and inflicted with a sharp
weapon. The prosecution has examined Dr. Parvez as PW 7 to prove
the aforenoticed MLCs.
23. The prosecution has also examined Dr. Tarun Jain as PW6 who
was the radiologist at the All India Institute of Medical Sciences who
examined the X-ray of Mohd Rizwan Khan @ Kushu and gave a report
(Exhibit PW6/A) stating that there were no fractures on his person.
24. The report of the post-mortem conducted on the body of deceased
Rashid Khan was filed on record. It is noteworthy that this post mortem
report was filed by the prosecution but not proved in evidence by the
prosecution. The prosecution evidence was closed on 31st January, 2008
and the matter was posted for recording of the statement of the
accused/defence evidence on 22nd February, 2008. It appears that at this
stage, the prosecution realised that the post-mortem report had not been
proved on record as is evident from the following proceedings of the
trial court.
"22.02.08
Present : Addl.PP for the state.
Accused Manju, Virender and Rajiv present on bail with Ms.
Manjeet Arya
Other accused in JC with counsels Ms. Manjet Arya
Ld Addl.PP states that post-mortem report could not be proved due
to inadvertence. Ld counsel for the accused persons Ms Manjeet
Arya has no objection if the post-mortem repport is exhibited
without formal proof.
In view of this post-mortem report of the deceased Rashid Ahmed is
exhibited as PW PX2.
Statement of the accused persons under dictation. Not completed.
To come up for statement of accused/defence if any for 11.3.08.
Sd/-
ASJ/ND"
The post mortem report was thus marked Exhibit PX2.
25. The relevant extract of Exhibit PX reads as follows :-
"1. A stab wound of size 3.5cm x 3 cm, horizontally placed is
present in the middle third of the lateral neck in the left side. It is
160 cm away from the left heel 7 cm away from left mastoid
prominence, 4 cm from the midline and 23 cm from the top of the
head. A track is established of length of 10 cm in downward and
lateral direction piercing left sternocleido mastoid muscle and left
jugular vein and puncturing left pleural cavity (upper part). The
left pleural cavity is filled with blood and the left lung is collapsed.
The upper and medical margins of the above mentioned stab wound
is contused.
2. An abrasion of size 2 cm x 1 cm in lateral side of left knee 30
cm from heel (left side).
3. An abrasion of size 3 cm x 1 cm in the outer aspect of middle
third of the abdomen. It is 24 cm from left iliac crest 27 cm from
shoulder top and 10 cm from the midline.
Opinion : The cause of death in this case is haemorrlogic shock due
to injury no.1 caused by sharp edged weapon which is sufficient to
cause death in ordinary course of nature. Injury nos. 2 and 3 are
caused by blunt force. All injuries are ante mortem in nature."
26. The prosecution produced 18 witnesses out of 22 witnesses cited
by it. The case of the prosecution hinges primarily on the eye-witness
testimony of six witnesses, which includes three sons of the deceased
being, PW-1 Rizwan Khan; PW-4 Izaj Mohd. Khan; PW-15 Imran; his
daughter PW-12 Kiran and widow PW-14 Smt Kamronissa as well as
one stranger PW-17 Gaurav Gupta, who was residing in the area, a
chance witness. The statements of the appellants in Crl.Appeal Nos.897
& 900/2010 were recorded under the provisions of Section 313 of the
Code of Criminal Procedure in which they asserted that they have been
falsely implicated in the case. These appellants chose to set up a defence
and examined three witnesses, DW-1 Dinesh Kumar, DW-2 Smt. Suman
and DW-3 Gulab in their defence.
27. After a careful consideration of the matter, the learned Trial Judge
has passed the judgment dated 28th May, 2010 holding Yadram and
Babloo guilty of the offences punishable under Section 302/34 of the
Indian Penal Code (IPC) and convicted them of the same. Yadram and
Babloo were acquitted for commission of offences punishable under
Section 307/34 IPC giving them the benefit of doubt. By the same
judgment, Sanjeev @ Sonu and Birender @ Boya have been found guilty
for commission of offences punishable under Section 307/34 IPC with
which they were charged, while acquitting them of the charge for
commission of offences punishable under Section 302/34 IPC. The court
acquitted Manju of the charges of commission of the offence punishable
under Section 302/307/34 IPC for which she was tried. The State has
not challenged her acquittal or the acquittal of [email protected] and
[email protected] for commission of offences punishable under Section
302/34 IPC.
28. The appellants Yad Ram, Babloo, Birender @ Boya and Sanjeev @
Sonu were heard on the point of sentence and by an order dated 31 st
May, 2010, the trial judge imposed the afore-noticed sentences upon
them.
Conviction of Rajiv @ Raju
29. As noted above, by a separate judgment dated 27th March, 2012,
Rajiv @ Raju has been held guilty for commission of an offence under
Section 324/34 IPC and by an order of sentence of the same date,
awarded rigorous imprisonment of two years and find of Rs.1,000/-.
Challenge to testimonies - on the ground of contradictions in the
statements
30. It is urged by Ms. Kamna Vohra, learned counsel for the appellants
that the prosecution witnesses have contradicted themselves in all
material particulars.
31. Learned counsel for the appellants has pointed out that the oral
testimony of PW1 Mohd Rizwan contradicts the rukka Exhibit PW1/A
as to the place where it was recorded is concerned. In his deposition in
court, he has stated that the police recorded his statement at the spot
that is the situs of the incident. However Exhibit PW1/A has recorded
that the statement was recorded in the hospital. In his further cross
examination, he has stated that the statement was recorded outside the
hospital building.
32. We are unable to find any major contradiction between the
statement given by PW 1 and the statement attributed to him as Exhibit
PW1/A. Human memory with regard to an incident, especially one
which must have been painful to recollect, suffers from such blurring.
However, there is no material contradiction between the statement
Exhibit PW1/A made by PW1 to the police and his deposition in court.
33. The challenge by Ms.Kamna Vohra, learned counsel for the
appellants rests primarily on a close reading and examination of the
testimony of the six eye-witnesses. It was urged by learned counsel for
the appellants that the deposition of the six eye-witnesses in the instant
case suffered from material contradictions and that they were not
credible. It is urged that PW-17 Gaurav Gupta is a stock witness and his
very presence at the spot was doubtful, and therefore his deposition
with regard to the occurrence ought not to be relied. Learned counsel
for the appellants urges that the testimony of eye-witnesses, PW-1, 4, 12,
14 and 15 would be motivated on account of their being close relatives of
the deceased. It is urged that their testimony cannot be relied upon
without corroboration in material particulars for this reason.
34. So far as the sequence of events is concerned, Exhibit PW1/A
which records the statement of Mohd Rizwan Khan as to the efforts to
reason with Yad Ram, stands corroborated by the statement of PW12
Kiran; PW 14 Smt. Kamrunisha, widow of the deceased. PW15 Imran,
son of deceased also refers to Mohd Rashid Khan trying to calm down
accused Yad Ram. PW 12, 14 and 15 all refer to Yad Ram being under
the influence of liquor and armed with a rod on the fateful day. PW 12,
14 and 15 referred to the exhortation by Manju while PW1 Mohd Rizwan
has made a categorical statement that it was Yad Ram who had called
out his brothers-in-laws with the exhortation that it was a good occasion
to finish the other side.
35. The learned trial judge has disbelieved the case of the prosecution
to the extent of the attribution of the role to Manju of calling her brothers
and exhorting them to kill. It requires to be borne in mind that the
occurrence took place in a crowded locality in the night time. While
there were seven or more people from the family of the deceased and six
accused persons all present in the confined space. In the melee which
would have ensued, it is reasonably possible to be mistaken about the
exhortation. However, in the given facts, nothing much would turn on
the question of who gave the exhortation.
36. Ms. Kamna Vohra has also emphasised that the post mortem
report of deceased Mohd Rashid Khan contradicts the statement of PW1
to the effect that Yad Ram had given an iron rod blow on the head of the
deceased. It is urged that no such injury is reported in the post mortem
report.
37. The prosecution has claimed to have effected a seizure (Exhibit
PW9/B) of an iron rod upon the disclosure made by accused Yad Ram.
As per PW 9-Ct. Virender, the iron rod was lying inside one room
occupied by accused Yad Ram. Be that as it may, apart from its
recovery, the iron rod has not been connected by the prosecution to the
injuries suffered by the deceased person. The charge against the
appellants is that in furtherance of their common intention and object,
they committed the murder of Mohd Rashid Khan by causing knife
injuries. Even otherwise, there is no reference to an iron rod blow by
Yad Ram to the deceased. If it had been, it is not implausible that the
iron rod blow was not sufficient to cause physical injury to the deceased
person, or for it to have left a mark on his person.
38. The appellants have vehemently challenged the presence of PW4 -
Ijaz Khan. We find that it is not disputed that Ijaz Khan was a son of the
deceased Mohd Rashid Khan. His presence in his residence in the night
or the scene of occurrence, given the hour of the night when the incident
took place is therefore natural. PW-1 Ijaz was also injured in the
incident. His MLC and injuries stand proved in the testimony of the
doctor. However, even if the contention of learned counsel for the
appellants to the effect that his presence at the spot is doubtful was to be
accepted, the appellants have not been able to challenge the testimony of
PW 1, 12 and 14 who were eye witnesses.
39. In this regard, the trial judge has carefully noticed that the
testimonies of the prosecution witnesses with regard to the violence
against them is corroborated by the injuries not only on the person of the
deceased but also on PW-1 Rizwan Khan, PW-4 Ijaz Mohd. Khan, as
mentioned in their MLCs exhibit PW-7/A and 7/B.
40. It is noteworthy that with regard to the occurrence of the
intervening night of 25th and 26th February, 2004, the court commenced
recording of the deposition of PW-1 Rizwan Khan on 2nd May, 2005.
The recording of his evidence did not end that day. As per the record,
on 11th August, 2005 a fifty six page deposition of PW 1 was recorded.
The testimony of PW-4 Ijaz Mohd. Khan was recorded on 12th
September, 2006 and went on till 18th July, 2007, that is for almost ten
months. The statement of PW-12 Kiran, daughter of the deceased was
recorded on 21st July, 2006; PW-14 Smt. Kamrunisha was recorded on
12.9.2006; PW-15 Imran was recorded on 13th September, 2006, more
than two years seven months after the incident.
41. The ability of the human mind to recollect events which have
occurred even a few days prior varies from person to person. Passage of
time has a definite and sombre effect on memories, especially those
recollection whereof would be painful. The date when the occurrence
took place is separated from the making of the deposition in the court of
law by, not a few days or months, but by over a year. Human mind has
a tendency to block out the unpleasant or painful events. It is also to be
noted that the instant case is not concerned with one or two eye-
witnesses but involves the testimony of six eye-witnesses to the
occurrence, two of whom also received injuries on their person in the
occurrence as is supported by the evidence of the doctor at AIIMS and
their MLCs. Their testimony relates not only to injuries suffered by
them but involves deposing about the traumatic and fatal injury to their
father.
42. Ms.Kamna Vohra, learned counsel for the appellants has taken us
carefully through the entire deposition of the eye-witnesses.
Inconsistencies and contradictions pointed out by learned counsel for
the appellant in the testimonies of the eye witnesses are natural and
would happen if different persons are asked to describe the same
incident after passage of any length of time. The important aspect of the
matter is that all the eye witnesses were categorical on Yad Ram holding
the deceased while Babloo stabbed him. The injured persons also
categorically named their assailants.
43. It is trite that contradictions in matters of detail does not impact
the truthfulness of the witnesses. In the instant case, in our view, apart
from minor matters of detail, Ms.Kamna Vohra, learned counsel for the
appellants could not point out any contradictions in material particulars.
The evidence of the witnesses stand corroborated in material particulars
and it is not possible to hold that contradictions go to the very basis of
the prosecution case in the instant case.
44. On the issue of contradictions in the deposition of witnesses,
reference can usefully be made to the decision of the Supreme Court in
the AIR 1986 SC Luxman Kumar vs. State. The court has observed as
follows:-
"43. xxx It is common human experience that different
persons admittedly seeing an event give varying
accounts of the same. That is because the perceptiveness
varies and a recount of the same incident is usually at
variance to a considerable extent. Ordinarily, if several
persons give the same account of an event, even with
reference co minor details, the evidence is branded as
parrot like and is considered to be the outcome of
tutoring. Having read the evidence of these witnesses
with great care, we are of the view that the same has the
touch of intrinsic truth and the variations are within
reasonable limits and the variations instead of providing
the ground for rejection, add to the quality of being near
to truth."
It has been held that identical testimonies without any kind of
contradictions may render them suspect sometimes.
45. In the judgment of the Supreme Court reported at AIR 1973 SC 262
Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra, Justice V.R.
Krishna Iyer made the following observations on evaluation of evidence
of a witness which may not be found to be completely credible:-
"We must observe that even if a witness is not
reliable, he need not be false and even if the Police
have trumped up one witness or two or has
embroidered the story to give a credible look to their
case that cannot defeat justice if there is clear and
unimpeachable evidence making out the guilt of the
accused. Certainly, it is a primary principle that the
accused must be and not merely may be guilty before a
court can convict and the mental distance between
`may be‟ and `must be‟ is long and divides vague
conjectures from sure conclusions."
46. These very observations apply to the present case as well, though
no improvements in deposition have been pointed out to us. We hold
that the defence has not been able to shake the testimony of these
witnesses in their cross-examination and that the testimonies stand
corroborated in all material particulars.
47. Learned counsel for the appellant has also vehemently assailed the
testimony of the witnesses on the ground that they are all family
members of deceased Mohd Rashid Khan. It is urged that for this
reason, their testimony needs to be closely scrutinised and in fact, given
the nature of contradictions, deserves to be discarded.
48. So far as some of the eye-witnesses being close relatives of the
deceased person is concerned, there is no absolute proposition that
related witnesses must be disbelieved.
49. Ms. Ritu Gauba, learned APP has drawn our attention to the
pronouncement of the Supreme Court in (2010) 3 SCC (Cri) 211 Balaraje
alias Trimbak vs. State of Maharashtra and (2009) 3 SCC (Cri) 1254
Hari vs State of Maharashtra. In paras 29 to 31, the court dealt with a
similar objection taken by the appellants against the prosecution. In this
case, the court found that the evidence of the PWs 1 and 2 - who were
sons of the deceased and eye-witnesses to the incident as that of PW 8
(wife of PW 1) was consistent, categorical and unfolded the prosecution
version. Their presence at the place of occurrence, which was within
their house, was natural. After exercising due care and caution,
considering the fact that they were related witnesses their evidence was
found acceptable.
50. On the issue of witnesses who are related, reference may usefully
be made to the judicial pronouncement authored by Vivian Bose, J
reported at AIR 1953 SC 364 Dalip Singh vs. State of Punjab (at para 26
at pg 366) wherein the court had observed as follows :-
"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."
This pronouncement was reiterated in (1974) 3 SCC 698 : 1974 SCC
(Cri) 222 Guli Chand vs. State of Rajasthan.
51. The Constitution Bench pronouncement of the Supreme Court in
AIR 1965 SC 202 Masalti vs. State of U.P. approved the decision in
Dalip Singh (supra) observing as follows :-
"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."
52. So far as an incident which has occurred inside a dwelling house is
concerned, in (1999) 3 SCC 507 : 1999 SCC (Cri) 436 State of Rajasthan
vs. Teja Ram, Thomas, J speaking for the Bench observed that "over
insistence on witnesses having no relation with the victim will result in the
criminal justice system going awry". In para 20 at page 513, the court
observed that "in such an incident , 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". The learned Judge further clarified; "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."
53. Dalip Singh (supra) was extracted again in the judgment reported
at (2007) 1 SCC 699 : (2007) 1 SCC (Cri) 425 Salim Sahab vs State of M.P.
and in (2008) 15 SCC 65 : AIR 2009 SC 157 Bur Singh vs State of Punjab
(para 7).
It needs no elaboration therefore, that with regard to an occurrence
inside a dwelling house, relatives may be the only witnesses.
54. So far as the contention that the relatives in the present case would
be partisan and biased, because of their antagonism against Manju and
her doings, we find that in (2010) 3 SCC (Cri) 211 Balraje alias Trimbak
vs. State of Maharashtra (supra), on a similar objection the court in para
30 has stated as follows :-
"30. ..........it would not be proper to conclude that they
would shield the real culprit and rope in innocent persons.
The truth or otherwise of the evidence has to be weighed
pragmatically. The Court would be required to analyse the
evidence of related witnesses and those witnesses who are
inimically disposed towards the accused. But if after careful
analysis and scrutiny of their evidence, the version given by
the witnesses appears to be clear, cogent and credible, there
is no reason to discard the same. Conviction can be made on
the basis of such evidence."
55. This aspect was also considered by the Supreme Court in the
judgment reported at (2009) 3 SCC (Cri) 1254 Hari vs State of
Maharashtra. The court held that relationship by itself cannot be a
ground to discard their evidence. In this case, the evidence of the eye
witnesses who were sons and wife of the deceased was found consistent.
On the aspect of eye witnesses who was alleged to be interested and
inimically disposed towards the accused. The relevant portion of the
judgment is reproduced hereunder:-
"24. On the question of appreciating the evidence of
witnesses, who are related, this court in Dalip Singh vs.
State of Punjab, AIR 1953 SC 364 spoke very eloquently
through Vivian Bose, J. In that case the learned Judge clearly
laid down the law relating to appreciation of evidence by
relations with such lucidity that it deserves to be quoted:-
"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 there 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."
The principle laid down in the aforesaid passage has been
subsequently reiterated by this Court in Gulli Chand vs.
State of Rajasthan, (1974) 3 SCC 698. Beg, J., as His
Lordship then was, quoted the said passage in para 11 of the
said report.
25. The said principle was also followed by a Constitution
Bench of this Court in Masalti vs. State of U.P., AIR 1965 SC
202. The Constitution Bench speaking though
Gajendragadkar, C.J., approved the decision in 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 cautions in dealing with such evidence;
but the plea that such evidence should be rejected
because it is partisan cannot be accepted as correct."
56. The record of the case also shows that the testimony of the only
eye witness to the incident who is not related to the injured stands
corroborated by the statement of PW-1 Rizwan Khan (exhibit PW-1/A),
which was recorded by the police resulting in the registration of the FIR.
The learned Trial Judge also found that there was no material
contradiction or deviation in his testimony on oath in court from the
contents of the exhibit PW-1/A. Learned counsel for the appellants was
unable to point out any contradiction in his statements even before us.
The trial court has also found that all the witnesses were honest and
truthful and their testimonies stand corroborated not only by the
contents of exhibit (PW-1/A) but by the unshaken deposition of PW-17
Gaurav Gupta who was also residing in the area.
57. In the instant case, two of the related eye witnesses have suffered
injuries as well. The principles laid down in these judicial precedents
squarely apply to the present case. Therefore, the objection to the
testimony of the sons, widow and daughter of the deceased is of no legal
significance given the clear deposition by these witnesses as to the
manner in which the events unfolded themselves and the occurrence
which took place.
58. The objection on behalf of the appellants resting on relationship to
the deceased thus is untenable and hereby rejected.
Failure to explain injuries on accused person
59. Ms.Kamna Vohra, learned counsel for the appellants has urged
this court to disbelieve the prosecution also for the reason that Yadram
had suffered serious injuries on his head and that the prosecution had
withheld the MLC of Yadram deliberately and with mala fide intention.
60. It is also urged that in the light of the omission of the prosecution
to explain the injuries on accused Yad Ram, the case against Yad Ram
has failed. The prosecution deserves to be completely disbelieved. This
submission is vehemently opposed by Ms. Ritu Gauba, learned APP
who has submitted that in the instant case, the failure to explain the
injuries on the accused would be inconsequential.
We find that no plea of self-defence has been set up by any of the
appellants. It is also not the case of the appellants that they were beaten
by the other party.
61. On the contrary, the appellants have disputed their very presence
on the spot. An examination of the defence set up by the accused
persons would show that Yadram set up a plea that he was working in
the flower shop of DW-1 Dinesh Kumar and DW-3 Gulab on the fateful
night and that he had left their shop only in the midnight of 25th June,
2004 and was therefore not present at the alleged place of incident.
62. The accused persons denied all allegations made against them in
their statements under Section 313 of the CrPC and have stated that they
have been falsely implicated. This being the position, it would be for the
appellants to further suggest to the court and explain the circumstances
in which the injuries were received by Yadram and to satisfy it that such
injuries had resulted on his person during the occurrence in the
intervening night of 25th and 26th February, 2004.
63. It is also important to note that Yadram was not arrested at the
spot immediately after the occurrence but ran away from there. The
appellant, Yadram, has been arrested on 26th February, 2004, the day
following the occurrence.
64. We find that this issue was also considered by the Supreme Court
in (2009) 111 SCC 96 Hari vs. State of Maharashtra. Here also the
prosecution had failed to explain the injuries on the accused. The
Supreme Court held that there is no general or absolute principle that
non-explanation of an injury on an accused person shall in all cases
vitiate the prosecution case and that it would depend on the facts and
circumstances of this case. The prior adjudication in (1976) 4 SCC 394 :
1976 SCC (Cri) 671 Lakshmi Singh vs. State of Bihar and (1975) 2 SCC 7 :
1975 SCCD (Cri) 384 State of Gujarat vs Bai Fatima was reiterated by
the Supreme Court in Hari vs. State of Maharashtra (surpa).
65. We may usefully reproduce the following principles laid down by
the Supreme Court on t his aspect in para 17 of (1975) 2 SCC 7 : 1975 SCC
(Cri) 384 State of Gujarat vs Bai Fatima:-
"17. In a situation like this when the prosecution fails to
explain the injuries on the person of an accused,
depending on the facts of each case, any of the three
results may follow:
(1) That the accused had inflicted the injuries on the
members of the prosecution party in exercise of the right
of self- defence.
(2) It makes the prosecution version of the occurrence
doubtful and the charge against the accused cannot be
held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all."
66. In the instant case, the appellants had set up a plea of alibi which
has been disbelieved. The appellants also led evidence in support of this
plea before the trial court but failed to prove the same. Therefore, in
case the defence of the appellants was accepted, Yad Ram could not
have been injured in the incident as he has claimed that he was not
there. Nothing turns in the instant case on the failure of the prosecution
to prove the MLC of Yad Ram. It would be for Yad Ram to prove when
the injuries were received by him as they surface only after his arrest,
which was long after the incident.
67. Given the defence set up by Yadram, the challenge raised by him
on the failure of the police to prove his MLC on record or explain his
injuries is devoid of any legal merit.
Effect of acquittal of a co-accused
68. Ms. Kamna Vohra has also urged that Manju was a co-accused and
facing the same charge. In the face of her acquittal, the conviction
against the other persons cannot be sustained. It is submitted that the
case of the prosecution against the appellants is based on the same
evidence as was placed against Manju, such evidence having been
disbelieved qua Manju, it is contended cannot be therefore believed so
far as the appellants are concerned.
69. In this regard, in para 29 of Balraje alias Trimbak (supra) the court
held as follows :-
"29. Law is fairly well settled that even if acquittal is
recorded in respect of the co-accused on the ground
that there were exaggerations and embellishments, yet
conviction can be recorded if the evidence is found
cogent, credible and truthful in respect of another
accused."
70. The trial court has carefully analysed the evidence placed on
record so far as the allegations against Manju, who was a co-accused, is
concerned. It was found that PW-4 Ijaz-an injured eye-witness; PW-12
Kiran (daughter of the deceased) and PW-14 Smt.Kamrunisa, widow of
the deceased as well as PW-15 Imran, son of the deceased have deposed
on oath that it was the co-accused Manju who had called her four
brothers, Surinder @ Babloo, Rajiv @ Raju, Sanjeev @ Sonu, Birender @
Boya to the spot. As against their deposition, their brother PW-1 Rizwan
Khan also an eye witness made a statement (exhibit PW-1/A ), which
was the first statement in time, that it was the accused Yadram who had
called his four brothers-in-law to the spot and exhorted them against the
deceased Mohd. Rashid Khan. Other than this, there is nothing in the
testimony of PW-1, 4, 12 and 14 that Manju had exhorted her brothers to
kill the deceased Mohd. Rashid Khan. Only PW-15 Imran has made the
allegations in this regard against the accused Manju. PW-14
Smt.Kamrunisa has alleged that Manju had got hold of her daughter,
Kiran (PW-12), by her hair and thrown her on the ground, giving
beatings to her.
71. The learned trial judge has thus held that the prosecution had
failed to prove the requisite intention on the part of the accused Manju
to cause the death of the deceased Mohd. Rashid Khan as also of
inflicting of injuries upon the injured PW-1 and 4. The trial court also
held that the prosecution was unable to prove the case against Manju
beyond reasonable doubt.
In view of the above, Manju was acquitted of the charge for
commission of offences punishable under Section 302/307/34 IPC of
which she was charged. However, all the eye witnesses have
categorically named the appellants as present at the spot. Specific roles
in the incident are also assigned to them. Therefore, the acquittal of
Manju would by itself not impact the case against the other appellants.
The evidence against them has to be separately considered.
Abscondance
72. The learned trial court has also noticed the conduct of the accused
persons in not being found at the normal place of their residence
immediately after the incident. It was held that in case they were
innocent, there was no warrant for them to run away from their houses
for a long period of almost four months and having surrendered in the
instant case on 20th and 24th June, 2004 respectively or when they have
been arrested.
Whether the prosecution has established common intention (Section
34 of the IPC) to commit an offence of murder (Section 302 IPC)
73. It is now necessary to examine the primary contention of learned
counsel for the appellants. Ms.Vohra has urged that Yad Ram and
Babloo have been found guilty of commission of the offence under
Section 302/34 of the IPC and have been acquitted for offences under
Section 307/34 of the IPC while Sanjeev @ Sonu and Birender @ Boya
found guilty of commission of the offence punishable under Section
307/34 IPC with which they stand charged and acquitted for
commission of offences punishable under Section 302/34 of the IPC.
74. Ms.Kamna Vohra, learned counsel for the appellants has
vehemently contended that even if this Court was to accept the
correctness of the evidence in its totality, the prosecution had failed to
prove that the accused persons had the common intention of murdering
and causing death of Mohd. Rashid Khan. It is further specifically
submitted by Ms.Kamna Vohra, learned counsel that there is no
evidence at all of any common intention between Yadram and Babloo to
commit an offence under Section 302 of the IPC. Learned counsel urges
that the prosecution has in fact made allegations of common intention
against six persons.
75. On this, we find that this material aspect of the matter has
completely escaped attention of the learned Trial Judge and has not been
considered in the impugned judgment.
76. Ms. Kamna Vohra has also relied on the pronouncement of the
Supreme Court reported at AIR 2000 SC 1876 Masumsha Hasanasha
Musalman vs. State of Maharashtra; (2000) 10 SCC 307 Kunhayippu vs.
State of Kerala in which it was held that the accused cannot be said to
have had the necessary intention of causing murder of the deceased
while giving a particular blow though ultimately the blow had become
fatal. Ms. Vohra has also placed reliance on (1998) 9 SCC 497 Ram
Prakash Singh vs. State of Bihar and AIR 1994 SC 1060 Ranjitsinh
Chandrasinh Atodaria vs. State of Gujarat.
77. Ms. Vohra, learned counsel points out that even PW 1 - Rizwan
Khan states that at about 11.15 p.m., a drunken Yad Ram, who was
carrying an iron rod, came to the spot shouting abuses to his sister and
making false allegations against her. Hearing these abuses, they came
out and his father Mohd Rashid Khad asked Yad Ram as to why he was
abusing at this time of the night. Despite the admonition by his father,
Yad Ram continued with the same. Mohd Rashid Khan (who was
living on the first floor), came down from the first floor with his family.
As soon as Mohd Rashid Khan reached down, Yad Ram hit him on the
head with the iron rod. He then exhorted his four brothers-in-law that
"aaj mauka achcha hai, aaj saale ko khatam kar do." Babloo, Sonu, Rajiv and
Boya came carrying knives. While Yad Ram held Md. Rashid Khan
from the back and Babloo attacked him on the neck; Sonu allegedly
attacked Mohd Rizwan and his hand got injured; Rajiv and Boya
attacked Izaj while Manju who was standing there took his sister by her
hair and threw her on the ground. Mohd Rashed Khan started bleeding
from the injury on his neck and he fell over on the cycles which were
standing there. At that time, a lot of neighbours gathered there and
seeing the crowd, the accused persons ran away from there.
78. The pronouncement of the Supreme Court in Ranjitsinh (Supra) is
similar on facts to the instant case where three of the accused were
alleged to have caught hold of the deceased while the fourth accused is
stated to have inflicted a knife blow on the deceased. It was stated that
the whole incident took place because of a quarrel that preceded it. The
dispute was regarding a house which has been under the occupation of
the brothers sometime or the other. Under the circumstances the court
observed that it was difficult to hold that the accused intended to cause
that particular injury which was found to be sufficient in the ordinary
course of nature to cause death by the doctor. The court accordingly set
aside the conviction of the appellant under Section 302 IPC and the
sentence of imprisonment for life awarded thereunder. Instead, the
appellant was convicted under Section 304 Part II of the IPC and
sentenced to undergo ten years rigorous imprisonment.
79. Our attention has also been drawn to the Division Bench
pronouncement reported at 23 (1983) DLT 338 Paramjit Singh & Anr.
Vs. The State wherein A and B were charged with murder under Section
302. As per the prosecution case, B was alleged to have only exhorted A
"to teach lesson" to deceased. The injury was caused by A resulting in
the death of a person. The court considered the issue as to whether there
was any common intention and held that "teaching of lesson does not spell
out any intention to cause death or to kill. Teaching of lesson could be confined
only to causing of simple hurt. It was by chance that the appellants met the
deceased. There was, therefore no pre-arranged plan on their part. The mere fact
that one of the appellant caught hold of the deceased would not make him guilty
of murder, when he did not know that the other had a knife with him. He could
only be convicted of causing simple hurt under S.323." On the issue as to
whether the acts were done with the intention of causing death in paras
18 and 19, the following observations of the court may usefully be
adverted to in extenso and read as follows:-
"18. However, we have to see if there was any common
intention on the part of the appellants and whether the
provisions of Section 34 IPC are applicable or not. So
that there should be a common intention there must be
meeting of minds to commit a particular offence. The
common intention pre-supposes prior concert. There
should be some pre-arranged plan, even though the
said plan is formed hastily or all of a sudden. In the
present case, as it appears from the evidence of
prosecution, the intention of the appellants was to teach
a lesson to Hardev Singh and Anil on account of the
latter having indulged in sharp practice in gambling.
Teaching of lesson does not spell out any intention to
cause death or kill. Teaching of lesson could be
confined only to causing of simple hurt. It was by
chance that the appellants happened to meet Hardev
Singh. There was, therefore, no prearranged plan on
their part. Surinder Singh did catch hold of Hardev
Singh from behind but it cannot be said that he knew
that Paramjit Singh would give knife stabs. Paramjit
Singh was not carrying open knife. He took out the
knife from his pocket. Therefore, Surinder Singh could
not imagine that Paramjit Singh would take out the
knife. It was only one blow which was given. Had
repeated blows by knife been inflicted it could be said
that although Surinder Singh did not have any meeting
of mind with Paramjit Singh for causing injuries by
knife, yet plan or meeting of mind between him and
Paramjit Singh was formed at the spot and then there
could be existence of common intention. But there
could be no such formation of plan with single injury
only. Under these circumstances Surinder Singh is
guilty of causing simple hurt punishable under Section
323 read with Section 34 IPC.
19. The definition of 'murder' is given in Section 300
IPC. That definition, inter alia, says that culpable
homicide is murder if the act by which the death is
caused is done with the intention of causing death.
According to the learned Additional Sessions Judge,
Delhi there was an intention on the part of the
appellants to kill Hardev Singh. We have already held
that there is no indication of existence of such an
intention. Therefore, it is to be seen if any of the other
parts of definition of 'murder' can be applicable. Clause
'3rdly' of the said definition says that culpable homicide
is murder if the act by which the death is caused, is
done with the intention of causing bodily injury to any
person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause
death. In Virsa Singh v. The State of Punjab : 1958Cri LJ
818 the following was held by the Supreme Court while
interpreting clause '3rdly' of Section 300 IPC :
"To put it shortly, the prosecution must prove
the following facts before it can bring a case
under Section 300. "3rdly" ;
First, it must establish, quite objectively, that a
bodily injury is present;
Secondly, the nature of the injury must be
proved ; These are purely objective
investigations.
Thirdly, it must be proved that there was an
intention to inflict that particular bodily injury,
that is to say, that it was not accidental or
unintentional, or that some other kind of injury
was intended.
Once these three elements are proved to be
persent, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of
the type just described made up of the three
elements set out above is sufficient to cause
death in the ordinary course of nature. This part
of the enquiry is purely objective and inferential
and has nothing to do with the intention of the
offender.
Once these four elements are established by the
prosecution (and of course, the burden is on the
prosecution throughout) the offence is murder
under Section 300, 3rdly. It does not matter that
there was on intention to cause death. It does
not matter that there was on intention even to
cause an injury of a kind that is sufficient to
cause death in the ordinary course of nature not
that there is any real distinction between the
two)."
80. Learned counsel for the appellants has also placed reliance on the
pronouncement of the Supreme Court reported at 2006 (2) JCC 775
Rajpal & Ors. Vs. State of Haryana wherein it was observed that the
accused persons did not repeat the blows on the head of the deceased
which showed that there was no intention to commit murder. In this
case the Supreme Court changed the conviction of the appellant from
the conviction under Section 301/34 to 304 Part II. The pronouncement
deals at length with the distinction between "murder" and "culpable
homicide not amounting to murder".
81. On the same aspect, our attention has been drawn to the
pronouncement of the Supreme Court reported at (2006) 2 SCC (Crl.) 394
Sandhya Jadhav vs. State of Maharashtra. In this case the court
explained the conditions for applicability of section 300 Exception 4 of
the IPC. The court laid down the circumstances which are necessary to
be satisfied for invocation of the Exception 4 and held as follows :-
"8. For bringing in operation of Exception 4 to Section
300 IPC, it has to be established that the act was
committed without premeditation, in a sudden fight in
the heat of passion upon a sudden quarrel without the
offender having taken undue advantage and not
having acted in a cruel or unusual manner.
9. The Fourth Exception of Section 300, IPC covers acts
done in a sudden fight. The said exception deals with a
case of prosecution not covered by the first exception,
after which its place would have been more
appropriate. The exception is founded upon the same
principle, for in both there is absence of premeditation.
But, while in the case of Exception 1 there is total
deprivation of self-control, in case of Exception 4, there
is only that heat of passion which clouds men's sober
reasons and urges them to deeds which they would not
otherwise do. There is provocation in Exception 4 as in
Exception 1; but the injury done is not the direct
consequence of that provocation. In fact Exception 4
deals with cases in which notwithstanding that a blow
may have been struck, or some provocation given in
the origin of the dispute or in whatever way the
quarrel may have originated, yet the subsequent
conduct of both parties puts them in respect of guilt
upon equal footing. A 'sudden fight' implies mutual
provocation and blows on each side. The homicide
committed is then clearly not traceable to unilateral
provocation, nor in such cases could the whole blame
be placed on one side. For if it were so, the Exception
more appropriately applicable would be Exception 1.
There is no previous deliberation or determination to
fight. A fight suddenly takes place, for which both
parties are more or less to be blamed. It may be that
one of them starts it, but if the other had not
aggravated it by his own conduct it would not have
taken the serious turn it did. There is then mutual
provocation and aggravation, and it is difficult to
apportion the share of blame which attaches to each
fighter. The help of Exception 4 can be invoked if death
is caused (a) without premeditation, (b) in a sudden
fight; (c) without the offender's having taken undue
advantage or acted in a cruel or unusual manner; and
(d) the fight must have been with the person killed. To
bring a case within Exception 4 all the ingredients
mentioned in it must be found. It is to be noted that the
'fight' occurring in Exception 4 to Section 300, IPC is
not defined in the IPC. It takes two to make a fight.
Heat of passion requires that there must be no time for
the passions to cool down and in this case, the parties
have worked themselves into a fury on account of the
verbal altercation in the beginning. A fight is a combat
between two and more persons whether with or
without weapons. It is not possible to enunciate any
general rule as to what shall be deemed to be a sudden
quarrel. It is a question of fact and whether a quarrel is
sudden or not must necessarily depend upon the
proved facts of each case. For the application of
Exception 4, it is not sufficient to show that there was a
sudden quarrel and there was no premeditation. It
must further be shown that the offender has not taken
undue advantage or acted in cruel or unusual manner.
The expression 'undue advantage' as used in the
provision means 'unfair advantage'."
82. On the same aspect learned counsel has placed the pronouncement
of the Division Bench of this court reported at 123 (2005) DLT 487
Subhash Kumar vs. State of NCT of Delhi before this court.
83. We may caution that the plea that because only a single blow was
given has to lead to only one conclusion that the case falls under the
Exception 4 to Section 300, is not an absolute proposition of law and
must be tested in the facts and circumstances of each case.
84. On the issue of whether there existed common intention to do the
alleged acts in the instant case, learned counsel for the appellants has
relied on 89 (2001) DLT 237 Raj Kumar vs. State wherein the overt act
attributed to appellant was that he caught hold of the arms of Tara
Chand and Sunil, the deceased. It was alleged that Dharamvir stabbed
Sunil and there was nothing to show that the appellant had known that
Dharamvir was carrying a knife. The exhortation was only to teach him
a lesson and not to kill him. In this background, it was held that the
conviction of the appellant under Section 302/34 IPC could not be
sustained.
85. It is pointed out that the occurrence, as portrayed by the
prosecution, was a sudden occurrence on the spur of the moment
without any pre-meditation and without any common intention. It is
urged that Yadram did not even know whether any of his brothers-in-
law would come, or, that any of them would be, armed. He had no
knowledge that they were bringing knives with them. It is urged that
the brothers-in-law came from a different direction. There is no
evidence that other than Yad Ram, the appellants had knowledge of the
presence of the deceased at that place. The post mortem report shows
that a single blow to the deceased Mohd. Rashid Khan resulted in his
death. The prosecution has alleged that the appellant Babloo inflicted
this fatal injury.
86. Learned counsel contends that the prosecution witnesses have
attributed exhortation to Manju; that as per the exhortation attributed to
her, she only called out to her brothers and did not say that they should
kill the appellant. Learned counsel points out that as against this the
star witness of the prosecution PW 1 - Rizwan Khan has deposed that it
was Yadram who has given the exhortation to his brothers-in-law to kill
Mohd. Rashid Khan, that there was no exhortation to any particular
person and that the exhortation did not refer to Babloo in particular to
kill the deceased. The four brothers (including Babloo) came from the
other house and did not even know who was the object of the
exhortation. In this background, learned counsel has urged that there
was no evidence at all to show that either Yadram or Babloo or any of
the other appellants had intended to inflict a particular injury which
resulted in his death or to kill Mohd. Rashid Khan. It is urged by
learned counsel that there is no evidence at all that the appellants have
acted in furtherance of a common intention of all of them.
87. So far as Yad Ram is concerned, Ms. Kamna Vohra, learned
counsel for the appellant has submitted that the role ascribed to him was
exhortation of the co-accused and holding the deceased. In the
pronouncement of the Supreme Court 122 (2005) DLT 399 Laxman vs.
State, it is urged that other than using the exhorting words "maar saale
ko" and catching the deceased from behind, no other role was ascribed in
the evidence against Shyam while the fatal blow was alleged to have
been given by Laxman.
88. Learned counsel has drawn our attention to a decision dated 15th
January, 2010 of the Division Bench of this court in Crl.App.No.304/2005
Chhote Lal vs. State and Crl.App.No.578/2005 Bhurey Lal vs. State. The
court observed that the appellants had a chance to inflict much more
than one injury but were satisfied by causing a single injury. Placing
reliance on the pronouncement of the Supreme Court reported at 1984
SC 759 Tholan vs. State of Tamil Nadu and 1982 SC 1466 Gurmail Singh
& Ors vs. State of Punjab, it was observed that there was only a single
injury and the incident happened on the spur of the moment. In this
background, the conviction under Section 302 IPC was altered to one
under Section 304 Part II of the Indian Penal Code.
89. It is asserted by Ms. Vohra that even the exhortation attributed to
Yad Ram does not exhort to kill but refers only to "maar" which when
translated reads "beat". From the facts on record in the present case as
well it could not be said that there was prior meeting of mind, pre-
concert and pre-determination to murder the deceased.
90. In this regard, reference can also be made to the pronouncement of
the Supreme Court reported at (1998) 7 SCC 216 Matadin & Anr. Vs.
State of Maharashtra wherein also the allegation that Matadin had
exhorted his fellows by saying "maaro saale ko" whereafter other accused
stabbed the deceased resulting in his death. Here conviction of Matadin
under Section 302/34 IPC was varied to a conviction under Section
324/34 of the IPC and his sentence was reduced to imprisonment for the
period already undergone by him.
91. In the case reported at 1999 SCC (Cri) 74, Ajay Sharma vs. State of
Rajasthan, the expression used by one of the accused was „maaro‟. On
the said facts, the Supreme Court held that by saying „maaro‟, it cannot
be said that common intention to kill the deceased and since the
appellant only said „maaro‟ which did not mean to kill, therefore he
ought not to have been convicted under section 302 read with section 34
IPC and was accordingly convicted under section 324 read with Section
34 IPC and sentenced to the period already undergone.
92. Yad Ram and Babloo have been convicted for commission of
offence punishable under Section 302/34 IPC. Before examining the
factual matrix which has been established by the prosecution before us,
the critical question which has to be answered is as to whether the
conviction of these appellants under Section 302 of the Indian Penal
Code is contrary to law or whether they could, at the most, have been
held guilty for culpable homicide not amounting to murder. In this
regard, we may usefully refer to the authoritative pronouncement of the
Supreme Court in the judgment reported at (2005) 9 SCC 71, Shanker
Narayan Bhadolkar vs. State of Maharashtra wherein the binding
principles which would guide consideration on this issue have been
authoritatively laid down. The discussion and the findings of the
Supreme Court deserve to be considered in extenso and reads as
follows:-
"24. The academic distinction between "murder" and
"culpable homicide not amounting to murder" has
always vexed the Courts. The confusion is caused, if
Courts losing sight of the true scope and meaning of
the terms used by the legislature in these sections,
allow themselves to be drawn into minute abstractions.
The safest way of approach to the interpretation and
application of these provisions seems to be to keep in
focus the keywords used in the various clauses of
Sections 299 and 300. The following comparative table
will be helpful in appreciating the points of distinction
between the two offences.
25. Clause (b) of Section 299 corresponds with Clause
(2) and (3) of Section 300. The distinguishing feature of
the mens rea requisite under Clause (2) is the
knowledge possessed by the offender regarding the
particular victim being in such a peculiar condition or
state of health that the internal harm caused to him is
likely to be fatal, notwithstanding the fact that such
harm would not in the ordinary way of nature be
sufficient to cause death of a person in normal health
or condition. It is noteworthy that the "intention to
cause death" is not an essential requirement of Clause
(2). Only the intention of causing the bodily injury
coupled with the offender's knowledge of the
likelihood of such injury causing the death of the
particular victim, is sufficient to bring the killing
within the ambit of this clause. This aspect of Clause
(2) is borne out by illustration (b) appended to
Section 300.
26. Clause (b) of Section 299 does not postulate any
such knowledge on the part of the offender. Instances
of cases falling under Clause (2) of Section 300 can be
where the assailant causes death by a first blow
intentionally given knowing that the victim is suffering
from an enlarged liver, or enlarged spleen or diseased
heart and such blow is likely to cause death of that
particular person as a result of the rupture of the liver,
or spleen or the failure of the heart, as the case may be.
If the assailant had no such knowledge about the
disease or special frailty of the victim, nor an intention
to cause death or bodily injury sufficient in the
ordinary course of nature to cause death, the offence
will not be murder, even if the injury which caused the
death, was intentionally given. In Clause (3) of
Section 300, instead of the words "likely to cause death"
occurring in the corresponding Clause (b) of
Section 299, the words "sufficient in the ordinary
course of nature" have been used. Obviously, the
distinction lies between a bodily injury likely to cause
death and a bodily injury sufficient in the ordinary
course of nature to cause death. The distinction is fine
but real and if overlooked, may result in miscarriage of
justice. The difference between Clause (b) of
Section 299 and Clause (3) of Section 300 is one of the
degrees of probability of death resulting from the
intended bodily injury. To put it more broadly, it is the
degree of probability of death which determines
whether a culpable homicide is of the gravest, medium
or the lowest degree. The word 'likely' in Clause (b) of
Section 299 conveys the sense of probable as
distinguished from a mere possibility. The words
"bodily injury.......... sufficient in the ordinary course of
nature to cause death" mean that death will be the
"most probable" result of the injury, having regard to
the ordinary course of nature.
27. For cases to fall within Clause (3), it is not necessary
that the offender intended to cause death, so long as
the death ensues from the intentional bodily injury or
injuries sufficient to cause death in the ordinary course
of nature. Rajwant and Anr. v. State of Kerala, AIR
1966 SC 1874 is an apt illustration of this point."
93. The Supreme Court thereafter discussed the principles laid down
by Vivian Bose, J. in the well known prior pronouncement reported at
1958 SC 465, Virsa Singh vs. State of Punjab in para 29 thus:-
29. The ingredients of clause "Thirdly" of Section 300,
IPC were brought out by the illustrious Judge in his
terse language as follows:
"12. To put it shortly, the prosecution must prove
the following facts before it can bring a case
under Section 300, "thirdly".
First, it must establish, quite objectively, that a
bodily injury is present.
Secondly, the nature of the injury must be
proved. These are purely objective investigations.
Thirdly, it must be proved that there was an
intention to inflict that particular bodily injury,
that is to say that it was not accidental or
unintentional, of that some other kind of injury
was intended. Once these three elements are
proved to be present, the enquiry proceeds
further and,
Fourthly, it must be proved that the injury of the
type just described made up of the three
elements set out above is sufficient to cause death
in the ordinary course of nature. This part of the
enquiry is purely objective and inferential and
has nothing to do with the intention of the
offender."
94. In para 30, the Supreme Court has also reiterated the explanation
of Vivian Bose, J. in para 16 of Virsa Singh (Supra) in the following
terms:-
"30. The learned Judge explained the third ingredient
in the following words (at page 468):
"The question is not whether the prisoner
intended to inflict a serious injury or a trivial one
but whether he intended to inflict the injury that
is proved to be present. If he can show that he
did not, or if the totality of the circumstances
justify such an inference, then of course, the
intent that the section requires is not proved. But
if there is nothing beyond the injury and the fact
that the appellant inflicted it, the only possible
inference is that he intended to inflict it. Whether
he knew of its seriousness or intended serious
consequences, is neither here or there. The
question, so far as the intention is concerned, is
not whether he intended to kill, or to inflict an
injury of a particular degree of seriousness but
whether he intended to inflict the injury in
question and once the existence of the injury is
proved the intention to cause it will be presumed
unless the evidence or the circumstances warrant
an opposite conclusion."
95. In para 31, the Supreme Court finally thereafter culled out the
following applicable principles:-
"31. These observations of Vivian Bose, J. have become
locus classicus. The test laid down by Virsa
Singh's case (supra) for the applicability of clause
"Thirdly" is now ingrained in our legal system and has
become part of the rule of law. Under clause thirdly of
Section 300 IPC, culpable homicide is murder, if both
the following conditions are satisfied: i.e. (a) that the
act which causes death is done with the intention of
causing death or is done with the intention of causing a
bodily injury; and (b) that the injury intended to be
inflicted is sufficient in the ordinary course of nature to
cause death. It must be proved that there was an
intention to inflict that particular bodily injury which,
in the ordinary course of nature, was sufficient to cause
death, viz., that the injury found to be present was the
injury that was intended to be inflicted."
96. The above principles have been reiterated by the Supreme Court in
the subsequent pronouncement reported at (2007)9SCC129,Abbas Ali vs.
State of Rajasthan.
97. In the instant case, it is the case of the prosecution that it was Yad
Ram alone who was abusing the daughter of the deceased and that the
other appellants were called from their residence. There remains an area
of doubt even as to who exhorted or whether there was exhortation.
While Manju was charged with exhortation, she has been acquitted of
charge. There remains the testimony of PW 1 who attributes the
exhortation to Yad Ram. As noted above, the exhortation was made
generally and not specifically to Babloo. The other appellants could not
have known as to who was the object of the exhortation. The case of the
prosecution itself shows that there was no pre-meditation in the
incident. Yad Ram and the other appellants did not come together but
came from different directions. There is thus no evidence that anybody
exhorted any person to kill the deceased. There is no evidence that
Babloo was exhorted to kill Mohd. Rashid Khan.
98. The record placed before this court would show that there is no
evidence to show that the accused persons harboured intention, let alone
common intention to cause such injury to Mohd. Rashid Khan which
would result in his death. There is also no evidence that the appellants
acted in furtherance of such intention. There is also nothing to show
that Yad Ram and Babloo had a common intention to cause the death of
the deceased. When Yad Ram caught the deceased he would not have
known as to whether anyone would attack Mohd Rashid Khan or where
the blow would be given. It is, therefore, not possible to hold that the
prosecution has satisfied the requirement of Section 34 of the Indian
Penal Code against the appellants.
99. It is the case of the prosecution that Yad Ram held the deceased
and that Babloo had inflicted the single blow which resulted in the death
of Mohd Rashid Khan.
100. A single blow, not aimed at a particular part of body, has resulted
in the death of Mohd Rashid Khan. There is no evidence that Babloo or
any of the appellants were aware that Mohd. Rashid Khan is to be
finished or killed. It is also in evidence that there were several persons
from both sides and there was a squabble in a small place. The
prosecution has led no evidence that Babloo intended to inflict the
particular injury and that the same was not accidental or unintentional.
There is thus no evidence of intention of any person to kill the deceased.
101. In the light of the judicial pronouncements noted above, we are
therefore of the view that in the present case, in order to bring home the
guilt for commission of an offence of murder, the prosecution was
required to establish beyond reasonable doubt all the conditions of
Section 300 of the IPC. The prosecution has established that the
deceased Mohd. Rizwan Khan had a bodily injury (Section 300 of the
IPC „firstly‟); that the injury was a stab wound caused by a sharp edged
weapon („Section 300 of the IPC secondly‟). However, the prosecution
could not establish that there was an intention to inflict that particular
injury and that it was not accidental or unintentional, or even that some
other kind of injury was intended (i.e, the requirement of Section 300 of
the IPC „thirdly‟). It is only if all three elements stood proved that the
injury would proceed to the last clause of Section 300 of the IPC. (Ref.
1958 CrLJ 818, Virsa Singh vs. State of Punjab). The case therefore falls
within Exception 4 to Section 300 of the IPC.
102. We, therefore, find it is not possible to sustain the conviction of
Yad Ram and Babloo under Section 302 of the Indian Penal Code.
103. It remains, however, an established fact that the appellants action
resulted in injuries as discussed above. The question is whether these
appellants could be punished for an offence with which they were not
charged. In paras 27 and 28 Balaraje alias Trimbak vs. State of
Maharashtra (supra) and (2006) 2 SCC 450 : 2006 (1) SCC (Cri) 661
Radha Mohan Singh vs. State of U.P., the court had occasion to consider
the effect of an omission to frame or error in the charge framed against
the accused persons. It has been held that an accused can be convicted
for an offence for which no charge was framed unless the Court is of the
opinion that the failure of justice would in fact occasion.
104. A scrutiny of the examination of Yad Ram and Babloo under
section 313 of the CrPC would show that they had been made aware of
the basic ingredients of the offence of culpable homicide not amount to
murder and given an opportunity to explain the incriminating evidence
which had been recorded against him. The facts sought to be
established by the prosecution against them were also put to them.
In this background the appellants could be convicted for
commission of such offence under the IPC, ingredients whereof he had
been put to notice.
105. In the present case, there is unimpeachable evidence that Yad Ram
and Babloo were responsible for causing the death of Mohd. Rizwan
Khan. They are, therefore, guilty of commission of the offence of
culpable homicide not amounting to murder.
106. We also find that in the instant case, the trial court has rightly held
that the failure to recover or seize the weapons of offence is of no
consequence inasmuch as the case of the prosecution rests on the
testimony of eye-witnesses.
107. So far as the appellant [email protected] Raju is concerned, as noted above by
the judgment dated 27th March, 2012, on the same evidence, he has been
held guilty for commission of the offence under Section 320/34 of the
IPC. He has been acquitted of the charge framed against him under
Section 302/34 & 307/34 of the IPC.
108. In the light of the above discussion, we also find that there is no
evidence that appellants Sanjeev @ Sonu and Rajiv @ Raju were at all
involved in the attack on Yad Ram. However, they are alleged to have
attacked PW1 Mohd Rizwan. Sanjeev @ Sonu resulting in recording of
MLC Exhibit PW7/A wherein the doctor has opined that his injuries
were simple in nature and inflicted by a blunt weapon. Ijaz is alleged to
have been injured similarly by Birender @ Boya. These three appellants
were armed with knives.
109. The above narration would show that there is also no evidence at
all that Sanjeev @ Sonu, Birender @ Boya or Rajiv @ Raju acted in
furtherance of a common intention.
110. We may also examine the prosecution‟s case so far as Sanjeev @
Sonu, Birender @ Boya and Rajiv @ Raju is concerned. As per the
medical examination, the injuries of Ijaz and Mohd. Rizwan have been
found to be simple in nature and inflicted by blunt force. Again there is
no evidence at all that the injuries were the result of pre-meditation or
planning. The prosecution has not led any evidence about any
circumstances on record which would even suggest that the appellants
acted with intentions or had knowledge that any act on their part could
cause death.
In this background the conviction of Sanjeev @ Sonu and Birender
@ Boya for commission of offences punishable under Section 307/34 IPC
is not sustainable.
111. We find that all incriminating circumstances in the evidence
against them have been put to them and they have been given
opportunity under Section 313 of the Cr.P.C. to explain the same. Given
the settled legal position, they can thus be convicted for commission of
such offences as are disclosed in the evidence on record. We are
satisfied that the prosecution has established commission of offences
under Section 324 of the Indian Penal Code.
112. We therefore hold that the conviction of Sanjeev @ Sonu, Birender
@ Boya for commission of an offence under Section 307/34 of the Indian
Penal Code are not sustainable and is hereby set aside and quashed.
They are held guilty for commission of the offence under Section 324 of
the Indian Penal Code and each of them is held guilty for commission of
offences under Section 324 of the IPC.
The conviction of [email protected] for the commission of offence under
Section 324 of the IPC is unassailable.
113. As discussed above, there is also no evidence of common intention
being nursed by Rajiv @ Raju. His conviction for commission of offence
punishable under Section 34 of the Indian Penal Code is therefore
unsustainable. However there is sufficient evidence to support his
conviction for commission of offences punishable under Section 324 of
the Indian Penal Code.
114. As a result of the above, we are required to modify the judgment
dated 28th May, 2010 on conviction and the order of sentence dated 31st
May, 2010 imposed upon the appellants in Crl.Appeal Nos.897/2010 &
900/2010 which shall stand substituted by the following:-
(i) The appellants Yad Ram and Babloo in Crl.Appeal No.900/2010
are held guilty for commission of offences under Section 299
read with Section 304 of the Indian Penal Code and are
sentenced to rigorous imprisonment for a term of ten years and
fine for a sum of Rs.5,000/- each. In default of payment of fine,
these appellants shall undergo further simple imprisonment of
six months.
(ii) The appellants Sanjeev @ Sonu and Birender @ Boya in
Crl.Appeal No.897/2010 are convicted for commission of an
offence under Section 324 of the Indian Penal Code and
sentenced to rigorous imprisonment of two years each and fine
of Rs.2,000/- each. In default of payment of fine, these
appellants shall undergo further simple imprisonment of two
months.
115. We are further required to modify the judgment dated 27th
March, 2012 finding Rajiv @ Raju guilty of commission of an offence
under Section 324/34 IPC. The appellant Rajiv @ Raju shall stand
convicted for commission of an offence under Section 324 of the
Indian Penal Code.
116. The challenge to the order of sentence dated 29th March,
2012 by Rajiv @ Raju is hereby rejected.
117. In view of the disposal of Crl.Appeal No.487/2012,
Crl.Misc.(Bail) No.822/2012 & Crl.M.A. No.5241/2012 do not survive
for adjudication. These applications are disposed of in the above
terms.
(GITA MITTAL)
JUD GE
(V.K. SHALI)
JUDGE
MAY 24th , 2013
aa
