Delhi High Court
Vinod Kumar & Anr. vs State & Anr. on 1 November, 2013
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 25.10.2013
Judgment delivered on :01.11.2013
+ CRL.A. 959/2010
VINOD KUMAR & ANR ..... Appellants
Through: Mr. Mukesh Sharma and
Ms.Chaitanya Siddharth,
Advocates for Appellant No. 1.
Mr. Sudhir Nagar and Mr. Mohit
Singh, Advs for appellant No. 2.
versus
STATE & ANR ..... Respondents
Through: Ms. Richa Kapoor, APP for the
State.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 The two appellants Vinod Kumar and Joginder are aggrieved by
the impugned judgment dated 05.06.2010 vide which they had been
convicted for an offence under Sections 302/201/34 of the IPC and each
of them had been sentenced to undergo imprisonment for life as also to
pay a fine of Rs.50,000/- for the offence under Section 302 of the IPC
and in default of payment of fine to further undergo SI for a period of
one year. For the offence under Section 201 of the IPC each of the two
convicts had been sentenced to undergo RI for a period of four years and
to pay a fine of Rs.5,000/- each and in default of payment of fine to
further undergo SI for a period of one month. The third convict Sanjay
had been convicted for the offence under Section 201 of the IPC and he
already having undergone the sentence imposed upon him, he has not
assailed his conviction.
2 Version of the prosecution is that on 26.10.2004, DD No. 2
(Ex.PW-4/A) was received in the police post DDA Flats, Police Station
Jahangir Puri wherein it was reported that an accident had occurred at
the „T‟ point, Jahangir Puri. ASI Kishanjeet (PW-11) reached the spot.
A motor-cycle bearing No DL-8SV-1285 and a blue coloured shirt was
found lying there. The injured had already been removed to the BJRM
Hospital. The MLC of the injured was collected. He was a boy aged
between 20-22 years and had been brought dead to the hospital. Cut
injuries were found on his body. Information was transmitted to the
Police Station Jahangir Puri.
3 The dickey of the motor-cycle contained papers which revealed
that the motor-cycle belonged to one Bhim Singh (PW-9). The house of
Bhim Singh at E-9, Prashant Vihar was located. Bhim Singh identified
the motor-cycle to be that of his son who had left the house on this
motor-cycle. Bhim Singh thereafter identified the dead body as that of
his son. FIR was accordingly registered under Section 302 of the IPC.
4 Statement of Bhim Singh (PW-9) was recorded. As per his
version, there was a dispute qua their house E-9, Prashant Vihar where
he was residing on a portion of the first and second floor; his brother
Rajinder was residing on another portion of the said floor and their elder
brother Attar Singh was residing on the ground floor. This house was
owned by their mother Ramo Devi who has since expired. On
25.10.2004, a quarrel had taken place between his two brothers Rajender
and Attar Singh; Rajender had received injuries; on hearing the incident
PW-9 along with his son Abhishek had gone down; when Abhishek
tried to intervene, accused Joginder and Vinod Kumar who had also
reached there on their motor-cycle started abusing Abhishek. Both
Joginder and Vinod threatened Abhishek that they will settle the dispute
with him. Further version of PW-9 being that when Abhishek was going
to the hospital on his motor-cycle to visit his uncle Rajender, the
accused persons followed him. In the morning at about 02:30-03:00
AM, the police had come to his house wherein he was informed that a
motor-cycle was lying at the „T‟ point of Jahangir Puri; on PW-9
reaching the spot he identified the motor-cycle to be that of his son; he
was taken to the BJRM Hospital where he thereafter identified the dead-
body of his son Abhishek.
5 On this statement of PW-9 (Ex.PW-9/A), rukka was taken at
05:00 AM in the morning of 26.10.2004 and the FIR under Section 302
of the IPC was registered against the accused persons. Accused persons
were arrested vide memos Ex.PW-21/H, Ex.PW-9/X and Ex.PW-9/R.
6 Accused Vinod was arrested at 05:00 PM on the evening of
26.10.2004. Pursuant to the disclosure statements made by him he got
recovered a kitchen knife the alleged weapon of offence from a
construction park near the APMC dispensary as also a blood stained
pant which was lying in an iron trunk; the same were taken into
possession vide memo Ex.PW-9/H & Ex.PW-9/J. He had also pointed
out the place from where the motor-cycle (allegedly used by the accused
persons) was recovered. This was vide memo Ex.PW-9/K.
7 On 27.10.2004, the house of accused Sanjay was raided at Sarai
Pepal Thala where accused Sanjay was arrested. His disclosure
statement Ex.PW-9/M was recorded. He got recovered a knife/dagger
which was dug out from under the soil near the sewer which was the
second weapon of offence and was taken into possession vide memo
Ex.PW-9/P. Sanjay also got recovered a blood stained shirt which was
lying under the bed Ex.PW-9/Q alleged to be the shirt of Joginder.
8 On 31.10.2004 at the pointing out of PW-9 accused Joginder was
arrested. His disclosure statement Ex.PW-9/S was recorded. Pursuant to
his disclosure statement, he got recovered a blood stained chocolate
coloured pant and a shirt belonging to the co-accused Sanjay having
blood stains on the collar of the shirt; the same was taken into
possession vide memo Ex.PW-9/U.
9 Rajender Mann (PW-10) the injured witness has also corroborated
this version of PW-9 qua the incident of 25.04.2010 wherein he had
received grievous injuries. He reiterated the version of PW-9 that
accused Joginder and Vinod had threatened Abhishek and Bhim Singh
"dekh lenge kaam tamam kar denge" when Abhishek had tried to
intervene to save him in the quarrel between Rajinder and the family of
Attar Singh.
10 Ravinder Kumar (PW-15) was a witness to the recovery of the
knife which had been recovered at the instance of accused Sanjay. He
had however not supported the version of the prosecution and had been
declared hostile.
11 The medical evidence adduced by the prosecution was the MLC
of the victim which had been proved Ex.PW-1/A showing that the
victim had been brought in a dead condition to the hospital.
12 The post-mortem on the victim was conducted by Dr. L.C. Gupta
(PW-6). The following injuries were noted upon his person:-
1. Two incised wounds of elptical safe were present at back of right flank.
2. One incised wound present at left side back of spine.
3. Two incised wounds at front of top of right shoulder.
4. One incised wound at right middle finger.
5. One incised wound at lateral aspect of left arm.
6. Two stabbed wounds at left arm.
7. One incised wound at the left side face which extending to tip of chin and
fractured the mandible and teeth which were missing from their shockets.
8. Incised wound left side face.
9. Incised stabbed wound chest cavity deep at right side fourth intercostals
space.
10. One incised wound at left side chest lower part.
11. Abraided bruise at left shoulder radish.
12. Imprint abrasion at left side upper chest having size 12x2 cm.
13 Cause of death was shock resulting from internal hemorrhage
consequent to ante-mortem injury to right lung which was sufficient to
cause death in ordinary course of nature and mode of death was
homicide.
14 The opinion on the two weapons of offence Ex PW-6/A was also
given by the said doctor; opinion being to the effect that the injuries on
the person of the deceased could have been caused by the said weapons.
15 Initial investigation was carried out by ASI Kishan Jeet (PW-11)
who along with HC Ramesh Kumar (PW-14) had reached the spot. This
was pursuant to DD No. 2 received through constable Suresh Malik
(PW-4). Inspector Satpal Yadav (PW-21) was the Investigating Officer.
He was joined by HC Rajvir Singh (PW-12).
16 Statements of the accused persons under Section 313 of the Cr.PC
were recorded. In their statements, all the accused persons pleaded
innocence. They have stated that they have been falsely implicated in
the present case.
17 Two witnesses were led in defence by accused Vinod. DW-1 and
DW-2 have both set up a defence that accused Vinod was working as a
driver in the bus owned by DW-1 and on the fateful day he was on duty;
he had been picked up by the police in the early hours of 26.10.2004
from his house and has been falsely implicated. This defence however
did not find favour with the Court.
18 On the basis of the aforenoted evidence collected by the
prosecution, the accused persons had been convicted for the offences as
noted hereinabove.
19 Arguments had been addressed at length by the learned counsel
for both the appellants.
20 On behalf of accused Vinod, arguments had been addressed by
the counsel Mr. Mukesh Sharma. Besides oral submissions, written
arguments had also been filed. It is pointed out that this is admittedly a
case of circumstantial evidence; there is no eye-witness account; unless
and until all the links in the chain stand complete, the conviction of the
appellant cannot be founded. Submission being that the version of PW-9
has to be read with great circumspection and caution as he was an
interested witness being the father of the victim. His version is not only
exaggerated but is far from the truth. It is pointed out that Guddu, the
prime witness i.e. the person who had first removed the injured to the
BJRM hospital has not been examined; in fact no effort has been made
by the prosecution even to trace him. Further submission being that the
recovery of the kitchen knife (Ex.P-8) which had been sought to be
foisted on the appellant is clearly doubtful as the sketch of the knife
(Ex.PW-9/L) as also its seizure memo Ex. (PW-9/H) show that the knife
was blood stained but at the time when the FSL had examined it, it had
opined that there was no blood found on the knife. This creates a doubt
on the aforenoted recovery; no credence can be placed upon such a
recovery; PW-15 who was a witness to this recovery has also turned
hostile. Further submission being that the testimonies of DW-1 and DW-
2 who had adduced evidence in defence had clearly stated that accused
Vinod was working as a driver with DW-1 and even on the fateful day
he was on duty; his duty hours were between 05:30 PM to midnight;
DW-2 has reiterated the version of DW-1 that the accused was arrested
from his house at 06:00 AM on 26.01.2004. Testimonies of these
witnesses were unduly ignored by the trial Judge. In the alternative it
has been submitted that all cases of death do not qualify as a „murder‟
and even presuming that death of the victim had occurred at the hands of
the appellants, this case is not covered under Section 302 of the IPC but
at best can be covered under Section 304-II of the IPC and to support
this submission, reliance has been placed upon Explanation IV of
Section 300. Reliance has also been placed upon the judgments reported
as Jagriti Devi Vs. State of H.P. 2009 (14) SCC 779 and Shakti Dev Vs.
State of Rajasthan 2007 (15) SCC 68.
21 On behalf of the second appellant Joginder apart from oral
submissions, written argument had also been filed by counsel Mr.
Sudhir Nagar. Arguments are by and large on the same account.
Submission being that the recovery of the shirt purported to have been
got recovered by co-accused Vinod from the house of third accused
Sanjay cannot be read against the present appellant for two reasons;
firstly this recovery was effected pursuant to the disclosure statement
made by another co-accused and secondly for the reason that there was
no evidence brought forward by the prosecution to establish that this
shirt which was recovered from the house of Sanjay in fact belonged to
Joginder; no witness of the prosecution has adduced evidence to the said
effect. There is also no evidence to establish that the shirt button which
was seized from the spot (vide memo Ex.PW-9E) was in any manner
connected with the shirt; this seizure is also doubtful for the reason that
the versions of PW-9, PW-11 and PW-21 on this point are clearly
contradictory; whereas PW-9 has deposed that the button was recovered
from under the rear wheel of the motor-cycle; PW-11 has deposed that it
was recovered under the tyre and the third witness has deposed that
when he revolved the handle of the motor-cycle, one button was found
implying thereby that it was recovered from under the front tyre. These
inherent contradictions not being reconciled, no reliance can be placed
upon such a version set up by the prosecution. Recovery is clearly
doubtful. Further submission in this context being that the recovery
memos qua all the other exhibits which were recovered from the spot are
joint recoveries but only the button had been seized vide single recovery
memo which clearly evidences that this was an afterthought
manipulation and a concocted version set up by the prosecution. To
support his submission, learned counsel for the accused Joginder has
placed reliance upon a judgment reported as Aghnoo Nagesia Vs. State
of Bihar (1966) 1 SCR 134; submission being that only so much of a
confession which leads to the discovery of a fact can be read as evidence
under the provisions of Section 27 of the Evidence Act; otherwise a
confession is liable to be discarded in toto. Reliance has also been
placed upon Kamlesh Singh Vs. State Manu/DE/2397/2013 to support a
submission that where in similar circumstance a blood stained shirt and
axe had been recovered pursuant to a disclosure statement of the
accused and the blood group not having been identified, no reliance was
placed on such a recovery. Submission being reiterated that the
appellant can in no manner be connected with the crime; he is entitled to
a benefit of doubt and a consequent acquittal. Further submission being
that testimonies of PW-9 & PW-10 have been relied upon by the trial
Court as a "last seen evidence" which is a misnomer as these testimonies
do not fall within the scope of „last seen‟. To support this submission
reliance has been placed upon Pradeep @ Sanjay & Others Vs. State
2011 (2) Crimes 499; it is pointed out that in a similar circumstance
where accused persons had followed a red line bus in which the
deceased was travelling on their scooter, the Court had noted that this
would not qualify as a "last seen". On all counts, both the appellants are
entitled to a benefit of doubt and a consequent acquittal.
22 Arguments had been refuted by the learned Public Prosecutor for
the State. It is submitted that the impugned judgment suffers from no
infirmity. Submission being that all the links in the chain of
circumstantial evidence stand complete. The version of PW-9 and PW-
10 clearly show that both the appellants were nursing a vehement
revenge against Abhishek for having intervened in the quarrel which had
taken place just minutes before between their mother and other brothers
on the one hand and their uncle Rajender on the other hand. The incident
had also been documented in two cross FIRs Ex.PW-17/A and Ex. PW-
17/B are undisputed documents. Their testimonies qualify in the
category of "last seen". Motive of the crime was to seek revenge against
Abhishek for the aforenoted act is also evident as also the fact that the
parties were litigating in Court over this property i.e. E-9, Prashant
Vihar. The recoveries which were the weapon of offence as also blood
stained motorcycle which was used in the crime and which was
recovered at the pointing out of the accused Vinod clinched the matter;
submission being that the accused persons can in no manner escape their
fate. On the issue of recovery which has been vehemently argued by
both the learned counsel for the appellants, submission of the learned
public prosecutor is that any information given by the accused in his
disclosure statement which leads to the discovery of a fact can be read
and is an admissible piece of evidence under Section 27 of the Evidence
Act; this is dehors the fact that the said accused has not specifically
stated that he could get the aforenoted recovery effected. To support
this submission, learned public prosecutor has placed reliance upon
judgment in the case of Antulay 30 Cr. L. J 659 as also another judgment
of the full Bench of Allahabad High Court reported as Misri Vs.
Emperor Cr. L. J. (Vol 10) 439.
23 We have heard the arguments of the learned counsel for the
parties, appreciated their arguments and perused the record.
24 Record reveals that the property E-9, Prashant Vihar was owned
by Ramo Devi, the mother of Bhim Singh (PW-9), Rajender (PW-10)
and Attar Singh. All three were real brothers. The ground floor of E-9,
Prashant Vihar was in occupation of Attar Singh and his family
comprising of his wife Savitri Devi and sons Sanjay and Bijender. The
first floor and second floor was in joint occupation of Rajender Singh
and his family as also Bhim Singh and his family. On the date of the
incident, the other two sons of Attar Singh i.e. accused Vinod and
Joginder were living at Sarai Pepal Thala. These facts are admitted.
25 As per the version of Bhim Singh (PW-9), on 25.10.2004 at about
10:00-10:30 PM, a quarrel took place between his two brothers i.e.
Rajender and the family of Attar Singh i.e. his wife Savitri and sons
Sanjay and Bijrender. On hearing this quarrel, PW-9 along with his son
Abhishek (the deceased) came down. Abhishek tried to intervene and
sought to pacify his cousin i.e. son of Attar Singh. Meanwhile, the
accused Joginder and Vinod who were living elsewhere came there on
their motor-cycle; they had also learnt about the incident; they started
abusing Abhishek. Rajender suffered injuries; so also Savitri Devi the
wife of Attar Singh. Accused Joginder and Vinod threatened Abhishek
that since he had tried to intervene that they would settle the matter with
him. Thereafter Abhishek on his motor-cycle went to see his uncle
Rajender who had been removed to the BJRM Hospital; the accused
persons i.e. Joginder and Vinod also followed him on their motor-cycle.
26 On this version of PW-9, a lengthy cross-examination had been
effected but the credibility of this witness remained untarnished; he
stuck to his stand. Suggestions have been given to this witness qua
disputes inter-se between the brothers qua the property E-9, Prashant
Vihar and Civil Suit No. 2017/99 pending before the High Court on this
count. However, on a specific query put to the accused persons
(question No. 9) that Bhim Singh and Abhishek had tried to pacify this
quarrel by intervention, there was an evasive reply; it was not even a
denial; the answer was in the form of "I do not know".
27 The fact that this quarrel had in fact taken place is evident by the
cross FIRs which had been registered qua this incident. FIR No.
897/2004 (Ex.PW-17/A) which had been registered at Police Station
Prashant Vihar on the same day at 12:30 PM on the complaint of
Rajender; the accused were Savitri Devi and her two sons Sanjay and
Bijender. The second FIR i.e. FIR No. 898/2004 (Ex.PW-17/B) was also
registered under Section 308 of the IPC at a later point of time in which
the complainant was Savitri Devi and her two sons. The MLC of Savitri
Devi (w/o Attar Singh) had been recorded by the doctor at the BJRM
Hospital noting simple injuries upon her person. Rajender had been
examined in the hospital at 11:25 PM.
28 This incident had occurred between 10:00-10:30 PM on the said
day and testimony of PW-9 on this count was also corroborated by the
version of Rajender (PW-10). He had deposed that on the fateful day his
bhabhi Savitri Devi at about 10:30 PM started quarreling with him along
with Sanjay and Vinod; he received grievous injuries; Sanjay had an
iron rod and Savitri was having a danda. PCR had been informed.
Abhishek, his nephew had come down to intervene into the matter.
Meanwhile Bhim Singh and Joginder and Vinod, the other two sons of
Attar Singh had also reached the spot. PW-10 has reiterated that Vinod
and Joginder had threatened Abhishek that because of his intervention,
they would set him right "dekh lenge kaam tamam kar denge"; at that
time, he was conscious; he was thereafter removed to BJRM Hospital.
He has further deposed that accused Vinod and Joginder had tried to
forcibly take possession of a part of the portion of E-9, Prashant Vihar
although as per the family settlement, Attar Singh had been allotted his
share in the property at Sarai Peepal Thala. Thus the fact that there were
disputes between the brothers qua this property has come on record.
29 Learned counsel for the appellant has drawn attention of the Court
to the version of PW-9 wherein he has stated that "after that" i.e. after
Rajender had been removed to the hospital, Joginder and Vinod had
threatened Abhishek; emphasis being on the words "after that";
submission being that the testimony of PW-10 on this score that he had
heard the accused persons threatening Abhishek is an incorrect version
and in fact PW-10 had already been removed to the hospital at the time
when these threats had been extended by the accused and he could not
have heard the said threats; as such his testimony is liable to be
disbelieved.
30 There is no gainsaying that the testimony of a witness has to be
read as a whole and no one line or sentence can be picked from one part
of the version to give it a meaning which an otherwise reading of the
whole version would not indicate. Version of PW-9 has to be read in its
entirety. A lengthy cross-examination had been effected of this witness.
He has even gone on to give the timings of the incident; he has reiterated
that the quarrel between Rajender and the family of Attar Singh had
occurred between 10:00-10:30 PM; it has been reiterated that Abhishek
had tried to intervene to pacify the family of Attar Singh not to beat
Rajender; accused Joginder and Vinod had also entered the scene of the
incident on their motor-cycle; when Abhishek tried to intervene, he was
threatened by the accused Joginder and Vinod that they would set him
right; Rajender had received grievous injuries in the incident; he was
removed to the hospital; Abhishek had gone after his uncle to visit him
in the hospital which was between 10:30-11:00 PM. Even presuming
that this sentence "after that" has to be taken in the context in which the
argument had been addressed, the earlier version of PW-9 clearly shows
that when Joginder and Vinod had entered the scene of incident on their
motor-cycle, they had started abusing Abhishek. Obviously they were in
a rage. The detail of these abuses has not been mentioned but the
submission of the learned Public Prosecutor that these abuses could well
have contained threats and intimidating words cannot be ruled out. This
is especially so keeping in view the fact that in this entire version, PW-9
has not explained the words which were used by the accused in their
threat but has only spoken of threats (i.e. they will settle the dispute with
him) having been extended by them to Abhishek.
31 The motor-cycle being driven by Abhishek was bearing No. DL-
8SV-1285 LML which was found lying at the „T‟ junction of Shiv
Dharam Kanta, Jahangir Puri (place of incident) when PW-11 along
with PW-14 had reached the spot. This motor-cycle was in the name of
PW-9; it had been taken into possession vide memo Ex.PW-9/C. The
motor-cycle which was driven by the accused persons was bearing No.
2932; it was a Hero Honda motor-cycle; the pointing out memo of this
motor-cycle was prepared at the instance of accused Vinod; it was
standing on the ground floor of his residence i.e. 65, Sarai Pepal Thala.
The pointing out memo-cum-possession memo of this motor-cycle is
Ex.PW-9/K. A perusal of Ex.PW-9/K shows that this motor-cycle had
blood stains on the right side of its body i.e. on its handle covers. This
memo was also attested by PW-9. These metallic handles when
examined by the CFSL had opined to contain human blood group of „A‟
origin which was also the blood group of the deceased. On a specific
query put to the accused persons on this score, there was again an
evasive reply in the form of "I do not know"; it was not even a denial.
This was yet another piece of clinching evidence; as the accused were
unable to explain as to how human blood of „A‟ origin was detected on
the handle of their motor-cycle which was parked on their ground floor
verandah. The fact that this motor-cycle was registered in the name of
their brother Sanjay is also not in dispute.
32 The aforenoted collected evidence proved on record thus
establishes that on 25.10.2004 at about 10:00-10:30 PM a quarrel had
taken place between Rajender on the one hand and the wife and sons of
Attar Singh on the other hand. The other two sons of Attar Singh
namely Vinod and Joginder had come to E-9, Prashant Vihar on hearing
about this quarrel. Abhishek had also tried to intervene in this quarrel
but in this course, he was intimidated and received threats at the hands
of Vinod and Joginder. Rajender had suffered grievous injuries. Savitri
Devi had also received injuries. Both the injured parties had been
removed to the hospital. Abhishek had gone to visit his uncle Rajender
on the motor-cycle of his father. This was between 10:30-11:00 PM. DD
No. 2 (Ex.PW-4/A) was received in the police post Jahangir Puri at
12:20 PM giving information that at the „T‟ point of G.T.K. Road, Shiv
Dharam Kanta, Jahangir Puri a dead-body of an unknown person was
lying; this information was received at 12:20 PM meaning thereby that
the murder of Abhishek had already been committed between 11:00-
12:20 PM.
33 By 12:20 PM Abhishek was already a dead man; he had been
removed to the BJRM Hospital where he was brought in dead which
was evident from his MLC (Ex.PW-1/A).
34 The quarrel between Rajender and the family of Attar Singh; the
intervention of Abhishek enraged Joginder and Vinod, being followed
by their extending threats to Abhishek had thereafter culminated into
this murderous attack on Abhishek. All this had happened within a span
of less than 1- ½ hour. Cross FIRs (Ex.PW-17/A & Ex.PW-17/B) under
Section 308 of the IPC were registered qua the first part of the incident.
In fact Rajender was under medical examination at the BJRM hospital
(his MLC reflects the time as 11:25 PM) and Abhishek was on his way
to see him when around the same time at the „T‟ junction of Jahangir
Puri; he was attacked and murdered. The revengeful grudge which
Vinod and Joginder were nursing against Abhishek had led to this
assault.
35 This Court is constrained to draw this conclusion not only on the
evidence which has been collected and discussed hereinabove but also
additional evidence which has been collected by the prosecution and
which shall be discussed herein later. However before adverting to this,
the provisions of Section 6 of the Evidence Act would become relevant
and must be adverted to.
36 Section 6 of the Evidence Act reads herein as under:-
"Section:-6, Relevancy of facts forming part of same transaction.- Facts which,
though not in issue, are so connected with a fact in issue as to form part of the same
transaction, are relevant, whether they occurred at the same time and place or at
different times and places."
Illustration „a‟ is relevant. It reads as under:-
"(a) A is accused on the murder of B by beating him. Whatever was said or done by
A or B or the by-standers at the beating, or s shortly before or after it as to form
part of the transaction, is a relevant fact."
37 The principle of law embodied in Section 6 of the Evidence Act is
usually known as the rule of res restae recognized in English law. The
essence of the doctrine is that a fact which though not in issue, is so
connected with the fact in issue "as to form part of the same transaction"
becomes relevant by itself. The requirement of this Section is that these
statements which are sought to be admitted must have been made
contemporaneous with the act or immediately thereafter and not at such
interval of time as to allow fabrication or to reduce the statement to a
mere narrative of past events. A transaction as the term used in this
Section is defined "as a group of facts so connected together as to be
referred to by a single name, as a crime, a contract, a wrong or any other
subject of enquiry which may be in issue. The statements of PW-9 and
PW-10 were contemporaneous or almost contemporaneous with the
transaction in issue and the interval between the first incident and
second incident was so short that there was no time for fabrication; these
declarations of PW-9 & PW-10 qualifying as "res gastae" and are
relevant facts under Section 6 of the Evidence Act.
38 The testimonies of PW-9 and PW-10 also qualify under the
circumstance of "last seen". The theory of "last seen" as enunciated in
judicial pronouncements requires that where the deceased is seen alive
with the accused and soon thereafter, the deceased is found dead or
injured and there is no possibility of any other person accessing the
deceased, until and unless, the accused explains the circumstances under
which the deceased has been injured or has died, the accused persons
must own up for their guilt. The Supreme Court in the landmark
judgment of Mahibur Rahmanand another Vs. State of Assam (2002) 6
SCC 715 had held that where on account of close proximity of place and
time between the event of the accused having last seen with the
deceased and the factum of death, a rational mind is persuaded to reach
an irresistible conclusion and in the absence of any explanation by the
accused on this score, the guilty mind of the accused would become
evident.
39 Applying this test to the instant case, the trial Judge had rightly
relied upon the versions of PW-9 & PW-10 as a circumstance of „last
seen‟. At the cost of repetition and as noted supra the threats and
intimidating words uttered by the accused persons to Abhishek were
between 10:00-10:30 PM; Rajender had been removed to the hospital
and was examined at about 11:25 PM; after Rajender had left for the
hospital, Abhishek followed him on his motor-cycle to visit him;
accused persons followed thereafter; at the „T‟ junction of Jahangir Puri
i.e. just 1-2 kilometers away from the BJRM Hospital, the deceased was
found dead. The first DD recording his death was returned in the
Jahangir Puri Police Post at 12:20 PM; he had obviously died prior in
time. The time span suggests that it was within less than one and half
hour that this entire scene had been enacted. The explanation furnished
by the accused in their statements under Section 313 of the Cr.PC was
that the complainant party wanted to grab their father‟s property and
because of other litigations pending against them, a false case had been
registered against them. This defence which they had taken in their
statements under Section 313 of the Cr.PC did not find mention in the
cross-examination conducted by the learned defence counsel upon the
witnesses of the prosecution. This defence was also not the defence
taken by DW-1 and DW-2 who had set up a totally contradictory and
conflicting defence; their version being that on the fateful day Vinod
was working as a bus driver and he was on duty on the said day. It was
thus rightly disbelieved by the trial Court. The false answers given by
the accused in their statements under Section 313 of the Cr.PC also
persuades this Court to hold that this false statement is an additional link
in the chain of circumstances which had been collected by the
prosecution against the accused persons.
40 The non-examination of Guddu i.e. the person who had removed
the injured to the hospital does not in any manner advance the defence
of the accused; his non-examination does not take away the fact that
Abhishek had in fact been injured and had been removed to the hospital.
This is evident from DD 2A (Ex.PW-4/A).
41 The judgment of Pradeep @ Sanjay & Others (supra) relied upon
by the learned counsel for the accused Vinod in this context is clearly
distinguishable on facts. This was a case where the deceased had already
boarded a bus and was travelling in it when the accused persons chose to
follow him on their motor-cycle; it was in these circumstances that the
Court had noted that this would not qualify as a „last seen‟.
42 The role and the evidence collected qua the other two accused i.e.
Vinod and Joginder shall be discussed separately.
43 Role of accused Vinod
Accused Vinod was arrested at 05:00 PM on 26.10.2004 itself. He
made a disclosure statement (Ex.PW-9/G) followed by a subsequent
disclosure statement (Ex.PW-21/H) which was also made on the same
day. Pursuant to the aforenoted disclosure statements of Vinod, he had
got recovered a knife (did not contain blood stains) as also a cream
colored pant. This was from a sewer near the construction park near the
APMC dispensary. It had been taken into possession vide memo
Ex.PW-9/H. The cream coloured blood stained pant was found in an
iron box at his residence at Peepal Sarai; it was taken into possession
vide memo Ex.PW-9/J.
44 Vehement argument of the learned counsel for the appellants is
that the knife was not blood stained and thus could not be connected
with the crime. On this score, the accused in his disclosure statement
had stated that he had washed this knife after this incident. The law on
the evidentiary value of a disclosure statement is well settled. A
disclosure statement made in police custody is hit by the bar of Sections
25 & 26 of the Evidence Act; it cannot be read in evidence except to the
limited extent that it leads to the discovery of a fact and falls within the
parameters of Section 27 of the said Act. As per the disclosure statement
of Vinod, he had washed the knife. This part of his disclosure has
necessarily to be ignored. However the non noting of blood on this
weapon by the CFSL would not by itself wash away the recovery as has
been vehemently argued. This recovery memo Ex.PW-9/H has been
attested by the public witness PW-9; the police witness to this memo i.e.
PW-12 has also remained consistent on his stand.
45 The blood stained cream coloured pant of Vinod had also been
sent to the CFSL; the CFSL vide its report (Ex.PW-22/3) had opined
human blood group „A‟ on the said pant which was also the blood group
of the deceased.
46 The motor-cycle recovered from the court-yard of the residence of
Vinod at his pointing out also had blood stains of group „A‟ origin on its
right side i.e. on its metallic handles. The blood on this motor-cycle of
the accused remained wholly un-explained by them.
47 Role of Accused Joginder
Record shows that Joginder had been arrested on 31.10.2004 from
Azad Pur Food Mandi vide memo Ex.PW-9/H. He has made his
disclosure statement Ex.PW-9/S. Pursuant to this disclosure statement,
he had got recovered a pant and a shirt which had been taken out from
the box of the bed in his house at 65, Sarai Pepal Thala. Both the shirt
and the pant had evidenced human blood but reaction could not be
known.
48 Accused Vinod had also got recovered a blood stained shirt from
the takht of his house on which two buttons were missing; as per the
prosecution this shirt belonged to co-accused Joginder. It had been taken
into possession vide memo Ex.PW-9/Q. The vehement submission of
the learned counsel for accused Joginder that this recovery has been got
effected by Vinod pursuant to a disclosure statement made by Joginder
and as such cannot be read against Joginder as also the additional
submission that even otherwise there is no evidence to connect this shirt
as the shirt of Joginder.
49 Ex.PW-9/E is the seizure of a button (Ex.PW-12) which was
alleged to be the missing button of the shirt of accused Joginder. This
button had been seized from the spot. On this count, the learned counsel
for the appellant has drawn our attention to the report of the crime team
(Ex.PW-20/A) as also the photographs which had been taken of the spot;
submission being that neither in the crime team report and nor in the
photographs does this button find mention; this seizure has been falsely
planted upon Joginder. To further advance this argument it has been
pointed out that the seizure memo of all the other exhibits show that
they were joint seizures whereas the seizure memo of the button is the
seizure memo of single item which again throws a doubt on this seizure
and to support this submission attention has been drawn to the other
seizure memos; Ex.PW-21/E is seizure memo of two rupess; Ex.PW-
9/D is the seizure of other combined exhibits; seizure memo of the
plastic chair and T.V. had been proved as Ex.PW-9/E.
50 PW-9 Bhim Singh, PW-11 ASI Kishan Jeet and PW-21 Inspector
Satpal Yadav have all been consistent in their version that from the spot
a button of a shirt had been recovered which had been taken into
possession vide memo Ex.PW-9/E after sealing it in a match box. There
is no discrepancy in their versions. In fact all of them in their lengthy
cross-examination conducted on this score stuck to their stand that the
button was lying under the rear wheel of the motor-cycle. In fact no
cross-examination has been effected of PW-11 on this score at all; his
testimony had remained unrebutted. This button had been sent to the
CFSL who had vide its report examined the button Ex.2A along with the
buttons Ex.B-1 to B-7 which were present on Ex.6 (a shirt which had
been got recovered at the instance of accused Vinod and purported to be
the shirt of Joginder) and the CFSL on the examination of its design,
number of holes, diameter and thickness had opined that this button
belongs to the said shirt.
51 Thus by cogent evidence the prosecution has been able to
establish that the missing button which was recovered from the spot i.e.
the scene of crime was the same button of the shirt which had been got
recovered at the instance of accused Vinod. The evidence collected up to
this point can be read; i.e. that the shirt recovered at the instance of
Vinod could be read, if incriminating, against his co-accused Joginder.
52 However how this shirt is connected to accused Joginder has not
been answered by the prosecution. Not a single witness of the
prosecution has come into the witness box to state that this shirt which
had been recovered at the instance of accused Vinod was the shirt of
Joginder. This recovery thus cannot be foisted upon Joginder.
53 In view of the aforenoted evidence finding on this score we need
not deal in detail with the judgments relied upon by the learned counsel
for accused Joginder on this score. However trite it is to say that Section
30 of the Evidence Act is a provision engrained in the Statute; this refers
to statements made by one co-accused against the other and their
evidentiary value. The judgments relied upon by the learned public
prosecutor advancing her proposition that any and all information
elicited by the accused in police custody leading to the discovery of a
fact is an admissible piece of evidence may not be relevant at this stage
in the context of the findings returned aforesaid accepting the
proposition that the recovery of the shirt made at the instance of accused
Vinod could be read as a piece of evidence against co-accused Joginder,
yet there being no further evidence adduce by the prosecution to show
that this shirt in fact was the shirt of Joginder, we need not delve any
further into this argument.
54 The third convict who is not in appeal before this Court is accused
Sanjay. As noted supra there were three accused persons who had been
charge-sheeted. Accused Sanjay has been convicted for the offence
under Section 201 of the IPC. He has undergone the sentence imposed
upon him. He has chosen not to file any appeal. He has got recovered
the second weapon of offence i.e. the dagger from near the dispensary
APMC where it was dug out from the earth and had blood stains upon it.
This had been seized and taken into possession vide memo Ex.PW-9/P.
The serological examination of this dagger had evidenced human blood
of group „A‟ origin on the said dagger.
55 The post mortem doctor (PW-6) in his subsequent opinion
Ex.PW-6/B had opined that the aforenoted weapons Ex PW-9/P and
Ex.PW-9/J could have caused the injuries as noted in the post-mortem of
Abhishek.
56 The sum total of the evidence collected by the prosecution
establishes the following circumstances:-
(i) Last seen:- PW-9 & PW-10 have proved this circumstance.
(ii) Motive:- Motive of the crime has been spelt out and explained in
the oral testimonies of PW-9 and PW-10 which was corroborated by the
cross FIRs Ex.PW-17/A and Ex.PW-17/B. The interference by
Abhishek in the quarrel between the family of Attar Singh and Rajender
when Abhishek was siding with Rajender further infuriated Joginder and
Vinod who were already nursing a grudge against the family of
Abhishek and Rajender qua the property at Prashant Vihar for which a
litigation was pending interse the parties.
(iii) Recovery:- Recovery of two weapons of offence, one at the
instance of accused Vinod and the second weapon at the instance of
accused Sanjay stood proved. So also the blood stained pant of accused
Vinod and the human blood group „A‟ originated on the metallic handle
bar of the motor-cycle parked in the court yard of the residence of the
accused Vinod and Joginder and which was admittedly owned by their
third brother Sanjay. Chocolate coloured pant and shirt recovered at the
instance of accused Joginder having blood stains upon it also stood
proved.
(iv) Medical opinion:- The post mortem doctor had opined that the 12
injuries caused upon the victim Abhishek could well have been caused
by the two weapons which had been sent to him for an opinion. The fact
that there were 12 wounds inflicted upon the victim is undisputed. All
the injuries were by and large grievous. The facts of the case thus do not
qualify for the lesser offence under Section 304 of the IPC as had been
argued by the counsel for accused Vinod.
(v) Scientific evidence:- The report of the CFSL had opined human
blood group of „A‟ origin on the weapon of offence (recovered at the
instance of the accused Sanjay), metallic handle bar of the motor-cycle,
cream coloured pant of accused Vinod as also human blood on the pant
and shirt got recovered at the instance of accused Joginder.
57 All these links form a complete chain in the evidence collected by
the prosecution and have been sufficiently established by the
prosecution to nail the accused persons. They are guilty of having
committed the murder of Abhishek.
58 Appeal is without any merit. Dismissed.
INDERMEET KAUR, J
KAILASH GAMBHIR, J
NOVEMBER 01, 2013
A
