Manjit Singh & Ors. vs State
2014 Latest Caselaw 716 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   RESERVED ON : November 06, 2013
                                   DECIDED ON : February 06, 2014

+                                    CRL.A. 803/2000

        MANJIT SINGH & ORS.
                                                              ..... Appellants
                            Through : Mr.S.S.Das, Advocate.

                            versus

        STATE
                                                         ..... Respondent
                            Through : Mr.M.N.Dudeja, APP for the State.


        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Manjeet Singh (A-1), Bhupinder Singh (A-2), Parminder

Singh (A-3) (since dead) and Harminder Singh (A-4) challenge the

legality and correctness of a judgment dated 21.11.2000 in Sessions Case

No.102/97 arising out of FIR No.679/91 registered at Police Station Patel

Nagar by which they were convicted under Sections

307/326/325/323/324/342/34 IPC. By an order dated 30.11.2000, they

were given various prison terms with fine.

2. Briefly stated the prosecution case as projected in the charge-

sheet was that on 29.11.1991 at about 11.00 P.M. at public street near

House No.T-235, A-15, Baljit Nagar, Delhi, the appellants in furtherance

of common intention inflicted injuries to Ramesh Kumar @ Maheshi,

Bharat Bhushan, Ved Prakash, Suraj Prakash and Smt.Sheela Wanti in an

attempt to murder them. The police machinery swung into action when an

information regarding the quarrel was conveyed and Daily Dairy (DD)

No.18/A was recorded at Police Station Patel Nagar. The investigation

was assigned to SI Satya Dev who with Const.Brij Bhushan and other

police personnel went to the spot. They came to know that the injured had

been taken to DDU hospital in a PCR van. The Investigating Officer

lodged First Information Report after recording Ramesh Kumar's

statement (Ex.PW-1/A). During the course of investigation, statements of

witnesses conversant with the facts were recorded. The accused persons

were apprehended; arrested and the crime weapon was recovered. Exhibits

were sent to Forensic Science Laboratory (FSL) for examination. After

completion of investigation, a consolidated charge-sheet was submitted in

the court against all of them. The accused persons abjured their guilt and

claimed to be tried. The prosecution examined 16 witnesses to

substantiate the charges. In 313 statements, the accused persons denied

their complicity in the crime and pleaded false implication. They

examined DW-1 (Mangal Sen) in defence. The trial resulted in conviction

of all the appellants as aforesaid. Being aggrieved, they have preferred

the appeal. A-3 expired during the pendency of the appeal and the

proceedings against him were dropped as 'abated'.

3. I have heard the learned counsel for the parties and have

examined the evidence tendered. Appellants' counsel strenuously urged

that the trial court did not appreciate the evidence in its true and proper

perspective and fell into grave error in relying upon the testimonies of

interested witnesses without independent corroboration. The trial court

without cogent and valid reasons did not give due weightage to the

variance between ocular and medical evidence. It fell into error by not

considering the defence version. The counsel pointed out that there were

number of contradictions and discrepancies to be found in the prosecution

case which had remained unexplained. PW-2 (Sheela), PW-7 (Pankaj)

and PW-9 (Surender Kumar) did not support the prosecution and turned

hostile. 'Danda'/'saria' allegedly used in the crime were not recovered.

The witnesses have given divergent and conflicting version about the

occurrence. The accused persons were falsely implicated as A-1 had filed

a complaint case against the complainant and was annoyed on that

account. No independent public witness was associated at any stage of

the investigation. The recovery of crime weapons is doubtful and suspect.

Learned Additional Public Prosecutor supported the judgment and

contended that the prosecution had proved the offences to the hilt. He

urged that the victims have supported the prosecution on all material facts

and in the absence of material discrepancies, their cogent and reliable

testimonies cannot be doubted and disbelieved.

4. The occurrence took place at around 11.00 P.M. Ramesh

Kumar, Bharat Bhushan, Sheela Wanti and Suraj Prakash were taken to

DDU hospital by PCR officials from the spot in a PCR van. The MLCs

record their arrival time at about 12.15-12.30/1.10 A.M. The injuries

sustained by Sheela was 'grievous' in nature. Ramesh, Suraj Prakash and

Vijay sustained injuries 'simple in nature' in the occurrence. Bharat

Bhushan was stabbed on vital organs and the nature of injuries were

'dangerous caused by sharp weapon.' After recording Ramesh Kumar's

statement (Ex.PW-1/A), rukka (Ex.PW-13/A) was prepared and FIR was

lodged without wasting any time at 02.00 A.M. FIR in a criminal case is a

vital and valuable piece of evidence for the purpose of appreciating the

evidence led at the trial. The object of insisting upon prompt lodging of

the FIR is to obtain the earliest information regarding the circumstance in

which the crime was committed, including the names of the actual culprits

and the parts played by them, the weapons, if any, used, as also the names

of the eyewitnesses, if any. In the instant case, there was no delay in

registration of the FIR on the statement of victim Ramesh Kumar. He

disclosed the police at the first available opportunity as to how and under

what circumstances, a quarrel took place with the appellants and how

injuries were inflicted to all of them with various arms. Assailants were

specifically named and definite role was assigned to each of them. Since

the FIR was lodged in promptitude, there was least possibility of

fabricating a false story in such a short interval. The FIR gave a detailed

account of incident. No deficiency in terms of the omission of the names

or the role played by the accused was pointed out. While appearing as

PW-1, the complainant proved the version given to the police at the first

instance without major variation. He deposed that at about 11.00 P.M. on

29.11.1991 when he was present outside his house in a gali for urinal, A-

4 abused him and threatened to teach him a lesson due to a previous

quarrel. When he requested A-4 not to abuse him, they (A-1 and A-4)

grappled with him. In the meantime, A-2 and A-3 with knives arrived

there. On his raising alarm, his brother Bharat Bhushan came to rescue

him. The witness further deposed that A-1 and A-4 caught hold of Bharat

Bhushan and A-2 gave blows with knife on his chest and stomach.

Thereafter, A-3 gave a knife blow on his hip. A-3 also gave knife blow to

hit him (PW-1) on his shoulder and A-4 stabbed him on his forehead. In

the meanwhile, Vijay, Suraj Prakash and his mother Sheela Wanti arrived

at the spot and intervened to rescue them. They were also given beatings

by the accused persons. Vijay was dragged inside the house and was

given beatings. He identified Shirt (Ex.P-1) which he was wearing at the

time of incident and was bloodstained and had a cut mark on left shoulder.

He also identified knives (Ex.P-2 and Ex.P-3) in possession of A-4 and A-

2 respectively. In the cross-examination, he revealed that they all lived

together in house No.T-235, A-15, Baljeet Nagar. On the day of

occurrence, he had gone to attend the marriage of one Anita in Patel

Nagar and a quarrel had taken place with A-4 there. He denied the

suggestion that he (PW-1) was drunk when he had gone to the said

marriage. He volunteered to add that A-4 was drunk and was

misbehaving. When he complained about his conduct to his father (A-1),

he (A-1) told him that A-4 had not taken liquor. The said incident

occurred at 10.00 P.M. He further revealed that he returned to his house

from the marriage at about 10.15 P.M. When he came outside at about

10.30 or 11.00 P.M. for urinal, the incident took place. Surender Mohan,

Ashok Kakkar, Pankaj Kohli and other members of the locality gathered

at the time of occurrence. He denied the suggestion that he and his

brother had raided the house of the accused persons. He was not aware if

any case was filed against him or his brother.

5. On scanning the entire statement of the witness it transpires

that despite searching cross-examination, nothing material could be

extracted or elicited to discard the version given by him. Presence of the

witness along with his family members at the spot was not challenged.

The accused persons did not deny their presence at the spot. No ulterior

motive was assigned to the witness to falsely implicate the accused who

were residing in his neighbourhood since long and to shield the actual

assailants. Vital facts deposed in examination-in-chief regarding the

incident remained unchallenged in the cross-examination. PW-3 (Bharat

Bhushan) who arrived at the spot on hearing the cries of his brother

Ramesh to rescue him was also assaulted. In his Court statement, he

deposed that at about 11.15 P.M. when he was sleeping in his house, he

heard noise coming from outside his house and he woke up. When he

came outside, he saw A-1 to A-4 quarrelling with his brother Ramesh

Kumar (PW-1). When he tried to intervene, he was caught hold of by A-1

and A-4. A-2 and A-3 gave knife blows to him. A-2 hit him on his chest

and abdomen whereas A-3 gave knife blow on his back. Surender,

Pankaj, his neighbours also reached along with others. His brothers Vijay

Prakash and Suraj Prakash also came there. The accused persons dragged

Vijay towards their house. Thereafter, he became unconscious. He

identified his shirt (Ex.P-1) and knives (Ex.P-2 and Ex.P-3) used in the

crime. In the cross-examination, he admitted that relations with the

accused persons before the incident were cordial. He fairly admitted that

he did not see as to who gave beatings to his brother Ramesh. He

elaborated that when he came out, he was caught hold of by A-1 and A-4.

He regained consciousness the next day in the afternoon. He denied the

suggestion that he and his brother had raided the house of the accused to

beat them. Again the testimony of the injured witness remained

unshattered in the cross-examination. The injuries sustained by him were

not challenged. No extraneous motive was attributed to the witness to

falsely implicate them. PW-6 (Vijay Kumar) implicated the accused

persons for dragging him to their house and giving him beatings with fists

and blows. He was also given a knife blow on throat near chin. PW-8

(Suraj Prakash) who arrived at the spot assigned specific role to A-1 and

his three sons A-2 to A-4 to have caught hold of Bharat Bhushan. He

implicated A-2 for giving Bharat Bhushan knife blow on the abdomen.

When his brother Ramesh intervened, he was also stabbed on his forehead

and shoulder by A-2. When he tried to rescue his brothers, he was

stabbed by A-4. Pankaj and Surender rescued him from the accused

persons. His mother was given beatings by A-1 with a danda. In the

cross-examination, he admitted that A-1's mother received minor injuries

due to fall. Ramesh Kumar and his wife had gone to attend the marriage

of Anita. He was not aware if any quarrel had taken place in the said

marriage. He denied the suggestion that he and his brother had caused

injuries to A-1's mother.

6. On scrutinizing the testimony of all the victims, it reveals that

they have implicated A-1 to A-4 for inflicting multiple injuries to them

with knives/dandas. It is true that there are some inconsistencies as to the

exact role played by each of the assailants and use of specific weapon by

them. However, these inconsistencies do not affect the core of the

prosecution case. The evidence of injured eye-witnesses cannot be

discarded in toto on the ground of inimical disposition towards accused or

improbability of narrating the details of actual attack. The occurrence had

taken place at about midnight in which successive blows were inflicted to

various victims in quick succession. It was not humanly possible for the

witnesses to remember minute details as to which of the assailants was

armed with a particular weapon and which of them inflicted particular

number of injuries on specific body part/parts of the victims. PW-2

(Sheela Wanti), mother of the victims Ramesh and Bharat Bhushan, who

sustained grievous hurt was aged about 75 years and was unable to

implicate any assailant for causing injuries to her. PW-6 (Vijay Kumar)

fairly did not implicate the accused persons for the injuries inflicted to

Ramesh Kumar and Bharat Bhushan. He was categorical to say that he

did not see Bharat Bhushan, Ramesh Kumar and Sheela being beaten by

the accused persons. It is also true that PW-7 (Pankaj) did not opt to

support the prosecution and resiled from the previous statement mark

Ex.PW-7/A recorded under Section 161 Cr.P.C. He, however, deposed

that at about 11.00 P.M. he heard a noise and came out of his house. He

saw Ramesh and Bharat Bhushan in injured condition. Surender Mohan

was also present there. He, however, was not aware as to who had caused

injuries to them. PW-9 (Surender Kumar) also deposed that on hearing

noise at about 11.00 or 11.15 P.M. he came outside his house and saw a

large crowd to have collected there. A quarrel had taken place between

the two parties. One party was of Ramesh Kumar and other was of

accused Manjit Singh (A-1). Ramesh's party had sustained injuries,

Bharat Bhushan and Sheela Wanti and Vijay Kumar had also sustained

injuries. Manjit singh, Bhupender Singh and Harvinder were also injured.

Police arrived there and took both the parties to the hospital. It is settled

legal proposition that the evidence of a prosecution witness cannot be

rejected in toto merely because the prosecution chose to treat him as

hostile and cross-examine him. The evidence of such witnesses cannot be

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

accepted to the extent that their version is found to be dependable on a

careful scrutiny thereof. In the instant case, the victims categorically

asserted the presence of PW-7 (Pankaj) and PW-9 (Surender Kumar).

They also talked about a quarrel between the two groups. For the reasons

unknown, they did not present true facts as to who was the aggressor. In

view of the categorical direct testimony of the injured witnesses, their

resiling from the previous statements would not dislodge their version.

7. Ocular version narrated by the prosecution witnesses is in

consonance with medical evidence and there is no major variance. Minor

variations between the two is not relevant. There is no ground to hold that

medical evidence totally improbabilises ocular evidence. Some

discrepancies in the narration of the details of the incident are bound to be

there. The corroboration of testimony of the witnesses by medical

evidence cannot be expected with mathematical accuracy. PW-14

(Dr.Chaman Prakash) medically examined Ramesh Kumar vide MLC

(Ex.PW-14/A) and opined the nature of injuries suffered by him as

'simple caused by sharp object.' He also medically examined Bharat

Bhushan vide MLC (Ex.PW-14/B) and noted the following injuries:-

     (i)      1 cm. sharp incise wound lt. iliac follsa.

     (ii)     1 cm. sharp incise wound on lt. upper hypochondrium.

     (iii)    1 cm. sharp incise wound on rt. Gluteal on buttock.

                On medical examination of Suraj Prakash vide MLC

(Ex.PW-14/C) the injuries were opined as 'simple caused by sharp as well

as blunt object.' PW-15 (Sant Ram) Record Clerk, DDU hospital, proved

the MLC of Sheela Wanti (Ex.PW-15/A) prepared by Dr.Ashish where

the nature of injures were 'grievous'. PW-16 (Dr.Lalit Kumar) appeared

and proved the opinion as 'grievous' on MLC (Ex.PW-15/A) of Sheela

Wanti and 'dangerous' on MLC (Ex.PW-14/B) of Bharat Bhushan. He

further stated that injuries Nos.1 and 2 in MLC (Ex.PW14/B) were

'dangerous' in nature as they were inflicted on the abdomen. The opinion

was not challenged in the cross-examination.

8. In 313 statements, the accused persons did not give plausible

explanation to the incriminating circumstances appearing against them. It

was alleged that complaint case was filed by A-1 against PW-1 (Ramesh)

and he was not favourably disposed towards them and has falsely

implicated them. This defence does not appeal to mind as the complaint

case filed by A-1 was admittedly dismissed for non-prosecution. Nothing

has come on record to infer if the Court had summoned any of the victims

in the said complaint case. It is also unclear as to when the complaint case

was filed and when it was dismissed for non-prosecution. For the serious

injuries sustained by the victims, they are not expected to let the real

culprits go scot free and to falsely rope in the accused persons at around

11.00 P.M. The court can assume that a related witness would not

ordinarily shield the real offender. Defence witness DW-1 (Mangal Sen)

is of no help to the accused person. He merely deposed that the accused

persons were his neighbours and were of good character. He never saw

any dispute between Ramesh and accused persons in the mohalla. He was

conspicuously silent about the occurrence and was not aware as to who

were the culprits to inflict injuries. Suggestion has been put to the victim

in the cross-examination that they had raided the house of the accused

persons and had inflicted injuries to their mother. However, no complaint,

whatsoever, was lodged by the accused persons against any one. MLC of

the injured mother has not been brought on record to ascertain its nature.

On scanning the appeal file, it reveals that a complaint case (Annexure-E)

was filed by A-1 against Ramesh Kumar @ Mashi, Bharat Bhushan @,

Pappi, Ashok, Vijay, Suraj Prakash @ Pashi, Surinder Kumar, Pankaj in

February, 1992 for taking action against them for inflicting injuries to him

and his family members with deadly weapons. However, appellants'

counsel during arguments did not disclose as to what had happened to the

said complaint case or if any of the victims was summoned in the said

proceedings. The appellants did not bring on record the medical

examination reports to infer if any of them had sustained any injuries and

if so what was its nature. There is nothing on record to infer that the

victims were aggressors. Neither the appellants nor any injured from their

side in the said incident appeared in defence.

9. The trial court has elaborately examined the grievances

raised by the appellants with cogent reasons. The findings based upon fair

appraisal of the evidence require no intervention. All the accused persons

were present together at the spot and had participated in the crime.

Apparently, they shared common intention. It is well-settled that common

intention may develop at the spur of the moment. The prosecution was

able to establish that all the accused persons in furtherance of their

common intention inflicted various injuries to the victims. The findings

on conviction are affirmed.

10. The accused persons were convicted under Section 307 IPC

for inflicting injuries to PW-1 (Ramesh). It has come on record that there

was no history of hostile relations between the two parties prior to the

altercation that took place at about 10.00 P.M. on the said date between

the complainant-Ramesh and A-4 in the marriage of Anita. The said

confrontation annoyed A-4 and prompted him to abuse the complainant

when he was present outside his house at 11.00 P.M. This brought the

family members of both the parties at the spot and the accused persons in

the said quarrel inflicted injuries to the victims. It has further come on

record that injuries inflicted to PW-1 (Ramesh Kumar) were on his

shoulder and forehead which were not vital organ of the body. No

repeated life threatening injuries were caused with deadly weapons to

him. He went to DDU hospital on his own at 01.10 A.M. and MLC

(Ex.PW-14/A) was prepared. He was conscious and oriented at that time.

The nature of injuries was 'simple caused by sharp object.' Needless to

state that injuries were not inflicted to Ramesh with the avowed object or

intention to cause his death. It was a case of quarrel in which accused

persons sharing common intention voluntarily caused simple hurt with

sharp object and the offence falls within the ambit of Section 324 IPC.

The conviction of the appellants under Section 307/34 IPC is altered to

Section 324/34 IPC. Conviction under other offences warrants no

interference.

11. A-1 is stated to be aged 75 years old . He remained in

custody for some duration at the initial stage of investigation before

release on bail. He has clean antecedents and is not involved in any

criminal case. He has lost his son (A-3) during the pendency of the

appeal. Considering his clean antecedents, age and the role played by

him in the occurrence, the period already undergone by him in this case is

taken as substantive sentence. However, he shall pay compensation of

`50,000/- and shall deposit it within 15 days before the trial court. The

amount shall be released to victim Bharat Bhushan who got serious

injuries.

12. A-3 is already dead and proceedings against him have been

dropped.

13. A-2 and A-4 are brothers and have suffered ordeal of

trial/appeal for about 20 years. They have clean antecedents and are not

facing any other criminal proceedings. Sentence order is modified to the

extent that the substantive sentence under Section 326 IPC shall be RI for

two years. Offence under Section 307 has been altered to Section 324

IPC. The substantive sentence under Section 324 IPC will be RI for one

year. Other terms and condition of the sentence order are left undisturbed

qua A-2 and A-4.

14. The appeal stands disposed of in the above terms. A-2 and

A-4 are directed to surrender before the trial court on 12th February, 2014

to serve the remaining period of sentence. A-1, A-2 and A-4 shall pay

the unpaid fine (if any) on the aforesaid date before the trial court or else

shall suffer default sentence. The Registry shall transmit the Trial Court

records forthwith.

(S.P.GARG) JUDGE FEBRUARY 06, 2014 sa