Madhusudan vs The State (Nct Of Delhi)
2014 Latest Caselaw 2514 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.A.387/1999

       MADHUSUDAN                                    .....Appellant
                           Through :   Mr.Vivek Sood, Adv.

                      Versus

       THE STATE (NCT OF DELHI)             ..... Respondent
                     Through : Ms.Rajdipa Behura, APP for the
                               State.

%                                  Pronounced on : 19th May, 2014

       CORAM:
       HON'BLE MS. JUSTICE REVA KHETRAPAL
       HON'BLE MS. JUSTICE PRATIBHA RANI

PRATIBHA RANI, J.

1. The Appellant Madhusudan has preferred this appeal through Jail praying for his acquittal mainly on the ground that the reasoning given by learned Addl. Session Judge while acquitting his co-accused Kanwaljit @ Bittoo and Kuldeep Rai @ Tony should have also resulted in his acquittal.

2. We may note here that State did not prefer any appeal challenging the acquittal of co-accused Kanwaljit and Kuldeep Rai. However, co-convict Manoj @ Mannu preferred Crl.A. No.212/1999 against his conviction under Section 302/307/34 IPC and the sentences awarded to him by learned Addl. Sessions Judge. In the said appeal, the Appellant Manoj @ Mannu claimed himself to be juvenile. After getting the

necessary inquiry conducted under Juvenile Justice Act, he was declared juvenile. Thereafter, on 24.09.2012 learned counsel for the Appellant Manoj Kumar stated before the Court that the Appellant did not want to question and challenge his conviction, hence matter need not be remanded to Juvenile Justice Board. In view of the submissions made by learned counsel for the Appellant, this Court, following the earlier decisions of this Court in Crl.A.No.471/1997, Crl.A. No.699/2009 and Crl.M.C. No.1542/2011, upheld the order of conviction of Appellant Manoj Kumar but modified his sentence observing that Manoj was a juvenile on the date of offence. Appellant Manoj was set at liberty on the basis of the period of sentence already undergone by him in judicial custody i.e. seven years, nine months and twenty seven day as on 28.05.1999.

3. The Appellant Madhusudan before this Court was convicted under Section 302/307 IPC with the aid of Section 34 IPC for committing the murder of Sh.Khem Raj and attempt to commit the murder of his wife Smt.Ramesh Kumari (PW-1) on the basis of statement made by injured Smt.Ramesh Kumari (PW-1) who is also an eye witness to the murder of her husband Khem Raj at the hands of her nephew Manoj @ Mannu.

4. Briefly stating, the case FIR No.324/1991 was registered on 18.07.1991 at PS Hari Nagar on the basis of statement made by Smt. Ramesh Kumari (PW-1), who herself was injured in the occurrence in which her husband lost his life allegedly at the hands of Appellant Madhusudan and his associates namely Manoj Kumar, Kanwaljit and Kuldeep Rai.

5. As per prosecution case, on 18.07.1991 at 2.25 am Lady Ct.Kamlesh, No.1981/PCR informed PS Hari Nagar vide DD No.66-B that a telephone call had been made by one Sushil from telephone No.535638 that one person had been stabbed at C-160, Gandhi Ashram, Hari Nagar and police may be sent. The DD was marked to ASI Raj Singh for verification who alongwith HC Jagdish reached the spot. Inspector Yashwant Singh, SHO, PS Hari Nagar (PW-36) also left the police station at 2.30 am for the spot vide DD No.31-A Ex.PW36/A alongwith staff consisting of SI Dharampal, SI Sardar Singh, ASI Mahender Singh, Ct.Dharam Singh, Ct.Yashpal and Ct.Hansraj in his official vehicle No.DBL-8691 driven by Ct.Ajay Kumar in connection with DD No.66-B. On reaching the spot, the SHO came to know from HC Jagdish that the injured had already been removed to Hospital and ASI Raj Singh who attended the call, had also left for hospital. After instructing HC Jagdish to guard the spot, SHO Inspector Yashwant Singh also left for DDU Hospital where he met ASI Raj Singh. MLC of Sh.Khem Raj and Smt.Ramesh Kumari were collected. Khem Raj had already been declared 'Brought Dead' by doctor with 17 injuries on his body whereas PW-1 Ramesh Kumari was declared fit for statement.

6. Inspector Yashwant Singh recorded the statement Ex.PW1/A of PW-1 Smt.Ramesh Kumari and after making endorsement Ex.PW36/B on the said statement, sent the rukka through Ct.Yashpal for registration of the case. Supplementary statement of Smt.Ramesh Kumari was also recorded by the investigating officer. Crime team, dog squad and photographer were informed to reach the spot.

7. After conducting necessary investigation at the spot and seizure of the case property and getting the spot photographed, search was made for the offenders.

8. During investigation, while co-accused Manoj Kumar @ Mannu, Kanwaljit @ Bittoo and Kuldeep Rai @ Tony were arrested from Chandigarh, Appellant Madhusudan @ Madhu was arrested on 24.07.1991 from Old Delhi Railway Station. After completion of investigation, all the four accused persons were sent for trial for the offences complained of.

9. The Appellant Madhusudan and his co-accused Manoj Kumar, Kanwaljit and Kuldeep were charged for committing the offence punishable under Section 302/307/34 IPC to which they pleaded not guilty and claimed trial.

10. Prosecution has examined 39 witnesses in all in support of its case. Out of the 39 witnesses examined by prosecution, the material witnesses are PW-1 Smt.Ramesh Kumari - the complainant/injured, PW-2 Sh.Raj Kumar & PW-3 Sh.Sushil Kumar - sons of PW-1 Smt.Ramesh Kumari; PW-11 Sh.Devraj - brother of the complainant Smt.Ramesh Kumari who was telephonically informed by PW-3 Sh.Sushil Kumar about the occurrence and reached the spot/hospital; PW-19 Dr.A.K.Singh who conducted surgery on PW-1 Smt.Ramesh Kumari, PW-23 Dr.L.T.Ramani who conducted the postmortem on the body of Sh.Khem Raj and PW-36 Inspector Yashwant Singh, SHO, PS Hari Nagar - the investigating officer of this case. The remaining public witnesses and police officials are formal witnesses who assisted in the investigation of this case.

11. Appellant Madhusudan was also examined under Section 313 CrPC to enable him to explain the incriminating evidence appearing against him. In his statement recorded under Section 313 CrPC, the case of the Appellant Madhusudan has been of denial simplicitor. While given an opportunity by the Court putting the question 'Have you anything else to say?', he stated that on 22.07.1991 at about 11.00 am he was arrested by police and kept at police post Sector-24-C, Chandigarh and next day brought to Delhi. He was kept at PS Hari Nagar for 2-3 days where he was also shown to the witnesses. He further stated that the police was insisting him to name the mother of Manoj @ Mannu to be one of the assailants in this incident and since he refused to name her, he has been falsely implicated in this case. Appellant Madhusudan has also examined his father Sh.Kulanand as DW-1 in his defence.

12. The learned Trial Court, on appreciation of evidence, acquitted co- accused Kanwaljit and Kuldeep Rai for the following reasons :-

„72. The other evidence brought on record by the prosecution with much fan-fare that accused Kanwaljit and Kuldip alongwith accused Manoj had pointed out the place of incident and SI Dharam Pal had prepared the pointing out memo, was of no help to the prosecution as police very well knew that place of incidence and this fact was not discovered by police in consequence to the disclosure statement made by the said accused persons.

73.Although, it was sought to be proved by the prosecution that accused Kuldip Rai had led the police party to DDU Hospital in DDA Park and got recovered the blood stained dagger from there for which SI Dharam Pal had prepared the sketch of the same vide Ex.PW27/F and had seized the same vide seizure memo Ex.PW27/G but the said recovery at the instance of accused Kuldip Rai does not inspire confidence as no local resident from that place was associated during the investigation. Apart from that, the

said park was a public place and was accessible to the public and it cannot be said with definite certainty that only accused Kuldip Rai had exclusively knowledge about the said dagger lying in DDA park. As such, it cannot be held with certainty that any knife/dagger was got recovered by accused Kuldip. Since, accused Kanwaljit could not get recovered any weapon of offence subsequent to his disclosure statement, in my opinion, the said disclosure statement Ex.PW27/C being a confessional statement made during the police custody was in-admissible in evidence and cannot be read against him. Similarly, the disclosure statement stated to above made by accused Kuldip Rai which is Ex.PW27/B which was confessional in nature cannot be read against him, since the police has failed to prove beyond the shadow of reasonable doubt that any dagger was got recovered by said accused in consequence to the said disclosure statement.

74.Even assuming the worst proposition that accused Kuldip Rai and Kanwaljit had got recovered the blood stained pant and shirt and accused Kuldip had also got recovered the blood stained dagger, even then the said discovery of the fact was not sufficient to link the accused persons with the commission of offence. It must be remembered that this evidence was at best a corroborative piece of evidence. Until and unless, it was proved beyond the shadow of reasonable doubt that accused persons had participated in the commission of offence, the mere recovery of the blood stained clothes and weapon of offence at their instance was not sufficient to link them with the commission of serious offence of murder in the absence of any other corroborative piece of evidence. No doubt, from the CFSL report Ex.PW39/D, it appears that the shirt, pant and daggers got recovered by accused persons were having human blood of B group and that injured Ramesh Kumari was also having the blood of B group but as already stated since, there was no reliable direct evidence showing the involvement of accused Kanwaljit and Kuldip Rai and PW Ramesh Kumari had not named both the accused persons while lodging the First Information Report, the said evidence against accused persons was not sufficient to link the said accused with the commission of offence. It is possible that both accused might have

committed the offence but the prosecution has to travel a long way in order to establish their case against the accused beyond the shadow of reasonable doubt. As such both the accused have to be acquitted for the offences charged with by giving them the benefit of doubt.

However, it is contended by learned APP for the State that from the brief-case, one note book bearing the name of Kuldip Rai was also recovered which was seized by Investigating Officer alongwith other articles vide seizure memo Ex.PW3/B and that the presence of said note-book belonging to the accused Kuldip Rai certainly shows his presence at the spot. However, I am unable to appreciate the said argument of ld. APP in view of the fact that mere presence of note-book bearing the name of Kuldip Rai is not sufficient to show the presence of accused Kuldip Rai at the spot. Possibility of the said note-book being in possession of his co- accused cannot be ruled out and this fact itself is not sufficient to link the accused Kuldip Rai with the commission of offence.‟

13. The learned Addl. Session Judge convicted the Appellant Madhusudan and Manoj @ Mannu for the reasons extracted hereunder :-

„75. However, so far as regards the involvement of accused Manoj @ Mannu and accused Madhu Sudhan @ Madhu was concerned, the same stood on different footings. Admittedly, accused Manoj @ Manny was a close relative of deceased Khem Raj and Ramesh Kumari. He had been frequently visiting their house being the cousin. PW Sushil Kumar and Raj Kumar also very well knew him. So there was no question of any mistaken identity of the said accused. Although, accused Madhu Sudan @ Madhu was not the relative of deceased Khem Raj but in the cross examination of PW Ramesh Kumari conducted on 18.8.93, it was revealed by her that accused Madhu Sudan had also come to her house alongwith accused Manoj before 17.7.91. At the said time, it may also be added that from the evidence of Ramesh Kumari, it was quite clear that on 17.7.91 at about 6 PM accused Manoj and Madhu Sudan had come to her house and they were carrying one attaché-case and hanging bag. As per custom, she had enquired from Manny (Manoj) about the diner but he had told her that they

had taken their meals in the hotel and he had agreed to take a cup of tea. Smt. Ramesh Kumari had then prepared the tea and had served the same to both accused persons and at that time, her son Sushil Kumar and her husband Khem Raj were also present. After both accused had finished their tea and after Ramesh Kumari had talked with Manny on the routine family affairs, accused Manoj asked her husband Khem Raj that he would like to go out for strolling and then accused Manoj accompanied by accused Madhu Sudan had left the house and they had again returned at about 11 PM and then they had gone for sleep on the first floor of the house.

Now, from the evidence of PW Ramesh Kumari, there was no dispute about the identity of accused Manoj as well as accused Madhu Sudan. Even assuming the fact that accused Madhu Sudan was not known to the family of Ramesh Kumari earlier to the incident but since, he had stayed in the house for sometime and had taken tea, PW Ramesh Kumari and her sons had sufficient time to see him properly. As such, it was not difficult for either PW Ramesh Kumari or her sons to have identified the accused. PW Ramesh Kumari had clearly stated while lodging the report that accused Manoj was accompanied by his friend who was of his age. At the same time, it has been deposed by PW Ramesh Kumari that on the mid night of 17.7.91 at about 2/2.25 AM she was awakened by the noise in the room and had found that she was surrounded by four accused persons. They had swiftly pasted tape on her mouth and the mouth of her husband and she and her husband were repeatedly stabbed. On seeing accused Mannu, she had uttered the words 'Mannu is it you'. At that time, accused Mannu had also exhorted his co-accused 'Chheti Wad Do Inan' (killed them immediately). According to her, her shrieks had attracted the attention of her son Sushil Kumar who came down but when he was still at stairs-case, all the accused had fled away from the scene.

76.As already stated, the presence of accused Kanwaljit and Kuldip could not be established at the time of incident at the spot but from the evidence of PW Ramesh Kumari, it was quite evidence that both accused were found present in her bed room alongwith two other associate and they had applied tapes at their mouth and she and her husband were stabbed. The fact that accused persons

had come prepared by bringing tapes and other goods inside the house clearly suggest that they had come prepared for causing the death of deceased Khem Raj and his family members. It is also significant to add that PW Ramesh Kumari had named accused Manoj and had also informed the police about his friend immediately after the incident in the First Information Report Ex.PW1/A. It is also significant to add that Smt. Ramesh Kumari would not have involved her close relative for causing the death of her husband without any cause and reason. It was unlikely that she would have spared the real culprits just with a view to involve her close relative who was living far away at Chandigarh. The testimony of PW Ramesh Kumari also finds corroboration from the testimony of PW3 Sushil Kumar and PW Raj Kumar who were also present on the first floor of the house when the incident took place. Being the night time, the presence of these two witnesses at their house was quite probable and natural. PW Sushil Kumar had given information to the police immediately after the incident which further confirmed his presence at the spot. It was evidence from the testimony of PW Sushil Kumar that when he heard the noise of "Bachao-Bachao" of his mother, he had come down and had seen accused persons running away from the bedroom of his parents while carrying blood stained knives in their hands. They had tried to run away towards front door but they had seen him coming from the stairs, they had made their escape from rear door. Similarly, it is evident from the testimony of PW Raj Kumar that he was woken up at mid night at 2 AM by his brother who had run towards stairs, he had then seen from balcony that accused persons while running away with knives in their hands which were blood stained. Since, both accused persons had slept on the first floor in the room and since, immediately after the incident, they had run away from the spot, it shows their guilty conscience and involvement in the commission of offence. The fact that deceased Khem Raj had sustained 17 stab injuries including on his chest, it clearly shows that accused wanted to eliminate him at any cost. Similarly, the fact that PW Ramesh Kumari had sustained injuries in her abdomen and she could survive due to timely medical help received by her, in my opinion, both accused persons wanted to take her life also.‟

14. The Appellant Madhusudan, on being convicted under Section 302/307/34 IPC and the sentences awarded, preferred the present appeal.

15. We have heard Mr.Vivek Sood, learned counsel for the Appellant Madhusudan and Ms.Rajdipa Behura, learned APP for the State.

16. Mr.Vivek Sood, learned counsel for the Appellant assailed the conviction and sentence of the Appellant Madhusudan on the ground that the notebook recovered from the house of the complainant had the name of Kuldeep who has already been acquitted by learned Trial Court. It has been further submitted that for the reasons given by learned Addl. Session Judge in the impugned judgment for acquittal of Kuldeep and Kanwaljeet, he could not have distinguished the prosecution case qua Madhusudan as the recovery from Madhusudan has also been disbelieved by learned Trial Court. Appellant Madhusudan has been mainly convicted on the ground that PW-1 Smt. Ramesh Kumari - the complainant and her two sons i.e. PW-2 Sh.Raj Kumar and PW-3 Sh.Sushil Kumar had ample opportunity to see Madhusudan and identify him as he alongwith Manoj @ Mannu stayed there overnight. While referring to material contradictions in the statement of PW-1 Smt.Ramesh Kumari and her two sons i.e. PW-2 Sh.Raj Kumar and PW- 3 Sh.Sushil Kumar, Sh.Vivek Sood, Advocate submitted that even as per PW-1 Smt.Ramesh Kumari, death of her husband was caused by her nephew Manoj @ Mannu and injuries on her person was caused by the associate of Mannu. Even the FIR as well as the MLC do not contain the name of Madhusudan to be one of the assailants. Even if Madhusudan is assumed to be the associate of Manoj @ Mannu, who caused injuries to Smt.Ramesh Kumari, there is nothing on record to prove that

Madhusudan was aware of intention of Manoj @ Mannu to commit murder of his maternal uncle Sh.Khem Raj. Thus, in the given circumstances, on the basis of material available on record in the form of testimony of PW-1 Smt.Ramesh Kumari, Appellant Madhusudan could have been convicted only under Section 307/34 IPC and not under Section 302/34 IPC. Mr.Vivek Sood, Advocate submitted that Appellant Madhusudan had already remained in custody in this case for a period of seven years, eight months and fifteen days as on 12.04.1999. The co- convict Manoj @ Mannu had already been declared juvenile and let off with the sentence of seven years, nine months and twenty seven day as on 28.05.1999 which he had already undergone in the instant case. Since the Appellant Madhusudan was also in the same age group but technically not a juvenile and the occurrence had taken place about 23 years ago, the Appellant having no other criminal record, he is limiting his prayer to the extent that the Appellant is not challenging his conviction under Section 307/34 IPC.

17. Ms.Rajdipa Behura, APP for the State, while refuting the contentions of the Appellant, submitted that the testimony of PW-1 Smt.Ramesh Kumari and her two sons i.e. PW-2 Sh.Raj Kumar and PW-3 Sh.Sushil Kumar is sufficient to prove that the Appellant Madhusudan shared the common intention with his co-convict Manoj to eliminate the family of Sh.Khem Raj to inherit the property in Hari Nagar as mother of Manoj also claimed her share in that property of which she was deprived of. It has been further submitted by learned APP for the State that FIR is not an encyclopedia. Taking into consideration the critical condition of injured Smt.Ramesh Kumari and

the mental trauma, she has undergone, though initially she did not name the co-accused, in the supplementary statement, she not only name the co-accused (Appellant before us) but also described his role. Learned APP for the State further submitted that Appellant Madhusudan refused to take part in TIP, hence adverse inference could have been drawn against him. Learned APP for the State submitted that from the testimony of material prosecution witnesses i.e. PW-1 Smt. Ramesh Kumari and her two sons i.e. PW-2 Sh.Raj Kumar and PW-3 Sh.Sushil Kumar, the role and identification of Appellant Madhusudan has been established beyond reasonable doubt. Thus, he has been rightly convicted and sentenced by learned Trial Court for committing the offence punishable under Section 302/307/34 IPC. Thus, prayer made by her before this Court is to uphold the conviction of the Appellant Madhusudan. Learned APP for the State has relied upon Associated Cement Co. LTd. v. Keshavnand AIR 1998 SC 596, Rotash v. State of Rajasthan 2007 Cri.L.J. 758, State v.Subhash Chander @ Sibhash @ Yashpal @ Amarjeet 2000 Cri.L.J. 1908, Tahir v. State (1996) 3 Supreme 48, State v. Navjot Sandhu @ Afsan Guru 2005 Cri.L.J. 3950, Raman Bhai Narain Chai Patel & Ors. v. State of Gujarat (2001) 1 SCC 358, and State of Maharashtra v. Kamlakar Tanaji Shinde (2010) Bom CR (Cri) 621 in support of her contentions.

18. We have considered the submissions made by learned counsel for the Appellant and learned APP for the State. We have also very minutely perused the Trial Court Record and the case law cited at bar.

19. We may, at the outset, note that this appeal needs to be decided mainly on the testimony of PW-1 Smt.Ramesh Kumari - the complainant

and that of medical evidence as well statement of Investigating Officer who recorded the first statement as well the supplementary statement of the complainant immediately after the occurrence. In view of this, the case law cited by learned APP for the State is not of much relevance to the facts of this case.

20. For the purpose of decision of this appeal, we have to consider the testimony of PW-1 Smt.Ramesh Kumari, who is the only material witness to prove the identity and the role played by the Appellant Madhusudan and whether he could be convicted for the offence punishable under Section 302 IPC with the aid of Section 34 IPC for sharing common intention with co-convict Manoj @ Mannu. The various statements made by PW-1 Smt.Ramesh Kumari to the police and before the Court are as under :-

First statement Ex.PW1/A made by Smt.Ramesh Kumari to the police on 18.07.1991 after being decalred 'fit to make statement' at 3.15 am on the basis of which rukka was prepared and FIR was registered

Smt.Ramesh Kumari stated that she alongwith her husband and two sons namely Sushil Kumar aged about 21 years and Raj Kumar aged about 17 years, was residing at C-160, Hari Nagar and her one daughter namely Anuradha was already married and residing in Subhash Nagar alongwith her husband. Meera, sister of her husband was residing with her husband Sh.Baldev Raj Luthra and family at Chandigarh and had five children i.e. three sons and two daughters. The names of three sons of Meera have been given as Bantu, Babloo and Mannu. Mannu was youngest and aged about 17-18 years. While other two elder sons were

employed in Chandigarh, Mannu was running a shop. She stated that plot No.C-160, Hari Nagar was owned by her father-in-law Sohan Lal and about three years back, her father-in-law executed a will in favour of her husband in respect of that plot. After sometime, her father-in-law expired. Her sister-in-law („nanad‟) and her family were aggrieved for the reason that they had half share in the property and they wanted to get their share at any cost. A quarrel had also taken place on this issue about one year prior to this incident.

On 17.07.1991 at about 9.00 pm Mannu, youngest son of her „nanad‟ came to their house alongwith his friend, who was also of his age. When she asked them whether they would like to have food, Mannu informed that they had already taken food at some hotel. Then Smt.Ramesh Kumari insisted for tea to which Mannu agreed. After taking tea, Mannu and his friend went out for a stroll. They returned at about 11.00 pm and slept. Her two sons were also sleeping in the adjoining room on the terrace and she alongwith her husband was sleeping on the ground floor. At about midnight, after hearing some noise, she woke up and saw Mannu and his associate holding knives in their hands. When she tried to raise alarm, she found tape being affixed on her mouth. She removed the tape and at that time, Mannu was standing near her while his associate was standing near her husband. Mannu was saying 'jaldi se chhaku se khatam karo‟ and was insisting for attacking with knife quickly. While Mannu stabbed her abdomen, Mannu's associate attacked her husband many times with the knife. On hearing the noise, her son Sushil came down and Mannu and his associate ran out bare footed from the back door. On hearing the noise,

the neighbours also gathered and her sons with the help of neighbours removed them to hospital. Mannu and his associate had left their bag, suitcase and shoes at their house and Mannu as well as his associate have been seen very clearly by her and her sons as well as by neighbours who can be identified if shown to them.

Supplementary statement made by PW-1 Smt.Ramesh Kumari to the police on the same day i.e. 18.07.1991 (As per PW-36 - the Investigating Officer this statement was recorded by him on 18.07.1991 at 4.20 am)

In her supplementary statement, Smt.Ramesh Kumari while confirming the statement Ex.PW1/A which had been read over to her, she stated that due to her injuries and shock due to the death of her husband and being nervous, she could not earlier state that maiden name of her „nanad‟ was Surender Kumari and after her marriage, she was given the name Meera by her in-laws and she was known as Meera in her matrimonial home. Meera was unhappy as Sh.Sohan Lal, her father had willed house No.C-160, Hari Nagar in favour of his son Khem Chand @ Khem Raj thereby depriving her (Meera) of her share. Only some cash was deposited in the bank for the marriage of children of Meera. Meera had brain washed her son Manoj Kumar @ Mannu to finish the family of the complainant and only in that case, they (family of Meera) could inherit that property. On 17.07.1991, Manoj @ Mannu, younger son of her 'nanad' Meera (Surender Kumari) alongwith his friend, whose name was disclosed as Madhusudan @ Madhu - a friend and neighbour of Mannu, by her son Sushil to her (PW-1 Ramesh

Kumari), her husband and another son Raj Kumar and who had gone out after having tea. She further stated that on the same night at about 11.00 pm Mannu rang the door bell and the door was opened by her sons Sushil and Raj Kumar from the main gate market side. On hearing the noise, she also came to the gate and saw Mannu and Madhu with two other boys. At that time, her son Sushil questioned Mannu in her presence that when earlier he (Mannu) had told them that he alongwith Madhu had come from Chandigarh, then who were the other two boys accompanying them. On this, Mannu replied that the boy standing ahead was Kanwaljit @ Bittoo and other boy standing on the back side was Kuldeep Rai @ Tony who were also his friends and neighbours. Both of them would take him (Mannu) and Madhu in the morning. Thereafter Tony and Bittoo returned. On the same night about 2.00 am, she noticed tape being affixed on her mouth as well as on her husband's mouth and all the four boys were standing there with knives in their hands. She became nervous. Mannu was telling Madhu, Kanwaljit @ Bittoo and Kuldeep Rai @ Tony to finish them quickly with knife. When she loosened her tape and raised alarm, all the four attacked her and her husband with knife and injured them. On hearing the noise, her son Sushil came running down and on hearing the noise of someone running on the terrace, all the four boys Manoj @ Mannu, Madhusudan @ Madhu, Kanwaljit @ Bittoo and Kuldeep Rai @ Tony ran towards the main gate with knives in their hand. She being in injured condition, was not able to take care of herself but at that time, she again heard some noise of some running towards the back door of the house. When all the four boys left their bedroom, Madhu was bleeding from his left hand

finger. All the four boys were wearing pant and shirt when she saw them running from her bedroom.

On 17.07.1991 at about 9.00 pm when Mannu's friend Madhusudan came to their house and had tea, he was wearing cream colour T-shirt with black colour and 'dhan' colour pant with dots. Madhu was looking like an 'Awaara' type boy so she looked towards him very carefully but did not say anything because of Manoj @ Mannu and that is why she had disclosed the description of clothes worn by Madhu on that night. After having tea Mannu and Madhu went out and returned at about 11.00 pm with two friends Bittoo and Tony and at that time also Madhu was wearing the same T-shirt. About one year prior to that also, her „nanad‟ Surender Kumari (Meera) came to Delhi alongwith her son Mannu and claimed half share in the property saying that she would claim her share at any cost and would not rest till then. At that time, they had quarrel also and her brother Devraj was also called by her son Sushil Kumar, who tried to counsel her „nanad‟ Surender Kumari (Meera) that something would be done for her children. When her husband visited Chandigarh about 4-5 months prior to this occurrence, through him she (Ramesh Kumari) came to know about the annoyance of Surender Kumari @ Meera after returning to Chandigarh and that Surender Kumari @ Meera was insisting for her half share in the property and Mannu used to support her and both of them were very unhappy on this issue.

The version of the occurrence given by PW-1 Smt.Ramesh Kumari before the Court on 20.11.92 is as under :-

„...........On the same night at about 2/2.15 A.M. I was awakened

by some noise in the room and found all the four accused persons present there holding knife in their hand. All the four accused then surrounded myself and my husband. The accused then swiftly pasted tapes on our mouths and then started stabbing us. I received stab wound at my abdomen. All the four also stabbed my husband several times. I was given three more stabs on my body which I had been warding off by folding my body but the accused lifted my husband and gave him several knives blows. I tried to raise alarms and occurred „Mannu is it you‟ and then Mannu exhorted his co-accused „Chheti wadh dio inhanoo‟ (kill them immediately). I had been raising alarms „save save‟ which attracted my son Sushil who came down but he was still at the staircase then all the accused fled away from there. This occurrence was witnessed by my sons Sushil and Raj Kumar and thereafter many people from the Mohalla gathered there. We were then removed to DDU hospital by our sons and mohalla people. In the hospital we were taken to emergency whereafter few minutes my husband breath his lost (sic) and expired.....................‟

In her cross examination recorded on 17.08.1993, Smt. Ramesh Kumari stated :

„..............I had mentioned in my first statement that the boys have uttered that he be cut quickly which I had narrated to the police in Punjabi (chheti wad diyo). I have not stated in my first statement that this entire incident was witnessed by my son Raj Kumar. I have not stated that the boy with Mannu had only stabbed my husband. I have stated that Mannu had stabbed my husband. Vol. he had also stabbed me (confronted with Ex.PW1/A) where the fact of stabbing the husband or witness by Mannu is not recorded). ........................

.........................During the night when incident took place I was awaken by the knife blow in my stomach and at that time my mouth was shut with a tape. All the incidents like stabbing, tapping of mouth and my awakening happened just in a moments. Which of the things happened first, I cannot say. Although in my chief examination, I have stated that when I woke up immediately, tape was applied on my mouth, all these things happened so

instantaneously that there was no spacing between one incident and the other. There were four persons and probably one of them applied tape and other stabbed me. Similarly, the moment I received the knife blow I removed the tape and started crying. .............................‟

In her cross examination recorded on 18.08.1993, Smt. Ramesh Kumari stated :

„..............No doctor has enquired from me in the hospital. Doctor has not put me any question as to how I have received injuries and at whose hands. Vol. There were other persons to tell. I do not know if Dr. had enquired from my son in my presence about my injuries. (Witness is time and again uttering that her condition was very weak and there were many persons around and that she was immediately taken to operation theatre. After I had been operated the two hours afterwards in the morning of 18th I regained my consciousness and when the doctors certified that I was conscious to make a statement then police recorded my statement again. I cannot say nor I noticed on my regaining consciousness, if my sons were by my side or not as I saw the police officials only.

I have seen Madhusudan even earlier as he had come to my house even before 17.7.91 and he had come alongwith Manoj. They had come about one or one-and-half month ago but I cannot give the date. Even at that time, the accused Madhusudan came in the night and had departed in the morning. At that occasion I had no talk with Madhusudan nor I enquired him about name and address etc. Vol. I enquired from Manoj who told me that he was his friend. During his stay at my house I did not hear Manoj and Madhusudan calling by their names as my guests had come and I did not pay any attention. I had not mentioned the factum of the visit of Madhusudan and Manoj before 17th July, 1991 either in my complaint or in my statement. It is wrong to suggest that accused Madhusudan and Manoj had not visited my house about one and half months earlier, and that I have made deliberate improvement on this point. On 17.7.91 at 9 p.m. the door was opened by my son Sushil

Kumar. On that day there was no other guest in my house. It was only on 17.7.91 when I served accused Manoj and Madhusudan tea. I had enquired from Madhusudan about his name and address, and he told to me. On 18th morning when I regained my consciousness that my statement was recorded by the police. I had disclosed the name of Madhusudan. (Conft. With Ex.PW1/A where the name of accused Madhusudan does not appear in any context.) It is not that when I regain conscious in the 18th morning that my son Sushil Kumar disclosed the name of Madhusudan. I have not stated to the police that the name of Madhusudan was disclosed by my son Sushil Kumar. (Conft. With portion A to A where it is so recorded of Ex.PW1/DA.) .......................‟

In her cross examination recorded on 23.10.1993, Smt. Ramesh Kumari stated :

„..............It is correct that in my first statement, there was no mention of the two boys who had gone back but I mentioned of the two who slept in our house. Vol. At the time of attack, there were four in all. In my first statement I had mentioned about all the four assailants. (Confronted with Ex.PW1/A, portion X to X-1 where there is mention of Mannu and his collegue only). We had reached hospital at about 2.30 A.M. It might have taken 15 to 20 minutes from starting from out house to reach hospital. After 5 minutes of our arrival, police arrived. They recorded my statement after about 5/7 minutes and took about 15/20 in recording the statement.

When we reached the hospital, no injection was administered to me. I cannot give time when I was taken to operation theatre but it took about 1/2 or 3/4 hour from our arrival in hospital. Before operation, I was given injection to become unconscious. ...............‟

21. PW-19 Dr.A.K.Singh, the Consultant Surgeon at DDU Hospital has declared Smt.Ramesh Kumari - the complainant fit for statement at 3.15 am vide endorsement Ex.PW19/D on the MLC. The testimony of this witness is material for the reason that rukka had been sent at 4.00 am

by the Investigating Officer Inspector Yashwant Singh after the patient was declared fit for statement at 3.15 am and made a detailed statement Ex.PW1/A. However, there is detailed supplementary statement dated 18.07.1991 giving additional facts and names and numbers of assailants, reference of which we do not find in the rukka, suggesting that it was recorded some time after sending the rukka. The question staring at our face is as to when, where and what was the condition of the maker of the statement i.e. PW-1 Smt.Ramesh Kumari at the time of making supplementary statement as we do not find she being declared fit to make statement again after the surgery.

22. PW-19 Dr.A.K.Singh had made statement to the effect that on 18.07.1991 Dr.P.Sharma, ACMO, DDU Hospital examined injured Sh.Khem Raj and Smt. Ramesh Kumari. While Sh.Khem Raj was declared 'Brought Dead', Smt.Ramesh Kumari was referred to Surgery Department. PW-19 Dr.A.K.Singh further stated that he provided the treatment to Smt.Ramesh Kumari in the Surgery Department and declared her fit to make statement vide his endorsement Ex.PW19/D. He conducted the surgery on PW-1 Smt.Ramesh Kumari. While describing the nature of injuries as dangerous, he explained as under :

"The injury mentioned on Ex.PW19/E under the title „dangerous - greater omentum is a structure found inside the abdomen which is attached to the transverse colon. This structure is very vascular and one of the vessel was found bleeding and there was lot of blood in the abdominal cavity."

23. PW-36 Inspector Yashwant Singh, the investigating officer stated about his departure alongwith staff from PS vide DD No.31-A Ex.PW36/A for the spot and that on finding the injured being removed to

hospital, directing SI Jagdish to guard the spot, he left for the hospital where he met SI Raj Singh who produced MLCs of Sh.Khem Raj and Smt. Ramesh Kumari. The relevant portion of his deposition as to when the statement Ex.PW1/A and the supplementary statement were recorded, is extracted hereunder :-

„XXX XXX by Sh.P.D.Sharma for accused Madhusudan.

The doctor had made endorsement Ex.PW19/D on the MLC of Ramesh Kumari regarding the fitness of Ramesh Kumari on my request. Statement Ex.PW1/A of Smt.Ramesh Kumari and endorsement Ex.PW36/B are in my hand. At the time of recording the statement, doctor was not present near me. I sent the rukka at about 4 AM for registration of the case. The description of accused Madhusudan was not given nor his descriptive nature was mentioned. However, one companion is referred in the statement of Ramesh Kumari but neither his name nor his feature was mentioned. After sending the rukka, I came to the mortuary where the dead body of deceased Khem Raj was sent. We took me about 10/15 minutes. At about 4.20 AM I again came to know the condition of Ramesh Kumari. On second time, I did not obtain permission on endorsement from the doctor about the fitness of Ramesh Kumari to give the statement. It is wrong to suggest that I wrongly recorded the statement of Ramesh Kumar.‟

24. After noticing the above sequence of events, we were unable to comprehend as to when and where i.e. in Emergency Ward or Surgical Ward, the first statement Ex.PW1/A of PW-1 Smt.Ramesh Kumari, which formed basis of registration of FIR was recorded and when FIR was registered at 4.10 am i.e. within 10 minutes of dispatching the rukka at 4.00 am, how a detailed supplementary statement could be recorded at 4.20 am by the IO without ascertaining her fitness from the doctor. We

requested learned APP for the State to satisfy us on the following aspects:

(i) Information regarding the occurrence is received on 18.07.1991 at 2.25 am and it must have taken a few minutes for the duty officer to record the DD No.66-B and handover the same to ASI Raj Singh and HC Jagdish for verification/necessary action. In any case, they could not have left the police station before 2.30 am.

(ii) Inspector Yashwant Singh, after joining six police officials excluding driver, had also left for the spot at 2.30 am in official vehicle. Then how Inspector Yashwant Singh could not find ASI Raj Singh at the spot when the time of leaving the police station is the same and the distance to be covered for the spot as well to the hospital is also the same.

(iii) As per MLC of Sh.Khem Raj, the time of his arrival in the hospital is 2.35 am. First Sh.Khem Raj has been examined by Dr.P.Sharma and declared 'Brought Dead'. Then Smt.Ramesh Kumari was examined by Dr.P.Sharma and referred to surgical ward. Smt.Ramesh Kumari had been declared fit to make statement by PW-19 Dr.A.K.Singh at 3.15 am. As per version of PW-1 Smt.Ramesh Kumari, after her medical examination, she was sent for surgery and that she was unable to speak. She has stated that other persons were present there to give the account of incident. As per prosecution case, none of the eye witnesses was available when the SHO visited the hospital as PW-2 Sh.Raj Kumar and PW-3 Sh.Sushil Kumar (sons of deceased Sh.Khem Raj and complainant Smt.Ramesh Kumari) had left the hospital to inform the relations. They reached home only when the investigating team was already there. If it

was so, then after being declared fit for statement at 3.15 am, even if the Investigating Officer started recording her statement at 3.16 am and completed within less than 45 minutes, seeing her critical condition (as described by PW-19), injured Smt.Ramesh Kumari was in dire need of surgery. The injured must be undergoing surgery at 4.00 am. The Investigating Officer became busy in completing the necessary formalities for sending the body of Sh.Khem Raj to Mortuary. Thus, within 20 minutes, how PW-36 could have been with the injured when she was not even in a condition to make detailed supplementary statement wherein for the first time, not only the number of the assailants was increased from two to four but even the complete details of their names with alias and description of clothes and roles were described.

(iv) The Supplementary statement of PW-1 Smt.Ramesh Kumari that implicates Appellant Madhusudan being recorded at 4.20 am as stated by the Investigating Officer i.e. within 20 minutes of sending the rukka, could have been recorded only in the Operation Theatre for the reasons that : (a) they were brought to the hospital at 2.35 am and she was examined after her husband was examined and declared 'Brought Dead' and she was referred to Surgery Department; (b) declared 'fit for statement at 3.15 am by the Consultant Surgeon i.e. PW-19 Dr.A.K.Singh; (c) her statement was recorded till 4.00 am and she must have been taken for surgery thereafter. So only in the Operation Theatre, the SHO could have had access to the patient having suffered the nature of injuries, i.e. one of the vessel was found bleeding and there was lot of blood in the abdominal cavity. Thus, she could not have made any detailed supplementary statement which we have earlier referred to.

(v) PW-11 Sh.Devraj (brother of PW-1 Smt.Ramesh Kumari) seems to be the only relative who was informed telephonically by PW-3 Sh.Sushil Kumar before leaving for the hospital, then who were those relatives who were to be informed by visiting them personally leaving their mother in critical condition and dead body of their father in the hospital especially when PW-2 Sh.Raj Kumar and PW-3 Sh.Sushil Kumar were not having any mode of conveyance and even the injured was removed to the hospital by hiring the TSR which left after dropping them at the hospital.

25. Learned APP for the State conceded that from the record available in the Court, these questions cannot be answered. We feel that the treatment record maintained in the Surgery Ward could have given a fair view of the condition of the patient at 4.20 am and this record has not been seized by the Investigating Officer for the obvious reason that it would have proved that PW-1 Smt.Ramesh Kumari was in OT undergoing surgery at that time. This inference is on the basis of version of PW-1 Smt.Ramesh Kumari that her condition was very weak that she was immediately taken to the Operation Theatre. After she was operated and two hours thereafter on the morning of 18th, she regained consciousness and then was certified by the Doctor to be fit to make statement.

26. We rest this matter here only for the reason that in the absence of record from Surgery Ward, these question have to remain unanswered and the statement of PW-36 Inspector Yashwant Singh in this regard has to be discarded for the reason that PW-1 Smt.Ramesh Kumari was not even in a position to make any supplementary statement at 4.20 am.

27. Now the question that needs consideration is whether Appellant Madhusudan can be held guilty under Section 302 IPC with the aid of Section 34 IPC for committing the murder of Sh.Khem Raj when PW-1 Smt. Ramesh Kumari had attributed fatal injuries to Khem Raj to be caused by Co-convict Manoj @ Mannu.

28. It is the mandate, obligation and duty of Judges at all levels to engage themselves in the journey of discovering the truth on which the entire judicial system is based. It should be the Court's endeavour to find out where the truth lies as truth alone has to be the foundation of justice. (Maria Margarida Sequeria Fernandes and Ors. vs. Erasmo Jack de Sequeria (Dead) through L.Rs. AIR 2012 SC 1727)

29. We have already quoted the relevant extract of testimony of PW-1 Smt.Ramesh Kumari wherein she has stated before the Court that Mannu had caused injuries to her husband and after being instigated by Manoj @ Mannu by saying „Chheti Wad Do Inano‟ (kill them immediately), she does not speak of any blow being given by Appellant Madhusudan to her or her husband. If the motive behind the occurrence was to enable the family of the Manoj to inherit the property No. C-160, Gandhi Ashram, Hari Nagar which was willed in favour of deceased Sh.Khem Raj by his (deceased) father and Madhusudan shared any common intention to eliminate the entire family, their first attempt would have been to kill the two sons of Sh.Khem Raj and Smt.Ramesh Kumari who were stated to be sleeping in the adjoining room at the first floor to ensure that they do not survive to inherit the property or to come to the rescue of their parents.

30. Appellant Mannu must be having grudge against his maternal

uncle and his family as his mother was deprived of her share in the property. Appellant Madhusudan might be aware of ill-will and the grievances of his associate Manoj without knowing the intention of Manoj to kill his maternal uncle or his family members. The mere fact that Sh.Khem Raj had seventeen injuries on his body and injuries No.2, 4, 5, 14 and 15 were sufficient to cause death and all these blows being attributed to Manoj @ Mannu but the nature of injuries suffered by Smt.Ramesh Kumari was such that she was conscious and oriented when brought to hospital, is sufficient to prove that Appellant Madhusudan did not share the common intention with his co-convict Manoj to kill Sh.Khem Raj or his family.

31. In Dharam Pal & Ors. v. State of Haryana : AIR 1978 SC 1492, the Apex Court laid down the following tests for Section 34 IPC to be applicable against the co-accused and held as under:-

„It may be that when some persons start with a pre-arranged plan to commit a minor offence, they may in the course of their committing the minor offence come to an understanding to commit the major offence as well. Such an understanding may appear from the conduct of the persons sought to be made vicariously liable for the act of the principal culprit or from some other incriminatory evidence but the conduct or other evidence must be such as not to leave any room for doubt in that behalf.

A criminal Court fastening vicarious liability must satisfy itself as to the prior meeting of the minds of the principal culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former. There is no law to our knowledge which lays down that a person accompanying the principal culprit shares his intention in respect of every act which the latter

might eventually commit. The existence or otherwise of the common intention depends upon the facts and circumstances of each case. The intention of the principal offender and his companions to deal with any person who might intervene to stop the quarrel must be apparent from the conduct of the persons accompanying the principal culprit or some other clear and cogent incriminating piece of evidence. In the absence of such material, the companion or companions cannot justifiably be held guilty for every offence committed by the principal offender.‟

32. It is settled legal position that when the criminal act is done by several persons in furtherance of their common intention, it pre-supposes a prior meeting of mind. For enjoining constructive liability under Section 34 IPC on Madhusudan, prosecution was required to establish that murder of Khem Raj was committed by Manoj pursuant to predesigned plan with Appellant Madhusudan. From the facts and circumstances of this case and surrounding circumstances, we are unable to gather that Madhusudan shared common intention with Manoj who committed murder of his maternal uncle Khem Raj.

33. The facts of the case and the testimony of material prosecution witness i.e. PW-1 Smt.Ramesh Kumari when examined in the light of above settled legal position, the inescapable conclusion is that the Appellant Madhusudan did not share the common intention with Manoj to kill Sh.Khem Raj. Thus, his conviction under Section 302/34 IPC for sharing the common intention with his co-convict Manoj cannot be maintained. He can only be held liable for the injuries attributed to him i.e. for causing dangerous injuries to PW-1 Smt.Ramesh Kumari. Thus, the appeal filed by the Appellant Madhusudan deserves to be allowed to

the limited extent i.e. he is to be acquitted of the offence punishable under Section 302/34 IPC.

34. In view of above, the Appellant Madhusudan is acquitted of the offence punishable under Section 302/34 IPC. His conviction under Section 307/34 IPC is maintained.

35. The sentence awarded to the Appellant Madhusudan for committing the offence punishable under Section 307/34 IPC was RI for three years with fine of Rs.500/- and in default, RI for one month. As per the nominal roll, Appellant Madhusudan remained in judicial custody in this case for seven years, eight months and fifteen days as on 12.04.1999. The Appellant is on bail and it is submitted that fine has already been deposited by him.

36. Resultantly, appeal stands partly allowed to the above extent.

37. Bail bonds of the Appellant stands discharged. TCR be sent back alongwith copy of this order.

(PRATIBHA RANI) JUDGE

(REVA KHETRAPAL) JUDGE MAY 19, 2014 „st‟