Delhi High Court
Bobby @ Robin vs State on 28 October, 2014
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : October 17, 2014
Judgment Delivered on : October 28, 2014
+ CRL.A.491/2013
ROHIT @ NANHE .....Appellant
Represented by: Mr.Chetan Lokur, Advocate with
Mr.Inderjit Singh Kapur, Advocate
versus
STATE ..... Respondent
Represented by: Ms.Aashaa Tiwari, APP
Insp.Harish Kumar and SI Kuldeep
Yadav, PS Connaught Place
CRL.A.834/2013
VINOD KUMAR @ GANJA .....Appellant
Represented by: Ms.Aishwarya Rao, Advocate
versus
STATE ..... Respondent
Represented by: Ms.Aashaa Tiwari, APP
Insp.Harish Kumar and SI Kuldeep
Yadav, PS Connaught Place
CRL.A.838/2013
BOBBY @ ROBIN .....Appellant
Represented by: Mr.Sitab Ali Chaudhary, Advocate
with Mr.Hanjala Kazim, Advocate
versus
STATE ..... Respondent
Crl.A.No.491/2013 & conn.matters Page 1 of 45
Represented by: Ms.Aashaa Tiwari, APP
Insp.Harish Kumar and SI Kuldeep
Yadav, PS Connaught Place
CRL.A.823/2013
VIJAY @ BIJU .....Appellant
Represented by: Ms.Sunita Arora, Advocate for
Mr.Krishan Kumar, Advocate
versus
STATE ..... Respondent
Represented by: Ms.Aashaa Tiwari, APP
Insp.Harish Kumar and SI Kuldeep
Yadav, PS Connaught Place
CRL.A.1015/2013
DHANJEET @ DHANNE .....Appellant
Represented by: Ms.Sonali Karwasra Joon,
Advocate with Mr.Gaurav Bhatt,
Advocate
versus
STATE ..... Respondent
Represented by: Ms.Aashaa Tiwari, APP
Insp.Harish Kumar and SI Kuldeep
Yadav, PS Connaught Place
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS.JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J.
1. Criminal law was set into motion when at around 10:45 PM on
June 15, 2011, an entry was made in the PCR form Ex.PW-8/A to the
effect that one Noor Jahan has informed over telephone that a quarrel and
stabbing by knives is taking place near Shivaji Stadium opposite Rivoli
Cinema. The aforesaid information was flashed to Police Station
Connaught Place where HC Ashok Kumar recorded DD No.37A, Ex.PW-
7/A, noting the aforesaid information.
2. Two PCR vans Nos.V-26 and C-8 present near the spot i.e.
pavement opposite Rivoli Cinema also picked up the wireless message
flashed and proceeded to the spot. On reaching the spot the PCR officials
found two male persons viz. Tatiya (deceased) and Rohit PW-12 and one
female Lachhi PW-4, lying injured. PCR Van No.V-26 removed Lachi to
RML Hospital and PCR Van No.C-8 removed Tatiya and Rohit PW-12,
to RML Hospital. Part-II of PCR Form Ex.PW-8/A, contains recordings
with respect to removal of (three) injured persons to RML Hospital by
PCR van No.V-26, the relevant portion whereof reads as under:-
Report Received from VAN
BEGGARS KA QUARREL HAI HAMARI GADI PAR BHI
PATHAR MAR RAHE HAI 15/06/2011 22:59:28 EK LADY INJ
HAI HOSP LAI JA RAHE HAI EK KO CHAKU LAGA HAI JO
PAHLA HI RML HOSP JA CHUKA HAI 15/06/2010 23:32:29
LADY KO HOSH MAI D/CT RML HOSP KAI H/O KIYA
15/06/2011 23:39:22 SAME CALL Sl. NO 66 OF V-26
15/06/2011 23:59:05 TATIA S/O BAJRANG KALE AGE 24/26
YRS R/O PATRI HANUMAN MANDIR C.P. KO NANHAI S/O
GOGI & USKE 3/4 SATHIO NAI STOMACH MAI RIGHT
SIDE MAI CHAKU MARA HAI USKO TATIA KA JIJA RAJU
GULATI TSR MAI RML HOSP LAYA THA DOCTOR
NALB/DEAD DECLARE KAR DIYA HAI C/ROOM INF
15/06/2011 23:59:56 DEAD KAI HALAT FROM T-41"
(Emphasis Supplied)
3. Being handed over a copy of DD No.37A, accompanied by SI Ram
Babu PW-13 and Ct.Raghu Nandan PW-21, Insp.Ravi Kant PW-23,
reached the spot. On learning that the (three) injured persons have been
removed to RML Hospital, the aforesaid three police officials proceeded
to the hospital where they learnt that Tatiya had been declared brought
dead.
4. Thereafter Insp.Ravi Kant PW-23, collected the MLCs Ex.PW-
14/A, Ex.PW-14/B and Ex.PW-15/A of the deceased, Lachi PW-4 and
Rohit PW-12 respectively.
5. Being relevant, we note the following portion of the MLC Ex.PW-
14/A of the deceased:-
"BROUGHT BY H/C Indrapal 330/PCR C 8
DATE & HOUR OF ARRIVAL 15/6/11; 11.00 pm
Stab wound of size 8 x 6 cm & (penetrating into abdominal
cavity) illegible in right hypochondrial & Rt. Lumbar area of
abdomen with exposure of omentium intestine."
6. Being relevant, we note the following portion of the MLC Ex.PW-
14/B of Lachi PW-4:-
"BROUGHT BY ASI Gajender V-26/PCR
DATE & HOUR OF ARRIVAL 15/6/11; 11.05 pm
"CIW extending from Rt. side of neck to back (Lt.) (obliquely)
(12 cm x 5 cm x 2 cm) (12 x 5 x 2 cm);
active bleeding"
7. Being relevant, we note the following portion of the MLC Ex.PW-
15/A of Rohit PW-12:-
"BROUGHT BY H/C Indrapal 330/PCR C 8
DATE & HOUR OF ARRIVAL 15/6/11; 11.00 pm
Incised wound on head R side of midline: 2 cm x 0.5 cm"
8. At the hospital Insp.Ravi Kant PW-23 met Raju Gulati PW-22,
who claimed to have knowledge as to how the deceased, Lachi and Rohit
were injured. Insp.Ravi Kant recorded the statement Ex.PW-22/A of Raju
Gulati and made an endorsement Ex.PW-23/A thereunder at 00:35 hours
on June 16, 2011. He handed over the same to Ct.Raghu Nandan PW-21
for FIR to be registered. Ct.Raghu Nandan took the rukka to PS
Connaught Place where ASI Ramesh Tirki PW-1, recorded the FIR
No.115/2011, Ex.PW-1/A.
9. The statement Ex.PW-22/A of Raju Gulati, in Hindi, loosely
translated reads as under:-
"I reside on a pavement at Hanuman temple, BKS Marg,
New Delhi with my family and engaged in the business of
stitching school bags at Singhara Chowk, Nabi Karim.
Today at about 10:30 PM I along with my wife Shanno and
son Rohit was sleeping on a footpath near Tiwari shop
towards State Emporium at BKS Marg. My brother-in-law
along with his wife Lachi and infant daughter was sleeping
near us. At that time Rohit @ Nanhe, son of Gogi who
applies Mehendi at Hanuman Temple, along with his friends
Vijay @ Biju, Dhanjeet @ Dhanne, Vinod @ Ganja and
Bobby @ Robin who toil around Hanuman Temple came
there. I know the aforesaid five boys prior to today. Nanhe,
Biju and Dhanne were having long-long knives in their
hands. Nanhe and his friends came to us and asked from us
that who amongst us had sold mud instead of smack to Biju
today afternoon and quarreled and hit Biju on his head
when he had complained. They insisted us to name the
person so that they could take revenge from said person.
Tatiya told said persons that we do not know said person
and that they should go from there upon which Nanhe and
his associates got very angry and Nanhe stabbed Tatiya on
his stomach with the knife held by him in his hand. On
seeing this Lachi and all of us ran to save Tatiya upon which
Dhanne hit Lachi on her waist with a knife held by him in
his hand. Lachi fell down after getting injured. Thereafter
Biju charged towards us whereupon his son Rohit
intervened in between. Biju hit Rohit on his head with the
knife held by him in his hand. In the meantime Vinod and
Bobby had picked up stones in their hands and were
stopping people from coming to their rescue. After the
incident the aforesaid five persons fled from the spot.
Thereafter the police came at the spot and along with
Tatiya, Lachi and Rohit took me to the hospital where Tatiya
was declared brought dead by the doctors while Lachi and
Rohit are getting treatment. Nanhe, Dhanne, Biju, Vinod @
Ganja and Bobby @ Robin with a common intention
attacked us and murdered Tatiya and injured Lachi and
Rohit. Legal action be taken against them. I have heard my
statement. The same is correct."
10. Around the time when the incident of stabbing took place,
appellant Dhanjeet @ Dhanne was beaten by the public when he tried to
run away from the spot. He was handed over to the police. He was taken
to RML Hospital where his medical examination was conducted and
MLC Ex.PW-15/B was prepared. Being relevant, we note the following
portion of the MLC Ex.PW-15/B of Dhanjeet @ Dhanne:-
"Date & Hour of Arrival 16/06/2011 at 12:40 AM
Two incised wounds on head one in centre, one on right side of
head.
CLW on left cheek 1 cm in length.
CLW on right side of neck 3 cm in length
Active bleeding
HISTORY A/H/O assault as told by the pt. himself.
MARKS OF IDENTIFICATION H/O drug addiction or ENT
Bleed."
11. Dhanjeet @ Dhanne made a disclosure statement and got recovered
a knife concealed in the bushes in a park located near the place of
incident; appellants Rohit @ Nanhe and Vijay @ Biju after their arrest
made disclosure statements and got recovered knives concealed under the
stones lying near the place of incident and appellants Vinod @ Ganja and
Robin @ Bobby got recovered stones from a service lane near the place
of incident.
12. Surprisingly Insp.Ravi Kant PW-23, filed an application Ex.PW-
23/D1, before the Duty Magistrate, Patiala House Courts seeking police
custody of appellants Rohit @ Nanhe, Dhanjeet @ Dhanne and Vijay and
Biju for a period of two days, which application was allowed. Being
relevant, we note the following portion of the application Ex.PW-23/D1:-
"It is humbly submitted that above mentioned three accused
have been arrested on 16.06.2011 in case FIR No.115/11, dt.
16.06.2011, U/S 148/149/302/307/34 IPC, PS Connaught
Place, Delhi. They are named in FIR and have confessed their
crime. As per their disclosure, they have hidden the weapon of
offence at a place known to them and can get it recovered. The
source of weapon of offence is also to be identified. Their detail
custodial interrogation is required to find out exact sequence of
events."
13. Regretfully, said conduct of Insp.Ravi Kant has obviously cast a
cloud over the knives got recovered pursuant to their disclosure
statements by Dhanjeet, Rohit and Vijay.
14. On June 18, 2011 Dr.Manoj Kumar Handsa PW-5, conducted the
post-mortem of the dead body of the deceased and prepared the post-
mortem report Ex.PW-5/A. The external injury found on the person of the
deceased is as follows:-
"Surgically bandaged wound present on right lumbar and right
hypochondrial region. On removal of the bandage obliquely
placed wedge shaped stabbed wound of size 8cmx4cmxcavity
deep with sharp upper outer angel present 6.5 cm above the
highest point of right iliac crest and 23.5 cm below the roof of
the right axilla and the lower inner blunt angle present 3.5 cm
above right anterior superior iliac spine and 29.5 cm below
anterior border of right axilla. The wound shows herniation of
9cm long small intestinal loop along with dribbling of blood.
The lower margin of the wound shows beveling while the upper
margin was found over hanging. The stabbed wound cuts
through the subcutaneous tissue through the right eleven inter
coastal space making a cut of 6 cm size on the right antero
inferior border of liver and then puncturing the stomach
interior of size 2.5cm x 1cm just above pyloric acid. The
directions of the wound was found to be upwards inwards and
backwardly directed and the depth was found to be
approximately 14cm."
15. The post-mortem report Ex.PW-5/A of the deceased records that
the cause of death is due to hemorrhagic shock as a result of ante-mortem
stab injury caused on the abdomen of the deceased by a sharp pointed
single edged weapon and that the said injury found on person of deceased
is fatal in ordinary course of nature to cause death.
16. After conduct of post-mortem of deceased, the doctor handed over
the clothes worn by the deceased at the time of incident and his blood
sample on a gauze to Insp.Ravi Kant PW-23, who seized the same vide
memo Ex.PW-19/A.
17. On June 29, 2011 Dr.Trilok Chand PW-16, examined the MLCs of
Lachi and Rohit and opined that the injuries found on their person were
similar in nature as noted in the endorsements Ex.PW-16/A and Ex.PW-
16/B recorded in the MLCs Ex.PW-14/B and Ex.PW-15/A of Lachi and
Rohit respectively.
18. On February 10, 2012 Insp.Ravi Kant PW-23, Investigating
Officer, sent the knife (allegedly) recovered at the instance of appellant
Rohit @ Nanhe to Dr.Manoj Kumar Handsa PW-5, (the doctor who had
conducted post-mortem of the dead body of the deceased) for his opinion
regarding weapon of offence. Vide his opinion Ex.PW-5/B Dr.Manoj
Kumar Handsa opined that the (fatal) injury found on the abdomen of the
deceased is possible to have been caused by the knife (allegedly)
recovered at the instance of appellant Rohit @ Nanhe.
19. The clothes worn by the deceased at the time of incident; blood
sample of deceased on a gauze and knives (allegedly) recovered at the
instance of appellants Dhanjeet @ Dhanne, Rohit @ Nanhe and Vijay @
Biju were sent to the Forensic Science Laboratory for serological
examination. Vide FSL reports Ex.PW-17/A and Ex.PW-17/B it was
opined that blood group of deceased was B; human blood of B group was
detected on the knife (allegedly) recovered at the instance of appellant
Dhanjeet @ Dhanne and human blood was detected on the knife
(allegedly) recovered at the instance of appellant Rohit @ Nanhe, group
whereof could not be determined. (Be it noted here that the stones
(allegedly) recovered at the instance of appellants Vinod Kumar @ Ganja
and Bobby @ Robin were not sent to the FSL.)
20. Needless to state, the appellants were sent for trial.
21. Charges were framed against the appellants for having committed
offences punishable under Sections 148 IPC, Section 302 IPC read with
Section 149 IPC and Section 307 IPC read with Section 149 IPC. The
substance of the charge framed against the appellants was that they had
formed an unlawful assembly at about 10:30 PM on June 15, 2011 with a
common object. They armed themselves with deadly weapons at a
pavement near Hanuman Temple, for rioting and committing murder of
the deceased, Lachi and Rohit.
22. At the trial, the prosecution examined 23 witnesses. Apart from
examining the police officers associated with the investigation of the
present case, Raju Gulati, Lachi, Rohit and Shanno were examined as
PW-22, PW-4, PW-12 and PW-3 respectively.
23. Raju Gulati PW-22, deposed on the lines of his earlier statement
Ex.PW-22/A with variations regarding role attributed to the appellants,
which we shall be highlighting a little later. Being relevant, we note the
following portion of the cross-examination of the witness by appellants
Rohit @ Nanhe and Dhanjeet @ Dhanne:-
"It is incorrect to suggest that I am in the business of supplying
smack to people who come in their car. It is incorrect to suggest
that on the day of incident as well some people came in the car
and the dispute occurred on account of purchase of smack. It is
incorrect to suggest that accused Dhanne tried to save and even
threw stones on those people to make them leave. Vol. Dhanne
was beaten up by the public while he was trying to escape. It is
incorrect to suggest that accused persons used to dissuade me
from selling smack because of which I harboured ill-will
against them and implicated them falsely in the present case."
24. Lachi PW-4, wife of the deceased, Rohit PW-12 and Shanno PW-
3, deposed substantially in sync with what Raju Gulati had statement
Ex.PW-4/A.
25. Being relevant, we note the following portion of the cross-
examination of Lachi PW-4, by (all) the appellants:-
"I was taken to the hospital by the police on the date of
incident....We including Tatya, the deceased had no business
dealing of any kind with the accused persons. It is incorrect to
suggest that as per the police we were drug peddlers dealing in
smack....
....Rohit was also injured and was taken to the hospital by his
parents while I and Tatya were taken to the hospital by the
police....
It is incorrect to suggest that I was not present on the scene of
crime at the time of incident. It is incorrect to suggest that the
accused persons had never come to the spot on the date of
incident or that no such incident ever took place. It is incorrect
to suggest that the accused persons were not known to me or
that I have implicated them falsely at the instance of the police.
It is incorrect to suggest that I am deposing falsely at the
behest of the IO." (Emphasis Supplied)
26. Being relevant, we note the following portion of the cross-
examination of Rohit PW-12, by (all) the appellants:-
"I was taken to the hospital by a police vehicle along with my
father....It is correct that I had woken up on the hearing of cries
of Lachi and had not heard the quarrel which had taken place
before then. It is incorrect to suggest that I have deposed today
on the basis of tutoring by IO....I had seen the accused Nanhe
when he was giving knife blow to Tatya. The accused Nanhe
had given knife blow to Tatya on his stomach by right hand....
....It is incorrect to suggest that I do not know who had inflicted
injury on my head. It is incorrect to suggest that I had not seen
the accused Birju inflict injury on my head. It is incorrect to
suggest that I had named the accused Birju at the instance of
IO. It is incorrect to suggest that I am deposing falsely."
(Emphasis Supplied)
27. Being relevant, we note the following portion of the cross-
examination of Shanno PW-3:-
"....I and my husband are rag-pickers by profession. My son is
about thirteen years old. He is also a rag-picker. The deceased
and his family are also in the business of rag-picking. The
deceased was not selling drugs/smacks but was only a rag-
picker.
I, my husband and my son went to the hospital in a TSR.
The police had taken Tatya to the hospital while Rohit my son
was taken to the hospital by us....
The accused persons are Mehandiwalas who sit outside
Hanuman Mandir for business. I had identified the accused
persons only in the police station any no where else. It is
incorrect to suggest that I have intentionally wrongly identified
the accused persons at the behest of the IO. It is incorrect to
suggest that accused persons were not present on the spot. it is
incorrect to suggest that none of the accused persons do
Mehandi Business outside Hanuman Mandir. It is wrong to
suggest that I am deposing falsely." (Emphasis Supplied)
28. Before proceeding further, it would be better if we note the role
attributed by the witnesses; Raju Gulati PW-22, Lachi PW-4, Rohit PW-
12 and Shanno PW-3 to each of the appellant in their respective
testimonies (as also in the statement Ex.PW-22/A in case of Raju Gulati)
in a tabular form. The same would be as under:-
Name of Role Role Role Role Role
Appellant attributed attributed attributed attributed attributed
by Raju by Raju by Lachi by Rohit by
Gulati in Gulati PW-4, in PW-12, in Shanno
his PW-22, in her his PW-3, in
statement his testimony testimony her
Ex.PW- testimony testimony
22/A
Rohit @ He was He was He was He was He was
Nanhe carrying a carrying a carrying a carrying a carrying
knife and knife and knife and knife and a knife
He was stabbed stabbed stabbed and
carrying a the the the stabbed
knife and deceased deceased deceased the
stabbed deceased
the
deceased
Dhanjeet He was He was He was He was He was
@ carrying carrying carrying a carrying a carrying
Dhanney a knife a knife knife and knife and a knife
and and gave stabbed stabbed and
stabbed a knife Lachi Lachi stabbed
Lachi blow on Lachi
the head
of Rohit
Vijay @ He was He was He was He was He was
Biju carrying carrying carrying a carrying a carrying
a knife a knife knife and knife and a knife
and gave and gave a gave a and gave
a knife stabbed knife blow knife blow a knife
blow on Lachi on the on the blow on
the head head of head of the head
of Rohit Rohit Rohit of Rohit
Vinod He was He was He was He was He was
Kumar @ carrying carrying carrying carrying carrying
Ganja stone stone stone stone stone
pieces in pieces in pieces in pieces in pieces in
his hand his hand his hand his hand his hand
and and and and and
stopped stopped stopped stopped stopped
people people people people people
from from from from from
coming to coming to coming to coming to coming
the rescue the rescue the rescue the rescue to the
of victims. of victims. of victims. of victims. rescue of
victims.
Bobby @ He was He was He was He was He was
carrying carrying carrying carrying carrying
Robin stone stone stone stone stone
pieces in pieces in pieces in pieces in pieces in
his hand his hand his hand his hand his hand
and and and and and
stopped stopped stopped stopped stopped
people people people people people
from from from from from
coming to coming to coming to coming to coming
the rescue the rescue the rescue the rescue to the
of victims. of victims. of victims. of victims. rescue of
victims.
29. Dr.Gaurav Agrawal PW-14, deposed that he had examined the
deceased and Lachi on June 15, 2011 and prepared their MLCs Ex.PW-
14/A and Ex.PW-14/B respectively. Pertinently, the witness deposed that
HC Inder Pal had brought the deceased to RML hospital at about 11:00
PM on June 15, 2011 and ASI Gajender had brought Lachi to RML
hospital at about 11:05 PM on June 15, 2011.
30. Dr.Deepa Sharma PW-15, deposed that she had examined Rohit on
June 15, 2011 and prepared his MLC Ex.PW-15/A. Pertinently, the
witness deposed that HC Inderpal had brought Rohit to RML hospital at
about 11:05 PM on June 15, 2011.
31. SI Ram Babu PW-13, deposed regarding the role played by him in
the investigation of the present case as noted by us in the foregoing
paragraphs. Being relevant, we note the following portion of the cross-
examination of the witness by appellants Vijay @ Biju, Vinod Kumar @
Ganja and Bobby @ Robin:-
"It is incorrect to suggest that I was not associated in the
investigation at any point of time and accused persons were
falsely implicated at the instance of IO. It is further incorrect to
suggest that I am deposing false facts."
32. Being relevant, we note the following portion of the cross-
examination of SI Ram Babu by appellants Rohit @ Nanhe and Dhanjeet
@ Dhanne:-
"The place of incident was in front of the police station and by
the time call was received, we were aware of the situation and
that is why several police officials proceeded for the spot....
....It is incorrect to suggest that accused Dhanne was present at
the spot as soon we reached the spot and he disclosed that some
persons had come in a car and they had assaulted Tatiya and
other injured persons as Tatiya had supplied them soil in place
of smack. It is further incorrect to suggest that accused Dhanne
had sustained injuries from the hands of those assailants while
he was trying to rescue Tatiya and his family. It is further
incorrect to suggest that complainant sensed that Dhanne was
the assailant and under the wrong perception he named
Dhanne as assailant."
33. Insp.Ravi Kant PW-23, Investigating Officer in the present case,
deposed regarding the role played by him in the investigation of the
present case as noted by us in the foregoing paragraphs. Being relevant,
we note the following portion of the cross-examination of the witness by
(all) the appellants:-
"When I reached the spot from hospital, the public had
informed that the accused Dhanjit @ Dhanne lives somewhere
near Manipur Emporium. On coming to know the same, we had
gone to search for accused Dhanjit @ Dhanne. It is wrong to
suggest that the accused was present on spot. It is wrong to
suggest that the accused had stab wounds on his forehead and
chest. But when we visited the accused to nab him he had been
beaten up by the public persons and had suffered some injuries
because of that. No public person stab the accused Dhanjit @
Dhanne, in my presence....
It is wrong to suggest that we have falsely implicated the
accused Dhanjit despite being informed about the true facts
that four boys in a vehicle had come to purchase smack from
Lachi and that those four boys had stabbed Lachi and the
deceased and that the accused Dhanjit @ Dhanne had tried to
save the deceased and had himself suffered injury because of
that. It is wrong to suggest that this being a blind case and the
murder had happened in front of PS and we were under
pressure to solve the same and thus falsely implicated all the
accused persons....
It is correct that step mother of accused Rohit @ Nanhe does
mehandi work near Hanuman Mandir. I do not know his step
mother was Padma. I am not aware whether Ct Jagdish and
some other constable had been harassing accused Rohit @
Nanhe's mother for Hafta. I do not know whether his mother
had lodged complaints on 25.4.2011, in this regard against the
said constables with SHO, ACP and DCP and other higher
officials. It is wrong to suggest that the police officials nursed a
grudge against Nanhe's mother and that is why falsely
implicated him in this case. I cannot say whether Mark A
(collectively) are the copies of the said complaints. It is wrong
to suggest that in order to solve this case we also apprehended
accused Rohit @ Nanhe's other associates/other accused
persons also. It is wrong to suggest that we pressurized the
complainant party to name the accused persons threatening
them to otherwise dislodged them from the pavement, where
they were residing....
....It is wrong to suggest that while seeking police remand, it
was mentioned by me that the knife was yet to be recovered. But
I had mentioned that the source of knife is to be found out. I
have seen Ex.PW-23/D1. Same is request letter for remand,
which was moved by me. It is wrong to suggest that the knife
were purchased by me from Sadar Bazar and planted on the
accused persons. It is correct that all the three knives are
similar. I cannot say whether those knives were brand new. It is
wrong to suggest that to implicate the accused persons the
police officials had put blood on the said knives.
....It is wrong to suggest that accused Rohit @ Nanhe has been
falsely implicated in this case to take revenge for suspension of
Ct.Om Prakash, against whom accused Rohit and his mother
had lodged a complaint. I have already stated that I am not
aware whether any such complaint was lodged against Ct Om
Parkash."
34. In his statement under Section 313 Cr.P.C., appellant Rohit @
Nanhe pleaded innocence and false implication. Being relevant, we note
the following portion of the statement of appellant Rohit @ Nanhe under
Section 313 Cr.P.C.:-
"Q.1 It is evidence against you that PW-3 Shanno along with
her husband Raju Gulati, and sons namely Rohit, Akash and
Vishal used to reside at the footpath near Hanuman Mandir,
Baba Kharag Singh Marg, New Delhi and were rag pickers.
What do you have to say in this regard?
Answer. It is wrong and incorrect. In fact, they used to sell
smack there.
Q.4 It is further in evidence against you that you and your
associates were already known to Shanno and her family
members as well as Tatya and Lachi as you and your associates
used to reside nearby and some of you used to deal in Mehandi
work. What do you have to say in this regard?
Answer. I do not know them. It is correct that I used to deal
in Mehandi work.
Q.59 Why PWs Smt Shanno, Lachi, Rohit son of Raju Gulati
and Raju Gulati deposed against you. What do you have to say
in this regard?
Answer. They have falsely deposed under pressure and at
the instance of I.O. Ravi Kant.
Q61. Why this case against you?
Answer. It is a false case. It was a blind case as the
assailants had come in the car to buy smack and on refusal
altercation had taken place and after incident they left. No car
number was noted.
Q62. Do you want to say anything else?
Answer. I am innocent and have been falsely implicated by
the police. I and my mother used to do Menhdi work at
Hanuman Mandir. HC Jagdish Prasad had been demanding
money from us. When we refused to oblige him, I was beaten up
severely by him and his fellow Constables in April, 2012. My
mother had sent complaints to various authorities and
thereafter, he was suspended and police had a grudge against
me. It was a blind case which was committed in front of Police
Station. In order to save their skin and to solve this case, I.O.
had threatened the witnesses to name me and other persons as
they were selling smack and were occupying the footpath. I was
picked up from my house at about 04.00 AM on that day and
knife was planted upon me by the I.O. My another shirt was
also taken by the police from my house and blood was also
placed on that shirt." (Emphasis Suppplied)
35. In his statement under Section 313 Cr.P.C., appellant Dhanjeet @
Dhanne also pleaded innocence and false implication. Being relevant, we
note the following portion of the statement of appellant Dhanjeet @
Dhanne under Section 313 Cr.P.C.:-
"Q.1 It is evidence against you that PW-3 Shanno along with
her husband Raju Gulati, and sons namely Rohit, Akash and
Vishal used to reside at the footpath near Hanuman Mandir,
Baba Kharag Singh Marg, New Delhi and were rag pickers.
What do you have to say in this regard?
Answer. It is wrong and incorrect. In fact, they used to sell
smack there.
Q.4 It is further in evidence against you that you and your
associates were already known to Shanno and her family
members as well as Tatya and Lachi as you and your associates
used to reside nearby and some of you used to deal in Mehandi
work. What do you have to say in this regard?
Answer. I do not know them. It is correct that I used to deal
in Mehandi work.
Q.22 It is further in evidence against you that I.O. Ravi Kant
along with Raju Gulati and S.I Ram Babu in pursuance of
information that you (Dhanjeet @ Dhanne) may be found at
Manipur Emporium where your father was working, proceeded
from the spot and they noticed you on the back side of
Emporium and then noticing the presence of police, you
(Dhanjit @ Dhanne) started running towards Union Academy
School where you were over powered by the public persons and
were also assaulted by the public and then over powered by the
I.O. and were saved from public and taken into custody. What
do you have to say in this regard?
Ans. It is wrong and incorrect. In fact I was present near
place of incident. After hearing the shout of scuffle I reached
there and tried to pacify and intervened. I was also assaulted by
those unknown persons by sharp weapon. Police came there
and took me to PS where I was kept for more than an hour and
was sent to RML Hospital and later on involved in this case
falsely.
Q.23 It is further in evidence against you that you (Dhanjit @
Dhanne) was taken to RML Hospital by Ct Pardeep and were
examined by Dr.Deepa Sharma (PW-15) vide MLC Ex PW15/B.
What do you have to say in this regard?
Answer. It is incorrect. But, was taken at a later stage
though I was actively bleeding.
Q.59 Why PWs Smt Shanno, Lachi, Rohit son of Raju Gulati
and Raju Gulati deposed against you. What do you have to say
in this regard?
Answer. They have falsely deposed under pressure and at
the instance of IO.
Q.60 Why other witnesses deposed against you?
Answer. They are police (official) witness and have toed
with the line of IO.
Q.61 Why this case against you?
Answer. It is a false case. It was a blind case. Police in
order to solve it had falsely implicated and planted article and
weapon.
Q.62 Do you want to say anything else?
Answer. I am innocent. I have been falsely implicated by
the police. I was present near the place of occurrence. On
hearing the shrieks I reached there. Some unknown persons
who had come in a car were assaulting the injured persons with
sharp weapon. I tried to pacify but I was also attacked with
sharp object. Injured person had a suspicion that those persons
were known to me. I was actively bleeding. I was taken to
police station and was kept there for more than one hour and
later on I was sent to RML Hospital and was falsely implicated
next day and knife was planted upon me. I am unmarried and
poor person." (Emphasis Supplied)
36. In their respective statements under Section 313 Cr.P.C. appellants
Vijay @ Biju, Vinod Kumar @ Ganja and Bobby @ Robin also pleaded
innocence and false implication. They stated that the witnesses (Raju
Gulati PW-22, Lachi PW-4, Rohit PW-12 and Shanno PW-4) have
implicated them in the present case at the instance of the Investigating
Officer.
37. In his defence, appellant Rohit @ Nanhe examined his stepmother
Padma as DW-1. In her testimony, Padma DW-1, deposed on the lines of
defence taken by appellant in his statement under Section 313 Cr.P.C.
(See answer to question No.62 given by appellant Rohit @ Nanhe in his
statement under Section 313 Cr.P.C. noted by us in the foregoing
paragraphs). Being relevant, we note the following portion of the cross-
examination of the witness:-
"Today is 06.12.2012. I know Lachi, Raju Gulati, Shanno and
her son Rohit, who sell smack nearby. I also know Bajrang
Manik Kale. We have no enmity with them. Neither me nor my
son Rohit ever had any quarrel with these persons i.e. PW
Lachi, Raju Gulati, Shanno and her son Rohit. I also knew
Tatya, who has died. I had no enmity with Tatya also."
38. In his defence, appellant Dhanjeet @ Dhanne examined his wife
Bulbuil as DW-2. She deposed that on June 15, 2011 she had gone to her
parental house. On said day i.e. June 15, 2011 at about 11:00 PM he
received a telephonic call that four-five persons who had come in a car
had stabbed her husband Dhanjeet. She immediately proceeded to the
place of incident where she learnt that her husband has been taken to PS
Connaught Place. On reaching the hospital, she saw that her husband was
bleeding from his head, cheeks and neck. She requested the police
officials to take her husband to the hospital but they assured her that they
would take him i.e. Dhanjeet to the hospital later. It was only after one
and half hours that the police officials took her husband Dhanjeet to the
hospital. The police officials brought her husband Dhanjeet back to the
police station to the hospital. She requested the police officials to leave
her husband but they refused to do so. Her husband Dhanjeet was falsely
implicated by the police officials in the present case.
39. The remaining three appellants viz. Vijay @ Biju, Vinod Kumar @
Ganja and Bobby @ Robin chose not to lead any evidence in their
defence.
40. Holding that the evidence of witnesses; Raju Gulati PW-22, Lachi
PW-4, Rohit PW-12 and Shanno PW-3, inspires confidence (but ignoring
the circumstance that knives and stones were recovered at the instance of
the appellants on the reasoning that the eye-witnesses account (s) of Raju
Gulati PW-22, Lachi PW-4, Rohit PW-12 and Shanno PW-3, is sufficient
to establish the guilt of the appellants), vide impugned judgment dated
January 17, 2013 the learned Trial Judge has convicted (four) appellants
Dhanjeet @ Dhanne, Vijay @ Biju, Vinod Kumar @ Ganja and Bobby @
Robin for having committed an offence punishable under Section 304
Part-II IPC read with Section 149 IPC for forming an unlawful assembly,
object whereof was to cause such injuries on the persons of group of
deceased (deceased, Lachi PW-4, Rohit PW-12, Raju Gulati PW-22 and
Shanno PW-3) with the knowledge that such injuries are likely to cause
death. The learned Trial Judge convicted appellant Rohit @ Nanhe for
having committed an offence punishable under Section 302 IPC for
stabbing the deceased in his stomach with the intention of causing such
bodily injury sufficient to cause death in the ordinary nature of nature and
thereby causing death of the deceased. In addition thereto, the learned
Trial Judge has also convicted the appellants for having committed
offences punishable under Section 324 IPC read with Section 149 IPC
and Section 148 IPC for causing injury on the person of Lachi and Rohit
and rioting after being armed with deadly weapons.
41. Vide order dated January 22, 2013, the learned Trial Judge has
sentenced appellant Rohit @ Nanhe to undergo imprisonment for life and
pay fine in sum of `5,000/- for having committed offence punishable
under Section 302 IPC; in default to undergo simple imprisonment for a
period of six months. For the offence punishable under Section 304 Part-
II IPC read with Section 149 IPC appellants Dhanjeet @ Dhanne, Vijay
@ Biju, Vinod Kumar @ Ganja and Bobby @ Robin have been sentenced
to undergo rigorous imprisonment for a period of seven years and pay
fine in sum of `3,000/-; in default to undergo simple imprisonment for a
period of six months. For the offence punishable under Section 324 IPC
read with Section 149 IPC the appellants have been sentenced to undergo
rigorous imprisonment for a period of three years and pay fine in sum of
`2,000/-; in default to undergo simple imprisonment for a period of two
months. For the offence punishable under Section 148 IPC the appellants
have been sentenced to undergo rigorous imprisonment for a period of
three years. All the sentences were directed to run concurrently.
42. Aggrieved by the impugned judgment dated January 17, 2013 and
January 22, 2013 the appellants have filed the above captioned appeals.
43. During hearing of the appeals, following five arguments were
advanced by the learned counsel for the appellants:-
A The first submission advanced by the counsel for the appellants
predicated upon the testimony of Raju Gulati PW-22, and his statement
Ex.PW-22/A. Counsel highlighted that Raju Gulati had stated in his
statement Ex.PW-22/A that appellant Dhanjeet @ Dhanne had stabbed
Lachi while appellant Vijay @ Biju gave a knife blow on the head of his
son Rohit. Counsel then pointed out that in his testimony Raju Gulati
PW-22, reversed the roles assigned by him to appellants Dhanjeet @
Dhanne and Vijay @ Biju in his statement Ex.PW-22/A inasmuch as he
has stated in his testimony that appellant Vijay @ Biju had stabbed Lachi
while appellant Dhanjeet @ Dhanne gave a knife blow on the head of his
son Rohit. Counsel argued that aforesaid material variation regarding the
role attributed to appellants Dhanjeet @ Dhanne and Vijay @ Biju
occurring in the testimony of Raju Gulati and his statement Ex.PW-22/A
renders the evidence of Raju Gulati PW-22, untrustworthy and thus
deserves to be rejected.
B The second submission advanced by the learned counsel for the
appellants is predicated upon the MLCs Ex.PW-14/A, Ex.PW-14/B and
Ex.PW-15/A of the deceased, Lachi and Rohit respectively and
testimonies of Dr.Gaurav Aggarwal PW-14 and Dr.Deepa Sharma PW-
15. Counsel highlighted that the MLCs Ex.PW-14/A and Ex.PW-15/A of
the deceased and Rohit respectively record that they i.e. deceased and
Rohit were brought to RML hospital by HC Inder Pal in PCR van C-8
while MLC Ex.PW-14/B of Lachi records that Lachi was brought to
RML hospital by ASI Gajender in PCR Van V-26. Counsel further
highlighted that the doctors viz. Dr.Gaurav Aggarwal PW-14 and
Dr.Deepa Sharma PW-15, who have prepared the MLCs Ex.PW-14/A,
Ex.PW-14/B and Ex.PW-15/A of deceased, Lachi and Rohit have also
deposed in tune with the aforesaid recording contained in said three
MLCs. Counsel argued that the aforesaid recording contained in the MLC
Ex.PW-15/A of Rohit is palpably false in view of the depositions of
Shanno PW-3, mother of Rohit, to the effect of she, her husband (Raju
Gulati) and son (Rohit) had gone to the hospital in a TSR and that the
police had taken the deceased and Lachi to the hospital while her son
Rohit was taken to hospital by her and her husband Raju Gulati and Lachi
PW-4, to the effect that she and the deceased was taken to the hospital by
the police and Rohit was taken to the hospital by his parents (Raju Gulati
and Shanno). Counsel further argued that the claim of the prosecution that
PCR van V-26 which is stated to have removed Lachi to the hospital
reached at the spot within mere seven minutes of the receipt of incident
(inasmuch as first information regarding the incident was received by the
police at 10:45 PM on June 15, 2011 and PCR van V-26 reached the spot
seven minutes later at 10.50 P.M. as recorded in the PCR form Ex.PW-
8/A) is highly doubtful. Counsel argued that the doubt regarding removal
of the injured persons/witnesses Lachi PW-4 and Rohit PW-12, is further
deepened by the fact that the two police officers viz. HC Inder Pal and
ASI Gajender stated to have removed Lachi and Rohit to the hospital
have not been examined by the prosecution.
C The third submission advanced by the counsel for the appellants is
predicated upon the MLC Ex.PW-15/B of appellant Dhanjeet @ Dhanne.
It was highlighted by the counsel that the MLC Ex.PW-15/B of Dhanjeet
@ Dhanne records that Dhanjeet @ Dhanne was brought to RML
Hospital at about 12:40 AM on June 16, 2011. Counsel further
highlighted that the arrest memo Ex.PW-13/C of appellant Dhanjeet @
Dhanne records that appellant Dhanjeet @ Dhanne was arrested from a
spot near the place the place of incident at about 4:30 AM on June 16,
2011. Counsel argued that the fact that appellant Dhanjeet @ Dhanne was
brought to the RML hospital at about 12:40 AM on June 16, 2011 (within
two hours of happening of the incident) belies the claim of the
prosecution that he i.e. Dhanjeet @ Dhanne was arrested at about 04:30
AM on June 16, 2011 and probablizes the defence taken by Dhanjeet @
Dhanne that four unknown persons had come in a car and attacked the
injured persons (deceased, Lachi and Rohit); he had sustained injuries
while trying to save the injured persons and he was arrested by the police
from the place of incident itself as the injured persons had a suspicion
that the persons who had attacked them were known to him.
D The fourth submission advanced by the counsel for the appellants
was predicated upon the application Ex.PW-23/D1 filed by Insp.Ravi
Kant PW-23, before Duty Magistrate, Patiala House Courts seeking
police custody of appellants Rohit @ Nanhe, Dhanjeet @ Dhanne and
Vijay @ Biju. Counsel highlighted that as per testimony of Insp.Ravi
Kant PW-23 he i.e. Insp.Ravi Kant had filed application Ex.PW-23/D1
after appellants Rohit @ Nanhe, Dhanjeet @ Dhanne and Vijay @ Biju
had got recovered knives. Counsel then highlighted that the tenor of
application Ex.PW-23/D1 was that appellants Rohit @ Nanhe, Dhanjeet
@ Dhanne and Vijay @ Biju had made disclosure statements to the effect
that they can get recover the knives used by them at the time of incident
but the same are yet to be recovered. Counsel argued that the aforesaid
material discrepancy between the testimony of Insp.Ravi Kant PW-23,
and the application Ex.PW-23/D1 leaves no room for the doubt that the
knives allegedly recovered at the instance of appellants Rohit @ Nanhe,
Dhanjeet @ Dhanne and Vijay @ Biju were planted upon them by the
police.
E The last submission advanced by the counsel for the appellants that
the (alleged) recovery of stones at the instance of appellants Vinod
Kumar @ Ganja and Bobby @ Robin is most doubtful in view of the fact
that no evidence whatsoever has emerged in the present case to establish
that the said stones were the ones used by appellants Vinod Kumar @
Ganja and Bobby @ Robin to stop the people from coming to the rescue
of the group of the deceased as stated by the (alleged) eye-witnesses to
the incident in question.
44. Since the case of the prosecution against the appellants hinged
upon the ocular evidence of Raju Gulati PW-22, Lachi PW-4, Rohit PW-
12 and Shanno PW-4 and the first few submissions advanced by the
counsel for the appellants also pertain to the alleged discrepancies in the
ocular evidence of said witnesses, we first proceed to consider the
veracity of said witnesses.
45. In dealing with the veracity of ocular evidence of Raju Gulati PW-
22, Lachi PW-4, Rohit PW-12 and Shanno PW-4, we first proceed to note
the following observations made by a Division Bench of this Court, of
which one of us, namely, Pradeep Nandrajog J., was a member of, in
Criminal Appeal No.327/2007 titled as 'Akbar & Anr. v. State' decided
on May 29, 2006:-
"I. While appreciating the evidence of a witness, the
approach must be whether the evidence of a witness read as a
whole appears to have a ring of truth. Once that impression is
formed, it is undoubtedly necessary for the Court to scrutinize
the evidence more particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the evidence as a
whole and evaluate them to find out whether it is against the
general tenor of the evidence given by the witnesses and
whether the earlier evaluation of the evidence is shaken as to
render it unworthy of belief.
II If the Court before whom the witness gives evidence had
the opportunity to form an opinion about the general tenor of
the evidence given by the witness, the appellate court which had
not this benefit will have to attach due weight to the
appreciation of the evidence by the trial court and unless there
are reasons weighty and formidable it would not be proper to
reject the evidence on ground of minor variations or infirmities
in the matter of trivial details.
III When eye-witness is examined at length it is quite
possible for him to make some discrepancies. But courts should
bear in mind that it is only when discrepancies in the evidence
of a witness are so incompatible with the credibility of his
version that the Court is justified in jettisoning his evidence.
IV Minor discrepancies not on trivial matters not touching
the core of case, hyper-technical approach by taking sentences
torn out of context here or there from the evidence, attaching
importance to some technical error committed by the
investigating officer not going to the root of matter would not
ordinarily permit rejection of the evidence as a whole.
V Too serious a view to be adopted on mere variations
falling in the narration of an incident (either as between the
evidence of two witnesses or as between two statements of the
same witness) is an unrealistic approach for judicial scrutiny.
VI By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an incident. It
is not as if a video tape is replayed on the mental screen.
VII Ordinarily it so happens that a witness is overtaken by
events. The witness could not have anticipated the occurrence
which so often has an element of surprise. The mental faculties
cannot be expected to be attuned to absorb the details.
VIII The powers of observation differ from person to person.
What one may notice, another may not. An object or movement
might emboss its image on one person's mind whereas it might
go unnoticed on the part of another.
IX By and large people cannot accurately recall a
conversation and reproduce the very used by them or heard by
them. They can only recall the main purport of the
conversation. It is unrealistic to expect a witness to be a human
tape recorder.
X In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make their estimates
by guess work on the spur of the moment at the time of
interrogation. And one cannot expect people to make very
precise or reliable estimates in such matters. Again, it depends
on the time-sense of individuals which varies from person to
person.
XI Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place in rapid
succession or in a short time span. A witness is liable to get
confused, or mixed up when interrogated later on.
XII A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing cross-
examination by counsel and out of nervousness mix up facts, get
confused regarding sequence of events, or fill up details from
imagination on the spur of the moment. The sub-conscious mind
of the witness sometimes so operates on account of the fear of
looking foolish or being disbelieved though the witness is giving
a truthful and honest account of the occurrence witnessed by
him.
XIII A former statement though seemingly inconsistent with
the evidence need not necessarily be sufficient to amount to
contradiction. Unless the former statement has the potency to
discredit the later statement, even if the later statement is at
variance with the former to some extent it would not helpful to
discredit said witness.
(These principles have been culled out from the decisions of
Supreme Court reported as Bharwada Bhoginbhai Hirjibhai v.
State of Gujarat 1983 Cri LJ 096, Leela Ram v. State of
Haryana 1997 Cri LJ 3178 and Tehsildar Singh v. State of
U.P.)"
46. It is significant to note that Lachi PW-4 and Rohit PW-12, are
injured witnesses.
47. When the evidence of an injured eye-witness is to be appreciated,
the under-noted legal principles are required to be kept in mind:
(a) The presence of an injured witness at the place and time of the
occurrence cannot be doubted unless there are material contradictions in
his deposition.
(b) Unless, it is otherwise established by the evidence, it must be
believed that an injured witness would not allow the real culprits to
escape and falsely implicate the accused.
(c) The evidence of an injured witness has a greater evidentiary value
and unless compelling reasons exist, their statements are not to be
discarded lightly.
(d) The evidence of injured witness cannot be doubted on some
embellishment in natural conduct or minor contradictions.
(e) If there be any contradiction, exaggeration and immaterial
embellishments in the evidence of an injured witness, then such
contradiction, exaggeration or embellishment should be discarded from
the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into
consideration and discrepancies which normally creep due to loss of
memory with passage of time should be discarded.
48. From the afore-noted judicial principles, it is clear that the first step
in appreciating the evidence of a witness is to examine his witness de-
hors the discrepancies appearing therein and to see whether the evidence
appears to be a truthful account.
49. In the instant case, the incident occurred around 10:30 PM on
November 15, 2006. Within twenty minutes PCR vans reached the spot
and removed the deceased, Lachi and Rohit to the hospital. On her way to
the hospital in PCR van, Lachi PW-3, informed the police official present
in the PCR van that the deceased has been stabbed in his stomach by
appellant Rohit @ Nanhe and his three-four associates as recorded in the
PCR form Ex.PW-8/A. In this view of the matter, the possibility of Lachi
PW-3, contriving facts and spinning a false story in such less time
(twenty-thirty minutes) is remote.
50. To repeat, the incident in question occurred around 10.30 P.M. on
November 15, 2006. The statement of Raju Gulati PW-22, which formed
the basis of the FIR Ex.PW-1/A, was recorded at 12:35 AM on November
15, 2006. The statement Ex.PW-22/A of Raju Gulati was recorded at
RML hospital as evident from the deposition of Insp.Ravi Kant PW-23,
the scribe of statement Ex.PW-22/A, that he recorded the said statement
at the hospital, which deposition was not controverted by the defence. It
can reasonably be taken that it must have taken at least 20 minutes for
Raju Gulati in reaching RML hospital from the place of occurrence. Yet
again, the possibility of Raju Gulati contriving facts and spinning a false
story in such less time is remote.
51. There is yet another fact which needs to be noted. In the decision
reported as (1991) 4 SCC 391 Malkiat Singh v. State of Punjab the
Supreme Court held that it is settled law that the First Information Report
is not substantive evidence. It can only be used to contradict the maker
thereof or for corroborating his evidence and also to show that the
implication of the accused was not an after-thought. In the instant case,
the FIR Ex.PW-1/A records that Raju Gulati has stated that appellant
Rohit @ Nanhe gave knife blow in the stomach of the deceased. The
findings of the doctor who had conducted the post-mortem of the
deceased after registration of the FIR as recorded in the post-mortem
report Ex.PW-5/A are that a wound was found in the hypochondrial
region (part of abdomen in the upper zone on both sides of the epigastric
region and beneath the cartilages of the lower limbs) of the deceased.
Therefore, the FIR Ex.PW-1/A duly corroborates the testimony of Raju
Gulati PW-22, for the reason, unless Raju Gulati had seen appellant Rohit
@ Nanhe giving knife blow to the deceased, he could not have correctly
stated the situs of the injury suffered by the deceased, prior to the conduct
of the post-mortem of the deceased.
52. It is further relevant to note that the recordings contained in the FIR
Ex.PW-1/A that Raju Gulati had stated that appellant Dhaneet @ Dhanne
had given knife blow on the waist of Lachi and appellant Vijay @ Biju
had given knife blow on the head of Rohit stand corroborated by the
MLCs Ex.PW-14/B and Ex.PW-15/A of Lachi and Rohit respectively
which record presence of injury on back and head of Lachi and Rohit.
53. The four eye-witnesses; Raju Gulati PW-22, Lachi PW-4, Rohit
PW-12 and Shanno PW-3, have by and large corroborated each other on
material aspects relating to the incident. (See the table drawn by us in the
foregoing paragraphs). (A discrepancy has been pointed out by the
counsel for the appellants in the ocular evidence of Raju Gulati PW-22,
which shall be dealt by us little later).
54. Next, we note the defence taken by the appellants.
55. The defence taken by appellant Rohit @ Nanhe in his statement
under Section 313 Cr.P.C. is that the he has been falsely implicated in the
present case at the instance of the police officials as one Head Constable
Jagdish Prasad had been suspended from service due to complaints
lodged by his stepmother against said police official and witnesses (Raju
Gulati, Lachi, Rohit and Shanno) have been threatened by Investigating
Officer Insp.Ravi Kant to depose against him. On the contrary, what was
suggested to Raju Gulati in his cross-examination by appellant Rohit @
Nanhe was that the witnesses (Raju Gulati, Lachi, Rohit and Shanno)
have deposed against the appellants as they harbored ill-will against the
appellants as they used to dissuade them from selling smack. Further, it
has been suggested to Lachi that the appellants were not known to her,
which is in contradiction to the afore-noted suggestion given to Raju
Gulati and claim made by Padma DW-1, stepmother of appellant Rohit @
Nanhe that the appellants were known to him and her son Rohit @
Nanhe. (Pertinently, it was claimed by Rohit @ Nanhe in his statement
under Section 313 Cr.P.C. that he does not know the deceased, Raju
Gulati, Lachi, Shanno and Rohit). It is also relevant to note that it has not
been suggested to SI Ram Babu PW-13, who was associated with the
investigation of the present case in his cross-examination by appellant
Rohit @ Nanhe that the police officials had falsely implicated Rohit @
Nanhe in order to take revenge from him for suspension of HC Jagdish
Prasad. Thus, there are glaring contradictions in the defence taken by
appellant Rohit @ Nanhe.
56. Similar is the position with regard to defence taken by appellant
Dhanjeet @ Dhanno. The defence taken by appellant Dhanjeet @ Dhanno
was that at about 10:30 PM on November 15, 2011 he was present at the
place of occurrence when some unknown persons came there and
attacked deceased, Raju Gulati, Lachi, Shanno and Rohit. He tried to
pacify said unknown persons whereupon he was also assaulted by them
with sharp weapons and sustained injuries on his person. Raju Gulati,
Lachi, Shanno and Rohit had a suspicion that the unknown persons were
known to him and thus they implicated him in the present case. The
police officials implicated him in the present case to solve the blind case
of murder of the deceased which had happened right in front of the police
station. On the contrary, what was suggested to Raju Gulati in his cross-
examination by appellant Dhanjeet @ Dhanne was that the witnesses
(Raju Gulati, Lachi, Rohit and Shanno) have deposed against the
appellants as they harbored ill-will against the appellants as they used to
dissuade them from selling smack. (Pertinently, it was claimed by
Dhanjeet @ Dhanne in his statement under Section 313 Cr.P.C. that he
does not know the deceased, Raju Gulati, Lachi, Shanno and Rohit). No
question or suggestion relating to aforesaid defence taken by appellant
Dhanjeet @ Dhanne put/given to Lachi PW-4, Rohit PW-12 and Shanno
PW-3 by Dhanjeet @ Dhanne in their respective cross-examinations. In
fact, what was suggested to Lachi PW-4, in her cross-examination by
appellant Dhanjeet @ Dhanne was that she was not present at the place of
occurrence at the time of incident. (Being an injured witness, the presence
of Lachi PW-4, cannot be disputed at the place of occurrence at the time
of incident). (This also takes care of the third submission advanced by the
learned counsel for appellants relating to defence taken by appellant
Dhanjeet @ Dhanne in his statement under Section 313 Cr.P.C.)
57. The defence taken by the remaining three appellants viz. appellants
Vijay @ Biju, Vinod Kumar @ Ganja and Bobby @ Robin was that
witnesses; Raju Gulati, Lachi, Rohit and Shanno have falsely implicated
them in the present case at the instance of the Investigating Officer
(Insp.Ravi Kant). No reason have been assigned by said appellants as to
why Raju Gulati, Lachi, Rohit and Shanno would toe the line of
Investigating Officer and implicate them and leave real culprits or that
why did Investigating Officer Insp.Ravi Kant implicated them in the
present case of all the people.
58. The afore-noted gaping holes/variations appearing in the defence
taken by the appellants strengthens the ocular evidence of witnesses; Ravi
Gulati PW-22, Lachi PW-4, Rohit PW-12 and Shanno PW-3, that the
appellants had attacked them and the deceased.
59. Therefore, the conclusion which emerges from the first reading of
the evidence of the witnesses in question is that they are prima facie
truthful witnesses.
60. We next proceed to consider that whether the discrepancies pointed
out by the learned counsel for the appellants in the ocular evidence of
Raju Gulati PW-22, Lachi PW-4, Rohit PW-12 and Shanno PW-3,
renders their evidence unworthy of any reliance.
61. The first submission advanced by the counsel for the appellants
pertains to the role (s) attributed to appellants Dhanjeet @ Dhanne and
Vijay @ Biju by Raju Gulati PW-22, in his testimony and statement
Ex.PW-22/A. Raju Gulati had stated in his statement Ex.PW-22/A that
appellant Dhanjeet @ Dhanne had stabbed Lachi while appellant Vijay @
Biju gave a knife blow on the head of his son Rohit. However, in his
testimony Raju Gulati PW-22, reversed the roles assigned by him to
appellants Dhanjeet @ Dhanne and Vijay @ Biju in his statement
Ex.PW-22/A inasmuch as he has stated in his testimony that appellant
Vijay @ Biju had stabbed Lachi while appellant Dhanjeet @ Dhanne
gave a knife blow on the head of his son Rohit.
62. The incident in question happened at around 10:30 PM on
November 15, 2006. The statement Ex.PW-22/A of Raju Gulati was
recorded at about 12:35 AM on November 16, 2006. At the time of
recording of his statement Ex.PW-22/A, the incident in question was
fresh in the mind of Raju Gulati as statement Ex.PW-22/A of Raju Gulati
was recorded just two hours after the incident took place. The
examination-in-chief of Raju Gulati was conducted on August 17, 2012
i.e. after about nine months of the incident by which time the incident had
become stale in the mind of Raju Gulati. As already noted hereinabove, a
witness cannot be expected to possess a photographic memory and to
recall correctly the details of an incident. It is not as if a video tape is
replayed on the mental screen. Ordinarily a witness cannot be expected to
recall accurately the sequence of events which take place in rapid
succession or in a short time span. A witness is liable to get confused and
mix up when interrogated later on, particularly when being subjected to
piercing cross-examination by the counsel. In this view of the matter, the
discrepancy pointed out by the counsel for the appellants in the evidence
of Raju Gulati PW-22, is a slight aberration and does not render his
evidence untrustworthy, particularly when the other three eye-witnesses
viz. Lachi PW-4, Rohit PW-12 and Shanno PW-3, have assigned such
roles to the appellants as have been assigned by Raju Gulati in his
statement Ex.PW-22/A.
63. The next (and last) discrepancy has been pointed out by the counsel
for appellants in the evidence of Shanno PW-3 and Lachi PW-4, and
relates to removal of Rohit PW-12, to the hospital.
64. Shanno PW-3, has stated in her cross-examination that she and her
husband Raju Gulati had taken Rohit to RML hospital. The mental
condition of Shanno when her son Rohit was injured at the spot has to be
kept in mind while evaluating her evidence. Shanno is the mother of
Rohit. Obviously, she would have been extremely perturbed, confused
and in a state of excitement when her injured son was being removed to
the hospital. What has happened is thus: Two PCR vans arrived at the
place of occurrence soon after the happening of the incident due to close
proximity between the police station Connaught Place and place of
occurrence. One PCR Van V-26 removed Lachi to RML hospital while
the second PCR van C-8 removed the deceased and Rohit to RML
hospital. Raju Gulati and Shanno, the parents of Rohit, hired a TSR,
followed the PCR van and reached RML hospital. While being
questioned about the incident, Shanno got confused and erroneously
stated that she and her husband Raju Gulati had taken Rohit to hospital
instead of having stated that a PCR van had taken the deceased to the
hospital and she and her husband Raju Gulati reached the hospital in a
TSR. The witnesses are bound to err while narrating a chaotic and
stressful situation.
65. As regards Lachi stating that Rohit was removed to the hospital by
his parents, suffice it to state that Lachi and Rohit were removed in
separate PCR vans. It has been guesswork on the part of Lachi that since
parents of Rohit (Raju Gulati and Shanno) were present at the spot he i.e.
Rohit must have been removed to the hospital by his parents.
66. The discrepancies pointed out by counsel for the appellants in the
ocular evidence of eye-witnesses (Raju Gulati, Lachi, Rohit and Shanno)
are not of such a nature that it shakes the earlier (prima facie) evaluation
of eye-witnesses made by us and renders the evidence of said witnesses
unworthy of belief. (The discrepancies are clearly explainable).
67. Concerning the recoveries of the knives attributable to Dhanjeet,
Rohit and Vijay, we note that on the one hand witnesses of the
prosecution have sought to prove the recoveries soon after the arrest of
the three on disclosure statements being recorded and on the other hand
we have the application Ex.PW-23/D1 submitted to the learned
Metropolitan Magistrate for a remand of the three stating in the
application that recoveries of the weapon of offence has to be effected.
There is a serious taint and thus it would be safe to disregard the evidence
of recovery of knives attributable to the three and the opinion of the
doctor who conducted the post-mortem of the deceased that the injury
caused on the deceased was possible from the knife got recovered by
Dhanjeet.
68. As regards the recovery of stones at the instance of appellants
Vinod Kumar @ Ganja and Bobby @ Robin, we note the stones were
allegedly got recovered by said (two) appellants from a service lane near
the place of occurrence. One sees stones on the corners of the footpaths
and pavements in India. In the absence of any evidence to show that the
stones allegedly got recovered by appellants Vinod Kumar @ Ganja and
Bobby @ Robin, were the ones used by them in the incident in question,
it would not be safe to conclude that the stones were got recovered at the
instance of appellants Vinod Kumar @ Ganja and Bobby @ Robin. We
thus also discard the circumstance that the stones were got recovered at
the instance of appellants Vinod Kumar @ Ganja and Bobby @ Robin.
69. However, nothing turns on the exclusion of circumstance of
recovery of knives and stones at the instance of the appellants from the
array of incriminating circumstances appearing against the appellants for
the reason the eye-witness account(s) of Raju Gulati PW-22, Lachi PW-4,
Rohit PW-12 and Shanno PW-12, is sufficient to establish the
participative roles of the five accused at the incident at which the
deceased died and Lachi and Rohit received injuries.
70. The question would be : what is the offence committed by the five
accused. As noted above, the learned Trial Court has found that the five
formed an unlawful assembly with the object of inflicting injuries with
dangerous weapons.
71. Section 141, IPC defines 'unlawful assembly' as under:-
"An assembly of five or more persons is designated an
"unlawful assembly", if the common object of the persons
composing that assembly is -
First - To overawe by criminal force, or show of criminal force
the Central or any State Government or Parliament or the
Legislature of any State or any public servant in the exercise of
the lawful power of such public servant; or
Second - To resist the execution of any law, or of any legal
process; or
Third - To commit any mischief or criminal trespass, or other
offence; or
Fourth - By means of criminal force, or show of criminal force,
to any person, or take or obtain possession of any property, or
to deprive any person of the enjoyment of a right of way, or of
the use of water or other incorporeal right of which he is in
possession or enjoyment, or to enforce any right or supposed
right; or
Fifth - By means of criminal force, or show of criminal force,
to compel any person to do what he is not legally bound to do,
or omit to do what he is legally entitled to do.
Explanation - An assembly which was not unlawful when it
assembled, may subsequently become an unlawful assembly."
72. The underlying principle of Section 141 of the Penal Code is that
law discourages tumultuous assemblage of men so as to preserve public
peace. The essence of an offence under the Section is the combination of
five or more persons, united in the purpose of committing a criminal
offence, and the consensus of the purpose itself is an offence distinct
from the offence which these persons agree and intend to commit. Law
does not declare the mere assemblage of men, however large, illegal. But
where the assemblage is inspired by an illegal object as specified in
Section 141 of the Penal Code, the offence is committed.
73. Section 149 IPC reads as follows:-
"If an offence is committed by any member of an unlawful
assembly in prosecution of the common object of that assembly,
or such as the members or that assembly knew to be likely to
committed in prosecution of that object, every person who, at
the time of the committing of that offence, is a member of the
same assembly, is guilty of that offence."
74. It is apparent that under Section 149 IPC the emphasis is on
common object and not on common intention. Mere presence in an
unlawful assembly cannot render a person liable unless there was a
common object and he was actuated by that common object and that
object is one of those set out in Section 141 IPC. The crucial question
to be determined is whether the assembly consisted of five or more
persons and whether the said persons entertained one or more of the
common objects as specified in Section 141 IPC. It cannot be laid down
as a general proposition of law that unless an overt act is proved against
a person, who is alleged to be a member of the unlawful assembly, it
cannot be said that he is a member of the unlawful assembly. The only
thing required is that he should have understood that the assembly was
unlawful and was likely to commit any of the acts which fall within the
purview of Section 141. The word 'object' means the purpose or design
and in order to make it 'common' it must be shared by all. In other
words, the object should be common to the persons, who compose the
assembly, that is to say, they should all be aware of it and concur in it.
A common object may be formed by express agreement after mutual
consultation, but that is by no means necessary. It may be formed at any
stage by all or a few members of the assembly and the other members
may just join and adopt it. Once formed, it need not continue to be the
same. It may be modified or altered or abandoned at any stage. The
expression 'in prosecution of common object' as appearing in Section
149 has to be strictly construed as equivalent to 'in order to attain the
common object'. It must be immediately connected with the common
object by virtue of the nature of the object. There must be community
of object and the object may exist only up to particular stage, and not
thereafter. Members of an unlawful assembly may have community of
object up to certain point beyond which they may differ in their objects
and the knowledge, possessed by each member of what is likely to be
committed in prosecution of their common object may vary not only
according to the information at his command, but also according to the
extent to which he/she shares the community of objects, and as a
consequence of this the effect of Section 149 IPC may be different on
different members of the same assembly.
75. The common object of an assembly is to be ascertained from the
acts and language used by the members composing the assembly; taking
into account all surrounding circumstances. The conduct adopted by the
members of the assembly is an important circumstance to be kept in
mind. Similarly, the arms carried by the members of the assembly and
their behavior at or near the scene of incident are also important
circumstances to be kept in mind. The time of forming an unlawful intent
is not material. An assembly of persons may be an innocuous gathering
initially but may subsequently become unlawful. In other words, common
object can develop during the course of an incident at the spot constanti.
76. Section 149 IPC consists of two parts. The first part of the section
means that the offence to be committed in prosecution of the common
object must be one which is committed with a view to accomplish the
common object. In order that the offence may fall within the first part, the
offence must be connected immediately with the common object of the
unlawful assembly of which the accused was a member of. Even if the
offence committed is not in direct prosecution of the common object of
the assembly, it may yet fall under Section 149, if it can be shown that the
offence was such as the members knew was likely to be committed and
this is what is required in the second part of the section. The purpose for
which the members of the assembly set out or desired to achieve is that
object. If the object desired by all the members is the same, the
knowledge that the object which is being pursued is shared by all the
members and they are in general agreement as to how it is to be achieved
and that is now the common object of the assembly. An object is
entertained in the human mind, and it being merely a mental attitude, no
direct evidence can be available and, like intention, has to be gathered
from the acts which the person commits and result thereof. The word
'knew' used in the second part of Section 149 means something more
than a possibility and it cannot be made to bear the sense of 'might have
been known'.
77. In the instant case, the evidence on record suggests that the
deceased, Lachi, Raju Gulati, Shanno and Rohit were dealing with smack
and appellants had purchased smack from them. (Pertinently, the MLC
Ex.PW-15/B of Dhanjeet @ Dhanne records that Dhanjeet @ Dhanne had
history of drug abuse). However, the deceased, Lachi, Raju Gulati,
Shanno and Rohit sold mud to the appellants instead of smack. This
infuriated the appellants.
78. The appellants, five in number, armed themselves with deadly
weapons (knives) and formed an unlawful assembly with the object of
getting smack from the deceased, Lachi, Raju Gulati, Shanno and Rohit
and using criminal force in case the deceased, Lachi, Raju Gulati, Shanno
and Rohit would not give smack to them.
79. With this common object in mind, appellants, three in number,
armed with knives, went to the pavement where the deceased, Lachi, Raju
Gulati, Shanno and Rohit used to sleep and carry on business and entered
into a dialogue with them for having sold them mud instead of smack.
When the deceased, Lachi, Raju Gulati, Shanno and Rohit did not give
smack to the appellants, Rohit @ Nanhe, Dhanjeet @ Dhanne and Vijay
@ Biju attacked the deceased, Lachi, Raju Gulati, Shanno and Rohit with
knives while Vinod Kumar @ Ganja and Bobby @ Robin took stones in
their hands and prevented the people from coming to the rescue of the
deceased, Lachi, Raju Gulati, Shanno and Rohit at the time of attack.
80. It is seen that one knife blow each was given by appellants Rohit
@ Nanhe, Dhanjeet @ Dhanne and Vijay @ Biju to the deceased, Lachi
and Rohit respectively. The knife blow given by appellant Rohit @
Nanhe hit the deceased in the hypochondrial region (part of abdomen in
the upper zone on both sides of the epigastric region and beneath the
cartilages of the lower limbs) and caused his death. The remaining two
persons who were given knife blows viz. Lachi and Rohit were lucky and
the injury sustained by them did not prove to be fatal.
81. Now, the appellants Rohit @ Nanhe, Dhanjeet @ Dhanne and
Vijay @ Biju who were armed with knives inflicted only a single blow on
deceased, Lachi and Rohit respectively. Having an opportunity to inflict
many more (knife) blows, appellants Rohit @ Nanhe, Dhanjeet @
Dhanne and Vijay @ Biju inflicted only one blow.
82. The time of incident was about 10:30 PM. It was dark. None can
say with certainty that the intention to strike a blow at any particular part
of the body. But, it can be said with safety that there was an intention to
cause injury to the deceased for the reason, a knife having a long blade
was used as evident from the depth of stab wound found on the person of
the deceased.
83. The post-mortem report Ex.PW-5/A of the deceased shows that the
knife blow given by appellant Rohit @ Nanhe landed in the
hypochondrial region (part of abdomen in the upper zone on both sides of
the epigastric region and beneath the cartilages of the lower limbs) of the
deceased ended up cutting subcutaneous tissues and punctured the
stomach of the deceased, which unfortunately caused the death of the
deceased due to shock.
84. Under these circumstances, it would be difficult to conclude that
the common object of the unlawful assembly formed by appellant Rohit
@ Nanhe and other four appellants was to cause injury on the person of
deceased (and/or other persons forming part of the group of the deceased)
with the intention of causing death or such bodily injury which would be
sufficient to cause death in the ordinary course of nature. Instead, what
can be said is that the common object of the unlawful assembly formed
by appellant Rohit @ Nanhe and other four appellants to cause injury to
the deceased (and/or other persons forming part of group of the deceased)
with the knowledge of the kind contemplated by Section 299(c) of IPC
that death may result of the person injured by them, for the reason the fact
that knives, having long blades were used would require knowledge to be
imputed to the appellants that if the blow given by them struck a vital part
of the body of the deceased (and/or other persons forming part of the
group of the deceased) there was every likelihood of an injury being
caused which could result in the death of the deceased (and/or other
person forming part of the group of the deceased).
85. Thus, the offences committed by the appellants would be culpable
homicide not amounting to murder in furtherance of common object of
the unlawful assembly formed by them i.e. the offence punishable under
Section 304 Part-II IPC read with Section 149 IPC.
86. The appeals are disposed of as a necessary corollary of our
reasoning above; the conviction of the appellant Rohit @ Nanhe is altered
from one under Section 302 IPC to Section 304 Part-II IPC read with
Section 149 IPC, for which offence he is sentenced to undergo rigorous
imprisonment for seven years and pay fine in sum of `3,000/-, in default
of payment of fine to undergo simple imprisonment for a period of six
months. The conviction and the sentence of the remaining four appellants
viz. Dhanjeet @ Dhanne, Vijay @ Biju, Vinod Kumar @ Ganja and
Bobby @ Robin for the offence punishable under Section 304 Part-II IPC
read with Section 149 IPC is maintained. The conviction of the appellants
for the offences punishable under Section 324 IPC read with Section 149
IPC and Section 148 IPC is maintained.
87. All of them are sentenced to undergo imprisonment for seven years
and pay fine in sum of `3,000/-, in default to undergo simple
imprisonment for three months. The conviction of all five for the offence
punishable under Section 324 IPC read with Section 149 IPC is
maintained and so is the sentence. The sentences shall run concurrently.
88. TCR be returned.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
OCTOBER 28, 2014/mamta
