Delhi High Court
Mukesh Kumar vs State Nct Of Delhi on 22 May, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Criminal Appeal 469/2012
Reserved on: 20th February, 2015
% Date of Decision: 22nd May, 2015
MUKESH KUMAR ..... Appellant
Through Mr. Jitendra Sethi, Advocate.
versus
STATE NCT OF DELHI ..... Respondent
Through Ms. Aashaa Tiwari, APP with
Inspector Joginder Singh, PS-Nabi Karim.
Criminal Appeal 471/2012
SACHIN AND ANR ..... Appellant
Through Mr. Jitendra Sethi, Advocate
for Sachin and Ms. Inderjeet Sidhu,
Advocate for Sunil.
versus
STATE NCT OF DELHI ..... Respondent
Through Ms. Aashaa Tiwari, APP with
Inspector Joginder Singh, PS-Nabi Karim.
Criminal Appeal 403/2012
JAGDISH PARSHAD ..... Appellant
Through Mr. Jitendra Sethi, Advocate.
versus
STATE NCT OF DELHI ..... Respondent
Crl A Nos.469/2012, 471/2012 & 403/2012 Page 1 of 32
Through Ms. Aashaa Tiwari, APP with
Inspector Joginder Singh, PS-Nabi Karim.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
SANJIV KHANNA, J.
This common judgment will dispose of the aforementioned
appeals filed by Mukesh Kumar, Sachin, Sunil and Jagdish Parshad.
The appeals impugn judgment dated 2nd March, 2012 in Sessions
Case No.55/10 arising out of charge sheet filed in FIR No.177/2006,
Police Station Nabi Karim and relate to the homicidal death of Anil
@ Pangey.
2. The appellants have been convicted under Section 302 read
with Section 149 of the Indian Penal Code, 1860 (IPC, for short),
apart from Section 147/148 of the IPC. By the impugned order on
sentence dated 14th March, 2012, the appellants have been sentenced
to undergo imprisonment for life for the offence under Section
302/149 IPC, to pay a fine of Rs.2 lacs each and in default of payment
of fine, to further undergo simple imprisonment for three years.
Cumulative fine of Rs.8 lacs has been directed to be paid to the legal
heirs of the deceased Anil @ Pangey as compensation. For the
offence under Section 147/148 IPC, the appellants have been
sentenced to rigorous imprisonment of one year each. The sentences,
it was observed, would run concurrently and benefit of Section 428 of
the Code of Criminal Procedure, 1973 (Cr.P.C., for short) has been
granted.
3. The impugned judgment also acquits Praveen Kumar, Shanky
and Vijay @ Vicky. Neither the State nor the victim has preferred
any appeal against their acquittal. As per the prosecution version,
another person, R (name withheld) was also involved in the
commission of the offence, but being a juvenile, he was tried under
the provisions of the Juvenile Justice (Care and Protection of
Children) Act, 2000. One Naresh was also charge-sheeted, but had
died during the pendency of the trial and the proceedings against him
have abated.
4. On the question of homicidal death suffered by Anil @ Pangey,
Dr. C.S. Aarthy (PW23) has deposed that on 6th June, 2006, at about
10 P.M., injured Anil @ Pangey was brought to the casualty ward by
his paternal aunt (bua), namely, Draupati (PW1) with alleged history
of assault by known persons. The injured was unconscious and there
were stab wounds over the lower left chest, CLW of 4 cm x 1 cm over
right arm and CLW of 5 cm x 1 cm over parietal region or scalp.
These facts were duly recorded in the MLC, marked Ex.PW23/A.
The injuries were fresh and caused by a sharp object. After receiving
first aid, the injured was referred to the surgery department. Post-
mortem of the deceased was conducted by Dr. Sharbana Kumar
Nayak (PW3), who testified that Anil @ Pangey had succumbed to
his injuries on 6th June, 2006, at 11.30 P.M. On examination, he
noticed the following external injuries:-
"1. Incised wound of size 4.6c.m x 1 cm part thickness of
skull situated almost horizontally over the middle or
posterior frontal region 11 cm behind the glabella. Margin
of the would (sic, wound) are found regular and right end
is found lying little bit anteriorly than the left 5 end 3 cm
right to the left end of anterior margin of the wound, one
lacerated wound of size 3cm x 0.5 c.m. x scalp deep
extends anteriorly to the right side, the anterior end ling 9
cm behind medial end of right eyebrow.
2. Stitched incised wound of 6 cm long containing 3 black
colour silk sutures situated almost horizontally on the
outer aspect of right arm, 15 cm below the right acromial
tip. On removal of sutures wound margines are found
regular, anterior end is acute whereas posterior end is
superficial (skin deep) for 1.5 c.m. Rest part of the wound
is muscle deep.
3. Abrasion of size 1.5 c.m. x 1 cm situated over the tip of
right shoulder.
4. Abrasion of size 1.5 cm x 1 cm situated over the right
shoulder blade 1.5 c.m medial to the previous injury.
5. Incised would of six (sic, size) 1.5 cm. 0.4 cm. x 0.3
cm. (subcutaneous tissue deep) situated horizontally on the
right side front of abdomen 10.5 c.m. above and 4 cm
away from the umbilicus (sic, umbilicus).
6. Stitched midline incised wound of 16 cm long
containing 7 black colour silk stitches on the front of
abdomen just above unblicus (sic, umbilicus). From the
upper end the wound, another stitched incised wound of
11 cm long extends downward and to the left along with
subcostal margin containing 4 black colour silk stitches.
The lower end of extended incised would lies 16 c.m
below the left nipple and 7 cm left lateral to the midline.
On removal of stitches, the wounds are found abdominal
cavity deep.
7. Stitches stab wound of 4.2 c.m. long containing 3 black
colour silk stitches situated almost vertically on the left
side anterior lateral aspect of chest 114 cm above the left
heel and 12 cm left lateral to the midline. On removal of
stitches the margins of upper end of the wound is found
irregular and surrounded by abrasion of 0.2 c.m. width.
The lower end of the wound is found acute whereas rest of
the wound margins are found regular. Left margin of he
(sic, the) wound 0.5 cm above the lower end show an
extension of incision for 0.3 c.m. in a downward and
outward direction with acute ending. The wound is found
abdominal cavity deep."
PW3 has also given details of the internal examination. He opined
that the cause of death was haemorrhage and shock as a result of
multiple injuries including „spleen injuries‟. The injuries were ante -
mortem in nature. External injury No.6 and absence of spleen were
due to surgical intervention. External injury Nos.1, 2, 5 and 7
together and external injury no.7 with corresponding internal injuries
individually, were fatal and in ordinary course of nature would have
caused death.
6. On the question of involvement of the appellants, the
prosecution primarily relies upon the testimony of Draupati (PW1),
who is stated to be an eye witness. Reliance is also placed on the
testimony of Premwati (PW5) and Chankey (PW8), brother of the
deceased Anil @ Pangey.
7. Draupati (PW1‟s) examination-in-chief was recorded on three
dates, viz. 19th February, 2007, 18th February, 2008 and 2nd April,
2008. She was cross-examined on 2nd April, 2008 and recalled for
further cross-examination which was conducted on 13th March, 2009
and 4th May, 2009. Learned counsels for the appellants are right in
their submission that the examination-in-chief and cross-examination
should be conducted without time-gap and delay. However, two facts
are noticeable. While adjourning examination-in-chief on 19th
February, 2007 and on 18th February, 2008, the court has recorded
that PW-1 was not feeling well. Secondly, the appellants themselves
were responsible for the adjournment, which was sought and granted
on 2nd April, 2008, on account of the fact that one of the accused on
bail was absent. The cross-examination on 13th March, 2009, was
deferred at the request of some of the accused, including the
appellants-Mukesh, Sachin and Jagdish Parshad.
8. We shall, while inquiring into and scrutinizing the deposition
of Draupati (PW1), examine the question of purported improvements
or discrepancies in her testimony and decipher and highlight what is
acceptable and should be treated as the true and correct version given
by Draupati (PW1). In her deposition on 19th February, 2007,
Draupati (PW1) had testified:-
"The 5 persons who came near us were Jagdish @
Jaggi, Suneel, Mukesh, Shanky and Sunny,
present in the court, (correctly identified) and all
of them were armed. Accused Jagdish Parshad @
Jaggi was having a knife in his hand, accused
Suneel was having a hockey in his hand, accused
Sunny was having a cricket stump (killi) in his
hand and Shanky was having danda in his hand
and accused Ravi was having a darati in his hand
(the tool used to cut grass). The other name of
accused Sunny is Sachin. I do not know the
names of accused persons who were standing at
some distance from our house, however, they are
present in the court today except accused R who
is facing trial in the Juvenile Court. The witness
has pointed towards accused Parveen, Vicky and
Naresh. Again said, accused Naresh was also
amongst those persons who came near us.
Accused Vikcy was having danda in his hand.
All the 5 persons named above who had come
towards us asked [email protected] about the
whereabouts of his brother, namely, Bunty.
Accused Suneel gave hockey blow on the head of
[email protected] and he became unconscious.
Thereafter, accused Suneel gave knife blows on
the hands of [email protected] Thereafter, accused
Naresh gave knife blow on the stomach of
[email protected]"
In her deposition recorded on 18th February, 2008, Draupati (PW1)
had stated:-
"...Five persons reached there from the side of
Chhota Mandir at about 9-9.30P.M. [email protected]
was also sitting with us. Those persons asked the
whereabouts of Bunty who was the brother of
Anil. Those persons took some steps towards us
and they talked "MAAR DO ISKO". The accused
Mukesh present in the court today gave Hockey
blow to Anil. Accused Naresh, Sunil and Sachin
were having knife in their hands who gave knife
blows on the stomach, arms, and on the shoulder
of Anil. Accused Naresh, Sunil and Sachin are
present in the court today, correctly identified.
The accused Jagdish also accompanied them.
When the accused persons gave the above said
blows I took out a thapki (shotha) which was
lying near me and threw away on the accused
persons...."
In the examination-in-chief conducted on 2nd April, 2008, Draupati
(PW1) had averred:-
"...Accused Mukesh gave hockey blow on the
head of the deceased. Accused Naresh and
Sachin were armed with knifes who gave blows
of the same to the deceased. Others were having
dandas. Accused persons namely [email protected],
Mukesh, Sunil, Naresh, Sachin, Salim, Shanky
and R, (witness correctly identified each
accused), are present in the court today. Again
said R is in children court while Praveen is
present in the court. They are the persons who
attacked the deceased in my presence."
9. We have intentionally quoted the deposition of Draupati (PW1)
recorded in her examination-in-chief on 19th April, 2007, 18th
February, 2008 and 2nd April, 2008, so that the alleged "in-
consistency" and "improvement" can be examined and understood.
In her first deposition, Draupati (PW1) had initially identified the five
assailants as Jagdish Parshad, Sunil, Mukesh, Sachin @ Sunny and one
Shanky. She immediately rectified her deposition and implicated
Naresh (since deceased) as amongst the five persons. Sunil, she
averred, had given the hockey blow and, thereafter, a knife blow.
Naresh (since expired) had also given a knife blow on the stomach of
Anil @ Pange. Draupati (PW1) has asserted that Jagdish Parshad had
a knife, Sunil had a hockey and Sachin @ Sunny had a cricket stump.
She claimed that Shanky was carrying a danda. The said Shanky, as
noticed above, has been acquitted. PW1 claimed that another person
R (Juvenile) had a darati. Draupati (PW1) in her examination-in-
chief recorded on 18th February, 2008, claimed that Mukesh had
given hockey blows and that Naresh (since deceased), Sunil and
Sachin were having knife in their hands and had given knife blows.
Draupati (PW1) implicated the appellant-Jagdish Parshad, stating that
he had accompanied them but did not attribute any actual act to him
for the injuries caused to Anil @ Pange. Similarly, in her deposition
recorded on 2nd April, 2008, PW1 had stated that Mukesh had given
hockey blows, Naresh (since deceased), Sachin, who were armed with
knife had given knife blows while others were having dandas.
10. What is discernible and apparent to us from the deposition of
Draupati (PW-1) is the certainty and certitude as to the presence of
Mukesh, Sunil and Sachin in the group of five or four persons who
assaulted the deceased. She had on each occasion taken the name of
appellant-Jagdish Parshad as a member of the group of five or four,
but had also referred to Shanky, Naresh (since deceased) and R
(juvenile). If we add Naresh (since deceased), Shanky and R
(juvenile) to the four appellants, the total number of assailants would
be seven. Draupati (PW1) is also the complainant and her statement
Ex. PW1/DA made to SI Surya Prakash (PW22), was the first
statement made immediately after the occurrence, at about 12.40
A.M. on 7th June, 2006. In the said statement, she had referred to the
presence of Premwati (PW5) and that Anil @ Pange was sitting and
conversing with them. At about 9.30 P.M., four or five boys,
including Mukesh, Sachin (Sunny) and Sunil, who were residing in
their neighbourhood, came there. There were two more boys with
them whom she did not identify by name, but claimed that she would
be able to recognise them if they are shown to her. Thus, in Ex.
PW1/DA, PW1 had identified and named the appellants Mukesh,
Sachin (Sunny) and Sunil, but it is apparent that the other two were
not identified by their names, inference being that PW1 did not know
them. Ex. PW1/DA records that Mukesh had enquired from
[email protected] about Bunty and on getting a non-confirmatory
response, had hit him on the head with a hockey stick stating that if
Bunty was not available, he (Anil @ Pangey) should be taken to task.
Sunil had stabbed Anil with a knife in his stomach and Sachin @
Sunny had stabbed him with a knife on his hand. [email protected] Pange fell
down. The assailants, thereafter, ran away. She has referred to the
earlier incident at 6.30 P.M. as the cause or reason for the said assault.
Thus, when we examine and read Ex. PW1/DA, it is confirmed and
affirmed that, at the earliest and first opportunity, Draupati (PW-1)
had specifically identified Mukesh, Sunil and Sachin as the
perpetrators. Two others were also present but weren‟t identified by
their names. Ex. PW1/DA refers to the name of the father of Mukesh,
Sunil and Sachin as Mohan Lal, which is correct. Conspicuously,
name of Jagdish Parshad is not mentioned. It also transpires that
Jagdish Parshad is not a young boy of the same age as Mukesh, Sunil
or Sachin. Appellant-Jagdish Parshad was about 48 years old on 10th
October, 2011, when his statement under Section 313 Cr.P.C. was
recorded, whereas Sachin, Mukesh and Sunil were between the age
group of 26-32 years at that time. Jagdish Parshad is the father of
Shanky, who has been acquitted by the trial court. It is apparent to us
that there is some discrepancy and uncertainty as to the identity of
other persons who had accompanied Mukesh, Sunil and Sachin and
were the participants present in the group of five or four assailants.
Except for the presence of Mukesh, Sunil and [email protected] Sunny,
presence of others including Jagdish Parshad is, therefore, debatable
and uncertain. Therefore, we would require corroboration, before
accepting the involvement of Jagdish Parshad. Draupati (PW1) had
propounded the two group catharsis; one group which came forward
and the other which remained in the background and this assertion
was the foundation for the prosecution of Praveen Kumar, Shanky
and Vijay @ Vicky. However, the trial court did not accept the two
groups version and, as noted above, it has acquitted Praveen Kumar,
Shanky and Vijay @ Vicky.
11. The second eye witness is Premwati (PW5). Her examination-
in-chief was first recorded on 4th September, 2008. In the said
examination, she testified that on 6th June, 2006, at about 8.30 or 9
P.M. she was sitting on a cot in front of her house with Draupati
(PW1) and they were talking to each other. In the meanwhile,
Ani[email protected] came there, sat on the same cot and started speaking to
them. At about 9.30 P.M., the accused persons (which would mean
reference to the four appellants, Naresh (since deceased), Praveen
Kumar, Shanky and Vijay (who have been acquitted) came there.
Except for Naresh (since deceased), whom she correctly identified,
Premwati (PW5) could not name the other accused, including the four
appellants. She asserted that the accused were armed with knife,
dandas and hockies, but she was unable to recollect and associate the
weapon with each accused. [email protected] was given blows with knife,
dandas and hockies. Alarm was raised, but before people could react,
the accused persons escaped towards Gali No. 9. Premwati (PW5)
was cross-examined on 7th July, 2009. In her cross-examination, she
deposed that a mob had come to kill [email protected] Pange, son of her sister.
She was present at the place of occurrence but could not state as to
who had inflicted injuries upon [email protected] since she had fainted on
seeing the mob. Further, there was darkness as the street light was not
working. On being cross-examined by the Additional Public
Prosecutor, PW5 denied that she had named Sachin, Mukesh, Sunil,
Jagdish Parshad and others in the court on 4th September, 2008. She
claimed that her deposition of 7th July, 2009 was correct and whatever
was deposed on 4th September, 2008 was untrue. Voluntarily, she
added that some persons had assaulted [email protected] and caused
injuries upon him with knife and dandas and that she had not seen
who had assaulted [email protected] as there was a big mob. While being
cross-examined, she voluntarily declared that she was an illiterate
lady aged sixty years and on the said date, her husband was seriously
ill.
12. On reading the deposition of Premwati (PW5), it is lucid that in
her first version i.e. her examination-in-chief recorded on 4th
September, 2008, PW5, without naming, had identified the four
appellants. She had certainly deposed that she knew that they had
come to the spot. At the same time, she had also referred to the
presence of Praveen Kumar, Shanky, Vijay and Naresh (since
deceased). She did not differentiate or refer to two groups as has
been deposed to and stated by Draupati (PW1). We have already
referred to the first statement of Draupati (PW1) (Ex. PW1/DA). The
said statement does not mention about the presence of two groups or
the factum that a group of four persons had stayed back at a distance
and the second group consisting of five boys had come forward and
assaulted [email protected] In these circumstances, we would hold that
Premwati (PW5) has partly corroborated the statement of Draupati
(PW1) to the extent of involvement of Mukesh, Sunil and Sachin @
Sunny, that they were the persons who were present at the place of
occurrence and had assaulted the deceased [email protected]
13. The prosecution has also relied upon and claimed that Chankey
(PW8) was the third eye-witness. In the impugned judgment, the trial
court has observed that the deposition of PW8 (brother of deceased
[email protected]), was weak and quite suspicious, after noticing the fact
that neither had he taken the injured [email protected] to the hospital nor
had he informed the police. Moreover, he had not met the police at
the spot. It is also recorded that Chankey (PW8), in his cross-
examination, had accepted the suggestion that the accused, including
the four appellants, had already fled away from the spot by the time
he came down from his room. Yet, the trial court has observed that
PW8‟s testimony is not totally redundant as he had seen the accused,
including the four appellants assemble close to the spot at 9.15 P.M.
with the weapons of offence, which were used in the occurrence.
Trial Court observed that his testimony would be relevant because he
had seen the accused, including the four appellants, minutes before
the assault. We would observe and hold that the testimony of
Chankey (PW8) is not reliable and credible for the reasons rightly
recorded by the trial court. However, we would also disbelieve and
discard PW8‟s assertion that he had seen the accused, including the
appellants, before the occurrence while returning from work. In his
cross-examination, PW8 had stated that he had heard the noise "save
me save me" (bachao bachao) and, thereafter, had rushed to the place
of occurrence. Initially, he claimed that he had seen the injured lying
and became perplexed and, therefore, did not run after the accused
and had called out his elder brother Sunil. Subsequently, when cross-
examined, PW-8 accepted that when he reached the spot,
[email protected] had already been removed to the hospital. PW8
accepted that he did not accompany [email protected] to the hospital and
did not inform the police as well. On further cross-examination, he
accepted as correct the suggestion that the accused had already fled
from the spot by the time he came down. He denied the suggestion
that he had seen [email protected] going to the hospital with Rajesh
(PW6), Premwati (PW5) and Draupati (PW1). He accepted as correct
that he was informed by his uncle that the injured had been taken to
the hospital about ten minutes back and thereafter, he and Sunil
proceeded to the hospital. His clothes were not blood-stained, though
he claimed that his hands had blood-stains. Noticeably, Draupati
(PW1) and Premwati (PW5) have not deposed and affirmed about the
presence of Chankey (PW8) at the spot.
14. What is also noticeable is that Rajesh (PW6), brother of
Chankey (PW8) and the deceased [email protected], had stated that on 6th
June, 2006, at about 9.30 P.M., he was present on the first floor of his
house and had heard some noise in the street (gali). He saw that
[email protected] had been injured and was lying on the cot. Premwati
(PW5) and Draupati (PW1) were present in the street making hue and
cry. Draupati (PW1) and Premwati (PW5), at that time, had told him
that sons and family members of Taro and Heero had given beating to
[email protected] with knife, hockey and danda and had run away from
the spot. Rajesh (PW6) had brought a cycle rickshaw and had taken
[email protected] to the hospital with the help of Premwati (PW5) and
Draupati (PW1). Rajesh (PW6) has not deposed and affirmed about
the presence of Chankey (PW8) at the place of incident.
15. At this stage, we would like to deal with contentions raised on
behalf of the appellants-Mukesh, Sunil and Sachin, to reject the
prosecution case against them, to disbelieve Draupati (PW-1) and to
reject the reliance placed on the part-testimony of Premwati (PW5).
Similarly, contentions in alternative have also been raised on behalf
of the appellant-Jagdish Parshad.
16. The first submission made on behalf of the appellants was that
Draupati (PW1), on 13th March, 2009, in her cross-examination on
behalf of Vijay @ Vicky and Naresh (since deceased), had stated that
her first statement was recorded in the hospital on 6th June, 2006, at
9.30 P.M. It has been submitted that in spite of the said assertion, the
Additional Public Prosecutor did not re-examine PW1 and, therefore,
the said statement of PW1 should be treated as correct. It is not
possible to accept this argument. The MLC (Ex. PW23/A) of the
deceased was recorded on 6th June, 2006, at 10 P.M. Anil @ Pangey,
thereafter, died at about 11.30 P.M. on the same day. This minor
mistake or error in the oral deposition as to the time when statement
of PW1 was recorded would not overthrow and set at naught the
entire prosecution case. Perfection and eidetic recollection should not
be expected and is not required. Human imperfections and
fallibilities, which occur when a person recalls and reminisces, are
natural and normal. There is ample evidence, which we have referred
to and will be referring to subsequently, to show that the statement
(Ex. PW1/DA) of Draupati (PW1) as to the factum of occurrence,
which was subsequently recorded as the FIR (Ex. PW27/A), was
made at 12.30 A.M., on 7th June, 2006. We have the testimonies of SI
Surya Prakash (PW22) and Insp. Jogender Singh (PW26) to the said
effect. It may be noticed that Draupati (PW1) was illiterate. Thus,
PW1, in her cross-examination on 13th March, 2009, was unable to
recollect the exact time of recording of her statement (Ex. PW1/DA).
It is noticeable that in her cross-examination on 4th May, 2009, PW1
had stated that she could not tell the time when Ex. PW1/DA was
recorded. However, PW1 has been unambiguous and categorical
about the three appellants (Mukesh, Sunil and Sachin) in her cross-
examination on 13th March, 2009. Similarly, the contention of the
appellants that PW1 has stated that her statement (Ex. PW1/DA) was
recorded in the police station, would not affect the prosecution case in
view of the time gap, imperfections and vulnerabilities associated
with human memory and the factum that PW1 was an illiterate
person.
17. Learned counsel for the appellants have referred to the fact that
in Ex. PW1/DA, the name of Mohan Lal, father of the appellants
Mukesh, Sachin and Sunil is mentioned. PW1 voluntarily stated that
the said accused persons had disclosed the name of their father and,
therefore, she had mentioned the same in her statement. Undisputed
position is that the appellant Mukesh, Sachin and Sunil had not been
detained or arrested when Ex.PW1//DA was recorded. The said
assertion of PW1 is obviously incorrect and should be rejected. On
this aspect, we would like to state that PW1 has deposed that she
knew the accused person, i.e. the persons who had assaulted Anil @
Pange, as already noted in the MLC (Ex.PW23/A). The statement of
Draupati (PW1) (Ex.PW1/DA) was recorded past midnight at about
12.15 A.M. By that time, several others including the relatives of the
deceased Anil @ Pangey had reached the hospital. There is ample
evidence to show that these persons knew the parentage and other
details of the assailants. We do not think that reference to parentage
of the assailants i.e. the three appellants would justify rejection of the
eye witness testimony or is a valid ground to question the identity of
the three appellants-Mukesh, Sunil and Sachin as mentioned in
Ex.PW1/DA. As to the presence of family members, we would like
to make reference to the cross-examination of Chankey (PW8) on 3rd
November, 2009, wherein he had asserted that, at the time of death of
Anil @ Pangey, Sunil, PW8‟s elder brother; Vijay Kumar (PW2),
who had identified the dead body of Anil @ Pangey; Rajesh (PW6);
Draupati (PW1); Premwati (PW5); Roshan, PW8‟s Chacha; Pappy
bhai; Nikki bhai; Mukesh bhai; Ashok bhai; Lale Chacha; Kammo
Chachi; and other relatives were present in the hospital. SI Surya
Prakash (PW22) also stated that 5-7 relatives of the deceased were
present in the hospital.
18. We have already referred to and elucidated why testimony of
Draupati (PW-1) identifying and naming the appellants Mukesh,
Sunil and Sachin should be accepted. The contention that the version
of Premwati (PW5) is at variance with the testimony of Draupati
(PW1) has been rejected. We reiterate that on the question of
involvement of the three appellants, we are inclined to accept the
version given by Premwati (PW5) to the extent it relates to the
presence of Draupati (PW1) at the place of occurrence. The fact that
Premwati (PW5) was not able to identify the appellants by name
would not negate or topple the prosecution case. PW5 did state that
she did not know the assailants except Naresh (who has died).
Further, the occurrence in question had taken place about 3 years
before the date of her examination in the court. She was an illiterate
lady of about 60 years of age. She has deposed that her husband was
ailing. It is obvious that she was under pressure and constraint. The
deposition of PW5 does emphatically support the prosecution version
about the presence of Draupati (PW1) at the place of occurrence and
that she had seen the occurrence. This fact is also asserted and
corroborated by Rajesh (PW6).
19. At this stage, it would be appropriate to refer to the site plan
(Ex. PW26/A), which was proved by Insp. Jogender Singh (PW26),
and scaled site plan (Ex.PW10/DA) proved by Ct. Rajesh Kumar
(PW10). The site plan (Ex.PW26/A) indicates a cluster of small
tenements bearing the same house number, i.e. 8004/10, where the
deceased Anil @ Pangey, Draupati (PW1), Premwati (PW5) and
several others used to reside. These were like one room dwelling
units with adjoining walls without any gap/distance between them. In
places where there is cluster-living in small tenements, whenever
violence or occurrence of such nature takes place, neighbours do tend
to come out immediately. Reaction could, in many cases, be
instantaneous and without any time gap, but this does not mean that
each one in the neighbourhood, would have seen the accused. Two
neighbours Draupati (PW1) and Premwati (PW5) have deposed.
Rajesh (PW6) was present, but by the time he came down, the
perpetrators had fled. The contention that the other neighbour did not
join has to be rejected. The prosecution evidence cannot be
disbelieved for this reason.
20. Rajesh (PW6) has also affirmed the presence of Draupati
(PW1) and Premwati (PW5) and that they had raised a clamour. They
informed PW6 that family members of Heero and Taro had given
beatings to Anil @ Pangey with knife, lathi, dandas and hockey. On
the same day, earlier at about 6 P.M., quarrel had taken place between
Bunty, brother of the deceased Anil @ Pangey, and the assailants. He
asserted that the accused including the appellants were the family
members of Heero and Taro. In the cross-examination, PW6
reiterated that Taro and Heero were sisters and he knew them as they
used to reside near his house. He had been residing there for the last
20 years. The contention of the appellants that the alleged blood -
stained shirt of Rajesh (PW6) was not seized, would not shake the
prosecution version. It would be illusory and unwise to reject and
discard the testimony of Rajesh (PW6) for this lapse or failure on part
of the investigating authorities.
21. On the question of any earlier fight and quarrel, in the evening
at about 6 P.M., on 6th June, 2006, we have the deposition of HC
Satbir Singh (PW28). On 6th June, 2006, at 6.17 P.M., PW28 was
marked DD No. 40B regarding quarrel at House No. MHC-82,
Yogmaya Mohalla, Nabi Karim. PW28 along with Ct. Raj Kumar, on
reaching the spot, had learnt that the injured had been taken to the
Lady Hardinge Medical College and Hospital. PW28 went there and
collected the MLCs of Heero and Taro. He had recorded the
statement of Heero and FIR No. 176/06 under Sections 325/341/506
IPC was registered. The aforesaid FIR and other documents have not
been brought on record, but according to us, this would not be a
ground to ignore and not accept ocular testimony of Rajesh (PW6)
and HC Satbir Singh (PW28). Testimony of Rajesh (PW6) and HC
Satbir Singh (PW28) indicate and establish the propelling cause and
the motive behind the fatal attack on Anil @ Pangey. The attack was
in retaliation for the injuries caused to Heero and Taro. It is proved
beyond doubt and an accepted position that the appellants herein are
family members and are related to Heero and Taro.
22. Now, we would like to take on record another corroborative
and supporting evidence, which would show that Draupati (PW1) had
taken Anil @ Pangey to the hospital. We would refer to the two
chunnis, Exs.P1 and P2, which were tied around the waist/stomach of
Anil. As per the CFSL report (Ex.PW26/O), blood was found on
Ex.1d and Ex.2, i.e. the two dupattas/chunnis. As per the serological
examination, human blood of „AB‟ group was found on the clothes
worn by the deceased and on Ex.2. Human blood was detected on
dupatta (Ex.1d), but blood group could not be ascertained for want of
reaction (see report, Ex.PW26/P).
23. Head Constable Mahesh (PW30) has testified that on 6 th June,
2006, at about 9.30 or 9.45 P.M., he had received information that a
person named Anil @ Pangey had been stabbed by someone. PW30
recorded the said information in the PCR form and flashed the
message through the Communication Branch. ASI Iqbal Singh
(PW18) has deposed that DD No. 51B (Ex.PW22/A) was marked to
him and that he along with Ct. Rajpal (PW9) had reached the house of
Anil at 8004, Gali No.10, Multani Dhanda, Nabi Karim. In the
meantime, SI Surya Prakash (PW22) and Insp. Jogender Singh
(PW26) reached the spot and were informed that the injured had been
taken to the hospital. ASI Iqbal Singh (PW18) and Insp. Jogender
Singh (PW26) left for the hospital leaving Ct. Rajesh (PW10) and
Rajpal (PW9) at the spot. SI Surya Prakash (PW22) recorded the
statement of Draupati (PW1), prepared rukka and handed over the
same to ASI Iqbal Singh (PW18) for registration of FIR. Thereafter,
ASI Iqbal Singh (PW18) left for the police station, got the FIR
registered and came back at the spot, where he met SI Surya Prakash
(PW22) met Insp. Jogender Singh (PW26) and handed over the copy
of FIR to him. In the cross-examination, PW18 reiterated that he had
reached the police station with the rukka at about 12.35 A.M. and had
reached the spot after recording the FIR at about 1.45 A.M.
24. SI Surya Prakash (PW22) has affirmed and supported the
prosecution case. He had first proceeded to the spot and then to the
hospital, where he had recorded the statement of Draupati (PW-1),
aunt of the deceased Anil @ Pangey. He had collected the MLC of
the injured Anil @ Pangey (Ex.PW23/A). After Anil @ Pangey was
declared dead by the doctors, SI Rajesh came to the hospital with DD
No.24A, (Ex.PW22/B) regarding death of Anil @ Pangey. The
doctor had handed over the clothes of the deceased to him, which
were seized and sealed by him vide seizure memo, Ex.PW22/C and
Ex.PW22/D. Rukka was prepared and handed over to ASI Iqbal
Singh (PW18) for registration of FIR, who later came to the spot with
the copy of the FIR. Crime team had also reached the spot and had
cut the Niwar (plastic patti) of the cot, which was seized vide seizure
memo, Ex.PW11/A. He has also deposed as to the two chunnis,
Exs.P1 and P2, which were taken into possession and seized from
Draupati (PW1). In the cross-examination, PW22 has stated that he
had reached the spot of occurrence at about 10 P.M., but at that time
he did not meet any eye witness.
25. Inspector Jogender Singh‟s (PW26) deposition is identical and
he has referred to the factum that statement of Draupati (PW1), a
relative of Anil @ Pangey was recorded in the hospital by SI Surya
Prakash (PW22), who had also prepared the rukka. Thereafter, ASI
Iqbal Singh (PW18) had gone to the police station along with rukka
and the FIR was registered. He had prepared the unscaled site plan
(Ex.PW26/A), conducted inquest proceedings, filled up Form
No.25.35 and prepared brief facts (Ex.PW26/C).
26. From the aforesaid testimonies and evidence, it is apparent that
the contention of the appellants that the FIR is ante-timed is untenable
and baseless. We notice that the FIR (Ex.PW27/A) has the
endorsement of the Additional Chief Metropolitan Magistrate that he
had received the same at his residence at Gulabi Bagh on 7th June,
2006 at 9.55 A.M. The factum that the FIR (Ex.PW27/A) was duly
sent to the authorities is also recorded in the computer version of the
said FIR placed on record.
27. The contention of the appellants that the aforesaid police
officers had never reached the hospital till 11.30 P.M. or even
thereafter, relying upon DD Entry No. 24A marked Ex.PW22/B is
unacceptable and merits rejection. The said DD entry was recorded at
11.50 P.M., on 6th June, 2006, at police station Nabi Karim. The said
entry does mention that a police officer should be sent to the hospital,
but this does not mean that no police officer was already present in
the hospital. SI Surya Prakash (PW22) has stated that SI Rajesh had
met him in the hospital along with DD Entry No.24A (Ex.PW22/B).
HC Jai Singh (PW-15) has stated that in the intervening night of 6th
and 7th June, 2006, he was posted at the mortuary of Lady Hardinge
Medical College and Hospital. On that day, SI Rajesh had met him
and dead body of Anil @ Pangey was preserved.
28. Learned counsel for the appellants has laid considerable
emphasis on the fact that SI Rajesh was not cited and produced as a
witness. SI Rajesh was cited as a witness but did not depose. We do
not think that failure to record deposition of SI Rajesh would
materially affect the prosecution case, so as to disbelieve the
prosecution evidence on record.
29. From the aforesaid discussion, it is apparent that the
prosecution version has to primarily rely upon the testimony of
Dropati (PW1). Contrary to the complaint (Ex.PW1/DA), which made
reference to Mukesh, Sachin @ Sunny and Sunil and one or two
others, PW1 had tried to implicate as many as 9 persons in two
groups of 5 and 4 persons all belonging or connected with the family
of Taro and Heero. Resultantly, Sections 147/148 IPC were also
invoked and as noticed above, the appellants have been also convicted
under Sections 147/148 IPC and convicted for rigorous imprisonment
for one year. The trial court had acquitted Praveen Kumar, Shanky
and Vijay @ Vicky. Naresh who was charge-sheeted had died during
the course of proceedings and one R (name withheld) being a juvenile
was dealt with under the Juvenile Justice (Care and Protection of
children) Act, 2000.
30. We have also referred to the testimony of Prem Wati (PW5)
and observed that we would believe the testimony only to the extent
of involvement of Mukesh, Sunil and Sachin @ Sunny noticing her
statement recorded on 4th September, 2008 and then on 7th July, 2009.
We have partly accepted the testimony of Premwati (PW6) for
upholding convicting of Mukesh, Sunil and Sachin @ Sunny.
31. We have rejected the testimony of Chanki (PW8) on the ground
that he was not an eye-witness and his assertion as to unlawful
assembly prior to the occurrence is unbelievable and untrustworthy.
We have, therefore, proceeded with caution and care to ensure that
no-one is falsely implicated and have sustained the conviction of
Mukesh, Sunil and Sachin (Sunny) who were named at the very
instance of Draupati (PW1) as recorded in Ex.PW1/DA. The
appellant Jagdish Parshad would be entitled to benefit of doubt and
hence his appeal is allowed and his conviction and sentence are set
aside.
32. This brings us to the question of sentence. In paragraph 2
above, we have noticed that the appellants Mukesh, Sachin @ Sunny
and Sunil have been convicted under Sections 147/148 IPC as well as
Sections 302 read with Sections 149 IPC. It was highlighted that in
Ex. PW1/DA, Draupati (PW1) had referred to presence of 4 or 5
persons though she had specifically named Mukesh, Sunil and Sachin
@ (Sunny). Ex.PW1/DA does indicate that in addition to the 3
convicted appellants, 2 more persons were present and even if they
were not identified or arrested, conviction under Sections 147/148
IPC can be sustained. However, if only one person was present,
conviction under Section 147/148 cannot be sustained. We would
prefer to rely upon Section 34 IPC in the present case in view of the
specific involvement of Mukesh, Sunil and Sachin @ Sunny. They
were present at the spot and had inflicted injuries with common
intention. As noticed above, possibly Section 147/148 IPC were
invoked because initially as per the prosecution, possibly 9 persons
were the perpetrators and involved in the occurrence. Thus, we
would prefer to convert the conviction of the appellants Mukesh,
Sunil and Sachin @ Sunny to Section 302 read with Section 34 IPC
instead of Section 302 read with Section 149 IPC. The 3 appellants
should not be separately punished under Sections 147/148 IPC. We
record that the trial court had observed that sentences would run
concurrently. We uphold the trial court order awarding the sentence
of imprisonment for life imprisonment. Fine of Rs.2 lacs stands
imposed on the appellants and it has been directed that the amount
recovered through the fine would be paid to the legal heirs of the
deceased Anil @ Pangey as compensation. In default of payment of
fine, the appellants have been directed to undergo simple
imprisonment for three years. Considering the facts, we reduce the
amount of fine to Rs.10,000/- each and in default, the three convicted
appellants shall undergo simple imprisonment of one year.
33. We feel that it would be appropriate and proper to direct that
the convicted appellants Mukesh Kumar, Sunil and Sachin @ Sunny
shall pay the compensation of Rs50,000/- each under Section 357,
Cr.P.C. We have fixed the amount of compensation keeping in view
the facts of the case, nature of the crime as well as the capacity of the
appellants to pay the compensation.
34. Appeal filed by Jagdish Parshad (Crl.A. No. 403/2012) is
accordingly allowed and his conviction is set aside. Appeals filed by
Mukesh Kumar, Sunil and Sachin @ Sunny challenging their
conviction under Section 302 IPC are dismissed and they are
convicted under Section 302 IPC read with Section 34 IPC instead of
Section 149 IPC. Mukesh Kumar, Sachin @ Sunny and Sunil have
not been separately convicted and punished under Section 147/148
IPC. The appellants Mukesh, Sachin @ Sunny and Sunil are
sentenced to imprisonment for life under Section 302 IPC. They shall
also pay a fine of Rs 10,000/- each and in default of payment of fine,
they shall undergo simple imprisonment for six months. Appellants
Mukesh Kumar, Sunil and Sachin @ Sunny have also been directed
to pay the amount of Rs 50,000/- each as compensation to the legal
heirs of Anil @ Pangey under Section 357, Cr.P.C. Appeals are
accordingly disposed of. Trial Court Records will be sent back.
(SANJIV KHANNA)
JUDGE
(ASHUTOSH KUMAR)
JUDGE
May 22nd, 2015
NA/VKR/KKB
