Delhi High Court
Rahul @ Puneet @ Philip Thr. ... vs State on 14 October, 2015
Author: R. K. Gauba
$~R-35 to 38 (Part-A)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 7th September, 2015
% Date of Decision : 14th October, 2015
+ CRL.A. 549/2012
RAHUL @ PUNEET @ PHILIP
THR. PAROKAR RAJINDER ..... Appellant
Through Mr. Azhar Qayum, Adv.
versus
STATE ..... Respondent
Through Ms. Aashaa Tiwari, APP with
Insp. Bageshwar Kaushik, PS-
Anand Vihar
CRL.A. 581/2012
SANDEEP ..... Appellant
Through Mr. K. B Andely, Sr. Adv.
with Mr. Mohd. Shamik, Adv.
versus
STATE ..... Respondent
Through Ms. Aashaa Tiwari, APP with
Insp. Bageshwar Kaushik, PS-
Anand Vihar
CRL.A. 856/2012
PANKAJ KUMAR ..... Appellant
Through Ms. Saahila Lamba, Adv.
versus
STATE ..... Respondent
Through Ms. Aashaa Tiwari, APP with
Insp. Bageshwar Kaushik, PS-
Anand Vihar
CRL.A. 1140/2012
CHET RAM @ RAVI ..... Appellant
Through Mr. S B Dandapani, Adv.
versus
STATE ..... Respondent
Through Ms. Aashaa Tiwari, APP with
Insp Bageshwar Kaushik, PS-
Anand Vihar
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.K.GAUBA
R. K. GAUBA, J:
1. This case may be described as one of murder over paaparh (a
savoury Indian snack made with round flattened wafer-thin dough,
generally served after roasting or frying). The four appellants herein
have been held guilty, primarily on the basis of ocular evidence, on
the allegations that they, on feeling infuriated over not being timely
served with the savoury, in spite of demand and wait, in furtherance
of their common intention knifed four persons, one after the other,
one of the wounded ones dying as a result.
2. The venue of the incident that occurred statedly at about 10.30
PM on 11.10.2008, which is subject matter of the case from which
these appeals arise, was an eatery run in the name of "Zaika Bar and
Restaurant", Community Centre, Karkardooma, Delhi (hereinafter
referred to as "the restaurant"), within the jurisdiction of Police
Station Anand Vihar. Four persons received stab injuries, they being
Shahid (who resultantly died), Sheikh Pappu (PW-4), Mohd. Jaffar
(PW-5) and Mohit Dhingra (PW-19). Mohit Dhingra (PW-19) is the
son of Rajesh Dhingra who, in turn, owns the restaurant. He (PW-19)
would assist his father in running the establishment. Shahid
(hereinafter referred to as "the deceased"), Sheikh Pappu (PW-4),
Mohd. Jaffar (PW-5) and Raju (the first informant) were employed in
the restaurant- the former three as cooks and the fourth one as a
bearer (waiter). The FIR (Ex.PW-1/B) was registered at 02:20 hours
on 12.10.2008 on the basis of rukka (Ex.PW-12/C), sent by ASI
Yashpal (PW-12) primarily founded on the statement (Ex.PW-12/B)
made by Raju before PW-12, after the latter had reached the place of
occurrence pursuant to intimation vide DD No.32A (Ex.PW-1/A)
given telephonically by the said Raju to the Police Station at 23:12
hours on 11.10.2008.
3. On the basis of evidence gathered during the investigation into
the aforesaid FIR, the four appellants were put to trial in sessions case
No.13/2009, they being Rahul @ Puneet @ Philip (Accused No.1),
Pankaj Kumar (Accused No.2), Sandeep (Accused No.3) and Chet
Ram @ Ravi (Accused No.4). The trial was held on the charge for
offence under Sections 302 read with 34 IPC for the murder of
Shahid, under Section 307 read with Section 34 IPC for attempted
murder of Sheikh Pappu (PW-4) and Mohd. Jaffar (PW-5), and under
Section 324/34 IPC for simple injuries inflicted with sharp edged
weapon to Mohit Dhingra (PW-19). In addition, Rahul (A-1) was
also charged for offence under Section 25 of Arms Act on the
allegations that he had been found in possession of a country-made
pistol of prohibited category with one live round of ammunition.
4. By judgment dated 30.03.2012 of the trial court, all the four
appellants were held guilty, as charged, by the Additional Sessions
Judge. By separate orders, each passed on 04.04.2012, the trial court
awarded life imprisonment with fine of ₹1,000/- for offence under
Section 302/34 IPC, rigorous imprisonment for five years with fine of
₹1,000/- for offence under Section 307/34 IPC and rigorous
imprisonment for two years with fine of ₹500/- for offence under
Section 324/34 IPC to each of the four convicts. It was directed that,
in case of default in the payment of fine, they shall undergo simple
imprisonment for one month, one month and fifteen days
respectively. Rahul (A-1) was also awarded rigorous imprisonment
for two years with fine of ₹500/- and in default simple imprisonment
for 15 days for the offence under Section 25 of Arms Act. All the
sentences were directed to run concurrently with benefit of Section
428 Cr.P.C. also accorded.
5. Feeling aggrieved with the judgment dated 30.02.2012 and
orders on sentence dated 04.04.2012, the convicted persons have
come up with these appeals.
6. The evidence showing that Mohit Dhindra (PW-19) is the son
of the owner of the restaurant and would assist him in running the
same and was present at the place when the incident occurred was not
disputed at the trial. Further, the evidence showing that Sheikh Pappu
(PW-4), Mohd. Jaffar (PW-5), Shahid (the deceased) and Raju (the
first informant) were employed in the restaurant has also gone
unchallenged.
7. The fact that Shahid died a homicidal death is not disputed.
There is abundant material on record to substantiate the case for the
prosecution to such effect. The testimonies of Sheikh Pappu (PW-4)
and Mohd. Jaffar (PW-5) about the stabbing of Shahid in the kitchen
area of the restaurant some time around 10.30 PM on 11.10.2008 is
confirmed by the Medico Legal Report (MLC) of the deceased,
prepared in Max Balaji Hospital where three of the injured persons
had been taken. The MLC (Ex.PA-3) was admitted by the appellants
under Section 294 of the Code of Criminal Procedure (Cr.P.C.) by
statement made on 14.03.2012. The admitted document shows that
deceased Shahid, then in injured state, had been brought to the said
hospital at 11.30 PM on 11.10.2008 with stab injury across his
abdomen. The document notes that the deceased had been first taken
to Shanti Mukund Hospital from where he was shifted to Max Balaji
Hospital. Shahid was unconscious and not responding to the
commands. His vital signs indicated he was in critical state. The
deep injury across the abdomen showed owenter and intestines in
exposed condition. He was referred to surgery department for further
management. He succumbed to the injuries at 08:30 hours on
12.10.2008 during treatment. Information about the said event was
communicated to the Police Station immediately whereupon it was
recorded vide DD No.17A, PW-1/D by Head Constable Rajender
Kumar (PW-1), the duty officer. It was also documented in the death
report (PW-20/C) prepared by Inspector Bageshwar Kaushik, the
Investigating Officer (IO), who had prepared the inquest papers
including brief facts (Ex.PW-20/D), with which he had later
submitted application for post-mortem examination on the dead body
(Ex.PW-20/D1) reiterating the date and time of reported death in the
hospital.
8. The post-mortem examination on the dead body of Shahid was
conducted by Dr. S. Lal (PW-9), who proved his report (Ex.PW-9/A)
confirming, with no contest from the defence, the fact that the
autopsy had revealed the following ante mortem injuries :
"1. Surgical laprotomy would in middle abdomen from
xiphi to paraumblicus region of size 21 x 0.1 cm with
stitches and the drainage wound on left side middle
abdomen.
2. Stab incised wound surgically stitch, on opening the
stitches the size of the wound is 4.5 x 0.2 cm x cavity
deep, obliquely placed over left side upper abdomen.
The lower outer angle of wound is acute and the other
angle is blood. The wound is placed 5 cm away from
midline and 16 cm below the left nipple. The wound
enter the abdomen cavity in downward and backward
direction by cutting lower inter costal cartilage and then
given the nick in small intestine which is surgically
repair in hospital. The total depth of the wound is
approximate 14 cm.
3. Stab incised wound surgically stitched, on opening the
stitches the size of the wound is 3.2 x 0.2cm x cavity deep
in left side upper abdomen, obliquely placed. The lower
outer angel is acute and the other angle is blunt. The
wound is placed 15 cm left to midline and 17 cm below
the left nipple. The wound enter the abdomen cavity in
downward and inward direction to cut the intestine
where surgically repair seen. Total depth of the wound
is about 13 cm.
4. Stab incised wound 0.9 x .0.2 x 1 cm deep present over
left side lower chest over anterior axillary line, obliquely
placed. The lower inner angle is acute and the other
angle is blunt. The wound is placed 4 cm outer to injury
No.3.
5. Stab incised wound surgically altered by midline
incision of size 1.6 x 0.2 cm x cavity deep over left side
epigastric region, horizontally placed outer angle is
acute and the other angle is merged with the incision
given in the midline. The wound is placed just outer to
midline and 2 cm below the xiphi-stenum. The wound
enter the abdomen cavity and cut the distal part of
greater curvature of stomach which is surgically
repaired in hospital. The total depth of the wound is
about 10 cm.
6. Incised wound surgically stitched of size 6 x 0.1 cm x
muscle deep over left dorsum of lower one-third of arm,
obliquely placed and 4.5 cm above the knuckled of
elbow."
9. Opinion of the autopsy doctor is as follows :
"the cause of death is hemmorahgic shock consequent
upon stab injury on abdomen produced by single pointed
sharp edged weapon and sufficient to cause death in
ordinary course of nature. Injury No.1 was caused by
surgical intervention and injury No.2 to 6 was caused by
single pointed sharp edged weapon. Injury No.2,3,4 and
5 were sufficient to cause death in ordinary course of
nature both individually and collectively. All injuries
were antemortem in nature and fresh in duration. Time
since death was approximately consistent with the time
mentioned in the death certificate."
10. The autopsy report vividly shows that Shahid was stabbed
thrice in the abdominal region and once in the lower chest on the left
side. Given the nature of these stab wounds the body parts where
they were directed and the depth thereof (particularly injury nos.2,3,4
and 5), there is no doubt about the fact that the assailant(s) had
inflicted the said wounds intentionally and with knowledge that such
injuries were likely to result in death will have to be attributed. In
this view of the matter we uphold the finding of the learned trial court
that the death of Shahid was a case of culpable homicide. We reserve
to a later stage our judgment on the issue as to whether this culpable
homicide amounted to murder or not, in the light of the ocular
evidence to be noted in due course hereinafter.
11. The evidence about the stab injuries suffered by Sheikh Pappu
(PW-4), Mohd. Jaffar (PW-5) and Mohit Dhingra (PW-19) is also
beyond reproach. Dr. S.K.Tiwari (PW-6) has referred to MLCs
(Ex.PA2 and PA4) of Sheikh Pappu and Mohd. Jaffar respectively as
documents Mark „A‟ and Mark „B‟ respectively. The MLCs had been
prepared in the casualty of Max Balaji Hospital. The authors of these
MLCs have not been examined as the documents (Ex.PA-2 and
Ex.PA-4) were admitted under Section 294 Cr.P.C. by the appellants
on 14.03.2012. PW-6 with Dr. A. Sabharwal had examined both the
said injured persons and had recorded opinion thereupon in the
general surgery unit of the hospital. Both the documents show that
these persons had been earlier taken to Shanti Mukund Hospital from
where they were shifted to Max Balaji Hospital.
12. The MLC Ex.(PA2) in respect of Sheikh Pappu (PW-4) shows
that he was brought in the hospital at 11:50 PM on 11.10.2008 with
history of stab injury across abdomen suffered at 10 PM in the Zaika
Restaurant. The MLC noted that Sheikh Pappu (PW-4) had suffered
two stab injuries, one in the abdominal region and the other on the
mid right arm. In the opinion of PW-6, recorded in due course, the
injuries were dangerous. Similarly, according to the MLC (Ex.PA4),
Mohd. Jaffar (PW-5) had been brought in the hospital at 11:50 PM
with history of stab wound inflicted over the abdomen around 11 PM
at Zaika Restaurant. The stab injury found suffered by Mohd. Jaffar
(PW-5) was described in the MLC as linear horizontal wound on the
upper abdomen. This was also opined to be dangerous in nature by
PW-6. Noticeably, both Sheikh Pappu (PW-4) and Mohd. Jaffar
(PW-5) were found by the examining medical officers to be conscious
and oriented. Thus, the history of the injuries would have been
narrated by the said persons on their own to the medical officer.
13. The injuries of Sheikh Pappu (PW-4) were apparently quite
grave and serious. He has deposed that he had remained hospitalised
for 20-22 days. During cross-examination of Dr. S K Tiwari (PW-6),
questions were raised as to the correctness of the opinion given by
him, when he referred to the operation notes (Ex.PW-6/DA) which
prove that Sheikh Pappu (PW-4) had undergone surgical procedure,
which had brought out that the incised wound was of the length of 4.5
cm linear (horizontal) in anterior axilla above the costal margin. The
left subdiaphrag fossa and left paracardiac gutter were found full of
fresh blood to the extent of 750 ml.
14. Mohit Dhingra (PW-19) had also been taken, with the other
victims of stabbing incident, to Shanti Mukund Hospital. He was
entertained there and MLC (Ex.PW-7/A) in his regard was prepared
by Dr. Basharat Mujtaba (PW-7), the examining medical officer in
the department of surgery. The MLC indicates that Mohit Dhingra
(PW-19) had been brought by a police official named Mahavir (not
examined) at 11:25 PM on 11.10.2008 with history of assault. The
medical examination indicated a deep bleeding incised wound of the
size of 2-3 cm near left knee. PW-19 was also conscious and oriented
and apparently would have given the history to the medical officer on
his own. There is endorsement on this MLC confirming Mohit
Dhingra (PW-19) to be fit for statement at 11:45 PM on 11.10.2008.
15. The prosecution case is that the first three appellants viz.,
accused No.1 Rahul (A-1), accused No.2 Pankaj (A-2) and accused
No.3 Sandeep (A-3) were regular patrons of the restaurant. They
would come to the place quite often and, thus, were known to the
restaurant owner and staff by their names and faces. This is what was
reflected by DD No.32A (Ex.PW-1/A) based on telephonic intimation
given by the first informant (Raju) and also in his statement (Ex.PW-
12/B) leading to the registration of the FIR. The first informant
(Raju) has not been examined by the prosecution. PW-4 and PW-5
have stated in their respective depositions that though they were able
to identify the appellants as the assailants, they had not known them
by names or otherwise prior to the occurrence. PW-19, on his part,
also did identify the appellants as the persons responsible for the
stabbing incident, but referred to assistance given by the investigating
officer in such identity being established. The defence has argued
that the dock identification by PW-4, PW-5 and PW-19 should not be
believed or acted upon particularly in absence of the testimony of the
first informant Raju.
16. We have given our thoughtful consideration to the above
argument but find it unacceptable as the other evidence on record,
which we shall take note of in due course, confirms the identity of the
appellants and their presence at the scene of incident. The non-
examination of Raju, the first informant, cannot lead to any adverse
inference for the reason that, in spite of best efforts, he could not be
traced. The report of the investigating agency, taken note of in the
order dated 03.08.2011 by the trial court, shows Raju had not been
heard of even at his native place for over two years.
17. The fact that Raju was employed as a bearer in the restaurant
has not been questioned by the defence at any stage. It has to be
remembered that Raju was a menial employee for whom an incident
of such nature where his co-worker had been stabbed to death in front
of his eyes would have come as a matter of utter shock. The trial
court record shows that PW-19, the owner of the restaurant had
received threat calls asking him to desist from giving evidence at the
trial. He brought the facts relating to such intimidatory tactics, which
could not have been made but at the instance of the defence, to the
notice of the learned trial court on several occasions, seeking
measures to be taken for his security. Mohit Dhingra (PW-19)
avoided appearing as a witness on account of such threat perception
for quite a long time. In these circumstances, the evasion on the part
of Raju (the first informant) from deposing in the court cannot come
as a matter of surprise or cause for adverse inference against the
prosecution. No wonder then that Sheikh Pappu (PW-4), Mohd. Jaffar
(PW-5) and Mohit Dhingra (PW-19) also showed hesitation in
confirming that they knew A-1, A-2 and A-3 from before.
18. The presence of Rahul (A-1) at the scene of the incident is
proved beyond the pale of all doubts by the fact that he was
apprehended at the spot. The FIR (Ex.PW1/B) noted the well
documented fact that after the stabbing incident while his
accomplices had run away, Rahul (A-1) had attempted to flee away in
Maruti No.DL 3CM 7755 (hereinafter referred to as "the Maruti car")
stationed in the parking. The Maruti car, the trial court record shows,
was owned by mother of Rahul (A-1). The car was seized during the
course of investigation formally vide seizure memo (Ex.PW-8/D) by
the Investigating Officer, in the presence amongst others, Constable
L.K. Sharma (PW-8) and ASI Yashpal (PW-12), Raju (the first
informant) and Constable Dinesh Maan being other signatories. It
was later claimed and its custody obtained on superdgi by Smt.
Manju, wife of Rajender Kumar, mother of Rahul (A-1), on the basis
of her application dated 25.10.2008.
19. The FIR had mentioned that Rahul (A-1) was apprehended by
Constable Lalit Kumar (PW-8) and Constable Dinesh, who was
accompanying him, both on patrolling duty in the area, when their
attention was drawn by the commotion resulting from the stabbing
incident, they finding Rahul (A-1) trying to start the car to hurriedly
move away. The evidence of PW-8, as confirmed by PW-12 to
whom custody of Rahul (A-1) was handed over in due course, has
gone unimpeached. In his statement under Section 313 Cr.P.C. Rahul
(A-1) claimed that he was lifted from his house to be falsely
implicated in the case. Suggestions to this effect were given during
cross-examination of PW-12 and were suitably denied. Noticeably,
however, no such suggestion was given to the Investigating Officer.
Further, the evidence about the recovery of the Maruti car from the
parking outside the restaurant has gone unchallenged. In these
circumstances, the finding of the trial court that Rahul (A-1) was
arrested from outside the restaurant in the parking lot after being
apprehended by PW-10, assisted by the other Constable on beating
duty with him, must be upheld. From this, it naturally follows that
since Rahul (A-1) has not explained his presence at the place in any
other manner, the evidence of PW-4, PW-5 and PW-19 about his visit
to the restaurant and, consequently, their ability to identify him, at
least on the basis of the said visit and the incident which happened
during their stay, must be believed.
20. The evidence on record shows that the names of Pankaj (A-2)
and Sandeep (A-3) on the basis of their past acquaintances and earlier
visits in the company of Rahul (A-1) had figured in the DD No.32-A
(Ex.PW-1/A) and the statement (Ex.PW-12/B) of Raju (the first
informant) at very initial stages of the police proceedings. The FIR,
however, contained an admission on the part of the first informant
that he had not known Chet Ram (A-4) from before and that he had
picked up the said name only on the basis of the exchange between
the four said visitors to the restaurant on the date of the incident.
Thus, the full identity of Chet Ram (A-4) would have been revealed,
upon interrogation, by Rahul (A-1) around the time he was shown to
have made the disclosures (Ex.PW-12/E) to the IO in the presence,
amongst others, of ASI Yashpal (PW-12). Be that as it may, A-2, A-
3 and A-4 were not immediately traceable.
21. The evidence of the Investigating Officer (PW-20) brings out
that Pankaj Kumar (A-2) and Sandeep (A-3) came to be arrested on
the very next day i.e. 13.10.2008 in FIR No.285/2008 (Ex.DW-2/B)
of Police Station Gokulpuri involving offences under Section
307/186/353/34 IPC committed in the course of an incident that had
statedly occurred at 6.10 PM on 13.10.2008. A copy of the FIR
No.285/2008 (Ex.DW-2/B) was proved by Head Constable Dinesh
(DW-2), MHC (R) of Police Station Gokulpuri. It shows arrest of
Pankaj (A-2) and Sandeep (A-3), along with another associate, at a
time when they were also found in possession of a button actuated
knife, a country-made firearm and ammunition respectively.
Interestingly, Ved Prakash Sharma (DW-1), father of Sandeep (A-3)
also appeared as a witness in his defence to confirm his arrest by the
police officials of Police Station Gokulpuri on 13.10.2008 setting up
the theory of he having been picked up from the house rather than in
the circumstances narrated in the FIR No.285/2008 (Ex.DW-2/B). It
may be mentioned that the evidence of Head Constable Dinesh (DW-
2) has also proved on record copy of FIR No.268/2008 (Ex.DW-2/A)
regarding another case involving offence under Section 307/34 IPC
pertaining to an incident of 29.09.2008 in which role of Sandeep (A-
3) had also come up besides the names of two others. The FIR
No.268/2008 of Police Station Gokulpuri indicates that Sandeep (A-
3) was wanted by the officials of the Police Station Gokulpuri in
connection with the said earlier case registered on 30.09.2008. But,
the fact remains that Sandeep (A-3) with Pankaj (A-2) are shown by
this material to have come in the custody of the Police Station,
Gokulpuri definitely on 13.10.2008.
22. In the case at hand, we need not go into the correctness or
otherwise of allegations made against Pankaj (A-2) and Sandeep (A-
3) in the case(s) of Gokulpuri. For present purposes, it is sufficient
that the evidence proves that they were in formal custody of PS
Gokulpuri w.e.f. 13.10.2008. Information about the said arrests was
conveyed by ASI Subhash Chand (PW-17), the IO of FIR
No.285/2008 of Police Station Gokulpuri, to the Investigating Officer
(PW-20) of the present case on 14.10.2008 vide DD No.41B. The
Investigating Officer has proved that on the basis of his applications
(Ex.PW-20/J and Ex.PW-20/M), the Magistrate at Karkardooma
courts had granted him permission to interrogate and cause formal
arrests of Pankaj (A-2) and Sandeep (A-3), in the case at hand, at a
stage when both of them were being produced in the said court in
connection with the extension of remand of case of Gokulpuri. The
documents prove that both Pankaj (A-3) and Sandeep (A-3) were
produced from the judicial custody with muffled faces in the court of
Metropolitan Magistrate, when permissions as requested were granted
on 23.10.2008 and 27.10.2008. The Investigating Officer has also
proved formal arrest of Pankaj (A-2) and Sandeep (A-3) on
23.10.2008 and 27.10.2008 respectively after the said initial
interrogation, vide memos Ex.PW-11/B and PW-10/B, in the
presence of Constable Avinash (PW-11) and Constable Vinod Kumar
(PW-10) respectively.
23. The Investigating Officer (PW-20) has proved that after he had
arrested Pankaj (A-2) on 23.10.2008 with the permission of the
Metropolitan Magistrate, he had moved an application (Ex.PW-20/K)
for test identification parade (TIP) and the matter was made over by
the jurisdictional Magistrate for necessary action to Mr. Vivek Kumar
Guliya, Metropolitan Magistrate. Similarly, after Sandeep (A-3) had
been arrested on 27.10.2008, with permission of the Metropolitan
Magistrate dealing with the Gokulpuri case, the Investigating Officer
had moved an application (Ex.C1) for TIP to be conducted in this
case. This application came to be dealt with eventually by Ms.
Sunaina Sharma, Metropolitan Magistrate. Pursuant to these
requests, TIP proceedings were conducted in respect of Pankaj (A-2)
on 23.10.2008 by Mr. Vivek Kumar Guliya, Metropolitan Magistrate
and in respect of Sandeep (A-3) by Ms. Sunaina Sharma,
Metropolitan Magistrate on 03.11.2008.
24. The TIP proceedings recorded (Ex.PA-7) in respect of Pankaj
(A-2) have been admitted by him under Section 294 Cr.P.C.
Similarly, TIP proceedings recorded in respect of Sandeep (A-3)
(Ex.PA-6) have been admitted by him under Section 294 Cr.P.C..
While Sandeep (A-3) refused to join the TIP on the ground that he
had been shown to the witnesses by the Investigating Officer in
Police Station Gokulpuri, Pankaj (A-2) declined to join TIP stating
that the witnesses including Mohd. Jaffar (PW-5) knew him well
before the date of incident. Interestingly, Pankaj (A-2) also admitted
before the Metropolitan Magistrate at the time of TIP (Ex.PA-7) that
he was present at the site at the time of incident though the role
alleged against him was questionable.
25. In the face of the above material, there can be no doubt about
the fact that Pankaj (A-2) was present in the restaurant at the time of
the incident and that the witnesses, particularly Mohd. Jaffar (PW-5),
not only know him from before but also are able to correctly identify
him. The refusal of Sandeep (A-3) to join TIP, on the other hand,
must lead to adverse inference to the effect that if he had participated,
the witnesses would have positively identified him. Noticeably, he
did not adduce any material in support of the reasons for his stated
refusal to co-operate with the TIP proceedings.
26. Thus, we are satisfied that the testimony of the eye-witnesses to
the incident viz., PW-4, PW-5 and PW-19, with regard to their ability
to identify Pankaj (A-2) and Sandeep (A-3) must be accepted as
credible.
27. Chet Ram (A-4) was not known, at least to the first informant,
prior to the date of incident. This is what he had mentioned even in
the FIR. He had picked up the name from the drift of conversation of
the appellants, which he claimed to have overheard. The
investigating agency claimed that information as to the particulars of
Chet Ram (A-4) were ascertained on the basis of disclosures of the
earlier three arrestees. Chet Ram (A-4) came to be arrested in FIR
No.279/2008 under Sections 302/323/324/201/109/212/34 IPC of
Police Station Gokulpuri. Upon information in this regard coming his
way, the Investigating Officer (PW-20), moved an application
(Ex.PW-20/O) in the court of Metropolitan Magistrate at
Karkardooma courts on 13.11.2008. The proceedings recorded on the
said application by the Duty Magistrate, and the evidence of the
Investigating Officer (PW-20), show that Chet Ram, then in judicial
custody in case FIR No.279/2008 of Police Station Gokulpuri, had
not been produced for purposes of the investigation of the case in
hand in spite of production warrant having been issued on an earlier
application of the Investigating Officer on 08.11.2008. The
Investigating Officer had made a fresh request informing the
Magistrate that TIP of the accused was to be got conducted and so the
jail administration be directed to ensure that he was produced in
muffled face. The Metropolitan Magistrate, however, recorded his
displeasure over the fact that the Investigating Officer himself was
not present in the court and issued show cause notice to him for the
following day. The evidence shows that the Investigating Officer
eventually went to the Central Jail No.3, Tihar on 17.11.2008 and
interrogated Chet Ram (A-4) in prison, in presence of SI Rupesh
Khatri leading to his disclosure statement (Ex.PW-15/C) being
recorded. He (A-4) was formally arrested in the prison as per arrest
memo (Ex.PW-15/A). Since no fact is shown to have been
discovered pursuant to the statement attributed to Chet Ram (A-4),
the document described as disclosure statement (Ex.PW-5/C) cannot
be read against him.
28. In the wake of his arrest on 17.11.2008, Chet Ram (A-4) was
produced in the Court of the Metropolitan Magistrate on 18.11.2008
when the Investigating Officer moved an application for TIP to be
conducted. According to be evidence of PW-20, Chet Ram (A-4) had
been produced from jail with his face muffled. The proceedings of
TIP (Ex.PA-8) in respect of Chet Ram (A-4) were admitted by him
under Section 294 Cr.P.C. as per statement made on 14.03.2012.
These proceedings show that Chet Ram (A-4) refused to join the TIP
on the ground that his face had been shown to the witnesses. It is not
elaborated by the defence either during cross-examination of the
relevant witnesses or by way of any evidence independently led as to
how or on what stage or to which of the witnesses the face of Chet
Ram (A-4) had been shown prior to the TIP being conducted.
29. Sheikh Pappu (PW-4) and Mohd. Jaffar (PW-5) have testified
confirming the prosecution case in all material particulars and
corroborating the word of each other. Both of them were employed,
with Shahid (the deceased), as cooks in the restaurant of Mohit
Dhingra (PW-19). They would not know any of the appellants prior
to the incident by names or faces. It is quite apparent that given the
nature of duties for which their services were being availed by the
restaurant, they would generally have no occasion to come across any
of the patrons to the eatery. Their evidence, however, confirmed that
Raju (the first informant) was working as one of the waiters in the
restaurant. The evidence shows that, besides Raju, there were a
number of other waiters employed, the total number of employees
may be exceeding the figure of twenty. It is Raju (the first
informant), who is stated to be responsible for serving at the table
where the four appellants were sitting. Though PW-4 and PW-5 did
not offer this information in their examination-in-chief, at the outset
of cross-examination of PW-4 clarified, and the defence made no
effort to discredit him on this score, that it was Raju, who was
fetching preparations from the kitchen for being served to the said
customers (the appellants) and, thus, he (PW-4) had asked him (Raju)
to collect the paaparh from the kitchen and serve it as per demand.
30. PW-4 and PW-5 testified that they were working in the kitchen
with other employees (including the deceased Shahid), and that Mohit
Dhingra (PW-19) was also present at the stage when the two
customers came in and protested that paaparh had not been served in
spite of their demand. According to these witnesses, Mohit Dhingra
(PW-19) took them out requesting that they may wait at their table
and assuring that the savoury demanded would be served. Their word
in this regard is confirmed by Mohit Dhingra (PW-19). PW-4 and
PW-5 testified that after about five minutes, four persons including
the two, who had come earlier, came into the kitchen and one of them
at that stage was holding a knife. Both identified Rahul (A-1) as the
person wielding the cutting instrument. The two witnesses stated that
while each of them including Shahid (the deceased) were held by one
each of the said persons, the one wielding the knife, i.e. Rahul (A-1),
stabbed them, starting with Shahid (the deceased), one after the other.
Both have confirmed the role of A-2, A-3 and A-4 in assisting A-1 in
the stabbing incident. PW-4 specifically pointed out Sandeep (A-3)
as the person, who had caught hold of him to facilitate he to be
stabbed in the abdomen by Rahul (A-1). Similarly, PW-5 identified
Pankaj (A-2) as the person who had held on to him at the stage when
he was given the knife injury in the abdominal region by Rahul (A-1).
31. Mohit Dhingra (PW-19) confirmed the incident of stabbing
wherein three of his employees including Shahid (the deceased),
Sheikh Pappu (PW-4) and Mohd. Jaffar (PW-5) working in the
kitchen area of the restaurant had been injured with knife in their
respective abdominal regions. He has stated that the appellants were
abusive and were uttering words to the effect that they had been
insulted. He, however, would not specify as to which of the
assailants had made the said utterance. He had tried to intervene. But,
Rahul (A-1) had attacked him with knife aiming at his stomach upon
which he had tried to save himself by ducking and received a stab
injury on his left knee. He has stated that he had raised alarm and the
assailants ran away.
32. Both PW-4 and PW-5 deposed that after receiving the stab
injuries they had become unconscious. Whilst the MLCs in their
respect do not confirm the theory of they having become
unconscious, and consequently, this claim appears to be a little
exaggeration, there cannot be any doubt about the fact that they had
actually received the stab wounds as testified by each of them
inasmuch as the same were duly documented in due course upon they
being taken to Max Balaji Hospital where they were given medical
assistance after examination against MLCs.
33. In our considered opinion Sheikh Pappu (PW-4), Mohd. Jaffar
(PW-5) and Mohit Dhingra (PW-19) are witnesses whose credibility
cannot be doubted. They have given evidence restricted to the facts
which were in their personal knowledge. They have made no efforts
whatsoever to vouchsafe anything to which they could not have been
privy. There is absolutely no reason why their word should be
disbelieved.
34. The prosecution case was that while running away from the
kitchen, after stabbing four persons, the knife used in the crime had
slipped out of the hand of Rahul (A-1). It was stated that on the
asking of Rahul (A-1), the weapon was picked up by Chet Ram (A-4).
It was claimed that during investigation, pursuant to disclosure of
Sandeep (A-3), the knife used in the crime was recovered from an
open drain running from a deserted place with bushes all around
along the road known as Mangalam Road in the Institutional Area as
per seizure memo (Ex.PW-16/D), in the presence of Constable
Bijender Singh (PW-16) on 03.11.2008. The knife (Ex.PW-
16/Article 1) has been produced in evidence and it is stated that the
same was seized after its sketch (Ex.PW-16/C) had been prepared.
We may, however, note that no blood stains were found on this knife.
In fact, there is no evidence confirming the prosecution theory that it
was this knife which was used by Rahul (A-1) in the course of
stabbing the four persons. There is no clarity in the evidence as to
how the knife used by Rahul (A-1), and picked up by Chet Ram (A-4)
after it had slipped from the hands of the former, had come in the
possession or control of Sandeep (A-3) so as to be recovered at his
instance. In these circumstances, we are constrained to reject the
evidence about the recovery of the weapon of offence (the knife).
35. As mentioned earlier, two Constables of the local police
station, viz., Constable Lalit Kumar Sharma (PW-8) and Constable
Dinesh were on patrolling duty of the area of the restaurant around
the time the incident was happening. It is but natural that after the
stabbing when the assailants were fleeing away, there was
commotion. It was this which attracted the attention of the two beat
Constables in the direction of the restaurant. PW-8 has been
examined to prove as to what happened in the wake of these events.
He testified that he had noticed Rahul (A-1) sitting in the driver‟s seat
of the Maruti car in the parking lot and trying to start the vehicle.
Upon seeing the police personnel approaching, Rahul (A-1) left the
vehicle and started running. PW-8 deposed that he along with the
other Constable had chased and had caught Rahul (A-1). On
checking, he found Rahul (A-1) was having in his possession a
country-made pistol with one live round loaded in it kept concealed
beneath dub (i.e. beneath the belt) of the trousers and another live
cartridge kept in the right side pocket of his trousers. ASI Yashpal
(PW-12), who in due course had reached the place pursuant to DD
No.32A (Ex.PW-1/A), confirms the word of PW-8 to this effect and
stated that he had taken the said firearm with ammunition in his
possession vide formal seizure memo (Ex.PW-8/B), after its sketch
(Ex.PW-8/A) had been prepared.
36. The seizure of the country-made pistol (Ex.PW-12/Article 1)
and the two cartridges (collectively, Ex.PW-12/Article 2) are shown
to have been attested by Constable Lalit Kumar Sharma (PW-8), Raju
(the first informant) and the other beat officer Constable Dinesh. We
have already noted the explanation of the prosecution as to why Raju
(the first informant) could not be examined. Constable Dinesh was
not examined as the public prosecutor in-charge of the case made a
statement before the trial court on 20.07.2010 that his evidence would
be repetitive. The defence did not object at any stage to this reason.
Thus, on the seizure we have the word of ASI Yashpal (PW-12) and
Constable Lalit Kumar (PW-8) but on recovery of the said articles
from the possession of Rahul (A-1), the prosecution rests its case on
the sole word of Constable Lalit Kumar (PW-8).
37. In our opinion, the evidence of PW-8 deserves to be believed.
He was present on account of his official duties as the beat Constable
of the area. There is no case set up of any past acquaintance with
Rahul (A-1) or, for that matter, any reasons for false implication by
this witness. The country-made pistol and the ammunition found
therewith are articles which cannot be easily procured. The
possibility of the same having been planted by PW-8, in the facts and
circumstances of the case, is non-existent.
38. The ballistic report (Ex.PA-5), also admitted under Section 294
Cr.P.C. by Rahul (A-1) on 14.03.2012, confirms that the country-
made pistol and the two cartridges are firearm and ammunition
respectively. There is no evidence adduced to show that they had
been kept lawfully against a proper license.
39. In above view of the matter, the prosecution has succeeded in
proving that Rahul (A-1) was found having in his possession the
firearm and ammunition unlawfully within the mischief of Section 25
of Arms Act. Since the prosecution on the said charge was initiated
on the basis of appropriate sanction under Section 39 of the Arms Act
(Ex.PA-1), admitted under Section 294 Cr.P.C. by statement made on
14.03.2012, the judgment of the trial court convicting Rahul (A-1) on
the said charge cannot be assailed.
40. It is the common argument of the appellants that the
prosecution case of stabbing of four persons in the small kitchen area
is highly improbable, what with there being not enough space for the
victims to be cornered, lined up, or held, particularly in the presence
of a large number of other employees of the restaurant, the owner‟s
son himself also being around. The argument is that if a group of
customers had come in the kitchen area and held even one employee
working there with the intention to inflict stab injuries with a knife
openly held, the other employees would have immediately raised
alarm, converged together not only to ward off the attack but also to
apprehend the assailants, who would be out-numbered, and that it is
inconceivable that they would meekly allow four persons to be
stabbed, one after the other in the manner stated. The defence further
argued that Raju (the first informant) was the most important witness
since it is he alone who claimed to have been acquainted with the first
three appellants from before. The submission is that non-examination
of Raju should result in adverse inference against the prosecution
case. It was also submitted that PW-4 has ruled out the possibility of
Mohit Dhingra (PW-19) witnessing the occurrence since, according
to him, he had entered the kitchen after the stabbing.
41. The defence further argued that the MLC (Ex.PA-3) of Shahid
(the deceased) shows that he had been stabbed by a "colleague" rather
than by the appellants. It appears from the said document that the
Medical Officer, who prepared it had initially recorded the history of
stab injury to be one inflicted by a colleague of Shahid. The word
"colleague", however, was scored off and instead the medical officer
added the words "unknown person". The argument of the defence is
that since even the MLC (Ex.PA-4) of Mohd. Jaffar (PW-5) shows
the history narrated to the medical officer attributing a role to an
"unknown person", the involvement of the appellants is rendered
doubtful inasmuch as, per the prosecution case, they were regular
customers of the restaurant and would be "known" to the restaurant
staff rather than be described as "unknown persons". At the same
time, the appellants argued, the reference to stabbing by a "colleague"
initially recorded in the MLC of the deceased indicates the possibility
that the restaurant staff, for some reason, had gone berserk in the
kitchen area and may have stabbed or injured each other in the
process.
42. We have considered the above noted arguments of the
appellants but find no substance therein. The absence of Raju (the
first informant) from the witness box has been duly explained. The
prosecution cannot achieve the impossible. If the witness has
rendered himself unavailable, even to his family, it cannot be said that
the prosecution withheld him from the witness box. His presence
indeed would have added strength to the prosecution case but his
absence cannot mean that the evidence of the three injured witness,
particularly Sheikh Pappu (PW-4) and Mohd. Jaffar (PW-5), who
were in the kitchen area throughout, should be disbelieved.
43. It does appear that the kitchen where the stabbing incident took
place is a hall with lot of furniture and equipment placed around,
leaving small corridors of space for movement. But, it has to be
remembered that a number of workers were deployed in the facility
that covered not only the kitchen on separate floor but the dining area
at different level. The scaled site plan (Ex.PW-2/A) describes the hall
to be more than six meters in length and more than five meters in
breadth. It is, thus, not so congested a place as the defence has tried
to project. The investigation brought out tell-tale signs of blood
spilled at the place. The same was collected, inter alia, vide seizure
memo (Ex.PW-12/D). In the facts and circumstances, it was not
difficult for the four assailants to come in and round up the intended
victims holding them physically and leaving them with stab wounds.
44. The evidence clearly shows that the incident of stabbing took
place in a couple of minutes. It appears that tempers were getting
frayed over lack of service for some time. Protest had already been
lodged by two of the assailants by a visit to the kitchen. But then, no
one could have possibly anticipated that the said customers would
become so infuriated as to come collectively again to the kitchen and
injure the workers one after the other. Since the stabbing was a
matter of surprise, it would not have given time for the other workers
in the restaurant to become alive to the situation or to react by coming
to the rescue of their colleagues or making effort to stop the
assailants. The fact that one of the assailants was holding a knife,
which he had openly used to cause injuries against four persons,
including the owner‟s son who had tried to intervene, would have
added to the element of deterrence against others to come forward.
45. The word "colleague" appearing in the MLC (Ex.PA-3) of the
deceased, as originally recorded but later scored off, was apparently
an error committed by the medical officer. Definitely, such
information about a colleague could not have come from Shahid (the
deceased) himself since he had been brought in the hospital casualty
in an unconscious state. There is no possible reason as to why the
colleagues would have stabbed each other and then blamed others for
the incident. PW-4, PW-5 and PW-19 have made it clear that they
did not know the identity of the appellants prior to the incident. Thus,
while they were under medical examination, they could not have
given any description of the assailants but by using the expression
"unknown person". Detention of Rahul (A-1) was almost
simultaneous and immediately after the occurrence.
46. It has been argued on behalf of Rahul (A-1) that he was picked
up from his house and the case has been falsely planted. In this
context, reference is made to the arrest memo (Ex.PW-20/A), which
indicates the time of arrest as 5 AM of 12.10.2008. Indeed, the
incident having occurred at about 10.30 PM on the previous night,
Rahul (A-1) having been apprehended immediately thereafter in the
parking lot, the formal arrest seems to be a bit belated. But, we have
to bear in mind that the investigation was being done by ASI Yashpal
(PW-12) throughout the night and initial steps required a lot of
footwork. Upon receiving the information vide DD No.32A (Ex.PW-
1/A) at 11.12 PM, he had rushed to the restaurant where he learnt
about the event from the two beat constables, inspected the scene of
crime, met the first informant, took the necessary steps of calling the
crime team, made arrangements for guarding the place and then
rushed to Shanti Mukund Hospital followed by a visit to Max Balaji
Hospital where the injured persons had been taken and were under
treatment. After ascertaining the respective status of the four victims,
he returned to the place and then undertook the formal exercise of
recording the statement of the first complainant, completing this part
of the exercise by 2 AM on 12.10.2008 when he had dispatched the
rukka (Ex.PW-12/C) to the police station. This entire sequence is
sufficient to explain the delay in the formal arrest of Rahul (A-1). We
may add that Rahul (A-1), on his part, has not adduced any evidence
in support of the plea that he was picked from his house to be shown
arrested from the restaurant area. On the contrary, the fact that the
Maruti car of his mother was found in the parking of the restaurant
area lends assurance to the evidence as to his presence and
apprehension at the spot.
47. It is the argument of Rahul (A-1) that the incident occurred in
the heat of the moment and there was no intention to cause death. We
reject this argument as unmerited. As noted earlier, Shahid had
suffered not one, not two, but five stab injuries, four of which were in
the vital abdominal region. The nature of the injuries, the depth to
which they had gone and the damage that each had done to the
insides, is graphically noted in the post-mortem report (Ex.PW-9/A).
We accept the opinion of the autopsy doctor (PW-9) that the said four
injuries were sufficient, individually and collectively, to cause death
in ordinary course of nature. Thus, even if we were to believe that
Rahul (A-1) did not intend to cause the death of Shahid, there is no
escaping the conclusion that the injuries in question, which were
definitely intentionally caused, were sufficient in the ordinary course
of nature to cause death. This leads to the logical conclusion that the
death of Shahid was a case of murder within the meaning of the
expression defined in the third clause of Section 300 of Indian Penal
Code.
48. We do not accept the submission of the defence that the death
of Shahid was caused without pre-meditation or in a sudden fight in
the heat of passion or upon a sudden quarrel. There was no
suddenness in the entire episode. The appellants had come together
to the restaurant and had ordered drinks. They had demanded
savouries to be served along with the drinks. The order was not
complied with. The delay angered them. This led to the two of them
going into the kitchen to lodge protest. When they were sent out by
the restaurant owner‟s son, they waited for some more time. Since
the eatable ordered was not forthcoming, they converged together, all
four of them, into the kitchen, now one (A-1) holding a knife openly
in his hand. Immediately after entering the kitchen, the other three
appellants held one each of the three of the cooks, while Rahul (A-1)
holding the knife stabbed them one after the other. When the owner‟s
son (PW-19) tried to intervene Rahul (A-1) assaulted him as well
though, with the former ducking, the knife landed on his lower limb.
This sequence does not show any sudden fight or sudden quarrel. It
was rather entirely a one-sided affair with the assailants feeling
provoked over triviality. No injury was suffered by the appellants.
No one but four persons were assaulted by a sharp weapon. The case,
thus, cannot fall under any of the exceptions to Section 300 IPC. The
case of Raju V. State of Haryana 2010 (3) SCC 235 has no parity to
the factual matrix of the case at hand.
49. Given the dangerous injuries inflicted on the persons of Sheikh
Pappu (PW-4) and Mohd. Jaffar (PW-5), inasmuch as the stab
wounds in the abdominal region, inflicted with sufficient force so as
to cause deep cuts, there can be no dispute about the fact that the
injuries were inflicted intentionally and with knowledge that the same
were likely to result in death. In these circumstances, the prosecution
case about the attempted murder of Sheikh Pappu (PW-4) and Mohd.
Jaffar (PW-5) also stands established.
50. It is the common argument of Rahul (A-2), Sandeep (A-3) and
Chet Ram (A-4) that they had no way of knowing that Rahul (A-1)
was armed. It is also their submission that they can only be accused of
assisting Rahul (A-1) in belabouring the three employees in the
kitchen and that common intention to commit murder cannot be
attributed to any of them. Reliance is placed on Ramashish Yadav V.
State of Bihar 1999 (8) SCC 555. Again, the sequence of events here
is distinct. Unlike the case of Ramashish Yadav (supra), here all the
four appellants had paid the visit to the kitchen with the declared
intention that the insult (over being ignored in service) had to be
avenged. Rahul (A-1) was holding the knife in his hand and it is at
his behest that the other three caught hold of the three victims, each
presenting their respective captive to him for being stabbed. Since
the stabbing occurred in sequence, within the sight of the three
appellants assisting the one holding the knife, each continuing to aid,
it has to be inferred that the intention of inflicting the knife injuries
was shared by one and all. Their participation in the core set of acts
leading to the fatal wounds being suffered by Shahid, and near fatal
wounds suffered by Sheikh Pappu (PW-4) and Mohd. Jaffar (PW-5),
leaves us with no hesitation in accepting the prosecution charge that
pre-concert not merely to belabour but to inflict knife injuries, on the
part of appellants must be read into their conduct.
51. Thus, in our judgment, the learned trial court has correctly
appreciated the evidence, applied the proper law and has reached
appropriate conclusions. The impugned judgment cannot be faulted.
Given the nature of charge brought home, in our opinion, the
sentences awarded against the appellants cannot be said to be
disproportionate or unduly harsh. We find no reasons for
interference.
52. The appeals are found devoid of merit and are consequently
dismissed.
53. The appellants Pankaj (A-2) and Sandeep (A-3) are on bail, the
sentences awarded against each of them having been suspended,
pending consideration of their respective appeals by orders dated
21.12.2014 and 05.12.2014 respectively. They are directed to
surrender to custody within fifteen days of this judgment to undergo
the sentences awarded against each of them in the impugned
judgment and order. The learned trial judge (successor judge) and the
Station House Officer of Police Station Anand Vihar are directed to
take necessary steps to ensure due compliance.
54. The other two appellants viz., Rahul (A-1) and Chet Ram (A-4)
are in custody. They be informed by serving a copy of this judgment
on each of them through Superintendant Jail.
R. K. GAUBA
(JUDGE)
SANJIV KHANNA
(JUDGE)
OCTOBER 14, 2015
vld
