Delhi High Court
Anil vs State on 4 December, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: November 19, 2017
% Judgment Delivered on: December 04, 2017
+ CRL.A. 1253/2015
ANIL ..... Appellant
Through: Mr.Ankit Mathur, proxy
counsel for Mr.Rajesh Dua,
Advocate
versus
STATE ..... Respondent
Through: Ms.Kusum Dhalla, APP for the
State with SI Vijay Kumar PS
Vijay Vihar
AND
+ CRL.A. 1278/2015
ASHISH @ KALI @ AMAR ..... Appellant
Through: Mr.Ajay Verma, Advocate with
Mr.Upendra Yogesh, Advocate
versus
STATE ..... Respondent
Through: Ms.Kusum Dhalla, APP for the
State with SI Vijay Kumar PS
Vijay Vihar
AND
+ CRL.A. 222/2016
PARVEEN @ MONTY ..... Appellant
Through: Mr.Sumeet Verma, Advocate
with Mr.Aman Choudhry,
Advocate
versus
STATE ..... Respondent
Through: Ms.Kusum Dhalla, APP for the
State with SI Vijay Kumar PS
Vijay Vihar
AND
CRL.A. Nos.1253 & 1278 of 2015 and 222 & 542 of 2016 Page 1 of 26
+ CRL.A. 542/2016 & CRL.M.A.9188/2016
VINOD @ DADDU ..... Appellant
Through: Mr.S.K.Gandhi, Advocate with
appellant in person
versus
THE STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Through: Ms.Kusum Dhalla, APP for the
State with SI Vijay Kumar PS
Vijay Vihar
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
HON'BLE MS. JUSTICE REKHA PALLI
PRATIBHA RANI, J.
1. These four appeals arise out of the judgment dated 24 th August,
2015 and order on sentence dated 14th September, 2015 passed by the
learned Trial Court in Sessions Case No.12/2014, pertaining to FIR
No.429/2010, under Sections 302/394/34 IPC, PS Vijay Vihar,
whereby the four appellants have been convicted for committing the
offences punishable under Section 302/394/34 IPC and sentenced as
under:-
(i) U/S 302/34 IPC to undergo life imprisonment and
to pay a fine of `5,000/- each and
in default of payment of fine, to
undergo SI for 6 months.
(ii) U/S 394/34 IPC to undergo RI for 4 years and to
pay a fine of `2,500/- each and in
default of payment of fine, to
undergo SI for 3 months.
2. The facts of the case as mentioned in the charge-sheet and noted
by the learned Trial Court in the impugned judgment read as under:
(i) That on 18.12.2010 at about 9.40 pm, information
was received in PS Vijay Vihar regarding robbery
of valuable articles after giving knife injury near
Rithala Bus stand in front of Talab. Said
information was recorded vide DD no. 76B and
same was entrusted to SI Satyavir Singh (PW25),
who alongwith Ct.Kiran Pal (PW18) reached at
the place of information. In the meantime,
Inspector Sameer Kumar Jha (PW28) alongwith
HC Mahavir Singh (PW27) also reached there on
receipt of information about the incident. A lot of
blood was found lying at Chabutra as well as n
bench available in the Gumti of Talab Wala Park,
Village Rithala. On enquiry, it was revealed that
injured had been removed to BSA hospital. In the
meantime, Ct.Kuldeep (PW12) and Ct.Yashpal
(PW16) also reached there. After leaving HC
Mahavir Singh and Ct.Yashpal at the scene of
crime, Inspector Sameer Kumar Jha alongwith,
ASI Satyavir Singh and Ct.Kiran Pal rushed to
BSA hospital, where MLC of injured Ranjit was
collected. After sometime, injured Ranjit expired.
One public person namely Rajesh @ Pauda (PW-
5) met them in the hospital and claimed himself to
be an eye witness of the incident in question;
(ii) Inspector S.K. Jha recorded statement of
complainant Rajesh @ Pauda, wherein he claimed
that after attending their duties when he alongwith
deceased were returning back to their respective
houses, they purchased beer from Mall in front of
Ambedkar Hospital and reched at Talab Wala
Park, Rithala at about 9.15 pm. Both of them went
inside the said park for attending the call of
nature, when four boys in the age group of 20-25
years came there. Two of them caught hold of him
while other two caught hold of deceased and they
all started beating them with fist and kick blows.
They robbed his purse containing his driving
license, Voter I-Card, cash amount of `510/-, etc.
and his mobile phone make Nokia 2310 having
SIM no.9818342573. He further claimed that
when Ranjit (since deceased) resisted the act of
robbery of assailants, one of those boys gave knife
blow on his thigh as well as on left side of his neck
and robbed mobile phone and purse of Ranjit.
Thereafter, all four of them fled away from there.
Injured Ranjit became unconscious and fell down
on Chabutra in the Gumti of said park. He
informed his brother Main Pal Singh (PW1) by
calling him from the nearby shop of Rahul.
Accordingly, Main pal Singh also reached there
and both of the with the help of some passerby
shifted injured Ranjit to BSA hospital. He could
identity all said four boys/offenders on being
shown to him;
(iii) On the basis of said statement, Inspector S.K.Jha
got registered FIR in question for offences
punishable U/s 302/394/34 IPC through
Ct.Kuldeep and investigation was entrusted to
him;
(iv) During investigation, IO Inspector S.K.Jha seized
relevant exhibits of deceased from the hospital and
got postmortem of dead body conducted in SGM
hospital. He also lifted relevant exhibits from
scene of crime and also prepared site plan of the
place of occurrence;
(v) During investigation, IO Inspector S.K.Jha
recorded statements U/s 161 Cr.P.C. got collected
call details record of mobile phone no.
9818342573. On analysis of said call details
record, it was revealed that SIM no.8802720390 of
Aircel had been used on 20.12.2010 in the mobile
handset of complainant. Accordingly, call details
record of SIM no.8802720390 were also collected.
It was revealed that said SIM was being used by
one Vijay @ Sonu @ Cheel (PW-29) who, on
enquiry, disclosed that accused Ashish @ Kali had
visited his factory on 20.12.2010 for disposing off
one mobile handset and he had used aforesaid SIM
by inserting the same inside said mobile handset;
(vi) As per the case of prosecution, FIR no.432/10 U/s
363 IPC regarding kidnapping of son of
complainant in that case, had been registered at
PS Vijay Vihar. On 25.12.2010, JCL Nitin had
been apprehended in said case. During his
interrogation, he confessed t have committed the
incident in question alongwith present four
accused persons facing trial in this case before this
Court. It is alleged that in pursuance of his
version, JCL Nitin led to the arrest of accused
Anil. Accused Anil in pursuance of his disclosure
statement, got recovered purse containing
photocopy of driving license of complainant
Rajesh @ Pauda from inside the room situated on
first floor of his house;
(vii) It is further case of prosecution that accused Anil
led to the arrest of JCL Rahul who was found in
possession of one Aircel SIM no.8802720390
which used in the mobile handset of complainant
Rajesh @ Pauda on 20.12.2010;
(viii) That on 30.12.2010, accused Asish @ kali was
arrested on the basis of secret information. In
pursuance of his disclosure statement, said
accused got recovered half burnt driving license
and other documents from his rented house. Nto
only this, he also allegedly got recovered weapon
of offence i.e. knife from near round around (gole
chakkar) of Rani Jhansi Road;
(ix) That on 15.01.2011, accused Vinod @ Daddu was
arrested. In pursuance of his disclosure statement,
said accused got recovered robbed purse of
deceased Ranjit from below the mattress of bed of
his residential house. On 17.07.2011, accused
Pravin @ Monty was also arrested from his house
and said accused got recovered his blood stained
pant, which he was wearing at the time of incident
in question;
(x) During the course of investigation, accused Anil
was correctly identified in his judicial TIP, while
remaining accused persons refused to participate
in their judicial TIP. Robbed recovered purse was
also identified by complainant in judicial TIP of
case property. Subsequent opinion with regard to
weapon of offence was also collected, relevant
exhibits were got deposited in FSL Rohini and
scaled site plan was got prepared from draftsman
and PCR Form was also collected from Control
Room. After completion of investigation,
chargesheet had been filed before the Court.
3. After the case was committed to the Court of Sessions, all the
four convicts were charged for committing the offences punishable
under Section 120-B IPC, under Section 302 r/w 396 r/w 120-B IPC,
under Section 397 IPC and under Section 412 IPC.
4. In order to substantiate its case, the prosecution examined 29
witnesses in all. All the four convicts were afforded an opportunity to
explain the incriminating evidence during their examination under
Section 313 Cr.P.C. They simply denied the case of prosecution and
claimed their false implication on the basis of false and fabricated
documents by the Investigating Officer. They preferred not to lead
any evidence in their defence.
5. After considering the testimony of PW-5 Rajesh - the eye
witness, PW-29 Vijay whose SIM was used in the mobile phone
robbed from PW-5 Rajesh which was put on surveillance and which
led to ascertaining the identity of the offenders involved in the
occurrence, recovery of the weapon of offence i.e. the knife at the
instance of convict Ashish and partial recovery of the robbed articles,
the learned Trial Court held that all the accused persons had
participated during commission of the offences and they were sharing
the common intention to commit the offences within the meaning of
Section 34 IPC. Learned Trial Court held that all the accused persons
in furtherance of their common intention committed robbery of the
purses and mobiles belonging to PW-5 Rajesh and the deceased Ranjit
and the multiple knife injuries caused by Ashish on the vital part of
the deceased, were in furtherance of their common intention. All the
four appellants were convicted for committing the offence punishable
under Section 302/394/34 IPC and sentenced in the manner stated
above. However, all the appellants were acquitted of the remaining
charges.
6. Mr.Ankit Mathur, learned counsel for convict Anil, Mr.Sumeet
Verma, learned counsel for convict Parveen @ Monty and
Mr.S.K.Gandhi, learned counsel for convict Vinod @ Daddu have
challenged the conviction of convicts Anil, Parveen and Vinod under
Section 302/34 IPC by submitting that even if it is assumed for the
sake of arguments that these three convicts were with the convict
Ashish @ Kali at the time of commission of robbery, they did not
share any common intention with Ashish @ Kali to commit the
murder of Ranjit (deceased). It has further been submitted that the star
witness i.e. PW-5 Rajesh @ Pauda who was with the deceased Ranjit
at the time of occurrence, did not attribute any role to these three
convicts which could even remotely suggest that they shared the
common intention even at the spur of the moment. It has been
contended that while committing robbery or taking away their purse
and mobile etc., convicts Anil, Parveen and Vinod admittedly neither
inflicted any injury nor they had shown any weapon either to PW-5
Rajesh - the eye witness or to the deceased Ranjit. Learned counsel
for the convicts Anil, Parveen and Vinod have relied on the statement
of PW-5 Rajesh - the complainant/eye witness to the effect that when
Ranjit resisted the attempt by the two persons to rob him, convict
Ashish @ Kali took out a knife and stabbed Ranjit twice. Thus, in the
absence of even any exhortation by the three convicts to Ashish @
Kali to attack Ranjit with a knife or to kill him, with the aid of Section
34 IPC they could not have been convicted for committing the murder
of Ranjit. While referring to the statement of PW-5 Rajesh that he
initially did not even identify all the convicts and was declared hostile,
it has been contended that on the testimony of a hostile eye witness,
the prosecution cannot be said to have discharged the onus to prove
the charges beyond reasonable doubt.
7. Attention of this Court has also been drawn to the testimony of
PW-29 Vijay who deposed before the Court that he was also illegally
detained by the police and tortured. But later he was cited and
examined as a prosecution witness. It has been contended that no
reliance could have been placed by learned Trial Court on the
testimony of PW-29 Vijay who himself was a suspect in the eyes of
police and was interrogated in depth. The whole case of the
prosecution is based on the testimony of public witnesses who have
either turned hostile or suspects and could not have been made the
basis to hold the convicts guilty.
8. Mr.Ankit Mathur, learned counsel for convict Anil, Mr.Sumeet
Verma, learned counsel for convict Parveen @ Monty and
Mr.S.K.Gandhi, learned counsel for convict Vinod @ Daddu have
further submitted that not only the prosecution has failed to prove that
the four convicts shared the common intention to commit the murder
of Ranjit, but even the number of persons involved in the commission
of crime though stated to be four by the complainant PW-5 Rajesh in
FIR Ex.21/A, was subsequently shown to be six including two JCL.
While justifying their refusal to take part in the TIP by convicts
Parveen, Ashish and Vinod, it has been submitted that they were
earlier shown to the witness, hence their refusal to take part in TIP was
justified. It has also been contended that since the occurrence had
taken place during night in an isolated dark spot in the park, it was not
possible for the eye witness i.e. PW-5 Rajesh to see all the offenders
in the park so as to be able to identify them during TIP. Recovery of
pair of blood stained pant after seven months of the incident, at the
behest of convict Parveen from his house, was also contended to be
improbable as any person involved in a crime would not keep blood
stained clothes hidden under the mattress for almost a month. It has
been contended that the beer bottles allegedly consumed by the
deceased and PW-5 Rajesh were not seized from the spot and the
empty wallet of the deceased claimed to have been recovered from
convict Anil is also doubtful as nobody would retain the empty wallet
robbed in a robbery and murder case for such a long time. Attempt
has also been made to assail the testimony of PW-5 Rajesh on the
ground that after the occurrence instead of calling the family of the
deceased, he preferred to call his brother PW-1 Sh.Main Pal Singh
and this also casts a serious doubt on the truthfulness of his version. It
has also been contended that the call was made by PW-5 Rajesh from
the shop of one Rahul but even he has not been examined which also
casts serious doubt on the case of prosecution. Even the car in which
the deceased was shifted to the hospital was not seized and this also
creates a serious doubt in the prosecution version. Refusal on the part
of PW-5 Rajesh - the complainant to get himself medically examined
despite stating that he was also given beatings, was also taken as a
ground to discard his version. Learned counsel for the convicts Anil,
Parveen and Vinod have contended that even if testimony of PW-5
Rajesh - the complainant is considered reliable by the Court, the only
offence proved against them could be under Section 394/34 IPC and
not under Section 302/34 IPC as they did not share the common
intention to commit the murder of Ranjit.
9. Mr.Ajay Verma, learned counsel for convict Ashish @ Kali,
while seeking his acquittal, in addition, has submitted that the
testimony of PW-5 Rajesh who was claimed to be an eye witness by
the prosecution, needs to be discarded for the reasons that he did not
fully support the prosecution case. It was during his cross
examination by learned APP for the State that certain suggestions
given to him in leading form have been admitted to be correct by him.
PW-5 Rajesh has identified three convicts only during his cross
examination by learned APP for the State. Mr.Ajay Verma, learned
counsel for convict Ashish @ Kali has contended that it was not
possible for the Investigating Officer to lift the samples from the scene
of crime during that foggy winter night. While referring to the
testimony of PW-29 Vijay, Mr.Ajay Verma, Advocate has contended
that he was coerced to become a prosecution witness by the police
which fact has been duly admitted by him, hence no conviction could
have been placed by learned Trial Court on the basis of testimony of
wholly unreliable public witnesses i.e. PW-5 and PW-29.
10. While disputing the recovery of knife Ex.P1 at the behest of
convict Ashish @ Kali, it has been contended that the knife was
planted to solve the case. The recovery has been shown to be from the
Chambery of Rani Jhasi Road which is a place accessible to the public
at large. The date of occurrence is 18th December, 2010 whereas knife
has been recovered after sixteen days and it is highly improbable that
in respect of an occurrence that was committed in Rithala, knife would
be brought upto Rani Jhansi Road and hidden there. Non-joining of
public witness at the time of recovery of knife was also claimed to be
one of the reasons for discarding the testimony of police officials who
were witnesses to the recovery of knife Ex.P1.
11. Refuting the arguments on behalf of the convicts, Ms.Kusum
Dhalla, learned APP for the State has submitted that the learned Trial
Court has passed a well reasoned judgment dealing with all the
contentions which have also been raised before this Court. The
recovery of knife from Rani Jhansi Road Chambery has been dealt
with by observing that convict Ashish @ Kali is a resident of Sadar
Bazar. Therefore, Rani Jhasi Road Chambery being on the way to his
residence from place of occurrence in Rithala, he might have found it
convenient to hide it there. Learned Trial Court has dealt with the
issue of non-joining of public witness at the time of recovery of knife
observing that public witness are often reluctant for various reasons
hence that itself could not be a ground to discard the testimony of the
police officials on the issue of recoveries made from the convicts
which includes half burnt driving licence and three visiting cards of
the deceased and weapon of offence i.e. knife Ex.P1 at the instances of
convict Ashish @ Kali, blood stained jeans at the instance of convict
Parveen which was worn by him at the time of incident, purse of the
deceased at the instance of convict Vinod and purse and driving
licence (photocopy) of PW-5 Rajesh at the instance of convict Anil.
Learned APP for the State has submitted that merely because a
witness has been cross examined by learned APP for the State in itself
is not sufficient to discard his testimony in toto. While emphasizing
that all the convicts shared common intention to commit the murder of
Ranjit who offered resistance, learned APP for the State highlighted
that the convicts are involved in various cases and they had the
knowledge as to who is in possession of the knife and when it was to
be used, so the judgment of the learned Trial Court whereby the
convicts have been convicted for committing the offence punishable
under Section 302/394/34 IPC as well the order on sentence may be
upheld.
12. We have considered the rival contentions and also carefully
gone through the Trial Court Record.
13. The evidence adduced by the prosecution and the submissions
made on behalf of the appellants need to the examined on the
following aspects:
(i) The involvement of the appellants in the occurrence dated 18th
December, 2010.
(ii) Recovery of exhibits from each of the convicts on the basis of
their disclosure statement to connect them with the crime.
(iii) Whether the convicts shared common intention to commit the
robbery or to commit the robbery and murder both.
14. PW-5 Rajesh when examined before the learned Trial Court
deposed as under:-
(i) He alongwith Ranjit (decased) was working in Sector-9, Rohini
and on 18th December, 2010 after the duty hours, he alongwith his
friend Ranjit (deceased) was returning home.
(ii) On the way back home, they purchased two beer bottles from a
shop situated in front of Ambedkar Hospital and consumed the same
and threw the bottles on road side.
(iii) While passing through Rithala Park, they entered the park for
urinating and while they were urinating, four boys came there.
(iv) Out of those four boys, two boys caught hold of him and two
boys caught hold of Ranjit and started giving beatings to them and
took them to a 'Gumti' inside the park.
(v) The boys who had caught hold of him (PW-5) snatched his
mobile and purse containing ₹500/-, driving licence and those two
boys ran towards school.
(vi) The boys who had caught hold of Ranjit, took his mobile and
purse and also ran towards school.
15. PW-5 Rajesh identified convict Anil to be one of the boys who
had caught hold of him but initially he was unable to identify the two
boys who had caught hold of Ranjit. During cross examination by
learned APP for the State, he stated that Ranjit was stabbed on his
thigh and left side of his back by one boy identified by him as Ashish
@ Kali. He also identified during trial the three convicts (who refused
to take part in TIP) as Ashish, Parveen and Vinod who were also
identified by PW-5 in Rohini Court where he had gone for some
personal work. He identified convict Parveen, to be the person who
caught hold of Ranjit and convict Ashish, who stabbed Ranjit.
16. As per the prosecution, the occurrence has taken place on 18th
December, 2010 at about 9.40 pm in Talab Wala Park, Rithala. The
first version in respect of the occurrence given by PW-5 Rajesh - the
eye witness, who was also robbed, in the complaint Ex.PW5/A reveals
the sequence of events as under:-
(i) The eye witness Rajesh (PW-5) as well deceased Ranjit were
working as drivers in a society in Sector-9, Rohini.
(ii) On 18th December, 2010 at about 8.00 pm after finishing their
duty, both of them were returning home on foot and when they
reached Ambedkar hospital, they purchased two beer bottles from the
nearby Mall and consumed the same while walking and threw the
bottles on the road.
(iii) At about 9.15 pm when they reached Talab Wala Park, Rithala
and were urinating in the park, four boys in the age group of 20-25
years, came there.
(iv) Two boys caught hold of him (PW-5) and other two boys
caught hold of Ranjit and took them to a 'Gumti' in the park.
(v) The two boys who caught hold of him, took out his purse
containing his driving licence, water bill, identity card etc. and ₹510/-
as well his mobile phone (make Nokia having SIM No.9818342573).
(vi) The other two boys who had caught hold of Ranjit (deceased)
tried to take out his belongings from his pocket. When he resisted,
one of those two boys took out a knife and stabbed on his thigh and
waist and after taking his purse and mobile, they ran away.
(vii) Ranjit fell unconscious on the 'Chabootra'.
(viii) He went to the nearby tempo stand and from the shop of Rahul,
called Main pal Singh (PW-1) and apprised him about the incident.
(ix) When Mainpal Singh (PW-1) reached the park, they with the
help of some other persons removed Ranjit (deceased) to Baba Saheb
Ambedkar Hospital in a car but he could not note down the
registration number of the car.
17. The information given by PW-1 Sh. Mainpal Singh to PCR
about the incident of stabbing and articles being snatched near Rithala
Bus Stand in front of talab was recorded vide DD No.76-B
(Ex.PW2/A).
18. The case of prosecution is based on the eye witness account
given by PW-5 Rajesh who himself was beaten and robbed but
escaped unhurt as he did not put any resistance. No doubt PW-5
Rajesh has been subjected to cross examination by the State but that
itself is not sufficient to discard his testimony in toto.
19. Legal position is well settled that evidence of a declared hostile
witness is not wholly effaced from the record and that part of evidence
which is otherwise acceptable can be acted upon to the extent the
version is found to be dependable on a careful scrutiny thereof.
20. PW-5 Rajesh himself was victim of robbery. He made a call
from a nearby shop of Rahul to PW-1 Sh.Mainpal Singh who reached
the spot within a short time and both of them with the help of some
passersby removed deceased Ranjit to Baba Saheb Ambedkar Hospital
in a car. To that extent the statement of PW-5 Rajesh has been fully
corroborated by PW-1 Sh.Mainpal Singh. While appreciating the
testimony of an eye witness, undue importance cannot be attached to
minor discrepancies if the witness is not able to fully recollect the
incident or is over-awed by the Court atmosphere.
21. In the case Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat
(1983) 3 SCC 217, the Apex Court has held that discrepancies which
do not go to the root of the matter and shake the basic version of the
prosecution should not be attached undue importance for the following
reasons:
'(1) By and large a witness cannot be expected to possess
a photographic memory and to recall the details of an
incident. It is not as if a video tape is replayed on the
mental screen.
(2) Ordinarily it so happens that a witness is overtaken
by events. The witness could not have anticipated the
occurrence which so often has an element of surprise.
The mental faculties therefore cannot be expected to be
attuned to absorb the details.
(3) The powers of observation differ from person to
person. What one may notice, another may not. An object
or movement might emboss its image on one person's
mind, whereas it might go unnoticed on the part of
another.
(4) By and large people cannot accurately recall a
conversation and reproduce the very words used by them
or heard by them. They can only recall the main purport
of the conversation. It is unrealistic to expect a witness to
be a human tape-recorder.
(5) In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make their
estimates by guess-work on the spur of the moment at the
time of interrogation. And one cannot expect people to
make very precise or reliable estimates in such matters.
Again, it depends on the time-sense of individuals which
varies from person to person.
(6) Ordinarily a witness cannot be expected to recall
accurately the sequence of events which takes place in
rapid succession or in a short time span. A witness is
liable to get confused, or mixed up when interrogated
later on.
(7) A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing
cross-examination made by counsel and out of
nervousness mix up facts, get confused regarding
sequence of events, or fill up details from imagination on
the spur of the moment. The sub-conscious mind of the
witness sometimes so operates on account of the fear of
looking foolish or being disbelieved though the witness is
giving a truthful and honest account of the occurrence
witnessed by him Perhaps it is a sort of a psychological
defence mechanism activated on the spur of the moment'
22. The postmortem report Ex.PW15/A records the injuries suffered
by the deceased Ranjit and cause of death as under:-
' External Examination:
1. Stab wound 1.5 cm x 0.3 cm obliquely placed
single edge with sharp edge upwards present over left
posterior axillary region over 10 intercostal space,
placed 18 cm below left posterior axillary fold. On fine
dissection of wound it is 2.6 cm deep cutting into
intercostals muscles going downwards medial and
anterior in direction.
2. Stab wound 4 cm x 1.5 cm obliquely placed single
edge with sharp edge upwards present over lateral side
of left thigh is placed 26 cm below iliac fossa and 25 cm
above left knee joint. On fine dissection wound is 9.5 cm
deep cutting into underlying soft tissues, blood vessels
and muscles of lateral side of thigh going anterior medial
and upwards.
Opinion:
Cause of death is shock and hemorrhage consequent
upon stab injuries one and two. Injuries one and two are
caused by a sharp object and sufficient to cause death in
ordinary course of nature.'
23. PW-5 Rajesh has deposed about Ranjit being stabbed twice
which fact is corroborated by the postmortem report Ex.PW15/A. The
purse robbed from PW-5 Rajesh has been identified by him during
judicial identification proceedings of the case property Ex.PW13/A.
The purse of the deceased though recovered from convict Vinod could
not be subjected to test identification as father of the deceased was
residing in the village, hence was not in a position to identify the purse
of his son. This shows the fairness with which the investigation has
been carried out.
24. Out of the four convicts, only one i.e. convict Anil opted to take
part in TIP proceedings and he has been duly identified by PW-5
Rajesh to be one of the offenders. The other three convicts namely
Ashish, Parveen and Vinod have been identified by him at the stage of
investigation in Rohini Court when the witness happened to be present
in Rohini Court premises and thereafter at the stage of prosecution
evidence. Thus, not only the case property but also all the persons
involved in the occurrence were identified by PW-5 Rajesh - the
complainant. Mere non-joining of public witnesses at the time of
apprehension of the convicts and the recoveries effected at their behest
cannot be a ground to discard the testimony of the prosecution
witnesses, as has been held by the Apex Court in State of U.P. vs. Anil
Singh ASI 1988 SC 1998 as under:-
... in the great majority of cases, the prosecution version
is rejected either for want of corroboration by
independent witnesses, or for some falsehood stated or
embroidery added by witnesses. In some cases, the entire
prosecution case is doubted for not examining all the
witnesses to the occurrence. The indifferent attitude of
the public in the investigation of crimes could also be
pointed. The public is generally reluctant to come
forward to depose before the court. It is, therefore, not
correct to reject the prosecution version only on ground
that all witnesses to occurrence have not been examined.
It is also not proper to reject the case for want of
corroboration by independent witnesses if the case made
out is otherwise true and acceptable. With regard to
falsehood stated or embellishments added by the
prosecution witnesses, it is well to remember that there is
a tendency amongst witnesses in our country to back up a
good case by false or exaggerated version. It is also
experienced that invariably the witnesses add embroidery
to prosecution story, perhaps for the fear of being
disbelieved. But that is no ground to throw the case
overboard, if true, in the main. If there is a ring of truth
in the main, the case should not be rejected. It is the duty
of the court to cull out the nuggets of truth from the
evidence unless there is reason to believe that the
inconsistencies or falsehood are so glaring as utterly to
destroy confidence in the witnesses. It is necessary to
remember that a Judge does not preside over a criminal
trial merely to see that no innocent man is punished. A
Judge also presides to see that a guilty man does not
escape. One is as important as the other. Both are public
duties which the Judge has to perform.'
25. It is settled legal position that corroborative evidence of an eye
witness cannot be rejected merely because of some contradictions in
the deposition. Mobile No.9818342573 was robbed from the eye
witness PW-5 Rajesh, which was put on surveillance. Just after two
days of the incident, SIM No.8802720390 was used in the mobile
handset of the complainant Rajesh which led the Investigating Officer
to PW-29 Vijay. His interrogation revealed the identity of convict
Ashish @ Kali and his co-convicts. All of them were made to take
part in TIP and while three convicts namely Ashish, Parveen and
Vinod refused to join the TIP proceedings, one convict namely Anil
who opted to take part in TIP proceedings was duly identified by
PW-5 Rajesh. Merely because PW-29 Vijay was subjected to
extensive interrogation, is no ground to disbelieve his testimony.
Rather he appears to be a truthful witness who deposed not only about
the treatment meted out to him during interrogation but also the
circumstances under which his SIM No.8802720390 was used in the
mobile handset robbed from the complainant. He revealed that
convict Ashish @ Kali and his associates were routine visitors to that
place for offering mobiles for sale and that mobile handset make
Nokia (i.e. of PW-5 Rajesh) was brought to him by the convicts.
PW-29 Vijay inserted his SIM in that mobile handset which was on
surveillance. He was interrogated by the IO. Statement of PW-5
Rajesh - the complainant regarding the incident of robbery of his
purse and mobile finds corroboration from the statement of PW-29
Vijay as the mobile of PW-5 Rajesh was brought to PW-29 Vijay by
none else but Ashish and other convicts. The convicts failed to
explain their possession in respect of the mobile and purses of PW-5
Rajesh and deceased Ranjit.
26. Taking into consideration the un-rebutted, reliable and
trustworthy deposition of the victim of robbery i.e. PW-5 Rajesh who
also witnessed his companion Ranjit being stabbed twice on offering
resistance and also robbed, which has been duly corroborated by the
medical and scientific evidence, we are of the considered view that the
learned Trial Court has rightly come to the conclusion that all the
convicts are guilty of committing the offence punishable under
Section 394/34 IPC.
27. We also find ourselves in complete agreement with the
reasoning given by the learned Trial Court to hold appellant Ashish @
Kali guilty of the offence punishable under Section 302 IPC.
However, it needs to be examined whether the other three convicts
namely Parveen, Anil and Vinod could have been convicted by the
learned Trial Court for the offence punishable under Section 302/34
IPC as they were present at the spot when convict Ashish stabbed
Ranjit who was resisting his attempt to commit the robbery.
28. Section 34 IPC incorporates the principle of vicarious liability
when an accused shares a common intention with the actual principal
perpetrator of the crime. Two essential requirements of the Section are
(i) common intention and (ii) participation of the accused in the
commission of the offence.
29. In the decision reported as Rajesh Kumar v. State of H.P.,
(2008)15 SCC 705, the Supreme Court elucidated and laid down the
following principles as applicable to Section 34 IPC:
"13. Section 34 has been enacted on the principle of
joint liability in the doing of a criminal act. The Section
is only a rule of evidence and does not create a
substantive offence. The distinctive feature of the Section
is the element of participation in action. The liability of
one person for an offence committed by another in the
course of criminal act perpetrated by several persons
arises under Section 34 if such criminal act is done in
furtherance of a common intention of the persons who
join in committing the crime. Direct proof of common
intention is seldom available and, therefore, such
intention can only be inferred from the circumstances
appearing from the proved facts of the case and the
proved circumstances. In order to bring home the charge
of common intention, the prosecution has to establish by
evidence, whether direct or circumstantial, that there was
plan or meeting of mind of all the accused persons to
commit the offence for which they are charged with the
aid of Section 34, be it pre-arranged or on the spur of
moment; but it must necessarily be before the
commission of the crime. The true contents of the Section
are that if two or more persons intentionally do an act
jointly, the position in law is just the same as if each of
them has done it individually by himself. As observed in
Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the
existence of a common intention amongst the participants
in a crime is the essential element for application of this
Section. It is not necessary that the acts of the several
persons charged with commission of an offence jointly
must be the same or identically similar. The acts may be
different in character, but must have been actuated by
one and the same common intention in order to attract
the provision."
30. In the decision reported as Arun v. State by Inspector of Police,
Tamil Nadu, 2008(16) SCALE, 335, reference was made to the
decision of the Privy Council in Hardev Singh & Anr. v. State of
Punjab, (1975) 3 SCC 731 and benefit was given to one of the
accused as he did not act conjointly with others in committing the
murder. The Supreme Court followed the decision in Dharam Pal &
Ors. v. State of Haryana, (1978)4 SCC 440 after referring to the test
which should be applied before Section 34 IPC can be invoked, which
is extracted hereunder:
"14. It may be that when some persons start with a
prearranged plan to commit a minor offence, they may in
the course of their committing the minor offence come to
an understanding to commit the major offence as well.
Such an understanding may appear from the conduct of
the persons sought to be made vicariously liable for the
act of the principal culprit or from some other
incriminatory evidence but the conduct or other evidence
must be such as not to leave any room for doubt in that
behalf. A criminal court fastening vicarious liability must
satisfy itself as to the prior meeting of the minds of the
principal culprit and his companions who are sought to
be constructively made liable in respect of every act
committed by the former. There is no law to our
knowledge which lays down that a person accompanying
the principal culprit shares his intention in respect of
every act which the latter might eventually commit. The
existence or otherwise of the common intention depends
upon the facts and circumstances of each case. The
intention of the principal offender and his companions to
deal with any person who might intervene to stop the
quarrel must be apparent from the conduct of the persons
accompanying the principal culprit or some other clear
and cogent incriminating piece of evidence. In the
absence of such material, the companion or companions
cannot justifiably be held guilty for every offence
committed by the principal offender."
31. Examining the facts of the present case in the light of legal
principles discussed above, we are of the considered opinion that all
the four convicts had the common intention to commit the robbery.
However, as is proved from the statement of PW-5 Rajesh, the
purpose of giving physical beating while taking them to 'Gumti' was
only to create a fear in their mind so as to make them handover their
belongings without offering any resistance. The versions of PW-5 that
after taking away his valuables, the two persons who had caught him,
ran away towards the school, confirms this fact. The other two
persons namely Ashish and Parveen who were holding Ranjit also
wanted to take away the valuables only. At that time Parveen who was
holding Ranjit to take away from him his mobile and purse etc., could
not have comprehended that Ashish @ Kali was going to stab him for
resisting his attempt to rob him. In that circumstance, the three
convicts namely Anil, Vinod and Parveen could not have been
enjoined with the constructive liability for the criminal act of
committing murder of Ranjit by convict Ashish @ Kali with the aid of
Section 34 IPC.
32. In view of above discussion, we do not find any illegality or
perversity in the finding of learned Trial Court for convicting
appellant Ashish @ Kali for committing the offence punishable under
Section 302 IPC as well for committing the offence punishable under
Section 394/34 IPC and the sentence awarded to him thereunder. To
that extent the finding of learned Trial Court calls for no interference.
Resultantly, Crl.A. No.1278/2015 filed by convict Ashish @ Kali is
dismissed.
33. So far as the other three convicts namely Parveen, Vinod and
Anil (appellants in Crl.A. Nos.222/2016, 542/2016 and 1253/2015)
are concerned, Crl.A. Nos.222/2016, 542/2016 and 1253/2015 are
allowed to the extent that convicts Parveen, Vinod and Anil are
acquitted of the charges under Section 302/34 IPC. However,
their conviction and sentence awarded to them for committing the
offence punishable under Section 394/34 IPC is maintained.
34. Convicts Anil and Vinod are on bail whereas convict Parveen is
in custody. The period undergone by convicts Anil, Vinod and
Parveen in custody in this case as per their nominal rolls is as under:-
Name of convict As on date Sentence undergone
Parveen @ Monty 27.10.2017 Six years, nine months and
ten days.
Anil (on regular bail 27.10.2017 Six years, five months and
w.e.f. 03.06.2017) seven days.
Vinod @ Daddu 02.12.2016 Five years ten months and
(on regular bail six days.
w.e.f. 02.12.2016)
35. As per the nominal rolls, the convicts Parveen, Anil and Vinod
have already undergone the sentence of four years awarded to them
for committing the offence punishable under Section 394/34 IPC.
36. Convict Parveen be set at liberty forthwith if not wanted in any
other case.
37. Since Crl.A. No.1278/2015 filed by convict Ashish @ Kali is
dismissed, he shall undergo the sentence as awarded by the learned
Trial Court and affirmed by this Court.
38. TCR be sent back alongwith copy of this order.
39. A copy of this order be sent to the concerned Jail
Superintendent for information and compliance.
PRATIHBA RANI
(JUDGE)
REKHA PALLI
(JUDGE)
December 04 2017
'st'
