Delhi High Court
Naresh Kumar vs State Of Delhi on 20 December, 2017
$~
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 6th September, 2016
Date of decision : 20th December, 2016
+ CRL.A. No.540/2000
NARESH KUMAR ..... Appellant
Through: Mr. S.D. Singh and
Mr. Rahul Kumar Singh,
Advs.
versus
STATE OF DELHI ..... Respondent
Through: Mr. Varun Goswami, APP
for the State
CRL.A. No.764/2000
MAHENDER KUMAR ..... Appellant
Through: Mr. Krishan Kumar,
Ms. Vidushi Sharma and
Ms. Sunita Arora , Advs.
versus
STATE OF DELHI ..... Respondent
Through: Mr. Varun Goswami, APP
for the State
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE R.K. GAUBA
JUDGMENT
GITA MITTAL, J.
1. A trivial incident, one summer evening involving a few
drops of water spilling over on to the chhajja (parapet) of a
neighbour's house has resulted in fatal injuries to one person;
injuries to several other persons of that family and these protracted
proceedings which commenced on 14th of June, 1995 with the
registration of FIR No.466/95 registered by the police under
Section 302/307/308/324/147/148/149/34 of the IPC and Sections
25/54/59 of the Arms Act by the Police Station Patel Nagar. It has
also led to implication of four sons (Mahender, Naresh, Kundan
and Jagdish) of Ramji; one grandson Sanjay Son of Mahinder and
one outsider Ajay; resulting in conviction for commission of the
offence of murder and life imprisonment to two brothers Mahender
and Naresh as well as conviction of Sanjay for commission of
offence under Section 324 IPC. While on the other side, fatal
injuries resulted to Arun, son of Mehar Chand as well as injuries to
his wife Prem Devi (PW8) (a government servant); his son Anand
Kumar (PW22); grandson Sanjay son of Virender(PW20) and a
nephew Anil Kumar (PW7).
2. Mahender Kumar and Naresh Kumar stand convicted for
commission of offences under Section 302 read with Section 34 of
the Indian Penal Code by the judgment dated 31 st August, 2000
passed by the learned Additional Sessions Judge in Sessions Case
No. 3/97 arising out of the FIR. Pursuant to the conviction by the
order dated 31st August, 2000, the trial court has sentenced the
appellants to undergo rigorous life imprisonment for commission
of the offence under Section 302/34 of the IPC with a fine of
`2,000/- each and in default of payment of fine, it is directed that
they would undergo simple imprisonment for one year each.
Additionally, the appellant Mahender stands sentenced for
conviction under Section 27 of the Arms Act to undergo rigorous
imprisonment of three years with a fine of `1,000/-. In default of
payment of fine, it has been directed that he shall undergo simple
imprisonment for three months. The sentences imposed on the
appellant Mahender Kumar have been directed to run concurrently.
The two brothers have challenged their convictions and sentences
by way of the present appeals. In as much as the impugned
judgment arises out of a common trial, we have taken up these
appeals together and are deciding them by one judgment.
3. The genesis of the matter relates to an incident which had
occurred on 14th June, 1995 at 8.45 p.m. in front of the premises
no. A-195, DDA Flats, New Ranjit Nagar, New Delhi between
members of two families, who were neighbours. The details of the
incident are found recorded in the statement (Exh.PW7/A) of Anil
Kumar son of Jai Prakash (who appeared as PW 7) given by him
to the police based whereon the case was registered by police
station Patel Nagar.
4. In this statement, Anil Kumar had disclosed that on the
fateful night of 14th June, 1995 at about 9 p.m., his cousin Arun
Kumar (son of Mehar Chand) and he were sitting on two separate
cots in the street in front of their houses in front of a park. Arun
was eating his dinner at that time while his sister Laxmi was
washing the parapet (chhajja) of the second floor of the House No.
A-195 when some drops of water fell on the roof of the adjacent
house No. A-194 in which Naresh (son of Ramji) was residing.
Because of this, Meena ('bahu'-wife of Naresh) started hurling
filthy abuses at Laxmi. Naresh also came out and started abusing
as well. Arun requested him not to abuse his sister, whereupon
Naresh called out to his brother and exhorted him to finish their
lives ("aaj inko jaan se hi khatam karde"). His brother, Mahender
came out wielding a knife in his right hand. Naresh caught hold of
Arun Kumar while Mahender stabbed him on the chest repeatedly
with the knife. Seeing this, Arun Kumar's mother Prem Devi as
well as he (Anil Kumar) tried to intervene and save him. At this,
Sanjay (Mahender's son) inflicted knife injury on Anil Kumar's
right hand and Prem Devi's stomach. In the meantime, Sanjay (son
of Arun's cousin Virender) as well as his brother Anand Kumar
reached there. Then Kundan (who was a son of Ramji) (another
brother of Naresh and Mahender) hit Anand Kumar with a rod on
his head while Jagdish had caught hold of Anand Kumar.
Thereafter Ajay caught hold of Sanjay (son of Virender) while
Mahender attacked his chest, shoulders and right ribs with a knife
as a consequence thereof Sanjay also received injuries.
5. Because of the injuries received by him, Arun Kumar
became unconscious and he was rushed to the Ganga Ram Hospital
by his brother Anand Kumar (PW 22). Sanjay (son of Virender)
was also sent to the hospital. In his statement, Anand Kumar has
stated that Naresh, Mahender and their associates had inflicted a
life endangering attack on them. He also stated that this incident
was witnessed by their sister Madhu as well as several people of
the mohalla and that legal action should be taken.
6. The police intervention in the matter commenced on
information being received by the police control room through the
wireless operator on 14th June, 1995 that 6/7 persons had been
attacked with knives at A-195, New Ranjit Nagar. This
information was conveyed at about 10.15 p.m. in the night to the
police station Patel Nagar and came to be logged by Ct. Ashok
Kumar (PW27) as DD No. 61B (Exh.PW27/A). The DD entry was
handed over to Ct. Sukhram for delivery to SI Hari Om (PW 2).
7. SI Hari Om (PW 2) has stated that on receipt of DD 61B, he
had proceeded to the spot alongwith Ct. Rakesh Kumar (PW11)
and Ct. Dinesh where they met SI Kali Ram (PW25)who had
already reached the spot. SI Kali Ram recorded the above
statement of Anil Kumar.
8. This statement was scribed by SI Kali Ram (PW 25) and
made his endorsement thereon (Exh.PW 25/A) and sent the same to
Ct. Rakesh Kumar at about 12.10 in the night to the police station
Patel Nagar recommending registration of the case. SI Kali Ram
(PW 25) left SI Hari Om on the spot. Since Anil Kumar was also
having injury, SI Hari Om was directed that he should also be got
medically examined.
9. At the hospital, SI Kali Ram (PW 25) obtained the MLC of
Arun Kumar wherein the doctor had opined that he had been
brought dead. As per the MLC of Arun Kumar, the following
injuries are mentioned thereon :-
"O/E - 5 stab wounds on anti chest wall.
1) Two on 4th intercostals space on right and one
left side of sternum;
2) One stab wound on the left intercostals space in
mid claviculer line;
3) 2 stab wounds on margin of rib cage"
10. SI Kali Ram (PW 25) learnt that other persons also injured in
the incident had gone to the RML Hospital and he accordingly
proceeded to the hospital. At the RML Hospital, he learnt about
the admission of three such injured persons, namely, Sanjay (son of
Virender), Anand Kumar and Smt. Prem Devi and collected their
MLCs. SI Kali Ram (PW25) recorded the statements of the three
injured persons.
11. Seizure of the clothes of the injured persons Sanjay and
Prem Devi in two sealed parcels was also effected by SI Kali Ram
vide seizure memo Exh.PW 9/B and thereafter he returned to the
spot. At the spot, Ct. Rakesh Kumar (PW 11) handed over the
rukka and the formal FIR to SI Kali Ram (PW 25).
12. The clothes of Prem Devi (PW8)were also seized by the
police. It is in the evidence of Madhu (PW19) that her mother
Prem Devi had tried to lift her injured brother Arun in which
process her clothes had got smeared with blood.
13. In the meantime, the crime team and the photographer had
inspected the spot and taken photographs.
14. Upon his return, SI Kali Ram (PW 25) prepared the site plan
(Exh.PW 25/B) at the pointing out of Anil Kumar.
15. It is in his testimony that SI Kali Ram (PW25) lifted a knife
from the spot and a sketch thereof was prepared (Exh.PW 2/A).
The total length of the knife was 10 inches with a blade of 5.5
inches. The handle which was made of steel and plastic was 4.5
incheslong. On the blade of the knife, the words 'ATTOR MADE
IN SPAIN' were found inscribed; seized blood from an electric
pole on the spot; seized bloodstained earth as well as sample earth
from different spots; converted them into sealed parcels which
were sealed with the seal of KRS. SI Kali Ram also seized the two
pairs of plastic chappals with one chappal having bloodstains lying
at the spot as well as a knife and its cover from the spot. The knife
was proved on record as Exh.P1 while its cover was proved as
Exh.P2. These articles were converted into eight sealed parcels
with the seal of KRS and taken into possession vide memo
Exh.PW 2/B which was duly witnessed by SI Hari Om and Anil
Kumar.
The seized articles were duly deposited with the MHC(M) at
the police station Patel Nagar.
16. The accused persons were not traceable on the spot.
17. At the Ganga Ram Hospital, the dead body of Arun Kumar
was identified by his father Shri Mehar Chand (PW 5) vide a
memo Exh.PW 5/A as well as by Shri Mohinder Kumar (PW 6)
vide memo Exh.PW 6/A.
SI Kali Ram (PW 25) requested for a post mortem
examination on the body of the deceased.
18. Pursuant to secret information received by the SHO Police
Station Patel Nagar to the effect that on 15 th of June, 1995, the
accused persons Mahender, Jagdish, Kundan were present at the
house of the in-laws of Mahender at the Pitam Pura Water Work
Quarters, they were arrested from there and were subjected to
personal search vide memo Exh.PW 10/A, 10/B and 10/C.
19. The three accused persons Jagdish, Kundan and Mahender
had made disclosure statements (Exh.PW 10/D, 10/E and 10/F)
giving details of the occurrence. Pursuant to the disclosure
statements, Mahender had led the police to certain bushes near the
Rohini Canal but nothing could be recovered on account of
darkness. Kundan had led the police to the ganda nala, Ranjit
Nagar but nothing could be recovered on account of darkness.
20. It is evidence that on 16th of June, 1995, Mahender led SI
Kali Ram and ASI Satbir Singh to a place near the Pitampura
Canal and from there, among the bushes, Mahender had taken out a
buttondar knife which could be closed with operation of a button.
The sketch of the knife was prepared by SI Kali Ram (Exh.PW
16/A) and it was kept into custody vide memo Exh.PW 16/B. This
knife was proved in court as Exh.P3.
21. Our attention is drawn to inscription of the words
"STEENLESS ROSTFREI" on the steel blade of the knife as
depicted in the sketch (Exh.PW16/A). The police officer has
carefully noted the measurement of the knife Exh.PW16/A. We
find the knife had a steel blade of 3.3 inches; it had handle of 4.7
inches while the total length of the knife is mentioned as 8 inches.
22. The recovery memo of this knife (Exh.PW16/B) mentions
that there was a button near the joint of its handle. The knife
opened if the button was pushed up and closed when pushed down.
Exh.PW16/B mentions that steel was at the joint as well as at the
end of the handle. This memo also noted that the words
"STEENLESS STEEL ROSTFREI" were inscribed on its blade.
23. Naresh Kumar and Ajay Kumar, who were also implicated
in the incident surrendered on 17th June, 1995 at the police station.
They were arrested and subjected to personal searches vide memo
Exh.PW 25/E and Exh.PW 25/F. These persons had made
disclosure statements Exh.PW 18/A and 18/B.
24. On 29th July, 1995, Sanjay (son of Mahender) was also
apprehended near the bus stop at Shadipur Depot and his personal
search was conducted vide Exh.PW 15/B. Sanjay had made a
disclosure statement Exh.PW 15/A disclosing that the chhuri
(knife) had fallen while he was trying to escape at the time of the
incident.
25. The scaled site plan (Exh.PW21/A) was prepared by
Inspector Devender Singh (PW 21) of the Crime Branch who
visited the place of occurrence on 6th September, 1995 and took
rough notes and measurements of the various points shown to him
at the instance of Smt. Prem Devi (PW 8), Anand Kumar (PW 22).
Based thereon, a scaled site plan (Exh.PW 21/A) alongwith
marginal notes was prepared and proved in evidence.
26. The scaled site plan prepared by PW 21 Inspector Devender
Singh has been proved as Exh.PW 21/A.
27. SI Kali Ram had inspected the spot and prepared the rough
sketch of spot (Exh.PW 25/B) at instance of PW7 Anil Kumar.
28. We may also note the proceedings undertaken by Inspector
G.L. Mehta who was at the relevant time posted as the SHO, Police
Station Patel Nagar on 14th June, 1995. After giving instructions
at the spot to SI Kali Ram and SI Hari Om, he had proceeded in the
search of the suspects. The proceedings under Section 174 CrPC
with regard to the request for the autopsy to be conducted on the
body of the deceased vide Exh.PW26/B on 15th June, 1995 as well
as the arrest and recording of all the disclosure statements was
undertaken by him. He had also directed that the seized articles be
sent for the forensic science examination.
29. Anil Kumar-PW7 was taken to the DDU Hospital by Ct.
Narsh Kumar and produced in DDU Hospital. His MLC No.
4409/95 has been proved on record as Exh.PW 23/A by the
prosecution. He was examined by Dr. R. Chawla (PW 23) who
proved his report as Exh.PW 23/A. Upon a local examination, the
doctor had found a half inch long muscle deep clear incised wound
as having been inflicted in an assault upon this patient.
30. On 15th June, 1995, a post mortem was conducted on the
body of the deceased by Dr. L.K. Baruah (PW 17) who proved the
report as Exh.PW 7/A. The doctor has noted the following external
and internal injuries on the body of the deceased at the time of the
post mortem :
"1. Incised wound size 1.3 cm.x0.5 cm. On the left
side front of chest. There is 1-1/2 medial to the left
nipple placed abliquely.
2. Incised wound size .3 cm.x0.5 cm.x? on the
middle of chest situated 1.5 cm. Right to the mid
line and below a line drawn between two nipples.
3. Two incised wounds size 1.3 cm. And other 1.5
cm. In the right epigeastric region.
4. Incised wounds left side lower part of chest 9
cm. Below left nipple size 1.4 cm.x2.3 cm.
5. Abrasion on the dorsom left forearm and hand.
6. Abrasion seen below left eye."
31. The doctor had opined that the injuries were ante-mortem in
nature and caused by sharp edged weapon (incised wound) and
were sufficient to cause death in the ordinary course of nature. The
abrasions had been caused by friction against rough surfaces. So
far as the cause of death was concerned, the doctor had opined
death was due to haemorrhagic shock. Time since death was about
16 hours. The doctor had additionally preserved a blood sample of
the deceased which was sealed and handed over to the police
alongwith a sample seal.
32. On 4th July, 1995, Additional SHO Ved Prakash of the
Police Station Patel Nagar had made an application to Dr. L.K.
Baruah for giving an opinion upon examination of the knife
recovered at the instance of Mahender Kumr as to whether it could
have been used to inflict injuries noted by the doctor on the post
mortem report no. 1724 dated 15th June, 1995 on the body of the
deceased. The application and the knife were sent to the doctor
vide road certificate no.53/21. The knife was produced before the
doctor sealed with the seal of KRS which was opened by the
doctor. In the sealed packets, the doctor found a button actuated
stainless steel knife with the handle in black with black metal with
the words 'super automatic' scribed on the handle. The doctor
carefully prepared a sketch on the application form on 17 th July,
1995 and after examining the knife as well as the injuries in the
post mortem report opined that the injuries on the body of Arun
Kumar were possible by the knife. The doctor proved his opinion
on record as Exh.PW 17/B. This knife was produced on record as
Exh.P3 by SI Kali Ram.
33. The recovered knife was produced before the doctor in the
court who confirmed that the knife Exh.P3 was the same regarding
which he had given his opinion Exh.PW 17/B.
34. After completion of the investigation, a final charge sheet
came to be filed against the accused persons before the learned
Metropolitan Magistrate who committed the case to the court of the
learned Sessions Judge. After examining the material on record, by
an order dated 23rd July, 1997, the trial court framed the following
charges :
Charges
Accused Act Offence
Mahinder Kumar Inflicting knife blows on the Section 302 r/w
person of Arun Kumar in Section 34 IPC
furtherance of their common
intention to commit murder.
Causing hurt to Sanjay by Section 324 r/w
means of knife in furtherance Section 34 IPC
of their common intention.
Being in possession of a knife Section 27 Arms Act
which was used by him as a
weapon of offence in the
commission of murder of Arun
Kumar.
Naresh Kumar Having caught hold of Section 302 r/w
deceased Arun Kumar when Section 34 IPC
Accused Mahinder inflicted
knife blows in furtherance of
their common intention to
commit murder.
Ajay Kumar Having caught hold of Sanjay Section 324 r/2
when Accused Mahinder Section 34 IPC
caused hurt to him by means
of knife in furtherance of their
common intention.
Sanjay (s/o Causing hurt to Prem Devi & Section 324 IPC
Mahinder) Anil Kumar by means of
chhuri.
35. The prosecution examined 22 witnesses in support of its
case. The incriminating evidence was put to the accused persons
and their statements recorded under Section 313 of the CrPC. No
defence evidence was led by the accused persons. After
consideration of the matter at length, the learned Trial Judge has
passed the impugned judgment dated 31st August, 2000 detailed as
above.
36. The conviction of the appellants rests primarily on the eye
witnesses account of the entire incident in the words of Anil Kumar
(PW 7); Smt. Prem Devi (PW8); Ms. Madhu (PW19); Sanjay
(PW20) and Anand Kumar (PW22).
The appellant Mahender was acquitted of the charge under
Section 324 of the IPC.
37. Crl.Appeal No.540/2000 filed by Naresh Kumar was
admitted for hearing on 11th September, 2000 and Crl.Appeal
No.764/2000 filed by Mahender Kumar was admitted for hearing
on 8th December, 2000. The sentence imposed upon appellant-
Naresh Kumar was suspended by the order dated 14th March, 2005
in view of the fact that the sentence imposed on the co-convict
Mahender Kumar had been suspended by the order dated 22 nd July,
2002 noting that Naresh Kumar had already undergone more than
five years in custody.
38. Despite the graphic ocular evidence of the manner in which
the events unfolded in the oral testimony of Anil Kumar, Prem
Devi, Anand Kumar and Sanjay, all eye witnesses, the primary
ground of challenge to their conviction has been laid by Mr.
Krishan Kumar, learned counsel on behalf of appellant Mahender
Kumar and Mr. S.D. Singh, learned counsel on behalf of Naresh
Kumar on the non-examination of Laxmi who was washing the
chhajja of the property no. A-195, New Ranjit Nagar. It is their
main contention that Laxmi was the root cause of the incident
without whom the incident would not have happened at all and she
was the most material witness. The submission is that adverse
inference, therefore, ought to have been drawn against the
prosecution for withholding material evidence. In support thereof,
reliance has been placed on the pronouncement of the Supreme
Court reported at (2001) 6 SCC 145 Takhaji Hiraji v Thakore
Kubersing Chamansingh & Ors.
39. The appellants also call upon this court to doubt the
disclosure statements attributed to Mahender Kumar (Exh.PW10/F)
submitting that though nothing was alleged to have been recovered
on the 15th of June, 1995, however, as per the recovery memo
Exh.PW16/B the knife alleged to have been recovered only on 16 th
June, 1995. It is further contended that the recovery from bushes
near the Pitampura Canal was an open place accessible to all and
beyond the control of the appellants, therefore, is of no
consequence.
In this regard, reliance is placed on the pronouncement of
this court dated 12th December, 2014 in Crl.A.No.979/2012 Heera
Lal @ Heera v State, Government of NCT.
Challenge to the ocular eyewitness evidence
40. The appellants have primarily challenged the credibility
evidence of Prem Devi (PW8). Let us first and foremost examine
the testimony of PW8 Prem Devi.
41. While the victims were members of the family of Mehar
Chand or related to him, the accused persons were sons of Ramji,
that is to say real brothers.
42. The prosecution witnesses including Amit Kumar (PW7),
cousin of deceased Arun Kumar, Madhu (PW19)- Prem Devi
(PW8) of Sh. Mehar Chand. daughter and wife respectively were
all residing with the deceased Arun Kumar in the premises no. A-
195, New Rajinder Nagar, New Delhi. Sanjay (PW20) (who was
the son of Virender Kumar, another son of Mehar Chand) was
residing in the premises no. A-218, DDA Flats, New Ranjit Nagar
alongwith his father. Sanjay (PW20) has stated that on the fateful
day, he was present near Arun's house.
43. The complainant Anil Kumar (PW7) was also a relative and
also residing in the vicinity at A-214, DDA Flats, New Ranjit
Nagar, whose first statement to the police (Exh.PW7/A) has been
extracted above by us. His testimony recorded on 10th February,
1998 corroborates the statement given by him to the police on the
night of the incident.
44. The accused persons Mahender and his son Sanjay; Naresh
as well as Jagdish were living in the property A-194 and their
brother Kundan was living in the premises A-196, DDA Flats, New
Ranjit Nagar. Ajay, another co-accused was a resident of X-345,
C, Ranjit Nagar.
45. Let us reconstruct the scenario in which the incident
occurred. We are concerned with properties in close proximity in a
DDA colony having narrow lanes (galis). The evidence on record
shows that the parties were residing in close proximity in DDA
Flats. These blocks are three storeyed flats in the colony which
consisted of 384 such three storeyed flats.
46. The incident happened on 14th day of June at about 8.45 i.e.
the summer evening.
47. PW22 Anand Kumar has stated that whenever there was
electricity failure, the inhabitants in the area used to come out into
the gali. The witness said that on that fateful day, electricity was
not off and they were in the gali since 8/8.30 p.m.
48. It is in the evidence of PW8 Prem Devi that the electricity in
the area had gone off about ten minutes prior to the whole
occurrence. But the same could not have impacted the capacity to
identify the perpetrators of the violence in the case for the reason
that the consequences of the electricity going off is amply
illustrated in the testimony of the various witnesses.
49. PW8 has proved that she was standing in the gali after
having prepared chapattis on a chula in the gallery of the 3rd floor
of the property where they were residing. PW7, 8, 10, 20 and 22
established that the deceased was sitting on a cot in the gali and
eating his food in front of the house opposite the park. Anil's
(PW7) stated that he was present near where the deceased Arun
was sitting on a cot and eating his food corroborates his mother
Prem Devi's statement that she had prepared the chapattis; that she
had not taken food and only the food of Arun had been brought
down and she was standing near there.
50. An effort has been made to impute a motive to Prem Devi
(PW8) for implicating the accused persons. The defence has
attempted to suggest that the ground floor persons were objecting
to the noise and disturbance made by deceased Arun Kumar and
his friends after consuming liquor in a jhuggi set up by Prem
Devi's family s an encroachment on government land on the
ground floor. But this has not been proved as a fact.
51. So far as the narration by PW8 about the unfolding of events
in the incident involving the spilling of the water drops; hurling
abuses on her daughter Laxmi by Meena as well as Naresh; the
futile intervention by the deceased Arun Kumar as well as the
subsequent events involving Naresh calling out to Mehar Chand,
his exhorting Mahender and their attack on Arun Kumar is
concerned, we findt hat it is on all fours with the testimony of Anil
(PW7) and his statement Exh.PW7/A. The witness has clearly
described the attack on Arun Kumar in which Naresh has caught
hold of the deceased Arun Kumar and Mahender had given knife
blows on his chest. The witness has stated that she was crying and
had intervened and also that Anil Kumar, son of Jai Prakash had
also tried to stop the accused person. She clearly stated that
Sanjay Mahender's son had given her a knife blow in her stomach
and that he had also inflicted a knife injury on the hand of Anil
when they had tried to save deceased Arun from the attack.
The witness Prem Devi (PW8) was, therefore, not only an
eye witness but one who had suffered injury in the incident.
52. We find Prem Devi was subjected to a medical examination
at the RML Willingdon Hospital and the MLC recorded by the
doctor notes that she has a cut mark on left side of umbilicus. The
medical report of Anil Kumar Exh.PW 23/A also notes half inch
long muscle deep clear incised wound corroborating the ocular
evidence. The medical evidence of the injuries corroborates the
oral testimony given by them about the incident and the attack on
them as well.
53. It is noteworthy that with regard to the incident on 14th June,
1995 in which Prem Devi's son suffered fatal injuries, she was
examined as a witness in court three years later on 10 th February,
1998. It needs no elaboration that with passage of time, her
memory must fade. Yet, the witness has deposed with clarity and
her testimony has been corroborated not only by the medical
evidence but also by the ocular evidence of the several other eye
witnesses.
54. Learned counsel for the appellant has strongly emphasised
the response to a defence suggestion noted in her cross examination
to the effect that "it was correct that after the quarrel, she came to
know that somebody had stabbed her son Arun Kumar". This
isolated suggestion is of no consequence. In fact, it appears to be
an erroneous record in as much as the preceding and subsequent
evidence establishes that she was physically present in the quarrel.
Immediately before responding to this suggestion, it is noted that
PW8 only knew that the abuses ended in 5 to 10 minutes and the
beating and stabbing ended within one second. The witness had
herself suffered physical injury when she intervened to save her
son. So there is no question of her coming to know of the incident
only after the quarrel had ended. Given the number of the injured
persons and the assailants attack on anybody who intervened,
certainly PW8 would have had opportunity to attend to her son
only once the accused persons left the spot. We have no manner of
doubt that PW8 is a reliable witness.
55. Similar is the challenge to one sentence lifted out of context
in the entire testimony of PW22 Anand Kumar who was also a
brother of the deceased who, alongwith his nephew Sanjay, was
also standing in the gali below the house. He has also given a
graphic account of the entire incident including the exhortations to
Mahender. From the testimony of this witness, it would appear
that he was residing on the second floor of the same building.
There is no material contradiction in his statement even if he was
not physically present when the incident commenced in the gali but
came down after he heard the noise. The defence has not been able
to shake his testimony so far as the manner in which the events
unfolded after Arun's intervention in the incident. The defence has
not been able to cast a doubt his presence at the spot. Anand
Kumar (PW22) has stated that abuses were heard from first floor to
second floor.
56. Again, so far as Sanjay (PW20) is concerned, learned
counsel for the appellants have lifted one sentence out of context in
his cross examination to lay a challenge to his entire testimony.
The presence of this witness at the spot is established in his
examination in chief. The narration of the manner about the abuses
as well as exhortations by Mahender to attack at Arun Kumar, the
intervention by Prem Devi and Anil Kumar to save Arun and the
assault by Sanjay are all established on record.
57. This witness (PW20) has also stated that Ajay caught hold of
him and caused injury to him on his chest, left shoulder and left
waist. The trial court has disbelieved this witness in view of the
challenge laid by the defence to his testimony in view of PW20's
statement in his cross examination that he could not notice properly
as to who caused the injuries to him on account of the dark and that
he had repeated what was told by his relatives on this aspect to the
police. He further stated that he had repeated the statement made
by him to the police in his testimony. In view thereof, in para 28,
the trial court has held that it was not "safe to place reliance upon
his statement and at last some doubt has been created on his
testimony regarding injuries caused to him". For this reason, Ajay
and Mahender who had been implicated by Sanjay (PW 20) for
having caused knife injury to the witness have been given the
benefit of doubt and acquitted.
58. No appeal has been filed by the State to the acquittal, and
therefore so far as the infliction of injuries to the witness Sanjay
son of Virender is concerned or the finding of the trial court is
concerned in this regard, it would have to stand even though we
may be of a different view. However, the rest of the testimony of
this witness cannot be faulted. The witness is only confused about
the manner in which injuries were inflicted to his own person.
However, the defence has not challenged the rest of the narration of
the unfolding of events by this witness. This witness has also not
stated that it was completely dark.
59. Madhu (PW19) was the widowed daughter of Mehar Chand
who was also residing with the deceased in the property no. A-195
with her father. She has also testified that on 14th June, 1995, she
was also sitting on a cot below the house in the gali while her
brother Arun Kumar was sitting some distance away on a cot
taking his food. She also refers to her sister Laxmi washing the
chhajja of their house when some water fell on Naresh's house
who resides in A-194 which was lower than A-195 because of
which his wife started abusing Laxmi. The witness refers to the
presence of the other witness and also details the incident in which
injuries were caused to all of those who attempted to intervene.
60. Learned counsels for the appellants have tried to cast a doubt
on the identification of the assailants by this prosecution witness
drawing attention to the testimony of Prem Devi (PW8) as well as
Sanjay (PW20) that there was no electricity at that time. We have
noted above that the time in question was only about 8.45 p.m. in
the peak summer month of June in 1995. The colony appears to be
consisting of three storeyed flats in close proximity having narrow
streets (galis) in front. The evidence makes out a typical mohalla
with narrow streets where people traditionally eat meals on cots
(charpoys), chatting with neighbours. It is in evidence that as is
traditional, people in the colony would spread cots in the street in
front of the house and lounge there. This would be more so when
there is a power break down in the summer and everybody
converges outside their houses seeking air.
61. So far as the persons involved in the incident are concerned,
both the victims and the assailants were living in close proximity,
in fact adjacent houses, and would be seeing each other every day.
Being such close neighbours, they would be identifiable even if it
could be held that it was dark or that there was insufficient light.
62. It is further in evidence that Naresh had called out to
Mahender to come out. Each of the prosecution witnesses have
referred to abuses being hurled by Naresh and his wife Meena
which were audible even on the first and second floors of the
property. Exhortation is attributed to Naresh pursuant whereby
Mahender had come out of the upper floor of his house wielding a
knife with which he has inflicted injuries not only widespread Arun
Kumar but also open to all the witnesses PW7 and PW8.
Therefore, apart from physically viewing the assailants, the
neighbours had access to their voices for identification as well.
63. The unfolding of the events also shows that the stab injuries
have been inflicted at close range when Anil (PW7) and Prem Devi
(PW8) tried to save Arun Kumar from the attack. Their injuries
have been established in the medical examinations on record.
Thus, though elaborate submissions have been made with regard to
the challenge to the testimony of the prosecution witnesses, we find
that the assailants were not unknown intruders whose identification
was not possible. For this reason, the challenge to the
identification on behalf of the appellants by the prosecution
witnesses is of no merit and has to be rejected.
64. It is trite that it is sufficient to prove an offence beyond
reasonable doubt on the testimony of a single reliable witness and
it is completely unnecessary for the prosecution to burden court
record with multiple witnesses of the same fact.
65. We may refer to the pronouncement of the Supreme Court
reported at (2012) 1 SCC 10 Prithipal Singh & Ors. v. State of
Punjab & Ors. in this regard wherein it was observed as under :
"Evidence of the sole eyewitness
49. This Court has consistently held that as a
general rule the court can and may act on the
testimony of a single witness provided he is wholly
reliable. There is no legal impediment in convicting a
person on the sole testimony of a single witness. That
is the logic of Section 134 of the Evidence Act. But if
there are doubts about the testimony, the court will
insist on corroboration. In fact, it is not the number or
the quantity, but the quality that is material. The
time-honoured principle is that evidence has to be
weighed and not counted. The test is whether the
evidence has a ring of truth, is cogent, credible and
trustworthy or otherwise. The legal system has laid
emphasis on value, weight and quality of evidence,
rather than on quantity, multiplicity or plurality of
witnesses. It is, therefore, open to a competent court
to fully and completely rely on a solitary witness and
record conviction. Conversely, it may acquit the
accused in spite of testimony of several witnesses if it
is not satisfied about the quality of evidence.
[See Vadivelu Thevar v.State of Madras [AIR 1957
SC 614 : 1957 Cri LJ 1000] , Sunil Kumar v. State
(Govt. of NCT of Delhi) [(2003) 11 SCC 367 : 2004
SCC (Cri) 1055] , Namdeo v. State of
Maharashtra [(2007) 14 SCC 150 : (2009) 1 SCC
(Cri) 773] and Bipin Kumar Mondal v. State of
W.B. [(2010) 12 SCC 91 : (2011) 2 SCC (Cri) 150 :
AIR 2010 SC 3638] ]"
This judgment has also been relied upon in AIR 2016 SC
310 Sudip Kr. Sen alias Biltu v. State of West Bengal & Ors.
66. In the instant case, it became necessary for the prosecution to
examine the several eye witnesses because of the reason that there
were multiple injured persons with regard to the incident.
67. We also find that no challenge has been made and rightly so
to the testimony of PW7. In fact, a conviction could have been
based on the sole unchallenged truthful graphic account of PW7
Anil Kumar in the present case.
68. As a plea of desperation, learned counsels would contend
that the witnesses were close relatives and therefore were interested
witnesses.
69. It is a settled proposition of criminal jurisprudence that
'related' witnesses are not the same as 'interested' witnesses. In
this regard we may advert to the pronouncement of the Supreme
Court reported at (2008) 16 SCC 73 State of Uttar Pradesh v.
Kishanpal & Ors. wherein it was held thus:
" 17. The plea of "interested witness", "related witness"
have been succinctly explained by this Court in State of
Rajasthan v. Kalki [(1981) 2 SCC 752 : 1981 SCC (Cri)
593] . The following conclusion in para 7 is relevant: (SCC
p. 754)
"7. As mentioned above the High Court has declined
to rely on the evidence of PW 1 on two grounds: (1)
she was a 'highly interested' witness because she 'is
the wife of the deceased', and (2) there were
discrepancies in her evidence. With respect, in our
opinion, both the grounds are invalid. For, in the
circumstances of the case, she was the only and most
natural witness; she was the only person present in the
hut with the deceased at the time of the occurrence,
and the only person who saw the occurrence. True, it
is, she is the wife of the deceased; but she cannot be
called an 'interested' witness. She is related to the
deceased. 'Related' is not equivalent to 'interested'.
A witness may be called 'interested' only when he or
she derives some benefit from the result of a litigation;
in the decree in a civil case, or in seeing an accused
person punished. A witness who is a natural one and is
the only possible eyewitness in the circumstances of a
case cannot be said to be 'interested'."
From the above it is clear that "related" is not equivalent to
"interested". The witness may be called "interested" only
when he or she has derived some benefit from the result of a
litigation, in the decree in a civil case, or in seeing an
accused person punished. A witness, who is a natural one
and is the only possible eyewitness in the circumstances of a
case cannot be said to be "interested"."
70. In Kishanpal it was expounded that plea of defence to the
effect that it would not be safe to accept the evidence of related
witness was rejected by the Supreme Court and it was further held
thus:
18. The plea of defence that it would not be safe to accept
the evidence of the eyewitnesses who are the close relatives
of the deceased, has not been accepted by this Court. There
is no such universal rule as to warrant rejection of the
evidence of a witness merely because he/she was related to
or interested in the parties to either side. In such cases, if the
presence of such a witness at the time of occurrence is
proved or considered to be natural and the evidence tendered
by such witness is found in the light of the surrounding
circumstances and probabilities of the case to be true, it can
provide a good and sound basis for conviction of the
accused. Where it is shown that there is enmity and the
witnesses are near relatives too, the court has a duty to
scrutinise their evidence with great care, caution and
circumspection and be very careful too in weighing such
evidence. The testimony of related witnesses, if after deep
scrutiny, found to be credible cannot be discarded.
19. It is now well settled that the evidence of witness cannot
be discarded merely on the ground that he is a related
witness, if otherwise the same is found credible. The
witness could be a relative but that does not mean his
statement should be rejected. In such a case, it is the duty
of the court to be more careful in the matter of scrutiny of
evidence of the interested witness, and if, on such scrutiny
it is found that the evidence on record of such interested
witness is worth credence, the same would not be discarded
merely on the ground that the witness is an interested
witness. Caution is to be applied by the court while
scrutinising the evidence of the interested witness.
20. It is well settled that it is the quality of the evidence and
not the quantity of the evidence which is required to be
judged by the court to place credence on the statement. The
ground that the witness being a close relative and
consequently being a partisan witness, should not be relied
upon, has no substance. Relationship is not a factor to affect
credibility of a witness. It is more often than not that a
relation would not conceal actual culprit and make
allegations against an innocent person. Foundation has to be
laid if plea of false implication is made. In such cases, the
court has to adopt a careful approach and analyse the
evidence to find out whether it is cogent and credible.
(Vide State of A.P. v. Veddula Veera Reddy[(1998) 4 SCC
145 : 1998 SCC (Cri) 817] , Ram Anup Singh v. State of
Bihar[(2002) 6 SCC 686 : 2002 SCC (Cri) 1466] , Harijana
Narayana v. State of A.P.[(2003) 11 SCC 681 : 2004 SCC
(Cri) 65] , Anil Sharma v. State of Jharkhand[(2004) 5 SCC
679 : 2004 SCC (Cri) 1706] , Seeman v. State [(2005) 11
SCC 142 : 2005 SCC (Cri) 1893] , Salim Sahab v. State of
M.P. [(2007) 1 SCC 699 : (2007) 1 SCC (Cri) 425]
, Kapildeo Mandal v. State of Bihar [(2008) 16 SCC 99 :
AIR 2008 SC 533] and D. Sailu v. State of A.P. [(2007) 14
SCC 397 : (2009) 1 SCC (Cri) 898 : AIR 2008 SC 505] )
21. In Kulesh Mondal v. State of W.B. [(2007) 8 SCC 578 :
(2007) 3 SCC (Cri) 741] this Court considered the reliability
of interested/related witnesses and has reiterated the earlier
rulings and it is worthwhile to refer the same which reads as
under: (SCC pp. 580-81, para 11)
"11. '10. We may also observe that the ground that
the [witnesses being close relatives and
consequently being partisan witnesses,] should
not be relied upon, has no substance. This
theory was repelled by this Court as early as
inDalip Singh v. State of Punjab [AIR 1953 SC
364] in which surprise was expressed over the
impression which prevailed in the minds of the
members of the Bar that relatives were not
independent witnesses. Speaking through
Vivian Bose, J. it was observed: (AIR p. 366,
para 25)
"25. We are unable to agree with the
learned Judges of the High Court that the
testimony of the two eyewitnesses
requires corroboration. If the foundation
for such an observation is based on the
fact that the witnesses are women and
that the fate of seven men hangs on their
testimony, we know of no such rule. If it
is grounded on the reason that they are
closely related to the deceased we are
unable to concur. This is a fallacy
common to many criminal cases and one
which another Bench of this Court
endeavoured to dispel
in Rameshwar v. State of Rajasthan [AIR
1952 SC 54] (AIR at p. 59). We find,
however, that it unfortunately still
persists, if not in the judgments of the
Courts, at any rate in the arguments of
counsel."
11. Again in Masalti v. State of U.P. [AIR 1965
SC 202] this Court observed: (AIR pp. 209-10,
para 14)
"14. But it would, we think, be
unreasonable to contend that evidence
given by witnesses should be discarded
only on the ground that it is evidence of
partisan or interested witnesses. ... The
mechanical rejection of such evidence on
the sole ground that it is partisan would
invariably lead to failure of justice. No
hard-and-fast rule can be laid down as to
how much evidence should be
appreciated. Judicial approach has to be
cautious in dealing with such evidence;
but the plea that such evidence should be
rejected because it is partisan cannot be
accepted as correct."
12. To the same effect is the decision in State of
Punjab v. Jagir Singh[(1974) 3 SCC 277 : 1973
SCC (Cri) 886] , Lehna v. State of
Haryana [(2002) 3 SCC 76 : 2002 SCC (Cri)
526] .... As observed by this Court in State of
Rajasthan v. Kalki [(1981) 2 SCC 752 : 1981
SCC (Cri) 593] normal discrepancies in
evidence are those which are due to normal
errors of observation, normal errors of
memory due to lapse of time, due to mental
disposition such as shock and horror at the
time of occurrence and those are always there
however honest and truthful a witness may be.
Material discrepancies are those which are not
normal, and not expected of a normal person.
Courts have to label the category to which a
discrepancy may be categorised. While normal
discrepancies do not corrode the credibility of
a party's case, material discrepancies do so.
These aspects were highlighted recently
in Krishna Mochi v. State of Bihar [(2002) 6
SCC 81 : 2002 SCC (Cri) 1220] .' [Ed.: As
observed in Bhargavan v. State of Kerala,
(2004) 12 SCC 414, at pp. 420-21, paras 10-
12.]"
(Emphasis supplied)
71. It is contended that no public and independent witness has
been examined. This submission is completely misconceived in
light of the aforenoted legal propositions. The witnesses may have
been related but this would in fact be a motivation for ensuring that
the real culprits are brought to book.
72. Three of the eye witnesses have themselves suffered injuries
which have been established by the independent medical evidence
on record. There would be no motive for false implication on the
part of these witnesses i.e. mother, brother and cousins of the
deceased who were also injured while trying to save him. None
has been in fact proved or for that matter suggested. No material
discrepancy is pointed out. It would be unfortunate to disbelieve
the clear and credible evidence of the eye witnesses only for the
reason that they were related to the deceased Arun Kumar. We
have no hesitation in rejecting this ground of challenge by the
appellants.
Withholding the material witness
73. We now examine the primary ground of challenge by the
appellants which is that the prosecution case must fail as Laxmi,
who was the geneis of the dispute, has not been examined.
74. So far as the failure to examine Laxmi is concerned, the only
role attributed to her by the prosecution is that of washing the
parapet of her residence in the property no. A-195.
75. As noted above, all the eye witnesses have given credible
evidence with regard to drops of water on the property falling of
the appellants in A-194 and the ensuing abuses and violence. All
these persons were physically present when the incident unfolded.
No gap or infirmity results in the prosecution case merely because
Laxmi was not examined. In the facts and circumstances of the
case, she would have merely been the additional witness to the
events which occurred.
76. We also find that it was the abuses hurled by Meena and her
appellant husband Naresh, which really generated the heat. Arun
Kumar (the deceased) had objected to these abuses which was
resented by Naresh igniting his anger and leading to the brutal and
vicious attack. Laxmi had no role in the incident.
77. For all these reasons, the principle laid down by the Supreme
Court in (2001) 6 SCC 145 Takhaji Hiraji v. Thakore Kubersing
Chamansing & Ors. has no application at all.
78. In our view, no adverse inference can be drawn in the
present case against the prosecution for failing to examine Laxmi.
Intention to commit the offence under Section 34 of the IPC
79. Mr. S.D. Singh, learned counsel for the appellant Naresh
Kumar has placed reliance on the pronouncement of the Supreme
Court reported at AIR 1984 SC 1717 Dajya Moshya Bhil & Ors. v.
State of Maharashtra to contend that the prosecution has to
establish that each of the participating culprit had the same
intention to commit a certain act. There can be no dispute at all
with this well settled principle.
80. In the present case, the prosecution has led evidence and
established the exhortation by Naresh resulting in Mahender
storming out of the house armed with a knife with which he had
inflicted a fatal injury upon the deceased and also caused injury to
the two prosecution witnesses. In view thereof, the prosecution has
adequately established the words attributed to Naresh itself
establishing the intention to cause the death of Arun Kumar who
had objected to the abuses being hurled by him at his sister, and the
deliberate acts of Mahender pursued thereto.
81. In facts of the case before the Supreme Court in 1982 SCC
(Crl)264 Shambhu Kuer v State of Bihar, it had been held that the
appellant was merely holding the deceased and scuffling with him
while the co-accused had taken out the knife and commenced the
assault. It was held by the court that from this fact, it could not be
beyond reasonable doubt that the appellant shared the intention of
the co-accused to murder the deceased. It was so held purely in the
facts of the case. As noted above, in the present case, angered by
Arun's objection to his act of hurling abuses at Arun's sister, it was
Naresh who had called out Mahender with the exhortation that the
deceased had to be finished resulting in Mahender causing the fatal
injury helped by Naresh.
82. Mr. S.D. Singh, learned counsel for Naresh Kumar has
placed reliance also on the pronouncement of the Supreme Court
reported at (1989) SCC (Cri) 357, Sukhram s/o Ramratan v. State
of U.P. contending that acquittal of one of the named accused
would stand in the way of the appellant being convicted
constructively under Section 34 for the substantive offence under
Section 302 and 436 of the IPC. This judgment has also been
passed in the facts and circumstances of the case. In the present
case, the witnesses have categorically described the roles of both
the appellants and despite extensive cross examinations, the
appellants have been unable to shake the credible testimony of the
eye witnesses to the occurrence. This judgment also has, therefore,
no application at all to the facts of the present case.
83. In this regard, Mr. Varun Goswami, learned APP for the
State has placed the pronouncement of the Supreme Court reported
at (2001) 3 SCC 673 Suresh & Anr. v. State of U.P. to urge that
preconcert or preplanning may develop at the spur of the moment.
We may usefully extract the relevant portion of this judgment on
the issue which reads thus :
"19. Hence, under Section 34 one criminal act,
composed of more than one act, can be committed by
more than one persons and if such commission is in
furtherance of the common intention of all of them, each
would be liable for the criminal act so committed.
20. To understand the section better it is useful to
recast it in a different form by way of an illustration.
This would highlight the difference when several
persons do not participate in the crime committed by
only one person even though there was common
intention of all the several persons. Suppose a section
was drafted like this: "When a criminal act is done by
one person in furtherance of the common intention of
several persons each of such several persons is liable for
that act in the same manner as if it were done by all such
persons."
21. Obviously Section 34 is not meant to cover a
situation which may fall within the fictitiously
concocted section caricatured above. In that concocted
provision the co-accused need not do anything because
the act done by the principal accused would nail the co-
accused also on the ground that such act was done by
that single person in furtherance of the common
intention of all the several persons. But Section 34 is
intended to meet a situation wherein all the co-accused
have also done something to constitute the commission
of a criminal act.
22. Even the concept of presence of the co-accused
at the scene is not a necessary requirement to attract
Section 34, e.g. the co-accused can remain a little away
and supply weapons to the participating accused either
by throwing or by catapulting them so that the
participating accused can inflict injuries on the targeted
person. Another illustration, with advancement of
electronic equipment can be etched like this: One of
such persons, in furtherance of the common intention,
overseeing the actions from a distance through
binoculars can give instructions to the other accused
through mobile phones as to how effectively the
common intention can be implemented. We do not find
any reason why Section 34 cannot apply in the case of
those two persons indicated in the illustrations.
23. Thus to attract Section 34 IPC two postulates are
indispensable: (1) The criminal act (consisting of a
series of acts) should have been done, not by one
person, but more than one person. (2) Doing of every
such individual act cumulatively resulting in the
commission of criminal offence should have been in
furtherance of the common intention of all such
persons.
24. Looking at the first postulate pointed out above,
the accused who is to be fastened with liability on the
strength of Section 34 IPC should have done some act
which has nexus with the offence. Such an act need not
be very substantial, it is enough that the act is only for
guarding the scene for facilitating the crime. The act
need not necessarily be overt, even if it is only a covert
act it is enough, provided such a covert act is proved to
have been done by the co-accused in furtherance of the
common intention. Even an omission can, in certain
circumstances, amount to an act. This is the purport of
Section 32 IPC. So the act mentioned in Section 34 IPC
need not be an overt act, even an illegal omission to do
a certain act in a certain situation can amount to an
act, e.g. a co-accused, standing near the victim face to
face saw an armed assailant nearing the victim from
behind with a weapon to inflict a blow. The co-accused,
who could have alerted the victim to move away to
escape from the onslaught deliberately refrained from
doing so with the idea that the blow should fall on the
victim. Such omission can also be termed as an act in a
given situation. Hence an act, whether overt or covert, is
indispensable to be done by a co-accused to be fastened
with the liability under the section. But if no such act is
done by a person, even if he has common intention with
the others for the accomplishment of the crime, Section
34 IPC cannot be invoked for convicting that person. In
other words, the accused who only keeps the common
intention in his mind, but does not do any act at the
scene, cannot be convicted with the aid of Section 34
IPC.
25. There may be other provisions in the IPC like
Section 120-B or Section 109 which could then be
invoked to catch such non-participating accused. Thus
participation in the crime in furtherance of the common
intention is a sine qua non for Section 34 IPC.
Exhortation to other accused, even guarding the scene
etc. would amount to participation. Of course, when the
allegation against an accused is that he participated in
the crime by oral exhortation or by guarding the scene
the court has to evaluate the evidence very carefully for
deciding whether that person had really done any such
act.
xxx xxx xxx
30. Mr Pramod Swarup, learned counsel for the State
invited our attention to the decision of this Court
in State of U.P. v. Iftikhar Khan [(1973) 1 SCC 512 :
1973 SCC (Cri) 384] in which it was observed that to
attract Section 34 IPC it is not necessary that any overt
act should have been done by the co-accused. In that
case four accused persons were convicted on a fact
situation that two of them were armed with pistols and
the other two were armed with lathis and all the four
together walked in a body towards the deceased and
after firing the pistols at the deceased all the four
together left the scene. The finding of fact in that case
was also the same. When a plea was made on behalf of
those two persons who were armed with lathis that they
did not do any overt act, this Court made the above
observation. From the facts of that case it can be said
that there was no act on behalf of the two lathi-holders
although the deceased was killed with pistols alone. The
criminal act in that case was done by all the persons in
furtherance of the common intention to finish the
deceased. Hence the observation made by Vaidialingam,
J., in the said case has to be understood on the said
peculiar facts."
(Emphasis supplied)
84. On the same aspect, Mr. Varun Goswami, learned APP has
placed the pronouncement of the Supreme Court reported at AIR
(2016) SC 310, Sudip Kr. Sen alias Biltu v. State of West Bengal
& Ors. to urge that the intention of the appellant Naresh has to be
gathered from his conduct and that his action in exhorting the other
accused in the present case conclusively establishes his common
intention for commission of the offences with which they have
been charged and found guilty.
85. In the judgment reported at AIR 2016 SC 310 Sudip Kr. Sen
alias Biltu v. State of West Bengal & Ors. it was held as follows :
"14. Section 34 IPC embodies the principle of joint
liability in the doing of a criminal act and essence of that
liability is the existence of common intention. Common
intention implies acting in concert and existence of a pre-
arranged plan which is to be proved/inferred either from
the conduct of the accused persons or from attendant
circumstances. To invoke Section 34 IPC, it must be
established that the criminal act was done by more than
one person in furtherance of common intention of all. It
must, therefore, be proved that:
(i) there was common intention on the part of
several persons to commit a particular crime, and
(ii) the crime was actually committed by them in
furtherance of that common intention.
Common intention implies pre-arranged plan.
Under Section 34 IPC, a pre-concert in the sense of a
distinct previous plan is not necessary to be proved.
The essence of liability under Section 34 IPC is
conscious mind of persons participating in the
criminal action to bring about a particular result. The
question whether there was any common intention or
not depends upon inference to be drawn from the
proved facts and circumstances of each case. The
totality of the circumstances must be taken into
consideration in arriving at the conclusion whether
the accused had a common intention to commit an
offence with which they could be convicted.
15. Considering the facts and circumstances of the case
in hand, it is evident that there was prior concert and that
the appellants have acted in furtherance of common
intention. As seen from the evidence of PW 6, all the
appellants and another co-accused Sk Kochi were doing
illegal business of extorting money from the flat owners.
On the date of occurrence, all the appellants and another
co-accused Sk Kochi came together and Sudip Kumar Sen
alias Biltu (A-3) started abusing the deceased and Apu
Chatterjee (A-6) exhorted others that if the men of Khoka
were not killed, there would be no peace. On such
exhortation, Tapas Das and Sankar Das (A-2 and A-4)
caught hold of the deceased, and Goutam Ghosh and Sk
Kochi (A-1 and A-5) fired at the deceased. The facts and
circumstances clearly establish meeting of minds and
common intention of the appellants in committing the
murder of Saikat Saha and the appellants were rightly
convicted under Section 302 read with Section 34 IPC.
No ground for interference under Article 136 of the
Constitution of India is made out."
86. In this case, the appellants were alleged to be doing illegal
business of extracting money from flat owners. On the date of the
incident, all the appellants came together at the place of
occurrence. One of the appellants started abusing the deceased.
On such exhortation, two of the appellants caught hold of the
victim and the other two appellants fired at him. It was held that
the facts and circumstances (including the exhortation) clearly
establish meeting of minds and common intention of the appellants
in committing the murder and therefore, the conviction of the
appellants under Section 300 with the aid of Section 34 was proper.
This judgment squarely applies to the present case.
We are satisfied that the trial court has rightly concluded
that, the ingredients of Section 34 of the IPC have been satisfied in
the present case.
Forensic evidence
87. The counsel for the appellants have also urged that it was not
only possible, but essential for the investigating agency to have
ascertained not only the presence of the blood group on the
recovered articles including the knife but also the grouping of the
blood of the deceased and presence of blood of such group on the
recovered knife.
88. The following articles were seized by the Investigating
Officer from the spot and from RML Hospital which were sent to
the Forensic Science Laboratory for opinion :
1. Clothes of Sanjay, Anand and Prem From RML Ex.9/A
Devi sealed in a pulanda with the seal Hospital
of CMO
2. Knife (Ex.2/A) in a plastic cover total From the
length of which was 10", blade 5.5", spot
handle 4.5", handle made of steel
plastic
3. Blood sample from electric pole From the
sealed in a cloth parcel with the seal spot
KRS
4. Two pairs of plastic chappals. One From the
pair blood stained. Letter 'M' written spot Ex.2/B
on left foot blood stained chappal and
letter 'R1' written on the right foot
blood stained chappal. Sealed
separately in two parcels with the seal
KRS.
5. Blood stained earth and samples earth From the
from the spot. Samples sealed spot
separately with seal of KRS.
89. In this regard, we may note that on a serological
examination, the Forensic Science Laboratory vide its report dated
29th March, 1996 (Exh.PY) has reported presence of human blood
on the following five exhibits :
Exhibits Species of Origin ABO Group
remarks
2 blood stained Human No reaction
cotton wool
3 pair of sleepers Human No reaction
4 blood stained
earth No reaction -
5 cemented and
concrete material Human 'B' Group
6 earth control No reaction
-
7 shirt Human 'B' Group
8 Ladies Shirt Human 'B' Group
'B' Group
9 Blood stained Human
gauze cloth -
10a Shirt
No reaction
10b Pants with belt -
No reaction
-
11 knife
No reaction
90. It is to be noted that Exh.P9 i.e. the bloodstained gauze has
the blood sample of the deceased on which B Group blood has
been identified. The same blood group has been identified on
Exh.P7 (the shirt) and P8 as well as the ladies shirt belonging to
Prem Devi (PW8).
91. It is in the evidence of Madhu (PW19) that Prem Devi
(PW8) had picked up their injured son Arun.
The forensic evidence thus corroborates the ocular evidence
and established the presence of PW8 Prem Devi at the spot.
92. We also note that the forensic evidence has also reported no
blood on the recovered knife.
Challenge to the recovery of the knife
93. It has been contended at some length the disclosure
statements attributed to the appellant Mahender Kumar dated 15 th
June, 1995 Exh.PW10/F but nothing was recovered pursuant
thereto. The alleged disclosure was admittedly made on 15th June,
1995. However, the prosecution has attributed recovery of a knife
pursuant thereto on the 16th June, 1995 and have relied upon a
recovery memo (Exh.PW16/A) in this regard.
An absolute proposition is pressed before us that the
recovery of the knife having been effected from an open place must
be disbelieved.
94. Mr. Krishan Kumar, learned counsel for Mahender Kumar
would also contend that the weapon of offence recovered from the
appellant was engraved with the words "STEENLESS STEEL
ROSTFREI" as per Exh.PW6/A. However, the knife produced for
opinion before Dr. L.K. Baruah was engraved with the words
'Super Automatic' as per Exh.PW17/B. It is pointed out that the
knife which was sent to the forensic science laboratory was also
found engraved with the words 'Super Automatic'. The
submission, therefore, is that the knife allegedly recovered at the
instance of the appellant was not the one sent either to the post
mortem doctor or for the forensic science laboratory and was not
the one used for the commission of the offence.
95. Learned counsel would also doubt the recovery contending
that as per the disclosure statements, the knife had been concealed
in bushes near the Rohini canal whereas recovery was effected
from the bushes near the Pitampura Canal bushes.
96. Mr. S.D. Singh would also want the court to doubt the
recovery for the reason that when the recovered knife was
subjected to an FSL examination, it was reported vide Exh.PX and
PY that the knife gave "no reaction" so far as the presence of
original human blood was concerned under the column "species of
origin" is concerned in the report Exh.PY. In this regard, learned
counsel would rely on the pronouncement of this court reported at
1997 (2) Crimes 714 Sita Ram v. State (Delhi Administration).
97. Our attention has been drawn to the statements attributed to
the appellant Mahender in Exh.PW10/F to the effect that he could
get recovered the knife which had been hidden in bushes near the
Rohini canal.
98. Mr. Krishan Kumar, learned counsel would point out that as
per Exh.PW16/B, the police has claimed to have recovered a knife
on the pointing out of the appellant Mahender from some bushes
on the right side of the Pitampura canal. As per the recovery memo
(Exh.PW16/A) and its sketch (Exh.PW16/A), this knife was
described was having a total length of 8 inches with the blade of
3.3 inches and the handle of 4.7 inches. On the blade of the knife,
the words "STEENLESS STEEL ROSTFREI" were inscribed; near
the joint, there was a button and the knife opened upon the button
being pushed upwards and closed upon the button being brought
down. On the joint and the lower portion of the handle, steel had
been affixed. This knife was sealed in a pullanda with the seal of
KRS, both of which were taken into possession.
99. The seized articles were stored in the malkhana on 16 th June,
1995 and deposited with Ct. Prithivipal Singh (PW13) who was
posted as MHC(M) with the police station Patel Nagar. The sealed
knife was handed over to SI Kali Ram (PW25) on 4th July, 1995
with the seal intact and an entry was made about it in the register
no.19. The extract of the malkhana register which has been
proved on record as Exh.PW13/E records the full description of the
knife. The witness has clearly stated that so long as the property
remained in his custody, the same was not tampered with. Despite
opportunity being given, this witness has not been cross examined.
100. SI Kali Ram (PW25) has clearly described the manner in
which Mahender led the police to the place near the Pitampura
Canal and got recovered the knife. The witness has also stated that
on the directions of the SHO on 4th July, 1995, he had taken this
weapon in sealed condition duly sealed with the seal of KRS to the
mortuary and submitted it to the doctor for his opinion with the
seal intact, as to whether it could be the weapon of offence.
101. The doctor, upon examination, opined that the injuries on the
body of deceased Arun Kumar were possible with that knife. His
opinion has been proved on record as Exh.PW17/B. This knife
was proved in evidence as Exh.P3.
We find that in the recovery memo (Exh.PW16/B) the words
'STEENLESS STEEL ROSTFREI" on the steel blade of the knife
are noted.
So far as the words 'Super Automatic' are concerned, we
find that in his opinion, Exh.PW17/B, Dr. L.K. Baruah has noted
that the same are written on the handle part in black metal which
has the button.
We find that no question at all has been put to the doctor as
to whether there was anything written on the blade.
We also find that on the aspect of the recovery of the knife
as well as challenge to the knife on which the opinion had been
sought, neither SI Kali Ram (PW25) nor Inspector G.L. Mehta
(PW26) who was the SHO have been cross examined. No
suggestion even has been given that Exh.P3 which was produced in
court was not the knife which was recovered on the pointing out of
Mahender or that it was not the knife which was shown to the
doctor. No question has been put to the investigating officer on
the other police witnesses as to whether there was anything written
on the handle of the recovered knife.
102. The investigating officer and the doctor have noted what to
them was the most distinguishing feature of the knife. The defence
does not point out that the words 'STEENLESS STEEL ROSTFREI'
are not appearing on the blade of the knife Exh.P3 in the evidence.
Or that the words 'Super Automatic' do not appear on its plastic
handle.
103. The measurements of the knife, its shape, size and
description, as well as the sketch of the knife prepared by the
doctor being Exh.PW17/B, match those in the recovery memo
Exh.PW16/A prepared by the investigating officer.
104. We are, therefore, unable to disbelieve the recovery of the
knife on the pointing out of the appellant Mahender or that the
recovered knife was not the one which was sent to the doctor for
recording his opinion as to whether it could be the weapon of the
offence as opined in Exh.PW17/B. Such challenge laid for the
first time by way of the present appeal is rejected.
105. So far as the failure of the police to recover the weapon on
15th June, 1995 is concerned, the evidence on record would show
that the place where the knife was hidden was in bushes on the
banks of a canal. No cross examination of the witnesses has been
effected on this aspect of the matter. Merely because the recovery
was not effected on in the late night hours of 15th June, 1995 itself,
but could be effected only on the 16th June, 1995 would be no
reason to disbelieve the same.
106. The proposition that recovery of an article from open place
must always be disbelieved stands rejected by the Supreme Court
in the pronouncement reported at (1999) 4 SCC 370 State of
Himachal Pradesh v. Jeet Singh. In this regards, it was held thus:
"26. There is nothing in Section 27 of the Evidence Act
which renders the statement of the accused inadmissible
if recovery of the articles was made from any place
which is "open or accessible to others". It is a fallacious
notion that when recovery of any incriminating article
was made from a place which is open or accessible to
others, it would vitiate the evidence under Section 27
of the Evidence Act. Any object can be concealed in
places which are open or accessible to others. For
example, if the article is buried on the main roadside or
if it is concealed beneath dry leaves lying on public
places or kept hidden in a public office, the article
would remain out of the visibility of others in normal
circumstances. Until such article is disinterred its hidden
state would remain unhampered. The person who hid it
alone knows where it is until he discloses that fact to
any other person. Hence the crucial question is not
whether the place was accessible to others or not but
whether it was ordinarily visible to others. If it is not,
then it is immaterial that the concealed place is
accessible to others.
xxx xxx xxx
28. In the present case, the fact discovered by the police
with the help of (1) the disclosure statements and (2)
the recovery of incriminating articles on the strength of
such statements is that it was the accused who
concealed those articles at the hidden places. It is
immaterial that such statement of the accused is
inculpatory because Section 27 of the Evidence Act
renders even such inculpatory statements given to a
police officer admissible in evidence by employing the
words: "Whether it amounts to confession or not".
(Emphasis by us)
107. The knife had been concealed in bushes in a place along side
a canal, certainly which place was known only to the person who
has concealed it there and could get it recovered.
108. There is, however, one material fact which would lend
support to the appellant's contention that the recovered knife could
not have been the weapon of offence. The forensic science report
extracted above would show that no human blood was detected as
present on the knife. It is in evidence that the deceased was
subjected to a vicious attack and inflicted with several knife blows.
As per the post mortem report, the first injury which was the
incised wound on the left side front of chest had entered the chest
cavity between 4th and 5th rib and had cut the left ventricule of the
heart. The second injury had entered the chest cavity through 4 th
inter costal and had cut the apex of the heart; the 4th injury had
entered the chest cavity through 5th intercostals space and had cut
the left ventricular of the heart. The 3rd injury noted by the doctor
consists of two injuries, one is skin to muscle deep and other had
entered the abdominal cavity and cut the stomach. The chest cavity
of the deceased was full of blood. There is no evidence that the
knife had been washed or cleaned after the murder. It is impossible
for a knife which had caused such deep and grievous injuries to not
be smothered in blood, at least to have traces thereof. The
recovered knife had not the least evidence of any samples of blood
on it. It is, therefore, impossible that the injuries were inflicted
with the knife in question.
109. We are supported in the conclusion which we have arrived at
by the pronouncement of the Supreme Court reported in 1997
Crime 714 Sita Ram v. State( Delhi Administration) wherein the
court had held as follows :
"(2) The prosecution case as revealed from the record,
is that Mahender Singh son of Ram Bilas Singh, who
hails from Village Locha, P.S. Gaighat, District
Mujaffarpur, Bihar and who works at Village Samaipur,
Delhi had a quarrel with one Ram Chander - Vakil over
said Mahender Singh kidnapping a girl; that Mahender
had threatened Ram Chander, to do away with him as
former was insulted by the latter in presence of the
Panchayat; that Ram Chander had come to Azad Pur,
Delhi at the place of his brother Mithilesh Singh since
the last 15 days in order to provide medical treatment to
his son at All India Institute of Medical Sciences, New
Delhi; that Ram Chander had come to the tea stall at
Railway Station, of Mithlesh at 12 noon on 14.12.1986,
accompanied by Sita Ram and one unknown person,
wherefrom, Ram Chander was taken by Sita Ram to
Samai Pur along with him; that during the night of
14/15.12.1986, Ram Chander was murdered and his
dead body was found in the house of Lachhman Mandal
and Narain Mandal; that Mithlesh Singh was informed
about the incident by one Ravindra whereupon Mithlesh
lodged FIR with P.S. Samai Pur, Delhi on 15.12.1986.
The offence was registered. On completion of usual
investigation, charge sheet came to be filed against this
appellant and two other accused persons, namely,
Lachhman Mandal and Narain Mandal with Mahender
Singh as P.O. Charge came to be framed against the
appellant, Lachhman Mandal and Narain Mandal for the
offence punishable u/s. 302/34 Indian Penal Code. The
accused denied the charge and claimed trial. The
prosecution, in order to bring guilt home to the accused,
adduced oral as well as documentary evidence. On
appreciation of evidence and the further statements
under Section 313 Criminal Procedure Code., the trial
court found the appellant Sita Ram guilty for the offence
charged and sentenced the appellant, as aforestated. The
two other accused persons, namely, Narain Mandal and
Lachhman Mandal were acquitted of the charges
levelled against them. It is this judgment of conviction
and sentence, which is assailed by the appellant/convict
Sita Ram in this appeal."
110. In view thereof, we agree with learned counsel for the
appellant that the finding of the trial judge that the recovered knife
Exh.P3 was the weapon of offence could not be so. This finding
has to be set aside and it is so held. However, this by itself can not
impact the outcome of the present appeal.
Result
111. In view of the above, the judgment of conviction dated 31st
August, 2000 passed by the trial judge in Sessions Case No. 3/97
arising out of FIR No. 466/95 registered by the police under
Section 302/307/308/324/147/148/149/34 of the IPC and Sections
25/54/59 of the Arms Act by the Police Station Patel Nagar and
order of sentence of the even date is upheld.
In the result, the appeals are found devoid of substance and,
therefore, dismissed.
112. The sentence awarded against the appellant-Mahender
Kumar in Crl.A.764/2000 was suspended by an order dated 22nd
July, 2002 and appellant-Naresh Kumar in Crl.A.540/2000 was
suspended by an order dated 14th March, 2005 pending hearing on
these appeals. They are now directed to surrender to custody
within 30 days of this judgment and undergo the punishment
awarded in this case. The learned trial court (or the successor court)
and the station house officer of the police station shall take suitable
steps to ensure compliance with these directions.
Copy of this judgment be made available to the appellants
forthwith and be sent to the Superintendent, Tihar Jail.
GITA MITTAL, J
R.K. GAUBA, J
DECEMBER 20, 2016/kr
