Delhi High Court
Rahul @ Bhuri vs State, Nct Of Delhi on 12 September, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 2nd August, 2017
Judgment Pronounced on: 12th September, 2017
+ CRL.A. 1702/2014
RAJ KUMAR @ LALA ..... Appellant
Through : Mr. Sheikh Israr Ahmad, Advocate
versus
STATE NCT OF DELHI ..... Respondent
Through : Ms. Radhika Kolluru, APP
+ CRL.A. 158/2015
RAHUL @ BHURI ..... Appellant
Through : Mr. Jitendra Sethi, Mr. Ambar
Tewari, Mr. Hemant Gulati and Ms.
Anshika Sethi, Advocates
versus
STATE, NCT OF DELHI ..... Respondent
Through : Ms. Radhika Kolluru, APP
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE CHANDER SHEKHAR
G.S.SISTANI, J.
1. Both the appeals arising out of a common judgment have been
argued together and are being disposed of by a common judgment.
2. Present appeals have been instituted under Section 374 of the Code
of Criminal Procedure, 1973 („Cr.P.C.‟) against the judgment dated
10.11.2014 and order on sentence dated 13.11.2014 passed by the
Additional Sessions Judge („Trial Court‟) in Sessions Case 08/2014
arising from FIR 17/2013 Police Station Ambedkar Nagar, by virtue
of which both the appellants have been convicted under Section
302/34 of the Indian Penal Code (hereinafter referred to as „IPC‟)
and sentenced to undergo simple imprisonment for life with a fine of
Rs.20,000/- each and in default of payment of fine, to further
undergo simple imprisonment for one year. The appellant Raj
Kumar @ Lala was also convicted under Section 27 of Arms Act,
1959 and was sentenced to undergo simple imprisonment for a
period of three years with a fine of Rs.10,000/- and in default of
payment of fine, to further undergo simple imprisonment for a period
of six months. Both the sentences awarded to the appellant Raj
Kumar @ Lala were ordered to run concurrently.
3. The present case pertains to the murder of one Rohit („deceased‟) at
the hands of the appellants and one Asif (declared juvenile in conflict
with law „JCL‟). Before the rival submissions of the learned counsel
of the appellants can be considered, we deem it appropriate to state
the case of the prosecution, as noticed by the Trial Court, which is as
under:
"1. DD No.51-A regarding stabbing of a person near the bus
stop of Bus Route No. 521, Sector 5, Ambedkar Nagar, was
received in Police Station Ambedkar Nagar on 14.01.2013
and the said DD was marked to ASI Mam Chand for
necessary action. After receiving the DD No.51- A, ASI Mam
Chand along with Ct. Ram Avtar reached near bus stand 521,
the road dividing C and D Block, Dakshin Puri, but could not
find any public witness there. Police officials came to know
that injured has been taken to hospital in PCR Van. In the
meanwhile, staff of the beat also reached the spot. ASI Mam
Chand left beat HC Ratan Lal and Ct. Vineet at the spot and
proceeded to Trauma Centre, AIIMS with HC Ram Avtar and
in the hospital collected the MLC of Rohit Gupta s/o Sh.
Rakesh Kumar Gupta, The injured was declared dead in the
hospital by the concerned Doctor and no public witness was
found at the hospital. ASI Mam Chand came at the spot and
found lot of blood there. No public witness was found at the
spot. Hence, an FIR u/s. 302 IPC, PS Ambedkar Nagar was
lodged and investigation was marked to the SHO PS
Ambedkar Nagar Inspector Abhay Singh Yadav, the then
SHO PS Ambedkar Nagar. The spot was got inspected by the
crime team, photographs were taken. Investigating Officer
prepared the site plan of the spot. Investigating Officer
collected the chappals of the deceased, earth control and
blood samples from the spot and got them sealed in sealed
pullanda and deposited the same in the police station.
Thereafter Himanshu, brother of the deceased, came to the
spot and Investigating Officer recorded the statement of
Himanshu. Himanshu in his statement u/s 161 Cr.PC stated
that he is running a dhaba at Bus Stand Route No. 521,
Dakshin Puri and his brother Rohit used to come to his
dhaba occasionally to assist him. On 14.01.2013, at about 11
pm when Himanshu and deceased Rohit were in the process
of closing the dhaba, accused Raj Kumar @ Lala, Rahul @
Bhuri and Asif, who were known to Himanshu came to the
dhaba and demanded food from Rohit. Rohit told them that
dhaba has been closed and food is not available. On hearing
this accused Raj Kumar and his associates started abusing
Rohit. Himanshu intervened and rescued his brother and
accused Raj Kumar @ Lala, Rahul @ Bhuri and Asif left the
dhaba. After sometime, Himanshu and Rohit closed the
dhaba and started going to their house. Himanshu was 20-25
steps ahead of Rohit, when all of a sudden Rohit cried and
when Himanshu turned back, he found that Raj Kumar, Rahul
and Asif were fighting with Rohit. Himanshu run [sic: ran] to
save his brother and found that accused Rahul @ Bhuri and
Asif have caught hold of Rohit and Raj Kumar @ Lala
attacked Rohit on his thigh with a knife a number of times.
When Himanshu cried for help, accused Raj Kumar @ lala
and Rahul @ Bhuri alongwith Asif (juvenile in-conflict
with law) ran away. Someone called 100 number.
Himanshu was terribly scared. After sometime, PCR Van
came to the spot and took Rohit to Trauma Centre. Himanshu
reached Trauma Centre after sometime and found that Rohit
was unable to speak and Rohit was declared dead by the
Doctor. Himanshu was highly perturbed and stayed outside
the hospital for one and half hour. After sometime, when
Himanshu became normal, he went to his house and from the
house he went to the spot. Himanshu specifically stated in his
statement u/s 161 Cr.PC that accused Raj Kumar, Rahul and
Asif (juvenile) have killed his brother in pursuance of a
conspiracy.
2. Thereafter, Investigating Officer searched for the accused
but the accused could not be found. The dead body was got
identified by relatives. On 17.01.2013, Investigating Officer
received a wireless message that three boys have been
apprehended in case FIR No.18/13 and one of those boys is
juvenile and those three boys have disclosed their
involvement in the present case. On receiving this
information, Investigating Officer along with his staff
reached big park at H-Block, Dakshin Puri and Inspector
Investigation presented the three boys to the Investigating
Officer and told him that these three boys have admitted their
involvement in the present case. The names of those boys
came to be known as Asif, Raj Kumar and Rahul. Asif was
found to be juvenile and separate proceedings were
conducted with respect to Asif as per the directions of the
Juvenile Justice Board. Accused Rahul @ Bhuri and Raj
Kumar @ Lala were interrogated by the Investigating Officer
and they were arrested in the present case. Accused Raj
Kumar got recovered a knife used in the commission of the
crime from the H-Block park, Dakshin Puri. The knife was
seized and kept in a pullanda. The place of incident was
identified by both the accused persons."
4. After completion of the investigation chargesheet was filed against
both the appellants. Charge under Section 302 read with Section 34
of IPC was framed against both the appellants. A charge under
Section 27 of Arms Act was also framed against the appellant Raj
Kumar. To bring home the guilt of the appellants, prosecution
examined 23 witnesses in all. The statement of the appellant Rahul
was recorded under Section 313 Cr.P.C wherein he pleaded
innocence and stated that he was picked up from his home and
falsely implicated in the present case. In his statement under Section
313 Cr.P.C., the appellant Raj Kumar stated that on 15.01.2013, he
had gone to Karkardooma Court Complex to attend the proceedings
of his case; his father was forced to call him to the Police Station and
after attending the case at Karkardooma Court, he went to the Police
Station where he was falsely implicated. The appellants examined
three witnesses in their defence.
5. The Trial Court found that the testimonies of PW-2 Himanshu and
PW-1 Sharwan Kumar coupled with the medical evidence if properly
appreciated, without taking into consideration the defects in the
investigation, it could safely be concluded that the
accused/appellants had committed the murder of the deceased and
convicted the appellants as noticed in paragraph 2 aforegoing.
6. Mr. Jitender Sethi, learned counsel appearing for the appellant Rahul
submits that the judgment of the Trial Court is based on surmises and
conjectures. The Trial Court has failed to take into consideration
that PW-2 Himanshu was in fact not an eyewitness as he was not
present at the time of the crime, which is evident from the fact that
PW-2 did not accompany his injured brother from the place of the
incident to the hospital. Moreover, his name does not find mentioned
in the MLC prepared by the doctor and further from the testimony of
PW-7 ASI Mam Chand, it has emerged that there was no eyewitness
at the spot. Elaborating his arguments further, Mr. Sethi contends
that the statement of PW-2 Himanshu who is real brother of the
deceased cannot be believed as having been present at the place of
the incident he would have tried to save his brother or at least made a
call to police officials or his own family members. It is, thus,
contended that the testimony of PW-2 is unreliable and cannot be
trusted. Reliance is placed on the judgments in the cases of State
(Govt. Of NCT of Delhi) v. Naresh & Anr, 2012 (2) JCC 830
(paragraph 8) and Balraj Singh v. The State of Punjab, 1976 Crl.
LJ 1471 (P&H) (paragraphs 13 and 20).
7. Relying on the testimony of PW-7 ASI Mam Chand, it is further
contended that this witness has deposed that he received a call at
11:50 PM on the intervening night of 14-15.01.2013 and thereafter
he came at the spot and found no eyewitness either at the spot or in
the hospital. Reliance was placed on the rukka to show even at that
stage no person was named and PW-2 appeared only around 03:00
AM. i.e. after three and half hours of the incident.
8. Mr. Sethi contends that a phone call was made to the Police by PW-1
Sharwan Kumar from his mobile phone No.9716078703 who is
running a flower shop near the place of the incident. This witness
has also testified that he had informed Himanshu (brother of the
deceased) about the incident. PW-1 also deposed that Himanshu
arrived at the spot within 5-7 minutes of the telephone call. It is also
contended that had Himanshu been at the spot there was no occasion
for PW-1 Sharwan Kumar to inform PW-2 Himanshu.
9. The attention of this Court has been drawn to the PCR form, wherein
the name of Himanshu also does not find mention though it is stated
that at 01:00 AM family members were present at the hospital but
how the deceased was stabbed was not known. This is in direct
contravention to the testimony of PW-2 that after the incident he
went home to get his family members while according to the PCR
form, his family members were already present at 01:00 AM at the
hospital.
10. Mr. Sethi, learned counsel for the appellant Rahul further goes on to
submit that PW-2 Himanshu being an eyewitness, the site plan
should have been prepared at his instance while the testimony of
PW-22 Insp. Abhay Singh would show that the site plan was
prepared by him at the instance of PW-7 ASI Mam Chand. It is
strenuously argued before us that PW-2 has been introduced as an
eyewitness which is evinced by a careful examination of serial
number of witnesses at the site plan, which would show that initially
PW-2 was not shown as a witness, but as a mere cover up his name
was added by renumbering the witnesses.
11. Learned counsel for the appellant submitted that on a careful
examination of the site plan placed on record would show that there
were three places where the incident took place; firstly, where the
deceased was stabbed; secondly, where the deceased was stabbed
again; and thirdly, where the deceased dropped while no such
description was given by PW-2, who claims to be an eyewitness,
which casts a serious doubt with regard to his presence. Even
otherwise, the case of prosecution and the testimony of PW-2 cannot
be believed as in case the appellant Rahul caught hold of the
deceased then there would not have been three distant places as
described in the site plan. He further submits that as per the
testimony of PW-2, the appellant Rahul did not stab the deceased.
12. It is also contended by learned counsel for the appellants that a copy
of the brief facts prepared on 15.01.2013 at 11:50 AM. by the
Investigating Officer and sent to the Doctor with a request to conduct
post-mortem does not show the name of either PW-2 Himanshu as an
eyewitness or the name of the appellants. Reliance is placed in the
case of Ghan Shyam & Ors. v. State, II (2007) DLT (CRL.) 54
(DB) (paragraphs 6 and 8).
13. It has also been urged that there are contradictions between the
statements of PW-2 Himanshu (brother of the deceased) and PW-7
ASI Mam Chand with regard to the recording of the statement of
PW-2. PW-7 deposed that when he came back at the spot, he
recorded the statement of PW-2 while PW-2 testified that his
statement was recorded at the hospital. In the statement of the
appellants under Section 313 Cr.P.C., a question was put to them
with regard to the recording of the statement at the Police Station.
No question was put for recording of the statement at the hospital or
at the place of the incident.
14. Additionally, Mr.Sethi relies upon Nankaunoo v. State of U.P.,
(2016) 3 SCC 317 (paragraph 13) in support of his arguments that
no case under Section 302 of IPC would be made out in the absence
of the opinion rendered by the doctor that the injury suffered by the
deceased was sufficient to cause death in the ordinary course of
nature. Reliance is also placed on the judgment in the case of
Balwant Singh v. The State, 1976 CLR Delhi 43 in support of his
contention that once the Court reaches the conclusion that the
investigation is tainted then the entire case of the prosecution would
become suspicious and open to serious challenge. In this case,
Mr.Sethi contends that the tampering with the names of the
witnesses on the site plan prepared along with the fact that no report
was sent to the Ilaka Magistrate and the apparent contradictions in
the testimony of PW-2 Himanshu who claims to be an eyewitness
would show that the entire case of the prosecution is tainted and
unreliable and only points towards the innocence of the appellants.
It is also apparent from the observation of the Trial Court that in this
case proper investigation was not done.
15. Mr.Sheikh Israr Ahmed, learned counsel appearing for the appellant
Raj Kumar, additionally contended that the testimony of PW-2
would show that he knew all the accused persons and appellant Raj
Kumar resides at a distance of 250-300 meters from the place of
incident and 30 meters from the dhaba of PW-2 Himanshu and
deceased and in case, PW-2 would have disclosed the names of the
appellants, then his house would have been raided, but no such raid
had taken place. The deceased and his brother were known to the
appellant Raj Kumar as they had been tenants for two years in the
house of appellant Raj Kumar and they would have raided the house
of appellant Raj Kumar within hours of the incident which was not
done.
16. Additionally, it is contended that reading of the testimony of PW-2
would show that no case under Section 302 IPC is made out for the
reason that there was no motive established. The incident took place
in the heat of moment, when the deceased had refused to serve food
to the appellants claiming that the dhaba had been closed.
17. It is also contended that the appellant Raj Kumar stabbed the
deceased not on a vital part of the body but only on the thigh. If
there was an intention to kill the deceased, he would have attacked
one of the vital parts of the body and not only on the thighs. The
post-mortem report and the opinion of the doctor does not state that
any blow which was inflicted on the deceased could have resulted in
his death.
18. Learned counsels for the appellants have also contended that the
recovery of the weapon is not reliable as the recovery was made
from an open public place and there was no public witness associated
with the recovery. Furthermore, the FSL report does not establish
that the death was caused with the same weapon.
19. Per contra, Ms.Kolluru, learned counsel for the State submits that
the presence of PW-2 Himanshu stands clearly established by the
testimony of PW-1 Sharwan Kumar that when he spoke to him on
telephone, he seemed to be highly perplexed. Reliance is also
placed on the testimony of PW-7 ASI Mam Chand to show that this
witness had also deposed that PW-2 seemed to be in a highly
perturbed state of mind when he came to the spot. Learned counsel
has laboured hard to establish the presence of PW-2 at the spot by
placing strong reliance on the MLC to show that the material
particulars which find mention in the MLC could only have been
provided by PW-2, who was none other than the younger brother of
the deceased. Furthermore, not only the parental name but also the
complete address has been provided which could not have been
provided by PW-20 ASI Rameshwar from the PCR van who brought
the injured to the hospital. Ms. Radhika further submits that the
PCR form would also show that initially some friends and relatives
were attempting to remove the deceased in a PCR, thus the presence
of PW-2 would stand established. Learned counsel also submits that
not only the presence of PW-2 is established at the time of the
incident, but even soon thereafter, which is evident upon a reading
of the testimonies of PW-7 ASI Mam Chand, PW-15 ASI Ratan Lal
as also PW-22 Inspector Abhey Singh, who have testified that at
3:00 AM, PW-2 was present at the place of incident. Learned
counsel submits that much should not be read into where the
statement of PW-2 was recorded as PW-2 in his testimony has stated
that after the incident, he went to the Hospital from where he went
to the place of the incident and was then taken to the Police Station
and in such a situation, his answer could have been misunderstood
and in any case no prejudice would have been caused to the
appellants herein.
20. Learned counsel also submits that there is no tampering of the site
plan. In fact, PW-22 has given a truthful account of the fact that the
site plan was prepared at the instance of PW-7, however, the final
report was prepared in the presence of PW-2 and it is for this reason
that there are three witnesses at the site plan, including PW-2 which
shows that the site plan was prepared at his pointing out. It is also
clarified by the learned counsel for the State that the case diary
reveals that attempts were made to trace the missing person who had
fled from the incident and thus, the submission made by the counsel
for the appellants that no raid was conducted is without any force.
21. Ms.Kolluru also contends that a knife was recovered at the instance
of the appellant Raj Kumar, which was buried in the soil and the
knife contained human blood, although no grouping could be
established. It is also contended that there could have been no
motive to implicate the appellants by the persons of the deceased
family at the cost of real culprit fleeing from the spot.
22. Ms.Kolluru further submits that it is well established that different
persons react in a different way in the same situation. To say that
the evidence of PW-2 Himanshu cannot be relied upon as his
reaction of not helping his brother or returning home to inform his
family is unusual cannot be accepted. Reliance is placed on the
judgment in the case of Leela Ram v. State of Haryana, (1999) 9
SCC 525 (paragraphs 7, 8, 10 and 11).
23. Learned counsel for State has also relied upon the judgment in the
case of Sukhdev Yadav and Others v. State of Bihar, (2001) 8 SCC
86 (paragraphs 12 to 16) in support of her contention that minor
contradictions and variations which do not go to the root of the
matter cannot affect the case of the prosecution. She has also relied
upon the judgment in the case of Baleshwar Mandal and Another
v. State of Bihar, (1997) 7 SCC 219 (paragraphs 4 and 5) to show
that minor lapses cannot be fatal to the case of the prosecution.
Reliance is placed on the judgments in the case of State of
Himachal Pradesh v. Jeet Singh, (1999) 4 SCC 370 (paragraphs 22
to 28); State of Maharashtra v. Bharat Fakira Dhiwar, (2002) 1
SCC 622 (paragraphs 21 and 22); Kulvinder Singh & Anr. v. State
of Haryana, AIR 2011 SC 1777 (paragraph 15); and Ramesh
Kumar alias Rameshwar v. State, 2010 CRL.L.J. 85 (paragraphs
13 to 16 and 25) with regard to weapon of offence having been
found in open place and the law relating thereto.
24. Mr.Sethi, learned counsel for the appellant Rahul contends in
rejoinder that merely because the MLC contains complete
particulars would and cannot lead to the conclusion that PW-2 was
present at the place when the incident took place or he stated that his
injured brother was taken to the PCR van, when PW-2 has himself
not testified that he provided the particulars of the injured person nor
PW-20 ASI Rameshwar has deposed that the brother of the injured
was present and that he had provided the particulars of the deceased.
Based on the testimony of PW-2, Mr. Sethi contends that this
witness deposed that he remained at the spot for 25 to 35 minutes
and since the offence took place around 11:35 PM, he could not
have reached at the Hospital at 12:25 AM when the MLC was
recorded. It is also contended that PW-13 Constable Rajbir, who
was on duty at the Trauma Centre has not testified that either PW-2
had approached him to inquire about the condition of the deceased
or provided details of the assailants. While relying upon the
judgment in the case of Surinder Kumar & Ors. v. State, 42 (1990)
DLT 1 (paragraph 10), Mr.Sethi highlighted that it is the duty of an
experienced police constable to enquire about the name of the
assailants if an eyewitness knows it and report the same. Mr. Sethi
also submits that merely because the details could have been
provided, that by itself would not be a ground to falsely implicate
the appellants as the prosecution has to show evidence to sustain the
order of conviction. Mr.Sethi submits that the presence of PW-2 at
the time of preparation of the MLC remains doubtful.
25. We have heard the learned counsel for the parties, considered their
rival submissions and given thoughtful consideration to the matter.
The prime prosecution witness remains the brother of the deceased
PW-2 Himanshu. Mr.Ahmad and Mr.Sethi have addressed
extensive arguments to impugn the presence of PW-2 at the locus in
quo, which can be summarized as under:
(i) The name of PW-2 does not find mention in the MLC
(Ex.PW-6/A);
(ii) PW-7 ASI Mam Chand has testified that there was no
eyewitness at the spot of incident or the hospital;
(iii) The conduct of PW-2 Himanshu is unnatural as he neither
attempted to save his brother, contact the police or his family
members;
(iv) Even in the rukka prepared at 2:25 AM, there is no name of
any eyewitness and thus, it is clear that PW-2 appeared only
around 3 AM;
(v) The factum that PW-1 had to call PW-2 and inform about the
incident proves the absence of PW-2;
(vi) The name of PW-2 is absent in the PCR Form, though it is
mentioned that the family members were present though how
the deceased was stabbed was unknown;
(vii) The site plan was not prepared at the instance of PW-2, but at
the instance of PW-7, and does not show where the
eyewitness was standing and the same has been tampered to
introduce PW-2;
(viii) There is a difference between the testimony of PW-2 and the
site plan;
(ix) Name of PW-2 Himanshu is also absent in the brief facts
prepared to be sent along with the application for conducting
postmortem;
(x) There are contradictions as to the place where the statement of
PW-2 was recorded; and
(xi) Had the assailants been named by PW-2 in the night itself,
there would have been an immediate raid in the house of
appellant Raj Kumar.
26. In order to appreciate the contentions raised by the learned counsel
for the appellants, it would be necessary to examine the testimonies
of the material witnesses.
27. PW-2 Himanshu (brother of the deceased) in his examination-in-
chief deposed that his family consists of parents and three brothers
including him. Rahul is the eldest brother, the deceased was the
middle one, while he is the youngest. On 14.01.2013 at about 11:00
PM, he alongwith his elder brother/deceased were present in their
dhaba and were closing down for the day. Three persons, being the
appellants and Asif (JCL), came to his dhaba and demanded food to
be served, to which his deceased brother declined and told that the
dhaba had closed for the day. They then started using abusive
language and grappled with the deceased. He intervened and
rescued his brother. Thereafter, all the three persons left. After 5-10
minutes of their leaving, they closed their shop and started walking
towards their home. The deceased was 22-25 paces behind PW-2.
Somewhere before the park, he heard the cries of his deceased
brother. On looking behind, he saw the appellant Raj Kumar
stabbing the deceased 4-5 times on his thighs. The other two
persons including appellant Rahul were holding his deceased
brother. He started shouting due to which the appellants and Asif
(JCL) fled away from the spot. He rushed towards the deceased,
who was bleeding extensively and had fallen infront of the shop of
PW-1 Sharwan. Thereafter, his neighbouring shopkeeper PW-1
Sharwan, who sells flowers, informed PCR officials. PCR vehicle
came and took the deceased to Trauma Centre. PW-2 followed
them to the Trauma Centre by an auto rickshaw. He was informed
by the doctor that his brother had died. He became highly perturbed
for 1-1½ hour. Thereafter, he returned home and informed his
parents as he was not carrying his phone at that time. He alongwith
his family returned to the hospital at about 2:30/3:00 AM. His
statement was recorded by the police in the hospital.
28. The witness was thoroughly cross-examined, where he stated that he
had left the dhaba first and was followed by the deceased. At the
time of the incident, there was no public witness around. He had
tried to lift his brother up. The deceased had moved in the direction
of their shop and had come near the flower shop of PW-1 Sharwan.
All other shops in the area were closed and only the flower shop of
PW-1 Sharwan was open, who was the first person to come near
them. The deceased had not stated anything to PW-1 at the time.
He remained with the deceased till the PCR vehicle reached the spot
and remained at the spot for about 25-30 minutes after PCR van left
the spot. Police officials had started investigation when he left for
the Trauma Centre. He further stated that he had first taken a lift on
motorcycle from a passerby till the corner, from where he had taken
an auto rickshaw. He categorically denied the suggestion that he
had any conversation with the police officials who had come to the
spot before he left for the Trauma Centre. Upon reaching the
Trauma Centre, he first saw his brother and on seeing him, became
perturbed and came out. He was unable to gather his senses for one
and a half hour. It was only later that the doctor had informed him
that his brother had died. At the stage, the PCR officials were still
in the hospital. His statement was recorded by the PCR officer
when he had returned to the hospital after visiting his house. From
the hospital, he was taken to the scene of incident and later to the
police station.
29. The only other public witness is PW-1 Sharwan Kumar who
deposed that he is engaged in the business of selling flowers and has
a shop opposite bus stop of route no.521 in the area of Dakshin Puri,
New Delhi. A dhaba is run close to his shop by two brothers,
namely Himanshu and Rahul along with their father who used to
come off and on. On 14.01.2013 at about 11-11.30 PM, he saw
deceased Rahul to have come and fallen in front of his flower shop
with bleeding injuries. He informed the police on 100 number from
his mobile 9716078703 and informed the Police officials. The
deceased was drenched in blood. Thereafter, Police reached the
spot. His statement was recorded by Police after a week or 10 days.
During cross-examination, he denied the suggestion that he had
disclosed the name of the deceased to the police officials. He had
known Rahul and his brother for over 2-2½ years prior to the
incident. He stated that he had left for home after the police had
arrived at the spot. On the day, he was neither questioned by the
police nor did he volunteer to make any statement to the police. He
had informed PW-2 Himanshu using the same mobile phone. PW-2
Himanshu had arrived at the spot within 5-7 minutes of the
telephone call. Thereafter, PW-1 left for his home. He had later
enquired from PW-2 Himanshu and learnt that the Rahul had died.
This conversation had been picked up by the elder brother Rohit and
had taken place at about 1:30 AM. He further stated that the PCR
officials had removed the injured/deceased to hospital in their
official vehicle and PW-2 Himanshu had followed them in some
other conveyance. He further stated that when he had called PW-2
Himanshu, he seemed perturbed and told that he was coming in his
direction only.
30. Since numerous contentions have been raised regarding the evidence
and the inconsistencies in the sequence of events, we proceed to
analyse the testimonies of the police witnesses. Now PW-1 has
testified that he had called 100 number from his mobile
9716078703. PW-18 L/Ct.Suman Lata deposed that she was posted
as Channel Operator in Police Control Room (PCR) at 23:33:23
hours, a call was received from the same number informing about a
stabbing incident at Dakshin Puri, Sector-V, near Baba Street/Tanki
or Bus Stand of Route No.521. The information was passed on to
the network/PCR van/Police Station at 23:35:15 hours. PCR Form
(Ex.PW-18/A) also reads "ek admi ko chaku mar diya hai" (one
person has been stabbed with a knife).
31. The information was received by PW-20 ASI Rameshwar, who was
posted at K-55, PCR Van, who deposed that at about 11:35 PM, a
call was received from the Control Room to the effect that one
person had been stabbed near Bus Stand of Bus Route No.521 near
Baba Street, Dakshin Puri. He along with his staff members reached
the spot in the PCR Van where one person had sustained stab
injuries on both thighs near groin region was lying there. They
removed him to Trauma Centre, AIIMS. They came to know that
the name of the injured was Rohit Gupta. During cross-
examination, he stated that besides him, there was one driver and
gunman in the PCR and no relative or friend of the injured was
present. He stated that he cannot comment if the relatives or friends
of the injured were present in the hospital as he did not know them.
He further stated that when they were removing the injured in the
van to the hospital, they were told by some person that his name was
Rohit Gupta and he was running a dhaba in the vicinity. PW-20 had
passed on the particulars at the time of preparation of MLC.
32. PW-13 Ct.Jagbir was posted in Police Station Safdarjung Enclave
and was on duty in the Trauma Centre, AIIMS. He deposed that
sometime after midnight, PCR Van No.K-55, of which PW-20 ASI
Rameshwar was the in-charge had brought an injured person, whose
name was probably Rakesh and again said Rohit. He was examined
by the doctor and declared brought dead. He had conveyed the
information to PS Ambedkar Nagar on telephone. In his cross-
examination, he stated that he had collected the name and address of
the deceased person from the MLC.
33. The story further unfolds in the testimonies of PW-7, PW-9 and
PW-15. PW-7 ASI Mam Chand deposed that on 14-15.01.2013 at
about 11:50 PM, he had received the information through DD 51-A
(Ex.PW-7/A), which was handed over by PW-15 HC Rattan Lal.
Thereafter, he along with PW-9 Ct.Ram Avtar reached the spot and
noticed that blood was lying on the road. The injured was removed
to the hospital. No eyewitness was available and in the meantime,
PW-15 HC Rattan Lal and Ct.Vineet also came there. On his
direction, PW-15 HC Rattan Lal and Ct.Vineet remained at the spot
in order to guard the same; PW-7 proceeded with PW-9 Ct.Ram
Avtar to the Trauma Centre, AIIMS. The deceased was found
admitted in an injured condition. He was declared dead by the
doctor. He did not find any eyewitness in the hospital. He received
the MLC and returned to the spot. But again, no eyewitness was
present there. Thereafter, PW-7 prepared the rukka on the above
information and handed it over to PW-9 Ct.Ram Avtar at 02:25 AM
on 15.01.2013 with a direction to take it to the police station for
getting FIR registered. PW-22 SHO Abhey Singh Yadav had also
arrived at the spot. The copy of the FIR was brought by PW-9
Ct.Ram Avtar at about 3 AM and handed over to the SHO. At that
stage, one public witness PW-2 Himanshu in highly perturbed state
came to the spot and told the facts about the incident to the SHO.
PW-2 disclosed that he is the brother of the deceased and narrated
the incident in detail also disclosing the names of the assailants. The
SHO (PW-22) then took over the investigation and prepared the site
plan, which had been signed by PW-7 as a witness.
34. During cross-examination, PW-7 stated that when he had received
DD 55-A, he was outside the police station and around the place of
Mahila Mandal. PW-15 HC Rattan Lal was with him when he went
to the spot. He had made enquiry to find out if anyone connected
with the victim was present in the hospital or not, but no one could
be found there. When he returned to the spot from the hospital, only
PW-15 HC Rattan Lal and Ct.Vineet were present at the spot. He
had arrived there at about 1:15 AM and prepared the rukka while
sitting on his motorcycle at the spot. No other police official or
public witness had arrived before the rukka was sent. PW-9 Ct.Ram
Avtar had returned to the spot after the SHO had arrived at the spot.
He further stated that he had not seen PW-2 Himanshu arriving and
therefore, could not comment on the mode of transportation used by
him; he went on to voluntarily state that he only saw him coming to
the SHO. He was unaware of the facts disclosed to the SHO by PW-
2 Himanshu. He further stated that he had assisted the SHO in
preparing the site plan (Ex.PW-7/C) by pointing out the place where
the blood had been found and chappals were lying.
35. PW-15 ASI Rattan Lal deposed that on 14.01.2013, he was posted
as Head Constable in police station Ambedkar Nagar and at 11:40
PM, ASI Liyakat Ali handed over DD 55-A to him. He took the DD
entry to the bus stand on Route 521 in Dakshin Puri, where he met
PW-7 ASI Mam Chand and PW-9 Ct.Ram Avtar and handed over
the DD entry to him. There was blood lying on the road at the said
place. PW-7 ASI Mam Chand made efforts but could not find any
eyewitness. It was learnt that the injured had been taken to Trauma
Centre, AIIMS by PCR vehicle. PW-7 ASI Mam Chand left him at
the spot and proceeded to Trauma Centre. He returned at about 1:15
AM on 15.01.2013 from the hospital. PW-7 ASI Mam Chand made
further enquiries, however he was unable to locate any eyewitness
even at that stage. Around the same time, PW-22 SHO Abhey
Singh had also arrived at the scene. The tehrir was sent by PW-7
ASI Mam Chand at about 2:25 AM. The SHO had inspected the
scene. The site plan (Ex.PW-7/C) was prepared at the instance of
PW-7 ASI Mam Chand. Around the time of proceedings, PW-9
Ct.Ram Avtar had returned with copy of FIR and the original tehrir.
During the proceedings at the spot, PW-2 Himanshu (brother of the
deceased) had also joined. SHO recorded his statement and
thereafter, efforts were made to trace the assailants, but no one could
be found on the day. During cross-examination, PW-15 stated that
he had reached the spot at about 11:50 PM and left the spot at about
3:45 AM the next morning. Public persons were standing at a small
distance from the place of occurance and upon enquiry by PW-7
ASI Mam Chand, they informed that one person had been stabbed
and after a call to 100, he has been taken to Trauma Centre. In his
presence, PW-7 ASI Mam Chand did not record the name and
address of those persons and voluntarily stated that in his presence,
PW-7 ASI Mam Chand was conducting enquiries from public
persons. PW-7 ASI Mam Chand left the spot at about 12:15 AM
and returned at about 1:15 AM. The SHO reached the spot after the
rukka was prepared and sent. In his presence, the SHO had recorded
the statement of one public witness, namely PW-2 Himanshu, who
had reached the spot. He stated that he did not know the mode of
transport used by PW-2 Himanshu and voluntarily stated that he had
seen him coming on foot. The site plan was prepared by the SHO in
his presence and he had signed the site plan.
36. PW-9 Ct.Ram Avtar had accompanied PW-7 ASI Mam Chand, who
deposed that on the intervening night of 14-15.01.2013, he was on
emergency duty with PW-7 ASI Mam Chand. After receiving DD
51-A, he had proceeded with PW-7 ASI Mam Chand to the spot.
Blood was lying there and no eyewitness was found. PW-15 HC
Rattan Lal and Ct.Vineet had also reached the spot. They were left
at the scene of incident, while PW-9 and PW-7 ASI Mam Chand
went to the Trauma Centre, AIIMS. One injured person named
Gupta was found in the hospital and he had been declared dead.
PW-7 ASI Mam Chand collected the MLC; no eyewitness was
present in the hospital. They returned to the spot. Again, no
eyewitness was found. PW-7 ASI Mam Chand had given him the
rukka at 2:25 AM on 15.01.2013, which was taken by him to the
police station where FIR was registered. PW-9 brought the copy of
FIR and rukka back to the spot. PW-22 Ins.Abhey Singh was also
present there and he took over the investigation. During cross-
examination, PW-9 stated that they had learnt from a public person
that the victim had been taken by PCR vehicle to Trauma Centre
AIIMS. He further stated that he did not know the particulars of the
public person. They stayed at the Trauma Centre from about an
hour and had reached there about 12:30 AM or so.
37. The investigation in the matter was undertaken by PW-22 Ins.Abhey
Singh, then SHO PS Ambedkar Nagar; who deposed that on the
intervening night of 14-15.01.2013 at about 1:15 AM, after finishing
his work, he had reached the place of occurrence involved in FIR
17/2013. PW-7 ASI Mam Chand, PW-15 HC Rattan Lal, Ct.Vineet
and PW-9 Ram Avtar were present at the place and PW-7 was in the
process of preparing his rukka. He informed the entire sequence of
events and sent his rukka through PW-9 Ram Avtar, on which the
FIR 17/2013 (Ex.PW-10/A) was registered. PW-22 further deposed
that he had prepared the site plan (Ex.PW-7/C) at the instance of
PW-7 ASI Mam Chand. PW-9 had returned with a copy of FIR and
handed over the same to him/SHO with the original tehrir. PW-2
Himanshu (brother of the deceased) had also come, whose statement
was recorded by PW-22. Then the witness tried to trace the
assailants.
38. PW-22 was thoroughly cross-examined, wherein he stated that on
15.01.2013 at 1:15 AM, he had received the information of the
incident. He returned at 5 AM after conducting the proceedings.
When he reached, PW-7 ASI Mam Chand was writing the rukka.
He did not find any public witness there. The distance between the
place of occurrence and the dhaba of the deceased is about 25-30
steps. When he had prepared the site plan PW-1 and PW-2 were not
present at the spot and immediately said that only one witness PW-2
Himanshu came at the spot. He voluntarily stated that PW-1 was
involved afterwards in the investigation. PW-2 Himanshu had come
to the spot after the exhibits were collected and had come at about 3
AM. The site plan (Ex.PW-7/C) was not prepared in the presence of
PW-2 Himanshu; again said that the final site plan was prepared in
the presence of PW-2 Himanshu. The site plan was signed by PW-2
Himanshu and PW-7 ASI Mam Chand. The site plan was prepared
on the pointing out of PW-7 ASI Mam Chand. No specific location
was indicated separately by PW-2 Himanshu. The exact location of
point A and B in the site plan (Ex.PW-7/C) were described to PW-
22 by PW-7 ASI Mam Chand and voluntarily stated that the same
was also confirmed by PW-2 Himanshu. He further stated that he
went for the search of the accused at different places. No public
person was accompanying him. He did not visit the house of the
accused in the course of the search.
39. We may also notice the medical evidence, which corroborates the
ocular testimony on record. Both the MLC (Ex.PW-6/A) and the
postmortem report (Ex.PW-17/A) show two stab wound on the inner
aspect of the right thigh of the deceased.
40. Though at first blush, the contentions of the learned counsel for
appellants seem persuasive, however, on a careful analysis of the
ocular evidence of the aforegoing witnesses, we find that a complete
sequence of the chain of events is established. On the fateful night
intervening 14-15.01.2013, the deceased and PW-2 Himanshu were
in the process of closing down their dhaba, when three persons
including the appellants and Asif (JCL) came and demanded food.
The deceased declined by informing that the dhaba had been closed
for the day. This did not please the accused, who started abusing
and grappling. The PW-2 Himanshu intervened and saved his elder
brother. Then they closed the shop and started walking towards
their home. PW-2 Himanshu was 22-25 paces ahead of the
deceased when the accused returned and stabbed the deceased. The
appellant Rahul and Asif (JCL) tried to hold the deceased, while the
appellant Raj Kumar gave two stab blows on his thighs. The shrieks
of his brother drew the attention of PW-2, who looked behind to
witness the incident. PW-2 Himanshu started shouting and rushed
towards the deceased, however, the accused were able to flee. The
deceased was extensively bleeding and fell infront of shop of PW-1
Sharwan. This was witnessed by PW-1 Sharwan, who called the
Police Control Room (PCR) at 23:33:23 (Ex.PW-18/A) from his
mobile number 9716078703 and informed that "ek admi ko chaku
mar diya hai" (one person has been stabbed with a knife).
41. We stop here to note as to which place the appellant was actually
stabbed. Learned counsel for the appellants have contended that the
site plan (Ex.PW-7/C) is in contradiction with the testimony of the
eyewitnesses. We do not find so. PW-2 Himanshu had specifically
stated in his cross-examination that his brother "had moved in the
direction of our [their] shop and had come near the shop of
Sharwan." Similarly, PW-1 Sharwan deposed that he saw the
deceased "to have come and fallen" infront of his shop. Neither
stated that the deceased was completely immobilized or was not
trying move from one spot to another. This is in consonance with
the site plan (Ex.PW-7/C). PW-7 ASI Mam Chand, PW-15 ASI
Rattan Lal and PW-22 Ins.Abhey Singh had consistently testified
that the site plan (Ex.PW-7/C) was prepared by PW-22 at the
instance/pointing out of PW-7 ASI Mam Chand, who had pointed
based on the blood and the chappal. The points „A‟ and „B‟ were
marked at the instance of PW-7. PW-2 Himanshu had come at
about 3 AM, when the site plan (Ex.PW-7/C) was being prepared
and had confirmed the points. His name was, accordingly, added
and probably because there was no space to add the name of a
witness at the bottom of the page, the name of PW-2 Himanshu was
added at serial number 1 after renumbering the witnesses. The same
can, by no means, lead to the conclusion that the document was
tampered as the same remains in consonance with the ocular
testimony. We have also gone through the photographs (Ex.PW-5/1
to Ex.PW-5/15) placed on record and particularly Ex.PW-5/10,
Ex.PW-5/11, Ex.PW-5/14 and Ex.PW-5/15, which clearly show the
presence of blood at points „A‟ and „B‟ infront of shop „Om Sai
Service‟ in the background in consonance with the site plan
(Ex.PW-7/C) and the scaled site plan (Ex.PW-3/A).
42. Coming back to the story unfolding from ocular evidence on record.
The deceased was stabbed on two occasions between point „A‟ and
„B‟ when appellant Rahul and Asif (JCL) tried to immobilize the
deceased and appellant Raj Kumar gave stab blows. As per Ex.PW-
3/A, the distance between points „A‟ and „B‟ is 730 cms (about 24
ft) and from „B‟ to „C‟, where the deceased finally collapsed infront
of shop of PW-1 Sharwan is 2490 cms (about 82 ft). We proceed to
the events after the stabbing. PW-1 Sharwan had called the Police
Control Room; which was inturn relayed to Kite 55 PCR Van under
the charge of PW-20 ASI Rameshwar. The PCR Van rushed to the
spot, where someone had informed PW-20 of the name of the
deceased. The deceased was immediately removed and taken to the
Trauma Centre, AIIMS, where the name was disclosed by PW-20.
Indubitably, the information sent by Kite 55 at about 1 AM states
that "ghar wale saath hain" (relatives are along) and the same
remains in clear contradiction with the ocular account, however it
cannot shake the otherwise consistent ocular account supported by
medical evidence. PW-20 has stated that no relative or friend of the
injured was present. The deceased was received at the Trauma
Centre by the PW-13 duty officer. The PCR Van reached the
Trauma Centre sometime after midnight and declared by the doctor
to be brought dead. The MLC (Ex.PW-6/A) was prepared wherein
the particulars of the deceased are given, though in the column of
„relative name‟, the name of Rameshwar, i.e. PW-20, is written.
This is once again in tune with the testimony of PW-20 that he, as
the in-charge of Kite 55, had taken the deceased to the Trauma
Centre.
43. The information was also relayed by the control room to the police
station, where DD 51-A was recorded and allotted to PW-7 ASI
Mam Chand. PW-15 HC Rattan Lal was sent to hand over the DD
entry to PW-7. Accordingly, PW-7 along with PW-9 reached the
spot where they were joined by PW-15 HC Rattan Lal and
Ct.Vineet. There was no eyewitness there. Upon coming to know
that the injured had been removed to the Trauma Centre, PW-7
proceeded with PW-9 Ct.Ram Avtar to the Trauma Centre, AIIMS
at about 12:15 AM. The deceased was found and he was declared
dead by the doctor. Again, no eyewitness was found. They returned
to the spot at about 1:15 AM and investigation ensued. Rukka was
prepared and sent through PW-9 Ct.Ram Avtar at about 2:25 AM
for the registration of FIR. In the meantime, PW-22 Ins.Abhey
Singh arrived at the spot and took over the investigation. At about 3
AM, PW-2 Himanshu came to the spot on foot and his statement
was recorded.
44. In this sequence of events, there was no question of the name of the
eyewitness, i.e. PW-2 Himanshu, or of the assailants being present
in the rukka or the PCR Form. The question then is where was PW-
2 Himanshu after witnessing the murder of his brother? The answer
is found in the testimony of PW-2 only. He had deposed that when
he had heard the cry for help of his brother, he had turned around to
witness the stabbing of the deceased. He started shouting and
rushed to his brother, however, the assailants ran away. He tried to
lift his brother. He became extremely perturbed and went into a
state of trance. PW-2 Himanshu waited till the PCR Van (Kite 55)
took his brother. His perplexed state did not allow him to approach
the police. Both PW-1 Sharwan and PW-7 ASI Mam Chand have
confirmed that they found PW-2 in a highly perturbed state. We
find no reason to disbelieve the same as it is not unusual for one to
get disturbed after witnessing the death of his own brother first
hand. After the PCR van left, PW-2 took a lift on motorcycle from a
passerby till the corner, from where he had taken an auto rickshaw.
He reached the Trauma Centre and was informed by the doctor
about the death of his brother. This is further corroborated by the
fact that the MLC (Ex.PW-6/A) contains the father‟s name and the
address of the deceased and such information, can only be tendered
by a relative of the deceased. A coordinate bench of this Court was
faced with a similar situation in Noor Mohd. v. State NCT of Delhi,
2012 Cri LJ 28: 2011 SCC OnLine Del 3604 wherein the appellant
had alleged that the brother of the deceased, an alleged eyewitness,
was unreliable as the MLC was silent about the name of the injured
and recorded that the police had brought the body. The same was
rejected by the Bench while observing as under:
"7. It is urged by learned counsel for Dalip that PW-3 could
not be believed because there was no corroborative material
in support of his assertion about having accompanied his
brother to the hospital. Reliance was placed upon the MLC
(Ex. PW-15/A), which is silent about the name of the injured;
besides it recorded that the police had taken the body.
Learned counsel argued that if indeed Rahisuddin had
witnessed the incident and had either accompanied the PCR
or had gone with it, there was no reason for the hospital
authorities to exclude the mention of his name. ...
...
11. As far as the appellant Dalip is concerned, the
submission made regarding the omission to mention
Rahisuddin in the MLC, in this Court's opinion, are
insubstantial. Often the relatives who accompany the injured
who is a victim of a crime and depose later in the
proceedings do not find mention in the medical documents,
such as the MLC. The reason most often explained for this
omission is by saying that the doctors or any other
paramedics who record the MLC are more concerned with
the treatment to be given to the injured at that moment rather
than noting the names of those who accompany him. This
Court notices that PW-3 is consistent in his version - even in
his cross-examination that he followed the injured
Moinuddin, who was taken in the PCR. This circumstance
itself affords an explanation because the MLC (Ex. PW-15/A)
records that the injured was taken to the hospital by PCR
Official ASI Rajender. It might well have been that when he
was admitted, PW-3 had not reached or having reached, was
searching for the place where his brother had been taken."
(Emphasis Supplied)
45. The details in the MLC, infact, show that PW-2 had approached the
doctor, though he missed the police officials. The knowledge of the
death of his brother, further worsened the mental condition of PW-2,
who came out from the Trauma Centre and lost senses for 1 and a
half hours. Since PW-2 had already left the Trauma Centre, there
was no question of him being found by the police officials (PW-15
or PW-9). It was only when he regained his senses did he return
home and came back with his family. Now, there is a contradiction
as to the place where the statement of PW-2 was recorded, but
considering the state of PW-2 Himanshu, not much can be made
from such a minor contradiction. Similarly, we do not find that the
inconsistency of PW-2 and PW-1 regarding the phone call and the
possession of mobile phone by PW-2 Himanshu is sufficient to
discredit their testimonies in toto, which otherwise are reliable and
consistent. Such inter-se discrepancies are normal and can be
attributed to errors of observation and lapses of memory [See Asha
v. State of Rajasthan, 1997 SCC (Cri) 712 (paragraph 9); Leela
Ram (Supra) (paragraphs 9, 10, 12 and 13); and Sukhdev Yadav
(Supra) (paragraphs 1 to 3)].
46. We also do not find any force in the submission of the learned
counsel branding the conduct of PW-2 as unnatural. Upon
witnessing the assault of his brother, PW-2 shouted and rushed for
his aid. Even tried to pick him. He then waited until the PCR Van
and then followed it in an autorickshaw. Merely because he did not
approach the police officials or his family and remained with his
brother cannot be termed to be unnatural. Natural love and affection
instinctively directs one to remain with his loved ones in need. If
upon knowing the death of the deceased, put him out of commission
for 1-1 ½ hours is again not improbable. On regaining
consciousness, he acted in a manner most prudent persons would do,
first approach his family and then the police. Even otherwise, it is
settled that there cannot be any fixed reaction expected of witnesses.
In Leela Ram (Supra), the Apex Court observed as under:
"11. The Court shall have to bear in mind that different
witnesses react differently under different situations: whereas
some become speechless, some start wailing while some
others run away from the scene and yet there are some who
may come forward with courage, conviction and belief that
the wrong should be remedied. As a matter of fact it depends
upon individuals and individuals. There cannot be any set
pattern or uniform rule of human reaction and to discard a
piece of evidence on the ground of his reaction not falling
within a set pattern is unproductive and a pedantic exercise."
47. The Supreme Court in State of U.P. v. Devendra Singh, (2004) 10
SCC 616 has observed as under:
"6. In view of the rival submissions, it has to be first seen
whether the prosecution has established its case. Strictly
speaking, the case is not of circumstantial evidence. Human
behaviour varies from person to person. Different people
behave and react differently in different situations. Human
behaviour depends upon the facts and circumstances of each
given case. How a person would react and behave in a
particular situation can never be predicted. Every person
who witnesses a serious crime reacts in his own way. Some
are stunned, become speechless and stand rooted to the spot.
Some become hysteric and start wailing. Some start shouting
for help. Others run away to keep themselves as far removed
from the spot as possible. Yet others rush to the rescue of the
victim, even going to the extent of counterattacking the
assailants. Some may remain tightlipped, overawed either on
account of the antecedents of the assailant or threats given by
him. Each one reacts in his special way even in similar
circumstances, leave alone, the varying nature depending
upon a variety of circumstances. There is no set rule of
natural reaction. To discard the evidence of a witness on the
ground that he did not react in any particular manner is to
appreciate evidence in a wholly unrealistic and
unimaginative way. (See Rana Partap v. State of
Haryana [(1983) 3 SCC 327 : 1983 SCC (Cri) 601] .)"
48. Recently, this very Court in Ram Surat v. State, Crl.A. 1236/2012
dated 25.08.2017 had repelled the submission of the appellant
therein that the conduct of the eyewitness was unnatural as he did
not run towards the place of occurrence nor attempted to stop the
accused and not even tried to catch hold of him, but rushed to his
house to call his wife, while observing as under:
"16. ...Even otherwise, the behaviour and the conduct of PW-
17 seems to be most natural and probable, it is natural that
every person who witnesses a crime or faces such a situation
behaves in a different manner. If there were 5 or 10 persons,
their narration of the incident and their conduct and
behaviour would be different from one another. ...
...
23. As per the appellant, the reaction of the main eye witness,
PW-17 was unnatural in the event of crime and hence he is a
planted witness. In contradiction to this, Criminal Courts
should not expect a set reaction from any eye witness on
seeing an incident like murder. If five persons witness one
incident there could be five different types of reactions from
each of them. It is neither a tutored impact nor a structured
reaction which the eye witness can make. Unless the reaction
demonstrated by an eye witness is so improbable or so
inconceivable from any human being pitted in such a
situation, it is unfair to dub his reactions as unnatural."
(Emphasis Supplied)
49. In the present case, the conduct of PW-2 Himanshu is not
improbable or inconceivable to such a degree to raise a doubt about
his presence. Nothing else has been shown to attribute any reason to
PW-2 to falsely depose against the appellants. No enmity has been
ascribed to him.
50. Learned counsel for the appellants had also contended that the
absence of the names of the eyewitness PW-2 and the assailants in
the brief facts/short summary contained in the application for
postmortem (Ex.PW-22/D) shows that even at 11:50 AM on
15.01.2013, the police was unaware of their identity and thus, PW-2
has been implanted in the case later on. We are unable to subscribe
to the view as it stands to simple logic that while preparing a short
summary for the doctor, the police officials would include the
details of the incident, i.e. the manner and location of the injuries
caused, and not the details of the persons involved therein.
Additionally, we have already found the testimony of PW-2
Himanshu to be trustworthy and supported by the testimony of
numerous other prosecution witnesses. No reliance can even be
placed on the judgment in Ghan Shyam (Supra) as therein the
Court had already detected the fabrication of evidence and delay in
reporting the matter which were coupled with the absence of the
names of the assailants in the inquest form and the application for
postmortem. Even further, the testimony of the alleged eyewitness
therein was not corroborated by any other piece of evidence.
51. As regards the final contention that if the names were disclosed by
PW-2 Himanshu in the night itself, then the house of appellant Raj
Kumar would have been immediately raided. Both PW-15 HC
Rattan Lal and PW-22 Ins.Abhey Singh have deposed that efforts
were made in the night itself to trace the assailants, but no one could
be found. At the same time, we do not think that the mere failure of
conducting a raid in the night can raise a doubt on the case of the
prosecution. Faulty investigation cannot be a ground to let offenders
go scot free. In the present case, the lacking investigation is writ
large by the fact that the statement of the person who made the PCR
Call, i.e. PW-1 Sharwan, was recorded after a considerable delay.
52. Even the judgments of the Punjab and Haryana High Court in the
case of Balraj Singh (Supra) and of a coordinate bench of this
Court in Naresh (Supra) do not come to the aid of the appellants.
In the former, the factual matrix therein was completely different,
the eyewitness therein, PW-8 Karam Singh, was found to be an
interested witness being the brother of the deceased as the incident
was allegedly owing to a family feud and his presence was doubted
as his contention of remaining concealed was patently false in the
face of the fact that the alleged assailant had been disarmed and
surrounded by many persons alleviating any scope of threat.
Similarly, in Naresh (Supra), the coordinate bench while dealing
with a leave to appeal against an order of acquittal, found the
presence of eyewitnesses doubtful as there was an inter se
contradiction and inconsistencies as well as qua the documents and
statement of Investigating Officer. Additionally, the conduct of the
witnesses, one being a constable, was found to be unnatural in not
intervening or assisting in removal of the injured; however, there is
a difference between what might be expected of a police constable
and a public witness. Even otherwise, we have already found that
the entire sequence of events narrated by all the prosecution
witnesses to be consistent with each other and the medical evidence.
Even the judgment in Surinder Kumar (Supra) does not help the
appellants as the proper chronology of events has been established
by ocular evidence.
53. There is yet another incriminating circumstance against the
appellants being the recovery of the weapon of offence, i.e. button
actuated knife (Ex.P-1), as the instance of appellant Raj Kumar.
PW-15 ASI Rattan Lal and PW-22 Ins.Abhey Singh have deposed
that on 17.01.2013, during the course of investigation of another FIR
18/2013, Asif (JCL) had pointed to the appellants herein as his
accomplices and thereafter, pursuant to his disclosure statements
(Ex.PW-15/A and Ex.PW-15/C), appellant Raj Kumar got the knife
Ex.P-1 recovered concealed under the earth (buried) from the corner
of Bada Park, H-Block, Dakshin Puri. This is in tune with the
testimony of PW-21 Ins.S.K. Sharma, the investigating officer in
FIR 18/2013.
54. The contentions raised by the learned counsel for the appellants is
twofold: first, the recovery was from an open public place and
second, there was no public witness. As regards the first, it is a
fictitious notion often urged before us, however, the test is not
whether the place of recovery was open or accessible, but whether it
was ordinarily visible. Recently, this very Bench in Dinesh Kumar
Mathur v. State, 2017 SCC OnLine Del 9809 had while relying
upon the recovery of a darati and blood stained clothes from a
polythene bag concealed amongst the roots of a bargad (banyan)
tree, had discussed numerous judgments of this Court and the
Supreme Court, which is extracted in extenso below:
"31. The second limb of the argument of Ms. Dubey is that
the recovery was from an open area visible to the naked eye
and hence, outside the contours of Section 27 of the Evidence
Act. In this regard, we may usefully refer to the judgment of
the Apex Court in State of H.P. v. Jeet Singh, (1999) 4 SCC
370 wherein recovery was effected from tobacco bushes,
heap of rubbish situated in the compound of the residence of
the accused and his cowshed and the High Court had
repelled the circumstance inter alia as recoveries made were
"open and accessible to others"; this was reversed by the
Supreme Court observing as under:
"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 in 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."
(Emphasis Supplied)
[See also Titu v. State, ILR (2007) 1 Del 990 (paragraphs 28
and 29)]
32. Similarly, the Supreme Court in State of Maharashtra v.
Bharat Fakira Dhiwar, (2002) 1 SCC 622 found the recovery
of a blood stained grinding stone from tall grass from a place
very close to the house of the accused/respondent not to be
from an open place as "[u]ntil they were disinterred, at
instance of Respondent, their hidden state had remained
unhampered."
33. In Ibrahim Musa Chauhan @ Baba Chauhan v. State of
Maharashtra, 2013 (3) SCALE 207 the Supreme Court found
the recovery of a plastic bag containing hand grenades from
a heap in which lay broken tiles was not from an open place.
The relevant portion reads as under:
"133. Undoubtedly, the appellant's disclosure statement
had been made before the police, as well as the panch
witness. The fact that he did not disclose the place where
the contraband had been hidden remains entirely
insignificant, for the reason that he had led the police
party to the said place, and that the said recovery had
been made at his behest. The open space from where the
recovery had been made though was accessible to
anybody, it must be remembered that the contraband had
been hidden, and that it was only after digging was done
at the place shown by the appellant, that such recovery
was made. Hence, it would have been impossible for a
normal person having access to the said place, to know
where the contraband goods were hidden."
(Emphasis Supplied)
34. In a recent judgment, a coordinate bench of this Court, of
which one of us (G.S. Sistani, J.) was a member, in Jite v.
State, MANU/DE/ 1791/2017 had repelled the submission
that the recovery of the weapon of offence, i.e. dagger, was
doubtful as being recovered from a park allowing access to
the public in general, by finding that as the dagger was
concealed in a heap of construction material and the same
was recovered on the very next day, it could not be said to
have been effectuated in an open and accessible place.
35. Coming to the case at hand, we find the recovery of the
blade of the darati to be reliable. The Investigation Officer
(PW-27) stated that the kabristan remains closed and not in
use and hence, it cannot be said that the area was open or
accessible. Be that as it may, all the three witnesses to the
recovery (PW-10, 21 and 27) have testified that the recovery
was effected from a polythene bag concealed amongst the
roots of a bargad (banyan) tree and only part of the
polythene was visible from outside. In such circumstances,
the recovery cannot be said to be from an open area visible
to the naked eye. As long as the polythene remained
disinterred, its hidden state continued and its recovery
remains inside the purview of Section 27 of the Evidence
Act."
55. The judgments relied upon by Ms.Kolluru are to the same effect and
we need not burden this judgment by extracting them as well.
Accordingly, the recovery of the knife (Ex.P-1) from the corner of
Bada Park cannot be doubted as the same was buried under the
ground. Until it remained disinterred, its hidden state continued and
the consequent recovery is within the purview of Section 27 of the
Evidence Act.
56. We are also unable to second limb of arguments of the arguments as
it is not mandatory, but only a rule of prudence that a public witness
should be associated at the time of recovery [State v. Vikas @ Bhola
& Anr., ILR (2013) 5 Del 4032 (paragraph 13)]. It is only when
other cause is shown to suspect the recovery that the same may be
discarded. A coordinate bench of this Court in Titu v. State, ILR
(2007) 1 Del 990 (paragraph 30) had observed that merely because
all the witnesses of recovery were police witnesses and no
independent public witness was joined for affecting the recovery
would not be fatal [See also Ramesh Kumar (Supra) (paragraph 25)
and Jite v. State, MANU/DE/1791/2017 (paragraph 27)].
Accordingly, the absence of a public witness cannot impeach the
veracity of the testimonies of PW-15, PW-21 and PW-22.
57. Further, the FSL in its report (Ex.PW-22/F) detected the presence of
human blood on the knife (Ex.P-1) (marked as Exhibit „7‟ in report).
Thus, the same also points towards the guilt of the appellants herein.
The failure of matching of blood group on serological analysis is of
no consequence.
58. Accordingly, in view of the ocular evidence duly supported by the
medical and forensic evidence and the recovery of the knife (Ex.P-1)
at the instance of appellant Raj Kumar, we find no infirmity in the
order of the Trial Court, so far the order of conviction is concerned.
59. For the sake of comprehensiveness, we may also add that having
regard to the notification dated 17.02.1979 issued under Section 4 of
the Arms Act and the dimensions of Ex.P-1 (Ex.PW-15/E and
Ex.PW-19/D), even the order of conviction under Section 27 of the
Arms Act cannot be faulted with.
60. The only question which remains is the applicability of Section 302?
We find that the present case falls under Exception 4 of Section 300
IPC, which reads as under:
"Exception 4.--Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the heat
of passion upon a sudden quarrel and without the offender
having taken undue advantage or acted in a cruel or unusual
manner.
Explanation.--It is immaterial in such cases which party
offers the provocation or commits the first assault."
61. A coordinate bench of this Court, of which one of us (G.S. Sistani,
J.) was member, in Kamaljeet v. State, MANU/DE/1752/2017
(paragraph 40) observed that "[t]o bring a case under the exception,
fourfold requirement must be satisfied: first, there must be a sudden
fight; second, absence of pre-meditation; third, the accused must
have been overcome with the heat of passion; and fourth, the
accused must not have taken undue advantage or acted in a cruel or
unusual manner."
62. In Sandhya Jadhav v. State of Maharashtra, (2006) 4 SCC 653 a
solitary knife blow was given to the deceased when he attempted to
intervene and separate the convicts trying to assault his uncle. The
Supreme Court converted the conviction to Section 304 Part I
observing as under:
"8. For bringing in operation of Exception 4 to Section 300
IPC, it has to be established that the act was committed
without premeditation, in a sudden fight in the heat of
passion upon a sudden quarrel without the offender having
taken undue advantage and not having acted in a cruel or
unusual manner.
9. The Fourth Exception to Section 300 IPC covers acts done
in a sudden fight. The said Exception deals with a case of
prosecution not covered by the First Exception, after which
its place would have been more appropriate. The Exception
is founded upon the same principle, for in both there is
absence of premeditation. But, while in the case of Exception
1 there is total deprivation of self-control, in case of
Exception 4, there is only that heat of passion which clouds
men's sober reason and urges them to deeds which they
would not otherwise do. There is provocation in Exception 4
as in Exception 1; but the injury done is not the direct
consequence of that provocation. In fact Exception 4 deals
with cases in which notwithstanding that a blow may have
been struck, or some provocation given in the origin of the
dispute or in whatever way the quarrel may have originated,
yet the subsequent conduct of both parties puts them in
respect of guilt upon equal footing. A "sudden fight" implies
mutual provocation and blows on each side. The homicide
committed is then clearly not traceable to unilateral
provocation, nor in such cases could the whole blame be
placed on one side. For if it were so, the Exception more
appropriately applicable would be Exception 1. There is no
previous deliberation or determination to fight. A fight
suddenly takes place, for which both parties are more or less
to be blamed. It may be that one of them starts it, but if the
other had not aggravated it by his own conduct it would not
have taken the serious turn it did. There is then mutual
provocation and aggravation, and it is difficult to apportion
the share of blame which attaches to each fighter. The help of
Exception 4 can be invoked if death is caused (a) without
premeditation; (b) in a sudden fight; (c) without the offender
having taken undue advantage or acted in a cruel or unusual
manner; and (d) the fight must have been with the person
killed. To bring a case within Exception 4 all the ingredients
mentioned in it must be found. It is to be noted that the
"fight" occurring in Exception 4 to Section 300 IPC is not
defined in IPC. It takes two to make a fight. Heat of passion
requires that there must be no time for the passions to cool
down and in this case, the parties have worked themselves
into a fury on account of the verbal altercation in the
beginning. A fight is a combat between two or more persons
whether with or without weapons. It is not possible to
enunciate any general rule as to what shall be deemed to be a
sudden quarrel. It is a question of fact and whether a quarrel
is sudden or not must necessarily depend upon the proved
facts of each case. For the application of Exception 4, it is
not sufficient to show that there was a sudden quarrel and
there was no premeditation. It must further be shown that the
offender has not taken undue advantage or acted in cruel or
unusual manner. The expression "undue advantage" as used
in the provision means "unfair advantage"."
(Emphasis Supplied)
[Also see Abhijeet Raj v. State (Govt. of NCT of Delhi),
MANU/DE/1264/2016 and Jagtar Singh v. State of Delhi, 190
(2012) DLT 445]
63. In the present case, a tiff started over the petty issue of non-serving
of food by the deceased. This erupted into a sudden fight, which
was pacified by PW-2 Himanshu. Thereafter, the deceased and PW-
2 closed their dhaba and within a couple of minutes, the appellants
and Asif (JCL) returned and appellant Raj Kumar stabbed the
deceased while the other two held him. There was no cooling off
period and the tempers continued to run high [See Jite (Supra)
(paragraphs 38-43) and Arjun v. The State (Govt. of NCT of Delhi),
Crl.A. 983/2015 dated 14.07.2017 (paragraph 35)]. Thus, it is clear
that the incident occurred during the course of a sudden fight in the
heat of passion. The situs of the stab injuries, despite the assailants
having ample of opportunity to strike at some other vital portion,
shows that there was no premeditation. Finally, there is nothing to
show that the appellants had acted in a cruel or unusual manner. All
the essentials of Exception 4 stand satisfied and the conviction must
be converted. Having regard to the injuries on the body of the
deceased and the weapon of offence, it cannot be said that the
appellant intended to cause such bodily injury as was likely to cause
death [Ashok Kumar v. State, MANU/DE/1135/2009 (paragraphs
9-11)]. Accordingly, the conviction of the appellant is modified
from Section 302 to one under Section 304 Part II of the Indian
Penal Code.
64. We had also called for the fresh nominal rolls of the appellants, as
per which, appellant Raj Kumar has undergone about 5 years 5
months‟ imprisonment including remission, while appellant Rahul
has undergone 5 years 1 month imprisonment including remission.
Having regard to the culpability of the appellants, we are of the view
that the ends of justice would be met if the appellants are sentenced
to imprisonment for seven and a half years under Section 304 Part
II. The order of the Trial Court with regard to fine under Section
302 shall be read as for one under Section 304 Part II and remains
the same.
65. Consequently, the appeals are allowed in part, the conviction and
order on sentence recorded by the Trial Court is modified to the
extent indicated hereinabove.
66. The appeals stand disposed of.
67. Trial Court record be returned along with copy of this judgment.
68. Copy of this judgment also be sent to the concerned Jail
Superintendent for updating the jail record.
G. S. SISTANI, J.
CHANDER SHEKHAR, J.
th
SEPTEMBER 12 2017
// b/pst
