Delhi High Court
Manoj & Anr. vs State (Nct Of Delhi) on 11 April, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 822/2002 & CRL.M.A.2996/2003
Reserved on: 22nd March 2018
Decided on: 11th April 2018
MANOJ & ANR. ..... Appellants
Through: Mr. Vikram Singh Panwar and Mr.
Vikas Walia, Advocates.
Versus
STATE (NCT OF DELHI) ..... Respondents
Through: Mr. Amit Chadha, APP for State.
With
+ CRL.A. 836/2002
RAM NIWAS & ORS. ..... Appellants
Through: Mr. Ramesh Gupta, Sr.Advocate with
Mr. Bharat Sharma, Advocates for
appellant no.1
Mr. Manoj Kumar Ohri, Sr. Advocate
with Mr. Varun Tyagi, Mr. Bharat
Gupta, Mr. Nawab Singh Jaglan, Mr.
Rajeev Ranjan Raj, Mr. Abhimanyu
Singh, Mr. Vishesh Chauhan and Mr.
Anuj Kapoor, Advocates for
Appellant Nos. 3 and 4.
Versus
STATE OF NCT OF DELHI ..... Respondent
CRL.A Nos. 822/2002, 836/2002, 929/2002 & 937/2002 Page 1 of 34
Through: Mr. Amit Chadha, APP for State.
With
+ CRL.A. 929/2002
SURANJAN SINGH ..... Appellant
Through: Mr. Vikram Singh Panwar and Mr.
Vikas Walia, Advocates.
Versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Amit Chadha, APP for State with
Mr. Amarjit Singh (Retired ACP) & SI Karamvir.
And
+ CRL.A. 937/2002
MANJEET SINGH ..... Appellant
Through: Mr. Ramesh Gupta, Sr. Advocate
with Mr. Bharat Sharma, Advocates.
Versus
STATE (NCT OF DELHI) ..... Respondents
Through: Mr. Amit Chadha, APP for State.
CORAM: JUSTICE S.MURALIDHAR
JUSTICE I.S. MEHTA
JUDGMENT
Dr. S. Muralidhar, J.:
Introduction
1. These four appeals are directed against common judgment dated
26th September 2002 passed by the learned Additional Sessions Judge, Delhi
in Sessions Case No.36/2000 arising out of FIR No.379/1996 registered at
Police Station („PS‟) Narela, convicting the Appellants Manjeet Singh (A1),
Suranjan Singh (A2), Manoj (A3), Jasbir (A4), Mahesh (A5), Gulab (A6),
Ram Niwas (A7) and Satpal (A8) of the offences under Sections 452, 147,
148, and 302/149 IPC. Manjeet Singh (A1) was also held guilty for the
offence punishable under Section 25 Arms Act.
2. These appeals are also directed against order dated 28 th September 2002
whereby for the offence under Section 302 read with Section 149 IPC, each
of the accused was sentenced to undergo rigorous imprisonment (RI) for life
and to pay a fine of Rs.10,000/- each and in default of payment of fine, to
undergo further RI for 10 months. For each of the offences under Sections
147 and 148 IPC, each of them was sentenced to undergo RI for one year
each and to pay a fine of Rs.1,000/- each and in default of payment of fine,
to further undergo RI for one month. For the offence under Section 452 IPC,
each of the Appellants were sentenced to undergo RI for three years and to
pay a fine of Rs.2,000/- each and in default of payment of fine, to further
undergo RI for two months each. Manjeet Singh (A1) was additionally
sentenced under Section 25 Arms Act to undergo RI for two years and to
pay a fine of Rs.2,000/- and in default of payment of fine to further undergo
RI for two months. All sentences were directed to run concurrently.
3. It must be mentioned at the outset that apart from the aforementioned
eight accused, one more accused, i.e. Ganeshi, the father of Mahesh (A5)
and Ram Niwas (A7), was also arrayed as an accused and sent up for trial.
However, he expired during the pendency of the trial. The tenth accused was
Ajeet (Juvenile in Conflict with the Law (JCL) at the time of the offence).
The trial against Ajeet (JCL) was separated out and took place before the
Juvenile Justice Board (JJB). The Court is informed that Ajeet was
ultimately acquitted by the JJB.
Charges
4. The charges framed against all the nine accused were that on 16th
September 1996 at around 6:30 pm at Village Bawana they formed an
unlawful assembly with a view to preventing Vijay (PW-9) and his family
members from appearing and pursuing the criminal case which was pending
trial in which PW-9 was the injured; that at the time of being members of the
unlawful assembly, they were armed with deadly weapons thereby
committing offence punishable under Section 147 and 148 IPC. The third
charge was that pursuant to the common object of the unlawful assembly,
the nine accused committed house trespass at House No.433, Village
Bawana thereby committing an offence under Section 149 IPC. The fourth
charge was that pursuant to the common object of unlawful assembly, they
committed the murder of Sunil @ Pintoo („the deceased‟) thereby
committing an offence punishable under Section 302 read with Section 149
IPC. A separate charge was framed against A1 for possessing a knife in
contravention of the Arms Act thereby committing an offence punishable
under Section 25 Arms Act.
5. During the pendency of the present appeals, Mahesh (A5) expired. The
present appeals are by seven of the accused i.e. Manoj (A3)
(Crl.A.No.822/2002), Suranjan Singh (A2) (Crl.A.No.929/2002), Manjeet
Singh (A1) (Crl.A.937/2002) and Ram Niwas (A7), Satpal (A8), Jasbir (A4)
and Gulab (A6) (Crl.A.No.836/2002).
Background
6. The background to the present case was that there was an earlier incident
in 1994 in which Manoj (A3), Suranjan (A2), and Mahesh (A5) had a
quarrel with Vijay (PW-9), the son of Vidya (PW-3), the wife of Om
Prakash (PW-6). Vijay‟s elder brother was Sunil (the deceased). In the
quarrel, Vijay had received injuries and an FIR was registered against A2,
A3 and A5 under Section 308 read with Section 34 IPC. A charge sheet had
been filed and the trial was in progress in the said case. On account of the
said incident, relations between the families of PW-6 and PW-3 on the one
hand and all the accused on the other, became strained.
7. At this stage, it is necessary to refer to the relationship between the parties
as they all have a common ancestor. One Ratan had four sons: Chand,
Ganeshi (originally arrayed as the first accused and who died during the
pendency of the trial), Surajmal, and Hukmi. Gulab (A6), Ram Niwas (A7),
Jasbir (A4), Rajender and Naresh were the five sons of Ganeshi. Satpal (A8)
was the son of Gulab Singh (A6). Manjeet (A1) and Ajeet (JCL) were the
sons of Rajender. Therefore, Manjeet (A1), Satpal (A8), Gulab (A6), Ram
Niwas (A7) and Jasbir (A4) and Ajeet (JCL) belong to the Ganeshi branch
of the family.
8. Three of the accused belong to the Hukmi Branch. Rameshwar and Jai
Prakash were the sons of Hukmi. Suranjan (A2) and Mahesh (A5) were the
sons of Rameshwar. Manoj (A3) was the son of Jai Prakash. The
complainant party in the present case belonged to the Surajmal Branch. Om
Prakash (PW-6) and his brother, Shivraj (PW-4), are the sons of Surajmal.
Sunil (the deceased) and Vijay (PW-9) are the sons of Om Prakash. The
other inter relation is that Om Prakash‟s wife, Vidya (PW-3), and the mother
of Manjeet (A1) (wife of Rajender) are real sisters.
9. It could safely be said, therefore, that while the complainant party belongs
to the Surajmal branch, the accused belong to the Ganeshi and Hukmi
branches.
The incident
10. The incident is stated to have taken place at 6:30 pm on
16th September 1996. According to the prosecution, all the accused persons
arrived at House No.433, Village Bawana, Delhi which was the house of
Om Prakash (PW-6). While Manjeet (A1) and Suranjan (A2) were stated to
be having knives in their hands, Gulab (A6) and Satpal (A8) had rods.
Mahesh (A5) had a lathi. Manoj (A3), Ajeet, Jasbir (A4) along with Ganeshi
(since deceased) and Ram Niwas (A7) are stated to have entered the house
of PW-6. Gulab (A6) purportedly exhorted that they should be killed so that
they may not be able to attend the Court proceedings scheduled for the
following day.
11. Consequent to this, Manjeet (A1) and Suranjan (A2) are stated to have
attacked the deceased with a knife while Mahesh (A5), Gulab (A6), Satpal
(A8) attacked him with rods and lathis as a result of which the deceased fell
to the ground. It is then stated that Manoj (A3) and Jasbir (A4) caught hold
of his feet and stated that Sunil should not remain alive today. Thereafter, all
the persons started assaulting the deceased.
12. Upon this, Om Prakash (PW-6), his wife Vidya (PW-3), his son Vijay
(PW-9), and his nephew Sanjay tried to save Sunil. Seeing this Ganeshi
(since deceased), Ajeet and Ram Niwas (A7) are stated to have caught hold
of PW-6, PW-3 and PW-9 and began assaulting them. Ram Niwas (A7) is
then stated to have snatched the earrings from the ears of Vidya (PW-3).
Ganeshi, Ajeet and Ram Niwas (A7) are stated to have loudly told the other
co-accused persons to kill Sunil as he claimed to be a dada. In the
meanwhile, Anil Rana (PW-13) and certain other persons of the mohalla
came there and all the assailants ran away from the spot.
13. The Court is informed that of the aforementioned seven accused who are
Appellants (with Mahesh (A5) having expired), six of them surrendered of
their own accord and only Suranjan was arrested by the police.
14. Shivraj (PW-4), who happened to be the brother of Om Prakash (PW-6)
and the uncle of the deceased Sunil and the injured eye witness Vijay (PW-
9), was at the relevant time, serving in the Delhi Police as Assistant Sub
Inspector („ASI‟). PW-4 received information that the deceased had a
quarrel with Manjeet (A1) and Ajeet (who was a juvenile at the time of the
occurrence) and had been taken in an injured condition to Jaipur Golden
Hospital. When PW-4 reached the hospital, the deceased‟s body had already
been taken to mortuary so he proceeded to the house of PW-6 and found the
SHO lifting the blood from the floor of the courtyard. In his presence, the
bloodstained earth and earth control was also taken. One brick soaked in
blood was also taken out from the floor along with a plain brick.
15. According to PW-4, there was one charpai (cot) which was blood
soaked on the right hand side. This was also seized. He further stated that
after all the parcels were sealed, the seal was handed over to him.
Thereafter, along with the SHO PW-4 reached the mortuary at Jaipur
Golden Hospital where he and PW-6 identified the dead body of Sunil. In
other words, for all of the seizures, it was PW-4 who was the witness.
Initial information of the occurrence
16. As regards the occurrence, the first information that was given to the
Police Control Room („PCR‟) (Ex.PX) was to the effect that Sunil had been
stabbed by his chacha and the sons of his tau, who had then fled. The
location of the scene of crime is shown as "Bawana Panchayat Ghar Ke
Pass" and the information was that "ladke ko chaku mar diye; serious
haalat". This was recorded at 6.56 pm on 16 th September 1996. The
information about the name of the deceased and who had stabbed him was
recorded at 7.22 pm as reported by the police van which reached the spot.
There was no indication at this point in time that the offence took place
inside a house. There was no name of any informant.
17. DD No.24 dated 16th September 1996 at Police Post („PP‟) Bawana also
recorded that at 7.35 pm a message was received that near the Panchayat
Ghar at Bawana, one boy had been attacked with the knife. The criminal law
process was set in motion on the aforementioned information given to the
police.
MLC of the deceased
18. Inspector Amarjit Singh (PW-18) was posted as SHO of PS Narela. On
receipt of the information, he went to the spot. He came to know that the
deceased had been removed to the Jaipur Golden Hospital and he then
proceeded there where he collected the MLC of the deceased. This MLC
(Ex.PW-27/A) showed that the deceased had been brought to the hospital at
7.30 pm. It was noted "alleged fight at residence and sustained stab wound
in left scapular region". It was further noted that the "patient had been
brought dead". The person accompanied was shown as Pawan Kumar Tyagi
(PW-8). There was no noting of the injuries on this document.
Post-mortem examination
19. The post-mortem examination of the deceased was conducted by Dr.
Ashok Jaiswal (PW-10). He noticed the following external injuries:
"External injuries:
1. Incised stab wound obliquely placed on left side back 4.5
cm below and 1.5 cm lateral to posterior auxiliary-line of
size 2.2 cm x 1 cm lower angle being, acutely cut.
2. Bruise on dorsum of nose ½" x ¼".
3. Bruise on right shoulder post-lateral aspect 2" x 1".
4. Abrasion on right ear upper helix ½" x 1/2".
5. Haematoma 2" x 1½" on right occipito parietal region.
6. Bruise on right super-scapular region 2" x 1½".
7. Abrasion on right below post lateral aspect ½" x ½".
There was no other external injury."
20. The internal examination revealed that there was blood under the scalp
tissue on the right occipito parietal region. The scalp bone was intact and the
brain matter pale, otherwise nothing abnormal detected. On exploring injury
no.1, it was found to be "communicating with the left chest cavity from
behind through sixth space directed downward, inward and medially cutting
across soft tissues and entered into left lung lower lobe post-laterally
through and through and entered into the heart from behind. The depth from
surface was 11", left chest cavity was full of free blood".
21. The opinion as to the cause of death given by PW-10 was as under:
"1. All injuries were ante mortem in nature.
2. Injury no.1 was caused by sharp edged weapon.
3. Injuries No.2,,4,5,6 and 7 were caused by blunt object /
force/ fall/ friction against hard rough surface.
4. Death was due to haemorrhagic shock consequent to
injury no.1.
5. Injury no.1 was sufficient to cause death in ordinary
course of nature."
22. Later, when the weapon recovered at the instance of A-1 was shown to
him, PW-10 confirmed that injury no.1 was possible by the said weapon.
That the death of Sunil was homicidal was, therefore, clearly established by
the prosecution.
Arrests and recovery
23. On 18th September 1996, Ganeshi was arrested. On 21st September 1996,
Manjeet (A1) and Suranjan (A2) were arrested. Manjeet is stated to have
given a disclosure statement and got recovered a knife from underneath a
brick in the bushes opposite the house of Sher Singh at the Harijan Basti at
Bawana.
24. In his cross-examination, PW-18 confirmed that the FIR had been
registered only on 17th September 1996 under Section 302/34 IPC. It appears
that the FIR had been received by the Magistrate only at 10.30 am on
17th September 1996. PW-18 was unable to explain the delay. He stated,
"The special messenger can only explain as to why so much time was taken
to deliver the special report but the distance was also about 40 km. We
provide motorcycles to such police officials". He confirmed that Manjeet
(A1) had surrendered in the Court and that there was no public witness to his
disclosure statement. The knife was recovered only on 21st September 1996.
25. Inspector S.M. Dagger (PW-19) was posted in the District Crime Cell,
North West. On 1st October 1996, the investigation of the case was entrusted
to him. Two days thereafter, on 3rd October 1996, he arrested Mahesh (A5),
Manoj (A3), and Jasbir (A4), all of whom surrendered in the Tis Hazari
Court premises. They were produced from judicial custody. Police custody
remand was obtained.
26. According to PW-19, A5 offered to get the lathi used by him recovered
from the plot of A1. It was recovered on 5th October 1996. On 7th October
1996, Ajeet (minor), Gulab (A6), Satpal (A8) and Ram Niwas (A7)
surrendered in Tis Hazari Court and were arrested. It is stated that Gulab
(A6) and Satpal (A8) got recovered from the roof of their tube-well, the
respective iron rods used by them. These were taken into possession.
Preparation of site plans
27. The initial rough site plan (without scale) (Ex.PW-18/D) was prepared
by PW-18. The rough site plan depicts the common street of Village Bawana
with House No.433, the house of Naresh, son of Ganeshi, and the house of
Ramey, son of Dhanwa, on one side of the street and the house of Arjun, son
of Prithvi, and the house of Sabey Jat on the other. There were six alphabets
pointing out different spots inside House No.433. „A‟ was the spot where
Sunil was killed. „B‟ was the spot where Om Prakash (PW-6) was stopped.
„C‟ was the spot where Vidya (PW-3) was stopped. „D‟ was the spot where
Sanjay (PW-14) was stopped. „E‟ was the spot where Vijay (PW-9) was
stopped and „F‟ was the spot where Rakhi (PW-5), the wife of the deceased
Sunil, was shown to be standing. However, when this is compared with the
scaled site plan, certain other features which were not present in the rough
site plan emerged.
28. On 8th November 1996, PW-19 took the draftsman to the spot and, at the
instance of Om Prakash (PW-6), he took rough notes and measurements. On
15th November 1996, the scaled site plan (Ex.PW-1/A) was prepared. The
scaled site plan has seven spots marked from „A‟ to „G‟. „A‟ shows the place
on the cot where the accused persons attacked Sunil with knives, iron rods
and lathis and where blood was lying. „B‟ was the place beneath the cot
where the blood was lying and from where the blood/bloodstained earth and
brick were taken by the IO. „C‟ was the place where PW-6 was stopped from
rescuing the deceased. „D‟ was the place where PW-3 was stopped. „E‟ was
the spot where PW-9 was stopped. „F‟ was where PW-14 was stopped. „G‟
was the place where PW-5 witnessed the occurrence. The presence of two
cots is shown in the scaled site plan although it was absent in the rough site
plan.
The trial
29. Upon the conclusion of the investigation, the charge-sheet was filed and
by an order dated 21st January 1998, the charges as noted above were framed
against the accused by the learned trial Court.
30. Twenty-eight witnesses were examined for the prosecution. In their
respective statements under Section 313 Code of Criminal Procedure („Cr
PC‟), each of the accused denied the circumstances put to them and claimed
to have been falsely implicated. No defence evidence was led.
The impugned judgment
31. In the impugned judgment dated 26 th September 2002, the learned trial
Court came to the following conclusions:
(i) The eye witness testimony of PW-3 was truthful and reliable and was
corroborated by Rakhi (PW-5); Om Prakash (PW-6) and Vijay (PW-
9). Nothing could be elicited in their respective cross-examinations
which could impeach their credibility.
(ii) The occurrence took place inside the house of deceased Sunil. All the
above witnesses, although closely related to the deceased, were
natural witnesses. Their evidence is corroborated by the medical
evidence.
(iii) The death of Sunil was homicidal and the fatal injury was an incised
wound which could be caused by the knife recovered at the instance
of A1.
(iv) On 17th September 1996, the case in which A2, A5 and A3 were
facing trial for causing injuries to Vijay (PW-9) was listed. The
enmity between the parties which was as a result of this case provided
the motive for the commission of the crime.
(v) The recovery of weapon of offence at the instance of A1 was proved
by the prosecution. PW-10 confirmed that the fatal injury could have
been caused by that knife. The police witnesses, i.e. SI Dhan Singh
(PW-12) and Inspector Amarjit Singh (PW-18), have proved the
recovery of the knife and there was nothing in their cross-examination
which could impeach their credibility.
(vi) The FSL report confirmed the presence of human blood on the knife.
(vii) The recovery of lathis and iron rods used in the commission of the
offence was also proved.
(viii) The FIR was recorded at the earliest opportunity and was free of
embellishments.
(ix) The ocular evidence in the present case was corroborated by the
medical evidence.
32. For all of the aforementioned reasons, it was held that the prosecution
had proved its case against the accused beyond reasonable doubt.
33. This is a case based on direct evidence and, therefore, the version of the
eye witnesses becomes critical. As already noticed, the parties are all closely
related and have a common ancestor. The complainant party belongs to the
Surajmal Branch where as the accused parties belong to both the Ganeshi
and Hukmi Branches. Undoubtedly, since the parties are related also and
there is a previous enmity, the eye witnesses from the complainant branch
have to be treated as interested witnesses.
Lack of 'common object'
34. The principal charge against the accused persons is for coming together
in unlawful assembly for an unlawful common object punishable under
Sections 147, 148 and 149 IPC. In Charan Singh v. State of U.P., (2004) 4
SCC 205, the Supreme Court laid down what constitutes a common object
for the purposes of Section 149 IPC:
"The crucial question to determine is whether the assembly
consisted of five or more persons and whether the said persons
entertained one or more of the common objects, as specified in
Section 141. It cannot be laid down as a general proposition of
law that unless an overt act is proved against a person, who is
alleged to be a member of unlawful assembly, it cannot be said
that he is a member of an assembly. The only thing required is
that he should have understood that the assembly was unlawful
and was likely to commit any of the acts which fall within the
purview of Section 141. The word object' means the purpose or
design and, in order to make it 'common', it must be shared by
all. In other words, the object should be common to the persons,
who compose the assembly, that is to say, they should all be
aware of it and concur in it. A common object may be formed
by express agreement after mutual consultation, but that is by
no means necessary. It may be formed at any stage by all or a
few members of the assembly and the other members may just
join and adopt it. Once formed, it need not continue to be the
same. It may be modified or altered or abandoned at any stage.
The expression 'in prosecution of common object' as appearing
in Section 149 have to be strictly construed as equivalent to in
order to attain the common object'. It must be immediately
connected with the common object by virtue of the nature of the
object. There must be community of object and the object may
exist only up to a particular stage, and not thereafter."
35. Later, in Bhanwar Singh v. State of Madhya Pradesh (2008) 16 SCC
657, it was explained as under:
"Hence, the common object of the unlawful assembly in
question depends firstly on whether such object can be
classified as one of those described in Section 141 of the IPC.
Secondly, such common object need not be the product of prior
concert but, as per established law, may form on the spur of the
moment (see also Sukha v. State of Rajasthan AIR 1956 SC
513). Finally, the nature of this common object is a question of
fact to be determined by considering nature of arms, nature of
the assembly, behaviour of the members etc. (see
also Rachamreddi Chenna Reddy v. State of Andhra
Pradesh (1999) 3 SCC 97)."
36. In the present case, the common object as projected by the prosecution in
the charge sheet, and as purportedly shared by the accused, was to prevent
Vijay (PW-9) from deposing in the trial arising out of the incident in 1994
where Manjeet, Manoj and Mahesh were named as accused and Vijay (PW-
9) was the injured eye witness. If this was indeed the common object, then
the question arises as to whether the acts performed by the accused did, in
fact, serve this common object. It must be remembered that it is Sunil, the
elder brother of Vijay, who was killed. As regards Sunil, there was a single
knife blow on his back which happened to pierce his lungs. Although Vijay
was purportedly attacked by A2, A3 and A5, Vijay was not even injured. If
indeed the common object was to prevent Vijay from deposing in the Court,
it is strange that Vijay was not injured at all in the incident. This aspect of
the matter has been lost sight of by the trial Court.
37. It has been argued on behalf of the Appellants that the story of the
prosecution that the case arising out of the incident of 1994 was listed on the
following day, i.e. 17th September 1996, was not even established by the
prosecution. In reply, it is pointed out by learned Senior Counsel appearing
for the complainants that at least one of the eye witnesses, i.e. Rakhi (PW-
5), spoke about the case being scheduled for hearing on the following day.
In any event, as far as IOs (PWs 18 and 19) are concerned, they do not
appear to have even probed this aspect of the matter. In other words, there
was no verification of whether the trial of the previous case was slated for
the following day, i.e. 17th September 1996, and whether Vijay had to
depose in the trial on that day. The common object, therefore, cannot be said
to have been established by the prosecution.
Evidence of PW-5
38. According to PW-5 the case in which Vijay was injured was pending in
the Court and the date of that case was 17 th September 1996. She began by
saying that at around 6:15 pm on 16th September 1996, Sanjay (PW-14) and
Vijay (PW-9) came to the house of Sunil (the deceased) and informed her
father-in-law, PW-6, that they had been threatened by Manjeet (A1) and
Ajeet (JCL) that that they would not permit Vijay to go and depose in the
trial the following day and that they would test his courage in the akhara
(wrestling ring). She goes on to state that at around 6:30 pm, Manjeet (A1)
and Suranjan (A2) who were both carrying knives, Satpal (A8) and Gulab
(A6) who were carrying iron rods and Mahesh (A5) who was carrying a
lathi entered her house. Gulab (A6) exhorted that the complainant party
should be killed. Thereafter, Jasbir (A4), Manoj (A3), Ram Niwas (A7),
Ganeshi (since deceased), Ajeet and the others totalling 10 of them were
present. She herself was on the terrace and on hearing the noise, came down.
First Suranjan (A2) attacked her husband Sunil with a knife but Sunil
managed to avoid it. Thereafter, Manjeet (A1) attacked him on the left side
from the back below the shoulder. Satpal (A8) and Gulab (A6) hit him with
iron rods. Manjeet (A1) then hit him with the lathi. Sunil then fell on the
ground at which point Jasbir (A4) and Manoj (A3) caught him by the legs
and said that he should be finished off and they will not let him rise. Ram
Niwas (A7), Ajeet (JCL) and Ganeshi (since deceased) attacked PWs- 3, 6,
and 9 and prevented them from coming forward to try and save Sunil.
Sanjay (PW-14) was also present but did not do anything.
39. There was a young child on her lap and, therefore, PW-5 continued
standing near the staircase. However, on listening to the noise of the persons
gathered outside, the ten of them, after having murdered her husband due to
past enmity, ran away from there. After they fled, Pawan Tyagi (PW-8) and
PW-13 arrived there. PW-6 then called the police. Thereafter, PWs- 6, 8, 13,
9 and 14 took Sunil to the hospital where he was declared to have been
brought dead. She was able to identify all the accused except Ajeet (JCL).
40. In her cross examination, PW-5 stated that she was not aware whether
any of the victims was to be examined at the hearing on
17th September 1996. She only was aware that summons had been received
and there was a date of listing.
41. The other eye witnesses for the prosecution viz., Vidya (PW-3), her
husband Om Prakash (PW-6); her son Vijay (PW-9); and Sanjay (PW-14)
have spoken more or less on the same lines as PW-5. However, since they
are interested witnesses and there is previous enmity between the parties,
their evidence although seemingly consistent, has to be examined with some
caution.
Law relating to evidence of interested eye witnesses
42. At this stage, it is important to recapitulate the law relating to
appreciation of eye witness who may be related witnesses or interested
witnesses.
43. In Dalip Singh v. State of Punjab 1954 SCR 145, the Supreme Court
explained:
"A witness is normally to be considered independent unless he
or she springs from sources which are likely to be tainted and
that usually means unless the witness has cause, such as enmity
against the accused, to wish to implicate him falsely.
Ordinarily, a close relative would be the last to screen the real
culprit and falsely implicate an innocent person. It is true, when
feelings run high and there is personal cause for enmity, that
there is a tendency to drag in an innocent person against whom
a witness has a grudge along with the guilty, but foundation
must be laid for such a criticism and the mere fact of
relationship far from being a foundation is often a sure
guarantee of truth. However, we are not attempting any
sweeping generalisation. Each case must be judged on its own
facts. Our observations are only made to combat what is so
often put forward in cases before us as a general rule of
prudence. There is no such general rule. Each case must be
limited to and be governed by its own facts."
44. In State of Bihar v. Basawan Singh AIR 1958 SC 500, the Constitution
Bench of the Supreme Court held:
"The correct Rule is this: if any of the witnesses are
accomplices who are particeps criminis in respect of the actual
crime charged, their evidence must be treated as the evidence of
accomplices is treated; if they are not accomplices but are
partisan or interested witnesses, who are concerned in the
success of the trap, their evidence must be tested in the same
way as other interested evidence is tested by the application of
diverse considerations which must vary from case to case, and
in a proper case, the court may even look for independent
corroboration before convicting the accused person."
45. In Darya Singh v. State of Punjab (1964) 3 SCR 397, it was observed
by the Supreme Court as under:
"There can be no doubt that in a murder case when evidence is
given by near relatives of the victim and the murder is alleged
to have been committed by the enemy of the family, criminal
courts must examine the evidence of the interested witnesses,
like the relatives of the victim, very carefully. But a person may
be interested in the victim, being his relation or otherwise, and
may not necessarily be hostile to the accused. In that case, the
fact that the witness was related to the victim or was his friend,
may not necessarily introduce any infirmity in his evidence. But
where the witness is a close relation of the victim and is shown
to share the victim's hostility to his assailant, that naturally
makes it necessary for the criminal courts examine the evidence
given by such witness very carefully and scrutinise all the
infirmities in that evidence before deciding to act upon it... [I]t
may be relevant to remember that though the witness is hostile
to the assailant, it is not likely that he would deliberately omit
to name the real assailant and substitute in his place the name of
the enemy of the family out of malice. The desire to punish the
victim would be so powerful in his mind that he would
unhesitatingly name the real assailant and would not think of
substituting in his place the enemy of the family though he was
not concerned with the assault. It is not improbable that in
giving evidence, such a witness may name the real assailant and
may add other persons out of malice and enmity and that is a
factor which has to be borne in mind in appreciating the
evidence of interested witnesses. On principle, however, it is
difficult to accept the plea that if a witness is shown to be a
relative of the deceased and it is also shown that he shared the
hostility of the victim towards the assailant, his evidence can
never be accepted unless it is corroborated on material
particulars."
46. In Sarwan Singh v. State of Punjab (1976) 4 SCC 369, the Supreme
Court explained:
"The evidence of an interested witness does not suffer from any
infirmity as such, but the courts require as a rule of prudence,
not as a rule of law, that the evidence of such witnesses should
be scrutinised with a little care. Once that approach is made and
the court is satisfied that the evidence of interested witnesses
has a ring of truth such evidence could be relied upon even
without corroboration."
47. In Jayabalan v. UT of Pondicherry (2010) 1 SCC 199, the Supreme
Court held as under:
"23. We are of the considered view that in cases where the
court is called upon to deal with the evidence of the interested
witnesses, the approach of the court, while appreciating the
evidence of such witnesses must not be pedantic. The court
must be cautious in appreciating and accepting the evidence
given by the interested witnesses but the court must not be
suspicious of such evidence. The primary endeavour of the
court must be to look for consistency."
48. In Waman v. State of Maharashtra (2011) 7 SCC 295, the law was
summarized as under:
"It is clear that merely because the witnesses are related to the
complainant or the deceased, their evidence cannot be thrown
out. If their evidence is found to be consistent and true, the fact
of being a relative cannot by itself discredit their evidence. In
other words, the relationship is not a factor to affect the
credibility of a witness and the courts have to scrutinise their
evidence meticulously with a little care."
49. The legal position was succinctly encapsulated in Raju v. State of Tamil
Nadu AIR 2013 SC 983:
".....we are concerned with four categories of witnesses - a third
party disinterested and unrelated witness (such as a bystander
or passer-by); a third party interested witness (such as a trap
witness); a related and therefore an interested witness (such as
the wife of the victim) having an interest in seeing that the
accused is punished; a related and therefore an interested
witness (such as the wife or brother of the victim) having an
interest in seeing the accused punished and also having some
enmity with the accused. But, more than the categorization of a
witness, the issue really is one of appreciation of the evidence
of a witness. A court should examine the evidence of a related
and interested witness having an interest in seeing the accused
punished and also having some enmity with the accused with
greater care and caution than the evidence of a third party
disinterested and unrelated witness. This is all that is expected
and required."
50. The law in relation to interested witnesses, as explained in the above
decisions, is that their evidence is not to be looked upon with suspicion only
because of their relationship with the deceased. However, as in the present
case, the complainant and the accused share a common ancestor and two
whole branches are sought to be arraigned as accused, the Court has to be
careful to ascertain if there are embellishments and whether the other
attendant circumstances give room for suspicion as to the truth of their
version.
Analysis of eye witness testimonies
51. In the present case the eye witnesses, viz., Vidya (PW-3); her husband
Om Prakash (PW-6); her daughter-in-law Rakhi (PW-5); her son Vijay
(PW-9); and Sanjay (PW-14) were both interested and related witnesses.
'Interested' because on account of their past enmity, it is possible that the
complainants sought to implicate the other branches inimical to them. The
complainants belonged to the same branch, namely the Surajmal branch,
whereas the accused belonged to the Ganeshi and Hukmi branches.
52. The incident took place at around 6:15 pm and the first DD entry was the
first information submitted to the PCR at 6:56 pm. That information did not
give the location of the scene of crime as the house of PW-6, but "near the
panchayat ghar". This assumes significance since according to both the
rough site plan and the scaled site plan, the dimensions of the house of PW-6
are such that for ten persons to enter and start attacking a family of five
would not really be practical or serve the purpose. The scaled site plan
makes the situation even worse with there being two cots shown in the
room. Whether ten persons would be able to even fit in with five others in
the same room and then go on attacking all of them requires to be
appreciated in this context.
53. Understandably, therefore, learned counsel for the Appellants harped
upon the definition of „proof‟ in terms of Section 3 Indian Evidence Act
(„IEA‟). It is emphasized that the proof has to be that which a prudent man
would understand as probably happening in the circumstances. As rightly
pointed out, there was perhaps not even enough room if indeed fifteen
persons were present in such a small cramped place, as shown in the rough
site plan, for the attackers even to swing their rods and lathis and attack the
party of the complainant. The discrepancies already noticed in the rough and
scaled site plans have not been adequately explained by the prosecution.
54. One of the serious problems with the eye witness testimonies in this case
has to do with the common object for which all the accused purportedly
came together. This was supposedly to prevent Vijay (PW-9) from deposing
in the Court on the following day. Yet, the attackers did not even touch
Vijay (PW-9) but straightaway started attacking Sunil who admittedly was
not the injured eye witness in the earlier case and, therefore, was not
required to depose in the earlier case. It is a mystery therefore why the
attackers would stop with attacking Sunil and leave Vijay (PW-9) alone.
This lacuna has not been explained by the prosecution. It is for the
prosecution to prove the case according to its version.
55. Before examining the evidence of PW-6, it requires to be noted that
there was no previous statement recorded of PWs 3 and 5. These were the
two women who were present at the residence when the police officials from
the PCR van came there. There was no reason why their statements were not
recorded. The second strange aspect is that the police officials who came
first to the spot in the PCR van were not named as prosecution witnesses. In
fact, the delay in registering the FIR and waiting for PW-6 to make a
statement has given rise to the grave doubts.
Delay in registering the FIR
56. It is in this context that the delay in registering the FIR assumes great
significance. The incident took place at 6.30 pm on 16th September 1996
and the FIR was finally registered only on 11:25 pm on 16 th September
1996, i.e. several hours after the occurrence. The question that arises is
whether this delay gave sufficient time to distort the truth of the events. As
explained in Meharaj Singh v. State of U.P. (1994) 5 SCC 188 "delay in
lodging an FIR often results in embellishment which is a creature of an
afterthought."
57. It was important for the prosecution to explain how in the PCR, the
initial reports received talked of the incident happening at the Panchayat
Ghar and not in the house of PW-6 and why the PCR van did not reach the
Panchayat Ghar. The explanation given by PW-18 that on his way to the
Panchayat Ghar, he somehow came to know that the incident happened in
the house of PW-6 is not convincing at all.
58. It is also strange that the Panchayat Ghar is not indicated in the rough
site plan. With all the named assailants being from within the family, it
should not have been difficult for them to be named even in the first call
made to the police. If indeed PW-6 had given first information to the police,
it is strange how he would indicate that the incident had happened near the
Panchayat Ghar and not inside his own house. The other aspect of the matter
is that the original of the PCR form was not exhibited. It was simply marked
as a document and not proved. There was a delay also in sending the FIR to
the Illaka Magistrate. It was sent only at 10:30 am on the following
morning. This delay has not been satisfactorily explained.
59. When the above delay is seen in the context of the fact that PW-6 first
preferred to talk to PW-4 and not call the police, this delay assumes
significance. The question really is whether all the members of the family of
the two branches, i.e. Ganeshi and Hukmi, were in fact involved in this
incident or have they simply been roped in. Given the past enmity, the Court
has to be extremely careful in approaching their evidence. Moreover, except
the deceased, no other person even from the victim‟s families suffered any
injuries whatsoever. No MLC for any of them is available, particularly,
when PW-3 says that the earrings were snatched from her ears by Ram
Niwas, there had to be some mark of injury. There was in fact none. This
gives rise to grave doubts over whether the so-called eye witnesses are
truthful and can be relied upon. Therefore, although prima facie it appears
that there are several eye witnesses who have spoken consistently about
what happened, their evidence does not inspire confidence.
Other peculiar features
60. There are certain other peculiar features which again give rise to doubts
about the prosecution witnesses speaking the entire truth. A view of the
rough site plan as well as the scaled site plan reveals that the room in which
the incident purportedly took place was not big enough to accommodate two
cots, ten attackers and five people from the victim‟s family at the same time.
Even to swing the lathi there has to be some space.
61. Further the iron rods seized were not sent to the FSL. They were not
even shown to the doctor or to any of the witnesses. The seized belongings
were sent to the FSL after two months. Another aspect of the matter is that
although several people accompanied Sunil to the hospital, it is only Om
Prakash (PW-6) who had blood stains on his clothes. The car of Anil (PW-
13) was used to carry Sunil to the hospital. Anil was not a stranger. In fact
his cross-examination reveals that he was perhaps a stock witness of the
police. With several cases against him, he was not an unknown figure. Yet,
his statement under Section 161 Cr PC was recorded 25 days after the
incident.
62. The car in which Sunil was carried to the hospital was not examined.
Particularly, if there were blood stains in the car, they were not lifted. With
all these lacunae when one examines the evidence of PW-6, there are further
questions that arise as regards the truthfulness of his version.
63. Even from the evidence of PW-6 it appears that the alleged object of the
unlawful assembly was to prevent Vijay from deposing in the Court and yet
Vijay was left untouched. It was argued by Mr. Hariharan, the learned
Senior counsel for the complainants, on the strength of the decision in Lalji
v. State of U.P. AIR 1989 SC 754 that the object could be developed at the
spot. The observations of the Supreme Court in the aforementioned decision
read as under:
"8. Section 149 I.P.C. provides that if an offence is committed
by any member of an unlawful assembly in prosecution of the
common object of that assembly, or such as the members of the
assembly knew to be likely to be committed in prosecution of
that object, every person, who at the time of committing of that
offence is a member of the same assembly, is guilty of that
offence. As has been defined in Section 141 I.P.C., an assembly
of five or more persons is designated an 'Unlawful Assembly',
if the common object of the persons composing that assembly is
to do any act or acts stated in clauses 'First', 'Second', 'Third',
'Fourth', and 'Fifth' of that section. An assembly, as the
explanation to the section says, which was not unlawful when it
assembled, may subsequently become an unlawful assembly.
Whoever being aware of facts which render any assembly an
unlawful assembly intentionally joins that assembly, or
continues in it, is said to be a member of an unlawful assembly.
Thus, when- ever so many as five or more persons meet
together to support each other, even against opposition, in
carrying out the common object which is likely to involve
violence or to produce in the minds of rational and firm men
any reasonable apprehension of violence, then even though they
ultimately depart without doing anything whatever towards
carrying out their common object, the mere fact of their having
thus met will constitute an offence. Of course, the alarm must
not be merely such as would frighten any foolish or timid
person, but must be such as would alarm person of reasonable
firmness and courage. The two essentials of the section are the
commission of an offence by any member of an unlawful
assembly and that such offence must have been committed in
prosecution of the common object of that assembly or must be
such as the members of that assembly knew to be likely to be
committed. Not every person is necessarily guilty but only
those who share in the common object. The common object of
the assembly must be one of the five objects mentioned
in Section 141 I.P.C. Common object of the unlawful assembly
can be gathered from the nature of the assembly, arms used by
them and the behaviour of the assembly at or before scene of
occurrence. It is an inference to be deduced from the facts and
circumstances of each case."
64. In the present case, all Sunil did was ask them why they suddenly
entered the house. This could not be a reason to alter the purported original
object which was to attack Vijay. The Court is not able to appreciate the
submission on the basis of the above decision that in the present case, the
common object of attacking Sunil instead of Vijay was developed "on the
spot". From the narration of the PWs, it only appears that Ajeet first tried to
attack Sunil followed by Manjeet. It, therefore, cannot be said that all the
others shared the common object of Sunil being attacked. While according
to the PWs, Sunil started getting attacked with iron rod and lathi, the iron
rod was never shown to the doctor to confirm that the other injuries to Sunil
could have been caused by such iron rods. It is, therefore, not possible to
gather the common object from the nature of the arms used by the assailants.
The doctor who performed the post-mortem examination conceded that the
other injuries on Sunil barring the fatal knife blow could have been caused
as a result of the fall. Therefore it must be held that the prosecution has not
been able to prove beyond reasonable doubt that the other injuries were
caused to Sunil as a result of the iron rod and lathi blows.
No basis for change in 'common object'
65. It was then argued on the basis of the decision in Ramachandran v.
State of Kerala AIR 2011 SC 351 that for a common object, it is not
necessary that there should be a prior concert in the sense of the meeting of
mind of the members of the unlawful assembly but it could be formed "on
spur of the moment".
66. In the present case, according to the prosecution the earlier case in which
PW-9 was injured was listed for hearing on 17th September 1996 and it was
to prevent Vijay from deposing in that hearing that all the assailants came
together with a common object. The prosecution has not been able to show
that having come to attack with that common object the assailants "at the
spur of the moment" decided to change their common object and attacked
Sunil instead. It has to be shown that Sunil was a witness in the trial which
was going to take place on the next day. That, however, was not the
prosecution‟s case.
67. In any event, although spoken to by PWs 3 and 5, the IO does not appear
to have made any effort to even collect copies of the summons purportedly
received by PWs- 3 and 5 about hearing on the next day. Importantly, the IO
had to find out whether Sunil at all was a witness in that case and whether
Sunil was going to be examined the next day in the trial. In the absence of
investigation of this important aspect, it is not possible to agree with
Mr. Hariharan‟s submission that the common object was generally to
prevent "Vijay and his family members" from proceeding with the earlier
case. The prosecution evidence does not establish this aspect at all. The
Court is, therefore, not satisfied that offence under Section 149 of the IPC
can be said to have been made out by the prosecution in the present case.
Whether all of the accused in fact participated with their respective weapons
is not clear from the evidence of the prosecution.
Death of Sunil
68. What we are left with, therefore, is the fact that the death of Sunil was
homicidal. There was one fatal injury on the back of his chest which was a
knife blow. The prosecution has been able to prove with reasonable certainty
that the person who attacked Sunil with the knife was Manjeet (A1). The
other person who attacked was Ajeet (JCL) but he, the Court is told, has
been acquitted by the JJB and his acquittal has become final. A2, who also
wielded a knife, was unable to give any knife blow to Sunil.
69. With the eye witnesses speaking of Manjeet giving the knife blow, the
question which then arises is, what is the nature of the offence? Is it a pre-
meditated murder or a culpable homicide not amounting to murder? It is
argued by Mr. Hariharan on the basis of the decision in Virsa Singh v. State
of Punjab AIR 1958 SC 465 that to bring home the charge of murder all that
the prosecution has to show is that there was a fatal wound with the deadly
weapon and that this was not a free fight. It would lead to the inference that
the intention was, in fact, only to kill the deceased and nothing else.
70. However, when one carefully examines the exceptions to Section 300
IPC, Exception 4 is perhaps attracted in the present case. Provocation was
given by Sunil when he had asked Manjeet why they had come to his house.
The response of Manjeet who had perhaps come there to attack Vijay was to
instead attack Sunil. There was, therefore, no pre-meditation on the part of
Manjeet to attack Sunil. It was a crime committed on the spur of the moment
in the heat of passion. Also, the reaction was not disproportionate in the
sense that it was a single knife blow on the back. Although this was the fatal
blow and punctured the lung, it cannot be said that Manjeet, in fact, came
there with the intention of killing Sunil. He certainly would have had the
knowledge that the knife blow was likely to cause the death of Sunil but
clearly the intention was not to cause such fatal knife blow. The attack was
from behind and as a result of some scuffle with Sunil avoiding the knife
blow of Suranjan Singh (A-2) and then getting the knife blow from Manjeet
(A-1).
71. The interested eye witnesses talk of the exhortations of Gulab that no
one should be spared. This somehow does not square with the other part of
the prosecution case whereby none of the other members of the victim
family were even touched. Further, even according to the prosecution, when
Sunil fell down, all the members of the assailant party fled.
72. As far as Manjeet is concerned, therefore, it cannot be said that the
intention was dictated by the exhortation of Gulab at the spot. According to
the prosecution, Manjeet and Ajeet met Sanjay and Vijay in the fields just
prior to the incident and Manjeet and Ajeet are said to have taunted Vijay
and Sanjay. This is spoken to by both PWs- 9 and 13. It is thereafter that the
attack took place, again not on Vijay but on Sunil although it is possible that
Manjeet may have to come there to attack Vijay. Therefore, as far as Sunil is
concerned, the prosecution has not been able to prove that Manjeet, in fact,
attacked Sunil and killed him. What it has been able to prove is that in the
scuffle that took place, Sunil did receive a knife blow from Manjeet on the
back of his chest and it turned out to be a fatal blow.
73. Even going by the law explained by Virsa Singh (supra), the Court is
satisfied that the offence for which Manjeet can be punished is that of
culpable homicide not amounting to murder punishable under Section 304
Part-II IPC.
74. Mr. Hariharan sought to rely on the decision in Jai Prakash v. State
(Delhi Administration) (1991) 2 SCC 32 to argue that it is enough for the
prosecution to show that there was a bodily injury which was sufficient in
the ordinary course of nature to cause death. However, the third element
spoken to in the above judgment is absent viz., that "the accused intended to
inflict that particular injury that is to say it was not accidental or
unintentional or that some other kind of injury is inflicted".
75. In the present case, as already noticed, A2 was the first one who lunged
at Sunil who avoided his knife blow and then got a knife blow on the back
of his chest from Manjeet. It is, therefore, not clear that the third element
mentioned in the above decision stands fulfilled.
Conclusion
76. Consequently, as far as Manjeet (A-1) is concerned, the Court converts
his conviction from one punishable under Section 302 IPC to one punishable
under Section 304 Part-II IPC.
77. The Court is informed that Manjeet has already served nine years of
imprisonment. His sentence for the aforementioned offence is, therefore,
confined to the period already undergone.
78. As far as the other co-accused are concerned, the Court is not satisfied
that the prosecution has been able to prove that all of them came together to
form an unlawful assembly and further that the said unlawful assembly was
with a common object of killing Sunil. With none of the other persons in the
victim‟s family receiving any injury whatsoever and with medical evidence
not corroborating the version of the eye witnesses in this regard and given
the fact that there being previous enmity between the parties may give rise to
a tendency to make embellishments, the Court acquits all of the other
accused of the offences with which they were charged.
79. The impugned judgment and order on sentence of the trial Court stands
modified in the above terms. The bail bonds and surety bonds furnished by
the Appellants stand discharged. A-2, A-3, A-4, A-6 and A-7 shall fulfil the
requirements of Section 437 A Cr PC to the satisfaction of the trial Court at
the earliest.
80. The appeals and pending application are disposed of in the above terms
with no order as to costs. The trial Court record be returned forthwith
together with a certified copy of this judgment.
S. MURALIDHAR, J.
I.S. MEHTA, J.
APRIL 11, 2018/'anb'/rd
