Sunder Lal vs State
2019 Latest Caselaw 3862 Del

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     IN THE HIGH COURT OF DELHI AT NEW DELHI


                                  Judgment Reserved On : 04.07.2019
                                Judgment Pronounced On : 21.08.2019


CRL.A.909/2001

SUNDER LAL                                       .... Appellant

                                   versus

STATE                                            .... Respondent
Advocates who appeared in this case:
For the Appellant   : Mr. Akshay Chandra, Advocate
For the Respondent  : Ms. Radhika Kolluru, APP

CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE BRIJESH SETHI

                            JUDGMENT

SIDDHARTH MRIDUL, J.

1. The present appeal instituted under the provision of section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C') assails the judgment dated 21.9.2001 and the order on sentence dated 24.9.2001, rendered by learned Additional Sessions Judge, Tis Hazari, Delhi, in Session Case No. 121/1997, titled as 'State vs. Munna & Ors', emanating from F.I.R No. 222/1997 under section 302/34 of the Indian Penal Code, 1860 (hereinafter referred to

as 'IPC') registered at Police Station Jahangirpuri; whereby the appellant, Sunder Lal, was convicted for the offence under Section 302 IPC read with Section 34 IPC and sentenced to undergo imprisonment for life along with a fine of Rs. 2000/-. In default of the payment of fine, the appellant has been sentenced to further undergo a further rigorous imprisonment of 2 months. The benefit of section 428, Cr.P.C, has been granted to the appellant.

2. The case of the prosecution as elaborated by the learned Trial

Court is briefly encapsulated as follow: -

" On 23.4.97 wireless operator gave an information that lady constable Prabha had given wireless message that knife was inflicted on one person in juuggies at A-1 Block, Jahangir Puri, Shiva Marker, Mangal Bazar Road. The same was recorded as DD No. 60B. The said information was conveyed to Inspector and inspector reached at the spot viz opposite A-1 Market near jhuggi. He found HC Govind Singh and constable Dhiraj present at the spot ad one person wo name and address was known as Pardeep Kumar S/o Narain Dsss aged about 35 years in dead condition. On inspection of dead body there was sign of injury and blood clot with sharp edged weapon on the left side of body and injury and clot of blood on the right side ear of the body and blood was ossing from on both the said injuries. The deceased was wearing pant of kathai colour, underwear (Katch) of blue colour. There was torn baniyan and without chappal in his legs/ there was one leg of cot towards head of the dead body. The head of the dead body was towards southern side and legs were on northern side. Smt. Munni Devi was present at the spot and her statement was recorded. In her statement Smt. Munni Devi stated that at about 8 P.M. on 23.4.97 she was sitting on cot in front of her jhuggi, her son Ajit aged 8 years and Dalip aged 10 years were coming from Mangal Bazar road. After seeing Jagran when they reached at jhuggi near park in front of A-1 market her neighbor Rashid S/o Munna @ Total

had caught hold her son Dalip and started beating him. She stood up and tried to rescue her son. In the meantime, Rani W/o Munna also came and caught hold her hairs and started quarrelling with her. After hearing noise of the quarrel her husband Pardeep Kumar also reached there and Munna @ Total also came and they started quarrelling, during quarrel with them, Munna called Anwar and Sunder and went to his jhuggi and came with a churiin his hand and Sunder came with leg of cot and told that they will finish Pradeep. Anwar and Rani W/o Munna and her son Rashid gripped her husband Pardeep Kumar and Munna @ Total inflicted knife blow on the chest of her husband Pardeep Kumar and also inflicted on the head on her right side of her husband and Sunder attacked with leg of cot on her husband Pardeep Kumar as a result of which her husband became in pool of blood and fell down and Sunder left the spot, after leaving the leg of cod there. Said other person also left the spot. Her husband Pardeep Kumar expired at the spot. Rani W/o Munna, Rashid S/o Munna, Anwar, Sunder and Munna @ Total had caused the deathof her husband Pardeep Kumar. On the basis of said statement of Smt. Munni Devi a ruqqa was prepared and sent to the police station for registration of F.I.R and on inspection of the dead body said inspector investigated the matter and got the site photographed. Site plan was prepared and the exhibits were taken into possession from the spot. The post mortem was conducted on the dead body of Pardeep Kumar and after post mortem dead body was handed over to his heirs on 24.4.97. All the accused Munna, Anwar and Sunder were arrested. Munna @ Total made a disclosure statement and got recovered a knife and a case u/s 27/25/54/59 Arms Act was registered. Accused Anwar and Sunder Lal made disclosure statement and all the three accused pointed out the spot. The statement of witnesses were recorded and opinion of doctor was obtained. The exhibits were sent to office of F.S.L. the proceedings U/s 82/83 Cr.P.C. against Rani and Rashid were conducted. The names of accused Rani and Rashid were mentioned in column No. 2. After completion of investigation challan U/s 302/34 IPC and 25/27/54/59 Arms Act was prepared and filed before concerned Metropolitan Magistrate."

3. Upon completion of investigation, charge-sheet was filed for the

offences punishable under section 302/34 IPC and 25/27/54/59 Arms

Act, 1959 and charges were framed against the appellant under

sections 302 read with 34 IPC. The appellant pleaded not guilty and

claimed trial.

4. To establish the case against the appellant, the prosecution

examined 17 witnesses at trial.

5. The statement of the appellant under section 313 Cr.P.C. was

recorded, wherein he denied the case of the prosecution and stated that

he was lifted from his house and falsely implicated in the case. The

appellant did not lead any defence evidence in his support.

6. Broadly speaking, the Trial court convicted the appellant (along

with his co-accused, Munna) on the statement of the eye witnesses,

Smt Munni Devi (hereinafter referred to as 'PW-1') and Dalip

(hereinafter referred to as 'PW-4') coupled with the circumstantial

evidence of post mortem report and the report of the Forensic Science

Laboratory (hereinafter referred to as 'the FSL').

7. Mr. Akshay Chandra, learned counsel on behalf of the

appellant, asseverated the innocence of the appellant and that the

appellant was falsely implicated in the present case. He assails the

impugned judgment of the Trial court on the following grounds:

a. That the trial court erred in convicting the appellant by

relying on the testimonies of PW-1 & PW-4, in as much

as, their testimonies were at variance with the medical

evidence in the present case;

b. That there is a contradiction in the statement of PW-1 as

she stated in her testimony in court that Munna exhorted

that 'Pradeep ka kaam tamaam kar dete hai', however, in

her complaint given to the police [Ex.PW1/A], she stated

that Sunder gave such exhortation;

c. That there were improvements in the evidence of PW-4 in

his testimony in court, which were not stated by him to the

police in his statement under section 161 Cr.P.C., to

following extent:

i. that Rani (wife of the co-accused) held the hair of

his mother, PW-1,

ii. that Munna stated to Anwar and Sunder that let us

finish-off Pradeep (Pradeep ka aaj kaam tamam kar

dete hain),

iii. that Sunder had struck Pradeep in the head with the

leg of the cot;

d. That PW-1 & PW-4 being the wife of the deceased and

the son of the deceased, respectively, were interested

witnesses and as such their testimonies could not be

considered trustworthy and reliable;

e. That the motive to commit the present offence was not

proved in the Trial court as only PW-1 alleged the same

and no other independent witness or evidence was

adduced to establish motive to commit the present

offence;

f. That no finding was given by the doctor in the post

mortem report that, the deceased was hit in the head with

the leg of the cot and as such, the appellant could not have

been said to have caused the death of the deceased in

absence of such finding;

g. That common intention under section 34 IPC could not be

attributed to the appellant, in the absence of a finding of

injury on head of the deceased and that the only act

attributed against him was of being called to the spot and

going to bring the leg of the cot;

h. That in the testimony of PW-10, the doctor who

conducted the post mortem of the deceased, it was stated

that the cause of death was Cardiac Temponade (heart

failure consequent to injury no. 2) and that in the of post

mortem report it was opined that "Skull Bones" and "Base

of Skull" were found intact and that therefore, the

appellant could not have said to have caused the death of

the appellant by striking him on the head with the leg of

the cot.

All the above circumstances, it is asserted, render the impugned

judgment of the Trial court liable to be set aside, qua the appellant.

8. To drive home his argument on the unreliability of the

prosecution witnesses, learned counsel on behalf of the appellant

relied on the judgment of the Hon'ble Supreme Court of India in

Thaman Kumar v. State, reported as 2003 6 SCC 380 wherein it was

observed that:

"The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the

weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye-witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful."

9. Per contra, Ms. Radhika Kolluru, Learned Additional Public

Prosecutor appearing on behalf of the State, assiduously supported the

impugned judgment of the trial court, and asserted that the statements

of PW-1 & PW-4 were creditworthy, reliable and as such, minor

variations in their statements could not discredit them. Ms. Kolluru

also pointed out that, both being injured eye witnesses, their

statements have a higher sanctity in law.

10. It is further submitted on behalf of the State that, the appellant

was convicted by the Trial court under section 302 read with section

34 IPC; hence, the role of the appellant could not be seen in isolation,

but has to be examined in light of the acts and conduct of the other

accused persons, as well as his own.

11. We have heard counsel appearing on behalf of the parties and

perused the evidence on record.

12. To effectively adjudicate the present appeal, it is incumbent

upon us to reproduce the entire testimony of PW-1 & PW-4, both of

whom were injured eye-witnesses in the instant case, before the trial

court. The testimony of PW-1 is as follows:

"®m] Sm] Æ nWmदेवी w/o ÿUmYकुमार r/o Jhuggi A1 ] kD¥Nजहाँगीर परू ी lUÐa m ससपथ

ÿlUYकुमार मेरा घर वाला था 23.4.97 को ] §अपने घर के बाहर चारपाई पर अपनी LµnFm के सामने बैठी थी रात के 8 बजे का समय था (Eight PM) मेरे लड़के दलीप व अजीत जागरण देखने गए hò> थे| जागरण मेरी LµnFmके नजदीक हो रहा था | मेरे लड़के आठ बजे रात के करीब वािपस आए | मल ु िजम ] Æ nWkहािजर अदालत के लड़के रासीद ने मेरे लड़के से झगड़ा करा वह ] Æ nWk Dì LµnFlh के पास थे रासीद ने मेरे लड़के दलीप का मारा | ] §वहाँ YhòI2 mकर बीच बचाओ करा | ] Æ nWk Dì घरवाली रानी भी वहाँ आ गई उसने मेरे बाल िखंचे | मेरे साथ झगड़ा करा | मेरी आवाज सनु कर मेरा आदमी ÿUmY वहाँ आ गया उसके बाद ] Æ nWk हािजर अदालत भी वहाँ मौके पर आ गया व उसने भी h] ¤मारना e ł n कर िदया | ] Æ nWkने अनवर व सदंु र को आवाज दी वह भी मौके पर आ गया ] Æ nWkबोला Dì आज ÿUmYका काम तमाम कर दो ] Æ nWk अपनी LµnFmमे गया वह चरू ी लेकर आया | मoू संदु र चारपाई का पावा लाया | अनवर रासीद व रानी ने मेरे आदमी को पकड़ िलया व ] Æ nWk न मेरे आदमी Dì छुरी छाती व िसर पर मारा व संदु र मoू ने मेरे पित के िसर पर चारपाई का पावा मारा िजसके लगते ही मेरा आदमी िफर गया | सब मoू वहाँ से भाग गए | ] §पिु लस ÖNte Wगई | पिु लस मौके पर आई | चारपाई का पावा मौके पर छोड़ गए | ] W §t मौके पर पिु लस को िशकायत िलखाई exhibit/A मेरे UÖE S h§| ] §मल ु िजम ] Æ nWk व मoू संदु र हािजर अदालत के शनाखत करती hó1| यह वही e ³ g है lKÆhxWtमेरे आदमी को मारा | ] §मoू रानी वह रासीद को भी जानती hó1³ ^Ō lD वह मेरे पड़ौस ] ¤रहते थे |

Xxxx by Sh V K Jain Con for accused जागरण मेरी LµnFmसे 100-150 कदम Dì दरू ी पर हो रहा था | झगड़ा 10-20 िमंट तक चला | जब झगड़ा hò5 ] xhÐa tके कई लोग मोजदू था िकसी ने भी हमे न बचाया मेरे पित का चारपाई का पावा से एक बार मारा व छूरी दो बार मारी | उस समय मल ु िजम ] Æ nWkके भाई बगेरा भी रहते थे | Public के ऐसे िकसी आदमी माँ नाम न बता सकती hó£2 1जो मौके वार दात के समय मौजदू थे | ] §पिु लस ÖNte Wपैदल गई थी | 10-15 िमटं मे वहाँ YhòI1 गई |

थाने जाने से पहले ] §Wttelephone 100 न o पर करा | मेरा Ê^kWपिु लस ने मौके पर िलखा था |मेरे Ê^kWपिु लस ने थाने ] ¤न िलखा | पिु लस वाले dk³ ^ के आधे घटं े से पहले आगए ] §आज court मे सबु ह 10 बजे आ गई थी यह गलत है Dì पिु लस ने मझु े आज ³ ^kÊ^kWदेना है वह समझाया था | पिु लस ने मझु से पछ ू ताछ Dì पिु लस ने और ³ ^kकारवाई Dì ] §न बता सकती hó1| मेरे सामने दलीप मेरे लड़के को दो I kN¤रासीद ने मारे इस dk³ ^tसे 15-20 िदन पहले हमारा सदंु र से झगड़ा hò5 था खदु कहा तब उसने मझु े VÌDì दी थी Dì व मेरे आदमी को दो महीने ] ¤मार U¤Ft | हमने संदु र के माँ बाप को िशकायत Dì थी और पिु लस ] ¤िशकायत न Dì थी यह गलत है Dì मेरे सामने कोई झगड़ा न hò5 यह गलत है ] § झठू ी गवाही दे रही hó1| यह गलत है Dì मoू मौके पर मौजदू न थे |"

13. The testimony of PW-4 is as follows:

"दलीप S/O ÿ] xU age 13 years r/o LµnFmA-1 Market जहाँगीर परू ी lUÐa m ससपथ

मझु े पता है Dì ] §अदालत ] ¤गवाही देने आया hó1] ¤gkSdé D±k] ¤पढ़ता hó1| The witness is able to give answer to question let his statement be recorded on oath ] §जो DhóF1kg¸ I बोलँगू ा

ससपथ 23.4.07 को ] §रात के 8 बजे मगं ल बाज़ार ] ¤जागरण देख कर अपने घर Dì तरफ जा रहा था | ] §Mother Dairy के पास था रानी Dì a „Dì व कुछ और [ ¸ I tआ रहे थे मेरे हाथ रानी Dì a „Dì के लग गया रानी Dì a „Dì ने मझु े गाली दी |] §Wtउसे गाली देने के िलए मना करा उसने अपने भाई रासीद को आवाज दी रासीद वहां आ गया | रासीद मझु े मारने लगा मेरी ] Ì] mमझु े छुड़ाने के िलए आई मेरी ] Ì] mमझु े छुड़ा रही थी तभी रानी वहाँ आ गई | रानी मेरी ] Ì] mसे लड़ाई करने लगी | रानी ने मेरी ] Ì] mके बाल पकड़ िलए | इतने ] ¤मेरे िपता जी वहां आ गए | मoू ] Æ nWkहािजर अदालत भी आ गया ] Æ nWkमेरे िपता जी से लड़ने लग गया | ]Æ nWk अपने घर गया व अनवर व संदु र से कहा Dì ÿUmY का आज काम तमाम कर देते h§| ]Æ nWkचाकू लेकर आया संदु र के पास चारपाई का पावा था | अनवर भी मौजदू था | रासीद व रानी भी मौजदू थे | मेरे िपता को रानी, रानी के लड़के रासीद व अनवर ने पकड़ िलया | ] Æ nWk

ने मेरे िपता Dì छाती पर िसर पर चाकू मारा | संदु र ने मेरे िपता के िसर पर चारपाई का पावा मारा मेरे िपता के खनू बहने लगा िफर वह िगर गए | ] §मoू संदु र हािजर अदालत के e Wk´ S करता hó1|

Xxx by Sh V K Jain Adv ] §वहां से अपने चाचा के घर चला गया था | जब ] §अपने चाचा के साथ आधे घÁNt बाद आया तो पिु लस मौजदू थी पिु लस ने मेरे से पछ ू ताछ Dì थी | पिु लस ने थाना ] ¤मेरे से पछ ू ताछ Dì थी | अगले िदन को भी ] §थाने अगले िदन गया था िदन ] ¤गया था | ] §थाने ] ¤ आधे GÁNtरहा | ] §उससे अगले रोज़ भी थाने गया था | उस िदन मझु से कोई पछ ू ताछ न Dì | 25.4.97 को मेरे कोई Ê^kWन hò> | ] §Wtपिु लस के मेरी माँ के बाल पकड़ने Dì बताई थी confronted with the statement mark A of the witness where it is not recorded | यह भी पिु लस को बताया था Dì दलीप का काम तमाम कर देते h§confronted with mark A statement where it is not recorded. पिु लस को बताया था Dì मू o संदु र ने मेरे िपता जी के िसर पर चारपाई का पावा मारा confronted with mar A where not recorded | मेरे साथ मेरी दादी आई है यह गलत है Dì मेरी दादी ने मझु े ] an lƒ] Ōको िदखाया है | झगड़ा करीब आधे घटं े तक चला | जहां झगड़ा hò5 था वहाँ से हमारी LµnFmका एक िमनट का _kÖSkहै | यह सही है Dì जब झगड़ा hò5 आस पास के लोग 6³ DOt हो गए थे | 10-20 आदमी 6³ DOt हो गए थे | मझु े नी पता पिु लस ने उनके Ê^kWिलखे | यह गलत है Dì मoू मौके पर मौजदू न थे | यह गलत है Dì कोई झगड़ा न hò5 यह गलत है Dì मoू हािजर अदालत ने मेरे िपता को चाकू वह चारपाई के पावा से न मारा | यह गलत है Dì ] ¤अपनी माँ के कहने पर झठू ी गवाही दे रहा hó1|"

14. From a holistic and conjoint reading of the above testimonies

which are credible and trustworthy and have not been shaken in cross

examination, it is evident that both PW-1 & PW-4 have categorically

testified that the appellant came to the spot on being called by Munna

(co-accused) and exhorted that, "Pradeep ka aaj kaam tamam kar dete

hain". It is also unequivocally testified that subsequent to the above

exhortation, the appellant went and brought the leg of the cot, struck

the deceased on his head, consequent upon which, the deceased

collapsed on the spot.

15. Both, PW-1 & PW-4, are injured eye witnesses. The testimony

of an injured eye witness is kept on a higher pedestal and is accorded a

special status in law as held by the Hon'ble Apex Court in Abdul

Sayeed vs. State of Madhya Pradesh, reported as (2010) 10 SCC 254,

reproduced as follows:

"The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."

16. So far as the argument of existence of contradictions in the

testimony of PW-1, as well as the improvement in the testimony of

PW-4 vis-à-vis his statement under section 161 Cr.P.C is concerned, it

is well established by the Hon'ble Supreme Court of India, in a catena

of decisions, that, minor discrepancies in the evidence of the

eyewitnesses do not shake their trustworthiness. [Ref: Balvir Singh v.

State of Madhya Pradesh reported as (2019 (4) Scale 631)].

17. The further argument made by the counsel on behalf of the

appellant that PW-1 & PW-4, being the wife of the deceased and son

of the deceased, respectively, are interested witnesses, does not appeal

to us. There is a clear distinction in law between a related witness and

an interested witness. The Hon'ble Supreme Court of India in Md.

Rojali Ali v. The State of Assam reported as AIR 2019 SC 1128 held:

"10. As regards the contention that all the eye-witnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an 'interested' witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between 'interested' and 'related' witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki, (1981) 2 SCC 752; Amit v. State of Uttar Pradesh, (2012) 4 SCC 107; and Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298). Recently, this difference was reiterated in Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549, in the following terms, by referring to the three-Judge bench decision in State of Rajasthan v. Kalki (supra):

"14. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be "interested" ..."

11. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the

offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab, 1954 SCR 145, wherein this Court observed:

"26. 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..."

12. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. Union Territory of Pondicherry, (2010) 1 SCC 199:

"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. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."

"

In light of the above and on a minute and purposeful reading of

their testimony, PW-1 & PW-4 cannot be termed as interested

witnesses, nor can their testimony be discarded on that premise.

18. In respect of non-establishment of Motive, it has been held by

the Hon'ble Supreme Court of India that motive, is not a sine qua non,

in particular when there is trustworthy direct evidence regarding

commission of a crime. It is relevant to point out the judgment in

Bipin Kumar Mondal v. State of West Bengal reported as (2010) 12

SCC 91:

"19. It is settled legal proposition that even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only by the reason of the absence of motive, if otherwise the evidence is worthy of reliance. (Vide Hari Shankar v. State of U.P, (1996) 9 SCC 40; Bikau Pandey and Ors. v. State of Bihar, (2003) 12 SCC 616; and Abu Thakir and Ors. v. State of Tamil Nadu, (2010) 5 SCC 91).

20. In a case relating to circumstantial evidence, motive does assume great importance, but to say that the absence of motive would dislodge the entire prosecution story is giving this one factor an importance which is not due. Motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy.(Vide Ujagar Singh v. State of Punjab, (2007) 13 SCC 90)."

19. It is rather noted that PW-1, in her cross-examination, attributed

motive to the appellant by stating that roughly 15 - 20 days prior to the

present incident, a quarrel had taken place with the appellant, wherein

he had threatened to kill the husband of PW-1 (the deceased) in two

months.

20. We therefore observe that the argument with respect to non-

proving of motive, must also fail in the light of the direct evidence

elaborated herein before.

21. Coming to the aspect of medical evidence and the role of the

accused, it is relevant to examine the post mortem report coupled with

the testimony of Dr. K.L. Sharma, PW-10, the doctor who conducted

the post mortem on the body of the deceased, as well as the factum

that, the appellant acted in furtherance of common intention under

section 34 IPC, along with the co-accused.

22. In the post mortem report, the relevant opinion is as follows:

"External Injuries:

1. ...

2. ...

3. Small semilunar abrasion over right side middle of neck 1 c.m.

4. Leniar abrasion vertical over left side axillary fold in front of it 1 c.m. length.

Internal Injuries:

Head:

a) Scalp tissue: cut in whole thickness upto right temporal muscle.

...

OPINION:

-Cause of death is cardiac tamponade consequent to injury No.2, rapidly following injury.

-All injuries were antemortem in nature and are inflicted by other party.

-Injury No. 2 was sufficient to cause death in the ordinary course of nature rapidly.

-Injury No. 1 & 2 are caused by sharp, penetrating cutting weapon which is flat and straight weapon. Injury No. 2 & 4 have been caused during scuffle, with other party."

23. During the testimony of PW-10 in court, the seal of the FSL,

which contained the paya of the cot [Ex. P2], was opened and put

specifically to her, to which she stated that Injury No. 4 as mentioned

in the post mortem report, could be caused by the paya [Ex. P2]. It is

also mentioned in the post mortem report that injury No. 2 & 4 were

caused during the scuffle. Therefore, the blow by the leg of the cot has

been connected with the injury inflicted upon the deceased during the

scuffle.

24. The testimony of PW-10 along with the fact that the head skin

was cut up to right temporal muscle area, shows the intent of the

appellant, as well as the nature of the injury inflicted upon the

deceased, at the relevant time.

25. The intent is also unambiguous, in light of the fact that both

PW-1 & PW-4 have testified that the co-accused Munna, stabbed the

deceased with the knife, and the appellant struck the deceased once

with the leg of the cot, which was brought by him subsequent to the

exhortation.

26. The appellant, along with his co-accused, were also convicted

under section 302 read with section 34 IPC, for their common

intention in the present crime. The act of the accused of striking the

deceased with the leg of the cot, contemporaneous with the co-accused

stabbing the accused with the knife, clearly demonstrate the intent and

role of the accused in the present crime.

27. We also refer to the observations of the Hon'ble Supreme Court

of India in Palakom Abdul Rahiman v. The Station House Officer

Badiadka Police Station reported as AIR 2019 SC 1891, wherein the

effect of a conviction under section 302 read with section 34 IPC, has

been observed as follows:

"The application of principles enunciated in Section 34 Indian Penal Code, when an Accused is convicted Under Section 302 read with Section 34 Indian Penal Code, in law means that the Accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. As was observed by this Court in Chinta Pulla Reddy and others case (supra), Section 34 is applicable even if no injury has been caused by the particular Accused himself."

28. The judgment of the Supreme court of Thaman Kumar v. State

(Supra), cited by the counsel for the appellant, as a corollary, does not

come to the aid of the appellant, as we do not find any substantial

variation between the medical evidence and ocular evidence, as

examined by us above. Even otherwise, it is settled law that unless the

oral evidence is totally irreconcilable with the medical evidence, it has

primacy. [Ref: Abdul Sayeed (Supra)]

29. We therefore hold that, in light of the medical evidence,

statements of PW-1, PW-4 and PW-10 and the common intention of

the appellant with the co-accused, under section 34 IPC, clearly

demonstrate the guilt of the accused in commission of the present

crime.

30. As a last alternative argument, learned counsel for the appellant

made a plea on behalf of the appellant that, the appellant's conviction

may be converted from one of conviction under section 302 to that of

section 304 IPC.

31. We are not inclined to accept the same. The Appellant acted

consequent upon the exhortation given by his co-accused, to kill the

deceased, subsequent to which, he went and brought the leg of the cot

and struck the deceased on his head with it. The appellant stands

convicted not only for his act, but also in light of the contemporaneous

acts of his co-accused. He has acted in furtherance of common

intention along with his co-accused and the intent to cause death of the

deceased is clear.

32. In the present circumstances the case of the appellant, we

observe, do not fall under any of the exceptions provided under section

300 IPC, and the conviction of the appellant under section 302 IPC,

resultantly, cannot be converted to that of Section 304 IPC.

33. We consequently, find ourselves in agreement with the findings

returned by the trial court, which in our considered view, do not

warrant any interference or modification.

34. Therefore, the judgment dated 21.9.2001 and the order on

sentence dated 24.9.2001, respectively, are upheld and the present

appeal is accordingly dismissed. However, there shall be no order as

to costs.

35. The appellant's bail bond stand cancelled and he is directed to

surrender before the jail authorities within 7 days.

36. The Trial Court Record be sent back forthwith.

37. Copy of the judgement be sent to the Jail Superintendent, Tihar

Jail and also be sent for updation of the records.

SIDDHARTH MRIDUL (JUDGE)

BRIJESH SETHI (JUDGE) AUGUST 21, 2018 dn /ym