Delhi High Court
Nikhil Saxena vs State (N.C.T Of Delhi) on 9 December, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 1244/2018
NIKHIL SAXENA ..... Appellant
Through Mr. Jai Khanduja, Advocate.
versus
STATE (N.C.T OF DELHI) ..... Respondent
Through Ms. Aashaa Tiwari, APP for the State
with Insp. Anil Kumar and ASI Ajit
Kumar, PS Adarsh Nagar.
WITH
+ CRL.A. 1249/2018
VISHAL SONKAR ..... Appellant
Through Mr. M.L. Yadav, Advocate.
versus
STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Through Ms. Aashaa Tiwari, APP for the State
with Insp. Anil Kumar and ASI Ajit
Kumar, PS Adarsh Nagar.
AND
+ CRL.A. 95/2019
PUNIT @ RAJU ..... Appellant
Through Mr. Sahil Talwar, Advocate with
Mr. Chander Kant and Mr. Nikhil
Garg, Advocates.
versus
CRL. A. Nos.1244/2018, 1249/2018, 95/2019 Page 1 of 33
THE STATE GOVT. OF N.C.T OF DELHI ..... Respondent
Through Ms. Aashaa Tiwari, APP for the State
with Insp. Anil Kumar and ASI Ajit
Kumar, PS Adarsh Nagar.
% Reserved On : 02nd November, 2019
Date of Decision: 09th December, 2019
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
JUDGMENT
MANMOHAN, J:
1. Criminal Appeal Nos.1244/2018, 1249/2018 and 95/2019 have been
filed by appellants-convicts Nikhil Saxena, Vishal Sonkar as well as Punit
@ Raju respectively challenging the judgment dated 16th November, 2018
and the order dated 19th November, 2018 passed by the Additional Sessions
Judge/Pilot Court, North District, Rohini Courts, Delhi in Sessions Case No.
482/2018 arising out of FIR No.101/2018 under Sections 302/393/397/34 of
the Indian Penal Code (hereinafter referred to as 'IPC') and Sections 25/27
Arms Act registered with Police Station Adarsh Nagar. The appellants-
convicts have been convicted under Sections 302/393/34 IPC and sentenced
to undergo rigorous imprisonment for life with fine of Rs. 10,000/- for
offence punishable under Section 302 read with Section 34 IPC as well as
rigorous imprisonment for five years with fine of Rs. 5,000/- for offence
punishable under Section 393 read with Section 34 IPC. The appellant-
convict Punit @ Raju had also been convicted under Section 25 Arms Act
and sentenced to rigorous imprisonment for one year with fine of Rs. 5,000/-
CASE OF THE PROSECUTION
2. The case of prosecution in brief is that Naresh (deceased) was
working at Bharat Petroleum Petrol Pump and on 13th April, 2018, at about
1.00 A.M, he had gone to bring tea from a nearby stall for his co-workers.
When he did not return for about twenty-twenty five minutes, two of his co-
workers - Devender Pratap Mishra (PW-1) and Yashpal (PW-2) went to look
for him. After walking some distance, they saw Naresh lying on the ground
and three people standing near him. After seeing Devender Pratap Mishra
(PW-1) and Yashpal (PW-2), those three people fled on their bike, which
was of red colour and having green colour on its engine while shouting
'bhago-bhago'. Devender Pratap Mishra (PW-1) and Yashpal (PW-2)
immediately rushed towards Naresh, and they saw that he was conscious and
had an injury on his chest. He told them that the three boys had tried to
snatch his mobile phone and when he resisted, two boys held him while the
third stabbed him using a knife. Thereafter, Naresh was brought to the petrol
pump, the police was informed and he was shifted to a hospital in a PCR
Van. Mr.Naresh succumbed to his injuries at AIIMS Trauma Centre on the
same day at about 8 a.m.
FINDING OF THE TRIAL COURT
3. The Trial Court convicted all the appellants-convicts under Sections
302/393/34 IPC and appellant-convict [email protected] additionally under
Section 25 Arms Act. However, in the absence of evidence to establish who
had used the weapon of offence, appellant-convict Punit @ Raju was
acquitted of the charge under Section 397 IPC. The conclusion of the Trial
Court is reproduced hereinbelow:-
―128. It has not been proved on record as to who out of these
three accused persons stabbed Naresh and used the knife in
commission of offence. However, the dying declaration and other
circumstances shows that all three were having common
intention to rob Naresh and when Naresh resisted they stabbed
him resulting into his death. The post mortem report
Ex.PW23/P40 clearly shows that injury No.1 was sufficient to
cause death in ordinary course of nature. Keeping in view the
above discussion as the prosecution has failed to prove and
establish as to who used the weapon hence Punit is acquitted u/s
397 IPC. But keeping in view the dying declaration and other
circumstances all the accused are convicted u/s 393 r/w 34 and
302 r/w 34 IPC. Accused Punit is also held guilty u/s 25 Arms
Act for being found in possession of button actuated knife.‖
ARGUMENTS ON BEHALF OF THE APPELLANT-CONVICT NIKHIL
SAXENA
4. Mr. Jai Khanduja, learned counsel for the appellant-convict Nikhil
Saxena stated that the FIR in the present case had been registered on the
basis of DD No. 6A and not as per the statements made by any of the
eyewitnesses. He pointed out that SI Tej Singh (PW-24), who had gone to
the scene of crime i.e. Bharat petroleum outlet had deposed that he had not
found any eyewitness to the incident. Therefore, according to him, Devender
Pratap Mishra (PW-1) and Yashpal (PW-2) had been introduced at a
subsequent stage to solve a blind murder case.
5. Learned counsel for the appellant-convict Nikhil Saxena contended
that the petrol pump, where the deceased used to work, was covered by
CCTV cameras. He stated that though the scaled site plan (Ex.PW-6/P-11)
showed the presence of a CCTV pole, but the police had not seized the
CCTV digital video recorder. In support of his contention, he relied upon the
testimonies of Devender Pratap Mishra (PW-1) and Yashpal (PW-2),
wherein they both had stated that CCTV cameras were installed at the petrol
pump. He submitted that the said CCTV footage was the 'best evidence'
which the prosecution had failed to produce. In support of his submission he
relied upon the judgment in Tomaso Bruno and Anr. Vs. State of U.P.
(2015) 7 SCC 178, wherein the Supreme Court has held as under:-
―21. To invoke Section 106 of the Evidence Act, the main point to
be established by the prosecution is that the accused persons
were present in the hotel room at the relevant time. PW 1 Ram
Singh, Hotel Manager stated that CCTV cameras are installed in
the boundaries, near the reception, in the kitchen, in the
restaurant and all three floors. Since CCTV cameras were
installed in the prominent places, CCTV footage would have
been the best evidence to prove whether the accused remained
inside the room and whether or not they have gone out. CCTV
footage is a strong piece of evidence which would have indicated
whether the accused remained inside the hotel and whether they
were responsible for the commission of the crime. It would have
also shown whether or not the accused had gone out of the hotel.
CCTV footage being a crucial piece of evidence, it is for the
prosecution to have produced the best evidence which is missing.
Omission to produce CCTV footage, in our view, which is the
best evidence, raises serious doubts about the prosecution case.‖
6. He also pointed out that since there were multiple contradictions in
the testimonies of Ravi Kumar Jha (PW-14), SI Tej Singh (PW-24) and
Insp. Anil Kumar (PW-30) regarding the presence of CCTV cameras, the
same indicated that the police had intentionally not seized the CCTV
footage.
ARGUMENTS ON BEHALF OF THE APPELLANT-CONVICT VISHAL
SONKAR
7. Mr. M.L. Yadav, learned counsel for the appellant-convict Vishal
Sonkar stated that no specific role had been attributed to Vishal Sonkar in
the alleged incident and nothing incriminating had been recovered from him
which could connect him to the crime.
8. He contended that the prosecution's case was that the appellants-
convicts had tried to snatch the mobile phone of the deceased but
admittedly, the said mobile phone had not been seized or produced in Court.
He emphasised that in absence of the said mobile phone, the prosecution had
failed to prove the motive of the crime.
9. Learned counsel for the appellant-convict Vishal Sonkar stated that as
per the prosecution's story, Devender Pratap Mishra (PW-1) and Yashpal
(PW-2) had taken the deceased to the petrol pump and from there they had
accompanied him to the hospital in the PCR van. He pointed out that despite
the aforesaid fact, the said witnesses had deposed that their clothes were not
bloodstained.
10. He emphasised that the deceased had not made any dying declaration
to any police officer who had accompanied him to the hospital in the PCR
van. He contended that neither Devender Pratap Mishra (PW-1) nor Yashpal
(PW-2) had told any other police official about the alleged dying declaration
made by the deceased. According to him, in view of the abovementioned
facts, the testimonies of Devender Pratap Mishra (PW-1) and Yashpal (PW-
2) were not trustworthy and consequently, the presence of the appellants-
convicts had not been proved and the alleged dying declaration was also
unreliable. In support of his contention, he relied upon the following
judgments:-
A. Heikrujam Chaoba Singh vs. State of Manipur, (1999) 8 SCC 458,
wherein it has been held as under:-
―3. An oral dying declaration no doubt can form the basis of
conviction, though the courts seek for corroboration as a rule of
prudence. But before the said declaration can be acted upon, the
court must be satisfied about the truthfulness of the same and that
the said declaration was made by the deceased while he was in a
fit condition to make the statement. The dying declaration has to
be taken as a whole and the witness who deposes about such oral
declaration to him must pass the scrutiny of reliability. We are,
therefore, called upon to examine the evidence of PWs 2 and 5 to
find out whether the courts below were justified in relying upon
their testimony and in believing the statements alleged to have
been made by the deceased while being carried to the hospital in
ambulance and thereafter while he was an indoor patient in the
hospital itself. So far as the statement in the ambulance is
concerned, it was made to PW 2 who is the brother of the
deceased. PW 2 while he was coming in a jeep towards the scene
of occurrence saw the ambulance van and, therefore, thought that
his younger brother Hera Singh was possibly being taken in the
same ambulance van and coming to know that his guess was
correct boarded the ambulance van. He stated in his evidence that
on enquiry about the injuries sustained by his brother, Hera Singh,
the injured told him that he had been given blows by Heikrujam
Chaoba Singh with a dao, Yamlemba Paka Singh with a hockey
stick and another person with a lathi. In his cross-examination, he
candidly admitted that there were three or four persons inside the
ambulance when his brother told him the names of his assailants
but none of those disinterested persons have been examined by the
prosecution to corroborate the said PW 2. He also admitted in his
cross-examination that those persons who were in the ambulance
were present near him when his brother stated the words and yet
the prosecution had not offered any explanation as to why none of
those persons were examined who could have been disinterested
persons deposing about the dying declaration said to have been
made by the deceased inside the ambulance while he was being
carried to the hospital. While according to the evidence of PW 2
the deceased told him that the appellant Chaoba Singh gave him a
dao-blow but according to PW 5 to whom the deceased made a
declaration in the hospital, the deceased told him that Chaoba
Singh, the appellant held a thang and Paka Singh had a hockey
stick. Intrinsically, therefore the so-called dying declaration made
by the deceased to PW 2 is different from the declaration made by
the deceased to PW 5. PW 2 happens to be the elder brother of the
deceased. In the aforesaid premise, we do not think it safe to hold
the evidence of PW 2 to be reliable and, therefore, the oral dying
declaration as deposed to him by him cannot be pressed into
service for bringing home the charges levelled against the accused
appellant.‖
B. State of Gujarat v Bharatbhai Balubhai Lad and Ors, 2005 SCC
OnLine Guj 231, wherein it has been held as under:-
―27. It was also the case of the prosecution that dying declaration
made by deceased before PW-3, Nileshbhai Patel, was sufficient to
connect the accused with the alleged crime. Before the oral dying
declaration of the deceased is accepted by the Court, the decision
of the Supreme Court in the matter of Haikrujam Chaoba
Singh v. State of Manipur, reported in 1999 AIR SCW p. 4181 is
required to be considered. Para 3 of the said judgment reads as
under:--
―para 3 : Any oral dying declaration, no doubt, can form the
basis of conviction, though Court seek for corroboration as a
rule of prudence. But before the said declaration can be
acted upon, the Court must be satisfied about the truthfulness
of the same and that the said declaration was made by the
deceased while he was in a fit condition to make the
statement. The dying declaration has to be taken as a whole
and the witness who deposes about such oral declaration to
him must pass the scrutiny of reliability.‖
28. Oral dying declaration has been rightly disbelieved by the
Trial Court on the following circumstances:--
(a) PW-3, Nileshbhai Umedbhai Patel, Ex. 25 is the person,
who, with the help of Halpati, broke open the door and poured
water on the body of the deceased and at that relevant point of
time, on inquiry, the deceased is said to have made a statement
before Nileshbhai that she cannot bear any more and that is
why she has taken this extreme step. Nileshbhai, accompanied
PW-1, Vinodbhai Mistry, to the Police Station. When PW-1,
Vinodbhai Mistry, gave the first information report, Nileshbhai
was very much present with him in the Police Station but
Nileshbhai did not state anything about deceased making such a
statement before him and that is the reason why there is no
mention of any such oral dying declaration or statement in the
FIR.
(b) The evidence of PW-2, Dr. Ajaykumar Jankiprasad Sharma,
Exh. 22, is to the effect that the whole body of the deceased was
congested and stiff. Eyes were closed. Tongue was protruding.
All over the body right from top to bottom there were 3rd
degree 100% burns. According to him, the death must be
instantaneous and considering the nature of burn injuries all
over the body deceased could not have uttered a single word.
(c) There is contradiction in the evidence of PW-2, Nileshbhai
Patel, Ex. 25 and PW-2, 4, Geetaben Mistry, Ex. 26, so far as
the so called oral dying declaration is concerned.
(d) PW-4, Geetaben, the mother of deceased, has admitted that
when she tried to inquire with her daughter as to why did she
take such a step, she was unconscious and was not able to talk.
(e) There is contradiction between the evidence of PW-3,
Nileshbhai Patel, Ex. 25 and the evidence of PW-5, Jigishaben
Mistry, Ex. 27 so far as the exact words uttered by the deceased
at the relevant point of time is concerned.‖
11. He lastly stated that the appellant-convict Vishal Sonkar was entitled
to the benefit of doubt as the prosecution had failed to complete the chain of
events in the present case.
ARGUMENTS ON BEHALF OF THE APPELLANT-CONVICT PUNIT @
RAJU
12. Mr. Sahil Talwar, learned counsel for the appellant-convict Punit @
Raju contended that the investigating officer had deliberately not recorded
the statement of the deceased despite the fact that the deceased had been
declared fit for statement by the doctor as per the MLC (Ex.PW-15/P-20).
13. He stated that the place of occurrence had been shifted as it was based
upon the oral evidence of Devender Pratap Mishra (PW-1) and Yashpal
(PW-2) only and had not been corroborated by any scientific evidence. He
emphasised that the place of occurrence had neither been photographed nor
inspected by the Crime Team and no bloodstained earth had been lifted.
[
ARGUMENTS ON BEHALF OF THE STATE.
14. Per contra, Ms. Aashaa Tiwari, learned APP for the State stated that
the presence of appellants-convicts had been proved by the testimonies of
Devender Pratap Mishra (PW-1) and Yashpal (PW-2). She further stated that
the tea stall owner Sunil (PW-13) had corroborated the version of Devender
Pratap (PW-1) and Yashpal (PW-2).
15. She contended that as the appellants-convicts had been unsuccessful
in taking the mobile phone of the deceased, they had stabbed him. She stated
that no question regarding the said mobile phone was put to the father of the
deceased - Ram Kumar (PW-5) and consequently, the issue of non-
production of the phone cannot be raised at this stage.
16. Learned APP for the State contended that the manager of the Bharat
Petroleum - Ravi Kumar Jha (PW-14) had testified that CCTV camera had
not been installed at the time of the incident and even the investigating
officer had deposed that the CCTV camera was not working. She further
contended that there was no evidence on record to show that there was any
camera on the CCTV pole shown in the scaled site plan (Ex.PW-6/P-11) or
if that camera was covering the place of occurrence. Consequently, she
stated that in absence of such evidence, it cannot be said that the police had
withheld the best evidence from the Court.
17. She stated that appellants-convicts Vishal Sonkar and Nikhil Saxena
had been apprehended on 15th April, 2018 while they were travelling on the
motorcycle bearing registration No. DL3S BB 4456 on the front number
plate and DL3S BB 445 on the rear number plate. She pointed out that the
said motorcycle was of red colour but the engine was of green colour. She
further stated that the said motorcycle had been seized vide seizure memo
(Ex. PW-27/P-51) in the presence of Constable Ankit (PW-27), Constable
Jang Bahadur (PW-29) and Insp. Anil (PW-30) and duly identified by
Devender Pratap Mishra (PW-1) and Yashpal (PW-2).
18. Learned APP for the State contended that the aforesaid motorcycle
had been registered in the name of the original owner i.e. Mohd. Kalwa
(PW-9) and the same had been proved by the transport authority officer-
Om Prakash (PW-3) who had exhibited the registration record (Ex.PW-3/
P-1) of the motorcycle. She further contended that Mohd. Kalwa (PW-9) had
sold the motorcycle to Sher Singh (PW-10), who in turn sold it to Gulshan
(PW-11), who finally sold it to appellant-convict Nikhil Saxena. She stated
that the original owner and all the subsequent purchasers had testified before
the Court and identified the motorcycle. The relevant portions of the
testimonies of Om Prakash (PW-3), Mohd. Kalwa (PW-9), Sher Singh
(PW-10) and Gulshan (PW-11) are reproduced hereinbelow:-
A. Testimony of Om Prakash (PW-3)
―......I brought the particulars of registration of this motorcycle
in the name of Mohd. Kalwa and the computer generated record
is Ex.PW3/P-1 bearing the signature of Sh. Naveen Kochar at
point A. Naveen Kochar is working as a Inspector in the
authority.....‖
B. Testimony of Mohd. Kalwa (PW-9)
―I was owner of motorcycle no.DL3S BB 4456 Bajaj Pulsar
which was sold to Sher Singh for sum of Rs.17,000/- and I
signed the documents and I also handed over the RC of this
motorcycle to Sher Singh. I was the registered owner of the
aforesaid motorcycle.‖
C. Testimony of Sher Singh (PW-10)
―In the year 2010, in the last months may be 10-11 month I
purchased motorcycle no.DL3S BB 4456 Bajaj Pulsar from
Mohd. Kalwa R/o Jamia Nagar, Okhla Delhi who signed the
documents in this regard and handed over the RC of this
motorcycle.......
In the year 2014, I sold the said vehicle to Gulshan who is
my neighbourer for a sum of Rs.13,000/- and I also handed over
the original RC......
I can identify the motorcycle if shown to me.
xxx xxx xxx
Witness has correctly identified the motorcycle already
Ex.M O-1.‖
D. Testimony of Gulshan (PW-11)
―In the year 2014, I purchased motorcycle no. DL3S BB 4456
Bajaj Pulsar from my neighbourer Sher Singh. At the time of
purchasing, Sher Singh handed over the RC of this motorcycle
to me......
In the year 2016, in the month of October and November I
sold the said vehicle to Nikhil S/o Narayan Singh who is my
neighborer for a sum of Rs.7,000/- and I also handed over the
original RC to him.....
xxx xxx xxx
I can identify the motorcycle if shown to me.
xxx xxx xxx
Witness has correctly identified the motorcycle already
Ex.M O-1.‖
19. Learned APP for the State further stated that on 20th February, 2017
appellant-convict Nikhil Saxena had filed a complaint regarding some lost
documents pertaining to the motorcycle bearing registration No. DL3S BB
4456 and he had given a copy of the said complaint (Ex. PW-11/P-13) to
Gulshan (PW-11). She further stated that Gulshan (PW-11) had produced
the same in Court and it had been proved by ASI Bajrang Lal (PW-12).
According to her, the said complaint and the testimony of Gulshan (PW-11)
proved that appellant-convict was in possession of the motorcycle bearing
registration No. DL3S BB 4456 on the day of the incident. The relevant
portions of the testimonies of Gulshan (PW-11) and ASI Bajrang Lal (PW-
12) are reproduced hereinbelow:-
A. Testimony of Gulshan (PW-11)
―On 20.02.2017, Nikhil filed a complaint with regard to
missing of some documents. I gave the copy of complaint by
which the complainant Nikhil S/o Narayan lodged the report.
The report to the police with respect to article/document lost in
Delhi is Ex.PW11/P-13 bearing my signature at point A. The
said report was taken in possession by the police vide seizure
memo Ex.PW11/P-14 bearing my signature at point A. These
documents were given to me by Nikhil and I gave the same to the
police.‖
B. Testimony of ASI Bajrang Lal (PW-12)
―I have brought the summoned record pertaining to LR
No.167610/2017 dated 20.02.2017. As per record this report was
lodged by Nikhil S/o Narayan regarding lose of RC, DL and
pollution of vehicle no.DL3S BB 4456. I have brought the
certified copy of the report which is already Ex.PW11/P-13 and
now Ex.PW12/P-15 bearing the signature of Inspector Shivaji
Chauhan at point A.‖
20. Learned APP for the State stated that as per the post mortem report
(Ex.PW-23/P-40) the cause of death was opined to be ―haemorrhagic shock
consequent upon injury no.1. Injury no.1 is ante mortem in nature, caused
by sharp or pointed object or weapon‖ and the pleural/chest cavities of the
deceased had about 2.5 litres of blood. Consequently, she stated that despite
heavy blood loss, not a lot of blood of the deceased had spilled out on the
roads.
21. She further stated that the weapon of offence i.e. knife (seized vide
seizure memo-Ex.PW-27/P-58) had been recovered pursuant to the
disclosure of the appellant-convict Punit @ Raju. She pointed out that as per
the CFSL report (Ex.PW-30/P-70) the DNA of the blood found on the
recovered knife had matched with the DNA of the deceased.
22. She emphasised that even Dr. Suraj Ohal (PW-23) in his subsequent
opinion (PW-23/P-42) regarding the weapon of offence had opined that
injury No. 1 mentioned in post mortem report was possible by the recovered
knife.
23. Learned APP for the State stated that Devender Pratap Mishra (PW-1)
and Yashpal (PW-2) had consistently deposed that the deceased had told
them that one of the appellants-convicts had stabbed him while the other two
had held him. She submitted that it was settled law that a person can be
convicted on the basis of a dying declaration if the same was reliable and
voluntary.
24. Thus, according to her, the prosecution had established all the
material circumstances and the chain of events was complete.
COURT'S REASONING
AS THE PRESENT CASE IS BASED ON CIRCUMSTANTIAL EVIDENCE,
IT IS ESSENTIAL TO OUTLINE THE CONDITIONS THAT HAVE TO BE
FULFILLED BEFORE SUCH A CASE CAN BE SAID TO BE FULLY
ESTABLISHIED.
25. Having heard the learned counsel for the parties and after going
through the record, this Court is of the view that the present case is based on
circumstantial evidence as there is no eye witness to the incident of murder.
Consequently, it is essential to outline the conditions that have to be fulfilled
before such a case can be said to be fully established. The Supreme Court in
Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116
after referring to its earlier decision in Hanumant, Son of Govind
Nargundkar vs. State of Madhya Pradesh, 1952 SCR 1091 stated the five
golden principles, constituting the Panchsheel, of proof of a case based on
circumstantial evidence as follows:-
―(1) the circumstances from which the conclusion of guilt is to
be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned ―must or should‖ and not ―may be‖
established. There is not only a grammatical but a legal
distinction between ―may be proved‖ and ―must be or should
be proved‖ as was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973
SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations
were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]
―Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict and
the mental distance between ‗may be' and ‗must be' is long
and divides vague conjectures from sure conclusions.‖
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except that
the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability the act must have been done by the
accused.‖
(emphasis supplied)
THIS COURT IS OF THE VIEW THAT DEVENDER PRATAP MISHRA
(PW-1) AND YASHPAL (PW-2) WERE NATURAL WITNESSES AND
THEIR TESTIMONIES ARE CLEAR, COGENT, CONSISTENT,
CREDIBLE, TRUSTWORTHY AND HAVE BEEN CORROBORATED BY
OTHER EVIDENCE AND MATERIAL ON RECORD. ACCORDINGLY,
THE PRESENCE OF ALL THE APPELLANTS-CONVICTS AT THE PLACE
OF OCCURRENCE ON THE DATE OF THE INCIDENT IS PROVED.
26. This Court is further of the opinion that it is essential to analyse the
testimonies of Devender Pratap Mishra (PW-1) and Yashpal (PW-2) as they
were the last persons who had seen the deceased with the appellants-
convicts. The relevant portion of their testimonies is reproduced
hereinbelow:-
A. Testimony of Devender Pratap Mishra (PW-1)
―On that night at about 1am, Naresh went to the tea stall
for bringing tea for us.....When Naresh did not return for 15-20
minutes, I alongwith Yashpal went to the side of tea stall behind
petrol pump near transport centre. When we went towards the
back side of petrol pump, tea stall and we had walked upto 50
meters, we saw Naresh was lying on the ground. We also saw
three boys were standing near him started raising noise
―Bhago- Bhago‖ and those three boys ride on the motorcycle
and ran away. Naresh informed us that those three boys were
trying to snatch his mobile phone and when he resisted, two
boys caught hold of him and third boy stabbed him with knife. I
with the help of Yashpal brought the injured Naresh to our
Petrol pump and the other employees gathered over there. I
made a call to the police at 100 number. Rahul also made a
call to police. After sometime PCR van reached there and
injured Naresh was taken to BJRM Hospital in PCR van. I
alongwith Yashpal accompanied with injured Naresh in PCR
van to the hospital. On the way to the hospital, in the PCR,
Naresh requested me to make a call to his father from his
mobile phone. I find out the mobile number of father of Naresh
from his mobile phone. I made a call to the father of Naresh
from my mobile phone and informed him that Naresh had been
stabbed and we are taking him to BJRM Hopsital. In the BJRM
Hospital, the Doctor examined Naresh and he was given first
aid and Naresh was advised to be taken to Dr. BSA Hospital. In
the same PCR, we again took injured Naresh to Dr. BSA
Hospital where Naresh was admitted and medically examined.
Later on we came to know that injured expired in AIIMS
Hospital. I met the police at our petrol pump where I pointed
out the place and police prepared site plan. We could not noted
down the registration no. of the motorcycle on which those
three assailants ran away. The motorcycle was of red coloured
and having green colour on its engine. I can identify those
three boys, if shown to me as I had seen them running away on
motorcycle.‖
xxx xxx xxx
.......Witness has correctly identified all the three accused
persons.
xxx xxx xxx
.....Witness has correctly identified the motorcycle Ex.M
O-1.
xxx xxx xxx
Q. Whether you found the tea also lying near Naresh?
A. We found polythene containing tea lying there in torn
condition.
I did not notice any blood was lying on the spot.... Police
prepared the site plan of the spot on my pointing out......Neither
my nor Yashpal's clothes were stained with blood while
carrying Naresh to Petrol pump. Vol. I was catching hold of
one hand of Naresh and Yashpal was catching hold of other
hand of Naresh and Naresh walked upto petrol pump.......I left
Ambedkar hospital at about 4.15 AM and reached the petrol
pump at about 5 AM.......Police from PS Adarsh Nagar met me
first time on 13.04.18 at 8 PM at petrol pump. Before 8 PM I
had not gone to PS to tell that I had seen three boys standing
near Naresh and fleeing on motorcycle.‖
B. Testimony of Yashpal (PW-2)
―.......On that night, at about 1AM, Naresh one of our colleague
went to take tea for other employees from the tea shop near
transport centre. He did not return to the petrol pump for about
15-20 minutes. I alongwith Devender Pratap Mishra went to
the tea stall behind our petrol pump. When we were
approaching towards tea shop and left our petrol pump. We
were about 50 meters away from the petrol pump. We saw
Naresh was lying on the ground and three boys were standing
near him. After seeing us those three boys ran away towards
the motorcycle having red colour and green colour on its
engine. Those three boys were saying ―Bhago-Bhago‖. We
reached near Naresh who informed us that these three boys who
were running on the motorcycle had caught and stabbed him.
Naresh informed us that two of the boys caught hold him and
one of the boy stabbed him with knife. (objected to by defence).
We were unable to noted down the registration number of
motorcycle.
I with the help of Devender brought injured Naresh to
our petrol pump where Rahul and Devender informed the police
at 100 number. After few minutes PCR van reached there and
injured Naresh was taken to BJRM Hospital. I along with
Devender accompanied injured Naresh in the PCR Van. On the
way to the hospital, injured Naresh requested us to inform his
father about the incident and the mobile number of his father is
in the mobile phone contact list of Naresh. Devender Pratap
searched the mobile number of father of Naresh from his mobile
phone. Devender made a call to the father of Naresh from his
mobile and informed him about the incident. In the BJRM
hospital, the injured Naresh was given medical first aid and he
was taken to Dr. BSA Hospital in the same PCR van. We also
accompanied injured Naresh in the same PCR and reached BSA
hospital where Naresh was admitted and medically examined.
Later on we came to know that Naresh expired in AIIMS
hospital. I had seen those three boys who were standing near
Naresh and ran away on the red colour motorcycle. Naresh
informed that those three boys had tried to snatch his mobile
and when he resisted, he was stabbed by one of the boy and two
other caught hold him. I can identify those three boys.
xxx xxx xxx
.....Witness has correctly identified the accused persons present
in the court today......Witness has correctly identified the
motorcycle already Ex.M O-1.
xxx xxx xxx
......First of all Rahul made a call to the police at 100 number. I
don't know thereafter to whom Rahul made a call. In the BSA
hospital, Manager Ravi reached and we left to the petrol pump.
I remained at the petrol pump upto 7 AM. I don't know at what
time Devender left the petrol pump. Devender may have left
about 15-20 minutes prior to me.‖
(emphasis supplied)
27. Perusal of the aforesaid testimonies reveals that the aforesaid
witnesses have given similar, if not identical, description of events that they
had seen when they had gone looking for the deceased.
28. The fact that the deceased had gone to buy tea also finds
corroboration from the testimony of tea stall owner Sunil (PW-13) who had
deposed that the deceased had come to his stall on the date of the incident.
The relevant portion of the testimony of Sunil (PW-13) is reproduced
hereinbelow:-
A. Testimony of Sunil (PW-13)
―In the intervening night of 12-13 April 2018, Naresh
came to my tea stall and purchased five tea for employees of
petrol pump. My shop is situated behind the petrol pump. I
gave five tea to Naresh who left my shop and went towards
petrol pump.....‖
(emphasis supplied)
29. Devender Pratap Mishra (PW-1) had also stated in his testimony that
he had found a polythene containing tea lying in torn condition near the
injured body of the deceased.
30. Further, Devender Pratap Mishra (PW-1) and Yashpal (PW-2) had
deposed that the deceased had told them that the appellants-convicts had
tried to snatch his mobile phone and when he resisted, one of them had
stabbed him with a knife while the other two held him. The said part of the
testimony is corroborated by the post mortem report (Ex.PW-23/P-40) of the
deceased wherein it is stated that the deceased had a stab wound over the left
side of his chest. The relevant portion of the post mortem report is
reproduced hereinbelow:-
―Department of Forensic Medicine & Toxicology
JaiPrakash Narayan Apex Trauma Centre
All India Institute of Medical Sciences, Raj Nagar, New Delhi-110029
xxx xxx xxx
7. Injures (briefly but accurately describe all)
(State whether injures are ante-mortem with reasons)
Ante-mortem injures:-
1) Vertically placed a stab wound of size 3cm X 0.5 cm X
cavity deep was present over the left side of chest, situated 128 cm
from right heel, 10.5 cm from sternal notch and 23 cm from right
shoulder tip. The stabbing weapon passed through skin,
subcutaneous tissue, muscles of thorax, left sided 4th rib, Pleura,
Paricardium and upper part of right ventricle where a defect of 2
cm X 0.5 cm X cavity deep (after removing stitches), was present.
The wound was wedge shaped, with regular margins and edges.
The stabbing weapon passed through and directed upwards,
outwards, inwards, towards right. Signs of surgical interventions:-
1) 41 cm horizontal thoracotomy wound was present. It was
stapled wound and situated 2 cm below the stabbed wound.
2) Stitched wound of size 2 cm was present over the right
ventricle.
xxx xxx xxx
C-CHEST (THORAX)
xxx xxx xxx
5. Pleura cavities - contained about 2.5 litres of blood.
xxx xxx xxx
K. OPINION: The cause of death to the
Best of my knowledge and belief.
Hemorrhagic shock consequent upon injury no.1. Injury no.1 is
ante-mortem in nature caused by sharp and pointed
object/weapon.‖
(emphasis supplied)
31. As per the prosecution's story, the deceased had been brought to the
Bharat Petroleum outlet and thereafter the police had been informed. Perusal
of the PCR form (Ex.PW-17/P-25) reveals that the call was made by phone
No. 918700171952. Another co-worker of the deceased-Rahul (PW-8) had
deposed that the said mobile number was his and he had made the PCR call.
He also corroborated the version of Devender Pratap Mishra (PW-1) and
Yashpal (PW-2).
32. The motorcycle, on which the appellants-convicts had fled, had been
described in detail by Devender Pratap Mishra (PW-1) and Yashpal (PW-2).
They both had stated that the motorcycle had a red body with green colour
on its engine. The motorcycle (Ex. MO-1) that was seized (vide seizure
memo Ex. PW-27/P-51) from the appellant-convict Nikhil Saxena had the
same distinctive colour combination and it was identified by both Devender
Pratap Mishra (PW-1) and Yashpal (PW-2) as the same bike that was used
by appellants-convicts to flee after committing the crime.
33. This Court is in agreement with the contention of the learned APP for
the State that in view of the testimonies of Om Prakash (PW-3), Mohd.
Kalwa (PW-9), Sher Singh (PW-10), Gulshan (PW-11) and ASI Bajrang Lal
(PW-12) which have been mentioned earlier as well as the complaint (Ex.
PW-11/P-13) filed by appellant-convict Nikhil Saxena with respect to the
lost documents of the motorcycle, the prosecution has been able to
conclusively prove that appellant-convict Nikhil Saxena was in possession
of the said motorcycle bearing registration No. DL3S BB 4456 and it was
used by the appellants-convicts in commission of the crime in the present
case.
34. Devender Pratap Mishra (PW-1) and Yashpal (PW-2) had also
identified all the appellants-convicts in Court.
35. In view of the abovementioned facts, this Court is of the view that
Devender Pratap Mishra (PW-1) and Yashpal (PW-2) were natural
witnesses. The testimonies of Devender Pratap Mishra (PW-1) and Yashpal
(PW-2) are clear, cogent, consistent, credible, trustworthy and have been
corroborated by other evidence and material on record. Accordingly, the
presence of all the appellants-convicts at the place of occurrence i.e. behind
the Bharat Petroleum outlet, Adarsh Nagar, on the date of the incident is
proved.
AS TO WHY THE FIR HAD NOT BEEN REGISTERED ON THE BASIS OF
STATEMENTS OF DEVENDER PRATAP MISHRA (PW-1) AND YASHPAL
(PW-2) THE SAME HAS BEEN EXPLAINED BY THE PROSECUTION.
THERE WAS NO INORDINATE DELAY IN RECORDING OF THE
STATEMENTS BY THE POLICE.
36. Perusal of testimony of SI Tej Singh (PW-24) reveals that by the time
he had reached the Bharat Petroleum outlet to look for eyewitnesses,
Devender Pratap Mishra (PW-1) and Yashpal (PW-2) had left for the
hospital with the deceased and thereafter when they came back to the petrol
pump at about 5 a.m., SI Tej Singh (PW-24) had already left at about 4:40
a.m. after sending DD No. 6A for registration of FIR. Consequently, the FIR
had not been registered on the basis of statements of Devender Pratap
Mishra (PW-1) and Yashpal (PW-2). However, their statements had been
recorded by the second investigating officer Insp. Anil Kumar (PW-30) on
the day of the incident itself. Consequently, there had been no inordinate
delay in recording of their statements as contended by the counsel for the
appellants-convicts.
THE PRESENCE OF FUNCTIONAL CCTV CAMERAS HAD NOT BEEN
PROVED. CONSEQUENTLY, THE JUDGMENT OF THE SUPREME
COURT IN TOMASO BRUNO (SUPRA) IS OF NO HELP
37. This Court is also in agreement with the contention of the learned
APP for State that the presence of functional CCTV cameras had not been
proved. The fact that a CCTV pole had been mentioned in the scaled site
plan is not sufficient to prove that CCTV cameras were installed or that they
were covering the place of incident or were functional. In fact, the manager
of the Bharat Petroleum outlet Ravi Kumar Jha (PW-14) had categorically
deposed that no CCTV camera was installed at the petrol pump.
Consequently, the judgment of the Supreme Court in Tomaso Bruno (supra)
is of no help to the appellants-convicts as the investigating officer had not
withheld the best evidence in the present case.
DYING DECLARATION INSPIRES CONFIDENCE, IS WHOLLY
RELIABLE, VOLUNTARY, TRUTHFUL AND MADE WITHOUT BEING
INFLUENCED BY ANYONE
38. This Court finds no merit in the contention of the learned counsel for
appellants-convicts that since no dying declaration was made to the police,
the earlier dying declaration made to Devender Pratap Mishra (PW-1) and
Yashpal (PW-2) cannot be believed. The perusal of the paper book reveals
that the first investigating officer SI Tej Singh (PW-24) had deposed that the
deceased was unable to give his statement due to the injury on his chest.
Therefore, the contention of the learned counsel for appellant-convict Punit
@ Raju that the investigating officer had deliberately not recorded the
statement of the deceased is not correct. The witnesses to whom the dying
declaration was made are natural witnesses and they have withstood the test
of cross-examination and their credibility remains intact.
39. It is settled law that an accused person can be convicted solely on the
basis of dying declaration provided the same inspires confidence, is wholly
reliable, voluntary, truthful and made without being influenced by anyone.
The Supreme Court in Parbin Ali & Anr. vs. State of Assam (2013) 2 SCC
81 has held as under:-
―16. In this context, it will be useful to refer to the decision
in Puran Chand v. State of Haryana wherein it has been stated
that a mechanical approach in relying upon a dying declaration
just because it is there is extremely dangerous and it is the duty
of the court to examine a dying declaration scrupulously with a
microscopic eye to find out whether the dying declaration is
voluntary, truthful, made in a conscious state of mind and
without being influenced by the relatives present or by the
investigating agency who may be interested in the success of
investigation or which may be negligent while recording the
dying declaration. The Court further opined that: (Puran Chand
case [(2010) 6 SCC 566 : (2010) 3 SCC (Cri) 197] , SCC p.
572, para 18)
―18. The law is now well settled that a dying declaration
which has been found to be voluntary and truthful and
which is free from any doubts can be the sole basis for
convicting the accused.‖
APPELLANTS-CONVICTS HAD COMMON INTENTION TO KILL
40. The dying declaration made by the deceased to these witnesses also
proves that the appellants-convicts had common intention to kill the
deceased and in furtherance of that common intention, two of the appellants-
convicts had caught hold of the deceased while the third stabbed him with a
knife. Consequently, all the three accused are liable to be held guilty.
IN THE PRESENT CASE, THERE WAS SUFFICIENT MOTIVE ON PART
OF THE APPELLANTS-CONVICTS TO COMMIT MURDER OF THE
DECEASED
41. Though motive is not a sine qua non for the conviction of an accused
person yet it is a relevant factor to establish a case based on circumstantial
evidence. In the present case, the deceased had clearly told Devender Pratap
Mishra (PW-1) and Yashpal (PW-2) that the appellants-convicts had tried to
snatch his mobile phone and upon his resistance, they had stabbed him.
Therefore, there was sufficient motive on part of the appellants-convicts to
commit murder of the deceased.
THE CONTENTION THAT THE PLACE OF OCCURRENCE HAD BEEN
SHIFTED, IS BEREFT OF MERIT
42. The place of occurrence has been consistently mentioned to be behind
the Bharat Petroleum outlet. Accordingly, the contention of the learned
counsel for the appellants-convicts that the place of occurrence had been
shifted, as the Crime Team had not inspected it, is bereft of merit specially
when SI Tej Singh (PW-24) had deposed that he had found no blood lying
on the ground.
THERE IS EXPLANATION ON RECORD AS TO WHY THE CLOTHES OF
DEVENDER PRATAP MISHRA (PW-1) AND YASHPAL (PW-2) WERE
NOT BLOOD-STAINED
43. Further, the contention of the learned counsel for appellants-convicts
that the clothes of Devender Pratap Mishra (PW-1) and Yashpal (PW-2)
were not bloodstained as they were not eyewitnesses is unsubstantiated in
view of the testimony of Devender Pratap Mishra (PW-1) wherein he had
explained that they had carried the deceased by holding his hands and
consequently, their clothes were not bloodstained. It is also pertinent to
mention that in the post mortem report (Ex.PW-23/P-40) it was observed
that the chest cavities of the deceased had about 2.5 litres of blood. This
proves why blood of the deceased had not spilled out in large quantity.
NON-PRODUCTION OF THE MOBILE PHONE IS NOT FATAL TO THE
CASE OF THE PROSECUTION
44. As far as the non-production of the mobile phone of the deceased is
concerned, it is the prosecution's case that the appellants-convicts had not
been successful in snatching the mobile phone. In fact, Devender Pratap
Mishra (PW-1) had deposed that he had handed over the phone to the father
of the deceased Ram Kumar (PW-5). It is pertinent to mention that the father
of the deceased Ram Kumar (PW-5) had not been questioned on this aspect
and accordingly, the said issue cannot be raised at this stage [See: Mahavir
Singh v State of Haryana (2014) 6 SCC 716]. Consequently, this Court is
of the view that non-production of the mobile phone is not fatal to the case
of the prosecution.
BLOOD OF THE DECEASED WAS FOUND ON THE KNIFE
RECOVERED AT THE INSTANCE OF APPELLANT-CONVICT PUNIT @
RAJU. DR. SURAJ OHAL HAD OPINED THAT INJURY NO.1 AS
MENTIONED IN THE POST MORTEM REPORT COULD BE POSSIBLE
WITH THE RECOVERED KNIFE.
45. The weapon of offence in the present case is a knife which had been
recovered at the instance of appellant-convict Punit @ Raju vide seizure
memo Ex. PW-27/P-58. The said knife had been sent for forensic
examination and the FSL Report (Ex. PW-30/P-71) reveals that the DNA
profile generated from the blood found on the knife matched with the DNA
profile generated from the samples of the deceased. In other words, blood of
the deceased was found on the recovered knife.
46. Further, in the FSL Report (Ex. PW-30/P-72), Dr. Bharti Bharadwaj
(PW-32) had opined that the cuts on the t-shirt of the deceased could have
been caused by the recovered knife. The doctor who had conducted the post
mortem i.e. Dr. Suraj Ohal had also given a subsequent opinion (Ex. PW-
23/P-42) wherein he had stated that injury No. 1 as mentioned in the post
mortem report could be possible with the recovered knife. The relevant
portions of the FSL Reports (Ex. PW-30/P-71 and Ex. PW-30/P-71) are
reproduced hereinbelow:-
A. FSL Report (Ex.PW-30/P-71)
―Forensic Science Laboratory
Govt. of NCT of Delhi
Sector 14, Rohini, Delhi-110085
Tel: 011-27555811, Fax: 011-27555890
Accredited by the National Accreditation Board for Testing and
Calibration Laboratories (NABL) as per standards of ISO.IEC
17025:2005 and NABL 113:2008
xxx xxx xxx
DESCRIPTION OF ARTICLES CONTAINED IN PARCEL
xxx xxx xxx
Exhibit ‗1a' : One cut/torn foul smelling ‗T'-shirt having brown
stains.
Exhibit ‗1b': One cut/torn foul smelling shirt having brown stains.
xxx xxx xxx
Exhibit ‗3': Cloth piece having reddish brown stains described as
blood on gauze of deceased.
xxx xxx xxx
Exhibit ‗5': One all metallic knife.
xxx xxx xxx
CONCLUSION
DNA Profiling (STR analysis) performed on the exhibits provided
is sufficient to conclude that the DNA profile generated from the
source of exhibit ‗3' (Cloth piece) of deceased was found to be
matching with the DNA profile generated from the source of
exhibits ‗1a' (‗T'-shirt), ‗1b'(Shirt) of deceased & ‗5'(knife).‖
B. FSL Report (Ex.PW-30/P-72)
―Forensic Science Laboratory
Govt. of NCT of Delhi
Sector 14, Rohini, Delhi-110085
Tel: 011-27555811, Fax: 011-27555890
Accredited by the National per standards of ISO/IEC 17025:2005
and NABL 11:2008
Accreditation Board for Testing and Calibration Laboratories
(NABL)
xxx xxx xxx
2. DESCRIPTION OF ARTICLES CONTAINED IN PARCEL(s)
EXHIBIT (S):
xxx xxx xxx
Exhibit-1a : One half sleeves T-Shirt with dark brown stains
having one cut mark in front left middle portion
marked as ―Q1‖in the laboratory.
Exhibit-1b: One half shirt with dark brown stains having one cut
mark in front left middle portion marked as ―Q2‖ in
the laboratory.
xxx xxx xxx
Exhibit-5: One button knife measuring approximately 25 cm in
length. It was having blade measuring approximately
11 cm in length and 2.7 cm maximum width with one
sharp edge.
3. RESULTS OF EXAMINATION/OPINION:
Exhibit-1a and Exhibit-1b were examined physically and
under magnification and also examined the knife Exhibit-5. The
cut mark ―Q1‖ and ―Q2‖ on ―Exhibit-1a‖ and ―Exhibit-1b‖
respectively were having sharp cut edges and also found
corresponding to each other. Test cut marks ―T1' and ‗T2'were
made on Exhibit-1b with Exhibit-5 and compared with the crime
cut marks ―Q1‖ and ―Q2‖ and the following opinion is given.
OPINION:
The cut marks ‗Q1' and ‗Q2' on Exhbit-1a and Exhibit-1b
could have been caused by Exhibit -5.‖
(emphasis supplied)
IN THE PRESENT CASE THE CHAIN OF EVENTS IS COMPLETE AND
ALL THE CIRCUMSTANCES CONCLUSIVELY POINT TOWARDS THE
GUILT OF THE APPELLANTS-CONVICTS
47. In view of the aforesaid, the following circumstances have been
proved and they form a complete chain of events:-
A. On 13th April, 2018 i.e. the date of the incident, Devender
Pratap Mishra (PW-1) and Yashpal (PW-2) had seen the appellants-
convicts near the injured body of the deceased and the appellants-
convicts had run away after seeing both of them shouting ―bhago-
bhago‖ on a red coloured motorcycle having a green coloured
engine from the place of occurrence that is behind the Bharat
Petroleum outlet which is mentioned as Point 'A' in the scaled site
plan.
B. Thereafter, the deceased had made a dying declaration to
Devender Pratap Mishra (PW-1) and Yashpal (PW-2) wherein he
had stated that the appellants-convicts had unsuccessfully tried to
snatch his mobile phone and when he resisted, they had stabbed him.
C. The aforesaid circumstance also proves that appellants-convicts
had motive to kill the deceased.
D. Appellants-convicts Nikhil Saxena and Vishal Sonkar were
arrested on 15th April, 2018 and the motorcycle bearing registration
No.DL3S BB 4456 was seized. The said motorcycle was in
possession of appellant-convict Nikhil Saxena on the date of the
incident as Gulshan (PW-11) had sold the said bike to him in 2016.
E. The appellants-convicts as well as the motorcycle bearing the
registration No. DL3S BB 4456 had been duly identified by
Devender Pratap Mishra (PW-1) and Yashpal (PW-2).
F. Appellant-convict Punit @ Raju was arrested on 15th April,
2018 and on the basis of his disclosure statement, a knife i.e. weapon
of offence was recovered.
G. As per the subsequent medical opinion (Ex.PW-23/P-42),
injury No.1 as mentioned in the post-mortem report was possible by
the recovered knife.
H. On 13th April, 2018, a post-mortem was conducted and the
cause of death was opined to be hemorrhagic shock consequent upon
injury No.1.
I. FSL report (Ex.PW-30/P-71) confirmed that DNA profile
generated from the recovered knife was similar to the DNA profile
generated from the clothes and blood sample of the deceased.
J. FSL report (Ex.PW-30/P-72) opined that the cuts on the t-shirt
of the deceased could have been caused by the recovered knife.
48. Keeping in view the abovementioned circumstances, especially the
dying declaration of the deceased, testimonies of Devender Pratap Mishra
(PW-1) and Yashpal (PW-2) read with medical and scientific evidence,
which is of conclusive nature, this Court is of the view that the chain of
events is complete and all the circumstances conclusively point towards the
guilt of the appellants-convicts. Consequently, it stands proved beyond
reasonable doubt that the appellants-convicts, with common intention,
committed murder of the deceased.
CONCLUSION
49. In view of the aforesaid circumstances and mandate of law, this Court
does not find any reason to interfere with the impugned judgment. The
orders on conviction and sentence are upheld.
50. Accordingly, present appeals, being bereft of merit, are dismissed.
Trial court record be sent back. Copy of the judgment be sent to appellants-
convicts through the concerned Jail Superintendent(s).
MANMOHAN, J
SANGITA DHINGRA SEHGAL, J
DECEMBER 09, 2019
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