Delhi High Court
Inder Pal & Anr. vs State on 31 January, 2020
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 10.01.2020
Judgment pronounced on: 31.01.2020
+ CRL.A. No. 15/2011
INDER PAL & ANR. ..... Appellants
Through: Mr. Fahim Khan, Mr.Shoaib Khan
and Mr.Aditya Tanwar, Advs
versus
STATE ..... Respondent
Through: Ms. Aashaa Tiwari, APP for State
with Insp.Vikram Singh, PS Sangam
Vihar
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
JUDGMENT
SANGITA DHINGRA SEHGAL, J
1. Present appeal is directed against judgment dated 20.12.2010 and
order of sentence dated 22.12.2010 passed by the learned Additional
Sessions Judge, Special Judge NDPS, South & South-East District,
Saket Courts, New Delhi in Sessions case No. 89/2007 arising out of
FIR No. 514/2007 registered under Sections 302/307/34 of the Indian
Penal Code, 1860 (hereinafter referred to as 'IPC') at Police Station
Sangam Vihar, New Delhi whereby the learned Sessions Judge found
the appellants-accused guilty and sentenced them as follows:
"............I sentence the convict Indrawati to RI for a
period of seven years and convict Inderpal to RI for a
period of five years and also to a fine of Rs.5000/- each
for the offence punishable U/S 304/34 (II) IPC. They
both are also sentenced to RI for a period of three years
each and a fine of Rs.3000/- each for the offence
punishable U/S 308/34 IPC. In case of non-payment of
fine they shall further undergo RI for a period of two
months and one months each respectively. Both the
sentences shall run concurrently......."
2. The brief facts of the case, as mentioned by the learned Trial Court
are reproduced as under:
"..........On 03.06.2007, at about 10.37 PM one DD
No.29A Ex. PW-11/A was recorded at the PS regarding
the above incident and the same was assigned to ASI
B.D.Khan/PW-11, who had arrived at the spot alongwith
Ct. Kamlesh Kumar / PW-9. It was revealed to them that
the injured had already been taken to AIIMS Hospital
and in the meanwhile they had also received one other
DD No. 47B Ex.PW11/B in that regard. SI O.P.
Thakur/PW-21 had also reached there alongwith Ct.
Ishwar Singh/PW-14 and then PW-11/ASI B.D.Khan and
PW-21/SI O.P.Thakur had both reached AIIMS Hospital
and had obtained the MLCs of deceased Shakuntala, who
was declared brought dead, and of the injured
Sh.Kunwar Pal, Geeta and Vicky.
3. It is also mentioned in the chargesheet that the injured
Sh.Kunwar Pal was declared fit for making the statement
and the IO/PW-21 SI O.P Thakur had recorded his
statement Ex.PW1/A in which he had stated that at about
10 PM in the night after taking his meals he had come
out of his house for some fresh air when the accused
Inderpal, who was residing in front of his house, had
started abusing him on the point of some flow of water of
his house in the drain and the foul smell emanating
therefrom and the accused had grappled with him. In the
meanwhile, the wife of the accused Inderpal, i.e., the co-
accused Indrawati, and his son Raju had started pelting
bricks/stones from the roof of their house and the
accused Indrawati had hit two stones on the head of his
wife Shakuntala (since deceased) and she became
unconscious at the spot. The son Vicky and daughter
Geeta of the complainant had also come out of their
house on hearing the noise of the quarrel and the
accused Raju had hit on the head of his daughter Geeta
with a stone from the roof of his house and the
complainant Sh.Kunwar Pal had also received some
injuries in the abovesaid quarrel. It was also stated by
him that previously also there had been some quarrels
and exchange of hot words between their families on the
point of the above drain and the accused Inderpal was
drunk at the time of above incident.
4. The IO /PW-21 and PW-11 had then both returned
back at the spot and the IO/PW21 had made endorsement
Ex.PW21/B on the above statement of the complainant
Sh.Kunwar Pal and got a case registered at the PS under
the above Sections, through PW-14, Ct. Ishwar Singh.
During investigation conducted at the spot, the scene of
offence was got photographed by the crime team, the
blood sample, earth control and two pieces of stone and
brick were seized vide seizure memo Ex.PW14/A, all the
three accused persons were arrested and their disclosure
statement were recorded. The dead body of the deceased
Shakuntala was also got postmortem and handed over to
her relatives after identification, statements of the
witnesses were recorded and the rough as well as the
scaled site plan of the scene of crime were prepared/ got
prepared. The IO had also subsequently obtained the
opinion from the department of death of the deceased
having been caused by the above two pieces of the stone
and the brick and had then got all the exhibits of the case
examined from the FSL, Rohini. Since the accused Raju
was found to be a juvenile, he was chargesheeted
separately and he is facing trial before the Juvenile
Board. After recording the statements as well as the
supplementary statements of some witnesses, obtaining
result on the MLCs of the above three injured and after
completing the other formalities of the investigation, the
above two accused persons were chargesheeted for the
said offences."
3. Charge sheet in this case was filed against the accused persons on
24.08.2007 and after compliance of the provisions of Section 207
Cr.P.C, cognizance thereof was taken. A prima facie case for
offences punishable under Sections 302/307/34 IPC was also found
to be made out against both the accused persons and charges for the
said offences were also accordingly framed against them on
12.11.2007.
4. In order to bring home the guilt of the accused persons, the
prosecution examined 25 witnesses in all. After the conclusion of the
prosecution evidence, all the incriminating evidence brought by the
prosecution on record was put to both the accused and in their
statements recorded under Section 313 Cr.P.C, both the appellants
i.e. Inderpal and Inderwati denied the same to be correct while
claiming themselves to be innocent and to have been falsely
implicated in this case by the complainant and his family members.
They had claimed that the complainant and his family members had
attacked their house by pelting stones and they had received injuries
out of the same. The accused had chosen to lead evidence in their
defence and examined 3 witnesses.
5. Learned counsel for the appellants opened his submissions
contending that the witnesses examined by the prosecution to
establish its case i.e. PW-1 (Sh. Kanwar Pal Singh), PW-2 (Sh. Vicky
@ Dal Chand) and PW-3 (Ms. Geeta) are interested witnesses and
their testimonies cannot be relied upon to convict the present
appellants.
6. The counsel for the appellants further argued that the trial court failed
to take into consideration the contradictions and improvements in the
testimonies of the prosecution witnesses. Arguing on the same point,
the counsel for the appellants contended that the contradictions and
improvements in the testimony of the prosecution witnesses are not
such which could have been ignored by the trial court as they go to
the root of the case of the prosecution, consequently, falsifying the
story put up by the prosecution.
7. In addition to the aforesaid, the learned counsel argued that the trial
court failed to take into consideration that as per the testimonies of
both PW-2 (Vicky @ Dal Chand) and PW-3 (Geeta) the death of the
deceased Shakuntala was caused because of a fall due to push given
by PW-2 (Vicky @ Dal Chand) while she was trying to stop him
from inflicting blows on the person of the accused Inderpal and his
son Raju.
8. The counsel for the appellants further argued that the trial court failed
to look into the fact that there was no electricity at the spot at the
time of incident, hence, the prosecution witnesses could not, in any
probability, identify the accused persons. He further argued that the
two public witnesses i.e. PW-4 (Shyam Nanda) and PW-10 (Smt.
Chameli Devi) have not supported the case of the prosecution and
turned hostile.
9. Concluding his arguments on behalf of the appellants, the counsel
argued that the prosecution failed to prove any motive on the part of
the appellants to commit the said act and has also failed to fulfill its
duty of proving the case beyond reasonable doubt, the benefit of
which should go to the appellants and they should be acquitted of the
charges under Section 304 Part II read with Section 34 as well as
Section 308 read with Section 34 of the Indian Penal Code.
10. Rebutting the contentions of the appellants, Ms. Aashaa Tiwari,
learned APP for the State submitted that the impugned judgment is
based on proper appreciation of the facts and evidence and warrants
no interference by this Court; that the statements of prosecution
witnesses and medical/scientific evidence are corroborative in nature
and the prosecution has been able to prove its case beyond reasonable
doubt.
11. The learned APP further argued that injuries on the person of PW-1
(Kanwar Pal Singh), PW-2 (Sh. Vicky @ Dal Chand) and PW-3
(Geeta) as well as the injuries on the person of deceased were
inflicted by the present appellants in furtherance of the common
intention of all of them. Learned counsel further submitted that the
material witnesses i.e.PW-1 (Sh. Kanwar Pal Singh), PW-2 (Vicky)
and PW-3 (Ms. Geeta) have supported the case of the prosecution,
though their exist certain minor contradictions and improvements in
their deposition, but the same are not such which go to the root of the
prosecution case. In support of her argument, she placed reliance on
Mritunjoy Biswas vs. Pranab alias Kuti Biswas and Anr. reported in
(2013) 12 SCC 796.
12. Learned APP further contended that though PW-1 (Kanwar Pal
Singh), PW-2 (Sh. Vicky @ Dal Chand) and PW-3 (Geeta) are
related witnesses but the same cannot be the sole basis to reject their
testimonies in their entirety. In support of her contention, she placed
reliance on Jodhan vs. State of M.P. reported in (2015) 11 SCC 52.
13. Concluding her arguments, the learned APP for the state contended
that the presence of the bricks/stones in the house of the deceased
stand established from the testimony of PW-2 (Sh. Vicky @ Dal
Chand) which proves the case of prosecution.
14. We have heard the learned counsel for both the sides and have also
perused the entire material available on record.
TESTIMONIES OF THE PROSECUTION WITNESSES
15. At the outset, we deem it necessary to refer to the depositions of the
material witnesses i.e. PW-1 (Kanwar Pal Singh), PW-2 (Sh. Vicky
@ Dal Chand) and PW-3 (Geeta). PW-1 (Kanwar Pal Singh) in his
examination-in-chief has deposed that: -
"On 03.06.2007, at about 10 PM, I started from my
house for walk after taking the meal, accused Inderpal
who was under the influence of liquor started abusing
me and shouted as to why I had not closed the drainage
where dirty water is collected and smelling and
thereafter he caught hold me. Smt. Inderawati w/o
Inderpal and their son Raju Yadav started pelting
bricks and stone from the roof on us along with their
four daughters. I sustained injury. My son Vicky @ Dal
Chand sustained injury. My daughter Geeta and Smt.
Shakuntala also came out hearing our noise. Accused
Inderawati gave pelted two stones/brick on my wife
Shakuntala while Raju pelted stone on my daughter
Geeta. I tried to apprehend them and I was given teeth
bite on my finger by accused persons. Someone
informed the police. Police reached at the spot."
In his cross-examination, the witness deposed as under: -
"I had given a statement to the police regarding the
accident. In my statement to police Ex.PW1/A. I had not
stated to the police that along with Smt. Indrawati w/o
accused Inderpal and Raju Yadav S/o Inderpal, four
daughters of the accused Inderpal were also pelting
stones. I had stated to the police in my statement
Ex.PW1/A that the accused persons had bit my finger
but I had not named any of the accused, who had bit
(confronted with statement Ex.PW1/A where it is not
stated that accused persons had bit the finger of the
witness). I had stated to the police in my statement that
I received injuries on my finger while I was trying to
prevent further quarrel.
xxxx xxxx xxxx xxxx
I cannot name the persons, who started pelting stones
from the roof of house of accused Inderpal immediately
after accused Inderpal grappled with me. I had not seen
the persons pelting stones as I was forced to retreat to my
house. It is correct that my house as well as house of
accused Inderpal are both single storied houses. The roof
should be approximately at a height of 12 feet. I am not
able to see the roof the house of accused Inderpal while I
am in my house. It is wrong to suggest that because of
darkness I was not able to identify the persons, who had
pelted stones. I had seen accused Inderpal, his wife
Shakuntala Devi and his son Raju pelting stones. I had
not seen and cannot name the other persons, who were
also pelting stones. I had stated to the police in my
statement that my son Vicky had received injuries on his
head as well as on the back. (confronted with statement
Ex. PW1/A where it is not specifically stated what
injuries were received by Vicky.
xxxx xxxx xxxx xxxx
It is also wrong to suggest that then wife of accused
Inderpal came outside her house after hearing cries of
accused Inderpal and tried to save him. Vol. wife of
accused Inderpal was in the shop at that time and he
was under the influence of liquor.
xxxx xxxx xxxx xxxx
It is wrong to suggest that my son Vicky pushed my wife
and in the process my wife fell down and hit against a
stone lying in the gali and received injuries. Vol. I had
seen wife of accused Inderpal hitting my wife with stone.
It is wrong to suggest that no family member of accused
Inderpal including his wife Indrawati and son Raju had
pelted stones on my family members including my wife."
16. PW-2 (Vicky @ Dal Chand) in his examination-in-chief has deposed
that: -
".....After about 4-5 minutes I heard noise of quarrel and
I along with my mother, sister Geeta also came out,
meanwhile we saw that Inderpal under the influence of
liquor was beating my father and when we intervened
accused Inderawati and Raju along with other three
started pelting stone on us. My sister Geeta and mother
Shakuntala sustained head injury due to pelting
stones/bricks by Inderawati and Raju. Smt. Inderawati
pelted two stones on the head of my mother while Raju
had pelted stone on the head of my sister Geeta by
pointing their head. They pelted stone on our house
also. I and my father also sustained injury. Inderpal also
pelted stone taking the same from the Gali itself. The
accused Inderpal, Inderawati and Raju along with their
daughters/sister assaulted us with the pre-planning with
intention to deprive us from our life."
In his cross-examination, PW-2 (Vicky @ Dal Chand) stated that:
"Police had recorded my statement after this incident
when I identified the dead body of my mother. I had
stated to the police in my statement that I saw accused
Inderpal beating my father while being under the
influence of liquor (confronted with statement
Ex.PW2/A where it is not so recorded). I had stated to
the police in my statement that accused persons had
pelted stones from their house top inside our house.
xxxx xxxx xxxx xxxx
It is wrong to suggest that I pushed my mother aside
when she tried to intervene because of which she fell
down on the ground and received injuries as her head
struck against stones and bricks lying in the gali.
xxxx xxxx xxxx xxxx
It is incorrect to suggest that my mother had received
injuries due to a fall after being pushed by my brother
Vicky."
17. The daughter of the deceased Ms. Geeta was examined as PW-3, who
deposed as follows:
"On 03.06.2007, I was present at my house. At about 10
PM, my father had gone out of the house after taking
dinner and heard his loud voice of quarrel. On which I,
my mother Shakuntala Devi and brother Vicky came
out of the house. I saw accused Inderpal (present in
Court) grappling with my father and his wife Indrawati
and pelting bricks and stones from the roof on my
father. We also reached there and Inderwati continued
to pelt bricks and stones. I also sustained injuries. My
brother Vicky also received injury. My father received
injury in his hand. Raju son of Indrawati and Inderpal
gave bricks below. Indrawati thrown stones on my
mother and my mother expired at the spot after
sustaining head injury. Some neighbour informed the
police. Police came there and we were taken to the
hospital. The accused persons also sustained injuries but
I cannot tell how they sustained injuries.
In her cross-examination, she deposed as under:
My statement was recorded by the police relating to this
case. I had stated to the police in my statement that when
I came outside my house after hearing the noise, I saw
accused Inderpal grappling with my father Kawarpal
(confronted with statement Ex.PW3/A where it is not so
recorded). We are living in this house for a period of
about eight months prior to the date of incident. I do not
know the names of the persons who were having houses
in vicinity. Our house and the house of the accused
Inderpal are opposite and facing to each other. I do not
know the persons who are residing in the houses near to
the house of accused Inderpal. Even before the date of
incident, accused Inderpal and his family members were
known to me and I came to know their names at the time
of the incident. There was no interaction between the
family of the accused and us at any time during the
period. It is correct that nali which was the cause of the
quarrel had been constructed to some extent and some
work was still proceeded in the nali. It is correct that
some material required for constructing the nali was
lying in the gali. I cannot tell the exact width of the gali
but it was a reasonable normal size gali. There was no
electricity or light in the gali. I do not know how accused
Inderpal or his son had received injuries in the incident.
I do not know if during the quarrel my brother Vicky had
hit accused Inderpal with farsa while he was caught hold
by my father and other person. No one from the locality
had come on the spot at the time of quarrel."
18. The bare perusal of the aforesaid testimonies reflects that PW-1
(Kanwar Pal Singh) has stated that '.... thereafter he caught hold me.
Smt. Inderawati w/o Inderpal and their son Raju Yadav started
pelting bricks and stone from the roof on us along with their four
daughters.' The said fact finds corroboration from the testimony of
PW-2 (Sh. Vicky @ Dal Chand) wherein he has deposed that "we
saw that Inderpal under the influence of liquor was beating my father
and when we intervened accused Inderawati and Raju along with
other three started pelting stone on us" and PW-3 (Geeta) wherein
she has deposed that 'I saw accused Inderpal (present in Court)
grappling with my father and his wife Indrawati and pelting bricks
and stones from the roof on my father. We also reached there and
Inderwati continued to pelt bricks and stones'.
19. Hence, PW-1 (Kanwar Pal Singh), PW-2 (Sh. Vicky @ Dal Chand)
and PW-3 (Geeta) have in unison stated that it was Inderpal who was
quarrelling with the complainant i.e. PW-1 (Kanwar Pal Singh). It is
further evident that the stones were pelted by the wife of Inderpal,
who is another accused in the present case. It is also on record that
the pelting of stones continued even after the complainant had taken
refuge in his house which is evident from the testimony of PW-2 (Sh.
Vicky @ Dal Chand) wherein he has deposed that Smt. Inderawati
pelted two stones on the head of my mother while Raju had pelted
stone on the head of my sister Geeta by pointing their head. They
pelted stone on our house also."
20. From the perusal of the aforesaid testimonies it is further evident that
a fight took place between the Respondent no.1 and the deceased and
later on hearing the sound of the deceased when PW-2 (Vicky @ Dal
Chand) and PW-3 (Geeta) came out of the house they were attacked
by the Respondent no.2 and his son, who was tried as Juvenile
separately, from the roof of their house with bricks and stones which
led to the death of the deceased i.e. wife of the complainant. It is
further evident from the testimonies of these witnesses that the death
of the wife of the complainant has occurred due to injuries suffered
by her from pelting of bricks from the roof of the house of the
Respondents.
MEDICAL EVIDENCE
21. Having perused the testimonies of the material witnesses, we deem it
appropriate to refer to the medical evidence on record. Dr. Sukhdeep
Singh who was examined before the court as PW-18, proved the
post-mortem report on record as Ex. PW-18/A. PW-18 (Sukhdeep
Singh) in his deposition before the court stated as under:
"On 04.06.2007, I conducted postmortem examination on
the body of Shakuntala W/o Mr.Kunwar Pal, aged 40
years, female. Following findings were recorded: -
1. Rigor Mortis was present.
2. Postmortem lividity was present on that, except on
the pressure areas in supine position and was
fixed.
3. Following antemortem external injuries were
seen.
a. A lacerated wound, 5 cm in length, gaping 1
cm, placed longitudinally along the sagittal
suture in the mid line, starting from a point
13 cm above the root of nose and 6 cm
above the hair line, margins of the wound
are irregular and rough.
b. A lacerated wound, reverse L shaped with
placed 12 cm to the back from the left eye
brow and 3 cm away from the mid line,
vertical limb of the wound was 2x.4
millimeter, horizontal limb of the wound was
1.5 cm x .2 millimeter, the lateral end of the
limb was placed 14 cm above the mastered
process of left side, margins of the wound
were irregular, ragged, uneven. Edges of
the wound were irregular and rough.
Internal injuries
Head: Sub Scalpular extra vastation of blood seen
below injury no. a and b, fracture of the skull
along the sagittal suture line, with sutural
separation upto a distance of 6 cm and fracture of
the skull along the cororal suture, continuing upto
the temporal bone on left side, sub-arachnoid and
sub-dural haemorrhage found on the base of
cerebellum and brain stem, posterior aspect of left
occipital pol, parietal region of left and right
cerebral hemispheres.
Abdomen:
500 ml of yellowish fluid containing dal and rice
grains found.
Brief History:
10 numbers of papers were submitted to me by the IO of
the case at the time of the inquest which were duly
initiated by me.
Time since death was about 28 hours.
Cause of Death was Cranio-Cerebral injury as a result
of blunt force impact, which was sufficient to cause
death in ordinary course of nature.
The postmortem report is Ex.PW18/A is in my
hand writing and which bears my signature at point A.
Subsequent opinion regarding weapon of offence:
Application was received in the department of
Forensic Medicine submitted by Inspector Mukesh
Kumar PS Sangam Vihar dated 25.06.2007 in relation
to case FIR No. 514/2007 date 04.06.2007.
Following documents and a parcel were received.
1. Application.
2. Photocopy of postmortem report no. 665/07.
3. Road Certificate.
4. A sealed pullanda of white colour, printed in
Hindi 'Golden Chakki Atta' bearing one seal
marked 'MK'.
On opening the sealed pullanda, marked 'MK'
two bricks were found, one was red brick and
other concrete brick.
i). Red Bricks:- Half Broken, 16 cm x 11.5 cm
x 6.5 cm with imprinted numbers 7, 8 on one
surface on brick.
ii). A concrete stone: - Irregular in shape, 18
cm X 11 cm x 7 cm.
Dimension are maximum length, breadth
and height.
Opinion : - After examination weapon of offence
and findings in the postmortem report no. 665/07.
and 2 of the postmortem report could be produced
by brick no. 1 - red brick or brick no. 2 -
concrete. The weapon was duly packed, sealed
and handed over to IO alongwith the sample of
the seal of Department of Forensic medicine,
AIIMS, New Delhi. My report is Ex.PW18/B
which is in my handwriting and bears my
signature at point A.
XXXXXXXX
The brick received was not fresh one, but I do not
remember if any mud or dust clung on it. In a
situation where the red brick or the concrete
brick which were received for examination are
placed on surface and a person falls thereon, the
kind of injuries received by the deceased will not
be produced. It is correct that in my postmortem
report, I had not mentioned that any of the brick
was having blood. It is correct that it is not
possible to determine whether the injuries was
caused by those very bricks or some other object,
but the object has to be similar. It is incorrect to
suggest that I am deposing falsely. It is wrong to
suggest that I have given an incorrect opinion at
the instance of the IO to fill up the lacuna of the
prosecution case."
22. Dr. Y. Keerthi Rao who conducted the medical examination of PW-2
(Vicky @ Dal Chand) was examined as PW-6. He deposed as
follows:
"On 03.06.2007, I examined Vicky S/O Kuwarpal, 19
years male.
On local examination I found: -
1. 4x0.5 cm over the posterior scalp
2. 1x.5 cm laceration over right toe.
3. Mild tenderness over the thoracic spine.
The nature of injuries is simple sharp and blunt
The MLC is Ex.PW6/A.
On 04.06.07, I examined Kuwarpal Singh vide
MLC Ex.PW6/A. As per MLC, the nature of injuries was
simple blunt. There was injury 2X5 mm, laceration over
the tip of the lateral three fingers of right land. The MLC
is Ex.PW6/B."
23. PW-10 (Dr. Ankur) who appeared in the witness box on behalf of
Dr. Kamlesh deposed as under:
" I am deputed by MS AIIMS hospital to depose on
behalf of Dr. Kamlesh, who was working in the hospital
as Radiologist and has left the hospital and his present
whereabouts are not known to the hospital authority. I
have seen the x-ray report No.17455 dated 4.6.07 of
Inder Pal. As per the x-ray report, no fracture was seen.
The x-ray report Ex.PW10/A is in the hand of
Dr. Kamlesh which bears his signatures at point A."
24. PW-15 (Dr. Tej Prakash Sinha) who appeared in the witness box on
behalf of Dr. T. N Umesh deposed as under:
" I have seen the MLC of Geeta Ex.PW15/A which is
in the hand writing of Dr.Umesh and bears his signature.
As per MLC the nature of injury is simple blunt. As per
MLC there was laceration over the scalp of Geeta
measuring into 3 x 0.5 cm."
25. From the testimony of PW-18 (Dr. Sukhdeep Singh) it is evident that
the cause of death was the result of blunt force impact, which was
sufficient to cause death in ordinary course of nature which could
be caused by the bricks which were seized vide Ex. PW-24/A.
Further, from the testimonies of PW-6 (Dr. Y. Keerthi Rao), PW-10
(Dr. Ankur) and PW-15 (Dr. Tej Prakash Sinha) it is evident that the
injuries on the person of PW-1 (Kanwar Pal Singh), PW-2 (Sh. Vicky
@ Dal Chand) and PW-3 (Geeta) were caused by blunt objects.
26. Hence, from the conjoint reading of the aforesaid testimonies along
with the medical evidence on record, it is established that the cause
of death of the deceased as well as the injuries received by the
prosecution witnesses including PW-1 (Kanwar Pal Singh), PW-2
(Sh. Vicky @ Dal Chand) and PW-3 (Geeta) was due to the acts of
pelting of bricks by the appellant Inderpal and Inderwati, in
furtherance of their common intention. This fact further counters the
contention that the death of the appellants was due to the fall caused
by the push given by PW-2 (Vicky @ Dal Chand) during the scuffle.
INTERESTED AND RELATED WITNESSES
27. Learned Counsel for the Appellants has submitted that PW-1
(Kanwar Pal Singh), PW-2 (Sh. Vicky @ Dal Chand) and PW-3
(Geeta) are related to the deceased being the husband, son and
daughter respectively and are interested witnesses, hence, their
testimonies cannot be relied upon. On the question of the reliability
of the testimonies of the interested witnesses, the Apex Court in
Khurshid Ahmed vs. State of Jammu and Kashmir reported in AIR
2018 SC 2457 has held as under: -
"26. There is no proposition in law that relatives are to
be treated as untruthful witnesses. On the contrary,
reason has to be shown when a plea of partiality is
raised to show that the witnesses had reason to shield
actual culprit and falsely implicate the Accused [See:
Harbans Kaur and Anr. v. State of Haryana2005 CriLJ
2199].
27. If the evidence of an eyewitness, though a close
relative of the victim, inspires confidence, it must be
relied upon without seeking corroboration with minute
material particulars. It is no doubt true that the Courts
must be cautious while considering the evidence of
interested witnesses. In his evidence, the description of
the incident by PW9 clearly portrays the way in which
the Accused attacked the deceased causing fatal head
injury as propounded by the prosecution. The testimony
of the father of deceased (PW9) must be appreciated in
the background of the entire case.
28. In our opinion, the testimony of PW9 inspires
confidence, and the chain of events and the
circumstantial evidence thereof completely supports his
statements which in turn strengthens the prosecution case
with no manner of doubt. We have no hesitation to
believe that PW9 is a 'natural' witness to the incident. On
a careful scrutiny, we find his evidence to be intrinsically
reliable and wholly trustworthy"
28. Further, In Sudhakar v. State reported in(2018) 5 SCC 435 the apex
court held as under:
"17. It would be appropriate to look at the legal position
with regard to evidence of related and interested
witnesses. In Sarwan Singh v. State of Punjab (1976) 4
SCC 369, This court observed: the evidence of an
interested witness does not suffer from any infirmity as
such, but the court requires as a rule of prudence, not as
a rule of law, that the evidence of such witnesses should
be scrutinized with a little care. Once the approach is
made and the court is satisfied that the evidence of the
interested witnesses have a ring of truth such evidence
could be relied upon even without corroboration".
It is settled law that there cannot be any hard-and0-fast
rule that the evidence of interested witnesses cannot be
taken into consideration and they cannot be termed as
witnesses. But the only burden that would be cast upon
the courts in those cases is that the courts have to be
cautious while evaluating the evidence to exclude the
possibility of false implication. Relationship can never be
a factor to affect the credibility of the witness as it always
not possible to get an independent witness."
29. Accordingly, applying the aforesaid dicta of the Apex Court to the
present case, the testimonies of PW-1 (Kanwar Pal Singh), PW-2
(Sh. Vicky @ Dal Chand) and PW-3 (Geeta) cannot be rejected on
the sole basis of them being interested or related witnesses. Hence
the contention raised by the learned counsel that the testimonies of
PW-1 (Kanwar Pal Singh), PW-2 (Sh. Vicky @ Dal Chand) and
PW-3 (Geeta) holds no ground.
CONTRADICTIONS IN THE TESTIMONIES OF PROSECUTION
WITNESSES
30. Learned Counsel for the Appellants have further argued that even if
the testimonies of PW-1 (Kanwar Pal Singh), PW-2 (Sh. Vicky @
Dal Chand) and PW-3 (Geeta) are taken into account, still, there are
material contradictions and improvements in the version put forth by
the material witnesses, i.e. PW-1 (Kanwar Pal Singh), PW-2 (Vicky
@ Dal Chand) and PW-3 (Geeta) making the same unreliable. The
perusal of the aforesaid testimonies reflects that even though there
exist certain minor improvements in the testimonies of the aforesaid
witnesses including the presence of the sisters of the appellant at the
roof top, but no undue weightage can be given to them as they do not
shake the case of the prosecution. In order to strengthen the
preceding finding, we deem it appropriate to refer to the dicta of the
Apex Court in Lal Bahadur and Ors. vs. State(NCT of Delhi)
reported in (2013) 4 SCC 557 wherein the Apex Court has held that:
"19. So far as the contradictions and inconsistencies in
the evidence of the prosecution witnesses, as pointed out
by the counsel for the Appellants, are concerned, we have
gone through the entire evidence and found that the
evidence of the witnesses cannot be brushed aside merely
because of some minor contradictions, particularly for
the reason that the evidence and testimonies of the
witnesses are trustworthy. Not only that, the witnesses
have consistently deposed with regard to the offence
committed by the Appellants and their evidence remain
unshaken during their cross-examination. Mere
marginal variation and contradiction in the statements
of the witnesses cannot be a ground to discard the
testimony of the eye-witness who is none else but the
widow of the one deceased. Further, relationship cannot
be a factor to affect credibility of a witness. In the case of
State of Uttar Pradesh v. Naresh and Ors. (2011) 4 SCC
324, this Court observed:
30. In all criminal cases, normal discrepancies
are bound to occur in the depositions of witnesses
due to normal errors of observation, namely,
errors of memory due to lapse of time or due to
mental disposition such as shock and horror at
the time of occurrence. Where the omissions
amount to a contradiction, creating a serious
doubt about the truthfulness of the witness and
other witnesses also make material improvement
while deposing in the court, such evidence cannot
be safe to rely upon. However, minor
contradictions, inconsistencies, embellishments
or improvements on trivial matters which do not
affect the core of the prosecution case, should not
be made a ground on which the evidence can be
rejected in its entirety. The court has to form its
opinion about the credibility of the witness and
record a finding as to whether his deposition
inspires confidence. Exaggerations per se do not
render the evidence brittle. But it can be one of the
factors to test credibility of the prosecution
version, when the entire evidence is put in a
crucible for being tested on the touchstone of
credibility." (Ed: As observed in Bibhuti Nath
Goswami v. Shiv Kumar Singh (2004) 9 SCC 186
p.192. Therefore, mere marginal variations in the
statements of a witness cannot be dubbed as
improvements as the same may be elaborations of
the statement made by the witness earlier. The
omissions which amount to contradictions in
material particulars i.e. go to the root of the
case/materially affect the trial or core of the
prosecution's case, render the testimony of the
witness liable to be discredited. [Vide State v.
Saravanan (2008) 17 SCC 587, Arumugam v. State
(2008) 15 SCC 590, Mahendra Pratap Singh v.
State of U.P. (2009) 11 SCC 334, and Sunil Kumar
Sambhudayal Gupta (Dr.) v. State of Maharashtra
(2010) 13 SCC 657.]
31. Hence there exists no iota of doubt to disbelieve the findings of the
trial court wherein it has held as under:
"Both PW-2 & PW-3 have also stated specifically that
when they had arrived at the seen of offence they had
found the accused Inderpal grappling with their father
and giving beatings to him. They also corroborate the
claim of PW-1/complainant that the accused Indrawati
was on the roof of her house at that time and was pelting
stones, along with her son Raju. Though it has also come
on record during the statement of PW-1 and PW-2 that
the daughters of the accused Inderpal and Indrawati
were also with the accused Indrawati in pelting of the
stones, but their above depositions are liable to be
ignored being beyond the contents of their previous
statements and being improvements. However, it has
been specifically deposed by all the above three
witnesses that the accused Indrawati had pelted/thrown
two stones/bricks on the head of the deceased Shakuntala
and the accused Raju had hit with the stone on the head
of PW-2 Geeta and PW-2 has further stated that the same
were thrown while pointing out their heads. PW-2 has
also stated that the accused Inderpal had also pelted
stones on them after taking the same from the gali itself.
PW-3 has further stated that her mother died at the spot
and it has also come in the statements of other PWs that
she was taken to hospital and was declared brought dead
there. They also corroborate each other that the
complainant/PW-1, PW-2 and PW-3 had all sustained
injuries in the above incident of pelting of stones on them
by the accused persons. Thus in view of the consistent
and corroborative depositions made by all the above
three witnesses it can be said that the injuries on the
person of the complainant/PW-1, PW-2 and PW-3 and
also injuries on the persons of above Shakuntala leading
to her death subsequently were inflicted by the two
accused persons, either individually or along with the
other co-accused, but in furtherance of the common
intention of all of them."
IDENTIFICATION OF THE APPELLANTS
32. The counsel for the appellants has argued that it is a matter of record
that there was no electricity at the spot which made it impossible for
the prosecution witnesses to have identified the appellants as the
aggressors. It is on record that both the appellants as well as the
deceased were neighbours having adjoining houses. They were not
unknown or strangers to each other. In relation to the present
argument we tend to rely on the decision by us in the case CRL.A.
379/2019 titled as Akash @ Bhole vs. State wherein similar issue
was dealt by this Court in detail. The operative portion of the
discussion in Crl.A. 379/2019 is reproduced as below:
"48. PW-11 (brother-in-law of the deceased) in his
testimony has deposed that 'Volunteer, there was
electricity coming from an iron grill at the roof and light
was coming from that iron grill also. Again said, light
was coming from nearby houses at the place of
occurrence but there was no bulb or tube light at the
place of occurrence'. It is relevant to point out that the
date i.e. 28.04.2010, on which the incident took place,
was a full moon night. The presence of natural light at
the place of incident makes it plausible for the witnesses
to have actually witnessed the incident. Further, it is
imperative to note that the Supreme Court time and
again has emphasized that it is possible in full
moonlight to identify the accused. The Hon'ble Supreme
Court in the case of Karnail Singh and Ors. vs. State of
Punjab reported in AIR 1971 SC 2119, has held as
under:
"On the night between 28th and 29th July 1969,
there was the full moon. On the night of
occurrence the moon was up at about 9-35 P. M.
and about the time of occurrence there was bright
moon-light.Moreover, the accused persons were
all known to the eye-witnesses which makes
problem of identification much easier. The peepal
tree or its shadow also did not then cause
obstruction to the vision. The contention of the
appellants that in moonlight visibility does not go
beyond about 36 feet on a full moon-light is met by
the fact that there were quite a few electric lights
in the vicinity of the spot. We do not think there is
any substance in the argument that light was not
sufficient."
49. Reference can also be made to Israr vs. State of U.P.
reported in AIR 2005 SC 249 wherein the Apex Court
has held as under:
"19. Coming to the plea relating to non-
probability of identification, the evidence of PW-3
is very relevant. He has stated that the occurrence
took place at the time of isha prayers which are
concluded at about 9.30 p.m. There was light of
the moon as well as of the neighboring houses and
the electric poles in the lane. The date of
occurrence was 11th day of Lunar month and the
place of occurrence is near the mosque as well as
many houses close by. Therefore, identification
was possible. Further a known person can be
identified from a distance even without much
light. The evidence of PW-3 has also been
corroborated by the evidence of others. Evidence
of PWs 3 to 5 proves that identification was
possible."
50. Hence, it is evident from the record, that on
28.04.2010, it was a full moon night, moreover there was
street light and light was also coming from the nearby
houses. Additionally, the appellants were known to PW-
6 (father of the deceased) and PW-11 (brother-in-law of
the deceased) and were not strangers or unknown to
PW-6 and PW-11, which made the identification of the
appellants easier. Hence the argument raised by counsel
for the appellants that PW-6 and PW-11 could not have
witnessed the incident is without force."
(emphasis supplied)
33. In addition to the aforesaid, we deem it appropriate to refer to the
findings of the trial court in this regard:
"The house of both the families were located just
opposite each other and they might have been very well
acquainted with and aware of the faces and physiques of
all the family members of the other party. Though it has
been stated by them that there was dark at that time, but
there is nothing to suggest that the darkness was so thick
so as to prevent them even from identifying the well-
known faces of their neighbours."
(emphasis supplied)
34. Hence, having discussed the position of law in relation to
identification of the assailants where there is paucity of light, we are
of the considered view that due to the relations shared by the
appellants and the deceased along with the PW-1 (Kanwar Pal
Singh), PW-2 (Vicky @ Dal Chand) and PW-3 (Geeta) i.e. being the
neighbour of each other, it would not have been difficult for the
prosecution witnesses to have identified the assailants. Hence, the
contention of the appellants is answered in the negative.
MOTIVE
35. During the course of arguments, an apprehension was expressed by
the learned counsel for the Appellants that motive is of paramount
importance and absence of motive, in a case of direct or
circumstantial evidence is critical to the version of the prosecution.
However, in the present case there is enough evidence to show
that the incident took place due to trivial issue of flow of water from
the house of the complaint in the drain because of which foul smell
was emanating.
Moreover, in the present case the conviction passed against the
appellants is under Section 304 Part II whereby the circumstances
show that the incident took place due to sudden quarrel hence the
argument raised by the learned counsel for the Appellants in relation
to motive is of no significance.
However, it is a settled legal proposition that even if the
absence of motive as alleged, is accepted, the same is of no
consequence and pales into insignificance when direct evidence
establishes the crime. Therefore, in case where there is trustworthy
evidence of witnesses as to commission of an offence, the motive
part loses its significance. (Ref. Yogesh Singh v. Mahabeer Singh reported in
(2017) 11 SCC 195), ( Ref . Khurshid Ahmed Vs State Of Jammu And Kashmir
reported in 2018 7 SCC 429). In the present case also there is direct and
reliable evidence in relation to occurrence of the incident, hence, not
proving the motive for commission of the offence does not hold
much relevance.
CONCLUSION
36. Placing reliance on the testimonies of PW-1 (Kanwar Pal Singh),
PW-2 (Sh. Vicky @ Dal Chand) and PW-3 (Geeta), read along with
the medical evidence on record, the prosecution has been able to
establish that it was due to the acts of the appellants committed in
furtherance of the common intention of both, the death of the
deceased and the injuries on the person of PW-1 (Kanwar Pal
Singh), PW-2 (Sh. Vicky @ Dal Chand) and PW-3 (Geeta) took
place. The contention that the witnesses are interested and related
witnesses or that there exist improvements and discrepancies in their
testimonies has already been dealt above and holds no ground to
acquit the present appellants.
37. The prosecution having proved its case beyond all reasonable doubt,
we find no infirmity in the judgment passed by the learned Trial
Court and see no cogent reason to interfere with the same. The
conviction of the appellants under section 304 Part (II) read with
section 34 of the Indian Penal Code and section 308 read with
section 34 of the Indian Penal Code is upheld. Accordingly, the
appeal is dismissed.
38. Copy of the judgment be sent to the Jail Superintendent, Tihar Jail.
39. Trial Court record be sent back along with a copy of this judgment.
SANGITA DHINGRA SEHGAL, J.
MANMOHAN, J.
JANUARY 31, 2020
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