Yogesh vs The State (Govt. Of Nct) Delhi
2021 Latest Caselaw 3253 Del

#J-1

    IN THE HIGH COURT OF DELHI AT NEW DELHI


                                 Judgment Reserved On : 31.08.2021
                               Judgment Pronounced On : 30.11.2021


+      CRL.A. 625/2020

YOGESH                                              ..... Appellant


                             versus


THE STATE (GOVT.OFNCT DELHI)                        .... Respondent


+      CRL.A. 626/2020

AKASH @ BUNTY                                       ..... Appellant


                             versus


THE STATE (GOVT.OFNCT DELHI)                        .... Respondent



Advocates who appeared in this case:
For the Appellant:  Mr. Sumeet Verma and Mahinder Pratap Singh, Advocates
                    for Appellant Yogesh.
                    Mr.Manu Sharma, Advocate for Appellant Akash @
                    Bunty


CRL. A.625/2020 and CRL. A.626/2020                           Page 1 of 16
 For the Respondent:    Mr. Ashish Dutta APP for the state with Inspector Ravi
                       Kumar, P.S: Alipur

CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI

                              JUDGMENT

SIDDHARTH MRIDUL, J

1. The present Criminal Appeals instituted under section 374(2)

read with Section 383 of the Code of Criminal Procedure,

1973 (hereinafter referred to as the "CrPC") emanate from a

common judgment dated 29.02.2020 and order on sentence

dated 06.03.2020 passed by the Ld. Additional Sessions Judge

(NDPS), North District, Rohini Courts, Delhi, whereby the

Appellants have been convicted and sentenced for committing

the murder of the deceased, Vimal Kumar alias Mohit, by

stabbing him with a knife whilst robbing his mobile phone.

2. By way of the common judgment dated 29.02.2020 and order

on sentence dated 06.03.2020, both the Appellants have been

convicted for commission of offences punishable under section

302 read with section 34 of the Indian Penal Code, 1860

(hereinafter referred to as "IPC") and sentenced to undergo

rigorous imprisonment for life along with a fine of Rs.10,000/-

each, in default whereof, both the Appellants have been

sentenced to undergo simple imprisonment for two years, each.

For the commission of offences punishable under section 392

read with section 34 of the IPC, both the Appellants have been

sentenced to undergo rigorous imprisonment for five years

along with a fine of Rs.10,000/- each, in default whereof, both

the Appellants have been sentenced to undergo simple

imprisonment for one year, each. The Appellant in Criminal

Appeal No.626 of 2020 (hereinafter referred to as "Appellant

No.2") has also been convicted for the commission of offence

punishable under section 397 of the IPC has been sentenced to

undergo rigorous imprisonment for seven and a half years

along with a fine of Rs.10,000/- each, in default whereof, the

Appellant No.2 has been sentenced to undergo simple

imprisonment for one year. Further, Appellant No.2 has also

been convicted for the commission of offence punishable

under section 27 of the Arms Act, 1959, and has been

sentenced to undergo rigorous imprisonment for four years

along with a fine of Rs.10,000/- each, in default whereof, the

Appellant No.2 has been sentenced to undergo simple

imprisonment for six months. All sentences have been ordered

to run concurrently.

3. The case of the Prosecution giving rise to the present appeals

is that on the intervening night of 13/14.07.2012, information

regarding a stabbing incident near Kacha Rasta, Tikri Village

was received and pursuant to the same, PW-13 (HC Rajender

Singh) alongwith gunman and driver reached the spot and saw

a person lying in a pool of blood. The victim was put in the

PCR van and taken to SRHC Hospital. A DD No.34A

(Ex.PW-6/A) was prepared, pursuant to which, SI Dinesh

Dahiya (PW-26) alongwith SI Dinesh (PW-28) reached the

spot and came to know that the injured person had been taken

to SRHC Hospital. They called the beat staff at the spot and

proceeded to SRHC Hospital. After reaching the hospital, it

was found by them that the victim had been declared as

"brought dead". Upon inquiry at the hospital, a witness i.e.,

PW-3 was found, and his statement was recorded (Ex.PW-

3/A). As per the statement of PW-3, they were attacked by the

Appellants who approached them on their motorcycle. The

Appellants stabbed the victim, Mohit, and also robbed him off

his mobile phone. They also caught hold of PW-3, but he

managed to free himself from their clutches and ran home and

informed his uncle (PW-4) of the incident. PW-4 collected

some people from the locality and reached back to the spot

with PW-3. After reaching back at the spot, they found that

victim had been taken to the hospital by the PCR van. They

also reached the hospital thereafter and found that the victim

had succumbed to the injuries inflicted upon him.

4. After the completion of investigation, Chargesheet was filed in

the court of Ld. ACMM, North District, Rohini Courts, Delhi

whereafter the case was committed for trial to the Ld. ASJ.

Thereafter, Charge was framed against the Appellants under

section 302 read with section 34 of the IPC, and under section

392 read with section 34 of the IPC to which they pleaded not

guilty and claimed trial. Charge was also framed against

Appellant No.2 under section 397 of the IPC as well as under

section 27 of the Arms Act, to which he pleaded not guilty and

claimed trial.

5. The Prosecution examined 39 witnesses during the course of

the trial. Whereafter, the statements of the Appellants were

recorded under section 313 of the CrPC. In their statements,

both, Appellant No.1 and Appellant No.2 stated that they had

no role to play in the incident. They also stated that the vehicle

i.e., motorcycle bearing number DL 8S AA 4405 was called to

the police station and retained by the police [Ex.PW-11/3].

They further stated that there was no recovery made at their

instance and there has been no identification of the alleged

weapon of offence i.e., a knife [Ex.PW-11/6]. They both

further stated that the recovery was planted by one of the

police officials. Both the Appellants also stated that they were

taken to the police chowki Bhorgarh at 09:00 P.M. on

13.07.2012 after some police officials came to their house in

plain clothes and asked them to accompany them on the

motorcycle for investigation. They stated that on 14.07.2012,

they were asked to call their mother to the police station with

their ID proofs. They also stated that they were both illegally

detained for two days. They further stated that they did not

make any disclosure statement to the police. They also denied

that any document or pointing out memo was prepared on their

pointing. They stated that they have been falsely implicated in

the matter and that the police has falsely deposed against them.

They also stated that they were forced to sign on papers and

that they were abused and beaten by SI Satyair as well as by

other police officials. They also stated that in this regard, a

complaint was filed against SI Satyavir and the proceedings

qua the same were pending in the Court of Ld. Metropolitan

Magistrate, Rohini Courts, Delhi. They deposed that owing to

the complaint made them against the police, they have been

falsely implicated in the matter.

6. In sum and substance, the Ld. Counsel for the Appellants have

raised the following contentions challenging the case of the

prosecution as well as for assailing the impugned judgment

and order on sentence passed by the Ld. Trial Court:

(i) The testimony of PW-3 is completely unreliable as he

has completely recanted from his statement made in

examination-in-chief. There are major contradictions in

the statement of PW-3 in as much as the date of the

incident is stated to be 14.07.2012, whereas it has been

noted as 13.07.2012 in the FIR [Ex.Pw-2/A]. In his

cross-examination, PW-3 deposed that he could not

identify the motorcycle and the knife. PW-3 has also

stated that there was no light at the spot of the incident

and that, therefore, he could not possibly have seen

any of the assailants. Further, in the FIR, there is

arguably no mention of robbery.

(ii) The recoveries made in the case cannot be accepted as

legal recoveries to bring home the guilt of the

Appellants since the same were not even recovered in

the present case.

(iii) Alternatively, the offence, even if hypothetically

deemed to have been committed, is only one of

culpable homicide not amounting to murder, since the

injury admittedly had been caused on the thigh, which

is a non-vital part of the body, and because there is no

evidence on record to demonstrate the intention of the

Appellants to cause death of the deceased victim.

7. We have heard the learned Counsel for the Appellant and State

at considerable length. The homicidal death of the deceased is

not in dispute. It was specifically stated by PW-30 in the

Postmortem report (Ex.PW-30/1) prepared by him as well as in

his testimony that "death was due to hemorrhagic shock

consequent upon stab injury no.1. The injury was antemortem,

fresh in duration and caused by single edged sharp object like

knife. The injury was sufficient in the ordinary course of

nature to cause death." He further deposed that the injury

upon the person of the deceased victim could have been

possible from the examined knife [Ex.PW-11/5]. Further, a

reading of the testimony of PW-3 would reveal that deceased

victim had been stabbed in the thigh with a knife, which

corroborates the medical evidence adduced by PW-30. The

same is also corroborated by the statements made by the police

officials that they were informed of an incident of stab injury.

8. The only question which thus subsists is, whether the

Appellants are responsible for causing the death of the

deceased by inflicting stab injury on his person, whilst

committing the robbery of his mobile phone.

9. The Prosecution's asseverations against the Appellants, rest in

large measure on the ocular evidence of PW-3 who deposed in

his examination-in-chief that he resides at B-4/6, Swaran

Jyanati Vihar, Tikri Khurd, Delhi with his uncle (PW-4). The

victim/deceased used to stay at the first floor of the same house

and used to work with PW-3 at a factory of slippers at

DSCIDC, Narela. On intervening night of 13/14.07.2012, PW-

3 was returning home from work with the deceased when the

Appellants approached them on a motorcycle. The Appellants

forcibly searched the pocket of PW-3, and when nothing was

found, they caught hold of his neck and started beating the

victim, Mohit. They also snatched and robbed the mobile

phone of the victim. One of the Appellants contemporaneously

stabbed the victim on his thigh. After PW-3 managed to free

himself from the clutches of the Appellants, he ran to his house

and informed his uncle (PW-4). PW-4 collected some people

from the locality and reached back to the spot with PW-3.

After reaching back at the spot, they found that victim had

been taken to the hospital by the PCR van. They also reached

the hospital thereafter, where their statements were got

recorded.

10. In his cross-examination, PW-3 resiled partly from the

statement he made during his examination-in-chief. However,

there appears to be no reason in law why the entire testimony

of PW-3 ought to be effaced or entirely and completely

disregarded as unreliable on this ground because during his

examination-in-chief, PW-3 correctly identified the Appellants

[Ref: Khujji @ Surendra Tiwari vs State of Madhya Pradesh

reported as 1991 (3) SCC 627, as well as, Hari & Anr vs The

State of Uttar Pradesh pronounced by the Apex Court on

26.11.2021 in Crl A.186/2018]. His testimony with regard to

the robbery of the mobile phone of the deceased victim also

remained unchallenged and consequently uncontroverted on

behalf of the Appellants. He also identified the weapon of the

crime as well as the motorcycle. The seizure and recovery have

been proved by the testimony of PW-11, which has remained

unshaken during the cross-examination. His testimony further

proved the seizure of the motorcycle and the recovery of the

weapon of the crime i.e., knife. [Ex.PW-11/3 qua Motorcycle;

Ex.PW-11/4 qua Mobile phone, and Ex.PW-11/6 qua Knife]

11. Further, the Appellants categorically refused to participate in

the judicial TIP, which also lends itself to drawing an adverse

inference against them. No witness has been examined to

prove the uncorroborated defence of the Appellants that they

had been shown to many persons while they were in police

custody, and to the effect that they were also brought to the

court unmuffled and shown to interested persons/public.

12. Therefore, in view of the above, it can reasonably be

concluded that the prosecution has successfully proved beyond

a shadow of doubt that the Appellants, in order to commit

robbery, attacked the victim and PW-3, robbed the mobile

phone of the victim and stabbed him with a knife causing his

unfortunate death at the young age of 25 years.

13. With regard to the argument advanced on behalf of the

Appellants that this is not a case of culpable homicide

amounting to murder, it would be profitable to apply the test in

Virsa Singh (reported as AIR 1958 SC 465) to the facts of the

present case. Per the Virsa Singh Test, the prosecution must

first, establish quite objectively, that a bodily injury is present;

secondly, the nature of the injury must be proved. Thirdly, it

must be proved that there was an intention to inflict that

particular injury, that is to say, that it was not accidental or

unintentional or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry

proceeds further, and fourthly, it must be proved that the injury

of the type just described made up of the three elements set out

above was sufficient to cause death in the ordinary course of

nature.

14. In the present set of facts, it has been established beyond

reasonable doubt that the stab injury inflicted upon the person

of the victim was committed by the Appellants whilst robbing

him of his phone and at the time of attacking both the victim

and PW-3. There remains no shadow of doubt that this bodily

injury, which has been opined as sufficient to cause death in

the ordinary course of nature, was caused with intention and

not accidentally.

15. From the foregoing, there is clear and irrefutable ocular

evidence which inspires the confidence of this Court in

establishing the guilt of the Appellants beyond reasonable

doubt, which is also independently corroborated and supported

by, (i) the recovery of the weapon of the offence/crime i.e., the

knife at the instance of the perpetrators; and (ii) the medical

evidence with regards to the stab injury which was opined to

have been caused by the knife and opined further as likely to

cause death in the ordinary course of nature; and (iii) the

motive for the commission of the crime i.e., robbery of the

mobile phone of the deceased victim.

16. Before parting with the case, it would be trite to note that the

present is an extremely unfortunate case where a young boy,

who worked hard in order to make ends meet, tragically lost

his life because of the menace created by the delinquents of

society. Safety and security of the people is axiomatically

paramount for them to lead a good, dignified life. Owing to

delinquency, the society is losing faith in the system. The

offenders, thus, need to be dealt with a stern hand. Even one

life lost, is an irreparable loss we bear as a nation forever.

17. Thus, in our considered opinion, there is no merit in the

appeals and the decision of the Ld. Trial Court warrants no

interference or modification. The judgment dated 29.02.2020

as well as the order on sentence dated 06.03.2020 passed by

the Ld. Trial Court are upheld.

18. The present Appeals are accordingly dismissed.

19. Pending applications, if any, are also disposed of.

20. No order as to costs.

21. A copy of this judgment be communicated to the Appellants

through the Superintendent, Tihar Jail, as well as to learned

counsel appearing on behalf of the parties electronically and be

also uploaded on the website of this Court forthwith.

SIDDHARTH MRIDUL (JUDGE)

ANUP JAIRAM BHAMBHANI (JUDGE)

NOVEMBER 30, 2021 danish

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