Delhi High Court

Nadeem vs State on 28 April, 2022

#J-1
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved On: 14.12.2021
Judgment Delivered On: 28.04.2022

CRL.A. 8/2020

NADEEM .....Appellant

versus

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

2
CRL.A. 10/2020

NARESH @ RAJU .....Appellant

versus

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

3
CRL.A. 79/2020

[email protected] RAJU .....Appellant

versus

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

4
CRL.A. 111/2020

NITIN @ PINTU @ AATISH .....Appellant

versus

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

CRL.A. 8/2020, CRL.A. 10/2020, CRL.A. 79/2020, CRL.A. 111/2020 Page 1 of 24
Advocates who appeared in this case:

For the Appellants: Ms. Manika Tripathy and Mr. Shubham Hasija, Advocates
for Appellant Nadeem.
Mr. M.L. Yadav Advocate for Appellant Naresh @ Raju
Mr. SulaimanMohd. Khan for Appellant Mohsin @ Raju
Mr. Biswajit Kumar Patra for Appellant Nitin @ Pintu @
Aatish

For the Respondent: Mr. Ashish Dutta APP for the state withInspector Umesh,
P.S: Nihal Vihar.

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

JUDGMENT

SIDDHARTH MRIDUL, J

1. The present batch of criminal appeals being Criminal Appeal

Nos. 8/2020, 10/2020,79/2020 and 111/2020 instituted under the

provision of section 374(2) of the Code of Criminal Procedure, 1973

(Cr.P.C), assail the judgment of conviction dated 11.10.2019 and the

order on sentence dated 17.10.2019, rendered by learned Additional

Sessions Judge, West-02, Tis Hazari Courts, Delhi, in Session Case

No. 58184/16, titled as 'State vs. Nadeem and Ors', emanating from

F.I.R. No. 174/2011 registered under Sections 302/307/34 of the

Indian Penal Code, 1860 (IPC), at Police Station Nihal Vihar.

2. By way of the impugned judgment dated 11.10.2019 and the

order on sentence dated 17.10.2019, appellants namely Nadeem

(‗Appellant No.1'), Naresh @ Raju (‗Appellant No.2'), Mohsin @

Raju (‗Appellant No.3'), and Nitin @ Pintu @ Aatish (‗Appellant

No.4') were convicted for committing the murder of the deceased

victim Manoj s/o Charan Singh by inflicting deadly injury upon the

deceased with dandas and subsequently stabbing him with a knife in

furtherance of their common intention. All the Appellants were

convicted and sentenced for the offences mentioned as under:

―i. qua offence punishable u/s 302/34 IPC, to undergo Rigorous Imprisonment for life and to pay fine of Rs. 5000/- each. In default of payment of fine to further undergo R.I. for three months;

ii. qua offence punishable u/s 307/34 IPC, to undergo Rigorous Imprisonment for two years and to pay fine of Rs. 3000/- each. In default of payment of fine to further undergo R.I. for three months.‖

All the sentences were directed to run concurrently, whilst according

the benefit of Section 428 Cr.P.C to all the convicts/appellants, herein.

3. The fulcrum of the case of the prosecution is that on the night of

03/04.06.2011,the Appellant Nos.1, 2, 3 and 4 (hereinafter collectively

referred to as ‗Appellants'), sharing common intention, caused stab

injuries on the body of Manoj s/o Sh. Charan Singh r/o G-44/14,

Laxmi Park, Nangloi, Delhi (hereinafter referred to as ‗the deceased')

leading to his death. The injuries were caused with a knife [Ex.PW-

26/B] and danda [Ex.PW-21/O] as a vendetta owing to previous

enmity and animosity with the deceased. After committing the murder,

the appellants absconded from the crime spot. The entire incident was

witnessed by PW-4 Smt. Gudiya w/o Jagbir Singh; PW-6 Jagbir Singh

(brother of deceased and injured eye witness); and PW-2 Amit

Bhardwaj (neighbour and eyewitness who turned hostile); who were

statedly present with the deceased at the time of the incident.

4. A PCR call [Ex.PW-5/A] was received from mobile No.

9891285918 by Ct. Anita (PW-5) regarding stabbing of one person

with knife, and Daily Diary No.42-B was lodged at Police Station:

Nihal Vihar, Delhi (hereinafter referred to as ‗the Police Station').

Sub-Inspector Dinesh Chandra (PW-14) alongwith Constable Yudhbir

Singh (PW-18) reached the crime spot where they found blood on the

road and upon inquiry, it was revealed that the injured has been shifted

to the hospital. By this time, beat constable Ct. Kuldeep (PW-17) also

arrived at the spot. SI Dinesh Chandra (PW-14) prepared the rukka

(Ex.PW-6/A, CX, 15/B) and handed over the same to Ct. Yudhbir

(PW-18) with a direction to get the FIR registered (Ex.PW-15/A) and

also requesting that the investigation be marked to (PW-30) Inspector

Sehdev Kumar Rana, ATO, Nihal Vihar. After registration of the FIR,

investigation was handed over to Inspector Sehdev Kumar Rana (IO).

Thereupon, IO Sehdev Kumar Rana also reached the crime spot, and

got the same inspected through the Crime Team whilst

contemporaneously photographing the scene of crime from different

angles and also seizing blood stained earth samples[Ex.PW-

17/A].Thereafter the site plan [Ex.PW12/A] was prepared. The dead

body of the deceased was sent for post mortem at DDU hospital

[Ex.PW-26/A]. On 04.06.2011, PW-30 conducted inquest proceedings

and the dead body of the deceased was identified by Mr. Gajendra

Singh and Mr. Brijendra Singh [vide Ex.PW-3/A and Ex.PW-30/A,

respectively]; and thereafter the dead body of the deceased was

handed over to his relatives [vide Ex.PW-3/B]. On 06.06.2011, all the

Appellants surrendered before the court and the IO arrested all the

appellants vide the following Arrest Memos: Appellant No.1 [Ex-PW-

21/E], Appellant No.2 [Ex-PW-21/G], Appellant No.3 [Ex-PW-21/F],

and Appellant No.4 [Ex-PW-21/H], respectively; and IO PW-30

further sought permission to interrogate them. During the course of

interrogation appellants made disclosure statements admitting their

involvement in the offence [Ex.PW-21/A, 21/B, 21/C, and 21/D].

Thereupon, the weapon of offence i.e. blood stained knife was got

recovered and was seized at the instance of Appellant No.1, Nadeem

vide seizure memo [Ex.PW-21/N]; as well as dandas were recovered

and seized at the instance of Appellant No.2, Appellant No.3, and

Appellant No.4, vide seizure memos [Ex.PW-21/O, 21/Q, 21/P]

respectively.

Furthermore, a white coloured blood stained pant with sticker of

FLU jeans on it was recovered at the instance of Appellant No.1,

which he was wearing at the time of the commission of the offence

[Ex.PW21/I].

The IO also filed the application for conducting Test

Identification Parade (TIP) of Appellant No.2 and Appellant No.4 but

both the appellants refused to participate in the judicial TIP.

The Exhibits were sent to the Forensic Science Laboratory

(hereinafter referred to as ‗the FSL'). In the FSL examination

[Ex.PW-29/B] it was discovered that human blood was present on the

clothes recovered at the instance of the Appellants as well as on the

knife, however, the specific blood group could not be detected. Insofar

as the post-mortem report is concerned [Ex.PW-26/A], it has been

specified therein that, the following injuries were present on the body

of the deceased:

―1. Clean incised wound 1 in No. present on the lateral aspect of left upper forearm 10 cm from left elbow, obliquely placed of size 4 cm x 1.8 cm x bone deep with lower angle acute and upper angle obtuse with clear cut regular margin, liquid and clotted blood present in and around margin.

2. Incised stab wound present on the middle part of lower abdomen of size 3.2 cm x 1.3 cm deep to abdominal cavity, 4 cm below and right to umblicus, 25 cm belowxiphisternum, 12 cm from right iliac spine with lateral angle obtuse and medial angle acute. Omentum and mesentry coming out through the wound with liquid and

clotted blood present in and around the wound. On further exploration of the wound penetrating injury present piercing omentum, mesentry, intestinal loop and reached upto abdominal aorta making a tear of 3 cm.‖ It has been opined by Dr. Komal Singh (PW-26) that the cause

of death was haemorragic shock caused by penetrating injuries to

abdominal aorta, omentum and mesentry by sharp edged pointed

weapon like knife/chhura etc; all injuries were ante-mortem in nature.

Injury No.2 was sufficient by itself to cause death in the ordinary

course of nature.

5. Charges were framed vide order dated 18.10.2011, to which all

the appellants pled not guilty and claimed trial. At the trial, the

prosecution examined 31 witnesses in support of its case.

6. The Appellant No.1 in his defence chose not to lead any

evidence. However, it had been stated by him in his statement under

Section 313 Cr.P.C that he had been falsely implicated in the present

case at the instance of PW-6 Jagbir who had previous enmity with

him. Moreover, the recovery of the weapon of offence viz. the knife at

his instance was denied by him.

Furthermore, Appellant No.2, Appellant No.3 and Appellant

No. 4 in their statements under Section 313 Cr.P.C, whilst disputing

the recoveries of dandas at their instance, also stated that they had

been falsely implicated in the present case in order to solve a blind

murder by the police.

7. The Trial Court whilst rejecting the defence set up by the

Appellants, convicted them as stated hereinbefore. Broadly, the

grounds that have contributed towards the conviction of the

Appellants before the Trial Court are as follows:

i) The testimony of PW-4, the eyewitness as well as PW-6 injured eyewitness, being consistent, credible and truthful;

ii) PW-4 has identified the Appellants in Court. Furthermore, PW-4 has elaborated on the specific roles played by each of the Appellants in the commission of the crime;

iii) Recovery of the weapon of offence [Ex.PW-21/N] at the instance of Appellant No.1 and the opinion of Dr. Komal Singh (PW-26) that the stab injuries could have been caused by the said weapon;

iv) Refusal on the part of the Appellants to participate in the T.I.P. proceedings;

v) Common intention shared by the Appellants to take revenge of the insult, from PW-6 and his deceased younger brother, in causing the injuries present on the body of the deceased as well as on PW-6;

vi) The stab injury in the stomach i.e. Injury No.2, being sufficient to cause death in the ordinary course of nature.

8. Ms. Manika Tripathi, learned counsel appearing on behalf of

the Appellant No.1 would submit that there is material contradiction in

the statements of PW-4 and PW-6 recorded u/s 161 Cr.P.C and the

deposition given before the court, wherein at one instance, only

Appellant No.1 Nadeem is stated to have wielded the knife, whereas

in their deposition before the court it was stated that Appellant No.3

had also wielded the knife and inflicted injury upon the person of PW-

6. It is further submitted that, PW-2 Amit Bhardwaj has turned hostile

and has not supported the case of the prosecution. It is also submitted

that no fingerprints were taken from the recovered weapon of offence

nor any FSL Test was conducted in that regard to establish the user of

the weapon. It is further submitted that, all the Appellants voluntarily

surrendered before the trial court within 2 days of the commission of

the crime; as soon as they received information about the FIR

registered against them. This itself is urged to be indicative of the fact

that the Appellants did not try to flee the law and have been

cooperative throughout the investigation.

9. Mr. M L Yadav, learned counsel appearing on behalf of the

Appellant No.2 would submit that there are glaring contradictions and

material improvements in the testimony of the purported eye witnesses

PW-4 and PW-6. It is also submitted that the role ascribed to the

Appellant No.2 of inflicting injury upon the deceased with danda, is

not proven by the medical evidence on the record as no bruise marks

have been found on the body of the deceased. It is further submitted

that refusal to participate in TIP by the Appellants was owing to their

assertion that they had been shown to the eye-witnesses at the police

station. It is further submitted that none of the eye-witnesses has

distinctly identified the Appellants; and that PW-4 has collectively

identified all the Appellants. It is further submitted that there was no

material evidence on record to show that there was a pre-meeting of

minds between the Appellant No. 2 and the other appellants prior to

the commission of the alleged offence. It is also submitted that the

recovered weapon of offence in the present case had been planted

upon the Appellant No. 2 and other appellants and that is why no

independent witness was joined during the recovery of alleged weapon

of offence from the Appellant No.1; and the witnesses to the

recoveries are interested witnesses, since PW-6 was the brother of the

deceased and PW-4 is the wife of PW-6.

10. Mr. Sulaiman Mohd. Khan, learned counsel appearing on behalf

of the Appellant No.3 Mohsin, whilst subscribing to the submissions

made by other learned counsel for the appellants, would submit that

Appellant No. 3 was not even present at the spot and that he was

falsely implicated in the case owing to previous enmity that existed

between PW-6 and his brother/Appellant No.1, as is reflected from the

circumstance that as per the deposition of PW-4 before the Trial

Court, the police had recovered two knives from the spot but the

prosecution's case is that there was only one knife; this vast

improvement indicates that this witness is not a reliable or credible

witness, and it is therefore unsafe to uphold the conviction of the

Appellant No.3 premised on his testimony. Moreover, PW-6

recognized three dandas before the trial court which were allegedly

used in the commission of offence, but no medical evidence to show

that the deceased died of danda blows is available, and rather the

cause of death is admittedly by a sharp edged weapon; thus the cause

of death is neither by the alleged danda blows given by Appellant No.

3 nor was he found to be possessing a knife. It is also submitted that,

FSL/Scientific examination reflects that no blood was detected upon

the danda allegedly used by Appellant No. 3, although the I.O. has

falsely shown in the Seizure Memo that blood was present on the

danda seized at the instance of the Appellant No. 3. Thus, it was

argued that the Appellant No. 3 was falsely implicated merely owing

to previous enmity with PW-6.

11. Mr. Biswajit Kumar Patra learned counsel appearing on behalf

of the Appellant [email protected] Pintu, would submit that the learned

trial court erred in failing to appreciate that, no blood was found on

the danda recovered at the instance of the Appellant No.4 nor was the

cause of death said to be the injury inflicted by the said danda. It is

also submitted that PW-4 and PW-6 did not name the Appellant No. 4

at the time of the alleged offence but merely addressed him as an

associate and that such a vague imputation cannot be the basis for

conviction under Section 302 IPC. It is further submitted that refusal

to participate in TIP by the Appellant No. 4 is due to the circumstance

that he had been shown to the eye-witnesses at the police station.

12. Per Contra Mr. Ashish Dutta, Ld APP appearing for the State,

whilst opposing the arguments of the Appellants and supporting the

judgment and order of conviction passed by learned trial court in-toto,

would submit that all the PWs examined by the prosecution have

remained firm and withstood the test of cross examination and have

thereby proved the case of prosecution beyond the pale of reasonable

doubt. It is also submitted that the prosecution has been able to

establish its case clearly and categorically; and merely because there

are some discrepancies in the testimony of the PWs, that does not take

away their clear and unequivocal deposition before the Ld Trial Court;

and that the prosecution in law is not required to procure or reproduce

a parroted version of the PWs. It is also argued that PW-4 Gudia and

PW-6 Jagbir the star witnesses of this case being eye witnesses, have

both categorically deposed about the subject incident and have firmly

stood their ground during the cross examination and have further

corroborated each other on all relevant and material facts and

consequently proved the case of the prosecution beyond reasonable

doubt. Their testimonies also clearly establish the motive behind the

crime committed by the Appellants in furtherance of their common

intention of committing the murder of a young boy in his mid-

twenties.

It is further submitted in refutation to the argument that no

neighbour except PW-2 Amit Bhardwaj was cited as a witness and

even he turned hostile and did not support the case of the prosecution,

that PW-4 in her testimony has categorically deposed that when the

Appellants inflicted injuries on the person of deceased Manoj and

PW-6 Jagbir, neighbours came to rescue them; however, the

Appellants threatened the neighbours to kill them in case they

extended any help to the injured/deceased. It is result of intimidation

by the Appellants which terrified PW-2 and other neighbours in the

vicinity, thereby discouraging them from testifying against and

identifying the Appellants.

It is further submitted that, non-joining of public witness in the

recovery proceedings does not absolve the appellants from the

commission of a heinous offence.

It is also urged that non-mention of danda injuries or bruises in

the MLC of deceased or injured PW-6, is not fatal to the case of the

prosecution since it is not a natural corollary that a danda injury

would result in permanent bruises. Injuries caused by a danda may not

be visible but may cause internal injury on the bones. Further, since

there was no danda injury visible on the body, there was no question

of seeking subsequent opinion.

Ld APP, would also urge that refusal of Appellant No.2 and

Appellant No.4 to participate in TIP proceedings when requested by

PW-30, unerringly points towards their culpability and fear to face the

eye witness.

13. We have carefully considered the submissions made by learned

counsel for the Appellants and the learned APP; and closely examined

the evidence marshalled by the prosecution; as well as perused the

impugned judgment and sentencing order.

14. On the facts of the present case, it is undeniable that a young

man has lost his precious life, and now the court is confronted with the

question as to whether there was an intention to kill the deceased by

the Appellants in furtherance of their common intention so as to attract

the rigorous provision of section 302 IPC or was there merely an

intention to cause bodily injury, which would fall within the pale of

section 304 Part II thereof.

15. This court in Vipin Sharma & Ors.vs State reported as 2019 I

AD (Delhi) 109, whilst appreciating the distinction between Section

299 and Section 300 of the IPC and in particular, clause (3) of Section

300 thereof, reiterated the principle laid down in the celebrated

decision in Virsa Singh v. State of Punjab reported as AIR 1958 SC

465 as follows:

―15. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant Singh v. State of Kerala [AIR 1966 SC 1874: 1966 Cri LJ 1509] is an apt illustration of this point.

16. In Virsa Singh v. State of Punjab [AIR 1958 SC 465: 1958 Cri LJ 818] Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 300 ―thirdly‖. First, it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigations. 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. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

17. The ingredients of clause ―thirdly‖ of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows: (AIR p. 467, para 12)

―12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 ‗thirdly';

First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily 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 is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.‖ xxxx xxxx

19. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case [AIR 1958 SC 465 : 1958 Cri LJ 818] for the applicability of clause ―thirdly‖ is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted.

20. Thus, according to the rule laid down in Virsa Singh case [AIR 1958 SC 465] even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.

21. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons -- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.

22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.‖

16. At this stage, it would be profitable to briefly encapsulate the

legal position that has been settled by the Apex Court in the celebrated

judgment of Virsa Singh (supra) which is locus-classicus in criminal

jurisprudence, as follows:-

a) If the subject injury is intended and is not caused by an accident or otherwise is not unintentional and the injury is sufficient in the ordinary course of nature to cause death, then the same would fall under Section 300 clause (3) and be punishable under Section 302 of IPC;

b) If there is intent to cause a bodily injury likely to cause death, then the same would be a case of Section 304 Part I of IPC; and

c) If it is only a case of knowledge and not intention to cause a bodily injury likely to cause death, then

the same would fall under Section 304 Part II of IPC.

17. In the present case, Appellant No.1-Nadeem along with co-

appellants went to the dwelling of the deceased and PW-6, at late

night hours around 11:00 PM, and abusively enquired about the

whereabouts of the deceased from PW-4 by employing the derogatory

expression to a woman, verbatim : ‖Bhosdike, bata kaha hai Manoj

badmaash". It is stated by PW-4 in her deposition before the Ld Trial

Court that the Appellants came armed with knife and dandas with the

clear intention of inflicting injuries upon her Devar (deceased) as well

as on her husband PW-6; and categorically ascribed clear roles to each

individual Appellant.

18. Upon a plain reading of the testimonies of PW-4 and PW-6 read

in conjunction, it is reflected that both of them have unwaveringly

supported the case of the prosecution and have also remained

consistent with their testimonies and have corroborated each other, on

all material facts. They also successfully stood the test of cross-

examination; hence, their testimonies have remained unshattered,

unchallenged and unimpeached.

19. It is further pertinent to observe that PW-6 is an injured eye

witness and the testimony of an injured eye witness is kept on a higher

pedestal and is accorded a special status in law, as held by the Hon'ble

Apex Court in Abdul Sayeed vs. State of Madhya Pradesh, reported

as (2010) 10 SCC 254, reproduced as follows:

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

20. Another argument raised on behalf of Appellant No. 2-Naresh

and Appellant No. 4-Aatish, was to the effect that they were initially

not named in the FIR and have subsequently been falsely implicated in

this case. This argument cannot be sustained because an FIR is not

required or expected by law to be an encyclopaedia of the offence

committed. An FIR by its very nature and nomenclature is only a First

Information Report, which is to record the commission of an offence

contemporaneously and not an elaborate compendium of the offence.

During investigation, it was uncovered that both these Appellants

alongwith Appellant No.1-Nadeem and Appellant No.3-Mohsin had in

fact barged into the house of the deceased and caused grievous injuries

to him and his brother PW-6, resulting in the death of deceased

Manoj. Further, PW-4 Gudia and PW-6 Jagbir in their testimonies

have categorically mentioned the names of Appellants Aatish and

Naresh as well as the role played by them in the commission of the

offence. Also, the two dandas used by them at the time of the

commission of the offence were recovered at their instance vide

seizure memos EX.PW21/Q and Ex.PW21/P, respectively.

21. The argument put forward before us to the effect that PW-4 and

PW-6 are interested witnesses -being family members- and

resultantly the argument that their testimonies are not trustworthy is

untenable and specious. In this behalf we have carefully scrutinized

their testimonies; PW-6 admittedly is an injured witness and PW-4 is

the bhabhi of the deceased. The two of them alongwith the deceased

were present at the house, when the Appellants barged in and caused

the injuries which inter alia resulted in the unfortunate death of the

deceased Manoj. Since all three of them were present at the time when

the incident occurred, the argument made on behalf of Appellants that

they are interested witnesses does not hold water.

22. In criminal cases, it is often the case that the offence is

witnessed by a close relative of the victim, whose presence on the

scene of the crime is natural. The evidence of such a witness cannot

automatically be discarded by labelling the witness as interested.

There is a clear distinction in law between a related witness and an

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

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

under:

―10. As regards the contention that all the eye- witnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an ‗interested' witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between ‗interested' and ‗related' witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused‖.

23. Thus, in our considered view, both PW-4 and PW-6 cannot be

characterised as interested witnesses simply because they happen to be

related to the deceased victim. Their testimony is credible and inspires

confidence as they were witnesses to the commission of the offence

being present at the time it was perpetrated.

24. Another vital aspect which point towards the culpability of the

appellants is the recovery of the weapon of offence on their alleged

disclosure statements; and since the weapon of offence i.e blood

stained knife was in fact recovered at the instance of Appellant No.1

and one danda each was recovered at the instance of the other

Appellants namely, Mohsin, Naresh and Aatish. The FSL report

clearly establishes the presence of human blood on the knife, which

also points towards the commission of the offence by the Appellants

in concert.

25. It is also observed from the testimony of the post mortem doctor

(PW-26) Dr. Komal Singh; who opined in the post mortem report

[Ex.PW26/A] that the cause of death of the deceased was hemorrhagic

shock caused by penetrating injuries to abdominal aorta, omentum and

mesentry by a sharp edged pointed weapon like knife/chhura etc and

Injury No. 2 in particular was opined to be sufficient to cause death in

the ordinary course of nature. PW-26 further opined that the Injury

No. 2 was possible to be inflicted by the weapon of offence i.e the

knife used by the Appellant No.1and recovered on his disclosure

statement in the present case.

26. The argument of the appellants that PW-4 has testified that two

knives were used, whereas only one knife had been recovered by the

prosecution, thereby rendering the testimony of PW-26 unreliable, is

without merit. In this regard, we find ourselves in agreement with the

Trial Court where it observes as follows:

―If one imagines as to what might have transpired during the incident, that suddenly four persons barge into the house of victims and start giving beatings with the help of dandas and knife and the incident happens in a spur of moment, a

helpless lady (PW-4) trying to save her husband (PW-6) and dewar (since deceased), it cannot be expected of her to remember as to how many knives were being used and recovered. Even otherwise, in view of the fact that the disclosure statement of accused has now become admissible into evidence, this piece of testimony is not of much relevance and does not come to the rescue".

27. It is relevant to observe that, the Appellants have merely taken

the general plea of false implication and no specific suggestion has

been put by any of the appellants to this effect to the prosecution

witnesses as to why the appellants have been named by PW-6 in the

complaint. Further, the Appellants have not produced any cogent

evidence in their defence.

28. Therefore, in view of above discussion and the clear and cogent

evidence in the form of the testimonies of PW-4 and PW-6 - who

were the eye-witnesses - read in conjunction with the disclosure

statements of the Appellants leading to the recovery of the weapon of

offence at their instance; and the circumstance that PW-4 and PW-6

correctly identified the Appellants as well as the weapons of offence