Delhi High Court
[email protected] vs The State (Nct Of Delhi) on 7 October, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 31st August, 2022
Pronounced on: 07th October, 2022
CRL. A. 878/2019
PANCHI @PANCHPAL ..... Appellant
Represented by: Mr. D.K. Singh, Mr. Rishabh Kr.
Singh, Advs.
versus
THE STATE (NCT OF DELHI) ....Respondent
Represented by: Mr. Mukesh Kumar, APP for
State with SI Talis Khan, PS
Sangam Vihar.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
ANISH DAYAL, J.
1. The appellant assails the order and the judgment dated 20th April,
2019 by the learned Trial Court convicting the appellant for the offence
punishable under Section 302 IPC and order on sentence dated 24 th
April, 2019 awarding sentence of rigorous imprisonment for life to the
appellant and a fine of Rs.2,000/- (simple imprisonment for two months
in default of payment of fine). By the same impugned judgment, co-
accused Sumit @Akki @Akshay was also convicted for the commission
of offence punishable under Section 326/34 IPC and sentenced to a
period of six years for that offence. At the time of the hearing of the
appeal, it transpired that Sumit @Akki @Akshay had been released from
th
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prison on 16 October, 2019 having served his full sentence. As per the
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prosecution two others were also involved in FIR No.477/2013 dated
30th October, 2013 viz. "S" and "K", but when investigation commenced
both were found to be juveniles and hence their inquiries were
conducted before the Juvenile Justice Board.
The Incident:
2. As per the case of the prosecution, Sunny Kumar Gupta (PW-3)
stated that he along with Shahnawaz Ali and Ashwani on the intervening
night of 29th-30thOctober, 2013, around 12:00 a.m., went to K Block,
Sangam Vihar where they got involved in gambling with some boys.
One of those boys aged 20-25 years insisted that Shahnawaz should
gamble, who refused and a scuffle ensued between Shahnawaz and that
boy who summoned some other boys standing at some distance. The
appellant was one of them and had a knife and while two boys caught
hold of Shahnawaz, the appellant inflicted knife injuries on Shahnawaz.
Seeing this, Sunny and Ashwani got frightened and ran away. When
they came back after 15-20 minutes, they saw blood oozing out from the
chest and stomach of Shahnawaz. In the meantime, some persons had
already called the PCR and they shifted the injured Shahnawaz to
AIIMS Trauma Centre where he died during treatment. Pursuant to this,
rukka was endorsed and an FIR No. 477/2013 was registered under
Section 307 IPC. The crime team was called, who conducted the
investigation at the spot and when Shahnawaz died, Section 302 IPC was
added. Pursuant to the completion of the investigation, chargesheet was
filed. Charges were framed against the two accused Panchi and Sumit
@Akki and they pleaded not guilty and claimed trial. The prosecution
examined 30 witnesses, the statements of the accused were recorded
under Section 313 Cr.P.C. and no witnesses were examined in defence.
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Submissions by the Appellant:
3. In support of the appeal, the counsel for the appellant submitted
that there was no independent witness to the recovery therefore the
recovery could not be connected to the appellant. It was further
contended that the prosecution was unable to produce eye witness
Ashwani and another important eye witness PW-8, Harish Gupta did not
support the case of the prosecution. It was further contended that the
testimony of PW-3, Sunny Gupta was full of inconsistency and
contradiction. The circumstances of the arrest and consequent recovery
of the knife from Sumit @Akki was not credible and it was quite
probable that the death of the deceased was due to cardiac arrest as
evident from the testimony of PW-9.
Submissions by the Prosecution:
4. The learned Additional Public Prosecutor countering the case of
the appellant contended that the rukka, the FIR, statement under Section
164 Cr.P.C. and deposition of eye witness PW-3, Sunny were consistent.
The post mortem report categorically stated that injuries were serious
including the internal ones which were numerous and grave. The
subsequent opinion of the doctor was clear that injuries could have been
caused by the weapon recovered. Running away of PW-3 could not dent
his evidence since PW-3 had clearly stated that they ran away due to fear
but came back later to discover that Shahnawaz had been grievously
injured. As regards the testimony of PW-9, the doctor who conducted
the medical examination, he stated that the deceased had been taken for
emergency surgery and died during the surgery after developing cardiac
arrest. As per the learned APP, PW-9 only stated that because of the
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severe nature of injuries that had to be necessarily operated and during
the operation, he suffered cardiac arrest.
The Evidence:
5. The evidence which is relevant and necessary for the assessment
of the contentions of the parties is as under:
(i) PW-3, Sunny Gupta was the star witness being the eye witness to
the incident. It was on his complaint that the rukka was endorsed (Ex.
PW-3/A, 27/A and 13/B). Further, statement recorded under Section
161 Cr.P.C. (Ex. PW-3/PX) also records events that he had allegedly
witnessed on that fateful night. In his deposition before the Court, PW-3
stated that on that night, he along with his friend Shahnawaz and
Ashwani were consuming beer in Govindpuri, Gali no.14 at about 10:00-
10:30 p.m. and thereafter went to Sangam Vihar on his bike with both
his friends. Shahnawaz got down at Gali no.8, Sangam Vihar whereas
he along with Ashwani reached Gali no.19, K Block, Sangam Vihar
where 4-5 boys were gambling. He remained standing along with
Ashwani near the boys and in the meantime after 10-15 minutes,
Shahnawaz also reached there. One of the boys who were gambling
asked Shahnawaz to gamble with them but Shahnawaz refused to play.
Upon this a scuffle took place between Shahnawaz and that boy, whom
PW-3 did not know. Thereupon, the boy who was involved in this
scuffle, called the other boys who were gambling including the appellant
who was called out by his name "Panchi". Those boys including Panchi
rushed towards Shahnawaz. While PW-3 and Ashwani tried to take
Shahnawaz away from there, the appellant Panchi inflicted knife injuries
upon the chest and abdomen of Shahnawaz. PW-3 identified the
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appellant Panchi in the Court. PW-3 stated that the stab injuries were
inflicted by the appellant Panchi and two persons caught Shahnawaz
from behind when he was stabbed, whom he could not identify. After
the incident of stabbing, PW-3 along with Ashwani left the spot and ran
away in fear but came back after 15-20 minutes to the same spot and saw
Shahnawaz lying in the gali, blood oozing out from his chest and
abdomen. PW-3 took off his baniyan and tied it on the wounds of
Shahnawaz in order to stop the blood oozing from the body. In the
meantime, a PCR call had already been made by some person who had
reached the spot. They took the injured Shahnawaz to Trauma Centre,
AIIMS where his statement was recorded. PW-3 in his cross-
examination stated that he may not be sure about identifying the knife.
Later when being shown the knife as recovered, he stated that was not
the knife which had caused the injuries to Shahnawaz. The knife which
was used by the accused was a longer and wider blade and the end point
of that knife was rounded not pointed. The handle of the knife as per
PW-3 used in the commission of the offence was shorter in length and
was like a butcher‟s knife which is used for cutting meat. PW-3 further
identified the blood stained baniyan which was used by him to prevent
the wound of Shahnawaz from bleeding over. Ashwani Kumar is the
friend of PW-3 who was not produced before the Trial Court since he
was not traceable.
(ii) PW-8, Harish Gupta who was declared hostile by the prosecution,
stated that he woke up in the morning after the incident and heard some
quarrel in the intervening night but did not witness anything. He denied
that he used to charge from the persons gambling for using his premises
and also denied that the appellant Panchi and the accused Sumit used to
work for him. He denied his earlier statement Ex. PW-8/A as per which
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he had stated that he was an eye witness to the incident since he was part
of the gambling group.
(iii) PW-1, Dr. Pradeep Yadav, who conducted the post mortem,
deposed that on 31st October, 2013 after receiving the papers of the
inquest, he had conducted the post mortem on the body of Shahnawaz
and observed the following injuries on the body:
External Injuries:
1) Lacerated contusion, 4 cm x 3 cm with a laceration of 2 cm
x 1 cm x scalp deep was present over forehead in midline and
running towards left side, bluish in colour and 2 cm above
glabella.
2) Multiple abrasions, present in an area of 5 cm x 4 cm,
reddish in colour measuring 1 cm x 1 cm to 0.8 cm x 0.2 cm
over right cheek and 2.3 cm in front of helix of right ear.
3) Surgical stapled wound with two staple pins in situ. On
opening the wound, it was 2.5 cm x-1 cm x sternum bone deep
and was present on right side of chest wall and 1 cm lateral to
midline of sternum and is placed obliquely with sharp end on
the higher and medial side. The wound was 39 cm above-right
side of lower end of pubic symphysis. The wound was running
laterally, downwards and backwards upto a sutured rent in
diaphragm on right side and lower end of oesophagus.
4) Surgically stapled wound with two stapler pins in situ was
present over left side of chest wall, 4 cm lateral to midpoint of
sternum and 34 cm above the lower end of pubic symphysis on
left side. On opening the wound, it was 2.6 cm X 9 cm X cavity
deep running posteriorly, downwards and medially cutting the
anterior chest wall bones and muscles, the diaphragm and the
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wall of stomach (stitched wound). Wound was obliquely placed
over body with a sharp end present at lower and lateral end.
5) Surgically stapled wound with one stapler pin in situ was
present over left side of chest wall 11 cm left lateral to
midpoint of sternum and 30 cm above left anterior superior
iliac spine. On opening the wound it was 0.5cm X 0.5 cm x
intercostal muscle deep running medially, downwards and
posteriorly. The wound was present obliquely.
6) Surgically managed wound with two stapler pins and one
suture in situ was present on left lateral aspect of chest .wall
32 cm above left anterior superior iliac spine and 15.4 cm left
lateral to midpoint of sternum. On opening the wound, it was 3
cm x 0.8 cm x chest cavity deep running medially, posteriorly
and upwards and was horizontal.
7) Surgically sutured wound with two stapler pins in situ was
present over left side of abdomen 10 cm left of umbilicus and 9
cm above left anterior superior iliac spine. On opening the
wound it was 2, 1 cm x 0.5 cm x cavity deep present obliquely
with sharp end towards medial side. The direction of the
wound was downwards posteriorly and medially.
8) Surgically stapled wound with two pins in situ was present
over left side of abdomen, 14 cm from midline of abdomen and
12.5 cm from anterior superior iliac spine, on opening the
wound it was .2.2 cm x 1 cm x cavity deep and was obliquely
placed with a sharp end was on the medial and lower side. The
wound runs upwards medially and backwards.
9) Surgically stapled wound with four pins in situ was present
over right side of abdomen, 12 cm above right anterior
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superior iUac spine and 16 cm right from the midline. On
opening the wound it was 4 cm x 1 cm x cavity deep with both
ends blunt and obliquely placed running medially, backwards
and downwards.
10) Lacerated wound 1 cm x 1 cm x skin deep present over
right thumb on its proximal end.
11) Surgically sumred wound with two sutures in situ was
present over left side of back in para spinal area of lower back
5 cm above gluteal cleft and2 cm lateral from midpoint of
vertebra. On opening the wound it was 2.1cm X 0.5 cm x cavity
deep placed obliquely with both ends blunt and running
medially forwards and upwards.
12) Multiple abrasions in an area of 7 cm x 3 cm present over
anterior part of chest wall in midline measuring 2 cm x 1 cm to
1 cm x 0.9 cm, reddish brown in colour.
13) Laparotomy wound, 22 cm long and 7 cm above pubic
symphysis with exposed abdominal contents.
Internal Injuries:
1) Defect in ribs and chest wall was present corresponding to
external injuries no. 3, 4 and 5.
2) Surgically sutured rents in diaphragm on left and right side
was present.
3) Lower end of oesophagus showed collection of blood with a
laceration.
4) Plural cavity contained about 500 ml of blood tinged fluid.
5) Laceration of right middle lobe of lung and collection of
blood of about fist size was present at hilum of lung.
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6) Surgically managed arotic repair was present with
extravasation of blood.
7) Peritoneal cavity contained about one litre of blood tinged
fluid.
8) Stomach was empty. Anterior and posterior wall of stomach
showed surgically sutured wound.
9) Small intestine showed multiple laceration.
10) Extravasation of blood in left perinephric area.
As per his opinion, death was due to haemorrhagic shock consequent
upon multiple injuries to the chest and abdomen by a sharp weapon. All
injuries were ante mortem in nature and could be produced by an assault
by a knife. PW-1 gave a subsequent opinion upon being shown the
alleged weapon of offence and opined that the injuries mentioned in the
post mortem report as injuries no. 3-8 could be possible by the blade of
the alleged knife; injuries no. 1, 2 and 10 could be possible either by the
handle of the knife or any other blunt weapon; injuries nos. 9 and 12
could be possible by some other weapon but possibility of knife could
not be ruled out and injury no.14 was a surgical wound. He confirmed
that his opinion Ex. PW-1/C was given in relation to the knife of which
the sketch was exhibited as Ex. PW-1/B.
(iv) PW-4, Mukesh Kumar deposed that he was sleeping in his house
at Sangam Vihar and he heard a noise of quarrel and a boy calling out
for help in front of his house. When he opened the main gate, he saw
one boy lying in a pool of blood and he made a call to the police from
his mobile phone. PW-6, Smt. Soni @Shabana deposed that five years
ago she married Shahnawaz, resident of Bhagalpur, Bihar and they have
two children from the wedlock. She stated that the deceased used to
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drive an auto at Sangam Vihar, New Delhi and that Sunny and Ashwani
were friends of her husband and used to visit their house often. When
she had made the call on that night at about 12 midnight to the deceased,
he replied that he would reach after about 5 minutes and had asked her to
re-heat the food and told her that he was still at Sangam Vihar and would
inform her whenever he leaves for returning home. Thereafter, she had
received a call from Sunny from the mobile phone of her husband,
informing that her husband had been stabbed and asked her to reach
AIIMS Hospital. PW-7, Shamshad Ansari deposed that Shahnawaz was
his son and upon reaching AIIMS he had identified the dead body.
(v) PW-9, Dr. Shashi Kant Singh, who had conducted the medical
examination of Shahnawaz, exhibited the MLC as Ex. PW-9/B. The
MLC stated that Shahnawaz had been received on 30th October, 2013
night at about 02:43 a.m. as a case of assault on multiple sides by knife
at Sangam Vihar and had been brought in by the ambulance. The MLC
also notes about six stab wounds. PW-27, SI Kishan Gopal, who had
reached the spot with PW-25, Constable Bajrang, said that he recorded
Sunny‟s statement at AIIMS Hospital and later on that basis, the FIR
was registered. When he came back to the place of the incident at about
5:15 a.m., the crime team was present, conducting their investigation.
His testimony was corroborated by PW-25, PW-29, PW-12 and other
members of the police and crime team.
(vi) PW-30, Ms. Sunita Gupta, the Scientific Officer of Forensic
Science Laboratory (FSL), upon examination of the article seized opined
that blood was detected on the dirty baniyan by which PW-3 had tried to
secure the wound of the deceased and had been detected with blood
group „B‟ which was the same as that of the deceased.
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(vii) PW-29, Inspector Shahid Khan had taken over the investigation
once the charge of Section 302 IPC had been added post the death of
Shahnawaz. Regarding arrest of the accused, he stated that on 01st
November, 2013 PW-3 came to the police station early morning and
informed that the appellant and his associates were present in pahariwala
jungle, Ramleela Ground, K Block, Sangam Vihar, Delhi. PW-29 along
with the police team accompanied PW-3 to the above place and they
apprehended four persons from the jungle whose names were revealed as
Sumit @Akki, the appellant, "K" and "S". The accused led them to the
place of the incident and pointing out memo was prepared. During the
investigation, accused Sumit @Akki disclosed that after causing stab
injuries by the appellant Panchi, the knife was given to him which he
had thrown in the bushes in the jungle behind Ramleela Ground, Sangam
Vihar. PW-29 took the accused Sumit @Akki on 02nd November, 2013
to the jungle behind Ramleela Ground and the accused got one
buttondar knife recovered from the bushes in the jungle. The knife was
found lying in an open condition with some brownish stains and it
appeared that the knife had been washed.
(viii) As per the application for a subsequent opinion regarding weapon
of offence Ex. PW-29/E the knife in question sealed with the seal of
SGV-1-SED was sent for analysis. It was opened by PW-1, the doctor
from the FSL and he made a sketch of the knife which was exhibited as
EX. PW-1/B showing that the blade of the knife was 15.2 cm long,
maximum width was 2.4 cm with the blade being single edged and
pointed tip and the handle of the knife was 17 cm long and it was a
button style knife with decorating tips (pearl type) on the handle.
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Analysis
6. Having examined the evidence on record and after appreciating
the contentions of the counsel for parties, this Court is of the considered
view that the prosecution has been able to prove the guilt of the accused
beyond reasonable doubt for the commission of offence punishable
under Section 302 IPC, for inter alia the following reasons:
(i) The death of the deceased was clearly homicidal in nature as per
the post mortem report which notes severe external injuries, mostly stab
wounds (detail of the injuries are extracted above in para 5(iii)).
(ii) Before we advert to the testimony of PW-3, the eyewitness, it is
necessary to appreciate the context in which the testimony of PW3
becomes acutely critical.
(iii) First, there is no other eyewitness testimony available to the
prosecution. Even though the IO had taken the statement of Ashwani,
the boy accompanying PW-3 and Shahnawaz that night, who would
have been also an eye witness to the incident, he was reportedly
"untraceable" at the time of trial. PW-8, Harish Gupta who was living in
the vicinity and could have been a witness was declared hostile by the
prosecution.
(iv) Second, the recovery of the alleged weapon, the knife was not
through the appellant Panchi but at the instance of Sumit @Akki who
stated that after causing stab injury by Panchi, the knife was given to
him i.e. Sumit @Akki, which he then threw in the bushes in the jungle
behind Ramleela Ground, Sangam Vihar. This disclosure statement has
to be dissected into two parts: (1) the mental fact stated by Sumit @Akki
that the knife was given to him by Panchi; and (2) the actual recovery of
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the knife from the place of recovery. While the former would not be
admissible as a fact under Section 27 of the Indian Evidence Act, the
latter would be. The latter relates to the fact of the knife being
discovered while the former does not relate distinctly to the fact of the
knife being recovered.
(v) This fine distinction has been extensively articulated and assessed
in various judgments of the Hon‟ble Supreme Court, the most notable of
them being State (NCT of Delhi) v. Navjot Sandhu @Afsan Guru
(2005) 11 SCC 600. The following passages from the said judgment
would be instructive in this regard:
"121. The first requisite condition for utilising Section 27 in
support of the prosecution case is that the investigating
police officer should depose that he discovered a fact in
consequence of the information received from an accused
person in police custody. Thus, there must be a discovery of
fact not within the knowledge of police officer as a
consequence of information received. Of course, it is
axiomatic that the information or disclosure should be free
from any element of compulsion. The next component of
Section 27 relates to the nature and extent of information
that can be proved. It is only so much of the information as
relates distinctly to the fact thereby discovered that can be
proved and nothing more. It is explicitly clarified in the
section that there is no taboo against receiving such
information in evidence merely because it amounts to a
confession. At the same time, the last clause makes it clear
that it is not the confessional part that is admissible but it is
only such information or part of it, which relates distinctly
to the fact discovered by means of the information
furnished. Thus, the information conveyed in the statement
to the police ought to be dissected if necessary so as to
admit only the information of the nature mentioned in the
section. The rationale behind this provision is that, if a fact
is actually discovered in consequence of the information
supplied, it affords some guarantee that the information is
true and can therefore be safely allowed to be admitted in
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evidence as an incriminating factor against the accused. As
pointed out by the Privy Council in Kottaya case [AIR 1947
PC 67 : 48 Cri LJ 533 : 74 IA 65] : (AIR p. 70, para 10) -
"clearly the extent of the information admissible
must depend on the exact nature of the fact
discovered" and the information must distinctly
relate to that fact.
.........
Then, Their Lordships proceeded to give a lucid exposition
of the expression "fact discovered" in the following
passage, which is quoted time and again by this Court:
(AIR p. 70, para 10)
"In Their Lordships' view it is fallacious to treat the
„fact discovered‟ within the section as equivalent to
the object produced; the fact discovered embraces
the place from which the object is produced and the
knowledge of the accused as to this, and the
information given must relate distinctly to this fact.
Information as to past user, or the past history, of the
object produced is not related to its discovery in the
setting in which it is discovered. Information supplied
by a person in custody that „I will produce a knife
concealed in the roof of my house‟ does not lead to
the discovery of a knife; knives were discovered many
years ago. It leads to the discovery of the fact that a
knife is concealed in the house of the informant to his
knowledge, and if the knife is proved to have been
used in the commission of the offence, the fact
discovered is very relevant. But if to the statement the
words be added „with which I stabbed A‟ these words
are inadmissible since they do not relate to the
discovery of the knife in the house of the informant."
122. The approach of the Privy Council in the light of the
above exposition of law can best be understood by referring
to the statement made by one of the accused to the police
officer. It reads thus : (AIR p. 71, para 13)
"... About 14 days ago, I, Kottaya and people of my
party lay in wait for Sivayya and others at about
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sunset time at the corner of Pulipad tank. We, all
beat Beddupati China Sivayya and Subayya, to death.
The remaining persons, Pullayya, Kottaya and
Narayana ran away. Dondapati Ramayya who was in
our party received blows on his hands. He had a
spear in his hands. He gave it to me then. I hid it and
my stick in the rick of Venkatanarasu in the village. I
will show if you come. We did all this at the
instigation of Pulukuri Kottaya."
The Privy Council held that : (AIR p. 71, para 14)
"14. The whole of that statement except the passage
„I hid it (a spear) and my stick in the rick of
Venkatanarasu in the village. I will show if you
come‟ is inadmissible."
There is another important observation at para 11 which
needs to be noticed. The Privy Council explained the
probative force of the information made admissible under
Section 27 in the following words : (AIR p. 71)
"Except in cases in which the possession, or
concealment, of an object constitutes the gist of the
offence charged, it can seldom happen that
information relating to the discovery of a fact forms
the foundation of the prosecution case. It is only one
link in the chain of proof, and the other links must be
forged in manner allowed by law."
125. We are of the view that Kottaya case [AIR 1947 PC 67
: 48 Cri LJ 533 : 74 IA 65] is an authority for the
proposition that "discovery of fact" cannot be equated to
the object produced or found. It is more than that. The
discovery of fact arises by reason of the fact that the
information given by the accused exhibited the knowledge
or the mental awareness of the informant as to its existence
at a particular place."
(emphasis added)
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(vi) Therefore, only that part of the disclosure by Sumit @Akki that
there was a knife to be recovered from a particular place would be
admissible, but not the information that it was given to him by appellant
Panchi after the incident to hide. It would, therefore, lead us to the
conclusion that there is no incriminating weapon which has been
recovered or can be connected to the appellant in this matter.
(vii) Third, PW-3‟s testimony as regards the identification of the knife
also needs to be carefully noted. He did state in his statement recorded
under Section 164 Cr.P.C. that the knife in the hands of Panchi was a
meat cutting butcher‟s knife. In his deposition before the Court when
shown the knife which was unsealed and presented to him marked as
Mark MO-1, he categorically stated that the knife being shown to him
was not the same knife by which injury was caused to injured
Shahnawaz. He further specifically added "the knife which was used by
the accused was having more long and wide blade than the present one
and the end point of that knife was rounded not pointed like the present
one. The handle of the knife used in the commission of the offence was
shorter in length than the knife mark MO-1. The knife which was used
by the accused in the commission of the offence was like the butcher‟s
knife which is usually used for cutting meat/chicken". Earlier in his
statement, he had also mentioned that the knife was about 10-11 inch
long.
(viii) The issue regarding identification of the knife recovered through
the disclosure of Sumit @Akki is further confounded by the testimony of
PW-1, the doctor who conducted the post mortem and gave a subsequent
opinion on the knife recovered. A perusal of the subsequent opinion on
the knife recovered (Ex. PW-1/C) would show that PW-1 was presented
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with a knife sealed under seal "SGV-1-SED" and had drawn the sketch
of the knife, later exhibited as Ex. PW-1/B. This sketch shows that
while the handle of the knife was 17 cms, the blade was about 15.2 cms,
it was about 2.4 cms wide and had a pointed top. When shown, pursuant
to unsealing, the sealed knife Mark MO-1 PW-1 stated that "I am not
confirmed whether the knife MO-1 is the same knife which was
submitted to me by Inspector Shahid Khan for my opinion and on the
basis of which I have given my opinion". Further, he stated that the
knife handed over to him by the IO had a different seal whereas, the
knife produced in the Court before him had a seal of the Juvenile Justice
Board and therefore he was not sure about the identity of the knife but
then he said that the knife MO-1 was matching with the sketch Ex. PW-
1/B.
(ix) A holistic review of these two testimonies (PW-3 and PW-1)
regarding the knife creates a substantial doubt that the knife recovered
was indeed the weapon of offence. However, the knife was recovered at
the instance of Sumit @Akki and not appellant Panchi and therefore
nothing was available to connect the appellant with the weapon
recovered.
(x) This leaves the prosecution to merely rely upon the sole testimony
of the eyewitness PW3, which therefore ought to be of sterling quality,
consistent and cogent.
(xi) This Court finds that aside from minor discrepancies, the
testimony of PW3 was credible and unassailable. A careful dissection of
his testimony who was presented as a prosecution witness, would show
that while there are some inconsistencies in his statements regarding the
appellant, however, there are not material enough to discredit his
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testimony as an eye witness to the incident that night. In this regard the
following is noted:
(a) In the rukka (Ex. PW-3/A) which was recorded on
30th October, 2013 itself, just after the incident, his
statement is recorded that pursuant to the scuffle of the boys
with Shahnawaz, the boys who were causing ruckus called
out to one "Panchi". Thereupon, three boys came running
from there led by Panchi in the front who had a knife in his
hand. He further stated that he knew Panchi from earlier
(Panchi ko main pehle se hi janta hun).
(b) In his statement recorded under Section 164 Cr.P.C.,
PW-3 states that after the three or four boys were called by
the boys involved in the scuffle, then Panchi came with a
"meat kaatne wala chaaku". Further, he also named
another boy as "Akki" who had earlier exhorted Shahnawaz
to gamble and later was one of two or three boys who had
caught Shahnawaz.
(c) In his deposition before the Trial Court, PW-3 stated
that pursuant to the scuffle with an unknown boy, the other
boys were called and one of them was called by his name
"Panchi". As regards appellant Panchi, he identified him in
Court and stated he had stabbed the deceased. He did state
in his cross-examination that he had not met Panchi prior to
the incident, nor had ever gambled with him, nor had heard
even the voice of Panchi earlier.
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(d) It is also noteworthy that it was on PW3‟s instance
that the appellant was arrested. The information regarding
the presence of Panchi in the Ramleela Maidan led to his
arrest was given by PW-3 himself. When he said he did not
know Panchi (in his deposition before the court) and if he
indeed did (as per the statement in the rukka), it can at best
be assumed that he became hostile to that extent at that
stage. However, he did identify Panchi as the assailant, in
the court. The circumstances regarding the arrest are fully
corroborated by the testimony of the police team viz. PW28
SI Vikram, PW17 HC Satya Prakash, PW20 HC Hari Ram,
PW21 Ct. Gaurav, PW23 Ct. Rakesh, PW29 Inspector
Shahid Khan IO.
(xii) Since the current appeal is focussed on the appellant Panchi,
Sumit @Akki not being an appellant before this Court, PW3‟s testimony
regarding appellant Panchi is consistent and cogent and he has not only
named the appellant as the assailant in the rukka, but also got him
arrested at his instance, and then identified him in court as the assailant.
(xiii) There is nothing in the statement recorded under Section 313
Cr.P.C. to put forward a plea of alibi regarding their presence on the
place which would serve to dent the case of the prosecution.
(xiv) As regards the contention of the appellant that the absence of the
evidence by the other eyewitness Ashwani, the case of the prosecution
could not be sustained, does not appeal to this Court in light of the clear
testimony of other eyewitness PW-3. Defective or incomplete
investigation cannot serve to acquit the appellant in view of the rest of
the evidence, scrutinized independently serves to confirm the conviction.
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The Hon‟ble Supreme Court in the decision reported as State of M.P. v.
Chhaakki Lal (2019) 12 SCC 326 in Paras 34 and 35 held as under:
"34. For reversing the verdict of conviction, the High Court
has pointed out that there was delay in sending the seized
gun and pistol (recovered on 1-3-2006) which was sent to
the FSL only on 19-4-2006. The High Court has doubted
the case of the prosecution by observing that apart from
delay in sending the seized guns/pistol, there is no material
showing as to where the seized weapons were kept during
the period from 1-3-2006 to 19-4-2006. Such delay in
sending the recovered weapons to FSL could only be an
omission or lapse on the part of the investigating officer.
Such omissions or lapses in the investigation cannot be a
ground to discard the prosecution case which is otherwise
credible and cogent. In Nankaunoo v. State of U.P.
[Nankaunoo v. State of U.P., (2016) 3 SCC 317 : (2016) 1
SCC (Cri) 857] , it was held as under : (SCC p. 322, para
9)
"9. ... any omission on the part of the investigating
officer cannot go against the prosecution case. Story
of the prosecution is to be examined dehors such
omission by the investigating agency. Otherwise, it
would shake the confidence of the people not merely
in the law enforcing agency but also in the
administration of justice."
"35. In V.K. Mishra v. State of Uttarakhand [V.K. Mishra v.
State of Uttarakhand, (2015) 9 SCC 588 : (2015) 4 SCC (Cri)
1] , it was held as under : (SCC p. 607, para 38)
"38. The investigating officer is not obliged to anticipate all
possible defences and investigate in that angle. In any
event, any omission on the part of the investigating officer
cannot go against the prosecution. Interest of justice
demands that such acts or omission of the investigating
officer should not be taken in favour of the accused or
otherwise it would amount to placing a premium upon such
omissions."
(emphasis added)
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(xv) PW-3, the eye witness initially fumbled in identifying the co-
accused Sumit @Akki but did state that the boy at that night was having
scars engrave on the right side of his neck and later identified him in
subsequent examination in chief. As regards other discrepancies in the
testimony of PW-3, as the eye witness, they seem to be natural and in
fact testifying that the witness is not a tutored witness. The Hon‟ble
Supreme Court has held that minor discrepancies in testimonies in fact
prove the fact that it is not a tutored witness and have natural abrasion
because of fading memory at the time of the trial which is usually
conducted a few years later; The Hon‟ble Supreme Court in the decision
reported as Faquira v. State of U.P. (1976) 1 SCC 662 in Para 4 held, as
under:
"4. We have been taken through the relevant evidence
against which some criticism, which is not sufficient to
enable us to discard this evidence, was levelled. This Court
does not interfere with findings or questions of fact on the
strength of minor discrepancies which only indicate that the
witnesses were not tutored. The fact that the apparent
motive was too flimsy is no reply to the unshaken testimony
of creditable and natural eyewitnesses who had no motive
whatsoever to implicate the appellant falsely..."
(xvi) The Division Bench of this Hon‟ble Court in Anurag v. State
2009 SCC OnLine Del 534 has stated in Para 37, as under:
"37. ...The witnesses are bound to err while narrating
happening of a chaotic situation. As observed by the
Supreme Court in the decision reported as Bharwada
Bhoginbai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 :
AIR 1983 SC 753: -
"Over much importance cannot be attached to minor
discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to
possess a photographic memory and to recall the
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details of an incident. It is not as if a video tape is
replayed on the mental screen:
(2) Ordinarily it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence which so often has an
element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the
details.
(3) The powers of observation differ from person to
person. What one may notice, another may not. An
object or movement might emboss its image on one
person's mind whereas it might go unnoticed on the
part of another.
(4) By and large people cannot accurately recall a
conversation and reproduce the very words used by
them or heard by them. They can only recall the main
purport of the conversation. It is unrealistic to expect
a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make their
estimates by guess work on the spur of the moment at
the time of interrogation. And one cannot expect
people to make very precise or reliable estimates in
such matters. Again, it depends on the time-sense of
individuals which varies from person to person,
(6) Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place in
rapid succession or in a short time span. A witness is
liable to get confused, or mixed up when interrogated
later on.
(7) A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing
cross examination made by counsel and out of
nervousness mix up facts, get confused regarding
sequence of events, or fill up details from
imagination on the spur of the moment. The sub-
conscious mind of the witness sometimes so operates
on account of the fear of looking foolish or being
disbelieved though the witness is giving a truthful
and honest account of the occurrence witnessed by
him-Perhaps it is a sort of a psychological defence
mechanism activated on the spur of the moment.
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Discrepancies which do not go to the root of the
matter and shake the basic version of the witnesses
therefore cannot be annexed with undue importance.
More so when the all important "probabilities-
factor" echoes in favour of the version narrated by
the witnesses."
(Emphasis added)
(xvii) Contention of the appellants that this fight was on the spur of the
movement and there was no intention to cause death cannot be accepted
by this Court looking at the nature of the wounds inflicted by multiple
stab injuries on vital parts of the body and the fact that there was no
grappling or struggle between the deceased and the appellant. The
testimony of PW-3 was clear that the gang of boys rushed towards the
deceased who was reluctant to participate in the gambling and the
appellant inflicted knife injuries on him. The appellant being in
possession and wielding the knife and causing such grave injuries which
were ultimately fatal is clearly guilty, as proved beyond reasonable
doubt for the offence punishable under Section 302 IPC. This is not a
case of causing simple hurt or blunt blow or an injury unintended to
cause death. The nature of the injuries itself is evident of the intent to
cause death or even intent can be to cause bodily injuries, which is
sufficient in the ordinary course of nature to cause death or even
knowing that in all probability it will cause death and commits the act
without any excuse, while incurring the risk of causing death.
Therefore, in fact, the act of the accused would be within the definitional
rubric of Section 300 IPC, sufficient to sustain his conviction under
Section 302 IPC.
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Conclusion:
7. In light of the above discussion and analysis, this Court finds that
the guilt of the appellant for the murder of the deceased has been proved
beyond reasonable doubt and duly supported by evidence on record.
Consequently, this Court finds no error in the impugned judgment of
conviction and order on sentence by the learned Trial Court.
8. Appeal is accordingly dismissed.
9. Copy of this judgment be uploaded on website and be also sent to
Superintendent, Tihar Jail for intimation to the appellant and updation of
records.
(ANISH DAYAL)
JUDGE
(MUKTA GUPTA)
JUDGE
OCTOBER 07, 2022/mk
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