Delhi High Court
Sunil @ Sonu vs The State Of Delhi on 26 June, 2023
2023:DHC:4275-DB
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 22nd March, 2023
Decided on: 26th June, 2023
+ CRL.A. 408/2018
SUNIL alias SONU ..... Appellant
Represented by: Mr.Anwesh Madhukar, Advocate
(DHCLSC) with Mr.Yaseen Siddiqui,
Ms.PrachiNirwan and Mr.Pranjal Shekhar,
Advocates.
versus
THE STATE OF DELHI ..... Respondent
Represented by: Ms.Shubhi Gupta, APP for the State with
Inspector Dharmender Kumar, P.S.Jahangir
Puri.
+ CRL.A. 137/2018
NITIN alias DEVENDER ..... Appellant
Represented by: Mr.Anwesh Madhukar, Advocate
(DHCLSC) with Mr.Yaseen Siddiqui,
Ms.PrachiNirwan and Mr.Pranjal Shekhar,
Advocates.
versus
THE STATE GOVT. OF NCT OF DELHI ..... Respondent
Represented by: Ms.Shubhi Gupta, APP for the State with
Inspector Dharmender Kumar, P.S.Jahangir
Puri.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
HON'BLE MS. JUSTICE POONAM A. BAMBA
MUKTA GUPTA, J.
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By:JUSTICE MUKTA By:POONAM BAMBA
GUPTA
2023:DHC:4275-DB
1. By way of these appeals, the appellants challenge the common
judgment of learned Trial Court dated 25 th October, 2017 whereby the
appellants were held guilty for the murder of one Sachin ("deceased"). The
appellants also challenge the order on sentence dated 6th November, 2017
whereby the appellants were directed to undergo rigorous imprisonment for life
along with fine of ₹ 10,000/- each, in default whereof simple imprisonment for
1 year for offence punishable under Section 302/34 of the Indian Penal Code,
1860 ("IPC").
2. Vide the aforesaid impugned judgment and order on sentence, two
other accused persons namely, Satish and Gaurav were also held guilty for
offence punishable under Section 323/34 IPC for causing simple injury on
Rahul and were directed to undergo simple imprisonment of 4 months along
with fine of ₹1000/- each in default whereof simple imprisonment for 1 month.
These two accused persons had already undergone their period of sentence.
3. Brief facts of the prosecution case are that on 28th November, 2016,
Rahul (PW-1) along with his friend/deceased was going to the house of his
mausi Shivani (PW-2) who was residing in a street No.700. Accused Chotu
@Satish was having a small mechanic shop in the corner of street No.600 and
Sunil @ Sonu, Gaurav @ Bakra and Nitin @ Mota were standing in front of
the said mechanic shop under the influence of liquor. At about 8.45-9 PM,
while Rahul was talking to his mausi, Gaurav called deceased and as the
deceased went up to Gaurav, Gaurav started arguing and abusing the deceased.
Thereafter, Gaurav and Nitin caught the deceased from his neck and when
Rahul tried to save the deceased, Chotu and Gaurav gave danda blows on
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GUPTA
2023:DHC:4275-DB
Rahul's head. Nitin and Sachin started beating the deceased with kicks and
fists blows and thereafter, Nitin pulled out a knife and on seeing the knife, the
deceased started running to save his life. Thereafter, Sonu and Nitin chased the
deceased and caught hold of him at the pulia of gandanala of EE Block and
inflicted knife blows on the deceased. In an attempt to save Rahul, Shivani
intervened and covered Rahul, but she was pulled and dashed to the ground.
Thereafter, both Chotu and Gaurav went up to the place where the deceased
was beaten and they also started beating the deceased. A police official namely
ASI Subhash Chandra (PW-15) was passing by the street, whom Shivani
forcibly stopped, sought his help and took him to the place where the deceased
was being beaten up. On seeing ASI Subhash (PW-15), all the four accused
persons ran away and Shivani made repeated calls at No.100. One PCR van
removed Rahul to the hospital and another PCR van removed the deceased to
the hospital. Information given to the police was recorded by DD No.63A
(Ex.PW-19/A) which was marked to SI Suresh (PW-19) who reached the spot
and thereafter, went to BJRM Hospital. At the hospital, Rahul could not be
found and the deceased was found unfit for statement. Search was made for
eye-witness Rahul, however, he could not be found and on 29 th November,
2016, at about 11.45 PM, Rahul himself came to the police station where his
statement (Ex.PW-1/A) was recorded on which rukka (Ex.PW-19/D) was
prepared and FIR No.667/2016 dated 30th November, 2016 under Section
307/34 IPC was registered at PS Jahangir Puri (Ex.PW-20/A). Thereafter,
efforts were made to search the accused persons, and behind PRAYAS Home,
EE Block, Jahangir Puri all the four boys/accused persons were found sitting
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GUPTA
2023:DHC:4275-DB
and pursuant to identification by Rahul and their interrogation, all the four
boys/accused persons, Sunil @ Sonu, Satish, Gaurav and Nitin were arrested
vide arrest memos Ex.PW-1/A-1, Ex.PW-1/B-1, Ex.PW-1/C-1 and Ex.PW-
1/D-1 respectively. Disclosure statements of the accused persons (Ex.PW-19/F-
1, Ex.PW-19/F-2, Ex.PW-19/F-3 and Ex.PW-19/F-4 respectively) were also
recorded. On 2nd December, 2016 at about 7.35 AM, an information vide DD
No.12A (EX.PW-19/H) was received regarding death of the deceased at LNJP
Hospital. Further, investigation was marked to Insp. Ajay Kumar. Thereafter,
the dead body was sent for post mortem examination.
4. Dr. Arun Kumar conducted the post mortem examination on the dead
body of the deceased on 2nd December, 2016 and tendered his report (Ex.PW-
8/A). He opined:
"VII. EXTERNAL EXAMINATION:
A. Evidence of Surgical intervention:
1. Incised fasciotomy wound measuring 22 cm in length with wide
gapping of margins, exposing underlying muscles was present on
anterio-medial aspect of left thigh; lower end was present 5 cm above
knee joint. Unhealthy granulation tissue was present at the margins of
the wound and exposed surfaces of the muscles. On exploration blood
clots of about 400 grams was present in the layers of muscles.
2. Incised fasciotomy wound measuring 30 cm in length with wide
gapping of margins, exposing underlying muscles was present on
posterior-lateral aspect of left thigh; lower end was present just above
knee joint. Unhealthy granulation tissue was present at the margins of
the wound and exposed surfaces of the muscles. On exploration
evidence of surgical repair was present in the blood vessels of popliteal
fossa, blood clots of about 300 grams was present in the layers of
muscles.
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GUPTA
2023:DHC:4275-DB
3. Incised fasciotomy wound measuring 17.5 cm in length with wide
gapping of margins, exposing underlying muscles was present on
anterio-medial aspect of left leg; upper end was present 8 cm below
knee joint. Unhealthy granulation tissue was present at the margins of
the wound and exposed surfaces of the muscles. On exploration blood
clots of about 200 grams was present in the layers of muscles.
4. Incised fasciotomy wound measuring 11 cm in length with wide
gapping of margins, exposing underlying muscles was present on
posterior-lateral aspect of left leg; upper end was present 3 cm below
knee joint. Unhealthy granulation tissue was present at the margins of
the wound and exposed surfaces of the muscles. On exploration blood
clots of about 200 grams was present in the layers of muscles.
B. External Antemortem Injuries
1. Brownish scabbed abrasion measuring 2 cm X 1.5 cm was present on
right parieto-occipital region, 2 cm from midline and 4 cm above
occipital protuberance.
2. Brownish scabbed abrasion measuring 3 cm X 2 cm was present on
right parietal region. 3 cm from midline and 7.5 cm above occipital
protuberance.
3. Brownish scabbed abrasion measuring 3 cm X 0.6 cm was present
obliquely placed on right parietal region with lower outer end 3 cm
from midline and 6 cm above occipital protuberance.
4. Stitched lacerated wound measuring 2.5 cm in length with 1 black
colour stitches in situ was present vertically placed on right frontal
region. 1 cm from midline and 5 cm above eye brow.
5. Stitched incised wound measuring 4 cm in length with 4 black stitches
in situ was present horizontally placed on right side forehead, 4 cm
from midline and 1.5 cm above eye brow. Tailing was present in the
medial end.
6. Stitched incised wound measuring 4 cm in length with 4 black stitches
in situ was present vertically placed on right side face, 12 cm from
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GUPTA
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midline and 5 cm above angle of mandible. Tailing was present in the
lower end.
7. Lacerated wound measuring 0.8 cm X 0.5 cm X subcutaneous deep was
present vertically placed on left side of face, 7 cm from midline and 8
cm above angle of mandible surrounded by brownish scabbed abrasion
measuring 1 cm X 1 cm.
8. Stitched incised wound measuring 6 cm in length with 8 black stitches
in situ was present vertically placed on left side ala of nose extending
upto left side upper lip, 1 cm from midline. Tailing was present in the
lower end.
9. Brownish scabbed scratch abrasion measuring 0.6 cm X 0.1 cm,
crescentic in shape with concavity facing medially was present on
dorsum of left hand, 4 cm below wrist joint.
10. Brownish scabbed scratch abrasion measuring 3 cm X 0.5 cm was
present obliquely placed on left shoulder back, 16 cm from midline and
2 cm below shoulder top.
11. Stab wound measuring 1.5 cm X 0.2 cm X 2.8 cm with clean cut
margins, wedge shaped with medial end more acute than outer end,
was present horizontally placed on left buttock, 10 cm from midline and
78 cm above left heel. Track of the wound was directed forwards,
medially and upwards. Track of the wound goes cutting skin and
subcutaneous fat. Extravasation of blood was present throughout the
tract.
12. Stab wound measuring 1 cm X 0.1 cm X 2 cm with clean cut margins,
was present horizontally placed on left buttock, 11 cm from midline and
75 cm above left heel. Track of the wound was directed forwards,
medially and downwards. Track of the wound goes cutting skin and
subcutaneous fat. Extravasation of blood was present throughout the
tract.
13. Stab wound measuring 3.8 cm X 0.2 cm X 10.5 cm with clean cut
margins, was present horizontally placed on left buttock, 6 cm from
midline and 71 cm above left heel. Track of the wound was directed
forwards, laterally and downwards. Track of the wound goes cutting
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GUPTA
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skin, subcutaneous fat and muscles. Extravasation of blood was present
throughout the tract.
14. Brownish scabbed abrasion measuring 1.5 cm X 1.5 cm was present on
left knee joint.
Heart: Weight was 265 grams. Pericardial cavity: Unremarkable.
Myocardium: No changes evident on gross examination. Endocardium
in chambers & valves were grossly normal. Coronaries were grossly
patent.
Thoracic Vessels and Diaphragm: Unremarkable.
xxxx
OPINION:
Time Since Death: About half day. (As per hospital records, body
having been preserved in cold storage)
Cause of Death: Septicemic shock consequent upon compartment
syndrome and infection of left lower limb as a result of antemortem
injury to left thigh produced by pointed sharp edge object via injury
no.13. All injuries are antemortem in nature and 3-4 days in duration.
Injuries No: 01, 02, 03, 04, 07, & 14 are produced by blunt force
impact; injury No. 05, 06, 08, 11, 12 & 13 are produced by pointed
sharp edge object and injury No. 09 & 10 are produced by nails. Injury
No. 13 is individually sufficient to cause death in ordinary course of
nature."
5. Dr. Avinash Tripathi examined Rahul on 30th November, 2016 who
was brought by Ct. Lokendra Kumar. He examined Rahul and prepared his
report (Ex.PW-9/A) and on examination, the patient was found conscious
oriented to time, place and person and on local examination, abrasions were
found on right forehead 2x1 cm, left eyebrow 0.5x0.5 cm, left cheek 2x0.5 cm,
right cheek 1x0.5 cm and left knee 1x5 cm and it was opined that Rahul had
sustained simple injury.
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GUPTA
2023:DHC:4275-DB
6. On completion of investigation, charge-sheet was filed by IO/Insp. Ajay
Kumar (PW-23) and the accused Satish and Gaurav were charged for offence
punishable under Section 308/34 IPC and the appellants Sunil @ Sonu and
Nitin @ Devender were charged for offence punishable under Section 302/34
IPC. To prove its case, the prosecution examined 23 witnesses and on the other
hand, to rebut the case of the prosecution, defence evidence in the form of 3
defence witnesses was also led.
7. Learned counsel appearing on behalf of the appellants assails the
impugned judgment on the ground that the impugned judgment of learned Trial
Court is not based on proper appreciation on facts and circumstances of the
case thereby subjecting appellants to miscarriage of justice, and accordingly,
the impugned judgment and order on sentence be set aside and the appellants
be acquitted. It was contended that in the present case, the first PCR call
regarding the incident was made by the father of the appellant, namely,
Vishwanath and as per the PCR Form (Ex.PW-16/A), it was recorded "injured
ko lekar hospital jaa rahe hain jisko padosi Rahul ne blade maar kar injured
kardia". It was submitted that the present case arises out of an FIR which was
lodged against the appellants as a cross FIR since FIR No.664/2016 (Ex.DW-
1/A) was already registered on the information given by the appellants. It was
further submitted that the present FIR was registered after two days of
registration of FIR No.664/2016.Further, it was pointed out that as per the post
mortem report (Ex.PW-8/A) it was opined that injury No.13 was individually
sufficient to cause death and injury No.13 was described at "stabbed wound
measuring 3.8 cm x 0.2 cm x 10.05 cm was present horizontally placed on left
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GUPTA
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buttock". However, as per the MLC of the deceased (EX.PW-4/A), the only
injury present on the lower part of the body of deceased was one wound on the
right thigh of the deceased and it was submitted that the most important injury,
i.e., injury No.13 finds no mention in the first medical examination of the
deceased and thus, the said injury No. 13 cannot be said to have been inflicted
on the appellant herein. It was submitted that the deceased was under the
influence of alcohol and thereafter, the possibility of self-inflicted injury or
injury being caused by fall cannot be ruled out. Furthermore, there is no
witness who stated to have taken the deceased to the hospital. As per the MLC,
the deceased was brought to the hospital by PW-19, however, as per the
testimony of PW-19, deceased was already removed from the hospital when he
reached. Even PW-15 who was the first police official to have reached the
place of occurrence nowhere mention about the deceased. It was further
pointed out by learned counsel that as per the case of the prosecution, the date
of incident is 28th November, 2016 and logically, the MLC of Rahul (PW-1)
should have been dated 28th November, 2016, however, the MLC of Rahul and
FIR are both dated 30th November, 2016.It was further contended that it was in
fact the deceased and the injured Rahul who were the actual aggressors and the
case under Section 302 IPC is not made out. It was pointed out that from the
evidence of PW-1 and DW-2 that Satish was the owner of the mechanic shop
and thus, he was at his work place and it was PW-1 and the deceased who came
to Satish's shop in a drunken condition and started quarreling with the accused
persons. No explanation has been provided as to why the deceased and PW-1
were present at the shop of the Satish. Even the site plan (Ex.PW-10/A) does
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GUPTA
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not show the location of the house of Shivani (PW-2).Learned counsel further
contended that no weapon of offence was recovered at the instance of the
appellant and it was only dandas which were recovered and no DNA analysis
was carried out of the blood stains found on the dandas, so as to connect the
appellants with the crime alleged. Learned counsel further contended that even
otherwise, there are material contradictions in the testimony of various
witnesses.
8. Per contra, learned APP appearing on behalf of the State submitted that
the impugned judgment of Learned Trial Court is based on proper appreciation
and facts of the case and therefore, prayed that the impugned judgment be
upheld and consequently, the present appeal be dismissed. To buttress her
contention, learned APP relied upon the following facts:
i. That Rahul PW-1 and Shivani PW-2 were the eye-witnesses to the
incident in question and Rahul himself had also sustained injuries during
the incident. Both these witnesses have categorically deposed about the
incident and named the two appellants as the persons who inflicted
injuries on Rahul and the deceased, and that it was these two appellants
who had inflicted knife blows on the deceased. Reliance was placed on
the decision in 2010 AIR SCW 5701 Abdul Sayeed vs. Sated of MP to
contend that the testimony of an injured eye-witness stand on a high
pedestal as there is an inbuilt assurance regarding his presence at the spot
and it is unlikely that he would allow the real culprit to go scot-free.
ii. That testimony of ASI Subhash (PW-15) also lends credence to the
version of PW-1 and PW-2 who deposed that while he was on his way to
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G-Block Jhuggi, Shivani stopped him and informed him about the
incident and when PW-15 went towards the spot, he saw four boys
running away and PW-1 lying in an injured condition at the spot.
iii. As per the post mortem report (Ex.PW-8/A), cause of death was
opined to be septicemic shock consequent upon compartment syndrome
and infection of left lower limb as a result of ante mortem injury to left
thigh produced by pointed sharp edge via injury No.13. Further, injury
no.13 opined to be individually sufficient to cause death. Although, the
weapon of offence was not recovered in the present case, however, the
testimonies of the eye-witnesses clearly establish that injury No.13 was
caused by knife. Furthermore, as per the subsequent opinion (Ex.PW-
8/B), it was opined that injuries No.1,2,3,4,7 and 14 on the body of the
deceased were possibly caused by the dandas recovered at the instance
of the appellant.
iv. That the four boys/accused persons were arrested on 29th November,
2016 behind PRAYAS Home upon identification of Rahul (PW-1) and
the same was proved by PW-19, PW-21 and PW-22.
9. Having heard both the parties at length and perusal the record, the
following evidence emerges.
10. Rahul (PW-1) deposed that on 28th November, 2016, he along with his
friend/deceased was going to the house of his mausi from the street where
building of PRAYAS was situated. He stated that Chotu @ Satish was having
his mechanic shop in the corner of street No.600 and that Sunil @ Sonu,
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GUPTA
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Gaurav @ Bakra and Nitin @ Mota were standing in front of his shop with
Satish @ Chotu under the influence of liquor. At about 8.45-9 PM, he was
talking with his mausi Shivani and at that time, accused Gaurav @ Bakra
called the deceased and started arguing with the deceased. Shivani called back
the deceased and advised us to go back to our house, however, Gaurav abused
the deceased to which the deceased objected and Gaurav again started arguing
with the deceased. Thereafter, Gaurav and Nitin caught hold of the deceased at
the neck and at the same time, Shivani told him to save the deceased from
accused persons. When he tried to save the deceased, Chotu and Gaurav gave
danda blows on his head and Nitin and Sonu started beating the deceased with
kicks and fits blows. At the same time, Nitin pulled out a knife and on seeing
the knife, the deceased started running, however, Sonu and Nitin overpowered
the deceased at the pulia of gandanala at Block-EE and gave knife blows to the
deceased. He further stated that Gaurav and Chotu were beating him and
Shivani intervened to save him and Gaurav and Chotu pulled Shivani to the
other side and she was dashed to the ground. Thereafter, both Gaurav and
Chotu also went up to the place where Sachin was being beaten up and Satish
also pulled a knife and started giving blows to the deceased. At that time, one
police official was passing from the street and Shivani stopped the police
official and took him to the place where Sachin was beaten up and on seeing
the police official, all the four accused persons ran away. He stated that Shivani
repeatedly made calls at No.100 and after sometime, the PCR van reached
there and he was taken to the hospital. Sachin was lying on the slope of the
pulia and therefore, he was not removed to the hospital to the said PCR. Doctor
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advised him to wash his face as he was bleeding from his face. He further
stated that he could not see the deceased at the hospital and therefore, in search
of the deceased, he left the hospital and as he came out of the BJRM Hospital,
he fell down and became unconscious. He further stated that he was taken to
the house of his elder mausi where he was made to sleep and he regained
consciousness in the next morning. He again went back to BJRM Hospital
where he got to know that the deceased was shifted to LNJP Hospital but he
was not allowed to meet him and thereafter, he went to PS Jahangir Puri where
his statement (Ex.PW-1/A) was recorded. Thereafter, he along with the police
officials went in search of the accused persons and reached PRAYAS Home,
EE Block where all the four accused persons were apprehended and
subsequently arrested. In his cross examination, he stated that there was a
pervious enmity as the deceased slapped Aamir who was a friend of Sonu and
this incident took place before Ganesh Chaturthi. He further stated that he did
not tell the police in his statement (Ex.PW-1/A) that he and Sachin had
consumed alcohol.
11. Shivani (PW-2) deposed that on 28th November, 2016 at about 9-9.15
PM, she was standing at Gali No.700, Jahangir Puri when Rahul and his
friend/deceased were passing from the street and she stopped both of them and
asked as to where were they going. At the same time, Sonu, Chotu, Nitin and
Gaurav pulled the deceased from his back. These persons started beating Rahul
with dandas. Thereafter, Sonu and Nitin followed the deceased who ran away
in order to save himself and she stated that she covered Rahul to save him. She
was pulled by Chotu and Gaurav who were beating Rahul. Sonu and Nitin were
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carrying knives in their hands and inflicted knife blows on the face, back and
lower body of the deceased. Thereafter, Gaurav and Chotu also went to the
place where Sachin was beaten up and Chotu snatched knife from the hands of
Sonu and gave blow on the back of the deceased. Nitin was carrying a small
iron type object by which he was beating Sachin on his face. At the same time,
a police official was passing through the pulia she forcefully stopped the police
official and asked for the help. On seeing the police official, all the accused
persons ran away and she made call to the police at No.100 from her mobile
No.9953837570 repeatedly. A PCR van reached there and removed her
nephew/Rahul to the hospital and thereafter, another PCR van removed the
deceased to the hospital. In her cross examination, she stated that she did not
accompany Rahul the hospital as she was taking care of the deceased. She
further stated that her mother was also with her when she went to the BJRM
Hospital where Rahul was taken.
12. ASI Subhash Chandra (PW-15) deposed that on 28th November, 2016,
at about 9-9.15 PM, he was going on motorcycle towards G Block Jhuggi for
attending a call of a female regarding harassment by her husband and when he
reached near Singla Store Jahangir Puri, one female, namely, Shivani stood in
front of his motorcycle, forced him to stop and informed him about a quarrel
which was taking place. He went to the spot and the four boys ran away
towards PRAYAS Child Home gali. He enquired from Shivani, if Shivani had
made call at No.100 and she replied in affirmative. He saw PCR van
approaching the spot and after its arrival, he left for G Block Jhuggi.
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13. SI Suresh (PW-19) deposed that on receipt of DD No.63A (Ex.PW-
19/A), he along with Ct. Harjeet reached E-EE Block Jahangir Puri dividing
road near E 700 wali gali where he got to know that injured was already
removed to BJRM Hospital. At the spot, broken pieces of glass bottle and
blood was found on the pulia. At the BJRM Hospital, the deceased was found
admitted and was unfit for statement. Sonu, Satish, Gaurav and Nitin were also
admitted in the hospital. Rahul was not found at the hospital. Crime team was
called at the spot. Blood stained maroon colour pant of the deceased was
handed over by the hospital which was seized vide memo Ex.PW-19/B. On 29th
November, 2016, at about 11.45 PM Rahul came to the police station and his
statement (PW-1/A) was recorded, rukka was prepared and FIR was registered.
He prepared the site planEx.PW-19/E and thereafter, he along with Rahul went
in search of the accused persons who were found sitting behind PRAYAS
Home, EE Block, Jahangir Puri. After identification by Rahul and
interrogation, Sunil @ Sonu, Satish, Gaurav and Nitin were arrested vide arrest
memo Ex.PW-1/A-1, Ex.PW-1/B-1Ex.PW-1/C-1 andEx.PW-1/D-1
respectively. Disclosure statements of the accused persons (Ex.PW-19/F-1,
Ex.PW-19/F-2,Ex.PW-19/F-3 and Ex.PW-19/F-4 respectively) were recorded.
Thereafter, the accused persons led the police party to the nala where the knife
was thrown but the same could not be found. On 2nd December, 2016, at about
7.35 AM, an information vide DD No.12A (Ex.PW-19/H) was received
regarding death of the deceased at the LNJP Hospital. Thereafter, further
investigation was handed over to Insp. Ajay Kumar.
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14. Insp. Ajay Kumar (PW-23) stated that investigation in this case was
marked to him on 2nd December, 2016 whereupon he along with SI Suresh
went to mortuary at LNJP Hospital. The dead body was sent for post mortem
examination and after the examination, dead body was handed over the
relatives of the deceased (Ex.PW-6/B). On 10th December, 2016, Sunil and
Nitin led the police party to a place behind PRAYAS Child Home and pointed
out the place where they had thrown the weapon of offence. Nitin produced a
bamboo stick/danda and Sunil pointed out a nala where he thrown the knife
however, the knife could not be found. The danda recovered at the instance of
Nitin was seized vide memo Ex.PW-14/A. On 13th December, 2016, Satish and
Gaurav led the police party to behind PRAYAS Child Home and both these
accused got recovered two bamboo sticks/dandas, which were seized vide
memo Ex.PW-21/A and Ex.PW-21/B respectively. Thereafter, upon
completion of investigation, he filed the charge-sheet. In his cross examination,
he stated that the place of recovery was an open place, however, the same was
not visible from the main road.
15. In their respective statements under Section 313 of the Criminal Code
of Procedure, 1973 ("Cr.P.C."), appellants Sunil @ Sonu and Nitin @
Devender denied their arrest from behind PRAYAS Home at EE Block and
stated that they were called by the police officials at PS Jahangir Puri for some
enquiry regarding FIR No.664/2016 under Section 307 IPC. They further stated
that nothing was recovered at their instance and that the police had taken their
signatures on blank papers. They stated that they were innocent and were
falsely implicated in the present case and further stated that Rahul has deposed
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against them to take revenge of FIR No.664/2016 under Section 307 IPC.
Appellant Nitin @ Devender further stated that he had gone to the mechanic
shop of Sunil where Sunil and Satish were already present and after sometime
Gaurav also arrived there. Suddenly, 4-5 boys including Rahul came there with
sharp edged weapons and they were all under the influence of liquor. They
started attacking Sunil and Satish and he tried to intervene but they also hit at
his head and he had sustained incised injury in his head. Somebody made a call
at No.100 and they went to the BJRM Hospital in PCR van where they were
medically treated. Upon narration of this incident, FIR No.664/2016 under
Section 307 IPC was registered at PS Jahangir Puri against Rahul, deceased
and others.
16. One of the main plank of challenge to the conviction by the appellants
is to delay in lodging of the FIR based on the statement of Rahul who is stated
to be the eye-witness. It is trite law that mere delay in lodging the FIR is not
fatal to the prosecution case, in case the same is satisfactorily explained by the
maker of the FIR. Hon'ble Supreme Court in the decision reported as (2013) 5
SCC 655 Kanhaiya Lal Vs. State of Rajasthan held:
"15. It is settled in law that mere delay in lodging the first
information report cannot be regarded by itself as fatal to the
case of the prosecution. However, it is obligatory on the part of
the court to take notice of the delay and examine, in the
backdrop of the case, whether any acceptable explanation has
been offered by the prosecution and if such an explanation has
been offered whether the same deserves acceptance being found
to be satisfactory.
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16. In this regard, we may refer with profit to a passage
from State of H.P. v. Gian Chand [(2001) 6 SCC 71 : 2001 SCC
(Cri) 980] , wherein a three-Judge Bench of this Court has
expressed thus: (SCC p. 79, para 12)
"12. Delay in lodging the FIR cannot be used as a
ritualistic formula for doubting the prosecution case and
discarding the same solely on the ground of delay in
lodging the first information report. Delay has the effect
of putting the court on its guard to search if any
explanation has been offered for the delay, and if offered,
whether it is satisfactory or not. If the prosecution fails to
satisfactorily explain the delay and there is a possibility
of embellishment in the prosecution version on account of
such delay, the delay would be fatal to the prosecution.
However, if the delay is explained to the satisfaction of
the court, the delay cannot by itself be a ground for
disbelieving and discarding the entire prosecution case."
17. In Ramdas v. State of Maharashtra [(2007) 2 SCC 170 :
(2007) 1 SCC (Cri) 546] , this Court has observed that: (SCC p.
179, para 24)
"24. ... mere delay in lodging the first information report
is not necessarily fatal to the case of the prosecution.
However, the fact that the report was lodged belatedly is
a relevant fact of which the court must take notice. This
fact has to be considered in the light of other facts and
circumstances of the case, and, in a given case, the court
may be satisfied that the delay in lodging the report has
been sufficiently explained. In the light of the totality of
the evidence, the court of fact has to consider whether the
delay in lodging the report adversely affects the case of
the prosecution. That is a matter of appreciation of
evidence. There may be cases where there is direct
evidence to explain the delay. Even in the absence of
direct explanation, there may be circumstances
appearing on record which provide a reasonable
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explanation for the delay. There are cases where much
time is consumed in taking the injured to the hospital for
medical aid and, therefore, the witnesses find no time to
lodge the report promptly. There may also be cases where
on account of fear and threats, witnesses may avoid going
to the police station immediately. The time of occurrence,
the distance to the police station, mode of conveyance
available, are all factors which have a bearing on the
question of delay in lodging of the report. It is also
possible to conceive of cases where the victim and the
members of his or her family belong to such a strata of
society that they may not even be aware of their right to
report the matter to the police and seek legal action, nor
was any such advice available to them."
XXX XXX XXX
19. Thus, whether the delay creates a dent in the prosecution
story and ushers in suspicion has to be gathered by scrutinising
the explanation offered for the delay in the light of the totality of
the facts and circumstances. Greater degree of care and caution
is required on the part of the court to appreciate the evidence to
satisfy itself relating to the explanation of the factum of delay.
In Kilakkatha Parambath Sasi v. State of Kerala [(2011) 4 SCC
552 : (2011) 2 SCC (Cri) 355 : AIR 2011 SC 1064] it has been
observed (SCC p. 557, para 20) that when an FIR has been
lodged belatedly, an inference can rightly follow that the
prosecution story may not be true but equally on the other side,
if it is found that there is no delay in the recording of the FIR, it
does not mean that the prosecution story stands immeasurably
strengthened".
[Emphasis Supplied]
17. Rahul (PW-1) who got lodged the FIR besides reiterating the incident,
also stated that his aunt (mausi) Shivani stood before the motorcycle of the
police official and stopped him. She caught the hand of the said police official
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and brought him to the place where Sachin was given beating. After seeing the
said police official, accused persons ran away. His aunt made a telephonic call
at 100 number repeatedly. However, none of those PCR calls have been placed
on record by the prosecution. After some time, PCR reached and met his aunt,
who pointed towards Rahul and he was taken to the hospital. Since Sachin, the
deceased was lying on the slope of the pulia, he was not removed to the
hospital by the said PCR. At the hospital, doctor advised him to wash his face
as he was bleeding from face. He could not find Sachin in the hospital, so, he
left the hospital to search Sachin and came to BJRM hospital, where he fell
down and became unconscious. From there, his maternal grandmother and one
boy took him to the house of his elder mausi, where he slept and where he
regained consciousness on the next day morning. Police enquired about him
from his aunt Shivani who told them that he was sleeping. He came to know
that Sachin was seriously injured and taken to BJRM hospital from where he
was referred to LNJP hospital and thereafter, he reached to P.S.Jahangir Puri
when his statement Ex.PW-1/A was recorded which he duly signed.
18. Version of this witness (PW-1) is duly corroborated by not only the
testimony of Shivani (PW-2), his aunt but also of the independent witness ASI
Subhash Chand who, as noted above, deposed that when he was going on 28th
November 2016 at about 9/9.15 p.m. towards G- Block Jhuggi to attend a call,
one female namely Shivani stood in front of his motorcycle and forced him to
stop, informing that a quarrel is taking place. He got down and at her pointing
out, he reached the spot and saw that four boys ran away towards Prayas Child
Home Gali. Since Shivani had made a call at 100 number, ASI Subhash Chand
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saw a PCR van approaching to the spot and on PCR reaching the spot, he left
the spot on his motorcycle to attend his call.
19. Challenge is also laid to the testimony of Rahul claiming that the first
PCR call regarding the incident was made by the father of the appellant Sunil,
namely, Vishwanath, wherein, it was noted that "Rahul ne blade maar kar
injured kar dia". Thus, Vishwanath, father of appellant Sunil stated that Rahul
has inflicted an injury by blade.
20. It may be noted that the appellants led the defence evidence by
examining ASI Ram Bharose (DW-1) who exhibited FIR being FIR No.
664/2016 under Sections 307/34 IPC vide Ex.DW-1/A lodged on the written
complaint of Sunil alleging that on 28th November 2016, at about 9.15 p.m.,
when he came to the repair shop of his younger brother Satish @ Chhotu along
with his friends Gaurav & Nitin, Rahul who had fought with him and his
brother Chhotu on the previous occasion, came to them with his friend Sachin.
Sunil alleged that Rahul and Sachin came in a highly intoxicated condition and
Rahul started abusing them by saying „salon tumhe jaan se maarna hai‟, on
which, he replied, „bhai tu jaa, tumne jyada hee pee rakhi hai‟. Thereafter,
Rahul forcefully clung on him and he pushed Rahul aside, on which, Rahul
threatened them „salon abhi tumhara kaam tamam karta hun‟. Thereafter,
Rahul along with Sachin ran towards G Block and after 5-7 minutes, they both
along with two other boys came there with knife and dandas. On seeing them,
Sunil and his friends ran away whereas, Rahul and his associates ran after
them. It is alleged that Sunil and his associates were caught and given injuries.
From this FIR and the other evidence on record, it is revealed that the incident
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first started at the repair shop of Satish @ Chhotu, one of the accused in the
present FIR, where Rahul and Sachin had come in an intoxicated condition
However, the FIR lodged by Sunil being FIR No. 664/2016 under Sections
307/34 IPC does not explain how Rahul and Sachin received injuries, but, it is
clear that both the sides received injuries as is evident from the fact that the
MLCs of the accused-appellants Sunil and Nitin have been exhibited by DW-3
SI Rakesh Kumar vide Ex.DW-3/A and Ex.DW-3/C respectively revealing
simple injuries, besides MLCs of Gaurav and Satish (Ex.DW-3B and Ex.DW-
3/D respectively).
21. Further, Rahul was extensively cross-examined in regard to the other
cases registered against him, however, no suggestion has been given that
Ex.PW20/A was lodged as a counter-blast to the FIR registered against Rahul.
Be that as it may, whatever may be the outcome of the counter-blast FIR, in the
present case, there is ample evidence on record in the form of depositions of
Rahul and Shivani about Sachin (deceased) being assaulted by the appellants.
Further, no suggestion was given to Rahul that he was the one who inflicted
injury on the deceased Sachin. Though it is argued and claimed that in fact, the
deceased and Rahul were the aggressors, however, in the cross-examination of
Rahul, no such suggestion was put except stating that he had assaulted Nitin by
knife blows and wooden dandas.
22. In view of discussion aforesaid and number and nature of injuries
caused to Sachin, the impugned judgment of conviction and order on sentence
is upheld.
23. Appeals are accordingly dismissed.
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24. Copy of the judgment be uploaded on the website of this Court and be
also sent to the Superintendent, Tihar Jail for intimation to the appellants and
updation of records.
(MUKTA GUPTA)
JUDGE
(POONAM A. BAMBA)
JUDGE
JUNE 26, 2023
'vn'
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