Allahabad High Court
Dhananjay @ Pappu vs State Of U.P. on 2 March, 2023
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 44 Reserved on 06.01.2023
Delivered on 02.03.2023
Case :- CRIMINAL APPEAL No. - 630 of 2014
Appellant :- Dhananjay @ Pappu
Respondent :- State of U.P.
Counsel for Appellant :- Ram Suphal Shukla
Counsel for Respondent :- Govt. Advocate
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Mohd. Azhar Husain Idrisi,J.
(Per Mohd. Azhar Husain Idrisi, J.)
1. Heard Sri Ram Suphal Shukla, learned counsel for the appellants assisted by Sri A.K. Pandey Advocate and learned A.G.A. for the State. Perused the entire material and evidence on available on the record.
2. The accused are in jail since last more than 15 years i.e. since 01.01.2007 their case has not been considered for remission.
3. At the outset, it may be mentioned that accused Dhananjay alias Pappu and Deepak Kumar Thakur were charge-sheeted under Section 302 I.P.C. in Crime No.06 of 2007 and accused Dhananjay alias Pappu was separately charge-sheeted under Section 4/25 Arms Act and in Crime No. 07 of 2007. As described in the impugned judgement dated 22.03.2013. The co-accused in Crime No. 06 of 2007 Deepak Kumar Thakur in the course of trial absconded. Hence, vide order dated 21.11.2012, passed by the learned Trial Judge, his file was separated. Thus, only solitary accused Dhananjay alias Pappu was tried by the trial court.
4. The present appeal under Section 374(2) Cr.P.C. has been preferred on behalf of accused/ appellant Dhananjay alias Pappu challenging the judgment and order dated 22.3.2013, passed by the learned Additional Sessions Judge (Court No.1) Ghaziabad in (1)- Sessions Trial No. 445 of 2007 (State vs. Dhananjay & others), under Section 302 IPC whereby the accused Dhananjay was convicted and awarded a sentence of rigorous life imprisonment with fine of Rs.25,000/- and in default of fine he has to undergo two years' additional rigorous imprisonment and (2)- in S.T. No. 446 of 2007 (State vs. Dhananjay alias Pappu), wherein he was convicted and awarded sentenced to undergo two years rigorous imprisonment with fine of Rs. 1000/- and in default to undergo rigorous imprisonment of two years under Sections 4/25 Arms Act, In default of payment of fine, he has to undergo two years additional rigorous imprisonment. Both the sentences of imprisonment were to run concurrently.
5. In a nutshell, facts of the case, as culled out from the record, are that a first information report was lodged on 01.01.2007 at about 19.45 P.M. under Sections 307 and 302 IPC, at Police Station Shahibabad, District Ghaziabad with respect to the incident occurred on the same day at about 5.30 P.M., by the complainant Salahuddin, against the accused Dhananjay alias Pappu and Deepak, unfolding that his sister's son Ummed Ali and his nephew Shan Mohammad and Waseem had gone at the Ram Manohar Lohiya Park for walking amusement. At evening about 5.30 p.m., two unknown boys came across them and demanded money from Ummed Ali but Ummed Ali refused to oblige their demand which caused great exasperation and excitement to these boys, prompting them to start exchanging abusing language and ensued quarrelling with the victims. The accused persons could not restrain their anger and ire resulting one of the accused taking out Khukri from his bag and attacked upon Ummed Ali and Shan Mohammad. They received serious injuries, as a result of which both the injured fell down in the park. The second boy caught hold of his other nephew. He intimidated threat to his life stating "salon ko jaan se maar do". He, with the help of his nephew Wasim, caught the miscreants and snatched Khukri. On being nailed, one of the accused divulged his name Dhananjay alias Pappu and the other unfolded his name Deepak Kumar Thakur. In the meantime, Satish and Arif Chaudhary, also arrived at the place of occurrence. Anyhow, he controlled both the injured and dialed- 100 number. Police personnel arrived at the spot. The injured Ummed and Shan Mohammad were taken to Ambey hospital through police Gypsy, where the injured Ummed was declared dead and the other injured Shan Mohammad was referred to G.T.B. Hospital, Delhi for treatment, where he also succumbed to injuries. Both the assailants were taken to police Station Shahiabad Ghaziabad alongwith Khurki which was saturated with blood. The informant Salahudin gave tehrir written by Munna Khan at the police station.
6. On the basis of the abovestated tehrir (written complaint) a first information report was registered at the Police Station Shahibabad, District Ghaziabad on 1.1.2007, as crime No. 06/2007 under Section 302, 307 I.P.C. against Dhananjay and others and crime No. 07/2007 under Section 4/25 Arms Act against accused Dhananyay alias Pappu. The particulars were entered into the Kayami G.D. and Chik F.I.R. The investigation was entrusted to S.S.I. Malkhan Singh.
7- On the investigation being put in motion I.O. reached at the spot alongwith other police personnel, recorded statement of witnesses, prepared the site plan of the place of occurrence, collected the bag and cover of Khukari from the place of occurrence and prepared the recovery memos. The accused appellant and the co-accused were taken into police custody on 1.1.2007 and recorded their statements. The blood-stained khukari was also taken into possession by the investigating officer. Against accused Dhananjay Kumar Singh alias Pappu, case crime no. 7/2007 under section 4/27 Arms Act was registered on the same day. He also collected blood stained and plain soil from the place of occurrence and memo of the same were prepared.
8. The inquest report of the deceased Ummed was prepared in the presence of witnesses and as per opinion of the witnesses to ascertain cause of death, postmortem of the dead body was proposed. After completing the necessary formalities, The documents like request letter to C.M.O. challan lash, photo lash, sample of seal, with regard to the post mortem, were prepared and dead body of the deceased Ummed wrapped in sealed cloth cover and was taken to the mortuary for autopsy, accordingly. Dr. K.N. Tiwari conducted the the post mortem of the deceased Ummed.
9. The investigation officer (hereinafter referred as I.O.) after collecting the credible and clinching material and evidence showing the complicity of the accuse appellant and the co-accused submitted the charge sheet under sections 302 IPC and separate charge sheet against the accused Dhananjay alias Pappu under Section 4/25 Arms Act, before the learned Chief Judicial Magistrate, Ghaziabad, who took the cognizance of both the cases.
10. Being exclusively triable by the court of sessions, Chief Judicial Magistrate Ghaziabad, committed them to the Sessions Court on 9.4.2007. Later, the Sessions Judge transferred it to the court of Sessions Judge Ghaziabad (Court No. 1). for trial.
11. Learned Additional Sessions Judge, framed, charges against the accused appellant Dhananjay Kumar Singh alias Pappu and Deepak Kumar Thakur under section 302 IPC and, against accused Dhananjay alias Pappu and under Section 4/25 Arms Act against the accused Dhananjay alias Pappu separately. The charges were read over and explained to the accused/ appellant. They abjured the charges and pleaded "not guilty" and "claimed to be tried".
12. To bring charges home, prosecution examined, 8 witnesses as under:-
Sl.No. Name of witnesses Pw. No. 1 Wasim Pw- 1 2 Salahuddin Pw- 2 3 Dr. Arvind Kumar Pw- 3 4 Dr. K.N. Tiwari Pw-4 5 Constable Som Pal Singh Pw- 5 6 Munna Khan Pw- 6 7 Shamshad Pw- 7 8 Malkhan Singh Pw- 8
13. In Support of ocular version, following documents were also filed and proved by the prosecution-
S.L.No. Particulars Ext. No. Proved By 1 Recovery Memo Khukari Ex. Ka- 1 Pw- 1 2 Written Report (Tahrir) Ext. Ka- 2 Pw- 2 3 P.M.R. Deceased Shanu Ext. Ka- 3 Pw- 3 4 P.M.R. deceased Ummed Ali Ext. Ka-4 Pw-4 5 Inquest Report deceased Ummed Ext. Ka- 5 Pw- 7 6 Panchayatnama deceased Shanu Ext. Ka- 5 Pw- 7 7 Site Plan Ext. Ka- 6 Pw- 8 8 Recovery Memo blood stained and plain soil Ext. Ka- 7 Pw- 8 9 Recovery Memo bag and Khukari Cover Ext.Ka-8 Pw-8 10 Charge Sheet u/s302 Ext.-Ka-9 Pw- 8 11 Supurdginama Lash Ext. Ka-10 Pw- 8 12 Photo Lash Ext. Ka-11 Pw-8 13 Letter of request for P.M. Ext. Ka- 12 Pw-8 14 Sample Seal Ext. Ka-13 Pw-8 15 Carban Copy G.D. Ext. Ka-14 Pw- 8 16 Chick FIR Ext. Ka- 15 Pw-8 17 Charge sheet u/s 4/25 Arms Act Ext. Ka -14 Pw-8 18 Recovered Khukri Ext.- 1 Pw-2 19 Wrapping cloth Ext. Ka-1 & Ka2 Pw-2
14. After the conclusion of prosecution evidence, statements of the accused Dhananjay alias Pappu was recorded under Section 313 Cr.P.C. It was stated by the accused that he had neither demanded any money from Ummed (deceased), nor inflicted any blow of Khukari (knife) to the injured persons. A false recovery has been shown from his possession. The police in connivance and inkling of prosecution witnesses, have falsely implicated him in the present case. It was specifically averred by accused that the victims were roving in the park and were ravishing and teasing to the teenage girls, which was stiffly confronted by the melee of said park. The woes and throes of the public inflamed and the victims resulting into ugly scene of thrashing and beating to Ummed Ali and Shan Mohammad. On account of the injuries inflicted upon them, they succumbed to their injuries.
15. No defence evidence adduced by accused
16. The prosecution in substantiation of its case examined the P.W.1 Wasim, who stated on oath that the instant incident had occurred on 1st January 2007. He in the company of his uncle Salauddin, cousin brothers Shan Mohammad and Ummed Ali went in the Park for amusement and picnic at about 4.30 p.m. He and his uncle Salauddin were following at a distance of 15 to 20 paces, to Ummed Ali and Shan Mohammad, who were ahead to them. At about 5.30 p.m. Dhananjay (appellant) appeared and demanded money from Ummed Ali (deceased). Ummed Ali enquired reason for demanding the money which caused great heat of passion and excitement to the accused-appellant. As a consequence of which the accused appellant (Dhananjay) inflicted blow of knife on the holding of Ummed Ali by the Deepak (co-accused). The blow inflicted penetrated dissecting the heart of Ummed Ali. He and Shan Mohammad tried to save Ummed Ali, but the appellant (Dhananjay) attacked upon Shan Mohammad with knife, which caused fatal injuries in stomach, leg and thigh. He and Salauddin grasped to the accused (Dhananjay), and Deepak, they wrested the knife from him. On the shriek and alarm, a number of persons roving in the park and the guards gathered on the spot. The accused persons were nailed by the gathering, so they could not flee away from the spot. He went outside and informed police by dialing 100 number from P.C.O. and the said information was also communicated to the family members. A number of persons including the relative Iliyas and Munna Khan came from residence. In the meantime police also reached at the spot. The police took Ummed and Shan Mohammad at the hospital, in association with him and others. The doctor attended the injured and declared Ummed Ali dead. Thereafter the report was lodged. Both the accused persons were taken at the police station Sahibabad alongwith Khukari (knife). Memo of recovery was reduced in writing at the police station and the signature of the witnesses were obtained. The witness proved his signature on the memo of recovery and proved it as Ext. Ka.-1. Looking to the acuteness and perilous situation injured Shan Mohammad was referred from Ambey Hospital to G.T.B. Hospital, Delhi, where he succumbed to injuries in the night.
17. In support of its stand, the prosecution has examined, Pw- 2 Salauddin. He deposed that the said incident has occurred on 01.01.2007, on the day of festival of Idu-zuha. At about 4.30 p.m. he in association with his sister's son (Bhanja) Ummed Ali and nephew Shan Mohammad and Mohd. Wasim (P.W.1), had gone to Ram Manohar Lohiya Park for recreation and amusement. On reaching there, they started to fro wander in the said park. He and Wasim were roving behind Ummed Ali and Shan Mohammad with a distance of 15-20 paces. At about 5.30 p.m. the accused appellant Dhananjay and Deepak came and demanded money from Ummed Ali. The victim Ummed Ali enquired from the accused appellant for what purpose he was demanding the money. At this accused/ appellant and co-accused Deepak were highly infuriated and started to hurl abusive and vituperative words denigrating his image. The co-accused Deepak had caught hold of Ummed Ali and accused/ appellant Dhananjay inflicted blows, from behind with Khukari (knife) which penetrated across his heart. Shan Mohammad made best efforts to save Ummed Ali, but accused appellant/ Dhananjay attacked upon the Shan Mohammad with his Khukari (knife) causing serious injuries to them. Looking to this incident, he and Wasim ran towards the assailants and caught hold of accused Dhanjay and co-accused Deepak and snatched Khukari from the hand of appellant/ Dhananjay. Looking to the episode and lamentation, a number of persons roving in the park and the Guards arrived at the place of occurrence. They encircled accused persons. His nephew Wasim informed the incident through P.C.O. to the police and victim's family members. In a short span of time, police and his relatives namely Munna Bhai, Taj Mohammad, Abbas and Iliyas came at the place of occurrence. He and police personnel took to the injured at the Ambe Hospital, Ghaziabad where Ummed Ali was declared dead. Subsequently thereto, on their narration, the tehrir scribed by Munna Khan was given in P.S. on while first information report was lodged on the basis of tehrir and the accused persons were taken into custody by the police. The blood saturated Khukari (knife) was also presented at the police station Sahibabad. The witness proved the tehrir, as Ext.Ka.2. Memo of the snatched Khukari (knife), presented at police station Shahibabad was prepared on which his signatures were obtained. The witness proved it as Ext. no.1. The said Khukari was brought in the court in a sealed cover and was Ext. 8 to the witness, P.W.2 Salauddin, who identified the said Khukari, averred that the said Khukari was used by the accused appellant Dhananjay in causing injuries to Ummed Ali and Shan Mohammad. The said Khukari (knife) and the cloth covering it, were marked as physical Ext. 1 and 2. The injured Shan Mohammad was referred from Ambey Hospital to G.T.B. Hospital, where in the night at about 4.30 hour he succumbed to injuries, inflicted upon his person.
18. In corroboration to ocular evidence, the prosecution has examined P.W.3 Dr. Arvind Kumar, who deposed that on 2nd January, 2007 he was posted in G.T.B. Hospital, Delhi, as Senior Demonstrator. On the said date at about 11.30 A.M, the corpse of Shanu was brought, wrapped in a white cloth under the supervision of A.S.I. Hukam Chand at the mortuary for autopsy. They identified the body of the deceased Shan Mohammad. He conducted the post-mortem examination of the deceased on 2.1.2007 at about 11.35 A.M. and found the following facts:-
(i)- On general examination of the body of the deceased Shan Mohammad, it was found that there was reddish colour on the back side. Mouth and eyes were closed. In the right arm, a tato mark as "S" was punched. The deceased was aged about 20 years, he was a person of average built. Rigor mortis, was in developing phase, present all over limbs.
(ii)- Ante-mortem Injuries- During post-mortem examination, the Doctor following ante-mortem injuries on the person of Shan Mohammad:-
(1)- Stitched incised stabbed wound, penetrating 6cm x 0.3 in size in the lower left side of the abdomen. Upper lateral angle of wound cut is present over in size the stomach was stitched, the wound was cavity deep of the abdomen and going upward back medially left flie fossa, running parallel to left flic crest obliquely placed. Abdomen was full with blood. There was blood around intestine also. On exposing the track on the samall peritoneum cavity containing blood. Multiple incised wounds were present. Evidence of surgical repair present. Total depth of the wound is 18.5. cm.
(2)- ''J' shaped stitched cut wound. On opening the stitches, incised wound of size 15 cm x 0.2 cm x 6cm present over posterior lateral aspect on left arm, muscle deep are cut wound, is 15 cm above the elbow joint.
(3)- Obliquely placed stitched wound on left chest. On opening the stitches, incised stitched wound of size 3 cm x 0.2 cm present. Upper lateral angle of wound is acute. Wound is present over posterior auxiliary line of left chest, 7 cm below posterior auxiliary fold. Direction of wound is backward, and downward. Medially wound is subcutaneous and muscle deep and by making exit wound is of size 1.5 cm x 0.2 cm, in size, 4 cm below entry wound.
(4)- Incised wound 2 cm x 0.1 cm x 0.5 cm obliquely placed, present over the right side of chin.
(5)- Incised wound of 2 cm x 0.1 cm x 0.8 cm present over dorsum of left hand, 3.5 cm over proximal to left knuckle of little finger of left hand.
(6)- Stitched cut wound. On opening the stitches, 6 cm x 0.2 cm x bone deep present, over left side of skull, just behind the parietal region (left) with undergoing the fracture of upper bulb of left parietal bone of size 3 cm x 0.1 cm.
(7)- Sapratomy made by the surgion 18 cm x 0.4 cm in the middle of abdomen Injury no.1 is surgically incised. Injury no. 7 is surgically disclosed.
(iii) Internal Examination--
(iv)- The doctor found skull in extravasutim blood present under surface below injury no.6.
(v)- Skull, as mentioned in injury no.6, rest normal. The brain was pale and edematous. empty containing blood. Stomach empty walls congested. Small intestine as mentioned in injury no.1. There is a span of 8 hours between death and post mortem.
(iv) Cause of death:-
(i)- In the opinion of doctor the cause of death of the deceased Shan Mohammads was due to cut of intestine blood vessels, excessive bleeding which is possible due to one edged weapon. Thus hemorrhage and shock due to ante-mortem injuries to abdominal vessel and other.
(ii)- Injury no.1 is sufficient to cause death in ordinary course of nature.
19. The doctor P.W. 3 deposed that the post mortem examination report was prepared by him in his own hand-writing and signature. He proved post-mortem examination report as Ext. Ka. 3.
20. The prosecution has also examined P.W. 4 Dr. K.N. Tiwari. He deposed that he was posted at M.M.G. Hospital, Ghaziabad on 2.1.2007. On the fateful day, he had conducted autopsy of deceased Ummed Ali, whose dead body was brought under the supervision of constable Manoj Kumar and Constable Sompal Singh, in a seal cover. The aforesaid constables had identified to the corpse.
21. Doctor found deceased, about 21 years old and his death occurred within half to one day before the autopsy. He was average built and rigor mortis was present in all over limbs.
(v) Ante mortem injuries. During post-mortem, Doctor found the following Ante mortem injuries on the person of the deceased, Ummed Ali:-
(1)- Stab wound with clean cut margins 44cm x2 cm, on Lt. side of the chest, 2 cm middle at level of, Lt. nipple (transversely present). The wound was chest cavity deep. (2)- In internal examination, the doctor also found that pericardium of the heart and left lung was cut chest cavity deep was. About ½ litre blood bleeded out.
(v) Cause of death:- In the opinion of the doctor the death of the deceased caused due to hemorrhage and shock, as a result of ante-mortem injuries sustained by him.
22. The doctor stated that the post-mortem examination report was prepared by him in his own hand-writing and signature. He proved the post mortem examination report as Ext. Ka. 4. The doctor endorsed that aforesaid injuries on the person of Ummed had come on 1.1.2007 at about 5.30 p.m. by the incising of some sharp edged weapon like knife.
23. In order to substantiate the prosecution version, Constable 1103 Sompal was examined as P.W.5. He stated on oath that on 1.1.2007 ,he was posted at Police Station Sahibabad. He divulged that on the fateful day, at about 11.00 p.m. the inquest of deceased Ummed was prepared before the witnesses. The corpse of Ummed was given under our supervision after completing necessary formalities and handing over the requisite papers by P.W. 8 S.I. Malkhan Singh, for carrying it to the mortuary. After making necessary entries at police line Ghaziabad and M.M.G.Hospital Ghaziabad , the autopsy of Ummed was conducted on 2.1.2007. The corpse of Ummed (deceased) was under his vigil and watch, till it was taken inside the mortuary. In the meantime, the said constables did not allow to anybody to make access to the corpse.
24. P.W.- 6 Munna Khan stated on oath that on the date and at the time of incident, he was present at his house. He was informed that Ummed Ali and Shanu had sustained serious injuries. They were taken at Ambey Hosital. On receiving the information, he reached at the hospital. On reaching at the hospital, he came to known that Ummed had been declared dead and Shanu had been referred to G.T.B. Hospital, Delhi. He had scribed the tehrir, on the narration of Salauddin. He had scribed whatever was uttered by Salauddin and the same was read over to him. Salauddin had put his signature on the said document. He had proved the said report affirming that it was scribed by him and the same was already marked as Ext. Ka.2.
25. In order to authenticate the charge, the prosecution has examined Shamshad as P.W.-7, who stated on oath that on 1.1.2007, inquest with respect to the corpse of Ummed was conducted. After carrying out the necessary formalities, the corpse of Ummed was sent to mortuary. He had put his signature on the inquest which was duly identified by him. He proved the said inquest report as Ext.Ka.-5.
26. Further in substantiation of charge, the prosecution had examined S.I. Malkhan Singh as P.W.-8. He stated on oath that he was posted at police station Sahibabad on 1.1.2007. On the same the FIR was registered at the police station Sahibabad. The investigation was entrusted to him. During investigation, he visited the place of occurrence, prepared site plan, recorded statement of the witnesses. He had prepared the memo of recovery of Khukari (knife) and had also recorded the statement of Dhananjay (appellant) and co-accused Deepak and the other witnesses H.M. Devendra Singh Dhaman. Thereafter proceeded to Ambey Hospital and on 2.1.2007, he visited to G.T.B. Hospital at Delhi, where he had seen to injured Shan Mohammad. The injured Shan Mohammad was not in a position to utter any thing. He had recorded the statement of Salahuddin, Wasim, Salim, Arif Chaudhary, Munna Khan etc. He prepared the site plan in his own handwriting and signature. He proved the sight plan as Ext. Ka.6. He had taken blood stained and plain cement earth from the place of occurrence and the same was exhibited as Ext.- 7. He took a bag in possession from the place of occurrence in which the cover of the Khukari was kept and a fard (memo) was prepared him in his writing and signature by him. He proved it as Ext. Ka.-8. He had received the inquest report and post mortem report of Ummed (deceased) on 4.1.2007, he copied the chick and carban copy of G.D. and proved them as Ext. Ka- 14 and Ka- 15 statement of witnesses of inquest namely Abbsas, Taj Mohammad, Mohd. Ansar , Mohd. Farookh and Shamshad Ali, Firoz and Julfikar who had identified the corpse of Shan Mohammad. He had also recorded the statement of A.S.I. Hukum Singh on 12.3.2007, who had got the Panchnama prepared and was marked as Ext.Ka.9. The Panchnama of Ummed Ali was prepared by S.I. Malkhan Singh at the police station before him. He verified the writing and signature of S.I.Malkhan Singh. S.I. Malkhan Singh had put his signature on the inquest report Ka.6 and other requisite papers. Challan Lash, Photo Lash ,letter of Chief Medical Officer, specimen of seal, the writing of S.I. Malkhan Singh and signature were duly verified. The papers were duly proved as Ext. Ka.10, Ka.11, Ka.12 and Ka.13. He had also conducted the investigation of Sessions Trial No. 446 of 2007 under sections 25/4 Arms. The fard of Khukari was prepared by Devendra Singh Head Moharrir (H.M.) at the time of initiation of proceedings and was exhibited Ka.1. Chik F.I.R of the case was written by Head Constable Devendra Singh which was entered in the G.D.No.42 . The said chik FIR was prepared on 1.1.2007 at 19.45 p.m. The chik FIR was duly proved and marked as Ext. ka 15. The witness stated that after due investigation he submitted charge-sheet against accused Dhananjay and Deepak, under Section 302 I.P.C. and against Dhananjay alias Pappu a separate charge-sheet was submitted under Section 4/25 Arms Act. He stated that both the charge-sheet were prepared by him and in his own writing and signature. He proved both charge-sheet Ext. Ka- 9 and Ext. Ka- 14.
27. The prosecution witnesses, so examined, were also duly cross examined by the defence.
28. P.W.-1 Wasim during his cross examination, averred that at the time of incident, Salauddin, Ummed and Shan Mohammad were present with him in Lohiya Park. Dhananjay demanded money from the Ummed and Ummed loudly said "kaise paise." Ummed was accompanied by Shanu, he thought that they are talking something generally. He authenticated the demand of money by the accused Dhananjay from Ummed on the basis of loud voice of both. He had also seen Deepak. He could not properly understand the dispute, because of clamour in the park. He also proved that Dhananjay had taken out the knife (Khukri) and Deepak caught Ummed. He gave a blow of knife to Ummed from his back, which penetrated across his heart. The knife was visible from outside. Deepak had caught Ummed Ali from right side. Shan Mohammad was trying to pacify them. The accused persons caught hold of Shanu and inflicted him injuries. Shanu tried to flee away, but approximately about 15 to 20 paces fell down on the pakka kharanja. Waseem was not present when the blow of knife was inflicted on Ummed. He emphasized his presence when Shanu was injured with knife. Shanu had run away, after getting separated from the clutches of accused persons. He along with Salauddin (P.W.2) had caught the accused persons. On the shriek and scream, a number of persons gathered including the Guards of the park. On the direction of his uncle Salauddin he had given telephonic call to his family members and police personnel. The said call was received by his mother, on mobile no.9871212230. Ummed is the son of his father's sister. The accused persons were also caught by the Guard and other persons in the park. The time consumed in inflicting injuries to the victims, was hardly two minutes. The victims were taken to the Ambey Hospital. Saleem and Munna and other persons of the locality came at the Hospital. He and Salauddin had gone together therein Hospital in one vehicle and the remaining persons came in another vehicle. Ummed Ali was inflicted only one knife blow and Shan Mohammad was inflicted a number of knife blows. The victim Shan Mohammad was inflicted in hands, legs and stomach. When Ummed was inflicted he could not reach there at the exact spot. Shan Mohammad was alive and was referred to G.T.B. Hospital. He stayed there Ambey Hospital at about half an hour. Shan Mohammad was taken from Ambey Hospital to G.T.B. Hospital by Ambulance. The time consumed in reaching to G.T.B. Hospital, was about half an hour. Shan Mohammad took his last breath in G.T.B. Hospital at about 1 to 2 ''O' clock on the same night. Dhananjay had never given to Ummed any money. He showed his ignorance as to whether he had demanded money from anyone else also on the date of occurrence. A number of persons were moving in the park belonging to different casts. The women and girls were also moving in the park. He disowned that Ummed and Shan Mohammad had teased or molested to any girl or women which was opposed by the assailants. He gainsaid that no outsiders had attacked upon the victims from the gathering. He also denied that he had taken into custody to the assailants from gathering. He was not knowing to the assailants from earlier and did not have any animosity with them. He had heard the voice of Dhananjay who had spoken loudly. Thereafter Deepak had caught Ummed and Dhananjay had inflicted the knife blows. He could not ascertain as to whether the assailants had come with the motive of killing to victims as the incident had occurred at the spur of moment. He perceived that in case the victims would have given money to the assailants, they would not have lost their lives. The accused appellant (Dhananjay) had hung the bag on his shoulder at the time of demand of money. The accused appellant (Dhananjay) was caught on the spot after executing the occurrence. The bag containing the knife was also at the place of occurrence. He had not seen the bag putting in the shrubs to anyone. He could not ascertain as to whether the bag was present there or not at the moment of recovery. He was cross examined that earlier he had disclosed that assailants had thrown the bag in the bushes in his presence. Both the accused were trying to flee away. The accused appellant was having the bag of Khukari in his hand at the time of executing the crime. The accused appellant Dhanjay had thrown the bag in the shrub after executing the offence. The accused appellant Dhananjay was earlier caught by his uncle Salauddin and thereafter he caught him. The accused appellant Dhananjay also tried to attack upon Salauddin. He had caught him from behind and snatched the Khukari.
29- The prosecution witness no. 2 Salauddin was cross examined during trial. He averred that he, in association with Wasim (P.W.1), Ummed (deceased) and Shan Mohammad deceased) had proceeded from his house at about 4.30 p.m. on 1.1.2007. Salauddin and Wasim were riding in one motor cycle. Mohammad Ummed & Shan Mohammad were riding on Hero Splendor motor cycle. The motor cycle driving by Wasim (P.W.1) was belonging to Irfan. The time consumed from his house to the park was about 15 to 20 minutes. The heated exchange of words between assailants and the victims ensued after half an hour. The P.W.2 Salauddin and the victims were following at minor distance to each other. He disclosed that the distance of the victims from him was about 20 to 25 paces. The accused appellant demanded money from Ummed but he could not confirm the exact amount of money, which was demanded. On refusal to Ummed to pay the money to the accused appellant caused infuriation and exasperation to the accused persons hurling abusive words. Ultimately fisticuffs were started and the accused appellant stabbed Khukari upon Ummed. There was not huge gathering in the park. He had heard the voice of demand of money as well as refusal to pay the money. When the accused appellant Dhananjay had pierced Khukari, he was at a distance of 15 paces. The Khukari was put inside a bag covered by chain. Black cover was put on the Khukari. He had never seen to the assailants in the company of victims. He had for the first time seen the assailants. To his best knowledge, there was no transaction between the assailants and the victims. The incident had taken place on account of refusal to pay the money to the assailants. When he had caught to the accused appellant Dhananjay, the accused appellant had already inflicted 7 to 8 injuries to him. Ummed was injured with Khukari from behind the left side Dhananjay was stabbing the Khukari all around, which caused great nervousness to him therefore, he could not muster courage to hold him. The time of incident was confirmed about 5 to 5.15 p.m. There was little fog but the sight was visible. The information of the incident was given by Wasim (P.W.1) from P.C.O. at about 5.30 p.m at the police station and also to the members of the family. The distance of the police station was about two kilometers. The family members and the police personnel reached at the same moment.
30. The investigating officer had recorded the statement of P.W.2 Salauddin on the next day. The investigating officer had not apprised him about his statement. The victims were taken by the police personnel at the Ambey Hospital in association with the family members of the injured.
31. The Khukari was handed over by the P.W.2 Salauddin to the police officer, at the police station. The bag in which Khukari was kept was also taken by the police personnel in their possession.
32. The police team has visited the spot inspection in the presence of P.W.2 Salauddin. The bag was of cream colour having its height about one feet. At the time of spot inspection, none was present there except Salauddin (P.W.2). The guard deputed at the park had also come equipped with guns. The guard had come after execution of the occurrence. He proved his presence at the crucial juncture of incident. He also disowned that there was any scene of teasing and tormenting of girls in the park by the victims Ummed and Shanu. There is not any iota of evidence delineating misbehavior of victims with the girls roving in the park. He proved that accused Dhananjay and Deepak had done to death to Ummed and Shanu. The appellant Dhananjay and the co-accused Deepak are the real perpetrator of crime as a result of which Ummed and Shahu sustained fatal injuries culminating to their death.
33. During his cross examination, Pw- 3 Dr. Arvind Kumar, who had conducted post mortem of Shanu, stated that Shanu was admitted in the hospital on 1.1.2007 at about 8.35 p.m. and succumbed to injuries on 2.1.2007 at 4.00 p.m. The cause of death of Shanu was hemorrhage shock due to ante mortem injuries to abdominal vessel and organ produced by single sharp edge weapon. All injuries are ante mortem in nature .Injury no.1 is sufficient to cause death in ordinary course of nature.
34. In his cross examination, Pw-4 Dr. K.N.Tiwari who had conducted post mortem of Ummed (deceased) stated that corps of the deceased Ummed was brought by Constable Manoj Kumar and Constable Somepal Singh The cause of death of Ummed was hemorrhage and shock as a result of ante mortem injuries sustained. He had proved that the deceased Ummed was caused injury by single sharp edge weapon on the vital organs, inclusive of chest.
35. The learned counsel for the defence also cross examined, P.W.5 Constable Sompal Singh. He stated that the dead body of Ummed Ali was firstly brought at Ghaziabad Police Line at about 1.00 p.m. in the night on 2.1.2007, Next day, the corpse of Ummed was taken to M.M.G. Hospital at Ghaziabad, the corpse of Ummed was taken to mortuary Hindan Ghaziabad after getting the entry done in the M.M.G. Hospital. Both the constables were present at the juncture of post mortem. After autopsy, the corpse of Ummed was handed over to his family members.
36. The P.W.-7 Shamshad was also subjected to the cross examination during trial. He disclosed that Shanu and Ummed is the son of his Sadhu. It was the holistic day of Idu-zuha. He had sacrified goats and had brought the meat at the residence of the victims.e wHe He He was called at the police station for completing the inquest. He confirmed that Ummed had died on the spot and Shanu had succumbed to injuries at the hospital. He had stated that the dead body of Ummed was sealed before him.
37. P.W.-8, investigating officer Malkhan Singh, was also cross examined. He stated that he had conducted the investigation of the said crime. Entire C.D. was prepared by him. He had also recorded the statements of the witnesses. He had recorded the statements of the witnesses. The name of Arvind, Dharmveer were not put in the list of witnesses, because they were not the witnesses of fact. The statements of Arvind, Dharmveer were recorded at the Lohiya Park. He had interrogated to the persons gathered at the place of occurrence and recorded their statement.eHe H Hhhhh
38. Arvind, Dharmveer had given their statement in support of the prosecution. Arvind, Dharmveer, deputed at the Lohiya Park in the capacity of Guard. He unfolded that those persons disclosed that the quarrel had ensued between the victims and the assailants, on account of tormentation and teasing of girls. Further it was stated by P.W.8 Malkhan that it was wrong to say that inident had occurred on the issue of tease and taunt to the girls. It was also divulged by P.W.8 that he did not make recovery of Khukari The Khukari was recovered by the complainant and the witnesses and had brought at the police station. Head Moharrir Devendra had prepared the fard of Khukari on 1.1.2007 at the police station. He had sent Khukari and other incriminating articles for forensic report.
39. We have heard learned counsel for the appellant and learned A.G.A. for the State, at length. Perused and analysed the entire evidence and other material, on record.
40. Learned trial court on the basis of the above evidence convicted and sentenced the accused appellant Dhananjay alias Pappu under Section 302 I.P.C. and under Section 25 Arms Act by the impugned judgement dated 22.03.2013. Learned counsel for appellant has assailed the impugned judgement on various grounds.
41. Learned counsel for appellant argued that there is no material from the side of prosecution to evince that the accused persons had hardboured vengeance on the issue of paltry demand of money. The witnesses of facts are the close relations of the deceased and have falsely embroiled the accused persons on suspicion leaving the actual assailant. The presence of prosecution witnesses at the place of occurrence is highly doubt full and not really commend acceptance for their testimony. There are material contradictions in the statement of prosecution witnesses. Medical evidence also do not support the ocular evidence. Tangible materials were elicited from the evidence of the prosecution witnesses in cross examination by which their testimony was not found to be satisfactory. The chain of evidence and circumstances is not complete to conclusively establish that the accused person are the perpetrator of dreadful crime of murder of Ummed Ali and Shanu. The learned trial judge nisred and missappriciated the entire evidence in convicting and sentencing the appellant u/s 302 IPC. The circumstance from which the conclusion of guilt is to be drawn is not fully established. The prosecution has failed to show that in all human probability, the act have must been done by the appellant. It is also argued that appellant never demanded mony from the victim Ummed Ali. The incident to place in the park were girls and women were also roving there the victim were tesing and tainting them, public opposed and beaten them as a result of which fatal injuries were received by the victims. Appellant has no role in the incident. The conviction and sentence awarded to the appellant u/s 302 IPC is not sustainable and the impugned order dated 23.03.2013 may be quashed and the accessed appellant may be set at liberty.
42. Per contra, learned AGA opposed the arguments submitted by learned counsel for appellant. He argued that there is no embellishment in the prosecution version. There is no material contradiction in the state mant of prosecution witnesess. Medical evidence also supports the ocular evidence. The evidence adduced by prosecution has established guilt of appellant beyond reasonable doubts. The victims died of inflicting the injuries on their person by the appellant and the co accused there is a chain of evidence to demons treat that the diseased victims were inflicted serious injuries with khukri as result of which the victim Ummed Ali took last breath and Shan Mohd was seriously and fatally injured. Accused were caught on the spot with khukri and other incriminating materials. No explanation by appellant as to how and in what manner victims were inflicted grave and grim the story of teasing and tormenting of girls could also not establish on no body had come forward to prove this version of defiance. The learned Sessions Judge has passed order of conviction and sentenced the appellant after appreciating the entire evidence of record. Hence the judgment of learned Sessions Judge may be sustained
43. Learned counsel for the appellant has further elaborated his arguments. He argued that the appellant has been falsely roped in the present case. The incident had occurred inside the Lohiya Park on 1.1.2007 at about 5.30 p.m. on the issue of demand of money from Ummed Ali (nephew) of the complainant. The mere refusal to pay the money to the appellant will not instill such strong motive that the accused appellant will attack upon the victims to take away his life. Learned counsel for the appellant placed reliance upon Virender V. State of Haryana [2020 (1) UP Cr R 356] wherein the Apex Court has held that prosecution has failed to prove any common intention on appellant's part. There is no hint of motive. The conclusion of the lower court is based on assumption and conjectures and not on reliable evidence. In spite of the prosecution having filed to discharge its burden to prove the case against the appellant beyond reasonable doubt- evidence against appellant is shaky and insufficient. Benefit of doubts must go to him.
44. Learned A.G.A. refuted the argument putforth by the learned counsel for the appellant. In this behalf it may be relevant to mention that there is a plethora of cases wherein the Apex Court has observed that motive is relevant facter in all criminal cases, whether based on testimony of eye witnesses or circumstantial evidence. In Shreekantiah Vs. State of Bombay, 1955 SCJ 233 the Apex Court observed-
"It has to be kept in mind that a person does not commit a grave illegal act which might expose him to prosecution and possible disgrace, unless he is prompted by some strong motive."
Whether a criminal act may be presumed without motive? Generally, no criminal act be presumed, unless motive is proved. But there may be cases when even if motive is not proved the commission of criminal act may be presumed. It is not mandatory that motive must exist to prove a criminal act nor is it mandatory that motive must be proved before a criminal act is presumed. In this context it would be apposite to mention here that in Yunis alias Kariya V. State of Madhya Pradesh, AIR 2003 SC 539, it was held by by the Supreme Court that when ocular evidence (eye witness) is very clear and continuing. role of the accused person in time stands established. Failure to prove motive for crime has no consequence. Similarly, in Anil Yadav V. State of Bihar, 1992 (1) Crimes 282, it was held that motive is not a sine qua non for the success of prosecution case if the evidence is convincing and not open to reasonable doubt. In Thaman Kumar V. State of Union Territory of Chandigarh, AIR 2003 SC 3975, it was held by the Apex Court that where the ocular evidence is found to be trustworthy and is reliable and finds corroboration from medical evidence, the accused can be safely convicted even if the motive for the commission of crime has not been proved. In State of Punjab V. Sucha Singh, AIR 2003 SC 1471 has observed unambiguously that motive howsoever strong it might be, cannot take place of proof- Thus, we can safely infer from the above discussion that where there is clear proof of guilty act, which stands established beyond a straw of doubt, proof of motive hardly matters and is just superfluous. On the contrary, where there is just no proof of guilty act, the proof of motive is of no significance. In other words, motive alone is meaningless unless accompanied by proof of guilty act.
45. In the present case all the witnesses of facts Pw- 1 Wasim and Pw- 2 Salauddin who are eye witnesses of the incident, has averred that while the victims and they were roving in the park, suddenly the accused appeared on the spot and demanded money from the deceased Ummed Ali. On refusal to oblige their demand stating what kind of money, the appellant caused exasperation and excitement to the appellant, prompting them to fight the victims. They started abusive and vituperative words. They could not restrain their anger and caused injuries to the victims. Thus, snatching of money was of the motive of the accused to commit the incident. The testimony of Pw- 1 Wasim and Pw- 2 Salauddin witnesses are trustworthy of credit and their testimony cannot be discarded. They have proved the prosecution story. Medical evidence has very well supported their testimony. In the above legal scenario, even if there is no strong proof of motive the prosecution case cannot be discarded.
46. It is next submitted by the learned counsel for the appellant that there is no independent public witness to support the prosecution version. The learned counsel for appellant argued that the witnesses of facts are related to deceased and thus interested witnesses. It is next argued that there were other witnesses also available but prosecution did not examined them. Therefore, the testimony of the prosecution witnesses is unworthy of credit, learened A.G.A. refuted the argument. In this behalf it may be mentioned that there is catena of decision of the apex Court. Nirmal Singh Vs. State of Bihar 2005 (41) ACC 302 (SC), Hukum Singh Vs. State of Rajasthan, 2000 (6) Supreme Court 245 (SC) Jagdish Vs. STate of Haryana AIR 1998 SC 923 State of Rajasthan Vs. Hanuman AIR 2001 SC 282 R. Prakash Vs. State of Karnataka 2004 (49) ACC 777 (SC) Sandeep Vs. STate of Haryana 2001 CRLJ 1456, Sewak Singh Vs. State of MP 2002 (44) ACC 1 (SC) Ambika Vs. State, 2000 SCC (Criminal) 522, Surendra Narayan Vs. State, AIR 1998 SC 198. The Apex Court has held time and again that if ocular evidence is supported by the medical evidence, the examination of relation or interested witnesses, will not affect prosecution case adversely. It is true that P.W. 1 Wasim, is nephew of P.W. 2 Salauddin and Pw- 2 and the victims are their sister's and brother's son uncle of Pw- 2 and deceased are the nephew wife, daghter and son of the deceased Sikander, but, it may be mentioned that although they are related to the deceased. However, nothing could be shown by the accused/ appellant that they were nurturing animus and grudge against the accused, as such their testimony cannot be discorded merely because of their relationship with the deceased. The two guards namely Arvind and Dharamveer deputed at the said park were not examined. Which creates serious doubt about the prosecution version. Besides, there is no justification if injured witnesses or his relatives will implicate an innocent excepting real culprit. However, an inimical or relative witnesses should be carefully examined.
47. The accused/ appellant has been assigned specific role of causing injury to Ummed Ali with Khukari . There is no material inconsistency or discrepancy in the prosecution version.
48. Learned counsel for the appellant also argued that the alleged incident took place amongst the gathering of the people and the accused persons were held only by the complainant and Wasim (P.W.1) and none had appeared, from the public to hold them. In this regard, it may be mentioned that prosecution has examined Pw- 1 Wasim and Pw- 2 Salauddin as eye witnesses whose evidence is trustworthy. They clearly assigned the role of inflicting Khukri to both the deceased. There is no material contradiction in their statement. It is an established law that quality of the witnesses matters and not be quantity and even if there is solitary believable witness, there need not to examine multiple number of witnesses. Pw- 8 in his S.I. Malkhan Singh has explained that there were number of people present but they were not eye witnesses so he need not taken them as witnesses. Prosecution has also examined Pw- 6 Munna Khan who is the scriber of the first information report (tehrir) Ext. Ka- 2 and also Pw- 7 Shamshad who is the witness of inquest report and they are not the witnesses of facts and neither eye witnesses. Therefor the evidence of the witnesses of the fact are worthy of credit. It is common knowledge that often independent witnesses did not comeforward to support prosecution case, due to their own security reasons.
49. Learned counsel for the appellant has submitted that the quarrel ensued between the accused persons and the victims on the issue of tease and taunt upon the girls roving in the park but no girl has come forward to narrate about the said incident. There is not an iota of evidence that the victim has taunt or tease any women. The P.W.1 Wasim and P.W.-2 Salauddin were the eye witnesses who had seen the entire incident and snatched the Khukari from the accused persons, have also not supported this defence version. Appellant was accorded an opportunity to adduce evidence for his defence but they did not availed the opportunity. This leads us adverse inference to the defence version. It may also be mentioned that Pw- 1 Wasim and Pw-2 Salauddin themselves heard that at the time of incident appellant was demanding money and victim Ummed did not oblige his demand the appellant committed the incident by inflicting the blows of Khukri on the person of the victim. Thus, it is well established that the incident occurred on the issue of demanding of money by the appellant.
50. The P.W.1 Wasim and P.W.-2 Salauddin were the eye witnesses who had seen the entire incident and snatched the Khukari from the accused persons but they had not sustained even minor injuries which also indicates that they had not seen the incident. The accused persons had inflicted as many as six injuries to Shan Mohammad who tried to save the injured Ummed Ali and the P.W.1 Wasim and P.W.2 Salauddin held to the accused appellant (Dhananjay) and snatched Khukri (knife) from his hand but no minor injuries were inflicted upon them in the course of scuffing. It may be a fight on behalf of I.O. who could have gather the blood stained cloths. The fault of I.O. cannot adversely affect the prosecution case. Therefore, the argument of the learned counsel for the appellant is not sustainable.
51. The prosecution witnesses had made improvements in their deposition and had narrated the manner of incident in such a way which cannot be perceived by ordinary course of diligence and prudence. There is no material inconsistency in the post mortem report which proves that the manner in which the occurrence took place would be incorrect.
52. The learned counsel for the appellant has argued that the recovery of Khukri and other incriminating articles from the accused persons is highly untrustworthy and dubious. The same was not sent for chemical examination to FSL. Learned A.G.A. refuted the argument. In this regard it is emphasised that Pw- 1 Wasim and Pw- 2 Salauddin are the eye witnesses of the incident has deposed that Pw-2 Salauddin caught hold of the appellant and snatched the Khukri/ knife. Pw- 1 Wasim further stated that when they snatched the knife they were not injured. They also stated that afterward Khukri was given to the police. Pw- 2 Salauddin has stated that a recovery memo of the same, Ext. Ka- 2, was prepared and it was produced before the court during trial as physical Ext. 8. Both these prosecution witnesses identified the Khukri which was used in the incident. Doctor Pw- 3 Arvind Kumar and Pw- 4 Dr. K.N. Tiwari has categorically stated that the injuries inflicted upon the deceased victim were caused by one sided sharp edged weapon, which may be called knife. Thus, the fact of recovery of the Khukri, the weapon of assault has been identified, at all relevant places in the court or outside. Pw-8 I.O. S.I. Malkhan Singh has stated that to ascertain blood stains Khukri was sent to FSL. His statement is fortified by a letter sent to FSL, Agra, the carban copy of which is on record. However, no FSL report is on record regarding the items sent to FSL Agra but is the fault of I.O. who do not collect the report. Nevertheless, it do not affect the prosecution case adverserly.
53. In Baldeo Singh & Anr vs State Of Punjab, 1996 AIR 372, 1995 SCC (6) 596, Amrik Singh vs State Of Punjab And Others, 2000 CriLJ 4305, State of U.P. vs Harvansh sahay 1996(6) SCC 50, State Of Uttar Pradesh vs Hari Mohan & Ors, 2000 SCC 516, Ram Bali vs State Of Uttar Pradesh, 2004, SCC 2329-C Vol. - 02, Vijay singh vs State of Bihar, 2003 Scc 1093, and Dhananjay singh vs State of Punjab, 2004 SCC cri 851 . The Apex Court in Ram Bali (Supra) referring Paras Yadav and Others Vs. State of Bihar (1999 (2) SCC 126) and Ram Bihari Yadav Vs. State of Bihar 1998 (4) SCC 517 and Amar Singh Vs. Balvindar Singh and Others (2003 (2) SCC 518) held that the lapse or omission is committed by the investigating agency or because negligence there had been defective investigation prosecution evidence is required to be examined de hors such omissions carefully to find out whether the said evidence is reliable or not and to what extent, such lapse affected the object of finding out the truth. The contaminated conduct of officials alone should not stand on the way of evaluating the evidence by the courts in finding out the truth, if the materials on record are otherwise credible and truthful; otherwise the designed mischief at the instance of biased or interested investigator would be perpetuated and justice would be denied to the complainant party, and in the process to the community at large.
54. In Ram Bihari Yadav V. State of Bihar and Ors , 1998 (4) SCC 517) the apex court held that if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice.
55. In Amar Singh V. Balwinder Singh and Ors, (2003 (2) SCC 518), it would have been certainly better if the firearms were sent to the forensic test laboratory for comparison. But the report of the ballistic expert would merely be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eye-witnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the IO cannot affect credibility of the prosecution version.
56. Having regard to the overall facts and circumstances of the case and also from the aforesaid discussions of the evidence on record, there is no manner of doubt about the complicity of the accused appellant (Dhananjay) in inflicting fatal and grave injuries on Ummed and Shan Mohammad which resulted into death of Ummed on the spot and death of Shan Mohammad after some hours. Though the witnesses were cross examined by the defence but no contradiction could be brought so as to discard the version regarding the involvement of the accused appellant in committing ghastly murder of Ummed and Shan Mohammad. The medical evidence adduced by prosecution witness nos. 3l & 4 relating to injuries caused by Khukari stood fully proved. The Khukari was sent to the forensic laboratory. The report was received demonstrating incriminating articles i.e. cover of the Khukari ,blood stained cement and plain cement. Human blood was found on the Khukari and other incriminating articles. In case the investigating officer did not send the Khukri in the forensic science library for analysis and confirmation. The confessional statement made by the accused appellant in the presence of police personnel to the extent of disclosure of facts consistent with the prosecution version is admissible. The prosecution story will not stand demolished for the fault of the investigating officer. The trial court had assessed and analysed the entire prosecution version and defence of the accused appellant on the yardstick of its reliability and trustworthiness and has rightly reached at the conclusion that it is the appellant who in association with co-accused is the real perpetrator of the offence of inflicting fatal and heart rending injuries to Ummed and Shanu who succumbed to injuries. There is clear and categorical evidence to prove the accusations of causing serious injuries with Khukari to Ummed and Shanu. Thus, they cannot escape from the punishment for the offence committed by them. The learned counsel for the appellant has placed reliance on a gamut of dictum of Hon'ble Supreme Court in re Khema alias Khem Chandra vs State Of U.P. criminal appeal no. 1200-1202 of 2022 arising out of SLP (Criminal) NO. 8624 Of 2019 , Anil Phukan vs State of Aasam 1993 Law Suit, (229), Virendra (Supra) State represented by Inspector of Police (Supra) do not have any applicability with the present set of facts and circumstances of the case.
57. Thus, there is no embellishment in the prosecution version. The victims died on account of inflicting of injuries on their person by the accused appellant and the co-accused. The entire incident has been narrated in a very intrinsic and natural way. It is a case of homicidal death. The murder has taken place in day light at the public place in the presence of the witnesses who supported the prosecution version in cross examination and examination in chief. The murder has taken place in Ram Manohar Lohiya park on the trivial issue of demand of money from the side of the accused persons and the refusal by the victims. There is a chain of evidence to demonstrate that Shan Mohammad and Ummed were inflicted serious injuries with Khukari as a result of which Ummed took last breath and Shan Mohammad was seriously and fatally injured. The accused persons were caught on the spot and the Khukri and incriminating materials were recovered from the appellant. In case there is any variation or omission in the examination, cross examination or examination in chief that will not jettison the entire prosecution version and will absolve the guilt. The non-examination of Salim and Arif Chaudhary who were illustrated in the list of charge sheet will not falsify the prosecution version in entirety. From the facts and the circumstances of the case it emanates that the crime has been committed shaking the conscience and heart of public at large in a very brutal and diabolical manner., Multiple injuries were inflicted in the vital part of the victim with an intent to eliminate him. The testimony of the witnesses is trust worthy and reliable. No explanation has been given by the accused appellant as to how and in what manner the victims were inflicted grave and grim injuries in the said park. The story of the teasing and tormenting of girls could also not be established and no body had come forward to prove this version. The evidence by the prosecution witnesses is consistent with the hypothesis of the guild of the accused persons. There is no other hypothesis except the guilt of the accused persons. The mere conviction and sentence as well as incarceration of the accused appellant will not placate the severity and barbarity of offence wherein innocent persons were killed in a barbarous and ruthless manner. The nature of injuries on the person of the victims were heart rending and unbearable shaking the soul and conscience of the persons present in the said park. The learned Sessions Judge has passed the order of conviction and sentence after appreciating the entire evidence on record and has rightly arrived at the conclusion that it was the accused persons alone who committed the serious offence of causing fatal and ghastly injuries to the victims hence the judgment and order passed by the learned Sessions Judge may be sustained.
58. In the light of prolix and verbose discussions made herein above and also regard being had to the entire facts and circumstances of the case, we are of the opinion that the prosecution has proved its allegations beyond reasonable doubts, pointing unerringly guilt of the accused appellant. The trial court has rightly accepted the prosecution evidence holding the appellant guilty. However, looking to the nature of allegations, the materials on record and also manner of executing the crime, it appears that the accused appellant did not have any pre-mediation or pre concerted mind to eliminate Ummed and Shanu (deceased). The incident had occurred abruptly on the heat of passion, hence the accused appellant deserves to be convicted. Therefore, we concur with the findings of trial court.
59. This takes us to the next question whether it was a perpetrated murder or would it fall within any of the exceptions to Section 300 of IPC?
60. It would be relevant to refer to Section 299 of the Indian Penal Code, which reads as under:
"299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
61. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts loose sight of the true scope and meaning of the terms used by the legislature in these sections, and allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be is to keep in focus the keywords used in the various clauses of Section 299 and 300 of I.P.Code. The following comparative table will be helpful in appreciating the points of distinction between the two offences:-
Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done- Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done. INTENTION
(a) with the intention of causing death; or (1) with the intention of causing death; or
(b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;
KNOWLEDGE KNOWLEDGE
(c) with the knowledge that the act is likely to cause death.
(4) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.
62. From the upshot of the aforesaid discussion, it appears that the death caused by the accused was not premeditated, accused though had knowledge and intention that his act would cause bodily harm to the deceased but did not want to do away with the deceased. Hence the instant case falls under the Exceptions 1 and 4 to Section 300 of IPC. While considering Section 299 as reproduced herein above offence committed will fall under Section 304 Part-I as per the observations of the Apex Court in Veeran and others Vs. State of M.P. (2011) 5 SCR 300 which have to be also kept in mind.
63. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we come to the definite conclusion that the death was not premeditated. The precedents discussed by us would permit us to uphold our finding which we conclusively hold that the offence is not punishable under Section 302 of I.P.C. but is culpable homicide not amounting to murder, punishable U/s 304 (Part I) of I.P.C.
64. Now, it is to be seen whether the quantum of sentence is too harsh and requires to be modified. In this regard, we have to analyse the theory of punishment prevailing in India.
65. In Mohd. Giasuddin Vs. State of AP, [AIR 1977 SC 1926], explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:
"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."
66. The term 'Proper Sentence' was explained in Deo Narain Mandal Vs. State of UP [(2004) 7 SCC 257] by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the 'principle of proportionality'. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.
67. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP [(2010) 12 SCC 532], Guru Basavraj vs State of Karnatak, [(2012) 8 SCC 734], Sumer Singh vs Surajbhan Singh, [(2014) 7 SCC 323], State of Punjab vs Bawa Singh, [(2015) 3 SCC 441], and Raj Bala vs State of Haryana, [(2016) 1 SCC 463] and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.
68. Keeping in view the facts and circumstances of the case and also criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.
69. As discussed above, 'reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view the 'doctrine of proportionality'. It appears from perusal of impugned judgment that sentence awarded by learned trial court for life term is very harsh keeping in view the entirety of facts and circumstances of the case and gravity of offence. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system.
70. In view of the above, the accused-appellant is sentenced to 10 years rigorous imprisonment. Fine is reduced to Rs.5000/-. However, the default sentence is maintained. If 10 year's sentence is already over, the accused-appellant be set free forthwith, if not wanted in any other case. He will deposit the fine within four weeks from the date of his release and in case fine is not deposited he will be re-incarcerated to undergo the sentence of default.
71. Resultantly, the appeal is partly allowed to the extent that the appellant be convicted under section 304 Part-I IPC awarding sentence of ten years rigorous imprisonment with fine of Rs, 15,000/ in Session Trial No. 445 of 2007 is maintainable with default sentence which would run after 10th year of incarceration. As appellant is in jail for 15 years, he be set free immediately if not wanted in other offence. The conviction and sentence awarded vide judgement and order dated 22.03.2013 passed by learned Additional Sessions Judge Court No. 1 Ghaziabad in Sessions Trial No. 446 of 2007, under Section 4/25 Arms Act, shall remain intact which is already served.
72. Trail court record be transmitted to the court concerned immediately for necessary action Order Date :- 02.03.2023 Israr