Delhi High Court
Neeraj Alias Nagar vs State (Nct Of Delhi) on 14 November, 2019
Author: Sangita Dhingra Sehgal
Bench: Manmohan, Sangita Dhingra Sehgal
$-R-26 & R-27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 24th September,2019
Judgment pronounced on:14th November,2019
+ CRL.A. 88/2019
NEERAJ Alias NAGAR ..... Appellant
Through: Mr. Sunil Upadhyay, Advocate.
Versus
STATE NCT OF DELHI ..... Respondent
Through: Ms.Aashaa Tiwari, APP for the State with
Insp. Shishu Pal, PS Neb Sarai.
AND
+ CRL.A. 700/2019
STATE ..... Appellant
Through: Ms.Aashaa Tiwari, APP for the State with
Insp. Shishu Pal, PS Neb Sarai.
versus
NEERAJ Alias NAGAR & ORS. ..... Respondent
Through: Mr. Sunil Upadhyay, Advocate for
respondents No.1 and 2. Mr. Ravi Ranjan,
Advocate for respondent No.4.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL,J
1. Vide this common order, we shall dispose of the CRL. Appeal Nos.
88/2019 and 700/2019 arising out of common judgment dated
26.05.2018 and order on sentence dated 07.06.2018 passed by the
Additional Sessions Judge-02, South District, Saket Courts, Delhi
CRL.A. 88/2019 & CRL.A 700/2019 Page 1 of 41
wherein the accused persons were acquitted for the offences punishable
under Sections 302/307/34 of the Indian Penal Code, 1860 (hereinafter
referred to as 'IPC') and were convicted for the offence punishable under
Section 326/34 IPC and were sentenced to undergo Rigorous
Imprisonment for a period of eight years with a fine of Rs.5,000/, in
default to undergo simple imprisonment for three months. We may also
add that as per the report received from the Superintendent, Central Jail
No. 1, Tihar, New Delhi and as per order dated 14.03.2019 of this court,
one of the co-convicts, namely Vishal (respondent no.3 in Crl.A.
700/2019) had expired on 07.09.2018, at DDU Hospital during the
pendency of the aforesaid appeals.
2. The brief facts of the case, as mentioned by the learned Trial Court are
reproduced as under:-
"1. Prosecution story as per charge sheet in brief is that
on receiving the intimation regarding stab injury on
07.09.2012, SI Surender Singh alongwith Ct. Anil went to
spot i.e. A-134, JJ Colony, Tigdi where they found blood
scattered outside the house and injured shifted to Max
hospital. SI Surender at Max hospital found one Jagat
Singh brought dead and his wife Prakasho Devi unfit for
statement. Injured Kamla Devi is admitted at AIIMS
trauma centre also found unfit for statement. Doctors
handed over blood stained clothes of injured, thereafter at
spot SI Surender Singh recorded statement of eye witness
Barkha who alleged that she studies in 11th class and
accused Nagar @ Neeraj used to tease her while on the
way to school or tuition, and today at 5.30 pm when she
was going with her friend Mohsin for tuition, accused
Nagar alongwith his friend Sanjay, Irfan and Sandeep
quarreled with Mohsin and also threatened him to leave
her company, thereafter when she resisted then after
threatening left the place. She further alleged that at
around 6.30 pm when she was sitting with her mother in
CRL.A. 88/2019 & CRL.A 700/2019 Page 2 of 41
front of her house, all these four accused came with danda,
knives and after abusing started attacking her mother with
knives and dandas and on hearing shouts, Jagat Singh and
Prakasho Devi residing in the neighborhood came, and
thereafter they also inflicted knife and danda injuries over
them. Pursuant to her statement, FIR was registered.
2. During investigation, site plan was prepared, crime team
was called, exhibits were lifted. The postmortem of
deceased Jagat Singh was conducted. Statement of Jai Lal
brother of the deceased was also recorded who alleged he
had seen the accused persons running away after the
incident and at that time, accused Vishal was carrying
knife.
3. On 09.09.2012 at around 2 pm, a secret information was
received, consequent to which raiding party was prepared
and accused Neeraj @ Nagar, Irfan @ Lucky, Vishal,
Sandeep @ Sindhi and one JCL Sanjay was apprehended.
Thereafter, police recorded the disclosure statement of
accused persons. Accused Neeraj stated that he wants to
have friendship with Barkha, However she used to talk to
Mohsin, thus he told Barkha number of times not to do the
same but despite they used to meet, thereafter on
07.09.2012 Mohsin came with some boys to beat him, and
thereafter he alongwith his associates Vishal, Irfan@
Lucky, Sandeep, Sanjay decided to take revenge.
Thereafter, Vishal brought one buttondar knife for him,
then they went to house of Barkha for knowing the address
of Mohsin where mother of Barkha started abusing them,
then Irfan and Sandeep hit her mother with danda and he
inflicted knife injuries on her mother, in the meanwhile one
lady and gent came and tried to catch him, Irfan and
Sandeep then Sanjay managed to released them thereafter
he inflicted knife injuries on the said lady and gent. Vishal
at that time was doing reiki outside and while running he
had handed over knife to Vishal and thereafter, Irfan and
Sandeep thrown the dandas after some distance. The other
accused also disclosed on same lines.
4. During investigation at the instance of accused Irfan @
Lucky and Sandeep @ Sindhi dandas were recovered and
at the instance of accused Vishal one blood stained knife
was recovered. Accused Vishal refused to participate in
CRL.A. 88/2019 & CRL.A 700/2019 Page 3 of 41
TIP. As per opinion of the doctor, injured Prakasho Devi
suffered grievous injury and deceased Jagat Singh died of
shock due to hemorrhage caused by the stab injuries
suffered. Injured Kamala Devi also found to have suffered
grievous injuries.
5. Police during investigation recorded the statement of
injured Kamla, Prakasho Devi on 15.09.2012. Injured
Kamla in her statement u/s 161 Cr.P.C stated that she knew
the accused Neeraj @ Nagar prior to the incident, and he
used to harass her daughter on the way to tuition, and on
07.09.2012 her daughter told in the evening that when she
was going with Mohsin, accused Neeraj @ Nagar
alongwith his three friends Sanjay, Lucky and Vicky made
quarrel with them thereafter accused Neeraj @ Nagar
came with his three friends having knife in his hand and
others two having dandas started abusing them, and then
Neeraj inflicted knife injuries and other hit her with
dandas, and shouting one Prakasho Devi and Jagat Singh
neighborhood came and when she went towards them to
save herself, they also inflicted knife and danda injuries
over them, thereafter she also got unconscious and got
discharged from the hospital on 10.09.2012.
6. Prakasho Devi in her statement u/s 161 Cr.P.C also
stated that at around 6.30pm, she heard the shouts of
injured Kamla Devi and saw her running towards her and
behind her Nagar, Lucky, Sindhi and Sanjay who she know
prior to incident came with knife and dandas, and when her
husband tried to save her then they inflicted injuries over
them, thereafter she got unconscious. On completion of
investigation, charge-sheet was filed.
7. On committal, vide order dated 13.12.2012, charges u/s
302/307/34 IPC were framed against all the accused
persons to which they pleaded not guilty and claimed
trial."
3. In order to bring home the guilt of the accused persons, the prosecution
has examined 35 witnesses in all. The incriminating evidence and
circumstances were put to the accused persons under Section 313 of Code
CRL.A. 88/2019 & CRL.A 700/2019 Page 4 of 41
of Criminal Procedure wherein they pleaded to have been falsely
implicated in the present case and claimed their innocence. The accused
persons chose not to lead any evidence in their defence.
4. After appreciating and considering the rival contentions of the parties
and scrutinizing the evidence, the learned Trial Court held that the
prosecution had miserably failed to prove the charges under Section
302/307/34 IPC against the accused persons and thereby acquitted them
for the same but found the accused persons guilty for the offence
punishable under Section 326/34 IPC.
5. Aggrieved by the impugned judgment, Ms. Aashaa Tiwari, learned APP
for the state argued that the impugned judgment passed by the Trial
Court was perfunctory in nature, full of conjectures and surmises and
therefore was liable to be set aside. She further contended that the
impugned judgment was a case of legal defects resulting in the acquittal
of the accused persons under Section 302/307 IPC and a grave failure of
justice.
6. Learned APP for the State labored hard to contend that the present case
is a fit case for punishment under Section 302/307/34 IPC, placing
reliance on the MLC of the deceased (Ex. PW-2/A) and the postmortem
report (Ex.PW-24/A). She further emphasized that the learned trial court
erred in convicting the accused persons only for the offence punishable
under Section 326/34 IPC, ignoring the fact that the deceased(Jagat
Singh) had lost his life in the alleged incident and that the other two
victims PW-8 (Smt. Kamla Devi) and PW-13 (Smt. Prakashoo Devi)
suffered grievous injuries which were dangerous enough to cause death.
CRL.A. 88/2019 & CRL.A 700/2019 Page 5 of 41
7. Ms. Tiwari further contended that the testimonies of PW-1 (Kumari
Barkha), PW-8 (Smt. Kamla Devi) and PW-13 (Smt. Prakashoo Devi)
are consistent and trustworthy and the minor contradictions and
discrepancies in the testimonies do not go to the root of the matter. It is
a settled proposition of law that even if there are some omissions,
contradictions and discrepancies in the testimonies of the witnesses, the
entire evidence cannot be completely disregarded. To substantiate her
arguments learned APP for State relied upon the case of Ashish Kali @
Amar Vs. State reported in 2018(1) JCC 67.
8. Learned APP for the State further contended that the prosecution has
relied upon recovery of knife & Dandas which were recovered on the
pointing out of the accused persons in the presence of PW-33, (Insp.
Jarnail Singh), PW-32 (SI Manmeet) PW-20 (SI Rakesh Kumar) and
PW-32 (Insp. Parasnath Verma). She further emphasized that there is
no cogent reason to disbelieve the aforementioned recovery on the
ground that the same was not supported with the presence of an
independent witness.
9. She submitted that the weapon of offence (knife) was sent to forensic
science laboratory for analysis wherein it was opined that human blood
was detected on the weapon of offence and the fact that the same could
not be linked with the blood of the deceased is of no significance and is
not always fatal to the case of the prosecution. To substantiate her
arguments learned APP for the State relied upon the case of Khujji @
Surendra Tiwari V. State of Madhya Pradesh reported at AIR 1991 SC
1853 and State (Govt of NCT of Delhi) vs Sunil reported in (2001) 1
SCC 652.
CRL.A. 88/2019 & CRL.A 700/2019 Page 6 of 41
10. Lastly, the learned APP for State contended that, it is amply clear that
the ocular evidence and the medical evidence is eloquent and self-
explicit, connects the accused persons with the crime, considering the
impugned order, the accused persons should also be convicted under
Section 302/307 IPC.
11. Per contra, Mr. Sunil Upadhyay, learned counsel appearing on behalf of
Neeraj @ Nagar and Irfan Siddiqui at the outset contended that the
learned Trial Court while acquitting both the accused persons under
Section 302/307 read with Section 34 IPC had held that the prosecution
had failed to establish its case as the evidence produced by the
prosecution was neither qualitative nor credible and the entire story of
the prosecution deserved to be rejected.
12. Learned counsel further argued that the recovery of knife and Dandas
were planted and could not have been relied upon, more so, when there
was no material on record to connect the injuries suffered by the victim
from the recovered weapon of offence. He further contended that the
Medical Evidence as well as the Forensic Science Laboratory Report
had nullified the entire case of the prosecution and the conviction and
sentence awarded to Neeraj @ Nagar and Irfan Siddiqui under Section
326/34 IPC was liable to be set aside.
13. Mr. Ravi Ranjan, learned counsel appearing on behalf of Sandeep @
Sindhi adopted the arguments addressed by the learned counsel for
Neeraj @ Nagar and Irfan Siddiqui. Learned counsel further submitted
that the learned Trial Court after scrutinizing the evidence on record
rightly acquitted Sandeep @ Sindhi under Section 302/307/34 IPC,
hence the same did not warrant any interference by this Court.
CRL.A. 88/2019 & CRL.A 700/2019 Page 7 of 41
14. We have heard the learned counsel appearing on behalf of the parties
and have perused the material on record.
Testimony of Material witnesses
15. In order to deal with the contentions of both the parties, it would be
appropriate to examine the testimonies of material witnesses of the
prosecution, more particularly the testimonies of PW-1 (Kumari
Barkha), PW-8 (Kamla Devi), PW-10 (Mohsin) and PW-13 (Smt.
Prakasho Devi), who have witnessed the alleged incident.
16. Kumari Barkha, stepped into the witness box as PW-1 and deposed that:
"On 07.09.2012, at about 05.30 pm I along with my friend
Mohsin was going to aforesaid coaching centre for tuition.
When we reached at a some distance ahead of State Bank
of Tigri Branch, accused Neeraj along with his three
associates came to us. One associate of accused Neeraj
caught hold my friend Mohsin by neck and other his two
associates gave fist blows to Mohsin and threatened my
friend Mohsin not to join my company in future. I raised
alarm to leave Mohsin. After causing injury to my friend
Mohsin all four aforesaid persons ran away from the
spot. The witness correctly identified the accused Neeraj
@ Nagar. Witness put finger on accused Vishal present in
the court saying that he is the same person who had
caught hold neck of Mohsin. Witness again put her finger
towards accused Irfan present in the court and accused
Sandeep @ Sidhu saying that they are same person who
had given fist blows to my friend Mohsin. I and my injured
friend Mohsin returned back to our houses. All the accused
persons present in the court are the resident of Tigri
Colony and all three were known to me by faces prior to
date of incident and one accused Neeraj @ Nagar was
known to me by name also.
On that date at about 06.30 pm I was sitting on cot
alongwith my mother Kamla Devi in gali in front of my
house. All four accused persons present in the court came
to us at that time accused Vishal was having Knife and
CRL.A. 88/2019 & CRL.A 700/2019 Page 8 of 41
remaining three were having dandas in their hands. On
seeing the accused persons my mother stand up from the
cot and immediately accused Neeraj, Irfan and Sandeep
over powered my mother Ms. Kamla Devi when my mother
started shouting. Immediately accused Vishal stabbed her
and caused injuries on her belly. In the meantime, my
aunty Smt. Prakasho (sic.) Devi resident in our galli also
came to us to save my mother. Immediately accused Vishal
caught hold the aunty and also caused injury on her belly.
Sh. Jagat Singh husband of injured Smt. Prakasho (sic.)
Devi also came to us and he tried to give danda blow on
accused Vishal. Accused Vishal stabbed to Sh. Jagat
Singh with the same knife and caused three stabbed
injury on his belly. All three aforesaid injured persons fell
down in the street on sustaining injuries caused by the
accused persons. Blood had also fallen at the spot. Three
accused persons had ran away from the spot with their
respective weapons towards main road while accused
Vishal had ran away with his weapon towards gali."
17. Mohsin, stepped into the witness box as PW-10 and deposed that:
"I do not remember the date, however the same pertains to
the month of November last year. At about 5.30 P.M., I
along with my friend Kumari Barkha were going to
tuition near Sai Baba Mandir. When we reached near
State Bank, at that time we were stopped by one boy and
he demanded my wrist watch (witness put finger towards
the accused Neeraj standing in the Court by saying that he
is same person who demanded wrist watch from me).
Neeraj gave beatings to me. I fell down on the road and
thereafter he left. I informed the incident to my maternal
uncle Niyaz Khan. I was going to my house, in the way my
maternal uncle met me near Arpan Hospital and he took
me to the house and he made call 100 (sic.) number
informing about the incident."
CRL.A. 88/2019 & CRL.A 700/2019 Page 9 of 41
18. Kamla Devi, stepped into the witness box as PW-8 and deposed that:
"We returned to our house and I again sat on the same cot
near the gate of our house and my daughter Barkha was
also sitting near me on the cot. In the meantime, four boys
came, I know only one namely Neeraj (witness correctly
identified the accused Neeraj present in the court).
Remaining three accused persons were identified by the
witness by their faces, who are present in court today.
Witness identified them before court. At that time, two
associates of Neeraj were having dandas in their hands.
Accused Neeraj hit danda on my head. As and when I
tried to save myself, one associate of Neeraj stabbed on
my belly, but I could not see him. Blood and intestines
came out from the my stab injury. I fell down on road/gali.
My daughter Barkha raised alarm. I had also raised alarm
when I was stabbed. Barkha made call to police about
incident by using my phone. I cannot tell its connection
number. I am not aware, by whom I was taken to hospital.
Next day, I regained my consciousness in Trauma Centre,
AIIMS. I remained admitted there for three days for
treatment. I further remained under treatment for a long
period as I had been operated there. Smt. Prakasho Devi
and her husband Sh. Jagat Singh had also sustained stab
injuries. Jagat Singh expired in this incident due to stab
injury. Prakasho Devi and Jagat Singh are the residents
of house, which is located in front of my house. They had
come on hearing the noise raised by me and my daughter in
the gali."
19. Smt. Prakasho Devi stepped into the witness box as PW-13 and deposed
that:
"On the day of incident at about 06:30 PM, I was cooking
roti in the kitchen of my house. I heard a noise of "bachao-
bachao" from the gali. I came out of the house and
noticed that 3-4 boys were quarrelling with Smt. Kamla. I
asked them "kya kar rahe ho, kya kar rahe ho".
Immediately they rushed towards me and one of them
stabbed me with knife and cause injury on the left side of
my belly and I became unconscious on seeing the blood
CRL.A. 88/2019 & CRL.A 700/2019 Page 10 of 41
oozing out from my injury. I cannot say by whom the injury
was caused to my husband as a result of which he scummed
in the hospital."
20. From a conjoint reading of the aforesaid testimonies of the prosecution
witnesses, it is evidently established that the accused persons were
actively involved in the commission of the alleged offence and had
given knife and danda blows to the deceased Jagat Singh, PW-8 (Kamla
Devi) and PW-13 (Smt. Prakasho Devi). Further it is relevant to
highlight that the first incident had occurred at 05:30 pm, wherein the
accused persons had wrongfully restrained (PW-1) Kumari Barkha and
had robbed and knocked down (PW-10) Mohsin.
21. Thereafter, at about 06:30 pm all the accused persons arrived in the gali
in front of the house of PW-1(Kumari Barkha), wherein accused Vishal
was having a Knife in his hand and remaining three accused persons
(Neeraj @ Nagar, Irfan Siddiqui and Sachin @ Sindhi) were having
dandas in their hands. Perusal of the aforesaid testimonies also reveal
that accused Vishal had given knife blows to the deceased Jagat Singh,
(PW-8) Kamla Devi and (PW-13) Smt. Prakasho Devi which were
grievous in nature as well as dangerous enough to cause death and in
furtherance of their common intention, accused persons(Neeraj @
Nagar, Irfan Siddiqui and Sachin @ Sindhi) had subjugated the
aforesaid prosecution witnesses.
22. It is well settled in law that minor discrepancies are not to be given
undue emphasis and the evidence is to be considered from the point of
view of trustworthiness. The Hon'ble Supreme Court of India in the
CRL.A. 88/2019 & CRL.A 700/2019 Page 11 of 41
case of Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Anr.,
reported at (2013) 12 SCC 796, has held as under:
"28. As is evincible, the High Court has also taken note of
certain omissions and discrepancies treating them to be
material omissions and irreconcilable discrepancies. It is
well settled in law that the minor discrepancies are not to
be given undue emphasis and the evidence is to be
considered from the point of view of trustworthiness. The
test is whether the same inspires confidence in the mind of
the court. If the evidence is incredible and cannot be
accepted by the test of prudence, then it may create a dent
in the prosecution version. If an omission or discrepancy
goes to the root of the matter and ushers in incongruities,
the defense can take advantage of such inconsistencies.
The omission should create a serious doubt about the
truthfulness or creditworthiness of a witness. It is only the
serious contradictions and omissions which materially
affect the case of the prosecution but not every
contradiction or omission (See Leela Ram vs. State of
Haryana and another, Rammi alias Rameshwar v. State of
M.P. and Shyamal Ghosh v. State of West Bengal)"
23. In the present case nothing has been brought on record to prove that the
evidence of the prosecution witnesses cannot be believed and relied
upon or they have falsely implicated the accused persons due to some
personal vengeance at the instance of the prosecution. In all criminal
cases, minor discrepancies are bound to occur in the depositions of the
witnesses due to common errors in observations, namely, error of
memory due to lapse of time or due to mental disposition such as shock
and horror at the time of the incident. Hence, the argument with regard
to the contradictions in the testimonies of material prosecution witnesses
holds no ground.
CRL.A. 88/2019 & CRL.A 700/2019 Page 12 of 41
Medical & Scientific Evidence
24. At this stage, it is relevant to examine whether the medical evidence
adduced by the prosecution finds support from the testimonies of the
prosecution witnesses. Dr. Adarsh Kumar (PW-24) AIIMS Hospital,
New Delhi appeared on behalf of Dr. Kartik Krishna who had
conducted the post-mortem of the deceased and proved the post mortem
report as Ex.PW24/A wherein the doctor opined that "the injuries were
ante mortem in nature and death in the present case was caused due to
hemorrhage by the injuries as mentioned". The relevant portion of his
statement recorded is reproduced below:
"I am posted as Additional Professor, forensic Medicine
in AIIMS hospital since 2005 and also working as a In-
charge of Medico-legal record in AIIMS hospital. During
the course of my official duties number of doctors have
been posted in AIIMS hospital in department of forensic
medicine who had worked with me and under my
supervision and I have seen them writing and signing,
therefore, I am well acquainted with the writing and
signature of number of doctors. I have seen post-mortem
report of deceased Jagat Singh vide PM report no.
1221/12 dated 08.09.2012 prepared by Dr. Karthik
Krishna which is Ex.PW24/A and bears his signature at
point A. As per the PM report the injuries found were as
under:
(1) A stab wound, spindle shaped measuring 3x1cm, with
clean-cut margins is present vertically placed on the
midline of abdomen, 104 cms above the left heel and 21
cms below the suprasternal notch. The direction of the
wound is upwards and laterally cutting the skin,
superficial and deep fascia, muscles, peritoneum and
penetrating into the liver parenchyma. The stab wound
on the liver is measuring 3x1x5 cm and is present on the
left lobe of liver associated with hematoma. The track of
the wound is bloodstained.
CRL.A. 88/2019 & CRL.A 700/2019 Page 13 of 41
(2) A stab wound, spindle shaped measuring 3x1cm, with
clean-cut margins is present obliquely placed on the
abdomen, 85 cms above the left heel, 40 cms below the
suprasternal notch and 1 cm right to midline. The
direction of the wound is upwards, backwards and
medially cutting the skin, superficial and deep fascia,
muscles, peritoneum, perforating the mesentery of small
intestine. The track of the wound is bloodstained.
As per report on internal examination 500 ml of blood
was found in pleural cavities and 2.5 liters of blood in
peritoneal cavity. All the organs were pale in appearance.
The injuries were antemortem in nature and death in the
present case was shock due to hemorrhage by the
injuries as mentioned. Injury no. 1 and injury no. 2 were
individually sufficient to cause death in ordinary course
of nature.
Blood sample and the clothes of the deceased were
preserved and handed over to the police.
I have seen MLC of Mrs.Prakasho Devi w/o of Jagat
Singh, female aged 55 years vide MLC no. 94990 dated
15.09.2012 which has been prepared by Dr. Karthik
Krishna. The MLC is Ex.PW24/B bears his signature at
point A.
The blood sample in gauze was collected and preserved
after taking consent of the patient which was handed over
to the police.
I have seen subsequent opinion regarding weapon of
offence used in the crime. As per report the IO had
submitted a sealed parcel containing knife and another
parcel containing clothes of the deceased on 13.03.2013.
Dr. Karthik Krishna prepared sketch of the knife which is
Ex.PW24/C and then gave his opinion dated 20.03.2013
which is Ex.PW24/D that injury no. 1 and injury no. 2
mentioned on post-mortem Ex.PW24/A could be caused
by weapon of which sketch is Ex.PW24/C and that cut
marks on the clothes submitted could be caused by the
same weapon i.e. sketch Ex.PW24/C.
I had also seen subsequent opinion vide no. TC55/13
dated 04.04.2013 in reference of MLC no. 328504/12
dated 08.09.2012 of Kamla Devi, female aged 45 years
w/o Puran Singh which is prepared by Dr. Sanjay Kumar-
CRL.A. 88/2019 & CRL.A 700/2019 Page 14 of 41
II. As per subsequent opinion the IO had submitted MLC
as well as other relevant documents and sealed parcel
containing knife and another sealed parcel containing
clothes of injured namely Kamla Devi. Dr. Sanjay Kumar
prepared the sketch of the knife which is Ex.PW24/E
which bears his signature at point A and his subsequent
opinion is Ex.PW24/F which bears his signature at point
A. As per his opinion possibility of injury mentioned in
MLC of Kamla Devi being caused by examined knife
cannot be ruled out and possibility of cut marks on
ladies skirt being caused by examined knife cannot be
ruled out. The subsequent opinion of Dr. Karthik Krishna
was forwarded by Dr. Sudhir Kumar Gupta."
25. Perusal of the aforesaid testimony also reveals that the Investigating
Officer had forwarded a sealed parcel containing the weapon of offence
(knife) and the clothes of the deceased for an expert opinion on whether
the injuries on the deceased could have been caused by said weapon.
Relevant portion of the 'Opinion regarding the weapon of offence'
(Ex.PW24/D) is reproduced herein below:-
"1. Injury no.1 and injury no. 2 mentioned in the
postmortem report could be caused by the weapon
submitted
2. the cut marks on the clothes submitted could be caused
by this weapon."
26. Further a subsequent opinion was given by Dr. Sanjay Kumar as the
Investigating Officer had forwarded a sealed parcel containing the
weapon of offence (knife) and the MLC no. 328504/12 of Kamla Devi.
Relevant portion of the 'Subsequent Opinion regarding the weapon of
offence' (Ex.PW24/F) is reproduced herein below:-
:1. Possibility of the injury(mentioned in the MLC of
Kamla Devi) being caused by the examined knife
cannot be ruled out.
CRL.A. 88/2019 & CRL.A 700/2019 Page 15 of 41
2. Possibility of the cut marks(as mentioned above) in
the examined ladies skirts being caused by the
examined knife cannot be ruled out."
27. Joint Perusal of the aforesaid 'Opinion regarding the weapon of offence'
reveals that the injuries on the body of deceased and the injuries as
mentioned in the MLC of Kamla Devi could have been inflicted by the
alleged weapon of offence (knife). Further it is relevant to highlight that
the alleged weapon of offence (knife) was sent to forensic science
laboratory for analysis wherein it was opined that blood was detected on
exhibit '7' (one knife made up of metallic blade and wooden and
metallic handle described as 'Blood stained knife). Relevant portion of
FSL.2012/B-7020 is reproduced below:
RESULTS OF ANALYSIS
1. Blood was detected on exhibits '1a', '1b', '2a', 2b', '2c',
'3a', '3b', '3c', '4', '5', '6', '7', '8' & '9'.
2. Report of serological analysis in original is attached
herewith
.
28. Relevant portion of Serological report (Ex.PW33/E) reads as under:-
Exhibits Species of Origin ABO Grouping/Remarks
'1a' Banyan No reaction ---
'1b' Underwear No reaction ---
'2a' Ladies shirt Human No reaction
'2b' Ladies salwar Human 'AB' Group
'2c' Chunni Human No reaction
'3a' Ladies shirt Human No reaction
'3b' Ladies salwar Human No reaction
'3c' Ladies chunni Human No reaction
'4' Cotton wool swab Human No reaction
'5' Cotton wool swab Human No reaction
'6' Blood stained Human 'A' group
gauze cloth
piece
CRL.A. 88/2019 & CRL.A 700/2019 Page 16 of 41
'7' Knife Human No reaction
'8' Gauze cloth piece Human 'AB' group
'9' Blood stained Human 'A' group
gauze piece
29. Consequently, from the perusal of the FSL Report, it is evident that the
stains found on the weapon of offence were of human blood, however,
the serological report did not provide a conclusive finding, on whether
the blood stains were of the deceased.
30. The Hon'ble Apex Court in the case of R. Shaji v. State of Kerala
reported in (2013) 14 SCC 266 has held that the absence of
determination of blood group on the weapon of offence is of no
significance and is not always fatal to the case of the prosecution.
Germane portion of the Judgment is extracted below:
"31. A failure by the serologist to detect the origin of the
blood due to disintegration of the serum does not mean
that the blood stuck on the axe could not have been
human blood at all. Sometimes it is possible, either
because the stain is insufficient in itself, or due to
hematological changes and plasmatic coagulation, that
a serologist may fail to detect the origin of the blood in
question. However, in such a case, unless the doubt is of
a reasonable dimension which a judicially conscientious
mind may entertain with some objectivity, no benefit can
be claimed by the accused in this regard. Once the
recovery is made in pursuance of a disclosure statement
made by the accused, the matching or non-matching of
blood group(s) loses significance."
(emphasis supplied)
CRL.A. 88/2019 & CRL.A 700/2019 Page 17 of 41
31. The aforesaid judgment was followed by the Hon'ble Apex Court in a
very recent case of Balwan Singh vs. The State of Chhattisgarh and
Anr reported in (2019) 7 SCC 781. The relevant para is reproduced as
under:
"12. The cases discussed above highlight the burden that
the prosecution would ordinarily have to discharge,
depending on the other facts and circumstances of the
case, for the evidence relating to recovery to be
considered against the accused. At the same time, as
mentioned above, we are conscious of the fact that it
may not always be possible to inextricably link the
bloodstains on the items seized in recovery to the blood
of the deceased, due to the possibility of disintegration of
bloodstains on account of the time-lapse in carrying out
the recovery. For this reason, in Prabhu Dayal v. State of
Rajasthan, (2018) 8 SCC 127, where one of us (Mohan
M. Shantanagoudar J.) had the occasion to author the
judgment, this Court, relying on Teja Ram (supra), had
held that the failure to determine the blood group of the
bloodstains collected from the scene of offence would
not prove fatal to the case of the prosecution. In Prabhu
Dayal case (supra), although the FSL report could not
determine the blood group of the bloodstains on account
of disintegration, the report clearly disclosed that the
bloodstains were of human origin, and the chain of
circumstantial evidence was completed by the testimonies
of the other witnesses as well as the reports submitted by
the Ballistic Expert and the Forensic Science Laboratory
regarding the weapon used to commit murder.
13. From the aforementioned discussion, we can
summarise that if the recovery of bloodstained articles is
proved beyond reasonable doubt by the prosecution, and
if the investigation was not found to be tainted, then it
may be sufficient if the prosecution shows that the blood
found on the articles is of human origin though, even
though the blood group is not proved because of
disintegration of blood. The Court will have to come to
the conclusion based on the facts and circumstances of
CRL.A. 88/2019 & CRL.A 700/2019 Page 18 of 41
each case, and there cannot be any fixed formula that
the prosecution has to prove, or need not prove, that the
blood groups match."
(emphasis supplied)
32. In view of the ratio of the judgments cited above, as well as on the basis
of material available on record, it is established, that the doctors who
had conducted the postmortem of the deceased and the FSL report in the
present case, corroborate the version of prosecution and thus the
prosecution has discharged its onus to prove the fact that the alleged
weapon of offence (knife) was used to kill the deceased Jagat Singh.
Recovery of weapon of offence
33. Further during the course of arguments an apprehension was expressed
that the recovery of knife and dandas pursuant to the disclosure
statement of the accused persons is not admissible in the eyes of law and
the same was planted in order to falsely implicate the accused persons.
34. It is apparent from the record that pursuant to the disclosure statement
of accused persons and subsequent pointing out, the alleged weapons of
the offence (knife and Danda) were recovered. According to Section 25
of the Indian Evidence Act 1860, no credence can be placed upon the
confession made by the accused, which reads as under:
"25. Confession to police officer not to be proved
No confession made to a police officer shall be proved
as against a person accused of any offence."
35. However, Section 27 of the Indian Evidence Act is in the nature of a
proviso or an exception which partially lifts the prohibition imposed by
Section 25 and reads as under:
"Section 27 of the Indian Evidence Act:
27. How much of information received from accused
may be proved.--Provided that, when any fact is
CRL.A. 88/2019 & CRL.A 700/2019 Page 19 of 41
deposed to as discovered in consequence of information
received from a person accused of any offence, in the
custody of a police officer, so much of such information,
whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be
proved."
36. In the light of Section 27 of the Indian Evidence Act, 1872 whatever
information is given by the accused in consequence of which a fact is
discovered then only the fact so recovered would be admissible in the
evidence, regardless whether such information amounts to a confession
or not. The basic idea embedded under Section 27 of the Evidence Act
is the doctrine of confirmation by subsequent events. The doctrine is
founded on the principle that if any fact is discovered in a search made
on the strength of any information obtained from an accused; such a
discovery is true and admissible. The information might be
confessional or non-inculpatory in nature, but if it results in discovery
of a fact it becomes reliable information.
37. In view of the law discussed above, it is clear, Section 27 of the Indian
Evidence Act, 1872 is applicable, if a confessional statement leads to
discovery of some new facts. It is further not in dispute that a fact
discovered on information furnished by an accused in his disclosure
statement is a relevant fact and is admissible in evidence if something
new is discovered or recovered from the accused which was not within
the knowledge of the police before recording the disclosure statement of
the accused (Ref: Kamal Kishore Vs. State (Delhi Administration),
(1997) 2 Crimes 169 (Del).
CRL.A. 88/2019 & CRL.A 700/2019 Page 20 of 41
38. From the perusal of the record, we find that the prosecution in the
present case has relied upon the recovery of the knife and danda at the
instance of accused persons. The version of the prosecution is
corroborated by the testimony of police witnesses, PW-33, (Insp Jarnail
Singh), PW-32 (SI Manmeet) PW-20 (SI Rakesh Kumar) and PW-31
(Insp. Parasnath Verma).
39. Insp Jarnail Singh stepped into the witness box as PW-33 and deposed
that:
"then I interrogated all the accused and recorded their
disclosure statement which are already Ex.PW28/A to C
respective which bears my signature at point C and that
of accused persons at point X. The above respective
arrest memos and personal search memos also bears my
signature at point C and signature of respective accused
persons at point X. I had muffled accused Vishal after
his arrest in the present case and thereafter, all the
above named accused as well as JCL were got joined in
investigation further and they have pointed out the scene
of crime. I prepared pointing out memo to this effect
which is already Ex.PW20/K bears my signature at point
D and that of all the accused Neeraj, Vishal, Sandeep
and Irfan at point X. JCL Sanjay had also pointed out
the scene of crime and SI Rakesh had prepared separate
pointing out memo. Thereafter, firstly accused Irfan got
recovered a danda from a small park at the corner
Tigri colony, MB Road which I converted into a
pulanda, affixed by seal JS and took into possession
vide memo Ex.PW20/N bears my signature at point B
and that of accused Irfan at point X. Then accused
Sandeep also got recovered one danda from a different
place in the same park which I converted into a cloth
parcel sealed with my seal of JS and took into
possession vide memo Ex.PW20/M bears my signature
at point B and that of accused Sandeep at point X.
Thereafter, I directed my team members to return back
to PS and take accused Neeraj @ Nagar, Sandeep and
CRL.A. 88/2019 & CRL.A 700/2019 Page 21 of 41
Irfan as well as JCL to PS. I further got joined accused
Vishal in investigation who took the police party
consisting of myself alongwith SI Manmeet and
accused Vishal to transformer near Saket Court and
thereafter he got recovered used in the crime
underneath a piece of stone near transformer near the
wall of nallah near Saket Courts towards the side of
Select City Mall and the same was found having blood
stains. I prepared sketch of the knife which is already
Ex.PW32/A bears my signature at point B and that of
accused at point X. Then I converted the same into a
pulanda, sealed with the seal of JS and took into police
possession vide memo already Ex.PW32/B bears my
signature at point B and that of accused at point X."
40. SI Manmeet stepped into the witness box as PW-32 and deposed that:
"All the accused were got joined in investigation who
firstly took the police party to the scene of crime and
pointed out the place of incident. IO prepared pointing
out memo to this effect which is already Ex.PW20/K. The
accused persons were further got joined in investigation.
Thereafter, the accused Irfan and Sandeep took the
police party to the park at the junction of MB Road,
and Tigri Road and they got recovered two dandas, one
danda by each accused, which were used in the crime.
Both the dandas were converted into cloth parcel
sealed with the seal of JS and taken into police
possession vide memo Ex.PW20/L & M. Memo
Ex.PW20/L bears my signature at point B. Thereafter,
the I alongwith IO and accused Vishal went for further
investigation while Inspt. Parasnath along with SI
Rakesh, HC Dalbir and other staff took accused Neeraj,
Irfan and Sandeep as well as JCL to PS. Thereafter,
accused Vishal took the police party to near
Transformer opposite Saket Court and thereafter, he
had pointed a place behind Transformer, he removed
some stones and got recovered a knife stained with
blood. IO prepared sketch of the knife which is
Ex.PW32/A bears my signature at point A and
thereafter, the same was converted into a cloth parcel
sealed with the seal of JS and was taken into police
CRL.A. 88/2019 & CRL.A 700/2019 Page 22 of 41
possession vide memo Ex.PW32/B bears my signature at
point A."
41. SI Rakesh Kumar stepped into the witness box as PW-20 and deposed
that:
"Pursuant to the disclosure of the accused persons, the
IO had prepared the pointing out memo of the place of
the occurrence at their instance. The pointing out memo
is Ex.PW20/K, which bears my signature at point A.
Pursuant to the disclosure statements, accused
Sandeep and Irfan had got recovered dandas from a
park at Tigri. The said dandas were stated to have been
used in the commission of the offence. The IO had
seized one danda at the instance of accused Irfan vide
seizure memo Ex.PW20/L. The seizure memo of other
danda is Ex.PW20/M. Both the said seizure memos bear
my signatures at point a. Both the dandas were
measured by the IO, but I do not remember their length.
The long danda was recovered at the instance of
accused Sandeep and the smaller one was recovered at
the instance of accused Irfan. Thereafter, I took the JCL
to the police station alongwith SI P.N. Verma and three
accused persons, namely, Neeraj @ Nagar, Sandeep and
Irfan. The other accused, namely Vishal remained with
the IO, who conducted the further investigation qua him.
I got medically examined the accused persons. Later on,
the IO had recorded my statement in this regard. The
accused persons, namely, Neeraj @ Nagar, Vishal,
Sandeep @ Sindhi and Irfan @ Siddique are present in
the Court today. I can identify both the dandas if shown
to me."
42. Insp. Parasnath Verma stepped into the witness box as PW-31 and
deposed that:
"All the accused were got joined in investigation who
firstly took the police party to the scene of crime and
CRL.A. 88/2019 & CRL.A 700/2019 Page 23 of 41
pointed out the place of incident. IO prepared pointing
out memo to this effect which is already Ex.PW20/K. The
accused persons were further got joined in investigation.
Thereafter, the accused Irfan and Sandeep took the
police party to the park at the junction of MB Road,
and Tigri Road and they got recovered two dandas, one
danda by each accused, which were used in the crime.
Both the dandas were converted into cloth parcel
sealed with the seal of JS and taken into police
possession vide memo Ex.PW20/L & M. Memo
Ex.PW20/M bears my signature at point B. Thereafter,
the IO alongwith SI Manmeet and accused Vishal went
for further investigation while I alongwith SI Rakesh,
HC Dalbir and other staff brought accused Neeraj, Irfan
and Sandeep as well as JCL to PS. After sometime IO
Inspector Jarnail Singh alongwith SI Manmeet and
accused Vishal also returned back to the PS and IO had
deposited the case property in malkhana and then he
recorded statement of the witnesses. My statement was
also recorded."
43. A conjoint reading of the aforementioned testimonies of the prosecution
witnesses reveals that the bloodstained knife was recovered pursuant to
the disclosure statement of Vishal from 'the wall of nala near Saket
Court underneath a piece of stone near transformer', which was seized
vide seizure memo (Ex.PW32/B) and the dandas were recovered
pursuant to the disclosure statement of the accused persons Neeraj @
Nagar, Irfan Siddiqui and Sachin @ Sindhi from the 'park in Tigri
colony, MB Road, which were seized vide seizure memos (Ex.PW20/M)
and (Ex.PW20/L).
44. In relation to the recovery of articles at the instance of the Accused
persons, the Apex Court in a catena of judgments has held that the
recovery and the pointing out memo which directly links the accused
persons with the commission of the alleged offence is relevant and is
CRL.A. 88/2019 & CRL.A 700/2019 Page 24 of 41
admissible in the eyes of the law. While dealing with such a case, the
Hon'ble Supreme Court of India in the case of Debapriya Pal vs. State
of West Bengal reported at (2017) 11 SCC 31 has held as under: -
"10. ...Under Section 27 of the Evidence Act only so
much of recovery, as a result of the disclosure statement,
which directly pertains to the commission of crime is
relevant. Otherwise, such an evidence is barred Under
Section 25 of the Evidence Act. Recovery of laptop does
not have any bearing. It is neither the weapon of crime
nor it has any cause of connection with the commission of
crime. The law on this aspect is succinctly said in the
case "Jaffar Hussain Dastagir v. State of Maharashtra:
(1969) 2 SCC 872 in the following manner:
5. Under Section 25 of the Evidence Act no
confession made by an Accused to a police officer
can be admitted in evidence against him. An
exception to this is however provided by Section 26
which makes a confessional statement made before a
Magistrate admissible in evidence against an
Accused notwithstanding the fact that he was in the
custody of the police when he made the incriminating
statement. Section 27 is a proviso to Section 26 and
makes admissible so much of the statement of the
Accused which leads to the discovery of a fact
deposed to by him and connected with the crime,
irrespective of the question whether it is
confessional or otherwise. The essential ingredient
of the Section is that the information given by the
Accused must lead to the discovery of the fact which
is the direct outcome of such information. Secondly,
only such portion of the information given as is
distinctly connected with the said recovery is
admissible against the accused. Thirdly, the
discovery of the fact must relate to the commission
of some offence."
(emphasis supplied)
45. It was extensively argued by learned counsel for the accused persons
that the abovementioned recovery of knife and danda's is not admissible
CRL.A. 88/2019 & CRL.A 700/2019 Page 25 of 41
in the eyes of the law because no genuine and sincere efforts were made
by the investigating officer to authenticate the recovery with the
presence of an Independent/Public witness.
46. There is no good reason for this Court to disbelieve the said recovery
merely because the recovery witnesses PW-33, (Insp Jarnail Singh),
PW-32 (SI Manmeet) PW-20 (SI Rakesh Kumar) and PW-32 (Insp.
Parasnath Verma) happen to be police officers. In this context, we rely
on the case of Kripal Singh v. the State of Rajasthan reported in (2019)
5 SCC 646. The germane portion of the judgment is extracted below:
"17. The submission of the learned senior counsel for the
Appellant that recovery has not been proved by any
independent witness is of no substance for the reason that
in the absence of independent witness to support the
recovery in substance cannot be ignored unless proved to
the contrary. There is no such legal proposition that the
evidence of police officials unless supported by
independent witness is unworthy of acceptance or the
evidence of police officials can be out rightly
disregarded."
(emphasis supplied)
47. We are thus of the opinion that in the instant case, non-joining of public
witnesses at the time of recovery is not a sufficient ground to doubt the
truthfulness of the police witnesses on the above aspect or discard their
evidence completely as the testimonies of the police witnesses inspires
confidence.
48. Keeping in view the facts of the present case and on the basis of
corroborative testimonies of the material police witnesses, we find no
cogent reason to disbelieve the recovery made by the Investigating team
at the instance of the accused persons. The testimonies of the
CRL.A. 88/2019 & CRL.A 700/2019 Page 26 of 41
prosecution witnesses in relation to the recovery made pursuant to the
disclosure statement are consistent, trustworthy and corroborative; as
such the ground raised by learned counsel for the accused persons in
relation to the inadmissibility of the recovery of weapon of offence made
at the instance of the accused persons holds no ground.
Motive
49. Insofar as, the issue of motive is concerned, it is a settled legal
proposition that even if the absence of motive as alleged is accepted, that
is of no consequence and pales into insignificance when direct evidence
establishes the crime. Therefore, in case there is trustworthy evidence of
witnesses as to commission of an offence, the motive loses its
significance. However, if the genesis of the motive of the occurrence is
not proved but the evidence is worthy of reliance, the testimony of the
witness as to the occurrence could not be discarded only by the reason of
the absence of motive.
50. There is no such principle or rule of law that where the prosecution fails
to prove the motive for commission of the crime, it must necessarily
result in acquittal of the accused. Our view is fortified by the law laid
down by the Hon'ble Apex Court in Sardul Singh v. State of Haryana
reported in AIR 2002 SC 3462 wherein the Hon'ble Supreme Court held
that the motive is not always capable of precise proof, if proved, may
only lend additional support to strengthen the probability of commission
of the offence by the accused person, but the absence of proof does not
ipso facto warrant an acquittal.
CRL.A. 88/2019 & CRL.A 700/2019 Page 27 of 41
51. While dealing with a similar issue, the Hon'ble Apex Court in a recent
judgment titled as Khurshid Ahmed Vs State of Jammu And Kashmir
reported in 2018 7 SCC 429, has held that the motive is a double-edged
weapon and the same loses its importance when there are direct and
reliable evidence available on record. Relevant part from the aforesaid
judgment is extracted below:
"18. Another argument advanced is that there was no motive
to commit the offence and in the absence of strong motive,
the appellant cannot be held guilty under Section 302 IPC.
In the present case, motive can be traced from the evidences
produced by the prosecution with regard to the prior
incident that took place between the deceased and accused
in connection with payment of money over a transaction
where the accused stood as a guarantor. Because of the
earlier scuffle, the subsequent incident has occurred in
which the accused hit the deceased with an iron rod due to
which the deceased lost his life. It is appropriate to observe
that in Halsbury's Laws of England, 3rd Edn., with regard
to "motive", it is stated that "the prosecution may prove,
but it is not bound to prove the motive for a crime".
"Motive" is an emotion which compels the person to do a
particular act. But in all the cases, it will be very difficult
for the prosecution to prove the real motive. Motive is a
double-edged weapon when there is a direct and reliable
evidence available on record, motive loses its importance. In
a case of circumstantial evidence, motive assumes greater
importance than in the case of direct evidence. In a case of
direct and compelling evidence, even assuming that no
motive is attributed, still the prosecution version has to be
examined.
19. As regards to the importance of existence of motive in a
criminal case, here it is worthwhile to look at the ratio laid
down by this Court in Shivaji Genu Mohite v. State of
Maharashtra [Shivaji Genu Mohite v. State of Maharashtra,
(1973) 3 SCC 219 : 1973 SCC (Cri) 214 : AIR 1973 SC 55] :
(SCC pp. 224-25, para 12)
CRL.A. 88/2019 & CRL.A 700/2019 Page 28 of 41
"12. ... In case the prosecution is not able to discover
an impelling motive, that could not reflect upon the
credibility of a witness proved to be a reliable
eyewitness. Evidence as to motive would, no doubt, go
a long way in cases wholly dependent on
circumstantial evidence. Such evidence would form one
of the links in the chain of circumstantial evidence in
such a case. But that would not be so in cases where
there are eyewitnesses of credibility, though even in
such cases if a motive is properly proved, such proof
would strengthen the prosecution case and fortify the
court in its ultimate conclusion. But that does not
mean that if a motive is not established the evidence
of an eyewitness is rendered untrustworthy."
X X X
28. In view of the above discussion, we are of the
considered view that the direct oral evidence available on
record coupled with the medical evidence, points at the
guilt of the accused and not proving the motive for
commission of the offence lost its significance in the facts
of the case."
52. Herein it is relevant to highlight that the present case is based on direct
evidence and proof of motive will be an additional corroborative piece
of evidence, but keeping in mind the principles laid down by the
Hon'ble Apex Court, the inability of the prosecution to establish motive
is not always fatal to the case of prosecution and does not render any
benefit to the accused persons.
Common Intention
53. Learned counsel for the accused persons argued that the prosecution
failed to prove that the accused persons shared a common intention to
commit the alleged offence and hence, they can't be held guilty for the
offence punishable under Section 34 IPC.
CRL.A. 88/2019 & CRL.A 700/2019 Page 29 of 41
54. Before delving into the merits of the case, we deem it appropriate to
discuss the relevant provisions which are involved in the present case,
Section 34 of the IPC reads as under:
"34. Acts done by several persons in furtherance of
common intention. --When a criminal act is done by
several persons in furtherance of the common intention of
all, each of such persons is liable for that act in the same
manner as if it were done by him alone."
55. To bring an offence within the ambit of Section 34 IPC, the following
factors are necessary to be present there:
(1) The criminal act (consisting of a series of acts) should have
been done, not by one person, but more than one person.
(2) Doing of every such individual act cumulatively resulting in
the commission of criminal offence should have been in
furtherance of the common intention of all such persons.
56. Therefore, in order to constitute an offence under Section 34 IPC, the
accused is to be fastened with liability on the strength of Section 34 IPC,
that they should have done some act which has nexus with the offence.
Such an act need not be very substantial. It is enough that the act is only
for guarding the scene for facilitating the crime. The distinction between
a "common intention" and a "similar intention" which is real and
substantial is also not to be lost sight of. The common intention implies
a prearranged plan or a plan developed on the spur of the moment.
Such common intention which is developed on the spur of the moment
is different from the similar intention actuated by a number of persons
at the same time.
CRL.A. 88/2019 & CRL.A 700/2019 Page 30 of 41
57. In other words, the act need not necessarily be overt, even if it is only a
covert act, it is enough, provided such a covert act is proved to have
been done by the co-accused in furtherance of the common intention.
Even an omission can, in certain circumstances, amount to an act. So,
the act mentioned in Section 34 IPC need not be an overt act, even an
illegal omission to do a certain act in a certain situation can amount to an
act.
58. The Apex Court in the case of Rambilas Singh v. State of Bihar
reported in AIR 1989 SC 1593 the Hon'ble Supreme Court held as
under:
"It is true that in order to convict persons vicariously
under S. 34 or S. 149 IPC, it is not necessary to prove
that each and every one of them had indulged in overt
acts. Even so, there must be material to show that the
overt act or acts of one or more of the accused was or
were done in furtherance of the common intention of all
the accused or in prosecution of the common object of
the members of the unlawful assembly."
(emphasis supplied)
59. The aforesaid judgment was followed by the Apex Court in the case of
Suresh &anr v. State of UP reported in 2001 3 SCC 673. The germane
portion of the judgment is extracted below:
"37. However, in view of the importance of the matter,
insofar as the interpretation of Section 34 of the Indian
Penal Code is concerned, we have chosen to express our
views in the light of consistent legal approach on the
subject throughout the period of judicial
pronouncements. For the applicability of Section 34 to a
co-accused, who is proved to have common intention, it
is not the requirement of law that he should have
actually done something to incur the criminal liability
with the aid of this section. It is now well settled that no
CRL.A. 88/2019 & CRL.A 700/2019 Page 31 of 41
overt act is necessary to attract the applicability of
Section 34 for a co-accused who is otherwise proved to be
sharing common intention with the ultimate act done by
any one of the accused sharing such intention.
38. Section 34 of the Indian Penal Code recognizes the
principle of vicarious liability in criminal jurisprudence.
It makes a person liable for action of an offence not
committed by him but by another person with whom he
shared the common intention. It is a rule of evidence and
does not create a substantive offence. The section gives
statutory recognition to the commonsense principle that if
more than two persons intentionally do a thing jointly, it
is just the same as if each of them had done it
individually. There is no gainsaying that a common
intention presupposes prior concert, which requires a
prearranged plan of the accused participating in an
offence. Such preconcert or preplanning may develop on
the spot or during the course of commission of the
offence but the crucial test is that such plan must
precede the act constituting an offence. Common
intention can be formed previously or in the course of
occurrence and on the spur of the moment. The existence
of a common intention is a question of fact in each case
to be proved mainly as a matter of inference from the
circumstances of the case.
39. The dominant feature for attracting Section 34 of the
Indian Penal Code (hereinafter referred to as "the
Code") is the element of participation in absence
resulting in the ultimate "criminal act". The "act"
referred to in the later part of Section 34 means the
ultimate criminal act with which the accused is charged
of sharing the common intention. The accused is,
therefore, made responsible for the ultimate criminal act
done by several persons in furtherance of the common
intention of all. The section does not envisage the
separate act by all the accused persons for becoming
responsible for the ultimate criminal act. If such an
interpretation is accepted, the purpose of Section 34 shall
be rendered infructuous.
CRL.A. 88/2019 & CRL.A 700/2019 Page 32 of 41
60. Keeping in view the facts of the present case and applying the principles
laid down by the Hon'ble Apex Court, it is established that common
intention necessitates prior concert which requires a prearranged plan,
but such preconcert may develop on the spur of the moment and will
make the accused persons responsible for the ultimate criminal act done
by several persons. Further, on the basis of evidence borne out from the
previous part of the judgment, it is substantiated that all the accused
persons in furtherance of their common intention were actively involved
in the commission of the alleged offence.
Culpable Homicide Vs. Murder
61. During the course of arguments, learned APP for the State labored hard
to contend that the learned trial court erred in convicting the accused
persons only for the offence punishable under Section 326/34 IPC,
ignoring the fact that the deceased (Jagat Singh) had lost his life in the
incident and that the other two victims PW-8 (Smt. Kamla Devi) and
PW-13 (Smt. Prakashoo Devi) suffered grievous injuries which were
dangerous enough to cause death.
62. Hence, based on the evidence borne out from the previous part of the
judgment this Court is of the view that it is essential to first analyze that
whether the present case would fall within the ambit of Section 302 or
Section 304 of the Indian Penal Code.
63. Section 304 of the Indian Penal Code, reads as under:
"304. Punishment for culpable homicide not
amounting to murder.--Whoever commits culpable
homicide not amounting to murder shall be punished with
1[imprisonment for life], or imprisonment of either
CRL.A. 88/2019 & CRL.A 700/2019 Page 33 of 41
description for a term which may extend to ten years, and
shall also be liable to fine, if the act by which the death is
caused is done with the intention of causing death, or of
causing such bodily injury as is likely to cause death, or
with imprisonment of either description for a term which
may extend to ten years, or with fine, or with both, if the
act is done with the knowledge that it is likely to cause
death, but without any intention to cause death, or to
cause such bodily injury as is likely to cause death."
64. An offence is stated to be culpable homicide not amounting to murder,
punishable either under Part I or Part II of Section 304 IPC, if:-
a) It comes under any of the five exceptions mentioned under
Section 300 IPC, or
b) It does not come under the four clauses of the definition
contained in Section 300 IPC.
65. Consequently, if any of the Exceptions mentioned under Section 300
IPC are attracted, the offence would be punishable under Part-I of
Section 304 IPC. Section 300 IPC which reads as under :-
"300. Murder.--Except in the cases hereinafter excepted,
culpable homicide is murder, if the act by which the death
is caused is done with the intention of causing death, or--
Secondly.--If it is done 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, or--
Thirdly--If it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to
cause death, or--
Fourthly--If the person committing the act knows that it is
so imminently dangerous that it must, in all probability,
cause death, or such bodily injury as is likely to cause
death, and commits such act without any excuse for
CRL.A. 88/2019 & CRL.A 700/2019 Page 34 of 41
incurring the risk of causing death or such injury as
aforesaid.
xxx xxx xxx
Exception 4.--Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the
offender's having taken undue advantage or acted in a
cruel or unusual manner.
Explanation.--It is immaterial in such cases which party
offers the provocation or commits the first assault."
66. In Rajendra Singh Vs. State of Bihar, reported at AIR 2000 SC 1779 it
has been held that :
"In order to bring the case within Exception 4 to Section
300 of Indian Penal Code all the following conditions
have to be fulfilled, namely, (1) The act must be
committed without premeditation in a sudden fight in
the heat of passion; (2) when there was a sudden
quarrel; (3) without the offender taking undue
advantage; (4) and the accused had not acted in a cruel
or unusual manner. Therefore, there must be a mutual
conduct or exchanging of blows on each other. When the
deceased was armed and did not cause any injury to the
accused even following a sudden quarrel and the accused
has inflicted fatal blows on the deceased, Exception 4 is
not attracted" - In Kikar Singh Vs. State of Rajasthan
AIR 1993 SC 2426, it was held that :
"If the accused used deadly weapons against the
unarmed man and struck a blow on the head it must
be held that giving the blows with the knowledge
that they were likely to cause death, he had taken
undue advantage.
14. Considering the background facts in the light of the
principle set out above, the inevitable conclusion is that
Exception 4 to Section 300 IPC is applicable and the
offence is relatable to Section 304 Part I and not Section
302 IPC. That being, so the conviction is altered.
Custodial sentence of 10 years would meet the ends of
justice.
CRL.A. 88/2019 & CRL.A 700/2019 Page 35 of 41
15. The appeal is allowed to the aforesaid extent."
67. In Sandhya Jadhav v. State of Maharashtra reported at 2006 Cri LJ
2111, the Hon'ble Supreme Court came to the conclusion that the Courts
are bound to consider a large number of factors for arriving at an
opinion as to whether the fight was sudden or not and whether the
offender has taken undue advantage of the situation in the following
words:
"9. The Fourth Exception to Section 300 IPC covers
acts done in a sudden fight. The said Exception deals
with a case or prosecution not covered by the First
Exception, after which its place would have been more
appropriate. The Exception is founded upon the same
principle, for in both there is absence of
premeditation.....
.... The help of Exception 4 can be invoked if death is
caused (a) without premeditation; (b) in a sudden fight;
(c) without the offender having taken undue advantage
or acted in a cruel or unusual manner; and (d) the fight
must have been with the person killed. To bring a case
within Exception 4 all the ingredients mentioned in it must
be found. It is to be noted that the "fight" occurring in
Exception 4 to Section 300 IPC is not defined in IPC. It
takes two to make a fight. Heat of passion requires that
there must be no time for the passions to cool down and in
this case, the parties have worked themselves into a fury
on account of the verbal altercation in the beginning. A
fight is a combat between two or more persons whether
with or without weapons. It is not possible to enunciate
any general rule as to what shall be deemed, to be sudden
quarrel. It is a question of fact and whether a quarrel is
sudden or not must necessarily depend upon the proved
facts of each case. For the application of Exception 4, it
is not sufficient to show that there was a sudden quarrel
and there was no premeditation. It must further be
shown that that the offender has not taken undue
advantage or acted in cruel or unusual manner. The
CRL.A. 88/2019 & CRL.A 700/2019 Page 36 of 41
expression "undue advantage" as used in the provision
means "unfair advantage."
68. Considering the circumstances of the present case and the fact that two
incidents had occurred on the same date, within a very short span of
time, we are of the view that the aforesaid confrontation took place in
the heat of passion upon a sudden quarrel. Both the incidents had
occurred in about an hour as the first incident had occurred at 05:30 pm
wherein the accused persons had wrongfully restrained (PW-1) Kumari
Barkha and had robbed and knocked down (PW-10) Mohsin. Thereafter
at about 06:30 pm all the accused persons arrived in the gali in front of
the house of PW-1 (Kumari Barkha), wherein Vishal had Knife and the
remaining three accused persons (Neeraj @ Nagar, Irfan Siddique and
Sachin @ Sindhi) had dandas in their hands. Further as per the MLC of
the other two victims (Prakasho Devi & Kamla Devi) and as per the post
mortem report of the deceased two stab wounds measuring 3x1cm were
present on the abdomen of the deceased Jagat Singh, one stab wound
measuring 3x2 cm was present over the abdomen of Kamla Devi and
one stab wound measuring 3x2 cm was present on the left side of upper
abdomen of Prakasho Devi. Herein it is relevant to highlight that the
injuries inflicted were sufficient in the ordinary course of nature to cause
death, but such injuries cannot be termed to be either inflicted in a cruel
or unusual manner.
69. In similar facts, in the case of Sukhbir Singh vs. State of Haryana
reported in (2002) 3 SCC 327, wherein two fatal blows were inflicted by
the appellant by a bhala on the upper right portion of chest of the
CRL.A. 88/2019 & CRL.A 700/2019 Page 37 of 41
deceased, the Hon'ble Apex Court opined that the two injuries cannot be
termed to be either inflicted in a cruel or unusual manner. The germane
portion of the judgment is extracted below:
17.....Sudden fight, though not defined under the Act,
implies mutual provocation. It has been held by the
courts that a fight is not per se palliating circumstance
and only unpremeditated fight is such. The time gap
between quarrel and the fight is an important
consideration to decide the applicability of the incident.
If there intervenes a sufficient time for passion to
subside, giving the accused time to come to normalcy
and the fight takes place thereafter, the killing would be
murder but if the time gap is not sufficient, the accused
may be held entitled to the benefit of this exception.
18. In the instant case, concededly, there was no enmity
between the parties and there is no allegation of the
prosecution that before the occurrence, the appellant
and others had premeditated. As noticed earlier, the
occurrence took place when Sukhbir Singh got mud
splashes on account of sweeping of the street by Ram
Niwas and a quarrel ensued. The deceased gave slaps to
the appellant for no fault of his. The quarrel appeared to
be sudden, on account of heat of passion. The accused
went home and came armed in the company of others
though without telling them his intention to commit the
ultimate crime of murder. The time gap between the
quarrel and the fight is stated to be a few minutes only.
According to Gulab Singh (PW 10) when Sukhbir Singh
was passing in the street and some mud got splashed on
his clothes, he abused Ram Niwas. They both grappled
with each other whereupon Lachhman (deceased)
intervened and separated them. Accused Sukhbir had
abused Lachhman who gave him two slaps. The said
accused thereafter went to his home after stating that he
would teach him a lesson for the slaps which had been
given to him. After some time he, along with other
accused persons, came at the spot and the fight took
CRL.A. 88/2019 & CRL.A 700/2019 Page 38 of 41
place. His own house is at a different place. There is a
street in between his house and the house of Lachhman
(deceased). On the northern side of his house, the house
of the appellant is situated. Similarly Ram Niwas (PW 11)
has stated that after the quarrel the accused went towards
his house and within a few minutes he came back with
other accused persons. It is, therefore, probable that
there was no sufficient lapse of time between the quarrel
and the fight which means that the occurrence was
"sudden" within the meaning of Exception 4 of Section
300 IPC.
19.The High Court has also found that the occurrence
had taken place upon a sudden quarrel but as the
appellant was found to have acted in a cruel and unusual
manner, he was not given, the benefit of such exception.
For holding him to have acted in a cruel and unusual
manner, the High Court relied upon the number of
injuries and their location on the body of the deceased. In
the absence of the existence of common object, the
appellant cannot be held responsible for the other injuries
caused to the person of the deceased. He is proved to have
inflicted two blows on the person of the deceased which
were sufficient in the ordinary course of nature to cause
his death. The infliction of the injuries and their nature
proves the intention of the appellant but causing of such
two injuries cannot be termed to be either in a cruel or
unusual manner. All fatal injuries resulting in death
cannot be termed as cruel or unusual for the purposes of
not availing the benefit of Exception 4 of Section 300 IPC.
After the injuries were inflicted and the injured had
fallen down, the appellant is not shown to have inflicted
any other injury upon his person when he was in a
helpless position. It is proved that in the heat of passion
upon a sudden quarrel followed by a fight, the accused
who was armed with bhala caused injuries at random
and thus did not act in a cruel or unusual manner."
(emphasis supplied)
CRL.A. 88/2019 & CRL.A 700/2019 Page 39 of 41
70. Similarly, in Ghapoo Yadav and Ors. v. State of M.P. (2003) 3 SCC
528 and Sukbhir Singh v. State of Haryana (2002) 3 SCC 327, it was
observed that:
" ...After the injuries were inflicted the injured has fallen
down, but there is no material to show that thereafter
any injury was inflicted when he was in a helpless
condition. The assaults were made at random. Even the
previous altercations were verbal and not physical. It is
not the case of the prosecution that the accused
Appellants had come prepared and armed for attacking
the deceased...."
71. Applying the law laid down by the Apex Court to the present case and
having regard to the oral evidence as well as the fact that two incidents
of the same date occurred within a very short span of time, we are of the
view that the occurrence took place in the heat of passion upon a sudden
quarrel. Further, it is firmly established that the accused persons used the
knife & Dandas to cause bodily injury, moreover did not take any undue
advantage and did not act in a cruel or unusual manner because when the
injured persons had fallen down and when they were in a helpless
position, no further injuries were inflicted on them by the accused
persons. Thus, in our view, the case of the accused persons squarely falls
within the Exception 4 to Section 300 IPC.
Conclusion
72. Since the case of the accused persons falls within the purview of
Exception 4 to Section 300 IPC, they cannot be held guilty of the
offence of culpable homicide amounting to murder and the offence
committed by them falls within the category of culpable homicide not
CRL.A. 88/2019 & CRL.A 700/2019 Page 40 of 41
amounting to murder under Section 304 part I of the IPC, we partially
allow the appeal filed by the state(CRL.A. 700/2019) to the extent that
instead of Section 302 IPC, the accused shall stand convicted for the
offence of culpable homicide not amounting to murder punishable under
Section 304 Part I read with Section 34 IPC and consequently, accused
persons are sentenced to ten years rigorous imprisonment under Section
304 Part-I IPC. Sentence of fine stands unaltered and conviction for the
offence punishable under Section 326 IPC is set aside.
73. With the aforesaid modification of sentence, CRL.A. 700/2019 stands
partly allowed and CRL.A. 88/2019 being devoid of merit is dismissed.
74. Copy of the order be communicated to the Trial Court as well as to the
Jail Superintendent, Tihar Jail.
75. Trial Court record be sent back along with a copy of this order
SANGITA DHINGRA SEHGAL, J.
MANMOHAN, J. NOVEMBER 14, 2019 SU CRL.A. 88/2019 & CRL.A 700/2019 Page 41 of 41